Dispute Resolution Around the World. Venezuela

Transcription

1 Dispute Reslutin Arund the Wrld Venezuela

2

3 Dispute Reslutin Arund the Wrld Venezuela 2009

4

5 Dispute Reslutin Arund the Wrld Venezuela Table f Cntents 1. Natinal Cnstitutin Internatinal Treaties: Their Cnstitutinal Hierarchy Cmmercial Dispute Reslutin Prcedures and Cmpetent Curts Enfrcement f Freign Judgments Curt Csts Arbitratin Enfrcement f Freign Arbitral Awards Prduct Civil Liability White Cllar Crime... 6 Key Cntact... 9 Baker McKenzie i

6

7 Dispute Reslutin Arund the Wrld Venezuela Prgrammatic principles and cnstitutinal guarantees related t the reslutin f cmmercial disputes. 1. Natinal Cnstitutin Establishes that the pwer t administer justice emanates frm the citizens and is exercised thrugh the System f Justice frmed, amng thers, by the Supreme Curt, ther curts prvided by law, the alternative means f justice (arbitratin and mediatin), auxiliaries participating in the administratin f justice and lawyers authrized t practice law in the cuntry. Establishes that justice must be free, accessible, impartial, suitable, transparent, autnmus, independent, respnsible, equitable and expeditius, and withut undue delay and bureaucracy. Establishes the right t due prcess and the right t defense as invilable principles in all states and degrees f the prcess. Establishes the right f all peple t be prtected by the curts in the enjyment and exercise f the cnstitutinal rights. In the event these rights are vilated, it establishes the cnstitutinal relief prcedure, which is ral, public, brief, free and withut undue bureaucracy. In these cases, the cmpetent authrity is empwered t reestablish the vilated juridical situatin. Thus, if in the curse f a lawsuit, a cnstitutinal right is vilated, the injured party may resrt t anther judge s he may rder the judge hearing the case t reestablish the vilated cnstitutinal right. Baker McKenzie 1

8 2. Internatinal Treaties: Their Cnstitutinal Hierarchy Public treaties have pririty ver the laws f the Republic. The main treaties are: The Cde f Private Internatinal Law (Bustamante Cde) (Cuba). Prtcl n Unifrmity f Pwers f Attrney which are t be Utilized Abrad (Washingtn Prtcl). Inter-American Cnventin n the Legal Regime f Pwers f Attrney t be Used Abrad (Panama). Inter-American Cnventin n Extraterritrial Validity f Freign Judgments and Arbitral Awards. (Uruguay Cnventin). United Natins Cnventin n the Recgnitin and Enfrcement f Freign Arbitral Awards (New Yrk Cnventin). Cnventin n the Settlement f Investment Disputes between States and Natinals f ther Member States (Washingtn Cnventin). Inter-American Cnventin n Internatinal Cmmercial Arbitratin (Panama Cnventin). Inter-American Cnventin n Letters Rgatry (Panama). Inter-American Cnventin n the Taking f Evidence Abrad (Panama). Inter-American Cnventin n Prf and Infrmatin n Freign Law (Uruguay). 2 Baker McKenzie

9 Dispute Reslutin Arund the Wrld Venezuela Inter-American Cnventin n Cnflicts f Law Cncerning Cmmercial Cmpanies (Uruguay). 3. Cmmercial Dispute Reslutin Prcedures and Cmpetent Curts The prcedure is gverned by the Cde f Civil Prcedure and special rules f the Cmmercial Cde. This is a written prcedure in which the judge must rely nly n what was alleged and prved in the curt prceedings. The Supreme Curt f Justice is the highest Curt f the Republic. It is divided int six Chambers: Civil, Criminal, Scial, Plitical- Administrative, Cnstitutinal and Electral. Belw the Supreme Curt are the Superir Curts f cmmercial jurisdictin that are appellate curts. Belw the Superir Curts are Cmmercial Curts that are trial curts that hear the case. It is nt cmpulsry fr judicial precedents (case law) t be used by ther judges wh hear ther actins. Therefre, the decisins f a judge in a particular lawsuit nly affects parties f that lawsuit and are nt applicable in reslving ther similar cases. The case law f the Cnstitutinal Chamber f the Supreme Curt can be binding. Thus, it has established in its decisins new binding prcedural criteria, which cmplement, clarify r braden sme f the rules and prcedures gverned by the Cde f Civil Prcedure and the Cde f Cmmerce. Civil and cmmercial lawsuits are tried in tw stages. In lawsuits with a value exceeding 3,000 Tax Units (as f January 22, 2008 the Tax Unit is equivalent t Bs.F ), it is pssible t appeal Supreme Curt when the decisin f the Baker McKenzie 3

10 Superir Curt vilates fr misinterpretatin r lack f applicatin f a legal rule r when requirements f the judgment r manners f the prcedure had been vilated. In these cases, the Supreme Curt may vid the decisin f the said judge and rder that anther ne render a new judgment. The Supreme Curt, in principle, des nt hear the merits f the actin (althugh there are exceptins). The tax unit taken as reference t establish the amunt t resrt t the Supreme Curt is established annually by the Tax Administratin taking int cnsideratin the inflatin f the immediately preceding year. 4. Enfrcement f Freign Judgments Judgments f freign curts can nly be enfrced in Venezuela after btaining the crrespnding exequatur frm the Supreme Curt. The latter may deny the exequatur in the event the judgment had deprived Venezuelan curts f jurisdictin r when any f the reasns t deny it prvided fr in the Cde f Civil Prcedure are present. Fr instance, if such judgment is cntrary t Venezuelan public plicy r if prcess had nt been served n the defendant r if his defendant s right t defense is nt guaranteed. 5. Curt Csts Pursuant t the Cnstitutin, the administratin f justice is free, and therefre, there are n curt csts. As t lawyers fees, the lsing party is cmpelled t reimburse fees and expenses nt mre than 30% f the ttal amunt invlved in the litigatin. 4 Baker McKenzie

11 Dispute Reslutin Arund the Wrld Venezuela 6. Arbitratin Arbitratin is valid in Venezuela. Arbitratin and mediatin are sme f the alternative means in reslving cnflicts, which are part f the Venezuelan Cnstitutin and justice system. Cmmercial arbitratin, which may be institutinal r independent, is gverned by the Cmmercial Arbitratin Law. Institutinal arbitratin is carried ut befre r thrugh an arbitratin center with its wn regulatins. Independent arbitratin is a situatin in which there are n interventins by an arbitratin center. Amng the mre experienced and prestigius arbitratin centers f Venezuela are the Arbitratin Center f the Caracas Chamber f Cmmerce and the Arbitratin Center f the Venezuelan- American Chamber f Cmmerce. Arbitratin may be at law r in equity. The place f arbitratin may be chsen by the parties. If the arbitratin at law is carried ut, the arbitratrs must be Venezuelan lawyers. 7. Enfrcement f Freign Arbitral Awards Freign arbitral awards are enfrceable withut need fr an exequatur. Enfrcement might nly be denied fr reasns prvided fr in Article 49 f the Cmmercial Arbitratin Law. Fr instance, if they are cntrary t Venezuelan public plicy, if the parties have nt been ntified f the appintment f the arbitratrs, r if the parties right t defense are nt guaranteed. Baker McKenzie 5

12 8. Prduct Civil Liability The liability fr damages caused by defective prducts is established in the Law fr the Prtectin f Cnsumers and Users. This is a jint liability f all thse wh participated in the prductin and marketing f the prduct. The persn trying t exnerate himself frm respnsibility has the burden f demnstrating an inadequate r negligent handling in anther link f the chain f distributin and marketing which affects gds r services, and the cnsumers r users. This liability is based n the thery f bjective liability r f risk and nt n the thery f guilt. It is als pssible t file a criminal actin when a persn suffers physical damages caused by a defect in the manufacture f a prduct. 9. White Cllar Crime Bth the substantive and adjective criminal rules are based n the dergated Cnstitutin f Thus, there is a need t adapt thse rules t the new Venezuelan cnstitutinal rules, pursuant t the principles, human rights, guaranties and new institutins established in the Cnstitutin. The Organic Cde f Criminal Prcedure, enacted n January 23, 1998, which tk effect n July 1, 1999 and which was amended n Octber 4, 2006 (Official Gazette N. 38,536), cntains the mst advanced principles frm all the adjective criminal systems f the wrld, and established in Venezuela the accusatry system, whse principles include: (i) prir trial; (ii) ral trial; (iii) public trial; (iv) trial withut undue delay; (v) natural and impartial judge; (vi) due prcess; (vii) participatin f citizens; (viii) presumptin f inncence; (ix) cnfirmatin f freedm during the prceedings; (x) respect fr human dignity; (xii) defense and equality amng the 6 Baker McKenzie

13 Dispute Reslutin Arund the Wrld Venezuela parties; (xiii) prtectin f the victims; and (xiv) the mnply f the criminal actin by the Public Ministry. The Criminal Substantive Law, n the cntrary, has evlved since In this regard, the Criminal Cde in effect, althugh partially amended several times, the last being April 13, 2005, is based n the Zanardelli Cde f This has caused the dismembering and prgressive dergatins f the crimes cntained in the current Criminal Cde. The trend f the last years is criminal decdificatin, and there has been an excessive adptin f special criminal laws and rules in administrative r civil laws and even the disseminatin f rules equivalent t minr criminal infractins (faults r infractins) in administrative municipal rules (rdinances). The Criminal Cde is nw maintained tgether with a decdified criminal legislatin in apprximately 70 different laws. The Venezuelan Criminal Cde in effect cntains the fundamental principle f criminal legality (nullun crimen, nulla pena, sine lege), pursuant t which n crime, fault, sanctin r security measure might be established, but by a frmal previus law in written frm, which is strictly interpreted and applied, made public and knwn by everybdy in an unequivcal manner. It als establishes the principle f territriality, by virtue f which all persns cmmitting a crime r fault in Venezuelan territry will be sanctined pursuant t Venezuelan law. Anther fundamental principle f substantive criminal rules is that f culpability, by virtue f which nbdy might be criminally sanctined, except if he had the intentin f perfrming the fact cnstituting a crime, r if the guilty persn had acted with negligence, imprudence, r failed t bserve the rules in the specific cases established by the Law. Baker McKenzie 7

14 Cncerning crimes cmmitted in a cmpany thrugh actins and/r missins f individuals wh wrk therein, pursuant t the principle f culpability, the individuals will be criminally liable fr the said actins r missins, prvided that the crime had been cmmitted with willful miscnduct r guilt. That is, when the crime had been intentinally cmmitted r when it is the result f an imprudent, negligent r unskillful behavir, r fr failure t cmply with the rules. Sme special laws in effect in Venezuela, such as the Criminal Envirnmental Law, the Organic Law fr Preventin, Wrk Cnditins and Wrk Envirnment, the Law Against Illegal Freign Exchange Transactins and the Law fr the Prtectin f Cnsumers and Users, inter alia, typify crimes and attribute criminal liability specifically t the emplyers, managers, administratrs, directrs, legal representatives, attrneys-infact r agents f cmpanies. Hwever, by virtue f the criminal persnal respnsibility that exists in Venezuela, nne f these persns may be criminally liable fr crimes that cannt be persnally attributed t them r that have been cmmitted by thers. There are, hwever, several interpretatins by the Public Ministry and the Criminal Curts cncerning which individual must is accuntable in case a crime is cmmitted by the sharehlders, directrs, representatives, managers and/r emplyees f trust acting in the name r n behalf f the cmpany. In this regard, there had been several decisins frm criminal judges that have fllwed the s-called Vertex Thery, pursuant t which, althugh the crime had been cmmitted by a persn frm the middle r lw levels f the rganizatin, the vertex f the rganizatin will be criminally liable because the decisin-making capacity f the cmpany depends n the vertex. 8 Baker McKenzie

15 Dispute Reslutin Arund the Wrld Venezuela Key Cntact Henry Trrealba Partner Tel: Baker & McKenzie Avenida Francisc de Miranda cruce cn Avenida El Parque Urbanización Camp Alegre, Caracas 1060, Venezuela Pstal Address: P.O. Bx 1286 Caracas 1010-A Venezuela Tel: Fax: ; Baker McKenzie 9