Arbitration in Latin America: Overcoming Traditional Hostility

Abstract

THE way arbitration is viewed in Latin America has changed dramatically during the last ten years or so. This is shown ( inter alia ) by the ratification by many Latin American countries of the 1958 New York Convention on the recognition and enforcement of foreign arbitral awards1 and of the Panama Interamerican 1975 Convention on International Commercial arbitration,2 by recent developments in the Andean Pact3 and Colombia,4 by the new Brazilian draft legislation on commercial arbitration,5 by legislative changes in Peru6 and Venezuela7 and, in general - and this is clearly sensed by practitioners - by the widespread insertion of arbitral clauses in contracts to which Latin American private and public persons or entities are a party. Therefore, it appears to be no longer true to speak of ‘Latin American hostility’ vis-a-vis arbitration. It would be more accurate to say that Latin America is considering arbitration with growing sympathy, although many of the present rules applicable to arbitration in a number of Latin American countries still need to be adapted to this new trend. It is then the purpose of this article to analyse the present state of the laws on arbitration in Latin America in order to assess the areas where legislative change is advisable. Arbitration in Latin America has to be considered from two different vantage points: legal provisions in Latin American countries regarding commercial arbitration and legal provisions governing the recognition and enforcement in a Latin American country of an arbitral award rendered abroad. Latin American countries do not distinguish between national and international commercial arbitration for the purpose of determining the national rules governing arbitrations developing within their boundaries. In this, they do not differ from recent arbitral legislation - like the Netherlands 1986 Arbitration Act - which does not …