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Argentina is a civil law country with a Romanist continental legal system.
The judge renders a decision to declare and interpret the correct applicable law, without regard to the legal basis provided by the parties to the case, under the doctrine of . In this process, the judge is necessarily obliged to support his decisions and provide the basis for the conclusion he has arrived at. Such basis needs to be found either in the law, court decisions, or other additional secondary sources of law, such as customs, scholarly opinions, and general principles of law.
As such, the sentence should be substantiated and supported, and result from a logical derivation from the applicable law and not a dogmatic affirmation based on the judge’s will. It is not uncommon to observe citations of foreign court decisions by Argentine courts as an additional argument of the judge’s own decision.
This process should not be considered only as a simple migration of foreign law. The use of foreign law by Argentina’s courts has been quite frequent, especially in constitutional issues, because Argentina’s National Constitution dating from 1853 was inspired and modeled after the U. This is no longer limited to neighboring nations; 2) In the current stage of human development most problems are not exclusive of one community or country, but common to the rest of the world as well; 3) Scientific, philosophical, political and socioeconomic changes are not incorporated immediately in legislation.
The correlation between social circumstances and legal norms is not always present.
It is frequent to see the delay of the legislation with regard to social changes, either because of a legislator’s reticence or due to interest groups that hinder any change or because the process of legislative reform is slow and complicated. The lack of availability of an explicit legal solution is irrelevant for the judge who is required to solve the conflict and who cannot stop from deciding it. In this extreme situation, the Civil Code provides that the judge should use the general principles of law as a guide. With regard to civil and commercial law, Argentine codes have been inspired by the European continental legal system; therefore, French, Italian, and German court decisions have been cited in these cases. There are numerous decisions from the Supreme Court of Argentina citing foreign law as an argument.
A foreign court decision could be effectively used as a valid legal argument, if, after the comparative analysis process, it may be concluded that: 1) The foreign law to be used has a close similarity to the national law, from the statutory point of view; 2) The facts in the foreign court decision coincide with the facts of the case before the national judge; and 3) The concept of justice in the foreign jurisdiction is similar or equivalent to the one in its own court. Once these three conditions are met, foreign law may become a valid argument supporting the national court’s conclusion. For example, a foreign precedent may not be cited if the facts involving the case are not identical. For example, in a 1994 case, the Supreme Court decided that the principle of sovereign immunity of another nation was not absolute, as was understood until that time, but limited to public acts by the state and not to private activity, holding that no nation may be sued in Argentine courts if the conflict is related to activities of the foreign nation in the country undertaken in its role as sovereign ( The case involved a claim for unpaid social security and labor-related obligations to the employees of the Russian Embassy in Buenos Aires.
Today it is a normal response to an increasingly globalized world, in which very few problems are exclusive to one country, but most likely have already arisen and been solved in other parts of the world.