Arbitration Legislative and Case Law Developments Lay Groundwork For Progress in Argentina
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Argentina continues to grow as an evolving jurisdiction for international commercial arbitration. Developments in recent years in the legal, judicial and practical fields confirm Argentina’s potential as one of the most prominent arbitral seats in Latin America. Three milestones embody this progress:
- the coming into force of a new Civil and Commercial Code (the New Code) in August 2015, which contains a chapter regulating arbitration agreements applicable to domestic arbitrations;
- the enactment of the International Commercial Arbitration Law (ICAL) in July 2018, which provided Argentina with an adequate legal framework intended to favour its election as a seat of international arbitrations, and embrace the modern notions of arbitration; and
- the consistent interpretation and application in a pro-arbitration fashion of this new framework by local courts, in core aspects such as Kompetenz-Kompetenz, scope of judicial review, interpretation of arbitration agreements, and recognition and enforcement of awards, which contribute to outlining a solid case law and building certainty for the parties.
With this, Argentina adopted a dualist system for arbitration and now offers a modern and tested arbitration legal framework, in line with the main international arbitration seats.
In this chapter, we introduce the legal framework currently in force in Argentina, as well as its evolution through doctrine and jurisprudence. In particular, we address:
- the layers of regulation applicable to international and domestic commercial arbitration, aiming to clarify when a practitioner or arbitrator should resort to each of the different layers;
- a brief reference to commercial arbitration involving the Argentine state;
- the main features of arbitration law and practice in Argentina, with an emphasis on those of particular interest to international practitioners; and
- brief conclusions and closing remarks.
Legal arbitration framework in Argentina
Argentina is a federal republic, organised under a federal constitution. The federal state has exclusive power to enact federal regulation on substantive matters (such as interprovincial trade and codes concerning civil and commercial matters, among others), which are applicable throughout the country, while each provincial state may enact its own laws or regulations on procedural matters. The relevance of this distinction is linked to the different levels of arbitration law found in international, national and provincial law, both substantive and procedural. These are summarised below.
Treaty law is considered to be part of Argentine law, and to hold a higher hierarchy than federal law, which in turn has a higher hierarchy than provincial law. Argentina is a party to multiple regional and global treaties governing arbitration matters, including the Inter-American Convention on International Commercial Arbitration (the Panama Convention) and the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention).
Federal arbitration law is issued by the National Congress for its application in the entire republic. In respect of the New Code, it was decided that arbitration provisions would be articulated as substantive (and not procedural) law, by including a chapter titled ‘The arbitration contract’. This legislative choice considered the contractual nature of arbitration as an expression of private autonomy in civil and commercial matters. ICAL can be considered as part of the powers of Congress to legislate on commerce with foreign nations. However, both the New Code and ICAL also contain provisions of a procedural nature. The regulation of procedural matters by the National Congress is considered constitutional when that mechanism is necessary to guarantee the exercising of rights derived from substantive law. Finally, there are other specific federal regulations that contemplate arbitration as a mechanism for resolving conflicts.
Federal procedural law is contained in the National Code of Civil Procedure (the Procedural Code) and must be applied in the context of judicial proceedings in the City of Buenos Aires and in federal courts through the country. The Procedural Code does not regulate the arbitration proceeding but the legal action to constitute an arbitral tribunal, and it organises the recourses and actions against the award, as well as its enforcement in the domestic arena.
The interaction between ICAL and federal procedural law is observed in Article 107 of ICAL, which repeals Article 519 bis of the Procedural Code, which formerly regulated the enforcement of awards rendered by ‘foreign arbitral tribunals’. The enforcement of awards rendered in commercial international proceedings under ICAL is now regulated in Articles 102 to 106, without prejudice of arbitration treaties to which Argentina is a party (as stated in ICAL, Article 1). Provincial procedural law is potentially applicable when arbitration proceedings are seated in the different provinces and when the case does not involve federal matters.
Summary of Argentine international and domestic commercial arbitration law
With the enactment of the New Code and ICAL, Argentina has modernised its arbitration legislation. From a monist country based on an antiquated system, the country has moved towards a dualist approach to arbitration, in which international and domestic arbitrations are regulated by different laws. We summarise below the main features of ICAL and the New Code.
Argentine regulation for international commercial arbitration: ICAL
International arbitration proceedings that can be characterised as ‘commercial’ and ‘international’ are governed by ICAL exclusively. ICAL is substantially based on the UNCITRAL Model Law on International Commercial Arbitration (the Model Law), as amended in 2006, with some adaptations, aiming to make the text coherent with the rest of the Argentine legal system.
ICAL adopts the main principles of modern comparative legislation that regulate international arbitration. Throughout its 109 articles, the law regulates, among other aspects:
- the arbitration agreement;
- its form and autonomy;
- the constitution and competence of the arbitral tribunal;
- the issuance of precautionary measures and preliminary orders;
- the arbitration procedure;
- interaction with judicial courts in evidentiary issues;
- the rendering of the arbitral award;
- requests for correction and interpretation of the award;
- termination of the proceedings;
- recourses against the arbitral award; and
- provisions applicable to the recognition and enforcement of awards.
As regards ICAL’s scope of application, it shall apply only when the seat of an international arbitration is in Argentina, except for, among other things, the enforcement of interim measures and the recognition and enforcement of awards in Argentina; in these cases, ICAL applies even when the arbitral tribunal is seated outside Argentina.
Furthermore, following the Model Law, internationality of an arbitration under ICAL is provided for in the following scenarios: (1) the parties’ places of business are located in different countries; (2) the place of arbitration is in a different location from the parties’ places of business; (3) the place of performance of a substantial part of the obligations is in a different location from the parties’ places of business; or (4) the place with which the arbitration is most closely connected is in a different location from the parties’ places of business. Thus, the international character of an arbitration is defined in ICAL in connection with the parties’ domiciles, the place of the arbitration, the place of performance of a substantial part of the obligations in question, or the place with the closest connection to the litigation.
However, unlike in the Model Law, ICAL does not grant internationality solely by the parties’ agreement that ‘the subject matter of the arbitration agreement relates to more than one country’. To qualify an arbitration as international, ICAL requires that the case presents an objective international element in accordance with the parameters described above.
This approach by ICAL is consistent with Article 2605 of the New Code on international jurisdiction, which provides that ‘in patrimonial and international matters, the parties are allowed to extend jurisdiction to judges or arbitrators outside the Republic, except when the Argentine judges have exclusive jurisdiction or the extension is forbidden by law’. The rule of Article 2605 was stated in Article 1 of the Procedural Code, which was interpreted as defining internationality as the connection to multiple juridical national systems able to cause an international jurisdiction conflict based on objective circumstances.
Based on the interaction between these provisions of ICAL and the New Code, commentators, such as Commercial Judge Uzal, conclude that ICAL admits only the possibility of ‘internationalising’ a case if it is strictly linked to a foreign country (but a domestic case for that country), when the parties agree on fixing the seat of their arbitration in Argentina. Case law is not developed in this sense yet. However, the issue remains arguable and should be analysed case by case. In fact, former Supreme Court Judge Boggiano considers that an award would be most likely issued outside Argentina (since an arbitral tribunal seated abroad would not apply Article 2605 of the New Code) and enforced in Argentina, unless a more serious ground for annulment were present.
Arbitrator Caivano accepts that the Argentine legislator has preferred to maintain an objective criterion to determine an arbitration’s internationality, and acknowledges that an award rendered by an arbitral tribunal seated outside Argentina in a purely ‘Argentine’ case would hardly be enforced in the country. Judge Uzal agrees with this interpretation and considers that a local court should refuse enforcement, considering that the matter is not arbitrable. However, Mr Caivano proposes that neither these circumstances nor the omission of Article 1.3.c of the Model Law in ICAL prevents parties from choosing a foreign seat, since the validity of the award will be determined by the law of the seat, not Argentine law.
ICAL’s scope of application is also defined in connection with the ‘commercial’ nature of an arbitration. ICAL states that ‘commercial’ takes in any juridical relationship, whether it be contractual or not, of private law or mostly governed by private Argentine law. In case of doubt, a broad interpretation in favour of ‘commerciality’ shall proceed.
Last, international practitioners will find that ICAL contains certain provisions that innovate, complement or fill the gaps intentionally left in the Model Law’s regulation. In this regard, ICAL:
- expressly allows parties to agree on notifications through electronic means (Article 9);
- sets a period of 20 days within which parties can object to non-compliance with ICAL or the arbitration agreement before being deemed to have waived the right to object (Article 11);
- concentrates the judicial functions of ‘support’ in the first instance courts and those of ‘control’ in the Court of Appeals, both with competence in commercial matters of the seat of arbitration (Article 13);
- refers to the ‘seat’ of arbitration instead of the ‘place’ (Articles 65 and 66);
- states, when regulating the applicable law to the dispute, that, failing any designation by the parties, the arbitral tribunal shall apply ‘the rules of law that it deems appropriate’ (Article 80), instead of ‘the conflict of laws rules which it considers applicable’, as stated in the Model Law; and
- states that time frames under this law are calculated in natural days, but that if a period ends on a non-working-day, it is extended until the next working day (Article 108).
All in all, ICAL has not been disruptive in its regulation but has mostly embraced the text and spirit of the Model Law. Except for the adjustments mentioned above, and other minor modifications and additions addressed in the following sections, it is fair to call Argentina a ‘Model Law jurisdiction’, thanks to ICAL.
The New Code and the Procedural Code
Commercial domestic proceedings are governed by the New Code. Its regulation must be considered together with the Procedural Code, and local provincial procedural codes, when applicable.
The ‘Arbitration Contract’ chapter in the New Code was inspired by international sources such as the Model Law, the Civil Code of Quebec and the French Arbitration Law of 2011. Thus, the New Code embraced several universally accepted standards, such as the principle of Kompetenz-Kompetenz and the separability of the arbitration clause. However, this new corpus also included other questionable provisions, such as those relating to the scope of judicial review of awards. As we explain below, Argentine courts have so far construed such provisions in an arbitration-friendly fashion by way of, for example, limiting the grounds for review of arbitral awards. Since this chapter focuses on Argentina as the seat of international arbitration, its scope does not extend to a detailed analysis of the legal framework applicable to domestic arbitration.
Regime applicable to arbitration involving the Argentine state
The rise in disputes involving states or state-owned entities is a notable phenomenon of modern international commercial arbitration. According to a statistical report by the International Chamber of Commerce (ICC), in 2021, approximately a fifth of new cases involved a state or state entity. In this context, certainty regarding rules applicable to state commercial arbitrations is significant for the development of any arbitral seat.
Historically, in Argentina, the participation of the state and its entities as a party in commercial arbitration has been subject to different interpretations. At present, the possibility is recognised in case law and in several specific regimes. However, the regimen applicable to such arbitrations is still a matter of debate.
On the one hand, public policy and public affairs were the subject of discussion in the Argentine Congress debates leading to the enactment of the New Code. This resulted in two provisions in the legislation: (1) that only matters of private law and in which public policy is not implicated can be subject to arbitration; and (2) the inapplicability of provisions concerning the arbitration contract in the New Code to disputes in which federal or provincial states are a party.
On the other hand, since ICAL provides that only relationships governed predominantly by private law are considered ‘commercial’, it would, in principle, not apply to relations preponderantly governed by public law, irrespective of their commercial nature. Nonetheless, when dealing with the involvement of the Argentine state in arbitration, the possibility of unclear boundaries between public and private law may give rise to different interpretations.
Another particular aspect of arbitration with the state concerns the formation of the arbitral agreement. The main difference between arbitration involving private persons and arbitration involving the state lies in how the consent is formed for each to resort to arbitration. Briefly, the National Constitution establishes the competence of the Argentine Supreme Court and lower federal courts to hear cases in which the federal state is a party and concern federal law affairs. However, the Argentine Supreme Court has consistently held that ‘there is no constitutional obstacle for the federal government to subject its controversies with private persons to arbitration, as long as a law so allows’. Thus, in principle, any arbitration agreement involving the state must be allowed by law. In line with our discussion above, commentators understand that for such an arbitration agreement to provide for a foreign seat, it is required that the case has some objective international element.
Main topics of current law and practice in Argentina
In international arbitrations, ICAL adopted option I of the Model Law to define arbitral agreements. A slight modification in terms of form was introduced by eliminating the final part of Article 7.3 (resulting in the following text: ‘An arbitration agreement is in writing if its content is recorded in any form.’). ICAL’s favourable position towards arbitration with regard to arbitration agreements can be found in its Article 106. According to this provision, Paragraph 2 of Article II of the New York Convention ‘must be interpreted and applied taking into account that the circumstances set forth in the Convention are not exhaustive’, following UNCITRAL’s recommendation.
In domestic arbitrations, the situation is not that straightforward, as limitations to matters on which parties can agree to arbitrate require interpretation from local doctrine and case law. Arbitrability remains governed by provisions of the New Code, namely Article 1649, which reads:
There is an arbitration contract when the parties decide to submit to the decision of one or more arbitrators all or some of the controversies that have arisen or may arise between them regarding a certain juridical relationship, contractual or not, under private law in which public policy is not involved.
This definition seems to exclude the possibility of arbitrating disputes involving matters of public policy and, therefore, has been widely criticised. However, the touchstone of arbitrability is whether the rights involved cannot be disposed of under law – if they cannot, the matter is not arbitrable – and for a matter to be excluded from arbitration, it must fall under the specific prohibitions of the law. This criterion arises from both Argentine doctrine and case law. In this context, the New Code excludes the possibility of agreeing arbitration for certain specific matters. The list includes disputes about civil status or persons’ capacity, family matters, consumer matters, labour matters, and controversies stemming from ‘adhesion contracts’, whatever their object may be.
The question of ‘adhesion contracts’ has triggered developments from Argentine authors and case law, resulting in two opposing criteria, which only time and further case law will clarify. On one side, the exclusion from arbitration of contracts involving standard terms has been regarded as incompatible with the ‘pro-arbitration’ spirit of the New Code. The National Chamber of Appeals in Commercial Matters (Chambers C and D) has stated that, unless the contract can be proven to be injurious and public interest is at risk, the arbitration clause in a standard term contract between businesspersons (in which disposable rights are agreed) is valid. The contrary would be counter to the purpose of the rule, and state courts may not intervene to override an agreement when the contracting party cannot be deemed surprised by the incorporation of the arbitration clause in the contractual scheme. Local authors have also promoted this view. Chambers E and F, on the other hand, have declared that arbitration agreements are not operative in adhesion contracts, mainly based on the text of the New Code’s ruling.
In conclusion, a positive evolution can be identified in terms of the interpretation of arbitration agreements. In the past, the Argentine Supreme Court and lower courts were of the view that the arbitral jurisdiction is an exception to that of state courts, and that arbitration clauses should be interpreted restrictively. The matter is now regulated in Article 1656 of the New Code, which states that in case of doubt, one must resolve it in favour of the efficacy of the arbitration agreement. The National Chamber of Appeals in Commercial Matters has reaffirmed that principle. There is also the situation when a party attempts to bring a dispute to state courts despite having signed an arbitration clause, for which it must call the other party for mediation (as a mandatory requirement before filing a judicial suit). In this scenario, courts have stated that the defendants’ assistance in mediation does not imply a waiver to the arbitral jurisdiction; on the contrary, such behaviour could be interpreted as confirming the arbitration clause, which provided for attempts at an amicable solution prior to the arbitration.
Article 24 of the ICAL adds a final provision that is not present in the Model Law, which expressly states that any arbitration clause placing a party in a privileged or favoured position relative to the appointment of arbitrators shall be null. This provision is an exception to the parties’ autonomy to agree on the proceeding for the appointment of arbitrators, aiming to preserve their equality. This equality would be affected, for instance, if the arbitration agreement provided that only one of the parties shall appoint the sole arbitrator.
ICAL also expands on the grounds to challenge arbitrators, listing two specific cases of possible lack of independence and impartiality that, if proven, are sufficient to constitute, by themselves, cases of lack of independence and impartiality: (1) the arbitrator, or members of the arbitrator’s firm, acts on behalf of one of the parties in any matter (related or not to the arbitration); and (2) the arbitrator, or members of the arbitrator’s firm, acts on behalf of a third party in a case with the same cause of action or object.
One notable case is the unfortunate precedent of Yacyretá. The joint venture ERIDAY had initiated an arbitration against the Entidad Binacional Yacyretá (EBY), an international entity formed by the states of Argentina and Paraguay, in relation to claims based on the construction of the Yacyretá dam. In this context, EBY filed a judicial suit before the Federal Contentious Administrative Court against the three members of the arbitral tribunal, seeking their resignation from the arbitration, and an anti-arbitration injunction to suspend the arbitration. The alleged grounds for its petitions were in respect of the issuance of the terms of reference, which EBY declined to sign as it disagreed with its terms, and the arbitrators’ lack of impartiality on the basis of prejudgment. In 2004, the court granted EBY’s petition based on (1) the arbitral tribunal’s alleged refusal to consider EBY’s arguments for the terms of reference, and (2) the ICC’s refusal to remove the arbitrators. Since then, the arbitration has been stayed on at least four occasions because of anti-arbitration injunctions issued by the judicial courts at the request of EBY, the last of which was in 2013. The arbitration remains suspended to date, as a result of multiple interim measures granted by the Argentine justice system at EBY’s request.
The courts’ attitude to arbitration in the Yacyretá case is a rare one that corresponds to an outdated view of arbitration. Beyond this case, it is expected that the current legislation and evolving jurisprudence should assist the development of arbitration and the tasks of arbitral tribunals, not least because both the Supreme Court and the lower courts can now apply a clear legal framework for arbitration, which (1) has contributed to their development into a more favourable view of arbitration, and (2) results in less uncalled-for judicial interference (see ‘Recognition, enforcement and annulment’, below).
Institutional arbitration is expressly provided for both in ICAL, as regulated in the Model Law, and in the New Code. Article 1657 of the New Code states that parties can require from an institution the appointment of arbitrators, as well as the administration of their arbitral proceedings. In the latter case, the arbitration rules of the institution will govern the proceeding and integrate the arbitration clause.
Argentina is a popular venue for institutional arbitration. At a domestic level, the most recognised local entities are the Commercial Mediation and Arbitration Centre of the Argentine Chamber of Commerce (CEMARC), the Business Centre of Mediation and Arbitration (CEMA), the General Arbitration Tribunal of the Buenos Aires Stock Market, with its permanent tribunal, and the Buenos Aires Cereal Market Arbitral Chamber (). Although each has its own particularities, these institutions have a long tradition that provide arbitration users with a menu of options to choose who will locally administer their case.
On the other hand, the usual choice for complex commercial or cross-border disputes is the ICC, and when the dispute involves a state, the Permanent Court of Arbitration, under the UNCITRAL Arbitration Rules, is a key player, given its seat agreement with the Argentine state.
Recognition, enforcement and annulment of awards
ICAL’s regime for annulment, recognition and enforcement of awards is substantially the same as in the Model Law. . In this regard, Article 99 of the ICAL establishes the same grounds for annulment of awards as those set forth in the Model Law, such as lack of a valid arbitration agreement, that the award deals with matters not covered by the submission to arbitration, non-arbitrability of the subject matter of the dispute, or violation of public policy; however, the ICAL presents some departures from the original text for the purpose of adapting it to Argentine law, including the following:
- The parties cannot dispense with a reasoned award. The right to have awards set out the grounds for their issuance is part of the set of rights that constitute the constitutional guarantee of due process.
- An award can be declared null, or its recognition and enforcement be rejected, not only when a party is incapable but also when its capacity is restricted.
- The permitted term for requesting the annulment of an award is shorter under ICAL than the Model Law, namely 30 days rather than three months.
- For an award to be recognised or enforced in Argentina, if the original award is not filed, a certified copy must be obtained.
Furthermore, under ICAL, the ‘public policy exception’ to decline the recognition or enforcement of an award refers to international public policy and not domestic requirements.
Although ICAL is relatively new, to date, Argentine courts have applied its principles according to international standards. As a general rule, the Argentine Supreme Court adopts a restrictive criterion for the judicial review of awards in the context of an annulment request, refusing to review its merits. Lower courts have also embraced a favourable view of arbitration. For instance, the National Chamber of Appeals in Commercial Matters has ruled that:
- the validity of an arbitral clause cannot be challenged in enforcement proceedings if the challenge was not introduced previously in a timely manner;
- an annulment request must be grounded on the award’s legal deficiencies, not its sense of justice or substantive content;
- a recourse to annulment must not be used as an ‘elliptical’ way to revise the merits of an award;
- if arbitral tribunals do not apply the law chosen by the parties, this could constitute a ground for annulment, but only if due process is affected and the arbitral tribunal’s disregard for the parties’ choice is manifest. An error of interpretation or application of the law does not meet such a standard; and
- arbitrariness cannot be invoked as a basis or annulment, since that ground would imply a broad scope of review that is appropriate for an appeal and not the narrower review appropriate to a challenge to an award.
Similarly, this pro-arbitration tendency has also influenced the interpretation of the available recourses against a domestic award under the New Code. Article 1656 provides that parties cannot waive the ‘judicial challenge’ of the final award in the arbitration clause, when such an award is ‘contrary to the legal order’. The text was originally included in the context of discussions concerning national sovereignty and the constitutional role of the judiciary. It generated a great deal of discussion locally with regard to whether the provision referred to the impossibility of waiving an appeal, which would seriously harm the logic of an arbitration system.
Both Argentine authors and judges were clear in their interpretation of the provision: the only unwaivable challenge to an award is a request for annulment, and not appeal. Under the New Code (namely, for domestic arbitration), the rule is that awards can be appealed, but the parties can waive such recourse either through an express agreement or by choosing a set of arbitral rules that includes a waiver (the rule for international arbitration is the contrary – that awards cannot be appealed).
Thus, Article 1656 is interpreted as a formula composed of the following: (1) annulment cannot be waived; (2) an award is contrary to the legal order when it falls under one of the cases of nullity included in procedural codes, such as the existence of essential procedural defects during the arbitration; and (3) waiver of appeals is allowed in the New Code.
In 2004, the Argentine Supreme Court attempted to open a door to expand the grounds for the judicial review of awards with the much-debated Cartellone decision. This precedent is considered exceptional, since it has not generally been followed in subsequent case law, it did not take place in the context of an international arbitration and was issued long before the enactment of the New Code and ICAL.
However, a point raised in Cartellone has continued to unfold in recent years, namely, the possibility of annulling an award based on reasons of public policy, a discussion that is particularly relevant in the context of domestic awards since neither the New Code nor the Procedural Code, which regulate those arbitrations, includes such a ground. In 2018, the Supreme Court substantially limited the scope of the Cartellone doctrine to cases of public policy violations, reinforcing once again that awards cannot be revised on their merits. It stated that the federal state’s petitions exceeded both the annulment ground of Article 760 of the Procedural Code, and did not prove that public policy was affected, for which the award in that case could not proceed.
In this context, in 2022, Chamber D of the Commercial Court of Appeals pointed that only ICAL included a public policy ground for annulment (and not law for domestic cases), but that the Argentine Supreme Court had provided for this possibility in its 2018 decision. The 2022 case concerned the application of contractual penalties in a domestic arbitration, and Chamber D held that the reduction of contractual penalties is part of the Argentine public policy, which stands against usurious penalties. Finally, when drawing the line to find a public policy violation, it affirmed that the applicable bar is a high one: annulment based on reasons of public policy is exceptional, applying to extreme cases only, under minimalist criteria, and when a grave and notorious violation of public policy is found. In the aforementioned case, the annulment did not proceed either.
On a final note on the domestic context, in terms of annulment of awards, the New Code must be read as articulated with the Procedural Code, Articles 760 and 761. According to these rules, an award can be nullified on the grounds of essential breach in the arbitral procedure; when the tribunal renders the award beyond the permitted term; the points at dispute were exceeded; or in the presence of incompatible decisions in the operative part of the award. The grounds contained in the relevant articles were explained in 2014 as follows:
- An essential breach of procedure (falta esencial del procedimiento) constitutes a breach of principles to the extent that a true non-existence of due process can be affirmed.
- When the award is rendered beyond term, it could entail the loss of arbitral jurisdiction.
- When the award exceeds the points at dispute, it constitutes a breach of the principle of congruence.
- When the resolutory part of the award displays incompatible decisions, this in turn renders the award ineffective.
As a result, even before the enactment of the New Code and ICAL, the Commercial Chamber of Appeals declared that an annulment request could not disguise a review of the merits of the award, since this would alter arbitration by depriving it of its benefits.
For many years, arbitration in Argentina was in a constant struggle against those who resisted it. Today, those doubts seem to have been left behind and the situation has changed radically. The country has a modern arbitration legal framework, in line with the world’s leading jurisdictions. Judges, authors and arbitration practitioners have positively received these legislative milestones, interpreting them in an arbitration-friendly manner. Added to this is the existence of a wide range of specialist lawyers and arbitrators, state-of-the-art infrastructure and experienced arbitral institutions.
It is true that, as the saying goes, ‘Rome was not built in a day’. The consolidation of a reliable and attractive arbitral seat to receive international arbitration, such as London, Paris or New York, does not happen overnight. Even so, Argentina seems to be on the right track to becoming a leading arbitration jurisdiction in the region and worldwide.
 Ricardo A Ostrower is a partner and Martín Vainstein and Victoria Rodríguez Goyena are senior associates at Marval, O’Farrell Mairal. The authors thank and appreciate Mr Juan Pablo Blasco for his collaboration in research.
 See Law No. 26,944, published in the Official Gazette on 8 October 2014 and entered into force on 1 August 2015, available at http://servicios.infoleg.gob.ar/infolegInternet/anexos/235000-239999/235975/norma.htm [accessed 7 April 2023].
 See Law No. 27,449 published in the Official Gazette on 26 July 2018 and entered into force on 3 August 2018, available at http://servicios.infoleg.gob.ar/infolegInternet/anexos/310000-314999/312719/norma.htm [accessed 7 April 2023].
 See Message by the Executive Branch, elevating the Bill to the Congress, No. 132/16, ¶ 3.
 See Argentine National Constitution, Article 1.
 See id., Articles 75.12 and 121.
 See id., Article 31.
 See id., Article 75.22.
 See id., Article 31.
 Other relevant arbitration treaties signed by Argentina are the Inter-American Convention on extraterritorial validity of foreign judgments and arbitral awards (CIDIP II, Montevideo, 1979) and the Acuerdos de Arbitraje Comercial de Mercosur (1998).
 As explained in the Fundaments of the Preliminary Bill of the New Code, p. 672, available at http://www.saij.gob.ar/docs-f/ediciones/libros/codigo_civil_comercial.pdf [accessed 7 April 2023].
 According to Article 75.13 of the Argentine National Constitution, as proposed by Caivano, Roque J and Ceballos Ríos, Natalia M in Tratado de Arbitraje Comercial Argentino: Comentario Exegético y Comparado de la Ley 27.449, La Ley, Buenos Aires, 2020, p. 70.
 As affirmed by the Supreme Court of Argentina in the case of Correa, Bernabé v. Barros, Mariano R., of 1923, among others. See also Caivano and Ceballos Ríos in Tratado de Arbitraje Comercial Argentino: Comentario Exegético y Comparado de la Ley 27.449, La Ley, Buenos Aires, 2020, § 4.3.1 and Rivera, Julio César, ‘El arbitraje en el Proyecto de Código sancionado por el Senado. Prejuicios y errores’, in La Ley, AR/DOC/4643/2013, p. 3.
 In particular, the Renewable Energy Regime (created by Decree No. 882/2016) and the Public-Private Participation Contract Regime (created by the Law No. 27,328 and Decree No. 118/2017).
 Rivera, Julio César, ‘El arbitraje en el Proyecto de Código sancionado por el Senado. Prejuicios y errores’, in La Ley, AR/DOC/4643/2013, p. 4.
 Federal and provincial procedural arbitration law, nevertheless, is now outdated and expected to adjust to provisions of the New Code.
 The exclusivity claimed by the International Commercial Arbitration Law (ICAL) is expressed in its Article 1 (translation): ‘This law will apply to international commercial arbitration, and will govern it exclusively, with due regard to any multilateral or bilateral treaty in force in the Argentine Republic.’ This is a departure from the original text of the UNCITRAL Model Law. These rules, however, stand three exceptions: (1) the application of arbitration treaties (ICAL, Article 1), (2) provisions on arbitrability contained in any other Argentine law (ICAL, Article 5), and (3) Article 2605 of the New Code, which allows choice of forum clauses in foreign seats in patrimonial and international matters, except when Argentine judges have exclusive jurisdiction, or the choice is forbidden by law (ICAL, Article 107).
 Legislation based on the Model Law has been adopted by Mexico (1993), Venezuela (1998), Paraguay (2002), Chile (2004), Peru (2008), Costa Rica (2011) and Uruguay (2018). However, only Peru and Costa Rica have taken the Model Law in its 2006 version.
 As stated in the message by the Executive Branch elevating the Bill to the Congress No. 132/16, ¶ 4.
 For a comprehensive description of the ICAL, see Marval News, New International Commercial Arbitration Law in Argentina, 2 August 2018, available at https://www.marval.com/publicacion/nueva-ley-de-arbitraje-comercial-internacional-en-la-argentina-13212&lang=en [accessed on 7 April 2023].
 ICAL, Article 2 (translation): ‘The provisions of this law, except for Chapters 2 and 3 of Title II, Chapters 4 and 5 of Title V and Chapters 1 and 2 of Title IX, shall apply only if the seat of arbitration is located in the territory of the Argentine Republic.’
 ICAL, Article 3.b.I. (translation): ‘An arbitration is deemed international when: . . . b) One of the following places is located outside the State in which the parties have their establishments: I. The seat of arbitration, if it has been determined in the arbitration agreement or in accordance with the arbitration agreement.’
 Thus, Article 1.3.c of the Model Law is not included in the text of the ICAL.
 (Translation): ‘The competence attributed to national tribunals is non-extendable. Without prejudice of the stipulations in international treaties, article 12, section 4, of Law 48, the exception is territorial competence in matters that are exclusively patrimonial, which can be extended upon parties’ agreements. If these matters are of an international nature, the extension can be admitted even in favour of foreign judges or arbitrators acting outside the Republic, except in cases where the Argentine tribunals have exclusive jurisdiction or when the extension is forbidden by law.’
 Kielmanovich, Jorge L, Código Procesal Civil y Comercial de la Nación Comentado y Anotado, Volume I, Abeledo Perrot, Ciudad Autónoma de Buenos Aires, 2015, Article 1.
 See Uzal, Maria E, ‘La internacionalidad, la arbitrabilidad y el derecho aplicable en la nueva Ley de Arbitraje Comercial Internacional’ in La Ley, AR/DOC/3490/2018, p 5. New Code, Article 2605 (translation): ‘Forum Choice Agreement. In patrimonial and international matters, the parties are allowed to extend jurisdiction to judges or arbitrators outside the Republic, except when the Argentine judges have exclusive jurisdiction or the extension if forbidden by law.’ ICAL, Article 107 (translation): ‘Repealing article 519 bis of the National Code of Civil Procedure. The provisions of Chapter 1 of Title I of this law shall not prevent the application of article 2605 of the Civil and Commercial Code.’
 Boggiano, Antonio, ‘Observaciones preliminares a la ley argentina de Arbitraje Comercial Internacional 27.449’, in El Derecho, 21/08/2018, p. 2.
 Caivano and Ceballos Ríos in Tratado de Arbitraje Comercial Argentino: Comentario Exegético y Comparado de la Ley 27.449, pp. 62–63.
 ICAL, Article 104.b.I (translation): ‘The recognition or enforcement of an arbitral award may only be denied, regardless of the country in which it was rendered: . . . b) When the court verifies: I. That, according to Argentine law, the object of the dispute is not arbitrable.’ See Uzal, Maria E, ‘La internacionalidad, la arbitrabilidad y el derecho aplicable en la nueva Ley de Arbitraje Comercial Internacional’ in La Ley, AR/DOC/3490/2018, p. 4.
 ICAL, Article 6 (translation): ‘For the purposes of article 1, any legal relationship, contractual or non-contractual, of private law or governed predominantly by it in Argentine law shall be deemed commercial. The interpretation will be broad and, in case of doubt, it should be decided that it is a commercial relationship.’
 Details about the differences between ICAL and the Model Law can be consulted in Caivano, Roque J and Sandler Obregón, Verónica, ‘La nueva Ley Argentina de arbitraje commercial internacion-al’, in Arbitraje, Vol. XI, No. 1, 2018, pp. 575–600.
 For instance, unlike the Model Law, ICAL states in its Article 1 that such law shall govern exclusively international commercial arbitration.
 Articles 736 to 773.
 According to the Fundaments of the Bill preceding the New Code, p. 672, available at http://www.saij.gob.ar/docs-f/ediciones/libros/codigo_civil_comercial.pdf [accessed 7 April 2023].
 At present, there is a draft amendment to the arbitration chapter of the New Code, which is currently pending before the National Legislative Branch, that seeks to correct these deviations.
 See Argentine Supreme Court’s decisions in Ricardo Agustín López, Marcelo Gustavo Daelli Juan Manuel Flo Díaz, Jorge Zorzópulos v. Gemabiotech SA s organismos externos, 5 September 2017 and Estado Nacional – Procuración del Tesoro Nacional v. (nulidad del laudo del 20-III-09) s recurso directo, 6 November 2018, in which the Court decided that the setting aside of an arbitral award is limited to the specific grounds for annulment and refused to analyse the merits of the case in the context of such recourse.
 See Brazil-David, Renata: ‘International Commercial Arbitration Involving a State Party and the Defense of State Immunity’, in Am. Rev. Int’l Arb. 22 (2011): 241; see also ‘ICC Commission Report on States, State Entities and ICC Arbitration’, International Chamber of Commerce (ICC) 2012, available at https://iccwbo.org/publication/icc-arbitrationcommission-report-on-arbitration-involving-states-and-state-entities-under-the-icc-rules-ofarbitration [accessed 7 April 2023].
 See ICC Dispute Resolution 2021 Statistics, available at https://icclebanon.org/wp-content/uploads/2022/10/22BUL2.pdf [accessed 24 April 2023].
 For a comprehensive analysis on this matter, see Tawil, Guido Santiago and Minorini Lima, Ignacio, ‘El Estado y el arbitraje: Primera aproximación’, in Revista Argentina del Régimen de la Administración Pública – Rap. No. 337 (Buenos Aires 2006); and Grigera Naón, Horacio, ‘El Estado y el arbitraje con particulares’, in Revista Jurídica de Buenos Aires, II-III (1989), p. 127.
 Article 1649. Arbitration under the New Code was considered for dispute resolution between companies, as expressed by the Argentine Supreme Court’s Justice Lorenzetti, one of the authors of the original bill during the debates (translation): ‘It is important to note that arbitration is thought of as a way of resolving disputes between companies; that is, it does not apply to consumer relationships nor does it apply to labour or family relationships. However, between companies it is very important that there be arbitration, because Argentina has a very low level of use of arbitration compared with Brazil or Peru. Between companies, if they are equal, and they can afford an arbitration proceeding, it is a very good instrument to reduce the litigation and the costs of litigation.’ Reunión de la Comisión Bicameral para la Reforma, Actualización y Unificación de los Códigos Civil y. Comercial de la Nación, 14 August 2012.
 New Code, Article 1651.
 See Rivera, Julio C (h) and Vainstein, Martín, ‘The term “commercial” under Argentina’s International Commercial Arbitration Law and its implications for state arbitrations’, in https://www.ibanet.org/article/45ae3c51-5d80-43f7-bcfa-9dba505418e5 [accessed 7 April 2023].
 National Constitution, Article 116.
 Argentine Supreme Court of Justice, Techint Compañía Técnica Internacional S.A.C.E. e I. v. Empresa Nuclear Argentina de Centrales eléctricas en liquidación y Nucleoeléctrica Argentina S.A., 5 August 2007.
 ‘. . . whether or not the arbitration agreement or contract has been concluded orally, by conduct, or by other means.’
 ‘The term “agreement in writing” shall include an arbitral clause in a contract or an arbitration agreement, signed by the parties or contained in an exchange of letters or telegrams.’
 UNCITRAL’s Recommendation regarding the interpretation of Article II, Paragraph 2, and Article VII, Paragraph 1, of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, done in New York, 10 June 1958, adopted by the United Nations Commission on International Trade Law on 7 July 2006 at its 39th session, available at https://uncitral.un.org/en/texts/arbitration/explanatorytexts/recommendations/foreign_arbitral_awards [accessed 7 April 2023].
 ICAL, Article 5 (translation): ‘This law shall not affect any other Argentine law by virtue of which certain controversies are not subject to arbitration or can be submitted to arbitration solely in accordance with provisions other than those herein.’
 Rivera, Julio C, ‘Orden público en el arbitraje comercial’, in La Ley, AR/DOC/3876/2015, p. 3.
 National Chamber of Appeals in Commercial Matters, Chamber D, Francisco Ctibor SACI y F v Wal-Mart Argentina SRL s Ordinario, 20 December 2016.
 New Code, Article 1651.
 The second paragraph of Article 1656 of the New Code states that ‘[i]n case of doubt, the better efficacy of the arbitration contract must prevail’. Such principle was affirmed by the National Chamber of Appeals in Commercial Matters, Chamber D, Francisco Ctibor S.A.V.I. y F v. Wal-Mart Argentina SRL s Ordinario, 20 December 2016.
 National Chamber of Appeals in Commercial Matters, Chamber C, Servicios Santamaría S.A. v. Energía de Argentina S.A. s Ordinario, 24 May 2018; Chamber D, Soluciones Integrales SRL v Ternium Argentina SA s Ordinario, 8 February 2022.
 National Chamber of Appeals in Commercial Matters, Chamber C, Vanger SRL v. Minera Don Nicolas SA s Ordinario, 6 June 2019.
 See Fernández Arroyo, Diego P and Vetulli, Ezequiel H, ‘El nuevo contrato de arbitraje del Código Civil y Comercial: ¿Un tren en dirección desconocida?’ in La Ley, AR/DOC/2992/2015, p. 6; Caramelo, Gustavo, Herrera, Marisa and Picasso, Sebastián, Código Civil y Comercial de la Nación Comentado (Tomo IV - Libro Tercero. Artículos 1251 a 1881), Infojus, Buenos Aires, 2015, p. 353; Rothenberg, Mónica, ‘Arbitrabilidad de los contratos por adhesión’ in La Ley, AR/DOC/2753/2019, p. 7; Aicega, María Valentina, Alterini, Ignacio, Alterini, Jorge Horacio, Gómez Leo, Osvaldo and Leiva Fernández, Luis, ‘Código Civil y Comercial Comentado’, Tratado exegético (T° 7 – Arts. 1378 a 1707 – Contratos en particular), La Ley, Buenos Aires, 2015, p. 969.
 National Chamber of Appeals in Commercial Matters, Chamber E, Travel CBA SRL v. Samsonite Argentina S.A. s Ordinario, 27 August 2019; Chamber F, Sur Mobile SRL v. Telecom Argentina S.A. s Ordinario, 19 March 2019. New Code, Article 1649(d) states that disputes concerning adhesion contracts, whatever their object may be, are excluded from arbitration agreements.
 As explained in Rivera, Julio C, ‘El arbitraje en Argentina a través de la jurisprudencia’ in La Ley, AR/DOC/3232/2018, Section IV, p. 7. See Supreme Court of Justice, Recurso de hecho deducido por Nucleoeléctrica Argentina S.A. en la causa Techint Compañía Técnica Internacional S.A.C.E. e I. v Empresa Nuclear Argentina de Centrales Eléctricas.
 ‘. . . debe estarse a la mayor eficacia del contrato de arbitraje.’
 National Chamber of Appeals in Commercial Matters, Francisco Ctibor S.A.V.I. y F v. Wal-Mart Argentina SRL s Ordinario, 20 December 2016.
 National Chamber of Appeals in Commercial Matters, Chamber C, Texas Gulf Holdings LLC v. Eco Energy CDL Op. Ltd. Sucursal Argentina y otros s Ordinario, 19 April 2022.
 ICAL, Article 24 (translation): ‘Notwithstanding the provisions of articles 25 and 26, the parties may freely agree on the procedure for the appointment of the arbitrator or arbitrators. A clause that confers a privileged position on a party in terms of the appointment of arbitrators is null and void. In the absence of such agreement: a) In an arbitration with three (3) arbitrators, each party will appoint one (1) arbitrator and the two (2) arbitrators so appointed will appoint the third; if a party fails to appoint the arbitrator within thirty (30) days of receipt of a request from the other party to do so, or if the two (2) arbitrators are unable to agree on the third arbitrator within thirty (30) days counted from his appointment, the appointment will be made, at the request of one of the parties, by the competent court in accordance with article 13; b) In arbitration with a sole arbitrator, if the parties cannot agree on the appointment of the arbitrator, the arbitrator will be appointed, at the request of either party, by the competent court in accordance with article 13.’
 See Caivano and Ceballos Ríos in Tratado de Arbitraje Comercial Argentino: Comentario Exegético y Comparado de la Ley 27.449, p. 298.
 Article 28.
 Federal Court of Appeals in Contentious-Administrative Matters of the City of Buenos Aires, Entidad Binacional Yacyretá v. Eriday et al., 27 September 2004, and other related proceedings, as described in Parodi, Gustavo, ‘El Caso Yaciretá - o cómo retroceder 80 años - Análisis y comentarios’, in Revista Internacional de Arbitraje, Vol. 4, January-June 2006, pp. 203–55.
 This is a general opinion on arbitration and judicial interference without it being a specific assesment of the Yacyretá case, or any other. Thus, the text here expresses what the future tendency authors expect to be.
 Official website of CEMARC (Centro de Mediación y Arbitraje Comercial de la Cámara Argentina de Comercio), available at https://www.cac.com.ar/institucional/mediacion_y_arbitraje__mediation_and_arbitration_1668 [accessed on 7 April 2023].
 Official website of the Tribunal de Arbitraje General de la Bolsa de Comercio de Buenos Aires, available at https://www.labolsa.com.ar/institucional/tribunal/ [accessed 7 April 2023].
 ICAL, Article 86. As explained by Caivano and Ceballos Ríos in Tratado de Arbitraje Comercial Argentino: Comentario Exegético y Comparado de la Ley 27.449, p. 663, in reference to Article 8.1 of the Pacto de San José de Costa Rica.
 ICAL, Article 99.a.I. Article 32 of the New Code provides that a judge can restrict a person’s capacity for certain acts when such person suffers an addiction or permanent or prolonged mental alteration that is serious enough and as long as the exercise of that person’s full capacity could result in damage to his or her own person or assets.
 ICAL, Article 100.
 ICAL, Article 103. This Article is based on Article IV of the New York Convention, which requires that: ‘1. To obtain the recognition and enforcement mentioned in the preceding article, the party applying for recognition and enforcement shall at the time of application, supply: (a) The duly authenticated original award or a duly certified copy thereof.’ In this context, it was understood that ‘certification’ of a copy means a written declaration that the instrument in question is a true and complete copy of the tribunal’s original award (UNCITRAL, Guide on the Convention on the Recognition and Enforcement of Foreign Arbitral Awards 109, paragraphs 43–44, 2016). In Argentina, a certified copy is done through a notary public who attests to the authenticity of the copy with respect to the original document.
 ICAL, Article 104b.II.
 Argentine Supreme Court of Justice, EN- Procuración del Tesoro Nacional v. (nulidad del laudo del 20-III-09) s recurso directo, 6 November 2018.
 National Chamber of Appeals in Commercial Matters, Chamber A, Monsanto Argentina S.R.L. v. Vucko, Mario Celestino s Ejecutivo, 5 October 2021.
 National Chamber of Appeals in Commercial Matters, Chamber E, MS Master Sweets v. Mondelez Argentina S.A. s Recurso de Queja, 5 October 2021.
 National Chamber of Appeals in Commercial Matters, Chamber C, Pérez Iturraspe, Teresa Manuela v. Aufiero Jorge Félix s Organismos Externos, 9 March 2022.
 National Chamber of Appeals in Commercial Matters, Chamber D, 19 December 2017, Pan American Energy LLC (Sucursal Argentina) v. Metrogas SA (Chile) s organismos externos.
 Journal of Sessions, Chamber of Deputies, 17th Session, 12th Ordinary Session, 12 October 2014, available at https://www.hcdn.gob.ar/secparl/dgral_info_parlamentaria/dip/debates/leyes_24001_27000.html [accessed on 7 April 2023].
 See, for instance, Aguilar, Fernando, ‘Arbitraje privado. El artículo 1656, in fine, del Código Civil y Comercial de la Nación. Interpretación’, in Revista del Colegio de Abogados de la Ciudad de Buenos Aires, December 2005, pp. 89–108.
 See Ostrower, Ricardo A and Pefaur, Guillermo, ‘La Justicia se expidió sobre la apelabilidad del laudo dictado según Reglamento de Arbitraje UNCITRAL’, available at: https://abogados.com.ar/la-justicia-se-expidio-sobre-la-apelabilidad-del-laudo-dictado-segun-reglamento-de-arbitraje-uncitral/32889 [accessed 28 September 2023].
 Rivera, Julio C, ‘Orden público en el arbitraje comercial’, in La Ley AR/DOC/3876/2015, p. 3.
 See Rivera, Julio C, ‘El arbitraje en Argentina a través de la jurisprudencia’ in La Ley, AR/DOC/3048/2007, Section X, p. 14 (translation): ‘The disproportionate extension given by the Cartellone judgment to the judicial power of review of the award is negative because it gives effectiveness to the “repentance” of the waiver of the right to appeal.’
 Argentine Supreme Court, José Cartellone Construcciones Civiles S.A. v. Hidroeléctrica Norpatagónica S.A. o Hidronor S.A., 1 June 2004. The Court considered that waiving the appeal of an arbitral award does not entail waiving the appeal of awards when they oppose public policy, in a way that the award could still be challenged if proven to be unconstitutional, illegal or unreasonable. In the decision, such considerations concerned the application of a certain interest rate, that in the Court’s view would lead to a disproportionate and unreasonable result to the debtor.
 National Chamber of Appeals in Commercial Matters, Chamber D, Pan American Energy LLC (Sucursal Argentina) v. Metrogas SA (Chile) s organismos externos, 19 December 2017, vote by Justice Vassallo.
 Noodt Taquela, María Blanca, ‘Incidencia de los valores globales en la evaluación del orden público internacional en el reconocimiento y la ejecución de los laudos arbitrales extranjeros’, in La Ley, AR/DOC/3752/2018.
 Rivera, Julio César (h), ‘La revisión constitucional de laudo arbitral en Argentina’, in elDial. com - DC30A6.
 National Chamber of Appeals in Commercial Matters, Chamber D, Tinogasta Solar v. Cía Administradora del Mercado Mayorista Eléctrico S.A. s Organismos Externos, 13 October 2022.
 EN - Procuración del Tesoro Nacional v. (nulidad del laudo del 20-111-09) s recurso directo, considerando 14°, 6 November 2018.
 In the Chamber’s own words (translation): ‘In this sense, the annulment of an award on the grounds examined must be understood as a kind of pronounced exceptionality, which can be reached only in extreme cases, and a minimalist criterion must prevail according to which invalidity appears only in the face of a serious and manifest error of the award in the application of the public policy rule . . . invalidity cannot be declared by a simple formal or abstract violation, nor by a misapplication of the public policy rule, since not even an error of law would be enough, by itself, to affirm the presence of an award contrary to public policy’.
 National Chamber of Appeals in Commercial Matters, Chamber F, Caputo SA v. Emprendimientos Inmobiliarios Arenales SA y otra s Incumplimiento de Contrato, 10 March 2014.