FTAA - NEGOTIATING GROUP ON DISPUTE SETTLEMENT
a. Is the jurisdiction a party to the Convention on the Recognition and
Enforcement of Foreign Arbitral Awards, done at New York on 10 June 1958
(New York Convention). If so, are there any reservations? Name the domestic
law that implements these commitments.
Guatemala is a party to the New York
Convention, which was ratified by Executive Order No. 9 - 84 and
Governmental Accord No. 60 - 84.
Guatemala incorporated the following
1. The State shall only apply the
Convention to the recognition and enforcement of awards issued in the
territory of the Contracting State.
2. The State shall only apply the
Convention to disputes derived from juridical relations, contractual or
otherwise, that are deemed to be mercantile relations by domestic law.
The New York Convention governs the
enforcement of arbitral awards, while matters of procedure are governed by
the General Rules for the Conduct of Arbitration under the Panama Convention
The Private International Law Code
(the Bustamante Code), signed on 13 February 1928, was approved by the
Legislative Assembly of the Republic of Guatemala by Decree No. 1575 on 10
b. Is the jurisdiction a party to the Convention on the Settlement of
Investment Disputes Between States and Nationals of Other States, done at
Washington on 18 March 1965 (ICSID Convention)? Is there a domestic
implementing law? Is the jurisdiction a party to any bilateral investment
treaties providing for settlement of investment disputes between a state and
a national of another state?
Guatemala is a party to the Convention
on the Settlement of Investment Disputes between States and Nationals of
other States (ICSID), which was signed by Guatemala on 9 November 1995.
The aforementioned Convention was
approved by the Congress of the Republic through Decree No. 50-96 of 20 June
1996, and ratified on 3 April 2003.
Several Reciprocal Investment
Promotion and Protection Agreements are currently in force in Guatemala.
These have been entered into with the following countries:
Argentina, in force since 7 December
Cuba, in force since 10 August 2002
Chile, in force since 13 October 2001
China-Taiwan, in force since 1 December 2001
France, in force since 28 October 2001
Korea, in force since 17 August 2002
Netherlands, in force since 1 September 2002
c. Is the jurisdiction a party to the Inter-American Convention on
International Commercial Arbitration, signed in Panama on 30 January 1975
(Panama Convention)? Is there a domestic implementing law?
Guatemala is a party to the
aforementioned Convention, which was approved by the Congress of the
Republic of Guatemala by Decree No. 35 - 86 of July 1986.
The New York Convention and the Panama
Convention have both been incorporated into Guatemalan law by Executive
Decree No. 67 - 95, the Arbitration Law, which entered into force eight (8)
days after publication in the Official Gazette of 17 November 1995.
d. Is the jurisdiction a party to any other international agreement related
to international commercial arbitration?
The Bustamante Code, approved by Law No. 1575 of 10
April 1929, provides for a procedure for the Enforcement of Foreign Arbitral
Recently, the Council of Ministers for Economic
Integration (COMIECO) adopted the Commercial Dispute Settlement Mechanism
through Resolution No. 106-2003 of 17 February 2003.
a. What is the source of law for international
commercial arbitration within your jurisdiction? Please cite.
The source of law for arbitration is the Arbitration
Law, Law No. 67 - 95, of the Congress of the Republic of Guatemala.
b. Does the law contain different rules for domestic and international
The primary objective of the
Arbitration Law, as contained in Law No. 67 - 95 of the Congress of the
Republic, is to modernize alternative dispute resolution procedures,
bringing them into line with international arbitration procedures and
eliminating any significant differences between local and international
arbitration. In this regard, our country has entered a new era of
alternative dispute resolution.
c. Are there limitations on the types of disputes that may be arbitrated?
The following may not be submitted to arbitration:
1. Matters on which a binding court ruling has been
issued, except issues relating to enforcement.
2. Issues that cannot be severed from other issues which the parties have
no power to resolve.
3. Matters expressly prohibited by law or in respect of which special
procedures have been prescribed.
4. Labor disputes are also excluded.
d. Does the law specify rules for arbitration or do the parties have
autonomy to set their rules?
There are no specific rules governing
arbitration; rather, what are referred to as “terms of reference” are used.
These are contained in a document drawn up by the arbitral tribunal in
collaboration, where practicable, with all parties to the dispute. This
document sets forth the nature of the dispute, the respective claims of the
parties, and the legal issues to be resolved.
e. What is the role of the courts during an arbitration? May courts
intervene prior to or during the arbitration process?
National courts may intervene during
arbitration proceedings and, where such proceedings are subject to objection
or challenge, the courts may intervene before or during arbitration
proceedings. The courts, however, may only intervene in matters governed by
the Arbitration Law to the extent and in the circumstances provided for by
f. Can the courts grant interim relief pending the outcome of an
Any party to a dispute may request
that the competent court order protective measures as deemed necessary for
the proper protection of the party’s rights.
Any party making such request before a
court does not imply a rejection of the arbitration agreement or of
g. Does the law require citizenship or a particular bar membership for
participation in an arbitral proceeding, as arbiter or representative of a
The following persons may be appointed as arbitrators:
1. Private persons who, on the date of their
acceptance, are in full possession of their civil rights.
2. Unless otherwise agreed by the parties,
nationality shall not be an impediment to such appointment.
3. Members of the Judiciary may not
be appointed as arbitrators, nor may persons who are connected to the
parties or to the dispute.
h. Does the law require that the proceedings be conducted in a particular
The Arbitration Law embodied in Decree
No. 67 - 95 of the Congress of the Republic establishes, for the purposes of
international arbitration, that the parties may freely agree on the language
or languages in which international proceedings are to be conducted. Failing
such agreement, the arbitral tribunal shall determine what language or
languages should be used in such proceedings. Unless otherwise specified by
the parties, this agreement or determination shall apply to all documents
submitted by the parties, all hearings, and any award, decision, or
communication of any kind issued by the arbitral tribunal.
The arbitral tribunal may,
nevertheless, order that any or all documentary evidence be accompanied by a
translation into the language or languages agreed upon by the parties or
selected by the tribunal.
i. Does the law contain mandatory provisions for selecting a specific set of
rules for arbitration proceedings?
The parties are free to agree on the
procedure to be followed by the arbitral tribunal in its deliberations,
subject to the principle of equitable treatment, in that all parties must be
treated equitably and given ample opportunity to assert their rights in
accordance with the basic principles of the right to be heard, the right to
speak in one’s own defense, and equality between the parties. In the absence
of an agreement between the parties and subject to the equitable treatment
thereof, the arbitral tribunal may conduct the proceedings in the manner it
deems appropriate. This includes the power to rule on the admissibility,
relevance and materiality of evidence.
j. Does the arbitration law prescribe rules for decision making by the
arbiters and the form of an award?
Chapter VI, Article 36, of Decree No.
67-95 of the Congress of the Republic, Law on Arbitration, establishes norms
that are applicable to the merits of the case.
k. Is the confidentiality of arbitral proceedings and awards protected by
Domestic law makes no provisions for
the confidentiality of arbitration proceedings or awards; however, Article
30 of the Political Constitution of the Republic of Guatemala stipulates
that “All administrative actions shall be public. Interested parties may, at
any time, request and obtain statements, transcripts, copies and
certificates and may request the production of any file that said party may
wish to examine, with the exception of military or diplomatic documents
relevant to national security, and information provided by persons under
guarantee of confidentiality.”
l. On what grounds will the courts set aside or decline to enforce an award?
Article 47 of the Arbitration Law, Law No. 67 - 95,
provides that recognition and enforcement of arbitration awards made in any
country may only be refused in the following circumstances:
a) At the request of the party
against whom the award is being invoked, where that party proves to the
satisfaction of a competent court of the country in which recognition or
enforcement is sought:
i) that a party to an arbitration
agreement referred to in Article 10 was under some incapacity or said
agreement is not valid under the law to which the parties have subjected
it or, failing any indication thereon, under the law of the country
where the award was made; or
ii) that the party against whom
the award is being invoked was not given proper notice of the
appointment of an arbitrator or of the arbitration proceedings; or
iii) that the award deals with a
difference not included in the arbitration agreement or contains
decisions on matters that go beyond the terms of the arbitration
agreement; provided that, if the decisions on matters submitted to
arbitration can be separated from those that were not, part of the award
that contains decisions on matters submitted to arbitration may be
recognized and enforced;
iv) that the composition of the
arbitral tribunal or the arbitral procedure was not in accordance with
the agreement of the parties, or, failing such agreement, was not in
accordance with the law of the country in which that award was made; or
v) that the award has not yet
become binding on the parties or has been set aside or suspended by a
court of the country in which that award was made, under the law of said
b) When the Court finds:
i) that the subject matter of the
dispute is not one that may be submitted to arbitration under Guatemalan
law ; or
ii) that recognition or
enforcement of the award would be contrary to the public policy of the
State of Guatemala.
m. What is the procedure for enforcement of an award?
Article 48 of the Arbitration Law governs the
procedure for the recognition and enforcement of arbitral awards, to which
the following rules apply:
1. Upon the expiration of the period
of one (1) month, specified in Article 43(3), if the terms of the award
have not been complied with, an application to a competent court for
compulsory enforcement may be made under Article 46(1). Said application
for enforcement shall be supported by the documents listed in Article
2. Where relevant, a certified copy of the ruling of
the court made upon determination of any application for judicial review,
should also be attached.
3. Upon receipt of an application
for enforcement, the court shall grant three-day hearing to the party
against which enforcement is sought. The party may oppose the application
only on the grounds of a pending appeal. This must be established by
documentary evidence forming part of a written objection. In these
circumstances, the court shall order forthwith the suspension of
enforcement pending the outcome of the application for judicial review. If
the appeal is successful, the court, upon receipt of a certified copy of
the decision, shall issue an order denying enforcement.
4. Where the circumstances described
in the preceding item do not arise, and where the considerations listed in
Article 47 do not apply, the court shall issue an order for enforcement
instructing that the obligor be notified and, where applicable, that the
obligor’s property be attached.
5. There shall be no appeal from, or
review of, any determination, whether procedural or substantive, arising
from proceedings for recognition or enforcement of an arbitral award.
6. In respect of matters concerning
the recognition and enforcement of awards for which no specific provision
has been made, these provisions shall be supplemented by the provisions
applicable to the enforcement of domestic judgments, provided that the
application of domestic law does not interfere with the timely and
effective enforcement of an arbitral award.
n. Please list any institutions available within your jurisdiction that
provide international commercial arbitration services. Provide internet
address where available.
Centro de Conciliacion- CENAC-
(Guatemala Chamber of Commerce Center for Arbitration and Conciliation).