Latin America Overview

National Constitutions and International Arbitration in Latin America: A Dangerous Liaison

The relations between national constitutions in Latin American countries and arbitration have a very long history. Their roots can be traced back to the laws in force before their independence.¹ In the first Latin American constitutions, arbitration was expressly envisaged as a dispute resolution method, particularly for international disputes of public law.

Several of the newly born Latin American countries recognised the principle of peaceful dispute resolution through arbitration at the level of a constitutional rule.² Unfortunately, this favourable relation between constitutions and arbitration was, to a large extent, reversed for historical reasons and initial sympathy shifted to hostility towards international arbitration in the end of the 19th century. The most illustrative example of this change of attitude was the ‘Calvo Doctrine’ implemented in the region through a clause named ‘clause Calvo’, which emerged as a result of diplomatic impositions and an excess of interventionism exerted by developed countries. By means of this clause, aliens investing in or contracting with a state were obliged to relinquish their national protection and to resolve their disputes before the national courts of the host state without immediate access to international mechanisms of dispute resolution.³

This hostility was gradually put to rest with the adoption of international conventions related to recognition of international judgments and international arbitration such as the New York Convention in 1958, the Panama Convention in 1975 and by the adoption of modern laws following the UNCITRAL Model Law for International Arbitration of 1985.⁴ The enactment of such international conventions and the reform of national laws on arbitration, inspired by modern principles, gave arbitration a new and positive outlook in the region.⁵

However, national constitutions have again become important as there is an increasing trend in Latin American countries to directly use their constitutions in the field of international arbitration. The first section below (‘The grounds and the mechanisms’) describes the justification for this direct use and application of national constitutions to international arbitration, and then refers to the different mechanisms that have been implemented across the region to allow such application.

The second section of this article (‘The necessity (or lack thereof)’) examines whether there is any real need to directly apply national constitutions to international arbitration in the region and the consequences of doing so.

The grounds and the mechanisms

Traditionally, the interplay between national constitutions and international arbitration was limited to the incorporation of specific provisions recognising arbitration as mean to resolve international disputes.⁶ The rationale behind was that national constitutions represent the supreme law of the state and as such its sympathy towards arbitration should be reflected in such supreme law.

Indeed, for historical reasons, Latin American countries have shown a legal devotion towards their constitutions as they regard the constitution as the ‘fundamental statute’, inspired by the Kelsenian pure theory of law.⁷ Following this conception, every act of authority and law must be in conformity with the constitution. The main problem or risk stemming from this approach is to consider that national constitutions have replaced legislation as the primary source of law, which may create tensions between the distributive justice, which is generally the role of constitutions, and the commutative justice, which is generally the role of national legislation.⁸

These tensions may explain why the trend to allow the direct application of constitutional provisions in international arbitration has risen and now appears as a phenomenon wider in its scope and and deeper in its consequences than the mere constitutional recognition of international arbitration in Latin America.⁹ One could say that the grounds to allow the application of national constitutions vary from one country to another and any attempt at generalisation would be at least inaccurate. However, certain aspects of constitutional law and its interplay with international arbitration have emerged in different countries with similar justifications and features.

Among these new points of contact between national constitutions and international arbitration, it is possible to identify different layers, including the constitutional protection of fundamental rights that may be affected in international arbitration, constitutional limitations or prohibitions imposed on states or state entities or instrumentalities to resort to arbitration, treatment of arbitrators as national judges on the basis of a constitutional recognition of the status of the arbitrator as that of a judge, and constitutional control of national laws on arbitration by state or constitutional courts.

Constitutional protection of fundamental rights

The birth of constitutional procedural law is a recent phenomenon in Latin America, whose main purpose is to provide specific mechanisms and remedies to protect fundamental rights in the different fields in which they may be exposed to violations, including judicial procedures.¹⁰ Thus, mechanisms such as the acción de amparo o tutela or recurso de protección have been implemented at the level of national constitutions with this purpose in mind.

In certain countries, this justification has led, by analogy, to allowing the constitutional protection of fundamental rights in arbitration when there are allegations that such rights have been violated. That was the case in Venezuela in Corporación Todosabor, CA v Häagen-Dazs International Shoppe Company, Inc, where the Constitutional Chamber of the Supreme Court of Justice ruled that it had the power to examine a foreign award through a extraordinary constitutional remedy called amparo constitucional.¹¹ In this decision, the court decided that it could examine an award following the rules of the AAA in Miami, to preserve the national party’s fundamental rights granted by the Venezuelan Constitution.

Another way of protecting fundamental rights constitutionally recognised is to allow the setting aside of arbitral awards in which such rights have been violated. Indeed, the enforcement of foreign awards has been exceptionally refused on the grounds that certain constitutional guarantees related to fundamental rights of individuals have been deemed as part of public policy in the enforcement country which must be respected by the judge of the exequatur. This was the case in a recent decision in Argentina that dealt with an ICC arbitral award. In the Odgen case, Odgen requested the enforcement of the award on costs, which exceeded the award on the principal claims in favour of N&M Eijo in Argentina and the first instance judge granted the enforcement, but pursuant to article 518 of the Argentinian Code of Civil Procedure. On appeal, the Buenos Aires Court of Appeals denied the enforcement on the basis that it was against Argentinian public policy.¹² The court went on to hold that the disproportionate difference between the award on costs and the ultimate success on the principal claims was in clear violation of the constitutional guarantees of due process and the right of defence, in two ways: first, because the award lacked any reasoning to justify an award on costs to Odgen whereas N&M Eijo had partially prevailed in their claims and, second, because to impose an award on costs on the prevailing party that exceeded the amount of its award on the principal claims would amount to a denial of the right of access to justice, a right constitutionally protected in Argentina.¹³

A similar finding is found in José Cartellone Construcciones Civiles SA v Hidroeléctrica Norpatagónica SA o Hidronor SA, though this time in the context of an annulment of an arbitral award.¹⁴ In this case, the Supreme Court set aside an arbitral award due to ultra petita and established, as an obiter, that an award may be set aside if it is against public policy and when it is ‘unconstitutional, illegal or unreasonable’. In other words, the violation of a constitutional rule could be enough to set aside an award. Although this was a domestic case, the same reasoning was later on reproduced in a judicial decision ordering the suspension of an ICC international arbitration in Eriday v Entidad Binacional Yaciretá (the Yaciretá case).¹⁵ A further step has been taken by Argentinian authors who suggest that the Supreme Court could reject the enforcement of arbitral awards rendered in the context of ICSID investment arbitrations if they are contrary to the Argentinian Constitution.¹⁶

In an nutshell, the use of national constitutions to preserve fundamental rights is performed either directly, through constitutional mechanisms, or indirectly, through the setting aside of an arbitral award to the extent that a violation of the constitution amounts to violation of public policy.

Constitutional limitations or prohibitions on the state’s ability to resort to arbitration

In a number of Latin American constitutions there is a prevailing principle that the state and its instrumentalities are only authorised to do what is expressly authorised by the law - the principle of ‘strict legality’- which differs from the principle that governs private relations in which parties can do anything not otherwise prohibited by the law. On this basis, the state and its agencies or entities may have prohibitions or limitations under their national constitutions or laws as to their ability to resort to arbitration.¹⁷

A second path to achieve the same purpose has been to qualify the underlying transaction to which the state or a state entity is a party as a contract of public interest that cannot be validly submitted to arbitration, with the consequence that any dispute is to be decided by the national courts of the state or state entities.

Both mechanisms are part of a wider movement that points to the same goal: an increasing nationalisation of contracts executed by states and their instrumentalities and nationalisation of the disputes arising from them, to allow the national constitutions and the laws in conformity with them to govern the relations between states and the parties with whom they contract.¹⁸

A number of cases have reflected this approach. For example, in Brazil, Companhia Paranense de Energia - Copel v UEG Araucaria Ltda is one of the few reported cases adverse to international arbitration. A first instance judge from the State of Paraná in Brazil ordered the stay of an ICC arbitration conducted in Paris against a Brazilian state entity because the dispute (related to payments due for the construction and operation of an electrical plant) concerned non-disposable rights that fell outside the scope of arbitration as the state respondent was not able to validly submit to arbitration pursuant to Brazilian laws in light of the constitutional principle of strict liability.¹⁹

In the Yaciretá case,²⁰ a similar order was issued by a judge of the Buenos Aires province on the grounds that the rights of the respondent - a bi-national Argentinian-Paraguayan state entity - to participate in the drawing up of the terms of reference in an ICC arbitration was not been respected and that there were public interests compromised that justified the judicial intervention. Again in Argentina in Milantic Trans SA v Ministerio de la Producción - Astillero Río Santiago and other (the Milantric case).²¹ Milantric Trans SA obtained an award against the respondent, a state-owned company, for damages due to breach of a ship building contract and sought its enforcement in Argentina under the New York Convention. The Argentinian state party opposed the enforcement alleging, inter alia, that the award fell outside the scope of the New York Convention as the underling contract was not a commercial one. Initially, the first instance judge rejected the objections and granted enforcement of the award under the New York Convention. Regrettably, however, on appeal the La Plata Court of Appeals, whose jurisdiction was in principle limited to deciding on the costs related to the enforcement, overturned the first instance judge’s decision and held that the New York Convention was not applicable to the present case as the underlying contract involved a state party and thus it could not fall under the definition of a commercial agreement.

In Venezolana de Televisión, CA v Elettronica Industriale SpA, an arbitral award was set aside on the grounds that the dispute came from a contract of public interest over which national courts had exclusive competence under Venezuelan law invoking provisions of the Venezuelan Constitution.²²

All the reported cases have one element in common: the limitations, whether well founded or not, of state parties to submit to arbitration, which stem from the constitutional principle of strict legality, or the lack of arbitrability of a contract involving public interest.

Constitutional treatment of arbitrators as judges

Some reported cases show that arbitrators in Latin America are sometimes considered as judges as to their role, status and the nature of their decisions. The source of this equal treatment of arbitrators as judges is found in national constitutions.

The starting point is generally the same: Latin American constitutions often defined the courts of the state and it is understood that that definition, and in particular the reference to ‘other tribunals established by the laws’ which is found under certain constitutions, would encompass the arbitral tribunals.²³ Under this scheme, the powers of arbitral tribunals would be seen as a derivation of the jurisdictional powers that a state vests upon national judges. Hence, the status of the arbitrators is aligned with that of judges, and extraordinary recourses of a constitutional nature that may proceed against judicial decisions can also be used against arbitral decisions. This has obvious consequences in the field of international arbitration.

This rule of equal or equivalent treatment for judges and arbitrators has led certain countries, such as Chile, to allow the use of a disciplinary action called recurso de queja, which even permits the setting aside of the arbitral award itself if the award was incurred upon a gross abuse or fault. This has been the traditional stance in respect of domestic arbitration, as the arbitral tribunal is considered as part of the tribunals of the state and is thus subject to disciplinary control as exercised by the Supreme Court by virtue of the constitution. Although this special constitutional recourse has not been used yet in any reported international arbitration case, the legislative discussion and comments related to the approval of the 2004 Chilean International Arbitration Act²⁴ show that, when the law was under discussion during the phase of constitutional control, the Constitutional Court included an express indication that the law was approved without prejudice to the disciplinary powers that the Chilean Constitution grants to the Supreme Court, thereby allowing the possibility of using the recurso de queja.²⁵

In a relatively recent case in Argentina, the Supreme Court interpreted a provision allowing a national superior court to determine which specific court has competence to hear and adjudicate a case when two or more judges dispute such competence to also apply to arbitral tribunals. According to the Court, an arbitral tribunal’s claim of jurisdiction on a matter in respect of which a court of law asserts exclusive jurisdiction is to be dealt with as if only courts of law were involved. Thus, a judge claiming jurisdiction to hear a case over which an arbitral tribunal equally asserts jurisdiction should send an inhibitoria to the arbitral tribunal as explained above. Should the arbitral tribunal reject the rogatory request to decline jurisdiction, it is for the superior court - in this case, the Supreme Court of Justice - to finally decide the issue. The arbitrators are prevented from continuing to hear the case until the superior court has decided on the ‘jurisdictional’ conflict. Such an approach clearly implies denying the arbitral tribunal the faculty to decide, without court interference, on its own jurisdiction or, should the arbitral tribunal affirm its jurisdiction, to hear and decide the case on the merits until the jurisdictional conflict has been resolved by the superior court.²⁶

Finally, certain constitutional actions have been allowed against foreign arbitral awards as if they were national court decisions. Insofar as arbitrators are considered as judges, their decisions can be challenged by the same remedies at law as those permitted to challenge the decisions of national judges. In Venezuela, national courts have admitted a constitutional action named amparo directo against an arbitral award in the Venezolana de Televisión, CA v Electrónica Industriale SpA case.²⁷

In Mexico, the amparo has only been admitted against judicial decisions that deal with the enforcement of a foreign award (amparo indirecto), but it has been suggested that the door is now open to exercise an amparo directo to challenge an arbitral award as a result of the recent and much discussed Radio Centro case.²⁸

Constitutional control of national laws on arbitration

The constitutional control of national laws on arbitration has given rise to yet another point of contact between national constitutions and international arbitration. The control of constitutionality of laws allows superior or special constitutional courts to decide on whether specific provisions or bodies of laws are in conformity with national constitutions. Depending on each country, this control may be exercised in some cases ex ante (ie, prior to the enactment of the law), and in some cases ex post, subsequent to such enactment. Unlike the other mechanisms, there is little defence against this control and, in practice, it has generally served to strengthen and not weaken the legimitacy of arbitration statutes in Latin America.

In a number of recent cases, Latin American courts have used these powers to decide on the constitutionality of laws on arbitration. In Chile, there was an interesting ex ante control of constitutionality regarding the 2004 International Arbitration Act, whereby the Constitutional Court declared the Act in conformity with the Chilean Constitution, with an express caveat that article 5 of the same (which resembles article 5 of the 1985 UNCITRAL Model Law on International Commercial Arbitration) was without prejudice to the disciplinary powers of the Chilean Supreme Court, namely the power to declare a specific provision of the law unconstitutional in a specific case and the constitutional protection of fundamental rights of individuals.²⁹ Fortunately, this has not given rise to any judicial decision extending the scope of judicial intervention.

In Brazil, Panama and Mexico specific arbitral provisions contained in national laws have been subject to ex post constitutional control. In Brazil, the Supreme Court declared, after five years of discussions, that the provisions contained in the Brazilian Arbitration Act of 1996 were constitutional.³⁰ In Panama, the Supreme Court declared unconstitutional the precept that recognised the principle of competence-competence. It basically held that such principle affected the individual’s right to access to the state’s justice, thus violating their rights to their natural judge. As a result of this decision, the Panamanian Constitution was later amended and the principle was put in the Constitution itself.

In Mexico, the Supreme Court refused to declare unconstitutional the precepts contained in the Mexican Commercial Code that, in conformity with the UNCITRAL Model Law,³¹ gave the arbitrators broad powers and ample discretion to decide over the admissibility and the relevance, materiality and weight of evidence, without applying an evidentiary system legally pre-established for judicial proceedings.³²

The necessity (or lack thereof)

This quick review clearly reveals that this new trend of applying national constitutions in international arbitration in Latin America is, in reality, a phenomenon of ‘constitutional tutelage’ related to constitutional rights of individuals in the arbitral process, state activity and the state’s ability to resort to arbitration, the arbitrator who is treated as any other judge, and the laws governing or dealing with international arbitration.

So this begs an obvious question. From a constitutional standpoint, as Calamandrei has said so well, all constitutional declarations are futile without legal remedies that ensure their real application and functionality.³³ The question is whether any constitutional declaration must necessarily and exclusively find its remedy in the constitution itself. If we admit this proposition, every question having a constitutional ingredient would render the constitution as the primary, immediate and direct applicable rule, leaving any other laws created to deal with that specific question without any relevance or applicability. Hence, when analysing the impact of constitutions over international arbitration in Latin America, the very basic question is if their application to international arbitration is really necessary.

The vast majority of Latin American countries have ratified the most important international conventions on international arbitration and implemented national laws inspired by the UNCITRAL Model Law. Therefore, a modern framework of arbitration has been created, consistent with principles generally accepted in the practice of international arbitration. There would be little sense, if any, in creating this modern and robust system favouring arbitration and giving predictability to its users if national courts could then do some of the things described earlier in this article ‘in the name of the constitution’.

One may argue that the constitutional interference is due to the insufficiency or inadequacy of the arbitration legal system to protect certain principles and fundamental rights that have received constitutional protection. But I do not believe that this is necessarily the case. There is no indication that the arbitration legal regime in the region is unable to afford suitable solutions to deal with situations which could give rise to constitutional concerns.

The award rendered in a process where basic principles of material justice have not been respected, such as the right to a fair and equal trial, the right to be heard and the right to have the opportunity to present one’s case, could be set aside according to the Model Law³⁴ provisions, which have already been adopted by several Latin American arbitration laws. It has even been said that those rights are so fundamental that they could be deemed as part of a transnational public policy that could be applied by national judges, even if there is no express legal mention.³⁵ Consequently, it does not seem necessary to resort to standards of constitutional control if the arbitral regime already provides solutions to ensure the protection of these fundamental rights.

If a state or its instrumentalities invoke constitutional limitations under its internal or municipal law to resort to arbitration, an arbitral tribunal may consider those allegations to rule on its jurisdiction to decide the dispute, provided that the applicable law on the question of the jurisdiction of the arbitral tribunal (including the constitution) establishes this possibility. But this is not always the case. One should not forget that the question of the validity of the arbitration agreement (or subjective arbitrability) does not necessarily depend on the municipal law of the state raising the plea of lack of jurisdiction.

Further, the arbitral tribunal’s decision on jurisdiction could be challenged or the award not enforced if a party considers that the state party is not capable of submitting to arbitration³⁶ or that the dispute is not arbitrable,³⁷ both grounds envisaged under most of Latin American arbitration statutes.

Finally, if the arbitrator is not independent or impartial during the arbitral proceedings, he or she can be challenged on these grounds and the award rendered by him or her attacked . The same happens if an arbitrator exceeds the scope of his or her arbitral mandate.³⁸ Thus, it is not necessary to have recourse to constitutional remedies as the ‘inhibitoria’ or the ‘amparo’.

In other words, if there are constitutional rights that could be affected by the arbitral proceedings, their protection can be sufficiently afforded by the mechanisms and remedies offered by the self-contained arbitration framework.

The constitutional protection paradox is that an unlimited protection of constitutional rights ends up affecting other constitutional guarantees such as the freedom of the parties who have agreed to submit to arbitration and the right of access to arbitral justice.

First, international arbitration is based directly on individual liberty and the parties’ autonomy, which is in and of itself a constitutional guarantee. In Spain, the Constitutional Chamber of the Supreme Spanish Court decided in a very interesting decision of 17 January 2005 to reject the use of the constitutional amparo on this ground. In this decision, the Court held that:

Arbitration is a heteronomous dispute resolution method founded in the autonomy of private persons, linked directly with liberty as a superior value (article 1.1 CE) (STC 176/1996, 11 November, FJ4); What, by express agreement of the parties, has been deferred to an arbitral proceeding, by virtue of the same express will is removed from the jurisdiction of the constitutional court through the exercise of an amparo action […] In respect of arbitration, it only projects its guarantees with the rank of fundamental rights to those phases of the arbitral proceedings for which the law has foreseen the judicial intervention of state courts, which includes among the most relevant, the referral of the parties to arbitration, the action to set aside and the enforcement of the arbitral award.³⁹

Second, it has been held in Latin America that ‘arbitration enters into the field of justice, more precisely in the idea of access to justice. It is a variation of the fundamental right of access to the justice and effective judicial protection’.⁴⁰ This is evident in countries like Venezuela, Costa Rica, Panama or El Salvador⁴¹ where the right of access to arbitral justice is expressly recognised in the constitutional text in the same way as the justice given by the state.

***

The interplay between national constitutions and international arbitration in Latin America seems to be on the rise. However, in the majority of cases, the justification for applying national constitutions to a variety of issues arising in arbitral proceedings is more out of convenience than out of necessity.

To a large extent, this is understandable because constitutional mechanisms and remedies are widely known in the region and judges are often called on to enforce them. Constitutional law is a core course in all faculties of law and its presence in the Latin American legal reality is simply overwhelming. International arbitration is in many countries a new and imported institution and thus still perceived as a something alien or strange. The fear of the unknown leads practitioners and judges alike to resort to constitutional standards of control instead of using the specific standards contained in the arbitration framework.

It is probably utopian to think that the Kelsenian principle of constitutional supremacy will leave Latin American countries any time soon. But one may hold out some hope that in the years to come international arbitration will become more widely known and an increasing number of judges and practitioners will find that its self-contained system can provide affordable solutions for constitutional concerns.

Notes

1

See for example the Alfonso X Seven-Part Code of 1263 (specially the XXIII Act, partida III, title IV and the XXXIII Act, partida III, title IV). Some authors consider also that articles 86 and 87 of the French Constitution of 1793 influenced the later recognition that Latin American constitutions gave to arbitration (J E Anzola, Constituciones nacionales en América Latina: Su impacto en el arbitraje internacional, en Cuarta Conferencia Anual de Arbitraje Comercial Internacional en América Latina, Miami, 2006 (unpublished, on file with the author)).

2

See Anales de la Facultad de Derecho de la Universidad de Chile, vol IV, January-December 1938, No. 13. The same study analyses the constitutions that were ratified by Latin American countries in the post-independence period and concludes that there is a constitutional recognition of arbitration in Venezuela (Constitution of 1874), Equator (Constitution of 1878), Colombia, the Dominican Republic and Brazil.

3

See H Grigera Naón, ‘Arbitration in Latin America: Progress and Setbacks’, Arbitration International, vol 21, No. 2, 2005, p 155; and J Paulsson, Denial of Justice in International Law, Cambridge Press, 2005, p 20.

4

See C Conejero Roos, ‘El Arbitraje Comercial Internacional en Iberoamérica: Un Panorama General’, in Tratado de Arbitraje Comercial en Iberoamérica, C Conejero Roos, A Hierro Hernández-Mora, C Soto Coaguila, V Macchia (eds), Wolters Kluwer, 2009, p 47ff.

5

Indeed, the result of economic liberalisation and promotion of foreign investment that was experimented with during the 1990s was a process of reform of local laws regarding international arbitration in Latin America. This reform process was seen at two different levels: at the international level, through the ratification of universal and regional conventions referring to international arbitration and the adoption of bilateral or multilateral treaties to promote foreign investments that established arbitration as a dispute resolution method, and at the national level, through the adoption of national arbitration laws applicable to national and international arbitration. See C Conejero Roos, ‘El impacto de la Ley de la CNUDMI sobre arbitraje comercial internacional en America Latina: un analisis comparativo’, Revista de la Corte Española de Arbitraje, vol XIX, 2004, p 257.

6

See for example: Colombia, article 116; Costa Rica, article 43; Ecuador, article 190; El Salvador, articles 23 and 110; Panama, articles 195 and 316; Paraguay, article 248; Peru, articles 62, 63 and 139.11; and Venezuela, articles 253 and 258, cited in A de Jesús, ‘The Impact of Constitutional Law on International Commercial Arbitration in Venezuela’. Journal of International Arbitration, vol 24 No. 1 (2007), pp 60-79. See also Honduras, article 43.

7

H Kelsen, La théorie pure du droit, trad. Ch Eisemann, LGDJ-Bruylant, Paris, 1999.

8

E Silva Romero, ‘A propos de l';inexorable collision de philosophies dans la constitutionnalisation de l';arbitrage international en Amérique Latine’. II Congres organised by the Association Andres Bello, 6 September 2006.

9

This also may explain why there is increasing literature about the relationship between national constitutions and arbitration in Latin America and in Spain, where the development of international arbitration has been the object of ‘constitutionalisation’. See for example, C M Molina, ‘Aspectos constitucionales del arbitraje en Colombia’, El Contrato de Arbitraje, Legis, 2005, pp 53-73; E Hernández-Breton, ‘Arbitraje y Constitucion: El Arbitraje como derecho fundamental’, Arbitraje Comercial Interno E Internacional: Reflexiones Teóricas Y Experiencias Prácticas, Caracas, 2005, pp 23-34; J Santistevan de Noriega, ‘Arbitraje y jurisdiccion desde la perspectiva del Tribunal Constitucional del Perú’, Revista Peruana de Arbitraje, vol 2, 2006, pp 15-66; B Cremades, ‘El Arbitraje en la Doctrina Constitucional Española’, Lima Arbitration, No. 1, 2006, p 185-220; A de Jesús, ‘La Sala Constitucional y el Arbitraje Comercial. Hacia un régimen racional de control judicial del laudo arbitral en el derecho venezolano’, Revista Peruana de Arbitraje, vol 3, 2006; J E Anzola, supra note 1, p 2-4.; and Rafael Bernal Gutiérrez, ‘La constitucionalización del arbitraje’, 2006 (unpublished).

10

See for an interesting comparative study of the constitutional principles that are relevant in the civil procedure in Latin America, H Fix-Zamudio, ‘Les Garanties Constitutionelles des parties dans le procès en Amérique Latine’, Les Garanties Fundamentales des Parties dans le Procès Civil, M Cappellettii and D Tallon (eds), 1973, pp 31-99.

11

Decision of 14 February 2006, ITA Monthly Report, vol No. 4, No. 11, May 2006, available at www.kluwerarbitration.com.

12

Decision of 20 September 2004, published in La Ley, 22 February 2005, p 6, and Lexis Nexis No. 35001029, available at www.lexisnexis.com.ar.

13

Cámara Nacional de Apelaciones en lo Comercial, Sala E, 20 September 2004, Odgen Entertainment Services v eijo Nestor y otro, La Ley, 22/022005, p 6. See for further information M B Noodt Taquella, ‘Crónica de Jurisprudencia sobre Arbitraje en Argentina’, Revista Latinoamericana de Mediación y Arbitraje, No. 1, 2005, p 96-98.

14

CSJN, José Cartellone Construcciones Civiles SA v Hidroeléctrica Norpatagónica SA o Hidronor SA s/ Proceso de conocimiento, 2004, Fallos, 327:1882.

15

Entidad Binacional Yaciretá v Eriday y otros, 27 September 2004, Causa No. 26.444/04. See for further information, G Parodi, ’El Caso Yaciretá - o cómo retroceder 80 años- Análisis y comentarios’, Revista Internacional de Arbitraje, vol 4, January-June 2006, p 203-255.

16

H Rossati, ‘Los Tratados Bilaterales de Inversión, el Arbitraje Internacional Obligatorio y el Sistema’, Constitucional Argentino, Revista La Ley, 2003. For a contrasting position, see A Sabater, ‘The Weaknesses of the ‘Rosatti Doctrine’: Ten Reasons Why ICSID’s Standing Provisions Do Not Discriminate Against Local Investors’ American Review of International Arbitration, vol No. 15, 2003, p 465.

17

J Kleinheisterkamp, International Commercial Arbitration In Latin America, Oceana, 2005, pp 100-106.

18

See E Silva Romero, ‘The Dialectic of International Arbitration Involving State Parties: Observations on the Applicable Law in State Contract Arbitration’, ICC International Court of Arbitration Bulletin, vol 15, No. 2, pp 79-92.

19

Copel v UEG, Caso No. 24334/0000, 15 March 2004. See C Conejero Roos and R Grion, ‘Arbitration in Brazil: The ICC experience’, Arbitration in Brazil: Practice and Procedure, Juris Publishing, 2005, App C-20; ‘Algumas considerações sobre o Caso Copel v UEG, Revista Brasileira de Arbitragem, No. 3, 2004, pp 170-187; H A Grigera Naón, note 3, pp 164-165; E Silva Romero, ‘América Latina como Sede de Arbitrajes Comerciales Internacionales’, Revista de Arbitragem e Mediação, No. 1, 2004, pp 92-93; J Kleinheisterkamp, note 6, p 103; and C Valença Filho and J B Lee, ‘Brazil’s New Public-Private Partnership Law: One Step Forward, Two Steps Back’, Arbitration International, vol 22, 2005, p 420.

20

See note 15. For a commentary on this decision, see F Godoy, ITA Monthly Report, vol 6, issue 5, May 2008, available at www.kluwerarbitration.com.

21

Decision of 30 August 2007, published in La Ley, 4 July 2008, p 1, and also available at ITA Monthly Report, vol 6, issue 5, May 2008, available at www.kluwerarbitration.com.

22

SJ/SPA/No. 855, 5 April 2006, Venezolana de Televisión, CA v Elettronica Industriale SpA. See commentary in Bulletin of the Venezuelan Committee of Arbitration, No. 17, 2006, pp 4-10.

23

See Rafael Bernal Gutiérrez, La constitucionalización del arbitraje, 2006 (unpublished, on file with the author).

24

Law 19,971 of September 2004.

25

See C Conejero Roos, ‘The New Chilean Arbitration Law and the Influence of the Model Law’, Journal of International Arbitration, vol 22, No. 2, 2005, p 151-152; and D Lindsey and R Riesco, ‘Selecting Chile as a place of arbitration’, International Business Litigation & Arbitration, vol 1, 2006, pp 637-660.

26

See H Grigera Naón, note 3, p 154.

27

Venezolana de Television CA v Electrónica Industriale SpA, Supreme Court of Justice, Constitutional Chamber, Decision No. 1981 16 October 2001. Nevertheless, a particular vote in the recent case Nokia de Venezuela, SA v Digicel, CA arrived at a different conclusion, saying that an arbitral award should not be subject to this remedy at law since has a specific regime, as it could be the annulment resort.

28

Radio Centro, SA de CV y otros, Amparo Directo, Exp No. RC 311/2005-13.

29

Decision of the Chilean Constitutional Court of 25 August 2004 (Rol No. 244), paragraph seven.

30

MBV Commercial and Export Management Establishment v Resil Indústria e Comércio Ltda, 5206-7, STF, 12 December 2001. See also ‘Revista de Direito Bancário’, Do Mercado de Capitais e da Arbitragem, No. 11, (Jan-Mar 2001), p 361; J B Lee, ‘Observation - Supremo Tribunal Federal’, 12 December 2001, Revue de l’arbitrage. No. 2, 2003, p 529; and J Dolinger and C Tiburcio, Arbitragem Comercial Internacional, 2003, pp 49-68.

31

Article 19(2) of the UNCITRAL Model Law.

32

F González de Cossio, ‘Chauvinism Rejected: Supreme Court upholds the constitutionality of the Mexican Arbitration Statute’, Journal Of International Arbitration, vol 22, No. 2, 2005, pp 163-166.

33

P Calamandrei, quoted by J Colombo Campbell in International Journal of Constitutional Law, vol 3, 2005, p 547.

34

Article 34(2)(a)(ii) of the UNCITRAL Model Law.

35

G Petrochilos, Procedural Law in International Arbitration, Oxford Law, 2005, p.164.

36

Article 34(2)(a)(ii) of the UNCITRAL Model Law, which reproduces Article V(1)(a) of the New York Convention.

37

Article 34(2)(a)(i) of the UNCITRAL Model Law, which reproduces Article V(2)(a) of the New York Convention.

38

Article 34(2)(a) (iv) and (iii) of the UNCITRAL Model Law, which reproduce article V(2) (c) and (d) of the New York Convention.

39

Supreme Spanish Court Decision 9/2005, 17 January 2005. See for an excellent overview of the influence of the constitution over arbitration in Spain, B Cremades, ‘El Arbitraje en la Doctrina Constitucional Española’, Lima Arbitration, No. 1, 2006, pp 185-220.

40

E Hernández-Breton, ‘Arbitraje y Constitucion: El Arbitraje como derecho fundamental’, Arbitraje Comercial Interno e Internacional: Reflexiones Teóricas y Experiencias Prácticas, Caracas, 2005, pp 23-34

41

Venezuela (articles 253 and 258 of the Constitution of the Bolivarian Republic of Venezuela), Costa Rica (article 43 of the Constitution of the Republic of Costa Rica), Panama (article 116 of the Constitution of Panama), El Salvador (article 23 of the Constitution of El Salvador).