Current News & Events
October 2009
“International Commercial trials could be resolved in the country”
Daniel Chacón
This e-mail address is being protected from spambots. You need JavaScript enabled to view it
Commerce generates litigations, and the resolution of those conflicts means business for legal specialists.
Our country holds a good name before the world, but it can’t be exploited because of the inexistence of a law that is compatible with the international regulations to attract commercial fights into the country.
This is trying to be reversed. The International Conciliation and Arbitration Center (CICA) of the American Chamber of Commerce (Amcham) has a draft ready and everything now depends on political support. This would be a juridical security factor for the investments that arrive to the country. This would also potentially create a new business: the one of converting our territory in the base of appeals that are characteristic of international commerce.
In that sense, the matter was placed in front of the Justice Ministry last august. They answered with interest regarding the viability to reform this juridical frame, which’s draft has been directed by David Gutiérrez, CICA president and funding partner of BLP Abogados.
What do we loose with the setback that we have in a topic such as arbitration?
We loose legal, commercial and political positioning. A country with the international reputation that Costa Rica has, cannot have an arbitrarial legislation that un-motivates international arbitration.
What limitations do we have without this reform?
Even if we have a legal frame, this sadly does not include another series of normative principles that are contained in the Model Law, which are particularly important in order for Costa Rica to be able to be the base of international arbitration. Without this reform, our legislation will only limit itself to local arbitrage.
What type of reforms do you find necessary in order to have a positive outcome with the international model?
We must opt towards the modernization of the Arbitration Law or adoption of an International Arbitration Law. The best is to adopt the Model Law that is known worldwide and contains modern rules that reflect the current practices of commerce and international arbitration. Also, local laws can contain imperative dispositions that do not adjust themselves to the arbitrarial agreement signed between the parts.
And why not accept local arbitration?
Because it is very expensive, and it is not very practical or even impossible, for foreign counterparts to acquire complete and precise information about diverse laws and local arbitrage. On the other hand, insecurity concerning the local law can negatively affect the election of the place of arbitrage.
In what does the country benefit itself if chosen to be the base of International arbitration?
In a lot of ways, especially because of the recognition that the country would receive about its political and juridical security. We’d have companies handling their controversies in our country, which generates economical, professional and touristic activity. Costa Rica must promote itself as a regional international arbitrage center, not only in Central America, but in Latin America as well.
Is there a draft available for the initiative that might be presented before congress?
In the frame of the celebration of the 10th anniversary of Cica, which took place in August, Hernando París announced the creation of a commission that would dedicate itself to taking the necessary actions to approve the legislation in favor of commercial and international arbitrage in Costa Rica. The commission was formed, it worked and fortunately the project draft is in its final stage. The support of the Minister and the experience of the members of the commission has been fundamental to get to where we are.
Why is this the proper time to move ahead in this subject?
Because a known arbitrage center in Latin America that attracts the majority of the controversies in the region does not exist. These regional centers do exist in other parts of the world. For example, in Asia, the Hong Kong International Arbitration center had 448 international cases registered in 2007, while the Singapore International Arbitration Center has 70 international cases registered that same year.
How relevant have arbitration cases gotten in the middle of globalization?
The number of controversies submitted to arbitrage that involve Latin American counterparts has grown. The statistics of the International Chamber of Commerce demonstrate that there was an increase of more than 100% in the Latin American parts involvement between 1998 and 2007, most of which came from Brazil, México, Argentina, Chile, Panamá and Colombia. With the adequate legal conditions Costa Rica could attract controversies with Latin American connections whose parts are looking for a neutral forum to address to.
What areas will vary conveniently and which would lose?
There will be a number of areas that could benefit themselves with their participation in International arbitrage. Local professionals will need to be hired in law and in other technical subjects such as accountancy, engineering and environment just to name a few. Likewise, the established arbitration centers will probably witness a positive impact because foreign companies will utilize their services. I do not consider that there are areas that could have loses, or that could have a negative impact.
Why is it that if in appearance this seems like a necessary project, we have more that 10 years of delay in this normative?
Ideally, the 7727 Law should have regulated the commercial international arbitrage topic. But because it was a new figure to our country, it generated certain level of anti trust that has slowly been minimized in throughout the last 10 years of its operation.
What arguments motivate CICA and Amcham to impulse this change?
The Cica is the best positioned center in the country to be named as an international arbitrage base. The Amcham membership includes 80% of the foreign investment in the country and almost 80% of the exportation companies. Cica is also a part of the Amcham network in Latin America which has its own arbitrage centers. Through international contacts and natural alliances, the Cica is positioned and prepared to administrate international arbitrage in Costa Rica.
Article from La República.com.
|
