Regional Best Practices: Enforcement of Court Judgments: Lessons Learned from Latin America

Only recently has a general global consensus emerged among development specialists that the successful, fair and effective enforcement of court judgments, both those against private parties in commercial transactions as well as those against state agencies or officials, is of critical importance to developing a Rule of Law culture and judicial independence. There is also a growing body of international jurisprudence that requires countries, under their international and regional human rights treaty obligations, as well as their own constitution, to enforce court judgments fairly and effectively and to support the independence of the judiciary. Likewise, court decisions in various countries are also beginning to articulate and enforce these closely related legal rights.

Over the last three years, IFES has undertaken extensive assessments of the system of enforcement of court judgments in Argentina, Mexico and Peru, as well as a comprehensive survey of global research on emerging best practices and international norms in this important emerging field. With an eye towards developing a comparative research paper, our assessments utilized a uniform methodology that would enable us to build upon existing research and data from a number of Latin American countries and around the world.

Since most available research to date relates to simple debt collection cases, which are problematic and universal problems in virtually all countries, we too decided to focus our efforts in that area. While IFES also undertook some research related to the enforcement of judgments against the state, time and resources did not allow us to delve as deeply into this equally important issue. However, we do highlight the issue in this paper as one that clearly needs considerably more attention, particularly from the perspective of the human rights and public procurement communities. Until judgments against the State are enforced, there is little to deter human rights abuses and public procurement violations by government officials and little governmental accountability.

What we have learned is that systems all over the world face similar enforcement problems, although the causes of and priority problems may vary from country-to-country. Indeed, in Latin America, the kinds of problems analyzed from the perspective of users of the system, including SMEs, are strikingly similar and often parallel problems in other regions.

Common problems in many developing countries include: (i) excessive legal formalism; (ii) unnecessary judicial technical oversight; (iii) undue delays; (iv) case backlogs; (v) petty corruption; and (vi) problems related to the identification and location of assets.

Collectively, these problems translate into high costs for both the users and would-be users of the enforcement system, as well as a lack of judicial access for many powerless and impoverished citizens and businesses.

Through this research, it is now very clear that the global case backlog problem cannot be addressed without confronting effeciency issues related to the enforcement of court judgements issues since they often comprise the majority of pending court cases.

This White Paper represents the first global attempt to outline the key lessons learned, emerging best practices and panoply of enforcement issues that should be analyzed in any comprehensive Rule of Law assessment. Through this global research and the assessments, we have also made an effort to develop the first set of global judicial enforcement principles for the 21st Century. While these principles and emerging best practices no doubt need more debate and research, we hope they will serve as a solid guidepost for future attention and concrete action in many countries around the world.