OHADAC.com • OHADAC Texts

- - TITLE I – COMMON PROVISIONS

Article 1

Subject matter of the law

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

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

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

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

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

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

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

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

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

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

Commentary

Article 2

Matters excluded

The following are excluded from the scope of this law:

tax, customs and administrative matters;
Social Security;
commercial arbitration;
bankruptcy and other analogous proceedings.

90. Article 2, whose European ancestry is obvious²²¹, contributes some additional clarifications regarding the scope covered by the model law, as does the Dominican draft law.

91. It thus confirms Article 1 by excluding tax, customs and administrative matters, which from its point of view relate to public law. It is by no means useless to insist somewhat on this point: historically speaking, the division between private and public law is a corollary of the distinction that structures the organisation of the judiciary in some States by distinguishing between judicial and administrative courts. Now, the correspondence between authorities and subject matter is not always strict; in the French system, for instance, the jurisdiction with which the judicial courts are endowed in tax or customs matters may blur the dividing lines. Article 2, i) substitutes its own architecture for national creations which may have been rendered somewhat baroque by their specific historical experience²²².

92. Disputes in Social Security matters are also excluded from the scope of the model law; this is justified and measured by their mixed nature, which in many regards bears the mark of public law. The relations between provident institutions and either of the two categories of contributors, i.e. employers and employees or eligible parties, do not come under the model law. Such relations are set up on the mode of compulsory subjection or membership rather than of equality and autonomy of the parties involved. Conversely, remedies against third parties responsible for any damage caused by the institution having compensated the insured do not bear the mark of such subjection and come within the scope of the model law, provided that they comply with ordinary law.

93. Arbitration has also been removed from the scope of the model law. It suffices here to recall that international arbitration has already given rise to quite a dense network of international agreements and that it may not be advisable to disturb their operation by introducing additional special norms. Indeed, within the framework of the OHADAC programme such an exclusion hardly needs to be justified; arbitration forms the subject matter of a specific study aimed at preparing model rules. Nevertheless, the model law includes some rare provisions whose purpose is to ensure coordination between state courts and arbitration activities.

In contrast to the Dominican draft law, the exclusion concerns not only international commercial arbitration, but also civil arbitration, or more precisely arbitration inasmuch as it relates to differences pertaining to civil law. In fact, at the international level the role and characteristics of this method of resolving disputes do not vary significantly depending on whether the matter to be settled is a quarrel between heirs or a difference between a supplier and his customer.

94. Finally, Article 2, iv) rules out insolvency proceedings, that is, “proceedings relating to [...] debtors who have declared themselves unable to meet their liabilities, insolvency or the collapse of the debtor's creditworthiness, which involve the intervention of the courts culminating in the compulsory ‘liquidation des biens' [liquidation of assets] [...] or at least in supervision by the courts”²²³; this is how the Court of Justice of the European Community marks out the scope of the exclusion provided by Article 1st, §27 of the 1968 Brussels Convention, while specifying that that exclusion concerns only actions that “derive directly from the bankruptcy and [...] [are] closely connected with the proceedings for the “liquidation des biens” or the “règlement judiciaire”²²⁴. It follows, for instance, that the incrimination of the officers of a firm on the basis of the amount of the liabilities is outside the scope of the model law, whereas claims against the debtor aimed at securing payment for materials purchased in order to continue a company's operation during insolvency proceedings is not affected by the exclusion and must comply with the rules of the model law. Thus defined, the exclusion is justified both by the nature of the proceedings and by their modalities, which entrust the public authorities with an important role; we are dealing with a procedure which is a substitute for compulsory enforcement and which, in the common interest of all the operators on a market, aims at stabilizing business relations. Bankruptcy is not viewed as a mere matter of private interest.

95. Unlike the Brussels I system, Article 2 of the model law does not exclude the status and capacity of natural persons, marital property systems, wills and inheritance, all of which naturally come within the general scope of private international law.

But it must also be stressed that an exclusion that strikes at the principal subject matter of a dispute may extend to issues touching on those non-excluded matters when the latter are raised incidentally. Likewise, conversely, a court to which a dispute concerning, on a principal basis, a non-excluded issue has been referred may, depending on what its procedural law authorises, deal with incidental issues that fall within the scope of the exclusion.

Commentary

Article 3

International treaties

1. The provisions of this law apply inasmuch as they are in accordance with the provisions of the international treaties to which the Caribbean is party. In the event of a conflict, the provisions of the treaties shall prevail.

2. For the construction of such treaties, their international character and their required uniform interpretation shall be taken into account.

96. The first paragraph of this Article 3 establishes or confirms a hierarchy between norms within the legal order of a State adopting the model law²²⁵. That adoption, which constitutes a unilateral normative step on the part of the State, cannot result in the alteration of any commitments undertaken by treaty by the latter towards one or several other States to introduce into its legal order (and therefore to oblige its internal organs to enforce) the norms reflecting the provisions of the treaty. Paragraph 1 simply recalls a solution which has gained very wide acceptance in constitutional law, establishing the supremacy of international treaties, or more exactly of the norms whose introduction into the domestic system they command; this supremacy, which results from the international commitment, impacts the rules unilaterally adopted by the State and pertaining to its national legislation, even when they are borrowed from an instrument of international harmonisation such as a model law.

97. Paragraph 2 reiterates a guideline found in several multilateral international treaties, which aims at fostering a common interpretation between the States that are party to them. This is done by replacing the reference to the legislative principles, categories and policies governing the operation of the system of domestic law, which varies from one legal order to another, by a reference common to the principles and ends chosen by the treaty; this is what is meant by “taking into account the international character” of the latter's provisions.

To the extent that the rules deriving from the model law belong, within the legal order of a State adopting it, to the national legal system, one and the same situation may come to be perceived differently, as regards its qualification or the effects it produces, according to whether it is considered from the viewpoint of the treaty or from that of the national system. Paragraph 2 rules out the resolution of such divergences or antinomies in favour of national conceptions resulting from the ‘naturalisation' of the model law.

98. From a rational viewpoint, such a solution is not mandatory. A formulation inciting cooperation between the States having adopted the model law could, without modifying §1, have stated:

Art. 3. International treaties. 1. The provisions of this law shall apply inasmuch as they are in agreement with the provisions of the International Treaties to which the Caribbean is party. In the event of a conflict, the provisions of the treaties shall prevail.

2. However, as in the interpretation of such treaties, the construction of the provisions of this law shall take into account their international nature and their required uniform interpretation.

The guideline to interpretation resulting from the above wording is completely different; it would doubtless not modify in any way the requirement of referring to the principles and objectives of the treaty, as well as to its economy, when dealing with the interpretation of the rule laid down by that treaty, and neither would it challenge the supremacy of treaty-derived law, but it would loosen the bond between the rules of the model law and the national system of domestic law into which their adoption would spontaneously integrate them, and would link the interpretation of those rules to the principles and objectives of the model law. Such an inflexion might incidentally reduce the risks of discordance with the treaty-derived law. Above all, its first virtue would be to foster the harmonisation of private international law solutions between the various States having adopted the model law, thereby guaranteeing the consistency of their approach.

But we must not conceal the practical difficulties which would be encountered in following such a guideline, as it involves taking into account elements whose definition is delicate; at present, those elements seem, among the advocates of this guideline, to come down to the jurisprudence of each of the States having adopted and enforced the model law; the decisions making up that jurisprudence should, therefore, be collected and made available to the courts and legal practitioners of the “OHADAC club” in order to allow them to ponder and motivate the interpretation which they choose to adopt²²⁶.

Commentary

Article 4

Special laws

The provisions of this law shall apply subject to any special laws regulating private international relationships. In the event of a conflict, the special laws shall prevail.

99. Specialia generalibus derogant. The model law is a body of general legislation relating to private international law; as such, it must lay down the principles of that discipline and stake out the paths to be followed in the absence of legally defined specific solutions²²⁷. Therefore, in the face of special laws settling this or that specific problem, it is only called upon to orient the interpretation that may sometimes be required by the variety and complexity of the situations to which they refer; it is not up to the model law to set aside and replace special laws.

Commentary

Article 5

Determination of domicile and habitual residence.

1. For the purposes of this law:

domicile shall be understood to mean the place of habitual residence;
habitual residence shall be understood to mean:
1. the place where a natural person has his principal abode, even in the absence of any registration and independently of any residence or settlement permit. In order to determine that place, any circumstances of a personal, family and professional nature revealing durable connections to such a place shall, in particular, be taken into account;
2. the place where the company or entity has its registered office, central administration or main centre of business;
3. the place where the administration of a trust or the centre of its main interests is located.

2. No natural person can have two or more domiciles.

100. Generally speaking, the model law opts for connection through domicile rather than nationality and seeks to specify what is meant by domicile when its provisions use that criterion. Distinctions should then be made depending on whether a natural person, an entity or a trust is involved²²⁸.

111. As regards entities, the model law accepts three possible locations: the place of the registered office, that of the central administration and the principal place of business. Each of them has its own set of difficulties. The principal place of business may fail when the company - for instance an airline resulting from a merger between two companies based in different countries - continues to conduct more or less equal shares of its business in each of them, or when the company develops operating, manufacturing, transformation and distribution activities in different countries... The place of the central administration may be that of the main operational management or the meeting place of the company's management and control organs... The registered office, which heads the list, is traditionally liable to be split into a registered office as set by the Articles and an actual registered office; unlike Article 60, §1 of the Brussels I Regulation from which it draws its inspiration, Article 5 does not resolve that hesitation. A conceivable interpretation which would, nevertheless, allow an escape from the dilemma of the registered office as set by the Articles and the actual registered office, would consist in considering that the latter is the place of the firm's central administration and that, by registered office, b) means only the one mentioned in the Articles, which is generally located in the territory of the State in which the entity was incorporated and registered.

112. In spite of those uncertainties, the trio of locations will not give rise to any insurmountable difficulty when domicile is used to determine jurisdiction: it offers the plaintiff an option, and it will be up to him to persuade the court, in the event of an objection, that his choice does in fact correspond to one or another of the connections listed; the system is thus characterised by great flexibility, which will be appreciated by plaintiffs, in return for the non-negligible risk of encouraging pleas of lack of jurisdiction (which may be raised for dissuasive or dilatory purposes) and of fostering simultaneous proceedings (a remedy for such conflicts may be found in Article 20).

The problems would doubtless be more acute if the domicile of the entity as understood above were called upon to determine the law applicable to companies; its “floating” character would impact the designation of the applicable law and result in the instability of the company's legal status. Article 27 of the model law prefers a connection via the place of incorporation and the location of the registered office. Such a connection may appear cumulative, but corresponds in most cases to the location of the registered office as set by the Articles.

Thus restricted to jurisdictional conflicts, an alternate connection on the basis of the registered office, the location of the central administration and the principal centre of business, on the one hand makes available to the State a ground of exclusive jurisdiction under Article 9 which is liable to encompass rather broadly the disputes relating to companies significantly integrated into its economic area and, on the other hand, prompts some mitigation of the rigor with which the legitimacy of the jurisdiction of the foreign courts whose decisions will be subject to recognition or enforcement is to be appreciated.

113. As regards trusts, which the model law means not to neglect since a certain number of legal systems pertaining to the OHADAC area are acquainted with that institution and intend to foster its use, Article 5 §1, ii), c) proposes two criteria for the identification of the domicile: the place where the administration of the trust is located and the centre of its main interests.

It is obviously in the territories belonging to the British heritage and located within the orbit of common law that trusts are widespread. However, as a result of the competition between legal systems, the institution has diverged somewhat from the English model and rather resembles that of the “international trust”²²⁹, judged to be more attractive and no doubt more accessible to settlors with a civil-law culture; this “international trust” model is the one set up by Articles 2 and 3²³⁰ of the Hague Convention dated 1st July 1985 on the law applicable to trusts and their recognition, in order to ensure a place for voluntary trusts in countries whose tradition is Romano-Germanic. Although that convention does not concern itself with the domicile of trusts, it indirectly supplies a guideline allowing their localisation via the rules governing conflict of laws (Art. 6 and 7). Those rules implement the principle of autonomy and, on a subsidiary basis, of the closest or nearest connection in order to determine the applicable law, to whose observance recognition is subject (Art. 11). In that perspective, the law chosen by the settlor should first be referred to. In the absence of such a choice, various elements shall be taken into account, such as the place of administration of the designated by the settlor, the place of the assets of the trust, the place of residence or business of the trustee, the objectives of the trust and the places where they are to be achieved. However, the c) of §1 of Article 5 does not grant first place to the intention of the settlor, which it does not mention explicitly, even though it does not rule out the effect of that intention for the determination of the domicile.

114. Under the model law, the domicile is theoretically called upon to intervene as regards both conflict of jurisdiction and conflict of laws. However, no special provision aimed at determining the law applicable to trusts that might prevent their international status from being governed by the conflict solutions found in Part III, Chapter 1st (unless the latter are supplanted by those of the Hague Convention) has been introduced. On the other hand, it would appear dangerous for a claimant disputing the existence or operation of the trust to leave the choice of the court having exclusive jurisdiction to the settlor alone under Article 10. For instance, disputes concerning the internal relations of a trust operating from the Cook Islands might be subject to the exclusive jurisdiction of the courts of Nevis (or Saint Vincent, Porto Rico or even the Dominican Republic) if thus provided by a mere stipulation of the settlor, whose obvious purpose would be to put several thousand miles between the plaintiff and the court of competent jurisdiction²³¹. Therefore, Article 5, §1, c) bases the domicile on two more objective elements, which summarise the non-limitative list found in Article 7 of the Convention while remaining permeable to the influence of the settlor's intention: the place of administration of the trust and the centre of its main interests. The first is based on the totality formed by the trust assets, which are grouped together in a “separate fund [...] [from] trustee's own estate” This implies autonomous administration, associated with specific liability; the domicile of the trust would be the place where the trustee exercises his powers and assumes his liability, whether that place is determined by the intent of the settlor or left up to the initiative of the trustee alone. The second element is based on the ends for which the settlor created the trust; it points to the place where they are mainly pursued, whether this is the place of the assets whose income is allocated to the beneficiary or the place of performance of the obligations.

Although each of these elements ensures the trust's insertion into a socio-economic environment, they do not necessarily converge. As in the case of the domicile of entities (see above), a court whose jurisdiction is disputed will have to require the plaintiff who chose to refer the matter to it to evidence that his choice is based on one of those two elements.

115. Finally, as regards the domicile of natural persons, Article 5, ii, a) chooses to reduce it to their habitual residence. This connection has met with some success, or at any rate has been rather widely adopted by contemporary legislations and international instruments.

It is true that in the Romano-Germanic tradition domicile, for its part, is a slightly disconcerting concept²³²; it is the subject of a dogmatic definition associating principal establishment and animus manendi, whereas it is the very exemplar of a functional concept. If only on account of the ease of interpretation offered by the subjective component, the significance of the relation to a territory varies according to the areas in which it is appealed to. Levasseur has shown that domicile depends on the law applicable to the institution to whose operation it contributes²³³, thus highlighting the protean character of the concept, which is frequently contrasted with the certainty and stability of nationality.

Precisely in order to combat instability, the domicile of a natural person is set, for private international law purposes, at the place of his or her registration on the population register by the Belgian code of 2004. But in so doing that code obviously considers only domicile in Belgium, where such a register exists; it does not claim to make such a domicile a universal principle at the international level, or to totally ensure the sincerity of the registrations; moreover, many of its provisions - not restricted to personal and family law - show a preference for habitual residence.

The model law opts for another solution. It concentrates on the objective element by equating domicile with habitual residence (see the 1979 Inter-American Convention, Art. 2. 1, Venezuelan law, Art. 11). By so doing, it joins a trend which is dominant in comparative private international law, thus reinforcing the position of domicile as against nationality. But this move, which is quite appropriate in view of the demographic situation of the OHADAC area, involves no more than a semi-definition of habitual residence. At least paragraph a) marks out the process which should allow a natural person's place of habitual residence to be identified. It begins by rejecting the formal criterion of registration on a population register (see the Rumanian civil code, Art. 2570, §1) and even the possession (or not) of a residence permit, in favour of a factual notion: the place where the natural person has settled on a principal basis. It thus uses etymology (by referring to the place where the individual repeatedly [: re] settles or rests [: sedere]), insisting on the usual and regulated character of such behaviour and avoiding any reference to the intentional element. The text goes on to supply a certain number of indications liable to demonstrate the individual's insertion into the local social environment, resulting from participation in a network of personal, family and professional relationships (see the Rumanian civil code, Art. 2570, §2), all of which presupposes a lasting presence, a settlement. By thus laying down the course to be followed, par. a) makes it possible to determine a connection which is relatively stable and naturally flexible, since one is led to appreciate, on a case-by-case basis, various factors whose relative weight is not predetermined; it is obvious that personal and family ties will be stronger than professional factors when defining the domicile of a minor child or of a housewife, whereas, on the contrary, the fact that an unmarried physician has his practice on the other side of the border where his office is located may be decisive.

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.