How do legal frameworks shape class actions in Latin America?

Research
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Class Action Lawsuits in Latin America: An Objective Overview

This post provides an objective overview of the legal frameworks for class action lawsuits across select Latin American jurisdictions—Argentina, Brazil, Colombia, Mexico, and Panama. It examines the legal basis, scope, and procedural requirements for class actions in these countries and highlights similarities and differences in their approaches.

Caveat: This whitepaper is for academic purposes only and does not reflect official research projects. It is intended for informational purposes only. For legal advice specific to any jurisdiction, please consult a qualified attorney.

Introduction

Class action lawsuits allow a group of affected individuals to seek redress collectively rather than through individual litigation. In Latin America, the availability and structure of these lawsuits vary significantly from one jurisdiction to another. This paper reviews the legal mechanisms in place for class actions in Argentina, Brazil, Colombia, Mexico, and Panama, focusing on:

  • Types of Rights Protected: Collective, diffuse, and homogeneous individual rights.
  • Procedural Frameworks: Governing the initiation and conduct of class actions.
  • Statutory and Case-Law Developments: Defining their scope and applicability.

1. Argentina

In Argentina, class actions are available for claims involving collective rights or matters of substantial public interest—particularly in areas such as environmental protection, consumer protection, and antitrust. Under Argentine law, these lawsuits enforce collective or diffuse rights that protect the indivisible interests of an undetermined number of people. The Argentine Supreme Court’s Ruling No. 12/2016 outlines the admissibility requirements and distinguishes between:

  • Collective Assets Claims:

    • Criteria: Plaintiffs must demonstrate a collective interest requiring protection and that the claim is centered on the collective nature of the right.

  • Individual Homogeneous Claims:

    • Criteria: Arising from a common factual basis affecting multiple individuals similarly, where plaintiffs must show a common basis for the harm and that individual litigation would impair access to justice.

Reference Section: Argentina – Sources [1], [2]

2. Brazil

Brazil’s framework is grounded in the Brazilian Class Action Law and related statutes such as the Brazilian Consumers Defense Code. Class actions in Brazil protect three broad categories of rights:

  1. Diffuse Rights (direitos difusos):

    • Definition: Indivisible rights held by indeterminate groups connected by factual circumstances (e.g., citizens affected by pollution).

  2. Strictly Collective Rights (direito coletivo strictu sensu):

    • Definition: Indivisible rights belonging to a determinate group linked by a legal relationship (e.g., employees affected by an internal policy).

  3. Homogeneous Individual Rights (direito individual homogêneo):

    • Definition: Divisible rights stemming from a common origin (e.g., damages to individual fishermen due to an oil spill).

Brazilian law does not require formal class certification. Instead, government bodies, public prosecutors, unions, and specific nonprofits have presumptive standing to file these actions. Procedurally, Brazilian class actions follow general civil procedures with modifications such as fee exemptions and broader res judicata effects.

Reference Section: Brazil – Sources [3], [4]

3. Colombia

Colombia provides for class actions within its civil litigation system under Law 472 of 1998. In Colombia:

  • Eligibility: A class action can be filed when at least 20 individuals are affected by the exact cause.
  • Purpose: Focused on repairing individual damages from a common cause, as opposed to popular actions that aim to protect collective rights.
  • Representation: A single representative can file on behalf of the group, and the ruling will be binding on all class members unless they opt-out.

Reference Section: Colombia – Sources [5], [6]

4. Mexico

In Mexico, class actions were formally introduced in 2011 following an amendment to the Constitution. They are available for a limited range of claims:

  • Scope: Consumer protection, environmental issues, and antitrust matters.
  • Regulation: Governed by the Federal Code of Civil Procedure (soon to be replaced by the National Code of Civil and Family Procedure), which provides a narrow statutory basis.
  • Procedure: Emphasizes prompt adjudication with short response and discovery periods.

Reference Section: Mexico – Sources [7], [8]

5. Panama

Panama’s class action mechanism, known as the “proceso colectivo de clase,” is regulated under Article 129 and subsequent provisions of Law No. 45 of 2007. Key features include:

  • Primary Focus: Consumer protection and antitrust claims.
  • Criteria: A class action may be initiated when the group is too numerous for individual actions, when common questions of fact or law exist, or when individual lawsuits would result in inconsistent judgments.
  • Mechanism: Designed to benefit the entire group through uniform remedies.

Reference Section: Panama – Sources [9], [10]

Conclusion

The legal mechanisms for class action lawsuits in Latin America exhibit significant diversity in scope and procedure:

  • Argentina: Permits class actions for both collective rights and individual claims under a unified framework, with judicial distinctions based on the nature of the claim.
  • Brazil Provides a flexible framework covering various types of collective rights without a formal certification requirement.
  • Colombia: Focuses on group actions to repair individual damages from a common cause.
  • Mexico: It maintains a narrow, statute-based approach primarily for consumer, environmental, and antitrust claims.
  • Panama: It utilizes a mechanism designed for consumer and antitrust matters that emphasizes group representation and uniform remedies.

These variations underscore the need for jurisdiction-specific legal strategies when considering class action litigation in Latin America.

References

Argentina
1.Argentine Supreme Court. Retrieved from: https://www.csjn.gov.ar/
2.Argentine Ministry of Justice. Retrieved from: https://www.argentina.gob.ar/justicia

Brazil
3. Class Actions Worldview Guide: Brazil. JDSupra. Retrieved from: https://www.jdsupra.com/post/fileServer.aspx?fName=1a93ea2f-7e0c-4676-87ac-ec6ae79a62fd.pdf
4. Legal 500 – Brazil Cartels & Competition. Retrieved from: https://www.legal500.com/guides/chapter/brazil-cartels/

Colombia
5. Class Action Procedure in Colombia – Lexology. Retrieved from: https://www.lexology.com/library/detail.aspx?g=10424703-ca83-44d2-a63d-e15b785a9370
6. Colombia Country Overview – Asset Servicing Times. Retrieved from: https://www.assetservicingtimes.com/countryfocus/country.php?country_id=109

Mexico
7. The Essentials of Class Actions in Mexico – Lexology. Retrieved from: https://www.lexology.com/library/detail.aspx?g=3b526247-52e8-4433-94c0-a9a4effe4fd9
8. Piecing Together the Puzzle of Mexican Class Actions – Fedsoc Commentary. Retrieved from: https://fedsoc.org/commentary/publications/piecing-together-the-puzzle-of-mexican-class-actions

Panama
9. Alfredo Guerra Thesis, “El proceso colectivo de clase en la Ley 45 de 2007”. Retrieved from: http://up-rid.up.ac.pa/1595/1/alfredo%20guerra.pdf
10. Blog Post – “Proceso Colectivo de Clase en Panamá”. Retrieved from: https://barsallocarlos.blogspot.com/2016/07/proceso-colectivo-de-clase-panama.html?view=flipcard