Civil and Commercial Procedural Code: Preliminary Draft of Partial Reform

The brand-new Preliminary Draft, recently presented within the framework of the “Justice 2020" Program, must still travel a long parliamentary road, but it should be highlighted that several of its proposals are innovative.

This is a partial reform, since several rules are maintained. It contains 667 articles which are divided into five volumes (as opposed to 784 articles and seven volumes of the current code).

The Preliminary Draft seeks to achieve the immediacy of the judge with the intervening parties and the elements of the file.

It also aims to concentrate jurisdictional activity, as it adds orality to the procedure and hearings.

Following are the main changes:

1. The disqualification without cause expression is eliminated.
2. Only the first service to the party, third party summons and service to those who have not been held as parties to the process can be done by means of “paper” judicial notice.
3. Communications addressed to foreign judicial authorities will be made by judicial order (in contrast to the cumbersome letter rogatory).
4. A subsequent hearing (“audiencia de vista de causa”) is incorporated to the process. It must be led by the judge. In this hearing lawyers may interrogate the other party, the witnesses and the experts. The rest of the evidence produced before this stage must be filed up to10 days before the hearing.
5. Expert evidence will be the remit of a unique expert witness appointed by common agreement between the parties, and if no agreement is made, this decision will be taken by the judge.
6. The request for clarifications to the experts must be done during the hearing of the case. Consultants may also attend  the hearing.
7. Burden of proof is also introduced by the Preliminary Draft. This change was influenced by different regulations (such as the Argentine Civil and Commercial Code and the Consumer Defense Law).
8. The minimum age required to be a witness is reduced to thirteen years. Relatives by blood or marriage, past or present, spouse or partner  may be put forward as witnesses. Nevertheless, they can request not to declare.
9. The term to file a clarifying/reversal complaint is 5 days and 15 days for the appeal against final judgments (which must be grounded). The term for other appeals is 5 days.
10. An exceptional appeal for review (in extremis) is included.
11. The following trials are established: The Ordinary Trial by Hearings (“Proceso Ordinario por Audiencias”) (if there is not a special trial provided) and the Immediate Justice Trial (“Proceso de Justicia Inmediata”).
12. The term for answering the lawsuit (Ordinary Trial by Hearings) is increased to 30 days.

To sum up, we consider that the Drafting Committee’s proposal to amend the current Procedural Code by applying new technologies to the trial process is timely and appropriate. Nevertheless, we believe that before the law is passed, it should be debated in the Argentine Congress so that the most suitable amendment of the code is adopted.