Legal basis for bringing private antitrust litigation actions
- Can stand-alone and/or follow-on actions be brought in the context of private antitrust litigation? If so, what is the legal basis for bringing such actions?
Stand-alone actions
Individuals or legal entities injured due to activities sanctioned by the Antitrust Law can file a claim for damages in accordance with Argentine legislation, before the judge having jurisdiction (section 62, Antitrust Law No. 27,442 of Argentina (Antitrust Law)). In addition, chapter IX of the Antitrust Law regulates private antitrust litigation.
The Antitrust Law and Argentina's legal system do not impose a prior finding of any antitrust infringement as a condition for initiating private antitrust litigation (however, see below, Follow-on actions).
In addition, the Antitrust Law does not distinguish between bilateral and multilateral antitrust infringements (for example, a cartel), and unilateral antitrust infringements (for example, behavioural infringements, monopolisation, or abuse of market power). Therefore, stand-alone private antitrust litigation is available for bilateral, multilateral and unilateral infringements.
A judgment or decision relied on as a basis for an action need not be final and have conclusive effect (res judicata). However, the antitrust court's resolution in relation to a violation of the Antitrust Law has the force of res judicata once it becomes final. The judge having jurisdiction, in determining the award of damages, bases its decision on the conduct of the parties and the facts of the case (established in the resolution of the Antitrust Court). Actions must be filed with the Civil and Commercial Federal Courts at national level or Federal Court in the provinces.
Stand-alone actions are adversarial.
Follow-on actions
Private antitrust actions are usually initiated as follow-on actions, in reliance on the Antitrust Court's prior finding of infringement. However, it is not a requirement that there is a prior finding of infringement (see above, Stand-alone actions).
The same rules apply as for stand-alone actions.
Parties to an action
- Who can bring an action and what must be demonstrated to commence an action?
Stand-alone actions
The existence of actual harm due to an antitrust infringement must be demonstrated to commence a stand-alone action.
There is no precedent clarifying whether third parties can bring actions and, in this context, whether direct and indirect purchasers can bring actions. The general rule is that anyone who suffers harm has standing to initiate a private action.
Follow-on actions
The antitrust court's resolution in relation to a violation of the Antitrust Law, once it becomes final, has the force of res judicata, so the claimant of a follow-an action must demonstrate that the already proved infringement caused them harm.
- Is it possible to bring actions on behalf of multiple claimants (for example, collective actions)?
Stand-alone actions
Multiple claimants. It is possible to bring actions on behalf of multiple claimants (for example, collective actions). Consumer associations or public bodies have standing to file collective actions.
In addition, multiples parties can act as claimant (litisconsorcio activo). However, in this kind of action the ruling does not have the same effect as a ruling issued in a collective action. In a multiple claimant action, the ruling only binds the parties that have directly acted in the proceeding as claimant or defendant.
Opt-in or opt-out. Based on consumer law, a court settlement must contemplate the consumer's opt-out right. However, legislation does not contemplate opt-in or opt-out regarding any collective action.
Certification. Supreme Court regulation imposes collective action certification. However, Supreme Court regulation does not require any particular number of consumers to be represented by the consumer associations to certify the collective action.
- On what basis will a court or tribunal assume jurisdiction with respect to a claim?
Stand-alone actions
Claimants can bring stand-alone and follow-on actions against corporate entities domiciled within their jurisdiction.
- Can actions be brought against individuals (such as directors of corporate entities), whether domiciled within, or outside, the jurisdiction?
Stand-alone actions
Actions can be filed against companies and individuals, but we are not aware of any actions filed against individuals. Claimants can bring actions against corporate entities domiciled outside Argentina if their acts or activities have effects within the Argentine market.
Limitation periods and forum
- What are the relevant limitation periods for stand-alone and/or follow-on actions? When do these start to run? Can these be extended?
Stand-alone actions
The statute of limitation sets the limitation period at five years after the infringement was committed (section 72, Antitrust Law).
In cases of continuous behaviour, the limitation term begins to run from the moment infringement ceased.
In the case of action for compensation for damages, under Article 62 of the Antitrust Law, the period of limitation is either:
- Three years from when the:
- infringement was committed or ceased; or
- injured party becomes aware of the infringement or it may be reasonably expected to have knowledge of it.
- Two years after the sanctioning resolution is final.
- Where can an action be commenced? Are there specific courts or tribunals before which stand-alone and/or follow-on actions may be brought?
Private antitrust litigation is commenced in the Civil and Commercial Federal Court, for both stand-alone and follow-on actions.
- Where actions can be brought before different courts and tribunals, what are the comparative advantages and disadvantages of bringing actions in each forum?
Private antitrust litigation must be filed with the Civil and Commercial Federal Courts at national level or the Federal Court in the provinces. The parties cannot choose the courts or tribunals that will rule on the case.
Standard of proof and liability
- What is the standard of proof?
Standard of proof
If there is a final ruling of the Antitrust Court that there has been an infringement of the Antitrust Law, that resolution has the force of res judicata and it must be used in the private antitrust action to prove the facts.
If there is no antitrust court resolution confirming the Antitrust Law infringement, the claimant must provide evidence of the infringement.
In both cases, the complainant must prove the factual relationship between the damages and the infringement invoked.
Burden of proof
The claimant must prove the facts, using evidence from the following sources:
- Documents.
- Experts.
- Witnesses.
- Third parties.
Rebuttable presumptions
No rebuttable presumptions exist to shift the burden of proof.
- Is liability on a joint and several basis?
If the infringement was perpetrated by more than one person, all the persons involved are jointly and severally liable to the damaged party, regardless of the recovery actions that may apply (section 65, Antitrust Law).
The liable individuals or legal entities may be entitled to an exemption or reduction of the sanction, if the leniency programme in chapter VIII of the Antitrust Law applies. However, an individual or legal entity that used the leniency programme continues to be jointly and severally liable to its direct or indirect purchasers or suppliers, and other damaged parties, if it is impossible to obtain full redress for the damages caused by the other companies that were involved in the same violation.
The defendant can file a contribution claim against other infringing parties. The Antitrust Law is not clear enough on the statute of limitation term for contribution claims. The most conservative interpretation is two years counting from the date that the defendant paid the damages. However, there are grounds to support a five-year statute of limitation. There are no relevant precedents clarifying this issue.
Costs and timing
- What are the recent trends in relation to the costs of bringing an action before the relevant courts/tribunals?
Stand-alone actions
The costs of bringing an action are:
- Tax Court: 3% of the amount of the claim plus interest.
- Lawyers' fees: between 11% and 20% of the cost of the process (that is, the claimed amount plus interest) or agreement reached in the first instance. The cost at second instance is estimated to be up to 25% of the fees granted in the first instance.
- Experts' fees: the fees of the experts involved are estimated to be between 5% and 10% of the amount of the process (Article 21, Law 27,423).
- Mediator fees: these are charged as established in Decree No. 1467/11 (amended by Decree No. 2536/2015), and they are usually around ARS60.
- What is the applicable principle regarding the apportionment of the costs of the action? Is there a "loser pays" approach to costs?
Stand-alone actions
The applicable principle related to the cost of the action is that the loser pays.
When filing the complaint the claimant must pay a fee to the Tax Court. If the claimant wins the case, it can recover that fee from the defendant.
The winner may be obliged to pay court appointed experts' fees, if the loser does not pay them.
- Can parties insure against costs risk associated with an action?
Stand-alone actions
It is possible to insure against costs risk associated with an action, using surety insurance (Seguro de Caución). However, there is no precedent for this, and insurance companies may be reluctant to offer this insurance.
- Can a third party fund the costs of bringing an action?
Third party funding is allowed, but is not used frequently.
- Can claimants assign their claim to a third party funder?
A claimant can assign its claim to a third party funder, but they remain liable for associated costs if the complaint is rejected. However, there is no history of claims being assigned to third party funders.
- Can parties engage legal representation under either a "conditional" fee arrangement, or a "damages-based" fee arrangement?
Parties can engage legal representation under either a conditional fee arrangement or damages-based fee arrangement. However, these arrangements must comply with the legal minimum terms, or the arrangement is null and void, and not binding between clients and lawyers.
- If it possible for a defendant to a claim to bring an application for security for costs?
It is possible for a defendant to a claim to bring an application for security for costs. When answering the complaint, the defendant must file a request for seizure (Excepcion de Arraigo). However, in most cases this is impractical because various international treaties signed by Argentina require equal treatment of parties in every jurisdiction, so a request for seizure could not be applied.
- What is the current trend, if any, regarding the period of time from commencing an action to a subsequent first instance judgment by a competent body?
Stand-alone actions
There is a lack of precedent in this field, but damages actions regarding consumer rights usually take between three to four years, which may be a good indicator. For example, this period of time applied in recent rulings regarding consumer claims against internet service providers, credit card and bank companies.
The time period may increase in cases of class actions, as the claimant must comply with the Supreme Court requirement to certify the existence of the class.
In addition, the lack of court experience and precedent in this kind of claim may cause an increased time period.
Follow-on actions
Follow-on actions may take less than three years, as the court only considers the amount of damages caused by the infringing party and the causal relationship between the infringement and the damages.
Pre-trial applications and hearings
- Where statements of case are lodged with the relevant court or tribunal, can third parties seek to obtain copies?
Stand-alone actions
Third parties must formally ask the relevant court for copies of statements of case. However, courts are unlikely to grant third parties the right to obtain copies.
To avoid third parties having access to the relevant files, the parties can ask the court to keep the file confidential, arguing that the documents and the information discussed in the file is sensitive.
- Can a claimant seek interim measures?
Stand-alone actions
The claimant can request precautionary measures. It must do all of the following:
- Prove that there is a likelihood of success on the merit of the case (fumus bonis iuris).
- Prove the danger of delaying the measure sought (periculum in mora).
- Provide a security for the damages that the precautionary measure may cause.
Local regulation imposes a conservative approach to issuing precautionary measures. There is a lack of precedent in private antitrust actions, but in other types of claim there appears to be a tendency to grant precautionary measures in perhaps debatable circumstances.
- Can a defendant seek to dispose of all or part of the action prior to a full trial?
A defendant can apply to "strike out" all or part of a stand-alone or follow-on action, to dispose of the action before a full trial. The strike-out implies the recognition of the infraction.
In cases of a partial strike-out, the court determines whether or not it is possible to continue the remaining part of the action.
There is a lack of precedent in private antitrust actions, so a trend cannot be established.
- Can a defendant seek to stay an action (for example, pending the outcome of an investigation by a competent competition authority, or an appeal)?
A defendant can seek to stay an action pending the outcome of an investigation by a competent competition authority or an appeal. However, the court may not grant the stay. There is a lack of precedent on stays in private antitrust actions, so a trend cannot be established.
- Can a party seek to have a specific issue (such as limitation) tried as a preliminary issue in advance of a full trial?
Claimants must file all their issues in the claim form at the outset. However, defendants can file preliminary defences (for example, based on limitation, jurisdiction, or representation) and the court can rule on these defences before it analyses the other issues filed with the complaint.
The parties cannot agree that a specific issue is tried as a preliminary issue in advance of a full trial. Only a court can rule on this matter.
Evidence and legal privilege
- Are existing findings of fact and/or infringement in a decision or judgment of a competent authority or body binding in the context of an action?
Competition authority decisions
The antitrust court's resolution in relation to a violation of the Antitrust Law, once it becomes final, has the force of res judicata (that is, it is final and cannot be pursued further by the same parties).
The judge having jurisdiction bases its decision on damages on the conduct of the parties and the facts established in the antitrust court's resolution, issued in accordance with the provisions of the Antitrust Law and the Civil and Commercial Code.
- What is the evidential status of findings of fact and/or infringement in a decision or judgment of a body in a third country?
The finding of a fact and/or infringement in a decision or judgment in a third country is not binding in Argentina. It can be used as an example of what happened in similar situations in a different jurisdiction, but the court is not bound to follow that decision.
- If discovery is available, what is the general procedure for discovery, and what documents would need to be disclosed?
Parties should file any documents related to the case. Not doing so can result in negative presumptions against them (section 388, National Procedural Civil and Commercial Code).
In addition, section 326(4) of the National Procedural Civil and Commercial Code allows parties to request documents to be exhibited or attached to the claim form before the trial, if the requesting party proves that the relevant document cannot be obtained during the normal course of the process.
It is not possible to have access to:
- Copies of confidential versions of competition authorities' decisions.
- Copies of leniency materials that the defendant prepared and submitted to the competition authorities, if they are confidential.
- Any other confidential documents or materials not in the defendant's possession or control.
All information and documents controlled by third parties, including antitrust court files and documents, can be offered and obtained as evidence, if the court allows it. In general, courts allow this evidence if it is relevant to resolve the subject matter of the private antitrust litigation. To obtain this evidence, the parties must request it together with the evidence offered when they file or answer a complaint.
Additionally (and exceptionally), the court can order disclosure of evidence held by third parties without a party request, if the court considers it relevant to better resolve the litigation.
- Can a party oppose the provision of any documents not in their possession or control?
A party can oppose the provision of any documents not in their possession or control. However, if it is proved that the relevant document exists, the relevant document can be used as a presumption against a party and fines may be imposed. This opposition is made with a writ filed with the court.
- Can parties rely on legal privilege to withhold documents from inspection?
Parties can rely on legal privilege to withhold documents from inspection, but not showing documents can result in the application of the presumptions described in Question 27 and Question 27.
Alternative dispute resolution
- Can the parties seek to resolve the action through alternative dispute resolution?
Parties can try to seek to resolve an action through alternative dispute resolution (ADR).
In some jurisdictions (for example, the City of Buenos Aires and the Province of Buenos Aires), mediation is required as a legal pre-requisite to file an action. If the parties do not reach an agreement through mediation, the claimant can file a claim with the courts.
It is not possible to determine in advance whether it is advisable to call for mediation where it is not mandatory. Whether mediation is advisable should be determined based on the particularities of the relevant case, including the facts, the parties, the evidence available, and the confidentiality of the information obtained or to be obtained, among others.
Settlement or discontinuance of an action
- What are the tactical advantages and disadvantages associated with making an offer of settlement?
Stand-alone actions
Advantages. Parties avoid having an adverse ruling.
Disadvantages. The non-offering party and/or the authority may interpret the offer as indicative of a weak position of the offering party.
- Is permission required from the relevant court or tribunal to settle any action prior to or during trial?
Permission is not required from the court to settle any action before trial. During trial, parties can request the court to rule admitting the settlement. There are no cost implications.
There is no specific regime for class actions, unless they involve a consumer law infringement. If consumer law is involved, before settling an agreement the Public Prosecutor must agree with the terms of the agreement and the court must issue a ruling approving it.
Proceedings at trial
- Are actions heard by a jury?
Actions are not heard by a jury.
- How is confidential information protected during the course of proceedings?
The parties can ask the court to keep documents confidential, to avoid third parties accessing them (see Question 19).
- What evidence is admissible?
The following evidence is admissible:
- Documents.
- Appointed experts, who can be cross-examined at trial.
- Witnesses, who can be compelled to attend hearings, and can be cross-examined at trial.
- Rogatory letters.
- Any other kind of evidence that the court considers appropriate, including evidence from criminal proceedings.
Available defences
- Is a "passing-on" defence available?
Defendants can argue that a claimant is not entitled to claim under the proceeding, as it has passed on the overcharge to indirect purchasers and therefore suffered no loss. They must provide to the court and/or authority the names of relevant third parties.
This defence must be invoked when replying to the claim.
There are no precedents on passing on defences.
- Are any other defences available?
Defendants can argue lack of jurisdiction and the expiry of the statute of limitation, among other defences (see Question 23).
Available remedies
- Are damages available, and if so, on what basis are damages awarded?
Damages
The Civil and Commercial Code allow a party to claim for any and all damages caused by the infringing party.
Individuals who violate the provisions of this law must, at the request of the damaged party, pay a civil fine to the damaged party (section 64, Antitrust Law). The fine's amount is determined by the judge having jurisdiction and is based on the seriousness of the event and other circumstances of the case, regardless of any other compensation that may apply.
Interest
Interest is awarded in all cases, mainly due to the high inflation that Argentina experiences periodically.
- How are damages quantified?
The principle is that damages must be fully repaired. The parties can ask the court to appoint independent experts to quantify the damages. The experts will have the appropriate professions to establish the damages (for example, they may be accountants, economists or engineers).
- Are any other remedies available?
The claimant can seek a cease and decease order. The claimant can also try to obtain precautionary measures to prevent the damages that the conduct may cause during the process.
Appeals
- Is it possible to appeal the judgment of the relevant court or tribunal?
It is possible to appeal the judgment of the relevant court or tribunal. The appeal must reject and criticise, with concrete arguments, the mistaken arguments of the appealed ruling.
Reforms
- Are there any reforms proposed or due regarding the legal regime applicable to private antitrust actions?
There are no proposals for reform. The current Antitrust Law was enacted recently, on 24 May 2018.
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