New York Arbitration Week (NYAW) 2025
THE AUTHOR:
Beatriz Brito Santana,Lawyer at Bermudes Advogados
Introduction
During 2025 New York Arbitration Week, WilmerHale hosted a panel that offered a particularly valuable contribution to the discussions on the evolving influence and enduring strengths of New York as an arbitral seat. The discussion focused on the continuing significance of New York as an arbitration hub from the perspective of Latin American parties, especially in light of the region’s growing prominence in the arbitration landscape.
Under the title “Is New York as a seat and governing law still a top choice for Latin American commercial arbitration?”, the panel brought together distinguished practitioners: Ms. Jessika Rocha, Partner at Von Wobeser y Sierra (Mexico City, Mexico); Ms. Claudia Benevides, Founding Partner at Benevides Mejía (Bogotá, Colombia); Dr. Rafael Gagliardi, Founding Partner at Xavier Gagliardi Inglez Schaffer (São Paulo, Brazil) and Mr. Aníbal Martín Sabater, Partner at Chaffetz Lindsey (New York, U.S.). Mr. Claudio Salas, Special Counsel at WilmerHale (New York, U.S.) moderated the panel. Each panelist offered unique insights into the evolving dynamics surrounding the choice of New York as a seat and governing law in Latin American disputes, ultimately concluding that, despite the growth of competing arbitration hubs, New York continues to hold a prominent and enduring position as a preferred venue.
Importance of the Choice of Seat and Law
Panelists agreed that the significance of the arbitral seat is shaped by both legal and practical considerations, including enforceability of awards, procedural reliability, institutional support, and, most importantly, impartiality. Parties typically seek a neutral seat particularly because any potential set-aside proceedings will take place at the seat. However, panelists flagged that, in contracts between Latin American parties, impartiality has in some cases become less decisive. Unbalanced negotiations often allow the party with greater leverage — frequently the one with a stronger connection to a particular jurisdiction — to influence the choice of seat in its favor. These decisions commonly reflect factors such as familiarity with the jurisdiction, the subject matter of the contract, and the perceived efficiency and predictability of the local courts.
The same rationale applies to the governing law of the contract. Parties often select a law that promotes business predictability, reflects their familiarity, and aligns with the chosen seat. Panelists emphasized that it generally makes sense for the law governing the underlying contract to be that of the seat, as this can help reduce complexity in potential set-aside proceedings. While the grounds for annulment are determined by the lex arbitri, courts may still apply the arbitrability and procedural standards established by the governing law chosen by the parties. Choosing a law different from the law of the seat can therefore increase interpretive uncertainty and provide additional room for jurisdictional objections.
The Latin American Context
Latin American parties have become increasingly sophisticated users of international arbitration, driven by the growth of investment-related contracts, the expansion of commercial activity, and the development of arbitration institutions in the region. Evidence of this trend includes Brazil ranking second among countries of origin for parties in the ICC (International Chamber of Commerce) Arbitration and ADR Preliminary Statistics in 2024 and São Paulo appearing among the top 10 preferred arbitration seats in Latin America according to the Queen Mary University of London Statistics in 2025.
Despite this growth, panelists noted that Latin American seats are not always the preferred choice for international arbitration, even in disputes between regional parties. Concerns persist regarding the unpredictability of local courts, particularly in set-aside proceedings and in granting interim relief, compared with more established arbitration seats that benefit from a strong body of jurisprudence. In Brazil, for example, the Abengoa case was highlighted as a recent emblematic example that raised concerns about the consistency of Brazilian courts in arbitration matters, as the court refused to recognize a New York award, primarily because of the tribunal chair’s failure to disclose his firm’s involvement in transactions with one of the parties, a circumstance deemed contrary to Brazilian public policy.
As a result, the choice of a Latin American seat is typically driven by case-specific considerations. These may include connections to the parties, the subject matter of the contract, the applicable language, and even logistical factors such as facilitating witness testimony or evidence collection.
New York as Seat and Governing Law: Still a Preferred Option for Latin American Parties?
Under this new dynamic, does New York continue to hold a prominent position among arbitration seats for Latin American parties? According to the panelists, New York, as a long-established arbitration hub, remains a relevant option due to the predictability of its legal system, its pro-arbitration culture, pool of experienced international arbitration professionals, including both counsel and arbitrators, and a well-developed body of jurisprudence. The clarity provided by prior court decisions on matters likely to arise in potential set-aside proceedings distinguishes New York from other arbitration seats that have only recently gained prominence.
Panelists also emphasized that New York retains a significant advantage in terms of governing law, particularly for cross-border commercial agreements involving M&A and finance transactions. New York law is widely recognized as liberal, business-friendly, and reliable for capital markets and complex commercial transactions. Choosing New York law allows parties to face fewer bureaucratic hurdles and resolve potential disputes more efficiently, with outcomes likely to be respected by courts and local practitioners. This established reputation makes New York difficult to surpass as seat or governing law.
For other types of contracts, the choice of law and seat depends on multiple factors, such as the type of agreement, sector practices, and strategic considerations. While M&A contracts may naturally favor New York law due to alignment with international standards, construction contracts may lean toward local law for regulatory familiarity. When state-owned entities are involved, additional factors — such as political exposure, immunity concerns, and public law implications — may also influence both seat and governing law selection.
In sum, the panel highlighted that, despite growing competition from regional and global arbitration hubs, New York remains a top choice for Latin American parties due to its predictability, pro-arbitration culture, and prestigious institutions. Recent NYIAC (New York International Arbitration Center) Press Releases confirm New York’s leading role in international arbitration in the Americas. The ICC Dispute Resolution 2023 Statistics ranks New York fourth globally for ICC arbitrations and first in the U.S., with 59% of U.S.-seated ICC cases held there. Moreover, 61% of cases applying U.S. law opted for New York law, even when seated elsewhere, highlighting the city’s enduring importance as both a venue and choice of substantive law.
What are the Challenges for New York?
The growing number of viable arbitration seats worldwide poses a challenge to New York’s predominance. Panelists cited traditional competing hubs such as London, Paris, and Prague, which remain top choices for parties, as well as newer options such as Miami, Madrid, Mexico City, and Santiago de Chile, which are increasingly considered depending on the parties, type of dispute, and strategic objectives.
Global developments also affect New York’s position. Direct engagement between parties from different countries has increased, often occurring without the intermediation of U.S. entities, companies, and law firms, as was common in the past. Panelists referred to China as an example of an Asian country that has increasingly moved away from using U.S. law firms as intermediaries for interactions with Latin American countries regarding investments and related disputes.
Political factors, including recent U.S. immigration policies, may also influence parties’ seat selections. However, practitioners noted that logistical flexibility — such as conducting procedural and merits hearings in locations different from the arbitral seat — can mitigate these challenges, a practice that became more common during the COVID-19 pandemic. The seat provides the lex arbitri, but there is no obligation that hearings be held in the seat, so any potential difficulties parties, counsel, arbitrators, or witnesses may have entering the U.S. should not prevent parties from choosing New York as an arbitral seat.
ABOUT THE AUTHOR
Beatriz Brito Santana is a lawyer at Bermudes Advogados, a leading Brazilian firm specializing in civil and commercial arbitration and litigation. She has extensive experience in arbitration, litigation and mediation. Currently, she is pursuing her Master of Laws (LL.M.) at Columbia Law School.
*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.
