Arbitration in Latin America: Overcoming Traditional Hostility (An Update)

University of Miami Inter-American Law Review, Dec 1991

By Horacio A. Grigers Naón, Published on 07/01/91

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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 0 This Article is brought to you for free and open access by Institutional Repository. It has been accepted for inclusion in University of Miami Inter- American Law Review by an authorized administrator of Institutional Repository. For more information , please contact 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: Follow this and additional works at: http://repository.law.miami.edu/umialr Part of the International Trade Commons Recommended Citation 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 ...... 241 248 249 251 254 255 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)


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Horacio A. Grigers Naón. Arbitration in Latin America: Overcoming Traditional Hostility (An Update), University of Miami Inter-American Law Review, 1991, Volume 22, Issue 2,