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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 52

General rule

1. The law applicable to a non-contractual obligation arising out of a tort/delict shall be the law chosen by the perpetrator and the victim. The choice of the applicable law must be express or be evident from the circumstances of the case.

2. Failing that, the law of the country where the damage occurs shall apply, irrespective of the country in which the event giving rise to the damage occurred and irrespective of the country or countries in which the indirect consequences of that event occur; however, where the person claimed to be liable and the person sustaining damage both have their habitual residence in the same country at the time when the damage occurs, the law of that country shall apply.

3. Where it is clear from all the circumstances of the case that the tort/delict is manifestly more closely connected with a country other than that indicated in the preceding paragraphs, the law of that other country shall apply.

337. The question of the law applicable to non-contractual obligations has been a greatly discussed topic and a cause of confrontation between the Romano-Germanic and common law437 systems, which is why it is necessary to justify the option adopted in the present article: leaving aside the favourable theses for applying the lex fori to non-contractual civil liability in general438 439, and focusing on the problem of the law applicable to civil liability resulting from the offence, it has been considered, in this specific type of wrongful acts, that a significant connection exists between the penal and civil aspects, and, therefore, that the same law must be applied, the law of the forum, to both of them alike. This reasoning rests upon a conception of the wrongful civil act parallel to that of the wrongful penal act, where the element of apportionment of blame or moral reproach to the perpetrator would be decisive440. Consequently, a complete parallelism between the special application of penal and civil rules cannot be generally assumed, even if these are applied by the same jurisdiction441: the connection between the civil action and the penal action is exclusively procedural, but by no means does this imply a change in the nature of the civil action and, therefore, the application of a different law depending on whether the civil action is brought in isolation or together with a penal action would not be justified.

Different conventions applicable to certain wrongful acts exist: some of these belong to uniform substantive law and others contain bilateral conflict rules. The paradigm in this area is the Hague Conventions of 4 May 1971, on the Law Applicable to Traffic Accidents, and of 2 October 1973, on the Law Applicable to Products Liability. The countries in the OHADAC area have not adhered to these instruments, which justifies the relevance of the establishment of an ad hoc rule.

338. In line with the more advanced codifications, regarding non-contractual obligations, the parties are given the possibility of choosing the applicable law. The expansion of the freedom of choice of law in this area corresponds to the fact that, at the substantive level, non-contractual liability is typically based on the freedom of disposition of the parties. Also from the jurisdictional perspective, the parties are free to choose the competent court in this matter. In view of the significance of the freedom of choice at the substantive level and the significance of the freedom of choice of law as a mechanism for providing predictability and legal certainty to the private international relationships, it is undoubtedly justified to configure the freedom of choice as the main criterion for determining the applicable law.

In principle, the provision does not set limits concerning the law to be chosen, since it does not require that the choice must refer to the lex fori or to a legal system with which the non-contractual obligation is in some way connected. The parties are therefore free to choose the law of any country as applicable. With regard to the agreement of choice of the applicable law, the rule is limited to establishing that the choice must be express or result with reasonable certainty from the circumstances of the case.

339. Despite being configured as the main connecting factor, it is clear that, in the area of non-contractual obligations, freedom of choice of law has much less practical significance than in the area of contractual obligations, in which the existence, typically, of a previous agreement between the parties, which underlies their relationship, makes it easier for the interested parties to be able to reach an agreement concerning the law applicable to this agreement at the outset.

The admission of freedom of choice of law takes place in the scope of non-contractual obligations with certain additional limits, such as the exclusion of certain matters from freedom of choice of law, as is the case of the law applicable to liability resulting from acts of unfair competition, acts restricting competition and the breach of intellectual property rights. These are areas of the legal system in which the connecting factors used, the principle of the effects in the market and the lex loci protectionis rule are imperative, given the objectives that they pursue, the characteristics of the object being regulated and the public or collective interests involved.

340. In the absence of choice of the applicable law by the parties and each time it involves a situation not in accordance with any of the rules related to specific matters, the law applicable to a non-contractual obligation resulting from a harmful event is determined in accordance with the provisions in paragraphs 2 and 3, substantially inspired by article 4 of the Rome II Regulation, which contains the harmonised regulations in this area in the EU. In particular, paragraph 2 establishes what may be called the “general rule”. These are rules that respond to a previously well-defined guideline and structure, in the sense that they are based on the duality between the rule and its exception. It consists of three paragraphs: the first establishes as a basic criterion the application of the lex loci damni; the second introduces a differentiated treatment for the situations in which the parties have a common habitual residence; and the third contains an exception clause based on the criterion of the closer connections, which opens up the possibility of applying a law other than that designated in paragraphs 1 and 2.

In the absence of a common habitual residence, since paragraph 2 prevails when the person liable and the party sustaining loss or damage reside in the same country, the applicable laws is the law “of the country where the damage occurs, irrespective of the country in which the event giving rise to the damage occurred and irrespective of the country or countries in which the indirect consequences of that event occur”. This connecting factor aims to determine precisely the applicable law, on the one hand, in the cases in which there is a dissociation between the place of origin or the place or places where the conduct or the event which causes the damage occurs and the place where the damage occurs, and on the other hand, in the cases in which the direct damage is accompanied by other indirect or resulting damage.

341. Concerning the lex loci damni rule, the criterion of the common habitual residence prevails, since this is the applicable connecting factor when the person claimed to be liable and the person who has sustained damage have their habitual residence in the same country at the time when the damage occurs. In practice, this rule may facilitate above all the application of law of the forum in situations occurring abroad which involve various residents of the forum.

Both the law of the place where the damage occurred as well as that of the common habitual residence may be replaced by that of another country when the requirements for the operation of the correction clause of its paragraph 3 are met, in particular, when it is clear from all the circumstances that the tort/delict has manifestly closer connections with another different country. It is an exception clause, which introduces flexibility based on the principle of proximity, even though it is worded, in line with the content of the Rome II Regulation, in such a manner that gives rise to the exceptional nature of this possibility, by requiring that the connections are “manifestly” closer, which implies that the greater connection with another legal system has to be evident. The wording of the rule highlights the exceptional nature of this mechanism.

Commentary

Article 53

Liability for damage caused by defective products

1. The law applicable to a non-contractual obligation arising out of damage caused by a product shall be:

  1. the law of the country in which the person sustaining the damage had his or her habitual residence when the damage occurred, if the product was marketed in that country;
  2. failing that, the law of the country in which the product was acquired, if the product was marketed in that country;
  3. failing that, the law of the country in which the damage occurred, if the product was marketed in that country;
  4. failing that, the law of the country in which the liable party's premises are located.

2. Where it is clear from all the circumstances of the case that the tort/delict is manifestly more closely connected with a country other than that indicated in the preceding paragraph, the law of that other country shall be applied.

342. This provision incorporates a specific legal arrangement relating to the law applicable to liability for defective products, in line with the international experience which recommends specialisation in this area, as particularly illustrated in the Hague Convention on the Law Applicable to Products Liability, of 2 October 1973, drawn up in the framework of the Hague Conference, as well as article 5 of the Rome II Regulation442.

343. The system adopted is based on the establishment of a cascading series of connecting factors combined with an exception clause based on the criterion of proximity. In addition, it should be stressed that prior to the successive connections provided in this rule, the law chosen by the parties in accordance with article 52.1 will preferably be applied.

In the absence of a choice of the applicable law by the parties, article 53 firstly leads to the application of the law of the country where the person who has sustained damage had their habitual residence at the time when the damage occurred, if the product was marketed in that country. If this is not the case, the law of the country in which the product was acquired will be applied, if the product was marketed in this country. Failing that, the law of the country where the damage occurred will be applied, if the product was marketed in that country. Finally, failing that, the article provides for the application of the law of the country where the liable party's premises are located.

344. Finally, paragraph 2 includes a correction clause, under which, if it is clear from all the circumstances that the harmful event has manifestly closer connections with a country other than that indicated in the rules of paragraph 1, the law of this other country will apply.

Commentary

Article 54

Unfair competition and acts restricting free competition

1. The law applicable to a non-contractual obligation arising out of an act of unfair competition shall be the law of the country where competitive relations or the collective interests of consumers are, or are likely to be, affected.

2. The law applicable to a non-contractual obligation arising out of a restriction of competition shall be the law of the country where the market is, or is likely to be, affected.

3. The acts of unfair competition that affect exclusively the interests of a specific competitor shall be governed by the general rule of article 52.

4. It shall only be possible to choose the applicable law in accordance with article 52.1 in relation to the economic consequences for the parties arising out of these non-contractual obligations.

345. These provisions are based on the application of the so-called criterion of the effects on acts of competition and, in particular, on non-contractual liability arising out of this, which has been linked to the appearance of specific rules on the applicable law for the practices of unfair competition and acts restricting competition, which are different from the general rule on the law applicable to non-contractual obligations, which clarifies what is the law applicable to these cases, as particularly reflected in article 6 of the Rome II Regulation.

This evolution corresponds to the function of the legislation on unfair competition and on acts restricting competition, which is different from that which characterises the entire non-contractual civil liability, focusing on individual reparation for damage sustained. Concerning unfair competition, the protection of the collective interests of the market participants (including consumers) as well as the general interests in a unitary planning and in its good functioning are key factors443.

346. Therefore, the market constitutes a determining element for identifying the country whose legislation on unfair competition and on acts restricting competition is applicable. The application of the law of the market in which the competitors act for attracting clients is appropriate for the expectations of any persons who have sustained damage, whilst guaranteeing the equal treatment between the economic agents of each market. The basic principles of the criterion of effects in the market include the principle of seamless protection of the consumers in the national market as well as the guarantee of equal conditions of competition in that market, which is related to what has traditionally been assigned an imperative nature.

Under article 54 of this Model Law, similar to the solution reached in the framework of the EU in article 6 Rome II Regulation, the law applicable to a non-contractual obligation resulting from an act of unfair competition is that of the country in whose territory the competitive relations or the collective interests of the consumers are or may be affected. In the same vein, the law applicable to a non-contractual obligation resulting from a restriction of the competition will be the law of the country where the market is or may be affected.

347. The law applicable to unfair competition and to acts restricting competition governs the cases and consequences of illegal competitive practices. The law of the affected market generally determines if an illegal competitive practice exists and what are its consequences. It includes: unlawful practices; the cases of liability and their extent; the determination of the liable persons; the causes of exoneration, limitation and extinction of liability; the existence and evaluation of compensable damage; as well as the classes of actions that may be brought against the acts of unfair competition and illegal advertising and the cases in which they are brought.

When the dispute concerns the breach of regulations of unfair competition principally intended to protect the position of the competitors (acts of defamation, imitation, exploitation of the reputation of another, and inducement of breach of contract), the relevant market tends to be the one in which the competitors' interests come into conflict, typically the market in which the products or services were advertised or marketed through the unfair practices. Also, when the unfair practices fundamentally affect the general interest in the correct functioning of the market (as in the cases of discrimination or sales at a loss) this must be specified with a focus on the market towards which the competing practices in question are oriented.

348. Paragraph 3 introduces a specific treatment with regard to the law applicable to acts of unfair competition that exclusively affect one competitor's interests in particular, considering that in those cases the essential aspect of the conduct is its impact on the relations between the parties involved and especially on the position of the person who has sustained damage. Acts of unfair competition not oriented towards the market but focusing on one competitor's domestic sphere are typically acts in breach of secrecy and inducement of breach of contract, including the acts of disruption of a rival company through the unlawful recruitment of their workers. The special rule provides that in these cases the criterion of effects will not be applied but the general regulation on the law applicable to non-contractual obligations. The applicable law will be the law of the place where the damage occurred, even though if the person liable and victim have their residence in the same country the applicable law will be that of their common habitual residence, and in addition, the law of another country with which the situation is manifestly more connected may be applied.

In addition, the proposed solution, deviating from the solution adopted in the framework of the Rome II Regulation, affirms in its paragraph 4 the possibility that in these cases the freedom of choice of law operates with regard to the consequences on the property between the parties, based on the provisions in article 52.1.

Commentary

Article 55

Environmental damage

The liability for environmental damage shall be governed, at the choice of the victim, by the law of the place in which the damage occurred or of the place in which the event giving rise to the damage occurred.

349. This provision contains a particular rule on the law applicable to non-contractual obligation resulting from environmental damage, inspired by the rule on the matter of the Rome II Regulation, which constitutes a very advanced model in this area. By environmental damage in the Rome II Regulation, according to recital 24 of its preamble, should be understood as meaning the adverse change in a natural resource, such as water, land or air, impairment of a function performed by that resource for the benefit of another natural resource or prejudice to the variability to the biodiversity for the benefit of another natural resource or the public, or prejudice to the impairment among living organisms.

350. The specific rule aims to favour the victim, providing them with the authority to opt for the legal system that is more favourable to them in the typical cases of cross-border contamination, where there is dissociation between the place of origin and the place of the damage.

Towards this end, the rule provides that the applicable law will in principle be that of the place in which the damage occurred (in accordance with the general criterion of article 52.2), but the person who claims the compensation for the damage is given the possibility to base their claims on the law of the country in which the event giving rise to the damage occurred. This criterion determines that anyone who is established in a country with an inferior level of environmental protection and contaminates in nearby countries with higher standards of protection may be held liable based on this.

Commentary

Article 56

Infringement of intellectual property rights

1. The law applicable to the non-contractual obligation resulting from an infringement of an intellectual property right, including industrial property rights, shall be the law of the country for which the protection is sought.

2. It shall only be possible to choose the applicable law in accordance with article 52 in relation to the economic consequences resulting from these non-contractual obligations for the parties.

351. Among the common characteristics of industrial and intellectual property rights, their territorial nature has historically and particularly been the determining factor of the law applicable to these rights. The intangible nature of these properties, which permit their simultaneous utilisation in different places, together with their territorial nature, justify the use of the specific criteria for determining the applicable law. These criteria do not have to be consistent with those used with regard to tangible property or those used for non-contractual obligations in general. Due to the limited territorial scope of industrial and intellectual property rights, they may only be infringed by activities carried out in the corresponding territory where they benefit from protection or directed at the same territory, since the exclusive position attributed by them only relates to the territory of the State (or the supranational entity) that grants it or whose legislation establishes that specific right.

These essential traits of the internationally accepted industrial and intellectual property rights are determining factors for the lex loci protectionis criterion, which is common to practically all of the States for determining the law applicable to the protection of registered industrial property rights. The different private international law systems tend to coincide in that the law applicable to the protection of these rights is the law of the territory for which the protection is sought, although the formulation of the conflict rule in this area is sometimes merely unilateral or lacking in precision, in particular in its apparent reference to the country “in which the protection is sought” or by the absence of a specific rule on the law applicable to the protection of the industrial and intellectual property rights. The criterion of the law of the country where the protection is sought has been welcomed concerning industrial and intellectual property in the majority of modern private international law legislations, whilst it is also accepted in systems that do not have a specific conflict rule regarding the infringement of such rights in their legislation.

352. The multilateral formulation of article 56.1 makes it clear that the law on the protection does not necessarily coincide with the lex fori, insofar as the courts of the forum are competent to judge the infringement of foreign intellectual property rights. By applying in each case the law of the country for which the protection is sought, the conflict rule leads to the application of the legislations of all those countries, when an action relates to the breach of rights in a plurality of countries. This circumstance is related to the territoriality and characteristic independence of these rights.

In keeping with the structure of the legal text, the intent and purpose of this rule is limited, since it relates to non-contractual obligations resulting from the infringement of an intellectual property right. Indeed, the other aspects of the regime of these rights are excluded, but are covered by article 61, which governs the law applicable to all other aspects of intellectual property rights, also providing that they will be are governed by the law of the country for which the protection is sought.

353. The rationale behind the lex loci protectionis rule determines that in the area of protection of intellectual and industrial property the connecting factor in principle has a mandatory nature and the possibility that the parties choose the applicable law is excluded. It is not controversial, for example, that for determining what exclusive rights are protected, what their content is and what activities constitute infringing acts, the lex loci protectionis must be applied in all cases, without the parties being able to designate a different legal system as applicable. Notwithstanding the above, the tendency to favour the freedom of choice of law in the scope of non-contractual obligations has been attached, in certain countries, to the recognition of a certain scope of the freedom of choice of law concerning the infringement of intellectual and industrial property rights. From the comparative perspective, article 110 paragraph 2 of the Swiss Private International Law Act of 1987 represented a significant innovation in this respect, which has been developed subsequently in Belgian and Dutch legislation.

In line with the solution adopted in relation with the law applicable to non-contractual obligations resulting from acts of unfair competition and acts restricting free competition, paragraph 2 considers the possibility that the freedom of choice of law operates in these cases, but only with regard to the economic consequences for the parties of the infringement of rights. The rationale for admitting the freedom of choice is that it is an appropriate instrument - although with limited practical relevance - for providing legal certainty to this type of disputes and, within those limits, corresponds to the power of freedom of disposition enjoyed by the parties at the substantive level without undermining the general interests present in the regulation of this area or the requirements derived from the national treatment principle. As a consequence, it follows from the provisions in article 61 that the lex loci protectionis maintains its character as an unrepealable mandatory conflict rule for the parties with regard to the existence and all other aspects related to the protection of industrial and intellectual property rights, their duration, validity, ownership, content, etc. Only the lex loci protectionis determines, in particular, whether or not the infringement has taken place. It is an approach which is coherent with the rationale of the lex loci protectionis rule and the interests involved in this area of the legislation.

Commentary

Article 57

Scope of the applicable law

The law applicable to non-contractual obligations shall govern in particular:

  1. the basis and extent of liability, including the determination of persons who may be held liable for acts performed by them;
  2. the grounds for exemption from liability, any limitation of liability and any division of liability;
  3. the existence, the nature and the assessment of damage or the remedy claimed;
  4. the measures for ensuring the prevention or termination of injury or damage or to ensure the provision of compensation;
  5. the question whether a right to claim damages or a remedy may be transferred, including by inheritance;
  6. persons entitled to compensation for damage sustained personally;
  7. liability for the acts of another person;
  8. the manner in which an obligation may be extinguished and rules of prescription and limitation, including rules relating to the commencement, interruption and suspension of a period of prescription or limitation.

354. This rule determines all of the matters governed by the law governing non-contractual obligations under the conflict rules established in this Section VI. The enumeration of matters that it incorporates is not intended to be exhaustive, as is clearly reflected by the inclusion beforehand of the expression “in particular”.

The enumeration is of great importance for the definition of the scope of the conflict rules of this section with other rules on applicable law contained in the Model Law on related matters444. For example, it is a key factor for defining the scope of the rule of article 56 on the infringement of intellectual property rights with regard to the rule on intellectual property rights established in article 61, relating to Section VII on Property.

355. A provision of this kind is well known in the most advance instruments in the area of non-contractual obligations. As precedents, article 8 of the Convention on the Law Applicable to Traffic Accidents of 4 May 1971 and article 8 of the Convention on the Law Applicable to Products Liability of 2 October 1973, developed in the framework of the Hague Conference on Private International Law may be cited. Another precedent of a similar rule is found in article 15 of the Rome II Regulation on the Law Applicable to Non-Contractual Obligations, which consolidates this matter in the European Union.

356. The initial criterion is that the all of the questions within the regime of non-contractual obligations will be determined by the conflict rules of the present section. Despite the merely indicative nature of the list, it has been decided to include a comprehensive account that favours the didactic value of the rule and its meaning as a reference for the person who will apply it.

Among the questions which form the nucleus of the matters regulated by the law applicable to contractual obligations are matters related to the determination of whether or not liability exists, to what extent, and to what persons it is imputable. It explains that the rule makes express reference to the basis and scope of the liability, as well as to the determination of the persons liable - for their own acts or for the acts of another person - and to the possible extent or limitations of liability.

357. Another set of issues included are those related to the consequences resulting from the existence of liability, such as the measures for ensuring the termination of injury or damage and the provision of compensation, in particular those concerning injury and damage or compensation, which include persons entitled to compensation, which may be a determining factor for bringing actions for compensation and whether such rights may be transferred.

Finally, by providing that the manner in which obligations may be extinguished, as well as the prescription and limitation rules, including rules relating to the commencement, interruption and suspension of a period of prescription or limitation, it is clear that these questions must be categorised as substantive matters and not procedural matters, so that they are determined by the law applicable to non-contractual obligations and not necessarily by the law of the forum as the law applicable to the proceedings.

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