Article by Victor Ml. Garita
The traditional position regarding the role of arbitration, characterized as both passive and reluctant, is changing throughout the world, bringing new and fresh legal currents to the international legal system. As in many cases, Costa Rica is again far behind the current experience, denying its society one of the potentially most useful devices in contemporary legal history. The failure to be involved in this process springs from a lack of concern about what is going on and, primarily, from a lack of sufficient information about what other societies and countries are doing in this regard.
Notwithstanding this position, two facts should be recognized. First, Costa Rican courts have a serious docketing problem. The delays for a definite and final resolution of cases continuously increase so that ultimately the awards are obsolete, out of context, and generally useless. Second, it is impossible for her legal system to be sensitive enough to new technological and economic developments of the current world. Super specialization, the significant role of technology in the legal field, the complexity of commercial relationships, and the consequences of a worldwide perspective of doing business override the domestic framework in which most of the national legal systems have been designed.
This Article will discuss why Costa Rica, as well as most Latin American countries, should enact new legislation on arbitration. It will explore the features or characteristics that make arbitration, under certain circumstances, a better alternative to resolve disputes than the ordinary courts. In other words, the paper will discuss why arbitration is a better alternative to achieve justice. The intention is to present a different approach on arbitration: first, by rejecting the traditional explanations about why Costa Rica and other Latin American countries have been reluctant to provide strong and consistent support for arbitration and second, by arguing against the thought that arbitration is a device to destroy the legal system. Hence, this Article is developed with the idea that, within the proper guidelines, arbitration could be the means to produce a revolution, in the sense of innovation and revitalization, in our legal system. Finally, with the support of the country's most recent experiences, this Article presents a new point of view about some of the main issues that must be taken into account in developing a consistent and successful arbitral system in Costa Rica. This Article will not, of course, be an exhaustive analysis of all the topics and details involved in drafting a statute on arbitration. Insofar as it can introduce new currents of thought in Costa Rica, and identify a point of origin for Costa Rica, the goals of this Article will have been accomplished.
About the Author
Victor Ml. Garita. Attorney, Facio & Camas; Professor of Commercial Law, University of Costa Rica; member of the Special Committee of the Costa Rica Bar Association for drafting arbitration legislation. LL.M. 1990, Tulane Law School.
Citation
65 Tul. L. Rev. 1633 (1991)