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Outline and explain the general structure of your country’s court system as it relates to the commercial appellate process.
The Argentine judicial system is divided into:
- federal courts, which are organised by the federal government;
- provincial courts, which are organised by each province; and
- courts of the city of Buenos Aires, which, although being called ‘national courts’, have jurisdiction only in the city of Buenos Aires.
The supreme judicial power of Argentina is vested in the Supreme Court of Justice.
The federal court system handles cases in which the dispute concerns an issue ruled by the National Constitution, national law, federal law or an international treaty and is composed of:
- first-instance courts, which are located in 17 jurisdictions across the country;
- appellate courts; and
- the Supreme Court of Justice.
Each province has its own court system according to its constitution. In general, provinces’ court systems are composed of lower courts (ie, first-instance courts), appellate courts and a provincial supreme court, which deal with cases based either on local laws or non-federal laws.
The city of Buenos Aires, because of its federal territory status, has its own court system, which is composed of national courts (ie, first-instance courts) and national appellate courts. Both of them refer to the local courts, which resolve non-federal law disputes.
Consequently, appellate courts are organised differently in the federal court system, the provincial system and the city of Buenos Aires.
On the one hand, the federal court system encompasses appellate courts located across the country, which have competence over civil and commercial matters. In small jurisdictions, however, federal appellate courts usually have jurisdiction over other fields as well. On the other hand, each of the provincial court systems have their own appellate courts. Finally, in the city of Buenos Aires, the national appellate courts are organised on behalf of the subject matter of the dispute and are divided into national civil appellate courts and national commercial appellate courts.
Are there appellate courts that hear only civil matters?
The competence of appellate courts in Argentina depends on their location (whether they are located in a province or the city of Buenos Aires) and the court system they are part of (provincial courts, national courts of the city of Buenos Aires or federal courts). As a general rule, there are appellate courts that only deal with civil matters. Nevertheless, in jurisdictions where there are not a great number of judicial cases, the courts are commonly vested, at least, with both civil and commercial competences.
Provinces have mainly structured their courts by giving appellate courts both civil and commercial competences. In some cases, these courts also have competence in the fields of labour and mining law. National appellate courts of the city of Buenos Aires have been divided into national civil appellate courts and national commercial appellate courts. For its part, federal appellate courts located in the city of Buenos Aires have jurisdiction over civil and commercial matters. Nevertheless, those places that do not have a significant population have federal appellate courts covering many fields (eg, civil, commercial, labour law and tax law).
Appeals from administrative tribunals
Are appeals from administrative tribunals handled in the same way as appeals from trial courts?
In general terms, appeals from administrative tribunals are handled the same way as appeals from trial courts. However, the applicable procedural rules may differ in some jurisdictions.
Appeals from national administrative appelate courts of the federal jurisdiction, as well as those from the Administrative and Tax Appeal Court of the City of Buenos Aires are governed by the National Civil and Commercial Procedural Code. Consequently, in these cases, the appeal (in terms of procedure and formalities) is ruled in the same manner as appeals from civil and commercial courts.
Nevertheless, differences may arise in the framework of provinces’ judicial structure and codes of procedure. Some provinces have a specific code of administrative procedures, which rules administrative and judicial remedies against acts of governmental authorities. Furthermore, while some of these codes rule appeal separately from the provincial Civil and Commercial Procedural Codes, others state that it will be governed in the same manner as the civil and commercial one.
The main difference will therefore revolve around the subject-matter jurisdiction of the court that has to decide on an appeal, since administrative appeals will be decided by administrative appelate courts and not by those competent in civil or commercial fields. It has to be taken into account that the applicable procedural rules may vary as well.
Representation before appellate courts
Is there a separate appellate bar or other requirement for attorneys to be admitted before appellate courts?
The only requirement to be admitted before a court (whether appellate or not) is to have been admitted to the bar of the acting jurisdiction. On the one hand, in order to appear as an attorney before an appellate court in the provinces, it is required to have been admitted to the bar of that province. However, the city of Buenos Aires has a special system. In this case, an attorney admitted to the city’s bar is allowed to appear before any of the courts (federal or local) located in the city.
If separate jurisdictions exist for particular territorial subdivisions or subject matters, explain their main differences as to commercial appeals.
In Argentina, the judicial system is structured in federal and local courts, which have two main differences with regard to commercial appeals.
Regarding the subject matter of the dispute, federal courts have jurisdiction over cases in which the dispute concerns an issue ruled by the National Constitution, a national or federal law - with the reservations stated in article 75 (12) of the National Constitution - or an international treaty. On the contrary, provincial courts and local courts of the city of Buenos Aires enforce local laws (ie, laws enacted by each province, or by the Federal Congress, in the exceptional cases when it functions as the legislative branch for the city of Buenos Aires) and ordinary or non-federal laws (which refer to the group of laws composed of the civil, commercial, criminal, labour and social security laws). Nevertheless, ordinary laws may also be exceptionally enforced by federal courts (article 75 (12) of the National Constitution) depending on the respective jurisdictions for persons or things.
Both federal and local courts follow different rules of procedure. For one, the procedure before federal and national courts located in the city of Buenos Aires as well as federal courts located in the provinces is governed by the National Civil and Commercial Procedural Code. For the other, provincial courts apply local civil and commercial codes of procedure enacted by provincial parliaments.
Bringing an appeal
What are the deadlines for filing an appeal in a commercial matter?
An application for leave to appeal must be lodged with the court within five days of the date the appellant is notified of the resolution to be appealed against (this is reduced to three days in the case of accelerated proceedings).
What are the key steps a litigant must take to commence an appeal?
First, once the decision subject to challenge has been issued, the party wishing to apply for leave to appeal must file a notice with the trial court expressing the will to appeal without stating the legal grounds for the appeal.
Second, after obtaining leave to appeal, the appellant shall state the legal basis for the appeal. In ‘unrestricted appeals’, which are only allowed with respect to final judgments in ordinary proceedings, the appellant must present the legal basis of the appeal to the appellate court within 10 days of the date the appellant is notified that the appellate court has received the court file. In ‘restricted appeals’, which can be lodged against court decisions other than a judgment in ordinary proceedings (ie, interlocutory decisions), the legal bases for the appeal must be presented to the first-instance court within five days of the date that the appellant is notified that the first-instance court has given leave to appeal.
Third, the opposing party must file its defences to the appeal. In ‘unrestricted appeals’, the defences must be filed within 10 days of the date the defendant is notified of the appellant’s legal bases for the appeal. In the case of ‘restricted appeals’, the opposing party must file its defences at the first-instance level within five days.
How is the documentation for appeals prepared?
As a rule, a party wishing to apply for leave to appeal must apply for it to the first-instance court that issued the decision subject to challenge. Nevertheless, the manner in which the record on appeal will be prepared and transmitted to the appellate court depends on the type of appeal under consideration.
On the one hand, in the case of ‘unrestricted appeals’, if the first-instance judge grants leave to appeal, the court file must be remitted to the Court of Appeal within five days of the date the first-instance court gives leave to appeal.
On the other hand, in ‘restricted appeals’, the appellant’s grounds of appeal and the opposing party’s defences must be filed to the trial court, after this court gave leave to appeal. Afterwards, the first-instance court will compile and transmit the court file to the appeal court.
Right of appeal
Discretion to grant permission to appeal
In commercial matters, may litigants appeal by right or is appellate review discretionary?
In the Argentine judicial system, the litigants have a right to appeal. Consequently, for an appeal to be admissible, the first-instance tribunal (to which the appellant applies for leave to appeal) must only check that the appeal application complies with the admissibility requirements stated by the law. The admissibility requirements are related to the following issues:
- Decision subject to appeal: the judicial decision must be described by law as one of those that may be subjected to appeal. Particularly, the challenge judicial resolution - in order to be appealable - must directly provoke to the appellant actual and certain personal damages.
- Subjects: these have to be entitled to appeal by law.
- Formalities: in principle, the application for leave to appeal must be lodged with the first-instance tribunal that issued the challenge resolution. The application must not state the legal basis for appeal.
Judgments subject to appeal
Can litigants appeal any ruling from a trial court, or are they limited to appealing only final judgments?
Final judgments as well as interlocutory orders of a court can be appealed. There are three types of interlocutory decisions that may be appealed:
(i) interlocutory decisions that the court takes after having heard both parties;
(ii) interlocutory decisions that the court takes without having heard both parties but that affect one party in such a way that the damage resulting therefrom cannot be repaired upon rendering the final judgment; and
(iii) interlocutory decisions that the court takes without having heard both parties but that do not have the effect described in point (ii).
Furthermore, there is a minimum money-claim amount requirement. Final judgments and interlocutory decisions that are issued in a case that does not meet the minimum claim amount will not be appealable. This amount is determined every year by the Supreme Court of Justice. For 2018, the minimum amount is approximately US$4,500 (Supreme Court of Justice Ruling No. 45/2016). Nevertheless, this limit is not applicable to maintenance claims, eviction, procedural sanctions and disputes over the fees incurred for legal services.
Security and interlocutory matters
Security to appeal
In a typical commercial dispute, must a litigant post a bond or provide security to appeal a trial court decision?
In principle, the appellant is not obliged by law to post a bond or provide any security. Nevertheless, some local laws require the appellant to deposit an amount of money to secure the first-instance decision. This happens, for example, in maintenance cases in which the immediate fulfilment of the final judgment is sought.
Are there special provisions for interlocutory appeals?
The rules concerning ‘restricted appeal’ are applicable in cases of appealing interlocutory decisions. This type of appeal has important differences from the ‘unrestricted appeals’, which are only allowed with respect to final judgments in ordinary proceedings. First, while in ‘restricted appeals’, no new facts or pieces of evidence may be introduced at the appellate level, in ‘unrestricted appeals’, the parties may introduce them, with certain limitations. Second, the legal bases for the appeal must be presented to the first-instance court within five days of the date that the appellant is notified that the first-instance court has given leave to appeal. In ‘unrestricted appeals’, however, the legal bases must be presented to the Court of Appeals within 10 days of the date the appellant is notified that the Court of Appeal has received the court file. Third, in the case of ‘restricted appeals’, the opposing party must file its defences to the first-instance court, within five days of the date that it is notified of the appellant’s legal bases for the appeal. This differs from ‘unrestricted appeals’, in which the opposing party must file its defences to the appeal within 10 days of the date it is notified of the appellant’s legal bases.
In addition, a special regime is provided for interlocutory orders made by the court without having heard both parties that do not affect one party in such a way that the damage resulting therefrom cannot be repaired upon rendering the final judgment. These orders can be reversed by the same court or judge that issued them. The petition must be filed by the challenging party within three days of being notified of the interlocutory order.
Finally, if the order to be challenged is rendered at a hearing, the petition must be filed at that same hearing, along with the bases for the challenge.
Injunctions and stays
Are there special rules relating to injunctions or stays, whether entered in the trial court or on appeal?
Unless the law otherwise provides, in principle, when a party lodges an appeal, the effects of the decision subject to challenge are suspended, so it does stay the enforcement of the trial court judgment. However, where appeals are made against injunctions, these may nevertheless be enforced.
Scope and effect of appellate proceedings
Effect of filing an appeal
If a litigant files an appeal in a commercial dispute, does it stay enforcement of the trial court judgment?
In principle, if a trial court judgment is appealed, its enforcement is suspended until the appeal is decided. Therefore, after admitting appeal, the effects of the decision are suspended, which means that the trial court judgment cannot be enforced until the decision of the appellate court. Nevertheless, in some specific cases, the law determines that the trial court judgment may be enforced even when being appealed (eg, in the case of precautionary measures).
Scope of appeal
On an appeal from a commercial dispute, may the first-level appellate court consider the facts and law anew, or is its power to review limited?
The scope of the appellate tribunal’s power to review varies depending on whether the appeal is ‘unrestricted’ or ‘restricted’.
The appellate court that has to decide upon an ‘unrestricted appeal’ has a broader power to review the case. Within the limits and requirements set forth in procedural law, this type of appeal allows the parties to submit new evidence, resubmit previous evidence that was not considered by the trial court (provided that the evidence is crucial for deciding the case) and also to present new facts.
On the contrary, ‘restricted appeals’ limit the appellate court’s review power. The court must strictly stick to the facts alleged and to the evidence produced in the first instance, since the allegation of new facts and the re-examination of evidence do not proceed.
If a party is dissatisfied with the outcome of the first-level appeal, is further appeal possible?
Formerly, if a party was dissatisfied with the outcome of the Court of Appeal, further appeal before the Supreme Court of Justice was possible in a limited number of cases. However, in a recent decision, the Supreme Court of Justice stated that its intervention as a third instance turns it into an ordinary tribunal, which alters its main role as final interpreter of the Argentine Constitution.
Consequently, the Supreme Court of Justice may review a Court of Appeal decision only by means of an ‘extraordinary legal remedy’ whenever it is alleged that the decision subject to challenge is final and in conflict with:
- a provision under the Argentine Constitution; or
- the interpretation or application of a treaty or a federal law.
Duration of appellate proceedings
How long do appeals typically take from application to appeal to a final decision?
The procedural laws determine the time limits in which parties and tribunals have to act in the procedure. This goes from determining the time frame in which the appellant must apply for leave to appeal until the time limit set to the tribunal for rendering the final decision. The National Civil and Commercial Procedural Code states that the final judgment should be issued within 60 days in ordinary proceedings (which is reduced to 30 days in accelerated proceedings). Nevertheless, these time limits are not peremptory. In fact, the duration of the appeal process depends on the complexity of the case at hand and whether the appeal is ‘unrestricted’ or ‘restricted’. Generally, it takes between three and six months.
Submissions and evidence
What is the briefing and argument process like in a typical commercial appeal?
The briefing and argument process will vary depending on whether the appeal is ‘unrestricted’ or ‘restricted’.
In ‘restricted appeals’, the legal bases for the appeal must be presented to the first-instance court within five days of the date the appellant is notified of the first-instance court resolution, which grants leave to appeal. If an appellant fails to state the legal bases of its appeal within the term set down by the procedural code, the courts shall consider that the appellant has forfeited its right to appeal and no further challenge will be allowed with respect to the appealed decision, which will then be considered to be final and conclusive. If the appellant submits the ground for appeal, the opposing party must file its defences to the appeal, in the first-instance, within five days of the date that it is notified of the appellant’s legal bases for the appeal. After submission of the defences or expiration of the term, the first-instance tribunal shall, within the fifth day, forward the file to the appellate court.
In the case of ‘unrestricted appeals’, if the first-instance judge gives leave to appeal, the court file must be remitted to the court of appeal within five days of the date the first-instance court gives leave to appeal. The legal basis of the appeal must be presented to the court of appeal within 10 days of the date the appellant is notified that the court of appeal has received the court file. The opposing party must file its defences to the appeal within 10 days of the date it is notified of the appellant’s legal bases for the appeal.
In both cases, the argument process has particular characteristics. The grounds for appeal that are presented by the appellant must consist of a written objection to the judge’s ruling, which means a serious and well-founded criticism of the judicial resolution that is being appealed.
Are appeals limited to the evidentiary record that was before the trial court, or can new evidence be introduced on appeal?
The possibility to introduce new evidence before the appellate court varies depending on whether the appeal is ‘restricted’ or ‘unrestricted’. While ‘restricted appeals’ have a more stringent regime, the ‘unrestricted appeal’ gives the challenging party broader possibilities to introduce new evidence.
In restricted appeals, no new facts or pieces of evidence may be introduced at the appellate level. However, new evidence could exceptionally be introduced in the case of certain injunctions (eg, motion to increase or reduce alimony).
In unrestricted appeals, the parties may introduce new facts and pieces of evidence, subject to the requirements set forth by the applicable procedural law. In the expression of the legal basis for the appeal, the appellant may:
- identify previous evidence that was rejected by the first-instance court, which the appellant asks to resubmit at the appellate level;
- submit documents on which it intends to rely, when those documents have been known after the date of the first-instance judgment;
- ask for the defendant’s answers to oral interrogatories on new facts that were introduced, as well as previous facts that were not subject to the evidence submitted to the first-instance tribunal; and
- ask the appellate tribunal for the submission of new evidence related to the new facts.
In general, all means of evidence are allowed, for example, documentary evidence, testimony of witnesses, oral testimony of the parties and circumstantial evidence.
New evidence of wrongdoing
If litigants uncover new evidence of wrongdoing that they believe altered the outcome of a trial court judgment, can they introduce this evidence on appeal?
As a rule, the possibility of introducing new evidence at the appellate level is limited to unrestricted appeals. Nevertheless, under the right to defence during trial, the litigants are entitled to introduce new evidence on appeal because of judicial wrongdoing when considering that evidence at the first-instance level. The litigants should also prove that the evidence is crucial for deciding the case in a different manner.
Likewise, it is possible to allege new facts. In this case, the party should also prove that relation of the new fact with the first-instance allegations and the important role it plays for deciding the case.
New legal arguments
May parties raise new legal arguments on appeal?
Litigants have considerable discretion to raise new legal arguments in ‘unrestricted appeals’. Furthermore, they may introduce new facts and evidence. However, in ‘restricted appeals’, litigants are not entitled to exercise these prerogatives.
Costs, settlement and funding
What are the rules regarding attorneys’ fees and costs on appeal?
In a judicial process, parties must principally pay two different types of costs: attorneys’ and experts’ fees, and a court filing fee. At the end, these costs must be paid by the party that loses the trial. Nevertheless, as the court filing fee must generally be paid before initiating a judicial claim, in the case that the claimant’s claim is upheld, the respondent must reimburse the claimant the court tax.
Each of the parties must pay for its attorneys’ fees. Attorneys’ fees are ruled by the local laws of each jurisdiction and, at the federal level, by National Law No. 21.839.
For its part, the court tax (that is a percentage of the claim amount) is also ruled by the local laws of each jurisdiction. However, court filing fees of cases that are brought before the federal courts and the local courts of the city of Buenos Aires are ruled by Law No. 23898 (which states a court tax of 3 per cent of the amount of the claim at hand). The National Civil and Commercial Procedural Code states that the lack of payment of the court filing fee shall not impede in any case the commencement of the appeal proceeding. On the contrary, the National Court of Justice ascertained that it is necessary to pay the court filing fees in order to apply for leave to appeal.
In Argentina, there is also a possibility for indigent people to apply for the benefit to waive the cost requirement to litigate.
Settlement of first instance judgment after appeal lodged
Can parties enter into a settlement agreement to vacate the trial court judgment after an appeal has been taken?
The parties to a procedure are allowed to enter into a settlement agreement even if the first-instance court has already given leave to appeal. The parties are free to determine the content and scope of the agreement but they cannot agree upon public policy principles.
Limits on settlement after commencement of appeal
Are there any limits on settlement once an appeal has been taken?
See question 23.
May third parties fund appeals?
There is no regulation regarding third-party funding.
Disclosure of litigation funding
If litigation funding is permitted in an appeal, must funding sources be disclosed to the court or other parties to the litigation?
There is no regulation regarding third-party funding.
Judgments, relief and non-parties
Must appellate courts in your country write decisions explaining their rulings? Can the courts designate the precedential effect of their decisions?
According to the constitutional principles, any ruling - including those delivering a decision on an appeal - must be a reasoned judgment. The judgment’s content must, therefore, entail the legal grounds and law enforcement performed by the court to come to that resolution.
Among the judgment’s grounds, the case law precedents have a major role to play, in particular, the case law issued by the Supreme Court of Justice or the federal courts of appeal. In this regard, it has been argued that it is lawful to refer to the grounds contained in a former judgment provided that the cases are similar.
Will the appellate courts in your country consider submissions from non-parties?
The Supreme Court of Justice has enacted Resolution No. 7/13, which regulates submissions from non-parties. Nevertheless, there is no regulation for lower courts.
What are the ordinary forms of relief that can be rendered by an appellate court in a civil dispute?
The appellate court decision has to be clear and positive. In other words, it has to - fully or partially - uphold or reject the claim and the counterclaim. If the claim is upheld, the court must render a specific statement by delivering a new judgment on the substance of the case that can be enforced. If the claim is declined, the judgment must reject the plaintiff’s claim.