Often, the nature of a dispute, the international identities and locations of the counterparties, and the jurisdictions involved make the traditional process of resolution through the English or local court system impractical or inapplicable. International arbitration is a specialised process designed to offer a practical, efficient, and equally binding forum for the resolution of such disputes. In addition, international arbitration can be faster and more flexible than conventional litigation.
Gardner Leader’s international arbitration team has experience in resolving commercial and investment disputes between States, and between qualifying investors and States or State-owned entities under international law conventions, investment treaties, foreign investment laws and investment contracts. We have conducted arbitrations under all of the major institutions (ICC, LCIA, UNCITRAL, Swiss Rules, GAFTA and ad hoc).
Investment Treaty / State Disputes
In investment arbitration, our team has experience in representing both States and investors, on a range of disputes ranging from mid to high value claims in the renewable and conventional energy, financial services, agricultural, telecommunications, competition, creative industries and construction sectors. The individual team members’ recent and current experience includes:
- Advising Italian investors in their claim under a bilateral investment treaty (BIT) against an East African state for cancellation of a biofuels project where the lost profits claimed exceed $100M.
- Representing Cypriot investors in their claim against the State of Greece under a BIT, in relation to breaches of anti-discriminatory measures, unfair and inequitable treatment, and most-favoured nation clause in imposing an arbitrary haircut on bondholders leading to a loss of over US $3BN.
- Advising the Republic of Iraq on treaty obligations generally, and in relation to specific disputes arising out of the Iraqi government’s decisions affecting investors in the telecommunications sector.
- Acting for the claimant in a claim arising out of a 15 year, multi-billion contract for the supply of grain by one state-owned entity to another (before GAFTA).
- Advising numerous investors of different nationalities on pre-investment dispute matters including choice of forum (ICSID, ICC, ad hoc and other).
In commercial arbitration, the Gardner Leader team has substantial experience advising claimants and defendants ranging from private individuals to start-ups, SME’s and larger businesses, and larger corporations and state-owned entities. For arbitrations seated in England or where the assets are in England, our litigation team is well placed to assist arbitration capabilities. Given the strength and excellent value of our Newbury and Maidenhead-based London litigation practice, our work in arbitration is complimented by our ability to assist arbitration clients on the ancillary litigation in support of arbitration in the English courts. These include interim relief applications, and actions to set aside (under s67 of the English Arbitration Act) or enforce an award, where the Gardner Leader team has been successful recently.
Representative experience includes:
- Advising a large Turkish hotel Owner group against a major international hotel operator in an ICC arbitration for breach of hotel management obligations and gross negligence under an international management contract. The seat is London and the value is $11M.
- Advising Russian shareholders in their joint venture dispute against a Russian joint venture partner who breached the investment provisions of a joint venture agreement for the provision of oil and gas services. LCIA arbitration. Value: $25M.
- Representing a state-owned entity, the employer, in the Middle East defending against an arbitration claim of around $50M brought by its contractor for wrongful termination, in the tourism and construction sector. DIAC arbitration. Seat of arbitration was Dubai.
- Acting (in conjunction with lawyers at leading German and Swiss law firms) for a Turkish company in various contested arbitral and legal proceedings regarding a boron extraction plant in Bandirma commissioned by the Turkish government. The proceedings have included the following:
- A successful 4-day challenge in the Commercial Court under s 67 of the Arbitration Act 1996 to the jurisdiction of the arbitrator (a leading English commercial silk) who was due to conduct an arbitration in Istanbul the following week [ASES Havacilik Servis Ve Destek Hizmetleri A.S. v Delkor UK Limited  EWHC 3518 (Comm),  1 Lloyd’s Rep 254].
- Subsequent arbitral proceedings in Switzerland (under Swiss law).
- Costs recovery involving complex issues of the overlapping jurisdiction of the Swiss tribunal, incorrectly constituted English tribunal and the English Court.
- Demand guarantees subject to Turkish law and jurisdiction but restrained from payment by (English) injunctions under s 44 Arbitration Act 1996.
- Representing a PLC in LCIA arbitration proceedings regarding the construction of terms of a settlement agreement involving various Russian parties in relation to the purchase of an oil terminal. The matter involved highly complex issues, including complicated corporate structures and ongoing Russian related court proceedings, multi-jurisdictional and cross border issues.
- Acting for medical devices distributor in defending multi-million arbitration proceedings (Swiss Rules) in Zurich against a global Swiss manufacturer/supplier.
- Acting for US Listed Pharmaceuticals Company in various arbitrations (ICC).
Gardner Leader also recognises that in some instances, the budget for prosecuting or defending against arbitration claims may be challenging especially in circumstances where an investor has been expropriated of all his/its assets and requires financial assistance to pursue its claims. Gardner Leader has experience in advising on obtaining alternative finance for clients where needed. Part of the Gardner Leader team has direct experience of third party funding, having worked in-house at a global litigation funder. Where the merits and the economics of the case permit, we are able to advise on creative funding solutions for our clients. Gardner Leader has formed a strong network of ‘partner’ lawyers across the world experienced in investment arbitration with whom to co-counsel where appropriate.