DRAFT OHADAC MODEL LAW RELATING TO PRIVATE INTERNATIONAL LAW

Article 1

Subject matter of the law

1. This law sets the rules governing private international relations in civil and commercial matters. It governs, in particular:

  1. the scope and limits of Caribbean jurisdiction;
  2. the determination of the applicable law;
  3. the recognition and enforcement of foreign decisions.

2. Private relationships are termed international when they relate to more than one legal order via their constituent elements, corresponding to the person of their subjects, to their subject matter or to their creation.

86. Article 1 is very classically an opening provision describing the subject matter of the model law and thus indicating its ambition217. While not immoderate, that ambition is relatively far-reaching. While certain contemporary legislations choose to deal only with conflict of laws or with issues of applicable law - this is the case of the Polish law dated 4 February 2011 or of the Dutch law dated 19 May 2011 introducing a book X into the Civil Code of the Netherlands - and to leave jurisdictional conflicts, i.e. issues of international jurisdiction and of international circulation of judgments and public acts, to be covered by a separate statute or by a Code of civil procedure, the model law proposes to encompass jointly all three groups of problems encountered by the international development of a private law relationship. The design is thus to offer a codification of the objective part of private international law218. Inspired as it is by the aim of harmonising the legal treatment of cross-border relations in order to facilitate them inside the Caribbean zone, the OHADAC programme does not plan to set up a common system of substantive law in civil and commercial matters, possibly organised into several codes (civil code, commercial code, code of civil procedure) among which the provisions relating to conflict of laws and conflicts of jurisdiction could be distributed, as they are in various States. At the present time, that would be a rash undertaking. More realistically and wisely, the model law assumes the persistence, for some time yet, of a certain degree of diversity safeguarding the identity of each legal order. Consequently, it does not aim at affecting or modifying the domestic law of the States concerned. However, since a model law constitutes no more than an offer of legislation, it may, once it has been received by a State and to the extent that the latter deems it necessary, be divided up and distributed between the various legislative monuments in force in that State. Such dismemberment cannot, however, be recommended; indeed, by thus subjecting the rules of private international law to domestic law, one would incur the risk of encouraging divergent interpretations and of jeopardizing the consistency of the whole219.

87. The make-up of the model law, if not its structure, corresponds to that of the Italian Act n°218 dated 31 May 1995 reforming the Italian system of private international law, or to that of the Venezuelan private international law Act dated 6 August 1998, or again to that of the Belgian Code of private international Law (Act dated 16 July 2004). We may also refer here to the precedent constituted by the Swiss private international law Act (French acronym LDIP) dated 18 December 1987; however, while the spectrum of subject matter is comparable, the overall economy of the text is different and more akin to the first draft of the private international law Act of the Dominican Republic issued in 2013.

The model law, indeed, includes three central parts, preceded by a Part I containing some common provisions and followed by a Part V devoted to the final provisions.

88. Article 1 specifies the focus of all of those rules, i.e. private relationships of a civil and commercial nature having an international character.

Its paragraph 2 provides some clarifications regarding the internationality liable to characterise private law relationships. A relationship is international when one or more of its constituent elements relates to more than one legal order. The formula thus opts for a legal conception of internationality, which in such a general text is justified by the inadequacy of the economic criterion; based as it is on a cross-border movement of economic values, that criterion, on the one hand, is legitimate only as regards the application of a limited group of the non-State rules specific to some aspects of international trade placed under the heading of jus mercatorum and, on the other hand, it is aimed only at a limited fraction of all the relationships apprehended by the model law, to which a much wider substantive field has been assigned. Moreover, the legal criterion is the one chosen by most modern private international law statutes when they see fit to define internationality (see the draft laws of Mexico, Panama and Uruguay and the Venezuelan, Polish and Rumanian legislation).

The elements determining internationality relate either to the person of the subjects or to the subject matter, or again to the source of the relationship; we may thus be dealing with the nationality of one of the parties or with the latter's domicile or habitual residence, or with the location of the personal or real asset or with the place of performance of the obligation, or finally with the place where the contract was made or where the prejudicial event occurred, or again with the authority intervening or having intervened in the creation of the relationship. Inasmuch as they attest that the private relationship also develops in a legal order distinct from the one within which it is being interpreted, but just as well equipped to resolve legal issues, those elements, usually referred to as elements of foreign status, indicate the risk of a “conflict”, that is, a hesitation arising from the competition between legal systems concerning either the determination of the courts of competent jurisdiction or that of the applicable law, or possibly the authority of the decision taken abroad.

89. The private relationships having an international character to which the model law is devoted pertain, as specified by Article 1, to civil and commercial matters. This specification, which links up with the concept of private law, is borrowed directly from the law of the European Union220, understood according to the interpretation by the Court of Justice of the Brussels Convention dated 27 September 1968 (now Brussels I Regulation); its function is to delimit the scope of those instruments and in particular to eliminate public law relationships. Such borrowing for such a purpose may be justified as follows: considering the fluctuating character of the distinction between private and public law in the systems where it exists and plays a major role and its slightly enigmatic nature for those systems which, while not ignoring it, do not grant it a cardinal role, the Court of Justice has undertaken to build up an autonomous interpretation answering the objectives and system of the convention within the framework of the general principles shared by all the national systems; now, the States belonging to the OHADAC area are, no less than the European Union, heirs to various traditions inside the Romano-Germanic and Anglo-American families, and the criterion of matters of public law, founded by the Court on “the intervention of a public authority acting in the exercise of its prerogatives of public power”, appeared able to form an operating foundation, on the basis of which all the States having adopted the model law will have to develop the concept according to the requirements of cooperation to which they will have agreed.


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