As arbitration rapidly becomes the preferred form of dispute resolution throughout Latin America, lawyers, multinational corporations and governments are grappling with myriad challenges as they set up and seek to enforce arbitration clauses.
Among the challenges are what venue to choose, what arbitrator to choose, how local courts respond to arbitration and whether they honor rulings, which countries take a broad interpretation of arbitration and whether to arbitrate under the International Chamber of Commerce’s International Court of Arbitration or another forum.
The themes were explored at two Miami conferences on the topic of Latin American arbitration and business in the past week, the U.S. Latin America Legal Summit held by ALM, the Daily Business Review’s parent, and Akerman Senterfitt and the International Arbitration in Latin America conference sponsored by the ICC International Court of Arbitration.
The conferences underscored Miami’s growing recognition as a popular locale for international arbitration. The city was chosen to host the International Council for Commercial Arbitration’s biennial conference in 2014.
Catherine Jones, general counsel for Virgin Mobile Latin America, noted her company considers “where the assets are” before choosing a venue for arbitration
“You don’t just want a pretty piece of paper,” she said. “You may want to sue locally.”
Every Latin American country is different, she noted, adding, “don’t assume anything.”
The ICC International Court of Arbitration is increasingly turning to Miami as a venue for its cases. The organization seated 42 cases in 2012, according to Josefa Sicard-Mirabel, the ICC’s North American director of arbitration and alternative dispute resolution. Of those, 22 were held in New York, and nine in Florida including six in Miami.
The advantage for Miami is “Miami being Latin America but not Latin America, and Miami being the United States but not the United States,” Sicard-Mirabel said.
John Rooney, a Miami solo practitioner and arbitrator, considers Miami “a very friendly venue.” He attributed this to the fact that in 2010, the state adopted the Florida Arbitration Act to substantially match the U.N. Commission on International Trade Law’s model law on international commercial arbitration, which arbitrators say provides a more uniform arbitral process. Six other U.S. states—Illinois, Texas, California, Connecticut, Oregon and Louisiana—follow the same model.
‘Trust In Arbitration’
Florida’s federal judiciary also is respectful and knowledgeable of the international arbitration process, Rooney said.
“When you put these things together, it does create a good environment,” he said.
Additionally, it’s easy to get Spanish- and Portuguese-speaking practitioners in Miami, Rooney noted.
The Dominican Republic has chosen New York, Miami and London as venues for arbitration, noted Leidylin Contreras, deputy counsel to the president of the Dominican Republic. How does the country decide where to seat its arbitration?
“We look at how local courts respond to arbitration,” Contreras said.
However, Angelica Nunez Anicao, director of legal affairs for Spain’s Repsol-Gas Natural LNG said the energy company has a different criterion. It looks for a neutral locale, typically London, she said.
When asked whether the parties ever choose to resolve disputes in local courts over arbitration, all said they prefer arbitration hands-down despite the fact they must waive a right to appeal.
Since 1974, Repsol has included arbitration-only clauses in all contracts, Nunez Anicao said.
“As an oil and gas company, we trust in arbitration,” she said. “Nobody wants to go through an appeal. We accept the arbitrators’ word as it is.”
Not surprisingly, Sicard-Mirabel promotes arbitration.
“There are clear advantages to arbitration over litigation,” she said. “You can choose the place you want, the language you want. We now have 147 country members.”
Additionally, she noted that while other dispute resolution groups only allow investors to bring claims, ICC allows both parties—sovereigns and investors—to file claims so “you’re on even footing.”
When choosing an arbitrator, parties said they try to pick someone who understands public policy and with whom they feel comfortable.