Investor-State arbitration

We secured one of the largest known ICSID awards in history, for ConocoPhillips against Venezuela.  

After rejecting defences on jurisdiction and liability, seven arbitrator challenges, and three motions for reconsideration, the tribunal awarded ConocoPhillips $8.5 billion. 

The dispute arose out of Venezuela’s expropriation of three ConocoPhillips assets. It raised issues of treaty interpretation, the interface between private and international law, and quantification of damages for expropriation of assets in a volatile region. Two competing Venezuelan regimes have sought unsuccessfully to annul the award.

The arbitration ran parallel to an ICC arbitration against PDVSA, Venezuela’s State-owned energy company, in which we secured a $2 billion award on behalf of ConocoPhillips. 

We obtained a significant award for Chevron in an arbitration under the US-Ecuador bilaterial investment treaty. The dispute concerned Ecuador’s breaches of international law in relation to a fraudulent $9.5 billion Ecuadorian court judgment against our client. 

The tribunal found that Ecuador had violated its obligations under the treaty and committed a denial of justice against Chevron. It 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 breaches of international law. 

We obtained a significant victory for Elliott Management in its UNCITRAL arbitration against the Republic of Korea. Elliott successfully argued that Korea had breached the United States-Korea Free Trade Agreement in relation to the 2015 merger of Samsung C&T and Cheil Industries, two members of the Samsung Group.  The tribunal held that the Republic of Korea is required to pay damages totalling more than $100 million, including costs and interest.

The parties’ dispute related to a bribery and corruption scandal, involving Samsung heir Jae-yong Lee and former Korean President Geun-hye Park, that led to President Park’s impeachment and removal from office. The tribunal agreed that the government’s illegal intervention meant the merger had been approved on predatory terms. Had it not been for this, Elliott would have won the vote and other investors and Korean pension holders would have been saved billions of dollars in losses.

The tribunal found that Korea failed to afford to Elliott the minimum standard of treatment under the treaty, and that the actions of its National Pension Service (NPS) were attributable to the Republic of Korea notwithstanding that NPS had taken those actions in the context of exercising its shareholder rights.

We represented Occidental Petroleum in its claim against Ecuador for expropriation of Occidental’s interests in Block 15 of the Ecuadorian Amazon region. 

We secured a billion-dollar award in the arbitration, which was brought under the US-Ecuador bilateral investment treaty. The tribunal accepted an international law argument of proportionality and – in a milestone decision – held unanimously that by imposing a disproportionate sanction, Ecuador had unlawfully expropriated Occidental’s interests. The tribunal also refused to reduce Occidental’s damages 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 ICSID annulment committee upheld the tribunal’s findings, reducing quantum only on account of the 40% economic interest held by a third-party farmee.

We obtained a $40 million UNCITRAL award for Mytilineos Holdings (now Metlen Energy & Metals) against the Republic of Serbia under the Greece-Yugoslavia bilateral investment treaty.   

In a prior arbitration, led by a Three Crowns partner at his former firm, Mytilineos claimed that debts owed to it by RTB Bor, Serbia’s “socially-owned” company, constituted an investment under the treaty. That tribunal held that Serbia’s measures had not yet ripened into a breach of the treaty. 

Following further measures by Serbia, Mytilineos successfully argued in a second arbitration that Serbia had enforced a moratorium preventing creditors from pursuing claims, which had affected Mytilineos’ rights. 

The tribunal agreed that successive amendments to Serbia’s law on privatisation resulted in a lasting removal of the creditors’ rights and amounted to expropriation.  It ruled 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.  

We secured a significant UNCITRAL award for Lebanese and Jordanian nationals against Libya, in an arbitration under the OIC (Organisation of Islamic Cooperation) Investment Agreement.   

The dispute arose from the nationalisation of the investors’ company and subsequent actions, including decisions by State courts and administrative bodies that denied the investors’ rights to compensation. The claimants were heirs to the shareholder investors. 

The tribunal found that Libya had breached the investors’ rights to fair and equitable treatment. This is one of the first successful awards under the OIC Agreement, and a rare example of a tribunal addressing inherited claims.