In October 2023, the Law 14,711/2023 was sanctioned, aimed to establish new rules on foreclosures, seizures, mortgages, and transfers of properties to settle debts, by amending certain sections of Law 8,935/1994 (which regulates notary and registration services). Some argue that the inclusion of a legal provision authorizing public notaries to act as arbitrators had two objectives: to eliminate doubts regarding the possibility of them acting as arbitrators, and to popularize and democratize arbitration. However, not only might the objective of popularizing arbitration not be achieved with this ..read more

For several years, the uncertainty of the (un)clean hands principle has been subject to debate due to the diverse approaches taken by arbitral tribunals. However, in September 2023, the tribunal in Glencore Finance (Bermuda) Ltd. v. The Plurinational State of Bolivia (PCA Case No. 2016-39) may have indirectly settled the uncertainty. The case proposes a remarkably clever and quite important approach to the clean hands doctrine, which I discuss below.   Background From 1985 to 1997, Bolivia amended its legal framework by enacting a variety of laws and regulations with the intent of (i) pro ..read more

The Constitutional Court of Ecuador (“Court”) has recently analyzed the constitutionality of two International Agreements. On 28 July 2023, the Court declared unconstitutional the provision contained in chapter 15.20 of the Trade Association Agreement between Ecuador and Costa Rica (Decision No. 2-23-TI/23), among other reasons, because it incorporated an state-private party (investor) dispute resolution clause providing for ICSID arbitration. According to the Court, that clause falls within the prohibition of article 422 of Ecuador’s Constitution that prohibits Ecuador entering into certain i ..read more

On 8 September 2023, a tribunal comprising Prof. Ricardo Ramírez Hernández (President), Prof. John Gotanda and Prof. Philippe Sands issued its award in Glencore Finance (Bermuda) Ltd v. Bolivia (PCA Case No. 2016-39), a bilingual (English and Spanish) UNCITRAL arbitration under the UK-Bolivia bilateral investment treaty (the “Treaty”). A decision on interpretation and correction of the award followed on 6 November 2023. The dispute centered on a mining lease for the Colquiri Mine, a tin smelter, and an antimony smelter. All three assets had been privatized around 2000. In early 2005, Swiss com ..read more

In a decision dated 29 December 2023, the Chilean Court of First Instance upheld an earlier decision dated 7 November 2023, which had granted a pre-judicial conservatory measure in support of a potential ICSID arbitration. The ruling prevents the Telecommunications Regulatory Authority of the Republic of Chile (hereinafter, “Chile“) from calling performance bonds of approximately USD 50 million. The case is relevant for several reasons. In particular, because based on an arguably expansive interpretation of domestic procedural law, the court accepted a notice of dispute under the Chile-No ..read more

On December 8, 2023, a Permanent Court of Arbitration tribunal composed of José Emilio Nunes Pinto (president), Guido Tawil, and Claus von Wobeser issued its final award in Mota Engil v. Paraguay (the “State” or “MOPC”)1)Mota-Engil Ingeniería y Construcción S.A. – Sucursal Paraguay v. Republic of Paraguay – Ministerio de Obras Públicas y Comunicaciones, PCA Case No. 2020-14, Final Award, Dec. 8, 2023 [hereinafter, “Mota Engil v. Paraguay”].. In its final award, the tribunal ordered both Mota Engil and the State to make reciprocal payments due to different contractual breaches (¶ 760). The disp ..read more

Traditionally, investor-state dispute settlement (“ISDS”) has not been linked to Environmental, Social, or Governance principles (“ESG”). At least not explicitly. Nevertheless, a growing number of arbitrations revolve around matters like environmental permits, green incentives, the need for a “social license,” and corruption. Interestingly, these matters have arisen even in the absence of explicit ESG regulations in the majority of the older generation of international investment agreements (“IIAs”). Skepticism surrounds the relationship between ESG and ISDS, however. In a recent report titled ..read more

On 22 November 2023, the Brazilian Arbitration Committee (“CBAr”) and the Brazilian Association of Jurimetrics (“ABJ”) officially launched the final report on the Arbitration Observatory project (“Report”), in an in-person event at the Attorney’s Association of São Paulo that attracted many law students, lawyers, and arbitrators (see here for further details). The Report aims at producing empirical research of the judicial decisions involving arbitration issued by the State Court of São Paulo (“TJSP”), based on statistical and inferential methods, to foster and democratize the access to arbitr ..read more

Another year ends with set records for investment arbitration in Latin America. ICSID reported that, out of the new forty-five registered cases, twenty-one were brought against Latin American and Caribbean states (the annual report covers the fiscal year from July 1, 2022 to June 30, 2023). In other words, almost fifty percent of the new cases registered arose out of disputes in Latin America and the Caribbean. Predictions that Latin America would be at the top of the statistics were not unfounded. Earlier in the year, Maria Jose Monroy reported that, in the past few years, Latin America has w ..read more

Bill no. 2.925/2023 (“Bill”) is intended to amend federal law no. 6.385/1976 (regulating the Brazilian stock market and that created the Comissão de Valores Mobiliários, the Brazilian Securities and Exchange Commission – “CVM”) and law no. 6.404/1976 (regulating joint-stock companies/business corporations). The goal is to ensure transparency in class arbitration proceedings involving stock market investors, corporations, officers, and major stakeholders (“Securities Disputes”), seeking to further protect the investors’ interests. The Bill was being discussed earlier this year by the Brazilian ..read more