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2008 News Articles › Day Three: Formal Delegation Meetings Begin
Day Three: Formal Delegation Meetings Begin
Article Date: Monday, June 09, 2008
Written By: Russell Rawlings
NCBA banner presented at local bar meeting. |
From Linda Markus Daniels
(Monday, June 9)
Today was our first day of formal delegation meetings, of which there were three. The first meeting was with the American Chamber of Commerce to provide background information on current economic, political and social issues in Argentina. The second meeting was at the Court of Appeals to learn about the court system, and the third was with the “public bar,” which is the mandatory bar for all attorneys.
Clearly the most interesting of these meetings was with the court. It took a while for most of us to fully comprehend what we were being told: there really is no such thing as a litigator in the U.S. sense. There are no trials—not just that there are no juries, but rather that virtually everything is done entirely on paper (and the paper part is literal as nothing is submitted or stored electronically). This means that there is no opportunity for the judge to see any witness testify or to attempt to determine the veracity of the statements being made by viewing the witness, and there is no chance for a trail attorney to make a persuasive oral argument.
It is possible to have testimony, but it is transcribed and given to the judge. Cases here take many years, usually 4-8, but it can be longer. Part of the delay is attributable to a massive workload and part of the fact that every decision is immediately appealable rather than employing our practice of consolidating all issues into one appeal. So as each appeal makes its way up and back down, the case is delayed time and time again. After the first appeal, however, the case goes up each time to the same three-person panel of appellate judges, who always work together. The court of appeals is usually the last court, as the supreme court is reserved for federal questions.
Parties to the cases rarely, if ever, see a judge. The judges are supposed to meet once with the parties at the beginning of the case to organize the process for that case, but this task is frequently undertaken by a clerk or other assistant to the judge. Judges at either the lower level or appellate court can grant a meeting with a party or attorney, and such meetings are almost always ex-parte.
There are three basic bar associations here, which I note at this time because it was emphasized several times that judges and lawyers do not socialize together. The public is very suspicious and if they see judges with lawyers they think something inappropriate may be occurring. So, the judges have their own bar association. As to the other two, there is a public bar, which we visited after the court and a private bar, which we will visit many times over the next week and about which others will write.
The public bar is the bar of which all attorneys must be members. Once a student completes the courses required for the study of law (usually taking 5-7 years), he or she comes to the public bar and enrolls as an attorney by signing certain forms. There is no bar exam.
The public bar serves two major functions: discipline and representation of attorneys in various major court matters. As to the former, the private bar also serves this function and deals with its members separately, creating one source of tension between the two bars. Most problems dealt with by the public bar, they believe, are created by ignorance of what is permitted. Often the issues are abandoning the case or settling against the interest of the client, but often the complaints are simply that the client did not like the result and the attorney did nothing wrong. Virtually no law firms have trust accounts so trust account issues are not on this list.
As to the second purpose, the bar has taken up the cause of the government having retained $61 billion from attorneys fees over the last 4 years as part of what the bar contends is an unconstitutional tax. The decision on this is due in July.
Finally, the delegation met with representatives of the American Chamber (which has around 700 members in Argentina) and 10 Argentine attorneys from various firms and corporations. The main topics of discussion were the current export tax issues, business financing and intellectual property. The export tax is clearly the largest current issue in Argentina as the farmers have basically been on strike for three months, since the executive branch arbitrarily imposed a 41% tariff on the food exports.
As food is by far the largest export from Argentina, this has a major impact. This move has also created a sort of constitutional crisis here as it is the legislative branch that has responsibility over tariffs and its responsibility has been usurped by the more powerful executive branch. The issue is in court, but it is widely believed that even if the executive looses, any court order contrary to the executive position will not be enforced.
As to business financing, as a result of the default on $80 billion in foreign loans a few years ago and the farmer problems, there is basically no loan market, internal or external. Couple this with what is expected to be an inflation rate of over 20% each of the next two years, lenders are extremely risk adverse to anything within the country.
Finally, there are major intellectual property issues including massive piracy, which is it seems is more of a cultural issue than a financial one, very long processing time for patents (10 years) and refusal to become a member of the PCT. The latter is perhaps more interesting because it is the Ministry of Health which opposes this membership in order to be able to allow what is referred to as generic drugs into the country more quickly. It is noted, however, that these are not what we would refer to as generic as the formulations need not be similar or contain the same primary active ingredient; the drug may be very different and will be used without what we would require for underlying testing before use.
Tomorrow, we go to the private bar for seminars in labor and immigration law.
End of Day 3