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Are they popular and what are the current trends?

The recognition of such actions has increased since the constitutional reform ofwhich suggested that consumer associations and the protection of their collective rights was needed. The reform also indicated that collective representation could be used to request judicial relief by way of expedited ” amparo ” actions that is constitutional challenges or human rights claims. Currently, collective actions are partially regulated by specific rules such as the Consumer Protection Act, while the new Civil and Commercial Code which will come into force on 1 August will expressly recognise the existence of collective rights.

Consequently, collective rights will be formally recognised in law, and the courts will also recognise the validity of actions aimed at protecting these rights.

Within this framework collective actions can be defined as administrative proceedings or judicial action filed by an individual or an entity entitled to represent a group and their collective rights. However, it can be difficult to determine whether there are collective rights involved in a certain dispute.

To that end, the Supreme Court of Justice has issued guidance as to what is necessary for a collective action. Collective claims which are intended to safeguard collective goods for example, environmental claims. Collective claims concerning a group of individuals who act in order to defend their common interest in connection with individual rights such as a group of consumers requesting judicial relief in the case of burdensome obligations imposed by the supplier in consumer contracts.

Following on from this, the Padec v Swiss Medical S. The Supreme Court rejected the Padec claim by stating that collective actions require:. The existence of a common factual situation and result which was absent in this case, since consumers may be differently impacted by price increases. The protection of collective rights which cannot be sufficiently protected by individual actions. Industrial Argentina y otros inand following the Halabi case five years previously, the Supreme Court considered that it was reasonable to request that those who initiated collective actions must submit:.

Objective evidence to verify that the “class” exists. That such a class can be clearly determined within the initial stage of the claim. That there are reasons to argue that the protection of the collective rights would be compromised if the action is not admitted. Current trends When the new Civil and Commercial Code comes into force on 1 Augustthe law regulating collective actions will be reinforced.

Article 14 of the Code not only recognises the existence of collective actions but also states that the law will not allow the exercise of acts which can negatively affect the environment and collective rights in general.

Therefore, the current trend in Argentina is to further implement government policies in order to protect collective rights and claims. Principal sources of law Argentina has not yet implemented a comprehensive legal and procedural framework applicable to collective actions. However, some procedural rules applicable to collective actions are contained in sector-specific legislation, such as the Consumer Protection Act. In addition, the courts have played an important role in the development of class actions, since judges have outlined the main features of collective actions see Question 1.

Impact of Civil and Commercial Code on energy and natural resources sector

Principal institutions To protect collective rights, a party can initiate either a court action or an administrative proceeding. Some departments of the Federal Government, as well as some local governments, have jurisdiction to decide on collective rights in matters related to consumer protection, utilities, the financial market and some social security aspects.

In addition, the Federal Ombudsman Defensor del Pueblo has legal standing to instigate collective actions in matters related to the protection of human rights and other constitutional rights. Any decision adopted by an administrative authority is subject to further judicial review.

In most cases, judicial review covers two levels of appeal until a final decision is adopted by the Supreme Court in its capacity of final interpreter of the Constitution see Question Different mechanisms Collective actions can be brought before the competent courts or administrative authorities by:. Any legal entity with authority to represent collective rights, such as consumer associations, NGOs, chambers or other similar associations. An individual entitled to protect collective rights, such as a proxy or anyone having obtained proper authorisation to represent a class.

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The Ombudsman for the defence of constitutional rights. The Public Prosecutor Office in cases of judicial review to control the legitimacy of administrative acts. See Questions 4 and 5. Collective actions are permitted in all areas of law provided that there is a collective interest involved in the claim.

Therefore, collective actions are commonly used in connection with environmental claims and consumer protection rights, such as product liability, increases in utility rates, financial services, unilateral changes of contractual provisions and data privacy. However, collective actions cannot be used when a number of individuals are affected by the same situation but in a different manner.

In other words, collective actions require a collective interest and, to that end, the “class” must be part of a common factual situation and result. Collective actions are subject to the time limits provided in the Civil and Commercial Code or in specific legislation depending on the type of action to be brought.

In general, limitation periods range between five and three years.

The statute of limitation is five years for a breach of contract and tort. The time runs from the date of the contractual breach or from the date when the damage was suffered in tort. Claims made under the Lry Protection Act have a limitation period of three years.

Standing and procedural framework for bringing an action Standing. Definition of class The class for collective actions must have a common grievance and seek the same relief beneficial to all. In addition, the Supreme Court has held that the defendants’ conduct should have had the same consequences for all the class members. In other words, courts require a uniform grievance for the entire group which allows the possibility of solving the claim through a single decision.

Potential claimant As Argentina has not passed a comprehensive legal regime for collective actions, defining and identifying potential claimants for class actions can be complicated.

Some guidelines can be found in case law, although similar situations do not always receive the same treatment. For example, there is no agreement as to whether public officials, such as mayors or deputies, have legal standing to bring collective actions. In some cases, courts have recognised the legal standing of public officials to seek protection of consumers’ rights, while in others courts have been reluctant to recognise the standing of deputies intending to apply lfy a judicial review of government measures affecting collective rights.

If a claim is brought by an individual or entity let to represent a group or class, this representation should be evidenced through an appropriate document such as a power of attorney or similar instrument proving that the representative is entitled to act on behalf of the stakeholders. On environmental matters it is possible for a single individual, lry a reduced group, to have legal standing to represent a whole community allegedly affected by pollution or some other environmental issue.

However, there leey no consistency in these cases. Collective representation 2583 environmental matters leey been allowed when there is a claim against a polluter or in circumstances which may affect or may damage the environment. Conversely, collective representation has also not been accepted for claims involving individual damage caused by pollution or other environmental causes. However, expanding standing to represent collective rights does not leey the following problems regarding the scope of the ruling and whether it should be applicable to:.

Those who are included in a class even if they had no participation in connection with the 25783. Only those who are represented in the action. Those who have a substantial legal relationship with the object of the process that is, parties who have an interest and will benefit from the outcome of the claim, even if they did not take part in the lawsuit.

Impact of Civil and Commercial Code on energy and natural resources sector – Lexology

The last option seems to be the most accepted by case law, although courts have not been uniform in this. Claimants outside the jurisdiction Generally claims cannot be brought on behalf of individuals from other jurisdictions. The rules for determining the court’s jurisdiction are regulated in the applicable Procedural Codes, which means there can be no opportunity for forum shopping.

Professional claimants There are no legal provisions relating to professional commercial claimants buying consumers’ claims. This is also not a common practice in Argentina. Qualification, joinder and test cases. What are the key procedural elements for maintaining a case as a class action? Therefore, in the absence of specific rules, judges examine the appropriateness of the action on a case-by-case basis, and verify that whoever initiates the lawsuit has standing to do so.

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However, determining the existence of a class is a difficult task and as a result there is large number of court decisions addressing this issue. In general terms, judges must consider, for lye purposes of determining whether a claimant has standing to represent a class, whether the claim is based on collective rights.

This implies that the claim must be focused on common purposes and not on individual petitions Halabi see Question 1. Alternatively, for claims involving homogenous individual interests, the scope of the claim will key to be based on the collective aspects related to those individual homogenous rights.

These sorts of collective claims typically arise in relation to environmental, health or consumption issues, or in lfy involving certain protected groups of people. A single claimant may be key to initiate a collective action as long as he or she can demonstrate that a collective interest is involved. In fact, one of the first rulings in this area was in a class action brought by an individual invoking his capacity as a “neighbour” of a certain village.

This decision was later confirmed by the National Chamber of Appeals, noting that the action could be filed by any affected individual seeking protection for the environment. Joining other claimants Due oey the lack of procedural rules applicable in collective actions, there are no specific rules for initiating collective actions, and the Supreme Court has held that once standing has been recognised for the representation of collective rights there is no need to accept other individual claimants to join in the lawsuit.

However, in a recent case a court considered that TV advertising was needed in order to inform all possible affected individuals that a collective action had been filed against a telecommunications company Adecua c. According to the Consumer Protection Act, before a claim is started or if a settlement is agreed, the Public Prosecutor must give an opinion whether the collective action will or will not affect consumer interests.

The opinion will also consider whether consumers are easily able to opt out of the claim.

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The decision to accept the claim will result in res judicata for the respondent and for all consumers or users who are involved in the claim, except for those who had opted out.

If the lawsuit involves a financial settlement, the court must establish guidelines for financial compensation based on the principle of full compensation.

If the claim results in restitution of sums of money, the money will be paid through the same means that they were received from the consumer. Courts will provide guidance on 255873 way compensation should be paid for the benefit of the entire affected group. Leu cases Test cases are not used in Argentina.

Each case must be resolved according to the facts and applicable 2587. However, when cases are similar, courts leh their decisions on precedents within the jurisdiction, and also under the Federal Supreme Court’s jurisprudence. What is the usual procedural timetable for a case?

Since there is no procedural framework for collective actions, the procedural timetable will vary depending on each case and area of law it is dealing with see Questions to 3. However, since the filing of a collective action before courts can be terminated through an appeal before the Supreme Federal Court, the usual timetable for a case may take three to six years.

Effect of the area of law lwy the procedural system. The applicable procedural system will vary depending on the statute of limitation, and the type of collective interests being protected by the collective action see Question 3. The Argentine Constitution states that amparo actions involving environmental or consumer rights of a collective nature must have a specific and efficient procedural system.

Funding and costs Funding. Lawyers are leu to act on a standard fee basis under local laws or permitted success fee agreements. In general, lawyers’ fees are estimated by courts at the end of each stage of the case, based on the minimum and maximum fees stated in the local Lawyers’ Fees Acts. These laws proportionally estimate lawyers’ fees according to their work and their performance during a trial. In such cases, lawyers must pay lry judicial costs, unless otherwise agreed with their clients.