One of the most significant concerns in arbitration in Guatemala has been the risk that, when hearing an appeal against an arbitral award—that is, the only means of challenging such a decision—the Chambers of the Court of Appeals may modify the substance of the decision.
In line with the criteria upheld by the Constitutional Court in a recent ruling—which is examined below—this concern can be prevented by the parties themselves by including, in the contract or in the arbitration agreement formalized in writing, an express waiver of the right to challenge the arbitral award.
Article 43 of the Arbitration Law regulates the appeal for review as the only means of challenging an arbitral award. In this regard, there has been significant discussion regarding the validity and scope of an “a priori” waiver of the right to challenge the award.
Precisely, this “legal issue” was brought to the attention of the constitutional jurisdiction in the judgment dated September 30, 2025, handed down by the Constitutional Court in case 5134-2025.
The act challenged in the constitutional action was the decision issued by the First Chamber of the Court of Appeals for Civil and Commercial Matters, which dismissed the appeal for review filed by Empresa Eléctrica de Guatemala, S.A.
The appeal for review was filed against the arbitral award issued by the Arbitral Tribunal constituted within an international arbitration proceeding administered by the International Court of Arbitration of the International Chamber of Commerce (ICC) and its rules. Accordingly, the aforementioned Chamber confirmed the contested award at that time.
In the case under review, Empresa Eléctrica de Guatemala, S.A. entered into a contract with Transmisión de Electricidad S.A. for the supply of energy to end users of the distribution service not covered by the social tariff. This contract contained an arbitration agreement, whereby the parties agreed to submit all disputes or claims arising from the contract to international commercial arbitration.
Under this clause, the parties agreed to submit to arbitration in accordance with the Arbitration Rules of the International Chamber of Commerce in force at the time, with the proceedings being administered by the ICC International Court of Arbitration.
After the arbitration proceedings, Empresa Eléctrica de Guatemala, S.A. filed an appeal for review against the arbitral award issued at that time. Upon hearing this appeal, the First Chamber ruled as follows:
“Prior to analyzing the merits of the issues raised in this appeal, this Court considers it necessary to determine whether the legal requirements for its consideration are met, since the concurrence of such requirements is necessary and enabling for the examination of the arbitration award through review (…) Furthermore, in the mission statement signed by the parties, they expressly agreed that ‘In accordance with clause 18.3 of the Contract, the rules applicable to the proceedings in this arbitration are those contained in the ICC Rules, understood to be those in force as of March 1, 2017’. Article 35 of the Rules of Arbitration of the International Chamber of Commerce states that: “(…) Any award is binding on the parties (…) and they shall be deemed to have waived any remedies to which they may validly waive” (…) Accordingly, in the present case, there is a waiver of the right to challenge the arbitral award, which is evidenced by the acceptance by both parties to submit the arbitration proceedings to the Arbitration Rules of the International Chamber of Commerce, which contain within their provisions an express acceptance of the binding nature of the award and its non-appealability. Such a waiver is fully in accordance with our legal system, since the submission of the resolution of disputes to the respective Arbitration Tribunal is based on the principle of freedom of contract (…)”.
Based on this reasoning, the Chamber concluded that, by virtue of the valid and express waiver assumed by the parties, it was unable to hear the merits of the appeal for review. This was in strict compliance with the autonomy of the parties’ will as expressed in their acceptance of and submission to the aforementioned rules, in which they agreed not to challenge the award issued and to recognize its immediate binding nature.
Upon hearing the case in the constitutional court, the Constitutional Court determined that the contested decision did not violate the fundamental rights of Empresa Eléctrica de Guatemala, S.A. The Court determined that, from an analysis of the arbitration clause, it was clear that both parties had voluntarily submitted to the Rules of Arbitration of the International Chamber of Commerce, Article 35(6) of which expressly regulates the waiver of appeals against the arbitral award.
In this context, the Constitutional Court held that the doctrine of estoppel was fully applicable, insofar as the procedural conduct of Empresa Eléctrica was contradictory. Indeed, having freely entered into a contract in which it agreed to submit to arbitration proceedings in accordance with the ICC Rules—including waiving the right to challenge the award—it could not subsequently allege procedural defenselessness derived from rules that it itself had expressly consented to.
For this reason, the Court concluded that the grievances raised had no legal basis, and the requested protection was therefore inadmissible.
Regarding the reasoning of the Constitutional Court, it is important to emphasize that, based on an analysis of the arbitration clause and the contractual instruments, it was concluded that both parties freely, expressly, and knowingly submitted to the Arbitration Rules of the International Chamber of Commerce, accepting not only the arbitration proceedings but also their legal consequences, including the waiver of the means of challenging the award.
The ruling analyzed above is significant for arbitration in Guatemala, as it consolidates an interpretative line according to which the waiver of the right to challenge the arbitral award is considered valid when it originates from the autonomy of the will and the express acceptance of the parties.
