11/20/2012 09:30:22 AM EST
The New Civil and Commercial Procedure Code in El Salvador
by Richard A. Cevallos
When El Salvador's new Codigo
Procesal Civil y Mercantil (Civil and Commercial Procedure Code, or CCPC)
went into effect on July 1, 2010, it dramatically changed the rules of the
procedural game. These rules changed not only on paper, but in the way both
practitioners and companies face the requirements of the new CCPC, Legislative
Decree # 712 of September 18, 2008. Oral argumentation has become the rule and
few litigator-drafted documents become part of the record. In the most complex
cases, the case is decided on the evidentiary hearing where witnesses are
examined and cross-examined with a limited number of evidentiary rules.
Some new courts were created to begin applying this new code. These courts
include the First through the Fifth Civil and Commercial Courts created in the
capital San Salvador, as well as others created around the country. Existing
civil courts have had to apply the new code to cases that started with the
former code, while also accepting new code cases for their docket.
Increased Use of Hearings and Oral Proceedings
Typically, both plaintiff and defendant need only to file twice at most with
the court: the complaint, the response, any counterclaim, and any response to
the counterclaim (CCPC Articles 255, 284, 285, and 286). After these filings,
the court will call for a preparatory or pretrial hearing. It has been
generally agreed that this hearing is for "cleaning" the file
regarding the evidence that has been offered by both parties and the issues
that will be debated in trial (CCPC Article 292). At the end of the preparatory
hearing, the court will schedule the evidentiary hearing. This is where all the
evidence will be analyzed (except for documentary evidence), which must have
been be filed with the complaint or reply (CCPC Article 335).
As a result of oral hearings, the length of time for cases has been shortened.
Based on personal experience before the effective date of the CCPC, a case
averaged between 12 and 18 months. Under the new code, a case might take only
as six months. Common or ordinary proceedings will only have the preparatory
and evidentiary hearings. Abbreviated proceedings will have only an evidentiary
hearing, as established by CCPC Articles 239, 402, 411, 425, and 430.
Abbreviated hearings are intended to determine quantum in cases relating to
damages, once a favorable decision has been obtained in an ordinary proceeding
under CCPC Article 241.
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Ricardo A. Cevallos, is
a senior litigation and arbitration partner with Consortium Centro America
Abogados in El Salvador, practicing contract and commercial law. Mr. Cevallos
is also a Professor of Ethics at Escuela Superior de Economia y Negocios and
teaches Contracts and ADR at Universidad Centro Americana, and he writes on
contracts, litigation, alternative dispute resolution, and local arbitration.
Mr. Cevallos is a listed arbitrator in the trade agreements between Central
America with Mexico and Chile, in 2005 was named by Latin Lawyer
magazine as one of the 40 best attorneys under the age of 40 in Central