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Civil Litigation refers to the procedure for resolving private and public disputes between two or more parties entangled in legal quarrels relating to civil matters.

What is Civil Litigation?

Usually Civil litigation emerges when two entities or individuals have a disagreement over an issue which has serious complications. Commonly at that stage both parties to the action will then acquire legal advice about the problems involved. At that stage formal documentation is exchanged between the council’s of the parties involved and pleadings commence.

When starting or running a business one needs to consider potential legal issues, conflicts and problems that can affect the company and its employees. Suppliers, competitors and even regulatory authorities can be the trigger for unexpected Civil Litigation proceedings. Entrepreneurs should have access to legal council from a trusted solicitors practice, and should involve their solicitor when taking key decisions as it is easy to neglect details which can later lead to having to pay out large amounts of money trying to resolve the issues. For that reason, legal knowledge is important especially if the organisation is considering options such as arbitration.

This is increasingly more important for the Peruvian working environment. As Peru’s economy grows, and the country develops, its market becomes increasingly more sophisticated. With this constant progress, reform is inevitable; and both, lawmakers and consumers alike, have been making an effort to look beyond the existing solutions to provide access to justice to those individuals who have been victim to unjust litigation practices.

Solicitors such as Marroquín & Merino Abogados can help businesses resolve their Civil Litigation matters and reach the right settlement for any given case. An experienced legal practice will be able to offer guidance on issues that should be taking into consideration prior to commencing court proceedings and will give clear advice about whether a case is worth pursuing or if it is more appropriate to mediate.

Why do I need to know?

In today’s fast moving business climate, it is virtually impossible to commence, grow and sustain a business of any size without the need to know about the laws that can affect a business. Only with adequate knowledge of how the existing Peruvian Civil Litigation laws and regulations operate commerce and the individuals within it, can clients hope to achieve the best results within their business endeavours.

Disputes in the area of Civil Litigation can often be settled in or out of court depending on the situation and what the requirements are of the parties involved. This sort of law can involve disputes regarding property issues, work-related employment matters, professional misconduct and even vast multi-million disagreements concerning advertisements, intellectual property and multi-party class actions. Then crucial information is exchanged in Civil Litigation proceedings, which is all about swapping data between the two parties based on the evidence or proof each of the entities has in their possession. Should one of the parties involved come up with a workable solution, it is possible to do so if the other side agrees with the terms of the resolution. But, if disagreement continues the next logical step would be a pre-trial first, followed by a trial and a final judgment on the issue shortly after that.

This is an extremely time consuming process, at times a litigious trial can go on for years, and it is virtually impossible to keep costs down if it goes all the way to the courts. So, the owner of a business should be prepared for all the applicable costs if they choose to fight a trial for a longer time period. It is because of this that companies should seek out legal council to offer practical every day Civil Litigation advice on what the best course of action would be for any given situation. If a party is confident that they would win a case and have the required financial backing, they could choose to fight a court case to the very end.

It is therefore essential for those conducting business in Peru to specifically approach a law firm with Civil Litigation expertise, which will be able to offer general advice and legal counsel on how to avoid drawn out litigation. A firm with years of expertise will also be able to recommend how to proceed in a matter, and explain to a client whether it is better to resolve the matter amicably rather than through litigation.

How does it work?

For the most part clients are best served by out of court settlements as it saves cost and time for all parties involved. Alternatives to Civil Litigation are explored within alternative dispute resolution and will often include through mediation, arbitration, negotiation, conflict resolution and conciliation.

Sometimes it will be a matter of simple economics that will define if a civil litigation dispute is worth suing for. A good legal practice will be able to offer advice and review how worthwhile a case is and if it should be pursued.

In Latin America law firms with years of experience such as Peruvian law practice Marroquín & Merino Abogados in Lima is fully aware of regulatory and legal changes and how these can affect a company and individuals.

The civil codes in Peru and many other Latin American jurisdictions were plainly not capable of dealing with situations where there were vast numbers of plaintiffs and defendants in one Civil Litigation claim. Many believe the civil system can be intrinsically a one-to-one dispute resolution apparatus.
As such, group action claims can take a very long time to be resolved in the court system, increasing legal costs, interest on any damages awarded and long term exposure for specific policies.

Legislation amendments

In November last year a Bill for International Litigation was put before the Congress of Peru. It is a simplified draft based on the Latin American Model Bill for International Litigation of 2004 and covers Civil litigation aspects including mass claims, service of process, evidence, damages and compensation, settlements, appeals and lis pendens or “suits pending.”

The ten articles within the new Peruvian Civil Litigation draft for international guidance are particularly in aid of serving as a tool to Peruvian plaintiffs in Peruvian cross border conflicts and will simplify Civil Litigation in Peru. The new bill seems designed to provide a realistic tool to Peruvians who wish to raise an international trial. Most specifically the bill is split in various areas that break down the rules that will change in international Civil Litigation proceedings.

Article 1 ensures clients save time and money. This is done by accepting summons in any form admitted in the country in which the documents are to be served. For instance a notice in the US could be undertaken by certified mail, or through the European territory in any form under Regulation 1393/2007. The traditional method of notification by appealing to the Supreme Court, Ministry of Foreign Affairs and the Consulate office in the individual jurisdictions is a much more sluggish and a pricier process.

When it comes to foreign documentary evidence, Article 2 declares the admissibility of evidence already produced in foreign lawsuits with three modern and efficient standards. It clarifies however that these materials will nonetheless be scrutinised and reconsidered by the local judge in Peru “according to the principles of sound criticism.” At no stage does this endanger the opponents’ right to challenge as the adversary is free to attack such a test as he sees fit. More importantly however, the new method is a more practical approach, because according to Article 2 only the relevant part of the foreign document will be in need of a translation. This significantly aids the testing of foreign documentation, makes the procedure more cost effective and adds vigour to that now rarely seen in American procedures.

Article 3 in the new Bill for International Litigation relates to damages. Compensation will therefore be calculated by taking into account “parameters and significant amounts of relevant foreign law.” Critics feel, however, that this Article could be improved further by imposing the court’s obligation to employ a compensation structure that is more sympathetic to the victim. Yet, this method seems superior because in the long term it could help thwart the recurrence of unlawful acts, while simultaneously can transfer the social cost of unlawful acts to the guilty party, rather than make them fall on society at large, which also seems a worthy goal to be retained.

Taking the appeal route as a delaying tactic is weighed down by the Bill’s Article 4. Again, such a measure ensures that an international trial will take place speedily by removing the bulk of some appeals which are commenced as a ploy to cause long delays.

With the introduction of Article 5 the possibility of a plaintiff and defendant trying to reach an agreement without the former’s solicitor being informed is eliminated. The rationale behind the rule is to protect both the client from an inconvenient settlement and the counsellor, who has invested a significant amount of time and money during the civil procedure. This rule is usually incorporated in the code of conduct within many other legal jurisdictions.

Article 6 serves merely as a clarification of an already existing guideline regarding jurisdiction. In simple terms Article 6 states that in litigation matters concerning concurrent international proceedings the court in which the lawsuit was first filed will be assumed to be the one to keep the jurisdiction. This means that the legal status quo is internationally exactly the same as in domestic cases as the first court that hears the case will prevail.

The introduction of Article 7 within the new Bill protects the interest of Peruvians in an independent civil litigation so that no unjustifiable impairment is committed abroad. It has been put in place to guard Peruvians when no other remedy is available.

Moreover, the Bill in Article 8 entails a ten-year limitation period which could possibly be extended to fifteen years should the debtor act in bad faith to hinder the rights of opponent. International causes often cannot quickly determine the identity of the defendant. This is in aid of promoting the viability of the civil action and is reasonable given that the direction is itself an exception to the common rules and it is advantageous to clients to decide Civil Litigation matters on merit.

Where there is a large number of defendants and applicants, consolidation is provided for in Article 9 of the draft Bill. It is left up to the judge to take “practical steps for the case to move quickly within the limits of due process.” Draft Bill Article 10 states that this new Bill will be valid for procedural steps that have not yet begun and as well as trials that have already commenced. It will apply with immediate effect.

In summary, the newly introduced draft bill on international Civil Litigation matters is positive news for the country’s legal system as it helps to simplify Civil Litigation procedures. It will moreover aid in eliminating international conflict that in the past were caused by lack of clarity and contradictory rules. On the whole this Bill will make it straightforward for Peruvians to commence international prosecutions. Rationalising and modernising the rules for international Civil Litigation will moreover significantly reduce the cost of these trials. Likewise, enacting these new rules and standards would be highly beneficial to individuals and legal entities within Peru as they will help defend their Civil Litigation claims by taking into account the foreign element of an action even when the matter is being dealt with within Peru.

Solicitors such as Marroquín & Merino Abogados welcome the reform of laws that will help abridge and shed light on international Civil Litigation. It is advisable to seek advice regarding any amendments in this field as solicitors Such as Marroquín & Merino Abogados will be able to offer the expertise required to apply the law to any given Civil Litigation.

Industry experts

Marroquín & Merino Abogados had the chance to actively contribute to some of the most significant disputes that have taken place in Peru in recent times. The group’s litigation and dispute resolution practice is celebrated for its capability and skill in proficiently managing conflicts by continuously searching for successful solutions on behalf of its clientele. The members of the team have wide-ranging skill in litigation and arbitration, including those concerning key regulatory disputes within the food and drinks, telecoms and many other industries. The firm has been providing high quality legal services for over 50 years to Fortune 500 companies in Peru and Latin America. Its dual-trained solicitors understand common law principles thoroughly and are able to merge them swiftly and efficiently with Peruvian legal concepts. The group’s creativity and flair in offering advice to clientele allows the firm to provide counsel in matter relating to contractual, corporate, commercial and labour disputes. Marroquín & Merino Abogados’ expertise extends also to international disputes for high profile clients.

The group has proven time and again that it has extensive experience at both national and international levels in designing valuable, all-inclusive legal strategies. The methods used by the team at Marroquín & Merino Abogados incorporate a cross-functional approach, which take into account economic analysis and then centre on the cost-benefit ratio of the different aspects each case involves.

Marroquín & Merino Abogados is one step ahead of its rivals in comprehending the legal process and the technicalities of how a certain market works and what type of expertise and knowledge is required to respond efficiently to those topics.

Its arbitration and litigation team has developed a rock-solid standing based not only on the importance of the previous cases it has handled, but also on the results it attained. The firm has acted for its clientele on cases across-the-board, including tort, commercial and business litigation, property rights, and administrative litigation. Successful

The firm prides itself in giving clients access to solicitors who are continually training to stay at the top of legal developments regarding the most recent legal changes on Peru’s procedural laws. The proactive litigation and dispute resolution group at Marroquín & Merino Abogados consists of a team of professional and resourceful attorneys. They represent clients regularly before the Justice Department for the resolution of civil, constitutional, contentious, corporate and commercial conflicts, including the representation before the Constitutional Court and Courts of Arbitration. Solicitors at the firm offer clientele vast knowledge on substantive and procedural law which helps achieve the best possible litigation results to ultimately get to the bottom of conflicts in an affable way to steer clear of judicial actions or arbitrations procedures wherever feasible.

Confidentiality and professionalism is of paramount importance to solicitors within Marroquín & Merino Abogados. The team is widely reputed for providing excellence in all matters regarding Civil Litigation as well as resolving complex and sophisticated business disputes with the means of mediation, arbitration or any other type of alternative dispute resolution.

Case study

In one of the most intense civil litigation battles in the courts of New York and Lima, Peru, the US federal District Court after nine years found that Compañía Embotelladora del Pacífico S.A’s lawsuit against Pepsi Cola Company was unjustified. The decision is an extremely significant precedent in Peruvian law and was saluted as a positive step toward legal stability.

Pepsi was represented by Víctor Marroquín, Domingo García Belaúnde, Alejandro Alfageme Rodríguez Larraín and Guillermo Castañeda Echegaray of Marroquín & Merino Abogados in Lima. The high profile case started when the Peruvian City of Los Olivos fined the Peruvian subsidiary of PepsiCo, Pepsi Cola Panamericana, $525m for alleged illegal advertising. According to the City, Pepsi violated its rules when it placed advertisements of its beverages on the exterior walls of over 400 stores located within its boundaries.

Pepsi then followed Peruvian administrative procedure but the City felt the fine was warranted. Not long after Pepsi filed suit with the civil courts in the north of Lima. The purpose was to request an injunction which would stop the summary execution procedure, and to receive a ruling that would declare the fines void due to failing to meet the burden of proof. But when the 6th Civil Court of North Lima eventually agreed to void the fines and ordered the City of Los Olivos to “abstain from initiating coercive collection proceedings” against Pepsi, thus protecting Pepsi from attachment orders against its property.

But the case did not close there as the solicitors for the City filed an appeal with the Superior Court of Justice of North Lima claiming among others that the trial court had failed to take into deliberation the sworn statements submitted by the store owners and did not acknowledge the powers and faculties of local governments.

Only five months later the Supreme Court also ruled that the fines imposed by the City of Los Olivos were to be declared null and void. The ruling was particularly important as it showed that Peruvian Courts have the right and authority to decide and control whether any action carried out by a local government is legal or not. Marroquín & Merino Abogados helped bring about a decision that means any company or individual feeling offended by an action conducted by a local Peruvian government can look to judicial protection from the Peruvian Civil Courts.