DOMINICAN REPUBLIC Trends and Developments Contributed by: César Joel Linares Rodríguez, LMV Advisors – Central Law Dominican Republic
seeking to safeguard the procedural certainty of the parties in the face of ordinary contractual crises. Considerations on the anationality of the arbitration clause In light of doctrinal trends asserting that the arbitra - tion clause possesses an anational nature and is not subject to any state legislation – a position emblemati - cally upheld by the French Court of Cassation – it is necessary to put forward a divergent position. The arbitration clause cannot subsist in an absolute normative vacuum. Generally, when contracting par - ties enter into a legal transaction, they determine the substantive law applicable to the commercial agree - ment; this choice of law establishes, in a unified man - ner, the framework for the validity and interpretation of all the provisions contained in the document. In those scenarios where the parties fail to expressly designate the law governing the arbitration clause or the agreement, the international legal order does not validate the absence of law but rather requires the identification of objective connecting factors. In the absence of an express agreement, the validity of consent to arbitrate must be determined accord - ing to the characteristics of the contract, such as the place where it was executed, the territory where the substantive obligations are performed or, pursuant to the 1958 New York Convention, the law of the seat designated for the arbitral tribunal. Detaching the arbitration agreement from every state rule constitutes a theoretical consideration that dis - torts the general theory of obligations, since every manifestation of will requires a positive legal frame - work that determines its validity and sanctions the existence of essential defects such as fraud. In the case of the Dominican Republic, Article 10 (5) of Law No. 489-08 provides: “When the arbitration is international, the arbitration agreement shall be valid and the dispute shall be capable of settlement by arbitration if the requirements established by the legal rule chosen by the parties to govern the arbitration agreement, by the legal rules applicable to the merits of the dispute, or by Dominican law are met,” which
reinforces or confirms that, at least under Dominican Arbitration Law, the arbitration clause or arbitration agreement has nationality. Distinction between the arbitration clause and the arbitration agreement In order to precisely define the scope of the will in private justice, it is essential to clarify a very recurrent doctrinal imprecision: equating the arbitration clause with the arbitration agreement. Although in ordinary practice they are used interchangeably, the arbitration clause and the arbitration agreement are two different matters, even though in principle they regulate or seek to regulate the same situation. The arbitration agreement is the act by which the par - ties decide to submit the resolution of a dispute to arbitration. Its distinguishing characteristic lies in the fact that it is formed after the contract giving rise to the dispute. This conceptual distinction requires us to recognise a fundamental legal reality: the arbitration agreement arises from different facts, at different times, and with a completely different will and consent and is, there - fore, independent, which would logically justify the existence and application of the principle of autonomy or separability of the arbitration clause. In this case, it is indisputable that the manifestations of consent are individual. Indeed, it is consistently recognised that an arbitration agreement, in its capacity as a contract, is affected by the same validity requirements applicable to obli - gations in general and, among them, particularly by defects in consent. As previously stated, party autonomy and, therefore, consent as its natural manifestation, have their limits in the laws and principles that protect morality and public policy. This requirement of legality and integrity has been recognised by Dominican case law, which has stated the following: “…therefore, the validity of the transaction entered into must be recognised, provided that it meets the conditions established by Art. 1108 of the Civil Code, as regards the giving of free and unvitiated consent, the capacity of the par - ties, a certain object, and a lawful cause…” (Supreme
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