Jason Ruiz, in-house counsel
Rodrigo Castillo de la Cerda, independent international arbitration counsel
Laws and Regulatory Framework
Guatemala adopted the UNCITRAL Model Law on International Commercial Arbitration (“Model Law”) in 1995. However, it adopted the first version of the Model Law and never incorporated the subsequent revised version of 2006 into its domestic legislation. It has been 38 years since Guatemala signed and ratified the New York Convention on the Recognition and Enforcement of Arbitral Awards of 1958 and 42 years since it signed and ratified the Inter-American Convention on International Commercial Arbitration of 1975 (“Panama Convention”).
In the first half of the year, students José Dougherty, Julián Flores and Luis Aballi, filed a constitutional action (“Acción de inconstitucionalidad”) to annul and change the interpretation of the provisions regarding arbitrability of the Guatemalan Arbitration Act. The current limitation states that all the proceedings for which Guatemalan law already provides a specific procedure cannot be resolved by arbitration. However, if the Constitutional Court of Guatemala decides to adopt the interpretation and the arguments of this constitutional action, Guatemalan parties and arbitrations seated in Guatemala would have a broader scope of subject matters that could be resolved by arbitral tribunals, like lease agreements or shareholder disputes.
During the third quarter of the year, the Guatemalan Congress discussed the “iniciativa 6141” bill, which eliminated the possibility of opting for arbitration in public procurement contracts. Finally, the Guatemalan Congress approved Decree 46-2022, a law for the promotion of foreign investment, which provides for relevant guidance on what constitutes a foreign investment under Guatemalan law, tax benefits for foreign investors and so on. However, this law does not provide an exhaustive list of benefits for investors. It is unclear to what extent this protection to foreign investors is supposed to be granted. Other authors have analyzed how similar laws in other Latin American jurisdictions have been interpreted in international investment arbitrations, mainly focusing on whether laws for attracting and protecting foreign direct investment actually include protection against regulatory changes.
Despite best efforts by some stakeholders, Guatemala has a long way to go before it can be considered an arbitration-friendly jurisdiction.
Relevant Case Law for Guatemalan Arbitration in 2022
One of the most relevant commercial arbitration cases for 2022 in Guatemala is DHK Finance v. Banco de los Trabajadores, which illustrates how arbitration law deals with issues of corruption. This case involved a criminal investigation by the Comisión Internacional contra la Impunidad en Guatemala (“CICIG”) and how a stock purchase agreement was allegedly procured through corruption and bribery. However, a US Court recently confirmed the arbitral award issued by the sole arbitrator, issued under the Inter-American convention.
In the same line, the case Sigma Constructores, S.A. v. Republic of Guatemala (III), CENAC Case No. 11-2019 illustrates how the principle of comity is applied in international commercial arbitration, particularly in arbitrations with a sovereign State, under contracts governed by administrative law for the construction of infrastructure projects.
This year brought several decisions regarding investment arbitrations with the Republic of Guatemala, particularly in the electricity and infrastructure sectors. For example, IC Power Asia Development Ltd. v. the Republic of Guatemala, PCA Case No. 2019-43 -in relation to which Guatemala has recently reaffirmed its application for a default judgment before a New York federal court, where it seeks to enforce a USD$ 1.8 million award against IC Power-, or the long-standing saga of cases of Grupo Energía Bogotá (“GEB”) vs. the Republic of Guatemala -where the proceedings for consolidation have concluded in accordance with an agreement of the involved parties-. Speaking of old sagas, Teco v. the Republic of Guatemala -which was initiated in 2010- was finally settled for USD$ 46 million, after a narrative that included three annulment attempts and a previous payment of around USD$ 37 million in favor of the investor after Guatemala risked default upon Teco’s successful application for a restraining notice before New York courts back in November 2020. On its part, Energía y Renovación v. the Republic of Guatemala started moving forward, for the arbitral tribunal decided to join the objections to jurisdiction to the merits of the dispute. Interestingly, Guatemala changed the course of its legal team for the dispute against Energía y Renovación, where it appointed Greenberg Traurig’s partner Daniel Pulecio-Boek among other of its members to represent it in these proceedings.
On an equally relevant note, Guatemala’s Territorial, Insular and Maritime Claim (Guatemala/Belize) before the International Court of Justice saw a new development as on 16 November 2022, Belize initiated proceedings before the same court to claim Sovereignity over Sapodilla Cayes (Belize v. Honduras), a territory over which -as put by the Government of Guatemala in an official press statement– Guatemala asserts sovereignty within its dispute with Belize. Moreover, Guatemala also criticized the new claim, for it was filed shortly before Guatemala’s deadline to submit its written reply to Belize’s counter-memorial on 8 December 2022.
On 8 December 2022, the Republic of Guatemala and the Permanent Court of Arbitration signed a Cooperation Agreement with the purpose of strengthen their relationship and work together for the promotion of arbitration and other dispute settlement mechanisms for international disputes. The agreement is meant to allow for an open communication channel between both parties and reinforce the rol of Guatemala as a signatory of the 1899 and 1907 Convention for the Pacific Settlement of International Disputes.
Although based in Panama, the recently launched Institución de Resolución de Conflictos de Blockchain y Tecnología set its sights on providing its services as an arbitral institution in the Guatemalan market as part of its short-term business plan, which foresees the specialized administration of blockchain and technology related disputes across Latin America.
Finally, this year Guatemala Very Young Arbitration Practitioners joined forces with over 100 arbitration practitioners in Guatemala for a first of its kind piece of literature that will be published during 2023, aiming to bridge the gap between very young arbitration enthusiasts and seasoned professionals while capturing the otherwise diffuse knowledge in the field and creating a sense of community in the market.
ABOUT THE AUTHORS:
Jason Ruiz currently works as in-house counsel for a software company that develops products on the Bitcoin Lightning Network. This is his fourth year as coach of the Willem C. Vis Moot team at Universidad Francisco Marroquín, where he also works as an assistant professor of Private International Law. In addition, he is working on his thesis to conclude his master’s degree in “The regulation of electricity markets in Central America.”
Rodrigo Castillo de la Cerda is an independent international arbitration counsel, covering mainly pharmaceutical, tech, finance and energy disputes. He holds an LL.M. in International Dispute Settlement (University of Geneva / IHEID), is a lecturer for international arbitration (Universidad Rafael Landívar) and an active co-founder of GT VYAP.