Rodrigo Garcia da Fonseca
Fonseca e Salles Lima Advogados Associados
Rua Visconde de Pirajá nº 142 - salas 201/203, Ipanema
22410-000, Rio de Janeiro, Brazil
Rodrigo Garcia da Fonseca garners praise from market sources for his stellar handling of domestic and international arbitration-related litigation.
Rodrigo Garcia da Fonseca is admitted to practice in Brazil and has more than 30 years of experience in domestic and international dispute resolution. He has participated in more than 200 arbitrations over the years, in different capacities, most of them as arbitrator. Mr. Fonseca is the president of the CAM-CCBC and the secretary-general of the Arbitration Commission of the Brazilian Bar Association in Rio de Janeiro. He is fluent in Portuguese, English, Spanish and French.
What inspired you to pursue a legal career?
When I applied to go to law school, I must admit I did not really know what I was getting into. Once I started to take classes, and particularly when I started to work as a trainee in a law firm, in my second year of law school, I realised I was lucky and had made an excellent choice. There are many different and interesting legal careers one can pursue, in different roles and various areas of the law. Dispute resolution became a passion for me early on. It puts the lawyer in contact with different industries and new subjects all the time. The lawyer who works with dispute resolution must be creative and develop strategic thinking to solve problems. Since I discovered this world, I have always found it fascinating.
What do you enjoy most about working in arbitration?
Arbitration usually involves interesting work with interesting people. There is always something new in each case and one is frequently working alongside excellent professionals in complex and cutting-edge disputes. Arbitration also has a high-level, vibrant and international community of practitioners, in which there is a lot of comradery. It is a very rewarding line of work.
In what ways have you noticed tribunals becoming more sophisticated and entertaining a greater variety of techniques in proceedings?
Cases are getting more complicated. Globalisation, new technologies, start-ups, new investors coming from different places, all this scenario makes for more complex transactions, and as a result, more complex disputes. One of the great advantages of arbitration is the flexibility of the proceedings. Many arbitral tribunals are realising that new challenges need to be dealt with new tools. On top of that, the covid-19 pandemic imposed the intensive use of virtual communications and changed some old habits. We are seeing tribunals being proactive in holding more management conferences with counsel and approaching the production of expert evidence or document production in different ways to make the proceedings less burdensome and more efficient. This is evolving a lot and we will see many changes and novel techniques in the coming years.
Could the rise of virtual hearings lead to a greater mix of different legal systems and arbitration institutions?
The use of virtual hearings has various different impacts. It is usually much cheaper and easier to schedule a virtual hearing than a regular one, as it does not involve any traveling. However, it also presents challenges, as when various people are in different time-zones. We should also not underestimate less objective issues, such as zoom-fatigue and the importance of personal connections and interactions that are just not the same through a screen as in-person. That being said, it is true that a widespread use of virtual hearings may stimulate the nomination of arbitrators from different countries, or the use of institutions in other places, as there should be no increase in costs associated with this. It may indeed deepen the already big internationalisation of arbitration.
It is reported that there is a new generation of arbitrators emerging who are increasingly specialised. How does increased specialisation benefit the arbitration market and what are the potential pitfalls?
Arbitration has to do with freedom of contract and freedom of choice. As a rule, it is always good to have more options, and the more diverse they are the better. The fact that parties can choose specialised arbitrators is in itself positive. A wider pool of arbitrators with different abilities is an excellent development. Whether these specialist arbitrators will perform satisfactorily in each case is another issue. The risk of excessive specialisation is that someone may focus only on one tree, and not on the whole forest. Sometimes the big picture is key.
More and more practitioners are leaving firms to set up their own arbitration boutiques. What are the main drivers for this in your experience?
Conflicts, conflicts and conflicts. It is very complicated to sit as arbitrator being a partner in a large law firm nowadays. Moreover, there is a market that so far has absorbed and welcomed most boutique firms with good arbitration practitioners.
What challenges did you face when setting up your own firm?
Coming from a large firm, setting up my own was a whole new world. Managing a firm, however small, is a big challenge that most lawyers are not used to. Hiring people, planning expenses, and at the same time keep on working in the cases and looking for more business was definitely not easy. After a while the routines were established, the train got on the tracks and everything went smoother.
What advice would you give to someone starting out as an arbitrator?
Be aware of the immense responsibility that is being chosen to decide a dispute by rendering an award that cannot be appealed. Do not go into any case with preconceived ideas. Every case is a new and different case. Always be prepared, on top of the file. Be humble and open to listening to counsel and to the other arbitrators. Remain independent, impartial and honest at all times. And never stop studying the law. If you do all this, plus some networking, there will be a bright future and a lot of cases ahead.