Argentina

Applicable requirements as to the form of arbitral awards


Applicable legislation as to the form of awards

1     Must an award take any particular form?

Argentina is a party to several international treaties facilitating the recognition and enforcement of arbitral awards, including the following:

  • 1998 Mercosur Agreement on International Commercial Arbitration;
  • 1994 Buenos Aires Protocol on International Jurisdiction in Contractual Matters;
  • 1992 Las Leñas Protocol on Jurisdictional Cooperation and Assistance in Civil, Commercial, Labour and Administrative Law Matters;
  • 1979 Inter-American Convention on Extraterritorial Validity of Judgments and Arbitral Awards (the Montevideo Convention);
  • 1975 Inter-American Convention on International Commercial Arbitration (the Panama Convention);
  • 1965 Convention on the Settlement of Investment Disputes between States and Nationals of other States (the Washington Convention);
  • 1958 Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention); and
  • 1889/1940 Montevideo Treaties on International Procedural Law.

Pursuant to Section 75(22) of the Federal Constitution, international treaties prevail over domestic laws. Therefore, when applicable, the above treaties will prevail over domestic arbitration laws. The answers provided in this chapter focus on domestic law exclusively.

Nevertheless, the answers to most of the following questions may vary, depending on whether the arbitration is international or domestic, as each form of arbitration is regulated separately.

International commercial arbitration

International commercial arbitration is governed by Law 27,449 (the ICA Law), which is based on the UNCITRAL Model Law and entered into force in August 2018. The ICA Law is a federal law that governs international commercial arbitration throughout the country, including both its substantive and procedural aspects.

Under Article 3 of the ICA Law, an arbitration is deemed international if (1) the parties to an arbitration agreement have, at the time of the conclusion of that agreement, their places of business in different states, or (2) one of the following places is situated outside the state in which the parties have their places of business:

  • the place of arbitration if determined in, or pursuant to, the arbitration agreement;
  • the place where a substantial part of the obligations of the commercial relationship is to be performed; or
  • the place with which the subject matter of the dispute is most closely connected.

Article 6 of the ICA Law provides a wide definition of the term ‘commercial’, as any legal relationship, contractual or non-contractual, of private law or governed predominantly by it under Argentine law.

Pursuant to Articles 86 to 89 of the ICA Law, awards issued in an international arbitration shall:

  • be in writing;
  • be signed by the arbitrators, although in arbitral proceedings with more than one arbitrator, the signatures of the majority of the members of the arbitral tribunal shall suffice, provided that the award states the reason for any omitted signature;
  • be reasoned;
  • be dated; and
  • indicate the seat of the arbitration.

A copy of the award, signed by the members of the tribunal, must be served to each party.

Domestic arbitration

Domestic arbitration is governed by separate bodies. The procedural codes of each jurisdiction (i.e., the Autonomous City of Buenos Aires and each province) regulate the procedural aspects of arbitration. Despite the existence of different procedural codes, reference is made hereinafter to the Federal Code of Civil and Commercial Procedure (the FCP) because it is applicable in the Autonomous City of Buenos Aires, where most arbitrations take place, and because provincial codes are in most cases based on the FCP. Contractual aspects of arbitration (i.e., arbitration agreements) are regulated by the Civil and Commercial Code (the CCC), which is applied by both federal and provincial courts throughout the country.

The arbitration provisions of the FCP do not specifically regulate the form of the award issued in domestic arbitration. Article 757 of the FCP states only that if an arbitrator resists meeting with its co-arbitrators for deliberations or the preparation of the award, the award will be valid if it is signed by the majority of the members of the arbitral tribunal. In the absence of other specific rules, a court might apply by analogy the formal requirements established for court judgments. Pursuant to Article 163 of the FCP, a court judgment shall contain, in essence:

  • the place in which it was rendered and the date;
  • the forename and surname of each of the parties;
  • a summary of the subject matter of the trial;
  • an analysis of the subject matter;
  • the motivation and the application of the law;
  • an express, positive and precise decision;
  • a time limit for compliance;
  • a decision on the costs and fees; and
  • the signature.

Applicable procedural law for recourse against an award


Applicable legislation governing recourse against an award

2     Are there provisions governing modification, clarification or correction of an award? Are there provisions governing retractation or revision of an award? Under what circumstances may an award be retracted or revised (for fraud or other reasons)?

According to Articles 93 to 97 of the ICA Law, applicable to international commercial arbitrations, any party may request, within 30 days of receipt of the award, (1) to correct in the award any errors in computation, any clerical or typographical errors or any errors of a similar nature, (2) to give an interpretation of a specific point or part of the award, and (3) to issue an additional award in respect of claims presented in the arbitral proceedings but omitted from the award. If the arbitral tribunal considers the request to be justified, it shall make the correction or give the interpretation within 30 days, or shall issue the additional award within 60 days of receipt of the request. The arbitral tribunal may correct any errors of the types mentioned above on its own initiative within 30 days of the date of the award.

The ICA Law contains no provision regarding the retractation or revision of arbitral awards. The only recourse available against arbitral awards is an application to set aside.

Article 758 of the FCP, applicable to domestic arbitrations, states that the same remedies against court judgments are available against arbitral awards issued in domestic arbitration. This includes the petition for clarification regulated in Article 166(2), whereby a party may request:

  • the correction of any material error;
  • clarification of any vague or ambiguous expressions, provided that this does not entail a material modification of the decisions; and
  • an additional decision in respect of claims presented in the proceedings but omitted from the judgment.

Articles 759 and 760 of the FCP set forth that these remedies are unwaivable and must be filed before the arbitral tribunal within five days of the date on which the award was served.

The FCP contains no provision regarding the retractation or revision of arbitral awards. The only recourses available against arbitral awards issued in arbitrations in law are an appeal on the merits (unless waived expressly or by reference to the applicability of a set of arbitration rules) and an application to set aside. The only recourse available against arbitral awards issued in arbitrations in equity is an application to set aside.


Appeals from an award

3     May an award be appealed to or set aside by the courts? What are the differences between appeals and applications to set aside awards?

Article 98 of the ICA Law sets forth that the only recourse to a court against an arbitral award issued in international arbitration is an application for setting aside. The grounds for setting aside are listed in Article 99 and are virtually identical to those contained in the UNCITRAL Model Law. Under Article 100, an application for setting aside may not be made once 30 days have elapsed since the date on which the award was served on the party requesting the annulment. Article 13 of the ICA Law provides that the commercial court of appeals of the seat of the arbitration is the competent court for hearing an application for setting aside.

The remedies against an arbitral award issued in a domestic arbitration vary depending on whether the arbitration is in law or in equity.

Arbitration in law

Article 758 of the FCP sets forth that the same remedies against court judgments are available against arbitral awards, provided that the parties did not waive them. In practice, this means that a party can file an appeal on the merits (unless it waived its right to do so) or an application for setting aside (unwaivable). Articles 760 and 761 of the FCP contain the grounds for setting aside:

  • an essential procedural violation;
  • not rendering the award within the time limit;
  • rendering the award on matters not submitted to arbitration; and
  • inconsistent decisions in the dispositive part of the award.

The difference between an appeal and an application to set aside is that an appeal permits a review of the merits of an arbitral award. Therefore, a judicial court hearing an appeal can review issues of law as well as the findings on facts as determined by the arbitral tribunal. An application for setting aside the award is limited to procedural violations. Unlike an appeal, a court hearing an application for setting aside cannot review the merits of the arbitrators’ decision.

Article 759 of the FCP establishes that the remedies must be filed before the arbitral tribunal within five days of the date on which the award was served. Once a party appeals or files an application for setting aside with the arbitral tribunal, the latter must grant or refuse to grant leave. If it grants leave, it must transfer the appeal or the application for setting aside to the competent court. If it refuses to grant leave, the interested party can file a complaint against the refusal with the competent court and the latter has the discretion to overturn the arbitral tribunal’s decision refusing leave.

Pursuant to Article 763 of the FCP, the competent court is the second instance court that would have heard any appeal or application against a judgment of the first instance court that would have decided the dispute had no arbitral agreement been executed. The parties can agree to submit those remedies to another arbitral tribunal.

Article 760 of the FCP states that an application for setting aside cannot be waived, so, in practice, an appeal on the merits is the only remedy that could be waived by the parties. However, this doctrine was mitigated by the Federal Supreme Court in 2004 in the Cartellone case (Fallos 327:1881), in which it concluded that arbitral awards are subject to judicial review, even if the parties waived their right to appeal, whenever arbitral awards violate public policy or are unconstitutional, illegal or unreasonable. On the basis of this doctrine, the Federal Supreme Court reviewed an award on the merits and partially revoked it, notwithstanding that it had to decide on an application for setting aside.

This decision was strongly criticised by arbitration experts and its scope remains unclear. The fact that the Cartellone case was related to public works and involved a state-owned company has led some scholars to conclude that this precedent is limited to decisions issued by the tribunals created by the Public Works Law 13,064, and does not extend to commercial arbitrations between private parties.

The Federal Supreme Court never explained the scope of its decision. Although it has subsequently analysed the possible application of the Cartellone doctrine to other cases, it has not applied it again. In more recent cases, the Court has acknowledged that if the parties waived their right to appeal an award, the only way of judicial review would be the application for setting aside contained in Article 760 of the FCP.

Unfortunately, the CCC has added more uncertainty to this matter. The last paragraph of Article 1656 of the CCC states that final arbitral awards may be reviewed by the competent courts when grounds for total or partial annulment are invoked under the provisions of ‘this Code’. It also provides that the parties cannot waive their right to ‘challenge’ the final award that is ‘contrary to law’. This paragraph presents at least three problems. First, it refers to grounds for setting aside that are invoked pursuant to the provisions of ‘this Code’, when the CCC does not contain any grounds for setting aside arbitral awards. Second, it refers to the inability of waiving the right to ‘challenge’ the final award, without specifying whether it refers to the inability to waive the right to appeal the award or the right to request the annulment of the award. Third, Article 1656 refers to the challenge of final awards that are ‘contrary to law’, which is a very broad concept.

The last paragraph of Article 1656 could be interpreted in at least in two ways. One possible interpretation is that the paragraph refers to the application for setting aside. Therefore, when it refers to ‘this Code’, it should be understood as a reference to the procedural code that could apply to the case, which does contain specific grounds for setting aside awards. When it refers to the inability to waive the right to challenge the final award, it should be understood as the inability to waive the right to request the annulment of the award, as established in the FCP. Finally, when it refers to challenging awards that are contrary to law, it should be understood as the challenging of awards that are contrary to the applicable procedural law.

Another possible interpretation is that the last sentence of Article 1656 refers to the appeal of the award. Therefore, when it provides that the parties cannot waive their right to challenge a final award that is ‘contrary to law’, it should be understood as the inability to waive the right to appeal the award. However, this interpretation would contradict the provisions of the FCP and the main purpose of arbitration, which is to displace disputes from the competence of the judicial courts, except for the review of final awards based on specific grounds for setting aside.

The few court decisions that have addressed this matter have adopted the first interpretation. After taking into account the purpose of the arbitration provisions contained in the CCC, they concluded that the last paragraph of Article 1656 refers only to the inability of waiving the right to request the annulment of the award and that the grounds for setting aside are those contained in the applicable procedural law.

Scholars have also stated that this paragraph, in addition to having been defectively drafted, is unconstitutional because it refers to a procedural matter and the Federal Congress is not empowered to regulate such matters. However, as yet, there is no case law in this regard.

Arbitration in equity

Article 771 of the FCP establishes that awards rendered by amiables compositeurs cannot be appealed but can be set aside if the arbitral tribunal does not render the award within the time limit or renders the award on matters not submitted to arbitration. This remedy must be filed with the first instance court that would have decided the dispute had no arbitral agreement been executed, within five days of the date on which the award was served.

Although the CCC falls short of clarifying the point, the discussion arising in relation to Article 1656 described above should not apply to arbitration in equity since this provision refers to legal challenges and amiables compositeurs are not required to apply the law.

Applicable procedural law for setting aside of arbitral awards


Time limit

4     Is there a time limit for applying for the setting aside of an arbitral award?

Pursuant to Article 100 of the ICA Law (applicable to commercial international arbitrations), an application for setting aside must be submitted within 30 days of the date on which the award was served on the party seeking the annulment.

Pursuant to Article 759 of the FCP (applicable to domestic arbitrations), an application for setting aside must be filed within five days of the date on which the award was served on the party seeking the annulment.


Award

5     What kind of arbitral decision can be set aside in your jurisdiction? Can courts set aside partial or interim awards?

Neither the ICA Law nor the FCP contains references to the possibility of setting aside partial or interim awards. In some cases governed by the FCP, the courts have admitted applications for setting aside partial awards on the grounds that partial awards were considered as final concerning the matters they resolved, or dismissed applications for setting aside partial awards because the parties waited until the issuance of the final award to request the annulment of a partial award. In other cases, the courts followed a different criterion.


Competent court

6     Which court has jurisdiction over an application for the setting aside of an arbitral award?

Pursuant to Article 13 of the ICA Law (applicable to international commercial arbitrations), the commercial court of appeals of the seat of the arbitration is the competent court for hearing an application for setting aside.

Pursuant to Article 763 of the FCP (applicable to domestic arbitrations), the competent court is the second instance court that would have heard any appeal or application against a judgment of the first instance court that would have decided the dispute had no arbitral agreement been executed. The parties can agree to submit those remedies to another arbitral tribunal, although this is rarely seen in practice.


Form of application and required documentation

7     What documentation is required when applying for the setting aside of an arbitral award?

When applying for the setting aside of an arbitral award, the party seeking the annulment shall supply the original award or a certified copy thereof. The law does not clarify what type of certification is necessary. The certified copies issued by some arbitral institutions should be sufficient. Certified copies made by a foreign notary public need to be duly legalised.

The courts may also require a record of the arbitral proceedings or the document containing the arbitration agreement.


Translation of required documentation

8     If the required documentation is drafted in a language other than the official language of your jurisdiction, is it necessary to submit a translation with the application for the setting aside of an arbitral award? If yes, in what form must the translation be?

Article 103 of the ICA Law sets forth that a court may request a party to provide a translation when an award is not made in Spanish. The use of the word ‘may’ suggests that a translation might not be necessary in all cases (e.g., if the court understands the language of the award and the defendant does not request a translation). However, this is unlikely to happen in practice because Article 123 of the FCP establishes that any document in a foreign language must be translated into Spanish by a sworn translator from Argentina.

Article 6 of Law 20,305 (which governs the profession of certified translators in the federal capital) provides that any document in a foreign language that is submitted to agencies, entities or public, judicial or administrative bodies of the state, the City of Buenos Aires or of the National Territory of Tierra del Fuego, Argentine Antarctica and Islands of the South Atlantic must be accompanied by its respective translation into the national language, and be signed by a certified translator registered in the jurisdiction where the document is presented. Although some scholars consider that a translation made abroad is valid, provided that the signature and stamp of the translator are legalised or the translator formally appears before the court, in practice, it is required that the translation be made by a certified translator in Argentina.


Other practical requirements

9     What are the other practical requirements relating to the setting aside of an arbitral award? Are there any limitations on the language and length of the submissions and of the documentation filed by the parties?

There are no limitations with regard to the language (other than translations) or the length of submissions and documentation.

According to Law 23,989, all proceedings with a monetary value are subject to a 3 per cent court tax, and all recourses filed with the courts are subject to a 1.5 per cent court tax. If the proceeding does not have a monetary value, or if the monetary value is undetermined, the claimant must pay 1,500 Argentine pesos and, in the latter case, must pay the balance once the proceeding is over and the value is determined.

Therefore, in domestic arbitrations, if the award is issued in an arbitration in law, the party requesting its annulment must pay 1.5 per cent of the monetary value of the award because its request is technically a recourse. In contrast, if the award is issued in an arbitration in equity, the party requesting its annulment must pay 3 per cent of the monetary value of the award because its request is technically not a recourse but an independent legal action.

In international commercial arbitration, the applicant should pay the 1.5 per cent court tax regardless of whether the award was issued in an arbitration in law or in equity, as the application for setting aside would technically be a recourse to be decided by the Court of Appeals.


Form of the setting-aside proceedings

10     What are the different steps of the proceedings?

The ICA Law does not govern the proceeding for setting aside an arbitral award. It only states that an application must be filed with the competent court. In practice, courts will probably hear the other party before deciding on the application.

In domestic arbitrations, the procedure governing the recourse against arbitral awards varies depending on whether the arbitration is in law or in equity.


Arbitration in law

Once an appeal or application for setting aside is filed with the arbitral tribunal, the latter must grant or refuse to grant leave. If the tribunal grants leave, the appeal or the application for setting aside must be transferred to the competent court. If the tribunal refuses to grant leave, the applicant can file a complaint against that refusal with the competent court, and the latter has the discretion to overturn the arbitral tribunal’s decision to refuse leave.

Article 760 of the FCP provides that an application for setting aside shall be resolved ex parte. However, in practice, the courts usually hear both parties before issuing any decisions. Some courts have even held that Article 760 is unconstitutional because it violates due process.

Article 761 of the FCP sets forth that if the arbitration proceedings have been conducted in line with regulations and only the arbitral award itself is void, the court, at the request of a party, may rule on the dispute.


Arbitration in equity

An application for setting aside must be filed within five days of the date on which the award was served on the parties, before the first instance court that would have decided the dispute had no arbitral agreement been entered into. The other party will have five days to respond to the application, and the decision of the court will not be subject to any recourse.


Suspensive effect

11     Do setting-aside proceedings have suspensive effect? May an arbitral award be recognised or enforced pending the setting-aside proceedings in your jurisdiction?

There is no specific provision concerning the suspensive effect of applications for setting aside against arbitral awards, although there are cases in which courts have stayed the enforcement of arbitral awards subject to an application for setting aside.

With regard to the recognition of an award pending the setting-aside proceedings, Article 104(a)(v) of the ICA Law (applicable to international commercial arbitrations) provides that the recognition or enforcement of an arbitral award may be refused if the applicant furnishes proof that the award has not yet become binding on the parties or has been set aside or suspended by a court of the country in which, or under the law of which, that award was made.


Grounds for setting aside an arbitral award

12     What are the grounds on which an arbitral award may be set aside?

Pursuant to Article 99 of the ICA Law (applicable to international commercial arbitrations), the award may be set aside if:

  • the party making the application furnishes proof that:
    • a party to the arbitration agreement was under some incapacity or capacity restriction, or the agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under Argentine law;
    • the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings, or was otherwise unable to present its case;
    • the award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or contains decisions on matters beyond the scope of the submission to arbitration, provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, only that part of the award that contains decisions on matters submitted to arbitration cannot be set aside; or
    • the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless the agreement was in conflict with a provision of this Law from which the parties cannot derogate, or, failing such an agreement, was not in accordance with this Law; or
  • if the court finds that:
    • the subject matter of the dispute is not capable of settlement by arbitration under the law of this state; or
    • the award would be contrary to Argentine public policy.

Pursuant to Article 760 of the FCP (applicable to domestic arbitrations), the grounds for setting aside an award are:

  • an essential procedural violation;
  • not rendering the award within the time limit;
  • rendering the award on matters not submitted to arbitration; and
  • inconsistent decisions in the dispositive part of the award.

Decision on the setting-aside application

13     What is the effect of the decision on the setting-aside application in your jurisdiction? What challenges are available?

If the application for setting aside is granted, the arbitral award becomes null and void, regardless of whether the arbitration was international or domestic.

Article 761 of the FCP (applicable to domestic arbitration) sets forth that if the arbitration proceedings had been conducted in line with regulations and only the arbitral award itself is void, the court, at the request of a party, may rule on the dispute.

A decision by the Court of Appeals to set aside an arbitral award issued in international commercial arbitrations, or domestic arbitrations in law, can be appealed to the Federal Supreme Court, provided that the requirements set forth in Article 14 of Law 48 are met. The first instance court decision to set aside an arbitral award issued in domestic arbitration in equity is, as a general rule, not subject to appeal.


Effects of decisions rendered in other jurisdictions

14     Will courts take into consideration decisions rendered in the same matter in other jurisdictions or give effect to them?

An Argentine court will recognise and enforce a foreign judgment provided that it complies with the requirements set forth in Article 517 of the FPC. This Article provides that foreign judgments can be recognised and enforced in Argentina if they comply with the following requirements:

  • the judgment has res judicata authority in the jurisdiction in which it was issued;
  • the judgment is rendered by a competent court in accordance with Argentine rules of international jurisdiction;
  • the judgment is the result of a personal legal action or an in rem legal action concerning personal property moved to Argentine territory during or after the foreign trial;
  • the defendant was duly summoned and was able to present his or her case;
  • the judgment meets the requirements to be considered in the place in which it was issued and complies with the authenticity conditions required by national laws;
  • the judgment does not affect Argentine principles of public policy; and
  • the judgment is not incompatible with a judgment issued before or simultaneously by an Argentine court.

Applicable procedural law for recognition and enforcement of arbitral awards


Applicable legislation for recognition and enforcement

15     What is the applicable procedural law for recognition and enforcement of an arbitral award in your jurisdiction? Is your jurisdiction party to treaties facilitating recognition and enforcement of arbitral awards?

Argentina is a party to several treaties facilitating the recognition and enforcement of arbitral awards:

  • 1998 Mercosur Agreement on International Commercial Arbitration;
  • 1994 Buenos Aires Protocol on International Jurisdiction in Contractual Matters;
  • 1992 Las Leñas Protocol on Jurisdictional Cooperation and Assistance in Civil, Commercial, Labour and Administrative Law Matters;
  • 1979 Inter-American Convention on Extraterritorial Validity of Judgments and Arbitral Awards (the Montevideo Convention);
  • 1975 Inter-American Convention on International Commercial Arbitration (the Panama Convention);
  • 1965 Convention on the Settlement of Investment Disputes between States and Nationals of other States (the Washington Convention);
  • 1958 Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention); and
  • 1889/1940 Montevideo Treaties on International Procedural Law.

Pursuant to Section 75(22) of the Federal Constitution, international treaties prevail over domestic laws. Therefore, when applicable, the above treaties will prevail over domestic arbitration laws. The answers provided herein are focused exclusively on domestic law.

The recognition and enforcement of awards issued in international commercial arbitration are governed by Articles 102 to 106 of the ICA Law.

Awards issued in domestic arbitration (i.e., arbitrations that do not qualify as international or commercial under the ICA Law) have the same status as domestic court judgments, so no recognition procedure is applicable. They are immediately enforceable through the same procedure established for domestic court judgments in Article 499 et seq. of the FCP.


The New York Convention

16     Is the state a party to the 1958 New York Convention? If yes, what is the date of entry into force of the Convention? Was there any reservation made under Article I(3) of the Convention?

Argentina is a party to the New York Convention. It was approved by Law 23,619 on 28 September 1988, ratified on 14 March 1989 and entered into force on 12 June 1989.

Argentina has declared that (1) on the basis of reciprocity, it will apply the Convention only to the recognition and enforcement of foreign arbitral awards made in the territory of another contracting state, (2) it will apply the Convention only to differences arising out of legal relationships, whether contractual or not, which are considered as commercial under its national law, and (3) the Convention will be interpreted in accordance with the principles and disposition of the Federal Constitution.

Recognition proceedings


Time limit

17     Is there a time limit for applying for the recognition and enforcement of an arbitral award?

Argentina law does not contain a specific time limit for recognition and enforcement of an arbitral award. Therefore, in practice, an Argentine court could be inclined to apply the residual general limitations period of five years contained in the CCC.


Competent court

18     Which court has jurisdiction over an application for recognition and enforcement of an arbitral award?

Neither the ICA Law nor the FCP indicates which is the competent court to hear an application for recognition and enforcement of awards. These applications are usually filed with the competent first instance court. This solution is in line with Article 518 of the FCP, which sets forth that an application for recognition and enforcement of foreign court judgments must be filed with the competent first instance court.


Jurisdictional and admissibility issues

19     What are the requirements for the court to have jurisdiction over an application for recognition and enforcement and for the application to be admissible? Must the applicant identify assets within the jurisdiction of the court that will be the subject of enforcement for the purpose of recognition proceedings?

There is no provision regulating Argentina’s jurisdiction over an application for recognition and enforcement of arbitral awards. However, there is case law establishing that Argentina has jurisdiction if the party against whom a court judgment is invoked is domiciled or has assets in Argentina (Aguinda Salazar v. Chevron Corporation).

The enforcement of awards issued in domestic arbitration does not normally present jurisdictional problems because they do not have relevant connecting factors with other jurisdictions.

To be admissible, an application must supply the original award or a certified copy thereof. The law does not clarify what type of certification is necessary. The certified copies issued by some arbitral institutions should be sufficient. Certified copies made by a foreign notary public need to be duly legalised.


Form of the recognition proceedings

20     Are the recognition proceedings in your jurisdiction adversarial or ex parte? What are the different steps of the proceedings?

Recognition proceedings are adversarial under both the ICA Law and the FCP.

The proceeding for the recognition and enforcement of awards is a court proceeding. Since the ICA Law and the FCP do not expressly regulate these proceedings, in practice, the rules governing ancillary proceedings apply. On submission of an application for recognition and enforcement of an arbitral award, the court notifies the party against whom it is invoked, which will have five days to respond to the application and offer the evidence on which it intends to rely.

The production of evidence is limited in ancillary proceedings. Expert reports can be prepared only by experts appointed by the court. Each party cannot offer more than five fact witnesses and their statements cannot take place outside the jurisdiction, whatever their domicile.

The decision of the court on the recognition or enforcement of the arbitral award may be appealed by the parties.


Form of application and required documentation

21     What documentation is required to obtain recognition?

According to Article 103 of the ICA Law, the party relying on an award or applying for its enforcement shall supply the original award or a certified copy thereof.

The FCP is silent in this regard. The party relying on an award issued in a domestic arbitration or applying for its enforcement shall supply the original award or a certified copy thereof. The courts may also require a record of the arbitral proceedings or the document containing the arbitration agreement.


Translation of required documentation

22     If the required documentation is drafted in a language other than the official language of your jurisdiction, is it necessary to submit a translation with an application to obtain recognition? If yes, in what form must the translation be?

Article 103 of the ICA Law sets forth that the court may request a party to provide a translation when the award is not made in Spanish.

The use of the word ‘may’ suggests that a translation might not be necessary in all cases (e.g., if the court understands the language of the award and the defendant does not request a translation). However, this is unlikely to happen in practice because Article 123 of the FCP establishes that any document in a foreign language submitted in court proceedings must be accompanied by a translation, signed by a certified translator.

Similarly, Article 6 of Law 20,305 (which governs the profession of certified translators in the Federal Capital) provides that any document in a foreign language that is submitted to agencies, entities or public, judicial or administrative bodies of the state, the City of Buenos Aires, or of the National Territory of Tierra del Fuego, Argentine Antarctica and Islands of the South Atlantic must be accompanied by its respective translation into the national language, and be signed by a certified translator registered in the jurisdiction where the document is presented.

Although some scholars consider that a translation made abroad is valid, provided that the signature and stamp of the translator are legalised or the translator formally appears before the court, in practice, it is required that the translation be done by a certified translator in Argentina.


Other practical requirements

23     What are the other practical requirements relating to recognition and enforcement? Are there any limitations on the language and length of the submissions and of the documentation filed by the parties?

According to Law 23,989, all proceedings with a monetary value are subject to a 3 per cent court tax on the amount of the claim. If the proceeding does not have a monetary value, or if the monetary value is undetermined, the claimant must pay 1,500 pesos and, in the latter case, must pay the balance once the proceeding is over and the value is determined.

Therefore, a party seeking the enforcement of an award must pay 3 per cent of the monetary value of the award. The situation is unclear, however, with respect to an application exclusively for recognition. There is one precedent in which it was concluded that the recognition of an award was merely declarative and did not have a monetary value. Although this precedent concerned the determination of attorneys’ fees, its doctrine could also be extended to the payment of court tax. There is another precedent, however, in which the court found that an application for recognition had a monetary value and, therefore, the applicant had to pay the 3 per cent court tax.

There are no limitations with regard to language (except the need for translations) or length of the submissions and documentation.


Recognition of interim or partial awards

24     Do courts recognise and enforce partial or interim awards?

Neither the ICA Law nor the FCP explicitly provides the possibility of recognising or enforcing partial or interim awards. If a partial or interim award is final in respect of the matters it determines, it should be recognised and enforced by Argentine courts. However, as yet, there is no case law in this regard.


Grounds for refusing recognition of an arbitral award

25     What are the grounds on which an arbitral award may be refused recognition? Are the grounds applied by the courts different from those provided under Article V of the New York Convention?

The grounds for refusing the recognition and enforcement of awards issued in international arbitration are listed in Article 104 of the ICA Law and are virtually identical to those contained in Article V of the New York Convention. Article 104 of the ICA Law sets forth those grounds that:

  • are to be proven by the party seeking recognition or enforcement, namely:
    • incapacity of the parties or restrictions in the capacity of the parties to conclude an arbitration agreement;
    • invalidity of the arbitration agreement;
    • inability of a party to present its case;
    • matters not submitted to arbitration;
    • failure to comply with the arbitral proceeding; and
    • non-binding, set-aside or suspension of the award; and
  • a court may consider ex officio, namely:
    • non-arbitrability of the subject matter of the dispute; and
    • violation of public policy.

There are only two differences from the New York Convention: (1) in addition to ‘incapacity’, the ICA Law includes ‘capacity restriction’ as a ground for refusal; and (2) instead of referring to ‘public policy’, the ICA Law refers to ‘Argentine international public policy’.

The grounds for refusing the enforcement of an award issued in a domestic arbitration are set forth in Article 506 of the FCP:

  • forgery or falsification of the award;
  • extinction of the obligation owing to the lapse of a limitation period;
  • payment of the award; and
  • extension of the payment period or total or partial waiver of the right to collect the award by the creditor.

Some courts have rejected defences other than those listed in Article 506 of the FCP, such as the existence of an application for setting aside the award pending before a different court, and the arbitral tribunal’s lack of jurisdiction when that a plea was not raised during the arbitration. Other courts have been more flexible, however, and have accepted other defences, such as the lack of notice of the arbitral proceedings.

The assertion of these grounds must be based on facts that occurred after the issuance of the award and must be proved with trial records or documents issued by the creditor. Article 507 of the FCP sets forth that no other means of evidence are admissible. However, it has been stated that a court could exceptionally authorise the production of additional evidence in certain cases.


Effect of a decision recognising an arbitral award

26     What is the effect of a decision recognising an arbitral award in your jurisdiction?

A decision recognising a foreign award may be appealed. If the decision is not appealed within statutory time limits, or the appellate court upholds the decision, it will become enforceable.

Awards issued in domestic arbitration are considered to have the same status as court judgments, so no recognition procedure is needed. They are immediately enforceable.


Decisions refusing to recognise an arbitral award

27     What challenges are available against a decision refusing recognition in your jurisdiction?

A decision refusing recognition of a foreign award may be appealed.


Recognition or enforcement proceedings pending annulment proceedings

28     What are the effects of annulment proceedings at the seat of the arbitration on recognition or enforcement proceedings in your jurisdiction?

Article 105 of the ICA Law provides that the court where recognition or enforcement is sought may stay its decision if an application for setting aside or suspension of an award has been made. However, as yet, there is no case law in this regard.

The FCP is silent on this matter. Under Article 499 of the FCP, an award issued in a domestic arbitration will be enforceable only if it has res judicata authority. Therefore, a court should not enforce an award that is subject to set-aside applications. However, some courts have rejected defences other than those listed in Article 506 of the FCP, including the existence of an application for setting aside the award pending before a different court.


Security

29     If the courts adjourn the recognition or enforcement proceedings pending annulment proceedings, will the defendant to the recognition or enforcement proceedings be ordered to post security?

Article 105 of the ICA Law provides that the court where recognition or enforcement is sought may, on application by the party claiming recognition or enforcement of the award, order the other party to provide appropriate security. However, as yet, there is no case law in this regard.

The FCP is silent on this matter. Under Article 499 of the FCP, an award issued in a domestic arbitration will be enforceable only if it has res judicata authority. Therefore, a court should not proceed with the enforcement of an award issued in domestic arbitration nor order the posting of security.


Recognition or enforcement of an award set aside at the seat

30     Is it possible to obtain the recognition and enforcement of an award that has been fully or partly set aside at the seat of the arbitration? If an arbitral award is set aside after the decision recognising the award has been issued, what challenges are available?

Article 104(a)(v) of the ICA Law sets forth that a court may refuse to recognise or enforce an award if the party against whom it is invoked proves that the award has not yet become binding on the parties or has been set aside or suspended by a court of the country in which, or under the law of which, that award was made. There is no case law in this regard as yet. A court should not enforce an award issued in domestic arbitration and set aside at the seat.

Service


Service in your jurisdiction

31     What is the procedure for service of extrajudicial and judicial documents to a defendant in your jurisdiction? If the extrajudicial and judicial documents are drafted in a language other than the official language of your jurisdiction, is it necessary to serve these documents with a translation?

The FCP allows different service methods (e.g., official notice, public summons, notarial certificate, registered mail) depending on the type of document. However, under Article 136 of the FCP, service of the claim can be made only by official notice or notarial certificate.

Argentina has ratified several treaties that could apply to the service of documents in international cases, including:

  • 1992 Las Leñas Protocol on Jurisdictional Cooperation and Assistance in Civil, Commercial, Labour and Administrative Law Matters;
  • 1975 Inter-American Convention on Letters Rogatory;
  • 1965 Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (the Hague Convention);
  • 1954 Hague Convention on Civil Procedure; and
  • 1889 Montevideo Treaty on International Procedural Law.

Documents drafted in a foreign language must be served with a translation in Spanish.


Service out of your jurisdiction

32     What is the procedure for service of extrajudicial and judicial documents to a defendant outside your jurisdiction? Is it necessary to serve these documents with a translation in the language of this jurisdiction?

Article 132 of the FCP sets forth that any communication addressed to a foreign judicial authority will be made through letters rogatory. Article 2612 of the CCC provides that Argentine courts may also establish direct communications with foreign courts.

The following treaties could also be applied to the service of documents out of Argentina:

  • 1992 Las Leñas Protocol on Jurisdictional Cooperation and Assistance in Civil, Commercial, Labour and Administrative Law Matters;
  • 1975 Inter-American Convention on Letters Rogatory;
  • 1965 Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (the Hague Convention);
  • 1954 Hague Convention on Civil Procedure; and
  • 1889 Montevideo Treaty on International Procedural Law.

Identification of assets


Asset databases

33     Are there any databases or publicly available registers allowing the identification of an award debtor’s assets within your jurisdiction?

There is no database or publicly available registry allowing the identification of all debtors’ assets, but there are specific public registries (e.g., real estate, automobile, industrial and intellectual property) that, at the request of a party or a judge, could provide information about a debtor’s assets registered therein.


Information available through judicial proceedings

34     Are there any proceedings allowing for the disclosure of information about an award debtor within your jurisdiction?

Article 323 of the FCP provides that a party may request certain preliminary measures to prepare its claim or defence, including, among other things, the sworn statement of the defendant regarding personal information without which the claim cannot be filed, and the submission of corporate documents by one of the shareholders.

Article 326 of the FCP regulates pretrial proceedings. The purpose of a pretrial proceeding is to obtain evidence before the initiation of the trial and is only admissible when there are justified reasons to believe that the production of evidence can become impossible, or very difficult, at the evidentiary phase of the trial. In a pretrial proceeding, a party may request (1) the witness statement of a person who is very old, seriously ill or about to leave the country, (2) a judicial inspection or expert opinions, (3) information from third parties and (4) the exhibition, securing or seizure of documents concerning the subject matter of the claim.

Enforcement proceedings


Attachable property

35     What kinds of assets can be attached within your jurisdiction?

As a general rule, any kind of asset (i.e., movable, immovable and intangible assets) can be attached within the limitations set forth by the FCP and the CCC. Immovable and movable property, shares and bank accounts are the assets most frequently attached.


Availability of interim measures

36     Are interim measures against assets available in your jurisdiction?

Various interim measures against assets are available, including attachment, seizure and inhibición general de bienes (i.e., a restraining order preventing a debtor from encumbering or selling its property). The FCP does not contain an exhaustive list of interim measures. The parties are entitled to request measures not regulated therein, provided their request is duly justified.

However, interim measures are usually requested before or during the procedure. At the enforcement stage, the attachment is of the essence and is the necessary previous step for the auction of goods.


Procedure for interim measures

37     What is the procedure to apply interim measures against assets in your jurisdiction?

As a general rule, interim measures are issued ex parte and their issuance is subject to the fulfilment of the following requirements: (1) periculum in mora (i.e., the well-founded risk that, pending issue of a ruling on the merits, the right that the interim measure seeks to safeguard may be irreparably harmed); (2) fumus boni juris (i.e., a prima facie case for the claim); and (3) sufficient guarantee. The debtor must be served within three days of the enforcement of the measure unless the debtor became aware of it as a result of the enforcement. The debtor can appeal the measure but the appeal does not suspend its effects.

However, the attachment is of the essence in enforcement proceedings and is the necessary step prior to the auction of goods. At the enforcement stage, the procedure varies.

If the award orders the payment of a certain amount of money, or of an amount that can be easily determined, and the debtor does not voluntarily comply with the award within the applicable time limits, the creditor may request the court to attach the assets of the debtor.

If the award orders the payment of an indeterminate amount of money, or of an amount that cannot be easily determined, the creditor may file a settlement calculation within 10 days of the award acquiring the authority of res judicata. If the creditor does not file a settlement calculation within 10 days, the debtor can do so. In any case, the other party will have five days to object or consent to the settlement. If there is disagreement, the court will determine the amount to be paid. Once the amount has been determined, the creditor may request the court to attach the assets of the debtor.

If the creditor wishes to avoid the attachment, it can request the court to order the debtor to pay the award, but if the debtor fails to pay within five days of notice, the creditor must request the attachment.

After the attachment of the assets, the debtor will have five days to furnish proof of any of the grounds for refusing enforcement, and the creditor will have five days to respond. If the court dismisses the debtor’s defence, it will order the auction of the assets attached. If the court accepts the debtor’s defence, it will lift the attachment.


Interim measures against immovable property

38     What is the procedure for interim measures against immovable property within your jurisdiction?

There is no specific procedure for interim measures against immovable property. The court will notify the public registry with which the asset is registered so that it takes note of the interim measure.


Interim measures against movable property

39     What is the procedure for interim measures against movable property within your jurisdiction?

There is no specific procedure for interim measures against movable property. The court will notify the public registry with which the asset is registered so that it takes note of the interim measure.


Interim measures against intangible property

40     What is the procedure for interim measures against intangible property within your jurisdiction?

There is no specific procedure for interim measures against intangible property. The court will notify the public registry with which the asset is registered so that it takes note of the interim measure.


Attachment proceedings

41     What is the procedure to attach assets in your jurisdiction?

As a general rule, interim measures are issued ex parte and their issuance is subject to the fulfilment of the following requirements: (1) periculum in mora (i.e., the well-founded risk that, pending issue of a ruling on the merits, the right that the interim measure seeks to safeguard may be irreparably harmed); (2) fumus boni juris (i.e., a prima facie case for the claim); and (3) furnishing of a guarantee. The debtor must be served within three days of the enforcement of the measure unless the debtor became aware of it as a result of the enforcement. The debtor can appeal the measure but the appeal does not stay its application

However, the attachment is of the essence in enforcement proceedings and is the necessary step prior to the auction of goods. At the enforcement stage, the procedure varies.

If the award orders the payment of a certain amount of money, or of an amount that can be easily determined, and the debtor does not voluntarily comply with the award within the applicable time limits, the creditor may request the court to attach the assets of the debtor.

If the award orders the payment of an indeterminate amount of money, or of an amount that cannot be easily determined, the creditor may file a settlement calculation within 10 days of the award acquiring the authority of res judicata. If the creditor does not file a settlement calculation within 10 days, the debtor can do so. In any case, the other party will have five days to object or consent to the settlement. If there is disagreement, the court will determine the amount to be paid. Once the amount has been determined, the creditor may request the court to attach the assets of the debtor.

If the creditor wishes to avoid the attachment, it can request the court to order the debtor to pay the award, but if the debtor fails to pay within five days of notice, the creditor must request the attachment.

After the attachment of the assets, the debtor will have five days to furnish proof of any of the grounds for refusing enforcement, and the creditor will have five days to respond. If the court dismisses the debtor’s defence, it will order the auction of the assets attached. If the court accepts the debtor’s defence, it will lift the attachment.


Attachment against immovable property

42     What is the procedure for enforcement measures against immovable property within your jurisdiction?

There is no specific procedure for the attachment of immovable property. The court will notify the public registry with which the asset is registered so that it takes note of the attachment.


Attachment against movable property

43     What is the procedure for enforcement measures against movable property within your jurisdiction?

There is no specific procedure for the attachment of movable property. The court will notify the public registry with which the asset is registered so that it takes note of the attachment.


Attachment against intangible property

44     What is the procedure for enforcement measures against intangible property within your jurisdiction?

There is no specific procedure for the attachment of intangible property. The court will notify the public registry with which the asset is registered so that it takes note of the attachment.


Attachments against bank accounts

45     Is it possible in your jurisdiction to attach bank accounts opened in a branch or subsidiary of a foreign bank located in your jurisdiction or abroad? Is it possible in your jurisdiction to attach the bank accounts opened in a branch or subsidiary of a domestic bank located abroad?

It is possible to attach bank accounts opened in a branch or subsidiary of a foreign bank located in Argentina. To do so, the party requesting the attachment must submit notice to the Central Bank after the judge has granted the attachment. If the notice contains all the formal requirements set forth by the Central Bank, the attachment order will be sent to the financial institution where the attached account is opened.

It is possible to attach bank accounts opened in a branch or subsidiary of a domestic bank located outside Argentina. To do so, a request must be sent through a letter rogatory to a court in the jurisdiction where the attached account is located.

Enforcement against foreign states


Applicable law

46     Are there any rules in your jurisdiction that specifically govern recognition and enforcement of arbitral awards against foreign states?

There are no specific rules governing the recognition and enforcement of arbitral awards against foreign states.


Availability of interim measures

47     May award creditors apply interim measures against assets owned by a sovereign state?

Unlike jurisdiction immunity, which is governed by Law 24,448, there is no domestic regulation on enforcement immunity. However, it is widely accepted that assets belonging to foreign states are immune from enforcement or interim measures unless they have validly waived that immunity, or the relevant assets are used exclusively for commercial purposes that do not entail the exercise of sovereign powers by the state. To proceed, the enforcement on those assets must not be prohibited by international treaties to which Argentina is a party (e.g., the 1961 Vienna Convention on Diplomatic Relations) or other applicable laws.

A foreign state may waive immunity from enforcement in Argentina, provided its waiver is expressly made. The Federal Supreme Court has stated that a waiver of a state’s jurisdiction immunity does not necessarily include a waiver of its enforcement immunity and that a specific waiver is needed.


Service of documents to a foreign state

48     What is the procedure for service of extrajudicial and judicial documents to a foreign state? Is it necessary to serve extrajudicial and judicial documents with a translation in the language of the foreign state?

There are no specific rules applicable to the service of documents to foreign states.


Immunity from enforcement

49     Are assets belonging to a foreign state immune from enforcement in your jurisdiction? Are there exceptions to immunity?

Unlike jurisdiction immunity, which is regulated in Law 24,448, there is no domestic regulation of enforcement immunity. However, it is widely accepted that assets belonging to foreign states are immune from enforcement unless they have validly waived that immunity, or the relevant assets are allocated exclusively for commercial purposes that do not entail the exercise of sovereign powers by the state. To proceed, the enforcement on the assets must not be prohibited by international treaties to which Argentina is a party (e.g., the 1961 Vienna Convention on Diplomatic Relations) or other applicable laws.


Waiver of immunity from enforcement

50     Is it possible for a foreign state to waive immunity from enforcement in your jurisdiction? What are the requirements of waiver?

A foreign state may waive immunity from enforcement in Argentina, provided its waiver is expressly made regarding immunity from enforcement. The Federal Supreme Court has stated that a waiver of a state’s jurisdiction immunity does not necessarily include a waiver of its enforcement immunity and that a specific waiver is needed after that (Fallos 330:5139).


Piercing the corporate veil and alter ego

51     Is it possible for a creditor of an award rendered against a foreign state to attach the assets held by an alter ego of the foreign state within your jurisdiction?

There are no specific rules on the assets held in Argentina by an alter ego of a foreign state. Furthermore, there are neither specific rules nor case law regarding the application of the frequently observed international standards on assets held by an alter ego of a foreign state; that is to say, among other things, tests on whether:

  • the government has primary responsibility for carrying out day-to-day operations of the entity;
  • the foreign state can appoint or remove board members;
  • the board members act as public servants; and
  • there is a principal–agent relationship between the alter ego and the foreign state.

However, as prescribed in Argentina’s private law statutes, under Section 54 of the General Companies Law, the corporate veil shall not be pierced unless the corporate entity is used (1) for an illegitimate purpose, (2) to circumvent the law or commit fraud, or (3) against the good faith principle or public policy.

There is case law establishing that the entity against whom enforcement is sought must be the one whose assets are attached, and that the corporate veil may not be pierced without an adversarial proceeding (Aguinda Salazar v. Chevron Corporation).


Notes

[1] José Martínez de Hoz and Francisco Amallo are founding partners of Martínez de Hoz & Rueda.

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