Civil Procedure Reforms in Latin America: The The Role of the Judge and a nd the Parties in Seeking a Fair Solution Eduardo Oteiza*
* Universidad Nacional de La Plata, Professor of Procedural Law
Universidad Notarial Argentina, Director of the Postgraduate Course in Advanced Procedural Law
I. THE IMPORTANCE IMPORTANCE OF CONTEXT In December Decembe r 2003, the members me mbers of the International Association Associatio n of Procedural Proce dural Law 1 (IAPL) met in Florence to discuss various processes of reform from a comparative viewpoint. The reports from that meeting are are really worth re-reading, re-reading, as they reveal a significant convergence among legal systems with respect to the need to settle legal disputes dispu tes within within reasonable times, times, at reasonable costs, and with decisions that are based on true facts and proper application appl ication of the law. In In his report, Adrian Zuckerman said that “the modern trend of Anglo-American systems is to adopt judicial control of litigation as the principal instrument for accommodating rule enforcement with the objective of doing justice on the merits” 2. Frédérique Ferrand Ferrand held that, that, under French 3 law, the civil procedure was “chose des parties et chose chose du Juge” , noting that there was hardly any use in distinguishing between common law and civil civil law procedure, since the former former is “adversarial”, while while the latter l atter is “inquisitorial”. Such reports were used as examples by Nicolò Trocker and Vincenzo Varano to show that reform projects attenuate the the diff di fferences erences used for the the classification of procedural legal systems. 4
See Nicolò Trocker & Vincenzo Varano, eds., The Reforms of Civil Procedure in Comparative Perspective (Torino: Giappichelli, 2005) [hereinafter “Trocker & Varano, Reforms”]. In particular, see Nicolò Trocker & Vincenzo Varano, “Concluding Remarks” in Trocker & Varano, Reforms , 243 [hereinafter “Trocker & Varano, ‘Concluding Remarks’”]. 1
A. Zuckerman, “Court Control and Party Compliance - The Quest for Effective Litigation Management” in i n Trocker & Varano, Reforms, id., 143 at 143-61. 2
F. Ferrand, “The Respective Role of the Judge and the Parties in the Preparation of the Case in France” in Trocker & Varano, Reforms, id., 7, at 9. 3
4
Trocker & Varano, “Concluding Remarks”, supra, note 1, at 243-67.
There are, in i n both the civil law and the the common law traditions, traditions,5 attempts to, first, classify and differentiat differentiatee certain legal elements, and, second, to establish the reciprocal relationships among them. Once the essential elements for an ideal system have been determined, authors try to establish to what extent such elements are present in one legal system or another. The simple dichotomy between civil law and common law, while useful as a starting point, is not sufficient to assess the wide variety of legal systems and the differences between them. The use of the terms “inquisitorial” and “adversarial” has been strongly criticized because the term “inquisitorial” has been pejoratively pejo ratively used to refer to the era of the Inquisition, which was characterized characterized by the the excesses of the medieval Roman Catholic church. Defined in very simple terms, the “adversarial” system grants control over the proceedings to the parties, while the “inquisitorial” system places pl aces more authority in the the hands of the judges. judge s. Both of these models, however, are very simple; because they are vague and lack precision, they are of little use for the the purpose pu rpose of characterizing characterizing a particular legal system. A description of a country’s country’s legal system that is based, to a greater or lesser lesse r degree, on an adherence to either ei ther the the civil law tradition or the common law tradition will prove insufficient for the purposes pu rposes of understanding how that legal system works works and to what extent it can be effective. It has been noted that such classifications ignore the heterogeneous nature that is inherent i nherent in both legal traditions, since both of them are far from being monolithic. Additionally, it is not uncommon to find that certain legal devices that are typical of one particular legal system ( i.e., from the common law tradition) have been adopted, with or without modification, by another legal system that is its exact opposite ( i.e., from the civil law tradition). Actual legal systems that might be compared by reference to the the two primary primary legal traditions are, in reality, much more dynamic, with different degrees of development. There are processes of convergence convergence whereby the various legal l egal systems sys tems adopt rules and criteria that are used in both of the traditional legal approaches. I will not discuss here the dichotomy between the features and the effects of the civil law and the common law. It should be noted, however, that the study of a legal system and its i ts effects effects on other legal systems s ystems can also be approached from a federal or centralist perspective, or o r from the perspective 6 of greater or lesser social and economic development. develop ment. It is worth noting how a rule ru le -or a set se t of rules- that that is set in accordance with the features of one model or the other will, will , when it is applie ap plied d to a similar si milar or disparate cultural environment environment,, change change its scope and adjust to the context context in which which it is applied ap plied.. Michele Taruffo, when discussing an alleged “crisis dei modeli tradizionali” 7, underscores the fact that the civil law and common law approaches were used to I will use the term “tradition” “traditio n” to indicate indicate a set of deeply rooted, historicall hi storicallyy conditio conditioned ned attitudes attitudes about Civil Law Tradition: An Introduction to the the nature of law and the role of law in a society. See J.H. Merryman, The Civil Legal Systems of Western Europe and Latin America (Stanford: Stanford University Press, 1969), at 1-5. The terms “categories” and “models” will be used in a similar way. I will use the expression “legal system” to refer to a set of institutions, procedures and legal provisions that operate in a nation or a body of nations. “Tradition” places “legal systems” into cultural perspective. 5
With regard reg ard to the use of civil law/common law classification, see R.B. Schlesinger et al., Comparative Comparative Law: L aw: Foundation Press, Press, 1998 19 98 ) [hereinafter [hereinafter “Schlesinger et al., Comparative Cases, Texts, Materials Materials , 6th ed. (New York: Foundation Law”]. In particular, see R.B. Schlesinger et al., “The Problem of Classifying Legal Systems” in Schlesinger et al., Comparative Law, 283. 6
7
M. Taruffo, Sui confine. Scritti sulla giustizia civile (Bologna: II Mulino, 2002), at 67-97.
represent values and systems at a particular time in history that may no longer be as important in today’s scenarios. The problem begs a determination of how such options have changed with the passage of time. What may have been fundamental in the past may not be considered so fundamental today. In the same way, the compelling needs of today may not have been so compelling in the past. Every society seeks to have an efficient court system that safeguards the rights of all citizens with decisions that are made fairly, at a reasonable cost and without delay. To that end, attempts are made to strike a reasonable balance among three mutually interwoven elements: justice, time and cost.8 There exists no general consensus over the best ways, in any legal case, to fix certain values, such as the proper administration of justice, efficiency and affordable costs. Procedural systems are the result of particular choices made by societies and their governments on these matters. 9 The aim of this paper is to discuss the respective roles of judges and parties in getting results. Here, the term “results” should be understood to reflect a legal system’s abilities to engage in effective conflict resolution and, thus, to provide speedy and fair justice at a reasonable cost. It will then be established how and to what extent we can have a legal system that ensures such timely and affordable justice, the decisions of which are based on a certain degree of truth and appropriate application of the law. All three elements -justice, speed and cost- are considered in order to assess the extent of the results. The 2009 IAPL panel in Toronto also proposes and assumes the existence of managerial judging10 -which would redefine the role of the judge- by introducing the question of the impact of mediation on the functions of the judge and the parties. From that perspective, reference should be made to the terms that are used in this paper. The expression “managerial judging” can be likened, inter alia, to the idea of “case flow management”. According to I.R. Scott, 11 such a term was coined and has gained currency since 1973, following a paper 12 by Maureen Salomon13 on the report by the American Bar Association’s Commission of Standards of Judicial Administration. Salomon considered case flow management to be a goal-oriented process, the basic principle of which is the control by the court over the progress of its cases. It is stated that, as early as practicable, the court should actively manage the proceedings, exercising See A. Zuckerman, Civil Justice in Crisis: Comparative Perspectives of Civil Procedure (Oxford: Oxford University Press, 1999), at 3-52 [hereinafter “Zuckerman, Civil Justice ”]. 8
O.G. Chase et al., Civil Litigation in Comparative Context (St. Paul: Thomson West, 2007), at 1-35. 9
The panel was asked to consider the following issues: (1) Is managerial judging transforming the role of judges in the common law? (2) To what extent can judges shift from adjudicating to mediating disputes? and (3) How are the changing roles of judges changing party engagement in the litigation process? 10
I.R. Scott, “Caseflow Management in the Trial Court” in A.A.S. Zuckerman & R. Cranston, Reform of Civil Procedure: Essays on “Access to Justice” (Oxford: Oxford University Press, 1995) 1. 11
12
With regard to the use of management for an efficient administration of the courts, see H. Fix-Fierro,
Courts, Justice and Efficiency: A Socio-legal study of Economic Rationality in Adjudication (Oxford: Hart Publishing, 2003)
221. M. Salomo n, Caseflow Management in the Trial Court, Supporting Studies 2 , American Bar Association Commission on Standards of Judicial Administration (1973). 13
judicious discretion to achieve disposition of the dispute fairly, efficiently and with reasonable speed.14 The expression “case management” is also used to denote other meanings. It is often used to refer to the courts as organizations or to the decentralized administration of the courts. Here, I will use this term to refer to the judge’s active direction and control of the proceedings in consultation with the parties. Finally, the 2009 IAPL panel in Toronto should consider alternative dispute resolution (“ADR”) as a means to achieve better results. ADR is associated with the conduct of mediation, arbitration and other forms of dispute resolution that are used in the United States15 to reduce the courts’ case loads (which are derived from increasing litigation). Although I will only refer to mediation, there exists today in Latin America a growing general interest in ADR. As to the role of the parties in case management, I will only deal with the principle of good faith. This principle includes various standards of procedural fairness, which are embodied in the legal systems that are mentioned below. 16 Case management and mediation will be described in relation to the recent developments in the judicial reform processes of a significant number of Latin American countries that have reinstated their democratic governments. Certain globalization issues have influenced these reform processes, particularly where attempts have been made to replicate or reproduce these issues without the consensus of civil society. II. CIVIL LAW AND COMMON LAW IN LATIN AMERICA iN TIMES OF GLOBALIZATION Globalization is a multiple-effect phenomenon. Jürgen Habermas 17 notes the challenges that must be met by democracies in the Western world that are faced with the dramatic changes wrought by globalization. Nation-states that formed about two centuries ago as a result of the French and American revolutions (which are clearly associated with our understandings of the civil law and the common law) once interacted within a context that was different from the context of today. Their governments, institutions and economies developed under more or less successful
See ALI/UNIDROIT Principles of Transnational Civil Procedure (Cambridge: Cambri dge University Press, 2004), at Principle 14 (“Court Responsibility for Direction of Proceedings”). 14
See O.G. Chase, “ADR and the Culture of Litigation: The Example of the United States of America” i n L. Cadiet, T. Clay & E. Jeuland, Médiation et arbitrage (Paris: Litec, 2005) [hereinafter “Cadiet, Clay & Jeuland”]; T. Farrow, “Public Justice, Private Dispute Resolution and Democracy” (2008) 4 Comparative Research in Law & Political Economy, onli ne: . 15
For a further development of the conduct of the parties, see M. Taruffo, ed., Abuse of Procedural Rights: Comparative Standards of Procedural Fairness (The Hague: Kluwer Law International, 1999) (including the reports 16
from the IAPL Congress at Tulane in 1998). J. Habermas, Die Postnationale Konstellation (Frankfurt am Main: Suhrkamp, 1998). For the Spanish edition, see J. Habermas, La Constelación Posnacional (Barcelona: Paidós, 2000), at 81-147. 17
institutional models that were limited by their territories and borders. Globalization, 18 understood as a process and not as a status, describes a rapidly growing increase in the volume and the intensity of traffic, communications and exchange into, out of, and beyond a country's borders. According to Habermas, the term “globalization” evokes the image of rivers that are overflowing to the extent that they are undermining border controls -a situation that can ultimately lead to the collapse of the nation-state structure. I could add that old gates do not usually work as well as they did before, and do not regulate the flow of water as efficiently as they once did. With increasing clarity, we can note how decisions or projects that are made under a “post-national constellation” affect nation-state institutions, such as law in general and the civil procedure in particular. I merely want to highlight this fact, and note that the legitimacy and the effects of globalization on other values that are also at stake should be carefully analyzed. With regard to the effects of globalization -and the impact of these effects on decisions that have been adopted by nations in connection with justice- I will refer to Latin America, rather than to Argentina in particular, as members of the post-national constellation have played an active part in judicial reform processes within that region. The following issues with respect to Latin America underscore the need to analyze the latest events in that region. The first is that Latin America follows the civil law tradition, notwithstanding its ties to the common law or its differences with both legal systems. Latin America, as a group of nations living in a particular region, maintains close ties with Western democracies. Despite their peoples’ common past and cultural ties, they present distinguishing and disparate features. For three centuries, these people lived within colonial territories that belonged to Spain, Portugal and France. Their colonial past, and the tradition derived from that particular situation, determined, to a great extent, their subsequent behaviours. When Latin American nation-states became independent, they adopted and adapted legal devices under the influence of the 18 th century revolutions of both France and America. As a result, both civil and common law devices were adopted for the organization of the nation-states. Although the legal systems of Latin American countries were patterned after European continental and Anglo-American legal systems, the development of such systems was influenced by their own social, cultural, political and economic traditions. The second issue relates to Latin America’s own identity. As is the case in any large community of peoples, Latin America is a land of great contrasts and differences. Every country has its own distinguishing features, and it is possible to find striking contrasts within each of them. There remains, however, a certain homogeneity that is derived from their shared history, which goes far beyond their colonial past and Roman languages. During the 19th and 20th centuries, Latin America built a certain distinctive identity that made it different from North America and Europe, despite its close ties to each.
The term “globalization” is used in a broad sense here, to include all such interactions, relatio nships and processes, and the tendency for the world to become more interdependent in respect of culture, communication, language, ecology and institutions, but not in respect of the development of a common global economy. For that sense, see W. Twining, “Globalisation and Comparative Law” in E. Órücü & D. Nelken, Comparative Law: A Handbook (Oxford: Hart Publishing, 2007), at 69-89. 18
The third issue is the importance of Latin America, given both its demographic weight and the problems that it faces. Latin America is home to 575,492,000 people 19, and social inequality and poverty remain the main challenges within the region. 20 According to reports by the Economic Commission for Latin America and the Caribbean (“ECLAC”), Latin America is the most unequal region in the world. According to the human development index (“HDI”), which was developed by the United Nations Development Program (“UNDP”)21, no country in the region is ranked among the 30 top nations in the world, and this helps to illustrate the difficulties that face these countries. The fourth issue is the relationship between a strong and stable institutional system that respects and upholds the rule of law, and the political, social and economic development of the countries of the region. During most of the 20th century, and particularly in the aftermath of the Second World War, Latin America experienced times of ongoing political instability and social violence. During the 1980s, the countries in the region restored their democratic institutions. Lawrence Friedman and Rogelio PérezPerdomo emphasized the fact that democratization and globalization processes in the region should be analyzed together. 22 In the Latin American context, both phenomena and their relationship with cultural, political and economic issues occurred simultaneously. To a great extent, the civil judicial reform process in the region is closely related to the restoration of democracy and the need to strengthen the rule of law. One of the challenges faced by young Latin American democracies is how to build greater confidence in justice among their citizens. According to recent surveys, 78 per cent of people in the region feel that there is inequality in access to justice. 23 III. A BRIEF LOOK AT THE PAST: THE INFLUENCE OF CIVIL AND COMMON LAW Certain elements in Latin America’s current laws of civil procedure would be too difficult to understand without first taking a brief look at their historical context. R.C. van Caenegem24 explained how Alfonso X, the Wise, 25 introduced Canon Law in the Spanish Code of Laws, better known as the Siete Partidas, which was finally adopted as See Economic Commission for Latin America and the Caribbean (ECLAC), “CEPAL-STAT - Bases de Datos”, online: (ECLAC is a United Nations commission that encourages economic and social cooperation among its members). 19
See United Nations Development Programme (UNDP), Ideas and Contributions: Democracy in Latin America - Towards a Citizens’ Democracy (New York: UNDP, 2004), at 49. According to the report, 225 mil lion people 20
lived in poverty in 2003, 100 mill ion of whom were indigent. 21
See Programa de las Naciones Unidas para el Desarrollo, online .
L.M. Friedman & R. Pérez-Perdomo, eds., Legal Culture in the Age of Globalization: Latin America and Latin Europe (Stanford: Stanford University Press, 2003), at 1-19. 22
23
24
See Informe Latinobarómetro. Banco de datos en línea, at 93, online: . R.C. van Caenegem, “History of European Civil Procedure” in M. Cappelletti, InternationalEncyclopedia
of Comparative Law, vol. XVI, c. 2 (“Civil Procedure”) (Tübingen: Mohr, 1973) 38, at 38-42. 25
1251-1284.
the Ordenamiento de Alcalá of 1348. The Siete Partidas influenced Spanish civil procedure up to the 19th century. In Portugal, the Siete Partidas also influenced the Ordenações Alfonsinas of 1446, which provided that, where domestic laws were inefficient, the provisions of Canon Law would apply. Between 1492 and 1808, Spain turned into a centralist monarchy and became a world power. Reference is made here to the Siete Partidas and the Ordenações Alfonsinas merely to show the Roman-Canon Law origin of the legal system, the principles of which were brought to Latin America by conquistadors. As noted by Jan Kleinheisterkamp, 26 the laws and the practices of the courts that were introduced into Latin American colonies can be described as slow, costly, highly unpredictable and often subjugated to corruption. In a context of legislative confusion and remoteness from the power of the crown, the value of the law was relative.27 The Spanish king had considerable, but not absolute, power. A significant limitation was the large distance that separated Spanish colonies in America from their central power; this was aggravated by poor communications and the vastness of the territories themselves. In 1524, Charles V created the Council of the Indies, which had jurisdiction over the colonies. Nine audiencias were set up during the 16th century to perform the functions of an appellate authority -that is, to review the decisions adopted by viceroys (as civil authorities) and captain-generals (as military authorities). 28 Institutions in the Portuguese empire in Brazil (which were consolidated after the Treaty of Tordesillas in 1493) were similar to those of Spanish colonies, and the relações, like the audiencias, were established to curb the excesses of the captain-generals’ authority. Three centuries of Spanish and Portuguese domination in Latin America have demonstrated that distance -not only geographical, but also cultural and political- effected the development of a significantly different legal environment, which was the result of a context that was fundamentally different from that in Europe. The crown’s difficulties in ruling an overseas empire and setting up a common legal system were compounded by the large expanse of the Latin American continent, which, in the early l9th century, was populated by only 21,760,000 inhabitants. 29 Napoleon’s invasion of the Iberian Peninsula ignited an independence movement that gave birth to new republics between 1810 and 1825.30 It is interesting to note the extent to which the ideas of the French Revolution and the U.S. constitutional process
J. Kleinheisterkamp, “Development of Comparati ve Law in Latin America” [hereinafter “Kleinheisterkamp”] in M. Reimann & R. Zimmermann, The Oxford Handbook of Comparative Law (Oxford: Oxford University Press, 2006) 261, at 261-301. See also K.L. Karst & K.S. Rosenn, Law and Development in Latin America (Berkeley: University of California Press, 1975), at 10-64. 26
Kleinheisterkamp, id. , at 265 (quoting a proverb from colonial times: “The law is acknowledged but not enforced”). 27
With regard to the development of law in Spanish colonies, see D. Clark, “Judicial Protection of the Constitution in Latin America” (1975) [hereinafter “Clark”] in J.H. Merryman, D.S. Clark & J.O. Haley, The Civil Law Tradition: Europe, Latin America, and East A sia (Charlottesville: Michie, 1994) 351, at 351-99. 28
29
Clark, id., at 372-73.
Brazil declared its independence in 1822. It remained a centralist empire until 1889, however, when it became a federal republic. 30
of 1787 influenced these Latin American independence movements. 31 Such influence is apparent in the Argentine Constitution of 1853, which was modelled after the U.S. Constitution;32 it included a system of checks and balances that were based on U.S. laws. Similarly, the Supreme Court of Argentina upholds the tradition of citing prior court decisions from the U.S. Supreme Court. As a note of curiosity, section 24 of the Argentine Constitution provides that the Argentine Congress shall promote the establishment of jury trials. Despite the clear language of the Constitution, jury trials were not provided for in Argentina’s civil or criminal codes of procedure. The constitutional convention of 1853 also established that Congress was entrusted with the drafting of civil, commercial and criminal codes, among others, and this was interpreted as an adoption of French ideas. The Constitution of the Republic of Brazil of 1891 adopted a federal system of government that has, except for some amendments, remained in effect,33 under the direct influence of the U.S. Constitution. During the l9th and 20th centuries, Latin American countries followed the French tradition of written codes of law. With regard to procedural law, the countries in the region, as pointed out by Enrique Vescovi, 34 patterned their laws of civil procedure on the Spanish Civil Procedure Act of 1855.35 In Argentina, 392 sections out of the 800 sections of the Code of Civil and Commercial Procedure of 1880 were modelled after the Spanish Civil Procedure Act. In Peru, the Code of Civil Procedure of 1912, in effect up until 1993, was framed after the Spanish Civil Procedure Act of 1881.36 Latin America’s adherence to the civil law tradition is an assimilation effort that conceals significant issues. For reasons of brevity, I will only examine certain aspects of Latin America that will contribute to a better understanding of its current situation. For more than 300 years, Latin America was merely a colony separated by a long distance from central power. Its conceptions of the law and the practice of law were completely different from those that prevailed in Spain and Portugal.37 The social problems that the law was meant to govern in Europe contrasted with those that existed in the colonies.
31
See M. Schor, “Constitutionalism Through the Looking Glass of Latin America” (2006) 41 Tex. Int’l L.J.2.
Although the Argentine Constitution has been amended several times, its institutional design has, except for a few changes, retained its original features. 32
See J.C. Barbosa Moreira, Temas de Direito Processual (Sao Paulo: Editora Saraiva, 2004), at 255 et seq . (c. “A importaçao de modelos jurídicos”); A. Pellegrini Grinover & K. Watanabe, “The Reception and Transmission of Ci vil Procedural Law in the Global Society - Legislative and Legal Assistance to Other Countries in Procedural Law: Brazilian Report” [hereinafter “Grinover and Watanabe”] in M. Deguchi & M. Storme, eds., The Reception and 33
Transmission of Civil Procedural Law in the Global Society: Legislative and Legal Education Assistance to Other Countries in Procedural Law (Antwerpen-Apeldoorn: Maklu, 2008) 223, at 223-34.
E. Vescovi, Elementos para Una Teoría General del Proceso Civil Latinoamericano (México D. F.: UNAM, 1978), at 1-23. 34
While a new Civil Procedure Act was enacted in Spain in 1881, the Civil Procedure Act of 1855 was more influential. 35
36
J. Monroy Gálvez, Teoría General del Proceso (Lima: Palestra, 2007), at 118-24.
J. Prats i Català, Liderazgos, Democracia y Desarrollo: La Larga Marcha a Través de las Instituciones (Institut Internacional de Governabilitat de Catalunya, 2000). 37
The elements of a hierarchical society 38 were present in a context where power was divided between the king’s delegates, who enjoyed a certain degree of autonomy, and the crown, which was as distant as it was purported to be centralized. To overcome these difficulties in the new nations of Latin America, the independence movement replicated the enlightenment ideals of codification and a constitutional, republican framework, in which the system of checks and balances was supported by a strong belief in the judges’ ability to achieve an equal distribution of power. Codification of laws in the countries of the region was merely an attempt to overcome lawlessness, rather than an expression of confidence in the law. The adherence to a constitutional framework similar to that in the United States was not a vote of confidence in judges as agents of the balance of powers, but the adoption of an institutional system that would enable both the attainment of economic development and the respect of essential liberties. Every nation in the region sought the best possible balance in the adoption of their legal systems. Civil law and common law exerted a simultaneous influence on Latin America, and the nations each adjusted such rules and provisions to their own circumstances and idiosyncrasies. The adoption of codes of procedure that were based on the Spanish law of civil procedure of the l9th century can be explained by reference to the formalities that were used in the conduct of proceedings up until the time the new nations were created. These formalities included close ties with Spain, the use of a language that was very similar to that used in the Spanish courts, and a certain judicial conservatism in both judges and lawyers (who were used to settling conflicts under rules of procedure that were similar to those that had been used during colonial times). As I have mentioned above, the organization of these codes of procedure, which date back to the 19th century, blindly follows the medieval tradition of colonial times. IV. THE MODEL CODE OF CIVIL PROCEDURE FOR IBERO-AMERICA AND ITS INFLUENCE ON THE PROCESSES OF REFORM During the second half of the 20th century, the deficiencies in the model of civil procedure that Latin America had inherited prompted the search for alternatives that were capable of bringing about change. The consensus among legal scholars about the need to review the guidelines that had inspired the codes of procedure of the countries in the region led the Ibero-American Institute of Procedural Law to develop a draft set of basic standards in 1970. These standards were followed in 1982 by a Model Code for Ibero-America.39 The drafting of the Model Code was entrusted to Professors Adolfo Gelsi Bidart, Enrique Vescovi and Luis Torello. The Preamble to the Model Code recites that Here, the term “hierarchical society” is used in the sense that Mirjan Damaška has given to it. See M. Damaška, The Faces of Justice and State Authority: A Comparative Approach to the Legal Process (New Haven: Yale University Press, 1986). 38
See Instituto Iberoamericano de Derecho Procesal [Ibero-American Institute of Procedural Law], El Código Procesal Civil Modelo para Iberoamérica: Historia, Antecedentes, Exposición de Motivos y Texto del Anteproyecto 39
(Montevideo: Fundación de Cultura Universitaria, 1988) [hereinafter “Model Code”]. For a deeper analysis of the Model Code, see S. Schipani & R. Vaccarella, eds., Un “Codice Tipo” di Procedura Civile per l’America Latina (Padova: CEDAM, 1990).
it is an attempt to modify the situation that had been created by the legislation then in force in the region. This legislation was characterized by proceedings in which the dominant figures were acts reproduced in writing -“in writing to a despairing degree”, 40 as Eduardo J. Couture would say- slow, sluggish and far removed from reality. The Model Code encouraged the judge to direct the proceedings and to participate actively during the evidentiary stage. Along these lines, it provided for a preliminary hearing that was primarily aimed at attempting to reach a settlement, clarifying the purpose of the proceeding and determining the manner in which the evidence was to be submitted. 41 Although the Model Code did not use the expression ”case management”, the scope that it provided for in its definition of the preliminary hearing warrants a connection with this concept. This is especially evident with regard to the emphases that the Model Code placed on the direct contact of the judge with the parties and his or her active role in directing the proceedings. Particularly noteworthy among the principles that underpin the Model Code are the principle of judge-directed proceedings,42 and the rule that the parties are bound by a duty of good faith and loyalty from a procedural point of view.43 The Model Code also provides for a conciliation stage, which is designed as a phase that precedes the proceeding itself. 44 In Uruguay, the General Code of Procedure was enacted in 1989. It is, for the most part, based on the Model Code, and it also contemplates a hearing-based type of proceeding under the direction of the judge. 45 The Uruguayan reform process was not a mere change in legislation. Rather, it developed in parallel to a broad dissemination of the new text, the active participation of various legal players, the establishment of a suitable infrastructure and an increase in the number of judges, 46 the latter being required to implement the reform. The average time required for the full cognizance of a case in Uruguay is estimated to be between 13 and 15 months.47 Uruguay managed to get the activities of the judge and the parties to align in a direction that largely reduced the duration of the proceedings. 40
E.J. Couture, Estudios de Derecho Procesal Civil (Buenos Aires: Ediar, 1948), 291 et seq .
Proof of the traditional interest of legal scholars in the development of the common law and civil law systems is the quotation inserted by the authors of the Model Code when describing the audiencia preliminar , based on the preliminary hearing under U.S. law, and the reference to the evolution of the Zivilprozessordnung (1895) developed by Klein. 41
42
Model Code, supra, note 39, s. 2.
43
Id., s. 5.
44
Id., ss. 263-267.
For a recent comment on how a preliminary hearing works in Uruguay, see J. Greif, Derecho Procesal (Montevideo: La Ley, 2009), at 63-79 (c. “La Audiencia Preliminar y el Despacho Saneador en el Centro de la Reforma”). 45
According to Uruguayan statistics for 2006, there was one judge for every 6,900 i nhabitants, and each judge handled, on average, around 460 cases. 46
See S. Pereira Campos, El Proceso Civil Ordinario por Audiencias: La Experiencia Uruguaya en la Reforma Procesal Civil (Montevideo: Amalio Fernández, 2008); L.M. Simón, “El Código General del Proceso del Uruguay” (Organization of American States, 2002), online: Centro de Estudios de Justicia de las Américas . 47
In Peru, a new Code of Civil Procedure was enacted under the reform of 1993. The Code adopted the principles of direct contact between the judge and the parties, conciliation, judicial economy and procedural expeditiousness. In this regard, it took the Model Code as one of its sources. The Peruvian Code provides that the judge must ensure the valid establishment of the proceeding by means of a ruling that is designed to cure defects that might result in a declaration of nullity and, also, to correct other errors. After making this ruling, the judge must summon the parties to a conciliation hearing; at this hearing, the matters that are at issue may be defined and the conduct of the evidentiary stage may be agreed upon. 48 Under the old Code of 1912, the average length of a case was 12 years. As a result of the reform, however, the average length was reduced to four years.49 In assessing the impact of the Peruvian reform vis-à-vis the reform in Uruguay, it should be noted that the resources that were used -and the commitment to the reform that was assumed by both the state and civil society- were markedly less significant in the former case. In Uruguay, there was a true process of reform, accompanied both by determined efforts to implement the changes and by strong commitments on the part of the government and the sectors of society that are connected to the judicial field. In contrast, the reform in Peru was saddled with institutional problems that lessened its effectiveness. In Argentina, a federal country in which the provinces enact their own codes of procedure and autonomously organize the administration of justice, there has been a panoply of reforms.50 Although the procedural laws in force in each province are, to a large extent, headed in similar directions, certain reforms -such as the judicial reform in Tierra del Fuego, whose legislation was patterned on the Model Code and underwent a consistent implementation process- have been particularly successful. The trend that may be observed in most provinces, and also in the federal system, is that proceedings have two main characteristics: (1) a lack of direct contact by the judge; and (2) a lack of consolidation of the procedural Acts. Although many of the reforms provide that a preliminary hearing must be held and that the judge must direct the proceeding by keeping in direct contact with the parties, the truth is that, in actual practice, the judge does not direct the proceeding, nor maintain contact with the parties. Although the laws have been modified in the ways noted above, the structure of a court of first instance has long remained unchanged. A court of first instance usually employs 10 or 12 people. This demonstrates that one of the characteristics of the administration of justice is the delegation of duties from the judge to his or her employees. There is a tendency not to consolidate procedural activities, but rather to delegate duties that should be discharged by the judge. It is true, however, that human resources and judicial structure vary from one province to another. In the Province of Buenos Aires, for instance, there is one civil
Sections 468 through 472, Code of Civil Procedure (1993) of Peru. See also E.A. Rodríguez Domínguez, Manual de Derecho Procesal Civil (Lima: Grijley, 2005), at 213-18. 48
See the statistics for 1997 in H. Eyzaguirre, “Marco Institucional y Desarrollo Económico: La Reforma Judicial en América Latina” in E. Jarquin & F. Carril lo, eds., La Economía Política de la Reforma Judicial (New York: Banco Interamericano de Desarrollo, 1997) [hereinafter “Jarquin & Carrillo”]. 49
One of the obstacles to an assessment of the length and the costs of a proceeding in Argentina is the lack of reli able statistical data. 50
judge for every 85,000 inhabitants. This lack of even the minimum resources necessary to provide judicial services lays bare the irrelevance of the regulatory problem. In fact, where the reforms have only addressed regulatory issues, they have neglected structural and operational aspects. As such, it cannot be expected that the situation concerning the civil courts will effectively improve. 51 A study carried out by the World Bank in 2001 states: One of the major problems facing the Argentine courts... is the passive role assumed by judges in lawsuits. Despite the fact that, under the Code of Civil Procedure, judges can avail themselves of various means to handle cases in an active fashion, in many instances judges seem to be reluctant to do so. In addition, although the Code of Civil Procedure provides that the judge must participate in conciliation debates together with the parties (section 360) and that the judge has the power to participate in an active fashion and to speed up the proceeding, judges do not frequently use this freedom of action. Judges say that it is not up to them to have cases move forward within the system. There is a sort of widespread belief that it is the parties, rather than the judge, who should set the pace of a lawsuit. This allows the attorneys for the parties to exercise too much control over the judicial proceeding, which can lead to excessive delays. 52 In the legal culture of Argentina, there is a deeply entrenched practice against the actual direction of the proceedings by the judge. The term “inquisitorial” can hardly be used to describe the position of the judge in the actual development of civil proceedings in Argentina. It could be said, rather, that proceedings are purely “adversarial”, in view of the control that is exercised by the parties over the conduct of the case. 53 Thus, there is a contradiction in that, while laws establish that proceedings are “inquisitorial”, they are, in practice, clearly “adversarial”. Particularly noteworthy is the adoption of class actions in Argentina. The 1994 constitutional reform established the constitutional protection of rights that affect the public interest (section 43), including, inter alia, the right to a healthy environment, and to equal treatment in consumer relations (sections 41 and 42, respectively). The Supreme Court of Argentina has handed down several landmark decisions in cases that affect the public interest, and two of these cases are related to the issues that are being examined here.
I have recently addressed the issue of the status of the reform process in Argentina. See E. Oteiza, “Argentina: El Fracaso de la Oralidad en el Proceso Civil Argentino” in F. Carpi & M. Ortells, Oralidad y Escritura en un Proceso Civil Eficiente (Valencia: Universitat de València - IAPL, 2009), at 413-39. 51
M. Dakolias & L. Sprovieri, Argentina: Evaluación del Sector Jurídico y Judicial (Washington, DC: World Bank, 2002). 52
The Federal Code of Civil Procedure of Argentina imposes upon the parties the duty of faithfulness, probity and good faith. However, there are no controls on ensuring effective compliance with this duty. 53
The first case is Mendoza c. Estado Nacional,54 which examined the pollution of the Riachuelo, one of the watercourses that flow into the River Plate. Naturally, this case had multiple connotations, but I will only mention here that the Supreme Court acted as a court of first instance and effectively handled the proceedings. Over the two years that led to the conclusion of the case, which was particularly complex, the Supreme Court held a series of hearings for the assessment of the evidence. The public followed this case with interest. The second case is Halabi c. Poder Ejecutivo Nacional,55 in which the Supreme Court passed judgment upon the constitutionality of an Act that enabled the government to intervene in telephone and Internet communications. The highest judicial authority declared the Act unconstitutional because it constituted a breach of the right to privacy. The Court then described the minimum standards for collective interest actions, based on class actions and collective interest actions under the laws of Brazil. Opinions continue to differ about whether or not Argentina’s current procedural laws, and the conduct of cases by judges and lawyers, can be used to successfully conduct collective interest actions that will conclude within reasonable time frames, at reasonable costs, and with decisions that are based on true facts and proper applications of the law. In 1973, Brazil adopted the Código de Processo Civil,56 which, after major amendments, remains in effect today. 57 The current wording of the Code contemplates a hearing that is primarily aimed at attempting to reach a settlement, establish the factual matters that are in dispute, resolve any pending issues, determine the manner in which the evidence is to be submitted and schedule the hearings (section 331). José Carlos Barbosa Moreira notes the difficulty of attempting to assess the performance of civil procedure in Brazil in the absence of statistics that provide accurate figures about the duration of proceedings. 58 Candido Dinamarco 59 outlines the difficulties that judges must face in the performance of their functions, where they are burdened with heavy case loads -an issue that is demonstrated by the fact that, in Brazil, there is only one judge for every 25,000 inhabitants. For the decisions of the Supreme Court of Argentina, see onli ne: also in Fallos de la Corte Suprema de Justicia de la Nación (Buenos Aires: La Ley), 331:1676, 2008/7/23, decisions dated June 20, 2009 and July 8, 2008. 54
The decision can be found at , also in Fallos de la Corte Suprema de Justicia de la Nación (Buenos Aires: La Ley), 332:111, decision dated 2009/02/24. 55
The first Brazilian Code ofProcedure datesback to 1939, despite the fact that the Republi can Constitution was promulgated in 1891. 56
With regard to the performance of the civil courts in Brazil, see S. Bermudes, "Administration of Civil Justice in Brazil" in Zuckerman, Civil Justice , supra, note 8, 347, at 347-62. 57
J.C. Barbosa Moreira, “La Significación Social de las Reformas Procesales” in Revista Peruana de Derecho Procesal (Lima: Estudio de Bealunde & Monroy, 2008), vol. X, at 7-23 (stating that “in Brazil it is very difficult to determine whether procedural reforms actually accomplish, in the legal practice, the legislative intent. This is no doubt mostly due to absence of statistical data. Court statistics are scarce in my country, and those avail able are not always reliable”). 58
C.R. Dinamarco, “El Futuro del Derecho Procesal Civil” in XV Jornadas Iberameri canas de Derecho Procesal (Bogotá: Universidad Libre, 1996), at 289-329 [hereinafter “Dinamarco”]. 59
Anglo-American law has influenced Brazilian civil procedure. I will only mention two representative examples. The first is the promulgation, in 1984, of the Lei dos Juizados de Pequenas Causas,60 which was patterned on U.S. Small Claims Courts. 61 The 1988 Brazilian Constitution mandated that the Federal Union and its states should set up small claims courts, later known as special courts, for the conciliation, settlement and enforcement of small claims (i.e., cases in which there are limited amounts in dispute). Special court proceedings are based on the principles of oral pleading, unwritten form, judicial economy and procedural expeditiousness. 62 Although this system looked promising at first, the courts eventually became increasingly congested. The primary purpose of small claims courts is to encourage people’s access to the courts. This requires an adequate structure to manage a given case load. The secondary purpose of these special courts is the hearing and determination of class actions. In 1985, Brazil enacted the Public Civil Action Act,63 which gave the Attorney General’s Office, other governmental bodies and other associations legal standing to sue for the protection of environmental, historical or cultural rights. Those were the first steps toward the incorporation of class actions in Brazilian procedural laws. The 1988 Constitution adopted the collective interest protection principle for the protection of constitutional guarantees. The Consumer Protection Code, under which rights are classified into collective, diffuse and homogeneous individual rights, was enacted in 1990. In this way, class actions for damages and mass tort cases 64 were incorporated into Brazilian procedural laws. It remains to be seen whether or not this system works well. One of the problems that it may face is the absence of a proper legal proceeding to discuss the complex issues that are brought to the courts by the community that is affected by the collective interest. We should note that Latin American laws of civil procedure frequently encourage the judge to actively direct and control the proceeding, but to do so in consultation with the parties. In general, judicial reforms have incorporated pre-trial hearings that attempt to reach a settlement. Should this endeavour fail, however, the judge may proceed, in consultation with the parties, to determine the parties’ claims and continue with the prosecution of the case. Such schemes have been successfully implemented in Uruguay. They have not yet been successful, after countless stops and starts, in the other countries of the region. Another issue is the adoption of collective interest actions. The courts have a leading voice in the discussion of public policy issues. The challenge here is to avoid frustrating the expectations of a reasonable debate by providing adequate solutions to overcome conflicts that have considerable social impact. The salient role of civil justice in the determination of collective interest cases may be a weighty factor that can make Latin 60
61
Law 7244. With regard to the model used, see Grinover & Watanabe, supra, note 33; Dinamarco, supra, note 59.
With regard to Brazil's special courts, see P.C. Pinheiro Carneiro, Acesso à Justiça: Juizados Especiais Cíveis e Ação Civil Pública (Rio de Janeiro: Editora Forense, 2000), at 105--74; C. Villadiego Burbano, “Estudio Comparativo: 62
Justicia Civil de Pequeñas Causas en América” (2007), online: Centro de Estudios de Justicia de las Am éricas . 63
Law 7347.
64
See A. Gidi, Class Actions in Brazil: A Model for Civil Law Countries (2003) 51 Am. J. Comp. L. 311.
American states focus more strongly on the establishment of legal rules through debate with regard to the scope of rights before the courts. That has led the Ibero-American Institute of Procedural Law to make a Model Code for Collective Interest Actions.65 V. CIVIL JUDICIAL REFORM: STRENGTHENING OF THE DEMOCRATIC PROCESS AND ECONOMIC DEVELOPMENT The reforms that I have discussed above took place while concern was growing for the administration of justice from the “transnational constellation”. The status of civil justice was seen from the standpoint of the consolidation of democratic governments, along with social and economic development. The situation in Latin America has been the focus of international attention in recent decades. It includes problems with regard to the continuation of governments and the difficulties that these governments face in their efforts to establish their economies in reasonable relationships for the exchange of goods. As experience has demonstrated, the actual circumstances in Latin America were highly complex, and solutions that were designed for a variety of other circumstances simply did not work when applied in the region. As a result, the forms of international cooperation with the region have gradually changed. The 1970s saw the burgeoning of the Law and Development66 movement, sponsored by leading law schools such as Harvard, Wisconsin, Stanford and Yale. These schools believed that, to a large extent, the problems of the countries of the region could be overcome through the adoption of a U.S.-style legal system, along with changes in the way that law was taught ( i.e., through the incorporation of the case method). This approach was abandoned in the mid-1970s. Its detractors claimed that it was not capable of overcoming the tensions that it created in the societies on which it sought to have an impact. One of the proposals that was put forward by the movement called for a revitalization of the inter-relationships among the existing law schools; unfortunately, this effort was also abandoned. The loss of the Law and Development movement’s credibility was one of the reasons why the levels of exchange between U.S. and Latin American law schools gradually fell. The impact of the teaching of law and of law schools should not be minimized in the region. Latin America receives and develops particular ways of both conceiving and practising law that are influenced by both traditions. Law schools are one of the forums where the necessary legal reforms should be considered and drafted. Law schools also train the attorneys who will later have a quasi-monopolistic role as the players in the legal system. A careful determination of the incidence of both factors should conclude that one of the pillars of reform projects should be to provide for improved teaching of the law. The interaction of law schools in Latin America with their peers from other traditions, as well as with the various players in the domestic and international scenarios, would need to be reviewed once more, and in greater depth. See A. Gidi & E. Ferrer Mac-Gregor (coordinators), Código de Procesos Colectivos: Un Diálogo Iberoamericano (México D.F.: Porrúa, 2008). 65
For the development of cooperation systems, see L. Salas, “From Law and Development to Rule of Law: New and Old Issues in Justice Reform in Latin America” in P. Domingo & R. Sieder, eds., Rule of Law in Latin America: The International Promotion of Judicial Reform (London: Institute of Latin American Studies, 2001) 17, at 17-46 [hereinafter “Domingo & Sieder”]. 66
The 1990s saw the birth of the Rule of Law movement, the goal of which was to improve access to justice and to enhance the quality, efficiency and transparency of justice. Originally, particular attention was paid to government sectors, and some failures there demonstrated that the various manifestations of civil society needed to be taken into account. The World Bank and the Inter-American Development Bank were significant participants in the financing of projects. The volume of financial resources that was invested stands in stark contrast to the scant results that were achieved. This led to a focused attention on the strategies that were employed, which concentrated primarily on economic efficiency guidelines rather than on cultural, institutional and political problems. 67 One of the main initiatives that was implemented by multilateral credit agencies was to sponsor ADR, including mediation. Projects were financed in 18 countries with a view to promoting the use of mediation. In 2002, the Inter-American Development Bank carried out a highly critical assessment of the result of law reform in connection with mediation. Despite the complexity of the region and the differences between its states, it was assumed that, since the problems in the administration of justice were difficult to resolve, an attempt to find a solution outside the system was a valid alternative. This prejudice led to parties being encouraged to settle their differences without the aid of the courts. This solution was clearly inadequate. Without a judiciary that is able to achieve its purpose, mediation can become a source of great inequity. In this situation, mediation does not help to strengthen respect for the law; in fact, it has the opposite effect. In Argentina68 and Peru,69 mediation was introduced as a mandatory step prior to gaining access to the civil courts. The basic rationale for this, in both countries, was to ease congestion in the administration of justice. Mediation and other alternative dispute resolution mechanisms are instruments that can provide valuable results. The fact that they are supplementary to the process underscores the freedom of the parties to reach private agreements regarding their rights. Promoting their dissemination while the parties have the option of resorting to a relatively efficient system of justice is an option that must be examined in the specific context of the values and the culture of any given society. Detractors of ADR have emphasized that encouraging ADR could entail the privatization of a public scenario, while also limiting the development of the law that takes place through discussions between the parties. At the same time, ADR fails to
From the vast bibliography on judicial reform, I will cite only W.C. Prillaman, The Judiciary and Democratic Decay in Latin America: Declining Confidence in the Rule of Law (Westport: Praeger, 2000); L. Hammergren, Envisioning Reform: Improving Judicial Performance in Latin America (University Park: Pennsylvania State University Press, 2007); J.E. Vargas, ed., Nueva Justicia Civil para Latinoamérica: Aportes para la Reforma (Santiago de Chile: CEJA, 2003); Domingo & Sieder, id.; Jarquin & Carrillo, supra, note 49; E. Buscaglia, M. Dakolias & W. Ratliff, Judicial Reform in Latin America: A Framework for National Development (Stanford: Hoover Press, 1995); M. Dakolias, Court Performance around the World (Washington, DC: World Bank, 1999); and Inter-American Development Bank, La Economía Política de la Reforma Judicial: Seminario Patrocinado por el Banco Interamericano de Desarrollo (Montevideo: Banco Interamericano de Desarrollo, 1997). 67
Act No. 24573 (1995) (in effect in the city of Buenos Aires); Act No. 13951 (2009) (in effect in the Province of Buenos Aires; will establish mediation from 2010). Considering the population of these two jurisdictions, half of the population will have to submit their cases to mediators as a prior requirement toactually filing their lawsuits. 68
Act No. 26872 (1997) (establishing that mediation shall be mandatory within the jurisdiction of the departments of Lima and El Callao). 69
protect those who are at a disadvantage; as a result, the agreements that are reached are unfavourable to them. 70 There are many aspects of mediation that should be addressed in the Latin American context. A key issue, however, is the development of mediation in countries with judiciaries that are experiencing a severe efficiency crisis. 71 The problem lies in the fact that, where the response of the judiciary is inadequate, mediation is not actually an option that is available to whomever seeks to have a right respected. VI. CONTEXT AND RELEVANCE When discussing convergence, we cannot fail to notice the force of divergence. Globalization seems to give everything a uniform tint. When analyzed in depth, however, diversity gains significance. The tension between what is local and what is transnational emphasizes the differences. It cannot fail to cause amazement that, where both the civil law and the common law traditions have changed substantially, many of their archetypes are now merely remembrances of things past. Equivalently, it is unsurprising that there are still significant differences between them. Change is a cultural process consisting of gradual progress and adjustments. Our era also emphasizes inequality. Various approaches may be proposed in connection with development and under-development; however, it is easy to see that, at the international level, equality among states is undoubtedly relative. The crisis of justice is a phenomenon that occurs in practically all states. In some, however, there are more reasons for discontent than in others. Societies seem to get closer and more distant at the same time -to become both similar and different. The challenge would seem to be to build on the common effort without losing one’s own identity. Latin America has an identity that has remained in the semi-darkness of both a civil law tradition, which it timidly approached, and a common law tradition, where it sought to find answers. The fact that it did not try to find options of its own is, perhaps, one of the reasons why its institutions still show signs of weakness. Efforts such as those made by Uruguay demonstrate that a strong commitment to judicial reform along suitable guidelines has a good chance of success. With an adequate workload, the courts can shorten process times and cooperate with the parties in the search for agreed solutions -a goal that encourages conciliation and that is in no way inconsistent with the alternative channel offered by mediation. Similarly, transplants without regard to context call to mind Damaška’s thought that, if imported rules are combined with native ones in disregard of the local context, See, e.g., D.R. Hensler, “Our Courts, Ourselves: How the Altemative Dispute Resolution Movement is Re-Shaping Our Legal System” (2003) 108 Penn St. L. Rev. 165, at 170-85; H.T. Edwards, “Alternative Dispute Resolution: Panacea or Anathema?” (1986) 99 Harv. L. Rev. 668, at 675-82. See O. Fiss, El derecho como razón pública (Madrid: Marcial Pons, 2007), at 127-145. 70
For a discussion of the problem of mediation in Latin America, see E. Oteiza, “ADR Methods and the Diversity of Cultures: The Latin American Case” in Cadiet, Clay & Jeuland, supra, note 15, 153, at 153-61. 71
unintended consequences are very likely to follow in the living law: “the music of the law changes, so to speak, when the musical instruments and the players are no longer the same.”72
M. Damaška, “The Uncertain Fate of Evidentiary Transplants: Anglo-American and Continental Experiments” (1997) 45 Am. J. Comp. L. 839, at 839-52. 72
