New York Arbitration Week (NYAW) 2025
THE AUTHOR:
Gabriel Batista, LL.B. Candidate at the University of São Paulo & Legal Assistant at Pinheiro Neto Advogados
Introduction
The “Arbitration 2 Worlds” conference was held over two days, on November 13 and 14, 2025, at JAMS’ headquarters in New York. The event brought together scholars, practitioners, and professors for a series of in-person discussions on the interaction between international arbitration and national courts across four stages of the arbitral process, with a primary focus on perspectives from the United States and Brazil.
The conference offered valuable insights from both practitioners and experienced academics, covering the full life cycle of international dispute resolution. The panels addressed critical procedural and substantive issues, comparing legal approaches in the U.S. and Brazil and exploring emerging arbitration trends. Sponsored by Cleary Gottlieb Steen & Hamilton LLP, Bermudes Advogados, CAM-CCBC (Center for Arbitration and Mediation of the Chamber of Commerce Brazil-Canada), JAMS, Chaffetz Lindsey, Cesar Asfor Rocha Advogados, Wald Advogados, and Souto Correa Advogados, the event was a joint initiative of Arbitration Channel, Columbia Law School, and New York University School of Law, marking its fourth edition in New York.
The Client Perspective and the Public Sector
Speakers: Dr. Paula Butti Cardoso (AGU), Juliana Criscuolo (Motiva), Dr. Cesar Pereira, C. Arb FCIArb (Justen, Pereira, Oliveira & Talamini), Emily C. Westphalen, LLM (BHP), and Gilbert K. Squires (moderator), P.E., BCS, DCIARB, FClArb (JAMS).
The conference opened with a panel emphasizing the increasingly strategic role of in-house counsel in arbitration. Particular attention was given to the influence of in-house counsel on arbitrator selection, with panelists noting the continued difficulty of appointing younger arbitrators.
The discussion highlighted that the Brazilian State has progressively structured itself to make effective use of arbitration, especially through the pioneering role of the Office of the General Counsel for the Federal Government (“AGU“) in introducing arbitration clauses into public works and infrastructure contracts.A central point underscored was the need for public authorities to exercise caution before including arbitration clauses in contracts, as arbitration is not suitable for every contractual relationship. Still in the public sector context, Brazilian courts of appeal were described as acting frequently as supervisors of arbitral decisions involving the Brazilian State, with the Federal Court of Accounts (“TCU“) playing a decisive role in this context.
The panelists also agreed that settlement is generally less costly than litigation in the United States, while noting that dispute boards play a particularly important role in Brazil due to their efficiency in resolving issues at an early stage.
Preliminary Measures
Speakers: Robert Smit (Columbia Law School Professor), Yasmine Lahlou (Chaffetz Lindsey), Betsy Hellman (Skadden, Arps, Slate, Meagher & Flom LLP), Analla Gonzalez (BakerHostetler), and Caetano Berenguer (Bermudes Advogados), moderator.
The second day began with an exciting panel examining the standards for granting interim relief, the allocation of competence between arbitrators and courts, and the interaction between these authorities.
Panelists observed that arbitrators often perceive the standards for granting interim measures as highly discretionary. Reference was made to the UNCITRAL (United Nations Commission on International Trade Law) Model Law on International Commercial Arbitration (2006), which establishes three conditions for interim relief, including a reasonable possibility of success on the merits, while the ICC Rules adopt a more flexible standard deferring to arbitrators’ discretion.
With respect to the allocation of competence to issue these decisions, the panel discussed the subsidiary or arbitral primacy model applied in Brazil, under which parties may seek interim relief from national courts only before the arbitral tribunal is constituted. Once constituted, the tribunal retains final authority to review, modify, or revoke any interim measures. Arbitrators may also reconsider or reverse court-granted measures within the scope of their jurisdiction, although they are expected to accord with due respect to prior judicial decisions.
Production of Evidence
Speakers: Kabir Duggal (Columbia Law School Professor), Mauricio Gomm Santos (Gomm Arbitration), Flavio Luiz Yarshell (University of São Paulo Professor), Lea Haber Kuck (Kuck Arbitration), and Gustavo Vaughn (Cesar Asfor Rocha Advogados), moderator.
The discussion then focused on mitigating due process paranoia through effective procedural management. The speakers emphasized that arbitrators must employ thoughtful case management and apply proportionality to reconcile expectations arising from different legal traditions. Tribunals were encouraged to structure proceedings from the outset by issuing detailed procedural timetables and enforcing firm deadlines.
The panel discussed the application of Article 9 of the IBA Rules on the Taking of Evidence 2020, which reinforces the tribunal’s discretion to exclude evidence on grounds of procedural economy, fairness, or duplication. Reference was also made to the proportionality factors embedded in Rule 26 of the U.S. Federal Rules of Civil Procedure. The panel underscored that the effectiveness of these tools depends largely on the arbitrators themselves: a tribunal that is diligent, available, and deeply engaged with the case is better positioned to manage proceedings decisively.
With respect to document production in arbitration, the panel reiterated that it is not intended to replicate U.S.-style discovery. Article 24.10 of the ICDR Rules explicitly provides that depositions, interrogatories, and requests to admit are not appropriate in arbitral proceedings; instead, international arbitration favors narrowly tailored document requests, frequently organized through Redfern Schedules. Regarding expert evidence, the panel observed that while the international trend favors party-appointed experts, practice in Brazil and much of Latin America traditionally relies on tribunal-appointed experts.
Set-Aside Proceedings
Speakers: Gilberto Giusti (Pinheiro Neto Advogados), John Fellas (NYU School of Law), Katie Gonzalez (Cleary Gottlieb), Anne Marie Whitesell (Georgetown University Professor), and Rafael Alves (Souto Correa Advogados), moderator.
Following a brief break, the conference then turned to the duty of disclosure, identified as a leading cause of set-aside actions in Brazil. Brazilian courts require a high degree of transparency from arbitrators, particularly with respect to financial relationships. By contrast, while the United States has a tradition of over-disclosure, successful challenges to awards on disclosure grounds remain rare. Under the U.S. Federal Arbitration Act, challenges based on fraud or corruption require clear and convincing evidence, facing a deliberately high threshold.
The panel also addressed the principle of iura novit curia and the due process risks associated with arbitral awards based on legal theories not previously raised by the parties, concluding that arbitrators have a duty to invite submissions if they intend to rely on a legal principle not argued by the parties.
Recognition and Enforcement
Speakers: Stephanie Cohen (Cohen Arbitration), Marcio Vasconcellos (King & Spalding), Michelle Grando (White & Case), Dana Macgrath (Macgrath Arbitration), and Riccardo Torre (Wald Advogados), moderator.
The discussion then moved to the fourth panel, focused on the enforcement of awards against non-participating parties. Panelists observed that the most common ground for refusing enforcement under the New York Convention is the failure to provide proper notice. Even in cases of non-participation, claimants must prove their case on the merits, as default judgments are incompatible with arbitration.
The panel also addressed enforcement against non-signatories, typically pursued through theories such as piercing the corporate veil or alter ego, noting that enforcement is generally more feasible at the execution stage of a confirmed judgment than during summary confirmation proceedings. In the context of enforcement against state entities in the United States under the Foreign Sovereign Immunities Act, the panel cited the Crystallex v. Venezuela case, observing that veil piercing may be permitted where the entity is subject to extensive state control.
The discussion further addressed third-party funding, noting its wide use in the United States. Funders must avoid exercising control over the conduct of the case in order to prevent liability, and arbitrators increasingly require disclosure of third-party funding arrangements to assess conflicts of interest or applications for security for costs.
Q&A and Future Trends
Speakers: Carlos Alberto Carmona (University of São Paulo Professor), moderator, George Bermann (Columbia Law School Professor), and Franco Ferrari (NYU School of Law Professor).
The final session focused on conceptual debates and the evolving landscape of arbitration. Professor George Bermann emphasized that the seat of arbitration remains a cornerstone of the arbitral system, essential for determining the applicable legal regime and annulment authority, with ICSID arbitration as the principal self-contained exception. He further stressed that party autonomy is not absolute, but constrained by mandatory rules protecting the parties, the public interest, and the integrity of the arbitral system itself.
Looking ahead, the panel identified several themes shaping the future of arbitration. Professor Franco Ferrari emphasized diversity as a priority extending beyond gender and geography to include cognitive and generational diversity. Artificial intelligence emerged as another key theme, with AI tools already transforming arbitration through enhanced research, document analysis, and procedural optimization; however, panelists cautioned that the use of AI raises significant due process concerns related to transparency and explainability. Finally, the panel addressed the growing relevance of ESG considerations in arbitration, particularly in disputes involving foreign investment, climate policy, and corporate responsibility.
Conclusion
The “Arbitration 2 Worlds” conference provided a comprehensive examination of the complex interplay between international arbitration and national courts across jurisdictions. The discussions underscored that the future of arbitration will be defined by adaptation, recalibration, and intensified engagement with technological, societal, and regulatory forces. As arbitration continues to evolve, practitioners must navigate the delicate balance between party autonomy, procedural efficiency, and the safeguards provided by judicial oversight, while embracing innovation in a manner consistent with due process and the legitimacy of the arbitral system.
ABOUT THE AUTHOR
Gabriel Batista is pursuing an LL.B. Candidate at the University of São Paulo, and is a Legal Assistant at Pinheiro Neto Advogados in São Paulo, Brazil.
*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.
