SUSPENSION OF DEADLINES IN EL SALVADOR

In order to prevent the COVID-19 pandemic and achieve its control, the Government issued Legislative Decree (DL) No. 593 which, in addition to containing the declaration of the State of National Emergency, State of Public Calamity and Natural Disasters throughout the territory of the Republic of El Salvador (State of Emergency), decreed the suspension of all legal terms and deadlines for the period of 30 days, counting from March 14, 2020; Such suspension being applicable to administrative and judicial procedures, whatever their subject matter and regardless of the instance in which they are found and with the condition that the suspension would be with respect to the natural and legal persons affected by the measures within the framework of the decree.

Subsequently, through DL No. 599, Article 9 of DL No. 593 was reformed, eliminating the condition that for the application of the suspension, whether or not there is an impact on natural or legal persons by the measures of the State of Emergency.

The aforementioned Decree No. 593 was extended through 3 more Legislative Decrees: DL No. 622, of April 12, 2020; No. 631, from April 16, 2020 and DL No. 634, from April 30, 2020 to May 24, 2020.

Days before that expiration, on May 16, 2020, in the absence of agreement between the Legislative Assembly and the Executive Body on the extension of Decree No. 593, in a desperate attempt to maintain the state of emergency and exceeding his powers, the President issued Executive Decree (DE) No. 18 declaring a State of National Emergency in El Salvador, which faced a claim of unconstitutionality. Admitted as unconstitutionality process 63-2020, on May 18, 2020, the Constitutional Chamber of the Supreme Court of Justice (SC), as a precautionary measure, suspended the effects of DE 18. However, on May 19, 2020, the President issued DE 19, repealing DE 18, but copying the text in its entirety and maintaining its legal defects.

Complying with being part of the system of checks and balances of the Constitution, on May 22, 2020, the SC issued another resolution in the unconstitutionality process 63-2020, suspending the effects of DE 19 and declaring the revival of Legislative Decree No. 593, in its original form, for 5 days until May 29, 2020 to grant both State bodies a reasonable period of time to reach an agreement. Unfortunately, despite having agreed in a 95% on the terms of a new law declaring an emergency and reopening the economy, approved by the Legislative Assembly, the Executive Branch refused to sanction it and threatened to veto it. As it was, the revived DE 593 reached its second expiration date.

Prior to all this, on May 19, 2020, the Ministry of Health had issued its Executive Decree No. 26, ordering the entire population to remain under mandatory home protection (Home Quarantine) until June 6, 2020.

To add tension to the Salvadoran situation, on May 29, 2020, Tropical Storm Amanda joined the COVID-19 pandemic, causing serious damage to the physical infrastructure of homes, offices, schools, roads, streets, bridges and others; Therefore, on May 31, 2020, the Legislative Assembly issued its Legislative Decree No. 649, decreeing the suspension of the procedural terms and deadlines in administrative procedures and judicial processes, whatever the subject and the instance in which they are found until on June 10, 2020.

HOW ARE THE DEADLINES FOR PROCEDURES SUBMITTED TO THE INTELLECTUAL PROPERTY REGISTRY AFFECTED BY THE ABOVE-MENTIONED DECREES?

All resolutions that were notified before March 14, 2020, and whose deadlines for compliance with preventions, requirements, etc., were in progress, are suspended as of that date and they will be counted again starting June 11, 2020.

Likewise, the deadlines that would begin to run or end during this period will be counted only after the end of the aforementioned suspension, that is, they will be counted from the day June 11, 2020.

Likewise, trademarks whose renewal deadlines expired during the period of suspension of deadlines mentioned above, can be renewed, once the Intellectual Property Registry (RPI) resumes its operations, without risk of paying fines for lateness or without risk of expire.

BUT WHAT HAPPENS IF EVEN WITH THE SUSPENSION OF DEADLINES I CANNOT MEET THE DEADLINE THAT THE AUTHORITY HAS GIVEN ME ACCORDING TO THE LAW? CAN I ALLEGE FORCE MAJEURE OR FORTUOUS EVENT?

It is important to emphasize that in addition to the aforementioned suspensions of deadlines, the RPI is also closed until further notice, so even if there is a will to comply, it would be materially impossible to comply with the deadlines mentioned in our Law.

Therefore, it is valid to question: Are we facing a force majeure event or an event classified as a fortuitous event resulting from COVID-19?

According to Article 43 of the Civil Code of El Salvador, the Force majeure or unforeseeable circumstances as the unforeseen event that cannot be resisted, such as a shipwreck, an earthquake, acts of authority exercised by a public official, etc. Likewise, the Civil and Commercial Procedure Code in Article 146 establishes that The person impeded for just cause does not have a deadline from the moment the impediment is established and until its cessation.. A just cause is considered to be one that comes from force majeure or a fortuitous event, which places the party in the impossibility of carrying out the act on its own.

The Administrative Litigation Chamber of the Supreme Court of Justice has also confirmed that There is a fair impediment when, due to a fortuitous event or force majeure, an obligation has not been fulfilled.

The fortuitous event is an inevitable natural event that may or may not be foreseen by the person obliged to do something, but even though he has foreseen it, he cannot avoid it, and, furthermore, it absolutely prevents him from fulfilling what he must do. which constitutes an insurmountable physical impossibility.

Force majeure is the act of man, foreseeable or unforeseeable, but inevitable, which also prevents, in an absolute manner, the fulfillment of an obligation.

In this sense, the COVID-19 Pandemic is a unforeseen event, which although in itself is not a fortuitous event or force majeure, if it has affected us in achieving compliance with our obligations, since we have been absolutely prevented from complying with the terms and deadlines that apply to our procedures. That being so, we are entitled to validly allege, a fair impediment to comply with the deadlines given by the authority, due to an impossibility of obtaining, for example, documentation, evidence and/or carrying out the necessary steps to comply with a procedural obligation.

 

Furthermore, the COVID 1-19 Pandemic is a notorious fact that does not need proof, as the Constitutional Chamber has recognized: “In the current context, the global health crisis caused by the pandemic caused by the COVID-19 virus is a notorious fact. This type of facts is exempt from proof, as provided in art. 314 order 2° of the Civil and Commercial Procedure Code.”

Article 85 of the Administrative Procedures Law establishes the possibility of requesting the authorization of a new term when due to force majeure or fortuitous event, the actions for which the deadline is established cannot be carried out.

Based on the above, once the home quarantine ends and the RPI opens its doors to the public, we may request the authorization of a new deadline, alleging force majeure or fortuitous event before the Registrar, in the event that we cannot comply with the required for the fulfillment of an obligation.

According to the law, the request for authorization of a new term must be submitted within 5 days after the day on which the cause that motivated the request had ceased. This request must be qualified and approved by the Registrar, so that it can take effect and a new term be granted or not.

We understand the difficult situation in which we find ourselves and the impossibility of meeting the requirements on time in many cases, therefore, we invite you to contact us through our different communication channels, and let us know your doubts, concerns or difficulties in complying. to obligations in Intellectual Property procedures in El Salvador, in order to give them the best strategies to resolve their situation.

Date: June 4, 2020

By: Lic. Nadya Susana Leon Battistoni, ROMERO PINEDA

nadya@romeropineda.com