Bond for Court Costs and Fees: Back to Previous Criterion

On November 11, 2024, a majority vote in the proceedings “Crocs Inc. c/ Benítez, Natalia Noemí y Otro s/ Cese de uso de marcas. Daños y perjuicios” affirmed the rejection of the bond for court costs and fees that the defendants had requested. The defendants had argued that, since the plaintiff was a foreign company with no domicile or real estate assets in Argentina, it was appropriate to require a surety to guarantee the costs of the proceedings, pursuant to article 348 of the Procedural Code.

In its decision, Division I recalled that, before the Civil and Commercial Code came into force, article 348 of the Procedural Code was interpreted restrictively. However, article 2610 of the current Civil and Commercial Code introduced a significant shift, by establishing the principle of equality in procedural treatment.

This principle guarantees equal access to Argentine jurisdiction for individuals and legal entities, whether domestic or foreign. It also prohibits imposing bonds, deposits, or other similar requirements based on an individual’s status as a citizen or resident of another state. This principle aligns with the Argentine Constitution (arts. 16, 18, and 20) and various international treaties ratified by Argentina, such as the Las Leñas Protocol and the Hague Convention on Civil Procedure. In this case, since the company was domiciled in the United States of America, Division I affirmed the first instance court’s decision to reject the defendants’ request.

Justice Florencia Nallar dissented, arguing that article 2610 of the Civil and Commercial Code does not override the application of article 348 of the Procedural Code. According to her interpretation, the bond for court costs and fees defense does not depend on the nationality of the plaintiff, but rather on the lack of domicile or assets in Argentina. Therefore, it should be applied in such cases.

It is worth noting that, until late 2020, Division I was the only division within the Federal Civil and Commercial Court of the City of Buenos Aires to consider that the bond for court costs and fees had lost its validity due to the reforms the Civil and Commercial Code introduced. However, after the vacancies of two members and the appointment of Justices Perozziello Vizier and Nallar in July 2021, this was the first ruling in which the newly constituted Division addressed the issue.