The Role and Regulation of International Commercial Arbitration in Argentina

Article excerpt

SUMMARY

I. INTRODUCTION .................... 796

II. ROLE OF AND REASONS FOR ARBITRATION .................... 796

A. Goals, Advantages, and Disadvantages of Arbitration as an Alternative to the Adjudicative Process .................... 796

1. Goals .................... 796

2. Advantages .................... 796

3. Disadvantages .................... 797

B. Advanlageousness of Arbitration in Argentina 's Legal System .................... 797

III. HISTORICAL DEVELOPMENT OF ARBITRATION IN ARGENTINA .................... 798

IV. NATIONAL REGIME OF ARBITRATION REGULATION .................... 799

A. General, Domestic-Oriented Statutes and case Law .................... 799

1. Contractual Arbitration Clauses and Agreements to Arbitrate (La Clausula Compromisorias y El Compromiso Arbitral) .................... 800

2. Getting an Arbitration Started and Procedure .................... 801

3. Arbitration Panel Authority and Arbitrator Requirements .................... 801

4. Role of the Courts .................... 802

B. International-Oriented Code Provisions, Constitutional Provisions, and Case Law .................... 803

V. CONVENTIONS AND TREATIES AFFECTING INTERNATIONAL COMMERCIAL ARBITRATION IN ARGENTINA .................... 804

VI. INTERNATIONAL ORGANIZATIONS UTILIZING ARBITRATION OF WHICH ARGENTINA IS A MEMBER STATE .................... 805

A. Argentina and the Mercado Comun del Sur (MERCOSUR) .................... 805

B. Argentina's Assorted Other NGO Memberships .................... 805

C. The United Nations Commission on International Trade Law (UNCITRAL) .................... 809

1. UNCITRAL Model Rules on Arbitration .................... 810

2. UNCITRAL Model Law on International Commercial Arbitration .......... 810

3. UNCITRAL's Impact in Argentina .................... 812

VII. CONCLUSION .................... 812

I. INTRODUCTION

Arbitration has become a cornerstone for resolution of disputes in the international trade and commerce community.1 Exploring arbitration in the context of the modern legal environment of Argentina provides an ideal case study of the use of international commercial arbitration because of the country's extensive participation in international organizations and conventions and its thorough, yet evolving, national legislation on the subject. The elements necessary to understand arbitration in Argentina include its history, politics, the characteristics of arbitration itself, national codes and statutes, international treaties and conventions, and various international organizations that engage in or regulate arbitration among various entities.

II. ROLE OF AND REASONS FOR ARBITRATION

A. Goals, Advantages, and Disadvantages of Arbitration as an Alternative to the Adjudicative Process

1. Goals

The goals of arbitration can be measured by the interests of the parties who resort to arbitration to solve a dispute. Parties in arbitration want standardized, recognized rules that they can agree on and modify.2 They want a process whose resolution will be enforceable and that courts will assist in where necessary. Scholars argue that the best way to ensure that these goals are met is through "a combination of contractual texts on arbitral procedure and suitable legislation ensuring proper functioning of arbitration."3 Argentina seeks to accomplish this through national legislation, a variety of international agreements, and membership in international organizations that use or encourage arbitration as a dispute resolution mechanism.4 All of these efforts demonstrate a willingness on the part of Argentina to participate in and support international commercial arbitration within its borders and as it involves its citizens and business entities, but the result may be described as a rather confusing amalgamation of regulations addressing arbitration. …