The Evolving Landscape of Investor-State Dispute Settlement (ISDS) in Portugal

Over the years, Portugal has witnessed significant developments in its approach to Investor-State Dispute Settlement (ISDS), reflecting broader global trends and policy shifts. This evolving landscape is crucial to understand how the country navigates the delicate balance between attracting foreign investment and safeguarding its regulatory autonomy. Here, we delve into a few key aspects of this evolution, exploring recent developments, ongoing challenges, and the implications for both investors and the Portuguese government.

 

1. Termination of BITs and the European Union’s influence

One of the most notable shifts in Portugal’s ISDS landscape has been the termination of Bilateral Investment Treaties (BITs) between the European Union (EU) Member States – this is in line with the EU’s broader policy position to reform ISDS. As of July 2022, Portugal ratified the termination of such BITs, emphasizing a unified EU approach to investment protection. Such decision reflects a move towards a more integrated and standardized system, where intra-EU investment disputes are resolved within the EU framework.

 

2. European Union’s push for Investment Court System

Portugal’s alignment with the EU’s broader strategy can be seen in its potential support for the Investment Court System (ICS). The ICS represents a departure from traditional ISDS mechanisms, aiming to establish a permanent international investment court with appointed judges and an appeal procedure. By endorsing this approach, Portugal will likely be able to signal its commitment to a more transparent, accountable, and institutionalized system for resolving investment disputes. This new paradigm is consistent with the EU’s efforts to address criticisms of traditional ISDS mechanisms, such as a lack of transparency and potential conflicts of interest.

 

3. Flexibility in Dispute Resolution Mechanisms

Portuguese investment treaties still demonstrate a certain degree of flexibility in dispute resolution mechanisms. Including options such as local courts, ICSID Arbitration, and ad hoc arbitration under UNCITRAL rules offers investors with choices. However, some treaties limit recourse to local remedies, emphasizing a balance between encouraging diplomatic resolution through negotiation and providing international arbitration channels available.

 

4. Ongoing challenges and concerns

The termination of BITs and the shift towards the ICS model are not without challenges. Critics argue that the ICS might introduce complexities and delays into the dispute resolution process, potentially deterring investments. Additionally, the reliance on local courts in some treaties raises concerns about impartiality and the effectiveness of domestic judicial systems. Finding the right balance between investor protection and preserving regulatory autonomy remains a key challenge for Portugal.

 

5. Implications for investors and the Portuguese government

The evolving ISDS landscape in Portugal has significant implications for both investors and the government. Investors benefit from a clearer and more standardized framework for dispute resolution, promoting confidence and predictability. At the same time, the Portuguese government gains greater control over its regulatory processes thereby decreasing the exposure to external arbitration. The emphasis on diplomatic negotiations as a precursor to arbitration indicates a commitment to settling disputes amicably whenever possible.

 

6. Future directions and international cooperation

Looking ahead, the Portuguese approach to ISDS is expected to further develop in response to global trends and challenges and Portugal could play a key role in shaping EU debates on investment protection. International cooperation to improve the ICS model and address concerns is indeed vital and, in this sense, Portuguese diplomatic and legal experience could contribute to the ongoing dialogue on the creation of a sound and fair international mechanism for resolving investment disputes.

All in all, the ISDS landscape in Portugal is changing, mirroring the dynamic nature of international investment law. The termination of BITs, the alignment with the EU’s ICS model and the focus on the flexibility of dispute resolution mechanisms highlight Portugal’s willingness to adopt a balanced and adaptable approach. Implications for investors and government underline the importance of navigating this evolving landscape with caution and foresight.

 

To learn more, please read the Portuguese chapter of the GAR Investment Treaty Arbitration, submitted by the Portuguese team of Victoria Associates, available here.

Victoria Associates has successfully represented clients in disputes related to international investment arbitration and welcomes any question that may arise in this context (info@victoria.associates).

Costs of Arbitration in Portugal

Arbitration Costs in Portugal

When selecting a dispute resolution method, the expense of arbitration is a primary consideration. As disputes become unavoidable, parties often first wonder, “What will the financial implications be?” Sometimes, by this stage, it might feel late for such considerations.

Surprisingly, many arbitration agreements don’t directly address cost concerns. Typically, detailed discussions on this topic emerge only in prominent cases during dispute resolution clause negotiations. One reason might be that during the initial agreement, parties either don’t anticipate conflicts or underestimate the financial ramifications of their chosen method. In some instances, due to time constraints (a situation often referred to as “midnight clauses”), parties might hastily use a standard clause from an arbitration institute, assuming it addresses all potential concerns. However, by the time conflicts manifest, reevaluating such decisions is often not feasible.

This overview generally aligns with the situation in Portugal. Arbitration in Portugal often incurs higher costs than state court litigation.

There’s a belief that for disputes involving sums greater than €3 million, arbitration proves more economical. But this notion isn’t entirely grounded. The Judicial Procedural Costs Regulation grants judges the discretion to forgo final account preparations in cases, implying parties might not face additional costs beyond initial procedural fees. When making such a determination, judges consider the case’s intricacies and the efforts invested. Portugal’s Constitutional Court has clarified that any decision that fails to account for these factors, while still mandating parties to adhere to the full Regulation’s cost schedule, contravenes the national Constitution. Thus, in most cases, judges are inclined to trim the payable amounts.

Furthermore, the prevailing party in a court scenario cannot fully recuperate all costs tied to their claim or defense, especially legal team expenses. These recoverable sums are generally a fraction of the total legal fees. On the contrary, according to Portuguese Arbitration Law and prevalent arbitration institution rules, arbitrators have the liberty to incorporate legal fees into the final award, determining the extent borne by the unsuccessful party.

This flexibility often renders arbitration more enticing compared to court proceedings. However, it’s pivotal to juxtapose this with the initial financial outlay that arbitration participants typically need to cover, often in full, prior to the award.

Lastly, when looking globally, Portugal boasts several competitive advantages in arbitration expenses. One of the advantages is that, while maintaining high-quality legal services, attorney charges are considerably lower than in other leading jurisdictions. Another advantage in this respect is that arbitral institutions usually entail reduced costs when compared to other international venues.

Victoria Associates Sponsored the 24th Annual IBA Arbitration Day

Victoria Associates Sponsored the 24th Annual IBA Arbitration Day
Victoria Associates Sponsored the 24th IBA Arbitration Day

Victoria Associates sponsored the 24th Annual IBA Arbitration Day, that took place last 13 and 14 April, in Lisbon.

More than 500 people and a host of excellent speakers gathered in the Lisbon Congress Centre to discuss issues related to the topic “International arbitration in a divided world: a challenge to the system’s legitimacy”.

The program included panels that discussed:

• The impact of third party funding on investment arbitration
• The implications of sanctions for international arbitration
• Duty of disclosure: self-regulation vs statutory regulation
• Dealing with corruption in international arbitration

The IBA Arbitration Day also included a keynote speech dedicated to the subject “The perils and promise of transparency”.

Check the Program HERE

Victoria Associates sponsored the event, which made us extremely happy and proud, as the photo illustrates (from left to right Ricardo Vigário, Duarte G Henriques, Rita de Carvalho and João Frazão). It speaks loads about the positioning and relevance of Victoria Associates in the arena of international arbitration, as we will explain in a future post.

Please go to our WEBSITE or send us a message (info@victoria.associates) to learn more.

#EmbarkWithUs

Mondaq – International Arbitration Comparative Guide – Portugal

Victoria Associates is pleased to announce that Duarte Henriques and João Frazão wrote the Portuguese report for Mondaq’s International Arbitration Comparative Guide.

The International Arbitration Comparative Guide is edited by Herbert Smith Freehills partner Craig Tevendale and also Vanessa Naish (HSF).

The Guide is a collection of country reports from around 40 jurisdictions, in a Q&A style, and is available online here: https://www.mondaq.com/litigation-mediation–arbitration/1293856/international-arbitration-comparative-guide

The Portuguese Comparative Guide will help you in:

1. Understanding the local context: A country report on Portugal can offer valuable insight into the local context, including the legal system, culture, and business practices. This understanding can help parties involved in international arbitration to navigate the process more effectively.

2. Insight into arbitration procedures: The report can provide insight into the local arbitration procedures used in Portugal. Understanding the legal framework for arbitration in Portugal can help parties involved in international arbitration to better understand the process and to anticipate any potential issues that may arise.

3. Availability of resources: The report can also provide information on the availability of resources. This information can help parties involved in international arbitration to identify and engage the most appropriate resources for their needs.

Overall, reading a country report for Portugal on international arbitration can offer valuable insight into the legal, cultural, and economic context in which international arbitration takes place in the country.

Please feel free to write to us if you have any additional questions: duarte@victoria.associates and joao@victoria.associates .

Duarte G Henriques on the SVAMC Tech List 2023

We are pleased to announce that Duarte G Henriques has rejoined the List of the World’s Leading Technology Neutrals of the Silicon Valley Arbitration and Mediation Center, being the only Portuguese lawyer on the list (check it HERE).

The 2023 List of the World’s Leading Technology Neutrals promotes efficient and effective technology dispute resolution, including the use of arbitration and mediation to resolve business disputes among companies of the tech sector or involving technological matters.

For more information, please visit the SVAMC website HERE.  

Dispute Settlement in Outer Space: an odyssey in the making

I. Outer space and dispute settlement: a glimpse of the last five decades.

Space: the last frontier. Since the launch of the first artificial satellite Sputnik 1, which started the “Space Age” back in 1957, Humanity has been actively present in outer space. At that time, space activities were conducted by a handful of countries, and in practice only by the former USSR and the US, the two belligerent superpowers of the Cold War era. The first discussions on space activities within the United Nations (UN) showed the international community’s main concern to anticipate and therefore prevent a scenario of militarization of outer space, as well as to promote exploration and use of outer space for peaceful purposes only: this is the origin of Space Law. As early as 1961, the UN General Assembly adopted the Resolution 1721 (XVI), 20 December 1961, laying down the first core legal principles applicable to outer space. Such principles were then crystallized in 1967 with the approval and entry into force of the “Outer Space Treaty” (OST), which was followed by four other treaties, among them the 1972 “Liability Convention” (LIAB).

As these treaties were drafted at a time when only a few States possessed space industry and capability, one can understand why the OST established a State liability regime, i.e., in addition to their own activities, States are also responsible and liable for their private entities. The LIAB would further develop the provisions laid down in the OST, defining damage from a collision perspective, whether it is a bodily damage (loss of life and injury) or a material damage. In addition, the LIAB adopted the “Launching State” criterion, the basis of its dual system of liability: (i) objective/absolute liability, for damages caused by space objects on the surface of the Earth or to aircraft in flight; and (ii) subjective/fault liability, i.e., damages being caused elsewhere than on the surface of the Earth to a space object of one launching State or to persons or property on board such a space object by a space object of another launching State. To this end, LIAB holds States liable for damage caused by their space objects and comprises a dispute resolution procedure consisting of diplomatic negotiations followed by the establishment of a Claims Commission. However, this mechanism is only available to States and not to private parties – or rather, any private entity would need to resort to its respective State, which will then diplomatically approach the other State(s) in question, and the latter may not even have anything to do directly with the dispute, in case it concerns another private entity registered in that country – and the award given by the Claims Commission is of a merely recommendatory nature, unless States involved agree otherwise. The LIAB was invoked only one time: in 1978, the Soviet satellite “Cosmos 954” crashed on Canadian territory, and Canada issued a claim against the USSR, but the dispute was eventually resolved through diplomatic channels, with the specific amount paid to Canada being unknown to this day.

Even though the LIAB still remains very relevant today, its legal framework presents many difficulties and has very limited practical use for commercial space entities. In fact, given the accelerated increase of private actors in space, the UN recommends and encourages States to develop their own national space laws, outlining, e.g., the scope of application of activities to be addressed, conditions for authorization and licensing or insurance requirements. Besides, considering the world and present-day challenges, it is not the appropriate legal instrument to address and settle other types of disputes, such as investor-state disputes or any others regarding complex, multi-party, international contracts. 

II. Outer space in the 21st century: many actors, activities, and disputes. A role for arbitration?

Over the course of the last three decades, space has evolved from a status of a vast majority of state-owned space objects and activities to a much broader presence of non-state actors, notably, private commercial space entities, developing a wide range of space applications (e.g., telecommunications, satellite navigation, etc.), thus entering the space industry, in contrast with a previous (almost) exclusive public environment – representing the so-called “New Space”. But along with new actors and opportunities, new obstacles also arise, including legal ones. As outer space is open to more and more private entities, the number of space objects also increases, thus, the congestion of Earth’s orbits (specially, the lower earth orbit) adds substantial risks to space operations which are exposed to a greater danger for collisions, one of the reasons for the growing need for space traffic management tools. Moreover, such growth of space activities has led to an increasing amount of space debris that will most likely cause more accidents. In this context, as space gets more “crowded”, the risk of damages to space objects consequently increases, including those of non-governmental actors.

It goes without saying that if the number of actors in space is gradually rising, it will soon result in more disputes. But disputes are not only those based on collisions, as they may encompass any contractual disputes that may arise, e.g., satellite-related disputes; disputes regarding any components of the space industry, from manufacturing, to launching, and operating; seizure of assets related to space-related contracts; disputes relating to the launch of space objects into space orbits; as well as disputes in regulatory, insurance or even intellectual property rights domains. Consequently, space disputes are (and will be) numerous, diverse, and complex, which may include States, private actors, or both. In the latter cases, international space law does not have a specific dispute resolution mechanism available for private parties.

As highlighted, although such private entities can indeed request the State to trigger the application of the LIAB, the Convention operates via diplomatic channels that certainly presents an uncertain outcome based on a burdensome procedure that is ultimately non-binding and unsuitable for many disputes. This being said, non-state actors lack legal resources provided to States by international law, and domestic litigation addressing cross-border space disputes is also likely to be insufficient in many levels because obstacles such as lengthy decisions on the  jurisdiction of national courts or the applicable law, loss of confidentiality, uncertainty about the recognition and enforcement of judgments in other jurisdictions, as well as possible scenarios on sovereignty immunity if the claim is filled against a State. As many legal scholars point out, space, space activities, and the diversity of space actors mean that space law should not rely solely on a unique dispute resolution mechanism, instead, it should be open to a diversity of legal instruments to address cross-border and highly complex disputes.

In this context, in recent years we have witnessed the emergence of alternative dispute resolution (ADR) in space, with a clear preference for arbitration: in 2011, the Permanent Court of Arbitration adopted its “Permanent Court of Arbitration Optional Rules for Arbitration of Disputes Relating to Outer Space Activities,”; last year, Dubai has established its own specialized “Space Court.” On a broader international scale, it appears as though the role of arbitration for space disputes is not an “alternative” but is by far the default option for resolving disputes. This is not surprising considering that international contracts usually have an arbitration clause, and arbitration truly is the most popular solution chosen by the parties in light of the technical complexity associated with space issues. For example, it is well-known that the European Space Agency has been preferring arbitration in its model contracts for some time. Arbitration is anchored on several principles, including, e.g., that of consent of the parties and the principle of autonomy.

If parties do consent and submit their dispute to arbitration – without prejudice of space accidents between parties not bound by any contractual relationship, and thus lacking an opportunity to agree to submit a possible dispute to arbitration – parties may appoint their respective arbitrators, surely to be chosen based on their expertise and know-how required to handle space matters and understand the characteristics of a specific case. Besides, flexibility and suitability are features in arbitration proceedings, both international and domestic, that escape from the rigidity of the so called “one-size-fits-all” of national courts, and which renders them inappropriate to resolve outer space disputes.

On a final note, it is also known the possibility of investor-state dispute settlement regarding space activities, whose bilateral and multilateral investment treaties around the world contain arbitration clauses that could allow, as the case may be, a private entity (investor) to choose the applicable rules, for example, ICSID Arbitration Rules or the ICC Rules of Arbitration – this is a very interesting but complex topic, worthy of considerations in a future article.

III. Outlooks

The current international framework addressing dispute settlement in outer space, foreseen both the LIAB and the OST, although of greater importance, does not provide favourable mechanisms to facilitate outer space disputes to private entities, particularly because space technologies, applications and activities have grown at a much faster pace than the legal system drafted back in the 1960s and 1970s. ADR proceedings, notably arbitration, both international and domestic, are useful and capable of resolving disputes on a wide variety of space-related issues, and may indeed help space stakeholders, public and private, to overcome legal pitfalls.

Victoria Associates has a unique track record in all sorts of international proceedings with a keen interest and focus on international arbitration, including international commercial and investment disputes, but also advising and representing clients in ADR proceedings in domestic arbitration and litigation before national courts in jurisdictions where we are qualified.

Above all, Victoria Associates’ members understand their clients’ business and motivation, helping them “reaching for the stars”.

João Nuno Frazão

Victoria Associates

joao@victoria.associates

Third-Party Funding: Portuguese and International Experiences and Current Trends

When Third-Party Funding (TPF) is mentioned, surely the first question that (still) arises for most people is: what is it all about? If we translate this expression into “third-party funding of litigation”, perhaps the doubts will be dispelled for the overwhelming majority of people. However, it is inevitable to question right away what TPF really is and how it works.

The business model can be summarised as follows: for a lawsuit or set of lawsuits, there is a third party that will bear all the costs (including the lawyer’s fees and, in the case of arbitration, the arbitrators’ fees) in exchange for a percentage of the amount received by the financed party (usually 30% to 40%) or a multiple of the money invested (typically between three and five times, i.e. for every euro financed, the third party will receive between three and five euros). The specificity of this business model is that there is only an obligation to repay if the client succeeds; if the client loses the case, the funder will not be entitled to recover the amounts that were spent in the case.

This is, broadly speaking, the business model. But, there is an inevitable question that follows: is it “legal”? Is there not a quota litis prohibited by ethical regulation? The answer, categorically, is: no! There is no legal rule that prohibits this business model. Nor does it involve any violation of the ethical duties of the lawyer (in particular the prohibition of quota litis), provided that the lawyer does not allow the relationship with his client and with the cases he handles to become conditioned or submitted to rights and duties that should typically be located only within the agreement between funder and funded party.

By way of example: it may be thought that the funder (because it is the funder who up-fronts the cash to move the case forward), will determine the way the process is conducted and will condition the procedural strategy (including the choice of counsel). This would involve a clear violation of the lawyers’ ethical duties. Admittedly, this type of conditioning may occur, particularly when the funder is not “comfortable” with the legal team, either because they have never worked with them or for any other reason. However, our experience shows otherwise.
In cases where we have worked with third party funding, the funder already knows the team of lawyers well. Often, the funders themselves come to us to understand which cases they can fund, which involves a judgement of trust in the team that is in charge of sponsoring the case. Afterwards, during the case, the funders limit themselves to a monitoring of the case in a “light touch mode”.

Despite the attractiveness that this model involves, there is a catch, because not all the cases are likely to be funded.

Firstly – and one would expect nothing less – the case must have a fair chance of success (better said: the case needs to present a high likelihood of success, typically above 80% of chances of prevailing). It is therefore expected that due diligence of the case and of the entities involved will be conducted to some extent and depth. This immediately raises a concern: information provided to the funder is not covered by professional privilege, which naturally impacts on the confidentiality of the information.

Secondly, not all the amounts involved are attractive to funders. Internationally, and from what we have seen in our practice, it is very difficult to find anyone willing to fund litigation involving sums of less than 10 or 15 million euros. The reason for this threshold is that the entities that, in turn, are behind the third party funders, and the funders themselves, are looking for minimum returns on their investments.

This point means that the phenomenon is not yet very popular in Portugal. It is not that there are not areas of the law where this financing could blossom (for example, companies in insolvency or actions related to intellectual property rights, especially patents). Among us, business initiatives to launch this financial model have already been started but, as we see it, they do not seem to be adjusted to the dimension of the Portuguese landscape. We must keep in mind the scale of our legal market and must direct the focus towards small and medium litigation of SMEs which are the ones that mostly make up the business fabric of our country. Eventually, some more specific and higher value cases may benefit from this funding, but those will be isolated cases.

There are some trends that have been developing, as regards TPF, at the international level, more specifically in international arbitration and, within this, in investment arbitration.
The most prominent one concerns the duty to disclose the existence and identity of the funder in order to ascertain the existence of conflicts of interest. In fact, it is enough to think that one of the arbitrators has a connection with the funder (because the funder has funded another case where the arbitrator acts as counsel for the party, to give just one example) to understand that the integrity of the tribunal (its independence and impartiality) may be at risk.

From this point, a duty of disclosure has been firmly affirmed and is virtually internationally consolidated. However, this (limited) duty of disclosure has quickly evolved into a duty to disclose the terms and conditions of the funding arrangement, with a view to address another very hot topic in this area.

We are referring to the problem of the security to cover the costs of the proceedings (cautio judicatum solvi or “security for costs”). In fact, when the existence of a third-party funder is known, the logical step is to presume, as some (admittedly few) arbitral tribunals have already done, that the (funded) claimant is not in a position to honour a potential “adverse” award obliging him to pay the costs of the winning party. And from this it will invariably follow a request for that funded party to provide security for costs. The understanding of the vast majority of arbitral tribunals has been very restrictive on this point since, addressing it as a typical interim measure, they require the verification of all its requirements (including the danger of not being able to recover the costs). International arbitral tribunals also have made a point that the existence of a TPF is not synonymous to “impecuniosity”. However, it is clear that respondent parties in arbitration, when suspecting or knowing about the existence of a funding arrangement, very hardly escape from the temptation to seek security for costs, as it also represents a weapon to weaken the strategy and distract the procedural endeavours of the claimant.
Nonetheless, often times a poor command of the issue on security for costs endangers the procedural strategy (of either claimant or respondent). A curious example in this regard occurred in an investment arbitration case where the arbitral tribunal relied on a statement made by the legal team (who had stated that the law firm would be responsible for paying the costs of the arbitration) to require from the claimants the filling of a unilateral undertaking to pay those costs. The law firm eventually produced that undertaking.

This is indeed a point where the greatest care must be taken by counsel lest a court considers them to be the “funders of the litigation” and consequently orders them to pay the opposing party’s costs (as has it happened in the past in England).

There is no doubt, however, that the litigation financing by third parties continues to attract a great deal of attention and some criticism as well but, on the other hand, it deserves the necessary support because it represents an undeniably useful tool when it comes to guaranteeing access to the justice.

Photo by Lukasz Radziejewski on Unsplash

New Office in Lisbon

We are pleased to announce the opening of our new Lisbon office on January 17. You can find our new office at Av. Duque de Ávila, no. 23 – 3 Dto., 1000-138 Lisbon, Portugal and opening time 09:00 AM.

This is a necessary but truly delightful step since we are growing on a steady pace: more and bigger cases to handle by a growing team of talented and enthusiastic people. Onwards and upwards, doing what we like and liking what we do.

We would like to thank you for your consistent support and look forward to assisting you in our areas of expertise.

If you have any questions regarding the new location, you can contact us at +351 213530560 or send us an email to info@victoria.associates

Resolving Disputes in International Distribution Agreements in Portugal

Summary

This post addresses very briefly the mechanisms to solve international disputes, in Portugal, in the context of international distribution and agency agreements.

In order to solve disputes, suppliers and distributors have at their disposal all means of dispute resolution, including judicial litigation and other alternative means of resolution (e.g., arbitration, mediation or negotiation). Other remedies may include notifications to the Portuguese Competition Authority or to the Economic and Food Safety Authority.

Litigation

Under European Regulation (EU) No. 1215/2012, foreign companies may bring a judicial proceeding before the Portuguese courts if an agreement conferring jurisdiction has been concluded (according to article 25).

Such agreement attributing jurisdiction must be concluded: (a) in writing or verbally with written confirmation; (b) in a form which accords with practices which the parties have established between themselves; or (c) in international trade or commerce, in accordance with a usage of which the parties are or ought to have been aware and which in such trade or commerce is widely known to, and regularly observed by, parties to contracts of the same type in the particular trade or commerce concerned.

However, this Regulation applies only to member state and to civil and commercial matters, in this sense points out Article 6 of the European Regulation (EU) No 1215/2012.

Arbitration

As mentioned, it is possible to resort to alternative means of dispute resolution, requiring the existence of an arbitration agreement for this purpose. As to this specific scenario, parties may agree to submit to arbitration, thus requiring the intervention of an impartial decision maker.

The arbitration agreement should adopt written form, as the requirement being deemed to be met when the agreement is contained in a written document signed by the parties. A typical advantage of arbitration is that the award is enforceable in far more countries than court judgments considering the New York Convention of 1958 on the Recognition and Enforcement of Foreign Arbitral Awards. When settling their disputes through arbitration in Portugal, parties are granted full confidentiality and, in general, such proceedings are faster than judicial proceedings; plus, the experience and expertise of arbitrators may contribute to a more suitable decision.

Learn more

To know more, please read the Portuguese chapter of the Lexology “Getting the Deal Through” guide “Distribution & Agency 2021”, submitted by the Portuguese team of Victoria Associates (available here).

Victoria Associates has successfully represented clients in disputes related to distribution contractual relationships and welcomes any question that may arise in this context (info@victoria.associates).

Victoria Associates

Team:

Duarte G Henriques – duarte@victoria.associates

João Nuno Frazão – joao@victoria.associates

Maria Teresa Silva – teresa@victoria.associates

SVAMC Task Force on Tech Disputes, Tech Companies & International Arbitration

Victoria Associates’ Member Duarte G Henriques is co-chairing the Silicon Valley Arbitration and Mediation Center Task Force on Tech Disputes, Tech Companies & International ArbitrationThe Silicon Valley Arbitration and Mediation Center (SVAMC), a not-for-profit “think tank” organization with a global focus that encourages the use of alternative dispute resolution in the technology sector, has established this Task Force on Tech Disputes, Tech Companies & International Arbitration (the “Task Force”).

The Task Force, which is led by Paul Cohen, Duarte Henriques and Patricia Shaughnessy, seeks to explore the apparent underrepresentation of global technology companies in the arbitration community.

The lack of use of arbitration by this resourceful industry puzzles as arbitration would seem to offer a particularly attractive dispute resolution mechanism for technology company disputes. Unlike litigation, arbitration offers expeditious, private, flexible, effective adjudication by specialized arbitrators resulting in awards enforceable in 162 countries. The Task Force aims to find out why this is so through a comprehensive study using reliable methodologies and engaging in dialog with technology companies and other relevant players in the sector. Through the study and dialog with leaders and lawyers in the tech sector, the arbitration community can learn how to better serve this sector, as well as share needed information about the process and opportunities that arbitration may offer.

The Task Force also envisages to offer a bundle of tools that can make the use of arbitration more friendly for those who may be less familiar with its advantages, are accustomed to state court litigation, or have some negative impressions of arbitration.As a starting point, the Task Force has ventured some initial premises that may underlie the underuse of arbitration by technology companies; these premises are discussed in the White Paper.

The Task Force will test and adjust these premises through research, a large-scale survey, and dialog with the tech sector. A diverse working-group of experts representing different backgrounds and regions will be enlisted to carry-out the work. The on-going work of the Task Force will be presented for public discussion and comment to ensure robust review and to enhance collaboration within the arbitration and the technology business communities.

The Task Force report will become a public document which can serve to explain and adapt arbitration to technology companies needs and to inform the tech industry about the suitability of arbitration for effectively resolving their disputes.

Co-Chairs:

Patricia Shaughnessy

Paul Cohen

Duarte G. Henriques

Download the white paper HERE