Arbitration Team of the Month #29
Jus Connect is pleased to nominate Foley Hoag for its coveted Arbitration Team of the Month (ATOM) Award, in appreciation for the firm’s extensive work in international arbitration as well as its standing in the United States and worldwide.
Foley Hoag has an impressive track record in arbitration. They have been involved in at least 144 international and domestic arbitration case(s) known by Jus Mundi (83 Investor-State, 33 Inter-State, 27 Commercial Arbitration, and 1 Advisory Proceedings) in a variety of economic sectors including, Energy – Oil & Gas, Mining, and Energy – Electric Power.
Christina Hioureas and Diana Paraguacuto-Mahéo, Partners and Co-chairs of the International Litigation & Arbitration Department at Foley Hoag, along with Constantinos Salonidis, discuss Foley Hoag’s culture & growth and commitment to diversity and social justice.
Congratulations on winning this coveted award! Can you tell us about Foley Hoag & its international arbitration practice?
Foley Hoag’s International Litigation and Arbitration practice is unique among law firms. In addition to its highly-renowned public international law practice, the firm boasts sophisticated international investment and international commercial arbitration practices that handle complex and high-volume controversies. It also has a first-of-its-kind United Nations (UN) Practice Group, advising States on matters before the UN. The firm also represents clients before American, French, and other domestic courts in matters related to sovereign immunities and international arbitration, including recognition, enforcement and vacature/set aside of arbitral awards.
Diverse rankings have recognized our attorneys among the best in the world. Many of our attorneys are frequently appointed as arbitrators, including under ICC, ICDR, AAA, UNCITRAL, and LCIA rules.
Tell us more about your arbitration practice’s track record.
The firm saw its portfolio of cases and clients grow significantly this year under the leadership of its partners, who have brought in several new international arbitration and litigation matters. Our list of sovereign clients includes Albania, Angola, Armenia, Bangladesh, Brazil, Chile, Croatia, Cyprus, Ecuador, France, Ghana, Greece, Guyana, India, Japan, Luxembourg, Liechtenstein, Mauritius, Mozambique, Nepal, The Netherlands, Peru, Panama, Qatar, Sierra Leone, Spain, Ukraine, Uruguay, among other States, as well as various private entities.
In the investor-State arbitration field, Foley Hoag is known for exclusively representing sovereign States and their entities and has successfully represented its clients in multi-million dollar disputes in various sectors, including mining, oil and gas, solar and wind, telecommunications, cybersecurity, transportation, and construction. Earlier this year, we helped Nepal secure a complete victory in its first investment arbitration, Japan defeat its first investment arbitration case, and Nicaragua defeat a claim related to a hydrocarbon concession.
In past years, we achieved a complete victory on behalf of a Bangladesh State-owned entity in an ICC arbitration brought by a U.S.-based solar power company involving purported force majeure event arising from the influx of Rohingya refugees from Myanmar in connection with a large-scale solar power project, and victories for Mauritius, Petrobangla & BAPEX, or Uruguay, among the most notable. We also helped Croatia obtain a ground-breaking decision by Frankfurt’s Higher Regional Court declaring the arbitration proceedings instituted by two banks inadmissible.
Foley Hoag’s international commercial arbitration practice advises clients, including both private corporate entities and State-owned enterprises, in a wide variety of contractual disputes, including those involving construction, agribusiness, intellectual property, oil and gas, and energy. Recently, the firm achieved a successful settlement result for private entity in a price revision contractual dispute under UNCITRAL rules regarding changing market fundamentals in connection with the sale and purchase of food and water provisions resulting from the effects of the Ukraine-Russia conflict and the COVID-19 pandemic on energy costs and supply chains.
Tell us about yourselves, how you came to work in arbitration, and your experience acting as arbitrators.
Christina Hioureas : As you know, I am a partner and co-chair of the International Litigation & Arbitration Department at Foley Hoag and Chair of the United Nations Practice Group. In this capacity, I represent States, State-owned and private entities in public and private international law matters, including international litigation, international investment treaty (ICSID, UNCITRAL), international commercial arbitration, and UN advisory work. These are highly-complex and high-stakes matters, including claims upwards of $10 billion. I also serve as arbitrator in international arbitration matters under various arbitral rules (ICC, LCIA, ICDR, AAA, UNCITRAL, CPR) in claims ranging from construction and energy to cybersecurity and discrimination/social justice and mass/class-action arbitrations, in amounts exceeding $650 million. Finally, I serve as counsel in U.S. courts under the Alien Torture Statute/Torture Victim Protection Act, Foreign Sovereign Immunities, Federal Arbitration Act.
I was recruited by Constantinos Salonidis and Paul Reichler to Foley Hoag in the U.S. and made it my home.. At our firm, I practice with some of the top minds in international law and arbitration and it is a privilege to work with such an impressive team.
As a first-generation American, college graduate and lawyer, I view becoming a partner of a top AmLaw firm, department chair of a globally ranked international law and arbitration practice, and founder of the firm’s UN practice as a testament to the American Dream. My parents left Greece during the military dictatorship in search of greater opportunities. My maternal grandmother, Christina (after whom I am named), was an orphan, deprived of the opportunity to learn how to read because of her gender and socio-economic status. Only two generations later, her granddaughter represents developing countries and advocates for victims of human rights violations before international courts and tribunals and at the UN on matters ranging from climate change, human rights, decolonization, and reproductive rights to anti-corruption, economic development, and the right of States to regulate in the public interest. I draw my inspiration from the ability to affect change – be it advocating on behalf of an individual seeking justice for a human rights violation, a corporation that has been defrauded, or a State protecting its national interests.
Diana Paraguacuto-Mahéo: I am a partner and co-chair of the International Litigation & Arbitration Department at Foley Hoag and Managing Partner of the Paris Office. I act as counsel, mediator, and arbitrator in international commercial and investment arbitration proceedings in high stakes and complex disputes involving industries such as green energy, agri-food, construction, defense, energy, infrastructure, mining, new technologies, telecommunications, transportation, and art.
I have two decades of experience advising my clients on issues in connection with complex industrial or infrastructure projects, such as acts of corruption, termination of long-term partnerships, revocation of licenses and operating rights, implementation of exclusion clauses, violation of defense secrecy, infringement of intellectual property rights and other acts of unfair competition.
My practice extends to all stages of arbitration proceedings, and includes obtaining emergency relief, immunities from jurisdiction and execution, annulment proceedings and negotiating out of the box settlement agreements. I am also a member of the International Court of Arbitration of the ICC and I regularly teach classes to the younger generation of arbitration practitioners.
I was born citizen of the world, from a Venezuelan father working in oil and infrastructure businesses and a fearless globally minded French mother. Growing up between Venezuela and France, I never felt fully French nor fully Venezuelan. Very early I decided that my playground would be the world and I embraced international law so as not to be tied to one jurisdiction. Along the way I found extraordinary mentors and role models such as Pierre Mayer and Michael Nolan.
In the meantime, unfortunately, the life of my father had been violently taken away in Venezuela and my family was faced with an inoperative justice system. This further motivated my quest for justice. I very early on adopted a holistic view of dispute resolution and always strove to find the best tool to efficiently solve my clients’ disputes. I therefore diversified my practice as much as possible, including while at Milbank, where I delved into the then new investment arbitration world, U.S. bankruptcy litigation and commercial mediation. After a decade in the US, I then decided to return to the city of lights. When Paul Reichler and Daniel Schimmel approached me and invited me to join Foley Hoag, I was seduced by the firm’s vision and dedication to client service in a practice area that is quickly evolving. Today, I have the extreme privilege of working with the brightest attorneys who also happen to be extraordinary individuals. When I look through the window of Foley Hoag, I see a world of opportunities to fight for justice.
Foley Hoag is recognized for its commitment to diversity in arbitration and even won our Arbitration Team of the Year Award in 2020 in the category “female empowerment”. How do you think the field has evolved since then in this regard?
Foley Hoag’s commitment to diversity in arbitration continues to grow. As you mentioned above, Jus Mundi named us Arbitration Department of the Year in 2020 not only because of our track record, but because of the firm’s nomination ratio of female arbitrators. This continues to be the case in our department. 49% of our team is composed of women, with 40% of partners also being women. Just this past June, a team of Foley Hoag attorneys participated in the hearing in the ICSID arbitration Quanta v. Peru, a historic case in that it is the first all-women ICSID tribunal. The majority of counsel representing both parties were also women.
Firm-wide, our Diversity, Equity and Inclusion department has established a number of affinity groups dedicated to expand awareness about racial and social issues related to diversity, equity and inclusion matters. Amongst these groups are the Women Associates Group, Women’s Forum, and Womxn of Color.
Christina Hioureas: Our firm, and our practice specifically, greatly values diversity, equity and inclusion. We recognize that our clients are better served through the exchange of views from individuals coming from varied backgrounds and trained in different judicial systems. Our team is composed of approximately 60 attorneys, who speak more than 20 different languages, and who are trained in civil and common law jurisdictions.
In addition to the importance of diversity in our hiring and team regarding ages, races, ethnic origins, abilities/disabilities, genders, religions, cultures and sexual orientation, we also value diversity from a socioeconomic perspective. Personally, I view it as important to ensure that we are taking into account all forms of diversity, including diversity of opportunities, such as economic and life circumstances.
Diana Paraguacuto-Mahéo: At Foley Hoag, we believe our people are our greatest asset and we therefore strive to foster an inclusive environment that attracts, engages, and retains the best possible talent. This commitment to diversity, equity and inclusion traces its roots to the founding of the firm in 1943 when Henry Foley and Garrett Hoag decided to create the first multi-confessional law firm in the United States.
Being of mixed origin myself, I consider this commitment to be a cornerstone to good leadership. In addition to increasing the talent pool, diversity is the core of our success as a firm and as a department, notably in the multicultural environment of our practice. Diversity fosters creativity and innovation, and leads to better outcomes with a cohesive, and empathetic work environment. At Foley Hoag we strive for a more just and inclusive society where everyone has an opportunity to succeed.
Can you tell us about the Foley Hoag foundation?
The mission of the Foley Hoag Foundation is to support programs addressing inequity in its various forms, including work that reduces racial, ethnic, gender, and wealth disparities and promotes social justice, access to societal resources, and recognition of the inherent dignity of all people in the firm’s U.S. cities.
The Foley Hoag Foundation’s roots trace back to Boston’s landmark school desegregation case in which Foley Hoag successfully represented the plaintiffs pro bono. Using fees awarded to the firm, the partners established the Foley Hoag Foundation in 1980. Since 1981, the Foundation has awarded more than $3,800,000 in grants to over 475 organizations and continues to hold two grant rounds per year open to local organizations working to improve the communities where Foley Hoag has offices.
The Foundation’s Executive Director and five-member Board of Trustees, which includes three firm partners, guide the work of the Foundation. Employees at Foley Hoag play an active role in the activities of the Foundation, including reviewing grant proposals, recommending grantees to the Foundation’s trustees, and brainstorming, organizing, and facilitating the Foundation’s Speaker Series, volunteer opportunities, and other partnerships.
How important is visibility for your arbitration team? In what ways does Foley Hoag promote its arbitration practice and practitioners?
Foley Hoag has a team of Business Development professionals who work with the attorneys of our International Litigation & Arbitration Department to promote the practice and the individual attorneys. The practice has had tremendous success in recent years, bringing in new clients and strengthening our relationship with existing ones. This is primarily due to our outstanding reputation based on our work produce and successive wins in high-stakes complex arbitrations and international litigations.
In this regard, our view is that the best form of visibility is to do excellent work for our clients. Our work and track record speak for themselves.
As a result, our attorneys are regularly invited to speak at high-level international arbitration conferences around the world, teach at the most prestigious institutions, present before the UN, and write pieces in the most relevant legal publications. They are regularly contacted by legal outlets for commentary, and the cases they work on are widely reported on. Moreover, several of our partners also hold leadership positions in the most prestigious international law organizations.
Do you encourage clients to resort to multi-tiered dispute resolution clauses, so arbitration becomes a last recourse?
Diana Paraguacuto-Mahéo: I discovered mediation very early in my career and became a strong advocate of ADR with the A not standing for “Alternative” but for an “Appropriate” Dispute Resolution tool. My objective is to always strive to efficiently solve my clients’ disputes, and that is not always through arbitration. Users are in high demand for practitioners that have a more constructive and holistic approach to dispute resolution and I now very regularly act as mediator in extremely high-profile international disputes. The multi-tiered dispute resolution clause can force parties to envisage other modes of dispute resolution before resorting to arbitration. Albeit useful, these clauses are not always successful in saving time and cost because too few users and attorneys are trained and prepared to engage in ADR. The rapidly changing international legal framework, including the Singapore Convention, the quest for more sustainability, and the development of predictive justice, will inevitably foster the use of ADR in the years to come.
What trends do you witness or foresee in international arbitration?
Christina Hioureas: There is an increasing trend in the direction of summary dismissal of claims manifestly devoid of merit. This has been an ongoing discussion before the UNCITRAL Working Groups II (dispute settlement) and III (investor-State dispute resolution reform) and efforts have been made by arbitral institutions to include summary dismissal of unmeritorious claims in their respective revised rules and practice notes/commentaries. Allowing Parties to apply for early dismissal of unmeritorious claims is essential to protecting the integrity of the arbitral system, including to deter parties from filing claims intended to intimidate under-resourced counterparties, such as States and State-owned entities.
Diana Paraguacuto-Mahéo: Arbitration is becoming a forum for climate change-related disputes. As the global climate change concern continues to grow and environmental law and standards continue to evolve towards greater sustainability, States are increasingly being exposed to investment arbitration. One example of the impacts of environmental issues on arbitration is the recent events surrounding the Energy Charter Treaty. Although the ECT was on its way to being modernized, countries such as Spain, France, the Netherlands, Germany, Poland, and, more recently, the European Union decided to withdraw from it, bringing concerns as to its future. New draft model BITs are becoming a tool for fostering States increased sustainability efforts. A good example is the Netherlands draft model BIT which requires that States ensure “high levels of environment and labor protection” and “reaffirm their commitment” to international human rights and environmental treaties, including the Paris Agreement, and allows tribunals to take into account investors’ conduct where they have not complied with the UN Guiding Principles on Businesses and Human Rights and the OECD Guidelines for Multinational Enterprises. Investment tribunals are also engaging with climate change related issues such as in the Urbaser SA & Ors v. Argentina case where the Arbitral Tribunal held that it had jurisdiction over Argentina’s counterclaim relating to international human rights obligations.
Congratulations to the team once again! Jus Connect wishes them nothing but success.