In a small resort called La Féclaz in the Alps, a lawyer was sitting next to me in the restaurant telling stories about criminal law. I said then: ‘That’s what I’m supposed to do.’ I was just going through the motions before that and being made miserable by studying maths.
I spent two summers at Rockefeller Plaza being a New York lawyer when I was 30 at a two-partner law firm called Layton & Sherman. They were typical New Yorkers… always in pinstripe suits! I had never been to Manhattan. I lived near the Upper West Side and I was going out in jazz bars and going downtown meeting artists.
I wanted an academic firm so I went to Bredin Prat in Paris and my first-ever case was for Sonatrach. What is now Anadarko had terminated a 20-year gas contract with Sonatrach after Ronald Reagan deregulated the US market and the prices collapsed. Sonatrach has been very critical to me as it has been a client for the 30 years since then. I was instructed again for Sonatrach against Anadarko recently and I told their counsel from King & Spalding that they were on the wrong side as my client is more loyal!
I had been working on all these cases with Shearman & Sterling as they didn’t have an arbitration team so had to use us. Algerian law is close to French law so they decided to have a French presence and hired me as of counsel in 1987. It was just me and an associate at first, but I was making more than when I was a partner at Bredin. We’re probably now the biggest arbitration team in the world.
Shearman is very entrepreneurial and not tightly managed. Initially they gave me a lot of freedom as they didn’t know much about arbitration, and now they give me a lot of freedom because it’s very profitable!
I like to shape the evolution of the law. To have people quoting me in the legislation of the Philippines and in cases before the Supreme Court of India is something I would never have expected when I was 16 listening to this guy bragging about criminal cases!
Billionaires are very poorly prepared for cross-examination. They like to lecture, not listen to their lawyers.
Billionaires are very poorly prepared for cross-examination as they don’t take questions from their own lawyers but then, in front of a tribunal, they have to answer them. They like to lecture, not listen to their lawyers, but always want to be at the centre of a case because they’re a billionaire and think they make the case look good. I keep a tally of the number of billionaires I have cross-examined in the office!
The $2.5bn Dow award I secured stood as the largest arbitration award for some time. It was overtaken but then came Yukos for $50bn. That record will last for longer.
I loved cross-examining the Russian tax law expert in Yukos, a man called Konnov, so much that it took three days. When you present a case, there’s no-one to contradict you. The witness is a surprise and the best of your case can be gone in one answer. You have to use a lot of psychology and prepare all kinds of scenarios. I used to bring in a very sterile list of questions but I don’t do that anymore, I learn the case by heart and adjust to the answers.
I’m proud of the Yukos case. We presented the client with pages of things we needed to overcome to be successful with the case and ended up winning. Everything was seized by the Russians, all the Yukos papers were seized, and that did not help.
We were hired when Mikhail Khodorkovsky, who founded Yukos, was thrown in jail by Putin in 2003. He became a big political threat to Putin. At one time Russia’s minister for information told Khodorkovsky that he was being quoted more than Putin in the western press.
We had a five-week hearing on merits in The Hague and rented a big part of the Kurhaus hotel on the beach in Scheveningen and this was our war room. I like to work on the beach. One of the witnesses loved that we could eat herring by the sea while we prepared for the case.
Nothing has been paid yet. I told the client it’s a 20-year case with three battles: jurisdiction, the merits and enforcement. It’s not a surprise that Russia didn’t send a cheque as soon as the award came out. We will have lots of battles in different places.
Emmanuel Gaillard is head of international arbitration at Shearman & Sterling