Introduction

The success of the first edition of Global Arbitration Review and Latin Lawyer’s The Guide to International Arbitration in Latin America was not surprising. The outstanding caliber of authors who contributed their knowledge, GAR’s privileged vantage point from which to spot trends and identify the needs of the arbitral community, Latin Lawyer’s in-depth knowledge about the bar and related developments in the region, and the continued growth of international arbitration in Latin America combined to make the tome one of GAR and Latin Lawyer’s most viewed works.

This second edition builds on that success, updates the content of the first edition and covers additional subjects.

As discussed in the first edition, historically, international arbitration was not used extensively in Latin America. However, international arbitration became the dispute resolution method of choice as international trade in the region grew, investment treaties and free trade agreements were put into place, and states modernised their arbitration laws.

Over time, lawyers within and without the region recognised the importance of having the knowledge and skills needed to compete effectively for such work. International arbitral institutions, such as the International Chamber of Commerce (ICC) and the International Centre for Dispute Resolution (ICDR), saw their Latin American caseloads grow significantly, and local arbitral institutions also recognised the potential and importance of non-domestic arbitrations.

Those factors, among others, have combined to make Latin America one of the most important regions in the world for international arbitration. As noted in the first chapter of this guide, the region has spawned some of the International Centre for Settlement of Investment Disputes (ICSID)’s most notable cases. At the time of writing, ICSID has registered 45 cases in 2023. Of those, almost half (21) were from Latin America.^[2] Latin American parties from Brazil, Mexico and elsewhere in the region are among the most frequent users at leading institutions, such as the ICC. Lawyers and arbitrators from the region are serving in some of the world’s largest arbitration disputes, and have led important arbitration organisations, such as the International Bar Association Arbitration Committee, spearheading important initiatives.

Against that backdrop, this second edition brings you thoughtful analysis on key current issues and jurisdictions in the region.

We begin with an update by one of the world’s thought leaders in arbitration, Gary Born, and his colleague, Claudio Salas, to the insightful analysis of ICSID arbitration in Latin America they delivered in the first edition. They analyse the origins, evolution and state of ICSID arbitration in Latin America. As they note, in the first decade of this millennium, ICSID cases from the region, originating primarily from Argentina and Venezuela, grew exponentially. Those great waves of claims resulted from sweeping policy changes implemented broadly by the respondent states. As multiple investors in somewhat similarly situated positions brought claims seeking redress for those wholesale changes, multiple arbitral tribunals were called on to address the common issues. Some of the awards rendered were inconsistent with one another, leading to criticisms and dissatisfaction with ICSID as a means of resolving such disputes.

Gary and Claudio note, though, that the story does not end there. Since 2015, the cases brought before ICSID have for the most part been grounded on specific government measures, not sweeping policy changes, thus reducing at least the risk of direct inconsistency. States such as Mexico have acceded to the ICSID Convention, and Ecuador has rejoined. As they note, ‘ICSID’s fortunes have improved in Latin America.’

But the story does not end there either. As Gary and Claudio point out, the political landscape in Latin America can shift quickly, and there are signs that political changes in the region might bring new sweeping policy changes, creating the prospect of a new boom of ICSID cases, and with it, the potential for stresses on the system.

Following Gary and Claudio’s review of ICSID arbitration, a team from Uría Menéndez in Spain comprising Álvaro López de Argumedo Piñeiro, Jana Lamas De Mesa, Ana Amorín Fernández and Alberto de Unzurrunzaga Rubio update their chapter on the application of the New York Convention in the region, including with recent jurisprudence. The team focuses on Article V’s grounds to refuse recognition and enforcement of foreign arbitral awards. Extensive jurisprudence on the interpretation of each section of Article V does not yet exist, but, as they explain, some local arbitration laws contain similar grounds for opposing the enforcement of awards. Thus, local courts’ interpretations of those domestic provisions can inform efforts to divine how the same courts might apply the corresponding sections of Article V.

With a focus on amparo actions in Argentina, the mandados de segurança under Brazilian law, tutelas under Colombian law and amparos in Mexico, Luis Dates, Joaquim Tavares de Paiva Muniz, Claudia Benavides Galvis and Francisco Franco of Baker McKenzie tackle the complicated subject of constitutional writs against arbitral proceedings. Their chapter reveals that the writs are not treated uniformly in the region, there being substantial differences from jurisdiction to jurisdiction. They posit that while the risk to arbitration from such writs is diminished in some jurisdictions, it is still present in others.

In recent years, the globally important issue of arbitrating disputes over transactions allegedly tainted with corruption has arisen in Latin America. In their contribution, Ari MacKinnon, Katie Gonzalez, Elisa Zavala and Roberta Mayerle of Cleary Gottlieb examine the impact of corruption in two phases of arbitration: first, when the issue arises during the course of the arbitral proceeding, and second, when it arises in the context of annulment, recognition and enforcement of the award. As they explain:

while there have been important recent developments in how tribunals and courts alike confront issues of corruption in arbitration, the law is far from settled. There exist important, and sometimes dispositive, differences – not only across different jurisdictions where legal traditions may vary, but from tribunal to tribunal, court to court, and case to case.

One especially interesting aspect they examine is the varying degrees of deference that tribunals have accorded to parallel proceedings involving the same allegations of corruption. Their report identifies issues about which we can expect to hear more on the road ahead.

The growth of international arbitration in the region has brought increased conflicts in laws and practices that affect parties’ rights in important ways, for example, with respect to the governance of ethical conduct. María Inés Corrá, Santiago Peña and María Lourdes Garay of Bomchil point out that ‘[n]ot all the participants in international arbitration proceedings are subject to the same ethical rules, and it is not always clear which rules shall apply to each of them.’ In such a vacuum, in which the laws applicable are not clear, customs and practice fill some of the void, but as they note ‘what is considered “acceptable” or “expected” conduct may vary significantly among practitioners from different countries and legal traditions.’ In their chapter, they report on, among other things, the status of ethical rules in international arbitration in Latin America, with special reference to regulations of Argentina, Brazil, Mexico and Peru. This is an area that will continue to have important ramifications in cases.

Harry Burnett and Craig Miles of King and Spalding address arbitration in the mining industry, which, of course, is a major component of Latin America’s GDP and a major source of its exports. Their update reports on the most recent developments in the sector, including on recent awards as well as new measures in Mexico, Brazil and Colombia, implemented by the current administrations in power. The changes potentially could trigger a new wave of investment arbitrations and other disputes. Harry and Craig also report that states are increasingly raising human rights and environmental protection claims and defences against investors. In addition to analysing trends and reviewing recent commercial disputes in the mining sector, they explore the effect that community consultation (or a lack thereof ) and ‘social licence’ can have on the legal rights of investors in extractive industries. Their review of recent investor-state and other arbitration cases dealing with these doctrines provides useful guidance for those facing similar issues.

Cecilia Azar and Tomás Geuna of Galicia Abogados assumed the task of assessing the reasons why arbitration of disputes in Latin America is a viable and sound option today. As noted, in the early days of Latin American arbitration, traditional venues, such as New York and Paris, were virtually the default arbitral seats for international disputes originating in the region. As Latin America developed its arbitral infrastructure, however, including by modernising its laws, executing arbitration-related treaties and conventions, and sensitising the judiciary to the value of arbitration, and as the number of experienced and knowledgeable local arbitration lawyers grew, new seats emerged.

Cecilia and Tomás cite multiple reasons why arbitration is currently the optimal choice for the resolution of business disputes in Latin America. They note, for example, that in addition to international arbitration institutions such as the ICC, the region now offers local arbitral institutions that are solidly positioned to administer arbitrations. In their update, the authors inform on new developments including recently proposed laws that are likely to propel arbitration further. In their new report, the authors reconfirm their view, expressed in their first edition, that international arbitration has ‘a bright future . . . in the region’.

My colleagues Arturo Muñoz Holguin and Daniel Ávila of Reed Smith LLP provide an overview of regional centres, and, in particular, of the different ways in which those centres address common issues, such as the selection and appointment of arbitrators, emergency measures, consolidation of proceedings and information exchange. In their update, they report on the results of the Institute for Transnational Arbitration’s 2023 survey of Latin American Institutions, led by Daniel Ávila, which revealed the continued growth of Latin American arbitral institutions and other trends.

As they point out, the arbitration boom in Latin America brought a corresponding, marked increase in new arbitral institutions. The authors raise the provocative question of whether consolidation among the centres will occur as the industry matures. With a nod to physicist Niels Bohr, who is said to have said that ‘prediction is very difficult, especially about the future,’ the authors venture that the most innovative and responsive centres should emerge as major players, building scale and protecting their advantage with proprietary technologies and differentiated procedures that are attractive to arbitration users, but they acknowledge that only time will tell the accuracy of their prediction.

A running theme so far has been the evolution and maturation of the international arbitration ‘market’ in Latin America, including by virtue of the sophisticated nature of investor-state cases originating in the region, increasingly generalised adherence to the New York Convention, the growth of arbitration centres and multiple other factors that make arbitration in Latin America a sound choice. Alexander Yanos of Alston & Bird and Claudia Linares of Parabellum Capital examine the state of dispute funding in international arbitration in Latin America. In addition to providing a cogent explanation of the funding process, the authors report on the latest efforts by states to address the use of dispute funding, including for example, provisions in the bilateral investment agreement between the United Arab Emirates and Argentina that expressly exclude the possibility of claims funded by third parties, and the provisions of the Colombia and Spain treaty that impose on a party the costs and fees of the arbitration irrespective of the outcome of the arbitration if the party does not timely disclose the existence and the identity of a third-party funder.

Finally, at the end of the day, save in exceptional circumstances, the arbitration of Latin American disputes will involve local law in either one or both of two ways: for arbitrations seated in the region, local law will bear on the arbitration proceedings and annulment of awards; and, for arbitrations seated outside the jurisdiction, local law will bear on efforts to enforce awards. In either instance, local law will be at the front and centre of the key issues. With that in mind, we have assembled a compendium of chapters on local arbitration law and practice in key jurisdictions in the region, written by leading firms:

• Argentina, by Ricardo A Ostrower, Martín Vainstein and Victoria Rodríguez Goyena of Marval O’Farrell Mairal;
• Brazil, by Lucas Mejias, Fernando Eduardo Serec, Antonio Marzagão Barbuto Neto and Maria Isabel de Sá Dias Machado of TozziniFreire;
• Chile, by Felipe Ossa, Felipe de Marinis and Martín Álvarez of Claro & Cia;
• Colombia, by Daniel Posse Velásquez, Carolina Posada Isaacs and Laura Vengoechea Ballesteros of Posse Herrera Ruiz;
• The Dominican Republic, by Andrés E Bobadilla and Gabriella M Muñiz Bobadilla of Bobadilla Abogados;
• Mexico, by Francisco Rivero and Eduardo J De la Peña Bernal of Reed Smith LLP; and
• Peru, by Edwin Pezo, Claudia Quispe and Raul F Zuñiga of Estudio Muñiz

While the foregoing collection does not exhaust the arbitral jurisdictions in Latin America, it covers key jurisdictions, including those having the highest volumes of cases.

We hope you will enjoy this work. With sincere thanks to the authors for their excellent and thoughtful contributions, Global Arbitration Review, Latin Lawyer and I look forward to bringing you expanded coverage in future editions.

Footnotes