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Monday, Oct 18th 2021

The ACP Legal Association

  • OHADAC and ACP Legal

    The partisans of this project, called OHADAC (Organisation for the Harmonisation of Business Law in the Caribbean), decided to meet within the framework of the association ACP Legal, to help interested Caribbean States to implement the project.

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  • OHADAC in brief

    This brochure has been published by the ACP Legal Association.

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DRAFT OHADAC MODEL LAW RELATING TO PRIVATE INTERNATIONAL LAW

Article 9

Sole jurisdiction

The Caribbean courts shall have sole jurisdiction for disputes whose subject matter is:

  1. rights in rem in immovable property and tenancies of immovable property when the property is located in Caribbean territory;
  2. the formation, validity, nullity and dissolution of companies or entities whose domicile is located in Caribbean territory, as well as the validity of any agreements and decisions of their organs affecting their existence erga omnes and the rules governing their operation;
  3. the formation, validity, nullity and extinction, as well as the existence in relation to third parties, of trusts domiciled in Caribbean territory;
  4. the validity or nullity of entries in a Caribbean register;
  5. the registration or validity of patents and other similar rights giving rise to a deposit or registration, when the deposit or registration was filed or made in the Caribbean;
  6. the recognition and enforcement in Caribbean territory of judicial decisions and arbitral awards handed down abroad;
  7. provisional and conservatory measures which must be enforced in the Caribbean;
  8. the determination of Caribbean nationality.

137. Although the cases in which the Caribbean courts have sole jurisdiction are the first to which Chapter 2 of Part II is devoted, they must not be viewed as establishing a mechanical jurisdiction to which the following provisions would provide some exceptions253. The model law does not follow the outline of the 1968 Brussels Convention or of the Brussels I Regulation, which give preference to the mechanism of general jurisdiction based on the domicile of the defendant, thus suggesting that the other grounds of jurisdiction are derogatory and subject to strict interpretation. It sets them forth in the order chosen by distinguished commentators of those European instruments254. That order expresses, no doubt better than a sort of hierarchy of grounds of jurisdiction, an operating priority of sole jurisdiction over voluntary extensions of the scope of jurisdiction and the provisions based on domicile: whoever wishes to refer a dispute to the Caribbean courts must seek to determine whether the latter are designated under some grounds of sole jurisdiction; if not, he shall then seek to determine whether they are designated by a choice of jurisdiction clause; if not, subject to making sure that no derogatory clause can move the case abroad, he will verify that the defendant is domiciled in the Caribbean, or that on account of the nature of the disputed interests the lawsuit can usefully be referred to the Caribbean courts. This operating chronology, which goes down the ladder of eliminatory force, does not prejudge the status of the various forms of jurisdiction: sole, voluntary, general or specific.

138. Listed imitatively in Article 9, the cases of sole jurisdiction immediately lead to the Caribbean courts when the connecting element found in them is materialised within the Caribbean legal order. Five of them are included in the catalogues found in Article 22. 1 of the LOPJ (Spain) and Article 22 of the Brussels I Regulations; they are provided in the case of buildings, companies and entities, registrations on public registers, intellectual rights and enforcement of decisions. The model law completes that list by adding jurisdiction in matters of trusts, provisional measures and Caribbean nationality. That jurisdiction is exclusive in the sense that, from the Caribbean point of view, the litigants may not submit the dispute to courts other than the Caribbean courts. No competition with foreign courts is allowed; the plaintiff has no choice; he must refer his claim to the Caribbean courts. This necessary devolution presents several characteristics.

139. In the first place, sole jurisdiction is global jurisdiction (or international, or again general jurisdiction, according to Bartin's terminology) in the sense that the designation resulting from the dispute's being located within the Caribbean legal order concerns all of the judicial organs; this is the solution adopted both by the law of the European Union (Brussels I Regulation, Art. 22) and by Spanish law (LOPJ, Art. 22, 1). It is doubtless justified by the idea of a significant implication, in the disputes thus reserved, of the State's own interest at the international level, much more than by a specific relationship connecting the case to a definite court. Consequently, it is up to the Caribbean State and legal order, once their general jurisdiction has been established, to identify within the national judicial system, through their internal jurisdictional rules, the court to which the case shall be referred255.

Second, exclusive jurisdiction is mandatory jurisdiction. It follows that the clauses under which the parties may have agreed to entrust the dispute to this or that court of a foreign State are inoperative and cannot weaken Caribbean jurisdiction. This unavailability of Caribbean jurisdiction is the natural corollary of its exclusive character: by authorising referral to the Caribbean courts only, it does away with competition between courts and does not leave any choice up to the litigants.

Third, exclusive jurisdiction has two effects: an obligation of referral to the Caribbean courts and a prohibition from going before foreign courts. The positive effect, i.e. the obligation, affects direct jurisdiction and founds the legality of the proceedings initiated before the Caribbean courts; the negative effect affects indirect jurisdiction and decrees that any suit prosecuted before a foreign court is illegal, so that the resulting decision cannot be recognised and enforced in the Caribbean (see Art. 74, iii).

140. Fourth, exclusive jurisdiction produces a specific effect in the relations between the States that have adopted the model law. This is what some authors have called the reflex effect256 or mirror effect. It will lead the Caribbean court to which the case has been referred to disclaim jurisdiction when the grounds of jurisdiction listed in Article 9 are materialised within the legal order of a foreign State. By the effect of Article 9, that foreign State claims a monopoly over the dispute, as the Caribbean would have done on the same basis if the grounds of exclusive jurisdiction had been materialised in its own territory. The special value of this reflex effect becomes clear when the circumstances of the case do not allow the Caribbean judge to rely on Article 9, but would offer him the possibility of basing his jurisdiction on another rule, for instance when the defendant's domicile is located in the Caribbean (Art. 11); in that case, if the suit is brought and prosecuted in the Caribbean, there is no guarantee that the claim will not also be submitted to the courts of the foreign State, so that the risk of conflicting proceedings and therefore of conflicting decisions is in no way prevented. Now, while those risks of conflict are resolved from the viewpoint of Caribbean law in Article 74, which, at the level of recognition and enforcement, leads to a preference for the Caribbean suit or judgment and to the censure of the foreign suit or judgment (Art. 74, iv or v), this can be no more than a pseudo-solution for the parties. Indeed, it is obvious that in practice, since the difference is located abroad, the Caribbean decision will not prevail there and will be unable to give rise to compulsory enforcement; on the contrary, the foreign judgment, while disqualified in the Caribbean, will be readily enforced by the authorities of the State in whose name it was handed down. By admitting the reflex effect, which guarantees a single lawsuit thanks to the Caribbean court's disclaimer of jurisdiction, Article 9 submits to the requirements of procedural economy. Moreover, it is in line with the method of “soft” unification embodied by the model law by ensuring a common solution for the States adopting it. Conversely, it may appear more daring to provide such a jurisdictional division of labour with States that have not adopted the model law and that, rather than setting out in the direction of harmonisation, prefer to retain their own system of international jurisdiction, whose tenor may be different, whether the differences concern connection or qualification of the claims. This may result in leaving jurisdiction to the courts of some third-party State whose claims to it may be less relevant than those of the Caribbean courts.

Thus, the reflex effect simply obliges the Caribbean court to disclaim jurisdiction, if necessary of its own motion, in one case only, that is, when it is sure that the dispute will be settled abroad by courts whose jurisdiction cannot be disputed (Art. 17, §4 )257; this is guaranteed, precisely, by the adoption of the model law by the State in which the criterion provided in Article 9 is materialised. The reflex effect gives rise to a judicial cooperation network that may develop into a true OHADAC judicial area.

141. Article 9 lists eight cases of exclusive jurisdiction. Only one of them is clearly outside the territorial dimension; it is the last on the list (Art. 9, viii), which establishes the jurisdiction of the Caribbean courts concerning disputes relating to the determination of Caribbean nationality. It is easy to understand why, in such a matter, the claim of the Caribbean courts is not based on a territorial connection, on the one hand, and on the other hand is exclusive. An individual's nationality may doubtless be based on jus soli, but the relationship which it establishes between the individual and the State is a personal bond which endures even beyond borders and retains its vitality and authority wherever the individual is. That bond, which forms the subject matter of the suit, no doubt concerns the private individual who is its subject; but it also concerns, and very closely, the State which, as a sovereign entity, has a monopoly when it comes to determining who are its nationals, that is, its personal component. The necessary impact on that component of judgments ruling, on a principal basis, on the granting, acquisition or loss of nationality justifies exclusive jurisdiction. The State's interest, evidenced by the enforceability of its own law, is too closely involved for it to leave such a matter to a foreign court. That fact is so clear that we may conjecture that whoever, on a principal basis, claims a certain nationality or disputes his having it will submit the matter directly to the courts of the State concerned. As a result, there is hardly any chance that the question of the reflex effect of exclusive jurisdiction will come up before the Caribbean courts.

142. But a foreign court may consider that it has jurisdiction to rule on a matter of Caribbean nationality. This may happen, for instance, because its own rules of international judicial law allow it to rule on an incidental basis on a matter of nationality which must be resolved in order to settle the principal claim submitted to it in its capacity as the court of the domicile of the defendant. This possibility concerns the Caribbean in connection with the recognition of the decision thus secured abroad: under Article 74, iii), is the exclusive jurisdiction provided in Article 9 an obstacle in the way of the legality and therefore of the effectiveness of that foreign decision? Although the wording of Article 9 does not draw any distinction between a principal claim and a collateral issue, it seems that here the exclusive character of international jurisdiction and the monopoly which it grants the Caribbean courts must be restricted to cases in which Caribbean nationality is the principal subject matter of the suit. A refusal to recognise the foreign decision would lead to a denial of justice allowing the suit to be reiterated before the Caribbean court (Art. 15, ii), whereas the solution to the issue of Caribbean nationality dealt with on an incidental basis in the foreign suit receives its authority, at most, in view of the solution given to the principal issue; the costs and delays required by the duplication of the proceedings would be so disproportionate as to interfere with the right to effective judicial protection, and such an interference could not be justified by the minor disturbance which is feared, consisting in its recognition. Reciprocally, a restriction to the sole cases in which the issue of Caribbean nationality forms the principal subject matter of the suit must be admitted when interpreting and enforcing Article 17 §4: the Caribbean courts shall disclaim jurisdiction of their own motion when a question relating to a foreign nationality, for which the courts of another State having adopted the model law have exclusive jurisdiction under Article 9, is referred to them on a principal basis; on the contrary, if an issue of foreign nationality is raised on an collateral basis in connection with a principal issue for which they have jurisdiction, the Caribbean courts need not decline.

This point of interpretation, which relates to the scope of the reflex effect, also concerns the other grounds of exclusive jurisdiction listed in Article 9, to which, for the same reasons, the same solution applies.

143. These other grounds of exclusive jurisdiction are all territorial in nature. This territoriality results from considerations of sound administration of justice and procedural economy whose intensity varies from case to case, but on a relatively narrow scale. The interest of the State also comes into play for each of them. That interest is involved by claims aiming at securing or denying the recognition and performance of foreign decisions and arbitral awards in the Caribbean (Art. 9, vi), since we are dealing with the integration into the Caribbean legal order of decisions taken outside its own judicial and coercive system in the name of a foreign sovereign or through the enforcement of a private agreement; no authority other than that of the Caribbean may, without compromising Caribbean sovereignty and the Caribbean organisation of justice, rule usefully on such matters. In this area, the operating scope of that sovereignty and organisation coincide with the national territory. It must, moreover, be observed that exclusive jurisdiction here encompasses, beyond the procedures for the reception of decisions, the disputes relating to enforcement measures; indeed, the latter materialise the State's monopoly on the use of legitimate constraint, and that monopoly is limited to the national territory. That last justification, together with the previous one, also holds as regards conservatory measures to be enforced in Caribbean territory (Art. 9, vii).

144. Again, sovereignty is involved, though no doubt less closely, when dealing with the public registers instituted and managed in order to consolidate various kinds of rights of private individuals and facilitate their exercise by providing information to third parties (civil status register, land registry, trade register, companies register...). These organisms, established in the national territory and operating in accordance with formalistic procedures, produce information which is both coded and has geographic consequences limited to the territory258. The publicity of legal situations thus forms the subject matter of public services which the State organises in the interest of private individuals, not only the holders of rights, but also the entire community. This mission of public administration of private interests cannot be subject to the control, be it merely judicial, of a foreign State without undermining the sovereignty of the Caribbean or creating risks of disruption. Thus, the model law adopts the solutions sanctioned by the Brussels I system (Art. 22, par. 1, n°3 and 4) both for public registers in general, as is acknowledged by Article 9, v), and for the registration and validity of patents and other rights subject to filing or registration, as referred to in Article 9, vi)259.

145. Though perhaps less visibly, the hand of the State nevertheless weighs on two categories of institutions able to act autonomously in civil and commercial life. These are, on the one hand, companies and entities (Art. 9, ii) and, on the other hand, trusts (Art. 9, iii). By opting for identical solutions for those two categories, the model law departs from the Brussels I system and from the LOPJ, which, by not providing any exclusive jurisdiction for trusts and even neglecting their autonomy, submit their internal disputes to the system of jurisdiction based on domicile, unless ruled out by a voluntary extension of the scope of jurisdiction. But, as observed above under Article 5, §1, c), a certain number of legal systems within the OHADAC area are familiar with that institution and intend to foster its development; therefore, it appeared opportune to provide lawsuits challenging its existence or status with appropriate rules in the matter of jurisdiction. Since, like companies or other legal persons, trusts (as opposed to natural persons) are artificial entities, their corporate reality, which allows them to manage interests to which they are independently ordained, is the product of the legal order under the aegis of which they exist; it is thus appropriate to make domicile, as defined by Article 5, §1, c), a ground of jurisdiction, since that is where that reality is manifested and the decisions concerning it will make their effect felt - an effect that can be none other than the one provided and sanctioned by the State under whose protection they are260.

146. Finally, the State in which real property is located is granted exclusive jurisdiction for lawsuits having as their principal subject matter the rights in rem relating to that property. This solution, here approached last, is the first to be sanctioned by Article 9 (i). That order reminds us that, from a historical viewpoint, it is at the origin of the Euro-Continental tradition of private international law. It has been retained and has come into general use because it remains in consonance with the contemporary representation of the State-based legal order. Rights in rem relating to immovable property are perceived as elements of the status of property which are inseparable from an essential component of the State, that is, its territory. Moreover, as a bundle of prerogatives allowing uses to be separated from the thing itself, rights in rem participate in their distribution between the members of the social body; as a basis of social exchange, they require local uniformity, so that those exercising them and those upon whom they are binding will be, as regards the same property, entitled to the same freedoms or subject to the same limitations, all strictly coordinated and adjusted together, failing which anarchy would develop. This requires the State to ensure the policing of land and to guarantee the security of transactions, which does not brook any interference on the part of foreign lawmakers. The involvement of the State is here reinforced still more by its sovereign missions consisting in the promotion or protection of an economic system and of management of the environment. The proper performance of those various tasks demands that the State on the territory of which the real property is located have a monopoly of the legal treatment of the rights relating to it; the same is not true of movable property (see below, Art. 58 et seq.). Besides, reasons less related to the public interest and applying with more or less force to the other cases referred to in Article 9 militate in favour of such exclusive jurisdiction. In the event of a dispute, the State where the property is located is the one on whose territory it may be necessary to carry out investigation measures, as well as the one whose law will normally be applicable in that matter of rights in rem; therefore, the courts that are “ready to do the job” and familiar with the rules governing the case correspond to the twofold dimension, both geographic and intellectual, of the “principle of proximity” which thus localises the lawsuit on that territory and aims at guaranteeing the sound administration of justice through correct knowledge of the facts and correct application of the law. Together with the requirement of procedural economy, which recommends that the action be initiated before the courts of the place where the prerogatives are exercised, and where, therefore, the conflict of interests arises and the decision will necessarily be materialised, that “principle” imposes a solution on the parties, regardless of their personal procedural positions (neither actor sequitur forum rei nor forum actoris). The jurisdiction thus established is so well-founded in reason that it does not, in fact, leave them any useful choice. But backed as it is both by the interest of the State and by that of private individuals, such exclusive jurisdiction might develop a vis attractiva that would risk extending its scope improperly beyond rights in rem alone.

147. That risk did not escape the authors of the model law, who, following the example of the authors of the 1968 Brussels Convention or of Article 22, 1 of the LOPJ, supplemented Article 9, i) by adding disputes concerning building leases to those relating to rights in rem in immovable property. That addition is justified inasmuch as the reasons founding exclusive jurisdiction apply just as intensely to the former as to the latter. But at the same time, since they are limited to disputes “relating to the existence or interpretation of leases or to the repair of damage caused by the tenant, to the vacation of the premises”261, that is, relating to the occupation and use of rented property, it must be admitted that they do not extend to other lawsuits between lessors and tenants in which the obligational or contractual aspect is predominant. Precisely, the extension takes place only as regards the relationship between the tenant and the thing rented. That relationship is often governed by specific legislation corresponding to public policies (economic or social); on account of that legislation's complexity and mandatory character, it is preferable to reserve its application to the courts of the countries where it is in force.

Contrary to the successive versions of the Brussels Convention and to the Brussels I Regulations, the model law has not removed holiday rentals or short-term leases from the exclusive jurisdiction provided in Article 9. As a result, the Caribbean courts will necessarily have sole jurisdiction for any disputes arising in connection with those modes of occupation and use, and will thus be able to apply to them whatever provisions their legislation considers to be mandatory.

Commentary

Article 10

Voluntary extension of the scope of jurisdiction of the Caribbean courts

1. The scope of the general jurisdiction of the Caribbean courts shall be extended when such courts, or one of them, are expressly or tacitly designated by the parties, unless the dispute concerns one of the matters referred to in Articles 8 and 12, for which no derogation by agreement is permitted.

Voluntary extension for the matters referred to in paragraphs iv), v) and vi) of Article 14 is valid if:

  1. it is based on a choice of forum agreement made after the difference arose; or if
  2. both contracting parties have their domicile in the Caribbean at the time that the agreement is made; or if
  3. the plaintiff is the consumer, employee, policyholder, insured, victim or beneficiary of the insurance policy.

2. The jurisdiction thus established extends to the matter of the validity of the choice of forum agreement, which must meet the conditions set forth in the next paragraph.

3. A choice of forum agreement is an agreement whereby the parties agree to submit to the Caribbean courts or to one of them certain or all of the differences arising or which may arise in the future in connection with a definite legal relationship, whether contractual or non-contractual in nature. Unless otherwise agreed, a choice of forum agreement establishes exclusive jurisdiction.

A choice of forum agreement shall be evidenced in writing. A written agreement is an agreement recorded in one and the same document signed by the parties, or resulting from an exchange of letters, faxes, telegrams, e-mails or any other methods of remote communication allowing the agreement to be evidenced and ensuring its storage and subsequent accessibility in electronic, optical or other mode.

An exchange of writings in claim and defence in the course of a lawsuit submitted to a Caribbean court constitutes a written agreement when the existence of the agreement is stated therein by one party and not contradicted by the other.

148. Article 6, §3 lays down the rule of the legality of choice of forum agreements within the scope of private international relationships (see above). Article 10 implements that rule of legality when the choice made by the agreement between the parties leads to an extension of the scope of exercise of Caribbean jurisdiction, through an extension of the scope of the general jurisdiction of the Caribbean courts262. Article 12 is, moreover, specifically devoted to a case which is symmetrical in appearance but structurally different. It occurs when the choice of the parties aims, in derogation of ordinary forum selection, at restricting the scope of the exercise of Caribbean jurisdiction by designating the courts of a foreign State.

Article 10 defines the specific conditions to be met for the legal referral of the case to the Caribbean court or courts forming the subject matter of the agreement, even though none of the grounds of jurisdiction set forth by the model law is verified. While a choice of forum agreement results from an exchange of consents and is, from that viewpoint, contractual in nature, it is related to procedural law on account of its subject matter, and especially to the law governing jurisdiction. That mixed nature justifies specific rules departing from the ordinary law governing legal acts. The three paragraphs of Article 10 detail those specific rules; they do not, for all that, erase the terms of formation or the effects provided in the ordinary law governing contracts, which they do not mention. Silence here means acceptance; for example, the question of the capacity (see below, Art. 23) or authority (see below, Art. 27) required in order to agree a choice of forum clause shall be subject to the usual solutions.

149. The choice of forum clause is the expression, at the level of international jurisdiction, of the autonomy of the parties. Its effect is to leave the choice of the court up to them, and - since the court refers to its own rules of private international law - the choice not only of the law applicable to the proceedings, but also of the law applicable to the substance of the dispute. Therefore, the use of choice of forum agreements should be reserved to cases in which the choice of the court of competent jurisdiction and of the governing law may be freely elected by the parties. As a result, the disputes referred to in Article 9 do not fall under the rule of legality. That article, by instituting exclusive jurisdiction for reasons of public or common interest, develops a reflex effect which goes against referral to a Caribbean court (see above under Art. 9). The proceedings under personal and family law referred to in Article 13 are also removed from the scope of the rule of legality; the traditional reason for this is that in that area the parties may not dispose freely of their interests under domestic law and that the international dimension of the disputed relationship has no impact on that consideration. Since the effect of the international dimension is usually to offer the litigants a choice between several jurisdictions, the argument is not absolutely convincing. It seems rather that the prohibition from derogating from foreign jurisdiction in favour of the Caribbean courts results from the intention of allowing each party to make use, until the actual lawsuit, of the range of courts offered by the legislations of the States in contact with which the disputed relationship is developing. The choice of the Caribbean forum would prohibit them from turning to those foreign fora. We will therefore assume that the specific character of the matter involved goes against an advance determination, via an agreement, of the court of competent jurisdiction and justifies an exception to the rule of legality.

150. The exercise of autonomy in international litigation is widely acknowledged263; the plurality of legal orders, each of which defines its offer of justice, puts the party that hastens to initiate hostilities in a position to choose its judge and thus to gain a unilateral advantage over its opponent, both at the procedural level and at the level of the applicable law, by bringing the difference before the court most convenient for it or the one whose private international law promises it the most favourable solution. Plurality is a source of insecurity and unpredictability and weakens the relationship even before a dispute sets in. It is in order to deal with that risk that the rule of legality is necessary. If the choice is made by mutual agreement before the dispute arises, the parties will know by which court and under what law it will be settled; they will thus be able to determine with some measure of security what behaviour is dictated by the development of their relationship. If exercised post litem natam, the choice of forum agreement prevents the ruinous appearance of simultaneous proceedings. However, those benefits will not be secured unless each of the parties is fully informed and aware of the consequences of the agreement. Some legislations, for fear that consent may be imprudently given, subject such an agreement to restrictive provisions. Thus, by measure of precaution, in order to guarantee respect for private autonomy and allow it to be effective, the model law institutes specific protection for freedom of consent, and out of consideration for the subject matter of the clause, which is Caribbean jurisdiction, it delimits the import of choice of forum.

151. I. - The protection of consent is ensured in two different ways; paragraph 3 of Article 10 provides general protection, applicable to all persons seeking justice and to all agreements. Its first paragraph provides special protection, which concerns choice of forum agreements entered into or to be entered into when the parties are not deemed to be on an equal footing.

152. These cases of special protection correspond to situations for which Article 14 institutes a system of unequal jurisdiction by extending the jurisdiction of the Caribbean courts in favour of one of the parties because, generally speaking, the relationship between the latter involves inequality of economic power and therefore of bargaining power. Such inequality is deemed to exist structurally between a consumer and the trader supplying him, between an employee and his employer, between a policyholder, insured, victim or beneficiary and an insurance company. It is obvious that in those cases one of the contracting parties normally has a legal, physical, commercial and financial potential allowing it to deal on promising terms, whereas the other contracting party, stated to be the weaker party, because he is constrained by need or forced to alienate his work power, or anxious in the face of an uncertain future, does not enjoy full freedom of information and judgment and thus suffers a loss of autonomy. For that reason, and also to avoid jeopardising the functions of consumption, production and foresight which condition participation in social exchange and civic life as handled by contemporary society, Article 14 offers additional grounds of jurisdiction to the weaker party and to it alone, on a compensatory basis. It is within this framework that private autonomy is exercised. It is then directed towards the protection of the weaker party and may be expressed only when the latter's full consent is recognised.

153. This functional protection limits the legality of the agreement to three possibilities. The first is that in which the choice of forum is agreed post litem natam, once the dispute has arisen; it will then be assumed that the litigious form assumed by the relationship undoes the relationship of domination between the parties and that from then on each of them has full freedom to defend its own interests. The second possibility is that in which both contracting parties have their domicile in the Caribbean at the time that they choose the Caribbean courts. In this case, on the one hand, the extension of the scope of jurisdiction answers a requirement of convenience and is based on a common intent supported, at a rational level, by a characterised objective connection, thus removing any suspicion of improper or arbitrary dealing. On the other hand, the validity of the extension neutralises any improper change of domicile on the part of the consumer. The third possibility is that of a choice of forum that benefits the weaker party only; the clause is valid inasmuch as it offers the latter the possibility of submitting its claim to a Caribbean court not designated by any Caribbean jurisdictional rule. However, it is not valid unless it allows the stronger party the same faculty. In sum, the autonomy of the parties is only permitted to come into play in the area of jurisdiction according to modalities that rule out its exercise to the detriment of the weaker party, thus aggravating the domination to which the latter is subject and which could lead it to accept the law of the strongest. But in order to ensure the validity and effectiveness of the extension of the scope of jurisdiction of the Caribbean courts, the conditions aiming at the general protection of consent to the choice of forum must be met.

154. The general protection applicable to all persons seeking justice and to all agreements designating the Caribbean courts is based on a classical legal technique, since we are dealing with formal conditions aimed at guaranteeing that the parties have made an actual commitment with full knowledge. Those conditions are not drastic; they are summed up by the requirement of a writing evidencing and formalising the agreement and ensuring its preservation with a view to its possible production in court. Such an agreement may be recorded in a specific, separate instrument, or incorporated into the contract simply as a provision. The definition of a writing matters more. Even though it seems to assign to the formal element an aim of predetermining the proof of the agreement, that definition mainly denotes the concern of admitting only those extensions of the scope of jurisdiction actually consented to by the parties. The writing is primarily intended to attest the existence of the parties' consent, whether traditionally expressed by the making of a document signed by the persons involved or through the use of the most standard or most modern means of remote communication, provided that the latter reflect an exchange allowing a common intent to be ascertained and then proven in court.

155. Next to those forms of bilateral expression of consent and equated with them, the model law admits an exchange of writings between the parties after proceedings have been initiated before a Caribbean court, from which it results that the choice of forum agreement alleged by the claimant is not disputed by the defendant. That stipulation does not set aside the definition of a writing, but rather implements it in the specific case of the tacit mode referred to in paragraph 1. Such a tacit agreement is not effective in law unless its existence is stated by the claimant in his writings as communicated to the defendant and if the latter not only does not object, but on the contrary and more positively signifies by his own writings that he relies on the jurisdiction of the Caribbean courts; this device does away with the doubt that silence pure and simple would have created as to the actual consent of the party that did not take the initiative of going before the Caribbean courts.

156. II. - This formalism is sometimes said to limit the autonomy of the parties; quite the contrary, it serves it, inasmuch as it subjects the extension of the scope of jurisdiction to an actual agreement between their free and informed wills. Moreover, the precaution is justified by the specific issue that is Caribbean jurisdiction. By extending the scope of the latter, the choice of forum agreement takes on a public-law dimension inasmuch as it proposes to compel a State judge to hear a case which, in principle, is not significantly part of the life of Caribbean society. The extension also influences the operation of a public service pertaining to the sovereignty of that State; the latter cannot unreservedly accept such an onus, thus taking the risk of weakening the credit of its courts by administering justice too accommodatingly, thus depriving its decisions of credit and effectiveness in relation to other States. It must, therefore, limit its availability to what is useful to the parties. Such a consideration has, for instance, led the Belgian lawmaker to grant a Belgian court designated by choice of forum the power of “disclaiming jurisdiction when it appears from all of the circumstances that the dispute does not have any significant connection with Belgium”264. Article 10 of the model law does not include any such provision, which brings back the exercise of jurisdiction within the limits of its function. But we must take Article 18 into account; it accepts as admissible the exception of forum non conveniens. There is nothing to indicate that such an exception could not be raised against an agreement in the cases it delimits, where the configuration of the suit would render the taking of evidence impossible or excessively difficult or expensive.

157. In the same spirit, the freedom of the parties is reined in and by that very fact protected against itself by a very relative limitation, which, by the way, agrees with a requirement of contract law according to the Romano-Germanic tradition. Indeed, under paragraph 3 of Article 10, the choice of forum must concern at the very most any present or future disputes that can be connected with “a certain legal relationship”. A specialist of contract law will recognise here the condition requiring “a certain object forming the subject matter of the commitment”265. But that condition can also be understood as corresponding to the derogatory and exceptional nature of the clause, as a functional addition to the Caribbean system of international jurisdiction, and as such subject to the general rules governing the administration of the public service of justice. Conversely, the parties, who may of course restrict the extension solely to the disputes arising from any phase of the development of a certain relationship, cannot enter into an agreement covering all of the differences liable to arise between them in connection with any present, past or future legal relationship binding them to one another; they cannot, by a private agreement, place themselves generally under Caribbean jurisdiction and force, if only as regards their mutual relations, the jurisdiction of the Caribbean judiciary without any assessment of the connections, if any, between the dispute arising from them and the life of Caribbean society. An unlimited choice of forum clause would give rise to a risk of non-proximity of the court chosen and consummate the misuse of the institution by requiring the extension of the scope of jurisdiction to effect an actual change of allegiance.

158. The special nature of the object of choice of forum would also justify its being legally separable from the clauses of any contract into which it is formally incorporated. This is provided by the second paragraph of Article 10, which states that “the jurisdiction thus established extends to the very validity of the agreement”. The issue is in fact the autonomy of the clause. That autonomy authorises the court chosen to rule on its own jurisdiction, even if the defendant objects the nullity of the agreement containing the choice of forum; the validity and nullity of the agreement are distinct from the validity and nullity of the clause, which are respectively subject to specific terms, so that the nullity of the contract does not necessarily imply the nullity of the clause266, just as the nullity of the clause does not necessarily result in the nullity of the agreement.

159. Article 10, paragraph 1 takes care to specify that a choice of forum agreement may result from a designation of the Caribbean courts or of one of them. The object always remains the extension of Caribbean jurisdiction, but that extension may be carried out according to two different modalities. The first is limited to an overall designation of the Caribbean judicial order, leaving it up to its domestic law to determine the court having specific jurisdiction to which the case shall be referred; the claimant will thus have to comply with the rules of territorial jurisdiction and of jurisdiction ratione materiae in force in the Caribbean (see below, Art. 21). The second modality consists in agreeing on the Caribbean court having specific jurisdiction; such a designation also results in the extension of the scope of Caribbean jurisdiction, since it is assumed that none of the objective grounds of jurisdiction defined by law founds the jurisdiction of a Caribbean court. Although the practice is very common and very widely admitted in private international relationships, this modality nevertheless gives rise to the risk of going against a mandatory domestic jurisdictional rule, especially one regarding jurisdiction ratione materiae that would, for instance, require a referral to the labour relations court and not to the commercial court chosen by the clause; in such a case, inasmuch as extension of the scope of jurisdiction must basically be regarded as an instrument of localisation of the suit, it will be up to Caribbean law to decide whether the flaw can or cannot be remedied, depending on the intent of the parties.

160. At the end of section 1 of paragraph 3, it is stated that “unless otherwise agreed between the parties, a choice of forum agreement establishes exclusive jurisdiction”. This provision, which is modelled on Article 23 of the Brussels I Regulation, enables the parties to render referral to a Caribbean court totally contingent, as it leaves them free to approach any foreign courts claiming jurisdiction. This faculty is related to the autonomy of the parties. It must be acknowledged, however, that in itself it does not exactly tally with the basis for the legality of the choice of forum agreement. By enriching the range of jurisdictions possible between the parties, such a faculty accentuates unpredictability and encourages forum shopping. Nevertheless, common law courts, especially those of English allegiance, readily presume that the jurisdiction of the court(s) chosen is not exclusive. We must believe that this is not solely in order to legitimate the warm welcome which they readily reserve to cases which a choice of forum clause claims to direct towards another judge. Practice, supported by the authority and wisdom of the English courts, has persuaded that the ravages of non-exclusiveness must not be exaggerated and that it is possible to a certain extent to allow the autonomy of the parties' free rein on this point. Non-exclusiveness is thus admitted, but it must be negotiated and agreed between the parties and recorded in the written form of a choice of forum agreement. Although thus tempered, the principle of the exclusiveness of the chosen jurisdiction remains; it commands the litigants to approach the Caribbean courts only and condemns any proceedings initiated and decisions secured before a foreign court in contempt of the extension of the scope of jurisdiction.

Commentary

Article 11

General jurisdiction based on the domicile of the defendant and specific jurisdiction

1. In disputes other than those referred to in Article 8 and failing voluntary extension in accordance with Article 9, the Caribbean courts have jurisdiction when the defendant is or is deemed to have his domicile in the Caribbean, without prejudice to the jurisdiction established in Articles 13 and 14.

2. In the event that there are several defendants, at least one of whom has his domicile in the Caribbean, the Caribbean courts have jurisdiction, provided that the claims are so closely connected that it is advisable to investigate and rule on them together.

161. Actor sequitur forum rei. This rule, borrowed from the Code of Justinian267, enjoins the claimant to submit the dispute to the court of the defendant. It is reiterated for the Caribbean courts by the first paragraph of Article 11 of the model law, which specifies that the forum rei is the judicial order of the territory in which the domicile of the defendant is located: when the latter has or is deemed to have his domicile in the Caribbean, the Caribbean courts have jurisdiction268. It is clear that the domicile here referred to is the one defined by Article 5 (see above).

162. This reference to domicile signs a certain inflection of the basis for the solution. In Rome, citizenship rivalled with domicile269; the latter prevailed in the Middle Ages and in pre-revolutionary France because it had replaced citizenship as a reflection of the individual's subordination to the judge. The connection was political in nature; it was a bond of allegiance to the authorities, who enjoyed the right to command and punish their subjects, no doubt for their own good and salvation. The Napoleonic Code ratified the supplanting of domicile by nationality as a political bond (see Art. 15 of the French Civil Code), exalting the latter to the point of admitting the jurisdiction of the French courts whenever the plaintiff was a French national (Art. 14 of the French Civil Code). The State, which at the time was less concerned with the individual welfare of its subjects, thus meant to subject them more tightly to itself, including judicially. Contemporary law has moved away from that perspective, without totally rejecting it; domicile, even though reduced to mere habitual residence (see above, Art. 5), retains a political significance, since it evidences the person's integration into a given social environment which is politically organised, in whose life he participates, benefiting from its public and social services and contributing to their functioning. It may then appear natural, “legitimate and necessary in a democratic society”, to acknowledge that such a person is entitled to the protection of the judiciary of the place where he lives.

163. Today, however, that consideration, from the angle of its public-law aspect thus toned down, is doubtless no longer dominant; it is overshadowed by a requirement of procedural fairness which, after competing with it for a long time, finally prevailed. The “natural judge” is no longer that of political allegiance, but the one designated by “natural law” via an essential principle of justice regarding private interests: ubi emolumentum, ibi onus270. Because he deems the state of affairs to be unsatisfactory, the claimant takes the initiative of triggering the judicial and coercive machinery of the State, while the defendant, for whom, on the contrary, the state of affairs is satisfactory, does not undertake any action aiming at modifying it. It is only fair that whoever means to profit from his move should assume the related burden. Therefore, if there is a border between the parties, it is up to the plaintiff to cross it and to submit his claims to the defendant's court. The onus of judicial internationality must be shouldered by the claimant271.

164. This predominantly private-law interpretation of the rule of forum based on domicile has allowed the recognition of other grounds of jurisdiction, whether “positive” (as opposed to the “natural judge”) or “specific” (in the words of Savigny, reproduced by the Brussels I Regulation). Indeed, while in civil and commercial matters considerations of private interest must be foremost when organising litigation and determining the court to which the case must be referred, the requirement of sound administration of justice comes into competition with actor sequitur. The purpose of that requirement is to combine a proper application of the law with a correct assessment of the facts. Now, the court of the domicile of the defendant is not always, in practice, that of the State on whose territory the facts of the case took place and are accessible, nor that whose law will determine the solution of the dispute. The sound administration of justice, which aims at optimal protection of the interests of the parties, implies a certain proximity of the judge, whether relating to the facts of the case or to the law to be applied to them. This is why Articles 13 and 14 of the model law admit the jurisdiction of the Caribbean courts in a whole series of cases in which the defendant is not domiciled in the Caribbean, but where the matter in dispute implies a certain localisation in that country of the relationship to be ruled on. Thus, an option at the level of international jurisdiction is opened up to the claimant. This is sanctioned by the last phrase of the sentence forming the first paragraph of Article 9.

165. The weight of the consideration for the interest of private individuals is felt on two other points. On the one hand, it shields all the cases for which there is a clause extending the scope of jurisdiction in favour of the Caribbean courts against any possible negative effect of forum rei: although the defendant may not be domiciled in the Caribbean, the claimant benefits from Caribbean jurisdiction because this has been validly agreed with the defendant (Art. 10). The parties are deemed to be the best qualified to appreciate their own interests. On the other hand, conversely, this weight of private interest does not suffice to draw cases which, from the Caribbean viewpoint, come within the scope of grounds of exclusive jurisdiction materialised outside the Caribbean into the scope of forum rei (Art. 9); inasmuch as such grounds of jurisdiction answer requirements of collective or public interest, they prevail over utilitas privatorum.

166. By adopting this mode of organisation of international jurisdiction, the model law follows the Romano-canonical or civil law tradition. In principle, the common law courts refer to a very different conception, traditionally territory-based, by preferring a connection via service inside the jurisdiction (i.e. the place of the delivery of the summons to the defendant) to forum rei. Although this solution has been considerably tempered, it remains the axis of the jurisdictional system of those courts. But the United Kingdom's membership in the European Union has secured it to the Continent, so that the English courts now increasingly apply the Brussels I Regulation; in so doing, they have shown themselves as well armed as the courts of the other member States when faced with the difficulties encountered in the enforcement of that instrument, which is the most modern embodiment of the Romano-canonical tradition.

167. The second paragraph of Article 11 establishes the derivative jurisdiction of the Caribbean courts when the claimant's action is directed against several joint defendants. In such a case, the requirement of procedural economy - which intends to prevent the multiplication of proceedings and an increase in costs and delays, in the interest of the parties - advocates the joinder of the claims. Although desirable, such a concentration of the litigation is admitted only conditionally: one of the defendants must be domiciled in Caribbean territory, and the claims must be so closely connected that it is advisable to investigate and rule on them together.

168. The vis attractiva giving rise to derivative jurisdiction is recognised in the only ground of jurisdiction based on domicile established in paragraph 1 of Article 11. As a result, if for instance several debtors are liable for the same debt, the fact that one of them is domiciled in the Caribbean is not enough to found the jurisdiction of the Caribbean courts. The claim must also be in fact directed against that domiciled debtor and an extension of jurisdiction based on domicile is not provided unless it has been activated by the claimant. But such forum rei jurisdiction does not have to be activated as such, in express terms, on the basis of Article 11, §1; a claim basing itself on specific jurisdiction in order to refer a case to a court which is, moreover, that of the domicile of one of the joint defendants would exercise the same force of attraction and would allow the litigation to be concentrated before that forum rei. On the contrary, if the same coincidence were to occur with an exclusive forum or an agreed forum, paragraph 1 would rule out the forum rei and therefore any jurisdiction that might have been derived from it (see above, n° 140).

169. The second condition required is that “between various claims brought by the same plaintiff against different defendants, there is a connection of such a kind that it is expedient to determine those actions together in order to avoid the risk of irreconcilable judgments resulting from separate proceedings”; this requirement, thus formulated by an order of the Court of Justice of the European Communities272, is reiterated in almost the same terms by the Brussels I Regulation. It indicates clearly that procedural economy is not so powerful an imperative as to allow the neglect of procedural fairness to the detriment of the non-domiciled joint defendants. Such a sacrifice can be contemplated only if the benefit it promises is tangible; that is why, in the law of the European Union, connexity between the claims is required and the danger entailed in disregarding it is recalled. The model law is less strict: connexity is not mentioned, and neither is the irreconcilable nature of the decisions. Those notions are difficult to define, as appears from the jurisprudence of the Court of Justice273, and the model law has deemed it more prudent to limit itself to wording which does in fact refer to the cost-benefit ratio, but refrains from prejudging the basis on which it can be established and leaves the responsibility of specifying this up to each State.

Commentary

Article 12

Derogatio fori

However, the jurisdiction of the Caribbean courts resulting from Article 11 may be excluded by a choice of forum agreement in favour of a foreign court or courts. In that case, the Caribbean courts shall stay the proceedings until the court to which the matter has been referred on the basis of choice of forum has declined jurisdiction.

170. Article 12 stresses the twofold nature - both unilateral and formally specific - of the private international law legislation that the model law will bring to each State adopting it274. When the rules of international jurisdiction have a multilateral source, or one common to several legal orders, it is by no means necessary, as between the States bound by them, to dissociate the treatment of choice of forum agreements and to devote different provisions to extension of the scope of jurisdiction and to derogation of forum. Since both national courts are subject to the same rules, the choice will be similarly valid from the viewpoint of both of them, with both a derogatory effect and an extending effect.

On the basis of the still relevant assumption that each sovereign State retains the control of its private international law, the model law separates the question of extension of the scope of jurisdiction from that of its narrowing. In order to answer the first, there is no need to concern oneself with the point of view of the foreign State from whose courts the agreement removes the dispute; it is enough to define the conditions to which the forum chosen subjects the referral. On the contrary, when the case is to be removed from the Caribbean courts, the latter must, in determining the conditions to which that removal is subject, include the viewpoint of the forum chosen in order to ensure that the latter is ready to hear the case and to dispense justice to those choosing it. The excluded Caribbean forum will not withdraw the offer of justice made by the rules of jurisdiction giving access to its courts unless the litigants' choice is accepted by the forum chosen. This can be done in an abstract fashion at the level of the terms of validity of the derogation, or concretely at the level of procedure. Article 12 has preferred the level of procedure for the consultation of the chosen forum.

171. This option does not, of course, prevent the derogatio fori from being regulated in accordance with its purpose, which is not limited to the choice of a foreign court, but aims at setting aside the jurisdiction of the domestic one. The qualification of the jurisdiction agreement as a choice of forum agreement in Article 12 makes it virtually mandatory to submit the validity of the derogation to the conditions provided in Article 10. Instituting special protection for the weaker party and general protection for all persons seeking justice is no less necessary when setting aside a court is at issue; likewise, the limitations placed on autonomy are just as well-founded here as in the case of the extension agreement.

172. We must simply note the difference limiting the derogatory effect of the autonomy of the parties to the sole Caribbean jurisdiction based on Article 11, that is, on the domicile of the defendant. From the Caribbean viewpoint, this restriction shields the autonomy of the parties from the exclusive jurisdiction provided by Article 9 and the specific jurisdiction provided by Article 13 in the matter of personal and family law, which are mandatory, but also from the specific jurisdiction in property matters provided by Article 14; it follows, for example, that contract partners having agreed a clause allowing them to approach one or several foreign courts, whereas Article 14 gives them access to Caribbean jurisdiction, retain the faculty of referring a dispute to the Caribbean courts. This lack of symmetry as compared with Article 10 is questionable, inasmuch as it enables the contract partner who is quickest to initiate proceedings to go back on his commitment; the model law no doubt considers here that it is not possible to deprive a person seeking justice of the benefits of Caribbean jurisdiction and that this must be taken into account by both parties when entering into the agreement. If that agreement is judged to be valid and effective by the forum chosen, it may be complied with by the parties, and the decision handed down by the foreign judge on that basis may even be recognised in the Caribbean inasmuch as it does not imply going against Article 74, iii. It remains, however, that the prospect of such an outcome makes up only imperfectly for the loss of usefulness of the clause, which aims at ensuring predictability and legal security.

173. The second sentence of Article 12 has chosen the procedural route in order to introduce the taking into account of the viewpoint of the forum chosen. This will occur when a case is referred to the Caribbean judge of the forum rei in disregard of the clause. In this case, the exception of lack of jurisdiction, possibly raised at the initiative of the court, must, if acknowledged to be well-founded, lead to a stay of proceedings, to their suspension. It would no doubt have been possible to be more dogmatic and to prescribe that once the validity of the clause is acknowledged the proceedings before the Caribbean court shall be discontinued. That solution would, however, have threatened the claimant and even his opponent with a jurisdictional void in the event that under the law of the forum chosen the clause should be null and void. The model law, which concretely links the derogatory effect to the extensive effect, prefers a less radical solution, which does not result in the declining of jurisdiction by the Caribbean judge unless the court to which the case is transferred proves ready to hear it. If the matter is referred simultaneously to that chosen forum, the wait will not be a long one. In the reverse case, the parties will make use of the stay of proceedings in order to secure a decision on that point. Article 12 does not, however, set any timeframe for obtaining that information; we must therefore believe that if it is late in coming this is due to the inadequate diligence of the parties and that such inadequacy allows it to be presumed that they have given up referring the matter to the court chosen. We may thus believe that when the silence as to the position of the chosen forum will have lasted for a reasonable time, the suit before the Caribbean court may be resumed at the request of either party. This judicial means of taking the viewpoint of the forum chosen into account may not be perfect, but seems more effective than an abstract rule that would first require the parties and then possibly the judge to refer to the foreign law to make sure of the validity of the agreement.

Commentary

Article 13

Personal and family law

Without prejudice to the jurisdiction established in the previous articles, the Caribbean courts have jurisdiction:

  1. in the matter of declaration of absence or death, when the person concerned has had his last habitual residence in Caribbean territory; the Caribbean courts also have jurisdiction regarding a declaration of absence or death when the latter forms the subject matter of an issue collateral to the principal issue referred to them;
  2. in the matter of incapacity and of measures for the protection of the person or property of minors and adults lacking capacity, when the minor or adult lacking capacity has his domicile or habitual residence in the Caribbean;
  3. in the matter of measures for the protection of the person or property of adults, when the adult has his domicile or habitual residence in the Caribbean;
  4. in the matter of personal and property relations between spouses, of nullity of marriage, of divorce and legal separation, when the spouses both have their habitual residence in the Caribbean at the time of filing, or when both have had their last common habitual residence in the Caribbean and when the claimant continues to reside in the Caribbean at the time of filing, likewise when both spouses are Caribbean nationals;
  5. in the matter of filiation, when the child has his habitual residence in the Caribbean at the time of filing or when the claimant is Caribbean and has resided in the Caribbean for at least six months on the date of filing;
  6. in the matter of the formation of adoption, when the adoptee has his habitual residence in the Caribbean or shares common Caribbean citizenship with the adopter;
  7. in the matter of support, when the creditor has his habitual residence in Caribbean territory and when the claim for support is joined with a status action for which the Caribbean courts have jurisdiction.

174. This article again refers to special fora ratione materiae as regards personal and family law275. The denomination “special fora” graphically and semantically reflects the latter's very nature. If the dispute does not relate to an area pertaining to exclusive jurisdiction or does not require that the suit be brought by both parties, the plaintiff is offered a twofold choice. On the one hand, a claim may be filed before the courts of the domicile of the respondent; on the other hand, the claim may be filed in accordance with the rules governing the corresponding special jurisdiction ratione materiae, thus opening up an additional possibility of bringing suit. Such fora are based on the principle of proximity and consist in designating the courts of competent jurisdiction in view of the very nature of the dispute. However, in other cases, the neutrality of the principle of proximity must yield to the protective fora, provided that there is a weaker party to the dispute, such as a consumer, an insured, a worker, etc.

When the Caribbean courts lack jurisdiction as general fora (Art. 10 and 11), or if the subject matter does not pertain to the scope of exclusive jurisdiction of the Caribbean courts (Art. 9), the latter may be granted jurisdiction ratione materiae as special fora, as provided in this article. Each forum governs a specific subject matter or a concrete legal institution or relationship within one and the same subject matter. As a result, it is impossible to leave it up to two fora to determine international jurisdiction for the same subject matter.

Due to their nature and function, special fora, whether protective or neutral, must be interpreted restrictively. They constitute an exception to the forum of the domicile of the defendant, and as such they must be interpreted restrictively in order to guarantee a high level of predictability of the rules governing international jurisdiction. However, there are no grounds for restrictive interpretations that consist in confusing a special forum with the general jurisdiction based on the domicile of the defendant. A special forum offers, precisely, an alternate forum to the forum of the domicile of the defendant. That is precisely why, in a majority of cases, a special forum may coincide with the forum of the domicile of the defendant without for all that becoming an exorbitant forum276. Indeed, in that case it is based on reasonable and specific evidence of proximity, such as the place of performance of the obligation, the place where the damage occurred, the place of the secondary establishment or of the branch, etc.

175. The same is true of Art. 14 (see below) of the model law, whose literal tenor might lead one to believe that there is a hierarchical system of fora. Thus, exclusive fora would have priority, provided that there is a sufficient connection allowing jurisdiction to be assigned to our courts. Failing that, the matter would be left to the general fora, and if the latter were to prove inoperative and only then, the Caribbean courts of competent jurisdiction would have to be designated on the basis of the special fora ratione materiae “without prejudice to the jurisdiction established in the previous articles”. Such a hierarchically based explanation of the structure of the model law is not, however, very fortunate, and many arguments may challenge it. In the first place, resorting to a method based on hierarchy is inappropriate and contrary to the very nature of the rules governing jurisdiction. Such a method works perfectly for the applicable rules of law, and more specifically for the rules governing conflicts of laws, where it is possible and often useful to articulate hierarchical links on the basis of a rational criterion or of a substantive point of view. This method functions, for the conflict of laws rule is as concrete as the determination of the applicable law and varies depending on whether one is dealing with the first, second, third or fourth point of connection according to the order of priority established. Likewise, the method founded on the hierarchical relationship functions in international treaties or for the uniform rules binding several States, as may be the case for the Brussels I Regulation, since the various fora which they provide are integrated as a jurisdictional norm of a bilateral or unilateral type. However, the method based on the hierarchical relation lacks logic as far as domestic jurisdictional rules in private international law are concerned. Indeed, the latter are unilateral by their very nature, and the result of any forum of jurisdiction pursuant to Articles 9 and following of this model law is always the same: to assign jurisdiction to the Caribbean courts.

The general jurisdictional rules determine the Caribbean courts without any reference to the subject matter concerned. We are dealing here with the two fora provided in Articles 10 and 11. The rest are special fora which are set forth from the viewpoint of the subject matter with which they deal (Art. 13 and 14). However, all the special fora ratione materiae do not have the same characteristics. In fact, there are two kinds of special fora, i.e. exclusive and competing ones. The first are set forth in Article 9. The others are scattered throughout Articles 13 and 14. The difference between the two concerns the fact that the former imply the exclusive jurisdiction of the Caribbean courts, which radically prevents the recognition of a foreign judgment handed down under such circumstances. The latter, even though they assign jurisdiction to the Caribbean courts, are termed competing, because they do not rule out the possibility of recognising a judgment handed down by a foreign court having stated that it has jurisdiction in view of those same criteria, or on the basis of other criteria deemed to be reasonable. It must, however, be stressed that among the competing fora, some, for concrete reasons of ratione materiae, are liable to be termed “protective fora” (support or filiation) and very distinctly reflect the need to protect the weaker party to the relationship involved.

176. Declaration of absence and declaration of death constitute acts of voluntary jurisdiction which are intimately interrelated and which have to do especially with legal personality, with the protection of the assets of the person declared to be absent or deceased and with the interests of third parties. We are dealing with institutions that are very heterogeneous in comparative law, so that some legal orders only are acquainted with declarations of absence or death, while the others mingle those two concepts, which in all cases leads to a great diversity of procedure, content or effects.

Paragraph i) of this article provides that the Caribbean courts have jurisdiction in the matter of declaration of absence or death, provided that the dead or missing person had his last domicile in Caribbean territory. This forum is justified by the close connection implied by domicile, from the viewpoint of both the person and his assets. It thus guarantees the bond of proximity, as well as the effectiveness of the decision and of the protective measures adopted. It is also appropriate from the procedural point of view, since it allows a special connection to be made in view of the circumstances of the disappearance; therefore, such a connection is not warranted if the person vanishes, with certainty, in another country. The rule of jurisdiction has been criticised on account of its restrictive nature; preference has been given to the forum of the habitual residence, which in itself is broader, or even, in some cases, to the forum of nationality. But especially, this injures the interests of third parties (family members, heirs apparent...) who are also concerned by substantive law, and this may lead to actual situations of denials of justice. In particular, the possibility of justifying the jurisdiction of the Caribbean courts as the forum of necessity in many cases of negative conflicts of jurisdiction must not be ruled out, especially when the State in which the absent person had his last domicile opts for the forum of that person's nationality277.

The possibility of adopting interim protective measures such as those provided in the legislation of the forum in view of the principle of defence of the assets of the dead or missing person opens up the avenues of international jurisdiction referred to in Art. 16 of the model law, provided that those assets are located in the Caribbean and that those measures are to be carried out in that country.

177. Legal age does not imply legal capacity in the event that an illness or psychic deficiency should occur, thus justifying a declaration of incapacity. In the case of persons who are of age, a declaration of incapacity is a prior and mandatory condition for the adoption of most protective measures. The case is different when dealing with minor children. The measures for the protection of minors referred to in paragraph ii) of this article apply due to the very fact of being under age, without it being necessary to demonstrate incapacity. Of course, it is also possible to decide to place minors suffering from a cause of incapacity under preventive protection, since the incapacity is liable to persist once the minor has come of age. This, moreover, does not prevent other measures from being set up additionally for the specific protection of a minor lacking capacity. In the case of the adults lacking capacity referred to in paragraph iii), the declaration of incapacity is a prior stage which is mandatory for the adoption of protective measures such as guardianship or certain types of curatorship.

Incapacity is a prior condition for setting up protective measures for a person lacking capacity, independently of the fact that both may be pronounced concomitantly within the framework of the same legal proceedings. It is understood that if the declaration of incapacity is handed down by a foreign judgment, it will be liable to produce its effects in the Caribbean through recognition of the judgment or exequatur. Pursuant to this article, the Caribbean judicial organs have jurisdiction provided that the person presumed to lack capacity has his habitual residence in the Caribbean. This is an obviously reasonable criterion, for if the person resides in Caribbean territory on a stable basis, it is quite naturally up to the Caribbean courts and more specifically to the Caribbean judges to appreciate the causes and origins of the lack of capacity. However, in order to allow the adoption of protective or provisional measures, and particularly for purposes of commitment to a specialised institution, it suffices that the person concerned be in the Caribbean, even if he does not have his residence there, or that his assets be located in the Caribbean. The urgency of such measures largely justifies those two criteria.

While a declaration of incapacity is a prior condition for the adoption of permanent protective measures for an adult lacking capacity, it remains, nevertheless, that this does not apply to provisional or emergency measures liable to be adopted. Usually specific protective measures, such as commitment, may be adopted in the course of the same proceedings, or measures such as placement under guardianship or curatorship may be adopted immediately after the declaration of incapacity.

In certain cases, such as curatorship on grounds of extravagant expenditure, the adoption of protective measures does not require a prior declaration of incapacity, since curatorship is aimed rather at persons having a higher level of discernment. Consequently, the model law has quite appropriately adopted identical fora of competent jurisdiction in the matters of incapacity and provisional measures regarding persons and their assets, by assigning jurisdiction to the Caribbean courts when the person lacking capacity resides habitually in the Caribbean.

The model law provides that general jurisdiction is based on habitual residence, while properly taking into account the best interests of the minor and the principle of proximity as criteria determining its rules of international jurisdiction. The concept of “habitual residence” says clearly that mere physical presence does not suffice to consider that the minor is a habitual resident; this will have to be determined in each specific case. For that purpose, several factors will have to be combined in order to conclude whether the physical presence is simply temporary or occasional or whether, on the contrary, it reflects the minor's integration into a social and family environment. Consequently, the following must be taken into account: the duration, regularity, conditions and reasons for the stay on the territory of the member State and of the family's travel to that State, the nationality of the minor, the place and conditions of his school attendance, his linguistic knowledge, the family and social relations entertained by the child in that State, the acquisition or rental of housing by the parents, or even their application for social housing. On the contrary, the fact that the minor child leads a wandering life in a State for a short period of time may constitute a contrary criterion. If it proves impossible to determine whether a minor has his habitual residence in a member State, his sole presence in the territory of a State may trigger the assignment of the forum of necessity provided in Article 15 of the model law.

178. Paragraph iv) establishes a preferential system which determines the international jurisdiction of the Caribbean courts for the settlement of disputes concerning persons and property in marital relationships and in the matter of divorce. Three fora of alternate jurisdiction are instituted. First of all, the Caribbean courts may have jurisdiction if both spouses have their habitual residence in the Caribbean at the time that they file their claim. If they do not have common habitual residence at the time of the filing of the claim, the Caribbean courts shall be considered to have jurisdiction if both spouses have had their last common habitual residence in the Caribbean and if the defendant continues to reside there at the time of the filing of the claim. Finally, the Caribbean courts shall be considered to have jurisdiction if both spouses are Caribbean nationals.

The international jurisdictional rules in question, particularly those relating to separation and divorce proceedings, pose the problem of their area of application. More specifically, the point consists in knowing the scope of this ancillary jurisdiction applied to matters which are usually settled in proceedings of this kind, i.e. child custody, support, filiation.

This possibility will be analysed for each area concerned. In all cases, the Caribbean courts will make use of their rules of international jurisdiction in order to revise the measures adopted in separation or divorce proceedings abroad. In such cases, it is appropriate to turn towards “automatic” or “probationary” recognition of a judgment handed down abroad in marriage proceedings, without requesting its exequatur as a prior condition. Moreover, the impact of interim protective measures in this type of proceedings requires that the terms of Art. 16 of the model law, that assign jurisdiction to the Caribbean courts, be recalled.

179. Failing an international agreement, the international jurisdiction of the Caribbean courts in the matter of filiation and paternal filiation shall be determined in accordance with paragraph v), subject to the provisions mentioned as regards the protection of minors. This article provides two special fora in the matter of filiation. First, when the child has his habitual residence in the Caribbean at the time of the filing of the claim, and secondly, when the plaintiff is Caribbean and has resided habitually in the Caribbean for at least six months prior to the filing of the claim. In all cases, the special forum corresponds to the general fora that acknowledge the jurisdiction of the Caribbean courts when the domicile of the defendant is in the Caribbean, or when the parties expressly or tacitly leave the decision up to the Caribbean courts.

Likewise, paragraph vi) refers to two fora on a subsidiary basis in the matter of adoption proceedings: the Caribbean courts will have jurisdiction if the person adopting resides habitually in the Caribbean or if the person adopting and the person adopted are both Caribbean nationals.

180. Finally, paragraph vii) concerns support. The question of the autonomy of the support obligation was the initial problem to be solved in an international context. In the case of support between parents, including spouses living together or separated de facto, who are liable to make up an autonomous category, support obligations may derive and be directly connected to specific legal institutions subject to their own set of legal rules, such as extra-contractual liability, the nullity of marriage, separation, divorce, guardianship, contract, legacy, etc. In such cases, the basic principle is founded on the application of the rules of private international law for the institutions forming the subject matter of the dispute relating to support. For that reason, the fora and conflict rules relating to contracts, extra-contractual liability, successions, etc., shall appropriately be applied.

The determination of the international jurisdiction of the Caribbean courts in the matter of support is mitigated, as we have just seen, by the nature of the support owed. The diversity of the reasons liable to justify claiming a support obligation before the courts opens the way to the application of the rules of international jurisdiction specific to certain areas (contract, extra-contractual liability, successions...). Therefore, the criteria of international jurisdiction that come into play for claims based on support allowances, and more specifically those between parents or spouses, must be determined. To that effect, the model law provides two fora on a subsidiary basis. First, when the creditor has his habitual residence in Caribbean territory, and second, when the claim for support is part of proceedings relating to civil status for which the Caribbean courts have jurisdiction.

Commentary

Article 14

Property law

1. Without prejudice to the jurisdiction established in the previous articles, the Caribbean courts have jurisdiction in the following matters:

  1. contractual obligations arising or to be performed in the Caribbean;
  2. non-contractual obligations, when the damaging fact has occurred or could occur in Caribbean territory or when the author of the damage and the victim both have their residence in the Caribbean; the Caribbean courts having jurisdiction in criminal matters also have jurisdiction to rule on the civil liability for the damage resulting from the offence;
  3. disputes relating to the operation of a branch, agency or business establishment when located in Caribbean territory;
  4. contracts entered into by consumers when the consumer has his domicile in the Caribbean while the other party operates in the Caribbean or, by any means, directs the business activities within the framework of which the contract was made towards the Caribbean. In all other cases, the rule set out in paragraph i) above applies to the consumer contract;
  5. insurance, when the insured, the policyholder, the injured party or the beneficiary of the insurance have their domicile in the Caribbean; the insurer may also be summoned before the Caribbean courts if the damage is suffered in Caribbean territory and if dealing with civil liability insurance or insurance relating to real estate, or, in the case of civil liability insurance, if the Caribbean courts have jurisdiction for the action initiated by the injured party against the insured pursuant to paragraph 2 of this article;
  6. actions relating to movable property, when the latter is located in Caribbean territory at the time of the claim;
  7. successions, when the deceased had his last domicile in the Caribbean or owned real estate in the Caribbean.

2. In the matter of employment contracts, employers may be sued before the Caribbean courts if the work is habitually performed in the Caribbean; or, if the work is not habitually performed in one and the same country, when the establishment having hired the worker is located in the Caribbean.

181. The concise list of the special fora ratione materiae in property matters contained in this article evidences continuity with that included in Art. 13 in matters not relating to property rights. Thus, and subject to the jurisdiction of the Caribbean courts for the adoption of interim protective measures or of guarantees relating to persons or property located in Caribbean territory and which must be performed in the Caribbean (Art. 16), Art. 14 reduces the scope of the international jurisdiction of the Caribbean courts278. The scope of the special fora justifies the internal structure of the international jurisdiction of this model law by clearly drawing its inspiration from the principle of reasonable proximity. These fora reveal an appropriate, acceptable and justified jurisdiction of the Caribbean courts. Such jurisdiction may be modulated in a few fora only, in the case of protective fora requiring a specific response which may sometimes be very restrictive.

182. Paragraph i) relating to contractual obligations provides two special fora for the benefit of the Caribbean courts in the matter of contractual obligations: the forum executionis and the forum celebrationis. On account of its unilateral character, the model law opts for an extensive interpretation of the fora in paragraph i). As a result, it avoids situations of deprivation of the rights of the defence or of non liquet, which are hardly compatible with the principle of effective judicial protection. For that reason, contracts made between absent parties must be taken into consideration, not only when the offer took place in the Caribbean, but also when one of the essential elements of the formation of the contract (acceptance included) took place in Caribbean territory. First of all, the paragraph in question refers to the place where the undertaking is to be performed, that is, the Caribbean. Apparently, the interpretation of this criterion could be similar to that of the forum provided in Art. 5.1 of the Brussels I Regulation279, since it refers to the undertaking forming the subject matter of the claim. However, that meaning cannot tone down the interpretation of a domestic norm, the more so if the addition of the forum of the place where the contract was made marks a notable difference as to the criterion. Secondly, although literally speaking the article refers to the Caribbean as being the place of performance of the undertaking forming the subject matter of the claim, a broader interpretation could go so far as to admit a claim relating to an obligation of payment, provided that the Caribbean is the place of performance of the obligation arising from the contract.

183. Next to the solutions provided by international treaties, paragraph ii) refers to two special fora which are alternatives to the general fora provided in Articles 10 and 11. The first is the forum delicti commissi, which has not yet raised any problems of interpretation in the Caribbean judicial organisms. The second is the common habitual residence in the Caribbean of the author of the damage and of the victim, which tends to be absorbed by the forum of the domicile of the defendant. These fora apply, generally speaking, to all cases of extra-contractual civil liability relating both to traffic accidents and to direct consequences in the event of environmental damage. In the vast majority of cases, extra-contractual civil liability does not present any problems as regards the determination of the place where the fact giving rise to the damage occurred or could occur. Consequently, even when the extra-contractual international relationship is characterised by elements of the illicit fact potentially located in other States, the determination of the place of the fact giving rise to the damage is usually a verifiable and demonstrable reality. Indeed, we are dealing with a factual element which can be spotted, and which almost immediately indicates the place where the interests, assets and persons concerned are located. From that point of view, the identification of the court having international civil jurisdiction should not raise any problems. However, there are cases where the place of the damage is located in several spots, that is, there is a special dissociation in more than one State between the place where the fact generating the damage occurred and the place where the consequences of that fact make themselves felt280. One and the same damage-generating fact may produce several damaging facts in different States, where the consequences occurred, and as a result jurisdiction belongs not only to the court of the place where the damaging fact occurred, but also to that of the place where it “could occur”. This removes doubts as regards the application of this article in the case of preventive actions aiming at the adoption of measures of protection, cessation or mitigation, in order to avoid or reduce any potential damage.

A specific forum in the matter of civil liability for damage resulting from a criminal offence is added. It is provided that the Caribbean courts shall also be competent when such facts in criminal matters pertain to their jurisdiction.

184. Next to the forum with exclusive jurisdiction in the matter of incorporation, validity, nullity or winding-up of a company whose registered office is located in Caribbean territory, as well as in accordance with any agreements and decisions of its managing organs which might call into question its existence erga omnes and its rules of operation (provided in Art. 9), it is also customary to establish the jurisdiction of the court of the domicile of the defendant on the basis of the general jurisdiction defined in Art. 10. It is understood that the determination of the company's registered office is confronted with the difficulties posed by the various models existing in private international company law.

Since a company may be sued in the place where its registered office is located, that domicile can in turn be considered to be at the place of its registered office as determined by the Articles of Association, or at the place where its central administration is located, or again at the place where it has its main establishment. However, companies, in addition to the country where they were incorporated, can establish themselves in several countries via branches. In such cases, however, a company having branches in countries where neither its registered office as determined by the Articles, nor its central administration, nor even its main establishment are located may not be sued on the basis of the general jurisdiction founded on the domicile of the defendant before the court of the location of its branches. This solution proves inappropriate, for whoever enters into an agreement with a company must logically be able to file suit before the court of the forum of the making of that agreement, that is, the place where the branch is located. Such a situation has been provided for by establishing a special forum for agreements entered into by companies through their branches. As a result, companies having their registered office as determined by the Articles, their central administration or their main establishment in one State may be sued in another State of the Caribbean if they have a branch, agency or any other place of business relating to their activities in that State. As a result, the claimant is granted an “attack forum” offering him the choice of filing his claim against the company either in the territory of the State where its main office is located or in the place where the branch with which he contracted is located. Paragraph iii) of this article provides that the Caribbean courts shall have jurisdiction for disputes relating to the operation of a branch, agency or place of business, provided that the latter are located in their territory. This paragraph draws much of its inspiration from the provisions of the Brussels I Regulation on that point.

185. Paragraph iv) contains special fora also inspired by the regulations of the 1968 Brussels Convention and of the present Brussels I Regulation281. The jurisdiction of the Caribbean courts is established provided that the consumer has his domicile in the Caribbean in the matter of contracts for credit sales of movable property or of loans intended to finance such transactions. However, the jurisdiction of the Caribbean courts is also provided for other consumer contracts relating to movable property and services, provided that the agreement entered into was preceded by a personal offer or by advertisement in the Caribbean, or that the consumer did what was required for the making of the contract in Caribbean territory. The concurrence between special jurisdiction and the general jurisdiction expressly provided in Art. 10 proves very questionable. If one considers that this article establishes a series of protective fora, which in a majority of cases draw their inspiration from constitutional provisions, its unlimited application as an autonomous principle would void the intended protection of all content. It must therefore be understood that special jurisdiction enters into competition only with the general jurisdiction based on the domicile of the defendant, except in the case of choice of forum agreements, inasmuch as it exists for the sole benefit of the consumer.

186. Insurance contracts, with their multiple variants, are among the main concerns of contract law. This is due to the complexity of the institution as regards both life insurance and other forms of insurance. The international jurisdiction in the matter of insurance contained in paragraph v), like that provided for contracts entered into by consumers or for employment contracts, is based on the protection of the weaker party by offering jurisdictional rules more favourable to the defence of their interests than those included in paragraph ii). In such cases, the autonomy enjoyed by the parties to the contract when it comes to designating the court of competent jurisdiction proves limited, without prejudice to the criteria of exclusive jurisdiction laid down in Art. 9. The paragraph forming the subject matter of this commentary draws its inspiration from the provisions of Section 3, Chapter II of the Brussels I Regulation.

The protection is expressed by the fact that, while the insurer can only sue the insured, the policyholder or the beneficiary on the basis of the domicile of the defendant, the insured can, on the contrary, sue the insurer before the courts of the latter's domicile, as being the domicile either of the defendant (Art. 11) or of the claimant. Consequently, this article opens up several possible fora for the benefit of the insured, the policyholder or the beneficiary when acting against the insurer. Such fora may also be used by the injured party acting directly against the insurer, but only in case such an action is possible282.

187. Paragraph vi), for its part, does in fact refer to special jurisdiction by assigning actions relating to movable property to the Caribbean courts, provided that such property is located in the territory of the Caribbean at the time of the filing of the claim. Such jurisdiction is very advisable, since the domicile of the defendant does not necessarily coincide with the location of the movable property. This special jurisdiction contributes a very useful supplementary “attack forum” inasmuch as, on the one hand, it reflects a reasonable proximity between the dispute and the forum rei sitae and as especially, on the other hand, it proves particularly effective in economic terms. It should, moreover, be pointed out that the exercise of rights in rem in respect of movable property is far from rare; actions for recovery of property based on ownership, third-party claims to protection or separation of property interests, or proceedings to determine paramount title, are very frequent in international trade where property interests are used as security for goods.

188. The jurisdiction provided in paragraph vii) is all the more important because it is not established by any treaty-based norm. Next to the general jurisdictions based on the domicile of the defendant and on their application, whether express or tacit (Art. 10 and 11), two kinds of special jurisdiction are added here, both of which essentially reflect the same idea (the forum patrimonii): the last domicile of the deceased in Caribbean territory, or the existence of real assets in the Caribbean. The last domicile of the deceased in the Caribbean is a reasonable ground of jurisdiction, inasmuch as it designates, on the basis of a presumption, the place where the debtor's estate is located, as well as a place having a certain importance and concerning last wills and testaments. This jurisdiction fosters the proper progress of the proceedings, the securing of evidence, the performance of the decision and provisional measures, as well as the administration of the net estate. As for the jurisdiction relating to real assets in the Caribbean, the attractive force of real property does not appear to be reasonably justified.

189. Paragraph 2 draws its inspiration from the Brussels I Regulation, which governs the provisions relating to jurisdiction in the matter of employment contracts. Those autonomous provisions, in the line of consumer contracts, would correspond more to the special nature of those contracts and to a structure already present in the Rome Convention dated 19 June 1980 on the law applicable to contractual obligations. The fora of international jurisdiction contained in this article are relatively more generous. Indeed, in addition to the fact that the work is performed in the Caribbean, or that the domicile of the defendant is located in that country - in the broad sense, in the case of the employer -, the article accepts other criteria: employers may be sued before the Caribbean courts if the work is habitually performed in the Caribbean, but also when the work is not performed in one and the same country, provided that the establishment having hired the worker is located in the Caribbean.

Commentary

Article 15

Forum of necessity

1. The Caribbean courts also have jurisdiction when it is established that the case has a connection with the Caribbean that is such that it can be usefully dealt with there and

  1. that proceedings abroad are impossible in law or in fact, or
  2. that the decision resulting from proceedings conducted abroad would not be able to be recognised in the Caribbean.

2. When the claimant is domiciled in the Caribbean or is a Caribbean national, the useful connection condition is satisfied.

190. In delimiting the scope of Caribbean jurisdiction, Article 6 of the model law sanctions the principle of universal jurisdiction in relation to persons (see above, Art. 6. 1 and comm. §2). The following provisions organise the exercise of that universal jurisdiction by setting the competences of the Caribbean courts, with the effect of excluding an immense share of international litigation in civil and commercial matters and submitting only cases having a significant connection with the Caribbean to them.

191. Such self-limitation is as reasonable as it is legitimate. As in all modern democratic States, the public service of justice is instituted by the members of the social body in exchange for the reciprocal relinquishment of the free exercise of private justice, so that differences will be settled by an impartial third party according to a set procedure and in accordance with predetermined substantive rules. That pact is agreed between and for those subscribing to it with a view to establishing and maintaining order and civil peace; it binds only those taking part in the life of the community whose harmony it strives to ensure, so that the public justice owed by the State in the Caribbean can be claimed first and foremost by those who contribute to the animation of that society. The rules of international jurisdiction then trace the borders of that social life, inside which the litigious private interest relationships which the local courts are called upon to pacify must be located. Thus, any private interests not within the scope of that society's life remain outside the jurisdiction of its courts. Such a conception cannot, however, be absolute. The insertion of private interests into the social life of the forum is often relative and the rules governing jurisdiction set the level of intensity to be attained by that insertion in order to justify access to the courts. But since each State unilaterally determines that level, it may happen that due to such lack of coordination some interests that are too moderately engaged in Caribbean social exchange will be unable to find a judge there, whereas no court is open to them elsewhere. It is in this specific case that the assertion of the principle of universal jurisdiction stands out particularly. That assertion proceeds from the idea which is part of the compendium of human rights according to which, by his very nature, an individual is entitled to effective judicial protection of his interests. The model law has chosen to adhere to it283.

192. As a result of that adhesion, jurisdictionally orphan disputes will nevertheless be accepted by the Caribbean courts, provided that the effective judicial protection thus promised can actually be materialised within the Caribbean legal order. This is expressed first of all by paragraph 1 of Article 15, when it requires, on the one hand, a connection such that the difference can be usefully dealt with by the Caribbean court, that is, form the subject matter of a decision whose effects (possibly including enforcement) may make themselves felt within the life of the local society and, on the other hand, that that connection be proven in each specific case to the satisfaction of the court. The exceptional extension of Caribbean jurisdiction requires an estimation in concreto of its advisability.

However, this deliberately casuistic and therefore restrictive orientation is tempered by Article 15 §2, which, on the basis of the Caribbean nationality or of the Caribbean domicile of the claimant, presumes that the dispute is sufficiently a part of the Caribbean legal order to be entrusted to its judges, failing foreign jurisdiction. Based as it is on domicile, the forum actoris is no more than an abstract recognition of the relationship between the conflict of interests to be resolved and the Caribbean legal order. While it institutes a privilege, the latter is acceptable provided that it is granted solely under the cover of the law to effective judicial protection, whose exercise is not, failing available courts abroad, necessarily detrimental to the defendant. As for the criterion of nationality, its revival is no doubt not fully compatible with Article 6 inasmuch as it reintroduces the opposition between citizens and foreigners as regards jurisdiction; but is it legitimate to remove from the notion of nationality the dimension of belonging to the population forming the State which it normally associates with the dimension of allegiance to the constituent authorities of the State? The model law suggests a negative answer. It will be up to each State adopting the model law to nuance or even reject this solution.

193. The exceptional extension of Caribbean jurisdiction also requires an assessment of its necessity. Paragraph 1 measures this necessity by referring to two hypotheses. The first stresses the nature of the forum necessitatis, which is as helpful as it is subsidiary. It assumes that it is impossible for the parties to initiate and conduct proceedings before foreign courts. It is specified that such impossibility can arise both from legal obstacles and from factual obstacles. First, legal obstacles, outlining the figure of the negative conflict of jurisdiction: like the Caribbean, the foreign States in contact with which the disputed relationship is developing keep the doors of their courts shut pursuant to their jurisdictional rules. If such an impasse can be proven, a difference that can be usefully dealt with by the Caribbean courts will be. Next, factual obstacles, when it would be unreasonable to subject the parties to the risk of excessively dangerous circumstances which might be involved in going before a foreign court (state of belligerence, civil war, discrimination, excessive cost of the suit); a doctrine based on the right to a fair trial proposes to enrich the notion of factual obstacle by incorporating into it a value judgment as to the quality of the judicial work habitually produced by the foreign court284. Enriched or not, both legal and factual obstacles will have to be proven by the claimant.

194. The second reference is to the case in which it is established that the judgment handed down abroad would be denied recognition in the Caribbean. Proof of the refusal of recognition is obviously brought when the Caribbean court has rejected a principal or incidental claim aiming at the recognition of the international legality of the foreign decision; in such a case, the matter may be re-judged in the Caribbean, but only, although this is not specified by Article 15, if it is verified that no other foreign court is available. The proof of the refusal is more delicate when it is alleged because its prospect dissuades the claimant from going before a foreign judge. The characteristics determining the international legality of the foreign decision from the viewpoint of Caribbean law are quite hypothetical and have not yet materialised, and it is to be feared that a purely conjectural illegality would have to suffice. In fact, however, certain elements, such as the foreign court's indirect lack of jurisdiction, are accessible before the hypothetical suit is brought. They may lend themselves to proof, thus founding a prognosis of non-recognisability. That is no doubt why this hypothesis is referred to in Article 15, since otherwise it merely proposes a specific application of the solution emerging from the first one, which is generic in nature.

Commentary

Article 16

Provisional and conservatory measures

The Caribbean courts also have jurisdiction for the purpose of ordering provisional or conservatory measures when the latter

  1. concern persons or property located in Caribbean territory and must be enforced there, or
  2. are requested in connection with a difference pertaining to their jurisdiction.

195. It is appropriate to establish a specific jurisdictional rule for provisional and conservatory measures, thanks to which the judicial authorities secure the situation of the parties in order to prevent any manoeuvres aiming at altering the configuration of the case or disturbing its investigation and jeopardising the actual enforcement of the decision ruling on the merits of the case. In principle, such measures pertain to the court to which the substance of the case has been referred, which has pre-eminent jurisdiction in their regard. However, it may happen that proceedings before that court have not yet been initiated, or that in practice the latter is not in the best position to order such measures, when, for instance, they concern persons or assets that are beyond its reach. Such circumstances must not, however, deprive the litigants of their right to effective judicial protection, which includes the right to temporary judicial protection safeguarding their respective rights until the outcome of the conflict of interests between them. The cooperation of the judicial authorities that are able to act must then be secured, and the referral to them of the matter must be authorised. Article 16 meets this requirement by defining the jurisdiction of the Caribbean courts285. This provision very classically associates jurisdiction in provisional matters with jurisdiction in principal matters, so that the measures may always be taken by the Caribbean judge to whom the case was referred on the basis of one of the grounds of jurisdiction provided in Part II, Chapter II of the model law. But concurrently with that authorisation, Article 16 confers another one on the Caribbean court when it turns out to be the useful court because the persons or assets on which the measure must be enforced are located within its jurisdiction, that is, in the territory of the Caribbean.

196. Provided that in principle the power to judge - both on the merits and on a provisional basis - is exercised according to the rules of the State conferring it, the measures that may be obtained from the Caribbean courts are those organised by the private judicial law of the Caribbean. But although their tenor is identical, they will not all have the same bearing. Indeed, the effectiveness of those that are requested from the useful court because they are to be enforced on persons or assets located in Caribbean territory will, depending on the basis of the ancillary jurisdiction under which they are ordered, be limited to that territory. On the contrary, those decided by the Caribbean court ruling on the merits may, just like the substantive decision which it is authorised to hand down, be recognised and, if called for, enforced outside the territory.

Commentary

Article 17

Lack of jurisdiction of the Caribbean courts

1. The Caribbean courts do not have jurisdiction for cases not allotted to them by the provisions of this law, nor by those of the international Treaties and agreements to which the Caribbean is party.

2. When the defendant appears, the exception of lack of jurisdiction must be raised prior to any defence on the merits under pain of inadmissibility.

3. When the defendant does not appear, the Caribbean courts shall disclaim jurisdiction of their own motion.

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.

197. Recalling a principle, even if not mandatory, rarely does any harm, and when announcing modes of application liable to temper the syllogisms whose major it may be, such a recall may even usefully affirm it. That is no doubt why the first paragraph of Article 18 does not hesitate to state that the Caribbean courts lack jurisdiction for matters not allotted to them by legal or treaty-based rules286. A logical mind would unreservedly accept such a proposition and would conclude that the said Caribbean courts shall refrain from hearing cases not within the scope of any of the provisions governing their international jurisdiction. A legal mind will not despise such an inference, but will be inclined to amend it by taking into account the practical steps involved.

198. The first hypothesis contemplated relativises the principle set forth. It concerns the defendant who appears before the court to develop his defences on the merits without having first protested against the lack of international jurisdiction. This is a transposition of the rule, rather widespread in comparative private judicial law, which expresses a concern for procedural economy by attempting to prevent, in the event that jurisdiction is doubtful or questionable, a discussion on the merits from beginning immediately and being pursued too far before it is found to be illegitimate and thus vain. The exception of lack of jurisdiction must therefore be raised in limine litis, “simultaneously with other procedural exceptions and prior to any defence on the merits or objection to admissibility”, according to the terms of Article 74 of the French code of civil procedure. The solution may be analysed as a legal extension of the scope of jurisdiction resulting from inadmissibility based on the lateness of the exception of lack of jurisdiction and aimed at sparing the energies of the members of the court. But it may also be analysed as a tacit voluntary extension, since by presenting his arguments on the merits the defendant accepts the debate to which he is invited by the claimant. The latter interpretation requires that the solution be restricted to lawsuits whose subject matter allows voluntary extension, that is, those relating to interests which the parties may freely dispose of287 (see above, Art. 10 and comm. §2); however, it hardly appears compatible with the last paragraph of Article 10 §3, which states that the choice of forum agreement meets the condition of written form when it is recorded in an exchange of writings in claim and defence during the proceedings which reveals that one of the parties alleges the existence of an agreement which the other party does not dispute, but on the contrary performs. This rule implements a restrictive conception of the notion of tacit agreement, whose useful effect would be completely ruined if an extension based on the mere silence of the parties appearing were to be admitted. This observation does not allow us to conclude that the condition relating to the time at which the exception of lack of jurisdiction must be raised is valid in all matters, including interests of which the litigants may not freely dispose; that would imply that the exception always remains at the discretion of the defendant. The observation simply shows that the model law says nothing about the substantive scope of this condition, which is mandatory when the defendant appears.

199. On the contrary, when the defendant does not appear, paragraph 3 of article 18 grants the court to which the matter has been unduly referred the power of declining jurisdiction of its own motion. This power is indispensible for the performance of the duty of doing so, but nothing in this provision indicates that the court has such a duty, or that it does not. The court is simply enabled to find that it lacks jurisdiction, either because a special provision of Caribbean law outside the model law requires it to do so or because it is left free to appreciate the advisability of relinquishing jurisdiction. Both the system set up by Brussels I Regulation (Art. 26) and that of the Ley de Enjuiciamiento Civil explicitly favour the exercise as a matter of course of the protection of a defendant who does not appear although duly summoned.

200. The last paragraph of Article 17 is in agreement with the position of the Brussels I Regulation as concerns the referral to a Caribbean court of a suit whose subject matter pertains to the exclusive jurisdiction provided in Article 9, where the basis for the connection is materialised in a foreign territory. If the foreign State designated by that connection has adopted the model law, the Caribbean court shall decline jurisdiction of its own motion in favour of the court which is in the best position to hear the case, according to what has already been referred to as the reflex effect of exclusivity (see above, Art. 9 and comm. §4).

Commentary

Article 18

Forum non conveniens

1. The Caribbean courts may, upon a request by the defendant, decline jurisdiction due to facts occurring outside the Caribbean territory if:

  1. it is useful to hear testimony when the witnesses reside abroad and when hearing such testimony abroad or the appearance of the witnesses before the Caribbean court would entail excessive expense for either party; or
  2. it is useful for the court to proceed to personal verifications to be carried out regarding disputed facts occurring abroad;
  3. the facts were committed abroad.

2. The Caribbean courts shall decline jurisdiction when the applicable law assumes that they have powers not granted them by Caribbean law, whose exercise would be called for in the case at hand.

201. The exception of forum non conveniens288 first appeared in Scottish private international law in the nineteenth century. In the twentieth century, it became widespread in the legal orders pertaining to the common law tradition, while not fitting spontaneously into the system of international jurisdiction cultivated by the civil law tradition. Its acceptance by the model law is strictly measured. This mechanism, which aims at effecting a transfer of the suit from a domestic to a foreign court, is based on granting the judge to whom the case is referred a certain latitude to decide whether he may appropriately exercise his jurisdiction in view of the specific circumstances of the case at hand; it operates as an exception clause when the abstract configuration of the disputed relationship places the latter under the heading of a ground of jurisdiction whose basis is challenged by some singular aspect of the suit. In such a case, the argument drawn from forum non conveniens which the defendant objects to the development of the proceedings aims at having concrete compliance prevail over abstract compliance and therefore at leading the judge to disclaim jurisdiction. One essential characteristic of the exception resides in the discretionary power to re-evaluate its own jurisdiction which it grants the court. In English law, no doubt, that power is bounded by a series of factors which must be taken into account before referring the parties to a more appropriate court, so that its discretionary character affects mainly the weighting of those factors. There is nothing arbitrary about such a process, which must remain guided by the objective of sound administration of justice; however, the longer the list of factors to be considered, the broader the discretionary power. As a result, the predictability of international jurisdiction is weakened, and so is legal security.

202. For that reason, Article 19 subjects the admissibility of the exception to deliberately narrow terms289. The first is not explicitly formulated in the body of the provision, but is implied by its title: an available court to which the case can be transferred must exist abroad; moreover, this cannot be any court in any country that states that it has jurisdiction, but the court of the State which is close enough to the elements of fact whose knowledge is required in the case at hand for the sound administration of justice. Indeed, the second condition is that the access of the Caribbean court to facts occurring outside the territory must be so difficult as to jeopardise the possibility of proving them judicially. This condition rules out the admissibility of the exception when the matter has been referred to the Caribbean court on the basis of a ground of exclusive jurisdiction provided in Article 9. First of all, one of the grounds of exclusive jurisdiction is precisely the location of the relevant elements of the disputed situation in Caribbean territory; next, its typical effect is to deem, from the Caribbean viewpoint, that the courts of other States are radically devoid of jurisdiction, so that they cannot hand down a decision liable to be recognised in the Caribbean.

203. This second condition is summed up by two alternative possibilities. First, the taking of evidence, and especially the production to the court of relevant facts occurring outside the territory, may require the participation of witnesses who are themselves outside Caribbean territory, so that cumbersome and lengthy procedures involving letters rogatory would have to be implemented, or the witnesses' travel expenses would have to be paid for. If those solutions turn out to be excessively expensive for either party, the court may consider it advisable to transfer the suit to a neighbourhood venue, provided that it considers it appropriate. Second, the taking of evidence by the court may require the performance of personal verifications by its members or by one of them, where cross-border travel to the place in question is legally, physically and financially impossible. By specifying those two possibilities, Article 19 sets the boundaries of the scope of the exception of forum non conveniens.

204. It would not have been inconceivable to broaden the scope of the exception by including cases where, rather than the geographical proximity of the relevant facts, their intellectual or even technical proximity is lacking. Without even mentioning knowledge of the foreign law involved, it may happen that the Caribbean court does not have the necessary means to implement the applicable foreign law because the latter presupposes the exercise of powers not granted to it. The model law has not opted for this possibility. On the one hand, it calls more directly on the judge's discernment and initiative and for that reason it is not clearly within the framework of an exception offered to the defendant. On the other hand, it calls rather for a settlement from the angle of conflict of laws via adaptation or recourse to the general subsidiary function of the lex fori, rather than from the angle of international jurisdiction. For all that, this sort of difficulty most often comes up when the substance of the case is examined, that is, once the proceedings are well on the way - whereas, on the contrary, the facts occurring outside the territory already appear in the summons issued by the claimant - and it will be too late to raise the exception of forum non conveniens which, by inviting itself into Romano-canonical procedural law, joins in limine litis the exception of lack of jurisdiction.

Commentary

Article 19

Objection of lis pendens

1. When, prior to the referral of a case to the Caribbean court, another claim having the same subject matter and the same cause has been brought between the same parties before a court of another State, the Caribbean courts shall stay proceedings until the foreign court to which the case was first referred has ruled on its jurisdiction. If the foreign court to which the case was first referred states that it has jurisdiction on the basis of a ground of jurisdiction judged to be reasonable from the viewpoint of the rules governing the recognition and enforcement of foreign decisions, the Caribbean court to which the case was subsequently referred shall decline jurisdiction.

2. However, the objection of lis pendens of proceedings shall be rejected if the referral to the Caribbean court is based on the provisions of Article 9. The objection shall also be rejected if the referral to the Caribbean court is based on a choice of forum agreement which complies with Article 10 and under which the chosen forum has exclusive jurisdiction.

205. Article 19 of the model law sanctions the principle of the admissibility of the objection of international lis pendens: the Caribbean judge must take into account, and possibly draw the consequences of the existence of proceedings pending abroad, which were initiated earlier for the very claim which has just been referred to him290. For a long time, this regard for foreign judicial facts and the related consequences was admitted only within the framework of treaty law; some bilateral treaties, such as the 1969 Franco-Spanish convention, or multilateral ones, such as the Brussels Convention dated 27 September 1968 (Art. 21, which has become Art. 27 of the Brussels I Regulation and will soon be Art. 29 of the recast Regulation) provide for this form of cooperation: a court in one country waives its jurisdiction and trusts the court in another country before which the suit was previously initiated. The model law is neither an international treaty nor a European Community instrument. However, as it diffuses common values among the States adopting it, it is a means of standardisation of legal systems and thus contributes in its own way to the establishment of international harmony between solutions; it thus plays its role fully when it proposes a mechanism intended to settle procedural conflicts, which generate conflicts between decisions at the international level, and thus to guarantee that one and the same dispute will have one and the same outcome as between the countries involved.

206. This “spirit of judicial cooperation” is not the soul of all national systems of international civil procedural law. Must we recall here the silence of the Ley de Enjuiciamiento Civil or the outspoken hostility of the draft “model code of private international law” developed by the Academia Mexicana de Derecho internacional privado y comparado291 (Art. 160)? Such a position can no doubt rely on arguments which, though not contemptible, are certainly not fully convincing. The major complaint to the admissibility of the objection of lis pendens is that the latter not only casts doubt on the soundness of the grounds for the jurisdiction of the court to which the matter is secondly referred, but especially creates a risk of relinquishment of jurisdictional sovereignty. Sovereignty assuredly deserves consideration, but the Dutch school, when constructing the notion of comitas in the eighteenth century, showed that it is not incompatible with consideration for foreign legal realities. All in all, the idea of jurisdictional sovereignty only requires here that a court may freely choose to refrain (or not to refrain) from ruling in foreign proceedings liable to produce a decision whose quality will be equivalent to its own. As for the soundness of the grounds of jurisdiction, it will not be tested in any measure by the objection of lis pendens unless the latter amounts to an exception of forum non conveniens; the narrow scheme of forum non conveniens chosen by the model law does not suit it to that function, since it is developed at the territorial level alone292, whereas lis pendens is also developed at the chronological level.

207. On the contrary, it should be recalled that by preventing conflicts of proceedings from prospering, the objection of lis pendens prevents conflicts between decisions. Such a conflict may be indifferent to a particularistic legal order, since it does not challenge its consistency. But it is very damaging to the parties themselves, who, after bearing the costs and delays of two lawsuits, will find themselves faced with two decisions whose enacting provisions may be divergent, not to say conflicting. Such an antinomy at the international level breaches the right to effective judicial protection, since the dispute, after being judged twice, has not actually been settled. Indeed, the parties are subject to orders that differ according to place and time. This might, to the detriment of procedural economy, respectively incite them to alternately and indefinitely thwart in one country the enforcement of a decision secured against them in another. Thus, in order to prevent such blows at the beneficial unity and continuity of cross-border legal treatment, and counting on the Caribbean spirit of judicial cooperation, Article 19, like many modern legislations, opts for the admissibility of the objection of lis pendens and even grants the court the power of decreeing it of its own motion. As a result, it shall determine the well-foundedness and consequences of the objection.

208. The conditions required for international lis pendens correspond to the conception widespread in comparative private international law. They relate to the chronology of the concurrent referrals and to the identical nature of the dispute.

As regards the first point, the situation is characterised by the existence of claims successively admitted by two courts pertaining to two different States in compliance with the rules governing jurisdiction. Since the admission of the objection leads to the removal of the case from the court to which the matter was referred secondly, the order of the successive referrals must first be discerned; the model law does not seem to express any special preference as regards that dating requirement. This silence amounts to a reference to the procedural law of the Caribbean as regards the claim submitted to the Caribbean court, which, in the absence of any specific indication, cannot consider that the case has been referred to it until the formalities provided to that end by its own law have been carried out. That reasoning is not as obvious as regards the claim submitted to the foreign court: since it is incorporated into Caribbean private international law, the provision found in Article 19 can just as well be read as opting for the solution of the law to which it now belongs rather than for the procedural law of the foreign court. However, the weak point of the latter interpretation resides in the fact that it reconstructs reality according to the manner of Caribbean law, whereas according to the view of foreign law the date of referral would be different; it is difficult to neglect the foreign law when determining the date of referral to the foreign court, and, more generally, its legality, since a claim which is irregular from the viewpoint of that court cannot effectively initiate proceedings and therefore result in a conflict. Thus, in establishing both the chronology of the referrals and the jurisdiction of the courts involved, the law proper to their respective States shall be referred to293.

209. Next, and this is the heart of the problem, the dispute must be identical. Article 19 characterises this as the concurrence of two claims whose subject matter and cause are the same and which are promoted by the same parties. The model law here transposes to claims the conditions usually required for decisions concerning the authority of res judicata, which is justified by the prospect of conflict of decisions which forms the context of the objection of lis pendens. The experience of the Court of Justice of the European Communities shows that this threefold identity can give rise to various interpretations which must be stabilised inside a common system of distribution of jurisdictions. Without going into the details of the rather comprehensive choices made by that jurisprudence294, one may hope that the application of Article 19, both by the Caribbean and by the other States adopting the model law, will take into account its international origin and the need for its uniform interpretation.

210. The conditions spelled out above (chronology of referrals and threefold identity of disputes) open up for the Caribbean court, when second in the order of referral, the prospect of the removal of the case. This does not entail any risk of denial of justice, since the proceedings will continue before the court to which the case was first referred. The removal is not immediate, but subject to verification that the decision expected from abroad has the best chances of being recognised and effective in the Caribbean. The Caribbean court cannot relinquish the exercise of its jurisdiction (which is no less legitimate than that of the foreign court) unless it is reasonably predictable that the lawsuit which is, so to speak, delegated to the foreign court will succeed in settling the difference between the parties from the viewpoint of the Caribbean legal order also. Indeed, the purpose of the objection is precisely to guarantee unity of decision. Consequently, the court will decree a stay of proceedings in order to confront the difficulties of a prognosis regarding the qualities of a decision which is expected, but not yet handed down. That court is not able to rule as yet on compliance with the public order, nor in short order on the fairness of the summons; in order to make an assessment possible, it is only asked to base itself on the indirect jurisdiction of the foreign court as defined by Article 74, iii. whose respect or breach are established. The second paragraph of Article 19 takes care to specify that this sole condition of indirect jurisdiction cannot be met when the referral to the Caribbean court involves exclusive jurisdiction, that is, jurisdiction under Article 9, but also jurisdiction resulting from an extension under Article 10 if the parties have not waived its exclusivity295.

211. If it appears to him that the condition of indirect jurisdiction is not met, the Caribbean judge orders the resumption of the proceedings and rules as though there were no concurrent proceedings, since it is a known fact that the latter cannot result in a decision liable to be recognised in the Caribbean. If on the contrary the condition of indirect jurisdiction is verified, the Caribbean court shall decline jurisdiction and the proceedings shall continue before the foreign court, but obviously with no guarantee that the expected decision will be lawful in view of the other requirements of Article 74. If it were to prove deficient, the parties would then be able to renew the suit in the Caribbean.

Commentary

Article 20

Exception of connexity

When two claims are so closely related that it is advisable to investigate and judge them at the same time and if one of them is submitted to a foreign court and the other to a Caribbean court, the Caribbean court may, at the request of a party and aside from the cases of exclusive jurisdiction referred to in Articles 9 and 10, decline jurisdiction, provided that the foreign court has jurisdiction for the claims in question and that its law allows their joinder.

212. The exception of international connexity concerns the case where two distinct claims are respectively submitted to two courts pertaining to different States and where it appears that they are so closely related that joining them in a single lawsuit before a single court will prevent the production of conflicting decisions. For instance, it would be appropriate to entrust to one and the same judge a petition for divorce by a husband acting before the foreign court of the place of residence of the family, which is still his, but no longer that of his wife, and the wife's claim for a contribution to the expenses of the marriage submitted to the Caribbean judge of her habitual residence: it would be unfortunate to have the marriage bond dissolved on the one hand and spousal support granted on the other, whereas the latter assumes that the marriage still exists. In this case, the affinity with lis pendens is quite obvious: in both cases, the purpose is to avoid having two proceedings lead to results whose coexistence is rationally unacceptable. The differences are nonetheless obvious: the notion of conflict between decisions covers not only contradiction, in which one of the terms excludes the other, but also irreconcilability or incompatibility, in which one of the terms does not fit the other. Thus, both the conditions and the effects of connexity differ from those of lis pendens.

213. In both cases, no doubt, two suits must actually have been brought, one first before a foreign court, the other subsequently before a Caribbean court. The method of dating the referral is the same and direct jurisdiction need be appraised only according to the procedural law of each State296. On the other hand, the claims need not have the same cause or the same subject matter, nor must the parties be the same. The definition of connexity, taken from the Brussels I Regulation (Art. 28. 3) by the model law, covers the case in which the separate suits, whether or not brought by the same persons, are based on factual elements that are at least partially common, on the basis of which each makes a different claim, so that it is advisable to investigate and judge them at the same time in order to arrive at a homogenous evaluation of the overall situation, leading to coordinated solutions.

214. When such is the case, the Caribbean court can decline jurisdiction; since connexity is less serious a situation than lis pendens, it shall exercise that power only if one of the parties requests it, and within precise limits. Thus, it may not decline when its own jurisdiction is exclusive according to the meaning of Articles 9 and 10, which, indeed, prohibit it from declining. Thus, again, it will have to ascertain that the foreign court is, according to its own jurisdictional rules, able to join, in one and the same suit, the matter proposed to be transferred to it with the one already referred to it. Outside those limits, the Caribbean court has a discretionary margin of appreciation which will no doubt lead it to verify other parameters; thus, after ensuring that the matter can be dealt with by the foreign court, it will check that its transfer will not deprive the parties of the possibility of appealing the decision (see Brussels I Regulation, Art. 28.2), or examine whether the expected decision will be liable to be recognised and enforced in the Caribbean.

Commentary

Article 21

Internal allocation of jurisdiction.

When the Caribbean courts have jurisdiction under this law, jurisdiction ratione materiae and territorial jurisdiction shall be determined, if need be, by the relevant provisions of the code of civil procedure.

In the absence of provisions liable to found territorial jurisdiction, the latter shall be determined by transposing the grounds of international jurisdiction. When such a transposition does not make it possible to determine territorial jurisdiction, the claim shall be submitted to the court chosen by the claimant in compliance with the requirements of sound administration of justice and of procedural economy.

215. On the basis of the argument that the issues of internal allocation of jurisdiction pertain to the domestic law of civil procedure, since they relate directly to the operation of the State's judicial apparatus and to the distribution of tasks between its organs, the model law, dedicated as it is to private international law, could have left them aside. However, while that thesis can be sustained with some reason, the fact remains that, generally speaking, the rules governing internal allocation of jurisdiction were made solely for disputed private law relationships devoid of any international character. For a long time, the dominant conception of international jurisdiction was a public-law one, involving notions such as the natural judge and the bond of political allegiance. According to that conception, the designation of a national court was understood as a devolution of the case for the benefit of the State, globally considered in its capacity as a sovereign. As a result, the subsequent assignment of the case to a court among all those exercising such national jurisdiction concerned a private international relationship converted into a domestic relationship. Today, that doctrine is forced to make ever more room for one more marked by private law, where the rules of international jurisdiction are guided in their choices by consideration for the private interests of the litigants; thus, the idea of an international law relationship naturalised, so to speak, by the rule of international jurisdiction has strongly declined. The settlement of the matter of international jurisdiction does not do away with internationality; even though the apprehension of the case by the domestic court formally mitigates that character (since the relationship is destined to be integrated into the machinery of State justice), substantively it remains marked (since the relationship is still as composite and multilocal). It is precisely that resistance of internationality that justifies the model law's incursion into the field of internal allocation of jurisdiction.

216. In fact, the matter is dealt with cautiously297. The first paragraph of Article 21 leaves free rein to the rules governing the internal allocation of jurisdiction, whether ratione materiae or territorial. It thus bows to the public-law conception. However, it assumes that those rules, though hardly attentive to the needs of private international relationships, do not run contrary to them. It is only in cases where they prove to be ineffective that the second paragraph opts for solutions specific to international disputes. This can happen with regard to territorial jurisdiction when, for instance, Caribbean jurisdiction is based on the nationality of the parties whereas neither of them is domiciled in the Caribbean. The model law then provides that the lack of a connection shall be remedied by transposing or adapting the rule of international jurisdiction, thus conferring on it, as an extension of its “general” function, a “specific” function of localisation inside the Caribbean judicial organisation; here this could lead to the court of the parties' residence, even if occasional, in the territory. But this method may fail to produce a result. In that case, the claimant's choice shall be followed, provided that it complies with the requirements of sound administration of justice and procedural economy; the court to which the matter is referred shall verify, for instance, that the claimant, relying on a choice of forum clause designating the Caribbean courts in general, has chosen, by approaching it, a court close enough to the facts of the case, or sitting where the decision will have to be enforced, or which is simply the most convenient for both parties.

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.

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Draft OHADAC model law relating to private international law.pdf