Collective Actions: New Rules

The Argentine Supreme Court of Justice (“ASCJ”) provided more rules for regulating collective actions in national and federal courts by issuing Regulation No. 12/2016 (the “Regulation”).The ASCJ delved more deeply into the procedural rules already created by the ASCJ’s Regulation No. 32/2014 to ensure the practical efficiency of the Public Registry of Collective Actions (the “Registry”) and to achieve its original objectives. Apparently, the experience accumulated since the Registry came into force, in addition to the contributions and suggestions provided by both courts and parties to collective claims registered, reinforced the need to clarify some issues and set up rules to organize those cases.

The new Regulation has the following provisions:

i) It is  applicable to collective actions other than environmental or criminal cases tried before national or federal courts from the first business day of October 2016 and until the Congress passes a law to regulate on procedural rules for collective actions. Consequently, if a Class Action Law is passed by the Congress before October 2016 the Regulation will not enter into force.

ii) It requires that both collective claims and/or class actions must be complied with by the plaintiff when initiating the complaint.

iii) The court may request further clarifications from the plaintiff until the requirements are complied with and is entitled to adopt any measures for organizing the proceedings. Even if the claim is not filed as collective, the court may readapt the proceedings as such if the requirements of Regulation No. 32/2014 of the ASCJ are met.

iv) The court must issue a “Resolution of Registration” (“Resolución de Inscripción”) before ordering service of the complaint to defendants. The Resolution of Registration must decide:

1. the provisional identification of the class;
2. the subject-matter of the claim;
3. the identification of defendants to the case; and
4. order registration before the Registry.

The Resolution of Registration is not subject for appeal.

v) Collective proceedings initiated in different courts with identical or similar objectives must be joined with the proceeding first notified to the Registry.

vi) After the defendant answers the complaint, together with the decision of the preliminary motions or before the evidence hearing, the court must issue a Certification Order (“Certificación del Colectivo”). The Certification Order must decide:

1. to ratify or modify as needed the Resolution of Registration; and
2. to determine the best notice that is practicable under the circumstances to all the people who might have an interest in the result of the litigation.

The Certification Order is subject to appeal.

vii) Precautionary measures granted in a collective claim which is not yet registered and any other important decision (i.e. settlement agreement; final decision, etc.) must be informed to the Registry.

The ASCJ invited higher courts of the provinces and the City of Buenos Aires to enter into agreements to share recorded information and facilitate reciprocal and unlimited access to their respective registers.