New York, a Home for Latin American Arbitration?

1. New York, a Home for Latin American Arbitration? • Aníbal Sabater • Partner • Norton Rose Fulbright • February 6, 2014

2. 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.

3. 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. *Available at www.LitigationTrends.com

4. ICDR2012Statistics • 165 Latin American arbitrations • ICC 2012 Statistics • 759 filings • 2036 parties

5. 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 • 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.

6. 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.

7. 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 • 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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