Commercial Arbitration: Challenges and Trends in Business Involving Argentina
In this, the first of seven podcasts on international arbitration in Latin America from Baker McKenzie and Trench Rossi Watanabe, Luis Dates, regional chair of Baker McKenzies dispute resolution practice group in Latin America, and Santiago Maqueda, a partner in the Baker McKenzie Buenos Aires office, explore the state of arbitration in Argentina today.
Transformation of the Argentine legal system
In 2015 a new Civil and Commercial Code was enacted, expressly regulating domestic arbitration agreements, including many provisions quite aligned with international practice standards on arbitration. In 2018, a national law on international commercial arbitration was also enacted.
Argentina has become a much friendlier forum in which to arbitrate.
New challenges
There are some controversial provisions of the Civil and Commercial Code that have been subject to interpretation by courts.
The Code established certain potential limits to the parties capacity to agree to arbitration:
- arbitration is limited to matters with international subject matter;
- the waiver of rights is not allowed in addition contracts;
- arbitration is not allowed in consumer contracts; and
- parties cannot waive their right to challenge the award when this is contrary to Argentine law.
Judicial intervention
Recent Supreme Court decisions have supported arbitration and commercial courts have also ruled in favour of arbitration.
The level of judicial intervention in arbitration is more restrictive than in the past.
Challenges going forward
There are different judicial interpretations of the incorporation of arbitration clauses in addition contracts. A recent decision rejected the inclusion of arbitration clauses, even when it was proved that the parties negotiated the applicable procedural rules and the seat of arbitration.
There are also challenges regarding the enforcement of interim injunctions. Recently, the Commercial Court of Appel rejected the enforcement of an interim injunction ordered by an arbitration panel based in Arizona because the New York Convention makes no mention of the enforcement of interim measure ordered by arbitrators.
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