Product Liability 2009 - Arnold & Porter LLP

Marval, O’Farrell & Mairal Argentina
the aggravation of present damages.
6.4 Are punitive damages recoverable? If so, are there any
restrictions?
Punitive damages have been introduced in our legal system when
the CPL was amended in April, 2008.
Consumers can request judges to impose punitive damages to the
suppliers who breach their legal or contractual obligations. They
cannot exceed AR$ 5,000,000 (approximately US$ 1,350,000 at
current exchange rates) and they must be paid directly to the
consumer.
6.5 Is there a maximum limit on the damages recoverable
from one manufacturer e.g. for a series of claims arising
from one incident or accident?
No, there is not.
6.6 Do special rules apply to the settlement of
claims/proceedings e.g. is court approval required for the
settlement of group/class actions, or claims by infants, or
otherwise?
Yes, once a claim has been filed, the settlement must be approved
by the court.
In the case of consumer collective claims, settlements must be
approved by courts, after consulting with the public attorney.
If infants are involved, settlements must also be approved by the
official in charge of the defence of minors (“Defensor de
Menores”).
6.7 Can Government authorities concerned with health and
social security matters claim from any damages awarded
or settlements paid to the Claimant without admission of
liability reimbursement of treatment costs, unemployment
benefits or other costs paid by the authorities to the
Claimant in respect of the injury allegedly caused by the
product. If so, who has responsibility for the repayment of
such sums?
Yes, they could. However, that kind of claim is not customary.
7 Costs / Funding
7.1 Can the successful party recover: (a) court fees or other
incidental expenses; (b) their own legal costs of bringing
the proceedings, from the losing party?
The successful party can recover from the losing party court fees or
other incidental expenses as well as their own legal costs.
The general principle that the “loser pays” applies in Argentine
litigation. Only in exceptional cases, when the court considers that
the controversy was sufficiently complex to justify the decision of
the loser to litigate, are counsel’s fees borne by each party.
7.2 Is public funding e.g. legal aid, available?
Public funding does not exist. Claimants who are not able to afford
litigation costs may request authorisation to litigate in forma
pauperis. The authorised party is exempt from the payment of the
court tax and the winner’s attorney’s fees, if he/she loses the lawsuit.
ICLG TO: PRODUCT LIABILITY 2009
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7.3 If so, are there any restrictions on the availability of public
funding?
Please see question 7.2 above.
7.4 Is funding allowed through conditional or contingency fees
and, if so, on what conditions?
Contingency fees are allowed provided they do not exceed 40% of
the economic benefit obtained by the party. Such an arrangement
does not exclude the right of counsel to collect whatever legal fees
must be paid by the losing party.
7.5 Is third party funding of claims permitted and, if so, on
what basis may funding be provided?
Third party funding is not regulated. Consequently, it is not illegal
but its usage is not customary.
8 Updates
8.1 Please provide, in no more than 300 words, a summary of
any new cases, trends and developments in Product
Liability Law in Argentina.
The amendment to the CPL, passed in April, 2008, included some
rules applicable to collective cases. Those rules incorporated the
possibility of claiming individual patrimonial rights through class
actions, despite the fact that the Federal Supreme Court had always
been restrictive in recognising collective standing to sue when
individual rights were invoked.
However, on February 24, 2009, the Federal Supreme Court ruled
in the amparo action “Halabi, Ernesto vs. Federal Executive
Branch - Law 25,873 - Decree 1,563/04” outlining for the first time
the characteristics of class actions filed to protect collective rights
whose object are individual rights.
The Court’s decision classified rights as follows: (i) individual
rights; (ii) collective rights whose object are collective interests;
and (iii) collective rights whose object are homogeneous individual
interests.
It also established the requirements for the admission of these
actions: (i) there must be a sole or complex fact which affected a
relevant quantity of individual rights; (ii) the action must be focused
on the common effects; and (iii) individual interests by themselves
must not justify the filing of a lawsuit.
In addition, the Supreme Court decided that the formal admission of
any class action requires the fulfillment of certain elemental
conditions: (i) the precise identification of the affected group; (ii)
the class’s attorney-in-fact must be qualified; (ii) plaintiff
arguments must be related to facts and rights which are common to
the members of the class; (iii) there must be a notification to serve
the persons which may be affected by the class action so as allow
them to choose whether they want to be left apart or take part in the
proceedings; and (iv) there must be proper publicity to avoid
multiplication or superposition of class actions on the same matter.
The Federal Supreme Court also granted erga omnes effects to
rulings passed in class actions proceedings.
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