Now Is the Time for Latin American Arbitration

Now Is the Time for Latin American Arbitration

Spring 2018, Commercial Dispute Resolution

Nicole Duclos and Miguel López Forastier are quoted in a Commercial Dispute Resolution article regarding international arbitration in Latin America. According to Duclos, three indicators reflect the way the discipline “has continued to grow in popularity and acceptance.” These include: the proactive modernisation of many countries’ arbitration laws during the 1990s, mostly in line with the
UNCITRAL model law; increased use of local arbitration centres for international cases; and that international institutions including the International Court of Arbitration (ICC) and International Centre for Disputes Resolution (ICDR) “are now actively engaged in promoting arbitration in the region."

Commenting on arbitration's popularity in the region, López Forastier identifies “the poor state of the judiciary,” “the conflicts and the disputes” created by the “many financial crises that the region has endured in the last 20 to 30 years,” and the use of arbitration for disputes with the state in countries such as Peru. As a result, the region “has developed a pool of talented lawyers who can act as arbitrators or counsel in those cases” that distinguishes it from Eastern Europe, Africa or Asia, he says.

Duclos adds that for “sophisticated transactions, Latin American parties continue to rely on New York as the seat of arbitration, or New York as applicable law” and there is no immediate prospect of that changing, though López Forastier believes it can in the near future if LatAm jurisdictions “can show that they have a reliable and independent judiciary with a reliable set of pro-arbitration precedents.”