“Lawyers are not trained for high impact litigation”

High-impact litigation is an interesting way to practice law that, among other things, can be the tool that makes it easier for the legal system to keep up with social dynamism. The lawyer Camilo Araque Blanco, an expert in this area given his professional career, explains the importance of this modality.

LEGAL SCOPE: What is high impact litigation?

Camilo Araque Blanco: It is to understand that the Law, beyond a set of rules created to maintain a social order and prevent us from harming each other, is a transforming instrument with which we can generate positive changes in the community, through actions that achieve practical and concrete solutions to problems that repeatedly afflict society: health, environment, discrimination, education, security or right to consumption.

It is important to mention that, with this, it is not intended to prosecute all the causes or to promote a confusion of competences between the branches of the Public Power, but to take into account that there is no prohibited matter for the Law and the guarantees of the people. All law schools and students, legal offices and lawyers are called to contribute in this regard, according to the social function that was entrusted to us since the 1991 Constitution.

There is great international progress in countries such as England, the United States, Mexico and Chile in relation to high-impact litigation, which is worth reviewing and implementing in Colombia.

Á. J .: What factors influence the choice of cases that you promote?

C. A. B.: First, identify the existing problem (an environmental issue, a violation due to mass consumption, the affectation of public resources, etc.). Then, analyze the ideal instrument to exercise in national headquarters (such as protection, compliance, popular, group or unconstitutional actions) or international (Universal Human Rights System, Inter-American Human Rights System or the National Contact Points before the Ocde, in the case of violations from multinational companies, as appropriate) and, finally, evaluate the impact that this exercise would have on society.

Our legal system has a broad scheme of actions to protect rights, but, unfortunately, lawyers are not trained for high-impact litigation, only to practice the profession in a conventional way in a position or defending a cause with effects particular for our clients and interests, added to the worrying fact that the judges, in most cases, are not prepared to satisfactorily carry out these litigation.

I give an example: in Colombia, in Law 472 of 1998, we have an instrument as powerful as open group action, created in Anglo-Saxon law (class action opt out), which can be exercised by a single injured party, provided that it is proven that the common cause affects at least 20 people, in order to do justice to massive massive damages caused by the State and individuals and to achieve comprehensive reparation for a group indeterminate (which does not even participate in the development of the process), but which is covered by the effects of the sentence, except for the exclusion of some of its members, with economic and non-pecuniary measures, due to any source of damage: misleading advertising, defective products, abuse of the banking sector, collection of illegal taxes and, with it, obtain a corrective effect on the person responsible.

The US and Canada have succeeded in benefiting an important sector of the population with these actions and have successfully dissuaded the prosecuted officers (previously untouchable) from repeating their conduct. That is what we must get to in Colombia.

Á. J .: What decisions have been the product of this exercise? How did they impact on society?

C. A. B.: Internationally, there are successful high-impact litigation, such as the one advanced in the United Kingdom, when former Chilean President Pinochet was deprived of his liberty for his crimes against humanity. In environmental matters, the ruling of the German Constitutional Court on climate change or the recent negotiation that Apple accepted in the US for 500 million dollars, within a class action originated by deliberately slowing down its IPhone phones.

In Colombia, in addition to what has been achieved in favor of historically discriminated groups (LGBTI, women, disabled, indigenous, etc.), there are decisions of many firms caused by the high-impact litigation on the price of fuel, the prohibition of asbestos, animal rights, the protection of the Amazon as a subject of rights and the decontamination of the Bogotá river. There are other collective cases that are in progress, on novel issues due to programmed obsolescence of teams against multinationals, disputes against companies for damages caused to thousands of employees who are classified as partners or collaborators of a platform ignoring the law or due to improper handling data and drug adulteration. These decisions have had a relevant and positive effect on society.

Camilo Araque Blanco

Applied studies: He is a lawyer and specialist in Administrative Litigation Law from the Externado de Colombia University. In addition, he has a master’s degree in Tort Law from the University of Girona (Spain) and in Legal Argument from the University of Alicante (Spain) and from the University of Palermo (Italy).

Positions held: He has been legal advisor to the Bogotá Council, the Presidency of the Republic in the Office of the High Commissioner for Peace, the Senate of the Republic, the Chamber of Representatives, the Bogotá Ombudsman and the Ministry of the Interior.

Current occupation: litigant, founding member of the National Council for the Defense of the Consumer and advisor to the Unit for Comprehensive Attention and Reparation to Victims.