Arbitration in Latin America: Overcoming Traditional Hostility (An Update)
Arbitration in Latin America: Overcoming Traditional Hostility (An Update)
University of Miami Inter-American Law Review 0 1
Horacio A. Grigers Naón 0 1
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1 Horacio A. Grigers Naón, Arbitration in Latin America: Overcoming Traditional Hostility (An Update) , 22 U. Miami Inter-Am. L. Rev. 203 (1991) Available at:
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HORAcIo A. GRIGERA NA6N*
I. INTRODUCTION .............
. ....................................
...
II. REGULATIONS OF COMmERCIAL ARBITRATION IN LATIN AMRICA .............
Advantages of the Compromiso ...............................
E. Nationality of Arbitrators........................................
F.
Leave to Enforce and Means of Recourse .........................
ARBITRATION IN LATIN AMERICA:
OVERCOMING TRADITIONAL HOSTILITY
(AN UPDATE)
* Member of the International Court of Arbitration of the International Chamber of
Commerce and the London Court of International Arbitration. Counsel, International
Finance Corporation, Washington, D.C. Bar Membership: Buenos Aires, New York, and
U.S. Supreme Court. LL.B., LL.D., University of Buenos Aires; LL.M., S.J.D., Harvard
University. Views and opinions herein are the author's and not necessarily those of the
International Finance Corporation.
Earlier versions of this paper were published as International Commercial Arbitration
- Recent Developments, in PRACTICING LAW INSTITUTE, 2 HANDBOOK SERIES No. 447, 375
and in 5 ARE. Ir'L 137 (1989).
The author wishes to express his recognition of the help afforded by the following
colleagues and institutions in collecting part of the materials utilized for writing this paper:
J.A. Giral (Caracas), A. Mendes (Sao Paulo), Pedro Batista Martins (Rio de Janeiro), Leonel
Pereznieto Castro (Mexico), J. Samtleben (Hamburg), Carlos Urrutia Valenzuela(BogotA),
Gilberto I. Boutin (Panama), C~mara de Comercio de Quito (Quito), Corporaci6n
Ecuatoriana de Estudios y Publicaciones (Quito, The Institute for Transnational Arbitration
(Texas). Of course, they are not responsible for any errors incurred or opinions expressed in
this paper.
G. Powers of Arbitratorsand Separability of the ArbitrationClause ...
III. RECOGNrIION AND ENFORCEMENT OF FOREGN Awmuns ....................
Certain Problematic Aspects of Enforcement in Latin America ......
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I.
INTRODUCTION
The way in which Latin America views arbitration has
changed dramatically during the last ten years. This is shown,
inter alia, through the ratification by many Latin American
countries of both the 1958 New York Convention on the Recognition
and Enforcement of Foreign Arbitral Awards' and the 1975
Panama Inter-American Convention on International Commercial
Arbitration.' This change is further evidenced by recent
developments in the Andean Pact 3 and Colombia;4 new Brazilian draft
legislation on commercial arbitration;5 and legislative changes in
Peru,' Mexico, and Venezuela.7 The fact that these changes have
not gone unnoticed is evidenced by the widespread use of arbitral
clauses in contracts to which Latin American private and public
persons or entities are a party. The old idea that Latin American
countries are hostile to arbitration would seem, therefore, no
longer true. In fact, it is more accurate to say that Latin America
as a whole is sympathetic to arbitration. Nevertheless, many of the
present rules applicable to arbitration still need to be adapted to
this new trend. The purpose of this Article is to analyze the
present state of Latin American laws on arbitration in order to assess
1991]
the areas where legislative change is advisable.
Arbitration in Latin America must be studied from two
different vantage points: (
1
) the legal provisions in Latin American
countries regarding commercial arbitration and (2) the legal
provisions in Latin American countries which govern the recognition
and enforcement of arbitral awards rendered abroad.
II. REGULATIONS OF COMMERCIAL ARBITRATION IN LATIN AMERICA
In Latin America there is no distinction between the rules that
govern domestic arbitration and those that control international
arbitration. In this regard, Latin American laws on arbitration
resemble other recent arbitral legislation such as the Netherlands
1986 Arbitration Act,8 which does not discriminate between local
and international arbitrations. In Paraguay,9 Mexico, 0 and
Colombia,"' however, arbitral legislation contained in the procedural
codes does not apply when there exists an international treaty or
convention. This is an exception to the normal practice of applying
domestic legislation to arbitration, either domesti (...truncated)