Litigation and Arbitration

Investment arbitration has not been without its critics in recent years. Following the Achmea decision, which it has been said drove a stake through the heart of investment arbitration in the European Union, this mechanism has prompted criticism and the Latin American context is not exception.The region has seen a few very important debates, of great interest to all the parties involved, on the subject of investment arbitration, including the use of discovery in investment arbitration, Ecuador's return to the ICSID Convention, and Colombia's success in investment disputes, all explained below.
The Andean Community Court of Justice (Tribunal de Justicia de la Comunidad Andina or TJCA) has clarified the cases in which arbitrators can request a “preliminary interpretation” (interpretación prejudicial) in the arbitration proceedings they conduct, where they are required to establish, create or apply a statutory principle for the interpretation of Andean legislation in order to settle a dispute submitted for arbitration. The TJCA issued this clarification in a decision handed down in proceeding 01-IP-2021, published in the Official Gazette of the Cartagena Agreement (Gaceta Oficial del Acuerdo de Cartagena) of May 6, 2021.
The Supreme Court has endorsed the bringing of direct action by the carrier against the main shipper, even if a court insolvency order has been issued on the intermediary that contracted it. In this judgment, delivered on March 3, 2021, the court reiterated the case law on direct action by the actual carrier against the shipper and the participants in the subcontracting chain.