Preliminary Bill for Class Actions

As mentioned in Marval News #176, in May 2018, within the framework of the Justice 2020 program, the Argentine Ministry of Justice and Human Rights presented a Preliminary Bill for Class Actions.

The Justice 2020 initiative of presenting a Preliminary Bill on such an important matter for our society is welcome. It is also positive that the Preliminary Bill has been included in the Justice 2020 platform to receive comments from civilian society. Let us bear in mind that, since 2009, when the Argentine Supreme Court (the “CSJN” after its acronym in Spanish) recognized the right to file this sort of actions in the “Halabi” decision, it also ordered the Argentine Congress to regulate them (Marval News #81). After that ruling, the CSJN created the Public Registry of Collective Actions and the Regulation for Class Actions’ Performance through Resolutions 32/2014 and 12/2016, respectively (Marval News #160).

The main issues addressed by the Preliminary Bill are as follows:

1. The admissibility requirements for a class action and adequate representation for NGOs. The fulfillment of those requirements must be verified by the judge before being served to the defendant.
2. Competence. As general rule is established that ordinary justice will be competent for hearing class actions, with the exception of cases in which the intervention of federal justice applies, on account of the matter or the person. Specifically, the jurisdiction factor of both parties to establish federal competence has been ruled out.
3. Class certification. It has been proposed that the certification of the class should be rendered prior to the registration of the case in the Class Actions Register and before being served to the defendant.
4. Third-party intervention. A proposal has been made for admitting third-party intervention until the preliminary hearing is held. Regulation of the intervention of the amicus curiae has also been proposed.
5. Lack of prosecution. A one-year deadline has been considered for first instance courts, and 6 months for appeal courts for later instances.
6. Precautionary measures. It has been established that a judge must rule on his or her competence before granting precautionary measures, in addition to the regulation of specific admissibility requirements.
7. Court fees and costs. Actions brought in defense of collective rights are exempt from court fees. It has been proposed that the notification costs must be borne by the plaintiff.
8. Ruling. The final ruling has effects over all class members who did not exercise their “opt out” option.

Some of these points, such as competence and adequate representation criteria have generated  heated discussion in the Justice 2020 platform.  Next steps are for the Preliminary Bill to be debated in the Argentine Congress, and subsequently to bring to completion the regulation of this type of suit.