International Trade – Litigation
International Trade – Legislative and Regulatory Policy
Export-Import Bank Policy
We have assisted businesses from the United States, Europe, and Asia wishing to invest in countries with barriers to direct foreign investment, such as inadequate legal regimes, underdeveloped physical infrastructure, and armed conflict.
Our services in this regard include:
- Identifying and evaluating financial and legal incentives for investment, including international investment treaties and agreements, tax incentives, and international assistance programs.
- Assessing legal, political, and economic barriers to investment, such as expropriation, currency controls, entry and import restrictions, and restrictions on the export of profits and products.
- Negotiating with host governments to secure all necessary licenses and permissions to do business and produce and distribute products, develop natural resources, construct infrastructure and facilities, and provide services.
- Maintaining positive relations with governing authorities throughout the lifetime of the investment.
- Ensuring compliance with the Foreign Corrupt Practices Act and other anti-corruption laws.
- Protecting the investment from legal uncertainty, bureaucratic obstacles, inadequate legal structures, and abusive tax laws or administration.
- Establishing business relationships with local partners.
- Managing and resolving disputes through settlement, mediation, arbitration, and litigation.
- Advising on provision of physical security of facilities and personnel and managing the legal risks associated with security operations.
- Advising on country/region-specific risks and responses.
We have assisted the governments of states and regions interested in encouraging foreign investment to speed economic growth while maintaining appropriate safeguards for their domestic industries and economies.Our services in this regard include:
- Assisting governments in drafting policy and legislation in line with international laws and norms familiar and attractive to foreign investors.
- Identifying and evaluating financial and legal incentives to encourage investment, including international investment treaties and agreements, tax incentives, and international assistance programs.
- Assessing and, as necessary, revising the host country’s legal, political, and economic features that may deter investment, such as currency controls, entry and import restrictions, and restrictions on the export of profits and products.
- Assisting governments to screen potential investors, including designing and managing competitive bidding procedures that conform to international standards and practices.
- Advising governments on negotiating agreements with foreign investors to protect and benefit host governments and their citizens.
- Advising on laws to facilitate, finance and regulate those providing physical security for investors’ personnel and facilities, whether they are host government police and military personnel or private security contractors paid directly by the investors.
- Helping government clients draft and enforce anti-corruption statutes.
- Advising host governments on international dispute resolution options, such as international commercial arbitration, that will be fair to both host governments and investors.
Picard, Kentz and Rowe lawyers have extensive experience advising and representing sovereign state, industry and financial clients regarding disputes arising under international contracts, agreements and treaties. We specialize in the public and private international law, policy and procedures governing international dispute prevention and resolution. We have represented clients in disputes subject to resolution processes administered by the International Chamber of Commerce, the Permanent Court of Arbitration, the International Center for the Settlement of Investment Disputes, and ad hoc tribunals. We also specialize in international disputes brought in the US federal courts. Recent such matters include:
- International Claims under the International Law of State Responsibility
- Investment Disputes (under contracts and treaties)
- Land and Maritime Boundary Disputes
- State-to-State Disputes
PKR has extensive experience in negotiating the terms of state-to-state arbitrations and representing sovereign states in such arbitrations.
- After helping the Federal Democratic Republic of Ethiopia negotiate the terms of a peace agreement with Eritrea to end the 1998-2000 conflict between the two countries, lawyers at PKR have represented Ethiopia in an arbitration before a tribunal set up by the peace agreement at the Permanent Court of Arbitration in The Hague to resolve claims for loss, damage, or injury arising from the conflict;
- Negotiation of arbitration agreements and representation of the Government of Yemen in land and maritime boundary arbitrations with Eritrea;
- Representing a Middle Eastern government in preparing for arbitration of a boundary dispute with a neighboring state. The dispute was resolved through settlement prior to arbitration; and
- Advising States in Asia, Africa, Europe and the Former Soviet Union regarding use of arbitration to resolve disputes with other states.
Land and Maritime Boundary Disputes
Representation of Sovereigns in Boundary Disputes
Lawyers at PKR have advised and represented governments on boundary disputes in some of the most important and challenging cases of the last four decades. The firm has an experienced team of lawyers and support staff to assist governments as they address such disputes, including experienced practitioners of international law who have represented governments around the world and understand the unique sets of issues governments face.Before entering private practice, a number of our lawyers acted as government officials for their own national governments thus PKR brings an important perspective in providing boundary advice. Our lawyers have helped governments organize their national efforts to resolve boundary disputes with their neighbors and have represented them before International tribunals. We have been successful in bringing boundary disputes to satisfactory settlement by negotiation.Our experience includes advising senior government officials regarding the strength of their claims as a matter of international law thus helping to determine negotiating strategies including the important decision as to whether pursuing the resolution of a dispute through the International Court of Justice or other arbitral tribunals is in the best interest of the government. Our lawyers have worked closely with lawyers and experts from the represented governments to collect documentary, geographical, physical and testimonial evidence throughout the world in various languages and to analyze and prepare such evidence for effective use in negotiations and arbitral proceedings. We also have considerable experience in negotiating and drafting the terms of treaties and arbitration agreements and in dealing with petitions for interim measures of protection. In addition, we are experienced with implementation and other post-award issues including demarcation and enforcement issues.Diplomacy and Negotiation Experience
Boundary disputes are not purely legal matters; they involve complex diplomatic and political elements that require careful attention. Our lawyers have extensive relationships and experience working with the United States, European and other interested governments, the United Nations Security Council and Secretariat, regional organizations and other elements of the international community with regard to resolving disputes involving sovereigns. Well-executed diplomatic and political activities often play an important role in a client’s overall strategy, creating leverage to resolve a dispute favorably.Having legal counsel experienced in negotiating and crafting settlements, who can bring to bear both legal and political leverage to strengthen the government’s position, can prove critical. We have represented and advised governments in some of the most complex and sensitive agreements between foreign sovereigns, such as settlement of a long standing boundary dispute, the conclusion of a treaty to end a war between two countries and a multilateral treaty over oil and gas transit in a volatile geopolitical battle.Key Representations
Our representations that may be of particular interest include:
- Representation of Yemen against Saudi Arabia in settlement by negotiation of land boundary, maritime boundary and island sovereignty disputes;
- Representation of the Government of Ethiopia in establishing two ad hoc tribunals at the Permanent Court of Arbitration in The Hague to resolve a boundary dispute and war related claims between Ethiopia and Eritrea and presenting the case before the tribunal; this representation has entailed:
- Defending Ethiopia before the tribunal and with the United States and other Security Council members regarding Ethiopia’s objection to the tribunal’s method of implementation of the delimitation decision and transfer of sovereignty.
- Succeeding in obtaining judgment against Eritrea for starting the war in violation of the UN Charter’s prohibition on the use of force; and
- Representing Ethiopia regarding its multibillion dollar claims for damages resulting from the commission’s findings of liability against Eritrea for its violations of the laws of war.
- Representation of the Government of Yemen regarding military hostilities and occupation of the Hanish-Zuquar Islands in the Red Sea. This representation has entailed:
- Advising Yemen in the negotiation of an arbitration agreement to submit the claims to an ad hoc arbitration at the Permanent Court of Arbitration in The Hague;
- Representing Yemen before the arbitral tribunal in The Hague, resulting in sovereignty over the most important islands being granted to Yemen; and
- Representing Yemen in issues regarding non-compliance by Eritrea of implementation of the award.
- Representation of the Government of the Republika Srpska on implementation of boundary arbitration award pursuant to Dayton Peace Accords.
Our experience in managing highly qualified teams of legal and technical practitioners allows us to provide a comprehensive and customized set of services as lead counsel in connection with any boundary dispute. We have extensive experience as lead counsel for governments in both the negotiation and arbitration of boundary disputes. This experience includes assembling distinguished legal and technical practitioners from throughout the globe to work as part of a legal team tailored to the government’s particular dispute and to advise on selection of party-appointed arbitrators in the case of arbitrations.
We have also developed an extensive network of prominent technical practitioners experienced in boundary disputes, including cartographers, satellite imagery specialists, hydrographers, economic analysts, historians and archivists. Through the careful management of such practitioners, we have developed extensive experience handling complicated evidentiary issues essential to the success of our clients, such as the following: classifying various maritime formations; working with cartographers to develop and present evidence cartographically; conducting geographical surveys; investigating and retrieving archival material, ancient maps, diplomatic and other relevant contemporaneous documents; collecting documentary and testimonial evidence in the field; and preparing and handling fact and expert witnesses.
Representation of Sovereign States, Sub-State Governments, and Autonomous Regions
Our lawyers have extensive experience in advising government clients. They have represented governments in Africa, Asia, Europe, the Middle East and the Former Soviet Union in connection with legal, diplomatic, political, trade and investment matters, including:
- Negotiation of treaties and other international agreements;
- Post-conflict negotiations, diplomatic initiatives and confidence building measures;
- Self-determination of Peoples;
- Bilateral relations with the United States;
- Complex international investment projects;
- Disputes between governments of sovereign states over claims concerning boundaries, human rights, the laws of war and use of force;
- Government relations and public policy advocacy;
- International Criminal tribunals;
- International investment disputes with private companies;
- Litigation in U.S. courts;
- Reform and development, including legal and regulatory reform;
- Trade agreements and disputes.
Firm partners have served in the U.S. State and Treasury Departments and lived and worked in Africa, Asia, Europe and the Former Soviet Union in connection with assignments relevant to the matters listed above.
US Court Litigation Involving International Law
PKR has a major practice in disputes involving sovereign immunity claims by states, state agencies, state-owned companies, and state officials. Our lawyers have wide-ranging experience and expertise to assist clients in all aspects of litigation and other actions against states and state entities.Sovereign Immunity Issues in U.S. CourtsOur team has represented numerous governments and governmental entities in U.S. litigation involving international disputes that turn on issues of sovereign immunity, forum non conveniens, the Act of State Doctrine, the Political Question Doctrine, U.S. anti-terrorism legislation and related issues of venue and service of process. We have extensive experience with the relevant law and the judicial practices pertaining to the doctrines in question, enabling us to represent clients in such matters effectively and efficiently.Recently, PKR lawyers were successful in obtaining an important dismissal of a U.S. lawsuit against its clients, the Republic of Cameroon and its state-owned corporation, Crédit Foncier du Cameroun, in a commercial action against them under the Foreign Sovereign Immunities Act (“FSIA”). The lawsuit was brought by a U.S. corporation and a Cameroonian corporation demanding US$500 million in damages for alleged breach of contract, misrepresentation, intentional interference with contract rights, misappropriation of trade secrets, and other alleged wrongs. The U.S. court dismissed the action on the ground of forum non conveniens, ruling that the courts of Cameroon represent an adequate alternative forum and that both the public and private interests favor dismissal of the U.S. proceedings in favor of Cameroon.Members of our team have been successful in the defense of other commercial actions brought under the FSIA against foreign governments and their agencies or instrumentalities. PKR lawyers secured the dismissal of a lawsuit brought against the Federal Democratic Republic of Ethiopia and the Commercial Bank of Ethiopia alleging the expropriation of bank accounts and other property of Eritreans who were allegedly expelled from Ethiopia during the 1998-2000 hostilities between the two countries. The lawsuit was brought as a class action on behalf of up to 70,000 Eritreans seeking substantial monetary damages. The action involved issues of expropriation under international law, the Act of State Doctrine, the exhaustion of domestic remedies, and the effect of Eritrea’s espousal of plaintiffs’ claims before an international claims tribunal.Other experience includes:
- Successful defense of PT Pertamina (Persero), the state oil company of Indonesia, against claims brought under the FSIA by Oceanic Exploration Company against Pertamina and others.
- Advising a state-owned commercial bank on potential exposure of its assets under new FSIA attachment and execution legislation.
- Representation of an African government against claims that it provided material support for terrorist acts.
Public and Private International Law
Picard, Kentz and Rowe lawyers specialize in public and private international law. We advise sovereign state, industry and financial clients on their rights and obligations under bilateral and multilateral treaties and general international law.We have extensive experience with litigation and negotiations involving the United Nations Charter, bilateral and multilateral trade and investment treaties, international human rights and humanitarian law, boundary and maritime law and claims arising under the international law of state responsibility. This includes litigation and arbitration of disputes before US courts and international tribunals.We are experienced in dispute resolution through diplomatic and political channels, with firm members who have served in the US State and Treasury Departments on Capitol Hill and in Africa, Asia, Europe and the Former Soviet Union. Our clients are located throughout the world.Such matters include:
- Representation of Government of an African state in negotiating a comprehensive peace treaty to end a war. This included establishing an independent international tribunal in The Hague to consider claims of loss, damage and injury resulting from the armed conflict;
- Representation of the Government of the Republic of Srpska on implementation of the Dayton Peace Accords and advising on international law and policy matters;
- Representation of the Government of an African state in disputes involving claims arising from international terrorist activities;
- Representation of the Government of Ethiopia in establishing an ad hoc tribunal at the Permanent Court of Arbitration in the Hague to resolve a boundary dispute with Eritrea;
- Representation of the Government of Yemen regarding military hostilities and occupation of the Hanish-Zuquar islands of the Red Sea;
- Representation of the Government of Pakistan regarding U.S.-Pakistan trade and economic policy;
- Representation of the Government of the Republic of Cameroon and its state owned corporation, Credit Foncier du Cameroun in a commercial action against them in U.S. court under the Foreign Sovereign Immunities Act (“FSIA”); and
- Advice regarding U.S. court jurisdiction over torts committed against non-U.S. citizens;
- Representation of government officials of an African sovereign state in U.S. Court in a libel and slander action.
Federal Legislative and Regulatory Policy
The work of the Firm’s lawyers on legislative and regulatory policy matters has extended across diverse issue areas. We have advocated before the Congress and the Executive Branch in support of statutory and regulatory provisions that would benefit our clients’ businesses. We also have worked with our clients to develop legal and policy arguments in opposition to proposals that would adversely affect their businesses.
Our general approach is to work with clients to identify issues and areas of need, and determine whether a legislative or regulatory solution is the proper vehicle to address those issues or needs. We then work with our clients to craft the appropriate solutions, and shape and communicate the appropriate policy arguments to support our proposals. Oftentimes our work on policy issues includes drafting the desired legislation or regulations and the explanatory language to be used as legislative history or regulatory guidance. Drafting white papers in support of our proposals also is essential to our advocacy.
As lawyers, the key to our policy work is knowledge of the relevant law and an understanding of what can or cannot be done within the strictures of complementary laws and regulations. Throughout the process of a particular project, we act as an ongoing resource for the relevant Congressional or agency staff. In this respect, we assist not only with legal issues, but also policy and political issues. Where appropriate, we also assist in the organization of coalitions of parties with similar interests or concerns to increase our effectiveness by leveraging the knowledge, experience, and political resources of a broader group of interested parties trying to achieve the same goal.
Our lawyers counsel clients with respect to proposed and enacted legislative and regulatory changes and the effect of such changes on their businesses. We have prepared clients for testimony before Congressional committees and administrative agencies, and through our involvement in public policy matters, we also have advised clients with respect to lobbying disclosure, campaign finance, and Congressional ethics rules. We also advise on and ensure compliance with regulations regarding the registration and activities of foreign agents, as well as with the Foreign Corrupt Practices Act.
Federal Taxation – Exempt Organizations
Our lawyers have experience working on a number of issues related to tax-exempt organizations. In recent years, the Internal Revenue Service and Congressional tax-writers have increased their oversight and scrutiny of such organizations, and our lawyers have worked with exempt entities to ensure that they are in compliance with the laws that govern them.
We have assisted with the establishment of non-profit entities through state incorporation and their application for tax-exempt status from the Internal Revenue Service and state taxing authorities. In doing this, we counsel clients with respect to permissible purposes for which they can be established, activities they can undertake to further their purposes, and issues related to fundraising and use of organization assets. We assist in the preparation of applications for tax exemption, and represent clients before the IRS throughout the application process.
In addition to assisting with the establishment of tax-exempt organizations, our lawyers have counseled 501(c)(3) non-profit entities, 501(c)(6) trade associations, and other exempt organizations on issues related to governance, disclosure, and reporting, as well as unrelated business activities, compensation issues, and permissible uses of organization assets.
Lobbying Disclosure & Congressional and Government Ethics
To complement their work representing clients before Congress and Federal agencies, the Firm’s lawyers have experience navigating many of the laws and regulations that govern the political process. When entities choose to do business in Washington, there are a myriad of rules they must follow. These include compliance with, and registration and reporting requirements under, the Lobbying Disclosure Act, and compliance with Congressional and Executive Branch ethics rules. Adherence with these rules is essential not only from a legal standpoint, but also to ensure effective involvement in the political process.