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- - TITLE IV - VALIDITY OF FOREIGN JUDGMENT AND PUBLIC DOCUMENTS
    - - Chapter I – Recognition and enforcement of foreign judgments

Article 72

Concept of judgment

A judgment shall be understood to be any decision adopted by an equivalent court or authority of a State regardless of the denomination/name given to the proceeding from which it is derived, such as decree, ruling, order or writ of execution.

413. A wide and flexible definition of the word judgment is incorporated in order to make reference to the different categories of decisions likely to be recognised or enforced under the present provisions, which in principle include any decision on the merits of a case, both matrimonial sentences as well as decisions of any other type. Thus, instead of the term ruling, the term judgment is used, with a less precise legal meaning capable of encompassing disparate cases. In all cases, the definition must be combined with the existence of specific restrictions to the recognition and enforcement of some of those judgments, as well as with the circumstance that the extent of certain controls may be various according to the characteristics of the judgments. That same broad orientation is due to the use of the expression “court or equivalent authority”, so that it comprises the decisions of any authority that is attributed jurisdictional functions in matters of private law.

414. The definition of judgment used for these purposes corresponds to the focus adopted in the more modern international reference instruments in this area. In this sense, a similar definition can be found in article 4 of the Convention of 2005 on Agreements of Choice of Court Agreements adopted in the framework of the Hague Conference on Private International Law, as well as in article 23 of the Draft Convention on Jurisdiction and Foreign Judgments in Civil and Commercial Matters of 30 of October of 1999, draw up in the same institution. The criterion that inspires these rules is consistent with the prevailing content of the instruments on recognition and enforcement of rulings adopted in the European Union, already the Brussels Convention of 1968, whose more recent formulation is currently included in article 2.a) Regulation 1215/2012 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters or Brussels I Regulation (recast).

On the contrary, the approach adopted differs in part from that inspired in the Inter-American Convention on Extraterritorial Validity of Foreign Judgments and Arbitral Awards of 8 May 1979. In accordance with its article 1, the Convention permits that the States limit its application to the compensatory judgements involving property, whilst only providing that it can be applied to the judgments that end proceedings and the decisions of authorities which exercise some jurisdictional function when the States declare this when ratifying the Convention.

Commentary

Article 73

Recognition and enforcement in general

1. For a judgment to be recognised, it must produce in the State of origin the legal effect whose recognition is claimed in the requested.

2. For a judgment to be enforced, it must be enforceable in the State of origin.

3. Recognition or the enforcement may be postponed or refused if the judgment is the subject of an ordinary review in the State of origin or if the time limit for seeking ordinary review has not expired.

4. When a foreign judgment includes parts that are severable from the remainder, one or more of them shall be likely to be recognised or enforced separately.

415. For harmonising the practical necessity of the recognition of foreign judgments with the formal principle of the jurisdictional sovereignty, historically different theories have been developed, such as the notion of comity or international courtesy, the principle of respect for the rights acquired as the basis of the recognition of foreign judgments or the incorporation of foreign law, through the integration of the foreign judgement in national law. Without prejudice to the greater or lesser basic goodness of these theories the recognition is due to a practical objective, that justifies the application of the foreign law, since if the principle of territorial sovereignty of the State were brought to its ultimate consequence, the possibility of enforcing or giving validity to judgments not issued by its courts would never arise, which would be contrary to the reality and would suppress the international legal transaction and the legal relationships between nationals of different countries⁵⁴⁸. This practical objective is what justifies the general basis not only of private international law in its entirety but, in particular, of the area of the recognition of foreign decisions⁵⁴⁹.

The foreign nature of the judgments must be understood in its exclusive sense referring to all decisions pronounced in the exercise of a jurisdictional power other than Caribbean; this concerns a national court or an international instance (v.gr., an arbitral award proceeding from ICSID). There is no doubt of that each one of these cases leads to distinct recognition mechanisms. On the other hand, the term “foreign” judgment raises problems of definition in respect of the arbitral awards which, by their very nature, have a transnational nature, and open the possibility, without doubt with important consequences, of defining their foreign origin based on very disparate criteria, as we will have the opportunity to see. In summary, despite the term “foreign judgment”, which is used for initially defining the object of recognition, it must be used with an exclusive sense; indeed, the analysis of the problem principally takes as its centre of attention the recognition of the decisions pronounced by jurisdictional bodies of a foreign State.

It is usual to identify the notions of “recognition”, “exequatur” and “enforcement”⁵⁵⁰. This raises two problems. On the one hand, if the exequatur is identified with the recognition of decisions, it is logical that it exclusively concerns the recognition of final judicial decisions pronounced in contentious proceedings, since the exequatur is the mechanism provided, in ordinary law, for recognising this type of decisions. On the other hand, if we bear in mind that this exequatur proceeding preferably rests on the objective of managing the enforceability of these decisions, it is understood that this is the effect that will capture the attention. All of this is of interest only if the specific meaning of each of the expressions concerned is demonstrated.

It should be emphasised that the substantive review is a principle antithetic to the function of the recognition, which is undermined by a process of “interiorisation” or “appropriation”, and not of recognition, the latter being inspired in the postulate of international cooperation and in the optimisation of the continuity of the legal relationships in space. If, as a condition of recognition, the authority of origin has to be competent, the substance of the decision must not be reviewed. The circumvention of the substantive review implies converting the recognition into mere of formal control or homologation proceedings, which prevents the court from considering again the facts and recitals those of the foreign decision, limiting the causes of refusal to the specific conditions of the recognition.

416. Initially, the recognition consists in obtaining from the forum the constitutive, binding or res judicata, enforceable or registration effect of a foreign decision. Not all the final judicial decisions pronounced in contentious proceedings produce an enforceable effect, given that many of them have a purely constitutive nature, in particular, those referring to the modification, extinction or determination of the civil status, which do not require further enforcement proceedings. But the final judgments pronounced in contentious proceedings are also not the only ones capable of generating an enforceable, constitutive or registration effect. Arbitral awards, judicial settlements, acts of non-contentious, protective or provisional measures, or non-final judgments, other such decisions are likely to produce all or some of the effects cited and, consequently, to provoke a problem of recognition, as they do not have a final or contentious nature, or for not being, by nature, judgments⁵⁵¹.

For the recognition in the forum of the res judicata, enforceable, constitutive or registration effects of each of these decisions, a series of mechanisms or types of recognition must be articulated. For the final judicial decisions pronounced in contentious proceedings, an exequatur proceeding is the usual mechanism, which, surely, can be extended to other types of decisions, but the said mechanism is not an enforcement proceeding; it not does it aim to grant enforceability to a foreign judgement. Through the exequatur proceeding: a) the foreign judgment is standardised as an enforcement title (declaration of enforceability), not enforced, as this would require a new proceeding before a different authority; and, b) only the recognition of the res judicata effect of a foreign decision can be sought without requiring enforcement, or it can be sought for the decision to be converted into a title with a view to its registration, which appears to indicate that the exequatur it is not exclusively a proceeding for granting enforceability to the foreign judgment either.

417. Recognition has the following missions:

To procure the enforceability in the forum of a foreign judgement, a characteristic effect of the compensatory judgments. For obtaining this effect, there are two fundamental alternatives: to request the enforcement proceeding directly, in which case the same body that decides on the enforcement is competent for deciding on the recognition, or rather, to request an autonomous exequatur proceeding, in which case the recognition is decided on beforehand, creating an enforcement title, which may be used subsequently in the normal enforcement proceeding.
To procure, in the forum, the mandatory or res judicata effect of the foreign judgement, by virtue of which its content binds the jurisdictional authorities and bodies of the forum and the principle of non bis in idem is triggered, a principle which prevents not only the initiation in the forum of new proceedings with identical parties, subject matter and cause, even as an incidental question in all types of proceedings.
To obtain the registration effect of the foreign judgments pour their entry in registers. The foreign judgment can comply with the formalities for registration in official registers.

The foreign judgment, like any other foreign public document, may have evidential value apart from the recognition, if it fulfils legalisation and translation requirements⁵⁵². As a public document, the foreign judgment may be used as an element of proof in open proceedings in the forum, although the evidential value in no case covers the operative part of the judgment, but only the elements of fact considered to have been proved. It permits the recognition of the evidential value of a judgment, even when the res judicata, enforceable or constitutive effect of the same cannot be obtained, for not meeting one of the conditions required for its recognition. That the foreign decision, as a public document, serves as an element of proof concerning the facts clarified in it is obviously not a problem. However, this excludes the res judicata effect and the enforceable effect from the foreign decision. In other words, the evidential value of the public document that serves as substratum of the foreign judgment permits only its utilisation as means of proof of the related facts. The operative part of the judgment may not, consequently, be used for recognising its res judicata, enforceable or constitutive effects. However, among the evidential value of the foreign judgment, one must recognise incidentally the res judicata or constitutive effect of the judgment in question.

418. The fundamental block in the area of the recognition relates to the foreign judicial decisions pronounced in contentious proceedings and in the area of private law. Usually, the question is limited to the recognition of “final judgments”. In general in the national systems it is required that the judgments be final as a condition for their recognition in contentious proceedings, although there are notable exceptions, as we will see. In general, the regulatory legal proceeding of the matter under discussion is included in bilateral international treaties or in the domestic procedural legislation.

As the first option is practically absent in the countries of the OHADAC area, it is necessary to address these shortcomings in the present Model Law.

419. The recognition basically means making it possible that the procedural effects (especially, the res judicata and constitutive validity) of the decision also operate in the requested State, achieving its extraterritorial validity. There has been a significant doctrinal debate about under what legal system the scope of the effects of the recognised decision is determined: that of the State of origin (theory of scope), that of the requested State (theory of equivalence), or a combination of both (theory of accumulation). At the current time, with the tendency to temper the approaches, the debate has lost intensity and part of its significance, which is manifested above all in relation with the limits of the res judicata.

In relation with the scope of the recognition, the fundamental question regards the limits within which the scope of the effects of the judgment within the State of origin. To be enforceable, the judgment must also be enforceable in the legal system of origin.

The establishment of a domestic source of regulation and its adaptation to the current requirements, in a way that guarantees the coordination with the undertakings assumed in the framework of international cooperation, must bear in mind the specific conditions and objectives of the present Law, far removed from the specific context to which the convention-based regimes respond.

420. Paragraphs 2 and 3 of this rule reflect how a model has been opted for in which the recognition and enforcement is not generally limited to the judgment decisions, although the possibility of refusal is considered if the judgment has been subject to an ordinary appeal in the State of origin or if the period for filing it has not expired.

The final character makes reference to the notion of res judicata in the formal sense, i.e. the impossibility to lodge an appeal against the judgement within a same proceeding. Once this limit is established, it is up to the foreign procedural law to determine how and subject to what conditions a decision is not susceptible to further contestation or appeal in the same proceeding. The cases that produce the formal res judicata effect in the Caribbean legal system must not be used by analogy. The proof of the finality of the decision is obtained through the enforcement title or public document indicating that the judgment is final. This proof must be brought by whoever requires the recognition, or through the certification or acknowledgement of the Court that has pronounced the judgment. Likewise, the analysis of the questions of recognition is limited to matters of private law, and consequently with a functional assessment of the content of the private international law it is circumscribed to the legal-private civil and commercial relationships.

421. It is an approach that facilitates advances in the regulation of the system applicable to certain categories of judgments and acts, in respect of which a very restrictive criterion predominates in some legal systems. Thus, it occurs in relation with the judgments relevant to the scope of the non-contentious, the treatment of the cross-border validity of the provisional measures, the enforceable public documents and judicial transactions.

The systematic rejection of the validity of the provisional measures is not appropriate in light of the interests that, at least in specific situations, justify the cross-border validity of such judgments. The mere substitution of the requirement of finality by the requirement that the judgment is not susceptible to recourse to the ordinary courts makes possible the validity of the provisional measures that satisfy that requirement. The systematic rejection of provisional measures damages highly relevant interests, in particular, in the case of measures adopted in the framework of matrimonial proceedings - as happens in respect of the custody of children or maintenance obligations -, whilst it makes it impossible to value adequately the convenience of facilitating the validity of the provisional or protective measures granted by the court that hears the principal matter.

422. The paragraph 4 proclaims a principle that enjoys wide acceptance in the comparative view, by establishing that the separable parts of a foreign judgment will be likely to be recognised or enforced. Similar provisions are found, among other instruments, in article 15 of the Hague Convention of 2005 on Choice of Court Agreements or in article 48 of the Convention of Lugano of 2007 Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters.

Commentary

Article 74

Causes of refusal of recognition and enforcement of judgments

Foreign judgments shall not be recognised:

if the recognition is manifestly contrary to public policy;
if the document which instituted the proceedings or an equivalent document was not notified to the defendant in a regular manner and in sufficient time and in such a way as to enable him to arrange for his defence, unless the defendant entered an appearance and presented his case without contesting notification in the court of origin, provided that the law of the State of origin permitted notification to be contested;
if they conflict with the provisions established in article 9 of the present Law or if the jurisdiction of the foreign court was not based on one of the grounds provided for in Chapter II of this Law or on an equivalent reasonable connection;
if proceedings between the same parties and having the same cause of action are pending before a Caribbean court and those proceedings were the first to be instituted;
if they are irreconcilable with a judgment given between the same parties in the Caribbean.
if they are irreconcilable with a judgment given in another State involving the same cause of action and between the same parties, provided that this judgment fulfils the conditions necessary for its recognition in the Caribbean and was adopted first or its recognition had already been declared in the Caribbean.
if they do not fulfil the conditions required in the country in which they were given to be considered as authentic and which the Caribbean laws require for their validity.

423. Possible grounds for refusal of the recognition and enforcement or, from a positive perspective, the controls to which the validity of a foreign ruling is subordinated are provided in an exhaustive manner in the text of the Law. As a consequence, recognition of the foreign judgment should not be refused for grounds other than those provided for in article 74. This implies that there should not be a substantive review of the foreign ruling, as well as that certain mechanisms traditionally existing in some legislation must be rejected, such as that of the control of the law applied by the court of origin or the reciprocity⁵⁵³.

The rejection of the reciprocity is based on its unsuitability for the basis of the system of recognition and enforcement concerning private law. Unlike what can occur in international legal cooperation in areas of public law, especially in penal matters, the use of reciprocity as a general criterion assumes a disproportionate and unreasonable impairment for the private interests, which are fundamental in the regulation of the extraterritorial validity of judgments in civil and commercial matters, which does not go against the national interests in question either, and does not appear to justify its possible value as a means of exerting pressure on the foreign authorities. It not only undermines the position of the private individuals affected, but is also manifestly contrary to the national interest in providing legal protection which ensures certainty, avoiding instable situations. In consequence, the use of reciprocity in the framework of the recognition and enforcement of decisions has been disappearing from the more advanced systems in this field.

424. Over the years, a certain consensus has developed at the international level about the conditions required for the recognition and enforcement of foreign judgments. An essential component of all the regimes for recognition is the control of public policy, whose content is related to the protection of the fundamental principles of the legal system of the requested State, through which typically it is closely connected with the respective constitutional systems.

In this area, public policy, which must be understood as an exceptional mechanism with restricted interpretation, operates to the extent that the specific effects claimed by the foreign judgment are totally incompatible with the essential principles and values of the legal system of the requested State. From here, the restrictive formulation of this requirement, in line with which a drafting of generalised use already exists in the more advanced international agreements and the national legislations in this matter excludes the recognition only when it is “manifestly contrary to public policy”. A similar wording of this type of regulation is found, for example, in article 5.1 of the Hague Convention on Recognition and Enforcement of Decisions Relating to Maintenance Obligations of 1973, and in article 23.2.d) of the Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children of 1996.

425. The autonomy of the exequatur proceeding implies that only the exceptions that make reference to the enforceable conditions for the recognition can be opposed and not those arising from the action brought in the main proceedings conducted in the foreign legislation. This consequence of the autonomy of the proceeding does not mean that a possible control is radically excluded regarding the substance of the foreign decision. The said control of the decision is only excluded if, effectively, it is also excluded in the specific exceptions and conditions of the exequatur proceeding, an affirmation that it is not always possible to maintain. In other words, the specific conditions of the autonomous exequatur proceeding may imply a control as regards the substance.

In this setting, we should refer very succinctly to some questions arising from the proceeding for the recognition of foreign judgments:

As regards the parties' rights of defence. As a condition of the recognition, respect for the procedural guarantees and the parties' defence and the lawfulness of proceedings carried on abroad must be guaranteed. The justification of this is to guarantee the adversarial principle and the possibility that the defendant has been able to defend itself effectively in the proceeding opened abroad. This requirement is basically confined to the lawfulness and sufficiency of the notification of the claim; but, for that reason, all cases of guilty non-appearance in court, by strategy or for convenience, would be outside of the scope of the condition, consisting in the absence of the defendant in the originating proceeding due, not to a defect or unlawfulness in the location, but to the defendant own lack of interest⁵⁵⁴. The possibility must arise that, in certain cases, the default can be addressed through subsequent acts of the defendant which reveal their will to accept the judgment whose enforcement is concerned. The judicial origin of the foreign judgment, its contentious nature and, consequently, the enforceable and res judicata effects that the final judgment will entail the necessity of a control that guarantees the right to the effective judicial protection and to a proceeding with all of the defence guarantees.
Public policy: The limit of public policy deals with the protection of fundamental social or economic values of the forum, at a specific moment in history. The timeliness of this corrective, just like in its operation regarding the foreign law, requires that it is used in accordance with the values existing at the time of the recognition, not at the time of pronouncing the foreign judgment⁵⁵⁵. In its economic aspect, the economic public policy may act to refuse recognition to foreign judgments related to industrial property, participation in companies, foreign currency payments, etc.
Control of the law applied by the judge of origin: This condition consists in making the recognition conditional on the fact that the foreign court has applied the same law to the case as had been applied by the courts of the forum, at least that the final result coincides. The utilisation of this control has been welcomed to a certain extent in the laws or case-law in different systems but it is a summarily restrictive and distrustful condition, it appears not to be reconciled with the spirit of cooperation that prevails in the convention-based system of recognition.
Authenticity of the decision: The proof of the authenticity of the foreign enforceable judgment presented for the recognition, and the fulfilment of the conditions of proof required regarding public documents to prevail in the Caribbean, constitute a prior condition which, as is obvious, operates regardless the regime for the recognition.
Control of the international jurisdiction: As such, the control is confined to the general jurisdiction of the foreign court that has pronounced the decision, i.e. to its jurisdiction for hearing a case of private international transactions, without achieving the control of the domestic jurisdiction of the court which, in particular, has pronounced the judgment subject to recognition. Lack of international jurisdiction of the judge of origin is crucially important in the evaluation of a possible voluntary contempt of court of the defendant, which would then be justified. This justification is based on the adequate protection of the procedural justice for the defendant; protection of the exclusive jurisdictions of the courts of the forum and in the specific nature of the recognition. The basis of the control advocates for its investigation ex officio or, at least, for an active participation by the judge of the exequatur against the silence of the parties in the proceeding.
Absence of conflict with a judicial decision or a proceeding pending in the requested State. The recognition of a foreign judicial decision is not possible if, prior to the request for the exequatur, a final decision on the same case, with the same parties and identical cause of action, or which is simply incompatible with the foreign decision, already exists in the Caribbean. It is not strictly a matter of asserting the res judicata effect of the Caribbean decision, as this is an exception that has no place in the exequatur proceeding, which is a mere homologation proceeding. The raison d'être for this condition is none other than the maintaining of the balance of the domestic system and its coherence, vis-à-vis the plurality of solutions that may involve the sanction of a same event obtained before different jurisdictions. For that reason, it should be insisted that, for the conflict to exist, there is no requirement for an absolute identity of subject matter, parties and cause between both proceedings, but a simple substantive incompatibility. This exception to the recognition may also be implemented when a final judicial decision does not exist in the requested State, but a proceeding pending between the same parties does, with the cause of action as the proceeding that was resolved by the foreign judgment. In this case, the criterion of the temporal priority may have a certain importance.
Recognition of the constitutive effect of non-contentious acts. Taking into consideration the basic distinction made in the preceding paragraph, the fundamental problem rests on the determination of the regime for recognition of the constitutive effect of certain non-contentious acts. Supporters of a substantive evaluation of the intervention of the authority, integrated in the substantive rule, not only deny the need for the exequatur, but also the specific problem of recognition. In their opinion, the question is reduced to the determination of the law applicable to the constitution of the act, and their approach inherited from the criticisms of the doctrines of the rights acquired. The use of rules of applicable law does not mean that we are faced with a question of applicable law. These rules may likewise serve as rules for recognition. In fact, the utilisation of the rules of applicable law for resolving the effects of recognition is extensible in certain systems to the constitutive judgments, which in this way circumvent the normal mechanisms of exequatur. This alternative can simply be summarised in a concise manner: “I will recognise to the non-contentious acts the same effects that are recognised to that same institution by the competent legal system that is designated by the rule on applicable law”. The rule on applicable law is used for locating the competent legal system that will have to serve as a reference for defining the effects of the act in question. The notion of “competent legal system” is, as such, is wider than that of “applicable law”⁵⁵⁶.

426. In the operability of public policy in the framework of the recognition and enforcement of decisions the procedural dimension plays a key role, which basically requires ensuring that the guarantees, that form the essential content of the fundamental right to effective judicial protection or the right to due process, have been respected in the original proceedings. One has opted to continue the frequent tendency in the convention-based and comparative view of identifying this as an autonomous condition of the recognition (in respect of public policy). The requirement of lawfulness of the location of the defendant ensures that the parties have been notified of the start of the proceedings and have had sufficient time for preparing the defence of their interests, especially when they have not appeared before the court.

This requirement of recognition appears formed in a manner that is excluding its operability in the cases of guilty non-appearance in court or for mere convenience of the defendant in the original proceeding. The regime thus designated substantially coincides with that established in the majority of the convention-based regimes, both multilateral as well as bilateral, as illustrated, for example, in article 9.c.i) of the Hague Convention on Choice of Court Agreements of 2005.

427. A central part of the system established is the control of the jurisdiction of the court of origin. A reflection of the meaning of this control is the adoption in the American context of the Inter-American Convention on Extraterritorial Validity of Foreign Judgments and Arbitral Awards, agreed in La Paz on 24 May 1984 in the framework of the CIDIP, although its content has significant shortcomings. It is not appropriate either in this aspect to take as a reference the system established in the European Union, in particular in the framework of the Brussels I Regulation, since this only deals with the reciprocal recognition of judicial decisions, i.e. between courts of States members, whose scope practically eliminates this control in the recognition and enforcement phase, as a consequence of the unification of the regulations of international jurisdiction of the States members and the significance of the principle of confidence in community law.

In this area, the comparative analysis of legislations shows the progressive improvement in the national legislations of the mere technique of the bilateralisation of the regulations of international jurisdiction established in the system of the forum, although significant differences in the national legislations and the international texts should be appreciated. One has opted for a manner which reflects the imperative criterion that the recognition may only be denied by the lack of jurisdiction of the foreign court when the exclusive jurisdiction of the courts of the State requested has been infringed, or the submission to these by the parties, and when no reasonably close connection exists between the dispute and the court that pronounces on the same.

428. The necessity of guaranteeing the coherence of the legal system of the requested State prevents a foreign judgment from being recognised when it is irreconcilable with the validity of a decision of the forum or foreign court previously recognised in the forum. It is a widely accepted criterion in the international agreements and the national legislations in this matter. Representative in this sense are article 9.f) and g) of the Hague Convention on Choice of Court Agreements of 2005, as well as article 34.3 and 4 of the Convention of Lugano of 2007 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters. Among the national legislations, the following should be noted by way of example: article 27.2 of the Swiss Private International Law Act of 1987, article 25.5 of the Belgian Private International Law Act of 2004, as well as in United States the section 4(c)(4) of the Uniform Foreign - Country Money Judgments Recognition Act of 2005.

In addition, the present rule specifies as the limit to the recognition of foreign judgments the existence in the forum of a pending proceeding. In this respect, it should be understood that the unconditional prevalence of the pending proceeding in the forum on the decisions already pronounced abroad is not an appropriate and respectful solution of the interests in question. There are reasons for limiting the scope, as grounds for refusal of the recognition, of the existence of a proceeding handled in the requested State and which can give rise to a ruling irreconcilable with the foreign decision regarding the situations in which the proceeding was instituted in the requested State. This option is without doubt more adequate than a more restrictive criterion which would affirm the absolute prevalence of the proceedings handled in the requested State, which would facilitate the implementation of restrictive strategies to the recognition of judgments.

429. It should be noted that no other condition may be added to the present article. In particular, this article maintains the refusal to the control of the law applied in the original decision with which the rule is coherent with the role assigned to the control of the jurisdiction of the court of origin and with the autonomy between the rules on recognition and those on the applicable law and the requirement of lack of fraud in the same.

Commentary

Article 75

Proceedings.

1. The foreign judgments shall be recognised by operation of the law and without any special procedure being required. The recognition may be requested incidentally, by way of counterclaim, cross-claim, or of defence.

2. Without prejudice to the provisions of paragraph 1, any party interested may request to the competent authority to decide on the recognition or non-recognition of a foreign judgment. In this case, the recognition proceeding shall be that established by the procedural legislation for the exequatur.

3. For the exequatur proceeding, the courts of first instance shall have jurisdiction. The decision of the court of first instance shall be subject to appeal.

430. These rules are based on a clear differentiation between the recognition, declaration of enforceability and the phase of enforcement in the strict sense. The recognition makes reference to the validity in the requested State of the procedural effects of the foreign judgments. It is also possible that the foreign judgment has certain effects apart from the recognition, such as the evidential value or others connected to public registrations. On the other hand, it is possible that in the requested State the legal system the recognition of the judgment is a prerequisite for it to have certain effects regardless of the effects it has in the State of origin, in particular, to the extent that the recognition is required so that its registration entry can take place. When the enforceable validity of a ruling is sought to be asserted outside of the State of origin, it is necessary in all cases to obtain a declaration of enforceability (it can only be proceeded to the enforcement in the strict sense after obtaining this) through the exequatur proceeding.

431. In the comparative and international view, a marked tendency is observed not to subordinate the recognition of the foreign judgments to special or exequatur proceedings in all cases, unlike what occurs with regard to the declaration of enforceability, for which such proceedings are indeed considered necessary. The requirement for a special proceeding excludes the possibility of directly asserting the procedural validity of a foreign judgment before a Caribbean authority (in particular, by incidentally invoking its existence before the judicial authority that deals with a proceeding or by appearing directly before the agent of the register if an entry in the register based on the judgment is sought).

This solution greatly undermines the cross-border validity of the foreign judgments, by requiring in all cases a general declaration of recognition to be obtained through the proceeding established for obtaining the declaration of enforceability. However, an important qualitative difference exists between the cases in which an assertion of the enforceable validity of a foreign judgment is sought and the others in which only the assertion of the recognition of its procedural validity, typically of the constitutive and res judicata validity is sought. That qualitative difference is based on the fact that if the assertion of the enforceable validity of a foreign decision is sought a special proceeding (exequatur) is required in all cases, in addition to the conditions that operate in the recognition, the enforceable validity of the judgment in the State of origin is also required as a prerequisite.

432. It becomes necessary not to generally require a special recognition proceeding, which then permits the so-called incidental recognition (of the constitutive or res judicata validity), as well as directly invoking the foreign judgment before the authorities (such as the agent of the register into which the entry is sought) of the State in which they are to be asserted. This requires, among other things, to evaluate not only the differences of the situations in which the enforcement (or a general declaration of recognition) is sought and which always requires the exequatur, as well as analysing the necessity of adapting the legal system to the increase of situations for which the recognition of the foreign decisions is relevant.

433. The admission of the automatic and incidental recognition does not exclude the affirmation of the opportunity of making reference to the necessity of a proceeding that makes it possible to obtain a general declaration of recognition. On certain occasions, despite automatic and incidental recognition being possible, there is an interest in obtaining a judicial declaration of recognition which is binding erga omnes, in a manner that a proceeding is necessary for processing that general declaration of recognition. In the regimes that admit the automatic recognition, it is common for the mechanism established for obtaining the declaration of enforceability also to operate for permitting the general declaration of recognition. This solution leads to assimilation between the general proceeding for recognition and the proceeding for declaration of enforceability.

434. The rule also pays attention to the determination of the competent bodies for hearing the proceeding for recognition (general declaration of recognition) and enforcement (declaration of enforceability) of the foreign judgments. Thus it is based on the principle that the applicable rules are procedural rules. In favour of the devolution of the jurisdiction and its attribution to the bodies that generally hear the cases at first instance it should be noted that this is the most current criterion in the international instruments that provides for this aspect, in addition to being a coherent solution with the expansion of the situations in which the cross-border validity of the judicial rulings is raised as a consequence of the increase of the private international legal transactions. Reasons of validity, rational adjustment to the necessities of the judicial organisation and the expectations of the parties to court proceedings advise the proposed solution.

Commentary

Article 76

Adoptions pronounced abroad

Adoptions or similar institutions of foreign law whose effects for the parentage connection are not substantially equivalent to those established in Caribbean law shall not be recognised.

435. In the case of the adoptions, without prejudice to the application of the generally established causes of refusal of recognition, it is considered appropriate to establish an additional control. The verification of the equivalence of the adoption granted abroad with that provided in the legal system of the requested State assumes particular interest and complexity in relation with the recognition in this area, in particular when this State only considers full adoption, comparable to natural parentage, which generally produces the extinction of the legal connections between the adopter and the previous family and which by its essence is irrevocable.

So that the adoption granted abroad can be recognised as such, it is required that those same effects are produced in the legal system of origin. It is, therefore, a circumstance that gives particular meaning in relation with the limitation of the validity of the simple adoptions or not completely full ones, which are frequent in the comparative view, although with very different configurations. In this context, it is relevant to specify the legislation determining the effects of the adoption granted abroad (v.gr., if it is a simple or full adoption), which seeks to be recognised in the other country.

436. The adoption is normally granted as a result of a national act that gives rise to the essential and direct effects of the legal situation created, determining its scope, which must be departed from when evaluating the validity in the Caribbean of the adoption granted abroad. The extension of effects implies taking as a point of departure the effect that the judgment produces in the country of origin: in relation with the scope of the constitutive validity, the law applied to the substance of the case by the organ of origin is the determining criterion. In principle, the rights and obligations of adoptee and adopter, the scope of the legal connections existing between the adopter and their former family, as well as their connection with the new family and the possible revocability of the adoption, are determined by the law applied to the granting of the adoption by the originating body in the decision that is concerned.

The recognition in the requested State as a full adoption may not take place if the effects of the adoption granted abroad do not correspond with those provided for the adoption in the legal system of the requested State. In all cases, the fact that the figure granted abroad whose effects do not correspond with the adoption regulated in the requested State cannot be recognised as a full adoption, does not exclude, however, the possibility that it is recognised with the effects that are specific to the State of origin.

437. In the States that are party to the Hague Convention of 1993 Protection of Children and Co-operation in Respect of Intercountry Adoption, adoptions will have to be in accordance with the preferable nature under the Convention. In accordance with its article 2, the Convention covers only adoptions which create a permanent parent-child relationship, whilst article 26 governs the effects that the recognition of the adoption has in the framework of the Convention, which must be connected with the important role that the authorities of the requested State play in the mechanism of cooperation to which it is subjected, in which an adoption can be declared to be in accordance with the Convention and which possibly benefit the regime of recognition established in the Convention.

Commentary

Article 77

Immunity from enforcement.

1. In accordance with the rules of public international law on immunity from enforcement, the property and the assets that the foreign State has in the Caribbean territory may not be subject to coercive measures, unless the creditors demonstrate that they are connected with an activity of an exclusively economic nature. The public bodies and entities of a foreign State whose assets are connected with a relevant economic activity shall only benefit from the immunity from enforcement to the extent that they provide documentary proof that the debt was contracted for the account of this State for reasons related to the exercise of the national sovereignty.

2. The immunity from enforcement of the diplomatic agents authorised in the Caribbean shall be determined by the international treaties to which the Caribbean is party and, failing that, by the international custom.

3. The immunity from enforcement of the international organisations to which the Caribbean is party shall be defined by their constitutive treaties. The agents of these organisations shall enjoy immunity in the terms specified by these treaties.

438. The problem of immunity of the State in respect of the coercive measures adopted in relation with a proceeding before a court occurs in the majority of the cases after resolving the question relating to the jurisdiction of the court of the State of the forum over the foreign State, or if the submission of immunity has been rejected⁵⁵⁷. However, the immunity from enforcement also included interlocutory or preventive measures, i.e. that a court can impose, including before deciding whether or not it has jurisdiction, with regard to property ad fundandam jurisdictionem. The immunity from enforcement is therefore restricted to determining if, through the fact of being located in the State of the forum, certain property or assets of the foreign State will be able to be subjected to coercive measures ordered by a court of that State, such as embargos, attachments or enforcements. In practice, it has maybe greater importance than the own immunity of jurisdiction, both for the defendant State as well as for the private individual who has opted to bring a case before a domestic court. The first has a comprehensible interest in not losing control of its property, for example, the accounts opened by its embassy or by its government in banks of the State of the forum, and the second, in turn, has the reasonable expectation, if it concerns proceedings in which no immunity of jurisdiction exists, that the court will adopt necessary measures so that a possible decision in its favour can be executed and produce tangible effects.

In effect, if the courts of a State have been declared to have jurisdiction for hearing a claim against a foreign State, it may occur, on the one hand, that the claimant requests that those protective coercive measures, such as embargo, be adopted against the property of this State. On the other hand, once the judgment in favour of a private individual is pronounced, the problem of knowing whether this judicial decision may be executed against the property of a foreign State is raised, i.e. if the foreign State possesses immunity from enforcement in both cases. For this, it should be noted that this immunity has followed a parallel evolution to that of the immunity from jurisdiction, by passing from the absolute to the relative; although it should be taken into account that this has occurred in a more restrictive manner than in the case of the immunity from jurisdiction.

439. In this the matter, one should refer to the system established by the Convention adopted by the G.A. in 2004 which stipulates as a basic rule the prohibition of any coercive measures against property of a foreign State, both pre-judgment (article18) and post-judgment (article19). Although in both cases certain exceptions are established: 1) when the foreign State has expressly consented to the taking of enforcement measures by international agreement or contract. 2) when property is reserved or affected for the satisfaction of the claim which is the object to that proceeding. In addition, it should be noted, regarding the post-judgment enforcement measures, that enforcement measures will be taken if the property is specifically in use by the State for other than non-commercial government purposes, is in the territory of the State of the forum and has a connection with the claim which is the object of that proceeding or with the entity against which the proceeding was directed (article 19 c). Supplementally, article 21 of the Convention specifies that the following categories will be considered as property in use or intended for use for other than non-commercial government purposes:

“property, including any bank account, which is used or intended for use in the performance of the functions of the diplomatic mission of the State or its consular posts, special missions, missions to international organizations or delegations to organs of international organizations or to international conferences;
property of a military character or used or intended for use in the performance of military functions;
property of the central bank or other monetary authority of the State;
property forming part of the cultural heritage of the State or part of its archives and not placed or intended to be placed on sale;
property forming part of an exhibition of objects of scientific, cultural or historical interest and not placed or intended to be placed on sale.”

With this regulation, the private individual is obliged to provide documentary proof that the property on which they seek the enforcement does not benefit from the immunity. But the enumeration of the cases in which a property of the State immunity. This is not excessive given that it is based on the information from international practice. And, on the other hand, it has the merit of resolving a question debated in the past, concerning the bank accounts of the external bodies of a foreign State.

Finally, in articles 22 to 24 of the Convention certain questions of a procedural nature in relation with jurisdictional immunities are regulated. Among these, on the one hand, it is indicated that in the absence of such a convention or special arrangement, all the procedural notifications of the courts of the forum related to the institution of a proceeding are not to be issued by the judge or court directly to the foreign State, but have to be sent “by transmission through diplomatic channels to the Ministry of Foreign Affairs of the State concerned”. It should be understood that the notification is “deemed to have been effected by receipt of the documents by the Ministry of Foreign Affairs”. Article 23 is supplemented, on the other hand, with rules with respect to the time limit for instituting a proceeding in absentia of the foreign State or for it to be able to appeal against the judgement pronounced.

Commentary

²¹⁶ General observation: The term “Caribbean” of the present Law refers to the State and the relations with the State that decides to adopt the Model Law.

²¹⁷ CONC.: Arts. 1.2 and 2 of the Panamanian Code of PIL; art. 1 of the Swiss PIL Act; art. 1 of the Italian PIL Act; art. 2 of the Belgian Code of PIL; art. 1 of the Polish PIL Act; art. 1 of the Bolivian draft law; art. 1 of the Dominican draft law; art. 1 of the Puerto Rican draft law; art. 1 of the Argentine draft law; art. 1 of the Colombian draft law; art. 2 of the Mexican draft law; art. 1 of the Uruguayan draft law.

²¹⁸ Establishing the international regime of private law relationships, the objective part contrasts with the subjective part relating to the condition of persons, i.e. nationality and condition of foreigners.

²¹⁹ Vid. infra commentary on art. 3.2.

²²⁰ It no doubt borrowed it from the conventions of the Hague relating to procedure (for instance: 1st March 1954 [civil procedure], 15 November 1965 [notifications], 18 March 1970 [securing evidence], 1st February 1971 [with a protocol dated the same day: recognition and enforcement of judgments] or 25 October 1980 [access to justice]), but presently gives it a more general bearing. Vid. Regulation (EC) n° 595/2008 and Regulation (EC) n°846/2007.

²²¹ Regulation (EC) n° 44/2001, Art. 1, § 2 (EU n°1215/2013, art. 1 §2); Lugano Convention dated 16 September 1988, Art. 1 (Lugano Convention dated 30 October 2007, Art. 1 §2); Dominican draft law, art. 2.

²²² CONC.: Art. 2 of the Dominican draft law.

²²³ CJEC 22 February 1979, case 133/78, Gourdain c. Nadler

²²⁴ Ibid.

²²⁵ CONC.: Art. 1.1 of the Panamanian Code of PIL; art. 1.2 of the Swiss PIL Act; art. 2 of the Italian PIL Act; art. 2 of the Belgian Code of PIL; art. 2557.3 of the Romanian code of civil procedure; art. 1 of the Venezuelan PIL Act; art. 4 of the Treaty of the Hague of 11 May 1951 introducing a Uniform Law on Private International Law for Benelux; art. 7.1 of the Vienna convention of 11 April 1980 on Contracts for the International Sale of Goods; Art. 18 of the Roma Convention of 19 June 1980 on the Law Applicable to Contractual Obligations; art. 38 of the preliminary draft of the Convention of the Hague Conference of 1999 on Jurisdiction and Foreign Judgments in Civil and Commercial Matters; art. 2 of the Argentine draft law; art. 3 Dominican draft law; art. 3, g) and h) of the Mexican draft law; art. 1.1 of the Uruguayan draft law.

²²⁶ See the developments devoted to the matter by A. Giardina, “Le convenzioni internazionali di diritto uniforme nell'ordinamento interno”, Riv. dir. int., 1973, p.101; S. Bariatti, L'interpretazione delle convenzioni internazionali di diritto uniforme, Padova, Cedam, 1986, K. Parrot, L'interprétation des conventions de droit international privé, Nouvelle bibliothèque de thèses, Dalloz, 2006, pp. 256 et seq.

²²⁷ CONC.: Art. 2 of the Belgian Code of PIL; art. 2557.3 of the Romanian Civil Code; art. 4 of the Dominican draft law.

²²⁸ CONC.: Arts. 20 and 21 of the Swiss PIL Act; art. 4 of the Belgian Code of PIL; art. 2570 of the Romanian Civil Code; arts. 11 to 15 of the Venezuelan PIL Act; art. 1.2 of the Uniform Benelux Law; art. 6, b) to g) of the Argentine PIL draft code; arts. 16, 17 and 34 of the Colombian draft law; art. 5 of the Dominican draft law; art. 4 of the Puerto Rican draft law.

²²⁹ According to Lupoi, Trusts, Milano, Giuffrè, 1997, p. 257 et seq., Anguilla, Antigua and Barbuda, the Bahamas, Barbados, Belize, Bermudes, the British Virgin Islands, the Cayman Islands, Saint Kitts & Nevis, Saint Vincent and Turks and Caicos have followed this model; vid. also art. 122 of the Belgian Code and Book 10, art. 142 of the Dutch code.

²³⁰ Art. 2: “For the purposes of this Convention, the term “trust” refers to the legal relationships created - inter vivos or on death - by a person, the settlor, when assets have been placed under the control of a trustee for the benefit of a beneficiary or for a specified purpose.

A trust has the following characteristics:

a) the assets constitute a separate fund and are not a part of the trustee's own estate;

b) title to the trust assets stands in the name of the trustee or in the name of another person on behalf of the trustee;

c) the trustee has the power and the duty, in respect of which he is accountable, to manage, employ or dispose of the assets in accordance with the terms of the trust and the special duties imposed upon him by law.

The reservation by the settlor of certain rights and powers, and the fact that the trustee may himself have rights as a beneficiary, are not necessarily inconsistent with the existence of a trust.”

Art. 3: “The Convention applies only to trusts created voluntarily and evidenced in writing.”

²³¹ The Brussels Convention of 27 September 1968, as amended by the Luxemburg Convention of 9 October 1978, had made a different choice which was approved by the Brussels I and II Regulations: legality of prorogation of jurisdiction (Art. 23, §4 and 5 of Brussels I) in the absence of exclusive jurisdiction (Art. 22) of the courts of the domicile of the trust (Art. 60, §3) which is determined by the private international law of the State member of which the judge is assigned. Obviously these solutions are only relevant in matters of conflict of jurisdiction and their liberalism can be justified by the fact that they only used in the European Union Club and not on an international level.

²³² It may seem even more disconcerting in Common Law, in which it covers an origo which may be overshadowed by a domicilium or even several successive domicilia and may reappear when those are abandoned.

²³³ G. Levasseur, Le domicile et sa détermination en droit international privé, Paris, Rousseau & cie, éditeurs, 1931.

²³⁴ CONC.: Arts 4 and 21 LOPJ (Spain); arts. 3 and 4 of the Italian PIL Act; art. 39 of the Venezuelan PIL Act; art. 15 of the Panamanian PIL Act; art. 251 of the Nicaraguan code of civil procedure; art. 6 of the Dominican draft law; arts. 145 et seq. of the Mexican draft law; art. 7 of the Colombian draft law.

²³⁵ Vid. on this institution, M. Philonenko, “La caution ‘judicatum solvi'”, Journ. dr. int., 1929, pp. 609 and 896; on its suppression in French law, G. Droz, “La sentinelle perdue ou la disparition subreptice de la caution judicatum solvi”, Rec.gén.lois, 1973, p. 281.

²³⁶ Vid. C.A. Arrue Montenegro, L'autonomie de la volonté dans le conflit de jurisdictions, Paris, LGDJ, 2011.

²³⁷ “Private relationships are termed international when they relate to more than one legal order via their constituent elements, corresponding to the person of their subjects, to their subject matter or to their creation”.

²³⁸ CONC.: the Vienna Convention of 18 April 1961 on Diplomatic Relations; the Vienna Convention of 24 April 1963 on Consular Relations; United Nations Convention of 2 December 2004 on Jurisdictional Immunities of States and their Property; Foreign Sovereign Immunities Act, 21 October 1976 (United States); State Immunity Act, 20 July 1978 (United Kingdom); Foreign Sovereign Immunities Act, 6 October 1981 (South African Republic); Foreign Sovereign Immunities Act, 16 December 1985 (Austria); art. 7 of the Dominican PIL draft law; art. 15 of the Panamanian PIL draft law.

²³⁹ Vid. infra, commentary on article 77.

²⁴⁰ Vid. P. Andrés Sáenz de Santa María, “El estatuto internacional del Estado: La inmunidad soberana del Estado extranjero (Jurisdicción y ejecución)”, Cuadernos de Derecho Judicial, 1994, vol. XI, pp. 91 223; H. Fox, The Law of State Inmunity, Oxford, Oxford UP, 2002.

²⁴¹ The first paragraph did not consider it useful to mention the elements or components of the sovereign State, subject of international law. These States cannot claim the benefit of the privilege to refuse jurisdiction in so far as they are entitled to exercise on the international level the prerogatives belonging to the sovereign State itself. The immunity claimed is thus that of the sovereign State.

²⁴² Comp. Foreign Sovereign Immunities Act 1976 (United States).

²⁴³ Comp. State Immunity Act 1978 (s.3, et seq. 3).

²⁴⁴ Vid. the analogous position of French law, Cass. 1st civil chamber 22 June 1969, Société Levant Express, Rev. crit. dr. int. pr., 1970, p. 102, note P. Bourel, Grands arrêts, n°47.

²⁴⁵ CONC: Arts. V and VI of the Geneva Convention of 1961 on International Commercial Arbitration; art. II.3 of the New York Convention of 1958; arts. 8 and 16 of the UNCITRAL Model Law; art. 41.1 of the Washington Convention of 1955; art. 7 of the Swiss PIL Act; arts. 9, 30 and 32 of the Arbitration Act of 1996; arts. 1679 and 1697 of the Belgian judicial code; arts. 1448, 1465 and 1506 of the code of civil procedure (France); art. 202 of the Constitution of the Republic of Panama; arts. 1022 and 1052 of the code of civil procedure (Netherlands), arts. 1032 and 1040 of the ZPO; art. 6.2 of the 1998 ICC Rules; art. 23 of the UNCITRAL Rules; art. 23.1 of the LCIA Rules; art. 15 of the AAA Rules.

²⁴⁶ This designation comes from the German legal language and is traditionally used with regard to arbitration although in the case in point it refers to the courts rather than jurisdiction.

²⁴⁷ The arbitration agreement can be affected by a hidden defect which nullifies the agreement. It may also not apply to the dispute for not engaging one of the parties or because the interests involved are not arbitrable. These cases of inefficiency are governed by arbitration law, excluded from the Model Law (art. 2, iii).

²⁴⁸ This appearance is also deemed sufficient by many national laws and conventional law.

²⁴⁹ It is the case in Panamanian and French law; vid. C.-A. Arrue Montenegro, L'autonomie de la volonté, op. cit., n° 139 et seq., p. 82 et seq.

²⁵⁰ The issue of validity or of the scope of appointment of the arbitrator may arise as an incidental question before the juge d'appui in case of difficulties for setting up the arbitration court.

²⁵¹ Art. 1465 of the French code of civil procedure: “Only the arbitral tribunal has jurisdiction to give rulings on any objections in respect to its jurisdiction”.

²⁵² An interpretation favourable to the effect can associate Art. VI of the Geneva Convention of 21 June 1961 to these rights.

²⁵³ CONC: Art. 22 Regulation (EC) EC n°44/2001; art. 24 Regulation (EU) n°1215/2012; art. 22 of the Organic Law 6/1985, of 1 July, of the judicial power (Spain); arts. 1078, 1079 and 1081 of the Romanian code of civil procedure; art. 8 of the Dominican draft law; art. 8 of the Colombian draft law.

²⁵⁴ H. Gaudemet-Tallon, Compétence et exécution des jugements en Europe, 4th ed., 2010; J.C. Fernández Rozas and S. Sánchez Lorenzo, Derecho internacional Privado, n. 43 et seq. Vid. also the Dominican draft law, art. 8 et seq.

²⁵⁵ Contra, the Mexican draft law, art. 148, litt. g), h) and j), in which the rules of international jurisdiction (which, it seems, are non-exclusive) designate the Mexican court having special jurisdiction.

²⁵⁶ G. Droz, Compétence judiciaire et effets des jugements dans le Marché commun, Bibl. Dr. int. pr., vol. xiii, Dalloz 1972, n° 165; P. Gothot and D. Holleaux, La Convention de Bruxelles du 27 Septembre 1968, Paris, 1985, n°37.

²⁵⁷ Art. 17, §4: “Where a Caribbean court is seised of a claim which is principally concerned with a matter over which the courts of another State having adopted the present law have exclusive jurisdiction by virtue of Article 9, it shall declare of its own motion that it has no jurisdiction.”

²⁵⁸ Vid. S. Corneloup, La publicité des situations juridiques. Une approche franco-allemande du droit interne et du droit international privé, Paris, LGDJ, 2003.

²⁵⁹ The CJEC, on 15 November 1983, case C. 288/82, Duinjstee, precised that in the Community meaning, the category of “disputes in proceedings concerned with the registration or validity of patents”, subject to exclusive jurisdiction, does not encompass disputes on ownership of rights, contracts of the said rights nor their infringement. The same CJEC (13 July 2006, GAT, case C-4/03) decided, without taking into account the particular configuration of the action for declaration of non-infringement, which inverts the position of the parties in the procedure, that the exception of patent nullity arising as an incidental question on counterfeit is a matter of exclusive jurisdiction; vid. M. E. Ancel, « L'arrêt GAT, une occasion manquée pour la défense de la propriété industrielle en Europe », Rev. Communic. Comm. Electronique, May 2007, ét. n°10, M. Wilderspin, « La compétence jurisdictionnelle en matière de litiges concernant la violation des droits de propriété intellectuelle », Rev. crit. dr. int. pr., 2006. p. 777.

²⁶⁰ On the difficulties raised by the plural definition of the domicile of companies and natural persons and of the trust, vid. infra, under art. 5.

²⁶¹ Rapport Jénard, JOCE, C 59, 5 March 1979, p. 35.

²⁶² CONC.: Art. 5 of the Swiss PIL Act; art. 4.1 of the Italian PIL Act; art. 19 of the Panamanian Code of PIL; art. 22.2 LOPJ (Spain); art. 6 of the Belgian Code of PIL; arts. 43 et seq. of the Venezuelan PIL Act; art. 4 of the Tunisian PIL Act of 27 November 1998; arts. 17 and 18 of the Argentine draft law; art. 108 of the Bolivian draft law; art. 7 of the Colombian draft law; the Dominican draft law; art. 155 of the Mexican draft law; art. 1066 of the Romanian code of civil procedure; art. 59 of the Uruguayan draft law; art. 23 of the Brussels I Regulation; the Hague Convention of 30 June 2005 on Choice of Court Agreements.

²⁶³ N. Coipel-Cordonnier, Les conventions d'arbitration et d'élection de for, op. cit.; C. A. Arrue Montenegro, L'autonomie de la volonté, op. cit., n. 55 et seq.; A. Briggs, Agreements on jurisdiction op. cit.

²⁶⁴ Belgian PIL code, Art. 6§2; vid. also the Romanian code of civil procedure, Art. 1066 §3. The Swiss private international law Act, Art. 5. 3, implies such a power of the courts to disclaim jurisdiction if one of the parties is part of the Swiss legal order or if the Swiss law is the law applicable.

²⁶⁵ Art. 1108 of the French Civil Code.

²⁶⁶ CJEC, 3 July 1997, Benincasa, JDI 1998. 581, note Bischoff; Cass. 1st civil chamber, 8 July 2010, Bluebell Trading Company, D. 2010. Pan. 2333, obs. L. D'Avout, JCP 2010. 2246, obs. T. Clay. But it obviously does not mean that both distinct regimes cannot contain the same cause of nullity.

²⁶⁷ C. 3, 19, 3, ubi rem in actio; C. 3, 13, 2, de jurisd. omn. jud.

²⁶⁸ CONC.: Art. 3 of the Italian Act n°218; Art. 40 of the Venezuelan Act; Art. 3 of the Tunisian Act of 27 Nov. 1998; Art. 5 of the Belgian PIL code; Art. 1065 of the Romanian code of civil procedure; Art. 7 of the Colombian draft law; Art. 10 of the Dominican draft law; Art. 56 of the Uruguayan draft law; Art. 2 of the Brussels I Regulation.

²⁶⁹ The Roman law founded the forum rei on the domicilium but also on the origo, without clearly indicating how cases were divided between those two connecting factors, vid. C.F.v. Savigny, Traité de droit romain, §355.

²⁷⁰ Inst. I, 17, de legitima patronorum tutela.

²⁷¹ M. Virgos Soriano, F. J. Garcimartín Alférez, Derecho procesal internacional. Litigación internacional, Civitas, 2000, n.87.

²⁷² CJEC, 27 September 1988, Kalfelis (case 189/87)

²⁷³ CJEC, 27 October 1998, La Réunion européenne (C-51/97), 13 July 2006, Roche Nederland BV (C-539/03), Reicsh Montage AG (C-103/05) and 11 October 2007, Freeport Plc (C-98/06).

²⁷⁴ CONC.: Art. 5 of the Swiss PIL Act; Art. 4 of the Act nº 218 (Italy); Art. 7 of the Belgian PIL code; Art. 47 of the Venezuelan Act; Art. 17 of the Argentine draft law; Art. 17 of the Panamanian draft law.

²⁷⁵ CONC.: Art. 22.3 LOPJ (Spain); art. 12 of the Dominican PIL draft law; Brussels II bis Regulation.

²⁷⁶ P. Buisson, La notion de for exorbitant (étude de droit international privé), Thèse Paris II, 1996.

²⁷⁷ P. A. de Miguel Asensio, “La ausencia y la declaración de fallecimiento en Derecho internacional privado”, REDI, vol. XLVII, 1995-2, pp. 41-70.

²⁷⁸ CONC.: Art. 22.3 LOPJ (Spain); art. 13 of the Dominican draft law; Brussels I bis Regulation.

²⁷⁹ Art. 7.1 a) Regulation (EU) nº 1215/2012 12 December 2012 (Brussels I bis Regulation).

²⁸⁰ M. Requejo Isidro, “Incertidumbre sobre la materia delictual en el Convenio de Bruselas de 27 de septiembre de 1968: método de delimitación y determinación del tribunal competente”, La Ley (Unión Europea), nº 5709, 21-1-2003, pp. 6-9.

²⁸¹ G.A.L. Droz and H. Gaudemet Tallon, “La transformation de la convention de Bruxelles du 27 septembre 1968 en Règlement du Conseil concernant la compétence judiciaire, la reconnaissance et l'exécution des décisions en matière civile et commerciale”, Rev. crit. dr. int. pr., 2001 pp. 601 et seq.

²⁸² Vid. V. Fuentes Camacho, Los contratos de seguro y el DIPr en la Unión Europea, Madrid, Civitas, 1999.

²⁸³ CONC: Art. 3 of the Swiss PIL Act; Art. 65, §1, d) of the Portuguese code of civil procedure; Art. 3136 of the Cc of Quebec; Art. 6 of the Dutch code of civil procedure; Art. 11 of the Belgian PIL code; Art. 1069 of the Romanian code of civil procedure; Art. 19 of the Argentine draft law; Art. 110 of the Bolivian draft law; Art. 7 of the Colombian draft law; Art. 14 of the Dominican draft law; Art. 156 of the Mexican draft law; Art. 56.8 of the Uruguayan draft law.

²⁸⁴ V. Retornaz and B. Volders, « Le for de nécessité: tableau comparatif et évolutif », Rev. crit. dr. int. pr., 2008, p. 225; L. Corbion, Le déni de justice en droit international privé, Puam, 2004.

²⁸⁵ CONC.: Art. 10 of the Swiss PIL Act; Art. 10 of the Italian PIL Act; Art. 22.5 LOPJ (Spain); Art. 43 of the Venezuelan PIL Act; Art. 1074 of the Romanian code of civil procedure; Art. 111 of the Bolivian draft law; Art. 20 of the Argentine draft law; Art. 15 of the Dominican draft law; Art. 56.9 of the Uruguayan draft law.

²⁸⁶ CONC.: Art. 11 of the Act n. 218; Art. 57 of the Venezuelan Act of 6 August 1998; Art. 10 of the Tunisian Act of 27 November 1998; Art. 12 of the Belgian PIL code; Art. 1070 of the Romanian code of civil procedure; Art. 147 of the Mexican draft law; Art. 15, ult. al. of the Panamanian draft law.

²⁸⁷ Comp. Art. 36. 2. 3° of the code of civil procedure.

²⁸⁸ A. Nuyts, L'exception de forum non conveniens. Étude de droit international privé comparé, Bruylant-LGDJ, 2003; C. Chalas, L'exercice discrétionnaire de la compétence juridictionnelle en droit international privé, PUAM, 2000.

²⁸⁹ CONC: Art. 7, ult. al. of the Colombian draft law, Art. 17 of the Dominican draft law; Art. 15 of the Panamanian draft law.

²⁹⁰ CONC.: Art. 58 of the Venezuelan PIL Act; Art. 18 of the Panamanian PIL code; Art. 9 of the Swiss PIL Act; Art. 7 of the Italian PIL Act; Art. 14 of the Belgian PIL; Art. 1075 of the Romanian code of civil procedure; Art. 46 of the Argentine draft law; Art. 160 of the Mexican draft law; Art. 18 of the Panamanian draft law; Art. 57 of the Uruguayan draft law; Art. 10 of the Colombian draft law; Art. 27 of the Brussels I Regulation.

²⁹¹ J.A Silva, “Una codificación jus internacional privatista para México...”, AEDIPr, t. VI, 2006, p. 1221.

²⁹² Vid. supra, Art.18.

²⁹³ But it should also be taken into account when doing so that the lack of jurisdiction and any deficiency under this law does not necessarily lead to the court declining jurisdiction. It is the effective dual proceedings that cause the problem.

²⁹⁴ Vid. H. Gaudemet-Tallon, Compétence et exécution des jugements en Europe, 4th ed., 2010, n. 324 et seq.

²⁹⁵ This last solution concurs with the one that was refused by the Gasser ruling, CJEU 9 December 2003 (C-116/2), but that was imposed as from 10 January 2015 by the recast Brussels I Regulation, Art. 31.2.

²⁹⁶ CONC.: Art. 1076 Romanian code of civil procedure; Art. 19 of the Panamanian draft law; Art. 28 of the Brussels I Regulation.

²⁹⁷ CONC.: Arts. 34 and 35 of the Swiss PIL Act; Art. 1071 of the Romanian code of civil procedure; Art. 146 of the Mexican draft law; Art. 20 of the Dominican draft law; Art. 112 of the Bolivian draft law; Art. 20 of the Uruguayan draft law.

²⁹⁸ Vid. infra commentary on art. 44 of the present Law.

²⁹⁹ It is also the case in the systems built around national law as the personal law.

³⁰⁰ CONC.: Art. 16 of the Venezuelan PIL Act; art. 26 of the Panamanian PIL Code; art. 3083 (Civil Code of Quebec); art. 34 of the Belgian PIL Code; arts. 20 and 23 of the Italian PIL Act; art. 12 of the Austrian PIL Act; art. 11 of the Polish PIL Act; art. 21 of the Dominican draft law; art. 21 of the Bolivian draft law; art. 17 of the Uruguayan draft law; art. 18 of the Colombian draft law.

³⁰¹ Cf. J.C. Fernández Rozas and S. Sánchez Lorenzo, Derecho internacional privado, 7th ed., Cizur Menor, Civitas-Thomson-Reuters, 2013, p. 348, with warnings concerning the other virtues of this approach.

³⁰² Art. 18 of the Venezuelan PIL Act.

³⁰³ Art. 12.1 of the Cuban Civil Code; art. 3 of the Dominican Civil Code; French Departments and territorial communities in the Caribbean area: legacy of the solutions of French law.

³⁰⁴ The Bustamante Code (art. 7) considers both as possible personal laws.

³⁰⁵ Vid. infra commentary on art. 42 of the present Law.

³⁰⁶ The first and paradigmatic case was that decided by the French Cour de Cassation in the judgment of 16 January 1861, in the Lizardi case, where a Mexican citizen who sought to assert his lack of capacity derived from the Mexican law in France for avoiding fulfilment of the contracts concluded in that country. The Cour de Cassation ruled personal law is unarguable and held that sr. Lizardi had capacity by virtue of French law (B. Ancel, Y. Lequette, Les grands arrêts de la jurisprudence française de droit international privé, 5th. Ed., Dalloz, Paris, 2006, pp. 39-40 and the observations, pp. 40-46).

³⁰⁷ Art. 36 of the Swiss PIL Act or art. 13 of Regulation (EC) No. 593/2008, of the European Parliament and of the Council, of 17 June 2008, on the law applicable to contractual obligations (Rome I) provide that “In a contract concluded between persons who are in the same country, a natural person who would have capacity under the law of that country may invoke his incapacity resulting from the law of another country, only if the other party to the contract was aware of that incapacity at the time of the conclusion of the contract or was not aware thereof as a result of negligence”. This provision is also in force in some territories of the Caribbean (vid. the Report on the French legacy).

³⁰⁸ J.C. Fernández Rozas and S.A. Sánchez Lorenzo, Derecho internacional privado, 7th ed., Cizur Menor, Civitas-Tomson-Reuters, 2013, p. 350.

³⁰⁹ F. de A. Sancho Rebullida, “El concepto del estado civil”, Estudios de Derecho público y privado ofrecidos al Profesor Dr. D. Ignacio Serrano y Serrano, Valladolid, 1965, pp. 741-810, pp. 797-798.

³¹⁰ Vid. supra, commentary on art. 1 of the present Law.

³¹¹ Art. 17 of the Venezuelan PIL Act.

³¹² Vid. A. Bucher, Personnes physiques et protection de la personnalité, 5th ed., Basel, Helbing Lichtenhahn Verlag, 2009.

³¹³ CONC.: Art. 24 of the Italian PIL Act; art. 16 of the Polish PIL Act; art. 22 of the Dominican draft law; art. 11 of the Mexican draft law.

³¹⁴ Vid. infra, commentary on art. 53 of the present Law.

³¹⁵ There are not very many examples in comparative law, but an extremely graphic one is the judgment of the German Supreme Court (BGH) of 1 December 1999 (Marlene Dietrich case), in which that the German Supreme Court had to decide on whether or not, for German law, the right to control the commercial exploitation of one's own personality was part of the inheritance. The only daughter and heiress of Marlene Dietrich sued a musical producer who permitted a company to use the name and the image of the actress for a special edition of an automobile and authorised the manufacturer of the Xerox photocopiers to use the pseudonym “Blue Angel” in an advertisement. The claimant alleged the violation of the personality rights of the deceased; she called for the cessation of the activities described and the compensation for the damage incurred, until then denied by German courts in similar cases. The BGH had to decide on two fundamental questions (a) if the personality rights, besides protecting intangible values, also protect economic interests (b) if such rights can or cannot be transmitted to the heirs after of the death of their holder.

³¹⁶ Vid. infra commentary on art. 53 of the present Law.

³¹⁷ CONC.: Art. 37 of the Swiss PIL Act; arts. 37 to 39 of the Belgian PIL Code; art. 13 of the Austrian PIL Act; art. 15 of the Polish PIL Act; arts. 12 to 15 of the Mexican draft law; art. 23 of the Dominican draft law; art. 19 of the Colombian draft law.

³¹⁸ However, in the case of the aforementioned Convention, the personal law chosen is the law of the nationality and not the law of the domicile.

³¹⁹ The examples in the jurisprudence of the European Court of Human Rights are numerous. Although it cannot be radically affirmed that the idea favourable to the continuity of the name based on the interests of the person is absolute (against the cases in this sense, ECHR 22 February 1994, Burghartz, or ECHR 19 February 2005, Ünal -Tekeli, there are also those that appreciate to a greater extent the interest of the State: ECHR of 7 December 2004, Mentzen alias Mencena; ECHR 17 February 2011, Golemanova) there certainly exists a preponderance of the right to the identity and the continuity of the name when the State's interests that advocates the change involve a significant prejudice to the person, who is prevented from continuing to use a name with which they feel identified.

³²⁰ M.A. Lara Aguado, El nombre en Derecho internacional privado, Granada, Comares, 1998, pp. 32-40.

³²¹ Vid. The classical approaches of W. Wengler, “Die Vorfrage im Kollisionsrecht”, RabelsZ, 1934, pp. 148-251 and P. Lagarde, “la règle de conflict applicable aux questions préalables”, Rev. crit. dr. int. pr., 1960, pp. 459-484.

³²² An exception is provided by art. 6 of the Venezuelan PIL Act, according to which, “The prior, preliminary or incidental issues that may arise with the main issue need not necessarily be resolved in accordance with the law applicable to the latter”. As can be seen, the rule is an open rule that does not offer a restrictive solution.

³²³ A different solution is that prescribed by art. 1 of the above-mentioned Munich Convention of 1980.

³²⁴ Vid. supra, art. 24 of the present Law and its commentary.

³²⁵ Vid. the generic regulation of art. 5 of the Venezuelan PIL Act.

³²⁶ CONC.: Art. 41 of the Swiss PIL Act; art. 41 of the Belgian PIL Code; art. 22 of the Italian PIL Act; art. 14 of the Austrian PIL Act; art. 14 of the Polish PIL Act; art. 24 of the Dominican draft law; arts. 17-19 of the Mexican draft law; art. 25 of the Bolivian draft law; art. 19 of the Uruguayan draft law; art. 38 of the Colombian draft law.

³²⁷ CONC.: Art. 27 of the Panamanian PIL Code; arts. 154 and 155 PIL of the Swiss PIL Act; art. 3087 (Quebec Civil Code); art. 25 of the Italian PIL Act; art. 1 of the Belgian PIL Code; arts. 17-21; of the Polish PIL Act; art. 25 of the Dominican draft law; art. 26 of the Bolivian draft law; art. 33 of the Uruguayan draft law; art. 45 of the Colombian draft law.

³²⁸ Registered office, vid., for example, art. 3.5.b) of the Companies Act of Bahamas of the year 1992, or art. 168 of the Companies Act of Barbados: “A company must at all times have a registered office in Barbados”.

³²⁹ Vid. infra, the commentary on art. 50 the present Law (Incapacity).

³³⁰ Vid. infra, art. 52.

³³¹ CONC.: Arts. 161 to 163 of the Swiss PIL Act; art. 112 of the Belgian PIL Code.

³³² Vid. the articles 226 to 231 of the Costa Rican Commercial Code, where it was provided that the transfer of the registered office of foreign companies to Costa Rica, understood registered office to be a place where the company's Board of Directors holds its meetings or where the centre of corporate management is situated (art. 231).

³³³ Vid., v.gr., art. 111 of the Colombian Commercial Code, where it is required that the deed of incorporation of the company be entered in the commercial register of the chamber of commerce with jurisdiction in the place where the company establishes its principal domicile, which may only be fulfilled if this domicile is located in the Republic of Colombia; this idea is confirmed by art. 469 of its Commercial Code, where it is established that “companies incorporated in conformity with the law of another country and with principal domicile abroad are foreign companies”. Art. 18.10 of the Costa Rican Commercial Code is even clearer since it provided that the domicile of the company must be stated in the deed of incorporation of any commercial company which “must be a current and certain address within Costa Rican territory in which notification can be validly delivered” or the already cited art. 168 of the Companies Act of Barbados which requires that a “registered office” of the company in Barbados must exist at all times.

³³⁴ Vid., v.gr., arts. 201 to 209 of the Cayman Islands Companies Law, where the form in which a company registered abroad can transfer its headquarters to the Cayman Islands is governed.

³³⁵ CONC.: Art. 44 of the Swiss PIL Act; arts. 46 and 47 of the Belgian PIL Code; art. 3088 (Civil Code of Quebec); arts. 27 and 28 of the Italian PIL Act; arts. 48 and 49 of the Polish PIL Act; art. 21 of the Venezuelan PIL Act (“The capacity for marriage and the requirements of matters of substance are governed for each of the future spouses by the Law of their respective domicile”); arts. 38 and 39 of the Panamanian PIL Code; arts. 16 and 17 of the Austrian PIL Act; art. 27 of the Dominican draft law; arts. 38 to 40 of the Bolivian draft law; art. 22 of the Uruguayan draft law; art. 21 of the Colombian draft law.

³³⁶ It is the basic thesis of P. Orejudo Prieto de los Mozos, La celebration y el reconocimiento de la validez del matrimonio en el Derecho internacional privado español, Navarra, Aranzadi, 2002, which has general validity beyond its concrete projection on a specific system.

³³⁷ Vid. in this sense the rules governing the systems related to the British legacy as regards Bermuda or Antigua.

³³⁸ Vid. infra, art. 32 and its commentary.

³³⁹ Take into account the special provision contained in art. 2 of the New York Convention of 20 December 1962 on Consent to Marriage, Minimum Age for Marriage and Registration of Mar-riages, in force in various Caribbean countries.

³⁴⁰ Vid. infra, commentary on art. 68 of the present Law.

³⁴¹ Vid. the systems related to the Dutch legacy, where a certain manifest opposition is raised in the matter, precisely of the marriage between persons of the same sex, regarding which the Netherlands were pioneers in Europe.

³⁴² Vid. the systems related to the French legacy. France has recognised marriage between persons of the same sex from the Loi no. 2013-404 du 17 mai 2013 ouvrant le mariage aux couples de personnes de même sexe.

³⁴³ Vid. the classic quote by L. Raape, “Les rapports juridiques entre parents et enfants comme point of départ d'une explication pratique d'anciens et de nouveaux problèmes fondamentaux du droit international privé”, Recueil des Cours de l'Académie de Droit International de la Haye, t. 50 (1934-IV), pp. 399-544, p. 511, where with the statement “mariage vaut mariage” the unique and universal concept of marriage is postulated, which, without doubt, does not exist today.

³⁴⁴ In Cuba simply Cuban law is applied (vid. art. 13.1º and First Special Provision of the Civil Code).

³⁴⁵ Regarding consent: Bustamante Code art. 36 on personal law; id. Guatemala.

³⁴⁶ Vid. infra, art. 67 of the present Law.

³⁴⁷ CONC.: Art. 48 of the Swiss PIL Act; art. 3089 (Civil Code of Quebec); art. 48 of the Belgian PIL Code; art. 29 of the Italian PIL Act; art. 18 of the Austrian PIL Act; arts. 51-53 of the Polish PIL Act; art. 28 of the Dominican draft law; art. 43 of the Bolivian draft law; art. 24 of the Uruguayan draft law.

³⁴⁸ M. Amores Conradi, “Las relaciones entre cónyuges en el nuevo Derecho internacional privado de la familia: valores jurídicos y técnicos de reglamentación”, ADC, vol. 40, nº 1, 1987, pp. 89-138.

³⁴⁹ Vid. supra, commentary on art. 26 of the present Law.

³⁵⁰ And it continues being the personal law in different systems of the OHADAC region: in the French Departments and Territorial Communities in the Caribbean Area, as a result of the French legacy; vid. also the solution of Cuba and the Dominican Republic.

³⁵¹ CONC.: Arts. 52 to 57 PIL of the Swiss PIL Act; arts. 3122-3124 (Civil Code of Quebec); arts. 49 to 54 of the Belgian PIL Code; art. 30 PIL of the Italian PIL Act; art. 41 of the Panamanian PIL Act; art. 19 of the Austrian PIL Act; art. 29 of the Dominican draft law; art. 44 of the Bolivian draft law; art. 25 of the Uruguayan draft law; arts. 51 to 58 of the Mexican draft law; arts. 23 to 27 of the Colombian draft law. Art. 22 of the Venezuelan PIL Act has renounced to integrate this modern view of the conflictual autonomy.

³⁵² G.A.L. Droz, “Les nouvelles règles de conflit françaises en matière de régimes matrimoniaux (Entrée en vigueur de la Convention de La Haye du 14 mars 1978 sur la loi applicable aux régimes matrimoniaux)”, Rev. crit. dr. int. pr., 1992, pp. 631 et seq.; A. Bonomi, M. Steiner (eds.), Les régimes matrimoniaux en droit comparé et en droit international privé. Actes du Colloque de Lausanne du 30 septembre 2005, Geneva, Librairie Droz, 2006.

³⁵³ Vid. the systems related to the French legacy.

³⁵⁴ Vid. the monograph by E. Zabalo Escudero, La situación jurídica de la cónyuge viudo en el Derecho internacional privado e interregional, Aranzadi, Pamplona, 1993.

³⁵⁵ CONC.: Art. 30 of the Dominican draft law; arts. 64 and 65 of the Mexican draft law.

³⁵⁶ It is, for example, the general solution that the Bustamante Code provides in its art. 47: “The nullity of marriage is governed by the same law that the intrinsic or extrinsic condition giving rise to it is subject to”. Notwithstanding this, the Code provides additional specific provisions.

³⁵⁷ Vid. supra, commentary on art. 29.2º of the present Law.

³⁵⁸ Vid. supra, commentary on art. 29.3º of the present Law.

³⁵⁹ Vid., v.gr., art. 50 of the Bustamante Code.

³⁶⁰ J.C. Fernández Rozas and S.A. Sánchez Lorenzo, Derecho internacional privado, 7th ed., Cizur Menor, Civitas-Thomson-Reuters, 2013, p. 430.

³⁶¹ CONC.: Art. 61 PIL of the Swiss PIL Act; art. 3090 (Civil Code of Quebec); arts. 55 to 57 of the Belgian PIL Code; art. 31 PIL of the Italian PIL Act; art. 54 of the Polish PIL Act; art. 43 of the Panamanian PIL Code; art. 20 of the Austrian PIL Act; art. 31 of the Dominican draft law; arts. 60-63 of the of the Mexican draft law; art. 48 of the Bolivian draft law; art. 26 of the Uruguayan draft law; Council Regulation (EU) no. 1259/2010 of 20 December 2010 implementing enhanced cooperation in the area of the law applicable to divorce and legal separation.

³⁶² The conjunction between choice of law (certainly limiting the a priori form to a predetermined list) and the law applicable to the defect of choice is clearly a modern response that can be found both in the most recent regulation of the European Union as well as in national texts that end up affecting countries and territories of the Caribbean. Vid. in this sense, Regulation (EU) No 1259/2010, of the Council, of 20 December 2010, implementing enhanced cooperation in the area of the law applicable to divorce and legal separation (arts. 5 and 8 mainly) which affects the Departments and Territories with a French legacy (vid. the report on the French legacy and taking into account the qualification that is done regarding Saint-Barthélemy that left the EU territory on 1 January 2012: it must be remembered that this Regulation came into force on 30 December 2010, although it was not of application until 21 June 2012). Vid. also, in relation to some territories subject to the Dutch legacy, art. 10.56 of the Dutch Civil Code. Vid. P. Orejudo Prieto de los Mozos, “La nueva regulación de la ley aplicable a la separación judicial y al divorcio: aplicación del Reglamento Roma III en España”, Revista Jurídica Española La Ley, nº 7912, 2002.

³⁶³ Vid., v.gr., L. Pålsson, “Marriage and Divorce”, Int. Enc. Comp. L., vol. III, cap. 16, 1978, which deals with the “strong power of attraction” of the lex fori in systems based on the personal law. And it is certain that this force of attraction brings to what the law of forum is on occasion the principal law: the example of the cited art. 10:56 of the Dutch Civil Code, before giving entry to the autonomy of the will, prescribes that “Whether a dissolution of a marriage or a legal separation can be decreed and on which grounds, shall be determined by Dutch law”.

³⁶⁴ Vid. infra, commentary on art. 40.

³⁶⁵ CONC.: Art. 3090.1, 2 and 3 (Cc of Quebec); art. 60 of the Belgian Code of PIL; art. 42 of the Bolivian draft law; art. 27 of the Uruguayan draft law.

³⁶⁶ It has certainly already been pointed out (vid. supra the commentary on Art. 29 of the present Law) that the institution of marriage itself is now subject to an ever increasing degree of heterogeneity in comparative law.

³⁶⁷ Vid. S.A. Sánchez Lorenzo, “Las parejas no casadas ante el Derecho internacional privado”, Revista Española de Derecho Internacional, vol. XLI, nº 2, 1989, pp. 487-532; id., “El principio de libertad personal en el Derecho internacional privado de la familia”, Revista de la Facultad de Derecho de la Universidad de Granada, nº 4, 2001, pp. 207-230.

³⁶⁸ From the perspective of qualification, S. Álvarez González, Comentarios al Código civil y compilaciones forales, dir. by M. Albaladejo and S. Díaz Alabart, t. I, vol. 2, 2nd ed., Madrid, Edersa, 1995, pp. 842-880, pp. 872-873.

³⁶⁹ The document established by the Hague Conference on Private International Law, Aspects de droit international privé de la cohabitation hors mariage et des partenariats enregistrés, Note établie par le Bureau Permanent. Private (2000), is particularly representative of this difficulty. In this document, some similar attempts are made (v.gr., parental responsibility), but they didn't have any success to this day. Because of its importance, this theme was kept in the agenda but it is so complex that it has been put on hold. Most recent works show as well its obvious absence in comparative private international law and a still ill-defined range of proposals (Note sur les développements en droit interne et droit international privé sur la cohabitation hors mariage, y compris les partenariats enregistrés, drawn up by Caroline Harnois (former Legal Officer) and Juliane Hirsch (Legal Officer), established in March 2008, pp. 40-41.

³⁷⁰ CONC.: Arts. 68 and 69 of the Swiss PIL Act; art. 3091 (Cc Quebec); art. 63 of the Belgian Code of PIL; art. 33 of the Italian PIL Act; arts. 55 and 56 of the Polish PIL Act; art. 24 of the Venezuelan PIL Act; arts. 44 and 45 of the Panamanian Code of PIL; art. 33 of the Panamanian draft law; art. 20 of the Mexican draft law; art. 28 of the Uruguayan draft law; art. 29 of the Colombian draft law.

³⁷¹ Vid. infra, the commentary on art. 36 of the present Law.

³⁷² Arts. 57 to 66 of the Bustamante Code attest to this multiplicity of options, sometimes applying the personal law of child, sometimes the personal law of the parent and sometimes the law of the forum.

³⁷³ Vid. supra, commentary on art. 5.

³⁷⁴ Art. 13 of the Venezuelan PIL Act.

³⁷⁵ The art. 29 of the Colombian draft of general private international law act provides a solution which also seeks a substantive result, with two alternative law organised in favor of the child: “Filiation in terms of its existence and effects shall be governed by the law of the domicile or of the habitual residence of the minor [...]. Filiation may also be determined in relation with each parent in accordance with the national law governing them”.

³⁷⁶ CONC.: Art. 77 of the Swiss PIL Act; art. 3092 (Cc Quebec); arts. 67-71 of the Belgian Code of PIL; art. 38 of the Italian PIL Act; arts. 57 and 58 of the Polish PIL Act; art. 47 of the Panamanian Code of PIL; art. 34 of the Dominican draft law; art. 23 of the Mexican draft law; art. 49 of the Bolivian draft law; art. 32 of the Colombian draft law.

³⁷⁷ Vid. infra, the commentary on art. 63 of the present Law.

³⁷⁸ It should be noted that the said Convention also applies to the Caribbean part of the Netherlands (Bonaire, Sint Eustatiu and Saba) in accordance with the declaration of this State after the restructuring of the Kingdom of the Netherlands (vid. the report regarding the Dutch legacy). That is also the case of the Departments and Territories to which the law and international obligations of France apply (vid. the report regarding the French legacy).

³⁷⁹ Modern laws, such as the Spanish Law 54/2007 on international adoption, provide a similar mechanism in which a mandatory instruction becomes a possibility, “shall take into account” becoming “may require”. In addition to the provisions of this Law, it “may [be] require[d], furthermore, the consents, hearings or authorisations required by the national law or the law of the habitual residence of the adopter or adopted” (art. 20).

³⁸⁰ “An adoption within the scope of the Convention shall take place only if the competent authorities of the State of origin:

c) have ensured that

(1) the persons, institutions and authorities whose consent is necessary for adoption, have been counselled as may be necessary and duly informed of the effects of their consent, in particular whether or not an adoption will result in the termination of the legal relationship between the child and his or her family of origin,

(2) such persons, institutions and authorities have given their consent freely, in the required legal form, and expressed or evidenced in writing,

(3) the consents have not been induced by payment or compensation of any kind and have not been withdrawn, and

(4) the consent of the mother, where required, has been given only after the birth of the child; and

d) have ensured, having regard to the age and degree of maturity of the child, that

(1) he or she has been counselled and duly informed of the effects of the adoption and of his or her consent to the adoption, where such consent is required,

(2) consideration has been given to the child's wishes and opinions,

(3) the child's consent to the adoption, where such consent is required, has been given freely, in the required legal form, and expressed or evidenced in writing, and

(4) such consent has not been induced by payment or compensation of any kind.”

³⁸¹ CONC.: Art. 3093 (Cc of Quebec); art. 34 of the Belgian Code of PIL; arts. 59-62 of the Polish PIL Act; art. 35 of the Dominican draft law; arts. 25 to 27 of the Mexican draft law; arts. 52 and 53 of the Bolivian draft law; art. 21 of the Uruguayan draft law.

³⁸² The Civil Code of Colombia provides a generic and internationally equivalent definition in its art. 288: “Parental authority is the body of rights that the law recognises the parents over their unemancipated children, in order to facilitate the execution of their obligations as parents. It is up to the parents to exercise their parental authority jointly over their legitimate children. In the absence of one of the parents, the other parent shall exercise such authority. Unemancipated children are so-called children of family and their father or mother are so-called mother or father of family”.

³⁸³ Arts. 2 and 3 of the Convention reflect this collaboration between the law of the forum for the adoption of protective measures and a personal law (in this case, the law of the nationality) to determine parental authority.

³⁸⁴ The Dominican Republic directly included it in its draft bill on private international law whose art. 35 refers to the aforementioned Convention. This Convention is also applied in the French overseas departments and collectivities (vid. the systems with a French legacy) and in Curaçao, Bonaire, Sint Eustatius and Saba (vid. the systems with a Dutch legacy).

³⁸⁵ Vid. supra, the commentaries on arts. 32 and 33.

³⁸⁶ Costa Rica, Mexico, Panama, Venezuela, Bahamas, Belize, Colombia, El Salvador, Guatemala, Honduras, Nicaragua, Saint Kitts & Nevis, Trinidad and Tobago.

³⁸⁷ Vid. A. Muñoz Fernández, La protección del adulto en el Derecho internacional privado, Cizur Menor, Thomson-Aranzadi, 2009.

³⁸⁸ CONC.: Art. 3085 (Cc Quebec); art. 43 of the Italian PIL Act.

³⁸⁹ Vid., from the strict perspective of private international law, M. Revillard, “La convention de La Haye sur la protection internationale des adultes et la pratique du mandat inaptitude”, Le droit international privé: esprit et méthodes, Mélanges en l'honneur de Paul Lagarde, Paris, Dalloz, 2005, pp. 725 et seq.

³⁹⁰ Vid. D. Rodríguez-Arias Vailhen, Una muerte razonable: testamento vital y eutanasia, Bilbao, Desclée de Brouwer, D. L. 2005.

³⁹¹ Vid. infra, the commentaries on arts. 45 and 46 of the present Law.

³⁹² Vid. infra, the commentary on art. 40 of the present Law.

³⁹³ Vid. infra, the commentary on art. 69 of the present Law.

³⁹⁴ Art. 13 of the Convention of the Hague, of 13 January 2000, on the International Protection of Adults establishes the following general rule (which in the Convention is the application in the law of the forum): “in so far as the protection of the person or the property of the adult requires, they [the competent authorities] may exceptionally apply or take into consideration the law of another State with which the situation has a substantial connection”.

³⁹⁵ Vid. supra, art. 31 (property relationships in marriage), art. 32 (nullity of marriage), art. 33 (divorce and legal separation), art. 34 (non-matrimonial unions), art. 38 (parental responsibility and protection of minors) and art. 39 (Protection of adults without legal capacity).

³⁹⁶ CONC.: Art. 46 of the Panamanian Code of PIL; art. 49 of the Swiss PIL Act; arts. 3094-3096 (Cc Quebec); arts. 74 to 76 of the Belgian Code of PIL; art. 45 of the Italian PIL Act; art. 63 of the Polish PIL Act; art. 37 of the Dominican draft law; arts. 28 to 31 of the Mexican draft law; art. 50 of the Bolivian draft law; art. 29 of the Uruguayan draft law; art. 35 of the Colombian draft law; Protocol of the Hague of 27 November 2007 on the Law Applicable to Maintenance Obligations.

³⁹⁷ Vid. on this option of applicable law S. Álvarez González, Crisis matrimoniales internacionales y obligaciones alimenticias entre cónyuges, Madrid, Civitas, 1996.

³⁹⁸ CONC.: Art. 57 of the Panamanian Code of PIL; arts. 90 et seq. of the Swiss PIL Act; arts. 3098-3101 (Cc Quebec); arts. 78 et seq. of the Belgian Code of PIL; art. 46 of the Italian PIL Act; arts. 28 and 29 of the Austrian PIL Act; art. 64 of the Polish PIL Act; art. 38 of the Dominican draft law; arts. 76 to 81 of the Mexican draft law; art. 83 of the Bolivian draft law; art. 30 of the Uruguayan draft law; art. 40 of the Colombian draft law.

³⁹⁹ Vid. J. Héron, Le morcellement des successions internationales, Paris, Económica, 1999; F. Boulanger, Droit international des successions. Nouvelles approches comparatives et jurisprudentielles, Paris, Económica, 2004.

⁴⁰⁰ This is the option chosen by the Hague Convention of 1 August 1989 on the Law Applicable to Succession to the Estates of Deceased Persons, as well as the Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession.

⁴⁰¹ Vid. the illustrative debates on that matter in the Acts of the Conference: the Hague Conference, Proceedings of the Sixteenth Session (1988), tome II, Succession to estates - applicable law, The Hague, Editions SDU, 1991.

⁴⁰² Those instruments are the aforementioned Convention and Regulation. However, it should be precised that nominally they refer to the habitual residence and not the domicile as the connecting factor.

⁴⁰³ This possibility is thoroughly described in the monograph by J.M. Fontanellas Morell, El professio iuris sucesoria, Madrid, Marcial Pons, 2010.

⁴⁰⁴ Vid. supra, art. 25 regarding names and surnames, art. 31, regarding property relationships in marriage, and art. 33 regarding divorce and legal separation.

⁴⁰⁵ Vid. infra the commentary on art. 42 of the present Law.

⁴⁰⁶ CONC.: Art. 93 of the Swiss PIL Act; art. 84 of the Belgian Code of PIL; art. 48 of the Italian PIL Act; art. 66 of the Polish PIL Act; art. 39 of the Dominican draft law, art. 85 of the Bolivian draft law; art. 31 of the Uruguayan draft law; art. 42 of the Colombian draft law.

⁴⁰⁷ Vid. M. Requejo Isidro, La ley local y la forma de los actos en Derecho internacional privado español, Madrid, Eurolex, 1998, in which this principle is explained from a historical and compara-tive law perspective.

⁴⁰⁸ This Convention binds more than forty States of the international community, including the countries of the OHADAC zone Antigua and Barbuda and Grenada.

⁴⁰⁹ Art. 49 of the Italian PIL Act; art. 41 of the Dominican draft law; art. 88 of the Bolivian draft law.

⁴¹⁰ Vid. the classical example of Re Maldonado (deceased); State of Spain v Treasury Solicitor.Court of Appeal, [1954] P 223, [1953] 2 All ER 1579, [1954] 2 WLR 64.

⁴¹¹ Other possibilities can be imagined: the recent art. 33 of Regulation (UE) 650/2012 is clearly in favour of appropriation and public interest outside the law of succession, indicating that: “To the extent that, under the law applicable to the succession pursuant to this Regulation, there is no heir or legatee for any assets under a disposition of property upon death and no natural person is an heir by operation of law, the application of the law so determined shall not preclude the right of a Member State or of an entity appointed for that purpose by that Member State to appropriate under its own law the assets of the estate located on its territory, provided that the creditors are entitled to seek satisfaction of their claims out of the assets of the estate as a whole”. The allusion made to the “disposition of property upon death” as well as to the “natural person” by the law of succession. That is not the option that the Venezuelan PIL Act opted for either. Its art. 36 advocates the use of the law of appropriation of the State of Venezuela rather than other possible foreign heir States. Vid. T. B. de Maekelt, Ley venezolana de Derecho internacional privado: tres an~os de su vigencia, op. cit., pp. 90-91, which echoes the critics made on the lack of international harmony that its solution offers.

⁴¹² Vid. this same solution in art. 49 of the Italian PIL Act and in art. 40 of the Dominican draft law; vid. as well art. 113 of the Panamanian PIL Act.

⁴¹³ “Gifts inter vivos is an act by which a person transfers, gratuitously and irrevocably, part of their property to a person who accepts it” (art. 1433 of the Colombia Civil Code). “A deed of gift allows a person, at the expense of their assets, to gratuitously transfer the ownership of a property to another person who accepts it” (art. 371 of the Cuban Civil Code). “A gift is a deed by which a person gratuitously transfers a property or another right of ownership to another person who accepts it” (art. 1.431 of the Venezuelan Civil Code).

⁴¹⁴ CONC.: Art. 56 of the Italian PIL Act; art. 41 of the Dominican project; art. 66 of the Mexican draft model of PIL; art. 28 of the Colombian draft law.

⁴¹⁵ Vid. P. Jiménez Blanco, “El Derecho aplicable a las donaciones”, Revista Española de Derecho Internacional, 1997, pp. 63-89.

⁴¹⁶ In some cases, the qualification derived from civil law is unambiguous. Art. 943 of the Civil Code of Guatemala: “Gifts mortis causa are governed by the same testamentary dispositions that govern legacy”. Art. 1393 of the Costa Rican Civil Code: “Gifts to be effective after death shall be considered as last will and are wholly governed by the provisions governing wills”.

⁴¹⁷ Art. 1842 of the Colombian Civil Code: “Gifts made by a spouse to the other before their marriage and granted for this purpose and gifts made by a third party to either spouse before or after their marriage and granted for this purpose are generally called ‘donation propter nuptias' (gift on account of marriage)”.

⁴¹⁸ P. Jiménez Blanco, loc. cit., p. 77.

⁴¹⁹ Ibid., p. 74.

⁴²⁰ Vid. infra the commentary on art. 51 of the present Law.

⁴²¹ Vid. supra the commentary on art. 42 of the present Law.

⁴²² CONC.: Art. 116 of the Swiss PIL Act; art. 98 of the Belgian Code of PIL; art. 57 of the Italian PIL Act; arts. 37-37 of the Austrian PIL Act; art. 26 of the Polish PIL Act; art. 42 of the Dominican draft law; arts. 88 to 93 of the Mexican draft law; art. 63 of the Bolivian draft law; arts. 48 and 49 of the Uruguayan draft law; art. 52 of the Colombian draft law; the Inter-American Convention on the Law Applicable to International Contracts of 1994.

⁴²³ In the Puerto Rican system, an obligatory reference is the case Maryland Casualty Co.v. San Juan Racing Association, Inc., 8 D.P.R. 559 (1961) on a typical conflict of laws dispute regarding insurance contracts. The insurance policy had been issued in the main office of the insurer in Pennsylvania but had been approved by the local agent of the insurer in Puerto Rico, where the insurer was domiciled and the insured risk was located. The Supreme Court indicated that the insurance policy being approved on the island would allow to apply the Puerto Rican law if a rule was adopted, according to which the law applicable is the law of the place where the last act necessary for the contract to be effective was executed. Id. p. 564. However, precedents of the federal Supreme Court and State Courts of the United States convinced the Supreme Court to dismiss the “conceptualist theories of ‘place of conclusion of contract'” and based itself, with broader criteria, on the application of Puerto Rican law. Id., pp. 562-566. At that point, U.S. law on conflict of laws departed from the rule lex locicontractus to move towards the “centre of gravity” approach, described by the court as the theory according to which “the law of State that has the most significant contacts with the object of the contract is the applicable law, as it is assumed that this State has the most interest in the matter that arises from said contract”. Id. p. 565. However, the court also extensively discussed the position of Spanish authorities regarding standard-form contracts and concluded that “the theory supporting the application of the law of State which has more contacts, the closest relation with the contract [is justified] by the great interest it has to protect the interests of its citizens”. Id. pp. 565-568 In addition, the court emphasised that the interest of the State is particularly important regarding standard-form contracts, in which the insured party generally has to accept what the insurance company offers. Regarding other federal cases of conflict of laws in contractual matters in which Puerto Rican law also applied in accordance with the doctrine Erie-Klaxon, vid. American Eutectic Weld v.Rodríguez, 480 F.2d 223 (1st Cir. 1973); Lummus Co. v. Commonwealth Oil Refining Co., 280 F.2d 915 (1st Cir. 1960); Gemco Latinoamericana Inc. v. Seiko Time Corp., 623 F. Supp. 912 (1985); Fojo v. Americana Express Co., 554 F. Supp. 1199 (D.P.R. 1983); Pan American Computer Corp. v. Data General Corp., 467 F. Supp. 969 (1979); Mitsui & Co. v. Puerto Rico Water Resources, 79 F.R.D. 72 (1978); Southern Intern. Sales v.Potter & Brumfield Div., 410 F. Supp. 1339 (1976); Hernández v. Steamship Mut.Underwriting Ass'n Ltd., 388 F. Supp. 312 (1974 ), González y Camejo v. Sun LifeAssurance Co. Of Canada, 313 F. Supp. 1011 (D.P.R. 1970), Beatty Caribbean, Inc. v.Viskase Sales Corp., 2 F.Supp.2d 123 (D.P.R.2003) and Puerto Rico Telephone Co., Inc.v. U.S. Phone Mnfgn. Corp. 427 F.3d (1st Cir. 2005).

⁴²⁴ This is reflected in particular in the legal instrument that constitutes the main reference on an international level in this matter, Regulation (EC) No 593/2008 of f 17 June 2008 on the law applicable to contractual obligations(Rome I) (DO L 177/6, 4.7.2008), that contains uniform rules on this matter within the European Union. It replaces the Rome Convention of 1980 on the law applicable to contractual obligations, which introduced modifications of a certain importance. These instruments have been a reference during the last years of codification of private international law of countries around the word. Vid. B. Ancel, “Autonomía conflictual y Derecho material del comercio internacional en los Convenios de Roma y de México”, AEDIPr, t. II, 2002, pp. 35 et seq.

⁴²⁵ K. Siehr, “Die Parteiautonomie im Internationalen Privatrecht”, Festschrift für Max Keller zum 65. Geburtstag, Zurich, Schulthess, 1989, pp. 485 et seq., esp. p. 486.

⁴²⁶ S. Leible, “Außenhandel und Rechtssicherheit”, ZVglRWiss, 97, 1998, pp. 286 et seq., esp. p. 289.

⁴²⁷ S. Leible, “Comercio exterior y seguridad jurídica”, Revista del Derecho Comercial y de las Obligations, nº 31, 1998, p. 397.

⁴²⁸ Vid. H.S. Burman, “International Conflict of Laws, The 1994 Inter-American Convention on the Law Applicable to International Contracts, and Trends for the 1990s”, Vanderb. J. Transn. L., 28 (1995), p. 367; A. Gebele, Die Konvention von México. Eine Perspektive für die Reform des Europäischen Schuldvertragsübereinkommens, Birkenau, 2002; R. Herbert, “La Convención Interamericana sobre derecho aplicable a los contratos internacionales”, Rev. Urug. Der. Int. Priv., nº 1, 1994, p. 1; F.K. Juenger, “The Inter-American Convention on the Law Applicable to International Contracts. Some Highlights and Comparison”, Am. J. Comp. L., vol. 42, 1994, pp. 381 et seq.; L. Pereznieto Castro, “Introducción a la Convención interamericana a sobre Derecho aplicable a los contratos internacionales”, Riv. dir. int. pr. proc., vol. 30, 1994, pp. 765 et seq.; id., “El negocio jurídico en el Derecho internacional privado en México”, AEDIPr, t. VI, 2006, pp. 39-85.

⁴²⁹ P. de Miguel Asensio, “La Ley aplicable en defecto de elección a los contratos internacionales: art. 4 del Convenio de Roma de 1980”, Revista Jurídica Española La Ley, XVI, 1995, pp. 1-7.

⁴³⁰ CONC.: Art. 117 of the Swiss PIL Act; art. 65 of the Bolivian draft law; art. 45 of the Uruguayan draft law; art. 53 of the Colombian draft law.

⁴³¹ J.C. Fernández Rozas and S.A. Sánchez Lorenzo, Derecho internacional privado, 7th ed., Cizur Menor (Navarra), Civitas-Tomson-Reuters, 2013, pp. 561 et seq.

⁴³² “In the absence of choice, where the applicable law cannot be determined either on the basis of the fact that the contract can be categorised as one of the specified types or as being the law of the country of habitual residence of the party required to effect the characteristic performance of the contract, the contract should be governed by the law of the country with which it is most closely connected. In order to determine that country, account should be taken, inter alia, of whether the contract in question has a very close relationship with another contract or contracts”.

⁴³³ CONC.: Art. 91 of the Panamanian Code of PIL; art. 121 of the Swiss PIL Act; art. 44 of the Austrian PIL Act; art. 3118 (Cc Quebec); art. 43 of the Dominican draft law; art. 72 of the Bolivian draft law; art. 50.6º of the Uruguayan draft law; art. 55 of the Colombian draft law.

⁴³⁴ J.C. Fernández Rozas and S.A. Sánchez Lorenzo, Derecho internacional privado, 7th ed., Cizur Menor (Navarra), Civitas-Tomson-Reuters, 2013, pp. 578 et seq.

⁴³⁵ CONC.: Art. 95 of the Panamanian Code of PIL; art. 114 of the Swiss PIL Act; art. 3117 (Cc Quebec); art. 41 of the Austrian PIL Act; art. 44 of the Dominican draft law; art. 71 of the Bolivian draft law; art. 50.5º of the Uruguayan draft law; art. 56 of the Colombian draft law; art. 6 of Regulation (EC) No 593/2008 of the European Parliament and the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I).

⁴³⁶ CONC.: Art. 96 of the Mexican draft law.

⁴³⁷ In the Caribbean, the case Viuda de Fornaris v. American Surety Company, 93 D.P.R. 29 (1966) is an important case which affected the new Puerto Rican jurisprudential trend. It is similar to the case Babcock v. Jackson, 19 N.E.2d 279 (1963), ruled by a New York court, which marks the beginning of the “revolution” in conflict of laws in the United States. The case Viuda de Fornaris involved four Puerto Rican citizens who died on their trip back from Saint Thomas when the private plane they travelled on, piloted by its owner, crashed in the waters of Saint Thomas. The plane was registered in Puerto Rico and remained parked there regularly. During their legal action for so-called illegal murder, the defendants invoked the ten thousand dollar ceiling established by the law of Saint Thomas in compensation for illegal murder. Later, they pointed out that neither the Puerto Rican Civil Code nor its predecessor, the Spanish Civil Code, provided a rule of private international law on damages. The Supreme Court of Puerto Rico recognised that Spanish jurisprudence had adopted the rule lex loci delicti in order to resolve such conflicts. However, basing itself on the work of Spanish specialists, the Court explained that the adoption of this rule was based on the presumption - contested in this case - that the locus delicti was the “major point of connection” and that it is “in the greatest interest” of the State where the delicti occurred “that the illegal act is not committed, or if it is, that due compensation for damages be paid”. Viuda de Fornaris, ante, p. 31. Given the various and predominant connections that Puerto Rico has with the case, this presumption was dismissed and it was concluded that the applicable law was the law of Puerto Rico.

⁴³⁸ CONC.: Arts. 132 and 133 of the Swiss PIL Act; art. 99 of the Belgian Code of PIL; art. 62 of the Italian PIL Act; art. 33 of the Polish PIL Act; art. 49 of the Dominican draft law; arts. 99 et seq. of the Mexican draft law; art. 73 of the Bolivian draft law; art. 52 of the Uruguayan draft law; art. 62 of the Colombian draft law.

⁴³⁹ At the time, H. Mazeaud had claimed that the French rules on liability in tort, delict or quasi-delict were lois de police, in the sense of art. 3.1 of the French Civil Code and that, as a result, it was necessary for French Courts to always have jurisdiction (“Conflits des lois et compétence internationale dans le domaine de la responsabilité civile délictuelle et quasi-délictuelle”, Rev. crit. dr. int. pr., 1934, pp. 382-385).

⁴⁴⁰ Cf. O. Kahn-Freund, “Delictual Liability and the Conflict of Laws”, Recueil des Cours, 1968-II, pp. 20-22.

⁴⁴¹ G. Beitzke, “Les obligations délictuelles en droit international privé”, Recueil des Cours, t. 115, 1965-II, pp. 73-75).

⁴⁴² Art. 3128 (Cc Quebec).

⁴⁴³ CONC.: Arts. 136 and 137 of the Swiss PIL Act.

⁴⁴⁴ CONC.: Art. 142 of the Swiss PIL Act; art. 53 of the Uruguayan draft law.

⁴⁴⁵ CONC.: Art. 99 of the Swiss PIL Act; art. 3097 (Cc Quebec); art. 87 of the Belgian Code of PIL; art. 31 of the Austrian PIL Act; art. 41 of the Polish PIL Act; art. 55 of the Dominican draft law; art. 54 of the Bolivian draft law; art. 39 of the Uruguayan draft law; art. 49 of the Colombian draft law.

⁴⁴⁶ CONC.: Art. 101 of the Swiss PIL Act; art. 88 of the Belgian Code of PIL; art. 56 of the Dominican draft law; art. 57 of the Bolivian draft law; art. 40.1 of the Uruguayan draft law.

⁴⁴⁷ CON.: Art. 107 of the Swiss PIL Act; art. 89 of the Belgian Code of PIL; art. 43 of the Polish PIL Act; art. 57 of the Dominican draft law.

⁴⁴⁸ CONC.: Art. 110 of the Swiss PIL Act; arts. 93 and 94 of the Belgian Code of PIL; art. 34 of the Austrian PIL Act; arts. 46 and 47 of the Polish PIL Act; art. 58 of the Dominican draft law; art. 59 of the Bolivian draft law; art. 64 of the Colombian draft law.

⁴⁴⁹ CONC.: Art. 91 of the Belgian Code of PIL.

⁴⁵⁰ CONC.: Arts. 167, 168 and 169 of the Panamanian PIL Act; art. 16 of the Swiss PIL Act; art. 14 of the Italian PIL Act; art. 281.2º LEC (Spain); art. 244 of the Civil, Administrative, Labour and Economic Procedure Act of Cuba; art. 3 of the Austrian PIL Act; art. 10 of the Polish PIL Act; art. 59 of the Dominican draft law; art. 11 of the Argentinian draft law; arts. 4 and 5 of the Mexican draft law; arts. 2, 145 and 146 of the Bolivian draft law; art. 2 of the Uruguayan draft law; art. 2 of the Colombian draft law.

⁴⁵¹ Vid. A. Flessner, “Fakultatives Kollisionsrecht”, Rabels Zeitschrift für ausländisches und internationales Privatrecht, vol. 34, 1970, pp. 547-584; F. Sturm, “Facultatives Kollisionrecht: Notwendigkeit und Grenzen”, Festschrift fur K. Zweigert, Tubinga, J. C. B. Mohr, 1981, pp. 329-351; K. Zweigert, “Zur Armut des Internationalen Privatrecht an Sozialen Werten”, Rabels Z., vol. 37, 1973, pp. 434-452.

⁴⁵² J. A. Carrillo Salcedo, “¿Alegaciones de Derecho extranjero por las partes o aplicación de oficio por el Juez español de la norma de conflicto española?”, Revista Española de Derecho Internacional, vol. XIV, 1961, pp. 585-601.

⁴⁵³ Vid. art. 59 of the Dominican draft law, which includes a text identical to the commented article. In Europe vid. art. 16 of the Swiss PIL Act of 1987 and the commentaries of B. Dutoit, Commentaire de la loi fédérale du 18 décembre 1987, 2nd ed, Basel, Helbing & Lichtenhahn, 1997, pp. 42-50; art. 14 of the Italian PIL Act of 1995 and the commentaries of N. Boschiero, in Legge 31 maggio 1995, N. 218, Riforma del sistema italiano di diritto internanazionale privato (a cura di S. Batiatti), Milan, Cedam, 1996, pp. 1035-1043; art. 60 of the Venezuelan PIL Act: “Foreign Law shall be applied ex officio. The parties may bring information related to the applicable foreign Law and the Courts and authorities may issue orders tending to better knowledge thereof”. J.L. Bonnemaison W., “La aplicación del Derecho extranjero”, Ley DIPr de 6 de agosto de 1998. Libro homenaje a Gonzalo Parra Aranguren, vol. II, Caracas, Supreme Court of Justice, 2001, pp. 205-210. Vid. Judgement of the Supreme Court of Justice, Civil Appeal Chamber, 16 January 1985, case Gonçalves Rodríguez / Transportes Aéreos Portugueses (TAP), Ramírez & Garay, vol. 90, first quarter 1985, pp. 465-473.

⁴⁵⁴ J.C. Fernández Rozas and S.A. Sánchez Lorenzo, Derecho internacional privado, 7th ed., Madrid, Civitas-Thomson-Reuters, 2013, pp. 138-139.

⁴⁵⁵ J. C. Fernández Rozas, “Art. 12.6º”, Comentarios al Código civil y Compilaciones forales, t. I., vol. 2º, 2nd ed., Madrid, Edersa, 1995, pp. 973-1082.

⁴⁵⁶ The Bisbal case, ruled by the French Court of Cassation, is a classical example of this last alternative. In its judgment of 12 May 1959, the Court rejected the appeal against a judgment by which a legal separation between Spanish spouses became a divorce in accordance with French law. The wife claimed the unjustified ex officio application of the foreign law (Spanish law), applicable with regard to French conflict rule which was in effect at the time. The Spanish law of the time prohibited divorce. The French court declared that “the French rules of conflict of laws, at least when determining the application of foreign law, do not have a character of public policy, in that it falls to the party to demand its application, and the trial judges cannot be blamed for not applying foreign law on their own motion but French law, which is to govern all private law relations” (Rev. crit. dr. int. pr., 1960, pp. 62 et seq. and the note of H. Batiffol; Journ. dr. int., 1960, pp. 810 et seq. and the note of Sialelli; B. Ancel and Y. Lequette, Grands arrêts de la jurisprudence française de droit international privé, 5th ed., Paris, Dalloz, 2006, pp. 284 et seq.).

⁴⁵⁷ L. García Gutiérrez, “El ‘doble escalón' del Derecho internacional privado: sobre la toma en consideración de otro ordenamiento jurídico en la interpretación del Derecho material aplicable”, Pacis artes. Obra homenaje al profesor J. D. González Campos, Madrid, Eurolex, 2004, pp. 1547-1561.

⁴⁵⁸ F.J. Garcimartín Alférez, Sobre la norma de conflicto y su aplicación procesal, Madrid, Tecnos, 1994.

⁴⁵⁹ Art. 244 of the Civil, Administrative, Labour and Economic Procedure Act of Cuba: “Each party bears the burden of proof of the facts they assert and of the facts they oppose to those asserted by the other party, as well as the positivity of the foreign law whose application is claimed. Notorious or obvious facts will be considered without necessitating evidence”.

⁴⁶⁰ I. Zajtay, “Le traitement du droit étranger dans le procès civil. Étude de droit comparé”, Riv. dir. int. pr. Proc., 1968, pp. 233-301; id., “Problemas fundamentales derivados de la aplicación del Derecho extranjero”, Bol. Mexicano de Derecho Comparado, vol. XI, 1978, pp. 371-382.

⁴⁶¹ S. Álvarez González, “La aplicación judicial del Derecho extranjero bajo la lupa constitucional”, Revista Española de Derecho Internacional., vol. LIV, 2002/1, pp. 205-223.

⁴⁶² That is the solution reached by the arbitrator Lord Asquith of Bishopstone in the case of the concesiones petrolíferas de Abu Dhabi Oil, Int'l Comp. L. Q., vol. I, 1952, p. 247. Vid. Ph.C. Jessup, Transnational Law, New Haven, Yale University Press, 1956, pp. 27 et seq.

⁴⁶³ J. M. Bischoff, La compétence du droit française dans le règlement des conflits de lois, Paris, LGDJ, 1959. Vid. supra the case Bisbal.

⁴⁶⁴ A. Ehrenzweiz, Private International Law, I, 2nd ed., Leyden, Sijthoff-Oceana, 1972, pp. 103-104.

⁴⁶⁵ P. Gannagé, “L'égalité de traitement entre la loi du for et la loi étrangère dans les codifications nationales de droit international privé”, Annuaire de l'Institute de Droit International., vol. 63, I, 1989, pp. 205-240, esp. p. 232.

⁴⁶⁶ Vid. H. Batiffol, Annuaire de l'Institut de Droit International, vol. 63, I, 1989, p. 244.

⁴⁶⁷ F.J. Garcimartín, Sobre la norma de conflicto..., op. cit., pp. 71-74.

⁴⁶⁸ CONC.: Art. 13.1 of the Swiss PIL Act; art. 15 of the Italian PIL Act; art. 4 of the Austrian PIL Act; art. 60 of the Dominican draft law; art. 3 of the Mexican draft law; art. 3 of the Uruguayan draft law; art. 4 of the Colombian draft law.

⁴⁶⁹ This issue arose concretely in international jurisprudence with the case concerning the payment of various Serbian loans issued in France. In its judgement of 12 July 1929, the Permanent Court of International Justice, once it has arrived at the conclusion that it was necessary to apply foreign law, asserted that “[...] there seems no doubt that it must seek to apply it as it would be applied in that country. It would not be applying the municipal law of a country if it were to apply it in a manner different from that in which that law would be applied in the country in which it is in force” (PCIJ, serie A, nos 20-21, pp. 123-125.). Vid., as well, the judgement of the Court of Rome on 13 September 1954 (Anglo-Iranian Oil Company c. SUPOR.), Rev. crit. dr. int. pr., 1958, pp. 519 et seq. and the note of R. de Nova.

⁴⁷⁰ Paragraph 2 of this article reproduces art. 15 of the Italian PIL Act of 1995 in its entirety. Vid. N. Boschiero, en Legge 31 maggio 1995, N. 218, Riforma del sistema italiano di diritto internanazionale privato (a cura di S. Batiatti), Milan, Cedam, 1996, pp. 1043-1045. Vid. art. 3 of the Mexican draft law: “The foreign law shall be applied according to its own criteria of interpretation and application in time”; art. 60 of the Dominican draft law, which includes a text identical to the commented article. Vid., as well art. 14 of the Belgian Code of PIL of 2004.

⁴⁷¹ C. David, La loi étrangère devant le juge du fond, Paris, Dalloz, 1964, pp. 255 et seq.; R. M. G. de Moura Ramos, Dereito internacional privado e Constitução. Introdução a uma análise das suas relações, Coimbra, Coimbra Editora, 1980, pp. 242 et seq.

⁴⁷² G. Morelli, “Controllo di costitucionalitá di norme straniere”, Scritti di diritto internazionale in onore di Tomaso Perassi, vol. II, Milan, Giuffrè, 1957, pp. 171-183, esp. pp. 171-174.

⁴⁷³ H. Motulsky.”L'office du juge et la loi étrangère”, Mélanges offerts à Jacques Maury, vol. I, Paris, Dalloz & Sirey, 1960, p. 362.

⁴⁷⁴ It was evidenced by the judgement of the Tribunal de Grand Instance of Dunkerke on 29 Novembre 1989, where a claim for maintenance was filed as a consequence of a separation of spouses. The Court admitted ex oficio its connection with a judgement of the Italian Constitutional Court that declared to be unconstitutional the art. 18 of the Civil Code, which established the national law of the husband for personal relations between spouses of different nationality (Journ. dr. int. 1990, pp. 393 et seq. and the note of H. Gaudemet-Tallon).

⁴⁷⁵ K. Siehr, “Diritto internazionale privato e diritto costituzionale”, II Foro italiano, vol. XCVIII, 1975, pp. 7-16.

⁴⁷⁶ R. Quadri, “Controllo sulla legittimá costituzionale delle norme straniere”, Dir. int., vol. XIII, 1959, pp. 31-35; F. Mosconi, “Norme Straniere e controllo di costitucionalitá e di legittimitá e di legittimitá internazionale”, Dir. int., vol. XIV, 1960, pp. 426-439; T. Ballarino, Costituzione e Diritío internazionale privato, Padua, Cedam, 1974; K. Lipstein, “Proof of Foreign Law: Scrutiny of its Constitutionality and Validity”, British. Yearb. Int'l L., vol. 42, 1967, pp. 265-270.

⁴⁷⁷ S.M. Carbone, “Sul controllo di costituzionalitá della norma straniera richiamata”, Riv. dir. int. pr. proc., vol. I, 1965, pp. 685-696, esp. pp. 690-691.

⁴⁷⁸ P. Graulich, v°, “Conflit de lois dans le temps”, Encyclopédie Dalloz dr. int., vol. I, Paris, 1968, pp. 504-516.

⁴⁷⁹ In addition, it is necessary to bear in mind the original approach of the Swedish jurist T. Gihl, from which he called “political laws” the laws which, as such, did not have application in the forum according to him (cf.“Lois politiques et droit international privé”, Recueil des Cours, t. 83 (1953-II), pp. 163-254).

⁴⁸⁰ P. Fedozzi, “De l'efficacité extraterritoriale des lois et des actes de droit public”, Recueil des Cours, t. 27 (1929-II), pp. 149 et seq.; C. Freyria, “La notion de conflit de lois en droit public”, Travaux Com. fr. dr. int. pr. (1962-1964), Paris, Dalloz, 1965, pp. 103-119.

⁴⁸¹ R. Quadri, “Leggi politiche e diritto internazionale privato”, Studi Critici, vol. II, Milan, Giuffrè, 1958, pp. 363 et seq.; P. Lalive, “Sur l'application du droit public étranger”, Ann. suisse dr. int., vol. XXVII, 1971, pp. 103-142; id., “Le droit public étranger et le droit international privé”, Travaux Com. fr. dr. int. pr. (1973-1975), Paris, Dalloz, 1977, pp. 215-245.

⁴⁸² A. Tuobiana, Le domaine du droit du contrat en droit international privé, Paris, Dalloz, 1972.

⁴⁸³ That was evidenced by the judgement of Swiss Federal Supreme Court of 2 February 1954 (Ammon c. Royal Dutch, Ann. Suisse dr. int., vol. XII, 1955, p. 279 et seq.), which referred to the traditional postulate of non-applicable foreign public law, declaring that “the scope of this principle should be precised. Indeed, when enunciated in such a general manner, it does not sufficiently take into account the fact that the legal order of a State is a whole. Therefore, it is particularly necessary to examine its internal justification”. This reasoning was echoed in the judgement of the German Federal Court of Justice of 17 December 1958 (Völlert, B.G.H.Z., 31, 367), since, after considering the traditional refusal to apply all public law, the Court proceeded to separate provisions composing it according to their purpose. In accordance with this decision, “the legal situation must [...] be appreciated differently whether a restriction of public law to the right to dispose is used to harmonise interests of private law worthy of protection or serves the economic or political interests of the States which imposed said restrictions. In this case, the public law provision, because of its different purpose, does not have an intrinsic link with the private obligation it affects”.

⁴⁸⁴ M.C. Feuillade, “Aplicación del Derecho público extranjero”, Prudentia Iuris, nº 73, 2012, pp. 83-115.

⁴⁸⁵ Institut de Droit International, Annuaire, Session de Wiesbaden, 1975, vol. 56, pp. 219-278.

⁴⁸⁶ J.C. Fernández Rozas, Tráfico jurídico externo y sistema de Derecho internacional privado, Oviedo, ed. Gráficas Valdés, 1985, p. 40.

⁴⁸⁷ L. Trigueros, “Notas sobre los problemas de relación entre Derecho internacional privado y Derecho público”, Jurídica. Anuario del Departamento de Derecho de la Universidad Iberoamericana, Mexico, nº 14, 1982, pp. 213-222.

⁴⁸⁸ V.gr. art. 16 of the CIDIP Convention on Letters Rogatory of 1975 establishes that “The States Parties to this Convention may declare that its provisions cover the execution of letter rogatory in criminal, labor, and ‘contentious -administrative' cases, as well as in arbitrations and other matters within the jurisdiction of special courts. Such declarations shall be transmitted to the General Secretariat of the Organization of American States”. The same provision is contained in art. 15 of the CIDIP Convention on the Taking of Evidence Abroad of 1975.

⁴⁸⁹ V.C. García Moreno and C. Belair M., “Aplicación del Derecho público extranjero por el juez nacional”, Octavo Seminario de Derecho Internacional Privado, Mexico, Unam, 1989, pp. 91-102, esp. 101.

⁴⁹⁰ In accordance with art. 13.2º of the Swiss PIL Act of 1987: “The application of a foreign law is not precluded by the mere fact that a provision is considered to have a public law nature”.

⁴⁹¹ A. Bucher and A. Bonomi, Droit international privé, Basilea, ed. Helbing & Lichtenhahn, 2001, p. 119.

⁴⁹² CONC.: Art. 10 of the Panamanian Code of PIL; art. 12 of the Argentinian draft Code of PIL; art. 5.f of the Mexican model Code of PIL; art. 62 of the Dominican draft law; art. 7 of the Bolivian draft law; art. 11 of the Uruguayan draft law.

⁴⁹³ Ph. Francescakis, La théorie du renvoi et les conflits de systèmes en droit international privé, Paris, Sirey, 1958, pp. 52-53.

⁴⁹⁴ N. Bouza Vidal, Problemas de adaptación en el Derecho internacional privado e interregional, Madrid, Tecnos, 1977, p. 12.

⁴⁹⁵ A.E. von Overbeck, “Les règles de droit international privé matériel”, De conflictu legum. Essays presented to R.D. Kollewijn / J. Offerhaus, Leiden, Sijthoff, 1962, pp. 362-379, esp. p. 364.

⁴⁹⁶ G. Parra Aranguren, “La Convención interamericana sobre normas generales de Derecho internacional privado (Montevideo, 1979)”, Anuario Jurídico Interamericano, 1979, pp. 157-186, esp. p. 184.

⁴⁹⁷ On the introduction process of this disposition in the Civil Code for the Federal District (CCDF in Spanish) in the 1988 reform and the role played by the Mexican Academy of Private International Law vid. the study by J.A. Vargas, “Conflictos de leyes en México: las nuevas normas introducidas por las reformas de 1988” (translation published in The International Lawyer, vol. 28, nº 3, 1994), Jurídica. Anuario del Departamento de Derecho de la Universidad Iberoamericana, nº 26, 1996, pp. 619-656, esp. pp. 646-647; V.C. García Moreno, “Reforma de 1988 a la legislación mexicana en materia de Derecho internacional privado”, Libro homenaje a Haroldo Valladão. Temas de Derecho internacional privado, Caracas, Universidad Central de Venezuela, 1997, pp. 187-212, esp. pp. 197-198.

⁴⁹⁸ Art. 5.f of the Mexican model Code of Private International Law fully addresses the aforementioned general issues. Vid. L. Pereznieto Castro, “Anteproyecto de reformas al Código Civil para el Distrito Federal en materia de Derecho internacional privado”, Revista Mexicana de Justicia, vol. V, nº 1, 1987, pp. 168 et seq. Regarding the Dominican Republic, the art. 62 of the preliminary draft law of PIL of 2013 included a text identical to the commented provision of the OHADAC Model Law.

⁴⁹⁹ W. Goldschmidt, “Un logro americano en el campo convencional del Derecho internacional privado”, El Derecho (Buenos Aires), nº 4763, 24 July 1979, p. 3, in which are indicated the advantages of the broad wording of this provision.

⁵⁰⁰ J.C. Fernández Rozas, “Coordinación de ordenamientos jurídicos estatales y problemas de adaptación”, Revista Mexicana de Derecho Internacional Privado y Comparado, nº 25, 2009, pp. 9-44.

⁵⁰¹ Vid. Ph. Malaurie, “L'équivalence en droit international privé”, Recueil Dalloz, 1962, chronique, xxxvi, pp. 215-220. Vid. as well, M. Jorge, “La loi étrangère devant le juge du fond: Accord procédural et équivalence des lois”, Études en l'honneur de Mme. Collaço, Coimbra, Almedina, vol. I, 2002, pp. 217 et seq.; H. Gaudemet-Tallon, “De nouvelles fonctions pour l'équivalence en droit international privé”, Le droit international privé: esprit et méthodes: mélanges en l'honneur de Paul Lagarde, Paris, Dalloz, 2005, pp. 303-325; C. Engel, “L'utilité du concept d'équivalence en droit international privé”, Annales de Droit de Louvain, vol. 66, 2006, pp. 55-95.

⁵⁰² E. Pecourt García, “Problemática de la cuestión preliminar en Derecho internacional privado”, Revista de Derecho Español y Americano, nº 14, 1966, pp. 11-60, esp. p. 20.

⁵⁰³ In Mexican jurisprudence, reference must be made to the old judgement of the Supreme Court of Justice of the Nation (SCJN in Spanish) of 25 July 1940, which argued that, although it is different from the institution of the fideicomiso regulated in Mexico, the institution of the Anglo-Saxon trust undoubtedly has a degree of equivalence (J.A. Silva, Derecho internacional privado. Su recepción judicial en México, Mexico, Porrúa, 1999, p. 192 and pp. 548-549, in which the judgement is reproduced).

⁵⁰⁴ In France, judgement of the Cour de Cassation (1er ch. civ.), 13 April 1999 (Compagnie Royale belge), Rev. crit. dr. int. pr., 1999, pp. 698 et seq. and the note of B. Ancel and H. Muir-Watt; Journ. dr. int., 2000, p. 315 et seq. and the note of B. Fauvarque-Cosson.

⁵⁰⁵ Cf. B. Ancel and H. Muir-Watt, abovementioned note, pp. 700-701.

⁵⁰⁶ Cf. A. Bucher and A. Bonomi, Droit international privé, 2nd ed., Basel, Helbing & Lichtenhahn, 2004, p. 146.

⁵⁰⁷ A.A. Ehrenzweig, Private International Law, I, 2nd ed, Leyden, Sijhoff-Oceana, 1972, pp. 103-104.

⁵⁰⁸ The judgement of the Spanish Supreme Court of 30 June 1960 did solve the issue that arose from the case Tarabusi, resorting to a stratagem according to which the foreign law claimed in matters of succession had not been proven, in order to apply the Spanish rules on matrimonial property; but although this was the ratio decidendi in the entire reasoning of the Court, a request to include all issues (matrimonial property and succession) to the rule of conflict in succession matters as legal order applicable in last resort. In the Spanish legal system, the art. 9.8 in fine of the Civil Code followed this path after its rewording contained in the Act 11/1990 of 15 October by submitting the succession rights of the surviving spouse to the same law which governs the economic effects of marriage. This is not the solution used by the whole Spanish doctrine, as it is criticized for being excessively inflexible and for not examining the details of particular cases.

⁵⁰⁹ V.gr. in the case Tarabusi / Tarabusi, the widow was granted rights as matrimonial property regime and as succession, it being understood that the applicable system during marriage is that of community of acquisitions.

⁵¹⁰ CONC.: Art. 14 of the Swiss PIL Act; art. 3080 (Cc Quebec); art. 13 of the Italian PIL Act; art. 6 of the Panamanian Code of PIL; art. 5 of the Austrian PIL Act; art. 10 of the Argentinian draft law; art. 63 of the Dominican draft law; art. 5 of the Bolivian draft law; art. 12 of the Uruguayan draft law; art. 6 of the Colombian draft law.

⁵¹¹ Art. 21 of the Hague Convention of 19 October 1996 on protection of children is an exceptional case of second-degree renvoi, which only applies to the Dominican Republic within the OHADAC zone.

⁵¹² R. Dávalos Fernández, “La aplicación del Derecho extranjero”, Revista Jurídica. Ministerio de Justicia, Havana, nº 12, July / September, p. 32.

⁵¹³ This option was implemented with the Rome Convention on the law applicable to contractual obligations of 19 June 1980. Its art. 15 on exclusion of renvoi establishes the following: “The application of the law of any country specified by this Convention means the application of the rules of law in force in that country other than its rules of private international law”. Likewise, the following texts maintained the exclusion: Rome I Regulation on the law applicable to contractual obligations (art. 20), Rome II Regulation on the law applicable to non-contractual obligations (art. 24), the Hague Protocol of 23 November 2007 on the Law Applicable to Maintenance Obligations (art. 12) and Rome III Regulation for divorce and legal separation (art. 11). In contrast, and although it is highly questionable, the European legislator incorporated the notion of renvoi in art. 34 of Regulation (EU) No 650/2012 in matters of succession.

⁵¹⁴ This Convention is in effect in Mexico and Venezuela.

⁵¹⁵ Interestingly enough, prior to the enactment of the Civil Code in effect (Law No. 59 de 1987), neither the Civil Code of 1889 nor the Code of Bustamante included provisions in that respect. Art. 19 of the Civil Code provides that “In the event of referral to a foreign law that, in turn, refers to the Cuban law, the latter shall be applied. Should the referral be to the law of another State, the renvoi shall be admissible insofar as the enforcement of the said law does not violate what is provided for under article 21. In this latter case, the Cuban law shall be applied”. It follows from this wording that the Cuban system generally admits return of the renvoi to Cuban law with a categorical formula “shall be applied” instead of more ambiguous expressions such as “shall be taken into account” (art. 12.2 of the Spanish Civil Code). It also follows that the Cuban legislator could not turn away from the fascination of second-degree renvoi, a genuine relic of the past, although the admission of foreign law in this case shall not disturb public policy of the forum. According to art. 4 of the Venezuelan PIL Act “When the competent foreign law declares that the law of a third State is applicable, and this third State, in turn, declares its own competence, the domestic law of this third State shall be applicable. / When the foreign law declares that Venezuelan law is applicable, this law shall be applied. / In cases not provided for in the preceding paragraphs, the domestic law of the State which is declared competent pursuant to the Venezuelan conflicts rule shall be applicable”.

⁵¹⁶ Bustamante was apparently an avowed enemy of the institution. Vid. J. Navarrete, El reenvío en el Derecho internacional privado, Santiago, Editorial Jurídica de Chile, 1969, p. 123; G. Parra Arangure, “El reenvío en el Derecho internacional privado venezolano”, Revista de la Facultad de Ciencias Jurídicas y Políticas de la Universidad Central de Venezuela, nº 79, 1991, pp. 141-240, esp, pp. 144-145.

⁵¹⁷ CONC.: Art. 7 of the Panamanian Code of PIL; art. 17 of the Swiss PIL Act; art. 3081 (Cc Quebec); art. 16 of the Italian PIL Act; art. 21 of the Belgian PIL Act; art. 6 of the Austrian PIL Act; art. 7 of the Polish PIL Act; art. 12.3º Cc (Spain); art. 64 of the Venezuelan draft law; art. 14 of the Argentinian draft law; art. 6. b) of the Mexican draft law; art. 64 of the Dominican draft law; art. 11 of the Bolivian draft law; art. 5 of the Uruguayan draft law; art. 3 of the Colombian draft law.

⁵¹⁸ Nicaragua: judgement of 31 October 1977, Boletín judicial, p. 327.

⁵¹⁹ J.D. González Campos and J.C. Fernández Rozas, “Art. 12.3º”, Comentarios al Código civil y Compilaciones forales, t. I, vol. 2, 2nd ed., Madrid, Edersa, 1995, pp. 894-926.

⁵²⁰ Art. 6.b) of the draft model code of PIL provides that foreign law shall not be applied “When the provisions of foreign law or the result of their application are contrary to the fundamental principles or institutions of Mexican public policy. Nevertheless, this foreign law may be recognised to a lesser extent when it gives rise to the recognition of rights on maintenance and succession”. Art. 21 of the Cuban Civil Code: “Foreign law shall not be applied insofar as its effects are contrary to the principles of the political, social and economic regime of the Republic of Cuba”.

⁵²¹ Art. 64 of the Dominican draft law includes a formulation identical to the disposition commented.

⁵²² V.gr., art. 11.1º of the Hague Convention of 2 October 1973 that provides that “The application of the law designated by this Convention may be refused only if it is manifestly incompatible with public policy (‘ordre public')”.

⁵²³ According to art. 5 of the Inter-American Convention on General Rules of Private International Law of 1979, “The law declared applicable by a convention on private international law may be refused application in the territory of a State Party that considers it manifestly contrary to the principles of its public policy (ordre public)”. Within the OHADAC zone, the Convention has been signed by Colombia, Mexico and Venezuela.

⁵²⁴ Vid. M. de Ángulo Rodríguez, “Du moment auquel il faut se placer pour apprécier l'ordre public”, Rev. crit. dr. int. pr., 1972, pp. 369-399.

⁵²⁵ Vid. art. 16 of the Italian PIL Act of 1995 and the commentaries of B. Boschiero, en Legge 31 maggio 1995, N. 218, Riforma del sistema italiano di diritto internanazionale privato (a cura di S. Batiatti), Milan, Cedam, 1996, pp. 1046-1062; vid. as well art. 21.3º of the Belgian Code of PIL of 2004.

⁵²⁶ CONC.: Arts. 18 and 19 of the Swiss PIL Act; art. 3079 (Cc Quebec); art. 17 of the Italian PIL Act; art. 20 of the Belgian PIL Act; art. 8.2º of the Polish PIL Act; art. 15 of the Argentinian draft law; art. 13 of the Bolivian draft law; art. 6 of the Uruguayan draft law.

⁵²⁷ Vid. art. 17 of the Italian PIL Act of 1995 and the commentaries of N. Boschiero, en Legge 31 maggio 1995, N. 218, Riforma del sistema italiano di diritto internanazionale privato (a cura di S. Batiatti), Milan, Cedam, 1996, pp. 1062-1072.

⁵²⁸ Arts. 18 and 19 of the Swiss PIL Act of 1987 are along the same lines. Vid. B. Dutoit, Commentaire de la loi fédérale du 18 décembre 1987, 2nd ed, Basel, Helbing & Lichtenhahn, 1997, pp. 36-50. Vid., as well, art. 20 of the Belgian Code of PIL of 2004.

⁵²⁹ Vid. P. Francescakis, “Quelques précisions sur des lois d'application immédiate et ses relations avec les règles des conflits des lois”, Rev. crit. dr. int. pr., 1966, pp. 1-18; id., “Lois d'application immédiate et règles de conflit”, Riv. dir. int. pr. proc., 1967, pp. 691-698.

⁵³⁰ P.A. De Miguel Asensio, “Derecho imperativo y relaciones privadas internacionales”, Homenaje a Don Antonio Hernández Gil, vol. III, Madrid, Centro de Estudios Ramón Areces, 2001, pp. 2857-2882.

⁵³¹ J.C. Fernández Rozas and S.A. Sánchez Lorenzo, Derecho internacional privado, 7th ed., Madrid, Civitas-Thomson-Reuters, 2013, pp. 134-136.

⁵³² The application of mandatory rules of third States is addressed as a possibility in the Rome Regulation (art. 9), which has, however, proceeded to a more significant restriction than its predecessor, the Rome Convention, by circumscribing this application to the laws of the country of enforcement. This leaves out some relevant cases which may require the application, for instance, of the law of the market affected by antitrust measures or the laws of the country of origin of an illegally exported cultural property. This restriction attempted to save the situation created by art. 7.1 of the more generous Rome Convention, subject to reservations by Germany, Ireland, Luxemburg, Portugal and the United Kingdom. In particular, the aim was to include the United Kingdom in the Rome I Regulation.

⁵³³ V.gr., Torricelli Act or Helms Burton Act in the United States.

⁵³⁴ CONC.: Art. 18 of the Italian PIL Act; art. 3077 (Cc Quebec); art. 9 of the Polish PIL Act; art. 12.5 Cc (Spain); art. 65 of the Dominican draft law; art. 9 of the Argentinian draft law; art. 7 of the Mexican draft law; art. 3 of the Bolivian draft law.

⁵³⁵ M.P. Andrés Sáenz de Santa María, “El art. 12.5º del C.c. y el problema de la remisión a un sistema plurilegislativo”, Revista General de Legislación y Jurisprudencia, t. LXXVII, 1978, pp. 72 et seq.

⁵³⁶ S.A. Sánchez Lorenzo, “Art. 12.5º”, Comentarios al Código civil y Compilaciones forales, 2nd ed., Madrid, Edersa, 1995, pp. 943-973.

⁵³⁷ It reproduces the art. 18 of the Italian PIL Act of 1995. Vid. G. Conetti, in Legge 31 maggio 1995, N. 218, Riforma del sistema italiano di diritto internanazionale privato (a cura di S. Batiatti), Milan, Cedam, 1996, pp. 1072-1975. It is also included in art. 7 del of the Mexican model code of PIL and art. 65 of the preliminary draft on PIL of the Dominican Republic of 2013. Vid. as well art. 17 of the Belgian Code of PIL of 2004.

⁵³⁸ Direct referral, as a technique for resolving the issue of referral to a system with more than one legal system, is addressed in the Hague Convention of 4 May 1971 on the Law Applicable to Traffic Accidents, in the Hague Convention of 2 October 1973 on the Law Applicable to Products Liability and in the Rome Convention of 19 June 1980 on the law applicable to contractual obligations. The system of direct referral is perfectly appropriate to the property nature of the subject matter, as it excludes the possibility of inter-personal conflicts, restricting itself, obviously, to the possibility of referral to a system with more than one legal system divided on a territorial basis. The indirect referral technique is used, on the other hand, in art. 16 of the Convention on the Law Applicable to Maintenance Obligations, concluded in the Hague on 2 October 1973, which provides that “Where the law of a State, having in matters of maintenance obligations two or more systems of law of territorial or personal application, must be taken into consideration - as may be the case if a reference is made to the law of the habitual residence of the creditor or the debtor or to the law of common nationality, reference shall be made to the system designated by the rules in force in that State or, if there are no such rules, to the system with which the persons concerned are most closely connected”.

⁵³⁹ CONC.: Art. 13 of the Argentinian draft law; art. 9 of the Uruguayan draft law.

⁵⁴⁰ H. Somerville Seen, Uniformidad del derecho internacional privado convencional americano, Santiago, Editorial Jurídica de Chile, 1965, pp. 170 et seq.

⁵⁴¹ A. Ferrer Correia, “La doctrine des droits acquis dans un syste`me de re`gles de conflit bilate´rales”, Multitudo legum ius unum: Festschrift fu¨r Wilhelm Wengler zu seinem 65, vol. II, Berlin, Inter Recht, 1973, pp. 285-320.

⁵⁴² Art. 5 of the Venezuelan PIL Act provides that “Legal situations created in accordance with a foreign law determining its own jurisdiction under internationally admissible criteria shall be effective in the Republic, provided that they are not in contradiction with Venezuelan rules of conflict, that the Venezuelan law does not claim exclusive jurisdiction over the subject-matter, or that they are not clearly incompatible with the essential principles of Venezuelan public policy”.

⁵⁴³ Art. 13.I of the Civil Code for the Federal District in common matters, and for all the Republic of Mexico in federal matters provides that: “The legal situations validly created within the bodies of the Republic or in a foreign State in accordance with its law shall be recognised”. For L. Pereznieto, the word “validly” is a term in accordance with which the judge of the forum, after referring to foreign law, has to decide whether or not the situation was created in accordance with foreign law. Still according to L. Pereznieto, the judge's scope for determining its possible validity must be sought in case-law, which gives the definitive answer (Derecho internacional privado. Parte general, 8th ed., Mexico, Oxford University Press, 2008, pp. 289-290). Vid., as well, V. García Moreno, “Reforma de 1988 a la legislación mexicana en materia de Derecho internacional privado”, Temas de Derecho Internacional Privado. Libro Homenaje a Haroldo Vallãdao, Caracas, Facultad de Ciencias Jurídicas y Políticas. Universidad Central de Venezuela, 1997, pp. 194 et seq. In the decision of 12 June 2001, 1.3º.C.262C in civil matters as regards the Direct Appeal 389, the third collegiate court of the first circuit established that for a legal act to be valid and produce legal effects in Mexico, it has to be analysed in accordance with the law of the place where it was drawn up. Basing its decision on section I of art. 13 of the federal civil code, the court established that for the legal situations validly created to have legal effects in Mexico, it was essential to analyse this section I along with section V of the same article (“Except in the cases provided for in the aforementioned sections, the legal effects of acts and contracts shall be governed by the law of the place in which they are to be executed, unless the parties validly designated another applicable law.”). Indeed, whether or not the act which produced said situations is valid in accordance with this foreign law has to be studied.

⁵⁴⁴ V.gr. art. 2050 of the Peruvian Civil Code; art. 7 of the Austrian Federal PIL Act of 15 June 1978. Art. 66 of the Dominican draft law includes a text identical to the article commented.

⁵⁴⁵ J. Samtleben, Derecho internacional privado en América latina. Teoría y práctica del Código Bustamante, vol. I, Parte General, Buenos Aires, Depalma, 1983, p. 205.

⁵⁴⁶ In Venezuela, a worker sued for the difference in payment for the services he provided in Argentina, Guatemala and Venezuela and his claim was the subject of judgement No. 1633 of 14 December of 2004, and later of the declaratory judgement of 9 August 2005 of the chamber of social cassation of the Supreme Court of Justice, which considered that the worker was to be indemnified in accordance with the legislation of each of these countries, on the basis of art. 7 of the CIDIP Convention on General Rules of 1979. Case Enrique Emilio Álvarez Centeno vs Abbott Laboratories, C.A y Otra, http://www.tsj.gov.ve/decisiones/scs/agosto/1099-090805.htm.30/08/2011. http//www.tsj.gov.ve.

⁵⁴⁷ V.H. Guerra Hernández, “Derechos adquiridos”. Ley DIPr comentada, t. I, Caracas, Facultad de Ciencias Jurídicas y Políticas, Universidad Central de Venezuela, Caracas, 2005.pp. 232-233.

⁵⁴⁸ Art. 179 of the Panamanian PIL Act; art. 954 LEC/19881 (Spain); art. 64 of the Italian PIL Act.

⁵⁴⁹ R. Arenas García, “Relaciones entre cooperación de autoridades y reconocimiento”, AEDIPr, t. 0, 2000, pp. 231-260.

⁵⁵⁰ M. Requejo Isidro, “Sobre ejecución y execuátur”, Revista Jurídica Española La Ley, 1999, 5, D-236, pp. 1898-1901.

⁵⁵¹ J.C. Fernández Rozas and S.A. Sánchez Lorenzo, Derecho internacional privado, 7th ed., Madrid: Civitas-Tomson-Reuters, 2013, pp. 1293 et seq.

⁵⁵² A. Borrás Rodríguez, “Eficacia ejecutiva internacional de los títulos extrajudiciales”, Anales de la Academia Matritense del Notariado, nº 42, 2004, pp. 29-54.

⁵⁵³ CONC.: Art. 27 of the Swiss PIL Act; art. 25 of the Belgian PIL Act; art. 954 LEC/1881 (Spain); art. 139 of the Bolivian draft law.

⁵⁵⁴ J.D. González Campos, “Reconocimiento y ejecución de decisiones judiciales extranjeras y respeto de los derechos humanos relativos al proceso”, Soberanía del Estado y Derecho internacional. Homenaje al Profesor Juan Antonio Carrillo Salcedo, Seville, 2005, pp. 695-716.

⁵⁵⁵ S. Álvarez González, “Orden público y reconocimiento de resoluciones extranjeras: límites a la valoración del juez nacional y orden público comunitario”, La Ley, 2000, 6, D-179, pp. 2005-2009.

⁵⁵⁶ P.A. de Miguel Asensio, Eficacia de las resoluciones extranjeras de jurisdicción voluntaria, Madrid, Eurolex, 1997.

⁵⁵⁷ Vid. supra, commentary on art. 7.

⁵⁵⁸ Vid., for all, P. Jiménez Blanco, “La eficacia probatoria de los documentos públicos extranjeros”, AEDIPr, t. I, 2001, pp. 365-404.

⁵⁵⁹ CONC.: Art. 172 of the Panamanian PIL Act; art. 73 of the Dominican draft law.

⁵⁶⁰ Within the OHADAC zone, Antigua and Barbuda, Barbados, Belize, Colombia, Costa Rica, Honduras, Mexico, Panama, Dominican Republic, Saint Kitts & Nevis, Saint Vincent & the Grenadines, Suriname, Trinidad and Tobago and Venezuela have signed this Convention.

⁵⁶¹ Vid. M. Requejo Isidro, Ley local y forma de los actos en el DIPr español, Madrid, Eurolex, 1998, pp. 35 et seq.

⁵⁶² P. Gothot and D. Holleaux, La Convención de Bruselas de 27 Septiembre 1968, (translation by I. Pan Montojo), Paris, Júpiter, 1985, p. 229; J. Maseda Rodríguez, “El concepto de documento público: jurisdicción territorialmente competente para la ejecución en el marco del Convenio de Bruselas de 1968”, La Ley: Unión Europea, 1999, nº 4829, pp. 1-6, p. 2.

⁵⁶³ Therefore a distinction should be made between two concepts: the “presumption of authenticity” (regarding the authorship of the document) and the “presumption of veracity” (regarding the facts recounted); vid. Ch. Reithmann, in Ch. Reithmann and D. Martiny, Internationales Vertragsrecht, 5th ed., Colonia, Dr. Otto Schmidt, 1996, pp. 510-511).

⁵⁶⁴ CONC.: Art. 196of the Swiss PIL Act; arts. 126 y 127 of the Belgian Code of PIL; art. 72 of the Italian PIL Act; art. 3 of the Argentinian draft law.

⁵⁶⁵ Cf. P. Level, Essai de systématisation sur les conflits des lois dans le temps, Paris, 1959, LGDJ, p. 290.

⁵⁶⁶ D. Donati, “II contenuto del principio della irretroattivitá della legge”, Riv. italiana per le Science Giuridice, vol. LV, 1915, pp. 235-257 and 117-193.

⁵⁶⁷ This is the phrasing of art. 196.2º of the Swiss PIL Act of 1987.

⁵⁶⁸ Not all cases of succession in time of the rule of conflict can be solved by applying the same rules. A series of hypothesis can be drawn up: a) succession in time of legislative rules of conflict; b) succession in time of case-law or customary rules of conflict; c) rule of conflict in effect, modified by another case-law or customary rule; d) case-law or customary rules of conflict, modified by another subsequent legislative rule; e) legislative rule of conflict, modified by another rule comprised in an international treaty; f) succession in time of conventional rule of conflict. Vid. F. A. Mann, “The Time Element in the Conflict of Law”, British Yearb.Int'l L., vol. XXXI, 1954, pp. 217-247; P. Roubier, Le droit transitoire (Conflits de lois dans le temps), 2nd ed., Paris, 1960, pp. 23-29.

⁵⁶⁹ That is the solution Germany adopted, with the transitory provision included in the Reform Act of the EGBGB of 25 July 1986, REDI, vol. XL, 1988, pp. 326-327.

⁵⁷⁰ P. Roubier, “De l'effet des lois nouvelles sur les procès en cours”, Mélanges offerts à Jacques Maury, t. II, Paris, 1960, pp. 525 et seq.

⁵⁷¹ Cf. A. Remiro Brotóns, Ejecución de sentencias extranjeras en España, Madrid, Tecnos, 1974, pp. 65 et seq.

⁵⁷² H. Kelsen, “Derogation”, Essays in Jurisprudence in Honor of Roscoe Pound, Indianápolis, Bob Merrill Hill Co, 1962, pp. 339-355.