Commercial Arbitration: Its Harmonization in International Treaties, Regional Treaties and Internal Law

Penn State International Law Review Volume 27 Number 3 Penn State International Law Review Article 15 5-1-2009 Commercial Arbitration: Its Harmonization in International Treaties, Regional Treaties and Internal Law Elvia Arcelia Quintana Adriano Follow this and additional works at: http://elibrary.law.psu.edu/psilr Part of the International Law Commons Recommended Citation Quintana Adriano, Elvia Arcelia (2009) "Commercial Arbitration: Its Harmonization in International Treaties, Regional Treaties and Internal Law," Penn State International Law Review: Vol. 27: No. 3, Article 15. Available at: http://elibrary.law.psu.edu/psilr/vol27/iss3/15 This Article is brought to you for free and open access by Penn State Law eLibrary. It has been accepted for inclusion in Penn State International Law Review by an authorized administrator of Penn State Law eLibrary. For more information, please contact . Commercial Arbitration: Its Harmonization in International Treaties, Regional Treaties and Internal Law Elvia Arcelia Quintana Adriano* Table of Contents I. II. III. IV . V. VI. VII. VIII. Introduction ................................................................................ 8 18 B ackground ................................................................................ 8 18 W orking H ypothesis .................................................................. 819 Types of A rbitration ................................................................... 819 Legal Framework for Reference in Mexico ............................... 820 National Commercial Arbitration .............................................. 820 Operation of the Arbitration in Mexico ....................... 821 Rules of Arbitration of the Mexico City National Chamber of C om m erce .................................................................................. 83 1 IX. Rules of Arbitration of the United Mexican States Confederation of Industrial Chambers ....................................... 832 X. Regional Arbitration: Treaties Executed by Mexico ................. 832 XI. Arbitration in the MERCOSUR ................................................. 833 XII. Legal Frame for International Reference ................................... 834 XIII. International Conventions on Arbitration and Mediation .......... 834 XIV. Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, June 10, 1958) ............................. 836 XV. Inter-American Convention on International Commercial Arbitration (Panama, January 30, 1975) .................................... 839 * J.D. degree awarded by the National Autonomous University of Mexico. Regular professor by competitive examination of Commercial Law, Economic Law and History of Economic Thought in the LLB Program at the Faculty of Law. She is also a Professor of Commercial Law and Financial Law at the Postgraduate Studies Division at the Faculty of Law and Finances in the Faculty of Accounting and Administration at UNAM. UNAM Lecturer. Regular Researcher by competitive examination in the field of Commercial Law in the Legal Research Institute at UNAM. National University Award 2006 earned in the field of the Teaching of Economic and Administrative Sciences. Member of the National System of Researchers for the National Council of Science and Technology (CONACYT), Mexico. PENN STATE INTERNATIONAL LAW REVIEW [Vol. 27:3,4 X V I. International A rbitration .................................. 841 XVII. Rules of Arbitration of the International Chamber of C omm erce .......................................... 84 1 XV III. C onclusion ....................................... 849 I. INTRODUCTION Some say that Mercantile or Commercial Law should be studied methodologically by examining the subjects or persons who participate; the purpose or field of commerce; the relationship between resources and instruments of commerce; and, finally, the issues or conflicts inherent in the combination of the first three aspects of commerce.' The resolution of conflicts and problems in commerce may occur through a judicial or administrative process, regardless of whether the problems are of an intra-national or cross-border nature. This resolution may include regional or international procedures known as Insolvency Proceedings,2 Commercial Arbitration. Mexican legislation has incorporated the work of an international organization of the United Nations system, the UNCTAD/UNCITRAL,3 and this incorporation is reflected in the current insolvency procedure. In addition, the Commercial Code now includes an arbitration proceeding that reflects this international influence. II. BACKGROUND In abstract terms, the arbitration proceeding is a heterocompositive method: it is an alternative to litigation, yet decided by an impartial third party. In arbitration, a neutral third party delivers a solution to the parties. The arbitrator is not simply a communicator proposes one or several possible solutions; rather, the arbitrator imposes a binding. "However, in order to make arbitration work, it is necessary that the parties had previously accepted, by common agreement, their submission '4 to this form of solution. Title IV of the Mexican Commercial Code defines arbitration as any arbitral proceeding of a commercial nature, regardless whether or not it is brought before a permanent arbitration institution. International arbitration is the proper method when the parties, at the time of entering 1. ELVIA ARCELIA QUINTANA ADRIANO, THE SCIENCE OF COMMERCIAL LAW 1-43 (2d ed. 2003). 2. ELVIA ARCELIA QUtINTANA ADRIANO, INSOLVENCY PROCEEDINGS, DOCTRINE, LAW, JURISPRUDENCE 191-213 (2d ed. 2004). 3. ELVIA ARCELIA QUINTANA ADRIANO, FOREIGN TRADE IN MEXICO: FRAMEWORK, STRUCTURE AND POLICY 152-200, 240-300 (2d ed. 2003). 4. ADRIANO, COMMERCIAL LAW, supra note 1, at 509. LEGAL 2009] COMMERCIAL ARBITRATION into an arbitration agreement, are established in different countries. International arbitration is also proper when (a) the place of arbitration, (b) the place to fulfill with a substantial portion of the obligations contained in the commercial relationship, or (c) the place in which the subject matter of litigation has a greater relationship, is located beyond the borders of the country where the parties are established. III. WORKING HYPOTHESIS This paper's working hypothesis follows the elements necessary for the use of arbitration to resolve a controversy: the existence of an agreement, a commitment clause in the agreement, actual arbitral commitment, and an arbitral or arbitration agreement. The Commitment Clause is a section in the contract in which the parties provide that any legal dispute between them shall be submitted to arbitration for resolution. On the other hand, an Arbitral Commitment is an agreement of the parties after the dispute has arisen: in other words, the parties commit to arbitration after the threat of litigation is imminent. Finally, an Arbitrat (...truncated)