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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 45

Autonomy of the will

1. The contract shall be governed by the law chosen by the parties. The parties' agreement on this choice must be express or, in the absence of such agreement, the choice of law must be clearly deducible from the conduct of the parties and the clauses of the contract, considered as a whole. This choice of law may relate to all or merely one part of the contract.

The choice of a particular court by the parties does not necessarily imply the choice of the applicable law.

2. The parties may agree at any time that the contract, in whole or in part, is submitted to a different law to the one it is was governed by previously, regardless of whether the previous law was applicable by virtue of a previous choice of law or by virtue of a different provisions of the present Law. The change of the applicable law shall not affect the rights of third parties.

313. The power of the parties to an international contract to choose the legal system which will govern the contract constitutes a principle recognised in practically every system of private international law, known as “freedom of choice of law”422. This notion includes the parties' freedom to configure their private relations freely and under their own responsibility. However, the extent of the freedom of choice of law in the systems of private international law of Latin America and even the Caribbean continues to be a controversial topic due to the fact that in certain cases it is connected to the specific consideration of the common law model on this issue423.

The most important manifestation of private autonomy is the freedom of contract, which grants to parties the right to decide by themselves whether or not a contract must be concluded, and with whom it must be concluded (freedom to draw up contracts), and what content the contract must have (freedom of design). In addition to this, thirdly, is the freedom of form, that is to say, the absence of obligation to conclude a contract in writing or in any other form.

The freedom of choice of law grants to the parties to a contract the freedom of choice of the law. As a result, the parties can decide by themselves to what law they are going to submit the legal relationship existing between them424. This free choice of the law in the sphere of positive law is exclusively authorised in the law of each State, and in does not results automatically from a principle of personal freedom, regardless of the form in which it is designed; as a result, it is the conflict rules of the forum and not the parties which determine the connecting factors of the contract with a particular legal system425. That said, there is no doubt that the idea of the contract is consistent with the fact that it is the parties themselves who decide how they wish to defend and balance out their interests. Hence, the freedom of choice of law is not merely a prolongation of private autonomy, but the very expression of an idea of autonomy and freedom beyond the positive law426. The freedom of choice of law is essentially justified, on the one hand, in the obtainment of a high degree of legal certainty, secondly, in the reinforcement of the principle of equality so that the parties adapt to the law in cross-border relations and, finally, in the principle of predictability of the applicable legal system427.

314. The autonomy of the will is also the main criterion for determining the law applicable to this matter in the Inter-American Convention on the Law Applicable to International Contracts, of 17 March 1994, signed in Mexico DF on 17 March 1994 in the Fifth Inter-American Specialised Conference on Private International Law (CIDIP-V). The Inter-American Convention was developed based on the experience of the Rome Convention of 1980, from which it deliberately distanced itself at least partially in some aspects, specifically in relation to the determination of the law applicable to the contract in the absence of the choice by the parties428. Although, conditioned by its limited acceptance, the Inter-American Convention has exercised much less influence than the Rome Convention on the legislators of other areas of the world, it is a compulsory reference point in America.

Indeed, the issue of the “international contract” was included for the first time in the agenda of the CIDIP-IV, which was implemented in 1989. The Conference established a series of basic criteria related to the applicable law concerning international contracts. After the discussion centred around the coexistence of a “regional” convention following the parameters of the Rome Convention of 1980 or the active and uniform participation of Latin American countries in the development of an instrument of universal unification adopted by an international body or in other initiatives, such as those put in practice by the Unidroit. Despite this absence of consensus, the Inter-American Legal Committee has adopted a regional solution and, in order to limit the focus to the issue of applicable law, has entrusted to the prestigious Mexican jurist, José Luis Siqueiros, the task of drawing up a preliminary draft bill of the Inter-American Convention on the Law Applicable to International Contracts, which was approved in 1991. Then the Inter-American Legal Committee, at the request of the Permanent Council, in 1993, drew up Draft Rules for the Regulation of International Legal Instruments, which was followed by a meeting of experts, concluded in the city of Tucson, Arizona, United States, in 1993. Here, the presence of the Professor F. Juenger of the University of California-Davis was decisive; and this presence justifies the distancing of the Mexico Convention from the Rome Convention, whose solutions were highly deficient in the opinion of the professor. In his opinion, the European authors, falling victim to the contemporary culture regarding the conflict of laws, was based on a vague principle (application of the law of the State with which the contract is “more closely connected”), which was completely unsatisfactory. As a result, the scales tipped in favour of the convenience of transferring to the judge, in the absence of choice by the parties, the task of locating the legal system more closely connected with the contract, enabling them to resolve the issue of applicable law on a case-by-case basis. The result was a new draft of the Convention on the Law Applicable to International Contracts, which was submitted as main working document to the deliberations of CIDIP-V, and which as a result gave rise to the Mexico Convention of 1994. However, the success of the Convention lies in its acceptance by the States that have participated in its drafting. Undoubtedly, the Convention has had greater success in academic forums. It is sufficient to point out that only five States have signed it (Bolivia, Brazil, Mexico, Uruguay and Venezuela) and that only two of these ratified it (Mexico and Venezuela). Thus, the text is in force in two countries (for its entry into force, only two ratifications were required).

315. The present article follows articles 7 and 8 of the Mexico Convention. The choice of the applicable law by the parties is an instrument which provides certainty and predictability. It takes into account the interests of the parties, for example, by providing them with the possibility to choose the legal system that they consider most appropriate for the content of their contract, due to its neutral character or on account of being useful for unifying the different contractual regimes. The principle of autonomy of the will in the determination of the law of the contract -freedom of choice of law - is included in section 1 of article 45 of the Model Law. This rule, which is also in line with the content of the Rome I Regulation, establishes a very liberal system of conditions for the exercise of the freedom of choice of law. Thus, it makes it possible for the choice to be made expressly as well as tacitly. Significant indications for determining a possible tacit choice are - and indeed these will have to be evaluated in the light of all of the circumstances - repeated references to specific provisions of a single legal system included in the content of the contract, as well as, in the event of a dispute, that the application and the challenge appear to be exclusively based on the law of a particular country, since the choice of the law of the contract by the parties can be made at any time. By itself, the mere designation in the contract of the courts of a country as having jurisdiction for hearing the disputes arising from the contract does not imply a tacit choice of the law of that country, even though it is one of the factors that must be taken into account when determining if the choice of the law can be clearly deduced from the terms of the contract. Furthermore, article 45 does not require the legal system chosen to be connected with the legal relationship established by the contract.

316. With regard to the time of the choice of the applicable law, article 45 considers the possibility for the parties to choose the applicable law at a later - or earlier - time than the conclusion of the contract, as well as for them to modify the legal system designated. In any case, the modification of the applicable law cannot affect the rights of third parties.

Furthermore, article 45 permits the parties to make a partial choice of applicable law, since the law that is chosen can govern “all or merely one part of the contract”. For the partial choice to be possible, there must be a reference to the part of the contract that is separable from the remainder.

Commentary

Article 46

Determination of the applicable law in the absence of choice of law

1. If the parties have not chosen an applicable law, or if their choice is invalid, the law applicable to the contract shall be determined by the following provisions:

  1. the contract for the sale of goods shall be governed by the law of the country where the vendor has their habitual residence;
  2. the contract for the sale of property by auction shall be governed by the law of the country where the auction takes place, if this place can be determined;
  3. the contract for the performance of services shall be governed by the law of the country where the service provider has their habitual residence;
  4. the contract relating to a right in rem in real estate property or the lease of real estate property shall be governed by the law of the country where the real estate property is located;
  5. the contract for distribution shall be governed by the law of the country where the distributor has their habitual residence;
  6. the franchise contract shall be governed by the law of the country where the franchisee has their habitual residence;
  7. the contract mainly relating to the exploitation of industrial or intellectual property rights shall be governed by the law of the country where the rights are exploited if these rights are related to a single country; if they are related to more than one country, the law of the habitual residence of the rights holder shall apply.

2. If the contract is different from the contracts enumerated in the preceding paragraph, the applicable law shall be the law of the country where the party which must provide the characteristic performance of the contract have their habitual residence.

3. If it is clearly deducible from all of the circumstances that the contract has manifestly closer connections with a country other than the country indicated in paragraphs 1 or 2, the law of this other country shall apply.

4. If the applicable law cannot be determined in accordance with paragraphs 1 or 2, the contract shall be governed by the law of the country with which it has closer connections.

317. This provision concerns the general regime for determining the law applicable to the contracts in the absence of a choice of law by the parties429. Only certain categories of contracts for which a special regime is provided remain on the fringes, as is the case of the consumer contracts and individual employment contracts. The content of its rules largely corresponds to the model of article 4 of the Rome I Regulation, at the time directly inspired by its equivalent, the Rome Convention of 1968, thus in the drafting of the Regulation, important changes were introduced in order to try to overcome the principal difficulties observed in the application of the article of the Convention and eliminate doubts regarding the operation of the provisions430.

The basic principle for determining the applicable law is the so-called principle of proximity, which is based on the application of the law of the country with which the contract has the closer connections. It is a principle characterised by its flexibility, since it generally leaves a wide margin of discretion for determining to which the country the contract is connected, in light of the circumstances of each case. This flexibility can, however, hinder the realisation of the general objective of providing legal certainty. The concept of closer connections cannot be understood to refer to strictly geographical proximity: “residence of the parties”, “place where the contract was concluded”, “place where the contract was executed”, “place where the property or the rights under the contract are located”, “market affected by the contract”. Each one of these connecting factors does not have any value in itself or general scope; its weight depends on the extent of the legal and economic connection that it has regarding a particular contract, which is why their influence varies, depending on the type of contract and its nature. The most important aspect is not the geographical situation, but the degree to which this connection corresponds to the requirements of economic efficiency, legal certainty and predictability for the parties concerning the economic and legal purpose of a particular contract. For example, the conclusion of a contract is an element to be taken into account in relation to the contracts with a consumer431.

318. Article 9 of the Inter-American Convention of Mexico corresponds to article 4 of the Rome I Regulation. Despite adopting the same starting point, the Inter-American Convention is based on a much more flexible focus than the European model regarding the determination of the country with which contract has closer connections - far from the prevalent focus in the countries of Latin America. The Mexico Convention opted not to establish any rules to specify the principle of proximity, limiting itself to provide that: “The court shall take into account the objective and subjective elements that are deducible from the contract for determining the law of the State with which it has closer connections. It will also take into account the general principles of international commercial law accepted by international bodies”.

This formulation of the Inter-American Convention supports a critical assessment inasmuch as it facilitates the determination of the applicable law by the judges (for example, the UNIDROIT Principles do not comprise any rule on the determination of the law of the contract). The inclusion of this principle is the product of the acceptance of an approach opposed to the utilisation of the conflict of laws technique for determining the legal regime of international contracts. While paragraph 1 of this article provides for the use of the conflict of laws technique, by establishing the application of the law of the State with which the contract has the closer connections, paragraph 2 (instead of providing criteria with a view to guiding the courts in the determination of the law of the contract) takes into consideration the usages of international trade in one phase (the phase related to the specification of the applicable national legal system) in which they have practically nothing to provide. It is important to distinguish, on the one hand, the fact that the (national) law of the contract has limited practical importance, including before the national courts, and that the international rules have growing importance in the substantive legal system of international contracts, and, on the other hand, the fact that this type of rules provide solutions when comes to determining the (national) law applicable to the contract in the absence of choice of law by the parties.

Compared to the model of the Inter-American Convention, article 4 of the Rome I Regulation, as demonstrated in particular by the innovations introduced in its paragraphs 1 and 3, has preferred to reinforce the search for legal certainty in application of the criterion of the closer connections, with the objective of favouring the uniform application of its rules in all of the member States and provide greater predictability to the legal system of international contracts.

319. Article 46 of the Model Law establishes in its paragraph 1 a list of the contractual types for which it specifies the applicable law in terms of the place of the habitual residence of one of the parties to the contract or the place in which the element considered to be the determining criterion of the contract is located. This option seeks to provide greater predictability in comparison with the system of the Rome Convention, whose paragraph 1 restricted itself to establishing as a general criterion that the applicable law is the law of the country with which the contract has closer connections.

If the contract whose law has to be determined belongs to one of the categories referred to it paragraph 1 of article 46, the country whose law will be applicable will in principle be determined precisely pursuant to the rules contained in that paragraph. For example, if this concerns a contract for the sale of goods, the applicable law will be the law of the country where the vendor has their habitual residence. To satisfy the function of providing legal certainty, article 46 incorporates a broad list of categories of contracts, which includes some categories not included in the Rome I Regulation, with the objective of providing a more elaborate and precise regime. This occurs in particular regarding the inclusion of a specific provision related to the contracts principally relating to the exploitation of industrial or intellectual property rights.

320. The characteristic performance needs to be made clear only for the contracts that are not included in the categories of paragraph 1 or for those no solution is provided since they combine elements of more than one of these categories. With regard to these contracts, paragraph 2 establishes that the applicable law will be the law of the country of the habitual residence of the party that has to carry out the characteristic performance of the contract. The technique of the characteristic performance refers to contracts for which the consideration of one of the parties to the contract consists exclusively in the payment of the price; in such cases, the characteristic performance will be the performance by which the payment is owed, for it differs from other types of contract, for it determines the essence of the contract and is subject to a more elaborate regulation. The characteristic performance plays a smaller role than in the Rome Convention, since it is only needs to be determined if the contract is not included in any of the categories of contracts mentioned in paragraph 1.

Furthermore, paragraph 3 includes an exception or correction clause, by virtue of which the law included in paragraphs 1 or 2, that is to say stipulated for each type of contract included, or, in its absence, the law of the domicile of the characteristic supplier, will not apply if it becomes obvious from all of the circumstances that the contract has clearly closer connections with a country other than the one indicated in these paragraphs. In accordance with this rule, the principle of the very close connections has a corrective function in the application of the rules of paragraphs 1 and 2. In order to reinforce legal certainty in the determination of the applicable law, the escape clause, in line with article 4 of the Rome I Regulation, is drafted in such a way to make it clear that it must operate only in exceptional cases, due to the requirement that the closer connection must be obvious and clearly result from the contract.

321. Finally, paragraph 4 establishes a closeout solution, conceived only for the cases in which the contract cannot be classified as one of the types specified in paragraph 1 and, in addition, the country of the habitual residence of the party that has to carry out the characteristic performance cannot be determined. Certainly, at times, the determination of the characteristic performance can be impossible. The paradigmatic situations are those - such as the swap - where the contracting parties exchange identical services, without either one of them taking the legal form of remuneration.

In this type of situations, paragraph 4 provides that the applicable law must be determined depending on the criterion of proximity, and establishes that the applicable law will be the law of the country with which the contract has the closer connections. If this is not specified, it will be necessary to carry out a specific analysis of the circumstances of the case. The nature, content and design of the contract must be the point of departure in the search for the more closely connected country. The Preamble to the Rome I Regulation provides the required specifications that this country has to take into account for determining, among other things, if the contract has a closer connection with other contract or contracts432.

Commentary

Article 47

Employment contracts

1. The law applicable to individual employment contract shall be law chosen by the parties in conformity with article 45, which shall only apply insofar as it does not diminish the standards of protection of the work provided by the applicable law established in conformity with the following paragraph.

2. Employment contracts shall be governed by the law of the country where the work is usually carried out, unless it is obvious from all of the circumstances that the contract has closer connections with another country.

3. If the place where the work is usually carried out cannot be determined, the applicable law shall be the law of the country that has closer connections with the contract.

322. The inclusion of specific rules relating to applicable law for individual employment contracts responds to the need to protect the worker as the weak party of this type of contractual relations. The article has a clearly protective purpose, by introducing significant substantive limitations to the possibility of choosing the applicable law433. This is not ruled out, but is only lawful to the extent that the law chosen, imposed by the employer as the strong party, will only be applicable if it is favourable to the worker. The formula used for obtaining the application of the law chosen, as the more favourable law to the worker, consists in predicting the application of the mandatory provisions for protection of the law that would be applicable in the absence of choice of law (paragraph 1). In this case, the concept of mandatory provisions for the protection of the worker includes the merely mandatory rules, which cannot be derogated by contract, and consequently the choice of a different law can only lead to a legal regime more favourable for the worker and never to a less favourable one. In this sense, it is worth recalling that the content of the collective agreements form an integral part of the law applicable to the individual employment contract.

By comparison, the more elaborate and influential model in this regard is found in the European Union in article 8 of the Rome I Regulation, which corresponds to article 6 of the Rome Convention of 1980.

Based on this model, article 48 applies the general regime for determining the law applicable to international contracts established in articles 45 and 46 to individual employment contracts. The article's ultimate purpose is the protection of the worker, by introducing significant substantive limitations to the possibility of choosing the applicable law. This is not ruled out, but is only lawful to the extent that the law chosen, imposed by the employer as the strong party, will only be applicable if it is favourable to the worker. The formula used for obtaining the application of the law chosen, as the more favourable law to the worker, consists in predicting the application of the mandatory provisions for protection of the law that would be applicable in the absence of choice of law (article 69). As a result, the choice of a different law can only lead to a legal regime more favourable for the worker and never to a less favourable one. In this sense, it is worth recalling that the content of the collective agreements form an integral part of the law applicable to the individual employment contract.

The law designated in the absence of a choice of law has a twofold function. In itself, it designates the law applicable to the employment contract without choice of the applicable law. Indirectly, it determines the minimum protection framework of the worker which cannot be derogated by the rules established in the choice of the law.

323. The determination of the applicable law needs to distinguish between two hypothetical cases. In the first case, if the worker usually performs their work in a country, even if they have temporarily performed their work in a different place, the law of the place where the work is performed will apply. This place, therefore, is interpreted as the principal place of performance of the worker. Equivalence is achieved between jurisdiction and applicable law. Secondly, if the habitual place of performance is understood as the “destination” of the work performance, it cannot be determined. The connection can exist by taking into account the “origin” of the performance, namely, the place from where the worker has usually performed their work, as is the case of airline crews and other workers434.

324. Consequently, although article 47 admits the possibility of choice of the applicable law in individual employment contracts, it does this by imposing significant restrictions to this possibility. In particular, the law chosen by the parties will only apply to the extent that this does not diminish the standards of protection of the worker established in the law applicable in the absence of a choice of law.

It is a criterion which, in order to satisfy the substantive objective, namely to ensure adequate protection to workers, imposes the requirement to assess the content of two legal systems, in such a way that the law chosen by the parties will only be applicable if it is more favourable for the worker. Consequently, the rules on the determination of the law applicable in the absence of a choice of law are determining factors for the contracts referring to a legal system that establishes the minimum standard of protection favourable for the worker.

325. The rules on the determination of the applicable law in the absence of a choice of law are based on the distinction between two types of situations. In the cases in which it is necessary to identify a country in which the work is usually performed, it will be this element that is used for locating the relationship for the purpose of determining the applicable law. This criterion must be the main criterion in accordance with the principle of proximity. In conformity with paragraph 3, when the place where the work is traditionally performed cannot be determined, the law applicable will be the law of the country that has the closer connections with the contract.

The place of performance of the work has is a pre-eminent connecting factor in this article, and consequently this must be interpreted broadly and in the light of all of the circumstances, which does not make it easier to determine the place of performance of the work, including when this is usually carried out in more than one place. In addition, an exception clause is incorporated, which leads to the application of other legal system if it emerges from all of the circumstances that the contract has closer connections with another country. Despite the objective of protection of the worker inherent to the special rule concerning individual employment contracts, the operation of the exception clause will be regardless of substantive requirements. Certainly, that clause is based on reasons of proximity, and consequently, this does not guarantee that its application leads to the application of the more favourable law for the worker.

326. As regards the interaction between the priority connection namely the habitual workplace and the exception clause, which provides for the application of the law of another country if it emerges from all of the circumstances that the contract has closer connections with this other country, it should be pointed out that unlike the exception clause included in the general provision on the law applicable to the contracts, the clause introduced in this article concerning individual employment contracts does not incorporate in its text the word “manifestly”.

As was highlighted in the interpretation of the Rome I Regulation, this difference is connected with the fact that the rules on the employment contract were simultaneously inspired by the idea of proximity and the idea of protection of the worker, in such a way that there is no completely neutral conflict rule which fundamentally pursues an objective of predictability and legal certainty. Among the significant connecting factors that can be relevant for determining what country has the closer connection with the employment contract, and for specifying whether the exception clause must be operated, the country in which the worker pays the taxes on the income from their activity on behalf of another and in which they are registered for social security should be specified.

Commentary

Article 48

Contracts concluded by consumers

1. Contracts concluded between a consumer and a professional or contractor, who, by any means, direct their commercial activities towards the country of the consumer's habitual residence, and falling within the context of those activities, shall be bound by the following provisions.

2. The choice of the law applicable to such contracts by the parties may not diminish the standards of protection of the consumer provided in the law of the consumer's habitual residence.

3. The law applicable to the contract in the absence of a choice of law in accordance with article 45, shall be the law of the country in which the consumer has their habitual residence.

4. The rules contained in the above paragraphs shall apply to insurance contracts.

327. For the consumer contracts which satisfy the conditions that determine the application of the special regime, article 48 is inspired by the model of article 6 of the Rome I Regulation. Thus, unlike the regime applicable to contracts in general, in accordance with paragraph 3, the law applicable in the absence of choice of law will be the law of the country in which the consumer has their habitual residence435. Furthermore, although it is admitted that the parties can choose the applicable law, this choice cannot diminish the protection provided to them by the mandatory rules of the country of the consumer's habitual residence.

The solution proposed corresponds to a model based on respect for the standard of protection of the regulation on consumer protection in the country of the consumer's domicile in international contracts, in which the consumers are captured in their domestic market. The increase in recourse to that criterion may be explained, among other things, for economic reasons. Indeed, it is traditionally considered that the consumers only occasionally act in an international transaction while the professionals usually do. It is thus logical that they should assume the costs related to the verification of the content of the foreign legislation. It has been stressed that, contrary to the idea traditionally defended by the industry, the solutions of private international law based on the application of the law of the consumer's domicile (whether or not combined with the possibility of choosing another country's law as the applicable law as long as this does not diminish the rights attributed to the consumer by the law of their domicile) are the solutions which contribute to a greater extent to the development or cross-border electronic trade.

328. The protective regime established by this rule only operates if the professional or the contractor carries out commercial or professional activities in the member State of the consumer's domicile, or if, by any means, directs their activities to this State and the contract was established in the framework of these activities. This paragraph is specifically intended to provide a response to the requirements of Internet commerce, but the interpretation of this rule, as demonstrated by the European practice, can be complex.

It follows from the text of the rule that the protective regime is applicable to the consumer contracts concluded through active websites that direct their activities to the State of the consumer's domicile to the extent that a contract has been concluded with this consumer through this site. On the other hand, it appears clear that the mere fact that the merchant's web pages are accessible from the State of the consumer's domicile is not sufficient, in the light of the present text, to guarantee the protection of the consumer.

329. In the framework of article 48, including in the international consumer contracts to which the protective rule is applied, the parties are in principle free to choose the law of the contract, although the law chosen is only applied to the extent that its content does not deprive the consumer of the protection ensured by the mandatory provisions of the law of the country in which they have their habitual residence. Consequently, the possibility for the parties to choose any law as the law of the contract must be affirmed.

A complete exclusion of the freedom of choice of law for this type of contracts could prove to be counterproductive, since this would oblige professionals to pay renewed attention to the clauses of their contracts and the insertion - so frequent in practice - of a clause on the applicable law would not permit a homogenisation of the contracts. Indeed, this would not be valid even regarding the aspects that remain outside of the scope of the mandatory rules of protection of the consumers. Furthermore, the exclusion of the possibility of choosing the applicable law in practice could have a negative impact on the position of the consumer, since the law chosen in the context of the solution adopted here can only be operated to the extent that it provides a protection more favourable for the consumer.

Commentary

Article 49

Scope of the applicable law

The law applicable to the contract pursuant to the provisions in the preceding article includes in particular:

  1. their interpretation;
  2. the rights and the obligations of the parties;
  3. the performance of the obligations established by the contract and the consequences of non-performance of the contract, including assessment of injury to the extent that this may determine payment of compensation;
  4. the various ways of extinguishing obligations, and prescription and limitation of actions;
  5. the consequences of nullity or invalidity of the contract;
  6. the acquisition and loss inter partes of a right in rem real in the terms of article 58.2.

330. This rule determines all of the matters governed by the law applicable to the contract and is inspired by the provisions of article 12 of the Rome I Regulation. A similar rule is found in article 14 of the Inter-American Convention on the Law Applicable to International Contracts, done in Mexico on 17 March 1994, in the framework of the Fifth Inter-American Specialised Conference on Private International Law (CIDIP-V), which basically reproduces the provisions in the rule on the scope of application of the law of contract in the Rome Convention of 1980 on the law applicable to contractual obligations, a forerunner of the Rome I Regulation436.

First of all, it should be pointed out that three functions are assigned to the law applicable to the contract concerning the conflict rules. Specifically, these functions are firstly, to confer binding force to the agreement and stipulate the conditions for its existence; secondly, to establish the mandatory framework of the contract, within which the autonomy of the contracting parties operates; and thirdly to provide criteria for interpretation and the supplementary regime to the contract regarding matters not provided by the parties.

331. The law of the contract has a general application, in such a way that the enumeration of matters contained in this provision is not exhaustive but merely illustrative. The lex contractus governs:

  1. The formation of the contract, its existence and its substantive validity, both at the level of breaches of consent (error, fraud, intimidation, simulation, etc.) as well as at other levels (unlawfulness of the subject matter, unlawfulness or inexistence of cause, etc.) and its nullity.
  2. The content of the contract, the obligations of each of the parties, the cases of non-fulfilment as well as their consequences, such as its possible termination, the regime of accidental elements, the effects of the contract. The article also provides that the execution of the obligations established by it, including the determination of damages, will be governed by the law of the contract and to do this it provides for the assessment of the loss to the extent that this will make it possible to determine the amount of damages. The law of the contract is the law that determines if the parties have fulfilled their obligations.
  3. The criteria for the interpretation of the contract, in addition to the supplementary regime in relation to the aspects not provided in the contract.
  4. The validity of the agreements concluded between the contractual parties (substantive autonomy), the ability to rescind contracts and the clauses or conditions that are considered null and void or deemed to be unwritten.
  5. The amendment and termination of the contract, and the conditions of its novation. This article expressly specifies that it includes the prescription and forfeiture of claims. The specific provisions regarding form and incapacity are indicated at these two points in the following articles.

332. The present provisions are not extended to other issues that might be connected to the acquisition, transfer or extinction of rights in rem, even between the parties to the contract. As a consequence, matters relating to the transfer of property in a contract for sale will be determined in accordance with the law governing the rights in rem, established in our system based on the rules provided in article 58.2 of the Law.

Commentary

Article 50

Incapacity

In contracts concluded between persons who are in the Caribbean, natural persons who have legal capacity under Caribbean law may only invoke their legal incapacity resulting from the law of another country if, at the time of conclusion of the contract, the other party to the contract had known of such incapacity or had ignored it due to negligence on its part.

333. In international situations, the capacity to enter into contract is treated differently than the other provisions of the contract. Indeed, it must comply with the private international law rules on legal capacity, which reflects the traditional consideration of this question as a matter related to persons. Thus, for example, in comparative law, it should be pointed out that paragraph 2.a) of article 1 of the Rome I Regulation expressly provides that its rules on the law applicable to contracts shall not apply in relation to the legal capacity of natural persons to enter into a contract.

334. However, in order to protect the security of legal relationships, good faith and, in particular, the reasonable expectations of persons who enter into a contract in their own market with foreigners - or with persons residing abroad - who visit this market, a specific rule has been developed, which revises the general principle in certain circumstances. This specific rule is inspired by the provisions of article 13 of the Rome I Regulation, similar to those previously established in article 11 of the Rome Convention.

This article has been drafted to protect any person who has reasonably believed in good faith that they were concluding a contract with a natural person with legal capacity and who subsequently sees the validity of the contract challenged due to this natural person's lack of legal capacity based on a lack of legal capacity unknown in the legislation of the country where the contract has been concluded. This provision permits, when certain circumstances occur, that one of the contracting parties will be able to take advantage of the other party's apparent legal capacity if they have legal capacity according to the law of the place where the contract is concluded.

For this protection mechanism to operate, essentially two assumptions are required. Firstly, the contract must have been concluded between persons who are in the same country. Secondly, the application of the special rule requires the existence of disparities between the rules relating to legal capacity in the law of the country where the contract was concluded and the law applicable to legal capacity under the private international law of the forum.

Commentary

Article 51

Form

1. A contract concluded between parties in the same State shall be valid, as regards the form, if it fulfils the requirements established in the law that governs such contract according to the preceding articles or those laid down in the law of the State where it is concluded.

2. If the persons are in different States at the time of the conclusion of the contract, this shall be valid as regards the form if it fulfils the requirements established in the law that governs the contract or those provided by the law of the place where the offer or the acceptance is made.

335. Insofar as the formal requirements, as a prerequisite of validity of certain contracts, may vary from one legal system to another, the private international law systems have developed specific rules on the law applicable to the formal validity of the contracts, in order to facilitate international relations. To do this, these rules basically admit that the international contracts are valid as regards the form provided that they fulfil the requirements in this regard of the law of the contract or of any other legal system, typically of the place where the parties make their declarations of will to enter into a transaction, which will facilitate the monitoring of the fulfilment of such requirements.

336. In accordance with its first paragraph, when the contracting parties are in the same country, the contract will be valid as regards the form if it fulfils the requirements of the law that governs it as regards the substance or the law of the country in which the contract was concluded. The applicable law as regards the substance or the law of the contract must be understood as the law that will govern the contract if this was formally valid. In accordance with the objective of ensuring the formal validity of the contracts, in the case of contracts concluded between persons who are in different countries (for these purposes, if the contract is concluded through a representative, the relevant information is where they are when entering into the contract), the second paragraph considers it to be sufficient for it to be valid as regards the form that the contract fulfils the requirements of the law of any one of those countries, or of the law of the contract, or of the law of the country where any one of the parties had their residence at that time.

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