DRAFT OHADAC MODEL LAW RELATING TO PRIVATE INTERNATIONAL LAW

Article 80

Application in time

1. The present Law shall apply to all proceedings instituted after the date of its entry into force, without prejudice to the rights acquired.

However, the legal facts that occurred or acts that were carried out prior to the date of entry into force of the present Law, but which continue to produce effects, shall be governed by the prior law for the period prior to this date and by the new law for the period afterwards.

2. The Caribbean judges or authorities that hear actions filed prior to the entry into force of the present Law shall continue to have jurisdiction even if this jurisdiction is not established in the present Law.

The actions rejected by the Caribbean judges or authorities due to a lack of jurisdiction prior to the entry into force of the present law may be filed again if the jurisdiction is established by this latter law, provided that the claim is likely to be invoked.

3. The requests for recognition and enforcement of foreign decisions that are pending prior to the entry into force of the present Law shall be governed by this latter law concerning the conditions for recognition and enforcement.

452. The application in time of the private international law rules requires a special emphasis. If the legal rules and, in particular, the rules specific to this legal system, are pronounced by the legislator for governing a future conduct, projecting certain values and interests, these rules must have a supplementary regulatory instrument which addresses the past facts or the situations of facta pendentia564.

The national private international law systems are characterised by the inexistence or insufficiency of these instruments (rules of transitional law) or by the projection onto the same of disputable values that, often, weaken the original purpose of the legal review that has been operated. The traditional transitional rules, comfortably located in the Civil Codes, may not provide a coherent response to these questions which do not have an exclusively substantive, but a procedural nature. It is well known that the traditional formulation of a rule on the non-retroactivity of the law, directed exclusively at the interpreter of the law, is based on declarative texts of personal rights. Undoubtedly, this regulation is formulated as a reaction to the injustices induced by laws and by judicial decisions with retroactive effects, as a corollary of the principle of legality and in favour of the citizen's right to legal certainty. What is more, the regulation claims to be subordinated to civil liberty and constitutes a postulate of intrinsic legal certainty for the exercise of trade. It is an approach intimately connected to the codifying phenomenon and responds to its basic objectives: stability and legal certainty. In other words, the non-retroactivity is a rigid, but comfortable, formula, which is representative of an era where the accent was placed on legal certainty; a formula that represents a factor of order and security whose very existence is a guarantee of the social order565. The driving force in this period gravitates around the idea that in a well-organised society all persons must carry out their legal activity in full awareness of their consequences. Hence, the law must not have retroactive effects, since this situation may generate uncertainty divorced from the reality of the matter.

At the current time, unjust situations which could arise in the regulation in its pure state566 have been highlighted, as well as the failure of an aprioristic and general criterion with a vocation to resolve all the cases of intertemporal conflict that might be presented. To recognise the immediate application of the new law would always give rise to the problem of harmonising this application to relationships existing under of the prior law. It is, then, impossible to resolve the question of the retroactivity or non-retroactivity of the law from axiomatic criteria and, in any case, the analogous application of the transitional provisions of the Civil Codes to specific solutions does not appear to be an adequate solution; above all in an era of profound legislative changes. The general regulation of non-retroactivity has, therefore, a subsidiary nature that can only be used when the new law has not established anything concerning its retroactive nature.

453. For the reasons set out, from the point of view of the applicable law, which Title III of the present Law deals with, the non-retroactivity is tempered by two exceptions. Firstly, the respect for the rights acquired that are recognised in the Caribbean, with the appropriate limits in article 71. Secondly, when the controversial legal facts or acts that arose prior to the date of entry into force of the present Law, but continue to produce legal effects. In this case, the more equitable solution points to the application of the prior law for the period prior to this date and for the new law for the period afterwards567.

This solution is accepted by the majority of the national private international law systems, which are decidedly in favour of the solution using internal general rules on non-retroactivity of the laws, since there is no reason at all for deviating from this criterion; although there are more nuanced positions568, including from the perspective of a specific system569. However, when a legislator decides to reform the rules of private international law, it must be highlighted to what extent this initiative would be diminished if it did not incorporate transitional rules that extend the new values to the situations constituted beforehand based on the specialisation of the matters regulated. Undoubtedly, the traditional regulation continues to be valid concerning contractual obligations. But other institutions require more specific solutions, above all in the scope of family law, which extends the legal conquests of a democratic society to prior situations (equality of the spouses and the children before the law, global market efficiency, etc.).

454. The intertemporal questions related to the application of the rules contained in title III of the present Law are produced when proceedings are initiated, based on certain fora of jurisdiction and a normative exchange occurs which affects these fora taking away from them the jurisdiction to the court that began to hear the case. Different channels may be used. On the one hand, a pure and simple transposition of the particular solutions of the succession of conflict rules may be carried out, based on a similarity between the points of connection and the fora of jurisdiction and the regulations of paragraph 1 of the rule under discussion. On the other hand, specifying the decisive time (a critical date) from which it is admitted that, if the jurisdiction of the courts exists, this jurisdiction must be extended to the time until the proceedings end, regardless of the legislation modification; this date considers the possibility that actions dismissed by the judges or authorities of the forum for lack of jurisdiction beforehand may be filed again if the jurisdiction is established by this latter law, provided that the claim is likely to be invoked570.

Reasons of procedural economy, together with the appreciation of the distinct nature of the rules of judicial and legislative competence, advise us to maintain this second position through the so-called principle of the perpetuatio iurisdictionis. In private international law, in the absence of a legal text, it has been generally admitted that the question must be resolved imperatively in accordance to the criterion expressed, through an extensive application of the imperative solutions at the level of the domestic jurisdiction, this result being justified in the irrevocable nature of the national jurisdiction.

455. In relation to the validity of foreign decisions included in Title IV, the impact of the time factor is especially intense571. This must be the solution of continuity that may exist between the time in which the foreign decision is produced and that in which the request for its fulfilment is made, mediating between both the entry into force of the present law. Hence, it is appropriate to consider that the requests for recognition and enforcement of foreign decisions that are pending prior to the entry into force of the present Law are governed by this latter law as regards the conditions of recognition and enforcement.


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