Herbert Smith scored a historic victory for Eurotunnel but also law firms seeking to do advocacy, in the first big international arbitration ruling against western governments.
The decision, apart from ruling against the British and French governments to the tune of £30m, was also the first major international arbitration to be made public where solicitors opposed to barristers undertook the advocacy.
The five-judge panel, chaired by Matrix chambers’ Professor James Crawford SC and included Lord Millet, ruled that the two governments were liable for the disruption and security expenses that Eurotunnel suffered due to the early-2000 security fiasco which saw thousands of asylum seekers from Sangatte hostel invade the cross-Channel tunnel.
The long-running arbitration, which kicked-off in December 2003, came about through an arbitration provision contained in the Treaty and the Concession Agreement which Eurotunnel derives its rights to operate the tunnel.
Though all five judges came to the same conclusion that Eurotunnel had a right to damages Lord Millet dissented as far as the UK government was concerned.
He found that the UK were responsible under the concession agreement for occasional incursion but not for a serious breakdown of public order.
The claimant instructed 13 lawyers led by litigation partners Matthew Weiniger and Emmanuelle Cabrol of Herbert Smith, with Essex Court chambers’ Professor Christopher Greenwood CMG QC and advocat Jean-Pierre Boivin of French firm Cabinet Boivin.
For the UK government, David Anderson QC of Brick Court, with Samuel Wordsworth and Jessica Wells both of Essex Court were instructed by the department for transport solicitors
While for France, the former chair of the International Law Commission of the United Nations Alain Pellet was instructed by the Ministry of Foreign affairs’ legal division.