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Paradoxically, it is the very same State that failed to ratify ILO Convention No. 173— even after completing all preliminary steps of the complex treaty-making process— and now invokes that omission to justify the enforcement of a tax privilege that stands in contradiction to the very international instruments it intended to embrace; and it is the State that bears the primary responsibility, as expressed in the very Preamble of the Constitution, to promote the general welfare.
Along these lines, Boquín argues:“ The Executive cannot undo what has already been done, unless it formally denounces the treaty. In good faith, it cannot act against what its representatives have approved as this jeopardizes the objective sought: to protect labor claims and ensure their collection in bankruptcy distributions” 10. Boquín further notes that in doing so, the judiciary, as a component of the State, exacerbates the international breach, by contributing to the frustration of the treaty’ s object and purpose.
Moreover, it is the same State that, for the past ten years, applied and upheld the doctrine established in Pinturas without reservation— thus implicitly recognizing labor creditors’ rights and reinforcing expectations of preferential treatment.
This leads to a final, pressing question: Do such radical shifts in jurisprudence by the highest court— though arguably formally correct under constitutional treaty law— truly contribute to the rule of law and legal certainty?
10
Gabriela F Boquín, The Erroneous Abandonment of a Wrong Precedent, above n ° 8.
Legal certainty depends on predictability: individuals and institutions must be able to anticipate the legal consequences of their actions. It also promotes justice and equality under the law 11. But after more than a decade of consistent case law, the Supreme Court’ s abrupt departure in Acevedo has generated deep doctrinal confusion, calling into question the future role of labor claims vis-à-vis tax claims in insolvency proceedings.
In short, while the legal reasoning in Acevedo appears constitutionally flawless, the State’ s conduct emerges as deeply problematic on several fronts:
First, for failing to modernize the Bankruptcy Law in light of the evolving constitutional and international framework— not only regarding labor claims but also concerning other categories of vulnerability that demand justice.
Second, as revealed in Acevedo, for promoting a human rights discourse in theory, while failing to complete the formal adoption of the international treaties it purports to support.
And third,-clearly evident in this latest precedent-, for invoking its own procedural omission to sustain a fiscal privilege over labor claims, despite its reiterated commitments and obligations to prioritize labor claims above all others.
It is fair to conclude that the State is, in practice, undermining the very international treaties it once sought to adopt— and doing so not to protect the public interest, but rather to secure its own financial advantage in insolvency distributions.
11
Nicolás José Di Lella, Controversias en la concurrencia de acreedores vulnerables en los procesos concursales, Estudios de Derecho Empresario, ISSN 2346-9404
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