Resolution that Required Having Initiated Mediation in accordance with Law No. 26,993 Revoked

On February 24, 2017, Division III of the National Court of Appeals in Civil and Commercial Matters (hereinafter, the “Court of Appeals”) admitted the appeal of the plaintiff and revoked the decision of the lower court in re “Kohan Berta Ester v American Airlines, Inc. re Breach of contract”, file No. 29,419/16.

Plaintiffs sought damages resulting from a breach of an air transport contract, requiring the imposition of punitive damages on the service provider. Punitive damages are set forth under article 52 bis of the Consumer Protection Act No. 24,240, which states that the judge may apply to the supplier, at the request of the damaged party, a civil penalty in favor of the consumer in respect of punitive damages, irrespective of any other compensation that may apply for breach of legal or contractual obligations.

Prior to the judicial proceedings, the parties had held a mediation hearing according to the Mandatory Prejudicial Mediation Act No. 26,589, but had failed to reach an agreement then.

The first instance judge, however, ordered the plaintiff to prove that they had initiated the mediation process provided by another statute, the Consumer Relations Dispute Resolution System Act No. 26,993, pursuant to article 2, under penalty of archiving the proceedings. This act provides that claims on individual rights of consumers or users related to conflicts in consumer relationships whose amount does not exceed the maximum value established, must be held mandatorily before the Consumer Relationships Prior Conciliation Service (“COPREC” after its acronym in Spanish.)

The plaintiff challenged the decision, alleging deprivation of justice. She explained that the COPREC did not admit her requests for mandatory mediation, refusing its jurisdiction and indicating that the mediation should be conducted before the Argentine Civil Aviation Administration (“ANAC” after its acronym in Spanish) because it was a claim related to a contract of air carriage. However, ANAC also refused its jurisdiction, stating that the case should be conducted before the Federal Justice.

The first instance judge kept his decision and granted the subsidy appeal filed , so the case was submitted to the Court of Appeals.

The Court of Appeals recalled that the consumer relations to which article 2 of the Law No. 26,993 refers, according to the provision itself, are those governed by the Law of Consumer Protection No. 24,240. In addition, it emphasized that the final paragraph of the mentioned article 2 establishes that in cases of consumer relations regulated by other standards, the consumer or user can file his/her claim before the COPREC or the authority instituted by the specific legislation (the underlining and italics belong to the Court of Appeals.)

The Court of Appeals found that the plaintiff’s attempts  to hold mediation with the COPREC and ANAC had been proven, and that both entities had refused  for reasons of jurisdiction. The Court also took into account that the mandatory prejudicial mediation was carried out according to the Law No. 26,589, with no agreement reached by the parties.