11/11/2011 - Por Iriberri, Bernardo A.
An extract from The Arbitration Review of the Americas 2012 - a Global Arbitration Review special report - www.GlobalArbitrationReview.com.
It seemed only natural that after devoting our last two contributions to The Arbitration Review of the Americas to issues and developments in the investment arbitration field, our country chapter for this 2012 edition would instead focus on matters concerning commercial arbitration.
Thisshiftisespeciallyfittingaswereviewtheyear2011,which began on a high note right after the end of the January court holidays courtesy of one of the permanent panels of the leading appellate court handling commercial matters in Argentina: the Buenos Aires Commercial Court of Appeal (CNCOM). The CNCOM is divided into six permanent panels or branches (salas), identified with letters A through F, and each panel is in turn composed of three permanent appellate judges. The high note was a decision rendered on 7 February 2011 by Panel D of the CNCOM in the case of Sociedad de Inversiones Inmobiliarias del Puerto SA (SIIPSA) v Constructora Iberoamericana SA (CIB).
In this article, we will comment on some of the salient features of the SIIPSA decision within the context of a broader picture, which has been characterized during the past few years by lights and shadows that seem to do the landscape of commercial arbitration in Argentina. SIIPSA comes more than three years after Panel D of the CNCOM produced another remarkable decision, the widely praised Mobil v Gasnor case, which in turn came three years after the widely criticized Cartellone decision of the CSJN.
A digression on how to diagnose a healthy arbitration environment
It is no secret that to a large extent, the good health of commercial arbitration in any given country will ultimately be measured by the nature of the interactions that flow between that country’s arbitration machinery (arbitrators, arbitral institutions and the businesses and individuals who choose to settle their disputes through arbitration) and the country’s court system. Of course, it helps significantly if the country under review has adopted a modern arbitration legislation, preferably one based on the UNCITRAL Model Law, but the most important and pressing questions one normally asks when assessing the state of affairs of commercial arbitration in a specific country have more to do with whether or not at this point in time certain core concepts of arbitration law have been internalised by the courts. We are referring to concepts and principles such as:
the arbitrability of most (if not all) disputes ultimately involving questions of money, even if the arbitrators – in order to fulfill their jurisdictional task– must examine and apply legal rules and principles that are part of the public policy (ordre public), of the relevant jurisdiction;
the supplementary notion that it is only when the holding of the award is contrary to public policy that the award may be unenforceable or voided;
the principle of the autonomy of the arbitration agreement and its separability from the contract to which it may be incorporated;
the concept that arbitral awards should only be set aside when serious procedural defects have affected the conduct of the arbitration(errors in procedendo) to the point of hampering due process guarantees (this includes extra petita situations);
the reverse of the coin, in other words, that errors in judicando, whether of a legal or a factual nature, should never give rise to the annulment of an arbitral award;
the principle that the parties may waive in advance all ordinary appeals and recourses that may have otherwise been at their disposal, which is a staple in modern institutional rules, acknowledging, however, that the parties may be prevented by law– as it happens under Argentine law– from waiving their right to seek the annulment of the award ,a tool of last resort to ensure that due process has been respected;
the rule that the procedure for obtaining the recognition and enforcement of an arbitral award should never become an opportunity for an overt or covert de novo review of the merits of the case.