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A. THE CONSTITUTION
1.101 Based on its Constitution
Argentina is organized as a Federal Republic divided in
Provinces, Municipalities and the Autonomous City of Buenos Aires.
1.102 Its original text was sanctioned
in 1853 and one of its principal sources was the Constitution of the United States
of America. This text was amended in
1860, 1866, 1898, 1949, 1957 (this abrogated the 1949 constitutional
amendment) and 1994.
1. Bill of Rights
1.103 In Chapter I of Part I,
the Constitution establishes a Bill of Rights and Guarantees for all
individuals, argentine or foreign; the inviolability of the right of
life, liberty, equality, security and property. The second Chapter
included by the amendment of 1994, deals with public ethics,
political rights, environmental protection and consumers rights.
1.104 Civil rights are
recognized to all inhabitants of the argentine territory in article
14 and in the case of foreigners this is confirmed by article 20. The
wide protection that the Constitution assures to foreigners’ civil
rights is a consequence of the traditional interest of Argentina, as
a country of immigration, in the affluence of foreigners and foreign
investments.
1.105 Workers social rights,
including: limited labor day, just salary, right of organization,
social security benefits, etc., were introduced by the 1957
amendment.
1.106 Inviolability of property
is guaranteed by the Constitution by declaring that no one can be
deprived of property, except in case of judicial sentence based on
previously enacted legislation, or through expropriation for reasons
of public utility, dully qualified by law and previously indemnified.
1.107 Article 18 establishes the
principle that the person, its judicial defense, its domicile and
correspondence are inviolable. The Constitution expressly declares
that "No inhabitant of the Nation can be; condemned without a
court ruling based on a law sanctioned prior to the fact object of
the claim; nor judged by special commissions; nor judged by other
judges than those invested with jurisdiction by the law prior to the
fact object of the claim."
1.108 Individual freedom is
guaranteed by article 19 and private human actions which do not
offend public order or morality, or causes damage to third parties,
are only reserved to God and exempt of the authority of the
magistrates. No inhabitant of the Nation can be obliged to do what is
not established in the law, or obliged not to do what the law does
not forbid.
1.109 In order to provide an
effective protection to individual rights, the 1994 amendment has
introduced actions called: "amparo" (injunctions),
"hábeas corpus" and "hábeas data".
"Amparo" gives the possibility to any person to request
that a judge declare the unconstitutionality of an act or ruling on
which an action or omission of public authorities or private
individuals is based that, in an actual or imminent manner, causes
damage or restrains a right recognized by the Constitution, the law
or an international treaty. This action requires that no other
effective judicial mean be available. "Hábeas corpus" is an
action that can be filled to protect the right of physical freedom
when it is threatened, limited, modified or injured, or in case of
illegitimate aggravation of conditions of detention. "Hábeas
data" is an action that can be filled by any individual to take
notice of any information referred to him, registered in public or
private registers, and to request its suppression, rectification,
confidentiality or updating.
1.110 Another innovation
introduced by the 1994 amendment is that citizens can introduce bills
before the House of Deputies that must be considered by Congress
within the next twelve months. We must also mention the recognition
of the right of every inhabitant to a healthy environment in article
41 that establishes that "all inhabitants are entitled to the
right to a healthy and balanced environment fit for human development
in order that productive activities shall meet present needs without
endangering those of future generations; and shall have the duty to
preserve it. As a first priority, environmental damage shall bring
about the obligation to repair it according to law. The authorities
shall provide for the protection of this right, the rational use of
natural resources, the preservation of the natural and cultural
heritage and of the biological diversity, and shall also provide for
environmental information and education. The Federal Government shall
regulate the minimum protection standard, and the provinces those
necessary to reinforce them, without altering their local
jurisdictions. The entry into the national territory of present or
potential dangerous wastes, and of radioactive ones, is
forbidden". From another point of view there are precise provisions
referring to: protection of consumers rights, defense of
competitions, control of natural or legal monopolies and of public
services quality and efficiency.
2. Form of Government
1.111 The Argentine Nation
adopted the federal republican representative form of government.
Each province has enacted their own constitutions under the
republican representative system in accordance with the principles,
declarations and guarantees of the Federal Constitution.
2.1. The Federal Government
1.112 The Federal Government has
the following divisions:
2.1.1. The Legislative Power
2.1.1. a) Congress
1.113 The Legislative power of
the Nation shall be vested in a Congress composed of two Houses, one
of Deputies of the Nation and the other of Senators for the provinces
and for the City of Buenos Aires.
1.114 Congress has the power to
sanction the Civil, Commercial, Criminal, Mining, Labor and Social
Security Codes; to regulate national and international commerce; to
approve or reject international treaties giving them constitutional
status, and to promote human, cultural and material progress.
1.115 It also has wide powers
regarding monetary and financial policy as: organization of a Federal
Bank authorized to coin money, fixing of the value of national and
foreign currency, arranging of payment of the external and internal
debt of the Nation, annual approval of the federal administration’s
general budget of, and payment of subsidies to the Provinces with
funds of the Federal Treasury.
1.116 With respect to tax
policy, Congress has different powers depending on the direct or
indirect nature of taxation. Direct taxes can only be levied by the
Provinces as a general principle, though Congress can levy them in
exceptional circumstances and for a limited period. With regards to
indirect taxation, Congress, the Provinces and the City of Buenos
Aires exercise concurrent power. The distribution of these taxes
between the Nation, the Provinces and the city of Buenos Aires must
be enacted by Congress and approved by the Provinces and the City of
Buenos Aires.
2.1.1. b) General Auditing Office of the
Nation
1.117 The General Auditing
Office of the Nation is a technical advisory body of Congress with
functional autonomy in charge of the control of the legal aspects,
management and auditing of all the activities of the centralized and
decentralized Civil Service.
2.1.1. c) The Ombudsman
1.118 The Ombudsman is an
independent body created within the sphere of the Federal Congress
operating with full autonomy without receiving instructions from any
authority. The mission of the Ombudsman is the defense and protection
of human rights and other rights, guarantees and interests sheltered
under this Constitution and the laws, in the face of deeds, acts or
omissions of the Administration; as well as the control of public
administrative functions.
2.1.2. The Executive Power
1.119 The Executive Power of
the Nation shall be vested in a citizen with the title of
"President of the Argentine Nation". In case of illness,
absence from the Capital City, death, resignation, or removal of the
President from office, the Vice-president shall replace him.
1.120 The executive power is
formed by the President, the Vice-president, the Chief of Ministers,
and the Ministers. The President promulgates or vetoes the laws
sanctioned by Congress; regulates the application of laws sanctioning
regulatory decrees; issues regulations concerning the activity of the
Public Administration; has the direction of international relations
and is the commander in chief of the army.
1.121 The President can issue
decrees of necessity and urgency when exceptional circumstances
impede the compliance of legislative proceeding, and the object of
such decrees does not concern criminal, tax, electoral or political
parties organization matters. These decrees must be submitted to the
consideration of Congress within ten days of the issuance.
1.122 The Chief of the
Ministerial Cabinet and the other secretary ministers, whose number
and powers shall be determined by a special law, shall be in charge
of the business of the Nation and shall countersign and legalize the
acts of the President.
2.1.3. The Judicial Power
1.123 The judicial power is
vested in a Supreme Court of Justice and in such inferior courts as
Congress may establish in the territory of the Nation.
1.124 The justices of the
Supreme Court and the judges of the lower courts of the Nation shall
hold their offices during good behavior, and shall receive for their
services a remuneration to be ascertained by law and which shall not
be diminished in any way while holding office.
1.125 The 1994 amendment created
the Council of Magistracy, ruled by a special law enacted by the
absolute majority of all the members of each House that shall be in
charge of the selection of the judges and of the administration of
the Judicial Power.
2.1.4. The Public Ministry
1.126 The Public Ministry is an
independent body with functional autonomy and financial autarchy,
with the function of promoting justice for the defense of legality,
of the general interests of society, in coordination with the other
authorities of the Republic.
1.127 It is composed of an
Attorney General of the Nation and a General Defender of the Nation,
and such other members as the law may establish.
1.128 Its members enjoy
functional immunities and intangibility of remunerations.
3. Delegation of Powers to the Federal Government - Codes
1.129 Delegation of powers by
the Provinces to the Federal Government is a consequence of the federal
principle under which Argentina is organized. Among matters
delegated, we must point out the enactment of the Civil, Commercial,
Criminal, Mining, Labor and Social Security Codes.
4. Precedence of Laws - International Treaties
1.130 The Constitution in
article 31 establishes that the Constitution, the laws of the Nation
enacted by Congress according to same, and treaties with foreign
powers, are the supreme law of the Nation; and the authorities of
each province are bound thereby, notwithstanding any provision to the
contrary included in the provincial laws or constitutions, except for
the province of Buenos Aires regarding the treaties ratified after
the Pact of November 11, 1859.
1.131 Article 75 section 22
grants constitutional rank to the following: the American Declaration
of Rights and Duties of Man; the Universal Declaration of Human
Rights; the American Convention on Human Rights; the International
Pact on Economic, Social and Cultural Rights; the International Pact
on Civil and Political Rights and its empowering Protocol; the
Convention on the Prevention and Punishment of Genocide; the
International Convention on the Elimination of all Forms of Racial
Discrimination; the Convention on the Elimination of all Forms of
discrimination against Woman; the Convention against Torture and
other Cruel, Inhuman or Degrading Treatments or Punishments and the
Convention on the Rights of the Child. Other treaties and conventions
on human rights to attain constitutional rank must be approved by
Congress with the vote of two thirds of all the members of each
house.
5. Provincial Constitutions
1.132 The provinces have
reserved all the powers not delegated to the Federal Government by
this Constitution, as well as those powers expressly reserved by special
pacts at the time of their incorporation.
1.133 Each province enacts its
own Constitution, ensuring municipal autonomy and establishing its
scope and content regarding the institutional, political,
administrative, economic and financial aspects.
MENU
B. THE CIVIL CODE SYSTEM
1.134 The Civil Code dates from
1869 and reflects the influence of Continental Law and the liberal
principles of the XVIII Century that were the basis of the French
Civil Code known as the "Code Napoleon" that was the model
to legislation in countries of America that had been part of France,
Spain or Portugal. It has suffered several amendments, the most
important of which was by the Law 17.711 in 1968.
1.135 It is divided into two
preliminary titles, four books and a complementary title. The first
of the preliminary titles contains the general theory of the law, and
the second refers to the way of counting legal periods of time. The
complementary title establishes transitory rules concerning the
effect of the Code on existing rights. The first book deals with
individual and family relations. The second book deals with
personal rights within civil relations; it is subdivided in three
sections concerning, respectively: obligations in general and their
extinction; legal facts and legal acts and contractual obligations.
The third book deals with real estate rights. The fourth
book contains common provisions related to books one and two, it
regulates transfer rights including succession; privileges; and
prescription as a way of acquisition or loss of rights.
MENU
C. SOURCES OF LAW
1. Law
1.136 Legislation is the
principal source of law. The Constitution grants Congress exclusive
power to legislate on civil, commercial, criminal, mining, labor,
social security, national and international commerce, and monetary
matters.
1.137 When a case is not
contemplated in the law or cannot be resolved by the words or the
spirit of same one must consider it, based on the principles
established in other analogous laws, if the case still is doubtful
the general principles of law should apply considering the
circumstances of each case.
2. Case Law
1.138 In Argentina, case law
becomes an important source of interpretation of law, especially,
when judicial decisions are uniform. Nevertheless, judges are not
obliged to follow previous decisions, unless the previous decision
was rendered by plenary agreement of all the members of the Federal
Court of Appeal with appellate jurisdiction on the originating court.
3. Custom
1.139 Custom is only a source of
law when referred to by legislation, this happens most frequently in
commercial contractual disputes.
4. General Principles of Law
1.140 When a case cannot be
resolved by applying written legislation, general principles of law
should be considered. Although the concept of general principles of
law is subject to a wide differences of opinion among legal scholars,
it is a generally agreed that its application should result in a just
and equitable decision taking into consideration the circumstances of
the case.
5. Analogy
1.141 The application of
analogous legal solution to a certain case requires that no explicit
provision of law covers the case and it is based on the application
of the principles of equal treatment before the law and uniformity of
legal reasoning.
6. Equity
1.142 The Civil Code amendment
of law 17.711 introduced equity as a rule for judges to interpret
certain circumstances in which the strict application of the
legislation could result in an unjust decision.
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D. DIFFERENT JURISDICTIONS
1.143 The Constitution
establishes two types of jurisdiction in the national territory: the federal
jurisdiction, vested in the Supreme Court of Justice and the inferior
federal courts, and the provincial jurisdiction, vested in the local
supreme courts or provincial courts.
1.144 Federal jurisdiction
proceeds when the claim concerns:
a) Causes ruled by the Constitution by
International Treaties, by federal laws with the exception of matters
delegated to Congress by the provinces, e.g. Civil, Commercial,
Penal, Mining, Labor and Social Security legislation that are
considered federal or provincial depending if the persons or goods
fall within each jurisdiction.
b) Causes in which the Nation is party;
c) Causes between residents of different
Provinces, or between residents of a Province and a different
Province, between residents of different Provinces or between a
Province or its residents and a foreign State or City.
d) Cases
regarding attention of citizenship or nationality as those regarding
bankruptcy and falsification of currency or public documents.
e) Causes
concerning foreign diplomats, ministers or consuls.
f) Causes
concerning admiralty and maritime jurisdiction.
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E. FOREIGN
INVESTMENTS
1.145 Article 20 of the Constitution grants foreigners
within the territory of the Nation all the civil rights granted to
citizen, they can practice their industry, commerce or profession and
own real state and buy or sell same.
1.146 Law 21,382 modified by laws 23,697 and 23,760
grant equal rights and obligations than those granted by the
Constitutions and laws to local investors. Registration is optional
and the investor has full right to transfer profits and to repatriate
his investment.
1.147 Foreign Investments have specific regulation when
ruled by a treaty for reciprocal promotion and protection of investments.
Law 24.124 has approved the treaty for protection of investments
signed between Argentina and the United States of America, which was
amended and the amendment adopted by Law 24.356.
1.148 Argentina has also approved Treaties of Reciprocal
Promotion and Protection of Investments with: Switzerland, Hungary,
Armenia, Denmark, Rumania, Venezuela, Bolivia, Malaysia, Finland,
Korea, Italy, Spain, Poland, France, Sweden, Belgic-Luxembourguese
Economic Union, Canada, Egypt, Bulgaria, Senegal, Tunisia,
Netherlands, Austria, China, Turkey, Chile, Jamaica, Croatia,
Ecuador, Non Party States of the Mercosur, Portugal, Peru, Cuba,
Israel.
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