Criminal Law and Arbitration Laws
Introduction
The arbitral agreement, although the first step to explore and the obligatory reference in the international commercial arbitration is the arbitration agreement because its validity depends on the complete effectiveness of the institution, the order that we have imposed as we refer to supra, leads us to addressYour treatment in this instance. Provides article 4 of the agreement that the arbitral agreement must occupy an outstanding place in the base contract and be clearly readable. It is required that it be agreed in good faith giving equitable treatment to the parties, particularly when it comes to adhesion contracts. It is commendable that the guidelines that must be observed in relation to this contract have been included.
Developing
The established requirement responds to the need to prevent the quality of volunteer that characterizes arbitration by inclusion of commitment clauses in adhesion contracts, which impose on the weak part a non -dear submission to the weak. According to the following article, the arbitration convention is autonomous in relation to the contract concluded between the parties. Consequently the absence or disability of this, does not entail the nullity of the arbitration convention. The arbitration convention.- That the New York Convention of one thousand nine hundred and fifty -eight calls in writing. And the Panama Convention of one thousand nine hundred and seventy -five, agreement of the parties.
It is practically defined in all Latin American arbitration laws. But also the laws of these countries use various denominations and nomenclatures. The Bolivian and the Ecuadorian call it for example arbitral agreement, the Brazilian Agreement of Arbitragem, and the Guatemalan Arbitration Agreement. A clear definition of arbitral convention is in the Agreement on International Commercial Arbitration of MERCOSUR, whose article 2, letter e, says: Arbitration Convention: Agreement by which the parties in question decide to submit to arbitration some or all the controversies that have arisenor may arise between them regarding contractual relationships.
May adopt the form of a compromise clause included in a contract or that of an independent agreement. This conceptualization that the Mercosur agreement has limited to contracts, is a transposition of the definition of (arbitration agreement) proposed by article 7.1 of the Model Law of the United Nations Commission for International Commercial Law (CNUDMI) of the year one thousand nine hundred and eighty -five and is otherwise contained in the local laws of Latin America, successive or prior to the same agreement on arbitrationof Mercosur. The characteristic aspects of Latin American arbitration laws.
They are on the one hand the requirement that the agreement is recorded in writing and on the other hand the precision that said agreement may appear in a contract (compromise clause) or constitute a separate agreement (arbitration commitment). The International Center for Arrangement of Differences Relative to Inversion. 1 (2)), which will be taken by means of conciliators and referees designated by the parties.
In such a way that the International Center for Arrangement of Investment Differences maintains a list of conciliators and a list of referees – not exclusive – composed of qualified persons who enjoy wide consideration and recognized competence in the field of law, commerce,industry or finance, which are designated by the contracting states (4 people per state per list) and by the president of the International Center for Arrangement of Investment Differences (may designate 10 per list) and will appear in these for periods ofsix years that can be renewable.
The jurisdiction of the International Center for Arrangement of Differences related to Investments. It has been found somewhat limited, in the sense that it extends exclusively to the conflicts that are derived from investments that arise between a contracting state and a national of another state that is contracting, as long as, the parties have consented in writing to submit them to submit them to submit themTo said organ. Types of arbitration: arbitration in general can host different typologies according to the specific procedure or focus. So you can distinguish: private or state arbitration. Arbitration of Law or Consciousness.
Civil and Commercial Arbitration. Multilateral or bilateral arbitration. Institutional arbitration and ad-hoc. As well as the National and the International. However, in the case of international commercial arbitration, it is tedious. The arbitration called statutory could also be added to this classification, as the name implies, it is the content in the statutes of the various commercial companies and the testamentary (included in a will).
But except in the first case, that it is a specific arbitration for commercial companies, testamentary arbitration is not a figure of commercial law. If not rather a figure that fits for obvious reasons within the framework of the provisions of civil law. There are those who argue that it can also be included in this classification to the mandatory arbitration and the volunteer. And this is a mistake that can be considered methodological and even epistemological because legal things and categories cannot be classified, so they are but therefore they are essence. Indeed, if it has been demonstrated and arbitration is understandable, it is fundamentally voluntary.
conclusion
It cannot be classified as a type or variable to the so -called mandatory arbitration. A law given in our Peru during the government of Alberto Fujimori (State Contracting and Procurement Law) established in the ART. 55 of your unique ordered text (D.S. 012-2001-PCM) that there is mandatory arbitration, this is an unlawful, illegal and unconstitutional norm because the constitution itself of Peru (1993) establishes that arbitration is an exceptional jurisdiction that has a voluntary character as expressly indicated by arts. 1 and 33 of Law 26572, General Law of Arbitration. In such a way that this rule that refers to arbitration mandatory is unlawful.
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