Author: Alejandro M. Garro*
Published: June 1990
Description: The traditional reluctance displayed by Latin American countries towards international commercial arbitration has changed significantly during the last decade. The gradual but increasing adherence by Latin American countries to the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (United Nations or New York Convention) and the 1975 Inter-American Convention on International Commercial Arbitration (Inter-American Convention) shows the willingness of several Latin American nations to facilitate the recognition and enforcement of foreign arbitral awards. Moreover, legislative changes in arbitration recently introduced in Colombia, Costa Rica, Paraguay, Peru, Venezuela, Panama, and Mexico reflect these countries’ efforts to promote the reliability and use of commercial arbitration. In recent years Brazil has witnessed the emergence of more than one draft law designed to foster the use of arbitration. A climate favorable to international commercial arbitration may also be perceived in the foreign investment scheme recently adopted by the Andean Pact countries.
This liberal approach towards international arbitration indicates the beginning of an innovative trend toward wider use of commercial arbitration in Latin America. Most Latin American legal commentators and practitioners recognize the need for and advantages of arbitration in resolving transnational commercial disputes. Few, however, have emphasized the importance of promoting the use of domestic arbitration as an alternative and complementary method of dispute resolution. Even fewer legal commentators have explored the tendency of parties to distrust arbitration for settling domestic commercial disputes.
*Alejandro M. Garro, Lecturer in Law, Columbia University; Associate Research Scholar, Parker School of Foreign and Comparative Law. This paper was submitted to the conferences on commercial arbitration organised by the American Bar Association in San Salvador (December 7-12, 1987). San Jose de Costa Rica (February 29 – March 4, 1988), Tegucigalpa (March 7-11, 1988), and Guatemala (March 14-18, 1988). I would like to thank my Central American colleagues for helpful criticisms made to earlier drafts of this paper. Errors of facts and judgment are of course mine.