Novelties in arbitration

1.    International Arbitration: ICSID

On May 12, 2005 the final award was rendered in the arbitration between CMS Gas Transmission Company and the ArgentineRepublic brought under ICSID Rules and the Bilateral Investment Treaty executed between Argentina and the United States of America.

The award partially recognized the claim brought by CMS. Under ICSID Rules (Section 52) said award could be subject to annulment before an ad hoc panel.

For more detailed information please contact Fernando Aguilar.

2.    Arbitration: Nullity and enforcement of an arbitration award

A Lower Court in Commercial Matters rejected the petition of stay of enforcement of an arbitration award while the judicial process of nullity of the same award is still pending.

The defendant in an “amiable compositeur” arbitration process filed a request of annulment of a condemnatory arbitration award rendered by the Buenos Aires Stock Exchange Permanent Arbitration Panel with Commercial Court No 10. In addition, the defendant requested an interim measure in order to suspend the enforcement of the arbitration award until a final decision on the judicial process of annulment of the award is rendered. The judge rejected the request for the preliminary measure.

In order to dismiss the petition of the preliminary measure, the judge found (i) that the arbitration decision should not be invalidated, nor should the stay of enforcement be based on the mere filing of the judicial claim of annulment, and it should maintain its validity and effectiveness until the nullity is judicially declared; and (ii) that the purpose of the requested preliminary measure should not be confused with the purpose of the annulment claim because otherwise the final decision of the judicial process would be advancing along an inappropriate path.

For these reasons the judge dismissed the preliminary suspension of the effects of the award, and acknowledged its effectiveness and enforcement while the judicial process of anullment is still pending.

Such decision was appealed by the plaintiff. The appeal was dismissed by the same judge understanding that, if according to the rules of the Federal Code of Civil and Commercial Procedure, the final decision rendered in the annulment of an “amiable compositeur” arbitration award cannot be appealed, this same criteria should be applicable to those decisions adopted throughout the process. This second decision was later confirmed by the Commercial Court of Appeals on February 17, 2005.