TDM Latin America Special - Introduction
Article from: TDM 2 (2016), in Editorial
When TDM launched the Call for Papers for this Special Edition on Latin America (the "Special Edition"), we certainly contemplated the possibility that the arbitration community would address the various changes at work in dispute resolution in Latin America. But we perhaps underestimated the breadth of change that would occur and the variety of ways that authors would address those issues. Perhaps the biggest news within the region was the rapprochement with Cuba initiated by the Obama Administration, and the Special Edition has not left this issue aside. But the themes underlying the Special Edition have seemingly imposed themselves on global discourse as many of the countries outside Latin America begin to publicly wrestle with the effects of globalization. The European Union must now resolve the result of the popular referendum of the United Kingdom's membership in the European Union. In the United States, Donald Trump has swept to the Republican nomination by capitalizing, in part, on a tide of discontent at the results of globalization. Latin America was ahead of the curve in having the discussion. Future events will only tell how the conversation will continue.
Taking a conceptual step back, a number of currents are pulling in different directions that challenge current notions of how the world sees Latin America and dispute resolution. López Ortiz, Caicedo and Ahern provide a detailed, critical analysis of the approaches that different Latin American countries are taking to international arbitration. By leaving aside tired assumptions like a monolithic Calvo Doctrine and the backlash against investor-state arbitration, their contribution helps lay the foundation for a critical review of international dispute resolution in the region that touches on a variety of contexts.
The diplomatic opening between the United States and Cuba marks one of the most significant changes in the region, bringing with it new opportunities and moments for reflection. Marigo and Friedman offer a first look at the pending resolution of claims between the two nations-an article that will surely become a reference for those seeking to understand the area.
In other contexts, the changes wrought by globalization leave us with more questions than answers. Brazil's decision to negotiate bilateral investment treaties with Angola, Mexico, Malawi, and Mozambique harkens to a new era of trade patterns, but the existence of any actual dispute resolution mechanism for investors is in doubt. Moreover, the effects of such treaties, based exclusively on political power, is uncertain on other developing countries' efforts to improve the current global investment regime. Bernasconi-Osterwalder and Brauch compare this new generation of Brazilian treaties while Titi looks at international investment law in Brazil and Pereira reviews the enforcement of foreign arbitral awards and judgments. Together, these three articles provide a picture of past, present, and future for international arbitration in relation to Brazil-yet another go-to reference for an evolving, timely topic.
Looking more closely at international arbitration within the nations of Latin America, the speculation over and inquiry into new forms dispute resolution has lead to novel ideas but questions over their use and effectiveness. Hernández G. evaluates the next steps for one of the flagship initiatives of Latin America states looking to preserve key elements of international arbitration while creating their response to the effects of globalization: the Arbitration Center of the Union of South American Nations. Anaya Vera and Polanco Lazo continue the commentary by exploring the possibilities for settlement of disputes through the Court of Justice of the Andean Community. Together, these articles are the guide for curious readers that need an in-depth but concise review of these topics.
Other trends in dispute resolution are slightly harder to track as a regional initiative but no less important to the development of dispute resolution. Specifically, the discussion and use of mediation continues apace, and the Special Edition analyzes this development from a practical and theoretical perspective. Otero and Torres consider commercial mediation in the region while Castañedo analyzes the teaching of mediation and how it can increase in practice in a Latin America context. For a region that has historically rejected the use of mediation, these articles track its growth, a certain feature of dispute resolution in the future.
In a region that has depended on commodity prices and extraction of natural resources, the control over and use of the same continues to pose problems and provoke new policies and legislation. Mexico is an emblematic case, and the Special Edition considers the relevant legislation, administrative contracts, and history of disputes in the sector. Cabrera Colorado and González Sicilia look at the situations where arbitration is available, and Moreno González and Hugues Arthur review the different damages awards. This same tension is treated in Alvarez H's analysis of the issues underlying the negotiations between Colombia and the Fuerzas Armadas Revolucionarias de Colombia, a historic negotiation that has marked the time period of the Special Edition and have just ripened into results.
No TDM special edition would be complete without an analysis of new legislation, recent decisions, and the development of jurisprudence that touches Latin America. Alonso Massa looks at the new Argentine arbitration law, and Hoder considers the damages model in Gold Reserve, an important and recent case going to control of natural resources in Venezuela. Anzola considers the challenges underlying the ability of dual nationals to bring a claim through a bilateral investment treaty against the nation where they reside or are citizens, a topic that is sure to generate further discussion and analysis in the coming years. Pereira de Souza Fleury and Wang take the analysis from a slightly different angle by considering the effect of legislation outside Latin America and its effect on the region, specifically the Foreign Corrupt Practices Act from the United States and the United Kingdom's Anti-Bribery Act. Finally, Ampudia and Pradilla Picas study one of the key topics of globalization, the control and transfer of international currency as governed by bilateral investment treaties.
Perhaps as a sign of the diverse interests in the region, this is an introduction to only the first volume of the Special Edition - a second volume that continues many of the above themes from different angles and perspectives is also nearing completion. As co-editors of the Special Edition, we are grateful for the response and work from the authors that has exceeded our expectations and the always prompt and competent support of TDM and its staff. We look forward to bringing TDM readers the next volume in the Special Edition and further considering the timely topics expertly explored by our authors.