Steven Smith

Partner

Steve Smith is a partner in O’Melveny & Myers LLP’s San Francisco office and Chair of the Firm’s International Arbitration practice. He focuses in the arbitration and litigation of complex international commercial and intellectual property disputes in the energy, aerospace, technology and pharmaceutical sectors. In his 24 years of private practice, Steve has handled matters for and against sovereign entities from the Middle East, Europe, Asia, Latin America and Africa. In addition to serving as counsel in arbitrations administered by a variety of arbitral institutions throughout the world, he also has served as an arbitrator in International Chamber of Commerce (ICC) and UNCITRAL arbitrations.

Recognized in many notable lawyer directories, Steve is highly recommended nationally by Chambers and Partners USA 2007 as “a truly outstanding advocate whose written product and oral advocacy simply astound.” For the past years, he has been one of only 15 lawyers in San Francisco who were “recommended” in the Global Counsel Handbook on Dispute Resolution: The Law and Leading Lawyers Worldwide, and Steve is one of only a handful of leading counsel for arbitration work identified by Who’s Who Legal California, which characterized Steve as an “outstanding counsel,” known “for his commercial and IP dispute work.” Steve is the recipient of the 2008 California Lawyer of the Year (CLAY) Award for Alternative Dispute Resolution.

Steve holds a B.A. from the University of Pennsylvania, graduate degrees in history and law from Cambridge University and a J.D. from the University of California, Berkeley, where he was founding editor-in-chief of the school’s international law journal.

Illustrative Professional Experience

International Arbitration

• Lead counsel for Duke Energy Corporation in a major UNCITRAL arbitration in London brought by a foreign state-owned energy company seeking over $650 million in damages on contractual claims governed by English law. After five separate multi-week hearings, Duke defeated claimant’s damages claims in their entirety and was awarded a near total recovery of approximately $25 million.
• Lead counsel for U.S.-investor controlled Mexican trust in ICC arbitration involving a dispute between joint venture partners that has derailed their $250 million resort development project in Mexico. The liability phase of the arbitration concluded with an award in our client’s favor, and the ensuing damages phase culminated in an evidentiary hearing in New York. In Spring 2007, the parties entered into a confidential settlement agreement just prior to the issuance of the Tribunal’s award on quantum. As a result, our client is now free to take the project forward alone.
• Co-lead counsel for Lockheed Martin Corporation in its successful defense of an ICC arbitration brought by the Republic of Korea to recover approximately $45 million for alleged breach of contract, fraud, and unjust enrichment in connection with a contract to supply military aircraft. The Tribunal cleared Lockheed Martin of any wrongdoing and awarded it a substantial portion of its attorneys fees and costs.
• Lead counsel for U.S. pharmaceutical company in pending arbitration in Zurich, Switzerland, under the rules of German Institute of Arbitration (DIS), in which a German company is seeking to terminate a drug development and license agreement between the parties.
• Lead counsel for U.S. chemical company in ICC arbitration in which Mexican joint venture partner sought indemnification for JV’s exposure to criminal and civil antitrust liability in North America and Europe, allegedly resulting from our client’s sales activities on behalf of the JV. After extensive briefing and a two-day hearing on our client’s application for summary disposition, the Tribunal issued a partial award dismissing all but two of the Claimants’ fifteen claims, including those seeking the lion’s share of Claimants’ damages. The case quickly settled without any payment from our client.
• Co-lead counsel for Cargill in NAFTA Chapter 11 arbitration against the Government of Mexico under ICSID’s Additional Facility Rules. Cargill sought substantial damages on claims of expropriation and denial of national treatment, among others, all arising from a discriminatory tax measure designed to promote Mexico’s sugar industry.
• Lead counsel for Mitsubishi Corporation in an ICC arbitration in Los Angeles, California arising from the parties’ license and distribution agreements. After extensive evidentiary hearings, the Tribunal issued a Final Award in Mitsubishi’s favor, dismissing claimant’s trade secret and related claims seeking approximately $40 million in damages, and awarding Mitsubishi a broad injunction and over $8 million in damages, attorneys fees and costs on Mitsubishi’s counterclaims for copyright infringement and breach of contract.
• Lead counsel for Occidental Petroleum Corporation and an affiliated company in an arbitration in London under the Rules of the International Center for Dispute Resolution concerning disputes arising from the affiliate’s sale of assets in Nigeria. After an evidentiary hearing in Madrid, Spain, the Tribunal issued an award in Oxy’s favor dismissing all of the claimant’s claims.
• Lead counsel for HBO Asia in an ICC arbitration against its Taiwanese distributor involving contractual disputes and damages of more than $26 million, as well as separate judicial and regulatory proceedings in Taiwan. After HBO Asia obtained an expedited Partial Award determining that it had lawfully terminated the parties’ distribution agreement, the arbitration and related proceedings settled favorably for our client.
• Lead counsel for a Japanese manufacturer in Zimmern v. Mitsui Seiki Kogyo Co. Ltd., an ICC arbitration in Paris, France in which Mitsui Seiki defeated patent and trade secret claims seeking $10 million in damages and an injunction to close down one of the company’s three main businesses.
• Lead counsel for a Japanese corporation in J. D. Lincoln, Inc. v. Nippon Steel Chemical Co., Ltd., an arbitration under the International Rules of the American Arbitration Association concerning an $18 million claim for breach of a contract to supply manufactured items to the Japanese market. The matter settled favorably prior to the hearing.
• Lead counsel for a Japanese chemical company in federal court litigation and related arbitration before the Japan Commercial Arbitration Association in Osaka, concerning a patent-license dispute with a U.S. company. The Japanese company was ultimately successful in enforcing its patent rights, obtaining both a court enforced consent decree against future use of the patented technology and the payment of substantial back royalties.
• Lead counsel for a U.S. energy company concerning disputes with Pertamina, the Indonesian state-owned energy company, arising from Pertamina’s failure to meet its U.S. dollar-denominated payment obligations for geothermal energy in the aftermath of the Asian financial crisis and the devaluation of the Indonesian Rupiah.
• Counsel for U.S. commodities trader in two ad hoc arbitrations in Stockholm against a Russian state-owned entity involving a series of claims under a uranium-supply contract. Our client prevailed on all claims in both arbitrations, establishing its entitlement to purchase optional quantities of enriched uranium at contract prices well below the market prices demanded by the seller, thereby eliminating an $800 million exposure.
• Counsel for a French electronics manufacturer in a major ICC arbitration, Thomson-CSF v. Gould Inc., involving various disputes with an American subcontractor on a $4.5 billion military procurement program, including the subcontractor’s claim for a $114 million equitable adjustment in the fixed contract price. Thomson-CSF defeated that claim and obtained a $21 million award in its favor.
• Counsel for a major oil industry construction and services firm in arbitration before the U.S.-Iran Claims Tribunal under the UNCITRAL Arbitration Rules against the Government of Iran and the National Iranian Oil Company for expropriation of private property and breach of state contract.
• Lead counsel for an English computer company in an ICC arbitration involving a dispute under a contract for the development of network computers.
• Sole arbitrator in an ICC arbitration involving a complex dispute between joint venture partners over the financing and development of their U.S. business.
• Sole arbitrator in ICC arbitration between Italian and U.S. surfing apparel companies arising from the collapse of their American-joint venture.
• Sole arbitrator in ICC arbitration between U.S. and Canadian companies concerning a dispute under their exclusive distribution and marketing agreement for a dietary supplement.
• Sole arbitrator in an ICC arbitration between Japanese and American biotechnology companies concerning a dispute under a license agreement.
• Sole arbitrator in UNCITRAL arbitration of patent license dispute between a California company and a Japanese-American joint venture.
• Party-appointed arbitrator on three-member panel in ICC arbitration involving dispute under agreement to commercialize biotechnology patents relating to a method to optically read the human genome.
  

International Litigation

• Lead counsel for a global engineering and construction company, an Italian energy company and their affiliated project company in a dispute with a South American state over a 30-year water and sewage concession for a large municipality. The dispute gave rise to litigation in the U.S., in which we succeeded in obtaining a court order blocking the host country from drawing down on a letter of credit that served as a performance bond under the parties’ concession contract. Once the blocking order was in place, the project company initiated dispute resolution under the concession contract and declared force majeure with respect to certain of its infrastructure expansion obligations due to the absence of available financing. The dispute was resolved through a transaction in which the shareholders sold the project company with the consent of the host country’s government.
• Co-lead counsel for Duke Energy Corporation in pending federal court litigation in Houston, Texas against Citrus Trading Corp. over Duke’s termination of the parties’ long-term contract for the purchase by Citrus of Algerian LNG. Duke terminated the parties’ contract for Citrus’ alleged breach, and Citrus has counterclaimed for damages of approximately $200 million on the ground that the termination was allegedly unlawful.
• Lead counsel for Dainippon Screen Manufacturing Company and affiliates in patent infringement litigation against Scitex Corporation, an Israeli Company, involving six patents concerning three different technologies in the graphic arts and digital publishing fields. The case, which was approaching trial in federal court, was submitted to mediation/arbitration before the WIPO International Arbitration Center in Geneva, Switzerland. (It was the Center’s first matter). The mediation/arbitration led to a settlement favorable to Dainippon Screen.
• Counsel for the Kuwaiti Government in Computer Firmware Systems, Inc. v. The State of Kuwait, a case in which Kuwait defeated claims arising from an alleged program to diversify the country’s economy by establishing a computer industry there.
• Lead counsel for Taiwanese bicycle components manufacturer in its successful defense against claims for patent, trademark, and trade dress infringement.
• Co-lead counsel for the Royal Automobile Club in London and related English companies and their directors in the successful defense of a class action lawsuit in Los Angeles superior court seeking $90 million in damages on claims arising from the £450 million sale of a related motoring services company.
• Lead counsel in successful defense of the U.S. subsidiary of a Korean conglomerate in a federal court action brought by a Malaysian company for breach of contract.
• Counsel for 10 motion picture studios and their trade association in antitrust action brought by would-be American dual-deck VCR manufacturer against Japanese and Korean electronics industries and U.S. motion picture industry. Go-Video v. Motion Picture Association of America, et al.
• Counsel for defendant oil company in Clayco Petroleum Corp. v. Occidental Petroleum Corp. et al., (9th Cir. 1983), cert. denied 464 U.S. 1040 (1984), a case establishing that there is no Foreign Corrupt Practices Act exception to the Act of State doctrine.

Regulatory Proceedings

• Lead counsel for NEC Corporation in ITC proceeding brought by Rambus seeking an order excluding, among other things, certain SDRAMs and microprocessors from entering the United States.
• Counsel for Intervenor Advanced Micro Devices in ITC proceeding in which Intel sought an order to exclude Taiwanese computers using AMD microprocessors from entering the United States on the ground that they infringed an Intel patent. The ITC terminated the proceeding against Intel with a ruling in AMD’s favor.
• Counsel for IBM in ITC proceeding based on allegations that certain IBM disk drives infringed patents owned by Conner Peripherals. The matter successfully settled as part of a global settlement.
  

Professional Activities

Chair, California State Bar, International Law Section (1999-2000)
Chair, ICC’s Arbitration Committee for the Northwest U.S. (2002 - present)
Vice-Chair, International Dispute Resolution Committee of the ABA’s Section of International Law and Practice (2001 – 2004; 2006 – present)
President, Northern California International Arbitration Club (2005 – 2007)
Member, ICC Commission on Arbitration (2006 - present)
Honorary Member, Commercial Bar Association of London (COMBAR) (2004 - present)
Co-Chair, 2003 Annual Meeting of the ABA’s Section of International Law and Practice; 2000 International Law Weekend, on “International Arbitration in Asia: Drafting Effective Provisions, Managing the Process, and Enforcing Awards;” 1999 International Law Weekend, which focused on “Lessons From The Asian Financial Crisis: Managing The Legal Fallout and Anticipating Future Crises” (San Francisco, California, June 1999); 1997 International Law Weekend, which focused on information technology law in the Asia-Pacific Region (San Francisco, California, August 1997)
Founder and Editor-in-Chief, The International Tax & Business Lawyer (renamed The Berkeley Journal of International Law) (1983)
Member, Board of Overseers, Berkeley Journal of International Law (2003- present)
Author, “Enforcement of International Arbitral Awards,” a chapter in the treatise entitled Practitioner’s Guide to International Arbitration and Mediation; “International Commercial Arbitration in Japan,” a chapter in the Practitioner’s Guide to International Arbitration and Mediation; “Advocacy and Tactics in International Commercial Arbitration,” 5 California International Practitioner 64 (1995); “Badger Revisited: Implications for the Implementation of the Transfer of Technology Code,” 1 Int’l. Tax & Bus. Law. 117 (1983); “The London Court of International Arbitration and English Arbitration Reform” in ILEX Monograph #7: Report of the Delegation to International Arbitration Centers: An Update on Commercial Dispute Resolution Developments in London and Paris; Numerous papers for various programs and conferences
Lecturer, Lectured in courses on international dispute resolution and international business at numerous law and business schools, including Stanford Law School, Boalt Hall School of Law at U.C. Berkeley and the Anderson School of Business at U.C.L.A.
Speaker, Speaks frequently on international dispute resolution issues at conferences all over the world, including: ICC Arbitration Workshop (San Francisco, California, June 2007); Arbitrating the Mega Case (Los Angeles, California, March 2007); 2003 Conference on ICC International Dispute Resolution, Insights into Practice and Procedure (Scottsdale, Arizona, February 2003); 17th Annual Joint Symposium of School of International Arbitration and ICC Institute of World Business Law on “Control and Expedition of Procedure by Arbitrators” (London, England, March 2002); 1998 International Law Weekend on “International Arbitration Of Intellectual Property Disputes Under The New ICC Rules” (San Francisco, California, July 1998); South Korean Ministry of Justice and Korea Private International Law Association Conference on “Recent Developments in International Litigation” (Seoul, South Korea, November 1996); Japanese Institute of International Business Law (Kokusai Shoji-Ho Kenkyusho), Conference on “Representing Japanese Companies in Litigation and Arbitration in the United States” (Tokyo, Japan, January 1996)