December 19, 2016

International Arbitration 1/3LY, Issue 8 - Latin America

We are delighted to present the eighth issue of the International Arbitration 1/3LY exploring Asian investment into Latin America. Rich in mineral and hydrocarbon resources but recently afflicted by a collapse in commodity prices, corruption, and political scandals, Latin America is slowly starting to show signs of recovery. New regimes have expressed a commitment to structural and policy changes designed to stamp out corruption and entice foreign investors.

Thirdly Edition 8

At the same time, China, India and the ASEAN region are all looking outward for cross-border trade and investment opportunities. In this issue, we interview Michael Every, Head of Financial Markets Research, Asia-Pacific at Rabobank, who describes China’s desire to trade and investment in Latin American economies, particularly in infrastructure, in a quest to deal with its own slowing economy and dwindling exports. Last year China and Brazil agreed a series of trade and investment deals worth billions, including a USD 10 billion rail project.

These new commercial and contractual relationships don’t always follow classic structures. We hear repeatedly from lawyers across our offices that parties to such agreements are finding they have to work much harder to protect their investments, particularly since Chinese entities and others are demonstrating increasing interest in joint ventures and active ownership of assets.

In a special report, Shanghai based Clyde & Co partner Richard Bell and Ruth Stackpool-Moore, Head of Harbour Litigation Funding and former managing counsel at the Hong Kong International Arbitration Centre, advise on Chinese commercial attitudes to foreign direct investment and the resolution of disputes. We learn that Chinese entities are becoming more receptive to arbitration and are beginning to use the system more as claimants.

This goes some way to explaining the upswing in international arbitration which we are witnessing across Latin America. We have recently expanded our global arbitration offering with a newly launched Miami office to further push our Latin American services. Arbitral institutions are also moving in to service this growing demand – the ICDR opened a Miami office directed at South American and Caribbean countries in 2015; and the ICC has indicated that it will soon open a facility in Brazil. In a directory towards the back of this issue, we provide a breakdown of arbitral institutions in different countries across Latin America. Elsewhere in the issue we outline our key advice for investing in the region.

On behalf of Clyde & Co, I would like to express my gratitude to Michael Every, Ruth Stackpool-Moore and Andrew Fennell for sharing their expert opinions. I also wish to thank my colleagues from the firm’s global arbitration group for their articles and analysis.

Ricardo Lewandowski, Partner, Clyde & Co

In this issue

  Asia can no longer expect to export its way to growth

  Special report: Laws of attraction

  Investing in Latin America

  Chinese Whispers

  Drafting an effective arbitration clause: Key considerations

  A background to arbitration in Latin America

  A road worth taking: Brazil’s tortuous yet encouraing path towards the implementation of the New York convention