Kenneth Juan Figueroa

Partner, Co-Chair, Latin America Practice - Washington, D.C.

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202.261.7386

202.785.6687

kfigueroa@foleyhoag.com Download vCard

Kenneth Juan Figueroa is a partner in the firm’s Washington office and a member of the International Litigation and Arbitration Department. He is the co-chair of the Latin America Practice.  He has substantial experience in international arbitration matters, particularly in Latin America. Kenneth has been consecutively recognized as one of Latin America’s “Top 100 Lawyers” by Latinvex: Latin America Business News & Analysis and has been listed among the top 20 in international arbitration practice. He has also been consecutively recognized by Who’s Who Legal in construction matters as a "Thought Leader" in the area and has also been recognized by Legal 500-USA.

Kenneth’s practice focuses on international disputes, particularly on investor-State matters, commercial arbitration, and sovereign representation as well as general advice regarding disputes prevention and resolution. He represents clients, including private and state-owned companies and foreign States and State-owned entities before U.S. federal courts and international arbitral tribunals, including those established under the auspices of the International Centre for Settlement of Investment Disputes (ICSID), the United Nations Commission for International Trade Law (UNCITRAL), the International Chamber of Commerce (ICC) and the International Center for Dispute Resolution (ICDR) among others.

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Education:

  • Columbia University School of Law, J.D. (study abroad at Universidad de Buenos Aires, Fall 2001), 2002
  • Yale University, B.A. (study abroad at Universidad Autónoma de Madrid, Spring 1996), 1997

Languages:

Spanish, Portuguese

Representative Experience

Investor-State Arbitration (ICSID/Additional Facility) 

  • APM Terminals Callao S.A. v. Republic of Peru. Representing the Republic of Peru in an ICSID arbitration arising from a concession contract for the design, construction, financing, maintenance and operation of the Multipurpose North Terminal of the Callao Port Terminal.  The claimant claims more than US$ 75.5 million.
  • Telefónica S.A. v. Republic of Peru. Representing the Republic of Peru in an ICSID arbitration initiated by a Spanish telecommunication company under the Spain-Peru BIT in connection to tax related measures adopted by the State. This is the fifth investment arbitration case in which we represent Peru.
  • Quanta Services Netherlands B.V. v. Republic of Peru (ICSID Case No. ARB/21/1). Representing the Republic of Peru in an ICSID dispute initiated by the Dutch subsidiary of Houston-based Quanta Services under the Peru-Netherlands Bilateral Investment Treaty, regarding the alleged wrongful termination of contracts to design, build and operate telecommunications networks in rural areas of Peru. 
  • Desarrollo Vial de los Andes S.A.C. v. Republic of Peru (ICSID Case No. ARB/20/18). Representing the Republic of Peru in a construction arbitration before ICSID, for alleged damages resulting from the inability to operate certain tolls due to massive social protests.
  • Webuild S.p.A. (formerly Salini Impregilo S.p.A.) v. Republic of Panama, (ICSID Case No. ARB/20/10). Representing the Republic of Panama in an ICSID arbitration under the bilateral investment treaty between the Republic of Panama and the Italian Republic, initiated by an Italian construction company regarding the expansion project of the Panama Canal.
  • Metro de Lima Línea 2 S.A. v. Republic of Peru (ICSID Case No. ARB/17/3). Representing the Republic of Peru in a complex construction arbitration commenced before ICSID related to the design, construction and operation of the underground metro line “Línea 2” in the city of Lima.
  • Anglo American Plc v. Bolivarian Republic of Venezuela (ICSID Case No. ARB(AF)/14/1). Representing the Bolivarian Republic of Venezuela in an ICSID (Additional Facility) proceeding brought by a major United Kingdom-based mining company under a bilateral investment treaty in connection with a nickel mining concession. The arbitral tribunal rejected the company's claims in its entirety, totaling close to US $400 million.
  • Pac Rim Cayman LLC v. Republic of El Salvador (ICSID Case No. ARB/09/12).  Representing the Republic of El Salvador in an ICSID proceeding commenced by the subsidiary of a Canadian mining company under DR-CAFTA and the Salvadoran Investment Law in connection with an application for a mining concession.  The Tribunal rejected all claims and ordered the Claimant to pay El Salvador the amount of US$ 8 million.
  • Highbury International AVV y Ramstein Trading Inc. c. República Bolivariana de Venezuela (Caso CIADI No. ARB/11/1). Represented the Bolivarian Republic of Venezuela in an ICSID proceeding brought by Dutch Antilles and Panamanian companies under bilateral investment treaties in connection with gold and diamond mining concessions, which resulted in a favorable award dismissing all claims.
  • Highbury International AVV, Compañía Minera de Bajo Caroní AVV, and Ramstein Trading Inc. v. Bolivarian Republic of Venezuela (ICSID Case No. ARB/14/10). Represented the Bolivarian Republic of Venezuela in a second ICSID proceeding brought by Dutch Antilles and Panamanian companies under bilateral investment treaties in connection with gold and diamond mining concessions. The case was suspended due to Claimants’ failure to make administrative payments.
  • TENARIS S.A. and TALTA – Trading e Marketing Sociedade Unipessoal Lda. v. Bolivarian Republic of Venezuela (ICSID Case No. ARB/11/26). Represented the Bolivarian Republic of Venezuela in an ICSID proceeding brought by European subsidiaries of an Argentine group under bilateral investment treaties with Luxembourg and Portugal in connection with the alleged expropriation of a hot briquetted iron (HBI) plant.  The Tribunal issued an award in which damages were reduced to less than a quarter of the original amount claimed.  Represented the Republic in rectification and annulment proceedings.
  • TENARIS S.A. and TALTA – Trading e Marketing Sociedade Unipessoal Lda. v. Bolivarian Republic of Venezuela (ICSID Case No. ARB/12/23). Represented the Bolivarian Republic of Venezuela in an ICSID proceeding brought by European subsidiaries of an Argentine group under bilateral investment treaties with Luxembourg and Portugal in connection with the alleged expropriation of their Venezuelan subsidiaries involved in the steel industry. The Tribunal issued an award in which damages were reduced to less than a third of the original amount claimed.  Represented the Republic in annulment proceedings.  
  • Crystallex International Corporation v Bolivarian Republic of Venezuela (ICSID Case No. ARB(AF)/11/2). Represented the Bolivarian Republic of Venezuela in an ICSID (Additional Facility) proceeding brought by a Canadian company under a bilateral investment treaty in connection with a mining operating contract.  The Tribunal issued an award in which damages were reduced to a third of the original amount claimed. Represented the Republic in subsequent proceedings to vacate the arbitral award before the United States District Court for the District of Washington, D.C.
  • Gold Reserve, Inc. v. Bolivarian Republic of Venezuela (ICSID Case No. ARB(AF)/11/1). Represented the Bolivarian Republic of Venezuela in an ICSID (Additional Facility) proceeding brought by a Canadian company under a bilateral investment treaty in connection with a gold mining concession.  The Tribunal issued an award in which damages were significantly reduced. Represented the Republic in subsequent proceedings to vacate the arbitral award before courts in Paris, France and to challenge enforcement proceedings in Luxembourg, London and Washington, D.C.

Investor-State Arbitration (UNCITRAL)

  • Yves Martine Garnier v. The Dominican Republic (PCA Case No. 2022-01).  Representing The Dominican Republic in an UNCITRAL arbitration initiated by a French national under the auspices of the Dominican Republic-France Bilateral Investment Treaty arising from the termination of a waste management concession agreement. 
  • Basilio Amorrortu v. Republic of Peru (CPA Case No. 2020-11). Representing the Republic of Peru in an UNCITRAL arbitration initiated by a former Peruvian citizen and current US national for alleged violations of the Trade Promotion Agreement between Peru and the United States for alleged irregularities in the bidding process in connection with the operation of oil blocks off the Peruvian coast.
  • Sacyr S.A. v. Republic of Panama (ICSID Case No. UNCT / 18/6). Representing the Republic of Panama in an UNCITRAL arbitration administered by ICSID under the Bilateral Investment Treaty between the Kingdom of Spain and the Republic of Panama initiated by a Spanish construction company related to the expansion project of the Panama Canal.
  • Rutas de Lima v. Municipalidad Metropolitana de Lima (ad hoc CNUMDI case) (“Rutas 1”). Representing the Metropolitan Municipality of Lima in an arbitration related to the reconditioning and operation of three sections of the North Pan-American Highway under a concession contract, including the installation of new tolls that led to major social protests. The case also involves corruption issues related to the Lava Jato case in Peru, since Claimant's majority partner was Brazilian construction company Odebrecht. Currently representing the Municipality in post-award processes, including interpretation processes and possible annulment process.
  • Rutas de Lima v. Municipalidad Metropolitana de Lima (Caso ad hoc CNUMDI) (“Rutas 2”). Representing the Metropolitan Municipality of Lima in an arbitration related to the reconditioning and operation of three sections of the North Pan-American Highway under a concession contract. This case, parallel to Rutas 1 was initiated by the Claimant to try to give effect to certain alleged agreements related to the increase of rates. The case also involves corruption issues related to the Lava Jato case in Peru, since the Claimant's majority partner was Brazilian construction company Odebrecht.
  • Constructora Makro v. Ministerio de Transporte e Infraestructura de Nicaragua (ad hoc CNUDMI case). Representing the Nicaraguan Ministry of Transportation and Infrastructure in a construction arbitration in which Claimant, a Mexican construction company, alleges the illegal termination of a contract for alleged reasons of force majeure related to social protests. 
  • Nova Scotia Power Incorporated v. Bolivarian Republic of Venezuela (PCA Case No. 2009-14). Represented the Bolivarian Republic of Venezuela in an UNCITRAL arbitration relating to the termination of a coal supply agreement, which resulted in a favorable award dismissing all claims.
  • Merck Sharp & Dohme Corp. v. The Republic of Ecuador (PCA Case No. 2012-10).  Representing the Republic of Ecuador in UNCITRAL proceedings brought by a U.S. company under a bilateral investment treaty in connection with a national court decision rendered against the investor in private litigation.

International Commercial Arbitration

  • Representing the Metropolitan Municipality of Lima in a case initiated according to the rules of the Paris Chamber of International Arbitration (PCIA) related to a concession contract for the construction and operation of the “Línea Amarilla” toll road. In this case, the Claimant tried to enforce certain formulas for readjustment and rate increases, it also involves corruption issues related to the Lava Jato case in Peru, since Claimant's majority partner was the Brazilian construction company OAS.
  • Representing the Metropolitan Municipality of Lima, who acts as claimant in a case initiated under the Paris Chamber of International Arbitration (PCIA) rules regarding the request for cancelling a concession contract for the construction and operation of the “Línea Amarilla” toll road and, alternatively, certain agreements in this regard, as well as compensation for damages suffered by the Municipality (LAMSAC Case 2). This case, as well as LAMSAC 1 involves social protests and corruption issues related to the Lava Jato case in Peru, since Claimant’s majority partner was the Brazilian construction company OAS.
  • Represented Corporación Dominicana de Empresas Eléctricas Estatales (CDEEE) regarding claims presented by a consortium led by a Brazilian company related to the construction and operation of a thermoelectric plant. He led the team in a parallel mediation process that managed to resolve the controversy and ensure the delivery of the plant in favorable conditions for our client.
  • Representing a Nicaraguan company in a dispute and eventual ICC arbitration against a Colombian company related to corporate issues in the energy sector.
  • Representing a Nicaraguan agricultural company in a dispute and in the eventual ICC arbitration against a Colombian sugar company related to a contract for agricultural land administration.
  • Representing a Nicaraguan company in a dispute and eventual ICC arbitration against a Colombian company related to corporate issues in the energy sector.
  • Represented a Spanish company in an ICC arbitration with respect to a contract for the supply of medical equipment.
  • Represented a major Mexican conglomerate in an ICC arbitration against its former joint venture partner in connection with a contract dispute.
  • Represented a State-owned petroleum company in ICC proceedings brought by a consortium in connection with a breach of contract claim relating to enhanced oil recovery techniques.
  • Represented a State-owned naval engineering firm in ICC proceedings in connection with breach of contract claims relating to improvements on military vessels.
  • Represented a major U.S. bank in a complex multi-party ICC arbitration, and related litigation in aid of arbitration, concerning the control of a major Brazilian telecommunications company.
  • Represented a Swiss financial index manager in an ICC arbitration against a U.S. company in connection with a licensing and intellectual property dispute.
  • Represented a Brazilian mining company in ICC proceedings against an Argentine shipping corporation in connection with a maritime dispute.
  • Represented a U.S. company in ICDR proceedings against a Chilean mining company concerning the breach of a copper supply contract.

Other Representation

  • Representation of a Salvadoran construction company in various litigations before U.S. federal courts against the project owner and project engineer, relating to breaches of a construction contract. 
  • Served as Respondent’s expert on the international law of damages in a commercial arbitration brought under the auspices of the Mexican Arbitration Center (CAM), relating to a dispute arising from the acquisition of major retail outlets.
  • Advising the Mexican entity CENAGAS (National Center for the Control of Natural Gas), responsible for the operation of the national transportation system and storage of pipelines, with respect to its international bidding documents and procedures.
  • Advised a state-owned electricity company with respect to the negotiation of a major contract amendment that ensured the completion of a construction project while segregating and reserving potential claims for determination in international arbitration. 
  • Defended a Mexican rubber producer in U.S. federal court and various state courts in connection with antitrust civil class actions by direct and indirect purchasers.
  • Advised a Mexican rubber producer in negotiations with the European Commission in connection with allegations of antitrust activity.
  • Advised and prepared a senior officer of a U.S. bank in connection with the presentation of testimony at hearings conducted by the Brazilian national congress to investigate the mensalão bribery scandal.
  • Represented a U.S. corporation in a prosecutorial investigation concerning alleged criminal conduct.
  • Represented the Central Bank of Ecuador in connection with sovereign debt restructuring.
  • Represented the Central Bank of a Guatemala in connection with the negotiation and execution of investment management and custody agreements.  
  • Assisted in the consultation and preparation of documents in connection with various project financings in Latin America, including in Brazil, Peru, Chile and Venezuela.  
  • Co-Author, "Arbitration Procedures and Practice in the United States: Overview," Practical Law Arbitration Global Guide: U.S., Thomson Reuters (June 2021) 
  • Author: “Comity Towards Nullity?: The New York Convention and Enforcement of Annulled Awards” ILSA Journal of International and Comparative Law (2019)
  • Author, “The Use of Experts in Common Law Jurisdictions", Construction Law International (CLInt) Quarterly Magazine (2019)
  • Author, “Jurisprudence Regarding the Most Favored Nation Clause: Attempting to Reach a Consistent Analytical Framework.” Investment Arbitration Forum: Developments and Trends. 1st ed. Sonia Rodriquez Jimenez, Herfield Woss, National Autonomous University of Mexico (2013) (Original In Spanish)
  • Co-author (with L. Shore), "Dissenting Awards:  Dissents, Concurrences and a Necessary Divide between Investment and Commercial Arbitration", 3:6 Global Arbitration Review 18-20 (2009)
  • Author, "Immigrants and the Equal Protection Regime: Parens Patriae Standing, Foreign Governments and Protection from Private Discrimination", 102 Colum. L. Rev. 408 (2002)

Honors

  • Harlan Fiske Stone Scholar
  • Columbia Law Review, Senior Editor
  • John M. Olin Junior Fellow in Law and Economics
  • Latin America’s Top 100 Lawyers, Latinvex
  • Who's Who Legal, Construction

Involvement

  • International Council for Commercial Arbitration (ICCA)
  • International Bar Association (IBA), Officer of the North American Forum
  • American Bar Association (ABA), International Law Section, Member of the Board of Directors of the Energy and the Environment Sub-Committee
  • District of Columbia Bar Association, International Law Section
  • American Society of International Law (ASIL)
  • Advisory Panel, ICCA Task Force on Damages
  • Speaker, III Investment Arbitration Forum, "Jurisprudence regarding the Most Favored Nation Clause: Attempting to Reach a Consistent Analytical Framework," Mexico City, September 2, 2010
  • Speaker, International Mining Professionals Society Luncheon, 60th Annual Rocky Mountain Mineral Law Institute, "Mining Disputes in Investor-State Arbitration: An Overview," Vail, Colorado, July 18, 2014.
  • Speaker, IBA Conference, Mining in Africa: Opportunities and Legal Challenges, “Stabilization Law and Agreements. The Enforceability of Stabilization Agreements,” Dar es-Salaam, Tanzania, September 8, 2014.
  • Speaker, 2nd. International Seminar on Investment Arbitration, “Evolution of the Agreements on Reciprocal Promotion and Protection of Investments relating to Indirect Expropriation,” Lima, Peru, October 2, 2014.
  • Speaker, Georgetown Law Center, International Arbitration Association, Risk Management and the Settlement of Investments Disputes: Focus on Infrastructure Projects in Latin America, “Infrastructure Projects and the Settlement of Investment Disputes: Contextualizing Matters,” Washington, D.C., February 5, 2015.
  • Speaker, Seminar: “International Arbitration in the Context of the Energy Reform”, co-organized with the Mexican Federal Fiscal Prosecutor’s Office, Mexico City, April 11, 2016.  
  • Speaker, ICC Conference on international Arbitration, Recent Modalities in International Arbitration Practice, “Third Party Funders in International Arbitration,” Santa Cruz, Bolivia, August 26, 2016.
  • Speaker, IBA Conference, 3rd Annual Investing in Africa Conference, Energy Prices and Investment in Africa: an uncertain prognosis, “Stabilization Clauses in the Energy Sector”, Paris, France, June 23, 2017.
  • Speaker, Closing Conference of the 5th International Arbitration Moot of Havana, “Damages in International Arbitration”, Havana, Cuba, July 14, 2017.
  • Speaker, 5th International Seminar on Investment Arbitration, “Third Party Funding: Issues and Concerns”, Lima, Peru, October 3, 2017.
  • Moderator, ILA/ILSA International Law Weekend 2017, “International Water Conflict and Cooperation: Grappling with the Allocation of Freshwater Between States in the Face of Climate Change”, Fordham University School of Law, New York, NY, October 20, 2017.
  • Moderator, ILA/ILSA International Law Weekend 2017, “The Changing Paradigm of Investment Protections in Latin America: Implications for Investment and Investor-State Arbitration”, Fordham University School of Law, New York, NY, October 21, 2017.
  • Speaker, ICC Young Arbitrator’s Forum, “Contracting with States: Recurring Conflicts. Reflections and Practical Tips”, Panama City, Panama, January 29, 2018.
  • Speaker, 6th Annual International Arbitration Month, “Analyzing the Complexities of International Construction Arbitration Disputes: An Attorney’s Approach”, Georgetown Law School, Washington, D.C. February 15, 2018.
  • Speaker, FIESP Morning Workshop: International Trade and Investment Arbitration: The Brazilian and International Experience, “Investment Disputes: The International Perspective and the Brazilian Model”, São Paulo, Brazil, March 14, 2018.
  • Senior Panelist, 60 Years of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards: Important Issues and Future Challenges, “Deference to Nullity? The New York Convention and the Enforcement of Annulled Awards”, University of Loyola Andalucía, Seville, Spain, April 5, 2018.
  • Speaker, XII Congress on International Arbitration, “Confidentiality or Transparency of Arbitral Proceedings,” Lima, Peru, April 25, 2018.
  • Speaker, 8th Conference on International Arbitration, “Recent Developments in Investment Arbitration”, Santa Cruz, Bolivia, June 8, 2018.
  • Speaker, Breakfast Workshop, National Association of Corporate Counsel (ANADE), “Are You Prepared for Commercial Arbitration in these Times of Change?: Essential Elements that Corporate Counsel Should Know”, Mexico City, July 11, 2018.
  • International Speaker, Buenas y Malas Prácticas de los Árbitros Nacionales: Confrontándolo con el Arbitraje Internacional, “Planificación del arbitraje: Discusión sobre las Notas de la CNUDMI sobre la organización de los procedimientos arbitrales," Faculty of Law of the Pontifical Catholic University of Peru (PUC), Lima, Peru, September 14, 2018.
  • Speaker, VI International Seminar on Investment Arbitration, “Corrupción en las inversiones y sus efectos en el arbitraje de inversión,” La Paz, Bolivia, September 28,2018.
  • Speaker, Annual Conference of the International Bar Association, "The Use and Misuse of Experts: Experts under the Common Law Threshold", Rome, Italy, October 11, 2018.
  • Moderator, ILA / ILSA International Law Weekend 2018: "The Investment Dispute Resolution System: A Happy New World or the Clock That Was Backward", Fordham University School of Law, New York, NY, October 19, 2018.
  • Speaker, "China Infrastructure in Latin America and the Caribbean: Perception and Reality," The Inter-American Dialogue, Washington, D.C., November 18, 2018.
  • Speaker, "The Arbitration of Controversies on Copyright and Related Rights: the International Perspective," CRECIG Symposium on Copyright and Related Rights in the Current World, Guatemala City, Guatemala, February 7, 2019.
  • Speaker, "Corruption in Investment Arbitration: the Relationship between Internal and International Juridical Orders in Jurisdiction and Fund Issues", XII International Arbitration Conference, Quito, Ecuador, April 4, 2019.
  • Speaker, International Congress on Commercial and Investment Arbitration, “Conflicts of Interest in International Arbitration,” Guayaquil, Ecuador, August 21, 2019.
  • Speaker, "How Technology Reduces Risks in Construction Projects in the United States and Latin America- Technology and Construction Arbitration" Society of Construction Law, Miami, September 12, 2019.
  • Speaker, "New Perspectives in Investment Arbitration", 3rd ICC Peruvian Arbitration Day, Lima, Peru, September 19, 2019.
  • Speaker, “Indirect Expropriation Against ICSID and Measures Equivalent to Expropriation. Complaints before ICSID,” VII International Seminar on Investment Arbitration, Santiago de Chile, September 24, 2019.
  • Speaker, "The History of Investor-State Arbitration in Latin America" - "Back to the Future: Reflections on the Last Decade of Investor-State Dispute Resolution", Month of International Arbitration, Georgetown University Law Center, Washington, D.C. February 11, 2020.
  • Speaker, "Investment Arbitration related to Infrastructure Projects in Latin America", Discussion on International Arbitration - Disputes in the Infrastructure Sector, Construction Law Society, Webinar, April 23, 2020.
  • Speaker, "Discussion - International Arbitration: Impact and Challenges Faced with Controversies in the Execution of Concession Contracts", State Arbitration Circle, Webinar, Lima, June 2, 2020.
  • Speaker, “State Defense in Crisis Situations,” Arbitration and Force Majeure: Implications in International Investment Controversies, La Libertad Chamber of Commerce, Perú, Online Conference, June 10, 2020.
  • Speaker, “Position of the State in Controversies on Energy Sector Regulations” Experiences in Arbitration of Investment in Energy Matters, ICC YAF, Mexico, Webinar, June 8, 2020.
  • Speaker, “Legal Skills in International Arbitration”, 9th edition, Peruvian Institute of Arbitration, Webinar, July 20, 2020.
  • Speaker, “The Defense of the State and Loi de Police”, Public Policies of States and their Consequences: New Investment Arbitrations,” VIII International Seminar on Investment Arbitration, Peruvian Institute of Arbitration, Virtual Conference, July 20, 2020.
  • Moderator, I International Congress on Construction Law, “Claims: Concession Contracts vs Public Works Contracts”, Peruvian Institute of Arbitration, Peru, Virtual Conference, November 16, 2020.
  • Speaker, I International Conference on Mechanisms for the Protection of Investments and Investment Arbitration, “The Washington Convention for the Settlement of Investment Disputes and ICSI” Peruvian Institute of Arbitration, Peru, Virtual Conference, August 11, 2021  
  • Speaker, VII International Workshop on Business Law:  International Commercial Arbitration and its Challenges, “The Challenges of Parallel Proceedings”, Universidad de la Sabana, Colombia, Virtual Seminar, October 21, 2021.
     
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Bar Admissions

  • District of Columbia
  • New York

Court Admissions

  • U.S. District Court for the Southern District of New York
  • U.S. District Court for the Eastern District of New York
  • U.S. Court of Appeals for the Second Circuit
  • U.S. District Court for the District of Columbia
  • U.S. Court of Appeals for the District of Columbia Circuit
  • U.S. Supreme Court