- 1.Outline the court system in your jurisdiction.
The Bolivian court system is basically unitary, with a few exceptions like the agricultural and indigenous jurisdictions. The “ordinary” jurisdiction includes civil, commercial, criminal and labour matters, among others. The hierarchy is as follows: Supreme Court, district court (there is one judicial district for every state, with seat in every capital city), juez (judge) de partido and juez (judge) de instrucción. The first stage of proceedings is executed before a judge (the type of judge will vary depending on subject, location or quantity, or both), who will pronounce first-instance judgment.
Criminal claims are heard by a jury presided by a sentence judge. The proceedings regarding issues of public matter are led by the competent district attorney, while the interested party must conduct proceedings in private matters. Criminal claims regarding private matters are not heard by a jury, but by a sentence judge.
Criminal or civil first-instance sentences may be appealed before the district court, which will pronounce sentence in second instance. The court of last instance is the Supreme Court.
- 2.What remedies are available to a party that is in a dispute with a foreign entity? Do the laws provide foreign entities the same rights afforded to local entities? Are there laws requiring foreign entities to post a bond or other security before they can defend a suit?
According to Bolivian law, certain procedure acts require that litigants post a bond. There is no distinction between local and foreign entities. In order to implement precautionary measures such as an attachment, (article 173 of the Civil Procedure Code), a counter guaranty is requested.
Foreign entities have the same rights as local entities, they may admit liability, answer or counterclaim any claim presented against them in Bolivia.
In order to notify a party with a civil claim outside the Bolivian territory, a local judge must admit the claim and then by the application of international agreements and their pursuant regulations, a person outside Bolivia could be served. The judge must require the notification by means of a rogatory letter through the Ministry of Foreign Affairs, which will use diplomatic channels. This procedure may take months, depending on the country of residence of the foreign party.
- 3.What is the most common type of litigation encountered in your jurisdiction by foreign entities (for example, claims for breach of contract, employment or some other issues)?
Foreign entities mostly face labour-related disputes. Moreover, debt recovery against Bolivian companies due to default or breach of contract is also common practice
- 4.How frequently do parties pursue criminal actions (eg, querellas) in the context of commercial disputes? May criminal trial evidence be adduced in follow-on civil litigation? May civil cases be brought concurrently or after criminal litigation?
Criminal actions are not so frequent in the context of commercial disputes, yet they appear with some regularity in labour-related actions. Yes, criminal trial evidence can be adduced in the civil litigation and civil litigation may be initiated after the ruling in the criminal case, but not concurrently. Please note that in Bolivia there is no prison punishment for debt matters, debt collection cases are to be resolved by the civil courts.
- 5.Is there a right to a trial by jury in a commercial dispute?
No, commercial disputes are always resolved before a judge or arbitration panel; only criminal proceedings are heard by a jury in Bolivia.
- 6.Do courts require or strongly encourage mediation before or during a litigation proceeding?
During proceedings both lower courts and district courts encourage the parties to carry out conciliation more than mediation.
Upon filing of the claim, the presiding judge must call a conciliatory meeting between the parties before the proceedings formally take place. Conciliation between the parties can occur at any stage during the process.
- 7.Will choice of law and choice of forum provisions in a contract be enforceable recognised?
Parties may agree on the applicable law but the Bolivian system is based on the “locus regit actum” principle, where local law applies to commercial acts conducted in Bolivia. Hence, any choice of law provision contrary to this principle will not be illegal but will render the contract unenforceable.
- 8.Does your jurisdiction have specific arbitration law? Are arbitration awards enforced by the courts? May courts enjoin or prohibit arbitration proceedings in matters that are also pending in a court proceeding?
Yes, the Conciliation and Arbitration Law 1770. When an award cannot be executed, the parties to the arbitration process can request a court to compel its execution.
- 9.Do the courts recognise attorney-client privilege? If so, is the privilege applicable to in-house lawyers?
Yes Bolivian law recognises attorney-client privilege and respects it. Lawyers are granted a privilege of professional secrecy under article 24 of Decree Law 16793. The privilege is also applicable to in-house lawyers.
- 10.Are legal proceedings public? In other words, can the general public observe hearings and review the filings of the parties?
Yes, proceedings are open to the general public, and thus they may be present during hearings. Case files are also public, however, to avoid the spread of private information; courts allow access to the case files only to the parties involved or to anyone with a legitimate interest in the matter.
- 11.May a defendant join other potentially liable parties into the existing lawsuit?
No, the defendant may not include potentially liable parties to the lawsuit. The defendant can include third parties, however, only to act as a witness or expert witness, but not as parties to the lawsuit. The defendant can only bring a counter claim against the plaintiff. On the other hand, the plaintiff can include potentially liable third parties; however, these can only be included prior to the defendant’s response to the claim.
- 12.How may a party enforce a foreign judgment?
Foreign rulings may be enforced in Bolivia through the application of international treaties or by reciprocity. When none of the previously mentioned criteria is applicable, the ruling may be enforced when:
- it is related to assets transported to Bolivia during or after the trial;
- the losing party is domiciled in Bolivia and has been legally notified;
- the obligation stipulated in the ruling is legally binding in Bolivia;
- it does not violate Bolivian legislation;
- it can be lawfully executed according to the originating country’s laws; and
- there is no previous or simultaneous ruling from a Bolivian judicial authority about the same subject.
The following procedure must be undertaken in order to enforce a foreign judgment in Bolivia: The interested party must present a solicitation before the Bolivian Supreme Court, thereby attached with the pursuant ruling and award duly legalised in the country of origin. When the aforementioned documents are not in Spanish, these shall be translated by an authorised translator.
Once the solicitation is presented, the Supreme Court will serve the counterparty, which will have a 10-day period to present any document or objection to the ruling. The Supreme Court may open a discovery period if found necessary. If the solicitation is admitted, the Supreme Court will assign the pertinent judicial authority to execute the foreign judgment.
- 13.How much time does a party have to answer a complaint? Can a party extend this time?
A complaint must be answered within 15 days of notification (ordinary process). This period can be extended when the counterparty is located in the country but outside the competent court’s jurisdiction by one day for every 200km.
If the counterparty does not have access to air, train or highway transportation, the deadline will be extended by one day for every 60km. With regards to a collection process, the parties have five days to present exception.
- 14.How long does it take to obtain a first-instance judgment in a typical commercial litigation case?
The average duration of a commercial litigation case up to first-instance judgment is of 12 to 24 months.
- 15.Is a party required to submit all facts, arguments and supporting evidence with its initial pleading?
Only documented evidence must be presented with the initial pleadings, except new documents and those of later discovery, attaching a sworn declaration to that effect. Experts, witnesses and provoked confession will take place before the judge in the discovery period.
- 16.Does litigation provide a process for investigating claims or right to discovery of evidence prior to trial?
Bolivian legislation foresees “preliminary measures” that may be applied if necessary. Typically, these include the recognition of signatures and initials in case the documents necessary for trial were not signed before a public notary.
Besides recognition of signatures and initials the parties may require:
- a sworn statement of the potential opposing party regarding any issues about his or her legal status that could have relevance in the proceedings;
- judicial inspection of the non-movable asset subject of the potential claim; and
- exhibition of the movable asset subject of the potential claim.
- 17.Does litigation provide a process to subpoena or obtain documents or testimony from third parties?
Judges may order the presentation of private or public documents as well as testimonies from any private or public figures, the prosecution make such request ex-oficio and even the interested party can request the judge order the documents be presented.
- 18.Does the judge or opposing counsel examine witnesses?
Witnesses may be examined by the judge and both parties. The pursuant questions have to be presented in advance in a sealed envelope, which will be read by the judge at the hearing. The judge may disregard irrelevant or offensive questions.
- 19.How may evidence be challenged? Are there specific rules of evidence?
Yes. In civil and employment matters, evidence must be offered within the first five days of the term established for discovery. Evidence is produced during the term and is subject to certain rules.
A19: Bolivian legislation foresees six types of evidences for civil and commercial procedures, them being: documented evidence, witness, expert witness, confession, judicial inspection and legal or judicial presumptions.
- 20.Do courts typically allow hearings at or before a trial? At what state may parties present expert witness testimony?
Expert witness testimonies are heard during the discovery period. Civil and commercial suits are mostly written, hearings take place when witnesses or experts are heard, when spontaneous or provoked confessions take place or a judicial inspection is performed.
- 21.What must be demonstrated to collect a debt based on a written instrument?
The document must be enforceable per applicable law and the debtor must be in evident non-compliance.
- 22.What remedies are available in your jurisdiction to a minority shareholder of a corporation in a dispute with the corporation or the majority shareholders?
Per the Code of Commerce, minority shareholders with at least 20 per cent of interest may elect one third of the board of directors and may also call an extraordinary shareholders’ meeting at any time.
However, there are no specific remedies foreseen in Bolivian legislation for minority shareholders involved in a dispute.
- 23.What rights are available in the courts for someone holding a maritime lien interest in a vessel?
- 24.What rights are available for a party holding a security interest in real property and personal property? Are there expedited proceedings to allow the recovery of property serving as security for debt obligations?
There are no expedited proceedings, however, the parties may agree between themselves or with the judge’s approval to shorten term periods or expedite certain procedures.
A security interest holder may enforce payment through two types of abbreviated proceedings, “proceso ejecutivo” and “proceso coactivo”, whereby the origin of the obligation is not questioned, only the security’s validity. The latter proceeding is the most appropriate for the enforcement of securities, but this option must be previously agreed upon in the corresponding contract. Secured assets must be enforced by way of a public bidding system; priority is established by date of registration.
- 25.Describe the types of employment disputes that frequently result in litigation.
Litigation related to employment disputes are usually a result of disputes in the amount of the benefits owed to the employee after termination. Unjustified termination and non-recognition of extra time are also common labour disputes.
In the event that the employee refutes the causes for termination (ie, under Bolivian law employees may only be terminated by specific causes contained in the General Labour Law) they may require reinstatement of their job, which will entail an administrative process before the Labour Ministry. Should the employee obtain a favourable result, the past employer must reinstate him in the company and pay salary retroactively as of the date of termination.
- 26.Does your jurisdiction allow class actions or some form of collective litigation proceeding?
Class actions are not specifically regulated but more than one plaintiff may ultimately benefit from a claim (terceria). There are no restrictions with regards to an attorney representing various defendants or plaintiffs in one or more litigation proceedings.
- 27.Do government-owned or controlled entities enjoy any privilege when they are engaged in commercial activity and involved in a commercial or administrative litigation?
Government-owned entities do not enjoy any explicit privileges over other commercial entities. However, any sentence that rules against the state must be elevated to the ruling judge’s superior, even if no appeal is presented. Some government entities are exempt from certain judicial fees.
- 28.Is injunctive or other relief available on an emergency basis?
Preliminary injunction may be ordered when the base of the lawsuit would find itself compromised by the performance or non-performance of certain activities.
- 29.Is injunctive relief or other relief available as part of a final award? If so, in what types of cases do courts usually provide injunctive relief?
Not necessarily as a final award. These measures can be implemented throughout the lawsuit.
Yes, Bolivian legislation recognises injunctive relief rulings, whereby the losing party must do or refrain from doing a determined activity. In commercial matters, in Bolivian jurisprudence injunctive relief is usually found in rulings where the losing party is ordered to comply with a contract. The judge may require a guarantee from the party that is instructed to act.
- 30.What are the typical court fees and costs required to file a civil lawsuit?
The fee for a civil claim is 0.004 per cent of the claimed amount. The fees in a lawsuit will vary depending on the number of memos and judicial appeals filed, in estimation, a process may cost between US$70 and US$250.
However, there are more complex cases that would require an expert witness, whereby, the offering party must bear with the cost.
- 31.Is a bond required for non-residence? What is the amount of the bond?
- 32.What damages are available? How are damages quantified? Are punitive damages available?
Bolivian legislation foresees direct damages that include losses sustained damages and profits deprived. Damages are usually quantified by means of an expert opinion, while damages for loss of profit must be proven (eg, market forecasts, previous years’ financial statements, contracts, etc). Punitive damages are not regulated.
- 33.Is the losing party liable for attorneys’ fees and costs? If so, how are attorneys’ fees and costs determined and proved?
Yes, the winning party may demand reimbursement of attorney fees. Commonly, the attorney fee is 12 per cent of the claim.
- 34.Will courts enforce a liquidated damages provision in a contract?
Yes, liquidated damages provisions are enforced in judicial rulings as long as the damage provision does not exceed the main obligation. The liquidated damage will be diminished when the main obligation has been partially paid, or when it’s considered excessive.
- 35.What is the appeal process against trial court decisions?
First-instance judgment may be appealed within 10 days of its notification. The opposing party has the same deadline to answer the appeal after notification. No new evidence can be filed in the appeal, except when the parties require by common agreement a discovery period; evidence in the first-instance was not sustained due to circumstances not attributable to the interested party; new evidence is discovered; and when a party intends to discredit a document that was impossible to do so in the first-instance due to the counterparty’s charge or to irresistible force. Sentence in the second-instance should be pronounced within 30 days as of the file’s delivery to the judge; nonetheless the ruling usually takes about six months.
- 36.How frequently do appellate courts reverse trial court decisions?
It is not uncommon that first-judgment rulings are modified or revoked, especially in employee related disputes.
- 37.May the courts entertain challenges to administrative decisions made by federal or local governments? If so, how frequently do courts reverse administrative decisions in favour of a private party?
Once all administrative instances are exhausted, the private party can appeal the administrative ruling before the Supreme Court, the procedure usually takes around 18 months.
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