THE AUTHOR:
Pierre-Antoine Robin, Miami University Graduate, Attorney at Law (Madrid)
THE EDITORS:
Munia El Harti Alonso, Independent Practitioner, Universidad Complutense de Madrid
Ana Gerdau de Borja, Senior Associate, Derains & Gharavi
Anaïs Leray, Georgetown University Law Center Graduate, Dual Qualified Attorney (New York, Paris).
On May 31, 2024, Derains & Gharavi and Concepción Global organized a remote conference with the support of the Latin American Arbitration Association (ALARB), Canal Arbitraje, the Spanish Arbitration Club (Club Español e Iberoamericano del Arbitraje, CEIA), the Institute for Transnational Arbitration (ITAFOR) and Miami International Arbitration Society (MIAS) to discuss the role of the juez de apoyo or “supporting judge” (“juge d’appui”) in international arbitration.
The event gathered experts in the field for in-depth discussions across various jurisdictions. The conference was moderated by Liliana Sánchez (Comisión Interamericana de Arbitraje Comercial). The panel included Yves Derains, Bertrand Derains and Ana Gerdau de Borja (Derains & Gharavi), Munia El Harti Alonso (Independent Practitioner) and Carlos F. Concepción (Concepción Global), Katherine González Arrocha (Independent Practitioner) and Carlos A. Arrue Montenegro (Independent Practitioner).
In her opening remarks, Liliana Sánchez recalled the principle of minimal intervention in arbitration and highlighted the various roles of the juez de apoyo in ensuring the effectiveness and enforceability of arbitral awards. The conference provided a comparative analysis of the roles of the State court judge in their supporting activity in the United States, Brazil, and France in the first part of the discussion. It then focused on the role of the judge prior to the constitution of the arbitral tribunal and during the constitution of the arbitral tribunal, on requests for preservation of or for production of evidence, and on anti-suit injunctions.
Panorama of Common and Civil Law Jurisdictions: A Comparative Analysis
United States
Starting with the United States, Munia El Harti Alonso explained that U.S. arbitration matters are usually handled by a judge without a jury, in order to maintain the efficiency of the process (although a jury trial can be requested in motions to compel (9 USC 4)).
Despite the absence of a “juez de apoyo” or “juge d’appui”, U.S. courts have shown significant interest in shaping and overseeing certain aspects of international disputes and arbitration. For instance, the Miami International Commercial Arbitration Court‘s (MICAC) judges are vested inter alia with the authority to –
- enforce international arbitration awards,
- order interim measures,
- compel arbitration clauses,
- resolve discovery disputes but also
- appoint experts.
While U.S. courts have clear and established roles during and after the arbitration (as per the New-York Convention 1958, Panama Convention 1957 and ICSID Convention 1965), their role prior to the arbitration is not as clearly defined (citing to “The Role of National Courts at the Threshold of International Arbitration” by George A. Bermann). A example of such can be observed in a recent U.S. Supreme Court decision, Wendy Smith and Others v. Keith Spizzirri and Others, Order of the Supreme Court of the United States, 16 May 2024). According to this ruling, when a dispute is subject to arbitration and a party has requested a stay (pursuant to Section 3 of the Federal Arbitration Act) the Courts are now required to effectively stay judicial proceedings.
Brazil
Shifting the focus to Brazil, Ana Gerdau de Borja provided an overview of how Brazilian judges play a pivotal role in facilitating and supporting arbitration proceedings. She highlighted five key instances:
- When a respondent refuses to participate in arbitral proceedings, the Brazilian Arbitration Law allows the interested party to request the judge to summon the counterparty (Article 7 of Brazilian Arbitration Law No. 9,307 of 1996 as amended).
- If the arbitration agreement lacks provisions for constituting the arbitral tribunal, the judge can intervene to ensure its constitution (Article 7 of Brazilian Arbitration Law).
- Judges apply the negative effect of kompetenz-kompetenz; they may also issue anti-suit injunctions in favor of arbitration—this is possible in light of the a contrario sensu reading of the decision of the Court of Appeal of the State of Paraná in the UEG Araucaria v. Copel case (Medida Cautelar Inominada No. 160213-7, Reporting Judge Ruy Fernando de Oliveira, Decision of 15 June 2004) reversing anti-suit injunctions against arbitration granted by a first instance judge.
- Before the arbitral tribunal is formed, parties can seek interim measures from State court judges (Articles 22-A and 22-B of the Brazilian Arbitration Law).
- After the constitution of the arbitral tribunal and during the arbitration, arbitral awards and acts requested by the arbitrators can be enforced through an arbitration letter domestically (Article 22-C of the Brazilian Arbitration Law, mentioning that “the judicial court offers assistance or imposes compliance”; Articles 260 and 267 of the Brazilian Code of Civil Procedure). For foreign-seated arbitrations like in the SICIM S.P.A. v. CNO S.A. case, enforcement of arbitral decisions during the arbitration (including emergency arbitrator’s decisions) requires a letter rogatory to Brazil’s Superior Court of Justice.
France
Finally, Bertrand Derains discussed how French arbitration law expressly sets out the role of the juge d’appui. Its decision being final, the juge d’appui plays a critical role in the constitution of arbitral tribunals by promptly appointing arbitrators (unless the arbitration agreement is clearly invalid) when parties have not yet designated an institution to administer the proceedings.
Operating within a broad international jurisdiction, French judges prevent denial of justice and ensure the viability of arbitration. They also oversee evidence preservation and may issue interim measures before the arbitral tribunal’s constitution.
Interim Measures Before the Constitution of the Arbitral Tribunal
Katherine González Arrocha explained that interim measures play a crucial role in ensuring the success of arbitration before the arbitral tribunal is constituted. She noted that although the UNCITRAL Model Law on International Commercial Arbitration (2006) (“UNCITRAL Model Law”) has been widely adopted, certain aspects remain contentious.
A key issue is the concurrent jurisdiction between national courts and arbitral tribunals, particularly regarding the arbitral tribunal’s authority to alter court-ordered measures. In countries like Panama and Peru, legislation allow arbitral tribunals to modify and/or revoke said measures if circumstances change. Most legal scholars agree that new facts or changed circumstances justify revisiting interim measures to avoid contradictions.
Yves Derains stated that it is the arbitrator’s duty to review, modify and/or revoke interim measures if the circumstances so require. He added that due to the provisional nature of interim measures, the arbitrator must always review whether the interim measure should be maintained or not.
The panel discussions then turned to the constitution of the arbitral tribunal and the help that supporting institutions (both arbitral and national) can provide, with a special focus on the effect of pathological clauses on such an important step of the proceedings.
The Role of the Courts in the Constitution of the Arbitral Tribuna
Pathological Clauses
Carlos Concepción reviewed a case illustrating the pro-arbitration trend in the U.S. This case involved pathological clauses designating a non-existent arbitration center and the judge was faced with the dilemma of whether or not it should appoint the arbitral tribunal. The key element that the judge took into consideration is whether the forum is inherently part of the arbitration clause. If it is, arbitration cannot proceed, but if it is separable, the judge may appoint the tribunal. In the case at hand, after analyzing the contract, the judge appointed the arbitrators and ordered the continuation of the ad hoc arbitration according to the remaining clause.
Unusual Reliance on Arbitration Institutions in Lieu of the Supporting Judge in Certain LatAm Jurisdictions
Carlos A. Arrue Montenegro explained the role of supporting institutions in Panamanian and Peruvian arbitration law.
In these jurisdictions, institutions intervene to assist in the constitution of arbitral tribunals when parties fail to appoint arbitrators. Consequently, it substitutes the traditional supporting judge by an arbitral institution that intervenes subsidiarily, assuring the continuity of the arbitral process.
Carlos A. Arrue Montenegro importantly underlined that the participation of the supporting institution does not automatically convert the arbitration, it remains ad hoc (unless the parties voluntarily opt-in and adopt the institutional rules), preserving the autonomy of the parties.
The Role of Supporting Judges in the Production and Preservation of Evidence
Yves Derains explained that almost all legal systems allow judges to intervene before the constitution of the arbitral tribunal to preserve evidence. This process involves interim measures and raises a number of issues.
One of them is the right to appeal the judge’s decision on the production of documents/evidence. Appeals are often allowed but cause significant delay in schedule and in turn, complicate the arbitral process for the parties. Consequently, as Yves Derains suggested, resorting to such measures should only be in exceptional circumstances, when evidence is absolutely necessary and failure to obtain it would amount to a denial of justice for instance.
Anti-Suit Injunctions: Judicial Support to Prevent Conflicting Proceedings
The final topic covered by the panelists was the use of anti-suit injunctions (ASIs) in support of arbitration. Carlos Concepción and Carlos A. Arrue Montenegro reported that ASIs in favor of arbitration prevent the parties from starting proceedings while the arbitration is ongoing.
Carlos A. Arrue Montenegro outlined that, contrary to ASIs in favor of state Court – which are controversial – these injunctions are often justified when they support arbitration since their objective is to enforce the binding force and substantive effect of a breached arbitration agreement. European courts, notably in the Gregory Paul Turner v. Felix Fareed Ismail Grovit, Harada, Changepoint, Judgment of the Court of Justice of the European Union, 27 April 2004 case, have condemned them, although French courts have recognized their validity under certain conditions (Cour de Cassation, Ch. Civ I, 14 octobre 2009, No. 08-16.369, 08-16.549, Société In Beverage International et al c. Société InZone Brands Inc.).
Carlos Concepción outlined an important limitation of ASIs in U.S. courts: the courts are required to have personal jurisdiction over the party that has initiated, or would initiate the litigation, based on the minimum contacts test (China Trade & Dev. Corp. v. M.V. Choong Yong, 837 F.2d 33, 35 (2d Cir. 1987); Kaepa, Inc. v. Achilles Corp., 76 F.3d 624, 626 (5th Cir. 1996)).
Conclusion
The panel highlighted the consensus around the crucial role and impact of the supporting judge (“juge d’appui”, “juez de apoyo”) in international arbitration, no matter the jurisdiction. Going hand in hand, it is undeniable that the support of State courts is essential in various aspects of arbitral proceedings such as:
- ensuring the constitution of the arbitral tribunal,
- granting interim measures but most importantly,
- ensuring the enforcement of said measures and the arbitral award.
ABOUT THE AUTHOR
Pierre-Antoine Robin is an LL.M. Graduate specializing in International Arbitration at the University of Miami. He holds a dual degree in French and Spanish Law from the University Paris 1 Panthéon-Sorbonne and Complutense University of Madrid, as well as a Master’s degree in International Trade Law from the University Paris 1 Panthéon-Sorbonne. Pierre-Antoine is a registered member of the Madrid Bar Association.
*The views and opinions expressed by authors are theirs and do not necessarily reflect those of their organizations, employers, or Daily Jus, Jus Mundi, or Jus Connect.
