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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 29

Celebration of marriage

1. Capacity for marriage shall be governed by the law of the domicile of each of the future spouses.

2. The requirements of matters of substance and of form of a marriage celebrated in the Caribbean shall be governed by Caribbean law.

3. A marriage celebrated abroad shall be deemed valid if it is in conformity with the law of the place of celebration or if it is recognised as such by the law of the domicile or of the nationality of either of the future spouses.

248. Article 29 of the Law summarises the intricate matter of the validity of the marriage in three simple and easily applicable provisions, distinguishing between the legal rules governing the marriage celebrated in the Caribbean and that celebrated abroad335. In the first case, besides the corresponding issue relating to the Caribbean authorities' competence to authorise a marriage, the problem of the law applicable to the different aspects arises, surrounding the celebration and validity of a marriage: essentially, the capacity for marriage, the form of the manifestation of the matrimonial consent and what we might call the law applicable to the substance of the marriage. In the second case, the provision is not constituted as a rule of the applicable law, but as a provision that establishes the conditions of recognition. This set of regulations responds to a modern view of marriage in private international law, which differentiates between domestic marriages and foreign marriages depending on the nature of the authority celebrating the marriage (national or foreign) and, as a result, also establishes a different legal rules governing each of them: as has been said, the first type poses problems of applicable law, while the second type poses problems of recognition336. The importance of considering a marriage validly celebrated transcends the mere aspects of private law, where the marriage is a nuclear institution, from which effects can be derived for many other matters (name, maintenance obligations, inheritance rights), to establish itself even as an important piece in the identification of the own population of the Caribbean. The relationship between marriage and obtaining the nationality of the Caribbean is crucial in some systems337.

249. In accordance with provisions of article 23 of the present Law, the capacity for marriage is subject to the law of the domicile of each of the future spouses. It is therefore a solution that is linked in a distributive manner, in such a way that it is the law of the domicile of each one of the future spouses that determines their singular capacity. Obviously, this solution in terms of validity of the marriage by reason of the capacity of the future spouses will require that both laws consider that this capacity coincides for each of the future spouses. It is sufficient that either of the future spouses lacks capacity in accordance with the law of their domicile so that such a defect can determine some degree of ineffectiveness of the marriage celebrated338.

The law of the domicile thus not only governs the strict issues of capacity related, for example, to the minimum age for marriage339 or the cases in which, despite having this minimum age, there is a lack of actual capacity to give truthful and informed consent (concurrence of deficiencies or mental anomalies, which, however, will be more of a factual than a legal evaluation), but also the so-called matrimonial impediments, which focus on personal or family circumstances, such as the impossibility of marriage between family members related up to a certain degree of kinship. Again, this distributive application can lead to the thwarting of the marriage in those cases in which the impairment is of the so-called bilateral variety (articulated according to the relationship with the other spouse) and only provided for by one of the two laws. Thus, v.gr., if the law of one of the future spouses connected by kinship in the third degree in the collateral line (aunt and nephew) considers this third degree to be an impediment, they will have to conclude that there is no authorisation of the marriage, even if the law of the domicile of the other party does not provide for such obstacle.

This Law is also required to establish the circumstances and conditions in which the impediments might be “dispensed” with as well as under what circumstances and who is responsible for integrating the capacity in the cases in which it is lacking. This fact is not free of problems in those cases in which the law of the domicile instructs a specific authority to substantiate the petitions for dispensation, since according to the specific cases, this dispensation may be granted by the equivalent Caribbean authority (forum) and in other cases, the future spouses will be the ones who have to obtain this from the foreign authorities. It must be considered, however, that many of those that theoretically can be considered as impediments to a marriage are an integral part of the very concept or notion of marriage which, in any case, is the concept of the Caribbean (of the forum). This can be the case of the sex or, to a lesser degree, of the traditional impediments of nuptial tie.

It is certainly arguable that is the sex of the future spouses is a matter to be regulated by the law of the domicile of each person as if it were one of the above-mentioned bilateral impediments. The progressive openness of different legal systems to the authorisation of marriage between persons of the same sex has meant that the cases in which such marriages are celebrated tend to be restricted to the territory (or the consulates, as appropriate) of the countries that recognise it. In practice, the celebration of marriage between two men or two women is not going to be requested from a Caribbean authority that does not provide for such a marriage. If one were to seek to extend this condition to a question of capacity, two persons domiciled in Argentina, or in Uruguay or in Spain could claim such a possibility. Probably, in some cases, the public order of the Caribbean340 would enter into operation, although such recourse is not necessary. The issue of the sex of the future spouses is an integral part of the concept and content of the marriage of the forum and, from this perspective, falls within the second paragraph of this article 29, also exempting the provisions of article 23 on the law applicable to the civil status, since, even discarding its classification as a question of capacity, does not cease to be undoubtedly a question of civil status. It must be taken into account, in any case, that the celebration of this type of marriage may not be alien to the practice of the Caribbean, according to which it is thus recognised progressively by each State of the Caribbean and, even today, according to principles such as “concordance” and “recognition” in the systems with a Dutch341 legal legacy or the beginning of “identity or legislative assimilation” in the countries with a French342 legal legacy.

250. The above-mentioned paragraph two governs the requirements of substance and of form of a marriage celebrated in the Caribbean and, once again, a simple and fully consistent response is given with the nature of the matter. The authorities of the Caribbean cannot celebrate a marriage that is not their own, since both the formal matters as well as the substantive issues are subject to the law of the Caribbean (law of the forum).

With regard to the first aspect, the form of manifestation of the matrimonial consent, there is no doubt from the perspective of the marriage that is going to be entered into: the consolidated rule auctor regit actum indicates that each authority complies with its own law at the time of completing or demanding the formalities inherent in the act for whose grant it is required. It is inconceivable that a marriage celebrated in a Special Notary's Office of the Cuban Ministry of Justice or before a circuit judge or notary of one of the future spouses in Colombia, is subject to the formal requirements of a different foreign law than Cuban law, in the first case, or Colombian law, in the second case. The forms and solemnities will be those of the Caribbean.

Less absolute is the subjecting of the law governing the substance of the marriage to local law, because other solutions would be imaginable, but the acceptance by the second paragraph of article 29 that we are currently discussing is the most appropriate. On the one hand, the “type of marriage” which an authority celebrates is “theirs”. Taking into account the evolution in the concept of the family and the concept of marriage - as one of the possible ways through which the family is organised - that there has been in comparative law in the last few years, it could no longer be said that marriage is a universal institution which substantially means the same thing in any place of the world343. The marriage celebrated in the Caribbean is a Caribbean marriage, and, therefore, the underlying conditions are those established by the Caribbean legislation. The present provision thus deviates from others in that the substantive requirements of the marriage are potentially subject to different laws to the law of the forum, but coincides with others that opt for the same solution344.

Among these substantive conditions, one should mention, in particular, the condition relating to the sex of the future spouses since it has already been mentioned, and the content of their consent. It is this second aspect, which is of paramount importance, since, not infrequently, it has traditionally been considered as inextricably linked to the personal law of each of the future spouses345. In a strictly logical sense, there can only be one matrimonial consent, as this is a nuclear requirement of the marriage. That is to say what the future spouses agree to is nothing other than to constitute a union as the conjugal bond subject to the legal rules. And these rules may only be singular and not plural. It is an attack on logic to conceive the provision of the matrimonial consent as an asymmetric reality, in which each of the spouses can consent to something different to what other consents to, according to which the consent of one is subject to their personal law and consent of the other to theirs. This is not possible. It is a kind of traditional residue of the expansive force of the personal law, which lacks any basis. Matrimonial consent is thus univocal and that is which the law of the Caribbean provides for connected to its concept of marriage.

251. It is also possible to extend this to the possible defects of consent and the most common problem of marriage celebrated though a simulation in the consent. The so-called sham marriages are those in which the will of the future spouses does not coincide with the manifested matrimonial consent. The reasons for this practice are manifold, but among them are reasons related to an attempt to defraud the regulations on the acquisition of nationality or the regulations on a person's situation as being an alien. The control of this type of situations tends to be eminently factual and, in many cases, unrelated to a specific policy: it is noted that the future spouses (or the spouses, if the verification is performed a posteriori), did not know one another before the marriage, did not have any kind of relationship, did not live with one another before or after of the celebration of the marriage, etc., and if it is deduced from this that there was a simulation. However, proper treatment of the subject requires a more scrupulous verification of the simulation, taking into account, above all, the fact that it is not a mere legal transaction, but one which represents the exercise of the ius connubi that is called into question. From that point of view, the existence of fixed rules or mere presumptions with a greater or lesser degree of predictability makes clear the identification of an applicable law beyond the merely factual assessment. In the case of article 29, which we are discussing, this is the law of the forum for the cases of marriages celebrated or to be celebrated before the Caribbean authority.

252. This article concludes with a provision on the recognition of the marriages celebrated abroad. Despite its appearance, it is a genuine recognition standard (and not of applicable law), which establishes a generous range of possibilities, from the recognition of the validity of the marriage to its ineffectiveness. While in the marriage concluded with the Caribbean authorities the provision is the application of the law of the forum, except as regards the capacity, concerning the validity of marriage concluded before foreign authorities, the standard is oriented towards the validity of the marriage through a threefold possibility articulated in an alternative form. The marriage is valid if it conforms to the law of the place of its celebration. The reference is to a single law, although its provisions of private international law may be taken into account. If it is not an application of the law of the place of the celebration of the marriage by the authorities of the Caribbean, the rule excluding the referral referred to in this Law346 is not relevant. Thus, a marriage celebrated abroad that is valid applying the local law and the personal law for the capacity in accordance with the provisions of private international law of the local law will have to be considered valid for the Caribbean.

And that is the case of the two alternatives that are linked beside local and foreign law: depending on the cases, these two alternatives can be four: each of the spouses' national law and each of the spouses' law of the domicile. In this case a prerequisite of recognition has to be considered again, which instead of being established unilaterally by the law of the Caribbean, refers to an entire competent legal system: if the marriage is valid for any of those laws, whatever the law or laws effectively applied to its celebration, the marriage must be considered to be valid in the Caribbean. It is a generous response to the problems that that may arise with limping marriages (valid in one place and invalid in another) under the prism of the stability of the civil status and the law regarding the family and personal life, as well as to ius connubi. In any case, it is fair to remember that this recognition, as noble as it may be, cannot grant efficiency to cases contrary to the public policy of the Caribbean, in whose determination the prohibition of sham marriages once again plays an important role (lack of specific provisions on the subject).

Commentary

Article 30

Personal relations between spouses

Personal relations between spouses shall be governed by the law of the common matrimonial domicile immediately following the celebration of the marriage; in the absence of such domicile, by the law of the common nationality at the time of the celebration of the marriage and, failing this, by the law of the place of celebration of the marriage.

253. A valid marriage gives rise to a bundle of varied and heterogeneous relations. Some of these are essentially economic, while others cannot be classified as such. Among these, there are various types: effects on the spouses' or either one of their surnames, effects on the rules governing the filiation of the child born beforehand (v.gr., legitimation by subsequent marriage) or due to having (presumptions of paternity of the mother's husband), obligations (at least formal) of cohabitation, mutual respect, fidelity, support, etc. Some of these effects have their own legal regime in terms of the applicable regulations: thus, v.gr., the rules governing the name of natural persons will be regulated, as seen before, by the law established in article 25 of the present Law; while the filiation will be governed by the provisions of article 35. The same can said of the property relationships referred to in article 31 of the present Law. Both the provision governing the law applicable to the personal relations between spouses as well as the law governing the property relationships are general provisions (the first more than the second), which yield in the face of the more specific ones that we are referring to347.

From a point of view of opting for specific connection criteria, it must be stated that in the modern legal systems that understand marriage to be a direct expression of the will of the spouses as autonomous persons acting under their own responsibility, this will be the determinant factor of their own cohabitation, the category of personal relations of the marriage, as comprising rights and obligations imposed by the law, is certainly questionable348. But it should not be lost sight of that private international law must take into account any set of different situations and concepts that might be presented in the forum of no matter what foreign legal system.

254. In this sense, whether the scope of application of article 30 is based on a narrow or broader definition, it should be noted that it has a special significance, since it constitutes a kind of general statute or law applicable to the substance of the marriage with potential significance in matters such as the dissolution of the same by notification of death of one of the spouses or even in cases where a case of separation or divorce has to be interpreted, where the law applicable is causalist. Indeed, the notification of death of one of the spouses regulated by their personal law - that of their domicile, in accordance with article 26 of the present Law - will govern the conditions for this notification to be made349 but it is debatable whether the effects on other legal relations can automatically be under the protection of that law. One of those questions is the matter of the dissolution of the marriage bond that the person declared deceased has. It does not seem very respectful of the equality between the spouses that has to govern the marriage, from its celebration to its dissolution or termination, to consider that it is the personal law of the person declared deceased that unilaterally decides on whether it implies, and under what circumstances, the dissolution of the marriage bond: what is its legitimacy when, for example, the regulation is different from the other spouse's personal law? Neither, obviously, would it be fair if it were precisely the “present” spouse's personal law that was the determining factor of this matter. A neutral law closely linked to the marriage would be the best option: that law is the law governing the personal relations between the spouses.

The second example has similar characteristics. In those cases in which, in accordance with article 33 of the present Law, the law applicable to divorce has a material content that refers to any of the typical conjugal obligations as a cause of the divorce, the interpreter is required to interpret such causes and two possibilities are opened up: to simply do this according to the law applicable to divorce, or to introduce, by way of interpretation, the provisions of another law: the law governing relations between the spouses. Article 154.2º of the Civil Code of Colombia provides a paradigmatic example, when it establishes as causal “The serious and unjustified failure by either of the spouses to fulfil the duties imposed by law as spouse and as parent.” Indeed, since the law governing divorce is Colombian law, but the law governing personal relations between spouses is different, what is the law that determines the content of those duties imposed by operation of the law? It is not unreasonable to think that it is precisely the law governing the personal relations between the spouses; the law that the spouses know and to which they adapt their behaviour, even if another law has to be the law governing divorce.

255. Article 30 is constituted in this context as a provision that identifies the law presumably closer to the marriage. It uses for this three subsidiary or cascaded connections that reflect different proximity criteria. Without any doubt, the law of the common matrimonial domicile immediately after the celebration of marriage is the most closely linked with this, since not surprisingly it coincides with the personal law of both spouses. In the absence of this law, i.e. when the spouses have a different domicile after the celebration of the marriage, the rule selects the common national law at the time of the celebration. Once again, it is a closely linked law, given the absence of a common domicile and taking into account that in terms of the personal law, the nationality is the natural alternative to the domicile350. In the cases in which the peculiarities of the marriage determine that there is neither a common domicile immediately following the marriage nor a common nationality at the time of its celebration, one opts for the relations between spouses being governed by the law of the place of the celebration. This is clearly not a law closely linked to the marriage. The place of the celebration in many cases may be merely random or coincidental, but as a close connection in light of a degree of internationality as significant as that of the specific marriage (spouses' different nationality and different domicile) fulfils the function of granting sufficient legal protection.

Finally, it must be considered that in order to avoid the problems arising from a possible change of connecting factor, that is to say the occasional change of circumstances (domicile, nationality) that determines the applicable law, article 30 locates these laws temporarily in the immediate period after the celebration of the marriage (common domicile) or at the time of the celebration (common nationality). Thus, the law governing the personal relations between spouses will be known and be the same as that of the celebration of the marriage, so that a change in the above-mentioned circumstances cannot modify it. Although this circumstance may introduce a degree of rigidity to the solution, the close connection created between this provision and the next, regarding the property relationships in marriage, calls for a rigid and predictable solution. This rigidity is also mitigated by the evolution of the different domestic systems that are moving towards solutions based less on mandatory rules and more on the spouses' capacity to regulate their own relations according to their common interests.

Commentary

Article 31

Property relationships in marriage

1. The property relationships between spouses shall be governed by any of the following laws, chosen by the spouses before the celebration of the marriage:

  1. the law of the nationality of either of the spouses at the time of the designation;
  2. the law of the domicile of either of the spouses at the time of the designation;
  3. the law of the domicile of either of the spouses after the celebration of the marriage.

The choice of any of these laws must be express and stated in writing and relate to the totality of the conjugal property.

2. In the absence of such a choice, the property relationships between the spouses are governed by the law applicable to the personal relations in accordance with article 30 of the present Law.

3. The spouses may agree in writing during marriage to submit their matrimonial regime to the law of the domicile or of the nationality of either spouse.

This choice may not prejudice third party rights.

4. The law governing property relationships between spouses in accordance with the above paragraphs, whether chosen or not, shall be applicable as long as the spouses have not validly chosen a new law, regardless of the possible changes in nationality or domicile of either spouse.

256. As already noted in the commentary on article 30, the concept of property relations between spouses has a generic nature and therefore a wide scope of application. The bundle of property relations between the spouses includes the duty to provide support and assistance obligations which are translated into maintenance obligations during marriage or as a result of a relaxation or breakdown of the marriage bond; the primary matrimonial regime, governing issues as important as the contribution to the ordinary burdens of the marriage, the duty to provide mutual assistance, the solidarity for the debt assumed for the shared support of the marriage, provisions on the matrimonial domicile, etc.; it also comprises the inheritance rights of a property nature that the surviving spouse may have and fundamentally the so-called matrimonial property regime. Some of these relationships have their own applicable law: this is the case of maintenance obligations and inheritance rights, both subject to the provisions of articles 41, 42 and 43, respectively. Others, such as those relating to the matrimonial property regime, are the fundamental core of the present article351. As regards the general or primary matrimonial regime, it is common that the strong public order nature of their provisions leads to a territorial application thereof.

257. The structure of the solutions provided by the provision in question, article 31, is close to that of the Convention on the Law Applicable to Matrimonial Property Regimes of 14 March 1978352, which is in force in various departments and territories of the Caribbean, based on their participation in the international obligations of the mother country353. Thus, like the aforesaid convention, the present Law starts from an essential recognition of the autonomy of the will of the spouses as the primary regulatory criterion. Not only does it respond in greater measure to the guarantee of predictability and legal certainty, but, combined with other possibilities of choice of law, such as for example the provision regarding the law applicable to inheritance rights, it can serve to consolidate a highly desirable unity of applicable law between the inheritance law (governing the rights that the surviving spouse is entitled to through the operation of the law) and the law governing the property regime. With this a possible problem of maladjustment or misalignment of the compared practices will be avoided354.

258. The choice of law can be made at any time before of the celebration of the marriage and this marriage continuing, either to change a previously made choice or to change the law applicable until then in accordance with the reference that article 31.2º makes to the law governing personal relationships. However, the scope of the choice is different, whether it is made before the celebration of the marriage or subsequently. In the first of the cases, the range of possible laws available is greater. Although personal laws (of the domicile or of the nationality of either of the spouses) continue to exist, their temporal determination means that when the choice of law is made before the celebration of the marriage it is necessary to choose both the nationality or actual domicile of any one of the spouses as their future domicile after the celebration. This idea responds to the possible changes that the marriage may entail.

The option to choose a future law allows the future spouses to submit their property relationships for example to the law of a future domicile, where both (or one of them immediately, while waiting for the other) will locate their centre of life or one of the centres of their life. Certainly, the choice of a future (and uncertain) law always raises the doubt of its execution: if the law of the future domicile of one of the spouses is chosen and supervening circumstances unrelated to the will of the spouses lead to a change of plans, is the choice valid? The Law opts for a factual solution. The choice does not rest on a future proposed or desired domicile but on what becomes real and effective, although the reason for this it does not have to be established absolutely immediately. The very philosophy of the choice depending on the circumstances of the change that the celebration of the marriage implies makes the choice effective when one of the spouses moves to the address chosen within a reasonable period after the celebration of the marriage. If this does not happen, the choice will have no effect and the law applicable in the absence of the choice will govern the property effects of the marriage.

There is also another difference between the choice made prior to the celebration of the marriage and the one operated thereafter. In the second case, the choice cannot affect the rights of third parties, in accordance with the law that was applicable to the property relationships between the spouses. One of the problems that frequently arise in relation to the succession of two laws applicable to the same factual situation is precisely to determine the scope of the application of the new law or, more precisely, in the case covered by this article 31, the problem of the possible retroactivity of the new law. Paragraph 4, as will be seen, does not directly address this question. The logic of the autonomy of the will recommends leaving the potential determination of the “retroactivity” of the new law in the hands of the spouses, but in any case, the rights of third parties may not be affected, either for the past or for the future. If the spouses do not decide anything, the logic of the provision indicates that each applicable law will have a temporal scope of application closed from the time this is in force; the first from the time of the celebration of the marriage up until when it ceases to be so, in the ordinary cases, through the choice of the new law.

That does not mean there is a complete partition between the potential successively applicable laws. The total compartmentalisation between both laws from the time when they continuously apply to the same property is almost impossible: it is not dismissible for example that one of the spouses would acquire a benefit, utilising both assets acquired under the previous regime as well as property acquired under the new regime after the term of validity of the new law, with a possible change in the matrimonial property regime that was in force until then. It is really difficult to avoid these types of problems of maladjustment or mismatch between different successively applicable regimes. In practice, before the dissolution and liquidation of the property regime as a consequence, for example, of divorce or the death of one of the spouses, in the cases of successive regimes the most appropriate thing to do is to carry out a kind of retrospective liquidation of the regime on the date of the change of law, take into account the results of that liquidation in order to know the state of affairs at the start of the new regime and finally to liquidate this second regime.

259. A case not specifically covered by the provision is the case of the revocation of an agreement on the applicable law without its substitution by a new agreement. The case will be extremely rare, but cannot be dismissed. In this case, the objectively applicable law governing the personal effects of the marriage would automatically be the law governing the property and effects, and consequently, this law would determine the matrimonial property regime.

All of the agreements on the choice of law, whether prior to the celebration of the marriage or completed during its period of validity, must be express, stated in writing and refer to the totality of the conjugal property, since a partial choice is not possible. The difference of drafting between article 31.1º in fine and article 31.3º of the Law does not imply that no express or unitary or complete nature of the choice is also required in the case of this second article. Its eligibility is provided directly by this Law and its possible ineffectiveness will be resolved in accordance with the personal law of each of the future spouses or spouses, if it were a problem of capacity, or otherwise in accordance with the law chosen.

260. It should be borne in mind that the choice of law regulated in the various paragraphs of article 31 of the Law must not be confused with the possibility the spouses have to regulate matters or their property regime substantively through the choice of whatever they consider appropriate or through the celebration of settlements, in which, besides the determination of the matrimonial property regime they regulate in detail whatever they consider appropriate, any matters related to the management of the matrimonial property. These types of substantive agreements, both in their admissibility and in the scope of their content, will depend on what the applicable law says, which is indicated in article 31 of the Law through any of its paragraphs. Thus, if the spouses decide in marriage settlements to choose as their matrimonial property regime the regime of joint ownership of property acquired during marriage, or that of the separation of goods or that of the sharing of property acquired after marriage, this choice will be overseen by the law governing the property relationships. That does not necessarily mean that a property regime system specially provided by that law must be chosen, but only that it is the law determined by article 31 which will serve to measure the validity of the agreement.

261. The last paragraph of article 31 of the Law didactically establishes that the application of a particular law governing the property effects continues to apply until it is replaced by another as a result of the exercise of the spouses' autonomy to resolve conflicts, without which no other change in another type of circumstances can alter this law. In other words, only the will of the spouses can alter the law governing of their property relationships and only will do so from the time when this agreement applies.

Commentary

Article 32

Nullity of marriage

Without prejudice to the other provisions of the present Law, the causes of nullity of marriage and its effects shall be governed by the law applicable to its celebration.

262. Nullity of marriage is a remedy that a legal system prescribes for certain cases in which one of the conditions of marriage is not fulfilled (sex of the spouses, bilateral exclusivity), or diriment impediments (consanguinity, religious order, adoption, crime ...) have been infringed or essential formal requirements have been absent from the celebration (competent authority, witnesses ...). These examples of the requirements that can determine the nullity of the marriage is plural and can vary - in fact they do vary - from one legal system to another. Even the very concept of nullity is equally plural: different types of the same concept exist inside a single legal system (absolute or relative nullity, for example in Venezuela, absolute nullity, absolute voidability, relative voidability, for example in Bolivia) or a single concept of nullity.

The scope of application covered by the present article relates to all the cases in which the marriage may be null, different to the declaration of legal separation or divorce355. The term nullity is thus used in a broad sense to refer to the consequences of the breach or simply a failure to meet certain requirements that accompany the celebration of the marriage and the same essential issues that can determine their inexistence, nullity and as well as their voidability to varying degrees, with potentially different names.

263. Although the provision relates only to the causes and the effects of the nullity, it should be taken into account that, behind this description, aspects relating to the standing to bring the corresponding action can also be found. This standing is closely linked to each type of ineffectiveness that is sought: thus, the standing is commonly wider (any interested party, public prosecutor's office...) the more serious the defect likely to induce is (radical or absolute nullity, non-existence of the marriage); and narrower the less serious this requirement is and the closest it is located to the concepts of relative nullity, voidability or even relative voidability. The same is true for the confirmable or remediable nature of the defect and the prescriptive nature of the action for asserting the nullity or voidability. These are questions that are also governed by the law determined by the article in question, being the substantive questions that they are. This is not true for the possible intervention by the public prosecutor's office, when this is provided in the law of the Caribbean with general reference to the actions of a civil nature, where public policy and morality is affected or with specific reference to the matrimonial processes. The qualification of this intervention should be regarded essentially as procedural and not substantive, which, on the other hand, would be especially problematic in strictly practical terms.

264. Turning to the specific solution of applicable law, article 32 of the Law provides a simple, reasonable solution as regards the essence of common and matrimonial nullity in comparative law: the law governing the validity of the marriage, which is nothing other than all of those laws that are really or potentially called on to regulate this validity356. This makes it necessary once again to draw a distinction between marriages in the Caribbean and marriages abroad.

In the case of the first kind of marriages, it is the law of the domicile of each of the spouses that establishes if the marriage was celebrated in breach of any requirement of capacity, which determines some degree of ineffectiveness of the marriage, who can enforce it, for how long, its possible recognition, etc357. The remainder of the potentially relevant aspects (competent authority, form, consent, substantial budgets of the marriage, etc.) remain under the application of the law of the Caribbean.

However, as seen before, the marriages celebrated abroad subject their validity to a very powerful regime of favor matrimonii358. Therefore, the determination of the law applicable to the marriage nullity is articulated differently: the cause of nullity provided by one of the laws potentially applicable to the validity of the marriage is not in itself relevant if it is unknown by any other law: that the marriage is null because the law of the husband's domicile or the law of his nationality, for example, does not determine its nullity if the law of the wife's nationality or the law of her domicile does not make provision for such annulment. In other words, the strength of the favor matrimonii in the marriages celebrated abroad only declines with regard to nullity when none of the potentially applicable laws considers the marriage valid.

265. This last observation raises one of the most common interpretive problems regarding the law applicable to the effects of the nullity: the existence of a plurality of laws that provide for such nullity. While this element may not be relevant to the effects of the observation of the nullity (a marriage is null whether such nullity is provided by a particular law or whether it is provided by two different laws), it is when it comes to determining its effects and the effects are different in each potentially applicable law. It will always be the case in the event of declaration of the nullity of marriages celebrated abroad (thus their validity is not covered either by the law of celebration, or by the personal law of the spouses, or by the law of their nationality), but it can also occur in the marriages celebrated in the Caribbean, when, for example, there are defects leading to the annulment provided both by the law of Caribbean and by the personal law of one (or both) of the spouses. What is the law governing the effects of the nullity in these cases? Certainly, one could conceive of a law governing the particular nullity and a different law governing its effects359, or simply that the category of the effects of the nullity does not have its own identity with regard to which an effect is subject to any specifically considered360 law but none of the options is a solution expressly assumed by the Law under consideration now.

The answer to the question posed and, consequently, its significance assumes an option regarding the demarcation between the scope of application of article 33 and the remainder of the provisions that can equally be applied: the law applicable to filiation in respect of the consequences for the children of the marriage, law applicable to the maintenance obligations (both regarding children, and, possibly, the former spouse), the law applicable to the rules governing the surnames when these depend or might depend on the existence of a marriage, the law applicable to inheritance rights, etc. The rule has to be that these special statutes are governed by their own law. This choice of the specialisation is the general rule governing the relationships between the different rules of conflict of this Law.

That said, the provisions of article 32 should not be considered trivial. Firstly, it is not improbable that some of the intended effects will not be able to be framed clearly in the rules of conflict provided by this Law and, secondly, because there is sometimes an express link between the law governing the effect and the law of the specific nullity. That is what happens with the provisions of article 40.3º of the present Law: “The law applicable to annulment of the marriage, separation of the spouses and divorce shall govern the maintenance obligations between the spouses or ex-spouses arising from these situations”. In this case, the plurality of laws applicable to the marriage nullity presents a real problem that is not easy to solve in strictly formal terms: an option, founded on the principle of favor matrimonii (disconnected, on the other hand, from nullity) would be to prefer laws in place, which preserve more “effects” of the marriage. In the case at hand, it would be the law which provides maintenance to the detriment of the law which does not provide it. However, if we take into account that the provision being interpreted now (article 40.3º of the Law) is not caused by any kind of favor creditoris, quite the opposite, another option, perhaps more faithful to the purpose of the said provision, would be to apply the law more closely linked with the former spouses.

Commentary

Article 33

Divorce and legal separation

1. The spouses may agree in writing before or during the marriage to designate the law applicable to divorce and legal separation, provided that it is one of the following laws:

  1. the law of the State in which the spouses have their common domicile at the time of the conclusion of the agreement;
  2. the law of the State of the last place of the conjugal domicile, provided that one of them still resides there at the time when the agreement is concluded;
  3. the law of the common nationality of the spouses at the time when the agreement is concluded.

2. In the absence of a choice, the law of the spouses' common domicile at the time of presentation of the petition shall apply; otherwise, the law of the last common conjugal domicile, provided that at least one of the spouses still resides there; otherwise, the Caribbean law.

3. Once the petition is filed, the spouses may decide that the conjugal separation or the divorce is governed by Caribbean law.

266. The determination of the law applicable to divorce and legal separation is governed by two of the essential principles governing the solutions of the Law regarding the individual, family and inheritance: the importance of the autonomy of the will on the one hand, and, in its absence, the application of a law closely linked to the case, based, primarily, on the personal law or law of the domicile of natural persons361.

In this structure, the first option is to grant to the spouses the possibility to choose the law applicable to their divorce and / or separation. In an international context, in which the international mobility of persons has become somewhat trivial and in a socio-familial context, in which marriage has undergone a profound metamorphosis, and marriage crises, (nullity, but above all, separation and divorce) are an everyday reality, one of the most obvious targets that the choice of the applicable law must guarantee is to find the right balance between flexibility and legal certainty for the spouses. The autonomy of the will is the best instrument. On the one hand, permitting spouses to be able to choose the law of the country with which they have a certain connection as the law applicable to divorce or legal separation places them in a comfortable legal framework resistant to surprises resulting from the application of an unexpected or unanticipated law. On the other hand, the flexibility provided by the autonomy of the will means that a change of circumstances in conjugal or family life can be assumed and adequately dealt with through a change in the choice of the applicable law. In this sense, practical reasons require that the agreement to designate the applicable law may be concluded and amended at the latest by the date when the application is filed to the jurisdictional body. After this time, the choice can only be made in favour of the law of the Caribbean, the law of the court that is hearing the case362.

267. This possibility of choice has to be based on an informed, and not merely a casual or alleged choice; a bilateral choice by both spouses, such that each one of them knows exactly what will be the legal, economic and social consequences of the choice of the applicable law. The mutual choice of the law applicable must additionally be free and absent of any kind of error or duress, without which the spouses' rights or equality of opportunities could be affected. In this sense, it seems reasonable to limit a priori the list of potentially eligible laws around the personal laws of the spouses: the law of the common domicile at the time of the conclusion of the agreement of choice of law, the law of the last matrimonial domicile if one of the spouses still resides there at the time of the conclusion of the agreement and the law of the common nationality if one of the two above criteria is not applicable. It should be noted that the allusion to the last matrimonial domicile must refer to the last common domicile, based on systematic nature of the rules governing the provision. It should also be noted that the potentially eligible laws are temporarily located at the time of the choice; i.e. it is possible that the spouses have had a common residence for much of their married life, but during that time they did not opt to choose this law for their separation or divorce; this possibility falters when the common domicile disappears.

Another point to consider in the same vein is not only does the law not endlessly open up the possibility of choice but the limits imposed are opening up choice to laws that are really very similar. It was chosen to make an offer of really very similar laws, all linked to both spouses in the present or in the past (v.gr., reference to the last matrimonial domicile), in such a manner that when none of the criteria offered coincide (the spouses have no common domicile, neither of them continues to reside in the common domicile that they had and they have a different nationality), the choice of law will not be possible. The balance between the dominance of private interests (choice of law) and public interests in any case means that the law governing the separation and divorce is the law closely linked with the marriage.

268. Another result of the significance that the law attaches to the necessary awareness raising on the part of the spouses is the requirement that the agreement of choice of law be concluded in writing. This formal requirement incorporates the need for such agreement to be dated and attest to the agreement of the spouses. The date is an inevitable consequence of the limitation of the number of potentially applicable laws at a certain critical moment. The admissibility of the agreement of choice of law results directly from the Law and cannot be subject to any other condition or requirement. This does not exclude either the possible operation of the personal law of each spouse in order to determine their capacity, or the application of the law chosen in matters such as the concurrence of error, violence, intimidation, etc., in the conclusion of the agreement, so that the law applicable to the separation or divorce is chosen.

269. In the absence of agreement, an applicable law equally connected with the spouses, on the personal law is envisaged: the law of the common domicile at the time of filing the petition, or the law of the last common matrimonial domicile, provided that one spouse still resides there and, in the absence of both of these laws, the law of the Caribbean. This Law in any case may be chosen in the process itself, precluding the laws that were applicable objectively until that time. The application of the law of the forum to separation and divorce is one of the major options of comparative private international law363. On the other hand, as the solutions of this article 33 are in some harmony with the solutions that will be arbitrated regarding the international jurisdiction of the courts of the Caribbean, it can be concluded that the application of their own law in their own forum will not be uncommon.

270. The Law governing separation or divorce, whether chosen or objectively applicable, will govern the causes and conditions of the divorce or separation, the time frame, if it exist, that might be necessary for applying for the separation or the divorce, or for applying for the transformation of the separation into divorce, the possibility that the separation or divorce will be declared to be by mutual consent, the burden of proof in the case where certain grounds are invoked, etc. This applicable Law is generic compared to other laws provided by the present Law, in a manner that will not cover the aspects related to the legal capacity of the spouses, the existence, validity or recognition of the marriage subject to the separation or divorce; the nullity or annulment of the marriage; the possible economic consequences that the separation or divorce bring to bear on the name and surnames of the spouses; the consequences that the separation or divorce might have on the children; maintenance obligations, with the exception of the obligations established between the spouses on the occasion or after the separation or divorce364; or the inheritance rights that each spouse or former spouse might have in respect the other.

271. In any case, it should be stated clearly that, whatever it is, the law applicable cannot oblige an authority of the Caribbean to pronounce the divorce or the separation of a marriage that considers one of the effects of the separation or divorce to be invalid or non-existent. This would be the case, for example, of the application for separation or divorce of spouses of the same sex, with a shared home in the Caribbean, who chose the law of the country in which they contracted marriage and which was their common domicile at the time of the choice as the law applicable to their divorce. Although it is possible that the exception of public policy provided in article 68 of the present Law might not be properly applied to the provisions on separation or divorce laid down by the foreign law (considering that this is a law whose causes of divorce are considered abstractly equivalent to the causes of the law of the Caribbean), the very fact of being confronted with a reality that the law of the Caribbean does not recognise will determinedly influence the rejection of the application.

Commentary

Article 34

Non-matrimonial unions

1. The law of the place of the establishment of non-matrimonial unions registered or recognised by the competent authority shall govern the establishment and registration conditions, the effects on the property of the union and the conditions for dissolution of the non-matrimonial union.

2. The cohabitants may agree in writing during the term of validity of the union to submit its property regime to the law of the domicile or of the nationality of either one of them.

This choice may not prejudice the rights of third parties.

3. Any effect of the union that does not have a specific solution attributed by the present law shall submit to the law of the habitual residence of the cohabitants.

272. A modern law on private international law cannot ignore an increasingly common phenomenon: the family relationship between two persons outside of the institution of marriage, but who have an affective relationship and life project similar or close to that of traditional marriage365.

Unlike what happens - or happened366 - with regard to marriage, which, until very recently, was presented in a conceptual and, in some sense, common institutional form in comparative law (the most notable exception was so-called polygamous marriage, which has recently been complemented by marriage between persons of the same sex), the situation regarding stable unions of couples is highly variegated. Indeed, their definition includes heterosexual, same-sex couples, or undefined couples for reasons of gender or sexual orientation, the effects of their recognition are more or less close - sometimes, merely similar - to those of marriage, and obviously, the situation of these unions includes the conditions necessary for considering the said unions as realities with legal relevance above and beyond their obviously purely factual reality.

We should not overlook either that in many of these cases respect for the freedom of persons not to be united under any regulated institution (marriage or even a “typical” stable union) should be very much taken into account, since it is an issue related to the free development of the personality; it is a fundamental and inalienable right with a very profound impact on the regulation of the issues affecting the person, the family, marital status, etc. This idea raises questions as regards the possible treatment of this heterogeneous combination of close and diverse realities at a given time: can they be individualised by the law, or are they rather a bundle of relationships that can ignore this identification? Does the freedom had by persons in stable unions not to rely on the typical offer - marriage or other equally typical institution - made to them by the legal system render them immune to any other type of institutional constraint? This basic duality (freedom - submission to legal rules) not only affects the substantive aspects (favourably regulating stable unions, through a set of rules, or not doing this), but also private international law and, more specifically, the determination of the applicable law: is it necessary to have a general law to regulate stable non-marital unions? Or are each of the laws applicable to the other issues sufficient to regulate the problems between cohabitants?367

273. Caribbean law opts for a moderate solution by not intervening beyond where required in practice. On the one hand, it is aware that there is an increasingly more specialised regulation of these cases in comparative law. In other words, they are increasingly identifiable and more specific in legal terms. This must lead to individualise them in terms of applicable law. But, besides this requirement, the present law equally takes into account that many of the conflict rules are potentially applicable to these relationships and the effects of this non-marital union. Although not specifically conceived for this type of relationship, they are perfectly adapted to the issues raised: the law governing maintenance obligations between spouses does not need to distinguish between maintenance due as a result of a relationship of a specific type: conjugal, parent-child, any other type of kinship, or, merely as a result of a non-marital union; the manner of determining natural legal parentage or parentage by adoption, parent-child relationships, the protection of children born out of marriage, etc., are all aspects that do not need to be given a different response than if the parents were married, if this concerns a single-parent family, or parents who are not married, regardless of whether or not they are cohabiting with each other in a stable union, putting them into the category we are addressing now. The same is true for rights of succession, where the option taken in favour of the law of the deceased's last domicile disregards the legal relationships on which this law can base the allocation of rights of succession.

However, there are common core aspects of stable non-marital unions, which are either not regulated by any conflict rule, or are governed by existing conflict rules which are not capable of providing satisfactory answers. Among the latter is the law related to the legal property regime that might reasonably be applied to the union: something similar to the matrimonial property regime. The option in this case not to establish any rule and rely on the general rule on the individually considered property regime, apart from the existence of a real asset, would mean submitting this to the law where the property is located (lex rei sitae), as provided for by article 58 of the present Law. This can easily disassociate the law most closely connected to the stable non-marital union from its property regime, as well split up this regime into as many laws as there are different States corresponding at a particular time to the place where the property is located. The option for a uniform solution is more in keeping with the familial or equivalent nature of these unions. A comprehensive overview of the problem undoubtedly places it closer to the personal attachment than to the patrimonial attachments368.

This is primarily identified with the law of the State in which the union was established or registered, this being the law connected, either by the cohabitants' own implicit will, in the case of registration (which normally is also accompanied by certain conditions of stability and additional connections), either out of necessity regarding connections associated with the cases in which a particular law connects the status of stable non-marital union to a couple. However, as indicated, individual liberty and free development of the personality is a fundamental element in this type of relationships and their translation in terms of applicable law consists in leaving the choice of law to the interested parties. This could be exercised by submitting the couple's property ownership regime to the law of the domicile or law of the nationality of either one of them, as reflected in article 30 on the law applicable to the property ownership relations between the spouses.

274. The other core aspect for which there is no specific conflict rule liable to provide a satisfactory response stems from the formation of a non-marital union. The factual situation is complex and, in any case, cannot be submitted to other potential rules, as would be the case for the celebration of marriage, with which it does not share the same justifications. Article 34 opts to govern exclusively two types of stable non-marital union: registered unions and unions recognised by a competent authority. Consequently, the law applicable to stable non-marital unions established or recognised ipso iure thus remains outside of the scope of application of the article. The difficulty of determining a law applicable to their mere existence is a constant feature of international comparative law and inhibits the work of international codification369.

Commentary

Article 35

Establishment of legal parentage

1. Legal parentage shall be governed by law of the child's habitual residence at the time of birth.

2. However, the law of the child's habitual residence at the time of an action to establish legal parentage shall apply if this is more favourable to the child.

3. The voluntary recognition of paternity or maternity shall be valid if it is in conformity with the law of the child's habitual residence at the time of birth or at the time of recognition, or with the law of the habitual residence or the law of the nationality of the person who carries out the recognition.

275. The Law aims to establish two rules to refer to two principal forms of proof of legal parentage, those derived from adoption and the rest, within which so-called biological legal parentage is the key condition. It cannot be ruled out that any other types of legal parentage, such as those derived from surrogate maternity, might also be subject to this rule. The present article refers to legal parentage derived from facts or titles other than adoption370. As we will see371, the current conception of adoption, in the cases of adoption of minors, reflects rather a form of protection of minors or persons without legal capacity than a form of establishment of legal parentage (even though it is both of these at the same time).

276. The law applicable to the determination of the legal parentage raises many questions at the time of selecting a specific factor for determining it. On the one hand, this is a real situation related to more than one person. Indeed, in the ordinary cases of the determination of legal parentage, there are at least two persons, the child and one of their parents; not infrequently there are three persons, the child and both parents; and it cannot be ruled out that more than three persons can exist, for example, in the above-mentioned cases of surrogate maternity. This potential plurality of personal reference points, all of them affected by the legal parentage relationship which, by definition, is bilateral or trilateral, complicates the choice of applicable law if we take into account a new variable: the intrinsic relationship that exists between the personal laws of the father and the mother and the child, whether one opts for the law of the domicile or for the law of the nationality. In this second case, we must take into account the added factor of the structural relationships between legal parentage and nationality in the cases in which the nationality is passed down iure sanguinis372.

Article 35 of the present Law opts for a solution that is consistent with the principle of the personal law and focuses this on the person of the child. This is a neutral solution that avoids any type of different treatment that takes into account the possible parents (as would be the case, for example, if the personal law of the mother were chosen). This simplifies the structure of a conflict rule that wishes to take into account both of them and which would require collective linkages (common domicile or nationality, for example) which are not always present in reality. The law of the child's domicile is unique and always exists.

However, this does not avoid all kinds of interpretive problems. Retaining the law of the domicile, which is an essentially variable connection, for governing an essentially permanent civil status situation can raise a problem of identification in the cases in which a person's domicile has changed during their life. Article 35 fully recognises this potential problem and stipulates the birth of the child as the critical time. This solution is coherent and efficient in the majority of cases. It is coherent because it does not separate the general principle from the connection with the domicile and efficient since the majority of the problems related to the determination of the legal parentage of the physical persons are raised at the time of the birth or at a time immediately after this: in other words, in most cases at the time of the registration of the new born baby and their legal parentage. The connection of birth and legal parentage is a constant option in comparative law.

277. However, two observations regarding this option must be made. Firstly, while an adult physical person's domicile can easily be identified by the habitual residence - which is the place where a person has their principal residence and materialises through the existence of stable and durable connections373 - these details of long-lasting connection and habitual residence cannot be exploited in the case of recently new born babies who, by definition, have just been born. Article 5 of the present Law refers to personal, domestic and professional circumstances. Clearly, the habitual residence of recently new born babies cannot ignore their parents' habitual residence, including their will regarding the determination of the child's future domicile. The regulatory options made by the Law mean that, in any case, the child's domicile is assessed and given concrete form as the child's private domicile and not as a dependent domicile or legal domicile374.

278. Secondly, although the birth is actually the most favourable time for determining natural legal parentage, it is not always so: the vicissitudes of the determination of legal parentage can be prolonged throughout a person's entire life, either by the search for the proof of legal parentage still to be determined, through corresponding legal parentage proceedings, either through an action for annulment of parentage that does not reflect the reality, through corresponding actions to challenge legal parentage, or through mixed actions encompassing both claims successively.

If the child's domicile at the time of the birth is different from their domicile at the time of lodging the corresponding action, reasonable doubt might arise regarding the relevance of the law of the domicile at the time of the action. This time serves to determine the international jurisdiction for hearing the action, which among other things is based on the child's habitual residence in the Caribbean at the time of filing the action. A correlation between forum and ius (application of Caribbean law by Caribbean courts) must be seriously considered. Article 35.2 of the Law does not derogate radically from the rule established in its paragraph one, but tempers this and makes it more flexible by permitting that in these cases of a change of connecting factor the applicable law is either the law of the child's domicile at the time of the birth, or the law of their habitual residence at the time of filing the action, if this is more favourable. The introduction of a factor favourable to the child regarding legal parentage for the cases of a change of connecting factor includes the search for a tangible result, which will not always be easy to determine375. The favor filii, the protection of the child regarding legal parentage, can be interpreted both as a desire to establish legal parentage, which is formally lacking, consolidate the legal parentage established or, simply, demonstrate that what has been established does not reflect the biological reality. And the interests in each of these cases can be compared. Without calling into question its generally accepted validity, which is the favor filii, one may indeed wonder how to determine what law is more favourable to the child? Without doubt the rule is geared towards the child themselves - or their representatives - who are going to evaluate its tangible result. In some cases, this will be easy: in the case of paternity actions brought by the child and for one of the laws the deadline for filing the action has lapsed or expired, as the case may be, and not for the other law, it is clear that the law a priori more favourable to the child will be the second law. If, on the other hand, this is an action to challenge the legal parentage also by the child, the applicable law will be the law that for the most part will enable the successful outcome of the action. In practice, other less clear-cut situations will have to be resolved, such as, for example, in the case of an action to challenge paternal filiation brought by the legal father.

279. In addition to these contentious situations, there are also traditionally less problematic situations, but which in some way depart from the legally required conditions and for which the proof of the legal parentage is its voluntary recognition. In these cases, the present provision has opted for a solution clearly favourable to the validity of the voluntary recognition of paternity or maternity by adhering to the laws of the child's domicile at the time of the birth or at the time when the recognition arises, the law of the domicile or the law of the nationality of the person carrying out the recognition in such a way that for the recognition to be valid under any of these laws it will be sufficient for this to be considered as such.

280. It should be taken into account in all of these cases of determination of legal parentage that there are rational limits to the substantial objectives of paragraphs two and three of article 35, since the establishment of legal parentage that will conflict with other already determined legal parentage without the prior challenge to the latter will very probably raise public policy issues. Thus, a voluntary recognition of paternity considered valid by one of the four possible applicable laws considered under article 35.3 of the Law does not appear to be compatible with a paternal legal parentage in effect and that will currently unsatisfactorily be challenged.

281. The scope of application of the rule must be considered broadly, covering not only the possible forms of proof of natural legal parentage (maternity resulting directly from childbirth, maternity by recognition, presumptions of paternity of the mother's husband or of third parties, recognition of paternity, legitimation of legal parentage by subsequent marriage of the parents, any type of legal parentage actions, etc.) but also all aspects related to this that can have a substantive, procedural or mixed nature: deadlines for filing legal parentage actions and the nature of these, the type of proof admitted in these actions, presumptions connected to legal parentage, active and passive legitimation in legal parentage actions, etc.

Commentary

Article 36

Adoption of minors

Caribbean law shall apply to the adoption of a minor granted by a Caribbean authority. However, the requirements related to the necessary consents and authorisations required by the national law or the law of the habitual residence of the adopter or child being adopted must be taken into account.

282. This article establishes a simple and efficient solution regarding the law applicable to international adoption376. It is simple since it provides that it will be the competent authority itself that will determine that law to be applied, which not only eliminates the significant problem of the knowledge and proof of foreign law as well as the demand for this to be applied377, but which includes a higher quality legal solution. In addition, the rule distinguishes between the adoption of minors and the adoption of adults. Two types of adoption have very different characteristics and interests and must also be given a different legal response.

It is important to emphasise that the article refers only to the granting of the adoption by a Caribbean authority. This provision does not consider other aspects, such as international cooperation concerning the adoption of children or the requirements for the recognition of adoptions occurring abroad. In the countries of the OHADAC zone, implementation of the Hague Convention, of 29 May 1993, on Protection of Children and Co-Operation in Respect of Intercountry Adoption, has been disparate. Nine countries (Belize, Colombia, Costa Rica, Cuba, Dominican Republic, Haiti, Mexico, Panama and Venezuela) are States party to this convention, the most important convention on cooperation and the international adoption of minors378. It is important to note in any case that this convention applies exclusively between the States party and does not contain any rule on the determination of the law or laws applicable to adoptions that are granted under its purview, so that the regulation of the law applicable to international adoptions is essential both for the Caribbean States that are not parties to the said convention as well as those that are.

283. The international adoption of children has experienced a significant evolution in the past few decades both quantitatively and from a social and a legal perspective, which is more interesting to us here. In merely quantitative terms, it becomes evident that the increase of the number of international adoptions of children, i.e. those involving the transfer of an adopted minor from their country of origin to another, their host country, with their new family. This type of adoption also includes other types, in which there is not necessarily any move, but can also be categorised as international on account of the adopter and adoptee being of different nationalities, for example. Article 36 covers both groups of cases. It is important to recall that even though international adoption, in which the adopted child's habitual residence is moved from one country to another, can be granted both in the country of origin as well as in the country of reception or host country, it is common to find that the authorities of the country of origin require that the adoption be granted by its authorities before the transfer of the child.

284. This last point is closely related to the other perspective referred to in the previous paragraph: the legal perspective. International adoption has evolved from being understood as a manner of determining legal parentage to being considered as a means of protection of minors. In the cases where the adoption is a so-called plenary adoption, the adoption will put the adoptive children on an equal footing with the natural born children, which therefore constitutes a maximum degree of protection. This point (the passage from a close evaluation or an approach identified with legal parentage to one focused on the protection of the best interests of the child) has a decisive impact on the approach that needs to be followed in private international law, starting with the determination of the applicable law. If this topic is considered (merely) from the perspective of the question of legal parentage, it is wholly appropriate to have recourse to a personal law, generally that of the adopted child, in this case, regardless of whether or not that law is a foreign law: the national law or the law of the habitual residence/domicile are appropriate laws. Indeed, for governing legal parentage, the present Law opts for the law of the child's domicile. If, on the other hand, this question is addressed from the perspective of the protection of minors, the approach changes: the role of international jurisdiction increases and the role of the applicable law is related to this. This is the solution adopted by the Law. It provides a broad international jurisdiction of the Caribbean authorities for granting an adoption (when the adopter or the adoptee is Caribbean or habitually resides in the Caribbean) and, assuming a judiciarised and interventionist perspective of the adoption, provides that its own law will apply.

This combination of extensive international jurisdiction and application of Caribbean law is clear, predictable and respectful of the protection of the minor, but can lead to potentially limping and unsatisfactory situations from the perspective of the international strength of the adoption granted by a Caribbean authority. Indeed, the granting of an adoption regarding a minor who does not reside in the Caribbean, even though this scenario very rarely occurs in practice, is theoretically considered by the solutions of the law: it is sufficient that the adopter or the adoptee have Caribbean nationality or that the adopter has their habitual residence in the Caribbean, whatever their nationality. This type of adoption may be more or less connected with the Caribbean: for example, it will not be the same if the non-resident minor is a national of the State where the granting of the adoption is or, on the contrary, is not sought. In any event, and to varying degrees, depending on the proximity of the adoption with the Caribbean, these adoptions run the risk of not being valid beyond the country where they were granted. To avoid this undesired result, the second provision of article 36 provides: “However, the requirements related to the necessary consents and authorisations required by the national law or the law of the habitual residence of the adopter or child being adopted must be taken into account”.

The second provision of article 36 intervenes to safeguard the international validity of the adoption granted in the Caribbean, by introducing a requirement to take into account necessary authorisations and consents in these other countries. Although the drafting may appear tepid due to its use of the phrase “take into account”, instead of, for example, “obtain”, “require”, “apply” or other similar terms, the fact remains that their correct use is sufficient guarantee of a completely valid adoption in all of the countries actually connected with it. On the one hand, the provision has an imperative focus (“must be taken into account”) and is not merely optional (“may take into account”379). On the other hand, the conditions required here have been considered to be fundamental in any adoption process, up to the point that one of few imperative rules of the cited Hague Convention is apparent. Article 4 of this Convention makes the adoption subject to the existence of truly free and informed consent and the authorisations necessary for the adoption to be clean and internationally valid being obtained380. Ultimately, “take into account” makes available to the Caribbean authority a necessary instrument of flexibility, which requires them to consider and make a decision on a case-by-case basis and in the light of the circumstances of each case, which can be very different in the light of the circumstances in each case. It is a mode of action particularly well suited to the protection of minors, where the best interests of the child must prevail over any other interest. A more formal provision (v.gr., “apply”) would make it extremely difficult to grant an international adoption, for it would imperatively have to compile the consents and authorisations of all of the laws involved into a kind of complex minute legal mosaic.

Commentary

Article 37

Adoption of legal adults

The adoption of a legal adult shall be governed by the law of their domicile at the time of the granting.

285. Article 37 establishes the law applicable to the adoption of legal adults with a different philosophy, closer to that of the determination of legal parentage than adoptive legal parentage. The law of the habitual residence of the person adopting the legal adult will apply. The caution regarding the formation of an internationally valid adoption, by taking into consideration authorisations and consents of other laws, is not considered to be necessary in this case, where no party worthy of special protection is involved.

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