International Arbitration - Effective Options In Latin America & Beyond

Author:Mr Robert Armstrong, Gordon Bell, Mark Crane, Tom Price and France M. Tenaille
Profession:Gowling WLG
 
FREE EXCERPT

When doing business in Latin America, arbitration can be a viable alternative to litigation in resolving contract and relationship disputes between parties. Gowling WLG legal experts from Canada and the UK offer practical guidance on arbitration options and approaches.

CPD/CLE

This seminar contains one hour of substantive content toward the mandatory CPD requirements of the Law Society of Upper Canada and the Law Society of British Columbia. It will also count towards the mandatory continuing education requirement of the Barreau du Québec.

Transcript

France Tenaille: Good afternoon, my name is France Tenaille and as the leader of Latin American Practice of Gowling WLG I would like to welcome you all to our International Arbitration Webinar. We have a large group attending from various parts of the world and we want to thank you all for making the time today to attend this online event. Following the combination between Gowlings and Wragge Lawrence Graham & Co, a very large and experienced group of arbitration lawyers came together under one roof in offices around the world and with this experience in most corners of the globe, the group of experts that are going to speak to you today are going to not only update you on important traits in arbitration around the globe but most importantly they are going to give you practical advice that you can start using today to manage your business risk, your cost and your benefit. I am now going to turn the station over to Bob Armstrong who is the head of the Commercial Litigation Group in Canada. Bob?

Bob Armstrong: Thank you France. Please accept my welcome as well.

It goes without saying that Dispute Resolution is an increasingly important part of all contracts and corporate transactions so the audience we have today includes General Counsel, corporations then there is people outside Counsel and you all know from personal experience that that is true. You may or may not know that the trend in the world is to use arbitration as the preferred option for the contracting parties, especially when they are in foreign countries or dealing with foreign government to manage their dispute resolution. As some of the world has faced increasing challenges and we have seen that in this hemisphere and other hemispheres our clients and lawyers are looking for predictable and reliable mechanisms for dispute resolution and that is the context for this webinar. We believe that you and your clients at the end of this discussion will be more completely informed about what thinking you should have around arbitration and the thought is that you should have it at the beginning of a transaction rather than waiting until a dispute has arisen.

We are going to discuss today a few important aspects of arbitration and the trends. The first thing will be we will discuss with you the impact of investment treaties and how that impacts you and your clients, we are going to have a full discussion of a very important development in this field which is third party funding which creates significant opportunities for you and your clients to be creative and to manage your risk and your cause. And then we are going to talk a bit about the changing environment with respect to the enforcement of arbitral awards which is equally important in the event that you are trying to recover on a judgment that you may have obtained. Our goal really today is to continue a dialogue that we began with you a long time ago and develop a long lasting partnership between you and our firm. We only have an hour and we are going to keep to that because you have very busy schedules. So we are dividing the discussion into three parts with three speakers and I will have some comments at the end and answering some questions. I should tell you that if you have questions there is a question prompt on your screen and you can send them to us and we will either answer then at the end of this webinar or we will send you a written response at the end of the webinar. So there is the agenda, I am not going to take you through it right now because my colleagues are going to take you through these individual items but I wanted you to be able to see that and be aware that we have a comprehensive agenda for today. Let me just conclude my comments by introducing you to three of my partners and you will see their pictures are coming up, Gordon Bell and Tom Price are in England as we speak, Mark Crane and I and Florence are in Toronto. In essence Gordon Bell, Tom Price and Mark Crane and myself are four lawyers with very substantial experience in conducting international arbitrations around the world, I added it up if you add us all up and some of us including me are older than others, we have over 100 years of experience. Gordon, Tom and Mark are experts in particular, among other things, in construction, engineering, natural resources, infrastructure, my own expertise relates primarily to fraud, financial services, construction and government procurement. With these three speakers you have a depth of experience that represents the depth of experience in our firm and they are going to speak to you now about that experience and the impact of the trends in arbitration on you, your clients and your world. So I am going to ask that Gordon Bell in England start off the discussion about international arbitration and our experience. Gordon.

Gordon Bell: Thanks Bob.

As Bob said, we are going to talk a little bit about investment treaty arbitration as well as funding of arbitration, but where I would like to start is a slightly more general introduction to international arbitration itself and really in the context of international commercial arbitration where, as you will know, parties enter into a contract which tends to contain an arbitration agreement so we will start with international commercial arbitration first.

So, a short reminder or, for those who are not yet familiar with the topic of arbitration itself, a simple definition is "a private binding enforceable dispute resolution process which may be chosen by parties as an alternative to litigation before national courts". And you will see from the slide that I have highlighted four or five words in in that text and I will just explain a little bit about each of them to begin with.

So the first is private. Arbitration is private in two or three ways. It is private because it only involves those parties who have agreed to arbitrate – there cannot usually be third parties who take part in arbitration; it is private between two parties. It is also private in the sense that it is not something which is public; it is not like a court room where the public can come in and watch. There is an exception to that when we talk about investment treaties a little bit later but, in general, it is a forum where you do not have an audience other than the representative of the parties. And, in the third sense that it is private, it is confidential and I will talk about confidentiality in a moment.

It is binding. This is not a form of mediation, it is not a form of conciliation, it is a dispute resolution process that should bring to an end the dispute, and the resolution will be binding on the parties, subject to the possibility of challenge and appeal which, again, we will talk about a little bit later.

Thirdly it is enforceable and, in this sense, when an award is given by a tribunal it is immediately enforceable, potentially around the world through the New York convention. Again, we will pick up on the enforceability of an award later in the webinar.

It is chosen by the parties in the sense that nobody can compel somebody to arbitrate - you have to choose to arbitrate but, once you have chosen to arbitrate, courts will, if necessary, compel people to abide by that agreement. Now you choose to arbitrate not normally after the dispute has arisen but at the outset so that when you are entering into a substantive contract somewhere in that contract, usually towards the end, there will be an arbitration clause which will say all disputes will be referred to arbitration and that, in itself, is an agreement: that is the arbitration agreement. That agreement is separate, even though it is in part of the substantive contract, it is a separate agreement itself.

It is an alternative to the national court so, as again most of you will know, if you have a contract without an arbitration provision the default position is that you will have your dispute referred to the national court (depending on which court would apply), so arbitration takes you out of the jurisdiction of national courts.

The autonomy of the parties is crucial. It is for the parties to decide how to arbitrate and normally they do so by adopting some of the rules of arbitration that exist, sometimes institutional rules, sometimes not but, as Bob said, for some industries and for some companies, international arbitration has now become the chosen method of resolution of international disputes and is conducted all over the world against very different legal and very different cultural backgrounds. It is fair to say that no two arbitrations are the same: it is very different arbitrating a dispute in Paris to an arbitration in London or in Toronto, Miami or Caracas. The rules will be different, the culture and the expectations of the tribunal members will be different in each of those jurisdictions.

What disputes are arbitrated? Well again, in international commercial arbitrations, the type of disputes are commercial in nature and tend to be construction or infrastructure, energy, oil and gas, insurance, shipping, commodities and IP and I am sure those on the webinar will have other examples.  What is interesting from this list is that each of these areas provide their own specialism; it is not just knowing the international arbitration rules and international law that helps with an arbitration it is also understanding the industry and the focus of...

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