Young ICCA Skills Training Workshop: Arbitration Training
Post Event Report
Young ICCA and the University of Miami International Arbitration Institute held an arbitration skills training workshop at the Club de Industriales in Mexico City on October 15, 2015. Approximately forty young arbitration practitioners attended, with very diverse backgrounds and levels of experience, including junior and mid-level law firm practitioners, students and LLM graduates, as well as representatives from the government and in-house counsel.
The title of the workshop was “Enforcement of Foreign Arbitral Awards under the New York Convention: A Practical Guide,” and the distinguished faculty included Jan Paulsson (Three Crowns), Marike Paulsson (Director, International Arbitration Institute), Francisco González de Cossío (Principal, González de Cossío Abogados, S.C), and Edgardo Muñoz (Professor, Universidad Panamericana, Guadalajara). The panel was moderated by Young ICCA Co-Chair Kate Brown de Vejar. The event was made possible with the generous support of González de Cossío Abogados, S.C.
The workshop focused on how to enforce a foreign award under the New York Convention, in Mexico. First, Marike provided a terrific, interactive overview of how enforcement under the New York Convention is designed to work, concentrating on Articles II through V. The group engaged in some role play, as clients and counsel in a theoretical case, exploring how to interpret and employ these provisions in practice.
Marike explained that the focus of lawyers seeking to enforce an arbitral award should be on Article IV, and on the formalities that it entails, such as the authentication or certification of the award and arbitration agreement. Whereas lawyers who intend to resist the enforcement of the award should rely on the Article V, and invoke one of the grounds of refusal to convince the judge not to enforce the award.
The meaning of “duly authenticated original award or a duly certified copy thereof” was discussed, as well as the fact that the posture of courts across the globe on the matter is far from uniform. The group discussed whether, in Mexico, it was necessary to certify the award before a fedatario público, but the consensus was that this procedure was both unnecessary and likely to generate other practical problems. The conclusion of the group was that, while using this mechanism was a possibility, it went beyond what was required by the New York Convention and domestic law, and that it would be unhelpful if a practice of taking these additional measures was to develop.
Francisco González de Cossío and Edgardo Munoz then led a rather amusing - if sometimes concerning – discussion of what Mexican judges have required as a matter of practice. The lesson at the end of the day was not to underestimate how long it will take to translate the required documents and get them signed, stamped, sealed and apostilled by all the relevant authorities, both domestic and foreign. And while it seems that “the more stamps the better,” submitting documentation beyond that specifically contemplated in Article IV might prove to be a strategic error, giving a judge more information on the basis of which he or she might find a reason not to enforce.
A few other issues were debated, such as whether to go to a local or federal court to seek the enforcement of an award, and whether to go to the courts in the jurisdiction where the assets are located, or where the party against whom enforcement is sought is domiciled. The diversity of experiences in the room made for a really interesting exchange of practical experiences and advice.
The discussion then became even more local when we discussed how an Amparo (a Mexican constitutional challenge) fits into this process. Until recently, an amparo proceeding could not be initiated in Mexico against an arbitral award, however, the dynamics changed when the law was amended. The interplay between an amparo and the enforcement of an arbitral award was debated, and specifically whether the right proceeding to initiate was an indirect or direct Amparo. It became clear from the experiences of the attendees that the matter is not yet settled.
Finally, we looked at the public policy exception under Article V.2(b) and were treated to a thought-provoking analysis by Jan Paulsson of what are (or should be) the limits of a court’s examination of issues of public policy in relation to a foreign award, as well as a discussion of the terminology which has grown up around the public policy exception under Article V.2(b) (“public policy”, “domestic public policy”, “international public policy”, “truly international public policy”), and what it all means. Ultimately, the conclusion was that the threshold to invoke the exception under Article V.2(b) should be a high one. While there will always be circumstances where the enforcement of an award will be refused due to an overriding norm of public policy in the forum, the New York Convention should be regarded as a deal among nations, the predominant purpose of which is to facilitate the recognition and enforcement of awards.
Francisco González de Cossío ended with a comment regarding the meaning of public order in Mexico, and referred to a recent decision of the Supreme Court of Mexico that stated that public order violations were those that contravened the fundamental interests of society. The decision is the most successful attempt in Mexico to-date clarify the concept of public order for this purpose.
Jan Paulsson also provided the attendees with a brief overview of how the international arbitration community has evolved throughout his career, and mentioned that while cultural diversity was one of the biggest issues thirty years ago, looking around the room, he was encouraged to see such a wonderfully varied group of enthusiastic young practitioners – an encouraging sign for the future of international arbitration.
The discussion was followed by a lovely cocktail reception.