Domestic versus International Arbitration: Reasons for Unified or Separate Laws. Latin American countries. 4 September 2015

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1 4 September 2015 Domestic versus International Arbitration: Reasons for Unified or Separate Laws Latin American countries Eduardo Silva Romero Partner Dechert (Paris) LLP 2014 Dechert LLP

2 Monist regimes Country Regime Act Based on the UNCITRAL Model Law? Peru Monist Act No (2008) Yes, with the 2006 Venezuela Monist Act No (1998) Yes, but without the 2006 Mexico Monist Code of Commerce, Part Four (1889) Yes, but without the 2006 Panama Monist Act No. 5 (1999) Yes, but without the 2006 Paraguay Monist Act No (2002) Yes, but without the 2006 Dominican Republic Monist Act No (2008) Yes, but without the 2006 Brasil Monist Act No (1996) Yes, but its scope of influence is unclear Bolivia Monist Act No (1997) No Argentina Monist Act No (2015) No 2

3 Dualist regimes (I) Country Regime Act Based on the UNCITRAL Model Law? Chile Dualist Domestic Arbitration: Organic Code of Tribunals (1943); Code of Civil Procedure (1902) International Arbitration: Act No (2004) Colombia Dualist Domestic Arbitration: Act No (2012) International Arbitration: Act No (2012) Yes, but without the 2006 Yes, with the 2006 Costa Rica Dualist Domestic Arbitration: Act No (1997) International Arbitration: Act No (2011) Yes, with the

4 Dualist regimes (II) Country Regime Act Ecuador Dualist Domestic Arbitration: Act No (2006) International Arbitration: Act No (2006) Based on the UNCITRAL Model Law? No Uruguay Dualist Domestic Arbitration: Act No (1988) International Arbitration: Governed by international treaties No 4

5 Rationale for a dualist regime: Chile The contractual nature of international arbitration conflicts, occasionally, with the jurisdictional nature conferred to domestic arbitration by certain legal systems. One of the clearest examples is provided by Chilean law, where the eminently jurisdictional nature of certain instruments ingrained in the nineteenth century codes of civil procedures forced the legislator to promote a specific regulation for international arbitration, which was developed in parallel to the rules governing domestic arbitration. A. P. Rey Vallejo, Los Modelos Regulatorios del Arbitraje Latinoamericano: un análisis de las normativas de arbitraje doméstico en Colombia y en el Hemisferio In Chile, where a dualist system was also chosen, the discussion was not held in these terms, but rather in how ingrained arbitration was in important legal sectors and in the peculiar understanding that the Code of Civil Procedure has about arbitration. For Chilean legal practitioners, the reasons set forth for the adoption of a monist regime in other countries such as Spain were not at all justified in Chile, as evidenced by the use of the arbitration legislation for more than a hundred years, which has reached its goals with extraordinary efficiency in the domestic realm and there is no convincing reason for it to be modified. J. C. Fernández Rozas, El Arbitraje Internacional y sus Dualidades 5

6 Rationale for a dualist regime: Colombia This is not the place to opine on the benefits of choosing a dualist regime and dismissing a monist arbitration regime in a country. It is enough to say, therefore, that, in our opinion, the deep Colombian procedural tradition that has always dominated in domestic arbitration makes it at least inefficient and inconvenient, for numerous reasons, to seek to apply the rules and practices of international arbitration to domestic arbitration in our country. We believe that domestic arbitration has worked well in Colombia and, for this reason, radically changing its regime ( ) could be a mistake. E. Silva Romero, De la calificación del arbitraje de internacional en el Estatuto de Arbitraje Nacional e Internacional colombiano Prior to the enactment of Law 1563 of 2012, the dual system in place in Colombia allowed for certain procedural loopholes that were not always properly addressed. Law 315 of 1996, which used to govern international arbitration in Colombia, was structured around just five provisions. Although Law 315 initially served its purpose, improvements were required. For instance, local courts applied domestic arbitration provisions to international arbitration cases in situations where Law 315 did not establish a procedure to follow. Extending the rules designed for domestic arbitration to international arbitration may lead to unpractical and unfortunate situations. C. B. Galvis, The Latin American Choice Between Monism and Dualism 6

7 Rationale for a monist regime: Peru [a]lthough we have recommended, for Argentina, to separate the rules governing international arbitration from those governing domestic arbitration, the stage of development and cultural acceptance of arbitration in Peru justify this decision [of adopting a monist regime]. Indeed, although no official statistics have been established regarding the number of arbitration proceedings that take place each year in Peru ( ) since the enactment of the 1996 GAA [General Arbitration Act], the practice of arbitration in Peru has grown significantly year after year, both among private agents and between them and the Peruvian Government. F. Cantuarias y R. Caivano, La Nueva Ley de Arbitraje Peruana: Un nuevo salto a la modernidad This Act (the New General Arbitration Act) aims to comply with the Free Trade Agreement [signed with the United States], improving the regulation of arbitration and, in particular, that related to the arbitration agreement and the enforcement of arbitral awards, aligning itself with the international standards provided for in the 1958 Convention on the Recognition and Enforcement of Foreign Arbitral Awards and the 1975 Inter-American Convention on International Commercial Arbitration. Preamble of the General Arbitration Act 7

8 Requirements to sit as arbitrator Domestic Arbitration Art. 3, Act (Ecuador) For awards to be rendered in arbitrations in law, arbitrators shall apply the law, the universal principles of law, case law and doctrine. In this case, arbitrators shall be lawyers Art. 20, Act 7727 (Costa Rica) For arbitrations in law, the tribunal will be composed, exclusively, of lawyers and it shall decide the dispute in strict compliance with the applicable law International Arbitration Art. 22(1), Act 1071 (Peru) In international arbitration, in no case it is required to be a lawyer to sit as arbitrator Art. 73, Act 1563 (Colombia) On the appointment of arbitrators in international arbitration: ( ) 2. The arbitrators may or may not be lawyers 8

9 Authority of the arbitral tribunal Domestic Arbitration International Arbitration Art. 58, Act 1563 (Colombia) Authority to conduct proceedings Art. 18, Act 5 (Panama) In case the parties have not established rules or if the chosen arbitration centre lacks duly approved procedural arbitration rules, the rules established in this law for each case shall be applied Similar provisions: Art. 628, Code of Civil Procedure (Chile); Arts , Act (Ecuador) The proceedings will be conducted either according to the parties agreement or to the applicable rules. In the absence of either of these, the proceedings will be conducted as the arbitral tribunal deems appropriate Similar provisions: Art. 19, Act (Chile); Art. 42, Act (Ecuador) Art. 40, Act 1071 (Peru) Exclusive authority to grant interim measures Art. 9, Act (Chile) The arbitral tribunal has jurisdiction to rule on the merits of the dispute and on any other related and incidental matters that may arise during the arbitral proceedings Similar provisions: Art. 8, Organic Code of Tribunals (Chile) It shall not be incompatible with an arbitration agreement that a party, before or during arbitral proceedings, requests provisional measures from a court or that the court grants these measures Similar provisions: Art. 71, Act 1563 (Colombia); Art. 47(9), Act 1071 (Peru) 9

10 Challenge of the award and waivers Domestic Arbitration International Arbitration Arts. 40 and 45, Act 1563 (Colombia) Challenge of the award Art. 34, Act (Chile) Art Arbitral awards can be challenged through the extraordinary writ of annulment Art The award and the decision ruling upon its annulment can be challenged through the extraordinary writ of revision Similar provisions: Art. 239, Organic Code of Tribunals (Chile) An arbitral award can only be challenged in court through an annulment proceeding, according to paragraphs 2) and 3) of this Article Similar provisions: Art. 107, Act 1563 (Colombia); Art. 34, Act 8937 (Costa Rica) Art. 64, Act 7727 (Costa Rica) Waiver of the right to challenge the award Art. 36, Act 5 (Panama) An arbitral award can only be challenged through the writs of annulment and revision. These actions cannot be waived. Similar provisions: Art. 36, Act 5 (Panama) If the arbitration proceeding is an international commercial arbitration according to this Act, the parties may agree, or the arbitration rules provide for, the waiver of the right to annulment. Similar provisions: Art. 107, Act 1563 (Colombia) 10

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