Since the beginning of the 21st century, Latin America has sought the proper response to international disputes. That effort has been complicated by the opportunities and realities of globalization and its relation to its effects on local economies and government policy. While new export markets have driven growth in certain sectors, the desire to utilize local resources for internal development has presented significant challenges, both economic and political. We invite submissions for a TDM Special Issue on Latin America that seeks to dive in to these issues and the tension resulting from them, both from a theoretical and practical perspective. The topics to be discussed include the following :
Disputes Involving States and State Parties.
Along with East Europe, Latin America has been the region that has experienced the most arbitrations involving a State or a State entities. Claimants have challenged State measures including upfront expropriations or mere State regulatory decisions in different industries spanning from the financial sector (Abaclat v. Argentina) to trade transactions (Cargill v. Mexico). We seek contributions discussing the impact of these arbitrations in the region considering, among others, the effect on the political mood, Sovereign decisions, State´s treaty practice or the overall consequences on the use of arbitration as a dispute resolution system in the region. We would also appreciate receiving contributions counting stock of cases by country or regionally with an analysis of sectors involved and the challenged Sovereign measures.
Control of Local Laws and Courts over International Transactions.
For decades, the major financial centers (New York, London, Paris, Hong Kong) have essentially exported their legal norms through the application of their laws and legal customs to contracts, investments, and dispute resolution methods. Until recently, Latin American countries have done little to change the status quo, increasingly enforcing arbitration clauses calling for dispute resolution outside national boundaries and generally enforcing awards rendered in other jurisdictions. But it appears the tide is changing. Perhaps emblematically, Mexico has embraced reform of the hydrocarbons sector to attract private, foreign investment, but it has also passed legislation making certain administrative actions non-arbitrable. At the same time, there is increasing use of transnational rules, instead of the traditional application of a particular State’s law. For example, model contracts and State laws have started citing to best practices as a source of transnational rules. We seek contributions discussing whether such a change is occurring and its impacts, including the limits of the control of local courts and laws, the types of legal teams and strategies necessary to handle these disputes, and the effect on various cities as potential seats of arbitrations and locations for international dispute resolution practices.
Changes in Dispute Resolution Methods.
While certain countries have denounced or rejected the Washington Convention and bilateral investment treaties, there has not been a whole scale move away from international investment arbitration. International commercial arbitration has grown rapidly in the region at the same time. In reality, sovereigns and their instrumentalities still select arbitration, often arbitrating under the UNCITRAL Arbitration Rules, the Rules of Arbitration of the ICC, the Rules of Arbitration of the ICDR, and other institutions. Sovereigns have also initiated a process of renegotiation of the old investment regime moving into new treaties or free trade agreements with investment chapters. The regional arbitration Center at UNASUR seems also to be moving forward. We seek contributions analyzing the changes that have occurred and discussing the effects these changes will have on important issues, such as transparency, ability to attract foreign capital, and methods of dispute resolution.
Implications of Investment by "Multi-Latinas" and Access to Changing Markets.
After the financial crisis of 2008, corporations based in Latin America have continued to become increasingly assertive on the international stage. We have seen companies, from small to large, expanding outside their borders to the rest of Latin America, Africa, and the United States. At the same time, the United States has dramatically changed its position in relation to Cuba-a policy change that will undoubtedly impact investment in the country for years to come. We seek contributions studying the impacts of these changes, including the application of extraterritorial regulatory regimes (FCPA, UK Anti-Bribery Act, FATCA, embargoes, sanctions, and similar laws), the preference by Multi-Latinas of dispute resolution in local or regional arbitration institutions, and analysis of regulatory and political changes in relation to Cuba.
Regional and National Disputes.
Growth in intra-region trade and investment among Latin American companies has led to proposals for local and regional solutions to international dispute resolution. Those solutions look to local business, legal and political culture, while also incorporating practices from the US, the UK, Western Europe and perhaps China. We seek submissions addressing the rapid development of intra-region international dispute resolutions systems, including successes, failures and realistic assessments of future prospects.
In addition to the specific sub-topics mentioned above, the issue’s coordinators are open to considering other relevant issues focusing on the consequences of the competing considerations above, especially from diverse perspectives and fields.
Proposals for papers (e.g. abstracts) should be submitted to the editors. Intended publication date : final quarter of 2015.
Contact details on the TDM website here