General Theory process
"civil procedural law: RIP. At least this applies to commercial contract disputes. And it's good to be so. Next of 'rest in peace', on his tombstone may appear proud of their murderous name: it is called arbitrage. And the weapon: common sense. " These were the first words of a short article entitled "Strengths arbitration in the country ", authored by Alfred Bullard, published some time ago in El Peruano . The opinion can be read here .
I must admit that these first words gave me some concern. So far you've come to the arbitration has become the "killer" of the civil procedural law (even in contractual matters and commercial)? The author justifies his claim by warning that business disputes are being ventilated in larger quantities arbitral proceedings before the court, despite government subsidies to maintain its operation. This, "says Bullard," means that "the arbitration is defeating civil process on trade issues. "But his real position is not only in an apparent triumphalism or revenge of the arbitration that, finally, would have shed the yoke of the jurisdiction, as it makes no sense" divert resources "to solve those issues that the parties can resolve their own expense and without subsidies. Then he sympathizes with the judicial function, by asking:" Why overburden an already crowded PJ? ".
these ideas are I produced an overwhelming desire to write something about it. I realize that I do not intend to start here an ideological debate over the role of government, it would be a filibuster. On the contrary, I just want to address two issues arising from the ideas drawn from the reading.
i) The "antagonism" between procedural law (civil) and arbitration: Unless Alfredo Bullard is careless in the use of terminology when writing about law, there is no du da occasional He has placed the civil procedural law and arbitration for opposing poles, to the point that figuratively devoted to it as "murder" of that. However, this statement could happen as obvious, represents a serious theoretical error.
me explain. Before we talk about civil procedure, criminal or employment is deb and bear in mind the notion of general theory process (or procedural law, period) as an autonomous discipline of legal science, which is composed of all those principles, rules and theories that seek to describe this phenomenon called process, which refers to one of the planes of the legal system: the level of procedural law. It speaks of a general theory eral because, in fact, there are common elements among the various branches, in turn, are differentiated by their adaptation to the right material that protect (this is another level of law). Hence it is not difficult, for example, determine why the criminal process is so essential to the principle of presumption of innocence, because this process seeks to protect legal rights such as freedom of the accused. But the general theory of the process does not provide agency Unicam principles or rules for the judicial process.
By attempting to cover the procedural phenomenon in its entirety, the general theory of the process takes full effect in any event that could be described as a process. Thus, the processes that are pending before the court have particular features (Including the possibility of concluding final decisions and unchangeable), but not the only ones that exist at the state level. On the contrary, there are legislative processes , such as those used for the making of laws or political impeachment, and authentic administrative processes, administrative procedures misnamed only to distinguish them from the proceedings before the court. And what is the reason for the technical name? Very simple: a dialectical process is a set of ordered and successive acts, tending to an end. What is the purpose? It depends on what is the subject of protection of each process. And if you think the process is limited to the state, because it incurs a new error: there are also non-state processes, such as those present in societies and associations and also to a third party devoid of jurisdiction, legitimized by the legal system whom the parties submit their dispute to resolve. I refer to arbitration.
This is not nothing strange, it seems to be for Alfredo Bullard, based on that there could not have made a mistake in the use of technical terms. In fact, if anything can be inferred from the term arbitration is that arbitration as an institution is carried out through a process. But here is where the staunch supporters of arbitration have wanted to innovate and, of course, have not succeeded. The arbitration process which takes place anywhere in the world is fully informed by the categories and assumptions of the theory of the process. This can not be something of a surprise, if the Legislative Decree No. 1071-inspired by the Law of UNCITRAL and Alfredo Bullard leads a eulogy-establishes normative categories procedural and enforcement, counter-claim, the injunction, rebellion , etc., not counting the basic institutions upon which any process is sustained, as the legitimacy to act, inappropriate, revocation proceedings, and what followed. Indeed, the whole amount of the arbitration rules do not escape this conclusion. Thus, the categories that the arbitration process borrows Peruvian procedural law can be found and well explained in a book of this last area *.
worth, then ask Alfredo Bullard did He mean when put to litigation and arbitration in both ends, as if they were technically and conceptually distinct. By contrast, the two disciplines are so close that he does not know the process theory can not tell the arbitration process. Then again, if it is accepted that Alfredo Bullard used the terms with absolute conviction, resoundingly wrong. Moreover, a statement such as "civil procedural law: RIP" is completely unaware of the progress of science of the process in recent years in terms of access to justice and effectiveness of the process. "On what basis to assert that the procedural law, legal discipline is dead? This is simply incomprehensible.
However, Alfredo Bullard maybe not so blatant falsehoods on. Maybe he knows everything that has been said so far. In that case, there would be no choice but to "interpret the obtained" and admit that there was a "little" slip terminology on his part, he did not want to refer to civil procedure, but jurisdiction. And how different would it be, to the point that this review would have been much shorter because it would save all the ideas. Moreover, only by making this replacement would be fully felt the opinion of the writer, always from the perspective of a technical rigor is never over. In fact, here it is clear that Bullard speaks of a preponderance of the arbitration before the court when it comes to business commercial disputes. First talk of a "murder", then talks about a "defeat." This idea motivates the second point which I will discuss next.
II) aims to arbitration on the supremacy of jurisdiction: Alfredo Bullard does not hide his joy when he meant to imply that the arbitration would have defeated the jurisdiction, which would unequivocally state that justice is meaningless when the parties can resolve their own conflicts without state subsidies to promote that. However, errs again, singing a supposed victory when there is not even war.
If the arbitration has been recognized by the law is not to detract from the jurisdiction or, what is the same, make less jurisdiction. False. The reason was always give the parties a different mechanism to solve their problems. It is used little or a lot will depend, of course, whether or not attractive to users, and here the State, Legislative Decree No. 1071, has given a concrete answer, he wants to encourage the use of arbitration and, for power has reduced the "interference" of the jurisdiction almost to a minimum. This option is good or bad not put into question this time, I want to emphasize is that arbitration is an alternative to the jurisdiction, who wants to travel on that route, with all its advantages and disadvantages, to do so. But this solution, it is perfectly plausible to decline jurisdiction for those who can afford arbitration is a startling argument, only the product of a neo-corporatist vision of justice. The fact that recourse to arbitration over the state courts in certain areas means the gradual acceptance that comes from having this mechanism. If those who can afford it resort to arbitration because it offers a specialization will decide the conflict quickly, a formalism more flexible and mutually accepted by the parties, trust or any other advantage, then there is more than congratulating. Our legal system it has allowed those who offer this option for you. But this does not justify in any way to make up a conflagration between arbitration and jurisdiction (and not civil procedure, please) and, above, is declared the triumph of the former. Both coexist and are part of heterocomposición system in our country, Mr. Bullard.
On the other hand, the writer does not explain how the state can continue subsidizing the state courts if there are individuals who can afford the costs of arbitration, but after this protest is a perennial blind trust and all our ills can be solved through the intervention of the private sector. Does no corrupt referees? Do no evil awards? What happens to those who can afford arbitration but will resort to state courts? And in turn, to the claims of its well known Bullard underlying ideology and dogma, "the state is inefficient because it squanders resources and everything that comes from it is bad" / "private manage resources more efficiently and is good for them control everything. " This leads, inevitably, to think of any privatization of justice, but she, as an essential service of the State, never go to private hands, it should not.
The issue is not going to avoid talking subsidies or competition, but do fairer justice . This means better training of legal professionals (already took a first step), to promote higher quality standards, creating in judges a greater commitment to their society, and not under icy efficient argument, the State abdicates the administration of justice and the private rented a will equal or greater injustice that we experience now. The importance of the judicial function is far beyond what seems to Alfredo Bullard conceived. Not all great men who poured years of his life making process never lost the hopes in the state courts.
* On this, I recommend a short article but full of better ideas expressed here: Juan Jose Monroy Palacios, "Arbitration, jurisdiction and process." In: Revista Peruana Procedural Law, X, Lima: Communitas, 2008, pp. 141-151.
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