CBAr-ITA-CCBC Joint Conference on International Arbitration

Overview

Held in a different Latin American capital city each year since 2005, the Americas Workshop is an important forum for international arbitration practitioners in or interested in Latin America. Customarily presented with the leading arbitral institution in the region, the Americas Workshop includes mock arbitration scenes written and performed by international experts to demonstrate key issues of practice in Latin America, expert commentaries and panels, the Americas Forum for informal off-the-record discussion of current issues, a young arbitrators Roundtable and a variety of social activities.

This year, the Americas Workshop will be presented for the second time in connection with the Annual Congress of the Brazilian Arbitration Committee (CBAr), the leading international arbitration association in Brazil, supported by the Arbitration and Mediation Center of the Canada-Brazil Chamber of Commerce (CAM-CCBC). The entire Joint Conference will be presented with simultaneous translation in English and Portuguese. 

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Tuition

Faculty

Workshop Co-Chairs

José Astigarraga
Chair, Americas Initiative, Institute for Transnational Arbitration
Astigarraga Davis
Miami, Florida

Tai-Heng Cheng
Quinn Emanuel Urquhart & Sullivan, LLP
New York Law School
New York, New York

David M. Orta
Quinn Emanuel Urquhart & Sullivan, LLP
Washington, D.C.

Jennifer M. Smith
Baker Botts L.L.P.
Houston, Texas

Players & Commentators

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Thursday, September 19

7:30 am

Registration

8:30 am

Welcome Remarks

• Lauro Gama, Jr., President, CBAr
• José I. Astigarraga, Chair, ITA Americas Initiative
• Frederico J. Straube, President, CAM-CCBC 

ITA Americas Workshop: Post-Hearing Submissions, Deliberations and Enforcement

8:50 am

Introduction to Act I

Jennifer M. Smith, Conference Co-Chair 

Act I - Post-Hearing Issues

An acrimonious merits hearing in Tor in June 2011 has concluded and the parties are preparing to file written closing submissions. The Tribunal ordered simultaneous closing submissions with no right of reply and, in addition to page limits, specified that the parties were not to refer to any new arguments or new evidence. The Tribunal did permit each side to submit one additional witness statement, the scope of which was limited to late-discovered documents. The order further provided that the parties were to file written costs submissions simultaneously a week after their closing submissions.

9:00 am

Act I, Scene I - Closing and Costs Submissions

The parties separately discuss the form and content of their closing and costs submissions. Drill-BD has discovered new evidence and wishes to introduce it. TorGas is concerned with the post-hearing behavior of one of its key witnesses and considers how to minimize the damage. With regard to the costs submissions, Drill-BD’s in-house counsel grapples with some troublesome time sheet entries from its outside arbitration counsel. For its part, TorGas has paid all the costs to date in the arbitration, is upset at the length of the proceedings, and is concerned as to its chances of recovering these costs from Drill-BD.

Stage Right – Drill-BD Discussions

• Drill-BD Executive - Miguel López Forastier
• Arbitration Counsel for Drill-BD - Fernando Eduardo Serec
• In-House Counsel for Drill-BD - Richard D. Deutsch

Stage Left – TorGas Discussions

• TorGas Executive - Lauro Gama, Jr.
• Arbitration Counsel for TorGas - Dietmar W. Prager
• In-House Counsel for TorGas - Kathleen Paisley

9:30 am

Act I, Scene II - Reaching a Deal or Waiting For the Award, Late Settlement Issues

After Drill-BD submitted its new evidence, without first seeking leave of the Tribunal, it learned that the new evidence might have been fabricated. Drill-BD is trying to minimize the harm to its reputation. Drill-BD has reached out to TorGas to see if a deal can be reached to resolve the arbitration and move on. The parties independently discuss different aspects of possible settlement negotiations and the impact on the timing of the award.

Stage Left – TorGas Discussions

• TorGas Executive - Lauro Gama, Jr.
• Arbitration Counsel for TorGas - Dietmar W. Prager
• In-House Counsel for TorGas - Kathleen Paisley

Stage Right – Drill-BD Discussions

• Drill-BD Executive - Miguel López Forastier
• Arbitration Counsel for Drill-BD - Fernando Eduardo Serec
• In-House Counsel for Drill-BD - Richard D. Deutsch

9:45 am

Panel Discussion: Navigating Tricky Evidentiary Issues while Maintaining Party Equality

Moderator - Ms. Smith 

10:05 am

Moderated Audience Q&A

10:20 am

Break

10:40 am

Introduction to Act II

David M. Orta, Conference Co-Chair 

Act II - Deliberation: The Ugly, The Bad and The Good

The parties have filed their closing and costs submissions. The Tribunal meets to discuss the case and render an award. The Tribunal must decide three issues:

Preliminary issue: Drill-BD has filed new evidence with its closing submission that it considers crucial to the outcome of the case. Three days before the Tribunal meets to deliberate, TorGas objected to the new evidence and requested that the Tribunal strike it from the record. TorGas reserved its rights to challenge the award if its request was not granted.

Issue on the merits: The Tribunal must decide whether TorGas or Drill-BD should be held liable for the delays in commencing drilling. The Tribunal discusses the effect of Clause 7.2 of the Turnkey Contract that provides: “Drill-BD shall meet the milestones set out in Annexe E to this Agreement. A party can only be held liable for delays which are within the parties’ reasonable control. Parties shall make their best efforts to mitigate the effects of delays and enter into good faith discussions.”

Issue on costs: After ruling on the merits, the Tribunal must decide on costs. The discussions focus on how costs should be allocated and whether they are reasonable. The Tribunal also discusses whether management costs are recoverable.

10:45 am

Act II, Scene I - The Ugly

One of the arbitrators informs the other members of the Tribunal that he and his family will face serious harm if he does not render an award in favor of the party that has appointed him. His behaviour during deliberations is erratic and he leaves the room frequently before key decisions are to be made. The remaining two arbitrators address how to handle the situation.

• Arbitral Tribunal – Chair - Gilberto Giusti
  – Drill-BD Appointee - Julie Bédard
  – Tor-Gas Appointee - Luis M. Martinez

10:55 am

Act II, Scene II - The Bad

During the deliberation, one of the arbitrators is obviously biased: he will discuss all issues at stake for the sake of it and “bargains” his vote. At the end of the process, when all points have been discussed, the biased arbitrator suddenly decides that he will not sign the award and that he will render a dissenting opinion.

• Arbitral Tribunal – Chair - Oliver J. Armas
  – Drill-BD Appointee - Flavia Bittar Neves
  – Tor-Gas Appointee - Marcelo Ferro

11:05 am

Act II, Scene III - The Good

The Tribunal discusses the three issues described above. The aim of this scene is to show how deliberation should normally unfold.

• Arbitral Tribunal – Chair - Dominique Brown-Berset
  – Drill-BD Appointee - Hermes Marcelo Huck
  – Tor-Gas Appointee - Manuel Conthe

11:25 am

Panel Discussion: Is Arbitration like Great Restaurants: Better Not See What Happens in the Kitchen?

Moderator - Mr. Orta 

11:45 am

Moderated Audience Q&A

12:05 pm

Hosted Luncheon

Prof. Carlos Alberto Carmona
Faculty of Law, University of São Paulo
Marques Rosado Toledo Cesar & Carmona Advogados
São Paulo, Brazil 

1:45 pm

Introduction to Act III

Tai-Heng Cheng, Conference Co-Chair 

Act III - Reconsideration - Challenge - Enforcement

At long last, the Tribunal issues its award – a divided 2-1 decision favoring TorGas.

The majority award is signed by the Chairman of the Tribunal and by TorGas’s nominee. In its opinion, the majority concludes that under the terms of the Turnkey contract, Drill-BD was strictly responsible for meeting the contractual milestones necessary to prepare the site for drilling, and that its failure to meet those milestones on schedule gave rise to liability in the amount of $7 million. Because TorGas is the prevailing party, the majority also concludes that TorGas is entitled to its “reasonable costs and attorneys fees,” which it calculates at 75% of TorGas’ requested amount.

The arbitrator appointed by Drill-BD has filed a separate and withering dissenting opinion, accusing the majority of reaching an overly technical decision and committing various legal and deliberative errors. The dissent argues that because TorGas’s delays in obtaining certain necessary drilling permits prevented Drill-BD from meeting the contractual milestones, TorGas should not be entitled to any delay damages, and each party should bear their own costs.

1:50 pm

Act III, Scene I - Debriefing

The LCIA has provided the award to both sides, and the executive of each party meets with in-house and arbitration counsel to discuss their very differing reactions to the award and to plot next steps. In particular, the parties analyze the procedural mechanisms at their disposal with regard to promoting or resisting confirmation and enforcement.

Stage Left – TorGas Discussions

• TorGas Executive - Eleonora Coelho
• Arbitration Counsel for TorGas - Ramiro Guevara
• General Counsel for TorGas - Mark C. Morril

Stage Right – Drill-BD Discussions

• Drill-BD Executive - Cheng-Yee Khong
• Arbitration Counsel for Drill-BD - Luciano Benetti Timm
• General Counsel for Drill-BD - João Bosco Lee

2:15 pm

Act III, Scene II - Local Enforcement Challenges

A month has passed and just as TorGas’ lawyers are putting the finishing touches on a request for confirmation, TorGas has suddenly found itself served with notice of a petition that Drill-BD’s lawyers have filed in Torvian state court seeking to vacate the award. To their great surprise, TorGas notes that Drill-BD has attached an unsealed copy of the arbitral award and dissent to its request for vacatur, and TorGas soon learns that the dissent’s scathing and colorful attack on Torvia’s investor climate is already getting top billing on Longhorn’s leading evening financial news program. Each side’s executive convenes a meeting with general counsel, local Torvian counsel and arbitration counsel to discuss these developments and to plan next steps.

Stage Left – TorGas Discussions

• TorGas Executive Speaker - Eleonora Coelho
• Arbitration Counsel for TorGas - Ramiro Guevara
• General Counsel for TorGas - Mark C. Morril
• Local Counsel for TorGas - Renato Stephan Grion

Stage Right – Drill-BD Discussions

• Drill-BD Executive Speaker - Cheng-Yee Khong
• Arbitration Counsel for Drill-BD - Luciano Benetti Timm
• General Counsel for Drill-BD - João Bosco Lee
• Local Counsel for Drill-BD - Carlos S. Forbes

2:35 pm

Panel Discussion: Is the Award Just the Beginning? Strategizing for Post-Arbitral Proceedings

Moderator - Mr. Cheng 

2:55 pm

Moderated Audience Q&A

3:15 pm

Coffee Break

CBAr XII Congress: Arbitration and Ethics

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Thursday, September 19

4:30 pm

Opening Ceremony

5:00 pm

Keynote Speech - The Notion of Ethics in Arbitration

Luiz Olavo Baptista 

6:00 pm

Adjourn

Friday, September 20

9:00 am

Panel I - The Regulation of Ethics in Arbitration

1. Ethics: natural standard of arbitration? - Christophe Seraglini
2. The private or public regulation of ethics - Tércio S. Ferraz Jr.
3. Should the arbitrators control ethics? - Roque Caivano

10:40 am

Coffee Break

11:00 am

Panel II - Ethics and the Arbitration Actors

Moderator - Ana Paula Montans 

1. The ethics of the arbitrators - Eduardo Grebler
2. The ethics of the parties and their lawyers - Julie Bedard
3. The ethics of the arbitration institutions - Gilberto Giusti

12:40 pm

Hosted Luncheon

2:10 pm

Panel III - Ethics and Arbitration Instance

Moderator - Octavio Fragatta 

1. Ethics and fundamental principles of the arbitration proceedings - Edna Sussman
2. Ethics and applicable law to the merits of the dispute - Luca Radicati di Brozolo
3. Arbitration proceedings and ancillary proceedings: ethics and abuse of rights - Daniel Levy

3:50 pm

Coffee Break

4:10 pm

Panel IV - Control of Ethics: Violation and Penalty

Moderator - Luis Felipe Salomão 

1. Should arbitrator punish the violation of ethics? - Eduardo Silva Romero
2. Control of Ethics by State Courts3. Ethics and Public Order Violation - Ministro Sidnei Benetti
3. Ethics and violation of Public Order - Fabiano Robalinho Cavalcanti
   

5:50 pm

Synthesis Report

6:10 pm

Adjourn 

2013 Americas Forum (by invitation)

Saturday, September 21

8:00 am

Registration and Continental Breakfast

8:30 am

Session 1 -- Is there a need for a new arbitration act in Brazil?

Co-Moderators:

• Eleonora Coelho, Castro, Barros, Sobral, Gomes Advogados, São Paulo
• Giovanni Ettore Nanni, TozziniFreire Advogados, São Paulo

9:20 am

Break

9:40 am

Session 2 -- Open Discussion

Co-Moderators:

• André de Albuquerque Cavalcanti Abbud, Barbosa, Müssnich & Aragão Advogados, São Paulo
• Gilberto Giusti, Pinheiro Neto Advogados, São Paulo

10:30 am

Break

6th Americas Roundtable on the Fundamentals of International Arbitration

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Saturday, September 21

10:30 am

Registration

11:00 am

Welcome Remarks

• Valeria Galindez, Vice Chair, ITA Young Arbitrators Initiative
• Rafael Alves, CBAr Representative 

11:15 am

Young Lawyers Roundtable

Co-Moderators:

• Dietmar W. Prager, Debevoise & Plimpton, New York
• João Bosco Lee, Lee, Taube e Gabardo, Curitiba

Panelists:

• Adrián Magallanes, Von Wobeser y Sierra, México, D.F.
• Silvia Marchili, King & Spalding, Houston
• Rafael E. Llano Oddone, White & Case, S.C., Mexico
• Eduardo Pecoraro, Ferro, Castro Neves, Daltro & Gomide, São Paulo
• Carlo de Lima Verona, Veirano Advogados, São Paulo
• Debora Visconte, José Carlos de Magalhães Advogados, São Paulo

12:45 pm

Closing Remarks

1:00 pm

Adjourn

Sponsors

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Overnight Accommodations

Official Hotel

Gran Estanplaza
Rua Arizona, 1517, São Paulo – Brooklin

• Single Room: R$ 551,80
• Double Room: R$ 595,30 

Event Hotel

Sheraton São Paulo WTC
Av. das Nações Unidas, 12559
Itaim Bibi
São Paulo, 04578-903, Brazil

• Single Room: R$ 696,25
• Double Room: R$ 809,00
• Single Suite: R$ 856,00
• Double Superior Suite: R$ 961,25

* All TAX are included. With breakfast. Prices are available until August 9, 2013.

Booking Instructions

Contact: CCTUR Turismo, (55) (51) 3362-2323, viagens@cemcerimonia.com.br

Cancellation Policy

• 15 days before check in - 0 % refundable
• 30 days before check in - 50 % refundable
• 45 days before check in - 100% refundable

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About São Paulo

Beautiful, rich, intellectual, democratic, vivid, sportive, cultural, sentimental, romantic, modern, serious, outgoing, professional. After all, what defines São Paulo? There is no adjective whatsoever to accurately represent one of the megacities of the world.

Conceived by a multiplicity of nationalities, cultures, beliefs, and standards, this great metropolis is truly cosmopolitan by vocation and adoption. It's Italian, German, Jewish, Portuguese, Japanese, Chinese, French, African, Arabic, Spanish, Latin, Brazilian and paulistana. Those and many other features are there in the buildings’ architecture, the streets, the refined taste of its culinary delights and in consuetudes and gestures of people who cannot rest, writing the city's history daily and valiantly.

Useful websites:

• www.destinosp.com.br
• www.cidadedesaopaulo.com/sp/
• www.visitesaopaulo.com
• www.fiquemaisumdia.com.br
• www.vejasp.abril.com.br

Organizing Committee

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Comitê Brasileiro de Arbitragem - CBAr

• President: Lauro Gama Jr.
• Vice-Presidents: André de Albuquerque Cavalcanti Abbud, Flávia Bittar Neves, Giovanni Ettore Nanni and Luciano Timm
• Treasurer: Eduardo Parente
• Directors: Adriana Pucci, Clávio Valença and Rafael Francisco Alves
• Ex - Presidents: Adriana Braghetta, Eduardo Damião Gonçalves and João Bosco Lee
• Intern: Lenara Duarte

Institute for Transnational Arbitration (ITA)

Centro de Arbitragem e Mediação da Câmara de Comércio Brasil-Canadá - CAM-CCBC

• Representative of CCBC: Carlos S. Forbes

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