Jorge Isaac Gonzalez Carvajal is an independent arbitrator from Venezuela. He shares his insights and makes predictions about the future of the sector.
Could you briefly summarize the alternative dispute resolution systems (ADR) in Venezuela and the processes involved?
In 1999, the Constitution of Venezuela made a significant positive change to the dispute resolution system. First, the Constitution of 1999 Venezuela recognizes the rights and guarantees of access and due process to justice and the right of defence. Second, the traditional organization and structuring of an independent and impartial Judiciary is recognized. The Constitution, as a collection of actors and mechanisms that work together in the resolution of disputes, creates the concept and idea of the “justice system”. ADRs are a part of this system.
The justice system is, evidently, a coordinated operation of several pieces that work together to provide people with the appropriate mechanisms to resolve disputes. The ADR sub-system, which is one of the cogs in the justice system, must work for it to function.
ADR has been promoted and supported since the 1999 Constitution was adopted. Article 258 CRBV states that “The law will organize justice of peace in the communities. The law will allow judges or justices to be elected through universal, direct and secret ballots. The law will encourage arbitration, conciliation and mediation as well as any other means of conflict resolution.
This rule is recognized as the constitution of ADRs and can be addressed to both public power (including courts) or private parties. This position places Venezuela in line with the global evolution in dispute resolution mechanisms.
What are the key Venezuelan laws and statutes that govern mediation, arbitration and ADR?
Private arbitration is governed by the Commercial Arbitration Act of 1998 and justice of peace by the Organic Law of the Special Juisdiction of the Communal Justice of the Peace of 2012. There is also a growing jurisprudential doctrine that favors alternative dispute resolution mechanisms (see SC/TSJ No. Official Gazette No. 1541/08 39,055 [today’s leading case in arbitration], SC/TSJ Number. 1067/2010, published by Official Gazette No. 39,561 dated 26 November 2010 and SC/TSJ No. 1784/11 dated December 31, 2011
In 1999, the Constitution of Venezuela made a significant positive change to the dispute resolution system.
The 1998 Venezuelan Commercial Arbitration Act is based on the UNCITRAL Model Law of International Commercial Arbitration (1985), although it has some particularities that are unique to each country. This law was adapted in order to meet the global desire to standardize and harmonise arbitration practice.
Venezuela is also one of the 172 nations that have signed the 1958 Convention on the Recognition and Enforcement of Foreign Arbitral Awards. This Convention has been in effect since 1995. It is also part of the Inter-American Convention on International Arbitration, which has been in force since 1985.
Although there is no law in Venezuela that regulates mediation or conciliation, regulations are found within some legislation. These are the Civil Procedure Code, and the Labour Procedure Law. This last instrument creates a mandatory mediation stage before the trial. It has proven to be very effective in practice.
Venezuela is also a signatory to the United Nations Convention on International Settlement Agreements Results from Mediation (Singapore Convention on Mediation) It has yet to enter into force, but it shows the country’s vocation and commitment to ADR promotion.
What has been the evolution of ADR in your practice?
Since 1998, the ADR landscape has seen significant changes. The 1998 Law has made it possible to understand commercial arbitration in a new way. This is a major shift that has led to a pro-arbitration regulatory structure. The 1999 Constitutional normative provisions, along with the early jurisprudence from the Supreme Court, serve as the foundation for the progressive and consolidated development in Venezuela of arbitration (and other ADRs) mechanisms.
This can be seen in the rise in arbitrations in Venezuela since 2000, which was slowed by the severe crisis in 2014-2019.
The 1998 Law has led to the development of a pro-arbitration regulatory structure.
Some institutions have satisfactory results in managing mediation and/or conciliation, either as an independent process or as part of arbitration proceedings. ADR, mediation, and arbitration have all been included in university courses, both undergraduate and postgraduate. There are also important postgraduate programs in arbitration and mediation.
The legal community has been more interested in ADRs. The main reason I believe is the existence of circumstances that can affect the functioning of the judiciary. But, this does not mean that it is the only reason. Gradually, there has been a gradual increase in awareness of the benefits (and drawbacks) of ADR. The legal community is able to recognize when it is best to use ADR.
Is there anything cultural or legislative that would prevent its widespread adoption?
ADRs are not being blocked by the law, in general. ADRs are supported by both the Constitution, the laws, and the jurisprudence. This is not a new fact, as Venezuela has a nearly bicentennial history of favoring non-judicial dispute resolution mechanisms, such as arbitration, which has been in place since Venezuela’s independence. arbitration).
Also, I don’t believe there is any cultural barrier. ADR is like all areas of law. ADR requires awareness. There is an ADR vision. This vision is often different from the traditional culture of litigating in courts. As I mentioned above, ADRs are becoming more popular among lawyers and individuals as operating tools in their businesses.
A permanent academic and professional movement has existed for some time to promote and study ADR through workshops, congresses and publications.
What advice would your less experienced lawyers in your jurisdiction give to those who might want to specialize in ADR?
I would advise less experienced lawyers in Venezuela to learn about the dispute resolution process and how it works. Once you have a good understanding of the system, you can start to specialize if that is what your goal. This gives you a sufficient general view to be able to identify the ADR mechanisms that can help your problem. It is important that everything be in sync with a continuous review of the world. This is easy today because ADRs are more universal and consistent.
Are you optimistic about the future of ADR in Venezuela?
It would be interesting to see how the Public Power, ADR community, and ADR institutions (academic or professional) interact further. These bodies should be focused on ADR’s promotion, seeking to maximize its practical utility, and encouraging the incorporation and acceptance of new ADRs as well as the promotion and consolidation traditional ADR methods. This will make Venezuela a pro-ADR international center.
Jorge Isaac Gonzalez Carvajal, Independent Arbitrator
Gonzalez Carvajal Abogados
Tel: +58 414 100-5498
Jorge Isaac Gonzalez Carvajal has more than 18 years experience as an independent arbitrator in the field of litigation and dispute resolution. Gonzalez Carvajal Abogados was founded by him. He specializes in the resolution and avoidance of disputes in legal, tort, contractual, and arbitration matters. His vast experience includes national and transnational litigation, oil & gas, commercial, maritime and agricultural, as well as consumer law.