Introduction<\/strong><\/p>\n As we all know, awards are final and binding on the parties to the dispute. Like litigation or other dispute resolution mechanism, there are winners and losers in arbitration. When the award-debtors are unsatisfied with the result, the post-award remedies provided in the relevant treaties, especially in the ICSID Convention, or in arbitration laws of the seat are the last resort to fairness and justice. For the award-creditors, the enforceability of the award is the rasion d\u2019\u00eatre<\/em> of the arbitration process. It is in this final procedure that the party’s rights and expectations can be realized and materialized. These procedures and practical issues are essential for foreign investors to consider when planning to commence investment arbitrations. Gibson Dunn<\/a> is prominent for its Energy Charter Treaty<\/a> work and its enviable prominence in litigation involving arbitration issues, including enforcement proceedings.<\/p>\n This month, Jus Mundi is pleased to bring light to Gibson Dunn’s International Arbitration Practice Group<\/a>, along with an interview with its practice leaders Cyrus Benson<\/a> and Penny Madden QC<\/a>.<\/p>\n Recent victory cases analysis:<\/strong> Antin v. Spain<\/em><\/strong><\/a> and <\/strong>Yukos Capital v. Russia<\/em><\/strong><\/a><\/p>\n Antin v. Spain<\/em><\/strong><\/a> (Infrastructure Services Luxembourg S.\u00e0.r.l. and Energia Termosolar B.V. v. Kingdom of Spain)<\/em><\/strong><\/p>\n On July 30, 2021, an ICSID annulment committee upheld<\/a> a \u20ac101 million ICSID award in favor of solar investors, formerly known as Antin.<\/p>\n Background<\/strong><\/p>\n Committee<\/strong><\/p>\n Committee’s decision<\/strong><\/p>\n Legal rationale Yukos Capital v. Russia<\/em><\/strong><\/a> (Yukos Capital SARL v. The Russian Federation)<\/em><\/strong><\/p>\n In an award<\/a> dated July 23, 2021, a Geneva-seated tribunal constituted under the UNCITRAL Arbitration Rules 1976<\/a> found Russia liable and ordered it to pay approximately US$5 billion in damages (including interest), plus legal fees and costs.<\/p>\n Facts<\/strong><\/p>\n Tribunal constitution<\/strong><\/p>\n Tribunal’s decision<\/strong><\/p>\n The tribunal found Russia illegally expropriated<\/a> Yukos Capital’s loans to Yukos Oil and denied it justice<\/a> in the Russian courts in what represented the very opposite of due process of law.<\/p>\n Legal rationale<\/strong><\/p>\n The award is currently subject to a confidentiality order, so the reasoning behind the decision is unfortunately not available.<\/p>\n<\/p>\n Interview with<\/strong> Cyrus Benson and Penny Madden QC<\/strong><\/p>\n We are honoured to have been retained for this enforcement assignment. Our enforcement team is renowned for developing innovative and truly global collection strategies that bring adversaries to the negotiating table. We would expect this case to showcase all of those skills.<\/p>\n The Antin<\/em> annulment case raised a relatively large number of unrelated annulment grounds, making it an unusually complex annulment proceeding requiring substantial written submissions. This complexity was exacerbated by the fact that Spain submitted two lengthy expert reports on EU law. In fact, it was the very first annulment case to address an underlying ICSID tribunal’s findings on the intra-EU application of the ECT. The team did a great job rising to these challenges and we are very pleased with the Committee’s Decision rejecting all grounds for annulment and awarding our client full recovery of its costs.<\/p>\n We regret that we currently are not in a position to say much about the tribunal’s reasoning given that the award has not yet been made public. Essentially, on the merits the tribunal agreed that Yukos Capital and its investments were not spared in the Russian Federation’s onslaught against Yukos Oil Company, a large-scale and brutal expropriation that has been the subject of numerous arbitrations and legal proceedings around the world. This included, but was not limited to, the treatment of Yukos Capital when it submitted its claims as a creditor in the Yukos Oil “bankruptcy”, treatment the tribunal found to have represented a denial of justice.<\/p>\n Clients really value the comprehensive nature of our practice. We are a go-to firm for the complete international arbitration package \u2013 from advice at the time the transaction and arbitration provisions are being structured, to the collection of cash after a favourable award (where we work closely with the firm’s pre-eminent enforcement practice). Our practice boasts a combination of extraordinary advocacy, strategic analysis and excellent lawyers at every level \u2014each characteristics of the firm as a whole. Our high-profile partners are backed up by a strong, continually expanding associate base with a broad range of expertise and experience. Our dedicated teams work in close collaboration with our clients to ensure we achieve the best results and\u2014again in line with the firm’s overall philosophy\u2014partner to associate leverage is low relative to our competitors, which means our partners are very “hands-on” and teams are smaller and highly integrated. We also work closely with our experienced litigators to meet our client’s needs in their most complex disputes (critically, most complex disputes also involve parallel or related litigation, which we are able to handle seamlessly).<\/p>\n In my now 30 years of practice, I’ve always seen the best leaders do so by example and I’ve tried to emulate that. The example then needs to reflect core values\u2014hopefully in my case, professionalism, credibility, creative thinking, clear communication, an ability to listen and learn, and team play. Leadership also means knowing and understanding the members of your team, and being able to help them play to their strengths and feel supported in striving to improve and fulfil their own goals and potential<\/p>\n A really pivotal experience in my path to Queen’s Counsel was representing Orascom Telecom against Algeria in its multi-billion dollar claim for expropriation and breach of the FET standard. It was a claim that had it all: creeping expropriation, criminal and civil proceedings in Algeria, complex tax claims, knotty legal issues, and a very real human story involving livelihoods and freedom. The team was incredible – putting heart and soul (and countless hours) into the case, and I had the privilege of working alongside the masterful Toby Landau QC and opposite the formidable, much-missed Emmanuel Gaillard – it was an inspirational experience that taught me the importance of teamwork, story-telling and knowing your case inside out.<\/p>\n<\/p>\n Presentation of the firm<\/strong><\/p>\n Gibson Dunn’s International Arbitration Practice Group<\/a> advises multinational corporations in commercial and investment treaty arbitration proceedings administered by and\/or under all major arbitral institutions and rules. In addition, the Group regularly assists clients in enforcement proceedings before national courts under a variety of national arbitration laws and the New York Convention. It has extensive experience in the energy, telecommunications, mining, construction, pharmaceutical and banking sectors, among others.<\/p>\n The practice is co-led by Cyrus Benson<\/a> and Penny Madden QC<\/a>.<\/p>\n Key clients <\/strong><\/p>\n AES Corporation, Agility Public Warehousing Company, Anglo American, Bechtel Corporation, Centerbridge Partners Europe LLP, Corral Morocco Holdings, Crescent Petroleum, Crystallex, Dana Gas, Eiser Infrastructure Limited \/ Energ\u00eda Solar Luxembourg, Exelon Corporation, General Electric, Hyatt Corp., Hydro Energy 1 S.\u00e0 r.l. \/ Hydroxana Sweden AB, InfraCapital, Infrastructure Services Luxembourg S.\u00e0.r.l. \/ Energia Termosolar B.V., S.\u00e0 r.l., Kimberly-Clark, Liberty Mutual, MGM Resorts, RREEF Infrastructure, RWE, Veon, Vivendi, Yukos Capital.<\/p>\n Track-record and recent instructions <\/strong>(non-confidential only)<\/p>\n Table of public international law cases involving Gibson Dunn<\/strong><\/p>\n Gibson Dunn<\/a> is currently acting as counsel in multiple investor-State and commercial arbitration cases, notably representing investors in ICSID proceedings.<\/p>\n Gibson Dunn 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.<\/p>\n Please click here<\/a> to see all types of cases (investor-State, inter-State, and commercial arbitration) involving Gibson Dunn available on Jus Mundi.<\/p>\n [table id=27 \/]<\/p>\n (Note*: This table is not exhaustive.)<\/p>\n<\/p>\n Spotlight \u2013 the <\/strong>Antin v. Spain<\/em><\/strong><\/a> and<\/strong> Yukos Capital v. Russia<\/em><\/strong><\/a> team<\/strong><\/p>\n Cy Benson is a US and English qualified partner in the London office and serves as Co-Chair of the firm’s International Arbitration Practice Group. He represents clients from a wide variety of sectors before commercial and investment treaty tribunals with experience in telecoms, oil & gas, mining, and infrastructure disputes.<\/p>\n Penny Madden is an English qualified Queen’s Counsel and serves as Co-Partner-in-Charge of the London office. She is Co-Chair of the International Arbitration Practice Group and a member of the firm’s Transnational Litigation Practice Group. Her practice focuses on international arbitration with expertise in shareholder, telecommunications, SPA, energy, international trade, and insurance disputes, and she regularly sits as an arbitrator.<\/p>\n Jeff Sullivan is a US and English qualified Queen’s Counsel and partner in the London office, where he is a member of the firm’s International Arbitration Group. He represents clients in both commercial and investment treaty arbitrations. He also regularly sits as an arbitrator. His practice focuses on disputes arising in the energy, extractive industries, and infrastructure sectors.<\/p>\n Lindsey D. Schmidt is a partner in the New York office and a member of the firm’s Litigation, International Arbitration and Judgment and Arbitral Award Enforcement Practice Groups. Her practice focuses on international commercial arbitration and investor-state arbitrations. She has experience in disputes relating to mining, steel, telecommunications, insurance, aviation, and financial services.<\/p>\n Rahim Moloo is a partner in the New York office. He advises clients on structuring foreign investments and matters of international law and sits as arbitrator in complex international cases. His experience spans several industries, including energy, mining, telecommunications, financial services, infrastructure, construction, and consumer products.<\/p>\n Ceyda Knoebel is an English-Turkish dual-qualified solicitor, a senior associate in the London office, and a member of the firm’s Dispute Resolution and International Arbitration Groups. She has experience in commercial and investment treaty arbitration proceedings as well as enforcement of arbitral awards, specializing in energy, oil and gas, financial services, banking, and construction.<\/p>\n Piers Plumptre is an English qualified barrister and associate working in the London office and a member of the Dispute Resolution and International Arbitration Groups. His practice includes international arbitration and enforcement, complex commercial litigation, financial services disputes, international fraud, and white-collar crime.<\/p>\n Sophy Helgesen is an English-qualified solicitor in the London office and a member of the firm’s Dispute Resolution and International Arbitration Groups. She specializes in investment treaty cases and complex commercial arbitrations under ICSID, UNCITRAL, and LCIA rules across various sectors, including energy, mining, construction, media, and associated English High Court applications.<\/p>\n Ankita Ritwik is an associate in the Washington, DC office. She is a member of the Litigation and International Arbitration Practice Groups. Her recent experience includes representing multinational companies with investments in Europe, Latin America, Asia, and Africa, in the energy, manufacturing, and mining industries in international arbitration and enforcement proceedings.<\/p>\n Stephanie Collins is an English law qualified solicitor and associate in the London office and a member of the firm’s International Arbitration Group. She represents clients in both commercial and investment treaty arbitrations. Her practice focuses on disputes in energy (renewables, oil and gas), extractive industries, infrastructure, and financial services sectors.<\/p>\n\n
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<\/strong>Spain has raised three grounds for annulment: 1. manifest excess of powers by the tribunal<\/a>; 2. serious departure from a fundamental rule of procedure<\/a>; 3. failure to state reasons in the award<\/a>.<\/p>\n\n
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