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Banifatemi, Yas

Yas Banifatemi

Partner
Yas Banifatemi is a partner in Shearman & Sterling’s International Arbitration Group and leads the firm’s Public International Law Practice. She is also a member of the Firm’s 9-member Policy Committee. She advises and represents States, State-owned entities and companies on both public international law and international arbitration issues. She has acted as counsel and arbitrator in arbitration cases under the ICSID, UNCITRAL, ICC, LCIA, SCC, CRCICA and Swiss Arbitration Rules, with particular focus on investment protection, oil & gas and general commercial matters.

Yas Banifatemi has been praised as being a “star performer,” a “brilliant lawyer with a sharp intellect” and a “prominent figure in international arbitration,” also “having a considerable presence in public international law” in Chambers Global. Clients also commented on the “clarity of her opinions,” describing her as “one of the best technicians in the international investment arbitration field”, “extremely effective”, “incredibly impressive all round” and a “reliable and robust advocate” having a “thorough understanding of the law she practices.” She appeared in the “45 Under 45” feature of American Lawyer’s January 2011 issue, a ranking of “The Best and the Brightest” female lawyers under 45, and in the “45 Under 45” feature of Global Arbitration Review’s August 2011 issue, a global ranking of the leading figures of the international arbitration bar under 45.

Selected Experience

  • Five gas importers as Respondents in SCC and UNCITRAL arbitrations in Stockholm initiated by an upstream supplier. The disputes arise from a gas price revision clause in long-term supply contracts. Swedish law applies.
  • The majority shareholders in the former Yukos Oil Company as Claimants in a series of three arbitrations against the Russian Federation in relation to the expropriation of their investment in the company. The claims were brought under the Energy Charter Treaty, a multilateral treaty governing trade and investment in the energy sector. The arbitrations were conducted in accordance with the UNCITRAL Arbitration Rules and were administered by the Permanent Court of Arbitration (PCA) in The Hague. In an Interim Award of November 20, 2009, the Arbitral Tribunal decided that it had jurisdiction over the dispute and that the claims were admissible. In a Final Award rendered on July 18, 2014, the Arbitral Tribunal ordered the Russian Federation to pay over USD 50 billion in damages to our clients, which makes this the largest arbitral award ever rendered by an arbitral tribunal. The Tribunal also ordered the Respondent to reimburse to our clients 75% of the legal fees they had incurred in these proceedings, as well as 100% of the arbitration costs.
  • Ukraine as Respondent in an ICSID arbitration initiated by Emergofin B.V. and Velbay Holdings Ltd. under the Netherlands-Ukraine bilateral investment treaty (ICSID Case No. ARB/16/35). The dispute relates to an aluminium and alumina production company.
  • Sonatrach as Respondent in an ICC arbitration in Geneva initiated by Total Algérie SAS and Repsol Exploración Argelia. The dispute is in relation to the interpretation of contractual provisions of a production sharing agreement regarding windfall profit tax and alleged tax stabilization provisions. Over USD 400 million is at stake. Algerian law applies.
  • The Republic of Lithuania as Respondent in an ICSID arbitration brought by Veolia Environnement S.A. and others in relation to district heating and power generation systems in Lithuania (ICSID Case No. ARB/16/3). The claims are brought under the Lithuania-France bilateral investment treaty. 
  • A European energy company, seller in a long-term gas supply agreement, as Respondent in a gas price review arbitration brought by another European energy company (as buyer). Algerian law applies. Over USD 1.1 billion is at stake.
  • A European life sciences company as Respondent in an arbitration brought by a European chemical company seeking indemnification under a Share Purchase Agreement. The law of the Claimant’s State applies.
  • Latin American investment companies in a dispute, subject to ICC arbitration in London, against multiple Latin American investment funds. The dispute relates to the revision and breach of a settlement agreement that was previously entered into by the parties in relation to multiple claims brought in several litigation proceedings. Brazilian law applies.
  • The Asian founder and the majority shareholder of a NASDAQ listed company as Respondents in an UNCITRAL arbitration administered by the HKIAC in Hong Kong. The dispute arises from a shareholders agreement. New York law governs.
  • A European energy company and its Central European affiliate as Respondents in an ICC arbitration in Paris initiated by a Southeastern Europe energy company. The dispute arose from an agreement for the privatization of a State-owned electricity company. The law of the Claimant’s State applied.

Publications

Yas Banifatemi has written numerous articles on international arbitration and international law. She also regularly appears as a speaker, particularly on issues of investment arbitration and international law. Her publications include:

  • Jurisdiction in Investment Arbitration, IAI Series on International Arbitration No. 8 (Editor, Juris Publishing, forthcoming)
  • Precedent in International Arbitration, IAI Series on International Arbitration No. 5 (Editor, Juris Publishing, 2008)
  • Annulment of ICSID Awards, IAI Series on International Arbitration No. 1 (Co-editor, Juris Publishing, 2004)
  • “Russie – Affaire Ioukos - Tribunal de Première Instance de La Haye, jugement d’annulation du 20 avril 2016 dans l’affaire Ioukos : le régime de l’application provisoire du Traité sur la Charte de l’Energie de 1994,” 120(3) Rev. crit. DIP 629 (2016)
  • “The Long March towards a Jurisprudence Constante on the Notion of Investment, Salini v. Morocco, ICSID Case No ARB/00/4,” in Building International Investment Law – The First 50 Years of ICSID 97 (M. Kinnear et al. eds., Kluwer, 2015) (with E. Gaillard)
  • “Compétence et recevabilité en droit des investissements” in Droit international des investissements et arbitrage transnational (C. Leben ed., Pedone, 2015)
  • The Impact of Corruption on ‘Gateway Issues’ of Arbitrability, Jurisdiction, Admissibility and Procedural Issues,” in Addressing Issues of Corruption in International Commercial and Investment Arbitration 16 (D. Baizeau and R. Kreindler eds., ICC Publication No. 768E, 2015)
  • France,” in Commentaries on Selected Model International Investment Treaties (C. Brown and D. Kirshnan eds., 2013) (with A. von Walter)
  • “Consistency in the interpretation of substantive investment rules: is it achievable?,” in Prospects in International Investment Law and Policy, Proceedings of the World Trade Forum 2011, at 200 (R. Echandi and P. Sauvé eds., Cambridge University Press, 2013)
  • “La regla de prioridad: ¿Una prioridad en América Latina?,” in Cuestiones claves del arbitraje internacional 81 (E. Gaillard and D. Fernández Arroyo eds., 2013)
  • “Unresolved Issues in Investment Arbitration,” in Modern Law for Global Commerce – Proceedings of the Congress of the United Nations Commission on International Trade Law held on the Occasion of the Fortieth Session of the Commission, Vienna, 9-12 July 2007, at 416 (United Nations publication No. V.09-8930, 2011)
  • “Provisional Application of the Energy Charter Treaty: The Negotiating History of Article 45,” in Energy Dispute Resolution: Investment Protection, Transit and the Energy Charter Treaty 191 (G. Coop ed., Juris, 2011)
  • “The Law Applicable in Investment Treaty Arbitration,” in Arbitration under International Investment Agreements 191 (K. Yannaca-Small ed., Oxford University Press, 2010)
  • “Mapping the Future of Investment Treaty Arbitration as a System of Law – Remarks,” in American Society of International Law - Proceedings of the 103rd Annual ASIL Meeting 323 (2010)
  • “Defending Investment Treaty Awards: Is There an ICSID Advantage?,” in 50 Years of the New York Convention, ICCA Congress Series No. 14, at 318 (2009)
  • “The Emerging Jurisprudence on the Most-Favoured-Nation Treatment in Investment Arbitration,” in Investment Treaty Law: Current Issues III, at 241 (A. Bjorklund, I. Laird and S. Ripinsky eds., BIICL, 2009)
  • “Negative Effect of Competence-Competence: The Rule of Priority in Favour of the Arbitrators,” in Enforcement of Arbitration Agreements and International Arbitral Awards – The New York Convention in Practice 257 (E. Gaillard and D. Di Pietro eds., Cameron May, 2008) (with E. Gaillard)
  • “Le ‘droit au juge’ et l’arbitrage commercial international,” in Libertés, Justice, Tolérance – Mélanges en l'honneur du Doyen Gérard Cohen-Jonathan (Bruylant ed., 2004)
  • “Introductory note to ICSID: Salini Costruttori SpA & Italstrade SpA v. Kingdom of Morocco (Proceeding on Jurisdiction),” 42 International Legal Materials 606 (2003) (with E. Gaillard)
  • “The meaning of ‘and’ in Article 42(1), second sentence, of the Washington Convention – The role of international law in the ICSID choice of law process,” 18 ICSID Review 375 (2003) (with E. Gaillard)
  • “Le nouveau droit de l’arbitrage interne aux Etats-Unis (Revised Uniform Arbitration Act de 2000): La persistance des particularismes,” 2003(4) Revue de l’arbitrage 1195
  • La lutte contre le financement du terrorisme international,” 2002 Annuaire Français de Droit International 103
  • “La restitution des avoirs juifs en déshérence sous l’angle du droit international public,” 1998 Annuaire Français de Droit International 76
  • Collaboration with Emmanuel Gaillard on his International Arbitration column in the New York Law Journal:
    • “‘Biwater,’ Classic Investment Bases: Input, Risk, Duration” (Dec. 31, 2008)
    • “Court-ordered Measures in Arbitral Discovery” (Dec. 13, 2007)
    • “The Representations of International Arbitration” (Oct. 4, 2007)
    • “The Denunciation of the ICSID Convention” (June 26, 2007)
    • “Extent of Court Review of Public Policy” (Apr. 5, 2007)
    • “A Black Year for ICSID” (Mar. 1, 2007)
    • “Autonomy of International Arbitration” (Dec. 14, 2006)
    • “ICC Pre-Arbitral Referee: A Procedure Into Its Stride” (Oct. 5, 2006)
    • “Switzerland Says Lis Pendens Not Applicable to Arbitration” (Aug. 7, 2006)
    • “Amended Arbitration Rules Now in Effect for Investment Disputes” (June 1, 2006)
    • “Prima Facie Review of Existence, Validity of Arbitration Agreement” (Dec. 1, 2005)
    • “Treaty-Based Jurisdiction: Broad Dispute Resolution Clauses” (Oct. 6, 2005)
    • “Establishing Jurisdiction Through a Most-Favored-Nation Clause” (June 2, 2005)
    • “Energy Charter Treaty: International Centre for Settlement Decision” (Apr. 7, 2005)
    • “The IBA Guidelines on Conflicts of Interest in International Arbitration” (June 3, 2004) “Arbitration-Agreement Recognition: N.Y. Convention, National Law” (Dec. 8, 2003)
    • “‘KBC v. Pertamina’: Landmark Decision on Anti-Suit Injunctions” (Oct. 2, 2003)
    • “The First Association of Southeast Asian Nations Agreement Award” (Aug. 7, 2003)
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Education

  • Panthéon-Assas University (Paris II), Ph.D. in International Law, 1997 (with highest honors; Dissertation honored with a prize at the Concours de Prix de Thèses of Panthéon-Assas University (Paris II))
  • Harvard Law School, LL.M., 1997

Languages

Nationality

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