Practice Leader: James D. Rosener
European American Chamber of Commerce – New York
International Trade and Customs
International Dispute Resolution
International Trade Finance
Pepper Hamilton LLP represents major national and multinational corporations, emerging businesses, foreign governments, trade associations, nonprofit organizations, entrepreneurs and individuals. We provide U.S. and foreign clients with the legal services necessary to structure, negotiate and document business transactions; resolve disputes through litigation, arbitration or negotiation; and comply with (and help to shape) government regulations.
The International Practice Group is a multidisciplinary group of lawyers representing U.S. and non-U.S. corporations in a variety of practice areas. Our international practice has three primary components:
- serving non-U.S. companies as they enter or expand operations in the United States
- serving U.S. companies as they expand and grow overseas
- serving U.S. and non-U.S. companies in cross-border transactions, joint ventures and technology transfer.
We regularly render advice about:
- cross-border sales of goods and services, and technology and other intellectual property transfers
- structuring acquisitions, investments, joint ventures, sales of businesses, repatriation of earnings, currency transactions and the insuring of foreign investments, including matters such as securities, tax, financing, environmental, labor, benefits and real estate issues that arise in these transactions
- debt and equity financings and restructurings, in support of other transactions and independently, and involving public and private sources of capital
- follow-on work for non-U.S. clients with interests in the United States, helping them with corporate transactions, mergers and acquisitions, governmental regulation, litigation, arbitration or other forms of dispute resolution, intellectual property problems, labor relations and employee benefit work, environmental and other safety and health related issues, product liability matters and other business services
- negotiating agreements between countries, as well as advising on issues of sovereignty and international law
- international trade and matters involving the World Trade Organization.
Through our years of working on international matters, we've developed strong relationships with legal counsel in many countries. We pride ourselves in working with some of the best lawyers in the jurisdiction, not just a lawyer who happens to be resident in a nearby office. As business operates on an increasingly global scale, we believe such relationships will be very useful and important for clients.
All lawyers in the International Practice Group are experienced in representing U.S. and non-U.S. corporations in a variety of international matters. Many have lived and worked abroad and/or are fluent in foreign languages, and some have worked at the U.S. State Department.
Pepper lawyers are past presidents of international organizations including the Mexican-American Business Alliance of Pennsylvania, Delaware and New Jersey, and the Chilean and American Chamber of Commerce of Greater Philadelphia. Our lawyers are also leaders in organizations such as the Japan-America Society of Pennsylvania, the Atlantic Council of the United States, the World Affairs Council, the British-American Chamber of Commerce and the French-American Chamber of Commerce. A Pepper partner is one of the 12 mediators/arbitrators from the United States who serve on the panel of the Commercial Arbitration and Mediation Center for the Americas, a joint venture of Canadian, Mexican and U.S. arbitral institutions aimed at serving the needs of the business and legal communities when disputes arise between NAFTA partners. Another partner is the past president of the American Chapter and a member of the board of directors of the Union Internationale des Avocats (International Association of Lawyers), a Paris-based organization that is the world's oldest international lawyers association. In addition, our lawyers teach international business and tax law courses and frequently write on a variety of international topics, from tax law to securities law.
Helping Non-U.S. Entities Succeed
Pepper's international work covers the range of legal issues confronting domestic and foreign companies making strategic investments in the United States and abroad. We represent foreign clients in the acquisition of U.S. companies, as well as in dispositions of their U.S. operations. We also represent numerous domestic subsidiaries of foreign corporations.
We regularly advise on:
- the negotiation of joint venture, corporate partnering, financing, distribution and franchising arrangements
- the preparation of intellectual property protection and licensing agreements
- the application of U.S. statutory schemes in such areas as taxation, antitrust, environmental liability, export control, customs, employment discrimination, employee benefits, banking and securities law.
In addition to handling strategic acquisitions for foreign clients, we represent financial institutions in complex loans and loan workouts, as well as sovereign credit workouts, including debt swaps and sales and debt-for-equity conversions. We have represented foreign governments in debt reschedulings and refinancings with commercial banks and official creditors and in the drafting and negotiation of a range of commercial agreements. Some recent transactions include:
- the $900 million acquisition of one London Stock Exchange company in the health care industry by another London Stock Exchange Company. The target company had U.S. subsidiaries and U.S. shareholders.
- the sale of stock of a Canadian software company to a publicly traded U.S. software company valued at $80 million
- the sale of stock of two U.S. operating subsidiaries of a plastics/electronic components company listed on the London Stock Exchange for $50 million
- the representation of a French company in its acquisition of a privately held U.S. yeast producer for $50 million
- the acquisition of a Channel Island-based natural resources company for $45 million by a South African-based company
- a French defense electronics company's $25 million acquisition of a U.S. space technology company
- numerous acquisitions in the United States for a major French construction materials company.
Helping U.S. Companies Grow Overseas
Pepper represents many U.S. clients with operations in other countries, facilitating acquisitions of or direct investments in foreign companies as well as the financing of overseas projects by private sources, governments and international development agencies. We render advice on international trade and export control and Customs issues involving U.S. regulatory agencies as well as foreign government agencies.
We regularly use our close relationships with other high-quality law firms around the world to provide quick and convenient assistance for clients engaged in transactions in other countries. Several of our lawyers are licensed to practice law in foreign jurisdictions and have extensive knowledge of other legal systems and business cultures. Some recent transactions include:
- the $1.3 billion sale of a Nasdaq-listed bank to the U.S. subsidiary of a European bank holding company
- the acquisition by merger of a Nasdaq-listed international telecommunications company for $140 million by another Nasdaq-listed international telecommunications company
- the representation of a publicly traded provider of enterprise software and information technology services in its $34.5 million acquisition of a leading Dutch enterprise resource planning software company
- the purchase by tender offer of a Canadian public company for $40 million
- the purchase of a privately held malting plant from a Korean conglomerate for $37 million
- the $20 million purchase of stock in a privately held Australian telecommunications company for cash and securities
- the disposition of shares of a publicly traded U.S. electronics company by merger with a related publicly traded U.K. company involving registration of the securities to be sold.
Cross-Border Transactions, Joint Ventures and Technology Transfer
We help clients structure, negotiate and document business deals, joint ventures and corporate partnering arrangements across national borders. Our clients include domestic and international corporations and entrepreneurs seeking to develop long-term arrangements for the development and marketing of new technologies and products.
Effective representation in cross-border transactions requires a firm grasp of the law and business culture in all the nations involved. Our international lawyers are experienced in helping clients in most of the United States' major trading partner nations. For example, several of our lawyers are trained and experienced in the law of the European Community. We advise companies on the Community's single market program, its regulation of mergers and acquisitions and other forms of corporate alliance, and its trade regulations and policies (including representation before the EC in antidumping and subsidy investigations). We also have successfully defended Canadian exports to Australia before Australian tribunals, and represented U.S. interests in Mexico.
We are also experienced in project finance, assisting in the development, construction, financing and operation of facilities such as railroads, power facilities, manufacturing plants and processing facilities, municipal parking facilities, health care facilities, airport and airport-related facilities, and municipal pollution control facilities. We have helped clients obtain financing from the World Bank, the International Finance Corporation, the Inter-American Development Bank, the Asian Development Bank and the African Development Bank. Many of these projects are supported by official loan guarantees from the Export-Import Bank, the Agency for International Development, the Overseas Private Investment Corporation, similar agencies in other countries, and the Multilateral Investment Guarantee Agency, an affiliate of the World Bank.
In the area of technology transfer, our lawyers structure, draft and negotiate a variety of agreements between domestic companies and their foreign counterparts, including research and development joint ventures, territorially-defined licensing arrangements, multi-state distributorships and equity arrangements. Representative transactions have included technology sharing arrangements within the former U.S.S.R. and the Peoples' Republic of China as well as companies throughout Europe, the Middle East and Latin America.
For example, we recently represented:
- a German pharmaceutical company in the purchase of a U.S. manufacturer of prescription and over-the-counter pharmaceutical products
- an international pharmaceutical company in connection with its collaboration with a biotechnology company involving the joint development, manufacturing and marketing of a product designed to treat restenosis
- a publicly held Australian biopharmaceutical company in several joint ventures with a group of Canadian companies.
We also help foreign and domestic clients comply with government regulation of international business. For example, we:
- advise about privatizations, regulation of imports and exports of goods and services, and control of foreign investment in the United States
- represent clients in formal or informal proceedings before government agencies such as the Department of Commerce, the International Trade Commission, the Department of the Treasury (including the Bureau of Customs and Border Protection), the Federal Trade Commission and the Office of the United States Trade Representative
- counsel on the Foreign Corrupt Practices Act, anti-boycott legislation, and other statutes affecting corporations doing business abroad.
International Trade Practice
Pepper Hamilton LLP offers many legal services to clients engaged in international commerce. We monitor and participate in legislative and regulatory activities that affect international trade generally and the specific interests of our clients. We represent foreign and domestic clients and private companies and governments. Our international trade practice encompasses three broad areas: international trade litigation; customs and import restrictions; and export controls and economic sanctions. Most client matters are not limited to just one of these categories, but require skill in two or even all three to reach successful resolution.
International Trade Litigation
Our international trade litigation experience includes antidumping and countervailing duty investigations and reviews, Section 337 investigations, Section 201 “Safeguard” cases and Section 301 actions. We have represented clients in proceedings under the World Trade Organization (WTO) agreements and before the U.S. Department of Commerce, the U.S. International Trade Commission, the Office of the U.S. Trade Representative, the U.S. Court of International Trade, the U.S. Court of Appeals for the Federal Circuit and the U.S. Supreme Court.
Recognizing that our clients are engaged in a complex commercial world, we represent foreign and domestic interests. Our position is that we are on the right side of every action for which we are engaged, regardless of whether our client is a U.S. or foreign entity. We have represented foreign companies as respondents and U.S. industries as petitioners in these international litigation matters.
Pepper also has considerable experience with patent disputes before the International Trade Commission, which hears disputes involving imported goods under Section 337 of the Tariff Act of 1930. These cases almost always involve complex technologies, and usually are for big stakes – either shutting out foreign competitors that violate U.S. IP rights from the U.S. market, or preserving an importer’s access to the U.S. market. The ITC also has expedited scheduling requirements – cases often must be ready for full trial within 180 days. Pepper’s team includes former ITC attorneys who are fully familiar with this unique forum and have a record of success representing clients before the ITC.
Customs and Import Restrictions
We advise clients on compliance with U.S. customs laws and represent clients in administrative proceedings under those laws. We assist clients in making determinations or obtaining rulings from the U.S. Customs and Border Protection (CBP) regarding the classification, valuation and marking of merchandise.
Our lawyers advise clients on how to structure transactions to reduce or eliminate duties, and on the statutory and regulatory requirements associated with claiming preferential duty rates under the North American Free Trade Agreement, the Generalized System of Preferences (GSP) and other trade agreements. We file and defend GSP eligibility petitions for our clients before the U.S. International Trade Commission and the Office of the U.S. Trade Representative. We monitor and provide advice on quotas and other import restrictions and on the application of the WTO agreements.
We represent clients whose merchandise is seized or is subject to other penalty actions by CBP. We also assist clients in submitting prior disclosures to limit potential penalty exposure and in designing customs compliance programs. We conduct internal audits and counsel companies undergoing audits by U.S., Mexican and Canadian customs authorities.
Export Controls and Economic Sanctions
We represent foreign and domestic companies on export control issues and economic sanctions before the Directorate of Defense Trade Controls of the U.S. Department of State, the Bureau of Industry and Security of the U.S. Department of Commerce, and the Office of Foreign Assets Control of the U.S. Department of Treasury.
Our goal is to advise clients on how to comply with the complex laws in these areas and on how to handle those situations where they have failed to comply. Toward this goal, we use our experience counseling on such matters as commodity jurisdictions, classifications, licenses, compliance programs and audits, as well as voluntary disclosures and enforcement actions.
Our international trade experience includes:
- helping companies obtain commodity jurisdiction determinations and necessary export licenses; make voluntary disclosures of violations of the export control laws; respond to agency investigations of violations; and implement export control compliance programs
- assisting companies when goods have been excluded or seized by the Bureau of Customs and Border Protection under violations of customs laws or other U.S. laws, including negotiations over return of seized property
- assisting importers in determining the correct classification and country of origin marking of imported merchandise, preparing customs compliance programs and counseling importers during customs audits, including audits under NAFTA by all three signatory countries
- representing U.S. petitioners and foreign respondents in antidumping and countervailing duty actions before the U.S. Department of Commerce, the U.S. International Trade Commission, the U.S. Court of International Trade and NAFTA panels; representative industries include lumber, cement, sulfanilic acid, magnesium, manganese sulfate, cookware, automotive replacement glass windshields and red raspberries
- represented a leading manufacturer of gloves for the health care industry in a patent infringement suit and a related ITC Section 337 investigation concerning nitrile gloves
- representing domestic and foreign interests before the Office of the U.S. Trade Representative, the U.S. Congress and WTO panels involving Section 201 “Safeguard” actions, Section 301 and the Generalized System of Preferences; representative industries include steel, wheat gluten and rubber chemicals.
International Dispute Resolution
Pepper is experienced in complex litigation in courts throughout the United States. We also engage in other forms of dispute resolution, including arbitrations under the rules of the American Arbitration Association, the International Center for the Settlement of Investment Disputes and the International Chamber of Commerce.
The resolution of international commercial disputes through arbitration and mediation continues to grow as international investment and trade continues to expand. Pepper has broad experience in this area, offering services that include:
- advising on international dispute settlement procedures and institutions
- drafting arbitration clauses and agreements
- representing respondents (defendants) and claimants (plaintiffs) before institutional or ad hoc tribunals
- enforcing awards pursuant to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards
- acting as party-appointees and neutral arbitrators
- serving as mediators in international mediation proceedings.
Our lawyers have participated in a wide range of disputes before various tribunals. Among the international arbitration matters on which Pepper lawyers have advised are:
- a dispute between a Chinese supplier and a U.S. purchaser over the effect of a “force majeure” clause in a commercial sales contract
- a claim by foreign investors against a host government for damages to a shrimp farm in South Asia following a civil insurrection
- presentation of contract claims on behalf of a U.S. engineering firm against foreign state agencies
- a dispute between a state-owned oil company and its partners in a joint venture project in Africa
- a breach of warranty claim by the purchaser of large building supplies against a Korean/Saudi joint venture manufacturer
- a claim against the Overseas Private Investment Corporation (OPIC) by a U.S. holding company for a “war-risk” expropriation loss incurred by a tire manufacturer in Zaire
- a dispute between a U.S. licensor and foreign licensee concerning the interpretation and application of a most-favored licensee clause.
Pepper lawyers are experienced in or have advised on proceedings before a variety of tribunals, including:
- International Chamber of Commerce
- American Arbitration Association
- London Court of International Arbitration
- International Center for Settlement of Investment Disputes (World Bank)
- Iran-United States Claims Tribunal.
Our team includes lawyers who have represented foreign governments, worked at the Office of the Legal Adviser at the U.S. Department of State, written and lectured on international arbitration issues, and served on delegations related to the application of international law among states.
Pepper’s international arbitration and mediation lawyers work with colleagues in the firm’s other practice areas, particularly in the fields of technology, construction/engineering, intellectual property and patent protection, environmental regulation, and energy and natural resource development. By combining the talents of lawyers experienced in the process of international arbitration and mediation with industry knowledge gained in a variety of fields, Pepper can better assist clients faced with international commercial disputes. We understand clients’ interest in resolving disputes in the fastest and lowest-cost manner, and we encourage them to pursue expedited procedures where feasible and appropriate.