Incumplimiento de cláusulas escalonadas ¿Un problema de jurisdicción o admisibilidad?.

Abstract

Agreeing that an arbitration agreement contains the structure of an escalation clause is an event of great procedural relevance that can either save formidable time and economic resources of the parties, or also cause a significant loss thereof. Over the years, it can be identified that when arbitration is agreed as the last resort for dispute resolution in the form of an escalation clause, and if the mechanisms prior to it have not been complied with, common objections to the jurisdiction or admissibility of the arbitral tribunal or the claim, respectively, are evidenced at the beginning of the arbitration proceedings. Interestingly, however, when resolving these objections, tribunals have had different criteria for different reasons, deciding on factually similar cases. For this reason, this paper will delve into whether the objection of non-compliance with an escalation clause, specifically, pre-arbitration mechanisms, constitutes an objection that should be classified as a matter of jurisdiction or admissibility.