INTERNATIONAL ARBITRATION 1/3LY
IN CONVERSATION WITH JOÃO BOSCO LEE 17
IN CONVERSATION WITH JOÃO BOSCO LEE INDEPENDENT ARBITRATOR AND MEMBER OF THE ICC INTERNATIONAL COURT OF ARBITRATION Peter Hirst, Partner at Clyde & Co, in conversation with Professor João Bosco Lee, Independent Arbitrator and member of the ICC International Court of Arbitration
BRAZIL: AN APPROPRIATE VENUE FOR ARBITRATION?
in Brazil, whereby arbitration specialists have become more available, Brazilian companies have become much more comfortable with arbitration both at home and abroad. With our national clients becoming involved in ever increasing volumes of international trade, it is inevitable that arbitration will continue to prosper. PETER What are the common seats and rules selected by Brazilian parties in international arbitration? For example, ICC statistics show that Brazilian parties are the fourth largest user, by nationality, of ICC arbitration. BOSCO That ICC statistic reflects my experience which is that currently there is a discernable preference among Brazilian parties towards ICC Arbitration Rules. There is also no doubt that Brazilian Parties have a preference for Brazil as a seat of arbitration, especially São Paulo and Rio de Janeiro. For those contracts where a Brazilian seat is not an option, the preferred choices are London and Paris in Europe; and New York and Miami in the United States. PETER Based on your experience as an arbitrator, do Brazilians parties fully understand (and comply with) principles developed by the wider international arbitration community? BOSCO The practice of international arbitration in Brazil has adopted several rules from the wider international arbitration practice such as, witness statements, cross examination and use of the Redfern schedule. Despite this, there is still some resistance to the application of some internationally recognised practices, such as discovery.
PETER Brazil – the B in BRIC, and the world’s seventh largest economy – did not, until recently, have a very good reputation as a venue for arbitration. Was that deserved? BOSCO For a country to become recognised as a reliable venue for international arbitration it is necessary to have in place modern arbitration legislation, favorable case law and to be a signatory of the 1958 New York Convention. Brazil adopted the requisite legislation in 1996 but it was challenged on grounds of constitutionality before the Supreme Court which didn’t deliver its final decision on the constitutionality of the Brazilian Arbitration Law until 2001. Since this decision, arbitration has steadily become more established through milestones including Brazil’s accession to the New York Convention in 2002 and, more recently, the consolidation of case law supporting arbitration by the national courts. I would say Brazil is now definitely an important place to consider as a venue for international arbitration. PETER The number of international arbitrations involving Brazilian parties has increased over the past years and indeed Clyde & Co has seen a very considerable increase in work from Brazil. We have a team of eight Brazilian qualified attorneys in London engaged in arbitrations with seats in London, New York, Paris and Geneva. It seems obvious that arbitration has become more popular with Brazilian clients. Do you agree? BOSCO As discussed, Brazil has the necessary legal framework for the development of arbitration. Together with the economic growth and the consolidation of legal practices
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