The Commercial Court entitled one party in an arbitration proceeding to request precautionary measures directly to a court, and explained that such request shall not be deemed as a waiver of the arbitral jurisdiction agreed.
In the case “Dong Won S.A. c/ Compañía Petrolera Petroleum World S.A. s/ medida precautoria”[1], notwithstanding the inclusion of an arbitration clause in the agreement entered into between the parties thereto (and under which the controversies arising therefrom should be resolved by the Buenos Aires Stock Exchange’s General Arbitral Tribunal), the plaintiff filed a request for precautionary measures against the defendant before a court, and further explained that the substantial matters of the controversy would be brought against said Arbitral Tribunal.
Despite this explanation, first instance court wrongfully declared itself incompetent on the basis of a precedent inapplicable to this case.
This resolution was challenged by the plaintiff. The Commercial Court of Appeal (Chamber B), following the Attorney General’s legal opinion, revoked the court’s decision on the grounds that under article 33 in fine[2] of the Arbitration Rules of the Buenos Aires Stock Exchange’s General Arbitral Tribunal, the parties could request precautionary measures to a court and such request would not imply a violation of the arbitration agreement. Said provision meant that although the Arbitral Tribunal had the power to issue such measures, the parties also had the choice of requesting them to a court.
It should be noted that modern arbitration laws and rules such as the UNCITRAL Model Law and Arbitration Rules, and the Arbitration Rules of the International Chamber of Commerce follow the criterion explained before. Hence, they entitle the parties in an arbitration proceeding to request precautionary measures directly to a court, and explain that such request shall not be deemed as a waiver of the arbitral jurisdiction agreed.
[3] Such is the case we have analyzed, where although the substantial matters of any controversy arising from a contract were agreed to be resolved by the Buenos Aires Stock Exchange’s General Arbitral Tribunal, the plaintiff exercised the rights set forth in article 33
in fine of the above mentioned Arbitration Rules.
[4]
[1] Commercial Court of Appeal, Chamber B, December 16, 2005, published in www.eldial.com of March 20, 2006.
[2] Article 33 of the Rules of the Buenos Aires Stock Exchange’s General Arbitral Tribunal: “The Tribunal may order precautionary measures under the responsibility of, and the granting of security by, the requesting party, and to its satisfaction if the parties have not excluded such power in the arbitration agreement. Their compliance shall be requested to a judicial authority. The parties may also request the precautionary measures to a judicial authority, and such request shall not imply a waiver of the arbitration agreement”.
[3] Art. 9 of the UNCITRAL Model Law: “Arbitration agreement and interim measures by court. It is not incompatible with an arbitration agreement for a party to request, before or during arbitral proceedings, from a court an interim measure of protection and for a court to grant such measure”. Art. 26.3 of the UNCITRAL Arbitration Rules: “26.3 A request for interim measures addressed by any party to a judicial authority shall not be deemed incompatible with the agreement to arbitrate, or as a waiver of that agreement”. Art. 23.2 of the Arbitration Rules of the International Chamber of Commerce: “Conservatory and interim measures. 2. Before the file is transmitted to the Arbitral Tribunal, and in appropriate circumstances even thereafter, the parties may apply to any competent judicial authority for interim or conservatory measures. The application of a party to a judicial authority for such measures or for the implementation of any such measures ordered by an Arbitral Tribunal shall not be deemed to be an infringement or a waiver of the arbitration agreement and shall not affect the relevant powers reserved to the Arbitral Tribunal. Any such application and any measures taken by the judicial authority must be notified without delay to the Secretariat. The Secretariat shall inform the Arbitral Tribunal thereof”. And the above mentioned article 33 in fine of the Arbitration Rules of the Buenos Aires Stock Exchange’s General Arbitral Tribunal, among others.
[4] Same decision was adopted by Chamber C of the Argentine Commercial Court of Appeal on October 29, 2002 in “S.R., A.A. c. Prime Argentina S.A. (Holdings)”, La Ley-2003-C, p. 122.
