Rodrigo Garcia da Fonseca has 30 years of experience in the resolution of business disputes. He has participated in more than 200 arbitrations over the years, in different capacities, and nowadays acts frequently as arbitrator in domestic and international cases. He is the vice president of the arbitration commission of the Brazilian Bar Association in Rio de Janeiro and of the Centre for Arbitration and Mediation of the Brazil-Canada Chamber of Commerce.
What inspired you to set up your own firm and what challenges did you face?
I was a senior partner in a large and traditional law firm, Wald Advogados, where I worked for more than 20 years. At one point I wanted to make my own choices and get rid of conflicts, so I decided to go solo. I think leaving an established practice to restart anew, without being certain of how it would go, was the biggest challenge, but betting on myself paid off, and it has been a very rewarding experience.
Why did you decide to change your practice to focus on arbitration instead of litigation?
I practised mostly as a court litigator for many years. My previous firm was one of the first to get involved in arbitration in Brazil, about 20 years ago, and so I started to work as counsel in various arbitrations. When I started my own practice in 2013, I did not know if I was going to get more work in litigation or in arbitration. I would say the market chose for me, and pushed me towards arbitration and acting more as arbitrator.
What have been the highlights of your practice in the past year?
I was the chair in one of the first cases involving the Brazilian federal government, the Libra v CODESP case. It was a public case, a multimillion-dollar dispute related to a concession in the Port of Santos. The case was pending in court for more than 20 years, and when it was brought to arbitration, we started over again and rendered a partial award on the merits in 18 months, and a final award on damages in six more months. This was a leading case in Brazil, in many respects, and I am very proud of the work of the tribunal.
To what extent has maintaining expertise across a broad range of industry sectors benefited your practice?
My background as a business litigator was very helpful in arbitration. Having represented clients in numerous disputes in many areas gave me an important edge. It is very rare that I get appointed to an arbitration in which I am not familiar with the legal theories or the kinds of facts that are presented to the arbitral tribunal. Understanding a case is much easier if you have lived through similar cases in the past.
What impact has your work and experience as counsel had on your approach to proceedings when acting as arbitrator?
Although I sit frequently as an arbitrator, I will always remain a lawyer. I have deep respect for the work of counsel, and while conscious of the powers of the arbitral tribunal, I always try to accommodate their needs to properly present their case. I also never assume counsel have made a mistake, or failed to present a good argument. Counsel know the facts and the case much better than the arbitrators, so if they choose to pursue a certain line of argument, there must be good reason for them to do so.
To what extent can virtual hearings be relied on to decide high-stakes multibillion-dollar cases between parties?
Completely virtual hearings are still a new experience, but the covid-19 pandemic has accelerated the process, and they are now here to stay. However, everyone is still adapting. I believe the short-term big cases will tend to have mixed hearings – partly virtual, partly face-to-face. Looking people in the eye, and meeting face-to-face, still has value for counsel, the parties and the arbitrators.
What are the key challenges younger practitioners may face in their practice and how can they overcome these?
Younger practitioners should look in a good law firm for a good, established lawyer who can be a mentor. This will enable them to gain the experience that they need to break through the ranks and become known in the market. There are no shortcuts in life, and it takes time to build a name. And of course, there are no substitutes for a lot of study and hard work throughout one’s whole career.
What is the best piece of career advice you have ever received?
“Always believe in yourself.” Whether you have been hired to represent a client, invited to speak in a conference or appointed as an arbitrator, other people trust in your capabilities, and you deserve to be there, so you should not doubt yourself.
Rodrigo Garcia is "one of the go-to arbitrators at the moment", and is described as "one of the best lawyers around: dedicated and experienced".
With more than 25 years of experience, Mr Rodrigo Garcia da Fonseca’s practice focuses on dispute resolution, including arbitration and court litigation. Over the years, Mr Fonseca has acted in several high-profile cases in various areas of business law, in Brazil and abroad. He acts both as counsel and arbitrator, in domestic and international proceedings under the rules of various institutions, as well as in ad hoc cases. He also has extensive experience in arbitration-related court litigation. Mr Fonseca is a member of the ICC Latin American arbitration group, the vice president of the arbitration commission of the Brazilian Bar Association, Rio de Janeiro section, and the vice president of the Center of Arbitration and Mediation of the Brazil-Canada Chamber of Commerce (CAM-CCBC). He was one of the coordinators of the pro bono arbitration counsel programme providing legal assistance and representation before the Court of Arbitration for Sport (CAS) ad hoc divisions during the Rio 2016 Olympic Games, and was certified by the Dispute Resolution Board Foundation to participate in dispute boards in contracts related to the Rio 2016 Olympic and Paralympic Games. Mr Fonseca is a member of the lists of arbitrators of various institutions and was the chief editor of the Brazilian Journal of Arbitration and Mediation from 2004 to 2013. He is a lecturer in arbitration matters at the Superior School of Advocacy of the Brazilian Bar Association, in Rio de Janeiro. He has authored several legal articles and is a frequent guest speaker on courses and at conferences and seminars in Brazil and abroad. Mr Fonseca is fluent in Portuguese, English, French and Spanish.
Rodrigo Garcia da Fonseca is “simply one of the very best Brazilian arbitrators in the market” thanks to his “strong expertise and comprehensive experience in private and commercial cases”.