Arbitraje y mediación obligatoria
Date | 20 December 2002 |
Published date | 20 December 2002 |
Law Firm | Marval O'Farrell Mairal |
La concurrencia a una audiencia de mediación obligatoria, con carácter de requerido, citada en el marco de la Ley Nº 24.573 -que impone este trámite previo a la iniciación de todo juicio- por parte de quien ha comprometido contractualmente someterse a arbitraje, no implica consentimiento de la vía judicial para dirimir el conflicto, ni renuncia a la jurisdicción arbitral. Así lo decidió el 16/08/2002 la Sala C de la Cámara Nacional en lo Comercial de la Capital Federal en los autos "Atuel Fideicomisos S.A. c/ Fondo Solidario para Empleados de Asociación Civil s/ sumario".
Esta decisión, que se inspira en lo normado por los artículos 874 y 913 del Código Civil, viene a poner fin a la discusión que se planteaba cuando, a requerimiento de una de las partes contratantes del compromiso arbitral, la otra concurría a una audiencia de mediación obligatoria. A partir de allí, la primera alegaba que, en tanto el procedimiento fijado por el artículo 1 de la Ley Nº 24.573 pone en marcha el trámite previo a la iniciación de todo pleito ante la justicia ordinaria, la jurisdicción arbitral debía considerarse renunciada.
Para evitar esta posterior argumentación, el requerido que pretendía mantener la vigencia de la competencia arbitral pedía dejar reserva de derechos o constancia en el acta de mediación sobre su intención y voluntad de no renunciar al arbitraje, o bien manifestaba...
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