GAR 100 – 10th Edition. B. Cremades & Asociados

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Home to Spain’s best-known arbitrator

Bernardo Cremades followed an unusual career path, starting out as an arbitrator aged 26 then moving into advocacy work. He has been involved, as counsel or arbitrator, in more than 360 proceedings to date, and now focuses most of his time on arbitrator work. Among other roles, he is a former vice president of the LCIA and a current member of the International Council of Commercial Arbitration. He is a founding member of the Spanish Arbitration Club and was, for many years, a president of the Spanish Court of Arbitration.

In terms of his jurisprudential contribution, his name is on many significant awards at ICSID, including cases that developed the mechanism of the formation of an arbitration agreement under an investment treaty; the relationship between contract and treaty claims; the effect of illegality on investment protection; and the definition of an investment. A source in Spain says his “influence can be seen in the most important judicial decisions in the field”, and he had a significant influence on the drafting of the 1998 Spanish Arbitration Law.

In 2013, Cremades’s contribution was recognised at a conference in Lima, Peru, where he and French arbitratorYves Derainswere presented with a liber amicorum with 96 contributing authors. In the same year, the King of Spain also presented Cremades with the Grand Cross of the Order of St. Raymond of Peñafort, in recognition of his services to the administration of justice and the study of law. He has also received a medallion from the Arab Association for International Arbitration recognising him as an “ideal arbitrator in Euro-Arab arbitration”.

The firm that bears his name, founded in 1969, is home to around 10 lawyers devoted to international arbitration, many of whom also undertake client work. It has a reputation for being Spain’s unofficial university of arbitration: aGARspecial report on Spain discovered that at least half of the leading Spanish names in the market had earned their stripes at B Cremades & Asociados.

While many of those colleagues have moved on to pastures new, partner David Cairns is now also a well-known figure in his own right and also sits as an ICSID arbitrator. Educated in New Zealand, Cairns has worked in Madrid since 1999. He has featured inGAR’s “45 under 45” – a list of the leading younger practitioners in the field.

The founder’s son, Bernardo Cremades Jr, joined the firm in 2013 from Curtis Mallet-Prevost Colt & Mosle in New York. While at Curtis he advised on several high-profile arbitrations, including helping to defend Venezuela in ICSID claims initiated by US oil company ConocoPhillips, Mexican cement group Cemex and US telecoms investor Brandes.

Track record

The firm reports two successes for Gas Natural in pricing arbitrations against another Spanish energy company. Several billion dollars were at stake in each case.

Another public win was for Spanish road builder Elsamex in an ICSID claim against Honduras concerning withheld payments for the reconstruction of a road destroyed by a hurricane. A sole arbitrator awarded the company US$8 million in 2012. Honduras later settled with the investor after abandoning its effort to have the award annulled.

The firm has worked wonders for another client, helping to set aside an award in a dispute between a major German textile brand and its Spanish licensee. The firm hadn’t been involved in the original arbitration but went on to represent the client in a second arbitral proceeding where damages were reduced by 60 per cent and a counterclaim for more than €243 million was upheld. They are now helping the client sue the arbitrators from the first proceeding for damages, and have obtained favourable court rulings at two instances; a Supreme Court appeal is pending.

In 2014, Cremades’s firm also brought home a €61 million win for Spanish shareholders in a multinational food group who brought a claim against its French parent company.

Recent events

The firm promoted Javier Juliani to the partnership.

Cairn received his first appointment as arbitrator at ICSID from a Canadian investor bringing a US$200 million NAFTA claim against Mexico.

The firm helped a large utility company favourably settle a €94 million claim brought by another public-private entity in the Spanish electricity sector.

Brazilian football club Santos FC continues to use the firm in a dispute over the sale of Brazilian soccer star Neymar to FC Barcelona. The claim, which is against FC Barcelona, Neymar’s father and his family’s holding company, is being heard before the FIFA Players’ status committee. The firm also helped the club see off a related criminal complaint in the Spanish courts lodged by a Brazilian investment fund.

Bernardo Cremades enjoyed another active year as arbitrator. He was part of an ICC panel in Geneva that awarded more than €550 million to Russian state-owned nuclear company Atomstroyexport in a politically sensitive dispute with Bulgaria’s national electricity company.

At ICSID, he was part of an ad hoc committee that upheld a controversial US$376 million award against Romania that the European Commission has denounced as illegal state aid.

He sat on a NAFTA panel that ordered Canada topay more than US$21 million to a US investor in a failed wind energy project – thought to be the largest sum awarded against Canada under the trade agreement.

Cremades also delivered the 2016 Chartered Institute of Arbitrators’ Alexander Lecture – using the opportunity to highlight the abuse of due process in international arbitration, which he said has become “a real threat” to tribunals.

Who We Are

B. Cremades & Asociadoswas founded in 1969 by Professor Bernardo M. Cremades. Since then, it has consolidated its reputation as a leading firm in international law and, in particular, international commercial and investment arbitration.

We have a team of approximately 20 lawyers with a high degree of specialization in our strategic areas. Our principal practice areas are national and international dispute resolution, and we also advise on corporate, financial, administrative and tax law.

Unparalleled Experience in International Arbitration

B. Cremades & Asociadosis the pioneer of arbitration in Spain (both commercial and investment protection arbitration). Bernardo M. Cremades, the managing partner of the firm, has participated as counsel or arbitrator in more than 330 arbitration proceedings. He is one of the most experienced arbitration practitioners in the world and the undisputed leader in the Spanish-speaking market.

Bernardo M. Cremades has been responsible for some of the most significant doctrinal developments in the history of arbitration, including the recognition of thelex mercatoria, the formation of the arbitration agreement under investment protection treaties, and the definition of the term “investment” in international law.

The prestigious publicationChambers & Partnersdescribes Bernardo M. Cremades as a “legendary arbitrator” and his team as a “leading international practice, representing high-profile clients from across the world.”Global Arbitration Reviewclasses our firm as “Spain’s unofficial university of arbitration” and adds that nearly half of the professionals listed in its guide for Spain are members of our office or have worked here at some point in their careers.Who’s Who Legalrefers to Bernardo M. Cremades as the “number one practitioner in Spain for commercial arbitration” and “one of the top names in the industry.” The Arab Association for International Arbitration (AAIA) has recognized Bernardo M. Cremades as an “Ideal Arbitrator in Euro-Arab Arbitration.”

Our Team

In the arbitration team ofB. Cremades & Asociadosall our lawyers enjoy international profiles, allowing us to provide advice on both common law and civil law matters. Several of our attorneys are members of the bar in jurisdictions other than Spain, including England and Wales, France, Germany, Libya, New York and New Zealand.

Our attorneys are thoroughly familiar with the most commonly used arbitration rules, including the International Centre for Settlement of Investment Disputes (ICSID); the International Chamber of Commerce (ICC); the United Nations Commission on International Trade Law (UNCITRAL); the Arbitration Institute of the Stockholm Chamber of Commerce (SCC); the American Arbitration Association (AAA) and its International Centre for Dispute Resolution (ICDR); the Permanent Court of Arbitration of the United Nations (PCA); the London Court of International Arbitration (LCIA); the China International Economic and Trade Arbitration Commission (CIETAC); the Association of Swiss Chambers of Commerce; the German Institution of Arbitration (DIS); the Inter-American Commercial Arbitration Commission (IACAC); the World Intellectual Property Organization (WIPO); The Cairo Regional Centre for International Commercial Arbitration (CRCICA); the Civil and Commercial Court of Arbitration (CIMA); and the Court of Arbitration of Madrid.

We are accustomed to handling international disputes involving more than one jurisdiction or arbitral seat. We regularly monitor and advise on local arbitration procedures outside Spain when a high degree of sophistication is required in public or private international law.

Our arbitration team advises clients before, during and after the arbitration proceeding. These services include:

  • assistance with the drafting of arbitration clauses and the design of ADR mechanisms;
  • negotiations with other parties before or during the proceeding;
  • applications for injunctions and provisional relief related to arbitral proceedings; and
  • the recognition, enforcement and annulment of arbitral awards.

The partners in our firm enjoy wide international recognition. Several of our lawyers appear in the panels of the most prestigious arbitration institutions throughout the world and frequently are invited to lecture or speak in international events devoted to arbitration or public international law. Bernardo M. Cremades is a member of the ICSID panel of arbitrators (appointed by the Government of Spain) and David J. A. Cairns is a member of the ICSID panel of conciliators (appointed by the President of ICSID). Bernardo M. Cremades, Jr. has a wealth of expertise in the defense of sovereign states in international arbitrations and Günter Helbing in resolving disputes relating to industrial plants and equipment. Ángel M. Tejada has over thirty years of experience in dispute resolution involving all types of arbitrations and judicial proceedings relating to arbitration.

Investor-State Arbitration

Our lawyers have participated in many significant investment arbitrations as counsel, party-appointed arbitrator or presiding arbitrator, including in some of the largest arbitrations in history in terms of amount claimed. No other office in Spain approaches our level of expertise in this field.

Our attorneys are thoroughly acquainted with the particularities of investment arbitration, as well as the applicable procedural rules and the extensive case law. We have participated in investor-State proceedings initiated as a result of expropriation (direct or indirect) and other violations of the substantive protections contained in international instruments, such as bilateral and multilateral investment protection treaties and other agreements to promote investments, as well as international administrative contracts. Our experience includes arbitrations pursuant to the Energy Charter Treaty (ECT) and the North American Free Trade Agreement (NAFTA).

Some of the investor-State arbitrations in which we have participated resulted in arbitral awards which are regularly cited in arbitral texts and jurisprudence, includingCompañía de Aguas del Aconquija, S.A.andVivendi Universal v. The Republic of ArgentinaandElsamex, S.A. v. The Republic of Honduras. The publicationGlobal Arbitration Reviewsays the name of Bernardo M. Cremades appears “on many of the most significant awards at ICSID.” For example, the arbitral award issued inSalini Costruttori S.p.A. and Italstrade S.p.A. v. The Kingdom of Moroccohas become a key decision in international law in relation to the definition of an “investment” under a bilateral investment treaty. InLanco International, Inc. v. Argentina, the decision on jurisdiction was the first time that an arbitral tribunal was found to have jurisdiction to arbitrate a dispute between a foreign investor and the Republic of Argentina. The dissenting opinion of Bernardo M. Cremades inFraport AG Frankfurt Airport Services Worldwide v. Republic of the Philippinesis an international reference on the analysis of the legality of a given foreign investment.

Our arbitration team works closely with our tax department in order to design and implement corporate structures which on one hand maximize tax efficiency and on the other hand minimize political risk. This is particularly important when there is a risk that an investment will be detrimentally affected by state measures and thus requires protection under an international treaty.

Commercial Arbitration

In the field of commercial arbitration,B. Cremades & Asociadosenjoys national and international prestige. We have strong expertise in arbitrations relating to various sectors, including energy, oil, gas, natural resources, construction, engineering, pharmaceuticals, transportation, telecommunications, intellectual property, national and international procurement, corporate arbitrations, joint ventures, international sale of goods and distribution contracts.

We also have considerable experience in arbitrations relating to capital markets and the banking sector, including proceedings arising from the issue of preferred securities by Spanish savings banks. We also have considerable experience in disputes involving FIDIC construction contracts.

Amongst cases in which the firm has recently participated as counsel are the following:

  • arbitration between one of Spain’s leading banks and a Turkish telecommunications company;
  • two arbitrations between two of the world’s largest energy companies;
  • arbitration between prominent French and Spanish telecommunications companies;
  • arbitration involving a Colombian railway company against a U.S. company;
  • arbitration involving a Spanish engineering company against a Middle East State-owned oil company;
  • multiple heavy plant construction disputes involving construction contracts in Europe and the Middle East;
  • intellectual property dispute involving a Spanish and a U.S. company;
  • arbitration between a French food group and its shareholders;
  • arbitration concerning a distribution contract and intellectual property rights involving a German and Spanish company;
  • arbitration between the Spanish branch of a German pension fund and the developer of a seven-star hotel, and
  • arbitration between a Bolivian holding and a Mexican cement producer.

Some of the international commercial arbitration cases in which members of our firm have participated also resulted in decisions of undisputable importance for the development of international arbitration. For example,Pabalk Ticaret Ltd. v. Norsolor, S.A., in which Bernardo M. Cremades was president of the tribunal, was the first occasion an arbitral tribunal appliedlex mercatoriato render a decision. On his part, Angel M. Tejada has recently obtained the first annulment of an arbitral award due to the violation of the principle of collegiality in the deliberations of an arbitral tribunal.

B. Cremades & Asociadoshas an excellent network of contacts with arbitration specialists from all over the world and, in particular, in the main arbitration venues. Furthermore,B. Cremades & Asociadosis a member of TAGLaw, an association of quality law firms with a presence in over 80 countries.

Alternative Dispute Resolution– ADR

Our firm also has experience in the structuring and presentation of disputes before dispute adjudication boards. Members of our firm are currently serving in dispute adjudication boards in major infrastructure construction projects in Qatar and Ecuador.

Similarly, our team provides advice on national and international mediation. David J. A. Cairns is an accredited mediator in the United Kingdom.

Flexible Billing

The integrated structure of the firm allows us to focus on our areas of expertise, eliminating non-strategic areas in order to be highly competitive when it comes to establishing our fees. Moreover, unlike other larger firms, we have no internal restrictions on billing, so we can be flexible in the negotiation of fee structures with our clients.