following each other's lead: law reform in latin america

8/11/2019 Following Each Other's Lead: Law Reform in Latin America

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Following EachOthers LeadLaw Reform in Latin America

AUGUST 2014


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U.S. Chamber Institute for Legal Reform, August 2014. All rights reserved.

This publication, or part thereof, may not be reproduced in any form without the written permission of the U.S. Chamber Institute for Legal Reform.

Forward requests for permission to reprint to: Reprint Permission Office, U.S. Chamber Institute for Legal Reform, 1615 H Street, N.W.,

Washington, D.C. 20062-2000 (202.463.5724).


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1 Following Each Others Lead

Introduction

Legal systems are dynamic, continually evolving, and adapting tothe changing norms of society. These adaptations can be found

in all areas of law, all over the world. Revisions to the law often

follow regional trends. This is certainly true in Latin America.

In the past, countries in the region may have looked outside the

region for ideas or guidance when developing their own laws,

just as the U.S. once looked to Britain. But today, Latin Americaappears to be evolving independently as a region. Latin American

countries look to each other; they follow each others lead. When

the law evolves in one country, similar changes will likely surface

elsewhere. As a result, when change comes to Latin American

law, it comes regionally.

In Latin America, as in other parts ofthe world, the case for change is oftenpositioned as a need for access tojustice. Much of the doctrine of legalscholars in Latin America is focused onproviding consumers with better accessto the legal system. Consumers are seen

as disadvantaged compared to businessesor the government when it comes to legalmatters. Legal doctrine often refers to theweaker party or the stronger party, and theneed to take perceived advantages fromthe stronger party and give them to theweaker party.


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2U.S. Chamber Institute for Legal Reform

In some jurisdictions, the need for greateraccess to justice is probably a fact. Thereis a strong argument in some countriesthat class actions, for example, wouldimprove access to justice. In those places,it is simply not credible to oppose thecreation of a class action mechanism. Butit is fair and appropriate to oppose classaction systems that change the meaning ofjustice under the guise of creating accessto it. If a claim is not viable individually, itshould not become viable simply becauseit is joined with many other similar claims.New procedural rules should not tilt theplaying field so far that defendants have noopportunity to defend themselves with factsand law. That is where debate over legal

reforms becomes important.

This paper reviews some of the significanttrends in Latin America that couldsignificantly affect potential defendants.1These trends should not be overlooked.When the opportunity arises, the businesssector should participate in the discussion,not to be seen as obstructing developmentsin law, but to ensure that a level playingfield is maintained for both plaintiffs anddefendants. Only by making its viewsknown can unintended consequencesbe avoided. After all, access to justiceshould mean justice for all parties and fairresolution of legal disputes, without takingsides for plaintiffs or defendants.

Latin American countries look to each other; they followeach others lead. When the law evolves in one country, similarchanges will likely surface elsewhere. As a result, when change

comes to Latin American law, it comes regionally.


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Issues and Trends in Latin American Law

Several trends in Latin American law and procedure meritattention. As in the rest of the world, class action rules are

being introduced or revised throughout the region. There are

also additional procedures intended to improve access to, or the

efficiency of, the legal system that have no clear counterpart in

U.S. law, but that are important in Latin America. Beyond that,

broad revisions to existing procedural rulesentirely new codesof civil procedureare being enacted. And finally, the substantive

law is also advancing in ways that could affect manufacturers in

the region for years to come.

Class Actions Are a

Reality in the RegionDuring the 20th century, only a fewcountries allowed class actions as a meansto resolve claims for damages. Those thatdid were generally common law countries,such as the U.S., Canada, and Australia. Butin recent years, class actions have becomethe main topic of procedural law reform.Many civil law countries are adaptingcommon law class action procedures to

fit their own systems; Latin America is noexception.2 To understand the concept of aclass action in Latin America, it is essentialto understand the structure of the civil lawmodel for collective redress.

THE CONCEPT OF CLASS ACTIONS

IN LATIN AMERICA

Scholars in Latin America, and elsewhere,have divided the concept of a class actioninto distinct categories based on the rightsor interests involved and on the appropriateremedies. Usually, they are divided intothree categories, but more recently someLatin American scholars have reducedthat to twoa welcome simplificationthat will suffice for this discussion.3Thefirst category includes diffuse and

collective rights, which are indivisiblein nature, meaning that the remedy forone person would also be the remedy forall. Environmental claims, for example,would be diffuse or collective claims. Ifthe solution is to abate the pollution, thatsolution would be the same whether it is


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for an individual or for all members of theaffected group. Claims seeking to preventdeceptive advertising would likewise bediffuse or collective. In these cases, there islittle need to provide a precise definition of

the class or specifically identify its members.The rights belong to society as a whole, orto an affected subgroup. The remedy forthese cases is generally injunctive. They donot (or at least should not) seek individualdamages for class members.

The second category is known ashomogeneous individual rights cases.Those are divisible, meaning that each classmember has an individual claim that could

be addressed separately. They are alsohomogeneous, meaning they are similarenough that they could also be addressedcollectively. These are the more traditionalclass actionsnumerous claims all basedon the same basic set of allegations andlaws against the same defendant(s). Multipleclaims arising from a single event, such as aplane crash, would likely be homogeneousindividual claims. They can be addressed

together, but each plaintiff could also file aseparate individual claim for damages.

THE BRAZILIAN MODEL

The development of a civil law class actionsystem in Latin America began with thecreation of Public Civil Action Law in Brazilin 1985.4 This law provides a mechanism toresolve indivisible diffuse or collectiveclaims, and provides for injunctive awardsintended to change or correct the behavior

of the defendant. Public Civil Actions arenot intended for monetary damages toindividual members of any defined class.

The procedure is unlike a class action inthe U.S., but it did not develop in completeisolation from the U.S. experience. TheBrazilians were inspired by Italian scholars,including Mauro Capelletti5and others,

who had been studying the U.S. legalsystem and the way it had been used asa mechanism to change the behavior ofgovernment or private citizens, insteadof for monetary damages.6An Americanscholar, Abram Chayes,7had written aboutthe new model of civil litigation in theU.S. and called it Public Civil Litigation.This new model included cases in the1960s and 70s involving such matters as

school desegregation, prisoners rights, andenvironmental claims.

The Italians liked the concept and wantedto create something similar in Europe. Butthere were elements of the U.S. systemthey didnt like. In the U.S., successfulpublic interest cases usually involved anactivist judge who would take hold of thecase, suggest solutions, monitor progress,and generally drive the case forward. While

that was accepted in the U.S., the Italiansbelieved that the activist role should beplayed by a strong publicly-oriented group,not the court itself. They wanted to givestanding to some organized body, so thatthe plaintiff and not the court would be thedriving force. For a time, the Italians focusedon the Public Ministry (roughly akin to theAttorney Generals office) as an appropriatebody to empower with a new legal tool for

public interest in Europe.8


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At the same time, Brazil was coming outof 20 years of military dictatorship andwas focused on creating an improved legalsystem to regain public trust. There weremany scholars in Brazil eager to find a new

system to protect public interests. Brazilalso had a Public Ministry made up ofintelligent, hard-working, ambitious lawyerswho were interested in public civil litigation.

Following the writings of the Italianscholars, Brazil enacted a Public CivilAction Law, which gave the Public Ministryauthority to bring claims to protect diffuseand collective rights. A few years later,provisions were added to a new Brazilian

constitution that provided further autonomyand independence to the Public Ministry.The Public Ministry became Brazils keepersof the public trust. The Public Civil ActionLaw also gives standing to consumerassociations and other entities to bringpublic civil actions. Notably, the Brazilianmodel does not allow affected individuals(class members) to file collective claims.

The Public Civil Action Law also givesthe Public Ministry broad authority toinvestigate claims and enter into bindingsettlements, in some ways like the powersof attorneys general in the U.S. to issueCivil Investigative Demands under stateconsumer protection laws. The PublicMinistry is very active in the Brazilian legalsystem. Over 90% of public civil actions arefiled by the Public Ministry.9

Later, Brazil developed a system tohandle homogeneous individual rightscases. It was not a simple task. Theycould not simply add Rule 23 of the U.S.Federal Rules of Civil Procedurethecourt rule which defines class actionpractice and establishes the criteria for

class treatment (including, for example,numerosity, commonality, predominance,and superiority)10to their procedural rules.Issues of standing, constitutionality ofopt-out classes, and the whole question

of certification had to be adapted to fitthe Brazilian legal system. The resolutioncame in 1990 with the enactment of theConsumer Protection Law, which containeda chapter on class actions.11The lawprovides for class actions for damages.Unlike the U.S. system, there is no upfrontcertification, or even a class definition.There is no requirement that the courtdecide whether the claim is appropriate for

class treatment (i.e., whether the individualclaims are truly homogeneous).

Standing is given to the Public Ministryand consumer associations, and othergovernment entities. Class members donot have standing and generally are notinvolved in the initial case. In the first phase,the court decides liability in the abstract,without specifying a total damage award.The court also provides a class definition

in the phase-one decision. The secondphase comes if liability is established. Atthat point, individual class members bringseparate individual liquidation claims todetermine their individual damages andobtain individual recovery.

The system has some good aspects fordefendants. For example, in the first phase,there is no aggregate damage awardnorequirement for a single, massive judgment

that might cripple the defendant financially.However, there is a bill currently pendingin the Senate that could allow a courtto determine the minimum amount ofdamages for each class member during theliability phase.12


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Nevertheless, there are potential issueswith the process. First is the phase-onefinding of liability. This concept of liabilityincludes more than just a finding of fault(e.g., negligence, intentional conduct, etc.)or product defect in strict product liabilitycases. To establish liability the court mustalso find causation and damages. In theBrazilian system, causation and damages arenot part of the first phase of a class action.At best, then, all that can really be resolvedin phase-one is the question of fault/defect.The remaining elements of liability are notaddressed until the second phase.

Second, the process calls into questionwhether the system is truly efficient. If

there is a finding of liability, then all classmembers need to proceed with individualclaims for damages. Courts still mustproceed with individual trials for each classmember to resolve the dispute. The desireis to have the liquidation claims be simplematters of establishing the individualdamages, but if the case involves significantquestions of causation, or even questionsof whether the plaintiff is, in fact, a classmember, the liquidation cases could befull-on trials with lots of evidence and manyissues to be resolved. Beyond that, classmembers can file their liquidation claimsin courts that had no part in the phase-onetrial, and therefore have no record evidenceupon which to base a decision in the phase-

two trial. All they have is the decisionfrom another court finding liabilitywhich may or may not provide guidanceon the particular issues presented by theindividual class member. This is of particularconcern when threshold issues such aspredominance, commonality, and superioritywere never addressed in phase-one.

This discussion highlights the valueof certification. The key to successfuladjudication of a class action is thedetermination that the case can and shouldbe decided collectively. Without thatquestion answered, the entire exercisecould be a waste of time. Brazil wouldnot need to use a U.S.-style certification

procedure, but it could be an element ofthe initial admissibility decision civil courtsmake at the outset of any case. Courtscould, when determining the admissibilityof a class action, be required to determineif the claims were indeed homogeneous.And, if a party challenges the homogeneityof the class, courts could decide that issueat the beginning of the case to avoid therisk of proceeding with an improper classaction.

Homogeneity includes concepts such aspredominance, commonality, and typicality.One of the most respected Brazilianexperts on procedural law, Ada PellegriniGrinover, has written that the termhomogeneity should be read to include the

The key to successful adjudication of a class action isthe determination that the case can and should be decidedcollectively. Without that question being answered, the entire

exercise could be a waste of time.


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concept of predominance, and when theissues of fact or law do not predominateover individual issues, the case should notproceed collectively.13But as it stands, theBrazilian system has no procedural device

under which courts are required make thatthreshold determination.

Finally, one of the positive elements ofthe class action system in the U.S. is itsservice as a tool for settling mass claims.The parties can see the size and scope ofthe class and estimate the total damages.In the Brazilian system, with no classdefinition and no class members presentin the case, there is very little opportunity

to settle the case collectively. Defendantsmust try the whole case, phase-one andthe myriad phase-two cases, to resolve thedispute. And, unlike in the U.S., settlementsof homogeneous individual rights classactions are rare in Brazil.

In any event, with the Public Civil ActionLaw and the class action mechanism in theConsumer Protection Code, Brazil created amodel for class actions in civil jurisdictionsthat serves as the starting point for therest of the region. Two model class actioncodes, based on adaptations of the Brazilianexperience, have been created to serve asguides for future class action mechanisms inthe region.14 These model codes tend to bethe starting point for legislation introducedelsewhere in the region.

The Expansion of ClassActions in Latin AmericaOver time, class actions became popularin Latin America. Legislation allowing class

actions for damages has been enacted inChile, Colombia, and Mexico. De factoclassactions exist in other countries, such asArgentina and Costa Rica. Presently, thereis legislation pending in Argentina, Brazil,Costa Rica, Ecuador, and Mexico to createa new class action system or modify theexisting legislation. While they have notalways followed the Brazilian procedureexactly, the starting point for this legislation

often includes some discussion of theBrazilian models.

CHILE

ARGENTINAURUGUAY

BRAZIL

PERU

BOLIVIA

PARAGUAY

ECUADOR

MEXICO

COLOMBIA

VENEZUELAGUYANA

PANAMA

COSTARICA

NICARAGUA

HONDURAS

ELSALVADOR

GUATEMALA

BELIZE

SURINAME

GUYANE

CLASS ACTIONS IN

CENTRAL & SOUTH AMERICA

Latin Americancountries allowingsome form ofclass action claim

Latin American countrieswith pending classactions bills

Latin American countriesallowing some formof class action claim& with pendingclass action bills


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HOW THE SWINE FLU INFLUENCED

THE MEXICAN CLASS ACTIONSerious proposals for the creation of classactions in Mexico began to appear in 2007,after the Supreme Court announced an

interest in the procedure. Early proposalswere based on Brazilian models withstanding given to consumer associationsand the Consumer Protection Agency, andno form of certification.

Some of the bills proposed in Mexico, andin other countries, provided for additionalcompensation beyond the resolution of theclaims of class memberspunitive damages, financial incentives

for associations who file successful classclaims, and substantial contingency feesfor lawyers. These provisions merit specialattention because they are precisely theelements that many believe led to theexpansive litigation climate in the U.S. Thisis especially true when class actions areexcluded from the traditional civil law loserpays rule, meaning there is no risk forbringing an unsuccessful class action. They

create the potential for speculative litigationand abuse of the system.

In 2009, one of these bills seemed poisedto pass in the Federal District (MexicoCity).15A few members of private industrytried to revise some of the provisions in thebill that concerned them, but there was little

organized support for the effort, and thepolitics of Mexico Citys legislature madeprogress difficult. Ultimately, on the last dayof the legislative term, the Mexico City billwas to be voted into law. In a strange turn ofevents, the Swine Flu broke out in MexicoCity, and the session was cancelled due topublic health concerns. The legislature brokefor the season, and the bill never passed.

Following that, members of the federal

legislature pressed forward with a federalclass action model for Mexico. Privateinterests took exception to the priorMexico City proposal, as did the FederalGovernment. The debate over the form andsubstance of an appropriate class action lawcontinued for another year. Ultimately, a billintroduced by Senator Jesus Murillo Karam,who had previously led a Senate task forceon class actions, became the leading bill.16

While it was pending, the bill underwentmultiple revisions as a result of negotiationsamong Senator Murillo, consumeradvocates, and representatives of thebusiness community.17After a compromisewas reached, a revised Murillo bill becamelaw, effective on March 1, 2012.18


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The new Mexican class action procedurehas a certification phase, but otherwisecontains many elements of the Braziliansystem. Homogeneous individual rightsclass actions are said to be opt-in, but the

period for opting-in extends for 18 monthsafter the first phase decision on liabilitymeaning that class members can wait tosee whether the case is successful beforedeciding whether to join.

As soon as the bill became law, legislationwas introduced to eliminate some of itssafeguards.19So far, none of those billshave passed.

ARGENTINAS CLASS ACTIONS

WITHOUT PROCEDURAL RULESClass actions are also a topic of interest inArgentina, where numerous class actionmodels have been introduced before thenational legislature in recent years, and fiveremain pending today. In Argentina, the rightto class actions is specifically set forth inthe 1994 constitution and in the consumerprotection law, but there is no procedure inplace for handling class actions. The Supreme

Court issued decisions in 200920and 201321setting out some basic principles for theadmissibility of a class claim and calling uponthe legislature to enact a complete set of

procedural rules. But to date, no specificrules exist. Courts are forced to improvisewhen handling class claims.

[I]n the new Mexican class actionclass members can waitto see whether the case is successful before deciding whetherto join.

The Argentine Supreme Court:

Nonetheless, in our legal system there

is no regulation governing the eective

exercise of actions referred to as class

actions in the specic area that is the

object of this case. This is of great

importance because there should be

a law setting forth when a plurality

of individuals exists to carry out such

actions, how a homogeneous class is

dened, whether standing correspondsexclusively to a class member or to

public agencies and associations, what

procedures apply, and the eects of

the nal judgment and how to execute

that judgment. Faced with this lack

of regulation, which, by the way,

constitutes a delay by the legislature

that must be resolved as soon as

possible to facilitate the access to justice

guaranteed by our Supreme Law, we

must point out that the constitutionalprovision is clearly operative and

judges must implement it.


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As it happens, the consumer law, whichallows class actions, also instructs courts touse the most expedited procedure availablewhen adjudicating any consumer rightsclaim. There is in Argentina a sumarsimo

(super fast-track) process available to mostcourts.22There have been instances wherecourts, faced with a class action underthe consumer law, have applied the superfast-track process.23In these cases, thedefendant has five days from service ofthe complaint to file a complete defense,including all evidence and witnesses thatwill be called to testify. There are otherlimitations on a defendants ability to

present evidence. Clearly, this presentsa problem for defendants. Plaintiffs haveall the time they need to prepare the caseand their evidence, while defendants havejust five days to respond. There is a billbefore the legislature that would changethe consumer law to exclude class actionsfrom sumarsimoproceedings, but thepotential progress of that bill is unknown.24Regardless, as the Argentine Supreme

Court has stated, Argentina still needsprocedural rules for class actions.25

CHILES RELAXATION OF

CLASS ACTION PROCEDURESChile enacted a class action procedurein 2004.26Although the original law mayhave been initially inspired by the Brazilianexperience, Chiles law includes severalprocedural elements that resemble theU.S. system. It has a certification procedure

with a right to an interlocutory appealof a certification decision. The originalcertification process allowed for theproduction of evidence and had four criteriapredominance, commonality, numerosity,and superiority.

By 2008, approximately 40 class actionshad been filed, most of which weredismissed at the certification stage. Onlyone has reached a decision by the trialcourt, and that case remains on appeal.27

The case involves allegations of fraud byretail outlets in connection with credit cardrates, and it has drawn attention to the classaction procedure as a means of consumerredress. But the overall slowness of classactions drew criticism. As a result, thelegislature revised the class action law in2011 to shorten the certification phase byeliminating the production of evidence andtwo certification criterianumerosity and

superiority.28

Accordingly, a class actioncan have as few as a handful of claimants,and they need not demonstrate that aclass action device is superior to individuallawsuits as a means to adjudicate the claimsin the case. The new law also eliminates thestay of proceedings pending an appeal of acertification order.

The Chilean experience may show thatthe certification process defined in the

U.S. rule is not perfectly suited to civillaw jurisdictions. But courts in Chile dididentify cases that were not suited forcollective adjudication. Thus, while the U.S.procedure may not fit exactly into otherlegal systems, some upfront considerationof the propriety of proceeding with a classclaim should be maintained to prevent awaste of judicial resources.


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THE COSTA RICAN CLASS ACTION DILEMMAA new Civil Procedure Code bill wasintroduced in the Costa Rican Congress inNovember 2011.29It included a chapter onclass actions with several features that could

lead to abuse of the system. For example, thebill granted standing without a certificationphase to any individual or entity to file diffuserights class actions, to organizations to filecollective actions, and to any class memberto file homogeneous individual rights classactions; it allowed for monetary and injunctiverelief in all types of claims; and it allowedcourts to grant financial incentives in favor ofnonprofit plaintiff organizations that prevail

in any type of collective action in addition toawarding them costs.

Following coordinated efforts by businessleaders and legal associations, severalamendments were introduced. In its presentform, the bill requires plaintiffs to providean objective class definition in their initialpleading; allows parties to request a hearingon class certification (in addition to allowingthe judge to do so in the absence of such

a request); limits damages in diffuse rightscollective actions to injunctive relief; and nolonger includes potential financial rewardsfor associations that bring collective actions.

The bill passed a first reading by the plenaryin July 2013 but has not yet been put to asecond and final reading. The class actionchapter was opposed by the ExecutiveBranch and some business interests. InFebruary 2014, the Congress approved

a motion to send the bill back to thelegislatures Legal Affairs Commission fora second look at the class actions chapter,i.e., to delete it from the bill. As of the dateof this writing, the Commission has not yetreleased a revised text of the bill.

The dilemma lies in this: If the CivilProcedure Code bill passes with the classaction chapter, then Costa Rica will have areasonably balanced procedure. If the billpasses without the class action chapter, the

process will start over. A new governmenthas been elected, which presumably willnot oppose class actions, and there areother proposals on the table now, includingone in a Consumer Protection Code bill,that present issues similar to those in theoriginal class action chapter in the CivilProcedure Code bill. At this point, it is up tothe Legal Affairs Commission to either pressahead with the current class action chapter

or leave the matter for future legislation.CLASS ACTIONS BILLS

IN OTHER JURISDICTIONS

Class action bills are also proceedingelsewhere. In Ecuador, they have beenintroduced by way of amendments to theconsumer protection laws. In Mexico, twobills were introduced in 2013 to amend thecurrent class actions procedures by, amongother provisions, reducing the number of

individuals necessary to form a collectiveor eliminating the numerosity requirementaltogether; shortening the evidentiaryphase; broadening standing; and removingsubject matter requirements. As notedabove, Brazil is not standing still. Thereare several bills in the national legislatureseeking to modify the current class actionprocedure by, for example, broadening theterritorial scope of class actions rulings

to essentially allow for nationwide classactions; granting standing to politicalparties; allowing the judge to shift theburden of proof at any time before thedecision; and allowing plaintiffs to modifythe cause of action at any time before thefinal decision.


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Special Constitutional Actionsin Latin AmericaConstitutions in Latin American countriesusually provide a long list of specifically

enumerated rights for the people. Forexample, they often include rights toeducation, health, a clean environment,and full information on consumer goodsand services.30Unlike the U.S., wherethe government cannot infringe uponconstitutional rights, governments inLatin America have a constitutional dutyto provide them. They are enforceable,affirmative rights.31Furthermore, in most

countries, rights provided in ratified treatieshold a status equal to, or even above,the constitution. Thus, rights contained intreaties, such as the American Conventionon Human Rights, are also consideredto be at least on the same level asthose contained in the constitutions.32A failure to warn claim, for example,could be characterized as a violation of aconstitutional right to consumer information.More and more, constitutional rights maketheir way into private litigation.

There are procedures throughout theregion intended to provide a quick and easyresolution for constitutional challenges.While these processes serve an importantrole in Latin American societies, they havetended to expand into tools for civil litigantsto use against private parties. And becausethey are simple and quick, they are often the

process of choice when available.

THE AMPARO:MEXICOS CREATION

The oldest procedure for protection ofconstitutional rights in Latin America isknown as the Amparo(which translates,roughly, as protection in English).

The modern Amparowas developed inMexico in the 1840s as a means to providejudicial oversight of the constitutionality oflegislation, executive actions, and judicialapplication of law. It was inspired by theU.S. Supreme Court decision in Marburyv. Madison33which gave federal courtsthe authority to void acts of Congress thatconflict with the Constitution.34While theinspiration may have come from U.S. law,

the practice in Mexico is totally different.The Mexican Amparois a unique andcomplex institution that has becomean important tool for both plaintiffs anddefendants in civil matters, far beyond itsoriginal purpose.

Plaintiffs use the Amparoas an adjunctto civil litigation, a means of obtaininga legal decision supporting their claimwithout litigating against the real target

of their claim. If a family wants to stopa construction project near their home,they can file an Amparochallenging theissuance of the construction permit in thefirst place. This is a claim solely against thegovernment, using an abbreviated process,seeking a decision that the constructionviolated a constitutional rightfor example,to a clean environment. If the Amparo

Unlike the U.S., where the government cannot infringe uponconstitutional rights, governments in Latin America have aconstitutional duty to provide them.


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succeeds, the permit will be revoked andthe family will have a court ruling findingthat the construction project caused themdamagewhich may be useful in a separatecivil action for damages against the builder.The builder can participate in the Amparoaction as an interested party but is nottechnically a party to the claim.

Both plaintiffs and defendants can alsouse the judicial Amparoas a sort of writ ofmandamus, challenging unfavorable rulingsof courts in civil cases. They file a separateclaim against the civil court, alleging the

decision in private litigation violated theirconstitutional rightssay, for example,equal protection or due process. This opensa second front in the civil litigation. TheAmparopractice is now integrated into thelegal strategies of Mexican lawyers.

The first decision by the Supreme Court ofMexico interpreting the new class action lawcame by way of the Amparo. Direct Amparono. 28/2013 was a constitutional challenge

to the dismissal of a class action filed beforethe district court in Sinaloa. The SupremeCourt of Mexico accepted the Amparocase in order to determine the legality ofdismissing a homogeneous individual rightsclass action before the certification phase.The Courts decision, issued on December

4, 2013, concluded that the trial court hadprematurely and improperly dismissedthe claim in violation of the fundamentalright of access to justice. In reaching thatconclusion, however, the Court engaged ina discussion about the value and purposeof the certification phase in the class actionlaw. Curiously, this discussion about thenew class action law and how it operatesarose by way of the Amparoand not a directappeal. This demonstrates how the Amparohas become a vehicle for airing issues aboutlaw under the guise of an argument foraccess to justice far broader than initially

contemplated.

REGIONAL EXPANSION OF THE AMPARO

With the success of the Amparoin Mexico,other countries in the region began adoptingtheir own versionssome using the originallabel, Amparo, others referring to it as aTutela (Guardianship). All countriesin the region have some form of Amparo,but the procedures and jurisdictional rulesfor an Amparoor Tutelavary widely.35Insome countries, as in Mexico, an Amparocan be filed in a trial court, with proceduralrules provided for by statute, and appealsto higher courts from Amparodecisions. Inothers, only the Constitutional Chamber ofthe Supreme Court may decide an Amparo.

Both plaintis and defendants can also use the judicialAmparoas a sort of writ of mandamus, challenging unfavorablerulings of courts in civil cases. They le a separate claim against

the civil court, alleging the decision in private litigation violated

their constitutional rightssay, for example, equal protection or

due process. This opens a second front in the civil litigation.


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In those countries, it is a single instancecase without appeal. In some jurisdictions,there are no clear procedural rules. Forexample, an Amparoin Venezuela is fileddirectly with the Constitutional Chamber of

the Supreme Court. It is a single instancecase with no appeals, following no pre-determined procedure. The ConstitutionalChamber determines the procedure to beused on a case-by-case basis. But in everyinstance, the Amparois intended to bean extraordinary, and rapid, procedure toprotect constitutional rights. Timeframesto respond are short, and evidentiaryprocedures are truncated.

WHY DOES THE AMPAROMATTER?Two trends in the developing Amparolawsmake the process significant to businessesoperating in the region. The first is theAmparoagainst a private party. The originalMexican Amparocould only be filed againstthe government or government entities.Over the years, it has expanded in severalcountries to allow claims against privateparties. Claims against manufacturers

for failing to provide complete productinformation or warnings could be thesubject of an Amparo, as could claimsthat environmental damage occurred atthe hands of a company. Some form ofAmparoclaims against private parties areallowed today in Argentina, Bolivia, Chile,Costa Rica, Uruguay, and Venezuela, amongothers.36In Mexico, an Amparomay nowbe brought against a private company if

it is performing a public function undergovernment license, for example a utility ortelecommunications company.37

In Argentina, the Amparobecame the toolof choice for plaintiffs during the financialcrisis of 2002. At the time, the Argentinepeso was experiencing rapid deflationagainst the dollar. From 1991 through 2001,

the two currencies traded one-for-one in themarket. But the value of the peso droppedrapidly in January 2002. In response, thegovernment decided to curtail the damageby maintaining an official exchange rate ofone-to-one, and issuing a decree that alltransactions (including withdrawal of dollarsfrom bank accounts) needed to be in pesosat the official exchange rate. Argentines withaccounts in dollars stood to lose substantial

amounts under the decree, and they tookto the Amparoto salvage their accounts.Thousands of Amparoclaims were filedagainst the government seeking decisionsthat the decree was unconstitutional andagainst the banks seeking orders to releasethe accounts in dollars. The courts wereflooded with Amparoactions, and the banksscrambled to defend themselves within themandated law from the government.38

Another trend is the developing concept ofa collective Amparo, a form of class actionto protect diffuse rights under the Amparoprocedure. Mexico has now expanded itsAmparolaw to allow for representative,collective Amparos seeking reparations forsociety as a whole.39Collective Amparoshave been recognized by court decisionsin Argentina,40and collective Amparolegislation is currently pending there.41With

the expanded scope of the Amparoandthe procedural ease of filing them, Amparoactions are likely to continue to be anaction of choice for any claims that can bepresented in terms of constitutional rights.


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THE POPULARITY OF POPULAR ACTIONS

A similar form of claim common throughoutthe region is the Popular Action, which ismuch like a private attorney general actionin the U.S. The plaintiff, a so-called popular

actor, can file a claim to protect diffuserights. These actions are said to protectpublic patrimony, health, consumers rights,natural resources, public spaces, and theculture of the country. Unlike class actions,these claims can be filed by individualcitizens, and there is no need for any kindof certification. Standing is also providedto non-governmental organizations andcertain public authorities. Individuals and

corporations can be defendants. The reliefsought is generally said to be injunctive,but it can also include orders to providereparationto pay for cleanup of theenvironment or for corrective advertising.These awards, while not technicallycompensatory damages, can involvesubstantial amounts.

As with the Amparo, procedures areintended to be truncated to provide for

a quick resolution, leaving the defendantwith little time to prepare a defense andlimited opportunity to present evidence.Because the Popular Action is available to

private citizens, it is the obvious choice forindividual consumers seeking redress formatters that include diffuse rights.

Colombia provides a good example of theexperience with Popular Actions. Under theColombian Popular Action Law of 1998,42apopular actor was also awarded a financialincentive if his claim was successful. Thisincentive could be several thousand dollars,or in some cases a percentage of the valueof the claim, which could be big money.The Popular Action became prevalent inColombia, leading to the developmentof a cottage industry of professionalpopular actors making a living by filing

and settling Popular Actions. In 2010, over20,00043Popular Actions were filed inColombia, many of which were settled bythe defendants for the value of the financialincentive. Once the settlements started, theclaims multiplied. The primary targets weretelecommunications providers, productmanufacturers, and government services. InDecember 2010, the legislature respondedby passing a bill that eliminated the financial

incentive in Popular Actions.44Since then,the number of Popular Actions filed inColombia has dropped remarkably.45

The Popular Action became prevalent in Colombia, leading

to the development of a cottage industry of professional popular

actors making a living by ling and settling Popular Actions. In

2010, over 20,000 Popular Actions were led in Colombia, many of

which were settled by the defendants for the value of the nancial

incentive. Once the settlements started, the claims multiplied.


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New Civil Procedure CodesThe rules of civil procedure in civil lawcountries are contained in codes enactedby the legislature. There are separate

procedural codes for criminal matters, labormatters, administrative courts, and generalcivil litigation. Traditional civil procedure inmany civil law countries focuses on writtenevidence and argument. Hearings usuallyare not open to the public, and witnesstestimony is not very important. In somecountries, parties often dont testify at all, andfact witnesses testify before a court clerk.The clerk then summarizes the testimony ina document to be read by the judge whenconsidering the evidence. There is no truetranscript and no means by which the courtcan view the witness to assess credibility.

Until recently, Latin American courtsgenerally operated under traditional civilprocedures. Although they had beenamended over the years, many of the codeswere very old, dating to a time beforethe electronic age and when the litigation

process did not include many complex orscientific issues.46Today, that is changing.Several new codes have been adopted,and more are on the way. The current trendmakes procedures in Latin America lookquite a bit more North American than inthe past. In addition, the use of moderntechnology is becoming common in LatinAmerican courtrooms.

New civil procedure codes have recentlybeen adopted in several countries, forexample, in Bolivia, Honduras, El Salvador,and Colombia.47Bills to establish new codesare under consideration in Brazil, Chile,

Costa Rica, and Ecuador.48As mentionedpreviously, Costa Rica is on the verge ofpassing a new code. Brazil is working on anew procedural code, a process that beganmore than three years ago.49While there isno legislation on the table yet, the subject isalso under discussion in Argentina. There isa trend among these codes. Countries arewatching what others do and then taking upsimilar initiatives at home. Some parts of the

trend increase objectivity and transparency,while others could create issues.

CHILE

ARGENTINAURUGUAY

BRAZIL

PERU

BOLIVIA

PARAGUAY

ECUADOR

MEXICO

COLOMBIA

VENEZUELAGUYANA

PANAMA

COSTARICA

NICARAGUA

HONDURAS

ELSALVADOR

GUATEMALA

BELIZE

SURINAME

GUYANE

CIVIL PROCEDURE CODES IN

CENTRAL & SOUTH AMERICA

Latin Americancountries withnew CivilProcedure Codes

Latin Americancountries with proposednew Civil Procedure Codes


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Among the most dramatic changes is theshift in some jurisdictions from a purelywritten proceeding to a system thatincludes both written and oral processes.Complaints and answers remain written for

most cases, but evidence and argumentsare oral. The testimony of witnesses, whichonce was subject to a summary by a clerkwho was not a decision-maker in the case,is now more valuable to the parties. Thenew systems incorporate a concept calledinmediacin, or immediation. Witnessestestify live, in open court, before the samejudge who is to rule on the case. The courtcan see the witness, ask questions of

its own, and assess the credibility of thewitness. The testimony is preserved onvideotape from several angles for review byappellate courts as necessary.

Previously, the last step in a case, beforebeing submitted to the court for ruling,was the closing submission. These werewritten briefs addressing the evidence andlaw applicable to the case. Sometimesthey were read aloud by counsel in private

hearings, but there was no argument orcounterargument among counsel. Underthe new rules, courts hold open, publichearings for the parties to argue the meritsof the case, in a manner similar to closingarguments in a trial, or a summary judgmentargument, in the U.S. And again, thevideotape is rolling.

These changes no doubt require lawyers

to adapt their style of practice and developnew skills for questioning witnesses andpresenting arguments. Implementationof the new procedures has been slowedsomewhat as courts build in the technologyto comply with the new rules, but the newprocedures are coming and should improvethe judges ability to know and understandthe case and make informed decisions.

Elements of ColombiasNew Civil Procedure Code

1. Oral Procedures proceedings tobe conducted on the basis of public

hearings2. Immediation Judge that decides

the case must view the witnesses andevidence

3. Concentration evidence consideredin a concentrated trial hearing

4. Time limits for courts

a. Trial court must rule within oneyear of original service of process

b. Appellate Court must rule withinsix months of receipt of docket

5. Use of technology

a. Electronic docket

b. Service of process by email

c. Videotaping of all proceedings

d. Court may hold hearings byvideoconference


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Other changes (or in some cases theretention of old rules) merit carefulconsideration. For example, some newcodes allow shifting the burden of proof.

Traditionally in civil law, as in common law,the burden of proof lies with the partyasserting the fact. A plaintiff would need toprove that the defendant acted in an illicitmanner (negligence, intentional misconduct,etc.), that damages were incurred, and thata causal connection existed between thetwo. The new codes include mechanismsfor courts to shift the burden of proofcreating a dynamic burden of proof. Thisallows the court to shift the burden to the

party whom the judge believes is in a betterposition to prove the fact at issue. In aproduct liability case, the judge may put theburden on the defendant to prove that theproduct is not defective, that its advertisingwas not misleading, or that a defect did notcause the injury.

One of the dangers of a dynamic burden ofproof is the possibility for the court to shiftthe burden in the final decision, after all theevidence has been produced, when it is toolate to come forward with new evidence tomeet the burden. In other words, when thecourt reviews the record at the end of thecase and finds that a given fact has neitherbeen proven nor disproven, the judge canuse this burden-shifting power to determinewhich side will win the case. Theseprovisions merit special attention.

Colombias DynamicBurden of Proof:

As a general rule, the party interested inproving facts has the burden to do so.

However, taking into account theparticularities of the case, the judgemay distribute the burden of proofbetween the parties, according to which

party is in a better position to providethe evidence. The order of distributionof the burden of proof must be issuedby the judge in the evidentiary writ orduring the evidentiary stage.

A party will be deemed in best positionto prove, based on: (i) its proximityto the evidentiary material; (ii) its

possession of the evidence; (iii) anyparticular technical circumstances;(iv) its direct intervention in the eventswhich led to the litigation; or (v) thedefenselessness, character, or disabilitycircumstance of the counterparty,among other similar circumstances


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In addition, time frames and deadlines tendto remain very short, as they were in theprior codes written in a different era. In LatinAmerica, deadlines to respond to allegationscan be as little as ten days. Beyond that,in many systems, answers must comecomplete with all evidence to be producedand all witnesses to be called. These

deadlines can put a serious burden ondefendants, and they cannot be extended.

Furthermore, in most countries, there isa further expedited procedure for certainmatterssmall claims, domestic matters,etc. These are the sumarsimoproceedings.Answers could be due in five days, or evenin three. There have been proposals insome countries to try all claims involvingconsumers, regardless of their complexity,

in sumarsimoproceedings. That isessentially the law in Argentina today.50While many claims filed by consumersmay be simple enough that sumarsimoprocedures will work, many are not. Aconsumer class action, for example, shouldnot be tried under such onerous procedures.The procedure alone can be fatal to thedefense of a case. As mentioned previously,there is a bill in Argentina to take class

actions out of the sumarsimoproceedings.

Substantive LawCivil Codesand Consumer ProtectionThe substantive law in Latin Americancountries is similar to that of other regions.The terminology varies, but legal concepts,such as negligent conduct, intentional torts,compensatory damages, product defects,

and assumption of the risk, all exist inthe region and appear to be based on thesame fundamental logic. But there areperhaps a few substantive rules that exist,or have been proposed, that could be gamechangers for defendants in future litigation.

ABSOLUTE LIABILITY

The Brazilian Civil Code contains twoprovisions that suggest absolute liabilityfor certain product manufacturers.51The

first is article 927 which refers to liabilityfor risky activity. This is somewhat similarto the common law concept of liability forultra-hazardous activities, such as dynamiteblasting, transporting radioactive materials,etc. In common law countries, the thresholdfor liability for such activities is lowered andthe required duty of care is greater. But inBrazil, liability is absolute. If the court findsthat the risky activity provision applies,

causation and damages are the only issuesto address.

That may work as a legal construct if theprovision is limited to truly risky activities.But in case law and legal doctrine, the

[I]n Brazil, liability is absolute. If the court nds that the riskyactivity provision applies, causation and damages are the onlyissues to address.


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risky activity provision has been appliedto the manufacture of products. Thus, themanufacture of a product that presentsinherent risks, even if not defective, couldbe subject to absolute liability.

The Brazilian Civil Codes article 931provides for absolute liability for dangerousproducts, as distinct from defectiveproducts. Again, this provision could beapplied to any number of products thatpresent some danger simply because ofthe nature of the product, such as gunsor knives. Article 931 stands in contrastto another provision, article 12, appliesthe more familiar concept of liability for

damages caused by defective products;that is, products that present risks that arenot recognized by the ordinary consumerwithout an adequate warning.

In 2012, the Center of Legal Studies of theFederal Justice Council of Brazil issued anenunciado(a sort of advisory opinion)regarding article 931,52which in essencereminded courts of the existence of theprovision and stated that it widens theconcept of product liability set out inarticle 12. The enunciadocould signal atroubling expansion of liability in Brazil fromstrict liability for a defective product, to asystem of absolute liability for any harmscaused by a product.

There is a similar potential widening ofliability contained in a new draft Civil andCommercial Code in Argentina.53Currently,

doctrine holds that the owner or guardianof a risky thing is strictly liable for thedamage it causes. This arose in responseto claims for injury resulting from motor

vehicle accidents, where the responsibleparty (the driver) was held civilly liable.54The new proposal seeks to incorporate thisdoctrine into the civil code, but it goes astep further by calling for liability for anyone

who benefits from the commercial activitysurrounding the product. This could bethe manufacturer, wholesaler, dealer, ortransporter. Although this concept has beensuggested previously in Argentina, it has nottaken hold in the courts. The addition of thisbroad concept of liability in the written codewould expand the concept of liability farbeyond where it stands today.

PUNITIVE DAMAGES IN CIVIL LAW

Punitive damagesthose designed topunish the tortfeasor, rather than tocompensate the plaintiffhave traditionallybeen foreign to civil law in Latin America.The civil law system is designed to returnthe parties to the positions they wouldhave held if there had been no tort orbreach committed. It is not intended andshould not be used to obtain an advantage,financial or otherwise. As such, there is no

place for punishment in damage awards.Punishments for malfeasance are left tocriminal law or administrative sanction. Thistraditional view, however, may be changing.

Argentina amended its consumer law in2008 to allow punitive damages for any tortor breach of contractual obligations.55Thereis no heightened standard for the applicationof punitive damagesno requirement forreckless disregard or intentional conduct

as is required in the U.S. Furthermore, noneof the safeguards that the U.S. SupremeCourt has introduced to rein in punitivedamages exist in the Argentine law. There


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is no concept of ratios of punitive damagesto compensatory damages, or limitationson multiple punitive awards for the sameconduct. There is a maximum limit forpunitive awards set at AR$ 5 million, roughly

US $625,000.56A pending bill seeks toallow the court to impose punitive damagesex officio(i.e., on its own determination inthe absence of a specific requestfrom plaintiff).57

Once punitive damages were allowed,plaintiffs began routinely seeking them inconsumer cases. Punitive damages awardsin some cases show that there is a risk ofrunaway punitive damages awards under

the current law. In one case,Teijeiro v.Quilmes,the plaintiff alleged that he founda condom wrapper in a soda bottle andsued the manufacturer.58He did not drink

the soda or otherwise suffer damagesas a result of the alleged manufacturingdefect. The court awarded compensatorydamages (a new bottle of soda) and punitivedamages in the amount of $2 million pesos

(approximately $450,000 at the time of theaward). That punitive damages award waslater overturned on appeal, in a decision thatexplained the purposes of punitive damagesand referred specifically to recent U.S.Supreme Court case law.59

Punitive damages are also a topic ofdiscussion in Brazil. In that country, as inmost, there are no punitive damages, butthere are moral damages, which are roughly

the equivalent of damages for pain andsuffering. Several bills have been introducedin the national legislature to establishpunitive damages outright, or to bring apunitive element to moral damage awards.60

Article 52bis of the Argentine ConsumerProtection Law (Ley 24.240) provides:

Punitive Damages. At the requestof the victim, the judge may award

a civil ne against the supplier whodoes not comply with its legal orcontractual obligations, which will begraduated according to the gravityof the facts and other circumstancesof the case, independently from othercompensations that are available.


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Conclusion: Litigation and

Law Reform in Latin AmericaLegal systems are changing rapidly in Latin America through

a process of reflection and imitation at the regional level. This

process will impact the legal landscape and the litigation risk in

the region for years to come.

As for this ever-changing law and procedure,an ounce of prevention is worth a pound ofcure. Monitoring developments and catchingthem early will open up opportunitiesto engage in the process and shape theoutcome. Legal blogs and private law firmsoften inform clients of changes in law onlyafter they are enacted, when it is too late todo anything to change the outcome.

Businesses should take it upon themselvesto monitor these developments as theyarise, when the discussions and debatesare still being formed. They should alsoask their outside counsel to monitor andreport on developments as they arise andparticipate in the debates themselves. Andwhen a potentially unbalanced law is underdiscussion, private industry should express

its concerns, not to hinder development ofthe law, but to ensure a level playing fieldfor all members of society.


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Endnotes1 This is a survey paper containing the

observations of a U.S. lawyer based on astudy of the legal institutions in Latin America.None of these observations can substitute forprofessional legal opinions on particular mattersof substantive or procedural law obtained fromlicensed counsel in the given jurisdictions.

2 Harvey L. Kaplan, William J. Crampton, MarcE. Shelley, Class Actions DevelopmentsOverseas, Product Liability Litigation: CurrentLaw, Strategies and Best Practices(2013).

3 Instituto Ibero-Americano de Derecho Procesal,Cdigo Modelo de Procesos Colectivos Para

Iberoamrica, 28 October 2004.

4 Lei de ao Civil Pblica, Lei no. 7.347 (24 July1985).

5 Antonio Gidi, Class Actions in Brazil A Modelfor Civil Law Countries, American Journal ofComparative Law:Vol. 51, p. 311 (2013).

6 Id.

7 McAllister, Lesley K. Revisiting a PromisingInstitution: Public Law Litigation in the CivilLaw World, Georgia State University Law

Review: Vol. 24: Iss. 3, Article 2 (2007).8 Id.

9 It has been reported that in 2001, the SoPaulo Ministrio Pblico had a total of 36,753open investigations and public civil actionsin the area of diffuse and collective interestscovering environmental pollution, constitutionalrights, childrens rights, worker health andsafety, housing and urban problems, consumerprotection and disability rights. Id.

10 Fed. R. Civ. P. 23(a) provides the followingprerequisites for class certificationall of whichmust be satisfied: (1) the class is so numerousthat joinder of all members is impracticable[numerosity]; (2) there are questions of lawor fact common to the class [commonality];(3) the claims or defenses of the representativeparties are typical of the claims or defenses ofthe class; and (4) the representative parties willfairly and adequately protect the interests of theclass. Rule 23(b) provides that [a] class action

may be maintained if Rule 23(a) is satisfied and

if (3) the court finds that the questions of lawor fact common to class members predominateover any questions affecting only individualmembers [predominance], and that a classaction is superior to other available methods forfairly and efficiently adjudicating the controversy[superiority]

11 Lei No. 8.078 (11 September 1990). Fora translation of some of the class actionsprovisions seeGidi, supranote 5.

12 For more information about this Brazilianproposal, seeILRs publication Class ActionEvolution: Improving the Litigation Climate

in Brazil, May 2014, availableatwww.instituteforlegalreform.com [hereinafter Brazil].

13 Ada Pellegrini Grinover, The Defense ofthe Transindividual Interests - Brazil andIberoamerica from The Globalization of ClassActions, An International Conference Co-Sponsored by Stanford Law School and Centrefor Socio-Legal Studies, Oxford University (Dec.2007) available athttp://globalclassactions.stanford.edu/content/defense-transindividual-interests-brazil-and-ibero-america.

14 Instituto Ibero-Americano de Derecho Procesal,supranote 3. Antonio Gidi, Las AccionesColectivas y la Tutela de los Derechos Difusos,

Colectivos Individuales en Brasil: Un modelo

para pases de derecho civil, UniversidadNacional Autnoma de Mxico, Instituto deInvestigaciones Jurdicas, Doctrina JurdicaNm. 151 (2004).

15 SeeJorge Perez, Impulsan los juicios colectivos(29 April 2009), available at: http://arvm.mx/wp-content/uploads/2009/04/seduvi.pdf, discussingthe bill, which was titled, Iniciativa en materiade acceso colectivo a la justicia con proyecto

de Decreto que reforma y adiciona diversos

artculos del Cdigo de Procedimientos Civiles

para el Distrito Federal, de la Ley Ambiental

del Distrito Federal, del Cdigo Civil para el

Distrito Federal, de la Ley de Procedimiento

Administrativo del Distrito Federal y de la Ley

de Responsabilidad Patrimonial del Distrito

Federal(2009).


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16 SeeJesus Ruiz Munilla, Las acciones colectivasen el Derecho Mexicano(July 1, 2011), availableat: http://elmundodelabogado.com/2011/las-acciones-colectivas-en-el-derecho-mexicano/.

17 For a complete analysis of the legislativeprocess in Mexico and the ultimate legislation,

seeWilliam Crampton & Silvia Kim, PiecingTogether the Puzzle of Mexican Class Actions,Class Action Watch (Federalist Society for Law& Public Policy Studies), Sept. 30, 2011, at 1.

18 The law was published in the Federal OfficialGazette on August 30, 2011. It is not a stand-alone statute; rather, it is a set of amendmentsto other statutes. For example: Articles 578-626added to the Federal Code of Civil Procedure;Article 1934, added to the Federal Civil Code;Amendments to Article 38 of the Federal Lawon Economic Competition; Amendments to

Article 26 of the Federal Law of ConsumerProtection; Amendments to Article 53 andArticle 81 of the Organic Law of Judicial Power;Amendments to Article 202 of the GeneralLaw of Ecological Balance and EnvironmentalProtection; and Amendments to Articles 11,91, and 92 of the Law for the Protection ofFinancial Services Users.

19 Bill to Reform the Federal Code of CivilProcedure, submitted by Senator IsaasGonzlez Cuevas and published in theParliamentary Gazette on November 27, 2012.

Bill to Reform the Federal Consumer ProtectionLaw and the Federal Code of Civil Proceduresubmitted by Senator Martha Palafox Gutirrezand published in the Parliamentary Gazette onApril 23, 2013.

20 Federal Supreme Court, Halabi, Ernesto vs.P.E.N. -ley 25.873 dto. 1563/04- s/Amparo-ley16.986, February 24, 2009, Fallos 332:111.

21 Federal Supreme Court, PADEC v. SwissMedical S.A. s/ nulidad de clusulascontractuales, August 21, 2013,LA LEY 2013-E, 290.

22 Article 498, Federal Civil and Commercial Codeof Procedure; Article 498, Civil and CommercialCode of Procedure of the Province of BuenosAires. Similar provisions exist in the Civil andCommercial Procedural Code of the Provinceof Santa Fe, and the Civil and CommercialProcedural Code of the Province of Mendoza,among others.

23 The Consumer Protection Law, Law 24.240,provides in Article 53 that the most abbreviatedprocedures of the competent tribunal willgovern claims brought under the law. As aconsequence, courts have applied the fast-track procedures to class actions if available in

that particular jurisdiction. VIEL TEMPERLEY,Facundo Acciones colectivas: Dificultadesprcticas, LA LEY 2008-C, 996. See alsoCommercial Trial Court No. 12, Secretariat No.5, in re ADECUA vs. Banco BNP Paribas y OtroS/ Ordinario, February 8, 2011.

24 Bill 7200-D-13, which was submitted tothe Federal House of Representatives byRepresentative Fernando Yarade in October2013.

25 Halabi, supranote 20, paragraph 12.

26 Ley 19.955 (July 14, 2004), amending Ley19.496 (July 2, 1997).

27 See Tom Azzopardi, Supermarket Orderedto Pay Compensation In Chiles First-Ever

Successful Class Action(May 1, 2013).

28 Ley 20.543 (October 21, 2011), amending Ley19.496 (July 2, 1997).

29 Expediente No. 15.979, Cdigo Procesal Civil(2011).

30 Allan R. Brewer-Caras, The Latin AmericanAmparoProceeding and the Write of Amparoin

the Philippines, City University of Hong KongLaw Review:Vol. 1.1, p. 73 (2009).

31 Hector Mairal, Problemas Actuales delControl Judicial, in Cuestiones de controlde la administracin pblica. Admnistrativo,legislativo y judicial (jornadas), p. 751, RAP,Buenos Aires, 2010.

32 Brewer-Caras, supranote 30.

33 5 U.S. 137 (1803).

34 Id.

35 Brewer-Caras, supra, note 30.

36 Brewer-Caras, supra, note 30.

37 Ley de Amparo(April 2, 2013).

38 Horacio M. Lynch, La justicia ante laemergencia LL 2002-C-1287; see alsoSAGESNESTOR, El Amparoconstitucional a diez aosde la reforma de 1994 JA 2004-III-981.


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39 Nueva Ley de Amparo(published in the OfficialGazette on April 2, 2013).

40 See, Federal Supreme Court, in re AsociacinBenghalensis, Fallos 323:1339.

41 Bill 0172-D-2013 submitted to the Federal

House of Representatives by RepresentativePaula Mara Bertol on March 4, 2013 and Bill0541-D-2013 submitted to the Federal House ofRepresentatives by Representative Gil Lavedraon March 11, 2013.

42 Ley 472 (August 5, 1998).

43 National statistics on the number of popularactions filed, by district, can be found at: http://fundacolectivos.wordpress.com/2013/09/08/estadisticas-colombianas-de-acciones-populares-anos-2010-2013/?relatedposts_hit=1&relatedposts_origin=776&relatedposts_

position=0.44 Ley 1.425 (December 29, 2010).

45 According to the Defensora del Pueblo inBogot, in Bogot alone, 1,024 Popular Actionswere filed in 2010 whereas only 359 werefiled between January 2011 and March 2012.The most drastic drop is seen in Santander,where 1,397 popular actions were filed in2010 whereas only 193 were filed betweenJanuary 2011 and March 2012. See http://www.ambitojuridico.com/BancoConocimiento/N/noti-121014-10la_eliminacion_del_incentivo_afecto_

la_accion_popular/noti-121014-10la_eliminacion_del_incentivo_afecto_la_accion_popular.asp?CanV=192.

46 For example, Argentina (1871), Brazil (1973),Chile (1903), Guatemala (1964), and Mexico(federal) 1943.

47 Bolivia: Ley 439 (November 19, 2013);Colombia: Ley 1.564 (July 12, 2012); Honduras:Decreto No. 211-2006 (published in the OfficialGazette on May 26, 2007); El Salvador: CdigoProcesal Civil y Mercantl (published in theOfficial Gazette on December 27, 2008).

48 Brazil: Bill 8046/10 (2010); Chile: Proyecto deLey de Nuevo Cdigo Procesal Civil (2012);Costa Rica: Expediente No. 15.979, CdigoProcesal Civil(2011); Ecuador: Proyecto deCdigo Orgnico General de Procesos (2014).

49 Brazil, supranote 12.

50 Article 53, Law 24.240 (Consumer ProtectionLaw).

51 Articles 927 and 931, Civil Code of Brazil, LeiNo. 10.406(January 10, 2002).

52 Conselho da Justia Federal, Jornadas deDireito Civil I, III, IV e V Enunciados Aprovados(March 2012) available athttp://www.stj.jus.br/publicacaoseriada/index.php/jornada/article/viewFile/2644/2836.

53 Article 1758 of the Proyecto de Cdigo Civily Comercial de la Nacin, issued by theexecutive branch on June 7, 2012 availableat http://www.infoleg.gov.ar/wp-content/uploads/2013/11/8842012.pdf.

54 Civil Court of Appeals, Panel J, Mozzi, ngelN. v. Ford Motor Argentina S.A., February 19,1992. See alsoRubn H. Compagnucci deCaso, Tipificacin de la figura del guardin enla responsabilidad por el hecho de las cosasinanimadas, ED, T. 67, p. 777.

55 Article 52bis, Law 24.240, as amended by Law23,361.

56 Article 47, Law 24.240, setting a ceiling formonetary sanctions in the amount of $5 millionpesos.

57 Bill 1135-D-13, which was submitted tothe Federal House of Representatives by

Representative Daniel Brue on March 20, 2013.

58 Civil and Commercial Trial Court No. 5, city ofCrdoba, Teijeiro Teigeiro Luis Mariano v.Cervecera y Maltera Quilmes S.A.I.C.A. y G.-abreviados- otros - 1639507/36, March 23,2011, LA LEY 2012-C , 64.

59 Teijeiro v. Quilmes, Cmara de Apelaciones enlo Civil y Comercial de Crdoba (April 17, 2012).

60 Bill 699/2011 introduced in the House ofRepresentatives by Representative ArnaldoFaria de S; Bill 523/2011 introduced in the

House of Representatives by RepresentativeWalter Tosta; Bill 3880/2012 introduced in theHouse of Representatives by RepresentativeDomingos Nieto; and Bill 413/07 introduced inthe Senate by Senator Renato Casagrande.


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following each other's lead: law reform in latin america

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