Huge plaintiff awards are usually associated with jury verdicts in Texas. But sometimes they can come without one, as Houston litigator Karl Stern can attest after he recently convinced an arbitration panel to award $622 million against Brazil state-owned oil company Petrobras for breaking a contract with his client.
Stern, a partner in the Houston office of Quinn Emanuel Urquhart & Sullivan who co-heads his firm’s energy practice, represents Vantage Deepwater—a Houston-based drilling company that entered into an eight-year agreement with Petrobras to operate a drilling rig in the Gulf of Mexico in 2009.
According to that contract, Petrobras agreed to pay Vantage a rate of $490,000 a day to operate the offshore drilling rig beginning in 2012. The parties subsequently amended their drilling contract in 2014.
But in 2015—less than three years into the eight-year deal—Petrobras terminated the agreement.
Because the drilling agreement had a clause providing that any dispute between the parties would be resolved in arbitration, Vantage filed a demand for arbitration before the International Center for Dispute Resolution of the American Arbitration Association in Houston.
Before a tribunal consisting of one arbitrator selected by Vantage, one arbitrator selected by Petrobras and another arbitrator selected by both parties, Stern argued that Vantage should be awarded the remaining portion due to them under the eight-year contract.
But Petrobras responded that the drilling agreement was void because it was procured by fraud and that the contract termination was proper due to operational failure by Vantage. In 2016, Petrobras executive Jorge Zelada was sentenced to 12 years and two months in prison by a Brazilian judge for corruption and money laundering after he was convicted for unduly awarding Vantage the drilling contract in 2009.
Stern argued to the arbitrators that Petrobras was happy with its contract with Vantage until oil prices dropped halfway through the contract’s life. And he also argued that there was no evidence of bribery presented in the case and even if there were, there was no evidence that Vantage company officials knew about it.
And in a June 29 split decision, the arbitration panel issued a final award to Vantage, handing them $615.6 million and another $5.2 million for its unpaid invoices in a 103-page decision.
The arbitrator appointed by Petrobras refused to sign the award and filed a one-sentence dissent that alleged “the prehearing, hearing and posthearing processes that led to the issuance of the final award have denied [Petrobras] in this proceeding the fundamental fairness and due process protections meant to be provided to arbitrating polices.”
However the dissenting arbitrator only provided “generic reasons”’ for his opposition in a footnote.
While some litigators are critical of the arbitration process and the inability to appeal even wrongfully decided disputes, Stern embraces the system. And he recently filed a motion to have the big arbitration award confirmed by a U.S. district court in Houston.
“I’m a commercial litigator and tend to handle big complex cases and sometimes they fall into arbitration. And I’ve had very good success in arbitration,” Stern said. “It’s about making a compelling case and choosing arbitrators who are smart, fair and willing to roll up their sleeves and do the work. And if you do those things, you’re going to get a good result.’’
And the high damage award just tracked the language in the contract that called on Petrobras to pay his client $490,000 a day to operate a drilling rig, he said.
“It was just a big contract,” Stern said. “And just from my perspective, what I thought drove the decision is you had a company like Petrobras that was satisfied with this contract when energy prices were high. And at the end of 2014 the prices crash, they say, ‘What can we do to get out of the contract?’ and that’s exactly what they did. We were able to tell a pretty compelling story against that backdrop.’’
William Katz, a partner in Dallas at Thompson & Knight who represented Petrobras before the arbitration panel, did not return a call for comment.
A statement released by Petrobras notes that the company will use “all available legal remedies” to oppose the arbitration award.
“Petrobras America Inc. terminated the contract due to material operational failures by Vantage,” according to the statement. “As revealed in ‘Operation Car Wash,’ the drilling contract was procured by corruption. Petrobras has been recognized as a victim of the corruption discovered through said investigation by the authorities in Brazil, including the Brazilian Supreme Court.”