Vol. 2 No. 2 (2014): Forseti Nº 2

For the second time I have the joy of being able to welcome you to the virtual publication Forseti. From this publication on, each of our issues will revolve around a branch of law. On this occasion we chose the natural method of resolving international commercial disputes: arbitration. This statement is echoed in several articles in this issue.

The first article of this publication is by Emmanuel Gaillard who does not deserve further presentation, explaining the different visions or representations on international arbitration. It affirms on the basis of the 1958 New York Convention that arbitration is a transnational system of justice and an autonomous legal order. This article is compulsory reading for all those who want to know the philosophical bases that inspire international arbitration and the practical consequences derived from representations.

Once I have read this article, I immediately recommend that I turn to the article by Fernando Cantuarias and Jose Luis Repetto, which comments on the theories on the legal nature of arbitration and analyzes the deficiencies of the theory adopted by Peru. In the opinion of the authors and to the extent possible, the Peruvian Constitutional Court should adopt the theory that the civilized world gathers in the matter of arbitration.

If you want to read about specific topics of international commercial arbitration, this issue of Forseti offers three articles on the extension of the arbitration agreement to non-signatory parties. A controversial, debatable question, and in the words of Professor William W. Park, a dilemma for arbitrators. I recommend starting with this article, which comments in a general way on the theory of extension from the point of view of consent and the lifting of the corporate veil.

Landing in Peru, Roque Caivano and Verónica sandler analyze the stipulation in favor of third from the Peruvian law in arbitral matter. Jose Luis Repetto, Andrés Hundskopf and Miguel Valderrama analyze another theory of incorporation of non-signatory parts: the lifting of the corporate veil or alter ego and comment on a well-known Peruvian jurisprudence that can also be found in this edition of Forseti.

Another issue of vital importance in international arbitration is the annulment of the award and its recognition and enforcement before the courts. Mario Reggiardorealizes a complete analysis of the causes of annulment of the arbitral award in Peruvian law. Pablo Mori and Julio Olórtegui comment on article V(1)(a) of the 

New York Convention. For their part, Andrea Jiménez and Yamila Reinides tackle a complex, controversial and current problem of international arbitration: the possibility of recognizing and enforcing an annulled award at the place where it was issued.

As for applicable law, Professor Jose Antonio Moreno, a Paraguayan arbitrator specialized in the matter, introduces us to the lex mercatoria and analyzes all the problems that have been generated at the international level. Alfredo Bullard and Jose Luis Repetto from a Darwinian perspective, analyze the evolutionary process of international arbitration and the interaction between the system of civil law and common law in arbitration.

Investment arbitration could not be absent in this Forseti publication. On this occasion, María del Camen Tovar analyses the so-called umbrella clause included in many bilateral investment treaties and discusses the role of domestic law, the contract and the treaty when we are faced with a controversy containing this pact.

Jurisprudence plays a transcendental role in international arbitration. On this occasion, Forseti presents to the legal community two judicial rulings and one ruling of the Constitutional Court.

In this issue of Forseti you will find the judicial decision of the Superior Court that ends the discussion of the well-known TSG case. In an arbitral award rendered under the repealed Law 25886 (which did not contain a provision such as that contained in the current article 14 of our arbitration law), non-signatories of the arbitral award were incorporated by application of the theory of the lifting of the corporate veil. This case was annulled by the Judicial Branch, and after several adventures, the Superior Court ruled on the matter. The outcome of this party can be found in this issue.

Likewise, we make available a controversial sentence of the Superior Court that declared null and void an arbitration award because a subject did not sign the arbitration agreement. In another ruling that you can also find in Forseti, the Constitutional Court upheld an arbitral award alleging improper representation of one of the parties.

The entire Editorial Committee hopes that this magazine will continue to be to its liking. And just as arbitration has become the natural method of settling international commercial disputes, so too has it become the natural method of settling international commercial disputes.

Translated with www.DeepL.com/Translator