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2 Buenos Aires

Alejandro M Garro, Michael Fernández

From: Choice of Venue in International Arbitration

Edited By: Michael Ostrove, Claudia Salomon, Bette Shifman

Content type:
Book content
Product:
International Commercial Arbitration [ICMA]
Published in print:
09 January 2014
ISBN:
9780199655717

From: Oxford Legal Research Library (http://olrl.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved. Subscriber: null; date: 06 June 2023

Subject(s):
Arbitral rules — Conduct of proceedings — Good faith — Place of arbitration

(p. 45) 2  Buenos Aires

2.1  Background

2.1.1  History and development of arbitration in Argentina

2.01  Argentine law has long recognized alternative dispute resolution as a means of resolving disagreements.1 However, Argentina’s approach to arbitration has been and remains somewhat (p. 46) ambivalent, due in large measure to contradictory and conflicting court decisions, but also because Argentina still lacks a modern statutory framework governing domestic and international commercial arbitration.2

2.1.2  Sources of arbitration law

2.02  Argentine internal arbitration law does not distinguish, by and large, between domestic and international commercial arbitration. The core provisions governing civil and arbitration proceedings before federal courts are found in articles 736–773 of the National (Federal) Code of Civil and Commercial Procedure (NCP).3 Articles 517–519bis of the NCP, applicable to the enforcement of foreign judgments, also apply, by way of analogy, to the enforcement of foreign arbitral awards.

2.03  Argentina is a federation in which each province retains legislative jurisdiction to adopt its own rules of procedure.4 To the extent that much of arbitration law is of a procedural nature, each of the Argentine provinces thus has its own rules applicable to arbitration proceedings conducted within its territorial boundaries. According to the supremacy clause of the Argentine Constitution, however, the rules found in the provincial rules of procedure are pre-empted in the international context by those found in international treaties and the federal rules of the NCP.5

2.04  Of the various multilateral treaties governing international commercial arbitration that Argentina has ratified, the most important are the 1958 United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention),6 and the 1975 Inter-American Convention on International Commercial Arbitration (Panama Convention).7 Other international treaties of occasional relevance include the 1889 and 1940 Montevideo Treaties on Civil Procedure;8 the 1979 Inter-American Convention on the Extraterritorial Efficacy of Foreign Judgments and Arbitral Awards (1979 Montevideo Foreign Judgments Convention);9 the 1992 Mercosur Protocol on International (p. 47) Jurisdictional Cooperation and Assistance in Civil, Commercial, Labor and Administrative Law Matters (Las Leñas Protocol);10 the 1994 Mercosur Protocol on International Jurisdiction in Contractual Matters;11 and the 1998 Mercosur International Commercial Arbitration Agreement (Mercosur Arbitration Agreement).12

2.05  If an arbitration proceeding involves the Republic of Argentina, or any of its centralized agencies or instrumentalities, the 1965 Washington Convention on the Settlement of Investment Disputes (ICISID Convention or Washington Convention) may be of relevance.13 Other laws of potential relevance to arbitration proceedings include statutes authorizing the Argentine government to submit international loan disputes to arbitration,14 a decree-law regulating commodities arbitration,15 and several provisions regulating the arbitration of consumer disputes.16 Many of the Argentine arbitration institutions also have their own internal statutes setting out procedural rules for arbitration proceedings conducted under their auspices. The Bolsa de Comercio de Buenos Aires17 and the Cámara Arbitral de la Bolsa de Cereales de Buenos Aires18 are among the more well-known arbitral institutions with their own arbitration rules.

2.1.3  De jure and ex aequo et bono arbitration

2.06  Depending on the substantive rules applicable to the merits of the dispute, the NCP distinguishes between arbitration at law (de jure arbitration) and equitable arbitration (amigable (p. 48) composición). Both forms of arbitration share the same rules in terms of the capacity of the parties to arbitrate, the substance and form of submissions, the qualifications of arbitrators, the rules for their appointment, acceptance of appointment and replacement, and quorum and rules to be applied in making the award. However, arbitrators de jure are required to reach a decision based on the law applicable to that arbitration, while arbitrators ex aequo et bono (amigables componedores or árbitros arbitradores) must settle the dispute on the basis of principles of fairness and equity (según su ciencia y conciencia). In a major departure from most modern arbitration statutes, article 766(2) of the NCP provides that if the parties do not indicate the nature of the arbitration proceeding, or if the arbitrators have been authorized to decide the dispute according to equity, the arbitrators shall decide as amigables componedores.19

2.1.4  Formal distinction between pre-dispute and post-dispute arbitration agreements

2.07  The parties may agree to submit future disputes to arbitration by means of an arbitration clause (cláusula compromisoria) or may conclude an arbitration submission (compromiso arbitral) in order to submit to arbitration a dispute that has already arisen. The cláusula compromisoria can take the form of a clause within a contract, or an independent instrument by which the parties indicate that future disputes will be submitted to arbitration.20 The compromiso arbitral, which is the only type of arbitration agreement formally recognized in the NCP, must ‘bear the form of a public deed or a private instrument, or of a minute executed before the court or judicial tribunal that would entertain jurisdiction over the case if it were not brought to arbitration’.21

2.08  If the parties have agreed to an ad hoc arbitration under the rules of the NCP, even if there is an applicable arbitration clause, it is advisable to conclude an arbitral submission (compromiso arbitral) that includes, under penalty of nullity, the date, name and address of the parties and of the arbitrators, a statement of the issues submitted to arbitration, and the underlying circumstances of the dispute, as well as the amount of the fine that shall be paid by a party who does not comply with the acts necessary for the fulfilment of the arbitration agreement.22 Further information, such as the applicable arbitration rules, place of arbitration, and language, may also be included. If the parties have agreed to institutional arbitration, they will not be required to execute a compromiso arbitral, and the relevant provisions of the institution’s rules will apply.23

(p. 49) 2.1.5  Judicial attitudes towards arbitration

2.09  While many Argentine court decisions fail to demonstrate a clearly favourable attitude towards arbitration,24 others have been very supportive.25 Even where the courts have upheld an arbitration agreement or enforced an arbitral award, however, language can sometimes be found to the effect that arbitration agreements should be construed narrowly.26

2.10  A 2004 decision of the Supreme Court of Argentina, José Cartellone Construcciones Civiles SA v Hidroeléctrica Norpatagónica SA o HIDRONOR SA (Cartellone),27 alarmingly suggests that Argentine courts may be entitled to scrutinize awards at the enforcement stage on grounds of ‘reasonableness’.28 Referring to more recent decisions such as Mobil v Gasnor,29 some legal commentators suggest that the judicial hostility towards arbitration evidenced in Cartellone has since been discarded.30 Whether Cartellone is still ‘good law’, however, remains to be seen, particularly in cases in which the Argentine government is a party to arbitration proceedings.31

2.1.6  Recent developments and anticipated changes

2.11  Commentators have long argued that Argentina’s arbitration legislation should be replaced with a new and modern arbitration law.32 Indeed, it would be a positive step for Argentina (p. 50) to adopt a modern federal arbitration statute in line with the UNCITRAL Model Law on International Commercial Arbitration.33 During the last two decades, several efforts to reform the legal regime governing arbitration have been elaborated and submitted to Congress. The latest reform efforts can be found in the provisions on the arbitration agreement set forth in a draft civil and commercial code recently submitted to Congress (2012 Draft Civil and Commercial Code).34 This draft is intended to replace the Argentine Civil Code of 1872 and it includes for the first time an entire chapter dedicated to arbitration agreements.35 At the time of writing, however, none of them has been successful.36

2.12  The draft provisions on arbitration in the 2012 Draft Civil and Commercial Code would introduce several positive changes.37 For example, if the parties do not stipulate whether the arbitration is to be de jure or ex aequo et bono, the default rule provides that the arbitration shall be de jure.38 While the current legislation does not specify the default number of arbitrators in cases in which the parties fail to agree, the draft indicates that the default number of arbitrators will be three.39 Also, the draft expressly provides that the existence of an arbitration agreement excludes the jurisdiction of the courts.40 Although this distinction between arbitral and judicial jurisdiction is already obtained under the New York Convention,41 such a basic rule would be introduced for the first time in Argentine domestic law on arbitration. Be that as it may, the arbitration provisions included in the 2012 Draft Civil and Commercial Code fall short of the type of federal arbitration law regulating all procedural and substantive aspects of arbitration that would facilitate the use of arbitration in Argentina as a more readily accessible method of dispute resolution.

2.13  In large measure, Argentina’s hostility to arbitration can be attributed to the economic crisis of the 1990s. Broad deregulation of the economy during the 1990s was followed by a flow of foreign investment under the umbrella of bilateral investment treaties (BITs). Most of the BITs gave foreign investors the chance to submit disputes to ICSID arbitration. The convertibility crisis gave rise—among other no less dramatic economic and institutional changes—to a flood of investment arbitration cases against Argentina, most of which pitted the investors’ property rights against the state’s regulatory powers. The proliferation of investment arbitration disputes in which Argentina was a losing respondent raised suspicions that arbitration tribunals nurtured an imperialistic bias against Argentina, tainting (p. 51) the perception of arbitration in Argentina as a pro-capitalist and anti-Argentine conspiracy of greedy British, French, Spanish, and US-based multinationals. This negative image of arbitration has had an unfavourable impact in Argentina on the eventual expansion of arbitration as a successful alternative method of dispute resolution.

2.1.7  Comparison with other regional or national venues

2.14  Argentina, together with Uruguay, is one of the few Latin American countries without a modern arbitration law, the main provisions on arbitration remaining incorporated in a code of civil and commercial procedure. In contrast Chile, Costa Rica, the Dominican Republic, Guatemala, Honduras, Mexico, Nicaragua, Paraguay, Peru, and Venezuela, as reported on the UNCITRAL website in November 2012, have enacted modern arbitration legislation based on the UNCITRAL Model Law. Other Latin American jurisdictions, such as Brazil in 1996, have enacted arbitration legislation consistent with the UNCITRAL Model Law.

2.15  Argentina lags behind other Latin American arbitration venues because it lacks a consistent and predictable line of decisions ensuring the cooperation of national courts. Although Argentine court decisions on arbitration are varied and conflicting, without a consistent jurisprudential bias in favour of arbitration, Buenos Aires remains an attractive and well-connected city, with all the logistical facilities necessary for the conduct of arbitral proceedings.

2.2  Commencing the Arbitration

2.2.1  Court assistance in commencing arbitration

2.16  The main policy on ‘arbitrability’, understood as the type of disputes susceptible to be settled by arbitration, is incorporated into article 737 of the NCP, which provides that ‘matters not capable of settlement cannot be submitted to arbitration’.42 The exclusion generally comprises family law questions and rights and obligations, which cannot be the object or subject matter of a contract, as well as property rights that are ‘out of commerce’.43 Whether a given subject matter is susceptible of being submitted to arbitration is an issue that may be decided by the arbitral tribunal or, at the request of a party and in the ultimate instance, by a court of law, either at the seat of arbitration or at the place where the resulting award is to be enforced. Whether arbitrability presents an issue of admissibility or whether it touches upon the jurisdiction of the arbitration tribunal is a question that has not been expressly addressed by statute or settled by the courts.44

2.17  Arbitration proceedings may be triggered as long as there is an arbitration agreement that is enforceable prima facie. If a party brings a suit before a court despite the existence of a prima (p. 52) facie enforceable arbitration agreement, the national courts of state parties to the New York Convention must decline jurisdiction and refer the parties to arbitration.45 The court must serve the summons and complaint on the other party, who may challenge the court’s jurisdiction. Pursuant to Article II(3) of the New York Convention, the court must dismiss the case and refer the parties to arbitration. Under Argentine law, the right to submit the dispute to arbitration would be deemed waived if the challenge to the court’s jurisdiction was not brought at the first opportunity.46 Aside from the application of the New York Convention, the parties are bound by the arbitration agreement under general contract law, so in the presence of a dispute the subject matter of which is the subject of an arbitration agreement, the court will decline jurisdiction and refer the parties to arbitration.

2.18  Article 742 of the NCP outlines the steps that a party must follow, unless they agree otherwise, to initiate arbitral proceedings. This provision also addresses the role of the courts in deciding disputes between the parties regarding the existence and scope of an arbitral clause.47 In order to start an arbitration, the claimant may file the claim or request arbitration before the court that would have been competent if the parties had not agreed to submit the dispute to arbitration. The court will notify the respondent and set a date for a hearing at which the parties will draw up and execute the compromiso arbitral, proceeding with the appointment of the arbitrators. This procedure is unlikely to be followed in international commercial arbitration, in which the parties generally agree to a speedier procedure to commence arbitration, serving the respondent directly without the need of court intervention.

2.19  Even if there is a prima facie enforceable arbitration clause, however, one of the parties may fail to cooperate with the establishment of the arbitral tribunal by refusing to execute a compromiso arbitral. In such a case, the other party may request the competent court, ie the court that would have decided the dispute in the absence of the arbitration agreement, to conclude the arbitration submission on behalf of the defaulting party.48 Where the parties have concluded a compromiso but disagree as to its content, the courts may also intervene for the purpose of determining the substance of the compromiso, thus supporting the commencement of the arbitration and making it viable.49

(p. 53) 2.20  Once a notice of arbitration has been submitted, the parties may need assistance if they are unable to agree on the constitution of the tribunal. Whether the courts should assist in the establishment of an arbitral tribunal and how is generally regarded as a matter of law.50 Upon a party’s request for assistance, Argentine courts will consider, among other things: (1) whether a valid arbitration clause exists between the parties; (2) whether the subject matter of the controversy is susceptible of being settled by arbitration; and (3) whether the matter under dispute falls within the scope of the arbitration clause.51 If the court finds that these requirements are met, the arbitration may go forward without further interference from the Argentine courts. The involvement of the courts may be avoided, as noted before, by agreeing that the notice of arbitration may be served directly on the respondent, in which case the compromiso could be drawn up in the form of Terms of Reference under the ICC Rules, if necessary, or any other form. Such a spirit of cooperation, however, is not always forthcoming. At times, Argentine courts have unduly interfered with on-going arbitration proceedings. In Compañía Naviera Pérez Companc y otros v Ecofisa y otros,52 for example, the National Court of Commercial Appeals ordered a trial judge to resolve a dispute pursuant to terms of reference outlined by the court itself, failing to relegate this to the arbitral institution to which the parties had entrusted the conduct of the arbitration.53 Argentine courts have also intervened at times in order to frame the terms of a dispute submitted to arbitration and for the alleged purpose of addressing matters of public policy inviting the invalidation of the resulting arbitral award.54

2.21  Other gateway issues, in the form of procedural requirements, have also led to the intervention of Argentine courts. For example, in a case in which the arbitration agreement provided that the dispute must be submitted to arbitration within a given time period, the court intervened in order to determine whether that period of time had elapsed.55 In a case in which the notice of arbitration was filed after the end of the stipulated time period, it was held that a party which files a notice of arbitration after a time limit has expired is deemed to have waived its right to submit the dispute to arbitration.56

2.2.2  Interim measures of protection

2.22  Most arbitration rules specifically empower the arbitrators to award preliminary relief,57 yet Argentine law does not give arbitrators express authority to grant such relief.58 More recent (p. 54) case law has recognized the power of an arbitral tribunal to grant an injunction59 or order the attachment of property,60 but the issue remained controversial for some time. Argentine case law recognizes the prerogative of a party to bypass an arbitral tribunal while seeking interim relief if the parties’ agreement expressly permits it to do so.61 Such relief is likely to be available, however, even in the absence of an express provision in the arbitration agreement.

2.23  Admittedly, because arbitrators lack imperium or the power to enforce interim measures, court intervention is necessary if the party against whom the measure has been granted refuses to abide by the tribunal’s order. Courts enforcing interim measures ordered by an arbitral tribunal are not expected to review the basis of the order. Parties may of course bypass the arbitration tribunal and resort directly to the courts in order to request interim or preliminary measures.

2.24  Regarding the enforcement of orders for interim relief issued by arbitration tribunals sitting abroad, the National Court of Commercial Appeals has refused to enforce such an order, on the ground that international arbitration treaties binding on Argentina provide for the recognition and enforcement of arbitral awards that are final, as opposed to an order granting interim relief, which is intrinsically temporary. The Court also mentioned the absence of express authorization in the arbitration agreement for the tribunal to grant such provisional injunctive relief.62

2.2.3  The role of courts in the appointment of arbitrators

2.25  The parties may appoint the arbitrators pursuant to the terms of the arbitration agreement or the rules of the arbitral institution designated by the parties.63 Special care should be taken in the selection of the institution that the parties wish to administer the arbitration. In a case in which the parties mistakenly provided for an arbitral institution that turned out not to exist, the parties were held to have lost their right to submit the dispute to arbitration, and the otherwise competent court assumed jurisdiction over the case.64

2.26  In the event that the parties have not agreed on a specific procedure, or if they are unable to come to an agreement in an ad hoc arbitration, the arbitrators (both de jure arbitrators and amigables componedores), will be appointed by the court that would have heard the case if the parties had not agreed to submit the dispute to arbitration.65 Also in the context of ad hoc (p. 55) arbitration, the death of an arbitrator will not preclude a party from seeking arbitration as long as the deceased arbitrator’s involvement was not a condition precedent to submitting the dispute to arbitration.66 Similarly, it has been held that the resignation of an arbitrator does not preclude the appointment of a replacement arbitrator to carry on the proceedings to termination.67 If a replacement arbitrator takes over, however, there is no statutory provision specifying whether the newly reconstituted arbitral tribunal would have to repeat any previously held hearings. Although many arbitration rules establish criteria for determining when the arbitration may carry on and when it must go back to an earlier stage, the NPC does not contemplate this situation.

2.2.4  The role of courts in resolving jurisdictional questions

2.27  Although Argentine law does not have a specific provision addressing the power of arbitrators to rule on their own jurisdiction, there is a consistent line of decisions, including pronouncements of the Supreme Court of Argentina, giving effect to the principle of competence-competence.68 Some judicial decisions, however, have declined to recognize that the arbitral tribunal has such power.69 In the light of these conflicting decisions, it seems advisable to incorporate into the arbitration agreement a clause providing expressly for the power of the arbitrators to decide on their own jurisdiction.70 In Reef Explorations Inc v Cía General de Combustibles, a panel of the National Commercial Court of Appeals upheld an arbitral tribunal’s finding that it had jurisdiction, rejecting a conflicting decision of another panel of the same court of appeals that had raised questions about the arbitral tribunal’s power to rule on its competence.71

2.28  Once an arbitral tribunal upholds its jurisdiction, the jurisdictional ruling may be challenged before the courts, which may stay the arbitration until the jurisdiction of the arbitration tribunal is sustained or overruled. Alternatively, a court may decline to take the case, referring the parties to arbitration or, conversely, the court may disagree with the arbitral tribunal and insist that the matter should be settled in court. In cases of conflict between arbitral and (p. 56) judicial jurisdiction, where an arbitral tribunal determines that it has jurisdiction and the court disagrees, or vice versa, there is no statute providing for a stay of the arbitral proceedings before either forum. The arbitral tribunal may stay the arbitration while a party brings a jurisdictional challenge or, alternatively, it may decide to go ahead with the arbitration while the challenge remains pending before the courts.72 The final say on jurisdiction belongs to the courts. In the absence of a higher court to put an end to eventual jurisdictional conflicts, it falls to the Supreme Court of Argentina to decide the issue. The intervention of the Supreme Court may be triggered by one of the parties to the case,73 or by the court or arbitral tribunal whose jurisdiction is being challenged.74

2.29  Argentine case law recognizes the negative application of the principle of competence-competence.75 If an action is filed in court with regard to a dispute subject to an arbitration agreement, the party interested in pursuing arbitration may challenge the court’s jurisdiction, requesting that the matter be referred to arbitration.76 It has been held that the right to submit a dispute to arbitration is deemed to have been waived by a party that fails to raise a timely challenge to the court’s jurisdiction.77

2.30  It bears repeating that Argentine courts have not given a clear message as to the standard to be applied with respect to the scope and breadth of arbitration clauses. While some courts have chosen to construe clauses broadly,78 others have followed the more traditional approach of interpreting arbitration clauses narrowly.79 A court will of course refuse to decline jurisdiction or to refer a matter to arbitration if finds that the subject matter of the dispute is not susceptible of being settled by arbitration.80 Arbitral jurisdiction may also have to yield in cases where the dispute encompasses both arbitrable and non-arbitrable questions.81

2.31  There is no provision of Argentine law expressly addressing the issue of the separability or autonomy of the arbitration clause.82 However, this principle has been established in the 1998 Mercosur International Commercial Arbitration Agreement (Article 7), in the 1958 New York Convention (Article II(3)), and in the 1980 Vienna Convention on Contracts for (p. 57) the International Sale of Goods (Article 8(1)), all of which have been ratified by Argentina. The courts in Argentina have not, however, been consistent in applying this principle; some cases have recognized it83 while others have not.84 Recent decisions have enhanced the autonomy of the arbitration agreement. For example, the decision in Smit International Argentina SA v Puerto Mariel SA affirmed the doctrine of separability of the arbitration agreement, reasoning that the termination of a charter agreement did not affect the validity and effectiveness of an arbitration clause incorporated into the main contract. The court acknowledged that although the separability principle had not been incorporated in Argentine rules on arbitration, yet its application was warranted due to its worldwide acceptance in international conventions to which Argentina was a party and the scholarly support it enjoys.

2.2.5  The role of courts in enjoining arbitration

2.32  Although Argentine law does not include a specific provision empowering courts to enjoin arbitration proceedings, the courts have resorted to this type of injunction on more than one occasion, especially in cases in which the government, or a government instrumentality, was involved in the arbitration.

2.33  In a case involving Entidad Binacional Yacyretá,85 a bi-national state entity, Yacyretá sought an injunction against continuing arbitral proceedings in Buenos Aires under the ICC Arbitration Rules at the same time as an Argentine court was considering a challenge to the arbitrators and the terms of reference they had drafted. The recusal of the members of the arbitral tribunal was brought before the Argentine courts after the ICC Court of Arbitration rejected the challenge without disclosing its reasons. Yacyretá’s request before the Argentine courts rested on allegations that the arbitral tribunal had: (1) disregarded Yacyretá’s suggestions for changes in the terms of reference; (2) issued a procedural order announcing that the terms of reference would be sent to the International Chamber of Commerce for approval even if not signed by both parties; and (3) demonstrated its bias against Yacyretá by issuing this procedural order before an Argentine court could rule on Yacyretá’s recusal motion. The court observed that the fact that arbitration was administered by an institution did not exempt the arbitral tribunal from its duty to provide the parties with equal treatment and due process, and ordered a stay of the arbitration proceedings based on the behaviour of the arbitrators and the lack of explanation for the ICC Court’s decision to reject Yacyretá’s recusal motion. The justification for the injunction was the absence of a reasoned decision, which the Argentine court regarded as a ground for vacating the ICC ruling, thus the need to prevent the eventual annulment of the award and unnecessary expenditures on the parties. The arbitration did not proceed after the court decision.

(p. 58) 2.34  In National Grid,86 an investment arbitration governed by the UNCITRAL Rules, in which the arbitral tribunal sat in Washington, DC, the respondent—the Argentine government—sought to set aside a ruling by the ICC Court, acting as appointing authority, which rejected Argentina’s challenge against an arbitrator without disclosing reasons. The court ordered the arbitration stayed, which the arbitral tribunal chose to disregard, because it refused to acknowledge the jurisdiction of the Argentine courts over arbitration proceedings conducted in Washington DC.87

2.35  Yacyretá and National Grid are the only reported cases in which the courts decided to enjoin arbitration proceedings. In both cases the Argentine government was a party to the proceedings and in both cases the injunction was granted in favour of the government. It is neither common nor customary in Argentina to issue unreasoned awards, and ICC decisions dismissing or confirming a challenge do not disclose the reasons behind the decision. Both cases, Yacyretá and National Grid, suggest that unreasoned awards and decisions, even though the parties agreed to abide by them, face an uncertain outcome before Argentine courts.

2.3  During the Arbitration

2.3.1  The role of courts in challenges to arbitrators

2.36  The two basic principles used by the courts to resolve challenges to would be arbitrators are that arbitrators may not be recused without cause and can be removed by agreement of the parties or a court decision. Party-appointed arbitrators may be recused only on grounds arising after their nomination, regardless of the party appointing them. However, there are basic statutory grounds for challenging arbitrators, which vary depending on whether the challenge is brought against arbitrators de jure as opposed to equity arbitrators or amigables componedores.

2.37  De jure arbitrators may be challenged on the same grounds applicable to the recusal of judges,88 which include broad and clearly defined conflicts of interest, such as being related to any of the parties, sharing with the parties or their lawyers an interest in the dispute or in a business enterprise in which any of the parties or lawyers have an interest, participating in a pending lawsuit in which one of the parties is involved, or being a creditor or debtor of either party.89 The grounds for challenging amigables componedores include having a direct or indirect interest in the matter; being related to one of the parties; and/or a manifest enmity with the parties on account of any specific incidents.90 In addition, an arbitrator may be removed in accordance with the rules of an arbitral institution.

(p. 59) 2.38  Any challenge to an arbitrator must be filed before the arbitral tribunal itself, but if the recused arbitrator refuses to step down, the challenge must be referred to the court that would have had jurisdiction over the dispute if it had not been submitted to arbitration. The arbitration is stayed until the challenge is decided.91

2.3.2  The role of courts in compelling testimony/evidence

Rules applicable to the taking of evidence

2.39  The parties are free to choose the rules of procedure, including rules of evidence, applicable to the arbitration, but in the absence of the parties’ agreement the arbitral tribunal must follow the procedural rules applicable to ‘ordinary [judicial] proceedings’ (proceso ordinario) or a more abbreviated procedure (juicio sumario), depending on the amount of material before the court and the complexity of the dispute.92 Amigables componedores, in contrast, are free to select the rules of procedure they deem most suitable to the dispute.93

Admissibility and weight of evidence

2.40  The arbitral tribunal enjoys broad powers to decide on the admissibility and weight of evidence, as well as the time, manner, and form in which evidence will be presented. It is only in the absence of the parties’ agreement that ordinary rules of procedure are to be followed. Each party is bound to produce evidence in support of its own claims and defences.94 If a substantive rule does not given any indication as to the party bearing the burden of producing evidential proof, the burden is most likely to fall on the party in the best position to have control and access to (p. 60) such evidence.95 Arbitrators enjoy wide discretion to determine the standard, weight, and sufficiency of the evidence.

Compulsory production of evidence

2.41  If a party refuses to produce evidence, the arbitral tribunal must seek assistance from the courts, because the arbitration tribunal lacks the power to enforce compulsory measures. Argentine courts are expected to cooperate with arbitral tribunals to ensure that the arbitral process is carried out in the most rapid, effective, and practical manner.96 Article 753 of the NCP provides that: ‘Arbitators must address themselves to the courts for the compulsory summoning of witnesses and for obtaining an order for the forwarding of documentary pieces of evidence.’97 Although there is no express provision allowing a party to seek judicial assistance from a court, such assistance is forthcoming and generally provided by the court of the seat of arbitration.

2.3.3  Requirements regarding the ability of foreign practitioners to appear as counsel or arbitrator

2.42  At least in principle, only lawyers admitted to the Buenos Aires bar may appear and submit filings before courts sitting in the federal district of the City of Buenos Aires. However, the only express requirements found in the NPC regarding the ability of foreign practitioners to serve as arbitrators are that de jure arbitrators and amigable componedores must be of age and fully able to exercise their civil rights.98 There is no requirement that arbitrators be Argentine citizens or residents, and the rules of civil and commercial procedure do not expressly preclude foreign practitioners from serving as arbitrators.99 Despite this, some courts have held that only lawyers are allowed to be de jure arbitrators.100 Legal commentators believe that this requirement lacks a sound legal foundation and does not, in any event, seem to apply to international arbitration proceedings.101 Foreign practitioners are not precluded from serving as counsel, and there are no reported cases regarding the ability of foreign lawyers to represent a client in arbitral proceedings taking place in Argentina.102 As a practical matter, it is advisable to retain local counsel if court intervention becomes necessary.

2.3.4  Local requirements for the conduct of arbitration hearings

Oaths

2.43  Prior to the commencement of any arbitration proceedings, arbitrators and amigables componedores must be sworn in before the clerk of an Argentine court. There are judicial decisions acknowledging the right of the parties to waive the requirement that an amigable componedor(p. 61) (or árbitro arbitrador, as equity arbitrators are also called) be sworn,103 but no federal case has created such an exception for de jure arbitrators.

2.44  The arbitral tribunal is empowered to swear in witnesses of fact and experts, informing them of the potential criminal consequences of making false statements. Perjury before an arbitral tribunal has been held not to constitute a criminal offence subject to prosecution.104 This questionable decision105 was rendered on the ground that an arbitral tribunal does not qualify as a ‘competent authority’ under article 275 of the Criminal Code of Argentina.106

Discretion to control the evidence and the evidentiary hearing

2.45  Arbitrators have broad discretion to decide the relevance, admissibility, materiality, and weight of evidence, and to control the conduct of the hearing. To the extent that the provisions of the NCP are applicable, an oral evidentiary hearing will take place in order to examine factual or expert witnesses.107 There are no cases in point to indicate whether the parties can waive their right to a hearing, proceeding with the arbitration on the basis of documentary evidence alone.

2.46  The parties are not allowed to appear as witnesses, and their spouses and relatives are similarly excluded.108 The arbitral tribunal may appoint an expert on its own motion or at the request of one of the parties.109 Each party is also entitled to present its own party-appointed expert.110

Liability of arbitrators

2.47  Argentine law allows for the imposition of civil liability on de jure arbitrators and amigables componedores. Specifically, the NCP imposes liability for damages for failing to issue the award within the appropriate time limit. In evaluating whether an arbitrator or amiable compositeur is to be held liable for failing at his task, Argentine courts require circumstances reflecting negligence or bad faith.111

2.48  Argentine law also allows for the imposition of criminal liability on de jure arbitrators and amigables componedores. Article 269 of the Criminal Code imposes a fine on an arbitrator who does not rule in accordance with the law agreed to by the parties or who relies on false (p. 62) evidence. More significantly, article 265 of the Criminal Code imposes a prison term on an arbitrator who engages in self-dealing.

2.4  The Award

2.4.1  Time limit to render the award

2.49  If the parties have agreed to de jure arbitration, the arbitrators are required to render an award within the time designated in the arbitration agreement. In the absence of agreement by the parties, the court may fix such time period. Holidays are not counted for the purpose of determining whether an award has been rendered within the specified time.112

2.50  If the parties have agreed to equity arbitration, and unless the parties agree otherwise, the amigables componedores must render an award within three months. Courts will not interfere with the fixing of a time period in cases where the arbitration is being conducted under the auspices of an arbitration institution whose rules provide for extending the period of time that a tribunal has to render an award.113 It is the principle of party autonomy and the absence of a mandatory time period that allows the parties to extend it by will.

2.4.2  Mandatory rules as to form

2.51  Articles 754114 and 757115 of the NCP set out the requirements that both de jure arbitrators and amigables componedores must follow in order to render a valid arbitral award. Thus, an arbitral award must address all of the issues submitted for decision,116 including all ancillary matters such as fees and other costs arising from the proceedings. Awards must be rendered within the established deadline and be properly reasoned both in fact and in law.117 The award must be made in writing, and state the place and date of its issuance.118

(p. 63) 2.52  In order for an award to be valid and enforceable, it must be signed by a majority of the arbitrators and, if a majority decision cannot be reached on one or more issues, a new arbitrator must be appointed.119 The majority of arbitrators must rule on those issues on which consensus can be reached, leaving the undecided ones to be ruled on by the arbitral tribunal constituted with the newly-appointed arbitrator.120 Dissenting opinions are allowed and must be signed and delivered to the parties as an annex to the award.121

2.4.3  Mandatory rules as to substance

Damages and interest

2.53  Punitive or exemplary damages are not allowed under Argentine law,122 except in very specific situations under the Consumer Protection Act.123 Arbitrators may award interest but, unless the parties agree otherwise, compound interest is not allowed.124

Costs

2.54  The parties are free to agree in advance, whether in an arbitration clause or in the compromiso, on the amount of costs and how these should be allocated. The term ‘costs’ includes not only the fees of the arbitrators and the arbitral institution, but also the parties’ costs for legal representation (ie attorneys’ fees). The arbitral tribunal will decide this issue in the absence of agreement by the parties. In principle, the rules applicable to the assessment and allocation of costs incurred in court proceedings apply equally to arbitration proceedings,125 the general rule being that the losing party bears the costs of the successful party.126 If an award is subject to appeal, the court will determine the costs of the arbitration without sending the case back to the arbitral tribunal.127

Arbitrators’ fees

2.55  There is no specific legal provision addressing the level of fees paid to the members of the arbitral tribunal. In a case in which the parties had not reached agreement on this, the Supreme Court saw fit to resort to the rules and practice of the International Chamber of Commerce ICC regarding the assessment of fees.128

(p. 64) 2.56  The parties are free to agree in advance on the determination of expert witnesses, attorneys, and consulting fees,129 either by entering into an express agreement on the matter or by agreeing to follow the rules of an arbitral institution.130 In the absence of such an agreement, it is for the arbitral tribunal to assess the attorneys’ fees and the costs of the arbitration proceedings.131 Ordinarily, the court will determine the amount of fees pursuant to the fee schedule provided in the law applicable to judicial proceedings,132 calling for ‘the application of its provisions, whenever they are compatible with the nature of the [arbitration proceeding]’. Thus, fees applicable to judicial proceedings would apply only if the arbitration were to evidence a format similar to court proceedings, meaning that the arbitration must include an exchange of written submissions, the production of evidence, and other steps characterizing judicial proceedings.133 In some cases, the Supreme Court of Argentina has found that the statute regulating attorneys’ fees did not apply, instead assessing arbitration fees pursuant to the ICC Rules.134 In other cases the courts saw fit to apply the schedule of fees applicable to attorneys’ fees, based on the amount at stake and the complexity of the case.135 Even when that fee schedule is applicable, it has been held that courts may disregard it whenever the amount to be paid pursuant to the schedule would result in an unfair and insufficient amount of compensation or whenever such an amount would be excessive according to the court.136

(p. 65) 2.5  After the Award

2.5.1  Local standards for setting aside/annulment

Domestic arbitral awards

2.57  Unless the parties have waived the right to appeal, arbitral awards rendered in ad hoc, institutional, or de jure arbitrations may be appealed by the parties on the same grounds as court judgments.137 An appeal provides the courts with the power to review the finding of facts and application of law made by the arbitral tribunal. In contrast to the right to appeal, the parties are not allowed to waive the right to set aside an award or to request clarification.138 Also in contrast with appellate review, the scope of review in an action to set aside is much more limited, as discussed at paragraph 2.58. It has been consistently held that the merits of arbitral awards cannot be reviewed, regardless of whether the award was rendered by arbitrators de jure139 or by amigables componedores.140

Grounds for setting aside

2.58  There are significant differences between the grounds for setting aside an award rendered by de jure arbitrators,141 and one rendered by amigables componedores.142 According to articles 760–761 NCP, an Argentine court may set aside an award, rendered by arbitrators de jure if the award (a) manifested procedural errors that are considered fundamental;143 (b) was rendered after the term for making the award had elapsed; (c) decides on issues that were not submitted (p. 66) to arbitration;144 or (d) contains contradictory decisions.145 Whether the award will be set aside in part or in full very much depends on whether the points or issues meriting annulment can be separated from the other parts of the award that were not affected by the part at fault.

2.59  A de jure arbitrator’s award may also be set aside if any of the parties to the arbitration agreement lack capacity or if the subject matter of the dispute is not capable of settlement by arbitration.146 In contrast, the only grounds for setting aside an arbitral award rendered by an amigable componedor are that it was rendered beyond the time limit provided by the agreement of the parties or by law, or that the award includes decisions on issues that were not submitted to the arbitrators.147 It has been held that the parties are not allowed to expand by agreement on the limited grounds for reviewing awards rendered by amigables componedores.148

2.60  In addition to the statutory grounds for setting aside awards rendered by de jure arbitrators and amigable componedores, Argentine courts have long recognized that an arbitral award may be set aside on grounds of public policy. While the use of public policy as a ground for setting aside an award (or as an obstacle to its recognition and enforcement) should be used sparingly, the Argentine Supreme Court’s loose manipulation of public policy in Cartellone Construcciones Civiles v Hidroeléctrica Norpatagónica o HIDRONOR, setting aside an arbitral award for being ‘unconstitutional, illegal or unreasonable’, creates uncertainty about the vulnerability of awards rendered or sought to be enforced in Argentina.149 Regrettably, the Cartellone decision had an impact in a subsequent international case, Ogden Entertainment Services v Eijo, Néstor E y otro (‘Odgen Entertainment’), in which the Chamber of the National Court of Commercial Appeals declined to recognize a foreign arbitral award on the ground that the award of attorneys’ fees contained therein was excessive and thus a violation of public policy.150 Although Ogden Entertainment did not refer expressly to Cartellone, it nonetheless utilized a Cartellone-like standard in declining to recognize a foreign arbitral award on the grounds that the award was excessive.151

2.61  Unsurprisingly, Cartellone has been the subject of strong criticism,152 and some lower courts have openly criticized its manipulation of ‘public policy’ grounds to vacate an arbitral award.153 Criticism of the Cartellone decision may explain why the Argentine Supreme (p. 67) Court of Justice has not since issued a similar opinion, and why some lower courts have avoided its application and even criticized it openly in their decisions.154

2.62  In a relatively recent decision, Mobil Argentina v Gasnor, another panel of the National Commercial Court of Appeals confirmed once again that an express waiver to appeal an arbitration award does not violate public policy, because adequate judicial review is provided in the annulment procedure, which is not subject to waiver.155

Foreign arbitral awards

2.63  Arbitral awards rendered outside Argentina are considered ‘foreign’ or ‘international’ awards, regardless of whether they were rendered in a country adhering to the New York Convention. Not having entered a reciprocity reservation to the New York Convention, Argentina does not discriminate, for the purpose of enforcing foreign arbitral awards, between countries that are parties to the New York Convention and the few that are not. There are no reported cases, to the authors’ knowledge, of awards rendered in Argentina that were considered ‘foreign’, ‘international’, or ‘non-domestic’.

2.64  The enforcement of foreign or ‘international’ awards and foreign judgments is governed by applicable international treaties and, in the absence of a treaty, the rules of civil and commercial procedure embodied in articles 517 to 519bis NCP, laying out the grounds under which their recognition and enforcement may be refused.

2.65  Applying the 1958 New York Convention, the Supreme Court of Argentina recently overturned a lower court decision that had declined to recognize an award by second-guessing the arbitral tribunal on the issue of whether the arbitration agreement had complied with the writing requirement called for by the New York Convention. Confirming the view of the lower court, the appellate court decided to set the award aside on the ground that the parties had not actually concluded the contract of carriage of goods in which the arbitration clause was incorporated.156 The Supreme Court found that the parties had satisfied the requirement of Article IV of the Convention, submitting a copy of the arbitration agreement the formal validity of which had been confirmed by the arbitral tribunal.157

2.5.2  Local procedures for setting aside/annulment

Domestic arbitral awards

2.66  A party that wishes to challenge a de jure arbitrator’s award may bring a motion: (1) asking the arbitral tribunal to reconsider its decision; (2) appealing the arbitrator’s decision to a court or second arbitral tribunal; and/or (3) requesting that the award be declared null and void in action to set aside.

2.67  With the exception of the last ground for challenge, all of the grounds mentioned at paragraph 2.66 can be waived either by express agreement of the parties or implicitly by adopting the rules of an arbitral institution.158 With the exception of a challenge to set aside the award, (p. 68) which cannot be waived, the parties may agree to the imposition of a fine against a party that challenges the award. Such a fine must be paid by the party challenging the award before the court renders its decision on the challenge.159

2.68  To appeal a de jure arbitrator’s award, a party must bring a motion before the arbitral tribunal within five days of being notified of the award.160 Thus, the arbitral tribunal’s jurisdiction may include its authority to decide the availability of this appeal, by way of exception to the general principle that it becomes functus officio once the award is rendered. If the tribunal grants the application, the file is transferred to the court of appeals with territorial and subject matter jurisdiction over the seat of arbitration. If the arbitral tribunal does not grant leave to appeal, the losing party retains the option to directly seek leave from a court of appeals, within five days of being notified of the tribunal’s decision. Before ruling on this leave for appeal, the court must first hear the other party.161 The Court may then reach a decision solely on the basis of the record of the arbitral proceedings, without the need of further exchange of briefs or evidence.162 The scope of appellate review of arbitral awards encompasses de novo review of both facts and the law, obviously addressing the merits of the case. Thus, if a party wishes to avoid judicial scrutiny of the merits of the arbitrator’s decision, a waiver of the right to appeal will be necessary. If the award is in conflict with federal law, a writ of error (recurso extraordinario) may also lie before the Supreme Court of Argentina.163 If the court of appeals dismisses the appeal or reverses the award, the aggrieved party is still formally entitled to seek further recourse by bringing a writ of error before the Supreme Court.

2.69  A party challenging an award rendered by an amigable componedor can do so only by means of a setting-aside action seeking the award’s nullification. This cannot be brought before the arbitral tribunal, but such an action can only be brought before the competent court of first instance, which must decide the matter within five days after hearing the opposing party.164 When evaluating whether to set aside an arbitral award rendered by amigables componedores, the court may hear new evidence or accept new written submissions, though this is not common because a decision based on fairness (ex aequo et bono) is unlikely to be set aside on grounds other than manifest and outrageous arbitrariness. In any event, the court’s decision on an action to set aside may in turn be subject to appeal.165 No stay of execution will be granted pending an appeal against an award rendered by amigables componedores.166

(p. 69) 2.70  De jure awards may be set aside on limited grounds, similar to those providing for the nullity of judicial decisions, including inconsistencies of the award or cases of evident partiality or misconduct on the part of the arbitrators, for example exceeding their powers or not showing sufficient deference to due process.167

2.71  If an award is set aside, the courts may reconvene a new arbitral tribunal to resolve the parties’ dispute.168 Once the time period for attacking the award has elapsed, the award acquires the force of res judicata.169 Generally, the first level of judicial review of an arbitral proceeding should be concluded within a year from the date of filing,170 subject to much longer delay if the intervention of the Supreme Court of Justice is sought and obtained.171

Foreign arbitral awards

2.72  Article 518 of the NCP outlines the procedure for seeking the enforcement of foreign arbitral awards. The enforcement action must be commenced before a competent court of appeals, accompanied by ‘a certified copy and translation of the judgment, along with the documents showing that the judgment is enforceable and that all requirements have been complied with, if such compliance is not evidence from the face of the judgment’. Thus, unless expressly noted in the code itself, the provisions applicable to the enforcement of foreign judgments also apply to the enforcement of arbitral awards. Depending on the complexity of the case, the annulment proceedings may take between one and two years. Occasionally, Argentine courts have granted a stay of the enforcement of a foreign award pending further consideration of questions presented before the court.172

2.6  Conclusion

2.73  Arbitration in Argentina has its pitfalls, in particular due to a generalized perception of discredit brought about by numerous investor complaints against Argentina and the fact that the country continues to operate with an obsolete statutory framework in matters of arbitration (p. 70) in general, with very little attention paid to the singularity of international commercial arbitration. While the current environment does not seem openly or even consistently hostile to arbitration, arbitration law in Argentina fails to embrace, comparatively speaking, a positive approach towards the enforcement of domestic as well as foreign arbitration agreements and arbitral awards.

2.74  Due to the many gaps in the arbitration provisions found in the National Code of Civil and Commercial Procedure, it is particularly advisable for the parties to either choose arbitration rules especially geared towards international commercial arbitration or, if the arbitration is ad hoc, to provide in the contract itself for every possible instance in which either an obsolete provision can be waived or an issue can be clarified.

Footnotes:

*  The authors wish to acknowledge and thank Lucila Hemmingsen for her assistance in the preparation of this chapter. Responsibility for all errors and omissions are our own.

1  See A Spinillo and E Vogelius, ‘Argentina’ in N Blackaby et al (eds), International Arbitration in Latin America (Kluwer Law International, 2002) 20–1, noting that Argentina first adopted a law permitting alternative dispute resolution in 1812 and that arbitration was permitted under the Commercial Code of 1862 and the Civil and Commercial Code of Procedure of 1880.

2  On the many arbitration bills submitted to the Argentine Congress and speculations on their failure to become law, see RJ Caivano, ‘La obsolescencia de la legislación argentina sobre arbitraje es cada vez más evidente’ (9 January 2010) Revista del Colegio de Abogados de la Ciudad de Buenos Aires, available at <http://www.colabogados.org.ar/larevista/pdfs/id11/la-obsolescencia-de-la-legislacion-argentina.pdf>.

3  Código Procesal Civil y Comercial de la Nación (Arg) (Cód Proc Civ y Com).

4  See Constitución Nacional (Arg), art 121-24 (hereinafter ‘Const Arg’).

5  See Const Arg, art 31, providing that in additional to the federal Constitution, federal laws and international treaties are ‘the law of the land’.

6  Law No 23619, 4 November 1988, BO (Arg) <http://www.infojus.gov.ar/index.php?kk_seccion=documento&registro=LEYNAC&docid=TRA%2520C%2520023619%25201988%252009%252028>, adopting reservations related to reciprocity and commercial disputes.

7  Law No 24322, 17 June 1994, BO (Arg) <http://www.infojus.gov.ar/index.php?kk_seccion=documento&registro=LEYNAC&docid=TRA%2520C%2520024322%25201994%252005%252011>. Unlike the US, Argentina has not adopted implementing legislation to the New York and Panama conventions, so there is no express rule aimed at settling a potential conflict of application of the New York and Panama conventions. See JC Hamilton, ‘Three Decades of Latin American Commercial Arbitration’ (2009) 30 U PA J Intl L 1099, 1100.

15  Decree-Law No 6689/63:

The Executive Power is authorized to pledge the public credit of the Nation, with a secondary or principal character, for the purposes and subject to the aforementioned conditions on behalf of public or private entities, and to submit eventual controversies with foreign parties to judges in other jurisdictions, arbitral tribunals who are impartially designated or the International Court of Justice in The Hague.

16  Law No 26361, 7 April 2008, BO, art 29 (Arg):

The enforcement authority shall organize arbitral tribunals that will act as amigables componedores or de jure arbitrators, depending on the case, to resolve the controversies that might arise as a result of this law. The enforcement authority may invite, in line with the conditions established in the law, all qualified persons proposed by consumer-advocate associations and chambers of commerce. <http://www.infojus.gov.ar/index.php?kk_seccion=documento&registro=LEYNAC&docid=LEY%2520C%2520026361%25202008%252003%252012>; Decree No 276/98, 13 March 1998, BO (Arg) <http://www.infojus.gov.ar/index.php?kk_seccion=documento&registro=DECRETOS&docid=DEC%2520C%2520000276%25201998%252003%252011>; Resolution No 212, Secretary of Trade, Dictámenes de la Procuración del Tesoro No 212, 2 November 1992 (Arg). <http://www.infojus.gov.ar/index.php?kk_seccion=documento&registro=DICTAMEN&docid=G0203034>.

17  Bolsa de Comercio de Buenos Aires, Régimen Arbitral <http://www.bcba.sba.com.ar/tribunal/regimen.php>.

18  Cámara Arbitral de la Bolsa de Cereales de Buenos Aires <http://www.cabcbue.com.ar/camara/index.php?option=com_content&task=view&id=466>.

19  cf UNCITRAL Arbitration Rules as revised in 2010, GA Res 65/22, Art 35, UN Doc A/RES/65/22 (6 December 2010): ‘The arbitral tribunal shall decide as amiable compositeur or ex aequo et bono only if the parties have expressly authorized the arbitral tribunal to do so’ (hereinafter ‘UNCITRAL Rules’).

20  See eg CNCom, 26 September 1988, Welbers SA, Enrique C v Extraktionstechnik Gesellschaft für Anlagenbay [1989-E] La Ley 304 (Arg).

21  NCP, art 739.

22  NCP, art 741.

23  See eg CNCom, 7 February 2011, Sociedad de Inversiones Inmobiliarias del Puerto v Constructora Iberoamericana (Arg), implicitly allowing the parties to use the rules of the ICC to set the terms of reference; but see CNCom, 21 December 1990, Compañía Naviera Pérez Companc y otros v Ecofisa et al 143 El Derecho 435 (Arg); Juzgado Contencioso Administrativo (1st Inst), 27 September 2004, Entidad Binacional Yacyretá v Eriday et al [2005-A] La Ley 12 (Arg), enforced, 18 April 2005 [2005-C] La Ley 651 (Arg).

24  See eg CNFed, 7 March 2007, Estado Nacional—Procuración del Tesoro v Cámara de Comercio Internacional (2007) IV Jurisprudencia Argentina 26 (Arg); CNCom, 3 March 2005, Ogden Entertaiment Servs Inc v Eijo, Néstor E et al LEXIS 35001029 (Arg); Entidad Binacional Yacyretá (n 23); CSJN, 1 June 2004, José Cartellone Construcciones Civiles SA v Hidroeléctrica Norpatagónica SA o HIDRONOR SA (2004) 327 Fallos 1881 (Arg).

25  See eg CSJN, 24 May 2011, Armada Holland BV Schiedam Denmark v Inter Fruit SA (2011) 334 Fallos 552 (Arg); CNCiv y Com, 3 January 2011, Smit Intl Argentina SA v Puerto Mariel (Arg), recognizing the principal of seperability; CNCom, 19 October 2010, Cemaedu SA v Envases EP SA (Arg), extending the effects of the compromise clause to a guarantor; Sociedad de Inversiones Inmobiliarias del Puerto v Constructora Iberoamericana, CNCom, 7 February 2011, available at <http://fallos.diprargentina.com/2011/09/sociedad-de-inversiones-inmobiliarias.html>; CNCom, 8 August 2007, Mobil Argentina SA v Gasnor SA elDial.com–AA4188 (Arg), granted leave to appeal by, CNCom, 9 October 2007, remanded by CSJN, 26 May 2010, denied leave to appeal by, CNCom, 25 April 2011; Juzgado Comercial (1st Inst), 24 February 1988, SA La Razón EEFIC & A v SA La Nación et al 139 El Derecho 630 (Arg). See also CNCom, 19 October 2012, Casanova Susana v Synthon Holding S.A. et al.

26  See eg CNCom, 15 March 2012, Fe SA v Telefónica Móviles Argentina SA (Arg); CNCom, 7 May 2010 Medina Antonio v Pizza Rica SA elDial.com, 4 April 2010 (Arg), holding that ‘the jurisdiction of the arbitral tribunal is exceptional in relation to the jurisdiction of a judicial tribunal such that the clause that establishes arbitral jurisdiction should be interpreted restrictively. As a consequence, its reach should be limited to the interpretation of contractual clauses or the verification of factual questions, excluding those issues that are reserved for the exclusive review of a judge’; CNCom, 13 June 1972, Vialco SA v El Fletero 50 El Derecho 463, 15 Jurisprudencia Argentina 371, 152 La Ley 505 (Arg). See also CNCom, 19 October 2012, Casanova Susana v Synthon Holding S.A. et al.

27  See José Cartellone Construcciones Civiles (n 24). The case concerned a dispute over a public works contract with an arbitration clause, resulting in an arbitral award rendered in Argentina in favour of the plaintiff, which the defendant sought to vacate. Plaintiff, José Cartellone Construcciones Civiles SA, was one of the leading Argentine construction companies, while the defendant, Hidroeléctrica Norpatagónica SA, was a state-owned company. The case eventually reached the Supreme Court of Argentina, which vacated the award on the grounds that it was ‘unconstitutional, illegal or unreasonable’. See also Spinillo and Vogelius (n 1) 21–2; see also A Mourre, ‘Perspectives on International Arbitration in Latin America’ (2006) 17 Am Rev Intl Arb 597, 597–9.

28  José Cartellone Construcciones Civiles (n 24).

29  Mobil Argentina SA (n 25). The case concerned a dispute over a contract for the provision of natural gas. The case was arbitrated before the ICC. Notwithstanding the inclusion of a waiver of the parties’ right to appeal in the underlying contract, Gasnor SA sought a review of the award based on the standard of review enunciated by the Supreme Court in José Cartellone Construcciones (n 24). A panel of the Cámara Nacional de Apelación rejected Gasnor’s claim after heavily criticizing the Supreme Court’s decision in Cartellone.

30  cf Spinillo and Vogelius (n 1) 21; Mourre (n 27) 599–603 with 604–7.

31  See Mourre (n 27) 604–7.

32  See eg Caivano (n 2); RJ Caivano, ‘Argentina necesita mejorar su legislación sobre arbitraje’ [1994-A] La Ley 994; HG Naón, ‘La ley modelo sobre arbitraje comercial internacional y el derecho argentino’ [1989-E] La Ley 881.

33  See UNCITRAL Model Law on International Commercial Arbitration, as revised in 2006 <http://www.uncitral.org/uncitral/en/uncitral_texts/arbitration/1985Model_arbitration.html>

34  See Reforma del Código Civil y Comercial, <http://www.codigocivil.argentina.ar/dia-por-dia/>; see also Decree No 191/2011, providing for the establishment of a presidential commission (the leading members of this drafting committee were Chief Supreme Court Justice Ricardo Lorenzetti, Associate Justice Elena Highton, and former Chief Justice of the Supreme Court of the Province of Mendoza), in charge of the elaboration of a draft providing for the unification of the civil and the commercial codes.

35  See Anteproyecto de Reforma del Código Civil y Comercial <http://www.codigocivil.argentina.ar/advf/documentos/4f997912226b8.pdf>.

36  See Caivano (n 2).

37  See PF Richards, ‘Controversial Court Decisions. Forthcoming Legislation. An Opportunity to Change?’ in The Arbitration Review of the Americas 2013, available at <http://www.globalarbitrationreview.com/reviews/48/sections/167/chapters/1864/argentina/#fono4>.

38  2012 Draft Civil and Commercial Code, art 1652.

39  This is consistent with Model Law, Art 7, but it seems advisable to provide for a sole arbitrator as a default rule, indicating that if the amount in dispute exceeds a given threshold (eg US$100,000), the default number of arbitrators should be three. See eg International Chamber of Commerce, Arbitration and ADR Rules, Art 12.

40  See Anteproyecto de Reforma del Código Civil y Comercial, art 1656.

41  See Convention on the Recognition and Enforcement of Foreign Arbitral Awards, Art II(3), 7 June 1958, 330 UNTS 3 (hereinafter ‘New York Convention’).

42  NCP, art 737.

43  See Código Civil, art 2336 (Arg) (hereinafter ‘Civil Code’) <http://www.codigocivilonline.com.ar/codigo_civil_online_2311_2350.html> for a definition of res extra commercium.

44  See eg CNCom, Division F, 18 October 2010, Re Vañesa Andrea Fabiana v Carballal Viviana Isel y otros, divesting the arbitral tribunal of jurisdiction where the arbitration clause encompassed both arbitrable and non-arbitrable questions, see <http://www.abogados.com.ar/establecen-cuando-procede-la-exclusion-de-la-competencia-arbitral/9397>; CNCom, 6 May 2010, Cri Holding Inc Sucursal Argentina v Cía Argentina de Comodoro Rivadavia Explotación de Petróleo SA (Arg), a party declined to proceed with arbitration on a particular issue on the grounds that it was non-arbitrable on public policy grounds. The Court found that the issue was indeed non-arbitrable and refused to refer the matter to arbitration.

45  See New York Convention, Art II(3).

46  See eg CNCom, 03 October 2012, Captec S.R.L. v Constructora San José Argentina S.A. (Arg.) (finding the right to arbitration waived where the party participated in a mediation proceeding without objection); CNCiv, 31 October 1975, Signorelli, SA v Arriberos y Zavala, SCA 66 El Derecho 232 (Arg).

47  The NCP, art 742 provides that:

The constitution of an arbitral tribunal may be requested when one or more disputes are in need of settlement by arbitration. A request for arbitration must be submitted, subject to the relevant requirements of article 330, before the court that would have been the competent to hear the case. The court shall send a written communication to the respondent within 10 days, and a hearing shall be scheduled in order to proceed with a formal conclusion of the submission. In case of a groundless refusal to conclude a submission, the judge shall proceed pursuant to Article 740. If the objection raised against the composition of the tribunal is correct, the judge shall declare it so, and, if necessary, shall impose costs after a preliminary incidental proceeding. If the parties agree to conclude a submission, but disagree on the substance thereof, the court shall provide what is pertinent.

48  See eg CNCiv, 17 July 1998, Calistri, LA v Chiron, JA (Arg); CComCap, 20 April 1956, Squery Atilio Lorenzo v Casas, Oscar y otros 83 La Ley 719; (1956) III Jurisprudencia Argentina 280 (Arg); cf CNCom, 31 July 1948, Corporación Cementera Argentina v Cía Deutz Argentina 52 La Ley 23 (Arg).

49  See eg Compañía Naviera Pérez Companc y otros (n 23) ordering the trial judge to resolve a dispute over the terms of reference by imposing his own terms, even though the parties had submitted their dispute to an arbitral institution that already provided for a mechanism to fill gaps in the terms of reference; CNCiv, 25 February 2013, Wallaby S.A. v Despegar.com.ar (Arg.); Entidad Binacional Yacyretá (n 23).

50  See eg CNCom, 28 July 1954, ‘Peruzzotti, Arturo A v Asociación Argentina de Criadores de Aves, Conejos, y Abejas 76 La Ley 324 (Arg); CComCap, 3 November 1954, Molinari, Atilio A y otro v Bacigalupe de Bordenave Lola 77 La Ley 648 (Arg); Cementera Argentina (n 48).

51  See eg CComCap, 19 September 1966, Hadra y Cía (SA) v Ferrarini, Dardo (1966) VI Jurisprudencia Argentina 36 (Arg); CNCom, 15 October 1957, Atarrasagasti, Alberto y otros v Motti di Piazza y otros 91 La Ley 59 (Arg); Peruzzotti (n 50); cf CNCom, 31 July 1948, Corporación Cementera Argentina v Cía Deutz Argentina 52 La Ley 23 (Arg).

52  Compañía Naviera Pérez Companc y otros (n 23).

53  For a well-deserved criticism of the national court’s interference, see RJ Caivano, Control Judicial en el Arbitraje (AbeledoPerrot, 2011) 138–40.

54  See eg Compañía Naviera Pérez Companc y otros (n 23).

55  See eg Signorelli, SA (n 46).

56  See eg CNFed, 29 October 1974, Sargo SA v Gas del Estado 66 El Derecho 585 (Arg) suggesting in dicta that a court would have jurisdiction in the event that the matter could not be submitted to an arbitral tribunal.

57  See eg Bolsa de Comercio de Buenos Aires, Régimen Arbitral, art 33 <http://www.bcba.sba.com.ar/tribunal/regimen.php>.

58  MB Noodt Taquela, ‘El arbitraje internacional en Argentina’ in Derecho del Comercio Internacional. Temas y actualidades DeCITA, 02-2004, 322.

59  See eg CNCom, 20 November 2002, Soletanche Bachy Arg SA v Victorio Americo Gualtieri SA (Arg).

60  See eg CComCap, 27 October 1943, Dreyfus y Cía, Ltda, Luis v Dunne, Guillermo J 32 La Ley 667 (Arg).

61  See eg CNCom 22 September 2005, Searle Ltd v Roemmers SA [2006-A] La Ley 239; CNCom, 29 October 2002, SRAA v Prime Argentina SA (Holdings) [2003-C] La Ley 122) (Arg); CNCom, 12 December 2000, Pérez Companc SA et al v Enersis SA et al 192 El Derecho 142 (Arg).

62  See CNCom, 11 April 2002, Forever Living Products Argentina SRL v Beas, Juan et al, special procedural law, LEXIS 11/31228 (Arg), declining to recognize an injunction that would have prohibited a party from disclosing any confidential information previously obtained from its opponent.

63  See JC Rivera, Arbitraje Comercial: Internacional y Doméstico (Lexis Nexis, 2007) 216.

64  See eg CNCom, 24 August 2000, Boess, Adriana et al v Discotecas Free Way SRL [2001-B] La Ley 52 (Arg); CNCom, 27 August 1999, Fernández Gallardo, Carlos M et al v Morales, Ana M et al (2000) III Jurisprudencia Argentina 40 (Arg). This decision is misguided, and not in line with decisions in other jurisdictions, at least in those cases where it has been established beyond dispute that the parties sought to submit the dispute to arbitration, though failing to identify the institution in charge of administering the arbitration. If the parties’ consent to submit the dispute to arbitration is well established, the default rules on the constitution of the arbitration tribunal may proceed with the arbitration, either under the applicable institutional rules or under the default rules governing ad hoc arbitration proceedings.

65  NCP, arts 742 and 743.

66  See eg Peruzzotti (n 50).

67  See eg CComCap, 18 December 1946, Caul, Santiago v Cabec (Soc de Resp Ltda) (1946) IV Jurisprudencia Argentina 841, 45 La Ley 198 (Arg).

68  See eg CSJN, 24 May 2011, Armada Holland BV Shiedam Denmark v Inter Fruit SA (2011) 334 Fallos 552 (Arg), holding that it was improper for a lower court to question an arbitral tribunal’s finding of jurisdiction after the arbitrators had rendered a final award; CNCom, 1 April 2011, Cubero Alberto Martin et al v Olman Argentina SA (Arg); CNCom, 28 October 2009, Harz Und Derivate et al v Akzo Nobel Coatings SA et al (Arg); CNCom, 16 September 2008, SP Relevamientos Catastrales SA Recovery SA v Municipalidad de la Ciudad de Cordoba (Arg); CNCom, 25 August 2003, Otondo, Cesar Alberto et al v Cortina Beruatto SA et al elDial.com Año VI, No 1358 (Arg); CSJN, 5 April 2005, Bear Service v Cerveceria Modelo SA (Arg) citing Model Law, Art 16 for the proposition that an arbitral tribunal has competence to determine its own jurisdiction, subject to review by a competent court; CNCom, 5 November 2002, Reef Explorations Inc v Cía General de Combustibles (2003) III Jurisprudencia Argentina 90 (Arg). See generally Caivano (n 53) 27.

69  See eg CSJN, 11 May 2004, Basf Argentina SA v Capevielle Kay y Cía SA (2004) 327 Fallos 1450; CSJN, 10 November 1988, Nidera Argentina v Rodriguez Álvarez de Canale (1988) 311 Fallos 2300 [1990-A] La Ley 419 (Arg); CNCom, 23 September 1999, Cía General de Combustibles (2001) III Jurisprudencia Argentina 53 (Arg); CNCom, 30 September 1955, Cimic SRL v Silva 82 La Ley 402 (Arg).

70  See eg CNCom, 06 March 2013, Grupo Propeller S.A. v Hincubu S.A. (Arg.), respecting a clause contained in the parties’ contract granting the arbitrator power to determine his own jurisdiction. The principle kompetenz-kompetenz is expressly recognized in the 1998 Mercosur International Commercial Arbitration Agreement, Arts 8 and 18. The Arbitration Rules of the Inter-American Commission of Commercial Arbitration Rules, Art 3, which applies in the absence of the parties’ choice of the lex arbitri under the Panama Convention, Art 21(1), also acknowledges that the arbitral tribunal has the power to decide on its own jurisdiction.

71  cf Reef Explorations Inc (n 68) with Cía General de Combustibles (n 69) (Arg). See also Rivera (n 63) 422.

72  NCP, art 12.

73  NCP, art 752.

74  See eg Basf Argentina SA (n 69) adopting the views of the Procurador General that the duty to settle jurisdictional disputes that arise between arbitral tribunals and trial courts falls upon the Supreme Court of Justice (CSJN); CN Civ y Com, 26 August 2003, Administración de Usinas y Transporte Eléctrico del Uruguay v Centro Puerto SA (Arg), holding that a jurisdictional dispute between the arbitral tribunal and the court must be resolved by the CSJN.

75  See Caivano (n 53) 27.

76  See eg CNCom, 14 August 1990, Vázquez Torrielli, EN v Vázquez de Castro 141 El Derecho 121, [1990-E] La Ley 148 (Arg).

77  See eg CComCap, 6 April 1967, Iungman, Mauricio v Belgrano/Cía de seguros (1967) IV Jurisprudencia Argentina 58 (Arg), holding that a party had waived the right to arbitration by failing to bring a timely motion before the Argentine Court to dismiss the action to the arbitral tribunal; cf CNCiv, 3 March 1966, Garde Otto & Cía v Municipalidad de la Capital 15 El Derecho 677, 122 La Ley 370 (Arg), to the effect that a party may waive the right to proceed to arbitration by submitting to the jurisdiction of a court.

78  See eg SA La Razón EEFIC & A (n 25).

79  See eg CNCom, 10 November 2011, Esparrica Mario Roberto v Famiq SA (Arg); Vañesa Andrea Fabiana (n 44); CNCom, 15 July 2010, Araujo Osvaldo Gabriel v Frances Administradora de Inversiones SA et al (Arg); CNCom, 5 May 2000, Alquigas SA v Servinorte SA [2000-E] La Ley 489 (Arg).

80  See eg CNCom, 6 May 2010, Cri Holding Inc Sucursal Argentina v Cía Argentina de Comodoro Rivadavia Explotación de Petróleo SA (Arg).

81  See eg Vañesa Andrea Fabiana (n 44).

82  See Caivano (n 53) 42–3.

83  See eg CNCiv y Com, 3 January 2011, Smit Intl Argentina SA v Puerto Mariel; CNCom, 27 August 1999, Camuzzi Argentina SA v Sodigas Sur, SA/sumario 185 El Derecho 125 (Arg); citing CNCom, 26 September 1988, Welbers SA, Enrique C v Extraktionstechnik Gesellschaft für Anlagenbay [1989-E] La Ley 304 (Arg).

84  See eg CNCom, 15 February 2008, Miracle SA et al v Fernández, Juan Carlos 228 El Derecho 280 (Arg); CNCom, 30 July 1965, Hadra y Cía, SA, Pablo v Ferriarini, Dardo 120 La Ley 322 (Arg).

85  See AB Bianchi, ‘Cuando los jueces vienen marchando’ [2005-A] La Ley 27, discussing and criticizing the Yacyretá case. Estado Nacional—Procuración del Tesoro (n 24) issuing an injunction ordering the suspension of arbitral proceedings against the state, pending the consideration of a recusal motion; Entidad Binacional Yacyretá (n 23) issuing and subsequently enforcing an injunction against further proceedings by the arbitral tribunal pending judicial proceedings to determine the issues to be arbitrated.

86  National Grid v Republic of Argentina, ICSID Case No ARB/07/17.

88  See NCP, art 746 which provides that:

Arbitrators appointed by the court may be challenged on the same grounds as judges. Arbitrators appointed by agreement of the parties may be challenged only for reasons of which the parties become aware after the appointment was made.

Arbitrators may not be challenged without proper grounds. They shall be removed only with the consent of the parties and court approval.

89  See NCP, art 17.

90  See NCP, art 768 which provides that:

Amigable componedores may be challenged only for reasons of which the parties become aware after the appointment has been made.

The only valid grounds for challenge shall be:

  1. 1)  Direct or indirect interest in the matter;

  2. 2)  Relationship with any of the parties of consanguinity within the fourth degree, or of affinity within the second degree;

  3. 3)  Manifest enmity with the parties on account of any specific incidents.

    On the incidental plea of challenge, the proceedings shall be conducted in accordance with the procedural rules provided for the challenge of de jure arbitrators.

91  See NCP, art 747 which provides that:

The challenge shall be brought before the same arbitral tribunal within five days of the challenging party’s becoming aware of the appointment of the arbitrators.

If the challenged arbitrator refuses to resign, the challenge proceeding shall be conducted by the judge before whom the submission was concluded or who should have been competent to take the case in the absence of the submission.

The provisions of article 17 and the following, when applicable shall apply.

The decisions of the judge shall be final.

The arbitration proceedings shall remain suspended, pending a decision on the challenge.

92  See NCP, art 751 which provides that:

If rules of arbitral procedure have not been agreed upon in the arbitral clause, in the submission, or in a subsequent agreement by the parties, the arbitral tribunal shall decide whether to follow the rules for ordinary or summary judicial proceedings, taking into account the nature and economic importance of the case. This decision shall be final.

93  See NCP, art 769 which provides that:

Amigables componedores are not bound by legal formalities; they shall limit themselves to receiving pleadings or documents submitted by the parties, request clarifications they deem proper, and render an award based on their knowledge and understanding.

94  See NCP, art 387.

95  Spinillo and Vogelius (n 1) 43.

96  See NCP, art 753 which provides that:

Arbitrators cannot issue orders of compulsion or enforcement. They must request compulsory measures from the court which shall lend its assistance in order to achieve the speediest and most efficient conduct of the arbitral proceedings.

97  Arbitration Law & Practice, ARG C-4-5.

98  See NCP, art 753.

99  Such a limitation, if imposed, may be in conflict with the equal protection clause embedded in the Argentine National Constitution, art 20.

100  See eg CCivCap, 21 May 1948, Amura, Elso JC v Goglino, Emilio José y otros II Jurisprudencia Argentina 540 (Arg).

101  See Rivera (n 63) 231; GS Tawil, ‘Argentina’ in P Sanders (ed), International Handbook on Commercial Arbitration (Supp, 2011) 13–14.

102  See Spinillo and Vogelius (n 1) 48.

103  See eg CFedCap, 13 June 1949, Matarazzo Ltda (Soc Paulista de Navegación) v Cassanello, Ángel SA 56 La Ley 722 (Arg).

104  See eg CNCrim and CNCorr, 8 February 1946, Enquin, José 44 La Ley 735 (Arg).

105  See RJ Caivano, Arbitraje (Ad-Hoc, 2000) 234–5.

106  The Criminal Code of Argentina, art 275 provides in its pertinent part:

Any lay or expert witness or interpreter who, before a competent authority, makes an affirmatively false statement, denies the truth or fails to speak the truth in his testimony, in whole or in part, at his or her deposition, in his report, translation or interpretation, shall be subject to a prison term between one month and four years.

107  NCP, art 360.

108  See NCP, art 427: ‘A party may not offer as a witness someone who is related to them by blood or in direct line, their spouse even if they are legally separated, unless the matter concerns the recognition of signatures.’ Witnesses may be challenged for appearing to lack impartiality, such as when it is alleged that a given witness maintains a relationship of ‘dependency’ with one of the parties (eg current employees of a party, or a party’s former employees asked to testify about events occurring during their employment by one of the parties). The court or arbitral tribunal may ultimately decide to admit their testimony, retaining the last word on the credibility and the weight to be attached to such evidence.

109  See NCP, art 458.

110  See NCP, art 462.

111  See eg CNCiv, 26 May 1953, Barredó, Antonio Oscar v Kutscher, Ascher y otro (1953) IV Jurisprudencia Argentina 343 (Arg).

112  See eg CCivCap, 19 July 1922, Scotti v Naón, 9 Jurisprudencia Argentina 74.

113  See eg CNCom, 7 September 2007, Papel de Tucumán SA v Banade (Arg); see also RJ Caivano, ‘El plazo para laudar y el carácter supletorio de las normas legales en el arbitraje institucional’ (2008) 230 Revista de Derecho Comercial y de las Obligaciones 813.

114  NCP, art 754 provides that:

Arbitrators shall make the award on all matters submitted for their decision within the period of time provided in the submission, subject to any extension agreed upon by the parties.

Ancillary disputes as well as those consented to by the parties shall also be deemed to have been included in the submission to arbitration.

115  NCP, art 757 provides that:

An award signed by a majority of the arbitrators shall be valid even if any members of the tribunal refuse to participate in the proceeding or in the making of the award.

If a consensus cannot be reached because the opinions or the votes on each issue lead to situations that are irreconcilable with regard to all the issues submitted to arbitration, an additional arbitration shall be appointed to resolve the deadlock.

If a majority agreement has been reached with regard to certain issues of the dispute, an award shall be made in respect thereof. The parties or the judge, as the case may be, shall appoint another arbitrator who shall make an award in respect of the remaining issues of the dispute within the period of time designated by the parties or judge, as the case may be.

116  See eg CNCom, 3 June 2003, Calles, Ricardo et al v General Motors Corps [2004-B] La Ley 313 (Arg), partially setting aside an award for not addressing all the issues submitted to arbitration.

117  See eg CNCom, 20 September 2004, Ogden Entertainment Servs Inc v Eijo, Néstor E. y otro [2005-B] La Ley 21 (Arg).

118  See eg CNCom, 9 December 1959, De Bodnar, Ricardo v Barbieri, José y otro 99 La Ley 130 (Arg), holding that the arbitrator’s vote must be signed to be valid.

119  NCP, art 757.

120  NCP, art 757.

121  See eg De Bodnar (n 118).

122  See Argentine CivC, art 1083: ‘Compensations for damages shall consist of restoring things to their prior state, except that monetary compensation shall do if such a restoration is impossible. Nevertheless, the aggrieved party retains the right to opt for compensation in money’, available at <http://www.codigocivilonline.com.ar/codigo_civil_online_1066_1106.html>.

123  See Law No 26321, 7 April 2008, BO, art 25 (Arg):

In the instance that a provider does not comply with its legal or contractual obligations to the consumer, the judge may upon request apply a civil fine for the benefit of the consumer. The amount of compensation shall be determined according to the magnitude of the damage and the circumstances of the case. If the fault of the wrongful act or the breach of the contract is attributable to more than one provider, all providers will be jointly responsible, with the proper reimbursements among them.

124  See Argentine CivC, art 623, providing that ‘no interest shall be owed on interest...’. Compound interest is, however, allowed in many banking operations and commercial transactions in general (Argentine ComC, arts 569, 788, and 795).

125  NCP, art 772.

126  NCP, art 68.

127  See eg CNCom, 13 March 2009, Nea Commerce SA v Sky Argentina SCA (Arg).

128  See eg CSJN, 29 April 1997, Blanco, Guillermo y otro v Petroquímica Bahía Blanca y otro (1997) 320 Fallos 700 (Arg).

129  Law No 24432, 15 December 1994 (published 1 January 1995), art 14 (Arg): ‘Professionals or experts in any activity shall be entitled to enter into agreement with their clients setting out their compensation, without regard to the schedule of fees set out in laws. If such fees pertain to services in judicial or arbitral proceedings, the general rule that such fees may be recovered from the losing party shall apply.’ <http://www.infojus.gov.ar/index.php?kk_seccion=documento&registro=LEYNAC&docid=LEY%2520C%2520024432%25201994%252012%252015>.

130  See eg RJ Caivano, ‘Los honorarios de los abogados en el arbitraje’ (1998-F) Jurisprudencia Argentina 167.

131  See NCP, art 772 which provides that:

Arbitrators and amigables componedores shall decide on the imposition of costs in accordance with articles 68 et seq.

The party who fails to perform any actions indispensable to the successful completion of the arbitration shall pay costs, in addition to any fine provided under article 740. The fees of arbitrators, the secretary of the tribunal, attorneys, solicitors (procuradores), and other professionals shall be fixed by the court.

The arbitrators may request the court to order the deposit of, or attachment for, an amount equivalent to their fees, unless the value of the property at stake in the arbitration is a sufficient guarantee.

133  See CSJN, 11 November 1997, Yacimientos Carboníferos Fiscales re/arbitral tribunal (1997) 320 Fallos 2379 (Arg); Blanco, Guillermo y otro (n 128).

134  See Yacimientos Carboníferos Fiscales (n 133).

135  See eg CNCom, 30 June 2011, Igarzabal Claudio Adrian v Berries Premium SA (Arg), distinguishing Blanco Guillermo and applying Law No 21839, regulating attorney fees in court proceedings, on the ground that arbitration proceedings have many similarities with judicial proceedings, including the formal presentation of the summons and complaint, a period of time to answer, an opportunity to file a motion to dismiss, etc.

136  Law No 24432, 15 December 1994 (published on 1 January 1995), art 13 (Arg):

Judges should regulate the fees of professionals, expert witnesses, receivers, liquidators and other auxiliaries of the court, for any work done in support of a judicial or arbitral proceedings, without regard to the minimum amounts or percentages established by the national or local laws governing such fees, in those cases in which the nature, reach, time, quality or result of the work done or the value of the property at stake suggests that strict application of the fee schedule is evidently and unjustifiably disproportionate in light of the importance of the work done and the compensation to be fixed under such fee regime. In such cases, the decision deciding not to apply said fee schedule must indicate, under pain of nullity, the reasons supporting setting aside the fee schedule.

137  See NCP, art 758 which provides that: ‘Any recourse available against a court judgment is available against an arbitral award, unless such a recourse has been waived in the submission.’

138  See NCP, art 760 which provides that:

If recourse has been waived, any request for recourse against the award shall be rejected without further proceedings.

The waiver of recourse shall not, however, prevent the parties from requesting reargument, nor shall it prevent a request for a declaration of nullity on the grounds that the award is based on substantial procedural defects, that the award has not been made within the applicable time period or that the award deals with a dispute that does not fall within the terms of the submission. In the latter case, the declaration of nullity shall be partial if the award is divisible.

A request for an interpretation or a declaration of nullity of the award shall be decided without any substantiation.

139  See eg CNCom, 09 December 2009, EDF Intl SA v Endesa Internacional—España (Arg); CNCom, 21 February 2008, Nemesio Antonio y otros v Teledigital Cable SA (Arg); Mobil Argentina SA (n 25); Calles (n 116).

140  See eg CSJN, 18 August 1922, Otto Frank v Provincia de Buenos Aires 9 Jurisprudencia Argentina 190 (Arg); CNCom, 4 April 1989, Salaberry, G et al v Natalío Alba SA (1989) III Jurisprudencia Argentina 514 (Arg); SA La Razón EEFIC & A (n 25).

141  NCP, arts 760–761.

142  NCP, art 771 which provides that:

The award made by amigable componedores shall be final. However, if the award was made after the designated period of time or in respect of matters not contemplated in the submission, the parties may request the annulment of the award within five days of the receipt of notice thereof.

Upon receipt of the application, the court shall notify the other party, who shall have five days to reply. After the period of time has elapsed, the court shall give a final decision as to the validity or nullity of the award.

143  See Calles (n 116) partially setting aside an award where the arbitral tribunal failed to decide all the issues it was called upon to decide; Nemesio Antonio (n 139) stating in dicta that the failure to rule on an issue amounted to the kind of essential procedural error that would permit an award to be set aside pursuant to the NCP, art 760; CNCom, 2 May 2008, Red de Monitoreo SRL v ADT Security SA (Arg), declining a party’s request to set aside an arbitral award on the basis of alleged procedural errors because the party’s memorandum of law did not identify any errors the arbitrators had committed. Mobil Argentina SA (n 25) rejecting a challenge against an award on this ground; CNCom, 12 July 2002, Total Austral SA v Saiz, Francisco (2003) II Jurispudencia Argentina 77 (Arg), CNCom, 21 November 2001, Cortesfilms Argentina SA v Seb Argentina 196 El Derecho 620 (Arg).

144  See CComCap, 15 July 1957, Haigay Sary v Vesgan, Danielan et al 89 La Ley 737 (Arg), setting aside an award where the arbitrator decided an issue he or she was not called upon to decide; Mobil Argentina SA (n 25); Calles (n 116). See also CSJN, 27 December 1974, Yacimentos Petroliferos Fiscales v SA Sargo Argentina (1974) 290 Fallos 458 (Arg), setting aside an award, via a writ of error (recurso extraordinario), on the ground that that the appellate court denied an action to set aside against an award that failed to give reasons, rendering an award in US dollars rather than Argentine pesos, as required in the compromiso.

145  See Calles (n 116).

146  See NCP, art 740.

147  See eg CSJN, 24 August 1976, ‘Carmen Alba v Adriana Chevy y otros,’ (1976) 295 Fallos 597 (Arg); CSJN, 13 August 1907, Provincia de Buenos Aires v Los herederos de Juan José Basavilbaso (1907) 107 Fallos 126 (Arg).

148  See eg Salaberry (n 140).

149  José Cartellone Construcciones Civiles (n 24).

150  See Ogden Entertainment (n 24).

151  Ogden Entertainment (n 24).

152  See Rivera (n 63) 676 and fn 111.

153  See eg Mobil Argentina SA (n 25).

154  Mobil Argentina SA (n 25).

155  NPC, art 760. See also CNCom, 25 April 2011, Mobil Argentina SA v Gasnor SA, affirming CNCom, 8 August 2007, Mobil Argentina SA v Gasnor SA (n 25).

156  The decision of the court of appeal can be found at <http://ar.vlex.com/vid/-280301515>.

157  See Armada Holland BV Schiedam Denmark (n 25); see also the commentary at <http://fallos.diprargentina.com/2008/04/armada-holland-bv-schiedam-denmark-c.html>.

158  The waiver provision contained in the NCP has been found to be constitutional. See eg CSJN, 30 July 1974, ‘UOM de la República Argentina’ (1974) 289 Fallos 158 (Arg); Sociedad de Inversiones Inmobiliarias del Puerto (n 23) rejecting a party’s argument that a waiver of the right to appeal constituted a violation of public policy.

159  NCP, arts 741(4) and 762.

160  See NCP, arts 759–763.

161  See eg CNCom, 30 August 2001, Industrial e Inversiones Orión SA y otra v Arcor SAIC 198 El Derecho 460 (Arg), held to be unconstitutional on due process grounds a ruling on leave of appeal without having heard first the other party to the arbitraition.

162  See eg Spinillo and Vogelius (n 1) 53; cf Nemesio Antonio (n 139) explaining that the court will limit itself to considering whether the arbitral award exhibits the defects that have been pleaded.

163  See Law No 48, 14 September 1863, BO, art 16 (Arg) <http://www.infoleg.gov.ar/infolegInternet/anexos/115000-119999/116296/texact.htm>. See eg CSJN, 28 July 1983, Gas del Estado v EPTM et al (1983) 305 Fallos 963 (Arg); Yacimentos Petroliferos Fiscales (n 144); cf CSJN, 24 August 2006, Cacchione, Ricardo Constantino v Urbaser Argentina SA [2007-A] La Ley 552 (Arg), outlining the procedure that must be followed to bring a writ of error before the Supreme Court.

164  NCP, art 771. See eg SA La Razón EEFIC & A (n 25).

165  A fine may not be imposed on a party that brings a challenge against the award of an amiable compositeur. CNCom, 30 April 1952, Toricella, Lorenzo v Alberto, Serafín, y otros 68 La Ley 264 (Arg).

166  See eg CNCom, 24 October 1960, Gerola e Iriart, SA v Delta Industrial y Comercial, SA 102 La Ley 581 (Arg) adopting the reasoning of the trial court that ‘an arbitral award which cannot be challenged by means of a motion is enforceable...[based on the principle] that a judicial act which is not manifestly null is presumed to be presumed to be valid’.

167  See NCP, art 761:

Vacatur of the award. An award shall be void if its resolutory part were to include decisions that are incompatible inter se. Code provisions applicable to the nullity of judicial proceedings shall apply in order to fill existing gaps. If the proceedings were conducted without problems and the nullity were to affect the award only, the judge may, upon petition, render a judgment, which shall be subject to challenge in accordance with the ordinary procedure.

168  See eg CSJN, 20 October 1908, ‘Basavilbaso, JJ y R (su sucesión) v Provincia de Buenos Aires,’ (1908) 110 Fallos 185 (Arg) convening a new tribunal of amiable compositeurs to resolve the parties’ dispute.

169  See eg CNCom, 2 July 2011, Pelatti, Juan Bautista v Curcija SA (Arg).

170  See eg Red de Monitoreo SRL (n 143) issuing a judgment on a motion to nullify the award of de jure arbitrators within two months; Industrial e Inversiones Orión SA (n 161) issuing a judgment on a motion to nullify the award of de jure arbitrators within seven months. SA La Razón EEFIC & A (n 25) issuing a judgment in an action for nullification of amiable compositeurs within seven months.

171  eg it took the Supreme Court of Justice almost two and half years to render a judgment in Mobil Argentina SA v Gasnor SA (n 25).

172  See eg CNCiv y Com, 26 August 2003, Administración de Usinas and Transporte Eléctrico del Uruguay v Centro Puerto SA (Arg), enjoining enforcement of an arbitral award until a jurisdictional dispute between the Arbitral Tribunal and the Court could be resolved by the CSJN; CNFed, 5 May 2005, Estado Nacional—Procuración del Tesoro v Tribunal Arbitral-Laudo (Arg), enjoining enforcement of an award under the New York Convention, Art 5(1) until the petitioner’s request that the award be nullified by an Argentine court could be adjudicated.