Cross-Speech in Contract Reality and Non-Signatory Arbitration in Latin America : Article 14 of the Peruvian Arbitration Law & TSG v. Pesquera et al

As little commentary exists in English, it is the author’s hope that this note on the extension of the arbitration agreement to non-signatories in international arbitration in Latin America in light of the 2008 Peruvian “progressive” arbitration reforms will assist international practitioners and academics alike. Section II considers comparative theories of extension with a specific focus on French arbitral practice as transposition has been the means of construction for Latin America’s normative framework of implied consent. Section III presents as case studies (i) the unique Article 14 of the Peruvian Arbitration Law (PAL) No. 1071 (2008), the only arbitral statute in the world expressly providing for non-signatory extension of the arbitration agreement, and (ii) TSG Peru SAC v. Pesquera Industrial Chicama et al (2009), the first case to consider Article 14 PAL showcasing the transposition errors that may arise as transnational norms are articulated across continents to national legislatures, arbitral tribunals, and annulment courts. Section IV concludes that progressive statutory codification, overly reliant on foreign doctrine in its expansion of arbitral scope, will often be lost in translation by reviewing domestic courts. Thus, the Latin American theme of “contract reality” results in a cross-speech, not unique to the region given the very nature of transnational norms, which fails to speak to commercial parties