BLP Newflash: Important legislation changes in El Salvador / January 2018

 

El Salvador

– January 2018 –

ADMINISTRATIVE LAW

Law of the Contentious-Administrative Jurisdiction

The Legislative Assembly enacted the Law of the Contentious-Administrative Jurisdiction (Ley de la Jurisdicción Contencioso Administrativa in Spanish “LJCA”) whereby the regime for legal claims against the Public Administration was significantly reformed. The LJCA is an improvement on the field due to the creation of new and specialized courts, which makes legal proceedings more expedite, and the incorporation of new matters that can be submitted before these courts. Some of the most important aspects of the LJCA are the following:

  1. Lawsuits: claims related to the following matters can be submitted before the Administrative Jurisdiction: (i) administrative acts (decisions taken by governmental entities); (ii) administrative contracts; (iii) inoperativeness of the public administration; (iv) abusive measures taken by any entity of the Public Administration; (v) actions or omissions of concessionaries when such actions or omissions are related to activities of the Public Administration; and (vi) the liability of public workers and the Public Administration.
  2. Decentralization: the LJCA delegates the jurisdiction over disputes against the Public Administration to the Courts, the Appellate Courts of the contentious-administrative jurisdiction, and the Chamber of the Contentious-Administrative of the Supreme Court of Justice.
  3. Arbitral Awards: The Appellate Courts of the Administrative Jurisdiction have jurisdiction over appeals against arbitral awards where it is involved an entity of the Public Administration.
  4. Statute of limitation: The statute of limitation to submit a claim is sixty (60) days upon the situations indicated in the LJCA (i.e. after the Public Administration has ruled on a claim).
  5. Proceeding: The LJCA establishes different procedures which vary depending on the nature of the claim, such as: the ordinary procedure; the summary procedure and special procedures.
  6. Hearing: Hearings are incorporated into the procedures. As a result, these are no longer entirely in writing.
  7. The LJCA repeals the Law of the Contentious-Administrative Jurisdiction, issued in the Legislative Decree number 81 and published in the Official Gazette number 236, on December 19, 1978.

(Official Gazette number 209. Published on November 9, 2017. Entry into force: on January 31, 2018)

Transitory Rules of the Administrative Procedure and the Regime of the Public Administration

It was published in the Official Gazette the Transitory Rules of the Administrative Procedure and the Regime of the Public Administration, in which several rules related with the regime of the Public Administration, to its acts and to the administrative procedures were established, which regulates some of the gaps that exist in the legislation. Some of the most important aspect of these transitory rules are the following

  1. Illegalities: The reasons for which an administrative act may be declared illegal are listed.
  2. Exhaustion of the Administrative Procedure: The administrative procedures will be deemed as exhausted upon the resolution that ends such procedure or upon the resolution that resolves any administrative appellate claim.
  3. Revoking: The Public Administration may revoke its own resolutions base upon legit reasons. When someone obtains any advantage or benefit from a resolution issued by the Public Administration, such resolution may only be lifted upon the beneficiary´s request.
  4. Administrative Procedure: Administrative procedures must be carried out within a maximum period of ninety (90) days. If the Public Administration must decide over a request that does not entail any formality different than a written petition, the procedure must be carried out within a maximum period of fifteen (15) days.
  5. Administrative Silence: Any request or petition filed before the Public Administration may be deemed as denied, if the period established in the Transitory Rules to answer such requests expires without any response of the incumbent authority.

 (Official Gazette number 209. Published on November 9, 2017. Entry into force: on January 31, 2018)

ENVIRONMENT

The Ministry of Environment and Natural Resources published in the Official Gazette a list of those substances regulated by the Stockholm Convention on Persistent Organic Pollutants, which includes several pesticides and product for industrial purposes. Such substances must be eradicated and eliminated pursuant to the abovementioned convention.

(Agreement number 409 published in the Official Gazette number 201, on November 10, 2017. This agreement became effective upon its publication in the Official Gazette)

INTERNATIONAL COMMERCE

Decisions Regarding the Free Trade Agreement between the Republic of China (Taiwan) and the Republics of El Salvador and Honduras

It was published in the Official Gazette the following decisions issued by the Administrative Commission of the Free Trade Agreement between the Republic of China (Taiwan) and the Republic of El Salvador and the Republic of Honduras: (i) Decision No. 10 – Modification of the Raw Sugar Quota Limit; (ii) Decision No. 11 Modification pursuant to the Tariff Treatment for Natural Honey and certain Dried Fruits Products; (iii) Decision No. 12 – Modification Pursuant to the Tariff Treatment for Jelly ready for Consumption, Aloe Vera Juice and Tape Products; and (iv) Decision No. 13 – Modification pursuant to the Tariff Treatment for certain Dried Fruits Products.

(Official Gazette number 218. Published on November 22, 2017)

E-COMMERCE

Feasibility of Using Emails to Perform Commercial Transactions

The litigation team of BLP EL Salvador achieved and important victory in a case in which it was discussed the feasibility of using emails as evidence to prove the existence of commercial relationships, which represents a new precedent on the matter in El Salvador. The Civil Chamber of the Supreme Court of Justice rendered a ruling whereby recognized the validity of emails as a mean to execute commercial agreements, defining virtual contracting as: “a method of executing a contract where the usage of any electronic mean may have a real and direct influence on the formation of the contract and on its interpretation”. In addition to this, the Civil Chamber established that when an email is used as a mean of communication to execute a contract, the offer will be effective upon the moment it is received by the other party and can be viewed by him or her, regardless of the fact that the receiver reads it or not.

(Ruling number 124-CAM-2017 issued by the Civil Chamber of the Supreme Court of Justice at ten hours on November 20, 2017)