Arbitration

Last verified on Thursday 22nd March 2018

Argentina

Julio César Rivera and Julio César Rivera Jr
Rivera & Asociados

    Legislation

  1. 1.

    Which legislation governs the enforcement of international commercial arbitration awards and arbitral agreements in international business contracts, and international commercial arbitration proceedings?

  2. The enforcement of international arbitration agreements is primarily governed by article II of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention), article 1656 of the Civil and Commercial Code and the pertinent procedural rules set forth in the National Civil and Commercial Procedural Code.

    The enforcement of non-international arbitration agreements is governed by article 1656 of the Civil and Commercial Code and the National Civil and Commercial Procedural Code.

    The recognition and enforcement of foreign arbitral awards is governed by the treaties signed and ratified by Argentina: the New York Convention or the Inter-American Convention on International Commercial Arbitration (Panama Convention).

    The recognition and enforcement of foreign arbitral awards outside the scope of the treaties is governed by sections 517 and 519 bis of the National Civil and Commercial Procedural Code.  

  3. 2.

    Has the UNCITRAL model arbitration law been adopted in your jurisdiction? 

  4. No, the UNCITRAL model arbitration law has not been adopted in Argentina yet. The Executive Power has drafted a bill based on the Model Law would apply exclusively to international commercial arbitrations and sent it to the Congress. It has been approved by the Senate last year and it is currently being analysed by the House of Representatives.

    Conventions

  5. 3.

    Is your jurisdiction a party to both the New York Convention and the Panama Convention? Is it a party to any other conventions or treaties governing international commercial arbitration agreements, awards or proceedings? 

  6. Yes, Argentina is a party to both the New York Convention and the Panama Convention.

    Argentina is also party to the Montevideo Treaties on procedural matters of 1889 and 1940, the Inter-American Convention of Extraterritorial Validity of Foreign Judgements and Arbitral Awards of 1979 (part of the CIDIP II conventions), Las Leñas Protocol on Jurisdictional Cooperation and Assistance in Civil, Commercial, Labour and Administrative Matters of 1992, the Buenos Aires Protocol on International Jurisdiction in Contractual Matters of 1994 and International Commercial Arbitration Agreement of MERCOSUR of 1998.

  7. 4.

    Is your jurisdiction a party to the ICSID Convention? Have steps been taken to renounce the Convention or withdraw from ICSID? 

  8. Yes, Argentina is a party to the ICSID Convention since 18 November 1994. It was approved by Law 24,353.

  9. 5.

    Is your jurisdiction a party to other conventions that directly affect the enforceability of arbitration agreements, rights or awards?

  10. No.

    Commercial arbitral agreements and arbitrability

  11. 6.

    Some jurisdictions have permitted parties to compel resolution of a dispute by means of arbitration only if the agreement to arbitrate was entered into after a dispute has arisen. Is a pre-dispute arbitration clause to resolve international commercial disputes by arbitration enforceable?

  12. The National Civil and Commercial Procedural Code requires the parties to execute a compromiso once the dispute has already arisen, irrespective of whether there is an arbitration agreement. This compromiso must fulfil the formal requirements set forth in article 739 of the Procedural Code. These procedural provisions are only applicable in ad hoc arbitrations and some commentators have interpreted that they have been implicitly derogated by the Civil and Commercial Code.

  13. 7.

    What are the requirements for an enforceable arbitral agreement? 

  14. Article 1650 of the Civil and Commercial Code provides that the agreement must be in writing. Since article 1650 does not provide any definition of the “in writing” requirement, the general rules of contracts apply. In this regard, article 286 of the Code provides – with respect to bilateral acts and contracts in general – that the writing requirement may be satisfied by private documents (signed or not). Therefore, as contracts in general, the consent to the arbitration agreement may also be proved by any conduct that shows its acceptance (article 979 of the Civil and Commercial Code).

    However, article 1651 of the Civil and Commercial Code establishes that disputes related to adhesion contracts may not be subject to arbitration. However, this is a formal requirement of the arbitration agreement hidden as a non-arbitrability provision. 

    Additionally, article 1651 establishes that arbitral agreement may be included in a contract, in an independent agreement, in the by-laws of a company or a certain set of rules. It may also arise from a reference made within a contract to another document, as long as the contract is in writing and the reference implies that the arbitral clause shall be part of it. 

  15. 8.

    Is there subject matter that is not legally subject to arbitration in the context of an international business transaction?

  16. There is no distinction between international and domestic arbitration with regarding the matters that cannot be subject to arbitration.

    Pursuant to article 737 of the National Civil and Commercial Procedural Code matters that cannot be subject to compromise or settlement may not be submitted to arbitration.

    Article 1651 of the Civil and Commercial Code adds that disputes related with the civil status of capacity of a person, with family matters, adhesion contracts, consumer disputes (see also reply to question 6) and labour disputes may not be subject to arbitration. The parties may not either agree to arbitrate disputes that compromise the public order (article 1649).

  17. 9.

    Are there any limits to the ability of a state or an instrumentality of the state to enter into an agreement to arbitrate in your jurisdiction? If so, under what circumstances may the state or its instrumentalities enter into such an agreement? Please describe the requirements that must be met for the state to enter into a binding arbitration agreement.

  18. The state or an instrumentality of the state may enter into an arbitration agreement if they are authorised by statute.

  19. 10.

    Does the law specify whether an arbitration will be in equity or under law if the parties do not expressly specify the nature of the arbitration in the agreement?

  20. The Civil and Commercial Code establishes that in the absence of express agreement between the parties the arbitration shall be under law (article 1652). This rule prevails over article 766 of the National Civil And Commercial Code that sets forth the opposite default rule. 

  21. 11.

    How does the law limit party autonomy with respect to the terms of an arbitral agreement? 

  22. The Civil and Commercial Code contains the following provisions concerning the regulation of party autonomy:

    • the parties may exclude the arbitrators power to decide on their own jurisdiction (article 1654);
    • the parties may exclude the arbitrators’ power to issue preliminary measures (article 1655); 
    • the parties may choose an arbitral institution to administer the arbitration (article 1657)
    • the parties may choose the seat, language, procedure, the term in which the arbitrators shall render the award, confidentiality of the proceedings and distribution of costs (article 658);
    • the parties may decide on the number of arbitrators and procedure for their appointment (article 1659);
    • the parties may agree on the nationality, profession or experience of the arbitrators (article 1660);
    • the parties may agree that the challenge of an arbitrator be solved by the remaining arbitrators (article 1663);
    • the parties may not grant a privilege to one of them with regard to the appointment of arbitrators (article 1661); and
    • the parties may waive the recourse of appeal. The parties may not waive the annulment recourse nor the request for clarification (article 760 of the National Civil and Commercial Procedural Code).
  23. 12.

    Under what circumstances does the law allow a non-signatory to an arbitral agreement to pursue a claim in an international arbitration against a party that signed the arbitral agreement?

  24. Although there are no specifics rules on this issue, the Commercial Court of Appeals allowed a guarantor in a purchase and sale contract to invoke the arbitration clause against the buyer (Cemaedu v Envases EP, 2010). The Court’s decision was based on the wording of the arbitration clause, which did not contain any language excluding the guarantor from the possibility of invoking it. 

  25. 13.

    Under what circumstances does the law allow a signatory to an arbitral agreement to pursue a claim in an international arbitration against a party that did not sign the arbitral agreement?

  26. Although there are no specific rules on this issue, it is possible – based on article 54 of the Argentine Companies Act – to extend the arbitration clause to a corporation that has used the corporate form to produce fraud or other illegal acts. 

    Additionally, since consent to the arbitration agreement may also be proved by any conduct that shows its acceptance (see question 7) it would be possible to extend it to a non-signatory that has been actively involved in the negotiation, performance and termination of the main contract containing the arbitration agreement (depending on the specific circumstances of the case).

  27. 14.

    Under what circumstances may a non-signatory to an arbitral agreement compel arbitration of a claim asserted against it in a court of law by a signatory of the arbitral agreement?

  28. Under the same circumstances described in question 13.

  29. 15.

    Is there any law in your jurisdiction specifically governing the arbitrability of consumer or labour disputes?

  30. Article 1651 of the Civil and Commercial Code provides that consumer and labour disputes may not be subject to arbitration. 

    However, with respect to consumer disputes, Decree 276/1998 been created a National System of Consumer Arbitration. Consumer arbitration may only be initiated by the consumer once the dispute has arisen. Therefore, arbitration clause inserted in consumer contracts are not valid.         

  31. 16.

    Does your jurisdiction provide for class-action arbitration or group arbitration? If so, are there any limitations to the arbitrability of such claims or requirements that must be met before such claims may be arbitrated? 

  32. No, Argentine law does not have any specific provision on class arbitration. Pre-dispute arbitration agreements in consumer contracts are invalid under Argentine law. So it is not possible to force consumers to go into arbitration (irrespective of whether class action is available or not in arbitration).

  33. 17.

    Are contractual waivers precluding arbitration of claims on a class-wide basis enforceable? Under what circumstances have such waivers been upheld or set aside by the courts?

  34. Any waiver of class action (either in arbitration or in courts) contained in a consumer contract is invalid.

  35. 18.

    If the parties’ contract is silent on the issue of class-action arbitration, is class-action arbitration allowed under the law of your jurisdiction?

  36. There are no precedents in Argentina.

  37. 19.

    Are foreign arbitral institutions without a physical presence in your jurisdiction authorised to administer arbitrations in your jurisdiction? Does the law require that a foreign institution be licensed under local law in order to administer an arbitration seated there?

  38. Yes, article 1657 of the Civil and Commercial Code expressly provides that arbitration may be administered by local or foreign arbitral institutions. They do not need to be licensed under local law. 

    Arbitral institutions and arbitrators

  39. 20.

    Is an arbitral award issued in an arbitration seated in your jurisdiction under the auspices of a foreign institution (such as the ICC, ICDR, LCIA or similar institutions) vulnerable to challenge because it was issued under the auspices of a foreign institution?

  40. No, on the contrary, ie, commercial courts have praised ICC arbitrations for the supervision and control of the proceedings (Aronna v Petrobras, 2013). 

  41. 21.

    Does the law require that arbitrators in international arbitrations be citizens or residents of your jurisdiction?

  42. No, article 1660 of the Civil and Commercial Code provides that any person with legal capacity may be an arbitrator. In practice, it is common to encounter foreign arbitrators in arbitrations seated in Argentina.

  43. 22.

    Does your law require that arbitrators in international cases be lawyers? 

  44. No, article 1660 of the Civil and Commercial Code provides that any person with legal capacity may be an arbitrator.

  45. 23.

    Does your jurisdiction provide immunity to arbitrators serving in an arbitration with its legal seat in your jurisdiction? Under what circumstances does such immunity apply or not apply? 

  46. No, Argentine law does not have any specific provision concerning arbitrators’ immunities. On the contrary, article 1662 of the Civil and Commercial Code the duties of arbitrators and article 745 of the National Civil and Commercial Procedural Code provides that arbitrators are liable for any breach of their duties that caused damages to the parties.

  47. 24.

    Are the fees of foreign arbitrators serving in an arbitration seated in your jurisdiction subject to taxation?

  48. According to article 5 of the Income Tax Law, any income generated from the performance of any act or activity in the territory of Argentina that could produce benefits is considered to come from an Argentine source regardless of the nationality, address or residence of its agent and that income is subject to taxation. It is debatable whether the fact that an arbitration is seated in Argentina would be considered enough to deem the activity of a foreign arbitrator to take place in Argentina irrespective of whether the activity was in fact performed in the territory.

  49. 25.

    Must arbitrators in international arbitrations be independent and impartial? What is the legal standard governing conflicts of interest and disclosure by arbitrators in international arbitrations?

  50. Yes, arbitrators must be, and remain, independent and impartial. Article 1663 of the Civil and Commercial Code provides that arbitrators may be challenged on the same grounds set forth for judges.

    Article 1662 of the Civil and Commercial Code sets forth the arbitrators’ ongoing duty to disclose any circumstance that may affect their independence or impartiality.

  51. 26.

    Will courts entertain requests to disqualify an arbitrator before the conclusion of an award? 

  52. In institutional arbitration, the challenge may be decided according to the institutional rules and the courts would not entertain any request to disqualify an arbitrator before the conclusion of the award. If the institution does not have any rule in this regard, the challenge shall be decided by domestic courts (article 1663 of the Civil and Commercial Code).

    In ad hoc arbitration, if the parties agree that the challenge must be decided by the other arbitrators (article 1663 of the Civil and Commercial Code), the courts should not, in principle, entertain any request to disqualify an arbitrator before the conclusion of the award. Only if nothing has been agreed by the parties shall the challenge be decided by domestic courts according to the procedure set forth in article 747 of the National Civil and Commercial Procedural Code.

    There are some isolated precedents in which domestic courts considered they had the power to review the decision taken by an arbitral institution concerning a challenge (See Entidad Binacional Yacyretá v Eriday, 2004). With the enactment of the new Civil and Commercial Court, this doctrine cannot be applied to arbitrations in which the new Code applies (arbitrations governed by private law). 

    Arbitral proceedings

  53. 27.

    Does the law require that arbitral proceedings seated in your jurisdiction be held in a specific language? 

  54. No, Argentine law does not require that arbitrations seated in Argentina be held in Spanish.

  55. 28.

    Can foreign lawyers serve as advocates in arbitral proceedings in your jurisdiction? If so, can they do so alone or must a local lawyer serve as co-counsel? 

  56. Yes, they can. It is a common practice. 

  57. 29.

    Are the fees of foreign lawyers earned for services rendered in connection with an arbitration seated in your jurisdiction subject to local taxation?

  58. According to article 5 of the Income Tax Law, any income generated from the performance of any act or activity in the territory of Argentina that could produce benefits is considered to come from an Argentine source regardless of the nationality, address or residence of its agent and that income is subject to taxation. It is debatable whether the fact that an arbitration is seated in Argentina would be considered enough to deem the activity of a foreign lawyer to take place in Argentina irrespective of whether the activity was in fact performed in the territory. If the activity was effectively performed within the Argentine territory, the lawyer’s income would be subject to taxation.

  59. 30.

    In what circumstances, if any, does your law allow the consolidation of multiple arbitral proceedings into a single proceeding?

  60. Argentine law does not have a specific provision regarding the consolidation of arbitral proceedings. 

  61. 31.

    Please describe common practice and usage in international arbitrations seated in your jurisdiction with respect to a party’s right to require an opposing party to produce documents pertinent to the dispute. 

  62. Under the National Civil and Commercial Procedural Code, parties may be requested to submit specific documents identified by the other parties. In international arbitrations seated in Argentina, parties tend to depart from the limited and narrow rules of production of documents under domestic law. In this regard, it is common practice that parties refer to the IBA Rules on the Taking of Evidence in International Commercial Arbitration which allows the parties to submit a “Request to Produce” specific documents or a narrow category of documents if they are relevant and material to the outcome of the case. Arbitrators usually use a Redfern Schedule to record the parties’ requests for disclosures, arguments on those requests and the arbitral tribunal’s decisions.  

  63. 32.

    Does the law impose a duty of confidentiality in arbitration? If so, on whom? 

  64. Parties may agree on the confidentiality of the arbitration (article 1658 of the Civil and Commercial Code). This agreement may be express (by inserting a confidentiality clause in the arbitration agreement) or implicit (by selecting certain institutional rules that provide for the confidentiality of arbitration proceedings under those rules). 

    When confidentiality is agreed by the parties, pursuant to article 1662(c) of the Civil and Commercial Code arbitrators have a duty to respect the confidentiality of the arbitration proceedings.

  65. 33.

    Does the law authorise third-party funding for international arbitration? Are there any ethical limitations imposed upon counsel to the parties that restricts the use of such funding?

  66. Argentine law does not contain any specific legal or ethical rule regarding third-party funding.

  67. 34.

    Are there any mandatory national rules of professional ethics that apply to counsel in an international arbitration in your jurisdiction? If so, are those rules applicable to counsel from another jurisdiction participating in an arbitration in your jurisdiction? 

  68. Argentine counsel are subject to the same ethical rules that apply to domestic litigation. Foreign lawyers are not in principle bound by these rules. 

  69. 35.

    Are there any mandatory rules on oath or affirmation for witnesses testifying in an arbitration in your jurisdiction that have to be administered prior to their testimony? If so, what are they? 

  70. There are no mandatory rules concerning oath or affirmation for witnesses.

  71. 36.

    Are there restrictions in your jurisdiction on the interviewing of witnesses in anticipation of hearings or giving of testimony?

  72. No. In practice, in international arbitrations, parties interview potential witnesses as allowed by the IBA Rules on Taking of Evidence.

    Court support for arbitration

  73. 37.

    Can arbitrators decide on their own jurisdiction? Is the principle of ‘Kompentenz-Kompetenz’ followed in the courts?

  74. Yes. Article 1654 of the Civil and Commercial Code provides that unless otherwise stated, the arbitration agreement provides the arbitrators with the power to decide on their own jurisdiction, which includes the power to rule on the existence or the validity of the arbitral agreement.

    Article 1656 recognises the negative effect of the Kompentenz-Kompetenz principle. It states that courts must refuse jurisdiction if the dispute is brought before them unless the arbitral tribunal has not been yet constituted and the arbitration agreement is manifestly void or inapplicable. 

    Before the enactment of the Civil and Commercial Code, Argentine Courts recognised the positive effect of the Kompentenz-Kompetenz principle, but did not acknowledge its negative effect. This lack of acknowledgement allowed for the filing of parallel proceedings. According to the Argentine Supreme Court, if there were conflicting decisions concerning the jurisdiction of the arbitral tribunal, the conflict had be solved by applying the procedural rules concerning conflict of jurisdictions between courts (Nidera v Rodríguez Álvares de Canale, 1990). In practice, this doctrine entailed that the jurisdictional conflict had to be decided by the Supreme Court itself and the arbitration proceeding would be suspended until a final decision was issued. 

  75. 38.

    Do the courts follow the principle of the independence and separability of the arbitration clause? 

  76. Article 1653 of the Civil and Commercial Code currently provides that the arbitration agreement is independent from the main contract to which it is related. Article 1653 also states the validity of the arbitration agreement is not affected if the main contract is declared null and void. Therefore. arbitrators maintain their jurisdiction to decide on each party’s claims even if the main contract is not valid.

    Even before the enactment of the Civil and Commercial Code, Argentine courts recognised the existence of the separability principle. See, for example, Commercial Court of Appeal, Camuzzi Argentina SA v Sodigas Sur SA (1999) and Federal Civil and Commercial Court, Smit International Argentina v Puerto Mariel (2011). 

  77. 39.

    Are arbitral tribunals empowered to grant interim relief? If so, how is that relief enforced in the courts? 

  78. According to article 1655 of the Civil and Commercial Code, arbitral tribunals have the power to grant interim relief, unless otherwise stated in the arbitration agreement. The enforcement of interim measures depends on domestic courts, which have the power to refuse the enforcement if the measure is unreasonable or entails a violation of constitutional rights. 

  79. 40.

    Can arbitrators issue orders, subpoenas or use other legal processes to compel the production of evidence by a third party or compel a third-party witness to appear before them? If so, will a court lend its aid in enforcing such an order against a recalcitrant third party? Also, if arbitrators can issue orders, subpoenas or use other legal processes to compel the production of evidence by a third party or compel a third-party witness to appear before them, are there any limitations to their doing so? 

  80. No, arbitrators do not have the power to compel the production of evidence by a third party or to compel a third-party witness to appear before them. Arbitrators do not have the power to enforce any decision and should always request the assistance of a court as provided by article 753 of the National Civil and Commercial Procedural Code.  

  81. 41.

    Can a party to an arbitration seek relief from the court to obtain evidence in aid of an international arbitration? What is the scope of such relief?

  82. Parties are free to apply to a court to request an interim or preliminary  measure irrespective of whether the arbitral tribunal has been constituted or not (article 1655 of the Civil and Commercial Code). The scope of the relief will depend on the facts of the case. With respect to interim measures, an applicant will have to show a likelihood of irreparable harm unless the measure is granted (periculum in mora) and a substantial likelihood of success on the merits (fumus boni juris). In the case of preliminary measures, an applicant needs to show that that the production of the evidence requested would be impossible or very difficult at the evidence stage in the arbitration.

    Arbitrators may also request the assistance of a court to compel the production of evidence by a third party or to compel a third-party witness to appear before them (article 753, National Civil and Commercial Procedural Code). 

  83. 42.

    Can a party in an international commercial arbitration seek interim or provisional relief from a court without first seeking relief from the arbitral tribunal?

  84. Yes. This type of request does not entail a waiver of the right to go to arbitration nor does it affect the power of the arbitrators (article 1655 of the Civil and Commercial Code).

  85. 43.

    Have the courts issued injunctions enjoining arbitral proceedings from going forward? 

  86. In some exceptional cases, Argentine courts have issued injunctions enjoining arbitral tribunal proceedings from going forward based on the lack of jurisdiction of the arbitral tribunal. For instance, in Entidad Binacional Yacyretá v Eriday (2004), a federal judge suspended arbitral proceedings based on the fact that arbitrators had not included certain statements from claimants in the Terms of Reference and had submitted it to the International Court of Arbitration for approval, as provided in the ICC Rules when one party refuses to sign it. The judge considered it had the power to review the illegality, unreasonableness or unconstitutionality of procedural decisions issued by the arbitrators (at least those related to the Terms of Reference give his manifest relevance) even though they were not final awards.

  87. 44.

    Does the law provide that post-award interest accrues on an unpaid arbitral award? 

  88. Under Argentine law, interest runs automatically on unpaid arbitral awards. A Commercial Court would likely apply the rate charged by the Banco de la Nación Argentina for its 30-day discount transactions. 

  89. 45.

    Is an arbitral tribunal empowered to award attorneys’ fees to the prevailing party or is that power reserved to the courts?

  90. Yes, arbitral tribunals have the power to award attorneys’ fees unless otherwise stated in the arbitration agreement.

  91. 46.

    Is an arbitral tribunal empowered to award punitive or exemplary damages? Is the arbitral tribunal empowered to award interest? 

  92. The answer depends on the law applicable to the merits. Under Argentine law, a court (or an arbitral tribunal) has the power to award interest but it cannot award punitive damages, which are expressly limited to consumer actions (article 52 bis of Law 24.240). 

    Awards - content

  93. 47.

    What are the grounds for challenging or vacating an international award issued in an arbitration seated in your jurisdiction? 

  94. According to articles 760 and 761 of the National Civil and Commercial Procedural Code, an award may be annulled on the following grounds:

    • essential procedural errors: courts may only annul an award based on the existence of formal flaws that affect the due process but may not review the justice or injustice the case
    • award rendered after the term for making the award has elapsed;
    • award decides issues not submitted to the Arbitral Tribunal; and
    • award is inconsistent or contains contradictory decisions.

    Apart from these statutory grounds, the Argentine Supreme Court has held that an award may also be annulled if it is contrary to public policy or it is illegal, unreasonable or unconstituional (Cartellone v Hidroeléctrica Norpatagónica SA, 2004).

  95. 48.

    Is “lack of reasonableness”, manifest disregard or a mistake in the application of the substantive law to the dispute of an international award grounds to vacate it? 

  96. It is not a statutory ground to vacate an award. However, as I have already mentioned, the Argentine Supreme Court has held an award may also be annulled if it is “unreasonable” (Cartellone v Hidroeléctrica Norpatagónica, 2004). Its application to commercial cases in which non-state parties are involved has been extremely limited.

    In EDF v Endesa (2009), the Commercial Court of Appeal annulled an award based on what it understood to be a deviation from the applicable rules of Argentine law. The Court held that: 

    (i) decisions in arbitration at law must be well founded. This requirement is mandatory, and it must be respected in every adversarial proceeding, as all other procedural guarantees established in the Constitution (articles 17 and 18, National Constitution); and

    (ii) an award rendered in an arbitration at law is not formally acceptable if it does not fulfil those requirements; in other words, if it is arbitrary or it is not reasonably well founded. 

  97. 49.

    Have international awards rendered in your jurisdiction been vacated on the grounds of "public policy"? If so, how has the "public policy" ground for vacating an award been interpreted in your jurisdiction?

  98. The most well-known Argentine Supreme Court’s decision concerning public policy refers to a domestic arbitration in which a state-owned company was a party. As it has already been mentioned, the Court held in Cartellone v Hidroeléctrica Norpatagónica (2004) that an award may also be annulled if is contrary to public policy or it is illegal, unreasonable or unconstitutional. The violation of public policy was based on the mechanical application of an interest rate that led to the award of an unreasonable and disproportionate amount, which in turn entailed a violation of the debtor’s constitutional rights.

    In a more recent case, the Commercial Court of Appeal annulled an award issued in a domestic arbitration that had set off reciprocal claims in violation of mandatory bankruptcy law provisions (Sociedad de Inversiones Inmobiliarias SA . Constructora Iberoamericana, 2011).

  99. 50.

    What is the period of time a party has to challenge such an award after its issuance?

  100. The annulment request must be filed before the arbitral tribunal within five working days from receiving notice of the award. If the request is formally admissible, the arbitral tribunal should send it together with the whole case record to the Court of Appeals (in the case of arbitration in law) or to the First Instance Court (in the case of arbitration in equity). If the arbitral tribunal considers that the request is formally inadmissible, the applicant may file a direct recourse before the Commercial Court of Appeals within five working days. The Court has the power to overrule the arbitral tribunal’s decision and declare the formal admissibility of the annulment request. 

  101. 51.

    Please describe any recent significant experiences or cases that illustrate the attitude of your courts towards the annulment of international awards rendered in your jurisdiction.

  102. Argentine commercial courts do not tend to review the merits of the case in annulment actions (either in domestic or international arbitration). The recent interpretation of the ambiguous article 1656 of the Civil and Commercial Court – which provides that parties may not waive the right to challenge awards contrary to the legal order – confirms that commercial courts do not read this provision as an autonomous ground of challenge that would allow a more stringent review of the merits of the case (Olam Argentina v Cubero, 2015; Amarilla Automotores v BMW Argentina, 2016; Diaz v Techint, 2016).

  103. 52.

    Do the courts consider themselves empowered to vacate an arbitral award rendered in another jurisdiction?

  104. In principle, Argentine courts would not consider themselves empowered to vacate an arbitral award rendered in another jurisdiction. In a recent case, a Federal Administrative Court of Appeals annulled an award issued by a tribunal seated in Montevideo (Uruguay), but the parties had agreed in the arbitration agreement that “the award would be final and binding for the parties, without any possibility of appeals, except for the motions for clarifications or annulment provided for in article 760 of the Code of Civil and Commercial Procedural Code of Argentina (YPF v AES Uruguaiana, 2016).

    Awards enforcement

  105. 53.

    May parties waive all court review of an arbitral award rendered in your jurisdiction (or restrict or expand the scope of that court review)?

  106. No, article 760 of the National Civil and Commercial Procedural Code provides that the waiver of court review does not include the requests for clarification nor the nullity recourse. 

  107. 54.

    Please describe the process for enforcing an arbitral award rendered in another jurisdiction.

  108. If the NY Convention is applicable, the party seeking enforcement shall supply:

    • The duly authenticated original award or a duly certified copy thereof;
    • The original agreement referred to in article II or a duly certified copy thereof.

    If the award or the agreement are not in Spanish, a certified Spanish translation must also be submitted (article IV of the NY Convention).

    The enforcement request should be filed before the first instance court that would have had jurisdiction to hear the case under Argentine domestic procedural rules. The final decision could be appealed to the Court of Appeals. Since enforcement of foreign award is governed by international convention, the final decision from the Court of Appeal could be subject to an extraordinary appeal to the Supreme Court.

  109. 55.

    Assuming that the award is covered by a convention applicable in your jurisdiction, how long does it take to obtain an order of enforcement in the first instance? How long does it take for the enforcement process to run its full course through to the last instance? 

  110. There are no statistics concerning this issue. According to our experience, it would depend to a great extent on the jurisdiction in which the award is being enforced and on the defences opposed by the parties. In federal courts, it could take between six months and a year.

  111. 56.

    Please compare how long it takes to enforce an arbitral award rendered abroad with how long it takes to domesticate a foreign judgment.

  112. There are no statistics concerning this issue; however, time may vary depending on the facts of the case and the defences opposed by the parties.

  113. 57.

    Please describe some significant recent experiences with the enforcement of foreign arbitral awards.

  114. The Argentine Supreme Court has recently stated that domestic courts do not have the power to review the merits at the enforcement stage and emphasised that the court’s analysis should be limited to verifying the existence of the non-recognition grounds set forth in the New York Convention  (Armada Holland v Inter Fruit, 2011).

    On the other hand, the Supreme Court of the Province of Buenos Aires refused to enforce an international award issued against a state-owned company on the ground that the state-owned company lacked the power to agree to arbitrate (Milantic v Astillero Santiago, 2016. See question 58). 

  115. 58.

    To what degree has “public policy” been a ground to refuse enforcement of an international award rendered abroad? 

  116. “Public policy” has rarely been invoked by Argentine courts as a ground for refusing enforcement of an international award. In Ogden Entertainment Services v Ejio (2004) the Commercial Court of Appeals refused to enforce an international award on the ground that the cost of the arbitration and legal fees the claimant had to pay clearly exceeded the principal amount awarded to him (claims based on unpaid commission were accepted only partially and the tribunal granted an award on cost in favour of defendant). According to the Court, the award violated the right of access to justice. The Court did not distinguish between international and domestic public policy. On the contrary, the Court defined the notion of “public policy” in light of the domestic notion of “arbitrariness”, which is one of the grounds for the extraordinary appeal to the Supreme Court.

    The outlook

  117. 59.

    Can a foreign arbitral award be enforced if the award has been set aside by the courts at the seat of the arbitration? 

  118. There are no precedents from Argentine courts interpreting the New York Convention on this issue.

  119. 60.

    Has your jurisdiction refused to honour an international arbitral award issued against the state or an instrumentality of the state in your jurisdiction? If so, please provide a brief explanation.

  120. Yes, the Supreme Court of the Buenos Aires Province refused to recognise a US$3 million award rendered in London in favour of Milantic Trans SA. The dispute arose out of a US$16 million construction contract of two bulk carriers signed in 1996 between Milantic, the buyer, and an Argentinian administrative entity (the ARS), the constructor. It was governed by the UK’s 1996 Arbitration Act. Owing to allegedly irresistible events, ARS suffered delays in the bulk carriers or construction and delivered it after the delivery date agreed upon in the contract. This led to its termination.

    The arbitral tribunal considered that Milantic lawfully terminated the contract. Milantic sought the award's recognition and enforcement in the Province of Buenos Aires. Nonetheless, the Supreme Court considered that the contract’s validity was subject to certain preconditions that had not been complied with. Notably, the required law for the ARS to have legal capacity to enter into the contract and the arbitration agreement had never been passed. Further, the State Prosecutor in charge of representing the Province of Buenos Aires’ interests should have been duly informed and represented the ARS’s interests. The recognition of the award was thus found to be contrary to Argentina's public policy and rejected as per article V.2.b) of the New York Convention – Milantic Trans SA (Milantic v Astillero Santiago, 2016).

  121. 61.

    What is your view of the future of international arbitration and is the trend positive in your jurisdiction? What advice do you have with respect to dispute resolution for a foreign lawyer advising a foreign client contemplating entering into a business deal with a company from your jurisdiction?

  122. Argentine commercial courts, in general, do not interfere with arbitration proceedings between private parties and have consistently refused to review the merits of awards.

    In addition to this, the new chapter on arbitration contained in the Civil and Commercial Code –despite some deficiencies – entailed a significant improvement in the arbitration legislation in Argentina.

    However, the existence of multiple sources of law (Civil and Commercial Code and Civil and Commercial Procedural Codes in each jurisdiction) conspires against the existence of a modern arbitration law. In this sense, the Ministry of Justice is currently working on an international arbitration bill based on the UNCITRAL Model Law that would provide a uniform regulation of international arbitration (for disputes primarily based on private law) limiting thus the scope of the Civil and Commercial Code and all provincial procedural codes to domestic arbitration.

    Finally, Argentine still lacks a regulatory framework for the arbitration of disputes not primarily governed by private law, since the current Civil and Commercial Code does not apply to that type of dispute. It would be desirable to have a predictable legal framework for arbitration with state-owned companies or with the Argentine state.

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Questions

    Legislation

  1. 1.

    Which legislation governs the enforcement of international commercial arbitration awards and arbitral agreements in international business contracts, and international commercial arbitration proceedings?


  2. 2.

    Has the UNCITRAL model arbitration law been adopted in your jurisdiction? 


  3. Conventions

  4. 3.

    Is your jurisdiction a party to both the New York Convention and the Panama Convention? Is it a party to any other conventions or treaties governing international commercial arbitration agreements, awards or proceedings? 


  5. 4.

    Is your jurisdiction a party to the ICSID Convention? Have steps been taken to renounce the Convention or withdraw from ICSID? 


  6. 5.

    Is your jurisdiction a party to other conventions that directly affect the enforceability of arbitration agreements, rights or awards?


  7. Commercial arbitral agreements and arbitrability

  8. 6.

    Some jurisdictions have permitted parties to compel resolution of a dispute by means of arbitration only if the agreement to arbitrate was entered into after a dispute has arisen. Is a pre-dispute arbitration clause to resolve international commercial disputes by arbitration enforceable?


  9. 7.

    What are the requirements for an enforceable arbitral agreement? 


  10. 8.

    Is there subject matter that is not legally subject to arbitration in the context of an international business transaction?


  11. 9.

    Are there any limits to the ability of a state or an instrumentality of the state to enter into an agreement to arbitrate in your jurisdiction? If so, under what circumstances may the state or its instrumentalities enter into such an agreement? Please describe the requirements that must be met for the state to enter into a binding arbitration agreement.


  12. 10.

    Does the law specify whether an arbitration will be in equity or under law if the parties do not expressly specify the nature of the arbitration in the agreement?


  13. 11.

    How does the law limit party autonomy with respect to the terms of an arbitral agreement? 


  14. 12.

    Under what circumstances does the law allow a non-signatory to an arbitral agreement to pursue a claim in an international arbitration against a party that signed the arbitral agreement?


  15. 13.

    Under what circumstances does the law allow a signatory to an arbitral agreement to pursue a claim in an international arbitration against a party that did not sign the arbitral agreement?


  16. 14.

    Under what circumstances may a non-signatory to an arbitral agreement compel arbitration of a claim asserted against it in a court of law by a signatory of the arbitral agreement?


  17. 15.

    Is there any law in your jurisdiction specifically governing the arbitrability of consumer or labour disputes?


  18. 16.

    Does your jurisdiction provide for class-action arbitration or group arbitration? If so, are there any limitations to the arbitrability of such claims or requirements that must be met before such claims may be arbitrated? 


  19. 17.

    Are contractual waivers precluding arbitration of claims on a class-wide basis enforceable? Under what circumstances have such waivers been upheld or set aside by the courts?


  20. 18.

    If the parties’ contract is silent on the issue of class-action arbitration, is class-action arbitration allowed under the law of your jurisdiction?


  21. 19.

    Are foreign arbitral institutions without a physical presence in your jurisdiction authorised to administer arbitrations in your jurisdiction? Does the law require that a foreign institution be licensed under local law in order to administer an arbitration seated there?


  22. Arbitral institutions and arbitrators

  23. 20.

    Is an arbitral award issued in an arbitration seated in your jurisdiction under the auspices of a foreign institution (such as the ICC, ICDR, LCIA or similar institutions) vulnerable to challenge because it was issued under the auspices of a foreign institution?


  24. 21.

    Does the law require that arbitrators in international arbitrations be citizens or residents of your jurisdiction?


  25. 22.

    Does your law require that arbitrators in international cases be lawyers? 


  26. 23.

    Does your jurisdiction provide immunity to arbitrators serving in an arbitration with its legal seat in your jurisdiction? Under what circumstances does such immunity apply or not apply? 


  27. 24.

    Are the fees of foreign arbitrators serving in an arbitration seated in your jurisdiction subject to taxation?


  28. 25.

    Must arbitrators in international arbitrations be independent and impartial? What is the legal standard governing conflicts of interest and disclosure by arbitrators in international arbitrations?


  29. 26.

    Will courts entertain requests to disqualify an arbitrator before the conclusion of an award? 


  30. Arbitral proceedings

  31. 27.

    Does the law require that arbitral proceedings seated in your jurisdiction be held in a specific language? 


  32. 28.

    Can foreign lawyers serve as advocates in arbitral proceedings in your jurisdiction? If so, can they do so alone or must a local lawyer serve as co-counsel? 


  33. 29.

    Are the fees of foreign lawyers earned for services rendered in connection with an arbitration seated in your jurisdiction subject to local taxation?


  34. 30.

    In what circumstances, if any, does your law allow the consolidation of multiple arbitral proceedings into a single proceeding?


  35. 31.

    Please describe common practice and usage in international arbitrations seated in your jurisdiction with respect to a party’s right to require an opposing party to produce documents pertinent to the dispute. 


  36. 32.

    Does the law impose a duty of confidentiality in arbitration? If so, on whom? 


  37. 33.

    Does the law authorise third-party funding for international arbitration? Are there any ethical limitations imposed upon counsel to the parties that restricts the use of such funding?


  38. 34.

    Are there any mandatory national rules of professional ethics that apply to counsel in an international arbitration in your jurisdiction? If so, are those rules applicable to counsel from another jurisdiction participating in an arbitration in your jurisdiction? 


  39. 35.

    Are there any mandatory rules on oath or affirmation for witnesses testifying in an arbitration in your jurisdiction that have to be administered prior to their testimony? If so, what are they? 


  40. 36.

    Are there restrictions in your jurisdiction on the interviewing of witnesses in anticipation of hearings or giving of testimony?


  41. Court support for arbitration

  42. 37.

    Can arbitrators decide on their own jurisdiction? Is the principle of ‘Kompentenz-Kompetenz’ followed in the courts?


  43. 38.

    Do the courts follow the principle of the independence and separability of the arbitration clause? 


  44. 39.

    Are arbitral tribunals empowered to grant interim relief? If so, how is that relief enforced in the courts? 


  45. 40.

    Can arbitrators issue orders, subpoenas or use other legal processes to compel the production of evidence by a third party or compel a third-party witness to appear before them? If so, will a court lend its aid in enforcing such an order against a recalcitrant third party? Also, if arbitrators can issue orders, subpoenas or use other legal processes to compel the production of evidence by a third party or compel a third-party witness to appear before them, are there any limitations to their doing so? 


  46. 41.

    Can a party to an arbitration seek relief from the court to obtain evidence in aid of an international arbitration? What is the scope of such relief?


  47. 42.

    Can a party in an international commercial arbitration seek interim or provisional relief from a court without first seeking relief from the arbitral tribunal?


  48. 43.

    Have the courts issued injunctions enjoining arbitral proceedings from going forward? 


  49. 44.

    Does the law provide that post-award interest accrues on an unpaid arbitral award? 


  50. 45.

    Is an arbitral tribunal empowered to award attorneys’ fees to the prevailing party or is that power reserved to the courts?


  51. 46.

    Is an arbitral tribunal empowered to award punitive or exemplary damages? Is the arbitral tribunal empowered to award interest? 


  52. Awards - content

  53. 47.

    What are the grounds for challenging or vacating an international award issued in an arbitration seated in your jurisdiction? 


  54. 48.

    Is “lack of reasonableness”, manifest disregard or a mistake in the application of the substantive law to the dispute of an international award grounds to vacate it? 


  55. 49.

    Have international awards rendered in your jurisdiction been vacated on the grounds of "public policy"? If so, how has the "public policy" ground for vacating an award been interpreted in your jurisdiction?


  56. 50.

    What is the period of time a party has to challenge such an award after its issuance?


  57. 51.

    Please describe any recent significant experiences or cases that illustrate the attitude of your courts towards the annulment of international awards rendered in your jurisdiction.


  58. 52.

    Do the courts consider themselves empowered to vacate an arbitral award rendered in another jurisdiction?


  59. Awards enforcement

  60. 53.

    May parties waive all court review of an arbitral award rendered in your jurisdiction (or restrict or expand the scope of that court review)?


  61. 54.

    Please describe the process for enforcing an arbitral award rendered in another jurisdiction.


  62. 55.

    Assuming that the award is covered by a convention applicable in your jurisdiction, how long does it take to obtain an order of enforcement in the first instance? How long does it take for the enforcement process to run its full course through to the last instance? 


  63. 56.

    Please compare how long it takes to enforce an arbitral award rendered abroad with how long it takes to domesticate a foreign judgment.


  64. 57.

    Please describe some significant recent experiences with the enforcement of foreign arbitral awards.


  65. 58.

    To what degree has “public policy” been a ground to refuse enforcement of an international award rendered abroad? 


  66. The outlook

  67. 59.

    Can a foreign arbitral award be enforced if the award has been set aside by the courts at the seat of the arbitration? 


  68. 60.

    Has your jurisdiction refused to honour an international arbitral award issued against the state or an instrumentality of the state in your jurisdiction? If so, please provide a brief explanation.


  69. 61.

    What is your view of the future of international arbitration and is the trend positive in your jurisdiction? What advice do you have with respect to dispute resolution for a foreign lawyer advising a foreign client contemplating entering into a business deal with a company from your jurisdiction?


Other chapters in Arbitration