June/July 2012

A precedent setter

Dominique Gibbens | Partner at Fasken Martineau

By Eavan Moore

“I love what I do,” says Dominique Gibbens. In her 20-odd years of litigation and dispute resolution, Gibbens has amassed experience in a range of fields and legal systems, including the petrochemicals and mining industries. Earlier this year, she helped First Quantum Minerals (FQM) reach a US$1.25 billion arbitration settlement in its disputes with the Democratic Republic of the Congo (DRC) and Kazakh miner ENRC. For the industry, it was a newsmaking precedent; for her, it was another opportunity to learn.

“This was a fascinating case of tremendous breadth,” explains Gibbens. “I learned a lot from the experience of putting together the proceedings and the strategy.” Fasken Martineau partner Geoffrey Cowper brought her to the team handling the case in 2010, when FQM had already filed International Chamber of Commerce claims against the DRC following the cancellation of the joint venture contract for the Kolwezi tailings project. The DRC had then withdrawn permits on two other mines, leading to a second filing before the International Centre for Settlement of Investment Disputes (ICSID), an arbitration institution that is a part of the World Bank Group. Gibbens led the team working on ICSID proceedings. Meanwhile, the DRC had claimed damages in a Congolese court, and ENRC-affiliated entities had quickly acquired the confiscated Kolwezi project, attracting separate lawsuits in the British Virgin Islands.

In January 2012, ENRC agreed to purchase FQM’s interest in all three Congo properties and certain other assets for US$1.25 billion, with all legal claims dropped. Gibbens can think of no similar dispute settled for such a large amount. She attributes this successful outcome in part to an unusual objective on FQM’s part: although such cases typically revolve around the recovery of damages, FQM wanted its properties back and the legal team’s strategy kept that objective front and centre. The pressure resulting from the overall strategy, including from very favourable provisional measures obtained in the ICSID proceedings, contributed to reaching the transaction that addressed the fate of FQM’s assets.

Cases like these are fun for Gibbens, not only because they pose a professional challenge, but because they introduce her to unfamiliar topics. “When you’re a litigator, you handle such varied subject matter,” she observes. “It’s so interesting to learn about new technical issues that are unrelated to the law.” To work on FQM’s case, she needed to understand its operations, finding herself studying the mining process used to make a low-grade copper project profitable. For Gibbens, this practical side of the work, and the opportunity to learn from other jurisdictions, makes working with resource companies a pleasure.

A downside to complex international arbitration that will be familiar to lawyers and miners alike is managing the work-life balance. This remains a challenge for women in a field which has otherwise made huge strides, she believes, and it explains why firms find it difficult to retain their female lawyers for the long run. “Trying to manage family and professional demands is an issue for males too, but I think it’s still a reality that it’s more difficult on women,” she points out. With two teenagers and a demanding travel schedule, organization is a must. But she has no plans to stop now. “I feel privileged to have been involved in some of the cases that I’ve done,” remarks Gibbens. “And I feel that there are going to be many more to come.”

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