As is known in the field of international trade in our country, as a result of the restrictive measures that have been opportunely written about in various specialized articles, legal actions began to be taken by importers in order to obtain, via a judicial measure, what the State itself unjustifiably denied with a distorted application of non-automatic licenses and which the Judiciary itself, in several rulings, sentenced in favor of the applicants.
Given the large number of rulings against unconstitutional restrictions, the national government decided to modify the SIMI system for the current SIRA, further compromising the free exercise of a constitutional right and also demanding the withdrawal of actions to “unblock” import requests under the magnifying glass of non-automatic licenses. Under this excuse, which may have worked in principle, many importers agreed to this requirement, obviously under clear state pressure, framed in the assumption of “abuse of precautionary measures.”
Now, what does withdrawal imply? Firstly, the action ceases, in the procedural state in which it is found. But this does not mean that it cannot be brought again in a subsequent process, unless the action and the right are withdrawn.
This is provided for in the Civil and Commercial Procedural Code, which is applicable to precautionary proceedings. In this regard, said Code provides:
TITLE V – ABNORMAL METHODS OF TERMINATION OF THE PROCESS
CHAPTER I – WITHDRAWAL
Art. 304. – At any stage of the case prior to the judgment, the parties, by mutual agreement, may withdraw from the proceedings by notifying the judge in writing, who, without further proceedings, will declare it terminated and order the filing of the proceedings.
If the plaintiff withdraws from the proceedings after the complaint has been notified, the defendant's consent must be required, and the defendant will be notified personally or by notice, under penalty of being deemed to have agreed in the event of silence. If there is opposition, the withdrawal will be ineffective and the proceedings of the case will continue.
WITHDRAWAL OF RIGHT
Art. 305. – At the same time and in the same manner as referred to in the previous article, the plaintiff may withdraw the right on which the action was based. The defendant's consent shall not be required, and the judge must limit himself to examining whether the act is appropriate due to the nature of the right in dispute, and to terminate the trial if it is. In the future, no other proceedings may be initiated for the same purpose and cause.
REVOCATION
Art. 306. – Withdrawal is not presumed and may be revoked until the judge makes a ruling, or the opposing party's agreement arises from the file.
As can be seen, in the case of the withdrawal of the action only, the plaintiff may initiate another similar action. In addition, it is appropriate to question the effects produced by the precautionary measure, prior to the instance of the subsequent ordinary action. That is, if the precautionary measure was admitted and its execution is in process, should those effects already granted to the plaintiff with a final judgment be considered withdrawn? If what is withdrawn is the subsequent claim and the defendant accepts such withdrawal, it is necessary to make clear what the withdrawal is being proposed and that the effects already granted and final, form part of the plaintiff's assets as an acquired right. Even more so if when the defendant accepted the withdrawal, it did not raise any objection regarding the final effects of the precautionary measure, when it should have done so, as indicated by the same article 304.
Furthermore, when importers process their applications under the SIRA system, they are faced with statements such as “abuse of precautionary measures”, and their subsequent withdrawals will undoubtedly be under duress, with an evident violation of effective judicial protection and the right to defense.
As a consequence, in cases of withdrawal after a precautionary measure has been granted and is final and at the time of processing the relevant claim, the effects of the precautionary measure must remain final; and if the State considers that this should not be the case, then it would have to refuse the withdrawal and raise its right in the claim, because it has already lost that previous summary instance and the plaintiff granted a counter-security for it, therefore, it cannot refuse to comply with what was ordered in the precautionary measure, since if the plaintiff's withdrawal of the precautionary measure were sought, it should have been as indicated in art. 304 of the Code of Procedure; that is, prior to the judgment of the precautionary measure, whose effects should not be considered as withdrawn, but rather those that eventually correspond to the subsequent ordinary claim.
The author is a lawyer and member of the Institute of Customs Law and International Trade of the Argentine Association of Constitutional Justice.
