The arbitrability of contractual disputes with the State in Argentina

Abstract

This paper examines the arbitrability of contractual disputes with the State in Argentina, whose evolution contrasts with the experience of other Latin American countries, such as Brazil and Peru, which have consolidated arbitration as a reliable mechanism for resolving disputes arising from administrative contracts, particularly in concessions, infrastructure, and public-private partnerships. The article identifies two structural factors explaining this lag: the absence of a systematic regulatory framework governing arbitration with the State —given that both the International Commercial Arbitration Law 27,449 and the Civil and Commercial Code expressly exclude disputes in which the State is a party— and the restrictive interpretation that certain administrative courts have adopted regarding exceptions to arbitrability, grounded in broad notions of public order, sovereignty, and administrative powers. Drawing on the case law of the Supreme Court and lower courts, the paper assesses the criteria used to admit or exclude arbitration in matters involving sovereignty, federal norms, unconstitutionality claims, and the validity of administrative acts. It concludes that the resulting normative and jurisprudential uncertainty discourages domestic contractual arbitration and increases the country’s exposure to investment treaty arbitration, and therefore proposes strengthening that framework by drawing on comparative experiences, such as the Brazilian model.