X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
The economic turmoil in Argentina and the brewing international legal fights associated with corporate failures and national currency devaluation in that country likely will give a boost to the growing field of alternative dispute resolution. Miami in particular has become an important venue for arbitration proceedings. Many of the cases resolved using ADR in Miami have involved disputes in which neither party is located in the United States, says Burton Landy, chair emeritus of the international law practice at Akerman Senterfitt in Miami. In one of Landy’s cases, two Argentine companies brought their arbitration to Miami even though it was decided under Argentine law. “We had no trouble putting together a panel of three lawyers who all spoke Spanish and were familiar with the laws of the country,” he says. “It was a major case, and from start to finish it took one year. If it had gone to court in Argentina, it would have taken a minimum of three years and a lot of aggravation.” Given Miami’s positioning as the business gateway of the Americas, Landy says, the city is a natural forum for cross-border arbitration. “The basic advantage of ADR is that the parties have more influence, more control over the proceedings and how they go forward,” says Peter Lanston Fitzgerald, a law professor at Stetson University. “When you’re dealing with disputes across international borders, and you are not familiar with the foreign judicial system, the ability to have some voice in how the case is handled is a major advantage.” Statistics show a growing recognition of this reality. According to Albert J. Orosa, regional vice president for South Florida and the Caribbean for the American Arbitration Association, probably the world’s biggest provider of ADR services, the number of international arbitration cases administered by the organization increased by more than 200 percent from 1995 to 2000 and grew by another 20 percent in 2001. Globalization has made an increase in cross-border commercial disputes inevitable, Orosa says. Multinational firms don’t like to gamble with unfamiliar and possibly capricious judicial systems. To avoid that risk, he says, two-thirds of Fortune 500 companies now include clauses in their international contracts that provide for alternative methods of settling disputes. The most basic form of ADR is direct negotiation between the parties. If that doesn’t solve the problem, the would-be litigants can opt for mediation with a neutral third party acting as go-between. The mediator typically has no power to decide who’s right. The final option is arbitration, with one or more appointed attorneys acting as judges who have the power to impose binding final decisions. Arbitration is what most attorneys have in mind when they talk about ADR, although many Florida lawyers are now vigorously pressing for more use of mediation, in which Florida already is a national leader. Whichever ADR procedure is used, the main objective is the same: to keep the fight out of the courtroom. In international disputes, the benefits often are even greater than in local disputes. “Going to court is slow, it’s expensive and unfortunately, in many countries, corrupt,” Landy says. John Charles Bierley, a partner at Smith Clark Delesie in Tampa, agrees: “International litigation, generally speaking, is a quite unrewarding process for all concerned.” YOU CHOOSE When two parties agree to arbitration, they can specify the terms of the procedure. They can choose the country where the arbitration will take place, the language to be used, the national law that will govern, the procedural rules and even, to large degree, the identity of the arbitrators. “That’s a lot better than having to go before an unknown judge of unknown ability and even unknown integrity,” says Landy. Equally important is the fact that the rules themselves are usually much more flexible, less time-consuming and therefore less expensive than those of most judicial systems. And sometimes the biggest advantage of all may be the privacy and confidentiality of arbitration. There are no records that must be made public and no reason for any angry charges to appear in the news media. Bierley adds that secrecy often improves the prospects for a settlement. “When a lot of bloody facts or allegations of wrongdoing are made in a public forum, the inclination of the parties is to defend themselves,” he says. “They sometimes even hate to settle, because if they settle, they look like they did what was alleged. You don’t have that in arbitration.” Mediation, an even less cumbersome and adversarial procedure, has been actively promoted by both the Florida Supreme Court and the state Legislature since the late 1970s. Although mediators are facilitators rather than decision-makers, they can be very effective at influencing a settlement, says Todd Gerard Kocourek, a solo practitioner in Tallahassee and past chairman of the Florida Bar’s executive council on international law. “Good ones have a way of shaking parties off of their hard-line positions and filling their minds with the fears and the doubts of the possible consequences of the case going badly,” he says. “When they do that successfully, people are much more inclined to settle.” Mediation already has gotten a solid foothold in Argentina. Firms there now are required by law to try mediation before they are permitted to file a lawsuit. The legislation requires licensed attorneys to do the mediating. That has brought several dozen Argentine lawyers to Miami for training in mediation techniques. REASONS NOT TO AVOID ADR Why do any disputes wind up in court with so many benefits to be gained from ADR, particularly in the international arena? “Usually,” says Drucilla E. Bell, a Largo solo practitioner who focuses on international cases, “it’s because one side or the other has some sort of perceived advantage that it doesn’t want to surrender.” One good example, she notes, is when a party prefers to try a case in its own national courts. A disparity in economic power is another good reason to head for court, says Lawrence D. Gore, incoming chairman of the Florida Bar’s international law council and a partner at Gore Bell & Stults in Fort Lauderdale. “In the travel industry,” he says, “airlines and cruise lines, which are usually much stronger financially than their agents or passengers or suppliers, are not particularly favorable to ADR. They like that advantage.” Even so, there’s little doubt that use of ADR will continue to grow rapidly. More and more lawyers are writing arbitration clauses into their clients’ commercial contracts. Although judges sometimes order arbitration of cases before them, usually arbitration requires the agreement of the parties and once the fight has reached the lawsuit phase, it’s almost impossible to get an agreement on anything. “There’s usually no trust left,” says Kocourek. “By the time it gets to litigation, you really don’t have a relationship anymore.”

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.