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Perspectives of International Arbitration in Latin America - Vol. 17 No. 4 ARIA 2006

Author(s): 
Alexis Mourre
Page Count: 
18 pages
Published: 
December, 2008
Jurisdictions: 
South America,
Central America,
Caribbean,
Argentina
Practice Areas: 
Investment Disputes,
Arbitral Adjudication,
Agreement to Arbitrate,
Powers of Arbitrators,
Arbitral Awards,
Contractual Expansion or Limitation of Judicial Review,
Jurisdiction and Powers of the Courts in Matters of Arbitration Generally
Tags: 
Latin America,
Calvo Doctrine,
Constitutional Law,
Investor-State Arbitration
Author Detail: 

Alexis Mourre - Partner, Castaldi Mourre & Partners, amourre@castaldimourre.com.

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Description: 

Originally from American Review of International Arbitration - ARIA

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Latin America has always had an ambivalent relationship with arbitration. Following a history of distrust, arbitration has been embraced on most of the continent. Recently, however, there has been a return of particularistic and nationalistic concerns in many countries of the region.

I. THE ORIGINS: NATIONALISM AND THE CALVO DOCTRINE

At the origins of the relative distrust towards arbitration in Latin America is a remote episode in Argentine history. In 1838-1840, France launched a military intervention to force the province of Buenos Aires to grant French citizens the same privileges as those enjoyed by Englishmen, who were exempted from military duties. France then blocked the Buenos Aires harbor, destroying many Argentine ships, and the population of Buenos Aires retaliated by attacking the French population.1

The French government tried to justify its aggression before the international community by presenting itself as defender of principles of universal justice against a foreign country ignorant of the ius gentium. The hostilities led to the signing of the Arana-Mackau Treaty, Article 1 of which provided for arbitration to determine compensation for the French residents of Buenos Aires harmed by the popular uprising. A six-member arbitral tribunal was constituted, three members appointed by Argentina, and three by France. In the event of a disagreement on the nomination of the chairman of the arbitral tribunal, it was agreed that the chairman would be appointed by a third country chosen by France. 

By adopting the Arana-Mackau treaty, Argentina agreed to enter into an arbitration agreement with France. This favorable attitude regarding arbitration was subsequently extended when, in 1843-1850, an Anglo-French coalition organized a naval intervention culminating in a blockade of the Montevideo harbor. The parties then decided to arbitrate their dispute, and in 1864, named the President of Chile as sole arbitrator. The latter rendered an award on August 1, 1870, rejecting British demands and finding that a nation in a state of war is free to close its ports to commerce.