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I. Introduction

Argentina is a civil law country with a Romanist continental legal system.  The judge renders a  decision to declare and interpret the correct applicable law, without regard to the legal basis provided by the parties to the case, under the doctrine of jura novit curia.[1]  In this process, the judge is necessarily obliged to support his decisions and provide the basis for the conclusion he has arrived at.[2]  Such basis needs to be found either in the law, court decisions, or other additional secondary sources of law, such as customs, scholarly opinions, and general principles of law.  As such, the sentence should be substantiated and supported, and result from a logical derivation from the applicable law and not a dogmatic affirmation based on the judge’s will.[3]

It is not uncommon to observe citations of foreign court decisions by Argentine courts as an additional argument of the judge’s own decision.  It is a way of strengthening the conviction in the selected interpretation offered by the domestic law.[4]  This encompasses a comparative analysis between the Argentine law and the foreign one to demonstrate that such a reception by the court is possible.  This process should not be considered only as a simple migration of foreign law.[5]

The use of foreign law by Argentina’s courts has been quite frequent, especially in constitutional issues, because Argentina’s National Constitution dating from 1853 was inspired and modeled after the U.S. Constitution.  Until the 1930s, the Supreme Court of Argentina applied U.S. precedent as one of the means of constitutional interpretation, especially in cases involving freedom of the press, freedom to engage in commercial activity, and property rights.[6]  According to Professor Jonathan Miller, “the nineteenth century experience of Argentina with the U.S. Constitution shows that not only may rules from transplanted constitutional models take root, but that such rules may enjoy extra authority because of the prestige of the foreign model.”[7]

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II.  Reception of Foreign Law in Domestic Court Decisions

Current trends show that high court decisions around the world are transposing national boundaries due to the following factors:[8]

1)   Countries are increasingly more interconnected and interdependent.  This is no longer limited to neighboring nations;[9]

2)   In the current stage of human development most problems are not exclusive of one community or country, but common to the rest of the world as well;[10]

3)   Scientific, philosophical, political and socioeconomic changes are not incorporated immediately in legislation.  The correlation between social circumstances and legal norms is not always present.  It is frequent to see the delay of the legislation with regard to social changes, either because of a legislator’s reticence or due to interest groups that hinder any change or because the process of legislative reform is slow and complicated.[11]  The lack of availability of an explicit legal solution is irrelevant for the judge who is required to solve the conflict and who cannot stop from deciding it.[12]  In this extreme situation, the Civil Code[13] provides that the judge should use the general principles of law as a guide.

A foreign court decision could be effectively used as a valid legal argument, if, after the comparative analysis process, it may be concluded that:

1)   The foreign law to be used has a close similarity to the national law, from the statutory point of view;[14]

2)   The facts in the foreign court decision coincide with the facts of the case before the national judge;[15] and

3)   The concept of justice in the foreign jurisdiction is similar or equivalent to the one in its own court.[16]

Once these three conditions are met, foreign law may become a valid argument supporting the national court’s conclusion.[17]

For example, a foreign precedent may not be cited if the facts involving the case are not identical.  In a 1992 decision of the National Civil and Commercial Federal Court of Appeals ,[18] the Court concluded that a U.S. precedent on freedom of expression could not be used in a domestic case involving the expression of ideas, because the U.S. precedent was related to official and scientific secrets, the release of which may be forbidden under American law.[19]

A common legal tradition is a strong argument that Argentine courts have used to cite foreign court decisions.  In constitutional law matters, U.S. precedents have had a strong influence.  With regard to civil and commercial law, Argentine codes have been inspired by the European continental legal system; therefore, French, Italian, and German court decisions have been cited in these cases.[20]

There are numerous decisions[21] from the Supreme Court of Argentina citing foreign law as an argument.  For example, in a 1994 case[22], the Supreme Court decided that the principle of sovereign immunity of another nation was not absolute, as was understood until that time, but limited to public acts by the state and not to private activity, holding that no nation may be sued in Argentine courts if the conflict is related to activities of the foreign nation in the country undertaken in its role as sovereign (juri imperii), but may be sued if the actions were of a private character (jure gestionis).

The case involved a claim for unpaid social security and labor-related obligations to the employees of the Russian Embassy in Buenos Aires.  The Supreme Court concluded that no constitutional, statutory, or conventional norm explicitly provided for an absolute immunity and, therefore, there was no legal impediment for the highest court to limit sovereign immunity to juri imperii and not to jure gestionis.  To reinforce the court’s departure from the prior jurisprudence in the case, the court cited a U.S. Supreme Court decision of June 12, 1992,[23] and a German Constitutional Court decision of April 30, 1963, in a case against the Kingdom of Iran, which as of that date were already accepting the restricted sovereign immunity thesis.[24]

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III. Supreme Court Comparative Law Research Division

In 1992, the Comparative Law Research Division (Secretaría de Investigación de Derecho Comparado) was created within the Supreme Court Library to provide research services on foreign and comparative court decisions, scholarly works, and legislation to the Supreme Court.[25]  The creation of this division attests to the need and relevance that information on foreign law has for the Court.  The mission of the newly-created division aims at providing not only reference, but also research in foreign and comparative law.  To this end, the court renamed it the Instituto de Investigaciones y de Referencia Extranjera (Foreign Research and Reference Institute) in 2009.  The Institute will provide translations, reference services, and publications of relevant foreign court decisions; acquire and catalog foreign legal periodicals; issue a semiannual publication; and make these materials available in a digital or online format as much as possible.[26]

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IV.  Conclusion

Argentina’s domestic courts have a longstanding tradition of citing foreign law to reinforce the ruling position.  This is basically due to the legal traditions adopted from the American Constitution, and the civil and commercial laws adopted from the Europeans.  Judges from both the higher and lower courts recognize the advantages of foreign precedents, so much so that the Supreme Court created an office especially dedicated to collecting and researching foreign and comparative law to satisfy the needs of the courts.  In the past this practice was based on common legal traditions.  Today it is a normal response to an increasingly globalized world, in which very few problems are exclusive to one country, but most likely have already arisen and been solved in other parts of the world.

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Prepared by Graciela Rodriguez-Ferrand
Senior Foreign Law Specialist
March 2010
 

[1] Id. at 41.

[2] Id. at 75.

[3] Id. at 76.

[4] Id. at 77.

[5] Id. at 77.

[6] Jonathan M. Miller, Judicial Review and Constitutional Stability: A Sociology of the U.S. Model and its Collapse in Argentina, 21 Hastings Int’l & Comp. L. Rev. 77, 79 (1997).

[7] Jonathan M. Miller, The Authority of a Foreign Talisman: A Study of U.S. Constitutional Practice as Authority in Nineteenth Century Argentina and the Argentine Elite’s Leap of Faith, 46 Am. U. L. Rev. 1483 (1997), available at http://www.wcl.american.edu/journal/lawrev/46/mille.cfm.

[8] Casal, supra note 1, at 77.

[9] Id. at 78.

[10] Id.

[11] Casal, supra note 1, at 78-79.

[12] Id. at 79.

[13] Código Civil arts. 15, 16 (Abeledo Perrot, Buenos Aires, 2009).

[14] Casal, supra note 1, at 84.

[15] Id.

[16] Id.

[17] Id.

[18] CNCiv. Y Com. Federal, Sala II, 3/7/92, El Derecho, ED 28/9/92, Fallos N 44550.

[19] Casal, supra note 1, at 96.

[20] Id. 90.

[21] Citation of foreign law may be found in the following cases: Corte Suprema de Justicia de la Nación [CSJN], Dec. 7, 1934, Avico, Oscar Agustín v. de la Pesa, Saúl G,” Fallos 172:21, Jurisprudencia Argentina [JA] 48‑698; CSJN, July 13, 2004, “Cabrera, Gerónimo Rafael y otro c/ P.E.N. Ley 25.561 - dtos. 1570/01 y 214/02 s/ amparo sobre ley 25.561,” Fallos 124. XL, both available at http://www.csjn.gov.ar/cfal/fallos/cfal3/toc_fallos.jsp.

[22] CSJN, “Manauta, Juan J. y otros c/ Embajada de la Federación Rusa,” Fallos 93485 of Dec. 22, 1994, La Ley (LL), Sept. 1, 1995.

[23] Republic of Argentina v. Weltover, Inc., 504 U.S. 607 (1992), available at http://www.law.cornell.edu/ supct/html/91-763.ZO.html.

[24] Casal, supra note 1, at 106.

[25] Acordada 51/2009 of Dec. 29, 2009, Reglamento del Instituto de Investigaciones y de Referencia Extranjera, available at  http://www.csjn.gov.ar/docus/documentos/cons_tipo.jsp?tipo=AC.

[26] Id. art. 3.

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Last Updated: 02/28/2014