David Herlihy
David Herlihy focuses on complex international commercial arbitration and investment treaty arbitration, as well as broader issues of public international law.

Bio

Chambers UK and The Legal 500 identify Mr. Herlihy as a leading individual in his field, describing him as a “fantastic arbitration lawyer,” “a powerful and eloquent advocate,” “amazingly skilled” and “frankly outstanding.” His representations include acting for:

  • Vodafone International Holdings B.V. in pending investment treaty proceedings against the Republic of India valued at several billion U.S. dollars;
  • the Republic of Cyprus in its defence of pending ICSID claims arising out of the eurozone financial crisis involving claims exceeding €1 billion;
  • the Slovak Republic in its successful defence of a bilateral investment treaty dispute involving claims in excess of €1 billion (lead advocate), a result named as one of The American Lawyer’s “Top Five Defence Wins” in its global survey of international arbitration for 2011-2013;
  • Global Telecom in an investment treaty dispute against Algeria concerning the treatment of its subsidiary Djezzy resulting in a settlement and joint venture agreement under which Skadden’s client received net cash payments of US$3.8 billion;
  • two investors in pending ICSID claims under the Energy Charter Treaty arising out of changes to Spanish law in the renewable energy sector;;
  • the Republic of South Sudan in its oil sector negotiations and related international law issues following its secession from the Republic of Sudan, as well as in ICSID proceedings brought by Sudapet Co. Ltd. concerning the disputed ownership of significant oil field interests (disputed amount exceeding US$1 billion). Legal Business named Skadden as its 2017 International Arbitration Team of the Year for the defence of this case;
  • the Republic of South Sudan in the recovery of substantial sums representing the proceeds of shipments of crude oil misappropriated by the Republic of Sudan. For this work, Skadden was commended by the Financial Times in its 2013 “Innovative Lawyers” report for Europe and the firm also won the African Legal Awards’ Dispute Resolution Team of the Year award in 2013;
  • investors Ron Fuchs and Ioannis Kardassopoulos in ICSID arbitration proceedings against Georgia under the Energy Charter Treaty and two bilateral investment treaties, resulting in a damages award of US$100 million and a landmark precedent concerning the provisional application of that treaty. This matter received a Global Arbitration Review award in 2012;
  • foreign investors overseeing enforcement of an ICSID award against a state’s commercial assets worldwide;
  • Bidzina Ivanishvili in an investment treaty dispute against Georgia under the ICSID Rules;
  • a Singaporean investor in ICSID proceedings against a Southeast Asian government involving claims valued at more than US$300 million, commenced under an investment contract and the 1987 ASEAN Investment Agreement;
  • foreign investors in annulment proceedings under Article 52 of the ICSID Convention and revision proceedings under Article 51 of the ICSID Convention;
  • an EU Member State in defence of infringement proceedings commenced by the European Commission under Article 258 of the Treaty on the Functioning of the European Union;
  • a Spanish renewable energy company in ICC arbitration proceedings seated in Madrid and governed by Spanish law;
  • an English company in a U.K. High Court dispute concerning a European water concession;
  • a leading Dutch Internet technology company in an ICDR arbitration involving claims by a former licensee exceeding US$4 billion;
  • a joint venture partner in an LCIA dispute under a shareholders’ agreement involving claims in excess of US$1 billion;
  • an applicant in proceedings before the European Court of Human Rights;
  • foreign investors in a shareholders’ dispute involving a Russian company, litigated in the High Court of Justice of the British Virgin Islands;
  • a U.S. company in an ICC arbitration defending claims of alleged monopolization and abuse of dominance under the Sherman Act and the EC Treaty;
  • a Swiss company in an ICC arbitration dispute against an Egyptian distributor, involving claims of more than US$1 billion;
  • a foreign investor facing threatened expropriation in Zimbabwe;
  • a Brazilian multimedia company in an ICC arbitration arising out of a contractual dispute with a Venezuelan company;
  • a U.S. energy company in an ICC arbitration arising out of a joint venture dispute with a Korean company;
  • a Mexican telecommunications company in a shareholders’ dispute under the AAA International Arbitration Rules; and
  • a Trinidad liquefied natural gas provider in an arbitration under the AAA International Arbitration Rules arising out of a dispute with a Luxembourg company.

Mr. Herlihy also acts as counsel in court proceedings arising out of international arbitrations, including applications for interim injunctions under the Arbitration Act 1996 and anti-suit injunctions in the U.S. federal courts. He is also experienced in litigating high-value international disputes before the English High Court and the Courts of the British Virgin Islands, often involving novel issues of conflicts of laws and forum non conveniens. Examples of these cases include Sibir Energy v. Roman Abramovich, Sibneft & Ors. (High Court, BVI) and Kolden Holdings Ltd v. Rodette Commerce Ltd and Another (High Court, England & Wales). In addition, he has advised on a variety of dispute resolution issues in the U.S., England and internationally, including potential claims under the European Convention on Human Rights and the treaty establishing the Common Market for Eastern and Southern Africa. Prior to joining Skadden, Mr. Herlihy held a judicial clerkship at the Supreme Court of Ireland (1996-1998).

Chambers UK reports that Mr. Herlihy is “an outstanding talent,” “nothing but exceptional” and “a strong practitioner with a great reputation.” He also is recognised for his track record in public international law in both Chambers UK and The Legal 500, which has reported that he “demonstrates great flair in his analysis of complex treaty law issues.” Global Arbitration Review recognised Mr. Herlihy’s successful representation of two foreign investors against Georgia as a “triumph,” which won Skadden the title of Most Impressive Large Arbitration Practice of 2011. The Financial Times gave the same case a “Standout” ranking in its Innovative Lawyers Awards 2012. Mr. Herlihy is also recognised in Who’s Who Legal and Who’s Who Legal Future Leaders in Arbitration 2017. He represents Ireland on the ICC Commission on Commercial Law and Practice, as well as the ICC Task Force on Arbitration Involving States or State Entities. Mr. Herlihy also is a member of the Legal Advisory Task Force to the Energy Charter Secretariat. He has served as a guest lecturer at the World Trade Institute and the London School of Economics on the subject of international investment law.


Presentations

  • “The 2009 ASEAN Investment Agreement,” Presentation to the British Institute for International and Comparative Law (2012)
  • “Remedies in Investor-State Dispute Settlement,” Presentation to the World Trade Institute (2011)
  • “Quantifying Loss In Investment Treaty Arbitration: Counsel’s Perspective,” Presentation to the British Institute for International and Comparative Law (2011)
  • “Third-Party Funding in Arbitration,” Presentation to the C-5 Investment Treaty Conference (2010)
  • "Resolving Disputes Under Bilateral Investment Treaties: How the New Face of Investor-State Arbitration Creates a New Generation of Jurisdictional Defenses," Presented to the Canadian Bar Association’s Fourth Annual International Commercial Arbitration Conference (2004)

Credentials

Education

  • LL.M., New York University School of Law, (John F. Kennedy Memorial Scholar)
  • B.C.L., The National University of Ireland, (First Class Honours, College Scholar)

Admissions

  • Solicitor Advocate, England & Wales
  • New York

Languages

  • French
  • Spanish

David Herlihy

Partner, International Litigation and Arbitration
david.herlihy@skadden.com