Key Insights from Buenos Aires
THE AUTHORS:
Juan Ignacio Massun,Legal Counsel at the Permanent Court of Arbitration
Anna Chiara Amato, Assistant Legal Counsel at the Permanent Court of Arbitration
On 9 October 2024, the Permanent Arbitration of Court (PCA) held its second conference in Buenos Aires, celebrating both the 125th anniversary of the PCA and the fifth year since the opening of its Buenos Aires office.
Set in the inspiring Palacio San Martin, the conference brought together distinguished State representatives, practitioners, and experts from the region to celebrate the PCA’s long-standing commitment to international justice, peace, and the rule of law. The PCA Buenos Aires Conference took place after similar events held at the Peace Palace, The Hague (where the PCA’s Members of the Court gathered for the first time in 25 years), and in Singapore. As it has done throughout this anniversary year, the PCA invited the international arbitration community to identify the latest trends and challenges in dispute resolution to better prepare the PCA to fulfill its mandate — enshrined in the 1899 Convention for the Pacific Settlement of International Disputes (the “1899 Hague Convention”) and in the 1907 Convention for the Pacific Settlement of International Disputes (the “1907 Hague Convention”) — to be “accessible at all times”.
Opening Remarks
After a welcoming address by Julian Bordaçahar (PCA), the conference was opened by Minister Rosa Delia Gómez Durán, Legal Adviser at the Argentine Ministry of Foreign Affairs.
Ms. Gómez Durán emphasized Argentina’s traditional commitment to the rule of law and peaceful dispute resolution, as shown by its invitation to host a PCA office. She noted Argentina’s consistent foreign policy in this sense and confidence in the PCA, dating back to the early ratification of the 1899 Hague Convention, and recently confirmed by the approval of the 1907 Hague Convention by the Argentine Congress. The Legal Advisor concluded stressing the need for dispute resolution mechanisms to adapt to current changes and expressed hope for continued cooperation between Argentina and the PCA.
Additional opening remarks were given by the PCA Secretary-General Marcin Czepelak. The Secretary-General reflected on the PCA’s resilience through historical challenges, thanks to the visionary framework laid by its founders and its constant mission to adapt and better serve the needs of the international community. A significant milestone mentioned was the resolution recently adopted at the Congress of the PCA Members of the Court, which encouraged stakeholders to explore various dispute resolution methods beyond arbitration within PCA in the fields of inter-State, investment, and contractual disputes.
Furthermore, Secretary-General Czepelak addressed how the opening of the PCA Buenos Aires office and its activity in recent years speak words of Latin America’s contributions to peaceful dispute resolution, with Latin American cases now comprising about 25% of the PCA’s workload.
Finally, the Secretary-General reiterated the institution’s commitment to adapting and fostering international collaboration for, at least, another 125 years.
Keynote Lecture by Professor Kauffman-Kohler
In her keynote lecture, Prof. Gabrielle Kaufmann-Kohler explored the origins and evolution of the PCA, as understanding its past is crucial for envisioning its future. She highlighted how the PCA’s broad mandate and adaptable structure have enabled it to thrive over the last 125 years, positioning it as a key player in international dispute resolution. Accordingly, she identified emerging global challenges — such as climate change, business and human rights, and post-conflict mass claims. Additionally, she pointed out the PCA’s vital role in recent high-profile arbitrations, underscoring its relevance in international law and in public interest disputes in general.
Looking ahead, Prof. Kaufmann-Kohler expressed confidence in the PCA’s ability to anticipate future disputes and adapt to the evolving needs of international dispute resolution in a complex world.
Morning Debate: The Resolution of Contractual Disputes
The first panel, moderated by Juan Ignacio Massun (PCA), revolved around contractual disputes. The panel, consisting of Claudia Frutos-Peterson (Curtis), Joaquín Vallebella (Brons & Salas), Galina Zukova (Zukova Legal), and María Elsa Uzal (Argentine National Commercial Court of Appeals), delved into the growing relevance of the PCA in contractual arbitrations, often involving States and State-entities. The PCA, originally created for inter-State disputes, has evolved to include within its mandate contractual cases, which now make up 45% of its caseload.
As a general remark, all the speakers concurred that the PCA’s flexibility and its ability to provide an institutional anchor for arbitrations under the UNCITRAL (United Nations Commission on International Trade Law) Arbitration Rules (2021) offer legitimacy and neutrality to proceedings. This makes the PCA a preferred institution for State entities that are increasingly exploring settling their disputes under a contractual framework rather than in the context of investment treaty disputes.
The conversation then shifted to arbitrations involving international organizations. Dr. Zukova noted how the PCA’s intergovernmental status makes it a natural choice for organizations and how the PCA administers complex disputes with international entities, including those between the United Nations and its contractors. She illustrated how these arbitrations often present unique challenges, such as the absence of a fixed legal seat and the application of non-national laws like the UNIDROIT (International Institute for the Unification of Private Law) Principles of International Commercial Contracts (2016).
Next, Mr. Vallebella discussed Argentina’s experience with renewable energy disputes, specifically those arising from the Renovar Program. All of these disputes were administered by the PCA under the UNCITRAL Rules. Mr. Vallebella emphasized the PCA’s ability to address practical issues like the appointment of arbitrators and tailoring the transparency and confidentiality regime of these arbitrations to the parties’ appetite for disclosure. Mr. Vallebella stated that the PCA’s presence in Buenos Aires and its agreement with Argentina have further solidified its role in managing these high-profile cases.
Dr. Frutos-Peterson shared insights into Mexico’s approach to contractual disputes, especially in the energy sector. In the last decade, Mexico and its National Hydrocarbons Commission have been including in their contracts UNCITRAL arbitration clauses, with the PCA acting as appointing authority and The Hague as the seat. Mexico’s shift towards using PCA for contract-based disputes reflects a growing trend in Latin America, where States are increasingly relying on sophisticated contractual arbitration clauses to settle disputes related to sensitive areas, such as natural resources.
Judge Uzal explored Argentina’s evolving arbitration framework and discussed how the National Commercial Court of Appeals has embraced arbitration, highlighting key rulings that reaffirmed the finality of arbitral awards under Argentine law and the UNCITRAL Rules. Judge Uzal expressed that these decisions underscore the growing trust in arbitration within Argentina’s judicial system, as well as its commitment to interpret UNCITRAL instruments in line with international standards.
Finally, Dr. Zukova, as Member of the Court, echoed the resolution adopted in The Hague to revitalize the reliance on conciliation and mediation in international disputes. She foresees a growing trend towards the adoption of multi-tier dispute resolution clauses.
Afternoon Debate: The Resolution of Investment Disputes
The second panel, moderated by Julian Bordaçahar, discussed investment disputes and featured Sandra González (Ferrere), Ana María Larrea (Attorney General’s Office of Ecuador), Guido Tawil, and Raúl Vinuesa (independent arbitrators). The panel discussed
- The reform of investor-State dispute settlement (ISDS);
- Latin America’s experience with investment arbitration;
- The role of conciliation and mediation in investment disputes, and
- The future of investment arbitration.
The first discussion covered the possible reform of the ISDS, led by UNCITRAL’s Working Group III. The panel addressed various criticisms and challenges raised by States that have prompted efforts to reform ISDS as well as the results of the Group’s first seven years of work. Some speakers expressed concern about the potential that the planned changes may have negative impacts, such as overturning existing elements that do work. Others noted that Working Group III may need to better incorporate investors’ perspectives, if it seeks to establish an alternative mechanism that is perceived as legitimate and neutral by all stakeholders.
The second topic focused on Latin America’s experience with investment arbitration. The discussion traced the region’s complex history with ISDS and the influences of the region’s Calvo and Drago doctrines in the current ISDS framework. The panelists agreed that the perception that Latin American States may be against ISDS does not accurately reflect the region’s actual position. Latin American States actively participated in a significant number of investment disputes and, despite criticisms of the system, have adopted a nuanced approach, engaging with ISDS mechanisms as a necessary tool to attract investment.
The panel then shifted to the role of conciliation and mediation in ISDS and its potential for growth. The speakers discussed the benefits while also noting challenges like public opinion opposition, resistance within governments, and the need to develop processes to handle negotiations appropriately.
Finally, looking ahead to the future of ISDS, the speakers shared their views on the PCA’s evolving role, noting its neutrality and expertise. The consensus was that, while ISDS continues to evolve, new challenges arise, and reforms are being considered, the PCA remains a key player in facilitating fair dispute resolution.
Closing Remarks
The conference was closed by the remarks from Andrés de la Cruz, Argentina’s Deputy Treasury Solicitor, Carlos Rosenkrantz, Vice-President of the Argentine Supreme Court, and the PCA Secretary-General.
Mr. De la Cruz discussed Argentina’s recently passed Law No. 27,742 on “Bases and Starting Points for the Freedom of the Argentines”, which established an incentive regime for large investments (so-called “RIGI”, for its Spanish acronym). This program is designed to promote foreign investment in Argentina and includes dispute resolution provisions for inter alia arbitration under the PCA Rules. Mr. De la Cruz noted that providing investors with access to effective dispute resolution was a priority of the current Argentine administration and key to fostering investments in Argentina.
Judge Rosenkrantz highlighted the similarities and differences between arbitration and judicial activity, concluding that both systems contribute equally and in their own way to the peaceful resolution of disputes, with arbitration and judicial processes complementing each other in their shared pursuit of justice and peace.
Finally, following Judge Rosenkrantz’s remarks on the need for cooperation between judges and arbitrators, Secretary-General Czepelak echoed his conclusions and agreed on the need to further develop the already substantive collaboration between judicial courts and arbitration tribunals in Latin America and how the PCA Buenos Aires office can be a catalyst to promote more and better arbitrations in the region.
Conclusion
The PCA’s second Buenos Aires Conference was an inspiring occasion to bring together the region’s arbitration community and reflect on the region’s and the PCA’s historical contributions to the peaceful resolution of disputes. Following events in The Hague and Singapore, the PCA Buenos Aires Conference showcased the institution’s commitment to make itself available to all its Contracting Parties, regardless of geography. The PCA has a wide mission in terms of its physical presence, but also in the range of disputes under its administration: from contractual disputes involving States, State-entities, international organizations, and other public interests (such as business and human rights and climate-related cases), to ISDS and inter-State disputes. The conference highlighted the evolving challenges that the international community faces and how it may rely on the PCA — as it has done for the last 125 years — to settle disputes peacefully.
ABOUT THE AUTHORS
Juan Ignacio Massun has been Legal Counsel at the Permanent Court of Arbitration since August 2018. Juan also serves as Deputy PCA Representative in the Argentine Republic. He graduated with a Juris Doctor from the University of Buenos Aires in 2017 and attended The University of Texas School of Law during the fall of 2017. Juan was also a member of the Executive Committee at Argentina Young Arbitration Practitioners (AYAP).
Anna Chiara Amato has been an Assistant Legal Counsel at the Permanent Court of Arbitration since September 2024. Anna Chiara graduated with a Juris Doctor from LUISS University (Rome) in 2017 and pursued an LL.M. in International Law and Justice from Fordham Law School (New York). She is a Ph.D. candidate in International and European Law at Bocconi University (Milan) and a member of the Executive Committee of the Italian under-40 Arbitration Association.
*The views and opinions expressed by authors are theirs and do not necessarily reflect those of their organizations, employers, or Daily Jus, Jus Mundi, or Jus Connect.
