Young ICCA Skills Training Workshop: Drafting Awards
Post Event Report
Young ICCA recently held a half-day training workshop at Porto Alegre, at the Carvalho, Machado e Timm Advogados offices. The Workshop was divided in 4 sessions, each one exploring different aspects of the subject: “Drafting Arbitral Awards”.
The attendees consisted in young arbitration practitioners and law students. They had the pleasure to hear from exceptional practitioners from Brazil and abroad, which exposed and debated the following topics.
The opening speech was made by Mark Luz (Senior Counsel in the Trade Law Bureau of Global Affairs – Canada). Mr. Luz talked about the differences between drafting international commercial arbitral awards and drafting investment treaty arbitral awards. At first, he pointed out the following particularities regarding investment treaty arbitrations: i) The arbitrators are different from those in commercial arbitrations. One is more likely to find Professors siting as arbitrators in investment treaty disputes, as practitioners are more usual on international commercial arbitrations; ii) On investment arbitrations, the law governing the contract is Public International Law. For this reason, investment treaty arbitrators tend to have an expertise on this subject; iii) Since great majority of investment treaty arbitral awards are made public, it is possible that they will impact future arbitrations, creating precedents. Mr. Luz concluded his speech by stating that all those aspects contribute to the supposition that drafting awards in investment treaty arbitrations can be very different from drafting awards in international commercial arbitrations.
After the opening speech, the Workshop then proceeded to the first panel: “Form and Content of the Award”. The panel was moderated by Júlio César Ferandes (Associate at Dinamarco, Rossi, Beraldo & Bedaque Advocacia), and the panelists were: Elisa Schmidlin Cruz (Secretary General at ARBITAC) and Guilherme Rizzo Amaral (Partner at Souto, Correa, Cesa, Lummertz & Amaral Advogados). Mrs.Cruz gave an explanation regarding the form of arbitral awards, sharing with the attendees her experience as an arbitral institution secretary general. She first described the usual structure of an arbitral award, subsequently pointing out some curiosities and particularities regarding the drafting of arbitral awards on specific cases. Mr. Amaral, on the other hand, focused on the content of arbitral awards, addressing two topics: i) the issue of arbitrators deciding by equity through the “manifest disregard of the law”; and ii) the issue of whether arbitrators should or should not follow precedents from Brazilian courts.
The following session of the Workshop was a Keynote Speech by Prof. Ruy Rosado de Aguiar (Former Minister of the Brazilian Superior Court of Justice – STJ; Partner at Ruy Rosado de Aguiar Advogados Associados). The subject of Prof. Aguiar’s speech was: “Taking Recognition and Enforcement of Arbitral Awards Seriously When Drafting Awards”. He gave a true lesson on Public Policy on International Arbitration, explaining the differences between domestic and international Public Policy, as well as the impact that each one of them can have on the drafting of arbitral awards.
Finally, the last panel consisted in a very fruitful discussion, addressing “Controversial Issues Regarding the Drafting of Awards”. The moderator was Bruno Guandalini (Partner at Carvalho, Machado e Timm Advogados) and the panelists were: Luciano Benetti Timm (Partner at Carvalho, Machado e Timm Advogados) and Fernando Marcondes (Partner at L.O. Baptista-SVMFA Advogados). Some of the topics discussed were: i) When deciding incidental matters on an arbitration, is it more efficient to issue Partial Awards or to issue Procedural Orders?; ii) What are the techniques used by arbitrators to optimize the deliberations of the arbitral tribunal, prior to drafting the award?