Jonathan C. Hamilton, Comments in “The New Financial Capital of the World,” LatinLawyer (2009)

In the midst of the global economic recession, LatinLawyer interviewed leading lawyers in Washington, DC, on the city’s emergence as the “new financial capital of the world.” These excerpts are comments by White & Case partner Jonathan C. Hamilton.

• The growth of arbitration in the region depends not only on large international matters, but also the growth of arbitration locally. Peru, for example, adopted a new arbitration law in 1996 and has already replaced it with a 2008 1aw; the government uses arbitration for domestic and international disputes; and the use of arbitration at local centres in Lima has really grown, all of which is really important to the acceptance of arbitration generally. There’s a role for each type of law firm - local and international - to play in these disputes.

• White & Case opened in Mexico in 1991 and in Brazil in 1997, which gives us nearly two decades' worth of on the ground experience with multinational Latin companies in the two biggest economies. Those kinds of relationships made a difference for us in all economic times, and spin off other types of work – for example, in Mexico restructuring has for us been very important. The same is the case with disputes - I was based in our Mexico office for three years from 2000 and the extent of the wave of Latin arbitration, which is very clear in hindsight, was perhaps not so obvious at the time - and those relationships on the ground have really made a difference for us.

• With a large infrastructure project; a number of different types of disputes may be generated – treaty and commercial cases, and litigation, and in a number of jurisdictions - so there are many diverse ways you end up dealing with changed circumstances in the region.

• There are obvious policy fault lines within South America. We can all look back over almost 200 years to see how cycles of nationalisation and privatisation have played out, and in the long run isolation from the foreign markets has not tended to work very well.

• One comment is worth highlighting again - when you deal with government officials in some countries in the region, the level of sophistication within government and their ministries is really noteworthy. I think that has been very important in how some countries in the region are confronting the economic crisis.

• Many of the things we are talking about in terms of the Washington nexus to our work relate to the number of investment treaties that were ratified in the 1990s - at the start of that decade there were zero, now there are upwards of 400 investment treaties with Latin American states as parties. Now we confront the exhaustion of that process, and there's only so much further that can go front a north-south perspective. Now what we are seeing is movement in the south- south direction, with respect both to treaties and possible disputes. The US agreements with Colombia and Panama remain, of course, an important and missing piece of that framework of investment agreements.

As a view from Washington, there are obvious policy fault lines within South America. We can look back over almost 200 years to see how cycles of nationalisation and privatisation have played out, and in the long run isolation from the foreign markets has not tended to work very well.

Jonathan C. Hamilton