THE AUTHORS:
Gabriela Mirandola Burmeister, Foreign Associate at DLA Piper
Pierre-Antoine Robin, Miami University Graduate, Attorney at Law (Madrid)
THE EDITORS:
Munia El Harti Alonso, Independent Practitioner, Universidad Complutense de Madrid
Anaïs Leray, Georgetown University Law Center Graduate, Dual Qualified Attorney (New York, Paris)
On 11 September 2024, Young Miami International Arbitration Society (MIAS) launched its first in-person event of the season with the support of the Madrid International Arbitration Center – Ibero-American Arbitration Center (CIAM-CIAR), Canal Arbitraje, the Spanish Arbitration Club (Club Español e Iberoamericano del Arbitraje, CEIA), the Instituto Español de Comercio Exterior (ICEX), ICC Spain, Ciarb Iberia, Jus Mundi, Arbitration Channel and the Hispanic National Bar Association (HNBA).
Held simultaneously in Miami (Hughes Hubbard and Reed) and in Madrid (Gómez Aceboy y Pombo), the panel “Transatlantic Perspectives Miami-Madrid: Hubs of Influence” was hosted to celebrate the close relationship between the two cities and explore the synergies between the two key markets in the international arbitration field.
Presenting the cultural and macroeconomic backdrop of the panel, Munia El Harti Alonso (Chair of the International Relations Committee of Young MIAS, Independent Practitioner) and Natalia Jaramillo (Chair of the Substantive Participation Committee, Associate, White & Case) mentioned in their opening remarks that over the past decade, the US and Spain have strengthened their bilateral relations, aiming to leverage their strategic positions as bridges between the United States, Europe, and Latin America. Historically, Spanish companies have viewed Latin America as a natural terrain for international expansion. However, in the last decade, they have increasingly sought to redirect their investments into the United States.
They were joined by esteemed professionals such as D. Javier Yraola Burgos (Economic and Commercial Counselor of the Embassy of Spain and Director of ICEX in Miami); Katharine Menéndez de la Cuesta (Partner, Holland & Knight); Luis López Alonso (Partner, Gómez Acebo y Pombo) ; Ana Lombardía (Director, AAA-ICDR); Bernardo Cremades Jr (Socio, Cremades y Asociados); Brian Vaca (Senior Associate, Hughes Hubbard & Reed in Miami and Washington); and Patricia Saiz (Independent Arbitrator, Member of the ICC International Court of Arbitration and Professor at Esade).
The in-depth discussions and comparative analyses across both jurisdictions focused on the following key topics:
- the US-Spain and Miami-Madrid commercial and investment frameworks;
- Madrid and Miami as hubs for international arbitration and their synergies; and
- cross-border arbitration and litigation, including the enforcement of awards.
US-Spain and Miami-Madrid Commercial and Investment Framework
Javier Yraola Burgos elucidated the growing relationship between the United States and Spain, noting that Miami has emerged as a prominent hub for Spanish companies, particularly those originally based in Madrid. He explained that the establishment of Spanish companies in Florida, especially in Miami, is due to the fact that, outside of Europe, the U.S. is Spain’s:
- top trade and investment partner;
- primary export client; and
- second-largest supplier of goods and services outside Europe,
Thus, making it Spain’s principal direct investment partner outside of Europe. He also took the opportunity to reiterate the importance of ICEX in supporting the internationalization of Spanish companies in the U.S., doing so by providing information on exports, establishment, and direct investments.
Katharine Menendez de la Cuesta emphasized the crucial role of law firms in advising Spanish companies entering the U.S. on structuring, establishing presence, addressing concerns, and protecting their interests in disputes. As a result, attorneys, whether American or Spanish, establish networks with each other to address these challenges.
She further mentioned the importance of verifying whether American and Spanish companies are safeguarded by an investment treaty. The role of legal counsel being, in such a case, to determine whether investments are covered by applicable investment treaties between both Nations and whether fair and equitable treatment exists for local and foreign companies alike. Bearing in mind the importance of consulting the Office of Foreign Assets Control (OFAC) and the requirement necessary for arbitrators to arbitrate sanctioned parties (such as Venezuela and Cuba, two important trade partners for Spain currently under U.S. sanctions).
While protection is important, she stressed the critical nature of avoiding litigation in local courts. Spanish companies often face challenges due to differences between the U.S. and Spanish legal systems, with litigation in the U.S. being significantly more costly. This is the reason why International Arbitration becomes significant, serving as a vital, neutral dispute resolution mechanism under international treaties.
Competing or Complementarity Arbitration Hubs?
Miami: A Sui Generis Hub for International Arbitration
Ana Lombardía Villalba emphasized Florida’s emergence as a key hub for international arbitration with Miami ranking just below New York given the recent influx of its arbitration cases. The rising of Florida – and Miami in particular – as a hub can be explained by the following:
- The adoption of state-level legislation inspired by the UNCITRAL (United Nations Commission On International Trade Law) Model Law on International Commercial Arbitration (1985).
- Florida’s judges being well-trained in international arbitration, allowing them to manage complex cases effectively.
- The State’s geographic location coupled to its legal culture providing a favorable environment for investment and a competitive edge in Latin American cases.
- A growing participation of Latin parties alongside an increase in cases originating from Latin America.
Madrid: The Determination to Become a Global Arbitration Hub
Luis López Alonso emphasized that, as demonstrated by recent decisions from Spain’s Constitutional Court, Madrid has firmly established itself as a significant hub for International Arbitration. The Court, by ruling that annulments must be based on specific legal grounds rather than broad claims of Public Policy violation, has significantly restricted the national courts’ ability to annul arbitral awards.
In addition, recent statistics show significant growth in arbitration within key institutions in Madrid. This is explained by the use of Spanish in arbitration which offers clear advantages, including cost savings (avoiding translations), quicker proceedings and enhances cultural alignment in disputes involving Latin America.
Cross-border Arbitration: Forum Non-Conveniens and Enforcement of Awards.
Bernardo Cremades Jr. highlighted that the U.S. Federal Arbitration Act (FAA)incorporates grounds for refusal of the recognition of awards in accordance with the New York and Panama Conventions, with judges typically interpreting these exceptions narrowly.
Brian Vaca further explained that the limited grounds for annulment under Section 10 of the FAA are crucial because they enhance predictability and legal certainty for parties selecting Miami as their arbitration seat. In addition, according to the limited criteria of Chapter 1 of the FAA, only the court of the seat of arbitration can set aside an award in comparison to the New York Convention which refers exclusively to recognition and enforcement.
Brian Vaca also discussed the significance of the Hidroeléctrica v. AIC and Novacom, Opinion of the United States Court of Appeals for the Eleventh Circuit, 13 April 2023, which clarified the distinction between the grounds for
- denying recognition of an arbitral award and
- those for its annulment, avoiding further confusion between the two.
On the matter of forum non conveniens, Bernardo Cremades Jr. mentioned that it is considered a procedural issue before U.S. courts and is guided by three main factors:
- Deference to the Plaintiff’s Chosen Forum: Courts consider the rationale behind a foreign plaintiff choosing the U.S. as a forum, granting deference if the choice is based on genuine convenience rather than forum shopping.
- Adequate Alternative Forum: The defendant bears the burden of proof to demonstrate that a suitable alternative forum exists where
- the defendants can be legally notified and
- the dispute can be litigated.
- Balance of Interests: Courts weigh private interests against public interests to determine the appropriateness of the chosen forum.
Bernardo Cremades Jr. further underlined the divergence in the application of forum non-conveniens among U.S. appellate courts. Some courts, have applied said doctrine in cases where an essential norm of the dispute is linked to the national sovereignty of another State, while others, such as the D.C. Circuit, have consistently rejected its application in enforcing foreign arbitral awards.
This divergence is illustrated in Monde Re v. Ukragazprom, Judgment of the United States Court of Appeals for the Second Circuit, 15 November 2002,where the court stated that forum non conveniens is a limited exception based on the inherent power of courts to manage their own affairs for orderly and expedient resolution. The court dismissed the recognition request, determining that the case required extensive and complex proceedings better suited for another forum. The same approach was followed in Figueiredo Ferraz E Engenharia de Projeto Ltda. v. Republic of Peru, 09-3925 (2d Cir. 2011). In contrast, in TMR v. SPF, Opinion of United States Court of Appeals for the District of Columbia Circuits, 17 June 2005, the court asserted that the New York Convention does not permit such discretionary dismissals.
Conclusion
This panel highlighted the complementary roles of Madrid and Miami as arbitration hubs, both legal centers actively serving as bridges connecting Europe, North America, but also Latin America. In addition to their shared commitment within their arbitration communities to promote the use of Spanish in arbitration proceedings, the historical, cultural, and geopolitical ties between these two cities can foster a more accessible, efficient, and inclusive arbitration ecosystem for Spanish-speaking parties. The above, coupled with the continued economic collaboration between both cities, allows to speculate that they will continue to grow, becoming increasingly more important but complimentary arbitration hubs.
ABOUT THE AUTHORS
Gabriela Marandola Burmeister is a foreign associate at DLA Piper Vienna. She is a Brazilian-qualified lawyer and a member of the Brazilian Bar Association. Gabriela holds a Bachelor’s degree in Law from Pontifícia Universidade Católica de São Paulo (PUC-SP) and an LL.M. degree in International Arbitration from the University of Miami School of Law.
Pierre-Antoine Robin is an LL.M. candidate 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. He is currently doing his practicum externship at King & Spalding and 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.
