This case is unusual: our honorable TC believes that when a tribunal decides on a matter not submitted to arbitration, the court assumes jurisdiction as the end is ... Superior Room that settled the suit for annulment of the award! Here I show the statement (which fortunately has a single vote of the judge successful Vergara), a brief comment on it and some consequences that occurred.
I. Commenting on the (disastrous) decision
The first point to analyze is to determine the scope of the rule contained in Article 78 paragraph 6 of the Arbitration Act repealed. Thus, a satisfactory explanation of this point are peculiarly in the excerpt from the ruling of the Supreme defendant, transcribed by the same majority vote of the Constitutional Court (foundation fourth): "(...) when the Arbitration Act states that a restored the competence of the judiciary (Article 78 paragraph 6), refers to the jurisdiction of the matter in litigation is restored so that individuals submit their dispute to the courts, [and] not to continue with the arbitration award which has been declared invalid invalid. "
This is clear. The restoration of the competence of the judiciary simply means that the parties need not submit to arbitration the matter to be decided in the award but was not under a decision of the arbitrators (unless there is an agreement, as the standard). And the only way to appeal to the jurisdiction is through a judicial process, according to the procedure established by law. Exactly the same is provided for in Article 65, subsection 1, paragraph "d" of the new Arbitration Act (Legislative Decree No. 1071), but with a clearer version: "d. If the award or part thereof, is canceled out in the grounds provided in subsection d. of paragraph 1 of Article 63, the matter is not subject to arbitration is subject to a new arbitration, if provided in the arbitration agreement. Otherwise, the matter may be sued in court, unless otherwise agreed by the parties. " No doubt, therefore, that if it is a claim that was submitted to arbitration, the parties have every right to resort to the judiciary.
However, as usual, the TC got it all wrong. In the eleventh foundation ventured to "interpret" the law in question and this was what he said: "the competent body to hear the claim defendant in the arbitration whose award was declared void is the judiciary, through the Chamber annulling the award. " What? Does the room that meets the award, which is the organ which is expressly forbidden to rule on the merits of the arbitration tribunal must impersonate? Oddly enough, Mesia and ordered that board company to resolve the merits of the claim defendant should not be known by the Arbitral Tribunal. So, he ordered that a court violates the law. This demonstrated the disastrous criteria for deciding who are these judges. So tremendous tremendous court judge would have done better.
And to disguise their legal aberration, go novelty, the TC based its decision on the right to a reasonable duration of process (8 years had elapsed since the applicant began the process of cancellation), to an effective remedy, motivation and effectiveness of judgments. So what the TC was worried that the matter on which the Arbitral Tribunal has decided to be dealt with in a judicial proceeding, so opted for the "solution" to order the Superior Room which settled the suit for annulment of the award, to decide on this matter, ie, to rule on the merits.
However, it appears that TC ignores that demand (and non-use, please) to override the court should be limited only to rescind the arbitration decision and forward to issue a new one. This was a clear difference in the Arbitration Act repealed, as this includes the use appeal. Thus, through this action, the Board issued a ruling on the merits of the dispute, while the action for annulment ( rectius: demand), merely to cancel. Conclusion: TC completely distorted the institution of the annulment of an arbitral award.
But there is something much more serious. The TC sprayed all the rules of procedure before the court (competition, demand, etc..) And even the due process of the passive part of the arbitration process, as the Upper Chamber is not the court should resolve the matter which the Tribunal Arbitration ruled wrong. How is it possible that the Upper Chamber which annulled the award may be substituted to the Arbitral Tribunal and issue a decision? The restoration of jurisdiction refers to a lawsuit can be filed with the court, but following the proceedings. Is there any need to say this? It seems that in order to avoid the follow deciding TC nonsense, the law should cover up the obvious.
The TC maintains its decision on the supposed involvement of fundamental rights, but ignores its mandate simply sprayed due process by violating the minimum guarantees of the right of defense of the defendant, as well as double jeopardy, because the Board Superior had set aside the award, so that the Arbitral Tribunal had to rule again. This being so, how is it possible to re-issue a decision? And not to mention the way the TC understands the theory of nullity procedures on recursive: the figure prevents an "aside" and at the same time, "replace" and resolve the credit.
The invalidity challenge always requires recursive forwarding, with few exceptions, but this case is not one of them. On the other hand, the TC said that there was a poor motivation of the Upper Chamber, but this is pure invention. If this court has already decided the controversy, noting that its decision became res judicata, how you should react if the winner of the reversal process again asked to solve? The mere act of invoking Article 78 paragraph 6 is enough to motivate why you can not access requested by the appellant (who plays bad that rule), although it is a "paraphrase." It is clear that the plaintiff has no reason.
On the other hand, it is false that says the TC when he said that the decision of the Supreme Court has not defined the scope of the phrase "restoration of the competence of Judicial Power "just because it has. This makes the need for motivation has been fully satisfied, except for those judges who have committed countless constitutional violations against the law.
And the story is for invoking the right to effective judicial decisions into question, as it has nothing to do with this case. By chance, was there anything that the Board has to "run"?
Finally, much more sensible is the singular vote Gotelli Judge Vergara (which is understandable because this was an ordinary judge.) That court says that: "I believe that the analysis making the majority decision is erroneous in that (...) when it is understood that the rejection of the request, it is precisely because the Fourth Civil Court of Lima believes that should not arrogate to the cause but the article states that the jurisdiction of the Judiciary which is restored is not interpreted in any way implying that it therefore has to resolve its claim (...) This is why in this case did not find grounds to consider the request for defense, much less when one realizes that that strictly speaking the appellant is seeking the Fourth Civil Court of Lima avoque knowledge of his case before the arbitral tribunal and the ruling as court of first instance, something that the law can not say for obvious reasons. " And then he dismisses the argument used by the majority vote on the reasonable duration of the process is finding that the appellant, with its fanciful interpretation of the law, who underwent the process of protection. In conclusion, this single vote makes it clear that the TC directed the Civil Court to violate the law. Neither more nor less.
II. The Lima Chamber of Commerce reacts and responds TC
against this disastrous decision, the Lima Chamber of Commerce (CCL) made public their disagreements. Thus, a statement appeared on Wednesday in Trade and Management . Here the publication in the latter half of the press:
The FTC says it clearly: TC expressly contravenes a rule of the Arbitration Act, deflects the jurisdiction predetermined by law, violates the right to due process, beyond their duties, threatening legal certainty and the institutionalization of arbitration in the country, giving negative signals to economic agents . Ie that the negative consequences This failure highlighted by the FTC are most correct, though, the truth, the TC used to do all this.
And against this statement as clear-cut, the TC responds through a press release posted on its corporate site
. There are reaffirmed in its discretion, noting that judges of the judiciary had "abdicated" in its interpretative function for not giving the meaning of the rule contained in Article 78 paragraph 6 of the Arbitration Act repealed, which is totally false as we have seen. And this is how the TC gives an "interpretation" that considers "constitutional" (which links to all legal, of course). Finally, if I may use a common expression: What does the donkey alfajores? The TC has again pontificate on a subject that is not its task and, moreover, do not know, because your trip is abominable.
But the last paragraph reveals something unexpected: it maintains that it has a support of a lawyer known in the trade.
III. The "letter" of Dr. Marcial Rubio Correa
Curious, very curious. The TC uses Dr. Marcial Rubio Correa, to give more weight to his infamous decision. Why curious? Because this respectable lawyer is rector of the PUCP, who not long ago was the victim of a terrible injustice, as usual, by the TC, which has prompted a few weeks ago the university community of the house of studies, led by Rubio, of course, raised a petition with the Inter- Human Rights, with the intention to void the ruling of the TC. This being so, it is amazing at least aproye in the opinion of one of the biggest critics of this body today.
The "letter" (which is not so, but probably a part report) can be read here
.
Beyond the TC-PUCP-Marcial Rubio, is need to save some points in this report that, indeed, served as a basis for the statement said. Logically therefore, the opinion of Dr. Rubio is quite unfortunate. The main points are:
1. The text says that "the competence of the judiciary will be restored" should be interpreted, and for that we must resort to various methods of interpretation. In fact, "the law does not say that overrides any arbitration proceedings or that it should initiate a new process."
2. "The arbitration process to the state prior to the issuance of the award retains full validity in not being subjected to cancellation declared, "for which, relying on the principle of expeditiousness, states that" no procedural steps must be repeated the arbitration process which is perfectly valid. "
developed There is another point but the argument is so elementary that it is trivial reference here (see question 2 in the "letter").
arguments already raised about, for it may be short in order to disagree on those points:
1. It clear that the law does not expressly state that should start a new process (judicial or arbitral), because it uses the figure of the re-establishment of competition Judiciary. The conclusion that Dr. Rubio drawn from this phrase so puzzling to him and the TC is not correct because hermeneutics made useless activity: the answer was there, to the surface.
2. If an arbitration is pending a claim that was submitted to arbitration then the procedure itself is flawed, but the healthy parts are preserved (ie, the claims themselves were raised in the arbitration agreement). Another course would be if the arbitrator or tribunal dealt with the proceedings but in the end, fail on a matter not submitted to arbitration. Here only the award is flawed and, contrary to the view Dr. Rubio, the principle of elasticity has nothing to do with this issue, but the rule of conservation of process.
But whether either case, the restoration means that, unless otherwise agreed (which is obviously an exception rule), the parties are empowered to initiate legal proceedings regarding this matter poorly resolved.
But there is something much more serious. The TC sprayed all the rules of procedure before the court (competition, demand, etc..) And even the due process of the passive part of the arbitration process, as the Upper Chamber is not the court should resolve the matter which the Tribunal Arbitration ruled wrong. How is it possible that the Upper Chamber which annulled the award may be substituted to the Arbitral Tribunal and issue a decision? The restoration of jurisdiction refers to a lawsuit can be filed with the court, but following the proceedings. Is there any need to say this? It seems that in order to avoid the follow deciding TC nonsense, the law should cover up the obvious. 
