Convenio arbitral
Understanding the Arbitration Agreement
Definition and Advantages of Arbitration
- The arbitration agreement is a mutual decision by parties to resolve disputes through arbitration instead of traditional court systems.
- One key advantage is that parties can choose their arbitrator based on expertise and integrity, unlike in judicial settings where judges are assigned by the state.
Formality of the Arbitration Agreement
- The law requires the arbitration agreement to be in writing; however, its absence does not nullify it, making it a formality for easier proof rather than an absolute requirement.
- While it's not mandatory for the agreement to be written, having it documented is advisable to avoid misinterpretations.
Binding Nature of the Arbitration Agreement
- Entering into an arbitration agreement obligates both parties to pursue arbitration; they cannot unilaterally withdraw from this commitment.
- If one party knows they lack merit in their case, they might delay proceedings if allowed to opt out of arbitration, exploiting judicial delays strategically.
Sample Arbitration Clause
Example and Flexibility
- A sample clause from the Lima Chamber of Commerce illustrates how disputes will be resolved definitively through their arbitration rules.
- Parties may use model clauses provided by arbitration centers or create generic clauses that specify arbitrators later.
Composition of Arbitral Tribunal
- The tribunal can consist of either a single arbitrator or multiple arbitrators as decided by the involved parties.
Extending the Scope of Arbitration Agreements
Applicability Beyond Signatories
- The law allows extending the effects of an arbitration agreement to non-signatory parties who seek rights or benefits under its terms.
Distinction Between Non-Signatories and Third Parties
- A non-signatory party is still considered part of the contract despite not signing it; consent can be inferred through conduct under good faith principles.
Situations Involving Third Parties
- There are two scenarios regarding third-party involvement: one where a third party does not wish to participate but has rights affected by arbitration, and another where a third party wants to join but is opposed by existing parties.