Originally from World Arbitration Reporter (WAR) - 2nd Edition

Preview Page

I.   INTRODUCTION: ARBITRATION IN EL SALVADOR–HISTORY AND INFRASTRUCTURE

A. History and Current Legislation on Arbitration

1. Historical evolution of law relating to arbitration

It can be said that arbitration has always been part of Salvadoran history. Before concepts such as alternative dispute resolution (ADR) came into vogue, arbitration was already part of the constitution and the country’s laws, and except for three years, it has been part of its history since the creation of the republic.

After the independence from Spain in 1821, El Salvador was the first country in the region to have a constitutional assembly in March 1824.  The first constitution is dated June 12, 1824. The first Central American constitution dates five months later, November 22, 1824.

El Salvador´s first constitution clearly understood what arbitration was, raising it to a constitutionally protected right for the citizens to arbitrate their differences.  Article 58 stated, “no person may be denied its right to terminate his/her differences by arbitrator judges named by the parties, whose decision must be executed unless the parties in the compromis expressly reserved their right to appeal it”. 

The following constitution of 1841 modified the language kept arbitration as a means to terminate a dispute, but it reserved it for cases where there was already ongoing litigation.  In the part that refers to arbitration, Article 89 stated: “The right to name arbitrators in any state of litigation, is inherent in every person and the decision handed down is not subject to appeal, if the parties to the compromis did not reserve this right expressly”.  Curiously, another new addition regarding litigation in this constitution is that it added a new requirement: that all litigation must first go through a conciliation phase.