The Development of Alternative Dispute Resolution in Venezuela
On the back of its adoption of the 1999 Constitution, Venezuela has undergone significant positive changes across its judicial system. The same is true for ADR, which is still making great strides.
Jorge Isaac González Carvajal, an independent arbitrator in Venezuela, shares the insights he has gained over a lengthy career in ADR and offers his predictions for how the sector will continue to grow.
In brief, could you please summarise the systems of alternative dispute resolution (ADR) available in Venezuela and the processes involved?
The dispute resolution system underwent a radical positive change in the 1999 Venezuelan Constitution. First, rights and guarantees of access to justice, due process and the right to defence are recognised under the traditional organisation and structuring of a professional, independent, and impartial Judiciary. But what is interesting is that the idea and concept of the ‘justice system’ are created by the Constitution as a set of actors and mechanisms that interact in and for the resolution of controversies. Parts of that system are the ADRs.
Obviously, the idea of the justice system is to think of the coordinated operation of a series of pieces that mesh to provide people with adequate mechanisms to resolve their disputes. So, for the justice system to work, it is necessary for the ADR sub-system – one of its cogs – to work.
Since the 1999 Constitution came into force, there has been support and promotion of ADR from the express provision of the Constitution. Thus, article 258 CRBV establishes: “The law will organise justice of the peace in the communities. Judges or justices of the peace will be elected by universal, direct, and secret ballot, under the law. The law will promote arbitration, conciliation, mediation, and any other alternative means for conflict resolution”.
This rule has been recognised as the constitutional foundation of ADRs, addressed to public powers (including courts) and of course to private parties. This places Venezuela in a pro-ADR position in tune with the global evolution of dispute resolution mechanisms.
What key Venezuelan statutes and legislation govern the practice of mediation, arbitration, and ADR more broadly?
There are currently laws that govern private arbitration (Commercial Arbitration Act of 1998) and justice of peace (Organic Law of the Special Jurisdiction of Communal Justice of Peace of 2012) and a flourishing jurisprudential doctrine in favour of alternative dispute resolution mechanisms (see judgments SC/TSJ No. 1541/08 published in Official Gazette No. 39,055 of 10 November 2008 [today leading case in arbitration], SC/TSJ No. 1067/2010, published in Official Gazette No. 39,561 of 26 November 2010, and SC/TSJ No. 1784/11 dated 30 November 2011).
The dispute resolution system underwent a radical positive change in the 1999 Venezuelan Constitution.
The Venezuelan Commercial Arbitration Act of 1998 is inspired by the 1985 UNCITRAL Model Law of International Commercial Arbitration, although with some peculiarities of the national idiosyncrasy. This law is adapted to the attempt and global desire to harmonise (and in some cases standardise) the arbitration practice.
Additionally, Venezuela is part of the 172 countries that have signed the 1958 Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention), which has been in force since 1995. Likewise, it is part of the Inter-American Convention on International Arbitration (Panama Convention of 1975), in force since 1985.
Unfortunately, Venezuela has not developed a law that governs mediation and conciliation, but there are regulations inside some legislation. Those are the Civil Procedure Code and the Labour Procedure Law. This last instrument establishes a mandatory mediation phase before the trial, which in practice has given very good results.
Venezuela is also a signatory party to the United Nations Convention on International Settlement Agreements Resulting from Mediation of 2019 (Singapore Convention on Mediation). Although it has not entered into force in the country, it shows the vocation and commitment for ADR promotion.
How have you witnessed the ADR landscape develop during your time as a practitioner?
The ADR landscape has been undergoing important development for more than 20 years. For example, in arbitration, since the adoption of the 1998 Law, the paradigm of understanding commercial arbitration has changed, giving way to a pro-arbitration regulatory framework. To this is added the 1999 constitutional normative provisions that, together with an early jurisprudence of the Supreme Court, have served as the basis for progressive and consolidated development of arbitration (and other ADRs mechanisms) in Venezuela.
This was evidenced in the increase in the number of arbitrations administered since 2000 by arbitral institutions in Venezuela which were slowed down by the severe crisis between 2014 and 2019, and with the arrival of the COVID era and with a gradual increase in recent years in arbitration cases administered by Venezuelan institutions.
Since the adoption of the 1998 Law, the paradigm of understanding commercial arbitration has changed, giving way to a pro-arbitration regulatory framework.
Some institutions oversee managing mediation and conciliation processes, independently or as an integral phase of arbitration proceedings, with satisfactory results. Subjects such as ADR, arbitration, or mediation have been incorporated into university curricula, both in undergraduate and postgraduate courses and important postgraduate educational programs in arbitration and mediation have been developed.
Interest in ADRs has increased in the legal community. I would say that the main reason is circumstances that affect the proper functioning of the judiciary, but not only this. Progress has been made gradually towards a general level of awareness of the advantages (and disadvantages) of ADR. In other words, the legal community has enough professional maturity to identify when to choose one way or another.
Are there any legislative or cultural obstacles to its more widespread adoption?
In general terms, I would not say that there are legislative obstacles against ADRs. On the contrary, both the Constitution and the laws and jurisprudence have been in favor of ADRs. And this is not new, since Venezuela has an almost bicentennial tradition, uninterrupted since its independence as a sovereign country, in favouring non-judicial dispute resolution mechanisms (e.g. arbitration).
I also don’t think there is a cultural obstacle. ADR, like any area of law, requires awareness of its existence, and of course, there is a particular ADR vision, which is often not in tune with the traditional culture of litigating in court. But as I have mentioned, more and more lawyers and individuals are incorporating ADRs as operating tools for their businesses.
Furthermore, for some time there has been a permanent academic and professional movement in the promotion and study of ADR, through workshops, congresses, courses, publications, or the creation of initiatives from which ADR is permanently promoted – for example, the creation and operation of the Venezuelan Association of Arbitration (AVA) or the Venezuelan Association of Mediation (AVEME).
What advice would you give to less experienced legal practitioners in your jurisdiction who may want to specialise in ADR?
My advice to less experienced legal practitioners in Venezuela would be to try to understand the general dispute resolution framework and how it works. From there, having a clear picture, get involved and specialise if that is your intention. This allows having a sufficiently general and useful vision to identify which problems can be submitted to one ADR mechanism or another. Everything must go hand in hand with a constant review of what is happening in the world, which is not difficult today since ADRs tend to be more global and uniform every day.
Do you have any expectations for how ADR will develop in Venezuela in the coming years?
I think it would be interesting to further develop the interaction between the bodies of the Public Power, the ADR community and ADR institutions (academic and professional). These bodies should focus on ADR’s promotion and seek to maximise its practical utility and promote the incorporation and recognition of new ADRs and the promotion and consolidation of traditional ADR methods, turning Venezuela into a pro-ADR international hub.
Jorge Isaac González Carvajal, Independent Arbitrator
González Carvajal Abogados
Tel : +58 414-100-5498
Jorge Isaac González Carvajal is an independent arbitrator with more than 18 years of experience in litigation and dispute resolution. As founder of González Carvajal Abogados, he primarily advises on avoidance and resolution of conflicts in legal, tort and contractual matters, as well as arbitration and litigation. He brings a wealth of experience in national and transnational litigation, oil and gas, commercial, maritime, agriculture and consumer law matters.