Pedro Maciel heads the litigation and arbitration practice and handles complex international and domestic disputes. He focuses on advising foreign and Brazilian companies in various sectors such as banking, construction, energy, entertainment, mining, oil and gas, and telecommunications. Pedro specialises in corporate, infrastructure and construction disputes. He is also an expert in crisis management, focused on achieving the best results for his clients. His experience as a lawyer is also enhanced by his continued handling of disputes as an arbitrator in Brazil and abroad. Pedro obtained his law degree from the Federal University of Rio de Janeiro. His early career highlights include nearly two years as an associate in the international practice group of a leading US law firm, where he gained knowledge of international business transactions and IT.
Questions & Answers
Thought Leaders 2018 - Interview with Pedro Maciel
Why did you decide to become a lawyer?
Before I decided to go to law school, I started studying engineering. I believed that working as an engineer, I would be solving problems, which I always thought was my calling. Even though I had good grades, I quit the course because I didn’t see myself as an engineer. It was at that moment that I decided to pursue my career in law. I was effectively taken with the idea of going back to study matters in which I was genuinely interested.
What was behind your decision to specialise in arbitration?
From the beginning, I liked solving problems so going to a disputes practice was natural. When I started practising law, the charming and interesting arbitration practice did not exist in Brazil. There was litigation, which I always liked. I worked with people; I had to know the cases very well, along with the civil law system or any other law framework in which I was working at that moment; and I worked with different cases every day. It was the opposite of repetitive work, since there was always a challenge. I always loved the assortment of cases.
To be a dispute resolution lawyer in Brazil is the opposite of monotony. It demands skills, aptitude and the ability to move between subjects with ease, and I always liked that. Arbitration started by accident, for the international practice was not that relevant to a lawyer of my generation. I always served foreign clients who had disputes in Brazil, and what was important back then was knowing English and how to communicate effectively. But, after my studies, I decided that I wanted to work in the US and better understand the big law firm culture. It was 1999, and I had to work in a practice other than litigation. In that time, there was no international arbitration market for Brazil, so I started working with M&A and international commercial contracts.
When I came back to Brazil, between the end of 2000 and the beginning of 2001, it was a time of many important and memorable corporate disputes in the country. They were disputes among shareholders in traditional public companies. I had acquired a strong knowledge in corporate law to work with M&A in the US, and I had also developed a contracts practice in construction and infrastructure. All that was essential because, when the first arbitrations appeared, they were on exactly these matters. They were big corporate disputes regarding either construction or infrastructure. I was there, I had the skills at hand to work with international law firms, representing international and even Brazilian clients in relevant disputes regarding infrastructure and construction, and corporate disputes. That was how I started to work with arbitration.
Arbitration work for those who like being a lawyer is captivating, because the concept in comparison to common litigation in Brazil is very different. In arbitration, I had to learn to develop other skills, such as the presentation and overall conducting of a case and negotiation procedures. I also had to hone my ability to find and cross-examine witnesses.
To practise arbitration, a proficient lawyer must be able to predict what is going to happen, even in the case as a whole. Moreover, he or she needs a thorough understanding of the case and the business of the client. This is really what attracts me, and what makes the arbitration practice so interesting and pleasant.
What has been the most exciting arbitral dispute you have worked on during your career and why?
Throughout my career, I worked on many interesting cases. One of them, which was very important, was Alliant Energy v Cataguases-Leopoldina, a huge complex corporate dispute. It involved many arbitrations and many legal proceedings. That case, which is certainly one of the most memorable for me so far, happened at the beginning of my professional career, and I worked with some US law firms, and against some Brazilian and US law firms.
Another important case was GTI v Varig Log Matlin Petterson, an international arbitration that became famous for some of the questions raised by the arbitrators, and created discussions in Brazil and abroad.
In your opinion, what are the biggest challenges facing arbitration practitioners in Brazil at the moment?
For lawyers, the biggest challenge is understanding the arbitration market and what the appropriate cases are, as well as the way the market continues to develop, particularly since it keeps being consolidated. We saw a huge growth in arbitration over the past few years, with new participants, lawyers and arbitrators. It is in that sense that we see another big challenge: the growth of this practice area must be in a high-quality, sustainable way, so it does not become a victim of its own success. Brazil has a great deal of cases and often these do not need to make use of arbitration, as they are not big or complex enough – in these cases, the judiciary is, or should be, more efficient. I believe that taking cases that are not adequate for arbitration may harm, rather than help. That is a concern and a challenge.
I am of the opinion that professionals must advise their clients on the decision of whether or not arbitration is the solution, in addition to educating themselves on the reasons for or against it. Most lawyers are instructed in arbitration, but education is not limited to that. One must think in a way that is different to litigation practice. Arbitration with a litigation mindset is possible, but it won’t bring the best result. A lawyer like me can do both things, but he or she must radically change their perspective in the conducting of cases. From my point of view, it has less to do with education and more to do with a firm belief of what is the right course of action.
You have provided testimony in arbitration proceedings across a range of sectors. How important is sector and industry-related specialisation on the part of the expert?
There’s a clear distinction between types of arbitration, because unlike commercial arbitration, investment arbitration does not exist in Brazil. There is a discussion on whether we will have it or not, but our country did not ratify the treaties and the bilateral investment agreements, which are the basis for the investment arbitrations. I work in many varying arbitration disputes. Even if they are relatively similar, construction and infrastructure disputes are not the same. Corporate disputes in arbitration, which are essentially between shareholders and partners, are disputes on agreements for mergers and acquisitions. We also have commercial and distribution disputes. Those are common in the arbitration practice.
Specialisation is important in this sector, because the arbitration lawyer needs to have a thorough knowledge of the subject or market. It is hard for a lawyer who has never worked with construction arbitration, for instance, to work on a case like that. The professional can have worked in 10 M&A arbitrations but that does not necessarily qualify him or her to work with construction arbitration if they do not know the contracts and the typical disputes, as well as the proceedings. Commercial disputes exist, but they are rare. The most recurrent disputes are those concerning construction, infrastructure, disputes between partners and shareholders, and M&As. Without knowing one or all of these subjects, working in arbitration is harder. Insurance is a field with many disputes too.
What do clients look for in an effective arbitrator?
In arbitration, there are many variables, and if the lawyer does not know where he or she is and what they can do, it can be hard. The clients look for a professional who is flexible enough to deal with the matter thoroughly, and who knows the contractual issues concerning the dispute and the merits of the dispute. Finally, the client does not always expect the features I have mentioned, but it is a pleasant surprise when you find a lawyer who pays attention to the details. That makes a difference for the client, because it is usual to start a dispute without understanding its complexity. In general, the disputes in arbitration tend to be more complex than they are initially thought to be, for many reasons. What the client seeks from a lawyer is that he or she does not complicate things, but instead can understand the complexities of the case and simplify them.
How does Lefosse Advogados distinguish itself from the competition?
We believe in the clients we represent and the cases we undertake. We do not let ourselves be defeated by cultural or regional aspects, and we do a thorough and consistent job. We are not too optimistic, which is a Brazilian trait that is even stronger in Brazilian lawyers. In other cases, we rest on evidence that we gather, and we work hard. Optimism without effort does not work.
What was the best piece of advice your ever received??
Arbitration may seem much more glamorous than it really is. There’s a saying that goes, good work is made up of 90% perspiration and 10% inspiration. In arbitration, it is 99.8% perspiration. It is part of the process of revising documents, building them, making copies, drafting questions, sending question lists to the parties involved and any other preparations. There’s a lot of sweat, a lot of preparation and a lot of organisation needed for the case to turn good. That is because all cases are very well assessed by the arbitrators and well prepared by the opposite side. People know each other, so it is your reputation and your work being assessed by competent and discerning people, 24 hours a day every day. The best advice that I received is the same I give to everyone: do not get discouraged.