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Challenging and Enforcing Arbitration Awards 2019

Last verified on Friday 17th May 2019

Argentina

José Martínez de Hoz and Francisco A Amallo

    Applicable requirements as to form of arbitral awards

  1. 1.

    Must an award take any particular form (eg, in writing, signed, dated, place, the need for reasons, delivery)?

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

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

      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 are focused on domestic arbitration law exclusively.

      Domestic and international commercial arbitration are regulated separately. Therefore, the answers to most of the questions in this chapter may vary, depending on whether the arbitration is international or domestic. 

      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. 

      According to article 3 of the ICA Law, an arbitration is ‘international’ if (i) the parties to an arbitration agreement have, at the time of the conclusion of that agreement, their places of business in different states, or (ii) 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 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 (ie, the Autonomous City of Buenos Aires and of each province) regulate the procedural aspects of arbitration. Despite the existence of different procedural codes, reference will be made hereinafter mainly 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 (ie, arbitration agreements) are regulated by the Civil and Commercial Code (the CCC), which is applied by both federal and provincial judges 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 only states that if an arbitrator resists meeting with its co-arbitrators for deliberations or the preparation of the award, the same 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 and date in which it was rendered;
      • the name 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

  2. 2.

    Are there provisions governing modification, clarification or correction of an award?

    1. According to articles 93 to 97 of the ICA Law, applicable to international arbitrations, any party may request, within 30 days of receipt of the award, (i) to correct in the award any errors in computation, any clerical or typographical errors or any errors of a similar nature, (ii) to give an interpretation of a specific point or part of the award, and (iii) to make an additional award as to 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 make the additional award within 60 days of receipt of the request.

      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 (i) the correction of any material error, (ii) clarification of any vague or ambiguous expressions, provided that it does not entail a material modification of the decisions, and (iii) an additional decision as to 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. 

    Applicable procedural law for recognition and enforcement of arbitral awards

  3. 3.

    May an award be appealed to or set aside by the courts? If so, on what grounds and what procedures? What are the differences between appeals and applications for set-aside?

    1. Article 98 of the ICA Law sets forth that the only recourse to a court against an arbitral award issued in international arbitration is the 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 after 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 the arbitral award issued in a domestic arbitration vary depending on whether the arbitration is in law or 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. articles 760 and 761 of the FCP contain the grounds for setting aside: (i) an essential procedural violation; (ii) not rendering the award within the time limit; (iii) rendering the award on matters not submitted to arbitration; and (iv) inconsistent decisions in the dispositive part of the award.

      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 the application for setting aside is unwaivable, so, in practice, an appeal on the merits is the only remedy that could be waived by the parties. However, this has been attenuated by the Federal Supreme Court in the Cartellone case (Fallos 327:1881), in which it was concluded that any arbitral award is subject to judicial review when it might be considered ‘unconstitutional, illegal or unreasonable’. 

      Arbitration experts strongly criticised this decision and its scope remains unclear because the Federal Supreme Court has subsequently issued other rulings in which it acknowledged that, if the parties decided to waive their right to appeal the award, the only way of judicial review would be the application for setting aside contained in article 760 of the FCP. However, it cannot be concluded that the doctrine has been definitively reversed because, although the Federal Supreme Court has not again reviewed and reversed an arbitral award based on that doctrine, in some cases it has analysed whether its requirements were fulfilled.

      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 presents at least three problems. First, the paragraph refers to grounds for annulment that are invoked under the provisions of ‘this Code’ even though the CCC does not contemplate any grounds for setting aside arbitral awards. The intent was possibly to refer to the procedural codes that could apply to the case, which do establish specific grounds for setting aside 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 on the merits or the right to set aside the award. The FCP authorises the parties to waive their right to appeal but not the right to set aside the award. Some international treaties ratified by Argentina establish that the only recourse against the award is the application for setting aside. Therefore, consistently with the FCP and international treaties, article 1656 of the CCC should be interpreted to refer exclusively to the inability of waiving the right to set aside the award. 

      Third, article 1656 of the CCC refers to the challenge of final awards that are ‘contrary to law’, which is a very broad concept. If, as explained above, the CCC is interpreted in the sense that it refers to the inability of waiving the right to set aside the award, instead of referring to the right to appeal the award, then it could be interpreted that the CCC refers to the procedural law that is applicable to the case, which would normally be that of the seat of the arbitration. In other words, the parties could not waive their right to set aside an award that is invalid because it does not meet the validity requirements established by the applicable procedural law, but they could waive their right to appeal the award.

      The opposite interpretation (ie, that a final award may be appealed for being allegedly contrary to a legal provision) would not only be inconsistent with international treaties and the sources of inspiration of the arbitration dispositions of the CCC, but moreover with the main purpose of arbitration to displace disputes from the competence of the judicial courts, except for the review of final awards based on specific causes of annulment. 

      All the court rulings that have been published since the enactment of the CCC in connection with the last paragraph of article 1656 were favourable for arbitration. The courts have concluded that among the different interpretations of article 1656, the most suitable for arbitration was the one whereby only applications for setting aside are unwaivable (ie, that the waiver of the right to appeal is valid).  

      Some scholars have also stated that the last paragraph of article 1656 is not only poorly drafted but also unconstitutional because it refers to a procedural matter and the Federal Congress is not empowered to regulate matters for which the provinces are competent. However, there is no case law in this regard yet.

      Arbitration in equity

      Article 771 of the FCP establishes that the 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 from clarifying the point, the discussion arising in relation to article 1656 described above should not apply to arbitration in equity since said provision refers to legal challenges and amiables compositeurs are not required to apply the law. 

  4. 4.

    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?

    1. Argentina is a party to several treaties facilitating the recognition and enforcement of  arbitral awards (see question 1).

      In domestic law, the recognition and enforcement of foreign awards is governed by articles 102 to 106 of the ICA Law. 

      Domestic awards 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. 

  5. 5.

    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?

    1. 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 declared that: (i) 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; (ii) 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 (iii) the Convention will be interpreted in accordance with the principles and disposition of the Federal Constitution. 

    Recognition proceedings

  6. 6.

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

    1. Neither the ICA Law nor the FCP indicates which is the competent court to hear an application for recognition and enforcement of foreign or domestic arbitral 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 the application for recognition and enforcement of foreign court judgments must be filed with the competent first instance court. 

  7. 7.

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

    1. There is no provision regulating Argentina’s jurisdiction over an application for recognition and enforcement of foreign 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 domestic arbitrations do not have relevant connecting factors with other jurisdictions. 

  8. 8.

    Are the recognition proceedings in your jurisdiction adversarial or ex parte?

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

  9. 9.

    What documentation is required to obtain the recognition of an arbitral award?

    1. According to article 103 of the ICA Law, the party relying on a foreign 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.  

  10. 10.

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

    1. Article 103 of the ICA Law sets forth that if the foreign award is not made in Spanish, the court may request the party to supply a translation thereof in Spanish.

      Article 123 of the FCP also provides that all documentation in a language other than Spanish must be filed with a certified translation by a sworn translator.

  11. 11.

    What are the other practical requirements relating to recognition and enforcement of arbitral awards?

    1. According to Law 23,989, a party seeking the recognition and enforcement of an award must pay a court tax of 3 per cent of the monetary value of the award. If it does not have a monetary value or if the monetary value is undetermined, the party must pay 1,500 pesos and, in the latter case, must pay the balance once the proceeding is over and the value is determined. 

  12. 12.

    Do courts recognise and enforce partial or interim awards?

    1. 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, there is no case law in this regard.

  13. 13.

    What are the grounds on which an award may be refused recognition? Are the grounds applied by the courts different from the ones provided under article V of the Convention?

    1. The grounds for refusing the recognition and enforcement of foreign awards are listed in Article 104 of the ICA Law and are virtually identical to those contained in article V of the New York Convention. 

      There are only two differences, namely: (i) in addition to ‘incapacity’, the ICA Law includes ‘capacity restriction’ as grounds for refusal; and (ii) 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 contained in article 506 of the FCP, namely: (i) falsehood of the award; (ii) extinction of the obligation due to the lapse of a limitation period; (iii) payment of the award; and (iv) debt reduction, extension of the payment period or cancellation of the debt. The FCP establishes in article 507 that any opposition to the enforcement must be based on facts that occurred after the award and must be proved with trial records or documents issued by the creditor. No other means of evidence are accepted.

  14. 14.

    What is the effect of a decision recognising the award in your jurisdiction? Is it immediately enforceable? What challenges are available against a decision recognising an arbitral award in your jurisdiction?

    1. 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. 

  15. 15.

    What challenges are available against a decision refusing to recognise an arbitral award in your jurisdiction?

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

  16. 16.

    Will the courts adjourn the recognition or enforcement proceedings pending the outcome of annulment proceedings at the seat of the arbitration? What trends, if any, are suggested by recent decisions? What are the factors considered by courts to adjourn recognition or enforcement?

    1. 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, there is no case law in this regard. 

      The FCP is silent on this matter. However, under article 499 of the FCP, an award issued in a domestic arbitration will only be enforceable if it has res judicata authority. Therefore, a court should not enforce an award subject to set aside or suspension applications.

  17. 17.

    If the courts adjourn the recognition or enforcement proceedings pending the annulment proceedings, will the defendant to the recognition or enforcement proceedings be ordered to post security? What are the factors considered by courts to order security? Based on recent case law, what are the form and amount of the security to be posted by the party resisting enforcement?

    1. 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, there is no case law in this regard. 

      The FCP is silent on this matter. For the same reasons as discussed in question 16, a court should not proceed with the enforcement of the award nor order the posting of security. 

  18. 18.

    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? In case the award is set aside after the decision recognising the award has been issued, what challenges are available against this decision?

    1. Article 104(a)(v) of the ICA Law sets forth that a court may refuse to recognise or enforce a foreign 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.

      For the same reasons as discussed in question 16, a court should not enforce an award issued in a domestic arbitration and set aside at the seat. 

    Service

  19. 19.

    What is the applicable procedure for service of extrajudicial and judicial documents to a defendant in your jurisdiction?

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

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

      • the 1992 Las Leñas Protocol on Jurisdictional Cooperation and Assistance in Civil, Commercial, Labour and Administrative Law Matters;
      • the 1975 Inter-American Convention on Letters Rogatory;
      • the 1965 Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters;
      • the 1954 Hague Convention on Civil Procedure; and
      • the 1889 Montevideo Treaty on International Procedural Law. 
  20. 20.

    What is the applicable procedure for service of extrajudicial and judicial documents to a defendant out of your jurisdiction?

    1. 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 treaties listed in question 19 could also be applied to the service of documents out of Argentina.

    Identification of assets

  21. 21.

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

    1. There is no database or publicly available registry allowing the identification of all debtors’ assets, but there are specific public registries (eg, 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.

  22. 22.

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

    1. Article 323 of the FCP provides that a party may request certain preliminary measures to prepare its claim or defence, including, among others, 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 (i) the witness statement of a person who is very old, seriously ill or about to leave the country, (ii) a judicial inspection or expert opinions, (iii) information from third parties and (iv) the exhibition, securing or seizure of documents concerning the subject matter of the claim.

    Enforcement proceedings

  23. 23.

    Are interim measures against assets available in your jurisdiction? May award creditors apply such interim measures against assets owned by a sovereign state?

    1. There are different interim measures against assets available in Argentina, including attachment, seizure and inhibición general de bienes (ie, a restraining order preventing the debtor from encumbering or selling the 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.

  24. 24.

    What is the procedure to apply interim measures against assets in your jurisdiction? Is it a requirement to obtain prior court authorisation before applying interim measures? If yes, are such proceedings ex parte?

    1. 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 (ie, 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 (ie, 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, as explained in question 23, the attachment is of the essence in enforcement proceedings and is the necessary previous step for the auction of goods.  At the enforcement stage, the procedure varies. 

      If the award orders the payment of a certain amount 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 judge will 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 prove any of the grounds for refusing enforcement mentioned in question 13, and the creditor will have five days to answer. If the court dismisses the debtor’s defence, it will order the sale of the assets attached.

      If the award orders the payment of an uncertain amount or of an amount that cannot be easily determined, any of the parties can submit a settlement and the other party will have five days to answer. If there is disagreement, the court will determine the amount to be paid. Once the amount has been determined, the same procedure as discussed in the previous paragraph will be followed.

  25. 25.

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

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

  26. 26.

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

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

  27. 27.

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

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

  28. 28.

    What is the procedure to attach assets in your jurisdiction? Is it a requirement to obtain prior court authorisation before attaching assets? If yes, are such proceedings ex parte?

    1. See question 24.

  29. 29.

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

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

  30. 30.

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

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

  31. 31.

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

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

    Enforcement against foreign states

  32. 32.

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

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

  33. 33.

    What is the applicable procedure for service of extrajudicial and judicial documents to a foreign state?

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

  34. 34.

    Are assets belonging to a foreign state immune from enforcement in your jurisdiction? If yes, are there exceptions to such immunity?

    1. 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 exclusively allocated for commercial purposes that do not entail the exercise of sovereign powers by the state. To proceed, the enforcement upon such assets must not be prohibited by international treaties to which Argentina is a party (eg, the 1961  Vienna Convention on Diplomatic Relations) or other applicable laws.

  35. 35.

    Is it possible for a foreign state to waive immunity from enforcement in your jurisdiction? If yes, what are the requirements of such waiver?

    1. 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).

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GAR know-how provides reliable cross-jurisdictional insight to help cement the building blocks of international practice. In this section, select experienced practitioners answer commonly asked questions for key jurisdictions so allowing readers to be better-placed to solve the challenges of their working days.

Questions

    Applicable requirements as to form of arbitral awards

  1. 1.

    Must an award take any particular form (eg, in writing, signed, dated, place, the need for reasons, delivery)?


  2. Applicable procedural law for recourse against an award

  3. 2.

    Are there provisions governing modification, clarification or correction of an award?


  4. Applicable procedural law for recognition and enforcement of arbitral awards

  5. 3.

    May an award be appealed to or set aside by the courts? If so, on what grounds and what procedures? What are the differences between appeals and applications for set-aside?


  6. 4.

    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?


  7. 5.

    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?


  8. Recognition proceedings

  9. 6.

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


  10. 7.

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


  11. 8.

    Are the recognition proceedings in your jurisdiction adversarial or ex parte?


  12. 9.

    What documentation is required to obtain the recognition of an arbitral award?


  13. 10.

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


  14. 11.

    What are the other practical requirements relating to recognition and enforcement of arbitral awards?


  15. 12.

    Do courts recognise and enforce partial or interim awards?


  16. 13.

    What are the grounds on which an award may be refused recognition? Are the grounds applied by the courts different from the ones provided under article V of the Convention?


  17. 14.

    What is the effect of a decision recognising the award in your jurisdiction? Is it immediately enforceable? What challenges are available against a decision recognising an arbitral award in your jurisdiction?


  18. 15.

    What challenges are available against a decision refusing to recognise an arbitral award in your jurisdiction?


  19. 16.

    Will the courts adjourn the recognition or enforcement proceedings pending the outcome of annulment proceedings at the seat of the arbitration? What trends, if any, are suggested by recent decisions? What are the factors considered by courts to adjourn recognition or enforcement?


  20. 17.

    If the courts adjourn the recognition or enforcement proceedings pending the annulment proceedings, will the defendant to the recognition or enforcement proceedings be ordered to post security? What are the factors considered by courts to order security? Based on recent case law, what are the form and amount of the security to be posted by the party resisting enforcement?


  21. 18.

    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? In case the award is set aside after the decision recognising the award has been issued, what challenges are available against this decision?


  22. Service

  23. 19.

    What is the applicable procedure for service of extrajudicial and judicial documents to a defendant in your jurisdiction?


  24. 20.

    What is the applicable procedure for service of extrajudicial and judicial documents to a defendant out of your jurisdiction?


  25. Identification of assets

  26. 21.

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


  27. 22.

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


  28. Enforcement proceedings

  29. 23.

    Are interim measures against assets available in your jurisdiction? May award creditors apply such interim measures against assets owned by a sovereign state?


  30. 24.

    What is the procedure to apply interim measures against assets in your jurisdiction? Is it a requirement to obtain prior court authorisation before applying interim measures? If yes, are such proceedings ex parte?


  31. 25.

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


  32. 26.

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


  33. 27.

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


  34. 28.

    What is the procedure to attach assets in your jurisdiction? Is it a requirement to obtain prior court authorisation before attaching assets? If yes, are such proceedings ex parte?


  35. 29.

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


  36. 30.

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


  37. 31.

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


  38. Enforcement against foreign states

  39. 32.

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


  40. 33.

    What is the applicable procedure for service of extrajudicial and judicial documents to a foreign state?


  41. 34.

    Are assets belonging to a foreign state immune from enforcement in your jurisdiction? If yes, are there exceptions to such immunity?


  42. 35.

    Is it possible for a foreign state to waive immunity from enforcement in your jurisdiction? If yes, what are the requirements of such waiver?