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Case 27: MAL 16(1)
Argentina: Cámara Nacional de Apelaciones en lo Commercial - Sala
26 September 1988; judgement not final
"Enrique C. Wellbers S.A.I.C. A. G. v. Extraktionstechnik Gesellschaft für Anlagenbau M.B.M.: S/ Ordinario"
Excerpts published in Spanish: La Ley, 1989-E-302, Buenos Aires
In accordance with an arbitration clause contained in a contract of sale FOB port of Hamburg, one of the parties to the contract brought an action before the courts of Argentina for the constitution of the arbitral tribunal. The respondent raised a plea that the arbitral tribunal did not have jurisdiction. It was argued that the courts in Hamburg, the place of performance of the contract, had international jurisdiction over the subject-matter of the contract, and, since the arbitration clause was accessory to the contract of which it forms part, the arbitration clause should follow the fate of the contract.
The court of first instance rejected the plea of lack of jurisdiction. The court of
appeals affirmed that the arbitration clause was autonomous, and therefore its validity
did not depend on the validity of the contract, on the applicable law or on the court with
international jurisdiction to resolve any dispute. The principle of the autonomy of such a
clause is internationally accepted and, as such, incorporated in MAL (Article 16(1)).
Although MAL has not been adopted in Argentina, it reflects generally accepted principles
in the matter and can be taken into account to make up for the absence of a specific
national norm.
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CASE LAW ON UNCITRAL TEXTS (CLOUT)
Abstracts of cases
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