Kelley Drye

Practices 

International Arbitration

Safeguarding our Client’s International Business

Kelley Drye’s International Arbitration lawyers represent clients in all phases of their international transactions, from drafting arbitration clauses to arbitrating around the world, to the enforcement of awards. Our attorneys have represented clients in both international commercial arbitration and treaty-based arbitration of disputes involving sovereign governments arising out of transactions in international energy and mining, construction, manufacturing, technology and real estate development.

International companies turn to Kelley Drye for strategic advice about how and where to handle disputes and for guidance regarding the nuances of arbitration proceedings. We have successfully represented clients in proceedings before the International Chamber of Commerce (ICC), the International Centre for Settlement of Investment Disputes (ICSID), the American Arbitration Association (AAA), the International Centre for Dispute Resolution (ICDR), and ad hoc tribunals. We have extensive experience advising on the United Nations Commission on International Trade Law (UNCITRAL) Arbitration Rules. Our clients, not to mention our adversaries, come from all over the world, including Germany, India, Argentina, France, Japan, Brazil, Asia, Canada and, of course, the United States. Having represented companies in arbitration proceedings around the world, we are adept at achieving results that safeguard our clients’ international business interests.

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International Commercial Arbitration

As international commerce grows, business is conducted across national borders with greater frequency.  Public and private companies, governments and nongovernmental agencies purchase, manufacture and sell goods, resources and services, build infrastructure and make investments outside of their own country. The commercial agreements and other business arrangements they enter into generally provide for the resolution of disputes through international arbitration. Kelley Drye’s International Arbitration practice group regularly advises clients on complex international disputes, providing strategy on how best to take advantage of the arbitration options available while preserving commercial relationships.

There are a number of reasons that parties elect to have their international disputes resolved through arbitration. These include the desire to avoid the uncertainties and local practices associated with litigation in national courts, the desire to obtain a more efficient resolution, the relative certainty provided by agreements to arbitrate and arbitral awards (as contrasted with forum selection clauses and national court judgments), the freedom to select commercially sophisticated arbitrators, the parties’ freedom to select and design the arbitral procedures, confidentiality and other benefits.

Disputes should be anticipated and a means for their resolution built into the relationship – in the commercial agreement – at the beginning. Kelley Drye’s International Arbitration team helps clients at the early stages of a transaction to plan risk avoidance. We advise clients from the drafting of dispute resolution clauses to the conduct of proceedings, through to the enforcement of arbitral awards. Our attorneys have represented clients in international arbitrations arising from patent license agreements, distributor agreements, joint development agreements, joint venture agreements, shareholders’ agreements, mergers and acquisitions, and construction and infrastructure projects, among other disputes.

Investment Treaty Arbitration

Investment treaty disputes have been climbing steadily. Worldwide, at least 518 treaty claims cases were pending in 2012 against 95 countries, according to the United Nations. Bilateral investment treaties (BITs) grant foreign investors a right to file international arbitration claims directly against governments, usually without the need to contend with national court systems or local remedies. Kelley Drye’s International Arbitration practice offers a team of lawyers experienced in the enforcement of investor’s rights under bilateral investment treaties. Our lawyers have prosecuted BIT claims on behalf of some of the most significant global companies. We are also very familiar with the relatively small pool of arbitrators who oversee investment treaty proceedings, as well as the consultants and leading academics who act as expert witnesses in such proceedings.

Representative Experience

  • Representing HOCHTIEF AG, a multinational construction services company based in Germany, in an ICSID arbitration against the Republic of Argentina.

  • Representing two Korean joint venture partners in a New York ICC arbitration alleging non-performance of contract regarding the construction of a championship golf course as part of a master planned city in Incheon, South Korea.

  • Defending Imax Corporation in an ICDR arbitration of a dispute with a Panamanian company concerning the purchase and development of movie theaters in Central America, South America and the Caribbean.

  • Preparing an ICSID arbitration on behalf of a technology company to recover the value of an expropriated telecommunications concession. The respondent country is confidential but it is located in South America.

  • Defending a leading provider of micro-crop technology in an ICC arbitration brought by a Chilean customer alleging the breach of a license agreement. The arbitration has its seat in New York and is governed by New York law.

  • Advising a Ukrainian bank involved in an LCIA arbitration on all aspects of Delaware law relevant to the claims at issue and the collection of its potential award against an entity located in Delaware.

  • Represented Imax Corporation in a lengthy arbitration hearing before an ICC panel sitting in London, resulting in an award of $9.4 million, plus interest and attorney fees, in a case that involved leasing equipment in India.

  • Represented a foreign eyewear manufacturer and distributor and its U.S. subsidiary in an arbitration under the Commercial Rules of AAA over an exclusive long-term licensing agreement. Obtained a preliminary injunction from the New York State Supreme Court prohibiting the respondent from terminating the licensing agreement pending arbitration.

  • Obtained summary judgment in U.S. District Court in Washington, D.C. permitting the enforcement of a $430 million arbitration award for a Nigerian technology company that established breach by the Federal Government of Nigeria of a manufacturing and supply contract. The judge’s decision followed a London arbitration and an enforcement proceeding in the U.K., which was stayed while an enforcement proceeding was heard in a Nigerian court, which also favored the company.

  • Achieved a victory for an Indian manufacturer of vaccines in a hotly contested ICC arbitration proceeding in London governed by Indian law. In addition to an award in our client’s favor on the merits, we also obtained an award of costs. Kelley Drye also represented this client in an ICC arbitration in Paris concerning a license agreement.

  • An arbitration involving a long-term, $1.2 billion contract for the sale of liquefied petroleum gas and natural gas from Saudi Arabia in which the arbitrator awarded our client specific performance of the entire contract and substantial money damages.

  • Successfully represented a major French industrial company in international arbitration in Hong Kong governed by Hong Kong law and the ICC Rules arising from a patent license agreement.

  • A favorable settlement for a major U.S. telecommunications equipment manufacturer in a complex international arbitration. The arbitration was heard in New York and governed by Brazilian law.

  • A favorable settlement for a U.S. manufacturer of CDs in an ICDR arbitration with a Japanese adversary. The arbitration had its seat in New York and governed by New York law.

  • An important arbitration victory in a contract dispute on behalf of a large Indian provider of information technology equipment and services.

  • A favorable settlement for a Korean manufacturer of fertilizer in a substantial breach of contract dispute with a U.S. phosphate rock exporter. This ICC arbitration was based in Geneva and settled prior to a hearing.

  • An arbitration in Switzerland between our client, a leading U.S. manufacturer of office equipment, and a German company, arising out of a long-term supply agreement.

  • Won a favorable arbitration award for a leading telecommunications equipment maker, arising out of a joint venture in South America.

  • Defended a medical device manufacturer in an ICC arbitration in Zurich involving a dispute under a license agreement with a supplier of component parts for new technology in the ophthalmic surgery area.  Disposed of the multi-million dollar claim for nuisance value.

  • Represented a corporation against its former CEO in a domestic arbitration arising from dispute over severance terms and non-compete obligations. Obtained the first decision in the SDNY directing a third party to produce documents in aid of arbitration under the Federal Arbitration Act.

  • Co-trial counsel in the defense of a multi-million dollar claim arising out of a joint venture for the development of a call center facility in India.  Obtained an arbitration award dismissing all claims brought against our client and an award of damages and attorneys’ fees on our counterclaim.

  • Represented Brazilian clients against their Japanese joint-venture partner in an international arbitration in New York arising from the exercise of a right of first refusal.

  • Represented the owner of a construction site against the contractor in an international arbitration in New York arising from the construction of an oil facility in Venezuela.

  • Represented a U.S. joint-venture partner against its Mexican joint-venture partner in an international arbitration in Mexico arising from a joint-venture contract.

  • Represented a corporation incorporated in China against a company incorporated in the UK in an international arbitration in New York arising from a license agreement to manufacture and sell automobiles in China.

  • Advised a Canadian corporation in a dispute with the Brazilian buyer of a business regarding adjustments to the purchase price.

  • Advised a mining corporation incorporated in the UK in a dispute with its U.S. joint-venture partner regarding the exercise of the right of first refusal.
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