Special report: Arbitration
particularly when doing business
in another country.”
Clients typically have two
primary concerns when it comes
to the issue of arbitration, says
Davidson. “Firstly, they want to
know if their case has merit, and
secondly, how much it will cost
to arbitrate,” he explains. “The
biggest challenge for us is to
ensure that our clients always get
the very best service and always
feel part of the decision-making
process.” Davidson adds that
arbitration continues to be more
widely accepted internationally.
“Statistics indicate that the
number of cases in international
arbitration institutions continues
to grow, and my feeling is that,
at the same time, the number of
international cases at a local level
is also increasing,” he says.
Stress and distractions
The costs, duration and risks
associated with arbitration are
among clients’ biggest concerns,
according to José Astigarraga,
partner at Reed Smith in Miami.
He adds that, with regard to
arbitration in Latin America,
clients’ often have worries
about the trustworthiness and
predictability of the judicial
body involved in the case. “For
example, it is important that
the judicial body respect the
arbitration clauses, because if
one party is able to escape its
obligation to resolve controversies
through arbitration, or to delay
José Astigarraga, Reed Smith
as arbitrators in the Santiago
chamber of commerce’s arbitration
and mediation centre, according to
Guerrero.
Katherine Gonzalez Arrocha, ICCS
the process and force the litigant
to resort to the courts, this will
have a high cost for the company,
not only in economic terms, but
also at the cost of stress and
distraction as it is forced to defend
the case in court,” Astigarraga
explains. Lawyers stress that
arbitration must be trustworthy
and efficient, and point out that its
benefit is lost if the award is not
enforced.
In Guatemala, significant
cases of ‘investor-versus-state’
arbitration are emerging,
according to Ignacio Andrade
Aycinena, Guatemala managing
partner at law firm Sfera, who
says that this is generating
opportunities for law firms.
Meanwhile, commercial
arbitration is also growing in
Chile, in the view of Roberto
Guerrero, partner at Guerrero
Olivos in Santiago. “Our
country is a good jurisdiction
for arbitration, as it has a long-
held custom of resolving legal
disputes through arbitration as
it has prestigious institutions,”
Guerrero says. “We also have
laws regarding international
commercial arbitration and our
tribunals are familiar with the
theme, making the execution
of sentences easier, including
those dictated by both Chilean
and foreign courts.” As a result,
Guerrero Olivos has strengthened
its arbitration team in recent
years and a number of the
firm´s lawyers have been named
24 • THE LATIN AMERICAN LAWYER • December 2018
Worry for clients
Guerrero adds that the increase
in arbitration cases in Chile is
most evident in the construction,
energy and mining sectors. He
says the cases often relate to
company acquisitions, where
litigation is used in relation
to price adjustments, and
for compensation related to
declarations and guarantees. “One
of the advantages of arbitration
in Chile is the specialisation of
arbitration lawyers, which allows
for conflicts to be resolved in an
expert manner, and in a much
shorter period of time than in a
normal tribunal,” Guerrero says.
“This means that practically all
commercial contracts of a certain
size contain a clause for conflict
resolution via arbitration, so there
are prospects for this kind of
practice to grow considerably.”
Among clients’ main
preoccupations is selecting an
arbitration lawyer, according to
Guerrero, who adds that getting
this decision right is critical
for the resolution of the case.
Lawyers also say that clients are
also concerned about whether
their team of lawyers will have
a full understanding of the case,
while another worry for clients is
the cost of arbitration “especially
as arbitration is paid by both
parties in the case and the most
prestigious arbitration lawyers
tend to be expensive”, says one
partner. Institutional arbitrators
have pre-specified prices, and
these are usually respected, he
adds.
Brazil: Leader in arbitration
As all arbitration cases are
different, each case brings a new
challenge for lawyers, according
to De los Santos. He adds that,
as a consequence, law firms need
strong arbitration teams with
global experience. Meanwhile,
www.thelatinamericanlawyer.com