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Wednesday, May 22nd 2019

The ACP Legal Association

  • OHADAC and ACP Legal

    The partisans of this project, called OHADAC (Organisation for the Harmonisation of Business Law in the Caribbean), decided to meet within the framework of the association ACP Legal, to help interested Caribbean States to implement the project.

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  • OHADAC in brief

    This brochure has been published by the ACP Legal Association.

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ACS: Association of Caribbean States

ADC: Anuario de Derecho Civil

AEDIPr: Anuario Español de Derecho internacional privado

ALBA: Bolivarian Alliance for the Peoples of Our America

Am. J. Comp. L.: American Journal of Comparative Law

Am. J. Int'l L.: American Journal of International Law

Ann. fr. dr int.: Annuaire français de droit international

Ann. suisse dr. int.: Annuaire suisse de droit international

Anuario IHLADI: Anuario del Instituto Hispano Luso Americano de Derecho Internacional

APPRIs: Agreements on Reciprocal Promotion and Protection of Investments

Ariz. J. Int'l & Comp. L.: Arizona Journal of International & Comparative Law

British. Yearb. Int'l L.: British Yearbook of International Law

CARICOM: Caribbean Community

CARIFORUM: Caribbean Forum

Cass.: Cour de cassation

CBI: Caribbean Basin Initiative

Cc: Civil Code

CCI / ICC: International Chamber of Commerce (Paris)

Ccom: Commercial Code

CELAC: Community of Latin American and Caribbean States

CG: European Convention on International Commercial Arbitration, concluded in Geneva on 21 April de 1961

Chi. J. Int'l L.: Chicago Journal of International Law

CIADI / ICSID: International Centre for Settlement of Investment Disputes

CIDIP: Inter-American Specialized Conference on Private International Law

CISG: United Nations Convention on Contracts for the International Sale of Goods, concluded in Vienna on 11 April 1980

CJEC: Court of Justice of the European Communities

CNY: Convention on the Recognition and Enforcement of Foreign Arbitral Awards, concluded in New York on 10 June 1958

Columbia J. Transn'l L.: Columbia Journal of Transnational Law

CONC.: Concordance

Dir. comm. int.: Diritto del commercio internacionale

Dir. int.: Diritto internazionale

Disp. Res. J.: Dispute Resolution Journal.

DPCI: Droit et pratique du commerce international

DRB: Dispute Review Board

ECHR: European Court of Human Rights

ECLAC: Economic Commission for Latin America and the Caribbean

Fla. J. Int'l L.: Florida Journal of International Law

German Yearb. Int'l. L.: German Yearbook of International Law

Harv. Int'l L.J.: Harvard International Law Journal

Harv. L. Rev.: Harvard Law Review

Hous. J. Int'l L.: Houston Journal of International Law

IACAC: Inter-American Commercial Arbitration Commission

IAJC: Inter-American Juridical Committee

IBA: International Bar Association

ICSID Rev.: ICSID Review—Foreign Investment Law Journal

IDB: Inter-American Development Bank

ILM: International Legal Materials

IMF: International Monetary Fund

Int'l Arb. L. Rev.: International Arbitration Law Review

Int'l Bus. Law.: International Business Lawyer

Int'l Comp. L.Q.: International & Comparative Law Quarterly

Int'l. Law.: The International Lawyer

J. Int'l Arb.: Journal of International Arbitration

Journ. dr. int.: Journal du droit international

LAFTA: Latin American Free Trade Association

LAIA: Latin American Integration Association

La Ley: Revista Jurídica Española, La Ley

MASC: Alternative Methods of Conflict Resolution

Mercosur: Common Market of the South

Mich. J. Int'l L.: Michigan Journal of International Law

Minn. L. Rev.: Minnesota Law Review

NCPC: Nouveau Code de Procédure Civile

OAS: Organization of American States

OECO/OECS: Organisation of Eastern Caribbean States

OHADAC: Organization for the Harmonization of Business Law in the Caribbean

OJ: Official Journal

PIL: Private international law

RabelsZ: Rabels Zeitschrift für ausländisches und internationales Privatrecht

RDEA: Revista de Derecho Español y Americano

RDM: Revista de Derecho Mercantil

Recueil des Cours: Recueil des Cours de l'Académie de droit international de La Haye

REDI: Revista Española de Derecho Internacional

Rev. arb.: Revue de l'arbitrage

Rev. belge dr. int.: Revue belge de droit international

Rev. crit. dr. int. pr.: Revue critique de droit international privé

Rev. dr. aff. int.: Revue de droit des affaires internationales

Rev. dr. int. dr. comp.: Revue de droit international et de droit comparé

Rev. dr. unif./Unif. L. Rev.: Revue de droit uniforme/Uniform Law Review

Rev. int. dr. comp.: Revue internationale de droit comparé

Rev. urug. DIPr: Revista uruguaya de Derecho internacional privado

Revista mex. DIPr: Revista mexicana de Derecho internacional privado

RIE: Revista de Instituciones Europeas

Riv. dir. civ.: Rivista di diritto civile

Riv. dir. int. pr. proc.: Rivista di diritto internazionale privato e processuale

Riv. dir. proc.: Rivista di diritto processuale

Riv. trim. dr. proc. civ.: Rivista trimestrale di diritto e procedura civile

St. Mary L.J.: Saint Mary's Law Journal

Stan. L. Rev.: Stanford Law Review

Tex.Int'l.L.J.: Texas International Law Journal

TLCAN / NAFTA: North American Free Trade Agreement

Travaux Com. fr. dr. int. pr.: Travaux du Comité français de droit international privé

Tul. J. Int'l & Comp. L.: Tulane Journal of International and Comparative Law

Tul. L. Rev.: Tulane Law Review

UE: European Union

UIBA: Unión Iberoamericana de Colegios y Agrupaciones de Abogados

UN: United Nation

Uncitral /Cnudmi: United Nations Commission on International Trade Law

Unidroit: International Institute for the Unification of Private Law

Va. J. Int'l L.: Virginia Journal of International Law

Vand. J. Transnat'l L.: Vanderbilt Journal of Transnational Law

WTO: World Trade Organization

Yearbook Comm. Arb'n: Yearbook of Commercial Arbitration


I. Economic integration and legal cooperation inside the OHADAC area

1. Legal unification as an instrument of economic integration

A) General framework

1. The elimination of economic borders between two economies at least is a fact of our times, leading to various modes of integration. Integration is understood as an economic and social process intended to facilitate relations between the businesses, institutions and States of one or several countries. The decision to integrate a regional economic bloc is no doubt revealing as to the degree of competitiveness of a nation or territory having a certain level of autonomy, and by that very fact as to its ability to converge, in terms of knowledge, with countries whose level of development is superior to its own. An economic integration process is always based on the development of trade on an international scale and aims at securing a series of advantages. Whatever the stage of the process, the purpose is to provide the entities joining it with mutual benefits and advantages superior to those they might expect by acting alone in relation to outside countries or groups of countries. Such benefits and advantages are applicable not only to economic integration processes, but also to processes of political, social or legal integration, or even to any initiative aiming at a higher level of cohesion.

Economic interdependence and the globalisation of the economy have led most governments to set up programmes for the gradual liberalisation of the economy and to accelerate the process of creation of free trade zones. This phenomenon is concomitant with the gradual abandonment of a traditional reticence and mistrust towards international trade, in which multinational corporations play an important role. In addition to this, debates have lately begun with a view to preparing a geographical map depicting the integration processes taking place within the region. Those debates are conducted, not without difficulty, with a view to overcoming reticence concerning a more pragmatic approach to the role played by States in international trade - reticence arising from the incomprehensible notion of sovereignty. In order to reinforce the effectiveness of regional agreements, it is advisable not only to move towards common macroeconomic policies, but also to contemplate a process of substantive legal harmonisation.

2. The aim of establishing liberalisation requires a distinction between two situations that are not necessarily complementary: on the one hand, economic integration; on the other hand, trade integration.

  1. i) Economic integration, generally speaking, is designed to do away with customs duties between the countries making up a region or sub-region, with a view to fostering exchanges of goods. In addition to this, in the best of cases and without, however, lapsing into sub-regional protectionism (“open regionalism”1), a tariff schedule may be set in order to allow the group of States to act as a specific trade bloc, without, however, existing and being recognised internationally as a new entity with its own legal personality. Such integration between States, as a process of mutual elimination of economic barriers, is not a unique phenomenon. A State's decision to join in such a process is based on considerations that are not only economic, but also social, political or strategic. In that context, preferential tariff agreements at the level of a region or hemisphere take on their full meaning in the face of the progress of large-scale free trade projects with a view to stimulating exports and attracting investments and technologies2.
  2. ii) Trade integration3 is based on the reinforcement of trade between the integrated States due to the increase in the size of the market. It corresponds to an economic interpenetration resulting from negotiations or agreements between businesses or nation-States, via a few structural changes. This, however, does not have any overall impact, since the main objective of those States is to maintain a high degree of protection of their national sovereignty. It must be noted that sensitive industries such as automotives, equipment, petrochemicals, paper, steel and textiles enjoy special treatment in the area of trade. The positive effects of trade integration, that is, increased competition and the stimulation caused by investments, as well as technical progress, are linked to greater productive specialisation and to an increase in competitiveness. This presents advantages for both production and consumption: thanks to liberalisation, larger amounts of more diverse goods can be made available to consumers at very competitive prices4.

3. But integration is not solely an economic, commercial or social phenomenon. It includes other facets of the evolution of the operators involved. First of all, it implies the intention of safeguarding peace through collective cooperation and security beyond national borders, of establishing the rule of law and of opening up development to the outside. Secondly, it requires certain initiatives in the design of the private law institutions thus induced.

Traditionally, the development of cooperation policies between States in civil and commercial matters is a response to a weakness and is based on friendship and goodwill between them, and always on the principle of reciprocity. However, as a logical sequel of the integration process, cooperation has come to be considered not as an end in itself, but, in a majority of cases, as a condition, since cross-border disputes or disputes involving an element of foreign status are increasingly frequent and numerous. The process leading, among other things, to harmonisation between norms and legislations does not imply prima facie the creation of common norms for a regional bloc, as this would entail the risk of uselessly giving rise to conflicts between rules and of leading, outside that context, to rivalry between the national rules in force. On the contrary, the harmonisation between the legal rules relating to trade and to the exchange of goods and services (such as the rules protecting free competition5 and sanctioning unfair competition, those protecting consumers or intellectual property) has or should have as its main objective the suppression of distortions between the domestic law of States, especially when those distortions asymmetrically benefit the operators of one member State to the detriment of the others6.

In that context, and although its place has been considered to be secondary,7 private international law plays an important role in legal regulation and proves indispensible for the harmonisation of the legislations of the States that are part of an integration process. The proper operation of any integrated market, whose starting point is diversity between legislations, rests on the contributions of a private international law that is uniform and whose substance is well defined. Uniform, because the rules of the game must be common to all the participants, and whose substance is well defined in order to ensure the proper operation of this “market of normative products”8.

This leads one to state that the development of such policies has become the means of ensuring the right to justice for citizens within the integrated supranational area9. Hence also the idea that the regional sphere allows better integration based on overall economic democratisation, through compatibility between currencies, through free trade, through the establishment of common rules, and especially through a common will to set the rules of the game so as to respect the interests of the entire region. It also allows convergence between interests and often between more general values in other areas, such as investment, competition, labour law or environmental rules.

4. In Latin America, the concepts of “integration”, “cooperation” and “consultation” are generally used interchangeably, whereas they do not have the same meanings. Integration, which we have just referred to, is a deep and intense process which arises and gains strength at the economic level, but diffuses widely between States in other areas (v.gr., MERCOSUR). Cooperation assumes that the parties adapt their conduct and prefer it to others. It results from an interaction based on principles and is encouraged by objectives. Finally, consultation is a mechanism through which governments act together within the framework of their sovereignty, usually at the diplomatic level and for mainly political ends, in relation to other individual or collective operators (v.gr., UNASUR).

Trade relations in the Caribbean depend largely on the possibilities offered by the processes described above, and more particularly by the first one. It suffices to observe the results produced to date by the main integration processes inside the region or by those in which States belonging to the Caribbean zone participate, such as the Central American Common Market (CACM), the Association of Caribbean States (ACS), the Caribbean Community (CARICOM) and the Bolivarian Alliance for the Peoples of our America (ALBA in Spanish), in order to note a significant increase in trade relations inside the zone and the reinforcement of important economic sectors. Such experiences have led, as a common denominator and principally, to the liberalisation of trade in goods and services, to greater protection for foreign investment flows and to increased transparency of domestic rules, for instance as regards government procurement. However, some areas, such as freedom of movement and travel, have remained outside the scope of integration, although they are vital to any advanced integration process.

5. Although the content of the term “integration”, as used, is mainly economic, it nevertheless remains that any movement aiming at unity between different countries constitutes an economic and commercial process, but also has considerable consequences10 at the political11, legal and social level. In other terms, any action aiming at integration, but also at the formation of a more or less complete common market, underlies a multitude of extra-economic considerations. One of them consists in requiring that the member States and their governments embrace a political regime that respects freedoms - political, economic and social - and is endowed with sound and totally independent public institutions. Another consideration consists in proceeding to unify or at least to harmonise private law, or even private international law, as was done in the European Union12. The difficult establishment of gradual regional integration, with all the legal precision required, reflects a complex reality. This must be studied on a case-by-case basis, in a multidisciplinary perspective13. It may be observed that such processes do not always take place, especially in the OHADAC territory, within a community-type integrationist framework, but that they consist rather in setting up cooperation of an intergovernmental nature. The general theory of international organisations indicates that in a majority of cases we are dealing with institutions having to do with mere cooperation, not integration.

Obviously, each moment and each stage of integration require very different processes of transfer of powers on the part of the member States of the organisation. Whereas in free trade zones the liberalisation of trade can take place without requiring an actual transfer of powers pertaining to the sovereignty of the States to common institutions, customs unions consist in giving up some powers of the member States for the benefit of the new organisation and, in this case, a common strategy in relation to third parties and a specific institutional structure are set up. Provided that this model takes on the form of a common market, this transfer of powers, just like the creation of an institutional structure, becomes substantively more extensive and is supplemented by the adoption of a common trade policy.

From a legal viewpoint, integration triggers a series of public law mechanisms (agreements, treaties, codes and regulations...) whose end is to facilitate the proper functioning of the institutions in charge of overseeing the process. But starting from those basic mechanisms, a body of norms develops; it is aimed directly at the States concerned, and primarily at their economic and later at their social operators, depending on the stage to which integration has progressed. Ultimately, the final targets of the integration process are individuals and entities that are affected at the economic or financial level as well as at the personal and family level. Integration consists in multiple intercommunication and is positively complex. It requires changes in the domestic legal framework, as well as an awareness of the disparity existing between national bodies of law. While the latter continue to be necessary at the domestic level, as well as at the level of identity, they may fail in the face of the increase in international situations implied by any integration process.

6. This analysis is usually found under the heading of “Integration law” and requires setting up a complex institutional system which varies according to the objectives pursued and the stage of their achievement. This gives rise to notions such as “supranationality”, “community acquis” and “regional institutionalism”, the use of which is inevitable when dealing with such matters.

But such a legal system does not always prove necessary in order to intensify certain very basic forms of integration. Legislative harmonisation and unification can play an important role in that regard. Provided that they ensure a high level of legal security for legal operators and allow predictability in the field of law, harmonisation and unification prove to be the best guarantees for the safeguarding of legal relationships in supranational areas. The uniformity of cross-border private law relationships offers contract parties greater legal security. In order to achieve this, the applicable rules must have been developed according to fair and objective criteria. The unification and creation of law at the transnational level is no more than the expression of a reality at a given moment within the framework of international exchanges of a private nature14.

Indeed, the opening and integration of global and/or regional markets are formatted so as to provide the obvious answers to current economic reality, as well as mechanisms or instruments that are suitable, either structurally or considering economic circumstances, with a view to adjusting demand to an increasing and diversified supply of goods and services. In an economy open to the laws and rules of a market based on free competition between products and services, whether domestic or foreign, demand, just like supply, adjusts to the extended market. Moreover, it offers better conditions of competitiveness to production, both industrial and commercial, and to services. Such openness implies the elimination or reduction of obstacles, whether or not customs-related, to the free circulation of goods and services on the extended market. It likewise implies openness to the free movement of persons and capital inside a geopolitical and socio-economic area. Freedom of movement, whose variability depends on the extent and depth of openness and integration, affects subjects, that is, individuals or entities, who supply (companies) and demand (consumers) those goods and services, which are potentially located in different countries. Integration is inconceivable without such freedom, but the latter results in multiple advantages while generating possible conflicts. Such conflicts are identical to those confronting persons in a strictly domestic context, but they present additional complexity because they arise within an international framework. We are dealing, for instance, with contracts made between parties domiciled in different countries, with companies incorporated in one State and wishing to transfer their registered offices to another country, with workers who enjoy better work opportunities outside their own country and who migrate with their entire families in order to settle in a foreign country, etc. All of those situations may lead to legal problems, and their solution involves the rules of private international law; one must determine who has jurisdiction, or what is the applicable law, or in what situation a decision handed down in one State can produce its effects in another. At the present time, the answers to those questions are still to be found in each State's legal organisation; consequently, they depend on the specificities and differences of each of them, which adds additional hindrances to integration. At present, private international law, rather than looking for the rules required in order to cause national courts to comply with foreign law, rather attempts to unify the legal criteria and legislations applicable in some parts of the world, such as inside the Caribbean area. During the last decades, in the absence of a system liable to be generally accepted, a strong movement has arisen in favour of harmonisation of the norms of private international law between States. Such unification aims at facilitating international transactions, ensuring that the acquired rights of persons are respected and doing away with forum shopping.

7. In order to allow companies pertaining to States with similar political systems - which, in turn, recognise similar systems of economic organisation - to engage in trade, they must be able to rely on homogeneous rules in a good number of cases. The legal relationships that emerge from this sort of trade require a legal organisation that oversteps the national framework. In order to deal with specific legal relationships set up in an international context, whose interests and requirements differ, a compatible legal mechanism is required, one that will be as homogeneous as possible between all the member States of the integration. There is no doubt that a substantive unification process could solve such problems. However, on the one hand, history demonstrates that the themes concerned by such unification are few in number (the example of the international sale of goods is unparalleled), which would lead to major legal zones being left on the sidelines of the unification in question. On the other hand, the substantive unification achieved by means of ad hoc international agreements remains partial, since all States do not adhere to such instruments of international codification, nor do they accept them simultaneously, nor do they even enforce them in the same way.

A legal system, and a fortiori a system sensitive to the regulation of private international transactions, cannot allow itself to be limited by normative provisions issued solely by domestic lawmakers. Indeed, the latter are inadequate and cut off from legal reality, even in the context of very basic economic integration. It is necessary, on the contrary, to adjust to the reality of the international community, for in order to ensure international trade, doing away with legal barriers of governmental origin is not enough. If the lawmaker wishes to guarantee the fluidity of international trade, he must eliminate legal obstacles of both private and public origin, that is, those resulting from the legal fractioning of the various States' legislations15.

In other words, national normative development or internal codification must take place simultaneously with international codification and in coordination with it. Likewise, international codification must admit that it cannot develop on the fringes of legal unification. All of this doubtless suffers from a certain rigidity, of which internal codification is devoid. 16 Precisely in order to avoid such rigidity, this OHADAC Model Law of private international law has been developed with particular regard for the specific characteristics of Caribbean economic integration.

8. This initiative in the area of unification of private international law is in full harmony with regional integration taking place in that geographical zone. It can constitute a useful tool to mitigate drawbacks due to an inadequate domestic legal framework, which act as a check on international commercial transactions. But it also caters to those who refuse a codification imposed “from on high”, leading to a loss of the cultural identity of peoples, to the elimination of competition between legal orders, and in addition to the generation of costs greater than any possible benefits. 17 States are not forced to adhere to all of the Model Law, but can adapt its specific provisions partially and gradually in order to avoid any traumatic change. At this time, such conduct would be thoughtless. Thus, with more realism and prudence, the Model Law does not rule out the maintenance of a certain normative diversity in order to safeguard, for as long as may be necessary, the identity of the national legal orders concerned.

In addition, as a “Model Law”, this initiative is no more than a legislative “proposal” which may, in turn, be received by a State in fragmentary fashion or, if necessary, in the same way as other legal instruments in force in that State. However, while such an option cannot be ruled out, such fragmentation is not recommended, for it would give rise to the risk of placing private international law under the tutelage of domestic law (substantive private law) and of giving rise to diverging interpretations liable to jeopardise the very consistency of the normative whole involved. 18 The soft law technique could also lead to a partial reception of the model, but this would simply mean stopping halfway through the process, which nevertheless proves necessary and decisive. This unifying initiative thus aims at offering a complete system of rules of private international law which will adapt specifically to the requirements of the practice generated by private international transactions. Such a system aspires to be received in full by the OHADAC member States. This Model Law, considered as such, may serve as a reference for judges and arbitrators, be interpreted or supplemented by other instruments governing private international law relationships, or also serve as a model for national lawmakers, which is, however, its main objective.

B) Integration in Latin America

9. The integration of the economies of Latin America and the Caribbean is an aspiration that became apparent during the fifties of the past century and was implemented during the sixties. The basic postulate is as follows: integration is a way of settling economic problems which serves to reinforce a sole bargaining power within the framework of international trade, characterised by the existence of countries that are more developed than others. 19 However, the integration mechanisms created at the time (the Latin American Economic System, the first Latin American Free Trade Association, the Central American Common Market, the Andean Community and the Caribbean Common Market...) did not actually lead to significant advances and actions in the field involved. This can be explained by the fact that, from the start, integration was never conceived as a political process, that is, as a reality fully included in each country's national development policies.

In the south of the American hemisphere, the integration process had three different results for regionalism. First of all, the diversity of the forms of institutionalisation, structured into different bodies; secondly, cooperation between countries on bilateral or partly multilateral experiments, which was expressed by a considerable number of multilateral and bilateral free trade treaties; and finally the compatibility of the experiments in multilateralism conducted in the form of “open regionalism”. 20 This description contrasts with an equally undeniable fact: in Latin America, confusion and ambiguities regarding the question of regional integration and cross-border trade are frequent. There is still a great distance between what is said and what is actually done. Governments express strong interest in reinforcing relations between States, but their trade practices go in the opposite direction. 21

Until the mid-eighties of the past century, there was a very distinct difference between the economic area formed, on the one hand, by the countries of Latin America and the Caribbean and, on the other hand, by the developed countries of the continent (USA and Canada). The principle was that integration was a process intended to support the developing economies of the region in order to reinforce the progress and their presence on international markets. Thus, the region's developed countries intervened on those markets through multilateral mechanisms and not via preferential agreements. The creation of the North American Free Trade Agreement (NAFTA), which dates back to the same period as the WTO, changed that picture by meeting the challenges of increasing globalisation and responding to the difficulties encountered by developing national economies in finding their place in the international economic scene. The upsurge of regional integration in Latin America and the Caribbean then took place as a movement arising on a global scale.

Those processes come under the heading of “new regionalism”. They take on various forms, alternating between projects in the field of classical macro-regions, with novel experiments at the sub-regional level, including between specific zones consisting of two or more countries. In a majority of cases, these are inter-governmental projects whose objectives are mainly economic. They have given rise to intense debate as to the various models of integration involved, and as such they have contributed to a better understanding of the versatility of the integration phenomenon22.

10. In the light of the expectations of the eighties, present developments clearly illustrate the fact that the attempts at integration led to persistent crises and were marked by deadlocks. It was then necessary to find new ways out, which, without putting aside all of the traditional processes, would be able to contribute more immediate and realistic solutions, aiming at a more intense integration in a globalised world. A synthetic diagnosis shows, on the one hand, a real political will, rather contained on the part of many governments, who do not hesitate to make grandiloquent positive statements in international fora on programmes which they will not implement. On the other hand, it appears that there is an obvious lack of continuity as regards integrationist proposals. In a majority of cases, this is due to political instability and to the fact that successive governments put forth programmes whose choices differ from those of their predecessors.

As a result, many of the processes initiated were unable to achieve the minimum objectives set in the original texts. This has led to experiments with new models, which in a majority of cases has reduced all those efforts to the sole creation of a “trade zone”. The sole establishment of free trade zones or very basic customs union structures is not an appropriate tool for true integration. It must go hand in hand with coordinated common foreign policy actions and with the implementation of productive processes within the region involved. In those cases, we are dealing more with mere formal processes than with actual tools oriented towards true integration. It is not enough to share common objectives as regards integration to allow the project to achieve its purpose. A minimum amount of political coordination is needed in order to have an impact on industry, on foreign policy, on immigration policy, on the handling of the foreign debt, or even, in the case of advanced integration, on a common defence framework. As a result, integration models based primarily on an unsuitable customs protection policy did not at all succeed in solving specific common issues, such as, for instance, the problems posed by drops in the price of commodities, poverty and unemployment. The creation and implementation of transparent mechanisms of participation by citizens in integration processes, together with initiatives aiming at legislative unification, both substantive and relating to private international law, are the only means of achieving true results as regards Caribbean integration and of causing the local populations to benefit from them. Let us examine this question more attentively.

C) The specific features of Caribbean integration

11. Besides the basic alternative between regional or continental integration, with tendencies clearly in favour of the former23, the Caribbean zone faces major challenges of economic and social development in the face of globalisation. In this new global economic order, a significant part of the competitive potential of each Caribbean State depends on its integration with the other countries in the zone. That zone is presently engaged in several free trade negotiations, which take on various forms but are simultaneous. The major problem confronting the region in the face of those initiatives is perhaps the lack of the human and financial resources which would allow it to conduct effective negotiations and to defend its economic and commercial interests. The main interest of the Caribbean is to arrive at the recognition of a differentiated treatment in its trade policies, taking into account its weakness in the area of production and its dependency on preferential commercial treatment on the markets of the European Union, the United States and Canada.

Caribbean integration thus appears to be an independent development alternative which transcends the strictly economic and commercial framework. Its ultimate objective is the implementation of policies aiming at improving economic development and social welfare. Through the harmonisation project initiated, OHADAC offers an excellent opportunity of developing the Caribbean economies in the context of the globalisation of the economy. One only need take into account the objectives to which it grants priority: dealing with legal and judiciary insecurity in the States of the zone in order to guarantee security for investors and facilitate trade between the member States.

The project contributes tools useful for the countries of that geographical zone for the intensification of intra-Caribbean trade, which fluctuates between 12 and 20 % of total trade. This project is designed to serve as a transmission belt between the development of major economies of scale and processes of legal reform within the Caribbean integration zone. In order to establish trade relations with other countries, it is necessary to finance actions and strategies that will stimulate the economic development of the countries in the region, starting from the chances and strengths offered by those economies. These are the mechanisms which must be used so as to peremptorily overcome the unfavourable approaches to international cooperation characteristic of that geographic zone. In that context, taking into account the rules of private international law is of special interest for the countries and territories integrating that institution and has led to the presentation of this Draft Model Law.

Indeed, the complementary phenomena constituted by globalisation and integration have seriously disrupted the traditional image of private international law, based on notions of sharing, position, territory and State sovereignty. In the globalised market economy which the States of the Caribbean zone wish to integrate, relations with the rest of the world are much more than a mere diplomatic fact. That economy is characterised by the suppression of national barriers to the free movement of goods, services and capital. Such actions are proving increasingly urgent at all economic and social levels for the movement of wealth between States. This is why the countries of the Caribbean must seek for ways of dealing with all, or at least with a majority of situations involving several States. This task must be carried out through a complete and efficient set of rules making it possible to find the proper substantive norm governing a definite private law situation, as well as the judicial organ responsible for settling any disputes liable to result from it.

12. The instruments of integration are not solely economic (v.gr., common customs tariff, rules of origin, measures for the protection of trade...). The organisms taking part in such a process are predestined to undergo internationalisation on the basis of specific parameters, while safeguarding their sovereignty or their link with their national territory and nationality24. Concretely, in the context of legal and judicial cooperation, this tendency is materialised by negotiation, the development of legal tools and a gradual increase in the number of those tools and of the agents intervening in cooperation strategies. The final objective of civil and commercial judicial cooperation is to set up very close collaboration between the authorities of the various States in order to eliminate any and all obstacles resulting from the incompatibility of the various judicial and administrative systems (mutual recognition and enforcement of decisions, access to justice and harmonisation of national legislations). In order to rise to the various challenges existing in legal and judicial matters, one of the tools liable to be successfully developed in the OHADAC zone concerns the assistance that governments can mutually lend one another. It could take the form of new legal mechanisms suited to the objective of cooperation pursued. The purpose is to build a true Caribbean judicial area inside which both individuals and companies will be able to exercise their rights freely and fully. As already indicated previously, the starting point, that is, the diversity between States and the possible and necessary respect for certain national specificities results in the fact that the strategy of private international law is among the most effective, since it renders diversity compatible and provides predictable and uniform solutions. In a certain way, next to the rules settling questions of applicable law, the rules governing international judicial cooperation (international jurisdiction, international judicial assistance, recognition and enforcement of judicial decisions) are called upon to be part of this special procedural law inside a broad field of international situations.

Any initiative aiming at integration requires a combination of normative and institutional efforts in order to simplify the cooperation procedures and specify them clearly. Hence the value of unifying legislations and reducing the number of operators acting within the framework of cooperation, so as to set up simpler and more efficient procedures. Depending on the experiences and needs expressed by the States, such actions may be reinforced and broadened to include other legal and judiciary fields. One of the activities related to legal and judicial cooperation which it would be beneficial to develop concerns the means to be implemented for a more fluid dialogue between legal and judicial authorities, for the sharing of experiences and for horizontal cooperation activities making it possible to perfect the organisation and functioning of democratic institutions. The countries of the OHADAC zone may set up cooperation mechanisms for the legislative development of domestic legal tools.

As the negotiations aimed at consolidating free trade in the zone progress, it will appear increasingly necessary for the countries to harmonise and integrate their domestic law in areas where dialogue and negotiations allow a consensus to emerge. The revision of national legislations and their harmonisation with the international treaties entered into, or their mere coming into effect, is a difficult task in itself. It proves especially complex in countries with a lesser degree of economic and democratic development. This renders assistance particularly necessary. It may take the form of comparative law tools and studies of the most successful laws, regulations and administrative practices. Such work may be planned according to a schedule set for the countries of the zone concerned and be devoted to the various themes relating to the administration of justice. In this area, private international law plays an essential role.

D) Manifestation of Caribbean integration

13. The commercial opening of the Caribbean has considerably strengthened the numerous links at all levels, whether multilateral, regional or bilateral, and has been reinforced by the signing of trade agreements between the countries of the area. 25 Similarly, integration organisations have emerged. The strengthening of relationships has highlighted the serious impediments to the integration process (v.gr., conditions in the country of origin and facility for the movement of goods and the circulation of transport in others) and overhauling them would provide additional growth opportunities to regional companies.

In any case, the multiplication of international organisations around the Caribbean may be both an advantage and an inconvenience. Certain countries form part of the Caribbean Community (CARICOM) or the Caribbean Forum (CARIFORUM), 26 the Association of Caribbean States (ACS), the Organization of Eastern Caribbean States (OECS), 27 the Rio Group or the Latin American and Caribbean Summit (LAC-Summit); 28 and these bodies aim to achieve economic integration, even if only partially. Several countries belong to regional organisations which transcend the frontiers of the Caribbean, but which can work towards similar goals in the area of legal harmonisation or economic integration such as: LAIA, ALBA, OAS, Commonwealth... This plurality of international organisations is similar to the situation affecting the OHADA States on the African continent, 29 and this has not prevented this specific organisation from successfully implementing harmonised commercial law30. It is certain that OHADAC will not be able to play a role as important as OHADA in Africa31, at least initially. In any event, it is necessary to rely on this plurality of international organisations and rely on them to give OHADAC special responsibility geared towards the legal harmonisation in commercial matters, with maybe with a more technical than political profile, where a greater role is given to private institutions (Chambers of Commerce and Arbitration) that than to the States, at least initially. This also determines the strategy for harmonisation, which is not the sole preserve of Sub-Saharan Africa32.

14. Disregarding a long tradition of integration in Central America, for obvious historical reasons, it should be remembered that during the nineteenth century and the first half of the twentieth century Central American trade and production was dominated by traditional agricultural activities, some of which have led to a great integration in the external market, as is the case of coffee, bananas and cocoa. This process has been much more intense for Guatemala, El Salvador and Costa Rica, and has existed to a lesser extent in Nicaragua and Honduras. Among other aspects, the aim was to promote the growth of industrial activities that permit the substitution of imports and at the same time diversify the production offered by Central America. As for Panama, from the beginning, it has opted for the service economy (related to the canal and the financial sector), in a different dynamic to the process of industrialisation through substitution.

Founded in the early sixties of the last century, the Central American Common Market is the oldest of the region's integration groups. It includes Costa Rica, El Salvador, Guatemala, Honduras and Nicaragua. In the late seventies and during the eighties, this market was affected by political instability in several member States, which has influenced its subsequent development and its own crisis. However, the companies of the isthmus have played an important role in the growth of exports, and their initiatives are significant in terms of competitive products and services capable of meeting the challenges of international competition. In 1993, the countries of the sub-region committed themselves to the goal of setting a common external tariff, which was to be adopted at a different pace and was to fluctuate between one and fifteen per cent. In 1995, the agreement on common external tariffs for the first time included the agricultural products sector.

Along with these experiences of regional economic integration, six Central American States (Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua and Panama) established the Central American Integration System (SICA from its Spanish acronym) under the Tegucigalpa Protocol, of 13 December 1991, whose operation began in 1993. This system, for its part, has four integration subsystems in the economic, social, cultural and political fields. Inevitably, the first of these is the most important and establishes the basic principle of the Protocol to the General Treaty of Central American Economic Integration, signed in Guatemala, of 29 October 1993. The economic and trade objectives are expressed in relatively generic terms. Specifically, the SICA aims to achieve well-being and economic and social justice for all Central American peoples, to allow an economic union and enliven the Central American financial system. It also aims to strengthen the region in order to turn it into an economic bloc capable of successful integration into the global economy.

Following a sluggish period, integration in the Central American region has permitted significant progress in the six presidential summits of the region. The most significant success was the Framework Agreement for the Establishment of the Central American Customs Union signed on 12 December 2007 by the Ministers of Economy, Foreign Trade and Industry. The Framework Agreement establishes and confirms the desire to create a customs union on its territory, in accordance with the General Agreement on Tariff and Trade (GATT) and its successor organisation, the World Trade Organization. The agreement comprises seven Titles and thirty articles. Its application will occur gradually and progressively. It does not have a term of validity, is thus for an indefinite period and open for signature by any member country of the SICA; the acceding country must deposit the instrument of accession with the SICA General Secretariat.

15. The Caribbean Community (CARICOM) includes the following States: Antigua and Barbuda, the Bahamas, Barbados, Belize, Dominica, Grenada, Guyana, Jamaica, Montserrat, Saint Kitts & Nevis, Saint Vincent & the Grenadines, Trinidad and Tobago and Suriname. The Caribbean Common Market was created by the “Treaty of Chaguaramas” signed by Barbados, Jamaica, Guyana and Trinidad and Tobago. It entered into force on 1 August 197333. Afterwards, the other eight Caribbean territories entered into CARICOM. The Bahamas became the 13th member State of the Community on 4 July 1983. In July 1991, the British Virgin Islands and Turks & Caicos entered as associate members of CARICOM. Twelve other States of Latin America and the Caribbean are observers in various institutions of the Community and the Ministerial Councils of CARICOM. On 4 July 1995, Suriname became the 14th member State of the Community. These countries have a total of 6 million inhabitants. The Community is currently implementing the second phase of its Common External Tariff, which aims to set tariffs between five and twenty per cent for 1998. CARICOM has signed trade agreements with Colombia, Mexico, the Dominican Republic and Venezuela and its countries receive preferential treatment in trade exchanges with the United States of America and the European Union.

In 1995, the Association of Caribbean States (ACS) was created and closely links together Caribbean countries with those of other regions such as the countries of the North of South America, Central America and Mexico. It brings together twenty-five countries and twelve territories in the Caribbean basin. The ACS' priority areas for action concern tourism and both intraregional as well as interregional transport. In a way, the ACS is a reaction against integration processes and globalisation processes. Its creation stems from the initiative of the CARICOM countries, supported mainly by the countries of the Group of Three34.

The creation of the Caribbean Single Market and Economy was the result of a 15-year effort to fulfil the hope of regional integration, which was established by the creation of the British West Indies Federation in 1958. In the economic sphere, the Region has maintained the same status for years and, during this period, free trade had not yet been established between the member States. The Lesser Antilles Federation was completed in 1962, which in many aspects should be considered as the true beginning of what is now the Caribbean Community. The conclusion of the Federation signalled the start of more serious efforts by the political leaders of the Caribbean to strengthen ties between the islands and the mainland, in arranging for the continuation and strengthening of the areas of cooperation that existed during the Federation.

16. Reference should be made to the Caribbean Basin Initiative (CBI), which was adopted in 1984, establishing a unilateral advantage granted by the United States regarding preferential access for exports (either free from any customs charges or taxed less than the exports of other countries) from the countries of Central America and the Caribbean to the United States. Originally, textiles were excluded from preferential access to the CBI. Also, when NAFTA came into effect, exports of textiles from all of Central America suffered a disadvantage compared to Mexican exports. In 2000, Central American and Caribbean countries obtained from the US the inclusion of textiles and tuna exports in the CBI preferences through the Caribbean Basin Trade Partnership Act (CBTPA). Central America's aim was to sign a free trade treaty with the United States, due to the precariousness of the CBI and the disadvantages that it would face in comparison with other countries such as Mexico and Canada35.

In September 2001, the governments of the Central American countries and the United States agreed to initiate an exploratory phase for the official launch of negotiations to reach a free trade agreement. From 2002, a series of technical workshops were held in different cities of Central America and United States and resulted in the exchange of information on various business topics, which facilitated the subsequent definition of a framework for future negotiations. On the basis of this process, the countries agreed to commence negotiations on a free trade treaty, which was launched on 8 January 2003. The negotiations were complex and took place through several successive round-table meetings. Due to the integration system that existed in Central America at the time, the Central American States had to conduct coordination meetings in order to adopt a common position around the negotiating table. The Central American countries succeeded in their negotiations in December 2003. During the negotiation process, the Dominican Republic expressed its interest in joining the free trade treaty between Central America and the United States, and this was received positively by the six other countries. Thus, following negotiations between Central America and the United States, the Dominican Republic accepted the areas previously negotiated by these six countries and signed agreements with the United States and Central America on access for their products to these markets and vice versa36.

17. The Free Trade Agreement between the Dominican Republic, Central America and the USA was signed by seven States parties on 5 August 2004. The free trade agreement between the United States, Central America and the Dominican Republic (DR-CAFTA), along with other agreements, presents rules which are reiterated by the World Trade Organization (WTO). It has created a trade liberalisation based on the assumptions and inserts provisions laid down in the Central American integration, and the majority of which apply on a multilateral basis. The DR-CAFTA thus improves Central American regulations, which at the same time are beneficial for trade relations in the region. In this instrument, the legislative changes that the Central American countries must effect for the treaty's entry into force are identified. These changes focus mainly on services, telecommunications and intellectual property. It is hoped that the increased opening of the region and improvement of the regulations induced by the signing of the DR-CAFTA will provide greater opportunities for investment, trade and employment between the signatory countries.

As a condition for entry into force, the negotiating countries had to establish a complex legislative reform process in order to adapt their respective regulations to the latest international commercial standards. The provisions of the Agreement were the consequence of the evolution of international trade legislation. Also, from the start, the reform work was done in a coordinated manner, and in a second phase, the work was done on a bilateral basis between each country and the United States.

E) Contribution of private international law

18. The emergence of regional economic and political integration projects has been one of the realities that have rapidly highlighted the need to go beyond the national reference for formulating the subject of private international law37. In this sense, the integration phenomena need to move more towards the following syllogism: since private international law helps compensate for the legal distortions in the space provoked by a variety of causes, it should be taken into account that its subject does not concern a uniform heterogeneous private situation but rather various “heterogeneous private situations” to which private international law is required to provide a particular response. And this need appears all the more evident, but not exclusively, in the case of European integration, which not only pursues a specific legal objective, that of integration, but also relies on an autonomous and complete legal order with its own sources and whose vocation is to be applied in the space functionally defined by the fact that it covers private “integration” or “intra-Community” situations38. Taking into account the classification proposed by S. Alvarez González, once the “function of defining” the subject of private international law is recognised, the diversity of the heterogeneity that characterises it makes it possible to profile its “normative function”39.

The implementation of an integration process means that the role of the law and, in particular, of private international law, is one of great significance40: integration, as a functional objective, uses this order to be effective in promoting the cultural identity of individuals through respect for legal diversity, even as it harmonises solutions by making them more predictable. In other words, private international law is a “functional unit” which is closely related to the principles and freedoms generated by the operation of a supranational body41 or free trade area.

At the same time, any regional integration phenomenon has substantial repercussions on the regulation of the legal situations concerning more than one national legal order and situations of so-called private international relations but the intensity of the impact bears a direct relationship with the level of the objectives achieved. Starting from a very basic, but valid functional classification in the context of our demonstration, a distinction can be made between the free trade area, customs union, common market, economic union and global integration. Of course, each of these categories is the result of the qualitative sum of the following elements: removal of customs duties, common external tariff, common trade policies, common economic policies and the common global policies (defence, foreign relations, industry, currency). Needless to say, the role of private international law is very different at each of these levels and it appears particularly important from the stage of the common market - on the fringes of a kind of harmonisation of legislations produced by the process - and that it becomes an indispensable element in the final phase of the process42. Thus, in some basic models of integration, the assignment will have repercussions directly in the economic administrative law of the member States, but as and when the phenomenon of integration increases, these rules will have decisive repercussions on private law and in particular on the law of property. Finally, the transition from economic integration to political integration leads to effects in all sectors of the legal order, including the rights of persons.

If private international law is understood as a legal order regulating private international situations, in connection with a recognised and concrete national system, it appears undeniable that any integration process can presume a substantial transformation of its traditional goal. Integration in this context tends to produce three basic alterations. 43 First of all, it leads to a real transformation of some basic principles of private international law, which is essentially the phenomenon of the “frontier”. Secondly, the pluralism of the systems is also altered because the integration process marks a trend towards the unification of legislations in the production sector. Finally, given that all “Community law” projects generally have many shortcomings, the new organisation tends to codify directly certain areas of private international law.

19. A paradigmatic example of the need for integration to be accompanied by essential provisions of private international law is provided by the international contract, which quintessentially is the means by which cross-border economic transactions are developed. The internal contractual solutions are inadequate to deal reliably with international contracts. It is necessary to be able to rely on an appropriate regulation based on the international dimension covered. Specifically concerning OHADAC, a legal vacuum exists, which, until now, has been characterised by substantive law, not compensated for by case-law solutions likely to provide sufficient security to commercial operators. It is certain that a majority of States parties have acceded to the Vienna Convention on Contracts for the International Sale of Goods of 1980 and other international instruments. However, this legislation is insufficient to confront the complexity of international contracts, which requires private international law rules that are non-existent in these countries, except for Venezuela, which is a notable exception.

Solutions are necessary in order to establish a climate of confidence conducive to the award of contracts by foreigners in accordance with the principles of lex mercatoria, while respecting the interests of Caribbean contractors as well as the rules of economic public order. These solutions also guarantee a fair treatment of nationals by the Caribbean courts. This climate could have been fostered by the entry of the convention area countries of the 1984 Mexico City Convention on the Law Applicable to Contractual Obligations, which was developed within the CIDIP (to which only Mexico and Venezuela are party). However, given that this is not the case, we should not balk at the solutions implemented by this legal instrument, a comparative law model, and need to examine the possibility of introducing these solutions in the private international law of the OHADAC countries, maybe through a Model Law44.

2. Burgeoning regional private international law relationships

A) Conditioning factors

20. Any integration process ends up inexorably requiring judicial cooperation among States in civil and commercial matters, which gradually increases as the process continues. Apart from the strictly commercial matters, in recent years the Caribbean has seen an unprecedented growth of problems due to international relations and to which particular attention should be paid by national legislators. To do this, it is necessary to establish clear private international law rules which address specific problems in the following areas: migratory movements with any burden placed on individuals and their families, development of tourism and increase in foreign trade and investment activity.

21. Faced with migratory movements and regional economic integrations, the need to create legal and even physical borders continues to be debated in cross-border relations. The immigration phenomenon creates a great challenge to the economic and social impact produced by this human movement. Indeed, the host country, while protecting the elements of its own identity and national cohesion, needs to be able to reconcile its own progress with full respect for human rights as well as to meet the expectations of immigrants and their families as regards their right to a dignified life. Besides rules that govern the entry and establishment of foreigners in the various States, and which is an issue to be placed in a public law framework, there must be private law rules aimed at foreigners already living in a country and making a fundamental choice, following the scheme laid down by comparative law. It is a choice between the application of the national law of foreigners and the application of the law of the host country or of a third country for all legal matters affecting people's personal and family circles, including situations also essential for their property, as is the case for the legal capacity to undertake acts having legal effects. Without going into other considerations in technical terms, which will be discussed later, it is necessary to see once and for all if the traditional fundamental solutions proposed by the domestic law of persons respond correctly to the normative model developed in the twenty-first century.

Answering this question in a context of increasing immigration could be based on the classical dichotomy which requires a simplistic application of the law of the place of the domicile with the goal of integration regarding the application of the law of the nationality rooted in the State of origin. If the diagnosis is accurate, increasing immigration would mean opting for the application of the law of the domicile of persons (immigrants and own nationals resident in the Caribbean area). However, none of this is easy. After decades of theoretical controversies and legislative choices, finding the right balance has led to the current systems opting for “predominant” solutions based on domicile or “predominant” solutions based on nationality, but not for systems as such. This is in addition to the introduction in recent years of a trademark principle: the autonomy of the will, which under certain conditions allows the individual to choose either to be integrated into the law of their domicile, or to remain dependent on the law of their domicile. We will see below how this idea takes shape in the Model Law.

22. The OHADAC territory, thanks to its privileged location in the Caribbean, has many particularly attractive and interesting locations for the tourist industry due to its beautiful beaches and beautiful scenery. The implementation of rules on foreigners in order to facilitate tourism reflects the national interest in the development of a mainly private commercial activity, which is an important source of revenue-driving national economies. This would establish a special status of tourist as a fundamental principle of the development of a private entrepreneurial industry45.

Nowadays, foreign tourism is a phenomenon that is part of the daily life of Caribbean people, because it greatly affects their economic income as well as their lifestyle. Foreign tourists generally consume in euros or dollars or exchange their currency, which leads to the introduction of foreign currency into the national economy and allows countries in the region to gain access to services and products they do not produce. However, the presence of millions of tourists, even if of limited duration, poses serious problems that have to be solved on the macroeconomic level, such as the increase in international flights or the introduction of foreign exchange. In ecological terms, it is no coincidence that the majority of hotels in the area are in the hands of foreigners; tourism accentuates the destruction of the flora and fauna of tourist areas and generates pollution and traffic flow problems; and finally, there are legal consequences in the strict ambit of private law46.

The situation as it stands requires the establishment of a legal framework in order to provide legal protection to foreigners who engage in contractual transactions. Particular attention must be paid to the international tourism contract, which tends to have a high degree of complexity because it involves hotel franchises, the sale of goods, transfer of technology and labour relations, considering that the vast majority of workers who provide their services to foreign tourism businesses are Caribbean. Given the scale of tourism-related contracts, it should be added that it can increasingly not be ignored that tourists are consumers and that as such they benefit from a specific law and from a certain legal privilege with regard to the professionals they have dealings with.

However, tourism not only calls for contractual solutions either between industry professionals or between professionals and tourist consumers. The potential destruction of the environment by the hotel industry, the increase in traffic accidents caused by foreign tourists and the breaching of immigration conditions by tourists, especially on so-called combined journeys, require specific regulation in which the non-contractual dimension plays an important role.

23. With the opening to international trade, the economy of many Caribbean countries is channelled from the phenomenon of privatisation of enterprises towards a clearly liberal policy except for the sectors exclusively attributable to the State. Meanwhile, in recent years, legislative reforms and administrative deregulation have been operated in order to attract productive foreign capital, so as to increase the supply and quality of jobs, increase exports and improve the conditions for effective technology transfer. In legal terms, the adaptation of private transactions to globalisation and international trade has led to the modification and simplification of hundreds of laws, while at the same time trying to eliminate barriers to trade development. Basically, they refer to the transfer of technologies, trademarks and patents, as well as foreign investment.

The growth of foreign trade warrants special consideration because it is an index of economic growth in the OHADAC area and of the level of integration in the global economy. In addition, it leads to an entry into the market economy and liberalisation of the economy of gradual processes introduced in the late nineties and 2000 and which have been accentuated and reinforced in the past decade, when the States of the area signed important free trade agreements with the United States and the European Union. This opening to international trade and the policy of attracting foreign investment pursued by the States of the region not only require them to proceed with legislative reforms and administrative deregulation in terms of public law, but equally to adapt the rules of conflict governing private transactions and which are contained in large corpora like the Civil Code or the Commercial Code. It is, above all, a question of meeting the new intellectual property or protection requirements of competition in markets, which have gradually been internationalised. It is also a matter of determining the law which will recognise and protect a right or the law that will set the rules of the game applicable to new economic operators and based on which they will take their decisions without hampering free competition or unfairly undermining their actual or potential competitors.

24. The investment activity is likely to extend beyond the national legal framework established by States as a result of the offshoring of their investments in another country. An appreciation of the scale of this activity reveals a characteristic of international production, since this is the means by which they try to increase profits of investors. Investors are targeting locations where regulations on waste emissions, employment law, taxes and salaries are most favourable in order to obtain greater profit margins. All of this involves placing in the hands of States that receive the investment an analysis presenting the difficulties of combining both political and economic criteria as well as strict legal criteria such as, among other things, the impact of the investment on the environment, the scope of intellectual property protection, the effects of employment legislation. The existence of a favourable investment environment also requires specification of the scope of the public economic order, the irrefutable principles for the States of the area, prevention and control of corruption, reform of the tax regime and, in any event, the reduction of bureaucratic and commercial barriers47. Caribbean legislators must be very aware of the need to create the right conditions in order to enable the private sector to assume the leading role in the investment and capture of foreign capital is a key element of this strategy. To do this, it is necessary to have a legal framework, providing incentives and guarantees to foreign investors and supporting the possible repatriation of investment and its products. In addition, legal protection is not only required for the specific cases of investors but also for the already mentioned indicators, which are directly related to production, the destination of investments and especially to conflict resolution in the hands of all parties concerned (decision in courts, but also before highly specialised arbitrators in these matters).

Such an approach is not incompatible with the fact that the State reserves the right to adopt a series of actions aimed at avoiding the possible destabilising effects caused by the massive and simultaneous withdrawal of speculative capital. This will require portfolio investments on the capital market to remain deposited for a minimum period. In this context important steps have been taken both in the field of regulation of foreign investment and in the parallel policy of signing reciprocal investment protection and promotion agreements as well as in the field of reforms of the regulatory legal framework for the infrastructure sectors48.

In any case, a certain modernisation of legislation relating to international trade especially with regard to commercial arbitration should be recognised49. Specifically, the existence of many rules in this area, fundamentally based on the line drawn by the UNCITRAL Model Law of 1985, amended in 2006, fully justifies the exclusion of international commercial arbitration from the scope of this Model Law, even if from a purely substantive point of view it would enter perfectly into the framework of this regulatory initiative. Generally, private international law legislation is not interested in arbitration, apart from the case of Switzerland, whose federal structural complexity has forced it to consider explicitly the issue through the private international law Act of 1987, and this well before domestic arbitration was governed by the Code of Civil Procedure. Even Venezuelan private international law legislation, with a propensity for expansion, excludes arbitration from its scope of application and follows the practically unchallenged model, especially in Latin America, with a special arbitration law. The new Panamanian Code of private international law of 2014, referred to below, is another example of the disadvantages of the inclusion of this matter.

This is not so with the rules governing the situations in which the courts of member States of OHADAC will have international jurisdiction for legitimately exercising their jurisdiction. The Model Law, in this case, deals in detail with such regulation.

B) Contribution of private international law

25. As has already been suggested in the analysis of each factor studied, a comprehensive response makes it necessary to provide each State, its legal operators and any specifically targeted individual or company with a regulatory instrument composed of modern and simple rules adapted to the requirements of the new era and to the models created by globalisation in general and the regional integration movements in particular. In this regulatory instrument, accompanied by mainly public or vertical relationship measures between the State and the private legal operator, we need concrete rules that provide clear and predictable responses to the specific features of internationality of relations between individuals. There also need to be rules of private international law which address aspects of the international jurisdiction of the Caribbean courts regarding litigation between foreign businesses, or just between individuals, regardless of their nationality, while applying a sufficient dose of internationality. There also need to be specific private international law rules for determining the law applicable to international transactions, but also to matters raised simply by the extraneous nature of the situation and which are not necessarily subject to local law, as is the case in family relations. And finally, we need rules that deal with the enforcement of foreign judgments in the countries and territories. In this way, each country in the region will be able to advance in the position assigned by the International Finance Corporation in the report Doing Business 2014.

To approach this task, and as a general principle, national legislators have a wide margin of discretion. In these areas, the limits imposed by the rules of general international law are very weak, given the regulations in nationality law and in the law on the legal status of foreigners. These limits logically result from the international norm on the rights and freedoms of human beings which materialise, on the one hand, in accordance with the principles of legality, legal protection and, in particular, equality, prohibiting any legal discrimination for reasons of birth, race, sex, religion, among others things50; and on the other hand, with respect for everybody's right to have their legal personality recognised, which ensures the protection of their rights by the courts and is reflected in procedural equality (access to justice) abroad when they appear before a national court. For its part, public international law also imposes some limitations on the national legislature regarding the establishment of rules of jurisdiction of its national courts relating to referral to them where foreign elements are present. These limits are the most glaring manifestation of the principle of immunity of jurisdiction and immunity of enforcement of the foreign State, its institutions and its agents.

Beyond these limits, the power of discretion is the rule and this rule can only be tempered for humanitarian reasons, reciprocity and, above all, for reasons of international comity arising from the obligation of effective cooperation of States with regard to the international exercise of justice.

26. Private international law has long been an essential instrument for governing relations between people and international assets. It facilitates the mobility of people and the exchange of goods and services. It promotes integration and also combats illegal border activities. In the broadest sense, it defines the set of legal rules governing relations between persons governed by private law. However, it should be clarified in order to understand the content of the Model Law presented that the term “private international law” does not mean the same thing in all States. In some States, it includes the conflict of laws rules (determining the law applicable to private international law situations). In other States, it additionally comprises the rules on the jurisdiction of courts and the recognition and enforcement of foreign court judgments. These rules relating to the applicable law, international jurisdiction, and to the recognition and enforcement of foreign judgments provide solutions to challenges posed by the same situation which can be related to various legal and judicial systems. These rules show precise correlations that advocate a private international law at the crossroads of all of them.

The private international law rules have their origin in the law, court rulings and legal literature of each State. Despite its name, private international law is, in principle, purely national law. Some of these national rules can be standardised by international agreements or instruments developed within international organisations, on a global scale, v.gr., the Hague Conference on Private International Law or, in the Pan-American context, the Specialized Conference on Private International Law (CIDIP).

The existence of private international law is justified by the plurality of legal systems and jurisdictional organisations coexisting in a context of international relations and, specifically, one of the main features is the establishment of a set of legal responses to this pluralism51. If such pluralism does not exist, due to the unification of the law of the various States, it would serve no purpose for the legislature to be responsible for resolving these issues by developing a regulatory system in private international law. And this regulatory system would not be of any use, either, if the legal relationship remained confined to a particular legal system, without any connection with foreign countries. A country that does not experience any foreign trade, which does not welcome immigrants and other foreigners for short stays, which does not have emigrant nationals living abroad, does not receive a significant foreign investment flow, does not have any specific problems relating to private international law relations and, therefore, does not need a set of rules that provide a response to these problems. This situation has occurred in many States, not only in Latin America and the Caribbean but also at other latitudes. However, isolation and autarky have been firmly surpassed by the current widespread internationalisation of legal relations of private law. Today, it is almost impossible to find a State in which internationalisation has not gained a foothold in private relationships. This fact, however, has not led to an identical response on the part of legislators, quite the contrary. Comparative law cautions against the diversity of regulatory modes: starting with the absolute silence of some legislators and going to the existence of a detailed and comprehensive national law assuming responsibility in an international context, and on to providing specific responses to social and economic needs.

27. From the above, it follows that on the Latin American stage there is a strong tendency to create integrated economic areas, which leads to important consequences not only for economic development and for the increase of the level of resources in the areas concerned, but also for private international law relations52. If we take the two most notable experiences, this phenomenon is noticeable in NAFTA, particularly in the area of “intra-Community” trade operations and in the Mercosur area, and particularly in the areas of international judicial cooperation, protection measures, and the recognition and enforcement of foreign judgments (through the Firewood Protocol, of Ouro Preto and Buenos Aires)53. However, with all of the significance that the phenomenon already knows about and which is likely to increase in the future, the relationships between economic integration and private international law are much more distant than in other locations of advanced integration as is the case of the European Union.

The causes of this situation are not readily comprehensible and can be explained synthetically by three main reasons. Firstly, the institutional mechanisms that exist in America are reduced in the face of the complex and consolidated apparatus that governs the EU in a long regulatory tradition with specific techniques, which in recent years have moved towards an ultra-efficient legal unification through regulations. Secondly, this is explained by the fact that in Europe, unlike what happens in the process of integration in America, since the entry into force of the Single European Act, an “internal market” has been created based on fundamentally different assumptions. By moving beyond the principle of free trade, the “internal market” was designed as an integrated market and was accompanied by a highly developed approximation of national laws54. Finally, this political will has led to a rapid development of the private international law of the European Union through the “Third Pillar”55 and communitisation, which has followed the constituent fields of a genuine area of freedom, security and justice. This dichotomy between the two sides of the Atlantic does not just focus on theoretical and descriptive aspects but clearly reveals the confrontation of the “blocks” (especially the EU and NAFTA) that was seen in the Hague Conference on Private International Law during the drafting of the Universal Convention on the Recognition and Enforcement of Foreign Judgments.

Besides these differences, which can be explained by historical reasons and by the level of integration of each block, there are common problems. For example, the harmonisation of private international law systems requires reconciliation between the system of statute law and common law for NAFTA or for the Caribbean integration organisations. This is the case in the European Union, which has been in a period of significant technical problems. But today some member States (such as the UK or Ireland) have a special status in the creation of the area of freedom, security and justice, in which their culture and their legal tradition - in addition to other factors - constitute an essential element.

II. Diversity and legal heterogeneity in the OHADAC area

1. States and territories involved56

28. In contrast to the essentially common tradition of the constituent States of the OHADA zone, the OHADAC project has been confronted from the outset by the diversity and heterogeneity of the countries of the Caribbean. If we look at the island or archipelagic countries, we find territories still subject to or dependent on the sovereignty of European States. This is the case with the French overseas departments (Guadeloupe, Martinique, the collectivities of Saint Martin and Saint Barthélemy). It is also observed on the islands belonging to the Netherlands Antilles - with a new political status since 10 October 2010 - namely Bonaire, Sint Eustatius and Saba (constituent countries of the Kingdom of the Netherlands), and also, but as autonomous territories of the Netherlands, in Curaçao, Aruba and Sint Maarten. British overseas territories are Anguilla, Caiman Islands, Turks & Caicos Islands, British Virgin Islands and Montserrat, to which one might add Bermuda, despite its geographic location. Puerto Rico is a commonwealth, an unincorporated territory of the United States of America, just like the U.S. Virgin Islands. Independent countries or territories include important States with a Spanish tradition, such as Cuba, or with a French tradition, like Haiti, and others such as the Dominican Republic, whose legal tradition owes much to French law, despite the predominance of the Spanish language. Within the common law sphere there are other independent island territories, for the most part associated with the Organisation of Eastern Caribbean States (OECS) or dependent on the Anglo-Saxon tradition even though they do not form part of that organisation, but are members of the Commonwealth (Bahamas, Barbados, Jamaica and Trinidad and Tobago). In short, the OHADAC area comprises at least 18 sovereign island States, which include 31 different territories with languages and legal traditions linked to four mother countries: Spain, France, the United Kingdom and the Netherlands. Their population exceeds forty million inhabitants, half of whom speak Spanish, one quarter French, almost the same number English and a minority (around 1%) Dutch.

The model is replicated in the case of the coastal continental territories of the Caribbean, although in this case we are mostly speaking about independent States, both in terms of geographical area as well as population, with a Spanish-speaking and Hispanic tradition: Colombia, Costa Rica, Guatemala, Honduras, Mexico, Nicaragua, Panama and Venezuela. Some of them, such as Panama, have been permeable to the Anglo-American legal influence, especially in the commercial sphere. The French tradition is represented by a French overseas department, French Guiana. Suriname, an independent State, bears witness to the Dutch legacy. Finally, the English influence is present in Guyana and Belize, both independent States that are part of the Commonwealth. In total, there are 11 new independent States (12 territories). It is difficult to calculate the coastal population of the continental States of the Caribbean, whose total population reaches very high levels, in excess of two hundred million people, who are overwhelmingly Spanish-speaking.

29. This brief and superficial geographical overview confirms the political and cultural plurality of the OHADAC territory, composed of 29 independent States covering 43 different territories. In political terms, OHADAC covers one sixth of the States that form the international community, and around 260 million inhabitants. The cultural and linguistic legacy of these countries is different, as is the degree of proximity to their former mother counties. While the Spanish-speaking States have a long tradition of independence, dating back to the nineteenth century in all cases, many territories of the French, English or Dutch tradition are still part of metropolitan States or have achieved independence in the second half of the twentieth century. Such diversity of political structures has a bearing on a strategy for the harmonisation of laws. Unlike in the case of the OHADA zone, we are not talking about independent countries with a more or less autonomous tradition within the French sphere of influence. It is sufficient to think of the problems that would be created by the possibility of redrafting an international treaty with the same scope as the OHADA Treaty. The OHADA zone could have been constituted merely with the technical and financial support of France. The OHADAC project, however, will require the significant contribution of other countries such as the Netherlands, the United States and, especially, Spain and the United Kingdom.

30. The challenge likewise needs to be based on recognition of the cultural diversity in the Caribbean region, which has often meant that people in its territories are geographically very close while disregarding one another, adversely affecting their common strategic interests. As it has been pointed out, the island and archipelagic States exhibit great linguistic variety: Spanish, French, English and Dutch, not counting the indigenous languages that are especially relevant on the continental territory, or hybrid languages (in particular Creole). Spanish clearly dominates on the continental territory, and even in countries such as Belize, where the only official language is English, Spanish is commonly used. But Dutch (Suriname) and French (French Guiana) are also used. Such linguistic diversity, which is not necessarily cultural, however, heralds significant variations in the legal sphere that are not always apparent.

2. Overview of private international law and its projection into the OHADAC zone

A) Review of the unification and implementation of national solutions

31. Combined with fact of their effective application in many OHADAC territories, any modern comparative study on private international law rules and the systems of integration must be preceded by an analysis of the results achieved in the process of unification instituted in the framework of the European Union. The current development of European Community private international law was facilitated by the introduction of Title IV in the EC Treaty arising out of the Treaty of Amsterdam. The European Community's competence in the area of judicial cooperation in civil matters entailed the integration of the former third pillar into this new Title. As a consequence of the provisions of article 65 TEC (now Article 81 TFEU), some of the existing agreements or drafts of agreements on private international law matters were “communitised” and European Community acts were adopted in other matters57: Regulation (EC) No 44/2001 of the Council of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, which, from 10 January 2015, has been replaced by Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012; Regulation (EC) No 1346/2000 of the Council of 29 May 2000 on insolvency proceedings; Regulation (EC) No 1348/2000 of the Council of 29 May 2000 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters, amended by Regulation (EC) No 1393/2007 of the European Parliament and of the Council; Regulation (EC) No 1347/2000 of the Council of 29 May 2000 on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility for children of both spouses, amended by Regulation (EC) No 2201/2003 of the Council of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility; Regulation (EC) No 1206/2001 of the Council of 28 May 2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters; Directive 2002/8/EC of the Council of 27 January 2003 to improve access to justice in cross-border disputes by establishing minimum common rules relating to legal aid for such disputes; Regulation (EC) No 805/2004 of the Parliament European and of the Council of 21 April 2004 creating a European Enforcement Order for uncontested claims; Regulation (EC) No. 1896/2006 of the European Parliament and of the Council of 12 December 2006 creating a European order for payment procedure; Regulation (EC) No 861/2007 of the European Parliament and of the Council of 11 July 2007 establishing a European Small Claims Procedure; Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations; Directive 2008/52/EC of the European Parliament and of the Council of 21 May 2008 on certain aspects of mediation in civil and commercial matters; Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I); Regulation (EC) No 4/2009 of the Council of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations; Regulation (EU) No 1259/2010 of the European Parliament and of the Council of 20 December 2010 implementing enhanced cooperation in the area of the law applicable to divorce and legal separation; Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession. This competence does not only relate to the specific areas of international civil procedure law but also extends to the scope of applicable law, as evidenced by article 81.2º.c) of the Treaty on the Functioning of the European Union. These comprehensive measures aim to ensure greater legal certainty, as well as equality of access to justice, which involves the easy identification of jurisdiction and applicable law, as well as the more expeditious trials and procedures.

32. On the basis of this normative block, and its relevance for the drafting of domestic private international law rules, it should be noted that:

  1. i) Despite having a clearly patrimonial origin, as a result of having been started as an instrument intended to give impetus to the establishment of a Common Market, the unification has gone far beyond this matter, after the consolidation of the European Union and, in this, of the so-called area of freedom, security and justice. This unification spreads to non-patrimonial areas, such as the protection of minors, marriage, divorce or succession, and this expansive tendency has not been halted. All of these matters are regulated from the perspective of international jurisdiction, applicable law and the recognition and enforcement of judgments and, in some of them, the component of collaboration and cooperation between authorities is crucial to the achievement of the defined goals.
  2. ii) As the unification process has not been completed, two systems of private international law coexist in the member States: the system formulated in the Union, which covers the great bulk of the regulation, and each State's own system, which affects matters that are not unified. It is in this residual area, in which the member States retain their jurisdition, that, in recent times, a genuinely national system of private international law can be fully justified.

B) National models of private international law codification

33. Either because a full measure of unification of private international law has not been achieved, or for reasons of tradition or necessity of each State, the truth is that, in recent years, State legislators have continued to implement their own private international law. The last fifty years have been one of the most productive periods in the history of private international law, for having resulted in 61 State codifications and more than one hundred international conventions, regulations and other similar instruments, which give a greater role to judges compared to the previous instruments58.

A review of the national codification models of private international law must, in the first instance, refer to the systems based on a special law, which have been developed mainly in Europe, although, as will become apparent59, have been favourably received in Venezuela and most recently in Panama. This codification alternative records the fact that “conflict of laws” rules are gradually disappearing from Civil Codes in order to be integrated into special laws; this tendency, which began in the group of former socialist countries60, is to be extended and generalised in other legal circles and appears in ongoing codification projects. Beside the experiences in Louisiana61 and Quebec62, in Western Europe there is, indeed, a marked tendency towards specialisation with regard to the regulation of international legal transactions regardless of the venue chosen for implementing it, as was demonstrated by the Austrian Act of 15 June 197863, the Turkish Private International Law Act and the international procedure of 20 May 198264 and, above all, the modern codification paradigms, from Switzerland, Belgium, Italy and Poland.

  1. i) The Swiss Federal private international law Act of 18 December 1987 is a genuine code of private international law featuring 200 articles and which, after a long and laborious process of development, without doubt can be considered as a technically perfect text adapted to a particular country's needs in relations of international legal transactions. It offers many innovations, from its inherent structure, broad content not only focussed on the area of applicable law, and the solutions that it incorporates, including the institutions that it introduces, whose confluence between the North American and European65 doctrines will inspire the subsequent codification of private international law in many other national systems.
  2. ii) Meanwhile, the Belgian Act of 16 July 2004 introduced another complete Code of Private International Law, regulating 140 articles. It entails a radical reform of the rules of legal or doctrinal origin or resulting from established court rulings, in cases of an “international situation”, the jurisdiction of the Belgian courts, applicable law and the enforcement of acts and foreign judgments in civil and commercial matters66. This Code is characterised by its practical response to the above matters, fleeing needless academic considerations through pragmatic and flexible rules. In an effort to ensure modernisation, the Code has assumed a significant change in the traditional regulation of private international law, recognizing the significance gradually being gained by the principle of proximity67 and that in the matters related to personal status the main connecting factor must be the habitual residence at the expense of the nationality68. Finally, it takes into account the situations produced by the evolution of society (marriage between persons of the same sex and non-marital unions) and shows of a spirit of internationalism by allowing the automatic recognition of foreign judgments69.
  3. iii) The private international law relationships in Italy are governed by Law No. 218 of 31 May 1995, which replaced articles 16 to 31 of the provisions of the law generally laid down in the Civil Code. The Italian private international law Act (Law No. 218, of 31 May 1995) includes five Titles and comprises 74 articles. Title I (“General provisions”) determines, on the one hand, matters governed by the Law, following the tripartite scheme currently admitted: determination of the scope of jurisdiction, determination of applicable law and the regulation of the enforcement of judgments and foreign acts, and, on the other hand, the preference for international treaties. Title II (“Italian jurisdiction”), after establishing the scope of the jurisdiction and its limits, focuses on important issues such as prorogation and derogation of jurisdiction, actions in rem concerning immovable property located abroad, the application of the lis pendens principle to foreign proceedings and non-contentious jurisdiction, protective measures, the pleas as to lack of jurisdiction, concluding with the confirmation of the rule of lex fori regit processum. Title III (“Applicable law”) begins with a chapter dedicated to the general problems of application of the conflict rule expressly considering renvoi, the application of foreign law, the interpretation and application of foreign law, public policy, the rules of necessary implementation, the legal systems with more than one system of law, concluding with the answers to the questions of the law applicable to stateless persons, refugees and positive conflicts of nationality. Then are some solutions for the capacity and rights of natural persons, simultaneous death, disappearance, absence and presumed death, the capacity of natural persons to exercise rights, rights of personality, companies and other legal persons; subsequently, attention is given to family relationships following the classic pattern of the principles concerned by combining the solutions in relation to applicable law with those in relation with jurisdiction, and ending with the rules under the succession regime. The chapter on property ownership begins with the consideration of the rights in rem, with a thorough treatment of issues such as goods in transit, rights in respect of intangible property or disclosure of acts relating to rights in rem. After a study of donations, the chapter on contractual obligations is directly inspired by the Rome Convention with regard to which “incorporation by reference” is established; then are some answers to the questions pertinent to non-contractual obligations. Title IV (“Enforcement of foreign judgments and public documents”) begins with the consideration that foreign judgments are recognised in Italy without the need to have recourse to a specific procedure if a certain number of conditions are met and, after setting out the rules on the matter, focuses on the implementation of the public documents issued abroad and on the admission of means of proof requested by the foreign judge. The Law concludes as usual with the transitional and final provisions.
  4. iv) Among the most modern texts is the Polish private international law Act of 4 February 201170, which replaces the Law of 12 November 1965, which, in turn, had replaced the Law of 2 August 1926 as Poland has been a pioneer of private international law systems, with a commitment towards a special law. Its most important features are: its strongly civil law nature, although there is an inevitable treatment of issues of commercial law; its limitation to the regulation of the problems related to the determination of applicable law and, within this, the establishment of the national law as the dominant connection (article 2), although article 4 admits a wide margin to autonomy of the parties in the choice of the law, provided that it does not harm the interests of third parties (article 4); finally, it is important to emphasise the use of the technique of “incorporation by reference” of texts from the European Union, notably in the area of contractual and non-contractual obligations. As a new development, article 67 includes the application of the law of the country to which the legal relationship has the closest connection, in the absence of references established by the Law under discussion or by the provisions of the European Union to which reference is made.

34. Starting from the special law, private international law not only gains material autonomy, but provides the possibility of a thorough regulation of matters, which, thus far, had remained in the orbit of the development of court rulings. This technique, however, is not exclusive but is combined with another technique, which can be classified as “partial codification” and offers three primary manifestations. The first one, which is widely criticised, is to take advantage of the successive reforms of substantive law to introduce private international law rules71; the second one, a questionable system, consists of using any source of reform, whether substantive or concerning conflicts of laws, to introduce private international law rules72; finally, a third way can result of the reform all of the rules of private international law scattered in various legal corpora which, while remaining at their original seat, are modified harmoniously; this is the route followed by the legislator of the Federal Republic of Germany in 1986.

Besides the “special law” model, there are still systems that use Civil Codes as a basic text for including a broad area of the precepts of private international law, mainly relating to applicable law. This has been the original codification system of the private international law rules, with the three aforementioned models: the system of the French Civil Code of 1804, the Civil Code of Piedmont of 1865 and the Introductory Act to the German Civil Code (EGBGB) of 1896 and with an important projection in the Spanish system of the Preliminary Title of the Civil Code of 1974. Meanwhile, the “model” of a technique of this kind is, without doubt, as has been pointed out, the Portuguese Civil Code of 1966, which dedicates Chapter III of Title I of its Book I (articles. 14 to 65) to regulating the “rights of foreigners and conflicts of laws” (“Dereitos dos estrangeiros e conflictos de leis”), with a proper and comprehensive system and detailed treatment of the specific problems for the time in which it was drafted73. The scope in which the “model of the Civil Code” has been developed is not, however, exclusively of the European continent. If we move to the American continent and, specifically, to the group of Latin American countries, we can still note the past inertia with the Civil Code as a principal seat of private international law rules, above all concerning the area of applicable law. The said tendency, however, undergoes various deviations, since in some Civil Codes substantial reforms are occurring given the modern trends of private international law, as shown by the reform of the Peruvian Civil Code carried out in 1984 (articles 2046 et seq.), which replaced the so-called “Benavides Code” of 1936 and which dedicated its Book X, which is the last one, to private international law, thus eliminating the narrow margin offered by the Preliminary Title74. As seen before, this tendency would be followed in Quebec and is currently being implemented in Argentina.

35. In the review of the “models” of the national codification of private international law, it is necessary to exclude the problem-solving techniques used in Anglo-Saxon countries, since these are based on very different hypotheses, in particular, the adoption of common law. Nonetheless, despite the mentioned impact of common law particular mention should be made of the work carried out in the United States by the American Law Institute which, through two Restatements of 1934 and 1969, has systemised and organised the principal judgments on private international law. Despite their eminently doctrinal nature, the Restatements in practice constitute authentic codes of private international law, which have exerted a notable influence in recent times, not only in the national codification in Europe, but in the international codification of private international law. The texts set out offer a substantially diverse content. With a very classical content, Restatement (First) (very much influenced by the work of J.H. Beale) was characterised by the use of very rigid solutions which were called into question by North American court rulings (cases Auten v. Auten, Babcock v. Jackson); it was a driving force for the development of Restatement (Second), whose solutions, use of flexibility and realism, are one of the masterpieces of our times for the solution of the problems of international transactions. The fact that these solutions have been accommodated in such diverse systems as those of the European continent shows that they correspond to the societal reality of our times75.

These remarks help us to evaluate the special situation of Puerto Rico. The private international law of this territory is mainly found in the Civil Code, and, in a complementary manner, in other provisions. The principles of the Civil Code correspond to the original version of the Spanish Civil Code of 1889, which are, in turn, a juxtaposition of the statutory orientation of the French Civil Code of 1804 and the concerning conflicts of laws outlook of the Civil Code of Piedmont of 1865, specifically article 9, 10 and 11, which are included in its preliminary provisions76, provide a response to the so-called “personal status”, “in rem status” and “formal status”. The current Civil Code, moreover, contains other private international law provisions interspersed between substantive provisions, for example, the last sentence of article 68 (non-recognition of same sex marriage celebrated abroad), article 127 (law applicable to the economic regime of the marriage celebrated abroad), article 97 (jurisdiction for divorce), article 666 (law applicable to the form of a will drawn up outside of Puerto Rico), article 667 (prohibition of a joint will drawn up outside of Puerto Rico) and article 638 (place of drawing up a will and language of the holographic will). The virtues and the defects of articles 9, 10 and 11 of the current Civil Code have been the proponents of Puerto Rican private international law and have marked the development of this matter. These brief articles originate from the Spanish Civil Code of 1889, which, in turn, is based on the French Civil Code of 1804, and its background can be identified in the Italian Civil Code77. However, in the revision made in the Civil Code in 1902, the commissioners who had been trained in Anglo-Saxon law decided to “americanise” these articles. In this way, they suspended the former civil-law principle of the unity of the estate and replaced it with the American rule of lex rei sitae. Furthermore, they eliminated an article that could have provided a basis for the solution of conflicts in relation to non-contractual civil liability. Despite these incursions of Anglo-Saxon law, the remaining three articles of the Civil Code of Puerto Rico were not more deficient than other similar provisions of some civil codes of the French or Latin legal family. These articles have for some time performed the role that was expected of them, especially due to the corrective and supplementary function of Puerto Rican court rulings, which is discussed further below.

Currently, however, more than one hundred years after the revision of 1902, it is evident that articles 9, 10 and 11 of the Civil Code have exhausted their social utility and have become an impediment to progress. The need to overcome this impediment is essential and therefore it is not by chance that all of these jurisdictions of Romano-Germanic orientation which have similar provisions have replaced them with modern codifications of private international law, an important task which ought to have been done in Puerto Rico a long time ago. As can be seen, the articles on private international law of the current Civil Code are scarce, brief, elliptical and outdated, and consequently the Supreme Court has been forced to complete, partially, the task of modernising and supplementing them. Puerto Rican court rulings on private international law have been characterised by the presence of two principal dichotomies: between “the Spanish” and “the United States” and between “the codified” and “the non-codified”78. On the other hand, in areas not considered by the provisions on private international law of the Civil Code, the court rulings were free to move, gradually, from the traditional focus to the modern focus of this matter, without the limitations of outdated legislative rules. Like in the United States of America, the transition from one focus to the other, which commenced in the 1960s, was completed in the 1970s and has been limited, mainly, to conflicts of laws in relation to contracts and non-contractual civil liability. The other dichotomy present in the Puerto Rican court rulings on private international law stems from fact that the rules legislated in this matter do not cover the complete spectrum of possible problems. Thus, for example, these rules do not deal with the conflicts of laws in relation to non-contractual civil liability or, for the most part, with the conflicts in relation to contracts. Due to this dichotomy, the Puerto Rican court rulings have had to proceed in two directions. In the area covered by the rules of the Civil Code on private international law, the court rulings have followed these guidelines sufficiently accurately, as was to be expected in an originally civil-law system, and at the same time, they have conscientiously attempted to temper their rigidity.

36. Still with regard to this part of the Atlantic, an evaluative assessment of the process of international unification of private international law in Latin America, in turn, records a series of relevant data that do not have a static nature, but are elements arising from a very specific time in history and, as such, are liable to variation according to the characteristic globalisation and regionalisation processes of the international society of our times. Generally speaking, it should be appreciated that it is an expansive phenomenon: the experience of unification in this area79, above all in the wake of the enormous work of institutions like the Inter-American Specialized Conference on Private International Law, is clear proof of this phenomenon80. It precisely defines a revitalisation of the use of the compared method that is a much more developed phase of the knowledge of foreign law with which it tends to be confused81. The reinforcement of the so-called “units of comparison” and the selection of matters for unification are indispensable elements for ensuring that the unification work will bear fruit without sacrificing the idea of justice for the sake of the uniformity82. Many large unification projects are condemned to failure due to their ambitious objectives and the interests in question before the attempts at a dominant implementation of a particular arrogant option. And it should not be overlooked that the fact that there is a substantial incompatibility between the particularist legal approach and the idea of codification83. The right point of balance or compromise must be reached.

37. In this comparative context, different models of regulation of private international law exist in Latin America. A first group is characterised by the spread of the system of private international law in different legal corpora.

  1. i) Colombia does not have a complete and integrated system of private international law. The regulation of the different areas (international legal jurisdiction, applicable law, recognition and enforcement of foreign judgments) is found in various rules that are not very adequate for the resolution of various problems of private international relations. In addition to this fragmentary and anachronistic nature of private international law deriving from a national source, bilateral and multinational agreements exist, whose criteria of application in most cases do not appear to be clearly established in their own instrument. In fact, the presence, in these instruments, of provisions on their territorial scope appears almost exceptional, and consequently their applicability is uncertain, at least with respect to those that regulate international legal jurisdiction84and applicable law85. The national rules are found dispersed throughout the Colombian legal system especially in the Civil Code (Law 57 and 153 of 1887), the General Code of Procedure - CGP (Law 1564 of 2012), the Substantive Labour Code (Decree Law 3743 of 1950) the Code of Commerce (Decree No. 410 of 1971) and some ratifying laws of international treaties on the matter.
  2. ii) Since the action of the treaties on the subject is limited, the Cuban System of private international law is essentially based on a series of provisions dispersed in the Civil, Administrative, Labour and Economic Procedure Act of 19 August 1977, to which the term “Economic” was added in 200686 (LPCALE), and in the Civil Code of 1987 (Law No. 59), which are structured in the following manner: a) international legal jurisdiction: articles 2, 3, 4 and 372 and 739 LPCALE87; b) applicable law: articles. 11 to 21 and special provisions of the Civil Code and article 244 LPCALE; and c) recognition and enforcement of judgments: articles 483 to 485 LPCALE. And in addition to these we must mention a series of procedural provisions on foreigners included in the LPCALE: articles 174, 230, 250, 290, 339 and 53088. It is thus a model of regulation of a variable nature similar to that maintained in Spain up until the end of the 1980s.
  3. iii) The system currently in force in Mexico is based on the interaction between the rules contained in the Civil Code and those arising from a convention after a massive incorporation of international treaties that began in the decade of the 1990s. The reforms carried out in the civil legislation89, from 1988, laid the foundations for eliminating the prevailing legislative backlog in the area of private international law in Mexico, thus uniting it with the prevailing codification movement in the global economic powers, and managing to implement the applicable international legal corpora on the matter90. However, this system continues to be characterised by a normative “morass”, which is difficult to follow and can even less be coherent from the very moment in which there are contradictions between the statements in one rule and another, either autonomously or based on a convention91.
  4. iv) The Dominican Republic also does not have a special law which regulates, at least, a substantial part of the problems of private international relations92. No regulation of the matter of international legal jurisdiction exists, apart from the provision in articles 14 and 15 of the Civil Code93 (article 16, related to the cautio iudicatum solvi, was modified by the Law 845, of 197894). In light of the lack of express rules in the Code of Civil Procedure, the legal practitioners must refer to the review of the entire body of court rulings of the Dominican courts, which reflects a rather confused and misleading picture95.This construction points to the existence of two general criteria: on the one hand, the independence of the treatment of conflicts of laws and jurisdictional conflicts and, on the other hand, the dominant character of the Dominican jurisdiction, which is regarded as being completely unwavering. For the Dominican courts, the solutions in this area respond to a broad concept of the idea of jurisdiction, in which this appears intimately connected to national sovereignty. This is seen clearly in: i) the pure and simple transposition at the international level of the vis atractiva, namely of the ordinary jurisdiction established at the domestic level (article 59 of the Code of Civil Procedure) to affirm, in this way, the exclusive and exclusionary nature of the national jurisdiction over foreign jurisdictions to decide the civil matters arising in the Dominican Republic96; ii) The attribution of jurisdiction of the Dominican courts may have a derogatory effect on the private will when the parties submit to a foreign court97.From the perspective of applicable law, the system resolves around article 3º of the Civil Code, whose inadequacy has not been remedied by other subsequent provisions. The obsolete nature of the regulation of the questions of applicable law is due to the fact that the solution introduced in article 3 of the Napoleonic Code of 1804 still remains faithful heir to the so-called theory of the statutes. Even without the necessary impact, the unilateral nature of the precept has been bilateralised by Dominican court rulings, by admitting, for obvious reasons of reciprocity, the application of foreign law when the claim comes from foreign jurisdictions. Among the subsequent provisions, it is worth mentioning the so-called “Quick Divorce Law” (“Ley de divorcio al vapor”, Law 1306-bis, of 21 May 193798, modified by Law 142 of 4 June 1971) governing a procedure of divorce by mutual consent especially instituted for foreigners or Dominicans not resident in the country. It was the fruition of a period in decline that must be overcome, besides its problems of a confessional nature, as evidenced by Resolution No. 3874 of the National Congress, which approved the Concordat and the Final Protocol signed between the Dominican Republic and the Holy See of 16 of June 1954. It should also be mentioned that Law No. 136-03 created the Code for the Protection of the Fundamental Rights of Children and Adolescents, of 7 August 2003, together with some other isolated provisions and, subsequently, with the entry into force of Law No. 489-08 on Commercial Arbitration. This last provision, directly inspired by the UNCITRAL Model Law of Commercial Arbitration of 1985, is completely adapted to the provisions that exist in other legal systems favourable to arbitration. Finally, great inaccuracy exists with regard to the recognition and enforcement of foreign judgments. Traditionally, the rules on exequatur contained in the old Code of Civil Procedure99 have been applied, until the amendment made by Law No. 834/1978, whose article 122 provides that “The judgments handed down by foreign courts and the acts received by foreign officials are executory in the territory of the Republic in the manner and in the cases provided by the law”. The maintaining of the above-mentioned regulation is questionable since that law does not include express derogations, its article 142 merely declaring “all of the laws and provisions of the Code of Civil Procedure relating to matters dealt with in the present law shall be repealed and replaced”. And it is unlikely that the matter will have an immediate solution due to the paralysis of the reform initiative of the Code of Civil Procedure of 2010, which included an express regulation of the matter100. It should be noted that the said article 122 merely establishes a referential framework, without specifying whether the request of the interested party will have to be regulated by contentious protocol, by citation to the other party, or by the non-contentious procedure, inauditan partem.

38. Besides the group described, there is another group, currently in the minority, and which includes Venezuela and Panama, that has preferred to abandon the regulation contained in the Civil Code, as is the case in other legal circles, and to regulate the matter by a special law. Specifically, Venezuelan law determines the scope of the jurisdiction; it sets out the criteria for the determination of applicable law and regulates the enforcement of foreign judgments.

  1. i) In the decade of the 1990s, on the initiative of Gonzalo Parra Aranguren and Tatiana Maekelt, the Private International Law Act was approved on 6 August 1998 and entered into force on 6 February 1999101. The Law maintained the basic provisions of the draft law of 1965 and was adapted to new laws currently in force in Venezuela and to the updates of its original rules that were made in the framework of the Inter-American Specialized Conference on Private International Law (CIDIP). Furthermore, in its articles, it reflected the evolution of Venezuelan doctrine and court rulings. Its main objectives were to eliminate the problems caused in the Venezuelan system by the statutory method, the scarcity and the dispersion of rules, the adoption of nationality as the connecting factor for regulating personal status and the antagonistic hybridism established by article 8 of the Venezuelan Civil Code. Prior to the Panamanian Code of 2014, the Law was the only special law in America, reconciling the lessons of the contemporary doctrine and the comparative law to the historic, social and human data from the Venezuelan reality. This instrument has a general nature and, in only 64 articles, establishes rules on its general principles (articles 1 to 15); applicable law in relation to natural persons (articles 16 to 19) and legal persons (article 20); family relationships (articles 21 to 26); assets and rights in rem (articles 27 and 28); contractual obligations (articles 29 to 31) and non-contractual obligations (articles 32 and 33); succession (articles 34 to 36); form and proof of acts (articles 37 and 38); courts and territorial jurisdiction (articles 39 to 52 and 56 to 58); international judicial cooperation (article 59); recognition and enforcement of foreign judgments (articles 53 a 55); and, finally, rules on the procedural treatment of foreign law (articles 60 and 61). The adoption of the domicile as the connecting factor for regulating the capacity of natural persons (article 16) signifies a profound and fundamental reform of the Venezuelan system of private international law, as it leads to abandon the link to nationality, an inherent factor of countries of emigration, mainly European, to bring us closer to the American legal systems, which are characterised by immigration102.
  2. ii) On 27 August 2009, Professor Hernán Delgado presented the preliminary draft private international law Act to the Commission on Government, Justice and Constitutional Affairs of the National Assembly of Panama. This draft law contained 190 articles and its inspiring philosophy was the protection of the interests of Panamanian nationals, tolerance and the coexistence of foreign laws and national jurisdiction when this is competent in the transactions of international legal relations. It also aimed to fill the legal vacuum existing until then regarding the systemisation of this area of the legal system, which was dispersed in various legal texts, hindering knowledge not only for the legal practitioners but also for the Panamanian judge himself. The content of this codification work derives from the ideas of the Panamanian lawyer Gilberto Boutin, so that there is in Panama rather than a “Bustamantine” current (reference to the Bustamante Code), a “Boutinian” current, based on the influence that this lawyer has exerted on the construction of Panamanian private international law, who remained faithful to the Cuban jurist, as was reflected in the draft text. This initiative followed all of the relevant legislative procedures in the year 2012 resulting in a draft law, which led to the adoption of the Code of Private International Law of the Republic of Panama, where the above-mentioned provisions were replaced by articles 149 to 151 within the 189 articles that constituted the final version of the complex legislative process, the last of its provisions having a vacatio legis period of six months. The road to reform thus remained open. However, the Panamanian Constitution establishes a particular feature regarding the process of adoption of a law and which conferred to the President of the Republic the right to object to draft laws under paragraph 6 of article 183. And this particular feature was used on this occasion103. Such an intervention was not by chance. In parallel to the process described, on 26 February 2013 the draft law relating to national and international arbitration in Panama104, whose proponent was Professor Raúl Hernández105, was entered in the Commission on Government, Justice and Constitutional Affairs of the National Assembly of Panama. The result was Law 131, of 31 December 2013, which regulates national and international commercial arbitration in Panama106. The fate of the Private International Law Act thus appeared to be sealed, however, in the last few years of the mandate of President Martinelli, and to everybody's surprise, the rules on international arbitration have been maintained and the green light has been given to this initiative to adopt the Code of Private International Law of the Republic of Panama107. The Code comprises 184 articles and maintains a broad concept of private international law, which is evidenced by the matters regulated (legal jurisdiction, applicable law, recognition and enforcement of judgments and international judicial cooperation in civil matters) going beyond the framework of the modern legislations, extending to matters such as international arbitration (conflicting as is indicated with the Law of Arbitration of 2013), criminal law, in the most “Bustamantine” sense of the term, and to other matters of a commercial nature, such as international bankruptcy. The national law has a protagonist nature in the area of applicable law, although the Code gives a certain entry to the law of the domicile and the law of the habitual residence. As a curiosity, the Code introduces a general provision which goes beyond the issues addressed in a provision focused on the regulation of the matters of international transactions by categorically establishing that “marriage between individuals of the same sex is prohibited”; the polemic nature provoked by this kind of provision has obscured the overall assessment of this provision in the early stages of its period of validity.

C) Government bills and academic projects

39. Continuing in the Latin American legal group, it is especially interesting to refer to the already completed projects and those currently being developed in private international law in Latin America, which include the present draft Model Law.

  1. i) Through its 226 articles, the Draft Mexican Model Code of Private International Law of October 2006, with some highly ambitious codification objectives and with a formidable effort to achieve coordination of the preparatory studies, has a vocation to be applied to any matter, transaction or situation that is linked to any foreign legal system. It establishes the jurisdictional framework of the Mexican authorities, indicates criteria for the determination of applicable law and governs the recognition of judgments and foreign instruments. This instrument has many coincidences with the Model Law, not only in its tripartite structure (applicable law, competent jurisdiction and recognition and enforcement of judgments), although it is presented in different order, but also regarding the matters dealt with, in the use of the domicile as the dominant connection as well as, finally, in the abandonment of the inspiration of the Bustamante Code. The known differentials lie in the greater influence of the work of the CIDIP in the Mexican text108 and above all in the federal structure of the system, which has almost three hundred laws currently in force, a quarter of which bear any relation to private international law109. The Mexican State will only be able to ensure a regulation in conformity with article 17 of the Constitution if the latter matter is resolved - hence the option for a “Model Code”.
  2. ii) In Puerto Rico the draft text of the Book of Private International Law stems from a proposal developed between 1987 and 1991 under the auspices of the Puerto Rican Academy of Jurisprudence and Legislation (“the Academy”), at the time presided over by the former judge President of the Supreme Court of Puerto Rico, José Trías Monge. The proposal, titled A Project for the Codification of Puerto Rican Private International Law, was debated extensively, amended and adopted by a Special Committee of the Academy110 which included Symeon Symeonides, as a consultant of this Joint Committee and who produced a draft of an updated proposal that he presented under the title of A Bill for the Codification of Puerto Rican Private International Law111. Despite certain terminological similarities with other codifications, this is a truly different and independent Book. An example of its universality and its particularity is found in the general and supplementary article, which reflects that the objective of the process of determination of applicable law is to identify and apply the law of the State that “has the most significant connection to the parties and the dispute in relation to the problems concerned...”112. This Book of Private International Law incorporates the doctrine derived from the court ruling in Viuda de Fornaris and other cases of the Puerto Rico Supreme Court, develops it and adopts a less territorial and less quantitative focus. It is a perspective based on the Puerto Rican experience which, in turn, includes the best elements of both sides of the Atlantic, without blindly and automatically submitting to the United States or Spanish legal authorities. In accordance with the civil-law tradition of the Puerto Rico Civil Code, the scope and the structure of this Book only deals with the aspect of applicable law in the cases with foreign elements and not the matter of the interstate or international adjudicative jurisdiction, or the recognition of foreign judgments. This Book consists of forty eight articles organised in six Titles: Title I (“General Provisions”), Title II (“Family Institutions”), Title III (“Rights in Rem”), Title IV (“Law of Obligations and Contracts”), Title V (“On the Obligations Resulting from Fault or Negligence”) and Title VI (“Law of Succession”).
  3. iii) The legislative initiative of 2014113 proposes to correct this situation, as far as possible, to reach into the sphere of the private international relations the two supreme objectives of justice and legal certainty, the raison d'être of any rule of law, and adjust the provisions to the characteristics and needs of the social, economic and human reality of the Dominican Republic. More specifically, it is primarily a matter of resolving the problems of the system of private international law, characterised by its contradictions between article 3, with a strong statutory basis, and article 15 of the Civil Code with other provisions dispersed in other codes and special Laws114. It is, secondly, a matter of adjusting the private international law legislation to the social reality of the Dominican Republic and thirdly, of adapting the domestic solutions to the accomplishments achieved in the international codification, especially based on the experiences obtained in the Hague Conference on Private International Law at the global level and in the Specialized Inter-American Conference on Private International Law at the Latin American level. This must be done without losing sight of the solutions reached by the unification of the private international law of the European Union based on the genuinely European origin of the Dominican system. Finally, the Dominican solutions should be adapted in the universal development of the matter and to the most recent legislations, which have been converted into valid instruments for the harmonious development of the cross-border legal relations. The remarks made until now make it possible to establish the guidelines of the draft law, to justify the choice of a Special Law as an adequate legislative technique and the tripartite design of the matter regulated. It also makes it possible to glimpse the influences in the solutions adopted. It contains four Titles: Title I (“Common Provisions”); Title II (“Scope and Limits of Dominican Jurisdiction in Civil and Commercial Matters”); Title III (“Determination of Applicable Law”); and Title IV (“Recognition and Enforcement of Judgments and Foreign Instruments”).

40. The comparative review of these initiatives that are being developed in the Caribbean area identifies some discrepancies, but also points to the existence of many points of coincidence with which the Model Law is in conformity. And this coincidence is extended to other legislative aspirations developed with varying degrees of success in the American hemisphere.

  1. i) Among these a standout role is played by the laborious process followed in Argentina, with a proposed insertion in the Civil Code of a Book VIII including the private international law rules relating to international legal jurisdiction and to applicable law115; the Draft Bill does not deal with the problems of recognition and enforcement of judgments and extrajudicial decisions issued abroad. As its advocates recognise, it responds: a) to a conception of legislative policy strongly geared towards the process of integration in which Argentina is engaged; b) to the legal and ethical commitment “to guarantee the defence and the adequate protection of the weak sections of society”; and c) to the coordination with the requirements of conventional law that cannot be ignored116. The Draft Bill is composed of 130 articles which are accompanied by two precepts which include transitional provisions. The said articles are spread over four Titles. The first of them (articles 1 to 16) provides a response to the general problems of private international law through “general provisions” referring to the object, the scope of application of the Draft Bill and to the traditional questions of the topic. Title II provides the rules on legal jurisdiction through four chapters referred to in “General Provisions”, “Special Jurisdictions”, “Exclusive Jurisdiction” and “International Lis Pendens”, respectively. Title III deals with the rules on applicable law and is divided into fifteen chapters referring to the different matters systemised in: “Human Person”, “Legal Persons under Public law”, “Legal Persons under Private Law and Companies”, “Legal Acts”, “Contracts”, “Securities”, “Support Obligations”, “Non-Contractual Liability”, “Rights in Rem”, “Copyrights”, “Family Relationships”, “Protection of Adults without Legal Capacity not Subject to Parental Authority”, “Succession”, “Insolvency and Prescription”. Finally, Title Four comprises the “Transitional Provisions”117.
  2. ii) A further benchmark in any process of domestic codification in Latin American is the General Private International Law Act drafted in Uruguay118. It is an initiative which, as its own explanatory note declares, has moderate claims regarding the content of the matter: it claims to update the regulations from national sources by harmonising them with the regulations from international sources already ratified by Uruguay or in whose generation this country has actively participated through its delegations, notwithstanding the need to take into account the latest solutions of the regulations from national sources in the comparative law in order to guard against an irrelevant isolation. The influence of the codification work of the CIDIP is even greater than its Mexican namesake, but the influx of the Hague conventions on private international law is also very relevant. The draft bill, which claims to replace the current Appendix to the Civil Code, has three basic sections. Section one, referring to the general principles, comprises three topics: the benchmarks which must regulate the mechanics of application of the conflict rule, the impact had by the speciality of international commercial law regarding this topic, and the definition of the domicile as the basic connecting factor of the person always adopted by our system. This section one is an innovation compared to the rules of conflict from national sources, although not compared to international sources; the section two aims to establish the law applicable to the legal categories that have been adopted as references of the system and section three aims to establish the jurisdiction of the national courts in the international sphere. It is constituted by unilateral rules, characteristic of their jurisdiction conferring nature.

41. The picture would not be complete if it did not provide some examples of private codification of private international law implemented in Latin America.

  1. i) In the Colombian case, the proposal to develop a homogeneous body of legislation or law which groups together and completes the rules in relation to private international law found dispersed in the Colombian legal system stems119 not simply from the necessity to promote its unification, but to organise systematically the large number of rules of this nature that appear in it. Therefore, it became imperative to develop a draft bill structuring this normative unity, whose primary objective is to carry out the adjustments that are considered relevant for adapting the national legislation to the international practices currently being developed in the global context, and in this way to integrate the multilateral conventional rules currently in force in this legal system. This task has been undertaken by Professor José Luis Marín Fuentes of the University of Medellín, who has drafted a General Private International Law Act for Colombia120. It aims, among other objectives: a) to unify within a single body of legislation the various rules or regulations of public international law, which are not only found in the different codes but also in the texts of conventions ratified by Colombia; b) to have a clearer, more precise, coherent, ordered, easily consultable and easily applicable regulation in relation to the said matter; c) to facilitate legal openness in the international field, seeking to adapt Colombian private international law to the current changes that are taking place in the international legal, social and commercial sphere, d) to support a harmonious development of private international relations, as well as the migratory and commercial movements of the international arena; e) to clarify the current legal provisions, and at the same time to formulate simpler and more precise rules that regulate the more complex matters of this topic; f) to make all of this information more accessible to the persons who have a direct or indirect interest in the matter, no matter what speciality they belong to; g) to spread and develop the science of private international law in the Colombian legal sphere, thereby seeking a harmonious development of its rules, most of which form part of the national legal system. The outline of the project that it develops is as follows: after a chapter dedicated to “General Provisions”, it pays attention firstly to the problems of application of the rule of conflict, international legal jurisdiction and the validity of foreign judgments, and ends with the specification of the connecting factors with special emphasis on the habitual residence. In a second stage, the project grinds to a halt in the regulation of the specific institutions: natural persons, marriage, gifts, filiation, adoption, support, protection of minors, disappearance, absence and presumed death, succession, legal persons, commercial companies, assets, contractual and non-contractual obligations, non-contractual civil liability, intellectual property, insolvency, securities and prescription. The draft bill ends with a set of final provisions. It is currently being debated by the Colombian scientific community.
  2. ii) Outside of the Caribbean area, Bolivia has published the first version its Draft Bill undertaken by Fernando Salazar-Paredes, which follows very closely the general lines of the Venezuelan Private International Law Act of 1998. In the year 2005, the Faculty of Law of the Private University of Santa Cruz de la Sierra received a request of the author to discuss the Draft Bill in various panels as was the case on 11 May 2005, entitled “Draft Bill of a Bolivian Private International Law Act”. In Chapter I (“General Provisions”), after establishing the scope of application of the Law, the proposal is dedicated to the technical problems of application that result from the solution of the conflicts of laws which includes most of the principles of the Inter-American Convention on General Rules of Private International Law, which Bolivia signed in 1984. Chapter II (“On the Domicile”) refers to the rules of the domicile of natural and legal persons as a medium for determining applicable law or the jurisdiction of the judges or courts, establishing the place of the domicile of persons in general and then focusing on the special cases of conjugal domicile, that of minors and adults without legal capacity subject to parental authority or guardianship and, finally, the cases when a person is not considered to be domiciled. When regulating the general concept of the domicile, it was described through the term of habitual residence, which is easy to verify, as well as the special domiciles, which include that of the married woman, granting her full autonomy with regard to the domicile of the husband. Chapter III (“On Persons”) defines the law applicable to the existence, status and capacity of natural and legal persons, while Chapter IV (“On Legal Persons”) deals with the extraterritorial actions of legal persons both under public law as well as private law. For its part, Chapter V (“On the Family”) establishes law applicable to the validity and proof of marriage, including the conditions of long-distance marriage and consular marriage and establishes a list of the impediments to international public policy which do not recognise marriages celebrated abroad when they violate the fundamental principles of the Bolivian system. Likewise, the text regulates the law applicable to non-matrimonial unions, and to the personal and patrimonial effects of marriage, including the requirements of validity in the marriage contracts celebrated abroad. In the same manner, it regulates the legal regime applicable to divorce and separation, the establishment of filiation, the rules applicable to international or foreign adoption and questions relating to the guardianship and other protections of persons without legal capacity, making express reference to the problem of abduction and the international transactions of minors. Regarding property law, Chapter VI (“On Assets”), in its Section One refers to the rights in rem and in its Section Two to copyright; and, regarding “On the Obligations”, Chapter VI (and, particularly in the case of contractual obligations), the text seeks to summarise, in a set of precepts, the most relevant orientations of the Inter-American Convention on the Law Applicable to International Contracts signed by Bolivia in Mexico in 1994. Chapter VIII (“On Succession”) identifies the law of the domicile of the deceased as the law applicable to succession; likewise, the capacity to make or revoke a will is entrusted to the law most favourable between the domicile and the nationality of the testator. Chapter IX (“On the Form of the Acts and the Power of Representation”) proposes a necessary reform regarding the form of the acts, differentiating the law imposing a particular form, the law governing the same and the law that adjudges the equivalence for the purposes of section one. The Draft Bill also pays attention to certain characteristic matters of the law of international transactions. Thus, Chapter X (“On Foreign Currency Titles”) establishes an integral set of rules of law applicable to international foreign currency titles by paying attention to the legal vacuum existing in current Bolivian legislation. Chapter XI (“On Insolvency”) determines that the insolvency processes shall be governed by the law of the State of the court to which the matter is referred, and, in relation to “prescription”, Chapter XII considers that it is the cause of extinction and acquisition of rights, and proposes to link the law applicable to prescription to the law applicable to the obligations or rights referred to. International legal jurisdiction matters are considered in Chapter XIII (“On Jurisdiction and Competence”). Its Section One begins by accepting the extension of express or tacit jurisdiction in patrimonial matters, unless the courts of the Republic had exclusive jurisdiction; likewise, it includes the so-called “forum of necessity”. Below, in Section Two, international jurisdiction for various scenarios is specifically provided. On the “Validity of Foreign Judgments”, Chapter XIV determines that the judgments and other legal resolutions issued in a foreign country will have, in Bolivia, the force established by the respective treaties. Finally, in Chapter XV (“On Procedure”) the draft bill determines that the jurisdiction and the form of the procedure shall be regulated by the law of the authority before which it takes place. The plea as to jurisdiction of the Bolivian judge or court regarding the foreign judge or court will declare on its own motion, or by a separate request, in any stage or level of the proceedings121.

D) Limited participation in international codification

42. From the very inception of the OAS, the American States have reaffirmed that the greatest contribution to peace is the respect for public international law. For this, the Charter of the Organisation provides that “International law is the standard of conduct of states in their reciprocal relations” and that international order among other things consists of respect for “the faithful fulfilment of obligations derived from treaties and other sources of international law”. Among the matters selected for codification, in the Inter-American sphere in particular one may note those related to treaties contained in the Havana Convention on Treaties of 1928 and the Convention's rules on reservations, which at the time were set out both by the case law of the International Court of Justice as well as the Vienna Convention on the Law of Treaties. From here, the commitment to the priority application of the international treaties on private international law is present in the majority of the Latin American systems122, particularly in the States that are members of the Hague Conference on Private International Law, which are inspired in a “monist” conception geared towards the incorporation of the treaties into the domestic legal system123. Likewise, with the exception of Venezuela, the said States are parties to the Vienna Convention on the Law of Treaties of 1969, which results in a certain degree uniqueness in this area124, despite its inherent limitation. The CIDIP includes an express reference to the application of the rules of conflict, which has a didactic effect which is directed rather at the judge125. It is no accident that article 1 of the Inter-American Convention on General Rules of Private International Law of 1979 establishes that “Choice of the applicable rule of law governing facts connected with foreign law shall be subject to the provisions of this Convention and other bilateral or multilateral conventions that have been signed or may be signed in the future by the States Parties”; adding that in the absence of an international rule “the States Parties shall apply the conflict rules of their domestic law”126. It thus grants a supplementary nature to private international law from a State source which, while evident in certain rules developed by the domestic legislator, such as article 20 of the Cuban Civil Code of 1987 or in article 12 of the Mexican Civil Code of 1987, this is not as apparent in others. Unique in this sense is article 2047.1º of the Peruvian Civil Code of 1984, which requires the “relevance” of the international treaties to be “ratified” by Peru, “and if these were not” Book X of the said Code will be applied.

However, the solution to the matters of incorporation of the rules of private international law of contractual origin is generally determined in the constitutional texts or in the preliminary provisions of the Civil Codes, which at times preclude such incorporation and raise problems of domestic hierarchy of the international rules127, particularly if we are not dealing with agreements that are unknown by the judges due to their infrequent use, their age, or their recent nature128.

43. Today, the integration process of Latin America as regards private international law lies in the international treaties and in relation to these there are notable discrepancies in the area. The Inter-American system has a sufficient legal framework of conventions on legal and mutual judicial cooperation, which ranges from procedural law to family law, but the said system does not adequately cover the OHADAC zone. The effective fulfilment of judicial cooperation in this framework involves the creation of a network of central authorities and government officials as required by the existing conventions. It would be a good idea to provide the central authorities with the necessary tools to allow them to carry out their functions adequately and communicate with one another more efficiently and reliably. This shortage highlights the need to promote investigations into judicial cooperation in Latin America, because developing a stable legal framework of judicial cooperation requires prior in-depth knowledge of the reality of the actual situation of the regulations involved.

In the Latin American community there are models in which the problems of interaction of normative production procedures are very similar, resulting from the coexistence between the Civil Code, in its various versions on private international law (Napoleonic, German, Chilean and Argentinian), and the regulations of convention-based origin129.The most significant case is that of Mexico which, after an extended period of opposition to the convention-based rules in the regulation of issues of international legal transactions, started in 1975 a policy of incorporation of international treaties, predominantly multilateral in nature, which has resulted in a number of problems of interaction with the domestic legal system130 in this country, which have been, in a way, rather similar to those which occurred in Spain after the process of political reform. In other models, however, the leading role is played by the so-called “Treaties of Montevideo”131, a consequence of the supranational codification euphoria that characterised the Latin American republics from the first stage of their independence and which had a fundamental impact in private international law. The polemic between the law of the nationality and the law of the domicile as a backdrop132 as well as that of the “Bustamante Code” confer a singularity upon the international codification system of private international law in Latin America.

E) Impact of the work of the Hague Private International Law Conference

44. The Hague Conventions on Private International Law have been developed with a twofold objective: on the one hand, to provide a legal framework to private international transactions involving persons, families or companies, which provides a certain degree of certainty in the solutions; and, on the other hand, to facilitate the orderly and efficient solution of cross-border disputes, good governance and State governed by the rule of law, with respect for the diversity of legal traditions133. Mention should also be made of an important function such as constituting an essential instrument of support in the regional integration134..

In recent years, the number of States members of the Hague Conference has almost doubled. Today, almost one hundred and fifty States of the international community participate as States parties in some of the conventions emanating from this entity, which shows that there is a growing demand for specialised training and counselling services on the part of governments. Such support is very often essential for ensuring the objectives of the different conventions, such as the protection of children and adults, which require special and continuous implementation and supervision.

Despite its indisputable importance, the impact of the work of the Hague Conference on Private International Law in Latin America135 and, in particular in the Caribbean area, has been very limited except in the case of Mexico or Venezuela136 and the territories linked to France, the Netherlands and United Kingdom. In recent years, the Caribbean group increased with the integration of Costa Rica in 2011, as well as the incorporation of other countries in Latin America, such as Paraguay in 2005 and Ecuador in 2007, as a result of a Special Programme for Latin America of 2005.

This expansion had the advantage of admitting the possibility for the representatives of this group debate in Spanish, although it never became an actual working language. The invitation to participate as an observer was repeated in the Eighteenth Session of the Conference on the occasion of the deliberations of the Conference on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children that took place in October 1996, and was attended by representatives of Colombia, Costa Rica, Ecuador, Paraguay and Peru.

45. Since 2004, the Hague Conference has shown a policy of expansion resulting from the experiences of regional integration in Latin America, Eastern Europe, the Asia-Pacific region and in the whole of Africa, with a view to supporting the effective and generalised application of its conventions. For that reason, an extensive programme of activities has been developed at the regional level, which promotes cooperation and coordination between States with cultural, geographical and special linguistic ties. In turn, this aims to facilitate a most effective adaptation to the Hague Conventions to the legal culture in particular of the areas shared by the States in one region. After the conclusions and recommendations agreed in December 2004 during the Latin American Judges' Seminar on the 1980 Hague Conference on Child Abduction, the Permanent Bureau very seriously considered the need to reinforce the operation of the Hague Conventions in Latin America and to promote the participation of the States of the area in the work of the Hague Conference.

This initiative in 2005 resulted in the development of a special programme for the Latin American States with the collaboration of the governments of Argentina, United States and Spain and the contributions of various other States in the additional funding, administered by the Hague Conference International Centre for Judicial Studies and Technical Assistance. In essence, the objectives of this programme have to promote: a) participation of regional agents and the States in the work of the Hague Conference; b) the creation of networks between executive bodies, government authorities, the Hague Judges' Network, international organisations and the academic sector; and, c) the access to information in relation to the Hague Conference by the actors in the region, promoting knowledge and best practices under the Hague Conventions. The programme also seeks to collate information and carry out the investigation in the region in accordance with the needs of the Permanent Bureau and assist in the development and promotion of tools and guides of the Hague Conference (v.gr., INCADAT, INCASTAT, iChild, e-APP and good practice guides, among others) for the persons and entities responsible for the application of the Hague Conventions. It also aims to develop and advance the work of the Hague Conference in the Spanish language and coordinate technical assistance to the Latin American States regarding training and seminars for judges, government officials, the central authority, and other officials professionals responsible for the implementation of the Hague conventions.

Officials, judges, professionals and academics of the region are now in permanent contact with the Bureau for Latin America, which either answers them directly or forwards their needs and requests to the Permanent Bureau. In the same way, many requests submitted to the region by the Permanent Bureau are forwarded to the Bureau for Latin America, which serves as a source of information and a regional conduit for many of the global initiatives that are being developed and processed in the Permanent Bureau.

It is very difficult to measure accurately the results of a programme that has been expanding its scope year after year and which is entirely related to the functioning of the Permanent Bureau. In particular, the staff of the Permanent Bureau has been heavily involved and/or have participated directly in many of the activities reported in the present document. However, we will try to highlight a few specific advances in the region during the last seven years that are directly linked to the work carried out by the Bureau for Latin America.

The participation of Latin American States in the activities of the Hague Conference occurs through the Bureau for Latin America and includes distributing questionnaires, translating preliminary documents into Spanish, sending documents and financing journeys in order to facilitate attendance at events. The Bureau facilitates the participation of the delegates of the region in the international meetings, helps the delegates and experts obtain relevant information and encourages regional dialogue through telephone conferences, regional meetings, as well as the preparation of joint proposals and working papers for the global meetings.

46. Nonetheless, the instruments that are currently in force in the OHADAC area, as limited as they may be, tend to refer to questions such as legalisation, civil procedure, child abduction and, depending on the particular circumstances surrounding this matter, international adoption137. And this situation has not varied substantially, although in recent years Costa Rica and the Dominican Republic were incorporated into the Convention of 5 October 1961 on the apostille, and the Dominican Republic and Cuba signed the Convention of 29 May 1993 on protection of children and cooperation in respect of intercountry adoption. Likewise, the Dominican Republic is party to the Hague Convention of 19 October 1996 on jurisdiction, applicable law, recognition, enforcement and cooperation in respect of parental responsibility and measures for the protection of children.

As well as the above-mentioned limitation of the matters regulated there has been a lack of a proper development of the mechanisms of international legal assistance and coordination between extrajudicial authorities that help the legal practitioner implement his own principles in the Conventions. In other words, the implementation of these instruments is expensive, but often they constitute a starting point towards an adaptation of development at the domestic level and are in no way adequate by themselves to resolve the problems of international legal transactions regulated in them. Hence, a State should not be incorporated without anticipating the ensuing problems raised by its implementation in the domestic legal system, which, very often, requires a very significant budget allocation138.

A third limitation is focused on the block politics that are observed in the Hague Conference and that are translated into a spatial relativism so as to ensure the enforcement of the Conventions resulting from them, as shown by the action by the so-called “European Group for Private International Law” and by the EU itself. This group not only wields its influence outside of the Conference itself but, inevitably, occupies a subliminal position of power within this. For the time being, this position is focused rather on patrimonial matters, but the extension of the matters conducive to matters of civil justice offered by the “Third Pillar” designed in Maastricht, and the new possibilities experienced by the harmonisation of family law in Europe can undoubtedly be a new factor of special regional particularism and, consequently, of estrangement.

47. Finally, the possible meeting between the codification tasks carried out on both sides of the Atlantic, if both cover the same matter, can be removed by the judge from the incorporation clauses for the conventions focused on the specific area of the “conflict of laws”. Starting from 1961, some of these instruments conceived in the Hague Conference contain clauses of universal application which exclude any condition of reciprocity. Although this undoubtedly offers great advantages for the unification of the rules of conflict, it can also hinder the relationships of private international law, in addition to the problems of interaction with the national rules of private international law and their incorrect application by the courts of justice. This situation can preclude the State that has assumed erga omnes obligations under a Convention from being incorporated into another Convention of this kind concerning the same matter139 or from developing its own strategies for national private international law.

On the other hand, important rapprochement factors exist. One of these, as might be expected, would consist of the adoption of Spanish as a working language. At the beginning, French was the only official language; then, upon the entry of the United States in the Conference, firstly as an observer and subsequently as a member, English was added, although at the beginning the French text of the conventions had to prevail in case of dispute. This situation, which is at odds with the universal nature of this institution, although it is justified for understandable economic reasons, has not been peaceful140. Another rapprochement factor, as irrelevant as it may appear, is the translation into Spanish of the agreements from one common language accepted by all Latin American countries. Of course, the sole authentic text of the conventions resulting from the Conference is French and English. This issue was not new in the Conference since Germany, Austria and Switzerland have generally presented a joint text and undoubtedly this is a factor which not only prevents horrendous private translations, but favours the implementation of the Conventions in the Member States, while preventing the circulation of different versions141. After a series of informal initiatives in 1989 two meetings of Spanish-speaking delegates took place in the Hague, which commenced the preparatory work of revision of the texts in that language. The following year and thanks to the auspices of the Spanish Ministry of Foreign Affairs a new meeting took place in Madrid, which would lay the definitive foundations for the future unified translation of the Hague Conventions into Spanish142.

F) Impact of the work of the CIDIP

48. The process of codification of private international law in the Inter-American sphere has been one of the permanent legal efforts of the States of the area from the final decades of the nineteenth century. This work has been carried out by various institutions and for some years now has been taken over by the Inter-American Specialized Conference on Private International Law (CIDIP). After the start of this new codification stage in America, the main concerns have aimed, on the one hand, to coordinate the efforts undertaken to ensure that contradictory instruments are not approved and, on the other hand, to consider the mutual influence between the various processes involved, in particular that created in the Hague Conference on Private International Law.

The beginnings of this Conference were marked by the Charter of Bogotá approved in 1948, which created an Inter-American Council of Legal Experts, whose mission included the promotion as far as possible of the uniformity of American legislations. During the Third Inter-American Conference, which took place in Buenos Aires in 1967, the Council's competence was transferred to another body, the Inter-American Juridical Committee (IAJC)143, whose mission is to “promote the progressive development and codification of international law and to study juridical problems related to the integration of the developing countries of the Hemisphere and, insofar as may appear desirable, the possibility of attaining uniformity in their legislation” (article 99 OAS Charter). During the 1950s, the efforts of the technical bodies of the OAS were aimed at exploring the possibility of harmonising the selection criteria of applicable law adopted by the Bustamante Code with those incorporated in the South American treaties on private international law and the Restatement of the Law of Conflicts of Laws prepared by the American Law Institute, however these efforts were not crowned by the success. Suffice to say that a draft Code developed by the IAJC did not have the support of the States members of the Organisation. This led the IAJC to abandon the global focus of the codification of this legal discipline and commence a second stage, marked by the sectoral codification of private international law. To do this, it was necessary to explore other possibilities, specifically to develop an array of instruments on the most important substantive and procedural aspects of relations of private international transactions. Thus, in 1971, the General Assembly of the OAS decided to convene the First Specialised Inter-American Conference on Private International Law (CIDIP-I)144, which was held in Panama City from 14 to 30 January 1975, marking the beginnings of important codification work on private international law on the American continent.

The CIDIP conferences have been the mechanism used in recent years for addressing issues of private international law with considerable success. One of the main characteristics of the CIDIP conferences is that the topics proposed for consideration by a particular conference are the recommendations presented by the previous CIDIP conference. The topics proposed went on to be studied in meetings of experts, which examined these highly specialised aspects of private international law.

49. The essential overview of the work of the Conference shows the following. CIDIP-I, held in Panama City in 1975, adopted the following six conventions covering international commerce and procedural law: these are the Inter-American Convention on Conflict of Laws concerning Bills of Exchange, Promissory Notes, and Invoices; the Inter-American Convention on Conflict of Laws concerning Checks; the Inter-American Convention on International Commercial Arbitration; the Inter-American Convention on Letters Rogatory; the Inter-American Convention on the Taking of Evidence Abroad; and the Inter-American Convention on the Legal Regime of Powers of Attorney to be used Abroad145. The Second Conference took place in Montevideo in 1979, and also had significant results, since eight codification agreements were developed: the Inter-American Convention on Conflicts of Laws Concerning Checks; the Inter-American Convention on Conflicts of Laws Concerning Commercial Companies; the Inter-American Convention on Extraterritorial Validity of Foreign Judgments and Arbitral Awards; the Inter-American Convention on Execution of Preventive Measures; the Inter-American Convention on Proof of and Information on Foreign Law; the Inter-American Convention on Domicile of Natural Persons in Private International Law; the Inter-American Convention on General Rules of Private International Law; and the Additional Protocol to the Inter-American Convention on Letters Rogatory. The Third Conference was convened in La Paz, in 1984, with more modest results: the Inter-American Convention on Conflict of Laws concerning the Adoption of Minors; the Inter-American Convention on Personality and Capacity of Juridical Persons in Private International Law; the Inter-American Convention on Jurisdiction in the International Sphere for the Extraterritorial Validity of Foreign Judgments; and the Additional Protocol to the Inter-American Convention on the Taking of Evidence Abroad. The CIDIP-IV Conference, which was held in Montevideo in 1989, adopted the Inter-American Convention on the International Return of Children, the Inter-American Convention on Support Obligations, and the Inter-American Convention on Contracts for the International Carriage of Goods. The CIDIP-V Conference, held in Mexico D.F. in 1994, adopted the Inter-American Convention on the Law applicable to International Contracts and the Inter-American Convention on International Traffic in Minors. Registering a certain institutional crisis, the CIDIP-VI, held at the seat of the OAS in Washington DC in 2002, adopted the Model Inter-American Law on Secured Transactions; the Inter-American Uniform Through Bill of Lading for the International Carriage of Goods by Road and the Non-Negotiable Inter-American Uniform Through Bill of Landing for the International Carriage of Good by the Road. Finally, the Seventh Conference on Private International Law (CIDIP-VII) was held in June 2003 and the topics of consumer protection and electronic registries were approved.

With an inspired vision and despite the common American tradition and the existence of extensive previous codification work, the CIDIP has demonstrated an extraordinary realism. It has opted for a clear rejection of the codification of the whole of private international law in order to look more closely at specific aspects of interest for the relations of international legal transactions of the States parties. What we are dealing with might be classified as “decodification” of convention-based private international law146. On the other hand, and inevitably, it has experienced a certain mimetism with the Hague Conference on Private International Law in the techniques of codification and in the way of dealing with the specific problems147. It is probably the fact that various American countries are members of the said Conference, whose claim of universality is clearly apparent, which has caused this parallel codification work. Such a similarity does not exist, however, regarding the work schedule and the matter codified. While in the Hague the “content” of private international law strictu sensu is considered, in the CIDIP this is much greater, since it includes specific issues of the law of international commerce (bills of exchange, promissory notes, invoices, cheques, arbitration, commercial companies and international carriage of goods by road)148 and shows an expansive tendency in the feelings of certain delegations. In any case, as in the Hague Conference149 itself, the greatest successes from the point of view of the incorporation of the States into the Conventions are encountered in the sphere of international procedural law and, in particular in the area of international judicial assistance.

It should be noted that the work of the CIDIP reflects a very evident prominence of three countries (Mexico, Venezuela and Uruguay), the remainder being limited to a mainly passive role, which results in a distortion between the codification efforts undertaken and the number of States that incorporate into the Conventions of the Conference.

G) Inadequacy and insufficiency of the Bustamante Code

50. The Code was adopted by the Sixth Pan-American Conference and conceived at a historical moment but dominated by a certain internationalist euphoria, which was cut short after the economic crisis of 1929. Its intention was to bring together in a single text all of matters that at the time were considered to form part of the content of private international law. For this reason, it was structured in four books related to civil matters, undoubtedly the most extensive, as well as commercial, criminal and procedural matters respectively, which were preceded by a Preliminary Title. It resulted in a text of extraordinary material heterogeneity and excessive length (437 articles) which, in many cases, went beyond the mere unification work of the practice existing until then, incorporating the regulation of a number of matters on which there was no established practice in the court rulings of the States parties. This final aspect conferred the Code a character that extended into a progressive development perspective of the rules with a significant academic component and a propensity to regulate matters falling entirely within the ambit of public international law (v.gr., extradition) by entering completely into matters pertaining to national sovereignty.

The presence of Latin American States in the instrument is limited: complete acceptance (Cuba, Guatemala150, Honduras, Brazil, Haiti, Dominican Republic, and Venezuela151), ratification with countless reservations and subordination to the domestic legislation (Bolivia, Costa Rica152, Chile153, Ecuador and El Salvador) and complete withdrawal (Argentina, Colombia, Mexico154, Paraguay and Uruguay). It undoubtedly gives rise to glaring discrepancies, which are linked to the dimension related to public international law in its relations with the national constitutions which, lamentably, is not very developed from a comparative law perspective. As can be observed, within the OHADAC area, complete acceptance of the Code is only effective in Cuba, Guatemala, Honduras, Nicaragua and Panama. It was ratified with a reservation regarding some articles by Haiti, Dominican Republic and Venezuela; and, ratified with countless reservations and subordination to the domestic legislation by Costa Rica. The considerable impact that the Bustamante Code has had in the area of the Caribbean and its broad dissemination have inevitably spawned a number of comments regarding this.

51. It goes without saying that it is very important to highlight the significant value of this Code, which has managed to establish itself as an authentic legal monument. Moreover, it has been one of the most important legal instruments of the twentieth century and at the time was the culmination of an enormous task that must be duly recognised and valued. It has also been one of the most accepted instruments in Central American countries, in Caribbean Latin America and in the north and centre of South America, and it can be said that it instituted large-scale development of sub-regional conventions. At the time, it constituted a substantial agreement between the States, which signed it for the resolution of conflicts of laws in their legal systems. It is a general codification instrument of private international law, whose scientific authority was based on the great attention that has always been given prominence in the works of private international law written in America, where it is considered to be an essential document for understanding the application of private international law155 in practice. Upon its entry into force, the said States became pioneer States in the utilisation of adequate regulations in cases with foreign elements and also in the development and advancement of private international law156.

The Code has been the obligatory reference point for all of the constructions of private international law that have been achieved in Latin American in a period spanning almost a century, and in other legal circles157, with important implications in certain key institutions such as in relation to the legal implementation of the foreign law. In this way, it has sometimes constituted a source of solutions to the problems of international transactions used by the courts of countries that did not participate in this great project, while it led national courts to interpret and implement its precepts in such a disparate manner it called for a work of unification.

As every human endeavour has its time, the Code has not been able to resist the passage of the years. It is the fruit of an era dominated by the publicist conception of private international law, which considered it to be part of public international law. It provided a response to a conflict of sovereignty between the States and was imbued with a strongly “Eurocentric” conception, in which the principle of the nationality was an essential tenet, compared to other conflicting conceptions that have been very firmly established in Latin America. Finally, it responds to some special circumstances of international economic transactions that occurred in the final years of the League of Nations, quite different from the situation today. Similar considerations are found in the Explanatory Note of the Venezuelan Private International Law Act, in the sense that “experience has shown us, in effect, that the rules contained in a series of isolated but congruent legislative provisions, and even in such an extensive and comprehensive organic text as the Bustamante Code, have had a latent life and have lacked in real significance”.

52. From the perspective of the technique used for the Code, it must not be forgotten that it is an international convention, with all of the disadvantages that an instrument of this kind entails for a regulation of the private international situations, which require legal certainty. As every Convention, the Bustamante Code is subjected to the general rules that govern international treaties, and as such, before proceeding to the application of its precepts, it is necessary to respond to four preliminary questions.

First of all, the question arises as to whether the subject matter of the dispute falls within its substantive scope of application or, on the contrary, the domestic rules must be applied in the event of legal vacuum in the regulations; secondly, the determination of the time when the Code is applied and whether its provisions can be applied retroactively to legal situations which occurred before its entry into force; thirdly, if the State is involved in the disputed legal relationship, since, unlike the modern international normative instruments of private international law, the Bustamante Code does not contain erga omnes rules, and is only applied in the framework of the relations between the member States. To put it another way, and it is important to insist on this, it is not an international instrument of unification. Finally, like any applicable legal regulation, the Code is likely to enter into conflict with the successive treaties regarding the same matter signed by the States parties and such a conflict must be solved in the most cases by the law courts. If, in the early years of the twentieth century, the existence of an international agreement on the subject of private international law was the only possible source, currently this technique has been largely surpassed. Many of these questions have been provided with a timely response in the court rulings, which have repeatedly demonstrated the inadequacy of the Code as an instrument of global regulation of the system of private international law.

In addition to this, it is important to mention the antiquated nature of many of the solutions considered in the paragraph concerning international business law. The treatment of autonomy of the will of the rules governing international contracts has been completely overtaken by international events, which renders the regulation of the Code completely obsolete in this important sector of international commercial transactions. And the same can be said of the regulation of arbitration, which, starting with the work of UNCITRAL, has ventured down other roads. If the Code at the time constituted an advanced position in the consideration of the problems of international transactions, almost one century later, during which the global economy has changed substantially, moving towards a virtually complete acceptance of a globalised market, a good deal of its responses fail to adjust to the present reality.

53. The dissemination of the Code and its unification objectives in the whole of Latin America bore no relation to its declared expectations. Even distinguished Latin American jurists have considered that the code has not gone on to be more than a mere declaration of good intentions and that its practical value and its results were not very significant. And in addition to this, as we will see below, it has had a very limited and singular application in the States that formulated general reservations.

Indeed, it is very important to bear in mind that some of the signatory States were never incorporated into this international convention, as was the case of Argentina, Paraguay, Uruguay, Colombia and Mexico, certainly for very different reasons but, in any case, due to their failure to accept a personal law different to the law of the domicile; the position of Colombia is significant, which showed a special preference for the “genuinely American” doctrine of the domicile. Other States such as Brazil, Haiti, Venezuela, Bolivia, Costa Rica, Chile, Ecuador and El Salvador formulated reservations of greater or lesser importance (the Venezuelan reservation affected no fewer than 44 articles) of the application of this instrument. Consequently, the generalised acceptance of the Code only involved a small number of countries: Cuba, Guatemala, Honduras, Nicaragua, Panama and Peru. On the whole, it can be affirmed that this instrument applies in a very limited number of Latin American States and that its implementation is very frequently brought about by the set of reservations regarding its scope of application.

As can be observed from the doctrine elicited from the Caribbean courts, the Bustamante Code has not had a significant practical application, but is merely a reference used occasionally by the parties as an accessory for justifying a particular cause of action in law (violation of public policy, maintenance of possession by the affected owner, domicile of diplomats abroad, rights of succession...) combined with the constitutional provisions or the provisions of international human rights regulations.

III. Draft of a OHADAC Model Law on Private International Law

1. Legislative technique issues

54. In matters concerning the regulation of private international relations, no national legal system can remain shackled to normative solutions generated exclusively by the domestic legislator, which are often outdated and inadequate for the current legal reality. On the contrary, it is necessary to align with the tangible achievements that are occurring in the international community and more specifically to the countries in their immediate vicinity. On the other hand, globalisation generates the need for new normative blocks to overcome the traditional problems of the sources of private international law through uniform substantive solutions. The need for the harmonisation of private international law is based on the finding that national laws tend to be inadequate for international cases and that there is a significant disparity between them, including in a geographic framework such as that of the OHADAC project.

Unification and harmonisation are terms with varying scopes. Being more flexible, harmonisation does not imply the need to adopt a specific text, but comprises an approximation of legal concepts which can be achieved through different instruments, such as the implementation of a “model law”. This flexibility indicates that it constitutes an intermediate stage between the results of the comparison of legal systems and unification strictly speaking158. We are facing a process that is aimed at facilitating the amendment of certain rules of domestic law of the States, in order to ensure the predictability of the relations of international legal transactions. On the contrary, unification requires the existence of a joint text, either a “convention” or a “uniform law” which results from direct application for the legal practitioner. It is a process through which the States approve common legal rules or systems for governing certain aspects of the relations of international legal transactions.

This context is characterised by economic interdependence resulting from the so-called North-South dialogue and, from a legal perspective, by a dialectic between countries of common law and Romano-Germanic law. In this universal dimension, regional solidarity is superseded by the universal unification currents159. It is fertile soil for insisting on the idea of “legal family”, which is projected in some form before international courts of private international law, with all reservations that this entails. And the result is none other than the strong tendency towards the international harmonisation of this area of the legal system. From this special perspective, the harmonisation is presented as a new reality of the cooperation on private law which tries to overcome deficiencies of the traditional legal solutions through rules of conflict of laws and harmonised jurisdictions, as a means of connection between the various national systems. The decodification processes, the ever-increasing creation of special laws by countries and the increase of peculiarity have resulted in the existence of an extensive set of rules of very different nature, provenance and formulation, aimed at regulating the private law aspects of international commercial relations.

55. The international harmonisation of private international law raises particular questions that need to be addressed, even in passing. First of all, the codification requires an auspicious moment for its implementation160. If the codification that took place in the League of Nations was limited and was characterised by the low participation of States in the conventions on private international law, it must not be forgotten that the aftermath of the New York Stock Market crisis had an decisive impact on this fact; and, to cite but one example, if the codification of the international commercial law has experienced a serious setback, the latter must be seen in the context of the energy crisis of 1973 and 1978 and its impact in the context of the so-called “New International Economic Order”. Secondly, these economic reasons are joined by others of an institutional nature, which are far from negligible, in particular, the inexistence of an international parliament, which requires linking the international codification to the phenomenon of the international organisations and, more specifically, regional ones where, generally, the particularities are less pronounced, increasing their chances of success.

The international codification of private international law also requires an adequate technique, which, in addition to the traditional use of the international convention, allows for the adoption of various texts, such as uniform laws, model laws, etc.161, which we have already mentioned. It is also necessary to ensure that a series of requirements are met in their various phases, in particular regarding the selection of matters to be codified, in the drafting of the preparatory texts, in the selection of the “special rapporteurs” in the plenary session, in the adoption of the final text and, finally, at the critical time of the complete or partial adoption of the resulting text by the States. A crucial aspect in this technical perspective is the selection of the appropriate normative channel: a specific type in the case of the advanced integration schemes (such as in the EU, for example, with the Directive or, especially, the Regulation), an international convention or an instrument of so-called soft law, for example a framework law or “model law”. In the absence of a specific normative type, the latter channel, the model law, seems preferable to employing the support of a convention for guaranteeing a codification result that will always require the consent on the part of the States to being bound by the convention in question. And it should not be forgotten that if the matter selected is greatly imbued with the particular conceptions of a reduced group of States, the final text might not acquire the sufficient number of ratifications, accessions, etc., necessary for its entry into force.

In addition to the conditions described, it is important to note that for international codification to be effective the authorities of the country or countries involved are required to provide their assistance in two different aspects. Firstly, the domestic institutions must be consistent with the international obligations assumed by the State; hence, a close coordination between the matters that have been codified and the national measures for their implementation. Secondly, and this is common to all codification enterprises, real political will is necessary to confront codification resolutely, taking into account its importance, as we have suggested in the previous pages. Thirdly, an authentic harmonisation can only be achieved based on a text which incorporates a generally accepted familiar legal language that is conducive to a similarly uniform application and judicial interpretation. It also needs to be aware that it aims to overcome the peculiarity and not to guarantee it, with all that this entails in terms of sacrifice and, where necessary, of moderation in the use of generally admitted remedies, such as national public policy.

2. Codification methodology

A) Problems of uniformity and diversity of normative techniques

56. The particularism, the need for an in-depth methodology and the hegemonic interests are not the only problems involved. As indicated before, it is important to point out the codification techniques. Apart from the experiences that are only possible in certain legal circles which also have common interpretation procedures, the traditional channels of unification have clearly shown their shortcomings, in particular the instruments based on Uniform Laws that have most often been declared to be powerless against the irresistible tendency of the States towards peculiarity. For that reason, it is important not to sanctify the international unification process and even less its formalisation through a normative production process at the international level: the uniform solution does not necessarily have to be the best and the supposed advantage of being based, quite simply, on an international text must be accepted with many reservations162. The phenomenon of unification, heir to the tenet of international harmony of solutions, is not an end in itself nor an abstract value. It can only be described as positive if it offers adequate solutions better adapted than the provisions enshrined in domestic rules. Strictly speaking, it serves to clarify and rationalise the domestic solutions.

No effort to unify the law may be conceived only in aprioristic and idealistic terms; in such a case, the work is doomed to failure and is reduced to mere dogmatic speculation. If, on the other hand, the phenomenon responds to some specific interests, or rather, to an accommodation of reciprocal interests by the States that initiate this particular process, the results are much more effective and the unification becomes particularly important. For this reason, there are areas of the law, such as private international law, in which unification is a consubstantial element, not only at the normative level, but also at the level of judicial application. This situation is very much focused on the particular times in which we live and concrete achievements are already being felt in areas of the law which until now had remained at the margins of unification movement. The said achievements are expected to change the panorama and, in the process, they will produce a sea change in the codification techniques and, finally, in the outcome of the unification.

57. It is undeniable that the uniform law is a valid regulation technique for the unification of private international law, to the extent that it guarantees complete legal certainty and predictability for the economic operators163 like no other law. However, it is necessary to make a series of prior observations in order to define their limits. On the one hand, consideration should be given to the intended amount of coordination, which can be different based on the distinction between the simple harmonisation of regulations, in which only the existence of a series of normative principles is apparent, although the diversity of the regulations involved is maintained, and unification strictly speaking164. On the other hand, a distinction should be made between unification and unified law. Unification is composed of a set of rules adopted by a group of States that share a common will to be subjected to a same regulation in certain legal relations. As for unified law, it refers to the normative result, which opens up a process of unification of the law, which can materialise through different channels: Model Laws, Uniform Laws, unification treaties and, in certain legal circles with a high degree of integration, certain specific instruments can appear in various formulations as is the case in the sphere of the European Union, especially with Directives and Regulations. The uniform law would thus be nothing other than the law unified through a single procedure: the Uniform Law, always instrumentalised through an international treaty165.

The best results achieved by the unification of the law have been obtained when it intervened in the regulation of the international life of individuals; that is to say, when it has operated on the very reality of private international law, albeit with different approaches than the classical tenets based on which it was developed. We are facing a regulation technique which, despite emerging outside of private international law, is a very important instrument for resolving private international situations166. Notwithstanding the numerous challenges involved in the unification of substantive law, including the unification of a system of private international law, it implies the best possible guarantee of legal relations across supranational areas, providing them with greater legal certainty and ensuring greater predictability of the law for the legal practitioner. The solution of the problems of the international transactions through the uniform law thus appears to be a substantive response, almost always very special and, in any case, based on wide legal experience. It is not surprising therefore that we are able to affirm rigorously that a uniform law is theoretically the most effective technique of private international law, in particular among those whose preventive function makes them practically infallible167. It is the quintessence of the notion of “preventive private international law” or conflict avoidance.

58. Even today, it is evident that the legal unification of private international law, at least in the area of applicable law, offers undeniable advantages, regardless of the method used168. It is also undeniable that in this particular area the most effective instrument to date has been the international convention. Recourse to the unification of rules of conflict has had great prestige until quite recently through its less controversial nature and by offering better negotiation facilities in order to achieve a Convention, considering the expedience of universal or regional actions in the area169. Nor has there been a lack of advocates of this position claiming that the unification of generally applicable substantive rules ignores conceptual and methodological differences existing between the various legislations, which is not the case if conflicts of laws techniques are used170. Furthermore, on the whole, the choice between one technique or another depends on the willingness of the States to modify their legal systems and it is obvious that there is greater reticence towards the unification of the substantive law, which is intrinsically more aggressive, than for the unification of a handful of rules of private international law. In any case, the tendency towards the implementation of the rules of private international law on applicable law is not in line with the traditional codification techniques based on international conventions. Of course, this does not apply in other areas of this legal system, such as in international judicial cooperation, where the highlight of the international regulation is indeed technical and ultimately the international convention: the results of the international codification of private international law show that the greatest success has been obtained in this particular matter, both through the massive participation of the States as well as through its habitual application by the national jurisdictions171.

On the other hand, one should not lose sight that the international treaties that unify the rules for determining applicable law are obligatory and rigid sources, which leave the contracting States hardly any room for manoeuvre and when, as is increasingly happening, the rules on applicable law provide a high degree of substantification, it presupposes a consensus which is difficult to achieve as the substantification advances inexorably172. The States that do not opt for the substantive orientation retained by the solution of applicable law will not appropriate it as their own. But on the other hand, it must also be recognised that the supposed “neutral” nature of the rules of conflict resulting from convention negotiations can also contribute to discouraging the States from incorporating the text since they do not see their own interests reflected in it. The neutrality resulting from the necessary consensus tends to accentuate the conservative nature of the rules of conflict included in an international treaty. This explains why international commercial relations tend to escape from this codification methodology, which is increasingly focused on non-patrimonial matters, and is better suited to substantive unification.

B) Disadvantages of international treaties as a unification method

59. Strictly speaking, the uniform law prefers to use the multilateral international treaty as a channel of incorporation into positive law, which presents advantages and disadvantages: advantages, due to providing certainty regarding the unified matter; disadvantages, due to the rigidity entailed by any codification and through the problems of adaptation offered by a text of this type in any national legal system. It is sufficient to consider that the conventions on uniform law have not generally acquired a significant number of States parties. For example, it is significant that a reduced number of States have adopted the Geneva Convention on Bills of Exchange and, above all, its absence in Anglo-Saxon countries. Apart from the characteristics mentioned in above paragraph, which are not entirely positive, the uniformity through the international treaty identifies the general and typical problems that characterise this particular codification technique regardless of its content173.

First of all, there is a possible “democratic deficit”, due to the frequent disconnect, firstly between the drafters of the bills (who mostly act independently) and then the negotiators at the international conference, with the actual needs of the legal network that they are supposed to represent. In addition, there is a lack of coordination between the domestic and international codification processes174. Secondly, the unification of the convention is an expression of a somewhat antiquated positivism in the sense that it permits the States to preserve their capacity for control in the creation of the law; we are thus witnessing a parallel phenomenon to that occurring in domestic legislation, and both can be reproached for an excess of quantity and a lack of quality175. Thirdly, the result is very often antagonistic. It is translated by compromises that are embodied in agreements, which sacrifice the necessary simplicity of the unified rules, resulting in ambiguous texts that confront the interpreter with a number of difficulties, if not merely contradictions or incoherencies, which have become difficult to deal with in practice176. Fourthly, the rigidity implied by many convention-based solutions can swiftly render obsolete agreements that do not incorporate flexibilisation mechanisms in their articles with any development of international commerce. This rigidity is often the result of the absence of a distinct political power of the States, which promotes the drafting of conventions in adequacy with the social reality177. It is also the result of the traditional rigidity in the traditional mechanisms of the law of treaties at the time of modifying, amending or simply updating an existing convention, with the participation of all the States that originally gave their consent. Fifthly, the incorporation of the unification treaties into the domestic legal order of the States that have given their consent to be bound is a problem; this difficulty might be the origin of the appearance of various subsystems based on the effects of the rule in the convention. These subsystems typically are from two sources: one domestic and one originating from a convention178. A further point in this connection is the problem of the application of the convention in the different territorial units in case we are dealing with a State with more than one system of law179. Sixthly, the incorporation of the uniform law convention is connected to the reception and acceptance of the treaties by national judges in the process of application of the law. Judicial interpretation through legal categories of the forum or the possible action of public policy are elements that hinder the implementation of a healthy assimilation of the unified law on the part of the national authorities. Finally, the existence of the broad network of treaties in this area, which often apply successively, begets the question of their mutual relations180 and, finally, the set of clauses on compatibility, subordination or complementarity of the international instrument, with respect to the substantive, temporal and territorial scopes of application of the convention, giving rise to the increasingly common occurrence of the “conflicts of conventions” which are sometimes difficult to resolve due to the operation of the clauses incorporated by them181 or by keeping silent on this matter, and this apart from the set of reservations, which are particularly relevant in the conventions applicable to international commercial transactions.

60. In addition, the uniform law conventions have the advantage of restricting their application to the relations connected to more than one system of law, co-existing with the domestic legislation of the State, which governs relations of domestic transactions. This dimension logically raises an evident problem of delimitation between both systems. It should not be overlooked that there is a close-knit interaction between the unification rules and the domestic system that receives them, so that certain distortions can result in the implementation of these. Sometimes, the mere fact of classifying a specific convention as being a “uniform” rule is a difficulty in itself.

  1. i) Apart from the possibility of the existence of universal application of the Convention, this gives rise to a number of problems of interpretation which can lead to very disparate results and which, in any case, undermine legal certainty, which must be at the core of the regulation of international commercial transactions. It should also be noted that not all of the conventions that regulate the said transactions have this claim of universality. A good example is provided by the scope of application of the Vienna Convention of 1980 on the International Sale of Goods.
  2. ii) The rapid development of the international codification of the uniform law has lately been generating frequent situations of conflict between Conventions182, which raises significant and complex problems of normative delimitation and does not favour a healthy regulation of the fundamentally commercial international transactions. This fact is caused by various factors. A revision of previous conventions frequently occurs within the same codification forum or identical matters are the object of simultaneous international codification in different fora (whose most glaring example is the conventions related to international contracts of the UN, European Union, Unidroit, etc.). And while it should not be forgotten that futile conflicts of conventions are often aroused due to a flawed interpretation of their respective scope of implementation, it is certain that the problems of delimitation between conventions are coming to light in increasing numbers every day in the domestic court rulings of any Stat. The intrinsic risks of the delimitation between conventions are manifold and result from the very possibility of ignoring the existence of international texts, and the intrinsic difficulty which, on occasions, involves the work of selection of the correct rule, of the specific convention.
  3. iii) The said difficulties have facilitated the inclusion in the same texts of conventions of the so-called “compatibility clauses of Treaties”183. It provides a very different scope, from the goal of eliminating any conflict in the future regarding the period of validity of the previous treaties to the application of the principle of the most favourable law, passing through more complex situations depending on the interests involved or generating uncertainty and finally a freedom to act for the judge, who ultimately will be the person who decides according to his sound discretion and will chose the text of the convention applicable to the case184. In the latter cases, the wording of the clause finds a certain justification in a codification technique of “forging ahead”, for preventing the negotiations from becoming paralysed, and not in the definitive solution of any of the problems involved.
  4. iv) The concept according to which the uniform law conventions ultimately have to eliminate any conflict of laws that may occur in the matter subjected to the same must be discarded because the legislative uniformity does not imply the uniformity of interpretation. Commercial practice shows that the legal systems, although originating from the same family, tend to provide different and varied responses to a specific question regulated in an international unification instrument185. The problem of the interpretation of this type of conventions is not only one of the most debated matters, but also provides an important theoretical essence186. In principle, if one were to formulate a text which pre-emptively eliminated questions of interpretation and used very clearly defined categories, one would avoid problems a posteriori. However, on many occasions, this work is not feasible; this dilemma appears at the time of applying the rules. But the problems do not end here, since the multiplication of the international uniform law conventions has recently given rise to considerable divergences in the interpretation that is given to the same concept, not of one concept in the same convention from the perspective of different States parties, but in two or more of these instruments, including from the unilateral perspective of a single state legal practitioner. The inexistence, today, of any “autonomous concepts” such as “sale”, “movable property”, “business establishment” or “factoring”, notions of varying scope based on the specific instrument, requires a coordination of the unification efforts so that the questions derived from the so-called “interpretation of conflict of conventions” are pre-emptively bypassed187.

C) Advantages of Model Laws

61. Given this situation, attention must be paid to the new normative techniques favourable to the unification of the law that are generated in certain international codification fora. Given the reticence of the States to be incorporated into Uniform Laws, in defence of its legal peculiarities at any cost, we turn to a more flexible channel, which is that of the Model law. It plays an increasingly important role for the approximation of the legislations, by providing the States with a margin of freedom to decide to regulate a specific matter based on internationally accepted standards. It also allows them to modernise their legislation in accordance with their own needs and is a valuable instrument, in the international sphere, for interpreting certain conventions and other existing international instruments, without ignoring that this is an “alternative” codification technique which provides a lower level of international cooperation often being configured more like a one-off solution than as a generic codification mechanism.

The Model Law now being presented is essentially a legislative text:

  1. i) That the States are recommended to incorporate into domestic law. And unlike an international convention, the State which decides to adopt it will not be obliged to comply with a number of complex legal requirements inherent to treaties, such as the notification to the corresponding depository or to the other States parties. One of the reasons for ensuring compliance as much as possible with the uniform text of the Model Law is because this will ensure that the domestic rules will be more transparent and known to the foreign parties, as well as to the foreign advisors and consultants who participate in a conciliation process that takes place in the territory of a State that has adopted it.
  2. ii) That generally tends to be adopted in an international conference after a complete preparatory discussion regarding its mere implementation, in the sense of implementing a similar process to that followed in the European Union applying the so-called “Green Paper” technique. After this adoption, States will be recommended to incorporate some or all of the resulting text into their domestic law. This does not have, however, an immediate mandatory effect - the States are not under any obligation to communicate to the codification body or other States that they have incorporated the text into their legal order - but its function is to inspire the domestic legislator at the time of codifying a specific matter covered by the said Model Law. Bearing in mind that we are dealing with a model of a legal text prepared in order to be incorporated into domestic law, it exhibits the same traits as any legal text intended to be adopted by a parliament and, consequently, it does not contain any list of “signatories” like the ones that tend to be appended to international treaties.
  3. iii) Whose provisions can be modified or suppressed by the State in the procedure of incorporation into domestic law, avoiding the traditional practice of reservations that occurs when the text of a convention is adopted; the said practice does not tend to be well accepted in the sphere of international codification, and it is becoming more frequent in the conventions that scrupulously limit its scope under exceptional circumstances. It is certain that the harmonisation and certainty that is achieved through the model legislation is probably less than a treaty or convention. However, this apparent disadvantage may be compensated by the fact that the number of States that decide to incorporate the Model Law will probably be greater than the number of States that will be able to ratify or adhere to the convention. And, in any case, the flexibility that characterises this technique permits the legislator to adapt the model text to its domestic idiosyncrasies, for example those of a procedural nature. While it is understood that the codification institutions strongly recommend the States not to resort to this practice very often so as to improve the effectiveness of the codification work, in order to achieve a satisfactory degree of harmonisation and certainty, the States must endeavour to introduce as few changes as possible when incorporating the rules of the new Model Law into their domestic law, and they must endeavour to ensure that any change introduced is compatible with the basic principles of the Model law.

The UNCITRAL, the predominant codification institution in the commercial sector, has recently adopted this technique in an intention to overcome State misgivings and expand a series of basic principles in relation to certain institutions. A significant example has been the UNCITRAL Model Law on International Commercial Arbitration of 1985, although it has not borne the fruit expected of it; it is sufficient to verify the domestic legislator's lack of interest regarding the same in the subsequent national laws on arbitration, in particular, the Spanish Law of 1988. Another example has been the Model Law on Cross-Border Insolvency of 1997, which has been taken into account in the modern codifications and which is an example of how an adaptation of a Model Law can be investigated with procedural rules of the States. However, the technique of the Model Law has not been generalised in all of the international codification fora; for example, the Hague Conference on Private International Law has for many years abandoned the possibility of harmonising the rules of conflict of laws through model laws, techniques proposed by the North American representatives188, although this situation has recently been relaxed.

62. A law adopted by the national legislator, although technical in appearance, is always the translation of an ideology and of some interests and its content implies a common policy, which requires unity of sovereignty excluded by hypotheses189. On the other hand, a model law exemplifies the type of text whose objective is to harmonise domestic law, while a convention is an international instrument to which the States give their official approval in order to unify certain areas of their domestic law in the international sphere.

Apart from the Venezuelan and Panamanian cases, in the OHADAC countries there is an absence of a special law that regulates at least one substantial area of the problems of international legal transactions. In general, the different areas that form the content of private international law are the following: determination of the jurisdiction of the courts of the forum and determination of applicable law in the matters relating to foreign affairs and recognition and enforcement of judgments pronounced abroad. These areas have highly inadequate regulation and are located in different legal corpora which creates serious problems to ensure a joined-up response of the solutions proposed.

This construction points to the existence of a series of general criteria: firstly, independence in dealing with conflicts of laws and jurisdictional conflicts; secondly, the attractive nature of Caribbean jurisdiction, which is considered to be unlimited and unwavering. For the Caribbean courts, the solutions in this respond to a broad concept of the notion of jurisdiction in that it appears intimately connected to national sovereignty. This is clearly seen in:

  1. i) The pure and simple transposition at the international level of the vis atractiva which, in the domestic sphere, has ordinary jurisdiction for affirming in this manner the exclusive and exclusionary nature of national jurisdictions over foreign jurisdictions regarding civil transactions that have arisen on the national territory; on many occasions, this has to led to the application of the delimiting criteria of the domestic territorial jurisdiction under the circumstances connected with other countries.
  2. ii) The recognition of the jurisdiction of the Caribbean courts in the event of a dispute arising from a contract, even if the contract includes an express and unequivocal clause to submit the disputes to a foreign jurisdiction; to put it another way, it is not customary to admit that the private will of the parties can have a derogatory effect that clearly goes against the particular requirements of international commerce if the parties submit to a foreign court. And it contrasts with the existing regulation in the arbitration laws of the OHADAC countries, in which the plea as to the arbitrator's jurisdiction is admitted unequivocally if a arbitration clause is included in the contract and the effects of the submission to courts inserted in foreign jurisdictions if a clause of this type included in the contract are not regulated in procedural laws.

3. Main thrust of the OHADAC Model Law

A) Preference for civilist regulation

63. The question is related to the consideration of the content of private international law lato sensu or stricto sensu. It is undeniable that the conception mostly maintained in Latin America has for some years followed the so-called “broad conception”, which not only covers the classical sectors embodied by the French doctrine (nationality, foreignness, conflict of laws and conflict of jurisdictions)190, being ultimately dominated by a “conflict of laws-based” and “normativist” conception, but which also extends its regulations in areas as diverse as private, criminal or employment law191. The most significant example of this concept can be found in the Bustamante Code and currently in particular in the Panamanian Code of Private International Law. This double extension has disappeared from modern private international law legislations and, consequently, from the educational systems, although certain laws cannot avoid being inserted in certain commercial institutions.

Since it is not a regulation limited to resolving questions related to applicable law in the area, the Model Law does not lead to a general regulation of all of private international relations, preferring to focus on the resolution of the conflicts of laws and “civil” jurisdictions although the said limitation shows notable exceptions, such as the admission of foreign public law (article 65), the regulation of the employment contract (article 47), or the consideration of certain essentially commercial institutions.

64. Precisely in relation to the latter, some reflections are called for, which endorse its disregard in the Model Law. Overcoming formalism has led to a progressive separation between private international law and the law of international transactions (which some authors call the law of international commerce or international commercial law), understood as a legal system regulating the exchange of goods and services, whose objective is to provide a response to the relations between the parties to an international, commercial or financial operation or a cross-border provision of services. Although it is certain that from a privatist perspective the study of the system of commercial exchanges is fundamentally interesting, a complete study of the regulating system of the international commercial transactions must analyse the subjects of the said exchanges, entering into the company law and the framework of its operation: the international market. This study of the international market requires not only to address its protection mechanisms, especially in the sphere of free competition and access to the special properties, but also to study the very structure of the organisation of such a market: institutional organisation, structure and operation of the various regional markets and internal organisation of international commerce. Undoubtedly, it implies exceeding a purely privatist or mercantilist framework and makes it necessary to introduce concepts and developments of international administrative law and international economic law; but it would be absurd to analyse the regime of international exchanges without a view of the guidelines, on which such exchanges have to be developed and brought about.

Regardless of whether the law of international transactions can be conceived from a normativist perspective that places the emphasis on the “conflict of laws”192, the configuration of international commercial law as a special law largely rests, due to its rules, on a perspective related to the process of codification carried out in the UNCITRAL. In the light of the non-existence today of a law of international transactions common to all States, various sources of legal production, originating from institutions, conventions and domestic bodies, have to be combined. On this basis, this system can be defined as “all of the legal rules that govern the commercial operations carried out by private legal practitioners whose interests are located in different States”. Based on this definition, the following notes concerning the law of international transactions can be inferred: a) it comprises a normative block that governs the international commercial activity from national provisions as well as international treaties, as well as international professional legislation or international usages; b) it makes reference to all of the operations involving the conduct of trade, where it refers to the structure of the activity (status of the directors of companies), as well as in relation to the acts expressing the business activity (sale, competition...); c) it applies to all of the commercial and financial relations that affect persons who have interests or connections located in different States.

B) Overcoming the strict rule of conflict model and its unpredictable outcome

65. The narrow scope offered to the provisions dedicated to private international law has decisively influenced the distribution of matters regulated in the civil codes for the conservation of the statutory footprint (Cuba, Dominican Republic), although it is not without its detractors193. For this, the Venezuelan Private International Law Act expressly dropped this conservatism by refusing in its Explanatory Note “that a time-honoured statutory system, with its own original and plausible characteristics, has been corrupted by the practice and has ultimately evolved into a system shaped by territorialist ideas, or even worse, into a cluster of uncertain and unrelated solutions”.

66. Such a legislative technique also demonstrates that modern codification is inclined to abandon the rules of conflict with a single connecting factor to offer multiple connecting factors better adapted to the various relations and legal institutions that come in contact with international legal transactions194.

The rules of single connecting factor reflected the model developed in the middle of the twentieth century by the German jurist F.K. von Savigny, which, in its purest state, was the result of a normative structure composed of three elements. Firstly, of a factual situation that makes reference to the matter regulated and which can be a legal relationship (“effects of the marriage”, “succession mortis causa”, “issue of securities”, etc.), an institution (“guardianship and other institutions”, “adoption”, “possession”, “ownership”, etc.) or a subjective right (“right to maintenance payment”, “intellectual or industrial property rights”, etc.). Secondly, of a legal consequence that is not contained in the rule itself but needs to be determined indirectly through the mandate of enforcement established by the legislator with regard to an entire national law. Thirdly, of a connecting point whose mission is to attribute legal relevance to the foreign element, which may be encountered in the factual situation, establishing in it the location of the legal relationship in order to bring about the legal consequence (“law of the common nationality of the maintenance creditor and debtor”, “national law of the deceased”, “law to which the parties have expressly subjected themselves”, “law of the country in which they are granted”, etc...)195. It must be remembered that this author began by asserting that the function of the rule of conflict consisted in determining a substantive law among those theoretically applicable to a specific circumstance, that is to say a single law excluding all of the others, with the exception of the corrective measures imposed by the rule of conflict itself196.

The method outlined implied a highly automated and mechanic component which often ignored considerations of justice and which was rigidly and dogmatically focused precisely on the function of the rule, prioritising the objective of certainty and legal security above any other. No wonder it was classified with apparent success as a “blind machine”.

This rigid model contrasts starkly with the approach pursued by the rules of conflict contained in modern national legislations and in international conventions after the Second World War. The said rules, while maintaining the traditional structure, incorporate a substantive results orientation that gives a wider margin of discretion to the judge or the authority that applies them. This is the so-called “functionalised multilateral rule of conflict”, which continues to apply to the case either the law most closely connected to the same, or the law substantively most appropriate to the same, or the law that one or several of the parties involved consider to best reflect and be able to protect their interests, provided they are in accordance with a functionalist methodological approach.

C) Abandonment of the constructions based on the law of the nationality

67. Earlier, we referred to the European influence of the Code and to its favourable orientation to considering the nationality as a determining element of the system, while other options existing in Latin American are in favour of the domicile. However, mindful of the wide acceptance of the latter criterion, the Code granted each State party the power to apply, in addition to the laws of the nationality and the domicile, the laws “adopted or henceforth adopted by its domestic legislation” (article 7). It permitted the presence of rules based on territorialist principles. This was the option of most of the Caribbean countries197, apart from the case of Cuba and the Dominican Republic which, faithful to the Spanish and French legal tradition, supported the principle of the nationality. It was consistent with the provisions of article 3.3º of the Civil Code. In accordance with this provision, which was also included in article 9 of the first version of the Spanish Civil Code of 1889, not only the State and the capacity of the person but also family relationships and the law of succession were governed by the principle of the nationality, which implied the possibility of a broad concept of extraterritoriality of French, Spanish or Dominican law applicable to the nationals of these countries, in any place.

However, the solution based on national law, which was justified more than one century ago in countries such as France, Italy198, Spain, the Netherlands, Portugal or Switzerland, has not managed to establish itself in most of the legal systems, facing a strong challenge199 over many decades, which has been the result of an considerable polemic between the advocates of the national law and the advocates of the law of the domicile, which results in the acceptance of the habitual residence200. An eloquent example is found in the Belgian Code of Private International Law201, in the Venezuelan Private International Law Act, in the Dominican Draft Law, or in the Argentine Draft Law, where the use of the habitual residence is emphasised with the same attributive and indistinct value as the domicile of the natural persons, which was the classic attribution factor. This solution contributes powerfully to the achievement of a normative objective, which is finding increasingly acceptance.

Usually, one tends to set out and analyse the arguments that justify one or other of the solutions, identifying the respective advantages. Thus, for example, in favour of the national law, one invokes the following arguments : a) greater stability compared to the law of the domicile, since the latter can be changed more easily; b) its degree of certainty, because it is easier to determine the nationality of an individual than to locate their domicile; c) its greater adaptation to the particularities of the individual (race, religion, language...); d) its potential in the achievement of unitary solutions, for example, in relation to the members of a family. On the other hand, the advocates of the law of the domicile also produce weighty arguments: the law of the domicile a) largely conforms to the interests of emigrants in a foreign country; b) corresponds to the interests of third parties contracting with overseas contractors; c) reflects the person's better connection with the socio-economic environment where they carry on their activity; d) is the result of this integration of the foreigner in their environment, the achievement of a more cohesive society without legal distinctions between its citizens; e) creates a coincidence between the forum where the dispute is played out and the law applied by the judge; f) determines the connecting factor based on the law of the forum, without any consideration of the provisions of foreign legal systems on the nationality; g) is the best technical solution of specific problems as is the case of stateless persons or persons who hold two or more nationalities; and h) is better suited for legal persons and companies, which permits their mobility and improves their competitiveness, with a connection that can be representative of the market in which they operate202.

Although the polemic has reached a certain degree of abstraction, it can be affirmed that the nationality provides a predictable law, but which is frequently inadequate in relation to personal status, while the domicile will provide an adequate law but is sometimes difficult to determine; however, this does not imply that it is actually predictable. On the contrary, it may occur, especially in family relationships, that individuals presume the application of the law with which they are most connected, that is to say the law of the territory in which they are domiciled, maybe for decades; and what they find surprising is that the application of a national law does not show genuine connections with the individual anymore. In the countries in which the number of immigrants is quite high, the extension of the application of the national law is not only the cause of the practical difficulties resulting from the procedural application of the foreign law, but sometimes implies social discontent resulting from the application of regulations that do not have a relevant connection to the case, which leads to solutions which, although assumed by specialists, are frequently not expected by citizens.

In any case, the domicile is a conciliatory element in the dispute between absolute territorialism and personalism, a characteristic of nationality, used as a personal factor, in that it often permits the application of the law of the forum, without abandoning the possibility of applying the foreign law203. At the same time, the classification of the domicile as the habitual residence responds to the universal trend to relax this concept, for the purposes of its easy approval and at the same time in order to facilitate the localisation of applicable law. This new factor makes it necessary to look into two specific matters: the interpretation of the habitual residence that one identifies with and the scope of its application, on the one hand, for natural persons and, on the other hand, as a connecting factor for determining applicable law or the jurisdiction of the courts204.

68. Evidently, we are not facing a merely theoretical problem since the insertion of the connection to the nationality or the connection to the domicile into a certain system of private international law is not a neutral act but reflects the interests of the State at a certain time in history. The first national private international law legislations were not neutral in welcoming one or other solution: the reason that France, Italy, Spain or Germany adopted the national law to govern the personal status in some cases obeyed political considerations of affirmation of the national identity and in others the fact of being countries of emigration at that time. It is not by chance either that the challenge of this option and the defence of the law of the domicile are prevalent in countries that are traditionally receivers of foreigners. As has been indicated, in the group of Latin American countries the national connection underpinned by the Bustamante Code is not suited to the characteristics of many of these countries that were receiving a very significant number of emigrants in those years205.

But this is a historic debate, to some extent belonging to the past. Currently, the option between the nationality and the domicile is motivated by other reasons and is limited to the countries of the Romano-Germanic tradition, since in other legal circles such as the United States the question is reduced to determining whether or not the US regulation applies to the case of international transaction. For that the traditional method of the rule of conflict will be replaced by the determination of whether the circumstance has sufficient connection to this country so that its courts are declared to have jurisdiction and apply their own law.

Besides this change of perspective, there are conciliatory solutions. Most of the conventions of private international law that have sought to unify the solutions of the problems of international legal transactions in recent decades use as an alternative the “habitual residence”. This connection offers the advantage of locating the person in a real social environment and through its nature as a factual criterion tends to avoid the difficulties engendered by both the nationality as well as the domicile206. Specifically, the Inter-American Convention on Domicile of Natural Persons in Private International Law of 1979 classifies the domicile firstly as the location of the habitual residence and secondly as the location of the principal place of business, in absence of these circumstances, as the place of mere residence and, in absence of this, as the place where the person is located (article 2). The article shows the factual tendency of the residence that is observed in the compared legislations.

D) Modernisation of the system

69. It is evident that with the present Model Law the conception of private international law currently in force in many countries of the Caribbean needs to change and, within it, the consideration of the legal practice sometimes conceived based on a single legislative provision derived from article 3º of the Napoleonic Code, a nutritious source of various doctrinal constructions often inaccessible for uninitiated persons.

  1. i) One of the most innovative elements of the Model Law has been the incorporation of many solutions adopted for the international codification of private international law with the subsequent coordination of the clearly diversified laws involved. The Model Law thereby aims to reduce the delay of most of the countries of the OHADAC zone in the incorporation of rules originating from conventions in order to avoid the inevitable problems resulting from the “conflict of conventions”. The choice of the said solutions has been made after scrupulously pondering the advantages and disadvantages of the various alternatives and with the belief that, in legal matters, the most acceptable solution is simply the one that results in the fewest disadvantages in practice.
  2. ii) The Model Law is also sensitive to the evolution of society, incorporating rules adapted to the new times. In a number of its provisions it reflects the incidence of human rights in the area of private international law which are exercised in various matters and in various circumstances for guaranteeing, for example, access to justice, tempered with the logical limitation of national immunities (articles. 7 and 77), the rights of workers (article 47) or the bests interests of children (article 38)207; it is also sensitive to new phenomena such as the appearance of an international regulation of consumption (article 48). In this framework attention is paid to an increasingly common phenomenon, which is the family relationship between two persons apart from the institution of marriage, but with an affective relationship and life plan similar or very close to the traditional marriage. Article 34 in this sense opts for a moderate solution, and does not intervene beyond where this is necessary in practice but is conscious that an increasingly more specialised regulation exists in the comparative law regarding these figures.
  3. iii) The new reading of human rights and a central role of the person and their autonomy could not pass unnoticed in a modern regulation of private international law208. The idea that the parties are the best judges of their interests is an essential argument of legal construction for providing a response to multiple issues of international legal transactions209. Without entering into the polemic of what some years ago A.E. von Overbeck categorised as “irresistible extension of the autonomy of the will to private international law”210, the Model Law significantly innovates the traditional consideration of the autonomy of the will, whose scope has been considerably restricted in private international law. In the Law the said autonomy is not restricted to the scope of international contracts, which itself already implies a considerable advance compared to the Bustamantine model, but is extended to other areas beyond the traditionally decentralised areas:211 property relationships in marriage (article 31), divorce and legal separation (article 33), succession mortis causa (article 41), gifts (article 44), contracts in general (article 45), employment contracts (article 47), contracts concluded by consumers (article 48) and non-contractual obligations (article 52). This tendency reinforces the tendency to eliminate the conflict of laws problems in order to give rise to the connecting factor “nationality” to the action of the habitual residence in this area.
  4. iv) From the point of view of the international process, the Model Law incorporates an overriding objective of the traditional notions of sovereignty, territorialism and jurisdictional power. For this, it clarifies the difference between international procedural jurisdiction in the civil courts and domestic procedural jurisdiction. It also facilitates the determination of the jurisdiction of the forum, the exequatur of the acts emanating from foreign authorities, reinforces international judicial cooperation and adapts the procedural rules. And, for their part, the rules on international enforcement of judgments also imply a modernisation and rationalisation of the current provisions, which are better adapted to the criteria of technique and justice required by one of the most resonant problems in the life of private international law. It has become evident in this regard that, for practical reasons and as a matter of good legislative technique, other questions must continue to serve as specific matters of the procedural legislation or each State in particular.

4. Options regarding its acceptance

70. Private international law is an essential instrument in the management of the relations between the companies by facilitating the movement of persons and the exchange of goods and services and by fostering integration. From the early stages of the codification work, two essential alternatives have existed. Firstly, the first alternative consists in a global focus which considers a body of rules for addressing all of the regulatory requirements of relations of international transactions, while the second alternative opts for a more gradual and progressive process, which assumes the incorporation of international instruments in relation to specific issues. Without relinquishing the latter, i.e. without ignoring the codification work through international conventions, the option followed in the OHADAC Model Law of Private International Law is to provide a response to private international transactions in the globalised world, especially within the Inter-American integration processes. But it is a mission that must be measured, prudent and attached to the consolidated practice in Caribbean countries and its most immediate environment. In addition, the Law does not exclude the application of the special provisions related to private international law and included in other laws, and consequently its regulations have a general nature. Its article 2 expressly excludes certain matters which in view of their special nature recommend their insertion in a special law, in particular arbitration212 or bankruptcy.

The Model Law's claim of generality, however, must include some nuances in order to be accepted by a State of the OHADAC area:

  1. i) It does not have to be an all-or-nothing option. Mechanisms currently exist, which reconcile the possible conflicting interests by favouring the autonomy of the will. The necessary specialisation of the solutions for the specific problems also offers the possibility of choosing a speciality: there is no need to deposit the entire regulation in the national law, or any in the law of the domicile, or in the law of the habitual residence. An ad hoc choice is not only possible, but can be desirable. From this perspective, the present Model Law must thus be seen as a balanced mechanism of autonomous rules that can be incorporated into domestic law as a single text or as part of a specific area of the regulation of relations of international transactions.
  2. ii) The option is not neutral from a strictly practical point of view: it is vital to know the consequences of the option from the point of view of the application of foreign law. It is indisputable that the application of the judge's own law raises far fewer problems than the application of a foreign law. In addition, the justice dispensed in the application of an extremely well known domestic law is of better quality. Traditionally, the option for the law of the domicile tends to determine an increased percentage of application of the domestic law, given the connection that exists between domicile and legal jurisdiction. It depends on the demographic configuration of each State as well as on the particular type of dispute that is received by the courts and, also, on the criteria of international legal jurisdiction that attribute the legitimacy of action to their courts. This evolution corresponds to the social transformation of recent decades and the loss of relevance of nationality as an indicative element of special connection, in a context of wide-ranging migratory movements that frequently give rise to situations of dual nationality.
  3. iii) A preference for use of the habitual residence as a connecting criterion facilitates the coordination with the solutions established in the most modern of international cooperation instruments, including those already involving various countries of the OHADAC zone, as is the case of The Hague Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children.

Against this background, the Model Law merely intends to serve as a guide for the development of the codification of private international law in the countries of the OHADAC zone and as a reference for other initiatives of this type that occur in the American hemisphere.

71. In such a much discussed area as private international law the codification work is really very complex. If an articulated text is too technical and detailed, it risks imposing abstract constructions, which often are the result of sterile academic debates, quite remote from the specific interests of the Caribbean society. Regardless of its inadequacy for the contemporary needs, the Bustamante Code has been a foretaste of this type of texts which have lacked real significance. But by opting for the contrary solution, that is to say by developing an excessively simple and generalist system, there is a risk that the legislator's responses will lose their significance and be diluted when being applied by the judges, thereby giving rise to a breach of the necessary legal certainty required by the rules of private international law.

The Model Law aims as far as possible to correct this situation in order to achieve the two ultimate objectives of justice and legal certainty in the sphere of private international relations, a raison d'être of any rule of law, and harness the provisions to the characteristics and needs of the social, economic and human reality of the countries of the OHADAC zone. More specifically, the objectives pursued by it seek: a) to resolve the problems of the systems of private international law, characterised by their contradictions between codes and special laws; b) to adapt private international law legislation to the social reality of the States involved; c) to make the domestic solutions adequate for the accomplishments achieved in the international codification, especially based on the experiences obtained in the Hague Conference on Private International Law at the global level and in the Specialised Inter-American Conference on Private International Law at the Latin American level, without losing sight of the solutions reached by the unification of the private international law of the European Union based on the genuinely European origin of some OHADAC systems; and, d) to adapt the existing solutions in the countries involved in the universal development of the area and the most recent legislations, which have been converted into valid instruments for the harmonious development of the cross-border legal relations.

The principal objectives pursued by the present Model Law can therefore be synthesised into three objectives: transparency, modernity and international openness. For this, all of the provisions of private international law necessary for a Caribbean State are grouped together in a single text through simple and precise formulations.

5. Structure of the proposed text

72. The considerations made so far make it possible to lay down the guidelines of the present Law, justify the choice of a special law as an adequate legislative technique and the tripartite design of the matter regulated. It also makes it possible to distinguish the influences in the solutions adopted. Once the tripartite design is accepted - legal jurisdiction, applicable law, recognition and enforcement of judgments - the matter of the fundamental choice is raised: either to consider each private law institution individually and project onto this the solutions of each of these sections (as is reflected in part in the Swiss Private International Law Act, in the Belgian Code of Private International Law or in the Panamanian Code of Private International Law) or to introduce the institutions considered in each of the sections. It was considered that the latter option was more appropriate for allowing the legal practitioner to identify the specific matter of private international law at the time of its specific solution. The latter technique, which was adhered to by the Italian Private International Law Act, has also been followed by the Uruguayan Draft Law and by the Dominican Draft Law. In addition, the choice of a special law not only responds to the autonomous character of private international law, but for practical reasons and where and when required, it also facilitates its possible update213.

73. Title I (“Common provisions”) is preceded by the determination of the object of the Law which is none other than the regulation of the civil and commercial private international law relations regarding the extent and limits of Caribbean jurisdiction, the determination of applicable law and the conditions of the recognition and enforcement of foreign judgments, with three express exclusions: administrative matters, commercial arbitration and bankruptcy and other analogous procedures. Two general reservations to the application of the Law are then established: firstly, the preference for the international treaties ratified by the State that incorporates the Model law, meaning that these treaties will prevail over the provisions of the Model Law and, secondly, the preference for the provisions in special laws governing private international relations. The Title ends with a paragraph dedicated to the definition of the determining criteria of the law of the domicile and the habitual residence, both of natural persons and legal persons.

74. Title II (“Scope and limits of Caribbean jurisdiction in civil and commercial matters”) governs the scope of action of the courts of the State that adhered to the Model law and its limits through a series of criteria that connect the private international relations with these courts. The said criteria, classified as fora of jurisdiction, are the expression of the interests and objectives of legislative policy of the said State.

The provisions govern the exclusive fora that assign exclusive, unique and irrevocable jurisdiction to the courts of the State that incorporated the Model Law without it being possible for the court seized of the cases to refer to another court: real estate properties that are located in their territory, companies, entries made in a register of that State, intellectual property, recognition and enforcement of judgments in the territory of that State and arbitration awards handed down abroad, protective measures that are enforceable in the said territory and the matters related to the nationality. Secondly, two general fora are inserted, which assign jurisdiction to the courts of the State that incorporate the Model Law, whatever matter is affected in the case of international transactions when a submission is made to the said courts or the domicile of the defendant is located in its territory. Thirdly, special fora are included on the subject matter; in other words, if the courts of the State that incorporate the Model Law do not have jurisdiction according to the general fora, or if it is not a matter subject to the exclusive jurisdiction, the jurisdiction of said courts can be affirmed, due to the specific subject matter, according to the special fora. Each one of these fora regulates a specific matter or an institution or specific legal relationship within a same subject matter, and consequently it is impossible for two fora to be called on to determine international legal jurisdiction in the same subject matter.

To this is added the so-called “forum of necessity”, when it can be inferred from the circumstances that the situation shows some connection to the State that incorporates the Model Law and cannot include it in the international legal jurisdiction of any of the courts of the various States connected with the case, or if the reinforcement of the foreign judgment handed down is denied in the territory of the State that incorporates the Model Law. It admits the possibility that the Caribbean courts can, at the request of one party, abstain from hearing or continue hearing a case because of reasons that arise outside of the territory of the said State in a series of cases which in Anglo-Saxon terminology is determined as foro non conveniens.

75. Only if the matters related to international legal jurisdiction have been dispelled, and only then, will it proceed to raise the second question of private international law: the determination of applicable law. This point is dealt with in Title III, which is organised in two chapters.

The first chapter includes the so-called “regulatory rules”, whose function is to provide a response to the law governing the specific case of the private international transactions and which is organised in the following manner: law of the person, family relationships, protection of persons without legal capacity and support obligations, successions and donations, contractual obligations, non-contractual obligations and goods.

As far as the special options provided by the Draft Law are concerned, it must be taken into account that:

  1. i) The responses to the questions on applicable law provided in the law are not in conflict with the commitments in conventions that oblige the State to incorporate the Model Law; when this circumstance occurs, they use the technique of incorporation by reference of the substantive content of the Convention into the legal system with erga omnes effects.
  2. ii) The normative model selected has been the model of the multilateral rule of conflict in a functional dimension, surpassing the model designed almost two centuries ago and that was in force for a good part of the twentieth century. The said model is characterised by substantification criteria, concerning the factual situation, and flexibilisation with the establishment of successive or alternative connecting points, and substantification, through the search for the fairest solution possible.
  3. iii) As regards contractual obligations it opted for the responses provided by one of the more technically precise Inter-American legal texts, the Inter-American Convention on the Law Applicable to International Contracts, signed in Mexico on 17 March 1994 which, among other things, leans towards the expediency of transferring to the judge the task of locating the legal system strictly connected to the contract, in the absence of choice by the parties, permitting him to resolve the question of applicable law on a case-by-case basis.
  4. iv) Although the substantive scope of this Title pays special attention to civil and commercial matters, it has been considered appropriate to provide a response to applicable law regarding the employment contract, which, as a typical contract concluded with a weak party, has undergone a specific evolution geared to the protection of the individual worker depending on the intrinsic protective nature of the employment legislation.

76. The second section comprises a normative block related to the so-called “rules of application” addressed to the judge or the authority in charge of carrying out the mandate of the “regulatory norms”. It is a block that provides responses to the so-called general problems of application of the rules of conflict and which in the past provided significant developments of court rulings and doctrine due to the intrinsic shortcomings of the rule of conflict in its original formulation. With a new model of the rule of conflict which is included in the Model Law many of these problems disappear, which is why it does not appear appropriate to produce a detailed management of these following, for example, the model incorporated in the CIDIP's Convention on General Rules of Private International Law of 1979214 (which does not have particular prestige the Caribbean States). It justifies that this paragraph is written in very brief terms and with a simplifying objective215, as is evident, for example, from the exclusion of the renvoi doctrine. Even so, it is necessary to pay attention to the rules of determination and interpretation of foreign law, including the rules of public law, as well as recourse to public policy as a functional corrective. And, without blindly relying on the tradition, it has appeared appropriate to include in the Model Law three institutions which, despite their formulation in the past, continue to play a relevant role today: the adaptation, the referral to a legal system with more than one system of law and the rights acquired.

77. The third question of private international law, in relation to the recognition and enforcement of judgments and foreign acts, is the object of Title IV, which refers to foreign judgments and is supplemented by specific provisions regarding the recognition of legal acts executed abroad with a special emphasis on the acts of voluntary jurisdiction and on a particularly sensitive matter for Caribbean society, the recognition of adoptions and the resolutions on parent-child relations pronounced abroad. Finally, the Title pays attention to a section required by a response in our legal system which is related to the effectiveness of the foreign public documents.

6. Methodology and participants

78. The methodology adopted has been based on the collection, analysis and selection of the available information on private international law of the States of the area concerned based on sectoral studies, some based on a specific State system and others focused on the common denominator of States currently sharing the same legal orientation. This is the case of the territories to some extent governed by the British, French, Dutch and US system. This methodology has made it possible to process quantitative and qualitative information in order to provide systematic and multidimensional insight into the regulations involved in the area concerned.

79. During the first stage, a questionnaire aimed at the territories and States that constitute the OHADAC zone was produced for exploring the specific solutions that are held in these in relation to private international law.

In general terms, after a brief discussion of the political, social and economic situation of the territory or State concerned, the inquiry sought a response to the following questions:

  1. i) Membership of a regional economic integration system or a free trade treaty of the territory concerned;
  2. ii) Connection of the legal model to a specific legal family, both from the perspective of substantive law as well as from the perspective of private international law;
  3. iii) Characteristics of the domestic system of private international law, namely if they have a special law or reform projects in this regard, if the provisions are based on different legal corpora, if the Civil Code is the basis of the regulation or, finally if the solutions result from the judges' own creation;
  4. iv) List of the domestic rules that provide a response: a) to the questions of international legal jurisdiction, b) to the questions of applicable law and, c) to the questions of recognition and enforcement of judgments;
  • v) Participation in international treaties of private international law, with reference to the date of incorporation and the possible existence of reservations or interpretive declarations : a) Multilateral treaties (of the Hague Conference on Private International Law, on UNCITRAL, on UNIDROIT, on the Specialised Conferences on Private International Law, and others); b) bilateral treaties: on recognition and enforcement of judgments in civil and commercial matters, judicial assistance in civil matters, nationality, international adoption, protection of children, and others. This list of conventions is well known to be based on the scope of the participation of the States and territories that conform to the OHADAC in the international treaties of private international law, both in their multilateral dimension, mainly expecting those stemming from the CIDIP and the Hague Conference on Private International Law, as well as in its bilateral dimension. This examination claims two essential objectives, firstly, to observe the level of acceptance in the territory considered of the rules of conventions for the purposes that can serve as an inspiration for the planned Model Law; secondly, to verify the contradictions that these instruments could provoke in a modern regulation of private international law, and to alert the recipient States that the adoption of the draft of the Model Law, in whole or in part, would entail the risk of certain provisions being relinquished by the recipients of the same.
  • vi) Established court rulings of the system (“les grands arrêts de la jurisprudence en matière de droit international privé”). This was a matter of obtaining the broadest possible information on the decisions of the courts of the member territories and States concerned in relation to international legal transactions. The said information has been of invaluable usefulness at the time of drafting the text of the Model Law and opting for the specific solution in the regulation of the various matters to be considered.
  • The observations of the said questions were to be accompanied by annexes of relevant legislation and established court rulings in relation to the State or territory concerned.

    80. Once the legal basis or established court rulings of each specific system are in place, a study of the responses, if any, to the three basic questions of the subject matter is carried out. These are: firstly, the regulation of international legal jurisdiction of the courts; secondly, the determination of applicable law; and, finally, the rules of recognition and enforcement of foreign judgments. This examination comprised private international law stricto sensu, with the inclusion of the law of the person, both natural and legal, and of the family, the law of succession, the law of obligations and contracts and the rules on rights in rem.

    The matters in relation to the law on the international transactions, which are the subject of other paralegal studies in the framework of this project of the OHADAC zone directed by Professors Sixto Sánchez Lorenzo and Rodolfo Dávalos Fernández and which in future will require greater consideration based on the complexity of the matter, were excluded.

    81. During this first stage the team was large and covered various Caribbean areas. The study of the British overseas territories was carried out by Jose Maria del Rio Villo, Rhonson Salim and James White, who, after evaluating the data of the survey carried out in these territories, published a document entitled “Collective Notes on Private International Law in Certain Caribbean States”; Lukas Rass-Masson, a researcher at Université Paris II-Assas in another document emphasised the vitality of the Dutch influence in a context of diversity of the emancipation models; finally, a study by Professor Bertrand Ancel at Université Paris II-Assas emphasised the current robustness of French sovereignty in the OHADAC zone, in particular on four island groups and one continental territory, inhabited by more than one hundred thousand inhabitants.

    Moving on to the study of the national systems of private international law, there has been a comprehensive study, also based on the results of the previously prepared questionnaire on the Colombian rules of private international law by Patricia Orejudo Prieto de los Mozos, titular professor of private international law at Complutense University of Madrid and José Luis Marín Fuentes at University of Medellín; Professor Ana Fernández Pérez at University of Castilla la Mancha has paid attention to the systems of Costa Rica and Puerto Rico, the latter of very great interest for two reasons, on the one hand, because it constituted the crossroads of two traditionally contrasted models (civil law and common law) and, on the other hand, because of an important reform initiative based on a text in which Professor Symeon C. Symeonides of the University of Willamette was a special rapporteur; Professors José Carlos Fernández Rozas and Rodolfo Dávalos Fernández studied the Cuban system and the first of these professors, together with Professor Nathanael Conception of the Global Foundation for Democracy and Development of the Dominican Republic, the system currently in force in that country together with the detailed analysis of the Draft Private International Law Act presented to the Parliament in 2014, in which both professors participated as members of its drafting committee; turning now to Central America, the Nicaraguan rules have been examined by Enrique Linares, research fellow at Complutense University of Madrid, while the Honduran investigation has been carried out by Professor Gaudy Bustillo of the National Autonomous University of Honduras; for the study of the Panamanian system and the Draft Reform Law of 2013 Dr. Juan Cárlos Aráuz Ramos, Vice-Dean of the College of Lawyers of Panama, has very much taken into account the contributions of the Dean of the Faculty of Law of the University of Panama, Gilberto Boutin and the ambitious Mexican Code of Private International Law has been the subject of examination by Professor José Carlos Fernández Rozas as a member of the Mexican Academy of Private International Law and Comparative Law; finally, the complete Venezuelan model has been exhaustively examined by Dr Claudia Madrid Martínez, Associate Professor at the Central University of Venezuela and in the Catholic University Andrés Bello.

    82. Once the results of the survey were examined, Professor José Carlos Fernández Rozas was named as rapporteur for producing a preliminary draft. In the said preliminary draft the model was determined from the perspective of the legislative technique based on the option of a special law. For this, the rapporteur followed the processes that were taking place in Europe based on the Austrian, Turkish, Swiss, Belgian, Italian and Polish experiences and in Latin America at very close quarters, taking as a reference the processes pursued in Venezuela and Panama, which concluded satisfactorily, and the landmarks that have been achieved in Puerto Rico, Colombia and Uruguay and, more recently, those that are being developed in Mexico and in the Dominican Republic.

    The rapporteur was faced with the alternative to determine whether a system that referred to the matters regulated was more suitable or, on the contrary, it was more appropriate to introduce a tripartite structure, in which the determination of international legal jurisdiction must proceed to the solution of the problems of applicable law concluding with the questions referring to the recognition and enforcement of judgments opted for this second method.

    The draft of the Model Law was presented for the consideration of the five members of the Drafting Committee of the Draft Law: Prof. Dr. Bertrand Ancel, Chair of Private International Law at University Paris II-Assas, Prof. Dr. Pedro A. De Miguel Asensio, Chair of Private International Law at Complutense University of Madrid, Prof. Dr. Rodolfo Dávalos Fernández, Principal Professor at the University of Havana and Prof. Dr. Santiago Álvarez González, Chair of Private International Law at the University of Santiago de Compostela. After extensive debates between the Committee and the rapporteur, the latter incorporated the observations into a new text, which was again the subject of discussion and as a result the text of the Model Law, which is now being presented for discussion and debate.

    83. In order to facilitate the discussion of the said text, the Drafting Committee and the rapporteur were distributed the provisions contained in the articulated text of the draft law for the purpose of drafting the appropriate remarks, where the option chosen in each one of the provisions will be justified, from a perspective of the legislative and doctrinal technique and backed up in the data provided by the responses to the pre-drafted questionnaire, with the appropriate comparative law references compared to the various legal systems of the States and territories that form the OHADAC zone and examples of the implementation. In the preparation of the said individualised commentaries the Drafting Committee had the cooperation of Professor Rafael Arenas García Chair of Private International Law of the Autonomous University of Barcelona and María Pilar Jiménez Blanco, titular professor, habilitated Chair of Private International Law at the University of Oviedo.

    7. Public dissemination and debate

    84. The presentation of the present Model law is not an end in itself. It is no more than the completion of a stage whose aim was to present in a codified form an entire series of studies prepared by a committee as part of a collaboration agreement with ACP legal. The dissemination of these results seeks to contribute to the knowledge of the current situation and open up a debate on the strategies, instruments and management of a future codification of this matter.

    Considering the great political or economic importance of the Model Law and taking into account that the proposed regulation is highly complex and very extensive, the participation with the interested agents (either through the lobbies or directly) may easily be considered as inadequate or incomplete. For this reason, it is necessary to commence with a public dissemination of this instrument with the objective of making known its points of view and any of its ideas in the study, inviting all of the agents or individuals concerned to participate in order to make them listen to their impressions, opinions or fears concerning a possible regulation of this matter. The consideration that takes hold after the publication of the results of this phase will be essential for making it possible to have sufficient perspective of the opinions and concerns shown and be able to proceed to develop a definitive proposal, which will subsequently have to be followed its legislative course.

    The process of public debate that will be commenced after the adoption of the text is an excellent opportunity for the pressure groups and other interested parties to be able to make their opinions known, defend their interests, and have a conclusive influence on the decision-making process. For this, after the phase that ended with the present instrument, another more important phase will be opened with its implementation by the legal practitioners, organisations and interested individuals in order to invite them to participate in a consultation and debate process, whose results will again result in a new consolidating text. It is a matter of establishing a participation mechanism of the areas involved which permits them to present their proposals, opinions or any discrepancies in the process of adoption of the final text of the Model Law. An international congress should evaluate the results and establish the definitive drafting mechanism.

    One should not forget that it is not the States but private individuals who directly experience the consequences of the rules of private international law: the submission of a dispute to other State jurisdiction or the application of one or other substantive law are consequences that directly benefit or adversely affect the individuals involved and only indirectly the States.

    85. In summary, the purpose of the Model Law is to use an integrated and structured normative block:

    1. i) To show, in a coherent manner, a series of quantitative data and qualitative information which permits an evaluation of the existing instruments, their potentialities and their demands, which can be useful for the optimisation of the codification of private international law in the delimited geographical framework. In this respect, a set of resources and essential procedures is provided for developing a draft regulation based on a justification and the drafting of the substantive content in an accessible manner to the subjects for whom it is intended.
    2. ii) To specify the necessity, social or institutional need that one wishes to satisfy through the regulation that is going to be addressed, and to delimit the scope regulated with an assessment of the legal and substantive viability and the procedures and documents that might be deemed appropriate.

    In this phase the only word spoken is by the national parliaments, who are the only depositories of popular sovereignty.

    1 The idea of compatibility between regional integration and growing liberalisation was used to formulate the concept of open regionalism. This formulation, first used by the APEC, was adopted and disseminated in Latin America by the ECLAC. The Commission defines open regionalism as the “interdependence that stems from preferential agreements and the interdependence which basically arises from the market signals that are produced by trade liberalization in general”. It is assumed that due to the current trends towards the globalisation of competition and production, countries are compelled to open their economies to international trade and investment. However, this does not exclude preferential - and thus deeper - market opening to other countries of the same region; on the contrary, general liberalisation and preferential market opening can be complementary, so as to increase competition and boost the economy. Vid. M.R. Agosin, “Las experiencias de liberalización comercial en América Latina: lecciones y perspectivas”, Pensamiento Iberoamericano, nº 21, 1992, pp. 13-29, esp. p. 15. M. Kuwayama, Open Regionalism in Asia Pacific and Latin America: A Survey of the Literature, Santiago de Chile, Cepal, 1999, and the compiled work by the same author, Nuevas políticas comerciales en América latina y Asia. Algunos casos nacionales, Santiago de Chile, Cepal, 1999.

    2 J.C. Fernández Rozas, Sistema del comercio internacional, Madrid, Civitas, 2001, nº 98 et seq.

    3 It does not coincide with the notion of “economic integration”. In Latin America, since its creation the ECLAC has called for commercial integration in the region and has somehow attempted to achieve it through the integration process within the framework of the Latin American Free Trade Association (LAFTA) and subsequently of the Latin American Integration Association (LAIA).

    4 P. McClauren, “The Status of Consumer Protection Policy in the Caricom Region”, L'inte´gration e´conomique re´gionale et la protection du consommateur. Regional economic integration and consumer protection. La integracio´n econo´mica regional y la proteccio´n del consumidor, Cowansville, Québec, Blais, 2009, pp. 277-294.

    5 G. Ibarra Pardo, “Políticas de competencia en la integración en América latina”, Integración Latinoamericana, September 1993, pp. 45-51.

    6 J.C. Fernández Rozas, “Un nuevo mundo jurídico: la lex mercatoria en América Latina”, Estudios sobre Lex Mercatoria. Una realidad internacional, Mexico D.F., Instituto de Investigaciones Jurídicas. Universidad Nacional Autónoma de México, 2006, pp. 61-127.

    7 M.M. Fogt, “Private International Law in the Process of Harmonization of International Commercial Law”: the ‘Ugly Duckling'?”, Unification and Harmonization of International Commercial Law: Interaction or Deharmonization?, Alphen aan den Rijn, Kluwer Law International, 2012, pp. 57-103.

    8 Cf. M. Virgós and F.J. Garcimartín Alférez, “Estado de origen vs. Estado de destino”, InDret. Revista para el análisis del Derecho, 4/2004, p. 6. http://www.indret.com/pdf/251_es.pdf.

    9 G.A.L. Droz, “L'harmonisation des règles de conflits de lois et de juridictions dans les groupes régionaux d'États”, Études de droit contemporain (VIème Congrès international de droit comparé, Hambourg, 1962), Paris, Cujas, 1962, pp. 275-292.

    10 L. Limpens, “Relations entre l'unification au niveau régional et l'unification au niveau universel”, Rev. int. dr. comp., 1964, pp. 13-31.

    11 At the political level, besides the institutions specific to each sub-region, the Rio Group exerts some influence in the Caribbean. Originally composed of ten South American countries, Panama and Mexico, a South American representative and a Caribbean one, it now comprises: Argentina, Belize, Bolivia, Brazil, Chile, Colombia, Costa Rica, Cuba, Dominican Republic, Ecuador, El Salvador, Guatemala, Guyana, Haiti, Honduras, Jamaica, Mexico, Nicaragua, Panama, Peru, Suriname, Uruguay and Venezuela. It is a consultation and cooperation mechanism which ensures the maintenance of democracy and coordinates positions on Latin American foreign relations through heads of State and government of the region. The Rio Group, which was conceived as a Permanent Mechanism of Political Consultation and Coordination (MPCCP in Spanish), is currently the most important Latin American and Caribbean forum for discussion.

    12 J.C. Fernández Rozas, “Los modelos de integración en América latina y el Caribe y el Derecho internacional privado”, Iberoamérica ante los procesos de integración. Actas de las XVIII Jornadas de Profesores de Derecho Internacional y Relaciones Internacionales, Madrid, BOE, 2000, pp. 151-192.

    13 E. Pérez Vera, “Reflexiones sobre los procesos de integración regional”, RIE, 1977, pp. 669-700, esp. p. 699.

    14 Cf. K.P. Berger, The Creeping Codification of the Lex Mercatoria, The Hague, Kluwer, 1999, p. 230.

    15 J.J. Garcimartín Alférez, “La racionalidad económica del Derecho internacional privado”, Cursos de Derecho internacional de Vitoria-Gasteiz 2001, Servicio Publicaciones Universidad del País Vasco, 2002, pp. 87-154, esp. pp. 100-101.

    16 F. Rigaux, “Codification of Private International Law: Pros and Cons”, Lousiana L. Rev., vol. 60, nº 4, 2000, pp. 1321-1330.

    17 As an example, reference can be made to the unification process which once took place within the Benelux regarding the “conflict of laws”. Vid. L.I. de Winter, “La nouvelle version du Projet Benelux de loi uniforme de droit international privé”, Rev. crit. dr. int. pr., 1968, pp. 577-606; K.H. Nadelmann, “The Benelux Uniform Law on Private International Law”, Am. J.Comp. L., vol. 18, 1970, pp. 406-419.

    18 Vid. infra commentaries on arts. 1 and 3.2 of the present Law.

    19 In 1950, the ECLAC provided recommendations to Latin American countries to ensure that the possibility of a growing demand through mutual exchange was taken into account when developing economic programmes and incentives in order to achieve a better integration of their economies.

    20 F. Rueda Junquera, “Integración económica en América Latina y el Caribe. Del regionalismo cerrado al regionalismo abierto”, El Estado de Derecho Latinoamericano. Integración económica y seguridad jurídica en Iberoamérica (I. Berdugo Gómez de la Torre and R. Rivero Ortega, eds.), Salamanca, Ediciones Universidad de Salamanca, 2003, pp. 123-161.

    21 J.C. Fernández Rozas, “El marco general de la integración latinoamericana”, El Tratado de Libre Comercio, la integración comercial y el Derecho de los mercados (R. Rincón Cárdenas, E. Santamaría Ariza and J.J. Calderón Villegas”, eds.) Bogota, Editorial de la Universidad del Rosario, 2006, pp. 152-179, esp. pp. 161-162.

    22 O. Dabène, The Politics of Regional Integration in Latin America. Theoretical and Comparative Explorations, New York, Palgrave, Macmillan, 2009.

    23 M. Burac, H. Godard and F. Taglioni, “Le bassin caraïbe dans les Amériques: intégration régionale ou continentale?”, Mappemonde, nº 72, 2003-4, pp. 12-15. http://www.mgm.fr/PUB/Mappemonde/M403/Integration.pdf.

    24 Vid. for Latin America, J. Luch English, La théorie politique de l'intégration et son application à l'Amérique latine, Louvain, Institut de Science Politique de l'Université Catholique, 1970.

    25 V.gr., the revised Treaty of Chaguaramas establishing the Caribbean Community as well as the CARICOM Single Market and Economy, the Treaty of Basseterre establishing the Organization of Eastern Caribbean States or the Agreement setting up a free-trade area between the Caribbean Community and the Dominican Republic.

    26 It is a space for political dialogue created in October 1992 for the purpose of managing and coordinating the financial assistance provided by the European Union to the Caribbean signatory countries of the Lome Conventions and promoting integration and cooperation in the Caribbean. Its members are: Antigua and Barbuda, the Bahamas, Barbados, Belize, Cuba, Dominica, the Dominican Republic, Grenada, Guyana, Haiti, Jamaica, Suriname, Saint Lucia, Saint Christopher and Nevis, Saint Vincent and the Grenadines, Suriname and Trinidad and Tobago. The following British and Dutch territories have observer status: Anguilla, Aruba, British Virgin Islands, Cayman Islands, Montserrat, Turks and Caicos Islands and Netherlands Antilles. The following French Overseas Departments in the Caribbean also have this status: French Guiana, Guadeloupe and Martinique. Vid. D.A. Mohammed, “The Cariforum-EU Economic Partnership Agreement: Impediment or Development Opportunity for Caricom SIDS?”, The Diplomacies of Small states: Between Vulnerability and Resilience, Basingstoke, Palgrave MacMillan, 2009, pp. 160-177.

    27 The islands of Antigua and Barbuda, Dominica, Grenada, Montserrat, Saint Christopher and Nevis, Saint Lucia and Saint Vincent and the Grenadines are associate members of the Organization. Its objectives include promoting economic integration between member States and cooperation both on a regional and international level.

    28 It is a regional-level intergovernmental body, consisting of the heads of State and government of Latin America and the Caribbean, who gathered at the Latin American and Caribbean Unity Summit, constituted by the 21st Summit of the Rio Group and the 2nd CALC (Latin American and Caribbean Summit on Integration and Development), in the Mayan Riviera, Mexico, on 22 and 23 of February 2010. Its objective is to “decidedly advance toward an organisation gathering all Latin American and Caribbean States”.

    29 P. Francescakis, “Problèmes du droit international privé de l'Afrique noire indépendante”, Recueil des Cours, t. 112 (1964-II), pp. 269-361; V. Babini, “Il diritto internazionale privato quale elemento di armonizzazione dei diritti dei nuovi Stati africani”, Riv. dir. int. pr. proc., vol. III, 1967, pp. 302-314; U.U. Uche, “Conflict of Laws in a Multi-Ethnic Setting Lessons from Anglophone Africa”, Recueil des Cours, t. 228, (1991-III), pp. 273-438.

    30 G. Ngoumtsa Anou, “La régionalisation pour le droit: l'exemple de l'OHADA”, La régionalisation du droit international (S. Doumbe´-Bille´, coord.), Brussels, Bruylant, 2012, pp. 189-207.

    31 The Organization for the Harmonization of Business Law in Africa has adopted acts of substantive law designed to achieve uniformity, called Uniform Acts. These texts, applicable to internal and international matters, replace the substantive law of member States in the area of uniform law. They thus avoid conflicts of laws and do not have to come up with problem solving methods, but to a limited extent. Unified law is incomplete insofar as it does not solve all the issues it deals with, either because of its deficiencies or because the Community order prefers to submit said issue to an external legal order. Some conflicts of law persist and can only be solved through national or Community conflict rules. Furthermore, unified law applies to extra-Community situations through conflict rules and borrows the mechanisms of private international law to ensure the respect of its values. That is the reason why a public international order of the OHADA and overriding mandatory provisions exist, as is the case in the European Union law. Therefore, the emergence of private international law from the OHADA is bound to develop with regard to conflicts of laws and jurisdictions. By comparing the OHADA to the European experience, the book aims to determine the influence of legal integration in private international law. Vid. G. Ngoumtsa Anou, Droit OHADA et conflits de lois, Paris, LGDJ, 2013.

    32 P. Gannagé, “Observations sur la codification du droit international privé dans les États de la Ligue arabe”, Études en l'honneur de Roberto Ago, vol. IV, Milan, Giuffrè, 1987, pp. 105-123.

    33 A. Payne, “The Rise and Fall of Caribbean Regionalisation”, Journ. of Common Market Studies, vol. XIX, 1981, pp. 225-280; H.S. Gill, “Caricom: origen, objetivos y perspectivas de integración en el Caribe”, Integración Latinoamericana, nº 191, 1993, pp. 37-44.

    34 E.E. Espinosa Martínez, “La Asociación de Estados de Caribe: una nueva realidad institucional”, Economía y Desarrollo, vol. 126, nº 1, 2000, pp. 71-96.

    35 A.P. Gonzales, “Caricom and Strategic Adjustment Options in the Post-Lome´ World”, Les relations ACP/UE après le modèle de Lomé: quel partenariat?, Brussels, Bruylant, 2007, pp. 3-27.

    36 In August 1998, the Dominican Republic and the countries of the Caribbean Community (CARICOM) signed the Agreement establishing a free-trade area between both parties. The National Congress ratified this Agreement in February 2001 by Resolution 38-01. Vid. J.C. Fernández Rozas and L. Contreras, Derecho del comercio internacional y política comercial de la República Dominicana, Santo Domingo, Funglode, 2013, pp. 197 ss.

    37 J.C. Fernández Rozas, “Orientaciones del Derecho internacional privado en el umbral del siglo XXI”, Revista Mexicana de DIPr, nº 9, 2000, pp. 7-32.

    38 C. Kessedjian, “Le droit international privé et l'intégration juridique européenne”, Intercontinental Cooperation through Private International Law: Essays in Memory of Peter E Nygh (T. Einhorn & K Siehr, eds), The Hague, TMC Asser Press, 2004, pp. 192 et seq.

    39 S. Alvarez González, “Objeto del DIPr y especialización normativa”, Anuario de Derecho Civil, t. XLVI, 1993, pp. 1109-1151.

    40 C. Mouly, “Le droit, peut-il favoriser l'intégration européenne?”, Rev. int. dr. comp., 1985, pp. 895-945; V. Heutger, “Worldwide Harmonisation of Private Law and Regional Economic Integration”, European Review of Private Law, vol. 10, 2002, pp. 857-864.

    41 E. Jayme and C. Kohler, “L'interaction des règles de conflit contenues dans le droit dérivé de la Communauté européenne et des conventions de Bruxelles et de Rome”, Rev. crit. dr. int. pr., 1985, pp. 15-16.

    42 Vid. J.Mª Gondra Romero, “Integración económica e integración jurídica en el marco de la Comunidad Económica Europea (Una aproximación al proceso de integración del Derecho en el ámbito de la Comunidad Europea, desde una perspectiva sistemático-funcional)”, Tratado de Derecho comunitario europeo, vol. I, Madrid, Civitas, 1986, pp. 275-312.

    43 J.C. Fernández Rozas, “Derecho internacional privado y Derecho comunitario”, loc. cit., pp. 785-786.

    44 Vid. infra, arts. 45 et seq. of the present Law.

    45 Regarding the Spanish experience, vid. N. Downes Peirú, “Reflexiones en torno al turismo en el Derecho internacional privado español”, Anales de la Facultad de Derecho de la Universidad de La Laguna, nº 18, 2001, pp. 117-136.

    46 M.C. Belderrain Boer, “Globalização e Turismo: efeitose tendências”, Relações internacionais & globalização: grandes desafios (O. de Oliveira, coord.), 2nd ed. Ijuí: Ed.Unijuí, 1999, pp. 285-318.

    47 A. Calderón Hoffmann, “Foreign Direct Investment in Latin American and the Caribbean; an Assessment at the Start of the New Millenium”, Foreign Direct Investment in Latin American: The Role of European Investors, Washington D.C., Inter-American Development Bank, 2001, pp. 17-41; J.P. Tuman&C.F. Emmert, “The Political Economy of U.S. Foreign Direct Investmentin Latin America: A Reappraisal”, Latin American Research Rev., vol. 39, nº 3, 2004, pp. 9-28; J.D. Daniels, J.A. Krug and L. Trevino, “Foreign Direct Investment from LatinAmerica and the Caribbean”, Transnational Corporations, vol. 16, nº 1, 2007, pp. 27-54.

    48 R. Dolzer and M. Stevens, Bilateral Investment Treaties, London, M. Nihjoff Publishers, 1995; G. Sacerdoti, “Bilateral Treaties and Multilateral Instruments on Investment Protection”, Recueil des Cours, t. 269, 1997, pp. 251-460; J.C. Fernández Rozas, “América Latina y el arbitraje de inversiones: ¿matrimonio de amor o matrimonio de conveniencia?”, Revista de la Corte Española de Arbitraje, vol. XXIV, 2009, pp. 13-37.

    49 J.C. Fernández Rozas, Tratado de arbitraje comercial internacional en América Latina, Madrid, Iustel, 2008; A.M. Garro, “Enforcement of Arbitration Agreements and Jurisdiction of Arbitral Tribunals in Latin America”, J. Int'l Arb., vol. 1, nº 4, 1984, pp. 293-321; H.A. Grigera Naón, “Arbitration in Latin America: Overcoming Traditional Hostility”, Arb. Int'l, vol. 5, n 2, 1989, pp. 146-148; R. Layton, “Changing Attitudes Toward Dispute Resolution in Latin America, J. Int'l Arb., vol. 10, 1993, pp. 123 et seq.; D.E. González, G.F. Hritz, M. Rios and R.C. Lorenzo, “International Arbitration: Practical Considerations with a Latin American Focus”, The Journal of Structured and Project Finance, Spring, 2003, pp. 33-43; R. Santos Belandro, “Brisas favorables de orientación estatal impulsan, a vela desplegada, el arbitraje comercial internacional en la región”, Estudios de arbitraje. Libro homenaje al profesor Patricio Aylwin Azócar, Santiago, Editora Jurídica Chile, 2006, pp. 553-565.

    50 R. Badinter, “L'universalité des droits de l'homme dans un monde pluraliste”, Revue universelle des droits de l'homme, 1989, pp. 1 et seq.; M. Bedjaoui, “La difficile avancée des droits de l'homme vers l'universalité”, ibid., pp. p. 5 et seq.; J.A. Carrillo Salcedo, “El problema de la universalidad de los derechos humanos en un mundo único y diverso”, Derechos culturales y derechos humanos de los inmigrantes, Madrid, Universidad Pontificia de Comillas, 2000, pp. 39-53.

    51 E. Ralser, “Pluralisme juridique et droit international privé”, Revue de la recherche juridique. Droit prospectif, 2003 pp. 2547 et seq.

    52 J.C. Fernández Rozas, “Los modelos de integración en América latina...”, loc. cit., pp. 151-192.

    53 A. Dreyzin de Klor: El Mercosur (Generador de una nueva fuente de Derecho internacional privado), Buenos Aires, Zavalia, 1997; D.P. Fernández-Arroyo, “La nueva configuración del DIPr del Mercosur: ocho respuestas contra la incertidumbre”, Revista de Derecho del Mercosur, vol. 3, 1999, pp. 38-53.

    54 The originality of the Community experience and its influence within private international law is accurately described in the course of M. Fallon, “Les conflits de lois et de juridictions dans un espace économique intégré: l'expérience de la Communauté européenne”, Recueil des Cours, t. 253, 1995, pp. 25 et seq., and of A. Struycken, “Les conséquences de l'intégration européenne sur le développement du droit international privé”, Recueil des Cours, t. 232, 1992, pp. 257 et seq.

    55 Vid. J.C. Fernández Rozas, “Nuevas perspectivas de la cooperación en el ámbito de la justicia en la Unión Europea”, “Los dos pilares de la Unión Europea, Madrid, Colección Veintiuno, 1997, pp. 239-267.

    56 This paragraph uses the arguments of S. Sánchez Lorenzo, Introducción al Derecho de los contratos internacionales, Santo Domingo, Funglode, 2013, pp. 36 et seq.

    57 A. Borrás, “La comunitarización del Derecho internacional privado: pasado, presente y futuro”, Cursos de Derecho Internacional y Relaciones Internacionales de Vitoria-Gastez 2001, pp. 285-318; M. Desantes and J. L. Iglesias Buhigues, “Hacia un sistema de Derecho Internacional privado de la Unión Europea”, AEDIPr, t. IX, 2009, pp. 115-128; P.A. de Miguel Asensio, “Integración europea y Derecho internacional privado”, Revista de Derecho comunitario europeo, vol. 1997-1, pp. 413-445; id., “El Tratado de Amsterdam y el Derecho internacional privado”, La Ley (Unión Europea), nº 4510, of 30 March 1998, pp. 1-3; S. Leible and A. Staudinger, “El artículo 65 TCE: ¿Carta blanca de la Comunidad Europea para la unificación del Derecho internacional privado y procesal?”, AEDIPr, t. I, 2001, pp. 89-115; SA. Sánchez Lorenzo, “La política legislativa de la Unión Europea en materia de Derecho internacional privado: de la técnica del carro ante los bueyes a la estrategia del avestruz”, Nuevas fronteras del Derecho de la Unión Europea (Liber amicorum José Luis Iglesias Buhigues), Valencia, Tirant lo Blanch, 2012, pp. 133-145.

    58 S.C. Symeonides, “Codification and Flexibility in Private International Law”, Reports of the XVIIth Congress of the International Academy of Comparative Law/Rapports Généraux du XVIIIeme Congrès de l'Académie Internationale de Droit Comparé (K.B. Brown and D.V. Snyder, eds.), Springer Science+Business Media, 2011, pp. 167-190.

    59 E. Vassilakakis, Orientations méthodologiques dans les codifications récentes du droit international privé en Europe, Paris, LGDJ, 1987.

    60 L.A. Lunz, “L'objet et les principes fondamentaux du droit international privé en URSS et dans les autres pays socialistes européens”, Journ dr. int., t. 100, 1973, pp. 97-115; F. Korkisch, “Neues internationales privatrecht in ostmitteleuropa”, Rabels Z., 1968, pp. 601-650; T. Ballarino, “Osservazioni sulla codificazione del diritto internazionale privato nell'Europa centro-orientale”, Études en l'honneur de Roberto Ago, vol. IV, Milan, Giuffrè, 1987, pp. 3-24; P. Kalensky, “Le droit international privé comparé des États socialistes dans leur coopération économique”, Recueil des Cours, t. 208 (1988-I), pp. 169-281.

    61 Rev. crit. dr. int. pr., 1992, pp. 394-400. Vid. S.C. Symeonides, “Les grands problèmes de droit international privé et la nouvelle codification de Louisiane”, ibid., pp. 223-281; D.P. Fernández Arroyo, “Nuevas normas de Derecho internacional privado en el Código civil de Louisiana”, REDI, vol. XLV, 1993, pp. 615-620.

    62 The Civil Code of Québec in force since 1st January 1994 includes in its Book Ten a complete system of private international law which comprises, in addition to the matters of applicable law, those regarding international jurisdiction, recognition and enforcement of judgments. In the Code, which encompasses commercial matters, the law of the domicile is the closest connecting factor. Rev. crit. dr. int. pr., 1992, pp. 574-584 and the note of E. Groffier.

    63 The basic rule in this context is the Law of 15 June 1978 on private international law (IPRG, published in the Austrian Official Journal, BGBI. nº 304/1978). It comprises 54 articles relating to applicable law but does not address procedural matters. Vid. E. Palmer. “The Austrian Codification on Conflicts of Law”, Am. J. Comp. L., vol. 28, 1080, pp. 197 et seq.

    64 It includes 48 articles, grouped in three chapters relating to: general issues, applicable law and law of international civil procedure.

    65 Art. 15, which covers the exception clause, provides a concrete example of this. In accordance with the 1st paragraph: “As an exception, any law referred to by this Act is not applicable if, considering all the circumstances, it is apparent that the case has only a very loose connection with such law and that the case has a much closer connection with another law”. Vid. A. Bucher, “La clause d'exception dans le contexte de la partie générale de la LDIP”, La loi fédérale de droit international privé: vingt ans après, Actes de la 21e Journée de droit international privé du 20 mars 2009 à Lausanne, Geneva, 2009, pp. 59-74.

    66 Regarding the preparatory work of the Code vid. M. Verwilghen, “Vers un Code belge de droit international privé”, Travaux. Com. fr. dr. int. pr., Paris, 2001, pp. 123 et seq.; J. Erauw, “De codificatie van het Belgisch internationaal privaatrecht met het onderwerp van Wetboek I.P.R.”, Rechtskundig weekblad, vol. 65., 2001-2002, pp. 1557-1566; G. Stuer and C. Tubeuf, “La codification en droit international privé”, Rev. dr. U.L.B., 2003-2, pp. 143 et seq. Regarding the meaning of this important legislative initiative vid., for all, M. Fallon, “La loi belge de droit international privé belge pour un centenaire”, Travaux Com. fr. dr. int. pr. (2004-2006), pp. 98-118; vid., as well, J.Y. Carlier, “Le Code belge de droit international privé”, Rev. crit. dr. int. pr., 2005, pp. 11-45; N. Watte´ and C. Barbe´, “Le nouveau droit international privé belge: étude critique des fondements des règles de conflits de lois”, Journ. dr. int., vol. 133, 2006, pp. 851-927.

    67 V.gr. Art. 19 of the Belgian Code of private international law; L. Barnich, “La clause d'exception dans la proposition de loi portant le Code de droit international privé”, Mélanges John Kirkpatrick, Brussels, Bruylant, 2004, 59-72.

    68 M. Verwilghen, “La place de la nationalité dans le Code de droit international belge”, Hommage a` Francis Delpe´re´e: itinéraires d'un constitutionnaliste, Brussels, Bruylant, 2007, pp. 1687-1701.

    69 H. Fulchiron, “Le mariage entre personnes de même sexe en droit international privé au lendemain de la reconnaissance du ‘mariage pour tous'”, Journ. dr. int., 2013, pp. 1055-1113.

    70 http://pil.mateuszpilich.edh.pl/New_Polish_PIL.pdf. T. Pajor, “Introducción a la nueva Ley polaca de Derecho Internacional Privado, de 4 de febrero de 2011 (seguida del texto de la ley traducido al inglés)”, REDI, vol. LXIV, 2012, pp. 263 et seq.

    71 V.gr., the technique used by the French legislator through reforms of the Civil Code operated by the Law no72-3 on filiation or the Law 75-617 of 11 July 1975 on the divorce reform. Regarding the first law vid. Rev. crit. dr. int. pr., 1972, pp. 154-155; R. Sabatier, “Le projet de loi sur la filiation, mystique ou réalisme?”, Semaine Juridique, 1971, I, p. 2400; J. Foyer, “La réforme du droit de la filiation et le droit international privé”, Travaux Com. fr. dr. int. pr. (1969-71), Paris, Dalloz, 1972, pp. 107-125; H. Batiffol and P. Lagarde, “L'improvisation de nouvelles règles de conflit de lois en matière de filiation”, Journ. dr. int., t. 99, 1972, pp. 765-796; M. Simon-Depitre and J. Foyer, Le nouveau droit international de la filiation, Paris, L. Techniques, 1973; A. Huet, “Les conflits de lois en matière d'établissement de la filiation depuis de la loi du 3 janvier 1972”, Les conflits de lois en matière de filiation, Paris, LGDJ, 1973, pp. 19-63; D. Alexandre, “Les conflits de lois en matière d'effets de la filiation”, ibid., pp. 65-94. Regarding the second law vid. Ph. Francescakis, “Le surprenant article 310 nouveau du Code civil sur le divorce international”, Rev. crit. dr. int. pr., 1975, pp. 553-594; A. Cornec, “Le nouveau divorce international (article 310 du Code civil)”, Gazette du Palais, 1976, 2, pp. 612-614; J. Foyer, “Tournant et retour aux sources en droit international privé (l'article 310 nouveau du Code civil)”, Semaine Juridique, 1976, I, pp. 2762 et seq.; M. Simon-Depitre, “Le nouvel article 310 du Code civil”, Journ. dr. int., t. 103, 1976, pp. 823-830; T.E. Carbonneau, “The New Article 310 of the French Civil Code for International Divorce Actions”, Am. J. Comp. L., vol. 26, 1978, pp. 446-460.

    72 V.gr., the technique used by the Spanish legislator through reforms of the Civil Code. In some cases, it has introduced new rules governing international relations in a context of substantive law reform. Concretely, the reform of the Civil Code carried out by the Law 30/1981 preferred to add, in Title IV of Book I of the Civil Code, the conflict of laws rules in matters of divorce and legal separation in addition to the substantive regulations of this institution. On the contrary, the Law 21/1987 benefited from the course of the reform of the substantive regulation on adoption to modify the conflict of laws rules of the Preliminary Title of the Civil Code on filiation.

    73 L. de Lima Pinheiro, “The Metholology and the General part of the Portuguese Private International Law. Codification: A Possible Source of Inspiration for the European Legislator?”, Yearb. Priv. Int'l L., vol. 14, 2012-2013, pp. 153-172.

    74 ILM, vol. XXIV, 1985, pp. 1002-1014, and the note of A. Garro, ibid., pp. 997-1001; Rev. crit. dr. int. pr., 1986, pp. 192 et seq. and the note of J. Lisbonne; J. Samtleben, “Neues Internationales Privatrecht in Perú”, Rabels Z., 1985, pp. 486-521.

    75 Vid., inter alia, P. Wigny, “Le ‘Restatement' américain du droit international privé”, Rev. crit. dr. int. pr., 1936, pp. 67-85; M. Giuliano, “II diritto intenazionale privato e processuale nel Restatement of the Laws 2d.”, Riv. dir. int. pr. proc, 1974, pp. 226-229; B. Hanotiau, Le droit international privé américain: du premier au second Restatement of the Law, Conflicts of Laws, Paris, LGDJ, 1979; R.J. Weintraub, “The Restatement Third of Conflict of Laws: an Idea whose Time has not Come”, Indiana L. J., vol.75, nº 2, 2000, pp. 679-686.

    76 Vid. G. Velázquez, Directivas fundamentales del Derecho internacional privado puertorriqueño, Rio Piedras, Editorial de la Universidad de Puerto Rico, 1945.

    77 L. Muñoz Morales, Reseña histórica y anotaciones al Código Civil de Puerto Rico, Río Piedras, Junta Editora UPR, 1947; G. Velázquez, Directives Fundamentales del Derecho Internacional Privado, Río Piedras, Junta Editora UPR, 1945); S. Symeonides, “Revising Puerto Rico's Conflicts Law: A Preview”, Colum. J. Trans'l L., vol. 28, 1990, p. 13 et seq.

    78 A. Fernos López-Capero, “Perspectiva actual del Derecho internacional privado puertorriqueño”, Revista Jurídica de la Universidad Interamericana de Puerto Rico, vol. XXI-3, p. 589 et seq.

    79 J.E. Briceño Berrú, “Reflexiones sobre la codificación del DIPr en América latina”, Studi in memoria di M. Giuliano, Padua, Cedam, 1989, pp. 157-192; D.P. Fernández Arroyo, La codificación del DIPr en América latina, Madrid, Eurolex, 1993; T. de Maekelt, “General Rules of Private International Law in the Americas. New Approach”, Recueil des Cours, t. 177 (1982-IV), pp. 193-379; L. Péreznieto Castro, “La tradition territorialiste en droit international privé dans les pays d'Amérique Latine”, Recueil des Cours, t. 190 (1985-I), pp. 271-400; H. Valladão, “Actualisation et spécialisation des normes du droit international privé des États Américains”, German Yearb. Int'l. L., 1978, pp. 335-36.

    80 J.E. Briceño Berrú, “Las convenciones interamericanas sobre DIPr de 1984”, Riv. dir. int. pr. proc., 1987, pp. 429-452; C. Delgado Barreto, “Las relaciones de los sistemas conflictuales en las normas generales de Derecho internacional privado aprobadas por la CIDIP II de Montevideo de 1979”, Estudios de Derecho internacional. Libro homenaje al profesor Santiago Benadava, vol. 2, Santiago de Chile, Librorecnia, 2008, pp. 377-405; D.P. Fernández Arroyo, “La CIDIP VI: ¿Cambio de paradigma en la codificación interamericana de Derecho internacional privado”, Rev. mexicana DIPr, nº 13, 2003, pp. 214-172; W. Goldschmidt, “Normas generales de la CIDIP II: Hacia una teoría general del Derecho internacional interamericano”, Anuario Jurídico Interamericano, 1979, pp. 141-155; T.B. de Maekelt, Conferencia especializada de DIPr (CIDIP I): análisis y significado de las Convenciones aprobadas en Panamá, 1975, Caracas, Univ. Central de Venezuela, 1979; id., Normas generales de DIPr en América, Caracas, Univ. Central de Venezuela, 1984; D. Opertti Badán, “La codificación del DIPr: análisis comparativo e la labor realizada por la Conferencia de DIPr de La Haya y por la CIDIP”, España y la codificación internacional del Derecho internacional privado, Madrid, Eurolex, 1993, pp. 259-283; G. Parra-Aranguren, “La primera conferencia especializada interamericana sobre DIPr, Panama, 1975”, Libro homenaje a la memoria de Joaquín Sánchez Covisa, Caracas, Univ. Central de Venezuela, 1975, pp. 253-277; id., “Recent Developments of Conflict of Laws Conventions in Latin-America”, Recueil des Cours, t. 164 (1979-III), pp. 57-170; id., “La tercera conferencia interamericana sobre DIPr (CIDIP III, La Paz 1984)”, Revista de la Facultad de Derecho (Univ. Católica “Andrés Bello”), no 33 and 34, 1984-1985 (reissue); J. Samtleben, “Die interamerikanische Spezialkonferenz für internationales Privatrecht”, Rabels Z., 1980, pp. 257-320; id., “Los resultados de la labor codificadora de la CIDIP desde la perspectiva europea”, España y la codificación..., op. cit., pp. 293-302; A.M. Villela, “L'unification du droit international privé en Amérique latine”, Rev. crit. dr. int. pr., 1984, pp. 235-262.

    81 O. Pfersmann, “Le droit comparé comme interprétation et comme théorie du droit”, Rev. int. dr. comp., vol. 53, 2001, pp. 280-281.

    82 H. Batiffol, “Codificación y unificación en Derecho internacional privado”, Choix d'articles, Paris, 1976, pp. 125-136.

    83 Cf. R. Sacco, “Codificare: Modo superato de ligeferare?”, Riv. dir. civ., 1983, p. 119.

    84 For instance, the Inter-American Convention on Support Obligations adopted on 15 July 1989 does establish a spatial scope of application, but nothing was specified on that point regarding instruments such as the Montevideo Treaties of 1889. From the publication in that regard of Los Tratados de Montevideo de 1889 y su interpretación judicial, vol. I, part 1, Universidad Nacional de La Plata, Argentina, 1940, an inter-parte application can be inferred, i.e., any legal dispute, act or relation would require to have a connection with at least two contracting States (all the matters treated in the aforementioned book have a connection with Argentina and Uruguay).

    85 Instruments such as the Inter-American Convention on General Rules of Private International Law, adopted in Montevideo in 1979, do not include an express provision on their spatial scope of application either. It can be assumed that they are inter-partes instruments, i.e., they can only be applied in so far as the applicable law is the law of a contracting State. Other conventions which include provisions regarding applicable law, such as the Inter-American Convention on adoption of La Paz of 1984 or the aforementioned Inter-American Convention on Support Obligations, do expressly provide a spatial scope of application.

    86 It was subsequently called Civil, Administrative, Labour and Economic Procedure Act after the part on economic procedure was added, in accordance with the Decree-Law 241/2006.

    87 It was introduced by the Decree-Law 241/2006.

    88 Other relevant rules regarding private international law are scattered in: the Law No. 1289/75, which introduced the Family Code, the Law No. 1313/1976 on foreign nationals, the Law No. 50/1984 on State notary's offices and the Law No. 51/1985 on civil status registry.

    89 On 7 January 1988 two decrees were published in the Official Journal: the first one, which reformed and completed the Civil Code governing the Federal District on Common Matters; and the second one, which reformed and completed the Code of Civil Procedure for the Federal District. Shortly after, on 12 January 1988, a decree reforming and completing the Code of Civil Procedure for the Federal District was also published in the Official Journal. Further on, on 2 January 1989, reforms, additions and derogations of several dispositions of the Commercial Code - some of which relate to conflict of laws and international procedural cooperation - were published in the Official Journal. All the reforms above mentioned focus on private international law matters. In the Explanatory Note of both the Civil Code and the Code of Civil Procedure for the Federal District, it was established that “The law, understood as a promoter of social change, cannot remain static before transformations induced by social dynamics. The growing economic, politic, social and cultural relations, that are formed daily between the people that make up our society and those who belong to other States composing the international scene, have shown the need to find solutions more consistent with our time.” After referring to the CIDIP-I, -II and -III conventions, national legislation was reformed to conform to “the principles established by the [aforementioned] conventions”. Therefore, the main purpose of these reforms was to conform Mexican laws to the above conventions.

    90 L. Pereznieto Castro, Derecho internacional Privado, Parte General, 8th ed., Mexico, Oxford, 2003.

    91 N. González Martín, “La Conferencia Especializada Interamericana de Derecho Internacional Privado y la modernización del Derecho internacional privado latinoamericano ¿un cambio en el iter convencional hacia la Ley Modelo?”, Boletín Mexicano de Derecho comparado, 2008, pp. 511- 544.

    92 Vid., generally, J.C. Fernández Rozas, “¿Por qué la República Dominicana necesita una ley de Derecho internacional privado?”, Gaceta Judicial, la Revista Jurídica de Interés General (Dominican Republic), Año 18, nº 329, 2014, pp. 20-31.

    93 These articles are a literal translation of their counterparts of the French Civil Code of 1804. Art. 14: “A foreigner, even if not residing in the Dominican Republic, may be cited before Dominican courts for the performance of obligations contracted by him in the Dominican Republic with a Dominican person; he may be called before the courts of the Dominican Republic for obligations contracted by him in a foreign country towards Dominican persons.” Art. 15: “Dominican persons may be called before a court of the Dominican Republic for obligations contracted by them in a foreign country, even with a foreigner”.

    94 Law No. 834 repealing and amending some dispositions relating to Civil Procedure and integrating the most recent and advanced reforms of the French Code of Civil Procedure of 15 June 1978 (Official Journal No. 9478).

    95 J.M. Castillo Roldán, “Competencia judicial internacional en la República Dominicana”, http:// juanmicastilloroldan.blogspot.com.es/2013/06/competencia-judicial-internacional-en.html, 13 June 2013.

    96 Art. 24: “When the judge considers that the matter falls within the jurisdiction of a criminal, administrative, arbitral or foreign court, he will only refer the parties thereto to the competent court. In all the other cases, the judge who considers that he lacks jurisdiction must designate the court he deems competent. Such designation will be imposed to the parties and the referring judge”.

    97 This principle was endorsed by the judgments of the Supreme Court of Justice (SCJ) on 13 December 2006 and 30 January 2008. Vid. E. Alarcón, Comentarios a la Ley de arbitraje comercial de la República Dominicana, Santo Domingo, Librería Jurídica Internacional, 2012; J.C. Fernández Rozas and N. Concepción. Sistema de arbitraje comercial en la República Dominicana, Santo Domingo, Editorial Funglode, 2013.

    98 G. Ireland and J. de Galíndez, Divorce in the Americas, Buffalo NY: Dennis, 1947.

    99 The Dominican Code of Civil Procedure, amended by the commission named by the executive power and which complies with the decree of the National Congress of 4 July 1882, kept the order of the articles of the French Code in effect (sic) in the Republic since 1845.

    100 In September 2010 took place the legislative proposal preliminary draft of the Code of Civil Procedure which, in accordance with the adopted plan, comprises twelve volumes. The first one deals with the fundamental principles of the process, the application of national and supranational rules, judicial cooperation and recognition and execution of foreign and international judgments. For our purposes, special attention should be paid to Chapter II of Title II on the application of international rules of procedure, which begins by asserting the primacy of international law (art. 29), and to Title IV (arts. 48 to 63), which pays particular attention to recognition and execution of foreign and international judgments.

    101 G. Parra Aranguren, “La Ley venezolana de 1998 sobre Derecho Internacional Privado”, REDI, vol. LI 1999, 1, pp. 277-287.

    102 H. Barrios, “Del Domicilio”, Revista de la Facultad de Ciencias Jurídicas y Políticas, vol. 46, nº 117, Universidad Central de Venezuela, Caracas, 2000, pp. 41 et seq.

    103 Presidential opposition was essentially directed towards the principles of the draft law on international commercial arbitration. For these reasons among others, the president partially vetoed the draft law of private international law and in view of this situation the Commission of Government, Justice and Constitutional Affairs, in compliance with the art. 205 of the Organic Rule of Domestic Regime, issued its report on 6 February 2013, considering that the objections made by the president of the Republic were founded. For this reason, the Commission concluded that Arts. 150, 151-158 and 159 of the draft law on private international law should be amended, recommending the plenary chamber of the National Assembly to adopt such objections in all their integrity. They did so, leading to a new draft law in 2013.

    104 http://www.asamblea.gob.pa/apps/seg_legis/PDF_SEG/ PDF_SEG _2010/ PDF_SEG_2013/ PROYECTO/2013_P_578.pdf.

    105 The parliamentary offices of this last draft law were not exempt from problems either. It is obvious that being related to the proceeding of the draft law on private international law, containing provisions which clash with the spirit of said draft, created tensions between supporters and opponents of both projects. The fact that the president of the Republic was directly involved in the abandonment the draft of private international law is proof that this legislative procedure was not peaceful. But this last text was not the only one targeted. The one that was retained in a first time generated a strong opposition as well, to the extent that it almost never saw the light. It was adopted at the last minute, after enduring many complaints asking the president to veto for having apparently induced serious irregularities as well as for never having been approved in first debate. F. Gómez Arbeláez, “Nueva ley de arbitraje, irregularidad legislativa”, La Prensa, 19 December 2013.

    106 J.C. Araúz Ramos, “La porfiada reforma del arbitraje en Panamá”, Arbitraje. Revista de Arbitraje Comercial y de Inversiones, vol. VII, nº 1, 2014, pp. 143-149.

    107 It was published in the Official Journal of 8 May 2014. According to Art. 184, the Code “shall come into force six months after its promulgation”. http://www.gacetaoficial.gob.pa/pdfTemp/27530/46493.pdf.

    108 It is a draft model Code of private international law dated 3 December 2005. AEDIPr, t. VI, 2006, pp. 1242-1276; J.A. Silva, “Una codificación iusprivatista para México: los trabajos para conformarla”, AEDIPr, t. VI, 2006, pp. 1221-1240.

    109 http://www.diputados.gob.mx/LeyesBiblio/index.htm.

    110 The committee was chaired by Lino Saldaña, a former associate judge of the Supreme Court of Puerto Rico. Arthur T. von Mehren, a professor at the Harvard Law School, was a consultant for the committee and Symeon C. Symeonides, professor and dean at the Willamette University College of Law, served as rapporteur for this contribution.

    111 Based on that document and using an initial draft of the translation into Spanish of the proposal of the Academy made by Julio Romanach of the Center of Civil Law Studies de Louisiana State University, the Joint Commission prepared this draft of private international law book. The wording of the articles and their commentaries suffered significant modifications, making a standardisation of language and of the structure of the articles necessary to adjust to the guidelines used in the rest of the revised draft of the Civil Code. Furthermore, in some cases, some substantive modifications were required to adjust the said proposal to the new content of the rest of the books of the project. This obviously meant modifying the commentaries whose purpose is to justify the rules. Even after consulting all these documents, this book is far from being consistent with some of them.

    112 The sentence in italics is similar to the sentence “most significant relation” of the Segundo Restatement (sections 5, 188, 222, 28 & 291). However, it is also similar to the following expressions used in other codifications: “closest ties” (Art. 9 of the Inter-American Convention on the Law Applicable to Contractual Obligations), “most directly linked” (Art. 30 of the Venezuelan Act of Private International Law of 1999), “closest ties” (Arts. 200 and 206 of the Argentinian Projects of Private International Law of 1998), “closest relationship” or “closest connection” (Swiss Private International Law Act of 1987), “close connection” (Civil Code of Québec of 1994), “closest connection” (Art. 28 of the German Private International Law Act and Rome Convention) and “stronger connection” (Austrian Private International Law Act of 1978). At the same time, the expression “most significant connection” used in the article is sufficiently different from all the above-mentioned formulations. For instance, the expression “most significant” prompts us to make a more qualitative analysis and have less of a territorial and physical connotation than the expressions “strongest” and “closest”, which are used in the European formulations. To some extent, these differences and similarities may reflect the European and American influence on this matter. However, it is more important to note that the terms “most significant connection” and their objective is supported in the Puerto Rican jurisprudence of private international law, particularly with the expression “dominant contacts” used in Maryland Casualty, Viuda de Fornaris y Green Giant. But even so, the expression used in the article is sufficiently different from it, making it less prone to an incorrect interpretation which encourages a mechanical or quantitative counting of contacts or a mere geographic localisation of the dispute.

    113 The drafting commission was composed of: Edynson Alarcón, Julio Cesar Valentín, Marco Herrera, Marcos Peña, Cruz, Peña, Fabiola Medina, Mario Pujols, Leidylin Contreras, M.A Víctor Villanueva, M.A. Nathanael Concepción, M.A. Marjorie Félix, Ana Carolina Blanco Hache, and Prof. José Carlos Fernández Rozas as rapporteur. The Global Foundation for Democracy and Development (GFDD), the Global Institute of Higher Studies in Social Sciences (IGLOBAL) and the Foundation for Institutionality and Justice (FINJUS) delivered the proposal of the draft private international law Act on 19 March 2014 to the president of the Senate of the Republic, Reinaldo Pared Pérez. The chancellor of IGLOBAL, Marcos Villamán, was in charge of submitting the said draft. http://www.funglode.org/wp-content/uploads/2013/11/proyecto-ley-derecho-internacional-privado.pdf.

    114 S.T. Castaños, “Algunas reflexiones sobre la necesidad e importancia de regular el derecho internacional privado de la República Dominicana mediante una ley especial?”, Gaceta Judicial, la Revista Jurídica de Interés General (Dominican Republic), Año 18, nº 329, 2014; R. Campillo Celado, “Necesidad de la adopción de una ley nacional sobre Derecho internacional privado en la República Dominicana”, ibid.

    115 The Argentinian draft code of private international law was established by a Group of Argentinian international privatists grouped under the “Commission of Studies and Establishment of the Draft Private International Law Act”, appointed by the Executive (Res. M.J y DH 191/02 and Res. M.J.S y D.H. 134/02), and composed of Drs. Miguel Angel Ciuro Caldani, Eduardo L Fermé, Berta Kaller de Orchansky, Rafael Manovil, Maria Blanca Noodt Taquela, Beatriz Pallarés, Alicia Maria Perugini Zanetti, Horacio Daniel Biombo, Julio Cesar Rivera, Amaia Uriondo de Martinolli and Inés M. Weinberg de Roca. Later on, it was presented to the national Congress along with the “Draft of Unification of the Civil Code and the Code of Commerce” in view of their legislative treatment. http://www1.hcdn.gov.ar/ dependencias/ dsecretaria/ Periodo2004/ PDF2004/ TP2004/02abril 2004/ tp037/2016-D-04.pdf-

    116 Reference should be made in particular to the Hague Convention on jurisdiction, applicable law, recognition, enforcement and cooperation in respect of parental responsibility and measures for the protection of children, the Inter-American Convention of La Paz of 1984 on Conflict of Law Concerning the Adoption of Minors or the Inter-American Convention of Montevideo of 1989 on Support Obligations.

    117 Vid. S.L. Feldstein de Cárdenas, “La reforma del Derecho Internacional privado en la República Argentina, ¿la cenicienta se convertirá en princesa?”, www.elDial.com; id., “La Ley de Derecho Internacional privado en la República Argentina: mito o realidad?”, Revista Jurídica del Centro de Estudiantes de la Facultad de Derecho de Buenos Aires, n° 4, 1999, “El Proyecto argentino en materia de Derecho Internacional privado: Reforma a la italiana?”, www.diritoitalia.com, December 2000; N. Magallón Elósegui, “La reforma del Derecho internacional privado en la República Argentina”, Revista Estudios Internacionales, 14, 2007.

    118 This text comprising 63 articles incorporates the Uruguayan Draft Private International Law Act of 2008. The idea began to take shape in 1994, with the initiative brought forth by Prof. Dr. Didier Opertti Badán at the private international law institute of the law school of the Universidad de la República. A group made up of several members of the institute was appointed and was assigned the task of developing a first preliminary draft of the national Private International Law Act, beginning with general theory. Once it was done, they reached a dead end, especially when Prof. Opertti, as the Minister of Foreign Affairs, formally appointed a Working Group in charge of developing the preliminary draft of general private international law act, replacing the Appendix of the Civil Code created by Resolution 652/998 of the executive power, on 17/8/1998. The members of the Group, chaired by Dr. Opertti, were Drs Ronald Herbert, Eduardo Tellechea, Marcelo Solari, Berta Feder, Carmen González and Cecilia Fresnedo. Later on, Drs Jorge Tálice, Paul Arrighi and Gonzalo Lorenzo joined them.

    119 J.L. Marín Fuentes, Derecho Internacional Privado, Medellin, Editorial Universidad de Medellín, 2013, p. 17.

    120 http://www.udea.edu.co/portal/page/portal/bibliotecaSedesDependencias/unidades Academicas/ FacultadDerechoCienciasPoliticas/BilbiotecaDiseno/Archivos/01_Documentos/ proyecto_ de_ ley_gral_der_intrna_priv2.pdf.

    121 http://asadip.files.wordpress.com/2009/12/ley-dipr-2.pdf.

    122 G. Parra-Aranguren, “Las recientes modificaciones del DIPr en el Continente Americano”, Revista de la Facultad de Derecho (Univ. Andrés Bello), nº 43, 1991, pp. 357-443, esp. pp. 399-406.

    123 J.H.A. van Loon, in The Effect of Treaties in Domestic Law (F.J. Jacobs y S. Roberts, eds.), vol. 7, London, Sweet & Maxwell, 1987, pp. 229 et seq.

    124 From the point of view of the law of treaties vid. I. Sinclair, “The Vienna Convention on the Laws of Treaties: The Consequences of Participation and Non-participation”, Am. J. Int'l L., Proceeding of 78th Annual Meeting, 1984, pp. 271 et seq.

    125 Vid. H.U. Jessurun D'Oliveira, “Codification et unification du droit international privé. Problèmes de coexistence”, Unification et le droit comparé dans la théorie et la pratique. Contributions en l'honneur de Jean Georges Sauveplanne, Deventer, Kluwer Law and Taxation Publishers, 1984, pp. 117 et seq.

    126 The adoption of this provision was warmly welcomed by W. Goldschmidt, “Un logro americano en el campo del DIPr”, El Derecho (Buenos Aires), nº 4.763, 24 July 1979.

    127 K. Siehr, “Codificazioni del diritto internazionale privato e convenzioni internazionali”, Problemi di riforma del diritto internazionale privato italiano, Milan, Giuffrè, 1986, pp. 497-507.

    128 E. Jayme, “Identité culturelle et integration: le droit international privé postmoderne”, Recueil des Cours, t. 251, 1995, pp. 68-69.

    129 It is only fair to point out the particular sensitivity to interaction problems between the Civil Code and the international treaties signed by Uruguay detailed in the work of Q. Alfonsín, Curso de Derecho privado internacional con especial referencia al Derecho uruguayo y a los Tratados de Montevideo de 1889. Teoría del Derecho privado internacional, Montevideo, Facultad de Derecho y Ciencias Sociales, 1955, esp. pp. 227 et seq.

    130 More than fifty international treaties related to private international law lato sensu gave a new face to the existing process of regulation in Mexico. vid. L. Pereznieto Castro, “El art. 133 Constitucional: una relectura”, Jurídica, nº 25, 1994 and L. Ortíz Ahlf, “Comentarios sobre algunos problemas de Derecho internacional público que plantean las Convenciones de DIPr”, Memoria del XIII Seminario Nacional de DIPr, Mexico, UAM, 1992, pp. 176 et seq.

    131 They are the result of a series of “Hispano-American Congresses” which took place from 1826 onwards. They were named “Montevideo Treaties” of 1889, revised in 1939-1940. Vid. M. Argúas, “The Montevideo Treaties of 1889 and 1940 and their Influence on the Unification of Private International Law in South America”, in the centenary book of ILA, The Present State of International Law and Other Essays, Kluwer, 1973, pp. 345-360.

    132 In the first Latin American Legal Congress, which took place in Lisbon in 1889, the polemic between the law of the nationality and of the domicile regarding personal status regulation was the main focus as well. Vid. M. Torres Campos, Elementos de DIPr, 4th ed, Madrid, Librería de F. Fé, 1913, pp. 145-146.

    133 Vid. G. Droz, M. Pellichet and A. Dyer, “La Conférence de La Haye de droit international privé vingt-cinq ans après la création de son bureau permanent”, Recueil des Cours, t. 168 (1980-III), pp. 213-268; R. Graveson, “Problems of the Hague Conference of Private International Law”, Essays in honour of R. Ago, vol. IV, Milan, Giuffrè, 1987, pp. 125 et seq.; M. H. van Hoogstraten, “La codification par traités en droit international privé dans le cadre de la Conférence de La Haye”, Recueil des Cours, t. 122 (1967-III), pp. 337-435; id., “L'état présent de la Conférence de la Haye de droit international privé”, The Present State of International Law (centenary book of I.L.A.), Deventer, 1973, pp. 371 et seq.; J.H.A. Van Loon, “Quelques réflexions sur l'unification progressive du droit international privé dans le cadre de la Conférence de La Haye”, Liber Memorialis François Laurent, Brussels, Story-Scientia, 1989, pp. 1133-1150; A. E. von Overbeck, “La contribution de la Conférence de La Haye au développement du droit international privé”, Recueil des Cours, t. 233 (1992-II), pp. 9-98; R. Viñas Farré, Unificación del DIPr. Conferencia de La Haya de DIPr, Barcelona, Bosch, 1978; W. von Steiger, “Konventionen oder Modellgesetze?”, Ann. suisse dr. int., vol. 17, 1970, pp. 39 et seq.

    134 Vid. G. Vieira da Costa Cerqueira, “La Conférence de La Haye de droit international privé. Une nouvelle voie pour le développement du droit international privé des régionales Organisations d'intégration économique”, Rev. dr. unif. / Unif. Rev. Law, vol. 12, nº 4, 2007, pp. 761-793.

    135 Vid. G. Parra-Aranguren, “The Centenary of the Hague Conférence on Private International Law”, Études de droit international en l'honneur de Pierre Lalive, Basilea, Helbing und Lichtenhahn, 1993, pp. 111-112; D. Opertti Badán, “The Relationships between Latin American and the Hague Conference regarding the Recent Developments of Private International Law,”, A Commitment to Private International Law. Essays in honour of Hans van Loon, Cambridge, Intersentia, 2013, pp. 421-432.

    136 Regarding the admission and acceptance of Venezuela Vid. G. Parra-Aranguren, “La Conferencia de La Haya sobre DIPr”, Facultad de Derecho (Univ. Andrés Bello), nº 37, 1986-87, pp. 204-205. Needless to say, Spain voted in favour of its admission.

    137 Precisely in this matter and depending on the importance of many countries as “States of origin” of minors likely to be adopted, the Hague Conference on Private International Law was exceptionally opened to non-member States.

    138 Generally Cf. J.H.A. van Loon, “The Increasing Significance of International Co-operation for the Unification of Private International Law”, Forty Years On: The Evolution of Postwar Private International Law, Deventer, 1990, p. 102.

    139 Regarding the interplay between clauses in the codification process, Vid. G.A.L. Droz, “Regards sur le droit international privé comparé (Cours général de droit international privé)”, Recueil des Cours, t. 229 (1991-IV), p. 391 as well as J.D. González Campos and A. Borrás, Recopilation de Convenios de la Conference de La Haya de DIPr (1951-1993). Traducción al castellano, Madrid, M. Pons, 1996, pp. 21-24.

    140 Vid. G. Parra-Aranguren, “La Conferencia de La Haya...”, loc cit.,p. 216.

    141 Ibid., pp. 218-220.

    142 Cf. A. Borrás, “Unificación de la traducción al castellano de los Convenciones de La Haya de DIPr”, REDI, vol. XLII, 1990, pp. 703-705. It is worth recalling that during its VIIth Congress, the IHLADI had recommended to establish an inaternational legal vocabulary of the Spanish, Portuguese, American and Philippine Community (Anuario IHLADI, vol. 4, 1973, p. 692-693).

    143 Vid. J. R. Vanossi, “El Comité Jurídico InterAmericano (reseña de su historia y de su obra)”, Revista El Derecho (Buenos Aires), vol. 118, pp. 771-783.

    144 It should be kept in mind that such Conferences were established by Chapter XVIII of the OAS Charter. They are intergovernmental meetings whose purpose is to deal with special technical matters or to develop specific aspects of inter-American cooperation. Those meetings shall be held either when the General Assembly or the Meeting of Consultation of Ministers of Foreign Affairs so decides, on its own initiative or on the request of one of Councils or Specialised Organisations.

    145 Vid. R. Abarca Landero, “Convenciones interamericanas en materia procesal. Panamá, 1975”, Cooperación interamericana en los procedimientos civiles y mercantiles, Mexico, U.N.A.M., 1982, pp. 613-678; T. B. de Maekelt, Conferencia especializada de Derecho internacional privado (CIDIP I), análisis y significado de las convenciones aprobadas en Panamá, 1975, Caracas, Universidad Central de Venezuela, 1979; G. Parra Aranguren, “La Primera Conferencia especializada interamericana sobre Derecho internacional privado (Panama, 1975)”, Libro-homenaje a la memoria de Joaquín Sánchez- Covisa, Caracas, Ed. Sucre, 1975, pp. 253-277.

    146 Vid. D. Opertti Badán, “L'œuvre de la CIDIP dans le contexte du droit international privé actuel”, Liber amicorum Georges A.L. Droz, La Haya, Nijhoff, 1996, pp. 269-286.

    147 Vid. D. Opertti Badan, “Unification of Laws in the Western Hemisphere: The Contribution of the Organization of American States”, Rev. dr. unif., 1981, pp. 60-67.

    148 Vid. R. Eyzaguirre Echeverría, “Los problemas del Derecho comercial en el DIPr interamericano”, XII Curso de Derecho Internacional del Comité Jurídico Interamericano, 1990, pp. 241-259.

    149 Cf. J.C. Fernández Rozas, “La cooperación judicial en los Convenios de La Haya de DIPr”, REDI, vol. XLV, 1993, pp. 83-84.

    150 The Code of Private International Law was adopted by Decree 1575 of the Legislative Assembly and published on 31 August 1929. Upon signature of the Convention, the Guatemalan Delegation announced “its absolute acceptance and without reservations of any kind” of the Bustamante Code.

    151 General application problems of the Bustamante Code in Venezuela and, in particular, its primacy over national law and the scope of the reservations entered by the country are detailed in J. Samtleben, “La aplicación of el Código Bustamante in Venezuela”, Libro homenaje a la memoria de Joaquín Sánchez Covisa, Caracas, Univ. Central de Venezuela, 1975, pp. 329-333.

    152 The Code was ratified by Costa Rica on 13 December 1928 by Decree No.50 of the “Constitutional Congress” and approved by the Executive Power on 4 February 1930.

    153 The Convention was signed by the National Congress with the following reservation: “Please approve the Code of Private International Law, signed on 20 February 1928 during the VIth International American Conference of Havana, with the reservation that, in Chilean law and with relation to conflicts that may appear between Chilean and any foreign legislation, the provisions of the present or future legislation of Chile prevail over said Code in case of disagreement”. It was incorporated in the legal order as Law of the Republic on 10 April 1934.

    154 The position of Mexico on this instrument is peculiar, as it was voted and approved without any reservation but never ratified. Vid. the comparison between the Mexican system and the Bustamante Code in order to observe their possible compatibility with a possible process of harmonisation of private international law in Latin America made by E. Helguera, “El DIPr mexicano y el Código Bustamante”, Comunicaciones mexicanas al VI Congreso International de Derecho Comparado (Hamburg, 1962), Mexico, UNAM, 1962, pp. 29-47.

    155 J. Samtleben, Derecho International Privado in América latina. Teoría y Práctica del Código Bustamante, vol. I .Parte General, Buenos Aires, Depalma, 1983, pp. 178-189.

    156 T. de Maekelt, “El futuro del nuevo Derecho International Privado venezolano del próximo Siglo”, Revista Mexicana de DIPr, special issue, 2000, p. 65.

    157 Spain was on the verge of integrating one of them under the Second Republic: Vid. I. Beato Sala: “Sobre la accesión o adhesión de España al Código americano de DIPr, denominado 'Código Bustamante'”, Revista General de Legislación y Jurisprudencia, t. 167, 1935, pp. 603-616; F. de Castro, ¿Debe adherirse España al Código Bustamante?”, Revista de Derecho Privado, vol. XXII, 1935, pp. 1-6; id., “De nuevo sobre la pretendida adhesión de España al Código Bustamante”, Revista General de Legislation y Jurisprudence, vol. XII, 1935, pp. 306-307; M. de Lasala Llanas, “Posibilidad de la accesión de España al Código americano de DIPr ('Código Bustamante')”, Revista General de Legislación y Jurisprudencia, vol. XXI, 1934, pp. 221-228; id., “¿Puede adherirse España al Código Bustamante?”, Revista General de Legislación y Jurisprudencia, vol. XXII, 1935, pp. 217-221. G. Parra Aranguren: “El Código Bustamante: su vigencia in América y su posible ratificación por España”, Libro homenaje al Doctor L. Loreto, Caracas, 1975, pp. 201-282; J. Quero Molares, “La adhesión de España al Código americano de DIPr”, Revista General de Legislación y Jurisprudencia, t. 165, 1934, pp. 695-721.)

    158 M. Mateucci, “Les méthodes de l'unification du droit”, Annuaire de l'Unidroit, 1956-II, pp. 40 et seq.; M. Ancel, “Utilité et méthodes du droit comparé. Éléments d'introduction générale à l'étude comparative des droits”, Rev. int. dr. comp., vol. 23, n°4, pp. 933-935.

    159 Cf. A.M. Garro, “Armonización y unificación del Derecho internacional privado in América latina: esfuerzos, tendencias y realidades”, España y la codificación internacional del Derecho internacional privado, Madrid, Eurolex, 1993, pp. 347-350.

    160 R. de Nova, “Current Developments of Private International Law”, Am. J. Int'l.L., vol. 13, 1964, pp. 542 et seq.

    161 G.A.L. Droz, “La Conférence de La Haye de droit international privé et les méthodes d'unification du droit: Traités internationales ou lois modèles?”, Rev. int. dr. comp., 1961, pp. 507-521.

    162 What usually follows from this idea is the old statement of M. Mateucci, according to which unification of laws is the end of all international source. Cf. “Introduction à l'étude systématique du droit uniforme”, Recueil des Cours, t. 91, 1957, pp. 388-389.

    163 Vid. M.V. Cuartero Rubio, voz “Derecho uniforme”, Enciclopedia Jurídica Básica, vol. II, Madrid, Civitas, 1995, pp. 2380-2381.

    164 J.C. Fernández Rozas, “Los procesos de unificación internacional del Derecho privado: técnicas jurídicas y valoración de resultados”, La unificación jurídica en Europa, Seminario organizado por el Consejo General del Notariado en la UIMP (J.M. García Collantes, ed.), Madrid, Civitas, 1999, pp. 17-44.

    165 P. Chaveau, “Des conventions portant Loi Uniforme”, Journ. dr. int., t. 83, 1956, pp. 570-594.

    166 P. Lalive, “Tendances et méthodes en droit international privé (Cours général)”, Recueil des Cours, t. 155, 1977-II, pp. 47-49.

    167 C.M. Schmitthoff, “International Law and Private International Law”, Select Essays on International Trade Law, Dordrecht, 1988, pp. 533 et seq.

    168 H.U. Jessurun d'Oliveira, “Codification et unification...”, loc. cit., pp. 117-130.

    169 K.H. Nadelmann, “Conflicts between Regional and International Work on Unification of Rules of Choice of Law”, Harvard Int'l L.J., vol. 15, 1974, 213-217.

    170 H. Bauer, “Les traités et les règles de droit international privé matériel”, Rev. crit. dr. int. pr., 1966, p. 570.

    171 Vid. J.C. Fernández Rozas, “La cooperación judicial en los Convenciones de La Haya de Derecho internacional privado”, REDI, vol. XLV, 1993, pp. 81-100; id., “La cooperación jurídica internacional, civil y mercantil, en el espacio hispano-luso-americano-filipino”, Anuario del Instituto Hispano-Luso-Americano, vol. 15, 2001, pp. 13-73.

    172 J.D. González Campos, “Efforts concertés d'unification et coexistence des règles de droit international privé dans le système étatique”, E pluribus unum. Liber amicorum G.A. Droz, the Hague, Martinus Nijhoff Publishers, 1996, pp. 109-110.

    173 Cf. J.C. Fernández Rozas, “Los procesos de unificación internacional del Derecho privado...”, loc. cit., pp. 43-44.

    174 Vid., regarding the Australian system, P. Brazil, “Reception of Uniform Law into National Law: an Exercice in Good Faith and Progressive Development of the Law”, Rev. dr. unif., vol. III, 1998, pp. 318-318.

    175 Cf. B. Oppetit, “Le droit international privé, droit savant”, Recueil des Cours, t. 234, 1992-III, vol. 234, pp., p. 422.

    176 This is particularly true when it comes to determining the scope of application of the provisions of the convention. B. Knapp, “Unification international des règles et désignation du droit applicable”, Internationalisation du droit. Mélanges el l'honneur de Yvon Loussouarn, Paris, Dalloz, 1994, pp. 219-232.

    177 A.L. Diamond, “Conventions and their Revision”, Unification.Liber amicorum Juan Georges Sauveplanne, op. cit., 1984, pp. 45-60.

    178 S. Bariatti, L'interpretazione delle Convenzioni internazionali di diritto uniforme, Padova, Cedam, 1986, pp. 44 et seq.

    179 S. Sánchez Lorenzo, “La aplicación de los Convenciones de La Haya de Derecho internacional privado a los conflictos de leyes internos”, REDI, vol. XLV, 1993, pp. 131 et seq.

    180 F. Ferrari, “The Relationship between International Uniform Contract Law Conventions”, Rev. dr. unif., vol. V, 2000, pp. 69-84.

    181 S. Álvarez González, “Cláusulas de compatibilidad en los Convenios de la Conferencia de La Haya”, REDI, vol. XLV, 1993, pp. 41 et seq.

    182 Vid. F. Majoros, Les conventions internationales en matière de droit privé. Abrégé théorique et traité pratique, t. I, Paris, Pedone, 1976, pp. 282 et seq.

    183 In the Spanish legal theory Vid. S. Álvarez González, “Cláusulas de compatibilidad...”, loc. cit., pp. 39-62.

    184 According to the section “Relationship with other conventions”, Art. 21 of the Rome Convention of 1980 on applicable law to contractual obligations provides that “this Convention shall not prejudice the application of international conventions to which a Contracting State is, or becomes, a party”. The art. of the Hague Convention on the law applicable to products liability has a similar approach.

    185 E. Krings, “L'opportunité de juridictions supranationales pour l'interprétation des lois uniformes”, Rev. dr. unif., vol. III, 1998, pp. 525-534.

    186 L. Marquis, “L'interprétation du droit commercial international uniforme: un modèle personnifié par Marc-Antoine”, Rev. int. dr. comp., vol. 54, 2002, pp. 97-125.

    187 F. Ferrari, “I rapporti tra le convenzioni di diritto materiale uniforme in materia contrattuale e the necessità di un'interpretazione interconvenzionale”, Riv. dir. int. pr. proc., 2000, pp. 669-688.

    188 K.H. Nadelmann and W.L.M. Reese, “The American Proposal at the Hague Conference on Private International Law to Use the Method of Uniform Laws”, Am. J. Comp. L., 1958, pp. 239-247; K. Nadelmann, “Méthodes d'unification du droit international privé. La législation uniforme et les conventions internationales”, Rev. crit. dr. int. pr., 1958, pp. 37-51; A. Marín López, “La Conferencia de La Haya de Derecho internacional privado y el método de las leyes modelo”, RDEA, nº 24, 1969, pp. 33-48.

    189 P. Malaurie, “Loi uniforme et conflits de lois”, Travaux Com. fr. dr. int. pr. (1964-1966), Paris, pp. 83-109.

    190 H. Batiffol, “Les tendances doctrinales actuelles in droit international privé”, Recueil des Cours, t. 72 (1948-1), pp. 7-8 and 34-35.

    191 J.C. Fernández Rozas, “Sobre el contenido del Derecho internacional privado”, REDI, vol. XXXVIII, 1986, pp. 69-108.

    192 From a normativist point of view, prevailing until recently, typical commercial matters resulting of “conflicts of law” issues were governed by international business law. This conception, very widespread at the beginning of the twentieth century, resulted from the distinction made between the “civil acts” and the “acts of merchant” in the Commercial Code. Pursuant to the resolution of “conflicts of qualifications”, “conflictual issues” were comprised in the acts of merchant within “international business law”. It was an allusion to the body of rules concerning some legal acts or persons and which constitutes an exception to the rules of civil international law. However, it is important to take into account that, according to this conception, the guiding principle of this legal system rested on two common elements: the matter governed (act of merchant) and the regulatory standards (rule of referral or conflict).

    193 Herrera Mendoza, “La escuela estatutaria en Venezuela y su evolución hacia la territorialidad”, Estudios sobre Derecho Internacional Privado y Temas Conexos, Caracas, El Cojo, 1960, p. 124.

    194 F. Rigaux, “La méthode du conflit de lois dans les codifications et projets de codification de la dernière décennie”, Rev. crit. dr. int. pr., 1985, pp. 1 et seq.; P.M. Patocchi, Règles de rattachement localisatrices et règles de rattachement à caractère substantiel (De quelques aspects récents de la diversification de la méthode conflictuelle en Europe), Geneva, Georg, 1985; E. Vassilakakis, Orientations méthodologiques dans les codifications récentes du droit international privé en Europe, Paris, LGDJ, 1987.

    195 F.K. von Savigny, System des heutigen römischen Rechts, t. VIII, Berlin, Veit und Comp., 1849.

    196 J.-L. Elhoueiss, “L'élément d'extranéité préalable en droit international privé”, Journ. dr. int., 2003, pp. 39 et seq.

    197 Although it was not signed by the Caribbean States, it should be remembered that the Inter-American Convention on Domicile of Natural Persons in Private International defines the special and general domicile of natural persons through cumulative solutions that facilitate the choice of the connecting point of such individuals, notwithstanding the diversity provided by international legislations in this matter. The domicile of a natural person shall be determined by the following factors: 1) the location of the person's habitual residence or the location of its principal place of business; 2) in the absence of the foregoing by the place of mere residence; and 3) in the absence of mere residence, the place where the person is located. Regarding special domiciles, the Convention establishes that the domicile of persons without legal capacity is that of its legal representatives; that the conjugal domicile is the place where the spouses live together; that the domicile of diplomatic agents is that of their last domicile in the territory of the accrediting State; that the domicile of natural persons temporarily residing abroad in the employment or commission of their Government is that of the State which appointed them; and, finally, that when a person has his domicile in two States party to the Convention, this person shall be considered domiciled in the State in which such person resides and, if he or she resides in both, the place in which the person is located shall be preferred.

    198 E. Vitta, “Il principio di nationalità nel diritto internazionale privato italiano”, Riv. dir. int. pr. proc., 1981, pp. 345-363.

    199 R.D. Kollewijn, “Degenerazione del principio di nazionalità nel diritto internazionale privato moderno”, Dir. int., vol. XIII, 1959, pp. 508-525; Ph. Francescakis, “Les avatars du concept de domicile dans le droit international privé actuel”, Travaux Com. fr. dr. int. pr. (1982-1984), pp. 291 et seq.

    200 R. van Rooij, “The Concept of Domicile (“woonplaats”) in Netherlands Private International Law”, Netherlands Int'l L. Rev., vol.22, 1975, pp. 165-182.

    201 M. Verwilghen, “La place de la nationalité dans le Code de droit international belge”, loc. cit., pp. 1687-1701.

    202 J.V. Long, “Domicil v. Nationality”, RabelsZ, 1953, pp. 247-262; L.I. De Winter, “Nationality or Domicile? The Present State of Affairs”, Recueil des Cours, t. 128, 1969-III, pp. 347-504; Y. Loussouarn, “La dualité des principes de nationalité et domicile en droit international privé”, Annuaire IDI, vol. 62-II, 1987, pp. 127-178.

    203 T. B. de Maekelt, Ley venezolana de derecho internacional privado: tres an~os de su vigencia, Discurso y trabajo de incorporacio´n a la Academia de Ciencias Poli´ticas y Sociales de la Doctora Tatiana B. de Maekelt, discurso de contestacio´n de la Acade´mica Doctora Hildegard Rondo´n de Sanso´, acto celebrado el 18 de junio de 2002, Caracas, Venezuela, p. 55.

    204 Vid. infra, commentary on art. 5.

    205 A. Sánchez de Bustamante y Sirvén, “La nationalité et le domicile. Étude de droit international privé”, Rev. crit. dr. int. pr., 1927, pp. 375 et seq.

    206 P. Rogerson, “Habitual Residence: The New Domicile?”, Int' Comp.L.Q., vol. 49, nº 1, 2000, pp. 86-107.

    207 Y. Lequette, “Le droit international privé et les droits fondamentaux”, Libertés et droits fondamentaux (R. Cabrillac, M.A. Frison-Roche and T. Revet, dirs.), 10th ed., Paris, Dalloz, 2004, pp. 97 et seq.

    208 S. Sánchez Lorenzo, “Posmodernismo y Derecho internacional privado”, REDI, 1994, pp. 557-585; id., “Postmodernismo e integración en el Derecho internacional privado de fin de siglo”, Cursos de Derecho Internacional y Relaciones Internacionales de Vitoria-Gasteiz (1996), Madrid, Tecnos, 1997, pp. 149-173.

    209 J.-Y. Carlier, Autonomie de la volonté et statut personnel, Brussels, Bruylant, 1992; S. Álvarez González, “Breves notas sobre la autonomía de la voluntad en Derecho internacional privado”, Soberanía del Estado y Derecho Internacional. Homenaje al Profesor Carrillo Salcedo, vol. I, Seville, 2005, pp. 137 et seq.

    210 A.E. von Overbeck, “L'irrésistible extension de l'autonomie en droit international privé”, Nouveaux itinéraires en droit. Hommage à François Rigaux, Brussels, 1993, pp. 619 et seq.

    211 P. Gannagé, “La pénétration de l'autonomie de la volonté dans le droit international privé de la famille”, Rev. crit. dr. int. pr., 1992, pp. 425-454; J. Basedow and B. Diehl-leistner, “Das Staatangehörigkeitsprinzip im Einwanderungsland”, Nation und Staat im Internationalen Privatrecht (E. Jayme y H.-P. Mansel, eds.), C.F. Müller, 1990, pp. 13-43; C. Kohler, “L'autonomie de la volonté en droit international privé: un principe universel. Entre libéralisme et étatisme”, Recueil des Cours, t. 359, 2013, pp. 285-478.

    212 Both Venezuela in Latin America and Italy in Europe have opted for this solution. The Dominican draft law as well is inclined towards such separation. In Panama, an arbitration law and a code of private international law introducing a detailed regulation of international commercial arbitration came into force in 2013 and 2014 respectively, which will certainly lead to legislative coordination issues. Vid. J.C. Araúz, “La porfiada reforma del arbitraje en Panamá”, Arbitraje. Revista de Arbitraje Comercial y de Inversiones, vol. VII, nº 1, 2014, pp. 127-143.

    213 T. B. de Maekelt, Ley venezolana de derecho internacional privado: tres an~os de su vigencia, op. cit., p. 48.

    214 The scope of application of this convention explicitly establishes the primacy of international law over private international law rules from internal source. The convention is based on the principle of ex officio application of foreign law, except in the case when the law of a State party has institutions or procedures which are essential to its sound application and that are not covered by the legislation of another State party. The Convention also acknowledges that interpretation shall comply with the legal system of which the applicable law is part and not with the interpretation of the judge hearing the case. Another exception to the scope of application is the rule establishing that in case of evasion of the law, the States party have the right to refuse to apply the law of another State party. The convention provides that the judicial remedies will be determined in accordance with the law of the forum (lex fori) and establishes mutual recognition of legal situations under the convention. Lastly, the convention requires seeking the fairest situation in case one legal relation is subject to different laws.

    215 K. Siehr, “General Problems of Private International Law in Modern Codification: De lege lata and de lege ferenda”, Yearb. Priv. Int'l L., vol. 7, 2005, pp. 17-61.


    Draft OHADAC model law relating to private international law.pdf