Arbitration Team of the Month #31
Jus Connect is pleased to nominate Chaffetz Lindsey 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.
Chaffetz Lindsey has an impressive track record in arbitration. They have been involved in at least 28 international and domestic arbitration case(s) known by Jus Mundi (20 Commercial Arbitration, 7 Investor-State, and 1 Iran-US Claims) in a variety of economic sectors, including Construction, Energy – Oil & Gas, and Financial Services
James Hosking (Founding Partner) and Aníbal Martín Sabater (Partner) at Chaffetz Lindsey, along with Yasmine Lahlou (Partner) at Chaffetz Lindsey, discuss the firm’s culture & growth, as well as developments in international arbitration in the US and Latin America.
Congratulations on winning the ATOM award! Can you tell us about Chaffetz Lindsey and its work in international arbitration?
James Hosking: Thanks, delighted to receive this honor. On your question, Chaffetz Lindsey is the premier New York-based international disputes boutique. We were founded almost 15 years ago when the five founding partners left Clifford Chance’s US office to start something different. We provide top-tier counsel on complex international arbitrations around the world. While proud of our New York roots, we are in no way limited in geographic scope or subject matter, and regularly act in “bet the company” cases around the world.
In recent years, we have been particularly busy in disputes involving Latin America (Argentina, Brazil, Mexico, and Peru among others), the Middle East, Continental Europe, and the Asia-Pacific region. We have six partners with a full-time international arbitration practice (Yasmine Lahlou, Caline Mouawad, Gretta Walters, and David Lindsey, in addition to Aníbal and me), and we regularly have over a dozen associates and foreign associates helping in our cases.
Although these things change over time, for the last few years we have kept an almost even balance between investment and commercial arbitration cases. We are currently counsel in approximately 33 arbitration-related matters, involving over 20 jurisdictions, and valued at approximately $13 billion. Our international presence and the global nature of our practice, as well as the diversity of our core team, is truly unique for our size. We are particularly proud of our ability to attract top young talented associates from around the world. This allows us to conduct cases in English or Spanish, and to be able to work efficiently in cases where all or part of the evidence is in, amongst others, Arabic, Chinese, French, German, Italian or Portuguese.
In addition to our international arbitration work proper, our partners Andreas Frischknecht and Yasmine Lahlou lead one of the nation’s leading judgment and award enforcement practices. Along with Gretta Walters, they have written the go-to textbook on the enforcement of foreign arbitral awards and judgments in New York—and they are often in court putting it in practice. Chambers just recognized them as Band 1 in this category.
We also work closely with our colleagues whose practices are primarily litigation focused. We have a top-ranked insurance and reinsurance practice, and busy specialty practices in bankruptcy, financial disputes and sovereign-related litigation and arbitration.
Tell us about yourselves and how you came to work on arbitration cases.
James Hosking: Like a lot of people, I fell into international arbitration by chance. New Zealand had just enacted the UNCITRAL Model Law when I was a freshly-minted lawyer back home. I knew nothing about arbitration, but started working on cases under the new law, co-taught a class on it at my old law school, and ended up getting bitten by the international arbitration bug. I also benefited from several mentors along the way, especially my former boss Sir David Williams KC who was instrumental in encouraging me to study overseas in the US for a year – that was 23 years ago!
Aníbal Martín Sabater: My background is a bit different. Since law school in Madrid, I was intrigued by international disputes and hoping to work on them. I graduated in 1997 and was fortunate to be hired for what turned out to be the first full-time international disputes practice a large law firm set up in Spain—the one at Gómez-Acebo & Pombo.
How is being a boutique firm a differentiator in arbitration?
James Hosking: We built our business to serve the needs of sophisticated clients with complex cross-border disputes. We simply don’t have the conflicts and internal distractions that come from being a full-service firm. We are really good at what we do without having to pretend to be all things to all people. That gives us greater flexibility in hiring and a lower cost base that gives us more flexibility on pricing.
We also made some conscious decisions to practice differently than some of our big firm competitors. We are not a leverage-based firm; we provide real partner involvement throughout a case but supported by a small team of associates with manifest hands-on expertise. We frequently work with co-counsel outside the US or bring on specialized US expertise. Because we don’t have a network of offices we have to sustain, in consultation with the client, we can assemble a team of the best lawyers for the particular case. We very much value our co-counsel relationships, and we know they value working with a top-tier firm that isn’t going to try to “steal” the next corporate transaction because we don’t do that work. Having spent many years at defense-side banking-focused firms, we understand complex financial transactions but enjoy the flexibility of being conflict-free to be adverse to banks when necessary.
Can you mention a recent case and explain why it was of interest?
James Hosking: We’re really proud of our work on a lot of different commercial and investor-State cases. Our most recent case just had its evidentiary hearing last week and typifies our profile. It’s confidential so we can’t mention names, but it’s an ICC case that involves Mexican law, with a Mexico City seat, arbitrators of three different nationalities, and a Mexican project in the renewable energy sector. We teamed up with a Mexican law firm and together put on 13 witnesses and cross-examined 14 witnesses, in both English and Spanish. Our client appreciated our international arbitration specialty expertise, our advocacy skills, and our sector experience, while we were also respectful of working closely with our excellent Mexican colleagues.
You posted on your webpage regular legal updates on the pandemic. Can you tell us more about it?
Aníbal Martín Sabater: This was mostly the idea of Charles Scibetta, one of our founding partners and a specialist in insurance and reinsurance litigation. Since the outbreak of the pandemic, he encouraged the firm to develop a COVID-19 resource center—a webpage where we would provide live information about COVID-19-driven legal changes. The webpage proved to be useful. For instance, as early as late March 2020, we were getting calls from clients who wanted to know whether the implementation of social distancing measures on site—and the delays this entailed—could give rise to a mitigation of the schedule in a potential construction arbitration case.
Also, our partners Yasmine Lahlou, Peter Chaffetz, and Andrew Poplinger, as well as several of our associates, were in the middle of a large in-person hearing in New York when the city went into shutdown. The tribunal and the parties immediately agreed that the rest of the hearing would be conducted remotely as soon as everyone made it safely back home. This may have been one the first large hearings done remotely—at least in part—due to the pandemic. Yasmine, Peter, and Andrew wrote an article on the subject and received several media inquiries to discuss their experience.
Also, as virtual hearings became prevalent during the pandemic, James and Yasmine were two of the three co-editors in an ICAA study on whether laws around the world provide a right to in-person hearings. This also became a useful tool for users. The report is available here.
All these efforts helped put us at the front of COVID-related arbitration work.
Your team regularly publishes articles in a series called “Arbitration in the Courts” where you comment on recent arbitral-related developments in US courts. In your opinion, what makes the US such a prominent jurisdiction for arbitral enforcement and challenges?
We are letting our partner Yasmine Lahlou, one of the co-editors of the publication, take on this one. These are her words:
Yasmine Lahlou: Thank you for mentioning Arbitration in the Courts, a publication that the firm takes great pride in. The United States is such a prominent jurisdiction thanks to practical and legal reasons. Since the Federal Arbitration Act was adopted in 1925 and the New York Convention ratified in 1970, courts in the U.S., including the Supreme Court, have developed one of the most sophisticated, prolific and pro-arbitration bodies of arbitration law in the world.
This is due in part to the fact that, with respect to cross-border disputes, the United States is not a party to any international convention on the recognition of court judgments that is in force as of today. As a result, international arbitration has an outsize role in resolution of cross-border disputes in the largest economy in the world. Moreover, New York remains the financial capital of the world, which makes it one of the most natural jurisdictions to enforce foreign awards. New York courts are all the more attractive that once you have reduced an award to a judgment, a creditor has access to a whole panoply of enforcement and discovery tools, to locate assets not only in the United States but also abroad. Finally, the key arbitration jurisdictions in the United States benefit from a bar and a bench of the highest caliber.
In your opinion, over the last decade, what has evolved in the arbitration world in Latin America -a region your practice has extensive experience in? What changes do you foresee in the region in the next few years?
Aníbal Martín Sabater: As mentioned, Latin America is a big part of what we do. The changes the region has gone through are too many to enumerate, but they basically come down to the tremendous growth of the practice there. For decades now, through political changes and FDI flows, Latin American legal culture has been rapidly evolving, including becoming more accepting of some common law practices and solutions.
Latin America also has a strong tradition of integration. The Organization American States, for instance, already existed before the European Community, now Union, was established.
Nowadays, as a vibrant region long exposed to the globalization in legal education and in the economy, Latin America has a strong cadre of international arbitration specialists at ease in the civil law, the common law, the lex mercatoria, and the public international law traditions. The versatility of practitioners is such that Latin America has strong local bars with prominent practitioners who have studied and worked abroad. The region has also become an “exporter” of lawyers and arbitrators. Think, for instance, of the relatively high number of sensitive investment arbitration cases that have a Latin American chair, even if they are unrelated to the region.
As for predictions, we will be bold and make three.
- First, the use of Spanish in arbitration will continue to increase, perhaps to the point of displacing English as the number one language for cases stemming from projects in the region.
- Second, while the global economy is cooling off, Latin America seems on the verge of an unprecedented economic boom. This will probably lead to more investment—and a further growth in the use of arbitration.
- Third, despite what we just said, political instability continues to be a concern in the region—and we know from experience how unexpected changes in legal frameworks tend to also lead to more disputes.
As you can tell from all this, our expectation is to continue to remain busy with work from the region.
Chaffetz Lindsey has had a growing arbitration caseload over the years and is regularly praised in the field. How does a boutique arbitration firm like Chaffetz Lindsey promote itself?
Aníbal Martín Sabater: The best promotion is doing a good job for clients in their cases. Also, of course, we try to cultivate personal relations as much as possible. We are a New York-based boutique, but not ashamed to travel the world to meet clients and friends who may need our services. We also are heavily involved in thought leadership, whether taking speaker roles at conferences or producing high quality publications, such as our newsletter Arbitration in the Courts. Yasmine Lahlou, Andy Frischknecht, and Gretta Walters have also authored the go-to handbook on the enforcement of foreign judgments and awards in New York. James has co-authored the main commentary on the ICDR Rules. We also encourage our more junior lawyers to take a leading role in such initiatives.
We are deeply involved in the arbitration community and the leading arbitral institutions. For example, James is a member of the ICAA governing board and the co-chair of the New York International Arbitration Center’s Program Committee (a position Aníbal also previously held); Caline is a vice president of the ICC Commission and a NYIAC executive committee member; Gretta is co-chairing this year the New York International Arbitration Week; Yasmine is a vice president of the ICC Bulletin editorial board; I lead one of the most relevant commissions at the Union International des Avocats … Our associates currently have leadership roles on several young practitioner organizations like those of the ICDR, ASIL and ITA, as well as positions with the IBA. One of our associates, May Khoury, recently co-launched the ArabArb group, while another, Lidia Rezende, leads a networking group for Brazilian-trained women lawyers in the US. We believe this type of involvement is good for our clients, assists our colleagues in profile-building, and helps create a more vibrant arbitration community.
What is your vision for the arbitration field in 2024? Any trends that we can expect in the next few years, in the US especially?
Aníbal Martín Sabater: At a more granular level, we are keeping an eye on potential claims against Mexico (under NAFTA 2.0 or otherwise) as the energy reform unrolls, the status of the ECT and the potential negotiation of a replacement treaty, and the award enforcement cases currently brought against Spain in Washington DC. In terms of industry developments, the renewable energy revolution is obviously producing a lot of work, as are issues around new technologies like carbon capture. The increasing use of AI in arbitration is also a topic worth following.
Actually, I just did a panel on the subject in Stockholm with Jus Mundi’s Head of Product, Monica Crespo, so we know you are also on top of this important issue. And the Silicon Valley Mediation and Arbitration Center has just circulated for commentary a draft set of guidelines on the use AI. The guidelines are expected to be approved and be a hot topic in 2024. Also, UNCITRAL Working Group III seems close to finishing its ISDS provisions on procedural and cost-cutting issues.
James Hosking: If you’re talking general trends for the practice, much of what happens will continue to depend on the economy, the war in Ukraine, and the general international trade sanctions regime. It is really hard to make predictions there. Meanwhile, in terms of legal industry developments, the trend towards Big Law mergers appears to be continuing – and it’s driven by transactional practices, not disputes. This creates more conflict work for us while also creating pricing pressure for our competitors. We’ve watched clients gravitate towards our specialized boutique model in the almost 15 years since our founding. This just strengthens our view that we made the right choice in setting up the firm!
Key clients of the firm’s arbitration practice
- APM Terminals Callao S.A
- Ashmore Energy International
- CGT Electosul
- Clorox Spain S.L.
- Turkey’s Çukurova Holding
- Czech Republic
- Eletrobras CGT Eletrosul
- Enauta S.A. (formerly Queiroz Galvão Exploração e Produção)
- Enel S.p.A
- Enel Green Power
- Eskenazi Family
- Grañá y Montero
- Hydria Participações e Investimentos S.A.
- IESA Oleo & Gas, S.A
- QGI Oil & Gas, S.A.
- Reti Televisive Italiane
- South Korea’s Samwhan
- SPI Energy
- Stoneway Capital
- Synohydro Costa Rica, Omega Construcciones, Desarrollos y Construcciones Urbanas and CAABSA Infraestructura
- The AES Corporation
- The Miss Universe Organization
- Vale S.A.
2022-2023 has been particularly busy with high value merits hearings for Chaffetz Lindsey. The firm’s recent highlights include:
- The firm continued with the representation of Clorox in its eight-year arbitration against Venezuela and of Nordex in a swath of high value cases involving windfarms in North America.
- Representing The AES Corporation in an ICSID arbitration against Argentina seeking damages for breaches of the US- Argentina BIT—one of the largest cases currently at ICSID.
- Representing a Mexican contractor and O&M operator and their European parent in an ICC arbitration seated in Mexico City against the Canadian majority owners of three solar facilities in Mexico.
- Representing a Mexican subsidiary of a global energy company in an arbitration against a Spanish construction company arising from a Balance of Plant Agreement relating to the development of a windfarm in Mexico. We are representing a European company in a dispute against one of the world’s biggest brands in the food and beverage industry, with the case being decided in an ICDR arbitration related to a novel beverage with untested specifications.
The enforcement practice also stayed very busy and had some resounding successes, including:
- Representing Nigeria’s state oil company in multiple enforcement actions with over $5 billion in dispute across four matters. To this date, Chaffetz Lindsey has succeeded at nearly every step – with the district court’s decision being one of the most important decisions in 2019 and the Second Circuit rejecting almost all of our opponent’s appeal last year. The parties reached an agreement to resolve these disputes and, as of June 2023, the enforcement actions have been dismissed.
- Chaffetz Lindsey has been retained by the Government of Malaysia in the most significant award enforcement case worldwide these days. The firm has been instructed to advise the Government on potential proceedings in the United States in connection with a purported February 2022 arbitral award in the staggering principal amount of nearly US$15 billion, plus interest, resulting from an ad hoc arbitration initiated against Malaysia by eight Filipino citizens purporting to be the heirs of the former Sultan of Sulu.
- The firm was instructed on an action to enforce an award arising out of an investment arbitration between Mohamed Abdel Raouf Bahgat and the Arab Republic of Egypt (the “Republic”). This case, filed in the District Court for the District of Columbia, was the latest in a series of litigation matters involving this dispute, which included court cases in the Netherlands, France and Spain. This scenario required coordination between the law firms in these various locations and the adoption of a broader, inter-jurisdictional approach to the dispute. When Chaffetz Lindsey was retained, the Republic had been declared in default and a motion for a default judgment was pending. Chaffetz Lindsey was able to quickly brief and ultimately defeat the motion. Following that, we filed a motion to stay or dismiss the case pending a decision to set aside the arbitral award at the seat. The parties settled shortly thereafter.
Congratulations to the team once again! Jus Connect wishes them nothing but success.
ABOUT THE INTERVIEWEES
James Hosking is a Founding Partner and International Arbitration Practice Leader at Chaffetz Lindsey. He has over 25 years of dispute resolution experience, primarily in international commercial and investment treaty arbitration. James has been counsel in over 100 arbitrations, with clients and proceedings all over the world and has led our team in some of the firm’s biggest wins. James appears in US court litigation concerning international arbitration, including recently filing an amicus brief in the U.S. Supreme Court addressing the interplay between the New York Convention and the RICO Act. He earned an LL.M. from Harvard Law School in 2000 and attended the University of Auckland from 1990-1994, receiving B.A. and LL.B. (with honors) degrees. He is admitted to practice in New York and previously practiced in New Zealand. Prior to Chaffetz Lindsey, James co-led Clifford Chance’s Americas International Arbitration team.
Aníbal Sabater is a Partner and International Arbitration Practice Leader at Chaffetz Lindsey.Aníbal has over 25 years of experience in international commercial and investment arbitration under all major rules. He is a Fellow of the Chartered Institute of Arbitrators, a member of the Commission tasked with disposing of arbitrator challenges at the Madrid International Arbitration Center, and the President of the International Association of Lawyers’ Commission on “The Future of the Lawyer”. Aníbal is licensed in several US jurisdictions, England and Wales (solicitor), and his native Spain, and joined Chaffetz Lindsey in January 2015 and was previously a partner at Norton Rose Fulbright, having spent 11 years with the firm in its Houston and New York offices. Prior to that, Aníbal practiced for six years at Gómez-Acebo & Pombo in Madrid.