Correction, 9/11/2013: An earlier version of this article incorrectly referred to a "second-place tie" between Shearman & Sterling and Curtis Mallet-Prevost, Colt & Mosle, for most entries in the 2013 Arbitration Scorecard. Due to a data processing error, we failed to give Shearman credit for one entry in the survey. In our corrected rankings, Shearman is in second place with 35 arbitrations and Curtis Mallet-Prevost is in third with 34 arbitrations. We regret the error.
Ten years ago—ignoring the prominent "PRIVATE, KEEP OUT" sign—we cracked open the door that led to the hidden world of arbitration. In the summer 2003 issue of Focus Europe, we gave unsanitized accounts of 40 large international arbitrations. At an International Bar Association panel the next year, the secretary-general of the ICC Court of International Arbitration criticized our endeavor to publicly track this private-sector, traditionally secret system of justice. But with every biennial survey, the door kept opening wider.
The 10th-anniversary Arbitration Scorecard spotlights 165 treaty arbitrations and 109 contract arbitrations that were active in 2011–12. (To learn about our methodology, click here.) Captured in the survey are a record 121 billion-dollar disputes. What makes these cases interesting, though, goes beyond dollars and cents: They also capture the political and economic crosscurrents of our time. Investors have challenged bank regulators' response to the global financial crisis (Ping An v. Belgium), Greece's debt restructuring (Cyprus Popular Bank v. Greece), Germany's ban on nuclear power after the Fukushima meltdown (Vattenfall v. Germany), Zimbabwe's treatment of white farmers (Border Timbers v. Zimbabwe), the division of spoils after the breakup of Sudan (Sudapet v. South Sudan), and Egypt's economic relations with Israel after the Arab Spring (Maiman v. Egypt). Random projects in dispute range from Chinese casinos in Laos to Dubailand's Falcon City of Wonders, a falcon-shaped development featuring life-size replicas of the Taj Mahal, the Leaning Tower of Pisa, and the Hanging Gardens of Babylon.
Leading our list, as it has since 2005, is the treaty arbitration filed against Russia by the majority shareholders of the defunct Yukos Oil Company, with a current damages claim of $114 billion before interest. Yukos is followed on the treaty claims list by French developer Renée Rose de Levy's claim over beachfront property on the outskirts of Lima, valued rather optimistically at $50 billion. Claims by ConocoPhillips and Exxon Mobil Corporation for the expropriation of vast Venezuelan oil fields rank number three and five on the list. Between them, at number four, is Chevron Corporation's far-flung fight with Ecuador over a $19 billion environmental award levied against the oil company by an Ecuadorian court. Amusingly, Chevron's counsel expressed outrage to the Arbitration Scorecard in 2005 that the dispute was valued as high as $1 billion, after an earlier, prejudgment iteration of the case appeared on our charts.
Ten years ago, we featured an oil contract arbitration flowing from America's first Iraq war, and predicted that "arbitration lawyers will be among those who mop up after this year's Persian Gulf War." Sure enough, the 2013 contract arbitration list is led by a $53 billion dispute between UAE's Crescent Petroleum Company Ltd. and Germany's RWE A.G. over RWE's commitment to build a gas pipeline network in Iraqi Kurdistan.
Billionaires who grew up in the Soviet Union were behind the next three entries on the contract arbitration list. In SUAL v. EN+, the winner of the "Russian Aluminum Wars" covered in our first surveys, Oleg Deripaska, vied with Viktor Vekselberg for control of what is now the world's largest aluminum company, UC RUSAL. In Telenor v. Altimo , Mikhail Fridman tangled with Western telecom investors in forums worldwide for control of OAO Vimpelcom, as he has for Turkcell A.S. and OAO Megafon. (To simplify: Both the RUSAL and Vimpelcom cases were ended by business deals cut with third-party billionaires). Finally, in Alfa v. BP, the arbitration-savvy Fridman and Vekselberg joined forces to stymie BP plc's $16 billion share swap with OAO Rosneft Oil Company.
Not every big claim turns into a big award, but the oligarchs' win against BP was the largest award—as opposed to claim—in our survey period. As in our last survey, the number of jackpot arbitration awards corresponds eerily with the number of jackpot U.S. jury verdicts. Arbitration Scorecard counts 11 awards valued at over $500 million since January 2011, while our sibling data provider ALM VerdictSearch counts 11 U.S. jury verdicts of $500 million in 2011–12. Petroleum cases again dominate the international awards, while intellectual property dominates the U.S. verdict log.
In the largest defense award of the period, Turkey defeated an $11 billion claim for expropriated power assets by an Uzan family entity. This litigious Turkish clan is familiar to Scorecard fans from many past cases, starting with the Motorola Inc. fraud claims of 2003.
Our list of biggest settlements, compiled here for the first time, is led by Algeria and Kazakhstan's renegotiation of terms with oil investors. A trio of Venezuelan settlements brought the total disbursed to foreign investors by the late Hugo Chavez to over $7 billion.
Freshfields Bruckhaus Deringer handily tops our list of the busiest high-stakes arbitration counsel, as it has every year since we began keeping it. As usual, Shearman & Sterling, White & Case, and King & Spalding follow close behind. But these Arbitration Scorecard stalwarts have a new rival. In our last survey, George Kahale III of Curtis, Mallet-Prevost, Colt & Mosle argued that "pound for pound . . . we match up with any law firm in the world in arbitration." This time, he backed up the bluster by doubling the number of Curtis's disputes in the survey from 17 to 34, good for third place, behind Shearman. Like Foley Hoag, which moved up to seventh, Curtis unabashedly positions itself as a law firm for sovereign nations. It counts about 10 states as arbitration clients, including Venezuela (which has 24 cases in the survey) and India (which joined the stable this spring). That strategy has powered Curtis to 10 straight years of rising profits, according to The American Lawyer 's reporting. Measured by the number of high-stakes disputes, the arbitration world now has a Big Five.
The reigning king of international arbitrators, with 27 disputes in our survey, is the indefatigable Charles Brower, who took the crown in 2009 from Yves Fortier. This year we coronate a new queen, Brigitte Stern of Université de Paris I, who ties Brower for most cases in the survey. Although the pool of elite arbitrators is remarkably stable, Brower and Fortier—along with Gabrielle Kaufmann-Kohler—are the only three arbitrators to appear in every top 10 list we have compiled since the survey began.
The proportion of women among arbitrators in our survey remains stuck at a paltry 4 percent since we started counting in 2009. Aside from super-arbitrators Kaufmann-Kohler and Stern, no woman receives large public appointments with any regularity. "The situation seems to be frozen," says Stern. Counsel often say that the main qualification for being appointed in a high-stakes dispute is having served in that role already. With that in mind, we publish here the names of 10 women appointees not named Stern or Kaufmann-Kohler [ see "Deciding Women"].
Over the years, the Arbitration Scorecard has covered everything from the kidnapping of an arbitrator ["Arbitral Terrorism," 2003] to the memorable allegation that Kenya's former president took a suitcase of cash from an investor and returned it filled with fresh corn ["Cash for Corn," 2005]. But the most striking trend over the years covered by the Arbitration Scorecard is the emergence of investor-state arbitration. Annual filings at the International Centre for Investment Tribunals, which account for two-thirds of the treaty disputes in the Scorecard, have risen steadily from 14 to 50 this millennium, while annual filings at the ICC International Court of International Arbitration, accounting for half of the contract disputes in our survey, have fluctuated from 566 in 2001 to 1,230 in 2008 to 759 in 2012. [For a detailed look at investment arbitration trends of the past decade, click here.]
As noted in our last two surveys, one battleground is rarely enough for the largest and most complex disputes. A taxonomy of international business disputes would be too ambitious to attempt here. But two clusters of cases may be worth flagging.
The survey includes at least seven sets of multiple claims against states by affiliated investors, and at least a dozen disputes argued in parallel under treaty and contract theories. Both phenomena are illustrated by the natural gas exporters that sued their Egyptian suppliers for closing the pipeline from Sinai to Israel after the fall of Hosni Mubarak. East Mediterranean Gas Company is fighting two contract arbitrations in its own name, while its investors have brought another two treaty arbitrations (Maiman v. Egypt and Ampal-American v. Egypt ). Shearman's Emmanuel Gaillard, who represents Egypt, perceives "a new trend, whereby the same claim is brought against a state by a company claiming to have made the investment and [by] shareholders of that company." That phenomenon isn't new, but a spike in high-profile examples is apparent.
Perhaps the most fascinating variant is the treaty claim filed as a result of a failed contract claim. In the 2009 survey we correctly predicted that with its contract arbitration against Ecuador dead-ending, Chevron would soon file a treaty claim to hold Ecuador accountable for the results of an Ecuadorian trial that Chevron regards as deeply flawed. The general pattern of contract-to-treaty arbitration might soon be seen in a quartet of sizable oil consortium complaints against the Nigerian National Petroleum Corporation. After the Nigerian High Court enjoined their contract arbitrations or—in the case of the group led by Exxon Mobil Corporation—vacated a $2 billion award, treaty arbitration against Nigeria itself may conceivably be the investors' only recourse.
A review of the largest awards in the history of Arbitration Scorecard leads to two strong conclusions. First, the treaty awards have been of lower magnitude. Of the 30 awards we've identified over a half-billion dollars, only one was a treaty award. Second, the treaty awards are less likely to be paid. All of our largest contract awards that have been litigated to completion have been enforced or settled. But among the 15 treaty awards of about $100 million or higher, only four have been substantially paid. Two have been annulled, one was vacated by a U.S. court, one was withdrawn in light of corruption investigations, one settled for 37.5 percent of its value after the investor was allegedly entrapped and thrown in prison, three are unpaid, and three await further proceedings. (For the largest commercial and investor-state awards since 2001, see here and here.)
Now decisions are looming in the four largest credible treaty claims: by Yukos, Chevron, Conoco, and Exxon. An award for even 2 percent of the amounts claimed in Yukos would shatter the record for treaty arbitration, and test the bounds of enforceability. By our next survey, we're likely to know whether these cases set new records for big awards, big defense wins, or big settlements. The door is open wide, and we'll be keeping score.