Gathering Evidence in Aid of Foreign Litigation Guide |
|
Argentina |
|
|
(Latin America/Caribbean)
Contributors
Rodrigo Garcia |
|
| Does your jurisdiction permit gathering evidence in aid of foreign litigation? | Yes. |
| Is your jurisdiction a party to the Hague Evidence Convention? Are there other statutory requirements for obtaining evidence in aid of foreign litigation? Please indicate the relevant statutes. | Yes. Argentina is a party to the Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters (the “Hague Evidence Convention”), approved by Law N° 23.480. It made reservations to the application of paragraph 2 of Article 4 and of Chapter II and also made a formal statement that it would not accept any letters of request intended to apply the procedure known in common law jurisdictions as “pretrial discovery of documents.” Regarding additional statutory requirements for obtaining evidence, letters of request are enforced in compliance with the procedural rules of Argentina, including provincial statutes of the Argentine Code of Civil and Commercial Procedure ("ACCCP"). In this sense, Argentine courts must execute letters of request if they comply with Section 132 of the ACCCP, according to which a letter of request must be executed provided that (i) it has been ordered by a foreign competent authority under the Argentine rules of international jurisdiction; (ii) it complies with the requirements established in the Hague Evidence Convention; and (iii) it does not affect Argentine public order. |
| Do requests for gathering evidence require approval by a court or administrative body? Please indicate the appropriate forum for making such requests. | Yes. Argentina has appointed the Office of International Assistance of the Legal Affairs, Department of the Ministry of Foreign Affairs to serve as the Central Authority to receive and serve letters of request from other contracting parties to the Hague Evidence Convention. Once a foreign judicial authority has transmitted a litigant’s letter of request to this agency, it will send it to the competent Argentine judicial authority to produce the requested evidence. |
| What types of information can be sought? Requests for Documents? Written questions? Depositions? | Argentina has not made any express reservations about the types of information that can be sought under Article 3 of the Hague Evidence Convention. Letters of request may include requests for documents and depositions. If written questions are posed to parties, letters of request must comply with Sections 404-425 of the ACCCP, which must be written in an affirmative manner and refer to the controverted facts of the case. In the case of depositions of witnesses, letters of request must comply with Sections 426-430 of the ACCCP. As such, they must include specific questions to be posed to the witness during their examination, which shall not be notified to the witness prior to the hearing. The witness is examined under oath by the court. |
| Who bears the burden of showing whether any privileges apply? | Argentina lacks a general regulation addressing privileges, and while some institutions address issues such as privileges, confidentiality, professional or commercial secrecy, etc., the general principle is that the burden of proof lies on the party alleging the fact. |
| Does there need to be any showing that the information sought is allowable in the foreign jurisdiction in which the action is pending? | No. |
| If your jurisdiction allows depositions, may they be conducted remotely (by videoconference, Zoom etc.) | There is no statute that addresses this issue in particular at a national level. The possibility of remote depositions depends on the jurisdiction and, sometimes, on each court. For example, remote depositions are allowed in the provinces of Buenos Aires and Santa Fe since the COVID-19 pandemic, while some national courts have also permitted remote depositions. |
| Has your jurisdiction adopted any “blocking statutes” that limit the extent to which residents in your jurisdiction may give evidence in a foreign court’s civil or criminal proceedings? | No. |
| May citizens residing in your jurisdiction voluntarily give evidence in a foreign proceeding? If not, what procedure must be followed before they can give evidence? If such restrictions exist, are they enforced in practice? | Yes, citizens residing in Argentina may voluntarily give evidence in a foreign proceeding. No special procedure or restrictions exist. |
| Would your answers differ materially if the foreign proceeding is arbitration, and if so how? | Nothing in the Hague Evidence Convention or the ACCCP prevents parties from resorting to other private mechanisms to produce evidence. Therefore, parties to an arbitration may agree to apply different rules of procedure (either the arbitration rules of the applicable arbitral institution or those rules agreed on by the parties). |
Gathering Evidence in Aid of Foreign Litigation Guide
Yes.
Yes. Argentina is a party to the Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters (the “Hague Evidence Convention”), approved by Law N° 23.480. It made reservations to the application of paragraph 2 of Article 4 and of Chapter II and also made a formal statement that it would not accept any letters of request intended to apply the procedure known in common law jurisdictions as “pretrial discovery of documents.”
Regarding additional statutory requirements for obtaining evidence, letters of request are enforced in compliance with the procedural rules of Argentina, including provincial statutes of the Argentine Code of Civil and Commercial Procedure ("ACCCP"). In this sense, Argentine courts must execute letters of request if they comply with Section 132 of the ACCCP, according to which a letter of request must be executed provided that (i) it has been ordered by a foreign competent authority under the Argentine rules of international jurisdiction; (ii) it complies with the requirements established in the Hague Evidence Convention; and (iii) it does not affect Argentine public order.
Yes. Argentina has appointed the Office of International Assistance of the Legal Affairs, Department of the Ministry of Foreign Affairs to serve as the Central Authority to receive and serve letters of request from other contracting parties to the Hague Evidence Convention. Once a foreign judicial authority has transmitted a litigant’s letter of request to this agency, it will send it to the competent Argentine judicial authority to produce the requested evidence.
Argentina has not made any express reservations about the types of information that can be sought under Article 3 of the Hague Evidence Convention. Letters of request may include requests for documents and depositions.
If written questions are posed to parties, letters of request must comply with Sections 404-425 of the ACCCP, which must be written in an affirmative manner and refer to the controverted facts of the case.
In the case of depositions of witnesses, letters of request must comply with Sections 426-430 of the ACCCP. As such, they must include specific questions to be posed to the witness during their examination, which shall not be notified to the witness prior to the hearing. The witness is examined under oath by the court.
Argentina lacks a general regulation addressing privileges, and while some institutions address issues such as privileges, confidentiality, professional or commercial secrecy, etc., the general principle is that the burden of proof lies on the party alleging the fact.
No.
There is no statute that addresses this issue in particular at a national level. The possibility of remote depositions depends on the jurisdiction and, sometimes, on each court. For example, remote depositions are allowed in the provinces of Buenos Aires and Santa Fe since the COVID-19 pandemic, while some national courts have also permitted remote depositions.
No.
Yes, citizens residing in Argentina may voluntarily give evidence in a foreign proceeding. No special procedure or restrictions exist.
Nothing in the Hague Evidence Convention or the ACCCP prevents parties from resorting to other private mechanisms to produce evidence. Therefore, parties to an arbitration may agree to apply different rules of procedure (either the arbitration rules of the applicable arbitral institution or those rules agreed on by the parties).