Argentine Federal Court of Appeals declares lack of jurisdiction for annulment application against tribunal's decision on jurisdiction | Practical Law

Argentine Federal Court of Appeals declares lack of jurisdiction for annulment application against tribunal's decision on jurisdiction | Practical Law

Francisco M. Gutiérrez (Partner) and Federico Campolieti (Senior Associate), M. & M. Bomchil

Argentine Federal Court of Appeals declares lack of jurisdiction for annulment application against tribunal's decision on jurisdiction

by Practical Law
Published on 31 May 2012 • Argentina
Francisco M. Gutiérrez (Partner) and Federico Campolieti (Senior Associate), M. & M. Bomchil
In a decision rendered on 25 October 2011, and published on 26 April 2012, the Federal Contentious-Administrative Court of Appeals, Chamber II, seated in Buenos Aires, declared its lack of jurisdiction to decide on a request for annulment against an arbitral tribunal's decision on jurisdiction. However, the Court of Appeals redirected the annulment application to the lower court (federal judge).
In Procuración del Tesoro de la Nación v Tribunal Arbitral, Papel de Tucumán SA (Claimant) had commenced arbitration proceedings against the Argentine Republic (Respondent) under the ICC Rules of Arbitration. The arbitral tribunal declared that it had jurisdiction to decide the dispute, rejecting the Respondent's objections as to the existence, validity and scope of the arbitration agreement. The Respondent submitted a request for annulment before the Federal Court of Appeals.
The Federal Court of Appeals declared its lack of jurisdiction to decide on an annulment application against the arbitral tribunal's decision on jurisdiction. Based on its interpretation of Article 763 of the National Code of Civil and Commercial Procedure, the Federal Court of Appeals understood that it could only intervene in applications (either appeal or annulment) against the final award, not against a decision on jurisdiction. However, it ordered that the request for annulment be redirected to the lower court (federal judge).
Under Argentine law, while the Court of Appeal's decision to declare its lack of jurisdiction should be considered correct, the order to redirect the annulment application to the lower court is debatable, since:
  • It is for the arbitral tribunal to determine its own jurisdiction pursuant to the well-established principle of kompetenz-kompetenz.
  • Judicial review of the arbitration, which includes every decision adopted by the arbitral tribunal during the course of the proceedings, should only be exercised once the final award is rendered.