Abstract
Following the questionnaire proposed by the general reporter, this chapter offers an overview of contracts law, consumers regulations, environmental dispositions, labour law and corporate law from a Private International Law perspective, as they regulate the activities of corporations and their duties regarding corporate social responsibility and Human rights law. In particular, the Argentinean report stresses its insertion in the Organization of American States system of conventions and other regional dispositions such as Mercosur, as well as the Private International Law sections included in domestic law. The national system presents strong links with Human rights at a constitutional level, which generates profound and direct impacts within private law regulations and contribute to its interpretative richness and performative capacity. In that sense, the report also analyses some aspects of the recently reformed Civil and Commercial Code that took into consideration the solutions offered by Human Rights instruments with constitutional standing and by international treaties with supralegal status, as a manifestation of the interrelation of public and private branches of law, based on the constitutionalization process of private law.
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Notes
- 1.
The Constitutional Convention of 1957, after the derogation of 1949s Constitution, was compelled by social pressure to incorporate some rules of social constitutionalism. In subsequent years, economic and social rights gained momentum in two important hallmark events: the recovery of democracy and the constitution as a legally enforceable instrument, and the major reform of our National Constitution in 1994. See Dalla Vía (2015).
- 2.
Section 75 of Argentine Constitution: Congress shall be empowered to: To approve or reject treaties entered into with other nations and international organizations, and concordats with the Holy See. Treaties and concordats have a higher standing than laws. The following instruments, in their full force and applicability, have constitutional standing, do no repeal any section of the First Part of this Constitution and are to be understood as complementary of the rights and guarantees recognized hereunder: the American Declaration of the Rights and Duties of Man; the Universal Declaration of Human Rights; the American Convention on Human Rights; the International Covenant on Economic, Social and Cultural Rights; the International Covenant on Civil and Political Rights and its Optional Protocol; the Convention on the Prevention and Punishment of Genocide; the International Convention on the Elimination of all Forms of Racial Discrimination; the Convention on the Elimination of all Forms of Discrimination against Women; the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment; the Convention on the Rights of the Child… .” In 2003, the Inter-American Convention on Enforced Disappearance of Persons and the Convention on the Non-Applicability of Statutory Limitations to War Crimes. Finally, the Convention on the Rights of Persons with Disabilities and its Optional Protocol was incorporated in 2008 (Law No. 26378).
- 3.
Section 41 of our National Constitution. It is further stated: “Environmental damage shall generate the duty to repair as a matter of priority under the terms established by law. Authorities shall make provision for the protection of this right, the rational use of natural resources, for the preservation of the natural and cultural patrimony and of biological diversity, and shall also provide for the right to environmental information and education. The Nation shall be accountable for enacting the rules ensuring minimum protection standards, and provinces shall be accountable for the enactment of the necessary complementary rules, without altering the local jurisdictional powers of each province. Dangerous or potentially dangerous wastes and of radioactive materials shall be precluded from accessing national territory.”
- 4.
Section 42 of our National Constitution, second paragraph stipulates that: “Authorities shall provide for the protection of said rights, the education for the purposes of consumption and the consumption, the defence of competition against any kind of market distortions, the control of natural and legal monopolies, and for the control of quality and efficiency of public utilities, and the creation of consumer and users associations.”
- 5.
- 6.
Communication from the European commission of 2 July 2002 concerning Corporate Social Responsibility: A business contribution to Sustainable Development [COM (2002) 347 final].
- 7.
La Red is currently composed of an Executive Secretariat, made up of the Argentine Chamber of Commerce and Services, Cimeb Medicina Biológica, Deloitte Argentina, Randstad Argentina and Renault Argentina. Actions are directed towards raising awareness about the issue, aligning business models with Sustainable Development Objectives, strengthening transparency frameworks and corporate training in development issues.
- 8.
Out of this global number, 69% belongs to companies, el 14% to NGOs, 9% to Chambers, 3% to Academic Institutions, 3% to Governmental Organizations and 2% to other adherents. Information was consulted on 15/11/2018 at www.pactoglobal.org.ar/wp-content/uploads/2014/11/Brochure_estad%2D%2Dsticas.pdf.
- 9.
NGO responsible both for providing consulting and ranking status to companies that are expecting to take part of this initiative.
- 10.
They have been defined as “companies that produce certain goods and services through innovative ideas and that bring a positive material effect on our society and environment. They are additionally involved in high commitment practices with their employees, suppliers, clients and overall environment (…) It is a new business model, under the standards of transparency in their social and environmental management, and, under such light, the notion of success is not measured by dividends but by an increased positive material impact on our society and the environment”. See Dubois (2016).
- 11.
In the institutional website of the organization (http://sistemab.org/) it is possible to make consultations about certification rules for a company based on a set of 200 questions. Procedure is detailed in the digital platform: http://sistemab.org/como-me-sumo/.
- 12.
This new legal entity has three main defining characteristics: (a) a broader corporate object or purpose, in the sense that they seek a profit and also make sure that businesses and activities have a positive impact in the community and environment; (b) Directors’ duties are equally broadened, who must consider medium and long-term goals of those players involved in the business, including partners, employees, consumers, the environment, the community, while (c) transparency standards are incorporated and public reports are offered. “Triple-impact enterprises are pursuing legal recognition in Argentina”. La Nación, 09/07/2017, available at: http://www.lanacion.com.ar/2040821-las-empresas-de-triple-impacto-van-tras-su-reconocimiento-legal-en-la-argentina.
- 13.
- 14.
See Araldi et al. (2014).
- 15.
The bill was passed on November 8, 2017 and entered in force on December 1, 2017. Full text available in: http://servicios.infoleg.gob.ar/infolegInternet/verNorma.do?id=296846.
- 16.
Signed through OECD on December 17, 1997, and approved by Argentine enactment, law No. 25319, B.O. 18/10/2000. The Argentine Republic has recently received recommendations and comments by the OECD Working Group on Bribery. For further details, please read: “Phase 3bis report on implementing the OECD anti-bribery convention in Argentina”, available at: http://www.oecd.org/corruption/anti-bribery/Argentina-Phase-3bis-Report-ENG.pdf.
- 17.
In April 2017, as a celebration of the National Day of Social Responsibility, an event was organized and promoted by the Argentine Chamber of Commerce and Services and the International Chamber of Commerce, together with representatives of the public and private sector. The aim was to discuss business models that respect the principles of social responsibility and sustainable development. The companies that participated were Pan American Energy, Toyota Argentina and Tonka S.A (medium-sized company).
- 18.
- 19.
According to the information provided by the Procedures Manual of the Argentine NCP. As per OECD annual reports, Argentine NP was set up in 2000.
- 20.
Information provided in the OECD annual report about NCP as of 2014. No reference was made in subsequent public documents in that respect.
- 21.
According to information available in OECD annual report 2017, available at: http://mneguidelines.oecd.org/2017-Annual-Report-MNE-Guidelines-EN.pdf.
- 22.
- 23.
By the time this report was submitted, the NCP was being revised by peers and the website had been made unavailable for the public until further notice.
- 24.
More information available at: https://www.argentina.gob.ar/derechoshumanos/proteccion/ddhh-y-empresas.
- 25.
On December 12, 2017, the Argentine government published the first “National Action Plan on Human Rights, 2017–2020”, available at: https://www.argentina.gob.ar/plan-nacional-de-accion-en-derechos-humanos. It is the result of “coordinated work and consensus with all the ministries, to address the commitments that each area of government defined as priorities in the field of human rights. It is also the product of careful listening to the ideas of civil society organizations and the contributions and recommendations of the different treaty committees, reports and working groups of the United Nations High Commissioner for Human Rights” (excerpt from cited document).
- 26.
The progress of every goal of the NAPHR, as well as the actions that are being undertaken to fulfil them can be tracked trough: https://trello.com/plannacionalenddhh.
- 27.
- 28.
Grounds for the preliminary bill on Civil and Commercial Code of the Argentine Republic. Available at: http://www.nuevocodigocivil.com/wp-content/uploads/2015/02/5-Fundamentos-del-Proyecto.pdf. The highlighted fragment was contributed by us.
- 29.
Such is the case of employment contracts, which we will address in the next paragraphs.
- 30.
Such is the vision of the Chair of CCC Drafting Committee, who stresses the role being played by Preliminary Title rules on the task of judges. “These are a set of guidelines for judicial decision making, which is to begin deductively, abiding by precedents and by ensuring consistence with all legal rules, while also providing sufficiently reasonable explanations”. See Lorenzetti (2015).
- 31.
Section 2: “Interpretation: Laws are to be interpreted based on wording, purposes, analogous laws, provisions arising from human rights treaties, legal principles and values, in a manner consistent with the whole legal regime”.
- 32.
Section 3: “The judge must hear and decide: those issues that have been subjected to his/her jurisdictional power, through a reasonably grounded decision”.
- 33.
Art. 14: “Individual rights and rights with collective impact: This Code shall recognize: a) individual rights; b) rights with a collective incidence. Law shall not enable the abusive exercise of individual rights in case they may affect the environment and rights with collective impact.”
- 34.
Regulated as type of general contract under sections 984 and subsequent sections.
- 35.
See Lorenzetti (2016), pp. 238–239.
- 36.
In this regard, Ricardo Lorenzetti states, “one of the major changes in the reform to our Code is the fragmentation of the general type of contracts, which is original in comparative law. One Title addresses discretionary contracts while the other deals with consumption contracts, each of them with equal hierarchy, so that each specific type of contract will then be subsumed within one category or the other one” (Lorenzetti 2016, p. 233).
- 37.
Section 963 establishes the normative hierarchy in contract law, which is not to be confused with the rules for the exercise of dispute and material autonomy deriving from international contracts and contained in section 2651 of the CCC, as discussed in points 15 and subsequent sections.
- 38.
Art. 963. Normative hierarchy: “In the event of coincidence between this Code and a special law, the following normative hierarchy shall be applied: a) unavailable rules of the special law and this Code; b) rules derived from the specific contract; c) suppletory rules to the special law; d) suppletory rules to this Code”.
Art. 964. Integration of the contract: “The content of the contract shall merge with: a) unavailable rules, which are applied as a substitute of incompatible clauses; b) suppletory rules; c) customary practices and usages of the place where the contract was entered into, to the extent of their applicability because they have been declared binding by the parties or because they are regularly observed in the environment where the contract is executed, unless such enforcement is unreasonable”.
- 39.
Art. 7°: “Less favourable conditions. Nullity: Parties shall under no circumstance agree on conditions that are less favourable to employee than those of legal rules, collective bargaining conventions or arbitral award, or which are contrary to such legal rules. Actions of that nature shall be penalized according to section 44 herein”.
- 40.
Section 9: “The principle of the more favourable rule in favour of employee. In case of doubt as to the application of rules enacted by law or stipulated in a contract, the more favourable rule to employee shall prevail, and the set of rules governing each of the institutions of employment law. If there were a doubt as to the interpretation or scope of law or in weighing evidence in specific cases, judges or any law enforcement officer shall decide in the best interests of employee”.
- 41.
See answers to point 9, point 11 regarding the submission of employment controversies to arbitration, and point 12 regarding international jurisdiction rules, and point 16 with respect to law applicable to international cases.
- 42.
Section 1092: “Consumer relation. Consumer: It is the legal relation between a supplier and a consumer. Consumer is the natural or artificial person who purchases or uses, either for free or for value, goods or services as end user, either for his/her own benefit or of that of his/her family or social group. On a par with consumer shall be that who, even if he/she may have no involvement or does not take part a consumption relation, either acquires or uses goods or services, for free or for value, as end user, for his/her own benefit or that of his/her family or social group.”
- 43.
Art. 1093: “Consumer Contract: It is a contract entered into between a consumer or end user and a natural or artificial person who professionally or occasionally interacts with a manufacturing or services company, either run by the government or privately, and which intends to purchase, use or otherwise utilize goods or services by consumers or users, for private, family or social purposes”.
- 44.
1095: “Interpretation of consumer contracts: The contract shall be interpreted in the most favourable interests of consumer. In case the extent of obligations is not clear, a less harmful obligation shall be adopted”.
- 45.
1094: “Interpretation and normative hierarchy: Rules regulating consumption relations must be applied and interpreted in accordance with the consumer protection principle and access to sustainable development principle. In case of doubt as to the interpretation of this Code or special laws, the most favourable rule for consumer shall prevail”.
- 46.
Lorenzetti (2016), p. 331.
- 47.
1714: “Excessive punishment. In case the application of pecuniary, administrative, criminal or civil sanctions generates an unreasonable or excessive punishment, the judge must ascertain the quantum to the amount so that it is rendered as reasonable”.
- 48.
Art. 1709: “Normative hierarchy. In the event of coincidence of the legal rules of this Code and those of a special law in the area of torts, the following normative hierarchy shall be applied: a) the unavailable rules of this Code and those of the specific law; b) the autonomy of the will; c) the suppletory rules of the special law; d) the suppletory rules of this Code”.
- 49.
Section 1711: “Preventive action. The preventive action shall proceed whenever an action or omission causes damage to be foreseeable, to continue or to get aggravated. No attribution of liability factor must necessarily concur”.
- 50.
Section 1710: “Duty to prevent damages. Every person, as far as he or she is concerned, must do the following: a) refrain from causing an unjustified damage; b) adopt, according to good faith commitments, the reasonable measures to prevent the damage from occurring, or to mitigate its magnitude. In case those measures avoid or mitigate the magnitude of damage for which a third party would be liable, the person preventing damage shall be entitled to get a refund of the expenses incurred, pursuant to the rules of unjust enrichment; c) not to aggravate damage, if it has already been sustained”.
- 51.
Section 1712: “Legal standing: Those who provide proof of reasonable interest in the prevention of damage shall be entitled to get legal standing and be a party to the claim”.
- 52.
Section 1713: “Judgment: The judgment admitting the preventive action must decide, upon the request of a party or through court action per se, either permanently or temporarily, the duties to give, or refrain from doing, as the case may be. The judgment must also weigh the least restrictive criterion as possible and the more suitable means to ensure the efficacy in the pursuit of the goal”.
- 53.
“CCC acknowledges the favor victimae principle which tends to render the burden of proof lighter, in that sense the mere existence of damage fires an arrow against a category of subjects that are compelled to prove otherwise.
- 54.
They have been referred to as such in their inclusion to section 2599 of the New Civil and Commercial Code of Argentina (Book Six, Title IV, “Private International Law Rules”), which establishes: “Internationally imperative rules or rules of immediate enforcement in Argentine law shall prevail over the exercise of party autonomy and shall exclude the application of choice of governing law in a dispute or the choice of governing law made by the parties. When foreign laws are applicable, internationally imperative rules are also applicable, and if so required by legitimate interests, the effects of internationally imperative rules of third States evidencing close and manifestly relevant connections with the case may be recognized”.
- 55.
The Inter American Convention on General Private International Law, approved during the CIDIP II, held in Montevideo, Uruguay, in 1979. The Argentine Republic approved that Convention through the enactment of Law No. 22921 and deposited the instrument of ratification on 01/12/1983. As far as this report is concerned, the Oriental Republic of Uruguay deposited the instrument of ratification on 15/05/1980 and made a formal declaration in the sense that Article 5 of the Convention amounted to an authorization of Member States so that they, on well-grounded basis may “declare foreign law non applicable in case it results specifically, grossly and manifestly contrary to the principles of its public policy, for which case each State consents to its individual legal status”. See: Argentine case law in National Supreme Court of Justice, 12/11/1996, “Solá Jorge Vicente s/sucesión ab intestato”, Fallos 319: 2779.
- 56.
With the exception—as stated above—of the cases contemplated in sections 121 and 124 of BAL, which operate as policing rules in Private International Law.
- 57.
Section 2655 of CCC establishes the following: “Consumer contracts are governed by the law of the State where consumer resides in the following cases: a) if the conclusion of the contract was preceded by an offer or advertisement or business conducted within the State of residence of consumer and he/she has carried out all necessary actions for the conclusion of the contract; b) if the order was placed with supplier in the State of residence of consumer; c) if consumer was induced by supplier to move to a foreign State for the purposes of placing the order therein; d) if transport agreements, for a global price, include both transportation and hosting services. If these situations are not configured, consumer contracts shall be governed by the law of the country where the contract is performed. In case the place of performance cannot be determined, the governing law shall be that of the place where it was entered into”.
- 58.
Note 4 of this Report.
- 59.
The National Consumer Defence Association (Dirección Nacional de Defensa del Consumidor—https://www.argentina.gob.ar/defensadelconsumidor), is part of the Ministry of Production of the Executive Branch of the Nation, and its website includes all valid and standing mechanisms for the resolution of conflicts involving consumers and users. So far to date, positions to sit at the National Consumer Courts are still vacant and open to a competitive hiring process.
- 60.
Additional information can be found at: http://www.consumoprotegido.gob.ar/.
- 61.
Additional information regarding the arbitration system for consumers can be found at: https://www.argentina.gob.ar/produccion/consumidor/sistema-nacional-de-arbitraje-de-consumo.
- 62.
The summary of the cases shown below, as well as the proceedings and conclusions of the NCP are available at: https://www.mrecic.gov.ar/ocde/comunicados.
- 63.
The Act can be found in the official website for the Argentine legislation at: http://servicios.infoleg.gob.ar/infolegInternet/anexos/310000-314999/312719/norma.htm (in Spanish).
- 64.
Conclusion n° 3 of the Private International Law Section of the XXXth Meeting of the Argentine Association of International Law held in 2018, regarding the International Commercial Arbitration Act. The complete text of the Conclusions is available at: www.aadi.org.
- 65.
See Uzal (2018).
- 66.
Caivano (2018), pp. 4–5.
- 67.
Section 2603 CCC establishes, among other criteria, the possibility for Argentine judges to ordain precautionary or preventive measures, even in the absence of jurisdiction to attend an urgent claim (such as an action to prevent damage) if the person(s) or the asset(s) upon which the preventive or precautionary measure must reach are or can be in Argentina.
- 68.
Section 2609: “Exclusive jurisdiction: Without prejudice to the provisions of special laws, Argentine judges have exclusive jurisdiction in the following cases: a) in the matter of rights on real property situated in the Republic of Argentina; b) in matters related to the validity or nullity of registrations made with an Argentine public registry; c) in the matter of registration or validity of patents, trademarks, designs and industrial models and other similar rights subject to deposit or registration, when the deposit or registration had been requested or made or deemed to have been made in Argentina”. Other cases of exclusive Argentine jurisdiction are those regulated by Section 2635 of the Civil and Commercial Code in relation to the adoption of children whose domicile is in Argentina, and Section 614 of the Navigation Law No. 20094 in relation to charter party contracts.
- 69.
This rule is consistent with section 1 of the Code of Civil and Commercial Practice of the Nation.
- 70.
Section 2607: “Express or tacit extension: Extension of jurisdiction can be applied if it arises from a written agreement by means of which the interested parties express their decision of submitting to the jurisdiction of the judge or arbitrator to whom they resort. Any means of communication to establish evidence through a text is also admitted. Extension is also applied to the plaintiff when he files a claim, and with respect to the defendant, when he answers it, does not answer it, or opposes pre-trial motions without demurring jurisdiction”.
- 71.
Section 2608: “Domicile or usual residence of the defendant: Except in particular cases, personal actions shall be filed before the judge sitting at the place of usual residence or domicile of the defendant”.
- 72.
Rubaja (2015a).
- 73.
Background on this subject can be found both in the draft Code on Private International Law from the year 2003 which contained a similar rule and in the Inter-American Convention on Jurisdiction in the International Sphere for the Extraterritorial Validity of Foreign Judgments (CIDIP III, La Paz, 1984).
- 74.
Supreme Court of Justice of the Argentine Nation, 25/03/1960, “Cavura de Vlasov E. c/ Vlasov A. s. divorcio y separación de bienes”; Civil Court of Appel, Chamber K, 26/04/2006, “Talevi, Diego s/ sucesión”; High Court of Justice of Neuquén, June 22, 2009, “K. S.H. s/ sucesión”.
- 75.
- 76.
- 77.
Fernández Arroyo (2006).
- 78.
The Treaties of Montevideo of 1889 link the Republic of Argentina to Bolivia, Colombia, Paraguay, Peru and Uruguay, while the Treaties of Montevideo of 1940 link the country to Uruguay and Paraguay.
- 79.
Section 56: “Personal actions must be brought before the judges sitting at the place to the law of which the legal transaction which is the subject matter of the lawsuit is subject. They may also be brought before the judges where the defendant is domiciled”.
- 80.
Within the purview of Mercosur, Argentina is also bound by the Protocol of Buenos Aires on International Jurisdiction in Contractual Matters subscribed with Brazil, Paraguay and Uruguay.
- 81.
Section 2650: “Jurisdiction. In the absence of a valid agreement on the choice of the forum, the following judges are competent to hear actions resulting from a contract, at the option of the plaintiff: a) judges sitting at the place of usual residence or domicile of the defendant. If there are several defendants, judges sitting at the place of usual residence or domicile of any of them; b) judges sitting at the place of performance of any of the contractual obligations; c) judges sitting at the place where an agency, branch or representation of the defendant is located, provided it had participated in the negotiation or execution of the contract”.
- 82.
As to the precedence of sources specified in Section 2594 of the Civil and Commercial Code: “Applicable rules. Legal rules applicable to situations linked to several national set of rules are determined by international treaties and conventions applicable to the case and, in the absence of rules from an international source, rules of the Argentine private international law from a domestic source shall be applied.”
- 83.
This is the meaning ascribed to it by national case law: National Court of Appeals in Commercial Matters, 10/10/1985, “Antonio Espósito e hijos SRL c/ Jocqueviel de Vieu”; Supreme Court of Justice of the Nation, 10/20/1998, “Holiday Inn inc. c / Ebasa Exportadora Buenos Aires”; Supreme Court of Justice of the Nation, 09/14/2004, “Sniafa SAICF e I c/ Banco UBS AG”.
- 84.
Boggiano (2017).
- 85.
Supreme Court of Justice of the Nation, 08/23/1984, “Alto Pananá S.A.v. D’Amico Juan C.”, El Derecho, 1985-I-332.
- 86.
According to the general criteria of Section 2608, the consumer’s usual residence could also be included.
- 87.
On the relationship between an effective access to justice and the tools of private international law to guarantee not only an “academic” but a “real” justice, see Fernández Arroyo (2012), p. 33.
- 88.
And for this reason, the forum actoris is not included, i.e., the possibility for the consumer to sue in courts of its own domicile or usual residence.
- 89.
This has been the interpretation and application given by recent Argentine case law in: Commercial Court of Appeals, Chamber C, 10/08/2017, “Perez Morales, Gonzalo Martín c Booking Argentina S.R.L and others s/ ordinary”.
- 90.
Rubaja (2015b).
- 91.
Section 2656: “Jurisdiction: Except as provided in the previous articles, the following judges are competent to hear actions based on the existence of civil liability:
-
a)
The judge where the defendant is domiciled
-
b)
The judge sitting at the place where the fact that caused the damage has occurred or where the damage has caused direct harmful effects.”
-
a)
- 92.
Supreme Court of Justice of the Nation, 09/24/1969, “Sastre, Tomás c. Bibiloni, Filiberto N. y otro”; Supreme Court of Justice of the Nation, 02/05/1998, “Maruba S.C.A. Empresa de Navegación Marítima c/ Itaipú s/ daños y perjuicios”.
- 93.
Conclusion No. 7 of the Private International Law Section of the XXVIIIth Meeting of the Argentine Association of International Law held in 2016 points out that:
party autonomy in relation to the choice of forum is admitted under the conditions of the general rule contained in section 2605 of the CCCN with the necessary adaptations to the category dealt with.
- 94.
Boggiano (2017).
- 95.
This Convention came into force at international level on 06/10/1981 and Argentina ratified it on 12/01/1983.
- 96.
Section 2595 first part: When a foreign law is applicable: a) the judge establishes its content and is bound to construe it as judges from the State to which such law belongs would do, without precluding the parties from having the chance to allege and prove the existence of the law invoked. If the content of the foreign law cannot be established, Argentine law shall be applied.
- 97.
The notion of sporadic acts must be individually determined in each case by opposition to the notion of permanence and regularity. Resolution No. 8/2003 of the Superintendence of Corporations (IGJ) took this concept in order to establish control centres within the ambit of the Autonomous City of Buenos Aires. Therefore, a Registry of Sporadic Acts was created and the IGJ was empowered to require reports both from the agent of the foreign company who participated in the sporadic act and from third parties and bodies of the Autonomous City of Buenos Aires. If the reports show that the activity must be framed within section 118, paragraph 3 (habitual acts) or section 124 of the BAL, the IGJ may demand the agent of the foreign company to comply with the requirements of Resolution No. 7/2015. If it is concluded that these rules have been breached, a notice shall be sent to demand adaptation, otherwise the act or acts performed by the company shall be declared invalid.
- 98.
Supreme Court of Justice of the Nation, 07/31/1963, “Potosí S.A. c. Coccaro Abel s/tercería de dominio promovida por Corporación El Hatillo”, Judgments 256: 263.
- 99.
On the interpretation of section 118, paragraph 3, in relation to section 123, both of the BAL, see: Commercial Court of Appeals, Chamber A, 03/15/2012, “MLG SH (Klock Sebastian y Gayo María Laura) y otro c/ Echt Mariano Ariel y otro s/ordinario”.
- 100.
Uzal (2016a), p. 828.
- 101.
Boggiano (2017).
- 102.
- 103.
- 104.
Inter-American Convention on the Law Applicable to International Contracts, Mexico, 03/17/1994, CIDIP V. This Convention came into force between Mexico and Venezuela on 12/15/1996 and it has not been ratified by the Republic of Argentina or by any other country belonging to the Mercosur.
- 105.
Section 2652 establishes that: “If the parties do not choose the applicable law, the contract shall be governed by the laws and uses of the country where the contract is performed. If it is not designated or if it is not evident from the nature of the relationship, it shall be understood that the place of performance is the current domicile of the debtor of the most characteristic contractual obligation. If the place of performance cannot be determined, the contract shall be governed by the laws and uses of the country where the contract was entered into. The execution of contracts between absent parties is governed by the law of the place from which the accepted offer stemmed”.
- 106.
Najurieta (1985).
- 107.
This subsidiary solution was adopted in the Treaty of Montevideo on International Civil Law of 1940, section 40.
- 108.
Chapter 1 of Title IV for the first time includes in the Argentine positive law a general exception clause, section 2597. Section 2653 from the section of international contracts is a specific application of the general escape clause destined to make connections that could be excessively rigid or that lead to the designation of a law with fortuitous or weak connections with the case more flexible. The source of the escape clause is section 4.5 of the Rome Convention of 1980 on contractual obligations—extensively known in the Argentine case law and scholars’ opinions—and, more recently, in section 4.4 of Regulation (CE) No. 593/08 of the European Parliament and Council, dated June 17, 2008 on the law applicable to contractual obligations (Rome I). Cf. Scotti (2015).
- 109.
Section 3 of Law No. 20744 (text kept in Law No. 21297): “This law shall govern all aspects related to the validity, rights and duties of the parties, whether the labour contract had been entered into in the country or abroad; as long as it is performed in its territory”.
- 110.
Supreme Court of Justice of the Nation, 09/13/2011, “Willard Miguel c. Banco de la Nación Argentina”. The Supreme Court considered that the foreign law of the place of performance of the work abroad (State of New York) as applicable and dismissed the claim for severance pay.
- 111.
Boggiano (2017), pp. 625–626.
- 112.
In the case D.309 XLVI “Del Rio Jorge c. Banco de la Nación Argentina”, 10/09/2012, the Supreme Court of Justice of the Nation understood that the Argentine law should be applied (Labour Contract Law), since it was a permanent salaried employee of the Bank of the Argentine Nation, who had been assigned duties abroad, but the contract was submitted to Law No. 20744.
- 113.
New Argentine substantive law has eliminated the distinction between liability in contract and liability in tort. However, in the rules of International Private Law, a section was created for “contracts” and another section for “consumer contracts”, and section 13ª, including articles 2656 and 2657, and providing for “cases not contemplated in preceding articles”. That means that in the area of private international law, a distinction between liability in contract and liability in tort has been preserved. See Uzal (2016b).
- 114.
The source of this rule has been the Regulation (CE) No. 864/2007 dated 11/7/2007 (Rome II).
- 115.
In the area of Mercosur, States are bound by the San Luis Protocol in the area of torts emerging from traffic accidents, signed in San Luis on 25/06/1996 (The Argentine Republic granted approval through Act No. 25407 and deposited the instrument of ratification el on 20/10/2001). The possibility for the law of the common domicile of parties to prevail was contemplated in a prior international instrument, which is the bilateral convention between Argentina and Uruguay in tortious liability deriving from traffic accidents, and approved in Argentina through Law no. 24.106.
- 116.
Civil Court of Appel, Sala I, 14/04/1998, “Rivas Cordero Santiago c/Natanson Jorge o Gustavo Jorge Osvaldo s/daños y perjuicios”, El Derecho, bulletin dated 11/06/1999.
- 117.
Such as the Vienna Convention on Civil Liability for Nuclear Damage (approved by law no. 17,048); the London Convention on cooperation, preparation and fight against hydrocarbons pollution (1952) (approved by Law no. 24.292); the London Convention on Civil Liability for Oil Pollution Damage (approved by law no. 25,137).
- 118.
See enumeration contained in Note 2 of this Report.
- 119.
En el caso se discutía la invalidez de una cláusula de inmunidad absoluta de jurisdicción inserta en el Acuerdo de Sede de la Comisión Técnica Mixta de Salto Grande, una organización intergubernamental que se ocupa de la explotación de un recurso hídrico compartido entre Argentina y la República Oriental del Uruguay.
- 120.
Supreme Court of the Nation, 26/10/2004, “Milone Juan Antonio c. Asociart S.A. aseguradora de Riesgos del Trabajo s/accidente”, Fallos 327: 4607.
- 121.
Corte Suprema de Justicia de la Nación, 11/06/2013, “Díaz Pardo Vicente c. Cervecería y Maltería Quilmes S.A.”, Fallos 336: 593.
- 122.
An example of an unknown rule in the Argentine system of direct international jurisdiction is section 22, subsection h: “The judicial authority shall be considered competent whenever: (…) h) the previous resolution addressed the issue of status or capacity of a person who, by the claim was filed, would have had the nationality of the party whose legal authority entered judgment”.
- 123.
Supreme Court of Justice, 15/10/1996, “Riopar SRL c. Transportes Fluviales Argenrío S.A.”, Fallos 319: 2411 y La Ley 1997-A, pp. 227 y ss.
- 124.
Supreme Court of the Province of Buenos Aires, 13/06/2007, “Behrens Germán Francisco o Hermann Friedrich s/sucesión”. This judgement became binding for the parties after the Supreme Court decision dated 9/6/2009.
- 125.
Boggiano (2015b), p. 287.
- 126.
National Supreme Court. Cases A.253 XLIX y A. 238 XLIX R.H. “Aguinda Zalazar María c/Chevron Corporation s/medidas precautorias”, 04/06/2013.
- 127.
Infringement of property right and due process as it affected the assets of business organizations that had their own legal personality, and where unaware of the process being heard in Ecuador “María Aguinda y otros c/Chevron Corporation (formerly Texaco)”, and which did not get the chance to be heard and defend their rights in that process.
- 128.
This in turn does not exclude the guiding principle contained in section 27 of the National Constitution, in the sense that any treaty that is binding for Argentine Republic must be consistent with public law principles entrenched in the Constitution.
- 129.
Bazán (2015).
- 130.
Gelli et al. (2011).
- 131.
See Bianchi (2010).
- 132.
On February 14th 2017, the Supreme Court, in the case CSJ 368/1998 (34-m)/CS 1, “Ministerio de Relaciones Exteriores y Culto s/informe sentencia dictada en caso Fontevecchia y D’Amico vs. Argentina por la Corte Interamericana de Derechos Humanos”, held that “setting aside the ruling of this Court with the effect of res judicata is one of the situations in which restitution is legally impossible in the light of the fundamental principles of Argentine public law” (whereas clause 16).
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Najurieta, M.S., Wegher Osci, F.S. (2020). Argentina. In: Kessedjian, C., Cantú Rivera, H. (eds) Private International Law Aspects of Corporate Social Responsibility. Ius Comparatum - Global Studies in Comparative Law, vol 42. Springer, Cham. https://doi.org/10.1007/978-3-030-35187-8_2
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