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.  

Arbitration and Art Law: Navigating the Intersection of two Complex Fields

The need for expertise

As the art world continues to grow, so does the need for professionals who understand both the legal and commercial aspects of the industry. With the increasing frequency of disputes in the art market, it is crucial to have a deep understanding of arbitration and its relationship with art law.

Arbitration is a method of resolving disputes outside of the traditional court system. It is often used in art law to settle disputes between buyers and sellers, collectors and museums, and artists and galleries. The key benefit of arbitration is that it provides a confidential and efficient process for resolving disputes, without the need for public court proceedings.

Art law, on the other hand, covers a wide range of legal issues related to the creation, ownership, and sale of art. It encompasses areas such as copyright, trademark, and cultural heritage laws, as well as contracts and negotiations in the art market.

As arbitration and art law intersect, it is essential for professionals to have a thorough understanding of both fields. Whether you are a lawyer, art dealer, or artist, having a deep understanding of both arbitration and art law will give you a significant competitive advantage in the art world.

Types of Disputes in the Art sector

The art sector is subject to a variety of disputes, including:

  1. Ownership disputes: when multiple parties claim ownership of the same work of art.
  2. Authentication disputes: when the authenticity of a work of art is called into question.
  3. Contract disputes: when disagreements arise over the terms of an agreement between an artist, gallery, or collector and a buyer.
  4. Copyright disputes: when someone uses a work of art without the permission of the copyright holder.
  5. Forgery disputes: when a work of art is found to be a fake or counterfeit.
  6. Insurance disputes: disagreements between insurance companies and policyholders over coverage for losses related to works of art.
  7. Financing disputes: when a work of art is used as a collateral in a financial facility.
  8. Valuation disputes: when the value of a work of art is in dispute, often in the context of insurance or tax matters.
  9. Cultural heritage disputes: disputes over the ownership and display of cultural artifacts, including works of art.

Stakeholders to Disputes in Art Law

In art law disputes, there can be several potential stakeholders, including:

  1. Artists – They have a vested interest in the protection of their work and the recognition of their rights as creators.
  2. Collectors – They may be involved in disputes over authenticity, title, and ownership of artworks.
  3. Dealers and Galleries – They can be impacted by disputes over commission, fraud, and breaches of contract related to the sale or exhibition of art.
  4. Auction Houses – They can be parties to disputes involving the sale or authenticity of artworks.
  5. Insurance Companies – They may be involved in disputes over coverage for loss or damage to artworks.
  6. Museums – They may be involved in disputes over the ownership, loan, or exhibition of artworks.
  7. Estate Executors and Heirs – They may be involved in disputes over the distribution of artworks in an estate.
  8. Governments and Public Institutions – They may be parties to disputes over the return of cultural heritage or stolen artworks.

These stakeholders may seek to assert their rights and interests through various legal mechanisms and arbitration is surely the best tool to do so.

***

Duarte Henriques is a founder member of Victoria Associates and he is arbitrator listed at the Court of Arbitration for Art (CAfA)

#Arbitration #ArtLaw #Legal #ArtMarket #Culture #Heritage #Copyright #Trademark #Negotiations #Disputes #Confidentiality #Efficiency #CompetitiveAdvantage #Lawyers #ArtDealers #Artists

(Photo of Steve Johnson on Unsplash)

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

Portuguese International Arbitration – Chapter of the International Comparative Legal Guides

A practical cross-border insight into international arbitration work.

Victoria Associates’ members Duarte Henriques, João Frazão and Teresa Roldão (trainee), in collaboration with International Comparative Legal Guides (iclg.com), have written the International Arbitration Portuguese Guide*.

This Guide provides an overview of the most important aspects of the Portuguese International Arbitration legal framework and practice related to arbitration.

The Guide provides answers to questions such as:

  • What has been the approach of the national courts to the enforcement of arbitration agreements?
  • Are there any subject matters that may not be referred to arbitration under the governing law of your jurisdiction? What is the general approach used in determining whether or not a dispute is “arbitrable”?
  • Are there any limits to the parties’ autonomy to select arbitrators?

Read the full Guide HERE and contact us if you have any question (info@victoria.associates)


About Victoria Associates

Victoria Associates is international and knows no borders. 

We are qualified to practice in France, Arizona, California, D.C., Massachusetts, New York, England & Wales, Portugal,  Spain, Greece, Frankfurt, Brazil and Venezuela.  

We work in English, Greek,  French, German, Spanish and Portuguese.

We advise and represent our clients in international commercial arbitration, investment arbitration and sports arbitration. Our team has vast experience in representing clients in arbitral proceedings under the rules of the main international arbitration institutions, including the Court of Arbitration for Sport – CAS, the International Chamber of Commerce – ICC, the International Centre for Settlement of Investment Disputes – ICSID, the London Court of International Arbitration – LCIA, the American Arbitration Association (AAA) and its international arm (ICDR), as well as in “ad hoc” arbitrations under the UNCITRAL Arbitration Rules. While Victoria Associates covers disputes in a wide range of business and commercial areas, our team has strong expertise in disputes related to Banking & Finance Law, Oil & Gas, Insurance & Reinsurance, Shipping, Energy, Public International Law and Human Rights, Construction, Engineering & Real Estate, Distribution, Business & Commercial Law, Intellectual Property and Internet Gaming, Mergers & Acquisitions and International Frauds and tracing assets.


* First published in the ICLG – International Arbitration –

https://iclg.com/practice-areas/international-arbitration-laws-and-regulations/portugal

“Costs and Fees” in International Arbitration in Portugal

Victoria Associates member Duarte G Henriques authors the Chapter “Costs and Fees” in the book “International Arbitration in Portugal”, André Pereira da Fonseca et al. eds., Wolters Kluwer, 2020.

How much is this going to cost me?

This is the first question one asks when thinking about initiating an arbitration.

The article “Costs and Fees” endeavours to answer that question regarding the Portuguese arbitration practice and legal framework. The article addresses the costs in ad hoc arbitration, as well as in the most relevant Portuguese arbitral institution, the recoverability of those costs and the different criteria that may be used to decide upon that issue.

Why Arbitrate in Portugal? Reason 7 – Supportive Courts

International Arbitration & Portugal

Supportive State Courts

In addition to the several previously mentioned advantages in regards to selecting Portugal as an all-encompassing jurisdiction for the resolution of international arbitration disputes, it is worthwhile mentioning the adaptive and supportive Portuguese state courts.

As touched upon in previous posts, Portugal shares historic and legal roots with other Lusophonic countries, which has been a critical factor in the selection of Portugal in the execution of bilateral agreements, making it appealing as a jurisdiction for international arbitration. These agreements have led to Portugal being considered as having supportive state courts within the realm of arbitration.

Courts in Portugal consistently adhere to the principle that the arbitral tribunals are competent to decide on their own competency. A number of cases related to swaps show that courts do not hesitate to refer parties to arbitration even in the event that there exist allegations that these contracts are null for violating public policy. Arbitral tribunals are sufficiently competent to decide on the costs of arbitration, and courts will only intervene where excessive situations occur. Arbitral awards are only set aside when there is a violation of public policy or other fundamental principles of arbitration – which is very rare!

The UNCITRAL Model Law contains the fundamental principles of party autonomy as well as all the legal tools necessary for the successful resolution of an international arbitration dispute. These tools, embodied within the Portuguese state court system, include equality of parties, due process as well as the finality of the award. Another advantage of this system entails the fact that any dispute can be subject to arbitration as long as it is not exclusively submitted to the state courts and concern economic interests. Disputes not involving economic interests can also be subject to arbitration so long as the dispute in question is capable of being subject to a settlement by the parties. The state court system also allows for the arbitration of issues concerning labor agreements, which in the past were only open for dispute within judicial courts.


LEARN MORE

If you would like more information or have any questions regarding international arbitration in Portugal, please send us an email to info@victoria.associates and we will be in touch as soon as is possible.

Victoria Associates Welcomes Miguel Salas and Sevilla !

Victoria’s reaching the starting point!

We are thrilled to share our latest news with you!

Victoria Associates has reached the starting point and is adding an office where it all has begun. Indeed, the expedition of Ferdinand Magellan truly begun in Sevilla, then the capital city of Castilla (Spain). Victoria was the only ship to return safely to its departure harbour, some three years later.

Now, Victoria Associates is proud to announce that it has an office in Seville, in one of its premium locations and just across the “Catedral de Sevilla” and the “Archivo General de Indias“.(1)

Through the incorporation of its new member, Miguel Salas, founder partner of Salas y Donaire, Victoria Associates is expanding its reach and is now able to provide any kind of services related to international disputes in Spain.

Miguel Salas is a seasoned lawyer, with 25+ years of experience, dealing in a number of areas of law, particularly litigation and arbitration.

With this addition, Victoria Associates not only boosts its reach but also and more importantly is welcoming a lawyer truly embedded in its spirit and values. It will surely be a tremendous and rewarding experience!

Bienvenido Miguel, bienvenida Sevilla,

¡ OLÉ !


(1) The General Archive of the Indies in Seville was founded in 1785 by King Carlos III, with the aim of centralising in a single place the documentation relating to the administration of the Spanish overseas territories that had been dispersed in various archives.

The archive conserves some 43,000 files, with some 80 million pages and 8,000 maps and drawings that come mainly from the entities responsible for the administration of the overseas territories. It was declared a World Heritage Site by UNESCO in 1987, along with the Cathedral and the Real Alcázar.

Why Arbitrate in Portugal? Reason 6 – A Robust Legal System

International Arbitration & Portuguese Law

A robust legal system

When selecting a jurisdiction for international arbitration, as noted in previous posts, there are several important factors to consider, among them, is the legal system of the country chosen. Portugal has recently implemented some changes to its legal system, including to international arbitration laws, which make it an alluring jurisdiction.

On the 14th of March 2012 the new Portuguese Voluntary Arbitration Law (PAL) came into effect and revoked the former, and more outdated, Portuguese arbitration law. The PAL is inspired by the Uncitral Model Law, and aims to introduce a more modernized system for arbitration and further promote Portugal as an appealing jurisdiction for international arbitration.

PAL provides for the most in-demand features ranging from the principle of separability of arbitration agreements as well as the competence of arbitral tribunals to decide on their own competence to the joinder of third parties, as well as the powers that are granted to arbitral tribunals to order interim measures in pending or about to start arbitrations. The general advantageous principles underlying the PAL are:

  • Party autonomy;
  • Kompetenz-kompetenz: the PAL confers jurisdiction on state courts to decide a dispute only where the arbitration agreement is manifestly null and void, inoperative or incapable of being performed;
  • Adhering to procedural principles such as, party equality, due and fair process, and the adversarial principle.

The principle of separability of the arbitration clause recognized by the PAL is also an advantage as a finding of nullity or unenforceability of the contract will not affect the validity of the arbitration clause.

Arbitral awards in Portugal are final and subject to no appeal. An annulment of the arbitral award may only be granted under very limited and special circumstances. This new arbitration law also provides for very constricted and limited circumstances under which a foreign arbitral award may be refused recognition and enforcement.

Portugal is a part of around 60 bilateral investment treaties, making it a prime location for the resolution of international arbitration cases from a varying and wide range of countries.  Portugal is also a signatory party to the most relevant international treaties related to arbitration, such as the New York Convention and the International Centre for Settlement of Investment Disputes (ICSID) Convention. Being a part of these various treaties makes it so that there is less legal confusion when selecting Portugal as a jurisdiction for arbitration.


LEARN MORE

If you would like more information or have any questions regarding international arbitration in Portugal, please send an email to info@victoria.associates and we will be in touch as soon as is possible.