For in-house counsel managing Latin American operations, arbitration has become the preferred mechanism for resolving cross-border commercial disputes. The rationale is well understood: concerns about judicial independence, procedural delays, and unpredictable outcomes in local courts make international arbitration an attractive alternative. Yet while significant attention is devoted to selecting the governing law, the arbitral institution, and the language of proceedings, one critical decision often receives insufficient analysis—the seat of arbitration. This article examines why the seat deserves careful consideration and makes the case that Miami represents an optimal choice for disputes involving Latin American parties, particularly given Florida's favorable rules permitting foreign attorneys to represent parties in international arbitrations.

Understanding the Distinction: Three Legal Frameworks

Before analyzing seat selection, it is essential to distinguish between three separate legal frameworks that govern any international arbitration. This distinction is fundamental, and in-house counsel should ensure that their external advisors—particularly those from the region where the underlying transaction takes place—help them navigate each layer.

First, there is the substantive law (lex causae)—the law that determines the parties' rights and obligations under the contract. This is typically specified in the choice-of-law clause and governs questions such as contract interpretation, breach, and damages. When parties choose the law of a Latin American jurisdiction to govern their contract, having counsel deeply familiar with that legal system becomes invaluable—not only during contract negotiation but especially when disputes arise.

Second, there is the procedural law or lex arbitri—the law governing the arbitration proceeding itself. This framework is determined by the seat of arbitration and addresses critical matters including the validity of the arbitration agreement, arbitrator appointment and challenge procedures, the conduct of proceedings, and the grounds for setting aside an award. The lex arbitri is the legal regime within which the arbitration takes place and to which it is ultimately anchored.

Third, there are the institutional rules—the procedural framework established by the administering institution (ICC, ICDR, LCIA, etc.). While these rules govern day-to-day procedural matters, they operate within the constraints of the lex arbitri and cannot override mandatory provisions of the law of the seat.

The practical implication is significant: you may choose Colombian, Mexican, or Guatemalan law to govern your contract and ICC Rules to administer your arbitration, but the courts of the seat will have supervisory jurisdiction over the arbitral process and exclusive authority to annul the award. This jurisdictional reality makes seat selection a matter of strategic importance that warrants expert guidance from counsel familiar with both the substantive law of the transaction and the procedural implications of the chosen seat.

Why the Seat Matters

The seat of arbitration determines several critical aspects of the dispute resolution process. Under the UNCITRAL Model Law on International Commercial Arbitration, which has been adopted in over 85 jurisdictions, the courts of the seat exercise supervisory jurisdiction over the arbitration. ^¹ This includes the power to rule on challenges to arbitrator appointments, to provide interim measures of protection, and crucially, to set aside arbitral awards.

The standards for judicial intervention vary significantly across jurisdictions. While the Model Law provides a limited and internationally harmonized set of grounds for annulment, national courts differ in their interpretation and application of these grounds. Some jurisdictions have developed reputations for expansive review, while others maintain a strict policy of minimal judicial intervention. For parties who have chosen arbitration precisely to avoid local court litigation, the choice of a seat with unpredictable or interventionist courts may undermine the very purpose of the arbitration agreement.

Furthermore, the seat determines the "nationality" of the award for purposes of enforcement under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the "New York Convention"). ^² An award rendered at the seat is considered a "domestic" award in that jurisdiction and a "foreign" award everywhere else, triggering the Convention's enforcement framework in other contracting states.

The Case for an Extra-Regional Seat

If concerns about local judicial systems motivate the choice of arbitration over litigation, logical consistency suggests that the seat should also be located outside the region. Selecting a Latin American seat—even in jurisdictions with relatively well-developed arbitration frameworks such as Brazil, Chile, Colombia, Mexico, or Peru—still subjects the arbitration to the supervisory jurisdiction of courts that may present the very concerns that led to choosing arbitration in the first place.

While several Latin American jurisdictions have modernized their arbitration legislation and developed specialized commercial courts, the institutional environment remains uneven. Judicial appointments, procedural delays, and resource constraints continue to affect court performance across the region. An extra-regional seat removes these variables from the equation, providing an additional layer of neutrality and predictability.

This decision, however, raises a practical concern: will choosing a foreign seat require abandoning the expertise of Latin American counsel who understand the substantive law governing the contract? As discussed below, Miami offers a unique solution to this dilemma.

Miami: Strategic Advantages

Miami presents compelling advantages as an arbitral seat for Latin American disputes. From a legal framework perspective, the Florida International Arbitration Act^³ provides a modern statutory basis largely modeled on the UNCITRAL Model Law. Florida courts have demonstrated consistent support for arbitration, with limited grounds for judicial intervention and a track record of enforcing arbitration agreements and awards. The federal courts in the Southern District of Florida, including specialized judges experienced in complex commercial matters, provide an additional tier of judicial quality.

Foreign Attorney Representation: A Critical Advantage

Perhaps the most significant—and often overlooked—advantage of Miami as a seat is Florida's permissive approach to foreign attorney representation in international arbitrations. Under Rule 1-3.11 of the Rules Regulating The Florida Bar, ^⁴ lawyers admitted in other U.S. jurisdictions or in non-U.S. jurisdictions may appear in arbitration proceedings in Florida. For international arbitrations—broadly defined to include disputes involving foreign parties, property located outside the United States, contracts with foreign performance, or foreign investments—the requirements are particularly streamlined.

This rule has profound practical implications. When a dispute governed by Mexican, Colombian, Guatemalan, or any other Latin American law is arbitrated with Miami as the seat, the parties can retain their Latin American counsel to present arguments and examine witnesses on matters of substantive law. This approach offers several benefits: the attorneys presenting the case possess native expertise in the applicable legal system; they often have pre-existing relationships with the client and deep familiarity with the underlying transaction; and the arrangement typically results in meaningful cost savings compared to engaging entirely new counsel in the seat jurisdiction.

 

For in-house counsel, this means that choosing Miami as the seat does not require sacrificing the institutional knowledge and specialized expertise of trusted regional advisors. Latin American law firms with experience in international arbitration can serve as lead counsel, potentially working alongside local Florida counsel for matters specifically requiring knowledge of U.S. procedural law or for any court proceedings that may arise. This collaborative model leverages the strengths of both legal traditions.

Geographic and Cultural Proximity

Geographically, Miami offers unparalleled connectivity to Latin America. Direct flights connect Miami to virtually every major Latin American city, facilitating in-person hearings when necessary. The time zone alignment with much of the region simplifies scheduling for conferences and hearings. For parties and counsel traveling from Latin America, Miami requires no visa for many nationalities and offers familiar cultural and linguistic environments—Spanish and Portuguese are widely spoken throughout the legal and business communities.

The arbitration infrastructure in Miami has developed significantly. The Miami International Arbitration Society (MIAS), the ICDR's Miami office, and numerous law firms with dedicated international arbitration practices provide a deep pool of expertise. Hearing facilities, court reporters, translators, and other support services are readily available. The availability of bilingual arbitrators and counsel who understand both common law and civil law traditions is particularly valuable for disputes involving parties from different legal systems.

Considerations and Potential Challenges

Fairness requires acknowledging certain considerations that may affect the decision to select Miami as a seat. One area warranting attention involves interim measures and emergency arbitrator relief. While major arbitral institutions now provide for emergency arbitrator procedures, the enforceability of emergency arbitrator decisions in U.S. courts remains somewhat unsettled. The Federal Arbitration Act^⁵ does not expressly address emergency arbitrator awards, and courts have reached different conclusions regarding their enforceability. Parties anticipating a need for urgent pre-arbitration relief should evaluate this uncertainty with experienced arbitration counsel.

Similarly, the availability of court-ordered interim measures (known in civil law jurisdictions as medidas cautelares) operates differently under U.S. law than in many Latin American systems. While Florida courts can and do issue preliminary injunctions in aid of arbitration, the standards and procedures may differ from those familiar to counsel and clients accustomed to civil law provisional remedy frameworks. Latin American practitioners experienced in both systems can provide valuable guidance on how to structure requests for interim relief effectively in U.S. courts or through arbitral institutions.

Additionally, selecting Miami may create political or perceptual concerns for some Latin American parties or state entities. In sensitive disputes—particularly those involving government contracts or regulatory matters—a seat perceived as too closely aligned with U.S. interests may encounter resistance. In such cases, alternative neutral seats such as Paris, London, or Singapore may warrant consideration, though they sacrifice Miami's geographic, cultural, and linguistic proximity advantages. Experienced regional counsel can help assess whether these concerns are likely to arise and how to address them in negotiations.

The Value of Regional Expertise

The complexities surrounding seat selection underscore a broader point: effective arbitration planning requires counsel who understand not only the mechanics of international arbitration but also the specific legal and business context of the Latin American region. The interplay between substantive law, procedural law, and institutional rules creates numerous strategic considerations that can significantly affect dispute outcomes.

Law firms with deep roots in Latin America and experience across multiple jurisdictions in the region bring particular value to this analysis. They can assess how courts in different Latin American countries have interpreted arbitration agreements, advise on enforcement prospects across the region, and identify potential challenges based on local legal culture. When Miami is selected as the seat, these firms can serve as lead counsel while coordinating effectively with local Florida practitioners as needed.

For in-house counsel responsible for Latin American operations, building relationships with regional law firms that have demonstrated arbitration expertise is a worthwhile investment. These relationships provide access to practical guidance on drafting dispute resolution clauses, strategic advice when disputes emerge, and experienced representation throughout the arbitration process.

Practical Recommendations

For in-house counsel negotiating dispute resolution clauses in Latin American transactions, several practical recommendations emerge from this analysis. First, treat seat selection as a strategic decision deserving the same attention as governing law and institutional selection—consult with experienced arbitration counsel early in the contract negotiation process. Second, ensure the arbitration clause clearly distinguishes between the seat (with its jurisdictional implications) and any agreed venue for hearings, which may differ for convenience. Third, consider the types of disputes likely to arise and whether interim relief may be critical—if so, evaluate whether institutional emergency arbitrator provisions or court-ordered measures will better serve your needs, and discuss these questions with counsel experienced in both U.S. and Latin American approaches. Fourth, assess the counterparty's likely reaction to an extra-regional seat and whether a Miami seat may affect commercial negotiations. Fifth, identify and build relationships with Latin American law firms that have the expertise to guide you through these decisions and represent you effectively when disputes arise.

Conclusion

The seat of arbitration is not merely a geographic detail but a jurisdictional choice with significant legal consequences. For in-house counsel who have already determined that international arbitration provides a more reliable dispute resolution mechanism than Latin American courts, extending that logic to seat selection leads naturally to extra-regional options. Among these, Miami offers a unique combination of legal infrastructure, geographic convenience, cultural familiarity, and judicial reliability. Critically, Florida's rules permitting foreign attorney representation mean that choosing Miami does not require abandoning the expertise of Latin American counsel who know the applicable substantive law and understand the regional business context. While no seat is perfect, and specific transaction characteristics may counsel in favor of alternatives, Miami deserves serious consideration as a default choice for disputes in the region—particularly when paired with guidance from regional law firms experienced in navigating the complexities of Latin American international arbitration.

Endnotes

1. UNCITRAL Model Law on International Commercial Arbitration, G.A. Res. 40/72, U.N. Doc. A/40/17, Annex I (Dec. 11, 1985), as amended by G.A. Res. 61/33, U.N. Doc. A/61/17, Annex I (Dec. 4, 2006).

2. Convention on the Recognition and Enforcement of Foreign Arbitral Awards, June 10, 1958, 21 U.S.T. 2517, 330 U.N.T.S. 38.

3. Fla. Stat. §§ 684.0001–684.0035 (2024).

4. R. Regulating Fla. Bar 1-3.11 (2024). The rule permits lawyers admitted in other U.S. jurisdictions or non-U.S. jurisdictions to appear in arbitration proceedings in Florida, with streamlined requirements for international arbitrations as defined in the rule.

5. Federal Arbitration Act, 9 U.S.C. §§ 1–16 (2018).