Abby Cohen Smutny is recognized as one of the world’s leading experts in international arbitration.
She represents clients in international commercial arbitration, in investment treaty arbitration, and in international disputes before U.S. courts, and counsels clients as to a wide variety of claims.
She has represented and counseled clients in disputes involving numerous industries, including banking, financial services, oil & gas, mining, electric power, real estate development, water supply, retail, pharmaceuticals, construction, tobacco, railroads, telecommunications, and manufacturing.
Ms. Smutny represents clients in arbitrations before all major arbitral forums including ICSID, the ICC, the Vienna International Arbitral Centre, the LCIA, as well as ad hoc arbitrations, such as under the UNCITRAL Rules, and handles disputes arising under bilateral investment treaties (BITs), the Energy Charter Treaty, the NAFTA, the DR-CAFTA, and the ASEAN treaty.
She has been described over the years by Chambers and other guides to the profession as "a real star," who is "especially knowledgeable on investment protections and treaty-based claims," as "a major force in treaty arbitrations," who is "smart, practical and manages to be both aggressive and diplomatic," as having "immense integrity," as being "renowned for her thorough and technical preparation, as well as her vigorous and energetic advocacy," that "you can’t go to a better practitioner, especially on cutting-edge cases," as "a motivational powerhouse," who has "virtually unrivalled knowledge of state responsibility and investment treaty protection," and as being "excellent" and "the best."
Significant representations include:
- In Československá obchodní banka, a. s. v. Slovak Republic, representing one of the leading banks in the Czech Republic in an ICSID arbitration of a dispute with the Slovak Republic in which our client was awarded US$877 million, the largest ICSID award to date by far;
- In Gold Reserve Inc. v. Bolivarian Republic of Venezuela, representing Gold Reserve Inc. in an arbitration before ICSID of claims arising under the Canadian-Venezuelan bilateral investment treaty relating to one of the largest undeveloped gold/copper deposits in the world.
- In Plama Consortium Limited v. Republic of Bulgaria, representing the Republic of Bulgaria in an ICSID arbitration of a dispute arising under the Energy Charter Treaty and bilateral investment treaties involving the operation of an oil refinery in which claims of the investor were dismissed in their entirety and our client obtained a sizable cost award;
- In EDF (Services) Ltd v. Romania, representing Romania in an ICSID arbitration of a dispute arising under a bilateral investment treaty relating to a concession to provide duty free and other retail services at Romanian airports in which claims of investor were dismissed in their entirety and Romania obtained a sizable cost award;
- In PSEG Global Inc. and Konya Ilgın Elektrik Üretim ve Ticaret Limited Şirketiv v. Republic of Turkey, representing a US electric power developer in an ICSID arbitration of a dispute with the Republic of Turkey arising under a bilateral investment treaty in which our client obtained an award granting it the return of its project development costs with interest plus legal fees and costs;
- In Noble Ventures, Inc. v. Romania, representing Romania in an ICSID arbitration of a dispute arising under a bilateral investment treaty relating to the privatization of steel facilities in which claims of investor were dismissed in their entirety and Romania obtained a sizable cost award;
- In Fraport AG Frankfurt Airport Services Worldwide v. Republic of the Philippines, representing the Philippines in an ICSID arbitration of a dispute arising under the German-Philippines bilateral investment treaty relating to investments in a company granted a concession to construct and operate a passenger airport in Manila in which claims of the investor were dismissed in their entirety;
- Representing a consortium of investors in a dispute with a municipality regarding the implementation of a water concession contract before the International Arbitral Centre of the Austrian Federal Economic Chamber and obtaining a favorable award of over US$100 million;
- In Aguaytia Energy, LLC v. Republic of Peru, representing Peru in an ICSID arbitration of a dispute involving electricity transmission and legal stability agreements in Peru in which the claims of the investor were dismissed in their entirety;
- In Trans-Global Petroleum Inc. v. Hashemite Kingdom of Jordan, representing Jordan in an ICSID arbitration of a dispute arising under the U.S.-Jordan bilateral investment treaty relating to a oil production sharing agreement defending against claims of US$1 billion that were released in their entirety in a favorable consent award;
- In Giovanna A. Beccara and others v. Argentine Republic, representing over 170,000 Claimants in an ICSID arbitration of a US$4.4 billion dispute arising under the Italy-Argentina bilateral investment treaty relating to Argentina's default on the payment of sovereign bonds;
- In S&T Oil Equipment and Machinery v. Romania, representing Romania in an ICSID arbitration of a dispute arising under a bilateral investment treaty relating to the privatization of several companies, which was terminated without any finding of liability for Romania;
- In Philippine International Air Terminals Co., Inc. v. The Government of the Republic of the Philippines representing the Republic of the Philippines in an ICC arbitration involving claims of over US$1 billion arising out of a concession contract to construct and operate an airport terminal;
- In CEMEX Asia Holdings Ltd v. Republic of Indonesia, representing the Republic of Indonesia in an ICSID arbitration of a dispute relating to investments in a cement facility arising under contracts and the ASEAN treaty, which was settled on terms favorable to Indonesia;
- In MTD Equity Sdn. Bhd. and MTD Chile S.A. v. Republic of Chile, representing the Republic of Chile in an ICSID arbitration of a dispute arising under a bilateral investment treaty relating to a real estate development project;
- In AES Summit Generation Ltd v. Republic of Hungary, representing the Republic of Hungary in an ICSID arbitration of a dispute arising under the Energy Charter Treaty and a bilateral investment treaty relating to power purchase agreements, which was settled on terms favorable to Hungary;
- In TECO Guatemala Holdings v. Guatemala, representing TECO Guatemala Holdings in an ICSID arbitration of an investment treaty dispute with Guatemala under the Central America – United States Free Trade Agreement (CAFTA) arising out of TECO’s investment in an electricity distribution company;
- In Mondev International Ltd. v. United States of America, representing a major Canadian real estate developer in an arbitration before ICSID's Additional Facility of a dispute with the United States of America arising under NAFTA's Chapter 11;
- In Compañía del Desarrollo de Santa Elena S.A. v. Republic of Costa Rica, representing the Republic of Costa Rica in an ICSID arbitration of a dispute relating to the expropriation of real property for purposes of environmental conservation;
- In Eudoro A. Olguín v. Republic of Paraguay, representing a Peruvian national in the jurisdictional phase of an ICSID arbitration of disputes against the Republic of Paraguay arising under a bilateral investment treaty;
- In Electricidad Argentina S.A. and EDF International S.A. v. Argentine Republic, representing EDF in relation to an ICSID arbitration brought against Argentina under the provisions of the France-Argentina bilateral investment treaty relating to investments in the electricity sector;
- Representing a US company in an ICC arbitration against the Islamic Republic of Iran regarding military procurement contracts;
- Representing a US company in an ICC arbitration of disputes with a North African State and its national oil company involving oil concession contracts and Production Sharing Agreements;
- In Amco Asia Corporation and others v. Republic of Indonesia, representing the Republic of Indonesia against claims of expropriation in ICSID arbitration including in annulment proceedings;
- In Manufacturers Hanover Trust Company v. Arab Republic of Egypt and General Authority for Investment and Free Zones, representing Manufactures Hanover Trust Company in an ICSID arbitration claiming expropriation of its investment through abusive tax regulation;
- In Novera Properties et al v. Republic of Bulgaria, White & Case represents the Republic of Bulgaria in claims presented under bilateral investment treaties by Novera Properties, Mezzanine Management Sweden and Accession Eastern European Capital relating to the termination of the concession for waste collection and street cleaning by the municipality of Sofia;
- Representing a State in an ICC arbitration of a dispute arising out of the privatization of a telcommunications company;
- Representing private companies presenting claims of indirect expropriation under policies of political risk insurance arising from investments in Europe, the Carribbean and Latin America;
- Representing a State in an ICC arbitration of a dispute relating to a chemical manufacturing facility;
- Representing a Belgian corporation seeking to enforce an ICC arbitral award of over US$30 million against the Republic of Yemen in US courts;
- Representing a State in regard to judicial enforcement proceedings relating to an ICC award;
- Preparing over US$1 billion of claims for submission to the United Nations Compensation Commission (UNCC) in Geneva on behalf of nationals of Bosnia-Herzegovina, Kuwait, Turkey and the United States; and
- Serving as sole arbitrator in various ICC arbitrations involving distributorship agreements and licensing agreements.
Bars and Courts
New York State Bar
District of Columbia Bar
US District Court for the District of Columbia
Education
JD, University of Chicago Law School, 1990
AB, Vassar College,
cum laude, 1986
Université des Langues et Lettres de Grenoble, (Certificate), 1986
London School of Economics and Political Science, (Certificate), 1985
Professional Associations and Memberships
American Law Institute, Member
American Society of International Law, Vice-President, Member of the Executive Committee, Member of the Executive Council
International Bar Association, Arbitration Committee, former Vice Chair; Investment Treaty Subcommittee, former Chair
Institute for Transnational Arbitration; Executive Committee, Vice-Chair; Advisory Board, Member
World Arbitration and Mediation Review, Co-Editor in Chief
Swiss Arbitration Academy, Advisory Committee Member
Investmentclaims.com, Advisory Board, Member
Global Arbitration Review, Editorial Board, Member
Journal of International Arbitration, Editorial Board, Member
Yearbook on International Investment Law and Policy, Editorial Board, Member
Transnational Disputes Management, Advisory Board, Member
ICC Task Force on Arbitration with States and State entities, Special Drafting Committee, Member
American Law Institute Project on Restatement of US Law on International Commercial Arbitration, Adviser
District of Columbia Bar Association, International Law Section, former Chair; Steering Committee, Member
American Bar Association, Section of International Law and Practice
International Law Association
British Institute for International and Comparative Law
Chartered Institute of Arbitrators, Member
Swiss Arbitration Association
International Arbitration Institute
London Court of International Arbitration, Member
Awards and Recognition
Chambers Global, International Arbitration
Euromoney Experts Guide to the World's Leading Experts in International Commercial Arbitration
Global Counsel Handbook, PLC Dispute Resolution, Leading Lawyers Worldwide
Legal 500 USA, International Arbitration
The Best Lawyers in America
Euromoney's Expert Guide to the Leading US Lawyers – Best of the Best USA American Lawyer's Fab Fifty, up-and-coming litigators under the age of 50
Chambers USA, International Arbitration
Asialaw Leading Lawyers Who’s Who in Public International Law
Who's Who in American Law
Who's Who of Commercial Arbitration
Who's Who of Business Lawyers
Euromoney Guide to Leading Women in Business Law
Benchmark Litigation Top 250 Female Litigators in America
Formerly listed in Global Arbitration Review’s 45 under 45
Washington DC's Top LawyersWashington's Best Lawyers, International Disputes
Selected Publications
"Unlawful or Bad Faith Conduct as a Bar to Claims in Investment Arbitration" in J. Werner et al. (eds.), A Liber Amicorum: Thomas Wälde – Law Beyond Conventional Thought, Cameron May (2009) (co-authored with Petr Polášek)
"The MFN Clause: What are its Limits"? in Arbitration under International Investment Agreements: An analysis of the key procedural, jurisdictional and substantive issues, Oxford University Press (2009) (co-authored with Lee A. Steven)
"The Use of Experts in Investment Treaty Arbitration" in Les Experts:Auxiliaires ou Substituts de Juge? Centre Français de Droit Comparé (2009) (co-authored with Daniel R. Gilbert)
"Claims of Shareholders in International Investment Law" in C. Binder et al. (eds.), International Investment Law, Liber Amicorum Christopher Schreuer, Oxford University Press (2009)
"Confidentiality in Relation to States," ICC International Court of Arbitration Bulletin (Special Supplement) (co-authored with Kristen Young)
"Enforcing Foreign Arbitral Awards in the United States: The Non-Arbitrable Subject Matter Defense," Journal of International Arbitration vol. 25(6) (2008) (co-authored with Hansel T. Pham)
"Foreign Investment and Political Risk: What You Should Know About Investment Protection Treaties (Parts I & II)," Bloomberg European Law Journal, Vol. 2, Nos. 6 & 7, June 2008 & July 2008 (co-authored with Stephen T. Ostrowski)
"Principles of Compensation in Investment Treaty Arbitration," ICSID Review Foreign Investment Law Journal, Vol. 22, No. 1, Spring 2007
"The 2006 Amendments to ICSID's Arbitration Rules," Global Arbitration Review, Vol. 1, Issue 4, August 2006 (co-authored with Erika M. Serran)
"ICSID Annulment," Investment Treaty Law: Current Issues, Vol. 1, BIICL, 2006
"State Responsibility and Attribution: When Is a State Responsible for the Acts of State Enterprises?," International Investment Law and Arbitration: Leading Cases from the ICSID, NAFTA, Bilateral Treaties and Customary International Law, Cameron May, 2005
"ICSID Arbitration: Procedural Review," Transnational Dispute Management, Vol. II, Issue 2, April 2005
"Arbitration Before the International Centre for Settlement of Investment Disputes," 2002 Business Law International, 367, September 2002
"How to Commence an International Arbitration," Practitioner's Guide to International Arbitration and Mediation, Juris Publishing, 2001 (co-authored with Stephen Bond)
"The International Centre for Settlement of Investment Disputes: Responses to Problems and Changing Requirements," Mealey's International Arbitration Report, 1, Vol. 12, November 1997 (co-authored with Carolyn B. Lamm)
"Arbitration Agreements versus Forum Selection Clauses: Legal and Practical Considerations," International Dispute Resolution: The Regulation of Forum Selection [Fourteenth Sokol Colloquium], J.L. Goldsmith, ed. 1997 (co-authored with Charles N. Brower)
"The Effect of Independence of Quebec Upon Treaties and Agreements with the United States of America," The American Review of Canadian Studies, 57, Vol. 27, Spring 1997 (co-authored with Charles N. Brower)
"Enforcing ICSID Arbitration Agreements," ICSID Review Foreign Investment Law Journal, 64, Vol. 11, 1996 (co-authored with Carolyn B. Lamm)
"Recent Decisions Involving Arbitral Proceedings," The International Lawyer, 271, Vol. 30, 1996 (co-authored with Charles N. Brower)
"Revisiting the Federal False Claims Act," National Contracts Management Association Journal, 13, Vol. 26, 1995 (co-authored with Carolyn B. Lamm)
Languages
English
French
Citizenship
United States