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Argentina

Last Verified on Tuesday 16th April 2019

    Legislation

    • Argentina

      Argentine arbitration law distinguishes between international and domestic arbitration.

      International commercial arbitration is exclusively governed by Law 27,449 enacted by National Congress in July 2018 and applicable nationwide. It is substantially based on UNCITRAL Model Law.

      Domestic arbitration is governed by two different regulations: (i) a chapter on the Arbitration Agreement contained in the National Civil and Commercial Code enacted by the National Congress and applicable nationwide; (ii) regulations of the procedural aspects of the arbitration contained in the Civil and Commercial procedural Codes (enacted by each province) and in the National Civil and Commercial Procedural Code respectively applicable in each province and in the federal jurisdiction. These procedural codes provide for the recourses available after an award has been rendered (such as annulment and clarification requests) and the terms, grounds and conditions for their filing.

      Neither Law 27,449 nor the Civil and Commercial Code govern arbitration concerning contractual or non-contractual relationships not predominantly governed by private law.

      The recognition and enforcement of foreign arbitral awards is primarily 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 articles 102 to 106 of Law 27,449.

      Last verified on Tuesday 16th April 2019

  • Conventions

    • Argentina

      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 Judgments 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 the MERCOSUR International Commercial Arbitration Agreement of 1998.

      Last verified on Tuesday 16th April 2019

    • Argentina

      Yes, Argentina is a party to the ICSID Convention since 18 November 1994. It was approved by Law 24,353. No steps have been taken to renounce the Convention or withdraw from ICSID. What is more, the latest bilateral investment agreements signed by Argentina in 2018 (Argentina-Japan BIT and Argentina-UAE BIT) provide for ICSID arbitration as an alternative for dispute settlement.

      Last verified on Tuesday 16th April 2019

  • Commercial arbitral agreements and arbitrability

    • Argentina

      In international commercial arbitration, pre-dispute arbitration clauses are enforceable. Article 14 of Law 27,449 provides, based on article 7 of the UNCITRAL Model Law, that an “arbitration agreement” is an agreement by the parties to submit to arbitration all or certain disputes that have arisen or that may arise between them in respect of a defined legal relationship, whether contractual or not. An arbitration agreement may be in the form of an arbitration clause in a contract or in the form of a separate agreement.

      Similarly, in domestic arbitration, article 1649 of the National Civil and Commercial Code establishes that there is an arbitration agreement when the parties decide to submit to arbitration all or some of the disputes that have arisen or could arise between them with respect to a specific legal relationship (contractual or non-contractual) of private law.

      However, the National Civil and Commercial Procedural Code – applicable to domestic arbitration – 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 National Civil and Commercial Code.

      Last verified on Tuesday 16th April 2019

    • Argentina

      In international commercial arbitration, articles 14 to 18 of Law 27,449 reproduce Option I of article 7 of the UNCITRAL model arbitration law, with a minor variation. In this regard, article 15 of Law 27,449 provides that “an agreement is deemed to be in writing if its content is recorded in any form”. However, unlike the Model Law, article 15 does not expressly state that the arbitration agreement may be concluded “orally, by conduct or by other means.”

      In domestic arbitration, article 1650 of the National 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 National Civil and Commercial Code establishes that disputes related to adhesion contracts may not be subject to arbitration. This is, indeed, a formal requirement of the arbitration agreement hidden as a non-arbitrability provision. 

      Additionally, article 1651 of the National Civil and Commercial Code 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.

      Last verified on Tuesday 16th April 2019

    • Argentina

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

      Article 5 of Law 27,449 states that this law will not affect any other rule of Argentine law under which a specific dispute may not be settled by arbitration or may only be settled pursuant to specific provisions. So, the types of disputes that may be subject to arbitration are determined by the National Civil and Commercial Procedural Code and the National Civil and Commercial Code.

      The general principle is that matters that cannot be subject to compromise or settlement cannot be submitted to arbitration (article 737, National Civil and Commercial Procedural Code) (ie, a criminal matter arising from an unlawful act).

      Article 1651 of the National Civil and Commercial Code adds that disputes related to the civil status of capacity of a person, with family matters, adhesion contracts (see also reply to question 7), consumer disputes and labour disputes may not be subject to arbitration. The parties may also not agree to arbitrate disputes that compromise the public order (article 1649).

      Argentine courts have, however, minimised the practical impact of these provisions. On one hand, they have held that arbitral clauses contained in adhesion contracts are allowed unless an asymmetrical power relationship between the parties to the contract is proven (Servicios Santamaria v Energia de Argentina). On the other hand, Argentine courts have also considered that a dispute governed by public policy rules can be submitted to arbitration if it only concerns the parties’ monetary rights (Francisco Ctibor v Wall-Mart Argentina).

      Last verified on Tuesday 16th April 2019

    • Argentina

      In matters of international commercial arbitration, article 81 of Law 27,449 establishes that in the absence of express agreement between the parties the arbitration shall be under law.

      In domestic arbitration the National 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 Procedural Code that sets forth the opposite default rule. 

      Last verified on Tuesday 16th April 2019

    • Argentina

      In domestic arbitration the National 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 or interim 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 1658);
        • 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.

      In domestic arbitration the parties may not waive the annulment recourse nor the request for clarification (article 760 of the National Civil and Commercial Procedural Code).

      In international arbitration, Law 27,449 stablishes similar provisions:

      • the parties may exclude the arbitrators’ power to issue preliminary or interim measures (articles 21 and 38–61);
      • the parties may choose an arbitral institution to administer the arbitration (article 7) 
      • the parties may choose the seat, language and procedure, (respectively articles 65–66 (seat), 68–69 (language) and 63&64 (procedure));
      • however, Law 27,449, does not contain specific provisions regarding the term to render an award, confidentiality of the proceedings and the distribution of costs;  
      • the parties may decide on the number of arbitrators and procedure for their appointment (article 22);
      • the issue of arbitrators' nationality is provided for (article 23) and profession or experience of the arbitrators are not regulated;  
      • the parties may freely agree on the procedure for recusing the arbitrators (article 29); and
      • the parties may not grant a privilege to one of them with regard to the appointment of arbitrators (article 24).

      Last verified on Tuesday 16th April 2019

    • Argentina

      Although there are no specific 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. 

      Last verified on Tuesday 16th April 2019

    • Argentina

      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 (Acerra v BAPRO, 2018). 

      Additionally, since consent to the arbitration agreement may also be proved by any conduct that shows its acceptance, 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). This possibility has been confirmed, although in obiter dictum, by a judgment of the Commercial Court of Appeals (Acerra v BAPRO, 2018). Moreover, in its decision, the Court held that the arbitration agreement might be extended exceptionally if one of the following doctrines apply: agency, guarantor, direct benefit, assignment of the principal contract or debt, the succession of legal persons, the merge of legal persons and estoppel.

      Last verified on Tuesday 16th April 2019

    • Argentina

      Article 1651 of the National 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 clauses inserted in consumer contracts are not valid.         

      As it has already been explained, there is no distinction between international and domestic arbitration regarding the matters that cannot be subject to arbitration. So, article 1651 of the National Civil and Commercial Code applies both to international and domestic arbitrations.

      Last verified on Tuesday 16th April 2019

    • Argentina

      No, Argentine law does not have any specific provision on class arbitration. However, 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).

      Last verified on Tuesday 16th April 2019

    • Argentina

      Article 1657 of the National Civil and Commercial Code expressly provides that arbitration may be administered by local or foreign arbitral institutions. Although the Code is only applicable to domestic arbitrations, there is no reason for not applying the same rule in international arbitrations.

      They do not need to be licensed under local law. 

      Last verified on Tuesday 16th April 2019

  • Arbitral institutions and arbitrators

    • Argentina

      No, article 23 of Law 27,449 provides that, unless otherwise agreed by the parties, the nationality of a person will not be an obstacle for that person to act as arbitrator.

      In domestic arbitration, article 1660 of the National Civil and Commercial Code provides that any person with legal capacity may be an arbitrator. 

      In practice, it is very common to encounter foreign arbitrators in both domestic and international arbitrations seated in Argentina.

      Last verified on Tuesday 16th April 2019

    • Argentina

      No, article 23 of Law 27,449 mentions “person”, and not “lawyers”, regarding the appointment of an arbitrator.

      A similar rule applies in domestic arbitration. Article 1660 of the National Civil and Commercial Code provides that any person with legal capacity may be an arbitrator.

      Last verified on Tuesday 16th April 2019

    • Argentina

      No, Argentine law does not have any specific provision concerning arbitrators’ immunities neither in Law 27,449 nor in the National Civil and Commercial Code.

      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 causes damages to the parties.

      Last verified on Tuesday 16th April 2019

    • Argentina

      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 have taken place in Argentina irrespective of whether the activity was in fact performed in the territory.

      Last verified on Tuesday 16th April 2019

    • Argentina

      Yes, arbitrators must be, and remain, independent and impartial. According to article 28 of Law 27,449, an arbitrator can only be challenged if there are circumstances that give rise to justified doubts regarding his impartiality or independence, or if he or she does not possess the qualifications agreed by the parties. Article 28 departs from the UNCITRAL Model Law by adding that certain circumstances shall be considered as giving rise to lack of impartiality or independence, without any evidence to the contrary being admitted: (i) if an arbitrator or a member of his or her firm acts as counsel to one of the parties, irrespective of the nature or type of dispute or (ii) if they act as counsel to a third party in a dispute with the same cause of action or with the same object.

      Article 27 of Law 27,449 sets forth the arbitrators’ ongoing duty to disclose any circumstance that may affect their independence or impartiality.

      Last verified on Tuesday 16th April 2019

    • Argentina

      In international commercial arbitration, the procedure for challenging arbitrators is governed by articles 29 to 31 of Law 27,449, which reproduce article 13 of the UNCITRAL Model Law. The parties are free to agree on a procedure for challenging an arbitrator (article 29). Failing such agreement, the arbitral tribunal shall decide on the challenge (article 30). If a challenge under any procedure agreed upon by the parties or under the procedure of article 30 is not successful, the challenging party may request the court to decide on the challenge. No recourse can be filed against its decision. While such a request is pending, the arbitral tribunal, including the challenged arbitrator, may continue the arbitral proceedings and render an award (article 31).

      In domestic arbitration, the solution is different. The National Civil and Commercial Code distinguishes between institutional and domestic arbitration.

      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 National 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 National 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.

      Last verified on Tuesday 16th April 2019

  • Arbitral proceedings

    • Argentina

      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.

      Last verified on Tuesday 16th April 2019

    • Argentina

      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.  

      Last verified on Tuesday 16th April 2019

    • Argentina

      There is no specific article regarding confidentiality in Law 27,449 applicable to international commercial arbitration.

      In domestic arbitration, the National Civil and Commercial Code provides that 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 National Civil and Commercial Code arbitrators have a duty to respect the confidentiality of the arbitration proceedings.

      Last verified on Tuesday 16th April 2019

  • Court support for arbitration

    • Argentina

      Yes. In international commercial arbitration, articles 35 to 37 of Law 27,449 are modelled after article 16 of the UNCITRAL Model Law. Article 35 provides that the arbitral tribunal may rule on its own jurisdiction, including any objections with respect to the existence or validity of the arbitration agreement. Article 19 of Law 27,449 also acknowledges the negative effect of the Kompentenz-Kompetenz principle. It states that a court before which an action is brought in a matter that is the subject of an arbitration agreement shall refer the parties to arbitration unless it finds that the agreement is null and void, inoperative or unable to be fulfilled.

      In domestic arbitration article 1654 of the National 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 of the National Civil and Commercial Code 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. 

      Argentine courts interpreting article 1654 of the National Civil and Commercial Code have consistently recognised the validity of the negative effect of the Kompetenz-Kompetenz principle in Argentine law.

      Last verified on Tuesday 16th April 2019

    • Argentina

      Article 35 of Law 27,449 – applicable to international commercial arbitration – establishes that:

      The arbitral tribunal may rule on its own jurisdiction, including any objections with respect to the existence or validity of the arbitration agreement. For that purpose, an arbitration clause that forms part of a contract shall be treated as an agreement independent of the other terms of the contract. A decision by the arbitral tribunal that the contract is null and void shall not entail ipso jure the invalidity of the arbitration clause.

      Article 1653 of the National Civil and Commercial Code – applicable to domestic arbitration – provides that the arbitration agreement is independent from the main contract to which it is related. Article 1653 also states that the validity of the arbitration agreement is not affected even 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 National 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). 

      Last verified on Tuesday 16th April 2019

    • Argentina

      In international commercial arbitration, article 38 of Law 27,449 states that the arbitral tribunal may, at the request of a party, grant interim measures, unless otherwise agreed by the parties. Article 39 of Law 27,449 sets forth the conditions for granting an interim measure: (i) harm not adequately reparable by an award of damages is likely to result if the measure is not ordered, and such harm substantially outweighs the harm that is likely to result to the party against whom the measure is directed if the measure is granted; and (ii) there is a reasonable possibility that the requesting party will succeed on the merits of the claim.

      The recognition and enforcement of interim measures are governed by articles 56 to 60 of Law 27,449, modelled after articles 17(h) and 17(l) of the Model Law. An interim measure issued by an arbitral tribunal shall be recognised as binding and, unless otherwise provided by the arbitral tribunal, enforced upon application to the competent court, irrespective of the country in which it was issued (article 56).

      According to article 59, the recognition or enforcement of an interim measure may be refused only:

      • at the request of the party against whom it is invoked if the court is satisfied that:
      • such refusal is warranted on the grounds set forth in article 104(a)(i), (ii), (iii) and (iv) or;
      • the arbitral tribunal’s decision with respect to the provision of security in connection with the interim measure issued by the arbitral tribunal has not been complied with; or
      • The interim measure has been terminated or suspended by the arbitral tribunal or, where so empowered, by the court of the state in which the arbitration takes place or under the law of which that interim measure was granted; or
      • if the court finds that:
      • (i) the interim measure is incompatible with the powers conferred upon the court unless the court decides to reformulate the interim measure to the extent necessary to adapt it to its own powers and procedures for the purposes of enforcing that interim measure and without modifying its substance; or
      • (ii) any of the grounds set forth in article 104(b)(i) and (ii) apply to the recognition and enforcement of the interim measure.

      In domestic arbitration, 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.

      Last verified on Tuesday 16th April 2019

    • Argentina

      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.  

      There is also no provision in this regard in Law 27,449. However, according to article 78 of Law 27.449, the arbitral tribunal or any of the parties with the approval of the arbitral tribunal may request the assistance of a competent court for the practice of evidence.

      Last verified on Tuesday 16th April 2019

    • Argentina

      Yes. In international commercial arbitration, article 78 of Law 27,449 states that: “The arbitral tribunal or a party with the approval of the arbitral tribunal may request from a competent court of this State assistance in taking evidence. The court may execute the request within its competence and according to its rules on taking evidence.”

      Similarly, in domestic arbitration, article 753 of the National Civil and Commercial Procedural Code provides that arbitrators may 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). 

      Last verified on Tuesday 16th April 2019

    • Argentina

      In international commercial arbitration, article 61 of Law 27,499 provides that a “court shall have the same power of issuing an interim measure in relation to arbitration proceedings, irrespective of whether their place is in the territory of this state, as it has in relation to proceedings in courts”. Previous to the enactment of Law 27,449, the Commercial Court of Appeals arrived at the same conclusion by virtue of article 2603 of the National Civil and Commercial Code (Industrias Rotor Pump v Franklin Electric, 2017).

      With respect to domestic arbitration, article 1655 of the National Civil and Commercial Code authorises courts to adopt interim measures in connection with arbitrations. A party’s request does not entail a violation of the arbitral agreement nor a waiver of the arbitrators’ jurisdiction. 

      Last verified on Tuesday 16th April 2019

    • Argentina

      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.

      Last verified on Tuesday 16th April 2019

    • Argentina

      Under Argentine substantive 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. 

      Last verified on Tuesday 16th April 2019

  • Awards - content

    • Argentina

      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). 

      Last verified on Tuesday 16th April 2019

    • Argentina

      In international commercial arbitration, articles 104 and 105 of Law 27,449, which are based on article 36 of the UNCITRAL Model Law, set forth the grounds on which an award can be annulled.

      In domestic arbitration, according to articles 760 and 761 of the National Civil and Commercial Procedural Code, an award may be annulled on the following grounds: (i) 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; (ii) award rendered after the term for making the award has elapsed and (iii)  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 unconstitutional (Cartellone v Hidroeléctrica Norpatagónica SA, 2004).

      Last verified on Tuesday 16th April 2019

    • Argentina

      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. 

      Last verified on Tuesday 16th April 2019

    • Argentina

      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).

      Last verified on Tuesday 16th April 2019

    • Argentina

      In international commercial arbitration, the annulment request must be made within 30 days from the date on which the party making that application had received the award or, if a request had been made under articles 93-97 (petition to correct or interpret the award), from the date on which that request had been disposed of by the arbitral tribunal.

      In domestic arbitration, the annulment request must be filed before the arbitral tribunal within five working days of 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. 

      Last verified on Tuesday 16th April 2019

    • Argentina

      Argentine commercial courts do not tend to review the merits of the case in annulment actions (either in domestic or international arbitration). The Argentine Supreme Court has also held in very recent cases that Courts must not review the merits of the award within the context of annulment actions (see, eg, López v Gemabiotech SA, 2017).

      Last verified on Tuesday 16th April 2019

  • Awards enforcement

    • Argentina

      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).

      Last verified on Tuesday 16th April 2019

    • Argentina

      In international commercial arbitration, Law 27,449 does not have any specific provision concerning this question. There are different approaches in Model Law jurisdictions as to whether it is valid to waive all court review of arbitral awards. Argentine courts have not yet issued any decision in this regard.

      In domestic arbitration, 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. 

      Last verified on Tuesday 16th April 2019

    • Argentina

      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.

      Last verified on Tuesday 16th April 2019

    • Argentina

      There are no statistics concerning this issue. In 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.

      Last verified on Tuesday 16th April 2019

    • Argentina

      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). 

      Last verified on Tuesday 16th April 2019

  • The outlook

    • Argentina

      “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.

      Last verified on Tuesday 16th April 2019

    • Argentina

      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).

      Last verified on Tuesday 16th April 2019

    • Argentina

      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 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.

      Last verified on Tuesday 16th April 2019

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