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 on 7 April 1998, to which no legislative amendment has been made since.
In addition, Venezuela is a contracting state to a number of arbitration treaties such as the 1911 Caracas Convention, the 1958 New York Arbitration Convention, the 1975 Panama Arbitration Convention, and the 1979 Montevideo Convention on the Extraterritorial Effect of Foreign Judgments and Awards, and to more than 20 Bilateral Investment Treaties (BIT) that in some cases set forth alternative dispute resolution mechanisms, whereby a foreign investor whose rights under the BIT have been violated by Venezuela could have recourse to international arbitration, often under the auspices of the International Centre for Settlement of Investment Disputes (ICSID) or by an ad hoc arbitral tribunal under the UNCITRAL arbitration rules, rather than suing before Venezuelan courts.
The Business Center for Conciliation and Arbitration (CEDCA) and the Arbitration Center of the Caracas Chamber (CACC) offer users the possibility to solve their controversies through electronic means allowing them to present their requests and writings, as well as carry out the hearings, through electronic means. To regulate this matter, the CEDCA amended their Rules for Arbitration and Conciliation and CACC dictated Rules for the handling of procedures through electronic means. Also, the recently created Maracaibo Chamber Arbitration and Mediation Center (CACCM) allows procedures using electronic means. Furthermore, rules for dispute board for construction projects were issued in 2019 by CEDCA.
A.2 Institutions, rules and infrastructure
In Venezuela, there are three arbitration centers. Two of the centers are in Caracas (the CACC and the CEDCA), and one is in the city of Maracaibo (the recently created CACCM).
On 1 February 2013, the current Regulation of the CACC came into force, which was modified in 2018 in order to adjust for the administrative fees and the arbitrators’ fees for procedures that implied a payment in foreign currency. The amendment is currently in force and has not been modified recently. On 16 July 2020, due to the COVID-19 pandemic, the Directive Board of the CACC approved a new regulation for online procedures in order to establish secure, effective and quick communication between the parties, the arbitrator and everyone involved.
On 25 March 1998, the first Regulation of CEDCA came into force. The 2013 Regulation was modified on 19 February 2020 and on 13 May 13 2020 due to the pandemic, the center published a guide in order to include the possibility of solving controversies through electronic means.
Venezuela denounced the ICSID Convention on 24 January 2012, effective on 25 July 2012, which now renders ICSID unavailable to foreign investors. However, the ICSID additional facility and ad hoc arbitral tribunal under the UNCITRAL arbitration rules remains as alternative dispute resolution mechanisms under the Venezuelan BITs.
B. CASES
B.1 BANCO ACTIVO, BANCO UNIVERSAL CA v. CENTRO EMPRESARIAL DE CONCILIACIÓN Y ARBITRAJE (CEDCA)
The Civil Cassation Chamber of the Supreme Tribunal of Justice ratified the criteria on the inadmissibility of the extraordinary appeal in cassation against the decision issued by a superior court that decided the petition for the nullity of the arbitral award (Decision N° 342 of 12 August 2022).
In its reasoning, the Civil Cassation Chamber stated that judgments issued by superior courts when deciding petitions for annulment of awards do not constitute appellate judgments, because these courts hear the case in just one and sole instance in accordance with the provisions of the Commercial Arbitration Law, therefore they cannot be treated as a second instance decision, rendered on the occasion of the resolution of judicial conflicts, and this in no way contravenes the principle of double instance.
B.2 LONGREEF ANNULMENT DECISION
On 27 July 2022, an ICSID Annulment Committee rendered its decision in favor of Longreef Investment AVV, a Dutch company. Longreef was the sole shareholder of two Venezuelan subsidiaries – Café Fama de América CA and Fama de América SA – that were illegally expropriated by the authorities of the Bolivarian Republic of Venezuela in November 2009, without due process and proper compensation in favor of Longreef. The Annulment Committee rejected Venezuela’s application “in its entirety” and granted Longreef over USD 2.5 million in costs. Longreef filed for arbitration against Venezuela in 2011, and in 2017 the tribunal issued a final award in favor of Longreef, worth nearly USD 83 million. Venezuela failed to comply and filed for annulment to the ICSID in 2018.
