INTERNATIONAL ARBITRATION 1/3LY
TECHNICAL 29
BR A Z I L
Arbitration in Latin America dates from the 1800s. Latin American countries’ first constitutions provided for arbitration. The Brazilian Constitution of 1824 provided for a party’s right to appoint arbitrators whose decisions on disputes would be binding and final. In 1878, Argentina, Bolivia, Chile, Costa Rica, Ecuador, Peru and Venezuela signed the Tratado para Estabelecer Reglas Uniformes emMateria de Derecho Internacional Privado setting the rules for the enforcement of international awards. Later, Argentina, Bolivia, Paraguay, Peru, Uruguay, Colombia, Brazil and Chile signed the Tratado de Montevideo in 1889 1 , under which the court judgements and arbitral awards issued by any signatory state would be recognised as a domestic judgment by the others. The Calvo doctrine (providing that jurisdiction in international investment disputes lies within the country where the investment is located) was later introduced hindering the development of international arbitration until the 1990s. Following the adoption of the free-market economy, Latin American countries set a favourable framework and environment for arbitration, by amending their national arbitration laws, which led to the creation of numerous arbitral institutions. A survey 2 carried out by the Institute for Transnational Arbitration (ITA) identified over 165 arbitral institutions in Latin America. ALL L AT IN AMERI C AN COUNTRIES ARE S IGNATORIES OF THE NEW YORK (1958) AND PANAMÁ (1975) CONVENT IONS .
Brazil has been in the spotlight amongst the countries that best developed and implemented policies favouring domestic and international arbitration in the region. From 2010 to 2015, Brazil’s main arbitral institutions received over 1,040 new cases. The number of annual cases filed increased from 128 to 222 new arbitrations a year. In Brazil, 80 per cent of the institutions were created during the period of 2000-2007. The Centro de Arbitragem e Mediação da Câmara de Comércio Brasil-Canadá (CAM-CCBC), founded in 1979, handles 45 per cent of the arbitrations in Brazil. CAM-CCBC received 472 new cases in the period 2010-2015. The lastest figures indicate that between 2012 and 2016, 16.5 per cent of the arbitrations have at least one foreign party; 6.1 per cent were conducted in a foreign language; and the parties have appointed at least one foreign arbitrator in 5.8 per cent of proceedings. The list of arbitrators comprises more than 100 names, 37 per cent of these are international arbitrators. CAM-CCBC was the first Brazilian arbitral institution to issue a resolution on Third-Party Funding recommending the funded-party disclose the use of funding at the first opportunity.
The Centro de Arbitragem e Mediação of São Paulo Industry Federation (CIESP-FIESP), established in 1995, handles approximately 20 per cent of the new cases in Brazil. CIESP-FIESP currently has 109 arbitrations, 17 being international cases, and 4 being conducted in English. The arbitrators’ roster contains 31 foreign names but in all of the ongoing cases the parties have only appointed Brazilian arbitrators. Founded in 1998, Câmara de Arbitragem Empresarial (CAMARB) at present manages 10 per cent of the total arbitrations in Brazil, with an average of 20 cases annually. Nearly half of its caseload relates to construction and energy disputes, with 5 per cent of the ongoing cases being international and 2 per cent being conducted in foreign language. The values under dispute in 2015 cases amount to BRL 1.8 billion (approximately GBP 430 million). CAMARB offers hearing facilities in Belo Horizonte, Rio de Janeiro and São Paulo. According to the 2015 International Arbitration Report published by the IBA, these are the most common seats for arbitration in the region. In 2015, the values of the disputes in Brazil amounted to BRL 10.7 billion.
1 Tratado de Direcho Procesal Internacional, 11/01/1889. Art. 5 “Las sentencias y fallos arbitrales dictados em asuntos civiles y comerciales em uno de los Estados signatarios, tendrás em los territorieos de los demás la misma fuerza que em el país em que se han pronunciado ...” 2 The Inaugural Survey of Latin American Arbitral Institutions (2011)
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