Originally from European International Arbitration Review

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I. Introduction 

The purpose of this article is to explore the extent to which the parties’ pleadings set limits on the arbitral tribunals’ powers under Argentine law. May the arbitral tribunal rely on legal provisions not invoked by any party? May the arbitral tribunal disregard the law chosen by the parties and base the award on a different law or rules of law? May the arbitral tribunal take into account facts not raised by any party? 

In Argentina, it is widely accepted that judges have the power and duty to decide legal controversies in accordance with the applicable law, which includes the power to evaluate the facts of the case under the legal rule that they consider to be applicable, irrespective of the legal provisions invoked by the parties. This power derives from the iura novit curia principle, which basically means “the judge knows the law”.   However, this power is limited by another relevant principle, grounded in the constitutional guarantee of due process: the principle of congruence.  According to this principle, there must be a correlation between the parties’ submissions and the judge’s decision, which cannot deviate from the facts invoked and proven by the parties.  How is this tension between the iura novit curia principle and the principle of congruence resolved in Argentine case law? To what extent will Argentine judges analyze the scope of the arbitrators’ powers in light of Argentine judges’ powers?

In this article, I will evaluate whether the arbitrators’ exercise of any of the following powers may lead to the annulment or non-recognition of an award: (i) the arbitral tribunal’s power to make its own legal inferences from the factual basis proven by the parties; (ii) the arbitral tribunal’s power to apply the governing law to interpret, supplement or correct a contract; (iii) the arbitral tribunal’s power to reply upon the legal sources it deems applicable even if they are different from the law or rules of law chosen by the parties and (iv) the arbitral tribunal’s power to order, independently from the parties’ pleadings, the remedies that follow from the sources of law it deems applicable.