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URUGUAY 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. Uruguay is a party to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, to which it acceded without declaration or reservation. The Convention was approved by Decree Law No. 15.229, of December 11, 1981, and the instrument of accession was deposited on March 30, 1983. b. cIs 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? 1. Uruguay is a party to the International Convention on the Settlement of Investment Disputes Between States and Nationals of Other States (Washington, 1965). This Convention was approved by Law No. 17.209, of September 24, 1999. The instrument of ratification was deposited on August 9, 2000, and took effect on September 8 of that same year. 2. Uruguay has signed a number of bilateral agreements for the reciprocal promotion and protection of investments:
Moreover, Uruguay has subscribed to other bilateral investment agreements with Israel, Malaysia, Mexico, Panama, and Venezuela, that have not yet entered into force. 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? Uruguay is party to the Inter-American Convention on International Commercial Arbitration of 1975. This Convention was approved by Decree Law No. 14.534 of June 22, 1976, and the instrument of ratification was deposited on April 25, 1977. d. Is the jurisdiction a party to any other international agreement related to international commercial arbitration. 1. Uruguay is also party to the Inter-American Convention on Extraterritorial Validity of Foreign Judgments and Arbitral Awards of 1979. This instrument was approved by Decree Law No. 14.953 of December 12, 1979, and the instrument of ratification was deposited on May 15, 1980. 2. Within MERCOSUR, Uruguay signed the “International Commercial Arbitration Agreement of MERCOSUR” and the “Agreement on International Commercial Arbitration among MERCOSUR, Bolivia and Chile” on July 23, 1998, in the city of Buenos Aires. Both instruments are currently under consideration in Parliament. Neither has yet come into force. Similarly, specifically on investments, Uruguay signed the “Protocol for the Reciprocal Promotion and Protection of Investments in MERCOSUR” (Colonia, January 17, 1994) and the “Protocol on the Promotion and Protection of Investments from non-MERCOSUR States” (Buenos Aires, August 5, 1994), approval of which is currently being considered by Parliament. The latter instrument has now been in force between Argentina and Paraguay since April 13, 1996. 2. Arbitration a. What is the source of law for international commercial arbitration within your jurisdiction? In the case of countries with which Uruguay is not bound by treaties or conventions, the following domestic sources apply for international commercial arbitration: 1. Articles 502 and 543 of the General Code of Procedures (Law No. 15.982 of October 18, 1988, hereinafter GCP), which provides as follows: Article 502. Enforcement of foreign arbitration. Awards issued by foreign arbitration tribunals can be enforced in Uruguay in accordance with treaties or laws on the enforcement of foreign judgments, where applicable. Article 543. Foreign arbitral awards.The provisions of this Chapter [on the recognition and enforcement of foreign judgments] shall be applicable to awards granted by foreign arbitral tribunals wherever appropriate. 2. Law 16.906, which contains rules relating to declaration of national interest, and the promotion and protection of investments made by national and foreign investors in national territory, includes the following rule on dispute settlement [Article 25]: Any dispute concerning the interpretation or application of this law, arising between the State and an investor that has obtained the Promotional Declaration (“Declaración Promocional”) from the Executive Power,, may be submitted, at the choice of either party, to one of the following procedures: A) to the competent courtWhen a choice has been made to submit the dispute to one of these procedures, such choice will be definitive. The provisions set out in the preceding paragraphs shall be applicable with respect to foreign investors in the absence of a treaty, protocol or international convention on dispute settlement in force when the dispute arises.
3. Articles 472 to 507 of the GCP regulating the
different aspects of the arbitration process. Settlements referred to in Articles 472 to 507 of the GCP, mentioned above, relate to domestic arbitration. Nonetheless, the same can also be applied to international arbitration. The most significant difference regulating domestic and international arbitration seems to be at the stage of award enforcement, in that for international arbitration, in conformity with the remission to Article 543 of the GCP, the enforcement of the foreign arbitral award would require the procedure of exequatur. c. Are there limitations on the types of disputes that may be arbitrated? Article 472 of the GCP establishes generally: “Any individual or collective dispute may be submitted by the parties for resolution by an arbitration tribunal, unless this is expressly prohibited by law. The law recognizes the full legality of awards issued by arbiters appointed either by the parties or by a judicial court, as well as those handed down by tribunals established by arbitration chambers to which the parties submit.” Nonetheless, Article 476 of the GCP provides that “issues on which settlement is prohibited may not be submitted to arbitral proceedings.” Under Article 223 (ii) of the GCP, “the tribunal will approve any conciliation or settlement relating to disposable assets, as long as it adheres to the substantive requirements and nature of the law in litigation …” Therefore, issues on which the parties may not freely decide, may not be submitted to arbitration (e.g. the marital status of persons). b. Does the law contain different rules for domestic and international arbitration? Settlements referred to in Articles 472 to 507 of the GCP, mentioned above, relate to domestic arbitration. Nonetheless, the same can also be applied to international arbitration. The most significant difference regulating domestic and international arbitration seems to be at the stage of award enforcement, in that for international arbitration, in conformity with the remission to Article 543 of the GCP, the enforcement of the foreign arbitral award would require the procedure of exequatur. c. Are there limitations on the types of disputes that may be arbitrated? Article 472 of the GCP establishes generally: “Any individual or collective dispute may be submitted by the parties for resolution by an arbitration tribunal, unless this is expressly prohibited by law. The law recognizes the full legality of awards issued by arbiters appointed either by the parties or by a judicial court, as well as those handed down by tribunals established by arbitration chambers to which the parties submit.” Nonetheless, Article 476 of the GCP provides that “issues on which settlement is prohibited may not be submitted to arbitral proceedings.” Under Article 223 (ii) of the GCP, “the tribunal will approve any conciliation or settlement relating to disposable assets, as long as it adheres to the substantive requirements and nature of the law in litigation …” Therefore, issues on which the parties may not freely decide, may not be submitted to arbitration (e.g. the marital status of persons). d. Does the law specify rules for arbitration or do the parties have autonomy to set their rules? Article 477 of the GCP provides that the arbitral agreement among other things shall contain: “4) Arbitration procedure. If nothing is stated on this particular issue, the provisions of Article 490 shall apply.Article 490, entitled “Freedom of procedure” states: “The parties may agree on the procedure they consider most appropriate. If nothing is stated in this regard, or if there is no special provision in the procedure indicated, the provisions established for ordinary proceedings in this Code shall be applied by the arbitrators.(…)” Finally, Articles 503 to 507 of the GCP regulate “single arbitration,” in which the parties agree to submit the disputed issue to resolution by one person, proceeding in accordance with Articles 480 to 502, or in a less formal way (regulated in Articles 504 and 505 of the GCP) e. What is the role of the courts during an arbitration? May courts intervene prior to or during the arbitration process? 1. The ordinary courts may intervene before the arbitral process: (i) At the stage of the constitution of the tribunal:2. The ordinary courts may also intervene during and even after the arbitral process: i) At the evidence stage: f. Can the courts grant interim relief pending the outcome of an arbitration? Yes, in the case of the aforementioned Article 488 of the GCP (see answer 2.e.1.iii) g. Does the law require citizenship or a particular bar membership for participation in an arbitral proceeding, as arbiter or representative of a party? 1. Requirements to be an arbiter h. Does the law require that the proceedings be conducted in a particular language? The GCP does not contain express provisions regarding the language in which the arbitral proceedings are to be carried out. However, Article 65 of this Code establishes in a general sense that “in all procedural steps Spanish must be used. When it is necessary to hear someone who does not speak Spanish, the court shall appoint an interpreter.” Accordingly, for procedures that have to be carried out before the ordinary courts of the Republic, this requirement must be fulfilled. In addition, bearing in mind the provisions of the aforementioned Article 490 of the GCP, according to which the rules of ordinary proceedings shall apply for anything not provided for by the parties or the arbiters, if the parties have not established anything in this regard in the arbitration agreement, the arbitral procedure should be carried out in Spanish. In the private sector, Article 7 of the Arbitration Regulation of the Conciliation and Arbitration Center, International Court of Arbitration for MERCOSUR, of the Uruguayan Stock Exchange, states: “1)Unless otherwise agreed by the parties, the language of arbitration will be the language of the arbitral clause, except where the arbitral court decides otherwise, in the light of observations made by the parties and the circumstances of the arbitration. 2) The arbitral court may require attached documents in support of the written claim or reply, as well as any other document or complementary instruments presented during the proceedings in their original language, to be accompanied by a translation into the language of the arbitration.” i. Does the law have mandatory choice of law provisions? No. j. Does the arbitration law prescribe rules for decision making by the arbiters and the form of an arbitration award? This point can be answered by repeating the reply given in 2 d). Article 477.5 of the GCP states that the parties shall decide — in principle— whether arbitration shall be in law or in equity. In the absence of any pronouncement by the parties, the arbiters shall decide in equity. It is also the responsibility of the parties to decide the time period for issuing the award (Articles 477.6 and 496 of the GCP); failing this, it must be decided within 90 working days as from the first proceedings of the arbitral tribunal, unless the parties agree to suspend proceedings. Article 496.3 provides that the award shall be decided by majority vote. If a majority cannot be achieved, the award shall be granted on issues on which there is a majority, with judgment being reserved on the other points until the parties appoint a new member of the tribunal k. Is the confidentiality of arbitral proceedings and awards protected by law? There are no express provisions on this point in the General Code of Procedures. It may be relevant to mention that, in the private sector, the Arbitration Rules of the Conciliation and Arbitration Center, International Court of Arbitration for MERCOSUR of the Uruguayan Stock Exchange, contains the following rules on confidentiality: Article 46. Confidentiality of the existence of arbitrationl. On what grounds will the courts set aside or decline to enforce an award? In the case of foreign arbitral awards originating in States with which Uruguay is not bound by Convention or Treaty, by remission of Article 543, Article 539 of the Code shall be applicable. This sets out the formal, procedural and substantive requirements which the judgment (or arbitral award) must satisfy, and over which —in the event of a sentence—the Supreme Court must exercise control: 1. Formal requirements:To request enforcement of the award, Article 539.2 of the GCP requires presentation of authenticated copies of the award, together with the elements necessary to evidence notice to the defendant and due defense of the parties, as well as authenticated copy of certification that the award is definitive. m. What is the procedure for the enforcement of an award? 1. Domestic arbitral awards The procedure for enforcement of domestic arbitral awards is regulated in Article 498.1 of the GCP. Judges with competency for enforcement, in accordance with the aforementioned Article 494, are those that would have heard the case in the absence of an arbitration agreement. The enforcement procedure is set out in Article 371 to 401 of the GCP (see copy attached). 2. Foreign arbitral awards. In cases where there is no treaty or convention (Articles 503 and 543 of the CGP), Articles 537-541 (on recognition and enforcement of foreign judgments) shall apply to arbitral awards. The enforcement of a foreign arbitral award ordering one of the parties to give or do or not do something, must be submitted to the Supreme Court of Justice (Article 541.2). Once the request has been made, service of process shall be made on the party against which the enforcement is being sought, providing that party 20 days to respond. Subsequently, the award shall be reviewed by the examining magistrate and a ruling made, with no further appeal possible. If the execution is enforced, it shall be submitted to the competent court so that it may undertake procedures appropriate to the nature of the award (enforcement process envisaged in Articles 371-401 of the CGP mentioned previously). n. Please list any institutions available within your jurisdiction that provide international commercial arbitration services. Provide internet address where available. In the private sector, there is the Conciliation and Arbitration Center, of the Court of International Arbitration for MERCOSUR, of the Uruguayan Stock Exchange (www.arbitraje.com.uy). Article 1 of the “Arbitration Rules” of this institution, defines the latter as “the body created by the Stock Exchange within its organization, with the aim of administering national and international conciliation and arbitration processes submitted to it, and appointing conciliators and arbiters when the parties have so agreed.” 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 your jurisdiction? Articles 293 to 298 of the GCP regulate the conciliation mechanism, which is used for resolving civil, commercial and labor disputes. In the private sector, there is also the conciliation mechanism at the Conciliation and Arbitration Center, of the Court of International Arbitration for MERCOSUR of the Uruguayan Stock Exchange. This mechanism is regulated in the “Conciliation Rules.” 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? Article 293 of the GCP establishes, as a general rule, the requirement to convene a hearing to attempt conciliation with the future defendant, who shall be summoned at his domicile. The exceptions to this rule are set out in Articles 293.2 and 294 of the GCP: 1 Procedures not carried out through the ordinary channels (this would include eviction, enforcement, appeal for relief (amparo) and interim relief, expropriation and urgent seizure, and procedures relating to insolvency, agreement with creditors, default, bankruptcy and judicial liquidation of corporations, as well as cases involving divorce and legal separation) (Article 294.3 to 294.5, 294.7, 294.8 and 294.10);It should be added that in labor proceedings, conciliation is carried out through the administrative channel (Article 294.6 and Article 10 of Decree Law 14.188 of April 5, 1974, and complementary provisions) Under Article 490 of the GCP, conciliation must be attempted even prior to the arbitration process, and arbiters are free to propose any type of conciliation mechanism. c. Can courts enforce agreements to mediate or use other forms of non-binding dispute resolution in commercial disputes? Article 297, paragraphs 1 and 2 state: “297.1 Agreed conciliation and agreements made by the parties before the court on that occasion, shall have the same force as final judgment between grantors and their successors by general right. 297.2 Enforcement shall be sought before the competent court.”d. Are there any organizations that specialize in ADR for commercial disputes not already mentioned? In the domain of ordinary justice, Law No. 16.995 of August 26, 1998, states in Articles 4 and 5: Article 4 - The Supreme Court is empowered to make the changes needed to establish courts with exclusive competency in conciliation, deciding the number and category that it deems appropriate, as well as other aspects relating to the organization and functioning of such courts.At the present time, however, the conciliation process is carried out before Justices of the Peace, in accordance with Article 255 of the Constitution of the Republic. In the private domain, there is the Conciliation and Arbitration Center, of the International Court of Arbitration for MERCOSUR of the Uruguayan Stock Exchange. Article 1 of its “Conciliation Rules” states that this body has been created by the Stock Exchange within its organization “in order to administer national and international conciliation and arbitration processes submitted to it, and appoint conciliators and arbiters when the parties so agree.” e. What rules govern confidentiality and admissibility of evidence in other proceedings? The GCP does not contain any express provisions in this regard. In the private domain, Article 8 of the “Conciliation Rules” of the Conciliation and Arbitration Center, of the International Court of Arbitration for MERCOSUR of the Uruguayan Stock Exchange establishes the following: “ 1) The confidential nature of conciliation must be respected by all participants. 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? Internet site of the Conciliation and Arbitration Chamber of the Uruguayan Stock Exchange: www.arbitraje.com.uy 5. - Bibliography Please list respected reference works relating to arbitration and ADR in your jurisdiction. |
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