Arbitration Team of the Month #19
Introduction
Competence-competence is still very much an integral part of investor-State arbitration cases. Jurisdiction rationibus materiae et personae especially can be at the heart of an investment dispute, as the very existence of the investment can determine the whole fate of a case. Jurisprudence has its importance in these cases as prior determinations as to what elements constitute an investment are always useful for arbitral tribunal to consider, if not follow.
This month’s ATOM, Clyde & Co LLP, successfully obtained the bifurcation of the proceedings in Hope Services v. Cameroon for Cameroon and went on to winning the case, as the arbitral Tribunal found itself to lack jurisdiction.
Clyde & Co LLP is this month’s ATOM for its extensive work in international arbitration. According to data available on Jus Mundi, Clyde & Co has been involved in at least 57 international case(s) known by Jus Mundi (11 Investor-States, 46 Commercial Arbitrations). 8 of these cases are pending and 1 ICSID case is pending annulment.
Their high-profile cases cover a wide range of economic sectors, including financial and insurance activities, mining and quarrying, transportation and storage, construction, electricity, gas, steam and air conditioning supply (energy), wholesale and retail trade; repair of motor vehicles and motorcycles, administrative and support service activities, information and communication, real estate activities, public administration and defense; compulsory social security, arts, entertainment and recreation, professional, scientific and technical activities.
This month, Jus Mundi is pleased to bring light on Clyde & Co and its international arbitration practice.
Recent victory case analysis
Facts
- The Hope Group, directed by Mr. Foumbi, sought to develop and exploit an internet platform to connect foreign donors and local public development projects in Cameroon. Contracts were allegedly signed with the Cameroonian authorities in 2010 and 2011.
- The arrest and detention of the main director, Mr. Foumbi, by the Cameroonian police on allegations of fraud led to this case. Mr. Foumbi claimed that his arrest ended the projects of the Group in Cameroon.
- The proceedings were bifurcated early on for the Tribunal to establish whether it had competence over the case.
- Cameroon raised jurisdictional objections, both ratione materiae and ratione personae. The State also invoked an abuse of right defense. It also claimed it validly refused that the protection of the BIT be afforded to the Claimant pursuant to the BIT’s denial of benefits provision.
Tribunal constitution
- Maxi Scherer (President)
- Nassib G. Ziadé (Appointed by the investor)
- Pierre Mayer (Appointed by the State)
Legal rationale
- The Tribunal rejected Cameroon’s contention that the BIT’s denial of benefits provision had been validly invoked as it availed itself of that clause belatedly. The Tribunal deemed that the timeline for Cameroon to hold the consultations for the denial of benefits provision with the USA was not prompt enough to satisfy the BIT’s conditions.
- Cameroon had sought to consult with the USA months after the arbitration had been registered by ICSID.
- The Tribunal found that the consultations were not held promptly, as required by the BIT clause. The consultations should have been held soon after Cameroon learned that an arbitration was imminent.
- The Tribunal dismissed the case for lack of jurisdiction both ratione materiae and ratione personae, as it was established that Hope Services had made no investment in Cameroon.
- The Tribunal was satisfied that an investment existed for jurisdictional purposes. It looked at the criteria established by previous jurisprudence e., contribution, duration, risk, and territorial link, but also took a holistic approach.
- The Tribunal did not find, however, that the Claimant owned or controlled that investment. The American entity, Hope Services LLC, was not convincingly shown as having been a party to the contracts which constituted the investment.
- The Tribunal also found insufficient evidence that Hope Services controlled the investment and had participated in the project, in spite of an alleged stake in the local companies of the Group.
- The Tribunal declined to rule on any further contention as it found it lacked jurisdiction over the case.
Presentation of the law firm & international arbitration practice
Clyde & Co is a dynamic international law firm operating from over 50 offices and associated offices in six continents. With 1,800 lawyers, they focus on providing a complete legal service to businesses and governments around the world.
Clyde & Co has one of the largest dispute resolution practices in the world which specializes in international arbitration and ADR. It includes over 70 partners and more than 400 litigators worldwide, with considerable experience in large scale dispute resolution in all the international arbitration hubs. They act for a vast range of clients on the full spectrum of international arbitration disputes ranging from disaster level events, through to big ticket, cross border disputes and smaller, but nonetheless important, cases.
Their teams have deep sectorial expertise representing parties in both commercial and investor-state arbitrations, with a special focus on Europe, Africa, the Middle East, and Latin America. Their experience covers both ad hoc arbitration and arbitrations conducted under the rules of major arbitral institutions.
Key clients of the firm’s international arbitration practice
- Republic of Cameroon
- Government of the Republic of Yemen
- Liberty House Group
- Government of Ukraine
Track-record & Recent instructions
Clyde & Co’s notable past cases and arbitration instructions include:
- Republic of Cameroon
ICSID Case No. ARB/20/2 – Hope Services v. Cameroon
An ICSID arbitration brought by Hope Services in January 2020 against the Republic of Cameroon. Hope Services brought the arbitration under the US-Cameroon BIT, over the imprisonment in Cameroon of its CEO, Jean Emmanuel Foumbi, and the alleged expropriation of an online platform to help fund community projects. This matter cements Clyde & Co’s status as an arbitration heavyweight due to the significant matter value of this dispute (around US$ 1 billion).
- Republic of Cameroon
ICSID case no. ARB/15/18 – Capital Financial Holdings Limited v. The Republic of Cameroon – Annulment Proceedings.
This matter is a demonstration of Clyde & Co’s experience of handling annulment proceedings and winning big ticket, heavily publicised cases.
- Liberty House Group
ICC Case No. 24579/DDA – Rio Tinto v. Liberty House
A post-M&A ICC arbitration with Rio Tinto relating to the purchase of an aluminium factory in northern-France.
This matter demonstrates Clyde & Co Paris’ track record for handling complex multi-party ICC arbitrations. It also showcases our offering with regard to high-value post-M&A disputes.
- Government of Ukraine
ICSID arbitration brought by several Philip Morris entities under Ukraine’s bilateral investment treaties with the US and Switzerland. Claimants are seeking to be reimbursed for the fine that was imposed upon them by the Antimonopoly Committee of Ukraine for creating artificial barriers to other market entrants.
- ICC arbitration in the oil and gas sector in sub-Saharan Africa
An ICC arbitration arising out of the sinking of a CALM Buoy used on an oil export terminal in sub-Saharan Africa. The proceedings were settled during the jurisdictional phase.
- Dispute between a Sub-Saharan African State and a construction contractor
Representing a Sub-Saharan African State in an UNCITRAL arbitration administered by the Permanent Court of Arbitration. The matter arose out of the construction of a road in a Sub-Saharan African state.
- Enforcement proceedings in Northern Africa
Representing a European oil and gas company in local enforcement proceedings in Northern Africa.
- Set-aside proceedings in France
Representing a Sub-Saharan state-owned entity in set-aside proceedings before the French courts. The client is seeking to defend an ICC award rendered in 2021.
- Oil and gas dispute in Western Africa
Sitting as co-arbitrator in to related ICC arbitrations arising out of distribution agreements for oil and gas products in Sub-Saharan Africa.
- Real estate dispute in Central Africa
Nadia Darwazeh was appointed by the parties as sole-arbitrator in this ad hoc arbitration under the UNCITRAL rules. The matter arose between a real-estate company and an international not-for-profit organisation out of the termination of a rental agreement after a fire in the not-for-profit organisation’s premises in a city in sub-Saharan Africa.
- Telecoms dispute in Western Africa
Sitting as President of the Tribunal in a dispute in Western Africa arising out of the sale of a telecoms company
Table of international arbitration cases involving Clyde & Co*
Clyde & Co is currently acting as counsel in multiple investor-State and commercial arbitration cases, notably representing clients in ICC proceedings.
Clyde & Co earns its spot to be the ATOM for its extensive track record of international arbitration cases and clients. We selected a few recent victories and ongoing cases in the table below.
Please click here to see all types of cases (investor-State, inter-State, and commercial arbitration) involving Clyde & Co available on Jus Mundi.
(Note*: This table is not exhaustive.)
Spotlight
Hope Services v. Cameroon team
- Nadia Darwazeh| Head of Arbitration Paris, Partner | Paris | Full Profile
Nadia Darwazeh has over twenty years of experience acting as counsel and sitting as arbitrator in commercial and investor-state arbitrations covering numerous applicable laws and seats of arbitration. Nadia’s experience spans the commercial spectrum, with particular focus on M&A, construction, telecoms, pharmaceuticals, energy and natural resources. She regularly handles disputes arising out of joint-venture, shareholder and distribution agreements, as well as investment treaties.
- Sophie Gremaud| Counsel | Paris | Full Profile
Sophie Gremaux focuses on litigation and commercial arbitration relating notably to liability, insurance and reinsurance issues. Her experience includes coverage, monitoring and defence in matters of industrial risks, political risks, directors and officers liability, reinsurance, professional liability (lawyers, brokers,…), art and species, new technologies, data security and fraud.
- Antoine Lerosier| Associate | Paris | Full Profile
Antoine Lerosier has particular experience working on investment arbitration proceedings under ICSID and UNCITRAL rules, inter-State proceedings before international bodies, such as the Permanent Court of Arbitration (PCA) and the African Commission on Human and Peoples’ Rights (ACHPR), as well as international commercial arbitration cases under ICC and ad hoc rules.
- Sarah Lucas| Associate | Paris | Full Profile
Sarah Lucas has experience acting as counsel in commercial and investor-state arbitration under major arbitral rules, including the ICC and ICSID. Whether she is representing multinational companies or protecting the interests of sovereign States, Sarah acts for her clients on a wide range of complex, multi-jurisdictional arbitrations. She also deals with annulment proceedings with respect to investor-state arbitration awards.
- Dilara Khamitova| Jurist | Paris | Full Profile
Dilara Khamitova’s practice focuses on international commercial and investment arbitration as well as on public international law. Dilara is particularly active in sectors such as oil and gas, construction and international trade, advising clients in Europe, Middle East, Africa and Central Asia
Congratulations to the team again. Jus Mundi wishes them good luck for the future!
