International Commercial Arbitration in Bolivia

The evolution of arbitration in Bolivia

Arbitration is an effective, traditional and well-structured mechanism for solving disputes in Bolivia. Arbitral institutions and legislation have evolved to guarantee the validity and effect of the arbitration agreement, the transparent development of arbitral proceedings as well as the enforceability of arbitral awards.

From the very beginning of Bolivian legislative history, arbitration was available to the parties facing legal disputes under the regulations contained in general legal standards such as the Civil Code, the Commercial Code and the Civil Procedural Code of Bolivia.

The first regulatory provision in Bolivia that introduced arbitration was the Santa Cruz Code of Proceedings of 1831, which simultaneously regulated civil and criminal cases.^[2] The Santa Cruz Code of Proceedings was the first procedural law in force in the Americas.

After more than a century, due to its relevance and the efforts promoted by international entities, arbitration reached an autonomous status. On 10 March 1997, Bolivia adopted the first law entirely dedicated to the regulation of arbitration (Law 1770). This law followed the guidelines of the United Nations Commission on International Trade Law (UNCITRAL) Model Law on International Commercial Arbitration (UNCITRAL Model Law), the most important legislative instrument in the field of international arbitration.

Almost 18 years after the approval of Bolivia’s first arbitration law, on 25 June 2015, the Congress of Bolivia enacted Law No. 708 of Conciliation and Arbitration (Law 708 or the Arbitration Law), the arbitration law currently in force. Law 708 abrogated Law 1770.

Local practices and customs of arbitration in Bolivia

Arbitration in Bolivia has essentially developed alongside commerce and investment. In terms of local practices and customs, arbitration in Bolivia has been significantly modernised and become more sophisticated in recent years. To date, there are no marked or considerable differences with respect to international practice.

Nonetheless, it is first necessary to point out that Bolivia is a civil law country. Thus, substantive and adjective laws are codified or contained in written laws.

From a general perspective, one of the main challenges facing arbitration in Bolivia is the frequent use of the Code of Civil Procedure, as a supplementary law applicable to arbitration proceedings.

In particular, incidental matters, such as cautionary measures, joinder of additional parties, consolidation of arbitration, party representation, appeals and the rules applicable to the production of evidence are strongly governed by the Code of Civil Procedure, making arbitration more rigid and less flexible.

The rigidness of the Code of Civil Procedure and the flexibility of arbitration struggle to coexist in a single process. Local practitioners find an important source of tools to implement guerrilla tactics based on the application of the rules of the Code of Civil Procedure to all stages and incidences of the arbitration.

This practice introduces a certain degree of confusion for the arbitrators and practitioners, which sometimes leads to complex and extremely formal procedures.

Arbitration agreements

Arbitration has a contractual nature. As with every other type of contract, it must satisfy several conditions to be valid. Bolivian law has taken this into consideration and established formal requirements for an agreement. Law 708 states that the agreement must be in written form and must be recorded on a physical, electronic or any other medium that provides a record of the parties’ expression of will.^[3]

In the case of Bolivia, when drafting arbitration clauses, it is advisable to take into consideration that there are highly developed arbitration centres with proven capabilities to administer domestic or international arbitrations. Consequently, we recommend that, instead of opting for ad hoc arbitration, a centre should be chosen whose participation would be essential for the formation of the arbitral tribunal and the speed of the proceedings. Judicial assistance in setting up a tribunal is available; however, this route may be more time-consuming.

In relation to the autonomy of the parties, the Arbitration Law provides that the time limit may be shortened or extended in cases where there is an agreement between the parties. However, the maximum time limit established in the arbitration law for the merits phase of domestic arbitrations is 270 days. On the other hand, the rules of the main arbitration centres establish a time limit of no more than 180 calendar days, to be counted from the date of installation of the arbitral tribunal.

It is necessary to point out that the dispositions contemplated in Bolivian law are concordant with different international conventions, such as the Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958 (the New York Convention) and the UNCITRAL Model Law.

Matters excluded from conciliation and arbitration

There are significant limitations in Bolivian law as to the matters subject to arbitration. According to the Arbitration Law, the following matters are not subject to arbitration:

• disputes in labour and social security matters;
• trade and integration agreements between states, signed by Bolivia, which shall be governed by the provisions on conciliation and arbitration determined by the parties, within the framework of such agreements;
• the ownership of natural resources;
• titles granted over fiscal reserves;
• taxes and royalties;
• administrative contracts, except as provided for in the law;
• access to public services;
• matters affecting public policy;
• matters on which a final and definitive judicial decision has been handed down, except for those aspects derived from its execution;^[4]
• matters relating to the civil status and capacity of persons;
• matters relating to the property or rights of incapable persons, without prior judicial authorisation; and
• anything else determined by the Constitution or the law.

Despite the restriction applicable to administrative contracts, in certain cases, state entities or companies enter into arbitration clauses. In practice, the state, its entities and companies accept arbitration clauses that give rise to domestic arbitration under local law, in which a Bolivian arbitration centre is usually appointed.

Grounds to challenge or disqualify arbitrators

In the Bolivian practice, each arbitration centre maintains a list of arbitrators, whose inclusion depends on its own requirements, policies and guidelines. The general requirements to serve as an arbitrator are the following:

• being in full possession of the legal capacity to act, in accordance with the law;
• meeting the appropriate professional profile, to be defined by the authorised conciliation and arbitration centre or arbitration centre, except in the case of ad hoc arbitration;
• not having an enforceable conviction in criminal matters, pending compliance;
• not have any civil sanction linked to his or her performance as arbitrator in another proceeding; and
• not having been sanctioned for matters related to professional ethics.

The impediments to be an arbitrator established in the law are performing a public service or exercising the activity of stock exchange operator.

By definition, arbitrators do not represent the interests of the parties in conflict and cannot be influenced by any institution, authority or tribunal. They must be impartial and independent.

Bolivian law does not make any distinction based on nationality. Both Bolivians and foreigners may serve as arbitrators, as long as they comply with the provisions set forth in the Bolivian law. Non-Bolivian lawyers can serve as arbitrators.

In addition to the above, within the context of ad hoc arbitration, there are no major qualifications for an individual to be appointed as an arbitrator. Nonetheless, in the case of institutional arbitration, it is necessary that arbitrators be registered under the list of the arbitration centre.

In addition, the grounds to challenge or disqualify arbitrators established by Bolivian law are the following:

• being related up to the fourth degree of consanguinity or second degree of affinity, with any of the parties, their representatives or attorneys;
• having a direct or indirect interest in the controversy;
• maintaining a profit-making relationship with any of the parties;
• being a creditor, debtor or guarantor of any of the parties;
• having judicial or extrajudicial proceedings pending with any of the parties; and
• having advanced criteria with respect to the controversy.

On the other hand, in relation to foreign lawyers in the capacity of counsels of record in arbitrations seated in Bolivia, in practice, foreign lawyers have sponsored and defended arbitrations together with local lawyers. In these cases, the foreign lawyers are recognised as counsel and not as lawyers per se, due to the lack of authorisation to practise law in Bolivia.

Grounds for nullity of the arbitral award

Regardless of the grounds for nullity of the arbitral award, Bolivian law establishes specific criteria for filing a nullity action. The competent judicial authority shall declare the nullity of the arbitral award on the following grounds:

• the subject of arbitration is a non-arbitrable matter;
• the arbitral award is contrary to public policy;
• the appellant proved the nullity or annulment of the arbitration clause or arbitration agreement;
• the appellant proved that the right to defence of one of the parties has been affected during the arbitration proceedings;
• the appellant proved that the arbitral tribunal has manifestly exceeded its powers in the arbitral award, with reference to a dispute not provided for in the arbitration clause or arbitration agreement; or
• the arbitral tribunal was irregularly composed.

In relation to cases of nullity of arbitral awards, the appeal for nullity and judges cannot decide the merits of a dispute submitted to arbitration. There is uniform jurisprudence of the Constitutional Court of Bolivia that has established an important framework of respect for the decisions of arbitrators.

Inclusion of non-signatory parties

Bolivian law does not contemplate the possibility of including non-signatory third parties in an arbitration process. However, recently, certain courts have summoned third parties who are not parties to the disputes but who have consented to the arbitration clause or have interests that may be affected by the ongoing dispute, in order to hear them before making a decision that could affect their interests. This type of case has arisen mainly in corporate and contractual arbitration. Arbitrators have followed typical judicial practices.

International and national arbitration according to Law 708

In relation to the types of arbitration, Law 708 contains a fairly basic differentiation between national and international arbitration. The criteria adopted by the Bolivian Arbitration law is territorial.^[5] In other words, every arbitration seated in Bolivia is considered as a domestic arbitration and is subject to local law. On the other hand, any arbitration seated abroad is considered as an international arbitration and could be subject to laws other than Bolivian laws. Bolivian arbitration law has oversimplified the distinction between international and domestic arbitration. Nationality of the parties involved or place of execution of the contract or other traditional elements used to distinguish between a domestic and an international arbitration are not taken into account in the legal regime currently in force.

Bolivia’s arbitration system is essentially dualist. It distinguishes between domestic and international arbitration. In essence, if the parties agree in the arbitration clause or arbitration agreement that the arbitration shall have a seat other than Bolivia, it shall be considered an international arbitration. On the other hand, national arbitration is an arbitration proceeding held in Bolivia, subject to Bolivian law.

Regardless of the aforementioned, the application of international arbitration practices occurs most frequently in ad hoc arbitrations. However, most locally administered cases follow local standards of practice and procedures, which in many cases follow Bolivian civil procedural law rather than international rules or guidelines.

In practice, international arbitration is the safest way to ensure the effectiveness of choice and application of foreign law for the settlement of a dispute. Bolivian judges respect arbitration agreements and decline jurisdiction over disputes covered by an international arbitration clause. Nonetheless, under the local configuration of arbitration, judges are not authorised to decline jurisdiction ex officio; the party interested in the enforcement of the arbitral agreement must present an arbitration exception or defence. If a party fails to timely submit an arbitration defence, the jurisdiction of the judge is confirmed. Failure to submit an arbitration exception is construed as an implied waiver of arbitration.

Finally, forum selection clauses are not respected in all cases: the Constitution states that the laws of Bolivia are applicable in the territory and that everyone is subject to local jurisdiction. Under this precedent, it is often the case that local judges declare themselves competent even in cases where there are forum selection clauses.

Discovery phase

The discovery phase is not specifically regulated by the Arbitration Law in Bolivia or the rules of arbitration centres. However, in Bolivia it is possible for the parties to obtain documentation or evidence through pre-dispute procedures such as preliminary measures before judicial authorities or, exceptionally, before the arbitral tribunal.

It is usual that arbitration proceedings in Bolivia request precautionary measures prior to the constitution of the arbitral tribunal. Law 708 establishes that it shall not be considered a tacit waiver of arbitration if either of the parties, before or during the arbitration proceedings, requests a competent judicial authority to adopt measures preparatory to the claim or interim measures, or if said judicial authority grants the enforcement thereof.^[6]

Investment dispute resolution

Law No. 708^[7] establishes that any controversy of a contractual or non-contractual nature that involves the state and arises from or relates to an investment made under Law No. 516 for the Promotion of Investments (Law 516) shall be bound by the following rules:

• investment controversies shall be subject to Bolivian jurisdiction, laws and authorities;
• the parties must submit the controversy to conciliation prior to arbitration. Conciliation or arbitration must be local and must be administered by a Bolivian centre;^[8]
• the seat of the conciliation or arbitration must be located within the territory of Bolivia. Nevertheless, hearings, evidence production and other procedures, could be conducted outside Bolivian territory; and
• the existence of an arbitration clause or the willingness to conciliate does not limit or restrict the attributions and competences of control and supervision from the corresponding regulatory entities and competent authorities, to whom the parties will be always subject according to applicable norms.

At present, the rules and mechanism applicable to investment disputes have not been tested.

Controversies related to Bolivian investment

Law 708 stipulates the specific rules that shall apply to conciliation and arbitration in respect of controversies that involve Bolivian investments made by a Bolivian individual or legal entity, either public or private.^[9] For instance, the conciliation and arbitration will be administered by a Bolivian centre, the applicable rules will be those pertaining to the centre chosen by the parties, and the nominating authority will be appointed by the chosen centre.

In addition, in the case of conciliation, the conciliator will be appointed by the parties based on the list of conciliators from the chosen centre. In the case of disagreement, the parties may request that the appointment is made by the nominating authority.^[10]

Controversies relating to foreign investment

In relation to controversies related to foreign investment, Law 708 establishes dispositions concerning the conciliation of disputes that involve the Bolivian state and foreign investment.^[11] As with controversies that involve Bolivian investments, the conciliator shall be appointed by the parties and in the event of a disagreement, the parties may request that the appointment is performed by the nominating authority. Regarding the conciliation rules, they shall be those chosen by the parties. If no agreement is reached, the applicable conciliation rules shall be those of the centre.

Pursuant to Law No. 708,^[12] to solve any dispute that involves the Bolivian state and foreign investment by means of arbitration, the following rules are applicable:

• The arbitral tribunal must be composed of three arbitrators. As in a normal arbitration proceeding, each party has the right to appoint one arbitrator, and the third arbitrator shall be the president of the tribunal and shall be appointed by the two arbitrators selected by the parties. If no agreement is reached, the nominating authority will conduct the appointment upon request of the parties.
• The nominating authority shall be elected by the parties. If no agreement is reached, the nominating authority shall be the secretary general or equivalent authority of the centre for the resolution of investment controversies of an organisation Bolivia is a part of, within the framework of an integration process. If no such entity exists, the nominating authority shall be the secretary general of the Permanent Court of Arbitration in The Hague.
• The arbitral tribunal shall apply the laws of Bolivia to decide the merits of the controversy.

The arbitration rules shall be those selected by the parties. If no agreement is reached, the applicable arbitration rules shall be those of the centre for the resolution of investment controversies of an organisation Bolivia is a part of, within the framework of an integration process.

The arbitration term may be extended by up to an additional 600 calendar days.

The arbitral tribunal shall decide and resolve any objection to jurisdiction as an issue of preliminary nature.

The arbitral award shall be definitive and unappealable. The arbitral award shall be issued within a term of 90 calendar days to be counted from the last procedural act.

Challenging an arbitral award

In Bolivia, the arbitratal award is not subject to appeal or second instance. A nullity recourse is only allowed on grounds expressly provided by law. Law 708^[13] establishes that the only way to challenge an arbitral award is by means of a nullity recourse.

The grounds that allow the competent judicial authority to set aside an arbitral award are the following:

• arbitrability;
• public policy;
• the existence of grounds for annulment or nullity of the arbitration clause according to civil law;
• right-of-defence violations during the arbitration proceedings;
• that the arbitral tribunal exceeded its powers in the award rendered, deciding ultra petita over controversies not included in the arbitration clause; and
• irregular constitution of the arbitral tribunal.

The parties may invoke one or more grounds for nullity of the award if such causes were raised during the arbitration proceeding.

The Constitutional Court has issued several rulings reaffirming the authority of the arbitral tribunal to hear the facts, apply the law and decide on the merits of the case. In general, the ordinary jurisdiction respects the institution of arbitration.^[14] The resolution of the nullity recourse admits no further appeals or recourses.

Notwithstanding the above, in our experience, it is common that the party that loses the recourse of nullity activates a constitutional protection action. As stated before, Law No. 708 establishes that the only way to challenge an arbitral award is by means of a nullity recourse. However, Bolivian legislation also provides for a constitutional protection action that can be exercised by any individual who considers that one of his or her constitutional rights has been violated, after the exhaustion of the corresponding legal actions with no further recourse available.^[15]

Therefore, the Bolivian judiciary has accepted the aforementioned constitutional protection action against rulings that have dismissed a nullity recourse filed against an arbitral award. An argument used for this purpose relates to the lack of sufficient motivation in the award or judicial ruling that would lead to a breach of the constitutional guarantee of due process and the right of defence.

Accordingly, even though Law No. 708 provides numerous grounds to seek nullification of an award, the cited constitutional jurisprudence seems to be opening additional means to challenge an arbitral final decision or a judicial judgment on a nullity recourse, even though no further instances should be available under the law.

Recognition and enforcement

In Bolivia, there are some difficulties in the enforcement of awards. Judges are not fully aware of which procedure is applicable. In some cases, they apply the judgment enforcement procedure and in others they try to follow the guidelines of the special process contained in the Arbitration Law. However, regardless of the procedure chosen by the judges, the executions are carried out with relative agility, subject to the delays inherent to the judicial forum.

Enforcement of foreign arbitral awards

To date, Bolivian judicial authorities have not yet had the opportunity to recognise foreign arbitral awards.

In relation to the enforcement of foreign arbitral awards, Bolivia is a signatory of the Inter-American Convention on International Commercial Arbitration, of 1975^[16] (the Panama Convention), the Inter-American Convention on the Extraterritorial Effectiveness of Foreign Judgments and Awards, of 1979^[17] (the Montevideo Convention) and the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958 (the New York Convention).

In addition, the Arbitration Law also contains general guidelines for the enforcement of awards that are compatible with the New York Convention, with some minor differences. Either way, by provision of the Arbitration Law and in application of the principle of favourability, as a rule, the rules of the New York Convention are applicable to the recognition and enforcement of foreign awards. The principle of favourability establishes that, when there is more than one set of rules applicable to the recognition and enforcement of a certain foreign award, local judges must apply the one that contains more favourable standards for the benefit of recognition and enforcement.

This is because, in Law 708,^[18] there is a legal disposition in favour of recognition and enforcement, which mandates the application of the most favourable instrument to the requesting party. And only in the absence of a convention, the domestic provisions apply.

In relation to the applicable international instruments mentioned, Law 708 refers to the three treaties to which Bolivia is a party. Of the three that were mentioned, the Montevideo Convention is the first to be excluded because it is subsidiary to the Panama Convention and the conditions for recognition are more rigorous than those contained in the New York Convention.

With the Montevideo Convention being excluded, the Panama and New York Conventions remain in competition. The Panama Convention is excluded from the New York Convention because of its scope of application. The New York Convention applies even to awards issued in states that are not party to it, whereas reciprocity is the rule for application of the Panama Convention.

Consequently, of the three conventions to which Law 708 refers, the New York Convention is the most favourable towards recognition of arbitral awards.

Grounds for rejection of recognition and enforcement

Law 708 has adopted the grounds for refusal of recognition and enforcement contained in the New York Convention.^[19]

The grounds for rejection are dispositions such as public policy, incapacity of the parties, invalid arbitration agreement, violation of due process, ultra petita award, irregularity in the constitution of the tribunal in the arbitration proceedings and non-binding, suspended or annulled award.

Law 708 has also expressly stated that the existence of grounds of nullity or inadmissibility established in international agreements or conventions in force could be invoked and used as causes of inadmissibility within the context of a process of recognition and enforcement of foreign awards. Based on this particular provision, any cause of nullity or inadmissibility stated under an international treaty adopted by Bolivia could be used to deny recognition and enforcement of a foreign award.

Arbitration trends

Administrative contracts and arbitration

According to Law No. 708, administrative contracts fall out of the scope of arbitration. Pursuant to the fourth transitory provision of Law 708, said restriction would not be applicable in certain cases,^[20] such as administrative contracts of state-owned companies until their migration process is complied with and concluded in terms of the Law of Public Companies (Law 466). The migration process consists of the transformation of the public companies and nationalised private companies existing at the time of issuance of Law 466, of 26 December 2013, to the new legal regime, structure and standards provided under said law. Despite the time that has passed, the migration process has not ended for most public companies or nationalised private companies. In the meantime, these companies are permitted to include conciliation and arbitration clauses in their contracts.

In practice, it is common for administrative contracts to include arbitration clauses. However, in all cases arbitration is subject to the mandatory provisions that the Bolivian law determines, the applicable law must be Bolivian, and the seat must be located within Bolivian territory.

Virtual hearings

The quarantine and confinement measures caused by the recent pandemic have led different jurisdictions and arbitration centres to pay more attention to virtual litigation and arbitration, issuing new provisions on virtual hearings.

Virtual hearings are allowed in Bolivia according to the principle of flexibility and agreement of the parties. Most arbitration centres have issued special rules and protocols that incentivise the use of technologies.

Virtual arbitration hearings have been widely embraced by local centres. They have developed extensively due to the pandemic and many arbitrations are conducted entirely virtually. In Bolivia, the National Chamber of Commerce (CNC) presented its virtual platform that seeks not only to reduce the presence of interested parties at hearings, but also to reduce the use of paper. Furthermore, the regulations of the Chamber of Industry and Commerce of Santa Cruz^[21] (CAINCO) establish that express authorisation of the parties is required for an arbitrator to participate by videoconference. This authorisation will not apply to the award, which must always be signed.

Notes