The court decisions available on this website interpret and apply the New York Convention. These court decisions are published in the Yearbook Commercial Arbitration since its Volume I (1976).
For instructions on how to search for court decisions per topic and per country in this website, please refer to our helpful access guide here.
In a landmark decision, the Supreme Court of Justice set aside the decision of the Suprema Corte de Justicia of the Province of Buenos Aires (ARGENTINA 7), because it held that Art. V(2) of the New York Convention does not grant the appellate court of exequatur the power to reintroduce on appeal a public policy objection that was denied in a final manner in the first instance.
Corte Suprema de Justicia de la Nación, 5 August 2021
(Milantic Trans S.A. v. Ministerio de la Producción (Astilleros Río Santiago))
The court discusses general questions relating to the interpretation of the Convention as an international treaty, also in respect of the methods of interpretation laid down in the 1969 Vienna Convention; the relationship between the New York Convention and the UNCITRAL Model Law and Recommendation 2006.
The court discusses the principle that the procedure for the enforcement of awards under the Convention is governed by the lex fori, as well as procedural issues (such as the competent enforcement court) not falling under the specific cases of ¶¶ 302-307.
Public policy: The court discusses the effect of other alleged violations of public policy on the recognition and enforcement of an arbitral award, such as contradictory reasons, manifest disregard of the law (US), etc.
The Supreme Court affirmed the decision of the appellate court (ARGENTINA 6 A and ARGENTINA 6 B, which also found that litigation tax should be paid on exequatur ptoceedings), which had granted partial enforcement of a US award (and its US confirmation decision) after modifying it to comply with the public policy provisions of the Argentinean regime of debt consolidation. Both parties had acknowledged the public policy nature of these provisions; since the claimant had done so by not appealing the decision of the court of appeal, the Supreme Court had no jurisdiction to review this issue. The Court affirmed the holding of the appellate court that an exequatur court had the power under the Argentinean Code of Civil Procedure to modify an award before enforcing it, in order to bring it in line with Argentinean public policy – here, the debt consolidation regime. The Court relied on Art. VII of the 1958 New York Convention, which allowed the party seeking enforcement of a foreign award to rely on a more favourable domestic law, in the interest of promoting the enforcement of foreign awards. The Supreme Court also rejected the arguments raised by Argentina that enforcement should be denied because the arbitral tribunal (i) held, in violation of Argentinean law on the powers of representation, that a document signed by an unauthorized person interrupted prescription; and (ii) erroneously applied the five-year statute of limitations for prescription under Dutch law rather than the one-year time limit applicable to contracts of reinsurance and retrocession under Argentinean law. Both arguments failed because they were not among the grounds for refusal exhaustively listed in the Convention and because they would imply a review of the merits of the arbitral decision, which the Court stressed was impermissible. (See also ARGENTINA 6 A and ARGENTINA 6 B.)
Corte Suprema de Justicia de la Nación, 24 September 2019
(Deutsche Rückversicherung AG v. Caja Nacional de Ahorro y
Seguro, in liquidation, et al.)
The court discusses questions relating to the general approach taken by the Convention to the grounds for refusal of recognition and enforcement, including its pro-enforcement bias, as well as the system of the Convention, under which recognition and enforcement may only be denied on seven listed grounds and the petitioner has only the obligations set out in Art. IV.
The court discusses the principle that the merits of the award may not be reviewed and that the court may only carry out a limited review of the award to ascertain grounds for refusal.
Public policy: The court discusses the effect of other alleged violations of public policy on the recognition and enforcement of an arbitral award, such as contradictory reasons, manifest disregard of the law (US), etc.
More-favorable right provision: The court discusses examples of domestic laws of countries where enforcement of foreign awards is more favorable.
The court discusses this general reciprocity clause, which was inserted in the Convention to remedy the absence in the commercial reservation (Art. I(3)) of a federal-state clause allowing Contracting States not to apply the Convention to awards made in a constituent state or province of a Contracting State which was not bound to apply the Convention.
The Supreme Court denied the appeal against a decision of the appellate court (ARGENTINA 2) which had denied recognition and enforcement of a London award rendered in respect of a contract for the construction of two vessels. The Supreme Court agreed with the lower court that recognition and enforcement would violate public policy – the fundamental principles enshrined in the Constitution – because no valid contract had been concluded between the parties and, as a consequence, no arbitration clause had come into existence. The construction contract was conditioned on the approval by a law of the Province of Buenos Aires. No such law had been enacted. Two subsequently enacted laws and one decree concerning a bank guarantee obtained by the Argentinean seller for building the vessels did not amount to the required legislative approval.
Suprema Corte de Justicia, Province of Buenos Aires, 30 March 2016, A-69572
(Milantic Trans S.A. v. Ministerio de la Producción de la Provincia de
Buenos Aires, (Astilleros Río Santiago et al.)
Public policy: The court discusses the effect of other alleged violations of public policy on the recognition and enforcement of an arbitral award, such as contradictory reasons, manifest disregard of the law (US), etc.
The Supreme Court reversed the decision of the court of appeal (Argentina 1), finding that that court erroneously reviewed an issue – the existence of a charterparty containing an arbitration clause – that had been definitely ruled upon by the arbitrator. Under the 1958 New York Convention, enforcement courts should only verify that the conditions for seeking enforcement set out in Art. IV are met. (See also ARGENTINA 1).
Corte Suprema de Justicia, 24 May 2011
(Armada Holland BV v. Inter Fruit S.A.)
The court discusses the principle that the merits of the award may not be reviewed and that the court may only carry out a limited review of the award to ascertain grounds for refusal.
In a domestic context, the Court referred the parties to arbitration in Argentina, finding that it was irrelevant that the validity of the main contract was disputed. The Court could fill the gap in the law on domestic arbitration, which does not provide expressly for the separability of the arbitration clause, by reference to this principle as recognized in the New York Convention and by courts deciding international commercial arbitration cases.
. Cámara Nacional de Apelaciones en lo Civil y Comercial Federal, Chamber IV, 1 March 2011
(Smit International SA v. Puerto Mariel SA)
The court discusses the principle of competence-competence, including whether the parties “intended to have arbitrability decided by an arbitrator”, and the separability of the arbitration agreement from the main contract.
On 11 February 2010, the Court of Appeals (ARGENTINA 6 A) affirmed the order of the court of first instance that the claimant should pay the litigation tax established by the 1990 Law on Litigation Taxes in respect of all actions commenced before the Argentinian courts, because the present action, which sought exequatur of a US award, did not fall under any of the exemptions provided by the Law or other provisions. By the present decision, the Court dismissed the extraordinary appeal from the first decision, because it found that the latter was not at odds with the evidence of the case, nor did it fail to answer the appellant’s arguments adequately. Also, the appellant failed to substantively challenge the bases for the first decision. (See also ARGENTINA 6 A.)
Cámara Nacional de Apelaciones en lo Civil y Comercial Federal, Second Chamber, 1 July 2010
(Deutsche Ruckversicherung AG v. Caja Nacional de Ahorro y Seguro en Liquidación et al.)
The court discusses the principle that the procedure for the enforcement of awards under the Convention is governed by the lex fori, as well as procedural issues (such as the competent enforcement court) not falling under the specific cases of ¶¶ 302-307.
No prior exequatur is required to seek enforcement of a foreign award under the New York Convention. The appellate court then found that the lower court erred in granting enforcement ex parte and without giving reasons, in application of incorrect provisions of the Argentinean Code of Civil Procedure; by so doing, it violated the respondent’s right to due process. Also, the lower court should have considered that the petitioner failed to submit a duly certified translation of the award and a certification of the signature of the arbitrator who rendered the award.
Cámara Federal de Apelaciones, City of Mar del Plata, 4 December 2009
(Far Eastern Shipping Company v. Arhenpez S.A.)
The court discusses the principle that the procedure for the enforcement of awards under the Convention is governed by the lex fori, as well as procedural issues (such as the competent enforcement court) not falling under the specific cases of ¶¶ 302-307.
The court discusses issues relating to the manner of authentication and certification of the award and/or arbitration agreement.
The court discusses issues relating to the requirements of the translation (translation by sworn translator, translation of entire award etc.) and whether a translation is necessary.
The Contentious Administrative Court of Appeal held that the dispute between the parties – which concerned a shipbuilding contract – was not commercial under Argentinian law. As a consequence, since Argentina made the second, or “commercial”, reservation to the New York Convention, the Convention was not applicable here. The Court explained that the Province of Buenos Aires, through Astillero, acted within its administrative function when it concluded the shipbuilding contract with Milantic, as Astillero entered into the contract to promote a public interest, as opposed to a private interest or benefit.
Cámara de Apelación en lo Contencioso Administrativo, La Plata, 30 August
2007
(Milantic Trans. S.A. v. Ministerio de Producción de la Provincia de Buenos Aires and Astillero Río Santiago)
The court discusses the relevance and determination of the commercial nature of the relationship underlying the award, including in the context of contractual and non-contractual relations.
The Federal Court held on appeal that the first instance court did not exceed its mission by examining, for the purposes of an application to recognize and enforce a London award, whether the charterparty between the parties containing the arbitration clause did in fact exist, rather than – as argued by Armada – merely ascertaining that Armada supplied the necessary documents for requesting enforcement. The Court reasoned that under the applicable New York Convention, the enforcement court must examine whether there is an arbitration agreement in writing between the parties. Far from being an excess of the court’s jurisdiction, an examination of the existence of a valid arbitration agreement is therefore a specific task of the enforcement court. The Court added that some review of the award is necessary in proceedings for the enforcement of foreign awards, as States cannot be expected to accept all foreign decisions without a minimum of control.
Cámara Nacional de Apelaciones en lo Civil y Commercial Federal, Chamber II, 8 May 2007
(Armada Holland BV v. Inter Fruit SA)
Invalidity of the arbitration agreement: The court discusses other cases of invalidity of the arbitration agreement, including that there was no agreement at all or that the party was not a signatory thereto, that the incorrect arbitral institution was chosen, etc.
The Court of Appeals affirmed the order of the court of first instance that the claimant should pay the litigation tax established by the 1990 Law on Litigation Taxes in respect of all actions commenced before the Argentinian courts. The present action, seeking exequatur of a US award, did not fall under any of the exemptions provided by the Law or other provisions; also, the tax could be calculated because the object of the dispute was determined, although it was approximate as the award was in a foreign currency. The essential element for the application of the litigation tax is that the right on which the claim is based may be quantified in monetary terms, as was the case here. The litigation tax need not be paid again for the award’s execution (thus avoiding the risk of double taxation) and the claimant is free to seek the tax’s reimbursement from the other party as part of the reimbursement of the claimant’s costs. (On 1 July 2010, the Court dismissed the extraordinary appeal from this decision, ARGENTINA 6 B.)
Cámara Nacional de Apelaciones en lo Civil y Comercial Federal, Second Chamber, 11 February 2010
(Deutsche Ruckversicherung AG v. Caja Nacional de Ahorro y Seguro en Liquidación et al.)
The court discusses the principle that the procedure for the enforcement of awards under the Convention is governed by the lex fori, as well as procedural issues (such as the competent enforcement court) not falling under the specific cases of ¶¶ 302-307.