On December 15, 2015, Mercado a Término de Rosario S.A. (“Rofex”), one of the largest futures markets in Argentina, and Argentina Clearing S.A. (the “Clearinghouse”), Rofex’s clearing house, issued Communiqué No. 657 of Rofex and Communiqué No. 518 of the Clearing house (jointly the “FX Communications”), both with identical terms. The FX Communications declared an emergency in connection with dollar futures’ agreements opened as of December 15, 2015 which have been entered into after September 2015 and which have a maturity up to June 2016. In connection with those agreements, the FX Communiqués amended the original agreed price increasing the price by Pesos 1.25 per dollar for those transactions opened between September 30, 2015 and October 27, 2015, inclusive, and increasing the price by Pesos 1.75 per dollar for those transactions opened after October 28, 2015, inclusive.
Certain clients who had open positions affected by the FX Communiqués sent notices to the Clearing house and the Rofex challenging the FX Communiqués and reserving the rights to sue them for the damages caused by the amendment of the agreed terms. These claims are at different stages of the court process, some client have initiated court actions while others only made out of court claims. The affected clients also followed different strategies regarding the type of court action and the parties against whom such actions are addressed. The claims against Rofex and the Clearing house may have an impact not only because of the clients affected but also for the survival of the market since, arguably, Rofex and the Clearing house would not have sufficient funds to pay the full original price under the amended contracts if they are found guilty by the courts.
Tribunal III of the Federal Court of Appeals on Administrative Matters of the City of Buenos Aires decided in “Sakkal, Elias Mehadebd vs. CNV” that the summary procedure for the protection of constitutional rights (acción de amparo) was not the appropriate action to bring a claim in connection with this matter. In “Sakkal”, the client brought the summary action against the Comisión Nacional de Valores (“CNV”), the federal agency supervising the Rofex and the Clearing house, arguing that the CNV has approved the FX Communiqués and that such FX Communiqués affected his constitutional rights on property and equality before the law. The Court of Appeals rejected the summary action since it did not comply with the admissibility requisites for such action. In particular, the Court of Appeals considered that the complexity of the matter exceeds the scope of a summary procedure and that following the ordinary procedure would not impair the plaintiff’s right to obtain an appropriate remedy.
The Court of Appeals in Sakkal limited the analysis to the procedural aspects of the action and did not decide on the merits of the claim. However, the need to bring the claims related to the FX Communiqués under an ordinary procedure may substantially delay a final decision on the merits of such claims.
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