Changes in Arbitration Matters

On the one hand, Article 29 of the Bill, included in Chapter VII: “Dispute Settlement” of Title II: “Administrative Reorganization”, authorizes the National Executive Power to establish conciliation, settlement and/or arbitration mechanisms, both in Argentina and abroad. 

In general, the scope of application of these mechanisms refers to the solution of “any dispute, current or future, of a contractual or non-contractual nature in which any organ or decentralized entity of the National Public Administration is a party.” In this regard, the Bill proposes to empower the National Executive Power to enter into arbitration commitments, incorporate arbitration clauses, agree on prorogations of jurisdiction, conciliation procedures and, in general, to carry out all acts necessary to implement these dispute resolution mechanisms. Finally, the Bill clarifies that arbitrators would have the same jurisdictional powers as those corresponding to judges.

It remains to be seen whether the reform proposed by the Bill produces an increase in the use of arbitration in disputes involving the National Executive Power, outside the already known investment arbitration governed by international treaties entered into by Argentina.

On the other hand, the Bill introduces important reforms to the private contracting regime of the Argentine Civil and Commercial Code (CCC). Among these, and in relation to arbitration, the definition of the arbitration contract provided in Article 1649 of the CCC would be modified.

In particular, Article 387 of the Bill, inserted in Title V: “Justice”, eliminates the requirement that the legal relationship to be submitted to arbitration must be one “of private law in which public policy is not compromised.” This limitation —which did not appear in the original text of the Preliminary Draft of the CCC— had been previously criticized by legal scholars due to the lack of a precise, clear, or invariable concept of what is understood by public policy.

In conclusion, the reform proposed by the Bill seems to be aimed at facilitating the resolution of disputes through arbitration in Argentina, which would go hand in hand with the exaltation of the autonomy of will and individual freedom that the Bill itself mentions as a guiding principle.