At the federal level and in the City of Buenos Aires, there are three ways of resolving disputes in Argentina.
14.1. By Mediation
Mediation is an alternative dispute resolution method available in Argentina, which is also mandatory in the City of Buenos Aires as a requirement prior to a judicial action in a large number of cases.
Under the Law 26,589 on mediation in the City of Buenos Aires, all information revealed in a mediation process is confidential.
An agreement entered into in the environment of mediation, with the signature of a mediator, may be enforced in a judicial court.
If no agreement is arrived at, the plaintiff is free to institute a judicial claim.
14.2. In Court
Courts are a part of the National Judiciary and enter judgments that are binding upon the parties to the case, except in class actions, where the effect also may be extended to persons who did not participate in the process.
In general, commencing a judicial action requires paying a litigation tax amounting to 3 % of the claim. Counsel fees of both parties, and likewise other expenses, are paid by the losing party. On certain occasions litigation tax, costs and fees can be avoided if the plaintiff shows the court that it is unable to pay such costs (litigation in forma pauperis).
In the case of courts initiated by a consumer, he/she is exempted from the litigation tax and, at the discretion of certain courts, also from the payment of the other expenses, unless the counterparty shows that the plaintiff has sufficient funds to pay such expenses.
14.3. In an Arbitral Tribunal
The parties to a contract may agree therein, or absent such agreement they may agree subsequently at the time the dispute arises, to refer any dispute to an award by an arbitral tribunal.
Under Sections 736 and associated provisions in the Code of Civil and Commercial Procedure, any dispute on rights that can be disposed of by the parties may be referred to a decision by an arbitral tribunal. In general, matters excluded from arbitration are any matters relating to family law, or where public policy is involved. Likewise, for disputes relating to consumer rights in the City of Buenos Aires, there are special arbitral tribunals within the scope of the National Ministry of Economy. Whether this type of dispute may also be referred to arbitration is still unclear.
There are two types of arbitration: (i) at law, in which case the award is based on current legislation, and (ii) by non-legal arbitrators, where the award is entered as the arbitrator deems reasonable.
An arbitral award has the same effect as a court judgment, except that, if the award is not observed in a voluntary manner, it must be enforced by a judicial court.
An award entered by non-legal arbitrators is not subject to appeal, and an award at law may be appealed from by the same remedies as a judgment, unless the parties have waived to do so. Anyway, in either case the nullity of the award may be asserted if the award has been entered outside the provided term or if the award dealt with matters not subject to arbitration.
There is a possibility of appointing institutional arbitrators who are a part of private institutions, such as the Buenos Aires Stock Exchange or Mercado Abierto Electrónico S.A., or independent arbitrators selected by the parties by various means.
14.4. Selection of Applicable Law and Agreed Jurisdiction
In Argentina it is generally accepted that the parties to an international contract select the applicable law, insofar as there is a connection with such law, and provided that there is no violation of public policy rules (generally associated to reorganization and bankruptcy, criminal matters, taxes and transfers of real estate or personal property permanently located in our country).
Likewise, but only in international matters exclusively related to property, the parties may select the venue of foreign courts or arbitrators serving outside Argentina, except in those cases where Argentine courts have exclusive jurisdiction or where the choice is prohibited by law.
In contracts for consumption-related financial transactions, the court having competent jurisdiction is the court in the area of the actual address of the consumer. Any agreement to the contrary is void.
14.5. Enforcement of Foreign Judgments or Arbitral Awards
A foreign judgment or arbitral award may be recognized and enforced in Argentina under treaties entered into by the country where the decision originates, such as the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, made in New York, 1958.
If there is no applicable treaty, at the federal level and in the City of Buenos Aires, the provisions in the National Code of Civil and Commercial Procedure apply. Such code provides different requirements in its sections 517 to 519bis.
A foreign court judgment, in order to be recognized or enforced, must comply with the following requirements:
- The judgment must be final, entered by a court having competent jurisdiction under Argentine legislation on international conflict of laws, and relate to an in personam action or an action on personal property carried to Argentina during or after the foreign lawsuit;
- The defendant must have been personally served upon, and the defendant’s defense must have been guaranteed;
- The judgment must meet the necessary requirements to be considered as such in the venue where it was entered, an the authenticity conditions required under Argentine law;
- The judgment must not affect public policy under Argentine law; and
- The judgment must not be inconsistent with another prior or concurrent judgment entered by an Argentine court.
In the case of a foreign arbitral award, in addition to the above requirements, the following is also necessary:
- The foreign arbitral tribunal must have had valid jurisdiction (i.e. the arbitration must involve only international property matters, and not matters where Argentine courts have exclusive jurisdiction, or cases where agreement upon a different jurisdiction is prohibited by law); and
- The matters may be validly referred to arbitration under Argentine law (i.e. basically matters that may be the subject of a settlement).
The enforcement of a court judgment or arbitral award must be requested to a first-tier court by the exequatur procedure, with an authentic and translated copy of the judgment or award and any items showing that the judgment or award is final, and that the other requirements mentioned above have been fulfilled.
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