Auteur : DÁVALOS FERNÁNDEZ Rodolfo

Summary:

I.- The Organization for the Harmonization of Business Law in the Caribbean (OHADAC).
II. - Some considerations on the present situation of Arbitration in Latin America and the Caribbean.
III. - Investment Arbitration. Dispute resolution within the ALBA framework.
IV. – The seat of Arbitration: its importance.
V. - A place for Arbitration. Elements determining the seat.
VI. - The OHADAC Court of Arbitration.

1. - The Organization for the Harmonization of Business Law in the Caribbean (OHADAC).

The Organization for the Harmonization of Business Law in the Caribbean (OHADAC, by its French abbreviations), is a project inspired by regional experiences of legal harmonization, especially by those of its similar, the Organization for the Harmonization of Business Law in Africa (OHADA), as well as by other regional processes of integration. It has its origin in the Declaration adopted in the conference of Pointe a Pitre, Guadalupe, on May 15th 2007. The Second Conference celebrated in Port Prince, Haiti (June 17th and 18th 2008), drew up a list of legal fields to be developed, among them, international commercial Arbitration.

The OHADAC departs from the criteria that the Caribbean is a mosaic of States where different legal orders coexist, that is to say, domestic legal systems originating from different families of law, like Common Law and the Romano-Germanic system or family (also called Roman French). This legacy was received by these Caribbean States from the old metropolis, whether they be English-speaking countries or of European continental Law (Spanish, French and Dutch). It created differences within their internal orders, demanding rules of common interpretation in order to support the flows of commerce and investment within the region. It is evident that the Latin American and Caribbean countries urgently need to bring their mutual and common interest relationships closer, through processes of legal harmonization that contribute to reinforce the international position of the region in international forums regarding the unification and harmonization of both, Private International and Business Laws. It is necessary to take into consideration that regional integration processes constitute a way to move forward towards an universal process of globalization properly balanced and respectful of the interests of all the States integrating the International Legal Community; and, on the other hand, it must be also noticed that the harmonization of Business Law is an effective instrument for providing the international and regional trade with greater legal certainty and for reducing their costs, fostering the commercial exchanges, the development of the national economies and their progressive integration.

Based on these premises OHADAC has already taken the first steps with the Latin American and Caribbean Congress celebrated in Havana in June 2010, emphasizing the promotion of Arbitration, as a paradigmatic institution providing support to international trade, and as a fundamental pillar of the initial development of the process of harmonization of Business Law in the Latin American and Caribbean region.

The Congress held in Havana, culminated in a Declaration encouraging the OHADAC to promote and design an institutional system of international commercial arbitration, with a modern and efficient regulation, that takes into consideration the most recent comparative law contributions, fills their gaps and be oriented towards an arbitration procedure which cares about party autonomy, respects State sovereignty, allows efficient arbitrators’ performance and guarantees arbitral awards improving the quality of justice, legal certainty and effectiveness of their decisions.

The Declaration also proposes the promotion of comparative law studies within the Caribbean, which would allow these countries to have a mutual knowledge of their respective legal systems, facilitating in that way the harmonization of business Law, and the introduction into their agenda of a catalogue of substantive law matters, whose harmonization is considered advisable to reach the legal integration objective, mainly regarding commercial contracts, international transportation, commercial registries, commercial companies, guarantees and payment mechanisms, industrial property rights, insolvency law, and cross-border enforcement of debts.

All this, of course, as expressed in the Declaration, with absolute respect for the sovereignty of States, for culture diversity, for the values and political conceptions, in search of a loyal cooperation making feasible the legal harmonization whose last aim, and main common interest, is to promote the progress and the economic growth of the Caribbean countries, as well as the conditions of life of the Caribbean and Latin American Community.