Kenneth B. Reisenfeld

Experience

Sovereign Entities, Investor-State, and Investment Treaty Claims

• Represent a significant European financial institution and its owners in a prospective International Centre for Settlement of Investment Disputes (ICSID) arbitration in respect to discriminatory measures adopted by bank regulatory authorities, public prosecutors, and courts against the bank in violation of protections afforded investors under the applicable Bilateral Investment Treaty.
• Represented an Isle of Mann company in a significant commercial and breach of fiduciary duty arbitration case seeking more than $500 million from a South Asian government. The case was seated in London, England, and governed by the English Arbitration Act 1996 and the arbitration rules of the Chartered Institute of Arbitrators. A related bilateral investment treaty claim under ICSID rules was also pursued.
• Served as special outside arbitration counsel for the U.S. government and the Overseas Private Investment Corporation (OPIC), a U.S. government agency, in an unprecedented state-to-state investment arbitration proceeding against the Government of India stemming from the Indian government’s expropriation of the $3 billion Dabhol power plant, which ultimately led to a settlement whereby India paid OPIC 100 percent of its claims and paved the way for quarterly high-level talks between the two governments.
• Advised a U.S. government entity with respect to potential investment claims against the Bolivarian Republic of Venezuela.
• On behalf of sovereign entities, negotiated the international dispute resolution agreements for long-term, large-scale investment and project agreements for ports, mines, and transportation projects.
• Represented the Republic of Indonesia in one of the longest running arbitration and nullification cases in ICSID history relating to an alleged expropriation of hotel properties.
• Represented a mining company in its ICSID investment treaty claims against a West African country for expropriation of its properties and interests.
• Defended the Republic of France under the Foreign Sovereign Immunities Act against an unsuccessful attempt in U.S. District Court to attach the Embassy’s bank account in Washington, D.C.
• Represented several large U.S. companies successfully pursue significant expropriation claims before the Iran-U.S. Claims Tribunal, including claims exceeding $200 million.

Complex Contract and Commercial Disputes

• Served as an arbitrator in a significant International Centre for Dispute Resolution (ICDR) case raising financial accounting, misrepresentation, and warranty issues arising from the purchase and sale of the aviation operations of a major European manufacturer.
• Served as chair of an ICDR arbitration panel involving industry leaders relating to alleged breaches of construction and engineering services contracts for a nuclear power plant. 
• Represented a major North American transportation company in an ICC arbitration against DaimlerChrysler Rail Systems GmbH (Adtranz) and Bombardier Transportation GmbH, involving misrepresentations made during the acquisition of a substantial European business. Used the arbitration process and a related mediation to conclude an amicable commercial settlement between the parties.
• Represented Mitsui Mining and Smelting Corporation, a large Japanese mining and transportation company, and its subsidiaries in trade, commercial, construction, and investment disputes in U.S. and foreign courts and before international arbitral tribunals.
• Defended Jet Airways, the second largest Indian airline, in U.S. courts and obtained summary judgment dismissal on grounds of failure of service of process and jurisdiction.
• Represented a large Dutch equipment manufacturer in a breach of contract action against its U.S. distributor in arbitration proceedings before the Netherlands Arbitration Institute, resulting in a multimillion-dollar judgment against the U.S. distributor.

Technology Licensing/Telecom/Pharmaceutical/Intellectual Property Disputes

• Served as an arbitrator in a significant ICDR arbitration between a U.S. licensor and a leading Asian telecommunications manufacturer of 2G and 3G handsets relating to alleged breaches of patent licensing agreements, including their royalty and audit provisions.
• Represented an insurance company in an insurance coverage arbitration brought by a pharmaceutical company under the English Arbitration Act 1996 before an arbitration panel seated in London, England.
• Represented a leading telecommunications content provider in a generic domain name challenge before the Internet Corporation for Assigned Names and Numbers (ICANN) that was resolved by expert proceeding under ICC Rules.
• Represented a leading Chinese telecommunications company in a JAMS arbitration brought by a Japanese telecommunications company relating to cancellation of a long-term backhaul agreement.
• Defended a medical device technology leader against bet-the-company patent infringement and royalty claims in arbitration before the German Institution of Arbitration (DIS).  
• Represented a global pharmaceutical company in a $50 million licensing dispute arbitrated under the rules of the World Intellectual Property Organization (WIPO).
• Represented a global brand name franchisor in an international arbitration against a franchisee involving contract and intellectual property claims totaling in excess of $170 million.
• Defended a large German technology manufacturing company by quashing service of process and obtaining dismissal of Florida state case claiming breach of warranty and fraud and seeking millions of dollars in compensatory and punitive damages.
• Defended a large German technology company (a subsidiary of Daimler AG) in state and federal court litigation over a technology development and marketing agreement. Obtained full dismissal of all claims.

Energy Sector Disputes

• Assisted foreign counsel in a significant ICC arbitration involving breach of contract, engineering, and construction claims brought by a multinational joint venture against a state-owned oil company relating to construction of a $1.5 billion petroleum refinery and pipeline in Mexico.
• Developed a long-term strategy for a major E&P company in an effort to avoid expropriation of its energy assets in Latin America.

Infrastructure Project/Construction/Engineering Disputes

• Negotiated various construction and engineering service agreements (FIDIC and non-FIDIC) relating to significant projects in Asia and the Middle East and often including alternative dispute resolution provisions (e.g., senior executive negotiation, mediation, expert determination, or dispute review boards) in addition to final and binding arbitration.
• On behalf of leading Japanese supplier of mining equipment and engineering know-how, defended against claims for breach of contract and delay damages relating to design, engineering, and installation of smelting equipment on large-scale mining projects in Asia, Australia, and Latin America.
• Represented a leading European engineering service provider in defending against ICC arbitration claims arising from construction of an oil refinery and pipeline.

Service as an Arbitrator

• Served as sole arbitrator in an ICDR arbitration involving alleged breaches of global logistics and supply chain management support for construction of a solar thermal booster project in Australia.
• Served as an arbitrator in an ICDR arbitration involving alleged breaches of patent licensing agreements relating to 2G and 3G mobile communications technology.
• Appointed by parties to serve as Sole Arbitrator in an ICDR arbitration sited in New York relating to claims and counter-claims between a drug developer and a contract research organization relating to a global Phase III clinical trial for a cancer treatment therapy.
• Appointed by one party to serve in ICC arbitration in London relating to construction of a power project in Afghanistan.
• Served as an arbitrator in an ICDR arbitration arising from alleged breaches of a stock purchase agreement involving the sale of an aviation subsidiary of a European manufacturer.
• Served as chair in an ICDR arbitration involving commercial and engineering services disputes arising from alleged contractual breaches relating to construction and operation of a nuclear power plant.
• Served as arbitrator in In the Matter of Fresh Cut Flowers from Mexico, NAFTA, Chapter 19 Binational Review, Secretariat File No. USA-Mex-1995-1904-05 (Decision:  Dec. 16, 1996)  
• Served as arbitrator in In the Matter of Pure Magnesium From Canada (Anti-Dumping Determination), Article 1904 Binational Panel Review Under the United States-Canada Free Trade Agreement, Secretariat File No. 1992-1904-04 (Decision:  October 6, 1993)
• Served as chairman, sole arbitrator, and wing arbitrator in various commercial, contract, construction, and investment disputes.

Judicial Enforcement of Arbitral Awards

• Defended Outback Steakhouse, a global food and beverage franchise company, in Argentine and U.S. courts against recognition and enforcement of a $100 million ICC arbitration award that purportedly had been obtained by an Argentine franchisee against Outback Steakhouse. Award was set aside.
• Represented a U.S. company seeking recognition and enforcement in U.S. and Honduran Courts of a United Nations Committee on International Trade Law (UNCITRAL) award in excess of $60 million against the Republic of Honduras.

Memberships

• American Bar Association
  • Section of International Law
    • Honorary Life Member of Council
    • Former Chairman 
  • Liaison, London Court of International Arbitration
  • International Commercial Arbitration Committee
    • Senior Advisor
    • Former Chair
  • Taskforce on the ABA/AAA Code of Ethics for Commercial Arbitrators
• International Bar Association
  • Former Councilor representing the ABA
  • Taskforce on Party Representation in International Arbitration
  • International Arbitration Committee
  • Bar Issues Commission and Policy Committee (2006 to 2011)
• Institute for Transnational Arbitration, Center for American and International Law
  • Advisory Board
  • Executive Committee 
    • Co-Chair of Annual Workshop (2009)
• OFAC Group
• U.S. Secretary of State’s Advisory Committee on International Law (served two terms)