In recent years various sections of Guatemalan society have become increasingly aware of the significance of the justice system to progress in many aspects of life, including employment and working life, and to economic, social and cultural development in general. This has led to greater involvement of these sectors in observing, analysing and cooperating in processes traditionally reserved for certain groups, such as the election of the attorney general, the national comptroller and judges of the Supreme Court and the Constitutional Court.
Such involvement is fundamental to the role of the state in its inhabitants' development and the concept of the democratic rule of law. In achieving these goals, much depends on the effectiveness and transparency of the justice system. However, the main social stakeholders have recognised that it is not enough merely to have qualified people of integrity in key positions within the judiciary; it is equally important to promote alternative dispute resolution (ADR) methods that relieve pressure on the traditional mechanisms for the administration of justice while ensuring prompt, credible and effective outcomes for parties in dispute. This has led to the increased use of methods such as negotiation, mediation, conciliation and arbitration - a trend reflected not only elsewhere in Central America, but throughout the world.
However, in order for such methods to be effective, they require the involvement of the judiciary in issuing preventive injunctions. Such intervention must be compulsory in view of the potential consequences of such injunctions, while providing the necessary legitimacy that can be conveyed only by a judge's decision.
Preventive injunctions are intended mainly to guarantee the outcome of a dispute resolution process, providing legal certainty to the stakeholder and lending legitimacy to the initiation of the process. Such an injunction effectively represents a guarantee that at the conclusion of the process, it will be possible to give effect to the decision and the rights upheld thereby.
However, such judicial measures must be applied with the two basic principles of proportionality and suitability in order to avoid unconscionable pressure and abuse of process. Given the sensitivity of such orders, a judge has exclusive authority to decide whether they are appropriate, as they lend an element of legal certainty to what are otherwise voluntary private law procedures.
It is vital that preventive injunctions can be issued and implemented promptly, as this is the best way to promote the use of ADR and encourage wider acceptance of such methods.
At the request of a party to arbitration, the arbitrators may order preventive injunctions and demand a suitable guarantee to cover any resulting liability. Parties or arbitrators may also apply to a civil judge of first instance for the imposition or lifting of such injunctions.
The judiciary's involvement is vital as, in practice, if an arbitral tribunal issues a preventive injunction, the parties may believe that there is fundamental lack of equity in the alternative resolution method, resulting in a lack of trust at the earliest stages of the arbitral process.
For this reason, a competent judge should be deemed solely accountable for ordering the imposition and lifting of such interim measures. This not only confirms the suitability and relevance of the ADR process and sets it on a firm procedural footing, but dissociates these facilitating measures from the actions and decisions of those who will examine and resolve the conflict in depth.
For further information on this topic please contact Juan José Porras or Lourdes Maria Rodriguez at Palomo & Porras by telephone (+1 502 2279 7474), fax (+1 502 2279 7475) or email ([email protected] or [email protected]).