Reinstatement of the Regime and Binding Nature of Plenary Rulings

Law No. 27,500 repealed the Cassation regime established by Law No. 26,853, which had never entered into effect due to lack of implementation of the Courts of Cassation that the referred law had ordered.

I.- Introduction

On January 10, 2019, Law No. 27,500 came into force, and amended Sections 288 to 303 of the National Civil and Commercial Procedural Code (the “Procedural Code”), and reinstated the Plenary Rulings regime and its binding nature for: (i) the Appeals Courts that are part of the National or Federal Court of Appeals that issues the plenary ruling; and (ii) the First Instance Courts, in respect of which that Court of Appeals is the superior court; reinstating Sections 288 to 301 of the Procedural Code to its original version, without altering its content.

Law No. 27,500 partially repeals Law No. 26,853 (with the exception of Section 13, referred to the composition of the Argentine Supreme Court) which in 2013 had: (i) repealed the regime and binding nature of plenary rulings; (ii) created Federal and National Courts of Cassation with specialization on Civil and Commercial Matters, Labor and Social Security Matters, and Contentious Administrative Federal Matters; and (iii) created the cassation, unconstitutionality, and revision appeal remedies, as described in Marval News # 128 (see Argentine Congress enacted Law No. 26,853 that creates Courts of Cassation and provides for New Constituted Appeal Remedies).

The cassation regime on Civil and Commercial, Labor and Social Security and Contentious Administrative Federal matters, was never implemented since it was subject to the prior installation and operation of the Federal and National Courts of Cassation created by Law N° 26,853 (as provided by CSJN Resolution No. 23/2013). Moreover, in the explanatory statement of Law No. 27,500, it was stated that "implementing Law No. 26,853 would only increase the delay in judicial proceedings, which per se are excessively long".

In the framework of this scenario, during the period that Law No. 26,853 was in force (5/17/2013 - 1/9/2019), some of the National and Court of Appeals decided to maintain: (i) the binding nature of the plenary precedents issued prior to the abolition of Section 303 of the Procedural Code (as provided by Section 12 of Law 26,853); and (ii) the validity of the “Inapplicability of the Law Remedy”; all this until the referred –in the previous paragraph- Cassation Courts were constituted.

In order to clarify the situation of the plenary rulings that were issued while Law No. 26,853 was in force, Law No. 27,500 provides that "they will maintain their binding nature" (Sec. 6).

II.- Main characteristics of the plenary rulings regime

As Law No. 27,500 reinstates Sections 288 to 301 of the Procedural Code to their original version, let us briefly recall their main guidelines.

 

• Binding nature of the plenary precedent: The interpretation of law established in a plenary ruling is binding for the Court of Appeals itself, and for the first instance courts in respect of which that Court is the superior court, notwithstanding the above, judges might leave their personal opinion. The plenary precedent may only be modified by a new plenary judgment.

 

• “Inapplicability of the Law Remedy”: A procedural remedy which allows interested parties to challenge a second instance final judgment, on the grounds that it contradicts the doctrine established by a judicial precedent issued by any of the other courts of the same Court , in the 10 years prior to the date of the challenged ruling. The remedy must be filed within a 10 days term from the notification of the judgment, and before the Appeals Court that issued it. If admitted, the remedy will be granted with suspensive effects and the docket will be sent to the President of the Court , so as to carry on the applicable procedure. The decision on the admissibility of the remedy is not subject to be challenged.

 

• Self-summoning: At the initiative of any of its courts, a National or Court of Appeals  may constitute as plenary court to unify legal doctrines and avoid contradictory precedents. The summons request must be approved by an absolute majority of the judges of the Court .

III.- Final Comment

By reinstating the plenary rulings regime, Law No. 27,500 puts an end to the legal loophole that was created by the lack of implementation of the Cassation Courts. By so doing it recovers a degree of certainty regarding the validity of plenary precedents, issued through several decades, that had been lost under the previous system.