Tag: international arbitration experts

Posted on

Why Arbitrate in Portugal? Reason 2 – Language

Language & International Arbitration

Portugal – a country with communication skills

The Language background

Language barriers are one of the most prominent cultural concerns when dealing with business matters in a foreign country, and this makes sense because a seemingly innocuous mishap in wording can lead to a failed business deal. This is even more relevant in the legal world, especially in regards to international arbitration where high stakes are involved.The language used in arbitration can have either a positive or negative impact on party equality since language plays a fundamental role not only during the written pleadings, but also and more importantly during the oral phases of the proceedings. Unfortunately, this is often overlooked and it is not uncommon that advocates and arbitrators find themselves at pains in understanding and showing command of the language used in the arbitration; thusly, this is a matter which should be carefully considered.Portugal has many attributes when it comes to the Portuguese language itself. Over 250 million people speak the Portuguese language throughout the world and it is currently considered to be the 6th most widely spoken language. Portugal also shares a great amount of cultural, economic and legal backgrounds which serve as a common tie between many other countries. Due to this, a large amount of commercial transactions worldwide deal with Portuguese speaking countries.Recently, Portugal has seen a substantial growth in terms of investment and capital flows, due to larger countries, such as Brazil and Angola viewing Portugal as a safe harbor for their investments.

Language to use in arbitration

Portuguese is of course the best language to use in arbitration involving parties from Portuguese speaking countries. But what happens when one of the parties (or both) do not speak Portuguese (but nevertheless consider the option to arbitrate in Portugal)?One may well say that Portugal is one of the countries within the EU well-known for its population having a good understanding and command of English. This is due to many reasons, but mostly due to the high importance that learning English is placed on the educational system as well as the fact that movies are subtitled, rather than dubbed as in many other Western European countries.As many Portuguese citizens are highly adept in their usage of English as a second language, with much of the population speaking relatively comprehensively, this means that when it comes to selecting a jurisdiction as well as the language of arbitration, there shouldn’t be any difficulties in regards to dealing with not just the legal system but also with locals, as well as in making other logistical arrangements.In other words, arbitrations in Portugal can interchangeably use Portuguese and English as working language.

Lisbon as an alternative to London after Brexit

Further, with the looming uncertainty of the end-result of Brexit, this has made the United Kingdom very unstable on many levels. With many legal aspects still to be ironed out in these proceedings, it might not be in the best interest to select the UK as a jurisdiction for international arbitration.It is important to highlight the importance of language when selecting a language for international arbitration. Portugal has many qualities which showcase it as an advantageous choice, with language being high on the list.

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.

Posted on

Duarte Henriques Appointed as VIAC’s International Advisory Board Member

Duarte G Henriques – Member of the International Advisory Board of the Vienna International Arbitral Centre

Duarte G Henriques, Victoria Associates’ founding member, has been appointed as member of the International Advisory Board of the Vienna International Arbitral Centre. The term will run from 2020 to 2022.

Check the composition of the International Advisory Board HERE !

Get in touch with us if you want to learn more about Victoria Associates – info@victoria.associates

Posted on

We do what we like, and we like what we do

Watch our institutional video

To celebrate the New Year 2020, we released our institutional video.

Victoria Associates represents a new way of doing business. It is designed for the client.

We share the risk with the client.

We offer affordable solutions without compromising the quality of the services that are rendered.

Embark with us!

We do what we like, and we like what we do!
Posted on

The Seat of Arbitration

Seat of Arbitration

For those who aren’t familiar with international arbitration, the concept of the seat of arbitration is complicated and even unintuitive, yet it is indispensable.

The choice of the seat of arbitration can influence the arbitration proceedings in different ways. Some examples include:

  • The New York Convention – an arbitration award made in a contracting state of the New York Convention is enforceable in other contracting states. Currently, the Convention has 160 contracting states. Needless to say, it will be foolish to choose a seat which is not a contracting state of the Convention.
  • Parties are afforded a high degree of autonomy in international arbitration – they can choose the language, arbitrators, the procedural law, they can even limit the scope of appeal to an award. However, such autonomy is not absolute. It is bound by the mandatory law of the arbitral seat.
  • Courts of the seat of arbitration can aide or intervene in arbitration proceedings. It can assist in formation of the arbitration tribunal, forcing document production, restraining another party from commencing court proceedings in another jurisdiction.
  • Courts of the seat of arbitration is exclusively competent to set aside the award. Once an award has been annulled by the courts of the seat, its enforcement in other jurisdictions would become difficult. Some jurisdictions may not be willing to enforce awards which have been annulled and some may be differential to the findings of the courts of the seat.

It goes without saying that the evaluation of the choice of the seat in an arbitration clause should be taken vigorously. A jurisdiction with well drafted arbitration legislation is far from enough to guarantee its status as a preferred seat. The availability of legal expertise in the jurisdiction and of the court is equally important as the arbitration legislation.

Generally, the courts of more sophisticated seats are less inclined to intervene in arbitration proceedings.  Currently, some of the most popular seats include Geneva, Hong Kong, London, New York, Paris and Singapore.

A note of caution – it is recommended the seat of arbitration should always be clearly specified in the arbitration clause. The major arbitration institutions such as the International Chamber of Commerce (ICC), the London International Court of Arbitration (LCIA) have sample arbitration clauses available on their websites. If a contract consists of more than one documents, special care should be taken to ensure that proper and consistent references of the arbitration clause (and also the governing law for the underlying contract) are made in each document. Inconsistent references of the seat of arbitration are invitation to unnecessary legal hiccup! 

Posted on

Maximizing the use of experts in international arbitration

International arbitration is a melting pot in which the mix of different legal cultures is not always very homogeneous.  Large Anglo-Saxon law firms—Big Law—still enjoy a dominant position in the international arbitration market.  And this dominance is such that certain procedural practices typically used by litigators in common law jurisdictions have permeated and are now mainstream in international arbitration.  Party-appointed quantum experts, for instance, are nowadays ubiquitous in the adjudication of international disputes.  This practice, however, is not immune from criticism even in cases in which the presence of partisan experts may be warranted to help the tribunals award just compensation.

Arbitration users in continental Europe and Latin America are often concerned that the financial dependence of the experts on the party that appoints them could be the cause of the frequent and extreme gap that separates opposing quantum testimonies.  Other critics highlight the fact that the experts’ excessive partisanship, when coupled with the tribunals’ struggle—or failure—to assess expert testimony, could entail a high risk of unfair adjudication that frequently results in awards that do not adopt the experts’ recommendations and simply “split the baby.”  Thus, for reasons of fairness, cost, and efficiency, many of the critical voices advocate in favor of using neutral tribunal-appointed experts over partisan experts.

Research on the role of quantum experts in investment arbitration shows that the proposal to prefer neutral experts over party-appointed experts largely misses the point because while the latter appear in the quantum phase of every award examined, the former are rarely used, if at all.  Serious empirical studies also show that quantum experts are developing a sort of “repeat-players’ game” in which a few individuals, associated with even fewer firms, concentrate all of the appointments.  Interestingly, the data available from investment arbitration cases shows that the experts, irrespective of their repeat-player status, seldom manage to dictate the awards’ monetary outcomes.  In fact, the tribunals that hear investment cases award damages in a very conservative manner—less rather than more—and only rarely “split the baby.”  

While experts have little to gain from exaggerating their clients’ claims and the lawyers from encouraging such type of behavior, the so-called “battle of the experts” persists in more recent cases.  At the same time, the fees payable to the experts remain a very significant portion of the clients’ bill.

Our guiding principle at Victoria Associates is to accomplish our clients’ goals in every case and to do so at the lowest possible cost.  One way in which our lawyers honor this principle is by relying on a wealth of collective knowledge and experience navigating the procedural complexities of past cases to tailor successful strategies for the efficient use of quantum experts in future cases.  Our lawyers are knowledgeable about damages issues and will do a significant portion of the groundwork that larger firms typically entrust to the experts. 

This allows Victoria Associates to provide better legal advice to the client and better instructions to the experts with whom we work.  In the aggregate, this approach ensures that the quantum phase of an arbitration is conducted in a manner that maximizes the role of the experts we appoint and increases the overall chances of success for our clients.

Posted on

Reshaping International Arbitration


A Contribution for the Improvement of Efficiency in IDR


(A work in progress)


International Arbitration has become too costly, time consuming and, therefore, inefficient. Parties from different parts of the world insist in bringing their own legal practices and traditions to arbitration. More undesirably than not, some bring their own guerrilla apparatus, ranging from raising challenges against one or more arbitrators to request lengthy and costly evidentiary production like discovery or full-fledged cross-examination of witnesses.

It is true that there is significant and fundamental progress in International Arbitration. For instance, the use of technology now allows tribunals to hold hearings remotely from virtually anywhere in the globe, and the electronic filing of motions can dispense with the telefax. However, the technological revolution has not been accompanied by procedural efficiency and swiftness in the decision-making process. Instead of a streamlined mechanism, arbitration proceedings are increasingly subject to regulation and to an undesired level of standardisation that doesn’t necessarily bring more predictability. It may also be said that, to some extent, some pieces of soft law have allowed parties to replicate in arbitration the procedures they are familiar with in state courts. The use of evidence production, and more particularly discovery (combined with “e-discovery”), by US law firms elicits this idea.

Definitely, arbitration is not what it used to be.

International Arbitration is not what it used to be

So why not take a step back whilst also keeping the positive improvements?

To do that, one needs to look at the early days of arbitration and ask what was it that made it become so popular in the first place. Why did parties started resorting to arbitration instead of going to state courts?

There are a few reasons related to the legal framework that contributed to such popularity, in particular the New York Convention on the Recognition and Enforcement of Arbitral Awards of 1958, and the UNCITRAL Model Law that made arbitration national laws seemingly similar among themselves.

However, the main reasons that led parties to opt for arbitration can be summarised in a few features:

  • Swiftness, thus reduced time and costs;
  • Flexibility of the proceedings;
  • Confidentiality;
  • Neutrality of the seat;
  • Neutrality and / or expertise of the decision-makers appointed by the parties;
  • Finality of the award.

The proceedings must of course comply with a few indispensable principles, namely:

  • The right to properly present the case;
  • Equality of arms;
  • Independence and impartiality of the decision maker.

Therefore, my notion of reshaping arbitration is to go back to a proceeding where those basic principles are observed, and where there is extensive use of new technologies, but limited similarities to state court litigation. At the same time, arbitrators must be granted – and indeed exercise – more power in managing the proceedings. And be free from any paranoia on due process.

Improving Efficiency

Accordingly, the arbitral proceeding should follow a “less is more” policy:

  • less time to file submissions and strict compliance to a timetable agreed between the parties and the tribunal;
  • less (and less lengthy) written submissions;
  • immediate production of evidence and limited requests for production of evidence;
  • first Case Management Conference as soon as possible and covering as many aspects as possible; desirably, the aim of this Case Management Conference is to produce a combination of a “terms of reference” and a “procedural order Nr. 1”;
  • use of technological protocols to exchange submissions, make decisions, and produce notices;
  • streamlined procedures in the making of procedural orders;
  • use of technology to hold hearings and other conferences.

In any event, an efficient arbitration needs to have more of:

  • predictability;
  • control of costs;
  • background on the decision-makers;
  • control on ethical conduct.

There are already a handful of profiling and procedural tools that help tribunals and parties to accomplish those results and provide the necessary information to select the best possible decision maker for each case.

Posted on

Why Victoria Associates?

Why Victoria?

Victoria is a story of adventure, risk and success as the first ship to circumvent the world under the command of the Portuguese explorer Ferdinand Magellan.

When the fleet set off from Spain almost to the day 500 years ago, they could not know what they would ultimately accomplish, but Magellan and the other sailors had the courage and the will to succeed that made the ship Victoria the first to sail around the world, a miraculous accomplishment against all odds.

We chose Victoria Associates for our name as we embody the values and discipline of Magellan to achieve success for our clients regardless of the difficulty of the matter.

Victoria Associates also reflects other fundamental values of Magellan: win for and share risks with our clients.

We will guide you through the perilous straits of international dispute resolution.

Embark with us!