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Copyright © International Chamber of Commerce (ICC). All rights reserved. ( Source of the document: ICC Digital Library )
This ICC Guide to National Rules of Procedure for Recognition and Enforcement of Foreign Awards under the New York Convention is the third, updated edition to mark the 60th anniversary of the New York Convention. Country Answers, which reflect the state of law at 1 October 2018, have been provided in response to a Questionnaire drawn up by a task force of the ICC Commission on Arbitration and ADR.
A. The Contracting State and the New York Convention
Name of Contracting State (also specify jurisdiction(s), if relevant)
Argentina.
Explanatory Note: The Argentine Republic is a federal state comprising 23 provinces and the Autonomous City of Buenos Aires.
The Argentine Congress, among other things, passes substantive and common legislation applicable in all Argentine jurisdictions, and approves treaties and other international commitments. There is also a federal judiciary, which applies rules of procedure enacted by the Argentine Congress.
The political organization of the provinces generally mirrors that of the federal level. Thus, each Argentine jurisdiction has its own procedural legislation on arbitration applied by its own judiciary.
On 1 Aug. 2015, a new Civil and Commercial Code (‘CCC’) entered into effect, which applies to all Argentine jurisdictions and includes provisions on arbitration agreements and other related matters, applicable to domestic arbitrations (Arts. 1649ï€ to 1665). Some provisions of the CCC overlap with the legislation on arbitration contained in the Code of Procedure of each Argentine jurisdiction.
In addition, on 4 July 2018, the Argentine Congress passed Law 27,449 on International Commercial Arbitration, which regulates international commercial arbitration (the “ICA Law”). The ICA Law follows the UNCITRAL Model Law on International Commercial Arbitration. It adopts the text of the Model Law with a few non substantial changes or adaptations (e.g. following Art. 2605 of the CCC, ICA Law excludes the case described in Art. 1(3)(c) of the Model Law, which broadens the notion of internationality).
The ICA Law is a federal law that applies to (i) international commercial arbitrations when the place of arbitration is within the territory of Argentina and (ii) the recognition and enforcement of foreign arbitral awards. The ICA Law also clarifies that international commercial arbitrations are ‘exclusively’ governed by it, which means that the rules on domestic arbitration contained in the Codes of Procedure do not apply to international commercial arbitrations. Also, Art. 519 bis of the Code of Civil and Commercial Procedure (which regulated recognition and enforcement of foreign awards) has been repealed by Law 27.449. Such rules were replaced by the new rules contained in the ICA Law (Arts. 102 to 105).
In this Country Answer, unless otherwise stated: (a) references are to federal (national) legislation and procedures; (b) ‘days’ mean ‘judicial days’, i.e. days on which federal courts are open to the public, and (c) ‘federal courts’ mean courts with federal jurisdiction and national courts mean local courts of the Autonomous City of Buenos Aires.
(Source: Argentine National Constitution, as amended in 1994, Arts. 5, 31, 35, 75(12), 116, 117, 121; Civil and Commercial Code, Law 26.994 of 1 Oct. 2014 published on 8 Oct. 2014 as amended by Law, 27.077 of 16 Dec. 2014 published on 19 Dec. 2014, Arts. 1649-1665; Law 27,449 of 4 July 2018 published on 26 July 2018, Arts.,1-6; 102-105.)
Date of entry into force of the New York Convention
12 June 1989.
Has any reservation been made under Art. I(3) of the New York Convention regarding:
(a) reciprocity?
Argentina made a reciprocity reservation under the New York Convention.
(Source: Law 23.619 of 21 Oct. 1988 published on 4Â Nov. 1988.)
(b) commercial relationships?
Argentina made a reservation for commercial relationships when it ratified the New York Convention.
In addition to arbitral awards made in the territory of another State, the New York Convention (Art. I(1)) also applies to arbitral awards not considered as domestic awards in the State where recognition and enforcement is sought. Are there any awards rendered in your country that are not considered as domestic awards such that the New York Convention and the answers to this Questionnaire are applicable to them?
The New York Convention applies only to arbitral awards made in the territory of another Contracting State. Arbitral awards rendered in Argentina are deemed to be domestic awards.
B. National sources of law
What specific sources of law are applicable to recognition and enforcement of foreign awards (e.g. statutes, regulations, codes, directives, other legal instruments)?
In addition, by ratifying the New York Convention, Argentina has ‘federalized’ and therefore rendered unified the regime of recognition and enforcement of foreign awards throughout the country within the scope of the New York Convention. By doing so, within the sphere of application of the New York Convention, the provisions of the Argentine provincial codes and the ICA Law that are not fully in compliance with New York Convention should no longer be considered applicable.
(Source: Constitution, Arts. 31, 75(22)).
Indeed, the provisions of the ICA Law are not applicable where an international treaty on the matter is in force in Argentina; Art. 1 of the ICA Law expressly acknowledges the prevalence of international treaties to which Argentina is a party in relation to arbitration.
(Source: See Corte Suprema de Justicia de la Nación, 26 Dec. 1995, Méndez Valles, Fernando v. A.M. Pescio SCA. s/ ejecución de alquileres, Fallos: 318:2639)
Argentina is also a party to other international treaties that contain rules on recognition and enforcement of foreign awards. The most significant of those treaties are:
C. Limitation periods (time limits)
(a) Is there a limitation period (time limit) applicable to the commencement of legal proceedings for recognition and enforcement of foreign awards?
Yes
(b) If yes, what is the applicable limitation period (time limit) and when does it start running?
The general five-year time limit for contractual obligations, which begins on the date on which creditors may exercise their rights, applies to petitions for recognition and enforcement of foreign arbitral awards.
(Source: Civil and Commercial Code, Art. 2560.)
D. National courts and court proceedings
What authority or court has jurisdiction over recognition and enforcement of foreign awards?
Federal courts in the Autonomous City of Buenos Aires and courts of the province in which the recognition or enforcement is sought.
(Source: ICA Law, Art. 102; CPCCN, Art. 518.)
What requirements, if any, must be met for the authority or court to accept jurisdiction over recognition and enforcement of foreign awards (e.g. domicile or assets of the respondent in the jurisdiction, etc.)?
The federal or provincial court has jurisdiction if the respondent has a residence, domicile, place of business or assets in Argentina.
(Source: Civil and Commercial Code, Art. 2608)
Is the first decision granting or denying recognition and enforcement obtained through ex parte or inter partes proceedings?
There is no initial ex parte phase. Recognition and enforcement are obtained through inter partes proceedings. Courts will make no decision before the respondent is properly summoned and has the opportunity to present its defenses or objections.
(Source: ICA Law, Arts. 104-105; CPCCN, Art. 518.)
(a) Is the first decision granting or denying recognition and enforcement subject to any form of appeal or recourse?
Yes.
(b) How many levels of appeal or recourse are available against this decision?
One, and occasionally two in exceptional circumstances.
Firstly, an appeal against the decision granting or denying enforcement of a foreign award shall be decided by the Court of Appeal.
Secondly, a so-called ‘extraordinary recourse’ may be submitted against the decision of the Court of Appeal. The admissibility of such recourse will be ultimately decided by the Argentine Supreme Court. If the Supreme Court finds the ‘extraordinary recourse’ admissible, it may stay the enforcement proceedings. If the extraordinary recourse is then admitted, the Supreme Court will not review the findings of fact by the lower court. If it concludes that a different judgment is needed, it will remit the case to a competent lower court for a new decision.
(Source: Law 48 (1863), Art. 14; CPCCN, Art. 242; Corte Suprema de Justicia de la Nación, Alicia Josefina Lalo v. Jorge Alberto Kohon, Fallos 323:311, 7 Mar. 2000; Cámara Nacional de Apelaciones en lo Civil (plenary), Pérez Aldo Nicolás v. Cisneros Miguel Angel, 3 Sept. 2003.)
What is the earliest stage in legal proceedings for enforcement of foreign arbitral awards at which a party can obtain execution against assets?
Execution against assets may be sought five days after judicial notice to the respondent that the court granted enforcement of the award (exequatur).
Provisional enforcement is not available. However, provisional protective measures may be obtained from the courts.
(Source: CPCCN, Art. 244.)
E. Evidence required
(a) What evidence must be supplied for recognition and enforcement of foreign awards (e.g. arbitral award, contract containing the arbitration clause, affidavits, witness statements, etc.)?
The evidence that must be submitted is that required by Art. IV of the New York Convention, i.e. (i) the arbitral award and (ii) the arbitration agreement. The signatures must be authenticated.
(Source: Corte Suprema de Justicia de la Nación, Armada Holland BV Schiedam Denmark c/ Inter Fruit S.A., Fallos 334:552, 24 May 2011).
(b) Is it necessary to provide the entire document or only certain parts (e.g. the entire contract or only the arbitration clause)?
The entire document must be provided, i.e. the entire award as well as the entire contract containing the arbitration clause.
(c) Are originals or duly certified copies required?
Either the originals or a certified copy of the award and arbitration clause or agreement must be filed. The signatures must be authenticated.
(Source: ICA Law, Art. 103).
(d) How many originals or duly certified copies are required?
Only one copy is required. Ordinary photocopies must be provided for service to the respondent.
(e) Does the authority or court keep the originals that are filed?
If the original award (rather than a certified copy) has been filed with the court, the court will keep it until it is replaced by a certified copy or the proceedings are finished.
(a) Is it necessary to provide a translation of the documents supplied?
Yes. All documents must be filed together with a certified translation.
(Source: ICA Law, Art. 103; CPCCN, Arts. 123, 518.)
(b) If yes, into what language?
Spanish.
(c) Is it necessary for the translations to be certified and, if yes, by whom (official or sworn translator, diplomatic or consular agent (of which country), or some other person)?
Translations must be made by a certified translator in Argentina.
(Source: CPCCN, Arts. 518, 123; Law 20.305 of 1973.)
(d) Is it necessary to provide a full translation of the documents or only a translation of certain parts (e.g. entire award or only the part setting forth the decisions; entire contract or only the arbitration clause)?
Translations of the entire documents must be provided, i.e. the entire award as well as the entire contract containing the arbitration clause.
F. Stay of enforcement
(a) Can the authority or court stay legal proceedings for recognition and enforcement pending the outcome of an application to set aside or suspend the foreign award before the competent authority referred to in Article V(1)(e) of the New York Convention?
No reported case in Argentina appears to have addressed this issue. However, in view notably of Art. 5(1)(e) of the New York Convention, Argentine courts have discretion to stay legal proceedings for recognition and enforcement of a foreign award, on a case-by-case basis, pending the outcome of an application to set aside or suspend it before the competent authority of the country in which or under the laws of which the award was made. Such discretion has now been expressly recognized in Art. 105 of the ICA Law. Pursuant to this provision, Argentine courts may also order the provision of security from the party that is requesting the stay of the proceedings for recognition and enforcement.
(Source: Constitution, Arts. 31, 75(22); ICA Law, Art. 105)
(b) On what other grounds, if any, can the authority or court stay legal proceedings for recognition and enforcement (e.g. forum non conveniens)?
Forum non conveniens or similar grounds have not so far been widely applied to stay recognition and/or enforcement of foreign arbitral awards. The Insolvency Act provides that in the event of insolvency and reorganization of an Argentine resident, proceedings for enforcement of a foreign award against that resident will be stayed and the debt will be subject to the reorganization plan. Proceedings for recognition of that award will not be stayed.
(Source: Insolvency Law 24.522 of 20 July 1995 (published on 9 Aug. 1995, as amended by Laws 24.760, 25.113, 25.563, 25.589, 26.086 and 26.684), Arts. 21, 132.)
(c) Is the granting of a stay of legal proceedings for recognition and enforcement conditional on the provision of security?
No. However, upon request of the party seeking recognition and enforcement of the foreign award, the Argentine court may order the provision of security to the party requesting the stay of the legal proceedings.
(Source: ICA Law, Art. 105)
G. Confidentiality
(a) Do the documents filed in legal proceedings for recognition and enforcement form part of the public record? If yes, can any steps be taken to preserve the confidentiality of such documents?
All documents filed in legal proceedings for recognition and enforcement are public and available to third parties. However, upon a grounded request of any of the parties, courts may order temporary restrictions to protect confidentiality.
(b) If there are hearings on recognition and enforcement, are such hearings confidential? If not, can steps be taken to maintain the confidentiality of the legal proceedings?
Recognition and enforcement proceedings are written. Upon the request of any of the parties or ex officio, the court may order a hearing if it deems it appropriate.
(Source: CPCCN, Art. 125.)
(c) Are judgments on recognition and enforcement published? If yes, can steps be taken to remove the names of the parties or avoid publication of confidential information (such as business secrets or State secrets)?
Judgments on the recognition and enforcement of foreign arbitral awards are part of public records and are regularly published on the website of the Judiciary. Here again, the court may impose restrictions to protect confidential information, if there are good reasons for doing so.
(Source: CPCCN, Art. 164.)
H. Other issues
When, if ever, can a party obtain recognition and enforcement of interim or partial foreign awards?
Recognition or enforcement of interim or partial awards, whether domestic or foreign, can be obtained if the award (i) relates to the merits of the dispute, (ii) relates to jurisdiction, or (iii) terminates the arbitral proceedings on procedural grounds.
When, if ever, can a party obtain recognition and enforcement of non-monetary relief in foreign arbitral awards (e.g. an order requiring a party to delivery up share certificates or other property)?
No distinction is made between monetary and non-monetary relief, and both can be enforced.
When, if ever, can a party obtain recognition and enforcement of only a part of the relief granted in foreign awards?
Any applicant (whether national or foreign) is permitted to waive a part of any relief or some of the remedies that have been obtained. To the extent that those remedies are interwoven, the respondent’s consent may be necessary.
The law instructs courts not to enforce parts of the award that: (i) exceed the scope of the agreement to arbitrate and/or matters submitted thereafter to the arbitrators with the consent of the parties, (ii) decide issues that are not arbitrable, or (iii) violate Argentine international public policy, all of the foregoing on condition that such parts of the award can be separated from the other parts.
In a recent case, the Supreme Court admitted the recognition and enforcement of part of the relief granted in a foreign award that violated Argentine international public policy on the issue of consolidation of government debts. The party seeking recognition and enforcement accepted the adaptation of the award to the limits provided in such public policy rules. Applying Art. III of the New York Convention, the Supreme Court granted the recognition of the award, and held that the enforcement thereof must be made in accordance with the limits of the public policy rules.
(Source: Argentine Constitution, Art. 18; Civil and Commercial Code, Arts. 1649, 1651, 1656; CPCCN, Art. 754; Corte Suprema de Justicia de la Nación, Aguinda Salazar, María v. Chevron Corporation s/medidas precautorias, Fallos 336:503, 3 June 2013; Corte Suprema de Justicia de la Nación, Deutsche Rückversicherung AG c/ Caja Nacional de Ahorro y Seguro en liquidac. y otros s/ proceso de ejecución, 24 Sept. 2019)
When, if ever, can a party obtain recognition and enforcement of foreign awards which have been set aside by the competent authority referred to in Art. V(1)(e) of the New York Convention?
No reported case in Argentina appears to have addressed this issue. However, in view notably of Art. 5(1)(e) of the New York Convention, any competent Argentine court has discretion to recognize and/or enforce any arbitral award falling under the New York Convention that has been set aside by the competent authorities of the country in which or under the laws of which the award was made, or to rule otherwise.
(Source: Constitution, Arts. 31, 75(22); ICA Law, Arts. 104-105)
Are there any other procedural or practical requirements relating to recognition and enforcement of foreign awards which are worth mentioning (e.g. unusually high court costs, filing fees, stamp duties, obligation to post security as a condition for seeking recognition and enforcement, obligation to identify the assets that will be the object of enforcement, etc.)?
The initiation of judicial proceedings is, in general, subject to the upfront payment of a so-called ‘justice fee’, which in national courts is 3% of the amount claimed, recoverable totally or partially from the respondent, depending upon the outcome of the case. As the Supreme Court has ruled, decisions enforcing awards are of a ‘declaratory’ nature, it could be argued that the recognition and/or enforcement of foreign awards is not subject to such 3% payment. In a recent case, a party requested the recognition of a foreign award (and not its enforcement) under the New York Convention. Based on the aforementioned ruling of the Supreme Court, such party argued that the 3% payment was not applicable. The court accepted such position and decided that the justice fee was not applicable to the recognition of the award. Nevertheless, enforcement proceedings of domestic awards (CPCCN, Art. 499) are subject to the upfront payment of the 3% fee. Consequently, it is very likely that enforcement of foreign awards is also subject to the payment of the 3% fee, following the same criterion applicable to domestic awards.
(Source: Law 23.898 published 29 Oct. 1990; Corte Suprema de Justicia de la Nación, Reef Exploration Inc. v. Cía. Gral. de Combustibles S.A., 21 Feb. 2006, La Ley 2006-C, p. 429; Juzgado Comercial No. 24, Secretaria No. 42, Pan American Sur S.A. c/Wintershall Energia S.A. s/sumarísimo, 22 March 2016.)
Country Rapporteur: Joaquin Vallebella
Other contributors: Federico Campolieti