DRAFT OHADAC MODEL LAW RELATING TO PRIVATE INTERNATIONAL LAW

Article 63

Determination of the foreign law

1. Caribbean courts and authorities shall apply ex officio the conflict rules of the present Title or those inserted in the international treaties to which the Caribbean is party.

2. The courts and authorities shall apply the law designated by the conflict rules referred to in the preceding paragraph. For this purpose, the judge may utilise:

  1. the instruments indicated by international conventions;
  2. the opinions of experts of the country whose law is sought to be applied;
  3. the opinions of specialised institutions of comparative law;
  4. any other document showing the content, the validity and the application to the specific case of this law.

3. If, including with the cooperation of the parties, the judge cannot manage to establish the foreign law designated, the applicable law shall be determined through other relationship criteria possibly provided for the same regulatory hypothesis. Failing that, Caribbean law shall be applied.

368. The conflict rules contained in the Section I, Chapter I of the Title III of the Model Law and in the international treaties to which the Caribbean is party are considered obligatory and imperative, applicable ex officio by the interpreter450.

All of this material uses as a benchmark a basic premise: the conflict rule is obligatory for the judge, since it forms part of the substantive law of the forum, who, in turn, has to apply the foreign substantive rule it relates to, since the mandate of that provision is imperative for him. To do otherwise would be to attribute a dual nature to the conflict rules: an imperative nature when they designate the law of the forum and merely an optional nature (fakultatives kollissionsrecht) in the cases that refer to a foreign law451. In such situation, if the judge of the forum does not apply ex officio the conflict rule of its system, he would leave the determination of the law applicable to the simple will of the parties or their incompetence or bad faith, which would be equivalent to an excessive interpretation of the function of the will of the parties in private international law, above all in matters regulated imperatively452. In addition, the voluntary configuration of the conflict rules, contrary to the basic principle of fairness, will lead us to the absurd situation that identical cases would be resolved in a different manner in a same State, including by a same court, depending on whether the parties had or had not urged, in good or bad faith, the application of applicable foreign law.

The wording of paragraph 1 of the present article, by determining the ex officio application of the conflict rules of the forum, has the undoubted technical advantage of not leaving the application of the conflict rule of the legal system of the forum at the mercy of the parties, or one of the parties, wishing or not wishing to invoke the foreign law at their convenience. The ius cogens nature of the conflict rules is established and, consequently, if the judge, when examining the facts assumed by the rule, is aware of the existence of an element of foreignness is obliged to apply it even through it designates a foreign substantive law.

The option of the Model Law is in accordance with comparative law453, with the Bustamante Code, whose article 408 obliges judges to apply “ex officio”, where applicable, the laws of other countries, and in accordance with the provisions in the Inter-American Convention on General Rules of Private International Law of 1979 (article 2).

369. Two procedural matters indirectly compromise, however, the imperativeness of the conflict rule454 provided in paragraph 1 of this provision:

  1. It may occur the parties do not make clear, or even hide, the element of foreignness that justifies the application of the conflict rule. In such an event, the principle of congruence of the judgement together with the principle of party disposition or free disposition would prevent the judge from exercising the authority to investigate and establish these elements of event. However, if the judge considers ex officio that foreign elements exist which may interfere in the clarity and precision of the causes of action submitted, he must give notice of this at the start of proceedings.
  2. If a dispositive procedural regime of foreign law is maintained, the imperative nature of the conflict rule may be may be affected, since if the foreign law is not submitted or proved by the parties. In its absence, the Caribbean law must be applied (paragraph 3). A similar solution may imply de facto that the imperative nature of the conflict rule is such only when it relates to the law of the forum. Thus, if the conflict rule points to a foreign law, the procedural rules must permit the distinct possibility of choice between the foreign law and the law of the forum455.

On the merits of the cause of action for a dispositive interpretation of the conflict rules, a general commitment to the lex fori456 has been inferred, as has been explained by French court rulings in the Bisbal case. Under this, the conflict rule acquires a different nature and scope whether the connecting factor leads to the application of the law of the forum or of a foreign law. The conflict rule is obligatory if it submits the solution of the specific case to the law of the forum, while it conserves a merely dispositive nature if it chooses the foreign law. The “legeforismo” of this solution finds a difficult rational explanation. If the legislator provides for the application of a foreign law to a specific factual case there is no doubt that it does so by considering it to be more adequate; to think that that the most just solution coincides with the application of the law of the forum is justified only in the if it turns out to be less expensive, easier to understand for the judge and possibly favourable to the interest of the litigants; a similar position absolutely omits the interests of third parties, of international commerce, and the State's own interests in maintaining the conception of the justice and the international harmony of solutions.

370. The second paragraph of the provision relates to the so-called “consequence of the conflict rule” and may be summarised in a choice: application by the judge or the authority of the law of the forum or of a foreign law. Although, in principle, both options appear set out on an equal footing, the process of the practical application of the conflict rule leads to a maximisation of the possibilities of application of the law of the forum. Even so, the fact that the localisation devolves upon the law of the forum does not mean that the treatment of the private international situation is going to be exactly the same as though it were a domestic situation. As provided by article 64, the interpreter must apply the lex fori in accordance with the particular circumstances introduced by the international element.

The application of the foreign law in the forum assumes the final phase of the method of attribution and implies that the realisation of the draft regulation contained in the conflict rule has not been distorted. However, such application forces us to face a fundamental contradiction between the system of the forum and the foreign system, since both are legal systems with a different procedural treatment. The iura novit curia principle does not operate, in principle, for the foreign law. However, the foreign law also does not have the procedural consideration of a simple fact, at least in all scenarios. The facts, once proved, continue to be facts. However, the duly established foreign law is elevated to the level of authentic law, which is going to be applied by the judge for resolving the dispute. In summary, the foreign law has a particular procedural consideration, as it is a tertium genus between the law and the facts. This nature must be guaranteed in the proceedings, through which its procedural treatment has to have particular characteristics, at times being likened to the procedural condition of the facts and, on other occasions, to the national legal rules. Paragraph 2 of the present article confirms this procedurally hybrid nature of the foreign law, since it relates to the necessity of proof of the foreign law, which is a clear symptom that it is not a mere fact, but an authentic source of law, although “also” they must be proved.

Undoubtedly, the singularity of the localisation process is due to the possibility that it opens to applying a foreign law. This possibility is common to the generality of the legal systems, but it should be noted that:

  1. Although the majority of the conflict rules of Section I, of Chapter I of Title III of the Model Law use the term “law”, the reference is not confined to the “law” in the formal sense, but to the legal system or legislation in the general sense. The conflict rule relates to the foreign law, including all the sources of the same (Constitution, law, regulations, customs, etc.), this regulatory block having to be interpreted, as provided by article 64, as will be done by the judges of the State of this legal system.
  2. With reference to article 65 of the Model Law (vid. infra), there is no special limitation to the application of the rules of a foreign system, according to their “public” or “private” nature. The referral operated by the conflict rule relates to the foreign law that has to govern the litigious private situation, regardless of its character and possible nature. In practice, the application of the foreign substantive rules of public law has genuine importance in this area of patrimonial rights of international contracts, submitting to certain state interventionism. At this point, the problem is focused on the application of the imperative provisions or rules of economic public policy of the foreign legal system, a problem which will be analysed in the framework of the regime of contractual obligations.
  3. The application of the foreign law stricto sensu must be differentiated from other cases which involve “taking it into account” as mere information, as a mere determining or conditioning fact of the application of the private international law rules of the forum457.

371. The right of the parties to claim foreign law, that is inserted into the present provision and which is confirmed in article 64.1, does not prevent the judge from actively participating in the investigation and application of the foreign law. However, it is convenient to analyse whether the judge's own knowledge concerning the foreign law may replace the burden of proof of the same by the parties and, including, its invocation458. It is possible that, in the face of the indifference of the parties, the judge interposes his own private knowledge concerning the foreign law, and for good reason, in some cases, the legal culture of the judge without any doubt permits him to acknowledge the content of the foreign law on certain points459.

It is not the intention of the provision that the judge can replace the proof of the foreign law through his own understanding. The foreign law must be proved and this proof falls, in principle, to the parties. The judge may take the initiative for gathering sufficient means of proof for confirming the content of the foreign law, regardless of whether or not he knows it, but cannot replace the necessary proof of the foreign law, which must be entered even to a minimal degree in the records, through his subjective knowledge of the foreign law. The factual consideration of the foreign law up to the time of its proof advises the existence in the procedure of minimal prima facie evidence as a constitutional guarantee, while it avoids a decision of the judge which may be arbitrary. Thus, among other alternatives460, the solution adopted in the Model Law is moving in the direction that the judicial function is carried out through collaboration between the judge and the parties. The interested parties must submit the foreign legislation that they consider to be applicable to the case, but if the judge acknowledges the content of the foreign law he must apply it.

372. Regarding the content of the proof of the foreign law, the present article requires that “the validity and the application of that law to the specific case”. The degree of intensity of the proof will be the responsibility of the courts of justice in particular if the mere isolated citation of specific provisions is sufficient, or if a wider scope of documentary evidence is necessary. The principle of submission by the parties must lead to their logical consequences, not only strict means of proof, but also absolute certainty concerning the content of the foreign law.

If the parties do not invoke or demonstrate a complete passivity in the proof of the foreign law the most adequate option is that the judge must not underestimate the cause of action, but take the initiative in obtaining this documentary evidence. If the parties have the right to invoke and furnish proof of the foreign law, and in all cases should have the possibility to debate concerning this proof and its own application, this does not disregard the judge's obligation to apply ex officio the conflict rule and guarantee that the dispute is resolved in accordance with the foreign law in question461. In this case, the costs resulting from the proof will be imposed on the indifferent claimant in the corresponding order to pay costs, providing a sanction proportionate to their lack of initiative.

373. Paragraph i), 2 of the present article permits the judge to have recourse to the international judicial assistance and in this sense he is obliged to refer to arts. 408 to 413 of the Bustamante Code of 1928 in the framework of its reduced scope of application and to the Inter-American Convention on Proof of and Information on Foreign Law, done in Montevideo on 8 May 1979, and whose States members, in addition to Spain, are Argentina, Colombia, Ecuador, Guatemala, Mexico, Paraguay, Peru, Uruguay and Venezuela. It is an international text produced in the CIDIP-II, which establishes a system of international cooperation between the States members for obtaining elements of proof and information concerning the law of each one of them. The said elements of proof will comprise “the text, validity, meaning and legal scope of their law” (article 2) and will be incorporated in some “suitable means” (article 3) such as: a) documentary proof, consisting of certified copies of legal texts together with an indication of their validity, or judicial precedents; b) expert testimony, consisting of opinions of attorney or experts on the matter; and c) the reports of the State of destination on the text, validity, meaning and scope of its law. The requests must contain a precise statement of the elements of proof being requested and will consign each one of the points that refer to the consultation, together with an indication of its meaning and scope, and a statement of the relevant facts for proper understanding thereof. The language of the request will be that of the requested State (article 5). This may be directed directly by the jurisdictional authorities or through the central authority of the requesting State to the corresponding central authority of the State requested, without any need of legalisation. The Central Authority of each State party shall receive the requests made by the authorities of its State and forward them to the Central Authority of the requested State (article 7).

374. In the absence of international cooperation, the means admitted by the legislation of the forum may be employed in furnishing proof of the foreign law. These include documentary proof and, in particular, expert evidence.

  1. Documentary proof turns out to be the most operative, and the proof that provides greater guarantees. This proof is not admissible through private or general documents, legislative collections, doctrinal works, etc., but through public documents or acted on by a public official and may be introduced to the proceedings through certificates issued: a) by a state authority authorised to provide that information which tends to be registered to the Ministry of Justice; b) by diplomats or consuls of the State of the forum authorised in the State whose law must be applied; c) by diplomats or consuls of the country in question, authorised in the State of the forum. These certificates will be rapid and easy to obtain, but have the inconvenience that they will never be able to determine the scope and content of the foreign rule, but only its literal text and, possibly, its validity. Nonetheless, this inconvenience may remedied by requesting information from the foreign country in question or by using a mechanism of information certified by the mentioned state authority for such function. This proof may be sufficient by itself in many cases but when the content of the foreign rule does not require a special interpretation, it is easy for the existence of the regulations provided with documentary proof to be more than sufficient.
  2. The provision studied considers the possibility of determining the existence and validity of the foreign legislation through “the opinions of experts of the country whose law is sought to be applied”. However, there should be no doubt that expert evidence must be the object of greater suspicion than documentary proof, due to the possible “impartiality” of some experts whose assistance is sought, but that the interested party generally remunerates. Therefore, every effort should be made to control the capacity and independence of the expert, and must also be extended to the free appointment of the expert by the judge, taking into account the guarantees of capacity and independence that he offers. Some other decisions demonstrate a greater flexibility however.
  3. Finally, documentary proof is admitted through “the opinions of specialised of comparative law institutions”.

375. The tactical treatment for procedural purposes of the foreign law raises another important problem: if a party submits a foreign law as a fact and the other expressly admits the existence of this rule, without offering a different interpretation of it, does the Court have to take its existence for granted, by departing from the so-called constriction of the “admitted facts”? A positive response is not satisfactory. The judge may not construct his judgement from a purported foreign rule, merely because its existence is not contested by the party opposing the party that submits it. For that matter, in an extreme case, is the judge going not to apply a provision that he, through his private knowledge, knows in effect exists, only because the litigant had to prove and has not done so? The response to this conundrum depends on whether the ex officio judicis investigation is permitted or whether a more conservative position is followed in this area. If a party proves sufficiently the content, existence and validity of the foreign law, the other party, if it accepts it, is relieved of the proof; but, ultimately, it is required that the proof is furnished sufficiently by one of the parties, which is a contradiction. On the other hand, the acceptance of the doctrine of the established facts indeed permits that the parties violate the principles of regulation provided by the legislator in a conflict rule. The optimal solution is that the judge, facing the agreement of the parties on the content of the foreign law, asserts his own knowledge or the instructions that the legal system offers him for investigating ex officio the foreign law. It puts us in contact with the general matter of the judge's participation in the investigation of the foreign law, a real possibility in the Model Law.

376. Assuming the maxim of the ex officio inapplicability of the foreign law, it is necessary to investigate if any mechanism exists in which the judge is permitted to replace the error of submission of the foreign law or of the proof of its content. On this point, the proceedings for providing additional proof intended for the knowledge of the foreign laws are an power of the judge, and never an obligation; but, in addition, it appears that these measures, given their nature and location in the process, although highly advisable, are only justified if the parties have invoked the foreign law, but have not provided sufficient proof of it. Consequently, the submission by the parties of the foreign law it would always be necessary, and the judge's activity would be reduced to supplementing or even replacing the necessary proof of that submission by the parties. Since the measures for providing additional proof may not become, given their nature, facts that have not been submitted by the parties, it is necessary to stress the restrictive nature that leads to this interpretation. Once the judge determines the applicability of a foreign law for governing the case, through the ex officio application of its conflict rules, he should be authorised to implement the mechanisms of proof of the same, regardless of whether or not the parties have submitted this.

377. In accordance with the principle of the imperative nature of the conflict rule, it appears at first view that the cause of action should be dismissed when the parties have not submitted or provided sufficient proof of the foreign law. Using this principle strictly, the party that does not submit or has not managed to provide proof of the foreign law will see his claim dismissed without any possibility of revisiting his claim based on the submission and correct proof the foreign law. A similar solution very possibly will be contrary to the principle of effective legal protection, which would oblige to interpret the system allowing to correct this result.

A dismissal of the claim based exclusively on the lack of submission and proof of the foreign law does not offer a response regarding the merits of the claim, but a disproportionate and arbitrary sanction for the procedural conduct of the parties, in view of its preventive consequences for obtaining a ruling as regards the merits. In all those cases in which the referral to the foreign law derives from a conflict rule arising from a convention, in which case the ex officio application is necessary for complying with the international obligation assumed; this is the actual wording of the convention-based rules that tend to require the application of the law designated with the sole exception of public policy.

378. The body of the application may find itself in a situation of being unable, substantively, to apply the foreign law. This impossibility, considered in paragraph three of the present article, is absolute if it is impossible to establish the connecting factor of a conflict rule, when the foreign legislation contains a loophole in the regulation of the case or indeed its content could not be determined or is overtly contrary to public policy, in the sense set out under the previous heading, concerning in this case a legal or moral impossibility, more than a substantive one. The impossibility may be partial if only rules related to partial aspects of the litigious situation are unknown or exempted, in which case the substantive impossibility of applying the foreign law is raised only in respect of those cases. The lack of proof of the foreign law does not in the same way imply a substantive impossibility, as it may depend on the will of the parties or the interpreter, although their consequences may coincide, as we will see, with those that produce the substantive impossibility of applying the foreign law.

In these cases the question is to determine what law must be applied in the event that the conflict rule of the forum designates a foreign law and it is impossible for this to be known by the judge, or, if you will, if we are dealing with a case of “substantive impossibility” in the application of the foreign law. When faced with this problem, there are hypothetically two solutions available to the judge. Firstly, to dismiss the claim, purely and simply, which is the easiest solution, but which entails a procedural situation of no solution to the dispute and may give rise to evidently unjust consequences, not only putting in doubt the legal nature of the foreign law, but because an evident denial of justice occurs. Secondly, he is “obliged” to apply a different regulation. The question then consists of determining this. There are three responses to this question.

  1. To find that this regulation must be determined by the judge himself based on the “general principles of law common to the systems in question” in the dispute462. There should be no doubt that this construction implies a potentiation of the comparative method, by insisting on the common aspects of the legal systems in question. However, despite the attractiveness of the approach, it is worth asking about its operability and, in that sense, what is easy to apply in arbitrations it is not the same for the national judge, who is limited by his own legal system.
  2. The application of the closest legal system. That is to say, in the case of substantive impossibility in the application of the foreign law claimed for the conflict rule, recourse would be had to a legal system of the same legal family, also based on comparative law. It is an interesting solution from the theoretical perspective, but is unreal from a practical point of view. It is certain that legal systems exist with a high degree of mimetism and reception with respect to others, nevertheless, to apply the proposed solution in these cases leads to a purely expedient result and to its possible arbitrariness and through the contradictory results to those that could arise.
  3. The application of the lex fori. This conception has been maintained from distinct positions. One talks, first and foremost, of a “presumption of identity” through which this thesis is directly related with the argument that we have just set out; but it is only operative in the Anglo-Saxon countries based on common law. There has also been a reference to the “general jurisdiction of the law of the forum”463. Finally, the approach in support of the presumption of the residual jurisdiction of the law of the forum is most frequent; the conflict rule of the forum brings us back to the foreign substantive law, but, if this is lacking, it is the law of the forum itself that fills in the loophole with its own substantive rules464. This is the solution that is decisively adopted in paragraph 3, in fine, of the present article. Not surprisingly, the superiority of the law of the forum derives from elemental practical reasons such as its certainty and, above all, the facilities for interpretation incumbent on the judge465.

Once this final solution is accepted, the judge must, however, have the certainty that the impossibility of information concerning the foreign law is not the result of mere negligence by the party or of a fraudulent attitude466 and thus, it may utilise the appropriate steps. In other words, the application of the lex fori rule will only be feasible if all of the information media of the foreign law have been exhausted and, in addition a substantial relationship with the forum exists. And, in any case, as last resort, there are occasions in which it may be feasible to resort to a “third law” through the utilisation of subsidiary connecting factors deduced from the private international law system itself that we are applying467.


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