REUTERS | Jose Luis Gonzalez

LATAP’s London launch event hosted by Volterra Fietta: Investment treaty arbitration as a norm-generating system in Latin America

Latin American Arbitration Practitioners EU (LATAP) is a project initiated by seven Latin American lawyers specialised in international arbitration and working in top tier law firms across Europe. These law firms include: Volterra Fietta, Shearman & Sterling, Lalive, Hanotiau & van den Berg, Latham & Watkins, Dechert and Schellenberg Wittmer.

LATAP is building a network of practitioners focused on international arbitration and with strong ties to, or experience in, Latin America. To achieve its objective, LATAP organises educational and networking events that provide a platform for young Latin American lawyers to discuss current topics regarding international arbitration in Latin America along with experienced practitioners and arbitrators. The first series of these events was planned in Europe’s major arbitration hubs: Paris, London and Geneva.

The first launch event took place in Paris on 2 October 2019 and was hosted by Shearman & Sterling.

The second launch event, in London, was hosted by Volterra Fietta on 30 October 2019.

This event analysed the norm-generating effects of investment treaty arbitration in Latin America. The topic was addressed by a distinguished panel comprising three seasoned practitioners (Ximena Herrera Bernal, Alejandro García and Jean Paul Dechamps), a government official with a remarkable career (Lesther Ortega Lemus) and a reputable and experienced arbitrator (Sabina Sacco).

The members of the panel were carefully selected to provide a holistic overview of the topic. The diversity of backgrounds generated fascinating insights into various aspects of the discussion. On the one hand, it resulted in the formulation of innovative arguments made by practitioners as to how to defend or contest sovereign measures. On the other hand, it gave a glimpse of views held by government officials who regularly take part in the process of adopting and implementing sovereign measures. Likewise, the event provided the more neutral views of arbitrators who ultimately decide whether certain sovereign measures, and the way they are adopted, comply with international law.

Gunjan Sharma, senior associate at Volterra Fietta, made opening remarks and explained that Latin American states provide a paradigmatic example of two disparate and different responses to investment treaty arbitration: reactive and accommodative.

Sabina Sacco, partner at Lévy Kaufmann-Kohler, focused on the effects generated by investment arbitration awards in decision-making processes and implementation of policies in Latin America. As Deputy Head and Alternate Permanent Representative of the Embassy of Guatemala in the Netherlands, Lesther Ortega Lemus was in an ideal position to provide relevant insights. He explained how sovereign states deal with investment disputes internally and analysed the influence exerted by investment jurisprudence in new investment treaties. Jean Paul Dechamps, founding partner of Dechamps International Law, offered a detailed analysis of the legislative measures enacted by Argentina as a consequence of the wave of investment claims faced during its 2001 economic crisis. Following up on some of the ideas raised by Mr Ortega Lemus, Ximena Herrera, partner at Shearman & Sterling, described the main differences between traditional and new investment treaties involving Latin American parties. Finally, Alejandro García, partner at Clyde & Co, examined the practice of creating regional centres for the settlement of investment disputes in Latin America (such as the one proposed by the Union of South American Nations (UNASUR)). He queried whether it is necessary to create such centres and, if so, the distinctive features they should have.

Moderator Yael Ribco, associate at Shearman & Sterling, led the roundtable and Q&A session which reached the following general conclusions:

  • Investment treaty arbitration has far-reaching implications on how people are governed in Latin America.
  • Arbitrators play an important role in overseeing the conduct of Latin American state entities that exercise sovereignty in one way or another.
  • It is difficult to identify common trends given the different practices and cultural, social and economic differences within Latin American countries.
  • Regardless of the above, the norm-generating effects of investment treaty arbitration in Latin America are palpable either as a means to attract investment (accommodative) or as a way to restrict investors’ rights by increasing the margin of appreciation and police powers of Latin American states (reactive).

The third and final launch event of LATAP will take place on 28 November 2019 and will be hosted in the Geneva offices of Schellenberg Wittmer. The panel will comprise Julian Bordaçahar (Permanent Court of Arbitration), Lukas Montoya (Lévy Kaufmann-Kohler), Beatriz Restrepo (Swiss Chamber’s Arbitration Institution) and Franz Stirnimann Fuentes (Froriep). Ignacio Guaia from Lalive will moderate the panel and the item on the agenda is: “Arbitral institutions in Latin America-related arbitrations”.

Anyone interested in becoming an active member of LATAP can send an email to latap@latap.eu. The LATAP team will provide further information on how to become a member.

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