Earlier in 2011 the legislature published amendments to the Commercial Code that allow for oral proceedings in certain cases.
Oral proceedings will apply only to matters in which the value of the claim is Ps220,533.48 (around $20,000) or below, not including interest or other additions. Cases that are already subject to special procedures will not be decided in oral proceedings - for example, matters that are subject to executive proceedings are not subject to oral proceedings, even if the amount criterion is met.
The purpose of the change is to ensure that oral proceedings are flexible and that the judge has wide powers to conduct the proceedings as he or she deems appropriate. Certain procedural rules differ considerably from those regulating ordinary proceedings; some of the more significant differences are as follows:
- The statements of claim and response must be submitted in writing;
- The parties must produce evidence in support of their case with the statement of claim or response;
- The respondent must reply to the claim within nine days of being served;
- If there are counterclaims, the respondent in such counterclaims has five days to respond; and
- Oral commercial proceedings provide for two hearings - a preliminary hearing and a hearing on the merits.
The preliminary hearing will take place within 10 days of submission of the response (or the reply to the counterclaim). Its purpose is to allow the judge to prepare for the proceedings and admit evidence, but also to invite the parties to attempt conciliation.
Hearing on the merits
The hearing on the merits must take place within 40 days of the preliminary hearing. At this hearing the parties present their evidence, with each party being given 15 minutes to present its case. However, in keeping with the flexibility that the reform seeks to encourage, the allotted time may be extended or shortened as the judge deems appropriate.
In general, the evidence that can be produced in oral proceedings is the same as in other proceedings. However, oral proceedings allow the court to deal with such evidence in a different manner in order to ensure the flexibility of the hearing. On the issue of expert evidence, the changes expressly provide that experts may offer their opinions orally and may be questioned freely by the parties and the judge.
The judge must deliver his or her ruling within 10 days of closing the hearing on the merits. The ruling will be delivered to the parties in a meeting; the judge must explain his or her conclusions orally and must read out the final decision.
The purpose of the changes is to create flexible, expeditious proceedings for dealing with relatively small claims, leaving judges with more time to spend in ordinary proceedings, deciding more complex cases.
It remains to be seen how the rules will work in practice. One of the challenges will be training judges and litigators in the handling of oral cases. Despite this, the change has been greeted optimistically by the legal profession.
For further information on this topic please contact Salvador Fonseca or Juan Carlos Zamora at Chadbourne & Parke SC by telephone (+52 55 3000 0600), fax (+52 55 3000 0698) or email ([email protected] or [email protected]).