Introduction - ICCA 2014

International commercial arbitration as the preferred dispute resolution mechanism continues to show signs of strong support and growth. The ICCA 2012 Congress recently wrapped up in Singapore boasting record attendance. An inspiring 1,059 delegates were welcomed by Justice Sundaresh Menon, Singapore’s then-attorney general, who spoke about the coming of a new age for international commercial arbitration. As this uptrend continues, ICCA 2014 promises to be even more successful. All eyes will focus on North America and its host city Miami as it continues to evolve into a global centre for international arbitration.

Compared with our European counterparts, the Americas’ arbitration roots are relatively young. Despite that, 24 per cent of ICC cases filed in 2010 involved parties from the Americas.¹ US parties continue to be the most numerous of all nationalities in ICC cases.² In 2010, the number of US parties engaged in arbitration rose by 14 per cent compared to 2009.³ Parties from Latin America and the Caribbean also grew by 23 per cent, from 241 in 2009 to 297 in 2010.⁴ New York City, Mexico and Miami made the list of the top 10 venues in the world selected for arbitration, while 14.5 per cent of ICC cases selected a Latin American city as their preferred venue for arbitration.⁵ The perspective of continued growth is the same across the practice, including other administered and ad hoc arbitrations. In short, the Americas are witnessing sustained growth and ever-increasing interest in arbitration. Nothing illustrates the importance of arbitration to the Americas better than Miami winning the bid to host ICCA 2014; the Congress’ second appearance in the United States⁶ and fourth appearance in North America in ICCA’s history.

Miami’s bid for ICCA 2014 has been years in the making. Locally, the Miami International Arbitration Society (MIAS) has served as the platform for the effort.⁷ Practitioners who have spent years promoting a culture of arbitration as the preferred method of dispute resolution paved the way. MIAS was founded in order to promote the use of international arbitration and mediation, and the selection of Miami as the situs for international arbitration proceedings. They have been one of the driving forces in the establishment of Miami on the international commercial arbitration scene. Accordingly, a group from MIAS, including Chairman Burton Landy of Akerman Senterfitt; Jose Astigarraga, founding partner of Astigarraga Davis; Dan González, co- director of the international arbitration practice at Hogan Lovells US LLP; John Barkett, partner at Shook, Hardy & Bacon; and Judith Freedberg, the International Arbitration programme director at the University of Miami School of Law, went to Geneva to present Miami’s bid.

Miami was selected due to a multitude of factors, including investment by the legal community and academia. The University of Miami recently launched an LLM programme for studies in international arbitration. The programme has attracted some of the world’s preeminent authorities in this field, including Jan Paulsson, past president of the London Court of International Arbitration (from 2004 to 2010), a member of the Permanent Court of Arbitration in The Hague, and a board member of the American Arbitration Association, just to name a few of his accolades. The programme’s director is Judith Freedberg, the former general counsel to the Permanent Court of Arbitration.⁸ Among her many past accomplishments is her service as head of the Department of International Commercial Arbitration at TMC Asser Institute for International Law at The Hague. Florida International University also launched a Global Legal Studies Initiative to research legal issues of critical international importance.⁹ Among their priorities is the study of international litigation and arbitration through research and by hosting annual summits.

In addition to being a multicultural city with multilingual professionals, Florida’s statutory and judicial environments welcome foreign attorneys to arbitrate locally. The Florida Bar adopted a rule that allows non-Florida attorneys to participate in international arbitration proceedings in Florida.¹⁰ With the International Litigation Section of the Florida Bar, which included the help of MIAS members, such as Eduardo Palmer, Edward Mullins and others in 2010, the Florida legislature passed legislation¹¹ to adopt the Model Law on International Commercial Arbitration developed by the UN Commission on International Trade Law (UNCITRAL) into Florida’s Arbitration Act. Florida is only the seventh state in the United States to adopt the Model Law. The passage of the Model Law solidified Miami’s position as a strategic arbitral venue. Beyond its legal climate, Miami’s geographic location, robust transportation hub and reputation as the crossroads of the world strengthened its case to serve as the ICCA 2014 host city.

In addition to ICCA 2014, there are several other international commercial arbitration conferences set in Miami, further highlighting it as a global centre for dispute resolution. For example, the International Centre for Dispute Resolution (ICDR) and the International Bar Association (IBA) co-hosted the 10th Annual Miami International Arbitration Conference: The Greatest Hits between 9 and 11 September.¹² The conference covered key relevant issues in the proliferation of commercial arbitration throughout the Americas. In October 2012, the American Bar Association’s section of International Law hosted its fall meeting in Miami as well.¹³ Practitioners from more than 90 countries united to discuss current international legal issues.

On the legal front, in the United States, courts continue to favour arbitration. On 25 June 2012, the United States Court of Appeals for the Eleventh Circuit, which reviews matters out of Florida among other states, decided in favour of allowing foreign parties involved in foreign arbitration proceedings to seek discovery from a person or entity located in the United States.¹⁴ This decision is significant because there is disagreement in United States federal courts on the extent to which parties involved in foreign arbitrations may rely on federal statutes and the Federal Rules of Civil Procedure to seek discovery from US entities. In Consorcio Ecuatoriano, the Eleventh Circuit affirmed a district court’s grant of an ex parte application for judicial assistance under section 1782 to obtain discovery for use in foreign arbitration proceedings in Ecuador.¹⁵ In coming to its decision, the Eleventh Circuit held that the arbitral tribunal constituted ‘a foreign or international tribunal’ within the meaning of section 1782.¹⁶

A 1782 application creates an avenue for litigants in legal proceedings outside the United States to apply to United States courts for assistance in obtaining evidence for use in non-US proceedings.

Accordingly, in those US jurisdictions where the courts have found the federal statute applicable, parties who wish to obtain discovery in a foreign tribunal may file an application under section 1782 in the district court where that discovery is located. More specifically, section 1782 provides that ‘any interested person’ may file an application with a federal district court seeking discovery from a person or entity in the United States as long as the evidence is ‘for use in a proceeding in a foreign or international tribunal.’¹⁷ The Eleventh Circuit relied on the United States Supreme Court decision in Intel Corp v Advanced Micro Devices, Inc, which emphasised the breadth of the statutory term ‘tribunal’.¹⁸ The Eleventh Circuit’s decision is vital for parties engaged in international arbitration who are looking to broaden the scope of discovery in aid of foreign arbitral proceeding. Moreover, it can be expected to expand the use of section 1782 applications related to foreign arbitrations.

Also of note in the United States, on 8 August 2012, the United States Court of Appeals for the Second Circuit, which reviews matters out of New York and neighbouring states, issued a decision confirming an award of €30 million in damages against the Kingdom of Thailand.¹⁹ In 2005, Walter Bau AG, a German construction company, filed for arbitration against Thailand pursuant to a bilateral investment treaty signed between Germany and Thailand.²⁰ The action was brought under UNCITRAL Rules and concerned a dispute relating to the construction of the Don Muang toll road.²¹ Walter Bau claimed that the Thai government unlawfully interfered with its investments, violating the treaty.²² As a result, Walter Bau alleged that they suffered substantial financial losses. The arbitration tribunal awarded Walter Bau €30 million in damages. In 2010, Walter Bau successfully confirmed the award under 9 USC section 201 et seq, which implements the New York Convention. The Thai government appealed.²³

On appeal, the Thai government argued that the district court should have independently adjudicated the arbitral tribunal’s ruling that it had jurisdiction instead of only performing a deferential review of the tribunal’s decision.²⁴ The Second Circuit rejected Thailand’s contention and held that by incorporating the UNCITRAL rules, the parties had agreed that the tribunal should rule on its own jurisdiction.²⁵ Accordingly, the Second Circuit affirmed confirmation of the arbitration award indicating that United States courts have an interest in confirming foreign arbitral awards.²⁶

Commercial code reforms in other parts of North America that touch on international arbitration are also worth noting.²⁷ For example, in January 2012, Mexico adopted important reforms to the laws that regulate its public-private partnerships (PPP). These PPP’s are long-term contractual relationships between the public and private sectors that are designed to facilitate the rendering of services and building of infrastructure to increase investment in that country.²⁸ In what appears to be an effort to further facilitate efficient dispute resolution procedures, and perhaps accommodate private-sector concerns, Mexico included article 139(1) of the PPP law, which authorises the public-private partnerships to refer certain contractual disputes to arbitration.²⁹ Arbitration provisions are not new to public-private arrangements in Mexico, but their availability represents a continuing effort by the Mexican government to encourage the flow of private capital into the country. However, the arbitration provision continues to reserve to the sovereign through its federal courts matters concerning the termination of a concession or the authorisation of the concession, and other official acts of the government. Notwithstanding these limitations on the reach of arbitral provisions in PPP contracts, Mexico’s continued commitment to arbitration confirms that the movement is on the rise.

As a rising tide lifts all boats, North America is benefiting from the wave of increased interest in international arbitrations. In February, the International Court of Arbitration of the ICC opened an office of the ICC Court’s Secretariat in New York.³⁰ The first overseas office of the Secretariat was opened in Hong Kong in 2008 and an ICC representative office was opened in Singapore in 2010. The goal of the expansion to New York is to increase the ICC’s presence in North America and provide better access to counsel, arbitrators and parties alike. Through its office in New York, the ICC joins the ICDR and the International Division of JAMS as providers of international arbitration services in New York City.

Additionally, JAMS opened a dispute resolution centre in Miami. Chris Poole, president and CEO of JAMS declared that ‘Miami was the natural choice for our next Resolution Centre Opening. It’s an important international business community with a lot of opportunity.’ The JAMS office opening adds to the landscape of institutions providing dispute resolution services in Miami.

In sum, international commercial arbitration in the Americas is on an upswing. In a survey conducted of major corporations who rely on international commercial arbitration, research showed that the most popular and the most used institutions for international commercial arbitrations were the ICC and the ICDR, respectively.³¹ Both institutions have made significant investments in North America. As Miami prepares for ICCA 2014, the growth prospects for practitioners in the field of international commercial arbitration have never looked better.

Notes

1. 2010 Statistical Report, 22 ICC Int’l Ct of Arb Bull 1 (2011).
2. Id.
3. Id.
4. Id.
5. Id.
6. In 1986, the conference was held in New York City.
7. For more information on MIAS, see www.miamiinternationalarbitration.com.
8. See University of Miami School of Law LLM Program on International Arbitration Specialization, www.law.miami.edu/iglp/international_arbitration/.
9. See FIU Global Legal Studies Initiative, http://law.fiu.edu/academic-information/international-and-graduate-studies-2/global-legal-studies-initiative/.
10. R Reg Fla Bar 1.3.11 (d), (e).
11. 2010 Fla Laws chapters 2010-60.
12. For more information on conference, see https://www.aaau.org/media/12688/aaa288_10thannconfmiamiagenda_final_web-7-10.pdf.
13. For more information on conference, see www.americanbar.org/calendar/2012/10/section_of_internationallaw2012fallmeeting.html.
14. Consorcio Ecuatoriano de Telecomunicaciones SA v JAS Forwarding (USA), 685 F.3d 987 (11th Cir 2012).
15. Consorcio Ecuatoriano, 685 F.3d at 990.
16. Id.
17. 28 USC section 1782.
18. 542 US 241 (2004).
19. Schneider v Kingdom of Thailand, No. 11-1458, 2012 US App LEXIS 16508 (2d Cir 8 August 2012).
20. Id. at *2.
21. Id. at *3.
22. Id. at *2-3.
23. Id. at *4.
24. Id. at *2.
25. Id. at *9.
26. Id. at *13.
27. See Herfried Wöss, Mexico: Dispute resolution under the new public- private partnerships law, Global Arbitration Review, 23 May 2012, available at www.woessetpartners.com/BackOffice/manager/pdf/64.pdf.
28. Id.
29. Id.
30. See ICC to open office of the Court in New York, available at www.iccwbo.org/News/Articles/2012/ICC-to-open-office-of-the-Court-in-New-York/.
31. See International Arbitration: Corporate Attitude and Practices, 2008, available at www.pwc.co.uk/forensic-services/publications/international-arbitration-2008.jhtml.