Commercial Arbitration

Venezuela

José Gregorio Torrealba and Fernando Peláez-Pier

Hoet Peláez Castillo & Duque

    Infrastructure

  1. 1.The New York Convention
    Is your state a party to the New York Convention? Are there any noteworthy declarations or reservations?

    Yes, Venezuela is a member of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, which was ratified by the Congress on 8 February 1995, and entered into force on 9 May 1995. In accordance with Article 1, and based on reciprocity, Venezuela declared that the Convention would be applicable only for the recognition and enforcement of arbitral awards rendered in the territory of another contracting state. Venezuela also declared that the Convention would be applicable only to differences arising out of legal relationships, whether contractual or not, of a commercial nature under Venezuelan law.

  2. 2.Other treaties
    Is your state a party to any other bilateral or multilateral treaties regarding the recognition and enforcement of arbitral awards?

    Venezuela is also a contracting state to the Inter-American Convention on International Commercial Arbitration (Panama Convention), as of 16 May 1985, the Inter-American Convention on the Extraterritorial Validity of Foreign Judgments and Arbitral Awards of 15 January 1985 (Montevideo Convention).

  3. 3.National law
    Is there an arbitration act or equivalent and, if so, is it based on the UNCITRAL Model Law? Does it apply to all arbitral proceedings with their seat in your jurisdiction?

    In Venezuela, arbitration has been recognised by the Constitution as a valid mechanism for dispute settlement. Additionally, Venezuela has two main regulations on arbitration, one of them is provided for the Civil Procedural Code 1986 (CPC), and the Commercial Arbitration Act 1998 (CAA). The arbitration proceedings provided for in the CPC are characterised by a high level of intervention of local courts on the arbitral proceedings, while the CAA is based on the UNCITRAL Model Law, although there are some important differences:

    • No distinction between national and international arbitration.

    • The CAA does not include the possibility for the parties to apply for interim measures of protection before an ordinary tribunal; this situation has been favourably resolved by the Constitutional Chamber of the Supreme Tribunal of Justice.

    • Challenges to the arbitrators – in ad-hoc arbitrations, and by default in institutional arbitrations- can only be based on the grounds provided for in the CPC, and the proceedings for the challenge are also different.

    • The CAA does not make a distinction between interim measures of protection and preliminary orders, and there is no specific proceeding for enforcing interim measures ordered by the arbitral tribunal.

    • The CAA establishes that the time frame for the parties to challenge the award is of five working days.

    It is possible to find other references to arbitration in other pieces of legislation. According to the set of rules that regulate the oil and gas industries, arbitration is allowed in Article 34 of the Hydrocarbons Organic Act (2006), and Article 24 of the Gaseous Hydrocarbons Organic Act (1999), both of them related to the joint venture agreements and the possible disputes between the parties. Additionally, the Act for the Development of Petrochemical Activities (2009) also makes reference to arbitration as a dispute settlement mechanism for the joint venture agreements incorporated for the exploitation of petrochemical activities.

  4. 4.Arbitration bodies in your jurisdiction
    What arbitration bodies relevant to international arbitration are based within your jurisdiction? Do such bodies also act as appointing authorities?

    There are chapters of the International Court of Arbitration of the ICC and the Inter-American Commission for Commercial Arbitration. The Centre of Arbitration of the Caracas’ Chamber (CACC) acts as a representative for the mentioned institutions and is allowed to act as appointing authority.

  5. 5.Foreign institutions
    Can foreign arbitral providers operate in your jurisdiction?

    According to article 11 of the Venezuelan CAA, international associations, the organizations related to the economic and industrial activity, those which are related to the promotion of the alternative dispute resolution will be able to organise their own arbitration centres in Venezuela. However, the regime is open for international arbitration institutions to administer arbitral proceedings in Venezuela without any need to obtain licenses or permits.

  6. 6.Courts
    Is there a specialist arbitration court? Is the judiciary in your jurisdiction generally familiar with the law and practice of international arbitration?

    There is no specialist arbitration court in Venezuela. For commercial arbitration, the decisions given by the Constitutional Chamber, have given an strong support to arbitration and to Venezuela as a seat for arbitral proceedings, since the judiciary has adopted a deferent position, allowing the arbitrations to flow without undue interference, but with the assistance of the national judges.

    7. Agreement to arbitrate

  7. 7.Formalities
    What, if any, requirements must be met if an arbitration agreement is to be valid and enforceable under the law of your jurisdiction? Can an arbitration agreement cover future disputes?

    The CAA defines an arbitration agreement as a reciprocal statement of will, whereby the parties submit to arbitration all or any of the controversies that have arisen or that may arise between them with respect to a legal relationship, whether contractual or not.

    The arbitration agreement can be contained in a clause that is part of a larger document and can also arise out of a separate arbitration agreement. Nonetheless, the arbitration agreement must be evidenced in writing in any document or set of documents that demonstrate that express consent of the parties to resort to arbitration. The reference made in a contract to a document that contains an arbitration clause will be considered as an arbitration agreement if the agreement was made in writing, and the reference entails that the clause is part of the contract.

    When one of parties is a State-owned company or a subsidiary, Article 4 of the CAA requires for the approval of the arbitration agreement by the corporate government body and the authorization in writing by the Ministry to which the State-owned company is attached to. In these cases, the arbitration agreements must specify the kind of arbitration and the number of arbitrators, which cannot be fewer than 3.

    Additionally, the Attorney General’s Office Act (2008) (AGOA) establishes that any public officer that enters into an arbitration agreement directly related with the rights, assets, and interests of the Republic, must request a previous opinion from the Attorney’s General Office. Furthermore, any contract to be executed by the Republic establishing arbitration agreements must be submitted to the Attorney’s General Office in order to obtain a previous opinion on the arbitration agreement. To this end, Article 13 of the AGOA provides that the contract must be sent to the Attorney’s General Office jointly with the corresponding file and the opinion of the in-house counsel of the State entity.

    The lack of a formal requirement in a private contract could be cured if the party who could raise an objection does not object, and expressly declares having agreed to the arbitration clause at the relevant time. By the same token, if both parties agree to resort to arbitration post-dispute, they may also do so. In the case of arbitration agreements with a State-owned company or its subsidiary, the lack of fulfilment of the formalities established in Article 4 of the CAA would render the arbitration agreement null and void. The lack of compliance with the requirements established in the AGOA will give rise to personal liability of the public officer, but would not affect the validity of the arbitration agreement.

    Arbitration agreements covering future disputes are fully enforceable in Venezuela.

  8. 8.Arbitrability
    Are any types of dispute non-arbitrable? If so, which?

    The kinds of disputes that are not arbitrable under Venezuelan Arbitration Law are pointed out in Article 3 of the CAA, as follows:

    • are contrary to public policy rules or are over criminal matters – with the exception of quantum claims unless already determined in a final judgement;

    • are over matters concerning the powers or functions of the State or public law persons and entities;

    • are related to the status or legal capacity of individuals;

    • deal with issues related to assets or rights of legality disabled individuals without prior court authorizations;

    • and, have already been resolved by a final judgment, except for the enforcement proceedings related to quantum determination, in so far as they only concern the parties to the proceedings and issues that are not decided in the final judgment.

  9. 9.Third parties
    Can a third party be bound by an arbitration clause and, if so, in what circumstances? Can third parties participate in the arbitration process through joinder or a third-party notice?

    In general terms, there is no possibility for third parties that are not a party to the arbitration agreement to be bound by it. However, where there has been a legal transfer of rights, it is possible for the party that is the new holder of the transferred right to be considered as a party to the arbitration agreement, in particular, this would be the criterion applicable to an assignment, a succession, and in some cases, insolvency.

    Third parties are not allowed to participate through joinder or a third-party notice, unless the actual parties to the arbitration agreement give their consent.

  10. 10.Consolidation
    Would an arbitral tribunal with its seat in your jurisdiction be able to consolidate separate arbitral proceedings under one or more contracts and, if so, in what circumstances?

    There is no provision in the CAA on this regard. However, parties could agree on the consolidation of arbitral proceedings.

  11. 11.Groups of companies
    Is the “group of companies doctrine” (or any other method of piercing the corporate veil) recognised in your jurisdiction?

    The “group of companies” doctrine is not applicable in Venezuela.

    Courts and arbitral tribunals will not extend an arbitration agreement to a non-signatory parent or subsidiary company of a signatory company on the basis of a participation of the parent or subsidiary in the conclusion, performance or termination of the contract in dispute. The position would be different if there is an express acceptance of the parent or subsidiary company of the arbitration clause, which must be expressed in writing and unequivocally to demonstrate the intention to submit the dispute to arbitration.

  12. 12.Separability
    Are arbitration clauses considered separable from the main contract?

    Yes, according to article 7 of the CAA, the arbitral tribunal is empowered to decide any challenge to the entire commercial agreement and establishes the separability of the arbitration agreement.

  13. 13.Competence-competence
    Is the principle of competence-competence recognised in your jurisdiction? Can a party to an arbitration ask the courts to determine an issue relating to the tribunal’s jurisdiction and competence?

    Yes. The principle of ‘Kompentenz-Kompetenz’ is established in Article 7 of the CAA and has been duly recognised by the Constitutional Chamber of the Supreme Tribunal of Justice in judicial opinions, the latest being the one rendered in the case of Astivenca, dated 3 November 2010.

    Since the Astivenca case, parties are not allowed to ask the courts to determine an issue relating to the tribunal’s jurisdiction and competence. When facing arbitration agreements, local courts must be limited to make a prima facie examination of the validity, efficacy and applicability of the arbitration agreement, and if they do not find a gross violation of those, the dispute must be submitted to arbitration, without any possibilities of analyzing the validity of the consent given by the parties.

  14. 14.Drafting
    Are there particular issues to note when drafting an arbitration clause where your jurisdiction will be the seat of arbitration or the place where enforcement of an award will be sought?

    If one of the parties to the agreement is a State or a State entity, be sure to comply with the formal special requirements, if any, for them in order to enter into arbitral agreements. Lack of fulfilment of those requirements could be deemed as lack of capacity to enter into the agreement and the award could be set-aside or rejected for enforcement.

  15. 15.Institutional arbitration
    Is institutional international arbitration more or less common than ad hoc international arbitration? Are the UNCITRAL Rules commonly used in ad hoc international arbitrations in your jurisdiction?

    Institutional arbitration is largely more common than ad-hoc international arbitration. When ad-hoc arbitration has been chosen by the parties to an international arbitration, UNCITRAL Rules are used in a large extend, although the rules established in the CAA are also used.

  16. 16.Multi-party agreements
    What, if any, are the particular points to note when drafting a multi-party arbitration agreement with your jurisdiction in mind? In relation to, for example, the appointment of arbitrators.

    There are no provisions in the CAA regarding multi-party arbitration clauses. The relevant issues would be that the consent of the parties is explicitly included in the clause; and that the participation of all the parties in the appointment of the arbitrators and the proceedings is guaranteed.

    17. Commencing the arbitration

  17. 17.Request for arbitration
    How are arbitral proceedings commenced in your jurisdiction? Are there any key provisions under the arbitration laws of your jurisdiction relating to limitation periods of which the parties should be aware?

    There are no provisions in the CAA regarding the commencement of arbitrations. Usually, ad-hoc arbitrations under CAA are commenced with a notification to the other party. The limitations periods to start legal actions based on rights of credits are up to 10 years, and may vary depending on the nature of the credit.

    18. Choice of Law

  18. 18.Choice of law
    How is the substantive law of the dispute determined? Where the substantive law is unclear, how will a tribunal determine what it should be?

    Parties are allowed to agree on the substantive legislation applicable to the dispute in accordance with article 29 of the Private International Law Act (PILA). Where substantive law is unclear, the arbitral tribunal must use the legislation with the closest connection to the transaction. According to articles 30 and 31of the PILA, the tribunal must also have into account the, rules, practices and general principles of International Commercial Law and also the international commercial practices.

    19. Appointing the tribunal

  19. 19.Choice of arbitrators
    Does the law of your jurisdiction place any limitations in respect of a party’s choice of arbitrator?

    There are no restrictions as to who may act as an arbitrator. However, because of the laws regulating the judiciary, judges may not act as arbitrators since they are not allowed to engage in economic activities other than teaching while serving in office.

  20. 20.Foreign arbitrators
    Can non-nationals act as arbitrators where the seat is in your jurisdiction or hearings are held there? Is this subject to any immigration or other requirements?

    As a general rule, the answer would be negative. However, the question raises several interesting issues about the Venezuelan legislation. According to the provision established in Article 11 of the Lawyers’ Act (1967), advocacy is understood to be a function attributed on the basis of a special legislation to someone who has obtained a university degree in law, or those occupations that require legal knowledge. As provided in Article 3 and 7 of the Lawyers’ Act in order to act on behalf of someone else in a legal proceeding before a Court of Law, give legal advice, whether orally or in writing, and making any activity inherent to advocacy, it is required to have a Venezuelan law degree, and be registered with the local Bar Association and the Venezuelan Institute for the Welfare of Lawyers.

    In our view, arbitration is an activity involving advocacy and it will be, as a general rule, reserved to Venezuelan qualified lawyers. However, Article 14 of the Regulations of the Lawyers’ Act stipulates that foreign lawyers could be authorised by the local Bar Association to practice in Venezuela if they have been hired by a private person or company for the performance of functions involving legal knowledge, as in the case for an international arbitration. As of this date and to the best of our knowledge, in relation with arbitral proceedings, there is no case where the Bar Association has granted or denied an authorization to perform as counsel or as arbitrator in an arbitration located in Venezuela.

  21. 21.Default appointment of arbitrators
    How are arbitrators appointed where no nomination is made by a party or parties or the selection mechanism fails for any reason? Do the courts have any role to play?

    Article 17 of the CAA provides that in case of failure by one of the parties to appoint the corresponding arbitrator, or failure by the party-appointed arbitrators in the appointment of the third arbitrator, any of the parties is entitled to request the appointment from the Court of First Instance.

  22. 22.Immunity
    Are arbitrators afforded immunity from suit under the law of your jurisdiction and, if so, in what terms?

    Arbitrators are not immune from suit under the Venezuelan legislation.

  23. 23.Securing payment of fees
    Can arbitrators secure payment of their fees in your jurisdiction? Are there fundholding services provided by relevant institutions?

    In ad-hoc arbitrations, Article 20 of the CAA establishes that the fees of the arbitrators must be given to the President of the Arbitral Tribunal, who is obliged to open a special bank account for that purpose. The parties must pay the fees of the arbitrators within the next 10 days from the date the arbitrators set the corresponding amount. If payment is not made by the parties, the arbitrators are entitled to conclude the arbitral proceedings, and the parties are free to submit the dispute to the local courts.

    24. Challenges to arbitrators

  24. 24.Grounds of challenge
    On what grounds may a party challenge an arbitrator? How are challenges dealt with in the courts or (as applicable) the main arbitration institutions in your jurisdiction? Will the IBA Guidelines on Conflicts of Interest in International Arbitration generally be taken into account?

    In ad-hoc arbitral proceedings, arbitrators can be challenged and can disqualify themselves pursuant to the general grounds provided for judges in the CPC. These grounds include family relationships, close friendships or evident personal confrontation, bias, and anticipation of opinion about the issues in dispute.

    In the ad-hoc proceedings provided for in the CAA, arbitrators appointed by agreement of the parties may not be subsequently challenged for reasons that were known by the challenging party at the time of the designation. Arbitrators appointed by judges or third parties may be challenged within five days after the date of the constitution of the arbitral tribunal.

    The CAA provides that in cases of illness, death, resignation or disqualification of an arbitrator, the designation of the new arbitrator will be made following the same rules applied for the original appointment.

    As per the CACC rules, arbitrators can be challenged for lack of impartiality and on any further grounds. For their part, the rules of the Business Centre for Conciliation and Arbitration (CEDCA) only provide that arbitrators can be challenged on the basis of lack of impartiality, and party-appointed arbitrators cannot be challenged for reasons that were known by the challenging party at the time of the designation.

    Both the CACC and CEDCA rules require the challenge to be made in writing, and to be motivated and presented before the secretariat. It can be presented within five days (CEDCA arbitrations) and 10 days (CACC arbitrations) after the notification of the appointment or after the challenging party becomes aware of the facts that justify the challenge. The centre’s executive committee will decide whether or not the challenge is founded.

    25. Interim relief

  25. 25.Types of relief
    What main types of interim relief are available in respect of international arbitration and from whom (the tribunal or the courts)? Are anti-suit injunctions available where proceedings are brought elsewhere in breach of an arbitration agreement?

    In CAA ad hoc proceedings, the arbitral tribunal can order any kind of interim measures that are necessary, depending on the controversy and the nature of the claim. The same power is given to CACC and CEDCA arbitral tribunals.

    As a consequence, the above arbitral tribunals may order any kind of interim measures. These can be ordinary or special remedies, and include attachments, seizures, embargoes and freezing orders, among others. Security for costs can also be ordered by the arbitral tribunal at its discretion. The arbitral tribunal, or any of the parties (with the approval of the arbitral tribunal), may request the assistance of local courts for the enforcement of interim measures.

    Since the judgment rendered in the case of Astivenca on 3 November 2010, it is possible to request interim measures of protection from local courts before the commencement of the arbitration an until the constitution of the arbitral tribunal, which is empowered to order interim measures of protection by article 26 of the CAA. Additionally, arbitral tribunals could request the assistance of local courts if need be, although in practice this is more common at the enforcement stage. Finally, there is no exclusivity for the local courts on the ability to grant interim measures.

  26. 26.Security for costs
    Does the law of your jurisdiction allow a court or tribunal to order a party to provide security for costs?

    Yes, Article 26 of the CAA empowers the arbitral tribunal to order any kind of interim measure of protection, including security for costs.

    27. Procedure

  27. 27.Procedural rules
    Are there any mandatory rules in your jurisdiction that govern the conduct of the arbitration (e.g. general duties of the tribunal and/or the parties)?

    Yes, there are mandatory provisions of the CAA, which parties and arbitrators are obliged to comply. For instance, Article 27 of the CAA provides that in the arbitral proceedings there is no place for incidences, while Article 29 establishes that for the validity of the arbitral award, it would only be required to be signed by the majority of arbitrators as long as there is an statement explaining the reasons of the absence of one or more signatures and the dissenting opinions. Additionally, Article 31 establishes that the arbitral award shall be notified to the parties through a copy signed by the arbitrators. It is also mandatory the provision contained in Article 32 regarding the correction and completion of the arbitral award, and Article 33 that explains the grounds for the arbitral tribunal to seize.

  28. 28.Refusal to participate
    What is the applicable law (and prevailing practice) where a respondent fails to participate in an arbitration?

    If the respondent fails to participate in an arbitration, the proceeding must continue taking care of due notification of the different phases. The relevant condition is that the respondent is given the opportunity to produce arguments and evidence. If there is an action required from the rebel respondent, such as the appointment of an arbitrator, the local courts are empowered to take the appropriate actions to remedy that situation and allow the arbitral proceedings to continue without mayor interruptions.

  29. 29.Admissible evidence
    What types of evidence are usually admitted, and how is evidence usually taken? Will the IBA Rules on the Taking of Evidence in International Commercial Arbitration generally be taken into account?

    Generally speaking, arbitral tribunals are bound to establish the facts of the case in line with the evidence presented to them by the parties. All types of evidence will be allowed unless contrary to public policy rules.

    Witness evidence, experts (both party and tribunal appointed), documents, inspections by the arbitral tribunal, and party evidence (including the testimonies of party officers) are all commonplace. There is a ‘control of evidence’ principle in Venezuela, according to which a party has the right to control the evidence produced by the other. For example, a party has the right to cross-examine a witness brought by the other side.

    The IBA Rules on the Taking of Evidence in International Commercial Arbitration are widely known in Venezuela. Arbitral tribunals are, nonetheless, not obliged to apply them or seek guidance from them, and therefore are more likely to resort to them when the parties have agree on its application.

  30. 30.Court assistance
    Will the courts in your jurisdiction play any role in the obtaining of evidence?

    Article 28 of the CAA allows the arbitral tribunal to seek the assistance of the courts for the production of evidence, particularly when the seat of the arbitration is Venezuela. The assistance of the courts will consist in the compliance with the collaboration requested by the arbitral tribunal.

  31. 31.Document production
    What is the relevant law and prevailing practice relating to document production in international arbitration in your jurisdiction?

    The practice will depend on the way arbitrators are used to conduct the arbitration. Venezuelan arbitrators would usually require the exhibition of the documents requested by one of the parties. This exhibition is obligatory for the requested party.

  32. 32.Hearings
    Is it mandatory to have a final hearing on the merits?

    No, there is no legal obligation to have a final hearing. Arbitral tribunals are free to decide if the proceedings will require hearings or if they will be conducted in writing.

  33. 33.Seat or place of arbitration
    If your jurisdiction is selected as the seat of arbitration, may hearings and procedural meetings be conducted elsewhere?

    Yes. According to Article 9 of the CAA, the arbitral tribunal, unless otherwise agreed by the parties, will be able to meet elsewhere in order to deliberate, or to hear witness, experts or party statements, and to examine merchandises or documents.

    34. Award

  34. 34.Majority decisions
    Can the tribunal decide by majority?

    Yes, article 29 of the CAA establishes that in arbitral tribunals composed by several arbitrators, the award will be valid with the signature of the majority of its members.

  35. 35.Limitations to awards and relief
    Are there any particular types of remedies or relief that an arbitral tribunal may not grant?

    Arbitral tribunals may grant any kind of remedies, unless it is limited by agreement of the parties.

  36. 36.Dissenting arbitrators
    Are dissenting opinions permitted under the law of your jurisdiction? If so, are they common in practice?

    There is no particular provision with regard to dissenting opinions. Usually, dissenting opinions are attached to the arbitral award and are considered to be part of it.

  37. 37.Formalities
    What, if any, are the legal and formal requirements for a valid and enforceable award?

    The CAA and the CACC and CEDCA rules require awards to be made in writing and also to be signed by the arbitrator or arbitrators that form the arbitral tribunal. In arbitration proceedings with more than one arbitrator, the signature of the majority of the arbitrators will suffice.

    Unless the parties have otherwise agreed, awards must set out reasons and must also provide the date of issue and place of the arbitration. The award will be deemed to have been issued in the seat of arbitration.

  38. 38.Time frames
    What time limits, if any, should parties be aware of in respect of an award? In particular, do any time limits govern the interpretation and correction of an award?

    CAA establishes 6 months after de constitution of the arbitral tribunal, CACC rules establishes the same time but from the signing of the Terms of Reference, and the rules of arbitration of CEDCA provides that the arbitration proceedings should not last longer than 8 months from the filing of the application for arbitration.

    The parties will have five (5) days to file the challenge from the date the award, or its correction, clarification or complement, has been notified.

    The award may be clarified, corrected and complemented ex officio by the arbitral tribunal or by request of one of the parties, within the 15 working days following the rendering of the award.

    39. Costs and interest

  39. 39.Costs
    Are parties able to recover fees paid and costs incurred? Does the “loser pays” rule generally apply in your jurisdiction?

    The CAA and the CACC and CEDCA rules provide that, unless otherwise agreed by the parties, the arbitration costs will be fixed by the arbitral tribunal in the award. The arbitral award should state the proportion in which the costs will be covered by the parties. All arbitration-related costs are, in principle, recoverable, and these include arbitrators’ fees, administrative fees and attorneys’ fees. In court proceedings a maximum of 30 per cent of the value of the claim can be recovered as costs. In practice, this procedural rule may influence arbitrators.

  40. 40.Interest on the award
    Can interest be included on the principal claim and costs? Is there any mandatory or customary rate?

    Interest is normally awarded for principal claims, but could also be awarded for costs. The CAA and the CACC and CEDCA rules contain no special provision in this regard.

    41. Challenging awards

  41. 41.Grounds for appeal
    Are there any grounds on which an award may be appealed before the courts of your jurisdiction?

    The only remedy available against awards in the CAA is the application for judicial review, which must be filed in writing before a domestic court of appeal of the place where the award was made. According to article 44 of the CAA, an arbitral award can be declared null and void when:

    • the party against whom it is invoked proves that one of the parties was affected by an inability at the time of entering into the arbitration agreement;

    • the party against whom it is invoked was not given proper notice of the appointment of an arbitrator or the arbitration proceedings being initiated, or by any reason was not able to assert its rights;

    • the constitution of the arbitral tribunal or the arbitral proceedings did not conform to the CAA;

    • the arbitral award deals with substantive issues not contained in the arbitration agreement or exceeds the agreement itself;

    • the party against whom the arbitral award is invoked proves that the award is not binding on the parties or has been previously annulled or suspended according to the terms agreed by the parties for the arbitral proceedings; or

    • the court before which the nullity of the award is requested proves that, as a matter of law, the object of the dispute is not capable of being resolved by arbitration, or that its subject matter is contrary to public policy rules.

  42. 42.Other grounds for challenge
    Are there any other bases on which an award may be challenged, and if so what?

    No, the Constitutional Chamber of the Supreme Tribunal of Justice has been clear in the recent case of Astivenca (3 November 2010), that the only way to challenge an award is through the application for judicial review under article 44r of the CAA.

  43. 43.Modifying an award
    Is it open to the parties to exclude by agreement any right of appeal or other recourse that the law of your jurisdiction may provide?

    Yes, the parties are able to exclude the application for judicial review.

    44. Enforcement in your jurisdiction

  44. 44.Enforcement of set-aside awards
    Will an award that has been set aside by the courts in the seat of arbitration be enforced in your jurisdiction?

    No, one of the grounds established in article 49.e) of the CAA for the rejection of the request for the recognition and enforcement of an arbitral award is precisely that the award has not been set aside or vacated by the courts in the seat of the arbitration.

  45. 45.Trends
    What trends, if any, are suggested by recent enforcement decisions? What is the prevailing approach of the courts in this regard?

    In Venezuela, the courts will be limited to analyze the grounds established in article 49 of the CAA in order to reject or proceed with the recognition and enforcement of arbitral awards.

  46. 46.State immunity
    To what extent might a state or state entity successfully raise a defence of state or sovereign immunity at the enforcement stage?

    A foreign state or state entity would be able to claim immunity in Venezuela in accordance with International Public Law, where some assets are covered by sovereign immunity, such as embassies, international monetary reserves or other of the kind. Assets of a commercial nature should not be considered to be covered by sovereign immunity.

    47. Further considerations

  47. 47.Confidentiality
    To what extent are arbitral proceedings in your jurisdiction confidential?

    The CAA expressly impose to the arbitrators the duty to keep the confidentiality of the dispute, the arbitral proceedings (including the award), any materials submitted by the parties, any information disclosed during the proceedings, and generally anything related to the proceedings. This confidentiality right may nonetheless be waived by the parties.

  48. 48.Evidence and pleadings
    What is the position relating to evidence produced and pleadings filed in the arbitration? Are these confidential? Is there any way that they might be relied on in other proceedings (whether arbitral or court proceedings)?

    As mentioned above, confidentiality is an obligation of the arbitrators. The parties are free to use the evidence or pleadings in other proceedings, unless they have agreed otherwise.

  49. 49.Ethical codes
    What ethical codes and other professional standards, if any, apply to counsel and arbitrators conducting proceedings in your jurisdiction?

    Since there is no particular ethical codes applicable to arbitral proceedings, the applicable rules would be those issued by the regulatory authority in the case of liberal professions. In arbitrations at law, Arbitrators and counsel would be bound by the Lawyers’ Ethics Code since the law indicates that they must be lawyers. In arbitrations where the arbitrators must decide et aequo et bono, where they are not required to be lawyers, other codes of professional conducts may apply.

  50. 50.Procedural expectations
    Are there any particular procedural expectations or assumptions of which counsel or arbitrators participating in an international arbitration with its seat in your jurisdiction should be aware?

    In Venezuela, although the situation is improving, counsel and arbitrators often have a formalistic approach to the arbitral proceedings.

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