PRINTED FOR PRÍVATE CIRCULAnON ONLy

ACADEMY OF INTERNATIONAL LAW

founded with the support of the

CARNEGIE ENDOWMENT FOR INTERNATIONAL PEACE

RECENT DEVELOPMENTS OF CONFLICT

OF LAWS CONVENTIONS IN LATIN AMERICA

by

GONZALO PARRA-ARANGUREN

(Extract from the Recueil des cours, Volume 164)

SIJTHOFF & NOORDHOFF

Alphen aan den Rijn - The Netherlands

RECENT DEVELOPMENTS OF CONFLICT

OF LAWS CONVENTIONS IN LATIN AMERICA

by

GONZAW PARRA-ARANGUREN

TABLE OF CONTENTS

Chapter I. Historical development up to the Bustamante Code .

1. The Congress of Panama (I826)2. Efforts toward codification during the middle ofthe nineteenth century3. The Lima Treaty tl Sj S)4. First Montevideo conventions (I888-1889)5. Preparatory work to the Bustamante Code6. Endorsement of the Bustamante Code7. Its ratification8. Critical comments9. Second Montevideo treaties (I939-1940)

Chapter 11. The Ibero-American community . .

10. Ibero-American congresses at the end of the nineteenth century11. Discussion in Spain on the convenience of acceding to the Bustamante

Code12. Circular letter to convoke the first Ibero-American Congress of

International Law (1951)13. The work of the Hispanic-Lusitanian-American Institute of Interna­

tional Law14. The first conference of ministers of justice of the Hispanic-Lusitanian­

American and Philippine countries (I970)15. Second conference : Brasilia (¡ 972)16. Convention on information in juridical matters regarding legal rules in

force and their application (I972)17. Convention on judicial assistance (I 972)18. Thirdconference: Buenos Aires (I97S)19. Convention on a uniform system for enforcement of civil judgments

and arbitral awards (l 975)20. Convention on simplification of the legalisation of foreign public

documents (I 975)21. Fourth conference : Caracas (I978)22. Convention on issuance of excerpts of civil registry certificates (I 978)

Chapter III. The impact of economic integration . . . . . . . . .

23. Efforts toward economic integration24. Objectives ofthe Latín American Free Trade Associatton (I960)25. Attempts to reform the Latin American Free Trade Association26. Caribbean integration and the Treaty that establishes the Caribbean

Comrnunity (CARICOM)(I973)27. The Declaración de Bogotá (1966)28. The Cartagena Agreement (I969)29. Its structural organization30. Harmonization and unification of legal rules ofthe States Members31. Foreign investments : Decision 2432. Private internationallaw rules in Decision 2433. Decision 40 on double taxation34. External credit contracts35. Regulating ofcontracts related to the use of patents and trade marks

59

65

75

90

60 G. Parra-Aranguren

36. Decisions 84 and 85: specific rules on Industrial property37. Decision 46 : objectives pursued and method used38. Private international law rules on multinational corporations39. Decision 56 on transportation by road40. Labour matters41. Decision 113: Andean lnstrument 01 Social Security42. Decision 116: Andean lnstrument 01 Laboral Migration

Chapter IV. The first Inter-American specialized conference on privateinternationallaw (CIDIP-I). . . . . . . . . . . . . . . . . . .. 107

43. Codification of prívate international law within the organization ofAmerican States

44. Reasons to renew efforts toward private internationallaw codification45. First report ofthe Inter-American Juridical Committee O949)46. Second report of the Inter-American Juridical Committee 095 I)47. The "cornparative study" prepared by Dr. José Joaquin Caícedo­

Castilla O953)48. The convocation of the first Inter-American Specialized Conference on

Private International Law (CIDIP-I)49. Installation of the conference and conventions signed in Panama (975)50. Inter-American convention on conflict of laws concerning bilis of

exchange, promissory notes and invoices51. Inter-American convention on conflict oflaws concerning cheques52. Inter-Arnerican convention on international commercial arbitration53. Inter-American convention on letters rogatory54. Inter-American convention on the taking of evidence abroad55. Inter-American convention on the legal régime of powers of attorney

to be used abroad56. Clauses common to all conventions57. Public policy c1ause58. Diplomatic c1auses59. Evaluation of the first Inter-American Specialized Conference on

Private International Law (CIDIP-I)60. Ratifications ofthe Panarna conventions

Chapter V. The second Inter-American Specialized Conference on privateinternationallaw (CIDIP-n) . . . . . . . . . . . . . . . . . .. 128

61. Convocation of the second Inter-American Specialized Conference onPrivate International Law (CIDIP-n)

62. The agenda to be examined63. Installation ofthe conference (Montevideo, 1979)64. The first commission65. Resolution on an additional protocol to the Inter-American convention

on the taking of evidence abroad66. Additional protocol to the Inter-American convention of letters

rogatory67. Inter-American convention on the .extraterritorial efficacy of foreign

judgrnents and awards68. Inter-American convention on execution ofpreventive measures69. Inter-American convention on evidence and information regarding

foreignlaw70. The second commission71. Resolution on international waterborne transportation, with special

reference to bilis of lading72. Inter-American convention on conflict of laws concerning cheques

Conflict 01 Laws Conventions in Latin America 61

73. ínter-American convention on conflict of laws concerning mercantilecorporations

74. Inter-American convention on general rules of private internationallaw

7S. Resolution on personality and capacity in prívate international law76. Inter-American convention on domicile of physical persons in prívate

international law77. Plenary sessions of the conference

62

BIOGRAPHICAL NOTE

Gonzalo Parra-Aranguren was born in Caracas (Venezuela) on 5 December 1928.Graduated summa cum laude at the Law School of the Central University ofVenezuela. Post-Graduate Studies in New York University (USA). Obtained theDoktor Iuris, with Mention cum laude, in the Ludwig-Maximileans-UniversitatMünchen (Gerrnany),

Formerly First Instance Mercantile Judge in Caracas 0958-1971), is nowadayspractising law.

Titular Professor of Private International Law in the Central University ofVenezuela (from 1956) and Titular Professor of Private International Law in theCatholic University Andrés Bello in Caracas (from 1957).

Member of different law commissions : to suggest the rules on "nationality" thatwere the basis for the norms of the Venezuelan Constitution actually in force (961) ;to prepare a "Draft of Norms on Private International Law" 0963-1965); and tomake a revision of the Books on Negotiable Instruments and on Bankrupcy of theVenezuelan Commercial Codeo

Member of the following Institutions : Colegio de Abogados del Distrito Federal(Caracas), and its former Vice-President (967) ; Academia de Ciencias Politicas ySociales (Caracas); Instituto Venezolano de Derecho Procesal (Caracas); InstitutoHispano-Luso-Americano de Derecho Internacional; Asociación Interamericana deProfesores de Derecho Internacional Privado; Asociación Uruguaya de DerechoInternacional; Sociedad Bolivariana de Venezuela; Instituto de Derecho Interna­cional.

Former Member ofthe Publishers Board ofthe Revista del Colegio de Abogados delDistrito Federal; and actually Member of the Board of Publishers of Revista de laFacultad de Derecho de la Universidad Católica Andrés Bello (Caracas) and ActasProcesales del Derecho Vivo (Caracas).

Co-President of the Commission on Private International Law at the fourteenthMeeting of the Inter-American Federation of Lawyers (Venezuela, 1969). Especiallyinvited to participate as Lecturer in Curazao during the Centenary of the Introductionof the Codification and the Establishment of the Supreme Court of Justice (969).Professor at the Sixth Course of International Law in Rio de Janeiro, organised by theInter-American Juridical Committee (979).

Delegate for Venezuela to the following events : Third Conference on the Law ofthe Sea (Caracas, 1974); Third Meeting of the Spanish-Venezuelan MixedCommission (Madrid, 1974) ; First Inter-American Specialized Conference on PrivateInternational Law (Panama, 1975) and Vice-President, in charge ofthe Presidency ofthe Second Commission ; Thirteenth Session of the Hague Conference on PrivateInternational Law (as Observer, 1976-1977); Second Inter-American SpecializedConference on Private International Law (Montevideo, 1979), and President of theSecond Commission.

63

PRINCIPAL PUBLICATIONS

El Concepto de Fundación (1950).Die Regel "Locus Regit Actum" und die Formen der Testamente, Munich, 1955."Los derechos sucesorales del Cónyuge sobreviviente", Revista de la Facultad de

Derecho de la Universidad Central de Venezuela (RFDUCV), Caracas, No. 9,1956."La Doble Nacionalidad", RFDUCV, No. 23, 1962."La Nacionalidad venezolana originaria en la Constitución del 23 de Enero", Boletin

de la Biblioteca Rojas Astudi/lo, Vol. 13, Caracas, 1963."Orígenes sociológico-jurídicos de la Nacionalidad Venezolana", RFDUCV, No. 24,

1963.Antecedentes Históricos del Código de Comercio, Caracas, 1963.Proyecto de Ley de Normas de Derecho Internacional Privado (in collaboration with

Drs. Roberto Goldschmidt and Joaquín Sánchez-Covisa), Caracas, 1963. (A revisededition was published in 1965.)

La Nacionalidad Venezolana Originaria, 2 vols., Caracas, 1964."Origen y Evolución del Sistema Anglo-Americano de Derecho Internacional

Privado", Revista de Derecho y Legislación, Caracas, Vol. 53, Nos. 641-643, 1964."Prueba de la Capacidad Matrimonial del Extranjero en Venezuela", Revista de la

Facultad de Derecho de la Universidad Católica Andrés Bello (RFDUCAB), Caracas,No. 1, 1965.

"La Función de la Reciprocidad en el Sístema Venezolano del Exequátur", RFDUCV,No. 31, 1965.

"Antecedentes de la Codíficación Civil y el Derecho Internacíonal PrivadoVenezolano 0810-1862)", RFDUCAB, No. 2, 1966.

"El régimen de la Nacionalidad Venezolana Derivada y la Constitución del 31 deDiciembre de 1858", Revista del Colegio de Abogados del Distrito Federal, Caracas,No. 132, 1967.

"La Nacionalidad Venezolana de los Inmigrados en el Siglo XIX", REDUCAB,No. 7, 1969.

La Constitución de 1830 y los Venezolanos por Naturalización, Caracas, 1969."La Nacionalidad Venezolana en la Constitución, de 1857", RFDUCAB, No. lO,

1970."La Influencia del Matrimonio sobre la Nacionalidad de la Mujer en el Proyecto de

Código Civil Publicado en 1869", RFDUCAB, No. 11, 1970."Los Preceptos de Nacionalidad Venezolana durante la Guerra Federal", Revista de la

Facultad de Derecho de la Universidad del Zulia, Maracaibo, Venezuela, No. 30,1970.

"Los Preceptos Atributivos de Nacionalidad en la Constitución Federal de 1864",RFDUCAB, No. 12, 1971.

"El Tratamiento Procesal del Derecho Extranjero en los Países de la América delSur", Actas Procesales del Derecho-Vivo (APDV), Caracas, Vol. 1, No. 2, 1971.

"La Ley de Naturalización de 1865 y la Constitución Federal de 1864", RFDUCAB,No. 13, 1972.

"La Citación de los no Presentes en la República", RFDUCAB, No. 15, 1973.Nuevos Antecedentes sobre la Codificación Civil Venezolana (J81O-1862), Caracas,

1974."Los Precedentes Venezolanos del Código Bustamante", RFDUCAB, No. 17, 1974."La Revisión del Código Bustamante", RFDUCAB, No. 18, 1974."El Código Bustamante: Su Vigencia en América y su Posible Ratificación por

España", Libro-Homenaje al Doctor Luis Loreto, Caracas, 1975."Las Obligaciones Extracontractuales en Derecho Internacional Privado", RFDUCAB,

No. 20, 1975.

64 G. Parra-Aranguren

"La Primera Conferencia Especializada Interamericana sobre Derecho InternacionalPrivado", APDV, Vol. XVI, Nos. 46-48, 1975.

"La Primera Conferencia Especializada Interamericana sobre Derecho InternacionalPrivado", APDV, Vol. XVI, Nos. 46-48, 1975.

"El Acuerdo Hispano-Venezolano de 1974 sobre Intercambio de Información en elOtorgamiento de la Nacionalidad", APDV, Vol. XVII, Nos. 53-54, 1975.

"El Acuerdo Boliviano sobre Ejecución de Actos Extranjeros (I 91I) a la Luz de laJurisprudencia Venezolana", RFDUCAB, No. 22, 1976.

"La Condición Juridica de los Venezolanos por Naturalización", RFDUCAB, No. 23,1977.

"La Interdicción y la Inhabilitación en el Derecho Internacional Privado Venezolano",APDV, Vol. XXIII, Nos. 67-68, 1977.

"Los Derechos de la Personalidad y el Cambio Voluntario del Nombre Civil en elDerecho Internacional Privado Venezolano", RFDUCAB, No. 24, 1978.

"Recientes Tendencias en el Derecho Internacional Privado Norteamericano: Cavers,Currie y Ehrenzweig", APDV, Vol. XXVI, Nos. 76-78, 1978.

"Venezuela", Yearbook Commercial Arbitration, Vol. IlI, 1978."La Legislación Venezolana de Emergencia y el Tribunal Nacional de Reparaciones

de Guerra", RFDUCAB, No. 25, 1978."Las Cuestiones de Nacionalidad ante el Tribunal Nacional de Reparaciones de

Guerra", Primeras Jornadas Latinoamericanas de Derecho Internacional, Caracas,1979.

"La Pérdida de la Nacionalidad Venezolana por Naturalización: Aspectos Proce­sales", Estudios sobre la Constitución. Libro-Homenaje a Rafael Caldera, Caracas,Vol. 1, 1979.

"La Segunda Conferencia Especializada Interamericana sobre Derecho InternacionalPrivado (CIDIP-ID", APDV, Vol. XXXII, Nos. 94-86, 1979.

65

CHAPTER 1

HISTORICAL DEVELOPMENT UP TOTHE BUSTAMANTE CODE

l. The pride of having begun the difficult task of codification ofInternationa1 Law belongs to the American Continent, and its mostremote antecedents are linked to the Congress of Panama, convokedby the Liberator Simon Bolivar. In fact, already at its inauguralsession, Don Manuel Lorenzo de Vidaurre made public the necessityfor drawing up a "Code of Public Law that constitutes the admirationof the whole world" 1 : and in a Memorandum of the same date,22 June 1826, which he submitted together with Don Manuel Perez deTudela, the Peruvian Plenipotentiaries proposed the appointment oftwo persons to elaborate "the Project of aCode of International Law ofAmerican People that does not clash with European customs" 2.

The suggestion was taken up in an additional article to the Treaty ofUnion, Alliance and Perpetua1 Confederation, endorsed on 5 July1826, between the Republics of Peru, Colombia 3, Central Americaand the United States of Mexico : it was expressly stipulated that:

"whereas the contracting parties tru1y wish to live in peace withaH the nations of the Universe, avoiding all motives of displeasurethat might originate from the exercise of their 1egitimate rights,either in peace or in war, they have agreed and likewise agree,that after obtaining the ratification of the Treaty, they willproceed to set in common agreement all those matters, policies

. and principles which are to rule their conduct in one and theother case, and for that purpose, they will invite again the neutraland friendly nations in order that, if they be1ieve it convenient,they take an active participation in such a negotiation and attendby means of their P1enipotentiaries to adjust, conclude and signthe Treaty or Treaties that will be prepared for such an importantpurpose 4".

2. The interruption in the work of the Congress of Panama exp1ainsthe subsequent convocations made by the Mexican Government in1831, 1838 and 1840: notwithstanding its failure, the Republic ofPeru sustained the initiative, and because of its perseverance, theAmerican countries continued holding periodic conferences for the

66 G. Parra-Aranguren

joint examination of the problems of the hemisphere and to codify therules of international law.

The meetings held around the middle of the nineteenth century onlydealt, in an incidental manner, with sorne matters of InternationalPrivate Law, particularly important in daily relations between subjectsof diverse countries , and in this respect we must bear in mind:

(a) the Commerce and Navigation Treaty endorsed in Lima, on 30March 1848 by Bolivia, Chile, Ecuador, Nueva Granada and Peru, inits Article 7, attributed extraterritorial efficacy to contracts and docu­ments granted according to the lex loci and, without considering thenationality of the contracting parties, disposed for its enforcement,provided the defendant resided in the country where the executionwas attempted s ;

(b) the Project 01Alliance, signed in Washington on 9 November1856 by the Plenipotentiary Ministers of Costa Rica, Guatemala,Mexico, Nueva Granada, Peru and Venezuela, stipulated reciprocalcitizenship, previous declaration of intention, with the purpose oforganizing a "Confederation of the Hispanic-American States".Likewise, it acknowledged extraterritorial efficacy to "the judicialproceedings and public and authentic documents executed in each oneof the allied Republics, in accordance with its laws", "provided theauthenticity of the signatures was certified by the respective nationalagent" (Article II) ; and once the Congress of Plenipotentiaries met,with the purpose of closing up the relationships among the assistants, adecision should be taken in order to determine "the formalities andrequirements necessary in order that letters rogatory of competentauthorities of any one of the Hispanic-American States should becomplied with by the other Members of the League to whom they areaddressed, either in criminal or in civil matters" (Article 17, No. 5) 6 ;

(e) the Continental Treaty signed in Santiago de Chile on30 November 1856 by diplomatic representatives of Peru, Ecuadorand the Minister of Foreign Affairs of Chile: its Article 5 acknow­ledged extraterritorial efficacy, not only to documents, but also to"judgments passed by its courts and to evidence when rendered inthe manner that its laws have stipulated" 7 ;

(d) the American Congress inaugurated in Lima on 14 November1864 was a favourable occasion for the presentation oftwo projects onthe matter: one by the Plenipotentiary of Ecuador, Don VicentePiedrahita, on 14 January 1865 "with the purpose of defining severalprincipIes on External Public Law, including Private International

Conflict 01 Laws Conventions in Latin America 67

Law" 8 ; and the second by the Venezuelan Delegate, Don AntonioLeocadio Guzmán, dealing only with Private International Law.However, they were not discussed.

3. The foregoing precedents and the pressing needs of daily life ledto a conference to examine problems inherent in Private InternationalLaw. In fact, on 11 December 1875 the Peruvian Governmentconvoked all the countries for the purpose of:

"endeavouring the uniformization of private legislation as soon asthe special circumstances of each country allow it and setting upthe respective Codes, in relation to those points in whichuniformization is not possible, the rules according to whichconflicts that occur in the application of these laws must beresolved".

Since the beginning of its activities, the Congress of Jurists wasthe scene of a confrontation between two opposing trends: thepersonalists, defended by Don Antonio Arenas and the territorialistsby Don Zoilo Flores, Plenipotentiary for Bolivia. Finally, after11 months of hard work, the representatives of Argentina, Bolivia,Costa Rica, Chile, Ecuador, Peru and Venezuela endorsed on 1) No­vember 1878 the Treaty to establish uniform rules on Private Inter­national Law : it consisted of 60 articles set out under eight titles and itwas preceded by an Introductory Exposition written by Don AntonioArenas, President of the Peruvian Supreme Court and of the Congressof Jurists.

The treaty deals with the following subjects: civil status andcapacity of persons ; property located within the country and contractsconcluded abroad; marriages and estates ; international competenceand execution of foreign judgments. In all these important sectors ofdaily life solutions were mainly inspired by the teachings of Mancini,Fiore, Mazzoni, Brocher, Laurent and Pradier-Fodéré, even thoughthe ideas ofsome Americans were admitted : Story, Bello and Texeirade Freitas.

Peru was the only country that ratified the Treaty . this failure ispartially explained by the War of the Pacific (1879), in which Bolivia,Chile and Peru intervened; but the fundamental reason was theacceptance of the principles defended by the Italian-French school,particularly of the law of nationality to rule the status and capacity ofpersons and the intestate succession (Articles 2 and 24) : as EstanislaoZeballos says, this is a solution "which practical results, if it had had

68 G. Parra-Aranguren

them, would have been contrary to the doctrines, to the feelings and tothe national legislation of the American countries" 9.

The Congress of Jurists held in Lima in 1877 not only approved theConvention on Private International Law : a Treaty on Extraditionwas also endorsed on 27 March 1879 ; but the future projections ofthe meetings go far beyond those documents. In fact, it is to beremembered that Don Antonio Arenas, on 20 March 1881 presented amemorandum with a Draft to unify the mercantile legislation 01 theAmerican Republics regarding Private International Law 10: in thewords of the Uruguayan jurist Quintin Alfonsin it constitutes "the firstproject of a Treaty on International Commercial Law that is known inthe world" 11 ; and even though it could not be considered, due to theadjournment of the sessions, the solutions proposed will leave adefinite track in all subsequent efforts undertaken to achievecodification 12.

4. The practical failure of the Treaty of Lima did not frustrate therising hopes towards a legislative unification of the Continent, whichwere present again, a short while later, in the convocation of aContinental Diplomatic Congress approved in Caracas in 1883, on theoccasion of the centenary of the birth of the Liberator SimonBolivar 13. Nevertheless, these efforts only became a lasting trend sorneyears later, due to the personal work of the Uruguayan jurist GonzaloRamirez.

In effect, not only did he make the first diplomatic contacts, he alsoprepared a "Draft Code of Private International Law" 14, and finally,endorsed the agreement between Argentina and Uruguay on14 February 1888 : both countries agreed to invite,

"separately, but simultaneously the Governments of'Chile, Brazil,Peru, Bolivia, Ecuador, Colombia, Venezuela and Paraguay forthe celebration of a South American International JuridicalCongress, that will have as a purpose the celebration of a Treatywhich includes the subjects comprised in Private InternationalLaw 15".

The South American International Juridical Congress began itsactivities in Montevideo on 25 August 1888. The work was arduousand difficult because of the necessity of co-ordinating opposed criteriaon several important points ; but it was a success and when its sessionsended on 18 February 1889, the following agreements had beenendorsed: the Treaty on International Procedure Law and the Treatyon Artistic and Llterary Property (Ll January 1889); the Treaty on

Conflict 01 Laws Conventions in Latin America 69

Copyrights and the Treaty on Trademarks and Industrial Patents(16 January 1889); the Treaty on International Penal Law (16 Janu­ary 1889) ; the Treaty on International Penal Law (23 January 1889) ;the Convention on Exercise 01Liberal Professions (4 February 1889) ;the Treaty on International Civil Law and the Treaty on InternationalCommercial Law (12 February 1889); and an Additional Protocol tothe Treaties on Private International Law (13 February 1889).

The primary objective of the convocation was to eradicate thediversity of laws by means of uniform rules, and on1y in a subsidiarymanner was it pretended to establish common rules on PrivateInternational Law. Nevertheless, this methodological aspect was notclearly attended to : both, the projects and conventions approved, gaveobvious preponderance to the task of unifying the Private InternationalLaw of the contracting States. Aiming at this purpose the FirstCongress of Montevideo adopted the strange decision of including therules on international jurisdiction in the Treaty on International CivilLaw ; and in the specific scope of the latter the applicable law wasselected on an eminently political basis, trying to protect the interestsof the immigration countries.

The ideas of Joseph Story, Federico Carlos Savigny, AugustoTexeira de Freitas and Andres Bello, inspired the accepted solutions,notwithstanding the trend, evidenced through the importance recog­nized as tú the domicile, the place of location and to the place of trial,as factors in determining the law applicable to controversies connectedwith different legislations.

On the other hand, the Plenipotentiaries assembled in Montevideowere inspired by an obvious universalist tendency, as they neverthought to restrict the efficacy of the conventions to the signatorycountries: on the contrary, the subsequent accession of any othermembers of the international community was provided for anddesired.

The South American International Juridica1 Congress can be con­sidered as a real success : the treaties endorsed were soon ratified byall signing parties, except Brazil and Chile, which refrained from doingso with respect to the instruments on international civil law,international penal law and the exercise of liberal professions 16.

Notwithstanding such reservations, the evaluation of the resultsimpose taking into consideration that relationships between some ofthe signing parties were not very friendly at that time; and in thisrespect, Estanislao Zeballos wrote .

70 G. Parra-Aranguren

"the Argentine Republic had serious matters pending with Chileand Brazil ; Chile had to solve difficult problems with Peru, andthe position of Bolivia regarding Chile, Argentina and Peru wassomehow ambiguous, since they were discussing not onlypolitical, but also boundary matters 17".

The Treaties of Montevideo were strongly supported at the FirstAmerican International Conference : the resolution of 4 March 1890recommended to all the attenders that they should carry out theirconscientious examination to decide, within one year, if they wouldaccede to them : and if they did not, to set forth the reasons for theirposition 18. Even though the suggestion did not have practical success,the Montevideo Conventions served as a model to the treaties endorsedat the First Central American Juridical Congress which was held inGuatemala in 1897 19; and the instrument on international civilprocedurallaw was copied almost textually in the Caracas Conventionon the execution of foreign acts, approved in July 1911 20.

5. The restricted territorial operation of the Montevideo Treatiesand the necessity of establishing common rules for the entirehemisphere explain the efforts of the Second American InternationalConference, which was held in Mexico in 1902 : the delegate of Brazil,Dr. José Hyginio Duarte Pereira, proposed the appointment of acommission for the purpose of preparing acode of Public InternationalLaw and another of Private International Law 21, and even though thesuggestion was approved, the idea only materialized in the ThirdAmerican International Conference (I906). With this opportunity theCommission ofInternational Jurists was formally created, and in orderto achieve the desired codification it had to take into account not onlythe principIes prevailing on the Continent, but also, and particularly,the Montevideo Treaties of 1889.

The "Commission of International Jurists" held its inauguralmeeting in Rio de Janeiro on 26 June 1912, with the participation ofall the American countries, excepting Haiti, Honduras and Nicara­gua 22 : it had the opportunity to discuss two instruments prepared atthe request of the Government of Brazil : one of them on PublicInternational Law by Epitacio Pessoa and the other on PrivateInternational Law by Lafayette Rodrigues Pereira. However, all theefforts only led to the appointment of six sub-commissions to keep onworking.

The Fifth Sub-Commission, with its seat in Montevideo, was en­trusted with the study of the problems arising out of the capacity of

Conflict of Laws Conventions in Latin America 71

persons, the condition of foreigners, and the 1aw of family andsuccession ; it was the scene of the unsuccessfu1 confrontation betweenadherents of the 1aw of nationality (Cándido de Oliveira for Brazil)andofthe law of domicile (Cecilio Baez and Eusebio Ayala for Bolivia andPedro José Varela for Uruguay). Since all conciliatory attempts failed,it was necessary to elaborate two opposed projects on the matter.

The Sixth Sub-Commission met in Lima to take care of alí the othersubjects on Private International Law, including penallaw problems :the Peruvian delegate, Dr. Alberto Elmore, prepared a draft that wasimmediately circulated among governments, asking for their remarks.

Even though sorne progress was made, efforts toward codificationwere interrupted by the First World War. When the hemisphericmeetings were resumed, the Fifth American International Conferenceheld in Santiago de Chile (1923) reaffirmed the necessity of a generalcode on Private International Law, but regarding Public InternationalLaw it recommended that "the codification be gradual and pro­gressive" : at the same time governments were required to appointtwo delegates to the Commission of Jurists of Rio de Janeiro, withthe purpose of continuing the codification work on the AmericanContinent.

The importance of the proposed task and the wishes to have itsuccessfully concluded explain the suggestion of the Secretary of Stateof the United States of America <Charles Evans Hughes) of entrustingthe preparation of the pertinent draft to "an organism composed ofAmerican jurists", because the ideal was that its "sole authority shouldrest in the truth and wisdom of its own affírmations" 23.

The American Institute of International Law attended to therequest . first it prepared 30 projects on diverse subjects of PublicInternational Law and immediately thereafter a commission wasappointed to formulate the code of Private International Law.Nevertheless, the task was fulfilled with success and celerity by aneminent Cuban jurist, Dr. Antonio Sanchez de Bustamante y Sirven, ina draft consisting of 435 articles, in four great books, under the titles :International Civil Láw, International Commercial Law, InternationalPenal Law and International Procedural Law. It was preceded by an"Introduction", in which were ratified "certaín fundamental ideaswith respect to the concept and to the contents of Private InternationalLaw and to the principles that must inspire its regulation" 24.

The gigantic work of Dr. Antonio Sanchez de Bustamante y Sirvenwas approved, without major changes, by the American Institute ofTntern::Jtinnal Law ; and it was accompanied by a draft convention to

72 G. Parra-Aranguren

allow for the reservation of one or several of its articles by the signingcountries and to determine the territorial scope of operation of thetreaty.

After it was approved by the Commission of Jurists of Rio deJaneiro on 18 April 1927, it was submitted to the Sixth AmericanInternational Conference, and a long period of uninterrupted effortwas concluded with success in the city of Havana : the Convention onPrivate International Law that had as an annex the "Bustamante Code"was formally signed on 20 February 1928 25.

6. It is to be noted that the delegation of the United States ofAmerica abstained from signing the Bustamante Code : and to justifyits attitude it brought up arguments of a constitutional nature, based onthe competences which correspond to the member States and to theattributions and powers of the federal government. Nevertheless,emphasis was stressed on the firm purpose of "not breaking awayfrom Latin Arnerica" ; and for that reason a careful study of the codewould be carried out, with the hope of being able to adhere "in part orin a considerable part to its stipulations" 26.

Even though the rest of the countries attending the Sixth AmericanInternational Conference endorsed the Bustamante Code, their atti­tudes were different: Colombia, Costa Rica, Chile, Nicaragua andUruguay affirmed in general terms their intention not to apply theBustamante Code when it opposed their respective internationallegislations, with the eventuality that Colombia and Nicaragua alsoexpressed their specific rejection of the articles on divorce. On theother hand, Argentina, Brazil, El Salvador and Paraguay identifiedthose articles which they opposed; and it was signed without anyreservations only by Bolivia, Cuba, Ecuador, Haiti, Honduras,Mexico, Peru and Venezuela.

7. The difficulties which existed at the Sixth American Internatio­nal Conference for the unconditional endorsement of the BustamanteCode were also present when attempts were made to obtain itsratification: and finally it was only ratified without reservations byCuba (1928), Guatemala (929), Honduras (1930), Nicaragua (930),Panama (928) and Peru (1929).

The Bustamante Code had partial success in four States, whichratified it with specific reservations: (a) Brazil (I929) discarded therules on separation from bed and board and on divorce a vinculo; (b)Haiti (1930) made reservations to Articles 383, 385, 386 and 387,which accepted the principIe of equal treatment for both nationals andforeigners in sorne processal aspects; (e) the Dominican Republic

Conflict of Laws Conventions in Latin America 73

(929) reiterated its preference for the law of nationality in matters ofpersonal status; it also reserved the possible nationality of corpora­tions and the solution that imposed acknowledgement to a Dominicanof a different nationality while he resides in the territory , and sus­tained the jurisdiction of its courts to decide controversies arisingout of acts performed in the country by any person, physical orjuridical, without taking into consideration the nature of the acti­vities , (d) Venezuela (932) made a general reservation on life im­prisonment and also reserved 44 articles: apart from the wholechapter on extraterritorial recognition of foreign acts and judgments,the main purpose of the Venezuelan attitude was to preventapplication of foreign law with respect 10 property located within itsterritory.

The Bustamante Code has not been ratified by Argentina, Colombia,Mexico, Paraguay and Uruguay and had a merely formal reception byBolivia, Costa Rica, Chile, Ecuador and El Salvador, because theyratified it with general reservations. This conduct is not in accordancewith Article 3 of the convention approved by the Sixth AmericanInternational Conference that only authorizes specifíc reservations;and therefore a general reservation is to be considered as a lack ofratification : it is not "juridically nor practically feasibie to admit thetreaty on the whole and at the same time subordinate its application tothe fact that it does not oppose or contradict the internal law or othertreaties to which the State is party" 27.

8. The indifferent and even suspicious attitude of a considerablenumber of American countries made it necessary to carry out a studyof the causes which determined this conduct; and this examinationhas led to establishing that, precisely, the wish to constitute adiplomatic success is one of the major inconveniences of theBustamante Codeo In fact, on the subject of the State and the capacityof persons, it represents the "international legislation of thedivergences", as Dr. Antonio de Bustamante y Sirven himselfacknowledged; and besides, sorne expressions are used in anambiguous way : "territorial law" and "local law" may mean the lexfori, the lex loci celebrationis or the lex situs. On the other hand, thegreat importance of public policy leads to "querying the sense of sucha great and continued effort, if in the end, who will have the last wordon almost all the subjects is the law of the forum (lex fori)" 28.

9. The foregoing basic inconveniences, and others less important,explain the necessity of undertaking, with renewedenergy, codifyingefforts, even though their continuation had to wait for the

74 G. Parra-Aranguren

appeasement of the anguishes and confusions caused by the SecondWorld War. Nevertheless, in the meantime, the countries ofthe Southheld the Second Montevideo Congress to examine and improve the1889 Conventions and to find out the best methods to codify PrivateInternational Law in the American Continent.

In the first period of sessions, delegates of Argentina, Bolivia, Chile,Paraguay, Peru and Uruguay, signed on 4 August 1939 a Treaty onintellectual property and a Convention on the exercise of the liberalprofessions, which was substituted for the instrument previouslyapproved ; and the pertinent rules of the convention on internationalpenal law were the basis of a new treaty on political asylum andrefugees.

A few months later, a new period of sessions took place, with thesupplementary attendance of Brazil and Colombia; and whenactivities were concluded, on 19 March 1940, the followingconventions were endorsed: Treaty on International CommercialNavigation Law, Treaty on International Commercial Law, Treaty onInternational Civil Law, Treaty on International Civil Procedural Law,Treaty on International Penal Law and an Additional Protocoll",

The geographical success of the Second South American Congressof Private International Law has been very restricted : only Paraguayand Uruguay ratified all the conventions, even though the latter madereservations on some articles of the Treaty ofInternational Civil Law ;and the Argentine Republic abstained from ratifying the Treaty onPolitical Asylum and Refugees, the Treaty on Intellectual Property andthe Treaty on Penal International Law 30. Consequently, the indolenceof the signing countries themselves has clearly evidenced the urgentneed for a new course of action, which only found a stable path in theefforts undertaken within the framework of the Organization ofAmerican States.

75

CHAPTER Il

THE IBERO-AMERICAN COMMUNITY

10. The "Americanist" attitude of Spain on juridical matters wasfirst realized at the end of the nineteenth century, when two in­ternational conferences were held with the purpose of analysingdiverse matters of daily importance in reciprocal relationships : at theFirst Ibero-American Juridical Congress held in Lisbon in 1889,among other problems examined were the conflicts betweennationality and domicile 31; and three years later, in 1892, due to thecommemoration of the Fourth Centenary of the Discovery ofAmerica, the Second Ibero-American Juridical Congress considered abroader agenda, from which the following should be remembered :the means of giving efficacy not only to obligations assumed in Spain,Portugal and the Ibero-American Republics, but also to proceedingsand means of evidence and to resolutions of the courts of justice, bothin civil and criminal matters (Second Pointl , the "basis for aninternational legislation common to the mentioned countries onliterary, artistic and industrial property" (Point Three) ; and "marriageand divorce in Private International Law" (Point Five) 32.

Notwithstanding the interest of the attenders, neither of the twoIbero-American juridical congresses led to any positive results ; andneither were the initiatives of Spain, of that same time, whichconsisted in the endorsement ad-referendum in 1893 ofthe Treaties ofMontevideo and in its efforts, three years later, to accede to theProtocol on Literary and Artistic Property of 1889, successful ".

11. The Spanish "Americanist" attitude acquired new life in 1934when Don Manuel De Lasala Llanas examined the possibility of Spainacceding to the Bustamante Code; in his affirmative answer hemaintained that

"it is not only convenient to the general and abstract interest ofthe law and to the universalist ideal, but also to the national andparticular reciprocal interests of many thousands of Spanishpeople residing in America and of Americans that live among usin our country 34".

The proposition set forth was well received by Dr. J. QueroMolares, with some necessary reservations 3S, but was categorically

76 G. Parra-Aranguren

rejected by Don Federico de Castro: as far as he was concerned the

"compromising nature of the Bustamante Code and theextraordinary importance attributed to public policy, preventedthe treaty from displaying its beneficial influence in the reciprocalrelationships among the contracting countries 36".

The suggestion of Professor De Lasala Llanas, was favourablyreceived in the Spanish-American media and 37, later, was the object ofa new discussion with Dr. Federico de Castro 38; but was finallyfrustrated, possibly by the poor effectivity of the Bustamante Code inthe American hemisphere itself, and only a very few traces remainedof such a significant effort on the contemporaneous Spanishdoctrine 39.

12. Shortly after the Second World War finished the conscientious­ness regarding diverse circumstances of a historical and sociologicalnature that establish the basis of the Spanish-Lusitanian-Americancommunity was awakened ; and on 21 June 195O, the first particularlyeloquent preparatory circular letter of the First Ibero-AmericanCongress of International Law asserted the following .

"It is an evident fact for those who have studied the problem,both from its historical point of view and in its more recentmanifestation, that between the Spanish and Portuguese speakingcountries there exists a special community, not only of religion,language, culture and tradition, but also of juridical conceptionsthat have materialized in an outstanding unity in their internalcodes and laws and also in internationallaw, which has led to thecreation of a special conception of the international problems,acknowledged by every jurist as specific, while, on the otherhand, traditional relationships of fraternity with the former homecountries and continuous intercourse of emigrants and travellers,have created special problems and original solutions for thecitizens of the countries of one and the other side of the ocean 40."

From that very date the movement, orientated towards juridicalunification of the comrnunity, has never weakened; and itscontinuous advance during three decades can be connected to twofundamental sources : the "Hispanic-Lusitanian-American Institute ofInternational Law" and the "Conference of Ministers of Justice of theHispanic-Lusitanian-American and Philippine Countries".

13. The Hispanic-Lusitanian-American Institute 01 InternationalLaw represents the actual materialization of the ideas of a Colombian

Conflict of Laws Conventions in Latin Amerlca 77

jurist, Dr. Jesús María Yepez 41, and was created at the "First Hispanic­Lusitanian-American Congress of International Law" which met inMadrid from 1 to 12 October 1951 : it constitutes "an exclusivelyscientific organism of no political nature whatsoever"; and within itsbasic objectives are "the theoretical and practical study of the problemsof International Law and its related disciplines, and the diffusion of itsrules and principles" (Article 1 (e)).

Since its constitution, the Institute has counted on the invaluablescientific support of the most important jurists of the Hispanic­Lusitanian-American community 42, and when it celebrated its "SilverAnniversary" in Madrid, in 1977, it could account for 11 meetingsheld in diverse member countries, at which juridical problems ofparticular significance on reciprocal relationships had been mostthoroughly studied.

Within the scope of Private International Law itself, the followingshould be pointed out: in the first place, the efforts of the "FirstHispanic-Lusitanian-American Congress of International Law" on theimportant subject of recognition and enforcement of foreignjudgments. The report presented by Dr. José María Trias de Bes andMariano Aguilar Navarro, besides the enforceable nature of thedecision and of the international competence of the court which passesjudgment, accepted as necessary requirements the respect of publicpolicy and the absence of an "evident fraud in the law". Nevertheless,nothing was stipulated regarding the attributive criteria of internatio­na' competence, even though it warned that the judgment shoulddecide a personal action or one referring to a chattel, "if the movableobject of the action was moved to the country of execution during theproceedings or after same". Regarding the rest, the [ex fori was todecide upon the validity of the summons and on the declaration ofcontempt of court, as the case may be ; and likewise, to regulate theexequatur (competent authorities and proceedings).

Subsequent congresses of the Institute have persisted in studying themost important problems of Private International Law relating to theIbero-American community , and in successive order the followingshould be pointed out: resolution VI, adopted in Quito (957),acknowledged competence of the [ex loci to regulate the form andsubstance of marriage, except in cases of fraud in the law or ofceremonies before diplomatic or consular agents , likewise, itstipulated respect of those incapacities based on public policy notionsaccording to the personal law of each one of the contracting parties 43.

In Santiago de Compostela (966), resolution V of the Sixth

78 G. Parra-Aranguren

Congress agreed to "suggest to the Organization of American Statesthat the Inter-American Juridical Committee include in the Busta­mante Code rules regarding the solution of cont1icts between labourlaws within the Hispanic Community" 44; and the important subject offoreign investments was examined at Merida, Venezuela (1967):resolution VI emphasized the need of bringing up to date the juridicalsystems ofthe integrants of the community, to include "new standardsof Private International Law that facilitate the activities of theindividual". Such an approach also imposed

"supporting the studies in order to review the conventionalsystems of Private International Law of America (BustamanteCode and Treaties of Montevideo) and those directed towardsobtaining the accession of the rest of the countries of theHispanic-Lusitanian-American-Philippine Community 45".

The importance ofpublic policy and ofthe unity ofpatrimony wereasserted as leading principles for the "Basis of a Uniform Law ofPrivate International Law" in resolution VI approved at the SeventhCongress in Buenos Aires (1969) 46; and the same idea was reproduced14 months later, in Lima (1970), through the following declaration :

"That the Hispanic-Lusitanian-American Institute of Interna­tional Law should sponsor the studies of Comparative Law and ofPrivate International Law that may Iead to acceIerating theprocess of uniformization and harmonization of the legisIation,on the subject of contlict of Iaws, among the States Members ofthe Hispanic-Lusitanian-American-Philippine Community" (reso­lution VI) 47.

"The impact of the movement of economic integration in PrivateLaw and Private International Law" was dealt with in recommenda­tion VII, approved in Lisbon (1972) 48; "The PrincipIe ofVested Rightsin Private International Law" had an autonomous treatment inGuanajuato, Mexico (1974) 49; and in the EIeventh Congress, heId inMadrid (1977), very important statements were made on the "Problemof the application of foreign law in the Hispanic-Lusitanian-AmericanCommunity" and in relation to the "New aspects of PrivateInternational Law on the subject of economic relations", whereparticular emphasis was placed on the necessary "respect for thedignity of human beings and to juridical security as a means towardsfulfilment of justice" 50.

14. The Conference 01 Ministers 01 Justice 01 the Hispanic-

Confltct 01 Laws Conventions in Latin America 79

Lusitanian-American and Philippine Countries met for the first time inMadrid, from 16 to 19 September 1970, due to the initiative of theSpanish Government for the purpose of commemorating the Cen­tenary of the Organic Law of the Judiciary. On that same occasion,it was decided to establish a permanent organization with periodicmeetings, every two years in rotation among the member States, forthe purpose of obtaining "an effective juridical co-operation and insuch matters included within the scope of the departments of jus­tice". The creation of a "delegate commission" and a "perrnanentsecretariat" was also approved, with their seat in Spain ; and it wasrecommended that each one of the participants should appoint anational organism with the specific task of facilitating its re1ationshipswith the general permanent secretariat.

The conference a1so approved the convenience of intensifyingreciprocal co-operation on the subjects attributed by the respectivenational legislations to the departments of justice j and, likewise,emphasized two aspects of great interest to Private International Law :on the one hand it sustained the urgency of exchanging information onthe law in force in each one of the countries and, as far as possib1e, ofthe jurisprudence and of scientific doctrine ; and, on the other hand, itinsisted on the clear advantages of adopting a uniform system ofinternational judicial assistance, particularly on the matter ofrecognition and execution of foreign judgments.

15. The agreements of the Madrid Declaration found the necessaryjuridical basis in Brasilia, on 22 September 1972, when the Regulationwas formally approved at the Second Conference 01Ministers 01Justice01 the Htspantc-Lusitanian-Amertcan and Philippíne Countries j andthe new organism had the following features . it was international,whereas in view of "a phenomenon of voluntary association, themember States meet with the purpose of attaining commonaspirations'', it was of a regional nature, as on1y the countries of theHispanic-Lusitanian-American and Philippine Community couldbecome members (Article 2, paragraph 1) ; and it is a special organismbecause it only endeavours "to study and promote the establishment offorms of co-operation on juridical matters" (Article 1, paragraph 1).

As to the rest, the "regulation" reproduced previous agreementsregarding the "delegate commission" and the "perrnanent generalsecretariat", but it also included rules for solving sorne prob1emsrelating to its internal organization and its powers, with the objectiveof guaranteeing its adequate operation ; and it reiterated the purpose of

80 G. Parra-Aranguren

periodical meetings of the conference, every two years, in rotationamong the member countries.

The Conference of Brasilia did not restrict itself to the approval ofthe "regulation": and within its specific objectives the results weretruly successful, even though the subsequent attitude of the membercountries has not met the original expectations : two conventions onPrivate Internationa! Law that have not been ratified are the bestevidence of the actual situation, and notwithstanding the fact that theydeal with subjects so important in practice as juridica! information andjudicial assistance.

16. The Convention on Information in Juridical Matters regardingLegal Rules in Force and their Application was endorsed on 22September 1972: its Article 1 imposed on the member countriesthe commitment of reciprocalIy facilitating among themselves theinformation required on their respective legislations ; and with such apurpose in mind, the use of the services of a central authority toreceive and transmit the corresponding applications was provided for(Article 2).

The convention established the forma! requirements that must befulfilIed in the request (Article 4), which can only be set forth throughthe national authority, by "the judicial authorities and the organismswhich have been attributed with functions of a jurisdictional nature"(Article 3).

The answer will be gratuitous and "in no case whatsoever wilI itcause colIection of taxes or expenses of any nature" (Artiele 7) ; itscontents will not be binding, and it must be "objective and impartialand contain, according to the cases, the laws and regulations and, asfar as possible, judicial decisions and extracts of doctrinal commen­taries''. if necessary, it will be "accompanied by an explanatorycommentary" (Artiele 5).

The answer must be given "within the shortest time possible"; if "acertain terrn" is necessary, the requesting authority wilI be informed(Article 6) ; and the requested State has to reply, "unless the interests ofthe country are affected by the litigation or that the answer could affectits security or sovereignty" (Article 6).

The document approved in Brasilia constitutes a simplified versionof the agreement on the same matter endorsed by the ministers ofjustice of the European Council, at their fifth meeting in London andsubmitted for signature on 7 June 1968. The differences are of asecondary nature : the Hispanic-Lusitanian-American Conventiononly omits the restriction on the subjects susceptible to juridica!

Confltct 01 Laws Conventions in Latin Ameriea 81

information and does not contemplate the possibility of a separateauthority to receive and transmit the applications ; it eliminates thepossibility of having the matter submitted by the requested authority toa qualified jurist in order that he may elaborate the answer ; and doesnot provide a solution to the specific problems of the federal States.

Consequently, the Brasilia Agreement is subject to the same praisesand criticisms that have been expressed regarding the EuropeanConvention: and in the last instance daily experience will be thesupreme judge of the excellence of the agreement; bearing in mindthat the characteristics of the Hispanic-Lusitanian-American Commu­nity will exercise a decisive influence on the final results, in particular,the enormous geographical distances among its Members which arelocated even on almost antipodal positions on the earth (Spain and thePhilippines),

17. The Convention on Judicial Assistance, also endorsed in Brasiliaon 22 September 1972, in Spanish and Portuguese, dedicates a firstchapter, constituted in a single article, to establish "the equality oftreatment in procedural proceedings" among nationals of thecontracting countries: this is a principle pacifically admitted inAmerican treaties since ancient times, with general acceptance in themajority on the internal laws of this hemisphere.

The "mutual assistance" provided for in the agreement tends tofacilitate communications between the jurisdictional organ and anyparty to the process, either litígating parties or third parties, if they aredomiciled or have established residence in the territory of the memberStates , and it covers several acts of a mere procedural nature, asinterrogatory of the parties or of the witnesses, the issuance of experts'reports, the delivery or reception of any document, or practice ofjudicial examinations of any object, whenever these means of evidenceare to be performed in the territory of the requested State (Article 2).

The application must be submitted through letters rogatory or byany other means used to obtain assistance within the territory of therequesting State, among judges or courts of the same category (Artícle3) ; and it can be set forth : (a) by diplomatic or consular means ; (b)bycommunication beween judicial authorities, the supreme court ofjustice or the respective ministers of justice ; and (e) by the interestedparties through persons authorized before the court to which therequest in made.

Pursuant to Article 5 it is only possible to deny judicial assistance inthe following hypotheses . (a) if the activities that itendeavours tocarry out are contrary to public policy, morals or an attempt against

82 G. Parra-Aranguren

the sovereignty or security of the State of destination ; (b) when itaffects the jurisdiction of the court before which the request is made ;(e) if the contents of the proceedings to be carried out do not fall withinthe attributions of the requested or of the requiring authority ; and (d)when the authenticity of the document is not duly substantiated. Thereasons for denial must be given in such cases, and they will be givento the requesting authority by the same means used for the forwardingof the application (Article 5).

It is not a good reason to deny the petition the fact that the courtto which the request is made does not have jurisdiction for theperformance of the proceedings requested or that it cannot giveassistance because the person or thing the object of the petition is inanother territorial jurisdiction. In such cases it will forward the letterrogatory to the competent authority and will duly notify therequesting State (Article 8).

Now then the petition must indicate clearly the procedural act thatis requested : and the lex loci aetus will govern all matters related tothe execution ofthe letter rogatory, including measures ofcompulsion,if they were necessary. Nevertheless, the possibility of satisfyingspecial forms is admitted in the case of express requirement, and if noopposition exists in the law of the place of execution (Article 7).Finally, the interested party should pay the necessary expenses inadvance, according to the locallaw (Article 9) ; and it has the right tointervene in the diverse acts, and for that purpose, the respective dateand place will be notified to the requesting authority, if such petition isincluded in the letter rogatory (Article 7).

The "Agreement of Judicial Assistance" adopted as a model the"Convention on service abroad of judicial and extra-judicial docu­ments in civil and commercial matters", which was concluded on15 November 1965 at the Hague Conference on Private InternationalLaw SI.

Notwithstanding such an undeniable fact, there exist sornedifferences: on the one hand, the Brazilian Agreement does notrestrict its scope of operation to civil or commercial matters ; and, onthe other, it does not stipulate anything regarding the operation of aseparate authority to carry out the necessary proceedings. TheHispanic-Lusitanian-Arnerican Convention did not include models ofletters rogatory or of certificates to substantiate the execution of therequest ; and does not solve eventual problems that may arise whenthe defendant, even though duly served, does not appear before therequesting foreign court.

Confliet of Laws Conventions in Latin Ameriea 83

As to the rest, the Hague Convention excludes the possibility ofrefusal to comply "solely on the ground that, under its internal law, itelaims exclusive jurisdiction over the subject-matter of the action, orthat its internal law would not permit the action upon which theapplication is based" (Article 13, paragraph 2); and it (Article 8)expressly allows each contracting State to effect service of judicialdocuments upon persons abroad, without the application of anycompulsion, directly through its diplomatic or consular agents, whenthere is no opposition from the State of destination. These matterswere not considered by the "Brazilian Convention".

18. The Third Conferenee of Ministers of Justiee of the Hispanic­Lusitanian-Ameriean and Philippine Countries was held in BuenosAires; and on 13 June 1975, two agreements were endorsed, one onextraterritorial effícacy of judgments and arbitral awards, and theother on simplification of the requirement of legalization.

The conference also approved important resolutions on diversesubjects, among which the following can be mentioned: those inrelation to uniform rules on civil registries , legislative digest ,continuation ofthe study ofthe possibility of elaborating an agreementdealing with the execution of certain penal judgments ; the juridicalrégime of mercantile corporations ; protection of a person's privacy ;the legal status of children born out of wedlock ; foreign investmentsand utilization of information through computers in the juridical field.

19. The Convention on a Uniform System for the Enforcement ofCivil Judgments and Arbitral Awards, besides the final provisions,includes three chapters . one to determine its scope of application,another to establish the requirements and effects of the recognition ;and the third on the exequatur proceedings.

The Agreement endorsed in Buenos Aires ineludes judicial de­cisions on matters of private law (but not those limited to orderprovísory or conservative measures), arbitral awards on similarsubjects and acts of voluntary jurisdiction ; but expressly excludesjudgments relating to the following matters : (a) status and capacity ofpersons and family law, either constitutive or declaratory of suchstatus or rights, or if they impose pecuniary obligations as a con­sequence of the declaration; (b) successions by cause of death ; and(e) the constitution or existence of juridical persons or of attributions ofits organs (Article 1).

Also excluded from the scope of the application of the agreementwere judgments : (a) of the administrative or contentious-administra­tive courts ; (b) of the penal courts, inclusive of those aspects that affect

84 G. Parra-Aranguren

civil rights ; (e) on labour matters, including social security and socialprotection, but with the exception of the pecuniary obligations arisingout of these decisions (Article 2).

The second chapter of the convention stipulates the necessaryrequisites for "recognition" of the foreign judgment, without makingdistinctions between its execution and the recognition itself (exceptiores iudicata}: and Article 5 prescribes the following conditions : (a)international competence of the State that has rendered the judgment ;(b) the judgment must be final; (e)service on the parties in personam orthrough their legal representative, pursuant to the law of the Statewhere the judgment was pronounced.

Notwithstanding the fulfilment of the aforementioned requisites,Artiele 9 allows the refusal of the extraterritorial efficacy in any of thefollowing cases: (a) if the decision were elearly incompatible with thepublic policy of the requested State, it being noted that the possiblerejection due to the illicity of the obligation on which the elaim isfounded is expressly mentioned. Nevertheless, it does not constitute animpediment to recognition of the application by the judge of "a lawdifferent to that which would be relevant according to the PrivateInternational Law of the requested State" (Article 12, paragraph 3) ; (b)in case of litis pendentiae (ídentity of the parties, of the object and basisof the same facts), "except that the action had been presented before inthe State of origin" of the judgment ; and (e) when it opposes a decisionon the same matter that has been pronounced in the requested State orin a third country, if in the latter case it satisfies the requirementsnecessary for its recognition.

The various criteria in different countries to regulate jurisdiction oftheir judges and the wish to establish an effective uniform system, areexplained by the rules established in Artiele 6 ; and it is declaredcompetent in the international sphere : (I) in relation to contractswhen the will of the parties is admitted, but it has to be in writing andthe choice is limited to the courts of their nationality or of theirdomicile. In a subsidiary manner, jurisdiction is determined by thedomicile or permanent residence ofthe defendant at the time when thecomplaint is filed ; and if it refers to a juridical person, at the place ofits actual seat or of its main office ; (2) the place where determinedevents occur sets the competence of the courts to decide claims basedon extra-contractual obligations; (3) the courts of the situs arecompetent with respect to the actions on property rights ; and (4) infamily matters courts of the domicile or residence of the defendant arethe ones that should be resorted too

Conflict of Laws Conventions in Latin America 85

The foregoing criteria are likewise useful for deciding jurisdiction inthe case of a counterclaim ; and also when the counterclaim is basedon the same facts that support the principal action (Article 7).

In spite of the foregoing rules, the jurisdiction of the State of originmay not be recognized in two cases; (a) if the law of the requestedState reserves for its courts exclusive jurisdiction, either by reason ofthe subject-matter or by virtue of an agreement between the parties ;and (b) if the requested State considers itself bound 10 recognize anagreement by which exclusive jurisdiction is conferred upon arbi­trators (Article 8).

The third chapter refers to exequatur proceedings ; due to the lackof special rules it declares the lex loci of the requested State applicablefor determining the competent authority and to govern proceduralrequirements (ordinatoria Litae) (Articles 10 and 11).

The application for exequatur must be accompanied by a "literal,authentic or authenticated" copy of the foreign judgment, dulytranslated, with evidence that it is a final decision : in case of default, itis also necessary to present the evidence that the summonses wereserved on the defendant according to the lex fori (Article 13,paragraphs I and 2).

The applicant of the exequatur is not subject to the cautio judicatumsolvi; nor to any other kind of guarantee because of his state as aforeigner (Article 15) ; and has the right to request all conservation orpreventive measures provided by the lex fori (Article 14),

Once the exequatur proceedings have started, the losing party in theforeign judgment must be summoned and the intervention of thePublic Attorney is also required for the purpose of securing the correctapplication of the law (Article 13, paragraph 3).

Likewise, recognition of the foreign decision can be partial, ifpossible (Artícle 4, paragraph 2); but a new examination ofthe meritsof the case is not admissible, "except as it were necessary to prove thatthe stipulated requirements have been met". Nevertheless, except inthe case of default, facts used to confer jurisdiction on the foreign courtwill be considered as fully substantiated (Artícle 12, paragraphs land 2).

The agreement endorsed in Buenos Aires reproduces the underlyingprincipies of the "convention on the recognition and enforcement offoreign judgments in civil and commercial matters", concluded onI February 1971 at the Hague Conference on Private International Law.

However, and besides points of minor importance, the followingdifferences can be pointed out;

86 G. Parra-Aranguren

(a) The Hispanic-Lusitanian-American Agreement ineludes arbitralawards, on the one hand, but on the other it does not expressly exceptdecisions on damages in the nuelear field, nor those on questions ofbankruptcy, compositions or analogous proceedings. This conelusionis only in the case that its sphere of application is restricted to civiljudgments, as is deelared in the heading of the convention, but it is alsoto be taken into account that its Artiele I refers to matters of PrivateLaw, within which mercantile matters certainly do fit.

(b) The Hague Convention admits denying recognition "if thedecision were obtained by fraud in the procedural sense" (Article 5,paragraph 2), and expressly accepts the tacit submission of thedefendant as a basis for international jurisdiction (Article 10,paragraph 6). It also regulates the position of a party that has beengranted legal aid in the State of origin (Article 18) and extends its scopeof operation to settlements made in court in the course of a pendingproceeding which may be enforced in the State of origin (Article 19).AH these matters were not regulated in the Hispanic-Lusitanian­American and Philippine Agreement.

20. The Convention on the Simpliflcation 01 the Legalization 01Foreign Public Documents was also endorsed, in Spanish andPortuguese, on 13 June 1975 in Buenos Aires j and it is applicable to"public documents which have been executed in the territory of one ofthe contracting States and which have to be produced in the territoryof any other contracting State". With this purpose in mind Arti­ele I considers as public documents "those which have a judicial,administrative or notarial nature, according to the characteristic of theauthority which has authorized them, pursuant to the law of the countryin which the said documents have been executed".

The main objective of the agreement is orientated towardseliminating the requisite of legalization, that is

"the formality of which the diplomatic or consular agents of theState of the territory where the document has to be producedcertifies the capacity in which the signer of the document hasacted, the authenticity of the signature and, where appropriate,the identity of the seal or stamp affixed to same" (Article 2>-

Even though legalization is eliminated, Article 3 requires amarginal note or certification, performed by the competent authorityof the State of origin j but this will be unnecessary if the law of theState of destination has abolished it or has expressly exempted thedocument from legalization.

Conflict 01 Laws Conventions in Latin America 87

The certification or marginal note must be issued according to themodel annexed to the agreement and be added to the document itself :when done in the correct form, it will have the same efficacy as thelegalization, as stated in Article 4 ; it must be pointed out that "thesignature, seal and stamp which appear on the certification are exemptfrom any other formality".

The authorities competent to issue the certification or marginal noteare to be appointed by each contracting country, which will notify thegeneral secretariat of the conference of ministers of justice ; and theymust keep a register with the following indications : (a) number anddate of the certification ; (b) name of the signer of the public documentand the capacity in which he has acted, or, in the case of unsigneddocuments, the indication of the authority which has affixed the sealor stamp. Likewise, any interested party has the right to demandverification of the marginal note with the entries made in the registry,

Besides general precepts relative 10 the entering into force, durationand denunciation, and to the functions of the general-secretary, theagreement imposes on each contracting State the duty of taking thenecessary steps to prevent the performance of legalizations by itsdiplomatic or consular agents in cases where such a formality has beenexempted.

The document endorsed in Buenos Aires reproduces almosttextually the precepts ofthe "convention abolishing the requirement oflegalization for foreign public documents", concluded on 5 Octo­ber 1961 at the Hague Conference on Private International Law.Differences are very few and basically affect their respective scope ofoperation since the Hague Convention expressly excludes documentsexecuted by diplomatic or consular agents and administrativedocuments that deal directly with commercial or customs transactions.Likewise, it gives a more detailed definition of public documents(Article 1) and admits, in a specific provision, preferential applicationof the most favourable existing agreements.

21. The Fourth Conference 01 the Ministers 01Justice 01Hispanic­Lusitanian-Arnerican and Philippine Countries was held in Caracas 52;

and with the preparatory work of the delegate commission that hadmet in Madrid the previous year, it approved a "convention onissuance of excerpts of certificates from the civil registry".

In the Final Minutes of 28 April 1978, several recommendationswere also formulated, arnong which it should be mentioned thatregarding the juridical status of children born out of wedlock. Theperrnanent general secretariat was also entrusted with the task of

88 G. Parra-Aranguren

further studies directed towards unifying the régime of enforcement offoreign penal sentences ; and to establish relevant guidelines, both for amodel law dealing with mercantile corporations and for a law thatestablishes a special type of Hispanic-American commercial corpora­tion.

The permanent general secretariat was commissioned also toexplore the subject of juridical information through computers and toinitiate studies "for the elaboration of a uniform law on arbitration, or,if necessary, of an agreement on the matter", and on the "convenienceand possibilities of creating a Hispanic-American Centre of Arbitra­tion".

22. The Convention on Issuance 01 Excerpts 01 Civil RegistryCertificates was endorsed on 28 April 1978 and pursuant to its Arti­ele 1, it applies to documents referring to civil status in order toauthenticate birth, marriage or death, with the purpose of displayingefficacy in any of the contracting States. The excerpts must ineludemarginal notes or entries, whenever it is permitted by the internallaw,and will be issued to those persons authorized to obtain true copiesfrom the original certificates, pursuant to the internal law of thecountry where the document has been executed.

Artieles 2 and 3 indicate guidelines for the issuance of the excerptsas well as the necessary mentions for the different types and abo;breviations which may be used: likewise, Artiele 6 prescribes theuniformity regarding the "type of paper, format and other technicalconditions in order to secure the authenticity of the excerpts", andaffirms that without legalization they will serve as evidence in thesame manner as those issued according to the rules of the internallawof the State of origino

Taxes and expenses caused by the excerpts will be identical to thoseestablished for similar certifications according to the internallaw of theState where they are issued (Article 7) ; and the interested parties areauthorized to obtain, at any time, true transcriptions of the samepursuant to the legislation of the respectivecountry (Article 8).

As was mentioned in the preparatory works, the Hispanic­Lusitanian-American Agreement used as a model the "convention onissuance in several languages of excerpts of civil registry certificates"coneluded in Vienna on 8 November 1976 by the "InternationalCommission of the Civil Status", with the purpose of substituting theConvention of Paris, of 27 September 1956. From the point of view ofthe general problematic of Private International Law, it should bepointed out that their express reference to the internal 1awof the

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contracting countries prevents the operation of any kind of "renvoi",and the close similarity with the European convention is groundenough to apply to the Caracas Agreement not only its adversecriticisms, but also its unquestionable virtues.

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CHAPTER III

THE IMPACT OF ECONOMIC INTEGRAnON

23. The roots of the movement towards Latin American integrationgo back to 1956 with the work initiated by the Economic Commissionof the United Nations for Latin America (CEPAL); and they weredefinitively motivated by the successful example of the EuropeanEconomic Community constituted by the Treaty of 25 March 1957.However, the possible creation of a Latin American common marketfaced obstacles of all kinds - political, economic, geographical,juridical and cultural - among which the following stand out;"

"the different levels of development of the region, the smallvolume of the intra-regional commercial relations and the strongdependency of the national economies on a few products forexportation, that were mainly destined to industrialized countriesoutside the Latin American zone 53",

Such considerations predetermined the progressive overcoming ofthe obstacles by efforts of a. partial nature ; and this purpose foundstable routes, towards the end of the fifth decade of the presentcentury, in two juridical instruments that constitute the cornerstoneof all subsequent development in the American hemisphere : theagreement of 18 February 1960 which lays down the foundation of theLatin American Free Trade Association endorsed by Argentina, Brazil,Chile, Mexico, Paraguay, Peru and Uruguay 54; and the GeneralTreaty ofCentral American Economic Integration, signed in Managuaon 13 December 1960 by El Salvador, Guatemala, Honduras andNicaragua ss, However, those initial expressions of the Americanintegration movement differ basically in their immediate objectives.

In fact, the Treaty of Managua imposed the compromise ofestablishing a common market, to be perfected in a five-year term, andof constituting a customs union (Article 1); for that purpose, thecontracting countries committed themselves "to achieve a CentralAmerican zone of free trade, in a term of five years, and to adopt auniform Central American tariff" (Article 2).

24. On the contrary, the Montevideo Convention only pretended tocreate a zone of free trade in a period not longer than 12 years ; andwith that purpose there must be gradually eliminated, "for that

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essential to their reciprocal trade, the taxes and restrictions of all kindsthat burden the importation of products which originate from theterritory of any contracting party". Such objectives would be attainedthrough periodical negotiation, to prepare both national lists and acommon list of products, that, in a progressive way should includethose which were essential to the trade between the contractingparties: in this manner, the agreed liberation remained, in the lastinstance, for the will of the members, whereas neither automaticreductions of tariffs were established nor was a supranational organcreated with sufficient authority to take the relevant decisions.

The primary objective in establishing a zone of free trade, in thewords of Dr. Manuel Adolfo Vieira, explains the absence of rules onPrivate International Law, and the difference between the MontevideoTreaty and the Convention of Rome, which only tried to create acommon market. However, he adds: "we could find, in a broadinterpretation, an aspect of Private International Law in a processalaspect" ; and he also recalls Article 47, where a "general principle ofimmunity and privileges of the Association, of its officers and of itsadvisors is established" 56.

25. In face of the requirements imposed by new schemes ofintegration, an attempt was made to broaden the original objectives ofthe Latin American Association of Free Trade : this explains the effortstowards unification of the substantive law in some areas, such asinsurances, patents and trademarks, transportation in its variousaspects (by road, by sea, by air) and international commercialarbitration. However, concrete results are practically non-existent 51.

The difficulties of progressing in the task of legislative unificationare explained, in part, by the institutional weakness of the organs ofthe Latin American Association of Free Trade (conference, permanentexecutive committee and executive secretary) . they had an inter­governmental nature, with no autonomy, their decisions, after beingexpressed through judicial acts, are only obligatory in the membercountries when duly ratified ss.

Now efforts tending to strengthen and extend the scope of operationof the organs of the Montevideo Treaty have not been successful yet :the absence of effective mechanisms to overcome the difficulties,motivated the countries of medium economic development to considerthe advantages of becoming integrated into a sub-regional system,within the juridical framework of the Latin American Association ofFree Trade. In this manner it was attempted to solve the existingimpasse for the organization of a more aggressive nature to advance in

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the reciprocal dismantling of the obstacles to trade, in theestablishment of a common external tariff and in the implantation ofprincipIes and compromises of joint planification.

26. Something similar was experienced in the attempts of thecountries of the Caribbean area to satisfy old association aspirationsthat took place during the last years of the sixth decade of the presentcentury. In fact, notwithstanding the failure of the Federation 01 theCaribbean (I 958-1962), the common necessity towards an economicintegration and a functional co-operation was felt with renewedurgency, with particular emphasis on transportation, education andhealth : this explains the creation of the Association 01Free Trade 01the Caribbean (CARIFTA), which was basically directed towards theliberation of reciprocal trade 59.

However, the monopoly of the benefits received by the four mostadvanced countries (Jamaica, Trinidad and Tobago, Guyana andBarbados) imposed a structural change tending to obtain an equitabledistribution of the benefits and the progressive development of aH themember States. Fortunately, efforts were successful and in the EighthConference of Heads of Government held in Georgetown from 9April to 12 April 1973, the Treaty that establishes the CaribbeanCommunity (CARICOM) was endorsed, on the basis of a commonmarket with broad possibilities of functional co-operation and of co­ordination of exterior politics 60.

27. As regards the Latin American countries, the new integrationiststrategy appears organically formulated in the Declaration 01 Bogotá,endorsed on 16 August 1966 by Colombia, Chile, Ecuador, Peru andVenezuela 61 : the importance of sub-regional agreements as instru­ments "to accelerate progress in countries of less relative economicdevelopment and of insufficient markets, without prejudice ofmotivating the formation of a regional common market" wasacknowledged; and approved were

"the Basis of a programme of immediate action of the participantcountries, which provides the measures of complementation andeconomic integration , the co-ordination of the politics of thefive countries which endorsed this declaration in commercial,industrial, financial and service matters and technical co­operation 62".

The idea of sub-regional integration received strong motivationfrom the Declaration 01 the Presidents 01 America, made at theirmeeting in Punta del Este, Uruguay, from 12 to 14 April1967, since

Conflict 01 Laws Conventions in Latin America 93

the idea of using sub-regional agreements as proper mechanismsto accelerate the process of economic integration of the region as awhole obtained fuI! acknowledgement at the highest political leve!.

The work of the mixed commission that had been created by the"Declaration of Bogotá", concluded with the endorsement of the Sub­Regional Andean Agreement on 26 May 1969, by Bolivia, Colombia,Chile, Ecuador and Peru. Not long after, on 9 July 1969, it wasdeclared compatible with the Treaty of Montevideo, by resolution 179of the permanent executive committee 63. Venezuela acceded someyears later, with evident naíveness and great enthusiasm, as from 1January 1974 64 ; but events of a diverse nature led to the separation ofChile, effective on 30 October 1976 65

•

28. The Agreement ofCartagena, according to its Articles 1 and 2,pursues the following objectives : to promote balanced and harmonicdevelopment of member countries, with the purpose of obtaining anequitable distribution of the benefits derived from integration so as toreduce the differences existing between them , to accelerate theirgrowth by means of economic integration; to facilitate theirparticipation in the process of integration provided by the Treaty ofMontevideo and to establish favourable conditions for the transforma­tion of the Latin American Association of Free Trade in a commonmarket, all that with the aim of attaining a persistent improvement inthe standard of living of the inhabitants of the sub-region.

To attain those objectives the following procedures and mechanismswere provided : the harmonization of economic and social politics, andthe gradual approximation of national legislation in the relevantsubjects; the creation of a customs union by means of the totalliberation of reciprocal trade, in an automatic and irreversible manner,and the adoption of a common external tariff as the stage subsequent toa previous period of operation of a minimum common external tariff ;the joint programming of the investments in industry, in theagricultural and live stock sector and in the area of physical integration(in particular, energy, transport and cornmunications) ; canalization ofresources from inside and outside the sub-region to finance theinvestments necessary for the process of integration and a régime ofpreferential treatment for Bolivia and Ecuador 66.

The implementation of such procedures and mechanisms is to beobtained through two principal organs: the Commission on theAgreement of Cartagena, its maximum authority, of an eminentIypolitical nature and composed of a plenipotentiary representative fromeach of the governments of the member countries (Article 6) ; and the

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Board or Council, a technical organ composed of three members,nationals of any Latin American country, who must act whilst havingin mind the common interests and without requesting or acceptinginstructions from any government, national or international entities(Articles 13 and 14) 67.

29. The supreme organ expresses its will through the Decisions : inprincipIe, they should be in force and display immediate efficacy in themember countries, but practice is different, and they have to gothrough an autonomous procedure of incorporation in each one ofthem. Results are not satisfactory from an integrationist perspective,even though they are affirmed as unavoidable in the present state ofthe process of approximation among the countries of the sub-region 68.

On the other hand, the absence of a common jurisdictional organhas prevented the ingenious skill of sorne member countries resultingin success in their tolerant interpretation of the community rules 69.

The importance of an Andean court of justice was recognized from thevery beginning and constitutes one of the most real subjects in presenttimes, as it appears from the declarations of the Mandate 01Cartagena,endorsed by the Presidents of the States Party to the Sub­Regional Andean Agreement on 26 May 1979, at a meeting tocommemorate its tenth anniversary.

30. The broadness ofthe purposes ofthe member countries and thegrowing progress of the integration efforts, besides the greatdevelopment of the means of communication, necessarily led to aremarkable increase in juridical sub-regional relationships. Therefore,it becomes unavoidable to correct the negative effects of the legislativedifferences; and with that purpose the Agreement of Cartagenainsisted on the importance of the "rapprochement", of the "harrnoni­zation", of a "common régime" or of a "uniforrn régime" 70.

The different terms used do not tend to express differences ofconcept and they all point out the need of eliminating the legislativevariety in the member countries, when it appears, as an obstacle to thestrategy of integration: the unification of laws, therefore, does notconstitute an objective in itself, and is only conceived as an adequateprocedure to obtain the community ends 71.

Consequently, the uniformity to be achieved is pragmaticallydetermined in view of the concrete circumstances 72, as it issubstantiated by the conduct of the Commission of the Agreement ofCartagena : in sorne hypotheses complete uniformity was pretended ;in other cases it pursued the establishing of only a juridical structure,that allows local variations beyond minimum obligatory limitations ;

Conflict of Laws Conventions in Latin America 95

and in a sporadic way it has sanctioned rules tending to unify criteriafor the selection of the law applicable when the subject-matter appearsto be connected to various legislations which are simultaneously inforce.

Rules of the latter type constitute the specific subject of PrivateInternational Law , but the study of the hypotheses with foreignelements would remain an unfinished chapter if some substantiveprecepts were not considered, which are in force in certain areas ofparticular importance in the economic life of nations.

Now this double perspective imposes the examination of severaljuridical instruments approved by the Commission on the Agreementof Cartagena, even though not all of them have been ratified in eachone of the member countries, that contain either choice of law rules oruniform regulations, in order to solve problems with foreign elements.

A. Decision 24 : Common Regime for the Treatment ofForeign Capitaland on Trademarks, Patents, Licences and Royalties

31. Decision 24 pretended to give some guidelines as to thecontribution of foreign capital and foreign technology towards theeffective achievement of the objectives pursued with the economicintegration and to the fulfilment of the aims indicated in the nationalplans of development. This purpose brought about, as an inexorableconsequence, the requirement of previous authorization of any directforeign investment; and even though the possibility of commoncriteria imposed by the commission is accepted, in principle eachmember country was authorized to decide on the matter taking intoaccount the priorities of its development (Article 2). However, foreigninvestments were forbidden in areas adequately attended to by existingenterprises, in the opinion of the respective State, and also when theirobject was to acquire shares, participation or property rights ofnational investors, except to avoid the bankruptcy of the enterprise(Article 3). Nevertheless, it was permitted to authorize foreigninvestments in national or mixed enterprises by way of an increase ofcapital, if such qualification is not modified (Article 4).

On the other hand, Chapter Three of Decision 24 affirmed the rightof each member country to "reserve sectors of economic activities fornational, public or private enterprises and to decide if the participationof mixed enterprises should be admitted in these sectors" (Article 38).However, the competence of the Commission on the Agreement ofCartagena was accepted to pass future rulings on the matter and some

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areas were indicated in which new foreign investments would not beadmitted (Articles 40 to 43) ; even though different rules were possiblein the case where special circumstances existed in the opinion of therecipient country (Article 44).

The strengthening of the position of national investors was alsoattended to by taking into account past experience : existing foreignenterprises should be transformed into mixed or national if theywished to enjoy the advantages ofthe agreement; and for that purposethe minimum conditions of all transformation agreements wereindicated (Article 31). A similar duty was also imposed on new foreignenterprises, but with less rigorous conditions for Ecuador and Bolivia(Article 30).

The right operation of Decision 24 is subject to the commondefinition of certain basic concepts : direct foreign investment,reinvestment, foreign investor and national investor 13; and also acIear delimitation among diverse types ofenterprises : national, foreignand mixed. This latter task is carried out based on the percentage ofparticipation of the national investors, not only in the equity, but alsoin the administration of the enterprises : therefore, a foreign enterpriseis defined as the one

"incorporated or established in the receiving country and whosecapital is owned by national investors in a proportion of less than51 per cent. and, even though it may be higher, if it is notreflected in the technical, financial, administrative and commer­cial management of the enterprise".

Now then, in view of the foregoing definition it can be easilyunderstood that there is a need to control transferences of the capitalquotas, with unavoidable consequences in the internal law of themember countries : bearer shares were prohibited and in an expressmanner it was arranged that "the capital of the stock companies mustbe represented by nominative shares" (Article 45).

32. Decision 24 did not have as a purpose to eliminate legislativedifferences : its primary objective was to establish maximum limits tothe rights of mixed or foreign enterprises (Article 33) ; and it admittedthe possible co-existence of more severe rules, in _case they weredictated by any of the member countries in view of their owncircumstances. In this manner, the harmonization and the unificationpursued by means of the "common régime" were insufficient toeliininate problems arising out of the connection of a controversy withvarious laws simultaneously in force.

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Notwithstanding the growing importance of such hypotheses, inview of the unusual advance of technique and the remarkablerapprochement of countries in the last decades, the contributions ofDecision 24 in the field of Private International Law are very scarce.In fact, only the first paragraph of Artic1e 51 can be mentioned, whichprescribes :

"No c1auses shal1 be admitted in any instrument related toinvestments or transfer of technology, tending to take awaypossible conflicts or controversies from the national jurisdictionor competence of the receiving country, nor permitting thesubrogation by States of the rights and actions of their nationalinvestors."

The last phrase tries to avoid contingent diplomatic c1aims byforeign States and to prevent the repetition of such abad experiencethat caused great difficulties to countries of this hemispherethroughout the nineteenth century : of course, the query is stil1unanswered regarding the international efficacy of a rule established ina treaty, with the c1ear purpose ofparalyzing the right inherent in eachState to protect its nationals abroad, pursuant to principies stilladmitted by contemporaneous Public International Law.

The first paragraph of Artic1e 51 of Decision 24 also prohibitedexpressly the inc1usion in any instrument related to investments ortransfer of technology of c1auses "tending to take away possibleconflicts or controversies from the national jurisdiction or competenceof the receiving country", Such a rule does not bind third States, whowill decide according to their own principies the validity of anyagreement giving jurisdiction to their courts; but the prohibitionshould certainly be respected by the Parties to the CartagenaAgreement.

Therefore, the recipient State should not allow extraterritorialefficacy to judgments passed by foreign courts that had assumedjurisdiction on the basis of the agreement of the parties , and theprorogatio fori will not be a valid defence either whenever the matter ispending before its Judges, Besides, the law of the recipient State willalso decide as to the validity of a compromissory c1ause, even thoughany foreign arbitration remains prec1uded because of the prohibitionestablished in Article 51 of Decision 24.

The prohibition of the first paragraph of Artic1e 51 of Decision 24also extends to the possibility of agreements that remove eventualconflicts or controversies from the national "competence" of the

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recipient country ; and considering that the terms "jurisdiction" and"competence" have been used in the precept, it seems unavoidable toattribute to the latter the sense of "legislative competence". Therefore,so far, any choice by the parties remains excluded ; and in accordancewith criteria generally admitted in the present time, the law of therecipient country of the investment or of the technology is declaredapplicable,

33. Decision 24 did not pretend to solve all problems related to thetreatment of foreign capital, external credit contracts and contracts oflicence of use of imported technology and for the exploitation oftrademarks and patents. On the contrary, further developments invarious aspects silenced by the "common régime" were expresslyprovided for: besides the rules for sub-regional investors and forinvestments made by the Andean Corporation of Development, a newdecision to avoid double taxation among member countries, should beapproved before 30 November 1971, and likewise a model conventionon double taxation to be used between member countries and otherStates not part of the sub-region.

The latter ruling was fulfilled by Decision 40 (November 197I) : theprincipIe governing both instruments was to submit incomes of anynature, independentIy from the nationality or domicile of the persons,only to payment of taxes established by the law of the country wherethey had their source of origin (Article 4); and the tax on thepatrimony, ifit were the case, remained subject to the rulings ofthe lexrei sitae (Article 1T).

Now it is easily understood that the uniform application of theforegoing rules imposed the establishment of common criteria todetermine the situation ofcertain categories of goods : to attain such anaim it was arranged, on the one hand, that: "aeroplanes, vessels,buses and other transportation vehieles and the chattels used in theiroperation" were localized in the country where "their property isregistered" (Article 18 (a) ; and, on the other hand that "credits, sharesand other chattels" should be understood as located in the country ofthe domicile of the debtor or of the issuing enterprise, according to thecase (Article 18 (b).

34. The ends pursued by Decision 24 also imposed the control ofexternal credit contracts, subject in principIe to previous authorizationand later registration in the competent organism, to permit remittanceof the respective quotas of amortization of capital and of interest(Articles 14 and 16).

35. Besides, the balanced and harmonic development of the

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member countries led to the regulation of the contracts relative to theuse of patents and trademarks owned by foreigners ; and its frequentpractical links with acts of transference of technology brought aboutthe joint regulation of both types of instruments in Decision 24.

The "common régime" demanded the approval of the respectivecontracts by the national competent organism (Article 18): and theefforts were mainly directed to prohibiting certain restrictive clausesfrequently included to govern mercantile relations with industrializedcountries, pursuant to experience; and in Article 20 the followingwere declared unacceptable: the obligation of acquiring from adetermined source capital assets, intermediate products, other techno­logies or certain equipment; prohibitions or limitations to exporta­tions , establishment of prices of sale or retail of the detailedmanufactured products; payment of royalties for patents or trade­marks not used; the duty of selecting personnel pursuant to theinstructions of the holder of the patent or of the trademark; theprohibition to use competitors technologies, and those clauses thatoblige the transfer to the supplier of the inventions or improvementsobtained because of the use of the technology. The foregoingenumeration did not have a limitative nature, and in general terms any"other clause of equivalent effect" was prohibited.

36. Decision 24 had more ambitious purposes and pretended toestablish the foundations of a future harmonic regulation that waspartially developed by Decision 84, and approved in 1974 with theobject of establishing the Basis for a sub-regional technological policy.

On the other hand, Decision 24 also contemplated more intensiveadvances in the field of patents and trademarks: Decision 85, alsoapproved in 1974, contains a Regulation for the application ofthe ruleson industrial property.

Decision 85 provides for a uniform régime to favour the process ofeconomic integration and to eliminate sorne of the inconveniences ofabsolute territoriality recognized in industrial property rights : eventhough the principIe of the exclusiveness was accepted, it denied thepossibility of blocking "parallel importations" 74.

The supreme importance of the community purposes was alsoacknowledged by the Andean regulation in other directions, withinwhich the following can be recalled: the preferential treatment ofregistration granted to patents and marks that come from othermember countries 7S ; the possibility admitted as an exception is that ofconsidering fulfilled the duty of exploiting the patent or the trademarkwith the activity performed in any other member country 76 ; and the

100 G. Parra-Aranguren

affirmed need of effective co-operation in operative aspects of thesystems of industrial property 11.

B. Decision 46 : Uniform Régime for Multinational Enterprises andCommon Rules Applicable lo Sub-Regional Capital

37. The forecasts of the Cartagena Agreement became effective inthe sixth period of the special sessions of the commission, held from9 to 18 December 1971 ; and Decision 46, which contained the "uniformrégime for multinational enterprises and common rules applicable tosub-regional capital" was approved. The objectives pursued could beobtained by rneans of a uniform law to regulate all types of societies,both national and multinational. It was also possible to sanction rules

. on only the organization and functioning of multinational enterprises ;and the third alternative was to recognize a special status for societiescreated specifically to operate within the area of econornic integration.Besides, the practical implernentation of the method adopted could beobtained either by simultaneous legislative activity of each one of thernember States or through acceptance of the relevant rules by aninstrument of international efficacy.

Notwithstanding the example of the European Atomic EnergyCommittee (Euratom), the Cornmission on the Cartagena Agreernentconsidered inconvenient casuistic solutions without links to sornejuridical structure of a general nature ; and, in spite of the undeniablesimilarity of the laws of the American hernisphere 18, it also discardedthe idea of establishing common rules applicable to national andmultinational societies. The idea was considered as very ambitious,both because of the difficulties of its practical implementation andbecause it constituted a kind of renunciation by the member countriesof their right to rule over national societies, "which does not seemuseful nor possible at the present status of the process of Andeanintegration" 19.

Consequently, the means chosen was the enactment of commonrules only on basic aspects relative to the organization, operation andextinction of multinational enterprises : particular attention was givento those sectors

"in which there existed greater differences in the society legis­lations ofthe member countries and in those where, even thoughsimilar, it was necessary to consolidate the coincidence of the

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rules for the purpose of avoiding any possible unilateralmodification" 80.

In this manner the system of law of each one of the membercountries was maintained in force in order to solve all matters notharmonized by Decision 46.

The method fol1owed has unquestionab1e advantages : in the firstplace it adopts a common régime in sorne sectors of the law of thesocieties-and guarantees a rninimum ruling in others ; but it also avoidsfuture legislative divergent actions by the member countries onmatters regulated by Decision 46. On the other hand it constitutes agreat step forward to achieve the establishment of a uniform system torule both national and multinational societies.

38. Those features explain why Decision 46 does not give a directanswer to several important problems concerning multinationalenterprises in their every day operation; but in order to overcomedifficulties caused by differences of legislation in member countries itincluded sorne associated rules of Private International Law.

Now Decision 46 set the gravity centre of the multinationalenterprise in the place where the principal domicile is established ; andthe [ex domicilii was declared expressly to govern the constitution ofthe enterprise (Article 19) as wel1 as other aspects relative to itsoperation, that is, the responsibility of the Directors (Article 51) ; thedissolution and liquidation, when no special rules were provided in theby-laws (Article 59), and for solving any conflicts among shareholdersor between them and the enterprise (Article 60).

The [ex domicilii should also determine the limits within which thewill of the partners can operate to agree on the clauses of the contract(Article 18) ; and in view of this primary role it had also to decide as tothe legality and validity of the statutory rules. Of course the will of thepartners, once it has been valid1y expressed in the by-laws, should beattended to with preference ; in case of silence it is necessary to resortto community precepts (Article 24) and, in the last instance, the law ofthe principal domicile will decide al1 matters relating to the functioningof the enterprise, such as general shareholders' meetings, board ofdirectors report and balance sheets (Article 25 (al).

Due to the importance given to the principal domicile, Decision 46made it imperative not on1yfor its indication in the by-laws, but also todefine it accurately so as to avoid possible interpretative divergencies :to this end Article 38 prescribes that : Hit will be located in the membercountry in which it carries out its principal activities, pursuant to the

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terms ofthe respective project or programme", and "will be the seat ofthe board of directors and of the general management". ConsequentIy,the statutory domicile, the principal centre of exploitation and thesocial seat of the enterprise should always coincide, in a legitimatewish to overcome difficu1ties arising out oftheir different geographicalsituation when it is pretended to determine correctIy which is thejuridical gravity centre of the enterprise.

Besides the competence recognized in the law of the principaldomicile, Decision 46 declared the legislation of the member countryapplicable where the recognition of the juridical personality of themu1tinational enterprise is pretended, to decide on the requisites ofinscription or of publication which must be fulfilled: and also todetermine the extent of the juridical capacity which will be recognized(Article 23).

Article 43 of Decision 46 contemplates a concrete aspect of practicalimportance related to the attendance of shareholders to the meetings,and allows that they may be "duly represented, pursuant to therequisites demanded by the national legislations of the country inwhich the respective powers of attorney are issued". Therefore, itrequires written evidence and imposes compliance of formalitiesprescribed by the [ex loci actus : even though it keeps silent on thematter the rule is to be interpreted as an optional one, and theshareholder can also validly comply with the law of the principaldomicile of the enterprise.

Besides the foregoing problems relative to the internal operation,Decision 46, in paragraph (b) of Article 25, arranges that all aspects notcovered in the by-laws or by cornmon rules should be submitted to

"the legislation of the country where the juridical relationship isestablished or to the legislation of that country in which thejuridical acts of the mu1tinational enterprise were to becomeeffective, pursuant to the applicable rules of private internationallaw".

The proposed formula is certainly enigmatical, and its last phraseseems to abandon the matter to each of the member countries becausethe operation of the criteria established in the said paragraph (b)depends on the ruling of the "applicable rules of Private InternationalLaw". Now, it should be noticed that if the underlying idea was torender homage to the absolute freedom of the contracting States, itdoes not seem to make much sense to adopt a community formula, sovague and general ; because no great efforts are required to guess the

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practical difficulties which will arise when it is necessary to locate thecountry where the juridical relationship was established or where thejuridical acts executed by the enterprise should become effective.Consequently, on this concrete subject, Decision 46 does not representany progress towards an authentic harmonization of the legislativepolitics of the member countries, and only a future and more detailedanalysis ofthe problems involved will allow an enquiry into new waysto solve in a satisfactory manner those various queries set forth by theexternal operational life of multinational societies 81,

C. Decision 56 : International Transportation by Road

39. Sub-regional rules on the matter are not restricted to Decision56, which was approved in 1972; and in a separate instrument,marked as Annex 1, both the contract itself (Articles 16 to 63) andvarious of the problems which arise from international transportationby road in its operative aspects (Articles 1 to 14), customs (Articles 63to 75) and migratory problems (Artic1es 76 to 81) were regulated inmore detai1.

Decision 56 is applied in principle to commercial transportation byroad, "if vehic1es in their route cross, at least, one border between twomember countries, or when they start from or have as destination anyone of the member countries" ; and also is to be applied "with regardto the international transportation by road in transit", i.e., whenperformed through the territory of a Member Country, but whichconstitutes only a fraction of the total international transportationwhereas it starts from and ends out of same (Article 2).

However, Decision 56 only pretended to govern internationaltransportation of passengers "performed by carriers that have regularlines with pre-established itineraries and schedules, likewise thecontingent transportation performed by same" (Article 4); butexpressly inc1uded within its scope of operation the hypothesis inwhich "the vehic1e is transported, during part of its route, by othermeans of transportation" (Article 5). Besides Decision 56, the secondchapter of Annex 1 also provides for rules to govern the contract ofinternational transportation by road in its various types : of passengers(regular or contingent), of parcel post, of cargo and for accumulativeservices.

The Commission on the Agreement of Cartagena apparentlyconsidered it unnecessary to inc1ude rules of choice of law regardingthe contract of transportation ; and on1y considered aspects of public

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law in order to submit them to the lex loci. In fact, according to Article20 "movement of vehicles will take place according to the legaldispositions and regulations of the member countries through whoseterritories movement circulation is made, in particular with respect totechnical specifications, those of security, ofpolice and of health" ; andin accordance with Article 26, "the drivers will be subject to legaldispositions on transit of the member country in which they areoperating",

Nevertheless, Decision 56 pretended to solve problems referring tointernational jurisdiction of the courts ; and its Article 34 expresslydisposed: "civil actions based on the contract of internationaltransportation by road, ruled by this decision, will be presented in thecourts of the member country in the territory of which the contractwas entered into"; and pursuant to Article 31 : "the contract oftransportation is perfected by means of the issuance of the ticket, of theparcel post bill or of the bill of lading for the transportation ofpassengers, parcel post or cargo, respectively.

The silence of community rules to determine the law applicable tothe contract of international transportation by road, and the legislativevariety existing in the member countries may lead to a diverse solutionof controversies : every judge will take into account his own rules ofPrivate International Law with evident damage to internationalharmony which, it is affirmed, constitutes one of the main goals in alleconomic integration processes.

D. Decisions 113 and 116 : the Andean Instrument 01Social Securityand the Andean Instrument 01 Migration

40. The adequate carrying out ofthe objectives ofthe Agreement ofCartagena imposed the necessity for using certain organs not speciallyprovided in the constitutive pact; and it was thus expresslyacknowledged by Decision 22, approved on 31 December 1971, whenthe creation of a particular category of bodies, the Councils, wasarranged, with the purpose of "facilitating the harmonization of theeconomic and social politics and the co-ordination of developmentplans".

The new organs began taking care of the most urgent areas forprogressive sub-regional integration , and with the purpose ofexamining in detail the problems which arose from labour relations,the "council on social matters" was created by Decision 39 (July

Conflict 01 Laws Conventions in Latin America lOS

1971), following the suggestion made in the first extraordinarymeeting of the economic and social advisory committee.

Notwithstanding the creation of the council on social matters,effective progress in labour aspects is due 10 an autonomousmovement, even though closely linked to the Pact of Cartagena.

In fact, during the second meeting oflabour ministers ofthe AndeanGroup, held in Caracas in October 1973, the Simon RodriguezConvention created a new organism with the object of adopting thestrategic politics of the sub-region in labour matters 82 ; and as a resultof its efforts, the Commission on the Agreement of Cartagenaapproved on 17 February 1977 Decisions 113 and 116 that representthe "Andean Instrument of Social Security" and the "AndeanInstrument of Migration", respectively.

41. The Andean Instrumetu 01Social Securlty does not pretend tosolve all problems since it pursues limited objectives and rationemateriae only covers the general and special régimes, includingemployers' obligations, in the following branches of social security : (a)illness and maternity , (b) work accidents and professional illnesses ;and (e) invalidity, old age, death and funeral assistance (Article 2). Onthe other hand, and as to the persons covered, it is to be applied only tothose who are protected by the social security legislation in each one ofthe member countries, the components of their families and theirsurvivors (Article 3).

Within the foregoing limits and in the specific field of PrivateInternational Law, Article 6 of Decision 113 declared the legislation ofthe country applicable where services are rendered even when theworker has his residence established in another member State ; and onthis matter it should be noticed that point seven of the basis agreed inthe second meeting of labour ministers of the countries of the AndeanGroup also contains the following declaration : "or even if the employeror the domicile of the enterprise that employs them is in the territory ofother States". However, this sentence was eliminated in the final textapproved by the Commission on the Agreement of Cartagena.

Article 6 of the "Andean Instrument of Social Security" contem­plates the possibility of establishing some exceptions in a regulationwhich is to be enacted in the future, but limited to any one of thefollowing hypotheses : (a) workers destined to be sent temporarily tothe territory of another member country by the employer whocurrently employs them ; (b) workers with no fixed work place, suchas those in the enterprises of international transportation, salesmen ortravelling agents ; and (e) workers who perform their activities in an

106 G. Parra-Aranguren

enterprise or exploitation which is crossed by a frontier common tomember countries.

It should also be pointed out that, even within its scope, Decision113 did not pretend to regulate all matters : on the contrary, in anexpress manner it made formal reference to a future regulation whererequisites, limitations and other rules necessary for the application ofits dispositions would be established.

42. The objective of the Andean Instrument 01 Laboral Migrationwas to give an adequate answer to the dynamic mobilization of thelabour force within the sub-region, in particular with reference to theproblem of those who migrate and lack documentation ; but it did notexpressly arrange anything as to the law governing services renderedby migrant workers. However, it does not seem that reasonable doubtsmay exist regarding the competence of the lex loei executionis . inArticle 12, after forbidding discrimination based on sex, race, religionor nationality, it was provided that migrants

"will have identicallabour rights with the workers of the countryof immigration, inclusive those . provided for in collectivecontracts and will receive equal treatment with respect to theexercise of union rights, subject to the national legislation of thecountry of immigration".

Likewise, the law of the place of rendering service is to govern thenecessary age "that minor children of the migrant must reach to havethe right to work" (Article 13, paragraph 2) ; and the same lex loeiexecutionis also decides as to the obligation of the employer to "supplythe workers with the most convenient and comfortable means for theirtransportation, as well as occasional or temporary lodging" (Article20.

Finally, the competence acknowledged to the national law of thecountry of immigration ought to be recalled to decide what labourrights belong to workers with no documentation against theiremployer ; and thisjuridical status is not impaired either because oftheillegal presence of the worker in the country where services wererendered or because of his eventual repatriation (Article 31).

107

CHAPTER IV

THE FIRST INTER-AMERICAN SPECIALIZED CONFERENCEON PRIVATE INTERNATIONAL LAW (CIDIP-I)

43. The "Charter of the Organization of American States" wasendorsed on 30 April 1948 at the Ninth International AmericanConference, held in Bogotá after sorne deferments ; and in a solemnmanner the countries of this hemisphere constructed the "internationalorganization which they have developed to attain an order of peaceand of justice, promote their solidarity, strengthen their collaborationand defend their sovereignty, their territorial integrity and theirindependence".

Among the executive organs of the Organization of AmericanStates, the Inter-American Council of Jurists was appointed to

"act as a consultative body in juridical matters; promote thedevelopment and codification of Public International Law andPrivate International Law, and study the possibility of unifyingthe legislations of the different American countries as far as thisappears convenient" (Article 67).

Nevertheless, the periodical nature of its meetings led to attributingto the Inter-American Juridical Committee of Rio de Janeiro thefunctions of a permanent commission of the Inter-American Councilof Jurists (Article 68) : composed of nine jurists chosen by the Inter­American Conference, the highest authority of the Organization(Artícle 69), it would have the responsibility of "undertaking thepreparatory studies and works that may be entrusted to it by the Inter­American Council of Jurists, the Inter-American Conference, theConsultative Meeting of Ministers of Foreign Affairs or the Council ofthe Organization" ; likewise, it was also authorized to "carry out thoseof its own initiative which it considers convenient" (Article 70).

Notwithstanding the foregoing, and pursuant to Article 71 of theCharter of the Organization of American States, the "Inter-AmericanCouncil of Jurists and the Juridical Committee must procure the co­operation of the national commissions for the codification of theInternational Law, of the institutes of international law, of compara­tive jurisprudence and other specialized entities".

44. The Charter ofBogotá made express reference to development

108 G. Parra-Aranguren

and codification of Private International Law , this is of particularimportance due to the fact that after the diplomatic success obtained bythe signing of the Bustamante Code, the codification work of the Pan­American organs had been basically directed towards the field ofPublic International Law. Nevertheless, definite results were alsoobtained on certain matters of daily interest in relations betweenprivate persons ; and within this direction there ought to be recalledthe Protoeol on legal personality offoreign companies and the Protoeolon the Uniformiiy 01Powers 01Attorney which are to be used abroad,open to signature in Washington on 29 June 1936 and on 17 February1940, respectively.

The express reference to Private International Law was justifiedaccording to the Inter-American Juridical Committee, in a report ofSeptember 1964,

"because of various well-known events of the time in which theCharter was signed, such as: (a) the non-ratification of theBustamante Code by all of the countries of America , (b) thenumerous reservations, sorne of a general nature, made byseveral ratifying States; (e) the position of other countries ofAmerica, clearly favourable to the treaties of Montevideo, insubstitution of the Bustamante Code , (d) the attitude of theUnited States of America of maintaining its own systemregarding the conflict of laws 83".

45. In compliance of the categorical directíons of the Charter of theOrganization, a Report on the Plan for Development and Codification 01Public International Law and 01 Private International Law wasprepared on 6 September 1949. The Inter-American JuridicalCommittee recalled the pioneer work of America in this respect andmaintained the necessity of renewing efforts in the field of PrivateInternational Law, because of the clear specialization towards PublicInternational Law in the activities undertaken by the diverseorganisms of the United Nations and by its Commission ofInternational Law.

The convenience of harmonizing the Bustamante Code, the treatiesof Montevideo and the Restatement of the Law of Conflicts of Lawwas immediately suggested, because "even though of private origin ithas had prevailing influence on the jurisprudence of the United Statesof America". In this respect, the "report" pointed out that there are no"differences that cannot be overcome" and that the most advisableway would be to go ahead with the task, either by means of the

Conflict 01 Laws Conventions in Latín America 109

selection of a rule over the others, or else by perfectioning the criteriaalready admitted.

Within this orientation, the Inter-American Juridical Committeemade a new analysis of the nationality and of the domicile asdeterminant factors of the law applicable to the status and capacity ofphysical persons , and after pointing out the change of attitude ofBrazil in its legislative reform of 1942, notwithstanding havingpreviously sustained "with intransigency the formula of the nationallaw", proceeded to insist on the importance of the matter:

"Consequently, it should be examined if certain phenomenasuch as the existence of numerous foreign colonies in determinedcountries, and the large scale infiux of immigration after the lastWorld War, impose on sorne of our States a change of opinion. Itis a matter of such importance that, at least, it should be studied."

The Inter-American Juridical Committee also sustained theconvenience of making a distinction as to the methods of codificationin both branches: partial conventions in the field of PublicInternational Law ; and a general instrument on Prívate InternationalLaw. According to the Committee, in the subjects regulated by thelatter instrument "there exists interest from everybody in favour of theAgreement, because it is equally convenient to everyone to increaseinternational trade and to facilitate the activities of their subjects whoare abroad" 84.

46. The suggestions set forth in the report were taken up byresolution VII ofthe Inter-American Council of Jurists, held in Rio deJaneiro in 1950 85

• Consequently, the Inter-American JuridicalCommittee prepared a new document in 1951, in which itemphasizedthe need of investigating the true reasons "of a nature either legislative,political, or of public order that might have induced a state to ratify orabstain from ratifying a determined treaty, convention or internationalagreement", with the object of removing the obstacles for theacceptance·of the Bustamante Code and of eliminating existingreservations 86.

The new report circulated among the countries of the hemisphere ;and in view of the replies received 87, a second document waselaborated in August 1952, in which the possibility of revising theBustamante Code was sustained "to improve it on several points andwíth the object of approaching the uniformity of the rules of PrivateInternational Law in the different American countries". In this respectthe Inter-American Juridical Committee proposed the following

110 G. Parra-Aranguren

concrete solutions : the lex domiciltt, in matters relating to status andcapacity of persons, "to fit in with the social and juridical reality of thecontinent" ; the lex situs for succession on real property and the lexloci celebrationis to rule on the effects of contracts, It also suggestedadding the rules on cheques and negotiable instruments payable tobearer contained in the treaty on commercial law of Montevideo of1940, and co-ordinating the solutions of the treaty on internationalnavigation of Montevideo of 1940 with the Bustamante Code 88.

47. The Inter-American Council of Jurists, in its meeting at BuenosAires in 1953, decided to entrust to the Inter-American JuridicalCommittee the preparation of a comparative study between theBustamante Code, the treaties of Montevideo and the AmericanRestatement ; and according to resolution XII, "an appraisal should bemade of the systematic and technical differences that exist betweenthem and also an examination of the reserves that have beenformulated to the first of these instruments" 89.

The "comparative study" was concluded by the Colombian juristJosé Joaquín Caicedo Castilla in October 1953 90 ; and after it wasmade known to the governments, in view of the commentaries ofEcuador and of the United States of America 91, the Inter-AmericanCouncil of Jurists resolved in Santiago de Chile in 1959 to entrust tothe Inter-American Juridical Committee the presentation of a newdocument on the matter 92.

Previously antecedent to the new work was a report prepared in1961 by the department of juridical matters of the Pan-AmericanUnion, where the suggestion of convoking a specialized conferencewas formulated for the first time: "the matter is highly technical" andthe timing ofthe sessions ofthe Inter-American Council of Jurists doesnot allow for a detailed examination of such an important matter 93.

The Inter-American Juridical Committee took up the initiative in itsopinion dated 8 September 1971. It also proposed in a definite mannerthe acceptance of the lex domicilii to regulate the status and capacity ofpersons, and formally requested the Governments of Bolivia, CostaRica, Chile, Ecuador and El Salvador to withdraw their generalreservations to the Bustamante Code 94.

48. The alternative formula was crystallized in resolution 11,approved in El Salvador by the Inter-American Council of Jurists in1965: it was resolved to suggest to the general assembly of theOrganization a convocation of a specialized conference, to be held in1967, for the purpose of revising the Bustamante Code in itspreliminary title and in its books on civil law and international

Confltct of Laws Conventions in Latín America 111

mercantile 1aw, taking into account the progress of science and thesolutions of the treaties of Montevideo. Likewise, a new book oninternationa1 labour law should be added 95.

The Inter-American Juridical Committee, in its report of 18 August1966, insisted on the importance of the task of codification of PrivateInternational Law, with special emphasis on the requirements imposedby the progressive economic integration 96 ; this attitude was reiteratedin another document dated 29 August 1968, in which the convocationof the specialized conference was again urged 97.

Nevertheless, the efforts directed towards the amendment of theCharter ofthe Organization of American States, concluded in February1967, did not allow an immediate advance 98 ; and the convocation ofthe specialized conference was on1y resolved by the general assemb1yin San José de Costa Rica on 23 April 1971 (AG/RES. 48 (1-0/71)).

The agenda definitely approved by the permanent councilabandoned the original idea of carrying out a complete revision of theBustamante Code and included on1y sorne matters which wereconsidered to be of particular importance in the mutual relations 99,

because this procedure was considered the best "road that, in a slowbut sure manner, could lead to a true unification" lOO. Notwithstandingits disgreement with the method the Inter-American JuridicalCommittee prepared the re1evant projects wíth unbelievab1e speed, inthe summer of 1973, thanks to the previous efforts ofDr. José JoaquínCaicedo Castilla 101.

49. The First Inter-American Specialized Conference on PrivateInternational Law held its inaugural session in the city of Panama on14 January 1975 with the attendance of all the States Members of theOrganization of American States, except Barbados, Bolivia andHaiti 102 ; and when its activities were finished, on 30 January 1975, ithad approved two resolutions and six treaties, as follows .

(l ) Inter-American Convention on Conflict of Laws concerning Billsof Exchange, Promissory Notes and Invoices.

(2) Inter-American Convention on Conflict of Laws concerningCheques.

(3) Inter-American Convention on International Commercia1 Arbi-trations.

(4) Inter-American Convention on Letters Rogatory.(5) Inter-American Convention on Taking of Evidence Abroad.(6) Inter-American Convention on the Legal Régime of Powers of

Attorney to be Used Abroad.

112 G. Parra-Aranguren

50. The Inter-American Convention on Conjlict ofLaws concerningBills of Exchange, Promissory Notes and Invoices allowed a generalexamination of the objectives pursued in the conference and of themethods which could be used to solve the problems: severalrepresentatives suggested that it would be convenient to change thedenomination "conflict of laws", because the convention could not berestricted to choice of law rules, but it had also to inc1ude norms oninternational competence and uniform rules of a substantive nature.Notwithstanding the failure of the initiative, the needs of daily lifeimposed themselves over the strict requirements of formal logic : inthe last instance, the instruments approved actually outdid the severelimitations of the indirect rules, the sole purpose of which werereduced to selecting the law applicable and, possibly only as anhomage to stubborness, the phrase "conflict of laws" was maintainedin the title not only of the Treaty on BilIs of Exchange, PromissoryNotes and Invoices but also in the Convention concerning cheques.

In the words of Professor Haroldo T. Valladáo, the conventionrepresents "one great step ahead" 103; and its main feature is theimportance given to the lex loei actus to govern the various obligationsarising from a bilI of exchange. This uniform treatment avoids theapplication of different laws, helps mercantile traffic and guaranteesthe juridical certainty of the instrument with undeniable advantagesfor the international trade..

From this perspective the most important innovation is thecompetence recognized in the lex loci actus to govern matters ofcapacity to enter into an obligation by means of a bilI of exchange : thissolution avoids the irritant polemic between the law of nationality andthe law of domicile, which tragic consequences constituted one of thecauses for the practical failure of the Bustamante Code 104. Besides,such a position reílects principIes accepted in the Restatement of theLaw on Conflicts of Law, as was pointed out by Dr. Jorge E. Illueca,spokesman of the First Commission of the Conference lOS; and, eventhough it has been insisted on in the exceptional nature of the solution,it evidently leaves open the query regarding the conduct of futureAmerican meetings on Private International Law to determine theapplicable law for status and capacity of the persons 106.

The demands of trade and the wish to facilitate mercantileintercourse explain the solution in favore negotii, consecrated in analternative manner with the lex loei actus by Artic1e 1 of theconvention, that provides in its second paragraph .

Confllct 01 Laws Conventions in Latin America 113

"Nevertheless, should the obligation be contracted by a personwho is not capable under the aforesaid law, the incapacity maynot be relied upon in the territory of any other State Party to thisConvention if the obligation is valid under the law of that State."

Notwithstanding the ambiguity ofthe last phrase, the reference onlyendeavours to contemplate a State "in the territory of which it mayproduce effects" 107 ; and in this respect, Dr. Jorge E. Illueca sets thefollowing example:

"a 20-year old person endorses a bill of exchange in a State inwhich he would be of legal age at 21, but if this bill has to be paidin another State, where legal age is acquired at 18, the obligationwould be valid in this latter State, as this latter law would govern,that is, the more favourable one".

The second article of the convention provides for the operation ofthe principIe locus regit actum to decide on the formal validity of thedrawing, endorsement, aval, intervention or protest of a bill ofexchange : it is an imperative rule that recognizes the autonomy of thediverse exchange obligations, and constitutes a definite application of apolicy of a general nature, conceived with the purpose of validatingacts executed abroad.

The [ex loci actus is also applicable to "all the obligations arisingfrom a bill of exchange" (Article 3). This solution avoids qualificationdifficulties because it is not necessary to distinguish between formaland substantive requirements , and in the words of Didier OperttiBadán, it attempts to point out that with the endorsement "anautonomous act of the exchange course is produced" 108. Besides, theprinciple of the independence of the obligations is also respectedbecause the possibility of submitting each one of them to a differentlaw is admitted.

The importance acknowledged to the [ex loci actus and the wish ofguaranteeing international harmony of solutions explains the neces­sary accuracy of the concepts, and with that purpose in mind it wasstipulated in Article 5 :

"For the purpose of this convention, should a bill of exchangenot specify the place in which the obligation was entered into, theobligation shall be governed by the law of the place where the billis payable, and should that place not be specified, by the law ofthe place where it was drawn."

However, nothing was provided to attend the hypothesis of

114 G. Parra-Aranguren

discrepancy between locus verus and the locus scriptus, even thoughthe prevailing of the latter is justified by the wish of guaranteeingjuridical security and in order to favour the circulation of theinstrument : similar reasons explain the restriction of the operation ofthe lex executionis to cases in which the place of payment is indicatedin the text of the bill of exchange.

The trend in favore negotii, already accepted in matters of capacityto enter into an obligation by means of a bill of exchange, found newand important consecration in Artiele 4 which provided that .

"Should one or more of the obligations contracted in a bill ofexchange be invalid under the law applicable according to thepreceding artieles, this invalidity shall not affect such otherobligations as are valid under the law of the place where theywere contracted."

In this manner the principle of the independence of the exchangeobligations is fully projected in the international field : the possibleinvalidity of any of them does not affect the others, since each one isregulated by its own law. This solution represents an important stepforward if compared with Artiele 24 of the Montevideo Treaty onInternational Commercial Law of 1940, that only overcomes cases offormal invalidity , as it also extends its beneficial influence tohypotheses of nullity for substantive reasons, or by incapacity of theexchange debtor. Also, the convention avoids useless interpretativecontroversies in deciding when the irregularity is formal orsubstantive: a problem not easy to solve on certain occasions due tothe elose links between form and substance in the specific field of thebill of exchange.

Pursuant to Artiele 6 of the convention "the procedures and time­limits for acceptance, payment and protest, shall be governed by thelaw of the place where such acts are or should be performed" ; and"the law of the State in which the bill of exchange is payable shalldetermine the measures to be taken in case of robbery, theft, forgery,loss, destruction or of the deterioration of the instrument to the pointof becoming useless" (Article 7) 109. Those principles are commonlyaccepted and had been expressly acknowledged in their basic featuresby the American codifications of the past.

The convention of Panama did not limit itself to solving problems ofchoice of law , and on the initiative of the delegate of Uruguay,Dr. Edison Gonzalez Lapeyre, a rule on international competence wasinc1uded.

Conflict of Laws Conventions in Latin America 115

Pursuant to Article 8 the plaintiff has the right to choose betweenthe "courts of the State Party where the obligation is to be honoured,or the ones of the State Party where the defendant is domiciled" : it is afacultas alternativa creditoris with actual projections in the field of theinternational efficacy of the foreign judgments.

The energetic attitude of the Uruguayan delegation made it possibleto overcome the obstacles made by the representatives of Brazil, Chile,and Mexico : on the one hand the different nature of the article waspointed out, since it did not pretend to select the applicable law, but toestablish directIy the criteria to determine the competent courts ; andon the other, emphasis was made of the need of carrying out acomparative study with those conventions that may be in force dealingnot only wíth international jurisdiction, but also with recognition andenforcement of foreign judgments.

The rules on bills of exchange were declared applicable topromissory notes, by Article 9 of the convention ; nothing was saidabout "drafts, vouchers or notes", as they were considered instrumentsalready outdone in the mercantile traffic. Nevertheless, theyexpresslycovered "the invoices, when in the legislation of the State Party inwhich they have been issued they are considered as negotiableinstruments" 110, to satisfy the insistent request of the Central­American countries, which had originally pretended, without success,to extend the application of the rules of the convention to all negotiabledocuments.

51. The Inter-American Convention on Conflicts ofLaws concerningCheques represents a compromise among divergent criteria sustainedat the conference when it was discussed on the provision that extendedto cheques the norms declared applicable to bills of exchange. In fact,Lic. José Luis Siqueiros (Mexico) proposed an autonomous treatmentof the matter and its postponement to a later occasion : notwithstan­ding the support of the initiative by other delegates it was decided toapprove a group of minimum rules to attend the most importantproblems of everyday life 111 ; and at the same time, the first resolutionapproved by the conference recommended to entrust to the Inter­American Juridical Committee the study and elaboration, as a prioritymatter, "of a draft convention on conflicts of laws concerning chequesof international circulation and a draft on a uniform law on thematter" 112.

Article 1 of the convention declared the provisions of the Inter­American Convention on Conflicts of Laws concerning bills ofExchange, Promissory Notes and Invoices applicable to cheques; but,

116 G. Parra-Aranguren

in accordance with solutions accepted in Artic1e 33 of the Treaty ofMontevideo in 1940 on Internationa1 Commercia1 Law, the 1aw of theState where the cheque must be paid was competent to determine:

"(a) the time-1imit for presentation ; (b) whether a cheque can beaccepted, crossed, certified or confirmed, and the effects of suchacts ; (e) the rights of the holder with regard to the provisions offunds and the nature ofsuch rights ; (d)the rights ofthe drawer torevoke the cheque or oppose payment ; (e) the necessity of protestor of other equivalent acts for the preservation of rights againstthe endorser, the drawer or other obligated parties ; and (j) suchother matters as relate to the form of the cheque 113".

The objectives pursued by the convention on cheques are extreme1y1imited: the competence acknow1edged to the lex loci executioniscontributes to the assurance of the validity of the document,guarantees the creditor in an adequate manner and facilitatesmercantil e intercourse , but the transitory nature of the rules isexpressed through the need of a more detailed analysis of the matterand the necessity to provide for new types of cheques irnposed by thedevelopment of trade (travellers cheques, Latin American cheques,Central American cheques): such a task was undertaken in thepreparatory works of the Second Specialized Inter-AmericanConference, that ended on 8 May 1979, with an "Inter-AmericanConvention on Conflicts of Laws concerning Cheques"; nevertheless,the new document basically reproduced the solutions already acceptedin the Panama convention and the -preparation of uniform rules oncheques was suspended whilst awaiting the works initiated within thescope of the United Nations 114.

52. The Inter-American Convention on International CommercialArbitration constitutes the homage paid to the efforts of sorne repre­sentatives who insisted in culminating a task, roots of which goback to the first meeting ofthe Inter-American Council of Jurists, heldin Rio de Janeiro in 1950 ; and in a hasty manner, "racing the clock"as was said by Ambassador Francisco Bertrand Galindo from ElSalvador, its articles were accepted without greater study and analysisofthe problems involved : according to Dr. Tatiana de Maekelt "due tothe repercussions of the institution and to its importance incommercial relations, it would have deserved more careful treatmentof the contents of the provisions approved" lIS.

Artic1e 1 of the convention does not distinguish between thecompromissory clause and the compromise itse1f, in order to avoid

Conflict 01 Laws Conventions in Latin America 117

theoretical and practical discussions. It limits itself to declaring valid"an agreement in which the parties undertake to submit to arbitraldecision any differences that may arise or have arisen between themwith respect to a commercial transaction". Nevertheless, theagreement shall be set forth in writing : either in an instrument signedby the parties, or in the form of an exchange of letters, telegrams ortelex communications.

Parties were declared autonomous to regulate the appointment ofarbitrators and to agree on the rules of the proceedings. However, itwas permitted to delegate the appointment to a third party "whether anatural or juridical person" ; the possibility of naming foreigners asarbitrators was expressly accepted notwithstanding the insistentcriticisms of the Colombian representative ; and, in a subsidiary way,the procedural rules of the Inter-American Commission of Commer­cial Arbitration were declared applicable 116.

Article 4 ofthe convention assimilated arbitral decisions not subjectto appeal under the applicable law to final judicial judgments : the lexfori will stipulate the conditions for their recognition and enforcementwith due respect to international treaties.

The hastiness of the work in the conference is demonstrated byArticles 5 and 6: they reproduce the régime provided in theConvention on Recognition and Enforcement of Foreign Awards,adopted under the sponsorship of the U nited Nations in New York in1958 ; and after having eliminated a precept on the causes of nullity ofthe award, the rules on the matter were incorporated without furtherexamination or comment by proposal of the representative of Ecuador,Or. Rafael Borja Peña 117.

53. The Inter-American Convention on Letters Rogatory tries topromote international judicial assistance for the performance ofprocedural acts of a merely formal nature, such as notifications,service of process, summons or subpcenas abroad (Article 2 (a)) ; and"the taking of evidence and the obtaining of information abroad,unless a reservation is made in this respect" (Article 2 (b)).Nevertheless, wishing to avoid controversies, it expressly declares"acts involving measures of compulsion" out of its scope of operation(Article 3).

It is unjustifiable to have included "the taking of evidence and theobtaining of information abroad" in the Inter-American Conventionon Letters Rogatory, since the matter was expressly dealt with in aseparate treaty, where its special particularities were attended to ; andthe possible ratification of both conventions constitutes an unnecessary

118 G. Parra-Aranguren

source of difficulties. It is a situation which has arisen because of thehastiness and the absence of a co-ordinated analysis of the diverseprojects at the first specialized conference.

Ratione materiae the convention only ineludes civil or mercantilematters, even though it admits the possibility of extending its norms"to the execution of letters rogatory in criminal, laboral, contentious­administrative matters, arbitrations and proceedings or other matterswithin the jurisdiction of special courts" ; but the decision must benotified to the general secretariat of the Organization of AmericanStates (Article 16).

On the other hand, the petition for judicial collaboration must bemade by a jurisdictional authority of one of the States Parties ; theterminology used endeavours to broaden the co-operation of officerswith authority to decide controversies with the validity of finaladjudication, even though they do not belong to the judicial system,but the qualification of the authority as jurisdictional is to be decidedaccording to the law of the requiring States 118.

The application must be made by means of a "letter rogatory", asynonymous expression with the Spanish term "exhorto", pursuantto Artiele 1 ; and its transmission to the authority to which it isaddressed can be done in- different ways : by the interested partiesthemselves ; by judicial means ; by diplomatic officers or diplomaticagents ; or by the central authority appointed by the contracting States(Article 4).

The formal requirements to be complied with by letters rogatory arestipulated in Artiele 5 : they must be duly translated into the officiallanguage of the State of destination (letter (b) and in principle alldocuments have to be legalized (letter (a) 119. However, legalizationwas not necessary, because it was considered implicit when thetransmission took place through consular or diplomatic channels, orby means of the central authority (Article 6); and, in an optionalmanner, in cases of courts in border areas. Likewise, legalizatíon wasassumed correct if it had been performed by a competent consularofficer or diplomatic agent of the requested State (Article 5 (a).

Letters rogatory may indicate the person responsible for theexpenses and the identity of the respective attorney-in-fact (Artiele12); but must be accompanied by an authenticated copy of thecomplaint with its supporting documents and of other relevant exhibitsor resolutions, with the purpose of handing them to the person onwhom process, summons, or subpoena is being served (Artiele 8). Theconvention also requires that letters rogatory should identify the

Conflict 01 Laws Conventions in Latin America 119

requiring authority and indicate not only the time-lirnits allowed theperson affected to act upon the request, but also the warning of theconsequence of failure to do so ; and where appropriate, informationon the existence and address ofthe court-appointed defence counsel orof competent legal-aid societies in the State of origino This requirementtries to protect those persons economically weak in order to ensuretheir effectivé defence abroad.

The eventual lack of jurisdiction of the requested authority must becorrected ex offlcio by the immediate transmission of "the documentsand antecedents of the case to the competent judicial authorities of itsState" (Article 11, paragraph 2) ; and the execution of letters rogatorywill be subject to the [ex fori. Nevertheless, Article 10 admits thefulfillment of particular or additional forms when they are notcontrary to the law of the State of destination and were expresslyrequired ; this provision, that goes back to the Hague Convention of1896, has a very scarce practical importance in cases of notificationsand other acts of mere procedure.

Costs and other expenses caused by the execution of letters rogatorywill be for the account of the interested parties ; but the required Statemay render the judicial assistance required even though no indicationis made as to the person to be held responsible for it (Article 12).

In compliance with the letters rogatory, the requested authority willhave jurisdiction to take cognizance of and to decide the matters thatarise, but only if they are related to the execution (Article 11) 120 ; but itis not allowed to enquire into the competence of the requiringauthority. Therefore it was necessary to stipulate expressly that the co­operation provided does not imply any acknowledgement of such anature, "nor a commitment to recognize the validity of the judgment itmay render or to execute it" (Article 9).

The Inter-American convention also anticipated the possibility ofeasier forms of judicial assistance : on the one hand agreements amongcountries belonging to systems of economical integration werecontemplated (Article 14) ; and on the other, it was expressly stipulatedthat the convention would not restrict

"any provisions regarding letters rogatory in bilateral ormultilateral agreements that may have been signed or may besigned in the future by the States Parties, or preclude thecontinuation of more favourable practices in this regard that maybe followed by these States" (Article 15).

Within the same direction the execution of procedural acts through

120 G. Parra-Aranguren

consular offices or diplomatic agents in the State "where they areaccredited provided this is not contrary to the laws of same" was alsoallowed ; but it was expressly forbidden that they might "perform anyacts involving measures of compu1sion" (Article 13) 121.

54. The Inter-Ameriean Convention on the Taking 01 EvideneeAbroad rules on a subject already ineluded in the "Inter-AmericanConvention on Letters Rogatory" : the separate treatment of the mattershould have resulted in its exelusion from the 1ast-mentionedinstrument, but the contrary attitude of the conference, has beenexplained by Dr. Edison Gonzalez Lapeyre by the circumstance that"the States that may be parties to the two conventions could .bedifferent" ; and in his opinion the second treaty has the unquestionablemerit of "giving to al1 that relates to the taking of evidence or obtaininginformation abroad a more complete and harmonious régime" m.

The convention only regulates procedural aspects of the taking ofevidence abroad and does not contain any provision on itsadmissibility or appreciation, neither does it determine to whom theonus probandi corresponds. Consequently, the similarity with thesubjects dealt with at the "Inter-American Convention on LettersRogatory" and the wish to facilitate its future ratification by thesigning States, explain the repetition of the rules on the fol1owingmatters: (a) terminology used (Article 1); (b) the matters ineludedwithin its sphere of application, that is, those of a mercantile or civilnature (Article 2), with a possible extension to criminal, laboral andcontentious-administrative cases, as wel1 as arbitration and otherniatters within the jurisdiction of special courts (Article 15); (e) theexecution of acts requested (Articles 5, 6 and 7) ; with the particularityof having insisted on the competence of the [ex fori to decide as wel1 asto the possible measures of compulsion (Article 3, last paragrah) ; (d)the statement that the judicial assistance provided does not imp1y anycompromise either of acknowledging the competence of the requiringauthority or of recognizing the future extraterritorial efficacy of thefinal judgment (Artiele 8) ; and (e) the formal requirements that have tobe met (Articles 10 and 13).

Although the convention did not expressly allow the possibility ofspecial rules for frontier regions, there is no doubt as to theirpreferential application. Neither were eventual agreements contem­plated between countries belonging to systems of economic integration ;but simpler methods of assistance were aimed at through futureconventions and it was arranged that the continuation of morefavourable practices should be fol1owed in this regard by the States

Conflict 01 Laws Conventions in Latin America 121

Party , and in particular, no restriction was to be understood as tothose rules already in force that admit the intervention of consularofficers for the taking of evidence or for obtaining information (Ar­ticle 14). The method of transmission of letters rogatory presents sorneparticularities in the Inter-American Convention oh the Taking ofEvidence Abroad since the co-operation of private persons was notpermitted : even when it was sustained that this exclusion constituted"a guarantee for the impartial and responsible action of the court" 123,

it still represents an unjustified solution in view of the fact that theobjective pursued is to facilitate judicial assistance. Likewise, itsdefence by Professor Joseph M. Sweeney has surprising results, takinginto consideration the actual practice in the United States ofAmerica 124.

The Inter-American Convention on the Taking of Evidence Abroadregulates in detail the information that must be provided with therequest for assistance, and its Article 4 requires :

"O) A clear and precise statement of the purpose of theevidence requested. (2) Copies of the documents and decisionsthat serve as the basis and justification of the letter rogatory, aswell as such interrogatories and documents as may be needed forits execution. (3) Names and addresses of the parties to theproceeding, as well as of witnesses, expert witnesses, and otherpersons involved and all information needed for the taking of theevidence. (4) A summary report on the proceeding and the factsgiving rise to it, if needed for the taking of evidence. (5) A clearand precise statement of such special requirements or proceduresas may be requested by the authority of the State of origin for thetaking of evidence."

The convention also presents its own characteristics with respect tothe circumstances which exempt the State of destination from the dutyof rendering judicial assistance, and among them are sorne specificclauses of public policy, the beneficial infiuence of which appearsadmitted, in general terms, by Article 16. In fact, pursuant toparagraph 1 of Article 2, the procedure requested will be fulfilledwhen "it is not opposed to legal provisions of the State of destinationthat expressly forbid it'' ; and the execution may also be refused whenthe purpose of a letter rogatory "is the taking of evidence prior tojudicial proceedings", or "retrial discovery of documents", as theprocedure is known in common law countries (Article 9).

These precepts try to overcome difficulties which are considered in

122 G. Parra-Aranguren

sorne cases as of special practical importance ; but in no way do theyattempt to "cage" public policy, because its intervention will alwaystake place when necessary to protect the basic and fundamentalprincipIes of the legislation of the requested State.

The convention also presents other characteristic features , thesecond paragraph of Artiele 2 subjects the execution of the letterrogatory to the fact that the interested party places "at the disposal ofthe State of destination the financial and other means necessary tosecure compliance with the request" ; and Artiele 12 contemplates thecase of refusal of the witness to answer: in an express manner itacknowledges the validity of the impediment, exception or the duty torefuse the testimony, when it is accepted under the law of therequested State or under the law of the State of origin if it has beenspecified in the letters rogatory or when it was confirmed by therequesting authority.

55. The Inter-American Convention on the Legal Régime ofPowers of Attorney to Be Used Abroad attempts to solve practicalproblems which are very important in daily life, even though it doesnot pretend to regulate either the relations between the principal andthe attorney-in-fact or the validity of the transaction carried out by theattorney-in-fact with a third party 125; and it only regulates theexecution of powers of attorney in one of the States Party, but withoutbeing limited to judicial instruments. Within this scope, theconvention ineludes not only conflict of laws rules, but also uniformprovisions of a substantive nature, with the purpose of guaranteeingthe seriousness of the power of attorney and in order to protect theinterests of the principal and of third parties 126.

In the strict fie1d of conflicts of law, the convention attributesprimary competence to the lex loci executionis : the law of the Statewhere the power of attorney is used determines the requirements withrespect to publicity (Article 4), the effects and use ofthe power (Article5) and the necessity of its legalization (Article 8) or of its translation(Article 9). Likewise, it regulates forms and solemnities, even thoughin this respect it is sufficient to observe the lex loci actus. However, thelaw of the State in which the power of attorney is to be used shallgovern when it imposes certain forms as essential to its validity ; and ifthey are unknown in the place where the instrument is executed,compliance with Artiele 7 of the convention will be enough.

According to Artiele I I the validity of the power of attorney is notconditioned by the acceptance of the agent in the instrument, since it

Conflict 01 Laws Conventions in Latin Ameriea 123

shall result from its use notwithstanding the contrary ruling of the lexloei actus or of the lex loei executionis (Article 11).

The convention also regulates the granting of powers of attorneythrough substantive rules that mainly indicate the certifications to bemade by the officer before whom the document is executed ; and itsArticle 6 requires that express evidence of the following must bedeposited:

"(a) the identity of the principal as well as his statement as to hisnationality, age, domicile and marital status; (b) the authority ofthe principal to give power of attorney on behalf of anothernatural person ; (e) the legal existence of the juridical person onwhose behalf the power of attorney is given ; (d) the power of theprincipal to represent the juridical person and his authority togrant the power of attorney on its behalf'.

The certifications prescribed by Article 6 impose difficult decisionson the capacity of the granting party, on the existence of the juridicalperson and on the authority of the principal to act on its behalf.However, the convention does not provide the necessary rules to solvethese problems and the only possibility open is to resort to the normsof Private International Law of each State Party, with obvious damageto the pursued goal of obtaining international harmony of solutions.

The convention also anticipated the possibility that in the place ofthe granting there should be no officer authorized for stating theforegoing certifications: in this respect, particular consideration wasgiven to the system in the United States which does not have anythingsimilar to the public deed required as essential in other countries ofthehemisphere for the formal validity of the powers of attorney toperform certain activities , and to solve such situations Article 7prescribes compliance with the following formalities:

"(a) the power of attorney shall include a sworn statement by theprincipal, or an affirmation that he will tell the truth, about theitems specified in Article 6 (a); (b) legalized copies or otherevidence with respect to the items specified in paragraphs (b), (e)and (d) of the same ArticIe shall be appended to the power ofattorney ; (e) the signature of the principal shall be authenticated ;(d)such other requirements shall be observed as may be stipulatedin the law under which the power of attorney is given."

ArticIe 7 is a typical example of the simultaneous utilization of theindirect technique and of the uniform method to solve problems

124 G. Parra-Aranguren

created by the presence of a foreign element : its first three paragraphsprovide for certain substantive formalities, but their observance is notenough since the formal validity of the document also requirescompliance with the formal requirements of the lex loci actus.

Finally, the convention acknowledged preferential application oftheagreements already endorsed or that were agreed in the future, eitherbilaterally or multilaterally, by the States Party, and the morefavourable practices on the matter that may be in force: in particular,express mention was made of the Protocol on Uniformity ofPowers ofAttorney which Are to Be Used Abroad or the Washington Protocolof 1940 : notwithstanding its reduced number of ratifications it has tobe taken into consideration in daily life, at least, because it is in force inthe United States of America.

56. There exist certain clauses common to all six conventionsendorsed in Panama during the First Inter-American SpecializedConference on Private International Law . on the one hand, thegeneral reserve of public polícy , and on the other the régimestipulated for signature, ratification, accession, entering into force,denunciation, deposit of the instruments and information to be given,

57. The clauses of public policy gave origin to the irritatingaltercations and emotional excesses which reached the extreme bydeclaring it disturbing for progress of the international codification 127. ~

Now, it would be naive to discuss the need of a safety valve toovercome the inconveniences of the indirect method for solvingproblems of conflict of laws : it is not possible to accept a priori theunrestricted application of a foreign law, the rules of which areunknown, and any agreement to the contrary is juridical suicide.

From this perspective public policy constitutes not only an in­strument of defence, but also an indispensable mechanism for the co­existence of opposed systems : the terminological controversies on the .most adequate formula for its consecration are only semanticdiscussions, and in the best of cases it only leads to a discreet text, withthe purpose of avoiding abuses from national officers in theirpermanent desire to apply their own legislation whenever they have tosolve cases presenting foreign elements.

A matter of a totally different nature is the convenience of includinga public policy clause in treaties of uniform law : the reply must benegative whereas in such a hypothesis the régime proposed does notpresent any mystery, there is no Sprung ins Dunkein, and each countrycan determine beforehand if these rules are contrary or not to the basicand fundamental principIes of their own juridical system. Now, when

Conflict of Laws Conventions in Latín America 125

the examination results favourably and the agreement is ratified by thecontracting countries, they must be fully complied with (pacta suntservan da) ; and the eventual protection of their particular interests mayalways be obtained through formal denunciation in the terms providedfor in the treaty.

58. The so-called "diplomatic clauses" declare the six conventionsopen to the signature of the States Members of the Organisation ofAmerican States, and arrange their entering into force on the thirtiethday following the date of deposit of the second instrument ofratification with the general secretariat: the same term applies tosubsequent ratifications of any member country and to the eventualaccession of any other State. Likewise, conventions shall remain inforce indefinitely, even when it is impossible to denounce them, andare effective after one year from the date of deposit of the instrumentof denunciation.

By suggestion of the observer of Canada, and with support in theConvention of Vienna on the Law of Treaties (23 May 1969), the"federal clause" was included : in this manner countries with two ormore territorial units, in which different systems of law apply, couldrestrict the scope of operation of the conventions to one or various ofthe respective units through a declaration at the moment of signature,ratification or accession, as the case may be ; and it was also permittedto modify a declaration already deposited 128.

The original instrument of the conventions is drawn up in fourlanguages (Spanish, English, French and Portuguese), all of which areequally authentic ; and it shall be deposited with the general secretariatof the Organization of American States, the organism in charge oftransmitting to the States Parties the pertinent information : signatures,deposits of documents of ratification, accessions and denunciations,likewise, the reservations that might exist, and any other item providedfor in the text of each of the conventions.

The critical examination of the "diplomatic clauses" is favourable :it shows an evident wish to facilitate the conventions becomingeffective and of broadening as much as possible the scope of theiroperation. Nevertheless the silence regarding the possibility, and therégime of the reservations, results in a surprise, even though its legalbasis has. been admitted in an incidental manner 129; and apronouncement on the efficacy of the new treaties on the previousagreements, in particular with respect to those subscribed inMontevideo and to the Bustamante Code would have also beenconvenient.

126 G. Parra-Aranguren

59. Even though not all the items of the original agenda wereexamined the importance of the First Inter-American SpecializedConference on Private International Law cannot be denied : it had theunquestionable merit of perrnitting a direct exchange of opinionsbetween specialists of very high scientific qualifications; and, asexperience demonstrates, such personal contact has constituted avigorous encouragement towards progress of codifying PrivateInternational Law. From this perspective the words of the Ambassa­dor ofEI Salvador, Dr. Francisco Betrand Galindo, at the adjournmentof the conference were prophetic, when he said:

"the accomplishment has been great ... what still has to be doneis a lot and very important. The former must fill the participantswith pride, the latter commits them not to feel discouraged and tocontinue the task which has already been started 130".

The evaluation of the results of the First Inter-American SpecializedConference on Private International Law was one of the items on theagenda of the "Second Course of International Law", which was heldin July and August 1975, under the sponsorship of the Inter­American Juridical Committee. Well-known lecturers, Drs. JoséJoaquín Caicedo Castilla, Haroldo T. Valladáo and Didier OperttiBadán gave substantial information to those scholars attending thecourse in Rio de Janeiro on the new instruments approved, with thesincere purpose of solving certain problems arising out of the mutualintercourse among persons beyond the frontiers ; and the subsequentpublication of such important commentaries has allowed a broaddiffusion of the agreements endorsed in Panama. Such a lower taskfound efficacious support in the Nineteenth Conference of the Inter­American Federation of Attorneys which met in Cartagena,Colombia, because its second resolution, of 3 October 1975, formallyurged the members to "promote in their respective countries theproceedings that should be necessary to place before the governmentsin order that they sign or, in its case, ratify the six conventions" : at thesame time, the resolution pointed out

"that the prompt ratification of the conventions referred to willconstitute an important step towards progress in the relationshipsbetween American nations and that accession of other Stateswould facilitate the relationships between American and non­American countries" 131.

A new pronouncement on this matter was made at the First

Conflict of Laws Conventions in Latin America 127

Congress of Private Internationa1 Law of the Andean Area, he1d inQuito in March 1976 ; and three months 1ater, the General Assemb1yof the Organization of American States, in its sixth ordinary period ofsessions, approved reso1ution AG/RES 236 (VI-0-76) with theexclusive purpose of requesting governments of member States that,pursuant to their constitutiona1 procedures, they sign and, in its case,ratify, if they had not done so, the six conventions approved in theFirst Inter-American Specialized Conference on Private InternationalLaw (Panama, 1975) 132.

60. The foregoing suggestions have been well received : Costa Rica,Honduras, Panama, Paraguay and Uruguay ratified the six conven­tions, effective on 16 January 1976, and except for the one concerningInternational Commercial Arbitration, they all are also in force inChile, Ecuador and Peru. Mexico only abstained from ratifying theconvention on confl.ict of laws concerning cheques and the one on thelegal régime of powers of attorney to be used abroad. It is alsonecessary to bear in mind that the Dominican Republic ratified theAgreement on Bilis of Exchange, Promissory Notes and Invoices, andthe one relative to powers of attorney to be used abroad j and that inColombia, the Convention on International Commercial Arbitration isin force. This is the stand of the ratifications up to 22 March 1979.

Consequently the work carried out in Panama in 1975 has gonebeyond the mere theoreticallevel to become conventiona11aw in forcein 1arge sectors of the hernisphere : and if the efforts of the UnitedStates of America to overcome collective1y sorne inconveniences of theconventions referring to 1etters rogatory and on the taking of evidenceabroad succeed, it will certainly be vigorous progress towards theeffective codification of American Private Internationa1 Law.

128

CHAPTER V

THE SECOND INTER-AMERICAN SPECIALIZED CONFERENCEON PRIVATE INTERNATlONAL LAW (CIDIP-II)

61. The work of the Inter-American Specialized Conference onPrivate International Law was made known to the Inter-AmericanJuridical Committee by both its President, Dr. Reynaldo Galindo Pohland by Dr. José Joaquín Caicedo Castilla, who attended the conferenceas the representatives specificalIy appointed for that purpose 133;

and in view of the commending concepts of both jurists, in the reportsubmitted on 14 March 1975 to the general meeting of the Organ­ization of American States, the Inter-American Juridica! Cornmit­tee adhered with enthusiasm to the proposal of"convoking a secondconference to continue the task that had been begun : "in thismanner, one of the objectives of the Inter-American system is toadvance in its execution and improvement, and the General Assemblywill be once more the propellant of the great Inter-Americaninitíatives" 134,

Such antecedents explain the resolutíon of 19 May 1975, approvedat the sixth full meeting of the General Assembly (AG1187 V-075)after qualífying the conventíons already endorsed as "a great successfor the Inter-Arnerican system", and taking into consideratíon the offerofUruguay, ít arranged the convocation ofthe Second Inter-AmericanSpecíalized Conference on Prívate Internatíonal Law (CIDIP-U), Forthat purpose the Permanent Councíl was authorized to set theconveníent date and to prepare the drafts of the Agenda andRegulatíon, with the object of submíttíng them to consideration by theMember States : for its part, the Inter-American Juridical Committeeshould prepare "the project of conventions as well as the respectiveexplanations of reasons that were necessary"; and the generalsecretariat was entrusted with the elaboration of the technical andinformation documents in order to facilitate the work of the secondspecialized conference 13S.

The decision of the General Assembly was well received by theInter-Arnerican Federation of Lawyers . and at its nineteenthconference held in Cartagena, Colombia, four months later, itapproved the third resolution which contained sorne suggestions to beincluded in the agenda by the Permanent Council : it also proposed to

Conflict of Laws Conventions in Latin America 129

entrust the preparatory studies to specialists in Private InternationalLaw, with the purpose of obtaining an efficacious and speedydevelopment in the work of the Inter-American Juridical Commit­tee 136.

The Permanent Council approved the preliminary agenda draftfor the Second Inter-American Specialized Conference on PrivateInternational Law (CIDIP-II) by means ofresolution CPI 168 (183-75),on 3 December 1975, and the following matters were provisionallyinc1uded:

"1. Recognition and enforcement of foreign judicial judgments.2. Execution of preventive measures decreed in judicial

proceedings on civil and commercial matters.3. Evidence in foreign law and information on juridical rules in

force in the American countries.4. Conflicts of laws and uniform laws on cheques in interna­

tional circulation, to which resolution I of CIDIP-I refers.5. Updating of rules in force in Latin America on conflicts of

laws in the area of companies and enterprises.6. International sale of goods.7. International waterborne transportation, with special refe­

rence to bills of lading.8. General rules of Private International Law 137."

62. In its sessions of January-February 1976, once the main basiswas established, the Inter-American Juridical Committee appointed byacc1amation Dr. José Joaquín Caicedo Castilla to elaborate thenecessary draft conventions to cover each of the points of theprovisional agenda 138; and the speed in the compliance of such acommitment allowed the initiation of the pertinent studies in the nextregular period of sessions (July-August 1976), by means of a workinggroup, constituted for that purpose in view of the imminent lack of aquorum required for its normal operation 139.

In this manner the Inter-American Juridical Committee was able toadopt the first agreements during the sessions of January-February1977 : it approved a Resolution on the International Sale of Goodstending to paralyze the works on the matter ; and maintained in thesame terms the Inter-American Draft Convention on Contracts ofCarriage by Sea and by Land, with Special Reference to Bilis ofLading. The existing draft conventions on Mercantile Corporations andon Recognition and Enforcement of Foreign Judgments and Awardswere approved with some amendments; also adopted were the

130 G. Parra-Aranguren

projects of conventions on Proof of Foreign Law and Compliance ofPreventive Measures Decreed in Juridical Processes on Civil andCommercial Matters ; and it was decided to continue the examinationof the remaining items of the provisional agenda through a workinggroup because of the already foreseeable breach of the indispensablequorum 140.

In its report of 14 March 1977 to the General Assembly of theOrganization of American States the Inter-American JuridicalCommittee emphasized the importance of the drafts already preparedfor the second specialized conference, because they facilitate the task"and up to a certain point assure its success", and likewise it added thefoIlowing commentaries:

"On the other hand, it is the moment to give a vigorous anddecisive impulse to the task of codification of International Lawin America. The simple fact that the Bustamante Code only ruleswithout reserve in ten States evidences that the Codification hasto be renewed in order to update it with the needs of time, withpresent tendencies of the scientific thought, with contempora­neous requirements and problems related to the countries of theAmerican Continent. Also, determination of the law applicablewilI serve to improve and consolidate relations between Nations.Because it would eliminate controversies which could otherwisecause serious disagreements among different countries I41."

In its foIlowing regular period of sessions (July-August 1977), theInter-American Juridical Committee approved a Resolution on Conjlictof Laws and Uniform Law on Cheques in International Circulation,tending to paralyze further efforts "until the concIusions arrived at onthis matter in other international forums are known", and an Inter­American Draft Convention on Conjlict ofLaws concerning Cheques.Likewise it was decided to continue the examination of the subject"General Rules of Private International Law" in a working group,constituted for that purpose in view of the breach of the quorumindispensable for the normal operation of the organism 142.

The Inter-American Draft Convention on General Rules of PrivateInternational Law was approved by the Inter-American JuridicalCommittee on 24 January 1978 foIlowing the ideas held byDr. Haroldo T. Valladáo. Consequently it excIuded both the legalregulation of domicile and the rules on the existence and capacity ofpersons to satisfy methodological perspectives considered undeniable ;but the importance of the subjects omitted imposed the preparation of

Confltct 01 Laws Conventions in Latin America 131

autonomous projects, a task which was entrusted to the W orkingGroup created 10 overcome the future breach of the necessaryquorum 143.

In its following regular period (July-August 1978) the Inter­American Juridical Committee approved the Inter-American DraftConvention on Status and Capacity in Private International Law andthe Inter-American Draft Convention on Domicile in Private Internatio­nal Law 144.

Once the preparatory works of the Inter-American JuridicalCommittee were conc1uded it was possible to advance with greathopes towards the second specialized conference, the inauguration ofwhich had been set for 23 April 1979 by the Permanent Council oftheOrganization of American States 145. The General Secretary of theOrganization pursued an identical purpose in his note of 4 August1978 addressed to the missions and delegations ofthe Member States :apart from providing sufficient information and requesting the list ofthe respective delegations, he forrnally requested "the commentaries orremarks that they wished to set forth regarding the draft conventionsapproved by the Inter-American Juridical Committee on the subjectsof the conference, likewise any commentaries, projects or documentsthat they may be willing to submit in relation to the said subjects",These statements were repeated on 21 December 1978 146.

The preliminary draft agenda was broadened in the last instancebecause of the inc1usion of two new items proposed by the PermanentMission of the United States of America : an Additional ProtocolanLetters Rogatory with the purpose of adopting a uniform format for allrequests of judicial assistance and of clearly stipulating the obligationto appoint the central authority provided for by the PanamaConvention. Likewise, it attempted to limit the requested translation toonly a summary of the c1aim and of the documents attached to thesame, even though all documents should be attached unabridged in theoriginal language of the requiring State ; and it also tried to authorizethe direct forwarding of letters rogatory by the litigants to the centralauthority of the requested State, without the need of any legalization orauthentication.

The other proposition made by the United States of America was anAdditional Protocolan the Taking 01Evidence Abroad in order to adopta uniform format for all requests for judicial assistance and toattend to the following concrete matters: (a) c1arification of types ofapplications to take evidence, prior to any judicial proceedings, aspermitted by the system of the Common Law, that are acceptable for

132 G. Parra-Aranguren

other countries ; (b) setting a special method to perform specific peti­tions made by the requiring State ; (e) accepting the possibility to takeevidence, before a consul or a commissioner; and (d) sorne otherpoints, such as measures to compel reluctant witnesses to appear, andthe gratuity for the compliance with the request. Nevertheless, thePermanent Mission of the United States acknowledged that a detailedstudy of the subject by a group of experts could be advisable oncethe Second Inter-American Specialized Conference on Private Inter­national Law ended 147.

The proposals made were approved on 24 January 1979 by thePermanent Council of the Organization of American States, with aprevious favourable report from the Commission of Meetings andOrganisms 148; and consequentIy, resolution CP/RES~265 (369179)approved a new text of the draft agenda, which consisted of12 points 149.

63. The Second Inter-American Specialized Conference on PrivateInternational Law met from 23 April to 8 May 1979 : its sessions wereheld at the Municipal Intendency of the city of Montevideo, with theattendance of the representatives of all Members of the Organization ofAmerican States, with the exception of Barbados, Bolivia, Grenada,Jamaica and Suriname , delegates of other countries and of diverseinternational organizations were also present.

During the morning of23 April1979 the preliminary session oftheconference met : after appointing Dr. Manuel Adolfo Vieira asPresident, it approved the resolution of the Inter-American JuridicalCommittee which resolved "to abstain for the time being fromstudying the matter relative to the international sale of goods", in viewof the works underway of the Commission of the United Nations onInternational Mercantile Law (UNCITRAL) ; and immediately there­after created two commissions of work : the first was entrusted withthe examination of the points on the agenda relative to internationalcivil procedural law and the remaining matters were assigned to thesecond commission ISO. In this way the preparatory proceedingsindispensable to the progress of future works were complied with,after the solemn inaugural session held in the afternoon of the sameday, 23 April 1979 1SI.

64. The first commission ofthe Second Inter-American SpecializedConference on Private International Law met for the first time at11 o'clock, the morning of 24 April 1979, in the Congress Roomof the Municipal Intendency . immediately chosen were its Presi­dent, Vice-President and Rapporteur; the persons appointed were :

Conflict 01 Laws Conventions in Latin America 133

Dr. Haroldo Texeira Valladáo (Brazíl), Arthur Von Mehren (UnitedStates of Arnerica) and Ricardo Abarca Landero (Mexico), respec­tively. Right after that there was an exchange of criteria on the prio­rity of the subjects assigned to the first commission and, in thismanner, its initial works were concluded 152.

65. The next day, 25 April 1979, the first commission began ageneral examination of the draft protocol to the Inter-AmericanConvention on Letters Rogatory and of the draft protocol to the Inter­American Convention on the Taking of Evidence Abroad; afterhaving heard the points of view of the participants, it was decided tocreate a working group consisting of delegates from Brazil, Colombia,Ecuador, the United States of America, Haiti and Uruguay; eventhough, pursuant to the regulations of the conference, all Members ofthe Organization had the right to attend the respective meetings, asseveral of them actually did.

The working group held seven sessions before approving the Draft01 a Protocol to the Inter-American Convention on Letters Rogatory,based on the existing documents and on the proposals formulatedduring the meetings. As was expressed by Lic. Ricardo AbarcaLandero in his report, there existed a fundamental coincidence amongthe representatives of the different States, notwithstanding the variouscriteria in aspects of detail and regarding the techniques for solving theproblems. However, the consensus necessary for the success of thetasks was obtained 1S3.

The efforts relative to point (b) of the agenda did not have the sameresults, and the work group lirnited itself to the approval of a Draft 01Resolution on a Project 01an Additional Protocol to the Inter-AmericanConvention on the Taking 01 Evidence Abroad: in view of theimportance of the matter and of the existing differences between thesystem of proof accepted by the Common Law and those in force in themajority of the Latin American States the designation of a Group ofExperts was recommended ; and after the latter concluded its relevantstudies, if the respective conclusions justified it, the subject should beincluded on the agenda of a future Inter-American SpecializedConference on Private International Law. The draft of the resolutiondid not give rise to any further discussion and was approved in the lastsession of the first commission, held at midday on 7 May 1979 154.

66. The examination of the Draft Protocol to the Inter-AmericanConvention on Letters Rogatory was started during the afternoon of2 May 1979 after sorne very important comments on the matter whichwere set forth in a very clear manner by Professor Georges A. L. Droz,

134 G. Parra-Aranguren

the observer representing the Conference of the Hague on PrivateInternational Law ; but in view of the divergences existing betweenthe text handed out and the latest revisions made in the workinggroup, it was decided to adjourn activities until the following day 155.

The draft protocol was analysed thoroughly and in detail during theafternoon sessions of 3 and 4 May 1979 156, the basic outlines proposedby the working group were maintained : its scope of operation rationemateriae was limited to acts of mere procedure, without incIuding thetaking of evidence abroad (ArticIe 1); the duty of indicating theCentral Authority provided by the Convention in the moment ofratifying the Protocol (Article 2) was expressly imposed and threeprinted forms which contained formal requirements of necessaryfulfi1ment were approved : Annex A was a format of a letter rogatory ;Annex B contained the information that should be provided to theother party, and Annex C was a sample of a certificate for verifyingthe performance of the required proceedings.

With the purpose of avoiding excessive expense, the protocol onlyrequired the translation of the copy of the complaint or of the requestwhich initiated the respective procedure ; even though all the otherdocumentation and proceedings must be annexed in the originallanguage, but without the necessity of additional legalization if theycarry the seal of the requiring organism (Article 4).

The protocol also establishes the principle of payment for judicialassistance, but authorizes the requested country to cIaim payment ofthe proceedings that the interested parties are supposed to pay for,pursuant to its internal law : these may indicate a person responsiblefor the expenses in the place of performance or for remitting bycheque or other adequate means the respective amounts (Article 5) ;and to determine the necessary sums, the parties will take into accountthe decIaration made in that respect by each State when ratifying theprotocol, and which may be modified any time (Article 6).

Likewise, in order to avoid difficult problems regarding itsoperation, it was expressly arranged by ArticIe 8 that :

"The present protocol is open to signature and is subject toratification and to accession of the Member States of theOrganization of American States which have signed the Inter­American Convention on Letters Requisitorial or Rogatoryendorsed in Panama on 30 January 1975, or which ratify oraccede to it."

67. The general comments on the subject : Recognition and

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Enforcement ofForeign Judicial Judgments, were initiated during themorning of 26 April 1979 157

, and concluded the day after, 27 April1979 158: at this latter opportunitythe creation of a working group wasdecided upon, with representatives of Argentina, Brazil, Colombia, theUnited States of America, Mexico, Panama, Peru and Venezuela.

After long discussions a minimum consensus could be obtained oncertain basic policies and the draft of the working group was submittedto the first commission in the afternoon of 5 May 1979 : due to thepersistent insistence of Dr. Haroldo Texeira Valladáo (Brazil) the title"Extraterritorial Efficacy", was used because in his understanding theterminology "Recognition and Enforcement" was improper, but asmay be easily noticed, it is an unimportant semantic matter as theefficacy of a sentence can be displayed either in the aspect ofrecognition or in that of its execution.

The determination of the scope of operation ratione materiae of thetreaty caused greater difficulties: in view of the statements of therepresentative of Mexico (Ricardo Abarca Landero), based onconstitutional precepts of his country, the Plenipotentiary forVenezuela (Gonzalo Parra-Aranguren) suggested the formula whichwas definitively approved; and he proposed the following text .

"The present convention will be applied to the sentences andarbitral awards passed in civil, commercial or labour processes inone of the States parties, unless that in the moment of itsratification an express reservation is made limiting it to moneyjudgments",

In this manner it was endeavoured to attend the juridical reality of thehemisphere, in view of the categorical attitude of Mexico, before itsimpossibility of ratifying a more extensive scope of operation : andnotwithstanding sorne criticism, explainable because of the afflictioncaused by the evident limitation in the efficacy of the instrument, itmust be acknowledged that the solution adopted has the unquestion­able advantage of preventing the approval of theoretical agreementsonly "for the study of law professors",

The inclusion of arbitral awards, notwithstanding the approval inPan ama of the "ínter-American Convention on International Corn­mercial Arbitration" is explained by the need for regulating theextraterritorial efficacy of decisions passed in civil matters byarbitrators ; and pursuant to Article 1 of the convention, its rules couldalso be extended to other resolutions which conclude the proceedings(transactions, abandonment or acceptance of the complaint) and to

136 G. Parra-A ranguren

decisions pronounced by other authorities with jurisdictional func­tions, and to penal judgments as they refer to the indemnity of civildamages originating from the offence.

The regulation of the international jurisdiction of the sentencingState, as a necessary requirement for the efficacy of the foreigndecisions, was the object of lengthy considerations by the workinggroup and by the first comrnission : the delegate for Venezuela(Gonzalo Parra-Aranguren) had insisted, since the beginning of theconference, on the importance of a separate instrument to deal withthe subject-matter of jurisdiction as a whole , but in view of thecomplexity of the problem and the small amount of time available,other alternatives were considered. On the one hand, it was proposedto accept the rules of the State of origin provided that the requestingcountry did not claim exclusive jurisdiction : the lack of consensus onthis point of view led to the consideration of the possibility ofincluding in the same convention or in an additional protocol sornebasic rules to decide on international jurisdiction of the sentencingcountry. This initiative was not successful either, and in view of thefailure of the diverse atternpts, the policy of abandoning the matter tothe law of the State where the decision should be effective was finallyaccepted in a transitory manner.

The additional conditions established by the convention reproducecriteria commonly accepted in the American hemisphere . thenotification or the summons of the defendant "in a legal form, in amanner substantially equivalent to that accepted by the law of theState" where it must be effective (Article 2 (e); and in an expressmanner it imposed the respect to the right "of defence of the parties"(Article 2 (j). AIso, the foreign decision must be executory or allow theplea of res judieata in the State of origin (Article 2 (g) and should notoppose openly "the principIes and laws of public policy of the State inwhich recognition or enforcement is requested" (Article 2 (h); butnothing was arranged as to the control of the law applied in thejudgments, in the words of the reporter of the first commission(Ricardo Abarca Landero), "because, apart from being a very complexmatter, it could imply a revision of substance of the foreignsentence" 159.

The convention also establishes the formal requirements to becomplied with : all documents must be authenticated, duly translatedand legalized (Article 2 (a), (b), (e); and Article 3 indicates theinstruments of verification that indispensably must be annexed: acopy ofthe respective decision and ofthe necessary exhibits to accredit

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that it is executory and that the right of defence of the parties has beenrespected, in particular of the rules on citation or summons of thedefendant.

Likewise, the convention expressly admits the possibility of partialefficacy of the foreign act, by request of the interested party (Arti­ele 4) ; it prescribes the automatic recognition of a deelaration in formapauperis, granted in the country of origin (Article 5) and submits to thelex fori all procedural requirements necessary to the efficacy of foreignacts (Article 6).

68. During the morning of 28 April 1979 the first commissionbegan the examination of the subject: Execution of the preventivemeasures decreed in judicial proceedings on civil and cornmercia!ma tters , and after the relevant comments of a general nature, aworking group was constituted with representatives from Argentina,Brazil, Colombia, Chile, Haiti, Mexico, Panama, the United States ofAmerica, Uruguay and Venezuela 160.

The efforts of the working group ledo to the preparation of aninstrument on the basis of the draft prepared by the Inter-AmericanJuridical Committee and the pressure of time only allowed a briefexamination during the afternoon of 5 May 1979 after a short reportfrom the Plenipotentiary of Colombia, Dr. Marco Gerardo MonroyCabra 161.

The juridical broadness ofthe term "preventive measures" imposeda necessary definition : pursuant to Artiele 1 it ineludes "all procedureor means that tend to guarantee the results or effects of a present orfuture procedure, with regard to the security of persons or of assets(property) or of obligations to give, to do or not to do a specific thing".The convention also mentions by way of example sorne proceedingsincluded within its scope of operation (Article 2); and in an expressmanner it declares as equivalent expressions "preventive measures","measures of security" and "measures of guarantee".

The execution of preventive measures abroad assumes that theyhave been decreed by a competent country in the international sphere(Article 2), but it is restricted to "proceedings of civil, commercial,laboral nature and in penal proceedings with regards to the civilcompensation" (Article l ). However, it must be borne in mind thateach State party has, at the moment of ratifying the convention, theright to limit its application "only to one or sorne of the preventivemeasures provided in it" (Article 1).

The necessary line dividing the attributions of the requiring Stateand of the requested country was established by the convention in a

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quite simple manner : on the one hand, it belongs to the judges of theplace of the principal process to decide, according to its laws,whether preventive measures could be decreed (Article 3), and alsoon the possible opposition of third parties, provided that these do notrefer to property or real rights over the goods attached (Article 5).

On the other hand, the judges ofthe place of execution determine, inaccordance with its laws, the guarantees to be furnished, both by therequesting party and by the party affected by the preventive measure(Article 3); the possible modification of the same and the eventualsanctions for malicious or abusive requests (Article 4) ; the suspensionofpreventive measures, in case oftheir absolute illegality or because ofdiminution of the guarantee constituted by the requesting party(Article 4) ; and they were also authorized to limit, within a strictIyterritorial scope, the effects of the measures on custody of minors, butonly until final judgment is passed (Article 9). Likewise, it wasexpressly arranged that execution of preventive measures does notimply any compromise for allowing extraterritorial efficacy to thefuture sentence that rnay be rendered in the foreign process (Arti­cIe 6).

The convention also admits the possibility of preventive measureswhen execution of a foreign judgment is requested (Article 7) ; and todecree any conservatory or emergency measures, "that have aterritorial nature, and which purpose is to guarantee the result of apending or contingent Iitigation" (Article 10) ; in both hypotheses it isnecessary to fulfil the prescriptions of the law of the place where theyare requested.

In a not very orthodox way, the convention incorporates sornequalities given to consular officers in case of the death of a nationaland if no relatives or presumptive heirs exist, or when they wereunable "to administer their property as consequence of a penalprocess" (Article 9) ; and it also established procedural rules for therequest of execution of preventive measures, very similar to thosecontained in recent Inter-American Conventions on InternationalJudicial Assistance (Articles 13 to 18).

Although theoretically it is possible to recognize a certain structuralharmony in the convention, only data obtained from future experiencewill allow a decision on its effective practical importance : it is not truethat it is more advantageous to deal with preventive measures in amanner independent from the régime of extraterritorial efficacy offoreign sentences ; and the autonomy in the regulation is affected bythe necessary intervention of the State where they must be fulfilled as

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recognized in the convention, to the extent of authorizing it to demandsufficient guarantees from the requesting party. Consequently, theattempted international judicial assistance is weakened in a way thatcannot be determined in advance, and because ofsuch uncertainty, theVenezuelan proposal, tending towards the ratification of the Conven­tion on Maintenance Obligations Abroad, approved in New York on20 June 1956, results in being intelligible, whereas it regulates inworldwide scope one of the most important hypotheses of fulfil­ment of preventive measures.

69. The general comments on the subject . Evidence on ForeignLaw and Information on Juridical Rules in Force in the AmericanCountries were made on the morning of 30 April 1979 ; and on thatsame occasion a working group was created, composed of represen­tatives from Argentina, Brazil, Chile, Mexico, Panama, Peru, theUnited States of America and Venezuela 162.

Its first task was to delimit the scope of the draft, and wisely itabstained from dealing with the procedural treatment of foreign lawwhich is a subject pertaining to the Convention on General Rules ofPrivate International Law : it only remains incomprehensible that thetitle was maintained, notwithstanding the vigorous opposition of theVenezuelan representative (Gonzalo Parra-Aranguren), whereas theword "evidence" leads to disagreeable memories of the c1assicdoctrine; and since the criteria accepted in the last instance was c1earlytowards imposing on the judge the obligation of applying ex officioforeign law.

In principle, the convention established the duty of reciprocalcollaboration among the States parties to determine the text, force,sense and legal understanding of the law of each one of them (Articles1 and 2) ; and judicial assistance should be rendered through any "ofthe suitable means of evidence provided both by the law of therequiring State and of the requested State" , setting as an example,documents, statements by experts and other information that may begiven by the State of origin (Article 3).

Requests for information must be drawn up in general termswithout attempting to obtain the solution of the concrete controversy,and the procedural aspects of its procedure were regulated pursuant tothe principles established in the recent Inter-American Convention onInternational Judicial Assistance (Articles 5, 7, 8 and 9) : the obligationof providing a timely reply, was also imposed on the requested State,even though without any responsibility because it "would not even be

140 G. Parra-Aranguren

obliged to enforce the law according to the contents of the replyprovided" (Article 6).

The information received is not binding on the requesting State : it isa simple tool to help the judge in his obligatory task of investigating thecontents of foreign law (Article 6). However, in practice, it wilI haveunquestionable importance and the wish of facilitating actual know­ledge of foreign law explains the possibility, accepted by Article 4,of extending the rules of the convention to requests made byauthorities other than judicial ones.

An analogous régirne, even though certainly of a more elementarynature, was provided for both in the treaties of Montevideo and in theBustamante Code, but results from experience are not verysatisfactory. Therefore the practical success of the new rules is quitedoubtful ; and such worry for the future explains the Venezuelanproposal tending to encourage the efforts of the Legal Department ofthe general secretariat of the Organization of American States, when itdecided to establish a "Cornputarized Data Bank", with the purpose ofproviding Member States "in a fast and safe manner, juridicalinformation of the different American countries and of theOrganization itself' (CIDIP-I1/Res. IX, 79).

70. The second commission of the Second Specialized Inter­American Conference on Private International Law met for the firsttime at 3.30 p.m. on 24 April 1979, in the Congress Room of theMunicipal Intendency : Dr. Gonzalo Parra-Aranguren (Venezuela),Werner Goldschmidt Lange (Argentina) and Didier Opertti Badán(Uruguay) were elected unanimously as President, Vice President andRapporteur, respectively. Immediately afterwards, it was proceeded toestablish the priority of treatment of the subjects assigned to thecommission and after an exchange of ideas, the proposal of thePresident obtained consensus in the sense of initiating the work withmaritime transportation, and continuing with the study of cheques andthe rules on mercantile corporations 163.

7 l. The examination ofthe problems presented by the InternationalWaterborne Transportation, with Special Reference to Bilis 01 Ladingwas referred to a working group, composed of the representativesfrom Argentina, Costa Rica, Chile, Ecuador, Mexico, Peru andUruguay 164; the respective draft resolution was considered during theafternoon of the following day, 25 April 1979, and an arduousexchange of criticism took place, to the extent that a vote ofacknowledgement to the Inter-American Juridical Committee wasproposed, even though it had maintained its project of 1973 not-

Conflict 01 Laws Conventions in Latín America 141

withstanding the important achievements obtained after that date witha worldwide scope. At last, the resolution of the working group wasapproved, in order to request from

"the General Assembly of the Organization of American Statesthe inclusion, with priority, on the Agenda of a future Inter­American Specialized Conference on Private International Law,the following subjects: international waterborne transportationand transportation by road of goods and persons" 165.

72. That same day, 24 April 1979, the second commission initiatedthe study of the subject relative to Conflict of laws concerning chequesoftnternational circulation, preceded by a brilliant exposition made bythe representative of Chile (Rafael Eyzaguirre Echeverría) on thedifferences existing between the Convention of Panama and the Inter­American Juridical Committee Draft.

On that same occasion the antagonistic criteria of the ArgentineDelegation was evidenced, based on a Law-Decree of 1963 of thatcountry, which subjects the cheque, in all its aspects, to the law ofdomicile of the bank drawn on ; and Dr. Werner Goldschmidt Langepointed out the differences between bills of exchange and cheques:

"the latter is actually a payment order, whilst the bill of exchangecomprises a series of different obligations: that is why theplurality of the laws applicable to the bill of exchange, highlyjustified for the different obligations, is, however, not so for thecheque, because the situation is different, and, in the sphere ofPrivate International Law, the unity of the law is pertinent" 166.

Once the general comments were concluded, by proposal ofUruguay (Edison Gonzalez Lapeyre) a working group was constitutedwith delegates from Argentina, Colombia, Chile, Ecuador, Honduras,Paraguay and Uruguay; and after intensive work a draft wasprepared, the discussion of which was begun on 26 April 1979 in thesecond commission, giving rise to opposed criteria defended basicallyby the representatives of Argentina and Chile.

Dr. Alberto Juan Pardo (Argentina) became a tireless supporter ofthe competence of the law of domicile of the bank drawn on, asestablished in the internallaw of his country, because a cheque differsfrom a bill of exchange in that Hit may not be the payment itself, but itis the instrument of a payment that responds to totally differentdispositions"; he also criticized the occasional nature of the lex loci

142 G. Parra-Aranguren

celebrationis, its lack of ties with the transaction and the possibledifficulties of determining it in sorne cases.

For his part, Dr. Rafael Eyzaguirre Echeverría (Chile) recaIled thetransactional nature of the draft, similar to the convention signed inPanama on BilIs of Exchange, Promissory Notes and Invoices: heemphasized the need for regulating by a single law the one of the placewhere the obligation is contracted, the aspects relative to capacity,form and substance, with the evident advantage of overcomingqualifying difficulties; and he pointed out the primary objectivepursued, which is the strengthening of the rights of the bearer againstexceptions of diverse debtors incorporated during the circulation of theinstrument. In this respect, he insisted on the exchange nature of thecheque, which cannot be looked at "frorn a petty point of view, as apublic relation between the bank and a holder of a current account",and in the very last instance he gave the following reminder :

"the solution that was given in Panama for BilIsof Exchange andwhich now it is pretended to apply to cheques is a kind ofsolution, not ideal - because there always are problems - but itis the most just, equitable and fair, and the one that best supportsthe rights of the bearer of the document" 167.

The arduous doctrinal controversy, after rejection ofthe proposal torefer the matter back again to the working group, continued inthe afternoon of 27 April 1979 : the divergency of criteria and thepersistence of the positions assumed led to the inconceivable rejectionof all proposals suggested with the object of regulating the capacity ofbecoming obliged by means of a cheque 168; and the examination ofthe régime applicable to the form gave rise to a lengthy debate on theconvenience of including the "aval" (personal guaranty), which wasconsidered impossible in a cheque by sorne delegations : however, itslegal admissibility was established, at least in Colombia, Honduras andChile.

A new confrontation took place when examining the law applicableto the obligations arising out of a cheque: between the supporters ofits autonomous treatment and the persistent Argentine attitude infavour of the unity of the juridical régime, based on the law of thedomicile of the bank drawn on ; but, in the end, the thesis of theworking group succeeded 169.

When the session of28 April1979 began, Dr. Werner GoldschmidtLange (Argentina) presented a conciliatory proposal : the lex loci actusin principIe would govern capacity, form and substance of the

Conflict of Laws Conventions in Latin America 143

cheque; but, as a particular case of the favor negotii, the validityestablished by the law of the place of payment would also berecognized. In this manner it was possible for the second commissionto approve the corresponding rule on capacity to become obliged bybill of exchange pursuant to the lex loci actus , but the alternativecriterion of the lex validitatis failed later on by lack of the one votenecessary to obtain the majority as stipulated by the regulations of theconference.

The remaining articles of the draft caused less difficulties and thecompetence acknowledged to the place of payment to govern otheraspects of the cheque received unanimous consensus: there werereservations only from Dr. Rafael Eyzaguirre Echeverría with respectto the inclusion of "the qualification of the cheque" and the referenceto the effects of the different kinds of cheques ; but when the sessionfinished on 28 April 1979, the second commission had alreadyapproved the "Inter-American Draft Convention on Conflict of Lawsregarding Cheques" 170.

73. The general comments of the subject Updating of the StandingRules in America on Conflict of Laws concerning MercantileCorporations were initiated on 25 April 1979; and there existedvaluable antecedents on the matter ; the draft of the Inter-AmericanJuridical Committee, which had as annexes another two, one fromDr. José Joaquin Caicedo Castilla and the second from Dr. HaroldoValladáo ; and likewise, in the conference new alternatives had beenpresented by the delegations from Uruguay, Venezuela, Ecuador,Argentina and Mexico 17l.

Even though the interventions did not exhaust the possible issuesthat could be raised, on 26 April 1979, and by a proposal from therepresentative of Mexico (Carlos Arellano Garcia), it was arrangedto refer the matter back to a working group composed of Argen­tina, Brazil, Chile, Ecuador, Haiti, Honduras, Mexico, Peru andUruguay 172.

Intense efforts during long hours enabled the conclusion of a draft,the examination of which was begun on the afternoon of 30 April1979 : in the first place the convenience of including an express articleregarding the scope of passive application of the Convention wasdiscussed, and it was decided to limit it to corporations organized in aState party that carry out commercial activities in the territory ofanother. Such a precept was considered superfluous by variousdelegations, but it obtained the necessary votes to be approved.

The determination of the law applicable to the judicial statute of the

144 G. Parra-Aranguren

mercantile society caused a long debate, even though it can be affirmedthat there existed a general consensus in favour of the law of the placeof incorporation: discrepancies were only evidenced by semanticdistortions in view of the insistence of sorne delegations for expresslyincluding the word "capacity" and by the interpretative difficulties ofthe word "functioning" which was pretended to refer to the externalactivities of the corporation. However, the various comments of thedelegations allowed an agreement to be reached in the sense that thislatter word would only mean the "internal functioning", that is, therelations of the corporation with the partners and those of the partnersamong themselves , and the word "capacity'' would refer to theorganization of the corporations, to the exercise of the rights that itmay be entitled to 173.

The automatic recognition of the juridical personality constituted aprincipIe unanimously admitted : only the expression "as amatter oflaw" was the object of vigorous criticism by Lic. Carlos Arel1anoGarcía, which led to the failure of the approval of the proposal madeby the working group. However, a new debate was startedimmediately and from the suggestion of Mexico, a clarifyingparagraph was included as fol1ows: "The acknowledgement as amatter of law does not exclude the right of the State to require theverification of its existence pursuant to the law of the place of itsconstitution" ; and by a proposal of Peru (Roberto Macl.ean), a thirdclause was also added to the precept which stated: "In no case,whatsoever, will the capacity recognized to corporations constituted ina State be greater than the capacity that the law of the State ofrecognition grants to corporations constituted in the latter." In thismanner the article was approved after an intense forensic debate in thesession of the fol1owing day, 1 May 1979 174.

The extraterritorial activity of the mercantile societies was examinedon the morning of 2 May 1979 : there existed consensus regarding thesubmission ofthe direct or indirect exercise ofthe activities included inits social object to the law ofthe State where they are to be carried out.The only discrepancies were as to the efforts of sorne delegationstrying to ratify the operation of the principIe in certain particularhypotheses to avoid any doubful interpretation. This attitude explainsthe paragraph proposed by Brazil (Dora Martins de Carvalho) in thefol1owing terms : "the same law will rule the attainment of contral of alocal society by a mercantile society organized abroad" ; and also anew article, suggested by Argentina (Antonio Boggiano), that stated :

Conflict 01 Laws Conventions in Laün America 145

"Corporations organized in a State , but whieh endeavour toestabJish the effective seat of their central administration inanother State, may be obliged to fulfil the requisites estabJished inthe legislation of the latter."

Now, it is easily understood that both poJicies only reiterate thecompetence of principie recognized for the law of the place where theactivity is intended to be carried out; and which, of course, is only togovern the exercise of the extraterritorial activity itself: the diverseacts carried out by the society in its everyday Jife enjoy completeautonomy and are subject to the law declared appJicable on theconcrete matter by the respective rules of Private International Law.

The draft approved by the second commission also included aprecept on international competence, proposed by Ecuador. No onediscussed the legitimacy of the principie established: only somedelegations considered it out of place in an agreement on confliet oflaws ; but in the last instance the following formula was admitted :

"The mercantile societies organized in a State, for the direct orindirect exercise of the acts included in their social object, will besubject to the jurisdictional authorities of the State where theywere carried out" 17S.

In this manner, the examination of the second draft's conventionwas concluded on the morning of 2 May 1979 : its importance ishighly satisfactory as it constitutes the first serious contemporaneousattempt to accept, within the American hemisphere, certain basie rulestending to solve problems raised by mercantile societies in theinternational scope. The evident uniformity of criteria among thedelegations enables the affirmation that the instrument has limiteditself to codify existing law ; with the characteristic that the solutionsprovided are also useful to face with undeniable ability somedifficulties caused by societies of public law and to satisfy theoverbearing demands of the countries in their legitimate right toprevent abuse from transnational enterprises.

74. Even though nothing had been expressly arranged regardingthe third point of the agenda in the order of priorities, the President ofthe second commission (Gonzalo Parra-Aranguren) decided tocontinue with the topie : General Rules 01Private International Law inthe afternoon session of 30·April 1979 ; and after some comments, thenecessity of examining the subject "with affection but also withcaution" (Francisco Villagran Kramer) had been pointed out, it was

146 G. Parra-Aranguren

resolved to create a working group composed of representatives fromArgentina, Brazil, Colombia, Ecuador, Honduras, Mexico, Peru,Dominican Republic, Uruguay and Venezuela 176 .

The close personal relationships among the delegates and an intenseeffort during two long days enabled the preparation of a draft, as aresult of interventions "of very high scientific quality and seriousness"in the words of the President of the working group (Roberto MacLeanUgarteche) 177 : its examination was started on the morning of 4 May1979 with the warning that, in view of the lack of the necessaryconsensus in certain aspects, it did not pretend to solve all the generalproblems of Private International Law, and that the rules referring tothe condition of foreigners, which appeared in the draft of the Inter­American Juridical Committee, had been excluded by unanimity,

The initial article, in the order of preference of the sources of Jaw,was decIared unnecessary by Dr. Haroldo Texeira Valladáo, as "it isknown from everyday Iife'". however, it was maintained in theconvention as a useful declaration, and to satisfy the existingconsensus as to its contents.

No material discussion originated the precept tending to solve themanner of applying foreign law . the validity of the principIeaccording to which it must be done in the same form and conditions asin its country of origin was unanimously recognized ; and there wereonly formal discrepancies, whereas the Argentine delegation (WernerGoldschmidt Lange) insisted on formulating in a single articIe the saidpolicy and the solution on the procedural treatment of the foreign law.

This latter subject did not give rise to any debate either in view ofthe existing consensus on the duty which the judge has to ascertainand apply ex officio the foreign law that may be competent pursuant tothe respective rule of Private Internationl Law : only the phrase "exofficio" was eliminated to satisfy the requirements of the representa­tive of Mexico (José Luis Siqueiros), but without giving validity to theprincipIe itself; and, of course, taking into consideration the interest ofthe parties in the matter, they were authorized to collaborate with thejudge in the compliance of his mission (Article 2>-

During examination of the subject relative to the manner ofapplying foreign law, some problems inherent to the unknowninstitution were raised by the representative of the United States ofAmerica (Arthur Von Mehren) , and in the wish of overcomingpossible diffículties, he set forth a very important proposal,implemented with a last sentence by the Argentinian delegate (WernerGoldschmidt Lange), in the following terms :

Conflict of Laws Conventions in Latin America 147

"When the law of a State party has institutions or proceduresessential for its adequate application and they are not contem­plated in the legislation of another State Party, the latter mayrefuse to apply such law, provided it does not have analogousinstitutions or procedures 178."

Notwithstanding the wisdom ofthe text suggested, it was rejected inthe second cornmission, whereas it only obtained ten out of the elevennecessary votes; but it could be rescued by the representative ofVenezuela (Gonzalo Parra-Aranguren) in the fifth full session, on5 May 1979, and it constituted the third article of the convention 179.

The instrument approved by the second commission likewisereiterated the principIe already admitted by the treaties of Montevideoand by the Bustamante Code, of allowing all procedural remedies inthe hypotheses ofundue or erroneous application offoreign law, in thesame cases accepted for the infringement of their own law ; and nodebate arose either by the article that authorized each State Party toabstain from applying foreign law if "it considers it openly contrary tothe principIes of its public policy",

The exception of fraude ti la loi in Private International Law wasalso obtained by consensus, the broadness of its formula to cover theevasion of foreign law should be noticed ; even though, on the otherhand, it restricts the possible operation of the precept since itsintervention is only accepted when "fundamental principles" of thelaw of the other State Party have been evaded, as was proposed by theVenezuelan representative (Gonzalo Parra-Aranguren) in the workinggroup. Likewise, the second commission approved the addition of aclause to the article in the following terrns . "It will be up to thecompetent authorities of the receiving State to establish the fraudulentintention of the interested Parties" ; and, actually, the declaratory canbe considered unnecessary whereas certainly the determination oífraud corresponds, in any case, to the judge called upon to decide thecontroversy.

The next article of the convention is limited to reproducing theformula proposed by the delegate of Venezuela (Gonzalo Parra­Aranguren) in the working group, with a superfluous addition in orderto protect the already acknowledged demands of public policy ; and itwas stated:

"Juridical situations validly created in a State Party, pursuantto all the laws with which they have a connection at the timeof their creation, will be acknowledged in the other States Party

148 G. Parra-A ranguren

provided they are not contrary to their public policy principles."

The historical background of the article shows only the existence of anarduous discussion on the modificatory proposal of the representa­tive of Argentina (Werner Goldschmidt Lange), who presumed therecognition of the juridical situations when they had been created in avalid manner "pursuant to alI the laws with which they have areasonable connection at the time of their creation" : the reference to a"reasonable connection" was considered a source of uncertainties and,even though technicalIy more exact, it was not accepted by the secondcommission 180.

Problems set forth which had arisen from incidental, previous orpreliminary, matters were not solved by the convention: theArgentine draft favoured the rules of Private International Law of the[ex fori , but the commission received the Venezuelan proposal(Gonzalo Parra-Aranguren), that only pursued the recognition of itsautonomy of treatment, in view of the absence of further consensus :as was pointed out with dexterity by Dr. Werner Goldschmidt Lange,the article approved "does not frankly accept any of the theories, but itfavours, without any doubt", the doctrine of hierarchization 181.

The folIowing precept reproduces the formula of the Venezuelandraft: it was pretended to obtain the necessary adaptation of thedifferent juridical systems applicable to various aspects of one subject­matter as a consequence of the analytical method used in PrívateInternational Law; and the following was stated:

"The various ... laws that may govern different aspects of thesame juridical relation will be harmoniously applied, endeavour­ing to carry out the objectives pursued by each one of the saidlegislations. The possible difficulties caused by their simultaneousapplication will be solved by taking into account the requirementsimposed by justice in the concrete case."

As was explained by the proposer, Dr. Gonzalo Parra-Aranguren, inthis manner it is endeavoured to obtain the indispensable equilibriumbetween formal justice aimed at by the rules of conflict, and materialjustice that should be obtained in the specific solution of thecontroversy. On the other hand, the article represents a clear openingtowards new concepts of modern doctrine in the United States ofArnerica, and constitutes an adequate reply to certain criticisms againstthe prevailing use of indirect rules to solve problems of PrivateInternational Law.

The convention abstained from regulating sorne classical problems

Conflict 01 Laws Conventions in Latin America 149

of the general part due to lack of the necessary consensus ; and it didnot receive other initiatives either, tending to strengthen the solidstructure of the approved instrument. From this latter point of view itshould be recalled that the representatives of Mexico (LeonelPereznieto Castro) and Venezuela (Gonzalo Parra-Aranguren) presen­ted, jointly, an article, tending to integrate the functioning of the rulesof conflict with the substantial rules, on the basis of the justice of theconcrete case, to avoid unacceptable distortions in the practicalresults ; but the working group considered that it was a simple guide ofconduct, obvious by itself and of indisputable obeisance.

In the second commission, the following article was also proposedby Dr. Gonzalo Parra-Aranguren . "Rules that express fundamentalprincipIes of the legislation of each State Party will be applied withpreference to those on selection of the law applicable" ; and in thismanner he pretended the express recognition of certain juridical areaswhich are aside from the possible intervention of the rules of conflictand regarding which there is not even the possibility of applyingforeign law.

Sorne of the participants considered the article unnecessary : in thewords of Dr. Werner Goldschmit Lange,

"if the rule proposed means that each country in its internallegislation may create dispositions which are characterized as ofinternational public order, there is no doubt that it is so, but forthat no disposition is necessary, because it would be vicious tohave it in an international agreernent",

Certainly, the validity of the foregoing affirmation is undeniable fromthe perspective of a national juridical system, whereas it correspondsto each State, in the exercise of its legislative sovereignty to determinethe scope of operation of its own juridical rules, inclusive of those onconflicts of law ; but the existence of such authority is very doubtful inface of rules conventionally established to select the law applicable,since it would contradict the order of preference of the sources of law.In effect, articles of a treaty are of a rank superior to internal rules;their derogation is only possible in the manner provided by PublicInternational Law and it is not admissible that they may be repealedad libitum by each State Party by means of the later promulgation oírules of international public order, unless it is authorized by the con­vention itself. Therefore an express authorization is required and theaim of the Venezuelan proposal was to satisfy such an unavoidablerequirement.

150 G. Parra-Aranguren

Sorne delegations a!so pointed out the unnecessary nature of thearticle because they considered that its objectives could be obtainedthrough the reserve clause of international public policy, alreadyadmitted in the convention. Nevertheless, such perspective forgets thetrue nature and the functioning of the reserve clause of internationalpublic policy that assumes the previous intervention of the rule ofconflict and constitutes an exception to the duty of applying the foreignlaw declared competent. Now, the Venezuelan proposal pursued adifferent objective, that is the recognition of the existence of certainjuridical areas in which the rules of conflict cannot intervene ; and inwhich it is not even conceivable to apply foreign law, because thosematters have been directIy disposed of by rules that expressfundamental principIes of the legislation of each State : in this casepublic policy operates a priori and not a posteriori.

In view of the generalized consensus of the participants on theobvious and unnecessary nature of the precept, the Venezuelandelegation withdrew its proposal in order to avoid further confronta­tions which could affect the success of the Convention on GeneralRules of Private International Law . however, it asserted in theminutes the objective pursued with the proposa!, that is, to render an"homage to sincerity, in the sense that it should not be possible todistort the exception of the public policy using it in a positive way, ascourts usua!ly do" 182.

75. The theme Personality and Capacity in Priva te InternationalLaw was the object of generic comments during the morning sessionsof I May 1979 183 ; and once they concluded a working group wasappointed, with delegates from Argentina, Brazil, Colombia, Chile,Ecuador, Honduras, Mexico, Peru, Uruguay and Venezuela 184.

After intensive efforts and with a precarious majority, a draftlimited to physical persons could be prepared 185 : its examination inthe second commission began on 5 May 1979, and on that sameoccasion, after lengthy interventions, it was established that there wasa lack of consensus among the participants regarding the selection ofthe law applicable to the existence, general capacity, rights inherent topersonality, capacity to act and extinguishment of the personality ofphysical persons. In fact, as Lic. José Luis Siqueiros (Mexico) pointedout

"such eminent professors as Dr. Texeira Valladáo and others whohave investigated the matter, are inclined towards the system ofthe lex fori, the law of each State Party , other distinguishedprofessors from Argentina and Uruguay are inclined towards the

Conflict 01 Laws Conventions in Latin America 151

law of the domicile, and there probably would still be someonewho intended the application of the national law, at least whennationals are out of their countríes".

The latter words were prophetical, and sorne moments later therepresentative of Colombia (Fabio Torrijos Quintero) heartily defendedthe law of the nationality, by express instructions of his Government ;an attitude which was certainly surprising because it represented thefailure of more than 25 years of effort by the eminent Colombianjurist, Dr. José Joaquin Caicedo Castilla, towards hemisphericunification in matters of status and capacity of persons on the basis ofthe law of the domicile.

In view of the opposed criteria, a consensus could not be reached ;and owing to the importance of the subject, the representative ofMexico (José Luis Síqueiros) proposed a deferment in the considera­tion of the theme : thus it was approved by twelve affirmative votes,none against and two abstentions 186.

76. The participants of the second commission initiated theircommentaries on Domicile in Private International Law during themorning of 3 May 1979 ; and on that same occasion it was decided toconstitute a working group made up by : Argentina, Brazil, Colombia,Chile, Ecuador, Honduras, Mexico, Peru, Uruguay and Venezuela 187.

In view of the rejection of a premature proposal of deferment for afuture conference formulated by the Colombian representative (FabioTorrijos Quintero) on 5 May 1979 188, the second commissiondedicated 6 May 1979 to the examination of the draft of the workinggroup which restricted itself to dornicile of physical persons and onlyfor purposes of Private International Law.

The determination of the domicile of physical persons, based on"the place of habitual residence" received unanimous support ; and inthis way the subjective element (antmus manendi) was eliminated. Qnthe contrary, the selection of subsidiary criteria was the origin ofcontroversy . the representative of Argentina (Antonio Boggiano)proposed that the place of residence of the family group should betaken into account in the terms provided for by the treaty ofMontevideo; he suggested qualifying the principal centre of businessas that place where "business is evidently established in a principalway" ; and maintained the elimination of the last subsidiary criteria ofthe draft that read as follows : "if there were no simple residence, theplace where the physical person is present",

The fruitful exchange of ideas led to the approval of the article as it

152 G. Parra-Aranguren

stood in the draft of the working group ; and in the case of lack ofpermanent residence in one place, the following subsidiary criteriawere established :

"(2) the place of the principal centre of his business; (3) in theabsence of these circumstances, the place of the simple residen cewill be reputed as domicile ; (4) or else, if there is no simpleresidence, the place where he may be".

Immediately thereafter, Dr. Haroldo Texeira Valladáo proposed thefollowing article : "Domicile of persons without capacity (incompetentpersons) is that of their legal representative, except in the case ofabandonment by the representative, in which case the previous onewill continué." This was a rule included in the draft of the Inter­American Juridical Committee which did not obtain the necessaryconsensus in the working group, notwithstanding extensive discussionon the matter : the discrepancy of criteria was canalized by means ofthe insistent position of Venezuela (Gonzalo Parra-Aranguren) tryingto obtain a separate domicile for persons without capacity ; and eventhough the Brazilian suggestion was approved by the secondcommission 189, the delicate controversy was uselessly reproducedin the sixth full session of the conference which was held on7 May 1979 190.

The subject relative to the matrimonial domicile did not give rise toany difficulties : it is determined by the place where the spouses livetogether ; but the most important aspect consists in the unanimousacceptance of the right which each spouse has to establish anautonomous domicile, pursuant to the rules consecrated by the secondarticle of the convention. In this manner the possible independentdomicile of married women obtained acknowledgement by consen­sus; even though sorne difficult disputes arose during the procedurefor obtaining the necessary majority, notwithstanding the evidentsimilarity of all proposals, due to the efforts of sorne participants invoting only in favour of their own formula.

. The draft immediately reproduced accepted criteria in PublicInternational Law which attribute to diplomatic officers the lastdomicile in the territory of the accrediting States ; and an analogoussolution was established for physical persons who temporally resideabroad because of employment or commission of their government.

The Second Commission agreed to eliminate a "not verysatisfactory" rule (Carlos Arellano García) that provided for apresumption in favour of the last domicile while a new one had not

Conflict 01 Laws Conventions in Latin America 153

been constituted : such a policy was useless in practice in view of thesubsidiary criteria established by the second artic1e of the convention,because if in the last instance the place where the person is presentshould be taken into consideration it is not very c1ear when thepresumption regarding change of domicile should intervene.

Immediately thereafter the formula proposed by the Venezue1anrepresentative (Gonzalo Parra-Aranguren) to solve the hypotheses ofmultip1e domicile was approved : the place of the simple residence ispreferred and in case that the person resides in various States Parties, itshou1d be resorted to the place where he is found.

Finally the scope of the operation of the convention was discusssedand it was agreed to restrict it to the field of the Private Internationa1Law 191 : the corresponding artic1eonly suffered one 1aterchange in itsposition because it was assigned the first place in the sixth full sessionof7 May 1979 192

•

The historica1 development of the Convention on Domicileconstitutes evident proof of the fanatical influence of public policyconsiderations in sorne of the participants : the delegate of Venezuela(Gonzalo Parra-Aranguren) without pretending any "juridical heresy"proposed the elimination of the respective clause from the draft, as heconsidered it inconceivab1e in a uniform convention. Even though itwas defeated at the commission by three votes in favour, fourvotes against it and five abstentions 193, the elimination of the c1auseonpublic policy was finally disposed of by the sixth full session of7 May 1979 194.

77. The Second Inter-American Specialized Conference on PrivateInternational Law he1d seven plenary sessions: in the second one,which was held on 30 April 1979, the Resolution on InternationalMaritime Transportation, wlth special reference to the bilis of ladingwas approved without variations of substance 195 ; and the day after,on 1 May 1979, the examination of the Inter-American Convention onConflicts 01Laws concerning Cheques was initiated with the words ofLic. José Luis Siqueiros (Mexíco) pointing out three fundamentalreasons to discard the draft. In the first place because it was limited toreproducing the text of Panama, without any updating : secondly,because of the conflicts inherent in the co-existence of two treaties onthe same matter ; and in the last instance because the convention doesnot innovate anything at all : they are the same dispositions of theTreaties of Montevideo of 1889 and 1940. Consequently,

"there is no novelty, no innovation, no situation which wou1dproduce a certain pride of contributing something new, updated,

154 G. Parra-Aranguren

that would seize modern doctrines and trends of the internationaltrade, nothing, absolutely nothing".

The unexpected proposal of the Mexican representative causedevident surprise, but was the object of categorical rejection after anextensive debate.

Afterwards, the Argentine delegate (Alberto Juan Pardo) reiteratedhis arguments to insist on the convenience of approving the rule infavore negotii, rejected by the second commission, tending toacknowledge the validity of the obligation that would satisfy therequirements imposed by the law of the domicile of the bank drawnupon : the new exchange of opinions was useless and the proposal wasdefinitely rejected.

The later examination of the draft did not give occasion to any othercontroversies : the only thing rescued, by suggestion of Dr. GonzaloParra-Aranguren (Venezuela), was an "innocent victim ofthe struggleof the debates", that is, the exception in favore negotii relative tocapacity to enter into an obligation by means of a cheque. Itselimination would have been unjustified because it already had a goodreception and constituted law in force in the ratifying countries of theInter-Arnerican Convention endorsed in Panama in 1975.

Likewise a new rule was approved by proposal of Guatemala, theimportance of which should be projected in the Central AmericanCommon Market ; and it was agreed in Article 9 : "Cheques that arepresented to an intra-regional compensation chamber will be ruled, asfar as it were applicable, by the present convention."

After the draft was approved, the representative ofUruguay (EdisonGonzalez Lapeyre) reproduced sorne ideas of his delegation regardingthe operation of public policy, "not necessarily identified with theinternal public policy of each State" ; and intervention of which is onlyjustified when the rule of the foreign law applicable "offends in aconcrete, grievous and open manner the rules and essential principiesof international public policy, on which each State bases its juridicalindividuality" I96.

During the afternoon of 3 May 1979, the fourth full session of theconference was held : the main subject of consideration was the draftconvention on the subject Updating ofthe standing rules in America onconflict of laws concerning mercantile corporations. Even though thereexisted consensus with respect to the solutions approved, Dr. HaroldoTexeira Valladáo insisted on imposing the formulae proposed by thedelegation of Brazil, but the attempt was not successful 197.

The fifth fuIl session was held on 5 May 1979 : the draft convention

Conflict 01 Laws Conventions in Latin America 155

on General Rules 01Private lnternational Law was the object of a verybrief examination to verify the agreement existing among alldelegations : only the representative of Uruguay requested that expresscertification be left on record of his abstention to vote the articleregarding fraude a la loi, and the delegate of Venezuela (GonzaloParra-Aranguren) rescued "another innocent victim", which this timewas the proposal of the United States of America (Arthur VonMehren) with the Argentine addition (Wemer Goldschmidt) tending toallow the exclusion of the competent foreign law, when it containsinstitutions or procedures essential for its application that areunknown in the legislation of the other State party 198.

Immediately thereafter were approved the Draft of Inter-AmericanConvention on Extraterritorial Efficacy 01 Foreign Sentences andAwards ; and the Draft ofInter-American Convention on Compliance 01Preventive Measures and the Draft 01 Protocol to the lnter-AmericanConvention on Letters Rogatory , in relation to this last one, therepresentative of Chile (Carlos Ferreira Cannobio) reiterated theabstention of his country : and Dr. Alberto Juan Pardo (Argentina) lefton record the difficulties which the Argentine Republic had to ratifythe article on gratuitous proceedings of the jurisdictional organisms, inview of the federal system existing in his country 199.

The sixth full session of the conference was held on the morning of7 May 1979, and with a few formal changes in first place theresolution on Personality and Capacity in Private lnternational Lawwas approved.

Immediately thereafter, examination of the convention on Domicile01Physical Persons in Private lnternational Law was initiated : withoutfurther debate the suggestion of Brazil tending to eliminate the articleon its scope of operation, ratione materiae, was rejected; but thespirits were agitated in an unjustifiable way by the insistence of theVenezuelan representative (Gonzalo Parra-Aranguren) in favour of anautonomous domicile for incompetent persons. The suggestion wasqualified with horror, as "a revolution ofthe law" by the very eminentBrazilian jurist, Dr. Haroldo Texeira Valladáo, and the severeexchange of criteria which followed had as an unhappy ending a firsthomage to the classic doctrine. Nevertheless, the matter was the objectof a later examination because of a new article suggested byUruguay: and it is regrettable to leave record of the unseasonableconclusion of the debate, due to a motion of order formulated by therepresentative of the country seat of the conference, that impeded theVenezuelan delegate from taking the floor, and led to an incomprehen-

156 G. Parra-Aranguren

sible approval of juridical concepts that ought to be discardednowadays.

Besides the foregoing incidents, the project on domicile did not giverise to further difficulties in its due proceedings : the representative ofVenezuela (Gonzalo Parra-Aranguren) again proposed, this time withsuccess, the elimination ofthe cIause on public policy, incomprehensi­ble in a treaty on uniform rules; and the insistent attempts of sornerepresentatives with the object of restricting the scope of materialoperation of the convention were discarded.

Even though it was very late, the tight schedule imposed that theexamination of the draft on Evidence and informatlon regardingForeign Law be continued : the representative ofChile (Carlos FerreiraCannobio) proposed to eliminate the obligation of answering when theinterests of the country were affected, or if the reply could affect itssovereignty or security, in terms similar to those provided for in theBrasilia Draft of the Ministers of Justice u972) and in the EuropeanConvention of London (l 968) : the Uruguayan delegation suggestedthe addition of sorne new guidelines as to the language to be used ; andDr. Gonzalo Parra-Aranguren (Venezuela) sustained the advantages ofadmitting the direct remittance of the request by the jurisdictionalorganism to the central authority of the requested State: all theforegoing proposals were accepted without further controversy 200.

The seventh and last fulI session of the Second Inter-AmericanSpecialized Conference on Private International Law was held in theafternoon of 7 May 1979 : in the first place, homage was rendered toDrs. Alvaro Vargas Guillernette, José Joaquin Caicedo Castilla,Ricardo J. Alfaro and Haroldo Texeira Valladáo ; and immediatelythereafter, by suggestion of the delegation of Venezuela, resolutionswere adopted on the folIowing subjects : recognition of the work ofthe legal department of the secretariat of the American States ,International Year of the Child ; colIaboration with the computarizeddata bank organized by the Legal Department of the GeneralSecretariat of the Organization of American States ; and study of thepossibility of ratifying the Convention of New York (1956) onMaintenance Obligations.

On the other hand, by proposal of the Uruguayan delegation, aresolution was approved on Recognition of the Work of the Inter­American Juridical Committee ; and by the initiative ofPeru the workof persons who participated in the tasks of the Secretariat of theCIDIP-U was formalIy recognized.

Likewise, and based on the suggestion of the representatives of

Conflict of Laws Conventions in Latin America 157

Mexico and Peru, a request was approved to the general assembly ofthe Organization, the convocation of the Third Inter-AmericanSpecialized Conference on Private International Law (CIDIP-I1J) ; andin particular, a petition was formulated to undertake the study of the"convenience of institutionalizing the Inter-American Conference onPrivate International Law, which should meet every three years", Thefavourable reception to such a proposal by the general assembly willrepresent a valuable stimulus to overcome juridical problems amongprivate persons caused by the phenomenon of the frontier, and willconstitute a solid basis for the future development ofthe codification ofPrivate International Law in the American hemisphere 201.

The solemn final session of the Second Inter-American SpecializedConference on Private International Law was held in the afternoon of8 May 1979. After the "Final Minutes" were signed by the attenders,the Plenipotentiaries with full powers proceeded to endorse thefollowing instruments : (1) Additional Protocol to the Inter-AmericanConvention on Letters Rogatory ; (2) Inter-American Convention onthe Extra-territorial efficacy of Foreign Judgments and Awards ; O)Inter-American Convention on Execution ofPreventive Measures ; (4)Inter-Arnerican Convention on Evidence and Information regardingForeign Law, (5) Inter-American Convention on Conflicts of Lawsconcerning Cheques; (6) Inter-American Convention on Conflicts ofLaws concerning Mercantile Corporations; (7) Inter-AmericanConvention on General Rules of Private International Law ; (8) Inter­American Convention on Domicile of Physical Persons in PrivateInternational Law.

Immediately thereafter, Dr. Juan Materno Vásquez (Panama) madea speech in the name of the attending delegations , afterwards Dr.Tatiana B. De Maekelt, Legal Advisor ofthe General Secretariat oftheOrganization of American States took the floor and used unforgettablewords , and finally, Dr. Manuel E. Vieira pronounced an emotivespeech to close the tasks of the Second Inter-American SpecializedConference on Private International Law (CIDIP-II) 202.

All farewells are sad and those ofthe Third Congress ofMontevideowere no exception : it is a weakness proper to the human nature, onlybearable with clear conscience of the results obtained; but thetemporal joy of success soon develops into an anguished pilgrimagetowards truly universal peace and justice. It thus happens in everydaylife, in the juridical world and in the specific field of PrivateInternational Law. Purposes are evident , wishes cannot be deniedeither, and there only remains open the query regarding futureachievements.

158

NOTES

l. N. Garay, "Idea de una Liga que corresponda a los conceptos panamericanos delCongreso de Bolívar", Revista de Derecho Internacional, Havana, Vol. X, 1926,pp. 189-228; F. J. Urrutia, "La Codification du Droit International en Amérique",RCADI, Vol. 22, 1928-11, pp. 94-97 ; J. M. Yépez, "La Contribution de l'AmériqueLatine au developpement du Droit International Public et Privé", RCADI, Vol. 32,1930-11, pp. 714-715.

2. "Integración americana: Documentos históricos", Derecho de la Integración(DI), Buenos Aires, Vol. 14, November 1973, pp. 268-284.

3. Venezuela and the former Provinces ofNueva Granada (today, the Republic ofColombia) agreed in 1821 to constitute a single independent State under the name ofColombia. Ecuador joined afterwards. However, Venezuela and Ecuador decided in1830 to separate and to continue as independent States.

4. The Treaty was only ratified by Colombia, in 1827, and consequently nevercarne into force.

5. A. Ulloa, Congresos Americanos de Lima, Vol. 1, Lima, 1938, p. 330.6. Ulloa, op. cit., Vol. 1, p. 615.7. Ulloa, op. cit., Vol. 1, pp. 623-624.8. Ulloa, op. cit., Vol. 1, p. 513.9. E. Zeballos, Justicia Internacional Positiva, Valencia, Spain, 1911, pp. 208 ff.

However the Lima Convention was practically reproduced in the Treaty of PrivateInternational Law, signed in 1903 and still in force between Colombia and Ecuador.

10. Ulloa, op. cit., Vol. 11, pp. 391-405.11. Q. Alfonsin, Teoria del Derecho Privado Internacional, Vol. 1, Montevideo,

1955, No. 180, p. 278.12. Such influence is undeniable in the Treaty of International Commercial Law,

signed in Montevideo in 1889.13. G. Parra-Aranguren, "Los precedentes venezolanos del Código Bustamante",

Revista de la Facultad de Derecho de la Universidad Católica Andrés Bello, Caracas,1974, Vol. 17, pp. 15-19.

14. G. Ramírez, Proyecto de Código de Derecho Internacional Privado, Monte­video, 1888.

15. Because of different reasons Colombia, Ecuador and Venezuela were notpresent at the Congress (Actas de las Sesiones del Congreso Sudamericano de DerechoInternacional Privado, Buenos Aires, 1894, pp. 15-16, 18,21-22). However, Colombiaacceded in 1933 to the Treaties on International Civil Law and InternationalCommercial Law O. J. Caicedo-Castilla, Derecho Internacional Privado, Bogotá, 1967,No. 23, p. 24).

16. Tratados y Convenciones Interamericanos. Firmas, ratificaciones y depósitoscon notas explicativas, Washington, 1964, p. 109.

17. Zeballos, op. cit, pp. 217 ff.18. Conferencias Internacionales Americanas 0889-1936), Vol. 1, Washington,

1938, pp. 14-15.19. The following instruments were signed at the First Central American Juridical

Congress : Treaty to Create the Centroamerican Union, Convention on CommercialLaw, Treaty on Artistic Property and Industrial Property, Treaty on Civil Law andConvention on Procedural Law. These documents were revised sorne years laterduring the sessions of the Second Central American Juridical Congress which met inEl Salvador in 1901 O. Matos, Curso de Derecho Internacional Privado, Guatemala,1941, No. 135, p. 229).

20. G. Parra-Aranguren, "El Acuerdo Boliviano sobre Ejecución de ActosExtranjeros (I 911) a la luz de la jurisprudencia venezolana", Revista de la Facultad de

Conflict 01 Laws Conventions in Laün America 159

Derecho de la Universidad Católica Andrés Bello, Caracas, 1976, Vol. 22, pp. 9-132.21. The Convention to Prepare the Codes on Public International Law and Private

International Law in America was approved at the Second International AmericanConference which met in 1902.

22. A. S. de Bustamante, La Comisión de Jurisconsultos de Rio de Janeiro y elDerecho Internacional, Havana, 1927, No. 16, p. 17.

23. J. B. Scott, "La Codificación Gradual y Progresiva del Derecho Internacional",Revista de Derecho Internacional, Havana, 1927, Vol. XI, No. 23, pp. 21-23.

24. A. S. de Bustamante, Codificación del Derecho Internacional Americano.Proyecto de Código de Derecho Internacional Privado, Washington, 1926.

25. On the proposal of Maximo H. Zepeda, the Sixth International AmericanConference approved to name, officially, Bustamante Code the instrument annexed tothe Convention on Private International Law (Conferencias Internacionales Ameri­canas 0889-1936), Washington, 1938, Vol. 1, p. 406).

26. The same argument had been advanced at the Lima Congress (Ulloa, op. ctt.,Vol. II, pp. 134-135) and at the Second Meeting of the International Commission ofJurists that took place in Rio de Janeiro in 1927 (Scott, arto cit., No. 23, p. 60).

27. Posibilidad de Revisión del Código de Derecho Internacional Privado (CódigoBustamante), Document prepared by the Legal Department of the PanamericanUnion in 1961, Documentos de la Organización de los Estados Americanos sobreDerecho Internacional Privado, OEA/Ser.Q.II.9CIJ/15, Washington, 1971, pp. 331­332 (Documentos).

28. F. de Castro, "Debe adherirse España al Código Bustamante ?", Revista deDerecho Privado, Vol. XXII, 1935, pp. 2-3; J. Muci-Abraham, Los Conflictos deLeyes y la Codificación Colectiva en América, Caracas, 1955, pp. 40-45.

29. Congresos Sud-A mericanos de Derecho Internacional Privado (Montevideo1888-1889 y 1939-1940). Actas y Documentos Seleccionados, CJI-14 (A), Washing­ton, 1974.

30. Tratados y Convenciones Interamericanos. Firmas, ratificaciones y depósitoscon notas explicativas, Washington, 1964, p. 109. The treaties approved in the Firstand in the Second Montevideo Congress were published within the framework of theOrganization of American States as preparatory documents for the First InteramericanSpecialized Conference on Private International Law: Textos de los Tratados deMontevideo sobre Derecho Internacional Privado, CJI-14, Washington, 1973.

31. M. Torres-Campos, Elementos de Derecho Internacional Privado, Madrid,1913, pp. 145-146.

32. Congreso Juridico Ibero-Americano reunido en Madrid el año de 1892, Madrid,1893.

33. However, the rules of the Protocol on Literary and Artistic Property werereproduced in a bilateral convention signed between Argentina and Spain Uournal deDroit International Privé, 1901, pp. 612-613).

34. M. de Lasala-Llanas, "La Posibilidad de la Accesion de España al CódigoAmericano de Derecho Internacional Privado (Código Bustamante)", Revista deDerecho Privado, Vol. XXI, 1934, pp. 221-228.

35. J. Quero-Molares, "La Adhesión de España al Código Americano de DerechoInternacional Privado", Revista General de Legislación y Jurisprudencia, Vol. 165,1934, pp. 695-721.

36. F. de Castro, arto cit., pp. 1-6.37. Professor Lasalla-Llanas mentions not only the Spaniards Saldaña and Gestoso

Tudela, but also the following Latin American authors : Uribe (Colombia), Anderson(Costa Rica), Elizalde (Chile), Cruchaga (Chile), Paredes (Ecuador), Alvarez(El Salvador), Alvarado (Honduras) and Farrera (Venezuela) C'Puede AdherirseEspaña al Código Bustamante ?", Revista de Derecho Privado, Vol. XXII, 1936,pp. 217-222>.

38. F. de Castro, "De nuevo sobre la pretendida adhesión de España al CódigoBustamante", Revista de Derecho Privado, Vol. XXII, 1935, pp. 306-307. Sornecomments on this polemic were made by Hermann Corvington, Professor of Private

160 G. Parra-Aranguren

International Law at the University of Port au Prince (Haiti), under the title : "Unaopinión de Profesor sobre la. extensión del campo de aplicación del CódigoBustamante y la oportunidad de su adopción por el Gobierno de España", Revista deDerecho Internacional, Havana, Vol. XXXI, 1937, pp. 88 ff.

39. See G. Parra-Aranguren, "El Código Bustamante : Su vigencia en América ysu posible ratificación por España", Libro-Homenaje al Doctor Luis Loreto, Caracas,1975, pp. 202-282.

40. Actas del Primer Congreso Hispano-L uso-A mericano de Derecho Internacional,Vol. 1, Madrid, 1952, p. 2I.

41. Yépez, arto clt., pp. 691-799.42. A Iist ofthe Members ofthe Institute has been published recently : Prontuario

del Instituto Hispano-Lusa-Americano de Derecho Internacional, Madrid, 1977.43. Anuario Hispano-Lusa-Americano de Derecho Internacional, Vol. 1, Zaragoza,

Spain, 1959, pp. 426-427.44. Anuario Hispano-Lusa-Americano de Derecho Internacional, Vol. IIl, Zara­

goza, 1967, pp. 456-457.45. Anuario Hispano-Lusa-Americano de Derecho Internacional, Vol. IV, Madrid,

1973, p. 684.46. Anuario Hispano-Lusa-Americano de Derecho Internacional, Vol. IV, Madrid,

1973, p. 694.47. Anuario Hispano-Lusa-Americano de Derecho Internacional, Vol. IV, Madrid,

1973, p. 701.48. Anuario Hispano-Lusa-Americano de Derecho Internacional, Vol. IV, Madrid,

1973, pp. 716-717.49. Instituto Hispano-Lusa-Americano de Derecho Internacional. Acuerdos

del Décimo Congreso. Mexico-Guanaiuate, 15-27 septiembre 1974, Madrid, 1975,pp. 18-20.

50. Acuerdos del Undécimo Congreso. "Bodas de Plata del I.HLA .DI" Madrid­Salamanca, 5-12 octubre 1977, Madrid, 1977, p. 12.

51. Similar regulation is to be found in the Hague Convention on the Taking ofEvidence Abroad in Civil or Commercial Matters, approved on 18 March 1970.

52. According to a Report presented at this opportunity by the Secretariat General,the Conference had been formalIy recognized by the folIowing countries : Argentina(26 March 1973), Bolivia (I 2 July 1973), Brazil (22 October 1971), Colombia (22 June1972), Chile (20 April 1978), Ecuador (8 January 1971), El Salvador (I4 December1970), Spain (23 September 1970), Pan ama (25 November 1975) and Venezuela(I9 May 1972) ilrforme. Cuarta Conferencia de Minisiros de Justicia de los PaisesHispano-Lusa-Americanos y Filipinas, Caracas, 1978, pp. 1-2).

53. Instrumentos relativos a la Integración Económica en América Latina, Vol. 1,Washington, 1964, Intr. p. IX.

54. The treaty was acceded to by Colombia (Septernber 1961), Ecuador (November1961), Venezuela (August 1966) and Bolivia (December 1966).

55. Costa Rica acceded to the treaty in 1962.56. M. A. Vieira, "Le Droit international privé dans le développement de

l'intégration Iatino-américaine'', RCADI, Vol. 130, 1970-Il, No. 47, pp. 421-424 (aSpanish translation is to be found in DI, Vol. 12, March 1973, pp. 55-109>-

57. Vieira, arto cit., pp. 424-432.58. F. Peña, "Algunos aspectos de la experiencia institucional de la integración

económica en América Latina", DI, Vol. 16, July 1974, p. 35.59. A Spanish version of the documents relating to the Caribbean Free Trade

Association (CARIFTA) has been published in DI, Vol. 5, October 1969, pp. 156-178.It is not to be forgotten that the smalIer and less developed islands of the zone createdsimultaneously the East Caribbean Common Market, even though its practical resultswere insignificant (DI, Vol. 8, April 1971, pp. 227-239).

60. A Spanish version of the basic ínstruments of the Caribbean Community waspublished in DI, Vol. 21 , March 1976, pp. 117-167 ; and they are fulIy discussed by

Conflict 01 Laws Conventions in Latin America 161

H. G. Geiser "La Integración regional entre los países en desarrollo: el caso de laCommonwealth del Caribe", DI, Vol. 21, March 1976, pp. 87-107.

61. Bolivia acceded to the "Declaración de Bogotá" on 18 August 1967.62. Grupo Andino M.C.C.-CARIFTA y otros Documentos, Caracas, 1971, pp. 7-21.63. A short exposition of the organizational work of the Mixed Commission was

prepared by the National Department of P1anification of Colombia: "Antecedentesy principales caracteristicas y mecanismos del Acuerdo Subregional Andino", DI,Vol. 5, October 1969, pp. 117-119.

64. DI, Vol. 15, March 1974, pp. 398-404.65. DI, Vol. 24, March 1977, p. 163.66. Article 3, (a)to (h)(Historia Documental del Acuerdo de Cartagena, Lima, s/f,

p. 14). On the preferential treatment for Bolivia and Ecuador, see F. Salazar-Santos,"El Problema de las Desigualdades en la integración", DI, Vols. 22-23, July­November 1976, pp. 13-43 ; and in more general terms, F. Salazar-Santos, "AspectosJurídicos de la Integración Andina", DI, Vol. 13, July 1973, p. 153.

67. The Cartagena Agreement also created sorne auxiliary organisms, theCommittees : the Advisory Committee (Art. 19) and the Economic and SocialAdvisory Committee (Art. 22). Besides that, Decision 22 ofthe Commission providedfor the constitution of Councils, to take care of and to examine specific matters.

68. I. Morales-Paúl, "La Aplicación del Derecho Comunitario por el JuezNacional", DI, Vol. 15, March 1974, pp. 23-31 ; O. Padrón-Amaré, "Interés Nacionaly Control de Decisiones en un proceso de integración", DI, Vols. 18-19,pp. 39-45. ,

69. Francisco Orrego-Vicuña points out, as an example, the different interpre­tations of Decision 24 in Colombia and in Chile C'La Creación de un Tribunal deJusticia en el Grupo Andino", DI, Vol. 15, March 1974, p. 37).

70. Art. 31 (a); Art. 28, paras. 2 and 3; Art. 30; Art. 27; Art. 28, para. 1.71. F. Orrego-Vicuña, "Contemporary International Law in the Economic

Integration of Latin America. Problems and Perspectives", Colloquiurn 1971. HagueAcademy of International Law, Leyden, 1972, pp. 102-186.

72. M. Casanova, "Algunes aspectos del Derecho económico de integraciónregional en América Latina, con especial referencia al Derecho Andino", DI, Vol. 13,July 1973, pp. 29-30.

73. Article 1, Decision 24. Decision 24 has been modified by Decisions 37 and37-A (July 1970, 103, 109 and 110 (October-November 1976), 124 and 125IDecember 1977) (see C. González-Chaparro, "Las reformas al régimen andino deInversiones Extranjeras", DI, Vol. 24, March 1977, pp. 133-138).

74. Such inconveniences had been pointed out by the Interamerican JuridicalCommittee in a document dated 12 March 1971, Informe relativo a la Revisión,Actualización y Evaluación de las Convenciones interamericanas sobre PropiedadIndustrial (CJI-4, Washington, 1971, pp. 45-62) ;and Members of the CartagenaAgreement also acknowledged the need for a change of the traditional principies, intheir Second Meeting that took place in Lima, in February 1971 (see on this matterE. Aracama-Zorraquin, "El Derecho de las Patentes en América Latina. Estado actualy Perspectivas futuras", DI, Vol. 9, October 1971, pp. 76-77 ; E. White, "La Cuestiónde la propiedad industrial en América latina y su papel en el proceso de desarrollo eintegración económica", DI, Vol. 20, November 1975, p. 29 ; C. Correa, "El Derechode Marcas en América Latina", DI, Vol. 27, March 1978, p. 59).

75. Arts. lO and 73.76. Arts. 31 and 70.77. Art. 26.78. The existing similarity is mentioned in a Report prepared in 1971 by the

Instituto para la Integración de la América Latina (INTAL) under the title "El Temade la Empresa Multinacional en una Perspectiva Latino-americana (con referenciaespecial a los problemas organizativos y jurídicos de este tipo de empresas)", DI,Vol. 9, October 1971, pp. 132-133.

79. G. Fernández-Saavedra, "El Régimen de la Empresa Multinacional en el

162 G. Parra-Aranguren

Grupo Andino", DI, Vol. 11, October 1972, pp. 11-12; R. Lara-Velado, LasSociedades Multinacionales, Report presented to the Tenth Congress of the Hispanic­Lusitanian-American Institute of International Law that took place in Guanajuato,Mexico, 1974.

80. The Legal Departrnent of the General Secretariat of the Organization ofAmerican States, in a document dated 10 August 1973, mentions sorne corporativeaspects that every common régime should include (El Marco Juridico de las EmpresasMultinacionales, Washington, 1973, CIDIP/2, pp, 16-19).

81. S. M. Biocca, Sociedades Multinacionales y Extranacionales, Buenos Aires,1974, pp. 54-55; Fernández-Saavedra, arto cit., p. 31.

82. M. Casanova, "La Aproximación de las Legislaciones relativas a la migraciónlaboral y seguridad social en el Acuerdo de Cartagena", DI, Vols. 18-19, March­July 1975, pp, 13-14.

83. "Documento de Trabajo sobre la Revisión del Código Bustamante o Código deDerecho Internacional Privado" (J 964), Documentos, p. 360.

84. Informe sobre el Plan para el desarrollo y la Codificación del Derechointernacional público y del Derecho internacional privado, CJI-3, Washington, 1949.

85. Documentos, p. l.86. "Dictamen del Comité Juridico Interamericano sobre la posibilidad de Revisión

del Código Bustamante o Código de Derecho Internacional Privado" (J 95 1),Documentos, pp. 7-31.

87. Answers were sent by Cuba, the Dominican Republic, Ecuador, the UnitedStates of America and Uruguay (Documentos, pp. 39-54).

88. "Segundo Dictamen sobre la possibilidad de Revisión del Código Bustamante oCódigo de Derecho Internacional Privado" (J 952), Documentos, pp. 55-76.

89. Documentos, pp. 2-4.90. "Estudio Comparativo del Código Bustamante, los Tratados de Montevideo y

el Restatement of the Law of Conflict of Laws" (J 953) (Documentos, pp. 77-259).91. Documentos, pp. 260-287.92. Documentos, pp. 4-5.93. "Posibilidad de Revisión del Código de Derecho Internacional Privado (Código

Bustamante)", Documentos, pp. 301-336.94. "Dictamen del Comité Jurídico Interamericano sobre Revisión del Código

Bustamante" (961), Documentos, pp. 337-352.95. Documentos, pp. 5-7.96. "Dictamen del Comité Juridico Interamericano sobre la Revisión del Código

Bustamante" O966), Documentos, pp. 383-416.97. "Dictamen del Comité Jurídico Interamericano sobre armonización de

las legislaciones de los paises latinoamericanos sobre sociedades, debiendo encararseel problema de las sociedades de carácter internacional" O968), Documentos,pp. 461-494.

98. J. J. Caicedo-Castilla, El Derecho Internacional en el Sistema Interamericano,Madrid, 1970, pp. 193-207; A. H. Robertson, "Revision of the Charter of theOrganízation of American States", The International and Comparative Law Quarterly,Vol. 17, 1968, pp. 346-368; C. Sepúlveda, "The Reform of the Charter of theOrganization of American States", RCAD/, Vol. 137, l 972-II, pp. 83-142;C. Sepúlveda, El Sistema Interamericano: mudanza y Transición, Valladolid,Spain, 1973.

99. Documentos, p. 687.100. T. de Maekelt, Conferencia Especializada de Derecho Internacional Privado

(CIDIP-I). Análisis y significado de las Convenciones aprobadas en Panamá, 1975,Caracas, 1979, p. 33.

101. Proyectos de Convenciones y otros Documentos sobre los Temas I á 11 delProyecto de Temario de la Conferencia Especializada Interamericana sobre DerechoInternacional Privado, preparados por el Comité Juridico Interamericano en su periodoordinario de sesiones celebrado del 26 delulio al 27 de agosto de 1973, OEA/SER.K/ XXI.I.CIDIP/3.

Conflict 01 Laws Conventions in Latín America 163

102. G. Parra-Aranguren, "La Primera Conferencia Especializada Interamericanasobre Derecho Internacional Privado", Actas Procesales del Derecho Vivo, Caracas,Vols. 46-48, 1975, pp. 307-342.

103. H. Valladáo, "Convenciones aprobadas por la CIDIP-I : Derecho ComercialInternacional", Segundo Curso de Derecho Internacional organizado por el ComitéJuridico Interamericano (julio-agosto 1976), Washington, 1976, p. 274 ; H. Valladáo,Direito Internacional Privado, Vol. III, Rio de Janeíro-Sáo Paolo, 1978, pp. 32-33.

104. Under Article 7 ofthe Bustamante Code "each Contracting State will apply aspersonal laws those of the domicile, of the nationality or those that it has adopted orwill adopt in the future in its internal legislation".

105. J. E. Illueca, "Informe del Relator de la Comisión Primera, referente alPropeyecto de Convención Interamericana sobre Conflictos de Leyes en materia deLetras de Cambio, Pagarés y Facturas", Actas y Documentos de la ConferenciaEspecializada Interamericana sobre Derecho Internacional Privado (CIDIP), Vol. 1,Washington, 1975, p. 263 (Actas).

106. The failure to agree on such an important matter is examined in Chapter V.As to the advantages of the lex loci to govern capacity to enter into an obligation bymeans of a negotiable instrument, M. García-Calderón, La Capacidad Cambiaria enel Derecho Internacional Privado, Lima, 1951, p. 46; D. Opertti-Badán, "LaConvención de 1975 sobre Letras de Cambio. Proyecto de Convención del cn sobreCheques de Circulación Internacional", Cuarto Curso de Derecho Internacionalorganizado por el Comité Juridico Interamericano (julio-agosto 1977), Washington,1977, p. 401.

107. Maekelt, op. cit., p. 47.108. Opertti-Badán, arto cit., p. 403.109. Article 7 does not apply to penal consequences of such events.110. As a complement paragraph 2 of Article 10 declares: "Each State Party shall

inform the General Secretariat of the Organization of American States whether or notan invoice is considered to be a negotiable instrument under its law".

111. Actas, Vol. Il, pp. 134-139.112. Actas, Vol. 1, p. 357.113. J. E. Illueca pointed out that such a solution had been already established in

the Geneva Protocol (930), Actas, Vol. 1, pp. 287-291.114. See Chapter V for the results of the Second Interamerican Specialized

Conference on Private International Law.liS. Maekelt, op. cit., p. 59.116. The Interamerican Commission of Commercial Arbitration (IACAC), was

created to comply with Resolution XLI of the Seventh American InternationalConference, that took place in Montevideo in 1933 : its Rules of Procedure, asamended and in effect on l January 1978 follow almost word-for-word the text oftheUNCITRAL Arbitration Rules (P. Sanders "Procedures and Practices under theUNCITRAL Rules", The American Journal of Comparative Law, Vol. 27, 1979,pp. 453-468.

117. Actas, Vol. n, pp. 229-230.118. Opertti-Badán, arto cit., pp. 286, 291.119. As a complement Article 18 says : "The States Parties shall inform the

General Secretariat of the Organization of American States of the requirementsstipulated in their laws for the legalization and the translation of letters rogatory".

120. Opertti-Badán, arto cit., p. 300.121. They are solutions similar to those accepted by the conventions approved in

Vienna in 1961 and in 1963 (E. González-Lapeyre, "Informe del Relator de laComisión Segunda, referente al Proyecto de Convención Interamericana sobreExhortos o Cartas Rogatorias", Actas, Vol. 1, p. 310).

122. E. González-Lapeyre, "Informe del Relator de la Comisión Segunda, referenteal Proyecto de Convención Interamericana sobre Recepción u Obtención de Pruebasen el Extranjero", Actas, Vol. l., p. 123.

123. Maekelt, op. cit., p. 88.

164 G. Parra-Aranguren

124. Opertti-Badán, art .. cit., pp. 316-318.125. Actas, Vol. II, pp. 450-451.126. Maekelt, op. cit., pp. 97-98.127. Actas, Vol. II, pp. 160-167; pp. 411-426.128. The difference between the "federal clause" and "colonial clauses", as those

stipulated in sorne treaties of the last century, were expressly pointed out by DelegateJorge E. Illueca, in order to avoid any kind of rnisunderstanding (Actas, Vol. 1,pp. 280-28n

129. Maekelt, op. cit., pp. 102-104.130. Actas, Vol. II, pp. 247-249.131. CJI-27, pp. 11-13.132. CJI-29, pp. 10-11.133. CJI-21, pp. 12, 53.134. CJI-21, p. 36.135. CJI-24, pp. 4-5.136. CJI-27, p. 13.137. CJI-27, pp. 15-16.138. CJI-27 , p. 228.139. CJI-29, pp. 225-226.140. CJI-31, pp. 249-251,219-231,175-179,131-151,151-163,111-131 and

233-234.141. CJI-31, pp. 279-281.142. CJI-32, pp. 49-53, 35-47, 5, 36, 9, 92-99.143. CJI-36, pp. 39-50, 101-102.144. CIDIP-II/8, rev. 1, add. 1.145. CP/SA 327178.146. CIDIP-II/15, pp. 3-4.147. CIDIP-II/14, pp. 6-8.148. CP-Doc. 923179.149. CIDIP-II/15, p. 2.150. CIDIP-II/30, pp. 1-7.151. CIDIP-I1/25, pp. 1-2.152. CIDIP-II/32, pp. 2-10.153. CIDIP-II/64, pp. 3-4.154. CIDIP-II/82, pp. 20-21.155. CIDIP-II/56, pp, 4-7.156. CIDIP-II/61 rev. 1, pp. 1-2, and CIDIP-II/67, pp. 1-35.157. CIDIP-II/38, pp. 2-33.158. CIDIP-II/41, pp. 2-24.159. CIDIP-II/83, p. 5.160. CIDIP-II/43, p. 27. The Rapporteur's cornrnents were neither published nor

circulated during the Conference Sessions.161. CIDIP-II/80, pp. 30-54.162. CIDIP-II/49, pp. 2-15.163. CIDIP-I1/3I, pp. 3-5.164. CIDIP-II/3I, p. 6.165. CIDIP-II/35, pp. 11-16.166. CIDIP-II/40, pp. 5-8, 19-23.167. CIDIP-II/40, pp. 8-12.168. CIDIP-II/40, p. 27.169. CIDIP-II/40, pp. 11-29.170. CIDIP-II/46, pp. 4-18.171. CIDIP-II/35, pp. 2-10.172. CIDIP-II/40, p. 27.173. CIDIP-II/51, pp. 11-20.174. CIDIP-II/51, pp. 20-32; CIDIP-II/52, pp. 8-33.175. CIDIP-II/55, pp. 2-26.

Conflict of Laws Conventions in Latin Amerlca 165

176. CIDIP-II/51, p. 6.177. CIDIP-II/62, p. 2.178. CIDIPT-II/73, pp. 9-20.179. CIDIP-II/98, p. 3.180. CIDIP-II/62, pp. 23-26.181. CIDIP-1I173, pp. 2-5.182. CIDIP-1I173, pp. 5-9.183. CIDIP-II/52, pp. 2-8.184. CIDIP-II/58, p. 2.185. Commission 11, Doc. 26.186. CIDIPT-II/73, pp. 31-34.187. CIDIP-II/58, pp. 2-8.188. CIDIP-1I173, pp. 34-36.189. CIDIP-1I179, pp. 14-19.190. CIDIP-II/94, pp. 4-19.191. CIDIP-1I179, pp. 31-37.192. CIDIP-II/94, p. 20.193. CIDIP-1I179, p. 35.194. CIDIP-II/94, pp. 19-20.195. CIDIP-II/53, pp. 13-23.196. CIDIP-1I/59, pp. 4-25.197. CIDIP-1I171, pp. 2-15.198. CIDIP-II/98, pp. 3-4.199. CIDIP-II/98, pp. 4-8.200. CIDIP-II/94, pp. 2-22.201. The Minutes of the Session were neither published nor circu1ated during the

Conference Meetings.202. CIDIP-II/85, rev. 1, pp. 1-23.

166

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