The General Arbitration Court of the Buenos Aires Stock Exchange has introduced new arbitration rules that will enter into force on March 1, 2024. These changes are intended to modernize the arbitration process by, among other things, digitizing it to allow parties to resolve disputes more efficiently. The existing advantages of arbitration compared to court proceedings are to be retained. The new arbitration rules also take into account the international nature of arbitration proceedings and supplement Argentine Law 27.449 on International Commercial Arbitration (Official Gazette of July 26, 2018).
Some of the main innovations include a greater guarantee of the independence and impartiality of arbitrators, the possibility of partially amending the Rules, the extension of time limits for pleadings before the taking of evidence, the possibility of requesting various interim measures, appeals and the consent of the parties to expedited arbitration proceedings.
Below you will find a list of what we consider to be the most important changes:
- Principles of arbitration: The Arbitration Rules maintain the principles of the right to a fair hearing, objection, equality and promptness and supplement them with further principles such as flexibility of forms, proportionality, independence, impartiality and duty of disclosure of the arbitrators, cooperation of the parties, autonomy of the will of the parties and good faith.
- Arbitration agreement: The arbitration agreement allows parties to voluntarily submit disputes to arbitration, provided that public policy is not compromised. It must be in writing and may take various forms, including written documents, electronic communications or contractual references to arbitration clauses. The parties may agree to arbitration at any time under Article 6 of the Arbitration Regulation, even if court proceedings have already been commenced, provided that no interim or final judgment has been entered limiting the award to be made. According to Article 7 of the Arbitration Regulation, the arbitration agreement extends to persons involved in the negotiation, conclusion, performance or termination of the contract and to those who are to derive rights or benefits from the contract, provided that they have been duly summoned to the proceedings. However, questions remain as to the interpretation and enforcement of the arbitration agreement, in particular with regard to the consent of third parties to arbitration and the rights of such third parties. The application of good faith and the right to a natural judge could play a role here and could even affect the nullity of the arbitral award. Further clarification is needed on how such situations are resolved and what impact they may have on the effectiveness of the arbitration award.
- Funding: Parties must disclose who is financially supporting the proceedings in order to avoid conflicts of interest. The arbitral tribunal may require the disclosure of all financial resources. They must also name the team of experts to ensure the impartiality of the arbitrators.
- Electronic address: Parties must provide an electronic address to facilitate communication.
- Rules of arbitration: The procedure is governed by the Rules of Arbitration and agreements between the parties. The Argentine Law on International Commercial Arbitration shall apply to international proceedings. Parties may propose a partial modification of the procedural rules, provided that the principles of Article 3 of the Arbitration Rules are not violated.
- Confidentiality: Confidentiality is required for all parties involved in the process and for all documents and decisions.
- Notifications: The Arbitration Rules do not provide for service on the Secretariat (or “ministerio legis”) as decisions can now be sent electronically to the parties. Article 41 of the Arbitration Rules expands the types of decisions (the communication of objections requiring prior processing, the communication of new facts or documents, the determination of the points of settlement and the order to open evidence, the communication of appeals, the interlocutory decisions issued during the proceedings) that can be served electronically directly to the parties.
- Submission of pleadings: The formalities for the submission of pleadings remain unchanged. The date and time of submission in electronic form shall be deemed to be the time of the arraignment.
- Deadlines: The deadline for responding to the complaint is now five trading days, as opposed to the previous deadline of three days.
- Precautionary measures: The court may order provisional and urgent measures to preserve evidence, persons, goods, property or rights. However, parties may still apply to the court for interim measures without abandoning the arbitration proceedings. The requirements for the issuance of interim measures are explained in detail, whereby the provisions of Law 27.449 must be observed in international arbitration proceedings.
- Appeals against decisions of the court clerk: All decisions of the clerk of the registry are contestable and the appeal has a suspensive effect. Appeals must be substantiated within five days of submission of the written pleadings.
- Deadlines for responding to the complaint: The deadline for responding to the complaint is now fifteen trading days, as opposed to the previous deadline of ten days.
- Notification of service of process: The service of process is divided into two parts, with separate deadlines for the summons and the summons.
- Statement of Defense: If the Respondent does not contest the claim or raise objections to the existence or validity of the arbitration agreement, the arbitration may proceed, notwithstanding the admissibility or merits of such objections, unless the Registrar is not satisfied as to the existence of such arbitration agreement.
- Defenses of the parties: Parties have the right to assert defenses such as lack of jurisdiction or prior defenses, which leads to a suspension of the time limits for defending against the claim or counterclaim.
- Right to amend: Parties may amend or supplement their claim or response in the course of the proceedings and before the oral hearing as long as the connection with their previous submissions is maintained.
- Procedure for taking evidence: The registrar decides on the points in dispute, sets deadlines and orders the taking of evidence. An oral hearing takes place at which evidence is taken in the form of affidavits, statements by experts and oral statements by the parties.
- Party statement: The oral hearing also includes the confession evidence, where parties can make their statement on the matter.
- Witness statements and expert evidence: The number of witnesses will be limited to five, but may be increased at the discretion of the Director. Expert witnesses may appear at the direction of the court to confirm their opinions or provide additional information.
- Informative evidence: Parties may submit official documents provided for in other laws.
- Hearing on the case: The presiding judge conducts the hearing, evidence is taken and parties have the right to make oral statements on the case.
- The arbitration award: The court may decide the matter in a single award or by partial awards. The deadline for the award is sixty (60) working days, as opposed to the previous deadline of thirty days.
- Appeal against the arbitration award: Appeals against the arbitration award include various procedures. Clarification must be provided within five working days of notification of the award. The judge’s award is normally final, except in the case of a request for clarification. No appeal may be lodged in judicial arbitration proceedings unless this has been provided for in the arbitration clause and the time limit for lodging an appeal is ten working days. The action for annulment may be filed within fifteen stock exchange working days and includes new grounds such as procedural errors, contradictions and substantial impairment of the guarantees of equality.
- Non-appealability of interim decisions: Only decisions in certain cases can be challenged, including challenges to the validity of the arbitration agreement, lack of jurisdiction and preliminary objections.
- Expedited arbitration proceedings: The claimant can request an expedited procedure in the statement of claim, which must be accepted by the defendant. An oral hearing is held to clarify points of compromise and evidence. The arbitration award must be issued within a specified period.
- Rates and fees: Various fees are set for mediation, conciliation and arbitration proceedings, depending on the type of proceedings and the amount claimed. Discounts may be granted and the BCBA Board sets the fees for proceedings without an amount.
These provisions of the Arbitration Ordinance automatically apply to ongoing proceedings, provided that acquired rights are not affected.
