Two Key Considerations on Infrastructure and Energy Disputes with the Arbitral Seat in Latin America
At first glance, the history of international arbitration in Latin America would appear to be a fait accompli. Moving from closed protectionist systems towards arbitration-friendly legislations should be seen as a positive step for the practice. It is premature, however, to believe that all the work has been done, and that the field is completely clear for foreigners to switch their preferred seats of arbitration to Latin American capitals. Such a decision must not be taken lightly.
Even though a clear framework for arbitration has developed in most Latin American jurisdictions, important issues must still be considered. In the context of energy or infrastructure projects, perhaps the most relevant challenges include the 'constitutionalisation' of arbitration (and more specifically, the constitutional-protection actions that come with it, such as amparo actions, also known as tutelas in other countries), as well as the sometimes unclear legislation regarding commercial arbitration with state entities and the non-arbitrability of state contracts.
In the context of infrastructure or energy projects, these challenges become even more relevant. First, it is likely that infrastructure and energy or natural resource contracts will directly or indirectly involve state entities, and thus limitations inherent to arbitration could prove especially difficult. Second, constitutional protections may be available as a tool to limit either arbitration proceedings or the enforcement or annulment of the award.
This chapter will give an overview of the challenges faced throughout Latin America and the evolution of commercial arbitration in the region in recent years.2
A complex background
There was a time when Latin America was considered to be a hostile environment for international arbitration. There were few legislative assurances that could grant the investors or private parties enough security to trust a local system, and there was a tendency to protect domestic parties over foreigners. Incentivised by economies generally closed to foreign trade, certain legal doctrines arose to enforce or echo this protectionism. Among those, the Calvo Doctrine is probably the most recognised: it mandates that foreigners are given no preferential treatment over local citizens, and effectively forces foreigners to sue in local courts and be subject to local law.3 The adoption of this doctrine stifled the development of international arbitration in the region for a long time.
The Calvo Doctrine and other similar obstacles were eventually toppled by the manifest destiny of globalisation.4 Almost all Latin American countries left behind the old protectionist regimes through the adoption and ratification of the main international conventions regarding arbitration. In particular, the ratification of the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards by most Latin American countries,5 coupled with its worldwide approval, served as a trigger to open the region to this new globalised practice. The evolution was such that, some years later, in 1975, a regional convention to regulate the enforcement of international awards, the Inter-American Convention on International Commercial Arbitration (also known as the Panama Convention),6 was also adopted and ratified by most Latin American countries.
These international conventions, however, were not enough. By the 1990s, there was still only a limited legal history on which foreigners could rely on to be confident that they had the option of avoiding local courts and seek arbitration proceedings seated in Latin America. The general acceptance of the notion of international arbitration was still under construction, and further steps were needed.
Then, the 'international soft law' (non-binding documents drafted by international organisations that suggest a certain approach or regulation on a specific matter) came into play. In 1985, the United Nations Commission on International Trade Law, (UNCITRAL) issued a model arbitration law that countries could mirror when legislating and regulating international arbitration (the UNCITRAL Model Law). This 'unification' of approaches towards international arbitration proved to be a successful tool to promote international arbitration in Latin America. By leaving behind local procedural regulations and challenging the protracted concept of a heavily defined proceeding, Latin American countries liberated themselves from their local perspectives and began to adopt new arbitration laws based on the accepted international standards embodied in the UNCITRAL Model Law.
The first country to adopt the UNCITRAL Model Law was Mexico, which by 1993 had a unique and distinctive arbitration law that changed the general conception of this dispute resolution method. The movement in favour of arbitration spread throughout the region, and by the mid 2000s, most countries had new arbitration laws generally following the UNCITRAL Model Law.7 In 1997, Bolivia, Costa Rica and Ecuador joined the ranks; Colombia's and Venezuela's Congresses enacted their arbitration laws in 1998; followed by Honduras, Chile, El Salvador, Nicaragua, Paraguay, Peru and the Dominican Republic between 2000 and 2010.8
Although each law had its minor variations, including legacies from local systems, by 2010 most countries in the region were equipped with generally stable arbitration frameworks that, overall, met a consistent international standard. Moreover, some even updated their arbitration laws to reflect the new UNCITRAL Model Law issued in 2006. For example, Peru issued its arbitration law in 2008 based on the 2006 UNCITRAL Model Law and Colombia enacted a new arbitration law in 2013, also following the new UNCITRAL Model Law, both with only minor modifications.9
Other countries joined later. For instance, Argentina resisted changing its arbitration law until 2015, when it first modified the Commercial Code and expressly introduced some international arbitration principles. Some other countries, however, criticised those modifications for not following the UNCITRAL Model Law and for including provisions not necessarily up to the international standard.10 As such, in July 2018 Argentina enacted Law 27,449 on international commercial arbitration finally adopting the UNCITRAL Model Law.11
Due to this evolution12 of both substantive laws and general attitudes towards international arbitration, and considering the starting point decades ago, most authors concede that Latin America has made significant improvements in favour of international arbitration. As one commentator noted, there is finally a 'comfortable place for international arbitration in Latin America'.13 Others conclude that the region has built a 'resilient framework'.14
This new framework has also received a quantifiable recognition of success. In the latest statistical reports of the International Chamber of Commerce (ICC) for 2015, Mexico City appeared as one of the top-10 cities selected as the seat of arbitration, with a total of 12 cases filed in 2015.15 The trend for Latin America continued throughout 2016.16 The latest statistics for 2017 also reveal an 8 per cent increase in the number of cases related to Latin American parties. More importantly, Latin American countries served as the seat for 10.3 per cent of all ICC cases, and 'Brazil and Mexico are both ranked among the ten first countries selected as places of arbitration and respectively hosted 28 and 18 ICC arbitrations in 2017.'17
While this is indeed advancement, in a recent survey by Queen Mary University, the preferences of users of international arbitration showed that Latin American cities are still far from being considered preferred seats of arbitration. Instead, London, Paris, Hong Kong, Geneva, Singapore and New York remain the top choices.18 Importantly, Miami appears to be the new preferred seat for disputes relating to Latin American parties, as the arbitrations seated in Miami under the American Arbitration Association and International Center for Dispute Resolution rules more than doubled in the past four years, and ICC statistics demonstrate that Miami has consolidated itself as one of the preferred seats in the United States. This is also driven by the number of cases relating to Latin American parties, which increases year by year, as companies from the region become repeat players in the system. For example, in the 2015 ICC Statistics report, 17 per cent of the cases filed that year related to Latin American parties, and as per the latest ICC Statistics report, in 2016 the number of cases involving Latin American parties increased by 15 per cent.19
The Queen Mary University survey also addressed the key elements that make it so difficult to change users' preferred seats. According to that study, the most important factors that parties consider when choosing their arbitral seat are: '(1) neutrality and impartiality of the local legal system; (2) national arbitration law; and (3) track record for enforcing agreements to arbitrate and arbitral awards.'20
As can be inferred, legislative recognition of international arbitration is only one of the many factors that private companies consider when dealing with an international dispute in Latin America. The improvement of the region is merely one element of the equation, and the other factors are being addressed at a slow pace. The following sections explain certain possible obstacles that could be encountered in this evolution.
The constitutionalisation of arbitration and the resulting boomerang effect
The theory of 'constitutionalisation' refers to the direct application of fundamental norms included in the constitution of a country. Rather than limiting the constitution to a compendium of high-level ideological norms, constitutionalisation purports to give direct and practical application and access to whatever principle or norm features in the fundamental text.21 This theory has been embraced in Latin America generally, and arbitration is no exception.
In past decades, arbitration has been included directly in the constitutions of several Latin American countries. For instance, Costa Rica, El Salvador and Honduras all included the right to arbitrate as a fundamental right in their constitutions (in Articles 43, 23 and 100, respectively). More recently, in 2011, Mexico reformed its Federal Constitution, to include access to alternative dispute resolution methods as a fundamental right.22 Other countries include arbitration in the constitutional articles regarding 'judicial power', as is the case for the constitutions of Colombia, Ecuador and Paraguay in Articles 116, 190 and 248, respectively. In some cases, constitutions suggest that arbitrators are temporarily vested with the same power to administer justice that a local judge would have.23
On the spectrum of legislation favouring and opposing international arbitration, one would think that the constitutionalisation of arbitration would be a powerful tool to protect arbitration. What else could have higher priority than a constitutional norm? What could be more protected than a fundamental right? And, moreover, who could obstruct arbitration if it is regarded as part of the fundamental text of a country? Seemingly, no higher protection could be granted.
With constitutionalisation, however, parties have direct application to the norms and fundamental protections contained within the Constitution. This is where the amparo actions play an important role, as they can be filed and processed on an expedited basis whenever an official or public authority violates a constitutional right. In the context of arbitration, amparo actions should have served as tools to enforce arbitration as a fundamental right. In practice, however, these actions have ironically become tools that threaten arbitration through the creation of litigation opportunities to challenge the jurisdiction of the arbitral tribunal, or the award itself.24 Some have even filed constitutional actions directly against arbitral institutions.
Moreover, the notion of arbitrators as part of a judicial system, with jurisdictional power to administer justice, opened the window to treat arbitrators' decisions the same way judicial decisions are treated. Under the constitutionalisation theme, because judges are public officers and are in charge of administering justice and due process, their decisions are subject to amparo actions for purpose of protecting fundamental rights.25 Therefore, judicial decisions can be challenged under the argument that, for instance, due process has been obstructed.
Some took advantage of this and argued that, by analogy, arbitrators' awards should also be subject to amparo protection, as arbitrators are considered to administer justice under the Constitution.26 In short, amparo protections resulted in a new recourse to challenge decisions during the arbitration proceeding, and annulment was no longer the sole action to contest an international arbitration award.
Several courts throughout the region adopted this secondary challenge to arbitration awards. The Constitutional Section of the Supreme Court of Venezuela,27 Chilean Constitutional Court,28 and the Constitutional Court of Colombia29 have openly stated that arbitrators are subject to those countries' constitutions and, thus, their decisions can be questioned through amparo actions. In Venezuela, a court vacated an international award after an amparo action was filed, under the rationale of protecting 'Venezuelan public policy'.30 Peruvian courts similarly affirmed that the powers of the arbitrators derived ultimately from the Constitution, based on their exercise of judicial power.31 To cite another example, Mexican courts annulled the PEP v. Commisa award through an amparo action, although the award was subsequently confirmed in US courts nevertheless.
While the constitutionalisation of arbitration was intended to serve as a protection of the system, it also had the boomerang effect of creating an additional basis of challenge to an award.32 The amparo actions became the biggest enemy of international arbitration in the region, seen as a local law particularity, rare to those outside the region and used to obstruct and threaten the progress made in favour of international arbitration.33
After the red flag was raised, practitioners, legislators and courts began to realise how amparo protection was obstructing international arbitration. As a result, more recently, the pendulum has started to shift back to the centre, and some countries have drawn limits to protect international arbitration from this local mannerism.
For example, in 2011, the Peruvian Supreme Court expressly modified its previous decisions and stated that amparo protection is not available against international awards, highlighting that the only action against an award should be an annulment request. The court did leave some opportunities open that might justify the use of amparo against awards, but carefully delineated the specific conditions and requisites that must be met for this to happen.34 Echoing the Peruvian initiative, Mexican courts now appear to be clear on the fact that neither arbitrators nor awards are subject to amparo protection,35 and Chile followed the same line of decisions.36 Panama has similarly clarified this fact in its recent arbitration law.37
Although it appears that the uncertainty is in the process of being resolved, and limits are being drawn to prevent the direct use of constitutional actions against arbitral tribunals, arbitral institutions and the resulting awards, there is still no limitation to using amparo actions against a judicial decision that resolves the request to vacate or enforce the award or, in fact, against any other judicial decision concerning the arbitration proceedings.38 This is the amparo indirecto, the indirect application of the amparo protection. Instead of filing the action against the award, the indirect use of the action occurs when the amparo is filed against a judicial decision on any arbitration-related issue.
The constitutionalisation theory is well settled in Latin America, and judicial decisions remain subject to constitutional review for any alleged violation of a fundamental right. Considering that arbitration is not yet a self-sufficient system, local courts may well intervene in an arbitration proceeding in one way or another – through decisions enforcing arbitral agreements, decisions on preliminary measures, annulments or the enforcement of awards. As such, avoiding the indirect amparo action may be difficult or impossible.
For now, the region's efforts to meet international standards have been valuable and, as time passes, obstacles will continue to fall. Yet, constitutionalisation remains a significant issue, and any change that would free arbitration from this particularity appears to be years away.
State entities in arbitration: the limits
Infrastructure and energy projects have an intrinsic public purpose, and most, if not all, will entail a contractual relationship with state entities. As would be expected, contractual relationships with state entities are heavily regulated and susceptible to detailed and burdensome regulations before and during the life of the contract. Dispute resolution is no exception.
While some problems may remain with the region's arbitration framework – despite the clear evolution to be more in favour of arbitration – at least those issues are known and can be understood. The situation is less clear with regard to arbitration with state entities.
Some countries have at least freed themselves from the idea that state entities should not be able to arbitrate, or that certain administrative decisions are not arbitrable; Chile, Costa Rica, Panama, Guatemala and Peru are all good examples. In those countries, there is no limitation, restriction, or special regulation for arbitration regarding state entities or state contracts. Thus, a state entity is subject to the same regime a private party would be, without any additional burden.
Honduras and Peru have gone even further. Back in 2013, Honduras issued a decree that dispute resolution boards are required for all disputes related to state entities.39 Peru followed the same path. Pursuant to Article 45 of Peru's public contracts law, all disputes regarding state contracts are subject to arbitration, including those attempting to nullify the contract,40 and, in a recently issued decree, Peru added the availability of 'dispute resolution boards' as another alternative to court actions.41
As positive as it may sound, this approach has a downside: the imposition of arbitration and dispute resolution boards implies extensive government regulation of the arbitral process. For instance, the aforementioned Peruvian decree introduced several rules regarding the arbitration claim, the response, the nomination and challenge of arbitrators, and some other issues that are normally defined by agreement of the parties and self-policed. Thus, even though it is indeed a point in favour of arbitration, there are supervisory issues to consider whenever there is a need to submit a dispute to arbitration in Peru.
On the other hand, Mexico and Colombia have decided to impose certain limitations on state entities' freedom of contract, and to attach some of the disputes to the local system. While Mexico had generally been opening its doors to international arbitration, and courts have even limited the use of amparo (as discussed above), in 2014, the Mexican government enacted the Hydrocarbon Law, which contains interesting provisions limiting the scope of arbitration.
First, although the Hydrocarbon Law provides that disputes regarding exploration and exploitation contracts can be submitted to arbitration, it contains an exception: disputes regarding the administrative rescission of a contract cannot be subject to arbitration.42 In other words, if the state entity unilaterally terminates the state contract, asserting one of the grounds set forth by the law, that decision cannot be raised before an arbitral tribunal. This limitation has been reflected in the Mexican model production-sharing contract terms from 2015,43 which specifically set forth that the rescission decision is not arbitrable. This restriction excludes an important portion of the possible disputes.
Second, the Hydrocarbon Law provides for two specific limitations: (1) contracts must be subject to Mexican law; and (2) arbitration proceedings must be conducted in Spanish.44 These two rules could be seen as a way to protect the local state entities, allowing them to avoid foreign laws and languages that are unknown to the local officials. Certainly, foreign investors may not necessarily feel comfortable under Mexican law or with Spanish as the predominant language of the proceeding, and that can also create the need for local counsel. Thus, these regulations should be taken into consideration when pursuing due diligence on a project.
Regarding Colombia, in 2007, before the new arbitration law was enacted, the Constitutional Court set out an additional limitation on arbitrability: arbitral tribunals cannot solve disputes regarding the exercise of 'exceptional powers clauses' such as unilateral modification or termination of the contract. While the 'economic consequences' of such decisions can be subject to arbitration, the decisions themselves can only be challenged through administrative proceedings.45 This approach creates an additional burden because, by dividing the subject matter into the 'exercise' of the clause and the 'consequence' of it, the Constitutional Court is suggesting that there should be two proceedings, either concurrent or consecutive. This may not be the most efficient approach, and is certainly an issue to consider when entering into state contracts.
Aware of this restriction, Colombia's international arbitration law included a special provision that could potentially mitigate the consequences. Specifically, Article 62 of Law 1563 of 2012 provides that, for international arbitrations, state entities cannot argue their own incapacity to arbitrate based on domestic law provisions. How this will work in practice, however, remains to be seen.
In addition to the subject-matter restriction, on 23 December 2015, a presidential directive in Colombia was issued adding additional new matters to be considered when entering into state contacts. Under the directive, before entering into an arbitration agreement, the secretary general of the state entity that is a party to the contract must issue an opinion to justify the 'public policy' reasons justifying the need to divest Colombian courts of jurisdiction, in favour of submitting the dispute to an arbitral tribunal.46 Also, the directive provides that, in the case of international arbitration, state entities may only nominate arbitrators that are well versed in Colombian law and that have knowledge of the subject matter in dispute. While this may promote the appointment of local arbitrators, it will not necessarily promote international arbitration overall.
Again, infrastructure and energy contracts frequently involve state entities and state contracts. Parties looking to do business in Colombia will want to make sure to conduct extensive due diligence to assure the arbitral agreement will be enforceable and to avoid entering into a contract that cannot be enforced by an arbitral tribunal.
Finally, apart from Colombia and Mexico, which have subtle but important provisions limiting arbitration with state parties, other countries – such as Bolivia and Ecuador – have incorporated additional limitations. In response to a recent increase of investment arbitration claims against those states, and perhaps coupled with the political tendencies of the governments,47 Bolivia and Ecuador have modified their constitutions to prohibit investment arbitration between the state and foreign investors.48
Article 366 of the Bolivian Constitution expressly provides that 'any foreign enterprise that conducts activities in the hydrocarbons production chain in the name and representation of the state shall be subject to the sovereignty of the state'. Moreover, '[n]o foreign court or foreign jurisdiction shall be recognised.' In furtherance of this modification, Bolivia's new Arbitration Act determined the restricting terms under which investors could eventually arbitrate in Bolivia, and provided that disputes relating natural resources, access to public services or matters of public policy, are not arbitrable. The said restriction carves out a number of important infrastructure and energy contracts that could have eventually be submitted to arbitration. The good news, though, is that public entities may include arbitration agreements in their construction, services or purchases contracts.49
Ecuador's constitutional reform (Article 422 of Ecuador's Constitution) was expressly directed to prohibit Ecuador from entering into international treaties and instruments that limit the sovereignty of the state, by submitting commercial or contractual disputes to international arbitration. The article aims to prohibit limitations through international treaties, this raises the question of whether international arbitration clauses can still be included in state contracts executed with foreign investors, and thus it remains to be seen if it will affect international commercial arbitration. Moreover, even in the scenario where Article 422 does not affect commercial international arbitration with state entities, Article 190 of the Constitution still needs to be considered as a limitation, as it mandates for the State Attorney General to approve the inclusion of arbitral agreements in state contracts.
Conclusion: key considerations on infrastructure and energy disputes in Latin America
The primary consideration when assessing a seat of arbitration in Latin America is that Latin America is made up of many individual countries with different cultures and different economic and political agendas at different points in time. The fact that various countries have similar laws on paper and that the region as a whole is trending towards a greater acceptance of arbitration does not change the need to assess the particularities of the country under consideration as the seat of arbitration.
Going forward, as Latin America continues to embrace international arbitration, companies should closely monitor any decisions regarding state entities and amparo protections. In so doing, never assume that the evolution in one country will be the same as in another. The arbitration law adopted by any given Latin American jurisdiction is still not enough assurance, as the internal stability and neutrality of the seat of an international arbitration requires more than laws on paper.
Nevertheless, certain common denominators across jurisdictions can serve as a basis to draw some general conclusions on infrastructure and energy disputes in Latin America.
First, although statistics show increased recognition of the new, more favourable arbitral frameworks, users of international arbitration remain conservative when choosing their arbitral seats. Latin American cities are increasingly selected as the juridical seat of arbitration, but more must be done before users of arbitration trust the region to be a considered the 'go-to' seat for their disputes.
Second, the reason Latin America has not yet become a world leader in arbitration is due to the need to have a neutral and impartial local system, and the fact is that Latin American countries are not yet projecting that image. The implications of constitutionalisation and the uncertainty of possible amparo protection actions, coupled with the possible complications with arbitrations against state entities, make it difficult for the region to become a preferred seat.
Nevertheless, Latin America's advancements in arbitration are undeniable and much of the necessary foundation has been laid. This foundation includes many of the necessary laws, recognised and professional arbitration institutions, a sophisticated counsel and arbitrator bar and premium facilities equipped with the necessary technological capabilities. With this base, and the advancements made in the past two decades, Latin America projects as a potential leader in international arbitration.
1 Daniel E González is a partner and global head of the international arbitration practice and Juliana de Valdenebro Garrido is a foreign associate at Hogan Lovells.
2 This chapter is limited to commercial arbitration and does not address investment arbitration matters.
3 Guido Santiago Tawil, 'On the Internationalisation of Administrative Contracts, Arbitration and the Calvo Doctrine', Arbitration Advocacy in Changing Times, Rio ICCA Congress Series, 15 at 327327 (Editor: Albert Jan van den Berg) 2010.
4 William D Rogers, 'Of Missionaries, Fanatics and Lawyers: Some thoughts on Investment Disputes in the Americas.' 72 American Journal of International Law, 3-6 (1978).
5 The New York Convention was ratified by the following countries: Mexico (1971); Chile (1975); Cuba (1975); Colombia (1979); Uruguay (1983); Guatemala (1984); Panamá (1985); Peru (1988); Costa Rica (1988); Argentina (1989); Bolivia (1995); Venezuela (1995); Paraguay (1998); El Salvador (1998); Honduras (2001); Brazil (2002); Dominican Republic (2002); and Nicaragua (2003).
6 Jonathan Hamilton, 'Three Decades of Arbitration in Latin America', University of Pennsylvania Journal of Business Law, 1099 (2008–2009).
7 In 1996, Brazil enacted its arbitration law based on the UNCITRAL Model Law, however, due to the particular complexities and fundamental differences between the history of that country and of the rest of the region, we will not deal directly with this country in this chapter.
8 Cristian Conejero, 'El Arbitraje Comercial Internacional en Iberoamérica'. Marco Legal y Jurisprudencial, 65 (2009).
9 Latin Lawyer Reference, Colombia (April 2016) found at http://latinlawyer.com/reference/topics/45/jurisdictions/8/colombia/.
10 Emmanuel E Kaufman, Knoetzl, 'The New Argentinian Legislation on Arbitration: Shift into First Gear or Reverse?', Kluwer Arbitration Blog (19 January 2016), http://kluwerarbitrationblog.com/2016/01/19/the-
11 Tom Jones, 'Argentina and Uruguay pass new laws based on UNCITRAL Model', Global Arbitration Review, 6 July 2018, https://globalarbitrationreview.com/article/1171474/argentina-and-uruguay-pass-new-laws-based-on-uncitral-model.
12 Ricardo Dalmaso, 'Report on the Lunch Seminar: Latin America: Hottest Issues, Country by Country.' (Miami 2014), in 18 ICCA Congress Series (Van der Berg ed, 2015) (referring to Doak Bishop's presentation on the Substantial Evolution of International Arbitration in Latin America).
13 Dalmaso, at 920 (referring to Katherine Gonzalez's presentation).
15 'ICC Dispute Resolution Statistics (2015).' ICC Dispute Resolution Bulletin (2016).
16 'ICC Dispute Resolution Statistics (2016).' ICC Dispute Resolution Bulletin (2017).
17 'ICC, ICC Court releases full statistical report for 2017 (31 July 2018) https://iccwbo.org/media-wall/news-speeches/icc-court-releases-full-statistical-report-for-2017/.
18 2015 International Arbitration Survey: Improvements and Innovations in International Arbitration, Queen Mary University, White & Case, School of International Law, 12 (2015).
19 'ICC Dispute Resolution Statistics (2016).' ICC Dispute Resolution Bulletin (2017).
20 Idem at 14.
21 Mathieu M Verpeaux, 'Droit Constitutionnel.' Paris, PUF, 19 (2004).
22 Dalmaso, at 920; see also Article 17 of Mexico's Federal Constitution.
23 Conejero, at 92.
24 Alfredo de Jesus, 'La autonomía del arbitraje comercial internacional a la hora de la constitucionalización del arbitraje en América Latina.' 2(1) Revista de Arbitraje Comercial y de Inversiones (2009).
25 Dalmaso, 919 (referring to Katherine Gonzalez's presentation).
26 Conejero, 94.
27 Sala Constitucional del Tribunal Supremo (Venezuela), Sentencia No. 1393, (5 October 2000).
28 Tribunal Constitucional (Chile), Rol No. 420 (25 August 2004).
29 Corte Constitucional (Colombia), Sentencia T-481 (11 May 2005).
30 Gabriel Castillo Bozo v. ICDR Int'l Arbitral Award (Amparo Constitucional), First Superior Court of Justice in Civil, Mercantile and Transit Matters of Caracas (22 April 2013), found in Andres Jana, International Commercial Arbitration in Latin America: Myths and Realities, Journal of International Arbitration (2015).
31 Tribunal Constitucional (Perú) Sentencia (18 February 2006).
32 De Jesus, 37.
33 Manuel A Gómez, 'The 'Amparization' of the Justice System in Latin America and International Arbitration.' Kluwer Arbitration Blog (1 November 2013), http://kluwerarbitrationblog.com/2013/11/01/the-
34 Tribunal Constitucional del Perú, Sentencia (21 September 2011), https://www.ambitojuridico.com/BancoConocimiento/Educacion-y-Cultura/breves-consideraciones-sobre-las-acciones-constitucionales-en-el-arbitraje-internacional.
35 Tribunal Colegiado Civil del Primer Circuito (Mexico) Sentencia 195/2014, found in Cecilia Flores, 'Does The New Amparo Law Threaten Arbitration In Mexico?' (Kluwer Arbitration Blog) (24 October 2015).
36 Alejandro López Ortiz and Gustavo Fernández, 'A Year of Legal Developments for International Arbitration in Latin America.' Kluwer Arbitration Blog (11 January 2016), http://kluwerarbitrationblog.com/2016/01/11/a-year-of-legal-developments-for-international-arbitration-in-latin-america/.
37 Panama Arbitration Law, Article 66, Law 131 of 31 December 2013.
38 Andrés Jana L, 'International Commercial Arbitration in Latin America: Myths and Realities', 32(4) Journal of International Arbitration pp. 413–446 (2015).
39 López Ortiz.
40 Ley 30225 de la República de Perú.
41 Decreto Supremo No. 350-2015 EF de la República de Perú.
42 Decreto por el que se expide la Ley de Hidrocarburos y se reforman diversas disposiciones de la Ley de Inversión Extranjera; Ley Minera, y Ley de Asociaciones Público Privadas.
43 Herfried Wöss, 'Arbitration Under the Mexican Energy Reform: The Lessons of COMMISA v. PEMEX.' Kluwer Arbitration Blog (7 November 2014), http://kluwerarbitrationblog.com/2014/11/07/arbitration-under-the-
44 Decreto por el que se expide la Ley de Hidrocarburos y se reforman diversas disposiciones de la Ley de Inversión Extranjera; Ley Minera, y Ley de Asociaciones Público Privadas.
45 Corte Constitucional (Colombia), Sentencias C-1336/00 y SU-174/07.
46 Presidential Directive No. 03, 23 December 2015.
47 José Carlos Bernal Rivera, 'Bolivia's Step Back in State Arbitration', Kluwer Arbitration Blog (7 May 2017), http://kluwerarbitrationblog.com/2017/05/15/bolivias-step-back-state-arbitration/.
48 Elisabeth Eljuri and Clovis Trevino, 'Energy Investment Disputes in Latin America: The Pursuit of Stability.' 33 Berkeley Journal of International Law 306, at 331 (2015).
49 Ley 708 del Estado Plurinacional de Bolivia, 25 June 2015.