Author: Alexis Mourre*
Published: December 2008
| Topics: Investment Disputes Arbitral Adjudication |
Description: 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.
*Partner, Castaldi Mourre & Partners. This is an expanded version of the presentation made by the author at the ICC UK National Colloquium held in London on November 6, 2007 on “Regional Perspectives in International Commercial Arbitration.” The author warmly thanks Alfredo De Jesus for his helpful comments and suggestions.