MIAS Arbitration Resources
Overview of International Arbitration
With the ever increasing amount of global trade and investment, businesses are more focused than ever before on the need to find a suitable means for resolving international commercial and investment disputes. Historically, parties often resorted to national court systems and the party with the most bargaining power was able to insist on the application of its national law by its own national courts in the event of a dispute, thus placing the other party at a potentially significant disadvantage. Today, businesses are more sophisticated and often seek to find a neutral venue and means for resolving international commercial and investment disputes, such as international arbitration.
One of the main characteristics of international arbitration is the notion of party autonomy. This means that parties to an international commercial transaction can fashion the dispute resolution clause in their contractual agreement to provide for international arbitration in a way that meets their particularized needs. Arbitration is a private dispute resolution process where parties agree in writing to submit their potential disputes to an arbitral tribunal, usually comprised of one or three arbitrators, instead of using a national court system. Such proceedings are typically more flexible and informal than court proceedings. The parties agree on the law that will apply and the location where the proceedings will occur, both of which are often chosen from a neutral jurisdiction, as well as the arbitral rules that will govern the proceedings, and even the language in which the proceedings will be conducted. The arbitration can be administered by well established international arbitral institutions like the International Chamber of Commerce (ICC), the International Centre for Dispute Resolution (ICDR), JAMS or the London Court of International Arbitration (LCIA), or can be conducted ad hoc according to procedures specified by the parties or established by the arbitral tribunal.
The arbitral tribunal hears witnesses and receives other evidence and legal arguments presented by the parties during hearings conducted in a private setting and renders a binding decision on the dispute. The tribunal renders its decision in the form of a written award that, if it complies with the New York Convention on the Recognition and Enforcement and of Foreign Arbitral Awards, can be executed and enforced in many countries throughout the world. This means that arbitral awards are typically far easier to enforce internationally than judgments obtained from national courts because there are very few international treaties concerning the enforcement of court judgments. As a result, a party seeking to enforce a court judgment in a foreign jurisdiction must often undergo a lengthy process which involves commencing new legal proceedings in the country where the judgment is sought to be enforced. Arbitral awards also have more finality than court judgments due to the limited ability to appeal such awards. In summary, international arbitration provides a fair, efficient, and cost effective means of resolving disputes arising from international trade and investment.
For a more in-depth assessment of the benefits of international arbitration, please read the 2015 Queen Mary-White and Case International Arbitration Survey.
Arbitration in Miami
Miami: An International Arbitration Center for the Americas and Beyond
One of the major benefits of international arbitration is that the parties to a commercial agreement are free to select the location where international arbitration proceedings will be conducted in the event that a dispute arises. This decision is usually made during the initial stage of the commercial relationship when the parties are negotiating the dispute resolution clause in their contract. Because parties embarking on a new venture are understandably more focused on the contractual terms relating to the anticipated success of their endeavor, the terms of the dispute resolution clause are often times cobbled together at the last minute without much thought, using clauses from prior contracts which may contain hidden defects that may create significant legal problems later or even render the clause unenforceable. Accordingly, in-house counsel and outside firms advising their clients during such negotiations should carefully consider such clauses and should take great care when selecting the location where any potential international arbitration proceedings will occur.
Business executives and legal practitioners involved in contractual negotiations relating to commercial transactions in the Americas and elsewhere are increasingly selecting Miami as the seat for international arbitration disputes. Due to a variety of factors, Miami has emerged as a viable and preferable alternative to traditional international arbitration centers such as London, Paris, New York, or Geneva, in terms of a venue for arbitral disputes arising from throughout the Americas and beyond. This includes disputes related to the increasing amount of Asian investment in Latin America. Miami's emergence as an international arbitration center is based on the development of a sound and multifaceted infrastructure to support international arbitration and the existence of innate qualities that provide it a competitive advantage over other jurisdictions in the region.
Because of its extensive commercial and cultural ties to Latin America, the State of Florida has enacted targeted legislation and regulations over the course of the last three decades designed to provide a sound and sophisticated legal framework to promote international arbitration in Florida. This legal framework includes modern international arbitration legislation and progressive rules that permit 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 is not admitted to practice law in Florida. Another critical piece of the infrastructure in Miami is the existence of an independent and transparent judicial system with vast experience in handling legal proceedings ancillary to international arbitration matters. The professionalism and integrity of our judiciary means that the business community can be confident that any ancillary court proceedings relating to arbitration matters will be handled in a fair and efficient fashion. Miami also benefits from the support provided by its leading universities, which continue to make a substantial contribution to teaching, research, and publication in the area of international arbitration, and from the fact that it serves as the host city for international arbitration conferences organized by the world's leading international arbitration organizations.
Miami is also a thriving international and cosmopolitan city with a large workforce of first-class bilingual and multilingual professionals, such as attorneys, accountants, engineers and others, who have extensive knowledge and experience in international arbitration. In addition, Miami is a more convenient and far less expensive location to host international arbitration proceedings relating to disputes arising in the Americas and elsewhere than traditional arbitration centers such as New York or the previously mentioned cities in Europe. The nightlife, fine dining, year-round sunshine, and beautiful beaches in Miami also make it an exciting place to visit. Taken together, these various factors combine to help make Miami an ideal forum to conduct international arbitration proceedings.
Independent and Transparent Judicial System and Pro-Arbitration Legal Culture
One of the most critical components necessary to establish a suitable venue for hosting international arbitration disputes is the existence of an independent and transparent judicial system that has a legal culture which favors arbitration. While the passage of legislation favoring international arbitration and similar measures designed to enhance the arbitration climate in a given jurisdiction are important and necessary, the international business community will not feel confident in selecting a particular location as the seat of an arbitral dispute unless it believes in the integrity of the relevant local and national court systems. Courts are critical to the arbitration process, because they are often called upon to conduct legal proceedings that are ancillary to, or otherwise in aid of, ongoing arbitrations. Such proceedings include efforts to compel or stay arbitrations, requests for interim relief in the form of injunctions, selection and appointment of the tribunal, enforcement of subpoenas issued by tribunals, and various other proceedings, including efforts to either confirm and enforce or vacate arbitral awards.
Freedom of Choice of Counsel
An important factor that is often overlooked in selecting the seat of an international arbitration proceeding is whether the local laws regulating the practice of law in a given jurisdiction make clear that parties are free to select counsel of their choice to represent them in such proceedings, regardless of whether their counsel of choice is admitted to practice in that jurisdiction. This is often a grey area of the law that is fraught with many potential hazards. Only a few jurisdictions throughout the world, especially in the Americas, have laws that clearly provide that an attorney need not be admitted to practice in the location where the arbitration is taking place in order to participate in an international arbitration proceeding occurring in that location. The laws of most jurisdictions either prohibit or place severe restrictions on such a practice, or, at best, are unclear. Although local practitioners in such jurisdictions may attempt to downplay this important hazard by offering assurances that these laws are seldom enforced, the fact remains that this situation presents a substantial and unpredictable risk.
Accordingly, the International Law Section of the Florida Bar worked together with many international arbitration practitioners in Florida in 2003 in order to promote the promulgation of rules by the Supreme Court of Florida that clearly allow parties to select counsel of their choice to represent them in international arbitration proceedings conducted in Florida, regardless of whether their counsel of choice is admitted to practice in Florida. In addition to the significance of the enactment of these important rules, the fact that countless international arbitration practitioners in Florida worked together to achieve this objective demonstrates Florida's commitment to continue to establish itself as a leading venue for international arbitration.
These rules provide parties a vital right to use their counsel of choice when conducting an international arbitration proceeding in Florida. Usually parties to an agreement choose neutral territory as the location of the arbitration to avoid giving either party an advantage, and the choice of law is typically different from that of the forum. Thus, if parties are prohibited from using their own counsel who is familiar with the transaction and the operation of the parties' businesses, together with the chosen law, many of the benefits of international arbitration are lost.
Thriving Infrastructure Geared Toward International Arbitration
Through years of effort, Miami has established a strong infrastructure to support and promote international arbitration in Miami. Recognizing the importance of international trade and investment to Florida's economy, Florida began to pass legislation in the mid- 1980s in order to encourage international arbitration in Florida. These efforts have led to the creation of conditions that place Miami as one of the leading world venues for international arbitration.
Miami's outstanding universities provide a strong academic foundation to nourish the continued study and development of international arbitration practices. The University of Miami School of Law has a rich tradition in the area of international law, particularly with respect to Latin America, and has a variety of legal programs and academic journals that focus on this area. These programs include various courses in international litigation and arbitration, which are taught by world-renowned scholars and are attended by students from throughout the Americas and Europe. As a further indication of its commitment in this area, the University of Miami has announced its intention to create a center specifically focused on international arbitration. The center will offer courses in international arbitration and promote academic research and writing in this area, as well as offer practical training to international arbitration practitioners. Florida International University, a state-charted academic institution that is also based in Miami, recently created its own law school which, true to its name, also focuses extensively on international law, including international litigation and arbitration. The work of these and other local academic institutions is an invaluable resource and has helped to create a large local workforce of experienced and sophisticated international arbitration practitioners.
In addition, the United States Council for International Business (USCIB) recently created the Arbitration Sub-Committee for the Florida region. The USCIB is the United States representative of the International Chamber of Commerce (ICC), which is based in Paris and is the oldest and one of most prestigious arbitral institutions in the world. The ICC's International Court of Arbitration (ICA) maintains national arbitration committees throughout the world. The USCIB's Arbitration Committee is the national arbitration committee for the ICA in the United States. The USCIB Arbitration Committee is divided into regions, of which Florida is the newest. Due to Florida's growing importance in the international arbitration world, particularly as it relates to arbitrations dealing with Latin America, the USCIB decided to make Florida its own region, with Miami as its seat. The Florida Arbitration Sub-Committee spearheads the ICC's efforts in Florida as it relates to educating corporations and lawyers based in Florida as to the benefits of international arbitration as a method of dispute resolution in general.
"The decision of the ICDR and the ICC to hold their annual conferences relating to Latin America in Miami is yet another indication that Miami is a leading venue for international arbitration in the region."
As further evidence of Miami's ascendance as a leading venue for international arbitration proceedings, another of the foremost arbitral institutions in the world, the American Arbitration Association (AAA) and its International Centre for Dispute Resolution (ICDR), have located their regional offices for the southeastern United States in Miami. Strategically positioned to host international arbitration and mediation disputes emanating from throughout Latin American, the Caribbean, and elsewhere, the AAA's state-of-the-art hearing center in Miami offers excellent facilities equipped with the latest technology (Wi-Fi, video conferencing and a fully-equipped office center), including hearing rooms and breakout rooms, to conduct international arbitration and mediation proceedings, all while overlooking breathtaking views of the beautiful Miami skyline and Biscayne Bay. To view photographs of the hearing center and obtain further information concerning the rental of these facilities, visit the AAA's website at http://www.adr.org. In addition to the AAA's facilities, Miami has a great number of fine hotels and office buildings that can also be used to conduct international arbitration hearings.
Miami is also fortunate to serve as the host city for the most important annual conferences focused on international arbitration in Latin America. At the time these conferences began in 2003, there were no other annual international arbitration conferences in the world sponsored by major arbitral institutions that dealt primarily with Latin America. Since 2003, however, the ICDR and the ICC have held well-attended annual conferences in Miami that deal primarily with developments in Latin America relating to international arbitration. Each of these conferences attract hundreds of international arbitration practitioners from Latin America, Europe, and elsewhere, and provide a unique and valuable forum for the exchange of ideas related to international arbitration in Latin America and throughout the world. The decision of the ICDR and the ICC to hold their annual conferences relating to Latin America in Miami is yet another indication that Miami has emerged as a world-class center for international arbitration in the region.
Vast Multilingual Professional Workforce
"Miami's cultural diversity has led to its emergence as a world-class international city."
Because of its vast multilingual professional workforce, Miami has the human capital necessary to support international arbitration proceedings. Beginning with the immigration of large numbers of Cuban professionals in the early 1960s, Miami has benefited from the immigration of many professionals from throughout Latin America and Europe. As a result, Miami has become a truly world-class international city where Latin Americans and Europeans feel welcome and comfortable due to Miami's cultural diversity.
Miami's professional workforce includes countless bilingual and multilingual attorneys and other professionals who serve as experts in accounting, finance, engineering, construction, and many other disciplines. Because of the growth of international arbitration in Miami and the many local conferences and academic programs that focus on this area, these professionals have acquired extensive knowledge and experience relating to international arbitration.
Miami also has many skilled bilingual professionals that provide support for international arbitration proceedings, such as certified interpreters and translators. Another important component of the local workforce is the large number of bilingual and certified court reporters available to transcribe arbitration proceedings verbatim and provide real-time or daily transcripts to attorneys and arbitrators participating in these proceedings. Arbitration practitioners conducting hearings in other jurisdictions which do not have such an advanced and regulated court reporting system are faced with the unenviable choice of either paying all of the expenses associated with transporting a court reporter to a foreign jurisdiction, or using a less reliable and accessible means of attempting to transcribe the proceedings.
More Convenient and Affordable than Traditional Arbitration Centers
In addition to its highly developed infrastructure designed to support and promote international arbitration, Miami is also a more convenient and affordable location to host proceedings relating to disputes originating in the Americas and elsewhere than traditional arbitration centers like London, Paris, New York, or Geneva. Due to its geographic location, Miami is much closer to cities throughout Latin America than any of the traditional arbitration centers. As a result, Miami has many more direct flights to cities in Latin America than any of the other recognized arbitration centers, and the corresponding travel time and costs associated with air travel are far shorter and less expensive than those associated with traveling to any of these other centers.
Miami also has a competitive advantage over these other locations because the hourly rates charged by professionals involved in the arbitral process, such as attorneys and other professionals that serve as consultants, are substantially lower in Miami than in any of these other venues. The Wall Street Journal recently published an article indicating that some top attorneys in large New York firms had raised their hourly rate to $1,000, and that top attorneys in London bill at rates that, when converted, come close to $1,500 an hour. Rates for experienced counsel in Paris or Geneva are not far below the rates charged by attorneys in New York and London. In contrast, legal and other professional fees in Miami are far lower than the rates charged in any of these other locations.
"Miami... a more convenient and affordable location to host proceedings relating to
disputes originating in the Americas."
Miami also compares favorably to any of these other cities with respect to the cost of hotel rooms and the rental of other facilities necessary to conduct arbitration proceedings, such as conference rooms and temporary office space. The disparity in value of the Euro and the British Pound as compared to the U.S. Dollar also helps to make Miami a more affordable venue.
MIAS Focus Reports
Miami: A Tropical Paradise Full of Vibrant Life
Whether taking time to unwind after a hard day's work, or enjoying a couple of days of leisure before or after the proceedings, Miami is a fun and vibrant city full of exciting things to do. No other city in the world offers the mix of tropical sophistication, cultural excitement, and world-class amenities that Miami does.
Visitors from around the world come here to enjoy what they cannot find anywhere else: a multicultural city with sandy beaches, non-stop nightlife, fabulous restaurants, great shopping, and one of the hottest arts and cultural scenes around.
Accommodations in Miami can suit a variety of needs. Visitors can choose from oceanfront resorts with family-friendly activities, luxury hotels with fine dining and personalized service, business hotels, historic lodging in the Art Deco District, or boutique hotels with individualized decor and whimsical furnishings.
Art galleries and major annual art shows, including the annual Art Basel Miami Beach, showcase the city's rich diversity of talent, and the city's reputation as an international arts mecca continues to grow.
Miami's performing arts include one of the nation's oldest opera companies, a world-renowned ballet company, symphony concerts, contemporary dance, theater, and much more. Throughout the year, numerous film, music, dance, heritage and culinary festivals spice things up, Miami style.
Miami's beautiful natural environment is one of its biggest assets and a real attraction for visitors. Natural attractions include the mangrove islands and azure waters of Biscayne Bay, lush botanical gardens, and the exotic flora and fauna of Everglades National Park. Parks throughout the city offer plenty of green space in addition to beautiful beaches, public golf courses, tennis courts and swimming pools.
And when it comes to dining, adventurous palates will not be disappointed. Miami has developed its own unique cuisine, called "New World" or "Floribbean," which uses flavors and spices from nearby Caribbean and Latin American countries. The city also offers an array of international restaurants that feature delicious gourmet dishes using the freshest local ingredients.
Miami has one of the nation's busiest international airports and is also known as the "Cruise Capital of the World." Greater Miami and the Beaches is a multifaceted destination that offers something for everyone. Sports fans, history buffs, art lovers, night owls, beach-goers, fashionistas, and the young and young-at-heart will all find something to love about this city. A visit here is a journey through many worlds rolled up into one fascinating tropical location. Nowhere else on earth will you find our combination of cosmopolitan Miami meeting facilities and tropical splendor.