Mastering litigation in Latin America - IBA Annual Conference 2024 session report

Session date: 16 September 2024, 11:15am - 12:30pm

• Chair: 
  Rodrigo Fermín Garcia, Marval O'Farrell Mairal, Buenos Aires
• Speakers:  
  Helena Najjar Abdo, Lobo de Rizzo, São Paulo
  Andrés Moreno Gutierrez, Moreno Baldivieso, La Paz
  Mónica Pérez, Carey Abogados, Santiago
  Rodrigo Zamorra, Galicia Abogados, Mexico City

The panel provided attendees with insights and practical advice on navigating civil and commercial litigation in Latin American jurisdictions. The speakers offered essential guidance to help on the successful management of legal disputes in the complex landscape of Latin American law.

Minutes of the session

Introduction of panellists

Rodrigo Garcia: In complex litigation in Latin America, frequently local lawyers' point of contact is not the final client but rather an international law firm, which is usually is aware of the substantial facts involved in the litigation but has no experience in the local jurisdiction's characteristics.

What to expect if clients need to handle complex litigation in your jurisdiction?

Mónica Pérez: Some issues should be pointed out with regard to litigation in Chile:

• speed of the cases (very lengthy - 5-8 years from filing until a final ruling);
• limited availability of means to obtain evidences (hard to have access to documents – the only effect of absence of production is that the document is not used);
• Communication – easy access to records, which may expose the client.

How does privilege/protection of information work in the region?

Rodrigo Zamorra: As opposed to US experience, in Mexico there is no specific regulation except for a general civil provision that all professions must retain secrecy of the work; there is no black and white provision on details such as communication involving in-house counsel. In view of the grey area on the topic, it is always advisable to protect confidentiality and privilege on contracts prior to exchanging communication.

How is arbitration going in small local countries like Bolivia?

Andrés Moreno Gutierrez: Arbitration is growing because of the quality of judicial courts; as is about to happen with the Mexican judiciary reform, in Bolivia, in the past an Act was also passed to have judges elected by the population and that did not go well – since the judiciary is ill, most relevant corporate disputes go to arbitration, which is fairly consistent and based on a well drafted law.

How easy or frequent is it to have a case reviewed by the Federal/Supreme Courts?  

Rodrigo Zamorra: The Mexican judicial reform has been approved very fast and following unique proceedings; basically all proceedings are subject to a final challenge called amparo that end up in the Federal Judicial Branch (Federal Circuit Courts or less frequently the Federal Supreme Court) – this is where the reform will start. Probably the legal market will be deeply impacted, and presumably alternative dispute resolution methods will become more popular. Lawyers will need to be creative and try to escape Mexican courts (eg structuring guarantees located and enforceable abroad).

Monica: Likewise, there is a remedy in Chile called recurso de protección constitucional, which is a remedy that can be filed by any person seeking preservation of fundamental rights against any arbitrary public authority or individual act – filed at the court of appeals and following a simplified proceeding. Judges sometimes are not agents of law and overrule other powers’ acts aiming at protecting individual rights.

How does collection of evidence work in jurisdictions without discovery?

Helena Najjar Abdo: In Brazil there is no formal pre-trial proceedings, but only some potential measures to access documents, such as with the ação de exibição de documentos – a request for production of documents. Filings can be made against a contractual party or a third party in order to compel production of evidence and lack of production may generate not only penalties but also an assumption that the content of these documents proves the facts alleged by the requesting party within the proceedings.

What are the precautionary measures available in Bolivia and how easy is it to get them?

Andrés: In Bolivia, any judge is empowered to issue or revoke interim measures, but some stakeholders are abusing this, and this damages the credibility of the system.

When it comes to abuse, what are the consequences of obtaining a precautionary measure and then getting an adverse ruling?

Rodrigo Zamorra: In Mexico too, some aggressive and groundless interim decisions are being rendered, and this damages the system; under Mexican law, the party requesting the provisional measure should post a bond, but sometimes it is hard to estimate the amount that should be paid to the defendant when the precautionary measure is lifted.

Litigation costs create concerns - litigating in Argentina is very expensive. For instance, plaintiff should pay three per cent costs. How does this work in other jurisdictions?

Helena: In Brazil there is a concept of honorários de sucumbência – according to which the losing party should pay additional fees to the lawyers that represent the winning party; this applies even to precautionary measures before judicial courts in preparation of an arbitration.

Q&A from the audience

Question from Daniel Posse – Colombia: How does professional secrecy protect lawyers? This is an issue in Colombia regarding in-house counsel, who not only give legal advice but also negotiate and participate more closely in the facts.

Rodrigo Zamorra: In general, professional secrecy seeks to protect lawyers in giving advice to the client. But sometimes the lawyer is involved in the facts and such protection is relaxed; eg a lawyer that serves as a secretary of a board meeting. 

Question from Carlo Portatadino – Italy: how is recognition of foreign court judgments carried out in local courts? How does the political environment affect that?

Andrés: Political views affect if and how foreign court decisions are enforced; eg US decisions are hard to enforce in Bolivia since the US is seen as an imperialist country.

Question from Sarah - England: is it possible to apply to interrupt or suspend statute of limitations?

Helena: In Brazil, the term may be interrupted only once and restarts for the same duration.

Rodrigo Garcia: in Argentina the same rule applies; additionally, any process may go through a pre-trial mediation process that suspends the term for statute of limitation.

Question from the audience (unidentified): can pieces of evidence such as a Whatsapp message be used as evidence?

Mónica: In Chile, usually not – only emails and written documents, although a party that exchanges Whatsapp messages could be called for court deposition.

Rodrigo Garcia: The regional laws require formalities, and one party may challenge the evidence, which would lead to the need of proving authenticity.

Question from Ligia Popescu - Romania: Are there set aside mechanisms against arbitration rulings?

Andrés: there are limited possibilities of set aside mechanisms (based on due process of law), but sometimes they are misused.

Question from Alexander - Netherlands: How does remote production of evidence work in the local jurisdictions?

Rodrigo Garcia: It would be great to have witnesses deposing via Zoom or Teams, but al least in Argentina all testimonies of witnesses living abroad should be taken at the witness’s domicile through a rogatory letter, and the court where the witness is domiciled will carry on the production of evidence and will revert in writing. A witness based in Argentina could be heard online for a foreign proceeding if it is deemed as valid by the other country’s court.