South Florida: A Growing Center for International Dispute Resolution
|Burton A. Landy|
Back in the mid 1980s, Burton A. Landy was hired by a Nicaraguan company in a dispute about royalty payments to a Japanese company. The contract called for arbitration in Miami under the laws of Florida. “Both sides wanted to arbitrate in a neutral U.S. venue,” said Landy, now a partner with Akerman Senterfitt in Miami. “To my amazement the arbitration worked. Since then, international arbitration in South Florida has grown steadily through the years.”
Today, Miami is an up-and-coming center for international arbitration as well as commercial litigation, and the host city for the International Council for Commercial Arbitration (ICCA)’s prestigious biennial congress in 2014. Last May, Landy led a delegation from the Miami International Arbitration Society (MIAS) to Geneva, where the ICCA selected Miami for its “Olympics” of the international commercial arbitration world. Two years from now, approximately 1,000 lawyers from around the world will come to Miami to hear presentations by prominent international arbitration practitioners and scholars in the field.
“This will be the first time the congress has been held in the United States since the 1980s,” says MIAS board member Daniel E. González, a partner at Hogan Lovells, Miami, and co-leader of the firm’s international arbitration practice. “We are already planning the event, which signals worldwide recognition of the growing importance of Miami in the international arbitration arena.”
A Convenient Venue
International attorneys see South Florida as a safe and convenient venue for commercial arbitration. “We are seeing a lot of contracts with Latin American parties that have Miami as the venue for arbitration,” says Manny Garcia-Linares, managing shareholder with Richman Greer. “South Florida is perceived as being a safer environment in terms of being a known place where lawyers and arbitrators can resolve a dispute quickly. Most importantly, Latin American executives and attorneys feel at home in Miami.”
González notes that South Florida’s position at the crossroads of the Americas has benefited the region as a venue. Other advantages include convenient air service to all business centers in the Caribbean and Latin America, and a wide range of options for meeting rooms and accommodations.
Many South Florida attorneys speak Spanish or Portuguese, and interpreters are readily available if needed. In addition, the region’s multilingual professionals, including accountants and engineers, have knowledge and experience in international arbitration. According to MIAS, Miami is also a less expensive location to host international arbitration proceedings compared with traditional arbitration centers such as New York or London.
Like other international attorneys, Landy, González and Garcia-Linares have seen an increase in arbitration cases over the past five years. For instance, Garcia-Linares, who typically arbitrates for private parties, is handling a matter that involves a Chilean company that was importing farm goods into the U.S. “The case had been filed in federal court in New York, and the parties decided to go to arbitration with Miami as the venue”.
Landy recently chaired a panel of three arbitrators in a case with parties on three continents: A European company ordered specialized equipment from a U.S. company to be used in a port in South America. The contract called for arbitration under Florida law with Miami as the venue. “The case had nothing directly to do with Florida or Miami,” Landy says, “but it provides a good example of how we are being recognized and accepted as a good place to settle commercial disputes.”
Benefits of Arbitration
Today, corporate counsels around the world are familiar with the benefits of arbitration. “When we do presentations, it’s now a discussion about how you do arbitration,” says González. “If you go to litigation, the foreign court may not be to your liking or you could end up with a judgment that has limited enforceability.” In contrast, countries that are members of one of the international conventions will honor a foreign arbitrator’s award. So even if the counter party is in China you can enforce the judgment wherever the party has assets. That is a primary appeal of international arbitration in the commercial setting.”
Other advantages include a faster resolution of the dispute, because of limited appeal rights. “Generally, the initial phase will take just as long and be as expensive as a court proceeding,” says González. “But the fact that you don’t face the extended appeals and remanding makes for a more efficient resolution.” For example, González handled a matter in Argentina where the aspects that were subject to arbitration were finished ten years ago. On the other hand, the litigation aspects have been “up and down the court system twice and are still going on.”
One misconception among some international attorneys is that arbitration will be cheaper than a court proceeding. Noting that some of the costs of a trial are underwritten by taxpayers (such as judges’ salaries and courthouse venues), González says the parties in an arbitration pay all the costs, including the arbitrators, meeting rooms, court reporters and interpreters as well as travel and accommodations.
“Another common myth is that if you’ve done trials you can do arbitrations,” González says. “There are many cultural, process and procedural differences between the two. General counsels typically look for practitioners who have training and expertise in this area.”
There are also cultural differences among arbitrators, according to González. U.S. arbitrators may allow increased discovery and e-discovery at the early stages of a matter, compared with their European or Latin American counterparts. “The trend, in general, though, has been toward broader discovery than was true in the past,” he adds. For example, one round of document requests and exchanges usually occurs before the memorials (briefs) are filed. There may be multiple rounds of document discovery, as well as depositions in some matters. “These differences are not a matter of right or wrong,” he adds. “There are simply different ways of getting at the evidence and the facts.”
A Long Tradition
South Florida has a long tradition as an alternative dispute resolution (ADR) center for international cases, and Florida was one of the first states to pass an international arbitration act back in 1986. After the Summit of the Americas in 1994, Landy helped establish the International Center for Resolution of Commercial Disputes in Miami, which operated for several years. Four years ago, Landy co-founded the Miami International Arbitration Society, which now has 60 to 70 members and meets every other month.
On the legal side, the Florida Legislature revised the international arbitration act in 2010 based on the United Nations Council for International Trade Laws (UNCITRAL) model law on international commercial arbitration. “We borrowed a lot from that model and added some Florida wrinkles,” Landy says. “It is the international standard and attorneys from around the world are familiar with its provisions.”
The state’s legal framework also permits parties to use their legal counsel of choice to represent them in international arbitration proceedings conducted in Florida, including counsel from a foreign jurisdiction who are not admitted to practice law in Florida.
Landy notes that South Florida law schools and their students are showing a greater interest in international arbitration. The University of Miami School of Law, for instance, has an international arbitration program chaired by Jan Paulsson, who is also president of the ICCA. “I’m also seeing increased interest in arbitration from our younger lawyers,” Landy says, citing the success of a recent Miami workshop by Young ICCA, an arm of the worldwide organization.
Summing up the region’s growing appeal, Garcia-Linares says, “Miami is not a New York or a London, but we are clearly making a name for ourselves here.
|Miami International Arbitration Society|
The Miami International Arbitration Society (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 related to the resolution of trans border commercial and investment disputes. The society works to maintain and enhance the extensive infrastructure developed to encourage international arbitration in Miami by supporting appropriate legislation, relevant academic programs at area universities, local international arbitration conferences, featuring distinguished practitioners as guest speakers, and providing training and legal updates to its members on the latest developments in international arbitration. The society also provides a forum where practitioners and others interested in international arbitration can network and exchange ideas and information about this growing practice area.
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South Florida Legal Guide Midyear 2012 Edition
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