Guiding Foreign Governments Through the Complex Intersection of Business, Law, and Foreign Policy: The Rising Importance of Washington Counsel

• Author: Thomas Hale Boggs, Jr. - Robert S. Kapla - Kristen M. Jarvis Johnson
• Position: A.B. Georgetown University (1961); L.L.B. Georgetown University Law Center (1965) - B.S. Indiana University (1994); J.D. University of Denver Sturm College of Law (2002) - B.A. Michigan State University (2002); M.A. American University School of International Service (2007); J.D. American University Washington College of Law (2007)
• Pages: 28-42

B u s i n e s s L a w B r i e f | S p r i n g / S u m m e r 2 0 1 02 8

I. INTRODUCTION

If you don’t know where you are going, every road will get you

nowhere. – Henry A. Kissinger

Successfully navigating the intricate roads of Washington

requires an experienced guide, particularly for foreign

sovereign governments. What occurs in Washington can

have a profound impact in foreign capitals. As the world grows

smaller, faster, Washington’s impact has escalated. Not unlike

many business interests, foreign sovereign governments large and

small learned long ago that a key component to their foreign pol-

icy must be a defined and active Washington strategy that reaches

beyond their traditional diplomatic efforts. As a result, analyzing

the increasingly complex regulatory and political environment

of Washington—once reserved exclusively for U.S. interests—is

now considered standard due diligence for many foreign govern-

ments and interests, including state-owned enterprises, sovereign

wealth funds, and the like.

It has long been recognized that a government’s foreign

policy often involves, directly or indirectly, the strategic and

financial goals of certain business interests. Fulfilling a foreign

government’s objective—for example, improving its business

climate to attract U.S. investment—can quickly ripple into mul-

tiple complex legal matters involving business-related issues of

tax, trade, customs, intellectual property rights, export controls,

labor and environment protections, and human rights. Rep-

resenting foreign sovereign interests therefore spans from pure

legal issues to political matters. For example, a foreign sovereign

interacting on U.S. soil or conducting activities that expose it to

U.S. law may need advice ranging from high-level policy counsel,

to complex commercial litigation involving issues of sovereign

immunity, to traditional real estate and tax law issues. The U.S.

laws, regulations, and policies governing these and other subjects

constantly change, making them difficult to identify, let alone

interpret. Politics, of course, can add complications and blur the

lines that separate credible reform from political rhetoric. The

financial reform campaign currently under way in Washington

is just one, albeit timely, example. In short, while many foreign

governments are capable of navigating Washington, far fewer

possess dedicated Washington strategies that enable them to

separate wheat from chaff to successfully advance their foreign

policy objectives.

What makes a Washington strategy productive? Football

coaches use the term “game-changer” to describe a specific

play or moment that changes the course of a game. A foreign

government’s ability to identify where its foreign policy objec-

tives intersect—or can intersect—with the law and with the

strategic and financial goals of the U.S. business community, can

generate game-changing results. Properly utilized, such align-

ments enhance a foreign sovereign’s ability not only to operate

effectively in Washington but also to proactively advance its key

objectives with the U.S. government. The ability to identify and

capitalize on a game-changer is a unique skill and can spark a

successful Washington strategy.

This article describes, from a practitioner’s viewpoint, how

the changing political and regulatory scheme in Washington can

play a considerable role in the outcome of a foreign government’s

policy objectives with the United States. As the article maintains,

successfully engaging this intersection of business, law, and for-

eign policy requires a combination of traditional diplomatic and

lobbying efforts, targeted support from relevant business and

other stakeholders, and a substantive understanding of the legal

and political elements involved. The article concludes that for-

eign sovereign governments have increasingly turned to Washing-

ton counsel to advise them on successfully traversing these issues.

Guiding Foreign Governments Through the

Complex Intersection of Business, Law, and

Foreign Policy:

The Rising Importance of Washington Counsel

By: Thomas Hale Boggs, Jr.†, Robert S. Kapla††, Kristen M. Jarvis Johnson†††

A foreign government’s ability to identify

where its foreign policy objectives intersect—

or can intersect—with the law and with the

strategic and financial goals of the U.S.

business community, can generate game-

changing results.