1. > Post-Independence > Constitutions (US) / Codes (French) > Civil Procedure Last updated 5 Oct 11 Latin American Law

2. Brazilian national anthem The placid banks of Ipiranga heard the resounding cry of a heroic people and in shining rays, the sun of liberty shone in our homeland's skies at this very moment. If the assurance of this equality we achieved by our mighty arms, in thy bosom, O freedom, our chest shall defy death itself! O beloved, idolized homeland, Hail, hail!Ipiranga Brazil, an intense dream, a vivid ray of love and hope descends to earth if in thy lovely, smiling and clear skies the 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 Land amongst a thousand others art thou, Brazil, O beloved homeland! To the sons of this land thou art a gentle mother, beloved homeland,Brazil!(Southern) Cross

3. Constitutional origins …

4. 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

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

6. “There, one opinion of Marshall is worth as much as a law.” -- Ignacio Vallarta

7. Constitutional comparisons …

8. Constitutional comparisons Chile 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

9. Constitutional comparisons Venezuela 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.

10. 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

11. Constitutional comparisons Argentina 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.

12. Origins of LatAm civil codes …

13. 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)

14. 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

15. Origins of LatAm commercial codes …

16. 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)

17. . Commercial Acts in Latin American CodesComparable Articles of the UCC Purchase of goods for resale2. Sales Banking and securities transactions4. Bank Deposits 8. Investment Securities 9. Secured Transactions Brokerage and agency Negotiable Instruments3. Negotiable Instruments Commercial bailments7. Warehouse Receipts, Bills of Lading and Other Documents of TitleWarehouseBills of LadingTitle 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

18. 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).

19. Civil procedure …

20. 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 CPC Trevor Ostbye

21. "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."

23. Enforcing a $10,000 Judgment by Attaching a Bank Account ArgentinaMexicoPeruFrance Official cost23% of the original debt 22% of the original debt 7% of the original debt Unofficial costNo survey data3 to 7% of the original debt 5 to 10% of the original debt No survey data Time under the law2 to 3 months3 to 5 months 1 month Time in practice6 to 8 months 6 to 9 monthsNo survey data Number of steps [petition- payment] 6 steps7 steps6 steps5 steps Agencies involvedJudge; justice officer Judge; Natl Banking Com.; justice officer Judge; justice officerHuissier Enforcing a $10,000 Judgment by Attaching a Bank Account ArgentinaMexicoPeruFrance Official cost33% of the original debt 32% of the original debt Up to 40% of the original debt 10% of the original debt + lawyer fees Unofficial costNo survey data3 to 7% of the original debt 5 to 10% of the original debt No survey data Time under the law9 months9 months to 1 year8 monthsNo survey data Time in practice1.5 to 2 years 1 to 1.5 yearsNo survey data Number of steps [petition/payment] 11 steps 10 steps Agencies involvedJudge; justice officer; auctioneer Judge; justice officer Judge; justice officer; auctioneer Huissier; judge; auctioneer Enforcing a $10,000 Judgment by Attaching and selling real estate

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