INTERNATIONAL COMMERCIAL ARBITRATION DEVELOPMENTS IN LATIN AMERICA

• Jurisdiction: United States

International Energy and Minerals Arbitration
(Feb 2002)
CHAPTER 9A
INTERNATIONAL COMMERCIAL ARBITRATION DEVELOPMENTS IN LATIN AMERICA
Fernando Mantilla-Serrano, Esq. ^*
Garrigues &Andersen
Madrid, Spain

INTRODUCTION

After decades of traditional hostility towards arbitration, most of the Latin American countries have enacted legislation in the last decade, which replicates modern trends in international arbitration.

Indeed, ever since the end of the '80s, a remarkable "agiornamento" has taken place in the Laws on arbitration and in these countries' participation in international legal instruments concerning dispute resolution. The liberalisation of the economies, the inflows of foreign investment, the need to create a favourable climate for said investment to stay and, last but not least, the support of the Inter American Development Bank (IADB) through its program for ADR Centres in the region, have been instrumental in these changes.

Coupled with these legal reforms, the number of arbitration cases handled by the most important international arbitration centres has increased.

Case law usually takes longer to evolve and there is some degree of uncertainty about the application of the new laws and international conventions by national courts. There is still a risk of having new laws applied with old criteria and prejudices. However, even in this respect, the national courts are embracing this new policy of favouring arbitration.

It is important to bear in mind that something that could be considered natural in one particular country has to be considered an outstanding advance in another country with less arbitration culture or experience.

Rather than analysing each one of the legal texts recently enacted by the Latin American countries,¹ this paper will concentrate on the general trends (I) and the major advancements (II) that the new laws have brought; not without pointing out some risks that still surround arbitration in the region (III).

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I. GENERAL TRENDS

The Latin American countries are changing their attitude and embracing modern policies concerning international dispute settlement. Encouraged by economic reforms, liberalisation of markets and the need for foreign investment, most of the countries in the region are literally competing against each other in order to flag the best arbitration legislation and to advertise as a venue for Arbitral Tribunals within the region.

At the same time, a new cultural change that favours recourse to ADR is taking place. Apart from Mexico and Guatemala (and to a lesser extent Peru), which have enacted legislation much along the UNCITRAL Model Law on arbitration, the laws enacted are quite different. However, it is possible to identify some general trends that transpire both from the new laws and from the new Latin American approach towards ADR.

A. Institutionalisation

Most of the change in the attitude of the Latin American countries towards arbitration is due to the tenacious campaign that has been undertaken by the Arbitration Centres working under the auspices of local Chambers of Commerce. They have been instrumental in running educational seminars, making publicity and in some instances drafting the laws. As a result, the whole development of ADR in the...