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TitleThe International Comparative Legal Guide to Litigation and Dispute Resolution 2009 (The International Comparative Legal Guide Series)
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LanguageEnglish
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Table of Contents
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Contents Page
Editorial
Chapter 1 - SJ Berwin LLP
Chapter 2 - Albania
Chapter 3 - Argentina
Chapter 4 - Austria
Chapter 5 - Belgium
Chapter 6 - Brazil
Chapter 7 - Bulgaria
Chapter 8 - Canada
Chapter 9 - Chile
Chapter 10 - Colombia
Chapter 11 - Costa Rica
Chapter 12 - Cyprus
Chapter 13 - Czech Republic
Chapter 14 - Denmark
Chapter 15 - Ecuador
Chapter 16 - El Salvador
Chapter 17 - England & Wales
Chapter 18 - Estonia
Chapter 19 - Finland
Chapter 20 - France
Chapter 21 - Germany
Chapter 22 - Guatemala
Chapter 23 - Honduras
Chapter 24 - India
Chapter 25 - Ireland
Chapter 26 - Israel
Chapter 27 - Italy
Chapter 28 - Japan
Chapter 29 - Korea
Chapter 30 - Latvia
Chapter 31 - Lithuania
Chapter 32 - Luxembourg
Chapter 33 - Malta
Chapter 34 - Mexico
Chapter 35 - Nicaragua
Chapter 36 - Romania
Chapter 37 - Russia
Chapter 38 - Slovakia
Chapter 39 - Slovenia
Chapter 40 - Spain
Chapter 41 - Switzerland
Chapter 42 - Ukraine
Chapter 43 - USA
                        
Document Text Contents
Page 1

Litigation & Dispute Resolution 2009

Published by Global Legal Group with contributions from:

A practical insight to cross-border Litigation & Dispute Resolution

www.ICLG.co.uk

The International Comparative Legal Guide to:

Aivar Pilv Law Office

Anderson Mori & Tomotsune

Arias & Muñoz

Binder Grösswang

Boga & Associates

Borislav Boyanov & Co.

Bredin Prat

Carey y Cía.

Coronel & Peréz

Dechert LLP

Dittmar & Indrenius

Eversheds Saladzius

Fenech & Fenech Advocates

Gencs Valters Law Firm

Georgiades & Mylonas

Gleiss Lutz

Gómez-Acebo & Pombo Abogados, S.L.P.

Ivor Fitzpatrick & Company

Janezic & Jarkovic

Kim & Chang

Konecná & Šafár

Kromann Reumert

Lloreda Camacho & Co.

Lovells

Lydian

M. & M. Bomchil

Magisters

Meitar Liquornik Geva & Leshem Brandwein

Molitor, Fisch & Associés

Pachiu & Associates

Portilla, Ruy-Diaz y Aguilar, S.C.

Premnath Rai Associates

Schellenberg Wittmer

Sergio Bermudes Advogados

SJ Berwin LLP

Stikeman Elliott LLP

Yukov, Khrenov & Partners

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www.ICLG.co.uk

Disclaimer
This publication is for general information purposes only. It does not purport to provide comprehensive full legal or other advice.
Global Legal Group Ltd. and the contributors accept no responsibility for losses that may arise from reliance upon information contained in this publication.
This publication is intended to give an indication of legal issues upon which you may need advice. Full legal advice should be taken from a qualified
professional when dealing with specific situations.

Further copies of this book and others in the series can be ordered from the publisher at a price of £200. Please call +44 20 7367 0720

Contributing Editors
Craig Pollack and Gordon
Blanke, SJ Berwin LLP

Brand Manager
Oliver Smith

Marketing Manager
Rocio Cortinas

Cover Design
F&F Studio Design

Editor
Caroline Blad

Senior Editor
Penny Smale

Managing Editor
Alan Falach

Publisher
Richard Firth

Published by
Global Legal Group Ltd.
59 Tanner Street
London SE1 3PL, UK
Tel: +44 20 7367 0720
Fax: +44 20 7407 5255
Email: [email protected]
URL: www.glgroup.co.uk

Printed by
Ashford Colour Press Ltd.
February 2009

Copyright © 2009
Global Legal Group Ltd.
All rights reserved
No photocopying

ISBN 978-1-904654-57-5
ISSN 1755-1889

The International Comparative Legal Guide to: Litigation & Dispute Resolution 2009

General Chapters:
1 Litigating, Arbitrating and Mediating Competition Law Disptues: An Update -

Gordon Blanke, SJ Berwin LLP & Dr. Renato Nazzini, University of Southampton 1

Country Question and Answer Chapters:
2 Albania Boga & Associates: Gerhard Velaj & Valbona Gjonçari 9
3 Argentina M. & M. Bomchil: María Inés Corrá & Ignacio J. Minorini Lima 16
4 Austria Binder Grösswang: Christian Klausegger & Anne-Karin Grill 23
5 Belgium Lydian: Hugo Keulers & Annick Mottet Haugaard 30
6 Brazil Sergio Bermudes Advogados: Marcio Vieira Souto Costa Ferreira &

Fabiano Robalinho Cavalcanti 37
7 Bulgaria Borislav Boyanov & Co.: Kina Chuturkova & Georgitsa Petkova 45
8 Canada Stikeman Elliott LLP: David R. Byers & Peter F. C. Howard 53
9 Chile Carey y Cía.: Esteban Ovalle & Eduardo Ugarte 60
10 Colombia Lloreda Camacho & Co.: Gustavo Tamayo Arango & Bernardo Salazar Parra 67
11 Costa Rica Arias & Muñoz: Melissa Ramírez Zamora & Roy de Jesús Herrera Muñoz 75
12 Cyprus Georgiades & Mylonas: Yiannos G. Georgiades 81
13 Czech Republic Konecná & Šafár: Ondrej Kuchar & Adam Cerný 90
14 Denmark Kromann Reumert: Jens Rostock-Jensen 97
15 Ecuador Coronel & Peréz: César Coronel Jones & Jorge Sicouret 104
16 El Salvador Arias & Muñoz: Josué Reyes 111
17 England & Wales SJ Berwin LLP: Gordon Blanke & Craig Pollack 117
18 Estonia Aivar Pilv Law Office: Pirkka-Marja Põldvere & Aivar Pilv 126
19 Finland Dittmar & Indrenius: Jussi Lehtinen & Eva Storskrubb 134
20 France Bredin Prat: Tim Portwood 140
21 Germany Gleiss Lutz: Michael Christ & Claudia Krapfl 150
22 Guatemala Arias & Muñoz: Luis Fernando Zelada López & Shajida Beatriz Espat Godoy 157
23 Honduras Arias & Muñoz: Fanny Rodríguez & Raul Villars 162
24 India Premnath Rai Associates: Premnath Rai & R. Jawahar Lal 167
25 Ireland Ivor Fitzpatrick & Company: Dympna Murphy & David Harris 175
26 Israel Meitar Liquornik Geva & Leshem Brandwein: Dr. Israel (Reli) Leshem &

Ron Peleg 183
27 Italy Lovells: Francesco Minà & Daniele La Cognata 193
28 Japan Anderson Mori & Tomotsune: Kenichi Sadaka & Nobuhito Sawasaki 200
29 Korea Kim & Chang: Jin Yeong Chung & Jun Ki Park 207
30 Latvia Gencs Valters Law Firm: Valters Gencs 215
31 Lithuania Eversheds Saladzius: Dr. Alvydas Gineitis 221
32 Luxembourg Molitor, Fisch & Associés: Nadine Bogelmann & Paulo Lopes da Silva 228
33 Malta Fenech & Fenech Advocates: Dr. Ann Fenech & Dr. Edward DeBono 236
34 Mexico Portilla, Ruy-Diaz y Aguilar, S.C.: Carlos Fernando Portilla Robertson &

Enrique Aguilar Hernández 245
35 Nicaragua Arias & Muñoz: Edgard Leonel Torres Mendieta & Ana Cecilia Chamorro Callejas 253
36 Romania Pachiu & Associates: Voichita Craciun & Silviu Predescu 259
37 Russia Yukov, Khrenov & Partners: Alexander Khrenov & Andrew Yukov 266
38 Slovakia Konecná & Šafár: Dagmar Yoder & Diana Herényiová 273
39 Slovenia Janezic & Jarkovic: Andrej Jarkovic & Sara Pavlovic 281
40 Spain Gómez-Acebo & Pombo Abogados, S.L.P.: Francisco Peña & Diego Saavedra 288
41 Switzerland Schellenberg Wittmer: Alexander Jolles & Stefan Leimgruber 296
42 Ukraine Magisters: Alexey Reznikov & Arseniy Milyutin 304
43 USA Dechert LLP: Robert A. Cohen & David M. Bigge 309

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Chapter 22

F.A. Arias & Muñoz

Guatemala

I. LITIGATION

1 Preliminaries

1.1 What type of legal system has Guatemala got? Are there
any rules that govern civil procedure in Guatemala?

Guatemala has a civil law system.
Yes, rules are governed by the civil and commercial procedure code
and the arbitration law.

1.2 How is the civil court system in Guatemala structured?
What are the various levels of appeal and are there any
specialist courts?

The civil court system consists of:
minor courts;
district civil courts;
courts of appeals; and
Supreme Court of Justice.

1.3 What are the main stages in civil proceedings in
Guatemala? What is their underlying timeframe?

The main stages in civil proceedings are: claim; summons;
defendant’s actions; demurrers; evidence period; reception of
evidence; hearing; ruling; and appeal.
The time frame depends on the nature of the civil procedure
(ordinary, summary, oral or enforced collection).

1.4 What is Guatemala’s local judiciary’s approach to
exclusive jurisdiction clauses?

These clauses are accepted by the courts.

1.5 What are the costs of civil court proceedings in
Guatemala? Who bears these costs?

Each party is responsible for the costs incurred for any legal action
taken. In the event of a conviction of court fees, the owing party
must compensate the other party for all of the necessary expenses.
The ruling judge should condemn the losing party for the
reimbursement of the other party’s costs.

1.6 Are there any particular rules about funding litigation in
Guatemala? Are there any contingency/conditional fee
arrangements? Are there rules on security for costs?

No. Access to the Justice system is gratuitous, and there is no
security for costs, since these are derived from the final judgment.
The contingency/conditional fee arrangements exist within
arbitration clauses but not in judicial litigation.

2 Before Commencing Proceedings

2.1 Are there any pre-action procedures in place in
Guatemala? What is their scope?

Precautionary measures include: personal security, restrictions,
attachments, sequestration, intervention, urgent measures,
anticipated evidence, interrogatories, exhibition of documents,
bonds, exhibition of commercial and accounting books, exhibition
of goods, judicial inspection, expert evidence and witness
interrogation.

2.2 What limitation periods apply to different classes of claim
for the bringing of proceedings before your civil courts?
How are they calculated? Are time limits treated as a
substantive or procedural law issue?

Obligations derived from contracts have a limitation period of five
years. The payment of professional fees, salaries and wages have a
limitation period of two years; and mortgage and collaterals have a
limitation period of 10 years. The limitation periods are calculated
as of the date they were due.

3 Commencing Proceedings

3.1 How are civil proceedings commenced (issued and served)
in Guatemala? What various means of service are there?
What is the deemed date of service? How is service
effected outside Guatemala? Is there a preferred method of
service of foreign proceedings in Guatemala?

Civil proceedings are commenced by presenting a claim, and it is
served through the centre for service of process. It may be also
served by a notary process server; and, out of the country, it is
served by a requisitorial letter to the judge.

Shajida Beatriz Espat Godoy

Luis Fernando Zelada López

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F.A. Arias & Muñoz Guatemala

3.2 Are any pre-action interim remedies available in
Guatemala? How do you apply for them? What are the
main criteria for obtaining these?

No, pre-action interim remedies are not available.
There is a conciliatory figure, as a phase before the in-court disputes
begin.

3.3 What are the main elements of the claimant’s pleadings?

The basis of the claim, evidence that will be provided, legal grounds
and the petition are the main elements of the claimant’s pleadings.

3.4 Can the pleadings be amended? If so, are there any
restrictions?

Yes, pleadings can be amended at any moment up until the
defendant has responded to the claim.

4 Defending a Claim

4.1 What are the main elements of a statement of defence?
Can the defendant bring counterclaims/claim or defence of
set-off?

The statement of defence has the same elements as the plaintiff’s
pleading; and yes, the defendant can counterclaim, or present
demurrals.

4.2 What is the time-limit within which the statement of
defence has to be served?

The time-limit depends on the type of process:
ordinary: nine days;
summary: three days;
oral: three days minimum; or
enforced collection: five days.

4.3 Is there a mechanism in your civil justice system whereby
a defendant can pass on liability by bringing an action
against a third party?

No, there is not.

4.4 What happens if the defendant does not defend the claim?

The plaintiff may request that he be held in contempt and the
procedure continues without him, and his answer to the claim will
be considered negative. The defendant may present himself in any
stage of the procedure and take from there on.

4.5 Can the defendant dispute the court’s jurisdiction?

Yes, by presenting a conflict of jurisdiction action as a demurrer the
defendant can dispute the court’s jurisdiction.

5 Joinder & Consolidation

5.1 Is there a mechanism in your civil justice system whereby
a third party can be joined into ongoing proceedings in
appropriate circumstances? If so, what are those
circumstances?

Yes, a third party can be joined into ongoing proceedings as a third
party impleaded or a third party defendant.

5.2 Does your civil justice system allow for the consolidation
of two sets of proceedings in appropriate circumstances? If
so, what are those circumstances?

By a joiner of claims: 1. when different claims proceed from the
same cause even if the parties and objects are different; 2. when the
parties and objects are the same but the claim is different; 3. in
general, when a judgment made in one process, must produce “res
judicata”, or an adjudged thing in another process; and 4. it must be
requested.

5.3 Do you have split trials/bifurcation of proceedings?

Guatemala has incidental procedures within the main claim.

6 Duties & Powers of the Courts

6.1 Is there any particular case allocation system before the
civil courts in Guatemala? How are cases allocated?

The claim is presented before the Justice Administration’s auxiliary
service centre that allocates claims randomly within the different
courts.

6.2 Do the courts in Guatemala have any particular case
management powers? What interim applications can the
parties make? What are the cost consequences?

No. The phases and terms are specifically limited within the law for
each procedure.

6.3 What sanctions are the courts in Guatemala empowered to
impose on a party that disobeys the court’s orders or
directions?

It will vary depending on the level of disobedience, from a penalty
or fine to certifying the disobedience and remitting it to a Criminal
Court.

6.4 Do the courts in Guatemala have the power to strike out
part of a statement of case? If so, in what circumstances?

Guatemalan courts do not have the power to strike out part of a
statement of case.

6.5 Can the civil courts in Guatemala enter summary
judgment?

No they cannot.

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U
S
A

Dechert LLP USA

Robert A. Cohen

Dechert LLP
30 Rockefeller Plaza
New York, New York 10112
USA

Tel: +1 212 698 3501
Fax: +1 212 698 3599
Email: [email protected]
URL: www.dechert.com

Robert A. Cohen is a partner in Dechert’s commercial litigation
group and head of the litigation practice in the firm’s New York
office. He has served several times on the firm’s Policy Committee.
Mr. Cohen’s more than 30 years of dispute resolution experience
includes the litigation (including jury trials), arbitration, and
mediation of complex commercial matters, including a wide variety
of business disputes. He also focuses on matters in the areas of
antitrust, intellectual property, products liability, white-collar crime,
securities, banking, and international finance. Mr. Cohen has also
conducted numerous internal corporate investigations, a topic on
which he is also a frequent lecturer. A principal focus of Mr. Cohen’s
practice in recent years has been litigation, arbitration and
enforcement proceedings against foreign governments and
government instrumentalities.
Professional Activities
Mr. Cohen is a former chair of the Subcommittee on Litigation of the
International Dispute Resolution Committee of the New York State
Bar Association’s International Law and Practice Section and a
member of the Litigation and Antitrust Law Sections of the American
Bar Association.
Bar and Court Admissions
Member, New York Bar.
Admitted to practice before the United States District Courts for the
Northern District of California and the Eastern and Southern
Districts of New York, U.S. Court of Appeals, Second and Ninth
Circuits, and the United States Supreme Court.
Education
Lake Forest College, B.A., 1967.
Washington University School of Law, J.D., 1970.
Attended the graduate programme in International Law at the
University of London (King’s College, London School of Economics)
from 1970 to 1971.

David M. Bigge

Dechert LLP
30 Rockefeller Plaza
New York, New York 10112
USA

Tel: +1 212 698 3661
Fax: +1 212 698 3599
Email: [email protected]
URL: www.dechert.com

David M. Bigge is an associate in the litigation group. He focuses
his practice on international dispute resolution, including
international commercial arbitration and litigation for and against
foreign sovereigns. Mr. Bigge has participated in proceedings before
U.S. state and federal courts, the International Chamber of
Commerce (ICC), and the American Arbitration Association (AAA).
He has experience with clients from a variety of industries, including
the emerging markets investment sector, the global steel industry,
and the telecommunications industry.
Professional Activities
Mr. Bigge is a member of the International Bar Association, the
American Bar Association, and the Association of the Bar of the City
of New York, where he served as a member of the Foreign and
Comparative Law Committee. Mr. Bigge is a member of the AAA
International Centre for Dispute Resolution “Young & International”
group. Mr. Bigge also serves as coach for the Harvard Law School
Willem C. Vis International Arbitration Competition Team, and is on
the College of Arbitrators and Judges of the Foreign Direct
Investment Moot.
Bar and Court Admissions
Member, New York Bar.
Admitted to practice before the United States District Court for the
Southern and Eastern Districts of New York.
Education
Rutgers College, B.A., summa cum laude, June 1998, Phi Beta
Kappa.
Harvard Law School, J.D., cum laude, 2001.

Dechert LLP is an international law firm of more than 1,100 lawyers with top-ranked practices in litigation, corporate
and securities, finance and real estate, and financial services and asset management.

The firm’s core practices are: litigation, emphasising business-related disputes, antitrust, intellectual property, product
liability, and white collar and securities defence; corporate and securities, with an emphasis on mergers and
acquisitions, private equity, and corporate finance; finance and real estate, with a focus on mortgage finance, structured
finance, securitisation, and investment; financial services, focusing on mutual funds, hedge funds, variable products,
broker-dealer, commodities, derivatives, and investment advisers; and intellectual property, emphasising patent
litigation and IP prosecution and licensing.

The firm also has well-established practices in tax, bankruptcy, employment, health, and environmental law.

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