美国迈阿密国际商事仲裁法院:迈阿密成为拉丁美洲的首选仲裁地的另一个原因(英文版)
Miami rapidly is becoming the preferred venue for international
commercial arbitrations involving Latin American parties. This is
so not only because of Miami's geographical proximity to Latin
America, large pool of legal professionals with Spanish and
Portuguese language capabilities, and close cultural ties to the
region, but also because Florida, and particularly South Florida,
has become an arbitration-friendly jurisdiction. One example of
that is the existence of a specialized court to hear issues related
to international commercial arbitrations seated in Miami.
This Commentary provides an overview of Miami's
international commercial arbitration court, the types of cases the
court hears, and the benefits the court provides to parties who
choose Miami as the seat for their international commercial
arbitrations.
Overview of Miami's International Commercial Arbitration Court
On December 3, 2013, the Miami International Commercial
Arbitration Court ("MICAC") was created1 in
response to a proposal from a group of international arbitration
practitioners in Miami who felt a specialized court would promote
Miami as a preferred venue for international commercial
arbitration.2 The court is part of Florida's state
court system and falls within the already specialist Complex
Business Litigation ("CBL") division of the Eleventh
Judicial Circuit.3 The MICAC is one of only three courts
in the United States specializing in international commercial
arbitration matters—the other two are in New York and
Atlanta.
The conceptual driving force behind the decision to create the
MICAC was the recognition that international commercial arbitration
is "a specialized area of law" and that "designating
particular trained judges to hear all international
commercial arbitration matters will foster greater judicial
expertise and understanding of this area of the law, will lead to
more uniformity in legal decisions, and help establish a consistent
body of case law...."4 To this end, the MICAC
judges were selected based on (i) their experience handling complex
commercial matters and (ii) their completion of specific judicial
education or training in the handling of international commercial
arbitration matters.5 In particular, the initial five
judges selected to hear MICAC cases—including Judge John
Thornton, who heads the CBL division—received training at the
University of Miami's International Arbitration
Institute.6
Types of Cases the MICAC is Empowered to Hear
The MICAC judges are empowered to hear matters arising under the
Florida International Commercial Arbitration Act
("FICAA")7 or the Federal Arbitration Act
("FAA")8—except matters arising out of a
relationship that is entirely between U.S. citizens, unless that
relationship involves property located overseas, envisages
performance or enforcement abroad, or has some reasonable relation
to one or more foreign states.9 The key function of the
MICAC under the FICAA is to provide assistance to an arbitral
tribunal where the state of Florida is the seat of the
arbitration.
Thus, parties who have chosen Florida as the seat of their
arbitration may turn to the MICAC, among other things, to determine
the existence and validity of an arbitration agreement, to obtain
interim measures, to secure the appointment or removal of
arbitrators, and to hear applications to set aside, recognize, or
enforce awards.10 Although the FICAA applies primarily
when the seat of the arbitration is in Florida,11 there
are notable exceptions allowing parties who have not designated
Florida as the seat access to the MICAC. These include where they
seek the assistance of the court to: pronounce on the validity of
an arbitration agreement; grant, enforce, or reformulate interim
measures; and recognize or enforce an award.12
Although the MICAC is relatively new and, therefore, has yet to
hear a large number of cases, the court already has demonstrated
its proficiency in handling international commercial arbitration
matters. In March 2015, Judge Thornton affirmed the validity of an
arbitration agreement between Samsung, a South Korean electronics
manufacturer, and CT Miami LLC ("CT"), a Miami-based
Samsung phone distributor.13
In this case, CT failed to pay several past-due invoices for cell
phones that it had purchased from Samsung.14 Samsung
demanded arbitration, citing the arbitration clause in their
distribution agreement. CT filed a complaint in the MICAC alleging
that Samsung breached its agreement to provide price protection for
CT and seeking to stay the arbitration.15 CT argued that
the arbitration clause was not valid since Samsung never signed the
distribution agreement that contained the clause.16
Judge Thornton conducted an expedited hearing less than three
months after CT filed its complaint. A week later, he ruled that
the arbitration clause was controlling and ordered the parties to
arbitrate the dispute.17 On appeal, Florida's Third
District Court of Appeal upheld Judge Thornton's
decision,18 signalling to future parties that Miami is
capable of promptly and efficiently handling international
arbitration issues through the MICAC.
Judge Thornton's decision demonstrates that the MICAC is ready
and able to make knowledgeable decisions in aid of international
arbitration in an expedited manner. Like Miami, New York and
Atlanta also have assigned international arbitration-related
matters to a specialist court or judge, reinforcing the value these
specialized courts bring to the practice of international
arbitration.19 Although Atlanta's specialized court
was created only recently in June 201520 and has yet to
be tested,21 New York has been able to demonstrate
convincing benefits from its specialized court.
In September 2013, the New York Supreme Court designated a single
judge, Justice Charles Ramos, to hear all international arbitration
disputes for cases filed in New York County's Commercial
Division court.22 Within a year of his appointment,
Justice Ramos already had heard seven international arbitration
cases. In three of those cases, Justice Ramos confirmed the
underlying international arbitration awards.23 In
another case, he compelled the parties to arbitrate with the
American Arbitration Association ("AAA") under the ICC
Rules,24 as the parties had provided in the underlying
arbitration clause. Justice Ramos ordered that if the AAA was
unable or unwilling to administer the arbitration in accordance
with ICC rules, then the parties would have to arbitrate under AAA
rules, thereby ensuring that the parties efficiently resolved their
international dispute through arbitration, rather than through
drawn-out litigation over the validity of the arbitration
clause.
Miami's International Commercial Arbitration Court Makes Miami an Ideal Venue for International Commercial Arbitration Relating to Latin America
The combination of the MICAC's specialized expertise and
expeditious resolution of international arbitration-related
disputes, along with Miami's geographical and cultural
proximity to Latin America, make Miami an ideal venue for Latin
American disputes.
One of the key benefits of the MICAC is the specialized training in
international commercial arbitration that the assigned judges
receive. Few federal judges, and perhaps even fewer state court
judges, are familiar with the nuances of international commercial
arbitration. As a consequence, parties in international arbitration
who seek relief in federal or state court often face judges with
little or no experience in this specialized area of law. The
education prerequisite for the MICAC judges, however, greatly
reduces this risk and ensures consistency and predictability of the
process and decisions.
Another important benefit of the MICAC is its increased speed and
efficiency as compared to other courts, as a result of its case
management mechanisms. Cases are assigned to the MICAC once a party
submits a notice to the court indicating that its case qualifies by
(i) either arising under the FICAA or the FAA and (ii) involving a
requisite international element.25 This allows parties
to avoid being placed at the back of the main and already crowded
CBL docket. Once on the MICAC's docket, cases are heard
expeditiously, as demonstrated by Judge Thornton's decision in
the CT matter, where an expedited hearing was held less than three
months after CT filed its action and Judge Thornton rendered his
decision a week later. This expedited relief allows parties to
achieve the key traditional goals of international commercial
arbitration: quick and cost-effective resolution of disputes.
Finally, because of its close geographical, linguistic, and
cultural proximity to the region, Miami is a natural hub for Latin
America, including Latin America-related disputes. Significantly,
many of the top-tier international law firms have established and
expanded their Latin American practice, including their
international arbitration practice, from Miami. Latin
American-qualified attorneys also are able to participate in
international arbitrations without having to be barred in Florida,
thereby allowing them to service their Latin American clients in
Miami,26 although they would have to work with local
counsel to appear before the MICAC. The expansion of the legal
profession, enriched with bilingual capability, augurs well for the
choice of Miami as a seat for arbitration and for the MICAC's
resolution of international commercial arbitration-related
disputes.
In fact, between 2011 and 2014, the number of international
arbitrations seated in Miami under the AAA's International
Centre for Dispute Resolution has doubled to 156.27 Only
time will reveal the extent of the MICAC's impact in making
Miami a seat for international commercial arbitration. However, the
fact that Miami recently was chosen as the seat of arbitration by
the parties involved in $1.6 billion in disputes arising from the
expansion of the Panama Canal28 certainly is an
endorsement of all that Miami has to offer as a preferred hub for
international arbitration.
Footnotes
1 The Eleventh Judicial Circuit, Miami-Dade County, Florida, Administrative Order No. 13-08 (hereinafter "Order No. 13-08").
2 See Eleventh Judicial Circuit Establishes International Commercial Court, Media Advisory, Dec. 17, 2013.
3 See id.
4 Order No. 13-08, Preamble (emphasis in original).
5 Id. ? 2.
6 Carolina Bolado, "Miami Builds International Arbitration Chops with new Court," Law360, Feb. 16, 2016.
7 § 684 et seq., Fla. Stat. (2012). The FICAA is modelled after the UNCITRAL's Model Law on Commercial Arbitration. Jose M. Ferrer, "A New Destination for International Arbitration," Law360, Apr. 3, 2014.
8 9 U.S.C. §1 et seq.
9 Order No. 13-08, § 1(b).
10 § 684 et seq., Fla. Stat. (2012).
11 Id. § 684.0002(2).
12 Id.; see also id. §§ 684.0009, 684001, 6840026, 6840027, 6840028, 6840047, 6840048.
13 CT Miami, LLC v. Samsung Elecs. Latinoamerica Miami, Inc., No. 3D15-641, 2015 WL 5247160, at *3-*4 (Fla. Dist. Ct. App. Sept. 9, 2015).
14 Id. at *2.
15 Id.
16 Id.
17 Id. at *3–*4.
18 Id. at *10.
19 The MICAC is second only to a similar court in New York. Sasha Funk Ganai, "Florida: A Bright Destination for International Arbitration," Lexology, Oct. 3, 2014. In May 2015, as part of an effort to make Atlanta an international arbitration hub, the Supreme Court of Georgia created a specialized court within its business division as well, although it is unclear whether specialized judges will be assigned to that court. See Lacy Yong, "Atlanta Creates Specialist Arbitration Court," globalarbitrationreview.com, July 28, 2015 (subscription required).
20 Atlanta designated the Superior Court of Fulton County's Business Division ("FCBD") to hear cases involving international commercial arbitration issues. Media Release, Fulton Co. (Ga.), "Superior Court of Fulton County's Business Court Division is Now Home to International Commercial Arbitration" (June 17, 2015). Like Miami's CBL, the FCBD handles complex commercial disputes and resolves disputes more quickly than a non-specialized court. Id.
21 Atlanta hopes that the FCBD will become known as a hospitable jurisdiction for the enforcement of international arbitration awards. See Press Release, Ga. State Univ. College of Law, "Fulton Business Court Rule Change Could Aid Arbitration Center" (July 28, 2015). The FCBD is partnering with Georgia State University College of Law, which houses the Atlanta Center for International Arbitration and Mediation, to strengthen its expertise in these issues. Id.
22 Administrative Order of Chief Admin. Judge of Cts. (NY) AO/224/13, Sept. 16, 2013.
23 Aníbal Sabatar & Mark Stadnyk, "New York's International Arbitration Judge, One Year Later," N.Y.L.J., Nov. 17, 2014.
24 Id.
25 Order No. 13-08, § 1(b).
26 Rules Regulating The Fl. Bar, Rule 1-3.11 (2016).
27 Monika Gonzalez Mesa, "What's Not to Like? Miami as Arbitration Seat," Daily Business Review, Feb. 11, 2016.
28 See Elizabeth Olson, "Cities Compete to be the Arena for Global Legal Disputes," N.Y. Times, Sept. 11, 2014; Sasha Funk Ganai, "Florida: A Bright Destination for International Arbitration," Lexology, Oct. 3, 2014.
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