Search terms: Arbitration, Argentina
The Arbitration Rules of the Buenos Aires and Rosario Stock Exchanges provide for arbitration in equity, rather than arbitration in law, as the default option in case of dispute. Although legal opinion supports both methods of arbitration, neither appears to have an advantage. Rather, this depends on the circumstances of each case.
Internationally, there is a tendency to give greater priority to the final and binding character of an arbitral award than to judicial revision, which is limited to exceptional grounds and restricted interpretation. Argentine jurisprudence has also adopted this approach.
The Federal Supreme Court of Justice has held that general waivers to challenge arbitral awards are not applicable in cases of arbitrariness. The court recognized that awards of the Public Works Arbitration Panel are subject to judicial review in cases of arbitrariness, even if the parties have renounced the option to challenge such an award in advance.
In a recent judgment the Federal Court of Appeals decided to accept the precautionary measure requested by the Argentine government and ordered the suspension of an arbitration before the International Centre for Settlement of Investment Disputes until the initiated action to set aside was decided upon.
The Supreme Court of Justice has held that an award rendered by the Arbitral Tribunal of Public Works was invalid, given that there was no agreement between the plaintiff and the cited state-owned corporations to submit disputes to arbitration. The tribunal had ordered the defendants to pay a large sum as compensation for what it considered to be costs and damages suffered by the plaintiff.
In a recently published decision the Supreme Court of Justice has reaffirmed the legal value of arbitral agreements by confirming the validity of waivers of the right to challenge arbitral awards agreed by parties that have freely chosen arbitration as a system of dispute resolution. The court declared inadmissible a challenge to the denial of an extraordinary appeal brought directly against an arbitral award under various legal provisions.
The ICSID arbitration tribunal has found that the Argentine government breached the provisions of the foreign investment protection treaty between Argentina and Germany in terminating a contract with Siemens AG under the terms of the Emergency Law 2000. The contract was for the provision of services for immigration control, personal identity cards and electoral information.
The committee constituted within the International Centre for the Settlement of Investment Disputes to consider a request for annulment filed by the Argentine government has decided to maintain the stay of enforcement of an award until the request for annulment is resolved.
An arbitral tribunal of the International Centre for Settlement of Investment Disputes (ICSID) has rendered the final award in Azurix Corp v The Argentine Republic (ARB/01/12). This is the second award rendered by an ICSID panel as a result of the emergency measures taken by the Argentine government during the crisis period of 2001 to 2002.
In a recent decision the Commercial Court of Appeals applied the principle of autonomy of arbitration strictly. Under this principle, state intervention during the arbitration procedure is exceptional and limited to assistance and cooperation.
The Commercial Court of Appeal has held that a party may file a request for precautionary measures with the courts, and such a request is not a violation of the arbitration agreement. This position is upheld not only by the Arbitration Rules of the General Arbitral Tribunal of the Buenos Aires Stock Exchange, but also by international arbitration rules.
The National Commercial Court of Appeals has confirmed a lower court decision granting an interim measure in favour of the claimant in an international arbitration, which had not yet been initiated, even though the contract between the parties was subject to foreign law.
The Commercial Court of Appeals has confirmed a lower court decision dismissing the defence filed by the defendant at the judicial enforcement procedure of an arbitral award, even though a judicial set-aside claim had been lodged.
The Supreme Court has held that Argentine tribunals lack the jurisdiction to decide commercial claims where there is an arbitration clause. It held that arbitrators may rule on their own jurisdiction, but this decision is subject to review by the courts in accordance with the United Nations Commission on International Trade Law Model Law.
A final award has been rendered in the arbitration between CMS Gas Transmission Company and Argentina brought under the rules of the International Centre for the Settlement of Investment Disputes and the Bilateral Investment Treaty executed between Argentina and the United States.
Two judicial decisions relating to local arbitration proceedings have recently been published. In the first, the court of appeal dealt with the jurisdiction of arbitrators to declare the unconstitutionality of the public order regulations enacted as a consequence of the public emergency declared in 2002.
A July 2003 decision of the Tribunal of the International Centre for the Settlement of Investment Disputes was recently published. Among other matters, the decision addresses objections to the centre's jurisdiction in the arbitration procedure between the CMS Gas Transmission Company and Argentina.
A federal lower administrative court has granted the preliminary measures requested by Entidad Binacional Yacyretá against an international arbitral tribunal under the International Chamber of Commerce Arbitration Rules to obtain a stay of the proceedings until a challenge against the arbitrators has been settled and the terms of reference approved.
The Rosario Stock Exchange Arbitral Tribunal recently held that arbitrators have jurisdiction to declare the unconstitutionality of federal laws. It based its decision on the principle that arbitrators have powers equal to those of judges (other than coercion and execution), which arise from the arbitration agreement executed by the parties.