Our experience in these types of arbitrations ensures that we can advise a client on all aspects of launching proceedings against a State or equally defending a State against proceedings. Coupled with our international team of lawyers, we often have cultural and jurisdictional expertise that is second to none when dealing with international legal matters.
We represent ConocoPhillips in its ICSID arbitration against Venezuela. In March 2019, after defeating defences on jurisdiction and liability, seven arbitrator challenges, and three motions for reconsideration, we obtained an award of approximately $8.5 billion—the largest award in ICSID history. The dispute arises out of Venezuela’s expropriation of three of ConocoPhillips assets and raises issues of treaty interpretation, the interface between private and international law, and the quantification of damages for the expropriation of assets in a volatile region. Two competing Venezuelan regimes have sought annulment of the award and that proceeding is ongoing.
We represent Chevron in a landmark case concerning Ecuador’s breaches of international law in relation to a fraudulent $9.5 billion judgment issued by the Ecuadorian courts against our client. Most recently, we helped secure a monumental award in the merits phase, with the tribunal finding that Ecuador violated its obligations under the US-Ecuador BIT and committed a denial of justice against Chevron. In so holding, the tribunal deemed the Ecuadorian judgment a product of unprecedented acts of fraud, corruption, and bribery. Among other relief, the tribunal ordered Ecuador to render the initial court judgment unenforceable and to make full reparation for its delicts. The proceedings are currently in the damages phase.
We act for the Kingdom of Bahrain in the first investment treaty case brought against it. The claim, for over €300 million in damages, arises out of regulatory actions taken by the Central Bank of Bahrain in response to Future Bank’s sustained and significant non-compliance with Bahraini laws, including anti-money laundering laws and international sanctions. The case raises fundamental questions of international law regarding the consequences of an investor’s misconduct and the scope of the “unclean hands” doctrine in international law. It similarly raises fundamental questions regarding the scope of a central bank’s right to regulate and respond to systemic risks.
World Duty Free brought a $500 million claim against the Republic of Kenya for an alleged expropriation of a contract to operate duty free concessions at Kenya’s two international airports. Following the emergence of evidence that the contract had been procured through the payment of a cash bribe to former President of Kenya, Daniel Arap Moi, Kenya filed an application unprecedented in ICSID arbitration to have the claim dismissed in limine litis because it arose under a contract that was illegal and unenforceable as a matter of law and public policy. The tribunal agreed to hear ground-breaking legal argument on the effect of a cash bribe to a then-sitting Head of State and, in an award that stands as a landmark judgment on the effects of corruption on international claims, dismissed all claims against our client.
We represented Occidental in its multibillion-dollar dispute against Ecuador arising out of Ecuador’s expropriation of Occidental’s interests in Block 15 in the Ecuadorian Amazon region. The ICSID tribunal accepted our international law argument of proportionality and in a milestone decision unanimously found that by imposing a disproportionate sanction, Ecuador unlawfully expropriated its interest. The tribunal also refused to reduce Occidental’s quantum on account of the windfall profit tax law that Ecuador had enacted shortly before the expropriation. Ecuador sought to annul the final award, but the annulment committee appointed by ICSID upheld the tribunal’s findings, reducing quantum only on account of the 40% economic interest held by a third-party farmee.
Mytilineos Holdings, a €2 billion-turnover energy and engineering group, originally brought a claim against the Republic of Serbia in 2004 alleging that debts owed by RTB Bor, Serbia’s “socially-owned” company, constituted an investment under the Greece-Yugoslavia BIT. In this first arbitration, led by a Three Crowns partner at their former firm, the tribunal agreed RTB’s debts constituted an investment (dismissing Serbia’s jurisdictional objection), but in 2009, held that Serbia’s measures had not yet ripened into a breach of the BIT. Three Crowns lawyers commenced a second arbitration in 2013 as a result of further measures taken by Serbia and successfully argued that Serbia enforced a moratorium preventing creditors from pursuing claims, which affected Mytilineos’ rights. The tribunal further agreed that the successive amendments to Serbia’s law on privatisation resulted in a lasting removal of the creditors’ rights, and were therefore expropriatory. It ruled, in effect, that Serbia would never have allowed RTB to be bankrupted by a creditor, and therefore Serbia – as the de facto owner of RTB – had to bear the cost of keeping the company as a going concern, including paying creditors. The tribunal awarded Mytilineos approximately $40 million, an amount consistent with both sides’ expectations, which was promptly satisfied.
Representing Elliott in its claims against the Republic of Korea for breaches of the United States-Korea Free Trade Agreement in relation to the 2015 merger of Samsung C&T and Cheil Industries, two entities of the Samsung group. The parties’ dispute also relates to the bribery and corruption scandal involving Samsung heir Jae-yong Lee and former Korean President Geun-hye Park, which ultimately led to President Park’s impeachment and removal from office. The case is currently ongoing and has the potential to become one of the leading cases on State corruption in the investment context.
Representing both States and investors in arbitrations commenced under the Agreement on Promotion, Protection and Guarantee of Investments amongst the Member States of the Organisation of the Islamic Conference (the OIC Agreement). Ratified by 29 States across the Islamic world, many of whom otherwise lack international investment treaty coverage, it provides investors with important international law protections, including recourse to ad hoc international arbitration. Accessing such recourse is not straightforward, however, and requires experienced and expert counsel to ensure that the client’s interests are protected. We know how to engage with the OIC Secretariat in such cases, as well as having unique insight into how the Permanent Court of Arbitration responds to requests for designating appointing authorities in cases brought under the OIC Agreement.
Representing States in both arbitration and court proceedings commenced under the Unified Agreement for the Investment of Arab Capital in the Arab States (the Unified Agreement). Ratified by 20 of the 22 members of the Arab League, it represents an important source of international law protections to Arab investors. We have unparalleled experience representing clients before the Arab Investment Court in Cairo, which is the default jurisdiction under the Unified Agreement, as well as in arbitration proceedings commenced thereunder.
We represent Naturgy, one of Spain’s largest utility providers, in its ICSID claims against Colombia for breaches arising under the Columbia-Spain BIT. The matter, with claims exceeding $1 billion, relates to actions that deprived Naturgy of its shareholder rights and investment in Electricaribe, a local electricity provider.
Three Crowns acts as counsel for ExxonMobil in its investor-State arbitration against Venezuela, in which our client is seeking to recover damages for Venezuela’s expropriation of its heavy oil projects in 2007. In 2014, we helped secure an award of approximately $1.6 billion, at the time one of the largest investor-State arbitration awards ever rendered. Following a partial annulment of the Award in 2017, we are now representing our client in one of the most significant resubmission proceedings in the history of ICSID.