Creation of Another Judicial Instance in Argentina – Cassation Chamber

A new bill for the creation of a new judicial instance was recently approved in Argentina. On May 9, 2013, Law 26,853 was enacted which creates a new Cassation Chamber. Consequently, there are now –at the Federal level- four judicial instances in Argentina: (i) the courts of first instance, (ii) the chamber of appeals, (ii) the cassation chambers, and (iv) the Supreme Court.

Naturally, the Cassation Chambers shall only resolve federal matters. The newly created Chamber may revise the sentences about the following matters: administrative litigation, labor and social security, and civil and commercial issues.

The new Cassation Chambers, therefore, provide for a new judicial recourse (cassation recourse) against decisions of the National Civil and Commercial Chamber of Appeals, National Administrative Matters Chamber of Appeals, and against sentences issued by other Federal Chamber of Appeals in Argentina (National Labor Chamber of Appeals, National Social Security Chamber of Appeals, National Civil Chamber of Appeals, and National Commercial Chamber of Appeals).

This new legislation is grounded on the basis of the constitutional right to an effective judicial decision, which –according to the debates and the language of the bill sent by the Executive Power- was not possible in the former three-instanced system, because of the tardiness of the Supreme Court to resolve all the matters waiting for its decision.

The causes which habilitate the cassation appeal are the following:

• Lack of observance or erroneous application of the substantive law;

• Arbitrariness;

• Lack of observance of the essential procedural laws;

• Unification of doctrine -because of facts, substantially identical arguments and pretensions- when different rulings were issued.

The inclusion of “arbitrariness” as a cause for the application of the recourse habilitates the questioning of judicial decisions as “arbitrary”, following the standard elaborated by the Supreme Court for the “extraordinary recourse”, when parties suffer a serious damage attributable to a blatantly illegal jurisdictional decision.

In order to ensure the purposes of the new legislation, three Cassation Chambers are created in the City of Buenos Aires, which shall decide the recourses filed against the rulings of the relevant Chambers of Appeals (National Labor Chamber of Appeals, National Social Security Chamber of Appeals, National Civil Chamber of Appeals, and National Commercial Chamber of Appeals).

If the judicial decision did not follow the relevant substantive law, or it applied or interpreted substantive law incurring in error or arbitrariness, the Cassation Chamber will resolve the matter in accordance with substantive law.

In addition, the new legislation also sets forth two additional recourses which habilitate the intervention of the Cassation Chambers; (i) the recourse of unconstitutionality of the law, applicable when resolving about the constitutionality of a law or rule of the National Constitution, and the judicial resolution negates the requests of the recurrent party; and (ii) the revision recourse which is applicable against judicial decisions issued as a consequence of malfeasance, bribery, violence or other fraudulent means, whose existence has been declared in a subsequent and irrevocable judicial decision.

Finally, it is noteworthy that these new Chambers have not yet been integrated, nor have been provided of neither budget nor staff. It is likely the organization process of the Cassation Chamber requires a considerable time. The law provides, however, that until the Cassation Chambers are fully integrated with judges, surrogate judges shall be designated.

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