FTAA - NEGOTIATING GROUP ON DISPUTE SETTLEMENT
1. International Agreements
a. Is the jurisdiction a party to the Convention on the Recognition and
Enforcement of Foreign Arbitral Awards, done at New York on 10 June 1958
(New York Convention). If so, are there any reservations? Name the domestic
law that implements these commitments.
Argentina ratified the 1958 New York Convention on March 14, 1989, with
reservations. This convention was approved through Law 23.619. The
reservations relate to the fact that, on the basis of reciprocity, Argentina
will apply the Convention only to arbitral awards made in the territory of
another member country of the Convention on legal issues considered as
commercial under national law. The Convention will be interpreted in
accordance with the principles and clauses of the National Constitution in
force or those resulting from modification.
b. Is the jurisdiction a party to the Convention on the Settlement of
Investment Disputes Between States and Nationals of Other States, done at
Washington on 18 March 1965 (ICSID Convention)? Is there a domestic
implementing law? Is the jurisdiction a party to any bilateral investment
treaties providing for settlement of investment disputes between a state and
a national of another state?
Argentina is a party to the Convention on the Settlement of Investment
Disputes (ICSID). The ICSID Convention was approved through Law 24.353 and
was ratified on October 18, 1994.
c. Is the jurisdiction a party to the Inter-American Convention on
International Commercial Arbitration, signed in Panama on 30 January 1975
(Panama Convention)? Is there a domestic implementing law?
Argentina has ratified the 1975 the Inter-American Convention on
International Commercial Arbitration (Panama Convention). This Convention
was approved through Law 24.322 and was ratified on January 5, 1995.
d. Is the jurisdiction a party to any other international agreement
related to international commercial arbitration?
Intra-MERCOSUR Agreement on International Commercial Arbitration and
Agreement on International Commercial Arbitration Among MERCOSUR, Bolivia
and Chile, approved through Law 25.223 and ratified on March 30, 2000.
a. What is the source of law for international commercial arbitration
within your jurisdiction? Please cite.
Law 23.619 (approving the 1958 New York Convention) and Law 24.322
(approving the Inter-American Convention on International Commercial
b. Does the law contain different rules for domestic and international
At the domestic level, only questions that can be subject to commercial
settlement may be submitted to arbitration (National Code of Civil and
At the international level, the question of arbitrability is controlled by
the rules of the 1958 New York Convention on the Recognition and Enforcement
of Foreign Arbitral Awards, which establishes in Article V that “...The
recognition and execution of an arbitral decision may also be refused if the
competent authority of the State in which the recognition and execution is
requested finds: a. [t]hat the subject of the dispute cannot be settled by
arbitration under the law of that State...” International arbitration
includes the settlement of disputes that go beyond the territorial framework
of the Argentine State, whether because the parties at the time the
agreement was reached had their place of business or principal residence in
different States; or where the site of the arbitration or compliance with a
substantial part of the obligations is beyond the limits of the State.
c. Are there limitations on the types of disputes that may be arbitrated?
Questions involving the civil status and capacity of persons may not be
subjected to arbitration; nor may questions related to the validity or
invalidity of a marriage, unless the settlement favors the marriage; matters
that fall outside of commerce and rights that may not be subject to
contract; no settlements may be made regarding family questions. There may
be no settlements on possible rights of inheritance, nor on the inheritance
of a living person; pursuant to Articles 843, 844, 845 847 and 848 of the
Civil Code of the Republic of Argentina; without prejudice to prohibitions
that may arise from special rules.
d. Does the law specify rules for arbitration or do the parties have
autonomy to set their rules?
There are general rules in the Codes of Procedure of the Nation and the
provinces. Moreover rules are also provided in the procedures of arbitration
centers, including: those of the Chamber of Commerce, the Grain Exchange,
the Stock Exchange, the Association of Notaries Public of the Federal
Capital, and the Bar Association of the Federal Capital. However, such rules
are very broad and on procedure leave room for specific rules agreed upon by
the parties (arbitration agreement).
e. What is the role of the courts during an arbitration? May courts
intervene prior to or during the arbitration process?
Article 753 of the National Civil and Commercial Code of Procedure of
Argentina establishes that “the arbitrators may not issue compulsory or
enforcement measures. They must request a judge to do so, who shall provide
assistance within his jurisdiction so that the process is carried out
rapidly and effectively.” Moreover, the 1975 Panama Convention remits to
f. Can the courts grant interim relief pending the outcome of an
No rules exist in regard to international arbitration.
g. Does the law require citizenship or a particular bar membership for
participation in an arbitral proceeding, as arbiter or representative of a
Part 2 of Article 743 of the National Code of Civil and Commercial Procedure
(CCCP) gives as general requirements for the arbitrator that they be
selected by the litigating parties and that they be of legal age and capable
of fully exercising their civil rights. Article 765 of the CCCP also
establishes that neither judges nor judicial branch officials may act as
At the same time, Article 2 of the 19751 Panama Convention establishes that
“Arbitrators shall be appointed in the manner agreed upon by the parties.
Their appointment may be delegated to a third party, whether a natural or
juridical person. Arbitrators may be nationals or foreigners.”
h. Does the law require that the proceedings be conducted in a particular
The parties shall agree upon the language in which the conflict shall be
resolved. Should they fail to do so, the arbitrator shall decide on the
language to be used.
i. Does the law have mandatory choice of law provisions?
The general rule of the nation’s Code of Civil and Commercial Procedures
sets forth the principle of autonomy with regard to arbitration rules.
Nonetheless, there are special systems that foresee model procedural rules,
e.g., the Grains Exchange Rules.
j. Does the arbitration law prescribe rules for decision making by the
arbiters and the form of an award?
The law does not establish substantive rules for resolving the merits of the
dispute or the form of an award. The Parties may provide guidelines both for
the applicable law and jurisdiction.
k. Is the confidentiality of arbitral proceedings and awards protected by
There are no specific rules in this regard. However, since the parties may
agree, in an arbitral agreement, on the rules of procedure, nothing prevents
them from agreeing upon rules for protecting confidentiality.
l. On what grounds will the courts set aside or decline to enforce an
When the arbitral award is declared invalid for any of the following
reasons: (a) incapacity of one of the parties to enter into the arbitration
agreement; (b) failure to provide notice of the appointment of an
arbitrator; (c) where the award relates to a dispute not envisaged in the
arbitration agreement; (d) that the constitution of the arbitral tribunal or
arbitration procedure have not been carried out in accordance with the
arbitral agreement. (National Code of Civil and Commercial Procedure)
Moreover, the relevant provisions of Article 5 of the 1975 Panama Convention
m. What is the procedure for the enforcement of an award?
Article 753 of the National Code of Civil and Commercial Procedure
establishes that “arbitrators may not issue compulsory or enforcement
measures. They must request a judge to do so, who shall provide assistance
within his jurisdiction so that the process is carried out rapidly and
In addition, the rules of the 1958 New York Convention2 apply, as well as the
rules of the 1975 Panama Convention, which in Article 4 establishes that “An
arbitral decision or award that is not appealable under the applicable law
or procedural rules shall have the force of a final judicial judgment. Its
execution or recognition may be ordered in the same manner as that of
decisions handed down by national or foreign ordinary courts, in accordance
with the procedural laws of the country where it is to be executed, and the
provisions of international treaties.
n. Please list any institutions available within your jurisdiction that
provide international commercial arbitration services. Provide internet
address where available.
In Argentina, several private institutions, such as the Chamber of Commerce,
the Stock Exchange, the Grain Exchange, the Bar Association and Association
of Notaries Public, administer arbitration.
Each of these institutions has an arbitration center, which has rules
governing its procedure and ensuring its operation.
At the provincial level: each province has its own Codes of Procedure; thus,
at the provincial level, there are different arbitration systems that
generally follow national guidelines.
The principal private institutions that administer arbitration are:
1) General Arbitral Tribunal of the Stock Exchange of Buenos Aires:
• Created in 1962.
• Comprised of three permanent arbitrators appointed by the Board of the
Stock Exchange through competition, who serve as arbitrators and amiable
• Recourse to the Tribunal may be had in connection with issues subject to
arbitration; without having to be a member of, or having the contract
registered on, the Exchange.
• The procedure is more expeditious than that of the judicial process.
2) Arbitration Chamber for Grains and Related Products (Rules: Decree
3) Permanent Arbitral Tribunal of the Argentine Chamber of Commerce
4) General Arbitration and Mediation Tribunal, established by the College of
Law and Social Sciences of the University of Buenos Aires and the
Association of Notaries Public of the Federal Capital.
Arbitration Chamber of the Grain Exchange:
General Arbitral Tribunal of the Stock Exchange of Buenos Aires:
3. Alternative Forms of Dispute Resolution (ADR)
a. Are other forms of alternative dispute resolution (mediation,
conciliation) available for the resolution of commercial disputes within
Law 24.573, of Mediation and Conciliation, incorporated in the National Code
of Civil and Commercial Procedure institutes mandatory mediation prior to
any trial (Article 1), with the parties exempt from going through this
procedure if they certify that prior to the commencement of the action there
was mediation before mediators registered by the Ministry of Justice.
b. Does the law or do the courts mandate or encourage the use of ADR in
commercial disputes? Are there any legal impediments to using ADR for the
resolution of commercial disputes?
As specified in the preceding point, Law 24.573 incorporates mandatory
mediation prior to any trial. However, Article 2 of the regulation cited
establishes that this shall not apply in the following circumstances: (1)
Criminal proceedings; (2) Actions involving personal separation and divorce,
annulment of marriage, filliation and parental authority, except for
resulting economic issues. The judge shall divide the proceedings, assigning
the economic part to the mediator; (3) Proceedings to determine incapacity
and of rehabilitation; (4) Proceedings in which the national State or its
autonomous bodies are party; (5) Appeal for relief, habeas corpus and
injunctions; (6) Precautionary measures pending the decision on such a
matter, with the relevant ordinary remedies having been exhausted, followed
by a continuation of mediation procedures; (7) Preliminary procedures and
evidence produced before a trial; (8) Inheritance and voluntary proceedings;
(9) Reorganizations in bankruptcy and bankruptcies; (10). Actions before the
National Labor Courts. Moreover, Article 3 of Law 24.573 establishes that in
the case of eviction, use of mediation is optional.
c. Can courts enforce agreements to mediate or use other forms of
non-binding dispute resolution in commercial disputes?
Yes, if there is a mediation agreement.
d. Are there any organizations that specialize in ADR for commercial
disputes not already mentioned?
The National Ministry of Justice has a center for training mediators and a
Registry of Mediators (instituted by Law 24.573). There are also several
private institutions specializing in ADR, under the Bar Association of the
Federal Capital, the Association of Lawyers of Buenos Aires, and the
Association of Notaries Public, among many others.
e. What rules govern confidentiality and admissibility of evidence in
Article 11 of Law 24.573 establishes that “proceedings shall be
confidential. The mediator shall have broad freedom to meet with the
parties, either jointly or separately, taking care not to act in a manner
that favors either party and bearing in mind the responsibility of
maintaining confidentiality. At such sessions, the parties must attend in
person, and may not be represented by others, except in the case of legal
persons and those domiciled in a foreign jurisdiction in accordance with the
provisions of the regulation. Assistance by legal counsel shall be
4. Legal Sources and References
In addition to the references above is there an authoritative Internet
site containing up-to-date information on dispute resolution facilities
available in this jurisdiction?
Arbitration Chamber of the Grain Exchange:
General Arbitration Tribunal of the Stock Exchange of Buenos Aires:
Please list respected reference works relating to arbitration and ADR in
• SPINILLO Alessandro, Arbitraje comercial internacional del Mercosur, in
“La Ley” t. 1999-C, p. 930.
• NOODT TAQUELA María Blanca, ¿Quién designará a los árbitros cuando entren
en vigencia los acuerdos del Mercosur?, in “La Ley” t. 1999-F, p. 1226
• FELDSTEIN DE CÁRDENAS Sara, LEONARDI DE HERBÓN, Hebe “El Arbitraje,” Edic.
Abeledo Perrot 1998
• FELDSTEIN DE CÁRDENAS Sara, LEONARDI DE HERBÓN, Hebe “Arbitraje Interno e
Internacional: Una mirada al futuro,” Edic. Abeledo Perrot 1993
• SANTANA Jorge Luis “Derecho Arbitral,” La Ley, T. 1993-A
• DI GIOVAN Iliana, “Derecho Internacional Económico,”Chapter XI Solución de
Controversias en el Derecho Internacional Económico – Arbitraje, pp. 311 to
327, Edit. Abeledo Perrot, Buenos Aires, 1992.
• GOLDSCHMIDT Werner, Jurisdicción internacional en contratos
internacionales, in “La Ley” t. 1986-D, p. 46.
• BOGGIANO Antonio, “Derecho Internacional Privado”, vol. II, Chapter. XXVI
Arbitraje Comercial Internacional pp. 1311 to 1327; Chapter . XXVII
Reconocimiento y Ejecución de Sentencias Extranjeras pp. 1329 to 1341, Edic.
Depalma, Buenos Aires, 1983.
• PERUGINI Alicia, La acción de amparo y la posibilidad del reconocimiento
de sentencias extranjeras en el Derecho Internacional Procesal Argentino, in
“El Derecho,” t. 133, p. 409.
1 The rules of the 1975 Panama Convention have been incorporated in Argentine law; thus, their precepts apply to arbitration between individuals of countries that have ratified the Convention. el Expediente 2, folio 173, versión
confidencial, v 13 págs. 14-41.
2 This Convention has also been incorporated in the domestic legislation and
therefore governs the enforcement of arbitral awards made in countries that have
ratified that Convention.