Product Liability 2009 - Arnold & Porter LLP

Argentina
66
Marval, O’Farrell & Mairal Argentina
a) Appeals to the Courts of Appeals with respect to decisions by
first instance judges.
b) Appeals to the Federal Supreme Court with respect to
decisions of the Courts of Appeals.
In principle, the Federal Supreme Court may review a decision of a
Court of Appeals by means of an “extraordinary appeal” (or
certiorari) when it is alleged that the decision conflicts with a
provision of the Argentine Constitution or whenever there is a
dispute on the interpretation or application of a treaty or a federal
law. An “extraordinary appeal” may also be filed with the Federal
Supreme Court when the appealed decision is deemed “arbitrary”.
The ordinary appeal before the Federal Supreme Court is
exceptional.
Most provincial judicial systems also provide at least one appeal.
4.8 Does the court appoint experts to assist it in considering
technical issues and, if not, may the parties present expert
evidence? Are there any restrictions on the nature or
extent of that evidence?
Please see question 4.2 above.
4.9 Are factual or expert witnesses required to present
themselves for pre-trial deposition and are witness
statements/expert reports exchanged prior to trial?
No, witnesses must testify in the courtroom, during the proceedings
(except for some few exceptions provided by the rules of civil
procedure). Witness statements and expert reports are not
exchanged prior to trial.
4.10 What obligations to disclose documentary evidence arise
either before court proceedings are commenced or as part
of the pre-trial procedures?
The procedure for the discovery of documents as it exists in the U.S.,
does not exist in the Argentine legal system. Parties have the right to
produce only the documents upon which they intend to base their case.
The only exception to this principle is the right that a party has to
request from its opponent (or a third party) the production of
specifically identified documents which are relevant to the dispute.
In this case, if the required party does not produce the documents
the judge may draw a negative inference against such party at the
time of rendering the final decision.
4.11 Are alternative methods of dispute resolution available e.g.
mediation, arbitration?
There is a mandatory mediation proceeding law in the city of
Buenos Aires and also in some other provinces.
The Consumer Protection Law provides arbitration proceedings that
may be organised by the government only for consumer actions.
5 Time Limits
5.1 Are there any time limits on bringing or issuing
proceedings?
Generally, there are no time limits on bringing or issuing court
proceedings in private lawsuits. In lawsuits against the
Government, short statutory terms may be applicable.
5.2 If so, please explain what these are. Do they vary
depending on whether the liability is fault based or strict?
Does the age or condition of the claimant affect the
calculation of any time limits and does the Court have a
discretion to disapply time limits?
The statute of limitations for damages resulting from noncontractual
obligations (i.e. torts) is 2 years and for damages
resulting from contractual obligations is 10 years. In the case of
consumer claims, the minimum statute of limitations is 3 years.
The statute of limitation provision is generally computed from the
date of the event upon which the plaintiff is suing to the date the
complaint is filed.
The age or condition of the claimant, in principle, will not affect the
calculation of the term.
5.3 To what extent, if at all, do issues of concealment or fraud
affect the running of any time limit?
Concealment or fraud may affect the running of the statute of
limitations because the term may not begin to run until the moment
the plaintiff knew or should have reasonably known that he had
been damaged, and the nature of the damage. The time limit, in
principle, can be extended for 3 months after the impediment or
fraud which prevented the plaintiff from suing has ceased.
6 Remedies
6.1 What remedies are available e.g. monetary compensation,
injunctive/declaratory relief?
Consumers may choose to: a) request specific performance of the
obligation provided such performance were possible; b) accept
another product or the rendering of equivalent services; or c)
rescind the agreement with a right to reimbursement of any monies
paid irrespective of the effects already verified and considering the
agreement in its entirety. In addition to these remedies, consumers
may claim damages.
6.2 What types of damage are recoverable e.g. damage to the
product itself, bodily injury, mental damage, damage to
property?
The general principle is that awards shall provide full compensation
for all damages caused to the injured party that are not remote.
The relief sought may include: (i) compensatory damages, which
may include bodily injury, mental damage, aesthetic damage and
damage to property; (ii) loss of profit; and (iii) moral damages,
which may be recovered when hurt feelings cause physical pain,
suffering or spiritual anxiety. Argentine case law has also awarded
damages for the “loss of a chance”.
Consumer protection regulations also provide for the return of
products and the refund of the price.
6.3 Can damages be recovered in respect of the cost of
medical monitoring (e.g. covering the cost of investigations
or tests) in circumstances where the product has not yet
malfunctioned and caused injury, but it may do so in
future?
In principle, damages must be real, permanent, personal and truly
affect a legitimate interest of the claimant. Future damages may
only be paid if their occurrence is certain or if they will result from
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