Washington Lawyer - August 2017 - 28

"The question for law firms is,
how are you going to respond to
globalization? Are you going to put
boots on the ground in all of those
jurisdictions, or are you going to
go at it in a different way?"
Partner, Sidley Austin LLP

"When I started practicing law, it was all U.S. and
European companies going out into these jurisdictions doing business, and the U.S. and UK lawyers
followed them and the rules of the game were
pretty simple. The U.S. and the European companies had the capital and the know-how, and you
negotiated the terms of the deployment of that
capital and know-how in whatever jurisdiction
you were in," says Rick Burdick, chair of the global
energy and transactions group in Akin Gump
Strauss Hauer & Feld LLP's Washington office and
managing partner for the firm's international offices.
"Now you look at it 30 years later, and this is
reflected in the way we are doing business, too.
You've got Indian companies doing business all
over the world. You've got sovereign wealth investors from the Middle East doing business all over
the world. You have Chinese companies doing
business all over the world," says Burdick, who
made a name leading Akin Gump's legal team
that completed ConocoPhillips' 2005 purchase
of a 7 percent stake in Russia's Lukoil.
Like many of its competitors in Washington and
globally, Akin Gump has offices in Abu Dhabi,
Dubai, Beijing, Singapore, Hong Kong, London,
Frankfurt, Geneva, and Moscow. Burdick readily
confirms that cross-jurisdictional legal regimes
have affected the practice of law in Washington.
The macro data on global growth in international
trade in goods and services and in foreign investment flows are staggering. Global trade in goods
and services amounted to an estimated $21 trillion
in 2015, up from about $15 trillion in 2009, according
to the Geneva-based World Trade Organization,
which publishes an annual report. With that kind
of money in play, and the fate of jobs and national
industries at stake, world governments are asserting
increasing regulatory control. For D.C. firms that
have waded into international law successfully, it


* AUGUST 2017 *

has meant increases in annual firm-wide revenue
on the order of $1 billion.

Lex Eley, a partner in Crowell & Moring LLP's
Washington office who specializes in international
mergers and acquisitions, says there's more regulation and more communication among regulators
than there used to be. The parties, the regulators,
and the industry participants are more sophisticated than before, according to Eley.
"The regulatory aspects of a transaction are more
important now than they were before. If you look
at everything from the competition aspects to the
regulatory aspects, the import-export aspects,
technology, the CFIUS [Committee on Foreign
Investment in the United States] investigations
with foreign entities buying entities in the United
States, that's more important now. Anti-corruption
regulations around the world are more important,"
says Eley.
Emblematic of how U.S. law firms developed their
international practices by following their clients
abroad, Eley began his international career opening
a Brussels office for McGuireWoods to support
the 1986 multinational expansion overseas by
the James River Corporation, which made the
Richmond, Virginia-based company the world's
largest paper manufacturer at the time.
Nowadays, Eley says, clients expect to spend more
on regulatory counsel and regulatory advice than
they have in the past, and that is particularly true
in international transactions. A U.S. company buying
a business in Europe or in Asia, for example, has to
think about the regulatory overlay. Navigating those
regulatory regimes, making them mesh, is an
important key to international transactions.

For example, in March the European Commission
approved the proposed $130 billion merger
between U.S.-based chemical giants Dow and
DuPont, contingent on asset divestitures. Approval
of the massive deal, with global competition
implications, was still pending before U.S. antitrust
authorities as of this writing.
Separately, the EU blocked a proposed merger
between Deutsche Börse, which owns the Frankfurt
Stock Exchange, and the London Stock Exchange.
A raft of other global deals is subject to overlapping
EU and U.S. antitrust review - and that's just one
area of cross-border jurisdictional complexity.

"We are seeing with globalization that the world
is shrinking, and as a result you have countries and
economic actors that are operating across borders
more than ever before, and you have investors that
increasingly are looking for opportunities all over
the planet," says Javier Rubinstein, a partner in the
international arbitration and dispute resolution
practice at Kirkland & Ellis LLP in Chicago.
"The world is hyper-connected. Because of the
Internet and social media, things that happen in
one place have immediate ramifications all over
the world. What that has done, from a legal practice
perspective, is put a lot more pressure on our
international legal systems to be able to accommodate these changes. We are starting to see some
of the effects of that," says Rubinstein, who
was vice chair and global general counsel of
PricewaterhouseCoopers from 2006 to 2016
prior to joining Kirkland.
"It has really caused the constructs of international
law to be stress-tested to be able to handle the
kinds of cross-border disputes that we are seeing
with greater frequency," Rubinstein says.
For the uninitiated, Rubinstein is referring to the
international system for resolution of investor-state
disputes, which today is largely based on the 1966
ICSID Convention - the International Centre for
Settlement of Investment Disputes - of the
World Bank.
Several recent developments signify a changing
era in international trade and dispute resolution. For
instance, after a 15-year isolation from world financial markets, Argentina is returning to borrowing
after working out debt defaults through arbitration,
disputes that Rubinstein was involved in resolving.
Last year a Dutch company and a Luxembourg
company won recoveries of investments in a
Spanish solar energy producer through international arbitrations. There are concerns for holders of
Venezuelan bonds and some Brazilian debt. India is
presently undertaking a rewrite of all its foreign
investment treaties with 57 trading partners in
ways that revise the avenues of foreign investors
to recoup losses. Importantly, the EU has advocated


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