Litigation and enforcement in Argentina: overview

A Q&A guide to dispute resolution law in Argentina.

The country-specific Q&A gives a structured overview of the key practical issues concerning dispute resolution in this jurisdiction, including court procedures; fees and funding; interim remedies (including attachment orders); disclosure; expert evidence; appeals; class actions; enforcement; cross-border issues; the use of ADR; and any reform proposals.

To compare answers across multiple jurisdictions visit the Litigation and enforcement Country Q&A tool.

This Q&A is part of the global guide to dispute resolution. For a full list of jurisdictional Q&As visit www.practicallaw.com/dispute-guide.

Contents

Main dispute resolution methods

1. What are the main dispute resolution methods used in your jurisdiction to settle large commercial disputes?

The main dispute resolution method used in Argentina to settle large commercial disputes is adversarial litigation through the courts. Alternative dispute resolution methods, such as arbitration and mediation, are being also considered. In some jurisdictions, for example in the federal capital the City of Buenos Aires, a prior mediation procedure is mandatory before filing a judicial claim.

The standard of proof is based on the principle that whoever affirms a fact must provide evidence to support it. There are certain exceptions in which the principle is reversed and the burden of proof is on the defendant to show negligence or wilful misconduct by the claimant or a third party (for example, under the Consumers Protection Law (Law No. 24,240), and torts involving dangerous objects). Exceptionally, in some cases the judge can decide that the burden of the proof is on the party who is best placed to produce the evidence.

 

Court litigation

Limitation periods

2. What limitation periods apply to bringing a claim and what triggers a limitation period?

In local jurisdictions where mediation proceedings are mandatory, time limits for bringing a claim are provided in the corresponding statutes. For example, in the City of Buenos Aires, under the Law on Mediation and Conciliation (Law No. 26,589), mediation proceedings expire one year after the closure of the proceedings if a judicial claim has not been brought. In such a case, the requesting party would then have to reinitiate the mediation proceeding.

The applicable statute of limitations must be taken into account in all cases.

The new Civil and Commercial Code (CCC), in force since August 2015, provides, as a general principle, that the limitation period is five years (section 2560). As such, contractual liability is subject to this term.

However, the CCC also establishes special terms for specific matters, as is the case with:

  • Claims for damages, where the statute of limitations term is of three years (section 2561).

  • Claims that accrue over periods of years or shorter regular instalments, where the statute of limitations term is of two years (section 2562).

  • Claims regarding any endorsable or bearer documents, where the statute of limitations term is one year (section 2564).

The limitation period may be interrupted by any petition by the right holder before a judicial authority that reflects the intention not to abandon the right, even if that petition was defective or made before an incompetent court.

 

Court structure

3. What is the structure of the court where large commercial disputes are usually brought? Are certain types of dispute allocated to particular divisions of this court?

The Argentinean National Constitution establishes a dual judicial system consisting of the federal and the ordinary jurisdictions. The federal justice system exercises its authority throughout Argentina in specific matters referred to in federal laws. In turn, the ordinary judicial courts handle cases within the City of Buenos Aires and the provinces, and have jurisdiction in all matters governed by common and local law.

Each jurisdiction has specific courts that cover different areas of law. For commercial matters, there are commercial courts or civil and commercial courts in each jurisdiction. Within each jurisdiction, there are courts of first instance (headed by a judge) and appellate courts (with several judges).

In the City of Buenos Aires, the federal civil and commercial courts exercise jurisdiction over maritime and aviation disputes, intellectual property and inter-jurisdictional transport disputes, among other things. The ordinary commercial courts exercise jurisdiction over ordinary commercial laws disputes, construction agreements disputes, leasing disputes, corporate disputes and the remaining general commercial matters.

The scope of the intervention of the Supreme Court is quite restricted and it only exercises its jurisdiction in the following situations:

  • As an exclusive and original jurisdiction in all matters concerning ambassadors, ministers and consuls, or when a province is a party to the proceeding.

  • In exceptional cases on appeal against lower courts' final judgments that are contrary to the Constitution, a treaty, or a federal law, or when the judgment is considered arbitrary, or when it is a case of institutional seriousness (that is, a federal issue is raised).

  • In cases where the state is involved, extradition of criminals is sought by foreign countries, and matters that would give rise to maritime embargoes in wartime.

The answers to the following questions relate to procedures that apply in national commercial courts and in the National Commercial Appellate Court.

 

Rights of audience

4. Which types of lawyers have rights of audience to conduct cases in courts where large commercial disputes are usually brought? What requirements must they meet? Can foreign lawyers conduct cases in these courts?

Rights of audience/requirements

The following are required to practise as a lawyer and conduct cases before the courts:

  • A law degree from an officially recognised university.

  • Registration before the Bar Association corresponding to the jurisdiction in which the dispute takes place.

  • Not to have any legal incompatibilities or impediments.

  • Legal domicile in the jurisdiction in which the dispute takes place.

Foreign lawyers

Foreign lawyers cannot conduct cases in the courts unless they meet the requirements listed above.

 

Fees and funding

5. What legal fee structures can be used? Are fees fixed by law?

Legal fee structures vary depending on the type of case and the agreements that can be reached with the clients. Legal services can be charged as follows:

  • As an hourly rate, based on the seniority and credentials of the professionals involved.

  • By stage of the proceeding, with the amount set for each of them.

  • As capped fees, retainers or contingency fees.

  • A mix of different fee alternatives.

The Attorneys' Fees Law (Law No. 21,839), which governs in cases where the national courts are competent, establishes that attorneys' fees for proceedings before first instance courts are determined at between 11% and 20% of the amount of the process. The attorneys of the losing party's fees are determined between 7% and 17% of the amount of the process.

Under section 6 of the Attorneys' Fees Law, the determination of attorneys' fees should reflect the following guidelines:

  • The amount involved in the proceeding.

  • The nature and the complexity of the case or proceeding.

  • The result that has been obtained, and the relationship between the professional management of the case and the likelihood of satisfaction of the claim by the losing party.

  • The quality, effectiveness and extent of the work.

  • The performance with respect to timeliness.

  • The legal, moral and economic importance of the matter or the proceeding for future cases, for the client, and for the economic situation of the parties.

Section 4 of the Attorneys' Fees Law allows attorneys to agree with their clients that the fees for their activity in one or more matters or proceedings are linked to the success and outcome of the case. In such cases, fees cannot exceed 40% of the economic outcome obtained without prejudice to the attorneys' right to collect fees that must be borne by the losing party.

When professional involvement in the outcome of the proceeding is higher than 20%, expenses that correspond to the client's defence and the client's responsibility for the court costs must be borne by the attorney, unless otherwise agreed.

 
6. How is litigation usually funded? Can third parties fund it? Is insurance available for litigation costs?

Funding

During the proceedings the claimant must bear the costs of the mediation procedure and the litigation fee for access to court, and each party must bear their attorneys' legal fees. Each party therefore funds the costs of the litigation.

The final judgment then determines which party must bear the costs of the proceeding. As a general principle, the losing party bears the legal costs and expenses.

There are no express legal provisions on third parties funding litigation and, therefore, no specific restrictions. In such cases, the general rules on law concerning obligations and contracts apply between the third party and the claimant. In addition, a party can assign disputed rights and/or claims to another party.

Insurance

Civil liability insurance can cover the costs of legal expenses, such as attorneys' fees. Legal expenses insurance is an additional coverage within the scope of civil liability but is not considered an independent insurance (that is, the insurer must protect the insured from all liabilities, claims, costs and losses, which means that it must bear the legal costs and expenses of the proceeding).

 

Court proceedings

Confidentiality

7. Are court proceedings confidential or public? If public, are the proceedings or any information kept confidential in certain circumstances?

The general rule is that court proceedings are public. However, there are cases in which only the parties, their attorneys and the appointed experts can access the file, such as:

  • When it is a matter of confidential nature.

  • When it deals with family law.

  • When it is a case in which its reservation is ordered by the court.

Under section 125 of the Civil and Commercial Code of Procedure, hearings are public. However, the judge may resolve that they must be held totally or partially confidential in cases that may affect public morals, order or security, or the right to intimacy.

 

Pre-action conduct

8. Does the court impose any rules on the parties in relation to pre-action conduct? If yes, are there penalties for failing to comply?

In the City of Buenos Aires and in some provinces in Argentina, parties must initiate a mandatory pre-trial mediation proceeding before bringing a judicial claim. As a first step, the mediator summons the parties to a first hearing in which they present their case.

If the parties reach an agreement, the mediator issues a document that states the terms and conditions of that agreement. If the parties do not reach an agreement, or if any party requires the ending of the mediation at any time, the mediation proceeding is closed. The mediator then issues a document stating that the mediation proceeding is concluded, which should then be signed by the parties and the mediator. The claimant can then file the lawsuit before the competent judicial court.

 

Main stages

9. What are the main stages of typical court proceedings?

Starting proceedings

The general structure of commercial proceedings under the Civil and Commercial Code of Procedure (CCCP) consists of five main stages:

  • The introductory stage.

  • The evidence stage.

  • The ruling stage.

  • The appeal stage.

  • The enforcement stage.

The general rule in commercial disputes is that the parties must act to further the proceedings. However, the judge has the obligation and authority to take necessary actions to avoid the procedure being abandoned (section 36, CCCP).

To file a complaint before the competent court, the claimant must pay a filing fee and complete a form. The receipt of payment and the complete form, together with the complaint, must be submitted before the Commercial Court of Appeals, which assigns by lot a first instance court and gives a name and a number to the court file.

The claimant then files the complaint before the first instance court, which must include:

  • All the relevant facts.

  • The underlying law that is to serve as support for the claimant's position, including case law and opinions of legal scholars.

  • Contact information of the parties involved in the dispute, including name and address.

  • The relief sought.

  • The amount claimed.

  • Documentary evidence. Only in exceptional circumstances is documentary evidence allowed to be filed afterwards.

  • All of the remaining evidence, such as expert opinions and witnesses, must be proposed with the filing of the claim.

Notice to the defendant and defence

If the preliminary requirements of the complaint are met, the first instance court issues a resolution that the complaint has been duly submitted and the claimant is a party to the proceedings. The court also orders the defendant to be summoned. The general term for the defendant to file the answer to the complaint is 15 working days.

The defendant must deny any disputed facts in the claim in its answer. Facts that have not been challenged in the answer are assumed to be undisputed by the defendant.

When answering the complaint, the defendant must clearly specify the facts alleged as grounds for defence, and must fulfil the same requirements as for the complaint. In addition, all defences must be included within the answer to the complaint. Those which are of a predominately procedural nature, such as lack of jurisdiction, may be treated and solved through a preliminary decision.

The defendant can submit a counterclaim jointly with the answer to the complaint, in which case the court must notify the claimant so that the claimant can answer it.

Subsequent stages

The evidence stage starts with a formal hearing chaired by the judge of the first instance court (although, in practice, this rarely happens since it is held in the presence of the court's clerk). During the hearing the judge should:

  • Pursue a settlement between the parties.

  • Receive any comments that the parties might be interested in giving.

  • State the facts that the parties will have to prove.

  • Receive the deposition of the parties involved in the dispute.

  • Decide whatever might be relevant in connection to the production of the remaining evidence offered.

The judge can reject evidence considered unnecessary or irrelevant. When the period for the production of evidence has elapsed, both parties simultaneously file their final allegations. The evidence stage finishes with a resolution of the judge stating that the judgment can be rendered.

During the ruling stage, the parties cannot file any writ or produce any evidence. The term for the first instance court to render the judgment is 40 working days. The parties can appeal the judgment before the Court of Appeals.

 

Interim remedies

10. What actions can a party bring for a case to be dismissed before a full trial? On what grounds must such a claim be brought? What is the applicable procedure?

Together with the answer to the complaint, the defendant can submit defences called "prior motions" (excepciones previas) to be resolved before a full trial. Such defences are restricted to:

  • Lack of jurisdiction.

  • Lack of legal representation.

  • Lack of legal standing to sue or to be sued.

  • That another identical suit is pending.

  • A legal defect in the claim.

  • That a judicial decision already applies to the matter.

  • The dispute is subject to a transaction and/or conciliation, or the suit is withdrawn.

  • The limitation period having expired.

The prior motion is notified to the claimant, who can contest it. These motions can be decided before the full trial but are usually decided jointly with the final judgment.

 
11. Can a defendant apply for an order for the claimant to provide security for its costs? If yes, on what grounds?

The Civil and Commercial Code of Procedure does not expressly recognise a right to apply for an order for the claimant to provide security for its costs. There is an exception for claimants domiciled abroad in a country that has not signed a specific treaty in which case the court can order claimant to provide security for its costs.

 
12. What are the rules concerning interim injunctions granted before a full trial?

Availability and grounds

To grant a precautionary measure the court requires:

  • Sufficient evidence, in the court's discretion, to create a presumption that the requesting party has a right to be protected.

  • Sufficient evidence to prove the urgent need for such a measure.

  • The submission of a guarantee by the requesting party to cover the potential damages that the interim measures may cause.

Prior notice/same-day

Under section 198 of the Civil and Commercial Code of Procedure (CCCP), precautionary measures can be ordered without prior notice (ex officio) to avoid the frustration of the execution of the measure.

In urgent cases, these measures can be ordered by the judge in a very short time.

Mandatory injunctions

Precautionary measures can be ordered to:

  • Preserve assets (such as attachments).

  • Protect persons.

  • Maintain a status quo (such as orders not to innovate and orders not to contract).

In addition, section 232 of the CCCP allows for generic precautionary measures, including any urgent measures that are appropriate to preserve the eventual enforcement of the final judgment in the circumstances.

Rights of appeal

A court resolution ordering the granting of a precautionary measure or denying it can be appealed by the parties within five days. If the measured is ordered, the appeal does not suspend its effects.

 
13. What are the rules relating to interim attachment orders to preserve assets pending judgment or a final order (or equivalent)?

Availability and grounds

An interim attachment is a precautionary measure that can be granted in the following cases, among others:

  • The debtor has no domicile in Argentina.

  • The claimed credit is evidenced by a public or private instrument.

  • There is a contract between the parties that has been proved, and the claimant has complied with his obligations.

  • The claimed debt is recorded in the accounting books that are duly kept, or the debt is certified by a public accountant.

  • It has been summarily proved that:

    • the debtor is trying to sell, hide or transport goods; or

    • the solvency of the debtor has significantly decreased.

  • The petitioner has obtained a favorable judgment, even if it is subject to appeal.

The standard of proof is the same as applicable for any precautionary measure (see Question 12).

Prior notice/same-day

See Question 12.

Main proceedings

Under section 2603 of the Civil and Commercial Code, Argentinean courts can grant precautionary measures in the following cases:

  • When Argentinean courts are competent in the substantive proceedings, even if the goods or the persons are not in Argentina.

  • When it is requested by a competent foreign judge or, when urgent, if the goods or the persons are in Argentina.

  • When a foreign judgment is to be recognised or enforced in Argentina.

Preferential right or lien

Under section 218 of the Civil and Commercial Code of Procedure (CCCP), a creditor who has obtained the attachment of his debtor's assets can, if those assets are not subject to prior secured interests, collect his entire credit, as well as interests and expenses, before any other creditor, unless the defendant falls into bankruptcy. In bankruptcy, a special privilege regime applies.

Damages as a result

A party who requests a measure is liable for any damages that it causes to the other party, if it is found that the measure had been wrongfully requested after granting and executing. Under the CCCP, a party that requests such measures must give security to pay for the costs and damages that the measure may cause to the other party.

Security

The claimant must provide security. It may be an affidavit to pay, or a personal security (a legal deposit of a sum of money), or a real security (such as the submission of the real estate deed).

 
14. Are any other interim remedies commonly available and obtained?

The other main remedies available before the full trial stage are:

  • Seizure.

  • Judicial oversight.

  • Restraint of property.

  • Order not to innovate.

  • Order not to contract.

  • Generic precautionary measures.

  • Anticipated production of evidence.

  • Registration of pending litigation.

All interim remedies are subject to the same requirements.

 

Final remedies

15. What remedies are available at the full trial stage? Are damages just compensatory or can they also be punitive?

Once the decision on the merits is rendered, the court can order the following remedies:

  • Declaration of the existence or scope of a right or legal status.

  • Recognition of a right of the prevailing party, which includes:

    • ordering payment of compensation for damages caused;

    • requiring the losing party to perform an obligation.

  • Modification of an existing legal situation.

Civil liability aims only to prevent damages and to compensate for damages caused (section 1708, Civil and Commercial Code).

Exceptionally, punitive damages are recognised under section 52 bis of the Consumers Protection Law, under which the court may, at the request of the aggrieved party, impose a civil fine in favour of the consumer on suppliers that breach statutory or contractual obligations towards consumers.

 

Evidence

Disclosure

16. What documents must the parties disclose to the other parties and/or the court? Are there any detailed rules governing this procedure?

Argentinean procedural rules do not include a concept of "discovery". However, before the start of proceedings, parties can request from the court:

  • Preparatory measures. These are intended to prepare for the proceeding by obtaining data, reports or specific information necessary to the submittal of the claim. Preparatory measures can be requested by potential claimants, or defendants that foresee the proceedings.

  • Production of evidence before trial. These measures are aimed at preventing evidence from being lost. Section 326 of the Civil and Commercial Code of Procedure establishes that parties can request the disclosure, protection or seizure of documents that are related to the subject matter of the claim. The anticipated production of evidence must be carried out with the intervention of the other party, unless there are reasons of urgency that authorise its non-intervention. If so, the court will order the intervention of a public defence attorney.

Once the proceedings have begun, the parties and third parties have a duty to produce documents in their possession, or disclose the location thereof, when the documents are relevant to the case. If the document is in possession of a third party, the court will request the third party to submit the document to the proceedings. The third party can challenge its filing if the document is of its exclusive property and disclosure may cause the third party damage.

There are no procedural rules concerning the disclosure of electronic documents. All documents, including electronic ones, must be submitted in paper format (for example, e-mails must be printed and attached to the complaint or answer to the complaint). If such documents are not recognised by the other party, the party that submitted the documents should offer a system engineer's report to confirm the validity, existence and so on of the documents.

It has become customary to provide the court and the other party with CD-ROMs containing the recorded evidence.

 

Privileged documents

17. Are any documents privileged? If privilege is not recognised, are there any other rules allowing a party not to disclose a document?

Privileged documents

Law No. 23,187, which governs the practice of law in the City of Buenos Aires, provides that lawyers can withhold the disclosure of documents on the basis of legal professional attorney-client privileges, unless the person involved expressly authorises its disclosure.

On 22 February 2008, the Supreme Court stated in Rossi, Domingo Daniel on illicit enrichment of public officials, resolution 330 that a violation of professional secrecy occurs when a lawyer raises facts or documents that have been entrusted to him by his client on the occasion or in the exercise of his profession.

Other non-disclosure situations

Section 318 of the Civil and Commercial Code provides that correspondence can be filed as evidence by the recipient, except for confidential correspondence that cannot be used without the sender's consent. In addition, third parties cannot file confidential correspondence without the sender's and the recipient's consent.

 

Examination of witnesses

18. Do witnesses of fact give oral evidence or do they just submit written evidence? Is there a right to cross-examine witnesses of fact?

Oral evidence

Witnesses of fact testify orally in hearings fixed by the courts. The hearing should be held in the presence of the judge (although, in practice, it is usually held in the presence of the court's main clerk).

Witnesses must take an oath or promise to tell the truth, and must be informed of criminal penalty for giving false testimony or reluctance to testify.

Witnesses are questioned by the party who called them. The other party can cross-examine witnesses.

Exceptionally, if certain public officers listed in the Supreme Court's regulation are summoned as witnesses (such as the President, the Vice-President, ministers, governors, magistrates of the judicial branch, state prosecutors, ambassadors, rectors and deans of national universities, and so on), they are allowed to submit a written testimonial statement.

Right to cross-examine

Cross-examination is admitted at the evidence stage and in the same hearing.

 

Third party experts

19. What are the rules in relation to third party experts?

Appointment procedure

The claimant (when filing the complaint) and the defendant (when answering) can offer expert evidence together with the rest of the evidence, indicating the expert's specialisation and the issues that the expert will cover when filing its report.

If the expert evidence is admitted, the court will appoint an expert from the list of court's official experts, and determine the issues that the expert's evidence covers.

Experts are not considered witnesses.

Role of experts

Experts are considered as auxiliaries to the court, and therefore provide independent advice to the court. Each party can appoint a technical consultant who can file his own expert report in writing. The appointment of the consultant is stated at the time that the expert evidence is proposed to the court.

Right of reply

During the evidence stage, and after the expert has submitted his written report, the court forwards the report to all the parties, who can challenge it or request clarifications. The court can order the expert to give additional explanations, either verbally or in writing, the latter being the most frequent option.

Fees

Expert fees are considered as part of the costs of the proceeding. The judge orders how those costs should be borne in the judgment. The general principle is that the losing party bears the costs of the proceeding, including experts' fees.

Exceptionally, costs are supported by the party offering the expert's opinion as evidence when the counterparty states it has no interest in the evidence itself.

 

Appeals

20. What are the rules concerning appeals of first instance judgments in large commercial disputes?

Which courts

An appeal to revoke or modify a final judgment must be submitted before the first instance court, without giving grounds. The first instance court must then decide whether the appeal is admissible. If it decides that the appeal is admissible, the court grants the appeal on the formal aspects and sends the case file to the appeal court, the National Commercial Court of Appeals in the City of Buenos Aires.

Grounds for appeal

Once the court file is received by the Court of Appeals, it notifies the parties. The parties must then submit their grounds for appeal within ten days from receipt of such notification, challenging reasonably and concretely those sections of the judgment that they consider wrong. That writ is served to the counterparty for response.

Time limit

The time limit for filing an appeal is five working days.

 

Class actions

21. Are there any mechanisms available for collective redress or class actions?

Collective rights have acquired constitutional status under reforms made to the Constitution in 1994. In addition, the sections 52 to 58 of the Consumers Protection Law recognise persons entitled to represent consumers and bring claims before courts on their behalf, such as:

  • An affected person.

  • The ombudsman.

  • The general attorney office.

  • Users' and consumers' associations.

However, the procedural aspects of class actions have never been regulated by statute. On 24 February 2009, the Supreme Court admitted a class action through a leading case in re Halabi Ernesto v Executive Branch – Law 25,873 and Decree 1563/04 on application for "amparo", Law 16,986 (Halabi). The Supreme Court ruled that in cases where individual rights are threatened by the same fact or cause, called by the court a "homogeneous factual cause", it is reasonable for that fact to be proved and decided in a single proceeding. In addition, the claim must be focused on the common effects, and not on those that each party could claim individually.

The decision of the Supreme Court in this case applied an "opt out" criterion, following the provisions in section 54 of the Consumers Protection Law. This means that a judgment declaring a class action admissible applies to all consumers other than those who state their intention to the contrary before the judgment.

Class actions have the same structure as ordinary commercial proceedings. However, the Halabi case included some specific procedural requirements:

  • The representative of the class members must prove its qualification to act on behalf of the class.

  • The notice system implemented to inform the general public about the existence of the case and its developments should be effective, in order to allow individuals to decide to either opt out or participate in the case.

The procedure itself must be made public to prevent the redundancy or replication of claims with the same subject matter.

 

Costs

22. Does the unsuccessful party have to pay the successful party's costs and how does the court usually calculate any costs award? What factors does the court consider when awarding costs?

The general principle under section 68 of the Civil and Commercial Code of Procedure is that the losing party bears all court costs, including those incurred by the opposing party. However, the court may find reasons to exempt the losing party, either fully or partially, from the obligation to pay the costs of the proceeding.

In addition, the costs of the proceeding may not be charged to the defendant if he admits the claim before submitting an answer to the complaint, if such admission is real, unconditional, timely, total and effective.

When the outcome of a lawsuit is partially favourable to both parties, the court may decide to distribute the total costs of the proceeding between the parties.

 
23. Is interest awarded on costs? If yes, how is it calculated?

Interest on the costs of the proceeding is awarded to preserve the full compensation to the prevailing party. If the parties have not agreed on interest, and there are no applicable statutory provisions, the judge determines the interest applicable. The active interest rate set out by the National Bank of Argentina is usually used by the courts in commercial matters.

 

Enforcement of a local judgment

24. What are the procedures to enforce a local judgment in the local courts?

If the losing party fails to comply with the judgment, the court will order an attachment of the debtor's assets at the request of the prevailing party. The court then summons the debtor, who can raise specific motions (for example, for changes to the judgment, or under the statute of limitations). If the court rejects the motions, or if the debtor does not raise any, the court will order the public auction of the attached assets.

 

Cross-border litigation

25. Do local courts respect the choice of governing law in a contract? If yes, are there any areas of law in your jurisdiction that apply to the contract despite the choice of law?

Courts respect the choice of governing law in a contract, subject to certain restrictions under sections 2599 and 2600 of the Civil and Commercial Code. Internationally mandatory rules of Argentinean law prevail over the agreement between the parties with regard to the governing law, and exclude the application of foreign law despite what the parties may have agreed. In addition, foreign law will not be applied when it leads to solutions that are incompatible with Argentinean public order principles.

 
26. Do local courts respect the choice of jurisdiction in a contract? Do local courts claim jurisdiction over a dispute in some circumstances, despite the choice of jurisdiction?

Under section 2605 of the Civil and Commercial Code, parties can agree the jurisdiction of foreign judges or arbitrators acting abroad regarding property/patrimonial and international matters.

 
27. If a foreign party obtains permission from its local courts to serve proceedings on a party in your jurisdiction, what is the procedure to effect service in your jurisdiction? Is your jurisdiction party to any international agreements affecting this process?

Argentina is a party to the following multilateral international conventions, among others:

  • The International Procedural Law Treaty approved by Bolivia, Paraguay, Perú, Uruguay and Argentina at the South American Congress on Private International Law 1888.

  • The International Procedural Law Treaty approved by Paraguay, Uruguay and Argentina at the Second International Conference on Private International Law 1940.

Both treaties provide that trials, whatever their nature may be, must proceed according to the law of the state where the proceedings are held.

In addition, under section 136 of the Civil and Commercial Code of Procedure, lawsuits must be notified by legal notice served by a court official or by a minute certified by a notary public.

 
28. What is the procedure to take evidence from a witness in your jurisdiction for use in proceedings in another jurisdiction? Is your jurisdiction party to an international convention on this issue?

Argentina is a party in two multilateral international conventions:

  • The Convention on the Obtaining of Evidence Abroad, adopted by The Hague Conference on Private International Law 1976.

  • The Inter-American Convention on the Receipt of Evidence, adopted by The First Inter-American Conference on Private International Law 1975.

In general terms, both conventions establish that the judicial authority that executes a rogatory letter must apply the legislation of its own country regarding the procedures to be followed for that execution.

 

Enforcement of a foreign judgment

29. What are the procedures to enforce a foreign judgment in the local courts?

Within the Mercosur trading block, Argentina has signed a Protocol on Co-operation and Jurisdictional Assistance in Civil, Commercial, Labour and Administrative matters with Brasil, Paraguay and Uruguay, which establishes the requirements for the mutual recognition and enforcement of judgments.

In addition, section 517 of the Civil and Commercial Code of Procedure establishes that judgments issued by courts of countries with which Argentina has no treaties regarding enforceability, are enforceable if the following requirements are met:

  • The judgment must be final and must be issued by a competent court.

  • The party against whom the judgment is being enforced must have been personally summoned and guaranteed the defence of its legal rights.

  • The judgment must be valid in accordance with the law of the place in which it was issued.

  • The judgment cannot affect legal principles of public order under Argentinean law.

  • The judgment must not be inconsistent with former or simultaneous judgments rendered in Argentina.

A request must be filed in writing, must be clearly grounded on facts and on applicable law, and all pertinent evidence must be submitted. Notice of the filing must be given to the other party, who has five working days to answer and offer evidence.

Once answered, the judge orders the production of evidence. The judge then issues a resolution, which may be appealed.

After the foreign judgment has been acknowledged, it is governed by the same enforcement rules as judgments issued by national courts.

 

Alternative dispute resolution

30. What are the main alternative dispute resolution (ADR) methods used in your jurisdiction to settle large commercial disputes? Is ADR used more in certain industries? What proportion of large commercial disputes is settled through ADR?

The ADR methods under the procedural rules are mediation, arbitration and, in some cases, expert determination.

Mediation is frequently used since in several jurisdictions it is mandatory for the claimant to initiate a mediation proceeding before bringing a judicial claim.

Under the Civil and Commercial Code of Procedure (CCCP), parties can submit their disputes to arbitration before or during any court proceeding, regardless of the status of the proceedings. Arbitration agreements are also regulated by the new Civil and Commercial Code. It is usual in large international commercial transactions, particularly when foreign investors are involved, for parties to agree to submit potential disputes to arbitration. Arbitration is particularly used to solve disputes in the oil and gas industry, the energy, construction and automotive industries , M&A transactions, corporate disputes, and so on.

Under the CCCP, the parties must entrust the determination of certain specific factual issues to one or more persons with expertise in the relevant subject matter requiring specific knowledge. Such an expert's decision is binding on the court. Expert determination is admissible either during a court proceeding or outside of it.

No official statistics are available concerning the proportion of large commercial disputes that are settled through ADR.

 
31. Does ADR form part of court procedures or does it only apply if the parties agree? Can courts compel the use of ADR?

Mandatory pre-trial mediation proceedings are required in the City of Buenos Aires and some provinces.

Arbitration has a contractual nature and therefore an agreement must submit a dispute to arbitration.

 
32. How is evidence given in ADR? Can documents produced or admissions made during (or for the purposes of) the ADR later be protected from disclosure by privilege? Is ADR confidential?

Under the Law on Mediation and Conciliation, one of the principles governing mandatory pre-trial mediation proceedings is confidentiality regarding to the information disclosed by the parties, their counsels and third parties during proceedings. This does not require an explicit agreement between the parties.

The scope of the confidentiality comprises the documents and any other working material that the parties produce or evaluate for the purposes of the mediation.

Section 1658 of the Civil and Commercial Code allows parties to agree on the confidentiality of the arbitration.

 
33. How are costs dealt with in ADR?

The Civil and Commercial Code of Procedure (CCCP) establishes that the costs of the proceedings should be determined in the judgment. However, i cases in which pre-trial mandatory mediation is not successful, its costs should be included with the expenses of the proceedings.

In commercial arbitration, if parties have not reached an agreement on costs and the applicable rules are silent in this respect, the general principle under section 68 of the CCCP applies (see Question 22).

Arbitral institutions usually provide in their applicable rules a costs table that allocates the costs of the proceedings depending on, among other factors, the amount claimed in the dispute.

 
34. What are the main bodies that offer ADR services in your jurisdiction?

The main bodies that offer ADR services are:

  • The General Arbitration Tribunal of the Buenos Aires Stock Exchange. Deals with all type of disputes, including domestic and international disputes (email: info@bcba.sba.com.ar).

  • Business Mediation and Arbitration Centre. Offers both mediation and arbitration services, specialising in business matters. It provides a list of renowned arbitrators who are professionals with expertise in both the business and arbitration fields. It administers both domestic and international arbitrations (email: info@medyar.org.ar).

  • Centre for Mediation and Arbitration of the Argentine Chamber of Commerce. Offers both mediation and arbitration services, specialising in commercial matters. It administers both domestic and international arbitrations.

 

Proposals for reform

35. Are there any proposals for dispute resolution reform? If yes, when are they likely to come into force?

Agreement No. 3/2015 of the Supreme Court in relation to e-filing was to come into effect in May 2015, but the Supreme Court has delayed its entry into force, first to 1 September 2015, and then to 2 May 2016. The Agreement states that, within 24 hours from the paper submission of any presentation, an e-filing must be uploaded to the court's system as a digital copy in PDF format. The court can, at the time of providing the submission, state that the digital file is uploaded (making it available to the other party) or, if it must be forwarded to the other party by a formal notice, the attorney must perform the following steps:

  • Generate the notice in the system as a PDF document.

  • Attach to the notice the digital file.

  • Send it to the other party's electronic domicile.

The Agreement establishes that this system of electronic notification will be mandatory and exclusive.

Congress has also given preliminary approval to a new Attorneys' Fees Law bill.

 

Online resources

Legislative Information & Documentation Centre, Ministry of Economy of Argentina (Información Legislativa y Documental) (Infoleg)

W www.infoleg.gov.ar

Description. The official website of the Legislative Information & Documentation Centre, Ministry of Economy of Argentina. Contains the Civil and Commercial Code and Civil and Commercial Code of Procedure.



Contributor profiles

Emilio N Vogelius, Partner

Estudio Beccar Varela

T +54 11 4379 6836
F +54 11 4379 6869
E evogelius@ebv.com.ar
W www.ebv.com.ar

Professional qualifications. Argentina, Law degree (University of Buenos Aires, 1976)

Areas of practice. Arbitration, litigation, intellectual property and corporate law, particularly in relation to the pharmaceutical industry.

Languages. Spanish and English

Professional associations/memberships. Buenos Aires Bar Association; Spanish Club of Arbitration; Rioplatense Chapter of the CEA; Business Centre of Mediation and Arbitration.

Gonzalo García Delatour, Partner

Estudio Beccar Varela

T +54 11 4379 6843
F +54 11 4379 6869
E gdelatour@ebv.com.ar
W www.ebv.com.ar

Professional qualifications. Argentina, Law Degree (University of Buenos Aires, 2000); Specialisation in Corporate Law (Universidad de Buenos Aires, 2000); Participated in a Research Programme on American and Comparative Law, University of Denver, US, 2005.

Areas of practice. Dispute resolution, cross-border disputes, complex litigation, international and domestic arbitration.

Languages. Spanish and English

Professional associations/memberships. Buenos Aires Bar Association; Spanish Club of Arbitration; CEA – 40; Rioplantense Chapter of the CEA; Young International Arbitration Group of the LCIA; Business Centre of Mediation and Arbitration.

Publications

  • The Rule of Law and Economic Development in Latin America jointly with Ed Vidal (Latin Lawyer 2006).
  • Contribution to Rule of Law, Economic Growth and Prosperity, Americas Society and Council of Americas (2006).
  • El control Jurisdiccional en Iberoamérica: ¿Es la Etapa que sigue al Recurso de Anulación de un laudo en un proceso Arbitral? (Lima, 2007).
  • La revisión judicial en Argentina de decisiones de trámite dictadas en el procedimiento arbitral. Comentario al fallo, EN - Procuración del Tesoro de la Nación- c. Tribunal Arbitral, de la Cámara Nacional de Apelaciones en lo Contencioso Administrativo Federa l– Revista de Dercho y Tribunales, Uruguay (2012).
  • Commercial Litigation – International Series (Argentine Chapter) jointly with María L. Marchini, Thomson Reuters, 2nd Edition, September 2015.

Victoria Rabasa, Associate

Estudio Beccar Varela

T +54 11 4379 6800
F +54 11 4379 6869
E vrabasa@ebv.com.ar
W www.ebv.com.ar

Professional qualifications. Argentina, Law Degree, Universidad del Salvador, honours, 2014

Areas of practice. General corporate.

Languages. Spanish and English


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