When businesses extend across borders, cross-border disputes are a fact of life. However, litigation in familiar, local courts is often not an option. Litigation in unfamiliar foreign courts can be an expensive, risky, and stressful affair. International arbitration can be the solution to this problem and bring some certainty to an otherwise uncertain landscape. Arbitration is a user-driven process that can be customized to take into account the particularities of the business venture, differences in culture and language, and, of course, the need to provide a binding and fair process for the resolution of disputes.
A successful arbitration strategy begins at the inception of the transaction or venture. Disputes should be anticipated and a means for their resolution built into the relationship – in the commercial agreement – at the beginning. Whenever possible, Kelley Drye’s international arbitration team helps clients at the early stages of a transaction to plan for eventual disputes.
Kelley Drye’s international arbitration practitioners have deep international, legal and business experience. Several of our members have served as arbitrators. As a group, we routinely counsel some of the most successful multinational corporations in crafting a strategy to deal with disputes. We have counseled clients in the drafting of arbitration agreements (or clauses). We also advise on joint venture negotiations, project finance, technology transfer agreements, license agreements, and other transactions.
If the unfortunate happens, and a dispute arises, Kelley Drye’s international arbitration lawyers are ready to advise. We have helped countless clients successfully resolve complex international disputes. We have handled disputes arising out of joint ventures, license agreements, infrastructure projects, various contractual disputes, and energy issues (such as those arising from pricing and fuel concessions). The firm also prosecutes and advises on disputes governed by bilateral investment treaty (BITs).
We've represented some of the world’s largest construction, energy, manufacturing, financial services and automobile conglomerates. We are fully conversant with all of the important arbitration treaties, including the New York Convention, the Panama Convention, and the ICSID Convention. Of course, we also operate with full knowledge of the rules governing practice before the leading international arbitral institutions, including the International Chamber of Commerce (ICC), International Centre for Settlement of Investment Disputes (ICSID), the International Centre for Dispute Resolution (ICDR), and ad hoc proceedings conducted in accordance with the United Nations Commission on International Trade Law (UNCITRAL) Arbitration Rules.
Kelley Drye's international arbitration experience includes the following matters that are ongoing:
- Representing HOCHTIEF AG, a multinational construction services company based in Germany, in an ICSID arbitration against the Republic of Argentina.
- Preparing an ICSID arbitration on behalf of a technology company to recover the value of an expropriated telecommunications concession.
- 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.
Some recent examples of our international arbitration successes include the following:
- Obtained summary judgment in U.S. District Court in D.C. permitting the enforcement of a $430 million arbitration award for a Nigerian technology company which 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 was based 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.
- Handled a lengthy arbitration hearing before an ICC panel sitting in London, resulting in an award of $9.4 million, plus interest and attorney fees, in a case that involved leasing equipment in India.
- Won a favorable arbitration award for a leading telecommunications equipment maker, arising out of a joint venture in South America.
- Defended a medical device manufacturer in an ICC arbitration in Zurich involving a dispute under a license agreement with a supplier of component parts for new technology in the ophthalmic surgery area. Disposed of the multi-million dollar claim for nuisance value.
- Represented a corporation against its former CEO in a domestic arbitration arising from dispute over severance terms and non-compete obligations. Obtained the first decision in the SDNY directing a third party to produce documents in aid of arbitration under the Federal Arbitration Act.
- Co-trial counsel in the defense of a multi-million dollar claim arising out of a joint venture for the development of a call center facility in India. Obtained an arbitration award dismissing all claims brought against our client and an award of damages and attorneys’ fees on our counterclaim.
- Member of team of lawyers with pivotal drafting and research role in connection with a US$ 70 million plus international arbitration award to a NYSE-listed telecommunications client.
- 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.
- Represented several corporations in domestic arbitrations arising from M&A transactions and lease agreements.