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 PLC multi-jurisdictional guide to dispute resolution. For a full list of jurisdictional Q&As visit www.practicallaw.com/dispute-mjg.
The main dispute resolution methods used to settle large commercial disputes are:
Court litigation is available for both civil and commercial claims and involves a fact-finding process. It comprises a thorough analysis of the dispute and mainly offers two types of proceedings: ordinary proceedings or accelerated proceedings (see Question 9).
Throughout this article, all references to procedural rules are references to the National Civil and Commercial Procedural Code (Procedural Code), which applies in all federal courts sitting in the provinces and in the City of Buenos Aires, as well as in the national courts sitting in the City of Buenos Aires (see Question 3).
Different limitation periods apply depending on the subject matter of the dispute:
Contract claims are generally subject to a ten-year limitation period, reduced to one year if the claim involves a contract for transport.
The limitation period to bring a claim in tort is two years.
Insurance law matters are subject to a one year limitation period.
Claims involving consumer rights are barred after three years.
Limitation periods generally run from the date on which the damage occurred or could reasonably have been discovered by the victim.
Argentina is a federal republic, comprising 23 provinces and a federal capital (the City of Buenos Aires). Justice is administered by federal and provincial courts. The distinction is drawn between federal and national courts in the City of Buenos Aires.
The provincial court system is organised over three tiers: lower courts, courts of appeal and the Provincial Supreme Court. Provincial courts deal with cases based either on local laws or on non-federal laws.
Within the territory of each province, there are also federal courts which have exclusive jurisdiction over:
Non-federal matters where one of the parties is the federal government.
two or more provinces;
a province and a resident of another province;
residents of different provinces;
a province (or one or more of its residents) and a foreign state or citizen.
Within the City of Buenos Aires there are two types of courts: federal courts and national courts. Federal courts deal with federal law matters while national courts deal with non-federal law matters.
Large commercial disputes in the City of Buenos Aires are generally heard either before the National Commercial Courts or the Federal Civil and Commercial Courts, depending on the federal or non-federal nature of the matter.
The National Commercial Courts have the following two-level structure:
26 first instance courts, each administered by one judge.
Court of Appeals, divided into six chambers, each administered by three judges.
The Federal Civil and Commercial Courts are divided into:
11 first instance courts, each administered by one judge.
Court of Appeals, divided into three chambers, each administered by three judges.
Intellectual property (IP) cases and maritime law cases in the City of Buenos Aires are heard before the Federal Civil and Commercial Courts.
It remains unclear which court is competent to review anti-trust matters. In the past, both the Federal Civil and Commercial Courts and the National Courts on Economic Crimes have decided on anti-trust matters. Although the Federal Supreme Court (Supreme Court) established in 2010 that jurisdiction lay with the National Courts on Economic Crimes, this decision was based on the specific circumstances of the case and does not seem to establish a precedent for all anti-trust cases.
Lawyers must be admitted to practice in the relevant jurisdiction in Argentina and be a member of the bar association in the jurisdiction where the case is being heard.
A person must have an Argentine law degree and be admitted to the bar association in the jurisdiction of the case, to conduct cases in Argentine courts.
Lawyers' fees are fixed by the courts and in principle are borne by the unsuccessful party (see Question 22). Courts calculate lawyers' fees mainly by taking into account the amount in dispute, but also the:
Type and complexity of the matter.
Quality and efficiency of the services rendered.
Speed with which the case may have been handled by the lawyers.
Legal, moral and economic importance that the case may have for the concerned client and for the economic situation of both parties to the case.
In principle, in pecuniary matters, lawyers are entitled to the following fees:
First instance proceedings: 11% to 20% of the amount in dispute if acting for the successful party and from 7% to 17% of the amount in dispute if acting for the unsuccessful party. Lawyers granted power of attorney by the party they represent are also entitled to an additional fee ranging from 30% to 40% of these amounts.
Appellate proceedings: from 25% to 35% of their first-instance fee.
Lawyers can also enter into conditional fee agreements. However, a conditional fee is limited to 40% of the amount awarded. Entering into a conditional fee agreement does not prevent a lawyer from also claiming his fees from his client's counterparty if the court decides that costs must be borne by that party. If a lawyer agrees on a conditional fee that is higher than 20% of the awarded amount, and the party represented by the lawyer must pay court costs, this obligation may also be extended to the lawyer, unless expressly agreed to the contrary.
If costs are not paid for any reason by the party ordered to do so by the court, each lawyer may require payment of their fees from the party that appointed the lawyer (some restrictions apply where the party has been granted legal aid).
Hourly rates and task-based billing arrangements are quite common amongst large or sophisticated law firms.
Litigation is funded by the parties, unless they are granted legal aid. It is uncommon for third parties to fund litigation.
Insurance policies covering solely legal costs and expenses are available. However, liability insurance covers, among other things, legal costs and expenses that the insured may incur.
In principle court proceedings are public. However, the court may disallow access to the court room to ensure confidentiality of the proceedings (for example, until a precautionary measure is enforced, or to protect children involved in the litigation).
The Procedural Code sets out rules regarding the parties' duty to co-operate and conduct litigation in good faith, but there are no specific requirements concerning pre-action conduct, other than the compulsory mediation process in the City of Buenos Aires.
If, in its response to the claim, the defendant admits the claim and it is established that the defendant gave no reason for the claimant to bring legal proceedings, the costs of the subsequent legal proceedings can be imposed on the claimant.
Argentine court procedure is mainly written. Ordinary proceedings have three stages in the first instance: introduction, evidence and judgment. The introductory stage begins with the filing of the complaint with the court.
The complaint must contain a thorough description of the factual circumstances that the claimant wishes to rely on, with a brief analysis of the applicable law and a clear statement of the relief sought. The statement must also describe the evidence required to be produced and must be accompanied by all the available documentary evidence.
Service of process is usually effected through a court bailiff, who attends the domicile/address of the defendant and leaves a copy of the formal court notice together with copies of the complaint and the accompanying documentary evidence. The bailiff keeps the original court notice, stating the date on which service of process was effected and the name of the person who received it, and then filing it with the court. Alternatively, service of process can be served through a notary public.
The defendant usually has 15 business days to respond to the complaint. However, this term is increased if the complaint is addressed to the federal government, or to a provincial or municipal government. The term may also be increased depending on the defendant's distance from the seat of the court.
The response to the complaint must include all preliminary objections or defences, as well as any counterclaim, and describe the evidence to be produced. The response must also be accompanied by all available documentary evidence.
The evidence stage begins with a judge-presided hearing where the parties are invited to settle the case. If the parties fail to settle, the judge determines the questions of fact which are relevant to the adjudication of the parties' claims and on which any available evidence will need to be produced. The parties are then able to raise any objections to the evidence that the other party intends to rely on. Following the hearing and having analysed the objections raised by the parties, the judge determines the admitted evidence to be produced at the second phase of the evidence stage.
The second phase of the evidence stage comprises the production of the admitted evidence. The length of this stage is determined by the judge but should not exceed 40 days unless evidence needs to be obtained outside Argentina. However, in practice the term is usually extended.
Once the evidence is produced, the parties are allowed full access to the court docket and the case file and can then present their closing arguments (which is optional). The court has 40 days from the parties' filing their closing arguments to render its judgment, although they normally require a longer term. Closing arguments are not admitted in accelerated proceedings.
If the case involves only questions of law (that is, there are no contested facts), the evidence stage of the proceedings will be dispensed with and the case will enter the judgment phase.
A first instance judgment must be notified to the parties, who can appeal to the competent Court of Appeals (see Question 20). A Court of Appeals judgment can be challenged before the Federal Supreme Court of Justice but only in a limited number of cases.
Accelerated proceedings are mainly provided for low-amount claims and certain constitutional expedited actions; they have shorter terms and more limited pleadings (in principle no preliminary objections are allowed and parties are not allowed to submit closing arguments at the end of the evidence stage).
A number of objections can be raised to achieve the dismissal of the case before a full trial. In principle, these objections should be decided by the court before dealing with the substance of the dispute. Some of the objections result in the dismissal of the case without prejudice while others lead to the case being dismissed with prejudice.
The preliminary objections that can be raised include (Procedural Code):
Lack of jurisdiction.
Lack of legal capacity (or authorisation).
An evident lack of a cause of action.
The existence of another pending claim between the parties, with the same subject matter and on the same grounds.
Deficiencies in the presentation of the claim.
Res judicata (that is, when there is a prior final ruling on the same dispute).
Prior settlement or waiver of the right by the claimant.
The defendant can apply for such an order not later than at the time of answering the complaint (see Question 9, Notice to the defendant and defence), when the claimant has no domicile or immovable property in Argentina. In this case, the claimant will be required to provide security for costs (arraigo) for the claim to continue. However, security is not required when:
The defendant files a counterclaim.
The application is not made within the applicable time limit.
There exists an applicable international convention dispensing with this requirement.
A court may order different measures to protect the status quo pending resolution of a dispute, for example:
Attachment of assets (see Question 13).
Seizure of assets.
A general prohibition on the disposal or encumbering of assets.
Provisional measures can be requested before, upon or after commencing proceedings. If they are requested before the commencement of the proceedings, the latter must be started within ten days after the date the provisional measure came into force. If the complaint is not submitted within that period, the provisional measure automatically lapses.
A provisional measure can be granted if the following requirements are met:
The court must be satisfied that the claimant's claim will, in principle, be admitted.
There must be a risk that if a provisional measure is not granted, the ultimate judgment may not grant effective relief because, for example, the defendant's assets may subsequently disappear.
Provisional measures are, as their name suggests, always temporary in nature and they may be revoked at any time if the circumstances prevailing upon their creation subsequently change.
Provisional measures are granted and enforced ex parte. They can be obtained without prior notice to the defendant and in urgent cases they can be obtained on the same day.
The courts can, in general, grant whatever provisional measure they consider is more likely to protect the rights in question, including mandatory injunctions.
Interim attachment orders are available in the same manner as other interim measures (see Question 12, Availability and grounds).
Interim attachments may be granted in support of substantive proceedings that are taking place in the courts in another jurisdiction. This is a matter for the court's discretion.
Some precautionary measures (for example, interim attachment orders) can create preferential rights or a lien in favour of the claimant.
The claimant is liable for damages caused as a result of the attachment, if it is established that the claimant abused or exceeded the right to obtain such a measure.
The party who obtains a provisional measure must provide countersecurity for the damage that the provisional measure may cause to its counterparty. The court determines the amount of the countersecurity, depending on the likelihood that the claimant's claim will be admitted at the end of the proceedings and other circumstances of the case. The court allows this deposit to be substituted by other types of security such as a bank guarantee, a performance bond or a lien over an asset. No security is required if the person requesting the provisional relief has been granted legal aid.
There are different types of measures that a court may take such as, for example, the appointment of a controller or auditor for a company, or a general prohibition on the disposal or encumbering of assets.
There are different remedies available at the full trial stage, including compensatory damages. In cases involving consumers' rights, punitive damages may be ordered.
The parties must produce all available documentary evidence on which they wish to rely and a list of the specifically identified documents the production of which they wish the court to order from their counterparty or from a third party. Judges may draw a negative inference, if a court's order to disclose is not complied with.
Additionally, court-appointed experts can request access to the parties' files and documents through the court. If such access is not facilitated by a party, the court may draw a negative inference.
Common law discovery of documents is alien to the Argentine legal system.
Under Argentine law certain professionals have a duty (and the right) to maintain professional secrecy (for example, lawyers, accountants and medical doctors, particularly psychiatrists). In addition, certain persons or entities are subject to the data protection duties. Banking secrecy and tax secrecy are recognised.
Protected documents and information can be subject to disclosure only upon court order.
The without prejudice principle is not officially recognised in Argentina.
In practice, non-disclosure issues rarely arise given the procedural rules governing documentary evidence and the limited scope of disclosure (see Question 16).
In principle, witnesses of fact give oral evidence. Oral testimony is received at one or more hearings. Witnesses must testify under oath and criminal sanctions may apply for perjury.
The party who proposes the witness can submit, in writing, a list of questions to the judge, who may amend them or ask additional questions. The parties can also orally propose questions at the hearing.
Witnesses of fact can be cross-examined. However, the judge has discretion in relation to the admissibility of the questions.
Expert witnesses are only appointed by the court at the parties' request. The parties, however, can appoint experts to attend all proceedings conducted by the court-appointed expert and produce a report together with the court-appointed expert or separately.
Court-appointed experts provide independent advice and answer the questions admitted by the courts. The parties can propose questions which may be amended by the courts.
Party-appointed experts act in the interests of the party who appointed them.
Once the court-appointed expert has produced his report, the parties can challenge it or require clarifications.
Experts' fees are fixed by the courts in accordance with the applicable regulations. Experts' fees are considered part of the legal costs, which in principle are paid by the unsuccessful party (see Question 22).
A first instance judgment can be appealed before the competent Court of Appeals. A Court of Appeals judgment can be challenged before the Federal Supreme Court of Justice (extraordinary appeal) but only in a limited number of cases.
The grounds for appeal vary depending on whether the appeal is unrestricted or restricted:
Unrestricted appeals. Unrestricted appeals are allowed only with respect to final judgments in ordinary proceedings. In unrestricted appeals, the parties may introduce, with certain limitations, new facts and pieces of evidence if certain requirements are met. However, this practice is rare.
Restricted appeals. Only restricted appeals are allowed against other than final decisions. In restricted appeals, no new facts or evidence is admitted.
For both types of appeal, an appeal must contain a specific and well-reasoned challenge against the disputed judgment holdings that the appellant considers legally wrong.
Evidence matters are not subject to appeal.
An application for leave to appeal must be filed with the court within five business days of the date the appellant is served with the decision (reduced to three business days in the case of accelerated proceedings). An application for leave to appeal a first instance decision must be filed with the first instance court that issued the decision, subject to challenge.
If the Court of Appeals grants leave to appeal, the appellant must submit the grounds for its appeal within ten business days of receiving the notice of the leave. Its counterparty then has ten business days to reply.
In relation to judgments of the Court of Appeals, the appeal must be filed with the Court of Appeal within ten business days of the date the appellant is served with the decision. The appellant must submit the grounds for its appeal with the appeal court. The appellant's counterparty, once served with the appeal, has ten business days to reply. If the Court of Appeals denies leave to appeal to the Supreme Court, the appellant can still file a direct appeal with the Supreme Court within five business days of the date the appellant is served with the refusal decision. Thus, the Supreme Court has the ultimate decision-making power in relation to the formal admissibility of the appeal.
Several class action bills have been pending before the Argentine National Congress since the ruling issued by the Supreme Court in February 2009 in the re Halabi, Ernesto c/ P.E.N. - Ley 25.873 - Dto. 1563/04 s/ Amparo Ley 16.986” (Fallos 332:111). This decision established the admissibility of class actions under Argentine law and provided the guidelines for this kind of claim.
Prior to re Halabi, an amendment to the Consumer Protection Law was enacted in 2008, entitling non-governmental organisations (NGOs) and consumer associations to file collective actions. This law provides for an opt-out system and allows the representative associations to litigate without having to bear the court tax (and, according to some case law, other legal expenses).
Generally the unsuccessful party pays the successful party's legal costs. However, the court may totally or partially derogate from this principle if it finds there are sufficient grounds to do so.
The court-awarded counsel and expert fees are calculated on the basis of the applicable scale of fees that is mainly based on the amount in dispute (see Question 5). In principle, first instance court costs must not exceed 25% of the amount in dispute. In relation to counsel and experts fees, the court must consider the complexity and importance of the case when determining the recoverable amount.
Interest on costs accrues from the date of the filing of the complaint. In addition, compensatory interest is due if costs are not paid on time.
Interest rate depends on the jurisdiction of the case.
Once a judgment becomes final, the interested party can request its mandatory enforcement.
If the judgment is not a money judgment, either of the parties can submit to the court a calculation of the damages, which may be contested by the counterparty. The court then determines this issue. Where calculation is very complex, the matter may be decided by the expert arbitrators or, if parties so agree, by the arbitrators as amiables compositeurs (that is, the arbitrators are empowered to decide the dispute according to the legal principles they believe to be just, without being limited to any particular national law).
Alternatively, if the judgment is not a money judgment the court can order specific performance or issue an injunction to prevent someone from doing something.
If the judgment is a money judgment (or the damages calculation has been admitted by the court), the court orders the attachment of the debtor's assets and summons the debtor to file any defence available. The only admissible defences are:
The invalidity of the judgment.
Expiration of the limitation period (ten years).
Reduction of the debt amount, extension of the term for payment, or release from a debt.
If the debtor does not file a defence, or once this matter has been resolved, the court may order the sale of the attached assets through a public auction.
Generally, the parties to an international agreement can freely choose the applicable law as long as there exists some connection with the system chosen. An agreement is generally considered to be international when it has certain elements (for example, the place of performance, the place of execution or the domicile of the parties) that connect the transaction to more than one legal system.
The choice of governing law will be valid to the extent that it does not violate Argentine public policy. Public policy provisions typically relate to criminal, tax, labour and bankruptcy laws, as well as matters concerning religion, tolerance and morality.
In addition, if an act were invalid under a foreign law, an Argentine court could apply Argentine law if it were more favourable to the validity of the act. This is known as the favor negotti or favour contractus theory. For example, if a will executed in France by a person domiciled in Argentina were invalid under French laws but valid under Argentine laws, the will could be considered valid by an Argentinean court.
The following matters are governed exclusively by Argentine law:
Rights associated with real estate.
The ability to acquire real estate.
The formal requirements in respect of the legal acts involving real estate.
Movable property permanently located in Argentina.
In principle, Argentine courts respect the choice of foreign jurisdiction in a contract provided that the transaction involves pecuniary rights and, in the case of a foreign jurisdiction, the matter is of an international nature (see Question 25). Granting jurisdiction to a foreign arbitral tribunal is equally recognised by the domestic courts.
Argentine courts have exclusive jurisdiction to hear all insolvency proceedings relating to debtors domiciled in Argentina. In addition, the choice of jurisdiction may not be recognised in consumer and labour matters.
Argentina is party to the:
Montevideo Treaties on Procedural Law of 1889 and 1940.
Inter-American Specialized Conference on Private International Law (CIDIP).
HCCH Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters 1965 (Hague Service Convention).
If no international convention is applicable, a rogatory letter must be issued by the foreign court requiring the aid of an Argentine judge to conduct service of process under Argentine procedural rules.
Argentina is party to the Montevideo Convention on International Procedural Law, the CIDIP, and the HCCH Convention on the Taking of Evidence Abroad in Civil or Commercial Matters 1970 (Hague Evidence Convention).
If no international convention is applicable, a rogatory letter must be issued by the foreign court requiring the aid of an Argentine judge. The proposed questionnaire must be translated into Spanish and legalised if necessary. The deposition will then be taken pursuant to Argentine rules of procedure.
In principle, no distinction is made between foreign and domestic judgments in relation to their enforceability.
Where an international treaty applies, it will prevail over the domestic procedural rules. Countries with which Argentina has concluded treaties in relation to the enforcement of judgments include Italy, France and Brazil. In addition, Argentina is party to multilateral treaties such as the Montevideo Treaties on Procedural Law of 1889 and 1940 and the Inter-American Convention on Extraterritorial Validity of Foreign Judgments and Arbitral Awards of 1979. Judgments of the countries that are party to these treaties are enforceable in Argentina.
In the absence of an applicable treaty, the Procedural Code applies. Under federal rules of procedure, Argentine courts generally recognise and enforce a final foreign judgment without considering the merits of the case. The foreign judgment must meet the following requirements:
The judgment must:
be final in the jurisdiction where it was rendered;
have been issued by a competent court in accordance with Argentine conflict of laws principles; and
have resulted from a personal action or an in rem action concerning movable property; if the judgment was issued in an in rem action, the movable property must have been transferred to Argentina during or after the foreign action.
The defendant must have been personally served with the summons and given an opportunity to defend against the foreign action in accordance with the due process principles.
The judgment must be valid in the jurisdiction where it was rendered and its authenticity must be established according to the requirements of Argentine law.
The judgment must not violate any principle of Argentine public policy (see Question 25).
The judgment must not contradict a prior or simultaneous judgment issued by an Argentine court.
Reciprocity is not required for an Argentine court to recognise a foreign judgment. Precautionary measures may be granted at the commencement of the proceedings or thereafter.
Argentina has not concluded any treaty with the US or the UK in relation to the enforcement of judgments. Therefore, UK and US court judgments can be enforced according to the rules set out in the Procedural Code.
The main ADR methods used in Argentina to settle large commercial disputes are arbitration and mediation.
Arbitration is a usual method to solve large contractual disputes and corporate matters. All disputes can be resolved through arbitration except those which cannot be subject to a party settlement (for example, criminal actions, family law issues and inheritance matters). Parties can agree on arbitration either before or after a dispute has arisen. Notably some provincial procedural codes do not allow the use of arbitration to resolve local or non-federal matters.
The Procedural Code sets out basic rules on arbitration. However, parties generally derogate from them by agreeing on the application of institutional or ad hoc arbitration rules.
Argentina became a party to the UN Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958 (New York Convention) in 1988, subject to the reciprocity and commercial reservations.
Following a significant amendment of the compulsory mediation process in May 2010, mediation is compulsory in the City of Buenos Aires for most disputes of an economic nature, as a prerequisite for having access to courts. Mediation purports to settle disputes out of court by means of a direct communication between the parties, assisted by a mediator. Mediators are appointed from the list of professional mediators.
Certain mediation proceedings are subject to separate regulation. For example, under the consumer protection legislation, mediation proceedings are held before the consumer protection agencies and are free of charge.
There are certain proceedings not subject to the compulsory mediation requirements, such us provisional measures requests or insolvency and bankruptcy proceedings. In executory proceedings, the claimant can choose whether to request prior mediation or not.
One or more hearings are held where the mediator prompts the parties to reach a mutually beneficial settlement. Parties must attend the hearings personally and must also be assisted by lawyers admitted to practice in the relevant jurisdiction.
A settlement in mediation has res judicata effect. If no agreement is reached, the mediator will formally close the mediation proceedings and the claimant can then pursue its case before the courts.
Mediators are entitled to a fee, which is calculated by reference to the amount in dispute.
See also Question 35.
Mediation is compulsory in the City of Buenos Aires for most pecuniary disputes (see Question 30, Mediation).
In addition (Procedural Code):
The judge can invite the parties to participate in conciliation proceedings at any time during the judicial process.
Controversies in relation to the matters in dispute can be submitted to arbitrators acting as amicable compounders.
The submission of evidence and subsequent disclosure in arbitration proceedings depends on the applicable arbitration rules chosen by the parties.
Mediation does not usually involve the production of evidence, other than some supporting documents that the parties can decline to produce. Generally, mediation is confidential unless an express waiver is issued by the parties.
Arbitration costs depend on the arbitration rules chosen by the parties.
Mediation costs include mainly the mediator's fees (see Question 30). If the parties reach an agreement, it is customary to agree on the amount of the claimant's attorney fees, which are typically paid by the defendant.
The main organisations that provide ADR services are:
Currently all reform proposals relate to the ADR methods. Two bills concerning arbitration are pending in Congress. One is aimed at modifying the Procedural Code and creating a specific domestic and international arbitration framework. The other incorporates the UNCITRAL Model Law on International Commercial Arbitration 1985 (UNCITRAL Model Arbitration Law) into Argentine law.
In addition, environmental and criminal mediation bills are pending in Congress.
At this point, it cannot be estimated with a sufficient degree of certainty when these bills are likely to become law.
Qualified. Argentina, 1991
Areas of practice. Complex litigation; dispute resolution and arbitration; product liability; insurance and reinsurance; environment; life sciences.
Qualified. Argentina, 1996
Areas of practice. Litigation; dispute resolution and arbitration; life sciences.
Qualified. New York (LLM), 2003; Argentina, 1999
Areas of practice. Litigation; dispute resolution and arbitration; maritime law; insurance and reinsurance; life sciences.