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Last updated 5 Oct 11

Latin American Law

Brazilian national anthem

The placid banks of Ipiranga heardthe resounding cry of a heroic peopleand in shining rays, the sun of libertyshone in our homeland's skies at this very moment.

If the assurance of this equalitywe achieved by our mighty arms,in thy bosom, O freedom,our chest shall defy death itself!

O beloved,idolized homeland,Hail, hail!

Brazil, an intense dream, a vivid rayof love and hope descends to earthif in thy lovely, smiling and clear skiesthe image of the (Southern) Cross shines resplendently.

Giant by thine own nature,thou art beautiful, thou art strong, an intrepid colossus,and thy future mirrors thy greatness.

Beloved Landamongst a thousand othersart thou, Brazil,O beloved homeland!

To the sons of this landthou art a gentle mother,beloved homeland,Brazil!

Constitutional origins …

Spanish Constitution(1812)

US Constitution(1791)

Argentina(1853)

Brazil(1891)

• Separation of powers

• Federalism• Individual liberties• Judicial review

French Declaration Rights of Man (1789)

(Rich McPherson)

• Equality• Standing

committee• Special courts• State of siege

Mexico(1917)

Mexico(1824)

Brazil(1824)

Keith Orgel: Mexico and Brazil

“By my blood, by my honor, and by God: I will make Brazil free.”

Dom Pedro

“There, one opinion of Marshall is worth as much as a law.”

-- Ignacio Vallarta

Constitutional comparisons …

Constitutional comparisonsChile

Similar ▪ Men are born free and equal, in dignity and rights.▪ Equal protection under the law in the exercise of their rights.▪ Freedom to express opinions and to disseminate information without

prior censorship

Different ▪ The family is the basic core of society.▪ The law protects the life of those about to be born.▪ The right to protection of health.▪ The right to education.▪ Freedom to work and protection of that freedom.  

Universal Declaration of Human Rights

International Covenant on Economic, Social and Cultural Rights

Constitutional comparisonsVenezuela Similar ▪ The Constitution is the supreme law and foundation of the legal order▪ Al persons are equal before the law▪ No person shall be arrested or detained except by virtue of a court order▪ All judicial and administrative actions shall be subject to due process▪ Any person shall be presumed innocent until proven otherwise.

Different ▪ Spanish is the official language▪ Penalties consisting of deprivation of liberty shall not exceed 30 years.▪ The State shall protect families as a natural association in society, and as the

fundamental space for the overall development of persons▪ The State shall guarantee senior citizens the full exercise of their rights and

guarantees▪ Financing of the public health system is the responsibility of the State, which

shall integrate the revenue resources, mandatory Social Security contributions and any other sources of financing provided for by law.

Constitutional comparisons

Brazil Similar ▪ All persons are equal before the law▪ freedom of conscience and of belief is inviolable

Different ▪ It is incumbent upon the Government, as provided by law. to

organize social welfare▪ Health is a right of all and a duty of the State and shall be guaranteed

by means of social and economic policies ▪ Education is the right of all and duty of the State and of the

family▪ Payrate for night-shift work higher than that for daytime work 

Universal Declaration of Human Rights

International Covenant on Economic, Social and Cultural Rights

Constitutional comparisonsArgentina Similar ▪ Nobody may be compelled to testify against himself, nor be arrested

except by virtue of a written warrant issued by a competent authority▪ The defense by trial of persons and rights may not be violated.

Different ▪ The Federal Government supports the Roman Catholic Apostolic

religion▪ The prisons of the Nation shall be healthy and clean, for the security

and not for the punishment of the prisoners confined therein;▪ As regards consumption, consumers and users of goods and services

have the right to the protection of their health, safety, and economic interests; to adequate and truthful information; to freedom of choice and equitable and reliable treatment.

 

Origins of LatAm civil codes …

Argentina Civil Code (1869)Dalmacio Velez Sarsfield (1801-1875)

French “code civil”(1804)

Chile Civil Code (1852)Andres Bello (1781-1865)

Brazil draft civil code (1856)Augusto Teixeira de Freitas (1816-1883)

French “code civil”(1804)

Spanish Civil Code(1889)

Argentina Civil Code• 30% Brazil draft• 17% Austria profs• 7% Spanish comment• 4% Chile CC• 4% French CC• 3% French comment• 2% German comment• 1% Louisiana CC• 1% Belgian comment• 1% Uruguay draft• 30% miscellaneous

Haiti(1825)

Chile(1852)

Brazil draftt(1856)

Argentina(1869)

Bolivia(1831)

• rationalist, utopian, and highly individualistic

• values of the Enlightenment and French Revolution

Keith Orgel / Trevor Ostbye

Origins of LatAm commercial codes …

French commercial code(1807)

Ordinances of Bilbao(1737)

Civil Code (non-merchant)

vs.

Commercial Code (merchant / profit)

Haiti(1825)

Chile(1867)

Brazil (1850)

Argentina(1859)

Colombia

Spanish commercial code(1829)

Portuguese commercial code(1833)

.   Commercial Acts in Latin American Codes Comparable Articles of the UCC

Purchase of goods for resale 2. Sales

Banking and securities transactions 4. Bank Deposits8. Investment Securities9. Secured Transactions

Brokerage and agency  

Negotiable Instruments 3. Negotiable Instruments

Commercial bailments 7. Warehouse Receipts, Bills of Lading and Other Documents of Title

Warehousing. Transport, business associations, and insurance

?

 

It seems as if many Latin American countries, such as Nicaragua, will not modify their commercial code unless trading partners dangle the carrot of free trade

The Index of Economic Freedom (Heritage Foundation and WSJ) measures economic freedom in 10 economic areas. Lowest levels of economic freedom in LatAm:

• property rights (ability to purchase and hold property / property laws actually enforced by the government),

• financial freedom (banking security and independence from total governmental control / no political favoritism),

• freedom from corruption (both in the marketplace and the government).

Civil procedure …

Pleading stage

Role of judge

Discovery (info gathering)

Trial (evidence)

Judgment(costs, loser pays)

Appellate review(scope)

Enforcement(govt officials)

Pre-trial(filters)

Compare to Brazil CPCTrevor Ostbye

"I think 24 years is a long time to start a trial…[t]hese murderers are laughing at all of us, at you judges, at the prosecutors, the

lawyers…[t]hey are dying without telling us the truth."

  Argentina Mexico Peru France

Official cost 23% of the original debt

23% of the original debt 22% of the original debt

7% of the original debt

Unofficial cost No survey data 3 to 7% of the original debt

5 to 10% of the original debt

No survey data

Time under the law 2 to 3 months 3 to 5 months 3 to 5 months 1 month

Time in practice 6 to 8 months 6 to 8 months 6 to 9 months No survey data

Number of steps [petition-payment]

6 steps 7 steps 6 steps 5 steps

Agencies involved Judge; justice officer

Judge; Natl Banking Com.; justice officer

Judge; justice officer Huissier

Enforcing a $10,000 Judgment by Attaching a Bank Account

  Argentina Mexico Peru France

Official cost 33% of the original debt

32% of the original debt

Up to 40% of the original debt

10% of the original debt + lawyer fees

Unofficial cost No survey data 3 to 7% of the original debt

5 to 10% of the original debt

No survey data

Time under the law 9 months 9 months to 1 year 8 months No survey data

Time in practice 1.5 to 2 years 1.5 to 2 years 1 to 1.5 years No survey data

Number of steps [petition/payment]

11 steps 11 steps 11 steps 10 steps

Agencies involved Judge; justice officer; auctioneer

Judge; justice officer

Judge; justice officer; auctioneer

Huissier; judge; auctioneer

Enforcing a $10,000 Judgment by Attaching and selling real estate

End