Litigation finance continues expand rapidly on a global basis, including in Latin America. The region’s code-based civil systems generally permit litigation funding and the continued growth in arbitration make it an attractive market for funding. Brazil, as the region’s largest economy, and with a well-developed and sophisticated legal system, is leading the way. Moreover, local practitioners…
One of the most critical moments in any international arbitration is the appointment of arbitrators. As Rusty Park has explained, “just as ‘location, location, location’ comprise the three key elements in sustainable real estate value, so it has been observed that ‘arbitrator, arbitrator, arbitrator’ endure as the most critical factor in the integrity of any…
Brazil has recently executed two new Cooperation and Facilitation Investment Agreements (“CFIAs”) with the Federal Democratic Republic of Ethiopia on April 11, 2018; and with the Republic of Suriname on May 2, 2018. These are, respectively, the 7th and the 8th CFIAs that Brazil has executed since 2015 (the former ones were executed with Chile,…
On 4 July 2018, the Argentine National Congress passed a new arbitration act modernizing the framework for the conduct of international commercial arbitrations in Argentina (the Arbitration Act or the Act), based on the UNCITRAL Model Law and its 2006 amendments (the Model Law). The development comes in response to calls from the arbitral community…
For the past few years, Brazil has gained recognition as an “arbitration-friendly” seat when it comes to the enforcement of foreign arbitral awards. However, last year, in a groundbreaking decision, the Brazilian Superior Court of Justice (in Portuguese, “Superior Tribunal de Justiça” or “STJ”) denied recognition of two US arbitral awards. Abengoa has appealed from…
Cruising around investment cases against the Caribbean islands is not only a recreational journey. It is also an informative one. This article aims at presenting key observations made during this journey. As mentioned in a previous publication, since 1973, the sovereign islands of the Caribbean Sea, have concluded over 140 international investment agreements. The ICSID…
This post gives a bird’s eye view of an imminent investment arbitration and forecasts procedural and/or jurisdictional hurdles to the case, by analyzing the dispute resolution provision and relevant precedents, with the intention of highlighting recurring inconsistencies on a key procedural issue and urging for more predictable outcomes for the benefits of the stakeholders in…
At a time when Argentina is looking to modernize its arbitration culture and attract foreign investment, the IBA Arbitration Day held in Buenos Aires could not have been more opportune. Gathering more than 400 arbitration experts from more than 45 countries, the venue and the event proved to be up to the challenge. While arbitration…
This post covers the main topics broached in my lecture given in Oxford, in the Conference “II Oxford Symposium on Comparative International Commercial Arbitration”, which took place on November 20, 2017. The question is: are arbitrators bound by precedents or by a clear line of case law, when parties have decided, in the arbitration agreement, that…
The need to attract foreign oil & gas investment due to the current low price in Latin American countries is creating an environment were once non-friendly arbitration jurisdictions are increasingly accepting international arbitration clauses for complex landmark deals. This trend is being used within Stock Purchase Agreements of Mixed Oil Companies, Prepaid Oil Agreements when…
The latest decision in Bear Creek Mining Corp v Republic of Peru (ICSID Case No. ARB/14/21) presents some interesting takeaways for international investment arbitration case law. This note briefly introduces the case’s relevant facts before addressing the reasoning of the Tribunal in relation to (i) illegality as a bar to investment protection, (ii) indirect expropriation,…
This post is the conclusion of a two-part publication regarding the situation of investors in Ecuador vis-á-vis the country’s efforts to elude the substantive and procedural protections afforded by investor-state dispute settlement (ISDS). The first part consisted of a review of the law applicable to entering and withdrawing from the International Centre for Settlement of…
As a result of a reform of Mexico’s Constitution, on 25 February 2017 a Presidential Decree was enacted, whereby the Congress received the mandate to pass a new law on Alternative Dispute Resolution mechanisms (“ADR Law”) in August 2017.[1] For the first time, the right to “access to ADR mechanisms” was recognised at constitutional level,…
It has been ten years since Bolivia denounced the International Centre for Settlement of Investment Disputes Convention (“ICSID Convention”), becoming the first country to withdraw from the ICSID Convention in history. True, several countries have never even signed the ICSID Convention in the first place (including large economies such as Brazil and India), but until…
As reported in the excellent piece by Alejandro López Ortiz and Gustavo Fernandes in “A Year of Legal Developments for International Arbitration in Latin America”, Bolivia may have taken a step back in State arbitration with the passing of its new act on arbitration in 2015. The article remarks the limitations to arbitrability introduced by…
Article 19 of the Incentives for Public-Private Partnerships and Foreign Investment Act (“PPP Act”) recognizes local and international arbitration as one of the dispute resolution methods that has arisen in Public-Private Partnership agreements (“PPP agreements”). Article 20 of this Act and articles 19, 20, 21, and 22 of its Regulations set forth certain rules for…
In Scherk v. Alberto-Culver Co, the US Supreme Court stated that “[a] contractual provision specifying in advance the forum in which disputes shall be litigated and the law to be applied is an almost indispensable precondition to achievement of the orderliness and predictability essential to any international business transaction.” While this statement holds almost invariably…
The Second Circuit’s decision on Chevron Corporation v. Steven Donziger et. al., one more chapter of the “Chevron Saga” (discussed by the author here), arose out of a federal action commenced by Chevron Corporation in 2011 against American lawyer Steven Donziger, his law firm and the plaintiffs in the Lago Agrio claim initiated against Chevron…
In May 2016, DRBF gathered in Santiago, Chile, for its annual international conference. The location is testimony to the rising demand and dispute boards practice in the region. Having served for some years in the management of our organization, it is observable that the purpose of the concept proves to be successfully established. Indeed, the…
“And the winner is Buenos Aires” said Alice Fremuth-Wolf, deputy Secretary General of the Vienna International Arbitral Centre and presiding arbitrator of the final round, in the afternoon of 24 March 2016. This was the moment that a group of coaches, students and former students of the University of Buenos Aires (“UBA”) had long worked–and…
Latin America is the region that has faced the largest number of investment treaty arbitration cases in the world, holding 30% of the total ICSID caseload (549 cases as of December 31, 2015). South America alone, comprised by twelve UNASUR members, has faced 131 ICSID cases with a number of adverse outcomes for the host…
2015 has witnessed numerous interesting legal developments in the field of international arbitration in Latin America, although these have been wide-ranging in nature and have not always followed the same path. While some jurisdictions have taken legislative steps to introduce or consolidate pro-arbitration legislation in accordance with internationally accepted standards, others, perhaps influenced by negative…
by Daniela Páez-Salgado, Herbert Smith Freehills (Assistant Editor for South America) On November 2, 2015, an ICSID-appointed Committee issued its Decision on Annulment in Occidental v Ecuador (Occidental Petroleum Corporation and Occidental Exploration and Production Company v. Republic of Ecuador, ICSID Case No. ARB/06/11). The Committee rejected twelve of the thirteen grounds for annulment raised…
The views expressed in this article are those of the author alone and should not be regarded as representative of, or binding upon ArbitralWomen and/or the author’s chambers. The legal landscape in Latin America is rapidly changing. Not only has Latin America more bilateral Trade Agreements than any other region in the world, but it…
