Legal Expertise

Mark heads MSK’s International Dispute Resolution practice. He and his team specialize in handling disputes between private parties and sovereign governments in US court litigation and international arbitration. He has a distinctive record of finding effective solutions to intricate, and often cutting edge, legal problems involving international investments and contracts. Mark has extensive experience with the Foreign Sovereign Immunities Act (FSIA) – which governs all lawsuits against foreign states and state agencies in U.S. federal and state courts. He also has handled a variety of arbitration-related matters under the New York Convention on Recognition and Enforcement of Foreign Arbitral Awards, including motions to compel arbitration and petitions to enforce arbitral awards.

Representative Matters

Current Cases

• TIG Insurance Co. v. Republic of Argentina (D.D.C. pending): Obtained precedent-setting appellate victory for a U.S. judgment creditor seeking to enforce international commercial arbitration awards against a foreign state. 967 F.3d 778 (D.C. Cir. 2020).  Decision reversed District Court’s holding that the FSIA’s exception to execution immunity of foreign state property requires its use for commercial activity in the United States both when the litigation commences and when the Court grants the writ of execution. The Court of Appeals reversed, adopting TIG’s arguments for a new Circuit rule requiring district courts to consider the totality of the circumstances at the time of filing the enforcement action, and not at a later date. This precedent greatly reduces the risk that a foreign state debtor can defeat a judgment creditor’s enforcement action by halting the commercial use of their property after the enforcement litigation has begun. 

• Mady Marieluise Schubarth v. Federal Republic of Germany and BVVG, No. 1:14-cv-02140 (D.D.C.): Won D.C. Circuit appeal  that reversed (in part) the District Court’s dismissal of a U.S. citizen's claims for compensation for the expropriation of her family estate in the former East Germany, connected to events in the aftermath of WWII. Schubarth v. Fed. Republic of Germany, 891 F.3d 392 (D.C. Cir. 2018). On remand, Schubarth seeks a judgment for expropriation damages against the BVVG, a company created by the German government to own, operate, and sell expropriated property.  If a judgment is received but not paid voluntarily, Schubarth may seek to enforce the judgment against property owned by the BVVG in Germany and property owned by Germany and used for a commercial purpose in the United States.

Concluded Cases

• John Doe A-1 To A-49 et al v. Democratic People’s Republic of Korea, 2021 WL 723257 (D.D.C. Feb. 24, 2021). Obtained judgment for $2.3 billion (half compensatory, half punitive) against North Korea on behalf of crew members of the USS Pueblo and their immediate family members for the physical injuries and emotional trauma they suffered from the January 1968 unprovoked attack on the Pueblo in international waters, and North Korea’s holding the crew hostage and subjecting them to torture for 11 months.  North Korea did not defend and the Court entered a default judgment under the 2008 federal Terrorism Statute, which gives U.S. victims of state-sponsored terrorist attacks the right to sue a foreign nation for injuries caused by its sponsorship of those attacks.  Plaintiffs are eligible to recover a portion of their judgments from payments by the U.S. Victims of State-Sponsored Terrorism Fund.  Congress created the Fund in December 2015 to address the difficulties American victims encounter when trying to enforce court judgments against foreign states that sponsor terrorist attacks.
• Robert C. Allan, et. al. v. Islamic Republic of Iran, 2019 WL 2185037 (D.D.C. May 21, 2019). Won $349 million in compensatory damages for 108 passengers and family members based on the June 1985 hijacking of a commercial flight (TWA 847) by Hezbollah terrorists.  The District Court found that Iran had financed, supported, trained, and guided Hezbollah for the purpose of using terrorist hijacking to promote a largely anti-Semitic and anti-American agenda. He also held the passengers and their families were entitled to be compensated for the physical injuries and emotional trauma they suffered. Iran did not defend and the Court entered a default judgment under the federal Terrorism Statute.  Each of the 108 plaintiffs has received partial payment of their judgments from the USVSST Fund and will remain eligible for future payments by the Fund.
• Estate of John McCarty v. Islamic Republic of Iran, 2020 WL 7696062 (D.D.C. Dec. 28, 2020): obtained judgment against Iran for $59 million for an additional 40 passengers and immediate family members who were victims of the TWA Flight 847 terrorist hijacking in 1985.
• Hardy v. India: successfully defended India against a U.S. oil company’s attempt to convert a foreign arbitral award into an enforceable federal court judgment. India’s defense raised rarely litigated questions regarding the New York Convention’s “public policy” exception to recognition and enforcement of foreign arbitral awards. The district court adopted India’s defense that it would violate U.S. public policy to enforce an arbitral award compelling a foreign sovereign to enter into a concession agreement for development of its offshore gas and oil resources, and imposing a rapidly escalating financial penalty to coerce compliance. Hardy appealed to the D.C. Circuit but withdrew the appeal before briefing. Hardy Exploration & Production (India), Inc. v. Gov’t of India, Ministry of Petroleum and Natural Gas (314 F.Supp.3d 95 (D.D.C. 2018).
• McKesson v. Iran: successfully obtained judgment for an American company whose investment in an Iranian dairy was expropriated after the Iranian Revolution. McKesson won $30.6 million against Iran after two bench trials, Iran’s seven DC Circuit appeals, and Iran’s three unsuccessful petitions for Supreme Court review. McKesson Corp. v. Islamic Republic of Iran, 672 F.3d 1066 (D.C. Cir. 2012), cert. denied, 568 U.S. 1229 (2013). What began as an arbitration at the Iran-U.S. Claims Tribunal in 1982 transformed into precedent-setting FSIA litigation in U.S. court of epic proportions, lasting 26 years.
• Ecuador v. Chevron: Represented Ecuador in defense of suit by Chevron to enforce a $96 million arbitral award. Ecuador’s novel defense to enforcement was jurisdictional, relying on an FSIA immunity provision applicable only if Ecuador agreed to arbitrate the dispute underlying the award. Ecuador contended it never agreed to arbitrate claims relating to an investment that ended before the US-Ecuador investment treaty took effect. The D.C. Circuit affirmed the district court's reliance on findings of international arbitrators to establish jurisdictional facts. It also held that the foreign sovereign, not the plaintiff, bears the ultimate burden of proof on sovereign immunity. Republic of Ecuador v. Chevron Corp. and Texaco Petroleum Co., 795 F.3d 200 (D.C. Cir. 2015), reh’g den. (September 28, 2015), cert. denied (June 6, 2016).
• Orkin v. Swiss Confederation and Museum Oskar Reinhart am Stadtgarten, 770 F. Supp. 2d 612 (S.D.N.Y. 2011), aff’d 444 F. App’x 469, 471 (2d Cir. 2011). Successfully represented Swiss government and government-owned art gallery in suit for possession of a Van Gogh drawing sold by plaintiff’s grandmother in Berlin in 1933 to a Swiss collector and eventually bequeathed to the Swiss government. Complaint alleged the drawing was a "flight asset" (sold to finance a Jewish family’s escape from Nazi-controlled Germany) for which good title could not be acquired under international law. Obtained dismissal on FSIA grounds.
• Chevron v. Ecuador: Collaborated with a team of partners and associates representing Ecuador in a PCA investor-state treaty arbitration. Chevron claimed Ecuador should pay a $9 billion judgment against Chevron issued by Ecuadorian courts in an environmental suit, plus Chevron’s legal fees reportedly in the range of $1-2 billion. Chevron Corp. and Texaco Petroleum v. Ecuador (PCA Case No. 2009-13).
• Lead appellate counsel for a U.S. investor in Ecuadorian aqua-culture business in appeal from district court judgment recognizing and enforcing an ICC arbitral award rendered by sole arbitrator. Object of appeal was to obtain remand for discovery to explore arbitrator’s failure to disclose ties to opposing party’s arbitration counsel. Federal Deposit Insurance Corporation, as Receiver for Republic Federal Bank, N.A. v. IIG Capital LLC, 12-10686 (11th Cir. 2013).
• Lead counsel representing the Israeli manager of Las Vegas-based real estate limited partnerships in an ICDR arbitration brought by one of Israel’s largest construction magnates. Joined case as lead counsel after sole arbitrator resigned on self-created conflict of interest following five years of arbitration. Obtained dismissal of all claims against client and award of $1 million in legal fees, which were collected. Yossi Avrahami v. Dotan Melech, Claim 50-181-T00078-08 (ICDR 2012).
• Ochoa Lizarbe v. Rivera-Rondón, 642 F. Supp. 2d 473. (D. Md. 2009), aff’d 2010 U.S. App. LEXIS 19739 (4th Cir., Sept. 22, 2010): represented survivors of a 1985 massacre in Peru’s highlands seeking damages from a former Peruvian Army officer for alleged acts of torture, extrajudicial killing and crimes against humanity. Defeated motion to dismiss on FSIA immunity grounds. Defendant was deported to Peru where he was tried for crimes under Peruvian law.

Honors & Awards

• Chambers Global: International Arbitration
• Chambers USA: America’s Leading Lawyers for Business (International Arbitration)
• Euromoney’s Guide to the World’s Leading Experts in Commercial Arbitration
• Legal Media Group: Best of the Best (International Arbitration)
• Washingtonian Magazine: Top Lawyer (International Law)
• Super Lawyers: International Lawyer (2013-2022)

Other Career Experience

• Georgetown University Law Center, Adjunct Professor (2010-2022), teaching graduate seminar on Investor-State Dispute Resolution
• Partner at Winston & Strawn LLP, Partner, Global Co-chair of International Arbitration Practice (2011-2016)
• Morgan, Lewis & Bockius LLP, Partner, Head of International Arbitration and International Regulatory practices (1986-2011)
• Wald, Harkrader & Ross, Associate (1979-1986), working on cross-border litigation and arbitration of claims at the Iran-U.S. Claims Tribunal by U.S. companies seeking compensation against Iran arising out of the Iranian Revolution

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Events & Speaking Engagements