International Commercial Arbitration in Argentina

Introduction

Argentina is a dynamic and evolving jurisdiction for international commercial arbitration. The progress made from a legal, judicial and practical perspective in the past five years has particularly magnified these characteristics and confirmed the country’s potential as one of the most prominent arbitral seats in Latin America.

Until just a few years ago, Argentina lacked a comprehensive set of rules addressing domestic or international arbitration.[2] Historically, arbitration in Argentina has been considered a procedural matter, whose regulation under the Argentine Constitution lies with the provinces. Local codes of procedure included provisions that only addressed some aspects of arbitration, universally described as archaic and obsolete.[3]

This situation remained unchanged for almost 150 years until, in 2015, arbitration in Argentina took a Copernican turn. In August that year, a new Civil and Commercial Code (the New Code) came into force, which replaced and unified the existing Civil and Commercial Codes that had been in force for over a century. Among its numerous innovations, the New Code included a chapter regulating arbitration agreements.[4] Three years later, the Argentine Congress enacted the International Commercial Arbitration Law (ICAL).[5] With the enactment of the New Code and the ICAL, Argentina adopted a dualist system for arbitration and joined the group of countries offering modern and tested arbitration legal frameworks. These milestones have set the tone of the developments discussed in this chapter, and constitute a significant advance for the country in the direction of legal certainty and internationality. As stems from the parliamentary documents leading to the ICAL, such law was meant to provide the country with an adequate legal framework to favour its election as a seat of international commercial arbitrations, and embrace the modern notions of arbitration in harmony with regulations all over the world.[6]

In this chapter, we introduce the legal framework in force in Argentina applicable to international and domestic commercial arbitrations, explaining the different levels of relevant regulation; then provide a brief reference to arbitration involving the Argentine state; comment on aspects of arbitration in Argentina that could be of particular interest for international practitioners, due to certain Argentine specificities, including a number of adaptations to the UNCITRAL Model Law on International Commercial Arbitration (the Model Law); and offer a brief conclusion and closing remarks.

Legal arbitration framework in Argentina

Constitutional layout of arbitration law in Argentina

Argentina is a federal republic, organised under a federal constitution. The federal state coexists with 24 local jurisdictions, of which 23 are provinces, the 24th being the City of Buenos Aires, with an autonomous status.[7] The federal state has exclusive power to enact federal regulation on substantive matters (such as interprovincial trade and codes concerning civil and commercial matters, among other things), which are applicable throughout the country, while each provincial state may enact or issue its own laws or regulations on procedural matters.[8]

The relevance of this distinction is linked to the different levels of arbitration law found in international, national and provincial law, both substantive and procedural. These are summarised below.

Treaty arbitration law is considered to be part of Argentine law,[9] and to hold a higher hierarchy than federal law,[10] which in turn has a higher hierarchy to that of provincial law.[11] Argentina is a party to multiple regional and global treaties governing arbitration matters, including the Inter-American Convention on International Commercial arbitration (the Panama Convention) and the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention).[12]

Federal and national substantive arbitration law is issued by the National Congress to be applied in the whole republic. In the case of the New Code, arbitration provisions were included in a chapter named ‘The arbitration contract’. This legislative choice pondered the contractual nature of arbitration as an expression of private autonomy in civil and commercial matters.[13] The ICAL can be considered as part of the Congress’ powers to legislate on commerce with foreign nations.[14] However, both the New Code and the ICAL contain provisions of a procedural nature. The regulation of procedural aspects by the National Congress is considered constitutional when that mechanism is necessary to guarantee the exercise of rights derived from substantive law.[15] Finally, there are other specific federal regulations that contemplate arbitration as a mechanism for resolving conflicts.[16]

Federal procedural law is contained in the National Code of Civil Procedure (the Procedural Code), and must be applied in the context of judicial proceedings in the city of Buenos Aires and in federal courts through the country. It does not actually regulate the arbitration proceeding where parties have their disputes adjudicated. Procedural arbitration law instead concerns the action to constitute arbitral tribunals, and it organises the recourses and actions against the award and its enforcement in the domestic arena.[17] The interaction between the ICAL and federal procedural law is observed in ICAL’s Article 107, which repeals the Procedural Code’s Article 519 bis, which used to regulate the enforcement of awards rendered by ‘foreign arbitral tribunals’.[18]

Provincial procedural law is potentially applicable when arbitration proceedings are seated in the different provinces, when the case does not involve federal aspects.

Summary of Argentine international and domestic commercial arbitration law

As introduced, since the enactment of the New Code and the ICAL, Argentina has modernised its arbitration legislation. From a monist country based on an antiquated system, the country has moved to a dualist approach towards arbitration, in which international and domestic arbitrations are regulated by different laws.[19]

On the one hand, international arbitrations that can be characterised as ‘commercial’ and ‘international’ are governed by the ICAL exclusively.[20] The ICAL is substantially based on the Model Law as amended in 2006[21] with some adaptations aiming to make the text coherent with the rest of the Argentine legal system.[22]

The ICAL adopts the main principles in modern comparative legislation that regulate international arbitration. Throughout its 109 articles, the law regulates, among other aspects:

  • the arbitration agreement;
  • its form and autonomy;
  • the constitution and competence of the arbitral tribunal;
  • the issuance of precautionary measures and preliminary orders;
  • the arbitration procedure;
  • interaction with judicial courts in evidentiary issues;
  • the rendering of the arbitral award;
  • requests for correction and interpretation of the award;
  • termination of the proceedings;
  • recourses against the arbitral award; and
  • provisions applicable to its recognition and enforcement.[23]

The main differences between the ICAL and the Model Law concern the ICAL’s scope of application. First, unlike in the Model Law, the ICAL provides that parties cannot agree that ‘the subject matter of the arbitration agreement relates to more than one country’.[24] However, as it occurs with the Model Law, internationality under the ICAL is indicated when the parties have different places of business; and the place of arbitration, the place of performance of a substantial part of the obligations or the place with which the arbitration is most closely connected, are in different locations to that of the seat of the arbitration.[25] Moreover, the ICAL will be applicable only when the seat of an international arbitration is in Argentina, except for the case of, among others, enforcement of interim measures, where the ICAL would be applied when an interim measure was rendered by an arbitral tribunal seated outside Argentina.[26] Thus, the international character of a matter is defined in the ICAL in connection with the parties’ domiciles, and the place of performance of a substantial part of the obligations in question, or the place with the closest connection to the litigation (Article 3).

This gave rise to different opinions in terms of whether parties can ‘internationalise’ arbitration by way of choosing a seat outside Argentina, when the dispute has no connection with a foreign nation. Commercial Judge Uzal considers that in an ‘absolutely Argentine’ case in terms of objective and subjective circumstances, parties could not agree on a foreign seat, since Article 2605 of the New Code, referred to by Article 107 of the ICAL, allows the choice of foreign tribunals only when the subject matter is an international one.[27]

The rule of Section 2605 of the New Code was already contained in Section 1 of the Procedural Code, based on which internationality was explained as the connection to multiple juridical national systems able to cause an international jurisdiction conflict based on objective circumstances.[28] This would lead to a conclusion that an arbitration would only be considered international by way of its seat under the ICAL, when the seat is in Argentina, but the parties are domiciled abroad, in different states, or when any other criteria for internationality contained in the ICAL is met. Jurisprudence is not developed in this sense yet. However, the issue remains arguable and should be analysed on a case-by-case basis. In fact, former Supreme Court Judge Boggiano considers that the award would be most likely rendered (since an arbitral tribunal seated abroad would not apply Article 2605 of the New Code) and enforced in Argentina, unless a more serious ground for annulment were present.[29]

Arbitrator Caivano[30] accepts that the Argentine legislator has preferred to maintain an objective criterion to determine an arbitration’s internationality, and grants that an award rendered by an arbitral seated outside Argentina in a purely ‘Argentine’ case would hardly be enforced in the country. Uzal agrees with this interpretation, and considers that a local court should refuse enforcement considering that the matter is not arbitrable.[31] However, the judge proposes that neither these circumstances nor the suppression of Article 1.3(c) of the Model Law in the ICAL prevents parties from choosing a foreign seat, since the validity of the award will not be determined by Argentine law, but by the law of the seat.

Second, the ICAL adds that ‘commercial’ comprehends any juridical relationship, whether it be contractual or not, of private law or mostly governed by private Argentine law. In case of doubt, an ample interpretation in favour of ‘commerciality’ shall proceed.[32]

On the other hand, commercial domestic proceedings are governed by the New Code. Its regulation must be considered together with the Procedural Code,[33] and other applicable procedural codes, which are still in force. The ‘Arbitration Contract’ chapter in the New Code was inspired by international sources such as the Model Law, the Civil Code of Quebec and French law of 2011.[34] Thus, it recognised several universally accepted standards, such as the principle of competence-competence and the separability of the arbitration clause. However, this new corpus also included other questionable provisions, such as those related to the scope of judicial review of awards.[35] As we will explain, Argentine courts have so far construed such provisions in an arbitration-friendly fashion by, for example, limiting the grounds for review of arbitral awards.[36]

Since this chapter focuses on Argentina as the seat of international arbitration, we will not enter into a detailed analysis of the legal framework applicable to domestic arbitration.

Regime applicable to arbitration involving the Argentine state

Disputes involving states or state-owned entities is a remarkable development in recent international commercial arbitration.[37] According to the latest statistical report of the International Chamber of Commerce, in 2020, almost 20 per cent of the cases involved a state or state entity.[38] In this context, certainty regarding rules applicable to state commercial arbitrations is significant for the development of any arbitration legal framework.

Public policy and public affairs were subject to great discussion in the parliamentary debates leading to the enactment of the New Code. This resulted in two provisions: (1) that only matters of private law and in which public policy is not compromised can be subject to arbitration;[39] and (2) the inapplicability of provisions concerning the arbitration contract in the New Code to disputes in which federal or provincial states are a party.[40] Such limitations answer to the concern of legislators regarding the arbitration of disputes involving administrative matters, as well as public policy matters on which the parties cannot freely agree.[41]

Further development on the first point continues in ‘Arbitration Agreements’.

As for the second provision, an arbitration agreement validly entered into by the state could potentially be sustained. The main difference between arbitration involving private persons and arbitration involving the state lies in how the consent is formed for each to resort to arbitration. Briefly, the National Constitution establishes the competence of the Argentine Supreme Court and lower federal courts to hear cases in which the federal state is a party and concern federal law affairs.[42] However, the Argentine Supreme Court has consistently held that ‘there is no constitutional obstacle for the national government to subject its controversies with private persons to arbitration, as long as a law so allows’. Thus, any exception to Article 116 must be allowed by law.[43]

In turn, such law could provide for additional formal requirements, which is not normally the case. Even if not required legally, however, the existence of an opinion by the Treasury Attorney General favourable to the validity and applicability of the arbitration clause in question might be advisable for greater legal certainty.

Considering that only relationships governed by private law are considered ‘commercial’ under the ICAL (see ‘Summary of Argentine international and domestic commercial arbitration law’), such law would, in principle, be inapplicable to relations preponderantly governed by public law. Nonetheless, when dealing with the involvement of the Argentine state in arbitration, the possibility of unclear boundaries between public and private law may give rise to different interpretations.[44]

Specific legislation has provided for arbitration in relation to various kinds of contracts involving Argentina’s federal government, most recently in the area of private–public partnership projects.

Main topics of current law and practice in Argentina

Arbitration agreements

The ICAL adopted option I of the Model Law for the definition of arbitration agreements. A slight modification in terms of form was introduced, by way of eliminating the final part of Article 7.3 (whether or not the arbitration agreement or contract has been concluded orally, by conduct, or by other means).

The ICAL’s favourable position towards arbitration with regard to arbitration agreements can be found in its Article 106. According to such provision, Paragraph 2 of Article II of the New York Convention must be interpreted and applied taking into account that the circumstances set forth there are not exhaustive, following UNCITRAL’s recommendation.[45]

On the other hand, limitations to matters on which parties can agree to arbitrate require an interpretative effort from doctrine and case law. Arbitrability remains governed by provisions of the New Code,[46] namely Article 1649, already referred to in ‘Regime applicable to arbitration involving the Argentine state’. As seen there, the approved legislative text provides a definition of ‘arbitration agreement’ that seems to exclude the possibility of arbitrating disputes involving matters of public policy. However, the sole fact that rules of public policy in a dispute should not exclude arbitration when the disputed interests are purely private. Private interests of the parties concern rights that can be disposed of and thus subject to arbitration.[47] For a matter to be excluded from arbitration, it must fall under the specific prohibitions of the law. So, what really excludes arbitrability is the fact that the rights involved cannot be disposed of. This criterion arises both from Argentine doctrine[48] and case law.[49]

Connected to arbitration agreements, the New Code excludes the possibility of agreeing on an arbitration clause for certain specific matters. The list[50] points to disputes on civil status or persons’ capacity, family matters, consumer matters, labour matters, and controversies stemming from ‘adhesion contracts’, whatever their object may be.

This last case also triggered developments from Argentine authors and case law. The exclusion from arbitration of contracts involving standard terms did not seem coherent with the spirit of the reform, or the ‘pro-arbitration’ interpretation mandated by the same New Code.[51] Thus, the National Chamber of Appeals in Commercial Matters has mostly stated that, unless abusiveness of the contract can be proven and a public interest is at risk, the arbitration clause in a standard term contract between businesspersons (in which disposable rights are agreed on) is valid.[52]

As a final remark, a positive evolution can be identified in terms of the interpretation of arbitration agreements. The Argentine Supreme Court and lower courts used to affirm that the arbitral jurisdiction is an exception to that of state courts, and that arbitration clauses should be interpreted restrictively.[53] The matter is now regulated in Article 1656 of the New Code, which states that in case of doubt, one must turn to the efficacy of the arbitration agreement (debe estarse a la mayor eficacia del contrato de arbitraje), as reaffirmed by the National Chamber of Appeals in Commercial Matters.[54]

Arbitrators

The ICAL (Article 24) added a final provision to Article 11.2 of the Model Law through which it is expressly stated that any arbitration clause placing a party in a privileged position towards arbitrators’ appointment shall be null.[55] This provision is an exception to a party’s free autonomy to agree on the proceeding for the appointment of arbitrators, aiming to preserve their equality.[56] Such equality would be affected, for instance, if the arbitration agreement provides that only one of the parties shall appoint the sole arbitrator.

The ICAL also expands on the grounds to challenge of arbitrators, expressly including cases of possible lack of independence and impartiality.[57] This is the case when the arbitrator or members of his or her firm acts on behalf of one of the parties in any matter (related or not to the arbitration), and acts on behalf of a third party in a case with the same cause of action or object.

The competent Argentine judge to provide support in the appointment of arbitrators shall be the judge of first instance in commercial matters of the seat of the arbitration.[58]

One case worth commenting on is the unfortunate precedent of Yacyretá.[59] The joint venture ERIDAY had initiated an arbitration against the Entidad Binacional Yacyreta (EBY), an international entity formed by the states of Argentina and Paraguay, in relation to claims based on the erection of the ‘Yacyretá’ dam. In this context, EBY filed a judicial suit against the three members of the arbitral tribunal, asking their resignation from the arbitration. Together with that petition, EBY requested an interim measure to prohibit the arbitrators from continuing with the arbitration, as well as the temporary suspension of the arbitration. The grounds considered for this unusual challenge were related to the issuance of the terms of reference, which EBY declined to sign as it disagreed with its terms. After consecutive rejected challenges within the arbitration proceedings (to the arbitrators and the terms of reference), EBY filed the commented judicial suit, alleging the arbitrators’ lack of impartiality on the basis of prejudgment. Unfortunately, back then (in 2004) the court considered that EBY had a right to request an interim measure based on (1) the arbitral tribunal’s alleged refusal to consider EBY’s arguments for the terms of reference, and (2) ICC’s refusal to recuse the arbitrators. The arbitration has been paralysed on at least four occasions due to anti-arbitration injunctions issued by the Federal Contentious Administrative Court at the request of EBY, the last of them dated 2013.

The arbitration remains suspended to date, as a result of multiple interim measures granted by the Argentine Justice by request of EBY. Beyond this case, it is expected that the current legislation and evolving jurisprudence should be of assistance to the development of arbitration and the tasks of arbitral tribunals, considering that now both the Supreme and lower Argentina courts: count with a clear legal framework for arbitration; that has contributed to their growth into a more favourable view of arbitration; and that translates in less uncalled-fall judicial interference (see ‘Recognition, enforcement and annulment’ below).[60]

Institutional arbitration

Institutional arbitration is expressly provided for both in the ICAL, as regulated in the Model Law and in the New Code.

Article 1657 of the New Code states that parties can require from an institution the appointment of arbitrators, as well as the administration of their arbitral proceedings. In the latter case, the arbitration rules of the institution will govern the proceeding and integrate the arbitration clause.

Argentina is a prolific venue for institutional arbitration. At a domestic level, the most recognised local entities are the Centro de Mediación y Arbitraje Comercial de la Cámara Argentina de Comercio (Commercial Mediation and Arbitration Centre of the Argentine Chamber of Commerce (CEMARC));[61] the Centro Empresarial de Mediación y Arbitraje (Business Centre of Mediation and Arbitration (CEMA));[62] the Tribunal de Arbitraje General de la Bolsa de Comercio de Buenos Aires (General Arbitration Tribunal of the Buenos Aires Stock Market), with its permanent Tribunal;[63] and the Cámara Arbitral de la Bolsa de Cereales de Buenos Aires (Buenos Aires Cereal Market Arbitral Chamber).[64] Although each has its own particularities, these institutions have a long tradition that provide arbitration users with a menu of options to choose who will locally administer their case.

On the other hand, the usual choices for complex or cross-border disputes are the International Chamber of Commerce (ICC) when the contracts or disputes involve significant monetary claims; and, when the dispute involves a state, the Permanent Court of Arbitration, under UNCITRAL Arbitration Rules, given the Permanent Court of Arbitration’s seat agreement with the Argentine state.[65]

Awards

Recognition, enforcement and annulment

The ICAL’s system for annulment, recognition and enforcement of awards is substantially the same as in the Model Law. Below are some specificities of the Argentine law, plus their interpretation by local courts and their evolution through time.

First, Article 86 of the ICAL does not allow parties to dispense with a reasoned award. The motivation of sentences belongs to the set of rights that support the constitutional guarantee of due process.[66]

Other departures from the original text are the following:

  • an award can be declared null, or its recognition and enforcement be rejected, not only when a party is incapable, but when its capacity is restricted;[67]
  • the term to request the annulment of an award is shorter in comparison with the Model Law. Instead of three months, it is reduced to 30 days;[68]and
  • in terms of form, for an award to be recognised or enforced in Argentina, it is necessary that its copy, if an original is not filed, be certificated.[69]

One clarification can be made in the Argentine context, once again, concerning public policy. The ‘public policy exception’ to decline the enforcement of an award or request its annulment must always refer to international public policy,[70] and not domestic.

Further, Argentine courts have recently applied the principles in which the ICAL was inspired in accordance with international standards. As a general rule, the Argentine Supreme Court adopts a restrictive criterion for the judicial review of awards in the context of an annulment request, refusing to review its merits.[71] The application of such criteria, and a favourable view towards arbitration, was expanded to lower courts as well. For instance, the National Chamber of Appeals in Commercial Matters has recently ruled that the validity of an arbitral clause cannot be challenged in enforcement proceedings when such challenge has not already been introduced, and in a timely manner;[72] that an annulment request must be based on the legal deficiencies of the award, not its sense of justice or substantive content;[73] and that an annulment recourse must not be used as an ‘elliptical’ way to revise the merits of an award.[74] The review of the merits of an award has also been rejected when the petitioner alleges ‘arbitrariness’ to plead for annulment. In this scenario, it was recently held that arbitrariness cannot be invoked as a ground to annul an award, since this would only correspond to the scope of an appeal, which in this case had been waived.[75]

Courts’ and doctrine’s sound reasoning has also contributed to shaping a rightful interpretation of the available resources against an award in the domestic context. Article 1656 of the New Code states that in the arbitration clause parties cannot waive the ‘judicial challenge’ of the final award, when such award is ‘contrary to the legal order’. The text was originally included in the context of discussions concerning national sovereignty and the constitutional role of the judiciary.[76] It generated a great volume of discussion among local academics and practitioners with regard to whether such provision referred to the impossibility of waiving an appeal, which would seriously harm the logic of an arbitration system.[77] However, both Argentine authors and judges were clear in their interpretation of the provision: an award that is contrary to the Argentine legal order is a void award, for which the only unwaivable challenge to an award is a request for annulment, and not appeal. Many arguments supported this interpretation:

  • the sources of the New Code provide that the only recourse against an arbitral award is a request for annulment (Civil and Procedural Code of Quebec, the Model Law being Article 34.1 the relevant norm, and the French regulation of 2011);[78]
  • international arbitration treaties signed by Argentina also support this;[79]and
  • the New Code provides that every person can waive their rights as long as such waiver is not forbidden and affects only private interests,[80] which helps interpret a waiver of an appeal in the context of arbitration.[81]

Thus, Article 1656 is then interpreted as a formula composed of the following: (1) annulment cannot be waived, (2) an award is contrary to the legal order when it falls under one of the cases of nullity included in procedural codes, and (3) the waiver of appeals is allowed in the New Code.[82] This means that an appeal would be available to parties unless waived in the arbitration agreement, be it expressly or by integration of a set of arbitration rules that so provides it.

The Argentine Supreme Court has recently reaffirmed the limitations to judicial intervention to arbitration in the case Milantic Trans SA v Ministerio de la Producción (Ast. Río Santiago y ot.).[83] The Supreme Court framed the question here in the following terms: the central point for decision was whether the judges’ faculty to annul an award based on Section V.2 of the New York Convention on public policy grounds, authorises them to ex officio reintroduce defences that had been dealt with and rejected in the lower court.

The case concerned a request for recognition and enforcement of an award rendered in London in favour of Milantic. To resist such petition, the losing party introduced two arguments: first, that the involved public entity involved (Ministerio de la Producción) lacked capacity, since the relevant contract had not been authorised by a provincial law; second, the award was alleged to be contrary to domestic public policy due to its compensation provisions.

The First Instance Court dismissed such defences, and the losing entity appealed, but only the imposition of legal costs. The Chamber of Appeals, however, reviewed the entire decision of the lower court, considering that an appeal on costs required a review of the merits of the decision, and found that there had been an error in the judgment of the arbitral tribunal. Thus, the court concluded that the lack of prior approval by law allowing the Ministerio de la Producción to arbitrate required the award to be annulled.

Milantic reached, first, the Provincial Supreme Court, where its claim was dismissed. The Court considered that, despite the parties’ allegations, judges must control the mechanisms through which state entities agree to arbitration. The judges’ role would thus require to verify whether procedural principles were compromised, and public policy affected, even when a party had not requested such analysis. In this case, the Provincial Supreme Court held that domestic public policy had been compromised by entering into a contract and arbitration agreement without prior authorisation by law.

Before the National Supreme Court, Milantic argued that the lower courts had disregarded the contours of the losing entity’s appeal (costs only), thus ‘reforming’ the subject matter of the first instance decision (and reversing a decision that had not been challenged in the merits) based on the belief that Article V.2 of the New York Convention allowed a court to examine ex officio a possible violation of domestic public policy.

The National Supreme Court took a different approach to that of the Provincial Appeal and Supreme Courts. It interpreted that the review of a matter that had not been the subject of appeal, by way of invoking public policy aspects, constituted a violation of res judicata and the principle of congruence, and thus reversed the lower court’s annulment of the award.

It is noted that, in 2004, the Argentine Supreme Court seems to have attempted the opening of a door for parties to withdraw or revoke their waivers of appeals[84] with the much-debated Cartellone decision.[85] However, such precedent is considered an exceptional one,[86] not generally followed in jurisprudence,[87] which did not take place in the context of an international arbitration, and was issued long before the enactment of the New Code and the ICAL.

On a final note concerning the domestic context, in terms of annulment of awards, the New Code must be read as articulated with the Procedural Code, Articles 760 and 761. According to these rules, an award can be nullified on the grounds of essential breach in the arbitral procedure; when the tribunal renders the award beyond term; exceeded the points at dispute; or in the presence of incompatible decisions in the operative part of the award. The grounds contained in such sections were explained in 2014 as follows:[88]

  • An essential breach of procedure (falta esencial del procedimiento) constitutes a breach of principles to such extent that the absence of due process can be affirmed.
  • When the award is rendered beyond the term, this could entail the loss of arbitral jurisdiction.
  • When the award exceeds the points at dispute, this constitutes a breach of the principle of congruence.
  • When the resolutory part of the award displays incompatible decisions, this in turn renders the award ineffective.

As a result of this exposition, even before the enactment of the New Code and the ICAL, the Commercial Chamber of Appeals declared that an annulment request could not disguise a review of the merits of the award, since this would denaturalise arbitration by depriving it of its benefits.

Conclusion

In sum, Argentine current norms, judicial criteria and legal practice provide a fertile ground for the development of a promising arbitration jurisdiction in the region. Sophisticated infrastructure, a wide range of specialised lawyers, arbitrators and experienced arbitral institutions confirm this statement. Thus, it remains to be seen how the recent developments will unfold in the coming years, to consolidate Argentina as a ‘go-to’ seat in Latin America.


Notes

[1] Ricardo A Ostrower is a partner and Martín Vainstein and Victoria Rodríguez Goyena, are senior associates at Marval O’Farrell Mairal. The authors thank Sol Martina Isuani Caturegli and Nicolás Szlajen and appreciate their assistance in the preparation of this work.

[2] Rivera, Julio C, Arbitraje Comercial. Internacional y Doméstico, Lexis Nexis, Buenos Aires, 2007, p. 31.

[3] Rivera, Arbitraje Comercial. Internacional y Doméstico, p. 31.

[4] See Law No. 26,944, published in the Official Gazette on 8 October 2014 and entered into force on 1 August 2015, available at http://servicios.infoleg.gob.ar/infolegInternet/anexos/235000-239999/235975/texact.htm [accessed 26 April 2022].

[5] See Law No. 27,449 published in the Official Gazette on 26 July 2018 and entered into force on 3 August 2018, available at http://servicios.infoleg.gob.ar/infolegInternet/anexos/310000-314999/312719/norma.htm [accessed 26 April 2022].

[6] See Message by the Executive Branch, elevating the Bill to the Congress, No. 132/16, ¶ 3.

[7] According to Article 129 of the Argentine National Constitution.

[8] See Argentine National Constitution, Articles 75.12 and 121.

[9] By virtue of Article 31 of the Argentine National Constitution.

[10] As indicated in Article 75.22 of the Argentine National Constitution.

[11] According to Article 31 of the Argentine National Constitution.

[12] Other relevant arbitration treaties signed by Argentina are the Inter-American Convention on extraterritorial validity of foreign judgments and arbitral awards (CIDIP II, Montevideo, 1979) and the Acuerdos de Arbitraje Comercial de Mercosur (1998).

[13] As explained in the Fundaments of the Preliminary Bill of the New Code, p. 672, available at http://www.saij.gob.ar/docs-f/ediciones/libros/codigo_civil_comercial.pdf [accessed on 26 April 2022].

[14] According to Article 75.13 of the Argentine National Constitution, as proposed by Caivano, Roque J and Ceballos Ríos, Natalia M in Tratado de Arbitraje Comercial Argentino. Comentario Exegético y Comparado de la Ley 27.449, La Ley, Buenos Aires, 2020, p. 70.

[15] As affirmed by the Supreme Court of Argentina in the case of Correa, Bernabé v. Barros, Mariano R., of 1923, among others.

[16] In particular, the Renewable Energy Regime (created by Decree No 882/2016) and the Public-Private Participation Contract Regime (created by the Law No 27,328 and Decree No. 118/2017).

[17] Rivera, Julio César, ‘El arbitraje en el Proyecto de Código sancionado por el Senado. Prejuicios y errores’, in La Ley, AR/DOC/4643/2013, p. 4.

[18] Federal and Provincial procedural arbitration law, nevertheless, is now outdated and expected to adjust to provisions of the New Code.

[19] This, however, was not the only option considered in the Congress during debates of November, 2012. Congressman Tunessi, when discussing the bill that would lead to the New Code, proposed that a federal arbitration law be enacted regulating both international and domestic arbitration. See the written transcription of the Bicameral Commission’s meeting for the Reform and Unification of the Civil and Commercial Codes, Senators’ Chamber, 22 November 2012.

[20] The exclusivity claimed by the ICAL is expressed in its Article 1. ‘La presente ley se aplicará al arbitraje comercial internacional, y lo regirá en forma exclusiva, sin perjuicio de cualquier tratado multilateral o bilateral vigente en la República Argentina.’ Translation: ‘This law will apply to international commercial arbitration, and will govern it exclusively, with due regard to any multilateral or bilateral treaty in force in the Argentine Republic.’ This is a departure from the original text of the Model Law. Such rules, however, stand three exceptions: (1) the application of arbitration treaties (Article 1 of the ICAL), (2) provisions on arbitrability contained in the New Code (Articlet 5 ICAL), and (3) Article 2605 of the New Code, which allows choice of forum clauses in foreign seats in patrimonial and international matters, except when Argentine judges have exclusive jurisdiction, or the choice is forbidden by law.

[21] Legislation based on the Model Law has been adopted by Mexico (1993), Venezuela (1998), Paraguay (2002), Chile (2004), Peru (2008), Costa Rica (2011) and Uruguay (2018). However, only Peru and Costa Rica had taken the Model Law in its 2006 version.

[22] As stated in the message by the Executive Branch elevating the Bill to the Congress No. 132/16, Para. 4.

[23] For a comprehensive description of the ICAL, see Marval News, New International Commercial Arbitration Law in Argentina, 2 August 2018, available at https://www.marval.com/publicacion/nueva-ley-de-arbitraje-comercial-internacional-en-la-argentina-13212&lang=en [accessed on 26 April 2022].

[24] Thus, Article 1.3.c of the Model Law is not included in the text of the ICAL.

[25] ICAL, Article 3.b.I.; ‘Un arbitraje es internacional si: . . . b) Uno de los siguientes lugares está situado fuera del Estado en el que las partes tienen sus establecimientos: I. El lugar del arbitraje, si éste se ha determinado en el acuerdo de arbitraje o con arreglo al acuerdo de arbitraje.’ Free translation: ‘An arbitration is deemed international when: . . . b) One of the following places is located outside the State in which the parties have their establishments: I. The seat of arbitration, if it has been determined in the arbitration agreement or in accordance with the arbitration agreement.’

[26] ICAL, Article 2: ‘Las disposiciones de la presente ley, con excepción de los Capítulos 2 y 3 del Título II, los Capítulos 4 y 5 del Título V y los Capítulos 1 y 2 del Título IX, se aplicarán únicamente si la sede del arbitraje se encuentra en el territorio de la República Argentina.’ Translation: ‘The provisions of this law, except for Chapters 2 and 3 of Title II, Chapters 4 and 5 of Title V and Chapters 1 and 2 of Title IX, shall apply only if the seat of arbitration is located in the territory of the Argentine Republic’.

[27] See Uzal, Maria E, ‘La internacionalidad, la arbitrabilidad y el derecho aplicable en la nueva Ley de Arbitraje Comercial Internacional’ in La Ley, AR/DOC/3490/2018, p. 5. New Code, Article 2605 ‘Acuerdo de elección de foro. En materia patrimonial e internacional, las partes están facultadas para prorrogar jurisdicción en jueces o árbitros fuera de la República, excepto que los jueces argentinos tengan jurisdicción exclusiva o que la prórroga estuviese prohibida por ley.’ Translation: ‘Forum Choice Agreement. In commercial and international matters, the parties are empowered to extend jurisdiction to judges or arbitrators outside the Republic, unless when Argentine judges have exclusive jurisdiction or that the extension is prohibited by law.’ ICAL, Article 107: ‘Derógase el artículo 519 bis del Código Procesal Civil y Comercial de la Nación. Las previsiones del Capítulo 1 del Título I de la presente ley no obstarán a la aplicación del artículo 2605 del Código Civil y Comercial de la Nación.’ Translation: ‘Be repealed article 519 bis of the National Code of Civil Procedure. The provisions of Chapter 1 of Title I of this law shall not prevent the application of article 2605 of the Civil and Commercial Code.’

[28] Kielmanovich, Jorge L, Código Procesal Civil y Comercial de la Nación Comentado y Anotado, Volume I, Abeledo Perrot, Ciudad Autónoma de Buenos Aires, 2015, Article 1.

[29] Boggiano, Antonio, ‘Observaciones preliminares a la ley argentina de Arbitraje Comercial Internacional 27.449‘, in El Derecho, 21/08/2018, p. 2.

[30] Caivano and Ceballos, in Tratado de Arbitraje Comercial Argentino. Comentario Exegético y Comparado de la Ley 27.449, pp. 62–63.

[31] ICAL, Article 104.b.I: ‘Sólo se podrá denegar el reconocimiento o la ejecución de un laudo arbitral, cualquiera que sea el país en que se haya dictado: . . . b) Cuando el tribunal compruebe: I. Que, según la ley argentina, el objeto de la controversia no es susceptible de arbitraje.‘ Translation: ‘The recognition or enforcement of an arbitral award may only be denied, regardless of the country in which it was rendered: . . . b) When the court verifies: I. That, according to Argentine law, the object of the dispute is not arbitrable.’ See Uzal, Maria E,‘La internacionalidad, la arbitrabilidad y el derecho aplicable en la nueva Ley de Arbitraje Comercial Internacional’ in La Ley, AR/DOC/3490/2018, p. 4.

[32] ICAL, Article 6. ‘A los efectos del artículo 1º, se considerará que es comercial cualquier relación jurídica, contractual o no contractual, de derecho privado o regida preponderantemente por él en el derecho argentino. La interpretación será amplia y en caso de duda, deberá juzgarse que se trata de una relación comercial.’ Translation: ‘For the purposes of article 1, any legal relationship, contractual or non-contractual, of private law or governed predominantly by it in Argentine law shall be deemed commercial. The interpretation will be broad and in case of doubt, it should be decided that it is a commercial relationship.’

[33] Arts 736–773.

[34] According to the Fundaments of the Bill preceding the New Code, , p. 677, available at http://www.saij.gob.ar/docs-f/ediciones/libros/codigo_civil_comercial.pdf [accessed on 26 April 2022].

[35] At present, there is a draft amendment to the arbitration chapter of the New Code that is currently pending before the National Legislative Branch that seeks to correct these deviations.

[36] See Argentine Supreme Court’s decisions in Ricardo Agustín López, Marcelo Gustavo Daelli Juan Manuel Flo Díaz, Jorge Zorzópulos v Gemabiotech SA s/ organismos externos, 5 September 2017 and Estado Nacional – Procuración del Tesoro Nacional c/ (nulidad del laudo del 20-III-09) s/ recurso directo, 6 November 2018, in which the Court decided that the setting aside of an arbitral award is limited to the specific grounds for annulment and refused to analyse the merits of the case in the context of such recourse.

[37] See Brazil-David, Renata: ‘International Commercial Arbitration Involving a State Party and the Defense of State Immunity’, in Am. Rev. Int’l Arb. 22 (2011): 241; see also ICC Commission Report on States, State Entities and ICC Arbitration, International chamber of commerce (ICC) 2012, available at https://iccwbo.org/publication/icc-arbitration-commission-report-on-arbitration-involving-states-and-state-entities-under-the-icc-rules-of-arbitration [accessed on 26 April 2022].

[38] ICC Dispute Resolution 2020 Statistics, available at https://iccwbo.org/publication/icc-dispute-resolution-statistics [accessed on 26 April 2022], p. 11.

[39] Article 1649. Arbitration under the New Code was thought for dispute resolution between companies, as expressed by the Argentine Supreme Court Justice Lorenzetti, one of the authors of the original bill during the debates: ‘It is important to note that arbitration is thought as a way of resolving disputes between companies; that is, it does not apply to consumer relationships nor does it apply to labor or family relationships. However, between companies it is very important that there be arbitration, because Argentina has very low level of use of arbitration compared to Brazil or Peru. Between companies, if they are equal, and they can afford an arbitration proceeding, it is a very good instrument to reduce the litigation and the costs of litigation.’ Reunión de la Comisión Bicameral para la Reforma, Actualización y Unificación de los Códigos Civil y Comercial de la Nación, 14 August 2012.

[40] Article 1651.

[41] See the written transcription of the Bicameral Commission’s meeting for the Reform and Unification of the Civil and Commercial Codes, Senators’ Chamber, 22 November 2012: ’ Translation: ’When the public order is compromised, it is a restricted matter for the parties, therefore, a matter in which public order is involved it cannot be submitted to arbitration either . . . We must preserve the administrative matter and exclude from this matter what is restricted law. Because a right upon which the parties cannot freely agree on is one that is a matter of public order even if it is private law.’

[42] Article 116.

[43] Argentine Supreme Court of Justice, Techint Compañía Técnica Internacional S.A.C. E. e I. c/ Empresa Nuclear Argentina de Centrales eléctricas en liquidación y Nucleoeléctrica Argentina S.A., 5 August 2007.

[44] See Rivera, Julio C. (h) and Vainstein, Martín, ‘The term “commercial” under Argentina’s International Commercial Arbitration Law and its implications for state arbitrations’, in https://www.ibanet.org/article/45ae3c51-5d80-43f7-bcfa-9dba505418e5 [accessed on 26 April 2022].

[45] UNCITRAL’s Recommendation regarding the interpretation of Article II, Paragraph 2, and Article VII, Paragraph 1, of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, done in New York, 10 June 1958, adopted by the United Nations Commission on International Trade Law on 7 July 2006 at its 39th session, available at https://uncitral.un.org/en/texts/arbitration/explanatorytexts/recommendations/foreign_arbitral_awards [accessed on 26 April 2022].

[46] Article 5 of the ICAL: ‘This law shall not affect any other Argentine law by virtue of which certain controversies are not subject to arbitration or can be submitted to arbitration solely in accordance with provisions other than those herein.’

[47] The Procedural Code, Article 737.

[48] Rivera, Julio C, ‘Orden público en el arbitraje comercial’, in La Ley, AR/DOC/3876/2015, p. 3.

[49] National Chamber of Appeals in Commercial Matters, Chamber D, Francisco Ctibor SACI y F c/ Wal-Mart Argentina SRL s/ Ordinario, 20 December 2016.

[50] Article 1651 New Code.

[51] Second paragraph of Article 1656 of the New Code states that ‘[i]n case of doubt, the better efficacy of the arbitration contract must prevail’. Such principle was affirmed by the National Chamber of Appeals in Commercial Matters, Chamber D, Francisco Ctibor S.A.V.I. y F. c/ Wal-Mart Argentina SRL s/ Ordinario, 20 December 2016.

[52] National Chamber of Appeals in Commercial Matters, Chamber C, Servicios Santamaría S.A. c/ Energía de Argentina S.A. s/ Ordinario, 24 May, 2018; Chamber D Soluciones Integrales SRL c/ Ternium Argentina SA s/ Ordinario, 8 February 2022.

[53] As explained in Rivera, Julio C., ‘El arbitraje en Argentina a través de la jurisprudencia’ in La Ley, AR/DOC/3232/2018, Section IV, p. 7. See Supreme Court of Justice, Recurso de hecho deducido por Nucleoeléctrica Argentina S.A. en la causa Techint Compañía Técnica Internacional S.A.C.E. e I. c/ Empresa Nuclear Argentina de Centrales Eléctricas en liquidación y Nucleoeléctrica Argentina S.A., 8 May 2007, National Chamber of Appeals in Commercial Matters, Chamber A, Constructora Iberoamericana S.A. v. Sociedad de Inversiones Inmobiliarias S.A. y otro, 14 February 2006, and National Chamber of Appeals in Civil Matters, Chamber A, Vialco S.A. v. El Fletero SRL, 13 June 1972.

[54] National Chamber of Appeals in Commercial Matters, Francisco Ctibor S.A.V.I. y F. c/ Wal-Mart Argentina SRL s/ Ordinario, 20 December 2016.

[55] Article 24, ICAL: ‘Notwithstanding the provisions of articles 25 and 26, the parties may freely agree on the procedure for the appointment of the arbitrator or arbitrators. A clause that confers a privileged position on a party in terms of the appointment of arbitrators is null and void. In the absence of such agreement: a) In an arbitration with three (3) arbitrators, each party will appoint one (1) arbitrator and the two (2) arbitrators so appointed will appoint the third; if a party fails to appoint the arbitrator within thirty (30) days of receipt of a request from the other party to do so, or if the two (2) arbitrators are unable to agree on the third arbitrator within thirty (30) days counted from his appointment, the appointment will be made, at the request of one of the parties, by the competent court in accordance with article 13; b) In arbitration with a sole arbitrator, if the parties cannot agree on the appointment of the arbitrator, the arbitrator will be appointed, at the request of either party, by the competent court in accordance with article 13.’

[56] Caivano and Ceballos, in Tratado de Arbitraje Comercial Argentino. Comentario Exegético y Comparado de la Ley 27.449, p. 298.

[57] Article 28.

[58] Article 13.

[59] Federal Court of Appeals in Contentious-Administrative Matters of the City of Buenos Aires, Entidad Binacional Yacyretá v. Eriday et al 27 September 2004, and other related proceedings, as described in Parodi, Gustavo: ‘El Caso Yaciretá - o cómo retroceder 80 años - Análisis y comentarios’, in Revista Internacional de Arbitraje, vol 4, January-June 2006, pp. 203–255.

[60] This is a general opinion on arbitration and judicial interference without it being a specific assesment of the Yacyretá case, or any other. Thus, the text here expresses what authors expect the future tendency to be.

[61] CEMARC’s official page, available at https://www.cac.com.ar/institucional/mediacion_y_arbitraje__mediation_and_arbitration_1668 [accessed on 26 April 2022].

[62] CEMA’s official page, available at http://www.medyar.org.ar/index.php [accessed on 26 April 2022].

[63] General Arbitration Tribunal of the Buenos Aires Stock Market´s official page, available at https://www.labolsa.com.ar/institucional/tribunal/ [accessed on 26 April 2022].

[64] Buenos Aires Cereal Market Arbitral Chamber´s official page, available at http://www.cabcbue.com.ar/ [accessed on 26 April 2022].

[65] The Permanent Court of Arbitration and the Argentine Republic have an agreement establishing Argentina as one of the Permanent Court of Arbitration seats.

[66] As explained by Caivano and Ceballos, in Tratado de Arbitraje Comercial Argentino. Comentario Exegético y Comparado de la Ley 27.449, p. 663., in reference to Article 8.1 of the Pacto de San José de Costa Rica.

[67] ICAL, Article 99.a.I. Article 32 of the New Code provides that a judge can restrict a person’s capacity for certain acts when such person suffers an addiction or permanent or prolonged mental alteration, that is serious enough and as long as the exercise of that person’s full capacity could result in damage to his or her own person or assets.

[68] ICAL, Article 100.

[69] ICAL, Article 103. This article is based on Article IV of the New York Convention, which requires that ‘1. To obtain the recognition and enforcement mentioned in the preceding article, the party applying for recognition and enforcement shall at the time of application, supply: (a) The duly authenticated original award or a duly certified copy thereof.’ In this context, it was understood that ‘certification’ of a copy means a written declaration that the instrument in question is a true and complete copy of the tribunal’s original award (UNCITRAL, Guide on the Convention on the Recognition and Enforcement of Foreign Arbitral Awards 109, Paragraphs 43–44, 2016). In Argentina, a certified copy is made by a notary public who attests to the authenticity of the copy with respect to the original document.

[70] See Argentine Supreme Court of Justice, Milantic Trans S.A. c/ Ministerio de la Producción (ast Río Santiago y ot) s/ ejecución de sentencia- recurso extraordinario de inaplicabilidad de ley y nulidad, 5 August 2021.

[71] Argentine Supreme Court of Justice, EN- Procuración del Tesoro Nacional c/ (nulidad del laudo del 20-III-09) s/ recurso directo, 6 November 2018.

[72] National Chamber of Appeals in Commercial Matters, Chamber A, Monsanto Argentina S.R.L. v. Vucko, Mario Celestino s/ Ejecutivo, 5 October 2021.

[73] National Chamber of Appeals in Commercial Matters, Chamber E, MS Master Sweets v. Mondelez Argentina S.A. s/ Recurso de Queja, 5 October 2021.

[74] National Chamber of Appeals in Commercial Matters, Chamber C, Pérez Iturraspe, Teresa Manuela v. Aufiero Jorge Félix s/ Organismos Externos, 9 March 2022.

[75] National Chamber of Appeals in Commercial Matters, Chamber D, 19 December 2017, Pan American Energy LLC (Sucursal Argentina) v. Metrogas SA (Chile) s/ organismos externos.

[76] Journal of Sessions, Chamber of Deputies, 17th Session, 12th Ordinary Session, 12 October 2014, available at https://www.hcdn.gob.ar/secparl/dgral_info_parlamentaria/dip/debates/leyes_24001_27000.html [accessed on 26 April 2022].

[77] See, for instance, Aguilar, Fernando, ‘Arbitraje privado. El artículo 1656, in fine, del Código Civil y Comercial de la Nación. Interpretación’, in Revista del Colegio de Abogados de la Ciudad de Buenos Aires, December 2005, pp. 89–108.

[78] Aguilar, Fernando, ‘Arbitraje privado. El artículo 1656, in fine, del Código Civil y Comercial de la Nación. Interpretación’, pp. 96–99.

[79] Aguilar, Fernando, ‘Arbitraje privado. El artículo 1656, in fine, del Código Civil y Comercial de la Nación. Interpretación’, p. 98, in reference to the Acuerdo sobre Arbitraje Comercial Internacional del Mercosur (Mercosur/CMC/DEC. N.3/98).

[80] Article 944.

[81] Aguilar, Fernando, ‘Arbitraje privado. El artículo 1656, in fine, del Código Civil y Comercial de la Nación. Interpretación’, p. 103.

[82] Rivera, Julio C, ‘Orden público en el arbitraje comercial’, in La Ley AR/DOC/3876/2015, p. 3.

[83] Argentine Supreme Court of Justice, 5 August 2021, Milantic Trans S.A. c/ Ministerio de la Producción (Ast. Río Santiago y ot.) s/ ejecución de sentencia – recurso extraordinario de inaplicabilidad de ley y nulidad, 5 August 2021.

[84] See Rivera, Julio C, ‘El arbitraje en Argentina a través de la jurisprudencia’ in La Ley, AR/DOC/3048/2007, Section X, p. 14 (‘[l]a desmesurada extensión que le ha dado la sentencia Cartellone a la potestad judicial de revisión de laudo es negativa pues: da eficacia al “arrepentimiento” de la renuncia a los recursos)’.

[85] Argentine Supreme Court, José Cartellone Construcciones Civiles S.A. v. Hidroeléctrica Norpatagónica S.A. o Hidronor S.A., 1 June 2004. The Court considered that waiving the appeal of an arbitral award does not entail waiving the appeal of awards when they oppose public policy, in a way that the award could still be challenged if proven to be unconstitutional, illegal, or unreasonable. In the decision, such considerations concerned the application of a certain interest rate, that in the Court’s view would lead to a disproportionate and unreasonable result to the debtor.

[86] National Chamber of Appeals in Commercial Matters, Chamber D, Pan American Energy LLC (Sucursal Argentina) c. Metrogas SA (Chile) s/ organismos externos, 19 December 2017, vote by Justice Vassallo.

[87] Noodt Taquela, María Blanca, ‘Incidencia de los valores globales en la evaluación del orden público internacional en el reconocimiento y la ejecución de los laudos arbitrales extranjeros’, in La Ley, AR/DOC/3752/2018.

[88] National Chamber of Appeals in Commercial Matters, Chamber F, 10 March 2014, Caputo SA v. Emprendimientos Inmobiliarios Arenales SA y otra s. Incumplimiento de Contrato.

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