Björn Arp


International commercial arbitration has become regulated in an increasingly uniform manner through texts such as the UNCITRAL Model Law and the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. Despite the apparent uniformity, state courts still encounter instances of unclear and incomplete regulations of arbitration-related matters. This article focuses on the practice of courts in Latin America that interpret arbitration-related regulations and fill gaps with the help of a comparative jurisprudential analysis. The article reviews this jurisprudence to determine what impact, if any, landmark cases from France, Switzerland, the United Kingdom, the United States, and other prominent arbitral jurisdictions have had on those jurisdictions. This review shows that state courts in Latin America are aware of the existence of foreign landmark cases in advanced jurisdictions in the area of international commercial arbitration and they apply them to craft their own national jurisprudence on these matters. Across Latin America, each national jurisdiction reviews and understands the jurisprudence from foreign countries in a different way and does not necessarily apply jurisprudential concepts or doctrines developed in foreign landmark cases in the same way. The study critically assesses the epistemological challenges related to the use of the comparative method, and the inherent challenges of the comparative law approach, which is not a source of law in civil law countries. To these methodological challenges add the linguistic barriers and the lack of access to the sources of knowledge of foreign judicial practices.



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