By: Thaís Amaral Dourado
1. Introduction
Startups are not only about interplanetary trips and video game engineering. Well, they are about it too. These projects are precisely what the American unicorn startup companies SpaceX and Epic Games have been working on. SpaceX was valued at US$33.3 billion in 2019[1] and Epic Games at almost US$15 billion in 2018.[2] Therefore, startups are about money and technology development, which have been the two gears moving the world, at least during the last decades.
The Latin American tech startup scenario is likewise promising. According to the Latin American Startup Directory (LAVCA)[3], in 2017, venture capital investment in technology in Latin America exceeded US$1b. In 2018, three Latin American startups surpassed US$1b valuations: 99[4], Nubank[5], and PagSeguro[6], all Brazilian companies.
Startup disputes can vary in complexity from basic contract disputes to billion-dollar transactions, among other conflicts. Gympass[7] and Quintoandar[8], two Brazilian unicorns[9], for example, have included an arbitration agreement in their Terms and Conditions of Use. Recently, Uber threatened to take a dispute with Colombia for damages due to the suspension of its transportation service in the country to international arbitration under the US-Colombia Free-Trade Agreement. This agreement provides for both International Centre for Settlement of Investment Disputes (ICSID) and United Nations Commission on International Trade Law (UNCITRAL) arbitration[10]. Uber was sold for US$19 million in 2007 when it was a startup, and last year the company generated US$3.8 billion in revenues for the first nine months of 2019. [11]
As technology and innovation develop, the businesses become more global, and startups are likely entering into cross-borders agreements not only with customers and employees, but with contractors, business partners, and stakeholders. This article focuses on business-to-business (B2B) disputes. Because litigation is based on standardized rules, laws, and public proceedings which are not confidential and that do not change as fast as technology does, it tends to impede and seriously slow down business and product advancement, which is often lethal to startups when competitors which are unimpeded can take advantage. Speed is the name of the game, especially for tech startups.
Thus, including arbitration clauses in startup B2B agreements is an important initiative for these companies to protect themselves. However, there are very few arbitral institutions specialized in technology disputes, especially in Latin American countries. Considering this scenario, Section 2 of this article will provide an overview of the arbitration of technology and technology-related business disputes in Latin America. Section 3 will analyze the pros and cons of tech startups using arbitration to solve conflicts. Finally, Section 4 will establish the most desirable characteristics for Latin American arbitral institutions specialized in new technology disputes.
2. Sector
There are a lot of different definitions for startup companies. Some of them are completely abstract, as the one given by Adora Cheung, co-founder, and CEO of the defunct Homejoy[12], an online platform to connect customers with home services providers. According to her, “Startup is a state of mind.”[13] The Cambridge Dictionary oversimplifies the definition of startup describing it as “a small business that has just been started.”[14] More specifically, a startup is a company, usually in the early stage of operations, ran by an entrepreneur to pursue, develop, and/or endorse a scalable business model.
Usually, startups adapt and/or create technology to resolve problems and challenges. A geographic reference for tech startups is the Silicon Valley, which was a startup itself by 1950. Nowadays, Silicon Valley is the principal place of business of the biggest tech companies in the world, such as Apple, Facebook, Google, Adobe, and Oracle. [15]
The terms “Latin America” and “technology” were not used in the same sentence very often, especially before the 2010s. After the lost decade of the 1980s, Latin America faced a financial liberalization triggered by the 1982–89 debt crisis, and, in the 1990s, the continent became an experimental lab of economic policies. This financial openness was crucial for Latin American countries to be deemed as emerging economies and to be able to sophisticate their traditional industries, focused on commodities exports. In the early 2010s, the region was still riding high from the 2000s’ commodities boom. According to The World Bank statistics, Latin America & the Caribbean’s annual Gross Domestic Product[16] growth in 2009 was -1.882% and 5.842% in 2010. [17]
Countries such as Colombia, Argentina, and Mexico used to be deemed dangerous, unstable, and with inadequate infrastructure by the international community. Nonetheless, government[18] and private initiatives[19], along with the irresistible globalization, concurred to get Latin American nations involved in the technology race and to produce first-world tech talents and businesses.
Nowadays, Latin American countries demand the title of “Latin American Silicon Valley.” Start-Up Chile (SUP), the public startup accelerator launched by the Chilean government, is one of the top startup accelerators in the world (across both private and public accelerators)[20]. According to the 2019 Latin American Startup Directory, Brazil-based startups compose a little over half the Latin American Startup Directory (53%), followed by Mexico (14%), Colombia (7%), Argentina (7%), and Chile (6%). [21]
In Latin America, 2019 was marked by massive protests in countries such as Chile, Colombia, and Ecuador. The resignation of President Evo Morales followed Bolivia’s disputed election and the Peronists’ return to power in Argentina. However, at least before the coronavirus outbreak in 2020, the Latin American political turmoil seemed not to affect the investments in technology in the continent.
Brazil remained the paradise for Latin American startups and is among the favorites of investment funds. 50% of the fund created by SoftBank in 2019 was addressed to Brazilian startups[22]. In August 2020, Vulcan Capital led a US$120m Series B round[23] in Brazilian mobile game startup Wildlife Studios. [24]
In February, Microsoft announced a US$1.1 billion investment in Mexico, as part of the “Innovate for Mexico” plan[25]. Also, Adobe Capital made an undisclosed investment in Puntored, a Colombian digital payments platform[26]. In the same month, Global 66, a Chilean fintech, raised US$3.25 million from British VC fund Venrex along with additional funding from private investors[27]. Additionally, Magma Partners recently closed a US$50 million fund, with US$4 million from IDB Lab, to invest in Latin American Startups.[28]
As the technology sector continues to develop in Latin America, as well as the startup industry remains in expansion, the business flow involving tech startup companies intensifies. Therefore, the number of B2B disputes tends to increase. Where a settlement cannot be reached, the parties have to seek agile and effective conflict resolution mechanisms to solve their controversies. Frequently, litigation is not one of them, especially not in Latin America [for reasons you may wish to describe briefly].
3. Discussion
Parties in disputes have several options to try to resolve their disagreements. The most popular means of dispute resolution are negotiation, mediation, neutral evaluation, mini-trials, expert determination, and, finally, arbitration and litigation. Arbitration has become very popular in Latin America, especially to resolve commercial disputes after the countries have started to develop their arbitration legislation. Both litigation and arbitration have positive and negative aspects. Here, the discussion will be limited to specific features of arbitration and litigation that are relevant to tech startups involved in B2B conflicts.
a. Experts and Decision-Making
First and foremost, it is important to highlight that disputes involving tech startups are not limited to information technology (IT). Conflicts can arise in a broad range of different business sectors, like telecommunications, transportation, biotech, pharmaceuticals, and other science and engineering fields.
WEEX,[29] for example, is a mobile virtual network operator (MVNO) that offers mobile telephony and data services targeting millennials in Mexico. Safertaxi[30] operates in Argentina, Brazil, Chile, and Mexico, offering a mobile app to locate and book taxis and private cars.
The Brazilian Hi Technologies[31] creates biomedical equipment and telemedicine technology for the humanization of healthcare. It is currently working at full speed to distribute quick tests for COVID-19 that returns results in 15 minutes[32]. Speratum[33] is a startup dedicated to research and development of targeted molecular therapies for cancer treatment and it is based in Costa Rica.
Disputes involving technology companies, especially startups, often demand not only specific understanding regarding technology itself, but also knowledge in particular sectors of operation. For example, in a dispute between Hi Technologies and a buyer or distributor of COVID-19 quick tests, it may be relevant that all the individuals involved in the resolution of the conflict have minimum expertise in startup businesses, technology, and biomedicine.
Expert testimony is essential in both arbitration and litigation of technology disputes. The main difference between arbitration and litigation in these cases is the audience. In litigation in civil law countries, an expert usually delivers the judge a written testimony. As courts specialized in technology in Latin American jurisdictions are uncommon, the cases are usually distributed to the existent Salas or Varas, and it is most likely that the judge of the case will not be experienced in any specific technology topics.
However, in arbitration, the parties can appoint their own arbitrator or arbitrators. They can establish in the arbitration clause of an agreement that the arbitrator(s) selected by them must have experience in cases involving tech disputes and/or a specific educational background in biology, for example. The expert witness testimony would be likely more effective if the audience has at least basic knowledge and experience in the subject.
Thus, it is possible to affirm that expert witness testimony is more effective in arbitration. Having the experts presenting evidence to a skilled panel rather than judges specialized in other traditional litigation fields saves time, costs and allows appropriate focus on the merits of the case. [34]
b. Forum Selection
In litigation, the parties cannot freely choose where an action arising out of an agreement should be filed. There are binding rules on jurisdiction establishing where should a lawsuit be brought and where not. In a well-drafted arbitration clause, the parties should provide for the legal seat of the arbitration. They do so for a variety of reasons, such as to provide a convenient neutral forum the laws and courts of which do not interfere with the arbitration process, and reduce the risk of being sued in multiple forums where a party does business in many states. [35]
In the context of arbitration between parties from the same country, they typically select a city or locale where one party or the other is located. In this case, one may argue that the forum selection feature of arbitration is not more favorable to tech startup disputes comparing to litigation.
However, even in domestic arbitration, the parties can choose to sit at a location where a specific arbitral institution is situated. For example, Hi Technologies is based in Paraná, a state in southern Brazil. In a hypothetical arbitration against a clinical laboratory based in Manaus, the capital city of Amazonas, a state in northern Brazil, the parties may choose São Paulo as the seat of arbitration, where the Center for Arbitration and Mediation of the Chamber of Commerce Brazil-Canada (CAM-CCBC), one of Brazil’s major arbitral institutions, is located. One reason for this is because the CAM-CCBC cases were always heard on their premises. Now, during the COVID-19 period, arbitration hearings administered by almost all major Brazilian arbitral institutions are being conducted by videoconference – at least in locales with reliable high-speed internet service, which does still not reach a lot of the country. This practice may well continue after the pandemic and lockdowns pass, for reasons of economy of time and costs.
Latin American startups have become global, though. Auth0[36] operates a cloud-based identity platform for developers in Argentina, in the United Kingdom, and the United States. The Brazilian Gympass operates in Brazil, Chile, Germany, France, Ireland, Italy, Mexico, Netherlands, Portugal, San Marino, Spain, Uruguay, and also in the United Kingdom and the United States and is headquartered in New York. Even startups that are not unicorns like Auth0 and Gympass have operated in international markets, such as the Mexican fintech Clip, which does business in Mexico, Salt Lake City, and the Silicon Valley. [37]
For companies engaged in transnational operations, the possibility to choose the forum without restrictions besides the agreement between the parties can be a great advantage over litigation. First, because multinational disputes need not to be litigated in the courts of multiple countries. Litigations can be merged into a single arbitration addressing the disputes at a multinational level. And second, because arbitral awards are enforceable worldwide[38]. This characteristic of arbitrations is beneficial to startups when they need to seek for other party’s assets in different countries to fully enforce a final decision from the arbitral tribunal.
It is important to recall that hearings in arbitration do not need to be held at the location established by the parties as the seat. The place of hearing is the physical location where the hearing is held and may be different from the place or seat of arbitration.[39]
c. Privacy and Confidentiality
Privacy and confidentiality might be the most important aspects to be considered in technology cases. Court proceedings are normally open to the public, except when courts enter protective orders safeguarding the parties’ information. In general, at least the identity of the parties and the nature of the dispute are matters of public records in court. Technology companies typically consider confidentiality and privacy as crucial concerns in the dispute resolution process. For this reason, they must likely choose different ways to solve their conflicts rather than litigation.[40]
Because of the publicity inherent to litigation, a tech company may settle its disputes or choose arbitration and other Alternative Dispute Resolution (ADR) mechanisms. The goal is to ensure its intellectual property is kept secret, to “avoid alarming customers about service disruptions, insulate suppliers from claims, safeguard its distribution channels or keep private financing, intimal public offering or acquisition on track. [41]
Startups are usually in the early stage of their operations. In this phase, the finances of a company might still be fragile. On the one hand, facing the publicity of a lawsuit could be critical to a startup business because it can affect the profitability of its operations. Therefore, avoiding litigation for startups can be a matter of life or death. On the other hand, if a startup strongly believes it would prevail in a dispute, bringing the case to court and dealing with public scrutiny could be a strategic consideration as well, but should be analyzed very carefully.
Arbitration proceedings are private, and the parties can agree that they will be confidential[42]. Typically, the arbitrators are bound to maintain the confidentiality of the proceeding. However, parties, witnesses, and experts are not, unless the parties agree to make the proceedings confidential. In the agreement, the parties can limit any public disclosure about the existence of the dispute, which is rarely possible in court. [43]
In domestic arbitration, the general terms of confidentiality may vary according to the arbitration rules of each jurisdiction. The Peruvian arbitration law establishes confidentiality rules in its Article 51, for example.[44] However, other Latin American countries, such as Brazil[45] and Colombia,[46] do not have specific rules regarding confidentiality in arbitration proceedings. When arbitrating disputes in these countries, the parties must closely consider including a confidentiality provision in their arbitration agreement if possible.
d. Time and Costs
Among the usually listed advantages of going to arbitration instead of litigation are cost-effectiveness and quicker results. Some practitioners argue that attorney fees and expenses are minimized in arbitration because it is generally completed in less time and involves less discovery.[47] In fact, the limited right to appeal in arbitration typically eliminates a phase that can delay the finality of the award.
Nonetheless, other elements can lead to a slower process, and there is no guarantee that arbitration will end more rapidly than court proceedings. Actually, it can last longer. The parties are allowed to set up their own agenda, and in case one of the parties does not obey it, the legal consequences for the delaying party in arbitration are softer than in litigation.
Also, it can be challenging to reconcile the schedule of arbitrators, fact witnesses, experts, parties, third parties, and others involved in a dispute. Selecting an arbitrator or arbitration panel can take time, especially in the case of a three-arbitrator panel and where the two party-proposed arbitrators decide on the third. Therefore, one cannot assume that arbitration is always more advantageous than litigation in terms of time.
An arbitration that lasts long can be costly.[48] However, even in short proceedings, arbitration can be very expensive too. Costs include administrative fees, such as initial filing and case service fees in institutions, and the rates can vary depending on the amount of claim. Arbitrators’, attorneys’ and experts’ fees can be high[49]. In case a proceeding allows full production of evidence or testimony, it usually means lengthy hearings in jurisdictions that may require traveling and long expert work hours, for example, besides multiple expert reports, reply reports, and sur-rebuttal reports. [50]
Still, arbitration, from an overall perspective, is likely cheaper than litigation in the United States. For some categories of disputes, administrative and arbitrators’ fees exceed the filing fees in court[51]. In U.S. litigation, there are additional expenses, like discovery costs, motion practice, and proposed findings of fact, that are not usual in arbitration.
Nevertheless, litigation in Latin American countries is generally accessible, based on the fundamental right to Acceso a la Justicia or Acesso à Justiça, typical of civil law countries, and the costs are not as high as in the United States. Because startups are companies usually in an early stage of operations and spending a large amount of money may be lethal, startups must carefully consider the matters of time and costs before deciding for arbitration.
4. Implications
In general, arbitration is more advantageous than litigation for tech startups. Therefore, Latin American arbitration institutions may want to attract these companies as users. The challenges of high-costs and lengthy proceedings can be resolved by creating alternative prices and expedited procedure provisions based on the use of technology that is individually designed for tech startups.
Some global institutions have already adopted valid practices to promote remote arbitration, especially after the coronavirus outbreak. The International Chamber of Commerce (ICC), and the London Court of International Arbitration (LCIA), for example, do not impose restrictions on the use of IT in arbitration[52]. Although these arbitral institutions are considered very expensive, because of the COVID-19 pandemic and its consequences, almost all institutions provide for videoconference arbitration and model protocols and panel procedural
Because arbitration is a procedure primarily based on the parties’ agreement, the absence of limitations as to the use of technology must be interpreted in the light of the parties’ desires. Therefore, they can decide when and to which extension IT tools will be used; however, the institutions must be able to manage the cases virtually to conform to the parties’ decision.
The concern for the health and wellbeing of staff and users regarding the COVID-19 has pushed ICC to accept filing primarily by e-mail. Filing and other communications, as well as the delivery and transmission of awards, have been made exclusively in electronic form in LCIA.[53]
Latin American institutions have adopted similar guidelines. CCB’s Center of Arbitration and Conciliation (Cámara de Comercio de Bogotá) established in its rules that the notifications and communications between the parties, and the filing should be made electronically.[54] The Santiago Arbitration and Mediation Center (Centro de Arbitraje y Mediación de la Cámara de Comercio de Santiago) also allows electronic communications and notifications.[55] The CAM-CCBC has recently amended its rules to include virtual filing, notifications, and communications, and to allow the conduction of hearings remotely, via Microsoft Teams or a similar platform.[56]
Nonetheless, to make arbitration more accessible to tech startups, the adoption of other features may be desirable. Major arbitral institutions also make available case-management applications. Through such services, a significant amount of files of different sizes can be transmitted, filed, and labeled. An important characteristic of case-management applications is that the transmissions and exchanges may be tracked, generating a clear history of the proceedings.[57]
ICC used to provide a case-management tool called “NetCase.” Currently, the ICC Commission on Arbitration and ADR Task Force on the Use of Information Technology in International Arbitration is working to develop a more updated internet-based case management product[58]. The World Intellectual Property Organization (WIPO) offers an online case communication tool called “Electronic Case Facility” (ECAF).[59] The American Arbitration Association (AAA) provides the “AAA WebFile” for users and another tool called “Panelist eCenter” for the panelists to manage their cases[60]
The Silicon Valley Arbitration & Mediation Center (www.SVAMC.org) is an institution that “promotes U.S. and international business-practical resolution of technology and technology-related business disputes.”[61] Even though it does not administrate cases, the SVAMC offers seminars, webinars and articles on technology arbitration and mediation, and is developing a toolkit of best practices that could be used by arbitration institutions to serve tech startups.
SVAMC supports the resolution of technology disputes by highly experienced arbitrators and mediators around the world by publishing The List of the World’s Leading Technology Neutrals (“Tech List”) that is regularly updated. It catalogs appointees skilled in business, technology, and dispute resolution law and experienced in the sector locally in the US and internationally.[62] As technology is a specific field and startups are usually not very familiar with arbitration, providing a list of arbitrators, mediators, and experts skilled and experienced in the field may be helpful.
The Hong Kong International Arbitration Centre (HKIAC) offers users a range of integrated virtual hearing services. To facilitate e-hearing needs, the institution provides, among other tools, cloud-based video conferencing compatible with all major video conferencing platforms (Zoom, Webex, Microsoft Teams), access to platforms for online and offline eBundling services, and assembly of Electronic Presentation of Evidence, all with flexible pricing options.[63] Besides that, HKIAC allows the users to complete an online e-hearing inquiry form where they can inform their specific need for e-hearings services and to personalize the virtual proceeding. [64]
Arbitration users can also agree to arbitrate their disputes in an electronic environment through an entirely online arbitration proceeding, known as e-arbitration.[65] However, most leading arbitral institutions do not provide for e-arbitration solutions. Specialized and less known institutions are the ones offering such feature, like the China International Economic and Trade Arbitration Commission’s (CIETAC) Online Dispute Resolution Center, which focuses on the solution of domain name and e-commerce disputes. The HKIAC supports a similar online center called ebram.
The Unum Transport Arbitration & Mediation is a foundation for dispute resolution that offers a platform for conducting professional arbitration proceedings in the areas of shipping, shipbuilding, transport, storage, logistics, and international trade. Unum is a pioneer in using e-arbitration since 2008.[66] The Thai Arbitration Institute also makes available an e-arbitration platform, Tai Easy.[67]
Furthermore, there are independent e-arbitration providers, such as FastArbitre, a French online platform that offers arbitration for companies all over the world.[68]Once the parties agree to resolve their disputes using FastArbitre, all the proceedings will be held on this platform, which is updated continuously.
Conducting e-arbitrations and adopting practices to manage arbitration remotely, however, involve challenges that need to be confronted by users, practitioners, and institutions to safeguard the legitimacy and enforceability of arbitral awards. These individuals, in general, can be assisted by several reports and guidelines on the use of technology in arbitration, cybersecurity, and e-arbitration, which serve as a useful orientation to avoid ineffective and violation of rights. [69]
Latin American institutions may want to incorporate the practices examined herein to provide more accessibility to tech startups and must do so prioritizing reliable internet access, security, privacy, and confidentiality. In any event, the costs are still a crucial aspect to be considered by these companies when deciding to go to arbitration or not.
Creating special plans for tech startups can be a valid strategy to be adopted by institutions. Arbitral institutions usually calculate costs and fees based on the amount in controversy of a case. However, some of them offer an expedited procedure providing for a streamlined arbitration with a single arbitrator, faster- track process, and reduced scales of fees aiming to offer more efficient services in terms of time and cost and to enhance transparency.
ICC,[70] JAMS,[71] and AAA,[72] for instance, offer offer more affordable fees for parties who choose a process that limits some procedures, such as depositions, document requests, e-discovery, and hearings. For a dispute fall within the expedited procedure rules, the amount in controversy must not exceed the limit established by the institution.
Therefore, designing accessible and cost-effective arbitration plans for tech startups can be a positive tactic to be adopted by Latin American institutions. Based on the analysis provided in this article, plan options should include the use of technology, lean procedures, and reduced fees.
In conclusion, Latin American startups have attracted a lot of investment in the last years. As a result, the number of B2B disputes tends to increase, and startups have to seek efficient conflict resolution mechanisms that consider their business setup and operations stage. It can be positive for Latin American tech startups to arbitrate commercial disputes because of some advantages over litigation, such as expert-decision making, the possibility of forum selection, and privacy and confidentiality. Latin American arbitration institutions may intend to attract startups as users. Already valid practices have been adopted by these institutions, like allowing electronic filing and communications, and holding hearings by videoconference. Additionally, other features can be offered to captivate tech startups, such as listing skilled and experienced arbitrators and experts in the field, and offering plans designed to provide accessible costs and promote virtual arbitral proceedings, with the option of conducting full e-arbitration.
Footnotes:
[1] Michael Sheetz, SpaceX valuation rises to $33.3 billion as investors look to satellite opportunity, CNBC (May 31, 2019, 1:56 PM), https://www.cnbc.com/2019/05/31/spacex-valuation-33point3-billion-after-starlink-satellites-fundraising.html.
[2] Sarah E. Needleman & Katie Roof, Fortnite Creator Epic Games Valued at Nearly $15 Billion, The Wall Street Journal (Oct. 26, 2018 5:54 PM), https://www.wsj.com/articles/fortnite-creator-epic-games-valued-at-nearly-15-billion-1540577025.
[3] Latin American Startup Directory, LAVCA, https://lavca.org/vc/startup-directory/ (last visited Apr. 4, 2020).
[4] Formerly known as 99Taxis, 99 is a vehicle for hire company. See A 99, 99, https://99app.com/sobre-a-99/ (last visited Oct. 7, 2020).
[5] Nubank is the largest Fintech in Latin America. See Sobre Nós, Nubank, https://nubank.com.br/sobre-nos/ (last visited Oct. 7, 2020).
[6] PagSeguro is an online or mobile payment-based e-commerce service for commercial operations. See Sobre PagSeguro, https://pagseguro.uol.com.br/sobre/ (last visited Oct. 7, 2020).
[7] Gympass is a fitness discovery platform connecting the world’s network of fitness facilities to companies and its employees. See Terms and Conditions of Use, Gympass, https://www.gympass.com/us/terms (last visited Feb. 20, 2020).
[8] QuintoAndar offers an online platform where users can explore, book, rent, and promote properties. See O que o QuintoAndar faz quando ocorre um desentendimento entre inquilino e proprietário?, Quintoandar, https://help.quintoandar.com.br/hc/pt-br/articles/220891907-O-que-o-QuintoAndar-faz-quando-ocorre-um- (last visited Feb. 20, 2020).
[9] “A unicorn is a term used in the venture capital industry to describe a privately held startup company with a value of over $1 billion.” See What Is a Unicorn?, https://www.investopedia.com/terms/u/unicorn.asp (last visited Oct. 7, 2020).
[10] Cosmo Sanderson, Uber threatens Colombia with treaty claim over ban, Global Arbitration Review (Jan. 10, 2020), https://globalarbitrationreview.com/article/1212835/uber-threatens-colombia-with-treaty-claim-over-ban.
[11] Tina Bellon, Uber and Lyft take different roads in search of profit, Reuters (Feb. 7, 2020, 2:53 PM), https://www.reuters.com/article/us-uber-lyft/uber-and-lyft-take-different-roads-in-search-of-profit-idUSKBN2012I1.
[12] Ellen Huet, Homejoy Shuts Down, Citing Worker Misclassification Lawsuits, Forbes (Jul. 17, 2015,02:58 PM), https://www.forbes.com/sites/ellenhuet/2015/07/17/cleaning-startup-homejoy-shuts-down-citing-worker-misclassification-lawsuits/#220cb93a78be.
[13] Natalie Robehmed, What Is A Startup?, Forbes, (Dec. 16, 2013, 08:42 am), https://www.forbes.com/sites/natalierobehmed/2013/12/16/what-is-a-startup/#5b2bd49d4044.
[14] Meaning of start-up in English, Cambridge University Press, https://dictionary.cambridge.org/dictionary/english/start-up (last visited Mar. 11, 2020).
[15] Vale do Silício: como fazer parte, mesmo não estando lá, Enderavor, https://endeavor.org.br/inovacao/vale-do-silicio/ (last updated Aug. 15, 2019).
[16] GDP stands for “Gross Domestic Product” and represents the total monetary value of all final goods and services produced (and sold on the market) within a country during a period of time (typically 1 year). See What is GDP?, Worldometer, https://www.worldometers.info/gdp/what-is-gdp/ (last visited Mar. 11, 2020).
[17] GDP growth (annual %), The World Bank, https://data.worldbank.org/indicator/NY.GDP.MKTP.KD.ZG?locations=ZJ (last visited Mar. 15, 2020).
[18] Start-Up Chile (SUP) is the biggest startup accelerator in LATAM, launched by the Chilean government. See Start-up Chile, https://www.startupchile.org/ (last visited Mar. 15, 2020).
[19] Latin American organizations are becoming technological hubs of innovation and production at an increasing rate. See Deloitte’s 2016 Global Outsourcing Survey-May 2016, Delloite, https://www2.deloitte.com/content/dam/Deloitte/nl/Documents/operations/deloitte-nl-s&o-global-outsourcing-survey.pdf (last visited Mar. 15, 2020).
[20] Jonathan Moed, Start-Up Chile’s Impact 2010-2018: Inside The Revolutionary Startup Accelerator, Forbes (Nov. 19, 2018,07:37 AM), https://www.forbes.com/sites/jonathanmoed/2018/11/19/start-up-chiles-impact-2010-2018-inside-the-revolutionary-startup-accelerator/#6614e9266dc5.
[21] Latin American Startup Directory, LAVCA, https://lavca.org/vc/startup-directory/ (last visited Apr. 4, 2020).
[22] Brazilian Startups: 2020 begins with growth opportunities, Latin America Tech (Feb. 29, 2020), http://www.latinamerica.tech/2020/02/29/brazilian-startups-2020-begins-with-growth-opportunities/.
[23] “Series B financing is the second round of funding for a business through investment, including private equity investors and venture capitalists. Successive rounds of financing a business are consecutively termed Series A, Series B, and Series C financing. The Series B round generally takes place when the company has accomplished certain milestones in developing its business and is past the initial startup stage.” See Tim Smith, Series B Financing, Investopedia (Aug 27, 2020) https://www.investopedia.com/terms/s/series-b-financing.asp (last visited Oct. 7, 2020).
[24] Vulcan Capital Leads US$120m Series B in Brazilian Mobile Game Startup Wildlife Studios, LAVCA (Aug. 14, 2020), https://lavca.org/2020/08/14/vulcan-capital-leads-us120m-series-b-in-brazilian-mobile-game-startup-wildlife-studios (last visited Oct. 7, 2020).
[25] @MSFTMexico, Twitter (Feb. 20, 2020, 11:11 AM), https://twitter.com/MSFTMexico/status/1230525489003073539?s=20.
[26] Adobe Capital Invests in Colombian Fintech Puntored, LAVCA (Feb. 27, 2020), https://lavca.org/2020/02/27/adobe-capital-invests-in-colombian-fintech-puntored/.
[27] Venrex Investment Management and Others Invest US$3.25m in Global 66, LAVCA (Feb. 1, 2020), https://lavca.org/2020/02/01/venrex-investment-management-and-others-invest-us3-25m-in-global-66/.
[28] Magma Partners Closes US$50m Fund, with US$4m from IDB Lab, to Invest in Latin American Startups, LAVCA (Feb. 28, 2020), https://lavca.org/2020/02/28/magma-partners-closes-us50m-fund-with-us4m-from-idb-lab-to-invest-in-latin-american-startups/.
[29] Weex, https://weex.apache.org/ (last visited Apr. 9, 2020).
[30] Safertaxi, http://www.safertaxi.com/ (last visited Apr. 9, 2020).
[31] Hitechnologies, http://hitechnologies.com.br/site/pt/ (last visited Apr. 9, 2020).
[32] Angelica Mari & Gabriela Arbex, Brasileira Hi acelera produção de testes rápidos de coronavírus e mira parcerias comerciais, Forbes (Apr. 6, 2020), https://forbes.com.br/colunas/2020/04/brasileira-hilab-acelera-producao-de-testes-rapidos-de-coronavirus-e-mira-parcerias-comerciais/.
[33] Speratum, https://www.speratum.com/ (last visited Apr. 9, 2020).
[34] Gary L. Benton, Technology Disputes: Courts or Arbitration 6 (2016), https://svamc.org/wp-content/uploads/Technology-Disputes-Courts-or-Arbitration.Benton.-8.20.16-.pdf.
[35] Id. at 2.
[36] Auth0, https://auth0.com/ (last visited Oct. 7, 2020).
[37] See Latin American Startup Directory, LAVCA, https://lavca.org/vc/startup-directory/ (last visited Apr. 4, 2020).
[38] Although some narrow exceptions are allowed by the New York Convention. See Gary L. Benton, Technology Disputes: Courts or Arbitration 8 (2016), https://svamc.org/wp-content/uploads/Technology-Disputes-Courts-or-Arbitration.Benton.-8.20.16-.pdf.
[39] Place of arbitration and place of hearing? What is the difference? Singapore International Arbitration Centre, https://www.siac.org.sg/71-resources/frequently-asked-questions/180-place-of-arbitration-and-place-of-hearing-what-is-the-difference (last visited Apr. 10, 2020).
[40] Gary L. Benton, Technology Company Disputes: Confidentiality and Privacy Considerations in Court and Arbitration 1 (2016), https://svamc.org/wp-content/uploads/TechCompanyDisputesConfidentiality.Benton.pdf
[41] Id. at 1-2.
[42] For companies listed on the stock exchanges, regulatory bodies in some countries (U.S. e.g.) require that the facts (though not all details) of one or more arbitrations existing be disclosed in their financial statements for investors
[43] Certainly, it depends on which country’s courts and laws are applied regarding confidentiality.
[44] See Artículo 51 Decreto Legislativo que norma el arbitraje [DL. Nº 1071], Dirección de Arbitraje Administrativo del OSCE 1-09-2008 (Peru).
“… 1. Salvo pacto en contrario, el tribunal arbitral, el secretario, la institución arbitral y, en su caso, los testigos, peritos y cualquier otro que intervenga en las actuaciones arbitrales, están obligados a guardar confidencialidad sobre el cursode las mismas, incluido el laudo, así como sobre cualquier información que conozcan a través de dichas actuaciones, bajo responsabilidad.
- Estedeber de confidencialidad también alcanza a las partes, sus representantes y asesoreslegales, salvo cuando por exigencia legal sea necesario hacer público las actuaciones o, en su caso, el laudo para proteger o hacer cumplir un derecho opara interponer el recurso de anulación o ejecutar el laudo en sede judicial.
- Entodos los arbitrajes regidos por este Decreto Legislativo en los que interviene el Estadoperuano como parte, las actuaciones arbitrales estarán sujetas a confidencialidad y el laudo será público, una vez terminadas las actuaciones.”
[45] Lei No. 9.307, de 23 de Setembro de 1996. Diário Oficial da União [D.O.U.] de 24.9.1996 (Braz.).
[46] L. 1563, julio 12, 2012, Diario Oficial No. 48.489 [D.O.] (Colom.).
[47] Stephen R. Stern & Sloan J. Zarkin, Why Arbitration Beats Litigation for Commercial Disputes, 32 GPSolo 40 (2015).
[48] In Brazil, for examples, arbitration is considered very expensive compared to litigation. Parties have to pay the institution when they do not choose ad hoc arbitration and, sometimes, three arbitrators, experts etc. whereas courts are practically free of charge. Many Brazilian lawyers charge on a percentage basis, which is rare in arbitration. Losers often go to court to try and nullify the award, even on frivolous grounds, since it is cheap to try doing so. A practical result is that in Brazil at least, arbitration is used more for big cases like M&As, corporate shareholder disputes over control of the company etc.
[49] Christopher R. Drahozal, Arbitration Costs and Form Accessibility: Empirical Evidence, 41 U. Mich. J.L. Reform 813 (2008).
[50] Carl Jenkins & A. Scott Davidson & Dominic Wreford, What To Know Before Going Into Arbitration, Duff & Phelps (Jul. 26, 2017), https://www.duffandphelps.com/insights/publications/litigation-and-disputes/what-to-know-before-going-into-arbitration.
[51] Drahozal, supra at 840.
[52] Information extracted from the institutions’ rules, regulations, and bulletins on https://iccwbo.org/ and https://www.lcia.org/.
[53] Id.
[54] See Reglamento Centro De Arbitraje Y Conciliación Cámara De Comercio De Bogotá, Cámara de Comercio de Bogotá (2009), available at https://www.centroarbitrajeconciliacion.com/content/view/full/8543.
“Artículo 2.5. Notificaciones y comunicaciones.
Salvo acuerdo en contrario de las partes:
- Cualquier notificación del tribunal o comunicación del Centro que deba efectuarse en virtud del presente Reglamento o del Estatuto Arbitral podrá hacerse de manera electrónica.
…
Artículo 2.33. Escrito de demanda.
- El escrito de demanda se presentará en el Centro físicamente o a través de medios electrónicos, junto con el pago de los gastos iniciales. Si no se aporta el comprobante con el que se acredita el pago de los gastos, el trámite se mantendrá suspendido y el Centro requerirá a la parte convocante para que en el plazo máximo de cinco (5) días acredite el pago, so pena de devolución del escrito de demanda y demás documentos.
…
Artículo 3.21. Conducción del procedimiento arbitral.
…
- El Tribunal y las partes podrán acudir a la utilización de los medios electrónicos para la realización de audiencias y práctica de pruebas, a través de sistemas como video conferencia, teléfono o medios similares de comunicación. De igual manera, podrán establecer el envío de comunicaciones y documentos a través de correo electrónico a las direcciones de correo aportadas por las partes y por el tribunal arbitral.”
[55] See Artículo 5º Reglamento Procesal de Arbitraje (2012) and Artículo 2 Reglamento Arbitraje Internacional, CAM SANTIAGO – Centro de Arbitraje y Mediación (2006).
“Artículo 5º.- Notificaciones
Todas las notificaciones o comunicaciones que se efectúen en el procedimiento, incluso en caso de rebeldía de una de las partes, podrán efectuarse personalmente, por cédula, mediante correo certificado, servicio postal, correo electrónico, avisos o por cualquier otro medio que acordaren las partes y que deje registro, quedando siempre constancia en el expediente. Dichas notificaciones o comunicaciones se harán en la última dirección de la parte destinataria o de sus representantes que conste en autos. Con todo, la primera resolución que dicte el Tribunal Arbitral se deberá notificar personalmente a las partes, a través de receptor judicial.
En caso de notificación por carta certificada, ésta se entenderá recibida el tercer día contado desde la fecha del despacho.”
“Artículo 2
Notificaciones y Plazos
…
Todas las notificaciones o comunicaciones podrán entregarse o enviarse ya sea personalmente o mediante correo certificado, telefax, correo electrónico o por cualquier otro medio que deje constancia del envío”.
[56] AR 40/2020 Ref.: Administrative organization of the CAM-CCBC and rules for the electronic processing of proceedings under the public health rules related to Covid-19, CAM/CCBC Center for Arbitration and Mediation, https://ccbc.org.br/cam-ccbc-centro-arbitragem-mediacao/en/ar-40-2020/ (last visited Apr. 23, 2020).
[57] Lars Markert & Jan Burghardt, Navigating the Digital Maze – Pertinent Issues in E-Arbitration, 27, 10 J. Arb. Stud. 3 (2017).
[58] Information Technology in International Arbitration- Report of the ICC Commission on Arbitration and ADR, International Chamber of Commerce, https://iccwbo.org/publication/information-technology-international-arbitration-report-icc-commission-arbitration-adr/ (last visited Apr. 23, 2020).
[59] Use of the WIPO Arbitration and Mediation Center’s Electronic Case Facility, World Intellectual Property Organization (Mar. 31, 2020), https://www.wipo.int/amc/en/new/americascup36.html.
[60] AAA-ICDR Software and Online Tools, American Arbitration Association, https://www.adr.org/TechnologyServices/aaa-icdr-software-and-online-tools (last visited Apr. 23, 2020).
[61] About SVAMC, Silicon Valley Arbitration & Mediation Center, https://svamc.org/about/ (last visited Apr. 23, 2020).
[62] About the Tech List, Silicon Valley Arbitration & Mediation Center, https://svamc.org/tech-list (last visited Apr. 23, 2020).
[63] Convenient and Efficient: HKIAC E-HEARINGS, Hong Kong International Arbitration Centre, https://www.hkiac.org/content/virtual-hearings (last visited Apr. 23, 2020).
[64] Id.
[65] Markert & Burghardt, supra at 6.
[66] About Unum, UNUM Transport Arbitration & Mediation, https://unum.world/about-unum/ (last visited Apr. 23, 2020).
[67] E-Arbitration User’s Manual, Thai Arbitration Institute, https://tai.coj.go.th/en/content/page/index/id/148976 (last visited Apr. 24, 2020).
[68] How does FastArbitre work?, Fast, https://fast-arbitre.com/en/how-does-it-work/ (last visited Apr. 24, 2020).
[69] Markert & Burghardt, supra at 27.
[70] Expedited Procedure Provisions, International Chamber of Commerce, https://iccwbo.org/dispute-resolution-services/arbitration/expedited-procedure-provisions/ (last visited Apr. 24, 2020).
[71] See Rules 16.1 and 16.2 JAMS Comprehensive Arbitration Rules & Procedures, JAMS (2014) https://www.jamsadr.com/rules-comprehensive-arbitration/#Rule-16-1.
[72] See Expedited Pocedures, E-1 to E-10 Commercial Arbitration Rules and Mediation Procedures, American Arbitration Association (2013) https://adr.org/sites/default/files/Commercial%20Rules.pdf.
