GUATEMALA
I. INTRODUCTION: ARBITRATION IN GUATEMALA – HISTORY AND INFRASTRUCTURE
A. History and Current Legislation on Arbitration
1. Historical evolution of law relating to arbitration
2. Current law
3. Law reform projects
4. Confidentiality and publication of awards
a) Privacy of proceedings
b) Publication of awards
B. Arbitration Infrastructure and Practice in Guatemala
1. Major arbitration institutions
2. Number of cases and other statistics
3. Development of arbitration compared with litigation
II. CURRENT LAW AND PRACTICE
A. Arbitration Agreement
1. Types and validity of agreement
a) Clauses and submission agreements
b) Minimum essential content
c) Form requirements
d) Incorporation by reference
e) Interpretation
2. Enforcing arbitration agreements
a) Declaratory actions in court
b) Applications to compel or stay arbitration
c) Anti-suit and other injunctions
3. Effects on third parties
a) Extension of the agreements over third parties
b) Other effects
4. Termination and breach
B. Doctrine of Separability
1. Statutory provisions
2. Practice and case law
C. Jurisdiction
1. Which forum decides jurisdiction
2. Prima Facie determination
3. Competence-competence
4. Interaction of national courts and tribunals
D. Arbitrability
1. Notion and functions of arbitrability
2. Applicable law
3. Subjective arbitrability
a) Natural persons
b) Legal persons
c) States and state entities
4. Objective arbitrability
a) Examples of restrictions to objective arbitrability at law
b) Cases restricting objective arbitrability
E. Arbitral Tribunal
1. Status and qualifications of arbitrators
a) Number of arbitrators
b) Legal status
c) Qualifications and accreditation requirements
d) Arbitrators’ rights and duties
e) Relevant codes of ethics
2. Appointment of arbitrators
a) Methods of appointment
b) Appointing authorities
c) Payment agreements
d) Resignation and its consequences
3. Challenge and removal
a) Grounds for challenge
b) Procedure for challenge
c) Removal procedure
d) Replacement of arbitrators
4. Arbitrator liability and immunity
F. Conducting the Arbitration
1. Law governing procedure
a) Determination of law and rules governing procedure
b) Notion and role of seat of arbitration
c) Methods for selection of seat absent party choice
d) Mandatory rules of procedure
2. Conduct of arbitration
a) Basic procedural principles
b) Party autonomy and arbitrators’ power to determine procedure
c) Style and characteristics pf the oral hearing
d) Documents only arbitrations
e) Submissions and notifications
f) Deadlines and methods for their extension
g) Legal representation
h) Default proceedings
3. Taking of evidence
a) Admissibility
b) Burden of proof
c) Standards of proof
d) Evidentiary means- in general
e) Documentary evidence and privilege
f) Production of documents
g) Witnesses
h) Tribunal-appointed experts
i) Party-appointed experts
4. Interim measures of protections
a) Jurisdiction for granting interim measures
b) Availability of preliminary or ex parte orders
c) Types of measures
d) Form of measures
e) Security for costs
f) Enforcement mechanisms
5. Interaction between national courts and arbitration tribunals
a) Court assistance before the arbitration begins
b) Court assistance during the arbitration
c) Court assistance after the arbitration
d) Case law examples of best and worst practices
6. Multiparty, multi-action and multi-contract arbitration
a) Consolidation of arbitrations
b) Joinder of third parties
c) Parallel and concurrent proceedings
7. Law and rules of law applicable to the merits
a) Determining the applicable law and rules
b) Party autonomy
c) Determination of arbitrators
d) Non-national substantive rules, general principles of law and transnational rules
e) Mandatory rules
8. Costs
a) Arbitration costs
b) Legal costs
c) Security for costs
G. Arbitration Award
1. Types of awards
a) Partial awards
b) Final awards
c) Interim awards
d) Consent awards
e) Default awards
f) Awards and other decisions of the tribunal
2. Form requirements
a) Essential content
b) Reasons
c) Time limits for making award
d) Notification to parties and registration
3. Remedies
a) Damages
b) Specific-performance
c) Other typical remedies
d) Interest
4. Decision making
a) Deliberations
b) Majority or consensus?
c) Dissenting and concurring opinions
d) Signature
5. Settlement
a) Settlement recorded in an award
b) Settlement without an award
c) Use of settlement techniques by arbitrators
6. Effects of award
a) Effects between parties
b) Effects against third parties
c) Res judicata
7. Correction, supplementation, and amendment
a) Correcting the award
b) Additional award
c) Interpretation of award
H. Challenge and Other Actions against the Award
1. Setting aside
a) Grounds
b) Time limits
c) Procedure
d) Limiting judicial review of awards by contract
e) Effects of successful challenge
2. Appeal on the merits
a) Is it allowed?
b) Grounds
c) Excluding the right to appeal by agreement
III. RECOGNITION AND ENFORCEMENT OF AWARDS
A. Domestic Awards
1. Statutory or other regimes
a) Distinction between recognition and enforcement
b) Grounds for refusing recognition and enforcement
c) Formal requirements for enforcement of awards
d) Enforcement procedure
e) Execution
2. Practice
a) Grounds for refusing recognition and enforcement
b) Execution
B. Foreign Awards
1. Various regulatory regimes
a) Domestic rules
b) New York Convention
c) Other international conventions
d) Court practice applying regimes other than the New York Convention
2. Distinction between recognition and enforcement
3. Application of New York Convention by local courts
a) Grounds for refusing recognition and enforcement
b) Enforcement procedure
c) Public policy as a ground to refuse enforcement
d) Examples from practice
IV. APPENDICES AND RELEVANT INSTRUMENTS
A. National Legislation (See CD-ROM)
B. Major Arbitration Institutions
C. Statistics
