Cultural Considerations in Advocacy: Spanish-Speaking Latin America

Latin America has managed to overcome several obstacles in developing and embracing commercial arbitration.^[2] In the 1990s, Mexico and other Latin American countries constitutionally recognised arbitration as a valid method of dispute resolution, as most of these countries adopted modern arbitration legislation^[3] and arbitration-related international treaties and conventions.^[4] The myth of ‘the hostility [of Latin America] towards international commercial arbitration can definitely be put to rest’.^[5] This is worthy of recognition, as countries from the region have civil law systems that, as explained below, differ greatly from international arbitration practice.

The evolving complexity of disputes in different Latin American market sectors, along with government lockdowns and other measures (including the temporary closure of courts) adopted during 2020 and 2021 to combat the pandemic, has highlighted the need for, and encouraged the use of, alternative dispute resolution (ADR) mechanisms such as commercial arbitration.^[6]

Parties have increasingly turned to ADR to solve their disputes. In that regard, new arbitration rules and protocols have been adopted in jurisdictions such as Ecuador, Brazil and Mexico for best practices born out of the pandemic limitations.^[7] The golden age of Latin American arbitrations may finally have arrived.

This chapter addresses several aspects of advocacy in Spanish-speaking Latin American countries, including effective advocacy in Latin America, ethics of counsel and arbitrators, written advocacy, oral advocacy, management of evidence and artificial intelligence (AI) in advocacy.

Effective advocacy in Latin America

In analysing effective advocacy, first it is necessary to define it. It may be difficult to ascribe a single meaning to advocacy, as it can be approached from different perspectives: some perceive it as a technique and others as the art of persuasion.^[8]

For example, Emmanuel Gaillard and Philippe Pinsolle defined advocacy as a choice-making process ‘in manner consistent with the strengths and weaknesses of the case at issue’,^[9] while Pierre-Yves Tschänz describes advocacy as ‘the preparation and presentation of a party’s case, in order to convince the arbitrators of the merits of the case’.^[10]

Advocacy is then a combination of choice-making, the identification of strengths and weaknesses of the case, strategy and excellent planning, requiring the broadest range of skills to persuade the arbitral tribunal. Advocacy is commonly assumed to pertain only to oral arguments or examination of witnesses; however, these assumptions are incorrect, as ‘[l]imiting advocacy to the oral argument of the advocate or indeed to the examination of witnesses does not do justice to this concept.’^[11]

In the case of Latin American arbitration, cultural implications are of special relevance as Latin America countries are mainly civil law jurisdictions. Effective advocacy requires a particular set of skills, some of which are addressed below.

Strategy design

A skilled counsel should identify, design and apply the best possible persuasion strategies. To do so, counsel should detect the most relevant elements of the claim (or defence) and the strengths and weaknesses of the case.

In designing the legal strategy, the ‘appointment of the arbitrator is a very calculated’^[12] and crucial decision. Therefore, it is important to identify and appoint an arbitrator who is familiar with the context of the case and preferably with the dispute market. It is also useful to ask the following question: has the arbitrator handled similar cases in the past, or written opinions on a related subject matter? To confirm these qualifications, counsel must investigate the past rulings of the arbitrator, if they are available. Unlike common law practitioners, civilian lawyers are unaccustomed to this practice.

Investigation

It is essential for a lawyer to develop skills related to the identification, compilation, review and organisation of the entire case and arbitration record.^[13] Cooperation from the client is crucial, as they are the one who knows the market and industry in question. Counsel must develop strong communication skills to obtain crucial information and unveil the true interests of the client.

Decision-making

Counsel must determine the course of the case by making certain decisions and considering the political, economic, market and legal interests that may influence the tribunal’s decision.

Counsel should be ‘aware of how arbitrators interpret the law [that] will constitute a road map for the counsel’s arguments and approaches’.^[14]Accordingly, it is important for counsel to identify: the legal tradition of each arbitrator; the religion, if any, of the arbitrators; the ideological preferences of the tribunal;^[15] and the language and style of each of the members of the arbitral tribunal.^[16]

Counsel must be aware that, unlike common law arbitrators, Latin American arbitrators tend to interpret the law by applying strict legal principles, rules and, in some specific cases, the customs and practices of the market in question.

Efficiency and flexibility

Efficiency will often be achieved by adapting best practices from both common law and civil law traditions, because ‘a skilled advocate . . . is one who can engage in and efficiently use the procedural mechanisms of both worlds’.^[17]

Flexibility can be accomplished by promoting the use of international guidelines and passing over certain formalities, without disregarding the validity of the seat of arbitration.

Within the region, compliance with procedural formalities is important. Meeting these, however, often results in rigid arbitration proceedings. To overcome this problem, Latin American countries have attempted to favour flexibility and efficiency over procedural formalism. As an example, in 2017, Mexico added to its Constitution a paragraph that commanded ‘the authorities [to] give priority to the solution of the conflict over procedural formalisms’.^[18]

Although commercial arbitration in the region has taken advantage of these principles, the concern about following procedural formalities remains. The region continues to struggle to eliminate these hurdles (which are intrinsic to civil law practice and second nature to civil law practitioners), aiming to erase from arbitration practice the formalist stamp of litigation practice.

Because current arbitration practice is closer to the practice of common law than civil law, arbitration practitioners in this region must be versatile enough to operate in both arenas. Practitioners must consider and adapt to the fact that, unlike in other jurisdictions, in Latin America the gap between litigation and arbitration is wide.

Ethics: counsel and arbitrators

Parties agree to arbitrate because it is in their case’s best interest, and they trust in the effectiveness of the proceeding and in the impartiality of the arbitrators. Loss of confidence in the arbitral tribunal and the proceedings could imperil the arbitration itself. Ethics are therefore fundamental for effective advocacy.

The existence of stereotypes regarding the ethics of Latin American judicial proceedings is undeniable. Sadly, a recent arbitration corruption case in Central America has confirmed these stereotypes.^[19] However, corruption is not the rule, as ethical standards within the Latin American arbitration community are ordinarily high.

The arbitration community is relatively small within the region. Therefore, reputation is the main asset of any practitioner who wishes to grow within the community. In the region, experience and high ethical standards are essential for maintaining a good reputation.

Although bar associations are, generally, not mandatory within Latin America,^[20] arbitration practitioners (especially arbitrators) follow and apply general ethics rules (soft law), as it is well known that ‘[a]rbitration requires a neutral and impartial climate [that] can only be achieved if all doubt regarding the integrity of the arbitrators has been dispelled’.^[21]

In consequence, practitioners aiming to excel within the Latin American arbitration community must bear in mind that ethical behaviour is essential.

Written advocacy: pleadings and evidence

Most of Latin America’s justice systems are situated in the civil law family. Contrary to common law systems, civil law systems rely heavily on written documentary material as opposed to oral testimony. That is why, as noted above, the civil law tradition is characterised by its emphasis on formalities. For example, Article 16 of the Mexican Constitution requires judicial resolutions to be supported and reasoned, requiring the judge to review and address any and all arguments submitted by the litigator.

Because of this, judicial resolutions are long and greatly detailed. Naturally, Latin American arbitrators tend to issue arbitral awards that are longer and more heavily detailed than the resolutions of common law arbitrators. Formalism, once again, comes into play. For example, procedural background commonly constitutes an extensive chapter of the award to demonstrate that due process has not been violated. Naturally, excessive detail and length increase the risk, if the award is under judicial review for set aside, for judicial review to be deeper and more complex.

However, Latin American arbitrators who participate in international commercial arbitration may depart from local rules^[22] to follow the international practice in which the arbitrator ‘is not bound to examine every and all arguments by the parties and answer them all’, allowing the award to be less extensive than those in which additional formalities must be met.

Moving to arbitration counsel, the effect of local judicial formalism seems to replicate itself in local arbitration practice: to avoid any right to be deemed waived, arbitration practitioners from the region tend to draft briefs or submissions that are both long and repetitive, and that include, in great detail, the background, arguments and evidence.

With respect to the taking of evidence, civil law’s judicial approach differs from that of common law by emphasising the burden of proof and the reliability of evidence, rather than searching for the truth.^[23] In civil law, the scope of requests and orders regarding the production of documents is commonly narrow.^[24] Discovery of documents ‘as practiced in the United States is vigorously rejected in the civil law world’,^[25] as it is perceived as an intrusion and invasion of privacy. Practitioners tend to oppose production of document requests most strongly when they are considered a ‘fishing expedition’.^[26] These oppositions (and subsequent replies) are increasingly longer and more detailed because of the aforementioned formalism, perceptions regarding invasion of privacy and the fact that Latin American practitioners are unaccustomed to this procedural stage.

Once again, the exception to this rule is found in the international commercial arena, where practitioners from the region draft and submit briefs, writs and document production requests that are more succinct.

In summary, one may expect formalism to take a role in the preparation and outcome of briefs, writs, document production requests and awards when the arbitration is local or when it takes place between Latin American parties. However, when the arbitration is international, even when the place of the arbitration is within Latin America, one must expect that the Latin American arbitrators or practitioners will not consider excessive local formalities.

Oral advocacy and management of evidence

Latin American arbitration practitioners from the civil law tradition may be unfamiliar with the oral tradition specific to common law litigation. The reason is that judicial proceedings in civil law countries are mostly (or at least were historically) written document-based proceedings, wherein judges would rather rule on the basis of the documentary evidence and written submissions filed by the parties. Judicial systems within the common law tradition, on the other hand, have long included both oral and written document stages as part of proceedings.^[27]

In consequence, oral skills such as storytelling, cross-examination and the use of visual aids and techniques for reading the room, were historically outside the teachings of law schools in Latin America. However, following amendments to commercial and civil legislation for national procedure,^[28] law schools in the region are now expected to include oral skills courses in their programmes. While the Latin American law community waits for younger generations schooled in oral advocacy to emerge, current lawyers gain their knowledge through trial and error.

In arbitration, Latin American practitioners obtain oral advocacy skills by researching, reading and experimenting. Theatre-like techniques are often applied by practitioners around the world and are used increasingly by lawyers from the region. The increasing use of visual aids is also notable within Latin American practice.^[29]

These skills are tested during arbitral hearings, when the examination and cross-examination of witnesses (fact and expert) takes place. The question of whether to examine or cross-examine should be dealt with case by case; however, in Latin America, written witness statements are more common than direct oral examination, for the many reasons explained in this chapter (formalism, a strong reliance on documents, etc.).

In relation to witness evidence, it comes as no surprise that in the civil law tradition, ‘witness testimony is de-emphasised in favor of documentary evidence’.^[30] It is often said that ‘witness testimony remains less significant in civil law litigation systems and, less markedly, in international arbitrations conducted among civil law parties and lawyers’.^[31] One relevant issue is the preparation of witnesses. While the preparation of witnesses (for direct and cross-examination) is common in international arbitration, civil law courts do not commonly allow for this, as the legitimacy of this practice remains in question. Naturally, and especially from the standpoint of civil law, the preparation of witnesses raises ethical concerns, being widely perceived as a technique used to influence the witness, corrupting his or her memory.^[32]

Furthermore, arbitral tribunals with a civil law context ‘tend to impose greater limits on cross-examination, both in terms of length of examination, scope of questions and counsel’s efforts to “control” a witness’.^[33]

When the arbitrators’ background lies within the civil law tradition, practitioners must pay special attention to the preparation of witnesses to avoid creating the perception that the witness has been influenced and corrupted. During cross-examination, it is not uncommon for the cross-examiner to ask a witness if they received any help in the preparation of their statement and in preparing for cross-examination.

Finally, with respect to closing statements, the reader must bear in mind that within the region, closing statements in arbitration proceedings commonly differ from those of civil law judicial proceedings. The former encompasses a high-level summary of the case’s main facts, and of the claims and relief sought (commonly addressing issues that arose during the hearing); whereas the latter includes a more detailed repetition of the case’s facts, claims and relief sought. These differences are reflected in the ability of a Latin American arbitration practitioner to prepare a closing statement that is succinct and on point.

AI and advocacy

The use of new technologies, including AI, in the management of arbitration and dispute resolution processes has become increasingly prevalent in Latin America. This trend has been accelerated by the covid-19 pandemic. New technologies, such as blockchain, are enhancing the effectiveness and efficiency of arbitration in Latin America^[34] and are being used in the submission of pleadings, motions and evidence and in hearings via videoconference.

The new tools derived from AI present an opportunity for arbitration in Latin America to differentiate itself further from the judicial system by offering a more personalised and efficient process according to the needs of each case. The advantage of arbitration in terms of this new technology is that the adoption of these instruments is based on the will of the parties as opposed to judicial procedures in which the adoption of new technologies depends on political will as it requires a legislative process.

It is essential for lawyers in Latin America to understand the scope and limitations of these instruments to ensure they use them correctly and responsibly to offer the best dispute resolution alternatives to clients, while retaining the essential elements of arbitration. However, the challenge for advocates in Latin America, especially in countries such as Mexico, will be to clearly and comprehensively document the willingness of parties to use these tools and establish their scope. Moreover, to enforce the outcome of arbitration before state courts, it is essential to respect the fundamental principles of the arbitration agreement and the process itself.

Another important issue to take into consideration, as the use of AI becomes increasingly prevalent in the legal field, is the need to protect the confidentiality of cases. While AI tools can significantly improve the efficiency of lawyers by supporting tasks such as drafting, researching and organising large volumes of documents, it is crucial to ensure that the information contained within these documents remains secure and confidential. It is important for lawyers to carefully evaluate and choose AI tools that have appropriate safeguards in place to protect sensitive information, and to implement protocols and procedures to ensure that confidential data is not compromised. Ultimately, the use of AI can be a powerful tool in enhancing legal services, but it must be done responsibly and with an eye towards maintaining client confidentiality.

Artificial intelligence can be a useful tool to support advocacy work among lawyers in Latin America, with its ability to quickly process large amounts of data and identify patterns, for example, AI can assist lawyers in reviewing case law and analyzing past court rulings to identify trends and patterns that can inform the advocacy strategies. Additionally, AI-powered legal research tools can help lawyers quickly access relevant information and streamline their research process. However, it is important to note that AI should not replace the human expertise and judgment of lawyers, rather, it should be viewed as a complementary tool that can enhance their work and improve the outcomes for their clients.^[35]

As a result, lawyers in Latin America will need to know how to use these instruments, their limitations and risks. Because companies in Latin America have already started using AI tools in their operations,^[36] it is likely that parties themselves will suggest that lawyers implement these mechanisms to resolve their disputes more efficiently, especially in ADR mechanisms such as arbitration in which the parties have the last word. Therefore, Latin American advocacy must adapt to this new reality as it revolutionises arbitration as an ADR mechanism.

Conclusion

Several jurisdictions in the region seem to be moving in the right direction by taking big steps towards further adopting and encouraging arbitration as an ADR mechanism. Latin American practitioners continue to grow within the region and internationally by overcoming the obstacles described in this chapter, in both investment and commercial arbitration, mostly through trial and error. For example, by June 2022, Latin America accounted for 28 per cent of cases registered with the International Centre for Settlement of Investment Disputes.^[37]

Due to the formalism attached to the civil law tradition of most Latin American jurisdictions, and because of the gap between arbitration practice (closer to common law) and civil law practice, it is common for practitioners from the region to face more obstacles in entering the arbitration world than common law practitioners do. Therefore, when an arbitration involves Latin American parties, or parties from other countries with similar legal traditions, the cultural considerations addressed in this chapter should be taken into account to ensure flexibility and efficiency.

As in the rest of the world, in Latin America technologies and digitisation tools such as blockchain and AI (for example, ChatGPT) are beginning to find their place within the practice of law. This is illustrated in a survey conducted in 2018 by Queen Mary University of London, in which 78 per cent of respondents ‘indicated that “AI” is a form of IT worth using more’.^[38] Therefore, the undeniable challenge for present-day advocacy is to ensure that AI is used efficiently and responsibly to improve the practice and advocacy of ADR mechanisms. The use of AI in the legal field offers great benefits. However, with great power comes greater responsibility, and lawyers must exercise caution in the face of confidentiality challenges that may arise. Moreover, they must employ AI tools in arbitration in such a way that judges recognise the validity of arbitration outcomes.

Notes