Between 1999 and 2002, the UK and French governments refused to take responsibility for causing chaos to Eurotunnel’s train services. Find out what happened, first hand, from recently qualified Cathy-Ann Davies, when one company took on two governments.

There are times when geopolitics, business and the law meet head-on, taking legal professionals into new and uncharted territory. To find yourself as a key team member on such a case in your second seat is a dream scenario for most legal trainees. That is precisely what happened to Cathy-Ann Davies.

The case in question was the long-running dispute between Eurotunnel and the governments of France and the UK over the events surrounding the Sangatte hostel for refugees in Northern France. By the time Herbert Smith secured an arbitration ruling in Eurotunnel’s favour in January 2007, the row had rumbled on for eight years and broken new ground in public international law.

“It was one of the most politically high-profile, commercially-sensitive and legally complex cases of recent times,” says Matthew Weiniger, the Herbert Smith partner leading the team. “While investors had brought arbitration cases against states before, no-one had ever tried it against two governments at once. And the claimant was the owner of the world’s biggest private investment in public infrastructure – the Channel Tunnel.”

The French government’s reaction to the increasing numbers of refugees seeking access to the UK from France was to build the Sangatte hostel, close to the entrance of the tunnel. This opened in 1999 and for over the next three years, Eurotunnel’s business faced regular disruption as refugees broke into the French side of the tunnel. Eurotunnel had to suspend services on each occasion.

“Eurotunnel’s business model depends on running traffic through the tunnel,” says Matthew. “But every time one of the refugees managed to get into the tunnel, the company had to close the terminal and stop the traffic. And if the trains are not running, Eurotunnel makes no money.”

By 2002, Eurotunnel’s business had been severely damaged. At this point the UK and French governments worked out a compromise and the Sangatte hostel was closed, but this did nothing to help Eurotunnel recover the money it had lost. So in December 2003 it asked Herbert Smith to help it launch an arbitration against the French and UK governments.

A case on this scale required a substantial cross-border team, including two partners, two associates and two trainees in London, plus two associates and two stagières (trainees) in Paris. The firm also engaged Christopher Greenwood, a professor at London School of Economics specialising in public international law. The legal complexity was compounded by the need to work in two languages and three legal systems – public international law, English common law and French civil law.

Cathy-Ann was one of the London trainees on the team and, for her, the experience confirmed that contentious work was what she wanted to do. “Before joining the firm I had thought about being a barrister, and did some mini-pupillages,” she recalls. “Then my vacation scheme with Herbert Smith convinced me that I wanted to litigate here.”

The Eurotunnel case was her first experience of a major international dispute. “I really enjoyed working on such a high-profile case with an international team,” she says.

“My degree in French and Italian came in handy for reviewing documentation and working with colleagues in Paris. In the run-up to filing the written submission, the associates in Paris came over to London – and it was great to meet them in person after so many phone conversations.”

The team’s workload peaked twice: once at the end of 2005 at the deadline for the written submission, and again at the oral hearing in The Hague in May and June 2006. Cathy-Ann was involved in reviewing the documentation around the written submission. “I learnt an enormous amount about how to be incredibly organised – and how paying attention to little things saves time later on,” she recalls.

Matthew learnt a lot too. “The pressure was intense – and the case taught me a great deal about teamwork; how to co-ordinate people to get the best from everyone,” he explains. “At the end I felt privileged to be part of a team that had performed so superbly.”

When the tribunal pronounced in Eurotunnel’s favour in January 2007, lawyers, politicians and companies worldwide took notice. As well as establishing new principles in public international law, the ruling represented the first occasion on which the governments – which did not finance the tunnel – would have to pay money to Eurotunnel, potentially opening the way for it to win damages worth millions of pounds. For Matthew, Cathy-Ann and the team, this outcome made all the hard work even more worthwhile.

They were further rewarded when Herbert Smith won “Litigation Team of the Year” at The Lawyer Awards 2007 for their work for Eurotunnel.