On March 20th, 2017, the National Court of Justice issued a resolution entitled "Rules for the Annulment of Arbitral Award". The resolution sought to define a clear procedure to adjudicate the annulment actions against arbitral awards established in Article 31 of the Arbitration and Mediation Act, which provides the following:
“... The annulment action against an arbitral award may be filed before the arbitrator or arbitral tribunal, for the adjudication of the corresponding president of the superior court of justice, within ten days from the date it became final. Once the annulment action has been filed, the arbitrator or arbitral tribunal within a period of three days, shall refer the case to the president of the superior court of justice, who shall resolve the action within the term of thirty days counted from the date that it first knew the cause. The action of annulment presented outside the indicated term, will not be considered filed and will not be accepted for proceedings...”
With this resolution, the heated discussion about whether or not ordinary or extraordinary appeals are available against the decision issued by the President of the Provincial Court is left aside, as it states:
“Art. 4.- From the decision issued by the President of the Provincial Court, there will be no appeal, except for clarification or extension.”
However, it is not clear whether the parties may file an Extraordinary Action of Protection against the decision handed down in these proceedings. The Constitutional Court, in previous occasions, has indicated the availability of this constitutional action, even, in against the arbitration award itself for the protection of rights guaranteed in the Magna Carta.
Leaving aside this question, it is necessary to analyze whether Article 4 of the resolution, quoted above, is a triumph for arbitration or not. On the one hand, it is clear that both from the point of view of the parties and from that of society at large, it is not healthy to perpetuate conflicts. Therefore, a definitive solution to the controversies is desirable. In this sense, the resolution in question seeks to accelerate the proceeding in an annulment trial.
On the other hand, the fact that the fate of a decision (arbitral award) is left solely on the hands of the corresponding President of the Provincial Court creates uncertainty because the award could be invalidated. Especially considering that an arbitral award is the result of an expensive procedure, which has been decided by specialized arbitrators, almost always appointed by the parties, and which, in most cases is complex, with a large amount of evidence and documents. In this regard, there are many jurisdictions where decisions regarding the annulment of arbitral awards can be reviewed, which has resulted in the highest judicial bodies in such jurisdictions issuing the most relevant decisions in the field.
Therefore, the question remains, whether this speed will sacrifice arbitration practice and the quality of decisions. What is clear is that the mere fact that the National Court has issued a ruling on arbitration practice is good news. We hope that along with this,other initiatives that seek to train the Presidents of the Provincial Courts will come.