New York, a Home for
Latin American Arbitration?
Aníbal Sabater
Partner
Norton Rose Fulbright
February 6, 2014
New York as a Global Seat of Arbitration
Fulbright’s 3rd Annual Litigation Trends Survey Report, released in 2005, reflected
a strong global demand for arbitration in New York.
Most Frequently Used Venues
25%
New York
London
21%
5%
4%
Paris
Geneva
2%
2%
2%
Singapore
2%
2%
2%
31%
60%
Total
13%
U.S. Respondents
U.K. Respondents
All Other Cities
32%
36%
18%
0%
2
33%
3%
10%
20%
30%
40%
50%
60%
70%
International Arbitration Trends
Fulbright’s 9th Annual Litigation Trends Survey Report*, released in 2013,
aggregated data from 392 in-house attorneys, predominanty from the United States
and United Kingdom. For International Arbitration conducted in the U.S., New York
was identified the preferred seat.
U.S. Respondents
U.K. Respondents
27% prefer
New York
43% prefer
New York
Other U.S. Cities
50%
Houston
23%
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*Available at www.LitigationTrends.com
Other U.S. Cities 57%
ICDR 2012 Statistics
ICC 2012 Statistics
• 759 filings
• 165 Latin American arbitrations
• 2036 parties
Regional Origin of Parties
996
Top 10 Arbitral Locations
250
236
462
200
292
159
127
150
Africa
Asia/Pacific
Europe
Lat.
Am./Carib.
North
America
Most Popular Arbitration Places
Across the Americas by # of Cases
115
100
44
50
20
Canada
:6
Lat. Am.-Other:
12
New York:
22
U.S.-Other: 11
Brazil: 14
Mexico: 11
4
0
29
24
30
15
20
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28 U.S.C §1782 – Assistance to Foreign Tribunals
“The district court of the district in which a person resides or is found may
order him to give his testimony or statement or to produce a document or
other thing for use in a proceeding in a foreign or international tribunal.”
§1782 Actions in New York
• In 2011, 63 §1782 actions were brought in federal courts in New York.
• Five requests were in connection with International Arbitration; three
involved Latin American parties or contracts, all granted.
•
Highlight Cases
•
•
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Chevron v. Donziger: Chevron brought numerous 1782 applications in connection
with Chevron v. Ecuador BIT arbitration, RICO proceedings, and other civil and
criminal proceedings. The 2nd Cir. held that, while it had doubts that BIT arbitration
was “a proceeding in a foreign or international tribunal” for §1782 purposes,
Chevron’s civil and criminal claims involving Ecuador “provided an adequate basis” to
support to its 1782 applications. 629 F.3d 297 (2d. Cir. 2011).
Transplata S.A. v. Navegacao, Et Al.: In connection with a $9MM shipping contract
dispute in the Argentine Arbitral Court, Transplata successfully obtained records from
Bank of America re: transfers to Chilean defendants.
Challenging Awards Under FAA Chapter 10 in N.Y.
• 11 International Arbitration awards involving Latin American parties
were challenged in N.Y. federal courts in 2012 and 2013 through
either petitions to vacate or motions opposing confirmation.
• 5 awards confirmed (2 others confirmed without contest)
• 4 settled
• 2 vacated for: 1) Improper plaintiff; or 2) Abandoned claim
• Highlight Cases
• Gianetti v. Abengoa: Brazilian seller of cane processing plant sought
to vacate awards totaling more than US$110MM on the grounds that
chairman of the panel was conflicted as his firm did transactional work
for affiliates of the party prevailing in the arbitration. Judge Rakoff
denied the petition and confirmed the award.
• Eco Tech v. Pothole Killers: Brazilian lessee of road equipment
sought to vacate interim award alleging that sole arbitrator had
prejudged the case and used the wrong standard for granting interim
relief. Judge Koeltl denied the petition and confirmed the award.
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Enforcing Foreign Awards Under FAA Chapter 2 in N.Y.
• 7 Latin American petitions to enforce foreign arbitral awards under
the New York Convention were brought in N.Y. federal courts in
2012 and 2013.
• 4 fully enforced or settled
• 3 pending
• Highlight Cases
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•
ConocoPhillips v. Petroleos de Venezuela: Conoco was awarded $66.8MM in
arbitration before the ICC for losses incurred due to of OPEC-required
production cuts forced by the Venezuelan-owned oil company. The
enforcement action in S.D.N.Y. was voluntarily dismissed upon settlement in
under two months. ConocoPhilips continued to pursue BIT arbitration against
Venezuela.
•
Cargill v. Mexico: In BIT arbitration before the ICSDR, Cargill was awarded
$77MM for damages incurred as a result of Mexican taxes and permit
requirements for the import of high fructose corn syrup. After the Canadian
courts refused to vacate the award, Cargill sought enforcement in S.D.N.Y.
The action was dismissed after settlement.
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