Focus: Arbitration in Latin America - White & Case

Summer 2009 

International Disputes Quarterly 

Focus: Arbitration in Latin America 

In This Issue... 

Focus: Arbitration in Latin America 

Foreword, The Compendium of Latin American Arbitration Law, 

Survey of Trends in Latin American Arbitration ..................................................1 

Mexican Dispute Resolution: Changes to the Arbitral Framework in Mexico, 

the Convention on Choice of Court Agreements .................................................6 

Developments in Latin American Arbitration: Legal Stability Agreements in Peru, 

the US-Peru Trade Promotion Agreement, UNASUR and New Domestic Arbitration 

Statutes in the Dominican Republic and Peru ..................................................10 

Client Alerts 

German Arbitration Institution (DIS) Launches Project IberoAmericana ..........................15 

European Court of Justice Finds Anti-Suit Injunctions Unavailable 

in Support of Arbitration Proceedings in Europe ................................................16 

Hong Kong International Arbitration Center Launches New Administered Arbitration Rules .......18 

New Arbitration Bill Introduced at the Current Legislative Session in Hong Kong .................19 

Practice Tips 

Tips from the Chartered Institute’s New Protocol for E-Disclosure in Arbitration .................20 

Practitioner Recognition and Practitioner Appointments ................................22 

Foreword 

Jonathan C. Hamilton 

The Latin American arbitration wave continues, 

and this issue of International Disputes 

Quarterly focuses on recent developments in 

commercial and investment arbitration related 

to Latin America. 

We feature a survey of growth trends in 

Latin American arbitration, and the 2009 

Edition of the “Compendium of Latin 

American Arbitration Law.” The issue further 

focuses on Mexico, including new regulations 

pertaining to Mexico’s state-owned petroleum 

company and the effect of signatures of the 

United States and the European Community 

on the Hague Convention on Choice of 

Court Agreements. 

In addition, we feature articles on Peru’s 

legal stability regime, the denunciation of 

bilateral investment treaties (“BITs”) by 

Ecuador, the recent entry into force of a Trade 

Promotion Agreement (“TPA”) between the 

United States and Peru, the status of the 

emerging Union of South American Nations 

(“UNASUR”), and new domestic arbitration 

laws for the Dominican Republic and Peru. 

Contributing Authors: 


Patricia Nacimiento 

Michael Roche 

Lilia Alonzo 

Erika M. Serran 

Michelle Holmes Johnson 

Sabina Sacco 

Francisco X. Jijon 

Javier Ferrero 

Guido Clichevsky 

Mairée Uran-Bidegain 

Assimakis Komninos 

Marco Lam 

Alex Charter 

Rachel Compton 

Claire Inder 

Matthew Secomb 

Editors: 

Kirsten Odynski 

Michael Ottolenghi 

”The team's Latin American 

presence is formidable….” 

White & Case LLP 

1155 Avenue of the Americas 

New York, NY 10036 

+ 1 212 819 8200 

www.whitecase.com 

www.whitecase.com 

—Legal 500 US 2009

A Multilingual Team 

With Experience in 

Civil and Common 

Law Jurisdictions 

Our Latin American 

arbitration experience 

spans multiple offices, 

with practitioners in 

Washington, New York, 

Miami, Mexico City 

and São Paulo, as well 

as London, Paris 

and others. 

”[L]awyers—many 

of whom are fluent 

in Spanish or 

Portuguese—handling 

disputes concerning a 

variety of jurisdictions….” 

—US Legal 500 2009 

International Disputes Quarterly—Focus: Arbitration in Latin America 

The Compendium of Latin American 

Arbitration Law – 2009 

Jonathan C. Hamilton, editor 

The “Compendium of Latin American Arbitration Law” 

has been developed and updated by partner Jonathan 

C. Hamilton and members of the Firm’s International 

Arbitration Group over the course of almost a decade. 

With respect to commercial arbitration, the Compendium 

tracks the enactment of the 1958 United Nations 

Convention on the Recognition and Enforcement of 

Foreign Arbitral Awards (the “New York Convention”) 

and the 1975 Inter-American Convention on International 

Commercial Arbitration (the “Panama Convention”) 

throughout Latin America. The Compendium also notes 

the year in which each State adopted and/or amended its 

The Compendium of Latin American Arbitration Law – 2009 

New York 

Convention 

Entry into force 

Commercial Arbitration 

Panama 

Convention 


domestic arbitration law, as discussed in the cases of the 

Dominican Republic and Peru in this issue. With respect 

to investment arbitration, the Compendium tracks the 

enactment of the 1965 Convention on the Settlement of 

Investment Disputes Between States and Nationals of 

Other States (the “ICSID Convention”). The Compendium 

also notes the number of bilateral investment treaties 

(“BITs”) and free trade agreements (“FTAs”) currently in 

force in each jurisdiction. Most recently, the Compendium 

also reflects the decision by some States in the region to 

withdraw from ICSID or denounce previously negotiated 

BITs, as discussed in the case of Ecuador in this issue. 

Arbitration Laws/ 

Amendments 

Year adopted 

ICSID 

Convention 


Investment Arbitration 

Bilateral 

Invest. Treaties 

In force 

Argentina 1989 1995 1967/81 1994 55 0 

Bolivia 1995 1999 1997 1995 – 2007** 20 1 

Brazil 2002 1995 1996 No 0 0 

Chile 1975 1976 2004 1991 39 11 

Colombia 1979 1987 1989/91/96/98 1997 2 1 

Costa Rica 1988 1978 1997 1993 14 5 

Dominican Republic 2002 No 2008 No 9 3 

Ecuador 1962 1991 1997/2005/06 1986 25/17* 0 

El Salvador 1998 1980 2002 1984 20 6 

Guatemala 1984 1986 1995 2003 13 4 

Honduras 2001 1979 2000 1989 9 5 

Mexico 1971 1978 1993 No 24 12 

Nicaragua 2003 No 2005 1995 16 4 

Panama 1985 1976 1999/2006 1996 17 4 

Paraguay 1998 1977 2002 1983 27 0 

Peru 1988 1989 2008 1993 30 2 

Uruguay 1983 1977 1988 2000 26 1 

Venezuela 1995 1985 1998 1995 23 0 

Free Trade 

Agreements 

In force 

*Ecuador’s Official Register No. 452 of October 23, 2008 published Ecuador’s denunciation letters of 8 BITs. 

**In accordance with Article 71 of the ICSID Convention the denunciation became effective six months after the receipt of Bolivia’s notice, i.e., on November 3, 2007 

UPDATED AS OF March 1, 2009. © 2000 - 2009, JONATHAN C. HAMILTON/WHITE & CASE LLP. THIS DOCUMENT IS BASED ON AN ANALYSIS OF 

PRIMARY AND SECONDARY SOURCES AND MAY ONLY BE REPRODUCED OR TRANSLATED WITH CREDIT. 

2 SUMMER 2009

Survey of Trends in Latin American Arbitration 

Contributing Authors: Jonathan C. Hamilton and Michael Roche 

Latin America continues to experience rapid 

growth in the area of international arbitration. The 

“Compendium of Latin American Arbitration Law” 

reproduced in this issue provides a quick reference 

to the adoption of international treaties and domestic 

arbitration laws throughout the region. 

As evidenced by the Compendium, at present, 

the ICSID Convention is in force in fourteen Latin 

American States. Additionally, sixteen Latin American 

States (as well as the United States) have ratified the 

Panama Convention, while the New York Convention 

has been ratified by nineteen Latin American States, 

including all states listed in the Compendium plus 

Cuba. Finally, as further demonstrated by the 

Compendium and discussed in this issue, Latin 

American States continue to overhaul their domestic 

arbitration laws, sometimes repeatedly. 

Investment Arbitration 

In the context of investment arbitration, the number 

of arbitrations filed against Latin American States 

before the International Centre for Settlement of 

Investment Disputes (“ICSID”) has grown since 

the filing of the first such case in 1996. 1 Today, a 

full 55.2 percent of ICSID’s pending case docket 

(69 out of 125 cases) constitutes cases filed against a 

Latin American State. By contrast, only 29.1 percent 

Percentage of ICSID Cases Against 

Latin American States 

Pending 

Concluded 

55.2% 

29.1% 

Latin American 

Non-Latin American 

Source: ICSID Through May 2009 

1 See Santa Elena v. Republic of Costa Rica (ICSID Case No. ARB/96/1). 

of concluded ICSID arbitrations (46 out of 158 cases) 

were brought against a Latin American State, thus 

demonstrating the increased role of the region in 

international investment cases in recent years. 

Among Latin American States, one country alone— 

Argentina—accounts for just over a quarter of 

all pending ICSID cases (34 out of 125 cases). 

Argentina further represents half of pending ICSID 

cases involving a Latin American State (34 out 

of 69 cases). When analyzed in the context of all 

registered ICSID arbitrations—both pending and 

concluded—Argentina has been named in over 

three times as many ICSID cases as any other Latin 

American State (a total of 49 cases, as opposed to 

13 for Mexico which, although not a party to the 

ICSID Convention, participates in ICSID proceedings 

as a member of the North American Free Trade 

Agreement (“NAFTA”)). 

The settlement rate of Latin American ICSID 

cases is comparable to that of ICSID arbitrations 

generally. For instance, according to figures 

available from ICSID, roughly 38 percent of all 

concluded ICSID arbitrations settled at some phase 

(60 out of 158 concluded arbitrations). Among Latin 

American ICSID cases, roughly 32.6 percent of 

cases settled (15 out of 46 concluded cases). 

These percentages do not include cases that were 

discontinued for other reasons. 

Total ICSID/ICSID Additional Facility Cases Registered 

Against Selected Latin American States 

Argentina 

Mexico 

Ecuador 

Venezuela 

Peru 

0 20 40 60 

Source: ICSID Through May 2009 

Complete Victory for the 

Republic of Peru 

An arbitral tribunal 

ruled unanimously in 

favor of White & Case’s 

client the Republic 

of Peru in a US$150 

million energy dispute 

before the International 

Centre for Settlement 

of Investment Disputes 

(“ICSID”). The award 

is a complete victory 

for Peru and makes an 

important contribution 

to the understanding of 

stability agreements as 

a tool for the promotion 

and protection of 

foreign investment. 

White & Case 3 

5 

13 

12 

12 

49

White & Case: 

Preeminent in 

International 

Arbitration 

■ ■ 

■■ 

■■ 

Chambers USA 2009: 

Tier One every year 

since the inception of 

the rankings 

US Legal 500 2009: 

Tier one 

International Who's 

Who of Commercial 

Arbitration–2009: 

No firm has more 

lawyers recognized 

worldwide 


Latin America’s familiarity with investment arbitration 

extends beyond the party level, as the region is also 

home to many experienced arbitrators. In original 

ICSID proceedings involving a Latin American State, 

nearly a third of all arbitrators have themselves 

been Latin American (90 out of 292 arbitrators). 

In these same cases, however, nearly three quarters 

of Tribunal Presidents have been from outside Latin 

America (72 out of 98 Tribunal Presidents). 

Commercial Arbitration 

Private parties in Latin America have 

also embraced international commercial 

arbitration over the past 15 years. This trend 

is illustrated by statistics published annually 

by the International Chamber of Commerce 

(”ICC”)—a leading institution for international 

commercial arbitration. 

Since 1996, 7.7 percent of parties to ICC arbitrations 

have been Latin American (1,335 out of 17,364 

parties). Additionally, the percentage of Latin 

American parties involved in ICC arbitrations has 

grown by roughly a quarter between 1995 – 2001 

(6.8 percent of all ICC parties) and 2002 – 2007 

(8.4 percent of all ICC parties, with 2007 being the 

last year for which figures are available). 

250 

200 

150 

100 

50 

Strong growth can also be observed in individual 

Latin American countries. For this exercise, one 

need only examine the six countries which, since 

1996, have accounted for over 80 percent of Latin 

American parties to ICC arbitrations—i.e., Argentina, 

Brazil, Chile, Mexico, Panama and Venezuela. 

Out of these six countries, all but two (Panama 

and Venezuela) have seen an increase in the 

number of parties to ICC arbitrations as between 

1995 – 2001 and 2002 – 2007. Moreover, in three 

of these countries (Argentina, Brazil and Chile), the 

number of parties to ICC arbitrations has increased 

by between 75 percent and 145 percent over these 

same periods. 

As further demonstrated by the figures below, 

Brazil and Mexico have seen particularly strong 

growth. In this respect, Mexico has produced more 

parties to ICC arbitrations than any other Latin 

American country (a total of 402 parties between 

1996 – 2007). Brazil, meanwhile, has seen the 

highest growth rate in the region in terms of the 

number of parties to ICC arbitrations as between 

1996 – 2001 and 2002 – 2007—i.e., 105 percent 

over these periods. Additionally, Brazil and Mexico 

produce some of the highest numbers of parties to 

proceedings before the International Centre for 

Dispute Resolution (“ICDR”) of the American 

Arbitration Association (“AAA”). 

Number of ICC Arbitration Parties from Selected Latin American States 

0 

67 

131 

84 

207 

17 30 

Source: ICC Bulletin 

4 

SUMMER 2009 

174 

228 

77 

38 

1996 - 2001 

2002 - 2007 

41 38 

Argentina Brazil Chile Mexico Panama Venezuela

As evident from the Compendium, Mexico ratified 

the Panama Convention in 1978. Mexico had ratified 

the New York Convention even earlier—in 1971—and 

was in fact the second Latin American State to adopt 

this agreement. Mexico passed its current arbitration 

law in 1993, which is largely based on the Model 

Law on International Commercial Arbitration drafted 

by the United Nations Commission on International 

Trade Law (the “UNCITRAL Model Law”). Moreover, 

Article 133 of Mexico’s Constitution provides that 

the Panama and New York Conventions constitute 

“the Supreme Law of the State,” placing them above 

Mexican federal law. 

Arbitral Institutions in Latin America 

A Q&A Discussion With White & Case Partner Jonathan C. Hamilton 

Jonathan C. Hamilton is partner in White & Case’s 

Washington, DC office. He serves as Chair of 

the Institute for Transnational Arbitration (“ITA”) 

Americas Initiative and member of the ITA 

Executive Board. 

Q: What is the ITA Americas Initiative? 

A: Established over two decades ago, ITA is an 

educational forum for the exchange of ideas and 

the development of best practices among the 

leading arbitrators and practitioners in the field of 

international arbitration. Its widely-known annual 

conference in Dallas features a mock arbitration 

event that has been a training ground for many 

practitioners in the field. Several years ago, ITA 

established the Americas Initiative and began 

organizing similar annual conferences on the 

ground in Latin America, most recently in Buenos 

Aires (2007), São Paulo (2008) and Mexico City 

(2009). ITA Advisory Board Chair Professor David 

D. Caron and Advisory Board Director David 

B. Winn (who also serves as Vice President of 

ITA’s parent entity, the Center for American & 

International Law), among others, continue to be 

critical to these efforts. 

White & Case 

Unlike Mexico, Brazil did not ratify the Panama 

Convention until 1995, and the New York 

Convention until 2002. Brazil’s Arbitration Act dates 

from 1996, and allows Brazilian courts to refuse 

the recognition and enforcement of foreign arbitral 

awards on largely the same grounds contained in 

Articles IV(1) and V of the New York Convention. 

Brazil’s arbitration law was upheld by the Brazilian 

Supreme Court in 2001. 

Q: How are regional arbitral institutions relevant? 

A: ITA is a neutral organization aimed at promoting 

arbitration and works with diverse organizations. In 

addition to the important role of global institutions 

such as the International Chamber of Commerce 

(“ICC”) and International Centre for Dispute 

Resolution (“ICDR”), regional and local arbitral 

institutions have contributed to the proliferation of 

arbitration in Latin America. As an example, the Lima 

Chamber of Commerce and AmCham Perú have 

significant and growing case loads that reflect the 

emergence of an arbitration-friendly culture in Peru. 

The credibility and strength of local institutions is 

important to the further development of arbitration 

in the region. 

Q: How does ITA’s mission coincide with the role of 

regional arbitral institutions? 

A: The ITA Americas Initiative aims to assist, by 

working with local institutions to organize annual 

conferences in the region. Most recently, the 

Americas Initiative held a roundtable meeting of 

the leaders of regional arbitral institutions at the 

Mexico City conference. The Americas Initiative 

will continue to focus on the role of these critical 

regional institutions. 


5

A Leader in Mexico, 

Brazil and Beyond 

White & Case has 

decades of experience 

handling cross-border 

disputes throughout 

Latin America. 

White & Case was 

the first global law firm 

authorized to practice 

under its own name 

in Mexico, opening in 

Mexico City in 1991. 

Continuing this trend, 

White & Case opened 

an office in São Paulo, 

Brazil in 1997, and has 

advised on matters 

related to jurisdictions 

across Latin America. 


Mexican Dispute Resolution 

Contributing Authors: Lilia Alonzo, Erika M. Serran, Michelle Holmes Johnson 

Arbitration Agreements and the New PEMEX Regulation 

The legal framework of the Mexican public 

entity Petróleos Mexicanos and its subsidiaries 

(collectively and indistinctively “PEMEX”), which 

controls the Mexican oil industry, was amended in 

November 2008. These changes were the result of 

long and intense discussions between the main 

political actors in Mexico. Following is a brief summary 

of the effect of the amendments with respect to 

PEMEX‘s ability to enter into arbitration agreements. 

In connection with arbitration agreements, it is 

important to consider that Mexico is a signatory of 

many international treaties concerning arbitration, 

including the 1958 United Nations Convention on 

the Recognition and Enforcement of Foreign Arbitral 

Awards and the 1975 Inter-American Convention 

on International Commercial Arbitration, and has a 

domestic arbitration statute that largely follows the 

Model Law of the United Nations Commission on 

International Trade Law (“UNCITRAL”). 

Before the amendments were passed by the Mexican 

Congress, Article 14 of PEMEX’s Organic Law 

(Ley Orgánica de Petróleos Mexicanos y Organismos 

Subsidiarios or the “Organic Law”), provided that 

PEMEX had the full capacity to enter into arbitration 

agreements or include arbitration clauses in any kind 

of agreements, whether domestic or international. 

As a result of the recent amendments, the Organic 

Law was superseded by the Law of PEMEX (Ley de 

Petróleos Mexicanos or the “PEMEX Law”), which 

in Article 72 confirmed the rule provided under 

the Organic Law, permitting PEMEX to consent to 

arbitration. Furthermore, the Law Implementing 

Article 27 of the Constitution in the Oil Sector (Ley 

Reglamentaria del Artículo 27 Constitucional en 

el Ramo del Petróleo or the “Oil Law”) separately 

introduces a new rule with respect to PEMEX’s 

arbitration agreements. 

In particular, Article 6, paragraph 2, of the Oil Law 

provides that: 

Petroleos Mexicanos [i.e., PEMEX] shall not 

consent, in any case, to foreign jurisdictions in 

respect of controversies related to contracts for 

works and services in the national territory and in 

the areas where the Nation exercises sovereignty, 

jurisdiction, or competence. Contracts may include 

arbitral agreements in accordance with Mexican 

laws and international treaties to which Mexico 

is a party. 2 

As to the first sentence in this provision, it bears 

noting that the meaning of “foreign jurisdictions” is 

not spelled out. Traditionally, the concept of “foreign 

jurisdictions” has been understood as referring to 

foreign courts. Therefore, we consider that this first 

sentence provides the rule that all controversies 

related to contracts for works and services in the 

national territory will be subject to the exclusive 

jurisdiction of the Mexican courts. 

Notwithstanding the above, PEMEX‘s capacity to 

enter into arbitration agreements does not seem 

to be affected. Indeed, the second sentence of the 

new regulations provides that arbitration agreements 

are permissible in contracts, in accordance with 

Mexican law and international treaties to which 

Mexico is a party. 

2 “Petróleos Mexicanos no se someterá, en ningún caso, a jurisdicciones extranjeras tratándose de controversias referidas a contratos de obra y 

prestación de servicios en territorio nacional y en las zonas donde la Nación ejerce soberanía, jurisdicción o competencia. Los contratos podrán 

incluir acuerdos arbitrales conforme a las leyes mexicanas y los tratados internacionales de los que México sea parte.” 

6 SUMMER 2009

In sum, the new amendments to PEMEX’s legal 

framework do not restrict its capacity to enter into 

arbitration agreements related to contracts for works 

and services in Mexican territory. Furthermore, 


pursuant to the Oil Law, the place of arbitration may 

be located in a foreign country, although the current 

practice of PEMEX is to choose Mexico as the 

exclusive place of arbitration. 

US and EC Join Mexico in Signing Choice of Court Treaty 

On January 19, 2009, the United States became 

the second signatory to the Hague Convention on 

Choice of Court Agreements (the “Convention”). 3 

Following the lead of the US, on April 1, 2009, 

the European Community (”EC”) became the third 

signatory to the Convention. The Convention aims 

to promote international trade and investment 

through uniform rules governing exclusive “choice of 

court” 4 agreements between parties to commercial 

transactions and the recognition and enforcement 

of judgments resulting from proceedings based 

on such agreements. 5 To date, only Mexico has 

acceded to the Convention 6 and commentators have 

often questioned whether the treaty will fail for lack 

of interest. With the signatures of the US and the 

EC, however, the Convention is one step closer to 

entering into force. 7 Moreover, the renewed interest 

of the US and EC in joining the Convention may 

provide incentive for other states to follow suit. 

Purpose and Scope 

The Convention aims to reassure contracting parties 

that where they agree upon an exclusive court to 

hear potential business disputes arising between 

them, that agreement and the resulting judgment 

will be recognized and enforced internationally. 

Unlike in the field of international arbitration, there 

has been no international treaty framework for 

litigation that accomplishes this. 8 Mexico and 

the US, for example, have enforced each other’s 

judgments based on international comity alone. 

The enforceability of judgments has therefore been 

varied and uncertain, leading many parties to choose 

to arbitrate international disputes rather than to take 

their chances with domestic courts. The Convention 

seeks to provide certainty as to the enforcement of 

litigation judgments. 

The Convention applies to international civil or 

commercial cases where the parties have entered 

into an exclusive choice of court agreement. 9 

An “exclusive choice of court agreement” is an 

3 Hague Convention on Choice of Court Agreements, opened for signature, June 30, 2005, 44 I.L.M. 1294 [hereinafter “Convention”]. 

4 In the United States, choice of court agreements are more commonly referred to as “forum selection” agreements. 

5 Convention, Preamble. 

6 Mexico acceded to the Convention on September 26, 2007. 

7 The Convention enters into force after it has been ratified by two state parties. See Convention, Art. 31. 

8 Multilateral treaties on jurisdiction and the recognition and enforcement of foreign money judgments do exist for certain regions; however, the 

United States is not a party to any of those treaties. See, e.g., Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil 

and Commercial Matters, as amended, 29 I.L.M. 1413 (1990) (among EC member states); Lugano Convention on Jurisdiction and the Enforcement 

of Judgments in Civil and Commercial Matters, 28 I.L.M. 620 (1989) (among EC and EFTA member states); Inter-American Convention on the 

Extraterritorial Validity of Foreign Judgments and Arbitral Awards, 18 I.L.M. 1224 (1979) (among OAS member states). See also Inter-American 

Convention on Jurisdiction in the International Sphere for the Extraterritorial Validity of Foreign Judgments, 24 I.L.M. 468 (1985). 

In contrast, the widely-ratified New York Convention governs the international enforcement of arbitral awards. See United Nations Convention on 

the Recognition and Enforcement of Foreign Arbitral Awards, opened for signature, June 10, 1958, 21 U.S.T. 2517, 330 U.N.T.S. 38. 

9 Convention, Art. 1(1). 

7


agreement between two or more parties that 

designates the courts (or one or more specific 

courts) of one Contracting State for the purpose of 

deciding disputes which may arise in connection 

with the parties’ legal relationship. 10 Under this 

definition, a court will presume that the contractual 

designation of the courts of one Contracting State 

is exclusive, unless the parties expressly provide 

otherwise. 11 The choice of court agreement must be 

concluded or documented in writing or by any other 

means of communication that makes the information 

usable for subsequent reference (e.g., e-mail). 12 

The Convention defines an “international” case 

differently for purposes of jurisdiction and for purposes 

of enforcing judgments. For the provisions relating 

to jurisdiction (Chapter II of the Convention), a case 

is “international” unless the parties are residents of 

the same state and both their relationship and the 

elements of their dispute only involve that state. 13 

To come within Chapter II of the Convention, the 

parties cannot choose a court in a foreign state as 

their “chosen court.” 14 For purposes of recognition 

and enforcement of judgments (Chapter III of the 

Convention), the case is “international” as long 

as the judgment was rendered in a court of one 

Contracting State and is sought to be enforced in a 

court of another Contracting State. 15 

The Convention excludes certain subject matters. 

For example, the Convention does not apply to choice 

of court agreements entered into by consumers or 

relating to employment contracts. 16 Other areas 

outside the scope of the treaty include: personal 

injury, torts arising outside of contract, carriage of 

passengers and goods, insolvency, certain maritime 

issues, antitrust and competition, some intellectual 

property rights, family law, wills and succession 

and arbitration. 17 

Jurisdiction 

Chapter II of the Convention governs the obligations of 

courts of Contracting States selected in an exclusive 

choice of court agreement (so-called “chosen” 

courts) and courts of Contracting States not selected 

under such agreements but seized with the matter 

(so-called “seized” or “non-chosen” courts) with 

respect to jurisdiction. First, Article 5 gives a chosen 

court jurisdiction to decide disputes arising out of a 

choice of court agreement, unless the agreement is 

null and void under the chosen state’s laws. 18 The 

chosen court is likewise prohibited from declining to 

exercise its jurisdiction on the basis that a different 

forum would be more appropriate. In addition, 

Article 6 instructs non-chosen courts to dismiss or 

suspend proceedings to which an exclusive choice 

of court agreement applies unless: (1) the agreement 

is null and void under the law of the state of the 

chosen court; (2) a party lacked capacity to assent 

to the agreement under the law of the state of the 

seized court; (3) enforcing the agreement would be 

manifestly unjust or contrary to public policy of the 

10 Id., 

Art. 3(a). 

11 Id., 

Art. 3(b). 

12 Id., 

Art. 3(c). 

13 Id., 

Art. 1(2). 

14 For example, parties who are residents of Mexico with a contract executed and performed entirely in Mexico will not have an international case 

(for the purposes of Chapter II) simply by choosing the courts of Florida in their choice of courts clause. 

15 Therefore, if the Florida court did render a judgment in the example above (see supra at n.14), under Chapter III, the case would be “international” 

for enforcement purposes in Mexico. 

16 Id., 

Art. 2(1). 

17 Id., 

Art. 2(2). However, under Article 17, an insurance or reinsurance contract is not excluded from the Convention even if the contract’s subject 

matter relates to one of the matters excluded by Article 2. 

18 This grant of jurisdiction does not alter the rules on subject matter jurisdiction, the value of the claim, or the internal allocation of jurisdiction 

among courts of a Contracting State. See id., Art. 5(3). 

8 SUMMER 2009

state of the seized court; (4) the agreement cannot 

be reasonably performed for exceptional reasons 

outside of the parties’ control; or (5) the chosen court 

has decided not to hear the case. 19 

Recognition and Enforcement 

of Judgments 

Under Chapter III of the Convention, Contracting 

States must recognize and enforce judgments given 

by chosen courts. 20 When faced with a request for 

recognition or enforcement, the non-chosen (or 

“requested”) court cannot review the merits of the 

judgment given by the court of origin and is bound by 

the findings of fact on which the chosen court based 

its jurisdiction, unless the judgment was given by 

default. 21 However, recognition or enforcement may 

be refused or postponed if the judgment is still under 

review in the state of origin. 22 

Pursuant to Article 9 of the Convention, a Contracting 

State may refuse to recognize or enforce a judgment 

of another Contracting State where: (1) the agreement 

was null and void under the law of the state of the 

chosen court; (2) a party lacked capacity to enter into 

the agreement under the law of the requested state; 

(3) the defendant did not have sufficient notice of the 

pending action in the chosen court; (4) the judgment 

was obtained through some kind of procedural fraud; 

(5) recognizing the judgment is against the public 

policy of the requested state; (6) the requested state 


has already rendered an inconsistent judgment in a 

dispute between the same parties; or (7) another 

Contracting State has rendered an earlier judgment 

between the same parties on the same cause of 

action, provided that the earlier judgment meets the 

Convention’s recognition requirements. 23 

Even if a judgment satisfies these requirements, 

under Article 11 of the Convention a Contracting 

State still may refuse to recognize a judgment to 

the extent that the award compensates the injured 

party for more than actual damages. 24 This limitation 

responds to the concern over frequency and size 

of exemplary and punitive damage awards in the 

United States. Awards that include these types of 

damages are still enforceable or recognizable as 

to the compensatory damages under Article 15 of 

the Convention, which severs the unenforceable or 

unrecognizable aspect of the judgment. 25 

Furthermore, the Convention prescribes the 

documents which should accompany an application 

for recognition or enforcement. The documents 

include, inter alia, a certified copy of the judgment, 

the exclusive choice of court agreement, and any 

documents necessary to establish that the judgment 

has effect or is enforceable in the state of origin. 26 

The Convention does not become effective for 

agreements and judgments until it has been ratified 

by a second party, which could be either the US or 

the EC. 27 

Id 

19 ., Art. 6. 

Id 

20 ., Art. 8(1). 

Id 

21 ., Art. 8(2). 

Id 

22 ., Art. 8(4). 

Id 

23 ., Art. 9(a)-(g). 

Id 

24 ., Art. 11(1). 

Id 

25 ., Art. 15. 

Id 

26 ., Art. 13. The recommended form for the application is provided as an annex to the Convention. 

In accordance with Article 30 of the Convention, upon signing, the European Community made a declaration that it exercises competence over all 

27 

matters governed by the Convention and that its Member States would not each become members of the Convention but would be bound by the 

Convention by virtue of its ratification by the European Community. 

9


Developments in Latin American Arbitration 

Contributing Authors: Sabino Sacco, Francisco X. Jijon, Javier Ferrero, Guido Clichevsky, 

Michael Roche, Mairée Uran-Bidegain 

Stability Guarantees in 

Aguaytía Energy, LLC v. Republic of Peru 

The recent award in Aguaytía Energy, LLC v. Republic 

of Peru 28 underscores the continuing importance of 

stability guarantees as tools for the promotion and 

protection of foreign investment. Stability guarantees 

have long been used in emerging markets to counter 

the risk faced by foreign investors of future changes in 

the legal framework applicable to their investments. 

Many States have responded by granting foreign 

investors certain stability guarantees by contract, 

including freezing clauses (aimed at freezing 

the applicable law of the host state for a certain 

period of time), and economic equilibrium clauses 

(providing for economic compensation in cases of 

changes in legislation). 

The Aguaytía case, brought before the International 

Centre for the Settlement of Investment Disputes 

(“ICSID”), was premised on an alleged breach of 

such a contractual stability guarantee. Aguaytía 

Energy, LLC, a US investor, claimed that Peru had 

breached a legal stability agreement (convenio de 

estabilidad jurídica) executed between the claimant 

and the State within the framework of Peru’s legal 

stability regime. This regulated regime, implemented 

in the 1990s as part of a comprehensive economic 

and legal reform program, allows the Peruvian State 

to enter into legal stability agreements with foreign 

or domestic investors to guarantee the stability of 

certain legal regimes for a limited period of time. 

Peruvian stability agreements “freeze” specific legal 

regimes, for a specific investment, for a specific 

period of time. The contractual right to stability 

granted by these agreements is defined by law 

as the “ultra-activity” of the stabilized laws, that 

is, the applicability of those laws beyond their 

actual term of effectiveness, regardless of whether 

such laws are subsequently modified or repealed, 

or whether any amendments are more or less 

favorable to the affected investors. 29 In the case of 

foreign investors, the laws that may be stabilized 

relate to tax, availability of foreign currency, free 

remittance of profits and capital, exchange rates and 

non-discrimination. 

In the Aguaytía case, the claimant alleged that Peru 

had breached its contractual obligation to guarantee 

the stability of the right to non-discrimination, arguing 

that this stability guarantee implied a promise by 

Peru that it would in fact not discriminate against it. 

In other words, the claimant argued that the legal 

stability agreement granted not only the right to 

stability of the right to non-discrimination, but also a 

free-standing, substantive right to non-discrimination. 

The tribunal rejected this interpretation: 

The conclusion from the plain wording of the 

Agreement and the various legal texts referred 

to in the Agreement, and underlying the juridical 

stability regime of Peru, can only be that the 

legal framework in the crucial various fields 

enumerated in the Agreement will not be 

modified, either in favor of or to the detriment 

of the foreign investor, Aguaytía, during the ten 

28 Aguaytía Energy, LLC v. Republic of Peru (ICSID Case No. ARB/06/13) (Award dated 11 December 2008). White & Case represented the 

Republic of Peru in this case. 

29 See Art. 24 of Supreme Decree No. 162-92-EF, Regulations for the Private Investment Regimes (Reglamento de los Regímenes de Garantía a la 

Inversión Privada). 

10 SUMMER 2009

years duration of the Agreement. Nowhere, 

however, are any individual, substantive rights 

created or guaranteed. What is guaranteed is the 

stability of the legislative framework as it existed 

on [the date of execution of the Agreement]. 30 

As Aguaytía asserted no claim based on a change of 

the stabilized legal framework, the tribunal dismissed 

the case in its entirety. 31 

The Aguaytía award confirms the importance of 

stability agreements as tools for risk management. 

Noting that “it is beyond doubt that stability 

undertakings…are of undoubted importance for 

investors,” the tribunal commented specifically on 

the importance of an agreement granting the stability 

of the right to non-discrimination: 


[T]he “stability of the right to non-discrimination” 

itself is of obvious importance for a foreign 

investor. It freezes the laws, rules and regulations 

applicable to it, as they were in existence at the 

time the Agreement was concluded. This means 

that no new law may be passed which would state 

that certain rules regarding non-discrimination 

would no longer apply to the Claimant. 32 

The Aguaytía award demonstrates that stability 

agreements allow investors to plan their investments 

with the assurance that certain key rules of the 

game will not be changed. This is an important 

benefit for investors investing in emerging markets, 

where political cycles favoring or disfavoring foreign 

investment often may be accompanied by significant 

changes in the host State’s law. 

Entry into Force of the United States-Peru Trade 

Promotion Agreement 

With the enactment of the United States-Peru 

Trade Promotion Agreement (“TPA” or the 

“Agreement”), Peru becomes the second South 

American state (after Chile) to enter into a bilateral 

free trade agreement with the United States. The 

Agreement had been signed on April 12, 2006, 

and entered into force on February 1, 2009. 

The enactment of the Agreement was facilitated 

by an executive order signed by former 

President George W. Bush on January 16, 2009— 

only four days before leaving office—following 

Peru’s compliance with the labor, environmental 

and intellectual property stipulations imposed 

by the United States in the Bipartisan Trade 

Agreement (“BTA”) dated May 10, 2007. Peru 

in turn passed a Supreme Decree on February 1, 

enacting the US-Peru TPA as of that date. 

The Agreement eliminates tariffs and other barriers 

to trade. Chapter 10 of the Agreement contains 

the following guarantees for investors: national 

treatment, most favored nation treatment, fair and 

equitable treatment, full protection and security, 

protection against unlawful direct or indirect 

expropriation and free transfer of funds. 

30 Aguaytía v. Peru ¶ 89. The tribunal added that the fact that stability guarantees were granted to protect investors’ rights “in no way implies a 

substantive right protecting against future discrimination.” Id., ¶ 93. 

31 Id., 

¶ ¶ 76, 97. 

32 Id., 

¶ 95. The role of Peruvian legal stability agreements was also discussed in Duke Energy International Peru Investments No. 1, Ltd. v. Republic of Peru 

(ICSID Case No. ARB/03/28) (Award dated 18 August 2008). In that case, the tribunal emphasized that “legal stability… guarantees foreign 

investors the ‘continuity of the established rules.’” Id., ¶ 210. Referring specifically to tax stabilization, the tribunal ruled that the stability of the 

tax regime guarantees that “laws or regulations that form part of the tax regime at the time the [legal stability agreement] was executed will 

not be amended or modified to the detriment of the investor.” Id., ¶ 227. However, the Duke tribunal also suggested that the stability of the tax 

regime required a stable interpretation or application of the tax laws and prevented an interpretation or application of such laws that was patently 

unreasonable or arbitrary. Id. Peru has filed for annulment of the award. 

11


The US-Peru TPA further establishes dispute 

settlement procedures for investment disputes. 

Specifically, the Agreement provides for arbitration 

pursuant to the 1965 Convention on the Settlement 

of Investment Disputes Between States and 

Nationals of Other States (the ”ICSID Convention”) 

or the Arbitration Rules of the United Nations 

Commission on International Trade Law 

(“UNCITRAL”), as well as in accordance with any 

other rules or arbitral institutions agreed to by 

the parties. 

Development of the Union of South American Nations 

and Proposal for Regional Resolution of Energy Disputes 

The Union of South American Nations (Unión de 

Naciones Suramericanas) (”UNASUR”) has held 

additional gatherings and proposed that it should 

serve as a mechanism for resolving energy disputes 

involving Member States. 

In December 2004, twelve South American states 

created the “South American Community” through 

the signing of the Cuzco Declaration. Nearly four 

years later, in May 2008, representatives of those 

countries met in Brasilia, Brazil to execute the 

Constitutive Treaty (the “Treaty”) of UNASUR. The 

goal of UNASUR is to expand and build upon smaller 

regional organizations such as the Common Market 

of the South (Mercado Común del Sur) (“Mercosur”) 

and the Andean Community (Comunidad Andina). In 

this respect, UNASUR encompasses the entirety of 

the South American continent with the exception of 

French Guiana—including the nations of Argentina, 

Bolivia, Brazil, Chile, Colombia, Ecuador, Guyana, 

Paraguay, Peru, Suriname, Uruguay and Venezuela. 

Article 19 of the UNASUR Treaty establishes that it 

will enter into force 30 days following the deposit 

of the ninth instrument of ratification. For Member 

States that ratify the Treaty after the ninth instrument 

of ratification, it will enter into force 30 days after the 

deposit date of that instrument of ratification. The 

legislative measures emanating from the organs 

of UNASUR will be binding on the Member States 

once they have been incorporated into each Member 

State’s domestic law, according to its respective 

internal procedures. To date, Bolivia and Ecuador 

have ratified UNASUR. 

With respect to UNASUR’s structure, Article I of 

the Treaty contemplates “an entity with international 

juridical character,” comprised of the following bodies: 

(i) the Council of Heads of State and Government; 

(ii) the Council of Ministers of Foreign Affairs; 

(iii) the Council of Delegates; and (iv) the General 

Secretariat. UNASUR’s General Secretariat is 

permanently headquartered in the city of Quito, 

Ecuador, while a separate legislative body—the 

South American Parliament—is to be established 

in the city of Cochabamba, Bolivia. The organization 

is further overseen by a Presidency pro tempore, 

which will rotate among the member states on an 

annual basis. 

Article 2 of the UNASUR Treaty describes its task as 

“build[ing], in a participatory and consensual manner, 

an integration and union among its peoples in the 

cultural, social, economic and political fields.” In 

this regard, UNASUR has established a number of 

top priorities, including: the promotion of physical 

integration, social cohesion and political dialogue; 

the creation of symmetries among member states; 

developments in the areas of the environment and 

telecommunications; and energy integration. 

12 SUMMER 2009

In the area of dispute resolution, Article 21 of the 

UNASUR Treaty provides only for the resolution 

of disputes among Member States relating to the 

interpretation and implementation of the Treaty itself. 

As such, the UNASUR Treaty does not itself provide a 

framework for resolving investment disputes against 

Member States. Nonetheless, as described below, 

UNASUR’s Member States have begun the process 

of exploring options for the regional resolution of 

investment disputes relating to the energy sector. 


UNASUR convened the First South American 

Energy Summit in April 2007 on Margarita Island, 

Venezuela, during which it was proposed that 

UNASUR itself—as a possible alternative to ICSID 

or other choices—should establish a mechanism for 

the resolution of energy disputes involving UNASUR 

Member States. 

Dominican Republic and Peru: 2008 Arbitration Laws 

Both the Dominican Republic and Peru enacted 

new domestic arbitration statutes in 2008. Both 

laws are fashioned after the Model Law of the 

United Nations Commission on International Trade 

Law (“UNCITRAL Model Law”). 

Dominican Republic 

In the Dominican Republic, the adoption of a modern 

arbitration law (Ley No. 489-08) represents an effort 

to replace the prior regime contained in the Code 

of Civil Procedure. The new law complies with the 

country’s international treaty obligations, including 

under the New York Convention which was enacted 

by the Dominican Republic in 2002. In particular, 

Articles 9(4) and 42 of the new law establish that 

international treaties govern the enforcement of 

both: (1) awards rendered in the Dominican Republic 

but enforced abroad; and (2) awards rendered abroad 

but enforced in the Dominican Republic. 

Article 9(6) of the new law provides that the 

enforcement of foreign arbitral awards shall be 

determined by Dominican Courts of First Instance 

located in the Distrito Nacional, whose orders shall 

have effect throughout the country. The procedure 

for the recognition and enforcement of arbitral 

awards is further outlined in Chapter VIII of the 

new law. In particular, Article 45(1) contains the 

grounds for non-recognition of arbitral awards in the 

Dominican Republic—irrespective of the country 

of issuance—which closely follow the grounds 

established in Article 36(1) of the UNCITRAL Model 

Law and Article V of the New York Convention. 

The new law deems arbitration agreements in 

international cases valid as long as they meet 

the requirements of the jurisdiction specified by 

the parties, that is applicable to the controversy, 

or as established under Dominican law 

(Article 10(5)). Moreover, the statute limits the 

authority of Dominican courts over matters subject 

to arbitration. In this regard, Article 12(1) requires 

courts to declare themselves “incompetent” when 

faced with matters covered by an arbitration 

agreement. Additionally, Article 20 of the new 

law adopts the principle of kompetenz-kompetenz 

which allows arbitral tribunals to rule on their own 

jurisdiction, including determinations as to the 

existence and validity of the arbitration agreement. 

The new statute additionally provides for interim 

relief by both Dominican courts and arbitral tribunals. 

In this regard, Article 9(3) allows interim measures 

to be adopted by courts located in the place where 

the award will be enforced or, alternatively, where 

the measures will have effect or where the goods 

affected by such measures are located. At the same 

time, Article 21 permits arbitral tribunals to order 

provisional measures upon the request of one of the 

parties to the arbitration. 


Energy Disputes 

White & Case is a 

leader in the resolution 

of disputes involving 

the energy sector. In 

one recent example, 

White & Case achieved 

complete victory for its 

client the Republic of 

Bulgaria in a US$300 

million claim brought 

before ICSID which was 

the first ICSID case to 

reach an award on the 

merits under the Energy 

Charter Treaty. 

13


Peru 

Peru’s new arbitration statute (Decreto Legislativo 

No. 1071) entered into force on September 1, 2008, 

replacing the country’s prior 1996 General Arbitration 

Law (Ley No. 26572). However, Peru’s 1996 law 

was already a modern statute based on the 1985 

UNCITRAL Model Law. Thus, rather than being 

entirely novel, the 2008 law builds upon Peru's 

experience with arbitration over the past decade, and 

also takes into account the 2006 amendments to the 

UNCITRAL Model Law. This section examines the 

main features of the new statute—some of which 

were already present in the 1996 law. 

In accordance with Peru’s international treaty 

obligations, Article 74 of the new law provides 

that foreign arbitral awards shall be recognized 

and enforced in accordance with: (1) the New York 

Convention, enacted by Peru in 1988; (2) the Inter- 

American Convention on International Commercial 

Arbitration (the “Panama Convention”), enacted 

by Peru in 1989; and (3) any other convention on 

recognition and enforcement of arbitral awards to 

which Peru is a party. In the case of discrepancies 

between these agreements, the new law seeks 

to enforce foreign awards to the maximum extent 

possible, providing that—except where the parties 

have otherwise agreed—“the applicable treaty shall 

be that most favorable to the party who seeks the 

recognition and enforcement of the foreign award.” 33 

Additionally, the new law contains a Complementary 

Provision (No. 14) expressly providing that the 

enforcement of awards rendered in investment 

treaty arbitrations administered by the International 

Centre for Settlement of Investment Disputes 

(“ICSID”) shall be in accordance with the 1965 

ICSID Convention. 

Under Articles 76 and 77 of the new law, 

the recognition and enforcement of foreign 

arbitral awards in Peru is designed as a two-step 

process where courts first recognize an award 

in whole or in part and then order its 

enforcement. Article 75(2) and (3) of the statute 

follows the grounds for non-recognition contained 

in Article 36(1) of the UNCITRAL Model Law and 

Article V of the New York and Panama Conventions. 

Pursuant to its terms, Article 75 shall apply: 

(1) when there is no applicable international treaty; or 

(2) when there is an applicable international treaty 

but the law itself is more favorable to the party 

seeking recognition of the foreign arbitral award, 

taking into account the prescription periods provided 

under Peruvian law (Article 75(1)). 

The 2008 law further affords parties to 

arbitration proceedings autonomy to determine 

issues such as the selection of arbitrators and 

the applicable procedural rules. In this respect, 

Article 23 allows the parties to determine the 

procedure for naming arbitrators, failing which such 

appointments shall be made in international cases by 

either the Chamber of Commerce located in the place 

of arbitration, or by the Lima Chamber of Commerce. 

Article 34 allows the parties to determine the 

procedural rules they wish to govern the arbitration. 

In the absence of such a determination or an 

otherwise applicable procedure, the arbitral tribunal 

shall determine the rules it deems most appropriate 

in light of the circumstances of the case. 

Peru’s new arbitration law also allows interim relief 

to be ordered judicially (Article 8(2)) or by the arbitral 

tribunal (Article 47). At the same time, the Peruvian 

statute contains detailed provisions in Article 47 

clarifying that judicial measures should be sought 

before the arbitral tribunal is constituted. Indeed, 

once a tribunal exists, it has the discretion to “modify, 

substitute and leave in effect” such measures 

(Article 47(6)). 

Other features of Peru’s new arbitration statute 

include: (1) the ability of the arbitral tribunal 

to decide the controversy in either a single award 

or as many partial awards as it deems necessary 

(Article 54); and (2) the extension of the arbitration 

agreement to include non-parties who actively 

33 

All quotations from Latin American arbitration laws contained in this article are free translations from the Spanish original. 

14 SUMMER 2009

participate “in the negotiation, celebration, execution 

or termination” of the contract containing the 

arbitration agreement or to which the agreement 

is related, or who “derive rights or benefits” from 

the contract (Article 14). Finally, the new Peruvian 

law also adheres to the principle of kompetenzkompetenz, 

providing that “[t]he arbitral tribunal 

is the only one competent to decide its own 

competency, including as to exceptions or objections 

Client Alerts 


to the arbitration relating to the inexistence, nullity, 

annulability, invalidity or inefficacy of the arbitration 

agreement…” (Article 41(1)). 

In conclusion, the new arbitration laws enacted in 

2008 in the Dominican Republic and Peru serve 

as positive developments for international arbitration 

in both jurisdictions. 

German Arbitration Institution ("DIS") Launches Project 

IberoAmericana 

Status Quo 

International arbitration proceedings involving parties 

from Latin America are gaining in importance or are 

at least drawing significant attention. The number 

of International Chamber of Commerce (“ICC”) 

arbitration proceedings involving parties from Latin 

America, which are in part conducted in Spanish, 

has increased accordingly. German parties are also 

involved in these proceedings. In addition, south 

of the “Tortilla Curtain,“ national and international 

arbitration has increasingly established itself as 

an alternative form of dispute resolution. This is 

reflected in the legislation of an increasing number 

of states where new arbitration laws have been, and 

are being promulgated. A similar upturn appears to 

be occurring in Spain, where the Club Español de 

Arbitraje has set itself the task of promoting national, 

and in particular Latin American, arbitration and has 

ensured official support for this project. 

This development has been taken note of in European 

centers of arbitration, such as Paris or London, with 

appropriate reactions, whereas Germany has taken 

a fairly passive stance. In any case there are no 

coordinated activities related to the developments 

described, although German jurisprudence has 

an excellent reputation in both Spain and Latin 

America which could also make itself felt in the 

area of arbitration. Moreover, most of the countries 

concerned, including Germany, have based their 

legislation on the Model Law on International 

Commercial Arbitration drafted by the United 

Nations Commission on International Trade Law and 

are following a Continental European approach in 

procedural law, although this is more in the tradition 

of the French Code de Procedure Civile. 

Objective 

The objective of DIS IberoAmericana is to increase 

the visibility of Germany as a potential place of 

international arbitration for Spanish speaking 

countries. The aim is to further encourage the 

exchange of expertise and experience between 

German, Spanish and Latin American arbitration 

practitioners to make clear what contributions can 

be made by German experience to the development 

of arbitration in Latin America based on a transfer of 

Patricia Nacimiento 

15

Assimakis Komninos 


know-how and services in arbitration proceedings. 

However, the objective is relatively modest, because 

only a contribution in addition to contributions from 

others can realistically be sought. 

Means 

In order to pursue the objective, a network of 

interested members, initially coordinated by 

Erik Schäfer and Dr. Patricia Nacimiento, is to 

be established as part of the statutory purposes 

of DIS in a continuous and close coordination 

process with its management and the board of DIS 

IberoAmericana. This network should be opened 

to all interested DIS members who wish to play an 

active role, in particular those who speak Spanish 

and/or have a strong connection with Latin America. 

This would specifically extend to Spanish or Mexican 

members who could be expected to welcome such 

an initiative. 

By creating such a network supported by a large 

number of active members, concentrated activities 

could be undertaken which could otherwise not be 

undertaken given the other important objectives 

pursued by DIS and which will do justice to the 

importance of the Spanish speaking market. 

The European Court of Justice (“ECJ”), in a ruling 

addressed to the House of Lords (a “preliminary 

reference” ruling) on February 10, 2009, held that 

English anti-suit injunctions cannot be available 

in Europe in support of arbitration proceedings. 

According to the ECJ, it is for the third country 

court (in this case an Italian court) to consider the 

validity of an arbitration agreement and thus to 

decline jurisdiction, and not for the English court 

to interfere with that court’s jurisdiction. 

The network of DIS IberoAmericana could provide 

the following: 

■■ 

a forum or “clearing house“ for German companies 

through which general information regarding 

arbitration issues in Spain and Latin American 

countries could be obtained; 

■■ 

publications on current arbitration subjects 

in German, Spanish and Latin American 

legal journals; 

■■ 

maintaining contacts with other similar groups, 

such as the Club Español de Arbitraje or the ICC 

Latin American Group; 

■■ 

invite target groups in Spanish speaking countries 

to DIS events, which could also be organized 

jointly with other organizations; 

■■ 

participation by members of DIS IberoAmericana 

in congresses, seminars, etc. held in Spanish 

speaking countries aimed at promoting DIS and its 

events. Whenever members of the DIS network 

make a speech at such an event, they could do so 

expressly as a member of DIS. 

European Court of Justice Finds Anti-Suit Injunctions 

Unavailable in Support of Arbitration Proceedings 

in Europe 

Anti-suit injunctions have been devised as a means 

to prevent forum shopping and have long been a 

distinct feature of English civil procedure. English 

courts use anti-suit injunctions to restrain a person 

from commencing or continuing proceedings in 

another jurisdiction or forum. If the opposing party 

contravenes such an order issued by a court, a 

contempt of court order may be issued against 

that party. In the context of arbitration, anti-suit 

injunctions aim to safeguard the effectiveness of 

16 SUMMER 2009

the arbitration agreement by enjoining a party from 

bringing a suit before a state court and requiring 

that party to submit to arbitration. 

In August 2000, the Front Comor, a vessel owned 

by West Tankers and chartered by Erg Petroli SpA, 

collided in Syracuse, Italy with a jetty owned by 

Erg and caused damage. The charterparty was 

governed by English law and contained a clause 

providing for arbitration in London. Erg claimed 

the maximum amount of compensation from its 

insurers, Allianz and Generali, and commenced 

arbitration proceedings in London against West 

Tankers for the excess. West Tankers denied 

liability for the damage caused by the collision. 

Having compensated Erg under the insurance 

policies for the losses suffered, Allianz and Generali 

brought proceedings against West Tankers before 

an Italian court in Syracuse in order to recover 

the sums paid to Erg. West Tankers objected 

to that court’s jurisdiction on the basis of the 

existence of the arbitration agreement. In parallel, 

West Tankers brought proceedings before the 

courts in the United Kingdom, seeking to have 

the dispute settled by arbitration as stipulated 

in the charterparty. West Tankers also sought to 

have the two insurers restrained from pursuing 

any proceedings other than arbitration and from 

continuing the proceedings commenced before 

the Italian court. 

The House of Lords, before which the appeal 

was brought in the United Kingdom, asked the 

ECJ whether the Brussels I Regulation 34 on 

jurisdiction and the recognition and enforcement 

of judgments in civil and commercial matters in 

Europe prohibits the courts of an EU Member 

State from making an order to restrain a person 

from commencing or continuing legal proceedings 

in another Member State on the ground that 


such proceedings are in breach of an arbitration 

agreement. It is noteworthy that in other recent 

judgments, including Gasser v. MISAT 35 (implicitly) 

and Turner v. Grovit 36 (explicitly ), the ECJ had 

held that an anti-suit injunction whereby a court 

in Europe prohibits a litigant from commencing 

or continuing legal proceedings before a court of 

another EU Member State, is incompatible with the 

Brussels I Regulation. This was so even where 

that litigant was acting in bad faith. However, 

doubt remained as to whether the ECJ rule was 

also applicable to the case of anti-suit injunctions 

in support of arbitration, because Article 1(2)(d) of 

the Brussels Regulation I excludes arbitration from 

its scope. 

The ECJ held that English-style anti-suit injunctions 

are incompatible with Community law when 

they are granted in support of arbitration. The 

ECJ found that such anti-suit injunctions may 

undermine the effectiveness of the Brussels I 

Regulation, particularly where they prevent a 

court of another Member State from exercising 

the jurisdiction conferred on it by the Regulation. 

In other words, the ECJ was concerned that the 

English court was interfering with the jurisdiction 

of the Italian court. For the ECJ, there was no 

doubt that the preliminary issue of whether the 

arbitration agreement is valid and applicable, which 

is necessary for determining whether the Italian 

court has jurisdiction as to the merits, also comes 

within the scope of the Brussels I Regulation. 

According to the ECJ, the Brussels I Regulation 

does not authorize the jurisdiction of a court in one 

Member State to be reviewed by a court in another 

Member State. Anti-suit injunctions undermine 

the trust that the Member States accord to one 

another’s legal systems and judicial institutions 

and upon which the system of jurisdiction under 

the Brussels I Regulation is based. 

34 Council Regulation 44/2001 of 22 December 2000 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial 

Matters, OJ [2001] L 12/1. 

35 Case C-116/02, Erich Gasser GmbH v. MISAT Srl, [2003] ECR I-14693. 

36 Case C-159/02, Gregory Paul Turner v. Felix Fareed Ismail Grovit et al., [2004] ECR I-3565. 

17

Marco Lam 


It is obvious that the ECJ followed its standard and 

long-standing reasoning and methodology that 

is based on the principle of effectiveness (effet 

utile) of Community law. Since Turner v. Grovit, 

it has been known that the ECJ does not view 

anti-suit injunctions favorably, because these do 

not sit comfortably within the system of full faith 

and credit established by the EC Treaty and by the 

Brussels I Regulation in particular. The ECJ was 

probably aware that its ruling would have a 

negative impact on arbitration, but this was a risk 

that it was willing to take, precisely because of 

its desire to safeguard the broader principle of 

effectiveness of the Brussels I Regulation. 

What the ECJ probably failed to address is the 

importance of arbitration as a matter of Community 

law. It is incorrect to view arbitration solely as a 

creation of private autonomy which from time to 

time may have to allow for inroads by Community 

law; arbitration is itself mentioned in Article 293 of 

the EC Treaty. There, the necessity of recognition 

and enforcement of arbitral awards is mentioned 

side-by-side with the necessity of recognition 

and enforcement of judgments. The fact that 

there was no follow-up in Europe with a specific 

convention on arbitration is not due to the fact that 

arbitration was seen differently, but rather to the 

fact that there was already a very efficient tool to 

ensure enforcement of arbitral awards worldwide, 

and thus also within the then European Economic 

Community, the 1958 United Nations Convention 

on the Recognition and Enforcement of Foreign 

Arbitral Awards. Exactly like free movement of 

judgments, free movement of arbitral awards 

within the EU furthers European integration and is 

extremely beneficial to Treaty freedoms. Arbitration, 

therefore, should be accorded the same degree of 

deference, and if anything there should also be a 

concern as to its effectiveness. 

In conclusion, it is now clear that anti-suit 

injunctions are no longer available in Europe in 

support of arbitration. However, such injunctions 

are still available when they aim at blocking 

court proceedings in non-EU countries. An open 

question remains as to anti-suit injunctions ordered 

by arbitral tribunals. The ECJ ruling does not seem 

to affect them but this may not be a foregone 

conclusion. At the same time, the ECJ ruling does 

not affect the basic principle that in the presence 

of a valid arbitration clause, state courts must 

decline jurisdiction; the ECJ simply thought that 

this was the job of the court of Siracusa (Syracuse) 

in Italy and that English courts should stay away. 

Hong Kong International Arbitration Center Launches 

New Administered Arbitration Rules 

The Hong Kong International Arbitration Centre 

(“HKIAC”) formally launched the HKIAC 

Administered Arbitration Rules (the “Rules”), 

effective September 1, 2008. According to the 

HKIAC, the Rules are: 

1) 

designed for use by parties who seek 

the formality and convenience of an 

administered arbitration; 

the latest addition to HKIAC’s dispute 

resolution services and replace the previous 

HKIAC Procedures for the Administration 

of International Arbitration adopted on 

March 31, 2005; 

18 SUMMER 2009 

2)

3) 

4) 

based on the United Nations Commission 

on International Trade Law (”UNCITRAL”) 

Arbitration Rules and inspired by the “light 

touch” administered approach of the Swiss 

International Rules of Arbitration, although 

references were made to the arbitration rules 

of different institutions around the world in 

drafting the Rules; and 

designed with Chinese-foreign disputes in mind 

and available in Chinese and English versions. 

Prior to the Rules coming into effect, parties who 

opted for a HKIAC arbitration commonly provided that 

the arbitration be under the UNCITRAL Arbitration 

Rules administered by the HKIAC. Parties can now 

consider the application of the Rules in HKIAC 


arbitration. The HKIAC has already received cases 

filed under the Rules. 

The Rules provide for commencement of arbitration 

by a notice of arbitration, followed by an answer to 

such notice, appointment of arbitrator(s), and the 

exchange of statements of claim and defence. There 

is no provision in the Rules for terms of reference 

(save in relation to tribunal-appointed experts’ terms 

of reference), but the tribunal is required to prepare 

a provisional timetable for the arbitral proceedings at 

an early stage of the proceedings. The Rules contain 

a provision for joinder of parties by consent, but no 

provision for consolidation of proceedings. There are 

provisions for confidentiality as well as an expedited 

procedure for claims under US$250,000. 

New Arbitration Bill Introduced at the Current 

Legislative Session in Hong Kong 

On December 31, 2007 the Department of Justice 

of the Hong Kong Special Administrative Region 

(the “DoJ”) published the draft Arbitration Bill and 

implemented a consultation period, during which 

views were sought on the reform of the arbitration 

law in Hong Kong. The consultation period for 

the reform of the Arbitration Law ended on 

June 30, 2008. 

The DoJ is seeking to reform Hong Kong’s Arbitration 

Ordinance to make the law of arbitration more 

user-friendly to both domestic and international 

arbitration users and to create an arbitration regime 

which accords with widely accepted international 

arbitration practices. 

The draft Arbitration Bill adopted the structure 

and provisions of the Model Law on International 

Commercial Arbitration drafted by the United 

Nations Commission on International Trade Law 

(the “UNCITRAL Model Law”) as its framework, 

applying them to both domestic and international 

arbitration and creating a unitary regime. The draft 

Arbitration Bill replaces the somewhat convoluted 

‘dual’ system that currently forms the Arbitration 

Ordinance, whereby separate procedures exist for 

domestic and international arbitration. 

On January 12, 2009, in a speech at the Ceremonial 

Opening of the Legal Year 2009, the Secretary for 

Justice, Mr. Wong Yan Lung stated that “The new 

Arbitration Bill, to unify the regimes of arbitration on 

the basis of the internationally recognized UNCITRAL 

Model Law, will be introduced in the current 

legislative session.” The current legislative session in 

Hong Kong began in October 2008 and whilst its 

exact end date is unknown, the current session is 

expected to end by August 2009. 

Mr. Wong added that “The new law would reinforce 

the advantages of arbitration, including respect for 

parties’ autonomy as well as the savings in time and 

cost for the parties.” 

Alex Charter 

Rachel Compton 

19

Claire Inder 

Matthew Secomb 


Practice Tips 

Tips from the Chartered Institute’s New Protocol 

for E-Disclosure in Arbitration 

The Chartered Institute of Arbitrator’s “Protocol 

for E-Disclosure in International Arbitration” (“CIArb 

Protocol”) was released in October 2008. 37 The 

CIArb Protocol is the first “stand alone” document 

to deal with the disclosure of “electronically stored 

information” (“ESI”) in international arbitration. 

What “tips” can be drawn from the CIArb Protocol? 

Tip 1: Don’t panic! E-disclosure is not 

that different 

Generally, the CIArb Protocol reflects the fact that 

“e-disclosure” is not that different to “standard” 

disclosure. Indeed, most of the basic concepts set 

out in the IBA “Rules on the Taking of Evidence in 

International Commercial Arbitration” 38 (“IBA Rules”) 

are also contained in the CIArb Protocol. The key 

requirements for document requests contained in the 

CIArb Protocol mirror the IBA Rules, necessitating 

a description of the document or of a “narrow 

and specific requested category of documents,” 

and a justification of how those documents are 

“relevant and material to the outcome of the case.” 39 

Both the CIArb Protocol and the IBA Rules also 

provide that when considering disclosure requests, 

tribunals should balance the potential probative value 

of evidence with the likely burden of asking the party 

to collect that evidence. 40 

Moreover, as with “standard” disclosure, the legal 

background of the counsel, clients and the tribunal 

will inevitably influence the scope and mechanisms 

adopted in a particular case, whether the CIArb 

Protocol is applied or otherwise. 

Tip 2: Cooperation with the other side 

is key 

The CIArb Protocol highlights the importance of 

cooperation between the parties at an early stage of 

the proceedings. Article 1 provides: 

In any arbitration in which issues relating to 

e-disclosure are likely to arise the parties should 

confer at the earliest opportunity regarding the 

preservation and disclosure of electronically stored 

documents and seek to agree the scope and 

methods of production. 41 

Early cooperation is critical to dealing with the 

matters set out below. 

Tip 3: Think about the sources of ESI 

Most businesses now store huge quantities of ESI 

on many different storage devices. A company might 

have, for instance, potentially relevant ESI stored 

on computers’ hard-drives, local servers, network 

servers, back-up tapes or servers or individual 

37 Available at: http://www.arbitrators.org/institute/CIArb_e-protocol_b.pdf. 

38 International Bar Association, “Rules on the Taking of Evidence in International Commercial Arbitration,” available at: http://www.ibanet.org/ 

Publications/publications_IBA_guides_and_free_materials.aspx. The IBA Rules define “document” to include “electronic means of storing or 

recording information” (IBA Rules, art. 1). See Rahim Moloo, “Tips Regarding Electronic Evidence and Disclosure in International Arbitration,” 

International Disputes Quarterly (June 2008), http://www.whitecase.com/idq/spring_2008_tips/. The CIArb Protocol also drew on the “Sedona 

Principles”: Best Practices Recommendations and Principles for Addressing Electronic Document Production (2007), which formed the basis of 

domestic reforms in the UK and US to deal with e-disclosure issues. 

39 Compare CIArb Protocol, art. 4, with IBA Rules, art. 3(3). 

40 CIArb Protocol, art. 6; IBA Rules, art. 9. 

41 See also CIArb Protocol, arts. 2 and 3, for emphasis on cooperation and early consideration. 

20 SUMMER 2009

storage devices (even iPods!). ESI from all of these 

sources might need to be accessed to search for 

responsive documents. 

However, not all sources of potentially responsive 

ESI need to be searched: that would, in most cases, 

be too burdensome on the parties. Article 7 of the 

CIArb Protocol creates a rebuttable presumption 

that “reasonably accessible” ESI should be the 

“primary source” for disclosure (“namely, active 

data, near-line data or offline data on disks”). 42 In 

the absence of “particular justification,” it will not 

normally be appropriate to “order the restoration 

of back-up tapes; erased, damaged or fragmented 

data; archived data or data routinely deleted in 

the normal course of business operations.” 43 A 

party requesting disclosure of such electronic 

documents must “demonstrate that the relevance 

and materiality outweigh the costs and burdens of 

retrieving and producing the same.” 44 

Tip 4: Use electronic searches 

One core difference between “standard” disclosure 

and e-disclosure is the quantity and variety of sources 

of ESI. The CIArb Protocol foresees expressly that 

parties can satisfy their obligation to review potentially 

relevant ESI by “the use of agreed search terms,” 45 

avoiding the need for a manual review of each 

individual source of ESI. 

The CIArb Protocol does not indicate which party 

should draft the search terms. As a practical issue, 

this should be agreed between the parties early 

on. If the producing party drafts the search terms, 

the agreed procedural timetable should allow the 

requesting party to review and comment on the 

search terms used. 


Tip 5: Agree how ESI will be produced 

ESI can be produced in a variety of ways, both in its 

“native” electronic format (i.e., the format in which 

the information is ordinarily maintained) or in another 

format. The CIArb Protocol provides that ESI should 

be produced either in native format or in a “reasonably 

useable form.” 46 As a practical matter, the question 

of whether a format is “reasonably useable” may 

depend on the technical capacities of each of the 

parties. Again, the intention of the CIArb Protocol is 

that such matters should be discussed and agreed 

upon between the parties and the tribunal early on. 47 

Another issue that is specific to ESI is the question 

of “metadata,” or “data about data” (e.g., information 

regarding changes made to a document, or the 

date that it was created and/or last accessed). The 

CIArb Protocol establishes a rebuttable presumption 

that metadata need not be produced, requiring the 

requesting party to demonstrate that “the relevance 

and materiality of the requested metadata outweigh 

the costs and burdens of producing the same,” 

unless it can be shown that “the documents will 

otherwise be produced in a form that includes the 

requested metadata.” 48 

Conclusion 

E-disclosure does not change many fundamental 

legal concepts: it is predominantly a change to the 

practical implementation of those concepts and the 

CIArb reflects this. Whether the CIArb Protocol is 

ultimately influential in and of itself, or instead acts as 

a stepping stone towards more detailed guidelines on 

e-disclosure, remains to be seen. 

42 CIArb Protocol, art. 7. 



45 CIArb Protocol, art. 3(vi)(b). Compare Principle 11 of the “Sedona Principles,” supra note 2. The use of search terms is not specifically provided for 

in the IBA Rules. 


47 See the matters for “early consideration” in art. 3 of the CIArb, especially art. 3(ii). 


21


Practitioner Recognition, Practitioner Appointments 

Practitioner Recognition 

Jonathan C. Hamilton (Washington, DC) served as 

a working group member of a new report released 

by the Trade Advisory Group of the Council of the 

Americas/Americas Society entitled “Building the 

Hemispheric Growth Agenda: A New Framework 

for Policy.” Other recent works include: “A Decade 

of Latin American Investment Arbitration” in 

Latin American Investment Treaty Arbitration: The 

Controversies and Conflicts (Kluwer 2008) and “Three 

Decades of Latin American Commercial Arbitration” 

in the thirtieth anniversary issue of the University of 

Pennsylvania Journal of International Law (2009). 

Kim Rooney (Hong Kong) was named as a leader in 

international arbitration by International Who’s Who 

of Commercial Arbitration 2009. Chambers Asia 

2009 also named Kim Rooney “a leading force in 

international arbitration.” 

White & Case International Arbitration Group 

ranked in Band 1 for Arbitration (International) 

Asia-wide and in Band 1 for Dispute Resolution in 

Hong Kong: International Arbitration in Chambers 

Asia 2009. 

On December 6, The Bar Association of the 

District of Columbia, founded in 1871, named 

Carolyn Lamm (Washington, DC) their 2008 

Lawyer of the Year at their annual banquet. 

Rahim Moloo (Washington, DC) has been named 

one of the Muslim Leaders of Tomorrow by the 

American Society for Muslim Advancement, in 

collaboration with the Cordoba Initiative and the 

United Nations Alliance of Civilizations. 

Practitioner Appointments 

Paul Friedland (New York) was named Chair of 

an International Bar Association (“IBA“) task force 

responsible for developing guidelines for drafting 

arbitration agreements. Paul also serves on an IBA 

subcommittee developing a new set of IBA rules for 

“Taking of Evidence in International Arbitration.” 

Anders Reldén (Stockholm) has been appointed 

Chairman of the Arbitration Association for Young 

Lawyers at the SCC Institute (“SYJ“). SYJ brings 

together Swedish lawyers under the age of 45 who 

work in arbitration and commercial litigation and aims 

to increase the younger lawyers’ knowledge of and 

interest in Swedish and international arbitration. 

22 SUMMER 2009

White & Case—Worldwide 

If you have any comments or questions regarding this newsletter or any of the matters discussed herein, 

please contact any of the following members of the International Dispute Resolution Group: 

New York + 1 212 819 8200 

Paul Friedland pfriedland@whitecase.com 

Ank Santens asantens@whitecase.com 

Washington, DC + 1 202 626 3600 

Peter Carney pcarney@whitecase.com 

Jonathan C. Hamilton jhamilton@whitecase.com 

Carolyn B. Lamm clamm@whitecase.com 

Darryl Lew dlew@whitecase.com 

Andrea J. Menaker amenaker@whitecase.com 

Abby Cohen Smutny asmutny@whitecase.com 

Frank Vasquez fvasquez@whitecase.com 

Paris + 33 1 55 04 15 15 

Charles Nairac cnairac@whitecase.com 

Michael Polkinghorne mpolkinghorne@whitecase.com 

Philippe C. Sarrailhé psarrailhe@whitecase.com 

Christopher R. Seppälä cseppala@whitecase.com 

John S. Willems jwillems@whitecase.com 

London + 44 20 7532 1000 

Ellis Baker ebaker@whitecase.com 

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Kathleen Paisley kpaisley@whitecase.com 

Aloke Ray aray@whitecase.com 

John Reynolds jreynolds@whitecase.com 

Robert Wheal rwheal@whitecase.com 

Jason Yardley jyardley@whitecase.com 

Stockholm + 46 8 506 32 300 

Bengt Åke Johnsson bengtake.johnsson@whitecase.com 

Anders Relden anders.relden@whitecase.com 

Claes Zettermarck claes.zettermarck@whitecase.com 


23


Almaty + 7 727 250 7491 

Yuriy Maltsev ymaltsev@whitecase.com 

Beijing + 86 10 5912 9600 

Christopher Corr ccorr@whitecase.com 

Xiaoming Li xli@whitecase.com 

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Mexico City + 52 55 5540 9600 

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Miami + 1 305 371 2700 

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Tokyo + 81 3 3259 0200 

David Case dcase@whitecase.com 

Mark Goodrich mgoodrich@whitecase.com 

Robert Grondine rgrondine@whitecase.com 

24 SUMMER 2009

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Focus: Arbitration in Latin America - White & Case

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