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International Arbitration Yearbook

Baker McKenzie International Arbitration Yearbook 2019-2020 – Venezuela

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VENEZUELA

Eugenio Hernandez-Breton, Maria Eugenia Salazar, Gabriel De Jesus, Hector Martinez, Maria Alejandra Ruiz, Maria Victoria Diaz.

A. LEGISLATION AND RULES

A.1 Legislation

International arbitration in Venezuela continues to be governed by the Commercial Arbitration Law, published in the Official Gazette of the Bolivarian Republic of Venezuela No. 36.430 of 7 April 1998, to which no legislative amendments have been made since, and by several international treaties on the matter such as the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 1958), the Inter-American Convention on International Commercial Arbitration (Panamá, 1975), and the Inter-American Convention on Extraterritorial Validity of Foreign Judgments and Arbitral Awards (Montevideo, 1979).[1]

Additionally, International Investment Arbitration in Venezuela continues to be governed by the Constitution of 1999, Constitutional Law on Foreign Investments of 2017 and a significant number of Bilateral Investment Treaties (BITs), to which no legislative amendment has been made.

A.2 Institutions, Rules and Infrastructure

In Venezuela, there are two main arbitration centers: the Caracas Chamber of Commerce Arbitration Center (CCAC) and the Business Center for Conciliation and Arbitration

 (CEDCA). Both have their head offices in Caracas and do not have regional offices in the rest of the country. However, there are other organizations at the regional level that provide support to CCAC and CEDCA in case it is necessary to administer some arbitration outside Caracas.

The current Regulation of the CCAC was issued on 1 February 2013 and modified in 2018 in order to adjust for the administrative and arbitrators’ fees for procedures that implied a payment in foreign currency. Amendments are currently in force and have not been modified recently.

The first Regulation of CEDCA was issued on 25 March 1998 and modified in 2013. This Regulation is currently in force and has not been yet modified, despite the recently prepared draft new Regulation that expects to give higher relevance to conciliation. Additionally, CEDCA has an appendix of costs and fees that was recently modified in 2020.

Furthermore, the CEDCA is planning to develop the use of dispute boards as an alternative dispute resolution mechanism for the construction sector or any other area that involves the implementation of complex techniques. Therefore, in December 2019 it launched a new Dispute Board Regulation. Dispute boards are a project-specific dispute resolution process that aims to maintain good relationships between the parties. They do this by appointing a panel of independent experts to assist in resolving issues before they escalate to formal dispute resolution channels such as litigation or arbitration. To date, they have been relatively little used in Venezuela.

International Arbitration Institutions do not have a presence in Venezuela. However, local Arbitration Institutions (CEDCA and CCAC) are working to provide dispute resolution services to International Arbitration Institutions in the near future.

B. CASES

B.1 Appeal annulment of an arbitral award

The Seventh Superior Civil Court of Caracas, by means of a ruling of 23 September 2019, ratified that the confidential nature of arbitration proceedings established in article 42 of the Commercial Arbitration Law only applies to arbitration proceedings and not to a judicial proceeding related to arbitration proceedings (i.e., annulment proceedings).

B.2 Exequatur procedure to declare the enforceability of judgments of foreign authorities before the Civil Chamber of the Supreme Court of Justice.

The Civil Chamber of the Supreme Court of Justice rendered ruling No. 187 on 30 May 2019, declaring the non-applicability of the Inter-American conventions signed under the auspices of the Organization of American States on the premise that “it is no less true that the Bolivarian Republic of Venezuela formalized its definitive withdrawal from the Organization of American States by means of a letter dated 27 April 2019 (sic.), addressed to that organization, so that consequently the Inter-American Convention on the Extraterritorial Effectiveness of Foreign Judgments and Arbitral Awards, signed in the city of Montevideo, Uruguay in 1979, (…), ceased to have effect in our country.”

The Social Chamber of the Supreme Court of Justice rendered a similar opinion in ruling No. 0416 of 5 December 2019[2].

[1] See, however, under B.2 below.

[2] http://historico.tsj.gob.ve/decisiones/scs/diciembre/308559-0416-51219-2019-17-926.HTML

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Author

Eugenio Hernández-Bretón is an of-counsel in Baker McKenzie’s Caracas office. His practice areas are energy and natural resources, international and domestic arbitration, and litigation. He has acted as arbitrator and appeared as counsel and expert witness on issues in international law, private international, and Venezuelan law.

Author

Maria Eugenia Salazar is a partner in Baker McKenzie’s Caracas office. She advises on international arbitration and regulatory matters, with a focus on telecommunication and mining, and oil and gas. She has experience with local regulatory bodies, state-owned companies, and litigating before the Venezuelan Supreme Court and tax courts. She has also been recognized by Chambers Latin America as a leading lawyer in her field.

Author

Gabriel De Jesús is a partner in Baker McKenzie's Caracas office. He focuses on dispute resolution and commercial litigation and has been recognized by Chambers Latin America as a leading lawyer in the field. He is an associate litigation professor at the Universidad Monteávila and Universidad Metropolitana in Caracas.

Author

Héctor Martínez is a senior associate in Baker McKenzie´s Caracas office. He focuses on investment protection and investment arbitration procedures under the CIADI and CNUDMI Rules. He has participated in arbitration procedures representing foreign companies before CIADI and CNUDMI tribunals.

Author

María Alejandra Ruiz is a Mid-Level associate in Baker McKenzie's Caracas office. She focuses on dispute resolution and commercial litigation and has been recognized by Legal 500 as a Rising Star in the field. She has extensive experience in the preparation and follow-up of litigation and arbitration matters. She is also an associate litigation professor at the Universidad Monteávila and has been recognized by Chambers and Partners in the category of “Diversity & Inclusion Future Leader (South America)".

Author

Maria Victoria Diaz is a mid-level associate in Baker McKenzie´s Caracas, her practice areas are regulatory matters and investment arbitration.

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