FIRST PART

CHAPTER I

EVOLUTION AND CHARACTERISTICS OF PROFESSIONS IN ECONOMIC SCIENCES

A. DUTIES AND PROFESSIONAL OBLIGATIONS

Carlos L. García Casella

THE DIVERSITY OF CALLED PROFESSIONS IN ECONOMIC SCIENCES

We consider that 'Accounting is an independent science, with interrelations with other sciences.
since some areas of its subject of study are concurrent with other disciplines; the relationship of the
Accounting with Economics, Administration, Statistics, Law, and Mathematics is mutual.
interrelationship, without dependence(1).

Unfortunately, in our country and in other regions, the tradition of encompassing within is maintained.
the so-called "Economic Sciences" to Administration and Accounting that have been showing since the 20th century.
its diverse fields of authentic Economy.
We discard that Accounting as a discipline with a scientific method depends on Economics.
Consequently, the skill acquired by public accountants in their field is specific.
In 2001, we pointed out 16 regularities or laws of the science of Accounting that are based on the following
concept of Accounting(2).
Accounting is dedicated to explaining and regulating the tasks of primarily quantitative description of existence.
and circulation of objects, events, and various people from each entity or social organism and the projection of them
in view of achieving organizational goals through systems based on a set of assumptions
basics.
We can summarize our position by acknowledging that Accounting does not depend on Economics, nor is it
part of it; and it is not, since people and entities dedicate part of their energies or
efforts to achieve non-economic objectives existing social goals and effects in the
organizations that make their activity not purely economic.
To address the duties and professional obligations of human beings who exercise knowledge
accounting, this first clarification of the diverse themes of public accountants is necessary, the
graduates in administration, graduates in economics, and actuaries in our country.

2. THE SCIENCE OF ACCOUNTING AND ITS PROFESSIONAL PRACTICE

2.1. Concept
The concept of Accounting presented in point 1 makes us consider it a factual science,
cultural, applied that deals with the interrelationships between the components of informational facts of
all types of entities. Concrete accounting systems would respond to the Alternative Accounting Models that
They can be developed to meet the interests of users of the accounting product when making decisions.
That would be the so-called social function of Accounting: to assist in the development of human society.

2.2. Topics addressed by accounting

To understand what topics Accounting addresses within the social reality in which we operate, it is
it is necessary to move away from a reductionist approach and accept, for example, that the discipline and public accountants
they deal with:
1. The financial reports for external use to the issuing entity;
2. The individuals issuing the accounting reports;
3. The reviewers of the accounting reports;
4. The recipients of the accounting information;
5. The human groups regulating accounting information;
6. The macro accounting systems in force in countries, regions, and globally;
7. The micro accounting systems of all entities in society;
8. The accounting regulations of professional accounting organizations;
9. The regulations of accounting activity in national and supranational jurisdictions;
10. The accounting reports intended exclusively for use within the issuing entity;
11. The accounting reports of the activity of governments at different levels;
12. The macroeconomic accounting reports;
13. The social accounting reports;
14. Environmental accounting reports;
The list is merely indicative; there are more situations in human life in society that require...
support of accounting knowledge to provide solutions to problems that may arise, perhaps,
permanently.

2.3. Opinions
In 1997, Antonio Lopes de Sa published a lecture he gave at the University of Zaragoza and that
faced the problem of accounting knowledge and the activity of public accountants; he said3:
At the end of 1977, I received correspondence from Professor Abraham J. Briloff of New York University, something
extremely special with his book More Debts than Credits, where he called our attention to the serious
problems that occurred in the United States linked to a Senate process that accused accountants of
incompetent or complicit with the frauds of the capital markets, due to the alterations of the Principles and
Accounting standards. That professor advised me to read other publications of his in newspapers as well as the
testimonies that can make accusations about the manipulations that were made in the normalization.
The result of that 20-year concern meant that work published in Buenos Aires and that reflects
ethical issues of the accounting profession currently in the present years of the 21st century with debates
transcendental issues in the European Commission regarding the responsibility of accounting activities in the
repeated global financial crises.
I highlight some proposals from the distinguished recently deceased Brazilian professor that will guide us.
regarding discipline, its practice and its relation to Ethics or Practical Philosophy.
 If we do not have a General Theory of Knowledge in Accounting underpinning the orientation of the
information and the rules that govern them, we will never be able to know how to observe, perceive and, consequently,
inform
the concepts must generate theorems and these theories. And the set of these theories is what forms the
science.
We consider that Accounting can have Alternative Accounting Models that allow for a better
exercise of their task as professionals who apply accounting knowledge to solve problems
what the plaintiffs demand from their services.
If we analyze some of the concepts of the accounting discourse domain, we will see that its modeling
it would help the work of the experts in Accounting, who in our country would be public accountants with
the incumbency established in theLaw 20.488.
This article raises the issues of seven components of the relationship of accountants.
public and their possible solutions, seven more addressed in the year 2000 are cited.

3. THE LEGAL RESPONSIBILITY AND THE MORAL AND ETHICAL RESPONSIBILITY OF THE PUBLIC ACCOUNTANT
The issue of the legal and professional responsibility of the public accountant cannot be an element
subordinate to the "last word" as William Leslie Chapman stated in the foreword of
bookResponsibility of the professional in economic sciences in 1979, as I believe the topic is not
mainly legal but fundamentally moral.
Argentine citizens who are public accountants have a moral or ethical responsibility as such.
regardless of legal norms or jurisprudence. I believe the emphasis should be on the
attitude that we have as responsible human beings, by our own nature, and as members
of a specific community.
For those reasons, I believe that we, the accountants, have the final word on this topic.
public, beyond what jurists may argue. Our personal and social responsibility must arise
of a deep and personal analysis of the characteristics of our tasks and their connection to the good
common of the country.

If Chapman said in 1979 that "members of our profession tend to have a very vague idea
about the scope of his responsibility," I think it is due to the fact that this author, at that moment,
I considered that the professional responsibility of the public accountant was mainly legal (since he dedicated
187 pages to legal responsibility and 97 to disciplinary, which is also part of positive law.
When that author limits the liability of public accountants to the current legislation and to the
jurisprudence, we cannot support it. We do not share that criterion, the responsibility that we desire
Deepening should be the totality of the human being who is a university graduate. This human person has
obligations and duties greater than those provided for in a specific positive law and within a period of
specific jurisprudence.
If someone claims that 'moral obligation' is implicit in legal obligation, they should prove that the
current positive law on a specific date has a moral foundation that it does not always have; there are,
there have been and will be unjust or immoral laws. I believe it is not advisable to reduce total responsibility to
a legal responsibility, as we leave out fundamental elements of complete human action.
The moral obligation would be emphasized in the disciplinary responsibility that would lead to a sanction with
legal backing. I believe it is difficult to place all moral obligations in a code of ethics.
public accountants. It would be desirable for this code to contain the greatest possible coverage, but it will remain
outside of it, a wide spectrum of acts subordinate to individual conscience and without legal sanction.
I tend to opt for a broad responsibility of public accountants who, as human beings,
legally and morally responsible. A serious moral responsibility—meaning a clear, consistent, and diligent
the search for good—and a positive, daily, and laborious action of banishing evil would be the components
necessary for the action.
Regarding the independence of the professional performance of the public accountant, it seems to us that the
a public accountant is equally responsible whether they practice their profession publicly or privately; the situation of
the dependency does not force him to do anything his employer orders him to do, and he was hired because he possesses
knowledge of Accounting that the employer generally does not master. A good employer would not dictate
rules for lawyers, doctors, or engineers to practice their professions; I would ask for a performance in accordance
with the goals of the organization but without compromising its own qualities derived from its knowledge as
professional in each discipline or area of responsibility.

4. TO BASE PROFESSIONAL ETHICS, RELY ON ONTOLOGY AND EPISTEMOLOGY

In the year 2000(4)commenting on the arguments about the scientific disciplines of Mario Bunge,
We said that Accounting, in order to have the status of a science, should meet:
The general vision or philosophical transformation G of C consists of:
a) An ontology of changing things (instead of an ontology of phantom or unchanging objects).
b) A realistic (but critical, not naive) epistemology instead of, say, an idealist epistemology or
conventionist.
c) The ethos of the free search for truth (instead, let's say, of the ethos of faith or the pursuit of profit,
the power or the consensus.

And applied to Accounting, it turned out that:

a) "Changing things are studied, such as companies, accounting regulatory bodies, goods,
emitters, users, services: all real things that exist and are modifiable or changeable, neither
phantasmal nor unchanging.
b) In recognizing the objects of accounting knowledge as real, we do not do so with naïve sense.
but we consider them with a critical sense that rejects some and modifies others.
c) The ethics of the free search for truth means that it does not depend on religious faith or secular faith.
they influence scientific knowledge, nor the pursuit of profit (business groups or
labor unions, mafias or millionaires) of power (Executive Branch of the Nation or Council of
United Nations Security) of the guild (Professional Councils or Colleges of Graduates) nor
of the consensus (Generally Accepted Accounting Principles).
In the face of this need for a philosophical foundation of the professional responsibility of accountants
publics we address:
a) Philosophy in general.
b) Ontology, that is, the problem of being.
c) Gnoseology, Epistemology, and Critique or Theory of Knowledge.

4.1. Philosophy
As we resort to this discipline, it seems appropriate to start with a kind of definition regarding
of what is modernly understood by philosophy(5):
Philosophy is the science of the first principles, obtained by the natural light of intelligence.
When explaining the meaning of each of the elements of the definition, the chosen author says(6) :
a) "It is science: this distinguishes philosophical knowledge from vulgar knowledge."
Science is the knowledge of a thing by its principles or causes. Whoever knows something by its causes
He knows, says Aristotle, that this is so, and that it cannot be otherwise. This is the characteristic of
scientific knowledge.
b) From the first principles: this is how philosophy is differentiated from other sciences...
...everything that helps explain something...
"By the natural light of intelligence," it is not theology.
 Then we see that, regarding the formal object (special, proper), there would be 3 general opinions.
a) Positivism: it is a science like any other.
b) Rationalism: which does not distinguish philosophy from particular science.
c) The moderate realism that we proposed at the beginning of the chapter, that is, the Accounting that 'is
subordinate to philosophy in some way7.
The introductory manual I chose concludes that 'each person has to do philosophy...'(8).
Philosophy is work; philosophy is a man's thing and its stage is the ground; philosophy is historicity.
And includes [(9)linking Ontology and Epistemology in Ethics:

But man not only has to 'know what things are'; he has to 'know how to act', because he is a being
active, which feels an essential need to act, and to act based on its own knowledge.
"Here is the origin of another philosophical discipline which is the philosophy of action or practical philosophy" that we
we will call it Ethics.

4.2. The ontology

Ontology is the part of philosophy that studies being in itself or being as being.
etymology 'on' and 'logos' (being and reason) indicate a relationship between being and knowledge. That is why the ontological,
Propriately speaking, it indicates what is related to the knowledge of being... modern philosophers
to designate the real in itself, irrespective of its relationship with knowledge, they rather use the term
ontic10.
We have indicated that, following Bunge, we believe that Accounting studies real changing things.
existing and modifiable or changeable, neither ghostly nor immutable. This guides us in our actions of
public accountants as workers of an existing reality that we want to understand and achieve
Serve the interests of the human community.
There are diverse philosophical currents that accountants should know to face and decide for themselves.
which they accept regarding ontology and the ontic. For example:
Dynamist school, phenomenist attitude, actualism and perhaps the possibility of deriving into an idealism. In
In particular, one must analyze and think about the various possible causes of being: efficient, exemplary, and the principle.
of purpose.

4.3. Thinking in relation to being

Quiles(11)consider that apart from the problems typical of logic; "secondly, it is necessary to
analyze thinking in relation to being: Can thought reach being itself? Or are the
thought and being dissociated, that is to say, the reality of things distinct from thought is inaccessible
for this one? Quiles calls it 'Critique of Knowledge'; it is also referred to as Gnoseology, epistemology
Theory of Knowledge.
Thus, it lists various solutions that have been given throughout the history of philosophy to the problem of knowledge.
and groups them into 5 fundamental attitudes12:
I. Skepticism (Bayle 18th century)
II. Subjective idealism (Berkaley)
III. Transcendental Idealism (Hegel)
IV. Critical Phenomenism (Kant)
V. Naive and Critical Realism
A solution that accountants must try to achieve through their own reflection indicates the method to reach it.
to the so-called critical realism, that is, not naive:
 a) Reality of the consciousness of its subject (the self) and of its actions

b) Target value of the first principles of being

c) Reality of the own body
d) Reality of the outside world
e) Objective value of our abstract knowledge

4.4. Ethics in general

Public accountants, aware of the need to philosophize and divide the paths to follow in matters
ontological and epistemological we must address the various possible philosophical systems that derive in a
practical philosophy, that is, Ethics.

5. THE POSSIBLE PHILOSOPHICAL SCHOOLS IN THE MATTER OF PRACTICAL PHILOSOPHY

In the desire to present a broad overview for the decision of each public accountant, we gathered several
possible enumerations.
a) According to Petrungaro (Doctoral Thesis)

b) A proposal to the XIV Inter-American Conference on Accounting

c) An Ethics program from the Faculty of Philosophy and Letters of UBA

5.1. The alternatives listed by Petrungaro13

a) The proposal of happiness or pleasure
b) The proposal of perfection
c) The proposal of Saint Augustine

d) The proposal of the morals of sentiment

e) The presentation of values
f) Kant's proposal
g) The existential proposal

5.2. The alternatives proposed by García Casella(14)

1. Socrates
2. Plato
3. Aristotle
4. The cynics
5. The Stoics
6. The Epicureans
7. Skepticism
8. Eclecticism
 9. Saint Augustine

10. Saint Thomas Aquinas

11. René Descartes
12. Baruch Spinoza
13. John Locke
14. Immanuel Kant
15. George W. F. Hegel
16. Arthur Schopenhauer
August Comte
18. Friedrich Nietzsche
19. Franz Brentano
20. Charles S. Peirce
21. Edmund Husserl
22. José Ortega y Gasset

5.3. The alternatives listed in a program

In the program that was once taught at our Mailandi Universityproposed:
1. Aristotle's ethics
2. Kant's Ethics
3. Hegel's philosophical system and the ethical problem
4. Utilitarianism
5. Ethics in the philosophy of life
6. Simmel's individual law
7. Bergson
8. Analytical Ethics
9. The material ethics of values
10. Stevenson's emotivism
11. Ross's Intuitionism
We see that there are many possible philosophical schools; our proposal is that we reach one.
personal philosophical reflection as public accountants; it is not useful to adopt a school or philosophy but to prepare
the own position based on the reflective task on topics of ontology, epistemology, and ethics.

6. THE DOCTORAL THESIS OF DEPETRUNGARO AND HIS PHILOSOPHICAL REFLECTIONS

We find it appropriate to discuss in detail Petrungaro's doctoral thesis, as its title alone is a
foundation for our reflection on the possible ethics of public accountants, in particular of
our country.
The title expresses 'CODE OF ETHICS. Relevance of the principles of professional ethics over the norms
of actions contained in the code" (Petrungaro 1974, title).
 With this, he highlighted:

a) Principles of professional ethics above the actions of the codes.

b) Primacy of personal philosophical position over what is established by positive law.
c) Link the principles in positive law regarding the professional ethics of public accountants.
In the Introduction, it poses(16):
...the fundamental causes of the stated problem consist of two methodological errors (the italics are
our) fundamentals observed in the drafting of the analyzed codes, that is, those of the professionals in
economics; doctors; surveyors; agronomists, architects and engineers, notaries, lawyers
enrolled in the Federal Capital.
Summarize the errors:
It is left to the subjective judgment of the accountants whether an event not expressly contemplated harms with
the concept of professional ethics.
2. Not defining the basic ethical principles that can be verified through scientific methods.
It seems to us that there would be a search for a single position, called objective, to impose it in the codes.
of positive law.
Propose:
a) Discuss the ethical issue to choose.
b) Choose a single ethical framework.
c) Based on Popper to try to compare the current codes.
d) Propose a future code with general principles.

6.1. The ethical issue to choose

In the following unnumbered pages of the introduction, discuss the seven alternatives we indicated in the
point 5.1. above and discarding them:
They say it would be UTOPIAN to apply the notion of happiness or pleasure to a so-called 'WORLD OF
THE BUSINESS
2. Rejects the proposal of human perfections, as he distrusts metaphysical optimism, doubting
of the possibility of knowing the essences.
3. Although he calls it 'monumental', Saint Augustine is dismissed as it seems that the so-called 'world of
"businesses" do not look with unanimity at the Supreme Good.

4. He does not accept the morals of feeling because he declares himself an intellectualist.

5. The ethics of values could not be applied as there would be a multiplicity of values, not equal for all.
the people.
6. It is decided by Kant; 'I ought, therefore I can.'

6.2. The objective of science

Between pages 5 and 23, it is based on Popper that it turns out that the norms of action of the codes do not
They are based on "explanation with scientific method."
Cite the following conclusions (Petrungaro17):
1. "Practical morality, as it reflects norms of conduct, arises from observation and experience, being, in
change, as ethical principles guide such conduct.
2. These principles are necessary...
 3. "The methodology to test the hypotheses put forward is based, according to Kant and Popper..."
It is one possible methodology among others that will serve to define the ethical principles of the public accountant.
Petrungaro; but each of the other thousands of public accountants has the right to decide the principles.
ethics that derive from the task of philosophical reflection of each individual as a responsible human being of their
acts.
The objectives and methods of all sciences, including Accounting and the Ethics of accountants must
to be chosen personally and without dogmatism.

6.3. Comparison of the current codes

Chapter II is dedicated from page 24 to 119 to the comparative and critical analysis of various codes.
of current ethics, with the following clarification (Petrungaro 1974; p. 24):
The first reflection that I consider important before starting the topic is the need for a code.
of Ethics establishes principles whose violation is submitted to the consideration of the peers of a professional.
In this regard, I opine:
I. If the philosophical principles of professional ethics are included in a code of positive law, they cease to
be a source of moral or ethical responsibility based on the possible principles of each professional.
II. The peers of an accountant or any university professional cannot judge responsibility.
of the morality of a human being who is recognized as such and therefore has the right to have
philosophical principles and, in particular, various ethical ones.
Petrungaro seeks to extract the fundamental basic principles of codes by judging them based on Kant.
and Popper. I find it appropriate to decide the ethical principles based on scientific-philosophical grounds of the accountant.
Petrungaro, but they might not be like those of many other colleagues, including myself.
In chapter III (pages 120 to 139), it analyzes the jurisprudence of the Professional Council of Sciences.
Economics of the Federal Capital (1945-1970).

6.4. Conclusion and thesis

Try to separate in a future professional code of ethics:
a) Indicative concepts of ethical principles;
b) Action norms.
The principles they propose are four:
a) One should not act with malicious intent;
b) It must not be negligent;
c) Must respect their colleagues and clients;
In light of this development based on Kant and Popper, we can propose multiple possible alternatives of
principles of professional ethics, but not intended to be included in a code of positive law but for
to serve as a guide for each professional in practice.
A possible non-unique alternative to disagree with Petrungaro through a Kantian approach could be; following
a Maritain:
...it is in the domain of philosophy, with Kant and Kantian ethics, where the most significant example is found
the way in which the influence of Christianity and revealed ethics can hinder a reason that also repudiates
Everything in Christianity makes life and the truth unique to it. It is always dangerous to be a half Christian.
The impact of Christianity verifies reason (without making it infallible) when it feeds on the substance of Christianity.
The impact of Christianity leads to a deviation of reason. The sanctification of moral life becomes a dangerous benefit.
when we cease to understand what this really means. What was a supernatural reinforcement and a
sacred promulgation of the moral law will become a hardening and an arrogance against nature in a
ethics that does not preserve the important aspects of the tablets of the law but rather to transform them into the tablets of pure reason.
 We agree with Maritain that Kant achieves:
Eliminate the ultimate subjective end;
2. The Kantian disinterest;
3. The elimination of the absolute ultimate end;

4. Kantian autonomy;
5. The primacy of you must be free of all content.
Schematize Maritain(19)the first column corresponds to my opinion following Saint Thomas of
Aquino, the second to Petrungaro following Kant.
Cosmic-Realist Ethics Cosmic-Idealist Ethics
Metaphysically and 'physically' based Neither metaphysically nor 'physically' based
Experimental regulation Normative deductive
God
2. Nature
3. The law (natural law)
4. Reason (the measuring rule and measure) The reason (purely measuring)
5. The moral goodness of the imperative object 2. The law (purely formal)
(categorical imperative) 3. The righteousness (or ethics) of the act (by virtue of the universality of its maxim) of
6. And, consequently, from the act where, by increase, the moral goodness of the object.
Moral good is based on reality.
Moral good is based on the universality of practical reason.
extra mental.

7. THE DEFOWLERNEWTON AND PETRUNGARO ARTICLE

In 1981, an article by colleagues Fowler Newton and Petrungaro appears.(20)what they comment on the new one
validity of the Code of Ethics approved by the Professional Council of Economic Sciences of the Capital
Federal to govern from January 1, 1960.
They attempt there:

a) The concepts of ethics and morality;

b) The ideal criterion of a code of ethics.
They deduce that "any code of ethics should, at a minimum, state the principles that should guide
the behavior of individuals within its normative scope and facilitate the eventual adjudication of
such behaviors" (Fowler - Petrungaro 1981:316).
We see what, in my opinion, is Petrungaro's mistake of 1974: wanting to include in a legal norm
positive the principles of ethics that would be the consequence of the philosophical position of each one of the
professionals.
We agree when he says (Fowler - Petrungaro(21)In short, the content of any list of
ethical principles would depend, among other things, on the philosophical current to which the author belongs.
formula.
We recognize that they cannot build a complete list of ethical principles and want to use the method.
from Popper given in Petrungaro's thesis: they seek the principles with a high degree of probability of
correspondence with reality.
His proposals for principles are:
1) Loyalty or Good Faith;
2) Careful and Responsible professional performance;
Respect for your peers;
Discretion.
We reiterate that ethical principles should not be in positive law legislation.
 8. POSSIBILITY OF COEXISTENCE OF DIVERSE PERSONAL ETHICAL OPTIONS
Without stopping to point out the coincidences with Petrungaro in dismissing the proposal of morals of the
feeling, that of values and existentialist, the next question is how we do the thousands of
graduates to express common ethical principles, if they depend on "the philosophical current to the
that belongs to the author that the formula," as noted by Petrungaro and Fowler Newton.
We have already gained the conviction that every graduate must reflect seriously and choose with
consciousness, but the whole, what will it do?

I would like to outline a proposal now based on something common to all those graduates, which is
corresponds to some extent with the three formulas of the oath of graduates of the Faculty of Science
Economics of UBA.
1. By God Our Lord and these Holy Gospels, the Homeland and the Well-being of Humanity and the
Human Rights.
For the Fatherland, the Well-being of Humanity, and Human Rights.
For God, the Homeland, the Well-being of Humanity, and Human Rights.
This would correspond to:
1. Christian criteria;
2. Agnostic criteria;
3. Theistic criteria.
These groups, I believe, should deepen their philosophical positions, with the consequent ethical contribution, and
achieve a broad dialogue based on the principles of the National Constitution that would be those that make
possible the existence of the Fatherland or Nation Argentina.
I think this is well-understood pluralism; it is not necessary for the Christian to renounce their position, nor for
the theist loses his religious freedom; what should be sought is the commonality in the common experience in a
organized community.
To that possibility of conscious and strong coexistence in the personal position, but open to dialogue and
Respectfully, I attribute the generation of the specific principles voluntarily accepted by those of us
we submit to the National Constitution as the superior law of peaceful and democratic coexistence.
And so, I disagree with Petrungaro and Fowler Newton, who wanted to apply Popper's method of
validation, already used by Petrungaro in his cited doctoral thesis, where an exercise is also presented
of validation consisting of contrasting the conclusions drawn from the analysis of the jurisprudence of
C.P.C.E.C.F, between 1945 and 1970, considering the resulting referred principles.
This discrepancy is based on the fact that the ethical principles of each philosophical current cannot be submitted.
to that scientific validation exercise.
What should be done is to negotiate among the various groups that coexist within the framework of the Homeland,
Nation or the National Constitution, and obtain a list of principles accepted by all and considered
sufficiently important.

B. THE PROFESSIONS IN ECONOMIC SCIENCES IN OUR COUNTRY

Carlos S. Zaglul
 1. EVOLUTION OF PROFESSIONS IN ECONOMIC SCIENCES IN OUR COUNTRY

1.1. Introduction
Through this point, a brief review of the evolution of science professions will be conducted.
economic conditions in our country, highlighting its most relevant background, such as the creations of
the Carlos Pellegrini School of Commerce, the Faculty of Economic Sciences of UBA, the
Graduate School of Economic Sciences and the Professional Council of Economic Sciences of the
Autonomous City of Buenos Aires.
Finally, an analysis of the current and future situation of these professions will be carried out, especially the
referring to that of public accountant, within a framework of regional and global economic globalization, the
permanent technological change and the growing concern of the individual for the social (ecological, ethical and
human rights), and therefore, of the new role they must play.
As an example, and considering the current existence of a social demand for a
good administration of justice that is managed by the State and in a context of saturation
such that it does not allow him to respond adequately to the needs of his community22the need arises
to take on new roles, such as assisting entrepreneurs in a negotiation,
mediation or in arbitration.
Likewise, the most relevant aspects of the federations of the graduate schools will be provided.
of economic sciences, of the professional councils of economic sciences and of the associations
most important internationals.

1.2. The Carlos Pellegrini Higher School of Commerce"(23)

The first precedent regarding the establishment of a commercial school is based on the project presented
by Dr. Manuel Belgrano in 1796, in his capacity as Secretary of the Royal Consulate of Buenos Aires, in
the one that establishes that this school will be the place:

... where young people go to be educated in arithmetic, in the way to keep accounts and reason, and have the
books; in the calculation and regulation of exchange; in the rules of commercial navigation, insurance, etc.; in the
way to establish the commercial correspondence and maintain it, in the laws and customs used between
merchants, etc., where at least they are taught the general principles of geography and production.
What countries abound or lack, so that with these principles they can make their speculations.
with the greatest possible accuracy and those engaged in trade are provided with advantages and advancements
let them be put to work.
Both the described project and its subsequent proposal formulated in 1810, in the Mail of Commerce,
they were rejected.
In 1821, at the initiative of Rivadavia, the University of Buenos Aires was created, and in 1825 a decree was issued.
recognizing the usefulness of a School of Commerce founded during the government of General Las Heras.
The career of Certified Public Accountant was recognized during the time of Rosas (1836), when they were
requirements for obtaining the degree: an exam in law taken before the Court of Appeals; one of
accounting and arithmetic submitted before a court chosen by the government; age of 25 years; citizenship
Argentina and certificate of good conduct ('good federal').
It was only on February 19, 1890, that Dr. Carlos Pellegrini, Vice President of the Nation, in the exercise of the
presidency, signs the decree for the creation of the National School of Commerce, now the Higher School of
Trade "Carlos Pellegrini".

1.3. The Faculty of Economic Sciencess(UBA)

1.3.1. Its foundation
Although the University of Buenos Aires was founded in 1821 by decree of the governor of the province,
General Martín Rodríguez, and his Minister of Government, Mr. Bernardino Rivadavia, the Faculty of Sciences
Economics was created on October 9, 1913.
Until that moment, the university was composed of only four faculties: Law, Medicine, Sciences, and
Agronomy and Veterinary Medicine.

The history of the faculty is closely linked to the foundation, as we have seen, of the School.
National Trade.
In 1892, under the ministry of Balestra, it was determined that those who passed with high grades
certain groups of subjects were offered the title of commercial expert.
In 1897, Minister Bermejo successfully regulated the issuance of the public accountant title, which
it meant two years of studies and included two courses in accounting, two in Spanish and literature, and
three of civil, commercial and customs legislation.
As early as 1905, Dr. Joaquín V. González raised the years of study to three and increased the number of
subjects, with the aspiration that this reform would achieve its intention, which was the creation of a school
who will be responsible for the accounting courses.
As a preliminary step to the creation of the Faculty of Economic Sciences, it takes place in 1910, under the
presidency of Dr. José Figueroa Alcorta, the founding of the Higher Institute of Economic Sciences and
Commercials, at the request of Dr. Carlos Rodríguez Etchart (who would later become the first dean).
Finally, under law 9254 of October 9, 1913, the University of Buenos Aires is authorized.
to organize, based on the Higher Institute of Commercial Studies, the now Faculty of Sciences
Economic.

1.3.2. Today's faculty looking towards the future

Taking into account the requirements of society as a whole, outlined in the Colón Agreement.
carried out by the University of Buenos Aires, the new curriculum, approved starting in 1997
by the Faculty of Economic Sciences, acknowledges in its "Bases for the curricular reform" that the changes
that are occurring in the world and in our society imposed a rethinking and reformulation of
the contents, methodologies, organizational schemes, decision criteria, and modalities of
institutional functioning, in order to enhance the quality and relevance of teaching and research
and of the actions of outreach to society.
In general terms, the profile of the graduate from the Faculty of Economic Sciences is defined by
University of Buenos Aires as that graduate who:
Ensure a solid general preparation for knowledge generation simultaneously for
the world of production.
Encourage the critical appropriation of the basic components of culture and the possibility, therefore,
from active, responsible, and supportive participation in the community in general and in political life,
academic and work in particular.
Facilitates circulation in broad professional fields and mobility in changing markets.
work, essential in contexts of innovation and uncertainty.
Involve yourself in defining the missions and purposes of organizations to incorporate values
ethical and moral, and fulfill social responsibilities towards the community.
The new proposed curricular structure suggests the integration of certain cross-cutting axes related to
a series of problems related to the demands arising from the context regarding training
professional and comprehensive of the graduates.
 The professional of today for the future involves the development of new ways of thinking, articulated
with their discipline and the integration of knowledge, procedures, and attitudes that they will acquire in the
course of the race.
The authors Víctor M. Gómez Campo and Emilio Tenti Fanfani, in their book University and Professions, tell us
they introduce a series of studies and definitions of what is understood by university professional, the
which will help us to fully understand the role of the professional.
Thus, Carr-Saunders and Wilson (25)they propose some criteria to identify a profession. Among them
they emphasize the importance of intellectual competence, understood as the ability to fulfill all
those specialized services on which the constant functioning of modern society depends.
Hence their definition of profession as 'a group of people who manage to practice a defined technique.'
based on a specialized instruction.
According to A. Flexner, there are criteria to define a profession:
It necessarily involves intellectual operations.
2. Derives from science and instruction material.
3. Handle this material with a defined and practical purpose.
4. It possesses an educationally communicable technique.

5. Tends to self-organization.
It is becoming increasingly selfless by nature.
To this list, the author Myron Liberman adds the following items:
A high degree of autonomy, both for the individual who exercises it and for the group considered as
a everything.

2. Acceptance by professionals of a great professional responsibility regarding

judgments made and the acts carried out within the scope of professional autonomy.
According to what has been read so far in this chapter, the evolution that has taken place can be observed.
the profession specifically of public accountant since its origins, the reason for the necessity of this
the profession being considered a university profession is supported not only by practice, but also
also from a theoretical framework, where Edgar Schein(26), among other authors, considers that the
Professions constitute a set of occupations that have developed a true system of norms.
that derive from their special role in society". Among these roles and norms, it lists the following:
The professional is different from the amateur; they are fully engaged in an occupation that constitutes
its main source of income.
It is assumed that he has a strong motivation and performs his job continuously.
3. It possesses a specialized body of knowledge and skills that are acquired over a period of time.
extended education and training.
4. Make decisions in favor of a client according to general principles, theories, or propositions.
that are applicable to the case under study.

5. Has a spirit of service, as he uses his knowledge for the benefit of the customer. This service implies
diagnostic skills, competent application of general knowledge to needs
specific to the client. In other words, it is characterized by an absence of self-interest.
6. The professional service is based on the client's objective needs and is independent of the
particular feelings of the professional towards the client. The professional promises a diagnosis
"impartial". The client, in turn, must be frank when declaring potentially undesirable information.
for him.
It is assumed that the professional knows better than the client what is good for them. Therefore, the
a professional claims autonomy of judgment regarding their own actions. Only their colleagues can
to judge it. This demand for autonomy places the client in a potentially dependent situation
vulnerable. Therefore, strong ethical and professional standards are developed among the members of a
profession, which is expressed in codes of conduct and in colleges or associations that exercise control
of entry and practice of the professions, as we will see in the next points to be developed in this
same chapter.
 8. Professionals establish professional associations that define admission criteria, levels
educational, titles or entrance exams, careers and areas of jurisdiction for the professions. To
At the same time, associations protect the autonomy of the professions.
9. Professions have status in their field of knowledge, but it is considered that their knowledge is
specialized. The professional is not 'wise' outside the area defined by their training.
10. Professionals offer their services but should not advertise them. It is the client who must initiate the
relationship.
That is to say, the academic title obtained at a university guarantees the possession of the skill.
required and sufficient competence for a specific practice.
If within the developed theoretical framework we analyze the current and future situation of the
professions in economic sciences, especially regarding that of public accountant, within a framework of
regional and global globalization of the economy, the permanent technological change and the growing
concern of the individual for the social (ecological, ethical, and human rights), we can observe a new
role that the professional in economic sciences must face.
Thus, some of the problems posed in the current situation require that the professional of the future
possess a series of knowledge and skills, attitudes and self-image, that enables him/her, through the
acquired learning, being prepared for "uncertainty".
Transversal (curricular) losses mentioned earlier, which have been taken into account in the new
reform of the curriculum that tends to provide the theoretical and practical framework for the professional's requirements
from today into the future, they could be summarized in five:
Scientific and technological: based on the complex and changing development that occurs in these.
areas, the student, future professional, must have:
capacity to detect and incorporate new scientific and technological methods;
capacity to create new theoretical frameworks and technologies based on those available;
ability to apply scientific and technological advances to complex situations and contexts.
2. Understanding and resolving complex situations: the incessant, accelerated changes and
the complexities of organizations require learning to 'manage complexity', for which the student
as a future professional you should have:
ability to formulate strategies;
ability to integrate and form work groups;
ability to negotiate and resolve conflicts;
capacity to reflect on and in practice.
3. Ecological and human development: recognizing that the irrational use of natural resources has
generated serious environmental problems on a global scale, which have gained dimension
international and influence the quality of life, production, and trade, the student, as a future
professional, must have:
ability to recognize general issues related to human development;
ability to take initiatives in the preservation of the environment and ecological balance;
ability to anticipate the consequences of human activity on the use of natural resources
and to minimize environmental harm;
ability to establish relationships between economic factors and activities, development
sustainable and the ecological problem.
4. Ethical and human rights: ethical training is not covered by the simple formulation of
knowledge of a normative system that regulates human behavior. On the contrary, it implies taking
of awareness and the defense of democratic values, social cooperation, perfecting and
updating moral standards, participation, and real social commitment to the common good, and
prioritizing the honesty of actions. In order to achieve this objective, it is necessary to recreate the
competencies and skills of the students for:
respect freedom and the exercise of tolerance;
harmonize work and capital;
 promote creativity, initiative, solidarity, and cooperation.
5. Role of the State: the necessary modernization of the State implies its strengthening, since it is the
responsible instrument, essential to ensure the governability of society in a system
democratic, establishing rules of the game that lead to greater social justice and the different processes
of integration of the nations.
The role of university professionals as an integral part of society must have a greater
participation that ensures the role of the State.
Thus, Mg. Juan Carlos Viegas(27)consider that the training of high-level professionals of
excellence, research, and the plans for extension and scientific and technological transfer constitute the
essential objectives in the activity carried out by the university.
Likewise, it is undoubtedly considered that research tasks must occupy a broad space in order to
to summon and integrate teachers and students in the continuous pursuit of knowledge, which must
to become an irrevocable act for any higher education institution.
The university's connection with society, responding to its demands and anticipating the future,
It is another mission that must be fulfilled to ensure high-quality academic standards.
The structured curriculum plan in cycles tends to guarantee the new curricular design, as it allows for
students are guiding their training as they progress in their studies, and making decisions
that they consider relevant when, as they progress through their studies, they visualize more clearly their
professional vocation.
Thus, the current curriculum covers a general cycle, with a duration of two academic years, whose
The objective is to provide very solid basic and general training, both theoretical and empirical, and a professional cycle.
whose duration depends on the chosen professional career.
As a closure to the professional cycle, and a final requirement prior to graduation, a seminar is planned.
integration and application, which could be accredited through other possible activities. Its objective is to achieve
the integration of the knowledge acquired during the development of the career, for which ones should
demonstrate the levels of knowledge acquired during their training. The seminar will be led by the
program directors and department heads.
The coordination and control of the activities carried out by the students are developed under the modality
of tutoring, tasks assigned to tenured professors, associate professors, directors of research institutes and
research project directors, according to the specialty chosen by the student.
The system also provides for the possibility of the student completing tasks through internship agreements or
credit work activities carried out or currently being carried out, related to your studies.
Taking into account the transversal axes proposed, the tasks will be credited for the purposes of the seminar.
that are assigned to students in those plans that the university has designed to meet the
provision of a social service.
In conclusion, we can say that the implementation of the curriculum plan launched from
since 1997 seeks that the university guarantees the training of graduates with the following
characteristics:
a) ability to learn, with all that it implies: knowing how to do, knowing how to learn and, above all,
to know how to be

b) ability to solve problems in the face of uncertainty;

c) critical, creative and leadership capacity;
d) ethical training with social values over personal values.
We must keep in mind that the university not only provides academic training to graduates,
but, in our country, by virtue of the current legislation, it enables them for professional practice.
Thus, starting from the year 2006, the FCE - UBA created a 'Forum for updating the graduate profile.'
which aims to detect needs in the professional and scientific training of graduates, for the purpose of
to adjust the contents being taught. In that direction, a series of roundtables was organized between 2007 and 2009
round tables, for each of the majors, where graduates of the Faculty occupy relevant positions
in the selection of human resources in major companies, studies, and public organizations,
sharing their points of view with our teachers and students. Meetings were also organized
with the aim of analyzing the future graduate's ability to generate knowledge and research and
to develop cooperative and supportive attitudes in its graduates(28).
In the following points, the creation and functions of the College of Graduates will be observed.
in Economic Sciences and the Professional Council of Economic Sciences that, according to the theories
formulated by authors such as Carr-Saunders and Wilson(29), already in 1939 they indicated that the motivations of
the professional associations are as follows:
a) the definition of a dividing line between qualified and unqualified individuals;
b) the maintenance of high levels of professional character or honorable practice;
c) the elevation of the professional group's status; and
the desire for the profession to be recognized by society as the only one fully competent to
carry out your particular task.
In summary, professional associations constitute a tactical element within the struggle that
professions advocate for greater autonomy and social recognition.

1.4. The College of Graduates in Economic Sciencess30

In 1891, a group of accountants, understanding the significance of their task, of the need for
to modernize studies, to adapt to the demands of the country in the future, and that its function was not to
a bookkeeper, but much broader, they deemed it essential to expand their knowledge
cultural and economic.
Thus, on November 26, 1891, the School of Accountants was founded, now known as the School of Graduates in
Economic Sciences.
Both the National School of Commerce and the College of Accountants of the Federal Capital were the
exemplary institutions that began the fruitful task that a few years later gave rise to the creation of
the business schools and accounting colleges across the country. They had the arduous task of raising to
higher levels of accounting, administrative, and economic studies and practices, bringing together their
professionals in centers of significant technical and academic development.
Considering the nature of this type of associations, graduate schools are entities without
non-profit purposes, organized as civil associations, of voluntary association, governed by the Inspection
Attorney General as a supervisory body in the Autonomous City of Buenos Aires.
Finally, we can mention that among the functions performed by this entity are highlighted:
a) to promote and sustain the spirit of unity and brotherhood among professionals;
b) to ensure the honorability in the exercise of the assigned missions, and the defense of prestige and the
interests of its members;
c) provide advice to public authorities and private institutions that request it;

d) organize conferences, scientific competitions, meetings, congresses, days, assemblies, etc., on

points related to the mentioned careers;
e) manage and assume professional representation before university bodies and other entities or
public institutes of the country.

1.5. Professional advices(31)

Professional councils are non-state public law entities, created by theLaw 20.488which
established the legal framework for its operation.
This law also establishes the rules regarding the responsibilities and practice of professions.
related to economic sciences, as we will see later.
 In every jurisdiction of the country, there is a professional council of economic sciences, a fact that not only
arises from the mentioned law, but fundamentally from the precepts of the National Constitution, in the
which delegates the power of police to the provinces.
Article 21 determines the functions that professional councils must have, namely:
a) comply with the provisions of this law and other related to professional practice
and their respective regulations;
b) create, when appropriate, and maintain the registries related to the professions referred to in this document
law
c) "to honor, in all its aspects, the practice of professions in economic sciences, affirming the
norms of specialty and decorum specific to the university career, and stipulating solidarity among
its members
d) "to ensure that its members act with a proper concept of loyalty towards the homeland, fulfilling with
the Constitution and the laws
e) "ensure compliance with the ethical principles governing the professional practice of economic sciences";
f) to organize within their powers the professional practice of economic sciences, and to regulate and delimit
said exercise in its relationships with other professions;
pursue and combat by legal means available the illegal practice of the profession
assist the public administration in complying with the provisions related to
profession, evacuate inquiries and provide reports requested by public and mixed entities,
private
i) certify the signatures and legalize the opinions issued by registered professionals when such
requirement to be enforced
apply disciplinary corrections for violations of the codes of ethics and the fees.

1.6. The federations and their technical bodies

As we have seen, there are two first-degree institutions related to the profession of sciences.
economic, which are: graduate schools and professional councils.
At the same time, all institutions at the national level make up the second-level entities known
as federations, and in this case:
Argentine Federation of Graduates in Economic Sciences (F.A.G.C.E.).
2. Argentine Federation of Professional Councils in Economic Sciences (F.A.C.P.C.E.).
LaF.A.G.C.E., founded in 1926, groups around 20 schools. Its statute defines it as a
"guild-type organization", since it talks about the interests of professionals and the colleges
federated, and to contribute, among other things, to the improvement of the profession.

Within this Federation, the Technical Institute of Public Accountants operates as a technical body.
(I.T.C.P.), founded in 1969, serves the profession in all technical matters.
scientific ones linked to their practice and that contribute to their ranking.
The work carried out by this institute is reflected in its pronouncements that have had a
important influence in the dictation of various legal and professional norms.
We say influence, since these pronouncements are not mandatory for their application by
part of the professionals in economic sciences, but through the laws, decrees, and resolutions that
given the Legislative Power or the Executive Power, or in the professional field, when the councils
professionals issue technical resolution regarding this.
The works produced by the I.T.C.P. are reflected through what are called
recommendations, opinions and reports.
Their own regulations define them as follows:
 Recommendations: "are proposals for the creation or modification of the principles and standards referred to
the form and content of the financial statements and the provisions and regulations related to the activity
public accountants professional. They represent the position of the institute. Once approved,
they constitute the basis for future rulings.
Opinions: "once approved, they serve as guidelines for public accountants in their practice.
professional. The principles or standards contained in the opinions approved by the board of directors
from the F.A.G.C.E., were considered to be of general acceptance, not mandatory.
Reports: 'they are the institute's opinions on formal aspects related to the application of the
recommendations, opinions or legal standards.
LaF.A.C.P.C.E., founded in 1973, is, like the previous one, a second-level organization that
it groups the professional advice of economic sciences from all over the country.
Its objective is to formulate mandatory technical-professional standards for those graduates.
that they should use them in their professional practice.
As a technical body of that federation, the Center for Scientific and Technical Studies was created.
(C.E.C.yT.), which issues reports of different types, some of which served as antecedents for the
technical resolutions of said federation.
In the regulations of the mentioned federation, it is established that before the conversion of the reports
in technical resolutions, they must be subjected to public consultation for a certain period of time,
in which the opinions are gathered not only from the councils that make up this federation, but also
Any professional or interested party in the subject can express their opinions.

1.7. International organizationss(32)

Such organizations can be classified into two main groups: those of a global nature and those of
regional character.
Within the international global accounting organizations, we can mention the
next:
Of a professional nature
I.F.A.C. (International Federation of Accountants).
I.A.S.B. (International Accounting Standards Board).
The Federation of European Accounting Experts.
Of a governmental nature
United Nations Working Group.
OECD Working Group on Accounting Standards
Within the regional international accounting organizations, we can mention the
following:
Of a professional nature
U.E.C. (Union of Accounting, Economic and Financial Experts).
A.I.C. (Inter-American Accounting Association).
Of governmental nature
Programs for harmonizing accounting standards and financial reporting that
may arise within the framework of:
The Group of Studies of Experts of the E.E.C. (European Economic Community);
The MERCOSUR;
NAFTA;
The African Accounting Council (OCAM);
 The Association of Southeast Asian Nations (ASEAN).

2. PROFESSIONAL INCUBENCIES

2.1. Introduction
In light of thelaw 20.488 The professional competencies of graduates in sciences are detailed.
economic, in private activity and in the judicial field.
This law, enacted on May 23, 1973, has since regulated the professional practice of the
professions in economic sciences. Until its enactment, and as we will see in section 4.2 of this chapter,
The current legal regime was that provided by decree-law 5103/45.
Thearticles 1sta3rdfrom theLaw 20.488establish that under this norm regulations are set in the professions
de:
Bachelor's degree in economics;

Public accountant;
Bachelor's degree in administration;

Actuary;
It establishes who will be able to practice these professions, determining the respective conditions that
must be fulfilled in that the diplomas were issued by national, private universities and
foreigners, with special attention to the degrees issued prior to decree-law 5103/45 and to thelaw
20.488.

2.2. The functions of professionals in economic sciences within the framework of law 20.488

2.2.1. Functions corresponding to the public accountant

Article 13 states that the professional task of the public accountant can be divided into two main parts.
areas:
In economic and accounting matters;
In judicial matters.
Thus, list as a professional responsibility of the public accountant within each scope:
In economic and accounting matters, when opinions serve judicial or administrative purposes,
or are intended to make public faith regarding the following issues:
Preparation, analysis, and projection of accounting, budgetary cost, and tax statements
in companies and other entities.

2. Review of accounts and their documentation.

3. Provisions of Chapter III, Title II, 1. I of the Commercial Codeo(34).
4. Accounting organization of all types of entities.
5. Development and implementation of policies, systems, methods, and work procedures
administrative-accounting.
6. Application and implementation of data processing systems and other methods in the aspects
accounting and financial aspects of the managerial information process.
 7. Settlement of damages.
8. Direction of the inventory surveys that serve as the basis for the transfer of businesses, for
the constitution, merger, split, dissolution and liquidation of any kind of entity and assignments of
social quotas.
Intervention in the operations of the transfer of goodwill, in accordance with the
provisions of theLaw 11.867, for which all necessary actions must be taken
necessary for its purpose, including publishing the relevant announcements in the Official Bulletin, without
prejudice to the functions and powers reserved for other professionals in the mentioned regulation
legal.
10. Intervention, together with attorneys, in the contracts and statutes of all kinds of corporations
civil and commercial, when issues of a financial, economic, or tax nature are raised
and accounting.

11. Presentation with your signature of financial statements of national, provincial, and municipal banks,
mixed and private, of any company, society or public institution, mixed or private, and of all kinds
of differentiated economic entity.
Especially for the financial entities covered by law 18.061(35), each public accountant
He/She will not be able to subscribe to the balance of more than one entity, also fulfilling the requirement.
expressed in art. 17(36)of this law.
12. Any other issues related to economic, financial, and accounting matters, concerning the functions that belong to it.
own according to this article.
b) "In judicial matters, for the production and signing of reports related to the following
issues:
1. In the competitions of law 19.551(37)for the functions of trustee.
2. In the settlements of damages and losses, and in matters related to transportation in
general for making the corresponding calculations and distribution.
3. For the statements in dissolutions, settlements, and all asset-related issues.
of civil and commercial societies, and the accounting reports of asset management.
4. In the examinations or assessments of books, documents, and other elements involved in the
clarification of accounting issues and related to commerce in general, its practices,
uses and customs.
5. For opinions and accounting reports in administrations and judicial interventions.
6. In succession proceedings, to prepare and sign the partition accounts together with the lawyer.
that intervenes.
As an expert in your field in all jurisdictions.
In the issuance of opinions, the audit standards approved by the organizations must be applied.
professionals when it is appropriate.

2.2.2. Functions corresponding to the other graduates in economic sciences

Regarding the inherent functions of the degree in economics, Article 11 establishes, among
other things, the following:
a) "For any opinion intended to be submitted to judicial, administrative authorities, or to make
public goodwill, related to economic and financial advice for:
Market studies and forecasts of supply and demand without prejudice to the actions of graduates.
from other disciplines in the areas of their competence.
2. Economic evaluation of investment projects without prejudice to the actions of graduates of
other disciplines in the areas of their competence.
3. Analysis of the global, sectoral, and regional situations.
 4. Analysis of the external market and international trade.
5. Macroeconomic analysis of the foreign exchange, equity and capital markets.
6. Studies on global, sectoral, and regional economic development programs.
7. Execution and interpretation of economic studies.
8. Analysis of monetary, credit, exchange rate, fiscal, and wage situations, activities, and policies.
b) As an expert in your field in all jurisdictions, in the judicial order.
Regarding the functions inherent to the degree in administration, article 14 establishes the
following:
For any opinion intended to be presented before judicial, administrative authorities, or to make
Public faith, in the area of direction and administration for advising on:
1. The managerial functions of analysis, planning, organization, coordination, and control.
2. The preparation, implementation of policies, systems, methods, and administrative procedures,
finance, marketing, budgets, costs, and personnel management.
3. The definition and description of the structure and functions of the organization.
4. The application and implementation of data processing systems and other methods in the process
managerial information.
5. Regarding industrial relations, remuneration systems, and other aspects related to
human factor of the company.
6. Any other issue of direction or management in economic and financial matters in reference to
the functions that are inherent to it according to this article.
b) In judicial matters:
1. For the role of liquidator of commercial or civil companies.
As an expert in your field in all jurisdictions.
In the official appointments for the tasks of administrator at the executive or managerial level in the
judicial interventions, reference will be made to licensed administrators without prejudice to the fact that
other background information related to such designations will be taken into consideration.
Finally, regarding the tasks inherent to the actuary, Article 16 states the following among others
functions:
For every report that insurance companies, capitalization companies, savings and loan companies, etc.,
present to your shareholders, to third parties, to the Superintendency of Insurance or another public entity,
etc., and that is related to the calculation of premiums, rates, and technical reserves, among others.
2. For any report on technical issues related to statistics, the calculation of
probabilities, etc.
3. In judicial matters, when at the request of judicial authorities, the value must be determined.
economic of man and that of life annuities.

2.2.3. Other professions not covered by law 20.488

By Res. CD 167/2007 and Res. CD 69/08 of the C.P.C.E.C.A.B.A. and with the purpose of covering the
needs of the other professionals in Economic Sciences not covered in theLaw 20.488the
It was arranged to open a Special Register of Graduates with 'non-traditional' degrees.
In this way, the Council extended its services and benefits to graduates of the following majors:
Lic. en Administración Pública y Municipal, Lic. en Comercialización, Lic. en Finanzas, Lic. en Administración
Finance, Bachelor's in International Trade, Bachelor's in Foreign Trade, Bachelor's in Administration Orientation
Public Sector, Bachelor's degree in Commercial Engineering, Bachelor's degree in Cooperative and Mutual Administration, Bachelor's degree in
Industrial Relations, Bachelor's Degree in Production Organization, Bachelor's Degree in Capital Markets, Bachelor's Degree in
Banking Administration, Bachelor's degree in Administration with a focus on Health and Social Insurance, Bachelor's degree in
Administration. Agrarian, Bachelor's in Agricultural Economics, Bachelor's in Technical and Rural Administration, Bachelor's in
Corporate Finance, Bachelor's in Banks and Financial Companies, Bachelor's in Business Economics, Bachelor's in
Organization and Technique of Insurance, Bachelor's Degree in Health Service Administration, Bachelor's Degree in Administration
Public and Political Sciences, Bachelor's in Government Administration, Bachelor's in Cooperatives, Bachelor's in
Naval Administration, Bachelor in Public Administration, Bachelor in Maritime Economics, Bachelor in Administration and
Social Policy Management, Bachelor's in Hotel Administration, Bachelor's in Naval Administration.
For their part, the Graduates in Information Systems of Organizations, who graduated in the
Faculty of Economic Sciences of UBA, or graduates of equivalent degrees from other
Universities (when the curriculum analysis determines the framing of the degree with the Sciences
Economics), can register in the Special Registry of Information Systems Graduates and
access the services, facilities, and benefits offered to registrants, except to be an elector or
candidate to join the Board of Directors, the Professional Ethics Tribunal, or the Oversight Commission of
according to Res. CD 41/05 of the C.P.C.E.C.A.B.A.

3. REGULATIONS FOR PROFESSIONAL PRACTICE IN THE AUTONOMOUS CITY OF BUENOS AIRES

3.1. Introduction
In this last point, aspects related to professional practice will be developed, on the topics
related to legalization, regulation, tariffs, and standardization for professional practice in the
Autonomous City of Buenos Aires, by virtue of thelaws 20.488y 466.
The functioning of the Professional Council of Economic Sciences of the City will be explained.
Autonomous University of Buenos Aires as well as its disciplinary tribunal, indicating, finally, the penalties.
legal and disciplinary actions that a professional may be subject to.

3.2. Decree-Law 5103/45 and Law 20.488

Decree-Law 5103/45, enacted on March 2, 1945, regulated the exercise of the following
professions in economic sciences:
Doctor in economic sciences;
2. Public Accountant;
3.Actuary.
Likewise, this standard considers as a professional activity that carried out individually,
exclusively independently and in accordance with the fees regulated by the respective tariffs,
both in the private sector and in the judicial.
Therefore, it tends to regulate the practice of each of the aforementioned professions, the
conditions for exercising them, everything related to their responsibilities and the conditions that must be observed in
regarding the use of the title and illegal practice.

As we saw in point 3.1., decree-law 5103/45 was repealed by theLaw 20.488 of May 23
from 1973; the regulated professions since then according to what we mentioned are:
Bachelor's degree in economics;

2. Public Accountant;
3. Bachelor in Administration;
Actuary.
 Unlike its predecessor norm, the law applies to all registered professionals with
independence of whether its exercise is carried out in a dependent or independent manner.
Article 3 states that the performance of acts that imply will be considered as professional practice.
require or commit the application of knowledge specific to such individuals, especially if
consist of:
a) the offering or provision of professional services;
b) the performance of functions derived from judicial appointments ex officio or at the request of a party;
c) the evacuation, issuance, presentation or publication of reports, opinions, rulings, consultations,
studies, advice, expertise, investigations, valuations, budgets, writings, accounts, analysis
projects, or similar works intended to be presented before public authorities
or public, mixed or private entities.
Article 8 establishes that anyone who engages in the illegal practice of the profession may face imprisonment and fines.
either for not having a valid license, or for someone who has it but has had their registration canceled.
Indicate, as we have seen, the responsibilities of each of the professions, both in private activity.
as in the judicial field, the creation of professional councils of economic sciences in each one
of the provinces, indicating their powers and those related to disciplinary sanctions that may be imposed
apply.

3.3. Operation of the Professional Council of Economic Sciences of CABA

Thelaw 466sanctioned on August 3, 2000 by the Legislature of the C.A.B.A., aims to provide
the regulatory framework for the operation of the Professional Council of Economic Sciences of the City
Autonomous City of Buenos Aires.

It establishes that said council will be made up of a board consisting of 25 councilors.

main members and 25 substitutes, registered in one of the respective registries, with a seniority not less than
of 5 years.
The duration of the term will be 3 years, and it can be re-elected for 3 more years. After this re-election
Their members may not be re-elected except after an interval of 3 years. The performance of the position will be
honorary and mandatory character.
Simultaneously, a monitoring committee of accounts and a professional ethics tribunal will be elected.
The Oversight Commission on Accounts will be made up of three regular members and three alternate members.
who will serve for 3 years in their positions, being able to be re-elected. They must be registered in the registry of
public accountant with five years of experience.
The Professional Ethics Tribunal will consist of 15 regular members and 15 substitutes. They are governed by
the same re-election conditions as for the members of the Board of Directors.
The court will operate divided into four or more chambers and establishes the sanctioning powers of each one.
of the court chambers in plenary and the current appeal system.
Specifically, Article 10 establishes the following rights and obligations of the council:
a) "The government, administration, and representation of the Professional Council of Economic Sciences,
exercising fully the functions, powers, and responsibilities granted by the articles
Articles 2 and 3 of this law, except for those that by their nature correspond to the Ethics Tribunal.
Professional, meeting in ordinary session at least once a month and extraordinary whenever necessary.
that is convened by the President or by half of the total of its members.
b) Create delegations of the Professional Council when deemed necessary and convenient, setting the
scope of its functions. Create commissions or subcommissions, permanent or temporary, for purposes
determined and for the purpose of better compliance with the objectives of the Professional Council.
c) Dictate internal regulations and establish the administrative functional organization chart.
d) Dictate the Professional Code of Ethics and the procedural rules for its application.
 e) Turn over to the Professional Ethics Tribunal the information regarding violations of the provisions of
this law and the one that regulates professional practice, as well as the Code of Ethics and regulations
from the Professional Council of Economic Sciences in which the professionals were charged.
enrolled.
f) Execute the disciplinary sanctions that are imposed, once they are final.
debt certificates issued by the Board of Directors in concept of fines, exercise rights
Professional fees, registration fees, surcharges, and legal expenses due to violation of the Code of Ethics will constitute a title.
sufficient executive to initiate its collection through enforcement.
g) Grant the general or special powers that are necessary for the fulfillment of the purposes and
defense of the rights of the Professional Council of Economic Sciences.
h) Arrange for the publication, in the Official Bulletin and by other means, of the resolutions deemed appropriate.
relevant.
i) Approve the Balance Sheet, Income Statement, Report, and all other documentation that
correspond.
j) Seek to achieve the remaining objectives that have been or may be entrusted to the Professional Council
of Economic Sciences.

3.4. Disciplinary and legal sanctions

3.4.1. Operation of the Professional Ethics Tribunal and the Code of Ethics of the C.P.C.E.C.A.B.A.(38)
Any act that we carry out daily from a personal perspective must be performed with
finished and total responsibility.
Therefore, the exercise of a profession may be liable for compensation to a third party as
consequence of a poor performance of the same, in a culpable or negligent manner.
In the scope of our profession, specifically related to the professional practice of public accountant,
as a consequence of the development of this activity, whether in a dependent or independent form, the
the same will be subject to legal sanctions (civil and criminal) and disciplinary sanctions (ethical) for the wrongdoing
performance of their task, in addition to the one that corresponds to them from the labor point of view (legal sanction) in the case
to develop it in a dependent relationship.
When we talk about assigning responsibilities, we must say that their degree in participation in
The beginning of a crime shall be determined, in the first case, in the judicial courts, and in the second
supposedly, it will be in the field of professional councils, through their disciplinary tribunals, who
they will evaluate each circumstance.

Thus, theArticle 27of thelaw 466determine that they will be subject to disciplinary sanctions:
a) The acts or omissions committed by the graduates registered in the registry that constitute
violation of the duties inherent to the state or professional practice in accordance with the
provisions of the Code of Ethics.
b) The removal from the position held in any of the bodies mentioned in article 4 of this document
law.
The very preamble of the Code of Ethics establishes that its purpose is to state the norms and principles.
Ethics that should inspire the behavior and activity of those registered. 'They constitute the necessary guide for the
compliance with the obligations contracted with the educational institution from which they graduated, with the profession,
with their colleagues, with whom they require their services and with third parties.

In light of the responsibilities of professionals and their obligations, they must undertake the greatest
efforts to continuously improve its suitability and quality, contributing to the progress and prestige of the
profession.
 It expressly determines that the absence of an express provision should not be interpreted as an admission.
of acts or practices incompatible with the validity of the enunciated principles, nor to consider that
provide impunity, but rather conduct oneself in a manner that is consistent with the spirit of the code.
Article 1 establishes that these norms apply to all registered professionals in the
C.P.C.E.C.A.B.A., whether exercised in dependence or independently, and to the
registered in the special registry of non-graduates.
General common rule, before enumerating specific situations that must be observed.
In professional practice, it indicates in its article 4 that it constitutes an ethical violation:

The acceptance or accumulation of positions, functions, tasks, or matters that are materially
impossible to attend.
As an assistant to justice, causing delays in the administration of justice, except under circumstances
duly justified before the respective court.
Articles 5 to 22 establish certain guidelines for behavior or professional interaction that must
to take into account, namely:

Documentation Every opinion, certification, report, ruling, etc., must be expressed clearly, precisely, objectively,
emanation of complete and in accordance with the rules established by the council.
professional The responsibility for the documentation signed by professionals is personal and non-transferable.
(article 5) even if they require the involvement of collaborators.

Solidarity
Professionals should always conduct themselves with full awareness of feeling and solidarity.
cooperation
professional, in a way that promotes cooperation and good relations among the members
professional
of the profession.
(art. 6th)

Charges against
The formulation of charges against other professionals must be done in good faith and can only be inspired by
other professionals
in the zeal for the maintenance of probity and professional honor.
(art. 7)

Acts against good Professionals must refrain from advising or intervening when their professional conduct
third-party certification allows, shelters, or facilitates incorrect acts, can be used to confuse or surprise good faith
(art. 8) by third parties, to be used in a manner contrary to the general interest or to violate the law.

Service interruption
Professional services should not be interrupted without informing those who are relevant.
professionals reasonable notice, except in cases of force majeure.
(article 9)

Documentation
from the client Documents or books belonging to your clients should not be retained.
(art. 10)

Performance in institutes They must refrain from acting in educational institutions that carry out activities through
of teaching misleading propaganda or incorrect procedures, or that issue titles or certificates that may
(art. 11) to confuse with the qualifying professional diplomas.

Exercise of the profession

through intermediaries
Allow another person to exercise the profession in your name or facilitate someone to act as
professional without being one.
(art. 12)

Announcement of titles and

The titles and designations of positions of the council or other entities of the profession may be
designations
statements only as a relation of background or acting on behalf of them.
Article 13

Managers
The involvement of agents for obtaining professional jobs should neither be used nor accepted.
(art. 14)

Clients of other colleagues Should not try to attract the clients of a colleague, using resources, acts, or practices for this purpose.
(art. 15) at odds with the spirit of this code.

Associations of
The associations among professionals, established to carry out professional activities, must
professionals
to dedicate themselves, as such, exclusively to such activities.
(art. 16)
 It constitutes a violation of the duties inherent to the professional state, and consequently, it is considered
Economic crimes
violation of this code, having been judicially convicted of a crime
(art. 17)
economic.

Advertising The offering of professional services must be done with moderation and respect for decorum.
(art. 18) profession.

The relationship between professionals and their clients must develop within the utmost confidentiality.
Professional secrecy
The former must not disclose knowledge acquired as a result of their work with her. They are
(arts. 19 and 20)
released from this obligation only in their defense.

For the determination of fees, the nature and importance of the

Fees work, the time consumed, the responsibility involved, and the current legal provisions.
(articles 21 and 22) They should not give or accept commissions or participations of any kind, except for those that correspond.
to work done together.

Likewise, articles 23 to 25 logically enumerate a series of incompatibilities and

abstentions, such as, for example:
1. When professionals in the performance of public or private activities have intervened
deciding or informing about a certain issue, they should not then provide their services to the other
It will last until 2 years have passed since the end of their performance, unless there is no opposition.
2. They should not professionally intervene in companies that operate in competition with those in which they ...
that they have their own interest as entrepreneurs.
3. No opinions should be issued: when they are owners, partners, directors, or administrators of the
society, of the entity or linked entities; when there is a relationship of dependency; when it is
spouse, relatives by blood in a direct line, collateral relatives up to the fourth degree
inclusive, and those related within the second degree; when they have economic interests, etc.

3.4.2. Disciplinary sanctions

The disciplinary responsibility of the public accountant, which arises as a consequence of their practice.
regulated professional by theLaw 20.488, is subject to the rules set forth by the Code of Ethics
dictated by the professional councils of each jurisdiction.
Specifically with regard to the area of the Autonomous City of Buenos Aires, thelaw 466what
regulates the Professional Council of Economic Sciences of the Autonomous City of Buenos Aires
(C.P.C.E.C.A.B.A.) determines in its title II, 'On the disciplinary regime and disciplinary tribunal' (arts. 27 to 36),
the respective regulations.
Thus it determines that the acts or omissions committed by the registered will be subject to sanctions.
disciplinary actions when they have violated the duties inherent to the professional practice according to
provided by the Code of Ethics.
There are five types of sanctions provided:
1. Warning;
2. Private reprimand;
3. Public warning;
Suspension from the practice of the profession for 1 month to 1 year;
5. Cancellation of enrollment.
All sanctions imposed by the Professional Ethics Tribunal are appealable by the interested parties.
before the Governing Council. The appeal must be submitted, through a substantiated written document, within fifteen
business days of the notification. The Board of Directors may take measures for better provision and, upon request
to the interested parties, grant them the opportunity to expand their argument.
 Decisions imposing firm disciplinary sanctions can be challenged through direct appeal.
before the Court of Appeals in Administrative and Tax Controversies of the City of Buenos Aires
according to the provisions of theart. 5°of thelaw 2435(B.O. 8/10/07—CBA).

According to Article 1 of the Code of Ethics, its norms apply to all professionals.
registered in the council, by virtue of their professional status and in the practice of their profession, whether in person
independent or in a dependent relationship.
Article 4 explicitly states that professionals must attend to the matters assigned to them.
entrusted with diligence, competence, and genuine concern for legitimate interests, whether of
the entities or persons to whom they are entrusted, such as third parties in general. It constitutes a lack of ethics the
acceptance or accumulation of positions, functions, tasks, or matters that are materially impossible for them
to serve.
Finally, establishes as a lack of ethics in the performance as an assistant to justice any delays in the
administration of justice, except for circumstances duly justified before the respective court.
The violations described by the Code of Ethics expire 5 years after the event occurs.

3.4.3. Legal sanctions

In principle, the legal norms that aim to establish the level of participation of a
professionals take into account their role as a certified accountant, advisor, corporate syndic or syndic
bankruptcy
From the point of view of civil liability, we can say that the norms of the Civil Code
generally establish that the professional shall be liable for the damages and losses caused by their work,
could cause a client, when acting with negligence, bad faith, or dishonesty. This responsibility
it is caused by the non-fulfillment of its obligation, which can be to give, to do, or not to do.
Unlike criminal actions, the claim for damages in civil jurisdiction must be
formulated by the affected party themselves, since those courts do not act ex officio.
Thearts. 296y297from theLaw 19,550Commercial Companies establish specifically that: "The
trustees are jointly and severally liable for the failure to comply with the obligations imposed on them
They impose the law, the statute, and the regulation. Their responsibility will be made effective by decision of the assembly.
The assembly's decision declaring responsibility involves the removal of the trustee. [...] They are also
jointly responsible with the directors for their actions or omissions when the damage is not
would have produced if they had acted in accordance with what is established in the law, statute, regulation or
assembly decisions.
Regarding criminal responsibility, it operates independently of the claim made by
damages and losses be incurred in the civil sphere.
It is the State itself, through the prosecutors, that acts on its own initiative and drives the case, as society
as a whole is what is harmed by the commission of the possible crime.
The professional should have acted with intent or negligence. In the first case, the professional should have acted knowingly;
He knew the result that his performance produced. In contrast, the performance carried out in a guilty manner is.
negligent or imprudent.
In order for a conduct to be punishable criminally, there must be an action, it must be explicitly
marked as a crime in the Penal Code and action must be taken with culpability.
Among the main articles of the Penal Code, we can point out:
Article 156: violation of professional secrecy. Subject to a fine and disqualification of 6 months.
3 years.
Article 172: fraud through deception and abuse of trust. The public accountant is liable in their
quality of syndic, external auditor, and as consultant. Penalty: 6 months to 8 years in prison.
Article 277: concealment. It shall be punished with imprisonment from six (6) months to three years for the cases.
of cover-up.
 Article 300, paragraph 3: false balance or report. It is attributable to the public accountant in their capacity as trustee, not
neither as an external auditor nor as an advisor. Penalty: 6 months to 2 years of imprisonment.

Art. 301: illegal or anti-statutory acts in society or other legal entities. Penalty: 6 months to
2 years in prison.
Likewise, the tax criminal law (24.769) in its article 15 establishes that:
He who knowingly dictates, informs, gives faith, authorizes or certifies legal acts, balances, states
accounting or documentation to facilitate the commission of the crimes provided for in this law will also be subject to
penalties corresponding to their criminal participation in the act, for the penalty of special disqualification for double the
time of the sentence.
Regarding the labor responsibility arising from your dependent relationship, it arises
from what is stipulated by the labor contract law and exclusively in this context in relation to their
employer.
Thearts. 83 a89of theLaw 20.744 they point out the duties of diligence, collaboration, and loyalty that the
As a professional, the worker must observe in their task. It is established that "the worker is responsible
before the employer for damages caused to their interests, due to deceit or gross negligence in the exercise of
its functions.

3.5. Professional Fees

The professional fees of graduates in economic sciences were sanctioned by the decree-
Law 16.638/57, validated by law 14.467/58 at the national level and which has been in force since then.
without any updates.
When talking about tariffs as a synonym for fees, it refers to the practice of the profession in
independent form, since if exercised in a dependent manner, the salary or remuneration received by the
The professional will be at least as established by the respective collective labor agreement of the activity.
what it is about.
The mentioned decree-law has become completely outdated due to inflationary effects, for which
the corresponding corrective indices must be applied.
According to what we have seen in point 3.2, regarding the evolution of the profession, the standard does not
regulates the fees corresponding to holders of degrees in administration and economics, as these
professions were incorporated and regulated starting in 1973.

In the judicial regulations, they have completely lost validity and are subject to the task performed.
regulated by the respective court.
Its spirit is to establish a minimum fee, as article 2 indicates that the tariff applies to the
independent professional relationships only and that professionals can freely agree
fees higher than those established according to the nature and importance of the tasks performed.
Indicate guidelines on the matter:

Commercial and administrative;

Tax
Actuarial.
In commercial and administrative matters, it establishes a minimum fee as a certain scale.
what must be taken into account, such as the sum of total assets plus liabilities to third parties, for the
certification of financial statements of civil, commercial or industrial companies, whatever their objective or
purpose (art. 13).
If it is an audit with an annual certification of the balance sheet and its corresponding account of
results, for example, the minimum fee will triple from that determined according to the previous paragraph (art. 13).
It also establishes minimum fees for other professional tasks, such as incorporation or
transformation of companies, due to liquidation, dissolution or merger of companies, for the studies
financial economics and for coastal audits.
 In tax matters, the minimum fee is determined based on the professional's involvement in
the settlements of the different taxes, which will be reduced by 50% when executed together
with the audit.
Finally, in judicial matters, it establishes a distinction regarding the expert reports being conducted in
ordinary, special, summary, and universal trials, dealing with requests and certifications of measures
precautionary measures, or in bankruptcy proceedings and creditor meetings.
Starting from decree 2284/91 enacted by the National Executive Power, concerning economic deregulation,
establish articles 8 and 11:
Nullify public order statements established regarding rates, scales, or tariffs that set
fees: commissions or any form of remuneration for professional services not covered by legislation
labor or in collective labor agreements, in any kind of activity, including asset markets
financial or other titles, established, approved or recognized by laws, decrees or resolutions. [...] None
public entity to private cannot prevent, hinder or obstruct, directly or indirectly, the free hiring of
fees, commissions or any form of remuneration for professional services, not covered by the legislation
labor or in collective labor agreements, for the provision of services of any activity, when the parties
They wish to depart from the current scales.
Although the Council has issued Resolutions 226/74, 262/78, 23/82, 91/86, and 129/88, they have been
recommended to the enrolled for their application in the various fields of action except for
the judicial matter.
The latest projects had incorporated, as a necessity of the moments in which they were approved,
a permanent update mechanism on a quarterly basis and in accordance with the evolution of the indices
wholesale price levels published by INDEC.
The current economic situation, which has eliminated indexation clauses, automatically triggered
the cessation of the application of the mentioned update.

3.6. Legalization of signatures

The C.P.C.E.C.A.B.A., through resolution 236/88 and amendments, establishes a regulation on the use and
certification or authentication of signatures and formal control of professional actions, with the purpose of
protect the public interest from the effects of the illegal practice of the profession and the issuance of reports
incomplete or defective professionals.
In its Article 1, it establishes verbatim, regarding the use of the signature by the registered member, that it
must
a) be holographic, indelible, and correspond to what is registered in the relevant registry;
b) to be followed by its clarification, which must indicate:

first and last name of the professional;

professional title and university that issued it;
registration volume and folio in the corresponding registry (or if applicable, registration number in the
Special Registry of Non-Graduates
If the signature is made on behalf of a professional society, the status of the signer as a partner, and the
book and folio of said society in the Registry of Professional University Associations.
Among other regulated guidelines to consider, it sets requirements related to: the professional
(enrolled, free of disciplinary sanctions and with the payment of their professional practice fee up to date);
that the task performed is of professional concern; that the report is written in an indelible manner without
tearing, amendments or interlineations, expressed in Spanish and maintaining appropriate style.
It should also contain a title that indicates that it is a professional report identifying the
documents on which information is provided, the scope of the task, and an express statement of their opinion,
abstention or certification, expressing the amounts, owed or not, to the National Social Security Directorate and
refer to the way they are carried by accounting records.
Lastly, the recipient, the place, and the date of issue of the respective report must not be missing.
3.7. Professional practice control
Through Res. CD 63/2012, the C.P.C.E.C.A.B.A. on 07/18/12, was created within the structure
administrative of the Council, a Sector called: 'Professional Practice Control', which will be responsible for
the verification of the working papers that support the professional task related to the issuance of
reports and certifications on financial statements and any other documentation that is submitted for its
legalization before the Professional Council.
According to the aforementioned regulation, the verification will be exclusively focused on the existence of the
working papers and the reasonableness of their content, taking into account the particularities of the entity
audited. It will not mean in any way the approval of the fulfilled professional services, considering
this is not the responsibility of this Professional Council.
It will conclude with a report from the Professional Exercise Control Sector that will only state
that no observations have emerged in the review or, conversely, that it is recommended to transfer it to
Professional Ethics Tribunal.
The 'Professional Practice Control' Sector will have functional dependence on the Management of Affairs.
Legal and will be integrated by officials Public Accountants specialized in Auditing, with a
minimum seniority of 5 (five) years of enrollment, who must maintain absolute confidentiality
Reservation of all actions taken.

Such actions, as established by the same standard, may originate in the Legalizations Sector or
in the Professional Surveillance Sector.
The control can be carried out at the Council's offices for the purpose of providing the working papers or,
if the professional clearly expresses their will, the verification may take place in their
Professional Study.
After the verification is completed, a report must be issued, as a result of which it will be possible to:
resolve the file of the proceedings or elevate the proceedings to the Secretary of the Council, with a recommendation for its
appeal to the Professional Ethics Tribunal.
See table on the next page
CHAPTER II

JUDICIAL ORGANIZATION

Camilo Rascado Fernández

1. CONCEPTS ABOUT JURISDICTION AND COMPETENCE

1.1. Rights and actions

The person—a comprehensive concept of the biological entity, as well as of those of ideal existence—is a center
of the attribution of rights, whose source can result from both law, custom, and doctrine.
of the publicists (doctrinaires) or of the judges (jurisprudence).
Now, the means available to exercise these rights are the actions, being a concept
less comprehensive than that one, since rights may exist but there are no actions; a situation that does not occur in
reverse sense, that is, actions cannot exist without a right that supports them.
 A typical example of rights that do not have actions is constituted by natural obligations; the
that they are owed but cannot be demanded.

1.1.1. Types of processes

1.1.1.1. Devices
The concept of actions as a means to claim rights brings with it other related concepts.
important when attending to your exercise. There is a common brocard that expresses: 'the interest
it is the measure of the action," which means that under the concept of the device of exercising actions, the
the subject owns them and chooses to exercise them or not; which includes their withdrawal or abandonment.
Most estate content procedures are based on that premise.
Let's suppose that a person fulfilled their obligation under a contract, on the other hand their
the counterpart did not do it. As a consequence, it is primarily entitled to the unfulfilled performance,
however, it can, freely disposing of the action, not claim anything.
Another example: a worker is dismissed without invoking just cause, a situation that leaves him
expedited the path to claim compensation in accordance with the stipulations established in the law of
current fund, that is, the Labor Contract Law; however, it freely disposes of said action and
decide not to exercise it.

1.1.1.2. Inquisitive
There are some important limitations to this principle, which are characteristic of inquisitorial processes.
in which it is totally prohibited to dispose of the shares freely.
Typical results of the latter are criminal proceedings, as the interest is compromised.
public, a situation that prevents negotiating them. Moreover, one of the characteristics of the system
it is penal because it does not accommodate the principle of opportunity inherent in private actions,
enabling the system to operate ex officio upon knowledge of the criminal act.
Let's suppose that a person walking freely on a city sidewalk was hit by the
driver of a vehicle who did not respect any traffic rules. As a result, the victim
suffered injuries that left permanent consequences on his health.
The pedestrian has the right to compensation for the damages caused by the driver's conduct.
he caused; he can sue this one, summon his insurance company to guarantee and even, if he wishes to,
not to take any action aimed at obtaining the aforementioned compensation.
Now, what the pedestrian cannot dispose of is the legal action that the State has against the
conductor, because the legal good protected is not the repair of the damage but to sanction the behavior
unlawful conduct of the driver for disturbing the social order. In this case, the proceeding is not private but rather
exercised ex officio by the Judiciary. As can be seen in the tested example, both types are present.
of processes: the devices and the inquisitive.
Also in those of a patrimonial nature, as an exception, there are public order regulations that
they hinder the smooth and straightforward disposition, typical of some accidents that occurred within relationships
labor issues, as well as certain family disputes. The same occurs with certain crimes in
criminal matter where the instance is private, but the action is always public. An example of the aforementioned is
it constitutes the crime of rape because public order preserves the modesty of women, granting her the
possibility of instigating or not the action that arises from the crime. It should be clear that once the instigation is exercised, the
The action is public and exercised by the State. Except for these and a few other cases, the rest of the criminal offenses
they are of public instance and public action.
At this point, it is worth noting that the Argentine penal system generally responds to a model
mixed accusatory, that is, one that combines inquisitorial aspects (purely investigative criminal prosecution,
reserved and written), with typical elements of the accusatory system (oral, public, and contradictory debate).
Apart from the academic detail, the distinction made in previous paragraphs (inquisitorial device)
constitutes a directly functional educational copyright license aimed at marking a contrast in the exercise of the
action.
Substantive and procedural laws
In general, except for some exceptions found in substantive laws,
actions are found in the laws of procedural nature (Procedural Codes or Procedures), which
they constitute laws of form or adjectival.
In Argentina, a representative, republican, and federal form of government has been adopted, and this last
determines the coexistence of a dual system: on one hand, federal justice and, on the other, justice
ordinary or common organized by each of the local jurisdictions(1). According to that, the laws of
laws are in effect throughout the Republic; examples: the Civil and Commercial Code, the Penal Code,
Customs Code, the Labor Contract Law, etc. On the other hand, due to the federal organization of the Nation,
The provinces enact their own local laws regarding formal or procedural (adjective) matters.
The Penal Code is national, but the Code of Criminal Procedure is local to each province.
The same applies to procedural laws pertaining to labor matters and those related to
civil or commercial matters.

2. THE POWER OF THE STATE

2.1. Jurisdiction
The National Constitution of the Argentine Republic, regarding the organization of the State, has
received the idea that had flashes in Aristotle and John Locke culminating with the thought of
Montesquieu, this is the basic conception of the concept of republic based on the division of powers,
Although with greater precision, it is more appropriate to speak of the division of functions, since power is typical, unique.
indivisible of the State.
These powers, according to the distribution made by the National Constitution, are exercised through three bodies.
or spheres of power: The Executive, the Legislative, and the Judicial. All have powers that are their own and
others that involve shared cooperation.
According to this model, the legislative, executive, and judicial branches carry out the functions of production of
legal norms, the execution of such norms, and the resolution of disputes, respectively.
In national matters (the Nation as such), the executive is unipersonal exercised by a citizen with the
position of President of the Nation. The legislative is a collegiate body made up of two Chambers, one of which with
representatives of the Provincial States (Senators) and the other by representatives of the people all
(Congressmembers). As the highest body of the so-called Judicial Power, there is the Supreme Court of
Justice, also collegial, and a series of courts subordinate to it.
Likewise, each of the Federal States (or Provinces) has a similar organization, but
they preserve the way they are organized.
By way of summary, it should be established that the doctrine agrees in placing the study of jurisdiction in the
context of the State, as one of the concomitant functions at its birth, which
characterized by the resolution of disputes by an impartial third party that is above the
conflicting parties.
Jurisdiction, that is, the power to administer justice, consists of the public authority to judge and make.
to execute what has been judged in a specific matter, a power that corresponds to the judges established by the
laws.
According to the aforementioned, it is undisputed that the only body that has the capacity to exercise the
jurisdiction is judicial. Although this is clearly evident, the vulgar use of the word allows it to be applied
inappropriate for other situations such as, for example, to indicate the boundaries of a police station, the
territorial scope of a tax, etc.
 This function of the State, that of exercising jurisdiction, is carried out through the Judicial Power, composed of
judges. In summary, jurisdiction is the ability to 'say the law' or to 'declare the law'; obviously,
as mentioned in other paragraphs when referring to conflicting interests, it is only justified when two
or more people invoke either the same right or part of it.
The Argentine justice system is much more comprehensive, as it is made up of the Judiciary.
of the Nation, the provincial judicial powers and that of the Autonomous City of Buenos Aires, the Ministry
Public Prosecutor's Office and the Public Defense Ministry. All of them together and in a coordinated manner.
they configure the operators of the justice service.

2.1.1. Attributes. The five Latinizations

Now, in practical terms, this means that the State in the exercise of jurisdictional function has
the attributions of 'notio', 'vocatio', 'coertio', 'juditio' and 'executio'. These five Latinized vocabulary terms,
they constitute the elements of that function, and are very useful when specifying each of the
sequences in which the Procedure can be divided (source of Procedural Law).
Accordingly, it responds to the concept of knowing, that is, the ability that the State has to
resolve conflicts between people (cf. article 116 and related articles of the National Constitution). In this sense
practical, whoever has to exercise an action that derives from a right they believe they have, accesses the
jurisdiction whose service the State provides through the administration of justice and demands the right
concluded or disturbed, that is to say, it constitutes itself as actor, plaintiff or claimant, and executor or complainant
according to the subject of your claim, aspects that will be the subject of analysis when it comes to addressing the topics
of procedural law.
Such faculty inherently carries its immediate consequence, namely, the power to summon (vocatio) to the
parts that submit to the jurisdiction of the judge.
In the same practical sense, the judge will summon that other involved person and the one to whom it is addressed.
claim of the actor that is now referred to as counterpart, defendant, accused, executed, indicted or
reported respectively.
That power of convening is linked or framed with coercion, which is the power that
the judge has the power to enforce compliance with the resolutions he adopts while the dispute is being processed,
just as to enforce it once the judge arrives at a sentence, that is, he has the use of violence
in an exclusive and exclusive way. It is the ring of Saturn that surrounds the rest of the powers.
The challenge to the summons will have various and varied effects depending on the type of process or act.
procedural in which it is exercised. In some cases, it will result in the loss of the ability to exercise certain
actions, for example if the defendant does not respond to the lawsuit and is declared rebellious. In others, it can arise
the case of summoning a reluctant witness by public force. The judge may also order the
forced appearance in cases involving the investigation of criminal offenses.
Lajuditio, also known as audicium, is the judge's faculty to arrive at a decisive resolution or
sentence (definitively what he feels). It is to reach the final outcome or solution of the conflict, which leads to
use of the execution power, that is, to enforce the judgment; for example, ordering garnishments,
kidnappings and auctions of goods or the freedom of individuals.
Pretending to formulate a synthesis that interrelates what has been presented regarding the five elements that
the concept of jurisdiction can be outlined with the following scheme:
Elements:
1st) NOTIO (know)
call
3rd) JUDGMENT (sentence)
4º) EXECUTIO (ejecución) - COERCIO (coacción)
According to the above, the course of the elements previously described results in a sequential manner in
the judicial processes and those parallel to those applied to the other powers. In fact, as can be
coercion is closely linked to the powers of convening and execution
the ruling, proving futile for the exercise of the other powers.
2.2. Competition
It is the measure within which the referred jurisdictional power of the State is distributed among the
various courts and judges for various reasons that will be the subject of discussion in the following paragraphs
exhibition.
It is often said that the measure or limit of jurisdiction is granted by competence. This means that the
The organization of the judicial function is composed of the set of Courts established on the basis of
different levels of specialties, hierarchies, and territorial location to address the established conflicts
among people.
In summary, the relationship between jurisdiction and competence is one of genus and species.

Criteria for establishing competencea(2)

To initiate the lawsuit, the person who takes the action they consider appropriate to defend the right
concluded adopts the criterion of competence that it deems appropriate; subsequently the cause falls on a
court or tribunal of the jurisdiction selected by him.
Now, the judge himself or the counterpart may, depending on the case, make proposals and question the
selected competence, a situation that should lead to an initial preliminary decision
being able to result in the final outcome that the case is definitively lodged in that court or, by
on the contrary, it is resolved that said court is incompetent to continue with the proceedings.
It is worth noting that there are many issues of competition in the justice service, as in various
On occasions, beyond the distinctions that will be developed in later paragraphs, there exists a fluid boundary.
among the criteria expressed.

2.2.1. Subject
It is also known as objective competence, as the nature is used as a determining element.
of the claim invoked in the procedural object of the one who acts. The basis lies in the knowledge of
specific substantive law of the judge who will hear the dispute.
Accordingly, a court may become competent by reason of the subject matter (the topic) by virtue of laws.
national or local that organize judicial forums as knowledge niches in specializations
concrete.
These groupings are called fueros and are established by legal norms that create and/or them.
They modify. Thus, it is common for there to be Civil Jurisdictions, Commercial, Labor, Criminal,
Administrative Disputes, etc.
The creation of them will result from a multiplicity of factors, among which one cannot miss the
number of inhabitants existing in the geographic area under its jurisdiction. It is very common that
in very small districts there is a court with almost all competences: civil, commercial, labor,
of mining, etc., and even penal. On the contrary, in large populations each of these specialties
are included in specific jurisdictions.
In any case, the judicial organization is a purely situational issue that does not remain.
unaltered over time.
An example of this can be observed in Table No. 2 of the organization of justice, where there is a
Ad hoc (specific) court to address the investigation of the AMIA case, (acronym for the Mutual Association)
Argentine Israeli) which, although it is under federal jurisdiction, is located in the organizational chart
as belonging to the ordinary justice of crime. Indeed, as a result of the entirety of the
members of the Federal Court were subject to successive excuses and challenges, due to the
scandalous instruction that was substantiated within the scope of its competence, the Judicial Council
had to navigate ad hoc judges (specifically for that case) from the Ordinary Criminal Jurisdiction and
Correctional belonging to ordinary justice.
 Another example can be seen in the division of Federal Justice, where in some areas of the country a
The same federal judge has all the competencies, which are exercised through a secretariat for each one.
of the topics.

2.2.2. Territory
Another aspect of competition is territory, which, as its name indicates, addresses the aspects
geographical aspects of the conflict in which the actions are to be carried out. It means that knowledge of a
because the case is assigned to a judge who exercises their jurisdiction within the scope of a judicial district
delimited by a legal norm. It should be noted in this regard that the judicial districts do not correspond
necessarily with the departmental geopolitical division within each State. For example, the
The Judicial Department of Mar del Plata covers Balcarce, Gral. Alvarado, Gral. Pueyrredón, and Mar Chiquita.
what are independent political parties.
The various procedural codes, both national and provincial, as well as substantive codes establish
objective and sometimes optional guidelines. For example, the place where the disputed thing is located,
where the events took place, or where the legal act was celebrated, the domicile of one of the parties
participants in the process and at times, allows the extension of the competence, this stipulation is very
used in contractual matters.
These two examples serve: in the first of them, the parties entering into a contract can agree
that any divergence regarding compliance with the agreement will be submitted to certain courts,
displacing the original competition that would have corresponded to it. This extension even extends to
courts located abroad.
Another example can be found in labor claims, where the current National procedure is in the
Federal Capital leaves it to the discretion of the plaintiff, who is generally the worker, to file the action before
the judge of the workplace, the one at the place of the labor contract celebration, or the one at the domicile of
defendant, usually the company. In such a way that a worker who performs their labor services
in the branch located in the city of Avellaneda, but the company's registered office is in the Capital
Federal can file the lawsuit in this last city.

2.2.3. Degree
There is also jurisdiction based on the degree, which relates to the hierarchical order of the courts that
they must intervene. It is usual for the lawsuit to be carried out in a court of first instance so that later,
for reasons of the filing of appeals, proceed to process it in your appeal, that is, a second instance or
higher court (Chambers).
However, there are some disputes in which access to the jurisdictional function (specific to the Power)
Judicial), it is done directly in the appellate courts.
Example: the administrative resource before the Federal Administration of Public Revenue (AFIP), once
what is exhausted in that venue can be subject to appeal in court, being competent in form
directs the National Chamber of Appeals in Federal Administrative Litigation, which is a second
degree in the hierarchy of the law.
As previously stated, each of the Federal States (Provinces) reserves the
the authority to organize the Judiciary with jurisdiction within its territorial scope.
In this sense, and returning to the example of the worker who carries out their work activity at the branch.
that the company has in the city of Avellaneda (Province of Buenos Aires), which belongs territorially
to the Judicial Department of Lomas de Zamora, you can choose to file the lawsuit in the Federal Capital
(Nation), for the hypothetical case that the employer has legal domicile in the Autonomous City of Buenos Aires.
Aires.
If the claim is filed in the Province of Buenos Aires, the one drawn by lot will be competent.
among one of the three labor courts in Avellaneda. These courts are made up of three judges
each one is of unique instance and their appeal height is the Provincial Supreme Court.
 On the other hand, if the demand is brought in the scope of the Nation, that is, in the Federal Capital, it will be
competent the one who is drawn from among any of the eighty labor courts that exist in the
City of Buenos Aires. These courts consist of a single member and their appeal authority.
(to appeal), will be the one drawn among the ten rooms that make up the National Labor Court. One
Once the appeal has been substantiated in that court, it may exceptionally be appealed to the Supreme Court.
of the Nation's Justice.
As can be seen, the issues of degree, as well as the territorial ones, are in function.
directly from the organization that each State should undertake regarding the provision of justice services.
Notwithstanding this, it should be noted that the substantive or main right that the worker will invoke, in the
indicated example, will be the same Labor Contract Law; on the other hand, the codes or laws of
procedures, of an adjectival or formal nature, are reserved for each of the Provincial States
and their respective organizations.

2.2.4. Shift
Finally, there is competition based on the shift. It refers to the order (usually a draw) in which the
courts must intervene. For example, in the National Criminal Jurisdiction, shifts are organized by time.
calendar, that is to say, the periods are established in advance during which the cases will be assigned to each
court.
In all cases, the procedural rule prevails that in case of doubt, it is always competent.
the court that first intervened.
It is unnecessary to say at this point in time that the old bobbin winder no longer exists,
replaced by modern cybernetic systems.

2.2.5. Conclusions
All the aforementioned reasons for competition are complementary to each other; that is, one
The matter of criminal nature must be resolved before a first-instance criminal judge on duty.
was assigned according to the drawing rules of said jurisdiction of the province in which the territorial scope is
he committed the alleged crime. There is only one exception case that is delineated in the
Constitution and in specific laws enacted by the National Congress for certain relations
litigations in which, in general, the State, its officials, or certain types of crimes intervene. It is the
Federal justice that replaces local and ordinary justice throughout the territory of the Nation.
At this point, it is convenient to make a distinction between what is ordinary or extraordinary in matters of
judicial organization. The analysis will focus on the national order.
In fact, ordinary justice deals with the events that occur regularly, whereas with
exceptional character and because they are established by certain norms of positive law, there are others that
they have an extraordinary treatment.

3. ORGANIZATION AND ADMINISTRATION OF THE JUDICIARY

3.1. Ordinary and extraordinary

3.1.1. Regarding the materia(3)

 The first distinction refers to competence based on the subject matter.
On the national level, there is a Federal Jurisdiction which has authority over certain specific matters.
facts or crimes such as terrorism, drug trafficking, extortion kidnappings, etc., or when the National State,
Decentralized organisms or their officials are parties in the jurisdictional process.
This jurisdiction applies throughout the National territory with the particularity that the Procedure of the laws of
the form is national and not local as occurs with ordinary justice.
In other words, a crime that is committed in the Province of Chubut and is classified as such.
According to some National law regarding the jurisdiction of Federal justice, it will be investigated according to the Penal Code
and the National Code of Procedures (in form). On the contrary, if the crime committed in
Chubut is not under federal jurisdiction; it will be investigated in accordance with the Criminal Code (in substance) and the Code of
Procedures specific to the Province of Chubut (in form).
According to the distinctions previously mentioned, there exists Ordinary Justice and Federal Justice.
on one side the ordinary remedy and on the other the extraordinary remedy which will be the subject of analysis in the section
next.
As happens with ordinary justice (table No. 2), the federal one is also organized by
jurisdictions, since Federal Criminal Justice (crimes) is not the same as Federal Administrative Justice
Administrative (tax topics, etc.) (table No. 1).

3.1.2. In relation to the degree

The other distinction that should be made is that referring to competence in terms of degree.
At the national level, there are two and only two possible ordinary instances. The first and the second to the
which is reached from the last one through the recursive route (appeal resource, for example).
Only in extraordinary cases can a third degree be reached, the Supreme Court of Justice
of the Nation. What establishes the exceptionality is a series of circumstances that are reflected in
thelaw 48(of the nineteenth century) and all the concordant jurisprudence of the Court itself.
However, it is worth noting that this high court can be reached exceptionally by
other mechanisms: one is that in which it has the original competence established by the Constitution
National. This is the case of matters concerning ambassadors, ministers, and foreign consuls, and
in which any Province was part.
The other is that by which one can ordinarily appeal when the National State is a party, except
some exceptions regarding damage compensation.
An example can provide a better understanding of the topic.
The bombing of the Israeli Embassy has been investigated in the original instance by the Supreme Court of
National Justice for being involved in diplomatic matters; on the other hand, that of the AMIA, which is not a
the diplomatic corps but a civil entity, has been investigated by a first instance court in the
Federal Crime. The investigation is federal due to the type of crime (terrorism) and those who could be involved.
suspected (officials).
Trying to find some examples that allow coordinating the relationship between competencies in
reason of the subject and the degree, the following comparison can be cited.
A few years ago, in the Municipality of the Coast, specifically in the city of Pinamar, there were two
events that had a lot of media impact.
One of them was known as the Coppola case (Maradona's manager), who was accused of the
possession of narcotics for distribution purposes. The other was known as the Cabezas case, since
this journalist had been murdered under very special circumstances.
Both investigations were carried out in the Judicial Department of Dolores (Province of Buenos
Aires).
The first one investigated a type of crime that, due to a specific law, was within the jurisdiction of justice.
Federal, then the judge who intervened (Dr. Bernasconi, later convicted) was a Federal Criminal Judge and
Correctional.
 Subject: Established by the type of crime (drug trafficking). Federal Criminal Justice.
Territory: Province of Buenos Aires. Federal Judge based in the Judicial Department of Dolores.
Degree: First Instance. Then come the appellate courts.
Shift: Since there is only one federal judge in that locality, all cases will fall under that court.
On the other hand, in the second case, since the crime was common and specific to ordinary justice, the judge who
intervened was a Provincial Judge in Criminal and Correctional matters (Dr. Macchi).
Subject: Common Crime. Ordinary Justice in Criminal Matters.
Territory: Province of Buenos Aires. Criminal Judge based in the Judicial Department of Dolores.
Grade: First Instance. Then the appellate courts follow.
Shift: By draw among the various courts of the Department.
Repeating, although in a more schematic way, in the example of the worker who was performing
In a branch of the company, it can be observed that:
Competence by subject matter:
The topic is about Ordinary Justice and naturally labor-related, therefore in Avellaneda or in the Federal Capital.
The jurisdiction that intervenes is that of Labor.

Competence based on territory:

In this case, the legislation grants the worker the power to choose to file a lawsuit at the workplace or in
the address of the employer.
Competence by reason of the degree:
The demand in the Courts of the Province of Buenos Aires will be made by a labor collegiate court.
composed of three members of a single instance, that is, there is no Court of Appeal, only before the Supreme Court
Court of Justice of the Province. In contrast, in the Federal Capital, it will be done by a first-instance court.
instance in labor matters, where there is indeed a Court of Appeals.

Competence based on the shift:

In both cases, the case is drawn.
Taking into account what was stated in previous paragraphs, in the Federal Capital (national jurisdiction), in case
To intend to appeal to the Supreme Court of Justice of the Nation can only be done with character
extraordinary, and invoking very specific parameters that are established in thelaw 48and in the
jurisprudence of the Court itself.

3.2. The privileges

FEDERAL JUSTICE (OF EXCEPTION)
CRIMINAL JUSTICE PATRIMONIAL JUSTICE
Interrogative/mixed Slide
SUPREME COURT OF JUSTICE
7 (SEVEN) MINISTERS
CHAMBER OF
CRIMINAL CASSATION
4 rooms with 3 judges each
Criminal and Correctional Civil and Commercial
Federal Chamber divided into 2 rooms of 3 judges each Split chamber into 3 rooms of 3 judges each
12 First Instance Courts in Federal Capital with 2 secretaries
11 Courts of First Instance with 2 clerks each
c/u
Courts in the major cities of the Interior of the country with
6 Oral Courts of 3 judges each
Civil Secretariats
Courts in the major cities of the interior of the country with
penal secretariats, Chambers and Oral Courts
 Economic Penal Administrative Litigation
Court divided into 2 rooms with 3 judges each Capital Chamber divided into 5 rooms of 3 judges each
8 Economic Criminal Courts with 2 clerks each 12 first instance courts with 2 secretaries each
3 Tax Criminal Courts with 1 secretary each 6 Tax Enforcement Courts
Courts in the major cities of the interior of the country with
Civil chambers and tax execution secretariats
Social Security
4 Oral Economic and Tax Criminal Courts Split chamber into 3 rooms of 3 judges each
10 Trial Courts of 1st Instance with 2 secretaries each
Tax and Fiscal Execution
In 6 First Instance Courts with 1 secretary each

Table No. 1:
Federal justice has jurisdiction throughout the National territory, which includes the Federal Capital. Source: Website
Judicial Power of the Nation; suitable for the educational text by the author.

ORDINARY NATIONAL JUSTICE

CRIMINAL JUSTICE PATRIMONIAL JUSTICE
Interrogative/mixed Slide
SUPREME COURT OF JUSTICE
7 (SEVEN) MINISTERS
CHAMBER OF
CRIMINAL CASSATION
Criminal/Correctional Commercial
Split chamber into 5 rooms of 3 judges each. Ad hoc room AMIA Split chamber in 6 rooms of 3 judges each
49 First Instance Courts of Instruction in general. With 1 secretary each 26 First Instance Courts with 2 secretaries each
14 Correctional First Instance Courts with 2 secretaries each Civil
7 Juvenile Courts with 3 secretaries each Split chamber in 13 rooms of 3 judges each
3 Oral Courts for minors with 3 judges each 110 Courts of First Instance with 1 secretary each
30 Oral Criminal Courts Work
5 Criminal Execution Courts Court divided into 10 rooms with 3 judges each
80 Courts of First Instance with 1 secretary each

Table No. 2:
The Ordinary National Justice has jurisdiction in the Federal Capital (and in those that were National territories before
become Provinces.
In the Federal Capital, it has jurisdiction in the Courts that have not yet been transferred to the Autonomous City of
Buenos Aires. Source: Website of the National Judiciary, adapted to the educational text by the author.

JUSTICE OF THE
AUTONOMOUS CITY OF BUENOS AIRES
CRIMINAL JUSTICE PROPERTY JUSTICE
Interrogative/mixed Slide
SUPERIOR COURT OF JUSTICE
5 (FIVE) MINISTERS
Contentious Administrative and
Tax
Some offenses from the Penal Code that were previously under the jurisdiction of Correctional, plus the
Room divided into 2 rooms of 3
own offenses
judges each
15 Courts of First Instance
Criminal, Contraventional and Offences
Appeals Court divided into 3 chambers of 3 judges each
31 First Instance Courts

Table No. 3
The justice system of the Autonomous City of Buenos Aires has the competence that was transferred to it by the National Justice.
on the occasion of the creation as an Autonomous State. In this sense, some crimes that were previously were transferred to it.
competence of the Nation and on matters concerning the forced collection of local taxes that previously fell under
competence of the National Civil Justice. Notwithstanding this, it also has original jurisdiction regarding...
local violations. Source: construction prepared by the author based on current regulations.

The first major division that can be observed in the paintings is that which distinguishes between the processes
in which the inquisitive aspect is installed, of those in which the determining factor is the
device.
Indeed, the first of them heads all those jurisdictions of a penal nature both in the field
National, in its version of ordinary justice as well as federal justice, and in the local scope of the city.
The second, on the other hand, leads the type of patrimonial justice that also resides in the Nation, with its
two versions, as in the City respectively. The expression "heritage type" is an authorial license
for strictly educational purposes, as it does not participate in conventional rankings.
In the West, the legal tradition has established two systems in which law unfolds.
One, which is characteristic of countries with Anglo-Saxon culture, is called "common law," whose foundation
The concept is 'vertical stare decisis,' which is an institute that consists of adhering to what has been decided by precedents.
previous ones that become mandatory. The other system that comes from the so-called law
European continental
Argentina and unfolds having as its main axis the cult to the law, resulting fertile for its application
of the deductive method in contrast to the other system of much more empirical content.

3.2.1. Cuts
In the exposed graph (table No. 1), the Supreme Court of Justice is positioned as the highest body.
Nation (CSJN) whose rulings are not binding. This means that its sentences are only of
mandatory execution for the specific case in which it was issued.
Indeed, article 116 of the current wording of the National Constitution limits the competence of the
Cut to the causes in which they intervene. But it also arises from countless rulings of the highest court that
In the same vein, it is pronounced. To cite one, the Court in the case "Cerámica San Lorenzo S.A."(4), se
...because although the Supreme Court only decides in the proceedings
concrete cases that are subjected to them, and their ruling is not binding for similar cases, lower judges
they have the duty to conform their decisions to those...
In the case 'Miguel Barretta'(5)he said that "it is advisable that the pronouncements of this Court be
properly considered and consequently followed in subsequent cases, in order to preserve the
legal certainty that results from providing a clear guide for the behavior of individuals.
The aforementioned finds exceptions in cases where the legislation determines that the
Rulings of the Supreme Court of Justice are mandatory for all cases, such as during the validity of thelaw
24.463then repealed by law 26.025, which established the binding nature of the Court's jurisprudence in
social security matters for lower courts.
From the set of rulings issued by the highest court, it is established that the value of precedents has
for lower judges the value of exemplarity.(6)
Lower magistrates may align themselves within the contents of such rulings, as well as that
they could also withdraw when a decision offers new grounds not considered in those.
Similar considerations can be applied to the rulings issued by the Supreme Court of
Justice of the Autonomous City of Buenos Aires (TSJ). However, it is worth noting that the Constitution of the
The Autonomous City of Buenos Aires establishes a very unique mechanism for the case in which the Court
on the unconstitutionality regarding the content of any regulation issued by the city.
On the other hand, the Supreme Court of Justice of the Province of Buenos Aires (SCBA) differs in form.
substantial with that of the Nation, since the Buenos Aires legislator authorized the highest court to formulate
legal doctrines(7)and thereby imposing the obligation of its decisions on lower judges and in this
meaning, beyond the progress of legislation on the Provincial Constitution, the Court never issued a ruling
about such overreach.
These legal doctrines are included in Articles 278, 279, and the following of the Code.
Civil and Commercial Procedure of the Province. In summary, through this mechanism a control is established.
casatory (from French); whose meaning corresponds to the idea of the obligatoriness of its rulings for cases
analogous by the lower courts.

Plenary Sessions
Following the development of Table No. 1, at a level below the Supreme Court, is the Chamber of
Criminal Cassation.

As its name indicates, it only covers the area that corresponds to the concept of criminal justice service, not
existing a similar one in the judicial organization of the Autonomous City of Buenos Aires; yes instead in
that which corresponds to the Province of Buenos Aires.
This instance was conceived by the legislator with the clear intention of achieving a certain uniformity in
the application of jurisprudence. It sought the unification of the application of criminal laws and
procedural. Consequently, it established that this Chamber can only review the manner in which it
they interpreted and applied criminal and procedural laws. This simply means that it could not
focus on the study of the evidence regarding the facts presented in the caseo.(8)
At this point in the analysis, it is appropriate to point out that the judicial process in general, as such, is supplied
of two basic elements: facts and rights.
The justice system is organized on the basis that the judge, as he was unrelated to the ...
events that gave rise to the conflict, is unaware of the facts that are precisely, on the side of the
parts, the core of the controversy. Immediately after, once the judge has certainty about the facts
tested applies the law that it deems appropriate for the resolution of the conflict. Hence, it is known that the
The judge knows the rights but not the facts.
On the other hand, it is useful to point out that under the extremes of Article 15 of the Civil Code, judges cannot
stop judging under the pretext of silence, darkness, or insufficiency of the laws.
In summary, in events such as those mentioned, the case must be resolved under the understanding
of analogous laws or by the general principles of law (cf. art. 16, Civil Code). However, it is possible
highlight that this mandate arising from the Civil Code regulates all processes of patrimonial content
typical of private law, it is null if applied in criminal law, since this branch of law
governs with other principles of restrictive application, since if a crime is not previously typified it does not
It can be resolved analogically by the typical penal action of another similar one.
Precisely, in the search for certainty about the facts presented, is that he seeks assistance.
of experts, witnesses, and other means of evidence.
Article 456 of the National Code of Criminal Procedure established the appeal of Cassation, situation
this led to the creation and incorporation into the national judicial organization chart of the respective Chamber.

Despite the arguments presented in previous paragraphs, the National Court established that in the
called 'CASAL' ruling(9), those that relate to the evidence must also be subject to the appeal.
from the fact, with the only limitation of those that are related to immediacy. For this, it was based
that every convicted person has the right to appeal the sentence for a higher court to review the
fundamentals of the ruling.
As can be seen in tables No. 1 and No. 2, if this were not the case, the Oral Court that issues the sentence does not
it would have ordinary appeal as other jurisdictions do. The ruling 'Casal' was obtained thanks to the appeal
extraordinary before the Supreme Court of Justice of the Nation. It should be noted that the indicated chambers in
The reports are exclusive to the Instruction Courts.
In this ruling, the Court pointed out that article 456 does not limit the scope of the appeal to analysis only.
of rights, expressing that the rule had been interpreted restrictively, violating express
indications of the San José Pact of Costa Rica and the Pact of Civil and Political Rights. For these purposes,
It is useful to mention that international treaties have constitutional hierarchy.
In summary, what these agreements postulate is what is doctrinally referred to as 'double conformity'.
a guarantee that could never be verified, as the cassation bodies limited their intervention to
examine the rights, setting aside the facts, which prevented a comprehensive review.(10)
 Therefore, the Court did not declare the unconstitutionality of the norm but established what the criterion is with
that must be interpreted and applied, that is to say including the subject of the evidence of the facts, what
constitutes a comprehensive review of the ruling issued.
In previous paragraphs, mention was made of the limit of the evidence linked to immediacy.on(11). It refers to
specifically to the testimonial evidence collected during the oral debate, and therefore acquired by the
tribunal, since in this type of processes, although the secretary collects the most important statements of the
witnesses and records them in minutes (not in shorthand), this cannot substitute the perception of the judges in
As for the speaker's exposure, since verbal expressions, according to neurolinguistic studies,
they are always accompanied by other modes of communication, which allows for the analysis of the meaning of the
statements outside the universe of words, allowing under the standards of logic and experience
a better assessment.
By way of synthesis, based on the aforementioned ruling "Casal", the Chambers of Cassation resolve the
resources that are subjected to it in an integrated manner, that is, about the facts and rights that have been
object of the oral procedure in the prior instance.
The cassation remedy in the Province of Buenos Aires faced similar vicissitudes since its creation to
through article 448 of the Criminal Procedure Code of the Provincea(12), and just as it was legislated in the Nation, it
establishes that this fundamentally occurs in cases of non-compliance or erroneous application of the law
substantive, or serious procedural defects, that is, it constitutes a recourse only
legal, and unrelated to the factss(13)(14).
However, there are already some rulings that have begun to address the issue of the facts,
recognizing the breadth in the examination of the resource, modifying the original criterion through this channelo.(15)
Plenary sessions
The plenaries are issued by the chambers of the different jurisdictions, and their purpose is to unify the
jurisprudence and avoid contradictory judgments.
The legal source for the existence of this type of sentences is found in the various organic laws or
codes of procedures. Thus, the Civil and Commercial Procedure Code of the Nation establishes it in
Article 303 and related articles; the Code of Criminal Procedure of the Nation in Article 4, the Province
from Buenos Aires in Article 37 of the Organic Law of the Judiciary(law 5827) and in the scope of the City
Autonomous City of Buenos Aires, in article 252 of the Administrative and Tax Controversy Code.
As long as a new plenary ruling is not agreed upon, its provisions are mandatory for the courts.
inferior courts that belong to the jurisdiction. In the case of the Province of Buenos Aires, they are for the same jurisdiction.
from the judicial department in which it was issued. In this sense, it is useful to mention, once again, that the
The province, due to its vast territory, is divided into Judicial Departments.
It should be noted that when a plenary ruling is issued, it does not legislate, it interprets, or establishes the
scope that corresponds to grant to a certain rule already issued. When a ruling is issued
with general effects, and that establishes it as a mandatory norm for other judges or for individuals, not
It exercises legislative function, because it does not create an original and unconditional right of the legal order.(16).

Notwithstanding the above, it is common practice for lower courts to apply the guidelines of the ruling.
plenary, but leave their disagreement in the grounds of the ruling safe for the case they deem it necessary
necessary.

3.2.3. Council of the Judiciary

In the table that summarizes the National and Autonomous City of Buenos Aires organization, there has been
omitted to include two judicial bodies called the Council of the Judiciary, one of a national nature
and another similar one but of a local nature, that is, of the City of Buenos Aires.
The omission is due to the fact that they do not have jurisdictional functions directly aimed at the litigants, as
that these multisectoral bodies made up of judges, lawyers, and legislators only have as
function select judges, manage the resources that the budget assigned by law gives, exercise
disciplinary powers over the magistrates, decide on the opening of the removal procedure
the same and dictate the regulations related to the judicial organization.
3.2.4. Other judicial operators. Public Prosecutor
The Public Ministry, before the constitutional reform of 1994, was characterized by its dispersion.
functional reflected in different regulations, and by the disagreement that its institutional location raised in
I return to those who placed it within the Executive Power and those who considered it an appendix of the Power.
Judicial(17).
As a result of the constitutional reform of 1994, the Public Ministry acquired a role
protagonist within the operators of the justice system, since the Constitution granted it a true
independence, functional autonomy and financial self-sufficiency(18) .
The Public Ministry is constituted by a bicameral body, composed of the Prosecutor's Public Ministry,
that brings together and coordinates the actions of the prosecutors, and on the other hand the Public Defense Ministry, which fulfills
identical function with the Official Public Defenders.
Its members lack ordering, instructional, and decision-making powers, attributes typical of the
judges. They have demanding functions, which is manifested through the interposition of a certain type of
claims and control that they exercise regarding compliance with certain rules of interest
to public order.
The Public Prosecutor's Office is headed by an official with the title of Attorney General.
and the Public Prosecutor's Office in charge of the General Defender. As a consequence of this, both
Officials are the heads of all prosecutors or defenders, respectively of the lower hierarchies.
It is important to note that the Attorney General is the prosecutor before the Supreme Court of Justice of the Nation.

4. THE JUDGE AND AUXILIARIES OF THE ADMINISTRATION OF JUSTICE. HUMAN FACTOR

The justice service is provided by a diversity of bodies made up of officials and auxiliaries.
with specific roles.
The collegiate courts as well as the single-judge ones have a series of officials and/or
employees with different hierarchies, functions, and responsibilities, ranging from the most basic
deployed by the so-called 'meritorious' up to the highest hierarchy which is the 'Judge' in the case of a
single-judge tribunal or the president of it in the case that it is collegiate.
The most important ones are summarized below.

4.1. Judge
He is the magistrate and director of the process, ultimately he is the one who makes decisions on the issues.
that have been submitted to his judgment, since he is endowed with jurisdictional authority in accordance with
it has been exposed in previous paragraphs.
In those cases where the court is collegiate, always in an odd number, it is generally composed of
Three judges, one of whom serves as president and the other two as members. The decisions are
They are adopted by majority; it is common practice to observe rulings with dissenting votes from the minority. The
The president of the court has the power to order the debates, in addition to exercising the acts.
necessary instructions for the development and compliance of each of the stages in which it is divided
process.
The position of judge is exercised at any level of the pyramid of the organization of the justice system.
Although they are referred to as: Chamberlain for those who function as judges in each
one of the chambers in which the Courts of Appeal are divided, and Minister of the Court to each of them
seven judges that make it up.
The protocol uses in the forensic field that are commonly used in reference to the judge are the
following: Mr. Judge, when making a request, Your Honor, which means 'your lordship' or its similar Your Excellency, 'your excellence.'
"Your Honor". All these expressions are used in first-instance courts and integration.
unipersonal. In contrast, V.E., for 'your excellence' when the request is made to a plural body of
higher hierarchy than that of first degree, for example to the most excellent chamber of such jurisdiction.

When the development of the petition is submitted to a higher court, referring to the judge of the instance.
It is of inferior style to use the following expressions: "first-instance judge", "grade magistrate".
"the lower court," or "the one from which (it comes)." Conversely, if the petition is made in a lower court, when referring to
to the supreme court, the following expressions are used: 'the Most Excellent Chamber, or Court (as the case may be)', 'the
Superior
As a brief summary, it is important to highlight that the Judge in the entire judicial process is the one who adopts
resolutions, becoming the sole decision-maker.
Designation and removal
Article 99 of the National Constitution, in setting the powers of the President of the Nation, establishes
in its section 4 that "appoints the justices of the Supreme Court with the agreement of the Senate by two-thirds
of its members present, in a public session, convened for this purpose. It appoints the other judges of the
lower federal courts based on a binding proposal in a list of three from the Judicial Council,
with the agreement of the Senate, in a public session, in which the suitability of the candidates will be taken into account.

Based on that, the Council of the Judiciary(19)organizes public competitions to select the
candidates for judges. In this regard, this body has issued a regulation for public competitions of
opposition and background; which means that the applicants must undergo examinations and
accompany the curricular background of the case.
The Council, based on the candidates selected in the public competitions, prepares shortlists of
candidates, from which the Executive Power and the Senate must jointly appoint the judge. It is worth noting
It is noteworthy that the ministers of the Court, as well as the Attorney General and the Public Defender, are proposed.
directly by the Executive Power and submits them to the Senate's agreement.
The Council of the Judiciary also supervises the work of judges and may eventually impose
sanctions. In case there are serious reasons that could justify the removal of a judge, the Council
It is the body responsible for initiating the impeachment process, ordering its opening and calling for it.
to the Disciplinary Court that will decide the judge's situation. In the political trial, the Council acts as
prosecuting party.
Guarantees
The principle of immovability of judges arises from Article 110 of the National Constitution, which states:
The judges of the Supreme Court and the lower courts of the Nation will keep their jobs.
as long as they maintain their good conduct, and they will receive a compensation for their services that will be determined by law, and
that cannot be diminished in any way while they remain in their functions.
This is the pillar on which the independence of the Judiciary is based and that makes the balance viable.
the functions of the power of the State as outlined in the previous sections. In reality, there is no need to
see it as a privilege for the judge, but rather as a guarantee for the exercise of the function and for the benefit of the
litigants, as it frees them from the pressures that affect their judgment.
Notwithstanding this, there is a limit, since good performance, good conduct, and suitability act
as conditions of immobility, it therefore ceases to be an absolute guarantee. This guarantee of
Inactivity is extended for the degree and the venue.
Two statements are brought up in which the Court had to clarify the guarantee of immovability.
The first of them is the case of Carlos Fayt (current minister of the CSJN). By virtue of an action
promotional declarative, the High Court declared the absolute nullity of art. 99, section 4, paragraph 3 of the CN,
A new appointment, preceded by the same agreement, will be necessary to maintain in the...
position to any of those magistrates, once they reach the age of seventy-five years. All the
Appointments of judges whose age is as indicated or older will be made for five years, and they may be
repeated indefinitely, for the same procedure.
This provision suppressed the guarantee of immobility contained in Art. 110, CN.
The second of them was dictated by the Supreme Court of Justice of the Nation, through the Agreement.
No. 20 of 11/4/1996, regarding the irreducibility of judges' salaries, since against the ruling
of thelaw 24.631which repealed the exemption from the payment of the Income Tax for judges, declared
the inapplicability of article 1 of said law insofar as it repeals the exemptions contemplated in the Law of
Income Tax for judges and officials of the National Judiciary.
 The arguments put forward for its consideration are based on the fact that the Court must adopt as an organ
the head of one of the departments of the Federal Government, the necessary and appropriate measures to
preserve the independence of the Judiciary and the supremacy of the National Constitution, one of whose
inspiring purposes stated in the Preamble is to strengthen justice. It also considered that it has
has been affected by a law whose implementation represents a decrease in the remuneration of judges
and officials being a legislative interference that exceeds the powers delegated by the Law
It undermines institutionally the independence of the Judicial Branch of the Nation, whose defense is
non-negotiable for the Court.
Duties and Powers
The judge has a multitude of duties and disciplinary, ordering, and investigative powers, as well as
warnings.
To this effect, there are a series of rules that operate as a regulatory framework. In this sense, it
they will only present those of a national character, although it is appropriate to clarify that as their provisions are
Essential, general, and basic serve as predicates for their approximate replication in other jurisdictions.
For all the jurisdictions, which in the classification of this work have been called patrimonial, the subject
Under analysis, it is legislated in the Code of Civil and Commercial Procedures of the Nation (CPCCN).
The differentiating element with criminal ordering lies in legislative technique. Indeed, in these
the privileges, the civilians, the duties and powers in general are gathered in a specific chapter
of the code, on the other hand, in criminal matters they are scattered throughout the regulations,
as it will be addressed when the topic is dealt with in subsequent paragraphs. From now on, the
civil jurisdiction to encompass all areas that are not criminal. Furthermore, it is the term commonly used that
It is used in the forensic field in the extended sense to denote that the action is not of a criminal type. The use
in a strict sense refers to the specific civil jurisdiction.
However, as will be explained in the following paragraphs, within the civil process there is also
instructive provisions that are scattered throughout the code.
Example: the complainant (affected individual in the Province of Buenos Aires) is referred to in matters
penal to the person who was a victim of the commission of a crime. In the same criminal process, it can also
to become a civil actor. This double role, optional for him, seeks the compensatory reparation that derives
of the crime and is processed in the same file of the criminal process. As can be seen, there are two
different typical actions.
Regarding procedural policy, concerning the powers of the civil judge, there are in doctrine
three systems. In the first one, the judge was a stone guest, since this is a conception
extremely privatized where the dispositive principle is applied in its purest state. A position that
is located at the opposite extreme, considering the judge as the commander of the process, based on a
hyper-publicist conception that turns the judge into a dictator of the process. An eclectic position, which is
the one that supplies the current standards, is the one that considers the judge as the director of the process, where
there is a balance between the powers he has and the powers of the parties, all based on the
constitutional guarantee of the right to defense in trial(20).

Indeed, Article 34 establishes a series of duties that differ from those of an administrative nature, already
that these last ones point more than anything to the functioning and internal organization of the various bodies
and which are established in the various regulations of the National Justice in general,
those who have special rules for each of the courts.
Homework
Article 34. - Duties. The duties of judges are: 1. To attend the preliminary hearing and to personally carry out the others.
procedures that this Code or other laws assign to you, except for those in which the delegation
I was authorized. At the hearing, or when deemed appropriate, if the circumstances justify it,
it may refer the parties to mediation. The terms of the judicial file will be suspended for thirty (30) days
counted from the notification of the mediator at the request of either party and will resume once it has expired.
This deadline may be extended by explicit agreement of the parties. In divorce, personal separation, and
nullity of marriage, in the order that mandates the transfer of the lawsuit, a hearing will be scheduled in which
The parties and the representative of the Public Ministry, if applicable, must appear in person. In it, the judge
will attempt to reconcile the parties and to bring them to an agreement on issues related to child custody, regime of
visits and attribution of the marital home. 2. Decide the causes, if possible, according to the order in which they have
remained in state, except for the preferences established in the Regulations for National Justice. 3. Issue the
resolutions subject to the following deadlines: a) Simple orders, within three (3) days of
submitted the requests by the parties or upon the expiration of the deadline in accordance with the provisions of article 36, inciso
1) and immediately, if they should be issued in a hearing or have urgent character; b) The sentences
interlocutory judgments and homologating rulings, unless otherwise provided, within ten (10) or fifteen (15)
days to submit the file to the court, depending on whether it is a single judge or a collegiate court; c) The sentences
definitive in ordinary proceedings unless stated otherwise, within forty (40) or sixty (60) days, as applicable
single judge trial or collegiate tribunal. The deadline will be counted, in the first case, from the summons.
of cars for sentencing, issued within the term of simple provisions, shall be firm; in the second, from the date
of the file lottery, which must be carried out within a period of fifteen (15) days of being in state; d) The
definitive rulings in the summary trial, within twenty (20) or thirty (30) days of the file being submitted
dispatch, depending on whether it is a single judge or a collegiate court. When it involves amparo proceedings, the deadline
it will be ten (10) and fifteen (15) days, respectively. In all cases, if evidence is ordered ex officio, it will not
They will compute the days required for compliance. 4. To establish any final or interlocutory ruling, under penalty of
nullity, respecting the hierarchy of current norms and the principle of congruence. 5. Direct the procedure,
must, within the limits expressly established in this Code: I. Concentrate as much as possible, in the same
action or hearing, all the proceedings that are necessary to carry out. II. Indicate, before processing any request,
the defects or omissions that it suffers, ordering that they be corrected within the period that it sets, and to dispose of ex officio
all necessary diligence to avoid or remedy nullities. III. Maintain the equality of the parties in the process.
IV. Prevent and penalize any act contrary to the duty of loyalty, probity, and good faith. V. Monitor the processing...
from the cause, the greatest procedural economy should be pursued. VI. Declare, at the time of issuing the final judgments,
the recklessness or malice that the litigants or intervening professionals may have incurred.
From the reading of the cited article, it is clear that these are procedural duties, since there are
other higher-ranking duties, due to being inherent to the function of the judge that can be grouped
generically in: independence, impartiality, science, and diligence(21) .
From the enumeration of duties, those with the greatest procedural significance are highlighted, and they
they point out those that are merely nominal due to the judges' inability to overcome a
marked culture of delegation of functions whose effects project onto forensic practices
imbued with such habits operate as de facto derogatory factors of the norm. Examples of these
the last ones refer to the presence of the judge in the evidentiary hearings and the leniency with which
they handle the procedural deadlines imposed on the magistrate.

In contrast, among those that have the greatest procedural significance are the duty to direct the
procedure, to resolve and to justify the latter based on the principle of congruence. Resolving is fundamental,
otherwise there would be a blatant delay of justice, just as it would be to base its resolutions in such a way
congruent, since if not, one would be facing a clear case of arbitrariness. Congruence is based on the
motivation, and this is the statement of the premise of the syllogism that concludes in the resolving points, is
to say, the logical itinerary that the judge has followed to reach the sentence
A topic that deserves to be highlighted is that related to mediation. Indeed, at a national level, and now also
in the province of Buenos Aires, without prejudice to its progressive extension throughout the country, there is an institute
called "mediation". This is a method through which it seeks for the parties to resolve before starting in
judicial headquarters a contradictory process, through mutual concessions achieve an agreement without the need for
to resort to the classic adversarial method. At the National level, this instance is mandatory and only in
In case an agreement is not reached, it goes to the judicial instance. However, recently through thelaw
26.589it has been incorporated in the first clause of the duties of the judge (transcribed in previous paragraphs), the
possibility that, while in a court setting, the judge orders referral to mediation. As it can
to appreciate, more than a duty, it is a faculty.
Disciplinary powers
Article 35. - To maintain good order and decorum in the trials, judges and courts must: 1) Order that
test any defamatory phrase or written in indecent or offensive terms, unless one of the parties or a third party
Interested parties request that it not be done. 2) Exclude from the hearings those who improperly disturb its course. 3)
Apply the disciplinary corrections authorized by this Code, the organic law, the Regulation for Justice
National, or the regulations issued by the Judiciary Council. The amount of fines that had no destination
special established in this Code shall apply to that set by the Supreme Court of Justice of the Nation. Until then
that court determines who will be the officials responsible for promoting the enforcement of fines, that authority
corresponds to the representatives of the Public Prosecutor's Office before the respective jurisdictions. The lack of execution
within thirty days of the resolution becoming final that imposed them, the delay in the procedure or abandonment
"unjustified absence will be considered a serious offense."

Regarding disciplinary powers and the possibility of applying sanctions, as well as the orders
The instructor guidelines are based on the principle of 'coercion' which was conceptualized in the sections
previous.
Art. 36. - Even without a request from a party, judges and courts must:
 1) Take measures to avoid the paralysis of the process. To this end, once a deadline has passed, it has been exercised or
the corresponding faculty will move on to the next stage in the procedural development, ex officio providing the
necessary measures.
2) Attempt a total or partial reconciliation of the conflict or procedural incident, being able to propose and promote that the
parties refer the litigation to other alternative dispute resolution means.
At any time, you may order the personal appearance of the parties to seek a conciliation.
3) Propose formulas to the parties to simplify and reduce the litigated issues arising in the process or
regarding the evidentiary activity. In all cases, merely proposing conciliatory formulas will not matter
prejudice.
4) Arrange the necessary actions to clarify the truth of the disputed facts, respecting the law.
of defense of the parties. For this purpose, they may:

a) To summon the personal appearance of the parties at any time to require explanations that
necessary estimates for the object of the dispute;

b) Decide at any stage of the case the appearance of witnesses in accordance with the provisions of article 452,
experts and technical consultants, to question them about what they consider necessary;
c) Order, with the formalities prescribed in this Code, that existing documents in possession of be added.
the parties or third parties, in the terms of articles 387 to 389.
5) To initiate the procedure ex officio, when there are inactive funds belonging to minors or incapacitated individuals, in order to ensure that the
legal representatives of these or, where appropriate, the Minor Advisor, make proposals that they deem most
convenient in the interest of the minor or incapable, without prejudice to the own duties of that official with the same object.
6) Correct, at the time established in article 166, paragraphs 1) and 2), material errors, clarify concepts.
dark, or remedy any omission of the sentence regarding the claims discussed in the litigation, as long as the
amendment, clarification or addition does not alter the substance of the decision.

Coercive sanctions
Article 37. - Judges and courts may impose compulsory and progressive monetary sanctions aimed at
that the parties comply with their mandates, the amount of which shall be in favor of the litigant harmed by the breach.

Sanctions may be imposed on third parties in cases stipulated by law.

The sentences will be scaled in proportion to the economic capacity of the person who must satisfy them and may be left
without effect, or to be subject to readjustment, if the latter withdraws their resistance and justifies their actions totally or partially.

The preceding clauses are sufficiently literal, allowing for their understanding with the simple
reading of each of them. However, it is advisable to provide some explanation to the concept of 'measures
for better provision
that the judge rules under the protection of the powers that emerge from this article.
Indeed, within the field of the dispositive principle, the parties have the ability to offer and
to produce the evidence they deem appropriate to substantiate their actions. However, the director
of the process, in the search for objective truth regarding the facts disclosed in the process, can
to require the production of evidence that he considers the parties have omitted to provide in whole or in part.
For example, once the expert report of an accountant is submitted in response to the interrogatory posed.
For the parties, it should not be surprising that the judge orders as a measure for better judgment before issuing a sentence.
provide for the expert to answer any question that was not included in due time in that.
As mentioned in the first paragraphs of this section, there are also instructive powers.
in article 415, interrogate the parties in the confession, in article 438, request the parties in the hearing
testimony the explanations that were necessary, art. 448, order the confrontation between witnesses or between them and
the parties, art. 460 add new points in the expert reports as proposed by the parties; reconstruction of
facts and organize the explanations to the experts.
Up to this point, the topic concerning the duties and powers that govern in the sphere of
civil field, but as has been anticipated, in the criminal field such issues are scattered to
throughout the Code of Criminal Procedure of the Nation.
For the purposes of a proper understanding of the topic, it is advisable to make a very brief synthesis of
national criminal procedure.
It is divided into two stages: The first is called Instruction and is in charge of
from a judge with that designation. In the development of this sequence of the procedure is where
the inquisitorial system finds fertile ground, in which the accused faces several limitations
although not in an absolute way) to participate in the production of evidence regarding the facts that
they are reproached. The second, in the event that the accused is prosecuted, is the trial or oral debate.
in charge of a collegiate tribunal of three members. It is at this stage where the accusatory system is embodied,
since the disposition of the proof is established in favor of the parties and where full compliance is given to
right of defense and due process established as constitutional guarantees. For this reason, it has been pointed out
It is timely that the Argentine national criminal system is mixed (inquisitorial/adversarial).
This summary attempted in the previous paragraph allows us to notice that in the instruction stage said
The faculty is inherent in the very designation of the judge and is specifically reflected in the Title.
No. 3 of the Code, which are identified by the preceding article number:
Judicial inspection
218. Body and mental inspection
Coercive powers
220. Identification of corpses
221. Reconstruction of the event
225. Raids
Personal requisition
234. Interception of correspondence
235. Opening and examination of correspondence. Seizure
239. Duty to interrogate witnesses
247. Compulsion
Immediate arrest
253. Authority to arrange expert opinions and confrontations

276. To arrange face-offs

In the next stage, that is, in the Trial, Article 370 is sufficiently explanatory given the
simple literalness of the writing.
The president will exercise the power of policing and discipline of the audience, and can correct on the spot, with calls for
attention, warning, fines in accordance with Article 159, second part, or imprisonment for up to eight (8) days, the
violations of the provisions of the previous article, without prejudice to expelling the offender from the courtroom. The
The measure will be issued by the court when it affects the prosecutor, the other parties, or the defenders. If the individual is expelled from the
defendant, his lawyer will represent him for all purposes.
Incompatibilities
The provisions that establish incompatibilities are specific to the field of administration.
Justice in the strict sense of the concept, that is, they are prior to the ruling and the temporal vicissitudes that
They may contain the laws or codes of procedure. In this sense, those that govern will be presented.
for the national scope, but given the nature of its provisions in general, they are replicated elsewhere.
from the provincial legislations.
At the national level, the Acordada is applicable to the subject.December 17, 1952, how
Regulation of National Justice, which has incorporated modifications over the years. In it, there
establishes that magistrates cannot: engage in political activity, practice liberal professions, exercise the
commerce or any other profitable activity, except for teaching at higher education levels.
In summary, what the regulation seeks is to maintain the judge's independent criterion in order to preserve
its objectivity in decision making.
Recusal and excuse
Both legal regulations and universal ethical standards, as well as common sense, guide
your applications to achieve the objective of impartiality as a binding operational guarantee in any
action where a third party is authorized to resolve disputes.
The Supreme Court of Justice has stated that the impartiality of the judge can be defined as the
absence of prejudices or interests of this in relation to the case that must be decided, both in relation to the parties
like to the matter. That is to say, total alienation of the parts is necessary.
 The following will discuss the topic based on the provisions in national matters, although
they are similar in all provincial and even foreign legislations as they constitute the central vertex of
the question.
Indeed, in criminal matters, the specific code of procedures establishes:
Art. 55. Grounds for disqualification. The judge must recuse themselves from knowing the case when one of the following exists
reasons:
1. (According tolaw 24.121) If I had intervened in the same process as a public ministry official, defender,
complainant, plaintiff or civil actor, or would have acted as an expert or known the fact as a witness, or if in other
judicial or administrative actions would have acted professionally in favor of or against one of the parties
involved.
2. If as a judge you have intervened or intervene in the case any relative of yours within the fourth degree of
consanguinity or second degree of affinity.
3. If he were a relative, in the aforementioned degrees, with any interested party.

4. If he or any of those relatives have an interest in the proceedings.

5. If he/she has been or is a tutor or curator, or has been under the guardianship or curatorship of any of the interested parties.

6. If he or his relatives, within the aforementioned degrees, have a pending lawsuit initiated beforehand, or
society or community with any of the interested parties, except for the corporation.
7. If he, his spouse, parents or children, or other persons under his care, are creditors, debtors, or guarantors
of any of the interested parties, unless they are official banks or established in the form of corporations
anonymous.
8. If before starting the process they had been an accuser or denouncer of any of the interested parties, or accused
the one reported by them.
9. If before starting the process any of the interested parties had promoted impeachment.
10. If he has given advice or expressed his opinion extrajudicially about the process to any of the
interested parties.
11. If you have a close friendship or open enmity with any of the interested parties.
12. If he, his spouse, parents or children, or other persons under his care, have received or will receive benefits.
of importance to any of the interested parties; or if after the process has begun, he has received gifts or
gifts, even if they are of little value.
Article 56. Interested parties. For the purposes of the previous article, the interested parties shall include the accused, the offended party or
the injured party and the civilly sued party, even if the latter do not constitute a party.
The one that governs in Civil and Commercial matters establishes:
Article 17. - The legal grounds for disqualification shall be:

1) The kinship by consanguinity within the fourth degree and the second of affinity with any of the parties, their
mandataries or scholars.
2) The judge or their relatives or in-laws within the degree expressed in the previous paragraph, has an interest in the lawsuit
or in another similar case, or society or community with one of the litigants, procurators, or lawyers, unless the
anonymous society.
3) The judge has a pending lawsuit with the recusing party.

4) Being the judge, creditor, debtor, or guarantor of any of the parties, except for official banks.
5) Being or having been the judge who authored the complaint or accusation against the recused party, or being reported or accused by this party with
prior to the initiation of the lawsuit.
6) To be or have been the judge denounced by the recuser under the terms of the law on the prosecution of magistrates,
whenever the Supreme Court has ordered to proceed with the complaint.
7) Having been the defending judge of any of the litigants or having issued an opinion or report or given recommendations
about the lawsuit, before or after it has started.
8) Having received significant benefits from either party.
9) The judge has a friendship with one of the litigants that is manifested by great familiarity or frequency in interaction.
10) Having enmity, hatred, or resentment against the recuser that is manifested by known facts. In no case
the recusal will proceed for attacks or offenses inflicted on the judge after they have begun to hear the case
subject
 As can be seen in the aforementioned texts, the legislative technique adopted for the treatment
the topic under analysis differs in its approach, as the criminal procedure does so through the concept
of inhibition (excusal) and the civil one does it through recusal, but in both cases the points
essentials serve both for the judge to excuse himself and for a third party to challenge him. It is useful to highlight that
The common denominator regarding causal situations is similar in both legal systems.
In a synthetic explanation, it can be said that in both environments the procedure consists of
that when it is the magistrate himself who observes a conditioning factor, he introduces the proposal through
of their excusal, that is, they refrain from acting, on the other hand, when pointed out by one of the parties,
let these be the ones who make the plea through the disqualification.
In both situations, if it is consented to by their respective reciprocals, the process changes magistrate,
otherwise, it is resolved by the corresponding immediate appellate court. If the matter involves any minister of the
Cut, the others will resolve it.
In order to find a didactic scheme in relation to the stated assumptions, they can contain
in two major approaches:
a) The objective: it protects the party seeking justice when they may fear the bias of the judge due to objective facts.
of the procedure, without questioning the personality, the honorability, or the specific work of the magistrate.
The loss of objectivity on the part of the judge can be established when there is a debtor relationship or
creditor between the magistrate and one of the parties; when there is a direct economic interest or
indirectly with any of the parties, or by having received benefits from any of them.
b) The subjective: directly involves the particular attitudes or interests of the judge with the outcome of
lawsuit.
To have a manifest friendship or enmity with any of the parties; to have acted in previous defense with
some of them, or having given advice or opinion; having been reported or sued or having been
object of the impeachment promotion of any of the parties. Having kinship up to the fourth degree.
degree of consanguinity or second degree of affinity.
The way to establish the degrees to locate the relationship between relatives far exceeds the intended purpose.
from this exhibition, but it should be noted that the fourth degree of consanguinity reaches up to the great-great-grandson
in a straight line and to the uncle/aunt in a collateral line; and the second degree of affinity to the brothers-in-law.

From the comparison of the causes between the criminal and civil order, it is noted that in the former
they mention as an impediment that the magistrate has intervened in any of the previous stages
of the criminal process. For example, that the judge acting in the trial or oral debate stage has been
the one who instructed the case in the preliminary stage and who, due to promotion reasons, must intervene with their new
function. However, it should be noted that the same injunction is practically used in civil proceedings,
despite not being explicitly stated in the procedural regulations. Example of the latter
Situation can be observed when a magistrate issued a ruling, then was promoted to judge of the
Court of Appeal, and the appeal is considered by the chamber of which he is a member. Another aspect in which it
some differences are warned about regarding kinship, since civil regulations spread such a cause to
the representatives and lawyers of the parties, although it is worth noting that in criminal practice as well,
Indeed, the extension is used. Regarding the debtor/creditor situation in criminal matters, it is done
extensive to spouses, parents, children, or others who live under the care of the magistrate, as well as regarding
the existence of received benefits.

4.2. Secretary
Its basic role is to authenticate the most important acts of the judges; it is a function very similar
that which notaries or notaries usually carry out outside the judicial sphere. In that sense, they extend
certificates, testimonies, and copies of records. They can also sign procedural orders and those
acts that are indicated in the local procedure codes.
They also assist the judge in the proceedings of the court, as he is second in hierarchy within.
of the same.
There are courts or tribunals that have single secretariats, others with two and even three; but the most ...
common to both. All of this is directly related to the volumes and complexities of the
causes of the jurisdiction. Sometimes, there are secretariats dedicated solely to a specific cause, since the
The complexity of the topic warrants it. It is often referred to as 'Ad hoc', meaning created specifically for the case.
what is considered. Ad hoc rooms have even been created within certain Chambers, such as the
called the second process 'AMIA', which is processed in the Ordinary Criminal Justice instead of its
natural location in the Federal Criminal Justice.
They are notaries, that is, the public faith rests on them, reliably certifying that the
Documents that are duly authorized are authentic, unless proven otherwise, sometimes as far as
to the veracity of the content of those documents and others regarding the statements made
in their presence.

4.3. Fiscal
He is an official who acts among the judges throughout the judicial procedure, raising the
actions and the relevant resources. Its activity is carried out in all jurisdictions and at all levels.
of degree (first-instance prosecutor, chamber prosecutor). The prosecutor before the Supreme Court of Justice is the
Attorney General of the Nation as head of all prosecutors. They intervene in all matters.
in what the public interest is compromised.
In addition, in criminal matters, it is responsible for urging public action.(22)as well as fulfilling the role
accusatory.
It is important to emphasize that their decisions are reflected in opinions that, as such, although they are
Unavoidable for the judges, they are not binding for them.
In criminal matters, they submit requests.
Examples of actions before Civil, Commercial, or Labor jurisdictions are several:
In those cases of competition, the judge must seek the opinion of the prosecutor. Let it be assumed that the plaintiff
he considers that he can exercise his action in the civil jurisdiction, but the opposing party raises an exception of
competence because it considers that the procedural object is specific to the commercial jurisdiction.

An heir opens a universal succession and to prove his status as such, regarding the deceased,
accompanying filiation cases; the judge must request the prosecutor to rule on the validity and legitimacy
of the same.
The Supreme Court of Justice of the Nation, before issuing a judgment, orders the referral to the Attorney General.
General for the purpose of this official issuing his pertinent opinion.
The examples are numerous.

4.4. Public Defender

This official is responsible for the representation and defense of the poor and absent by providing defense.
public and any type of legal assistance that is required.
The institution of official defense has constitutional roots, because it ensures the absent party defense.
in the trial of their rights.
In light of this, within the organization of the Public Ministry, as stated in paragraphs
previous is bifocal because it includes the Public Prosecutor's Office (the prosecutors), and the Public Ministry of
the Defense (the defender), is installed in this last one the Public Defender for Minors and Incapacitated Persons
(vulgarly called a minor advisor), whose main purpose is to comply with the mandate
established in theArticle 59from the Civil Code: "In addition to the necessary representatives, the incapacitated are
promiscuously represented by the Ministry of Youth, which will be a legitimate and essential part in everything
judicial or extrajudicial matter, of voluntary or contentious jurisdiction, in which the incapacitated demand or
they are summoned, or regarding their persons or property, under penalty of nullity of any act of
any trial that took place without their participation.
A typical example of promiscuous representation occurs in the case of a succession and there are minors.
(incapable). In this situation, besides the parent, who has the legal representation, at the moment of
to claim to have a property that partially belongs to the minor, one must obtain a favorable ruling
of the guardian ad litem.
The typical example in criminal matters occurs at the time when a person suspected of something
The crime is called to provide an investigatory statement before an investigating judge. Being that it is a cause of
absolute nullity of the attendance at said hearing without legal representation, the court must immediately
refer the defendant to the public defender.
In the rest of the jurisdictions, it often happens that it becomes impossible to locate the defendant. In these
cases, once all possible means of notification have been exhausted with results
negatives, the judge will order the transfer to the defender of the poor and absent, who will exercise the representation of
defendant, having to respond to the lawsuit and even counterclaim if necessary.

4.5. Experts
Considering that the provision of justice service is always in the past and, as has been pointed out
in the previous sections in the cases where the events that occurred are presented in form
controversial to the parties, the judge must acquire knowledge of them through the evidentiary process.
To this end, it relies, among others, on expert witnesses who serve as auxiliaries of justice.(23)
These experts are selected based on their various professional backgrounds and fulfill their
functions responding to the questions posed regarding the narrated events
in the file. Their opinions are expressed through reports or opinions which properly
foundations are subject to the evaluation of the judge, as they are not binding.
There is a variety of experts that adopt various names:
On one hand, those who are drawn (lottery) are called "Court Experts".
a list in which they have previously registered. Their remuneration is through the fees regulated
the judge. The scope of action is in all jurisdictions, in general, except criminal ones.
On the other hand, there are those known as 'Technical Consultants', who are experts proposed by
the parties and perceive the fees they have agreed upon. They participate in the proceedings in coordination
with the court-appointed expert, being able to produce opinions that are totally or partially different from those of the latter. The scope
of action is within the Civil and Commercial jurisdictions.
In criminal proceedings, experts from the body of experts of the Judiciary are summoned.
which are compensated by the salaries set in the various salary scales of the
justice. In this area, both parties, that is, the prosecution and the defense, can propose the
called "Expert Witnesses" who act similarly to the aforementioned technical consultants.
There are also so-called 'partition experts', who are generally summoned in the
civil processes in matters of successions, when the heirs do not reach an agreement on how to
the one who divides the assets of the hereditary estate. The remuneration is through the fees that it regulates.
the judge.
The same provisions regarding recusals and excuses apply as those indicated for judges.

4.6. Monitors
They are those assistants appointed by the court, generally as a result of the issuance of measures.
precautionary or preventive measures, that is, those that are adopted while the process is ongoing.
The variants that occur within this genre range from the position of overseer, co-administrator, and even
administrator with displacement of the natural organs of administration. Each of these functions
has different purposes, since the inspector is one who acts as the eyes and ears of the judge within
the organization, on the other hand, those of co-adminstration or administration contain another type of powers, already
who are empowered to make decisions within the economic unit in which they participate.
There is a variant which is the collecting supervisor, whose function is to get involved in social businesses with
powers to collect the sums of money that were previously determined. In all cases,
the auditors in any of their forms are compensated through the fees regulated by the
judge.
The same provisions regarding recusal and disqualification mentioned for judges apply.

4.7. Trustee
Within the orbit of bankruptcy law, the trustee has a somewhat promiscuous relationship, since by a
Lado is an official of the contest, which is a private and collective process, a situation that distinguishes him.
of a public servant of the state, but it is also part of the plural process and, furthermore, an organ that
It integrates the insolvency procedure. One can risk characterizing it as a performance professional.
diffused within the complex framework of the specific law that is simultaneously substantive and formal.
As has been made explicit, for other assistants, in the preceding sections, their action is limited to
to produce reports or opinions that are not binding for the judge, whose only duty is to request an opinion
founded from that.
The most relevant function displayed in both the bankruptcy process itself and in the
bankruptcy, consists of participating in the selection process of the creditors that make up the
universe of suitors.
In preventive bankruptcy proceedings, it plays a 'watching' role, that is, it controls without
displace the natural authorities of the bankrupt entity, on the other hand, in bankruptcy, continuing with the tasks
the previously indicated promiscuous also acts "in committing", that is, it disempowers the natural organ of
management of the failed economic unit and acts as the legal representative to third parties
always, of course, receiving instructions from the process director who is the judge.
The same provisions regarding disqualifications and excuses apply as those established for judges.
It is compensated through the fees regulated by the judge.

4.8. Court officials and bailiffs

All judicial organizations in the country have an office for Orders and Notifications.
of the Judiciary in which the judicial officers functionally operate as officials
ushers.
Notwithstanding this, and more specifically in criminal proceedings, there are court bailiffs, whose work of
notification on very important and urgent matters is exercised directly, not necessarily through
from the office of Mandates and Notifications.
There is a procedural act called notification, which consists of a procedural communication.
ordered by the judge, by which the parties and other interested parties are informed, the
judicial provisions. There are various forms of notification, the most common being the issuance of
bills.
The notifying officer is the judicial official responsible for home notification by 'cedula'.
The notification document is a public instrument signed by the lawyer (proxy or sponsor),
by the syndic, guardian or curator ad litem or those issued by the Secretary. These may be intended
to the legal or procedural address identified by the parties where notifications are valid; in this case, it
qualifies the address under the term "established", or they may be directed to another address that is not
the one expressly fixed by the parties, in that case it is qualified with the addition of 'reported'.
In the second case, the notifier must carry out a procedure aimed at verifying that in that
address, previously reported in the file, the recipient of the
communication, on the other hand in the first case it is sufficient to leave it at the established address.
The court officer executes the orders for seizure, confiscation, eviction, and minutes of verification.
any other action ordered by the Court. As can be seen, it is transmitted to you through an official letter.
decision already taken by the judge, which sometimes leads him to interpret what has been the meaning that
The officiant has wanted to give his decision. Administer that decision, without modifying or altering it.
 To fulfill this last requirement, carry out necessary activities that clearly arise.
indicated in the received judicial document (writ or official report). But contingencies also occur that
they arise at the moment of practicing diligence, for which it will have to be resolved within a framework of
technical discretion, choosing the most appropriate alternative to fulfill the ultimate purpose of the mandate
judicial.
As public officials, the Court Officer and the Notification Officer are notaries, this
the public faith rests on them, reliably certifying that the documents they authorize in
They are authentic unless proven otherwise, sometimes regarding the truthfulness of the content.
of those documents and others regarding the demonstrations that take place in their presence.

4.9. Lawyers and attorneys

In reality, these professionals are assistants to the parties.
The technical function of the lawyer is to provide legal assistance to the party that hires their services during the
processing of the process, on the other hand, that of the attorney, also hired, acts on behalf of the party to whom
Procedurally represents. The role of the first is to sponsor and that of the second is to represent.
Now, nothing prevents such functions from being exercised, and in practice, this is how it happens, by the
lawyer in his dual capacity. It is very common for the lawyer to act as an authorized attorney for the party
what it represents procedurally. That is to say, it is an attorney (mandate with representation) and simultaneously is
sponsor, combining both functions.
The various procedural rules throughout Argentina require the obligation of at least
legal sponsorship for the documents presented in the courts; that is, the technical function of assistance
it is mandatory. For example, a document is headed by 'XXXX by its own right, with the sponsorship of
Dr. YYY; in that case, the tense in which the exposition is formulated is in the first person and at the foot of
the writing bears the signatures of both. On the other hand, an example of the lawyer's action in his dual role
apply if the heading of the document states 'Dr. YYYY, in the capacity of attorney-in-fact for XXXX', in
In which case at the bottom, only the lawyer's signature will operate, and the verb tense used will be the third.
person.
They are compensated according to the fee agreement they have made with their client or through
those regulated by the judge.

5. AUXILIARY ORGANISMS OF THE ADMINISTRATION OF JUSTICE

These organisms are outside the orbit of the Judicial Power, and fall under the jurisdiction of who
exercises the Executive Power (Presidency or governors), that is, the administration.
However, their respective existences are fundamentally justified by the degree of interaction that
they have with the judicial organization.
Indeed, these organizations process data that enables them to produce information that is useful for
supply the justice system in such a way that any court can request requirements from them
to arrange measures so that they are recorded in the respective registries.

For example, they can request general or specific information about their seats or order the annotation.
of precautionary measures for the purpose of granting publicity that certain regulations on each matter
they particularly require; a typical case of needing to identify the owner of a property or a
automotive and secondly order that a seizure be placed on them.
The following are some of the most commonly used Records.

5.1. Public Registry of Commerce

 The obligation of this Register arises from thearticle 34of the Commercial Code from the 1889 edition,
whose text establishes that in each ordinary Commercial Court there will be a Public Commercial Register,
position of the respective secretary. That is to say, the rule establishes that it will be located within the scope of the Power
Judicial.
Subsequently, the national law 21.768(24)established that the registry of the constitutive contracts of
commercial companies, their modifications and other acts and documents whose registration is
they impose on those, on their bodies, on their partners or their representatives, and any other function attributed by the
commercial legislation to the Public Commerce Register, to the registers, judges, registration judges, court of
Commerce or registration authority shall be equally the responsibility of the judicial or administrative bodies.
that local laws determine in each jurisdiction.
This is how the various local regulations were transferred from the judicial sphere to the administrative one.
the organization and functioning of the Registry. In the Federal Capital, the General Inspection was created
Justice who is in charge of the functions attributed by law to the Public Registry of Commerce, and
the oversight of stock corporations except those submitted to the National Securities Commission,
of those established abroad that carry out regular activities in the country of acts included in their
social object, of the companies that carry out capitalization and savings operations, of the associations
civilians and foundations.
This organization has registration functions such as: it registers merchants in the registry and
trade assistants and take account of the acts and documents that correspond according to the legislation
commercial. Register the commercial partnership contracts and their modifications, as well as the dissolution or liquidation.
of this. It maintains the National Registry of Stock Corporations. It maintains the National Registry of
Foreign Societies. It keeps the National Registers of associations and foundations.
It also has oversight functions with a series of powers including, among others: To require information and
any document that is deemed necessary. Carry out investigations and inspections, for which purpose it may
examine the books and documents of the companies, request reports from their authorities
responsible parties, staff, and third parties.

The General Inspection of Justice (IGJ), which operates in the Autonomous City of Buenos Aires, still
It is located in the orbit of the Nation, until the transfer to the local government is carried out.
In the area of the Province of Buenos Aires, similar functions are fulfilled by the Provincial Directorate of
Legal entities; and in the rest of the provinces, they operate under similar administrative denominations.

5.2. Real Estate Registry

The Registry is local. Both in the Federal Capital (until the transfer to the local government is completed),
As in the provinces, this public and official entity operates where all are registered.
acts and contracts related to property as well as the burdens, encumbrances, and rights over the
real estate.
Each property (land, buildings, etc.) is a registered property with a specific number, and
each movement on it must be reflected in a correlational manner, allowing one to take
knowledge of who the owner is at all times; also, to know if the property is encumbered
with burdens or with any other right such as: annotations of seizure, resolutory conditions, rights
of usufruct, testamentary, leases, purchase options, real rights in someone else's property.
Temporal correlativity is fundamental to comply with the precept of common law that states:
first in time, first in right.
The basic foundation of these records is to give publicity to certain legal acts in order that the
third parties may exercise the actions they consider appropriate for their interests.

Indeed, this record is declarative of rights, which means that the annotation makes it known to
third parties a modifying legal situation that has already occurred in the real world, that is, the publicity is
declarative when it only serves to make effective a right that already existed before.
"A" transfers to "B" the real right of ownership that it has over a specific property.
This sale fulfilled two of the essential requirements for it to have effects between the parties: the
possession and the respective contract elevated to a public deed; but, for some reason, this has not been
registered in the Property Registry, that is, they have failed to publicize the transfer,
derives in that said legal act cannot be opposed to a third party who, suppose as a creditor of
"A" may obtain a lien on the property.

5.3. Register of Motor Vehicle Property and Pledge Credits

Unlike the Property Registry, this one is national and constitutive of rights; it
What it means is that the real right of ownership over the vehicle is only acquired with its registration.
transfer being this the only requirement both for it to take effect between the parties and third parties
interested parties.
That is, it has a probative function that consists of the simple presumption of ownership of the one
appears as owner (Decree-Law 6582/58 article 26).
As for the operation of the entries, it turns out to be similar to that used in real estate records,
since each vehicle has an assigned alphanumeric license number (plate), in which is registered
the entries concerning transfers, encumbrances, etc.
Example: "A" conveys to "B" the ownership of a certain motor vehicle, postponing the
mutual agreement transfer. In the interim, an incident involving 'B' has occurred; however,
there is an objective attribution of civil liability and the third party, as a victim, is enabled to
also sue "A" for being the generic registry responsible.
In legal terms, what has been transferred is the custody of the vehicle, but 'A' remains
owner. It is customary to make a written document in which it is stipulated that the buyer will be responsible for
all the damages I cause with the vehicle. However, it does not exempt the transferor 'A' from the
responsibility while remaining registered as the holder. This contract can only be useful to you for
to demand from 'B' the reimbursement of the compensation that was paid.

Official Bulletin
Each of the Federal States has its own Official Bulletin, although in the present development the
the reference revolves around the national order, the organization and objectives are of an analogous nature in
all of them.
Within the orbit of the Presidency of the Nation is the National Directorate of the Official Registry.
whose scope prints and organizes the functioning of the Official Bulletin of the Argentine Republic, being the
dissemination organ through which the laws sanctioned by the Congress of the Nation are published and the
acts emanating from the Executive Power.
In principle, the rules established determine the temporal validity of their provisions and are mandatory.
from its publication; in case of silence, they will be after the eight days following that of its
official publication.(25)Hence the importance, as it constitutes a necessary and mandatory step for
that the regulations come into effect. It is worth remembering that laws are enacted by the Legislative Branch and
they are enacted by the Executive Power.
Decree 659/47 establishes in its article 3° that 'The General Directorate of the National Official Registry shall have
by mission:
a) Register the national laws of a public nature and make them public by periodically publishing them.
National Registry;
b) Register and publish in the Official Gazette, daily, the acts of the National Executive Power that have
public character;
c) Classify and separately publish all administrative jurisprudence apart from the volumes of the National Register.
that is convenient for greater illustration of the public and serves as a reference element for the
employees of the National Administration
5.5. File of Judicial and Notarial Proceedings
The same comments made in previous paragraphs regarding the rest of the
auxiliary bodies of justice, that is, they belong to the sphere of each federal state.
In national matters, by Law 17.779 of the year 1968, the Archive of Judicial and Notarial Proceedings, then
due to various vicissitudes regarding functional dependency, it was installed definitively in power
Judicial as the General Archive of the Judiciary of the Nation.
The basic objectives of this organization are: to receive, organize, safeguard, and, if applicable, destroy the
documentary production that constitutes its collection, according to the provisions of the Regulations. But additionally
execute the provisions of decree-law 3003/56 on the initiation register and reports of Universal Trials,
as well as generating statistics of the different processes.
It is worth noting that in the so-called universal proceedings, that is, those in which the litigation encompasses
the entirety of a person's estate, as is the case with an inheritance by universal title or in matters
bankruptcy, compliance with the provisions of the aforementioned decree-law constitutes the prior step that is
It is necessary to transit to achieve the uniqueness of the process in a single court, as this is an area of attraction.
of any other heritage content that the deceased or the bankrupt may have respectively, and so on
avoid simultaneous processing.
CHAPTER III

NOTIONS OF PROCEDURAL LAW

Graciela Silvia Turco

1. VERY BRIEF CONCEPTUALIZATION OF PROCEDURAL LAW

Procedural Law is often conceptualized as a branch of public law that studies the
development of the judicial process and the duties, rights, and powers of both the officials
judicial, as well as from the parties, third parties, and auxiliaries of justice within the framework of rights
and of the constitutional guarantees.
The main function of Procedural Law is to assist in the exercise of fundamental rights and the
nouns consecrated in the higher-ranking regulation. Thus there exists Procedural Law
Constitutional(1)Civil Procedural Law; Administrative Procedural Law; Procedural Law of
Job(2)Commercial Procedural Law(3) ; etc.
In this last case, there is also a division, that of Bankruptcy Procedural Law, included in the Law
of Competitions 24.522 and its modifications (hereinafter, LCQ), in Chapter III called 'Rules
Procedural
locales.
Therefore, this discipline must be understood and behave as a system of guarantees, as of
The National Constitution establishes the principles that delineate due process."(4).
The national Constitutional Law has been expanded with the reform of our Supreme Law in the year
1994 for the incorporation of international human rights treaties in section 22 of article 75 of
the same.
The north of Procedural Law is the achievement of due process, which can be a reality if in the
internal law and in its application both the National Constitution and these treaties are fulfilled. For
breach of those treaties(5), our Nation can be condemned by international courts.
In its beginnings, it was not an autonomous branch of law. It is said that its birth date is the 3rd of
February 1903, the day Giuseppe Chiovenda began his course on civil procedural law in Bologna.a(6).
 Despite all of the above, its true importance is often relegated even in some academic circles.
university students (not in law), or their study is outright neglected. Perhaps for this reason, several professionals
they do not realize the unconstitutionality of the confession evidence in that the defendant must provide
oath or promise to tell the truth according to theart. 404of the Civil and Commercial Procedural Code of the Nation
(hereinafter, CPCCN); opposed to theart. 18 from the National Constitution due to the presumption of
innocence until proven otherwise, a principle also enshrined in Article XXVI of the Declaration
American Declaration of the Rights and Duties of Man, in theart. 11from the Universal Declaration of Human Rights
Humans, in the inc. 2 of theArticle 8of the American Convention on Human Rights (more commonly
known as the San José Pact of Costa Rica), especially if "from the responses to the positions
evidence could arise that will determine the initiation of a criminal process against the declarant, or
they worsen their situation in an existing criminal process"(7).
To the widespread disregard is added the hurdle of the incompatibility of our model.
Constitutional of 1853-1860, inspired by the Constitution of the United States(8)and in the Declaration of
Rights of Man and of the Citizen, with a distinctly liberal approach, while the rest of the legislation, including
procedural law, in Hispanic and colonial law(9)The constitutional reform of 1994 reduced
partly the liberal character of the Maximum Law but the structure of the CPCCN continues practically
unalterable for decades.
Procedural codes are often referred to as codes of form, of procedure, or of adjectival law, while
that the codes listed in article 75, section 12 of our National Constitution, are substantive or substantive.
Each jurisdiction (the provinces and the City of Buenos Aires) applies its procedural code according to the matter.
We hasten to mention that there is no procedural code for each of the rights.
nouns. For example, in the national context, there is no administrative procedural code (nor a code of
neither an electoral procedural one, and therefore in the Federal Capital the CPCCN applies,
in a direct or supplementary manner.

The Law on the Financing of Political Parties(10)"26.215 (art. 71) ...establishes the application
supplementary to the procedure provided by thelaw 23.298 (11), the Code of Civil Procedure and
Commercial Code of the Nation or the National Criminal Procedure Code for the sanction of those behaviors.
punished by the first (...) although the rulings issued by the National Electoral Chamber cast a veil of
light on the procedural regime in these cases, it would be ideal to delegate a specific Procedural Code for the
discipline that encompasses the specific particularities of the subject(12).
The reason that each jurisdiction can enact its procedural code through its legislative power
It is an expression of the federal government system (arts. 1, 5, 121, 122, and 123 of the National Constitution).
The provinces have delegated some competencies to the national government.(13)and some were recognized
to the Autonomous City of Buenos based on the National Constitution of 1994(14)Among the competencies
No delegates, the authority to issue its procedural codes is found.
In this chapter we will primarily refer to some basic concepts of Procedural Law.
regarding the CPCCN and some references to the National Criminal Procedure Code (hereinafter CPPN) and
to the LCQ.

2. PROCESSUAL PRINCIPLES OF PROCEDURAL LAW

The procedural principles constitute 'the major guidelines that explicitly or implicitly provide the
legislator so that the prosecution method can operate effectively according to the guidelines
philosophical-political of someone who exercises power in a specific time and place"(15).
That is to say, those principles or procedural guarantees can change over time, either gradually or
abruptly, in this case, for a political reason(16).
According to Coviello, each legal institution has its general principles; in turn, there are others.
more general principles that inspire a set of related institutions; above these, others prevail
more general ones corresponding to a specific branch of private law (civil, commercial, etc.) or of
public law (constitutional, administrative, etc.); and, finally, it is possible to discover even more principles
general that inform all positive legislation. Exhausted the other means established by law for
to resolve the specific case, one must first turn to the fundamental principles that govern the
legal institution regarding which the controversy has been raised; then, if the solution is not found,
gradually return to the most general principles, until reaching the most general of all legislation
national positive"(17).
The general principles of law are used for the resolution of judicial conflicts that do not
they have legal reception—filling gaps—or in the face of the emergence of a phenomenon aired in courts
that has not yet been legislated.
The general principles of law according to the positivists "are in positive law" and the
Natural law theorists argue that 'the legal order has its origins in them.'(18).
The application of the general principles of law in civil matters is established.
fundamentally in arts. 16 and 17 of the Civil Code. In commercial matters, "In cases that are not
especially governed by this Code, the provisions of the Civil Code shall apply,
Preliminary Title of the Commercial Code, in accordance with article 207 of the same regulation.
For some scholars, the most important procedural principle is the impartiality of the judge, but
In our opinion, that characteristic is closely linked to the concept of jurisdiction that we have developed.
later in this same chapter.
Next, we will refer to the most important principles of Procedural Law.

2.1. Equality of the parties

The procedural principle of equality of the parties is a duty of the judge included in Article 34, paragraph 5, section.
"III" of the CPCCN. It is a derivation of the right to equality before the law, rooted in the constitution.(art.
16from the National Constitution) and conventional(19)Unlike the judge, the parties are biased. If the judge
it is not impartial, it is unlikely that the parties will be treated equally since they are not necessarily
equal(20)This principle is also known as equality of arms.
The principle of equality in procedural matters does not require arithmetical equality, but rather what it demands
that the parties are provided with a reasonable equal opportunity in exercising their right of action
and defense"(21).
The judicial process, if it is not a mere sham, must be adversarial.(22), to ensure the
characteristic of bilateralism of it. That is, no party should have more opportunities than the other,
and it is not the same as having wasted a procedural stage(23).
Even in the court ruling issued inaudita parte, for example, in precautionary measures due to danger
in the delay or to avoid the undermining of the rights of the plaintiff, the defendant has his opportunity
procedural; if applicable, challenge that resolution only at a later time.
The contradictory method is used to discover the truth.(24)of the facts submitted to
judicial decision, which has been the subject of repeated jurisprudence. Our Supreme Court has established that
...The necessary condition is that the facts be subject to verification before the judges,
no excuse the indifference of these regarding their objective truth. While it is true that to judge about a
It is a fact that it is necessary to verify its existence, which in civil matters is the responsibility of the
interested parties, and while this test is subject to limitations regarding its form and time, it is also true that
the civil process cannot be conducted in strictly formal terms. To that end, the law grants
the judges the power to take the necessary measures to clarify the disputed facts and such power
it cannot be renounced when its effectiveness in determining the truth is undeniable... It is characteristic of the
judges of the case determine when there is sanctionable procedural negligence by the parties, as well as
take the necessary measures to ensure respect for equality in the defense of their rights. But these
Considerations are not enough to exclude from the solution to be given to the trials their obvious factual basis.
because the conscious renunciation of the truth is incompatible with the service of justice..."(25).
Bilateralism is a consequence of the inviolability of the right to a fair trial that is materialized with the
communication(26)to one of the parties of a petition from the other, through transfers or hearings, so that
he/she may exercise his/her right to defense.

And in the event of defects in the notification of those transfers or hearings, the affected party can invoke the
nullity of proceedings and thus the balance of bilateralism can be restored.
 In the appeal for reconsideration against resolutions issued on their own or at the request of the same appellant,
this transfer does not exist, as the incident is resolved without substantiation(art. 240of the CPCCN) although for
to guarantee the mentioned bilateralism, some judges order a transfer to the other party.
On the other hand, the constitutional right for the accused to be judged by their natural judges,
agreement toart. 18of the National Constitution and Article 8 of the San José Pact of Costa Rica, integrates the
set of guarantees that uphold the principle of equality of the parties.
For a part of the doctrine, 'the measures for better provision,' issued by the magistrates within the framework
of its ordaining and instructive powers(27)and to which we refer later, can move
the balance of justice and to undermine the procedural principle of equality of the parties. In their favor,
It can be added that a priori the result of those pretorian measures is unknown.
Others characterize these measures as a manifestation of the procedural activism faced by the
judges(28)to achieve objective truth, and thus it would officiously remedy a negligence of the lawyer of a
part(29), compromising the principle of congruence which we refer to immediately below.

2.2. Congruence
Traditionally, in proceedings of a patrimonial nature, civil and commercial, the principle of congruence
it has been defined as the correspondence that must exist between the sentence, the plaintiff's claim and the
defense of the defendant, both regarding the parties, the object, and the cause of the litigation, by virtue of what
provided in art. 34, para. 4 and in theart. 163, inc. 6from the CPCCN30.
Like any principle, that of congruence is not absolute, as the sentence may include facts.
survivors "even if they had not been invoked in a timely manner" according to the cited paragraph 6 of article 163,
Now it's fine.
In criminal proceedings, the principle of congruence is understood as the strict correspondence between the
accusation, the precise notification of the charges it contains and the sentence"(31).
Some other examples of the flexibilization of the principle of congruence: the judge can determine a
precautionary measure different from the one requested; the judge can rule ultra petita according to Article 56 of the Law of
Procedure of Work 18.345; the inclusion of third parties in the ruling for theart. 96from CPCCN; amount
of compensation greater than claimed which was conditioned on 'what is more or less resulting from the
test"; the amparos that seek to protect essential rights; processes to protect immediately
the environment according to art. 32 at the end of the General Environmental Law 25.675; etc.(32).
In the criminal field, the countries that signed the American Convention on Human Rights must
prioritize the procedural principle of congruence. To exemplify the above, we mention the resolution of
20/06/2005 given by the Inter-American Court of Human Rights, in the case 'Fermín Ramírez v.
Guatemala. We will only refer to the analysis made by that Court regarding the principle of
congruence that defined it as identity between the accusation and the sentence(33).
The conviction under review by that Court was based on facts not included in the
accusation (and regarding the danger posed by the accused, which was not proven) disregarding the principle of
congruence and preventing the exercise of the defendant's right to defense despite the fact that art. 332bis of
The Guatemalan Criminal Procedure Code establishes that it includes as a substantive requirement of the accusation the
clear, precise and detailed account of the criminal act... and its legal qualification(34).
The defenselessness of the accused due to the lack of compliance with formalities in the expansion of the
accusation and the change in the classification of the crime attributed to him is a sign of the violation of the
"b" and "c" of theart. 8.2from the American Convention on Human Rightsos(35).
Paragraph 67 of the court's ruling states that '... When determining the scope of the guarantees contained
in article 8.2 of the Convention, the Court must consider the role of the "prosecution" in due process
penal vis-à-vis the right to defense. The material description of the alleged conduct contains the data
factual elements gathered in the accusation, which constitute the indispensable reference for the exercise of the defense
of the accused and the consequent consideration of the judge in the sentence. Hence, the accused has
right to know, through a clear, detailed, and precise description, the facts that are charged against him.
The legal classification of these may be modified during the process by the prosecuting body or by the
judge, without infringing the right to defense, when the facts remain unchanged
the same and observe the procedural guarantees provided by law to carry out the new qualification.
The so-called 'principle of coherence or correlation between accusation and sentence' implies that the sentence
it can only address facts or circumstances covered in the accusation.
In paragraph 68: 'Since the principle of coherence or correlation constitutes an indispensable corollary of'
right of defense, the Court considers that it constitutes a fundamental guarantee of due process
in criminal matters, that States must observe in compliance with the obligations set forth in the
paragraphs b) and c) of article 8.2 of the Convention.
In the following paragraph that 'In the case of 'Pélissier and Sassi v. France', the European Court of Human Rights
Humans determined that the petitioners did not have the opportunity to prepare their defense regarding the
new charge they were accused of, since only through the ruling of the appellate court
they learned about the requalification of the facts...(36).
The procedural principle of congruence is often contrasted with the judicial power known as iura novit.
courte(37)but the judge is not authorized to consider main facts not allegedos(38), solution
doubtful about the application of the principles of judicial activism.

2.3. Preclusion
This procedural principle allows the process to advance from one procedural stage to the previous one, in principle,
it remains firm. For example: the appearance of the party declared rebellious without the process being able to
retrograde (art. 64 of the CPCCN); "The technical consultant may be replaced by the party that designated him and
the replacement will not be able to claim an intervention that implies regressing the practice of expertise" (first
paragraph of theart. 461of the CPCCN).

In general, once a deadline has passed, whether or not the corresponding authority has been exercised, the development continues.
of the judicial process (art. 36, inc. 1 of the CPCCN).

2.4. Procedural Economics

The objective of this procedural principle is to simplify the processing of the case by consolidating proceedings.
to be carried out in the same place, or to the reduction of the processing time. It can be found in the
legislation, in judicial resolutions or in the requests of the parties.
It is a function of the judge to ensure compliance with this procedural principle (art. 34, inc. 5 section V of
CPCCN).
In a similar manner, within the 'Procedural Rules' of the LCQ it has been established in Article 278 that 'In
As far as this law does not expressly provide otherwise, the procedural rules of the law of the place apply.
of the trial that are compatible with the speed and economy of the bankruptcy process.
It presents different manifestations: concentration, maximum performance, eventuality, speed and
opportunity whose guidelines we outline below.

2.4.1. Concentration
The meeting in a single act of all the proceedings that must be carried out (art. 34, inc. 5, paragraph I of
CPCCN); in bankruptcy incidents, the setting of a hearing for the presentation of all evidence(art.
282LCQ); all incidental issues whose causes exist simultaneously and are known by
who promotes them should be raised together(art. 286LCQ); etc.
Continuing with examples from Bankruptcy Law, the court order to ascertain and close
the commercial address of the bankrupt reported (to the extent that it is not the individual's personal address),
diligence carried out by the syndicate together with the inventory notary and the auctioneer. Against them, if
It is a property that the bankrupt does not exploit nor is it owned by them, the bankruptcy in principle.(39)must
settle the fees of the last two judicial assistants without an effective contribution from the
same.
 The primacy of the principle of concentration over the competence of the judge based on location arises in
certain processes, such as those at stake for the best interests of the child(40)The principle
concentration is healthy, since it is very positive that the judge who had the case in his hands,
and that he processed before his court the various litigations raised between the parties, may continue to know in
the new conflicts that arise; with the benefit of allowing the continuity of the court's criteria in the
assessment of the facts and the law. Likewise, it is highly positive for the proper development of
procedure, so that the legal assistants who intervened in the issue can continue working on the case
familiar; and, in the end, that the work that they could be doing in the cause is maintained by the respective
zone defense offices. It is worth noting that the child did not change residence, despite the game of others.
principles may formally allow the intervention of another judge, this must involve the transfer to them of the
respective actions, causing pernicious unfoldings and severely negative effects in
harm to the affected children in the caso(41).
On the other hand, the oral trial method promotes the concentration of acts in the hearing.
(we expand on orality beneath).

2.4.2. Maximum performance

Civil procedural principle sometimes called 'economy of effort' that 'tends to establish what is conducive
—sometimes with legal backing, other times solely thanks to doctrinal and jurisprudential work—to take advantage of
all corresponding potentials that a performance or procedural act carried out could have or a
procedural stage"(42).
An example of this is the 'transferred proof', that is, the proof produced in a civil or criminal process is
used in another trial, or the evidence produced in a trial whose dismissal was decreed is used in another; etc.

2.4.3. Eventuality
An act is performed temporarily alongside another so that if the latter does not produce the
expected effects, the eventual one replaces it. For example, the filing of the appeal for reinstatement(art. 238del
CPCCN) and in addition, the appeal (art. 242 of the same code).

2.4.4. Speed
The notification by ministerial law shortens the term and is the general rule in contests and bankruptcies.
(art. 273, inc. 5 at the end LCQ); all terms are peremptory(art. 273, inc. 1LCQ); the resolutions are
unappealable(art. 273, para. 3LC(43)the judge must take measures aimed at preventing the paralysis of
process (art. 36, inc. 1 of the CPCCN); etc.

2.4.5. Opportunity
In cases where no special deadline is provided, the different types of judicial rulings
They must be issued within the deadlines established in Article 34, paragraph 3 of the CPCCN.

2.5. Mediation
This procedural principle is directed at the judge so that a solution can be achieved in advance.
from the judicial dispute through the conciliation of the parties without this implying prejudgment (arts. 36,
sections 2 and 3 and 360 of the CPCCN.

The oral judgment system also promotes immediacy.(44) , but not necessarily the solution
just in case, especially if it is a matter of pure law, of complex facts, subjects
multiple, collegiate courts and/or overwhelmed by the excessive load of cases and insufficiency
structural, everything that causes delays in setting the date(s) of the hearing(s), etc.45.
Positions oral argument as provided by plenary number 109 of 11/28/2008 of the National Criminal Court
Economic whose summary reads as follows: 'When by the second paragraph of article 175 of the Procedural Code
National Penal Code—text according toLaw 26.395— it is expressed that in the event that the complaint is filed
before a judge, it must be written, the possibility of magistrates receiving complaints is not prohibited
verbales(46).

2.6. Advertising
Article 1 of our National Constitution establishes that the government adopts a representative form,
republican and federal. In the republican form of government, among several of its characteristics, is found
the publicity of government acts and the Judiciary, as an authority of the Federal Government, is not exempt
to the requirement of advertising their acts.
The San José Pact of Costa Rica in its article 8, paragraph 5 establishes publicity in the criminal process except
exceptions. It has been said since ancient times that judges speak through their sentences and then the publicity
it would comply with that republican characteristic(47).
The hearings held within the framework of a judicial process also constitute acts of government.
and regarding him theart. 125, section 1The CPCCN states that 'They will be public, under penalty of nullity, but the
the tribunal may decide, even on its own initiative, that totally or partially, they are conducted behind closed doors when the
advertising, affect morality, public order, security, or the right to privacy. The resolution, which will be
founded, it will be noted in the minutes. Once the reason for the closure has disappeared, access must be allowed to the
public.
The vast majority of court cases do not interest the public or journalism. As long as the cases
that attract interest are usually so from their inception, potentially generating a tension in the balance that
there must be a balance between the impartiality of the judge, the objectivity of the prosecutor, and the presumption of innocence of the accused
and, worsening the ills, the lack of professional suitability in legal matters and the lack of knowledge of
The reports by communicators and journalists can generate a bias among the population—
perhaps wrong—in the results of the case.
In compliance with the republican principle of government, the Supreme Court of Justice of the Nation by
Resolution 29/2008 of October 28, 2008, considered that in order to "promote the dissemination of oral trials,
guarantee the right to information in judicial cases of public significance that generate great
interest in citizenship ...(and) the courtrooms can only accommodate a limited number of
people, their transmission through audiovisual media would avoid the exclusion of those who cannot
enter the chamber," it was resolved by that agreement that:"I) In oral trials, the tribunal in charge of the
Performances will allow the radio and television broadcasting of the following events: a) Initial acts of the trial
(articles 374 and 378 of the National Criminal Procedure Code; b) Final discussion: the arguments (article 393...);
c) Reading of the sentence, in its dispositive part and grounds (article 400...). II) The Court may
establish the limitations deemed necessary in exercising the ordering powers of the process and
taking into account the particularities of the case. III) The journalistic coverage will adhere to the following rules...
Among the possible advantages of orality, we can mention(48)reduction of judicial acts with
relation to the written process; spontaneity; possibility of observing gestural attitude; possibility of
clarification at the hearing; concrete possibility of the judge's immediacy; reduction of the number of lies
of the parts(49); more publicity; etc.
Some of the disadvantages of orality are: the lack of time on the other side to prepare their rebuttal;
the eventual lack of skills of the parties and professionals regarding oral presentation;
unnecessary of the oral system in simple cases or in matters that are declared purely of law; the
Transcriptions in the minutes are not usually complete nor verbatim; etc.
Regarding our previous statement about the possible lack of qualifications of the professionals in
regarding the oral presentation, we note that it was carried out with the knowledge that the
coming from non-legal sciences, are not usually academically trained in oral skills, to be
fundamentally to the massiveness of university courses and to the limitation in the hourly load in front of
continuing needs for increases in curricular content due to ongoing changes in the
professions.
 In the event of the total implementation of the oral system in trials, it may cause initial frustration.
of those professionals that can be remedied over time and with attendance at specialized courses
oratory(50).
Given the circumstances, in our understanding, it is not advisable to adopt a radically totally oral system or
written as well as to all the different types of processes, without a detailed study of the advantages and
disadvantages of the system.

2.7. Collaboration or cooperation

This principle refers to the obligation of the parties to contribute to the clarification of the facts.
controversial during the evidentiary phase.
This procedural principle is often confused with the 'theory of dynamic burden of proof' or 'evidence
"shared" that imposes the burden of producing evidence on the party that is in the best position to do so.
to test certain facts. The criticism made against it is the reversal of the burden of proof by decision
pretorian, which grants differentiated protection to one party, generally the weak, being violated
the procedural principle of equality of the parties (which in a large number of cases is only theoretical, precisely
due to the real inequality between the parties in the dispute.
In general, it is a documentary proof that is usually in the possession of the defendant: records of various
nature, medical records(51), etc., which by virtue of procedural good faith in the process, said document
It should have been provided by the defendant in their response or counterclaim.
Due to the omission of the documentary presentation cited by the parties, its addition has been ordered.
as a "measure for better provision" (to which we previously referred)(52).

3. SYSTEMS OF IMPULSE OF THE JUDICIAL PROCESS

3.1. Legal system

The judicial process advances in the manner established by the law of procedures or regulation for acts.
What judicial officials or parties must carry out without prior court order or request. It is reduced.
the number of opportunities that this system is applied in the CPCCN.

3.2. Device System

One part of the doctrine holds, in our opinion, erroneously that the dispositive system is a
procedural principle and instead of calling it "system", they call it "principle". The same fate befalls its opposite, the
inquisitorial system, which is called the inquisitive principle. A principle should not have a characteristic of
dichotomous occurrence and for this reason, we have not included either the device system or the inquisitive one in the
section on procedural principles.
This system has been the most used in the rite codes until the sanction of new ones that contemplate
the current of judicial activism.
The predominance of the liberal ideas of our Constitution of 1853 throughout the 20th century was
diminishing. In those times, equality, freedom, and the autonomy of the will inspired the right of
fund and form, and therefore the decisions on the available rights of individuals with full capacity
could be deemed valid: resorting to judicial remedy, the presentation of the facts, the manner of their request, the
offering of the tests and their conclusion, even without waiting for a final judgment in the dispute
(normal method of process termination), through total or partial waiver, transaction, conciliation,
withdrawal and expiration of instance (abnormal modes). As for the judicial function, it was limited to overseeing
for the fulfillment of procedural guarantees, the provision of evidence, the appreciation of its
results and the legal solution of the case submitted to its jurisdiction.
In courts not supportive of judicial activism, the limit is set by the parties, the procedural burden.
It weighs on them and by the aphorism novit curiae, judicial activity cannot modify the principle.
of congruence as long as public order is not affected.

3.3. Inquisitorial system

Once the conflict that affects public order arises, the State takes active intervention, either by complaint.
from a third party, from the victim or by their notification in the exercise of state police powers, without prejudice
that the complainant does not become a plaintiff, being equally obligated to provide the evidence. The
The state accuses, instructs, and condemns. This system was used in the criminal and labor spheres and is currently
it can be said that it is mixed.

4. BASIC CONCEPTS

4.1. Jurisdiction
Jurisdiction is the power of judges to administer justice in a specific case, and for this, they must have.
with the powers of independence and impartiality not only with respect to the parties of the case but also with
relation to any ruling power that may relate to the subject submitted to its decision.
To guarantee that impartiality, furthermore, the judge must not produce the evidence, a task whose urgency is
finds at the expense of the parties in the dispositive system. For example, in the case of expert evidence.
accountable, although the judge has the title of public accountant, due to the duty of impartiality he must not
issue the expert opinion. And in the criminal process, this principle is usually referred to as 'objectivity'.
According to Duce and Riego, "this principle refers to the obligation that prosecutors have to investigate both
that which allows to establish the crime and the involvement of the accused in it, such as the facts that serve to
prove their innocence (in reality to extinguish, exempt or mitigate their criminal responsibility)"(53).
Likewise, the greater openness of the worldview and the objectivity of the magistrate contribute to the
impartiality that must be maintained during the course of the trial. The impartiality of the judge is one of the means
to ensure the equality of the parties in accordance with the law(54), to which we already referred.
On the other hand, the word 'jurisdiction' is often mistakenly given other meanings (not
legal matters(55), namely:

Jurisdiction as a set of powers of each of the branches of the State.

Jurisdiction as a kind of synonym for the sovereignty of a national State.

4.2. Competition
The jurisdiction of a judge in a specific case is the limit of their jurisdiction, imposed by reason of
the subject, the degree, the territory, original, derived, etc.
Then, a civil court judge must declare themselves incompetent if the matter is commercial; the same applies in the
case of a criminal judge from a locality if the criminal act took place elsewhere.
The Supreme Court of Justice of the Nation and the lower courts of the Nation have jurisdiction
original in all cases that pertain to points governed by the National Constitution, the laws of the
Nation, with the reservation made in inc. 12 of art. 75 of that Maximum Law and by treaties with the nations
foreigners; concerning the causes of ambassadors, public ministers, and foreign consuls; of the
causes of admiralty and maritime jurisdiction; of the matters in which the Nation is a party; of the causes
that arise between the provinces and between a province or its neighbors, against a State or citizen
foreigner (art. 116 of the National Constitution).
Additionally, the same Court exercises its jurisdiction by appeal in those cases, but in those of ambassadors,
ministers and foreign consuls and in which any province is part, it is exercised originally and exclusively
(Article 117 of the National Constitution).
The jurisdiction of the Supreme Court of Justice of the Nation by reason of the matter (arts. 116 and 117 of
the National Constitution) was more precise in theArticle 1from thelaw 48from 1863. Article 4 of the same law
determine the competence of the same Supreme Court in the appellate level. This law also establishes
the competence of national judges based on the subject matter, with successive modifications.
Article 4 of the CPCCN establishes about jurisdiction that 'All claims must be filed with a judge.'
competent, and whenever the presentation of the facts is found not to fall under the jurisdiction of the judge before
whoever is deduced must refrain from office. Once the respective resolution is accepted or executed,
the case will be referred to the judge deemed competent. In purely economic matters, not
the declaration of lack of jurisdiction ex officio will proceed, based on territorial grounds.
Articles 5 and 6 of the same procedural code establish a series of general rules to determine the
competence in civil and commercial matters and Article 21 of the LCQ, the exceptions of the forum of attraction
we will not analyze the court case that exceeds the scope of this work.
Competence is also set by other legal norms. For example, in the succession process, in
Initially, the jurisdiction is determined by the last residence of the deceased according to Article 90, section 7 and Article 3284, first.
part, both of the Civil Code.
From the combination of the concepts of 'jurisdiction' and 'competence', we can say that every judge
It has jurisdiction, but not every judge has competence in a specific case.

4.2.1. Recusal
It is the procedure that the parties have to try to prevent a judge who apparently
is involved in one of the legal grounds for disqualification established in an indicative manner in article.
Article 17 of the CPCCN applies in the case, in order to ensure the impartiality of the judge.
Article 17 of the CPCCN states: "The legal grounds for recusal shall be:

1) The kinship by consanguinity within the fourth degree and second of affinity with any of the
parts, their representatives or legal representatives.

2) Having the judge or their relatives or in-laws within the degree expressed in the previous clause, interest in
the dispute or in another similar one, or society or community with one of the litigants, attorneys or
lawyers, unless the company is a corporation.
3) The judge has a pending lawsuit with the recuser.
4) Being the creditor judge, debtor or guarantor of any of the parties, with the exception of official banks.
5) Being or having been the judge who authored the complaint or lawsuit against the recused party, or who was reported or sued.
for this prior to the initiation of the lawsuit.
6) To be or have been the judge reported by the recusant in the terms of the law of proceedings
magistrates, provided that the Supreme Court has ordered the complaint to proceed.
7) Having been the defending judge of any of the litigants or having issued an opinion or ruling or given
Recommendations regarding the lawsuit, before or after it has started.
8) The judge has received significant benefits from one of the parties.
9) Having the judge with one of the parties a friendship that is manifested by great familiarity or frequency.
in the deal.
10) Having enmity, hatred, or resentment towards the recuser that is manifested by known facts.
In no case shall the recusal proceed for attacks or offense directed at the judge after it has taken place.
started to learn about the matter.
 The possibility of procedural abuse in the challenge is increased by the fact that the list of causes
recusal legal is merely indicative, as it could be otherwise... if one party recuses
repeatedly or maliciously, it is clear that he does not do it to obtain an impartial court but
to stretch the processe"(56).
A case of improper recusal due to a cause not specified in the legal text has been the subject of a decision.
by the Supreme Court of Justice of the Nation because "the abstract opinion expressed in a
theoretical work does not constitute prejudice for the purposes of the recusal raiseda(57).

4.2.2. Excusal
It is the procedure the judge has to declare himself incompetent if he finds himself involved in
some of the legal grounds for recusal of the mentioned art. 17 CPCCN.
We advance that such legal causes, if applicable, are applicable to the expert according to theart.
466CPCCN(58).
Article 55 of the CPPN establishes grounds for disqualification:
Article 55. - The judge must refrain from hearing the case when one of the following reasons exists:
1°) If I had intervened in the same process as an official of the Public Ministry, defense attorney,
complainant, plaintiff or civil actor, or would have acted as an expert or known the fact as a witness,
or if in other judicial or administrative proceedings he had acted professionally in favor of or in
against any of the parties involved.
2°) If as a judge you have intervened or intervene in the case any relative of yours within the fourth degree
of consanguinity or second degree of affinity.
3°) If he were a relative, in the aforementioned degrees, with any interested party.

4°) If he or any of those relatives have an interest in the process.

5°) If he or she has been or has been a tutor or curator, or has been under the guardianship or curatorship of any of the
interested parties.
6°) If he or his relatives, within the aforementioned degrees, have a pending lawsuit initiated with
prior existence, or partnership or community with any of the interested parties, except for the corporation.

7°) If he, his spouse, parents or children, or other persons who are dependent on him, are creditors, debtors
the guarantors of any of the interested parties, unless they are official or established banks, under the
form of corporations.
8°) If before beginning the process they were an accuser or complainant against any of the interested parties,
the accused or reported by them.
9°) If before starting the process any of the interested parties had initiated impeachment proceedings.
10) If he had given advice or expressed his opinion extrajudicially about the process to anyone of
the interested parties.

11) If you have close friendship or open enmity with any of the interested parties.
12) If he, his spouse, parents or children, or other persons dependent on him, have received or will receive
benefits of importance to some of the stakeholders; or if after the process has started, he would have
received gifts or presents, even if they are of little value.
Article 56 delineates the concept of 'interested parties': 'For the purposes of the previous article, the following will be considered
interested parties are the accused, the victim or injured party, and the civilly sued party, although the latter do not...
constitute in part.
Continuing with procedural abuse, disqualification and excuse, along with precautionary measures and the
resources are the "three areas where the occurrence of procedural abuse is most common... and usually, the
Procedural abuse does not presuppose a violation of any legal text, but rather of some procedural principle (that of
morality, economics, etc."(59).
4.3. Addresses
This topic is closely related to notification methods and its importance is such that a
An error in the notification of a procedural act regarding the address may lead to its nullity.60,
and among other issues of utmost legal importance, it determines the jurisdiction of the authorities
public.
In the Civil Code, the different domiciles of persons (real, legal, and special) are legislated.
in articles 89 to 102. In the CPCCN, the distinction between domiciles (established and real) is found.
fundamentally in arts. 40 to 42 which we transcribe below:
Article 40. - Anyone who litigates for their own right or on behalf of a third party must constitute
legal address within the perimeter of the city that is the seat of the respective court or tribunal.
This requirement will be fulfilled in the first document I submit, or the hearing I attend, if this is the case.
first proceeding in which it intervenes. In the same opportunities, the real address must be reported.
the represented person.
All notifications by means of a notice that should not be made at the actual address will be processed at the legal address.

The contractual address established for the other party is not effective for notifications that
must be carried out at the home of the constituent
Article 41. - If the provisions set forth in the first part of the previous article are not complied with, the successive
Resolutions shall be deemed notified in the manner and time set forth in article 133, except for the
notification of the hearing to absolve positions and the sentence.
If the party does not report their real address, or its change, the resolutions that need to be notified at that address
The domicile shall be fulfilled in the place where it has been established, and in the absence of this, it shall also be observed.
the provisions in the first paragraph.
Article 42. - The addresses referred to in the previous articles will remain in effect for legal purposes.
until the conclusion of the trial or its dismissal, as long as no others are established or reported.

When the buildings do not exist, remain uninhabited, disappear, or are altered or suppressed
its numbering, and if a new address had not been established or reported, with the notification report.
the provisions of the first or second part of the previous article shall be observed, as applicable,
, of the legal or the actual address.
Any change of address must be notified by notice to the other party. While this procedure is not
it would have been fulfilled, the previous one will be considered as subsisting.

By Agreement 22/91 of the Supreme Court of Justice of the Nation, it was ordered that in the notices of
notification can only be designated as "type of address" with just two options: reported or
constituted.
By virtue of the agreed upon, in order to make notifications by notices it was resolved "...to admit from
exceptional manner, and for the purposes of arts. 140 and 141 CPCC, such qualification of 'established' at the address
social registered, this in order to give effect to the directive provided by theLaw 19.550: 11-2º..."(61).
Theart. 339The CPCCN states that: "The summons of the defendant will be made by means of a notice that will
will be delivered to the defendant at his actual address, if the latter is found... and it cannot be regarded as an address
true as reported by the defendant in the contract that prompted the trial, especially if it is about a
private document without certified signature by a notary or acknowledgment by the defendant(62).

5. NOTIFICATION METHODS
Procedural acts are notified to the parties, to third parties, and to auxiliaries of justice by various means.
means: identity card, official letter, summons, personal notification, withdrawal of the file on loan, notarial act,
telegram, documented letter, edicts and announcements by broadcasting or television.
 The notification system (both real and fictitious) allows the process to progress to the next stage.
with the effect of the procedural principle of preclusion to which we have already referred.

The topic of notifications is established in the CPCCN in Title III called "Acts".
procedural", Chapter VI, of the "Notifications".
Not all notification methods have the same level of security. The descending order is
next: personal; ID, notarial act, telegram or official letter; automatic, broadcasting or
television, and lastly, edicts(63).

5.1. Classification of notification modes

The modes of notifications, according to the CPCCN, can be classified as follows
way(64):

5.1.1. By ministerial law, automatic or by note

It is the general principle, except in cases where notification by notice is appropriate. The resolutions
judicial notifications will be made in all instances on Tuesdays and Fridays, and if one is a holiday, the
notification will take place the following day of notice, unless the file is not found in the court and in
otherwise, it is not displayed to the requester (the party, representative, lawyer, authorized person in the file,
this with some limitations) and records this circumstance in the attendance book(arts. 133y134delete

If the case is processed before the Supreme Court of Justice of the Nation, by Accord 8/2012 of
17/05/2012(65)From June 1, 2012, the Attendance Book of Lawyers (Notes Book) in support
The paper will be included in the computer program of causes of the same Court.

5.1.2. Personal
The party, their lawyer or authorized representative (with limitations) is transferred to the court and notified in the file to
review it, either voluntarily or at the request of the administrative pro-secretary or chief of office (arts.
142 and 143). It is another exception to the previous method. Judicial officials are notified on the day of the
receipt of the file in his office, and personally, the Attorney General of the Nation, the Defender
Attorney General of the Nation, the Fiscal Prosecutors of the Supreme Court, the Fiscal Prosecutors of the Chamber
and the General Chamber Defenders (art. 135 at the end).

5.1.3. Writing
By means of a certificate, notarized deed, telegram or official letter. The orders and exhortations are referred to as
by doctrine as means of communication, but they could also be written means of notification
(arts. 131 and 132 of Chapter V). This mode implies the existence of a domicile, established or reported,
under the responsibility of the party.

5.1.4. Tacit
The withdrawal of the file on loan by lawyers, representatives, and assistants will imply the
notification of all the resolutions contained therein. Also the withdrawal of copies (arts. 134 and 127);
requests that demonstrate that the pending notification resolution is known by the requester
(art. 149); presentation before the Secretariat of the Tribunal of the document which will constitute the notification of the
resolution that contains the same.
5.1.5. In the courtroom
This method of notification is provided in case of failure to establish a domicile within the area of
court (arts. 40 and 41), or by non-appearance.

5.1.6. External to the file

In the absence of knowledge of the address and/or of the name and surname of the required party, the publication of is ordered
edicts and announcements on radio and television (arts. 145 and 148).

5.2. Form of notifications

The system used by the CPCCN is the notification of resolutions. In other legislations
the writings may be notified. The above is not undermined by the circumstance that the resolution to
notify that the sending of a copy of the writing in the office is also arranged (without which, in principle, the
notification would not be valid).
The notification that must be made with the delivery of copies must be carried out by means of a summons or notarized act, without
prejudice of the regulatory authority granted to the Supreme Court of Justice of the Nation. If it is done by
document letter or telegram, copies must be transcribed in those notification mediums. If it fails
notification procedure, a request for a new notification is not necessary, and it can be attempted by another
via(art. 136of the CPCCN).
By Resolution No. 189/2007 of April 26, 2007, of the Judiciary Council of the National Judiciary
It was resolved that when accompanying a document with a copy of more than fifty pages, it should be filed.
by the court, for the same period that applies to the rest of the copies. The notified party must go to collect the
Copy archived in the secretary's office. It is advisable that the text of said certificate warns that the copies are
they are available to the party, third party, or assistant to notify in order to avoid a challenge in the terms
ofart. 120from CPCCN.
The resolutions that must be notified by official notice, except for personal or tacit notification, are
established in theart. 135CPCCNThey will only be notified personally or by notice
following resolutions:
1) The one that provides for the transfer of the claim, the counterclaim, and the accompanying documents.
with their answers.
2) The one that orders the transfer of the exceptions and the one that resolves them.
3) The one that orders the opening to evidence and designates a preliminary hearing according to article 360.

4) The one that declares the issue of pure law, unless this occurs in the preliminary hearing.
5) Those issued between the calling for the sentence and the sentence itself.
Those that order notifications, or warnings not established directly by law, inform
protective measures or their modification or lifting, or they provide for the resumption of deadlines
suspended indefinitely, or apply disciplinary corrections.
7) The provision that notifies the return of the file, when there has been no notification of the
appeal resolution or when it aims to resume deadlines suspended for time
indeterminate.
The first order issued after a file has returned from the archive of the
courts, or has been paralyzed or out of office for more than three months.
Those that have a view of settlements.
10) The one that orders the transfer of the request for the lifting of the embargo without third party involvement.
 11) The one that orders the summoning of strangers to the process.
12) Those issued as a consequence of a procedural act carried out before the opportunity that
law indicates for its compliance.
13) The definitive judgments and the interlocutory ones with the force of such and their clarifications except for
those that resolve the expiration of the evidence due to negligence.

14) The provision that denies the extraordinary resources.

15) The provision that informs the judge or court that is going to consider a case of recusal or excuse
or admission of the plea of incompetence.
16) The one that provides for the transfer of the request for expiration of the instance.

17) The one that provides for the transfer of the prescription in the cases of article 346, second and ...
third.
18) The other resolutions that are expressly mentioned in the law or determined by the Court.
exceptionally, by reasoned resolution.
Decisions made in the preliminary hearing will not be notified by official notice to those who are present.
presents or should have been found in her.
Judicial officials will be notified on the day the file is received in their office.
They must return it within the third day, under the warning of the disciplinary measures that may apply.
place.
The provisions contained in the preceding paragraph are not applicable to the Attorney General of the
Nation, to the Attorney General of the Nation, to the Prosecutors of the Supreme Court, to the
Chamber Fiscal Prosecutors, and to the Chamber Public Defenders, who will be notified
personally in his office.
The content of the notice media is stipulated in Article 137 of the same procedural code.
The notification document will be signed by the attorney representing the party that has an interest in the
notification or by the trustee66, tutor or guardian ad litem, notary, secretary or deputy secretary as applicable,
those who must clarify their signature with the corresponding seal. The submission of the documents of
notification at the Secretariat of the Court, postal office, or the request to the notary, will entail the
notification of the sponsored or represented party. They must be signed by the secretary or deputy secretary
the instruments that notify precautionary measures or delivery of goods and those in which there is no intervention
attorney, syndic, tutor or curator ad litem, except for notarial notification.
The same Council of the Judiciary by Resolution No. 188/2007 of 04/26/2007 modified the
Regulation approved by Agreement 19/1980 of the Supreme Court of Justice of the Nation(67)about the
notification regime and the functioning of the Notification Office for National Justice and
Federal.
Some provisions contain regulations that must be notified by ministerial law and others by notice.
and regarding this "It has been decided that when a provision contains a part that must be notified by
Notice and another that must be carried out in person or by notice, the first of the notifications does not occur.
while the certificate is being processeda(68).

5.3. Notifications and Internet

5.3.1. Knowledge of the procedural status of the file via the Internet
For years, the procedural status of files from several capital jurisdictions can be consulted.
by the website only the resolutions and in some cases the issued certificates. The pages
those that hold such information alert users that it does not have effects
procedural, does not ensure the content of the decisions to the interested parties and does not replace in matters of
notifications of the current procedural and regulatory standards.
 However, despite those warnings, in some cases virtual information was prioritized over
provided by the notification methods established in the procedural code(69).

5.3.2. The electronic notification system of the Supreme Court of Justice of the Nation
This system was established by Agreement 31/2011 on 12/13/2011, published in the Official Bulletin on
04/04/2012. This agreement constitutes a partial regulation of theLaw 26.685 (70)due to use
gradual of the established electronic address and that of electronic notification for cases with processing
before the Supreme Court.
All persons who litigate on their own behalf or in must establish an electronic legal address.
exercise of a legal or conventional representation if the case is being processed before the Supreme Court of Justice
of the Nation.
If this electronic address is not established, the successive resolutions will be deemed notified.
by ministerial law (first paragraph of article 41 of the CPCCN), except for the notification of the hearing to respond.
positions and the sentence.
By Agreement 3/2012 of March 27, 2012, Agreement 31/2011 "will be mandatory—applicable in a
first phase—for the cases in which the application for the appeal of complaint is processed
denial of extraordinary appeal, resolved by courts of the Judicial Power of the Nation based in
the Autonomous City of Buenos Aires, which will be presented from May 7, 2012.

6. THE TIME OF THE PROCEEDINGS

The sources of deadlines are three: legal (art. 155), judicial (art. 155), or conventional (art. 157)
as determined by law, the judge of the case or at the request of the parties and the legal assistants,
respectively.
The first of the mentioned sources has the advantage of certainty and uniformity of treatment and in
The judge, in his role as director of the process, has the authority to reduce, extend or prolong in
function of the special particularities of certain procedural acts.
The request for an extension made by the parties and the assistants does not necessarily have to be received by
the court and also its concession may be subject to conditions.
The deadline provided in the article.1171iIn order to complete the missing requirements at the end of the LCQ, it only works
at the request of a party before the judge of the bankruptcy, so if this does not exist, he cannot decide the extension ex officio
The granting of the deadline is not given to 'save omissions or forgetfulness', but to complete the
requirements that have not been able to be met at the time of the initial submission (259). The
The request for extension must be based on objective and well-founded reasons (260). The deadline is a grace period.
It is at the judge's discretion to grant it or not (261)... The authorization to supplement missing requirements
proceed to the extent that there is no attempt to meet most of the requirements, or a
substantial portion of them... because in such case the dismissal applies (262)"(72).
The widespread complaint about the length of judicial processes is well known, but "nothing is being done to expedite it.
process based on the economy of a few hours or a few days at the expense of the activity of the
professionals. They should also not set deadlines that are so short that they compromise the exercise of the
recognized powers of the parties. The delay of litigation occurs due to the delays that we could
to call them "invisibles", in the sense that they do not appear in the text of the law, but practice has forced to endure;
submission of the file...(73).
"The time for procedural acts" is regulated in articles 152 to 159 of Section One.
and Second, Chapter VIII, Title III of Book I of the CPCCN and in various articles of the Regulation for Justice
National(74), among these last ones:
Business days and non-business days. Article 2: National courts will not function during the month of January, the
Holy Week, the Sundays, those that by provision of Congress or the Executive Power are not
working days and those that the Supreme Court declares judicial holidays. The national courts of the interior of
The country will also not operate on the non-working days designated by the respective governments. All the others
Days of the year are working days.

Asueto75. Article 3. The holiday does not invalidate the day nor does it apply to judges, officials, and employees.
essential in order to cover the necessary shifts for public attention and compliance with the
procedures arranged for that date.
Judicial holiday. Art. 4. In January and during the July holiday, the national courts on holiday will handle the
matters that cannot be delayed.
Complete the concept of leave in Article 3 of the Regulations for National Justice, the Agreement without
number of 28/12/1962 which in its pertinent part states as follows:

...Article 2) Establish:
That according to current regulations (Articles 2 and 8 of the Regulation for National Justice) the
The holiday declaration by the Executive Power does not apply to the national courts.
That the holiday for such courts must be formally agreed upon by the Supreme Court, or, if applicable,
by the federal courts of appeals based in the interior.
That the mere declaration of a holiday does not disqualify the day.

In ordinary trials, the deadlines set by the procedural code we have been referring to are in
five business days unless expressly stated otherwise. In summary proceedings, all deadlines
they are three days, except for the response to the lawsuit, and the one granted to establish the appeal and
answer the transfer of the memorial, which is five days according to theart. 498of CPCCN.
We will transcribe the followingarts. 152a154from the CPCCN:
Article 152: Judicial actions and procedures shall be carried out on working days and hours, under penalty of
nullity. All days of the year are working days, except for those determined by the Regulations for the
National Justice. Business hours are those included within the schedule established by the Supreme Court.
for the functioning of the courts; but regarding the proceedings that judges, officials, or
Employees must practice outside of the office, the working hours are between SEVEN (7) and the
TWENTY (20). For the celebration of evidentiary hearings, the appellate courts may declare
business hours, with respect to courts under its jurisdiction and when circumstances demand it, the
what is the mean between SEVEN (7) and SEVENTEEN (17) or between NINE (9) and NINETEEN (19), according to
choose the morning or evening schedule.
Article 153: At the request of a party or on their own initiative, judges and courts must enable days and hours when not
It would be possible to schedule the hearings within the deadline established by this Code, or if it involved proceedings
urgent matters whose delay could render them ineffective or cause evident harm to the parties. From the
The resolution may only be challenged by means of a request for reconsideration, provided that it was a denial.

The judge who repeatedly fails to take the necessary measures to appoint will incur a serious offense.
hearings within the legal deadline.
Article 154: The procedure initiated on a business day and hour may be concluded during non-business hours without
the need for the declaration of habilitation. If it cannot be completed in one day, it will continue the next day
skilled, at the time that the judge or court establishes in the same act.
The purpose of the institution of the judicial fair habilitation can be summarized as follows
The granting of the judicial holiday is a procedural remedy that aims in principle to ensure
only the future exercise of a right, or the compliance with already decreed measures, reason for which
In order for its application to proceed, the assumptions contemplated by article 153 of the Code must be met.
Procedural, which are exceptions, leaving out of its scope all the procedures that could or should have been.
to be carried out in a timely manner... Given that the habilitation of the fair is a matter of public order, the suspension of
The judicial functions during it are mandatory for judges and those seeking justice. Therefore, their
habilitation is an exceptional measure that must be agreed upon with a restrictive criterionvo(76).
In addition to the analysis of deadlines according to their source (legal, judicial, and conventional), they can also be
studied from the perspective of peremptoriness and regarding them,arts. 155y156of the CPCCN that
We transcribe below.
Article 155: Legal or judicial deadlines are imperative; they may be extended by agreement of the parties.
manifested in relation to specific procedural acts. When this Code does not expressly establish the
the deadline for the realization of an act shall be determined by the judge in accordance with its nature
of the process and the importance of diligence.
Article 156: The deadlines will begin to run from the notification and if they are common, from the last one.
the day on which that diligence is performed will not be counted, nor the non-working days.

To know for certain whether a deadline is peremptory or not, one must refer to the rest of the provisions of the code.
of law, doctrine, and jurisprudence.
Regarding the analysis of the rest of the provisions, for example, the production time of the evidence is not
peremptory as it arises from theart.367The deadline for the production of evidence will be set by the judge, and
It will not exceed forty days. This deadline is common and will begin to run from the date of the celebration.
from the hearing provided for in article 360 of this Code, while article 384 of the same code
It establishes that 'The evidence measures must be requested, ordered, and conducted within the deadline. A
Those interested must urge that they be processed in a timely manner. If they are not, due to the omission of the
Authorities in charge of receiving them may allow interested parties to request that they be conducted before the arguments.
whenever, in time, the party that offered the evidence had informed the court of the difficulties and
necessary measures to activate production.
From the doctrine, a deadline is peremptory if upon its expiration it fatally makes future actions impossible.
production of the procedural act, and it is not peremptory if after the deadline the act can be executed or not
there is a declaration of peremptoriness.
The LCQ establishes the general rule of the peremptory nature of deadlines in art. 273, sec. 1(77)The jurisprudence
it has established that the deadlines for submitting individual and general reports in the competitions and
bankruptcies constitute peremptory deadlines, "which have a certain date of submission and from that date on..."
The other deadlines are calculated. Therefore, the reports cannot be submitted within the grace period."78.
Deadlines can be suspended or shortened at the express request of the parties, and the judges declare
the interruption or suspension of deadlines due to force majeure or serious causes that make it impossible
completion of the pending act (art. 157 of the same procedural code).
The extension of the deadline occurs if a set deadline is prolonged, whereas the enlargement happens if the judge grants it.
a period longer than the legal one according to thearticle 158from CPCCN.
Saidart. 158of the CPCCN provides"For any procedure that must be carried out within the Republic and
outside the courtroom or court seat, the deadlines set by this Code will be extended to
reason of ONE (1) day for every TWO HUNDRED (200) kilometers or fraction that does not drop below ONE HUNDRED (100).

To set the deadline for filing a complaint before the Supreme Court of Justice of the Nation, the Court
The Supreme Court of the Nation issued Agreement 50/1986, which was later modified by the Agreement
5/2010 of 22/03/2010.
The extension of the deadline based on distance has been used for other resources, for example: "It is
temporary the resource of revocation considering the extension of the deadline established by article 158 of the Code.
Civil and Commercial Procedure of the Nation, which applies due to having the demand domicile outside
from the seat of the court, for which the period referred to in Article 238 must be added to the three days
due to the distance according to the table established in agreement 50/86(79)(...that a
finalist interpretation of the forecast in examination, and in harmony with the assumptions contemplated in the arts.
342, 526, and 596 of the cited Code require concluding that the expansion in question must be considered for
all judicial proceedings in which the domicile of the person conducting them is outside the seat of
court or tribunal. This is based on the difficulties that distance itself imposes, a point that
It requires a teleological interpretation of article 158 in protection of the right to defense in trial.(art.
18, "(80).
The general principle of deadlines is that of continuity established in articles 27 to 29 of the Civil Code.
but said arrangement does not shed light on the deadlines set in hours, for example, in arts. 138; 538;
among others, of the CPCCN.
There are several regulations that set deadlines in hours, for example, Article 15 of the Amparo Law 16.986.
the appeal must be filed within forty-eight hours of notification
challenged resolution, whereby the term starts running from the time it was executed
notification(81)to the extent that it has been carried out during the operating hours of the
court. Otherwise, the grace period can be used.art. 124from CPCCN.
 The general rule is that the deadline in hours is translated into full days, to be counted from the day
immediate following the notification, provided that it is a business day.

7. JUDICIAL RESOLUTIONS
The noun 'resolution' is often used to refer to the procedural acts of the members of the body.
judicial(82)in the exercise of jurisdictional function. Those procedural acts can be classified in order
ascending progressive according to the nature of the issue they resolve, and thus such resolution can be simple,
interlocutory, final (whether from the first or subsequent instance) or homologous.
The last three mentioned are also called sentences, resolutions, orders, or rulings.
The characterization of judicial resolutions, notification methods, and deadlines.
Procedural matters are relevant when evaluating the appropriateness and timeliness of filing an appeal.
Below we present a classification of resolutions that we find useful for practical purposes.
The study of this classification will be completed with the section called 'Procedural Resources'
which we will develop later in this same chapter.

7.1. Simple resolutions

Simple resolutions do not decide any controversial issue raised in the lawsuit, but the execution does.
measures to implement a larger-scale decision; they provide a request or
incidents that do not require substantiation or are issued ex officio within the scope of the powers
agreed upon by the ritual code for each of the members of the jurisdictional body.
Note that we indicate 'members of the judicial body' as we mentioned earlier, some
simple resolutions can be subscribed by the secretary, the administrative deputy secretary, or the head of
dispatch within the limits of its limited jurisdictional powers (arts. 38 and 38 bis of the CPCCN).

7.2. Interlocutory rulings

The judge decides on an incident raised by one of the parties, a third party, or an auxiliary of justice with
substantiation and not the substance of the matter debated in the judicial process. Through these resolutions,
previous joints are resolved before the calling of cars for sentencingaart. 484of the CPCCN).

7.3. Final judgments

The judge provides a solution to the substance of the matter, puts an end to the issue, at least at that instance. These
Sentences can be classified according to the type of knowledge process in which they decide:

7.3.1. Merely declarative

Theart. 322from the CPCCN it says that "An action aimed at obtaining a merely judgment may be deducted.
declarative, to put an end to a state of uncertainty regarding the existence, scope or modalities of a
legal relationship, provided that this lack of certainty could cause actual harm or injury to the actor and this
had no other legal means to terminate it immediately. The Judge will decide ex officio and as
first providence, if the procedure sought by the plaintiff is appropriate, taking into account the nature of
the issue and the evidence presented.
 The purpose of this type of sentence is preventive; it is not necessary for there to be an accomplished harm.
It grants legal security, as it seeks the quick declaration that there is a right in favor of the plaintiff.
(positive action) or that there is no right of the defendant (negative action).
The process of amparo and the merely declarative action of certainty ofarticle 322of CPCCN" possess
similarities regarding their preventive purposes and in some procedural aspects (cf. Appeal Chamber. Contentious)
Federal Administrative, room V (5/3/1997, LL, 1997-D, 719); Gordillo, Agustín, "The declarative action of
certainty as a summary process", LL, 1997-D, 719; Gil Domínguez, Andrés, "The declarative action of
"certainty as a constitutional process", LL, 1996-A, 1445)...". And it continues lines later like this:
...for the origin of the merely declarative action, it is necessary that the following concur
aspects... there must be a 'case'. The issue should not revolve around abstract or theoretical facts, nor have
merely consultative character, or to import a merely speculative inquiry (CSJN, 04/20/1999,
Droguería Aires S.A. c. Province of Santa Fe and others). Starting from the case 'Santiago del Estero, Province of
c. National State and/or Fiscal Oil Fields" (ruling of 20/8/1985) the Supreme Court recognized
the suitability of this avenue to challenge the constitutional validity of laws, decrees, and any other legal norm
that opposes the purposes and provisions of the Constitution, although it excluded cases where it seeks the
general and direct declaration of unconstitutionality of the norms or acts of the other powers
(conf. "Edesur vs. Province of Buenos Aires", ruling of 3/17/1998)(83).
Regarding that "he did not have any other legal means" of the same article 322 of the procedural code, in the same
glossing failure it was stated that "... one cannot dogmatically uphold the thesis of the exclusion of the action
declarative due to the existence of other avenues, as its derivation causes a repeal of the legal text that does not
it is admissible as a result of the judicial interpretation of the rules... The unrestricted application of the
The procedural requirement of the prior administrative claim and the exhaustion of the administrative route could imply
put obstacles and difficulties to access to justice, which does not align with the preservation of the guarantee of
the defense in trial and effective judicial protection, principles supported as human rights in the
International conventions that have constitutional hierarchy (cf. "Declarative action, exhaustion of
the administrative pathway and non-retroactivity of the administrative act", Editorial Note, LL, 2002-A, 809; in
similar sense, CNCiv., room H, 8/16/2001, "Gilardone, Leonor and another vs. G.C.B.A."
From the above, it can be said that the resolution of theart. 36from the LCQ participates in the elements of the
merely declarative sentences, since the bankruptcy judge recognizes a property right to the claimant
creditor against the debtor in a short period, but does not guarantee the collection of that claim. That resolution is
subject to review through the promotion of a review incident or by fraud, according to articles 37
and 38 of the same bankruptcy regulation.

7.3.2. Constitutive Sentences

Through these sentences, a right is declared, a pre-existing legal status is changed and
constitute a new one, in principle, without retroactive effects. For example, "the divorce decree or that of
adoption are constitutive of the status of divorced or adopted, respectively.e(84)Also, division
of the common thing, dissolution of the society, etc.

7.3.3. Declarative sentences

They are dictated in declarative actions in which the existence or non-existence of the
budgets that are the basis of the so-called legal relationship with retroactive effects. For example:
the triumph in a challenge of the affiliation contained in a judgment declares that it did not exist
a legal relationship, in the case of kinship from conception and the declaration of heirs," since
the purpose is to declare the existence of the prerequisites that are the basis for the right to inherit
part of those who are included in it, and in that statement exhausts its content"(85).

7.3.4. Conviction Sentences

 They make a right certain and impose an obligation on the defeated party, which if omitted, enables enforcement.
forced through the process of enforcement of sentences(art. 499of the CPCCN). The aforementioned obligation
it may consist of the payment of a liquid sum (art. 502); of executing (art. 512); of doing (art. 513); not
to do (art. 514); etc.
In the case of enforcement of judgments from foreign courts, it is necessary to previously comply with the
requirements and guarantees established in articles 517 and 518 of the same procedural code (the handling of which would require
an additional chapter).

7.3.5. Homologating sentences

Theart. 162The CPCCN refers to homologous rulings as follows: "The rulings that are issued in
the assumptions of articles 305, 308, and 309 will be issued in the manner established in articles 160 or
161, depending on whether they approve or not the withdrawal, the transaction or the settlement.
Then, in the face of a homologation, the judicial act must meet the requirements of article 160 of the same.
regulation that establishes that: "Simple provisions only aim, without substantiation, at the development of
process or arrange acts of mere execution. They do not require other formalities than their written expression,
indication of date and place, and the signature of the judge or president of the court, or of the secretary, as applicable. The lack
substantivation implies the absence of bilateralism, of the procedural principle of contradiction, reason why
The homologation car only guarantees the authenticity and legitimacy of the act to be homologated. The diligence
judicial citation of a party for the signature recognition of the document submitted to the jurisdiction
lacking a certain date, does not constitute a legitimate cause for recusal.
In case of non-homologation, a contradictory process will be established that will result in a resolution.
dictated in the terms of the aforementioned article 161 which states: "The interlocutory rulings resolve
issues that require substantiation, raised during the course of the process. In addition to the requirements
statements in the previous article must contain: 1) The grounds; 2) The express, positive decision
and addresses the raised issues; 3) The ruling on costs
In the event of a lack of agreement between the parties regarding a pre-existing legal relationship, any
either of them or both can request the issuance of a determinative or specific sentence. For example, to
the determination of the amount of alimony in a divorce trial, or for the establishment of a visitation schedule afterwards
the custody of the minor children has been determined.
If there is an agreement between the parties, the judge will ratify the agreement reached unless there is evident harm.
for minors.
It is important to highlight the difference in the characteristics of homologous sentences in civil matters and
commercial (in singular trials) with those of the homologation resolution of the proposed bankruptcy that must
fulfill extensive requirements established in theart. 52 of the LCQ, precisely because it is a competition
budget for a universal trial(86).

7.4. Other types of judicial sentences

In addition to the traditional classification addressed in the previous lines from various perspectives—
Constitutional Procedural Law among them—and with multiple purposes, they have appeared—gradually, but
incessantly—new types of judicial resolutions that deviate from the classic model...(87)Son
they are fundamentally anticipatory and exhortative resolutions.

7.4.1. Anticipatory sentences

They are issued in response to a request for an innovative precautionary measure that 'generates a sort of declaration of
rights, provisional and revocable, favorable to the claimante"(88)The plausibility of the must be accredited
right and provide a real counter-guarantee.
7.4.2. Exhortatory Sentences
They can be issued in cases where the application of law is demanded, fundamentally.
Constitutional, in a sort of diffuse control of constitutionality before infralegal norms that do not
adjust to the current standard of constitutionality, reinforced by international agreements on rights
humans. Depending on the case, they may constitute a sample of judicial activism.(89).

8. Procedural Resources
The concept of resource must be generic due to the diversity of objectives of each of the resources.
legislated in the various procedural regulations. For this reason, in this section we will limit ourselves
for reasons of space, to the comment of some of those included in the CPCCN, which is why, every time
an article is cited without clarification, it corresponds to the CPCCN.
The procedural resource is the means by which the party, fulfilling the relevant requirements, can obtain
that the same judge or another court, depending on the cases, modify, change, review, revoke or annul the
resolution that challenges. It may also aim to establish the applicable legal doctrine
(resource of inapplicability, art. 300), or that a resource filed and not granted is awarded (which for
resource denied, art. 282)(90)".
There are various doctrinal classifications of the resources that exceed the purposes of this work.
In this section, the importance of the concepts outlined will undoubtedly be evidenced.
previous lines, among them, type of resolution, means of notification and deadlines.

8.1. Appeal for Reinstatement

The origin and purpose of this resource can be found in article 238 which states: 'The resource of
The replacement will only proceed against simple orders, whether or not they cause irreparable harm, in order to
that the judge or court that issued them revoke them for contrary authority." We note that in principle
only in relation to the resolutions issued in the first instance, since in the following instance
clarification resources are accepted for the correction of errors. If the errors were related to identity, it could
to appeal the resource of repossession filed against a resolution of a higher instance. The above, except
Regarding Article 260, section 5, we understand that by fulfilling the appeal in that case functions that in
The principles are specific to the lower instance, as well as the procedural resolutions issued by the president.
which are subject to the appeal process.
It is debated whether this procedural remedy is applicable in cases of errors in the procedure, as for
a part of the doctrine, the appeal for reinstatement implies the waiver of nullity. In our opinion, if the
A resource for reconsideration is filed without the appeal (which includes nullity) as subsidiary.
241 inc. 1) due to the principle of preclusion and the peremptoriness of deadlines, the appellant has waived the
nullity resource.
The appeal resource can only be accumulated in the event that the simple provision causes a
irreparable harm to the appellant (Article 242, paragraph 3). Both appeals must be submitted in the form
jointly, founding the one for replacement and in the appeal, it refers to the arguments presented in the
mentioned first. If the appeal for reconsideration is dismissed, the appeal must be granted.
subsidiary, as long as the resolution is not final (we expand in the section dedicated to appeals)
appeal).
The deadlines and formal requirements are defined by article 239: "The appeal shall be filed and based in writing.
within THREE (3) days following the notification of the resolution; but when this is issued in
a hearing must be verbally interposed in the same act. If the appeal is manifestly
inadmissible, the judge or court may reject it without any further procedures.
In the event that a resolution is issued as a result of a request from one of the parties, the
another party may file such a resource. If the revocation is granted, the other party has the right to
to appeal (art. 241, inc. 2). If the resolution was issued at the request of one party and does not attack the rights of the other,
No transfer will be arranged to the latter (art. 240).
The deadline for issuing the resolution established in the procedural code is three days if the appeal was
interposed in writing and in the act, if it was done in a hearing (art. 240), being able to form an incident by
separated to substantiate and resolve the appeal.
As we mentioned earlier, the three-day period must be added to the one that corresponds according to the distance.
set by Agreement 5/2010 in relation to article 158 as resolved by the Supreme Court of Justice of the
Nation in cars "Pescasur S.A. and another v. Province of Santa Cruz".
The judge ex officio may revoke a simple unnotified resolution for having incurred in an error, but
not in the case of a consented one.
A resolution can cause an irreparable burden for one party and not for the others. The
resolutions issued following a request for an advance on expenses by the expert(91)son
simple actions that may or may not produce an irreparable burden. For example, in principle, the denial of the
advance of expenses may impose an irreparable burden on the expert who must advance from their own
pecuniary funds with probabilities, sometimes remote, of recovery at the time of collecting their fees (in
general, after the passage of several years) and does not impose any burden on the parties.
The dismissal of the appeal for reconsideration is not subject to appeal if it was not accompanied in a timely manner with the
of appeal.

8.2. Appeal resource

The appeal is the procedural remedy through which the party (in a broad sense) seeks to have the court
The superior modifies or revokes the resolution issued by the inferior. It includes the declaration of nullity.
the recurrent must fulfill the procedural burden of substantiating their request, whether by means of a brief if the
the resource is granted in relation, or expression of grievances if granted freely.
It is a right of the party, the third party, and the assistant and in any case (including the ruling that regulates
fees) an obligation for public administration lawyers, whether centralized or
decentralized and of the judicial syndic(92).
This resource requires the ability to access the double instance that in our country 'has not been or is not
considered a constitutional guarantee of civil procedures93, nor of another type except in the
criminal, due to a mistaken literal interpretation of article 8, section 2 "h" of the American Convention on
Human rights that may have been legitimate in the early times of that convention but not thereafter
some of the background of the Inter-American Court of Human Rights from several years ago, among them:
the ruling of "Panel Blanca (Paniagua Morales and others) v. Guatemala", 03/08/1998, which in its paragraph
149 the Court clarified that "[in] matters concerning the determination of [the] rights and
obligations of a civil, labor, tax, or any other nature, Article 8 does not specify guarantees
minimal, as it does in numeral 2 when referring to criminal matters. However, the concept of due
guarantees also apply to those orders and, therefore, in that type of matter, the individual has rights
also to the due process that applies in criminal matters (Exceptions to the exhaustion of remedies
interns(46.1, 46.2.a and 46.2.bCAmerican Convention on Human Rights). Advisory Opinion
OC-11/90 of August 10, 1990. Series A No. 11, para. 28)
the ruling of the 'Case of the Constitutional Court v. Peru', 31/01/2001, in its paragraphs 69 and 70: 'Although
Article 8 of the American Convention is titled "Judicial Guarantees"; its application is not limited to the
judicial resources in the strict sense, "but the set of requirements that must be observed in the instances
"procedural" so that individuals can defend themselves adequately against any type of act
emanating from the State that may affect their rights. The Court has already established that despite the fact that
the cited article does not specify minimum guarantees on matters concerning the determination of the
rights and obligations of a civil, labor, tax, or any other nature, the list of guarantees
the minimums established in numeral 2 of the same provision also apply to those orders and, therefore, in
in such matters, the individual also has the right, in general, to the due process that applies in
criminal matter.
And if there was still any doubt, Advisory Opinion 18/03(94) she cleared it up with the reiteration that the
Due process of law refers to the set of requirements that must be observed in legal proceedings.
so that people are in a position to adequately defend their rights against any act
of the State within a process of any nature: civil, labor, tax or of any other kind.
This reveals that due process affects all these orders and not just the criminal one,
párrafos 123 y 124.
Thus, the limits on access to the second instance ofart. 242the CPCCN are violations of the Convention
American on Human Rights, which has been incorporated into our National Constitution since
1994, they are also unconstitutional.
According to Article 242, the appeal resource proceeds, unless otherwise provided (we expand below),
only regarding:
1. The final sentences.
2. Interlocutory judgments.
3. Simple provisions that cause harm that cannot be repaired by the final judgment.
Final judgments and other resolutions, regardless of their nature, shall be unappealable.
they are dictated in processes where the questioned amount is less than the sum of TWENTY THOUSAND PESOS
$20,000.
Annually, the Supreme Court of Justice of the Nation will adjust, if applicable, the established amount.
in the previous paragraph.
For the purposes of determining the non-appealability of a judgment or ruling, the amount in effect will be taken into account.
on the date of filing the complaint or the counterclaim. If at the time of issuing the sentence it
recognized a sum lower by TWENTY PERCENT (20%) than that claimed by the parties, the
The irreversibility will be determined in accordance with the capital that is ultimately recognized in the sentence.
This provision shall not apply to food proceedings and those seeking eviction.
real estate or in those where the application of procedural sanctions is discussed.
The finality of the amount established in this article does not include the appeals filed.
against the fee regulations.
The promised expansion: the CPCCN establishes the list of unappealable resolutions or straightforwardly
irretrievable(95)that are scattered throughout his text. For example: the resolution by which the judge
declares competent in the inhibition process (art. 9º); the resolution issued for the challenge of the
secretary for the reasons of art. 17 (art. 39); the resolution that deems a document not submitted
having to be signed by a lawyer, it was not (art. 57); the resolution that admits the intervention of third parties
(art. 96); the resolution that maintains the attachment without third-party intervention, leaving only the interested party to file the third-party intervention

(art. 104); the resolution ordering the reconstruction of a lost file (art. 129); the
resolution that suspends the main process due to the existence of a debate in an incident (art. 176);
resolutions in the accumulation of processes (arts. 191 and 194); the resolution that establishes the procedure to
to proceed in cases of determining the amount of damages due to an abusive precautionary measure (art. 208);
the mentioned authority to print the incidental procedure to the appeal for reinstatement (art. 240); non-appealability in
function of the amount (art. 242); dismissal of the expiry of instance (art. 317); the order by which
it determines the class of process (arts. 319 and 521); the resolution that decides that the lack of standing for
acting is not manifest (art. 353); the resolution that admits the new fact (art. 366); resolution on the matter
probationary, being able to re-edit the matter before the court (art. 379); dismissal of the charge of negligence
regarding the evidence of positions, of witnesses or expert witnesses, before the date of the hearing or of
deadline for its submission, respectively (art. 385); ex officio modification of the
positions regarding order and its terms, without altering their meaning or the elimination of the
manifestly useless (art. 411); the resolution issued in the challenge of the expert but which can be
considered by the court when resolving the main issue (art. 467); all resolutions issued in the proceedings
summary judgments except for resolutions on precautionary measures and the final one (art. 498, para. 6); the resolution
that rejects exceptions in the execution of sentences for failing to attach the documents that
they certify (art. 507); the assessment of damages for failure to comply with the judgments to do, not to do or to
delivering items in the execution processes (arts. 513 to 515); setting the deadline for the debtor to pay
in the preparation of the enforcement proceeding (art. 525, inc. 3º); etc.

Article 243 states that 'The appeal will be granted freely or in relation; and in one or the other'
case, in fact suspensive or devolutive. The appeal against the final judgment in the ordinary trial and in
The summary will be granted freely. In other cases, only in relation. It will always proceed in effect.
suspensive, unless the law provides that it is in the devolutive. The resources granted in relation
they will be, likewise, in deferred effect, when the law so provides.
Now article 244: "In the absence of contrary provisions, the deadline for appeal shall be FIVE (5) days."
Any fee regulation will be subject to appeal. The appeal must be filed and may be based on
within FIVE (5) days of the notification.
In the event of an appeal regarding fees, the submission of a brief is not mandatory.
Some professionals include the memorial when filing the appeal, which is different from what
set out in the second paragraph of art. 245, although in order to reduce unnecessary formalities it is usually
do not return that written document to its presenter.

Article 245: "The appeal shall be filed in writing or verbally. In the latter case, it shall be made
It should be noted by diligence that the secretary or the first officer will record it in the file.

The appellant shall be limited to the mere filing of the appeal and if this rule is breached, it will be ordered
return the written document, with a prior annotation that the secretary or the first officer will place in the file, with
indication of the date of filing the appeal and of the address that may have been established, if applicable.
Art. 246: "When the appeal is proceed in relation without deferred effect, the appellant must establish the
resource within FIVE (5) days of being notified of the resolution that agrees to it. From the document that is submitted
it will be communicated to the other party for the same period. If the appellant does not submit a brief, the first instance judge
the instance will declare the resource void.
If either party intends that the resource should have been granted freely, they may request,
within THREE (3) days, for the judge to correct the error.
The parties may make the same request if they intended that the freely granted remedy should have been
to grant oneself in relation.

These rules will apply without prejudice to the provisions of article 276.
Article 247: "The appeal in deferred effect shall be based, in ordinary and summary proceedings, on the opportunity
of article 260, and in execution proceedings along with the filing of the appeal against the
sentence.
In the execution processes of the sentence, if the contested resolution is later than the mentioned one
Article 508, the appeal shall be based on the form established in the first paragraph of Article 246.
In ordinary and summary proceedings, the Chamber will decide prior to the final judgment.
Regarding the appeal resource filed subsidiarily with that of review (art. 248) we
we refer to what has been stated for the latter.

Art. 249: "When the court that is to hear the appeal is located in a different locality, and
he will proceed freely, in the writing or proceeding referred to in Article 245, the appellant, and the appellee
Within five days of the resource being granted, they must establish a residence in that locality.
If the resource proceeds in relation, the parties must establish a domicile in the mentioned writings.
in article 246.
In both cases, the party that has not complied with the requirement imposed by this article shall remain
notified by ministry of law.
Article 250: "If the appeal proceeds with a suspensive effect, the following rules shall be observed:"
1) If the ruling is final, the file will be sent to the chamber and a copy will remain in the court.
the relevant one, which must be presented by the appellant. The provision granting the appeal will indicate
the pieces that have to be copied.
2) If the ruling is interlocutory, the appellant shall present a copy of what is indicated from the file and of
what the judge deems necessary. The appellant shall have the same right. Such copies and the memorials will be
referred to the chamber, unless the judge considers it more expedient to retain them for the continuation of the trial
and send the original file.
The appeal will be declared void if, within the fifth day of being granted, the appellant does not submit the.
copies mentioned in this article, and that were under their responsibility. If the appellant does not do so, it will be disregarded.
of them.
 Then, the appeal resource is granted freely in cases of final judgment in the
ordinary process and in relation to whether the ruling is not final in ordinary judgment and in any type of
resolution in summary, executive and special proceedings.
If the concession has been granted freely, the appellant must present the statement of grievances before the court.
within ten days from its notification (art. 259).
If it was in relation, two alternatives are presented:
• Without deferred effect: in ordinary proceedings, against an appealable resolution that is not final, except in cases
specified in the ruling. The memorial is presented in the first instance within the five
days from the notification by note of the resolution that grants the appeal (art. 246).

• With deferred effect: in ordinary proceedings, for example, imposition of costs and regulation of fees, and not
it is immediately raised to the chamber. In the execution of sentences, it is the typical form of concession of
this resource. In ordinary trials, it is based on the second instance within five days of
notified by note of the order of the appeal (if the trial had prior registration in the chamber) or by summons
through which it is notified that the appeal has placed the case in the secretariat (if the trial did not have prior filing) and
in those of execution within the same timeframe but from the notification of the grant of the resource (arts. 246 and 247).

If the memorial is not submitted in a timely manner or is not submitted at all, the judge of the first
the instance must declare the appeal deserted, since if it does not do so, the chamber will declare it wrongly granted
resource, having resulted in a useless jurisdictional expenditure. From this foundation, notice is given.
to the other party, who can respond (art. 246).
The memorial or expression of grievances must contain the reasoning on which the appellant bases their
criticism, which must be specific and reasoned about the parts of the ruling that it considers incorrect. If not having
With these characteristics, the resource can be declared deserted and the challenged ruling becomes final (arts. 265
y 266).
The elevation to the chamber requires that the file be in conditions for that purpose, which are
reviewed by the administrative prosecretary, including the indication of the corresponding foliation to the
appealed resolutions, the resources filed; their concessions; notifications; the interveners (parties,
third parties, public bodies); if the chamber was notified and if so, the name of the room and page;
existence of other files related to the resolution of the litigation; etc.

8.3. Complaint for denied appeal

The complaint must be raised directly before the higher court that denied the appeal. Before the chamber,
if it is about the denial of an appeal resource and before the Supreme Court of Justice of the Nation, in
the presumed rejection of an ordinary or extraordinary appeal.
It does not constitute a proper remedy, but a procedural remedy that preserves the right of
defense in trial and due process. It lacks suspensive effects, unless the superior decides otherwise.
On the contrary. In practice, with the submission of the file, the processing of the file is de facto suspended.
Its origin, requirements, and deadlines are established in thearts. 282 a287from CPCCN that
We transcribe the following to facilitate the reading of these lines.
Art. 282: If the judge denies the appeal, the party that considers itself aggrieved may appeal directly.
in a complaint to the chamber, requesting that the denied resource be granted and ordering the referral of the
file.
The deadline to file the complaint will be FIVE (5) days, with the appropriate extension for reason
from a distance, in accordance with the provisions of article 158.
Article 283: The admissibility requirements of the complaint are:

1) Accompany a simple copy signed by the attorney of the appellant:

a) of the document that gave rise to the appealed resolution and of those corresponding to the processing, if
this would have taken place;
b) of the contested resolution;
 c) of the written submission of the appeal and, if applicable, of the revocation appeal if the appeal
would have been filed in a subsidiary manner;
d) of the ruling that denied the appeal.
2) Indicate the date on which:
a) the appealed resolution was notified;
the appeal was filed;
the denial of the appeal was notified.
The chamber may require copies of other pieces it deems necessary and, if indispensable,
submission of the file.
Once the complaint is filed properly, the chamber will decide, without any substantiation, whether the appeal has been accepted or not.
poorly denied; in this last case, it will be arranged to be processed.
While the court has not granted the appeal, the course of the proceedings will not be suspended.

Art. 284: The same rules shall be observed when questioning the effect with which it was granted.
the appeal resource.
Article 285: Complaint for denied remedies before the Supreme Court. When a complaint is filed for
denial of resources before the Supreme Court, the presentation, duly substantiated, must be made
within the period established in the second paragraph of article 282.
The Court may dismiss the complaint without further proceedings, require the submission of copies or, if necessary,
the referral of the file.
If the complaint is due to the denial of the extraordinary appeal, the Court may reject this appeal in the
assumptions and form provided for in article 280, second paragraph. If the complaint is declared admissible and
if the sentence is revoked, the application will be theArticle 16of thelaw 48.
As long as the Court does not grant the complaint, the course of the process will not be suspended.

Article 286: When a complaint is filed before the Supreme Court of Justice, due to denial of the
extraordinary resource, the amount of five thousand pesos ($ must be deposited in the order of that court
5,000)(96). The deposit will be made at the Bank of judicial deposits.
Those who are exempt from paying stamp duty or court fees, in accordance with the
provisions of the respective national laws.
If the deposit is omitted or made insufficiently, the appellant will be informed that they must
integrate it within FIVE (5) days. The order will be notified personally or by
identification card.
Art. 287: If the complaint is declared admissible by the Court, the deposit will be returned to the interested party. If
If it were dismissed, or if the expiration of the instance were declared, the deposit will be lost.
The Court will dispose of the sums thus collected for the provision of libraries for the courts.
nationals from all over the country.

The denial of the complaint is not appealable, nor is the declaration of abandonment. If the appeal
it is granted, she loses jurisdictional authority over the issues in crisis, but not in relation to
others.
It is said that the complaint must stand on its own and therefore the formal requirements or prerequisites
for its admissibility of art. 283, not being valid the references to other pieces made in the
file, those that, if applicable, must be included in the presentation.
The principle of prevention of the court is maintained. If there was no prior referral to the superior, the court that
It must be drawn.
The resolution of the camera that deserves the complaint can present three alternatives:
1) The granting of the appeal and the request for the files, in the event that this has not been granted.
previously requested, to resolve said appeal.
2) The statement of bad denial of the appeal that can in turn present the following
situations:
 If the file is already in the chamber at its request, the appellant must submit
the memorial in the appeal case in relation to the file is placed in the secretariat for expression
of grievances in the case of free appeal.
If the file is not yet in the chamber, and the effect is in relation, send the documents to the first.
instance for the purposes of art. 246 and in the case of free, must request the file in order to
comply with the procedure of article 259.
3) The declaration of denied appeal which seals the fate of the appeal.

Extraordinary appeal
Its origin and substantial regulation are found in thearts. 14a16from theLaw 48 of 14/09/1863. On
procedure, in thearts. 280a287of the CPCCN.
Proceed in cases of rulings contrary to federal law. It is not relevant, in principle, in
issues of fact, evidence, and procedural and common law that are foreign, in principle, to the federal remedy.
Notwithstanding the above, the extraordinary remedy for disqualification has been allowed "as an act
jurisdictionally valid the ruling that declares the unconstitutionality of thearts. 21y22of theLaw 24.557sine
a majority of votes in accordance with article 109 of the National Justice Regulation, since
there is a serious violation of the legal norms that determine the manner in which they must be issued
definitive sentences from the national appellate courts, with the Supreme Court needing to intervene.
National Justice to correct ita(97)In this case, the judgment was declared null and void, ordering the
dictation of a new one.
According to Carrió, extraordinary resources can be classified into common and exceptional. They are
common the inapplicability of the law (which we do not comment on due to space limitations) and the
proper federal extraordinary appeal. The exceptional extraordinary resources by sentence
arbitrary, due to institutional gravity or the per saltum.
Access to the Supreme Court of Justice of the Nation through extraordinary appeal for arbitrary judgment
(jurisprudence product) is restricted, with some of the causes being to achieve a ruling
favorable with such resource, the commission of an excess of formal rigor that harms constitutional guarantees;
omission in the previous instances to rule on the federal issue that was raised by the litigant
in the correct forms and opportunities, etc.
Regarding the extraordinary remedy for institutional gravity, we refer to the text of Article 280 that
we transcribe:
Art. 280: Calling of cars. Rejection of the extraordinary remedy. Memorials in the ordinary remedy.
When the Supreme Court considers an extraordinary appeal, the acceptance of the case will imply the
call for cars. The Court, at its sound discretion, and solely invoking this norm, may
reject the extraordinary remedy, for lack of sufficient federal grievance or when the issues raised
insignificant or lacking in significance results..."(98).
With reference to alper saltum, we can say that it also was born praetorianly, then it was incorporated.
in article 195 bis of the CPCCN and later, by theart. 7of theLaw 25.587of Public Emergency and Reform
delete
Exchange Regime99It was repealed and reintroduced as article 257 bis, by law 26.790 published in
B.O. on 12/4/2012.
Returning to the extraordinary remedy itself, it can be granted partially.
the extraordinary appeal against the denial of the ordinary one is admissible (which due to space limitations
we do not analyze) for not being a definitive sentence. Its processing does not in principle suspend the processing
of the process.
The Court can:
The complaint shall be dismissed regarding the institute the first part of art. 280.
Request the submission of the file.
Accept the complaint without issuing a ruling on the merits.
 • Decide on the merits but not on the admissibility of the complaint or decide on both
issues.
The deposit must be made in its entirety (unless acting with the benefit of litigation without costs and others.
exemptions of thelaw 23.898) within the same period for filing the complaint, and the bank receipt
It must be added with the complaint.
If the complaint is accepted, the amount of the deposit is refunded, which does not happen in the case of
dismissal, withdrawal or expiration of the instance.
The extraordinary remedy and the complaint for its denial were regulated by the Supreme Court of
Justice of the Nation through Agreement 4/2007 of 03/16/2007 with a series of rules that we transcribe
next:
Rules for the filing of the extraordinary federal appeal:
1°. The extraordinary federal appeal must be filed using a written document no longer than
forty (40) pages(100)of twenty-six (26) lines, and with clearly legible font size (not smaller than
of 12).
The same restriction will apply to the response written in the transfer provided for in theart.
257of the Civil and Commercial Procedural Code of the Nation.
2°. It will contain a cover sheet on a separate page in which only the following must be recorded.
data
a) the purpose of the presentation;
b) the precise wording of the case file cover;
c) the name of the person who signs the document; if acting on behalf of others, the names of those they represent,
and that of the sponsoring lawyer, if there is one;

the address established by the presenter in the Federal Capital;(101)

e) the indication of the role in which the presenter or their representative intervenes in the lawsuit (as plaintiff,
defendant, third party cited, etc.
f) the individualization of the decision against which the appeal is filed;
g) the mention of the body, judge, or court that issued the challenged decision, as well as those that
had intervened previously in the lawsuit;
h) the date of notification of such ruling;
i) the clear and concise mention of the issues raised as being of federal nature, with a simple citation of the
norms involved in such matters and the precedents of the Court on the subject, if any;
as well as the synthetic indication of what the declaration is about the debated point that the
recurring seeks to obtain from the Court; no issue that has not been included will be considered
here
j) the citation of the legal norms that confer jurisdiction to the Court to intervene in the case.
3°. In the following pages, it should be presented, in successive chapters and without incurring in repetitions.
unnecessary
a) the demonstration that the contested decision comes from the superior court of the case and that it is
definitive or comparable to such according to the jurisprudence of the Court;
b) the clear and precise account of all relevant circumstances of the case that are related to the
issues that are invoked as federal in nature, indicating the moment at which they
they first presented these issues, of when and how the appellant introduced the matter
respective and, where applicable, how he maintained it afterwards;
c) the demonstration that the challenged ruling causes the appellant a personal burden,
concrete, actual, and not derived from its own performance;
the refutation of each and every independent basis that supports the decision
appealed in relation to the federal issues raised;
 e) the demonstration that there is a direct and immediate relationship between the invoked federal regulations
and what has been debated and resolved in the case, and that the challenged decision is contrary to the invoked right
by the appellant based on those.
Rules for filing a complaint for the denial of the extraordinary federal appeal:
4°. The complaint for denial of the extraordinary federal appeal must be filed through
a written document not exceeding ten (10) pages of twenty-six (26) lines, and with font size
clearly legible (no smaller than 12).
5°. It will contain a cover page on a separate sheet in which only the data must be recorded.
provided for in article 2, paragraphs a, b, c, d(102)and, moreover:
f) the mention of the body, judge, or court that issued the resolution denying the extraordinary appeal
federal, as well as those who have intervened previously in the lawsuit;
g) the date of notification of said ruling;
h) the clarification of whether the extension of the deadline provided in theart. 158 of the Code
Civil and Commercial Procedure of the Nation;
i) where applicable, the demonstration that the appellant is exempt from making the deposit provided for in theart.
286of the Civil and Commercial Procedural Code of the Nation.
6°. In the following pages, the appellant must refute, in a concrete and reasoned manner, each and every
one of the independent grounds that underlie the denial resolution.
The document will have that sole purpose and no issues that have not been introduced can be included in it.
raised in the extraordinary remedy.
7°. The written submission of the complaint must be accompanied by clear simple copies.
legible, of:
a) the decision challenged by the federal extraordinary appeal;
b) the written submission of this last appeal;
c) the written response to the transfer provided for in theart. 257of the Civil and Commercial Procedural Code of
the Nation;
d) the denial resolution of the extraordinary federal appeal.
With the addition of the copies referred to in this article, the defects of...
justification in which the appellant would have incurred by filing the extraordinary appeal.
General observations.
8°. The appellant must make a transcription—within the text of the document or as a separate annex—
of all the legal rules mentioned that are not published in the Official Bulletin of the Argentine Republic,
indicating, in addition, its validity period.
9°. The citations of court rulings must be accompanied by the mention of the volume and the page of its
publication in the official collection, unless they have not yet been published, in which case their date will be indicated
and the cover of the file in which they were issued.
10. The grounds for the extraordinary appeal cannot be supplemented by a simple reference to what
exposed in previous performances, nor with a generic and schematic statement that does not allow for the full consideration
understanding of the case that was submitted for consideration by the judges of the cause.

11. In the event that the appellant has not satisfied any or some of the requirements for the
interposition of the federal extraordinary appeal and/or the complaint, or having done so inadequately, the
The court will dismiss the appeal by merely mentioning the relevant regulatory norm, unless,
in their sound discretion, the noncompliance does not constitute an insurmountable obstacle to admissibility of
the recursive claim.
When the Court dismisses those claims for such a reason, the respective actions shall be deemed
unproductive. Similarly, judges or courts should proceed in the same way when denying the grant of
extraordinary resources for not having met the requirements imposed by this regulation.
In case of non-compliance with the requirement to establish residence in the Federal Capital, the following will be applied
arranged by theart. 257of the Civil and Commercial Procedural Code of the Nation.
 12. The regime established in this regulation shall not apply to the resources filed in an informal manner.
of the poor"(103).
Below is the model of the cover referred to in article 2 of the aforementioned regulation.

FEDERAL EXTRAORDINARY APPEAL

(Cover article 2 of the Regulation)
File
Case number: ......
Cover: ........

Intervening courts
Court of origin: Court ...
Court that issued the appealed decision: National Chamber of Appeals ................, Room ....
Consign other intervening courts: .....

Presenter's information
Last name and first name: .............

Tomo: ...folio: ....

Established address: .................

Character of the presenter

Representation: ..............
Last name and first name of the representatives: .........
Sponsoring legal representatives:

Last name and first name: .............

Tomo: ... folio: ......

Last name and first name: .....................

... page: ...

Established address: ...........

Challenged decision
Description: ....................
Date: ......
Location in the file: ...............
Notification date: .................

Purpose of the presentation

Norm that confers jurisdiction to the Court:arts. 14a16from theLaw 48............
Opportunity and maintenance of the federal issue:......
Issues raised:
......................

Expose what decision you intend from the Supreme Court of Justice of the Nation: ..................
Date: ........................
Signatures:......................................

Remember that by Agreement 31/2011, those who litigate, in their own right or as representatives, must
establish electronic domicile. This Agreement was complemented by 3/2012 which basically establishes
that the Electronic Notification System regulated by Resolution 31/2011 will be
mandatory application for the cases in which the written complaints for appeal are processed
denial of extraordinary resource resolved by the courts of the National Judiciary
in the Autonomous City of Buenos Aires as of 07/05/2012. It also ordered that the established address
Article 5 of Acordada 4/2007 should be understood as electronic domicile. The resources
extraordinary events that occur after the January 2013 fair must also establish residency
electronic.
Lastly, Resolution 38/2011 of December 29, 2011, stated that all submissions made
before the Supreme Court of Justice of the Nation comply with the A4 size paper format requirement,
even for complaints about the denial of resources before the same Court, complementing the text of the
Agreement 4/2007.
CHAPTER IV

THE ROLE OF THE ACCOUNTING EXPERT IN LABOR DISPUTES

Elsa Beatriz Suarez Kimura

THE EXPERT WITNESS REPORT IN LABOR COURT

1.1. Introduction
We believe that the topic of the chapter can have a significant percentage of readers among its audience.
professional novels or those who, having previously graduated, have dedicated themselves to any of
the other areas of his professional responsibility.
In that conviction, the presentation of the topics has been approached following the chronology of
concerns that arise when starting any new task.
Each of the steps developed here will aim to be presented conceptually, with the
legal and bibliographic references that support it.
The topic of the forensic accounting is also addressed in other chapters of this book, so it is estimated
it is convenient to emphasize, at present, the particularities of the issues related to the
labor issues insofar as they may impact the performance of the task;
this will be made evident when appropriate.
No explicit definitions are made regarding the applicable legal glossary, since the topic is already
discussed in other chapters of this work.
It is noteworthy that the expert must understand the relationship of their task with the specific subject they contribute to.
to clarify, in this case, the field of labor relations.
Never better expressed the character of auxiliary of justice that generates for the expert accountant the
obligation to use the knowledge of their profession to contribute to the elucidation of issues
controversial in the judicial area.
In labor matters, laws, their regulatory decrees, and jurisprudence must be correlated.
It is appropriate to clarify what has been presented, reiterating that the application and interpretation of the laws is a matter
reserved for the judge; what stands out is that in those chiaroscuros that the laws have, in many
cases must apply the case law in order to respond to an expert point.
 This implies for the accounting expert who works in the field the need for a permanent
update, beyond the knowledge inherent to their degree.
The expert cannot claim ignorance of the plenary rulings applicable to the issue at hand.
intervenes, and will be required to make recalculations through appeals, to the extent that it does not
has been applied at the time of presenting your report.

1.2. Particular elements of labor jurisdiction that must be taken into account
The expert accountant is called by the judge to provide opinions on points of expertise related to his field.
The framework of your task is given by what is provided in theart. 91of thelaw18.345what does it say:

Expert test.Article 91, law 18.345

If the appreciation of the disputed facts requires special knowledge in any science, art, or industry
or specialized technical activity, expert testimony may be proposed, indicating the points on which they will address
to be issued. The experts will be appointed ex officio in all cases and their number may vary from one to three, to
judge's criterion and according to the nature or amount of the matter, circumstances that will also be taken into account for
set the deadline within which they must be issued.
Only in exceptional cases may the experts request and the judge order that, as a preliminary measure, the one or more
interested parties shall deposit the amount set for the expenses of the proceedings. The experts may be challenged with
cause within three days following their appointment.
In relation to the forensic accountant, it can be stated that the comparison of the mandatory records and their
Documentary backup will be the starting point for the task to be performed.
Once that stage is overcome, it will be important for the professional acting as an official expert.
the recognition of the applicable legislation to the subject of the litigation.
This is the case in all jurisdictions, but in the particular case we are addressing, it should be noted that the
Legislation has varied significantly in recent decades; and such a circumstance cannot be ignored.
by the professional in the performance of their duties.

In most cases, expert questionnaires include a point that is stated more or less
with the following tenor: "the expert must conduct a settlement in accordance with the law" or, failing that, "the
an expert will verify the accuracy of the calculations included in the initial document.
Evidently, to achieve those objectives, the essential aspects of the legislation must be known.
in force during the period referred to in the litigation, as they may have been modified since the
occurrence of the fact object of it.
These circumstances are just some of those that require the expert to conduct a special analysis.
of the time frame applicable to the task assigned to you.
Particular aspects, such as those mentioned, surround the task of the accounting expert and directly influence it.
about the achievement of his task.
The detailed analysis of the variations made in the set is beyond the scope of this chapter.
of labor laws; the situation has been presented to highlight the magnitude of the issue and advise that it be given attention.
the due attention.

1.3. Formal aspects

Among the formal aspects that characterize the accounting report in the judicial field, the following should be noted:

a) It arises from the agreements No. 35/11 and No. 38/11 of the Supreme Court of Justice of the Nation that the
Judicial documents must be submitted in A4 paper format. The first of them implements a
environmental management system within the scope of the Court and the second specifies the new size that is
will be accepted for court presentations.
Gradually, the accumulated office paper is being consumed, so it could be expected that the criteria
The environmental framework that supports it will be in effect very soon in all areas.
 The expert must take into consideration that the text of the report must be framed within the margin.
established so that the writings can be properly added to the court file.

The layout is not arbitrary, since the width of the margin is related to the possibility
to successively incorporate the pages into the file, fastening them with clips, in such a way that
keep them organized and numbered. Each case file consists of 200 pages.
indelible ink
Legal documents must be submitted in indelible black ink that allows for readability.
In this regard, it is interesting to note that the C.S.J.N. issued a specific resolution reiterating this.
obligation since, with the widespread use of word processors for computing for the
drafting of the writings, if it was worked with a low print resolution, in some cases the reading
it became difficult.
c) Structure of the writings
In the judicial sphere, in general, a presentation structure should be followed that we summarize as
continuation. All writing consists of the following parts:
—Title.
Identification of the presenter.
—Body of the writing.
—Closure of the document.
Signature of the professional.

Indicate the purpose of the document presented. It allows for the expediting of the case process and to guide the
intervening officer regarding the subject of the presentation. In the case of experts, they may be cited:
Title
The accounting expert requests the file
Accounting expert requests advance on expenses

First name and last name.

Professional title.
Established address.
Character in which it is presented (in this case, a little accountant by trade).
Identification of the cars. File number.
Clear identification An example of the paragraph would be composed like this:
of the professional
.....................................................................Mr. Judge:
Ana MORA, Certified Public Accountant, with established residence at Nazca 1050 - Capital Federal, appointed
as an expert accountant in the case titled: "Romaniello, Daniel vs. El Puma S.A. regarding dismissal"
VS. presents and respectfully states:
....................................................................."
It must contain the following parts:
Body of the written text
Proposal
Development
Express petition of what is requested
Closure of the documentAll judicial writings end with the phrase 'will be justice' or 'for being justice'.
The professional's signature must be included with a clear identification of their first and last name, title, and university.
Company
that issued his degree.

1.4. Substantive aspects

They are related to the purpose of the accounting expert opinion as a means of evidence.
The expert evidence is provided for in the labor procedure law in Article 91, insofar as the
controversial facts require special knowledge "in some science, art, industry or activity"
specialized technique...
 The expert evidence proposed by the parties must indicate the points on which it should be addressed.
to issue the accountant.
It is expected that the experts will be appointed ex officio in all cases and that their number
It may vary from one to three, at the judge's discretion and according to the nature or amount of the case.
The designation of office will fall on the members of the expert registry, whose existence is established
thearticle 17from thelaw 18.345of labor procedure, which provides for the existence of that registry. The Chamber of
Appeals will carry the same and will have the function of establishing the conditions and requirements that must be met.
gather those who register in it, as well as the rules for their designation.
In summary, we will have the following elements related to the actions of the expert accountant in a
labor case
Existence of a specific issue in its subject matter submitted to debate related to the object of
file.
A responsibility that provides him with a background of technical-professional foundations, which will allow him to
to contribute to the elucidation of the cause, based on the issuance of technical judgments.
Ultimately, based on the conclusions that arise from the accounting expert report, the judge will dispose of
elements that will help you in the task of clarifying some controversial issue in the file.
Therefore, it is advisable to clarify that the clarity in presenting the foundations that support
the conclusions reached by the professional will provide greater validity to their work than a development
too broad that it may hinder the understanding of those involved in the actions and
they are not specialists in the accounting field.

1.5. Registration in the expert registry

In order to act as an expert accountant in the labor jurisdiction within the Autonomous City of Buenos Aires
It is necessary to register in the respective registry enabled by the chamber of jurisdiction.
existence was mentioned previously.
In general, every year the registration of experts opens in a specific period, during which it must be
comply with the documentation established in each case.
For about two decades, by virtue of an agreement between the Professional Council of
Economic Sciences of the Autonomous City of Buenos Aires (formerly CPCECF) and the National Chamber of
Labor Appeals of the jurisdiction, the registrations are being carried out by the Chamber in the
headquarters of the professional organization. Previously, registrations were received at the experts' office of the
Chamber, to which professionals from other specialties continue to attend who wish to perform.
as experts and are not covered by similar agreements.
The requirements to be met by professionals in economic sciences in the field of the City
Federal Autonomous of Buenos Aires are the following:
It must be proven that the registration is active, a procedure that becomes immediate when the
Advice from the respective registers.
Not being disqualified from practicing the profession due to a current sanction applied by the
Honorable Ethics Tribunal.
Establish residence in the jurisdiction.
Present the $50 stamp corresponding to the fee established by Agreement 29/95 of the
Supreme Court of Justice of the Nation. The fee is unique for the same year, regardless
that the expert registers in more than one jurisdiction as an Expert in any of the professions in Sciences
Economic. This procedure is personal and takes place at the headquarters of the Professional Council, according to the
stipulations published in each year.
If the applicant has more than one professional license, they may register in the registry.
corresponding to each of them.
The registration act to join the list of experts implies, for the professional, the obligation to carry out
the task for which he is appointed. He can only stop doing it that way for a duly justified reason.
justified and accredited before the judge.
 With the received registrations, a list of experts by specialty is prepared, distributing them among
all the courts of the jurisdiction proportionally.
In February of each year, the expert is assigned to a court, usually different from the one they were assigned to.
the previous year, according to variable criteria for the allocation of the complete lists.

1.6. Designation and notification

With the start of the judicial year in February, each court begins to work with the list of experts.
that it be sent for the period.
Based on this, the assignment of positions is done by drawing lots. Each expert is withdrawn from the
list once it has been appointed, until the rest of the professionals have obtained a position.
The designation in a certain file is communicated to the expert by means of a notice.
judicial. Generally, the term within which it must proceed to accept the position will be specified.
The failure to comply with the term set by the judge may lead to the removal of the expert. In such cases
assuming, the Court will proceed to communicate it to the Experts Office of the Chamber, which in case of
reiteration can file the respective complaint with the professional council of the jurisdiction.

1.7. Recusals and excuses

Experts can be challenged for cause within three days following their appointment.art.
26from thelaw 18.345it establishes that the recusal cannot be made without cause.
The grounds for the recusal of experts are the same as those that apply to judges and are
expressly included in article 17 of the Civil and Commercial Procedural Code:
1. The relationship by consanguinity within the fourth degree and the second degree of affinity with any of the
parts, their representatives or attorneys.

2. Having him or his relatives or in-laws, within the degree mentioned above, an interest in the lawsuit.
or in another similar situation, or society or community with any of the litigants, procurators or lawyers,
unless the company was anonymous.
3. To have a pending lawsuit with the challenger.
4. Being the expert creditor, debtor or guarantor of any of the parties, except for official banks.
5. Have received significant benefits from any of the parties.
6. Having friendship with any of the litigants, which is manifested by great familiarity or frequency in the
treatment.
7. To have enmity, hatred, or resentment against the recuser that is manifested by known facts.
Likewise, if the expert finds himself in any of the mentioned situations, he must excuse himself.
The code expressly stipulates that kinship with others shall never be a reason for excuse.
officials who intervene in the fulfillment of their duties.
It is advisable to remember what is established in the Civil Code regarding kinship and its form of
computation, for which the applicable articles are transcribed below:
Title VI. Relevant articles on kinship and its degrees
Art. 345—Kinship is the existing bond between all individuals of both sexes who descend from
one same trunk.
Article 346—The proximity of kinship is established by lines and degrees.
Article 347 - The bond between two individuals, formed by generation, is called degree; the series is called line.
interrupted of degrees.
Article 348 - The degree from which two or more lines originate is called a trunk, which in relation to its origin are called
branches.
 Art. 349—There are three lines: the descending line, the ascending line, and the collateral line.
Article 350 - The term descending line refers to the series of degrees or generations that connect the common trunk with its children.
grandchildren and other descendants.

Article 351—The ascending line is called the series of degrees or generations that link the trunk with its father, grandfather.
and other ancestors.
Chapter I. Of kinship by blood
Art.352—In the ascending and descending line there are as many degrees as generations. Thus, in the descending line
the son is in first grade, the grandson in second, the great-grandson in third, and so on. In the ascending line,
the father is in the first grade, the grandfather, in the second, the great-grandfather, in the third, etc. (how many are the people
removed one, there are so many degrees between them.
Article 353 - In the collateral line, degrees are counted equally by generations, ascending from the person.
whose relationship is to be verified up to the common ancestor; and from this one to the other relative.
Thus, two brothers are in second grade, the uncle and the nephew in third grade, the cousins in fourth,
children of first cousins in the sixth, and the grandchildren of first cousins in the eighth, and so on.
Art. 354—The first collateral line comes from the ancestors in the first degree, that is, from the father and mother of the
the person in question, and includes their brothers and sisters, and their descendants.
Art. 355—The second part of the ancestors in the second degree, that is, the grandparents of the person.
what it is about, and includes the uncle, the cousin, and so on.
Art. 356—The third collateral line originates from the ascendants in the third degree, that is, from the great-grandparents and
great-grandmothers, and includes their descendants. The same procedure is followed to establish the other lines.
collaterals, starting from the most remote ancestors.
Chapter II. Of affinity kinship
Article 363—The proximity of kinship by affinity is counted by the number of degrees in which each of the
spouses were with their relatives by consanguinity. In the direct line, whether descending or ascending, the son-in-law
or daughter-in-law are reciprocally with the father-in-law or mother-in-law, at the same degree as the son or daughter, in relation to the father or mother,
and so on.
In the collateral line, brothers-in-law or sisters-in-law among themselves are in the same degree as siblings among themselves.
sisters. If there was a previous marriage, the stepfather or stepmother in relation to the stepchildren are
reciprocally to the same degree as the father-in-law or mother-in-law in relation to the son-in-law or daughter-in-law. (In kinship by
affinity, there are no degrees because there are no generations. Computing is done by analogy assuming that both
spouses form a single person.
Article 364 - Affinity does not create any kinship for the blood relatives of one of the parties.
spouses in relation to the blood relatives of the other spouse.
In the Audit Manuala(1)the following scheme is included that allows identifying the degrees in the tree
genealogical as they were stated:

2. THE PLANNING AND MANAGEMENT OF THE EXPERT EVALUATION TASK IN LABOR COURT

2.1. Acceptance of the position and compliance with procedural deadlines

Once notified of his appointment, the professional must go to the court's entry office.
the court in order to accept the position for which he was appointed.
In that place, you will be asked to present the respective credential to verify your
professional condition and complete the necessary data required by the courts.
A typical acceptance of charge document contains the following data:
 In the city of Buenos Aires on the .............. days of the month of ............. of 201.., Mr./Ms. was established
............., who verified their identity with document number .......... and proceeded to accept the position of
............. Const.
Once the above formula is completed, the professional and the designated official must sign at the bottom.
to this effect by the court.
If upon presenting oneself to accept the position, the file is not found in the locker for consultation, the
The expert should leave a record in the court's notebook. In some courts, they do not allow that
the expert made such a statement, arguing that they will not proceed with their removal due to the expiration of the term
agreed to accept without prior notification. This assertion has no basis in
procedural terms, so it would be advisable for the expert, in the event that it is not possible to leave the note in
the court attendance book, submit a written statement highlighting that the file is not
he finds it in writing and it has been impossible for him to access it.

The right to consistency cannot be denied to the expert, but it should not be overlooked that there may be
situations like the one described in the previous paragraph.

2.2. Data collection and study of the file

The expert must collect all the necessary data to carry out their task.
Upon accepting the position, the professional needs to extract at least the following information:
Date of the item in question
The object of the trial can be found within a range as varied as the framework of relationships.
work aspects that make the date essential, because based on it, the situation will be different.
applicable legislation.
Real address of the company
The distinction must be made between the actual address and that established by the parties. In general, companies
they will establish a domicile in that of their sponsoring lawyer, in which case this information should not be overlooked, since
that if the accounting expert mistakenly addresses the second, he will not be able to access the documentation to
to compel, which is the very object of the task that must be carried out.

Existence of documentation added to the file

The documentation related to the accounting expert report that is attached must be taken into account.
to the file.
It deserves a separate paragraph that elements have been provided in the judicial cases that
find reserved items in the courthouse safe that the expert should use to complete his
task.
We are referring to the documentation that the parties provide for another type of evidence, different from the
of the accounting expert report, to support the position defended in the proceedings; instead of keeping it in
their residence, they deposit it in the court and request its reservation.

Alternatively, it may be that the scope of the issues included in the expert questionnaires
justify requesting the file on loan. In some courts this is feasible, since in the same
provided with designation, the expert is informed of the possibility of withdrawing the proceedings.
If this is not the case, a note specifying the reasons for the request must be submitted, as well as the
time that it is estimated will be required to study the file. The expert must attend the table of
court entries to notify of the resolution made by the judge regarding your petition.
There are cases where the courts do not provide for the withdrawal of files by the intervening experts.
setting schedules and conditions for the extraction of photocopies of the pieces that are of interest for the
professional.
All this data extraction task will make it possible to satisfactorily fulfill the assigned work by
via of expert questionnaires.
 It is a fundamental preliminary activity, since, among other things, the object of the file may be
referring to dates different from those in which the position has been accepted; the importance of it is reiterated
determination of the date of the employment relationship for the purposes of the task of the accounting expert.
Having covered these stages of data analysis necessary for the object of the cars, the expert must...
to establish at the defendant's domicile, interviewing the representative of the latter, who will be required to
necessary documentation and registrations that must be submitted for review as stated in the charge
that has been conferred to the expert and the content of the expert questionnaires.
In general, the human resources department is the one that will guide the expert to indicate where they can access.
the documentation that is necessary for him.
This will not necessarily be the case, since it may happen that the defendant has changed their residence.
real, in which case it would be necessary to go to the established address to make contact with the
legal representative of the defendant.
It would be advisable, in one way or another, to leave a written notification of the required documentation.
so that, in case it is not provided, it can be accredited before the court that it has been
requested and not presented by the party.
This is important because the role of the expert accountant is to contribute, from their specialty, the
elements that assist the driver of the case, the judge, in making decisions with the greatest number of
possible elements. If the actions aimed at this were not carried out efficiently, one might think about
a negligence in the exercise of the position.
In conclusion, the expert accountant must review the file, paying special attention to the written document.
of demand, the reply to the demand, the writings that include the offers of evidence and the
eventual existence of reserved documentation related to your task.
The analysis of the file must be as thorough as possible, because this will prevent having to attend to
successive opportunities to clarify aspects that could have been addressed in the first contact with
the file, whether it has been requested on loan or through the collection of the necessary data.
Like in any other professional area, planning the steps to take and diligently adhering to them
they will make the task more efficient.

2.3. Preparation of the report

The expert accountant will find that the answers to the expert questionnaires will put him in many
At times in the situation of contributing elements that should have been included in the process through
of the informative evidence or of the documentary evidence.

The truth is that, at this stage of the process, where the appointment of the accounting expert takes place,
expert questionnaires have ceased to be the property of the parties to become issues
that Your Honor (S.S.) has taken them on and entrusted the expert with their elucidation, so it must
to comply with what is requested therein.
As a consequence of this, it may happen that the professional encounters situations in which they
I requested a mere transcription of data, without compromising any foundation of their specialty.
for its compliance.
Based on the considerations expressed regarding the expert questionnaires, group the questions.
that are generally included will allow to point out particular aspects related to each one of
those.
a) If the commercial and labor records are kept in legal form.
The first point that the expert accountant will generally have to testify about will be related to the
accounting and labor records, and the way missions are conducted.
In relation to how legal accounting records should be kept, the topic is addressed
in detail by various authors, for which, for a greater depth, reference is made to those works that
they address the topic from the aspects that are of particular interest to the public accountant(2).
 The aspect of registrations in the labor field, for its part, constitutes the pivot of the task of
expert in the jurisdiction being studied here, which is why the main regulations are analyzed below
regarding.
The signature regime before the Ministry of Labor and Social Security provides that the employer complies
with the requirements included in the Labor Contract Law. Articles 52, 53, and 54 contained therein
they establish the following requirements regarding labor records:
Employers are required to maintain a special book, registered and signed, that must be
made in accordance with the requirements set out for the main commercial books.
2. The mentioned registry must include the data that allows for the identification of the employer and the
worker. In relation to the latter, it is expected that they will include, in addition to their first and last name, their status.
civil
that generate the right to receive family allowances, as well as other data that allow for an accurate
evaluation of the obligations incumbent upon them and others that the regulations may additionally establish.
The record referred to can be maintained in digitalized systems that must be approved.
previously by the implementing authority. In each jurisdiction, it is exercised by the local labor ministry.
In the area of the Autonomous City of Buenos Aires, it depends on the Undersecretary of Labor.
Provincial jurisdictions exercise this control through local labor ministries.
It is worth mentioning that the signature of the work records can be requested in manual format, sheets
mobiles, microfilming and that the requirements for each of these alternatives are expressly
set out in the current regulations. It is advisable for the expert to review them before attending the comparison.
to verify that all formal aspects have been duly complied with.
When the entity has chosen to keep the record in Mobile Sheets, the signature of the same
it must be carried out prior to its use by drilling them, and it must be done the
presentation before the signature department. The company must bind them for their
conservation and storage, for a period not exceeding three months or 500 pages, must be attached in the
report from the independent public accountant, stating that the authorized listings are
correspond to those authorized by the oversight entity.
When the expert arrives at the employer's residence, they may find that it has
exercised the option to proceed with the Centralization of Employment Documentation Signatures, under the terms of
Resolution No. 168 of the National Labor Secretariat - Buenos Aires, August 26, 2002.
compliance with it, those employers who engage in activities in more than one jurisdiction,
they can do so if it concerns societies, associations, or regularly constituted entities: in the
legal address of the company or where it has its main place of business or headquarters
administration, provided that in said jurisdiction at least 20% of the staff is effectively serving
the company at the time of requesting the centralization of the signature. When it comes to partnerships
Irregulars or individuals may centralize the signing of labor documentation in the main entry.
about their businesses.

An authenticated copy of the procedure that authorizes the centralization must be kept at the workplace.
of the employment records.
With the unification of the control of obligations related to employment, a specific provision was issued.
that establishes the obligación to integrate into the registry ofart.52,LCT (Labor Contract Law), the
data related to family burdens that generate the right to receive allowances.
While it refers in a generic way to the obligation to comply with the standards regarding
manner in which labor records must be kept, a series of express prohibitions is established
in the particular case. Among them are:
Update the records corresponding to each employee.
2. Leave blanks or spaces.
3. Make interlineations, erasures or amendments, which must be saved in the box or space.
respective, with the signature of the worker referred to in the entry and control of the administrative authority.
4. To add annotations, delete pages or alter their pagination or registration. When it comes to the registration of pages.
mobile devices, their authorization will be done by the administrative authority; each set of sheets must be
preceded by a certificate issued by said authority, indicating its number and date of
enabling
 Likewise, the expert must issue a statement on the correlation of the records with the documentation that the
supports: payroll receipts, time cards or alternative means of attendance control.
These requirements must be at least stated in this work to the extent that the
deviation from the stipulated norms would imply a breach that will only be revealed when the expert does
point out when detailing the result of the verification.
The judge does not "see" the books; that is a function for which he requests the explicit participation of the specialist.
on the topic: the expert accountant.

The evidentiary validity of labor records in court will be subject to the merit given by the judges.
participants deserve the omissions of compliance with the formal requirements included in
theart.52from the LCT, in accordance with the particularities of the case.
According to thearticle 55from the Labor Contract Law, will be regarded as a presumption in favor of the statements
the worker's failure to display the book, record, payroll, or others at the request of judicial or administrative authority
control elements, provided for by articles 52 and 54 of the mentioned regulation.
By analyzing these aspects in detail, it can be asserted that they constitute specific subject matter.
of their profession, forcing the accounting expert to emphasize the control of compliance with the
formalities explicitly included in the legal text, since their deviation must be evaluated by
the judge at the moment of issuing a sentence.
b) The analysis of the social security contributions and social charges for the period in which it is requested.
the worker performed
There is relative consensus among those who work as justice assistants that the analysis
The inclusion of the defendant's social security contributions and social charges exceeds the scope of an expert assessment.
accountable for drawing conclusions regarding a single actor. However, the point is included.
repeatedly among the requirements of the accounting expert report.
According to the regulations in theart. 80LCT, this petition aims to plead the existence of injury
labor due to the lack of payment of social security and union obligations.
I agree with the appreciation of those who argue that strict compliance would imply performing
a comprehensive audit of the item. Therefore, the judge of the case must be informed of the number
of the hours of assistants that would be necessary to achieve that objective, requesting the authorization
express the expenditure independently of the regulation of fees that will later be
correspond to the expert.
c) Practice settlement in the event that the claim is fully granted.
Sometimes, even without having detected and reported abnormalities in the documentation and records.
Compelled, the expert may find it appropriate to present two alternative settlements.
—One that considers the assumptions in case the claim is fully upheld, applying those
considered expressly by the plaintiff in the complaint.
Another that arises from the strict application of the legislation related to the object of the trial, considering
the elements that arise from the record and documentation checks carried out to finalize the
task.
It is essential to remember at all times that the expert accountant has been called to apply their
accounting knowledge in such a way that it enriches the elements of judgment that should be at your disposal
the judge of the process in order to issue his verdict.
The discrepancy between the settlement made in the complaint and the one carried out by the expert
it may be due to numerical or conceptual errors, which need to be correctly reformulated by
that one in the performance of his duty.

d) Any other matter.

Many expert reports include a final point that states 'the expert should report on all other'
related matter...
The expert should not engage in abuse of opinion by incorporating issues that have not been submitted to them.
has within its powers the interpretation of the laws, which the National Constitution reserves to
judge, so they should be very prudent when evaluating what is requested through this means.
 The mentioned prudence does not imply forgetting its character as an auxiliary professional of justice, which grants it the
attribution of relating data included in their report, which together constitute a situation that must
be particularly analyzed at the time of reaching the conclusion of the process; that is the type of response
what could satisfy a point of this style.

2.4. Presentation of the report. Notification to the parties

The expert report must be submitted at the court's entry desk with as many copies as there are parties.
they are the interveners.
The parties in a labor trial are generally the plaintiff and the defendant. Although the plaintiffs may be
various, as in the case of labor lawsuits for salary differences against state companies, in the
To the extent that they have unified their representation, a single copy must be submitted for all of them.
The defendant can be more than one if there has been litigation against two employers.
jointly liable, in accordance with the provisions of certain articles of the Labor Contract Law.
Examples of these circumstances are:
a) The transfers of goodwill with the assumption of labor responsibilities by the
purchaser of the same. If they do not fulfill the obligation, the worker can take action against the
seller of the business establishment who was its original employer for the period in which he worked in
dependency relationship with that one.
b) The hiring of staff through a temporary service company, which transforms into
jointly and severally liable to the beneficiary company of the service provided in case of non-compliance by
temporary employment agency.
Likewise, there may be the existence of a third party cited as a guarantee, as is the case of the
insurance companies in claims for workplace accidents covered by the laws of
accidents, which makes it necessary to accompany a copy of the report for them.
The expert report must be notified by the court to the parties within a period of three days. The cited
The deadline can be extended by the judge if they consider that the complexity or extent of the ruling so requires.
they justify it.
This view is granted so that those interested may be aware of the conclusions drawn by the
expert and request any clarifications they consider necessary.

2.5. Challenges, clarifications and observations to the accounting expert report, and inclusion of new points
of expertise
Presented the report, and insofar as the expert accounting report will constitute an element that
it should play a perhaps preponderant role in the pleading stage, the parties may request the
clarifications, as stated at the end of the previous point.
The clarifications may refer to issues related to unaddressed foundations of the
conclusions reached in the report.
It may also happen that, through the request for clarifications, a greater detail is being required about
the characteristics of the documentation and records that have been examined.
The challenges are brought by the parties because they do not share the conclusions arrived at.
the expert and request a re-evaluation, either because they question the documentary source on the basis of which
they arrived there.
Observations are often interposed by the parties at this stage of the process with the
purpose of highlighting the elements that the expert evidence has contributed in favor of its position
In the case, what constitutes in practice a preview of the argument.
The expert will find that he receives a notice forwarding a submission of this kind.
titled challenges accounting expert report, which contains statements of a tenor such as the following:
 I challenge the accounting record identified by the Expert Accountant in point c) of their report...
In reality, the manifestations of the type mentioned in this section related to 'observations'
About the elements subject to scrutiny should have been raised at the pleading stage and not at the
to overlook the conclusions of the expert tests.
In light of the above, it may occur that the expert does not have to clarify or explain any issue.
since the technical-scientific foundations supporting the given responses have not been 'observed'
to the expert questionnaires.
One last aspect that must be considered is the inclusion of new areas of expertise. It should not
allow that a document titled objection attempts to include new points of expertise not
contents in the expert reports originally assigned to the forensic accountant.
Such circumstance must be expressly brought to the judge's attention when responding to the transfer.
respective, clearly pointing out what is considered new.
If the judge deems it appropriate to include the issue at this stage, they will notify the expert accordingly.
resolution, requiring you to satisfy the point. Otherwise, it will dismiss the claim of the party or defer
the resolution on the matter for a later instance.

2.6. Follow-up of the procedure

A special section is dedicated to this issue, since the proper tracking of the file
it will allow those who engage in the work of accounting expert to satisfy the cycle of service
a professional service and receipt of the corresponding remuneration.
The mentioned relates to an issue that is widely repeated in the practice of this specialty,
since the processes are prolonged over long periods, many accountants abandon the
file once submitted its report and, therefore, lose the consequent monetary compensation
for the work done.
Once the testing phase in which the accounting expert is incorporated into the process is completed, the following steps take place.
next procedural stages:

Procedural stages Intervention of the experts

There is no intervention from the experts.
Plea The parties illustrate to the judge the elements that the offered evidence has brought forward to support
his position in the litigation.
Once the stage of making allegations is concluded, it is now possible to issue a sentence and the file.
Cars for judgment
moves to a study stage.
The expert is notified of the ruling because in labor court the regulation of fees
A sentence is issued
It is included in the text of the sentence.
In the six days following the notification of the ruling, the parties or experts may file the
In terms of sentence
resources provided for in the C.P.C.C.N.
If appeal resources had been filed within the judgment term and they were granted
Car pass to camera
by the first instance judge, the file is sent to the Court of Appeals.
To issue a sentence of When the file arrives at the entrance table of the chamber, the room that will intervene is drawn.
second instance the file is submitted for review for the second instance judgment.
A sentence is delivered in The expert is notified of it. If any of the parties or experts had reserved the right to
second instance submit an extraordinary appeal, it can be made effective from this ruling.
Drop the file to Having the second instance ruling become final, the file returns to the court for
first instance liquidation is practiced and the execution process is initiated.
Settlement article 132 L.O.
The rules regarding settlement are addressed in section 2.10 of this chapter. Initially, it
18.345
enable a specific locker for the files that have reached this stage of the process.
Execution

The expert is incorporated into the process from the stage called evidence, a period during which they
They carry out all the proceedings requested by the parties, including the accounting expert evaluation.
Once the assigned task has been completed with the delivery of the respective report and the response to the
transfers that may eventually be granted to them by presentations of the parties according to the possibilities
detailed in section 2.5, the expert does not participate in the process again until the respective decision is made
sentence.
Given that the time that passes between the completion of the testing phase and the issuance of the ruling
it is materially very extensive, this is the time when the greatest discouragement of the professional occurs, that
Usually, opts to archive the issue.

2.7. The ways of concluding the process and their impact on the regulatory framework of fees
The objective of this book is not to deliver a complete course on judicial procedure, which is why it has been excluded.
specifically the specific treatment of each of the items contained in the respective codes that
did not have a direct relation to the expert task.
That being clarified, however, it is useful to outline the different modes of conclusion of the
processes that are provided for in procedural matters. The following table summarizes the characteristics
which define each of them as it emerges from the Civil and Commercial Procedural Code of the Nation:
Sentence It is the normal way to conclude the process.
The abandonment of the process is configured when at any stage of the case, prior to the issuance of the sentence,
the litigants agree to withdraw from it and express this in writing to the judge.
Withdrawal The waiver of the right implies that the plaintiff relinquishes the right that served as the basis for the filing.
from the claim; the defendant's express consent is not required for it to proceed.
Both are provided for in articles 304, 305, and 306 of the C.P.C.C.N.
It is a right that can be exercised by the defendant in the litigation at any stage of the case.
prior to the judgment. It involves acknowledging the right claimed by the plaintiff.
Entry
It is provided in the legislation that the judge will issue a ruling according to the law, but if he is compromised
the public order, the search will be ineffective and the process will continue according to its state.
The transaction of the right in dispute may be asserted by presenting the agreement that has been made.
arrived or by subscription of a specific record before the judge.
Transaction In relation to its terms, the judge will only limit himself to examining the fulfillment of the requirements.
that emanate from the applicable law on the matter for the transaction to be valid and depending on the outcome of
Their analysis will decide on the approval of the agreement.
Article 309 provides that the conciliatory agreements made by the parties before the judge, and approved by the
Reconciliation
same, they have authority of res judicata.
Expiration of the The Code of Procedures provides specific grounds for the expiration of the instance to take effect. They
instances arise from art. 310.
It is convenient to relate the modes of conclusion presented with what is pertinent to the different
alternatives that generate the same in their connection with the determination of the regulatory base of the
professional fees.
The tariff regime for professionals in economic sciences provided for in decree 16.638/57
it still preserves an exemplary character regarding the relationships to be established for the fees
according to the manner of conclusion of the process. They are:
1. If a judgment is rendered or there is a settlement

The amount of the lawsuit will be determined by what arises from the judgment issued in the proceedings or the settlement.
to which it has been reached. Likewise, it is established that when seventy-five percent is not achieved
claimed amount in the lawsuit or counterclaim, or either one being rejected, the judge may set
fees at a percentage higher than what would correspond according to the amount established by the sentence.
2. If the fee must be set without a judgment being issued or a transaction having occurred.
For this purpose, the amount of the lawsuit will be considered as half of the claimed sum. If later a ruling is issued
The sentence will correspond to readjusting the regulation according to that assumption.

3. If there is no amount

Under this assumption, the following elements must be taken into account:
a) the amount and importance of the submitted work;
 b) the complexity and nature of the issue raised;
c) the moral or economic significance that the issue in debate has for the parties.
Until 30/9/1992, the fee scale that arose from the labor jurisdiction was fully applicable.
decree 16.638/57, which established the following figures for expert reports:

Up to $1,000 From 13 to 18%

Up to $5,000
More than m$n 1,000 From 11 to 16%
Up to $10,000
More than m$n 5,000 From 9 to 14%
Up to $50,000
More than m$n 10,000 From 7 to 12%
Up to $500,000
More than m$n 50,000 From 5 to 10%
From now on
More than M$ 500,000 From 4 to 10%
Given that the regulation in question did not provide for any indexing mechanism in its provisions, the
successive inflationary processes made it necessary to apply the parameters of the highest step, this
it implied that the fees should be set between the limits of 4% as a minimum and 10% as a maximum
maximum. These values were applied to updated amounts of the amounts determined in each case.
This position found its basis in numerous jurisprudence generated specifically by the Chamber.
National Court of Labor Appeals.
In principle, in the face of the emergence of new regulations, there seemed to be consensus among the judges.
from the rule not to innovate in the matter in relation to the pending cases, and they continued applying the
guidelines of decree 16,638/57 that established the mechanism of the described percentage relationship between
the amount of the trial and the fee of the professional in economic sciences who serves as an assistant
of justice in the capacity of expert.
In May 1993, a ruling by the C.S.J.N. was issued in favor of the application of the aforementioned decree 16.638/57.
in response to the individual presentation of an accounting expert, indicating the unconstitutionality of the
fee-setting criteria included in decree 1813/92, mainly in relation to the causes
preexisting to its issuance.

2.7.1. Validity of Law 24,432

On December 15, 1994, the law was enacted.law 24.432which included important reforms regarding
of the professional fees.
The following review includes some particularities that arise from said legal text and affect the
fees for judicial auxiliaries:
a) Modify theart. 505of the Civil Code, setting a limit of 25% on the amount of the sentence, award,
transaction or instrument that resolves the dispute regarding the total professional fees to
regular. Yes, if as a result of the individually practiced regulations, the established limit were
If exceeded, the judge must prorate that maximum percentage among all beneficiaries.
b) Incorporate as the last paragraph of theart. 77of the C.P.C.C.N. that the intervening experts may claim
from the part not condemned in costs up to 50% of the fees that were regulated to him, without
to the detriment of what is provided in article 478. Previously, the professional could claim 100% of
said emolument for the joint liability that extended to the victorious party.
c) In theart. 478From the C.P.C.C.N. mentioned in the previous item, an initial paragraph was added that specifies:
The judges must regulate the fees of the experts and other justice auxiliaries, according to the
respective tariffs, having to adjust them, even below their minimum thresholds, to the regulations
that are practiced in favor of the remaining intervening professionals, considering the nature,
complexity, quality, and duration of the respective works.
The same legal body establishes the application of the criterion presented in the field of labor justice.
Thelaw 24.432replace theart. 20from theLaw 21.839; it is worded in such a way that establishes
that when the fee should be regulated without a sentence being issued or a transaction occurring,
The amount of the process will be considered the sum that, reasonably, and by reasoned resolution, would have
corresponded to the criteria of the Court, in the event that the claimant's request was upheld.
Add, likewise:
 ...this amount shall in no case exceed half of the sum claimed in the lawsuit and
reconvention when it has been established.

2.8. Appeal resources against fee regulations. Importance of jurisprudence

Resources provided for in the Code of Procedures may be filed against the rulings and
resolutions adopted during the course of the process.
The motion for clarification can be requested within three days following the notification of the
ruling. The request for clarification does not suspend the deadline for filing an appeal, therefore
this must be filed in support.
The appeal against final judgments will have suspensive effect. It may be filed.
within six days following the notification thereof, as stated in the Code of Procedure
Labor in its article 116.
According to the text ofart. 120 of thelaw 18.345, when appealing fees it will not be necessary to
expression of grievances. Without prejudice to this, it is advisable to accompany the appeal with a justification.
appropriate to the terms of the ruling that are challenged and are requested to be reviewed.
The federal case must be reserved in the same writing to leave open the possibility of filing.
eventually extraordinary appeal before the Supreme Court.
If the appeal is granted, the case file is sent to the chamber of jurisdiction, where it is
room will be assigned by draw.

In the second instance, the decision included in the appealed ruling may be modified or annulled. If so
it will set different values for the fees of lawyers and experts, according to the new
pronouncement.
Against the definitive rulings of the second instance, requests for clarification and
the extraordinary resource, for which the corresponding reservation must have been made, as mentioned
opportunely.
The filing of the extraordinary appeal by the expert accountant must be based on the
unconstitutionality of a norm or in the arbitrariness of the judgment in question.
In thelaw 18.345 and in thearts. 282 y283the possibility of appealing is contemplated in the C.P.C.C.N.
directly in complaint for having denied a resource. For the submission of the complaint request, one needs to
requires legal sponsorship.
Let us emphasize that no lawyer's signature is needed to file the detailed appeals.
previously, except for those presented before the Supreme Court of Justice of the Nation. In
special attention should be paid to this, since if the hiring of a lawyer is decided, the fees
they must be supported by the expert accountant.
In that sense, there is a ruling that specifically rejects the claim to charge the obligated party for payment.
from the amount of the sentence the fees of the lawyer representing the expert. It is based on their participation
it does not exhibit the necessary character for the expert to fully exercise their rights.
It is interesting to know the fundamentals of the ruling, which are summarized below.
next: ruling "Oms, Jaime Alberto vs. Argentine State River Fleet", CNTrab., room VII,
30/5/1986
Costs. Expert. Fees of your lawyer: the procedural steps completed in the pursuit of the deposit of
the fees of the expert do not require a lawyer's signature (cf. art. 56, C.P.C.C.); therefore, to resort to the services
from a lawyer, by an auxiliary of justice, who it is reasonable to assume is knowledgeable of the basic canons
the judicial action is solely accountable to the sovereign will of the one who hired them, which reveals injustice,
"send others to face their cost"(3).

2.9. Settlement (art. 132). Criteria for updating and accruing interest. Notifications to
to practice
 Once the sentence is final, the liquidation proceeds according to the guidelines of the resolution that defined it.
the process.
The ex officio liquidation process implies that it will be carried out by the court's secretary, a
once the file has been forwarded from the chamber or the ruling has been accepted or finalized.
The settlement is communicated to the parties and experts. At that same moment, the debtor will be summoned.
for them to pay the amount that arises from that, in accordance with the deadline set by the judge in the terms of
sentence.
In the event that not all of the items were taken into account in the preparation of the settlement
elements involved or that were incorrectly applied, it may be challenged and reformulated
according to the guidelines that are deemed appropriate.
This new settlement is communicated to the interested parties and, in the event that discrepancies persist,
the judge must issue a ruling determining which of all the settlements corresponds to the terms of the
final ruling.
In the case of liquidations that are complex, it is possible that the court may call again to the
expert to settle the amounts in accordance with the terms of the judgment issued in the case.

2.10. Execution of sentences

There are basic elements of sentence execution that the professional acting as an expert witness must understand.
The accountant must know in any of the jurisdictions in which they operate, since the fees they must
Payment for this collection management will not be transferable to the payment obligor, as stated.
previously.

2.10.1. Deadline for compliance with the payment request

The order that mandates the notification of the liquidation carried out will include the deadline in which it should be done.
it can be contested and the one in which the obligation to pay must be fulfilled.
A typical text of the notice that informs the settlement says:
The settlement carried out is communicated to the parties and experts for a period of 3 days, requiring them to
interpose within it the challenges and reformulations they deem appropriate. In this latter case the
Condemned to pay, she must deposit the amount she acknowledges to owe or the one that remains firm in case of silence.

If no observations are made, the settlement will remain firm, and the assumptions being discussed may occur.
in the following points.

2.10.2. Responsibility for the payment of fees

In the ruling issued in the case, or in the homologation order of the eventual settlement to which
If it has arrived, the proportion in which the parties must take charge of the fees will be determined.
of the experts.
The obligation of its payment can be completely borne by one party or shared among
different percentages by the litigants.
If the party responsible for the costs of the trial does not comply with the obligation to make the deposit
intimated, from the sanction of theLaw 24.432as already mentioned, the expert accountant can only accuse the
solidarity from the counterpart up to 50% (fifty percent) of its credit, as it arises in the part
pertinent to said legal regulation.
The commented regulation modifies the scope of the text of article 40 of the Labor Procedure Code.
which foresaw the following:
Article 40—The fees of the court-appointed assistants shall be collectible from any of
the parties, without prejudice to the right of recourse that the one who has paid will have against the one condemned to costs.
 The consideration of the possibility of holding the parties jointly liable is of even greater importance.
in the event that the worker loses the lawsuit and the fees are at their expense. Given that in most cases
in cases where there are no assets that allow the credit to be enforced, the expert may request the judge to
notify the employer to cancel their credit only up to 50% of it, due to what is provided in the regulations.
in the currentlaw 24.432.

2.10.3. Once the liquidation has been finalized, the responsible parties deposit the expert's fees.
At this point and in the next, the various scenarios that may arise from the summons will be analyzed.
payment of fees.
The first alternative is configured when the convicted party deposits payment in the judicial bank.
corresponding to the owed amount. This is the normal way in which all expert work concludes.
Once the deposit is made, the check or judicial order may be issued ex officio by the court or at the request.
expert's expression.
If the check is issued ex officio, the expert must request that a record of its status be made on it.
fiscal against the taxes that fall on their professional practice. Currently, these taxes
they are called 'income tax' and 'value added tax'.
If the expert qualifies as a monotributista, according to current regulations, they would not suffer withholdings in
concept of 'value-added tax' or 'income tax'.
All of this is important, since, in the event that the situation is not stated in the issuance regarding the
tax, the banking entity is required to withhold the maximum provided for the non-registered. This
the situation currently represents a considerable percentage if the minimums not subject to exceed.
retention.
Some courts have the modality of issuing checks only at the explicit request of the interested party.
In that circumstance, the professional must submit a document in which they will inform all the cited data.
the tax purposes.
The following text exemplifies the body of the document that would need to be presented:
"[...]
He requests that the payment be released in his favor for the deposit of the fees owed to him.
appropriately regulated. In compliance with current regulations, I declare to be registered in the
income tax and qualify as a registered taxpayer for value added tax
attached. I am enclosing a photocopy of the respective certificate for the tribunal's knowledge.
For all the above, I request from you:
Please arrange for the issuance of the draft in favor of the undersigned for the sum of $xxxxx, leaving a record.
in the same of the tax situations credited in this presentation.
Prove V.S. in accordance, THAT
THERE WILL BE JUSTICE...

Signature and Seal of the Professional

2.10.4. Non-compliance with the deposit by the obligated party to pay

In the face of non-compliance with the notice to deposit, several alternatives arise to enforce the
collection of fees.
In general, the payment order issued by the court includes the warning of starting the
execution process in case of non-compliance.
This means that necessary measures must be requested regarding the debtor's assets.
 In that case, a request for the seizure of funds deposited in banking entities may be made; the seizure
of movable property at the debtor's actual residence; or, the seizure of registrable assets.

2.10.4.1. Embargo on funds deposited in banking entities

The expert accountant can request the judge of the case to order the seizure of the funds belonging to
to the debtor up to the amount owed in terms of fees plus what the judge estimates
to cover the additional costs that arise until the effective receipt of the credit.
For such purposes, the banking entity holding the funds in question must be clearly indicated.
embargo, with precise identification of the branch in which the debtor qualifies as a client.
In case it is deemed necessary to involve another person in the withdrawal and processing of the office
it must request express authorization from the judge and ensure it is recorded in the text of the official communication at the time
of its release.
If the judge deems the request for seizure appropriate, he will issue a ruling to the following effect:
Buenos Aires, xx of March 20xx. According to the request, a definitive seizure is decreed over
the funds deposited in the Bank of the Nation Argentina by the company Salerno S.A. until
cover the sum of $34,000 with an additional $3,400 that is budgeted provisionally for
respond to the interests and costs of executing the credit of the accounting expert...
From that statement, the respective letter to the banking entity must be prepared, a task that
It is the responsibility of the interested party, in this case, the expert accountant.

The document to be prepared based on the previous provision would be as follows:

OFFICE
Buenos Aires, xx of August 20xx
Mr. Manager of
Bank of the Argentine Nation
Central House
I have the pleasure of addressing you in the case titled: 'Páez, Ángel vs. Salerno S.A. regarding collection'
of pesos" that are processed before this National Labor Court of First Instance No. xx to me
cargo, Unique Secretariat, located at Diagonal Pte. Roque Sáenz Peña 760, floor nn, Capital, in order to address
to know that a definitive embargo has been decreed on the funds you have deposited in the Bank
from the Nation of Argentina the company Salerno S.A., until covering the sum of $34,000.- plus that of $
3,400, which are budgeted provisionally to cover interests and costs.
Likewise, it is hereby informed that the withheld amounts must be transferred to the Bank.
xxxxxxxxxxxxxxxxxx at the order of the subscriber and as belonging to these proceedings within the term
for five days.

I greet you attentively.

Signature and Seal of the Judge

2.10.4.2. Embargo on goods reported at the debtor's residence

The measure, as in the previous case, must be requested by the accounting expert.
The request must include the identifying information of the property where the existence of the
goods. Once the measure is approved, the judge will issue a ruling similar to the one presented below:

Buenos Aires, July 29, 20xx. The defendant has failed to comply with the request on page 148, regarding
the fees of the forensic accountant shall be decreed as a lien on her assets for the amount of
$358.42, plus the $110 that is provisionally budgeted to respond to increased needs,
interests and costs. Signed: Dr. xxxxxxxxxxxx—Judge—.
 The expert must prepare the corresponding seizure order indicating the scope of
the measure dictated.
In the bookstores adjacent to the courts, there are forms that include all the legal requirements to
consider when drafting the order.
The existence of such forms is mentioned solely to facilitate the task, since both
the embargo mandate as the instructions for the custodian of goods
Embargoed can be prepared by the professional without being subject to pre-printed forms. In fact,
with a simple word processor on a personal computer, the respective text can be stored
and recover it as many times as necessary.
In relation to the authorization for third-party completion, the same considerations apply.
than those exposed in the development of the bank account seizure process.
The seizure order must be delivered with copies to the court, accompanied by the respective
instructions for the custodian of seized goods. The latter outlines the responsibilities that
they are acquired before the justice in relation to the assets for which they have been made responsible.
The professional must report to the office of justice officials within five days.
schedule that corresponds according to the domicile in which the measure should be executed, in order to establish, with the
employee in charge of the area on the day and time when it will take place.
If the professional does not appear within the cited term, the mandate will be returned to the court for non
the interested party having presented itself.

If the described situation arises, it will generate the need to reiterate all the steps mentioned in order to
to achieve a new commandment in place of the one that was not carried out.
Once the date is set with the court officer, the professional or whoever is authorized for it,
It must take place at the agreed date and time.
The judicial officer will carry out the seizure order, identifying the assets subject to it and
delivering to whoever is designated as the custodian of the goods the respective instructions.
If the expert does not show up on the agreed date, the seizure process will suffer the same fate as the
analyzed for the case of late submission in the enforcement office.
The court officer will be responsible for informing the court of the outcome of the measure.
From that moment on, in case the deposit noncompliance continues, it may be required that the
sale of the seized assets.

2.10.4.3. Embargo on registrable assets

The measure must be requested with clear and precise identification of the asset for which it is requested.
applied to that one.
In the case of real estate, the cadastral data of the reported property will be required.
In any case, once the request is favorably accepted by the judge of the case, it
find in charge of the professional and/or of whom he/she authorizes the preparation of the order and its
filling out before the corresponding registry.
As long as the non-payment persists, the auction of the asset must be requested.

2.10.4.4. Models of written request for seizure, order and instructions for the depository
a) Request for seizure
The expert accountant requests that the liquidation be declared firm and that an embargo be decreed.

Mr. Judge:
ALICIA GÓMEZ, Certified Public Accountant, with the address established in the records, appointed as the court expert.
accountant in the case titled: expte. No. 2,580/91, Varela, Sebastián v. Sendamar S.R.L.
In case of an accident, V.S. presents and respectfully states:
 I. According to the records of the case, the fees that were owed remain unpaid.
regulated to the signatory for her work in these proceedings.
That they have been left in charge of the defendant Sendamar S.R.L., which has failed to comply with its obligations.
obligation despite having been duly notified.
Given that there is no objection warranted, the liquidation carried out should be declared firm.
subscribed in the case.
In view of the above, this professional requests that an attachment be placed on the assets that
timely reported at the address of the defendant Sendamar S.R.L., located at Acevedo 2035
from this Federal Capital, for the sum of $35,842 plus what you budget to cover the
interest accrued from 01/04/20XX and the costs generated by this procedure
execution.
For the above, I request:
1. The liquidation carried out on 01/04/20XX is declared firm.
2. The detailed embargo in section I is ordered, also requiring that it be recorded in the
respective mandate that the undersigned and/or the authorized parties for its processing can be found.
Dr. Beatriz Fernández.
I want VS. to provide in accordance with
THERE WILL BE JUSTICE
ALICIA GÓMEZ
Public Accountant
(U.B.A.)
b) Attachment order

Garnishment order
The corresponding enforcement officer will go to the address at Acevedo Street 2035 and will proceed to
to impose a definitive embargo on assets existing in that place, which are owned by Sendamar S.R.L.
will be reported by Dr. Alicia Gómez and/or Dr. Beatriz Ana Fernández, interchangeably, until covered
sum of three hundred fifty-eight pesos with forty-two cents ($ 35.842), claimed by ALICIA
GÓMEZ in the concept of fees in the records: Varela, Sebastián vs. Sendamar S.R.L. regarding the accident being processed
before the National Court of First Instance in Labor No. ..., in charge of Dr. XXXXXXXXXXXXXXXXXXX,
with a single secretariat, located at Lavalle 1268, floor .... of the Federal Capital, with an additional amount of one hundred ten pesos
that are provisionally budgeted to respond to accrued interests and costs.
The order that dictates the present says: "Buenos Aires, April 29, 20XX. The defendant has failed to comply with the
summons from page 148, regarding the fees of the accounting expert, an embargo shall be decreed on their assets.
the sum of $35,842, plus that of $3,600, which is provisionally budgeted to respond to increases,
interests and costs. Signed: Dr. XXXXXXXXXXXXXXXXXXX—Judge". Buenos Aires, May 20xx.

Signature and Seal of the Secretary

c) Instructions for the custodian of seized goods

Instructions for the custodian of seized goods
Mr. Depositary:
In the Varela trial, Sebastián c. Sendamar S.R.L. s/accident that is processed before the National First Court
Instance No... located at Lavalle 1268, ... floor, has been designated as the judicial custodian of the assets.
embargoed. You are informed that the obligations you are responsible for from this moment on are the following:
1st. The seized goods have been placed directly under your custody. Therefore, it is your responsibility to
their conservation until the court notifies him that he has ceased his functions. He must not allow,
consequently, that no one, not even their own owner, transfers, deteriorates, or exercises any act over them.
disposition, without exhibiting a judicial order. Any event of such nature that occurs must be reported by you.
Immediate to the judge of the case.
2nd. By accepting the position, you have established a domicile. From that moment on, they must be sent to you.
All notifications are the same and, even if they have been changed, they will be presumed received as many as are directed there.
Consequently, you must immediately inform the court of any change of address.
3rd. Judicial depositaries are subject to the penalties established for embezzlement.
public by arts. 260, 261, and 262 of the Penal Code, by virtue of the provisions of art. 263 of the same body
legal, those that are transcribed below:
 Article 260 - A public official who gives a
the funds or effects that I will manage through an application different from that for which they were intended. If from
Hello, causing damage or impairment to the service for which they were intended, will also result in the guilty party being imposed.
fine from twenty to fifty percent of the distracted amount.
Article 261 - He will be punished with imprisonment or prison for two to ten years and absolute permanent disqualification, the
Public servant who misappropriates funds or property whose administration, collection, or custody has been entrusted to them
confident by reason of her position. The same penalty will apply to the public official who uses it for personal gain.
own or third-party, work or services paid for by a public administration.
Article 262 - The public official will be punished with a fine of twenty to sixty percent of the value stolen.
that, through imprudence or negligence or through failure to observe the regulations or duties of their position, gives rise to
if another person commits theft of the funds or effects referred to in the previous article.
Article 263 - Those who administer or safeguard assets are subject to the above provisions.
belonging to public instruction or charity establishments, as well as the administrators and
depositaries of seized, confiscated, or deposited funds by competent authority, although
belong to individuals.
YOU ARE NOTIFIED.
Signature and Seal of the Secretary

2.10.5. Insolvency of the debtor

In the event of the debtor's insolvency regarding the payment of fees, and in light of the impossibility of collecting the payment
Through the acknowledgment of solidarity provided in Article 40, LO, the verification procedure must be initiated.
corresponding in the debtor's contest. This procedure is analyzed in the respective chapter of
this book, which is referenced for specifically addressing this issue in bankruptcy proceedings.
It only remains to mention what is provided in the substantive code in these cases:
Article 135 - The execution against the failed or insolvent debtor must be carried out in the respective trial.
universal(Law 18,345.)".

2.10.6. Computation of the statute of limitations for the collection of fees

Regarding the prescription of the expert's fees, Dr. BERMÚDEZ(4)makes a clear distinction
between the statute of limitations for regulation and the statute of limitations for collection. In this regard, it states that the Code
Civil, when considering the statute of limitations, separates two different actions:
a) The fee earned, that is, where the expert has submitted their report on time and
However, where the fee has not yet been regulated, the amount has not been determined, and who should pay it.
support it, where the statute of limitations is 2 (two) years, from the time the trial ended with a judgment or
Good for transaction or another abnormal way of concluding trials, that is, since it was appropriate.
procedurally regular fees have not been made, and two years have passed without the expert having done so.
petitioned.
b) The statute of limitations that applies to fees regulated by judicial resolution and that in this
the general deadline is ten years.

3. ACTIVITY OF THE ACCOUNTING EXPERT IN LABOR DISPUTES IN THE PROVINCE OF

BUENOS AIRES

3.1. Introduction
In the jurisdiction of the province of Buenos Aires, the current regulation for labor justice arises from
the provisions in thelaw 11.653that was published in the Official Gazette on August 16, 1995.
 The fundamental distinguishing aspects that arise from its organization and relate to the activity
the expert accountant will be discussed in the next point, since it relates to the context in which it must
perform their professional activity in question.
Similarly, the expert must be aware that thelaw 10.620regulates the practice of professions in sciences
economic in the jurisdiction of the province of Buenos Aires and which, in its relevant part, includes within
from its Title IV, On the fees schedule in judicial matters, precise definitions regarding the
rights and obligations that apply to those who choose this activity as a professional specialization.
For this reason, its text is included as an annex to this chapter.
Additionally, the decision of the Supreme Court of Justice of the Province must be taken into account.
Buenos Aires regarding establishing approval as a requirement for the exercise of expert activity.
of a course specially dedicated to the elected, whose guidelines arise from agreement 2728 (Regulation
for the Dictation and Evaluation of the Training Courses in Procedural Practice) that will be commented on
briefly later.

3.2. Distinctive characteristics of the labor procedure in the province of Buenos Aires
Those professionals who choose to practice in the jurisdiction of the province of Buenos Aires
they must pay attention to some distinctive elements regarding the national order, in aspects
such as the organization of the jurisdiction. Regarding this last one, it should be noted that, given its extensive territory,
the courts are distributed in departments; each of them corresponds to one or more
localities.
In certain regions, the number of inhabitants does not justify the existence of a court for
each subject, so they function unifiedly and deal with the treatment of various issues
indistinctly, such as civil and commercial ones, which can be cited as examples.
In the case of labor justice, which is specifically addressed here, the function of judging falls on courts.
composed of three judges, whose sentences are only appealable to the Supreme Court of Justice of the
Province of Buenos Aires for the reasons provided in the regulations.

3.3. Performance of the forensic activity of the accountant

The issues related to the organization of the public accountant's task have already been addressed in the
first points of this chapter and are applicable to the performance of the accounting expert in the field of
labor justice of the province of Buenos Aires, since they relate to the logic of preparing the documents
of work that must support every opinion or professional report issued.
Regarding the regulations specifically related to expert activities concerning
Labor controversies in this jurisdiction must adhere to the provisions outlined in Chapter IV, 'Evidence', of the law.
Provincial No. 11,653 that governs the labor procedure therein. In articles 37 to 42 that comprise the
the chapter addresses the following issues:
experts, and
b) books and records.
The knowledge of the cited text must be added to that of the rulings of the Supreme Court of
the Province of Buenos Aires that specify some characteristics of merely stated issues
in that one.
Likewise, it is reiterated that provincial law 10.620, which regulates the practice of professions in
economic sciences in the same jurisdiction, includes with great detail definitions of aspects related to
an adequate fulfillment of the obligations of the professional acting as a forensic accountant, thus
like the rights that are generated for the professional by the exercise of said activity. Some of
they are in conflict with other legislations, which causes them to be temporarily found
suspended in its application.
For addressing each area of interest in the exercise of expert work, the order outlined in
thelaw 11.653of labor procedure in the province of Buenos Aires.
 Regarding the appointment of experts, regardless of their specialty, the following arise from the law
requirements and precisions:

It will be done ex officio, by drawing lots among the registered professionals listed.
enabled for that purpose.
One to three experts of the same specialty may be appointed at the discretion of the president.
of the court and depending on the nature of the matter in dispute.
Appointment
The expert will be notified.
The above should be supplemented by Resolution 2728, which introduces variations for registration.
of the professionals who wish to act as experts, whose importance has led to a
specific development in this same chapter.
Origin of a new one The draw from the list prepared in each jurisdiction of the courts must be exhausted.
designation I work so that the unscheduled can be drawn again.
The president of the court may also order that the expert examinations be carried out by
forensic technicians or from national, provincial, or municipal public agencies. In
Consultation with public bodies
In these cases, the amount to be paid for those services will be determined in accordance with the
provisions that the Supreme Court of Jurisdiction issues for that purpose.
It will be set by the court when providing the evidence. It cannot exceed twenty (20) days.
Special attention must be paid to the date set for the hearing of the case.
if it has been established that they must have been completed and evacuated at that moment
Deadline for submitting the report
the eventual transfers of the expert report.
The possibility of an oral presentation or defense of the
judgments expressed by the expert in their report.
The parties will be notified within five (5) days.
Transfer of the report If the complexity or length of the report warrants it, the court may set a deadline.
mayor.
They may be filed within the term set by the court.
The expert should be given notice to respond within a period of five (5) days or
Interposition y transfer of before the hearing of the case or at the same hearing if it had been designated.
challenges and/or clarifications If the parties allow the deadline for filing challenges or clarifications to expire
of the report prior to the hearing of they will lose the right to them until the instance in which the hearing of the case is formalized.
cause
Possibility of order of From articles 44, section b) and 45, it arises that the expert may be freely questioned by the
clarifications or explanations in the tribunal, without prejudice to the questions that may be proposed by the parties.
view of the cause Article 45 establishes that the parties will have the opportunity to intervene in the hearing for the purpose of
controller of the trial and will be able to do, with the permission of the president of the court, all the
observations that you consider pertinent.
They do not lose this right for not having raised it at the time of being served with the transfer of the
expert report in question.
Possibility of order of
Clarifications or explanations in the —The president of the court has the authority to limit interruptions when they are
view of the cause that can be deemed inadmissible or merely obstructive or contrary to the
ends of the process.
When deemed necessary, another expert report may be ordered.
New expertise perfect or expand the above, according to the designation system that is considered
relevant.

Copies of the report As many copies must be submitted as there are parties in the process.

-When the experts do not issue their report in a timely manner or are called to provide explanations or clarify
challenges that do not appear without just cause will be nullified ex officio.
Recusal, excuse, vacancy designation, losing the right to earn fees if applicable and
removal excluding them from the list.
If it is about experts from the official payroll of the Judiciary, it will be communicated to the Supreme Court.
Court of Justice to its effects.

As is evident from the preceding detail, the professional who performed the role of expert can be called upon.
to provide explanations regarding the technical conclusions contained in their report. This aspect of the
the orality of the report presents us with a new strategy and materialization of the task, which is addressed in
a specific chapter of this same book, which should be given special attention.
 Considering the peculiarities of the process in the Province of Buenos Aires that here
they have briefly presented, it is advised to consult the works produced by Professor Nicolás
Cap and Miguel Telese5that will allow a deepening of the subject matter for professional practice in the
provincial jurisdiction.

3.3.1. Books and records

As will be outlined in the points related to the organization of the task for the expert professional.
accountant in the context of the Autonomous City of Buenos Aires, the issue related to legal records
that should be carried out relate to the specific responsibility of this, so that, regarding the knowledge about the
The issue must include the treatment given to it in Article 39 of the Labor Procedure Law.
from the Province of Buenos Aires, which establishes the following:
Books and records
Article 39 - When there is an obligation to keep books, records, or according to an applicable legal provision
special payrolls of a labor nature, and at judicial request they are not exhibited or it turns out that they do not meet
Legal and regulatory requirements will place the burden of proof on the employer if the worker or their...
beneficiaries will make a sworn statement regarding the facts that should have been recorded in them.
In cases where the amount or the payment of remuneration in money or in kind is disputed, the
the burden of proof against the claim will correspond to the employer.

As part of the organization of the professional task to be carried out, the need should be considered
to establish if there are points of expertise that must be addressed based on the information provided
in other files or elements submitted as evidence by the parties. It is advisable for the expert to take
due note in the case of such circumstance existing, as within the procedure under analysis is
It is expected that the existence of such elements will be deemed known if the conditions provided in the
Article 40 of the same regulatory body, which establishes:

Files, documents, and collective agreements

Article 40—When administrative or judicial files in process are offered as evidence, they must
to individualize the pieces or circumstances of interest; if applicable, a testimony or copy will be required
authenticated by such evidential elements. When it comes to administrative or judicial files
terminated and added to another trial, it may proceed in the same manner or request the referral of the
same.
If a document added to a pending file is offered as evidence, the sending will be requested
said file exclusively for the necessary period to fulfill the test or authenticated copy
of the instrument.
In the first case, before returning the file, a copy of the document will be left in the case.
When the action offered as evidence refers to a prejudicial matter, it must be
await its completion.
When the collective labor agreements are properly individualized by the parties, it will not be
It is necessary to fill out any test to credit them. To this end, copies will be in the possession of each court.
of the same whose authenticated copies will be added to the records. In case of not having them, the court
must request them from the appropriate authority for such purposes.
The last paragraph is related to the task that the forensic accountant must carry out, since
Based on the reading of the complaint and answer writings, it can be determined which
it is the applicable agreement to the subject of the proceedings.

Consequently, for the determination of the claimed values, one must become familiar with the content.
of those. This last mission can only be carried out by requesting the court access to the copy of
statute or agreement that is in their possession.

3.4. Requirements for registration as an expert in the province of Buenos Aires

By agreement 2728, the Supreme Court of the Province of Buenos Aires established that starting in 1997 the
Professionals who wish to register as experts in their jurisdiction must pass specific courses.
 The content includes rules of procedure and organization of justice, which will be compared with the
programs of the current legal-accounting professional practice seminars in public universities
and private entities in the country, for obtaining the degree, allows one to assert that public accountants already
they must demonstrate knowledge of those.
Regarding the characteristics of the course whose completion must be accredited, it is worth mentioning the
following:
a) By agreements signed between the Supreme Court of the Province of Buenos Aires and the colleges or councils
respectively, the latter will be responsible for the organization, delivery, and evaluation tests.
b) The courses will have a duration of forty-eight (48) hours, and to be able to present oneself for the
respective evaluations, participants must meet 80% attendance.
The final evaluation must be approved with a grade equal to or greater than six (6) points out of
a total scale of ten (10) possible points.
In case of obtaining a grade higher than four (4) and lower than six (6), the applicant will have the right
to appear for a second evaluation, which will be scheduled within no less than forty (40) days
of known the qualification.
To pass this exam, obtaining six (6) points will be sufficient.
Upon passing the final assessment test, the corresponding council or school will issue to you a
professional a certificate, whose validity is based on article 5°, section i) of annex I of the agreement
2728.

4. FINAL CONSIDERATIONS
The topics addressed in the chapter constitute an approach to the exercise of expert activity in the
labor dispute cases. The general topics related to the procedure must be
consulted correlating them with the other chapters of this book that deal with the expert work.
Labor issues specifically legislated must be explored by referring to the sources.
specific regulations that correspond in each case in which the expert has to perform.
The diversity of labor regulations, a result of multiple sources, such as laws and their regulations,
emergency decrees, etc., require a specialization for an effective performance of the task.
These characteristics make it both complex and rich in everything related to the handling of variables.
intimately related to the accounting profession. Among them, the correlation between the records and the
supporting documentation, and the broad spectrum of labor relations are just some of those that
they can be cited.
See graph on the next page
See table on the next page
CHAPTER

THE PERFORMANCE AS A ACCOUNTING EXPERT IN CIVIL AND COMMERCIAL JURISDICTIONS

Marisa Gacio

1. INTRODUCTION
 In that case, a request for the seizure of funds deposited in banking entities may be made; the seizure
of movable property at the debtor's actual residence; or, the seizure of registrable assets.

2.10.4.1. Embargo on funds deposited in banking entities

The expert accountant can request the judge of the case to order the seizure of the funds belonging to
to the debtor up to the amount owed in terms of fees plus what the judge estimates
to cover the additional costs that arise until the effective receipt of the credit.
For such purposes, the banking entity holding the funds in question must be clearly indicated.
embargo, with precise identification of the branch in which the debtor qualifies as a client.
In case it is deemed necessary to involve another person in the withdrawal and processing of the office
it must request express authorization from the judge and ensure it is recorded in the text of the official communication at the time
of its release.
If the judge deems the request for seizure appropriate, he will issue a ruling to the following effect:
Buenos Aires, xx of March 20xx. According to the request, a definitive seizure is decreed over
the funds deposited in the Bank of the Nation Argentina by the company Salerno S.A. until
cover the sum of $34,000 with an additional $3,400 that is budgeted provisionally for
respond to the interests and costs of executing the credit of the accounting expert...
From that statement, the respective letter to the banking entity must be prepared, a task that
It is the responsibility of the interested party, in this case, the expert accountant.

The document to be prepared based on the previous provision would be as follows:

OFFICE
Buenos Aires, xx of August 20xx
Mr. Manager of
Bank of the Argentine Nation
Central House
I have the pleasure of addressing you in the case titled: 'Páez, Ángel vs. Salerno S.A. regarding collection'
of pesos" that are processed before this National Labor Court of First Instance No. xx to me
cargo, Unique Secretariat, located at Diagonal Pte. Roque Sáenz Peña 760, floor nn, Capital, in order to address
to know that a definitive embargo has been decreed on the funds you have deposited in the Bank
from the Nation of Argentina the company Salerno S.A., until covering the sum of $34,000.- plus that of $
3,400, which are budgeted provisionally to cover interests and costs.
Likewise, it is hereby informed that the withheld amounts must be transferred to the Bank.
xxxxxxxxxxxxxxxxxx at the order of the subscriber and as belonging to these proceedings within the term
for five days.

I greet you attentively.

Signature and Seal of the Judge

2.10.4.2. Embargo on goods reported at the debtor's residence

The measure, as in the previous case, must be requested by the accounting expert.
The request must include the identifying information of the property where the existence of the
goods. Once the measure is approved, the judge will issue a ruling similar to the one presented below:

Buenos Aires, July 29, 20xx. The defendant has failed to comply with the request on page 148, regarding
the fees of the forensic accountant shall be decreed as a lien on her assets for the amount of
$358.42, plus the $110 that is provisionally budgeted to respond to increased needs,
interests and costs. Signed: Dr. xxxxxxxxxxxx—Judge—.
 The regulations regarding the submission of evidence are defined in article 459 of the CPCC and state that
When offering the expert evidence, the specialization that the expert must have will be indicated and the proposed...
expert points; if the party exercises the authority to appoint a technical consultant, it must indicate so in the same
written, your name, profession, and address.

4.2. Transfer. Agreement of parties. Disinterest

The other party, when responding to the notice that will be granted to it in accordance with article 367, may formulate the
manifestation referred to in article 478 or, where appropriate, propose other points that you consider should
also constitutes the object of the proof, and to observe the admissibility of those mentioned by the one who offered it, if
exercising the power to appoint a technical consultant must indicate in the same document their name, profession
my home.
If other points of expertise had been presented or the origin of those proposed had been observed
The party that offered the evidence will be granted a transfer to it.

4.3. Appointment of Technical Consultant

Each party has the authority to appoint a technical consultant. It must act in its capacity as
professional with objectivity and truthfulness, what cannot be asked of him is impartiality.

5. PRODUCTION OF THE TEST

5.1. Expertise points. Formulation and provenance

Each party may propose points of expertise, and may also observe the origin of those offered.
on the other hand (art. 458, CPCCPBA). Its formulation follows the procedure established for the offering of evidence.
expert witness.
In the relevant writings, when the parties present expert evidence, they must propose their points of
expertise. The other party, when responding to the view or the transfer of these writings, may in turn: a) propose others
points of expertise that should also be the subject of the evidence and b) observe the admissibility of the
mentioned by the one who offered it.
Consequently, at this stage you can either agree or oppose partially or totally to the points of
expertise offered by the opposing party, in this latter case, maintaining its inadmissibility. It can also
request its expansion and propose other points of expertise, in this case it is appropriate to give a new transfer of the
same to the opposite by virtue of the principle of bilateralism.
In the hearing scheduled in the procedural code for the appointment of the expert, the parties may formulate
manifestations regarding the observations presented on the points of expertise. After hearing the parties, and
taking into account all the observations made, the judge will proceed to establish the points of expertise,
being able to add others, or eliminate those that are deemed inappropriate or superfluous (art. 460, CPCC).
The judge must specifically determine the points on which the ruling will be based if it is of
office, and if appropriate upon request from the party, it may be sent to those they indicate. In turn, the magistrate
It will indicate the deadline within which the expert must fulfill their duties.

Once the points on which the report must be presented are determined, the designation proceeds.
of the expert.
Generally, the parties do not attend the hearing and do not exercise the power to make new
observations. Neither do the judges exercise their power to add or deduct points of expertise, except in cases
exceptional. Only the expert questionnaires submitted by the parties are taken into account in the
initial writings.
For this reason, many times the experts find that in the expert reports offered by
the parties contain points of improper expertise (for example, from another professional field) or
superfluous (useless or irrelevant for the clarification of the investigated facts).

5.2. Registration
Registration takes place during the month of October each year in preparation for the next judicial year.
that begins on the first business day of February and ends on the last business day of December. It must be
registered with the Professional Council of Economic Sciences of the Autonomous City of Buenos Aires
in the case that we are interested in acting as experts in the National and Federal courts of this city.
The process is personal in nature, and if a third party does it, they must provide a power of attorney before a notary.
photocopy of the same. Currently, the Council of the Autonomous City of Buenos Aires offers its structure
electronic registration and support to facilitate the enrollment of registered members, prior to payment of a fee of
$50, as established by Resolution 29/95 of the Supreme Court of Justice of the Nation.

5.3. Request for leave or resignation

The experts must accept all the charges for which they are appointed unless they need to excuse themselves or
they will be rejected. If you need to request a leave for travel or for illness, you must submit a written request.
before the president of the Court of Appeals in Civil or Commercial matters explaining the reasons that
they originate the request for leave or resignation and must also notify in all files
judicial cases in which the expert would have been appointed.

5.4. Designation
The appointment of the accounting expert will be sent to our established address by means of a notice.
that should be updated.

5.4.1. Notification
The notification of the appointment will be made by notice, the content of which is as follows:
1) Name, surname, and address of the designated expert
Court or Secretariat handling the trial and its address
3) Transcript of the court ruling where he is designated with a signature
4) Date and time when the notification was made, a piece of information that is entered by the notifying officer.
the written and said date is relevant for the purpose of computing the deadline to accept the position

5.4.2. Suitability
Article 464 of the CPCC states that in the case of regulated professions, as is the case of the
professionals in Economic Sciences, the expert must be registered in the field to which they belong
the issues on which it must be issued.
5.4.3. Acceptance of the position
According to what is stipulated by Article 469 of the CPCC, the deadline to accept the position is within the third day of
the appointment has been notified. The position is accepted before the court secretary. You must present your ID,
identity document and license that certifies him as a professional.
The 3-day period is calculated starting from the day following the day on which the notice was effectively received.
The deadline for submitting the report is set by the Judge according to Article 460 of the CPCC. If the Judge does not indicate it
In its resolution, it is understood that it is 15 days and starts from the acceptance of the position.

5.4.4. Excusal
If we are covered by any cause of art. 17 CPCC, we should excuse ourselves from accepting the position,
by means of a writing within the deadline we have to accept our task.

5.4.5. Recusal
The expert appointed by the judge may be challenged for just cause, within five days of being notified.
Appointment by ministerial law in accordance with Article 465. The grounds for disqualification of the expert are
foreseen regarding judges; also the lack of a degree or incompetence in the subject in question.
The expert has two options regarding the request for disqualification: one is to acknowledge the cause, which will imply
that the Judge appoint another substitute, or the other is the denial of the cause and will process the request for the
incidental route.

5.4.6. Consequences of non-acceptance

If the expert does not appear within the specified time to accept the position, the Judge appoints another expert without
more procedure and informs the Honorable National Court of Appeals in Civil and Commercial Matters who
they will exclude him from the list of Experts and at the same time the appellate courts will notify the Professional Council of
Economic Sciences.

5.4.7. Remoción. Sanciones

Removal is a sanction that the judge can impose on justice auxiliaries, in the exercise of their
disciplinary powers, when there are justifiable reasons for the same. It will proceed after the expert
I will accept the position and the situations that may arise from it are:
a) Resignation without valid reason
b) Refusing to submit the entrusted report
c) Not presenting the expert report in a timely manner
The removal brings various consequences for the expert:
The Judge will appoint another in his place.
You will be held civilly liable, charging you for the damages and losses caused to the parties, always.
and when they claim it.
You will lose the right to collect fees.
He will be subject to criminal liability.
Will be sanctioned by the Ethics Tribunal of the Professional Council of Economic Sciences, which is
will notify of such removal through an official letter from the relevant Court of Appeals.
5.5. Powers of the expert

5.5.1. Advance of expenses

Within its powers, there is the ability to request an advance on expenses, for the purpose of covering tasks.
very complex and in some cases the transfer to other jurisdictions. This advance must be requested by
the expert, since it does not proceed ex officio and the request must include the amount. In accordance with the provisions of
theart. 463CThe expert has three days from the moment they accept the position to request it. In response to this request, the
The judge has the authority to grant it or not, with said resolution being unappealable.
In Morello's opinion(1)this advance should not be converted into a payment on account of fees
not to limit itself to the expenses that the appraisal actually requires and that the expert should not have to bear.
Add that the judge must reject the expert's request, without transferring it to the parties, when he/she considers that the
expertise does not require any expenditure. On another note, it indicates that once the request is submitted in the appropriate manner
founded, the judge must resolve by setting, where appropriate, the amount of the advance, subject to accounting.
of accounts; the law does not provide any procedure or transfer to the parties, thus avoiding the raising of incidents
that would denature the evidence, causing unnecessary delays.
In case of granting it, the Judge requires the obligated party to deposit it within a period of five days, and if not
Depositing said advance will be considered as withdrawing the offered evidence.

5.5.2. Request for file loan

Another power of the expert is the ability to withdraw the file on loan for study.
actions, of the expert questionnaires offered by the parties and of the order to open the evidence where
Finally, the points of expertise submitted for examination by the expert are set.
There are courts that in the order for the appointment of the expert already authorize the loan of the file. If not
In this case, the expert must present a written document arguing the reasons for this request and it will be granted.
as long as the file is not in court before the imminent hearing to be held in that
moment.
The judge, upon approving the loan, sets the term. Once it is completed, the expert must return it, and from
retain it, the professional will be liable to a fine in accordance with article 128 CPCC. In case of losing the
In addition to paying a fine, you will have civil and criminal responsibilities according to art. 130 CPCC.

5.5.3. Request for summons

On many occasions, the expert goes to the home of the plaintiff or defendant to carry out his
expert report and there is reluctance on the part of the company to display the books and documentation required by
the expert. In this way, the expert must inform the judge of this situation, and to avoid
delays may request that the parties be summoned to set a date, time, and place to present the books.
disposition.

5.5.4. Extension of deadline

If the time required by the work exceeds the time we have to do it, we have the possibility
to request an extension.
However, it is not advisable to request it unless the scope of the work required truly demands it.
impossibility to meet the deadline. And when we talk about the scope, we can refer to the extent
from the questionnaire, the delay in gathering the information required by the Expert, the preparation of the same Report
Expert, etc.
 It is important to note that the days of extension will be counted from the day after the
expiration of the original deadline for the submission of the report. However, one must always be attentive.
to the Judge's provision in order to verify whether the requested term has indeed been granted.

6. WRITING MODELS

6.1. Accountant Expert requests Extension of Deadline

Mr. Judge:
.... Counter Public Expert Counter in the cars titled
... c/.... s/....
1- Who comes in a timely manner to request the extension of the deadline by ten days for the submission of the report.
expert, attentive to the scope and complexity of the topics to be addressed for its completion.
2- That for the reasons stated, we request Your Honor to grant the requested extension.

Provide in accordance
There will be justice.

6.2. Accountant expert requests file loan

Mr. Judge:
N.N. Public Accountant, Court-appointed Expert Accountant in the case titled " ............. vs. ................ regarding ............."
with established address at ............. appears before you and says:
1- Considering the complexity and length of the requested report, the undersigned requests the loan of the file of
Cars for the purposes of their study for a period of 3 (three) days for their study.
2- That for the reasons stated, requests Your Honor to order the loan of the file.
Provide compliance,
There will be justice.

6.3. Accountant Expert requests Notification

Mr. Judge:
N.N. Public Accountant, Court-appointed Forensic Accountant in the case titled '............. vs. ................ regarding .............
with a registered address at ....... appears before you and says:
1- That on several occasions he/she appeared at the home of the party for the purpose of carrying out his/her work
professional.
2- That at the indicated address the documentation subject to the verification was not found, for which the undersigned proceeded
to request the party to provide the elements for a forthcoming visit in order to carry out the comparison.
3- That despite the request, the party has not complied with the request, for which the undersigned finds themselves
unable to carry out his task.
4- That for the above, it requests from Your Honor.

a) Order the party to make available to the Expert the ...

required documentation to complete the expertise questionnaire.
b) Suspend the deadlines for the submission of the report, in light of the circumstances presented.
Provide compliance,
 It will be justice.

7. PRELIMINARY TASKS

7.1. Assistance of technical consultants, parties, and lawyers

The expert appointed by the Judge will be in charge of the expert report. In the expert practice, there may be
present the technical consultants, the parties and their attorneys. They will be able to witness the operations
techniques that are carried out and make any relevant observations that they consider pertinent.

7.2. Evaluation of the expert report

It is necessary to review the procedural documents of: the complaint, the answer to the complaint and
especially the opening order for review (art. 360 CPC) to see if the judge approved the questionnaires or
he rejected a point; and another option is that he has incorporated an expert point.
From the reading of the file, it emerges whether the parties informed the location for the expert assessment. If not...
The expert can request it in writing together with a suspension of deadlines. Also, the parties
they have the right to propose a technical consultant (art. 471 CPCC). The technical consultant has the right to be
present in the expert report and make observations.
It is important and sometimes essential to inform in writing the date and time of the conduct of the expert assessment.
under the penalty that if he does not do it, the expert may be challenged for the nullity of the report.

7.3. Expert points. Jurisdiction

There are many situations in which, within the expert points approved by Your Honor, we are entrusted
attach copies of insurance policies, claims reporting forms, when this type of
Information could have been the subject of the information test. It is inappropriate to require action from
a university professional to simply attach a copy.
The axis that the expert accountant uses to determine whether a point of expertise is or is not within their scope.
The incumbency is to refer to what is stipulated in section b) of theart.
13of thelaw 20.488
b) In judicial matters for the production and signing of opinions related to the following
issues:
In the contests of law 19.551 for the functions of curator.
2. In the settlements of damage and claims and in matters related to transportation in
general to perform the corresponding calculations and distribution.
3. For the statements of accounts in dissolutions, liquidations, and all matters related to assets of
civil and commercial societies and the accountability of property management.
4. In the investigations or expert assessments regarding books, documents, and other elements involved in the
clarification of accounting issues and those related to commerce in general, their practices, uses and
customs.
5. For opinions and accounting reports in administrations and judicial interventions.
6. In the succession trials to prepare and sign the partition accounts together with the lawyer.
that intervenes.
7. As an expert in your field in all jurisdictions. In the issuance of reports, the provisions must be applied.
audit standards approved by professional bodies when applicable.
 8. EXPERT OPINION

8.1. Concept
It is the opinion of a professional after having verified the facts, their causes, and consequences that
requires specific technical or scientific knowledge outside the knowledge of the Judge and necessary
to settle the dispute.

8.2. Presentation of the opinion

In accordance with the provisions of Article 472 of the CPCC, the expert will submit their written report with copies.
for the parties.
The technical consultants of the parties, within the period set for the expert, may submit separately.
their respective reports, meeting the same requirements.

8.3. Deadlines
The deadline for submitting the expertise is set by the Judge, and if it has not been determined, it is understood that it is
Fifteen days and its computation begins from the acceptance of the expert's charge.

8.4. Form
The presentation of the report is in writing.

8.5. Copies
Copies for each of the integral parties must be added to the presentation of the report.
litigation to allow the transfer of the report to them so they can request explanations,
challenges or observations.

8.6. Content
The expertise must have development with justification (detailed explanation of technical operations)
made and the technical principles on which the opinion is based). The report must include the
following topics:
(EXPERT ACCOUNTANT PRESENTS REPORT)
Recipient (Mr. Judge)
-Preamble (Name and surname, character -court-appointed expert accountant-, established address, heading
of the actions and file number)
-Brief reference to the proceedings carried out
-Transcription of the questionnaire or expert report, point by point, followed by the response
 Petition: request the addition of documents to the case with copies for the parties and the request for regulation of
fees according to local tariff scales

8.7. Commercial Books

In order to rule on the legality of the way commercial books are kept, the expert must submit the
accounting of the examined entity regarding compliance with the requirements set forth in articles 43 and following
of the Commercial Code and it will be the judge who will rule on the credibility that the books deserve in
arrangement according to the provisions of article 63 of the Civil Code.

The Draft of the unified Civil and Commercial Code that is currently under debate
parliamentary, in its seventh section of the First Book - Title IV, is dedicated to accounting and statements
countable. The basic contents are as follows: (verbatim transcription).
a) The obligation of keeping accounts is extended to all persons, whether natural or legal,
that develop an economic activity or are owners of businesses.
Individuals for whom keeping books may be burdensome are exempt from such obligation.
such as farmers and professionals not organized in the form of a company. Likewise, authorization is granted to the
local jurisdictions to also exempt those activities whose turnover volume does not justify the
carried away by books.
The possibility of keeping legal accounting on a voluntary basis is introduced in favor of all individuals.
if they decide so - on an equal footing with the obligated subjects.
b) Regarding the bookkeeping, emphasis is placed on the veracity of the records, the
that the facts, instruments, and documents that give rise to them must reflect, based on criteria and grounds
uniforms—in order to avoid distortions caused by their variations—and with character
eminently inclusive of all acts that may have an effect on the assets of the obliged party and the
result of its operations.
c) The "Diary" is imposed as a minimum mandatory book for the recording of operations in
chronological order, and that of 'Inventories and Balances', for the detailed recording of assets,
liabilities and equity, at the beginning of activities and at the end of each fiscal year, as well as for the
transcription of the annual financial statements. It also adds, with mandatory character, any other book
the record that is deemed necessary based on the dimension and characteristics of the obligated party's activity or
those who specifically impose the Code or other laws.
d) The possibility is anticipated, upon authorization, of carrying books, records, and the archive of the
backup documentation by existing alternative means (electronic, magnetic, optical, etc.)
and others that may be created in the future. The possibility of the Inventory and Balance book is excluded from this.
where the characteristics of the requested alternative media should be registered, as well as the
authorizations granted, with the referred means having to guarantee the unalterability, inviolability,
verisimilitude and completeness of the records.
e) The Public Records of each jurisdiction have been entrusted with the identification of the books.
mandatory, as well as the granting of authorizations for their transport by alternative means.
f) Regarding the way of carrying the books, the safety standards that pertain to faith are maintained.
of its registrations. They are expressly imposed for the books and records, the language and the currency
national, which excludes other languages or technical or foreign units of measure.
g) The place where the accounting books and records must remain is expressly set, which will prevent
controversies regarding this. At the same time, that same place is established as the one in which it must be carried out
in their case, the evidentiary proceedings regarding the books and records of the obligated party, even if they are found
in jurisdiction different a the del Judge what the order.
h) It is stipulated that the records must allow for the determination at the end of each fiscal year.
heritage, its evolution and its results, establishing the minimum content of the statements
annual accounts.
i) Regarding the conservation of books and records, a period of ten years is established, which is
will compute: from the last entry in the case of the books; from the last note made in the case
from the other records and from the date of its issuance, in the case of the instruments or documents
backups.
 k) The general principle of confidentiality is upheld, prohibiting generic investigations in order to
determine whether people maintain legal accounting or not.
The specific place where the test on the books and records is to be carried out is established.
and supporting documentation, even if it is in a different jurisdiction than that of the Judge who orders it,
what will prevent controversies regarding this.
In safeguarding confidentiality, the evidentiary examination is limited to strictly the issues at hand.
debate, without prejudice to the generic examination of the accounting system in order to establish whether it is conducted in
in accordance with legal prescriptions.

8.7.1. Supporting documentation

The supporting documentation is not only made up of invoices, delivery notes, checks, receipts,
contracts, but also with the existence of clear minutes on the entries arising from calculations
numerical or adjustment entries such as the provision for uncollectible accounts, the depreciation of assets
of Use, and that these recordings are supported by the working papers.
Satanowsky, M. expresses an opinion.(2)that
commercial books are not always enough to prove credit of the
merchant, even if their opposite is also a merchant and does not keep their books in order and deals with acts
relating to the commerce of the one presenting them. The law states that the books must be kept 'in form' and
theart. 43 the Commercial Code requires that accounting records must be supplemented with the
respective documentation; if there is no documentation to complement the entries, it cannot be stated
that the books are carried in form, because it does not seem plausible that the merchant lacks all the
documentation related to the business that is established in them. In other words, the
The certificates must match the receipts; each entry must be documented.
There is a sector of commercial doctrine that adheres to the position of the autonomous evidentiary value of the
books and among them is Dr. Dieuzeide(3)who opined about the autonomous evidentiary value of
the commercial books regarding supporting documentation. He argued that the accounting registration
it is not just a mere documentary duplication of the existing document being registered, but it has value
own that does not arise from the documentation it must complement, and that this complement only
requires a link.
The requirement for documentary support for each entry distorts the regime of book evidence.
replacing it with documentary or instrumental evidence. Only a general link should be required between
accounting entries and documents, an opinion that seems to be supported by the wording of the Code of
Commerce 63 when referring to the seats without any other specific mention(4).
An accounting certificate devoid of any documentation raises doubts about its authenticity. The evidence of
books do not have an automatic value that imposes on the judge the duty to accept it without evaluating it according to the
case circumstances; in this sense it has been resolved that the plaintiff's claims lacked effectiveness
probation since it was not appropriate to judge the shipping documents and invoices as appropriate supporting documentation
authenticity, denied by the opposing side, was not validated by any other element of judgment.(5)

8.7.2. Technical fundamentals Reasoned conclusions

In accounting or economic matters, it is essential to know the technical principles that govern them, being
integrated by:
1) The legislation on accounting records,
2) The ways to manage accounting,
3) The legal and professional provisions regarding valuation and display. And,
A thorough knowledge of factual-enunciative procedures.
The expert must answer only what is requested in the Expert Questionnaire approved by the Court; not
must exceed or issue on unsolicited matters, and to answer the classical point of expertise,
"any other relevant information for the litigation" should be interpreted restrictively.
 That the conclusions of the report are clear, firm, and a logical consequence of its foundations.
It will allow the report to have evidentiary force. It must respond with a reasoned opinion.
Consequently, and for that reason, the need to justify the report makes it similar in formal aspects to the
judicial decision, but in rigor the expert opinion or expertise is "a tool in fact," so
The judge can consider it "in whole" or partially.(6)

8.8. Transfer
From article 473 of the CPCC it arises that the expert opinion will be subject to transfer to the parties so that they,
or on their own they can raise the request for clarifications, observations or challenges.

8.9. Explanations. Challenges. Invalidity

This is the opportunity for the expert to rectify or confirm their expert report, after an analysis of
the issues raised by the parties. The judge has the authority to summon the expert to provide their explanations
orally.
The expert who does not attend the hearing or does not present the supplementary or complementary report within
If the deadline is not met, they will lose their right to collect fees, in whole or in part.

The explanations aim to expand the foundations of the dictated opinions.

timely and to remedy any omission that the expert may have incurred or to correct any error of
type of material.
The observations are assessments made by the parties about the expert's opinions.
substantial objection.
The challenges have a purpose in emphasizing a substantial error in the content of
statement.
The parties may raise the nullity of the ruling in the event that it was based on defects such as
it may involve the expert incorporating documentation into the file, the incorrect identification of
verified books, the expert exceeding their limits when answering the proposed points.

8.10. Probative force of the opinion

Regarding the evidentiary effectiveness of the Expert Opinion, we must refer to what is stipulated in article 477.
from the CPCC that states: "the probative force of the expert opinion shall be assessed by the judge considering
it accounts for the expert's competence, the scientific or technical principles on which it is based, the agreement of its
application with the rules of sound criticism, the observations made by the technical consultants or the
lawyers, according to articles 473 and 474 and the other elements of conviction that the case provides.
In the doctrine there are diverse opinions related to the effectiveness or evidentiary value of the expert report.
It is a widely held opinion that this is not binding, as it does not oblige the judge to consider it in any way.
partial or in its entirety.
On the other hand, the prestigious litigator Roland Arazi(7)they consider it an instrument
"binding" when there are no objections or, if there are, the expert's responses are so firm and
conclusive, that leave no doubts and assert confidence to the judge.
The unified draft of the Civil and Commerce Code establishes concrete rules regarding
the evidential effectiveness of accounting, including all possibilities, both among those required to maintain
accounting and those who choose to do so voluntarily, as among these and those who are not obligated.
 9. MODELS OF ACCOUNTING EXPERTISE

9.1. Model of expert evidence in the Civil Jurisdiction

The forensic accountant presents the expert opinion

MR. JUDGE:
MARISOL RODRÍGUEZ, Certified Public Accountant, Court-Appointed Forensic Accountant in the case "VITALE,
GUSTAVO GABRIEL vs. HUERTA, CARLOS ALBERTO AND OTHERS S/ Ds. AND Ps. with established domicile in
Avenida Cabildo 780 First Floor to V.S. I respectfully state:

Points of expertise plaintiff party

A chartered accountant is appointed to review the books of the party mentioned in the guarantee and then proceed to report.
the following:
1) Who was driving the vehicle mentioned in the chapter 'facts' of this complaint, at the time of
the harmful event occurs in its circumstances.
The cited party in warranty has no report of the incident that originated this litigation and does not cover it either.
to the vehicle unit MERCEDES BENZ —PLATE TQS891 as shown in the vehicle list
insured to the Passenger Transport company DOTA S.A. at the time of the incident.
Who was the owner of the MERCEDES BENZ vehicle - LICENSE PLATE TQS891 - at the time of the event?
the accident.
RESPONSE: As can be inferred from the response to the previous point of expertise regarding the accounting of the
The owner of the vehicle is not present, as they were not inside the fleet of units.
secured.
3)It is noted that some of the co-defendants reported the existence of the car accident to their
insurer, and where applicable, the version of the facts.
ANSWER: I refer to what was stated in the previous point.
4) Check if there is a policy extension, made by the one mentioned in guarantee in favor of the co-defendants.
and in their case, terms, scopes, conditions, and other circumstances of it. In case there exists
claims of losses by the defendant, in the presence of the respective guarantor, the expert
must accompany true copies of the same.
The only thing that exists between the aforementioned and DOTA S.A. is a policy under No. 400248/4 in force.
between 12 PM on 12/31/07 and 12 PM on 01/31/08 with a fleet of 301 vehicles.
5) If the guarantor, in the event that the complaint existed, made any budgetary provision.
related to the car event and whether it has covered any expenses that the plaintiff was supposed to incur for her
treatment.
Evidently, there is no report in the books mentioned regarding the car accident.
Any other data and point of interest that the expert can report, according to their scientific knowledge
and your loyal knowledge and understanding. ANSWER: It is all I believe my duty to inform regarding the mission.
commissioned.

Expert points part cited in guarantee

 The unique court-appointed expert accountant is designated to examine the books of our represented party.
report:
a) If they are carried out in a timely and proper manner;
Yes, the mentioned ARGOS MUTUAL PUBLIC TRANSPORT INSURANCE
PASSENGERS carry their books legally in accordance with the details provided below:
Inventory and Balance Book No. 5 belonging to ARGOS MUTUAL TRANSPORT INSURANCE
PASSENGER PUBLIC, registered as mutual number 2040 in the Register of Entities
Insurance dated 3/02/98, with an address at Esmeralda Street 288, 6th Floor, of the Autonomous City of
Buenos Aires. It was signed by the National Institute of Associativism and Social Economy, under No.
registration A 18542 dated 30/09/2009. The signing official of the oversight body has been Mirta
Haydee Llamas.
The present record consists of 1,000 pages.
The first page used is page no. 2 containing the transcription of the Pending Claims Detail.
corresponding to the date 30/06/09 and the last registration is found on page 255 and corresponds to the
Report on Other Results of the Technical Structure of the Balance Sheet closed on 31/12/09.
a.2) Daily General Copy Book No. 1 belonging to ARGOS MUTUAL INSURANCE
PUBLIC PASSENGER TRANSPORT, with Registration number 2040 registered in the Registry of
Insurance Entities dated 3/02/98, located at Esmeralda Street 288, 6th Floor of the City
Autonomous of Buenos Aires. It was signed by the National Institute of Associativism and Social Economy,
under registration No. A 18542 with date 30/09/2009. The signing official of the oversight body has
Maria del Carmen Dominico serves as the Coordinator of the National Registry of Mutualities.
This record consists of 1,000 pages.
The first page used is number 2 containing the transcription of the initial entry dated 03/31/98
accounting for the transfer received from Argos S.A. on February 28, 1998.
The last registration is in folio 992 and corresponds to the operations entry dated
February 28, 2010
b) If the vehicle marked Mercedes Benz with license plate TQS891 was insured on 01/24/08 with Argos
Mutual Insurance of Public Passenger Transport.
RESPONSE: From the Issued Policies Register No. 1 signed by the Social Development Secretariat
dependent on the National Institute of Cooperative and Mutual Action belonging to ARGOS MUTUAL OF
PUBLIC TRANSPORTATION INSURANCE FOR PASSENGERS, The signing official of the body of
the controller has been María del Carmen Dominico in her capacity as Coordinator of the National Registry of
Mutualities.
This record consists of 1,000 pages.
The first page used is number 2 containing the transcription of the initial entry for the issuance of Policies.
dated March 1998 and the last registration can be found in volume 462.
On page 363, Policy No. 400248/4 is registered, issued in favor of DOTA S.A.
10/01/08 and covers the insurance of a fleet with 301 vehicles belonging to Lines 28-44-101.
settled with a prize value of $52719.93 made up of Premium $43142.33; Taxes $517.71 and VAT
for $9059.89.- Having reviewed the entire list of vehicles, the MERCEDES vehicle is not found.
BENZ—DOMINIO TQS891, which has been reported as involved in this litigation.
c) Any other relevant information for the case.
This is all I believe I should report regarding the assigned mission.
Given all the above, I request from you:
1st) The aggregation in vehicles of this EXPERT REPORT with FOUR COPIES according to
provided by Article 120 of the CPCC and the Policy only in original for the reasons previously outlined.
2º) The fees corresponding to my professional work in the case shall be regulated in due time.
character of Auxiliary in Justice, Court Expert Accountant, to a single and better illustration of the Judge,
taking into account that they constitute a percentage of the final amount of the litigation, including
of principal and interest that may correspond.
Prove V.S. in accordance that
 There will be justice

9.2. Model of Expert Opinion in Commercial Jurisdiction

The expert accountant presents the expertise

Senior Judge

A. M. P., Certified Public Accountant, residing at 2345 Monroe Street, 3rd floor, apartment 'A'
from Capital Federal, P.O. Box 1428, appointed Forensic Accountant in the case titled 'D. C. S.A.C. and T. C/ B.'
N. A. s/ Summary, case No. 60.181, I say to you:
I come to present the accounting expertise commissioned by Your Honor, for which I have constituted myself in the
address of the plaintiff.

Expert points requested by the plaintiff

1) If the plaintiff keeps the books in legal form
The plaintiff presented the accounting books detailed below:
General Diary was authorized by the General Inspectorate of Justice under No. 55 dated 05/24/88 (File.
03.732/12.952), with the verified period: June 1993. The present record has 1,000 pages and
it has been used until 643.
Inventory and Balances No. 33 was endorsed by the Public Registry of Commerce (General Inspection of)
Justice) dated 11/5/90 under No. A 5831, consisting of 1,000 pages, with the last one used being page 500 and
with the transcript of the Balance closed on 31/12/92.
Register of Debtors with authorization granted by the General Inspectorate of Justice by Resolution
No. 00566 dated 2/9/83 (File 1048/a No. 283,527), which authorizes the use of specimens of leaves
corresponding to records obtained by computer system. The verified period is the month
of September 1993 and the invoicing date is 13/8/93.
The examined books meet the requirements set by the Commercial Companies Act and
the Commercial Code.
2) If from the mentioned books and supporting documentation the existence of the debt arises that
the plaintiff attributes to the undersigned.

According to the verifications carried out, in the book 'Debtor Subledger' corresponding to the period
September 1993, billing date 31/8/93, on page 6843 under summary number 839.773,
Client No. 3633-587345-4058, B. N. A., has a debt of $3,410.18, charged to account Portfolio
Delinquents/ Unrecoverable local/International. This record is consistent with the claimed debt and with the
credit documentation added to the records.

Expert points requested by the defendant party

1) If the plaintiff keeps the books in legal form.
The response to this point is provided when answering point No. 1 of the expertise requested by the plaintiff.
2) If of the books mentioned y documentation that the support
even the one added in this claim shows the existence of the credit that D. C. A. S.A. C. and T.
registered in your favor against the defendant, and how much it amounts to as of the date of the expert report.
I refer to what was reported when answering point No. 2 of the appraisal requested by the plaintiff.
For the reasons stated, I request that you consider the accounting expertise submitted on time and in due form.
 Prove that V.S. in accordance with
There will be justice

10. FEES

10.1. Fees. Regulation

10.1.1. Regulatory base

The tariff scales for the actions of court-appointed experts are those established in article 3.
Tariff Regime for professionals in Economic Sciences of the decree-law 16.638/57. When
expert reports in ordinary, special, summary, and universal trials will be governed by scale 4
at 10%, applicable on the amount of the lawsuit, involving only one professional.
In its origin, the scales provided by decree-law 16.638/57 were of "public order". This implied
that the judges were prohibited from setting fees lower than the amounts or percentages
minimum established. Instead, starting from the issuance of theLaw 24.432,through Article 13 they were allowed
for the judges to set fees without regard to the established minimum amounts or percentages.
The tariff provided for in Article 3 of Decree-Law 16.638, which ranged from 4 to 10%, also took into account a
minimum guaranteed in accordance with the provisions of art. 3, inc. g). But due to the application of thearticle 13, law
24.432the separation of that apartment was made viable.

10.1.2. Public order

From theLaw 24.432the public order of the fees ceased and were incorporated into the legal regime a
series of provisions, all aimed at reducing professional fees. Thus, and for only
highlight a rule, we reproduce that of theArticle 10of theLaw 24.432that establishes:
The judges shall regulate the fees of the experts and other auxiliaries of Justice, in accordance with the
respective tariffs, having to adjust them, even below their minimum caps, to the regulations that
will be practiced in favor of the other intervening professionals, considering the nature, complexity,
quality and duration of the respective works.

10.2. Opportunity in which regulation applies

10.2.1. General principle

Both the law on tariffs for professionals in Economic Sciences and that of lawyers take
as the basis for the amount of the trial. This amount arises from the amount set in the judgment or in the
transaction. This arises in the case of professionals in Economic Sciences of article 3, section f).
When a final judgment is issued in a contentious case, the judges will proceed to
typically in all cases the fees corresponding to the actions of the professionals included in
the current tariff regime if they had not done so earlier during the course of the process.
According to the provisions of article 163 point 8) of the Civil and Commercial Procedural Code of the Nation, the
The judge, when issuing a first instance sentence, must regulate professional fees.
 However, except in labor courts, the regulation of fees is postponed until
There is a firm resolution on the merits of the matter, wasting professionals' time.
Well, they go up to the Chamber twice.

10.2.2. Abnormal termination modes of processes

An abnormal mode of termination of a process is understood as any unilateral or bilateral procedural act,
voluntary or forced that interrupts the development of a process. These modes are regulated among
articles 304 and 318 of the CPCC.

a. The withdrawal
Two types of withdrawal are anticipated:
Withdrawal of the process can be requested by the parties in writing, which will result in its termination.
process. In the event that the claim is not notified, only the plaintiff can request it, and in the case
Opposition requires the consent of the defendants. But it allows to initiate a new process.
later.
Withdrawal of the right implies that the plaintiff renounces their right and in case of being the claim
accepted by the Court, no other proceedings for the same object and cause may be initiated in the future.
For their proposal, only the request of the actor is necessary.
In these two types of withdrawal, the Multiflex Plenary applies in the Civil jurisdiction.(8)for the regulation
of fees.

b. The transaction
The transaction of litigated rights is a bilateral legal act of civil law, it is also an act
procedural, executable title equivalent to the sentence(arts. 850from the Civil Code and 500, section 1 of the Code
Procedural). And as such, it offers enough security for the legislator to select it in order to
determine the amount of the regulation of fees for judicial action, which cannot be different for
those who did not intervene in it. For if it is admitted that the transaction is not enforceable against third parties,
they could not invoke it as the culmination of the process(art. 1199of the Civil Code), which would lead to
to an absurd solution.
In matters of transaction and fee regulation, the Civil plenary "Murguía, Elena" is applicable.
Josefina c. Green, Ernesto Bernardo s/ Compliance of contract
that the transaction or settlement that ends the dispute is enforceable for tariff purposes
professionals who intervened in the process and did not participate in the respective agreement.

c. Reconciliation
It is very similar to the transaction but the agreement in this case is reached in the presence of the
magistrate.

d. The expiration of instance

Since the dispositive principle governs in civil procedural matters, it corresponds to the parties in general.
and the plaintiff in particular to promote the process and the evidence, if not fulfilled in time will be subject to
the expiration of the instance is ordered, which does not harm the action that may be initiated again
new trial.
Generally in these abnormal situations, the expert, unless he is going to examine the cause, does not notice
this situation and must petition the Court to regulate their fees. By way of example, it
adds the action of an accounting expert who promoted the case and after the expiration was declared
By order, his fees were regulated. In these proceedings 'Hydro Agri Argentina S.A. v. Drovet S.A.'
S/ ordinary" File No. 84040, which was processed before the National Court of First Instance in the
Commercial No. 10 Secretariat No. 20, the claimed amount in the lawsuit was taken as the regulatory base plus
the interests calculated by the accounting expert in her expert report(9).

10.2.3. Bankruptcy incidents

The public accountant can be appointed in an incident of review or late verification at the stage
from the accounting expert report. Review incidents are processed in the Bankruptcy Court.
Once the fee regulation is signed, the credit verification procedure is not necessary. It is
a debt after the bankruptcy with the preference of article 240 L.C.Q. Therefore, once it is final, it must be paid.
by whoever is responsible for the costs or by solidarity. One should only wait for the distribution of
funds if it must pay a bankruptcy.
Tariff regime
Regarding incidents in credit review processes and late verification in the first instance
we refer to what is stated in theart. 287from theLaw 24.522what determines that fees will be regulated
in accordance with the provisions of local tariff laws, taking as the amount of the main process the one of
own credit implied and verified. The local tariff law for professionals working in
The jurisdiction of the Autonomous City of Buenos Aires is governed by decree-law 16.638/57, which does not address the
regulation of fees in incidents. Consequently, by application of art. 12 of said body
regulatory, in all matters not legislated, the applicable law applies to the
lawyers, forwarding said regulation to thelaw 21.839currently in force. This last standard provides in the
Article 33: "In incidents, the fee will be regulated between two percent (2%) and twenty percent (20%)"
of what corresponded to the main process.

10.3. Imposition of costs

The issue of the imposition of costs in a review incident is governed 'prima facie' by the principles
general principles of the subject (art. 68 CPCC). Nevertheless, within the framework of a review incident
admitted, the decisive factor for establishing the costs regime lies in determining who has been the
responsible for the substantiation of the case; which was the litigant who, through negligence or other reasons, gave rise to
the procedure became necessary. From this perspective, it will be necessary to analyze who is the cause of the wear and tear.
jurisdictional, because in this matter the principle of defeat must be integrated and interpreted
harmoniously with the economy of expenses that characterizes the bankruptcy process.
In the incident of late verification, the costs must be borne by the late creditor, even in the
assuming that I were to be victorious in my claim, as it would also provoke a jurisdictional waste
futile, the late verification prevents knowing the real constitution at a given moment
the passive mass, and moreover it avoids the control of the remaining creditors, withdrawing from the 'bankruptcy proceedings'
embedded in the process of timely verification, therefore the detachment in this type of incidents of
objective principle of defeat.

10.3.1. Costs Assessment Regime

There are different alternatives for the imposition of costs:
The general principle (art. 68 of the CPCC) is to impose the burden of costs on the losing party.
 Another way of imposing costs is by their order or in the order caused (art. 77 of the CPCC) which is the
regime in which each party must pay their own and also half of the common expenses. This
regimen(10)It generally applies when the party that is defeated acted based on a probable or founded reason.
to litigate or in situations where there is contradictory jurisprudence or laws apply
new.
In case of disinterest in the expertise or abstention (art. 478 of the CPCC), the fees of the expert and the
Expenses will always be the responsibility of the one who requested the expert report.

The costs are imposed on the winner when, in accordance with the records of the process,
demonstrate the futility of the claim or its presentation in notably exaggerated terms.

10.3.2. Costs judgment: solidarity

Article 9 of theLaw 24.432came to modify the rule that was in force until then in theart. 77of the Procedural Code
Civil and Commercial Code of the Nation that allowed experts to claim the total fee from any of the parties.
whether the parties were condemned in costs or not.

This rule was inspired by the condition of impartiality that an accounting expertise must have.
allowing in some way for the expert to be free from interest in the outcome of the trial. A
plenary session of the National Court of Appeals in Commercial Matters on February 2, 1950(11) there was
indicated that: "Although at one time it has been stated that among those (the parties and the expert)
there is a mandate relationship, that doctrine must be discarded, as the requirements that are lacking in the case.
they configure that contract... There is, instead, a service provision that must be compensated, even when
"it should not be reasonably held that a contract of such nature exists" (art. 1137 Civil Code). In
such circumstances, in the case of a service location, provided by a third party unrelated to the parties whose
The specific mission consists of advising the judge on technical matters, which he then performs.
a mission as an assistant of justice; that the action fulfilled has been carried out in the interest of both
litigants, as it is a necessary and independent procedure within the judicial process to reach
the pronouncement of the judicial bodies, it follows that for all these reasons, and
because the expert must be detached from any interest related to the outcome of the trial, there are reasons
sufficient equity and justice to recognize the right to take action against any of the parties
indiscriminately for the total amount of fees, without prejudice to the rights that belong to the latter to
repeat among themselves, in the proportion that corresponds according to the settlement of the dispute.
However, this well-argued plenary,Law 24.432he changed the axes incorporating a last one
paragraph to Article 77 of the Procedural Code stating that the acting experts can only claim from the non...
condemned to pay costs up to 50% of the fees that were regulated.

10.3.3. Limitation of liability for the payment of costs

TheLaw 24.432came to set limits on the responsibility for the payment of costs for which
It should have reformed the Civil Code and the Labor Contract Law. Below, I transcribe the legal norms.
modified.
Article 1. It is incorporated into theArticle 505of the Civil Code the following paragraph:
If the breach of the obligation, whatever its source, results in judicial or arbitration litigation, the
responsibility for the payment of costs, including professional fees of all kinds incurred there
corresponding to the first or only instance shall not exceed twenty-five percent (25%) of the amount of the
sentence, award, transaction or instrument that puts an end to the dispute. If the fee regulations
practiced in accordance with tariff laws or local customs, applicable to all professions and
specialties exceed this percentage, the judge will proceed to prorate the amounts among the beneficiaries. For
the calculation of the indicated percentage will not take into account the amount of the professionals' fees that
they would have represented, sponsored, or assisted the condemned party in costs.
Art. 8°. It is incorporated into thearticle 277of theLaw 20.744(t. o. 1976), the following paragraph:
The responsibility for the payment of procedural costs, including all types of professional fees therein
accrued and corresponding to the first or only instance, shall not exceed twenty-five percent (25%) of
amount of the judgment, award, settlement or instrument that resolves the dispute. If the regulations of
 fees charged according to tariff laws or local customs, applicable to all professions
and specialties will exceed that percentage, the judge will proceed to prorate the amounts among the beneficiaries.
For the calculation of the indicated percentage, the amount of the professionals' fees will not be taken into account.
that would have represented, sponsored, or assisted the party condemned in costs.
This cap application implies that regulated fees are fictitious, as they are generally
reduced by the application of the same generating a confiscation of the property rights of the owner
of the fee.

10.4. Appeal
The deadline to appeal the fees is 5 days from the notification (art. 244 of the CPCC).
Liberatory Prescription:art. 4023of the Civil Code.
Prescription, as a means of extinguishing actions, has deadlines for it to take effect. It exists in the
Argentine law a general deadline established by theart. 4023of the Civil Code which is the 10-year one, theart.
4023The Civil Code states that "Any personal action for a debt that is due shall be prescribed by ten years."
unless otherwise provided for. In terms of regulated fees for experts, this provision applies.
decadal (12).

10.5. Perception
Deadline for payment: We must resort complementarily to our fee law toart. 49of
thelaw 21.839whose text states that: "All fees regulated by the courts must be paid by the party
condemned to costs, within thirty (30) days of being notified of the firm regulatory order, if a
shorter term.

10.6. Execution
The process of executing fees is akin to the execution of a judgment.
For the origin of the execution of the fees, it is an unavoidable requirement that they have been
regulated in terms of costs. This element, which gives sufficient certainty to the enforcement claim
to open the execution process by configuring the executive title and requires that the statement that the
fixed, it is consented or executed.
It is not provided for by our fee schedule regarding the collection of fees.
regulated in trial in such a way that the action for collection will be processed through the execution of sentence.
Regarding the execution of the sentence, to know the rules of competence we must situate ourselves in
the regulated by thearticle 501of the Civil and Commercial Procedural Code of the Nation.
The competent judge will be:
The one who pronounced the sentence.
2) That of another territorial jurisdiction if the object of the execution imposes it, totally or partially.
3) Those who have intervened in the main process if there is a direct connection between successive causes.
Regarding the deadline for payment, the jurisprudence is divided, as some understand that the delay is of
full right and others that require prior payment demand. Both positions are cited below
jurisprudential
The tariff law regime for lawyers that sets a 30-day deadline for fee payment
regulated, a term that can be reduced by the judge and whose expiration causes full default
law is equally applicable to professionals in economic sciences, by virtue of the reference that
It contains article 12 of decree-law 16.638/57 (CNCiv., room F, 30/7/1984. 'Excurra Héctor A. L.', ED 111-
681".
 The constitution in default of the obligation to pay regulated fees in trial, when it has not been
a deadline has been established for this purpose, it requires a request, since it is not the case provided in the
article 509, first paragraph of the Civil Code, but of obligations of immediate enforceability (Special Civil CNE and
Com., room III, 12/2/1982) ED, 98-513.

10.6.1. Different ways of executing fees

The expert can use according to the asset information they have obtained from the obligated subject.
payment of their fees different types of garnishments detailed below:

10.6.1.1. Embargo on Current Accounts

The embargo implies a debit that, by court order, must be made on the checking account. It is about
a debit because it is necessary for the funds applied to it to be withdrawn from the account and transferred to the
court account. To carry out this debit it is necessary that there is a credit balance and the seizure will be made.
effective to the extent of that balance. The seizure cannot apply to funds transferred to the bank against
a debit balance in the current account. The authorization to overdraw is limited to maintaining a
credit availability but does not transfer funds to the client. Financial institutions and third parties must
transfer the total liquid amounts seized to an account in the name of the cars and at the order of the court
which must be opened in the judicial deposit bank, up to the total amount of the title
executive.

10.6.1.2. Credit Embargo

It will also be possible to request the blocking of liens on the debtor's credits as collections that they
have to carry out any client, lawsuits in which there are amounts to collect or any other credit in favor of
this.

10.6.1.3. Embargo on movable property

•Registerable furniture: They are the items that must be recorded in registers in order to be enforceable against
third parties (registration of aircraft, ships, etc.).
Non-registrable furniture: These are items whose possession implies ownership (household items, clothing, etc.).
In this case, the seizure will be limited to the assets necessary to cover the credit that is being claimed and the
costs.
As long as the seizure or judicial administration of the seized property has not been arranged, the debtor may
continue in the normal use of the thing.
If the seized goods are movable, they will be deposited under judicial order; but if it were about the
from the house where the debtor lives, and if they are susceptible to seizure, he will be placed in
depository of them, unless, due to special circumstances, it was not possible.
Unattachable assets.
In accordance with the provisions of Article 219 CPCC, no embargo shall ever be imposed:
1°) In the everyday bed of the debtor, of his wife and children, in the clothes and furniture essential for his use,
nor in the necessary instruments for the profession, art, or trade that he/she practices.
2°) On the tombs, unless the credit corresponds to its sale price, construction, or supply.
of materials.
3°) In other assets exempt from seizure by law. No other asset will be exempt.
 Kidnapping
The seizure of the movable property or livestock subject to the trial proceeds when the seizure does not
ensure on its own the right invoked by the applicant, provided that instruments are presented that
make plausible the right whose effectiveness is to be guaranteed. It will proceed, likewise, under the same condition,
whenever it is essential to provide for the custody or preservation of things to ensure the outcome of
the final sentence.
The judge will appoint the official institution or person that is most suitable as the custodian; will establish its
compensation and shall arrange the inventory, if it is indispensable (art. 221 CPCC).

10.6.1.4. Embargo on real estate

According to the provisions of Article 538 of the CPCC, if the seizure is to be made effective on goods
real estate or in registrable furniture, it will be sufficient to note it in the registry, in the manner and with the effects that
the result of the law. The orders or exhortations will be issued within forty-eight hours of the
provision that will order the seizure.
Exceptions: family property
The family allowance is intended to protect the family's assets and put the property to
except for a possible execution by auction. This means that a property registered as a family asset,
it can be garnished but cannot be executed for debts incurred after its registration as such, unless
for debts related to the property (common expenses, ABL, etc.)
Law 14.394 defines a family as that formed by the owner and his wife, children (including the
adoptive), grandchildren, parents, grandparents and their relatives up to the third degree of consanguinity (nephew, grandchild
the great-grandson.

Only in the absence of a spouse, parents, or descendants, is it recognized as family.

for this procedure to the siblings, uncles, and nephews who live with the property holder. Auction
Once the relevant deadline has passed and provided that the debtor has not raised exceptions nor has...
the debt paid, the expert is in a position to request the appointment of an auctioneer to the
effects of ordering the sale through auction of the assets in compliance with the provisions of arts. 573 and
sections of the CPCC.

10.6.1.5. Revenue collector (art. 223 CPCC of the Nation)

At the request of the creditor and in the absence of another effective precautionary measure or as a complement to the one ordered, it may
to appoint a UN (1) collecting supervisor, if it should fall on income-producing assets or
fruits. Its function will be limited exclusively to the collection of the seized part, without any interference
in the administration.
The judge will determine the amount of the collection, which cannot exceed FIFTY PERCENT.
(50%) of the gross proceeds; this amount must be deposited in the court's order within the deadline that
this determines.

10.6.1.6. General inhibition of assets

Article 228 of the CPCC states that in all cases where there is a possibility of seizure, this cannot be carried out.
to become effective due to the lack of knowledge of the debtor's assets, or because these do not cover the amount of the claimed credit,
a general injunction to sell or encumber his assets may be requested against him, which must be left without
effect as long as sufficient assets were presented by embargo or sufficient security was given.

The one requesting the inhibition must provide the name, surname, and address of the debtor, as well as all
another data point that can identify the inhibited, without prejudice to the other requirements imposed by the laws.
 The inhibition will only take effect from the date of its registration, except in cases where ownership is
I would have transmitted beforehand, in accordance with the provisions of the general legislation.
No preference will be granted over those annotated later.

10.6.1.7. Bankruptcy petition

According to the state of the Bankruptcy Law, the creditor must prove the existence of some fact.
revealing according to Article 79, without the need to file an individual collection action.
The distinguished jurist and former Commercial Judge, Eduardo Favier Dubois, points out that: "it is notorious that
proliferation of bankruptcy petitions as a coercive means to obtain the individual collection of credits by
a more expeditious and less costly route than the executive judgment, with a purpose radically opposed to the
intended by the legislator.

11. THE PERFORMANCE OF THE PUBLIC ACCOUNTANT IN THE PROVINCE OF BUENOS AIRES
In the Province of Buenos Aires, the Supreme Court of Justice regulated the registration of experts.
assistants through agreement 2728 of October 1, 1996. This agreement designates the bodies that to
departmental and decentralized level, will act as a control body; each professional can
register in a single department and pass a procedural training course for experts.

12. RESPONSIBILITIES OF THE CHARTERED ACCOUNTANT

12.1. Criminal liability

Criminally, the expert is responsible when willingly: falsely affirms or denies facts,
circumstances or qualities; hides facts or circumstances that would modify its conclusions; claims to have
made verifications without this being true; asserts a conclusion without having certainty of it; gives a
concept contrary to reality for economic or personal interest.
An expert can also be criminally punished for falsely alleging their ability to perform the function, or that
violates professional secrecy, or when it harms the investigation. Such acts constitute crimes at all times.
that are classified and have greater severity when committed within the framework of a criminal process.
Regarding the false report, the Penal Code establishes that it will be punished with imprisonment from 1 month to 4.
years, the expert who affirms a falsehood or denies or remains silent about the truth, in whole or in part, in their report,
made before the competent authority. In addition, the expert will be imposed absolute disqualification for double
time of the sentence (art. 275, CP).
Aggravating factors. If the false report is committed in a criminal case, the penalty will be from one to ten years of
confinement or imprisonment. Likewise, the penalty for the false expert witness, whose statement was given through bribery,
It will be aggravated with a fine equal to double the amount offered or received (art. 275 and 276, CP).
Professional secrecy. The Penal Code establishes that it will be punishable by a fine and special disqualification, in
in their case, for six months to three years, the one who, having knowledge, by reason of their profession, of a secret whose
disclosure may cause harm, I will reveal it without just cause (art. 156, CP).

12.2. Civil Liability

 The professional is liable for the damages and losses caused by their poor performance, due to
negligence or fault. The obligation to repair the damage and/or loss is legislated in theart. 1109del
Civil Code, whether by action or omission.
The expert is civilly liable for the damages and losses that he or she causes intentionally or negligently to the
parts in performance of the position, in addition to any fines imposed on them. In all cases, it is necessary to
establish the general elements of civil liability: fault or intent, harm, and the relationship of
causality between that fact and this damage.
Civil liability can be contractual (if designated by one of the parties and regarding)
of this one) or extracontractual (if appointed by the judge or regarding the party different from the one who appointed him).

According to the Procedural Code, if the judge removes the expert for resigning without a valid reason, or for refusing
to give their ruling or for not presenting it in a timely manner, after having accepted the position: ex officio
will appoint another in his place and will condemn him to pay the costs of the frustrated proceedings and the damages and
damages caused to the parties, if they claim it (art. 468, CPCCPBA).
Civil liability rules may apply in the following cases: destruction of property
or documents, deterioration of goods, violation of professional secrecy, delay in conducting the investigation or in
to present the report and issue a false report. The blame includes unjustified delay and error
inexcusable.
In the cited cases, the expert may be required to compensate for the damages caused.
beyond the disciplinary sanctions that the law provides. Therefore, if the expert does not have the technical knowledge
If the required experience is not available, one must refrain from accepting the position.

12.3. Administrative responsibility

This arises from rules set forth in the procedural codes and in the regulations of order
administrative decisions issued by jurisdictional bodies. The expert, as an assistant to justice, must
perform their duties faithfully; with loyalty, diligence, capability, and good faith. In case they commit a
procedural misconduct, will have to answer before the judicial authority for it.
It is essential that the expert is familiar with the procedural rules of the field in which they will perform their duties,
since the error of law is not excusable.
All corrective measures taken by the organizations are included within the administrative responsibility.
jurisdictional can impose on the experts in the exercise of their disciplinary powers; such as: removal
from the position, fine, warning, reduction of fees and exclusion from the lists for appointments of
office.
These are determined beyond the criminal, civil, or professional penalties that the bodies
they may apply to the judicial assistants or not. Likewise, it is not necessary for them to be
requested by the parties; the judicial body can apply them ex officio.
1. Removal. The expert will be removed if after having accepted the position: 1) resigns without reason.
attendable; 2) refuse to give his opinion or not present it timely. The judge ex officio: will appoint
another in its place (art. 468, CPCCPBA). This sanction involves the revocation of the position and the removal
of the expert in the process.

2. Loss of accrued fees. The expert who has been replaced due to removal will lose the right
to charge fees (art. 468, CPCCPBA). This financial sanction is accessory to that of removal and is
regardless of the right that the parties have to demand compensation for damages and losses.
3. Exclusion from the list. The Judicial Oversight Bodies may order the exclusion of an expert from
the respective list, for the following reasons:
a) Failing to appear to accept the position within three days of notification, without a duly justified reason.
justified (art. 467, CPCCPBA).
b) Resign without valid reason (art. 468, CPCCPBA).
c) Refusing to give an opinion or failing to present it on time (art. 468, CPCCPBA).
 d) Not attending the hearing or failing to present, when requested, an additional report or
complementary within the set deadline.
e) Refusing to give explanations.
f) Any other circumstance that, by reasoned resolution, gives rise to the exclusion of the expert.

12.4. Disciplinary Responsibility before the Professional Council

Regarding professional responsibility, it is necessary to highlight theLaw 466from the Autonomous City of
Buenos Aires and the Code of Ethics.
Ethical responsibility is linked to the behaviors and principles established by the Code of Ethics.
current professional.
This is applicable when the profession of the expert is regulated and the body in charge
to control registration has the authority to: 1) judge the conduct of professionals through
Ethics Tribunals, and 2) sanction them in case of professional misconduct, in accordance with the established provisions
codes of ethics respective.
The codes of ethics provide general and special norms on: technical principles, clientele, advertising,
professional secrecy, fees, and solidarity. However, these codes contain declarative standards;
By their very nature, they do not signify the denial of others.
In the event that an expert is sanctioned by a judicial body, such must be communicated.
circumstance to the entity that exercises disciplinary power over the profession of the expert. If their conduct
constitutes a breach of professional ethics, he will be subject to the following sanctions: warning,
reprimand, public censure, suspension from professional practice or cancellation of registration (art. 46,
LEP).
CHAPTER V

Expert testimony in criminal jurisdiction

Héctor Chyrikins - Oscar Fernández

1. GLOSSARY OF TERMS

1.1. Legal expressions

Next, we will see usual definitions of some commonly used terms, referred to the
the role of the Public Accountant in professional activities related to the process of cases that are
They are developed within the criminal jurisdiction. Those that will be examined in detail throughout the chapter are omitted.

Actions: Documents or proceedings of a judicial process that are part of a file or case.
Penalties: Monetary sanctions against the debtor or official who delays compliance with
a court order.
Criminal case: Criminal proceedings.

Notification Certificate: Written document used to communicate the updates of the process to each of the
parts.
 Citation: Act that consists of the communication to a person involved in the judicial process,
must appear at a hearing ordered in the case.
Competence: It consists of the legal authority that the law grants to each court or tribunal based on
the amount, the territory, the degree or the subject related to the case.
Sentence: Judicial resolution by which a criminal case is concluded.
Expert questionnaire: Set of topics defined by the magistrate on which it must be conducted
the accounting appraisal.
Fault: Negligence in due diligence to foresee and prevent harm.
Damage: It is the loss, harm, or detriment caused to a property or person.
Investigative statement: Interrogation that takes place when there is sufficient reason to
to suspect that a person has participated in the commission of a crime.
Informative statement: Interrogation that the judge conducts with individuals who may have knowledge
related to the cause and of interest for the knowledge of the facts.
Testimonial statement: Interrogation that witnesses must provide.
Set of crimes based on the attack on someone else's property based on fraud.
Crime: A typical, unlawful, and culpable act that is attributable to a person and is subject to punishment.
penal.
Dolo: Deliberate and malicious intention to deceive someone or to fail to fulfill a contracted obligation.
Business day: All days that are not holidays or public holidays. Days that are enabled for the
carrying out judicial procedures.
Expert opinion: Expert's response to each of the questions included in the questionnaire.
expert report. Technical report produced by qualified personnel or an individual, based on the elements of judgment
evidence in the case and with a partial use of the scientific method.
Actions for better provision: Evidence agreed upon by the court before issuing a judgment, in order
to gather additional elements or to clarify doubts.
Tax evasion: The action of submitting fraudulent declarations, making malicious concealments or
any other trick or deception, whether by action or omission, to evade total or partial payment of
taxes to the treasury.
Examination: Careful and attentive observation of an element that is done to know its characteristics.
or qualities, or to determine its condition during the appraisal.
Exhortation: Request from one judge to another of a different jurisdiction to order the execution of
Judicial proceedings corresponding to a case of the first.
File: A file that contains the judicial proceedings of a case and is divided into parts.
200 sheets each.
Ruling: Verdict, sentence.
Certain date: Date of a document that can be verified by having involved a public official
public, a notary or by the death of the signer, depending on the cases.
Fraud: Deception carried out with the purpose of gaining an advantage at the expense of another.
Jurisdiction: A branch of the judicial power that deals with specific issues due to the nature of the
same. In our case, the criminal jurisdiction.
General aspects of the law: Questions asked to the witness before starting the interrogation, regarding their
relationship of friendship or dependency with the parties, in order to be able to judge their partiality.

Fact: From a legal point of view, an event that has significance in the field of Law.
and that is likely to produce any acquisition, modification, transfer, or extinction of rights,
obligations or other consequences, for example, criminal.
Accused: Person to whom a fact, classified as a crime, is attributed in a criminal case.
 Incident: A matter that differs from the main subject of a trial but is related to it. Litigation
accessory to the main judicial procedure, which the judge or the court must resolve through a process of
separate.
Expert report: A document where the expert provides answers to the expert questionnaire.
Instance: Stage of the judicial process.
Instruction: Stage during which research is conducted regarding the nature of events, and
those responsible, in the development of a criminal case.
Criminal trial: Judicial proceeding in which facts related to crimes provided for in the
Penal Code.
Jurisdiction: It is usually understood as the geographical area where a authority has the power to act.
tribunal.
Judicial order: Communication issued by the Court for the performance of a certain procedure,
embargo, prison, eviction.
Notification: Act of communication of a resolution by a court or tribunal.
Judicial office: Written communication in which a judge or court addresses authorities or officials.
of another order, and requires certain data or reports.
Damage. Detriment.
Provided: Judicial disposition or ruling.
Provincial: Resolution (document) from the Judge, which contains an unreasoned statement.
Processed: Person accused of a crime based on a series of evidence contained in the document
which is called Order of Processing.
Proof: Demonstration or justification of the actual existence of the alleged facts.
Complaint: A report submitted to a criminal court, notifying it of this.
a crime and requesting the investigation of the facts deemed appropriate, as well as being an active part.
during the procedure.
Sentence: Judicial decision that ends the trial at a stage of the process.
Dismissal: Decision by the judge determining that there are no current or definitive reasons,
to file a criminal case against a person.
Witness: Person who is knowledgeable about the fact that is being discussed in court, by virtue of having fallen
same under the perception of their senses.

1.2. Latin voices commonly used

For the purpose of having it in view. It is used to request a file or certain.
documents with the purpose of being taken into consideration in the judicial process.
In doubt, for the accused: If there are doubts, it should be in favor of the accused.
Ipso facto: By the very fact. That is to say, that a judicial declaration is not necessary for it.
please confirm.
Ipso jure: By the same right. That does not require a judicial declaration, as it is provided.
in the law itself.
•Iter Criminis: Differentiation of the stages of the process, or sequence of events, that
they occur from the moment the individual intends to commit a crime, until
it effectively executes it.
Lato sensu: In a broad sense. Contrary to the consideration of texts in a literal manner.
Of Law and by Law: Of full and absolute right. Presumptions that do not admit contrary evidence.
Juris tantum: Presumptions that allow evidence to the contrary.
 Litis contestatio: The claim has been contested.
Sine die: Without a determined date.
Without right.

1.3. Abbreviations, common acronyms in the Republic of Argentina

AFIP: Federal Administration of Public Revenues
BCRA: Central Bank of the Argentine Republic
CSJN: Supreme Court of Justice of the Nation
CPP: Criminal Procedure Code.Law 23,984and its modifications as of 31/12/2012
Technical Resolutions of the Argentine Federation of Professional Councils in Sciences
Economic
UIF: Financial Intelligence Unit

2. RESPONSIBILITY OF ACCOUNTING EXPERTS ACTING IN THE CRIMINAL COURT

2.1. General aspects

While much has been said about the concept of responsibility, we understand that it is necessary
First of all, we want to clarify that when we refer to 'responsibility', we do so in two senses.
complementary.
On one hand, responsibility understood as the vocation to carry out activities, in this case
professionals, adhering to ethical principles, personal values, freedom of personal discernment,
technical capacity and, in general, all those conditions and circumstances that allow the task
it is expected to be developed in the way that society and stakeholders expect from the public accountant
as a university graduate professional, and with regulations governing their responsibilities and actions.
On the other hand, responsibility can be addressed from the set of sanctions that arise from
non-compliance with established rules for the proper performance of the accounting profession. When we
we refer to taking on responsibilities, we are referring to taking charge of the
consequences that arise from not having adequately considered the first of the concepts of
described responsibilities.
It could be said that there is a face of responsibility that manifests itself before undertaking.
the professional work, which is personal and intimate in nature, and which must be evaluated by the Public Accountant when
to address a work commitment, while a second side becomes evident from
public, professional, civil, or criminal regulations that appear once the activity of the
professional and whose evaluation is not carried out by him but by third parties, whether they are organizations
professionals or courtrooms.
If we refer to the topic in accounting terms, we can relate it to the concept of contingencies, where
not adequately taking into account the situation and context regarding the first of the senses of the
responsibility statements, leads to the growth of the possibilities of concluding in problems of
responsibility in the second of the senses.
Such circumstance cannot be expressed in reverse, since professional, civil or
Penal may still arise even when all precautions regarding the conditions are observed.
personal and professional experiences in which the questioned work has developed. However, in this case,
surely the chances of such an event occurring are significantly lower, and the ability of
professional to test in your favor, much greater.
 We can also refer to two ways of appreciating the concept of responsibility. On one hand, the
apparent responsibility. It refers to what third parties can objectively perceive as conditions.
of responsibility of the accounting professional, related to their aptitude. In this aspect, the qualification
professional, the experience in the relevant topics, the conditions under which he is selected for the job,
and the background of previous activities adds reliability to the work of the forensic accountant and generates in
the recipients the possibility of judging their alleged responsibility.
On the other hand, the 'real responsibility'. This lies within the professional themselves and corresponds to
the attitude with which he himself carries out the assigned work. This type of responsibility can only be
to appreciate once the work is completed, and sometimes, a long time afterwards. It will depend on the effects,
positive or adverse, that the work product of the accounting expert generates in the case. Only in the
the moment it is detected that an accounting report has been poorly prepared, either due to being incomplete,
erroneous or any other circumstance, we will be in a position to state that a breach has occurred.
real responsibility.
It can be appreciated that it is not a simple ethical issue, but that responsibility is a concept
much more encompassing, even when ethics is at the center of its genesis.
From the work of the Public Accountant in general, and in the judicial field in particular, it is expected that through
From your intervention, the truth can be known. It is not the purpose of this work to develop the multiple
discussions about the existence of truth, its nuances, its possible relativity, its
conditioning, of the evolution of philosophical thought in that sense, we only refer to one truth
in terms of professional opinion. Gustavo Montanini says in his work(1)Ethics is always
related to the truth, which is precisely the meaning of professions.

2.2. Standards related to professional practice

The performance of the Public Accountant, with regard to their professional responsibility, seen from the two
Statements of senses can be summarized in three regulations.
The first of them is thelaw 20.488which regulates the professional practice of the Sciences professions
Economic and defines, through its article 13, the limit of the professional actions of the Public Accountant.
Secondly, the Code of Ethics applicable to the jurisdiction where you carry out your work
professional. In our case, we will refer to that of the Professional Council of Economic Sciences of the
Autonomous City of Buenos Aires.
Finally, we must consider the Procedural Regulations for the purposes of application of the
disciplinary sanctions arising from the violation of the Code of Ethics.

2.3. Law 20.488, regulations concerning the practice of professions related to sciences
economic
Article 13:
ARTICLE 13 - A Bachelor's degree in Public Accounting or equivalent will be required:

a) In economic and accounting matters when the opinions serve judicial, administrative purposes or are
intended to make public faith regarding the following issues: (not detailed in this work because they
refers to professional actions outside of the justice system.
b) In judicial matters for the production and signing of reports related to the following issues:
1.-In the competitions of law 19.551 for the functions of the syndic.
2.-In the settlements of damages and losses and in matters related to transport in general for
make the corresponding calculations and distribution.
3.-For the statements in the dissolutions, liquidations, and all asset-related matters of companies
civilians and commercial and the accountability reports of asset management.
4.- In the examinations or expert assessments of books, documents, and other elements related to the elucidation of
accounting issues and those related to commerce in general, their practices, uses, and customs.
 5.-For opinions and accounting reports in administrations and judicial interventions.
6.-In succession trials to prepare and sign the partition accounts together with the lawyer who
intervene.
7.- As an expert in your field in all jurisdictions. In the issuance of opinions, the rules must be applied
audits approved by professional bodies when appropriate.

2.4. Code of Ethics of the Professional Council of Economic Sciences of the Autonomous City of
Buenos Aires
The Code of Ethics in the case of the Professional Council of Economic Sciences of the Autonomous City
from Buenos Aires was sanctioned by Resolution 355/80 and modified by Resolutions C 201/95,
CD 137/08 and CD 67/09.
We detail below the articles that, in our opinion, are most related to
the function of the expert accountant, since other manifestations refer exclusively to behaviors in the
scope of professional development in other areas of action.
Article 2 - Professionals must respect the legal provisions and the resolutions of the Council, complying with them.
loyally.
Article 3 - Professionals must always act with integrity, truthfulness, independence of judgment, and objectivity.
They have the obligation to maintain their professional competence throughout their career.
Article 4—Professionals must attend to the matters entrusted to them with diligence, competence and
genuine concern for the legitimate interests, whether of the entities or individuals who entrust them, or of
third parties in general. It constitutes an ethical breach to accept or accumulate positions, functions, tasks, or matters that they
materially impossible to attend to.
In acting as an assistant to Justice, causing delays in the administration of justice is considered an ethical offense.
except in duly justified circumstances before the respective tribunal.
Art. 5° —Any opinion, certification, report, decision, and in general any document issued by the
professionals must express themselves clearly, precisely, objectively, completely, and in accordance with established norms
by the Council.
The responsibility for the documents signed by professionals is personal and non-delegable.
In matters that require the involvement of collaborators, personal intervention and supervision must be ensured.
of the professionals, through the application of appropriate rules and technical procedures for each case.
Art. 8°—Professionals must refrain from advising or intervening when their professional actions allow,
To compare or facilitate the wrongful acts that could be used to confuse or surprise the good faith of third parties, or
to act against the general interest or the interests of the profession, or to violate the law.
The use of the technique to distort or hide reality is an aggravating factor of ethical lack.
Article 9 - Professionals must not interrupt their professional services without notifying those concerned.
with reasonable notice, unless special circumstances justify it.
Art. 23 —When professionals in the exercise of public or private activities have intervened
deciding or informing about a certain matter, they must not offer their services to the other party until they have
Two years after the end of their performance, unless there is notification and the interested party does not express
opposition within a period of 30 calendar days.

Article 25—Professionals must refrain from issuing opinions or certifications that are intended to
third parties or to make public faith in the following cases:

a) When they are owners, partners, directors, or administrators of the company or of the entity or entities
economically linked on which the work is based.
b) When they have a relationship of dependency with the entity or regarding people, entities, or groups of entities
economically linked.
c) When the spouse, relatives by blood in a straight line, collateral relatives up to the fourth degree,
inclusive, and those related within the second degree are included among the persons mentioned in the inc.
of this article.
 d) When they have common economic interests with the client or are shareholders, debtors, creditors or
guarantors of it or economically related entities, for significant amounts in relation to
client's assets or their own.
e) When their remuneration is contingent on or dependent upon the conclusions or results of the task.
f) When your remuneration is agreed based on the client's operational results.
In the cases of professional partnerships, the restrictions will be extended to all partners.
professional.
The Code of Professional Ethics governs all accountants who act as experts in the criminal jurisdiction.
regardless of whether they do it as official accounting experts, party experts, or in any other way
of professional performance.

2.5. Law 466, chapter V. On disciplinary power

Article 27.- The following will be subject to disciplinary sanction:

a) The acts or omissions committed by the registered graduates in the registry, which constitute a violation of the
inherent duties of the state or professional practice in accordance with the provisions of the Code of Ethics.
b) The removal from the position held in any of the agencies mentioned in article 4 of this law.
Article 28.- The disciplinary sanctions, which will be graded according to the severity of the offense and the background of the
the following will be the accused:
a) Warning.
b) Private warning.
c) Public reprimand.
Suspension of the profession for ONE (1) month to ONE (1) year.
e) Cancellation of enrollment.
Article 29.- Without prejudice to the disciplinary measure, the registered member may be additionally disqualified from forming
part of the organs of the Professional Council for up to:
Three (3) years after the suspension is fulfilled, in the case of registered individuals affected by the
sanction established by paragraph d) of article 28.
b) Five (5) years from re-enrollment in the register, in the case of registered individuals subjected to the sanction.
what establishes inc. e) of article 28.
Art. 30.-The Professional Ethics Tribunal will act:
a) By written and justified complaint;
b) By motivated resolution of the Governing Council;
c) By communication from judicial magistrates;
d) On its own initiative, providing reasons for it.

2.6. Criminal liability of the public accountant

Criminal Law has its conception in the definition of behaviors that the State considers harmful.
for society as a whole or for some part of it, and on which the State must take action
it has a guardian function.
A fundamental principle of Criminal Law is that of 'legality'. In our legal system, there is no
There is no crime without a prior law. The law must foresee the elements of the crime it aims to prevent and prosecute.
or to sanction.
The elements of the crime can be observed as follows:
 1. Conduct (actions and omissions). That is to say, activities that an individual carries out when he/she is not
appropriate, or one that stops doing when deemed necessary.
2. Typicality. The activity carried out is perfectly defined in the criminal norms.
positive.
3. Illegality. Such activity is considered contrary to the objectives, needs, and values of the
society.
4. Guilt. Whoever carries out, or fails to carry out the activity, does so intentionally. They know what they are doing.
doing and is aware of it.
5. Punishment. The consequence of the previous four points results in a sanction for the one who has
carried out the action, depending on the character in which it was performed.
Regarding the iter criminis or the stage of development of a crime at a specific date.
the situations can be found:
1) Prior to the commencement of the criminal act: these are the preparatory acts for the commission of a crime, and by
So much develops without the need for the actions classified as criminal to have been executed.
a) Proposition: this case arises when the person who has decided to commit a crime invites
another to participate in it.
b) Conspiracy: in this case we are faced with a situation where two or more people come together
in agreement to commit a crime.
2) During the commission of the crime
a) Attempt: when the crime starts to be executed, but the agent does not carry out all the acts.
necessary to set up a hypothesis of consummation or frustration.
b) Frustration: when the crime has begun to be executed and is not completed due to facts that are
strangers to the will of those carrying out the unlawful act.
c) Commission: when the crime has been committed and its effects have occurred, whether desired or not by the
agent. The completion can be partial or total if all or some of the objectives have been achieved.
criminal.
In the case of accounting experts who operate within the criminal jurisdiction, the main crime for which
they can be charged is included in articles 275 and 276 of the Penal Code, which is part of the Chapter
XII 'False testimony', within Title XI, 'Crimes against Public Administration', which states;
ARTICLE 275.- A witness, expert, or interpreter shall be punished with imprisonment from one month to four years,
to assert a falsehood or to deny or to silence the truth, in whole or in part, in his deposition, report, translation
or interpretation, made before the competent authority.
If false testimony is committed in a criminal case, to the detriment of the accused, the penalty shall be one
to ten years of imprisonment or confinement.

In all cases, the offender will also be subject to absolute disqualification for double the duration of the
sentence.
ARTICLE 276.- The penalty for a false witness, expert, or interpreter, whose statement was provided by means of
Bribery will be aggravated by a fine equal to double the amount offered or received.
The briber will suffer the penalty of a mere false witness.
The Penal Code distinguishes between general false testimony or that which is given against a person.
accused in a criminal case. In this second case, the penalty is substantially higher.
It also discriminates against the mere fact of the general false testimony that is made as a consequence.
for bribery. In the second case, a fine is added.
In addition to the penalty itself and the fine when applicable, a third sanction is added,
which consists of absolute disqualification for double the duration of the sentence.
The accounting experts can be charged with this crime due to the content of their reports or to the
statements made when summoned by the judges or oral courts.
 It must be understood that the crime is a result of having included in your written declaration or
oral elements that tend to deceive the judicial authorities who must decide in the case, whether it is
asserting a falsehood while silencing the truth, and whether this is done in whole or in part
part.
In this case, at least three events of different nature must be distinguished:
a) the existence of falsehoods in the answers given,
b) the inclusion of data that may be confusing, and
c) the incorporation of opinions arising from the technical expertise of the expert.
Regarding item a), the fact is more clearly configured, as it can be observed that
presence of the reported falsehood. For example, this happens when in an expert report the expert states
that has verified certain accounting records and it is confirmed that such records never existed. Or
when it states that something is recorded in a book and from its viewing it is evident
Such registration is not present. They also constitute actions that lead to the accusation of falsehood.
testimony, among others, those in which the expert responds evasively, when they do not provide an answer to the
totality of the requested points or respond to one or all of them without considering all the elements
available.
Regarding item b) the existence of confusing data may be due to related issues.
with the writing style, if the report is written, or the way of oral expression if that is the case for the presentation.
The use of technical terms that are difficult for laypeople to understand, the chaining of several topics
complex, the organization of the presented elements and other similar causes can be examples in
this sense. Such facts do not constitute an obvious false testimony, but this will only happen if
It is verified that the action was carried out with the purpose of hiding or misleading about some information.
substantial, or with the purpose of creating a climate of confusion that prevents determining the facts that are
They investigate. In this case, it can be quite complex to establish the boundary between the technical mazes.
that manifest in professional processes, and the deliberate actions taken with the purpose of
produce a deception.
Ultimately, we refer to item c). In such situations, it is also very difficult to
to prove the existence of false testimony by the Expert Accountant. When it comes to opinions
professionals, they can be discussed and even not shared, but that does not mean they are not
true nor do they intend to present a misleading situation, much less that such action takes place
deliberately. Many topics are the subject of controversies and undefined doctrinal positions, and on the other
each professional possesses different knowledge and experiences, so they can appreciate the facts
with non-congruent professional views. Unless it can be proven that the opinion was expressed in a way
deliberately misleading, without support or substance to back it up, it should not be regarded as
false. For example, when it is requested to establish whether an invoice turns out to be counterfeit. There are multiple
circumstances that allow for the appreciation of the conditions of a receipt, and to be present only
some of them may be sufficient for a regulatory body or a professional to establish that
It is apocryphal, while for others elements that are not present on the occasion are required. It is very
likely that both arrive at their opinion based on a reasonable study of the facts, and, without
embargo, they will present different results without any of them being considered false.
A second charge is presented against the Accounting Experts. It is as a result of the
obligation arising from Article 266 of the CPP which establishes the obligation to keep confidentiality about everything
Get to know with regard to your performance. Here we are talking about the concept of professional secrecy, which also
foreseen in the previously analyzed professional ethical behavior standards.
The aforementioned article 266 states that the judge may correct negligence with disciplinary measures,
misconduct or poor performance of the experts, and even replace them, without prejudice to criminal responsibilities
that may correspond to them. Among such responsibilities, there can be precisely those derived from
of false testimony.

3. ORGANIZATION OF CRIMINAL JUSTICE. PUBLIC PROSECUTOR'S OFFICE

3.1. National Criminal Justice
The general organization of the Judicial Power in the Republic of Argentina has already been seen in previous chapters.
We will briefly recall here the composition of the part of said Power that is focused on.
to the resolution of criminal matters.
According to the statement of theArticle 2from theLaw 24.050modified by thearticle 4of theLaw 26.371the
the integration of the National Judiciary in criminal matters is as follows:
1. The highest organ of Justice is the Supreme Court of Justice of the Nation.
In criminal matters, we then find the Federal Chamber of Criminal Cassation.
3. The National Chamber of Cassation in Criminal and Correctional Matters of the Federal Capital.
4. The Oral Courts, in Criminal matters, in Economic Criminal matters, in Federal Criminal matters of the Capital
Federal and Federal officials acting in the provinces.
5. The National Courts of Appeals in Criminal and Correctional Matters, in Economic Criminal Matters, in
Federal Criminal and Correctional Court of the Federal Capital and those located in the Provinces.
6. The National Courts in Criminal Instruction, Correctional, in Economic Criminal Law, in the
Tax Criminal Law, in the Criminal and Correctional Federal Courts of the Federal Capital and Federal Courts with
headquarters in the provinces.

7. The National Court of Criminal Enforcement.

8. The National Court in Criminal Rogatory Matters.
At the same time, Article 32 of theLaw 26.371establishes the composition of the National Courts of the Capital
Federal, as follows:
Article 32: The national courts of the Federal Capital will be composed of:
Federal Criminal Cassation Court.
2. National Chamber of Cassation in Criminal and Correctional Matters of the Federal Capital.

3. National Courts of Appeals of the Federal Capital:

a) In Federal Civil and Commercial matters;

b) In the Federal Administrative Litigation;

c) In Federal Criminal and Correctional Matters;
d) In Civil Matters;

e) In Commercial Matters;

f) Of the Work;
g) In Criminal and Correctional Matters;

h) Federal Social Security;

Electoral;
j) In Economic Criminal Law.
4. Oral Courts:
a) In Criminal Matters;

b) In Economic Criminal Law;

c) Of Minors;
d) In Federal Criminal matters.

5. National First Instance Judges:

a) In Federal Civil and Commercial;
b) In Federal Administrative Litigation;
c) In Federal Criminal and Correctional matters;
d) In Civil matters;
 e) In Commercial Matters;

f) In Criminal Instruction;
g) In the Correctional;
h) Of Minors;
i) In Economic Criminal Law;
j) Of the Work;
k) Of Criminal Execution;
In the Criminal Rogatory;
Federal Courts of First Instance of Social Security;
n) Federal Courts of First Instance for Tax Enforcement.
o) In Tax Criminal Law.
The territory of the country is divided into 17 federal jurisdictions, which intervene in the affairs
about federal matters that occur within the scope of their jurisdiction.
Federal Court of Bahía Blanca

With jurisdiction over the south of the Province of Buenos Aires and the entirety of the Province of La
Pampas
Federal Court of the Federal Capital, divided into:

National Justice in Economic Criminal Matters

National Justice in Tax Criminal Matters
National Criminal and Correctional Justice
With jurisdiction over the Autonomous City of Buenos Aires and the national territories
Federal Court of Comodoro Rivadavia

with jurisdiction over all the provinces of Chubut, Santa Cruz, and Tierra del Fuego
Federal Court of Corrientes

with jurisdiction over the entire province of Corrientes

Federal Court of Córdoba

with jurisdiction over all the provinces of Córdoba and La Rioja

Federal Court of General Roca

It has jurisdiction over all the provinces of Río Negro and Neuquén.
Federal Court of La Plata

with jurisdiction over the central-eastern part of the province of Buenos Aires and the southern area of Greater Buenos Aires
Aires
Federal Court of Mar del Plata

with jurisdiction over the center of the province of Buenos Aires

Federal Court of Mendoza

with jurisdiction over the entire provinces of Mendoza, San Juan, and San Luis
Federal Court of Paraná

with jurisdiction over the coast of the Paraná River and the Province of Entre Ríos.
Federal Court of Resistencia

with jurisdiction over all the provinces of Chaco and Formosa

Federal Court of Posadas - Misiones
 with jurisdiction over the entire province of Misiones
Federal Court of Salta

with jurisdiction over the entire provinces of Salta and Jujuy

Federal Court of Santa Fe

with jurisdiction over the entire province of Santa Fe and the northern area of the province of Buenos Aires
Aires
Federal Court of San Martín
With jurisdiction over the northern and western areas of Greater Buenos Aires
Federal Court of Tucumán

with jurisdiction over the entirety of the provinces of Tucumán, Catamarca, and Santiago del Estero
The following graph presents the composition of the Criminal Code as a whole:
Supreme Court of Justice of the Nation
Federal Court National Chamber of Cassation in Criminal and Correctional Matters
of Criminal Cassation (1) from the Federal Capital (2)

Federal Oral Courts based in the Federal Capital Oral Courts in Criminal Matters
National Chamber of Appeals in Criminal Matters
Federal Oral Courts based in the provinces
Correctional
National Court of Appeals in Criminal and Correctional Matters of
National Correctional Courts
the Federal Capital
Oral Courts in Economic Criminal Matters National Courts of Criminal Execution
National Appeals Chambers in Criminal and Correctional Matters
with seats in the provinces
National Chamber of Appeals in Economic Criminal Matters
National Criminal and Correctional Courts of the Capital
Federal
Federal Courts of First Instance based in the provinces

(1) This refers to the former National Chamber of Criminal Cassation, whose name was modified by theLaw 26.371.
This Chamber was created by thelaw 26.371 to absorb part of the functions of the National Chamber of
Criminal Cassation, but so far it is not enabled. Therefore, the only Court that is
The Federal Criminal Cassation Court is currently in force, which resolves all matters of the criminal jurisdiction.

3.2. National Public Ministry

In addition to the organizations dependent on the Judiciary of the Nation, it is necessary to mention here
of one of the main actors in the criminal judicial process. We are referring to the Public Prosecutor's Office.
Although it has existed since the constitution of the Nation, its current structure dates from the last reform to
the National Constitution carried out in the year 1994. From that moment on, it appears as an organism
independent and with functional autonomy and financial self-sufficiency alongside the Executive and Legislative Powers
and Judicial.
The constitutional clause, in turn, was regulated by the Congress of the Nation through the enactment
of the Organic Law of the Public Ministry numbered 24,946.
According to Article 120 of the National Constitution, it is the responsibility of the Public Ministry to promote the
the performance of justice in defense of legality and the general interests of society. Since the
from an organic point of view, it has a bicéphalic structure: it is composed of the Public Prosecutor's Office and the
Public Defender's Office.
Public Ministry
Public Prosecutor's Office
Fiscal
 Public Ministry
of Defense

The Public Prosecutor's Office is composed of the Attorney General of the Nation, who is its authority.
maximum y for the fiscal
—national and federal—established by law. Without prejudice to certain functions of legality control.
what prosecutors do in civil, commercial, labor, social security, and contentious-administrative matters, their
the primary activity takes place in the criminal process. Basically, its procedural participation consists of
act as the requesting body throughout the investigation and as the prosecuting body during the oral trial.
Despite the fact that the rule in federal and national law is that the investigation of crimes is a heritage
exclusive del judge of instruction
—except in cases of discretionary judicial delegation—the gradual evolution towards the accusatory system
has determined the inclusion of the following assumptions, in which such research is granted to the
prosecutors: flagrancy without preventive detention(law 24.826)unknown author crimes (law 25.409) and kidnappings
extortionist (law 25.760). Both the National Judiciary and the National Public Prosecutor's Office
they intervene in the investigation and prosecution of federal jurisdiction offenses (for example, trafficking of
narcotics, smuggling, etc.). In the face of common crimes, they only have jurisdiction if they were committed in
the area of the Federal Capital of the Republic.
Organic Law 24.946 specifies the institutional design that the National Constitution assigns to the Ministry.
Public. Regarding the Public Prosecutor's Office, the regulatory law:
1. Establishes the principles of objectivity, hierarchy, unity, and coherence of action.
• 2. Establish the number of prosecutors who will act, respectively, under the dependency of
Attorney General of the Nation.
• 3. Regulates the functions of each of the magistrates, as well as other aspects related to the
organization and functioning.
The Public Prosecutor's Office is made up of prosecutors who act, each of them, before different
judicial bodies. Thus, there are prosecutors before the National Chamber of Criminal Cassation, before the
Appeals Courts of each jurisdiction, before the Oral Courts and before the various Courts.
Likewise, and with the purpose of specializing the monitoring of certain matters of procedural interest, it
they have created special prosecutor's offices such as the one for Investigations of Tax Crimes and Smuggling, the one for
crimes committed in the field of Social Security, those committed in the field of PAMI, those of
Investigations of Money Laundering and Terrorism Financing, among others.
The Public Ministry of Defense is responsible for the representation and defense of the poor and absent.
Provides public defense and any type of legal assistance required, not only for the sectors
economically more vulnerable, but also for those who refuse to have a private lawyer, given
that the Federal Government must guarantee the right to defense in trial.
The agency is headed by a Public Defender.
The service is provided by public defenders, tutors, and public curators, who make up the
organization, at the national level, in the scope of the Federal Capital, and at the federal level, throughout the country.

Judicial Power of the City of Buenos Aires

Regarding the organization of the Judiciary of the Autonomous City of Buenos Aires, its organization
is defined in the Constitution of the City.
The head of said power is the Superior Court of Justice. It is made up of five
judges. It is responsible for the powers assigned by Article 113 of the Constitution of the City, which
are stated below:
 Originating and exclusively in the conflicts between the Powers of the City and in the demands that
promote the General Audit of the City according to what is authorized by this Constitution.
2. Originally and exclusively in declarative actions against the validity of laws, decrees, and any
another general rule issued by the authorities of the City, contrary to the Constitution
National or to this Constitution. The declaration of unconstitutionality renders the norm ineffective.
unless it is a law and the Legislature ratifies it within three months of the ruling
declarative by a two-thirds majority of the members present. The ratification of the Legislature
does not alter its effects in the specific case nor prevents subsequent diffuse control of constitutionality
exercised by all judges and by the Superior Court.
3. By means of resources of unconstitutionality, in all cases that deal with the interpretation or
application of rules contained in the National Constitution or in this Constitution.
4. In cases of deprivation, denial, or unjustified delay of justice and in complaints about
denial of resource.
5. In ordinary appeal instances in cases where the City is a party, when the amount
the claimed shall be greater than that established by law.

Originally in electoral matters and political parties. A law may create an electoral tribunal in
in which case the Superior Court will act by way of appeal.
The courts of the City are grouped into two jurisdictions. The Contentious, Administrative and Tax.
composed of 15 courts and an Appeals Chamber made up of two chambers, formed by 3 judges
each one of them. On the other hand, there is the Criminal, Contraventional, and Offenses jurisdiction, made up of
31 courts and an Appeals Chamber that has 3 rooms made up of 3 judges each.
Given the cases that are addressed in this jurisdiction, it is complemented by 16 prosecutors' offices and 12 public defenders' offices.

The Contentious, Administrative, and Tax Court acts in cases where the City is a party to the
case, whether as an actor or as a defendant, and in which issues related to the
local taxes.
The Criminal, Contraventional, and Misconduct jurisdiction acts in the rest of the local litigations. These may
be consequences of the definitions of the Penal Code, the Contraventional Code, of the laws that
regulate the offenses within the City and any other relevant legislation.
The Judiciary of the City is completed with the Public Prosecutor's Office, the Public Ministry of the
Defense and the Public Guardian's Office, the latter described in Article 124 of the Constitution of the City
as Advisory for Incapacitated persons.

4. CRIMINAL LAW

4.1. Main crimes with economic causes or consequences

The role of the Public Accountant as an expert in the criminal jurisdiction involves evaluating facts.
related to a set of topics, whose origin is found in the National Penal Code.
Indeed, the Second Book of said Code details the different crimes that are considered as
cause of criminal sanctions. Some of these offenses do not usually involve the need for having
forensic accounting tasks. This involves, in this case, crimes that involve, for example, simply
personal conduct. Such is the case with crimes against life, against honor or against integrity.
sexual.
However, many other crimes have their root in the existence of some form of maneuver with
economic content. It is in such opportunities when the presence of the Public Accountant becomes very
important most of the time.
These crimes are mainly those that the Penal Code enumerates in the following numerals:
TITLE VI CRIMES AGAINST PROPERTY
 Chapter IV "Frauds and Other Defalcations"
Chapter IV bis 'Usury'
Chapter V 'Bankrupts and other punishable debtors'
TITLE XI CRIMES AGAINST PUBLIC ADMINISTRATION
Chapter IV "Abuse of Authority and Violation of Public Officials' Duties"
Chapter VI "Bribery and influence peddling"
Chapter VII "Embezzlement of public funds"
Chapter VIII 'Incompatible Negotiations with the Exercise of Public Functions'
Chapter IX 'Illegal Exactions'
Chapter IX bis 'Illicit Enrichment of Officials and Employees'
TITLE XII CRIMES AGAINST PUBLIC FAITH
Chapter V 'On Frauds in Commerce and Industry'
Chapter VI "On the payment of checks without available funds"
TITLE XIII CRIMES AGAINST THE ECONOMIC AND FINANCIAL ORDER
In this case, the crime of Money Laundering and Terrorism Financing is included, incorporated into the Code.
Criminal through the reform implemented by theLaw 26.683.
The Titles and Chapters are generic descriptions intended to classify crimes, but within each
Enumeration allows us to find individual facts that respond to concrete situations. Thus, we
they present, for example, multiple forms of scams and frauds and various types of abuse of
authority and violation of the duties of public officials.
Without prejudice to the crimes arising from the Penal Code, there are others that appear as
consequence of the sanction of special laws. One of them, possibly the one with the greatest impact
It has within the set of causes that are addressed in criminal jurisdiction, the so-called Tax Criminal Law.
and from the Social Security (24,769). It contains the details of the crimes after several reforms.
occurrences as a result of the violation of tax criminal laws or related to the
contributions to social security.
Similarly, the Foreign Exchange Criminal Law (19,359) penalizes crimes related to transactions.
of foreign currency and its settlement in the local market.
The Customs Code,law 25.986,yLaw 22.415of Customs Offenses, regarding the recorded offenses
as a consequence of foreign trade operations.

4.2. Main public bodies related to economic criminal matters

Although many areas of the National State may be involved in the prosecution of crimes
provided for in the Penal Code, and especially in those that deal with economic matters,
Some organisms are of primary relevance due to the level of intervention they typically acquire.
One of them is the Federal Administration of Public Revenue. In this case, the regulatory body
fiscal actively participates in the cases where alleged crimes related to the
non-compliance with tax laws, subsidies, tax benefits, and misappropriation of resources of
social security.
In many cases, it is the AFIP itself that files the reports that give rise to the cases.
judicial. On some occasions, the tax authority also appears as a plaintiff in such cases,
in such a way as to give momentum to the judicial tasks concerning it. The AFIP also, when it deems it
necessary, it proposes party accounting experts to participate in the accounting expert tasks. To that effect,
has staff in a dependent relationship with the department that performs such tasks.
The Central Bank of the Argentine Republic acts in those cases where they are found
involved financial entities, and also when it comes to possible crimes related to the Law
Exchange Criminal. Its role as a control entity allows it to carry out investigations that
eventually lead to judicial complaints and cases being processed in the criminal court. Also, the Bank
Central can act as a complainant and propose its own expert accounting witnesses.
The Financial Information Unit, under the Ministry of Justice and Human Rights, is a
administrative body with authority over cases involving potential money laundering actions
money or financing of terrorism, within the framework of theLaw 24.246Concealment and Money Laundering of
Criminal Origin and of theLaw 26.268,Illicit Terrorist Associations and Terrorism Financing. Being
an entity with a significant legal capacity for centralizing information, as a result of its analysis, and
when it is considered viable, the corresponding criminal complaints should be filed. The UIF holds
also the ability to propose expert accountants when participating in the case.

5. THE CRIMINAL PROCESS

5.1. Characteristics and elements of the criminal process

5.1.1. General concepts

The criminal process comprises a sequence of events aimed at resolving, through
a trial by the competent authority, the controversy submitted to its decision.
Such acts are defined in the relevant law. They begin once a...
an act considered a priori criminal is carried out by collecting the relevant evidence and concludes when
The resolution of the corresponding magistrate is produced.
The existence of a possible crime, and the opening of a judicial case to investigate it, depends on the type
of the crime in question. In our legal system, there are three possibilities:
a) If the crime is a public action, the ownership of the action belongs to the Public Prosecutor's Office or to
plaintiff, that is, the individual who has been wronged by the crime.
b) If the crime is dependent on private instance, to initiate the action it is required that the victim urges the
process, through complaint or accusation. Once this step is completed, the case continues ex officio.
c) If the crime is one of private action, the action is subject to the decision of the complainant. If the complainant leaves
to promote the cause, or desist from it, the judge may proceed to archive the proceedings.

5.1.2. The criminal instruction

Within the instruction of a criminal process, we can basically find three parts that constitute
the same, and act throughout the entire development until its conclusion:
the Judge
the complainant and/or plaintiff
c) the defendant or accused
In addition to the main actors, they can be present and participate in the development of the case,
agreement with each situation:
a) Witnesses
b) Experts
c) Interpreters
 In addition to those who act or may act in the case, the figure of the
informants. These are all those whom the magistrate decides to consult because they may be able to provide
elements of utility for the knowledge or proof of the facts.
In the next chapter, we will see who participates when it comes to a trial.
A criminal proceeding is an investigation aimed at determining whether an event has occurred that constitutes a
crime, and in that case, who has been the author or authors.
Therefore, its development is based on the accumulation of evidence that allows the judge to arrive at a
rulings. Since the topics addressed in judicial cases are of diverse technical nature, and many
sometimes require special knowledge about the subjects involved, it becomes necessary throughout
from the instruction to have the assistance of specialists who analyze and report based on their respective
knowledge.

5.1.3. Evidence in the criminal process

The types of probative activities that can be carried out are provided for in Title III of
CPP, and they are as follows:
a) Judicial inspection and reconstruction of the event
Residential registration and personal search
c) Kidnapping
Witnesses
e) Experts
f) Interpreters
g) Acknowledgments
h) Careos
As can be appreciated, the expert evidence is one among a set of indications that must be
collected throughout the criminal process. Some types of evidence are directly related to the
Accounting expert reports, on the other hand, seem to have no contact whatsoever.
It could be said that judicial inspections and reconstructions of the event, identifications and the
They are unrelated to the accounting expert reports.
However, the home searches where elements related to the tasks can be found
expert reports, the seizure of documents and records, and the interpreters who translate documentation
issued in a foreign language, often provide the essential material to undertake the
forensic accounting work.
The case of witnesses can be included in the first group when it comes to simple statements,
and within the second when it corresponds to the contribution of useful documentation for the expert task.
Another way to appreciate the evidence can be carried out based on their nature, in this
in a sense, we could group them into tests:
a) Testimonial. They are obtained from the statements of witnesses.
b) Documentaries. Consisting of the records and the documentary elements obtained as
consequence of both voluntary contributions to the cause and seizures ordered by the magistrate.
c) Informative. Data obtained from requests for information from various individuals or organizations.
d) Expert reports. Composed of expert reports and statements made by the experts.
e) Confessions. Obtained as a result of the statements made by the accused.
It is important to recognize the different types of tests regarding the effects, among other things, to establish whether what
it is intended at a certain moment corresponds to an expert examination or not. For example, when the
The magistrate wants to know if a tax affidavit has been submitted instead of a piece of evidence.
The expert should resort to an informative, requesting relevant data from the AFIP.
 An incorrect determination of the characteristics of the test can lead to confusing the functions.
of witness, expert, and informant, each of which has its own regulations.

5.2. Criminal Procedure Code. Relevant section on experts. Description of the main topics of their
articulated
The work of Official Accounting Experts is carried out within the framework of various general regulations and
particular aspects. In particular, the Penal Procedural Code is noteworthy, as most of the cases have
origin in said jurisdiction.

Within the mentioned Code, the text of Chapter V, called "Experts," is displayed. It must be taken into account
Keep in mind that when referring to 'experts', the term includes not only accountants,
the theme of interest of this book, but also, among others, to doctors and calligraphers. This circumstance leads
to consider in some cases that the content of the rule does not seem fully applicable to the discipline
accountant.
On the other hand, the mentioned CPP establishes unique working conditions for all types of causes, without
distinguish them based on their particularities and complexities. Therefore, that imprint is to the
that the expert accountant must adapt. This, even when in fact, the causes have characteristics
significant differences, for various reasons, from the simplest to the more detailed with greater
precision in point 8.2 where the so-called megacauses are described.
We will now take a tour of the articles of the chapter in question of the CPP.

5.2.1. Authority to order the expert assessments

Article 253. - The judge may order expert assessments whenever it is necessary to know or appreciate any fact or circumstance.
pertaining to the case, whether special knowledge in any science, art or technique is necessary or convenient.
Notwithstanding that the term 'expert reports' does not seem to be the most appropriate, as already described in the
glossary, what can be appreciated is that it is not always necessary, on the part of the authority that has
in charge of the investigation, consult a specialist to interpret a fact related to the file
where it acts.
Only in those cases where the judge's knowledge of the subject involved in the case does not
is sufficient to understand the inherent circumstances. That is, when they are presented
situations that, for their analysis, require a specially trained person due to
demonstrable knowledge or experience.
As we will see later, when dealing with the conditions in which expert questionnaires are presented, there are
cases where this premise does not hold. Not all requests for expert tasks require having
with special skills and/or knowledge, and could be resolved without major difficulties by the person themselves.
magistrate.

5.2.2. Enabling quality

Art. 254. - Experts must have a title as such in the subject related to the point on which they are to
to be issued and to be registered in the lists formed by the competent judicial authority. If it is not regulated
profession, or if there are no certified or registered experts, a person with knowledge or experience must be appointed
recognized.
In this case, the need to appoint an expert with professional qualifications is reaffirmed.
for your exercise, or else have recognized experience in the field of practice.
Only a human person can be an expert witness. Notwithstanding this, and in accordance with Article 476.
of the Civil and Commercial Procedural Code, whose application is supplementary in criminal matters, the judge
has the authority to request opinions from universities, academies, corporations, institutes, and entities
public or private scientific or technical entities, when the expert report required operations or
highly specialized knowledge.
Unlike the report test, in the case of the mentioned article 476, it is about requesting an opinion.
qualified based on specialized knowledge. Such may be the case of the analyses carried out by
technical organizations in the case of accidents, land-based in general, railway, air, or naval.
When it comes to cases with economic content, the assistance of the Faculty of Sciences is often required.
Economics of the University of Buenos Aires. The possibility of including it in this section could also be considered.
to resort to the so-called Amicus Curiae (or friends of the court), a circumstance that is found
specifically established by Agreement 28/2004 of the Supreme Court of Justice.

Experts, for their performance in the majority of jurisdictions, must register on the respective lists that
organizes each of the Chambers. It is not relevant to elaborate here on the procedure that is carried out in the
the remainder of the statutes, and we will refer only to the Criminal and Correctional statute.

In this last case, the registrations require, in addition to the requirements set for the rest of
the privileges, that the professional public accountants who intend to act present a certificate of
background issued by the National Directorate of Recidivism and Criminal Statistics, an element that allows
verify that they are not subject to criminal records.
Based on those registered under such conditions, a list of accounting experts will be drawn up.
available to be chosen by defendants or plaintiffs for the purpose of acting as 'expert witnesses'.
Those interested in hiring the services of the accounting expert must request the magistrate in charge of the
due to the corresponding designation. The experts on this list are not appointed by the judges to
starting from lotteries or other similar assignment procedures, as they do not carry out their work by
initiative of the magistrate, but rather from the free choice of those involved in the case.
Regardless of the experts proposed by the parties, and appointed by the judges, who
is responsible for leading the expert task, beyond the primary authority of
the magistrates, is the official accounting expert. The function of such experts will be described, extensive and
specifically, later on.
Although the expert witnesses must come from the list of registered individuals mentioned, it is common for some
from the parties, especially the defendants, propose professionals who are not on those lists.
Despite the forecasts and regulations in force regarding this, in most cases the judges,
or the appellate courts, accept the appointment as party experts of accountants not registered in the
list of Criminal and Correctional jurisdiction. The main argument is based on considering that it must be guaranteed
the right to defense, and the free choice of the professional who will represent the party, contributes to that end(2).
While such a premise may be considered reasonable, the truth is that this creates a situation
discretionary, where while some must demonstrate not being affected even upon registering
sanctions that disqualify them from performing expert functions, other professionals may be
appointed without carrying out any kind of verification in this regard, nor demonstrating their independence of judgment
and background of the specificity of criminal jurisdiction.

5.2.3. Inability and incompatibility

Article 255. - Those who cannot be experts are: the incapacitated; those who must or can refrain from testifying as witnesses or
those who have been cited as such in the case; those who have been removed from the respective registry due to sanction;
the condemned or disqualified.
In the case of article 255, restrictive conditions are introduced regarding the expert's ability to act.
On one hand, there are those who have limitations derived from their personal capacity,
established in thearticle 54of the Civil Code, or of certain legal sanctions. On the other hand, the limitation
reaches those who can be assimilated to the position of witnesses, or who have actually been summoned
as such in the cause, since in this case they must fulfill this function and would lose objectivity in the
expert task.
Regarding the witnesses, we must refer to the terms of Article 244 of the CPP, which states:
They must refrain from declaring about the secret facts that have come to their knowledge by reason of
own status, occupation or profession, under penalty of nullity: the ministers of an admitted religion; lawyers, attorneys
and writers; the doctors, pharmacists, midwives, and other helpers of the art of healing; the military and officials
public about state secrets.
However, these people will not be able to deny their testimony when they are released from the duty of confidentiality.
by the interested party, except for those mentioned first.
If the witness wrongly invokes that duty regarding a fact that cannot be included in it, the
the judge will proceed, without further ado, to interrogate him.

That is to say, those who are in situations like the ones described should not act as experts.
in article 244 stated, since they may eventually be considered as witnesses.

5.2.4. Excusal and challenge

Article 256. - Without prejudice to the provisions of the previous article, the legal grounds for excuse and challenge are
the experts established for the judges.
The incident will be resolved by the judge, after hearing the interested party and following a summary investigation, with no appeal allowed.

According to Article 256, we must refer to the grounds provided for judges, which are found
included in Article 55 of the CPP, which states:
Article 55. - The judge must recuse themselves from the case when one of the following reasons exists:
1°) If I had intervened in the same process as an official of the Public Ministry, defender, complainant,
complainant or civil actor, or would have acted as an expert or known the fact as a witness, or if in other proceedings
judicial or administrative would have acted professionally in favor of or against one of the parties
involved. (Clause replaced by art. 88 of law 24.121 B.O. 9/8/1992).
2°) If as a judge you have intervened or intervene in the case, any relative of yours within the fourth degree of kinship
consanguinity or second degree of affinity.
3°) If he were related, in the previously indicated degrees, to any interested party.

4°) If he or any of those relatives have an interest in the process.

5°) If he was or has been a guardian or curator, or has been under the guardianship or curatorship of any of the interested parties.

6°) If he or his relatives, within the aforementioned degrees, have a pending lawsuit initiated beforehand, or
society or community with any of the interested parties, except for the public limited company.

7°) If he, his spouse, parents or children, or other persons dependent on him, are creditors, debtors or guarantors
of any of the interested parties, unless it is about official banks or those established in the form of companies
anonymous.
8°) If before starting the process they had been an accuser or a complainant of any of the interested parties, or accused.
or reported by them.
9°) If before starting the process any of the interested parties has initiated impeachment proceedings.
10) If advice had been given or an opinion had been expressed extrajudicially about the process to any of the
interested parties.
11) If you have a close friendship, or a manifest enmity with any of the interested parties.
12) If he, his spouse, parents or children, or other persons who are dependent on him, have received or will receive benefits
of importance to any of the interested parties; or if after the process has started, he has received gifts or
gifts, even if they are of little value.

In order to define the scope of the concept of 'interested parties', article 56 states the following:
For the purposes of the previous article, the interested parties will be the accused, the offended or harmed party, and the civilly liable party.
defendant, although the latter do not constitute a party.
A professional who is included in any of the grounds cannot act as an expert.
describes. Both defenders or representatives may challenge the judge, and therefore the expert, when they
present one of the circumstances provided for in article 55 of the CPP.

5.2.5. Mandatory charge

 Art. 257. - The appointed expert shall have the duty to accept and faithfully perform the position, unless they have
a serious impediment. In this case, you must inform the judge upon being notified of the appointment.
If he/she does not attend the summons or does not present the report in due time, without justified cause, he/she will incur in the
Responsibilities indicated for witnesses by articles 154 and 247.
Unofficial experts will accept the charge under oath.
If the appointed expert, whether an official expert or a party expert, considers that there is some burden on him.
the grounds for disqualification must be made known so that the magistrate can decide on it
continuity in the cause, since in principle the production of the expert report is mandatory.
Articles 154 and 247 of the CPP refer to the sanctions applicable to witnesses in
in case of not appearing, or not providing a statement within the established deadlines. They can reach up to 2
days of arrest and the initiation of criminal proceedings.

5.2.6. Appointment and notification

Art. 258. - The judge shall appoint an expert ex officio, unless he/she considers it essential that there be more. He/She will do so among
those who have the character of official experts; if there are none, among the public officials who, by reason of their
professional title or relevant qualifications, are qualified to issue an opinion about the fact or circumstance
what is wanted to be established.

This resolution will be notified to the public prosecutor, to the plaintiff, and to the defenders before the proceedings begin.
expert operations, under penalty of nullity, unless there is great urgency or the investigation is
extremely simple.
In these cases, under the same sanction, they will be notified that the expertise was carried out, so that they can have their examinations done.
results through another expert and request, if possible, their reproduction.
Although in general a single expert is capable of taking charge of a forensic study, there are
cases in which the magnitude of the cause, its complexity, or the need to raise the profile of
apparent objectivity requires the appointment of more than one accounting expert.
In recent years, as will be seen in point 8.2, the emergence of causes related to crimes
complex economic issues, often intertwined within the framework of corruption crimes in public domains,
they have resulted in the designation of several official accounting experts. This is without prejudice to each of
The parties involved in the case shall also designate their own expert witnesses.
On the other hand, it is also important that both the appointment of experts and the reports
produced by them, shall be communicated to all parties in the case so that they can carry out the
necessary actions in pursuit of their interest in the file. Although the experts act by delegation of the
magistrate, and this is reported to him, the result of his work is content of importance for the case in general
and must be open to the knowledge of all interested parties.

5.2.7. Faculty to propose

Art. 259. - Within three (3) days from the respective notifications provided for in the previous article,
Each party may propose, at its own expense, another legally qualified expert, in accordance with the provisions of article 254.

This article is of interest to the proposing parties and not to the experts, as it concerns the authority
to replace the professional who, having been proposed, does not meet the requirements for
perform the role.

5.2.8. Directives
Art. 260. - The judge will direct the expert opinion, will formulate the specific issues to be clarified, will set the deadline in which it must be
the expert will be issued and, if he deems it appropriate, will assist in the operations.

He may also authorize the expert to examine the proceedings or to attend certain procedural acts.
 Article 260 is of fundamental importance as it fully defines the absolute leadership.
from the expert task by the judge in charge of the case.
The accounting expert acts within the framework of the instructions issued by the judge or prosecutor, and must not
overstep by making decisions on their own regarding the acts to be carried out in relation to the process.
When the accounting professional considers that they must carry out some action not foreseen in the
terms of their designation, they must communicate it to the magistrate so that the magistrate can evaluate it
the relevance of the measure and eventually approve its production.

5.2.9. Conservation of objects

Article 261. - Both the judge and the experts shall ensure that the items to be examined are preserved as much as possible.
so that the expertise can be repeated.
If it is necessary to destroy or alter the analyzed objects or there are discrepancies regarding the way to conduct them
operations, the experts must inform the judge before proceeding.
This is an article of very rare application in the case of expert assessments on information and documentation
accountable.
It is unlikely that the conduct of the accounting tests will lead to the destruction of the
materials, fundamentally composed of documentation and accounting records.

5.2.10. Execution. New experts

Article 262. - The experts will conduct the examination together, and will deliberate in a secret session, to which only the
judge, and if they agree, they will draft their report collectively. Otherwise, they will prepare their respective reports separately.
opinions.
If the reports fundamentally disagree, the judge may appoint more experts, depending on the importance of the case.
to examine them and report on their merit or, if feasible and necessary, to conduct the expertise again.

This article establishes the substantial part of the accountant expert's performance. Three are established
premises that determine how the expert activities will be carried out:
They will work together, that is, the actions related to the expert task and
The collection of evidence will take place in the presence of all designated experts. Each
one of the experts must refrain from carrying out expert actions on their own,
relationship with the elements provided for the conduct of the expertise.
b) The sessions in which the expert tasks are carried out must be secret, meaning that to the
No person who is not specifically authorized can attend.
magistrate. Thus, the expert panel will basically consist of the magistrate and the experts.
designated. Any other person who intends to participate in the tasks must request it.
expressly to the judge or prosecutor of the case.
Regarding this item, and expanding on the concept presented in it, it is important to consider the
statement of the articles of the CPP that provide the possibility of participation, with some limitations
for their authorization and for their intervention, to the Public Ministry, to the defenders of the parties, to the
the parties, and in particular the accused, which are detailed in Point 5.2.11.
c) The report can be drafted in a single version, common for all experts, when obviously
everyone agrees with the conclusions presented in it. It is not mandatory that this
it happens, and when one of the accounting experts believes that their opinion is not present
represented in the text of the common report, has the right to submit a separate report of its own.
It is not planned, and in our view it would be contradictory, for an expert to participate without
discrepancies of the common report and at the same time present a separate report. The
discrepancies may be based on:
a. the way the procedures were carried out, or
b. in the conclusions obtained.
5.2.11. Participants in the expert probative process

5.2.11.1. Participation of the Public Ministry

Article 198. - The Public Prosecutor's Office may intervene in all acts of the investigation and examine at any time.
the performances.
If the prosecutor has expressed the intention to attend an event, they will be notified in due time.
and under consistency, but that one will not be suspended or delayed due to his absence. When he attends, he will have the
duties and powers prescribed by Article 203.

5.2.11.2. Right to assistance and judicial authority

Art. 200. - The representatives of the parties shall have the right to attend home searches, recognitions,
reconstructions, expert evaluations and inspections, except as provided in article 218, as long as by their nature and
characteristics should be considered definitive and irreproducible, just like the statements of the witnesses that
due to their illness or other impediment, it is presumed that they will not be able to attend the debate.

The judge may allow the presence of the accused or the offended party when it is useful to clarify the facts.
or necessary due to the nature of the act.
The parties shall have the right to attend home searches.

5.2.11.3. Notification: extremely urgent cases

Article 201. - Before proceeding to perform any of the acts mentioned in the previous article, except for the registration
home confinement, the judge will order, under penalty of nullity, that the public prosecutor, the complainant party, and the
defenders; but the diligence will be carried out at the established time, even if they do not attend.
Only in cases of extreme urgency can action be taken without notification or before the set deadline, with a record being made.
of the reasons, under penalty of nullity.

5.2.11.4. Possibility of assistance

Art. 202. - The judge shall allow the defenders to attend the other acts of the instruction, provided that this does not
endanger the achievement of the goals of the process or prevent a timely and regular action. The resolution will be
irrevocable.
Once attendance is admitted, the defenders will be verbally notified before the acts are carried out, if possible.
leaving a record.

5.2.11.5. Duties and powers of the assistants

Art. 203. - The defenders who attend the instructional acts may not make signs of approval or
disapproval, and in no case will they take the floor without the express authorization of the judge, to whom they must address when
the permit is granted to them. In this case, they may propose measures, ask questions, make observations
that they consider pertinent or request that any irregularity be recorded. The resolution that results from this will be
always unappealable.

5.2.12. Opinion and assessment

 Article 263. - The expert opinion may be issued by written report or recorded in minutes and shall include, in
as much as possible
1°) The description of the people, places, things, or events examined under the conditions in which they were.
found.
2°) A detailed account of all the operations carried out and their results.
3°) The conclusions drawn by the experts according to the principles of their science, art, or technique.
4°) Place and date where the operations were carried out. The judge will assess the expertise in accordance with the rules of sound
criticism.
We will refer to the content of this article later, in point 8.
It should be mentioned in this case that the conclusions of the report obviously do not bind the magistrate to
acting based on them, however, denying them implies the need to incorporate other elements that possess
at least similar significance for the formation of opinion.(3)

5.2.13. Other relevant concepts

5.2.13.1. Necessary autopsy

Article 264. - In any case of violent death or suspicious of criminality, an autopsy shall be ordered, unless...
The external inspection will reveal the cause of death.
This article pertains to the actions of medical experts, not applying to the experts.
counters.

5.2.13.2. Document comparison

Art. 265. - When it comes to examining or comparing any document, the judge will order the presentation of the writings.
for comparison, private writings may be used if there are no doubts about their authenticity. For obtaining
these writings may be subject to seizure, unless their holder is a person who must or can refrain from
declare as a witness.
The judge may also order that one of the parties be part of the document. A record will be made of the refusal.
constancy.
This article refers to the function of handwriting experts, so it is not applicable to the
accounting expert reports.

5.2.13.3. Reservation and penalties

Article 266. - The expert must keep confidentiality regarding everything he/she learns due to his/her actions.

The judge may correct the negligence, misconduct, or poor performance of the experts with disciplinary measures and even
replace them without prejudice to any criminal liabilities that may correspond.

Beyond the intrinsic responsibility of the accounting professional, this article prescribes
responsibilities inherent to the expert task. In this sense, an essential condition is to maintain in
reserve the knowledge acquired as a result of his participation as a forensic accountant, in the
causes that are assigned to them.

We must remember that it is the judge who is responsible for overseeing the expert tasks of
agreement with art. 260. In this sense, it is said magistrate who has the authority to take actions
necessary to correct acts that disrupt the conduct of expert activities.
When the magistrate understands that the expert activity is inadequate due to the actions of the
In our case, the accountant will be able to impose disciplinary sanctions.
5.2.13.4. Fees
Article 267. - Court-appointed experts or those requested by the public prosecutor shall have the right to charge fees,
unless they have a salary for official positions held by virtue of specific knowledge in the science,
art or technique that requires expertise.
The expert appointed at the request of a party may always charge them directly to this party or to the condemned party in costs.

The fees are limited to those who do not receive salaries for official positions of the
official divisions or organizations they represent.
In the case of expert witnesses, their fees are agreed upon personally with the parties who appoint them.
they propose.

6. THE EXPERT FUNCTION

The work of the Public Accountant within the framework of criminal cases is fundamentally carried out in
his condition as an expert. However, such activity is not exclusive, as there is also the possibility of
to serve as stable staff of courts, tribunals, or the Public Prosecutor's Office. In these
In recent cases, accountants act as advisors to judges on matters of their specialty.
When the Public Accountant carries out expert activities proper, their performance can
based on different regulations.

6.1. The Official Accountants Expert Body

First of all, we must take into account the existence of the Body of Official Expert Accountants,
dependent on the Supreme Court of Justice of the Nation. This body has a planned allocation
of 22 positions of Official Accounting Experts.
The existence of official expert bodies is provided for in article 52 of the decree-law.
1285/58 which establishes that as auxiliaries of national justice and under the supervision of the authority
that establish the regulations of the Supreme Court, technical expert bodies will function; of doctors
forensic experts, accountants, and calligraphers.

The Supreme Court of Justice of the Nation has upheld the importance of the reports produced by
the Official Accountants Experts, since they arise from professionals who have special qualifications
conditions of suitability and correctness(4). In this sense, and as we will see later, the members
Members of the Body of Experts are appointed after a competition that tests their knowledge and
ability to resolve technical issues and where it must also demonstrate the quality of its background.
On the other hand, such experts are subject to disqualifications and recusal with the same scope of
the judges. It should also be noted that official accounting experts are officials of the Justice
National, and in this sense they are subjected to the control systems of the National Judiciary.
All of this allows us to conclude that such professionals ensure criteria of impartiality that have been
recognized over time.
The appointment of Official Accounting Experts is carried out by the Supreme Court of Justice of the
Nation, after conducting a background and knowledge competition that consists of two
theoretical-practical exams, one written and the other oral, and a personal interview.
The requirements to be designated as an Official Forensic Accountant are detailed in article 8 of the Annex.
Section II of Resolution 16/2011 of the Supreme Court of Justice of the Nation, which approves the 'Regulations for the Contest to occupy
expert positions in the Body of Official Accounting Experts of the National Justice" and they are as follows:
a) Hold a public accountant degree issued by a recognized national or private university.
or foreign. In the latter case, the title must be accompanied by the validations or
corresponding validation.
b) Have a minimum of 8 years of professional experience.
 c) Acknowledge experience as a court expert, party expert, technical consultant, bankruptcy trustee, other positions
as an assistant to justice and/or other background in economic sciences.
d) No registrar, in the five years prior to the date of registration, disciplinary sanctions before the
Professional Councils in Economic Sciences and Graduate Schools in Economic Sciences
from the jurisdictions of the country where the applicant was registered, nor before the
Courts where he/she would have registered as an expert witness, party expert, technical consultant, trustee.
bankruptcy and other roles as an assistant to the judiciary, having to prove it by means of
certificates issued by the corresponding authorities.
Regarding the functioning of the Official Accounting Expert Corps, we must refer to Annex I.
from Agreement 16/2011, which approved the General Regulations of the Corps of Accounting Experts
Officials.
Among other things, it is worth reviewing the content of some of the articles of that regulation.
Article 1
The Official Accountants' Experts Body is a technical dependency of nature and purpose.
exclusively expert, functioning under the supervision of the Supreme Court of Justice of the Nation.
Its mission is to rule on matters of its specialty that the organs of national justice and
federal submit for your consideration.
According to the text of the regulation, the organization does not carry out any other type of professional activities.
accountable. This is fundamentally based on the need to maintain the strictest concentration on the
expert tasks, as well as in avoiding the existence of possible confrontations between the tasks
expertise and others that could be undertaken.
Article 2
The Body will comply with the expert requirements established by national judicial magistrates and
federal authorities with jurisdiction in criminal matters, as well as those of the Public Prosecutor's Office in the cases
foreseen by articles 196 and 196 bis of the National Code of Criminal Procedure.
Exceptionally, judges of the remaining jurisdictions may request their intervention when there are notable reasons.
urgent reasons, poverty or duly accredited public interest, or when the particular circumstances of
if their advice was necessary (art. 63, section c), of decree-law 1285/58 Organization of Justice
National).
It will also intervene when the Supreme Court of Justice of the Nation establishes it by virtue of other
specific provisions.
Except for circumstances that must be perfectly justified by the respective magistrates, the experts
official accountants only opine on cases that develop in the criminal jurisdiction, both of the
national justice as federal, or when the Supreme Court of Justice of the Nation itself requires it.
While the text of the cited article refers to compliance by the 'body', it should be taken into account
It states that the expert requirements made by the magistrates are responded to by each one of
the Official Accountants Experts individually and personally. The body as an entity does not participate in the
specific expert activities for each case. The responsibility for the opinions expressed in the report
It falls on the expert who prepared it.
Article 3
The expert tasks will be carried out at the venue determined for the operation of the Body by the Supreme Court of Justice.
of the Nation, without prejudice to those that must exceptionally be carried out outside of it in cases where
special circumstances require it.
The geographic area of operation of the Corps is the territory of the Autonomous City of Buenos Aires; they remain
excepted from this limitation are the expert proceedings ordered by national and federal judges based in
in said jurisdiction.
Federal judges based in other jurisdictions may commission the conduct of expert opinions outside of
geographical scope of action of the Corps, exclusively when the need for its intervention is justified
through a reasoned resolution.
Although there is the possibility of carrying out expert activities outside the scope of the City of
Buenos Aires, this must be sufficient justification by the magistrate who requests it.
Such a situation arises from the need to have at the headquarters of the Official Accountants Expert Body with
the professionals that compose it, since it is in that place where the magistrates go to carry out
the requirements or questions regarding each cause. On the other hand, since each expert is in charge of
simultaneously several judicial files under study, needs to remain at the headquarters of the body to the
effects of being able to work with several of them throughout the day. To be absent from the body for the
The execution of a particular expert report implies the need to suspend all other ongoing procedures.
and therefore it should only happen when there is no other possibility of carrying out the tasks
expert opinions in another way.

Additionally, the need to preserve the chain of custody should also be considered.
of the elements used as a basis for the conduct of expert tests. Such circumstance loses
effectiveness when the certified documentation remains in the possession of third parties.
Article 5
The direction of the Body will be in charge of a dean and a vice-dean.
The dean will be appointed by the Supreme Court of Justice of the Nation from the shortlist of experts who have obtained
the largest number of votes. The voting will be held among the full members of the Corps and will be secret.
To be appointed dean, the following requirements must be met:
a) Having held the position of expert for more than five years.
b) No disciplinary sanctions recorded during the last five years.
The dean will serve for three years in his position and may be appointed according to the procedure established herein.
article, for another consecutive period.
Unlike what has happened until now, starting from the regulations of the body established by
the Agreement 16/2011 of the CSJN, the Dean of the body will be appointed by the Supreme Court of Justice of
the Nation, based on a shortlist that will emerge from an internal voting process. Previously, it was not
they were conducting voting among the accounting experts.
Article 15
The experts will rule on the issues submitted for their review by the requesting body.
They will participate in the tasks assigned to them until their conclusion. If there is any impediment, a draw will be held.
to another expert, who will be responsible from that moment on for completing all pending procedural steps.
The experts will act with independence of judgment. In their capacity as auxiliaries to the requesting bodies, they must
to inform them, under their responsibility.
As previously described, the experts act personally and in this capacity are under their
responsibility to respond to the requirements of the magistrates, such as reporting on their work when
it has been requested.
Article 16
The professionals of the Official Body of Chartered Accountants cannot be appointed as experts upon proposal
on no account during the three years after cessation of their duties, to intervene in expert assessments that
have been entrusted to that Body.
Since the publication of Acordada 16/2011 by the CSJN, the possible role of accountants is limited.
once they cease their functions in the body of experts. Currently, they must wait for a period
three years from the mentioned cessation to act again as accounting experts, in this case to
proposal by part, in cases that are being processed in the body of experts.
This limitation does not apply to possible professional performance in expert work that takes place in
other judicial areas.

6.2. Acting as an expert witness for one party

On the other hand, public accountants can act as expert witnesses at the request of one of the parties.
those involved in a case. This is provided for in the Criminal Procedure Code in its article 254. As already
As previously stated, this function requires the prior registration of the professional in a registry.
enabled by the judiciary, but on some occasions the judges have appointed experts without them
fulfill such a requirement. The activity of the expert witnesses consists of participating in the expert committee,
together with the official expert and the individuals designated by the magistrate.
 A majority current holds that expert accountants on behalf must carry out their task
following the general guidelines for any public professional action, that is, they must respect
the principle of independence of judgment. In this case, it is taken into consideration that the party experts
are proposed by each party, but then are appointed by the judge, and from that moment on, their
The task is under his supervision and aims to facilitate his work and contribute through
from the application of the scientific method to the discovery of the 'procedural truth'.
Such criterion does not have total consensus, since in other cases the opinion, which we do not share, leans
for thinking that the party expert must represent the one who hired him and therefore strive to do
to value the most favorable criterion for it.
It is possible that neither of the two options turns out to be absolutely true. The performance within a
The accounting expertise process involves resolving a certain number of variables, each of which can
be a reason for different interpretations and ways of presentation. In many cases, there is not a single
the possibility to undertake an expert report, and in those situations, the expert appointed by a party can exercise their right
to guide its activity towards the option that least harms the party that proposed it.
A third way for public accountants to act, as experts in the criminal field, consists of
represent organizations that carry out research or participate in it, as happens with the
Public Prosecutor's Office.
They can also do it at the proposal of public organisms, usually when they act as
complainants, although they can also do so in the case of being charged in the cases. They have already been
detailed above the organisms that are usually in these conditions. In reality, such intervention
it is configured in the form of 'expert witness for one party'.

6.3. Acting as an 'ad hoc' expert

This situation arises when the magistrate summons an expert from some organization of
professional relevance, whether from the academic field, research, or other similar areas, for the purpose of
to participate in the expert task.
Unlike what happens in the case of the participation of 'Amicus Curiae', where the one who presents
It is the body itself, the ad hoc expert is selected by the qualified body and acts in
the cause in personal form like any other accounting expert.

7. THE ACCOUNTING EXPERT PROCESS

7.1. Preparatory activities of the accounting expert

In developing the articles of the CPP, we have already mentioned that it refers to expert reports in a manner
generic and we present specific references to the points that are more or less applicable to the
development of forensic accounting processes in particular.
The scope of development of an accounting expert opinion begins long before the proceedings arrive at
Body of Official Accounting Experts, and it can be differentiated from the technical execution of the tasks.
expert reports proper. Its start dates from the moment when the defendant or the complainant propose
its realization, and eventually suggest a set of issues to be resolved through it. A
the second step occurs when the presiding magistrate, judge, or prosecutor decides to accept it in full or in part,
or not accepting the suggestions received in the file, and adding, if they consider it, other questions to
to technically elucidate.
In the case of party experts, their role officially begins when they accept the position for the
what was proposed by the party and appointed by the magistrate. However, their participation in the
Tasks specific to the execution of the appraisal will begin when the official accounting expert summons him.
forensic college.
 a) Receipt of the case
From an operational point of view, the expert circuit is inaugurated when the case and the documentation
related enter the Official Accountants Expert Body through its Entry Desk, and it is
assigned through a computer drawing to the accounting expert who will carry out the task. It is worth noting that
the draw is conducted through a computing system created by computer specialists
from the Supreme Court, and monitored by the same sector. Therefore, this system guarantees that the cases are resolved
assigned strictly at random, preventing any personal orientation maneuver of the files
towards a particular accounting expert.
In some cases, the case may be sent to the Body of Experts without the collected documentation.
the one that is sent afterwards. On other occasions, the magistrate requests the expert for the documentation
necessary for the completion of the expert report to be consulted in another location where it is deposited.
In the case of files that come from the Economic Criminal Courts and Tax Criminal Courts,
The request for the appointment of the accounting expert is initially received in the CPCO, and only now
after the court has been informed, and the name of the expert accountant communicated by it to the parties, the
The magistrate proceeds to send the file and the documentation.
b) Filing and custody of documentation
According to articles 13 and 14 of the regulations of the Body of Expert Accountants, Agreement 16/2011
CSJN, once the elements have been reviewed by the Entry Desk, pass into the hands of the expert.
accountant, who becomes responsible for their custody. This continues until their
return to the Entry Desk sector, either for having completed the expert assessment or for having resolved
return the case to the magistrate for some other reason.
Article 13
The official in charge of the Reception and Dispatch Desk will be responsible for the custody of the proceedings.
entered and the rest of the accompanying expert material, until its delivery to the designated expert, who must pick it up at
a maximum period of 24 hours.
Article 14
Upon withdrawing the reasons, the experts must verify the details of the files and the accompanying documentation.
according to the individualization carried out by the Inputs and Outputs sector.
During the performance of their duties, the experts will be responsible for the custody of the elements subject to
expertise, whether acting individually or with the participation of party experts, technical consultants and/or
any person authorized by the requesting body.
In all cases, the expert will submit the report to the Input and Output Desk and, if applicable,
its annexes, in original and duplicate.
c) Preliminary expert activity
Although they may not develop in strict order, it is necessary to consider that one of the first steps
from the official forensic accountant consists of determining whether accounting expert witnesses have been appointed by the parties,
and if they have accepted the position. Although it is not expected that the official expert accountant will analyze the
conditions of the expert witnesses, it should assess whether there are elements that constitute limitations to the
participation of those who may jeopardize the joint expert task. For example, when there
warns that the party expert is not included in the respective lists or when it is deemed that
may be subject to the grounds for disqualification or recusal. The official accounting expert may present in
knowledge of the magistrate of such circumstances and wait for the rulings of the judiciary to continue
with the expert report.

A second step is to formally summon the party experts to constitute the board.
expert. The summons is usually carried out by teletype, although nowadays it is possible
carry it out via emails. Phone calls can also be used.
but they lack the main control element, which is the possibility of confirming their existence in the
case of disputes between the experts.

7.2. Proper expert tasks

7.2.1. Examination of the expert questionnaire
The expert board convened, in case there are party experts, or the official court-appointed expert in formal manner.
exclusive, in its case, will begin the activity by evaluating the content of the so-called expert questionnaire.
Although it is called a questionnaire, it is not strictly so, as its main content is usually presented.
as orders to carry out specific tasks and not as questions to be answered. This is how it can
see that the questionnaires contain expressions such as the following: 'so that the expert can say if it has happened
such fact.
The main problem with questionnaires is that they are supposed to be useful for
to favor the production of evidence, that is, to contribute to clarifying or understanding the facts that are the reason
of investigation into the cause, to assist the court in the perception of the fact and its
consequences. In that sense, they must be precise, both in their content and in their terminology, since
Otherwise, they can lead to ambiguous responses or irrelevant information.
Since questionnaires are not usually written by public accountants, it is common for them to lack
technical rigor, in its content and in its terminology and accounting logic, which leads to the need for
having to interpret the text of the inquiry. Some questionnaires present confusing language, lack of
relationship with the topic being analyzed, objectives not focused on the precise point, or they imply the execution
from a mere accumulation of data. On the other hand, as in most cases, it is not mentioned
explicitly what is intended to be technically proven with each point of the expert questionnaire, the expert
The accountant lacks elements to put the context of the content they are analyzing. As an example, we can ...
citing the case in which one asks about the total expenses of a business, without referencing whether it is
of economic expenditures or results, or to financial expenditures. Also when it comes to a
individual who does not keep accounting records, it is requested to inform if the records are kept legally
Something similar happens when a list of vouchers is requested to be summed up, or when it needs to be prepared.
a form with the data containing a group of documents. At other times, all are requested.
business movements over an extended period, when what is being discussed pertains to a period
much smaller and to a much more limited universe.
Another problem with questionnaires is that instead of addressing substantial aspects
and complex, they aim to cover all kinds of more or less scattered or loosely focused topics, which
leads to them presenting a huge extent and, in some cases, a very low level of contribution from the standpoint of
professional view.
Among other things, it should be considered whether the points refer to issues that are within the
scope of action of the public accountant or not, since requests related to issues are often included
legal matters, or issues whose responsibilities correspond to other professions such as appraisers,
architects or engineers, chemists, pharmacists or notaries. This happens, for example, when
inquiry about the market value of a property, the amount of waste generated by a process
productive, or the quality of the building materials included in a work.
In summary, questionnaires can have a significant number of problems, which limits
or even goes so far as to prevent an adequate and legally compliant action by the expert accountant. By way of
For example, we summarize them in three groups: the first corresponds to the cases where it does not apply.
the execution of the expert report commissioned because it does not involve issues related to the competencies nor the
knowledge of public accountants:
a) It contains themes from other professions

b) It contains societal themes of a strictly legal nature

c) Contains tax issues of a purely legal nature
d) It contains criminal topics from a legal point of view
e) It intends to carry out an audit.
It is a global investigation
There are no guidelines for their implementation when they are necessary and essential.
It deals with commercial, management, technical or IT issues.
It refers to appraisals at present value or 'market' value.
j) Neither are attached nor is it specified how to obtain the elements that you request to review
 k) It results in impossible compliance
In the second of the cases, it is very simple to carry out the expert assessment. However, it could be said that in
in these situations, a forensic study should not even have been requested, as the results can be
obtained by the magistrate himself and his team without any difficulty through the information channels of
public access
a) Request exclusively simple mathematical calculations
b) They are obvious things
In the last case, we find situations where expert work can become difficult, but without reaching
invalidate the possibility of carrying it out. Notwithstanding this, the expert can address the magistrate with the
purpose of exploring the possibility of improving or correcting the content of the questionnaire:
a) It has unclear language or terminology that is not understandable

b) The scope is inadequate for the needs of the case

c) The topics are not correctly defined
d) The questions are technically illogical
The extension is very difficult to address in a reasonable time.
f) Ask for general opinions that are not related to specific topics in the documentation
It contains topics that are not relevant to the case
On some occasions, the expert questionnaire was formed throughout the file with successive
additions and amendments, through multiple presentations from the accused, the complainant, and the Ministry
Public and of the Judge himself. Suggestions are presented that are later taken only in part and to which they
they are added others. All this happens over various pages of the file. It is necessary then to carry out
An arrangement of all the contents in order to establish what the requests ultimately are.
carried out and establish the precise scope of the questionnaire through a complete orderly text.

7.2.2. Organization of the expert activity

Once the scope of the expertise to be carried out is determined, it is necessary to establish the working guidelines or
planning of the activity; whether it is an individual expertise or the existence
from an expert school.
In this sense, the elements that may be useful should be considered, both records and
documentation, the way in which your evaluation will be conducted, the place where they will be verified, the sequence
likely in which the task will be developed, and all those aspects that are relevant for the purposes of the
organization of work.

7.2.3. Survey and evaluation

The next step involves reading, interpreting, analyzing, and, if applicable, transcribing
each of the records and documents that are part of the case and that have been deemed to have
relationship with the points that must be reported according to the expert questionnaire.
Always considering the expert questionnaire as the main element, this stage develops a
professional activity based on procedures based on the scientific knowledge of the profession
accountant, and which involve highlighting both the specific conditions of the public accountant professional
as their specific expertise in the field of judicial acting.
Here we can find causes of simple resolution due to the low complexity of the request.
carried out, others tend to be of medium difficulty, either due to the type of responses to be elaborated or to
the diversity of the elements to consider, and a third group that we can call 'megacauses'. In
In point 8.2, we will refer specifically to these last ones due to their importance.
 The tasks of gathering evidence will be carried out in the presence of all the experts who
they make up the expert school. During this stage, a record will be kept of the progress of the activities, in
minutes that will be signed by the experts participating in the respective meetings. In the same minutes, it will be noted
Once the lack of attendance from an expert is established, and if this becomes repetitive, the magistrate will be informed.
to take the necessary measures to avoid further delays in the progress of the expertise.

7.3. Scope of the expert work

Regarding this issue, multiple positions are presented, and we will mention some of them to
try to understand how the expert accountant should position themselves regarding the need to issue a report based on
of a forensic questionnaire.
A current opinion holds that the requirements of the expert questionnaire must be addressed.
strictly adhering to the text itself. It should be noted that no knowledge should be spared
that allows for a complete response, but there should be no additional comments added. By
For example, in the case of being asked to detail the sales of a month, it should be focused on preparing a
list of the data of said operations based on a reliable record. Under this first position, not
it should be mentioned if sales are disproportionate compared to all other periods, if the
invoices seem to be fake or if the clients have never paid for the sales that were made to them. Although everyone
The additional data may be of interest to the forensic accountant; adding them would imply modifying the
scope provided in the questionnaire prepared or approved by the magistrate. The insertion of elements that
they were not specifically requested could lead to a challenge of the submitted report.
A second doctrinal current participates in the idea that, although the questions are directed to a point
In particular, the expert should add all comments that have some relation to what is being addressed.
observing, it can provide additional knowledge to the magistrate. It would therefore be an opposing stance.
as detailed in the previous paragraph.
A third possibility, in which some experts participate, is to consider that in the face of any
Expert requirement must be acted upon as if it were an investigation in itself. It should not be seen as
only what arises at first glance as text from the questionnaire, but to inquire in each case trying to
discover something more, trying to find out what is hidden behind what originally appears. In a
simple example, if the questionnaire asks to know whether a certain record is kept legally, no
to carry out a mere formal control of the conditions that are observed in it; rather, to try to find out if the
legal identifications seem legitimate, if the signatures of the authorities correspond with others that
they appear in the file, if the social acts make reference to any topic related to it.
registration, etc. If the question refers to verifying whether a document is registered, also inquire
about the quality of the document, of the issuers of the same, of its content, of the accounting records
where it is located and any other similar aspects that can be known.
In this last assumption, the possibilities increase that the expert report will be questioned by
some of the parts. It is possible that in some cases it represents an interesting contribution to the cause, while
that in other cases, when there are questions about the work done, for having deviated from the
requested, may generate conflicts that complicate the outcome of the expert examination.
There are currently no mandatory regulations that resolve the issue, which is why the characteristics
the approach to the expert questionnaire response depends on the perspective of the intervening expert, but
we understand that the use of technical criteria based on knowledge should be preserved
professionals of the forensic accountant, who allow for getting closer to the truth of the investigated facts through
of the expert testimony.

7.4. Deliberation of the expert board

Once the task of surveying the documentation and records is completed, that is, when
they have completed the tasks that were originally planned or those that have been added as
As a consequence of the progress of the exam, it is necessary to move to the stage of defining opinions and responses.
to each of the points of the expert questionnaire.
 In this phase, two types of actions by the expert accountant should be distinguished: when they carry out their work.
as the sole expert, that is to say when all the work is under the charge of the official accountant expert, and when
must act in conjunction with party experts.
In the first case, the work consists of a conceptual reduction process of the elements.
gathered throughout the survey, with the purpose of generating a conclusion in the form of an opinion, when
This was requested of him, or rather a precise answer when it comes to calculations, observations, and verifications.
The expert, under his sole and exclusive responsibility, subjectivity, and judgment, formulates the responses and substantiates them.
technically in the way that he/she considers appropriate.

In the case of carrying out the work in the form of an expert college, an additional element is added. It must ...
to make successive approximations based on the technical work of accounting experts with the purpose
to try to reach a common conclusion, as provided for in the CPP in its article 262.
At times, it is not possible to technically agree on a single text response, and in such
in case the following options can be presented, among others.
In a forensic school formed by several accounting experts, one of the members does not agree with the text.
of none of the answers.
b) In an expert panel made up of several accounting experts, one of the members does not agree with the text.
from some of the answers.
c) In an expert school formed by several accounting experts, several or all of the party experts do not
none of the answers match the official accounting expert.
d) In an expert school formed by several expert accountants, several or all party experts do not
They agree on some of the responses with the official accounting expert.
In an expert school formed by the official accounting expert and a party expert, the latter does not agree
with the wording of the official expert.
f) In an expert panel formed by the official contador expert and a party expert, the latter does not agree.
with the drafting of the response to a point, with the official expert.
Similarly, the discrepancies regarding each of the responses may be due to:
a) To not agree with the scope given to the survey.
b) Not agreeing with the way the review of the documentation and records was handled.
c) To disagree with the conclusion that was reached.
d) Not agreeing with the way the conclusion was written.
e) Consider the response incomplete for not agreeing in general terms.
It may also happen that one or several experts agree with the text of the response to each
one of the points, but not with the previous clarifications that serve as an introduction, if any
These are in the expert report.
The solution alternatives that are presented when discrepancies exist between opinions of the
the following are expert accountants:
a) The official accountant prepares the report and the expert witnesses who do not agree with it.
they add their dissent in a specially identified paragraph. This paragraph could be located at
continuation of the objected response or at the end of the report.
b) The official accounting expert prepares the report and the party experts who do not agree on any
participants respond to the report in cases where they agree and leave a record that
They will present a separate report in the case of dissenting responses.
c) The official accounting expert prepares the report and the party experts who do not agree take note.
that they present a separate report.
That certificate will be included in the report itself if possible, or it will be recorded in a separate minutes.
according to the circumstances.
In case a), it is important to consider the extent of the divergence between the opinion of the expert accountant.
official and that of the expert or experts for the parties. In this latter sense, it may happen:
 a) The expert of the party generally agrees, but believes that some element can be added.
additional explanatory.
The expert witness for the party generally agrees, but seeks to add another almost complete response with
another approach.

c) The expert witness states that he has no problem with the text of the response but wants to add a
complement that notably differs or contradicts it.
d) The expert for one party does not agree with the text of the response.
Without prejudice to the existence of personal opinions on the subject, we understand that, when it
Presenting situation a), we would be facing the possibility of including an expert's statement from the party.
it was said earlier, following the response or at the end of the report.
In the rest of the points, it is understood that it is reasonable for the party's expert to present their report, total
the partial, separately, since the discrepancies are manifestly significant, and include them in the same
The report from the official expert would hinder the magistrate receiving it from understanding it.

8. THE EXPERT REPORT

8.1. Characteristics. Making. Background

As of now, there are no known systematized models of expert reports that can be
reproduced. However, daily practice has led to these reports acquiring a certain range of
homogeneity, both in terms of its content and its form.
We must mention here one of the first works on the subject. It is Report No. 1 'Area of Work'
"Special" by the Argentine Federation of Professional Councils in Economic Sciences, called
Basic Guidelines for Judicial Action(5)While this work is not exclusively focused on the
Reports in the criminal jurisdiction are important, as they have a very similar composition.
It presents a sequence composed of:
Title
•Introductory paragraph (with the details of the case and the intervening experts)
Details of the proceedings carried out
•Specific content (response to each of the requirements made in the expert questionnaire)
Final paragraph (indication of the copies and attachments that are included and requests being made)
Additional paragraph (could be applied to the incorporation of clarifications from the party experts)
Signature of the expert accountant

A presentation scheme that is widely used today includes:

•General data sector. Requester's data, identification of the cause, experts in charge and title
of the report (final, partial, etc.).
•Expert questionnaire. The text requested by the judge is reproduced in full. This
It often becomes of greater interest even when it is about an event that has already been discussed previously.
This is the case of the questionnaires that are formed throughout the proceedings from multiple
additions and modifications, without a final organized text existing.
•Preliminary clarifications before the report. This section includes the limitations that arose during the course.
from the task, the assessment of the general quality of the available elements, the difficulties
confrontations, the cause of delays incurred and any other issue deemed of interest for
understand the content of the report that is presented.
This information can also be included when responding to each of the points of
expert questionnaire instead of placing them in the paragraph of the preliminary clarifications to the report. Without
 embargo, when they are applicable to all the points included in that questionnaire, seems
more reasonable to present them only once, within this paragraph, avoiding a repeated repetition of
throughout the report.
•Responses to the expert questionnaire. In this case, the answers are included one by one, the data
the opinions requested in the questionnaire.
Report date.
Signature of the expert accountant, identifying the same.

8.2. Megacauses or causes with mega activity

8.2.1. General aspects

A designation that has been used in recent years with the purpose of identifying a certain type of
Judicial investigations are the 'mega cases'. They are not a new type of judicial proceedings, but they are
currently more frequent than in the past.
There is no precise definition that clearly identifies megacausas. However, it does not...
There is no doubt that there are some characteristic terms, which sometimes appear in form
individual and many others jointly are indicators of the presence of a mega-cause.
Among these terms may be included, for example, the number of appointed expert witnesses, the number of
questions included in the expert questionnaire, volume of the documentation that accompanies the case, possible
extension period of the expert report, number of bodies in the case, technical complexity of the subject, values
monetary amounts involved, number of people involved in the investigated facts, among others.
The so-called megacases are usually related to crimes committed in the
during the construction of public works, the development of financial activities by parts of
entities in that sector or in cases where relevant public officials are involved,
what gives them a significant social diffusion.
While in all cases it is necessary for the expert activity to be preceded by an adequate
judicial investigation, when it comes to megacases, this is essential if one intends to obtain a
expert quality report.

8.2.2. Participation of experts

In some cases, the judges consider it appropriate to appoint more than one official accounting expert.
In order to address the appraisal of the megacases, usually due to the complexity that they entail.
they present themselves.

There being no general procedural norms, nor specifications within the Regulation of
Body of Official Accounting Experts for the joint work of several official experts, each must
perform your task as if it were an individual expert performance, and you must assume the responsibilities
professionals and personal in that same sense.
The presence of more than one expert in charge of the same case can lead to a greater share of
objectivity, or at least, to reduce the risk of subjectivity or individual biases in the preparation of
expert report.
Regardless of the work of the appointed experts, both official and private, the latter
they usually resort to the help of third parties as assistants. This is because the workload that
requires professional action in the case of mega-cases usually exceeds the possibility of
to confront it with the traditional criterion of individual work, with the proper authorization of the presiding magistrate.
8.2.3. Deadlines. Resources. Risks
Regarding the time required for the expert work, this technique does not lead to a reduction in the
same, but, in general, quite the opposite. The performance of several expert accountants simultaneously
implies that everyone must review the same documentation, repeating the same work as many times as
Experts participate. Coordination tasks that must be established must also be taken into account.
among the official experts, the exchange of technical criteria and the discussions aimed at the preparation
of the expert report. All of them are important reasons that contribute to the extension of the term
performance of the experts and the consequent delay in the conclusion of the tasks regarding the rest of the
causes.
Megacases not only require a greater amount of time dedicated to the expert function,
but also tend to be made up of a large amount of documentation. The volume of the
the cause requires, therefore, a larger storage space, a higher cost of transportation
documentation, a better organization for its control, and a greater burden, in terms
general, labor management.
These causes may also produce other inconveniences during the development of the expert activity.
One of them is related to the preparation of the expert report. The length that in some cases
Acquiring the said report requires the use of special procedures, and in certain cases segmenting in
partial expert reports and their subsequent consolidation, if necessary. For example, achieving consensus
in successive stages, as the complete reading of the report, its final discussion and subsequent signing, would be
impossible to achieve in a single session of the expert school.

9. DIFFERENCES WITH AUDIT AND OTHER PROFESSIONAL WORKS

While elements and tools that are common to auditing activities are presented
accounting and expert matters under the jurisdiction of certified public accountants, there are certain points where the
Comparison between accounting auditing and forensic accounting finds its main differences.

9.1. Differences regarding the applicable rules

The auditor's work is parametric and/or protocolized when it comes to the most common type and
audited financial statements, that is, the audit conducted on the financial statements of a company or organization.
Currently, Argentina has Technical Resolution No. 7 issued by the Federation.
Argentina's Professional Councils in Economic Sciences. It outlines the fundamental steps.
What must an auditor consider during the course of their professional task in order to form an opinion?
which will then be reflected in the final report.
The work of the forensic accountant is not regulated by any accounting standard that identifies the
minimum tasks to be performed in each case, nor the way in which to evaluate the actions to be taken for each
situation that arises. The cases in which reference is made to the work of the expert aim to
state issues of a general nature. This occurs in article 261 of the CPP which states that 'Both the judge
as the experts will seek to ensure that the things to be examined are preserved as much as possible, so that the
expertise may be repeated.
A similar thing happens when in article 262 of the CPP it states that 'The experts will carry out their work together.'
exam...
expert report.
While certain doctrine has expressed opinions about whether expert reports could be considered as
special reports and be assimilated to what is included in the text of RT No. 7, in our understanding such
the deduction is not accurate, especially because of everything that is demonstrated below.

9.2. Differences regarding the pursued objective

 The audits of financial statements aim to prove with a certain degree of probability
what the company included in a financial statement is in accordance with what accounting standards foresee
active for the measurement and exposure in such reports in those territorial jurisdictions and according to
to the genesis of the main activity of the entity.
Other audits, such as those aimed at testing internal control, management audits, and those that intend to
locate possible frauds or those known as Due Diligence, have their own objectives as well,
related to each substantial element of each topic.
In contrast, the accounting expert reports aim to answer the questions raised in a
questionnaire prepared especially for the opportunity of each particular case, for the purpose of
to help clarify the procedural truth of the facts under analysis.
As can be seen, in audits the issue to be resolved is implicit in the type of audit, and it
always develop on the same theme applied to different entities or circumstances. There are
common procedures that are at most adapted to the size of the entity, the complexity of its structure and/or
to the associated risks.
On the other hand, in accounting appraisals, the questions are formulated for each individual situation. Thus
However, expert reports derived from cases where the intention is to prove similar crimes can...
understand absolutely different expert questionnaires, which in turn will also involve a task
different on the part of the expert accountant.

In summary, while in audits it is known what must be done, it only needs to be adapted.
In every circumstance, in expert work, a new and different situation arises in each case.
judicial that requires an expert report.

9.3. Difference regarding the comparison sensor

In the case of the audit, we are faced with a single comparison element that serves as a reason.
of the contrast to be made. We talk about the Accounting Standards; those of professional origin and those that
Additively, require the Commercial Code, the State, and/or the Control Organizations.
In the case of accounting expertise, there is not a single sensor for all cases, but multiple sensors.
possible according to the fact to be analyzed (laws, decrees, resolutions of public and private organizations,
common practices in the market, legal backgrounds, different potentially applicable parameters,
and other sources of confrontation and comparison).

9.4. Differences regarding the content of the document issued

The audit issues a report that contains a series of data that facilitate its understanding by
part of third parties interested in the financial situation of the entity, and also an audit report that
It contains the auditor's opinion, which is referred to as a 'report' as we have already stated.
The expertise, on the contrary, culminates with the issuance of the so-called 'expert report', which is based on
specific answers to specific questions posed by the presiding judge, whether it be the Judge
the Fiscal.
In many cases, expert reports cover the straightforward presentation of the data that arises from
the review carried out, ordered, organized, compared, and presented in such a way that they provide answers
to the concern of the judge who requests the expert opinion and guides him on his path towards the legal definition of
theme.
That is, while accounting audit reports always contain an opinion, (clean, with
reservations, or even with abstention), expert reports may contain essential data to form the
opinion of the court, which does not imply a professional opinion in the terms of a technical judgment.

9.5. Differences regarding the possibility of planning

 In the case of accounting audits, planning the task to be performed is a mandatory condition.
for the professional, in accordance with the regulations governing their activity in our country (Technical Resolution
No. 7 of the FACPCE). This planning requires thorough knowledge of the entity, even though they may
to employ, in general terms, standardized procedures for entities that possess characteristics
common, adapting the specific elements for this purpose.
In the expert process, however, each case presents a different issue in general.
part of dissimilar questionnaires and attached material to examine also disparate, and is limited to the elements
that are part of what the instruction must gather. Therefore, there are no possibilities of a
prior planning, but rather concurrent, once a sufficient understanding has been reached of the
integrity of the case, of hermeneutics, of the expert questionnaire and of the documentation provided or
susceptible of requesting.
In practical terms, explicit planning processes are not required by the regulations.
usually a general organization of work, which aims to guide the expert in their activity
and that depends on the system that the professional uses when undertaking the expert activity, and on the
particular characteristics of the case, for example, that it is a megacase. Furthermore, it itself
it can or cannot be made explicit or formalized, unlike in the case of the audit where it must be stated
development of planning in the professional's working papers.

9.6. Differences regarding professional secrecy

The accounting audit can be shared with other professionals, and technical consultations can be conducted.
other professionals mentioning the situation and general tasks can be assigned to other professionals, without
that it implies delegation, maintaining the responsibilities 'in vigilando' and of the selection 'in
choosing
In the case of the audit, the legal standard to be met is the one that enshrines professional secrecy. However,
this rule is not violated simply by sharing the auditor's work or expanding the group of
employees who participate in the multiple audit tasks, which results in teamwork, of
it is necessary.
Forensic expertise requires work within the framework of absolute confidentiality imposed by legislation.
procedural, and the nature of criminal jurisdiction, prior to the legal oath. It is important to remember here that the experts
official auditors take an oath when assuming their respective positions as government officials
Judicial Power of the Nation. The knowledge of matters related to expert evidence is reserved.
to the expert and to the party experts in the case of the participation of the latter. Outside of them and
except for the authorization that the judiciary may establish for the presence of lawyers or defendants, the expert
he is obligated to perform his task personally and cannot delegate it.
While there are cases where due to the magnitude of the work or due to the obligation imposed by the authority
applicant, the expert opinion requires more than one expert for the same case, those who intervene are always
experts appointed by the judge, and they must respect and comply with the same limitations as if they were doing it formally
individual.

9.7. Differences in professional equipment

The audit is carried out individually and personally, or, as the case may be, through the work of
multiple professionals who interact and share mutual knowledge about the entity. The auditors
they belong to an accounting firm. In both cases, there will be a single audit report.
The expertise is developed based on the work of a single professional. The exceptions are
situations where a magistrate requires the presence of more than one official expert for the same activity
expert
The presence of party experts, while generating a group activity (art. 262CPP), does not invalidate the
individuality of each of the participants, who can even present expert reports for
separated according to the same article recently cited and as described in previous paragraphs.
9.8. Difference in terms of independence of judgment
Audits explicitly require compliance with the basic requirement of independence
criterion on the part of the accounting professional. This is explicitly established in the Resolution
Technique No. 7 mentioned above.
In accounting expert reports, the same condition could also be derived from the text of Article 256.
from the CPP, where it refers to the circumstances in which disqualification or recusal would apply
of the expert.
However, it is common to see situations where they act as party experts, integrated
to the expert school, professionals who have ties to those involved in the case, as has already been stated
previously, even if we do not necessarily share those doctrinal criteria.
Regarding the issue of independence of judgment, there are also differences in what
it happens in case of not meeting such a requirement.
While, when it comes to an audit, the professional assumes the risk of being sanctioned for the
Ethics tribunal of the profession, without it directly leading to the invalidity of the information that was
audited or the professional report issued, in the case of expertise the professional has the obligation to
to excuse oneself and the parties the possibility of challenging it, thus having to abandon the work
expert report, or it may eventually be challenged the report submitted.

9.9. Difference regarding judicial intervention

In the case of an accounting audit, the work is the responsibility of the professional or the firm.
professionals who were hired for this purpose. This is implemented through a service contract.
professionals that specifically delineate the scope of the entrusted professional work.
In the case of accounting expert reports, article 260 of the CPP states that the expert report will be directed by the Judge,
with the magistrate even being able to attend the instruction operations that he coordinates and directs.

9.10. Difference in the assignment of the task

In the case of audits, the professional is hired by a natural or legal person, private or
public, which assigns it a task that allows the entity to have the information it needs.
The professional can accept or decline the offered work, and can also set conditions for it.
realization and determine its cost.
In the case of judicial expert reports, Article 258 of the CPP establishes that 'The judge will appoint ex officio a'
expert...
The expert receives a case through an assignment system, usually by some method of
lottery, and is obliged to accept it and faithfully perform their duty (art. 257CPP). The only way to
to excuse oneself from the work is through a process of excusal as outlined in art. 256 of the CPP,
but for that, the factual circumstances provided for the case of the recusal of judges must be present.

9.11. Difference regarding the subjects involved

In the auditing of financial statements, the theme is of similar characteristics for all
cases. The financial statements of the entity to be analyzed are always present, and always the
the work will consist of verifying the reasonable compliance with accounting standards, which are basically
similar for most organizations and public dissemination, especially through RT of
the FACPCE, of the standards of the jurisdictional Professional Councils, and the requirements established by
commercial and corporate legislation.
 The specific issues provided for in the accounting standards to be used in certain types of
companies or entities do not imply a thematic change but adaptations to their own peculiarities
characteristics of each entity.
On the contrary, accounting expert opinions address multiple topics related to accounting standards,
tax, corporate, labor, exchange, financial and any other that may be present
related to the determination of economic or financial facts likely to constitute evidence
according to the opinion of judges and prosecutors.

9.12. Difference in terms of the techniques used

In the case of the accounting audit, they are specifically provided for in the professional standards.
and they are commonly and generally used in a practical way, the tests carried out based on techniques
show them.
Meanwhile, in accounting expert processes, it is very unlikely that they will be carried out through
the analysis of samples, and in general, the entirety of the
elements provided for your comparison.
CHAPTER VII

EXPERT WITNESS TESTIMONY IN THE ORAL TRIAL

Héctor Chyrikins - Oscar Fernández

1. TYPES OF PROCESS SYSTEMS

1.1. The investigation of the facts

The actions of human beings, acting individually or collectively, can cause harm.
of individual interests of individuals, general interests of a certain group within the community or of the State itself.

The latter recognizes a set of goods, whether material or not, to those whom it decides to legally protect.
When legally protected rights are affected by public action criminal norms, the requirement is the
presence of the State that, holding power through previously established procedures,
resolve the controversy.
It is well known that criminal prosecution is monopolized by the State.
it exercises this power applying dissuasive forms of certain behaviors, among which is included
the prescription of punishments.
In a state like the one that governs our country, which has adopted the republican form of government, the
power is divided, and the portion of its power to which we are referring in what we are detailing is exercised through
of the judges who are the state officials responsible for interpreting judicially, and ultimately,
the norms that the law prescribes.
The criminal procedural systems establish the rules that must be considered for judges.
they may arrive at issuing a fair judgment. In order for judges to be in a position to do so, there are
various ways to organize the criminal procedural system.
1.2. Criminal procedural systems. Classification
They are classified into:

a) Inquisitorial system
b) Mixed system
c) Accusatory system

1.2.1. Inquisitorial system

It is a system based on a concentrated way of exercising criminal power and prosecution.
public, organizing the procedures around the Investigating Judge, who can carry out his task
with only some controls by the stakeholders, and therefore with broad capacity for action
personal.
The powers of the Investigating Judge in the inquisitorial model include those of initiating the proceedings with the
investigations and give them the scope deemed necessary, stop and interrogate people, require all the
tests of their interest and finally sentence, condemning if they so decide. It does not matter in this case if they
it deals with written or oral models, since both could acquire the inquisitive profile according to their
organization.
The Investigating Judge therefore takes on roles related to the prosecution of the crime, or
of the presumed criminal, along which he may dissipate part of his impartiality by being intimately
involved in the research process.
In the inquisitorial system, the Public Prosecutor's Office has low or no level of intervention, as to
the possibility of influencing the actions of the Judge.

1.2.2. Mixed system

In the search to mitigate inquisitorial systems, mixed versions or systems emerged.
reformed inquisitorial, an example of which was the Code of Criminal Procedure that governed
the Argentine federal procedure until 1992, which provided for a stage of instruction or summary to
the position of an Instruction Judge, purely inquisitorial, and a plenary or trial presided over by a sentencing Judge,
with some accusatory traits.
The current Criminal Procedure Code, sanctioned by theLaw 23.984 of 21/8/1991, sets a trend in
position of the accusatory system. It can be seen that in this case, the Prosecutor has more influence than in the
previous rules, although not having exclusive ownership of the public prosecution. Judges
they retain part of the powers.
The feature of mixed is not given by each stage being of a different category, but rather that within each
one of them may have ingredients from both as is the case today with the Procedural Code
Penalty established by law 23.584.
It is said that the current system is mixed, among other things, because although it is established in the articles
5°, 65, 188, 195 of the CPP that the holder of the action is the Prosecutor, during the preliminary investigation the Instruction Judge
holds great power, as it can conduct the investigation without the intervention of the Prosecutor, even in response to a request
dismissive of the Prosecutor, how to delegate it to him, reassume it and eventually delegate it again, can
summon the defendant, interrogate him, prosecute him, and even in some cases, elevate to trial without that being the
opinion of the Public Prosecutor's Office, in addition to the fact that during the investigation the defense is also limited
intervention.
In summary, the procedure established by the Code of Criminal Procedure allows for the criminal process to have a
accusatory sense, but still limited, given the breadth of the decision-making margin that remains in charge
of the Investigating Judge. Its main value lies in the progress it has made compared to the previous one.
fully inquisitorial system, and the possibility it generates to continue advancing on the path that allows
to reach a fully accusatory system.
1.2.3. Accusatory system
Finally, we refer to accusatory systems, where the prosecutorial function is clearly defined.
differentiated from decision-making. The fundamental objective of an accusatory system is to achieve
the greatest possible impartiality as a characteristic of the criminal process.

In this system, each part has a specific function and is under the control of the others.
The Public Prosecutor's Office appears as the body responsible for prosecuting behaviors that
they damage legal goods. That Public Prosecutor's Office is specialized in carrying out a task
legally well-defined and is organized to fulfill it.
In this system, the criminal trial has been compared to the civil trial. The one who will decide remains aloof from the
investigation and it is the parties who must present to the Judge all the evidence that convinces him and
allow to reach a conclusion.
In that case, the Public Prosecutor's Office is the main figure, as it turns out to be
The holder of the action is responsible for determining which cases they will take to court.
carry out the relevant investigations and accuse accordingly.
This distribution of roles turns the Judge into an authority for monitoring compliance with guarantees, such that
In this way, the Prosecutor gathers the evidence and the Judge assesses it when bringing the case to trial, after listening first.
to the defender. Then, this scheme is repeated in the trial stage, where both parties—prosecution and
defense—in equal conditions they present evidence and argue about it, so that the Court can
pronounce sentence.

1.3. Notion of oral trial in the criminal process

The system based on orality has some characteristics that are currently considered very
beneficial for its implementation, among them we can mention:
Advertising
b) Immediacy
c) Continuity

Advertising
Talking about advertising refers to circumstances in which the public participates. The free access of
people to participate or intervene in the course of events, implies the necessity for judgments to be
they develop in public places. Citizens will have the possibility, within the limits of reasonableness,
that are provided for in the legislation, to directly observe the oral debate.
The hearings are held in the presence of the public, and this allows for an increase in the level of
reliability in the possibilities of concluding by knowing the truth of the facts and defining the causes of
a fair way. Article 363 of the CPP establishes a penalty of nullity when a debate is not conducted.
oral and public, except in cases where the court believes that publicity may affect partially or totally
morality, public order or security. Likewise, Article 364 of the CPP determines that they will not have access to
the room for minors under 18 years, those convicted and prosecuted for crimes punishable by corporal punishment, the
the mad and the drunk.
The publicity of the trial allows for very important control over the way in which it
unfold the process, since it is under public scrutiny, avoiding the risks of
procedures that remain hidden in processes involving very few actors. In some cases, it
it even decides the broadcasting of the hearings.
The ruling must be known at the same hearing. It is based on the free conviction of the Judge, who, as
In all cases, act with complete freedom of judgment to assess the value of the evidence presented.
The advantage of the oral trial is that in this the Judge must back up the adopted criterion according to parameters.
reasonable that are presented in their sentence.

1.3.2. Principle of immediacy

In oral trials, the judges are present while the proceedings are presented.
will contribute to its outcome.
In the hearings, the Judge receives directly from those involved, defendants, witnesses, experts, what
Everyone has something to contribute to the knowledge of the fact. In this case, there are no intermediaries who write.
the sayings that correspond to each act.
All evidence is presented in front of the judges, and they can see and hear it without limitations. The
The judge can observe gestures, intonations, and behaviors. They may intervene by inquiring.
explanations and arguments that clear up any doubts that arise at the very moment they occur
they present.
The Judge gets involved with all his senses in the process, and this should facilitate his perception of the
evidence presented and the possibility of acquiring sufficient conviction about the truth of the facts
subjected to trial.

1.3.3. Continuity
This condition refers to the fact that the oral trial should take place in a single hearing. An act
I continue where the debate of all the evidence takes place without cuts or postponements, which contributes to the ...
Judge, keep in mind all the facts discussed, the evidence presented, and the elements.
of conviction that he will use to reach his sentence.
The passage of time is a factor that deteriorates the perception of events, producing distortions.
and oversights that can devalue the potential contribution of the evidence. Article 395 of the CPP states that it may be
to arrange the recording or the transcript, total or partial, of the debate.
In practice, it does not mean that the oral trial concludes in a single hearing, as the volume of the
tests to be presented or the complexities of the case may require the holding of multiple hearings,
although for this reason it should not lose the continuity of the same. Only causes of force majeure that
they may be sufficiently justified should allow for the suspension of the hearings.
Article 365 of the CPP states that the debate must continue during all consecutive hearings.
until its completion, although they may be suspended for a maximum of 10 days when certain conditions arise
circumstances, such as needing to resolve any incidental situation, which makes it necessary to carry out a
act outside the place of the hearing and the recess time, due to the absence of witnesses and experts
the interpreters, whose participation is essential, or due to the physical incapacity of the defendant, among others
reasons.

1.4. Background of oral trials in Argentina

In the Republic of Argentina, starting from the constitutional reform of 1994, systems have been developed
of oral and public debate within the criminal jurisdiction.

As we saw in the previous chapter when describing the Argentine penal system, there are oral courts.
that deal with the adjudication of different crimes according to their jurisdiction.
This is how they are presented:

Oral Criminal Federal Courts based in the Federal Capital (TOF)

Oral Courts in Federal Criminal Matters located in provincial jurisdictions
Oral Courts in Economic Criminal Matters (TOPE)
 Oral Criminal Courts of the Federal Capital (TOC)
These tribunals are generally identified by acronyms, in the way they were named.
in parentheses in the previous enumeration.

1.5. The process in the oral trial

Once the instruction phase is completed, if applicable, the case is elevated to be presented,
discussed and sentenced through an oral and public trial.
The meeting or meetings that take place as part of the oral and public trial are called
"audiencias", y, como ya se dijo anteriormente, a ellas deben concurrir todas las partes del juicio. En dichas
In hearings, the evidence that exists regarding the facts being judged is presented.
To start the debate, which is precisely taking place in the hearings, it is necessary that
previously, the court shall be constituted in the courtroom, in accordance with what is specified in art. 374
of the CPP and that the parties, defenders, witnesses, experts, and interpreters that should be present are present
intervene. Once he has read the tax requirement, and if applicable, the order to send to trial,
the court will declare the debate open.
The debate is led by the president of the tribunal, as prescribed by article 375 of the CPP.
At the beginning of the debate, all matters related to the proposals made will be raised and resolved.
by the parties concerning jurisdiction, nullities, joinder and separation of trials, among other matters that
they are part of Arts. 376 and 377, which deal with preliminary issues.
The statements of the accused or the accused if there are several will be presented next, for
The president can remove from the room those who do not declare, returning everyone again to
the room once the statements are concluded, in accordance with the conditions established in art.
379 of the CPP. Without prejudice to this first statement, the accused may make all the
statements that they deem appropriate, as long as they relate to their defense according to Article 380 of the CPP.

The next step is as provided from art. 382 to art. 392 of the CPP and consists of the reception of
the evidence that was collected, as well as the reading of testimonial statements, the
interrogations, the contribution of new evidence, and the reading of documents and records among other activities.
Once the stage of receiving the evidence is concluded, it moves to the final discussion provided for in the article.
393 of the CPP. This phase corresponds to the presentation of arguments by each of the parties, in accordance with
with the times and conditions imposed by the president of the court. It ends with the request to the
accused regarding whether they have anything else to declare, after which the debate is closed.
According to article 394, the secretary must prepare a record of the debate under penalty of nullity. According to
Article 395 of the CPP may also order the recording or the shorthand version, total or partial, of the debate.
Finally, and as a consequence of all that has been done, it must rule by issuing a judgment, or else
he can reopen the debate if he considers that there is a need to incorporate new evidence, what we can
observe in articles 396 and 397 of the CPP.
Below is a sketch of what a typical courtroom might look like, where
appreciates the location of each of the attendees.
 Audience
Complaint
Accused
Declarant
Fiscal
Defense
T
r
i
b
u
n
a
l
At the front, the court made up of three judges. In front of the court, an available chair where they will sit.
successively those who must declare in the debate. On one side, tables for the accused and their defenders.
On the other side, in a more or less similar way, the place of the complaint and the prosecutor's office. Lastly, behind a
small fence, the public. In this case, there are also staff from the forces inside the room.
security.
Not all courtrooms are the same, as this depends, among other things, on the usable space.
When it comes to small spaces, there is usually little room for the audience, while
the parts must be arranged in the available space. However, in all cases, there is a tendency to preserve
a design very similar to that presented in the previous sketch.
1.6. Participation of the expert accountant in the oral trial

The forensic accountant acts in criminal jurisdiction, in general, using their expertise in accounting to, to
through his technical knowledge and professional training, and through scientific procedures
forensic experts, to comply with a evidentiary process provided for in procedural legislation. We are talking about the
expert evidence, in this case, accounting.
Although the performance of the expert accountants, both official and private, occurs successively as well
In the instruction stage as well as in the debate of the oral trial, in this section we will refer to this.
last activity.

1.6.1. Environment in the oral trial

Throughout the trial, ‫ ﻣﺜﻞ‬،‫ﺟﻤﻴﻊ ﺍﻟﻤﺸﺎﺭﻛﻴﻦ ﻳﺠﺐ ﺃﻥ ﻳﺘﺒﻌﻮﺍ ﺍﻟﻘﻮﺍﻋﺪ ﺍﻟﻤﻔﺮﻭﺿﺔ ﻟﻠﻨﻘﺎﺵ‬
As we have already seen in point 1.5., therefore the expert accountant is not unaware of such circumstance and must
to know them and fulfill them.

This part of the trial is based on oral argument, therefore, the procedures that are usually followed by the accountant
they are taken to issue written reports, they must allow in this case to reach conclusions in form
oral. Since it is generally not written in the same way it is spoken, the accountant must here
getting used to a mode that has not been typical of professional accounting work. For example, in the
orality, intonation, volume of the voice, pronunciation, gestures, and other similar characteristics
they acquire an importance that they do not have when it comes to reports and written assessments.
At the same time, the court and the rest of the participants in the debate can better assess the solidity
expert's technique, through the way the professional presents each situation and responds to
questions that are posed regarding personal training levels, updates on the topics,
as well as the aspects that arise from their personal conduct, are not part of the expert work,
some of them may be questioned by the court for a better understanding of their abilities
expert techniques.
The presence of the forensic accountant in the oral trial can occur, first of all, from the
offer of evidence requests submitted by the prosecution and the other parties in accordance with the
Article 355 and deduced by the court according to article 356 of the CPP.

It can also come from the supplementary instructions ordered by the president of the court in
order under article 357 of the CPP.

To this effect, the expert will be summoned to attend on a specified date and time to participate in the
audience. As the extent of each of the statements, as well as the interventions for
Due to various reasons from each of the parties, it cannot be planned by the Court with total rigidity; it is likely
that the expert must anticipate waiting, sometimes a considerable amount of time, to appear before the court.

1.6.2. Action of the expert accountant in the debate

Article 383 of the CPP states that the president will read the substantial part of the opinion and/or report.
presented by the experts and they, when they have been summoned, will answer under oath to the
questions that are asked of them, appearing in the order they are called and for the time
that their presence is necessary. The same article stipulates that it may provide for the experts to be present
certain acts of the debate and that they may also be cited again, as long as their reports
they will turn out to be unclear or insufficient and, if possible, will carry out the expert operations in the same.
audience.
It is worth saying that the accountant must be prepared to reproduce, if applicable and possible, some
or all the expert tasks that he/she would have carried out to prepare and present his/her report at the stage
of instruction. It is important to consider in this case that a considerable amount of time usually passes between the
presentation of the report written during the instruction and the moment he is called to participate in the
oral debate. For this reason, it is always appropriate to have the supporting elements that were used to
reach the conclusion presented in its time, to avoid oversights that jeopardize understanding
about some aspect of expert responses.
In this segment of the expert activity, the strength and importance of the working papers are noted.
made by the expert accountant, as well as its logical and methodological concatenation with the
technical conclusions included in the respective reports and/or expert opinions.
According to Article 389 of the CPP, both the judges of the court, as well as the prosecutor, the other parties, and the
defenders, the latter with the president's approval, will be able to ask questions to the experts. But there must be
Bear in mind that the President will reject any question he considers inadmissible.
The answers from the expert accountant must be directed to the president, avoiding dialogue with anyone else.
the questions have been asked. It is interesting to consider here that each of the parties will surely try
to ensure that the presentation of the forensic accountant benefits him or at least harms him the least possible.
In such cases, there may be conditions of extreme harshness towards the accounting expert. In these cases, the
must complain to the president about such acts and request that they cease immediately. The
Attributions to ask questions in no way imply the possibility of mistreating the expert, or treating
to induce or coerce it to obtain a favorable response.
The questions that are generally asked of the expert may refer to:
a) The expert report timely presented during the investigation stage;
b) Other topics not included in the expert questionnaire that were answered at the time but that
correspond to the duties of the public accountant, and that can be answered without performing
indispensable specific procedures;
c) The same case as b), but on a topic of greater complexity that requires the completion of
technical procedures for evacuation;
d) Topics that do not correspond to the responsibilities of the public accountant.

In case a) the questions should be answered, and/or clarifications should be made, based on the
content of the expert report submitted.
In case b) there is usually no issue with the expert accountant answering the questions posed to them, since
What can be done based on their professional knowledge. For example, if asked whether a society
Commercial must maintain accounting records.
In case c), however, one should refrain from responding considering that the case involves the execution
of a new expert study. For example, this happens if they are consulted about the way the company
he brought specific books that were not analyzed during the previous assessment, or if asked how much
the accused should have paid a certain tax whose calculation was not carried out
previously. In this case, the court should establish a new questionnaire for the accounting expert.
I will respond after carrying out the corresponding expert evaluation.

In case d) it should not be answered under any circumstances. It is worth noting that the only reason for
that the expert is testifying before the court consists of having specific knowledge about
a particular subject, in our case, accounting. Therefore, responding to any other type of
A problematic issue, unrelated to the responsibilities of the public accountant, would be meaningless. However, it must
considering the case in which it is doubtful, especially for the court, whether it is a matter of jurisdiction
professional of the accountant or not. For example, when clarification is requested on topics that are
included in the Commercial Companies Act regarding the treatment of a capital increase;
while the professional might say that it is a legal issue, the court might argue that it is a
matter of accounting implications and must be known by the accountant. The problem in this case could
It being the case that if there is no response, the court considers that there is reluctance on the part of the accounting expert and this results in.
in a charge of false testimony. When these controversies arise, and as long as the expert is
find yourself in a position to provide an opinion, and consider that it will unblock the situation, you can
to do it, clarifying the limitations attributable to the fact that it is a topic based on
knowledge of another scientific discipline.
It should be remembered that the CPP establishes in its art. 299, second paragraph, that the questions must
to express oneself clearly and precisely, never in a misleading or suggestive manner.
 In all cases, it must be taken into account that Article 370 of the CPP empowers the president to
Take disciplinary measures based on your police power and with the purpose of maintaining discipline.
in the hearing.
Although the expert should adhere to issuing reports exclusively based on the elements that
were timely analyzed and based on the conclusions reached in a timely manner, or taking
Given your technical knowledge on the subject, it could happen that your statements may not hold true.
sustainable and incurs false testimony as provided in article 275 of the Penal Code. In this regard, article 390
The CPP determines that it should proceed according to the provisions of Article 371 of that Code. This
it implies that a record will be drawn up and the immediate arrest of the presumed culprit will take place, who will be
made available to the competent Judge to whom it will be sent along with the copies or records
necessary for the research.

1.7. Court of Cassation and Supreme Court of Justice of the Nation

The possible subsequent stages of appeal to the judgment produced in an oral trial, whether in the
Criminal Cassation Chambers, or before the Supreme Court of Justice of the Nation, discuss issues
related to the legal conditions under which the prior instances were carried out.
Therefore, in general, the expansion of the evidence provided would not be admissible under such circumstances.
previousness nor the presentation of new testimonies.
Thus, once the oral and public trial is concluded, the role of the expert accountant can be considered
as definitively concluded from a procedural point of view, although reports could be made available.
supplementary and/or clarifications, or determinations of the precise monetary 'quantum' of the facts that
arise from the sentence.
SECOND PART

CHAPTER VIII

THE PUBLIC ACCOUNTANT AS A BUSINESS ADVISOR IN CRISIS

Enrique H. Kiperman

1. INTRODUCTION
Among the professional responsibilities of a Public Accountant, there is the duty to provide professional advice.
to the organizations(1).
Companies in crisis are a daily reality in our country as well as in the rest of the
world.
The causes of these crises are diverse, and they can be basically classified into two: a) exogenous or
external: that is, those that come from the company's environment, and over which little can be done
to prevent them from happening and b) endogenous or internal: which on the contrary are those that are linked with
the variables of the company that can (and should) be modified as appropriate.
In general, all these causes have consequences in the organization that can generate effects on
the judicial sphere, such as:
 Request for precautionary measures for intervention in the company, for example, as a consequence of
complaint from a member of the family business
Embargo requests
Commercial and tax executions
Judicial claims of workers
Bankruptcy filings
Presentations in preventive competition, etc.
In all of these cases, beyond the legal advice coming from a legal professional, the
Professional in Economic Sciences: Public Accountant, must possess the knowledge and tools
to be able to advise and, where appropriate, based on the circumstances, take on more leading roles
crisis situations together with the organization's executives.
This chapter will schematically include the knowledge related to the
tools available to the Public Accountant that allow them to detect, evaluate, and propose alternatives for
solution to the crises of companies and, basically, to know the steps and procedures that
they necessarily link that reality with the judicial sphere, as well as allowing them to understand the inseparable
the existing interrelationship between the business and legal fields.

2. ISSUES OF THE COMPANY IN CRISIS

The term 'crisis' is used in multiple disciplines and with different meanings. In management
this situation also occurs, so it is necessary to make some preliminary reflections to describe
conceptually the meaning of a company in crisis that will later be used in this chapter.
Thus we can say that the company in crisis is one that is undergoing a process of change.
caused by any circumstance that compromises their permanence or subsistence.
In this sense, we must differentiate it from the various crisis situations that may arise in
the company as an opportunity for change; therefore, we must not confuse any "crisis situation"
in the company
organization.
The concept that opposes it is that of 'company in balance' whose own dynamism allows it to avoid
the state of crisis with the indicated meaning.

3. ANALYSIS OF THE CAUSATIVE FACTORS OF BUSINESS CRISES

In principle, we can classify the causes of crises into: a) exogenous or external causes and b)
endogenous or internal causes.
The first ones are those that come from the business environment and over which the company can do little.
to prevent them from happening.
Endogenous causes are precisely those that are linked to the variables of the company that can
(and should) be modified as appropriate.
By way of example, we can cite the following external causes:
a) New realities of the global economy
b) Technological changes in general
c) Information Revolution
d) Cultural changes
e) Changes in paradigms
 f) Unforeseeable or fortuitous phenomena
g) National Economic Policy
h) Action of the competition
On their part, among the endogenous causes, the following can be mentioned:

a) Company management issues

b) Inadequate management
c) Inadequate financing of assets (financial structure)
Technological backwardness

e) Mismatched processes in production and marketing

f) Human resources policy
In reality, crisis situations arise as a result of the combination of several of the
causes stated in the preceding sections, making it impossible to assign any
one-to-one correspondence between one of them and the company in crisis. To understand the reality of the
The company needs to be studied considering its natural complexity.
Lastly, it is worth noting that certain macroeconomic conditions have arisen in our environment.
national factors that accelerate the deepening and externalization of the survival crises of many
companies; we are referring to structural changes such as monetary instability,
elimination of customs barriers, greater pressure on tax and social security collection, privatization
of the public service provider companies, etc., which, without judging the correctness or not of such
measures, the truth is that they served to place Argentine businessmen in an unknown scenario
for them.
Those who do not understand the radicality and extent of change or who do not find a way to
quickly adapt to their consequences run the serious risk of being left without possibilities of
recovery.

4. PROCESS OF GESTATION OF THE CRISIS

We have already stated that the natural and desired state for any organization is that of 'balance'.
company in balance assumes the existence of competitive conditions that allow for obtaining a
credit for their management through the placement of the goods or services they produce at an exchange price
superior to the cost incurred in its production.
Upon the loss of competitiveness caused by any reason, which is manifested in the inability to
Maintaining that economic balance results in an immediate loss of profitability.
The persistence of such a situation over time deepens the deficit, and the losses reduce.
the available working capital; these circumstances lead the entrepreneur to have to decide between the
following alternatives: reduce the volume of activity according to available working capital or cover the
deficit with external financing. Any of the options you choose will result in a
increase in deficit: the first due to the greater impact of fixed costs and the second due to the effect
of the financial cost.
The successive economic cycles that occur over time exacerbate the losses, so that
The company will necessarily face serious difficulties in financing its operations. Without
Embargo, it is feasible to encounter financial difficulties despite having a financially active situation.
rentable: this occurs when the failure is in the financing structure of the company's asset.
In the long run, this process leads to the state of default, which occurs when the company
is unable to regularly meet current commitments, either due to not having
the sufficient funds or due to not being able to obtain loans under normal conditions. For its part,
insolvency, as the final stage, can be characterized as the financial situation in which
The company's liabilities exceed its assets.
 It should be noted that in certain cases, insolvency is accessed before the state of cessation of payments.
due to the existence of liabilities that may not be collectible in the short term.

5. STAGES OF THE COMPANY IN DIFFICULTIES

The sequence of the indicated states is presented schematically in the attached chart I, which
graphically illustrate the course of the process described above.
FRAMEWORK OF THE CRISIS
Potential generating factors
Internal Factors
Product and Process Changes
Financial Structure
Human Organization
Management Environments Competitors

Loss of competitiveness

Loss of profitability

Financial Difficulties

Suspension of payments

Insolvency

The time that elapses from when the company is "in bonis" to the state of cessation of payments.
The insolvency situation is very varied, depending on the type of business involved and the countless...
particular circumstances that are specific to each company. However, it is noted that, in recent
Over the years, these processes are gaining greater speed, so preventive or cleanup action
it should not be kept waiting.

Time without a solution deteriorates all the productive factors of the company, as well as the
relationship of this with its suppliers, customers, and community; the limit of this situation is the liquidation of
the company, whether with or without bankruptcy.

Thus, the dimension of 'time' is a predominant and decisive variable in this type of situations, to the point
so we can risk the following statement: the more time passes between the onset of the loss
the competitiveness and the decision and action of sanitation and/or recovery, the lower the probability of
that the company in crisis can be "saved" for the benefit of its owners.
The correlational analysis between the different stages that a company can go through is interesting.
and the actions to be taken at each of those stages. On this matter, Herve Chapand introduces
in his work(2)the study of the functions of 'Evolution of the Company's Situation' and is showing
how, from the moment the loss of competitiveness becomes publicly noticeable, it begins to
to develop and to stimulate the pressure of the environment, defined as the defensive attitudes that arise
assuming the different economic actors linked to the company, until reaching a point that
we could conceptualize as 'rupture', from which it becomes virtually impossible to save the
company in benefit of its owners.

6. RECOVERY METHODOLOGY
In the face of the company in crisis, the definition of a methodology for the recovery action is necessary.
In this sense, one should start with the diagnosis of the company to understand its current state, the depth.
of the crisis and the causes that generate it; this vision must be comprehensive and encompassing of all aspects
that compose it.
A contingency plan will also need to be implemented to navigate the financial situation.
threat of paralysis of activities, and improve the governance of the company.
Finally, it is necessary to design a recovery strategic plan that allows for the reorganization of the variables.
from the company so that it can overcome the crisis and project its permanence in the future.
The first two of the aforementioned actions unfold concurrently and may include
measures that will later be conducive and useful for the recovery phase3.

6.1. Company Diagnosis

The first thing we must address in the face of a crisis situation is to inform ourselves about the causes of the
same as its intensity and the conflicts that emerge from it.
In this analysis, which must be dynamic and interactive, we need to detect what the strengths are.
and weaknesses of the company and what its opportunities and threats are for future development.
The most relevant topics that should be the subject of survey and critical analysis are:
General evolution of the company
Organizational structure. Management style
Marketing
Production and costs
Economic-financial situation
Communication systems
Human resources. Organizational culture
•Situation of the environment. Competitors

The key to the success of this phase lies in a correct selection of the aspects to be highlighted.
participatory approach with which it is addressed, and from the correct interpretation that the professional makes of the
data that I obtain.

6.2. Design of an emergency plan

In a crisis situation, it is necessary to implement a set of emergency measures that allow
overcome the situation, which generally manifests itself in the shortage of financial resources to sustain
the operations and the aggression that creditors exert on the company's assets, to make it effective
their beliefs.
At this stage, a short-term action plan must be created that is sufficient to allow for completion.
of the diagnosis and the preparation of the strategic recovery plan.
The content of the emergency plan may be as follows:
Appointment of an emergency committee
 Extrajudicial refinancing of payable liabilities
Judicial presentation requesting preventive bankruptcy
Negotiation of special working conditions with the staff
Generation of liquidity with own and/or third-party means
Short-term management plan that enables permanence
The measures implemented at this stage must be such that they can be integrated into the plan of
recovery.

6.3. The strategic recovery plan

It is the plan that describes the necessary changes for the struggling company to reorganize its
variables and activity factors, making it viable and competitive with the environment in which it
develops, in order to ensure its permanence in the future.
The plan must refer to actions to be undertaken in each of the areas of the company's activity, and
it requires the intervention of a multidisciplinary team to drive it forward with strength, in order to overcome resistance
to the change that inevitably arises in these situations.
In this regard, we consider that this plan should be designed taking into account the characteristics
specific to the company's activity, its particularities and the causes generating its
crisis.
When we encounter a company in crisis, the most important thing is to try to stabilize the situation.
and carry out a quick diagnosis that will include all involved areas; based on that,
will develop the plan to follow.
The level of severity and extent of the difficulties will determine which tools should be applied.
each case. The science of management and its scholars provide us with a fairly wide range of
possibilities, from models of partial application, or directed towards certain aspects of the company,
up to more comprehensive and integrative models that are applied with a global criterion. In the same sense,
bankruptcy law, for its part, deals with anticipating the various institutes applicable to the company in
difficulties and/or in a state of cessation of payments.

The actions to be taken at each of the described stages are:

6.3.1. Preventive action

It corresponds to the stage of a company in equilibrium until the onset of the loss of competitiveness. The
the objective of this action is to avoid crisis situations through diagnosis and detection systems
generating and triggering factors.

6.3.2. Sanitation action

Its application is relevant from the preventive action and as long as the loss of profitability has not occurred.
caused financial difficulties. This action is aimed at resolving crisis situations that can occur.
to present in the company taking the necessary measures for it, in order to recover the
competitiveness and profitability losses.

6.3.3. Recovery action

It corresponds to the stage in which the company begins to have its survival compromised and is applicable.
to the breaking point. It is the action that tends to produce the necessary changes to reorganize the
variables and activity factors, with intervention in all areas of the company, to turn it
again viable and thus ensure its survival.

6.3.4. Liquidation action

It applies when it is not possible to rescue the company in the hands of the entrepreneur or their
owners. This action aims to eliminate the company by trying to reintegrate its elements into
the economic activity with the least possible damage.
The strategic recovery plan must include a set of actions that, combined in their
application allows achieving the set objectives. To do this, one must choose among the possible actions
available, those that lead to the desired end, and implement them in combination with
decision at the right moment.

7. TOOLS FOR DESIGNING A STRATEGIC RECOVERY PLAN

There is a large number of possible actions whose description would require space for their
presentation and an attention to the readers that exceeds the objective of this work, however,
we find it appropriate to outline some of them by presenting them schematically in Table II and
pointing out certain characteristics that result from the following classifications.
Thus, we can distinguish actions in partial or integral application models, depending on whether they are directed towards
certain aspects of the company, or that concern it globally.
On their part, there may be judicial or extrajudicial actions, depending on whether they intervene or not.
jurisdictionally the Judiciary.
We can also classify actions as external and internal, depending on whether their application requires it or not.
the participation of external media or factors in crisis.
Finally, we want to warn that for success it is not enough to have knowledge and systematic application.
of the available tools, since there are no infallible magic recipes that we can recommend.
Therefore, it is essential to remember that it is necessary to undertake the recovery starting from a diagnosis that
describe as faithfully as possible the reality; and lead the recovery process with the leadership of a
external professional to the company in crisis who, in addition to specific knowledge, has a
a firm, creative, and negotiable personality to design, with the support of a multidisciplinary team,
carry out the action of change.

8. STRATEGIC CHOICE OF THE BANKRUPTCY REMEDY

8.1. Introduction
The purpose of this section is to carry out an analysis regarding the way in which it can be
strategically choose the bankruptcy remedy for the different cases, taking as a starting point the
legal framework offered by theLaw 24.522(Bankruptcy and Insolvency Law in effect.
In principle, we will make a quick review of the bankruptcy institutes contained in the insolvency regime.
Argentinian and a review of the most outstanding characteristics of each of those, to then study
What are the relevant variables and elements considered when deciding on the insolvency remedy?
applicable in each specific case.
 Originating and exclusively in the conflicts between the Powers of the City and in the demands that
promote the General Audit of the City according to what is authorized by this Constitution.
2. Originally and exclusively in declarative actions against the validity of laws, decrees, and any
another general rule issued by the authorities of the City, contrary to the Constitution
National or to this Constitution. The declaration of unconstitutionality renders the norm ineffective.
unless it is a law and the Legislature ratifies it within three months of the ruling
declarative by a two-thirds majority of the members present. The ratification of the Legislature
does not alter its effects in the specific case nor prevents subsequent diffuse control of constitutionality
exercised by all judges and by the Superior Court.
3. By means of resources of unconstitutionality, in all cases that deal with the interpretation or
application of rules contained in the National Constitution or in this Constitution.
4. In cases of deprivation, denial, or unjustified delay of justice and in complaints about
denial of resource.
5. In ordinary appeal instances in cases where the City is a party, when the amount
the claimed shall be greater than that established by law.

Originally in electoral matters and political parties. A law may create an electoral tribunal in
in which case the Superior Court will act by way of appeal.
The courts of the City are grouped into two jurisdictions. The Contentious, Administrative and Tax.
composed of 15 courts and an Appeals Chamber made up of two chambers, formed by 3 judges
each one of them. On the other hand, there is the Criminal, Contraventional, and Offenses jurisdiction, made up of
31 courts and an Appeals Chamber that has 3 rooms made up of 3 judges each.
Given the cases that are addressed in this jurisdiction, it is complemented by 16 prosecutors' offices and 12 public defenders' offices.

The Contentious, Administrative, and Tax Court acts in cases where the City is a party to the
case, whether as an actor or as a defendant, and in which issues related to the
local taxes.
The Criminal, Contraventional, and Misconduct jurisdiction acts in the rest of the local litigations. These may
be consequences of the definitions of the Penal Code, the Contraventional Code, of the laws that
regulate the offenses within the City and any other relevant legislation.
The Judiciary of the City is completed with the Public Prosecutor's Office, the Public Ministry of the
Defense and the Public Guardian's Office, the latter described in Article 124 of the Constitution of the City
as Advisory for Incapacitated persons.

4. CRIMINAL LAW

4.1. Main crimes with economic causes or consequences

The role of the Public Accountant as an expert in the criminal jurisdiction involves evaluating facts.
related to a set of topics, whose origin is found in the National Penal Code.
Indeed, the Second Book of said Code details the different crimes that are considered as
cause of criminal sanctions. Some of these offenses do not usually involve the need for having
forensic accounting tasks. This involves, in this case, crimes that involve, for example, simply
personal conduct. Such is the case with crimes against life, against honor or against integrity.
sexual.
However, many other crimes have their root in the existence of some form of maneuver with
economic content. It is in such opportunities when the presence of the Public Accountant becomes very
important most of the time.
These crimes are mainly those that the Penal Code enumerates in the following numerals:
TITLE VI CRIMES AGAINST PROPERTY
 The most outstanding characteristics of the described bankruptcy institutes are as follows:

8.3.1. Affected subjects

In principle, the law admits, as provided in Article 2, the participation of all 'people of
visible existence, those of ideal existence of a private nature and those societies in which the State
National, Provincial and Municipal shall be part, whatever the percentage of participation.
However, there are exclusions arising from the insolvency law itself as well as other regimes.
special. This is the case of Financial Entities and Insurers that are not subject to bankruptcy.
preventive, resolving its state of insolvency through the bankruptcy procedure(4).
Likewise, the same bankruptcy law in its article 48 excludes individuals from the rescue (article 48).
visible as in societies where partners have unlimited personal liability; and furthermore
Small competitions are also excluded from the indicated procedure.
As a consequence of the above, whenever the course of action of an insolvent subject is analyzed and/or
in default of payment, it is important to consider the type of subject in question and, therefore, the avenues
branches that he can access.

8.3.2. State of cessation of payments versus general economic-financial difficulties

The basic budget for the opening of the contests regulated by the insolvency law is, precisely,
the state of cessation of payments. However, there are exceptions to this requirement: thus, in case of
grouping(5)It is sufficient that only one of the components of it is in default of payment.
For the extrajudicial preventive agreement, on the other hand, the holding of the competition is accepted even though the
debtors are only found in general economic or financial difficulties.

8.3.3. Continuation of the activity

The most notable feature of the preventive defense is the continuation of the debtor's activity, the
What can keep the administration of the assets under the supervision of the syndic.
In bankruptcy, the norm is the paralysis of all activity and the dispossession of the debtor;
Only in exceptional circumstances is it permissible to authorize the continuation of the exploitation, but under management.
judicial of the syndic and/or co-administrator appointed by the judge of the proceedings. With the latest reforms, also
the continuation of the activity led by worker cooperatives.

8.3.4. Legal Actions Against the Debtor

The opening of the preventive contest results in the filing before the judge of the contest of all lawsuits.
of heritage content against the bankrupt but also the prohibition of deducting new actions. The
The law also provides for the suspension of executions, until the demand has not been filed.
verification.
In bankruptcy, the jurisdiction of attraction and the suspension of proceedings also occur, starting from the moment
in which the declaration of bankruptcy becomes final.
The referred suspension also occurs in the case of the extrajudicial preventive agreement, starting from the
presentation of the agreement for its ratification, so this effect can only be achieved once it
he would have obtained the legal majorities for the approval of the agreement.
8.3.5. Course of interests
The filing for preventive bankruptcy and the declaration of bankruptcy suspend the proceedings.
of interests of all the debtor's obligations with a cause or title prior to them, except those arising from
of secured credits with pledge or mortgage, which can only be claimed against the amounts
coming from the assets affected in real security and from obligations of a labor origin. The
jurisprudence has timely interpreted that it is also appropriate to consider the course of the
monetary updates, in case they are applicable.
For obligations in foreign currency, the law stipulates conversion to national currency at the date
from the bankruptcy declaration.
The case of the extrajudicial preventive agreement is very different, in which both the interests and the
obligations in foreign currency remain intact, unless there is an express agreement between
debtor and creditors who innovate such aspects.

8.3.6. Employment contracts

It is important to mention the differences between the various institutes regarding employment contracts, as
that this plan, due to its consequences, has a significant impact at the social level. For example, the processing
The eventual approval of the extrajudicial preventive agreement has no effect on the contracts.
of work in force between the debtor and its dependents. The same can be said regarding the
preventive contest.
On its part, the liquidation bankruptcy definitively dissolves the employment contract, leaving as
consequence also definitively extinguished, the collective agreement of workers, regarding the
eventual acquirer of the bankrupt establishment.

8.3.7. Credit verification

In all bankruptcy proceedings, except in the extrajudicial preventive agreement, it is required
credit verification to be considered a concurrent creditor and be able to participate in it as such
character.
The verification process, in our understanding, is of fundamental importance, as it consists of a
procedure that blocks access to the contest of illegitimate liabilities, both in terms of their amount as
to their privileges, allowing in this way to accurately quantify the debtor's liabilities and define the nature
of the same.

8.3.8. Calculation of majorities

The required majorities differ depending on the process in question. For the approval of an agreement
judicial or extrajudicial estimate, according to theart. 45from the LCQ, an absolute majority of creditors is required
within each and every category subject to the agreement, which represent two thirds
of computable capital within each category," and the unanimity of privileged creditors with privilege
especially to those whom the proposal reached.
It is worth noting that the failure to obtain majorities brings various consequences depending on the procedure.
it takes place. In the case of the extrajudicial preventive agreement, the lack of approval hinders the homologation.
of the agreement and, therefore, it only has effect between the parties that have entered into it with the participation
direct. For its part, the failure to obtain majorities in the preventive competition derives this procedure
a bankruptcy declaration, except for the case of the subjects covered by article 48, in which
open the salvage instance (cramdown).
For the settlement in bankruptcy, the consent of all verified creditors is required.
 Finally, it is important to note that in bankruptcy, to exercise the actions of bankruptcy ineffectiveness for
knowledge of cessation of payments and the actions of third-party liability, the trustee must require
prior authorization by a simple majority of unsecured capital and declared admissible.

8.3.9. Duration of the procedures

It is important to consider the time it takes to process the procedures because this is
it relates both to the opportunity when bankruptcy obligations become enforceable, as well as to the
stages of negotiation that correspond to engage with creditors to obtain their consent
proposals.
Thus, in the case of the extrajudicial preventive agreement, the consent of the creditors is
is a prerequisite for judicial presentation, while in the preventive concurso this approval is
requires at the time of expiration of the exclusivity period, which operates approximately at ten
months following the date on which the debtor filed to request the formation of their bankruptcy.

8.3.10. Effects of the approved agreement

The bankruptcy law establishes a set of effects that result from the judicial approval of an agreement.
in the case of the preventive contest:
•Novation: in all cases, the ratified agreement implies the novation of all obligations with
origin or cause prior to the contest.
This novation does not cause the extinction of the obligations of the guarantor or of the solidary co-debtors.
•Application to all creditors: the approved agreement produces effects regarding all
creditors included in the agreement, whose credits have originated from a cause prior to the
presentation, whether or not verified at the time of the homologation.
•Supportive partners: the agreement extends to fully liable partners.
•Prescription: the actions of creditors expire two years after the presentation of the debtor.
contest, or within the natural prescription period, if it were shorter.
Article 76 of the current wording of the LCQ makes a confusing reference to the effects of the agreement.
extrajudicial settlement with judicial homologation for preventive bankruptcy cases(6) .

8.3.11. Cost of the process

The costs of bankruptcy proceedings consist of the court fee and the fees of the
intervening professionals. For these purposes, it is worth considering for the scope of National Justice, the rate
established by thelaw 23.898and for the fees, the tariff scales that arise from the law itself
Bankruptcy, namely:
a) Preventive contest: 1) Justice fee: 0.75% of the amount of all verified credits
covered in the preventive agreement, for liabilities up to $100,000,000; when it exceeds the
For the indicated amount, the applicable rate will be 0.25% on the excess, and 2) Fees: are regulated.
based on the asset, applying a scale of 1% to 4%. In cases of assets exceeding
$100,000,000 - the maximum of the scale is reduced to 1%.
b) Extrajudicial preventive agreement with judicial approval: 1) Justice fee: in our opinion it is
the same as applicable in the preventive contest, and 2) Fees: for the preventive agreement
extrajudicial there is no specific framework for the regulation of fees, but rather simply the
law makes a reference for the assumption of challenges to the agreement, in which case the emoluments
will be determined by the Judge taking into account exclusively the magnitude and nature of the
work carried out by professionals in the file.
 c) Bankruptcy: 1) Justice Fee: 1.50% calculated on the amount resulting from the asset liquidation, and
2) Fees: are regulated based on the assets generated, at a minimum of 4% of the same.
12% at most.

8.3.12. Trips abroad

The conditions regarding travel abroad are different if it concerns the preventive contest or
if we are facing a bankruptcy case. Article 25 states that in the preventive competition the debtor and, in their
In this case, the administrators and partners with unlimited liability of the bankrupt company cannot travel.
abroad if they do not notify the judge of the competition beforehand, informing him of the duration of the absence, the
which cannot exceed forty consecutive days. It also clarifies that 'In case of absence due to'
For longer periods, judicial authorization must be required.
In the case of bankruptcy, the bankrupt and their administrators cannot leave the country during the period.
informative, without prior authorization from the judge of the competition.

8.3.13. Actions for asset recomposition in bankruptcy

The bankruptcy arrangement establishes the possibility of filing actions against third parties in pursuit of
reconstruct the property of the failed one, based on certain factual and legal assumptions that specifically
establishes the law.
The basic substantial condition for this type of actions to proceed is the existence of a
bankruptcy, so in the out-of-court agreement and in the preventive bankruptcy, they cannot be initiated, nor
continue them in case the bankruptcy concludes for any original cause.
The actions we are referring to are the following:
a) Full legal ineffectiveness of the bankruptcy
b) Bankruptcy ineffectiveness due to knowledge of the cessation of payments

c) Ordinary ineffectiveness of revocable acts(arts. 961a972, Civil Code

d) Extension of the bankruptcy:
d.1) Partners with unlimited liability
d.2) Individuals acting in their own interest
d.3) Controlling entities with undue deviation from social interest

d.4.) Person with which there is an inextricable patrimonial confusion with the bankrupt
e) Responsibility of third parties
e.1. From representatives, administrators, agents, or business managers of the bankrupt
e.2. Other third parties who have participated fraudulently in acts aimed at the reduction of
active or the exaggeration of the passive

e.3. Limited liability partners, trustees, and liquidators

As is almost obvious, the previously stated actions may lead to consequences.
various for the third parties involved, for the failed one and eventually for the creditors, hence its
Timely consideration and analysis can contribute to the selection of an appropriate strategic course of action.
for overcoming the crisis. In this regard, it is necessary to evaluate the final consequences of any
restorative property action, as well as those that may occur during
the processing of the respective incidents, such as precautionary measures and others.

8.4. Variables to consider

 It is now appropriate to pause to analyze the different variables that have an impact on the decision.
What should we consider regarding the bankruptcy institute to select.
This analysis will allow us to clarify, among all the existing options, those that are possible.
to be used in the specific case at hand, and then to choose from these last ones the ones that are most
convenient. In this way, the design of the bankruptcy strategy will be concluded, which we will use as
a tool to overcome the crisis situation.

8.4.1. Who is in crisis?

This is the first question we must ask ourselves, since from its answer we deduce what are the
applicable insolvency institutes and which ones are prohibited to him. For example, if we are
analyzing the situation of a financial entity, it is appropriate to rule out the application of the remedy
estimate, as the law specifically provides for it.
It is also important to take this aspect into account if we consider that overcoming the crisis depends on
due to the cramdown, since this procedure is applicable exclusively to companies incorporated with
limited liability company type.
The same can be analyzed regarding the integration of the debtor in crisis with other people, whether they are
physical or legal entities, to determine if they make up an economic group and the possibility of filing for bankruptcy
complete grouping. A similar analysis should be carried out concerning the guarantors of a debtor.
contested.
In summary: this first approach will allow us to focus attention on those bankruptcy processes that
resulting applicable to the subject in crisis, but it must be made clear that this first aspect is not enough
to be conclusive with the institute that we must apply.

8.4.2. Objectives sought

It is advisable to be clear about what our north is. In general, crisis situations in companies
they provoke a turbulence that confuses and paralyzes. In these circumstances it is necessary to take a pause and, to
from an introspective analysis, define the direction we want to take. In this sense, we must
distinguish issues and paths as distant as, for example:
Maintain or sell the company
Make new capital contributions
Reorganize the company
Restructure the liabilities
Incorporate new partners
Maintain or change the activity
Sell the shares package
Liquidate the company
Whatever the determined objective may be, it will be necessary to have means and time, resources that are well
they can be obtained through a bankruptcy procedure.
Let us remember that the processing of a preventive contest takes approximately a year and that during
during this period, pre-insolvency obligations are not enforceable, and aggressions against are also inhibited.
heritage as a consequence of the suspension(7) of all the lawsuits regarding patrimonial content against the
contested. This time of tranquility can be used to redirect the organization and
convert it again into viable.
In many cases, where the medium-term goal is to sell the company, it is also appropriate to choose the
preventive concurso as the ideal procedure that would allow the company to reorganize and order the
passive through the credit verification procedure; this, along with the two-year statute of limitations, gives you
certainty and transparency in social heritage, calming and enticing potential
buyers.
In conclusion, we must emphasize that, in the choice of the bankruptcy strategy of a company in crisis,
It is important to keep in mind the strategic objective of the organization's leaders.

8.4.3. The viability

Another aspect to consider when choosing the course of action is the viability of
entrepreneurship. It would make no sense to talk about a preventive solution if we are not in a position
to minimally maintain the activity of the company or organization, since if this were not possible,
it would be advisable to opt for filing for personal bankruptcy.
For these purposes, viability takes on various dimensions. Thus we have legal feasibility, which implies
the non-existence of legal impediments that inhibit the continuation of the activity and/or the company.
Technical viability also matters, which is manifested by the potential to continue producing the
goods and services that the company sells, as well as managing its resources.
Financial viability is expressed through the sufficiency of financial resources to sustain the
corresponding activity; we must bear in mind that, for these purposes, we must consider as
only the funds required to settle payable obligations are necessary. For example, in
In a preventive competition, the funds needed to cancel the...
pre-insolvency liabilities, except for labor and other specially privileged ones, as they would not become
enforceable until the agreement is ratified.
Factual viability refers to the existence of factual conditions that allow for compliance with the
requirements of certain procedures, e.g.: if we think about the conversion of bankruptcy into insolvency
Before making a proposal, it is necessary to know if we are in a position to meet the established formal requirements.
by Article 11 of the bankruptcy law(8).
Finally, economic viability also matters, which consists of meeting the minimum conditions.
so that the activity is self-sustaining over time. It is appropriate to remember that for the calculation of
the expenses, for the purpose of determining economic viability, can disregard the computation for those
interests that could be suspended due to the filing for preventive bankruptcy, as well as
from the depreciation expense on the assets used to the extent that their replacement is not necessary.

8.4.4. Structure of Liabilities

Another variable that takes on fundamental importance is the composition of liabilities. In this sense
it is important to distinguish: the liabilities with real guarantees from those that are not guaranteed; the labor liabilities that,
generally, has privilege, either special and/or general, etc. Let's remember that, at first glance, the solution
the preventive measure is fundamentally oriented towards unsecured loans, therefore, it would not have any
It makes sense to consider the preventive competition of a company with a liability that is mostly present.
guaranteed that I will hold some privilege.
At the same time, the structure of the passive also matters to project the scenario of the policies in agreement.
at the moment of obtaining the conformities. Thus it is the case that, if a large part of the liabilities is
concentrated in the hands of a single creditor, so that this one had the key to the legal majorities, not
It makes sense to process a whole preventive contest, but it would surely be enough to negotiate with that.
debtor the restructuring of the debt or some other solution.
In this regard, it is important to note that the verification process allows for the externalization and the
ordering of liabilities, both in quantitative and qualitative terms, thus tempering,
excesses in financial compensation, which undoubtedly contribute to the solution of the crisis.

8.4.5. Cost-benefit analysis

 As we have seen, bankruptcy processes have, on one hand, their cost, and on the other, a variety
of benefits, which can be quantified; thus we have the suspension of the interest course, the eventual
update, the possible explicit and/or implicit reduction contained in the agreement proposal, etc.
A first cost-benefit analysis would consist of determining the economic outcome of each one.
From the procedures, it could provide, as an additional factor at decision-making time.
However, it is worth noting that it is not always feasible to measure these costs-benefits, as there are
some that are difficult to value in monetary terms, but that in any case weigh in decision-making. By way of
For example, we can mention as a cost, the loss of the company's positive image, as
consequence of the externalization of its crisis in the judicial sphere; on the other hand, as a benefit we can
citing the best disposition that concurrent creditors can have to negotiate a payment agreement
in the preventive contest, upon realizing that their adhesion is not essential, due to the application of
the legal majorities.

8.4.6. Types of effects

It is clear that to design the bankruptcy strategy and select, consequently, the procedure
the most suitable bankruptcy for the case under study, it is necessary to consider all the effects that the various
procedures produce. These effects, based on the benefit/harm they cause, can be classified
a) sought effects and b) unintended effects. The former are those that report benefits and, for
Thus, they are desired by the strategist, e.g.: the suspension of interest accrual, an effect of the competition.
estimate that results beneficial, and consequently, sought by the debtor when opting for this institute.
On the other hand, the unintended effects are those that, despite not being desired, appear as
result of the processing of some bankruptcy process. These can, in turn, be classified into two
subsets, namely: b1) tolerable unintended effects, and b2) intolerable unintended effects. The
The first ones are those that appear without having wished for it, but whose presence is tolerated.
As an example, we can mention the dissemination that generally occurs in graphic media, of the presentation in
debtor's competition; no one appears before the judge to appear in the newspapers, however, it is a
consequence that, ultimately, is tolerated. The case is different for the intolerable unintended effects, which
they are those whose mere presence can block a certain course of action. Let’s see an example: the
the bankruptcy of a partnership implies the automatic bankruptcy of all its partners, being partners with
unlimited liability. This circumstance, in light of the possibility that the partners may have access to another
type of solution (such as additional capital contributions), would be a blocking factor for the
mentioned strategy.
This analysis of unintended and intolerable effects must be carried out in relation to the effects of the process.
what is chosen and those that could emerge as a consequence of the failure of the chosen course.
For example, when we talk about a Preventive Competition, we should not discount the possible Cramdown or the
eventual bankruptcy, what would be the subsequent procedures if the necessary majorities are not achieved
to approve the proposed agreements.
Therefore, and in light of the above, the tolerance analysis must be carried out extensively for all the
instances.
Finally, it should be noted that this tolerance analysis can be performed from different perspectives.
of interest, namely: a) from the company; b) from the administrators; c) from third parties linked with
the company; d) from creditors; and e) from the entire community. Obviously, it is possible, what
It really happens frequently that the result is diverse according to different perspectives.
Based on the elements developed in this point, it is feasible to construct a sort of analysis matrix.
of desirable and undesirable effects of solutions, in their various classifications and from the different
pointed perspectives, based on the interests of the involved protagonists.

8.5. Social cost

Saying that companies and organizations are made up of people seems obvious.
 However, this obvious fact is often not properly considered by those
responsible for these entities when making decisions about courses of action in situations
of crisis, and therefore, there is not an adequate dimension regarding the effects on the staff and
the community has those decisions.
Let's take, for example, the case of a company or industrial establishment where a large part works.
of the inhabitants of a village in the interior of the country. Necessarily, the crisis of the organization is going to
to impact the entire community, both due to the loss of the source of employment for those directly involved
and a significant number of families—with all the social trigger that this implies—as for the
community in which she is embedded.
Therefore, when making a decision about bankruptcy or when analyzing some of the alternatives
precedents addressed in this chapter, these effects must be considered necessarily and, in case of being
possible, foresee the way in which they will be addressed, conducted and/or mitigated.
Another aspect related to the human capital of companies is what we could call
"self-generated intangible assets" and that, in extreme crisis situations of organizations (e.g.:
bankruptcy), there is a risk that they may be completely lost.
We specifically refer to all those intellectual developments that are being generated in the
organizations: process designs, know-how, and ad hoc IT developments, etc.; generated
by the members of the different levels of the organization and only applicable to the activity that takes place in it
develop.
These aspects, once not considered, are today of capital importance to take into account,
example, the valuation of a company with a view to its sale. This reality arises as a consequence of the
transmutation that has occurred in the last forty years in societies with economic activity,
whatever your field, transitioning from a purely manual job to a job where the component
intellectual is fundamental.
These particular developments of organizations have arisen from the investment of time and capital.
intellectual and material resources that, if dissipated, would imply a definitive loss for the entire community.

9. PREPARATION OF THE FORMAL REQUIREMENTS FOR JUDICIAL PRESENTATION

9.1. Legal forecast

Once a decision has been made about what the path forward will be according to the different
options provided by bankruptcy law, it is necessary to make the judicial presentation, complying with the
requirements established by bankruptcy law(9).
The mentioned standard establishes formal requirements for the request for preventive bankruptcy to the
following:
1) for registered debtors and legally established entities, to prove the
registration in the respective records. The latest will also accompany the constitutive instrument and its
modifications and confirmation of the relevant registrations. For other legal entities, attach,
in your case, the founding instruments and their modifications, even if they were not registered.
This clause requires the presenter to inform their registration with the Public Commercial Registry,
accompanied by the instruments that verify the establishment of the respective companies.
Let us bear in mind that in the area of the Autonomous City of Buenos Aires, the Public Registry of
Commerce operates under the orbit of the General Inspection of Justice.
In the event of submitting a business grouping, this requirement must be fulfilled for
each of the natural or legal persons that make up the grouping.
2°) explain the specific causes of their financial situation with reference to the time when it occurred
cessation of payments and the events by which it would have manifested.
 To comply with this clause, the causes that led to the crisis situation must be indicated.
company, classifying them as internal or endogenous and external or exogenous. It should also
mention the time when, in the debtor's opinion, the cessation of payments occurred, indicating the facts
concrete actions, such as: a) closing of the current account; b) suspension of activities due to lack of
materials; power cut due to non-payment; etc.
3°) provide a detailed and valued statement of the assets and liabilities updated as of the date of presentation, with
precise indication of its composition, the norms followed for its valuation, the location, condition, and encumbrances of
the assets and other data necessary to properly understand the assets. This statement of financial position
it must be accompanied by an opinion signed by a national public accountant.
The aim of this section is for the Judge and all interested parties to understand the financial situation.
of the debtor at the time of the presentation in bankruptcy and that the trustee has basic elements for the
preparation of the general report foreseen by theart. 39from the LCQ.
4°) accompany a copy of the balances or other financial statements required from the debtor by legal provisions
that govern their activity, or those provided for in their statutes or voluntarily carried out by the bankrupt party,
corresponding to the last 3 (three) financial statements. If applicable, the reports and records of the body must be added.
auditor
If you have a professional opinion, it must also be accompanied by the same, with the signature certified.
professional by the Professional Council in Economic Sciences of the Autonomous City of Buenos Aires or
from the corresponding jurisdiction.
5°) accompany the list of creditors, indicating their addresses, amounts of the credits, causes,
maturities, co-debtors, guarantors or third parties obligated or responsible and privileges. Likewise, it must accompany a
file for each creditor, in which a copy of the supporting documentation of the reported debt is included, with
opinion of the public accountant on the correspondence between the debtor's complaint and their accounting records
the existing documentation and the absence of other creditors in their records or existing documentation. It must
add the details of judicial or administrative processes of a patrimonial nature that are in progress or have not been sentenced
fulfilled, specifying its location.
It is important in this clause to comply with all the required specificity; for this information and
documentation will serve as a basis for the syndic to send correspondence to the creditors and then be able to
analyze each of the credit verification requests presented to you and prepare the reports
individual credit claims provided for by Article 35 of the bankruptcy law.
6°) to precisely list the commercial books and those of another nature that the debtor keeps, stating the
last page used in each case, and make them available to the judge, along with the respective documentation.
The accounting books presented and made available to the court will be intervened by the secretary.
and returned to the debtor so that they can continue with the registration of the events subsequent to the presentation in
contest.
7°) report the existence of a previous contest and justify, if applicable, that it is not within the period
of inhibition established by article 59, or the withdrawal of the proceedings if there has been any.
Let us remember that regarding this point, article 59 establishes that the debtor could not present a
new request for preventive concurso until after the one-year period counted from
the date of the judicial declaration of compliance with the preventive agreement, nor may it convert, during that
lapse, the declaration of bankruptcy in preventive proceedings.
8°) attach the employee list, detailing address, category, seniority, and last remuneration
received. It must also be accompanied by a declaration regarding the existence of labor debt and debt with the agencies
from social security certified by a public accountant.
This section was recently incorporated with the latest modification of the LC.Q(10)and is directed
basically to the trustee, who must produce the report on labor liabilities provided for by the law(11).

9.2. Opportunity for its presentation

The presentation document in the preventive competition and the accompanying documentation must be submitted.
with two signed copies, meeting the formal requirements of article 11.
When a duly and validly founded cause is invoked, the judge must grant a non-extendable deadline.
ten days from the date of submission for the interested party to fully comply with the requirements
formal procedures provided for by the aforementioned article.
 Please note that the 10-day period will begin from the day of the 'presentation.'
of the request for preventive concurso and not from the day the judge resolves the granting of the deadline.
In light of what has been said, it is necessary to pay attention to the deadlines, as it is likely that at the moment it becomes
notified of the resolution that grants the deadline, which is already exhausted.
Lastly, it should be noted that the same formal requirements listed above must be
also applies in the event of the conversion of bankruptcy into preventive insolvency and in the bankruptcy petition
made by the debtor himself(12).

10. OTHER ACCOUNTING ASPECTS

The restructuring of liabilities that occurs in bankruptcy proceedings must be accurately reflected in
the accounting of the bankrupt entity.
In this sense, it is necessary to carry out a permanent monitoring of each of the procedural steps.
that they occur in succession, to properly record the various effects.
By way of example and without intending to exhaust the topic at this instance, we can mention the following:
a) Opening of the preventive contest:
Suspension of the interest course of loans with general privilege and with unsecured character
Transformation of current debts into non-current ones as a consequence of their suspension.
enforceability
b) Verification resolution of credits:
Adjustment of debts and their privileges to what is recognized judicially
c) Expiration date to review credits:
Removal of the liability from the credits declared inadmissible and that have not raised an incident
under review
Establishment of provisions for those credits under review
Approval of the payment proposal:
Proposal registration
Registration of explicit and implicit waiver
Registration of the fees accrued in favor of the acting professionals
Registration of the accrued court fee
e) Two years after the submission in competition:
Registration of the cancellation of all those credits that by virtue of article 56, eighth paragraph,
the LCQ, prescribed results

11. CONCLUSION
In this chapter, we have aimed to provide a brief presentation of those aspects
related to company crises, in which the accountant can have an active participation
as an advisor of the company.
Thus we have reviewed the tools available to the professional that allow them to detect, evaluate and
propose solutions to the crises of companies and, basically, understand the steps and
procedures that necessarily link that reality with the judicial sphere. They also allow you to
understand the inseparable interrelationship that exists between the business and legal spheres, given that the
performance in this last one is not an exclusive theme of legal professionals, as has been established
shaped by theLaw 20.488of professional duties.
 Tools for overcoming organizational crises have also been presented based on the
bankruptcy regulations. In this sense, both the conditions that lead to their application have been analyzed,
how the subjects susceptible to being affected by these assumptions, their limitations, benefits, and costs,
and all the variables that should be considered to detect the positive and negative effects of each institution
bankruptcy
It is important to highlight that, with so many variables and different realities, the advisor must
creatively find the most suitable strategic combination for the specific case in which you attempt it
application, trying to maximize business and organizational profit, but without neglecting the interest
and the social cost that is necessarily involved in the process.
Finally, the formal requirements established by bankruptcy law have been reviewed for
the various presentations referring to the insolvency remedy and those accounting aspects that are of interest
to particularly highlight as a consequence of the course of the bankruptcy procedure.
CHAPTER IX

THE PUBLIC ACCOUNTANT AS A BANKRUPTCY TRUSTEE

Juan Ulnik

1. INTRODUCTION AND SCOPE OF THE CHAPTER

Article 13, section B, subsection a), paragraph 1 of decree-law 5103/45, subsequently ratified in the year
1946 tolaw 12.921, that the title of 'national public accountant' will be required in 'bankruptcies and
creditor calls for the functions of the trustee as provided by the bankruptcy law and for the
compliance of the financial statements of fund distribution and dividend calculations, presented
by the liquidators.
Obviously we are talking about a text that could be considered historical today, given the years.
time passed since its sanction, but even despite the accelerated changes of all kinds that have occurred
in the world in more than half a century, especially in legal economic matters, a text enacted so long ago
years, remains in force, it is worth noting that few legislations currently in effect in the world
They introduce into the purview of the public accountant a concept that is so broad within the judicial specialty.
And if we go back to the first background on this matter in our country, we must remember that
our legal roots come largely from Spanish legislation (let us not forget that
we were a colony of Spain). The Ordinances of Bilbao, which date back to the year 1737,
bankruptcy matters talked about the 'trustee commissioners', which is later mentioned again,
our Independence in the Code of 1862 which included both a 'provisional syndicate' and a
"definitive syndicate", although it should be clarified that in such a distant time, studies did not yet exist.
universities that will grant the title of Accountant.
Recently with the validity of thelaw 4156and with the university degree of Public Accountant already existing, it
declares that the bankruptcy syndicate must be exercised by a Public Accountant, which is subsequently
ratified and expanded by law 11.719, but still existing is the figure of the 'liquidator', this official who
disappears from the enactment of law 19.551 which replaces it with the figure of the 'curator'
liquidator
Promulgated the law 19.551 on April 4, 1972, over the years it undergoes significant changes.
important in its wording, as a consequence of the successive reforms arising from laws 20.312,
20.315, 20.595, 21.488, 22.917, we have arrived at thelaw 24.522 currently in force, although with the
partial modifications arising from thelaws 24.760,25.113, 25.374, 25.563, 25.589, 26.086 and the most
recent with profound changes in labor matters: I refer to theLaw 26.684but, at present, the article
253 maintains its validity in that the syndicate may be exercised in a manner
exclusivapor Public Accountants. The system of category for trustees is also still in effect, topic
this one of certain complexity to which we will refer later on.
With what has been stated so far, it is widely demonstrated the important role that the legislator has played.
reserved for the Public Accountant in bankruptcy processes, which undoubtedly justifies it
these lines, in a work intended for general illustration of students and graduates. It does not intend
to be a profound treaty on such a thorny matter, but simply a guide for action within
so important the role of the Public Accountant, thus illustrating basic aspects that relate to his
performance in the forensic field, with the modest intention of being useful to scholars of the topic, and
for illustration for Public Accountants both when they work in the judicial area, as well as
when acting as advisors to merchants with business crisis problems in order to enlighten them
about the possibility of resorting to bankruptcy remedies.
This is how through the following chapters, we consider it prudent before fully delving into the
responsibilities, rights, and obligations of a bankruptcy trustee, comment on everything related to them
essential requirements first for your registration and subsequent designation, since we
guiding a practical and at the same time teaching spirit, we have understood that before elaborating on the tasks to
to carry out, precise notions about how to access such performances must be had.

2. REQUIREMENTS AND LEGAL STANDARDS APPLICABLE TO THE REGISTRATION AND APPOINTMENT OF THE ACCOUNTANT
PUBLIC AS RECEIVER IN BANKRUPTCY

2.1. Requirements
We enter one of the most controversial topics that has stirred opinions, both from accountants,
such as those of lawyers and magistrates; and there are many and very respectable opinions to listen to regarding this.

Of course, it would be an easy way out to transcribe theart. 253of theLaw 24.522(before art. 277 of the
law 19.551) without further comments, as the text of the legal norm is quite clear, but the importance
and the significance of the topic certainly deserves additional comments.

The ancient bankruptcy laws, which created the figure of the trustee, and which required that the
even having the enabling title of public accountant, they provided that the respective lists would
they will be renewed annually, then transition to the biannual system and finally reach the current system
valid that consists of the renewal every four years.
At this point, it is essential to clarify that, according to the text of theart. 253, inc. 1, from theLaw 24.522and what
did not experience changes when the subsequent modifications to such legal norms were sanctioned, such
performance is exclusively reserved for public accountants with more than 5 years of practice
professional and then follows the aforementioned legal norm saying that preference is given to those who had
pursuing university degree programs in postgraduate specialization. This latter also has its background
in paragraph 35, section b) of the Exposition of Motives of the aforementionedlaw 24.522when it is clarified that
it referred to the preference for specific careers and professional deepening with the meaning and scope that
University-level courses are inherent to that name, and not just simple courses.

One of the first controversies arises from the seniority requirement, and it continues with the requirement
of the specialization. In the opinion of many graduates, the enabling title is unique and without limitations of
no species, which is why they consider it unfair to deny access to a job with requirements
prior to any, since it is argued that the experience that only the active practice of the profession provides
it is necessary in any specialty, and for that reason there is no prior requirement for anyone
other responsibilities of the public accountant. This is true, but the task of the bankruptcy syndicate is so vast
and so dissimilar, as it covers so many areas of the profession, that hardly without years of experience and without
previous specialized learning, allows for the complete fulfillment of the function of bankruptcy trustee.
Both an agricultural establishment and a metal foundry can seek insolvency relief.
a company director as well as a director can be in a situation of financial impotence
cinematic; it can involve either a unique establishment with a single employee or a
establishment with fifty branches and a thousand employees. And, in compliance with the legal mandate in
relatively short periods, the bankruptcy trustee must produce, among others, reports including audit reports
as for feasibility, investigate the past and project future actions, issue various certificates, monitor
goods, and thus we could continue with many more functions. Its action is non-delegable (art. 252), and it
they can detail many more demands, all of which (although we must admit does not represent a guarantee
it makes us agree with the currently applicable legal regime that requires seniority and specialization,
Well, at least it is the most serious and coherent alternative regarding this.
The Argentine Republic has a federal system of government, meaning that laws coexist and are applied.
national and provincial application laws. Law 19,551 and its subsequent reforms are national laws
uniforms for the whole country, but the Codes of Procedures, in force in each Province, only have
application in that provincial territory that has promulgated it. The same applies to the organization of the
justice, since each of the political divisions of the republic has its own court organization, and
Even the most important provinces (for example: Buenos Aires, Santa Fe, etc.) have departments.
judicial in their territories, with different Courts of first instance and appellate courts and a Supreme Court
by province. At the same time, they have jurisdiction and competence in the Federal Capital in bankruptcy matters, the
National Courts of First Instance in Commercial Matters, the National Court of Appeals in Commercial Matters
And in certain cases, the final word rests with the Supreme Court of Justice of the Nation.
TheLaw 24.522currently in effect, even with its subsequent modifications that have never
modified the theme of jurisdiction and specialization, innovates in two ways, since the text sanctioned by the
Congress of the Nation departs from the draft bill submitted by the Executive Power, which originally
allowed the syndicature to be exercised indiscriminately by public accountants or by lawyers, and in
the text finally promulgated by the Executive Power, in its article 253, section 1°, clearly reserves the
function of the bankruptcy trustee to the public accountant.

But what is new in the country, as there are no prior precedents regarding this, is the division of the
syndicates in two categories: category A, composed of public accountants' firms, and category B,
made up of public accountants individually.
All of this is detailed in paragraphs 1 and 2 of article 253, and further along we will refer to it.
in this regard.

2.2. Registration
In national matters, thelaw 24.522in yourart. 253, inc. 2°provides that every four years the Chamber of
Appeals corresponding lists should form with no less than fifteen trustees per court, with 10
substitutes also by court, all of whom can re-register indefinitely (it should be noted that
formerly, when the registration was annual, according to article 88 of law 11.719, once the accountant
I was going to integrate an annual list, I could not appear again except with an interval of one to three years, according to
the respective Tribunal established it, regardless of whether it had been drawn in for such forced exclusion.
any cause); that is, currently the experience that is assumed to be acquired in a practice is privileged.
continuing in the function of Trustee.
It continues by stating that the current legal standard requires there to be two lists; one of which corresponds to the
category A, consisting of studies, and the second called category B, consisting exclusively of
professionals individually.
Where the discretion of each Court of Appeal comes into play is in the procedure to be adopted to form
the lists of starters and substitutes, except for the obligation to prioritize those who have
background and experience; and within this, those who can prove they have completed university degrees of
postgraduate specialization. In the Autonomous City of Buenos Aires, it is governed by agreements issued
by the National Court of Appeals in Commercial Matters, which currently provides that each Court has
with a list of fifteen principal trustees, of which three will be category A and twelve will be category B.
those three Category A syndics, two are appointed by the Chamber based on background and studies of
graduate studies, and one of them by lottery; and with respect to category B, a number of trustees is appointed
based on background and postgraduate studies, and the rest is assigned by drawing lots.
Having compiled the global lists detailed above, and always by public draw, we proceed to the
distribution by Court, assigning to each Tribunal the same proportions of trustees category A and B, and
within each category, the same proportions of professionals with backgrounds and/or studies
specialized and randomly selected accountants.
 The remaining non-selected candidates are drawn to determine the syndics who will act.
for four years as substitutes, appointing one from category A and nine from category
B, by Court, and regarding its appointments for its action in the cases, we will refer to
lines further ahead.
With small differences logically adapted to the territorial importance and number of inhabitants, to the
number of courts and the number of registered candidates for syndics, each Court of Appeals
Provincial courts with jurisdiction over bankruptcies have issued their respective rulings.

It is important to highlight that in the Autonomous City, emphasis is placed on the fact that the applicant
the trustee has available offices with sufficient amenities (in the case of trustee studies,
The regulations stipulate that professional study plans must be included to serve the public.
as well as not having sanctions from the registering Court, having been resolved currently in
the Autonomous City that must mandatorily serve the public in the offices of the syndic at a minimum
from 12 to 18 hours.
There is no impediment as long as the applicant has residences to establish them.
the syndicate may register in as many judicial jurisdictions as it wishes to do so, although in recent years they have
restrictions have arisen in this regard. As an example, we can mention that in CABA it is required that the address
real should not be more than 250 Km from the seat of the Court; and some Provincial Courts have
dictated rules in order to avoid the registration of what we call the 'swallow syndic' which constitutes domicile
only for reasons of convenience. For example, in the Province of Córdoba they have preference
those who declare under oath that they have their actual and professional address in the judicial district in
in which they are registered.

Even so, and even when the regulations of the respective Courts have not required it at the time
From the registration, a ruling issued in the Province of Jujuy is striking, in the case 'CAFA SRL' s/ bankruptcy for
grouping, by which upon learning of the Tribunal that the professional's actual residence
who served as a syndic in a case was in CABA (that is, 1600 km from Jujuy) was removed.
of the position.(1)

2.3. Designation
Following the guidelines of Article 253, in its second paragraph, it dictates rules that already become
mandatory for the Courts across the country, such as the requirement for separate ballot boxes to exist for
bankruptcies and for competitions and for the theoretical assumption in which a competition results in bankruptcy,
the proceedings will continue with the same trustee. The old law 11,719 stipulated explicitly in its article.
89 that for the purposes of the draw, the drawn syndic was removed from the lottery, until they had been
the entirety of the members of the list were drawn. Law 19.551 said nothing about it, but, whether it was for
agreed upon in different jurisdictions, whether by usages and customs, currently in this regard the
the procedure has not changed. Instead, thelaw 24.522It expressly states in its article 253, section 6 that the
Designated leaves the list until all candidates have acted.
The eighth and ninth sections of article 253 have a legal void regarding the order of preference.
for the appointments of alternate trustees. While they provide that as the principal trustees cease
(for any reason, such as removal, resignation, or death), the substitutes are incorporated, as well as
that substitutes must act due to the licenses of the holders, do not legislate, if the order of the draw must be respected
with what the lists prepared by the Chambers are received, or whether a new draw must be held among
the totality of the alternate trustees of the Court and there is no majority rule in this regard
Courts regarding the interpretation of said sections, with differing solutions even within a
same judicial jurisdiction.
Another legal loophole is related to the way of appointing the so-called "ad hoc" trustees (who intervene
punctually in credit or situation studies, where there may be a personal interest of the
regular syndic), as no article of theLaw 24.522it mentions, leaving it up to the discretion of each Court the
remove it from the lists of starters or substitutes, its replacement in the lottery, and the guidelines for the
regulation of their fees; it is desirable in this regard that future legislation considers such
figure and include it in the articles of the Law.
It is left to the Judge's discretion to enforce the last part of article 253 that refers to the syndic.
It should be noted that the Law imposes only three conditions in this regard:
 1°) That it is a process whose volume and complexity justify it;
2°) That such decision be founded; and
3°) That establishes the coordination regime of the body of trustees that is created, that is to say, that outlines the
functions of each of the trustees.
The role of the syndicate is so complex, especially when it comes to large-scale processes.
economical, there are so many and such varied precedents to be applied and the criteria can be so difficult
to be reconciled, especially if chance selects professionals with different academic backgrounds and diverse experiences.
working methodologies, we do not share this idea of the legislator, as despite having very little
receptiveness in the Courts, we believe it may complicate the process, rather than relieve the burden
procedural, especially if we bear in mind the possibility of the Judge appointing a firm as trustee
Category A.
Article 255 states that the appointments are irrevocable, except for a serious cause that prevents it.
performance, and intelligently in order to prevent a trustee from resigning for 'poor' reasons and continue
performing in the 'rich' causes, it also provides that the resignation includes the entirety of the
audits; that is to say, there is no room for arbitrary choice. If there is no serious cause that justifies the
resignation, a professional cannot be forced to continue with assignments they do not wish to, but must
to know that in such cases, their resignation may be rejected and their removal may be decreed outright,
what the sanctions of article 255, third and fourth parts bring with them.
Article 256 enshrines the right of the trustee to excuse themselves for a specific reason, referring to
the grounds for disqualification with cause for the magistrates. They must also recuse themselves if they find themselves in the
the same situation facing a creditor, and for that particular case, a substitute trustee must be appointed. It is
notable that the new Law, like the previous one, says nothing regarding the excuses of the trustee in front
to the applicant. Notwithstanding such legal silence, by analogy and by elementary logic, we estimate that the
the provisions of art. 256 are valid for bankruptcies (which is perfectly determined in the
Law), as for contests.

2.4. Licenses
Obviously, the trustee is a human being, who can be affected by a myriad of circumstances that
temporarily prevent them from fully exercising their functions, especially if it is considered that the appointments
they have a duration of four years. Article 255 'in fine' of thelaw 24.522it addresses the topic of licenses, and in this regard
it states explicitly that they are granted for reasons that temporarily prevent the exercise of the position,
not being able to exceed two months per year in a row. The same legal norm also provides for them.
the Judge, being appealable in case of denial. Although the Law does not provide the obligation to add evidence
any that justifies the request for leave, being a power exercised by the acting magistrate, is
It is more than obvious that the request must be reasonably substantiated, and if possible, including the evidence.
that support the request, such as medical certificates, certifications for courses in foreign jurisdictions,
documentation related to family rights, etc.
At this point, we allow ourselves to criticize the apparent inflexibility of the law when it strictly limits to two.
months in the year (in the silence of the Law, it is presumed to refer to the calendar year) the maximum period
of the license, although we understand that in the face of a duly substantiated request with solid evidence, said
the period could be extended by the intervening Judge.
In the event of a denial by the first-instance judge, it is possible to appeal to the Chamber.
Appeals, but this often becomes a remedy when it comes to cases that cannot wait.
illusory.

3. ATTRIBUTES, RESPONSIBILITIES AND REMUNERATION OF THE BANKRUPTCY TRUSTEE

3.1. Attributions
We have previously commented on the diversity of tasks that one must face.
bankruptcy trustee in the performance of their function, all of them so dissimilar from each other, and it must be understood that
To achieve such an immense and extensive task, it is essential that the Law provides the necessary tools.
necessary. Such legal tools arise from the provisions of theLaw 24.522 and its subsequent ones
modifications, especially of article 275.
It is important to emphasize regarding the use of the professional signature that they should not be confused with the
powers that a Public Accountant has when acting as an expert, arbitrator or intervenor, that
when acting as a bankruptcy trustee, since only in this last circumstance can he sign
documentation that makes the judicial procedure with the same powers as the Code of
Procedures attribute to lawyers. Only when the Public Accountant addresses in the exercise of the
The role of the bankruptcy trustee is empowered to sign certificates, official documents, and requests for reports.
various. In this regard, Article 137 of the Code of Civil and Commercial Procedure and theart. 275, inc. 1°, law
24.522They are authorized to sign certificates and at the same time the other powers granted by the aforementioned article 275.
they are so important, broad and extensive that they deserve to be repeated verbatim. It states such articulation:
Article 275. Duties and powers of the syndic - It is the syndic's duty to make the necessary requests for the swift
processing of the case, the investigation of the debtor's asset situation, the facts that may have
incurred in it and the determination of its perpetrators.
To that end, it has, among others, the following powers:
1) release all documents and orders, except those addressed to the President of the Nation, governors,
ministers and secretaries of state, officials of similar rank and judicial magistrates;
2) Request reports directly from public and private entities. In case the requested party understands
The request is inadmissible; it must be asked of the judge to be annulled within the fifth day of receipt.
3) request explanations from the debtor or third parties that it deems appropriate. In case of refusal or resistance from
those summoned may request the judge to apply arts. 17, 103 and 274, inc. 1;
4) examine, without the need for any judicial authorization, the judicial or extrajudicial files where it
ventilate a property issue of the bankrupt or directly related to it;
5) issue service provision certificates for the dependents, intended for submission before the
social security organizations, according to accounting records;
6) in general, request all measures provided by this law and others that are applicable for the indicated purposes.
7) During the credit verification period and until the submission of the individual report, you must have an office.
open to the public during the hours determined by the regulations that the Court of Appeals will issue for this purpose
respective.
8) The syndic must provide a receipt with date and time under their signature or that of the person expressly authorized.
file, of all documents that are presented to him in his office during the credit verification period and until
the presentation of the individual report, which will be extended in a copy of the same written document.

The syndic is a party in the main process, in all its incidents and in other proceedings of a character
assets in which the contestant is involved, except those arising from family relationships to the extent
provided for by this law.
Except for the documents that have a fixed wording, in the other documents that are
as a bankruptcy trustee, it is advisable to include in the text the phrase that it is signed in the use of the
attributes granted by the aforementioned article and sections. The provision previously mentioned makes saving
of the procedural times and the work of the Court, while equating the powers of the Accountant
Public, bankruptcy trustee to the lawyer.
The duties of the Syndicate specified in sections 7 and 8 are novel and without precedents in
the past, and on which we will refer to in more detail, lines further ahead, when talking about the process of
credit verification.
Always in the subject of the powers of the syndic, it is important to mention the rights granted to him by the
art. 33, a fundamental tool in clarifying and reaching the truth in the determination of
liabilities, which extend even to the right of access to third-party books and documentation.
Preferably all orders carried out by the Trustee must have written support, although
You can choose to request such information through the judicial file in which it is located.
acting.
 In conclusion, there can be no secrets for the bankruptcy trustee regarding the businesses.
of the debtor, nor in relation to the businesses of third parties with said debtor, which does not mean that the
the trustee should not disregard what is stipulated about the 'professional secrecy' in the Code of Ethics that governs
in the profession, well even in the assumption that I must bring to the court's attention some issue that due to
for various reasons the debtor or creditor involved must keep it confidential, there is always a solution
to request the intervening Court to form a "confidential file" which is obviously exhibited.
only to those parts authorized by the Court.

3.2. Responsibilities
It is essential that if the powers are greater, the responsibility increases. When lines more
above is transcribed the clear text of art. 275 which illustrates the powers of the syndic, it is necessary
to remark that at its beginning it uses the term "...it is up to the syndic...", that is, it is imperative; and this is so because
how the syndic is the suitable professional for the performance of the tasks outlined in the different sections
explicit.
The public accountant who ventures into the field of bankruptcy syndication must keep in mind,
to exercise the mandate that the Law confers upon him, in the manner most aligned with the law that is possible, without
to neglect or violate neither legal norms nor technical standards that pertain to the practice of the profession, because
may face penalties of various kinds, both in the file in which it is acting, before
the Ethics Courts of the profession, and even when the seriousness of the act warrants it, those
contemplated by the Penal Code.
It is not the case to consider here the criminal behaviors carried out knowingly and in a deliberate manner.
voluntary, behaviors that are reprehensible which fortunately for the prestige of the profession, are almost
unknown, but it is worth noting that malpractice, whether due to defective knowledge of
substantive or procedural laws, negligence, incompetence, and even due to inadequate legal representation, can cause a fall
the bankruptcy trustee in the figures of "procedural fraud" or "false testimony", both included in the
Penal Code.
Although articles 239, 245, and 279 of the already expired law 19.551 are not repeated in the new one.Law 24.522sin
the detriment that the text of the deceased article 279 is partially repeated now in article 255, it is no longer
damages that the official must repair (and the bankruptcy trustee is one), and instead in
the third paragraph of art. 255 introduces the possibility of a reduction (as a penalty) of the fees
from the syndic, and in the following paragraph it contemplates the application of fines to the syndic of up to the equivalent of the
monthly remuneration of the First Instance Judge.
Despite the new legal text, we understand that under the application of current laws, the possible "damage"
for which a trustee may be charged with poor performance in their role, can have different
penalties. In summary, incorrect actions may eventually lead to both monetary punishments
as a personal order.
Due to the fact that these are more common occurrences, we omit the transcription of rulings that have contemplated the
removal of the syndic, but it has been deemed appropriate to bring some jurisprudence that sanctions
monetarily to the bankruptcy trustee, all of them issued by the National Court of Appeals in matters of
Commercial and corresponding to the cars that are specified in each case. The Chamber Prosecutor ruled on it.
which the Court adhered to: the delay of nearly three months incurred in the publication of the edicts pertaining to
a fund distribution project justifies the imposition of a fine of five hundred australes on the syndic,
even when the funds have been kept in an interest-bearing account (2)It was also said: 'If the report does not
meets the formal and substantial requirements set forth by article 35 and Technical Resolution No. 7 of the
Argentinian Federation of Professionals in Economic Sciences—applicable according to the provisions of the law
20.488; 21-F and law 20.476; 8-F—, given that in most cases the trustee is limited to
to formulate a brief review of the creditor's request—which is not sufficient to account for the
elements that he had in view to issue his opinion—and does not substantiate his ruling, corresponds to the
imposition of a fine.(3)It was also sentenced: 'The sanction regime for the syndic implies assessing
globally its performance, considering the entirety of its performance. The circumstance of having to
to urge the Court for the re-registration of expired inhibitions, due to the paralysis over long
periods of the main file, it demonstrates the lack of diligent action on the part of the trustee in the
compliance with their functions—which in no way can be subordinated to the threats that
the Judge must address him for that purpose—and justifies the imposition of a fine as a sanction(4).
 While there is currently no receptiveness from the Courts, a certain intimidating trend is noticeable.
to the bankruptcy trustee, when costs are requested personally against him. Given that never
there is absolute security of emerging victorious in a lawsuit, to initiate or defend actions as
representative of the body of creditors in a bankruptcy, or take a certain position in a competition
quote, with the risk of having to face the legal costs with personal assets, could
to act as a dissuasive brake, which is inadmissible, as it would undermine impartial performance of
the syndicate.
It is important to note that the National Court of Appeals in Commercial Matters stated that 'The rejection
of the bankruptcy extension request, formulated by the trustee, due to the fact that it has not achieved the
sufficient accreditation of the invoked facts, the demonstrated evidentiary negligence, and the lack of impetus
convenient actions can justify a sanction, or, ultimately, a convenient analysis of
moment of the regulation of their professional fees, but not the imposition of the costs of the process
when acting in representation of the bankruptcy5.
A more recent ruling from the same Court agrees with the doctrine mentioned above, as it states "In
As for the costs, due to the lack of merit for a personal imposition on the syndic, this is extreme.
eventually reserved for hypotheses of procedural behavior that directly harms the
contest, absent in the records. It must be noted that it was the bankruptcy trustee who initiated the incident
against the failed as a necessary principal contradictory, without it being justified that the creditors are thus,
who did not obtain any benefit from the dispute, those who should—by way of the impact on the asset that
it implies an imposition of costs and the subsequent regulation with the grading of LC 264—covering the
expenses and fees incurred in the proceedings(6).
Always within the obligations of the Syndicate, at least for those who act in jurisdiction
from CABA, before applying to be part of the lists of syndics, one must take into account the provisions established by the
Article 16 of the resolution issued by the National Court of Appeals in Commercial Matters on October 12
2007, in the sense that the syndic's offices must be open for public service when
except for judicial business days from 12 to 18 hours.
To conclude the aspect of the responsibility of the bankruptcy trustee, it is worth mentioning the one that arises from the
Tax Procedure Law in conjunction with the Tax Criminal Law (and no less importantly are
the resolutions issued in recent years, both by AFIP and the Revenue Departments of different
provinces, for which once accepted the position of trustee both in competitions and in bankruptcies must
to complete and submit a series of forms in order to specifically disclose the identifications
the debtor, their address and the dates set for the submission of verification requests, etc.
well, the bankruptcy trustee could eventually appear as "responsible for someone else's debt", and
the responsibility arising from the application of the Code of Ethics of the profession must also be considered,
in which case the natural Judge is the Professional Ethics Tribunal of the Professional Council of Sciences
Economic.

3.3. Remuneration
In the exposé of motives of the old Bankruptcy Law, law 11.719, its author, Dr. Ramón S. Castillo,
he said that the functions of the syndic should be paid, because no one sacrifices their own time to ...
to dedicate it free of charge to others. This, which is crystal clear, in what it refers to that it is
strict justice to remunerate the syndic, by the work and miracle of laws, sentences, and plenaries, associated in the
past violent periods of currency depreciation mean that in most cases
the remuneration to be received does not compensate for the time and effort invested, and in many cases is
completely nonexistent.
Before delving deeply into this topic, it should be clarified that both for accountants and for lawyers
those participating in the bankruptcy process, the provisions of the respective tariffs do not apply
of fees that apply to both professions. This arises for accountants from Article 5 of the decree-law
16.638/57 (Tariff for professionals in Economic Sciences), which refers to the now-defunct Law of
Bankruptcies, law 11.719, which stipulates that the fees for such professionals must be established within
the percentages of articles 101 and 102 of the now non-existent legal norm previously cited.
A similar provision is contained in theart. 31of theLaw 21.839(Tariff for lawyers), which in
its first part refers to the specific legislation on bankruptcy.
 All of the above is received by theLaw 24.522that in its article 271 establishes that for the calculation of the
regulations, the provisions of local laws do not apply. Therefore, it is necessary to make considerations of
rigor regarding the "opportunity" and the "basis" of regulations in bankruptcy matters, all of which is found
content in thearts. 265to the272from theLaw 24.522.
It is also important to keep in mind that on very rare occasions, the trustee will be the only professional.
participant in the process. As a general rule, one or more lawyers who represent the will also intervene.
receiver (art. 257), one or more lawyers who represent the debtor, as well as other officials
detailed in art. 266, all of them entitled to receive fees.
The judicial activity of the Public Accountant is governed by the ancient decree-law 16.638/57, which in
Article 5 states that "In bankruptcy proceedings and creditor meetings, the fees of the trustee
they will be set taking into account the importance of the work done and within the percentages
established in articles 101 and 102 of law 11.719.
The aforementioned law 11.719 was replaced in 1972 by law 19.551 which in its articles.
288 to 295 legislated on the regulation of fees, it should be noted that article 289 was amended in
the year 1983 for thelaw 22,917. Currently, such a topic is addressed by thearts. 265to the272of theLaw 24.522.
The regulation is different depending on whether it is a preventive contest or a bankruptcy, and there are several
factors that must be considered by the Judge when making their decision in this regard. The latter regarding
to the amount, because there are also different moments for such regulations.
In preventive contests, the Judge must carry out the regulation by homologating the preventive agreement.
(art. 265, inc. 1°), and if the proceedings conclude for any other reason, then at that moment it must be carried out
the regulation (art. 265, sections 2 to 5)
Article 266 states that the total fees in the case of a preventive agreement, that is, the amount to be distributed
among all acting officials, lawyers and representatives, it must not be less than 1% of the amount of the asset
prudently estimated by the Judge, nor exceeding 4%. To do this, the Judge must take into account the work
carried out by the beneficiary professionals and the time of their performance. In the case where the
If the amount of the asset exceeds the sum of $100,000,000, the fees provided in this article shall not be
exceed 1% of the estimated asset. TheLaw 24.522added a limitation in this regard, consisting of that the
regulations cannot exceed 4% of the verified liabilities, but they will also not be less than two salaries
of the first instance secretary of the jurisdiction where the proceedings of the concurso are taking place.

Such limitation has raised numerous criticisms to which we adhere, as it is a reduction

capriciousness that does not align with the principle of a fair compensatory retribution of the magnitude
from the work, to which it should be added, that at the time of the regulation, incidents can be found
review not yet concluded, in which a resolution may significantly increase the liabilities
bankruptcy, substantially modifying the percentages, but by that time the regulation for
the professionals involved practiced with the limitation of article 266 will be res judicata, which does not admit
Rectification. All this without prejudice to the regulation that may be made at the conclusion of the incident.
review, especially when the costs of such an incident are borne by the person involved in the incident.
In the topic of 'incidents', it is noteworthy and deserves to be highlighted that the latest jurisprudences have emerged
from the National Court of Appeals, have introduced a variant in their rulings, by recognizing what has
given the name 'ultraactivity of the syndic'; that is, their work arising after the regulation,
and that obviously could not be taken into account in such circumstances, as well as when considering that
when costs are declared in order in certain verification or review incidents, it is the
the contested and/or the failed that with its conduct originated the need to insinuate the credits in bankruptcy proceedings,
and consequently, it is imposed that the fees of the Syndicate be fully borne by the
debtor(7).
To aggravate the evils introduced into the matter by the current Bankruptcy Law, which modified
substantially the previous Law, article 257 states that 'the trustee may seek professional advice'
when the matter exceeds its jurisdiction, and legal sponsorship. In all cases, the fees of the
The professionals I hired are solely your responsibility." This article in its current wording is highly
unfair to the syndic when we compare it with article 260, from which it arises that professionals
that the creditors' committee hires, they are with fees charged to the bankruptcy. Words are unnecessary for
to demonstrate such a disparity of criteria.
According to Article 267 on bankruptcies, the regulatory caps are at least 4% of the realized assets.
not exceeding 12% of the same asset carried out. As a minimum scale, it introduces the novelty that,
when it is not possible to reach the minimum of 4%, the regulation must not be less than three salaries of
first-instance secretary of the jurisdiction in which the competition is processed. Just like in the competitions,
The regulation encompasses all intervening officials, legal representatives, and attorneys. This norm concludes.
provided that the same proportion applies in the assumptions of article 265.
It also determines the Bankruptcy Law, the regulations in other cases to wit:
a) In the conclusions of bankruptcy due to total payment (art. 268) the scales of art. 267 are applied, and when
the procedure is closed due to lack of assets or bankruptcy is concluded due to lack of creditors
verified, the regulation of fees is carried out taking into account the work performed,
being able to consume up to the totality of existing funds in cars, prior reservation of funds
to meet the special privileged creditors, and if applicable, other expenses of the contest. Not
It is pointless to comment at this stage that if the procedure is closed due to lack of assets, the regulation
The fees for the intervening professionals will only be symbolic due to lack of funds.
b) In the cases of business continuation, in addition to the fees that may correspond
the trustee for his performance as such, the judge may regulate for trustee and co-administrator up to the
ten percent of the net result obtained from the operation, not being able to account for this effect
selling price of the inventory goods. Always in cases of company continuity, by
Once duly substantiated, the court may determine the remuneration of the syndic in periods.
c) Among the criticisms we have made of the new Law currently in force, we must add
the one that arises from the second part of article 271 that allows judges to deviate from the minimums, either from
by themselves lean, when the nature, scope, quality or result of the professional work, or the value of
the assets that are considered will indicate a disproportion between the importance of the work and the
resulting retribution.
Article 70 of the repealed Bankruptcy Law set a fee for the trustee for overseeing the agreement.
but the currently applicable legal norm in its article 59 determines that once the completion of the
the contest, the intervention of the trustee is concluded. This practically produces various effects, as
although the trustee has ceased his function, it is a very common practice for magistrates to provide notice to
accounting professional, about a myriad of situations that arise during the compliance period
agreement, and this despite the existence in most cases of a creditors' committee, this name
from the old wording that currently according to art. 260 of theLaw 26.684has come to be called
control committee. This is consequently a clear example of the 'ultraactivity' of the syndic to which we
we have referred to earlier.
As a consequence of the fact that the current Law in force, in its article 59, concludes the contest once
the agreement is approved, thus concluding the intervention of the syndic, the provisions in
Article 70 of the repealed Law, when it set a fee for the syndic for overseeing the agreement, although
Currently, additional fees are recognized for the syndic in compensation for the tasks performed.
cable by express request of the Court, as the jurisprudence has interpreted that it cannot be presumed the
the performance of the professional completely free of charge.

While in law 19,551 the fees for the acting syndic in a bankruptcy were collectible according to the
art. 64 six months counting from the homologation or simultaneously with the first installment of
agreement that expires before that deadline, thelaw 24.522in article 54, it anticipates said deadline to ninety days,
always starting from the homologation.
All regulations are appealable by the holders of each of them and by the trustee (art. 272).
It should be emphasized that the syndic is always obliged to appeal for all regulations.
even his own, and if he does not do so, the Judge must elevate the proceedings to the higher court for
the second examination that the appellate courts always carry out. Although it may seem a
redundancy it must be clarified that the syndic is not obligated to appeal for low his own fees, in the
provided that I consider them fair.
As provided by article 244 of the Code of Civil and Commercial Procedure, the appeal of
The appeal must be filed within five days of the notification and may be substantiated within the same period.
that is to say, that the rule does not apply in these cases that the deadline to establish begins to run only from
starting from the granting of the resource. It is therefore very common to find that in the same writing in which
the regulations are appealed, the origin of such appeal is merged.
 4. INITIAL ACTIONS OF THE SYNDIC IN BANKRUPTCY PROCEEDINGS

4.1. In preventive contests

It has theart. 14 of theLaw 24.522 in its subsection 2° that the judicial resolution that opens a concurso
quote, must indicate 'the designation of hearing for the drawing of the syndic'. In the Federal Capital,
the Court of Appeals, decided by agreement dating back to 1982, that the intervening Judge in the proceedings,
You must set the day and time when such drawing will take place, at least 24 hours in advance.
it must be expressly communicated to the Commercial Court of Appeals to inform them of such
disposition, as well as the notice must be posted on the board located at the entrance of each Court
relevant; all of this with a view to the strict control of the drawing process, both by the Chamber Judges, as well
for the syndics members of the list or any other interested party.
It should be noted that paragraph 5 of article 253, in line with the rest of the paragraphs, stipulates that prior to
The draw and according to the complexity and magnitude of the contest, the Judge will classify in an unappealable manner.
process as A or B.
Carried out the drawing, and without prejudice to the unofficial communications that are carried out
various newspapers, procedurally the only suitable means by which the trustee becomes aware of their
designation, it is the judicial notice that must be sent to the address that was provided at the time of its registration before
the Chamber said professional has been constituted, which also contains the deadline granted by the Court for
the acceptance of the position, a period that usually fluctuates between 24 and 72 hours.
The designated professional must personally attend to accept the position and upon fulfilling the requirement.
From that requirement, the deadline for the contestant to carry out the publications starts to run.
Law (Official Bulletin and a newspaper for the establishment's premises at the discretion of the Court), and for the trustee his
different and varied functions, well defined by Dr. José Escandell(8)in functions: informative,
procedural, control, administration and management, and liquidation processes, with the latter two being exclusive to the
bankruptcy, to which we will refer later on.
Upon being drawn for an A-class syndicature according to Article 258, the unselected study must indicate
In each contest in which any or some of its professional members participate, the duty to act is assumed.
personally. We consider the choice of one or more to be of utmost importance in the case studies
professionals with direct intervention, as the responsibility for poor performance of the syndicate will be
solidarity for all members of the study.
The first task to be completed by the trustee, which we could call bureaucratic in nature, consists of
in withdrawing from the Court the copies that must have been delivered in due time
contested, with all the background and requirements demanded by theart. 11from thelaw 24.522,and what happens to
constitute the heading of the working papers folder that is advisable to maintain in the performance
from the syndicate. Also, the relevant check from the funds that the debtor must be withdrawn from the Tribunal.
he must have deposited in compliance with the provisions of article 14, section 9 of the Bankruptcy Law.
Completing the first steps, the next one should be the preparation of the notice letters.
certified (art. 29) and their submission within the tenth day of having started the publication of notices. In
reason to test the diligence and honesty of the Syndicate in the handling of the withdrawn funds for the
It is advisable that the correspondence be submitted as soon as the task has been completed.
detailed account in the files attaching the shipping receipts, and in the case of excess funds existing,
deposit them in the file at the order of the Court.
It is important to emphasize, in order to dispel doubts, that it cannot be inferred from the legal norm what is the
minimum hours and days of attention that the trustee must establish to assist creditors who wish.
to insinuate oneself, reason for which, it is appropriate to apply the logic and reasonableness of uses and customs in what
It is about attending to administrative tasks. In other words, it should not be considered mandatory to attend to creditors.
the five business days of the week with daily hours of eight hours, but it is also not reasonable to set a
unique day per week for such attention, or a restricted schedule of one or two hours daily. No
The supposed number of creditors to be attended to is of lesser importance in setting the service schedule.
All this without prejudice to considering that in the Federal Capital, as agreed, the Excellency Chamber has
it is resolved that the minimum hours of public attention in the offices of the syndic must be from 12 to 18
hs.
 A serious performance of the syndic's function requires that personal contact be made as soon as possible.
with the main executives of the bankrupt company, and visits to their main sites, whether these are manufacturing,
commercial or administrative, with special emphasis on gaining knowledge of the systems
administrative tasks, both for control and accounting, as well as to carry out a control of the
stocks of the contestee in relation to what the debtor should have reported when complying with the article.
11, inc. 3°.
Given the clear wording of Article 15 and the content of Articles 16 and 17 of the Bankruptcy Law, the trustee
is authorized to implement all controls it considers necessary for the best and proper
performance of their tasks, always respecting the limits that reasonableness imposes, and not losing sight of
given the importance and magnitude of the debtor company, efforts should be made to avoid incurring new expenses
a merchant who is already in serious financial trouble.
In order to formulate the different requests made to the controller of the Syndicate, and with no opposition.
of the debtor, they can be executed directly in the name of the legal representatives or
bankruptcy administrators (preferably using written means) and in case of refusal to the
receipt of requirements or unjustified non-compliance through the respective file
judicial.
It is of paramount importance to address the new obligation imposed by theArticle 3from thelaw 26.684what
also amends paragraph 11 of thearticle 14from theLaw 24.522upon imposing the syndic, that in the more than
a peremptory deadline of ten days which is counted from the acceptance of the position, shall pronounce: 1) on
the labor liabilities reported by the debtor and 2) issue a ruling after auditing the documentation
legal and accounting, regarding the existence of other labor credits included in the prompt payment. It is evident
and it arises from the reading of the recent reform that the legislator has not differentiated between the small and the large
competition, as there is no other way to understand agreeing on the same deadline to report on 200
or 300 workers to inform only about five or ten of them.
Always within the new theme introduced by thelaw 26.684, almost simultaneously with the
The appointment of the bankruptcy trustee also gives rise to the 'control committee' which, according to the new wording...
of the inc. 13, of theart. 14from theLaw 24.522must be made up of the three unsecured creditors of
higher amount and here is the most novel part, by 'a representative of the workers of the contesting party, elected
for the workers" being the Judge responsible for determining the system by which the employees
they will choose their representative.

The Code of Civil and Commercial Procedure in its article 463 establishes the expert's right to
request an advance of money for the expenses of the proceedings. Such a principle is not contained in theLaw
24.522except for the mention of Article 263 where in its first paragraph it authorizes the performance of employees. No
Despite such legal silence, we consider that when the trustee must travel outside the legal jurisdiction
in which he/she registered at the time, has the authority to request judicially that the debtor be compelled to
who covers the costs of such transfers. On the other hand, we understand that the trustee must absorb the
totality of their office expenses without being able to claim any compensation, even if only partial, for them,
based on the fact that it has had to expand its organization in order to adequately attend to the
auditing (except for the employees referred to in article 263 and the direct impact provided for)
by articles 32 and 200, when they speak of the 'tariff').
The internal organization of the bankruptcy trustee's office must be as functional as possible, especially with
the possibilities that cybernetics has put within our reach in recent years. Given that everything the
the procedure is written, and that in many cases the verification requests that are received are quite
bulky, it is necessary to begin by organizing an efficient file that allows at any time the
quick access to the received hints, as well as keeping the working papers (do not forget
that in addition to judicial knowledge, the bankruptcy trustee must have solid knowledge of auditing
in an orderly manner.
Experience has shown that creditors in almost all cases (and even more so those who
they only present themselves before the Syndicate when there are only a few days left for the
closing of order receptions, and given the schedule of dates provided by paragraphs 3° and 9° of
Article 14 of the Bankruptcy Law usually allows no more than one month to present the reports.
provided for by article 35, and that a short time later the report determined by the article must be submitted.
39, it is of paramount importance, in order not to fall into time constraints, to start with the tasks
Informative and control measures are accepted as soon as the position is accepted and the guidelines are complied with.
The above-mentioned proceedings. The tasks of the Syndicate must be properly studied and grounded on
certain facts and legal backing. Any work urgency, due to delays in timing, conspire
inevitably against such principles, and this must always be taken into account by the responsible professional
from the Syndicate.
Another example of tyranny in times arises from the more than scant period of days from the acceptance.
from the charge established by the new wording of paragraph 11 of theart. 14from thelaw 24.522to which we have
referred to earlier.
The organization of the syndic's office must also meet the new demands arising from the
arts. 34 and 200, regarding public attention, as it could be said that such an office becomes
a kind of 'branch' of the Court, given the imposed obligation to attend to creditors and to display
documentation.

4.2. In bankruptcies
Everything explained above regarding the removal of the trustee in bankruptcy proceedings is
similarly valid for bankruptcies, with the precaution that there must be two separate lottery drums, one
for contests and another for bankruptcies, which explains why sometimes chance determines that the same
a professional is designated in the same draw act, both to perform in a competition and in
a bankruptcy. What was explained about the categories of trustees and the acceptance is also valid.
cargo, and in other aspects, the differences in the performance of a syndicate begin to become apparent in a
bankruptcy proceedings.
A comparison between the texts of article 14 (for preventive bankruptcy) and article 88 (for bankruptcy)
they point out important analogies and differences. In terms of the appointment of the syndic, it is worth noting
that if it were not for a direct bankruptcy, the trustee who is intervening in what is already an ex-bankruptcy (art.
64) will continue to operate in the bankruptcy, and instead, if we are facing a direct bankruptcy, the rules will apply
same notice periods and draw system as in the contests and what was explained earlier in
The matter of acceptance of the position is also valid in cases of bankruptcy. It should be noted the confusion that
it entails the wording of art. 253 section 7 when it orders the designation of a new trustee in bankruptcy for
non-compliance with the preventive agreement.

Both when a competition is declared open and when bankruptcy is decreed, the issuance of
various trades; but it is common that in competitions, the presentation of such trades and subsequent
The completion shall be the responsibility of the debtor, with the Syndicate limiting itself to the pertinent oversight.
However, in bankruptcy, it is usual for such burden to be fully met by the
The Audit Office will obviously have to report to the Court on the compliance with this obligation, through the
delivery of the relevant acknowledgment receipts.
To all communications established by Art. 14, the interception order must be added.
of correspondence and its delivery to the syndic, (art. 88, inc. 6°) although currently with the proliferation of
private mail distribution services are far from being effective
characterized it in the past, when only the Argentine Post existed, and to which must be added the
actual possibility of communication through electronic means.
Both in direct bankruptcy and in indirect bankruptcy, the publicity of the declaration of insolvency is carried out.
through charge-free edicts (the fact that they do not have to be paid immediately does not mean that they are
completely free, as the Official Bulletins of the jurisdictions in which it has been
Once the publication is made, the corresponding amounts will be presented in the file.
to be published in the legal publication newspapers of each of the jurisdictions where it has
failed establishments (art. 89), which becomes the only means of notice to creditors and third parties in
general, being one of the tasks of the syndic the enforcement of such publicity, not being
mandatory, as the Law does not require it, the sending of certified letters referred to in article 29 in the
contests, especially considering that in most cases it is not known for sure about that
height of the process who the creditors are.
The wording of articles 107, 109, and 179 involves a very delicate burden for the Trustee, as among the
The first tasks to be carried out include verifying the level of security offered by the premises in the
which were involved in the businesses of the failed company, as the custody and proper preservation of such assets,
effects of preserving its value, become the responsibility of the bankruptcy official, without prejudice likewise
to keep in mind that the fate of the fees of the trustee and other intervening professionals is
linked to the value obtained in the subsequent liquidation of such assets.
 In any case of bankruptcy, once the establishment is closed, one must proceed to
inventory the found assets, either through the syndic or the notary appointed for this purpose (art. 177),
and it is an important obligation of the Syndicate to adopt and implement the necessary measures for the
conservation and management of the assets under their charge (art. 179).
Regarding what should be done with the accounting books that may be found, contrary to what
what is stated in article 14, section 5 regarding competitions, in which case it is the Clerk of the Court who
intervenes such books, nullifying the blank spaces that may be found, according to the text of the article.
180, in bankruptcies, the trustee is the one responsible for such obligation.

There may be a possibility that among the seized goods there are perishable goods.
example, vegetables, fruits, meats, etc.), or goods whose storage cost is higher than the price of
to be obtained by them, these assumptions provided for in article 184, which authorizes the syndic in any
status of the case to request direct sale, at the price and in the manner considered most convenient for the
contest.
Unlike what happens in the contest, the trustee obviously sees their responsibility eased.
control of commercial operations, as bankruptcy leads to closure, except in cases of
immediate continuation referred to in articles 189 and subsequent ones, regarding the continuation of
the exploitation of the bankrupt company.
As a counterpart to the previously mentioned relief of tasks, your work is seriously overloaded with
the custody and execution of the assets, to which must be added the unavoidable fact that in most
in the cases of bankruptcy, and more frequently in direct bankruptcies, the trustee does not have assistance
from the failed party or its representatives, in order to receive the minimum necessary explanations that enable the
progress of their investigations. This forces the official to rule on the admissibility of important
credits, based exclusively on the documentation provided by the insinuating creditor, or to express an opinion
about the causes of the presentation, states of assets and liabilities, also based on various documents
arrivals by third parties.
Although Article 102 imposes on the bankrupt, their representatives, and the administrators of the debtor company, the burden
to collaborate with everything that the Judge and the trustee may require from them for the sake of clarification
the various situations that may arise in a bankruptcy, and even due to unjustified absence
if they can be brought by public force having repealed the possibility of ordering arrests as stated
The old article 107. Cases in which the entire procedure is very common in recent times.
The bankruptcy declaration petition is substantiated by the unfounded absence of the debtor, and upon being
the syndic appointed is without a social headquarters of the failed company and without their physical presence. In such
the case begins for the trustee a true detective activity in order to find the debtor, in the greatest
part of the time with negative results, and it is left to the logical criterion of the bankruptcy official, the
measures to request from the Court to achieve a successful conclusion in its investigation, not only with a view to
to locate the individuals responsible, but also to find assets that may still be held by
the failed or which, having been transferred to third parties, may still lead to possible actions of
bankruptcy revocation.
Obviously, at present, practically the entire population is registered, either under their number
of national identification document, CUIT or CUIL, which somewhat facilitates the detective work
of search for people.
As we anticipated, the work of the trustee in the first months of their appointment in any
bankruptcy is quite complex and delicate and it must be insisted that beyond the legal tools that the Law
put at your disposal, these should be used with rational and logical judgment, firmly but moderately,
carefully considering all legal forms, in order to avoid the accusation of having acted with excesses or with
prejudices, but we should not fall into accusations of having favored by omission or by
inaction of the debtor to the detriment of his creditors.

5. PERFORMANCE OF THE CONCURSUS TRUSTEE DURING THE VERIFICATION OF CREDITS

One of the topics where there are no differences, depending on the actions of the syndic in a
preventive competition when it operates in a bankruptcy refers to the preparation of reports
foreseen by Article 35 of the Bankruptcy Law, all of which refers to the task of investigating credit and
after the preparation of the report, but keeping in mind the differences marked by the legal regulations,
how would the treatment of foreign currency loans, updates and interest be, for example,
etc.
Foreign currency credits receive different treatment in bankruptcy than in insolvency; thus the
Article 127 establishes that claims in foreign currency are converted to legal tender in the
Republic, at the exchange rate in effect on the day of the declaration of bankruptcy or on the day of maturity of
the obligation (if it had occurred prior to the bankruptcy), at the creditor's option. On the other hand,
Article 19 provides that in the case of contests, the conversion of foreign currency shall take place at the
date of the presentation of the report provided by article 35, and it is only for the purpose of calculating the liabilities and
of the majorities. This means that while in the competition the obligation to repay the loan in
foreign currency, the obligation remains at the parity that results on the day of the relevant payments, in the
bankruptcy, is converted into national currency of legal tender, according to the current exchange rate
as of the date of the bankruptcy declaration.
In the topic of "interests," both in bankruptcy and in insolvency, they are suspended; in the first
if the interruption occurs on the day of the presentation (in this regard, the Syndicate must pay close attention
attention to this, as one of the most common mistakes made by creditors in their verification requests
it is to calculate the interest up to the day the contest opens, which is obviously different from the day of
presentation in competition), except for credits that have mortgage or pledge guarantees. In
In the event of bankruptcy, all interests are suspended on the day of the bankruptcy declaration, but the
compensatory amounts accrued after such date corresponding to mortgage credits or
pledges can be perceived up to the limit of the proceeds in the liquidation of the encumbered asset, but this
it will occur once the payment of the principal and other preferred accessories is completed

In order to the investigative task of the trustee, in order to determine the amount of the credit and its category,
what should be included in the individual reports to comply with Article 35, and given the
As provided in Article 200, Articles 33 and 275 apply fully, meaning that the Comptroller's Office has the
more varied tools in order to elucidate the truth of the claims and the privilege that eventually
it could correspond, and given its clarity we refer directly to what is expressed in items 1 to 4
of art. 275.
Regarding the deadlines for the submission of reports by the syndic and the due dates for
file objections and observations, and respond to them, are the same in the case of
contests like in bankruptcies.
In the new wording of theLaw 24.522and by application of articles 34, 35, 36, and 200, within the dates
limits provided in arts. 14 and 88, the syndic will receive (always in two equal sets) the insinuations of
the creditors, and after the deadline for their receipt has passed, such documentation for a period of ten
days must be available at the home of the syndic, to be reviewed by the debtor and creditors who
as they request. Always within the same ten-day period, the parties that consider themselves affected may
present in writing the original and two copies making the challenges or observations they make to
your rights.
The syndic must provide to the interested parties who have presented themselves, a certificate that proves the
receipt of the aforementioned documentation in which the day and time of the presentation will be indicated.
Evidently, the reception of such writings in the offices of the syndic has been likened to what used to happen
previously when they were presented at the Tribunal's entry desk.
Within forty-eight hours of the deadline for submitting challenges or
observations, the syndic must submit a set of copies of the received documentation to the court,
which is intended for the file provided in article 279.
Article 200 in cases of bankruptcy and Article 35 in preventive contests establish that in the
a period of twenty days after the deadline for the submission of observations or challenges,
The syndic must draft 'individual reports' for each verification request received, in each of the
which will be consigned:

a - full name of each creditor;

b - actual and established address;
c - amount and cause of the credit;
d - privileges and guarantees invoked;
e - review of the obtained information;
 f - observations that would have been received; and

g - informed opinion regarding the origin of credit verification and the privilege in the event of
having been invoked.
All individual reports must be accompanied by a copy intended for the file of art. 279, as
as well as a complete copy of the files prepared by the trustee.
Within ten days of the report being submitted by the Syndicate, the Judge must decide on
on the origin and extent of the requests made by creditors, such requests being final
resolutions for the purposes of the computation in the evaluation of majorities and the basis of the agreement.

The creditors declared admissible or inadmissible and the debtor in their case, according to articles 37 and
200, they have a period of twenty days following the date of the resolution provided in Article 36 to attempt
promote the relevant review incident.
We close this chapter with a reference to the novel (at the time) 'tariff' legislated in thearts.
32y200of thelaw 24.522. According to such legal norms, for each credit verification request the
the creditor will pay the trustee a fee of $50, which will be added to that credit, being affected by it
import the expenses that I requested from the syndic for the verification process and the preparation of the reports
promptly the syndicate must report to the Court, and if there is a surplus, it remains
how do I pay the account for the fees to be regularized for your actions.
Verification requests for amounts less than are expressly excluded from the fee payment.
$1,000, and those that have a labor matter regardless of the amount.
That tariff, at the time of writing these lines, has already been in force for more than 17 years without
any legislative amendment regarding its amount, although at the moment of writing these lines already
there are two legal precedents that authorize the trustee to receive an amount greater than the
established in the ancientslaw 24.522,and for the reader's knowledge, they are referenced at the bottom(9).

6. THE GENERAL REPORT PROVIDED FOR BY ART. 39

A lot is being written about the topic, and given the novelty of some of the clauses, for a long time
Over time, specialized literature must make contributions on the same, with noteworthy interest.
They deserve the same when it comes to the event carrying out the profession on such topics.

The spectrum of information covered by Article 39 is so broad, and the information is so complete that
It is mandatory for the Syndicate to provide that all doctrine agrees that said report is a
fundamental piece in the bankruptcy process, containing valuable information for parties
involved and Judge.
All the legal powers listed in the previous chapter are at the disposal of the syndic to
the concretion of such tasks, which fulfill each of the items of theart. 39 of thelaw
24.522It must be delivered in triplicate on the date set by express court resolution. One of the
Copies with judicial acknowledgment of their receipt must remain in the power of the trustee.

The general report can be observed by the debtor and by those within ten days of its submission.
they have requested verification. Such observations, according to article 40, are added without substantiation and
are available for interested parties for consultation, without prejudice to which, and despite the silence of the
art. 52, the Judge must take it into account when deciding the merits of a
homologation.
The simple reading of the ten sections that make up this article demonstrates that the trustee must have
a sum of personal knowledge and extensive technical preparation that allows him to express an opinion in a way
based on a series of facts and circumstances that encompass both the present and the past of
debtor, must issue an opinion on projections in the future, all the while knowing that their conclusions
will influence the creditors' voting decision and the subsequent approval decision of the Court.
The first section of Article 39 talks about the analysis of the causes of the debtor's economic imbalance.
For such a response, it is necessary to have financial statements covering the last years of activity.
commercial debtor, to which all other data that contributes to the development of their businesses must be added. With
from all this material we will be able to determine the endogenous factors that have led it to the crisis, but also
It is advisable to consider and keep in mind those exogenous factors that may be causative in
directly or in a combined form with the previously highlighted factors, of impotence
financial economics.
It is an impossible task to try to specify in these few lines what the most...
appropriate for determining the causes of the imbalance, as there are no two debtors exactly the same
equal, and each will present its particularities, with no exact formulas for such a task, nor
notwithstanding which it is advisable, to fulfill this clause, that the Syndicate study what has been the
historical evolution of the debtor and then through the application of auditing standards (and not forgetting the
valuable information that can be obtained through the study of verifying hints), and the
comparison of statistical charts on sales, purchases, capital contributions, capital immobilizations,
etc., reach the desired conclusions.
We don't always have material rich in information, and even in many bankruptcies, such information
does not directly exist, which is why in the event of such deficiencies and having exhausted the Syndicate, all
the means that the Law provides for you to request such data, whether from the debtor or from third parties,
you must inform it in the records, and, if applicable, make it valid in the other sections of article 39.
The correct completion of item 1 is an essential basis for the conclusions that must be drawn.
the Audit Office arrives to complement some of the remaining sections, as undoubtedly if it does not
if they knew the causes of the economic imbalance, one could not issue a well-founded opinion about the
period of cessation of payments or if acts have been carried out that may constitute facts included as
basis for accusations of fraud or culpability, nor whether there are acts that can be revoked.
Notwithstanding that in preventive contests the debtor, by application of article 11, inc. 2, will have already
explained the concrete causes of their current financial situation, and such explanations can very well
serve as a guide for the work carried out by the syndic, he must be very cautious in his assessments and
One should not be swayed by such explanations in which evidently the debtor tries by all means.
means of improving their situation in the process. Such caution from the syndicate must be reflected in their
report, since without prejudice to considering the figures that arise from accounting, they must be applied
minimum audit standards in order to have certainty about the goodness of the financial statements under review.
In cases of bankruptcy, where there is no accounting or administrative material whatsoever,
despite the searches that the trustee is supposed to have conducted previously, when reporting on the paragraph
1°, the activity carried out in search of reliable data must be clarified and in the absence of them
manifest the material impossibility of completing the aforementioned section.
The second and third paragraphs of article 39 talk about the detailed composition of assets and liabilities and require
that the Syndicate estimates the probable realizable values of each of the items in the assets.
In many cases, this is an extremely complex task for the syndic, as their responsibility as
Public Accountant does not include that of a valuation expert for various types of assets, and it is not always useful to consider.
the residual value of the asset according to accounting books, nor to take the catalog value of the asset
and applying a depreciation percentage; as we mentioned in the previous paragraph, it is also not possible.
list the different systems that may be applicable in each case and we can only insist on what
next:
a) The realization value is the sale value that can be obtained from the asset if it were sold in its current condition.
what is found and at the time of drafting the report.
Certain equipment or machines may have variable values depending on whether they are sold in bulk (for
example of a complete production line), than if it were sold machine by machine; if that is the
This situation should be made explicit and both types of values can even be recorded.
c) In the case of complex manufacturing establishments or significant real estate, it is lawful to resort to,
prior authorization from the Court, to experts in each of these fields, who will take the
responsibility for the appraisal, and its fees must be set at the time of Article 288.
d) The syndic must always visualize the asset to be appraised before conducting an evaluation, whatever it may be.
location of the same, and such acknowledgment must be carried out in advance of the expiration
of the general report, in order to have time to request the complementary measures that were
necessity.
But the valuation task is not limited only to assets in use, or to investments.
real estate agencies, since everything mentioned earlier can also be applied to goods for exchange.
 Regarding the receivables, the advisable auditing standards should be applied for purposes
to have certainty about what will be reported, as well as the punishment to be carried out in anticipation of
uncollectible or delinquent.

In accordance with the valuation opinion of the Intangible Assets Syndicate or deferred charges, how could
being "business key" or "organizational expenses" must apply very strict and restrictive criteria, since
Any request for bankruptcy is a conditional request for insolvency, and in the event of failure, there is a series
of asset items that will maintain their value while the company operates, but once it falls,
bankruptcy, the chances of recovering any value are remote.
This detailed study of updated values carried out by the bankruptcy official shall serve:
1) To the debtor himself, who will become aware of what the valuation of his assets is, in the eyes
of someone who, acting with professional judgment, has no connection whatsoever with the company.
2°) To the creditors, so that they become aware of whether there is recovery capacity and what their
probabilities of recovery of the granted credits.
3°) To the intervening Judge, in light of the provisions of Article 52.
Regarding the liabilities, the trustee must state the following conclusions clearly.
differentiated:
a) Liability that has been advised to verify at the opportunity of art. 35, the details of which have already been added to
cars at that opportunity, which is why at this stage totals must be recorded with the
classification of the recommended privileges.
b) Liability reported by the debtor, with such pseudo-creditors not having exercised the right that they
agrees with Article 33, but keeps its rights to attend to verify by incident, in
So that your credit does not expire.

c) Liability that has been expressed in the opportunity of art. 32, and that was discouraged by the
Syndicate, but whose final resolution is pending decision from the Court.
d) Undeclared liability by the debtor, who has not exercised the right in the opportunity of article 32 and that
outside detected by the Trustee and retains its rights to attend to verify by incident.
e) Post-bankruptcy liabilities.

The fourth paragraph of Article 39 refers to the enumeration of accounting books, requiring
likewise, a report from the syndic regarding the regularity or deficiency that may have been observed and the
compliance with certain articles of the Commercial Code.
No one is better suited than the trustee to comment on this topic, as their role is that of a Public Accountant.
it qualifies him for such a decision, and we understand that such an opinion must even extend to report on
the goodness of the chart of accounts and accounting system that the debtor has implemented, as it
makes for a correct presentation of the business management and aligns perfectly with what is stipulated by
theart. 43of the Commercial Code.
In the applications for opening the preventive contest, article 11, section 6 already determines that the debtor must
list your business books, state the last used page, and make them available to the Court along with
with the documentation that supports it already when addressing article 14, paragraph 5, that is, when we talk
from the opening of the contest, it is provided that within a peremptory deadline the debtor must present their books to
disposition of the Court, for the pertinent intervention and annulment of blank spaces. In the bankruptcy in
change, according to article 88, section 4, it is provided that within 24 hours of having been notified, the bankrupt
You must deliver your commercial books to the trustee, and we have already referred to this earlier.
As can be appreciated in both cases, both in the case of bankruptcy and in the case of insolvency, the legislator
assigns a great deal of importance to accounting, and in truth, it cannot be otherwise, since
in addition to the information that the Syndicate may obtain from the debtor's files, or from the study of
documentation that creditors can provide, the accounting records are a support column
central to base the studies and reach conclusions for the relevant reports.
Theart. 44The Commercial Code referred to in section 4 of article 39 refers to the two books.
that every merchant must necessarily keep, namely, the Journal and the Inventory book.
balances, without prejudice to other optional books that may be necessary; but what is worth highlighting
the Commercial Code requests that the accounting and supporting documentation 'result in
clarity of the acts of his management and his financial situation.
 In strict truth, it would be necessary at this point in the 21st century, where cybernetics plays such a role
fundamental in the field of files and information, that the legislator would modify such writings bringing
the same to a language in accordance with what today constitutes "accounting records," since the old books
Hardbound volumes are disappearing and giving way to tapes, diskettes, compact discs, and pen drives.
drives, etc., which have not received any mention so far in thelaw 24.522still with its current ones
amendments.
Theart. 51The Commercial Code speaks to the need for the veracity and accuracy of the balances.
that must be compatible with the financial situation as of that date.
As will be appreciated through this brief summary, upon fulfilling subsection 4 of article 39, the syndic has
occasion to put into use a whole series of technical knowledge that you will have acquired throughout your
work experiences, to which specialized studies carried out must be added, and this
will be reflected in the relevant report. That is to say, we are facing a comprehensive audit of the
debtor, a task that is not easy considering that contrary to what happens, when the
the certifying accountant encounters a company 'in bonis', in which, as a general rule, the collaboration
and the opening of the records is extensive and complete, in bankruptcies generally, such collaboration
it is rarely lent and in the contests, although the syndic is faced with valid interlocutors, the
limited time he will have, given the rigidity of the procedural deadlines and the randomness
collaboration that may be received, are high-risk factors that the syndic must always consider
presents.
Furthermore, it must be added that one does not always have the cooperation of courts that may be
agile in the provision of the orders that the trustee may make.
The fifth section of article 39 refers to the debtor's registrations in the corresponding records, and
identical requirement for companies with indication of the personal data of the partners with
unlimited liability and administrators. Complying with this requirement, although it may become
It may be long and tedious, but it is simple from a purely formal point of view, for which one must have the
Given the entirety of contracts or corporate bylaws, for the respective referencing, as well as
It is essential to thoroughly review the minutes books to determine unequivocally who.
they are the administrators, also to be understood as such the attorneys with signing authority, whether
whether or not they are partners or shareholders of the debtor (let us not forget in this regard that the responsibility of a
The proxy, in terms of their business management, is similar to that of a partner or company director.
It should be clarified that at this point in the report, the trustee should also refer to the
opportunity for registration, as well as providing clear and concise information about the content of
each of the referenced documents.
We consider it very important to inform about the updated addresses of those responsible.
that we come to identify, for in the eventuality of negligent attitudes or lack of collaboration
From such administrators, all notifications and requests for information must be sent to their address in this.
denounced item, all this without prejudice to the new addresses that the trustee may come to know.
The sixth paragraph of article 39 asks us to express the time when the cessation of payments occurred,
with precision of the facts and circumstances that support such ruling.
This information is of vital importance in many aspects concerning the validity of
certain acts and the judgment of the conduct of the administrators in the event of malpractice
of the same, and it is not easy to determine, quite the contrary, we think that given that it is a
such vital information that, as we mentioned previously, leads to the ineffectiveness of rights, must be a
conclusion that is sufficiently considered and well-founded and that has supporting documentation, which can
serve as a basis for later defenses.
Master Héctor Cámara says that 'the economic or de facto bankruptcy never coincides with the bankruptcy of'
right(10), and this is true, because the merchant, even in the face of economic and financial impotence,
tends to cling to any lifeline and for this reason, in almost all cases, the cessation of
payments are made well in advance of the date of the opening order for the contest, or to the date of
bankruptcy declaration.
A solution that does not require a deep analysis for the Syndicate would be to verify what is the earliest date
the date on which the debtor has breached an obligation and set such date for legal purposes: it would be
the easy solution but let us agree that it is not the technically correct solution. As much as the legislator
it is expressed in terms of 'era' and not 'date'; this implies that the trustee must deepen their study
about the accounting and files of the debtor, in order to be able to precisely establish the
initiation of the insolvency phenomenon.
Experience teaches us that in most insolvency conflicts, the merchant, by not
to be able to normally meet their obligations, falls into the vicious circle of requesting "fresh" loans in order to
attending to the overdue, turning their liabilities into a true snowball, which ultimately becomes an avalanche.
This incorrect procedure sometimes has the complicity of the creditor, who seeks to improve their
guarantee, and sometimes it is done without the creditor's knowledge, who is deceived with financial statements that do not
they sympathize with reality, or simply fall into the seduction of the debtor who manages to convince the
third parties regarding the solidity of your company.

The truth is that between the date of cessation of payments determined by the trustee and the date of submission
or bankruptcy, the 'period of suspicion' is created (art. 116 'in fine'), and any of the transactions carried out
between said dates, in principle, they could fall under actions of revocation or unenforceability.
Given the absence of accounting technique rules or pre-established parameters for the determination of the
period of cessation of payments, such determination is left to the sound judgment of the bankruptcy official
always within the specifications outlined by article 79 (the latter article allows for other facts
revealing, which will have to be determined in due time), and the retroactive limit of art. 116, and can be
observed, according to article 117, by the interested parties (given the lack of clarification of the legal norm, it must
understood as debtors and creditors). Once set by the Court, it is appealable.
The seventh paragraph of Article 39 refers exclusively to the case of companies, where the trustee must
inform whether the partners made their contributions on time and if there is any financial liability that they have
may be held accountable for their actions in such capacity.

This information becomes very important in those societies where the partners have their
limited liability to their contributions, if we read article 150, which states that bankruptcy of the
society makes the unpaid contributions by the partners enforceable, as well as what is provided by thearts.
37to the53from theLaw 19,550(Corporate law.
Unless there was an overvaluation of the contributions in kind to the failed company, this being evidence that
it could have certain complications, the other implications of this section are relatively easy for
to be detected by the trustee.
The eighth section of art. 39 requires the specific enumeration of the acts that are considered susceptible to
be revoked, according to the provisions of articles 118 and 119.

We must refer to the detailed reading of Article 118, which exhaustively lists the acts that are completely
ineffective against creditors, and in turn, article 119 talks about those acts that, if certain conditions are met,
premises, such as having knowledge of the state of default, which can become
declared ineffective. Although the clause we are discussing does not mention it, we understand that
to be a preventive contest and for the debtor to have fallen under the provisions of articles 16 or 17, this as well
It should be considered by the trustee at this stage of the general report.
The ninth paragraph of article 39 refers to the reasoned opinion that the syndic must provide regarding the
grouping and classification that the debtor has made regarding the creditors.
For a clearer understanding, we must refer to the text of Article 41, which orders the debtor to, within
Within ten days of the issuance of the verification order of art. 36, a proposal must be submitted.
grouping and classification into categories of those creditors declared verified and/or admissible.
Let's agree that such a deadline does not reveal a whim of the legislator but, on the contrary, it is necessary that the
The debtor should know the exact legal composition of their liabilities, so that in case they consider it necessary
(since categorization is not mandatory) can create different categories, with a view to the future proposal.
okay.
With this, the legislator completely breaks with the 'par conditio creditorum' as it was known during the
validity of law 19.551, meaning that there was a single proposal for all unsecured creditors,
without caring for its quantitative or qualitative importance of credit. With a modern criterion and above all,
realistic, it is accepted that there are significant differences, both in quality and in numbers, and to consider it this way
necessary for their interests, the debtor can make differentiated proposals, doing so
groupings and classification of creditors, and the passage of years since the enactment of thelaw
24.522With such a brand new system, it has increased the ingenuity of the merchant, existing in this regard.
numerous examples of groupings that we could call highly speculative ingenuity, but it is
It is necessary to emphasize that, at a minimum according to article 41, three categories must be considered.
knowledge: unsecured creditors, labor unsecured creditors (provided that they exist) and privileged creditors.
 The bankruptcy trustee is the professional called to opine on the legal and economic soundness, in light of
all the interests at stake from the categorizations proposed by the debtor. In order for the trustee to make a decision.
in a well-founded manner regarding this, it must engage both its legal knowledge and its economic knowledge
financial, as basically the debtor must be required to respect the rights of their creditors and a
logical coherence and in accordance with the interests at stake.
Always within the analysis of the legal novelty introduced by theLaw 24.522 about the
"categorization" the last paragraph of article 41 legislates about the so-called "subordinated credits", it is
to say, a new category for those credits that suffer some type of postponement in their rights
relation to other credits.
Finally, the tenth paragraph of art. 39 requires the trustee to report whether the debtor is liable for
legal procedure provided for in Chapter III of theLaw 25.156of Competition Defense, for being
understood in article 8 of that standard.

7. THE PROPOSAL FOR AGREEMENT

We have already briefly analyzed the activity of the trustee from the moment they accept the position.
until the stage in which you have already submitted both reports, both the verification report and the so-called report
general and the extensive text of art. 43 that introduces us to what has come to be called 'period of'
exclusivity" (which can cover at least 90 days, extendable only by judicial resolution to
30 more days, of course always working days), this period that the debtor must use to formulate the
proposals for agreement and fundamentally to obtain the relevant approvals from their creditors.
Although this article has a close relationship with Article 45, it is of utmost importance to highlight that the
Article 43 contains a wide assortment, we could say, about the conditions that must be included in the
proposals, there is a vast jurisprudence on this matter, the mention of which would far exceed the
the purpose of this work, but it is no longer the limited range of options of laws that have already been repealed, such as
whether the removal or the waiting, but rather the simple reading of the current wording of the aforementioned article 43 reveals to us
a broader range of alternatives that the trader can choose from, although, always within
the absolute respect for the maximum equality within each category, which we emphasize, does not mean
equality among all categories.
The jurisprudence regarding the 'goodness' of the proposal, its limitations, whether it is or
not unfeasible, if it is considerate of the reasonable financial economic possibilities of the debtor, everything
This is and continues to be difficult to define, given that the Judge does not always request the opinion of the
trustee (unfortunate since it is assumed that no one is more expert than that official to provide a
reasoned opinion based on professional experience acquired through long studies) and for
which inevitably requires resorting to the jurisprudence that is issued daily on this topic.
We have always expressed that it is unfortunate the suppression that the legislator carried out when sanctioning
theLaw 24.522and not reproduce in it the terms of inc. 6 of art. 40 of law 19.551 that obligated the
trustee to issue a reasoned opinion on the possibility of compliance with the proposed agreement and whether it
was susceptible to improvements.

8. INTERVENTION OF THE BANKRUPTCY TRUSTEE IN INCIDENTS AND TRIALS RELATED TO THE BANKRUPTCY
The syndic, during the performance of his duties, must intervene as part on numerous occasions.
obliged in different types of judicial proceedings, more frequently in bankruptcies and in few instances
opportunities in the preventive contest.
Before proceeding, it should be specified that the trial is a request or petition that is made before the
Judicial Power, represented by the judges, in which a judicial resolution is required in order to the
requests that are made; regarding ordinary processes, and for a better understanding by the reader
we must refer to article 330 of the Code of Civil and Commercial Procedures of the Nation, and
subsequent and, on the other hand, incidents are defined by article 175 of the aforementioned Code,
as any issue that has relation to the main object of the lawsuit and is not subject to a
special procedure, will be processed in a separate piece, in the manner provided by the provisions of this
chapter
 Both in acting in contests and in bankruptcies, in addition to the activity that the trustee carries out in the
main vehicles, if the verification reports submitted at the opportunity of art. 35 are observed, with
Such written reviews will constitute the incidents provided for in article 37 of the Insolvency Law; in this way
opportunity, the Syndicate, mandatory party, will be limited to responding to the transfer that has been made to it,
the deadline set by the aforementioned legal norm must inevitably be respected in other matters.
During the development of the preventive contest or bankruptcy, not all circumstances can be anticipated.
that may give rise to the formation of incidents of the most diverse nature, and article 273 legislates in its nine
clauses regarding the mechanics and timelines of such processing that also have a clear description in
articles 280 to 284, which are complemented by the clear provisions of articles 285 to 288, and to whose texts
For its clarity, and in order not to delve into repetitions, we refer to it. It is very important for the official.
In bankruptcy proceedings, it should be noted that, unlike the procedure in ordinary claims, in incidents...
Evidence must be presented either when the incident is initiated (in the event of being the actor), or when responding to the transfer.
(in the event of being sued), as well as in both cases provide the documentation that
back the statements. In those aspects not covered by theLaw 24.522one must adhere to the letter of the
articles 175 to 187 of the Code of Civil and Commercial Procedures.
In the development of the bankruptcy process, incidents are formed more frequently.
thus it is prevented that issues related to the failure hinder or delay the measures that are
They are adopted in the main file, with no other limitation for the formation of such incidents than
those that the Court may order. A clear example of this are the incidents that are usually formed for
the monitoring of the liquidation of the assets; that is, in order to allow the formation of an incident,
It does not necessarily have to deal with controversial facts in which there are two or more opposing parties.
In our humble opinion, it is regrettable that theLaw 24.522they have suppressed everything related to the
rating of the conduct of the bankrupt, its administrators, representatives, and accomplices.
In the incidents that arise during the development of the preventive contest, the insolvency trustee
will act in compliance with the duties imposed by Article 254 of the Bankruptcy Law. In bankruptcy, it
apply in this regard articles 107 and 109, which legally empower the syndic to act in
representation of the debtor, since the latter, by application of article 107, becomes dispossessed, that is,
the trustee acts as the representative of the bankruptcy. The fact that article 252 establishes that the function
the syndic is 'indelegable', and article 258 teaches that the syndic 'must act personally' does not mean
that I must always act personally in all lawsuits in which bankruptcy is involved or
contest, and although the aforementioned art. 258 "in fine" authorizes the judge to give his consent so that the
the syndic may appoint a representative in proceedings outside the jurisdiction of the Court, in cases
properly grounded, whether by the scope or the accumulation of tasks that may weigh on the
It is appropriate to request the same authorization in order to appoint a legal representative.
One of the most common examples in this regard occurs in those bankruptcies with a high number of
employees, who almost simultaneously initiate labor lawsuits against the failed company, causing that
the trustee receives a true avalanche of summonses for personal hearings before the courts of
Work and that do not always have their headquarters in the same city where the Court that intervenes is located
the bankruptcy or insolvency. Such a circumstance must be brought to the attention of the Judge before whom it is present
Once the bankruptcy is established, in order to request authorization to grant judicial power to one or more lawyers.
for the proper attention to labor conflicts.
This delegation through power should not be confused with the legal sponsorship referred to in the article.
257, it is important to highlight that although in bankruptcy and insolvency, the trustee does not necessarily have to
having legal sponsorship becomes something more than necessary when one has to go out to litigate
outside the jurisdiction of the court where the bankruptcy proceedings are filed.
By application of Article 132, the declaration of bankruptcy brings to the court where the insolvency is being heard, all
the legal actions (regardless of the jurisdiction in which they are originally being processed) initiated against the
failed, in which patrimonial rights are claimed, but the ones indicated in article 21 are excepted.
paragraphs 1 to 3 of the Bankruptcy Law.

9. THE SEIZURE, CONSERVATION, AND ADMINISTRATION OF PROPERTY

Theart. 177of theLaw 24.522in its various sections, it determines the activity that the syndic must develop
in the face of a bankruptcy decree, and obviously, just as the title of Chapter IV of the Law states literally,
in the face of the void created by the disempowerment suffered by the debtor, a responsible party should emerge, both
for the seizure as well as for the care of the different values whether they are material or immaterial. A
In this respect, and always adhering to the wording of the above-cited article, the specification of the 'closure'
it can be carried out under the responsibility of a Justice Officer, or by the acting magistrate in
From the standpoint of practicality and speed, it can invest the syndic with the rights and powers of the 'Official.
of justice" and for this it may or may not be necessary to have the assistance of public force.
But the most significant task and one of undeniable responsibility for the Syndicate is the completion.
compliance with the provisions clearly stated in paragraphs 1 to 3 of the article under study. It is impossible to be able to
to express in a post all the unforeseen circumstances that may arise in such a delicate task
from the Syndicate, and for better performance, common sense must prevail, always aiming to maintain
the state of preservation and the careful guarding of the elements to be safeguarded.
One of the related problems that may occur when closing a business is that of
perishable goods (for example: livestock, fruits and various vegetables, dairy products, etc.)
in which case article 184 is strictly applicable, to whose clear wording we refer. It is important
to add in this regard that in the case of a material impossibility to produce perishable goods,
and always with the appropriate judicial permission, such perishable goods may be donated to institutions of
public good.
Regarding the 'competition funds', the complete compliance with Article 183 leaves no doubt, and
if there is any type of negotiable value maturing on a future date, with the relevant communication to the
Court, it is advisable to turn to banking institutions for your subsequent collections (see regarding this
art. 183 'in fine).
Beyond the novelty that it has introduced thelaw 26.684to which we refer in more detail, lines
later and according to what is stated in articles 189 to 195, the Trustee can continue with the
exploitation of the entirety of the failed company or with partial businesses or establishments, all of this
indefinitely, just like theLaw 24.522 and its modifications indicate it, with authorization and oversight
permanent judicial, but permanent with an eye on a final liquidation, for otherwise we
we would be dealing with the 'business of the bankrupt company', which is not acceptable from any point of view
admissible.

10. SPECIAL ASSUMPTIONS AND LIQUIDATION OF THE COMPANY

First, we will refer to the "special assumption" regulated by article 48, which is incorporated into
articulated of the Law, by reform arising with Law 25.598 and which has been received in doctrine and jurisprudence
the name "cramdown" inspired by the precedents of the Anglo-Saxon legislation. Until the sanction of this
final Law, not having obtained the required percentage of compliance by the Law to approve the
agreement, the declaration of bankruptcy was automatic and under the direction of the Syndicate and oversight of the
Court, the liquidation process was to begin as urgently as possible (obviously
as long as a provisional continuation has not been decreed, to which we have referred to with
anteriority).
The much-talked-about article 48, about which so much has been written since its promulgation, basically states
that for the case of limited liability companies, stock companies, companies
cooperatives and those in which the National, Provincial or Municipal State is a part and with the express
exclusion of persons regulated by special laws that are detailed in the aforementioned legal norm;
once the exclusivity period has expired and without having obtained the approvals from the creditors to the
agreement proposal, bankruptcy is not decreed (as was required until said reform) but rather by the
On the contrary, a "register" of creditors and third parties interested in the acquisition of the shares is opened or
representative shares of the share capital for the purpose of formulating proposals for preventive agreements
(obviously, and there is no doubt about it, that if such a 'registration' has no interested parties, the declaration of
bankruptcy is automatic.
It continues stating the lengthy wording of the aforementioned article, which, if there are registered individuals in the registry beforehand
mentioned, the Judge must appoint an 'evaluator' who, within thirty days of having accepted the
cargo must submit its valuation report. It should be emphasized that until the sanction of thelaw
25.589the figure of the evaluator did not exist and this legal norm amends article 262 of the procedural law, legislating
Regarding this, the list of evaluators will be formed by the Court of Appeals, every four years (in
in accordance with the dates on which the lists of trustees are prepared), but unlike
legislation regarding university degrees and seniority in the exercise of the profession that is mandatory
it must have a trustee, in the case of evaluators only 'audit studies' are accepted with
more than ten years old, and investment banks and financial entities are also accepted
authorized by the Central Bank of the Argentine Republic, always with a minimum of ten years of
antiquity.
Another novelty in this regard is that chance no longer plays such an exclusive role as in the case of the
bankruptcy trustees, since the control committee (we refer to the previously called creditors' committee)
proposes the list of evaluators, from which the Judge selects the 'evaluator'. Such functions are
paid based on the regulation set by the Judge in charge of the competition and unlike what
This happens with the remuneration of the syndic, which is based on the economic values at stake, in the
In the case of the evaluators, it is based on the work actually performed.
Based on the aforementioned 'valuation' report, the Judge sets the value of the shares in an unappealable manner.
or shares representing the social capital of the debtor, on which the offers must be based.
those previously registered in the aforementioned 'registry'. As can be inferred from it
As mentioned, the system is quite complex, and up to now it has not had a high degree of acceptance among
possible interested parties in acquiring a terminally troubled company, although it is still premature to comment on the
result of the new modifications introduced to the system by theLaw 26.684to which we will refer
lines further on.
In the event that the liquidation of the company is decreed, we must refer to what is legislated.
in thearts. 203to the217from theLaw 24.522and subsequent reforms, and in this regard, the three sections of art. 204 are
sufficiently clear and precise and even the order of the three sections of such legal norm cannot be criticized
some, since they respect the expectations of compensation for creditors. Thus, the aforementioned article
Legislate the following order of preference for the realization of assets:
1st the alienation of the company as a unit, which obviously does not deserve any criticism, as it is of
assume that a company with all its assets, such as the property or properties in which it operates,
its machinery and vehicle park, the raw materials or manufactured goods that may
to exist at the moment of insolvency and other material goods, obviously if found to be in good condition
of functioning, they can be of great interest to the investor interested in it;
It concerns the same set of goods mentioned in the previous clause, but with the difference that it does not
the continuation of the company's operation is planned; and finally
3rd the singular alienation of all or part of the assets, that is what is commercially referred to as the
scrap yard of the company.
Further down in Article 205, in its lengthy text, as it encompasses ten sections, it legislates in detail.
regarding the procedure to be followed in the divestment of the failed company, and in Article 208 the legislator
instructs about the singular sales of goods. Finally, in art. 213 legislation is made regarding 'sale'
directly, that is to say either due to the failure of the implemented sales systems in the
aforementioned articles, or due to the low value of the goods to be produced, they can be sold in
direct form. Finally, Article 214 states that unsellable goods may be delivered to
public welfare institutions.
The corollary of what has been exposited here is that there is a mandatory intervention of the syndic, who in all
his steps must have the pertinent judicial approval and the procedure must always have the
due publicity.

11. ACTION OF THE BANKRUPTCY TRUSTEE IN THE ASSET LIQUIDATION STAGE

One of the objectives sought in bankruptcy is to achieve an orderly liquidation of the debtor's assets.
within the best economic and financial conditions that the market allows, in order to proceed
subsequently to the distribution of the proceeds among all verified creditors, within the
ordering of corresponding privileges.
It is also important for the trustee to advise on the method that may subsequently yield the best results.
revenue, as for the time of the regulation of their fees, they will be a percentage of the earnings
of such settlements.
 The issue of asset liquidation in bankruptcy has two aspects: one refers to the timing.
in what such assets must be realized, and the second refers to the way in which the assets of the bankrupt
They must be settled. While a first reading might suggest a straightforward application of the provisions of the Law,
in an economy with such drastic changing characteristics as the one that prevailed in our country until
Recently, subjected to unpredictable political fluctuations, they shape a landscape in which the syndic is
forced to move, showcasing not only their legal knowledge but also their
aptitudes and capabilities of a good administrator.

11.1. Opportunity of the liquidation

Regarding the opportunity for realization, articles 203 and following apply, being the
first condition within a typical bankruptcy process, that the liquidation of assets cannot
to commence in the event that an appeal for reinstatement has been filed against the bankruptcy ruling,
has been admitted by the Judge the conversion in the terms of article 90, or the continuation of has been resolved
exploitation in accordance with the provisions of articles 189 to 191 inclusive.

The previously stated has undergone a significant modification with the sanction of thelaw 26.684what
substantial modifications to the texts of articles 190 and 191 of the procedural law as it introduces
preferences in favor of worker cooperatives that may be established due to the bankruptcy
from his employer.
Article 184 refers first to perishable goods, or in similar conditions, according to what
we will explain below, and taking into account the provisions of art. 177, that in a manner
immediately, once bankruptcy is declared, there must be a seizure of the bankrupt's assets, and that
according to article 179, it is the trustee who must take the necessary measures for conservation and
management of assets. The latter must evaluate according to what is established in article 184 if the
circumstances of existence of perishable goods (for example a stock of vegetables or meats), or
of costly conservation goods (for example elements deposited in open spaces, whose cost
The surveillance cost can be very high compared to the possible realization value) or finally of exposed goods.
due to price decreases (for example, a seasonal product).
Article 184 also considers cases where there are no liquid funds, but there are assets, and that
It is of utmost necessity to face immediate expenses that are essential for the orderly conduct of the process.
example, the need to cover transportation expenses or organization of goods; or the need
to have specialized technical staff for certain tasks). In such circumstances, the syndic once
Considering the urgency and with the consent of the Bankruptcy Judge, a direct sale may proceed.
of certain goods, either directly or through any of the other systems outlined in the Law of
Bankruptcies, and this continues until there are sufficient funds to cover essential expenses.
The natural director of the process, that is, the Judge, is generally not in a position to appreciate such
emergencies or needs and, consequently, only the Trustee, who must have sufficient
insight to assess and evaluate the urgency, is the one who must take on the responsibility of formulating the
requests that correspond.

11.2. Forms of liquidation

Thelaw 24.522and its subsequent reforms talk about the 'preferred way' of doing things, and first
This is a place to analyze what is provided by art. 204, section "a" which refers to the alienation of the company as
unity.
It is useful to keep in mind that such alienation does not constitute the typical case par excellence in bankruptcies, since
For that to happen, the Judge must have previously ordered the provisional operation of the company.
despite the state of insolvency. With this procedure, the 'source of work', even with limitations, remains
preserved, thus achieving a social objective of high human content. It is also important to note that
In manufacturing establishments, there is inevitably a deterioration of the machinery park due to lack of
maintenance, or there are 'unexplained disappearances', which is somewhat avoided by
the maintenance of the factory's operation, while maintaining the supply line and the
client portfolio.
 Always within the analysis of article 204, clause 'b' refers to the joint alienation of assets.
that integrate the establishment of the failed one. Here the difference between 'company' and
establishment. The "company" is the economic organization in a global form, and on the other hand, the
"Establishment" is one of the many units into which a company can be divided; it serves as
example, a failed venture that has a manufacturing establishment and outlets for its products in
various places, and in that case, the manufacturing establishment plus all of its outlets would be the
company
establishments
Continuing with article 204, in its section 'c' it expresses about the singular alienation of all or parts
of the goods, which clearly constitutes the simplest thing, as it would consist of the total disarmament of the unit
economic and its sale in the form of individual constitutive elements.
Having clarified the preferred order of execution, we will focus on the two systems.
mainly stated in the Law, for this purpose, which are the bidding and the auction, prior valuation of the
same.

11.3. Sales by the bidding system

The bidding sales system, explained in article 205, sections 3 to 8, is considered by many
authors as the most suitable in the sales of establishments, or companies, from medium to large,
it is also the system that demands the most work from the trustee, as opposed to what happens with
intervene auctioneers, it is the trustee who must take care of suggesting the best advertising, of contacting possible
acquirers in order to interest them in the business being offered, as well as to draft the specifications to which
refers to paragraph 3 of article 205.
It has the obvious advantage of making it difficult to form "buyers' leagues" which are so common in the
public auctions.
The particularities of sales by tender are explained starting from the third paragraph of article 205, beginning with
assuming that the appraisal referred to in the first part of the aforementioned will have already been completed
article. Then, it is the task assigned to the syndicate to prepare the relevant terms of reference, which
It must contain the formalities explained in the third paragraph of article 205. As for the content
from sections four to eight, are so clear that in merit of brevity, we understand that they do not make
additional explanation necessary.
It is interesting to note that the terms of reference often, with the prior consent of the Tribunal, are
sold to those interested, achieving a dual purpose: to recover at least partially the
costs of drafting the documents and the advertising referred to in the fourth paragraph of article 205, as well
also limit the operation to those truly interested in the proposed operation. Obviously, the funds
Thus collected must be deposited in the bankruptcy account and at the order of the Court.
relevant.
Although the Bankruptcy Law does not impose it as a condition, it is normal practice that once opened the
envelopes and made public the bids, the bidders in the tender can improve the offer within the
deadline that the Court has previously set, and in this way it gives rise to a bidding similar to that which is
produced in the auctions, but with the important difference that it will be the Judge himself who
will lead the procedure.

11.4. Sales by the auction system

Theart. 208 of thelaw 24.522it explains to us very clearly that the 'singular sale' or the classic one
auction, is carried out by a specially designated auxiliary of the Justice, that is, the 'auctioneer'.
the Federal Capital, the National Chamber of Appeals in Commercial Matters by means of agreements, and just as
It happens with Public Accountants to access the position of liquidators, the conditions have been regulated.
that must be fulfilled to be designated as 'alienator' in that jurisdiction, as well as the requirements that
Judges must make the relevant appointments, and the opportunity in which such officials
they will be able to perceive their commissions on sales.
 The aforementioned article 208 also talks about the publications that should be carried out, being
It is important to highlight that the syndic may make all kinds of proposals in this regard, whether regarding timeframes.
advertising, as to forms and means of communication to be chosen, and likewise may express opinions about
the base fixations.
From the provisions of the Insolvency Law, there is no provision regarding any obligation that may arise.
to have the syndic personally attend the auction event, but a minimum sense of
professional responsibility indicates that said official must be present at the auction event, given
account of the different maneuvers that, with or without the complicity of the auctioneer, are sometimes perpetrated at the event
at the auction.
Once the auctioneer provides documented accounts of their management in the records, the syndic must issue a statement.
about the goodness of such accounts, as well as whether it concerns amounts of certain relevance, to request their
immediate investment in order to obtain some return from these funds.

11.5. Direct sales and unsellable goods

Regardless of immediate sales in the form of direct sales of perishable goods, or that they are
necessary to raise funds quickly or the costly conservation ones, which we are already
we have referred, it should be considered that theart. 213from theLaw 24.522,talks to us about 'direct sales' that
can be carried out, either directly through the trustee, through intermediaries or institutions or
specialized markets (which is very common when there are securities subject to public offering,
as provided by article 215).
Lastly, it is worth mentioning goods of very little value or those declared unsellable. In such
Assumptions are the application of article 214 which states, in the face of the possible existence of assets of such value
insignificant that presumably do not even cover the costs of mandatory advertising, that the Court
may be disposed of, after consultation with the trustee and failure, that such assets may be donated without charge to institutions
of public good.

12. FINAL REPORTS AND DIVIDEND DISTRIBUTION

One of the most important purposes of the bankruptcy institution is to achieve a realization of
as quickly and orderly as possible the debtor's assets, in order to distribute the proceeds from it
realization among all creditors who have previously obtained the verification of their claims,
respecting the priority of collection of the same, which arise as a consequence of the privileges that
the law agrees and satisfies the expenses that the bankruptcy process has incurred.
All of this is governed by articles 218 to 223 of the Bankruptcy and Insolvency Act, although in what
the immediacy of payments is respected, it must also be taken into account what is established in articles 240 and 241 of the
The aforementioned law, which refers to credits with real security, as well as the jurisprudences of the
Supreme Court regarding prompt payment in favor of labor creditors, currently ratified
in the new wording that theLaw 26.684print article 16, as well as it must be taken into account
reserves assigned in article 244.
From the examination of the aforementioned articles, it follows that there may be three moments of payment:
a) For pledge and mortgage creditors, through the system of 'special concurso' (see art.
209) which requires prior verification of both the amount and the privilege held by the creditor, the
auction of the encumbered asset and the prior reservation of the sums necessary to attend to those
creditors who have a better privilege than that of the mortgage or pledge creditor, not being able to exceed
preferential payment to what is effectively obtained from the sale of the guaranteed asset.
b) For all creditors, whether privileged or ordinary, the final payment of the bankruptcy dividend,
once the final report of the trustee is approved.
To the above, the 'complementary distributions' referred to in the article must be added.
222, that is, as the title itself indicates, it concerns those funds that were disaffiliated from reserves, or
Amounts that for any reason are received after the submission of the final report.
 As a preliminary step to the final distribution, the trustee must fulfill the requirements of the 'final report'.
with the specifications established by article 218, and the next procedural step consists of the regulation of
fees in accordance with the provisions of articles 265 to 272.
The payment method is explained in Article 221, the most common being via judicial check.
subscribed by Judge and Secretary. If expressly requested by the beneficiary creditor, the Court may
order the Judicial Deposit Bank to transfer directly to the account of the creditor who requests it,
with expenses borne by said creditor. And finally, in cases of lengthy lists of creditors, the
The court may order the receiver to prepare a special list with the details of the creditors (that
has come to be called 'pre-subscription work'), in order to be sent to the Judicial Deposit Bank, for
how fortunate that the institution pays them directly.
The situation of creditors who come forward to claim their debts or privileges subsequently
In the presentation of provisional or final distribution projects, according to article 223, only have
right to participate in future distributions in the proportion that may correspond to the credit not
perceived, and finally article 224 states that one year counted from the date of approval of the state of
distribution, automatically expires (which can be declared ex officio) the benefit of being able to receive
the bankruptcy dividend. Although in practice (and this is not so common), the final part of art. 224 provides that
Once the expiration of the right to collect has occurred, which is declared ex officio, the remaining amounts do not
collected will be transferred to the State for the promotion of common education.

13. LAST REFORMS INTRODUCED BY LAW 26.684

On June 1, 2011, the National Congress, practically with the unanimous vote of deputies and senators,
sanctions theLaw 26.684which was enacted by the Executive Power on June 30, 2011, whose provisions
of strong Labor and social content introduces important modifications to the current legislation until that
then, at the same time that it introduces a legal framework for 'worker cooperatives', which simply
explained, are a new legal form. Through it, at the time of a company's bankruptcy, in
instead of proceeding with its closure and subsequent judicial liquidation of the entity with the due
intervention of the bankruptcy trustee in the event of forming a work cooperative, made up of
the workers who at the time of the bankruptcy were providing services for the debtor, such new legal entity
has priority to take charge of the debtor company and thus continue its activities.
What was explained previously seems like a straightforward application, but in truth, the new regulation
since the day of its sanction has sparked many more criticisms among specialists in the field than
supports and applause, but let us clarify that when writing these lines, the aforementioned legal norm has
barely a little more than a year of validity and its forms of application and results are still uncertain,
Well, it is evident that the legislator has tried to protect the 'weakest link' in the chain of
failure, the rushed drafting and sanctioning of theLaw 26,684it has awakened contradictory opinions among
jurists and bankruptcy trustees (many more criticisms than applause), having evidenced a
scant tidiness of the drafters of the new legal norm (not corrected in Congress), and that
obviously, as has happened with various laws that sparked mixed reactions at the time,
As the months go by, the judges will establish doctrines and criteria that facilitate the application of the
legal norm.
It is important to note that thelaw 26.684it has not been limited solely to blessing the creation of a
rescue through the assistance of 'worker cooperatives', but has also introduced notable
reforms in different articles of theLaw 24.522,It is important to mention the modification of the inc.
8th of Art. 11 which refers to the requirements that must be submitted in order to obtain the opening of a
competition, as it is required that the 'list of employees' be submitted, detailing their addresses,
category, seniority and last remuneration received, as well as existence of labor debt and
debt with social security organizations, all certified by a Public Accountant.
With this, the legislator seeks clarity and transparency in the opening of the competition, in the sense that it
not only get to know the 'employee roster,' but also to make both the possible debt public
with the salaried workers, as with the social security agencies.
From the perspective of accounting experts, the legislative confusion is regrettable, as already criticized in
sanctions from previous laws regarding the use of the words 'certification' and 'opinion', as it would seem
ignore the clear differentiation established in this regard by the Professional Council of Economic Sciences
from CABA in the publication 'Reports and Certifications' published in 1996 and which is still in force,
and according to which in the 'certification' the professional makes a personal statement that the information
it agrees with the accounting records and/or supporting documentation and instead in the 'report'
also referred to as 'special report,' the professional states that the information is adequately presented
in its significant aspects, the reported facts must also identify the procedures
of audits applied.
Following the order of the provisions of the recent reform, it is worth noting that for the informational hearing
what must take place before the expiration of the exclusivity period contemplated in article 43, such
the audience must be notified to the workers, which is another demonstration of the important interference of the
Employee in the processing of the competition.
Another example of the lawmakers' lightness in sanctioning the reform is the fact that
According to paragraph 11 of article 14, upon acceptance of the position, the term for the trustee begins.
There is a ten-day deadline to pronounce on labor liabilities and at the same time audit regarding the possible
existence of other labor credits that are included in the early payment. In this regard,
we insist that the agreed deadlines do not at all align with the procedural times that
it grants the debtor for the presentation of their books, which by application of article 14, paragraph 5 must be
must be intervened by the Secretary of the Court, who on the other hand is also not allowed to
running a deadline to carry out said task.
As we progress in the study of the new wording, we encounter the modified version.
of article 16 which establishes a 'prompt payment' to labor creditors in very short deadlines and introduces the
novel procedure, in the event of employer default, that must be affected for such
I pay 3% monthly of the gross income of the contestant. Obviously, we cannot overlook that the
"gross income" in no way means any profit, nor can it be considered as such.
a surplus, until such time as these incomes are compared with the essential necessary expenses.
It is also sanctioned in the new wording of Article 29 of the Bankruptcy Law, that the syndic also
must send the letter that was previously reserved only for the creditors, to the members of
"control committee", and a new clause is added to article 34 by which the workers of the bankrupt company,
whether they are creditors or not, they have the right to review the files, and the trustee is obliged to inform them
regarding the received insinuations. In plain language, the oversight that the worker can exercise is 'total'
and unlimited
Once the categorization is resolved, it must be integrated with two representatives from
the workers, whom they themselves must choose (which are added to the already elected worker of
according to article 14, paragraph 13, without prejudice to the Judge's power to reduce that number, when the
circumstances advise otherwise).
Until the sanction of theLaw 26.684Much has been written about the scope and interpretation of Article 48,
better known as the 'cramdown' article and this legal norm now supports a more than significant
modification that is completed with the incorporation to thelaw 24.522of article 48 bis, which legislates about
from the registration in the registry established in section 1 of article 48, granting a place to the cooperative of
work (even when still in formation) whose capital, in turn, is composed of the credits that
they may exist in favor of the workers, these calculations which become an important and complex
workload for the syndic.
Among the important advantages that the legislator requires to be granted to workers, constituted in
cooperative, it is worth mentioning that the Bank of the Nation Argentina and the Federal Administration of
Public revenues 'must' says the Law (which means it is imperative) grant approvals and facilities
debt refinancing under the most favorable conditions in their respective portfolios, and that
are exempt from making the deposit of 25% of the value of the offer, or the deposit of 5% of the
subscribed capital.
Likewise, it should be emphasized the consequences of article 21 of the legal norm we are analyzing that
replaces article 195 of the law that was in effect until yesterday, which greatly restricts the usual rights
that were possessed by mortgage and pledge creditors.
In terms of the realization of assets, the newly enacted legal regulation modifies Article 203 and creates Article 203.
thus, it creates a huge benefit for workers, as they can offset labor credits with fees.
of capital, but we believe that we must wait for the passage of time in order to appreciate the advantages
of such a novel system.
It is worth noting that the figure of the 'evaluator' is maintained, with the innovative 'control committee' being the one that
must propose the list of evaluators from which the Judge will appoint the one who will perform in that role.
sense.
 As a corollary on the topic "worker cooperatives" or "recovered companies", as they are also called.
we estimate that a reasonable period of time must pass, which will ultimately demonstrate
if the legislation, as novel as it is revolutionary, has contributed to improving the worker in real terms,
or if on the contrary, it has worsened it, in the very difficult ordeal of corporate bankruptcy.
THIRD PARTY

CHAPTERX

THE PROFESSIONAL WORK OF THE PUBLIC ACCOUNTANT IN THE NEW ALTERNATIVES OF

CONFLICT RESOLUTION: NEGOTIATION, MEDIATION, AND ARBITRATION

Hugo Fernandes dos Santos

1. INTRODUCTION
In this chapter, the study of alternative dispute resolution methods will be addressed.
those who, as we will see, the professional in economic sciences can perform.
The development of processes distinct from the judicial one is a consequence of the crisis of the state system.
administration of justice. The overload of the courts that prevents the provision of an efficient service,
the excessive duration and high cost of trials are some of the reasons that contributed to
the Judiciary has reached a significant degree of operational incapacity.
Negotiation, mediation, and arbitration are some of the alternative methods that allow
unpack the judicial dispatches and, in turn, provide the conflicting parties with the possibility of reaching
solutions that more broadly satisfy your needs and interests.
The professional in economic sciences may be called to intervene in the conflict, taking on
different areas—private, institutional, judicial—the role of mediator or arbitrator.

2. THE CONFLICT

2.1. Concept
The conflict can be defined as the clash or confrontation that occurs between two or more people.
due to the different way they perceive a problem or a situation.
The insertion of man into society and the divergence of ideas, feelings, cultures, and interests make
that conflict is a part of daily life.
When a minority partner is isolated in a society, or a company is restructured and changes occur
dismissals, or two merchants give different interpretations to a contractual clause; the involved parties,
through their behaviors they build the context of the conflict relationship. Normally, they build that
piece of reality to determine who pays for the damages, whether they are material or moralis(1).
 Depending on how the different perceptions in that reality are understood, the conflict can be perceived.
in a negative or positive way. From a negative perspective, the differences between people are understood
as generators of problems; while, from a positive perspective, those differences are understood
as generators of opportunities.

2.2. Positive vision of conflict

Having a positive view of conflict is important to conceive it 'as a driving force for change, generator of
creative energy that can improve situations, an opportunity for growth and enrichment
personal"(2) .
In the face of a conflict, one must think about the change that can occur, warning:
who has to change;
What needs to change;
who is in charge of the exchange rate;
and what that price should be; and
how much and how it should be paid.

Therefore, as change becomes necessary, the existence of conflict also becomes necessary.
A moderate level of interpersonal conflict can increase motivation and energy; conflict
it can encourage innovation among individuals and the system, thanks to promoting greater diversity of
points of viewa(3)For example, if a company's sales of one of its products drop sharply
products, then the different sectors (production, marketing, distribution) are
they shift responsibilities onto each other, creating a conflicting situation. In contrast, if they adopt a
positive view of the conflict, they will seek options or alternatives (improve the bonus policy and
discounts through achieving an increase in production, relaunching the product with a system
more efficient distribution, etc.) that will allow finding the solution to that situation, maximizing the
results in a cooperative manner.
Consequently, those involved in a conflict situation must be able to
take advantage of it, finding some shared or common interest and reaching a resolution that satisfies
all.

2.3. Behaviors in response to conflict

In the face of a conflict, the parties involved can adopt different
behavioros(4), those that are not completely exclusive:
to compete or to contend;
to cede or grant;
to agree
to collaborate and solve problems; and
to avoid, to do nothing or to withdraw.
Compete or contend. This type of behavior matters to prioritize the satisfaction of needs and
self-interests over those of others. The one who uses this strategy tries to resolve the conflict by imposing
its terms, whether through threats, punishments, reprisals, and it will be the other who must yield. For
example, the case of an employer who imposes overtime work on their employee without additional pay
corresponding, threatening him with dismissal.
Cede or grant: In this case, the needs and interests of the other are satisfied instead of one's own.
For example: an employee who decides to continue working under the orders of their employer even though they do not
grant the requested raise.
 Agreeing: It involves reaching an agreement with the other, satisfying some personal needs and some
foreign; that is to say, both yield something of their original position.

Collaborate and solve problems: What is pursued with this behavior is to achieve complete
satisfaction of the needs and interests of both parties. To this end, the parties must improve the
original positions. It is a cooperative behavior, through which those involved position themselves
positive way in the face of conflict.
Avoiding, doing nothing or withdrawing: It implies inaction, showing no interest either in one's own matters or in those of others.

3. CONFLICT RESOLUTION METHODS

3.1. Adversarial and non-adversarial methods

Conflict resolution methods can be adversarial and non-adversarial.
The following table lists the main differences between them:
Adversarial or heterocomposites No adversarial or self-composing
Position of the
They are opposed and are contenders. They act together and cooperatively
parts
Control of A third party impersonates the will of the parties and it is him. The parties maintain control of the proceedings and
process who makes the decision the decision is the result of an agreement between them
Focus for Option 'win—lose': if one party wins, the other, Win-win option: all parties
the solution necessarily loses benefit
It puts an end to the litigation, but does not necessarily resolve it. The parties arrive at it taking into account their
Decision
problem satisfying the interest of all parties needs and interests

3.2. Alternative methods for conflict resolution

Alternative dispute resolution means are those processes distinct from the judicial one; in the
which parties, whether by themselves or with the intervention of third parties, resolve the problems they face.
This type of process results in greater flexibility, shorter duration, and lower cost than the one proposed in the
judicial sphere, and is characterized by the cooperative behavior of those involved.
Among the various alternative methods for resolving conflicts, the following can be mentioned: negotiation, the
mediation and arbitration.

3.2.1. Negotiation
It is a non-adversarial method through which the parties, without the intervention of third parties, manage to reach
an agreement to jointly resolve their differences.

3.2.2. Mediation
It also consists of a non-adversarial method, but unlike negotiation, one or more intervene.
more third parties that collaborate with the parties so that they can put an end to their disputes, reaching a
agreement as agreed upon.
3.2.3. Arbitration
Arbitration is an adversarial process in which the parties delegate to a neutral third party, called an arbitrator,
the decision of the conflict raised between them.

4. THE NEGOTIATION

4.1. Concept
Negotiation is the 'science and art of seeking an agreement between two or more interdependent parties.
that wish to maximize their own results understanding that they will earn more if they work together than if they
they keep confronted; seeking a better way out through a determined joint action instead of
resort to some other methodo(5).
It is a voluntary, informal, and unstructured process, in which the parties take on seeking the solution to
their conflicts without the intervention of third parties; the difference in interests being the starting point and a
two-way communication the way to achieve it.
The fact that it is a solution achieved cooperatively will make the agreement
achieved to be genuine and sustainable over time.

4.2. Negotiation Models

Negotiation models or styles are the ways in which the parties can approach negotiation.
They can be distinguished as competitive and collaborative.
In the competitive model, one party 'wins' and the other 'loses'. In this situation, there are fixed resources to be
divided, therefore, the more one part obtains, the less the other obtains. In this assumption, the interests
The parties are opposites (...). The dominant strategies in this kind of agreements include shrewdness,
legitimate force and an adequate and exclusive handling of information (...). This type of negotiation is called
also called 'required value'. In this situation, the goal is to increase one's own well-being at the cost of
opponent(6).
Consequently, the characteristics of this negotiation model are the following:
Negotiation is understood as a zero-sum game.
Objectives are sought at the expense of the opponent.
Extreme initial positions: negotiations begin with irrational and uncompromising demands.
They make ridiculous offers that affect the opponent's level of expectation.
Limited authority: negotiators lack authority—or it is very limited—to make
concessions.
Emotional tactics: examples of them are exasperated attitudes, yelling, banging on the table,
acting as a "victim" of the power or the ill intent—not real—of the counterpart.
§ Consideration of the opponent's concessions as weaknesses: in the face of a concession from the opponent, not
it acts reciprocally.
§ Meanness in one's own concessions: concessions are delayed and minimal.
Ignorance of deadlines: acting as if time does not exist, and therefore does not run out, without
that there are limits in this regardo"7.
Meanwhile, in the corporate or collaborative negotiation model, which fits the definition
of negotiation provided, "... there is a variable amount of resources to be divided and both parties can
to win. In these negotiation processes, the dominant concern is to collectively maximize the
outcomes. (...) The collaboration involves a joint effort aimed at finding a solution that is
perceived as beneficial for both parties. The dominant strategies in this type of deal include the
cooperation, sharing information, and solving mutual problems. This type of negotiation is also
called "created value", since the goal is for both parties to conclude the negotiation feeling that they obtained
a greater benefit than before doing ito"(8).
They can be mentioned as characteristics of this type of negotiation: the extent of mutual trust,
the achievement of the commitment of the other party, and the control of the adversary.

One of the models with the 'win-win' approach is the 'Harvard Model or the Seven Model'
Elements" developed by Roger Fisher and William Ury from Harvard University. It refers to the
"principled negotiation", the principles being the following:
Separate the people from the problem.
Focus on interests, not positions.
Invent options for mutual benefit.
4. "Insist on using objective criteria."
On the other hand, the seven elementsos(9)what defines the model are:
TheRelationship. This element emphasizes that an agreement can never be good if it involves
it deteriorates the relationship between the negotiators.

§ The Interests. The heart of the model: all the matters that really concern the parties in a
negotiation.
§ TheOptions. Highlighting here the importance of the creative stage, fundamental in any process
negotiator.
Legitimacy. Betting on argumentation and persuasion instead of coercion and deceit.
The alternative to negotiation. What the negotiator could do in case an agreement is not reached.
agreement with the other party.
§ Communication. The starting point, since as it is often said, there is no negotiation without
communication.
§ The commitment. The final point of negotiation, what the parties agree upon in writing or verbally.
Assigning a name to each of the Seven Elements (...) implies having a common language that
we can use to understand, discuss, and apply such elements(10).

5. MEDIATION

5.1. Concept
It is the process by which the participants, along with the assistance of one or more neutral persons, isolate
systematically the disputes with the aim of finding options, considering alternatives and reaching a
mutual agreement that meets your needs. Mediation is a process that emphasizes self
responsibility of the participants to make decisions that influence their lives. Therefore, it constitutes a process
which confers authority over itself to each of the parties"(11).
Therefore, mediation can be understood as an assisted negotiation, in which the mediator
intervenes by facilitating communication and discussion between the contenders, in such a way that they can
to reach a mutually acceptable agreement.

5.2. Characteristics and advantages of mediation

The following characteristics and advantages of mediation can be listed:
 It is informal: the mediator is not bound by a procedure regulated by procedural norms; but possesses
a structure in the sense that its stages must be exhausted or, at least, sufficiently
developed, before moving on to the next one, without prejudice to the possibility of going back to a stage
previous if necessary.
It is self-composing: the parts—with the help of the mediator—are the ones that find the solution to
conflict, through the achievement of an agreement that is mutually acceptable. It is important that everyone
contenders win.
It is confidential: it is one of the fundamental characteristics of mediation. Hearings are always
they will take place behind closed doors and everything that the parties disclose will remain there. One of the obligations
the mediator's role is precisely to preserve the secrecy of everything that has been acted upon. For judicial processes
it governs the principle of publicity, which establishes that processes are public and, unless it concerns
reserved files, anyone can access them.
It is economical: mediation services have a minimal cost, especially when compared to that of
the judicial disputes.
It is fair and emphasizes the future: The agreement reached is the product of interests and needs.
of each of the parts. Attentive to that circumstance, they will be more predisposed to their
compliance, which will make it last over time.

5.3. When is mediation advisable and when is it not?

According to experience, mediation has proven to be more successful in cases like those stated.s(12)a
continuation:
When there are two or more parties that have a relationship that is perpetuated over time, therefore they want
end the problem but not the relationship.
When the parties want to retain control over the outcome of the conflict.
When the parties share some degree of responsibility for the state of the conflict.
When both parties have good arguments and there is a varied range of possibilities of
solution of the conflict and prevention of future litigation.
§ When the law does not provide the solution that the parties desire.

When the dispute is not in anyone's interest and no one really wants to go to trial.
When one wishes to maintain a situation of anonymity, privacy, and confidentiality.
When there is no great imbalance of power.
When the cause of the conflict lies in poor prior communication.
§ When the parties need, above all, an opportunity to vent.
When very complex technical issues are at stake.
When you want to minimize costs.
When one wants to resolve the conflict quickly.
On the other hand, there are cases in which mediation is not advisable. Among themos(13), they can
mention
When either party wants to prove the truth of facts.
When one of the parties has a fundamental issue of principles that is non-negotiable of which not
can leave of their own free will.
When one of the parties has a punitive interest or a notion of retributive justice that they wish to see
recognized in a decision issued by a judge.
When what is desired is to set a legal precedent.
When one of the parties is absent or incapacitated.
 When one of the parties is not interested in reaching an agreement.
When neither party is in a position to consider the possibility of an agreement.
When the slowness of the judicial procedure will greatly benefit at least one of the parties.
When the actor wants to obtain—as if it were a lottery with a prize—colossal sums.
When the controversy involves a public offense, violence, or mistreatment of minors.
When public order is involved, the jurisdiction of a court is essential.
In the event that the mediator considers that mediation is not the appropriate procedure to provide
solution to the proposed conflict, must inform the parties and assign them to use another method
(arbitration, filing of the case before the court).

5.4. Mediation Procedure

Delfina Linck(14)it refers to a single mediation procedure, regarding which adjustments can be made
variants according to the preferences of the mediator and the needs of the case and, through it, one
They will address the two main issues at stake in a conflict: the content and the relationship.
It indicates that mediation has two major "movements" or "moments," which, in turn, comprise
two stages each.
The first moment aims to IMPROVE COMMUNICATION and includes the first stages.
and second:
First stage: ORGANIZATION OF MEDIATION
Second stage: UNDERSTANDING POSITIONS AND CLARIFICATION OF INTERESTS
The second moment aims to ENRICH THOUGHT, and encompasses the stages
third and fourth
Third stage: CHALLENGE TO RECONCEPTUALIZE AND GENERATE OPTIONS
Fourth stage: CHALLENGE OF REACHING A GOOD AGREEMENT
As "mediation only works on a voluntary basis, it cannot be imposed. If I do not want them to know
my problem, I am not going to talk to you, and there will be no mediation. That is to say, there must be a willingness to seek and
allow a Third Party to enter the problem"(15).
Once those involved in the conflict accept the mediator, it is necessary to begin to go through the stages.
mentioned.

5.4.1. First objective: to improve communication

At this initial moment, the mediator's challenge will be to modify the dysfunctions of the structure.
of communication that made it impossible for those involved in the conflict to listen to each other and, consequently,
cannot understand each other.

The first stage, called organization of mediation, is related to the creation of a

appropriate context, which includes:
the management of space,
the attitude of the mediator and
the presentations, explanations/rules, and established methods.
Space management: it should be ensured that the work is facilitated, so there should not be
inconveniences nor dissonances. For example, the use of round or oval tables may be favorable.
because it will prevent confrontations or the existence of privileged places.
The attitude of the mediator: the neutral third party - the mediator should:

impartial user
listen attentively and actively,
 user flexible,
receptive user
to develop your imagination to the fullest,
manage with absolute respect when conducting the process.
The presentations and explanations/rules and established modes: regarding the presentations, the
the mediator will refer to those participating in the mediation (in addition to the parties and the mediator, there may be
co-mediators, legal assistants and other advisors, observers) and will indicate the role that each will play
one of them.
The explanations will consist of indicating:
What is mediation, and what are its characteristics?
What are the rules of behavior? And what are the rules of operation? In this case, the mediator
set the rules of the game, outlining how the procedure will be carried out.
The important thing is that there are no doubts and that everyone involved agrees with the rules.
stated.
Subsequently, the parties and the mediator will sign the confidentiality agreement, since—as
it has been mentioned—the mediation procedure is strictly confidential, therefore
the secrecy of all information disclosed in the hearings and the impossibility of
to use it in a later trial.
The second stage—understanding positions and clarifying interests—can be summarized
in one word: 'tell me'. The third party has to establish a relationship with the conflicting parties to see
what the problem is about.
The mediator will attentively and actively listen to how each party presents their perspectives, the
which can be very unclear and distinct. Part of the mediator's work, as a facilitator, consists of
create an environment where the mediators can delve into their stories.
Typically, the participants in the conflict frame the problem in irreconcilable terms and cannot
perceive if they have something in common or that they can share.

At that stage of the 'tell me', the mediator must pay attention to both the content and the relationship.
The content refers to the specific data that is handled when describing the problem. People often think
that the conflict is related to the content, and yet, most conflicts have nothing to do with it
content but with the relationship. The content is used as a way to express what is missing in the relationship(16).

To get the parties to speak, the mediator must connect with them. They must know how to raise
open questions and not reduced; ask questions that expand, to understand what is behind, what it is
what bothers and why.
Then, the mediator will summarize, phrase, or paraphrase what has been said by the parties to:
to demonstrate an impartial assimilation;
to depur negative emotions and accusations;
to ensure about the information;
to obtain agreement from the party on the mediator's oral version; and
to get the other party to hear it from a third party.
Then it will investigate the functional why or the 'for what' of its positions, that is, what it is that
they want to achieve. The true interests must be exposed in the answers. It may be required to
Each part that expresses/phrases in their own words what the interest of the other is.
It should be emphasized that interests, needs, and desires underpin the positions that are taken.
and rest upon the beliefs and values of individuals.
Once an improvement in communication has been achieved and established,
reciprocal, the interests of the parties; the next step is to rethink the situation in such a way that it can
thinking about satisfying the interests of all participants simultaneously.

5.4.2. Second objective: enrich thinking

 In the stage of the challenge of redefining and generating options, the mediator has to position themselves, understand in
What exactly does the conflict consist of and how to move to a common agenda. It is about moving from 'I/you' to
we; from "you are the problem" to "we share a problem".
An attempt is made to reach a common understanding of the conflict to seek simultaneous satisfaction.
changing the frame of the win/lose or lose/win problem to win/win.
What follows is to think about ways out, about generating options: one of the activities that allows this is
the one called 'BRAINSTORMING'. The options or proposals that are put on the table
—some surely unfeasible—must allow for the interests or needs of all to be met.
the parts. This work allows for exercising thought in a creative and constructive manner.
Consequently, the objective sought is to fix the problem, achieving the benefit of all.
The word 'fix' offers a broader perspective than the word 'resolve.' Resolve places much more emphasis.
about the specific issues to be addressed (land, salary, schedule, etc.). However, fixing has to do with
also with the relationship: How are we going to be after?"(17).
The guiding principle of this stage is: the solution exists, we just have to find it.
In the final stage, the parties and the mediator face the challenge of reaching an agreement. To achieve this, they
they must select those proposals that remain consistent against personal guidelines or filters and, in turn, against
objective guidelines or filters (laws, science, technique, expert assessments, analysis, etc.). The sum of proposals will be passed
through that double filter and those possible or viable ones will remain, some of which may serve as the basis of the agreement
between the parties.
If the same is reached, it must be drafted taking into account:
its implementation,
the risks of noncompliance, and
the resolution of unforeseen situations.
Likewise, a contingent, partial, or staggered agreement can be reached; that is, that it has not been
achieved a total solution to the problem.
On the other hand, the fact that an agreement is not reached does not mean that the mediation has failed,
Well, we will have to evaluate the transformation that occurs in the conflict and how the relationship between the...
parts.
It should be noted that the mediation process is not linear, as its design acknowledges the
circularity. Once the mediator has listened, they start creating the framework and looking for solutions with the
involved people, it goes back again to have them tell more, to create a better framework, to redefine—if it is
necessary—the situation and to see more possibilities for a serious arrangement. So, if everything goes well, to
Finally, some kind of agreement or solution can be reached.
For the development of mediation, joint meetings can be held or—if necessary—
private meetings. For the process to be satisfactory, it must be clear, balanced, participatory, and
without manipulations.

5.5. The mediator

5.5.1. The role of mediationr(18)

The role of the mediator is that of an impartial third party who assists in a negotiation.

Therefore, it must:
1) Know what the conditions are for a successful negotiation.

2) To know by what means the parties can achieve those conditions.

3) Know how to conduct a procedure that allows the parties to achieve those conditions.
Knowing what barriers the parties must overcome and what challenges they must take on, the mediator
must help the parties to:
 Do not react.
Active listening.
Recognize the perspective of the other.
Express your opinions without provoking.
Increase positive emotions.
Appreciate the coincidences or common points with the other.
Develop a collaborative mindset.
Abandon the rigidities that limit the framework of solutions.
Open the mind to creative proposals.
Value the preservation of the relationship as a tool for better defending one's own.
interests.

5.5.2. Characteristics of the mediator

A good mediator should possess the following qualitiess(19):
1) Neutrality: the most important quality of an effective mediator is their ability to maintain a role
impartial and neutral in the midst of a controversy.
2) Ability to refrain from projecting their own judgment: the role of the mediator is to help the parties
reach an agreement whose terms are acceptable to them, even if the mediator is in
disagreement with the wisdom or the justice of the solution.
3) Flexibility: it should stimulate fluidity in communications.
4) Intelligence: the parties seek a mediator to facilitate the path to resolution, with a
agile and effective mindset. Must be able to see issues on multiple levels, to deal with facts
complex, and to analyze the problems.
5) Patience: it is important for the mediator to be able to wait for the necessary time as required by the
parts.
6) Empathy: the mediator must be able to value the perceptions, fears, and history of each party
Reveal in the discussion. Trust is established from this personal current.
Sensitivity and respect: the mediator must be respectful towards the parties and sensitive to their strong feelings.
evaluative feelings, including sex, race, and cultural differences.
8) Active listener: the parties must feel that the mediator has heard their respective presentations and statements.
Imaginative and skilled in resources: it is important for the mediator to have the ability to contribute and generate.
new ideas.
Energetic and persuasive: through the management of the process, the mediator must intervene effectively.
to achieve flexibility in the parts, directing the dynamics and controlling the audience without being authoritarian.
11) Ability to take a step back during attacks: if either party makes a derogatory comment
or aggressive towards the mediation system or the mediator, it is advisable not to act defensively;
Otherwise, a new dispute would arise.
Objective: the mediator will be more effective if they remain detached from the emotional aspect of the dispute.
Honest: one should not promise the parties something that cannot be fulfilled.
14) Trustworthy to keep confidences: must maintain confidentiality and the parties must
to be convinced that it will be so.
15) Having a sense of humor: it is necessary to ease tensions and create a favorable atmosphere.
Persevering: when the parties slowly reach an agreement, the mediator must endure the wait and
the anxiety that this provokes.

5.5.3. The need for training

 A mediator is not improvised. To be able to conduct a mediation process, one must be trained for it.
Beyond having suitable personal conditions for performing that role, one must carry out
a training program to incorporate a variety of techniques, skills, abilities and
information acquired and developed by those with experience due to their previous experiences.
The program will allow you, among other things:
to identify how to contribute to the process, adapting your skills to positively manage the
conflict
to warn about the difficulties presented in assuming a neutral and impartial role in the solution of
the conflicts;
recognize and develop deliberate strategies that it is advisable for the mediator to adopt when trying to elaborate
an agreement;
to thoroughly understand the essential and specific rules that govern the mediation process
like the traps that the mediator must avoid;
to study mediation techniques in the form of dramatization and role playing;
put into practice what has been learned, first through observation, then acting as a co-mediator and
then, as a mediator conducting hearings under the observation of an experienced mediator,
who will only intervene if necessary.

5.6. Civil and Commercial Mediation: Law 26.589

5.6.1. Regulatory Backgroundos(20)

TheLaw 26.589The Law on Mediation and Conciliation (LMC) was sanctioned on April 15, 2010, and enacted on May 3,
2010.
The following are the regulatory background that allowed for the enactment of this law:
Resolution 297/91 of the National Ministry of Justice (now Ministry of Justice, Security, and Human Rights):
a Mediation Commission was created to develop a National Mediation Program or Plan.

Decree 1480/92: declared this alternative conflict resolution instrument of national interest
and arranged for the creation of a Body of Mediators, a Mediation School, and the implementation of a
pilot experience in the area of the City of Buenos Aires. The plan established the following actions
and objectives:
the implementation of mediation programs in different sectors of society—community,
schools, professional colleges, Judiciary - and their inclusion in the curricula of the
university degrees
the creation of a Body of Mediators whose members meet the training requirements;
the creation of a National Mediation School in order to train and educate mediators, with
specialization in asset and family mediation, without prejudice to later expansion towards
other specializations;
subscription of agreements with public and private organizations with the aim of disseminating this technique
of dispute resolution.
It should be noted that by ministerial resolution 504/2001, the resolutions 479/97 were annulled.
y 200/98, through which the aforementioned School was created and its regulations were approved.
operation, the academic plan and the program of activities of it, respectively.
Resolution 983/2003 of the Ministry of Justice: ordered the execution of the pilot experience of the
mediation provided for in decree 1480/92 in the civil jurisdiction. The experience included courts with
property competence and family jurisdiction courts.
Law 24.573 sanctioned on October 4, 1995, and promulgated on October 25, 1995: established, with
mandatory character, the mediation prior to any lawsuit initiated in civil and commercial justice.
Established the procedure, created the Register of Mediators, a Selection and Oversight Commission and
a Funding Fund.
 user flexible,
receptive user
to develop your imagination to the fullest,
manage with absolute respect when conducting the process.
The presentations and explanations/rules and established modes: regarding the presentations, the
the mediator will refer to those participating in the mediation (in addition to the parties and the mediator, there may be
co-mediators, legal assistants and other advisors, observers) and will indicate the role that each will play
one of them.
The explanations will consist of indicating:
What is mediation, and what are its characteristics?
What are the rules of behavior? And what are the rules of operation? In this case, the mediator
set the rules of the game, outlining how the procedure will be carried out.
The important thing is that there are no doubts and that everyone involved agrees with the rules.
stated.
Subsequently, the parties and the mediator will sign the confidentiality agreement, since—as
it has been mentioned—the mediation procedure is strictly confidential, therefore
the secrecy of all information disclosed in the hearings and the impossibility of
to use it in a later trial.
The second stage—understanding positions and clarifying interests—can be summarized
in one word: 'tell me'. The third party has to establish a relationship with the conflicting parties to see
what the problem is about.
The mediator will attentively and actively listen to how each party presents their perspectives, the
which can be very unclear and distinct. Part of the mediator's work, as a facilitator, consists of
create an environment where the mediators can delve into their stories.
Typically, the participants in the conflict frame the problem in irreconcilable terms and cannot
perceive if they have something in common or that they can share.

At that stage of the 'tell me', the mediator must pay attention to both the content and the relationship.
The content refers to the specific data that is handled when describing the problem. People often think
that the conflict is related to the content, and yet, most conflicts have nothing to do with it
content but with the relationship. The content is used as a way to express what is missing in the relationship(16).

To get the parties to speak, the mediator must connect with them. They must know how to raise
open questions and not reduced; ask questions that expand, to understand what is behind, what it is
what bothers and why.
Then, the mediator will summarize, phrase, or paraphrase what has been said by the parties to:
to demonstrate an impartial assimilation;
to depur negative emotions and accusations;
to ensure about the information;
to obtain agreement from the party on the mediator's oral version; and
to get the other party to hear it from a third party.
Then it will investigate the functional why or the 'for what' of its positions, that is, what it is that
they want to achieve. The true interests must be exposed in the answers. It may be required to
Each part that expresses/phrases in their own words what the interest of the other is.
It should be emphasized that interests, needs, and desires underpin the positions that are taken.
and rest upon the beliefs and values of individuals.
Once an improvement in communication has been achieved and established,
reciprocal, the interests of the parties; the next step is to rethink the situation in such a way that it can
thinking about satisfying the interests of all participants simultaneously.

5.4.2. Second objective: enrich thinking

 In the first hearing, the mediator must inform the parties about the principles that govern the
established procedure in the regulation.
Confidentiality
Regarding confidentiality, it is established that no express agreement from the parties is required and that the
same ceases by express waiver of all the parties involved, or to avoid the commission of a
crime or, if it is being committed, prevent it from continuing to be committed.
Requirements to be a mediator
To serve as a mediator, the following requirements must be met: to be a lawyer, with three
years of experience; certify the training required by the regulations; having passed an exam of
suitability; being registered in the National Mediation Registry, and meeting the other requirements that are
establish in the Regulations.
Designation of the mediator
The appointment of the mediator may be made:
a) By agreement of the parties, when they choose the mediator by written agreement.
b) By drawing lots, when the claimant formalizes the request at the entry desk of the jurisdiction before the
which would correspond to promote the demand and with the requirements established by the judicial authority. The
The entry desk will draw the mediator who will intervene in the claim and assign the court that
Eventually, he will understand the cause.
c) At the request of the requester to the respondent, for the purpose of selecting a mediator from a list.
whose content and other requirements must be established through regulatory means.
d) During the processing of the case, the acting judge may, in a judicial process, refer it only once.
the file on the mediation procedure. This mediation will be conducted before registered mediators
in the National Mediation Register, and their designation will be made by lottery, unless agreed otherwise.
parts regarding the person of the mediator.
Personal appearance and representation
The parties must attend the mediation in person and cannot do so through a representative.
excluding legal entities and those residing more than one hundred and fifty kilometers from the
city where the hearings are held. Those who are exempt from personal appearance are excluded.
they are authorized to give a statement by office(art. 407from CPCCN)
Legal representation is mandatory, and any party that fails to appear will be considered absent.
audiences without such assistance.
Conclusion of the agreement

The conclusion of the agreement may be:

By agreement: a record will be drawn up in which its terms will be specified and must be signed by the mediator.
the parties, any third parties involved, the intervening attorneys, and the attending professionals if
they would have intervened.

In the absence of an agreement: an official record will be drawn up and signed by all present, stating the outcome.
of the procedure. For the requester, the judicial route is open, accompanying their copy of the record.
with the precautions established by law. The lack of agreement also enables judicial recourse for the
reconvencion that the requested party may raise, when they have expressed their claim during the
mediation procedure and it will be noted in the minutes.
Due to the absence of the parties: a minutes will be drawn up signed by all the attendees where it
It will record the result of the procedure. The claimant is enabled to initiate the process.
judicial, to which end it will accompany its copy of the minutes with the requirements established by law. The party
the absent party shall pay a fine.
Enforceability of the agreement

The agreement formalized in the minutes signed by the mediator shall be enforceable by the procedure of
execution of the judgment, in accordance with the provisions of article 500 paragraph 4) of the Civil Procedural Code and
National Commercial.
Family mediation
Understand the patrimonial or extrapatrimonial controversies arising from family relationships or
that involve the interests of their members or relate to the subsistence of the marital bond, to
exception of those excluded by article 5° section b) of the law. It mentions the following issues:
a) food between spouses or derived from kinship, except for the temporary ones determined by thearticle
375of the Civil Code;
b) custody of minors, unless their deprivation or modification is based on serious grounds that are
assessed by the judge or the judge orders the precautionary measures he deems appropriate;
c) visitation regime for minors or incapacitated persons, unless there are serious and urgent reasons that impose
without delay the judicial intervention;
d) administration and disposal of assets without divorce in the event of a dispute;
e) personal separation or separation of property without divorce, in the event ofarticle 1294of the Code
Civil
f) patrimonial issues arising from divorce, separation of assets, and nullity of marriage;
g) damages and losses arising from family relationships.
Attending professionals
The mediators may act, with the prior consent of all parties.es(21), in collaboration
with professionals trained in disciplines related to the conflict that is the subject of mediation.
The attending professionals must meet the following requirements: provide proof of the required training.
the regulation; have a valid registration in the National Mediation Registry, and comply with the
other requirements set by the regulations.
Regarding the registration in the National Mediation Registry, they must do so in the chapter
corresponding to the Registry of Assistant Professionals organized and managed by the Ministry of
Justice, Security and Human Rights.
The law's regulations establish what the requirements are to be a professional assistant:
a) Hold a duly legalized university or tertiary degree from a competent authority, in the
conditions and with the specialties established by the Implementing Authority.
b) To certify basic training in mediation as determined by the Authority
of Application.
c) Annually certify the completion of continuing education as established by the Authority
Application.
d) No disqualifications in commercial, civil or criminal matters nor having been convicted with a penalty of
imprisonment or prison for a willful crime for the duration of the sentence.
e) Not being affected by the incompatibilities or impediments established by the regulations.
specific to their profession or activity.
Pay the tuition fee provided in theArticle 42from theLaw 26.589.
g) Fulfill the other requirements set forth by the Ministry of Justice, which will establish the requirements for
the compliance with the sections a), b), c) and f) referred to.
National Mediation Registry
The National Mediation Register is the responsibility of the Ministry of Justice, Security, and Rights.
Humans.
The following are the chapters that make up the Registry and the tasks assigned to them:
Registration of Function
a) Mediators (*) Authorization, licensing, and control over the performance of mediators.
b) Centers of Authorization, qualification, and control over their operation. They should be led by
Mediation registered mediators.
c) Professionals
Authorization, enabling, and control over the performance of the assisting professionals.
Attendees
 d) Entities Authorization, approval, and control over the operation of entities dedicated to training and
Trainers training of mediators.
(*) Includes mediators and family mediators in two sections.

5.7. Mediation in criminal mattersl(22)

In this matter, the National Criminal Code (CPN) establishes a procedure that involves the possibility of application.
of the system and that concerns the extinction of the criminal action.

It is about the Suspension of the Trial on Probation (arts. 76 bis, ter, quater of the Penal Code). For the application of this institute, it is
It is necessary to summon the victim of the crime who will be heard regarding the compensation for the damage and, in case of acceptance
the offer made by the defendant, this acceptance prohibits the exercise of the civil action arising from the crime.
In this regard, article 293 of the National Criminal Procedure Code (CPPN) establishes that the judicial body
The competent authority may grant the benefit in a single hearing, where the parties will have the right to express themselves.

On the other hand, regarding private action, the procedural code provides for the mandatory summoning of a
hearing (art. 424 of the CPPN), from which the reconciliation between the parties may result. The failure to summon to this
the audience prevents the continuation of the trial.

5.8. Mediation in the Professional Council of Economic Sciences of the Autonomous City of
Good Airs23

5.8.1. Training in mediation

In the field of the Professional Council of Economic Sciences of the Autonomous City of Buenos Aires,
The Mediation School created by Resolution 44/96, approved by the Ministry of Justice, operates.
Human Rights of the Nation under Provision 037/98, authorized by No. 34 and the Mediation Center
created byRes. 23/97.
The training in mediation for professionals in economic sciences aims to
acquisition of skills and competencies specific to Negotiation and Mediation with a focus
pedagogical.
The Curriculum is made up of three cycles with a total of 100 hours of coursework (introductory cycle:
30 hours, training cycle: 50 hours and internship cycle: 20 hours.
The professional obtains the title of Mediator after passing a comprehensive project and will be able to:

Request your registration in the Mediation Center (CeMeCo) according to the requirements and the prior
knowledge of your regulations (10-hour course), will consider your request to join the registry
respective.
Aspirar to integrate the Register of Assistant Professionals, in accordance with article 12 of the Law of
Mediation 26,589.

5.8.2. The Mediation Center of CPCECABA

By the same provision that created the Mediation Center of the Professional Council of Sciences
Economic regulations of the Autonomous City of Buenos Aires have been approved, which establish:
Object
The Mediation Center aims to promote, encourage, develop, and provide services of
mediation in all kinds of disputes.

Competition
 It is competent in all matters, national or international, in which the validity, the interpretation is discussed.
or the fulfillment of acts, contracts, agreements, conventions, pacts, and any other matter that has
for property rights relating to production, trade, or services, capable of being
resolved through mediation in which the parties require the intervention of the Center to mediate or
to resolve disputes as an impartial third party, whether or not there is an arbitration clause. The enumeration
The preceding is simply indicative, not exhaustive, with the competence being broad in nature. It is left
it expresses that the procedure carried out under the framework of this Regulation is
absolutely voluntary for the parties and in no way replaces the mandatory mediation prior to
all judgment, established by law 26.589.
Integration
The Mediation Center is made up of:
1) A Director,
2) A Secretary,
3) The Mediators who, being professionals in economic sciences registered with the Council
Economic Sciences professional from the Autonomous City of Buenos Aires, join the Registry.
4) The Comediadores, who are professionals from disciplines other than economic sciences.
integrate the respective record.
5) The Assistants of the Center.
It also foresees, among other aspects, the mediation procedure, the provision of services
community members, the cost of the process, the fees of the mediators and co-mediators, and the ethical standards.

6. ARBITRATION

6.1. Concept
Arbitration is a private jurisdictional system that is expressly recognized by positive law.
dictated by the State. It is part of the so-called 'alternative dispute resolution systems' and
it consists of a heterocompositive and adversarial procedure, according to which the parties extend their right
to the jurisdiction that definitively resolves the dispute by issuing a binding judgment,
called "arbitral award""(24).

6.2. Features and advantages of arbitration

The following are some characteristics of arbitration that provide advantages regarding
judicial process:
Speed: arbitration allows conflicts to be resolved in shorter timeframes than those used by the
state justice, among other issues, because it is the parties that set the procedure and the
deadlines by which the acts must be fulfilled.

§Costs: costs are lower due to the speed that is given to the arbitration process and because of the
non-existence of costly and unnecessary procedural steps. Likewise, in arbitration there is no fee
of justice.
On the other hand, the expenses and fees are known in advance.
§Flexibility of the process: the process is more flexible. The parties can design the procedure that
considered appropriate for the specific case.
§Confidentiality: the judicial process is essentially a public procedure, which can have
summary secret or restricted only to the consultation of the interested parties, depending on the case and the
 In the meantime, the arbitral tribunals must maintain strict confidentiality regarding the cases that are presented to them.
submitted.
Both the existence of the procedure and the decision issued are only known by the parties and the
referee, who are subject to a confidentiality obligation.
§Intermediation: in the arbitral process—in which a good part is subject to oral proceedings—
communication between the parties and the arbitrators is direct, allowing for immediate awareness of
the claims, the evidence presented, etc. In contrast, in judicial proceedings, the parties very
they rarely contact the judge, who knows the litigation through the documents presented in the
file.
Specialized competence of the arbitrators: arbitration gives the parties the opportunity to choose their
people who will serve as referees, provided that they are independent and
impartial. This situation allows disputes to be resolved by those who have experience
and knowledge on the matter regarding which the controversy revolves.
Final binding decisions: the awards have the same binding force as judgments.
judicial and, while non-appealability may be agreed upon, it is more likely that they are decisions
finals.
Internationalization of arbitration procedures: conflicts can be resolved through arbitration
among people from different countries, for which they will be able to establish their headquarters in the country that they agree on
parts, choose the language that will be used in the process and select the arbitrators, whatever their
nationality.

6.3. Types of arbitration

Arbitration can be classified according to:
Institutional arbitration
1) The method of selecting the referees
Ad hoc Arbitration
§ Arbitration of law
2) The way referees act and the nature of the decision
Friendly conciliators
Voluntary arbitration
3) The source from which the agreement of wills originates
Forced arbitration
Internal arbitration
4) The elements are related to one or more states
International Arbitration

6.3.1. Institutional arbitration and ad hoc arbitration

Institutional arbitration is one in which there is a specialized entity that manages and organizes the
process. The institution acts as an intermediary between the arbitrators and the parties, and provides services that allow
resolve the dispute more effectively.
For example, within the structure of the Professional Council of Economic Sciences of the City
In Buenos Aires, there is an Arbitral Tribunal whose purpose is 'the resolution of all
controversy of a patrimonial nature of national or international origin submitted to its
consideration, which will be addressed and resolved based on equity, according to the honest knowledge and understanding of its
Referees and according to their regulations"(25).
In free or ad hoc arbitration, no institution intervenes. It is the parties who appoint the individual or individuals.
arbitrators who will resolve the dispute and establish the procedure to which they will adhere and the law
applicable.
Regarding the advantages and disadvantages of both systems, it can be noted that ad hoc arbitration provides
greater freedom and flexibility in the selection of arbitrators and the rules that will govern the procedure;
it is less costly, as the fees to the intervening institutions do not have to be paid and it can be
faster than institutional arbitration.
However, the freedom and flexibility granted by ad hoc arbitration can lead to differences that
It must be resolved before the core issue is decided.
 On its part, in favor of institutional arbitration, it can be noted that, since there is an entity that
The system is managed, simplifying and streamlining the celebration of the arbitration agreement, by referring to the regulations.
already elaborated—therefore the drafting of an agreement for the specific case is not necessary—and
they prevent contingencies that may arise during the procedure.
Taking into account each case, the parties will determine what type of arbitration may be
resulting more suitable to provide a solution.

6.3.2. Arbitration of law and of friendly conciliators

In legal arbitration, the arbiters resolve the controversy according to the law and the procedure.
established by legal provisions. Consequently, the legal arbitrators resolve the case of the
the same way a state judge would, although the parties can indicate to the arbitrator which rules
must apply.
The friendly mediators are exempt from acting according to the rules of procedure and
apply the solutions provided in the substantive rules to solve the case, "... are based more on the
that in their opinion is fair and reasonable—your loyal knowledge and understanding—. This does not mean that the referees
ignore the legal norms; on the contrary, there is a trend to apply the law, since it is seen as such.
as fair and equitable, without prejudice to the fact that the arbitrators may refine the consequences of the application
of the legal norms, particularly when it comes to the quantification of damage or the imposition of a
conventional penalty. This generally translates to the court deciding based on the facts and on
the provisions of the contract, eliminating those consequences that are especially unfair to
some of the parts"(26).
It is necessary to point out that the term friendly conciliator conveys more the idea of a mediator.
or a mediator rather than a true arbitrator. In modern legislation, the choice has been made to refer to this
class of referees as referees of equity of conscience.

6.3.3. Voluntary arbitration and compulsory arbitration

According to the origin of arbitration, that is, whether it is a consequence of an agreement of wills or of a
legal provision, there are voluntary and compulsory arbitration.
In voluntary arbitration, it is precisely the will of the parties that gives rise to jurisdiction.
of the referees so that they understand in a controversy—as long as it is arbitrable—. For this,
The parties must sign an arbitration agreement by which they decide to submit the matter to arbitration.
In forced arbitration, the legislation provides that certain disputes must be submitted to arbitration with
exclusive character. That is to say, it sets aside the general principle of subjection to the judges of the State and
It legitimizes the referee, considering the nature and characteristics of certain issues.
Although arbitration is voluntary by nature, "the existence of this type of arbitration has been justified in
the need to remove certain issues from the judicial realm and to prevent judges from resolving them—
usually matters of fact—that would require extensive judicial processes due to their technicality,
complexity or the incidents that may arise"(27).
The following are some matters that must be submitted to arbitration and expert evaluation.
arbitrat(28)contents in positive substantive legislation and in procedural norms:
Civil Code
§Art. 1627—on service contracts—Whoever does some work, or provides some service to another,
you can claim the price, even if no price has been adjusted, as long as such service or work
regardless of their profession or way of living. In such a case, it should be understood that they adjusted the customary price for
to be determined by referees.
§Art. 1781—on the liquidation of the partnership, and the division of the partnership assets—If the provision of
the capitalist partners had unequal shares, the share of profits for the industrial partner will be set
by referees, if the partners did not agree to designate it.
Commercial Code
§Art. 128—of the brokers and administrators of deposit houses—In all cases where they were
obligated to compensate the affected parties for any damages or other losses, whatever they may be, the assessment
it will be done by arbitrators.
§Art. 471—of commercial sales—The seller who, after the sale has been perfected,
if it is alienated, consumed, or deteriorated the sold item, he will be obliged to give the buyer another one
equivalent in kind, quality, and quantity, or, failing that, the value deemed appropriate by the arbitrators
attributed to the sold object, in relation to the use that the buyer intended to make of it, and to the profit that
I could provide it, reducing the sale price, if the buyer had not paid for it yet.
§Art. 476—of commercial sales—The defects or flaws attributed to the sold items,
as well as the difference in qualities, will always be determined by expert arbitrators, not
mediating contrary stipulation.
§Art. 491—of credit letters—The difficulties that arise regarding the interpretation of the letters
of credit or recommendation, and the obligations that it entails, will always be decided by
arbitrators.
§Law 17.418— Insurance Law that replaces Title VI of Book Two of the Commercial Code, art.
5th. Any false declaration or any withholding of circumstances known to the insured, even if made
in good faith, which in the opinion of experts would have prevented the contract or modified its conditions if the
the insurer had been made aware of the true state of the risk, makes the contract void.
Decree 677/2001 - Public offering transparency regime: corporate arbitration
§Art. 38 —Arbitration. ...self-regulating entities must create an Arbitration Tribunal within their scope.
permanent to which the entities whose shares, securities will be subject in an obligatory manner
negotiables, term contracts, futures, and options are quoted or traded within their scope,
in their relations with shareholders and investors. They are included within the arbitration jurisdiction.
all actions derived from theLaw 19.550 and its modifications, including the demands for
challenge of resolutions by social bodies and actions for liability against them
members or against other shareholders, as well as actions to nullify clauses of the bylaws
or regulations. Likewise, the self-regulated entities must proceed in relation to the
issues raised by shareholders and investors regarding the agents operating in their field,
except for matters relating to disciplinary power. In all cases, the regulations must leave intact
the right of shareholders and investors in conflict with the entity or with the agent, to choose for
to appear before the competent judicial courts. In cases where the law establishes the accumulation of
actions taking place with the same purpose before a single tribunal, the accumulation will be carried out before the
Arbitral Tribunal. Also subject to the arbitration jurisdiction established in this article are the
persons making a public takeover bid regarding the recipients of such
acquisition.
Civil and Commercial Procedural Code of the Nation
Article 516 - liquidation in special cases: Whenever the liquidations or accounts are very
complicated and slow and difficult to justify or require special knowledge, will be subjected to
the decision of expert arbitrators or, if there is agreement between the parties, that of amicable compositors.

6.3.4. Internal arbitration and international arbitration

Internal or domestic arbitration is one in which all the elements that characterize it are referred to
to a single State.
Regarding international arbitration, Roque Caivano(29)It states that "there is no uniform position"
regarding which are—among all the possible—those factors that determine in a case
the internationality of arbitration is concretized. Thus, the place where the award has been made is prioritized.
dictated, such as the address or the nationality of the parties, the address of the arbitrators, etc.
The author cites, as an example, the definition given by Article 1 of the UNCITRAL Model Law.L(30), the one that
the following is reproduced:
3) An arbitration is international if:
 a) the parties in an arbitration agreement have, at the time of the conclusion of that agreement, their establishments
in different states, or
b) one of the following places is located outside the State in which the parties have their establishments:
i. The place of arbitration, if it has been determined in the arbitration agreement or in accordance with the arbitration agreement;

ii. the place of performance of a substantial part of the obligations of the commercial relationship or the place with
in which the object of the litigation has a closer relationship; or
the parties have expressly agreed that the matter subject to the arbitration agreement is related to
more than one State.
For the purposes of paragraph 3) of this article:
a) if either party has more than one establishment, the establishment will be the one that has a relationship
narrower with the arbitration agreement;
b) if one party has no establishment, their habitual residence will be taken into account.

6.4. The arbitration agreement

6.4.1. Concept
As has already been mentioned, arbitration "arises from the will of the parties who decide to exclude the
judicial jurisdiction, referring certain contentious issues to the decision of private individuals. That agreement
of wills—which we will generically call "arbitral agreement" or "arbitration pact"—can
to be represented in a single act, or in two successive actsyou(31).
In the last case, we will have an 'arbitration clause' and a subsequent 'arbitration commitment', the
which, while conceptually different, have the same ultimate goal, which is the effective referral of
the contentious issues decided by the arbitrators.
The arbitration clause is the provision contained in a contract by which the parties agree
submit to arbitration all or some of the differences that may arise between them due to
compliance or interpretation of the contract; and the arbitration commitment, subsequent to that, is the agreement
what is celebrated when, indeed, such differences have been presented, complementing and making
the arbitration clause is in effect.
The most modern legislations encourage that the arbitration agreement be made in a single act.

6.4.2. Requirements of the arbitration agreement

Since the arbitration agreement consists of a meeting of wills or convention, it must satisfy the
requirements for existence and validity established for contracts:
Consent: it must not be intrinsically flawed and must have been expressed.
validly.
Capacity: consent must be given by persons who have the ability to bind themselves.
Object: lawful and possible both physically and legally.
§Form: that prescribed by the legal provisions.
6.4.3. The arbitration clause

6.4.3.1. Concept
 user flexible,
receptive user
to develop your imagination to the fullest,
manage with absolute respect when conducting the process.
The presentations and explanations/rules and established modes: regarding the presentations, the
the mediator will refer to those participating in the mediation (in addition to the parties and the mediator, there may be
co-mediators, legal assistants and other advisors, observers) and will indicate the role that each will play
one of them.
The explanations will consist of indicating:
What is mediation, and what are its characteristics?
What are the rules of behavior? And what are the rules of operation? In this case, the mediator
set the rules of the game, outlining how the procedure will be carried out.
The important thing is that there are no doubts and that everyone involved agrees with the rules.
stated.
Subsequently, the parties and the mediator will sign the confidentiality agreement, since—as
it has been mentioned—the mediation procedure is strictly confidential, therefore
the secrecy of all information disclosed in the hearings and the impossibility of
to use it in a later trial.
The second stage—understanding positions and clarifying interests—can be summarized
in one word: 'tell me'. The third party has to establish a relationship with the conflicting parties to see
what the problem is about.
The mediator will attentively and actively listen to how each party presents their perspectives, the
which can be very unclear and distinct. Part of the mediator's work, as a facilitator, consists of
create an environment where the mediators can delve into their stories.
Typically, the participants in the conflict frame the problem in irreconcilable terms and cannot
perceive if they have something in common or that they can share.

At that stage of the 'tell me', the mediator must pay attention to both the content and the relationship.
The content refers to the specific data that is handled when describing the problem. People often think
that the conflict is related to the content, and yet, most conflicts have nothing to do with it
content but with the relationship. The content is used as a way to express what is missing in the relationship(16).

To get the parties to speak, the mediator must connect with them. They must know how to raise
open questions and not reduced; ask questions that expand, to understand what is behind, what it is
what bothers and why.
Then, the mediator will summarize, phrase, or paraphrase what has been said by the parties to:
to demonstrate an impartial assimilation;
to depur negative emotions and accusations;
to ensure about the information;
to obtain agreement from the party on the mediator's oral version; and
to get the other party to hear it from a third party.
Then it will investigate the functional why or the 'for what' of its positions, that is, what it is that
they want to achieve. The true interests must be exposed in the answers. It may be required to
Each part that expresses/phrases in their own words what the interest of the other is.
It should be emphasized that interests, needs, and desires underpin the positions that are taken.
and rest upon the beliefs and values of individuals.
Once an improvement in communication has been achieved and established,
reciprocal, the interests of the parties; the next step is to rethink the situation in such a way that it can
thinking about satisfying the interests of all participants simultaneously.

5.4.2. Second objective: enrich thinking

6.4.4. The arbitration agreement

6.4.4.1. Concept
The arbitral commitment is—like the arbitration clause—an agreement of wills. Through
from the commitment, the parties, after verifying the conflict of interest, agree on the specific aspects
about how arbitration should work.
Its mission is to complement the more general provision contained in the arbitration clause of referral.
the referees of any potential disputes, by specifying them in certain specific points.
Likewise, and because it is a conventional legal act, the requirements apply to it.
general provisions referred to the arbitration agreement and the compromisory clause.

The celebration of the arbitration agreement makes the exclusion of judicial jurisdiction fully effective.
and the submission of differences to the judgment of arbitrators.
It should be noted that the signing of the agreement does not imply the start of the arbitration process, which
It will begin—like any trial—with the filing of the complaint or claim.

6.4.4.2. Content
The content of the arbitration agreement will be variable. As it is generally preceded by a clause
compromising, this agreement will contain all aspects that are necessary for arbitration that do not
have been agreed upon in that.
Unlike the arbitration clause, the arbitration agreement refers to certain disputes.
and its objective is to establish which issues will be submitted to arbitration.

6.5. The referees

6.5.1. Generalities
A frequently cited axiom states that an arbitration procedure is only as good as the quality of
the referees who conduct it. "Refereeing is worth as much as the referee" warned Frederic Eisenman, who was
Secretary General of the International Chamber of Commerce(32).
Roque Caivano(33)it points out that the moral integrity and good judgment of the referee rests on the
reliability and effectiveness of arbitration as a method of conflict resolution.
Among the characteristics that referees must possess, impartiality must stand out.
independence of judgment and neutrality.

6.5.2. The jurisdiction exercised by arbitrators and its difference from judicial jurisdiction
State judges obtain their powers from the set of legal norms they rely on to
the exercise of their functions, they have permanent and generic jurisdiction and resolve cases by applying the
rules that are deemed relevant.
 On their part, the jurisdiction of the arbitrators can have a legal or contractual origin and is limited.
to the time—the one set by the parties—and to the matter—those issues that are submitted to it—. In addition,
the contenders can impose the rules on the referees that must support their decision.

6.5.3. Designation, substitution and challenge

In the event of a conflict occurring and it being scheduled for arbitration, the parties
they must designate the person or people who will serve as referees, provided that they do not
have been included in the arbitration clause.
Usually, the referees are appointed by mutual agreement at the time the
arbitration agreement, that is, after the disagreements between the parties arise. In the
in the case of ad hoc arbitrations, with the involvement of more than one arbitrator, it is common for each party to choose
a referee and they appoint the third one.
Another possibility is that, at the time the conflict arises, there is no agreement regarding the
appointment of the arbitrators, so the parties may initiate a legal action aimed at this purpose.
It must be borne in mind that those who are called to lead the arbitration process should be made
to know their designation and require their acceptance.
When it is necessary to substitute an arbitrator—due to death, incapacity, resignation, recusal—
it should be in accordance with what the parties could have foreseen regarding this (ad hoc arbitration), with what is established in
the regulations of the entity (institutional arbitration) or, in the event of unforeseen circumstances, the designation of
The replacement will be carried out judicially, as legislated by the various procedural regulations.
For the appointment of the arbitrators—and also of the mediators and/or conciliators—it must be taken into account
Present that it can be excused or challenged, for this the grounds that could be indicative are
define the Code of Civil and Commercial Procedure, in its article 17.
The grounds for recusal shall be:

1) The kinship by consanguinity within the fourth degree and the second degree of affinity with one of the
participants, their representatives or attorneys.
2) Having the third party or their blood relatives or relatives within the degree expressed in the previous section, interest
in the dispute or in another similar one, or society or community with one of the parties involved, attorneys
or lawyers, unless the company was a corporation.
3) Having the arbitrator with an ongoing lawsuit with the recusing party.

4) Being the intermediary creditor, debtor, or guarantor of any of the participants, with the exception of banks
officials.
5) Being or having been the third party author of a complaint or lawsuit against the challenged party, or the one who is reported or sued.
for this prior to the initiation of the lawsuit.
6) To be or have been the arbitrator denounced by the challenging party in the terms of the procedural norm.
7) Having been the defending arbitrator of any of the disputants or issued an opinion or ruling or given
recommendations about the case, before or after it has begun.
8) Having received the tertiary benefits of significant importance from some of the participants.
9) To have the intermediary with one of the conflicted friendships that shows great familiarity or
frequency in the treatment.
10) To have enmity, hatred, or resentment against the challenging party that is manifested by known facts.
In no case will the challenge proceed for attacks or offenses made against the arbitrator after that
I would have started to understand the matter(34).
Moreover, if the parties submit their conflict to institutional arbitration, they must comply with what is established in the
regulation of the entity and, in the case of adjusting to amicable conciliation arbitration, nothing prevents
that contractually foresee other grounds for disqualification.
6.6. The award

6.6.1. Concept
The award constitutes the final decision issued by the arbitrators resolving the substance of the matter and giving rise to
the dispute is concluded. It is equivalent, in the judicial order, to the ruling issued by the judges.
For its part, since the jurisdiction of the arbitrators has a conventional origin that is limited to
In this case, the award is the act that concludes their intervention.

6.6.2. Form and deadline for its issuance

The award must be drafted in writing and contain certain minimum formal requirements that allow
to ensure its authenticity, namely:
signature of the referees;
place and date of issue;
data that allow identifying the parties:
a relationship of the facts;
the concrete decision and the reasons that support it; and
the deadline for its compliance.
In the case of legal arbitrations, it must also include a mention of the rules under which it...
supports the decision.
It must be determined within the deadline that the parties have set in the agreement or in the one established by the
rules (arbiters of law). This circumstance is very important, as its non-compliance produces serious
consequences, both regarding the validity of the decision and the responsibility of the arbitrators.
On one hand, it leads to the nullity of the award and, on the other hand, it results in the loss of the arbitrators' rights to
perceive their fees and the responsibility towards the parties for the damages and losses caused.

6.6.3. Content
The award must cover all the issues that the parties submitted to arbitration, not
being able to express oneself about others. This prescription also applies in the case of judgments, since
Judges must limit themselves to ruling only on the subject of the litis.
The ruling on issues not submitted will result in the nullity of the award.
Depending on the type of arbitration—whether it is legal or amicable composition—the award must be
supported and grounded in positive law or in the fair knowledge and understanding of the arbitrator.

6.6.4. Execution of the award

The referees intervene in the conflict and decide on it, but they cannot carry it out.
enforcement of the award, which must be carried out judicially at the request of a party.
For execution, the judge of the place where the award must be fulfilled or to which it would have been assigned shall be competent.
intervention would not have been agreed upon if arbitration had not been established.

6.6.5. Review of the awards

 The award can be challenged through the appeal process and through the annulment process.
The appeal aims for a hierarchically superior body to review the decision of the
referees, being able to confirm, modify, or revoke it. Meanwhile, with the nullity, the aim is to invalidate the
arbitral pronouncement for non-compliance with the requirements imposed by legislation.
As a result, while the challenge for nullity is unavailable to the parties,
the existence of a further appeal instance of the award depends on what they have agreed upon
submit their disputes to arbitration, and in the absence of their silence, what the regulations establish in a supplementary manner.
The appealability of the award is an issue available to the litigants: they can establish an arbitration system.
with a single instance or establish an appeal resource, being able in the latter case to dispose freely
before whom it will be substantiated, as well as the conditions under which it will proceedá"(35).

6.7. Arbitration in Argentine legislation

In our country, arbitration is essentially approached as a procedural matter; and from there it derives.
as a logical consequence that each provincial Procedural Code contains its own regulation of the
matter.
Likewise, and as has already been mentioned in this chapter, arbitration as a means of conflict resolution,
It is also regulated in other bodies of positive law.

6.8. Arbitration in the Civil and Commercial Procedural Code of the Nation
The Civil and Commercial Procedural Code of the Nation governs the procedure that takes place before the
federal courts across the country and before the national courts based in the Autonomous City of
Buenos Aires.
This procedural regulation contains provisions regarding the possibility of submitting issues to arbitration,
execution of foreign awards. Devotes an entire Book to the different arbitration procedures.
Possibility of submitting issues to arbitration
Article 1 of the Code authorizes the extension of territorial jurisdiction in favor of foreign judges or of
referees who act outside of the Republic, except in cases where Argentine courts have
exclusive jurisdiction, or when the extension is prohibited by law.
b.Execution of foreign arbitration awards
The enforcement of awards from foreign arbitration tribunals is provided for in Article 519 bis, always
what:
the requirements of article 517 are met(36);
the issues that have been the subject of the commitment are not excluded from arbitration
according to what is established by article 737(37).
c. The arbitration procedures
The Civil and Commercial Procedural Code of the Nation dedicates Book VI to the Arbitral Process and legislates on:
Title I: Arbitral Trial
Title II: Arbitration Proceedings
Title III: Arbitration Expertise

6.8.1. The arbitration trial (arts. 736 to 765)

The one regulated under the designation of arbitration trial is the arbitration of law.
The arbitrable matter
 According to the provisions of the regulations, any issue between parties may be submitted to the decision of judges.
referees, before or after being deducted in trial and whatever the state of it, with the exception of the
issues that cannot be the subject of transaction.
In item 6.3.2.3., reference has been made to those matters that cannot be compromised and, therefore,
that are not susceptible to being submitted to arbitration.
The arbitration agreement
It is established that the arbitration agreement must be formalized by public deed or private instrument.
or by an act extended before the judge of the case, or before the one to whom it would correspond to know it,
indicating that, under penalty of nullity, it must contain:
Date, name, and address of the grantors.
2) Name and address of the arbitrators, except in the case of the articleo 743(38).
3) The issues submitted to arbitration, along with their circumstances.
4) The stipulation of a penalty to be paid by the party that fails to fulfill the acts to the other party
essential for fulfilling the commitment.
Likewise, it may be agreed:
1) The applicable procedure and the place where the arbitrators shall hear and decide. If it is not indicated
place, it will be the granting of the commitment.
The deadline by which the arbitrators must issue the award.
3) The appointment of a secretary, without prejudice to the provisions of the articleo 749(39).
A fine that the party appealing the award must pay, to the one consenting to it, in order to be heard, if
Do not measure the resignation mentioned in the following paragraph.
5) The resignation of the appeal and the nullity, except in the cases determined in the article
760(40).
The said arbitration commitment is extinguished:

by unanimous decision of those who entered into it;

2) for the duration of the period indicated in the commitment, or the legal one in its absence ...

3) if for three months the parties or the arbitrators have not carried out any action aimed at promoting
the procedure.
The referees
Regarding the arbitrators, it anticipates that they will be appointed by the parties, with a third being able to be chosen.
by the referees appointed by them if so provided, and in the absence of an agreement, the
The appointment will be made by a competent judge; and the designation may fall on persons over
age that are in full exercise of their civil rights. They must accept the position before the secretary of the
They will be dismissed and can be challenged for the same reasons as the judges.

The procedure
If the procedure has not been established, the arbitrators will observe that of ordinary trial, taking into account
the nature and economic importance of the cause.
The award
Regarding the issuance of the award, the arbitrators will rule on all claims submitted to
their decision and within the established deadline. In the event of non-compliance with this deadline, the arbitrators will lack
of the right to fees and will be liable for damages and losses.
The resources
Against the award, admissible appeals may be filed regarding judicial rulings, if not
they would have been resigned in the commitment.
The waiver of resources will not prevent the admissibility of the clarification and nullity requests, when it is
founded on essential lack of procedure, for having ruled the arbitrators outside the deadline, or on points not
committed. In this last case, the nullity will be partial, to the extent that the pronouncement is
divisible.
The hierarchically superior court to the judge who would have understood the deducted resources.
competent if the matter had not been submitted to arbitration, unless the parties have established the
competence of other referees to be aware of them.
Costs and fees
The referees and the friendly conciliators will make a pronouncement regarding the imposition of costs in the
form prescribed by articles 68 and following of the CPCCN. Regarding the fees of the arbitrators,
The court secretary, lawyers, and other professionals will be regulated by the judge (art. 772).

6.8.2. The Judgment of Friendly Composers (arts. 766 to 771)

The procedural rule states that they may submit to the decision of amicable conciliators the
issues that can be subject to arbitration. If the agreement does not stipulate the type of arbitration
—of law or of friendly conciliators—, it will be understood to be of friendly conciliators.
The aspects that differ regarding arbitration are the following:
Recusal
The friendly mediators can only be challenged for causes arising after their appointment. They are
legal causes, the following:
Direct or indirect interest in the matter.
2) Kinship within the fourth degree of consanguinity, or the second degree of affinity with any of the parties.
3) Open enmity with those, due to specific actions.
The procedure
The friendly mediators or equity arbitrators will not be bound by legal forms and must decide
according to your loyal knowledge and understanding.

Deadline for the issuance of the award

If the parties had not set a deadline for the issuance of the award, the friendly arbitrators must
to be issued within three months of the last acceptance.
Resource of nullity
The award given by friendly conciliators shall not be appealable, but in the event that it has been
pronounced outside the deadline or on non-committed issues, the parties may demand its nullity.

6.8.3. Arbitration expertise

In theart. 773, the Civil and Commercial Procedural Code of the Nation regulates the procedure known as
"arbitration expertise", which will be applicable in the case of article 516(41)and when the laws establish it with
the name of judgment of arbitrators, adjudicators, expert or expert arbitrators, to resolve issues of
expressly determined.
It establishes that the rules of the judgment of friendly arbitrators apply, with the parties being required to
referees with expertise in the subject.
The commitment must contain:
§date,
name of the grantors and the arbitrators and
Facts that must be adjudicated.
It becomes unnecessary when the ruling on the matter and the identification of the parties
results are determined judicially when the arbitration expert is provided.
 As for the deadline for pronouncing, if it has not been established, it is thirty days counted from
the last acceptance.
The judicial decision on the adjudicated factual issues will adhere to what is established in the expert report.
arbitral.
Arbitration expertise represents a way—judicial or extrajudicial—to resolve a conflict, for which it
requires a specialist (expert) who does not act in the capacity of an advisor, but rather as a judge. Its
the resolution is binding for the parties and for the judge who designates it. Furthermore, this 'expert report' is
irrevisable due to its own technical condition (it cannot be appealed based on the law that...
which has not been resolved under that condition, but rather under technical or specialized knowledge.
Arbitration expertise is essential to provide a technical opinion on different assessments of
circumstances of fact(42).
In section 6.2.3, issues are mentioned that, according to provisions of positive law, must
to be resolved by applying the procedure under study.

6.9. Obsolescence of Argentine legislation on arbitration and the consequent need for a change
The current rules on arbitration constitute an obstacle to the implementation and development of it.
alternative method for conflict resolution, which promotes the enactment of a special law.
In this regard, Sergio Villamayor Alemán points out that the main issues that threaten this
institute are: "the procedural requirement to enter into an 'arbitration agreement', subsequent to the conflict, the non
legal reception of the principles of autonomy of the arbitration agreement and of the 'competence over the
competition", the lack of regulation of institutional arbitration, the need for the appointment of a
secretary, the provision of a supplementary procedure—ordinary trial—the lack of regulation of arbitration
international, as well as the uncertainty of the competent judge to enforce the award43.
The author states that in almost all countries of the world, laws have been enacted in recent years.
arbitration that allows for greater utilization of this conflict resolution mechanism. In most of
In these cases, these laws were conceived by incorporating the text of the UNCITRAL Model Law on
International Commercial Arbitration or following its guidelines; and, in some countries, they have succeeded
exponentially increase the number of arbitrations, generalizing the inclusion of the arbitration clause
in contracts of all kinds.

6.10. Arbitration in the Professional Council of Economic Sciences of the Autonomous City of Buenos Aires(44)
The Professional Council of Economic Sciences of the Autonomous City of Buenos Aires has been operating since
On June 1, 1998, an Arbitral Tribunal was established with the purpose of providing a definitive resolution to any controversy of a character
heritage that is submitted for your consideration, which will be dealt with and resolved based on equity according to honest knowledge and
understand from their Referees and in accordance with their Regulations.

The Tribunal is composed of a Director, a Legal Secretary, and the Arbitrators that make up its Registry.
Each case is handled by one (single arbitrator) or three arbitrators (Arbitral Tribunal), chosen or drawn by the choice of the
parts, among the professionals of the mentioned Registry. In the event that a Tribunal is involved, usually, each party
Choose a referee and the third is chosen among them or, in the absence of agreement, by drawing lots.

To be able to integrate the roster of the Arbitral Tribunal, the registered professionals must meet the following requirements:
to have a demonstrable minimum of continuous practice of the profession for fifteen years;
uhaber completed a training course that in the first section contains common elements to the
mediators and negotiators, and then the specialization in Arbitration, which consists of 90 hours.
Also, having approved the final work as a requirement to obtain the title of Referee;
In virtue of the fact that his appointment is only for two years, for its renewal he needs to demonstrate that he has
completed a minimum of annual training at the time of re-registration.
Given the wide range of responsibilities of the professionals who register with the Council
(Certified Public Accountants, Bachelor in Administration, Bachelor in Economics, Actuaries) and the different
subjects they are dedicated to, the requesting parties for arbitration services can choose those who are best
They understand the conflicts that are submitted to them.
 The Arbitration Tribunal has been called to intervene, among others, in the following asset conflicts:
Arbitration that resolves disputese(45)pato
decide on the breach of contract between a franchisor and
a franchisee, who, once resolved within the regulatory deadlines, could be executed
by the first in jurisdiction of the Province of Santa Fe.
The discrepancies between an accounting study and a company of the Autonomous City Government
Buenos Aires for the scope and payment of uncontracted auditing tasks, but
agreed upon by the parties.
The existing dispute between the company owning a hotel under construction on the Atlantic Coast and
your opening supplier (doors and windows), referring to the interpretation of the contract in its
temporal aspects, responsibility of the parties, and legitimacy of the billed adjustments.
Establish the responsibility of the sellers of a stock package in relation to liabilities
undisclosed contingents in the complementary documents or in the annexed balances
respective purchase agreement.
The examples presented (conflicts over franchising, professional work, sales, partnerships,
stock transfers, etc.) are just some of the cases that can be definitively resolved.
through the inclusion of arbitration clauses in the respective contracts, which establish the
competence of the Arbitral Tribunal of this Council.

6.11. Arbitration in the Project for the Unification of the Civil and Commercial Codes
The project for the unification of the Civil and Commercial Codes contains important provisions.
related to arbitration.
Regarding this, Carlos I. Guaia(46)It states that "in general, the reform aims—and would partially achieve—
to address the absence of the long-resisted and delayed vernacular arbitration law and addresses many of the
issues claimed by the main doctrine, present both in the Model Law and in the legislations
arbitration laws of the most developed countries and in several Latin American countries. (...) The main novelty is the
regulation of the 'arbitration contract'—which includes both the one entered into by the parties and the one that results
between those and the arbitrators—. Other modifications, such as the express admission of corporate arbitration or the
interruption of the prescription by the filing of the arbitration claim establishes (...) situations
accepted by case law, doctrine, and supervisory regulations.
In the conclusions of his work, the cited author points out some issues that should be addressed to
improve the regulatory treatment of the institute under analysis:
...the establishment of an arbitration contract in the Civil and Commercial Code, threading rules
substantial procedural provisions will lead to an inevitable constitutional collision with
the provincial and procedural rituals with the institutional regulations, all of which, in any
If so, it will inflict a dose of fragility and confusion on the institute with little benefit.
...the regulation of corporate arbitration, in terms notably divergent from those of the 'contract
nominated.
Arbitration is not just a contract. It is so in its genesis, but its object and consequence is a
conventional extension to a private jurisdiction that the law recognizes with sufficient validity to
to resolve a case definitively, which obliges state bodies to recognize its existence and to
execute their provisions occasionally providing recursive solutions particular to the sentences
judicial. As these last essential effects—the res judicata and the jurisdictional hierarchy of the
reports—are absent in the Project...
Carlos I. Guaia believes that the most advisable thing would be the enactment of a federal arbitration law, whose
It could well reproduce chapter 29 of the Project considering the necessary observations.
Below is the text of the Project:
Arbitration Agreement
Article 1649.- Definition. There is an arbitration contract when the parties decide to submit to the decision of one or
more referees all or some of the controversies that have arisen or may arise between them regarding
from a specific legal relationship, contractual or non-contractual.
 Art. 1650.- Form. The arbitration agreement must be in writing and may consist of an arbitration clause.
included in a contract or in an independent agreement. The reference made in a contract to a document
a clause containing a compromise constitutes an arbitration contract as long as the contract is documented by
written and the reference implies that this clause is part of the contract.
Article 1651.- Excluded controversies. Controversies that arise cannot be submitted to arbitration.
about marital status, non-property family issues, and the capacity of individuals. This Chapter
it is not applicable to consumer and labor relations.
Article 1652.- Types of arbitration. They can be submitted to the decision of arbitrators or amicable.
composers, the issues that may be the subject of the arbitration judgment. If nothing is stipulated in the agreement.
arbitral regarding whether arbitration is of law or of amiable composition, or if it is not authorized
Expressly to the referees to decide the controversy according to fairness, it should be understood that it is a matter of law.

Article 1653.- Autonomy. The arbitration contract is independent of the contract it relates to.
ineffectiveness of this does not prevent the validity of the arbitration contract, so the arbitrators retain their
competence, even in the case of the non-existence or nullity of it, to determine the respective rights of
the parties and express their intentions and allegations.
Art. 1654.- Competence. Unless otherwise stipulated, the arbitration contract grants the arbitrators
the authority to decide on its own competence, even regarding exceptions related to existence
or the validity of the arbitration agreement or any others whose assessment prevents delving into the substance of the
controversy.
Article 1655.- Issuance of preliminary measures. Except as otherwise stipulated, the arbitration contract grants
to the referees the authority to adopt, at the request of either party, the precautionary measures they deem appropriate
necessary regarding the object of the litigation. The arbitrators may require sufficient security from the applicant.
the execution of precautionary measures and, where appropriate, preliminary proceedings must be carried out by the court
judicial. The parties may also request the adoption of these measures from the judge, without this being considered
a breach of the arbitration contract nor a waiver of the arbitration jurisdiction; it also does not exclude the
powers of the referees.
Article 1656.- Effects. The arbitration agreement obliges the parties to comply with the stipulations and excludes jurisdiction.
from the judicial courts regarding the disputes submitted to arbitration, except that the arbitration tribunal does not
even being aware of the controversy, and the agreement seems to be manifestly null or unenforceable. In
In case of doubt, the greatest effectiveness of the arbitration contract must be taken into account.

Art. 1657.- Institutional arbitration. The parties may entrust the administration of the arbitration and the
appointment of arbitrators to civil associations or other national or foreign entities whose statutes thus
They foresee it. The arbitration regulations of the managing entities govern the entire arbitration process and
they integrate the arbitration contract.

Article 1658.- Optional clauses. It can be agreed:

a) the seat of arbitration;
b) the language in which the procedure is to be developed;
c) the procedure to which the arbitrators must conform in their actions. In the absence of an agreement, the tribunal
The arbitrator can conduct the arbitration in the manner they consider appropriate;
d) the period in which the arbitrators must issue the award. If no time limit has been agreed, the one that applies is the one...
establish the regulations of the arbitration administering entity, and in its absence, the ones that are established
the right of the seat;
the confidentiality of arbitration;
f) the manner in which the costs of arbitration should be distributed or supported.

Art. 1659.- Appointment of the arbitrators. The arbitral tribunal must consist of one or more arbitrators.
in odd number. If nothing is stipulated, the arbitrators must be THREE (3). The parties may freely agree
the procedure for the appointment of the arbitrator or arbitrators.
In the absence of such an agreement:

a) in arbitration with three arbitrators, each party appoints one arbitrator and the two arbitrators thus appointed appoint
to the third. If one party does not appoint the arbitrator within THIRTY (30) days of receipt of a
request from the other party for it to be done, or if both arbitrators cannot reach an agreement
about the third referee within THIRTY (30) days counted from their appointment, the
 The designation must be made, at the request of one of the parties, by the arbitration administering entity.
or, failing that, by the judicial court;
b) in arbitration with a single arbitrator, if the parties are unable to agree on the appointment
the referee, he must be appointed, at the request of either party, by the entity
administrator of arbitration or, failing that, by the judicial court.
When the controversy involves more than TWO (2) parties and they cannot reach an agreement on the
form of constitution of the arbitral tribunal, the administering entity of the arbitration, or in its absence, the tribunal
judicial, must appoint the arbitrator or arbitrators.
Article 1660.- Qualifications of the arbitrators. Any person with full capacity can act as an arbitrator.
civil. The parties may stipulate that the arbitrators meet certain nationality conditions,
profession or experience.
Article 1661.- Nullity. The clause that grants one party a privileged situation is null.
appointment of the referees.
Art. 1662.- Obligations of the arbitrators. The arbitrator who accepts the position enters into a contract with each one
of the parties and agrees to:
a) reveal any circumstance prior to acceptance or that arises afterwards that may affect
its independence and impartiality;
b) remain in the arbitral tribunal until the conclusion of the arbitration, unless justified the existence
of an impediment or a legitimate cause for resignation;
c) respect the confidentiality of the procedure;
d) have enough time to diligently attend to the arbitration;
e) participate in the hearings personally;
f) deliberate with the other referees;
g) issue the reasoned award and within the established timeframe.

In all cases, the referees must ensure fairness for both parties and the principle of debate.
contradictory, as well as that each of them is given enough opportunity to assert their rights.
Art. 1663.- Recusal of arbitrators. Arbitrators can be recused for the same reasons that
the judges according to the law of the arbitration venue. The recusal is resolved by the entity
arbitration administrator or, failing that, by the judicial court. The parties may agree that the
the challenge shall be resolved by the other arbitrators.

Art. 1664.- Compensation of the arbitrators. The parties and the arbitrators may agree on their fees or
the way to determine them. If they did not do so, the regulation is made by the judicial court in accordance with the
local rules applicable to the extrajudicial activity of lawyers.
Article 1665.- Termination of the jurisdiction of the arbitrators. The jurisdiction attributed to the arbitrators by the
The arbitration agreement is extinguished with the issuance of the final award, except for the issuance of resolutions.
clarifications or supplementary provisions according to what the parties have stipulated or to the forecasts of
right of the seat.

7. CONCLUSIONS
This chapter has addressed the study of some alternative conflict resolution methods.
analyzing their characteristics and the advantages they provide in relation to state justice, which
finds herself overwhelmed and far from providing a service in line with the needs of the community.
Both in negotiation and in mediation and even in arbitration, we notice that the parties that
they are immersed in a conflict and can, through cooperative behavior, find solutions
maximizing their results.
In these procedures, the professional in economic sciences may be called to participate as
mediator or arbitrator and, for this, must be trained. The Professional Council of Economic Sciences of the
The Autonomous City of Buenos Aires has had a School of Mediation for more than a decade.
and Arbitration and, furthermore, within it, the CeMeCo (Mediation Center of the Council) and the Court operate
Arbitral, specialized bodies in the resolution of disputes of a patrimonial, economic nature and
financial.
Likewise, theLaw 26.589(LMC) has introduced the role of 'assistant professionals', allowing for
professionals in economic sciences—among others—who can intervene in Prejudicial Mediation
Mandatory. It is noteworthy that, in the last sixteen years, only a third of the civil cases in which
they went to trial after this mediation began.
Finally, we await the approval of an arbitration law or the unification project.
of the Civil and Commercial Codes with the necessary improvements. This will allow an increase in the quantity
arbitration and will surely provide a more conducive field for our professional performance.
CHAPTER XI

OTHER PROFESSIONAL PERFORMANCES OF THE PUBLIC ACCOUNTANT AND THE LICENSEE IN

ADMINISTRATION IN THE JUDICIAL FIELD, IN MEASURES OF A CAUTIOUS CHARACTER
(ADMINISTRATOR, INTERVENTOR, LIQUIDATOR AND SUPERVISOR)

Eduardo Oreña

1. INTRODUCTION
As a preliminary step to introducing ourselves to the development of this chapter, which will address the others.
professional performances of the Public Accountant and the Bachelor's in Management in the judicial field, in
preventive measures, we believe it is prudent to make a brief summary of the different regulations.
from our positive law, in which different types of precautionary measures are provided.
Thus we will refer to the Commercial Companies Law, to the Civil and Commercial Procedural Code of the
Nation, to the new Law on Concourses and Bankruptcy 24.522, etc.
Within the latest regulations, we will address the treatment of the figure of co-management, both in the
preventive contest like in bankruptcy with continuation of the operation; analyzing the delimitation of
functions between the bankruptcy trustee and the co-administrator, the time extension of their functions, tasks
fundamentals of its management, to ultimately refer to the harmonization of standards related to the
compensation and the functions developed.
Finally, we will address the topic of judicial liquidation, which will be discussed in due course.
it does not exist as an autonomous institute in our positive law, but is a consequence of a measure
preliminary precautionary measure applied to the company and in other special cases.

2. THE INTERVENTION IN THE LAW OF COMMERCIAL COMPANIES

2.1. General preliminary considerations

 Firstly, it should be taken into account that there are basic prerequisites for the application of this
institute, which must be assessed by the tribunal as a preliminary step to the admissibility of the
proper designation.
The figure of judicial intervention in any type of company is primarily a precautionary measure.
what results as an accessory, often posed as an incident, within the framework of an action
the main objective that seeks the removal of the governing body of the company, which must be substantiated
within a summary trial.
The fact of being framed within this type of procedure does not threaten the legal security of
right exercised, but rather aims at seeking some type of solution to the conflict raised in the period
as brief as possible, trying to benefit the passive subject of this action, which is the society itself.
The basic requirements for the admissibility of the precautionary measure under analysis are as follows:
Quality of the applicant's partner.
2) Action for the removal of the administrator.

Exhaustion of statutory resources.

4) Accreditation of the danger and risk in the delay, imminent harm and that it is of such nature that
affect the integrity of the heritage.
5) Preferably documented evidence; mere testimonial evidence is not valid.
Likewise, there must be what is called "counter-guarantee", that is, one that intends to act as a bond.
to ensure compensation for any damages inflicted on the affected party in the event of rejection
(by the final judgment) the removal action, resulting therefore unfounded the claim; that is, in
Initially, it should be in accordance with any potential expenses, fees of the supervisor, lawyers.
participants and other costs of the process.
Finally, and considering that we are dealing with a precautionary measure, it will last for as long as the situation persists.
generative basis of it, and must be established by the competent judge.

2.2. Types of intervention

Regarding the typology established by the Commercial Companies Law 19,550, Article 115 states:
The intervention may consist of the designation of a mere observer, one or several co-administrators, or one
or several administrators.
Mission
The judge will establish the mission they must fulfill and the powers assigned according to their functions, without being able to
to be greater than those granted to the administrators by this law or by the social contract. It shall specify the term of the
intervention, which can only be extended through a summary report of its necessity.
As we can see from the reading of the reproduced article (art. 115), the corporations law classifies the
intervention in three types, namely:
a) overseer;
b) co-administrator;
c) administrator.
Next, we will proceed to the analysis of each of the established subspecies.

Inspector
Firstly, it is worth mentioning that it does not displace the natural social administration. This figure does not limit
its mission is not limited to an inventory of assets or to the verification of a state of affairs, but encompasses the
permanent controls in social administration. Its powers are limited to the
audit and oversight of commercial operations.
 Its specific function is to 'be the eyes of the judge' in a judicial recognition.(1)in this regard he is assisted
the right to participate in the meetings of the governing body, to request all the information that
necessary to carry out its mission, and to inspect any task of the company,
carrying out a task not only of a business nature but a true audit.
From jurisprudence, the designation of a supervisor has been justified in the following situations:
1) For cases of alterations in the company's commercial books and loss of others.
2) In protection of the excluded member.

Delay in the registration of the company.

4) For delay in the presentation and preparation of financial statements when a meeting is called
previous.
5) When the entirety of the shares was negotiated, affecting the very purpose of the company.
6) When the manager, at the date the balance is carried out, does not declare the financial status of the
the society openly states the impossibility of doing so, omitting the citation to the corresponding assembly.
7) The lack of accounting support for the acquisition of goods that are deemed antecedents
necessary for isolated operations, or lack of technical rigor in the preparation of an inventory
circumstantial, etc., in order to ensure the integrity of the corporate assets and the access of the partners to
your knowledge, overseeing the legality in the management of funds(2).
That is to say, the overseer acts solely for the care and custody of the goods, interests, or rights.
controversial, and their powers are limited to surveillance, control, and oversight(3).

2.2.2. Co-Administrator
As a basic premise, it should be noted that the co-administrator does not displace the administration but rather
agrees with this.
It is a subspecies of joint management, where the management of social businesses and the
the judicial co-administrator acts jointly. The latter has therefore been assisting the parties in the
business intervened, therefore, nothing can be done without their presence. They must seek coordination of the
conflicting interests, although without absolute powers of direction or government, and without the possibility that
do not replace the will of the administrators nor take responsibility for the assets of the social heritage(4).
The fundamental tasks of your management will basically aim at:
a) perform those acts that the social contract authorizes to the managers or body of
administration, together with any one of them;
b) ensure strict compliance with the legal standards and tax obligations related to the exploitation of
establishment, being jointly liable with the natural administrators for any
omission;
c) preserve the social funds by depositing them in full into bank accounts;
d) ensure that the company's accounting is properly maintained;
e) avoid disposing of assets and social funds except for ordinary business expenses, remaining the
eventual remainder available for the social assemblies that may take place(5).

2.2.3. Administrator
In this case, the relocation of the directory or the governing body occurs, according to the
in case it is a matter of.

It corresponds to the designation of one or more provisional judicial administrators, removing

temporarily the judge to the company administrators. It is a judicial interdiction on the course of
the society and the functioning of its governing bodies that are provisional
suspended and replaced by a representative of the court acting in the interest of society and in
benefit of the partners(6).
This is the most serious measure that a court can adopt in matters of corporate intervention,
which is why the appointment must be particularly cautious and care must be taken regarding the
compliance with the requirements established by the previously analyzed standard; for example:
origin of the measure, requirements and proof for its promotion and restrictive criteria in its application.

2.3. Legal nature of the intervention

Firstly, regarding the legal nature of the intervention, we reiterate the essential concept.
of precautionary measure that is in itself. This institution will be applicable to the extent that it is configured
In this case, the basic assumptions that were explained at the beginning of this chapter.
From the nature of the institute of intervention and its purposes, several aspects emerge that are
important to highlight:
The basic objective is to protect the rights of the partner and the society.
2) The powers and attributions of the intervenor are those indicated by the judge who decrees the measure.
The auditor must account for his management.
He is required to produce periodic reports regarding his duties.
5) You must require authorization for anything that exceeds the normal course of your mission.

2.4. Conditions to be an intervener

Regarding this point, it is important to emphasize that the law does not establish specific guidelines and that
Here it is necessary to gather the different doctrinal positions.
By virtue of this, let us say that the doctrine, in general, disagrees regarding the person in which it can be
re-establish the role of an inspector. There have been mixed opinions regarding whether the inspector should
to be one of the partners or a stranger to the society. Prudence in these cases advises to choose—
and the majority leans towards that alternative - for a strange non-partner; the same criterion is adopted by the Code of
Civil and Commercial Procedures of the Nation.
Regarding the subject's professional skills (here the law does not say anything either) the appointment
it could fall on a university graduate with a law degree, or for those cases in which the
control is related to accounting and economic aspects, the appointment of a
public accountant or a degree in administration.
Entering into what is established in other legal regulations, we can mention what the new law establishes.
Law on Bankruptcy and Insolvency in itsart. 259, when he speaks of the co-administrators who will have to
acting in the continuation of operating a failed company must be specialized individuals
in the respective field or university graduates in business administration.
Finally, and in light of the silence observed by the Commercial Companies Law, it is appropriate to resort to what
establishes the Code of Civil and Commercial Procedure of the Nation (amended by law 22,434). In its
Article 225, section 2, provides a broad guideline regarding the qualifications of the person to be appointed when it states:
The appointment will fall on a person who possesses the necessary knowledge to perform.
depending on the nature of the goods or activities in which it will intervene; it will, if applicable, be an outside person
to the intervened society or association.

2.5. Attributions, duties and functions

 As a preliminary step to performing the task for which he has been designated, it is appropriate that the
The auditor takes office, which is normally carried out by a court officer.
which acts by express judicial mandate issued by the intervening court.
It should be noted, first and foremost, that the management of a judicial administrator is independent.
of the reasons that motivated his appointment, having to focus on the development of the assigned task
within the framework of powers, legal authorities, statutory provisions, and in accordance with the class
of intervention with which he has been appointed, and that have already been developed in the preceding points.
Likewise, and although the task of the intervenor is non-delegable, he may request the appointment of
assistants (professional or not) and hire employees, but resting on a basic principle which is
the prior authorization of the intervening court (CPCC, art. 225, in fine) to which we could add: always
that, objectively, the circumstances, quality, and quantity of the task so prudently advise.
Finally, regarding the duration in office, it must stem from the appointment resolution and
It can only be extended by a reasoned order.

2.6. Fees
The regulation under analysis, that is, thelaw 19.550does not foresee a specific compensation system in favor of
the judicial supervisors, therefore, in this case, we must refer to the Tariff Law
Professionals of Lawyers and Attorneys (21,839), to jurisprudence, doctrine, and procedural norms and
existing professionals in the field, who establish the following parameters:
1) No gratuity: as a general principle, it is assumed that every task should be compensated.
2) Regulation: as a basic principle, fees must respond to a regulation by the
tribunal.
Article 227, second paragraph, of the CPCC, establishes that the regulation will take into account the nature
and modalities of the intervention, the amount of the profits made, the importance and effectiveness of the
management, the responsibility involved in it, the timing of the action and the other circumstances
of the case.
When it comes to legal professionals—lawyers and attorneys—in the Capital area
Federal will be applicablelaw 21.839of the fees for lawyers and attorneys (arts. 15, 16, and 51),
which will be analyzed later in this chapter.
3) Perception time: in relation to the perception time of the fees, we can mention
several assumptions:
a) one of them would suggest that it is not necessary for him to complete his function to receive payment,
In that case, a periodic remuneration could be set (it could be monthly);
b) another of the assumptions would be to receive them once the final report of your management is approved, this is
it derives from the regulations established by article 227 of the CPCC;
f) finally, and in the event that its function extends over time, it can be considered the
advance payment system in reasonable proportion from the perspective of fees to be ultimately received.
4) Obliged to pay: there are different jurisprudential positions on this matter:
a) in an extreme case it is established that society is obligated to pay regardless of what it was
condemned in costs (requesting partner), and even if the mandate had been revoked,
regardless of the resolution on the costs;
b) another position mentions that the court-appointed trustee has the right to initiate the action (for the entirety of
credit), first against the convicted party for costs, then against the company (once the assets are realized)
social) and ultimately against any of the litigants;
c) in another case, it was established that the one who requested the measure bears the costs of the supervisor.
 3. THE INTERVENTION IN THE CIVIL AND COMMERCIAL PROCEDURAL CODE OF THE NATION

In this section, we will refer in a synthetic way to the figure of the judicial intervenor, no longer from
the regulations issued by the Commercial Companies Law, but we will do so from a point of view
wider, that is to say, we will refer to the treatment that the Code of Civil and Commercial Procedures of
the Nation gives to the institute.

As defined by Lino E. Palacio(7)we can say that:

From a general point of view, judicial intervention is called a precautionary measure under which a person
designated by the judge, in the capacity of an external assistant to him, interferes in the economic activity of a natural person
or legal, either to ensure forced execution or to prevent harmful alterations from occurring in the
state of the assets.
From the preceding statement, we can infer several essential aspects of judicial intervention:
1) The undeniable nature of precautionary measures.

The judicial supervisor is an assistant to the judge.

3) The interference that—more or less—will have in the life of a natural or legal person.
Finally, this measure is taken in order to prevent further damage.
The topic is addressed in the Code of Civil and Commercial Procedure of the Nation in articles 222 to
227.
The first of the cited articles refers to the fact that beyond the precautionary measures of intervention
judicial considerations provided for by substantive laws (understood as such theart. 1684of the Civil Code and the
Articles 113 to 117 of the Companies Act provide for the measures set forth in the articles.
subsequent.
The intervention figures contained in the examined regulation correspond to the intervenor.
collector (art. 223) and reporting auditor (art. 224).

3.1. Collection Officer

The designation is contemplated by art. 223, which states:
At the request of the creditor and in the absence of another effective precautionary measure or as a complement to the one provided, it may
designate a collecting inspector, if it must fall on income-generating assets or fruits. Its
The function will be limited exclusively to the collection of the seized portion, without any interference in the administration.
The judge will determine the amount of the collection, which cannot exceed 50% of the gross receipts; its amount
must be deposited to the order of the court within the deadline that it determines.
The appointment of a collection supervisor is generally a complementary measure to a seizure,
and that in turn should have been based on income received successively (such as fees
professionals, rentals, etc.). It is also a requirement for its processing that the recipient of
the embargo has not complied with the request regarding the deposit of the seized sums.
For its part, and in what concerns the collection itself, it must cover the capital in claim.
more interests and costs, and as it will not be collected all at once but in successive withholdings,
the judge must establish the percentage that must not be exceeded by the collector, in order to preserve the
normal development of the exploitation.

3.2. Informant intervenor

This figure is regulated by article 224 of the CPCC, which states:
"By virtue of his position or at the request of a party, the judge may appoint an informing intervener to report on the
state of the assets subject to the lawsuit or the operations or activities, with the frequency established in the
provision that appoints him.
 This type of intervention aims for the designated official to monitor and report to the court regarding the
administrative management developed by the intervened person or regarding those assets that are the object
of litigation.
As established in the article under analysis, the measure can be determined ex officio or at the request of
part. According to the interpretation found in various provincial codes, it would be a figure similar to that of
"auditor" and would be in an intermediate stage between the fiscal auditor and the judicial administrator.

3.3. Duties of the overseer

In Article 226 of the regulation under study, the duties of the auditor are defined; in relation to this we can
mention that:
First of all, you are required to perform the position personally and in full accordance with
the directives issued by the court.
2) You must submit reports with the frequency established by the judge, and a final report upon conclusion of your
committed.
3) You should avoid adopting measures that are not strictly necessary for compliance with your
committed, that compromise their impartiality regarding the involved parties or that may
to cause damage or detriment.
Finally, it establishes that if it does not effectively fulfill the function assigned to it, it may
to be removed ex officio. In the case that it was at the request of a party, it will be communicated to the others.
interested parties and the intervenor himself.

3.4. Fees
The last of the articles we will analyze is article 227, which refers to the issue of fees.
Beyond the text of the mentioned article that will be transcribed below, we can mention that there exists
an immediate prerequisite for regulating the fees of the judicial monitor is the approval of the
accountability that he himself carries out. But when his task extends over time, the judge may
set provisional sums to be received as advances and which must be proportionate to the amount
total final of the emoluments.
For its part, we believe it is also important to highlight that the intervenor is prohibited from agreeing on fees,
pointing out the impartiality and honesty that the designated professional must observe in the
pursuit of its mission.
The text of the referred article is as follows:
The auditor will only receive the fees to which he is entitled, once the final report is approved by the court.
of its management. If its action were to extend for a period that, in the judge's opinion, would justify the payment of
advances, prior transfer to the parties, these will be set in an appropriate proportion to the eventual total amount of their
fees.
For the regulation of the final fee, the nature and modalities of the intervention, as well as the amount of
the profits made, to the importance and effectiveness of management, to the responsibility involved in it, to the duration
from the performance and the other circumstances of the case.
The removed intervener has no right to charge fees due to abusive exercise; if the removal is
Due to negligence, the right to fees or the corresponding proportion will be determined by the judge.
The fee agreement made by the auditor will be null and will constitute an abusive exercise of the position.

4. THE INTERVENTION IN THE PREVENTIVE CONTEST

 In this section, we will address the topic of intervention in the specific context of the new Law.
of Contests and Bankruptcies, but specifically in reference to cases where some type of interference is anticipated
in the society that has requested and obtained the opening of its preventive concurso.
That is to say, in the first instance, we will analyze the assumptions contemplated by articles 17 and 43 of the regulation.
cited.
The first type of intervention we are referring to, similar to the one analyzed previously at
studying the Companies Law differs from co-management - which we will refer to in the section
next—for the case of bankruptcy with continuation of the operation, fundamentally because it is about
a penalty imposed on the natural administrator of the bankrupt company.

4.1. As a sanction for acts committed

In this regard, it is worth mentioning that the modification made to the bankruptcy regulations still maintains the
text of the previous regulation, according to what is established by theart. 17of thelaw 24.522how much for him
in case the debtor performs acts in contravention of the provisions of arts. 16 (prohibited acts)
25 years old (trip abroad) u:
...hide assets, omit the information that the judge or the receiver requires, incur in falsehoods in which
if it produces or carries out any act to the evident detriment of the creditors, the judge may remove it from administration
for self-founded and appoint a replacement...
...according to the circumstances of the case, the judge may limit the measure to the appointment of a co-administrator,
a supervisor or a controlling inspector...
As is clear from the transcribed regulations, and as several experts such as Argeri and Zavala opine
Rodríguez, who in turn cites Quintana Ferreyra and Alberti.(8)what has been prioritized is the
conservation of the company, sanctioning - with measures of varied degrees according to the case - the
blameworthy conduct of the administrator.
For their part, as Fassi and Gebhardt explicitly clarify(9)the appointment of an administrator,
co-administrator, overseer or controlling intervenor does not modify in any way the powers of the committee of
creditors, that is, they are not replaced or overlapped with any of the possible degrees of intervention
that the magistrate disposes.
Notwithstanding all that has been stated, the judge—taking into account the type of conduct or act committed by
he or the administrators may consider the declaration of the company's bankruptcy preventing the
proceeding with the concordat process.
Finally, on this point we understand—and this is expressed by Quintana Ferreyra and Alberti.(10)no
It would be fair that the eventual obstinacy of the administrator in not providing information, distorting it, or
absenting oneself from the outside without authorization, would lead to the declaration of bankruptcy of the social entity.

For this reason, we consider that the precautionary measure of intervention is logical then.
society to prevent further harm to creditors, while allowing them to continue with the process
has started.
We will next refer to the different sanctioning precautionary measures that the law authorizes to
to take.

4.1.1. Appointment of a substitute

For the case of the appointment of a replacement for the administrator of the insolvent party— that is, already
overcoming the prior discussions regarding the origin and scope of the measure—we would have to
let's focus on analyzing some essential aspects of it.
In this sense, and as a basic premise, it is understood that the designated official will have the same
faculties and restrictions that the law grants to the bankrupt debtor; this means that it must
to submit to the provisions of articles 15 and 16, and of course, without any modifications to the
powers of the syndic. All of this without prejudice to the own framework of action that the judge may set.
moment of the designation.
4.1.2. Other measures
For its part, and in the case of being the appointment of a co-administrator, it is understood that the same
must act together with the debtor, maintaining his ability to manage and continuing, for
therefore, fully authorized to intervene in the processing of the trial.
Also, as the text of the law itself mentions, a supervisor or inspector may be appointed.
controller (a milder measure as seen in the specific sections) with the powers that will emanate
from the judicial designation itself.
As for the suitability conditions that the replacement administrator should meet—
generally speaking—, the consulted scholars agree that in the face of the silence of this part of the
law, the provisions set out in article 259 of the same legal body should apply in the case of bankruptcy, that is to say:
...specialized professionals in the respective field or university graduates in business administration...

4.2. Management of assets in the interest of creditors

Next, we will refer to one of the assumptions contemplated within the established regulations.
by Art. 43 of the new Bankruptcy and Insolvency Law, that is, the chapter relating to the content of the
proposal for agreement.
This article, which refers to the 'exclusive period' and 'settlement proposals', contains among others
the assumption of '...management of all or part of the assets in the interest of the creditors...', which was
gathered from previous legislation. In this regard, we can mention that there is no single way to
management of the debtor's assets and which will vary according to the type of proposal to the
that in practice we are referring to, since it may consist of the administration of one or
all the debtor's companies according to the interest at stake. Likewise, this administration can be
carried out by one or more creditors, designated by themselves for that purpose, or falling on a third party
strange.
The determining factor in this case is the interest to be protected that is directed towards the payment of credits without interference.
or to reduce productive activity while always taking into account the discounts and payment methods that
eventually be proposed. For its part, the duration period will be specifically established, which may be
to consist of a specific time period or a conditional one—that is, subject to the realization of an event—
once fulfilled, the intervention would no longer make sense.
In any case (whether the administration is in the hands of a creditor or a third party unrelated to the
interests at stake), their performance will be subject to potential liability for poor performance that could
resulting from your management, this by analogical application of theart. 59of the Commercial Companies Act.

4.3. Business rescue:art. 48from thelaw 24.522

Notwithstanding all of this, it is appropriate at this stage to dedicate a few paragraphs to the new modifications.
introduced by the new Bankruptcy and Insolvency Law regarding what was contemplated by the previous regulations.
This is the introduction of the so-called exclusivity period and the possibility of cramdown.
This institute determines in the case where the debtor does not obtain the necessary approvals for that
your proposal be approved, avoid bankruptcy, through the process regulated by theart. 48of thelaw 24.522y
the modification of its paragraph 1 and the inclusion of article 48 bis by thelaw 26.684, also known as
Cramdown or business salvation, taken from American legislation, albeit with its variations.
That is to say, once the exclusivity period has expired, without the bankrupt party having obtained the
necessary conformities, a registry is opened in the court so that creditors or third parties
interested parties in the acquisition of the company (with the exclusions contained in the regulation itself) shall carry out
their acquisition offers of the ongoing company, through the purchase of shares or quotas
representatives of social capital. That is to say, a concept that has until now been nonexistent in
positive law; the possibility for the company to continue operating independently
of the interest of its holders.
Upon the presentation of acquisition proposals, interested third parties must comply with all
the steps inherent to obtaining the approvals, once achieved the judge will issue the resolution
awarding the company to this new holder.
In this regard and considering the different procedural steps that must be respected in accordance with all the
the procedure established by the bankruptcy law indicates that the period we just
to briefly describe, which starts from the expiration of the exclusivity period, involves a
net temporary duration that is approximately equivalent to six calendar months. For its part, if
we calculate the deadlines from the filing in bankruptcy, we conclude that to ratify
an agreement presented by a third party under the corporate rescue regime established by Article 48 of the
The law on contests and bankruptcies takes approximately 15 months.
The big question that stands out is:
Who will manage the company in crisis during that time?
On one hand, we have the businessman, who has failed in his attempt to reach an agreement with his creditors.

On the other hand, different registered stakeholders for the rescue can coexist, but they are not
legitimized to intervene in the administration.
Lastly, the presence of the creditors' committee and the trustee is accounted for, but none of them are
has been assigned the task of managing the company during this period.
Given that the law has not provided anything regarding this, it is only possible to rely on precedents and judge accordingly.
concretes, such an inquiry may be satisfactorily unveiled(11).
In our view, in this emergency, the appointment of a judicial administrator is appropriate, who can very well
to fall back on a professional in Economic Sciences.

5. THE CONTINUATION OF OPERATIONS IN THE BANKRUPT COMPANY

Next, we will refer to the topic of the bankrupt company and the institute of continuation of the
exploitation of the failed estate.
The incorporation of this institute arises in the bankruptcy regulations from the enforcement of law 19.551
and other legislative background taken into account in its sanction, and as a necessity in response to the consequences
that presents the state of bankruptcy of a company in the economic and social context of the country.
This is how Foiguel López expresses it.(12),
who adds that among the foreign backgrounds, it was taken into
tell the concept of the company in France, where survival matters to the community, because it
It rescues the concept that the bankruptcy of the company does not imply the bankruptcy of the activity, but rather of the individual.
that exploits it (understood as 'entrepreneur').
In that line of thought and in order to clarify the concept and the importance of the institute under analysis, it is necessary to
that a classification is made—as the cited author does—regarding the two subspecies of the
bankruptcy with continuation of activities:
1) Direct bankruptcy: it is when, at the request of the debtor or any creditor, bankruptcy is declared.
my crisis.
2) Indirect bankruptcy: when it occurs after being processed in preventive competition, that is to say, it is decreed
the bankruptcy due to its failure.
In the first case, one can await the exit by the path of "conversion" in bankruptcy.
preventive, while in the liquidation bankruptcy, the law prioritizes the possibility of carrying out the
company in progress
In all cases, the syndic must immediately focus on responding practically to two
questions:
1) If exploitation can continue.
 2) How and with what to do it.

And here we must keep in mind that for the continuation of exploitation to be possible
failed estate required:
1) Legal feasibility.
2) Economic-financial viability.
3) Harmonization of legal and economic elements within a previously established chronological space
and that it is not altered.

4) A continuous execution involving a jurisdictional decision-making level (judge) and an operator.

economic with "business" decisions (trustee and/or co-manager), which also must
to harmonize regarding the substance of the issue in the management of time.
This institute was not created for the purpose of the court, the syndic, and/or the co-administrator to become
business owners, trying to remedy or reverse the situation to which the entity has arrived due to ineffectiveness, negligence or
other circumstances that are not worth enumerating, but which aim, first of all, and this is how it is expressed
own text of the law in its article 189 (amended byLaw 26,684):
...if the interruption could result in evidence of a serious damage to the interests of the creditors and to the conservation
of heritage..."
Likewise, there is a goal, by continuing with the main activity or a financially profitable ancillary one that
the debtor was developing, the increase of the insolvency asset on one hand; secondly, the fact that
selling an ongoing business presumes—prima facie—a higher realization value at the time of the
sale and more so if it is done in bulk, which will ultimately result in a greater benefit for the masses
of creditors.
The substantive regulations regarding this topic are established in the new Bankruptcy Law and
Bankruptcies, in articles 189 and subsequent. The new text of the law incorporates the concept of
"exceptionality," which, although it was underlying in the previous text, is mentioned in this case.
explicit form.
As a result, the resolution of the continuation of the exploitation of a failed entity must contain the
time lapse during which such prosecution will be maintained and on the other hand must determine with what
The activity or activities of the exploitation will continue.
Another relevant aspect to consider in the decision to continue is related to the
amount of staff to maintain, which will obviously be able to be reduced in its workforce.
At this point, we understand that it is appropriate to clarify some concepts that, in our opinion, are
it is necessary to differentiate in order to understand the importance of the institute of continuation of the
exploitation.
a) There is what we might call a conceptual fallacy in the majority of the consulted literature, which
more or less it is expressed like this:

If the company did not work in the hands of an entrepreneur, it will function even less in the hands of managers.
judicial.
We understand that it is a fallacy because, in reality, the situation that the administrators are going to face
Judicial actors (understood as: syndic, judge, and/or co-administrator) are very different from the reality in which they exist.
Hello, immersed in the businessman.

The judicial administrators do not bear the weight of the bankruptcy liabilities on their shoulders, the
maintenance of all personnel or that of the entire business structure. That is to say, the administrators
Judicial authorities do not bear the burden of restoring the economic viability of the companies of the insolvent parties.
They will take care of the management of the operation that, prima facie, is profitable or whose
maintenance is appropriate for the purposes of the process and always keeping in mind the achievement of
assets in a more or less immediate form and whose ultimate purpose is the increase of net assets
falencial.
For greater clarity on the subject, we consider it important to make an adequate conceptualization of the
following elements:
Failed subject: it is the natural or legal person that has been declared in a state of bankruptcy. That is, just as
Quintana Ferreyra and Albert define it.i(13):
 ...a legal subject in a state of dispossession...
2) Company: on the contrary, it is the entity or establishment that is the object of the activity within the
legal organization of the failed. That is to say, using the words of the aforementioned authors;
...the activity carried out through the assets of that subject, insofar as it constitutes an object of law...
5) Governing body: it may or may not coincide with the bankrupt subject. It is, ultimately, the coordinator of
the activities and where the factors that contribute to the development of exploitation converge.
From the results of the previous differentiation, we have that the declaration of the state does not necessarily
the bankruptcy of an individual implies the conclusion of the activity that they were conducting; confusion in the
that some theorists fall into, by which the subject is being assimilated with the object.
b) Finally, it is important to highlight the social interest that may be involved in the continuation of an activity.
considered convenient for the economy of the community in which it is located. By way of example
we can mention some of the beneficiaries of this situation:
Interest of creditors in continuing to sell
Employees who retain their jobs
Eventually, customers in order to continue with the supply and avoid possible monopolies.
Unions to continue collecting contributions from members
Public organizations in general: local or regional importance, tax collection, etc.
Having made these clarifications, we will now address the specific issue of the continuation of
the exploitation.

5.1. Immediate continuation

As has been said, the current regulations begin the treatment of this institute from art. 189,
where it establishes the general budgets for its application and expressly includes the treatment of
public utility companies.

5.1.1. General budgets

The general budgets for immediate continuation explicitly result from the regulations.
established by theart. 189of the Bankruptcy and Insolvency Law (amended by theLaw 26.684) when in your
the text expresses that:

...if the interruption could result in evidence of serious and irreparable damage to the interest of the creditors and the
conservation of heritage...
From the reading of the previous text, we see that the legislator is attentive, maintaining in this case the same
text that in the previous legislation addresses two fundamental issues when it speaks of serious harm and
irreparable, what are the interests of the creditors and the preservation of assets.
This mention is not arbitrary, since in any case what is ultimately being addressed
safeguarding is the future perspective of increasing the asset to be carried out afterward, giving this
a prevalence at the beginning of the "adequate protection of credit" over the "general interest".
The trustee is obliged to inform the judge of the need for immediate continuation within
within 24 hours of declaring bankruptcy, the court may also declare it on its own initiative. Without prejudice to
Hello, the judge always retains the possibility of deciding what they deem appropriate regarding the continuation.
including this termination, a fact that is made explicit in the aforementioned article when it states:
...the judge can take measures that he deems appropriate, including the cessation of the operation...
That is to say, here, as expressed by Fassi and Gebhardt(14), the law grants the judge the authority to issue
such a decision based on reasoning can arise from a new assessment of the general interest that would be made
himself or whose continuation would be counterproductive to the interests that are intended to be protected.
5.1.2. Public service providers
Here the assumption of companies that provide public services is introduced, partially following the
ordering of the previous art. 193 of law 19,551, which is the immediate continuation in the case of 'services'
públicos imprescindibles", estipulando las siguientes normas particulares:
1) The bankruptcy ruling must be communicated to the authority that granted the concession or to whoever it may be.
relevant.
2) If the judge decides, under the terms of article 191, that the continuation of the business is not possible, he must
report it to the relevant authority.
The competent authority may decide what it deems appropriate to ensure the provision of
service; the obligations arising from that provision are foreign to bankruptcy.
4) The effective cessation of exploitation cannot occur before thirty days have passed since the
communication to the corresponding authority.
In this case, the report from the syndic, provided for by Article 191, should not be expected, although it must be made.
Then formulated. As examples of activities that must be continued without interruption. We can cite:
electricity service providers,
of gas,
phones.

5.2. Deferred continuation

As emanates from the regulations established by theart. 190 from the Law of Bankruptcy and Insolvency
(modified by theLaw 26.684)there is a common procedure for all bankruptcy cases, which is that:
...the syndic must inform the judge within twenty calendar days counted from the acceptance of the position,
about the possibility of continuing with the exploitation of the failed company's business or any of its establishments and the
convenience of selling them on the go...
In this sense, we can then say that, procedurally, the decision to continue the
exploitation part of the report of the syndic, which must be presented in all bankruptcy proceedings, without
Import for this the manner in which it has been declared—that is, directly or indirectly.
Likewise, in the event that an immediate continuation has been decided—whether by court order
at the request of the union official himself, the referred report must also be submitted. If it has been
As a result of a request from the syndic himself, this report would only confirm (and otherwise,
I would rectify) what was requested in a timely manner. Therefore, it is understood that this requirement is aimed at substantiating
appropriately and with all the necessary elements the decision to continue the exploitation.
For its part, the law establishes the specific aspects on which it must be issued:
The possibility of maintaining operations without incurring new liabilities, except for the minimum necessary.
for the operation of the company or establishment.
The advantage that would result for creditors from the sale of the ongoing business.
3) The advantage that may result for third parties from the maintenance of the activity.
4) The exploitation plan, accompanied by a well-founded resource budget.
5) The ongoing contracts that must be maintained.
6) In your case, the reorganizations or modifications that must be made in the company to do
economically viable for its exploitation.
The collaborators I will need for the management of the operation.
8) Explain how the existing liability is intended to be settled.
 Regarding these aspects, the law clearly reaffirms the concept of exceptionality to the possibility of
continuation. As Fassi and Gebhardt state(15)and paraphrasing them, the legislator's objective
Coherently with the concept presented, it is that through a structured and complex report, it remains
ostensibly established and founded the chosen path. It must become a vital element.
for the issuance or non-issuance of the relevant resolution, allowing the judge to assess through it the
benefits and drawbacks of the application of the institute that concerns us.

5.3. Conditions to continue with the activity

Next, we will analyze the variables that need to be considered to determine the viability.
of the continuation of the exploitation, those which will be fundamentally related to the 'company' whose
the activity is desired to continue, isolating from the study those other factors that may have caused the
crisis of the failed.

5.3.1. Factual viability

Conceptually we can outline it as:
a) technological capacity for the production of goods and services, that is, to have a capacity
installed that allows for the continuation of a productive activity;
b) existence of a market for the placement of the goods to be produced;
c) existence of sufficient human resources to face the continuation.

5.3.2. Financial viability

It essentially aims to analyze the existence of the essential financial resources for development.
of the businesses.
If there is not enough working capital, it is possible to resort to:
the sale of superfluous goods, in order to raise funds to be applied to the ongoing activity,
with the aim of reorganizing and/or increasing the working capital;
•obtaining credit: as in the case of the bankruptcy of Jabón Federal where credit support was obtained
from the Bank of the City of Buenos Aires;
possibility of economic combination with third parties who can provide the necessary working capital:
such is the case of Cuareta S.A. Volcán, where third parties provided the necessary financial resources to
the continuation.

5.3.3. Economic feasibility

The economic viability is:
The possibility that the activity can become self-sustaining and/or generate a profit or at least some benefit.
measurable for the creditors or, if applicable, for the debtor.
This study consists of an analysis that starts from a specific present situation and projects it into the future.
In other words, it is necessary to estimate what the future evolution of the entity might be based on the reality of the
present.
The factors to consider for the projection are as follows:
a) definition of the establishment or production lines that can be continued;
b) human resources to maintain;
 c) revenue projection from the sale of goods and services;
d) determination of the profit margin to be obtained from the activity.
The financial cost of the bankruptcy liability and the charge will not be taken into account for its determination.
amortizations of the assets in use, as they are obligations that do not fall on the continuation, in
the first case, and for being non-financial charges, the second ones.
The result of the indicated projection can be positive or negative. If the profitability is positive and does not
If there are no other impediments in sight, the continuation of the operation would be advisable.
However, and in the event that the projection has yielded a negative return, it
the analysis should be deepened to reach a definitive conclusion, since even with a profitability
Negative, it may be economically convenient for the continuation of the activity.

5.3.4. Economic convenience

As we mentioned, the fact that there is no expectation of positive profitability does not imply,
necessarily, discard the possibility of continuing with the activity.
And this is so whenever obtaining a definitive impression, it is also necessary to evaluate the
alternatives that are proposed when the establishment remains inactive.
As an example, we can cite the following situations:
a) custody and maintenance costs of the establishment that must be incurred
regardless of their activity;
deterioration of assets due to the passage of time, obsolescence, etc., that can cause a
decrease in the value of the asset to be realized;
c) highest value that can result from the sale of the ongoing establishment and/or in bulk with respect to
that can be obtained through the realization of the goods that compose it in a singular manner;
d) finally, it is worth mentioning the potential savings that could be obtained from the sale of the establishment
in progress, due to the possibility of transferring the obligations arising from the contracts
employment of personnel in a dependent relationship, which would come to depend on the new owner.
It is clear that, in this case, what is obtained is the reduction of the bankruptcy liability instead of a
greater amount from the sale of the asset, which also benefits the creditors.

5.4. Regulatory framework for continuity

Starting the analysis of thearts. 191 a195from thelaw 24.522 of contests and bankruptcies with the
modifications included in them by theLaw 26.684,we have the theme regarding the authorization of
tribunal that will allow the continuation, the applicable regime, the issues of lease contracts and the
situation of mortgage and pledge creditors in relation to the continuation of the operation.

5.4.1. Authorization for continuation

Regarding this, article 191 establishes that the authorization must be given by the judge, only in the case of
that its interruption could lead to a serious decrease in the realization value or that it would be interrupted
a production cycle that could cause serious harm to heritage.
This reference specifically points to all those operations in which—such as the case of the high
ovens or agricultural-livestock companies—the interruption of the process impoverishes the assets to be carried out
posteriori.
 The cited article goes on to establish the points on which the judge must rule as
minimum—and within 10 days after the presentation by the trustee of the report provided by
Article 190 - refers to:
1) The exploitation plan, for which advice may be sought from experts or specialized entities.
2) The period for which the exploitation will continue; for this purpose, the cycle and the time will be taken into account.
necessary for the alienation of the company; this period may be extended only once by
founded resolution.
The quantity and professional qualifications of the personnel that will continue to be assigned to the operation.

4) The goods that can be used.

5) The appointment or not of one or more co-administrators and the authorization for the syndic to contract
administration collaborators.
6) The ongoing contracts that will be maintained; the others will be resolved.
From the modifications introduced by thelaw 26.684now
a) The resolution that rejects the continuation of the operation is appealable by the trustee and the cooperative.
b) When the continuity of the operation of the company or any of its ...
establishments by two-thirds of the active personnel or the creditors
workers, organized in cooperatives, even in formation, the State must provide assistance
necessary technique to move forward with the business pivot.

5.4.2. Applicable regime

Article 192 modified by thelaw 26.684establishes the legal framework within which they can operate
judicial officials (trustee and/or co-administrator), or the work cooperative, as the case may be, to
to know
They are considered authorized to perform all acts of ordinary administration that correspond.
to the continuation of the exploitation;
2) For acts that exceed that administration, judicial authorization is required, which will only be
granted in case of evident necessity and urgency;
In such case, the judge may authorize the establishment of special guarantees when it is appropriate.
indispensable to ensure the continuity of the operation (not applicable in the case of cooperatives
of work).
4) The obligations legally incurred by the operator of the exploitation have preferential status.
the creditors of the bankruptcy;
5) In the event of revocation or termination of the bankruptcy, the debtor fully assumes the obligations.
legally contracted by the person responsible for the operation;
6) The goods assigned with a special privilege can only be disposed of after satisfying the creditor.
preferably or substituting said goods for others of equivalent value.
Finally, the regulation under study establishes, in the last paragraph, that the judge can put an end to the
continuation before the established deadline, by reasoned resolution, if the management were to result in a deficit or
In any other way, I will harm the interests of the creditors.

5.4.3. Lease Agreements

Here we enter into the analysis of what is established by theart. 193of the Bankruptcy and Insolvency Law that deals with
about lease contracts. It states that in the case of the continuation of the exploitation
immediate or deferred, and when in the latter it has been exposed the convenience of carrying out in bulk
of the assets, pre-existing lease agreements must be maintained, and the bankruptcy will respond
directly for the leases and other future consequences. Finally, it establishes that they are null.
the agreements that establish the termination of the contract by the declaration of bankruptcy.

For its part, article 194 establishes that those issues raised by the landlord do not impede the course
from the operation of the failed company or the disposal of the company provided by theart. 205of the Law of
Contests and bankruptcies must be considered in the relevant bases.

5.4.4. Mortgage and pledge in the continuation of the business

For its part, the modified article 195 byLaw 26.684it mentions that those creditors who have
special privilege (mortgage and/or pledge) will not be able to use the right referred to in art. 126,
second part, and 209, regarding the necessary goods for exploitation, in the following cases:
1) When the credits are not due on the date of the declaration and the trustee fulfills the
subsequent obligations in due time;
2) When the credits are overdue at the date of the declaration, as long as they do not have a resolution.
firm that certifies its quality as a mortgage or pledge creditor;
3) When there is consent from the mortgage or pledge creditor for the suspension of the execution.
It is also established that agreements contrary to the provisions mentioned in 1) and 2) are null and void.
that by reasoned decision and at the request of the workers' cooperative, the bankruptcy judge may suspend
foreclosures and/or liens for a period of up to two (2) years.
That is to say, it establishes the impossibility for the creditor to request the formation of the special bankruptcy.
on the other hand, citing Fassi and Gebhardt(16), while the exploitation continues, the deadlines and others remain in effect.
contractual stipulations; for this, it is necessary that the bankruptcy regularly complies with them; the delay
produce the early maturity, and therefore, the enforceability of the secured credit.

5.5. Deadline for continuation

Returning to Article 191 of the bankruptcy law, we will refer to the continuation period that, as has been
said, must be established in a taxative manner by the magistrate, that is to say, that the continuation of the
exploitation must have a limited timeframe.
As mentioned by the cited authors(17)...aims to prevent the generation of
a situation of permanence in the bankruptcy procedure... to which they add that it must be
true
In this sense, there are two aspects to consider:
1) The possibility of maintenance and its convenience, facts that should be analyzed, as has been
mentioned in previous points.
That the delay in time has a justification, specifically in the execution of the company in
march.
Regarding the extension of deadlines, contrary to what was indicated by the previous regulations, it is not
establishes the indefinite possibility of extensions of the originally granted deadline for continuation.
Therefore, we can take as a general guideline that as long as the exploitation is economically viable,
it may last until the realization of the seized goods, or until the delivery of the goods to the debtor, in
settlement case where the bankrupt would regain the administration of his assets. In the case of bankruptcy
indirectly, the goods must be available for immediate sale.

5.6. The co-administrator in the bankruptcy with continuation of the operation

 First of all, as is well known, the official par excellence of the liquidation process of the
bankruptcy is the trustee.
Notwithstanding this,article 191from the Bankruptcy and Bankruptcy Law establishes that in the judicial resolution
that the decree of continuation includes the possibility of appointing one or more co-administrators
with specific powers—the one who will act as a kind of collaborator of the syndic, that is, in
close connection with this.
Such designation may be made ex officio, that is, at the initiative of the court itself as it deems appropriate.
the trustee may suggest the appointment and even propose the powers
specific to assign.
At this point, it is necessary to make a conceptual distinction with other figures of co-administrator already addressed in the
present work, since this is a new figure with its own characteristics, resulting from the Law of
Contests and bankruptcies specifically addressing the continuation of operations.
In that line of thought, we have to:
1) It is not strictly a precautionary measure, in the style of the co-administrator of art. 115 of the Law of
Commercial Societies, which, without displacing the natural authorities, collaborates with them. It is,
as has been said in the specific subsection, a sub-species of joint administration and where,
In addition, their functions aim to carry out all acts permitted to managers and bodies
administration and oversight in compliance with legal norms.
It is also not a punitive measure as provided for in Article 17 of the Law.
Bankruptcies and Insolvencies, where actions committed in violation of the provisions of the articles arise.
16 and 25 of the same law, the judge may order a replacement or, as applicable, a co-administrator, the
that, in that case, in this last assumption will also exercise a joint administration with the
contested.
It is also not the same as the figure of theart.
43from the Law on Bankruptcy and Insolvency regarding this regulation
foresees the administration of all or part of the assets in the hands of a third party and in the interest of the
creditors.
In this regard, we reiterate that the institute aims to strengthen the actions of the bankruptcy trustee, regarding
to assist him in a specific topic, which is the management of an operating company.
In this regard, we understand that based on our experience in judicial proceedings, there are three or four grounds.
basics for which the judge is inclined to appoint a co-administrator.
Firstly, because generally for the period that the exploitation has to continue, the trustee
is focused on its specific task; let us not forget that as soon as the bankruptcy is declared, the stage begins
informative and liquidating, so the trustee is occupied in producing the credit reports
and in general, and in the liquidation of the assets.
On the other hand, we understand that an additional argument is added, which is the different perspective that can
to have the co-administrator with respect to the continuation, in relation to what the trustee himself may have.
In other words, we believe that the trustee must be imbued with an interest in the immediate realization of the assets.
without prejudice to the other specific tasks that were just mentioned, while the co-administrator
would be rather focused on the continuation of the exploitation, on the business management of the continuation,
having as a central objective to be able to move forward with the exploitation.
Finally, and the law itself somehow mentions it in article 259, there is the issue of the
specialization, since it is possible for a trustee to have extensive training in the insolvency aspect,
and not necessarily in the specific theme of the company's activity.
In relation to the requirements that the co-administrator to be appointed must meet, we have, first of all
place, the regulations stated by theart. 259from the Law of Bankruptcy and Insolvency that states the following:
...the co-administrators can act in the cases indicated by articles 192 to 199. Their appointment must
to fall back on specialized professionals in the respective field or university graduates in business administration...
For its part, through Article 181 of the Commercial Justice Regulations of the Federal Capital, it
It established the way in which the lists of coadministrators would be formed for each court, namely:
...every four years, when the list of trustees for acting in contests is prepared, the procedure will be
to form a list of university graduates in business administration for the purposes provided in art. 283 of
law 19.551 (todayart. 259from thelaw 24.522)with a number of fifteen members for each court or a lesser amount
which results from dividing the total number of registered by the courts of the jurisdiction, which in the opinion of the court prove to meet requirements
sufficient based on their background...
In this case, the regulations have left to the discretion of the judges the manner of selecting the officials.
co-administrators to be appointed in each of the competitions that require their services.
Likewise, the resolution of the National Commercial Chamber of March 26, 1991(18), that
Establish a lottery system for auctioneers and experts, nothing adds regarding the system of
Appointment of co-administrators for bankrupt companies.
In light of all this, experience tells us that the judge evaluates each case according to
their powers, the best way to appoint these officials, where one cannot overlook the
consideration that we believe should be made of the professional background of the graduates in
administration, which were included in the list of its court.

5.7. Delimitation of the functions of the trustee and the co-administrator in the continuation of the operation.
In light of all that has been presented so far, it is clear that under certain assumptions it is appropriate
the appointment by the magistrate of a co-administrator, to act jointly with the
syndic.
What is not so clear are the specific activities or tasks for which it is named. The letter of the
The regulation under analysis is very broad and, on the other hand, states that it is the judge who will grant powers.
specific.
In this regard, Foiguel López(19) he says that:
It will be necessary to resort (...) to a more generic qualification, through induction and elimination that allows arriving at
that which is allowed to be carried out autonomously...
For his part, Rubín(20)clarify a little more the topic under analysis, since it establishes a kind of
classification of tasks, namely:
There are acts that are exclusively entrusted to the syndic, such as the periodic report or the
accountingd (art. 191of the Bankruptcy and Insolvency Law.
There are other acts that can be carried out by the trustee or the coadministrator interchangeably.(art.
192of the Law on Bankruptcy and Insolvency).
3) Thirdly, there would be a "zone of confluence," where based on the analysis of what happens in
the judicial interventions of common law, the cited author concludes that:
...must be reserved for the co-administrator regarding any aspects related to business management of the
bankruptcy administration without implying recognition of autonomy or the right to challenge the authority of the commissioner,
who will continue to be the main responsible...
Regarding the functions assigned to the trustee, we have that once the bankruptcy is declared, this
The employee must immediately focus on the tasks that are inherent to them, such as the preparation of
individual report and the general report (provided for thearts. 35y39of the Bankruptcy and Insolvency Law
likewise, to take charge of the seizure of assets and accounting books as well as the monitoring
of all subsequent procedural steps, also intervening in both labor and civil trials
of heritage content in which it is part.
In addition, it should continue with the research task regarding the eventual existence of adults.
goods that the acquaintances, at the head of the ravine.
For its part, it must focus on the realization of the assets of the bankrupt, first of all, those that do not
be affected by the continuation of the exploitation and subsequently and concomitantly with the completion
of the term of exploitation, regarding those affected by it.
Likewise, and as can be seen from the reading of theart. 191from theLaw 24.522is imposed the obligation to
present a report with the frequency that the magistrate establishes regarding the progress of the
administration.
 First of all, and as has already been mentioned throughout this chapter, the court when deciding on the continuation
of the exploitation and appoint this new official, the co-administrator, the powers must be specified
and functions that you will have to assume.

But beyond that, we understand that the primary function for which it is designated is to absorb.
the task related to the administrative and/or business management of the exploitation.
Given what tal attribution of functions is generic y broad head
—at least and beyond, of course, the specific functions that the judge will assign—perform
a mention of the acts for which he or she is legally authorized.
Always starting from the basic principle of management, it can be mentioned that one is empowered, in the first place,
to hire, every time he is allowed to receive and pay. As far as the strictly...
Administrative matters involve decision-making in the area that is specific to it, carrying out planning or
course of action regarding the tasks to be developed with the necessary feasibility analyses, and ultimately,
manage all the exploitation, starting from decision-making, with the limitation in this case that is imposed on it
would impose on a debtor in preventive bankruptcy what is established by Article 16 of the Law
Bankruptcies and Insolvencies, that is, acts subject to approval by the judge.
Likewise, special emphasis should be placed on what refers to the payment of taxes and social charges as well.
as well as keeping up to date the payment of salaries to the staff who have been affected by the operation.
In conclusion, it should be noted that ultimately, it will be the judge in charge of the contest who, at the appropriate time,
to resolve the continuation of the exploitation of the failed company and the appointment of a co-administrator,
He must arrange the tasks under his responsibility and the scope of responsibilities of each of the officials.
branches. All of this considering the existing regulatory framework in the bankruptcy law for this
institute (arts. 189 and following). It is such that it may even assign the co-administrator functions that
go beyond the management of ongoing activity, as we will explain in the point
5.10.

5.8. Particular aspects of the continuation of exploitation

The tasks to be carried out during the continuation of the operation, in principle, are similar to those of
any company in bonis, which is why we will not stop to analyze the administrative aspects
common.
However, there are particular or specific issues that we do consider worth discussing.
it is painful to explain ourselves, as they only appear in cases of exploitation of entities that are bankrupt.

5.8.1. Hiring of dependent personnel

As established by theart. 196According to the Bankruptcy and Insolvency Law, bankruptcy itself does not produce the
termination of the employment contract, but suspends it by operation of law for a period of 60 consecutive days.
In this interim period, a decision must be made regarding the continuation of the exploitation, after which the contract
work will resume immediately
As Rubín expresses it(21), the suspension begins on the same day that bankruptcy is declared and not
no explicit notification to the worker is necessary.
It is also established that if the matter concerning the continuation is not resolved within the specified time frame,
The contract is terminated and the credits arising from the employment relationship can be verified in accordance with thearts.
241, inc. 2° and 246, inc. 1°, of the Bankruptcy and Insolvency Law.
Finally, the cited author, agreeing with the majority of doctrine, states that the intermediate solution
considered by the law, this is the suspension of the contract and the non-breaking of the bond, aimed at preserving the
staff team with a view to a possible continuation, which is extremely important to the
ends of the process.
Regarding the selection of personnel, Article 191 elaborates on the matter. It establishes that the magistrate
must establish the quantity and professional qualifications of the staff that will continue to be assigned to the
exploitation, while the trustee must decide (art. 197) within a period of 10 calendar days from
from the respective resolution, regarding which dependents must be maintained and which must cease their
activity, in the event that there is a reorganization of tasks.
It is important to highlight that the article under analysis mentions that the rules must be respected.
common (understood here as labor law rules, such as stability and other benefits of
the employees) and that the laid-off workers have the right to verify their credit in the bankruptcy and that they will enjoy
of the privileges established by thearts. 241 y246from the Bankruptcy and Insolvency Law. Finally,
It establishes that, for all legal purposes, the termination of the employment relationship occurs due to bankruptcy.
It is worth noting, as Rubín expresses(22)that the standard under study establishes that the decision must
to be taken over consecutive days, deviating from the generic norm ofart. 273, para. 2, of the Bankruptcy Law
And bankruptcies, and this is due to the need to give as much speed as possible to the process, in order
to the type of contract we are referring to (labor), and the need to harmonize the terms
provided for by articles 190 and 191 of the procedural law.
It is worth mentioning that, although the trustee has the powers granted by law regarding the possibility of
Select the staff; the oversight of the regularity and legality of the resolutions is the responsibility of the judge.
This tends to preserve the worker's right regarding an unjust dismissal, giving them the opportunity to
to appeal to the court in order to have such a decision reviewed.

Next, Article 198 talks about the responsibility for future benefits: under this
the term encompasses several concepts. The first of these refers to the fact that the remuneration that
they accrue to the personnel, due to the continuation of the employment contract, they must be paid in
termination due to the competition and they will enjoy the privilege granted by art. 240, that is, conservation expenses and
justice.
In addition, add that in the event of later closure or termination of the employee due to dismissal, for
on the part of the syndic, they continue to enjoy that status and privilege, as well as the increase in the compensations
for notice and dismissal during the continuation of the company, without implying loss of the right to
verification of what was accrued prior to the bankruptcy.
This post-bankruptcy stability, as Rubín calls it. (23)it has a limit on the needs of the
exploitation that the syndic will face. This is so because if it were anticipated differently, it could not be done
in the face of partial continuations or business resizing.
Continuing with the analyzed wording, the insolvency law in article 198 addresses the topic related to the
labor obligations that the buyer of the company would assume. In this case, there is a difference.
substantial with the previous regulations, in that it establishes that:
In the cases of (...) acquisition by a third party of it (company) or of the production unit in which the
the employee fulfills their obligation, the employment contract is definitively resolved..." and adds that:
...the collective labor agreements related to the staff working in the establishment or company of
failed, they extinguish by full right regarding the acquirer, leaving the parties enabled to renegotiate them...
In this sense, article 199 states that the acquirer of the company is not considered the successor of the bankrupt.
and the contest regarding the employment contracts in force at the time of the transfer, establishing
specifically that the amounts owed to the dependents (due to the bankruptcy or the competition) will be
Verification or payment object in the contest, releasing the purchaser from them.

5.8.2. Contracts in execution

Regarding this problem, the bankruptcy law provides for its treatment in the event of bankruptcy, in the
arts. 143 and subsequent.
Specifically for the case of continuing the exploitation of the failed entity, the application of the
established by art. 144, subsections 2 and 3, which states:
...2. When presenting the report of art. 190, the commissioner lists the contracts with pending reciprocal obligations and
your opinion on its continuation or resolution.
3. The judge decides, the resolution regarding the continuation of the exploitation on the resolution or continuation of the
contracts...
In principle, all other sources of obligations that are not contracts are excluded from this regulation.
 The law establishes a special procedural regime regarding the way to channel them, as it grants
a period of 10 consecutive days, after which, without resolution on the matter, the contract is terminated. This
the deadline would find its justification in that:
A more or less quick response must be given to the third contractor, as we are in the field
business, where speed in decision-making is essential.
The accumulation of procedural deadlines regarding the bankruptcy decree, combined with those of the opinion
about the continuation, plus the deadline for the judge's decision and finally the 10 days of art. 191 under
analysis, are clearly burdensome for the contracting party in good standing, who is affected by the
debtor's bankruptcy.
Finally, regarding the properties, the following considerations should be made:
If the lessor is bankrupt, the lease continues to produce all its effects.
If the failed party was a tenant, it will be governed by article 147 or 197.
If the lease contract for housing is unrelated to the competition, it cannot be maintained.
When the location involves business and housing, the judge will be the final decision-maker, according to article 147, section.
4°, of the law of bankruptcy and insolvency.
Considering what is regulated by article 193, and as it expresses, in the event that within the
30 days the syndic expresses the convenience of bulk disposal, the rental contracts are maintained
in the pre-existing conditions.

5.8.3. Attention to taxes and social charges

One point that cannot be overlooked is related to the fulfillment of obligations.
in tax and social security matters, related to the continuation of the operation.
Especially with the validity of the tax criminal law, as it is the responsibility of the directors of an entity in
bankruptcy with continuation of the operation the total responsibility as a natural administrator of an entity in
good. That is to say, here the judicial administrators (understood as trustee and co-administrator) are
personally responsible for any omissions they may incur in this matter.
There is, therefore, a general principle that dictates that the continuation of exploitation must be addressed from
from the tax and social security perspective, as a company in good standing.

Regarding this matter, we consider it important to mention the following aspects:

1) The failed entity with continuity must have tax identification maintaining, for VAT purposes,
the same category to which the debtor belonged.
2) The balances in favor, advance payments made, and tax credits must be established, as well as the...
tax liabilities that the entity has at the date of the bankruptcy decree, for the purpose of its proper
utilization.
3) Regarding the closure of the financial year, it will be set, as interpreted, from the
Decree of continuation, with the corresponding presentations having to be made since then
to the value added tax (monthly) and those related to income tax. The change
The closing date must be reported to the oversight body.
For the operations of the continuation and the equity affected by it, income must be fulfilled.
of advances, presentation of information on withholdings, etc.
5) Finally, it is worth making a comment regarding the value-added tax and it is related to
the tax credit invoiced by the creditors who come to verify credits in the proceeding, with
invoices issued after the bankruptcy decree; we understand that such tax credit may be
calculated as such and deducted from the obligations arising from the tax liability invoiced by the bankruptcy,
with a date subsequent to the bankruptcy decree.

5.8.4. Reports of the continuation

 In the continuation of the exploitation of a failed estate, judicial officials have the obligation
primary informative that is imposed on them, in principle, by article 191, paragraph 7.

In this regard, we understand that for the specific case of the appointed co-administrator, and without losing sight of
the cited regulation that we will refer to next, a first report must be made (which many
sometimes requested by the court itself) in which it must state the situation in which it found the entity.
Subsequently, and now regarding the cited article, it is required that information is provided periodically.
established by the court.
Regarding the obligation for periodic information, we understand that it must refer to the
following aspects:
Ongoing business activity.
Commercial management.
3) Management regarding the realization and/or liquidation of assets.

4) Accounting.
5) Other topics that arise of interest to the process.

5.9. The co-administrator and other related functions

As we have seen throughout this chapter, the primary task of the co-manager tends to
manage
with specific functions derived from the jurisdictional body.
Sin embargo they exist situations del own process liquidator
—that private lessons— and which we understand can be assumed by this official, despite the fact that not
resulting specifically assigned by the bankruptcy law. In this line of thought, and as an example,
we can cite:
•Manage the confiscated assets: even if they were not affected by the continuation of the operation and
For efficiency reasons, it is possible that the administrator themselves can also take care of some.
strictly and directly related issues to the continuation. For example, with other goods not
affected, if there are different establishments where security personnel are present in
dependent relationship, it would not make sense for the settlement of salaries and social charges of
staff affected by the exploitation is to be done separately from the settlements for the staff not
affected by the same, that is to say, in this case it would be advisable to settle the salaries in full in
unified form.
Implementation of the ongoing company: the participation of the co-administrator in the process is advisable.
of the realization of goods, since during it a number of issues arise, such
such as: transfer of contractual obligations with personnel, of the goods in exchange,
coordination of visits with potential buyers, addressing tax issues related to the sale
etc., which in turn are related to the activity of continuing the exploitation.
Informative activity: as already mentioned, there is a whole periodic informative task that the law imposes.
at the head of the judicial officials, primarily in the syndic but by extension also in
the co-administrator.
Some other minor activities that can be mentioned—without intending to exhaust them—on the basis
from our experience, they are the following:
operations related to the rehabilitation of the plant, basically concerning services, if
they would have been interrupted;

fund movements and general accounting;

• signing of lease contracts, exploitation, etc.;
definition of the level of operability;
hiring and validity of insurance;
 the manner in which they determined the value of the goods of exchange;

Hiring of staff and labor documentation;

compliance with tax obligations and social charges;
credit collection management;
restitution of property.

5.10. Harmonization of standards related to the functions performed and compensation

As we have been able to observe through the various topics addressed, the co-administrator in bankruptcy
in continuation of the exploitation has some specific tasks assigned to it by law and others
they are defined by the judge at the time of their appointment, by application of the principle of economy
procedural, what ultimately determines that its scope of action covers a wide spectrum of
activities in their performance.
Taking this into consideration, we believe it is necessary to refer to the way in which these functions
and tasks will be paid.
Article 259 of the insolvency law states that "...the co-administrators can act in the cases indicated
in arts. 192 to 199..." The expression "can" would imply that those are not the only functions
that they can perform.
Articles 269 and 270 outline the manner and timing in which fees must be regulated.
of the syndic and the co-administrator, based on the continuation of the company.
It is established, in this case, that the regulatory base must be linked—in principle—to the net result.
obtained from exploitation, or through a certain sum, not depending on that result, but
without participating in what is produced by the goods.

It is obvious that both provisions adequately consult the general principles of law, which
they recognize the onerousness of any activity provided usefully and the constitutional safeguard of the right
of the property of one who has provided a service to be compensated fairly and equitably.

10. JUDICIAL LIQUIDATOR (CORPORATE LAW)

Before developing this point, we must clarify the following concepts:
1) That the 'judicial liquidation' is not an autonomous institute in itself, but always arises as
consequence of a prior process of judicial intervention and/or for the same causes that determine
the dissolution of a company according to theArticle 94of the Commercial Companies Law; considering that
for some reason they have ended up in the courts, applying by analogy what is legislated for
the liquidation case that is regulated in articles 101 to 112 of the cited law.
2) That the measure in the judicial field can be requested by the same partners or any oversight entity,
as is the case with the General Inspection of Justice.
In this regard, and in support of what has been said, it is worth mentioning the following concepts previously mentioned by
the jurisprudence
I. In our law, there is no judicial liquidation of corporations, except in the case of
bankruptcy. The liquidation process for the dissolution of the company is always private, with the exception of
the assumptions of administrative liquidation (banks, financial entities, insurance). The intervention
judicial only proceeds in the case of a dispute between the partners or a crisis in the governing bodies and
management of the company.
The General Inspection of Justice can exercise its oversight functions when it deems appropriate.
necessary, according to a reasoned resolution, in safeguarding the public interest. Likewise, it may request
judicial dissolution and liquidation of the audited companies when they are found
unable to fulfill the purpose for which they were formed.
 Having made these prior clarifications, we will enter into the analysis of the liquidation, the person of the liquidator.
and its functions, based on the provisions established by the Commercial Companies Act in articles 101 to
112, namely:
a) Personality: first of all, thearticle 101of the Commercial Companies Law states that the company
in liquidation, it retains its personality, governed by the corporate type it corresponds to,
as soon as it is compatible.
b) Appointment of the liquidator: the corporate regulations establish that the social liquidation is the responsibility of the
administrative body, except in special cases or contrary stipulation (art. 102). Here
we understand that the legal case is inserted, insofar as the administration body has been
displaced.
c) Registration: the rule of the same article establishes that the appointment must be registered in the Registry
Commerce Audience.

10.1. Obligations of the liquidator

10.1.1. Inventory and Balance

According to Article 103, the liquidators are obliged to prepare, within 30 days
upon taking office, an inventory and balance of the social assets that will be made available to the partners;
this deadline can be extended by majority up to 120 days.
For its part, it should be clarified that failure to comply with this obligation opens the possibility of the
removal, causing the liquidator to lose the right to remuneration, as well as making it susceptible to
emerging liability for damages that may arise.

10.1.2. Periodic information

According to the provisions of Article 104 of the regulations under analysis, the liquidator(s) have the
obligation to report, at least quarterly, on the status of the settlement. In the event that the
the liquidation will be extended over time, annual balances must be prepared.
In the case of judicial liquidation, it will be the judge himself who will establish the frequency with which
The designated official must inform the court, as well as that all necessary submissions
must be made directly in the judicial file.

10.1.3. Powers, obligations, and responsibilities

Article 105 of the Companies Act establishes that the liquidators exercise the representation of the
society and are authorized to carry out all acts necessary for the realization of the asset and
cancellation of the liability, having to act with the addition "in liquidation" when using the name of the
society.
The regulation establishes that they are subject to the instructions of the partners, but in the case of the
judicial liquidator, he must adhere - as it has been said - strictly to the powers established by
the court in the appointment order.
Finally, it should be noted that the obligations and responsibilities of the liquidators are governed by the
provisions established for administrators (art. 108 of the Companies Act).
10.1.4. Final balance and distribution
Article 109 establishes that once the social liabilities are extinguished, the liquidator must prepare a balance.
final and distribution project, reimbursing the capital parts, unless otherwise provided by the
contract, the excess will be distributed in proportion to each partner's share in the profits.
Likewise, Article 110 establishes that once the final balance and the distribution project are prepared
subscribed by the liquidators, may be challenged within a period of fifteen days.
For its part, the final balance and the approved distribution project will be added to the company's file.
in the Public Registry of Commerce, proceeding next to its execution. The beneficiaries have
90 days, from the presentation of such documents, to claim their amounts, after which
will be deposited in an official bank available for the holders. If three years pass without the
if they were claimed, they will be attributed to the school authority of the respective jurisdiction.
Once the liquidation is completed, and as regulated by art. 112, the registration of the contract will be canceled.
social in the Public Registry of Commerce. Regarding the social papers and books, in the event of not
If there is an agreement among the partners, the judge will decide who will keep them. We understand that in the case of the
judicial liquidation, these elements should be kept in the custody of the judicial official, without prejudice
that the final resolution issued by the magistrate may prescribe a different destination.
CHAPTER XIII

THE PUBLIC ACCOUNTANT IN HIS ROLE AS TECHNICAL CONSULTANT IN THE FORENSIC FIELD

Quintino Pierino Dell'Elce

1. INTRODUCTION
The purpose of this comment is to examine and consider the most significant aspects concerning
to the functions, characteristics, nature, powers, and duties that the public accountant possesses,
in his capacity as a graduate in economic sciences, in his professional role as a technical consultant,
according to the current procedural regulations, fundamentally related to the forensic field
metropolitan(1).

2. BACKGROUND
First of all, in order to better understand the figure of the technical consultant, arising from the reform.
Legally established in 1981, it is appropriate to highlight and remember what the procedural situation was.
previous evidence in the forensic field of the Federal Capital. Indeed, at the beginning of 1981, they were located in
validity in the metropolitan area of the following procedural regulatory regimes:
Regulatory Provision Imperial Charter
Civil, Commercial
Civil and Commercial Procedural Code of the Nation (law 17,454). and Federal.
Work.
Law 18.345 on the Organization and Procedure of the National Labor Justice.
Penal.
Criminal Procedure Code (Law 2372 and amendments).
Consequently to that circumstance, until the sanction and the validity of law 22.434, enacted on 3/16/81
and amendment of the Civil and Commercial Procedural Code of the Nation(law 17.454), within the procedural scope
the following professionals could act in expert matters:
 Designated experts of office.
—Experts at the request of a party.
Official experts.
It is also necessary and accurate to note that within the previous statement, it is excluded
specifically the so-called 'public administration experts'(art. 93of thelaw 18.345) and also to the
called 'expert arbitrators', due to their very limited practical application and their limited validity in the courts
capital forensic experts.
Following the legal sanction of the amendment referred to in the civil, commercial, and federal jurisdictions, a
new procedural figure known as "technical consultant".

3. PROCEDURAL REFORM OF 1981

First of all, it is important to emphasize that the figure of the technical consultant in the national legislation of
procedural character is—somewhat—a recent development. Consequently, to that circumstance, even today
it is not widely applicable and known, both for professionals linked to the
economic science careers, as well as for those graduated in other disciplines.

3.1. Considerations
Indeed, and as will be recalled, through the enactment of law 22.434(2)an important was given
reform of the currently in force procedural legislation.
Recently, the National Executive Power enacted the law on the reform of the Civil Procedure Code.
y Commercial of the Nation (CPCCN)
—represented at that moment by theLaw 17.454 established in 1967—that was prepared by a
special commission, established for those purposes in the then existing Ministry of Justice of the Nation.

3.2. Characteristics. Purposes and Scope

Given the mentioned circumstances, it is advisable to keep in mind that, based on what is expressly
consigned in the very text of the message that accompanied the regulatory project submitted for consideration
from the National Executive Power—with exceptional legislative powers—the regulatory reform
the sanctioned procedure had the following purposes:
a) it sought the apparent objective of achieving greater speed in procedural processes, without affecting the
legal security, the effective enshrinement of the principle of immediacy, the incorporation of new
criteria established by jurisprudence and by doctrine, the simplification of certain procedures
and the updating of various regulatory provisions; and
b) due to its scope, the procedural modification then introduced was far-reaching, since,
approximately, half of the articles of the procedural code in force until then were reformed.
new ones were included and many others were repealed. From an eminently formal point of view, the
the result was that the national justice had a reformed and updated procedural code.
On the other hand, and attentive to its own nature and its competence, the procedural modification established
At the time, I only understood the commercial, civil, and special jurisdictions in civil and commercial matters (ex.
peace courts), belonging to the national justice—that is, the courts of the Federal Capital—and
those of federal character with jurisdiction in the different provinces of our country.
Nevertheless, and although the mentioned procedural reform did not specifically cover the scope of
labor law(3) It must be recognized, with regard to the characteristics of its scope and nature
supplementary that had its provisions, that several of these latter procedural type, timely
sanctioned, also had effects and consequences—in what was compatible and applicable—
with that important regulatory reformulation.
 Likewise, and regarding the effective implementation of the new procedural provisions sanctioned, the
Article 2 of the aforementioned legal amendment established the following regulation:

a) as a general principle, the procedural provision introduced in that instance was in force from the one hundred
twenty (120) days from its publication (that is, since July 24, 1981) and it would apply to the
judicial controversies that will formally begin after that date; and
b) moreover, it is important to highlight: that point VI of the commented article, belonging to the amending law
sanctioned at that time, explicitly stated that the rules and provisions contained
in articles 458 to 476, and 478, as far as they altered the regime for the appointment of judicial experts and
they admitted the possibility of the parties appointing the new figure of technical consultants and they were
applicable to judicial proceedings that had not been initiated by the date of entry into force of the aforementioned law
still open for testing or they would not have missed the opportunity to offer it, depending on the type of process
which will be dealt with.

3.3. Main innovations introduced in expert matters

To the children of this comment and as stated in a previous article by the author(4), like
result of carrying out the comparison and critical consideration between the relevant dispositive norms
preexisting, belonging to the CPCCN sanctioned in 1967 by means of thelaw 17.454, with the text
resulting that effectively reformed that legal ordering, but related only to the provisions
grouped in section 6 under the title "Expert Witnesses", part of this last chapter V, entitled
"Test", the following observations arise.
Indeed, from the comparative examination between the new procedural rules sanctioned in the instance
mentioned and those contained in the reformed legal framework, referred to the dispositive fragment
marked - which includes twenty-two articles (from 457 to 478, inclusive) - the main points arise
considerations and comments that are outlined below:
a) The only substantial changes introduced in the new fragment of the procedural ordering
sanctioned can essentially be synthesized under the following aspects:
The designation of a single expert by default in replacement of the traditional proposed experts
in part, in force under the previous procedural regime;
2. The optional appearance of a new and curious figure within the reformed normative framework,
called "technical consultant", with the power to be proposed by each litigating party; and
3. The significant reduction in the formally and presumably established timeframe for the completion and the
presentation of the respective expert report.
b) The rest of the modifications sanctioned in the mentioned normative fragment are of mere
formal incidence, since it only tends to compatibilize and harmonize semantically the
appropriate drafting of the text of the previous current procedural provisions with the changes
established mentioned.
Attentive to the purpose and emphasis of this chapter, everything related to will be analyzed next.
a novel institution called 'technical consultant'.

4. THE FIGURE OF THE TECHNICAL CONSULTANT

Regarding the discussed reform specifically related to the figure of the technical consultant, there
The most significant aspects of the regulatory novelty will be pointed out below.
introduced in procedural matters.

4.1. Terminological and Regulatory Aspects

 First of all, from an eminently semantic point of view, the dictionary of the Royal Academy
Spanish(5) define the terms in question in the following way:
"Consultant": the one who gives their opinion when consulted on a matter (first definition).
‘Technician’: the one who possesses special knowledge of a science or art (third definition).
On the other hand, the only specific regulatory provisions contained in the CPCCN that denote a
expresses reference to the new procedural figure established, appears in eleven articles, namely: 458, 459,
461, 462, 471, 472, 473, 474, 475, 477 y 478.

4.2. Doctrinal Background

From the first reading of Article 458 of the procedural order sanctioned at the time, it arises the
curious news about the possible appointment of technical consultants, given that in its last paragraph it
It explicitly states that 'each party has the authority to appoint one (1) technical consultant.'
It is surprising and also draws a lot of attention the innovation introduced at that time in the text.
commented regulations, given that the doctrinal and regulatory background is practically unknown
similar in terms of the novel legal figure mentioned within the existing procedural framework.

4.2.1. Statement of Reasons

Indeed, from the reading of the extensive statement of reasons justifying the reforms
procedural matters introduced, arise, contained in the text of the elevation note that precedes the body
legislative sanctioned, under point 10 of the title 'Technical Reform', the only explanatory mention
on this matter, when it is expressed under the title of 'other innovations' to the explicit 'possibility,
granted to the parties, to directly appoint technical consultants to express their viewpoints
regarding the expert opinion that will henceforth be the responsibility, in principle, of a single appointed expert
of its own accord.

4.2.2. Other normative texts regarding procedural matters

For his part, as Dr. Duro points out(6) the technical consultant is a figure that appears for the first time
once in the Italian Code of Criminal Procedure of 1930, although Article 22 of the draft belonged to
Dr. Carnelutti—of 1925—already contemplated this possible innovation.
Likewise, in our country, the civil procedural legislation of the province of Santa Fe, through the law
provincial 2924 of 1940, regulated this institute, naming it 'expert delegate'.
Indeed, within comparative law, doctrinal precedents are also recognized as theart.
201of the Italian Civil Code (in criminal matters, Article 325), Article 132 of the Brazilian Civil Procedure Code and
Article 36 of the Civil Code of the Vatican.
In contrast, in our country, Article 272 of the Penal Code of the province of Córdoba is taken into account.
that mentions the controlling experts. In this last case, the national doctrine is divided
regarding considering it a direct precedent. Nevertheless, a court ruling from the Chamber
Second in Civil and Commercial of Córdoba (No. 30,230 of 05/23/80) allowed it and accepted it as such.(7).

4.2.3. Supporters and detractors

From the standpoint of the doctrine related to law and procedural practice, the reform of 1981
in this regard, he divided the scholars between those who saw the technical consultant as an effective
help the process and those who took away any real practical utility.
 As Dr. Duro states(8)Among the first are Drs. Enrique Falcón, Carlos
Fenochietto and Enrique Abatti, who, along with other prestigious authors, recognized the positive aspects of the
reform, due to the fact that—among other aspects—allowed for better control of the expertise as it
produce greater clarity in the expert points (when written by technicians in each field), thus
as well as a great transparency in the response to the transfer of the unique court-appointed expert report, linked to
a greater contribution of data to the judge and a broader transactional possibility between the parties as they become aware
better the development of the ordered expert report.
In direct opposition to what has been stated, Miras and Alonso believe that, according to him, the creation of
the technical consultant proves useless, since the report lacks the validity of the expertise. Therefore, it can
to continue with the custom that the sponsoring attorney, through the challenge of the expertise, formulates
the same observations made by the technical consultant9.

4.3. Nature, functions, and procedural action

On this particular matter, it is worth making the most relevant considerations and comments that are
are highlighted below.

4.3.1. Replacement of the proposed experts from the parties

According to the sanctioned procedural reform, the technical consultant is intended to replace the experts.
proposed by those who previously had the obligation to carry out their procedural diligence together with the
court-appointed expert(art. 471from the CPCCN sanctioned by thelaw 17.454)According to Dr. Duro(10)the
the procedural practice distorted the role of the official expert, removing it from its role as an auxiliary to the judge and
placing it in the context of the specific issues raised by the parties through their own
experts.

4.3.2. Direct advisor for each litigating party

Nonetheless, despite the above indications and although the meaning may not seem sufficiently clear.
and the purpose of the work that technical consultants must fulfill with the possibility of being proposed by
each litigating party arises from reading all the provisions corresponding to section 6 of the text
processed reformed, the firm presumption that the mentioned professionals tend to act, rather,
as direct advisors in the specific subject matter of their competence for each of the litigating parties and
in a complementary and indirect manner by the presiding magistrate.

4.3.3. Indirect assistant of the judge

Indeed, according to the mentioned procedural legislation, the technical consultant constitutes an assistant.
indirect of justice, contrary to how it is the court-appointed expert.
As Dr. Gallo states(11)with great success, there can be no technical consultant if it does not exist
expert report, but there can be an expert opinion without the necessity of a technical consultant.
It is notable and evident to specify that the main purpose of this procedural figure consists of
fundamentally, in advising directly to the party litigating that proposes it and, in a way
indirectly, to the acting magistrate. Likewise, it is his responsibility to control and supervise the proper execution of the task.
specific expert report—in all its aspects—by the intervening court expert and present
timely to the aforementioned expert, his observations, requests for explanations and clarifications.
For his part, Dr. Binda(12)understand, when referring to this topic, that they cannot and should not be considered
background of this new procedural institute regarding the so-called 'counter-experts', provided for in the
Code of Civil and Commercial Procedures belonging to the province of Córdoba.
 Indeed, according to the cited author, Article 253 indicates that the counter-expert witnesses are those
proposed by the parties involved, whose sole mission will be to evaluate and technically critique the
report of the sole official expert appointed by the judge.
Dr. Binda states that the difference between the two procedural figures is based on the fact
that the expert counter-experts, despite the limitation that the process text itself seems to impose on them
referred to, they are simply experts. In contrast, the technical consultant, while replacing the functions
fulfilled by the previous expert witnesses proposed by the party, acts with a task and a legal nature
distinct and specific to that which was appropriately indicated for those.

4.3.4. Defender-consultant
On the other hand, as mentioned previously, the figure of the technical consultant is already
mentioned in the Italian procedural legislation. In this regard, it is right to bear in mind the authorized opinion
from Dr. Lino Enrique Palacio, who assimilates the technical consultant as "a true defender of the part
that designates him to assure in the areas of technique outside the specific legal knowledge(13) The
same author, citing Dr. Carnelutti, prominent and well-known Italian academic in procedural matters,
understand the technical consultant in 'the broad concept of the defender-consultant'.
Likewise, according to what Dr. Binda has stated, the difference between the expert and
the technical consultant, since the former acts as an assistant in the administration of justice, while the
secondly fulfills, fundamentally, with the litigating party that designates it, in the task of advising and controlling
technically, the development in the execution of the expert test and its conclusions.
Coincidentally with the immediate preceding criterion, Dr. Rabinovich de Landau(14)remember that
the National Court of Appeals in Commercial Matters of the Federal Capital, in a judicial ruling
referring to the cars 'Oeste Motors Car S.A. v. Blanco, Carlos A. and another', in its 'C' chamber, dated 10/2/84
appropriately published in the magazine La Ley, has clearly defined the nature of the technical consultant to
to say that it constitutes the substitute of the part that has appointed it to make the observations on its behalf
relevant, technically controlling the development of the expert proceedings. Even said consultant
you can submit your own report within the same deadline set for the acting expert.
In this regard, the cited author also states that, according to the referenced judicial ruling, the
the technical consultant presents a figure strictly analogous to that of the sponsoring lawyer and operates in the
process in a manner similar to the latter, which must be understood in the broad concept of the
"defender-consultant". This criterion fully aligns with that definition stated
previously by Dr. Palacio(15).
For his part, Dr. Gallo(16)it asks and questions whether, eventually, the technical consultant cannot
to become the expert of the expert appointed by the judge.
That is why, based on the analysis of the different cited opinions and positions, it can be defined
the nature of the technical consultant similarly to how the authors of the reform themselves did
his considerations and foundations, stating that 'in the same way as the parties in the legal aspect
they have legal sponsorship, it is not accepted why they could not have the support of an expert in
technical issues.

4.3.5. Technical sponsorship vs. Legal sponsorship

It is evident that in our national procedural legislation, the figure of technical sponsorship arises through
the technical consultants representing a new professional role, analogous to that of a lawyer, assisting in the
parts in matters unrelated to legal knowledge and expertise. In this line of thought, Dr.
Hard(17)emphasizes that the actions of the technical consultant constitute a kind of technical sponsorship for
who proposed his designation.
Furthermore, the mentioned professional believes that by virtue of the powers and obligations established in
the commented procedural legislation, the technical consultant represents the party that proposed him,
regarding matters unrelated to the legal discipline, so their actions would constitute a sort of sponsorship
technically perfectly differentiated from legal sponsorship, which is exercised by lawyers and is proper and
inherent to them(18) .

4.3.6. Optional functions

Finally, and as Dr. Rabinovich de Landau aptly states(19)the functions of
technical consultants in our procedural legislation are fundamentally of an optional nature
to be exercised by him. Indeed, this originates expressly from the verb 'will be able', used in the aforementioned
normative text. In accordance with this, it arises that the functions assigned to the technical consultant are of an order
eminently operational, as indicated below:
a) you will be able to witness the technical operations being carried out and make any observations you deem necessary
relevant(art. 471from the CPCCN);
b) may submit their respective report separately(arts. 472y474of the CPCCN); and
c) may make observations on the reports or explanations of the expert(art. 473of the CPCCN).

5. SOME SPECIFIC ASPECTS OF INTEREST

Next, some specific points of an opinionated and controversial nature regarding are discussed.
the mentioned procedural figure established.

5.1. Proposal for designation

Regarding the opportunity and the way to propose the appointment of the technical consultant, theart. 459del
CPCCN establishes the following aspects:
a) if the party involved decides to exercise the authority to propose the appointment of the technical consultant, it must
indicate your name, your profession, and your address in the same presentation where you offer your own
expert testimony questionnaire;
b) likewise, in the case of multiple litigating parties, and if they do not agree on the
proposal for the appointment of the corresponding technical consultant, the judge will appoint it by
raffle, based on the list of names timely suggested by the parties themselves
consorts.
In the same way as the current procedural legislation(art. 462of the CPCCN) states that, prior to the
determination of the proposed expert points, the litigating parties may present, by mutual agreement,
only the expert who will intervene in the judicial process, they may also propose the appointment of a new one
technical consultant if they would agree with the right person for that expert work.
It is curious to note that, for the designation of the mentioned technical consultants, it is not
essential that they are registered with the corresponding professional entity
territorial jurisdiction in question nor to any other.
Technical consultants may witness the conduct of the expert examination carried out by the expert.
acting and has the authority to make any observations they deem appropriate(art. 471of the CPCCN).

5.2. Notification and acceptance of the charge

In this regard, it is also timely to take into account the appropriate and accurate comments made by Dr.
Binda(20)formula on the particular, when it states that, despite the existence of criteria and opinions
divergent in terms of the notification method and the acceptance of the position by the technical consultant,
It is considered desirable and convenient for them to be notified of their appointment in an express manner, in the form
simultaneous with that which is carried out on the court-appointed expert, and consequently, this is required of him
the due and express acceptance of the position, in accordance with the established procedural formalities.
It is undeniable that the notification and acceptance of the charge must facilitate the work of the court-appointed expert and the
good organization of the judicial process, which results in a greater speed of the latter.
A similar criterion is supported by Dr. Rabinovich de Landau.(21)Indeed, the cited author makes
a punctual reference to the existence of divergent opinions on the subject related to the formal
acceptance of the position by the technical consultant.
Likewise, and despite not being expressly stated in the regulatory provisions of
current procedural order, it is considered that, as the technical consultant constitutes a specific procedural figure,
They must also formally accept the assigned position, just as the experts themselves must do.
(art. 469of the CPCCN).
Nonetheless, that circumstance, Dr. Duro(22)sharing what was stated by Dr. Carlos Eduardo
Fenochietto states that, taking into account the broad sense and the spirit of agility that the
The procedural reform aimed to give the law, considers the requirement of acceptance of the position unnecessary. Moreover,
argues that the technical consultant, not being a direct assistant to the judge and not being subject to causes of
recusal, and consequently, being able to be replaced by the party that proposed it at any time,
constitutes a kind of defender-consultant, with a participation in the judicial process similar and analogous to
the lawyer's. On the other hand, Professor Gallo(23)states that the explicit acceptance of the position by the
a technical consultant is absolutely necessary, given that compliance with this requirement in the field
Forensic implies the promise to act with fidelity. In this regard, the intervening technical consultant
assume the formal and due commitment for the eventual effects and consequences that may arise
of their professional performance during the respective judicial process.

5.3. Professional with qualifying title

Although in our procedural law it does not emerge clearly and explicitly whether it is
it is necessary for the technical consultant to be a professional with a qualifying degree in the same discipline as
the one of the proposed and designated expert should be so for reasons of reasonableness, coherence, and criterion, given
it would not be appropriate, consistent, nor harmonious for a professional in a certain discipline
be required to account, provide explanations, or respond with clarifications or observations in the
forensic field, before a layperson or a professional from a discipline different from the one mentioned above.
In this regard, Dr. Rabinovich de Landau(24)clearly indicates that thearticle 459of the CPCCN establishes
that, when the interested party proposes the appointment of a technical consultant, they must provide data such as
his name, his profession, and his address, which leaves no room for doubt that he must have the same title
enabling requirement demanded of the proposed and appointed expert. This opinion is fully agreed upon,
given that, during the period of validity of this new figure, there is no knowledge of the existence of
different situations from the recently indicated one.

However, the mentioned author points out that in Dr. F enochietto's work(25)this considers
that the technical consultant "may or may not have a qualifying degree, even if the profession was
regulated.
Nonetheless, and in opposition to the stated criterion, Dr. Duro(26)he manifests that the topic raised is
To say whether the technical consultant must have a valid title or not is of such depth that it goes beyond
framework of a simple comment, as practical, legal-doctrinal matters are intertwined and
gremial.
In this regard, Dr. Duro argues that, considering issues of a particularly legal nature and
procedural, these have led to the foundation that, to the extent that the appointed person does not sign reports,
it is not possible to prevent its formal designation, nonetheless understanding that other practical issues
they would make a clear definition advisable in this regard.
On the other hand, regarding the same topic, Dr. Bindaalso expresses that, despite not
there is no mention in the actual text of the CPCCN regarding the professional title that must be held
the technical consultant does not consider that there may be major doubts regarding the need mentioned that
the same must have the same professional title as that of the acting expert. Indeed, the cited author states that
theart. 472the CPCCN indicates that the report to be submitted by the technical consultant must comply with the
same requirements as the expert report, and this, in accordance with what is expressly determined by the
the mentioned article will contain 'the detailed explanation of the technical operations carried out and the
scientific principles on which it is based" (the highlighted in bold is ours).
Ultimately, it is considered that a technical consultant, without the respective professional degree, could hardly...
one of lower or different hierarchy, to pronounce on scientific and/or technical principles regarding the
those who cannot demonstrate their full knowledge and competence.

5.4. Replacement and substitution

It is interesting to note that, unlike the private experts,article 461the CPCCN establishes that the
the acting technical consultant may be replaced at any time during the judicial process by the party
litigant who originally proposed his designation.
In merit of this, the legislation itself states that the replacing professional cannot claim a
intervention that means delaying or hindering the completion of tasks or the response to the
expertise timely commissioned.

5.5. Compliance with professional work

Thearticles 471y475from the CPCCN establishes that the technical consultant may be present when
perform the tasks inherent to fulfilling the expertise entrusted by the magistrate to the expert
designated.
Additionally, the technical consultants of the litigating parties have the authority to present their own
reports to the magistrate, within the same deadline set for the acting judicial expert(art. 472of CPCCN), it
which, undoubtedly, can lead to a duplication of tasks and efforts that in no way
it would seem to be justified.

On the other hand, it is also appropriate to take into account that theart. 472 the CPCCN establishes that the
technical consultants of the parties—within the same timeframe set as that of the ex officio appointed expert—may
submit their respective reports separately, meeting the same requirements as those indicated
For this last one. Again, it is clearly appreciated that it is at the consultant's discretion to submit their report.
Although some authors state that it must be presented without fail, it is considered that
It is perfectly optional to raise it.

5.6. Regulation of fees

Between the expert appointed as a technical consultant and the litigating party that proposed his appointment arises
a relationship that derives from a service or work contract(arts. 1623y1629of the Code
Civil). Consequently, the proposing party is obligated to pay a fee (art. 1628), without it being
Is there any impediment for the parties to establish a formal agreement regarding this?
The work of technical consultants is not, in itself, free, but is expressly compensated.
(art. 461 in fine of the CPCCN), which, of course, tends to aggravate and burden with greater costs itself
judicial process.
In principle, it should be clear that the litigating party proposing the appointment of the technical consultant
will have to bear the relevant fees and expenses, if their intervention has been superfluous or
it is irrelevant.
On the other hand, if it were shown that the intervening magistrate took advantage of the report prepared by the
technical consultant and he really served and contributed adequately to the pronouncement of the sentence
The corresponding judicial fees and consequential expenses shall be assigned to the litigating party.
defeated.
Regarding who lost the lawsuit, they shall bear the fees and expenses of the technical consultant.
if he did not expressly request the expert points or denied them at that time. This is the case in this last one.
circumstance, unless the intervention of technical consultants has been unnecessary in such a way
absolute for the dictation of the sentence or the judicial resolution that puts an end to the dispute in question(art.
478from CPCCN).

5.7. Limitations and scope of action

According to the current procedural rules, the figure of the technical consultant is only provided for in
the CPCCN and as a consequence of it, they cannot be appointed in the labor and criminal jurisdictions, since in
in those forensic areas, their participation is not explicitly established. Likewise, due to their own nature
of its function, and considering the current procedural rules applicable in the matter, the consultants
technicians will not be able to act in succession trials, partition trials, arbitration, friendly trials
composers and expert arbitrators, as well as in the examination of books, except in the circumstance of request
express as a preliminary diligence.
As previously stated, it is reminded that the figure of the technical consultant has a certain
similarity and resemblance to technical delegates, expert reviewers, etc., although it is not assimilated
entirely to them regarding their specific task.

5.8. Advantages and disadvantages in the designation

As Dr. Gallo rightly stated(28), there are opposing criteria and opinions with
Regarding the designation of the technical consultant. Some say it is unnecessary, as it increases the
court costs, and, at the same time, does not provide better references than those it normally can and should give
a court-appointed expert.
On the other hand, others indicate that, due to the fact that the court-appointed expert is not known and has been drawn, it
they ignore the real responsibility, honesty, and suitability of it, as well as the effectiveness and the
concern in the fulfillment of their work and, therefore, certain supervision is needed
reasonable to his professional task.
In this regard, Dr. Gallo states that anyone who offers an expert testimony must know the way and the manner.
to carry out your control, through the proposal of specific, concrete, and necessary questionnaires, that
do not leave room for doubts or different interpretations. If that were not the case, the ineffectiveness would be on the side of the
proposing party, more than from the side of the acting judicial expert.
Another aspect of interest relates to wanting to obtain a favorable report from the appointed expert.
In light of this, someone is proposed who can exert "pressure" and act as a monitor to try to
divert answers or attack them.
In opinion, regarding the need or not to propose these professionals, it is considered that not only
they can be useful when the situation presented is extremely important, in reference to their
asset consequences, but also in cases that present controversial circumstances of very
high complexity.
In general, in simple and insignificant situations, their proposal would not be justified, since, as a result of
On the contrary, it would be undermining the merit of the acting experts themselves.
In this regard, Dr. Gallo adds that the technical consultant should not "harass the expert"; he should carry out his
specific task and he must observe, note down, and reserve his comments for the report that,
eventually, he will present to the judge at the right time. There he will have all the possibilities and powers.
to challenge, request an extension and seek the relevant clarifications that may correspond.
In summary, it is considered that many requests for the appointment of technical consultants are due to the fact that
the sponsoring lawyers need that specific professional support, as they do not know the way
due to requiring the respective expert report or not knowing how to properly interpret the responses
forensics and to avoid seeking extrajudicial advice, they resort to that professional service in the field
procedural.
 6. CURRENT NORMATIVE SITUATION IN EXPERT MATTERS
As a mere informative title, in the forensic field of the Federal Capital and specifically related to the
professional performance in expert matters, the following possible procedural figures deserve to be highlighted
to know

Labor Court CPCCN

Professional Performance
Law 22.434 Law 18.345 Law 23.984
Court-appointed expert yes yes yes
Proposed expert by party no no yes
Official expert no no yes
Technical consultant yes no no
Ad-hoc expert no no yes
Likewise, and as previously stated under title 2 of this comment, within
The brief statement above explicitly excludes those known as "administration experts."
public(article 93of thelaw 18.345) and the so-called "expert arbitrators" (provided for in articles 736 to 773,
inclusive, of law 22.434 of the CPCCN) due to its very limited practical application and its limited validity
in the forensic field of the Federal Capital.
In this regard, it can only be stated that in the scope of the Federal Capital and based on thelaw
2303 of 29/3/2007(B.O. 8/5/2007) the Penal Code of the CABA was enacted—later updated by the sanction
of thelaw 2452— in which it is established that in expert matters only the possible participation of the
court-appointed experts and those proposed by the parties (Article 130).
On the other hand, and taking into account what was previously stated regarding the qualification of
the different judicial experts existing according to the way of obtaining compensation and remuneration for
her professional work performed can be expressed as follows:

6.1. Hired experts

First of all, there are the professionals who work on a contractual basis (that is, for
the proposed lawyers on behalf of those who act in the criminal jurisdiction and also for the technical consultants that
they work in the ordinary jurisdiction.
Due to its own nature and the characteristics of its linkage and contracting, the difficulties and
problems regarding your fees for your expert work are limited and significantly reduced, given
that they can negotiate and agree with their clients in advance and freely prior to the
effective execution of their professional work.
In merit of that special circumstance regarding the effective receipt of their fees, they
They can also be agreed upon and made effective in stages during the performance of their tasks and upon completion.
from her (through partial advances and a final complementary payment).
Note that the procedural figures of 'technical consultant' and 'expert proposed by a party' have the common
characteristic of being hired by the litigating party interested in the results of the expert evidence
It is highly common for their respective performances to be confused and misinterpreted.
procedural, for which the informative annex included and attached at the end of this commentary
It illustrates schematically and comparatively the specific characteristics of both roles.
professionals.

6.2. Official experts

Regarding the official experts, there is also no problem in this aspect. They do not receive
fees during the fulfillment of their professional duties as they enjoy compensation
monthly in their capacity as officials working in a dependent relationship integrating and belonging
to the Judicial Power or to the various official security agencies.
6.3. Court-appointed experts
On the other hand, regarding this topic, the biggest and most serious problem is suffered by the
called "court-appointed experts" —also referred to as "list experts"—who within the
the group of judicial experts acting in the metropolitan forensic field constitutes the immense
majority (over 90%) and which—in general—are the best known as such in that context
specific.
Indeed, for the regulation of their professional fees, the acting judicial experts after
carry out their specific task ordered by the competent judicial authority must patiently wait for their
posterior regulation by the judge, which normally occurs only at the moment when
conclude the legal dispute processed.
On the other hand, when the regulated procedural fee "becomes final," the beneficiary expert must
try to be able to enforce (that is, collect or receive) from the condemned litigating party the respective
imported by its professional performance fulfilled already carried out previously, which, in many cases, does not
it constitutes a quick, easy, and also viable task.
Likewise, as is publicly and generally known, it must be kept in mind that the vast majority of
the judicial proceedings of a contentious nature that are processed in our country are not characterized by being
expeditious or of short duration.
Consequently, it constitutes a common and ordinary situation that there is a noticeable and significant
difference in time between the moment of the expert work execution and that instant in which the
the acting expert may be able to effectively collect the payment for the task
professionally developed in a timely manner, which significantly worsens the already mentioned situation
especially in an inflationary economic context.
Interestingly, this circumstance does not occur in the actions of the notaries involved in the
succession procedures for the registration of properties being transferred, nor with the auctioneers.
that act in the processes of auctions of movable or immovable property, since they receive their
fees almost immediately for their completed professional work.
In certain situations, the regulated amount generally tends to be directly related to the
monetary amount linked to the litigation being processed and to which it refers.
In summary, it is important to highlight that this unfortunate situation is experienced and suffered by all those
professionals belonging to various disciplines (doctors, engineers, accountants, architects,
chemists, calligraphers, etc.) who act as court-appointed expert witnesses in the forensic field
metropolitan.

6.4. Experts 'ad hoc'

In this regard, it is worth noting that in the case of professional activities carried out in the forensic field
metropolitan that develop and fulfill the so-called 'ad hoc experts' their situation in matters of
regulation and perception of their professional fees is similar to that of appointed experts of office
aforementioned.

7. CONCLUSIONS
In order to summarize and synthesize the most relevant concepts and comments that arise from
In this chapter, the respective conclusions are presented:
In our procedural legislation, the figure of the technical consultant is relatively recent.
Consequently, their knowledge, application, practice, and experience are not, even today, of
broad and widespread character within the metropolitan forensic field.
2. The only express normative references regarding procedural matters, corresponding to the action
From the technical consultant, they are recorded in section 6 under the title 'Expert Tests', part
this last one from cap. V, called "Test", of the current CPCCN.
3. Attentive to the moment in which the formal creation and establishment of this new role was decided
procedural figure, that is, the technical consultant, the normative provisions of professional bias,
linked with the graduates in sciences economic
—that is, both thelaw 20.488sanctioned in 1973, as the first professional statute of a character
national established by means of decree-law 5103/45, subsequently ratified by law—naturally
they did not contain express and specific references corresponding to that procedural institute.
4. In general, similar doctrinal and regulatory backgrounds are unknown in our country.
regarding the novel legal figure introduced in the procedural field, and also, the real
fundamentals and considerations that appropriately motivated their emergence within the regulation
legal alluded.
5. From the harmonic reading and careful analysis of the mentioned normative fragment, the evident
presumption that technical consultants tend to act preferentially and prioritarily as
direct advisors in the specific subject of their competence for each of the litigating parties, and
in an indirect and complementary manner of the intervening magistrate.
A wide spectrum of our doctrine assimilates the technical consultant as a true defender of the
part that designates it, to illustrate, advise and counsel it on the specific aspects of the
science, discipline or technique, unrelated to legal knowledge itself.
7. Consequently, the technical consultant presents a figure strictly analogous to that of the lawyer.
sponsor and operates in the judicial process similarly to the latter, thus it must
to understand it in the broad concept of the 'defender-consultant'. Ultimately, it is considered that in
there is a widespread consensus in our environment that the actions of the technical consultant
It constitutes a kind of 'technical sponsorship' for the one who proposed their appointment.

By virtue of this, the technical consultant represents the litigating party that proposed him in the manner
I express, on matters outside the legal discipline, which is why your work implies a particular form.
of 'technical sponsorship' perfectly differentiated from the legal profession exercised, own and inherent to the
lawyers.
A specific characteristic of this new procedural figure is its curiously hybrid nature and
ambivalent that can be acquired in its development and action, since, although, in principle,
it would seem to adopt a 'passive' role, it should not be neglected or forgotten that at any moment it can
to transform and face a fully 'active' role during the exercise of their functions and tasks.
9. Regarding its designation, the CPCCN establishes that this must occur when the litigating party
provide your own required expert testimony questionnaire.
10. Our current procedural legal framework has a clear gap as it does not contain
explicit and clear references regarding notification, acceptance of the position, and enabling title
related to the figure of the technical consultant.
11. The acting technical consultant, unlike the party experts, can be replaced at any time.
moment of the judicial process by the simple will of the litigating party, which proposed its timely
designation, without any need to justify the reasons that may drive that attitude.
12. In terms of fees, it should be stated that the work of technical consultants is not free.
but the monetary compensation for his/her actions during the is expressly contemplated
judicial process.
13. Depending on the specific field of their expertise, the possible actions of the technical consultant
it will only be limited to civil, commercial, and federal jurisdictions, belonging to national justice; it is
to say, the courts of the Federal Capital and those of a federal nature with jurisdiction in the different
provinces of our country. Consequently, it is not considered viable nor appropriate to the
performance of technical consultants in labor and criminal jurisdictions.
14. In summary, in our procedural order, and considering the experience gathered, there are criteria and
opposing opinions regarding the convenience and timing of resorting to services
from the technical consultant.

It is considered that such a professional can be useful when the situation at hand is of utmost importance.
importance, regarding its consequences and patrimonial effects, or in cases where it
present controversial circumstances or highly complex facts.
 Nevertheless, it is noted that many requests for the appointment of technical consultants are due to the fact that
the sponsoring attorneys need that direct and specific professional support, as they do not know
the proper way to request the respective expert report or have doubts about how to interpret
adequately the expert responses and to avoid seeking extrajudicial advice they resort to
that specific professional service in the procedural field.
Comparative table. Technical consultant and proposed expert: main analogies and differences
existing.
Proposed expert
Matter considered Technical consultant
from part
1. Registration Does not have. Provided for in Article 254 of the CPPN, in the criminal jurisdiction.
Optional. A proposal by part with ratification
2. Designation Elective. At the proposal of a party.
the magistrate's posterior.
3. Notification Not applicable. By the judge who formally designates him.
4. Acceptance of position Elective. Mandatory.
Only by the judge who appointed him and for cause
5. Replacement By the part that proposed it (without cause).
justification.
6. Suitability Does not have. It must be specified.
7. Recusal Does not have. At the request of the expert and for just cause.
8. Recusal Does not have. It is the same as for the judges.
9. Independence of
It is not necessarily required. Total, regarding the intervening litigating parties.
criterion
10. Functions and
Optional. Mandatory.
performance
Advise and assist the party that
11. Main purpose Advise and assist the judge in his professional work.
proposed his designation and intervention.
Commonly, they are agreed upon in advance with the party that
In general, they are agreed upon in advance with
12. Fees he proposed his appointment. Failing that, they must regulate them
the part that proposed his designation.
the judge.
13. Claim in collection Initially, only to the party that Initially, to the party that proposed its
of the fees he proposed his appointment. designation.
CHAPTER XIV

THE EXPERT ARBITER WITHIN THE ARBITRATION AND FRIENDLY SETTLEMENT TRIAL

Norma Cristóbal

ARBITRAL JUDGMENT

Introduction
This way of resolving conflicts constitutes an alternative to the usual judicial process in Courts.
with Judges of the Judicial Body. The 'arbitrators' are here specially appointed persons and to the
effects of the resolution of the conflict in question.
The applicable regulations correspond to what is determined in the Civil and Commercial Procedural Code.
I was bornon(1)in its Book VI, Title I.
1.2. Object
What conflicts can be resolved through this practice? All those that can be.
within the scheme of the transaction and all those that are not expressly prohibited.
We could elaborate by saying that the issues should not involve a matter of public order, but rather of
private matters that do not infringe on the rights of the person, family, or heirs.
The code refers to the fact that the same issues that cannot be arbitrated will not be able to be arbitrated.
solved through the Transaction(2).
Let's see what the law provides on the matter.(3):
a) The criminal actions to accuse and seek punishment for offenses, whether by the injured party or by the
public ministry, although it does accept the civil lawsuit that may correspond regarding said charge.
b) Issues of validity or nullity of marriage, unless the transaction is in favor of the marriage.
c) Things that are outside of commerce, and rights that are not subject to being the subject of a
convention.
d) Responses related to parental authority, neither about the family status itself, nor about the right
to claim the status that corresponds to people.
e) Regarding eventual rights to an inheritance, nor about the inheritance of a living person.
Regarding the rest of the issues, a compromise could be reached; therefore, by application of the Law, it could be applied to the
arbitral resolution of the conflicts operated on them.

1.3. Formalities of the arbitration process

At the time of entering into a contract or agreement of any kind that links them in obligations.
reciprocal, the parties may include a clause in which they foresee that if a conflict arises it does not
they will take legal action not through judicial means but through the Arbitration Process. This clause is named
compromise denomination.
They may also not have anticipated anything. In this case, they can invoke the subscription of a commitment.
arbitral before or after a legal action has been filed or at any stage of it.
In any case, the arbitration commitment must be subscribed before the development of the arbitration with the
following characteristics:
It must be granted in writing.
2. In a public or private instrument, or by act extended before the Judge of the case or by the one who has.
corresponded.
3. Determine a reliable date.
4. Designate the names and addresses of the grantors.
5. Establish the name and address of the arbitrator(s).
6. Determine the issues that will be subject to arbitration.
7. Provide penalties for the case of non-compliance by either party.
8. Optional clauses may be considered:
a. Establish a location different from that of the granting of the commitment for the purposes of the arbitral award.

b. The deadline for the Award to be granted.

c. The commitment of the parties to waive the right of appeal.
d. Establish a fine for the appellant of the ruling if there is no committed resignation according to the
previous paragraph.
 In the same way, the Commitment will be extinguished.(4)by unanimous decision of the subscribers, by the
the course of the agreed or legal deadline, whichever applies, or when three months have elapsed
the parties or the arbitrators would not have carried out any act or diligence aimed at initiating the process
arbitral.

1.4. From the referees

Adults in full exercise of their rights can serve as referees.
civilians according to what is established by the Code(5)the ones who will be chosen by the parties. The task of the arbitrator is
paid.
The number of arbitrators will depend on the type of conflict and the complexity or subjects involved in it.
same. Its number will always be odd.
When the designation is made in this way, there are no limitations regarding the choice.
as long as the minimum legal requirements are met. This type of arbitration is called 'free or ad hoc'.
The designation may also fall on a specialized institution in the area by agreement of the
parts and it is commonly referred to as "Institutionalized Arbitration". Generally, this situation occurs when
there is an arbitration clause in a contract, as we saw in the previous point.
The institutions that offer their expertise and technique on arbitration issues usually have a defined
Internal regulations for the purposes of the election of the referees and the processing of the process. They have
a closed list of qualified individuals in the area, which the parties must consult for the purposes of
to designate among them the referees. Their selection is not open or free, it is subject to those who
register each Institution.
As an example of this type of services, we can mention the one provided by the Professional Council of
Economic Sciences of the C.A.B.A. (CPCECABA). This Institution established an Arbitration Tribunal.(6)what
it has its own internal organization consisting of a Director, a Secretary, Referees, and Assistants. It has
its General Regulations where the functions of each of them are detailed, how they will be elected
periodically the referees to integrate the list, the incompatibilities and requirements and how they should proceed
the parts for their designation. It contains the guidelines to carry out the process and the sanctions for the
members of the Tribunal in relation to their professional and ethical obligations.
Its jurisdiction is directed to "...any issue, national or international, in which the
validity, interpretation or compliance of acts, contracts, agreements, conventions, pacts, and any other
subject that has as its object transferable property rights, and damages and losses
emergent from them, in which the parties require the intervention of the Tribunal to arbitrate or resolve
disputes as an impartial third party, whether or not there is an arbitration clause for that effect. The enumeration
The precedent is simply enunciative, not exhaustive, with competence being of a broad nature..."(7).
This Tribunal is often appointed in arbitration clauses of partnership contracts
commercial establishments that are located in the capital area, which in the future is a quick and effective option for the
solution to the controversies that usually arise within the company for various reasons and that
they contain heritage aspects.
Finally, we want to highlight what should be considered when choosing who
will perform the function, as the success of the ruling and the resolution of the conflict will depend on it: that the arbitrators
they exercise true jurisdiction with the same force as ordinary judges: they must meet similar
qualities that judges possess regarding impartiality and independence of judgment in relation to the
parts.

1.5. Arbitration process

Once the use of the arbitral institution is agreed upon and the arbitrators are appointed, having they accepted their
positions, the Arbitral Tribunal (AT) is established. If the parties have not determined a procedure to
whether or not it is about institutionalized arbitration with its own regulations, the TA must be guided by what is provided
for ordinary or summary trials as they choose according to the magnitude that the case warrants(art.
741CPCCN).
 The award will be issued on the date foreseen by the parties or agreed upon with the parties for extensions.
requested. It can be issued unanimously or by majority if any of the members of the TA have not been
gathered or refuses to speak. It may also issue a partial award when the majority has
defined on a part or point of the object of the lawsuit. In these cases, a new member will be appointed.
TA to express itself on the remaining outstanding issues.

The ruling can be appealed within five days by a reasoned written statement and the admissible appeals are
the same ones that operate in the judgments of the Judges of the Judicial Courts, except that in the
arbitration agreement the parties would have expressly waived that right(9).

2. ARBITRATION BY FRIENDLY COMPOSERS

This Institute is provided for in thearticles 766a772from the CPCCN. As can be seen from the amount
The articulated text concerns a less regulated and simpler procedure.
All cases can be resolved by decision of arbitrators or amicable conciliators (ACom)
that may arise from arbitration judgment. If it was not clarified in the arbitration agreement,
you will understand that it is from friendly mediators.

The same requirements that apply to referees regarding their ability, form, and apply to the ACom.
recusal.
The difference between both processes lies in the fact that in ACom it is free, it is not subject to forms.
legalities to which they submit in the Arbitration Trial. The Acom receive the documentation and reports that are
they supply the parts, listen to them, and according to their loyal knowledge and understanding, they resolve. In the Award of the ACom prima
equity before legal regulations, which does not mean that it should not be based (unless the parties do)
they would have expressly dispensed with it).
In that sense, we lean towards what was stated by Marval, O'Farrell & Mairal10In an arbitration of
friendly arbiters, the referees, who must rule fairly, are exempt from the obligation to
to apply legislation or positive law which provides the possibility, in certain cases, to reach
a fairer solution.
If no time limit is expressly set for issuing the award, it must be carried out within three.
months after the last acceptance of the position of ACom.

3. THE ARBITRAL EXPERTISE

3.1. Generalities and scope

The Institute of Arbitrary Expertise or Arbitration Judgment is regulated by theArticle 773from CPCCN
and it is a procedure used only in 'matters of fact expressly stated' and that will apply to
the provisions in Article 516 thereof, due to '...that the settlements or accounts were very
complicated and of slow and difficult justification or require special knowledge...
We can define it as the '...judgment issued by specialists in a particular field of knowledge'
scientific, technical, industrial or artistic, through which a dispute can be settled out of court, or
to contribute well to the development of a procedure for the execution of the sentence...(11).
The rules of the ACom trial apply both to the processing and the non-appealability of the award.
the appointed expert arbitrators must have technical capacity in the subject matter of the award.
The resolution will be binding for the Judge. The matter is resolved with the decision of this arbitration expert.
The deadline for resolution is one month from the last acceptance, unless a deadline was established.
determined.
3.2. Applicability
Dr. Jaime Anaya indicated that the summary procedure of arbitration expertise(12)should be taken into account
It serves as an archetype for 'commercial procedures in all cases of legal conflicts.
generated by differing appreciations of factual circumstances." The paragraph says it all: it is a way
agile, non-recurring and easy to apply, however, in practice it seems to be overlooked.
Let's see when its application is considered in addition to what is established in the CPCCN, in some examples.
from the provisions of the current Commercial Code:
a. The brokers and administrators of deposit houses in all cases where they were obliged
to pay the parties for lack of effects or other damages, they must carry out the appraisal
arbitral experts (art. 128).
b. In contracts for the shipping, carrying, or transport of goods, 'the doubts that occur between the
the consignee and the carrier regarding the condition of the goods at the time of delivery, will be determined
"arbitrators, having the result documented in writing" (art. 182).
c. In commercial sales contracts, the seller who then '...upon completion of the sale,
If the sold item is alienated, consumed, or deteriorated, the seller shall be obligated to provide the buyer with another one.
equivalent in kind, quality, and quantity, or, failing that, the value as judged by arbitrators
attributed to the sold object, in relation to the use that the buyer intended to make of it, and to the profit that
I could provide it, lowering the sale price, if the buyer had not paid for it yet.
(art. 471).
We chose these three cases as an illustration, but it is not exhaustive; there are others where
the Institute is planned.
Particularly regarding Professionals in Economic Sciences, it is attractive from the point
From a practical professional viewpoint, the drafting of article 516, which we mentioned earlier, given that it makes
reference to the complexity of the accounts and therefore extensive to everything that has a patrimonial root,
what we don't understand is how this way of resolving conflicts doesn't have more followers.
It's time for us to advocate for its dissemination.

4. PROJECT UNIFICATION OF THE CIVIL AND COMMERCIAL CODE OF THE NATION

In the project currently under parliamentary consideration sent by the Executive Power of the Nation13, the
The arbitration theme is found included in Title IV reserved for Specific Contracts, and there
in its Chapter 29 as "Arbitration Agreement" covering articles 1648 to 1665.
The very fact of incorporating it into that title is a modification or rather a recognition
of the practice. Regarding the definition and controversies that may be praised for this form of resolution, not
There are changes.
Regarding the formalities, we can highlight the mention that it must be done in writing and that the
compromise clauses must correspond unambiguously with the related contract and be in writing
highlights again.(14)
Regarding the types of arbitration, it refers to 'arbitrators' judgment' and 'friendly conciliators', the former
of law, the seconds of equity (which refers specifically) and tilting in favor of the process of
unless explicitly authorized, arbitrators are not allowed to do so based on equity as per the CPCC.N(15)This
it implies a reversal of the criterion that is currently provided in theArticle 766from CPCCN that before
the omission leans towards ACom. Let's agree that it is wise for the liberality of the process to be left free
to the unequivocal will of the parties by consensus and not the other way around.

It specifically refers to institutional arbitrations.(16) , those who were not found

expressly provided for in the regulations and establishes that the Arbitration Regulations of those
entities will be the ones that govern these processes and will be part of the arbitration contracts. This is a
recognition of the progress that professional entities have experienced in the last twenty years
civil associations on the matter.
Regarding the optional clauses(17)include the possibility to choose the language in which it should be
develop the procedure(18) There is no mention of the possibility of waiving the resources of
appeal and/or nullity. It includes the possibility of establishing pro-rata distribution of costs.
This is not expressly planned for today, but it was not prohibited so it was usually considered, and
Conversely, in the same way, we believe that the waiver clause could proceed.
Regarding the quality, obligations, and manner of recusal of the arbitrators, it maintains the provisions of the
CPCCN, clarifying the procedure in case of lack of appointment of
referee for either party(19).
It does not refer to the Arbitrary Expertise but its application arises from other articles.(20), therefore
we do not see variations in practice, except for a virtual reform contrary to the CPCCN.

5. THE SO-CALLED 'AMICUS CURIAE'

5.1. Definition
To intervene in a process without being a party to the proceedings, with the sole purpose of providing a legal opinion in favor
of Justice: this is, quite simply, the nature of a friend of the court, which is the translation that
friend of the court(21)
We could say that we liked that definition, which is why we opened the topic with it.
The 'amicus curiae', hereinafter referred to as AC, is an institute of procedural law that allows those unrelated to a
judicial controversy, which have a justified interest in the final resolution of the litigation, may offer
opinions considered essential for the substantiation of the process.(22)
Generally in the cases where this type of people appears, the subject of the litigation or situations
Those connected to him are linked to the public interest.
It does not affect the principle of procedural economy since what the AC does is attach useful information.
and expert opinions on the cause of the litigation.

5.2. Background
Although there are precedents in Roman law where the Judge or 'Jurex' could be
advised by a lawyer in situations he personally deemed necessary, is in common law
where he has seen its development.
With the advancement of statements in favor of the Recognition and Preservation of Rights
Humans, children, environmental issues, and other public order matters, the figure has been used in different ways.
ways through International Courts of different orders.
The Inter-American Commission and Court of Human Rights provide that the President may
to invite anyone interested to give their opinion in writing on the points submitted for consultation
to the Commission(23).

Within the United Nations, the Convention on the Rights of the Child in itsArticle 4forces the
States must take all necessary measures to enforce the rights provided for in the convention.
This is why within its organization it stands out(24)...Below is an indicative list but not
exhaustive of the types of activities that national human rights institutions should carry out
in relation to the exercise of children's rights in light of the general principles stated
at the convention... adding(25):"to provide the courts with their specialized knowledge about the
children's rights in appropriate cases, in the capacity of amicus curiae or intervening party.
 In the agreements and regulations for the resolution of disputes of the World Trade Organization
provides a special section that deals with obtaining information and opinions from experts about the
issues in controversy(26).
These are just some of the pronouncements incorporated at the international level regarding the institution.
Delamicus court study.

5.3. Treatment in Argentine law and courts. The ruling of the Court
The Institute has not been incorporated into the legal texts, nor is its treatment anticipated in the Project of
Reform, however, has been introduced in various judicial opportunities over the last twenty years.
The Supreme Court of Justice of the Nation ruled in favor of the inclusion of the AC Institute on the 14th
of July 2004 in its Agreement 28.(27)
The High Court, based on the constitutional provisions that enable it to do so(28)...authorized the
intervention of Friends of the Court, in accordance with the regulations that, as an annex, is an integral part of
this agreement(29).
The Regulation basically establishes the possibility of using the Institute in all five articles.
the judicial processes either in original jurisdiction or in appeal (article 1°).
Both natural and legal persons present themselves before the Court with the sole purpose of expressing
your opinion on the background issue of the litigation, which must be done within fifteen working days of the call
of cars for judgment (also article 1°).
Express the need for the person who makes use of this possibility to be someone with recognized
competence in the matters of the case (article 2°).
It is clearly established that it does not have the status of a party nor enjoys any procedural rights.
nor for fees and any compensation for their opinions, which are only intended to illuminate
to the Supreme Court and they are not binding (articles 4 and 5)(30).

We specifically find the formal inclusion of this Institute and its

regulation although it would be interesting if it were done broadly and through a national law.
We believe that it is always necessary in litigation, especially in those that should consider
special situations that affect the public interest, that the Courts have, when ruling, with the
the maximum possible amount of information and opinions that lead you to make a balanced decision, that you feel
always precedents and that could indirectly affect a large sector of society.

5.3.1. Some cases of practical application

For illustrative purposes, we have conducted a review, at our complete discretion, in which we present
I express the collaboration received from the Courts by the AC Institute, which has been
presented in courts and were added(31).
In the cases we chose, rights or public order situations are affected, hence the
acceptance of the causes and their inclusion, as we will explain, within the recitals:
The Center for Legal and Social Studies CELS was accepted as AC on August 5, 1996 in the
Criminal and Correctional Court No. 2 of the Federal Capital in a case of preventive detention of a
terminally ill with HIV. The considerations expressed by CELS were decisive for
that the Court grants the defendant's release for the humanitarian reasons expressed and due to
the restrictive manner in which preventive detention must be applied(32)This later served as a precedent
for other presentations and, in turn, all these situations gave rise to the need to modify the
application of custodial sentences, in cases of terminally ill patients and others
special situations, culminating in the sanction of theLaw 26.47233) what modified the Penal Code
in that sense.
On June 13, 2005, the presentation made by the Environment and Resources Foundation was added.
Naturales FARN in the Court of Appeals in Civil and Commercial matters, room IV, of the City of San
 Pedro in Jujuy. FARN was requesting sanitary measures aimed at preventing lung infections.
in the population surrounding a productive establishment(34).
3. "Sánchez, Carlos P. v. General Audit of the Nation s/Termination""35In the considerations of the ruling
...3) That in accordance with what is established in the agreement 30/2007, the Court summoned a
public audience of an informative nature, which took place on April 1, 2009, and in which the
The legal representatives of each of the parties were questioned about various aspects of
the controversy, as recorded in the minutes and the documents included in the file. Also
appeared in the capacity of amicus curiae and made their presentation through their
legal representatives, the State Workers Association and the Staff Association of the
Control Organizations
4. "F., A. L. s/self-satisfying measures". The Supreme Court of the Nation authorized the performance of an abortion for a minor, which
she became pregnant after being raped by her stepfather, since the supposed non-punishable abortion
contemplated in art. 86, section 2 of the Penal Code, includes that which is practiced regarding everything.
pregnancy resulting from rape, regardless of the mental capacity of its
victim. In point 4 of the considerations regarding the ruling, the Court states '...That, once the case is filed before
in this instance, the transfer was granted to the General Attorney of the Nation, who assumed the
representation of the girl A. G. and expressed that it was appropriate to confirm the appealed sentence (fs.
980/1010) while understanding that all cases of forced pregnancy —victims of
violations—should be considered as non-punishable abortions, more precisely, as cases
particulars of the general hypothesis of danger to the health of the pregnant woman (article 86, paragraph 1, of
Criminal Code). Likewise, the Public Defender for Minors and the Incapacitated was also notified, who
he assumed the representation of the unborn and issued a request for the appealed sentence to be revoked
(fs. 683/694). In both submissions, it was requested that this Court declare the admissibility of
resource under examination, as did the various amicus curiae that were presented requesting
the confirmation or the revocation of the sentence..."(36).
5. "Scorofitz, Néstor E. and others v. /GCBA on amparo (art. 14, CCABA)""(37)It was provisionally suspended
the construction works of an underground parking lot in a park until
expert forensics expert in dasonomy prepare a specific report on the environmental impact of this
construction. In the recitals, the added character of Amicus Curiae of the Court appears.
legislator María José Lubertino.

5.4. Scope and differences with other institutes

The friend of the court or AC aims to provide opinions, studies, and any document or
research that could serve the cause and in defense of the public interest that it could involve.
In no way does the AC become part of the complaint, nor does it intervene at the level of any official.
the judicial assistant or the expert.

Their participation is also not binding on the Judge's decision. But it constitutes a tool.
of great help for those in thorny issues like the ones we mentioned in the previous section.
The institution of AC cannot be compared to arbitration as it does not constitute a 'judge', although with
his opinions may favor one of the parties involved, in his statements, what will prevail is always
public order issues.
Unlike the role of the mediator, it does not aim to bring the parties together to resolve their issues.
differences, but it is managed through the intervening court.

5.5. Conclusions
We believe that any information or analysis and research on a topic that can help
to the Judge or the intervening Court to resolve a conflict whose substance is linked to the public interest,
Always welcome.
Therefore, and even more so, supported by the agreement we referred to above, we defend the
institution of the AC whenever the circumstances warrant it.
 And furthermore, we believe it is an opportunity for other institutions to get involved in the issue.
Judicial and thus 'build bridges' that serve to create better applied justice.

6. ARBITRAL TRIAL IN COMMON MARKETS

6.1. Preliminary considerationss(38)

To achieve a process of total integration, one must go through an upward path towards
that objective. The stages will strengthen the associative criterion until achieving economic integration.
financial and political.
The path known to date indicates:
1- FREE TRADE ZONE: occurs when tariff barriers are eliminated and the
most-favored-nation clause.
2- CUSTOMS UNION: a common external tariff is added to the previous level for
imports and exports. There are no tariffs among the member countries.(39).
3- CUSTOMS UNION: it adds to the previous points the administration of the common external tariff
through a joint customs organization that grants each country a predetermined percentage,
about common customs revenues, with another percentage for joint administration.
4- COMMON MARKET: there is free movement of goods, people, capital, and services(40).
5- ECONOMIC AND MONETARY UNION: macroeconomic, sectoral, and social policies coexist
common and the circulation of a common currency.
6- POLITICAL UNION: Through a common Constitution with Executive and Legislative Bodies
Common judiciary.
Each of these stages, in which there are different states with their own government structures,
with different currencies (up to stage 5), with legislation that is incorporating the directives and
common regulations, but with nuances of application, with different external tariffs, between
other differences lead to conflicts being a daily occurrence and needing to be resolved in a
consensual framework for this. This is as long as one wants to continue advancing within the framework of the
integration.
For this, the common markets(41)they incorporate different forms of institutionalized arbitration
depending on the stage of integration they are in.

6.2. Mercosur

6.2.1. The path to union

The Asunción Treaty(42)it embodied the will of the subscribing countries for the creation of the Market
Common of the South, established a first institutional basis and a criterion for the resolution of disputes,
establishing a transition period with a deadline of December 31, 1994.
In 1994, the Ouro Preto Protocol was signed.(43)—hereinafter POP—committing to the personality
international legal framework of Mercosur, consolidating its quasi-definitive institutional organization, in addition to
previous Treaty of Asunción.
The 18 of February of 2002 is subscribed the PROTOCOL DE OLIVES
hereinafter PO, for the purpose of consolidating legal certainty through the perfection of
dispute resolution system.
6.2.2. Current institutional organization
The institutional system adopted by Mercosur corresponds to that of intergovernmental institutions.
Independent bodies have not been created, but the organs of the common market are integrated with the
political representatives of the respective ministries or secretariats of each member country.
It consists of:
1- THE COMMON MARKET COUNCIL—CMC—: is composed of the ministers of relations
Foreign ministers, the economists, and the Heads of State. It carries out the political leadership of Mercosur.
2- THE COMMON MARKET GROUP—GMC—: is the executive body, coordinated by the Ministers
of Foreign Affairs and comprised of four regular members and four alternate members from each country,
from the areas of foreign affairs, economy, and equivalents. It is their responsibility, like the previous one, to ensure
compliance with the treaty and its agreements, and also study the means for harmonization of
standards, for which it has created working subgroups, according to the respective orientation of the area
of treatment.
3- THE TRADE COMMISSION—CCM—: assists the GMC, ensuring the implementation of policies
Agreed commercials, for the proper functioning of the UA. Each country also has its own CC.
composed of its own officials who previously receive the complaints from their country and present them to the
CCM.
4- THE ADMINISTRATIVE SECRETARIAT—SAM—: it is purely administrative in nature and is rotated.
the seat among the different member states.
5- THE AD HOC ARBITRAL TRIBUNAL—TAHM—: they are independent tribunals and the arbitrators arise from
a list that is in the possession of the SA. The conflict resolution between the parties has
previously the internal administrative stage between the parties. If no consensus is reached in this stage,
it proceeds to the arbitration award in the aforementioned terms. The rulings are binding for the parties.
For individuals, the situation is more difficult since they have to present their complaint beforehand.
in the CC of your country, so that it can address the claim, if it is not processed, you will only have
the internal judicial route against the state itself.
6- THE JOINT PARLIAMENTARY COMMISSION—CPC—: composed of 64 members, eight deputies
and eight senators from each country. It has only advisory and promotional powers to initiate in the
respective parliaments the approval of the agreements made in Mercosur.
7- THE ECONOMIC AND SOCIAL CONSULTATIVE FORUM—FCES—: is an entity made up of
representatives of the economic and social sectors of the member countries in equal number. It has
character of counseling and consultation.
8- PERMANENT REVIEW COURT—PRC—: hears and resolves review appeals against
the awards of the TAHM.

6.2.3. The resolution of disputes after the Olivos Protocol

The PO did not create supranational bodies, in this case of justice, but instead the arbitration system was used.
to resolve the conflicts raised within it, but as a concept of Ad hoc Tribunal, not
permanent.
The issues raised between the member states will be resolved through direct negotiation, by
elevation to the GMC or by arbitration procedure, according to what we outline below:

Without prejudice to these procedures, the WORLD TRADE ORGANIZATION—WTO—, also

understand in commercial controversies between countries whether or not they are members of a common market, therefore
that the parties may appeal to it for those purposes, if it is within the competence of that organization. However,
Once an arbitration procedure has begun in one of the possible Tribunals, the right to exercise it is extinguished.
in the rest, for that same case(44).
Upon reaching the arbitration stage, the Ad Hoc Tribunal is established, comprising arbitrators selected from a compiled list.
by the experts timely listed by the member countries, the president of the same cannot be
national of the States party to the controversy.
The Court has 60 days, extendable for another 30, to issue its ruling.
The decision may be subject to a Review Procedure(45)within the TPR only for reasons
of law and legal interpretations developed in the Process within the TAHM, and must be issued
within 15 days from the notification.
Unlike Arbitration, the Permanent Review Tribunal operates on a permanent basis and is integrated.
by principal and alternate referees chosen by the parties for a term of two years.

6.2.4. Functions of the Mercosur Arbitration Courts

According to the PO and the mentioned regulations, the main functions of the Courts
Arbitrators of Mercosur are:
From TAHM:
a. Understands in the controversies between the States parties at the request of these or individuals
b. Provisional measures ordered
c. Issues Resources for Clarification
d. Resolve disputes regarding compliance with the award
From the TPR:

a. To issue advisory opinions that are requested of it

b. It is the Review Body of the Rulings of the TAHM
c. Sole Instance in case of controversies
The rulings issued by the Courts, TAHM, and TPR are mandatory for the State parties in the
controversies and, once final, assume the character of res judicata.
On the contrary, those opinions requested in a consultative capacity are not mandatory nor
binding, but they obviously exert an orientation aimed at bringing relationships 'in good standing' within
from the context of the common market.

ANNEX JURISPRUDENCE

ARBITRAL EXPERTISE
Arbitration expertise. Binding nature. Request for clarifications and observations on the report.
Dismissal. "Debaribieri, Ernesto Gabriel v. Goldstein, Pablo D. s/ordinary", Commercial Court, chamber C,
13/07/2007
FALL
SEEN:
I. The present proceedings were elevated by virtue of the appeal for the subsidiary.
filed by the defendant against the order on page 742. The motion from the appellant is on pages 743/745.
II. The defendant expresses that he is aggrieved by the decision of the 'a quo' in that it dismisses the request for
clarifications and observations made in relation to the report presented by the expert arbitrator
timely appointed. It adds that neither the parties nor the Court sought to submit the issue to the
decision of an 'arbitral judge' and that the legal nature of the report on pages 674/731 allows for the formulation of
requests for clarification aimed at shedding light on aspects that are considered insufficiently
explained. III. From the evidence of these proceedings, it can be clearly inferred that the
decision of the judge of the previous instance, stating that the accounts to be made were complex and of
slow and difficult justification was to appoint an 'expert arbitrator' to make a ruling, formulating the account
that the final ruling mandates (see v. f. 640). As a result of this and since the decision of the
The expert arbitrator is binding for the judge, contrary to what happens with the expert evidence in which
the judge may withdraw from the expert opinion, the defendant's claim is excluded from the discussion.
order to the observations and requests for clarification that he made through his presentation of fs.
739/740. The binding nature of the arbitral expert report is positively legislated in the last section of
art. 773 of the Procedural Code, when it says that 'the judicial decision (...) shall conform to what is established in the
arbitral expertise" (Serantes Peña—Palma, "Procedural Code", Volume III, p. 435, item 6) and, for that reason,
It should be noted that the request of the defendant has been rightly denied by the judge 'a quo,' to whom,
As she herself puts it, she has the option to appeal the ruling that declares
the validity of the ruling (see f. 744 vta.—first paragraph). Moreover, it should be emphasized, as it is well stated
the "a quo" citing Fenochietto, that against the opinion of the arbitration expertise, such is the case in these proceedings, does not
foresee the possibility of any appeal. This is a consequence of the abbreviated nature of the process
executory (v. f. 747—third paragraph).
IV. Therefore,
IT IS RESOLVED:
Dismiss the subsidiary appeal filed by the defendant and, consequently, confirm the
pronouncement of f. 742. No costs due to the absence of a contradictor.
Return.
ARBITRATION
General Arbitration Tribunal of the Buenos Aires Stock Exchange. Validation of the Chamber
Commercial, room D October/2007
SUMMARY: It is a foreign company - authorized by the National Securities Commission -
made a public tender offer for shares representing the capital stock of its subsidiary to
to increase their shareholding.
The shareholders' meeting of the controlled company decided on the voluntary withdrawal of the public offer and
quotation of the shares representing the capital. The plaintiff, minority shareholder of the latter,
He/she filed an objection action because he/she considered that the offered price was not equitable.
The General Arbitration Tribunal of the Buenos Aires Stock Exchange considered that the price of $
7.06 offered by the controlled company to the minority shareholders was not 'equitable' in terms of
art. 32, section d), of decree 677/01, nor was it the one sought by the claimant.
The Chamber confirmed the appealed arbitral award, modifying it to state that the price is
set at $7.97 per share, with an additional increase of 1%.
RULING of the National Chamber of Appeals in Commercial Matters - chamber D

Buenos Aires, October 3, 2007

Relevant parts regarding the expert and arbitral topic.
Dr. Pablo D. Heredia said:
1°) After obtaining the corresponding authorization from the National Securities Commission on 07-11-03,
the firm D.A. International (a company incorporated under the laws of the Cayman Islands, based in the
The U.S.) made a public offer for the acquisition (hereinafter, OPA) of class A, B, and D shares that do not
outside of their property, representative of the share capital of their controlled company Atanor S.A., for the purpose of
increase its shareholding by 33.60% above what it already owned at that date (66.40%).
In the corresponding advertisement, D.A. Internacional offered a price of $7 per share and anticipated that of
For the takeover bid to be successful, Atanor S.A. would require calling an extraordinary shareholders' meeting.
to consider the withdrawal of the shares of said controlled entity from the public offering regime regulated by law
No. 17,811, as well as the delisting of shares by the Buenos Aires Stock Exchange.
Aires, and that he would vote with all his actions for the approval of those decisions (p. 39).
As a result of the takeover bid initiated by D.A. International, the board of Atanor S.A. commissioned
Infupa S.A., in accordance with the provisions of Article 32 of decree 677/01, an evaluation of the price
offered, resulting in a report in which the mentioned consulting firm concluded that it was $7 per share
it was reasonable (pp. 40/41 and 49/52).
Under those conditions, D.A. International sent Atanor S.A. a letter specifying the acquisition offer.
at the value of $ 7 per share (p. 53).
Subsequently, the board of Atanor S.A. requested an update from the consulting firm Infupa S.A.
valuation of the shares with a view to another takeover bid, resulting in a value of $7.06 each
action (pages 58/59 and annex on pages 60/109).
Considering the aforementioned background, on 03-31-04 the shareholders' assembly of Atanor
S.A. resolved the voluntary withdrawal of the public offering and listing of the shares representing the capital.
(fs. 239/240) and, as a consequence of this, in the terms of art. 31 of decree 677/01, the company carried out
a tender offer directed at the holders who possess them of any kind, with the exception of the controlling D.A.
International whose shareholding participation, at that time, amounted to 98.302% of the share capital. In
concrete, the takeover bid offered by Atanor S.A. to its minority shareholders as a result of the withdrawal
volunteer of the public offering and listing, aimed at 1.698% of the share capital, at the value of $7.06 per
each action, indicating - in accordance with precisions provided by the National Securities Commission -
that it was understood as a substitute procedure for the right of withdrawal provided for by thelaw
19.550(according to the prospectus on pages 111/124 and advertisements on pages 55 and 56).
Such OPA was communicated to the minority shareholders, among them, Mr. Guillermo M. Ruberto (see
note on page 126), who considered that the price offered for the acquisition was not 'fair' according to
required by art. 32, inc. d), of decree 677/02 promoted an action to challenge said price before
the General Arbitration Tribunal of the Buenos Aires Stock Exchange in the terms of art. 30 of such
regulation, aiming for the highest price of $35.32 per share (pages 148/163).
This action of objection was resisted by Atanor S.A. (fs. 324/349).
2°) On pages 876/896, the General Arbitration Tribunal of the Buenos Aires Stock Exchange issued by
a majority ruling that considered the price of $7.06 offered by Atanor S.A. to its shareholders
minorities was not "equitable" in the terms of art. 32, inc. d), of decree 677/01, and it was also not
the one intended by Guillermo M. Ruberto. As far as this is concerned, he understood that the price that corresponded
to have as 'equitable' was $10,935 per share, being such value that Atanor S.A. had to pay
to the claimant for the acquisition of the 178,600 shares of which he is the holder.
.........
Against such award, the legal representation of Mr. Ruberto filed respective appeals.
and, through its attorney-in-fact, the firm Atanor S.A., being granted the
two (pages 924 and 960). Both appeals were opposed by the respective opposing party (pages 969/979 and
980/992.
............
For its part, the National Securities Commission regulated these aspects of decree 677/01 through the
dictation of General Resolution 401 of 26-03-02 determined in regard to what is of interest here the following: '...The
public acquisition offer... must be subject to the following conditions: ... d) The offered price must
being a fair price, which may be weighted for such determination, among other acceptable criteria, the
as indicated below: d.1) Patrimonial value of the shares, considering for this purpose a state
special accounting for public offering and/or listing withdrawal; d.2) Value of the company assessed according to criteria
of discounted cash flows and/or indicators applicable to comparable companies or businesses; d.3) Value
of the company's liquidation; d.4) Average quotation of the securities during the immediately preceding semester
prior to the withdrawal request agreement, regardless of the number of sessions that have occurred
negotiated; d.5) Price of the consideration offered previously or for the placement of new shares,
in the event that a public offer for acquisition regarding them had been made
actions or issued new shares as appropriate, in the last year, counting from the date of the agreement
of withdrawal request..." (art. 24, cited General Resolution).
4°) The present case corresponds precisely to an action to contest the "equitable" price.
referred to in the previous considering, which is promoted by a minority shareholder of Atanor S.A. in the
terms of the cited art. 32 of decree 677/01, and its reference to art. 30; action that '...can only be
refer to the valuation given to the shares... as stated by the aforementioned regulation, and which can be processed
before the court with jurisdiction over commercial matters corresponding to the domicile of the
controlled company or, at the option of the "minority shareholder" (defined by article 26, section d), cited decree)
and just as it has occurred in this case, before the arbitration tribunal provided for by article 38, whose ruling is appealable
according to what is also provided in the aforementioned art. 30.

..........
The pertinent reflections that precede do not prevent us from observing, however, with specific relation to the case at hand,
what follows:
a) The arbitrators who signed the appealed award qualified their action as a "law arbitration" (p.
876), and this did not provoke grievance from the parties.

b) The case revolves around the determination of a 'fair price', which involves an inquiry into
legal and not just factual, as will be seen later.
...........
Upon concluding the deliberation, the Honorable Judges agree:
(a) Confirm the appealed award in that it declared that neither the one offered by the defendant nor the one sought by
the actor constitutes the 'equitable price' referred to by articles 30 and 32, section d), of decree 677/01,
modifying it with the provision that this price is set at $7.97 per share, plus
a 1% increase.
(b) Taking into account the quality, extent, and nature of the work carried out by the appraiser expert in
fs. 698/732, 808/824 and 829/839; the impact that your work had on the elucidation of the facts
controversial; that the present matter has in article 30 of decree 677/01 a special rule that imposes
consider the applicable scale for the incidents, which shifts the tariff forecasts of the Regulation
Organic Arbitration of the Buenos Aires Stock Exchange; that the amount of the dispute is given by the
the amount for which, ultimately, the claim prospers; and the corresponding remuneration for the assistants
The justice must maintain an appropriate proportion with that which would correspond to the other professionals.
acting in the lawsuit (CSJN, Judgments 256:232; 261:223; 300:70), the fee of accountant C. R. S. S. is set.
—in the person of Brea, Solans and Associates SCEF—in the amount of $28,900 (twenty-eight thousand pesos)
nine hundred
Likewise, considering that the issue resolved in pages 865/66 lacked an amount, and bearing in mind the
success obtained, as well as the complexity and extent of the tasks completed on pages 861/863 by the lawyer and
Attorney of Atanor S.A., Dr. M. R. Q., confirms his fees in the amount of $6,600 (six thousand pesos)
six hundredart. 6, 7°, 9°, 44, y57of thelaw 21,839modified by theLaw 24.432).
Pablo D. Heredia - Juan J. Dieuzeide - Gerardo G. Vassallo.
ARBITRAL AWARDS IN MERCOSUR
Reports of the Permanent Court of Reviewsession(46)
List of those issued to date according to the Official Mercosur Site
Report No. 01/2005: "Prohibition of Importation of Retreaded Tires from Uruguay"
Review Resource Submitted by the Oriental Republic of Uruguay against the Arbitral Award of the Tribunal
Ad hoc Arbitral of October 25, 2005.
Report No. 01/2006: "Prohibition of Importation of Retreaded Tires from Uruguay"
Clarification resource filed by the Republic of Argentina in relation to the Arbitral Award issued by this
December 20, 2005.
Report No. 02/2006: "Impediments to Free Movement resulting from the Cuts in Argentine Territory"
Access Roads to the International Bridges Gral. San Martín and Gral. Artigas" Review Resource
brought by the Argentine Republic against the decision of the Ad hoc Arbitration Tribunal dated June 21
from 2006.
Report No. 01/2007: Controversy between Uruguay and Argentina regarding "Prohibition of importation of
Retreaded tires from Uruguay"—request for a ruling on excess in the
application of compensatory measures—.
Report No. January 2008 Divergence about the compliance Report
No. 1/05, initiated by the Eastern Republic of Uruguay (art. 30, Olivos Protocol).
 Report No. 01/2012: 'Exceptional Urgent Procedure requested by the Republic of Paraguay in
relation to the suspension of its participation in the Common Market of the South (MERCOSUR) and
the incorporation of Venezuela as a Full Member.
Own design scheme

solve
does not solve