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Over the past decade, investments of American enterprises in the developing world have risen dramatically. With this growth, there has been an accompanying expansion in the complexity of the regime that governs, and therefore drives, investment decisions. Investing abroad today presents new issues, new risks, new problems, and new opportunities.
Today's international dynamic requires investors to consider the relative benefits available under substantive and procedural provisions of U.S. free trade agreements (FTAs) and bilateral investment treaties (BITs), other countries' FTAs and BITs, other investment agreements, or multilateral and regional frameworks. They also need to have an exit strategy, and that means being aware of the various mechanisms for resolving disputes or responding to laws or practices of host governments that could cripple or confiscate their investments.
Practice Overview
Complementing its expertise in international trade and litigation, Miller & Chevalier represents clients in the area of investment matters and disputes, with particular emphasis on disputes involving foreign governments, measures taken by foreign governments, and disputes raising public policy issues.
To help clients identify and capitalize on international investment opportunities, our international trade policy practice interacts extensively with attorneys in our trade remedy, trade policy, international tax, government affairs, and intellectual property litigation practices. The practice includes a veteran group of government affairs and international business professionals who draw on their extensive senior government and private practice experience to achieve our clients’ objectives. Government positions held by members of our firm include:
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General Counsel, U.S. Department of Commerce
- Assistant U.S. Trade Representative for the Americas, Office of the United States Trade Representative
- Assistant U.S. Trade Representative for Congressional Affairs, Office of the United States Trade Representative
- Associate General Counsel, Office of the United States Trade Representative
- Deputy Assistant U.S. Trade Representative for Multilateral Trade Negotiations, Office of the United States Trade Representative
- Chief International Trade Counsel, U.S. Senate Finance Committee
- Chief Counsel, U.S. Customs Service
- Assistant to the Chairman, U.S. International Trade Commission
Our services include:
- Counseling clients on available rights and remedies under bilateral investment treaties, concession and other agreements, investment chapters of trade agreements, and international law;
- Assisting in drafting dispute resolution clauses, including with respect to submissions to arbitration;
- Assessing the viability of claims against host governments or other parties in connection with investment disputes, including claims for expropriation, denial of national treatment, most favored nation treatment, and the minimum standard of treatment;
- Advising clients on the pros and cons of alternate remedies;
- Advising clients on the interface of trade and investment issues;
- Assisting with arbitrator selection;
- Assisting with political risk insurance;
- Representing clients before arbitral tribunals and in related proceedings;
- Representing clients in the recognition and enforcement of awards; and
- Pursuing claims with political risk insurers, including the Overseas Private Investment Corporation (OPIC), and the Multilateral Investment Guarantee Agency (MIGA).
We have had experience with a wide variety of international arbitration institutions, as well as ad hoc arbitrations. Institutional experience of our lawyers includes the International Centre for the Settlement of Investment Disputes (ICSID) and its Additional Facility, the London Court of International Arbitration, the International Chamber of Commerce, and the American Arbitration Association (AAA). We also have experience with ad hoc arbitrations under the United Nations Commission on International Trade Law (UNCITRAL) rules, before specialized claims settlement tribunals, such as the Iran-U.S. Claims Tribunal, and others.
We have been involved in cases concerning both direct and indirect expropriations, legislative measures (including taxation measures at both a national and provincial level), administrative measures, breaches of contract, and others. Our deep experience in trade agreements enables us to add particular value in disputes having cross-over trade and investment issues.
Representative engagements:
- Representation of a U.S. multinational that brought a claim against Mexico in the largest tax-based investment claim ever filed under the North American Free Trade Agreement (NAFTA) Chapter 11. The firm’s parallel strategy was to bring pressure on the Mexican Government by persuading the USTR to bring a WTO Case against Mexico on the same issue and assisting in that case’s litigation strategy.
- Obtaining clearance for an expropriation claim by the relevant tax authorities of the United States and Mexico under the special review process established by Article 2103(6) of the North American Free Trade Agreement (NAFTA) for such claims involving taxation measures. This was only the second time such a procedure had been used since the NAFTA went into effect and was the first time an Article 2103(6) submission had been cleared without the need for further submissions.
- Representation of a U.S. company in an expropriation claim submitted to OPIC, including assistance in claim preparation. The claim is pending at this writing.
- Counseling of a U.S. multinational regarding available remedies for an investment dispute under the U.S./Chile Free Trade Agreement. The dispute has since been settled.
- Counseling a Mexican multinational with a potential dispute in Argentina on dispute resolution options under all potentially relevant bilateral investment treaties.
Related Publications
International Issues Preview 2008International Alert - Update: The New Law Governing CFIUS National Security Review of Foreign InvestmentAuthor(s): Larry ChristensenPreview of International Issues for 2007
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