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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 63

Determination of the foreign law

1. Caribbean courts and authorities shall apply ex officio the conflict rules of the present Title or those inserted in the international treaties to which the Caribbean is party.

2. The courts and authorities shall apply the law designated by the conflict rules referred to in the preceding paragraph. For this purpose, the judge may utilise:

  1. the instruments indicated by international conventions;
  2. the opinions of experts of the country whose law is sought to be applied;
  3. the opinions of specialised institutions of comparative law;
  4. any other document showing the content, the validity and the application to the specific case of this law.

3. If, including with the cooperation of the parties, the judge cannot manage to establish the foreign law designated, the applicable law shall be determined through other relationship criteria possibly provided for the same regulatory hypothesis. Failing that, Caribbean law shall be applied.

368. The conflict rules contained in the Section I, Chapter I of the Title III of the Model Law and in the international treaties to which the Caribbean is party are considered obligatory and imperative, applicable ex officio by the interpreter450.

All of this material uses as a benchmark a basic premise: the conflict rule is obligatory for the judge, since it forms part of the substantive law of the forum, who, in turn, has to apply the foreign substantive rule it relates to, since the mandate of that provision is imperative for him. To do otherwise would be to attribute a dual nature to the conflict rules: an imperative nature when they designate the law of the forum and merely an optional nature (fakultatives kollissionsrecht) in the cases that refer to a foreign law451. In such situation, if the judge of the forum does not apply ex officio the conflict rule of its system, he would leave the determination of the law applicable to the simple will of the parties or their incompetence or bad faith, which would be equivalent to an excessive interpretation of the function of the will of the parties in private international law, above all in matters regulated imperatively452. In addition, the voluntary configuration of the conflict rules, contrary to the basic principle of fairness, will lead us to the absurd situation that identical cases would be resolved in a different manner in a same State, including by a same court, depending on whether the parties had or had not urged, in good or bad faith, the application of applicable foreign law.

The wording of paragraph 1 of the present article, by determining the ex officio application of the conflict rules of the forum, has the undoubted technical advantage of not leaving the application of the conflict rule of the legal system of the forum at the mercy of the parties, or one of the parties, wishing or not wishing to invoke the foreign law at their convenience. The ius cogens nature of the conflict rules is established and, consequently, if the judge, when examining the facts assumed by the rule, is aware of the existence of an element of foreignness is obliged to apply it even through it designates a foreign substantive law.

The option of the Model Law is in accordance with comparative law453, with the Bustamante Code, whose article 408 obliges judges to apply “ex officio”, where applicable, the laws of other countries, and in accordance with the provisions in the Inter-American Convention on General Rules of Private International Law of 1979 (article 2).

369. Two procedural matters indirectly compromise, however, the imperativeness of the conflict rule454 provided in paragraph 1 of this provision:

  1. It may occur the parties do not make clear, or even hide, the element of foreignness that justifies the application of the conflict rule. In such an event, the principle of congruence of the judgement together with the principle of party disposition or free disposition would prevent the judge from exercising the authority to investigate and establish these elements of event. However, if the judge considers ex officio that foreign elements exist which may interfere in the clarity and precision of the causes of action submitted, he must give notice of this at the start of proceedings.
  2. If a dispositive procedural regime of foreign law is maintained, the imperative nature of the conflict rule may be may be affected, since if the foreign law is not submitted or proved by the parties. In its absence, the Caribbean law must be applied (paragraph 3). A similar solution may imply de facto that the imperative nature of the conflict rule is such only when it relates to the law of the forum. Thus, if the conflict rule points to a foreign law, the procedural rules must permit the distinct possibility of choice between the foreign law and the law of the forum455.

On the merits of the cause of action for a dispositive interpretation of the conflict rules, a general commitment to the lex fori456 has been inferred, as has been explained by French court rulings in the Bisbal case. Under this, the conflict rule acquires a different nature and scope whether the connecting factor leads to the application of the law of the forum or of a foreign law. The conflict rule is obligatory if it submits the solution of the specific case to the law of the forum, while it conserves a merely dispositive nature if it chooses the foreign law. The “legeforismo” of this solution finds a difficult rational explanation. If the legislator provides for the application of a foreign law to a specific factual case there is no doubt that it does so by considering it to be more adequate; to think that that the most just solution coincides with the application of the law of the forum is justified only in the if it turns out to be less expensive, easier to understand for the judge and possibly favourable to the interest of the litigants; a similar position absolutely omits the interests of third parties, of international commerce, and the State's own interests in maintaining the conception of the justice and the international harmony of solutions.

370. The second paragraph of the provision relates to the so-called “consequence of the conflict rule” and may be summarised in a choice: application by the judge or the authority of the law of the forum or of a foreign law. Although, in principle, both options appear set out on an equal footing, the process of the practical application of the conflict rule leads to a maximisation of the possibilities of application of the law of the forum. Even so, the fact that the localisation devolves upon the law of the forum does not mean that the treatment of the private international situation is going to be exactly the same as though it were a domestic situation. As provided by article 64, the interpreter must apply the lex fori in accordance with the particular circumstances introduced by the international element.

The application of the foreign law in the forum assumes the final phase of the method of attribution and implies that the realisation of the draft regulation contained in the conflict rule has not been distorted. However, such application forces us to face a fundamental contradiction between the system of the forum and the foreign system, since both are legal systems with a different procedural treatment. The iura novit curia principle does not operate, in principle, for the foreign law. However, the foreign law also does not have the procedural consideration of a simple fact, at least in all scenarios. The facts, once proved, continue to be facts. However, the duly established foreign law is elevated to the level of authentic law, which is going to be applied by the judge for resolving the dispute. In summary, the foreign law has a particular procedural consideration, as it is a tertium genus between the law and the facts. This nature must be guaranteed in the proceedings, through which its procedural treatment has to have particular characteristics, at times being likened to the procedural condition of the facts and, on other occasions, to the national legal rules. Paragraph 2 of the present article confirms this procedurally hybrid nature of the foreign law, since it relates to the necessity of proof of the foreign law, which is a clear symptom that it is not a mere fact, but an authentic source of law, although “also” they must be proved.

Undoubtedly, the singularity of the localisation process is due to the possibility that it opens to applying a foreign law. This possibility is common to the generality of the legal systems, but it should be noted that:

  1. Although the majority of the conflict rules of Section I, of Chapter I of Title III of the Model Law use the term “law”, the reference is not confined to the “law” in the formal sense, but to the legal system or legislation in the general sense. The conflict rule relates to the foreign law, including all the sources of the same (Constitution, law, regulations, customs, etc.), this regulatory block having to be interpreted, as provided by article 64, as will be done by the judges of the State of this legal system.
  2. With reference to article 65 of the Model Law (vid. infra), there is no special limitation to the application of the rules of a foreign system, according to their “public” or “private” nature. The referral operated by the conflict rule relates to the foreign law that has to govern the litigious private situation, regardless of its character and possible nature. In practice, the application of the foreign substantive rules of public law has genuine importance in this area of patrimonial rights of international contracts, submitting to certain state interventionism. At this point, the problem is focused on the application of the imperative provisions or rules of economic public policy of the foreign legal system, a problem which will be analysed in the framework of the regime of contractual obligations.
  3. The application of the foreign law stricto sensu must be differentiated from other cases which involve “taking it into account” as mere information, as a mere determining or conditioning fact of the application of the private international law rules of the forum457.

371. The right of the parties to claim foreign law, that is inserted into the present provision and which is confirmed in article 64.1, does not prevent the judge from actively participating in the investigation and application of the foreign law. However, it is convenient to analyse whether the judge's own knowledge concerning the foreign law may replace the burden of proof of the same by the parties and, including, its invocation458. It is possible that, in the face of the indifference of the parties, the judge interposes his own private knowledge concerning the foreign law, and for good reason, in some cases, the legal culture of the judge without any doubt permits him to acknowledge the content of the foreign law on certain points459.

It is not the intention of the provision that the judge can replace the proof of the foreign law through his own understanding. The foreign law must be proved and this proof falls, in principle, to the parties. The judge may take the initiative for gathering sufficient means of proof for confirming the content of the foreign law, regardless of whether or not he knows it, but cannot replace the necessary proof of the foreign law, which must be entered even to a minimal degree in the records, through his subjective knowledge of the foreign law. The factual consideration of the foreign law up to the time of its proof advises the existence in the procedure of minimal prima facie evidence as a constitutional guarantee, while it avoids a decision of the judge which may be arbitrary. Thus, among other alternatives460, the solution adopted in the Model Law is moving in the direction that the judicial function is carried out through collaboration between the judge and the parties. The interested parties must submit the foreign legislation that they consider to be applicable to the case, but if the judge acknowledges the content of the foreign law he must apply it.

372. Regarding the content of the proof of the foreign law, the present article requires that “the validity and the application of that law to the specific case”. The degree of intensity of the proof will be the responsibility of the courts of justice in particular if the mere isolated citation of specific provisions is sufficient, or if a wider scope of documentary evidence is necessary. The principle of submission by the parties must lead to their logical consequences, not only strict means of proof, but also absolute certainty concerning the content of the foreign law.

If the parties do not invoke or demonstrate a complete passivity in the proof of the foreign law the most adequate option is that the judge must not underestimate the cause of action, but take the initiative in obtaining this documentary evidence. If the parties have the right to invoke and furnish proof of the foreign law, and in all cases should have the possibility to debate concerning this proof and its own application, this does not disregard the judge's obligation to apply ex officio the conflict rule and guarantee that the dispute is resolved in accordance with the foreign law in question461. In this case, the costs resulting from the proof will be imposed on the indifferent claimant in the corresponding order to pay costs, providing a sanction proportionate to their lack of initiative.

373. Paragraph i), 2 of the present article permits the judge to have recourse to the international judicial assistance and in this sense he is obliged to refer to arts. 408 to 413 of the Bustamante Code of 1928 in the framework of its reduced scope of application and to the Inter-American Convention on Proof of and Information on Foreign Law, done in Montevideo on 8 May 1979, and whose States members, in addition to Spain, are Argentina, Colombia, Ecuador, Guatemala, Mexico, Paraguay, Peru, Uruguay and Venezuela. It is an international text produced in the CIDIP-II, which establishes a system of international cooperation between the States members for obtaining elements of proof and information concerning the law of each one of them. The said elements of proof will comprise “the text, validity, meaning and legal scope of their law” (article 2) and will be incorporated in some “suitable means” (article 3) such as: a) documentary proof, consisting of certified copies of legal texts together with an indication of their validity, or judicial precedents; b) expert testimony, consisting of opinions of attorney or experts on the matter; and c) the reports of the State of destination on the text, validity, meaning and scope of its law. The requests must contain a precise statement of the elements of proof being requested and will consign each one of the points that refer to the consultation, together with an indication of its meaning and scope, and a statement of the relevant facts for proper understanding thereof. The language of the request will be that of the requested State (article 5). This may be directed directly by the jurisdictional authorities or through the central authority of the requesting State to the corresponding central authority of the State requested, without any need of legalisation. The Central Authority of each State party shall receive the requests made by the authorities of its State and forward them to the Central Authority of the requested State (article 7).

374. In the absence of international cooperation, the means admitted by the legislation of the forum may be employed in furnishing proof of the foreign law. These include documentary proof and, in particular, expert evidence.

  1. Documentary proof turns out to be the most operative, and the proof that provides greater guarantees. This proof is not admissible through private or general documents, legislative collections, doctrinal works, etc., but through public documents or acted on by a public official and may be introduced to the proceedings through certificates issued: a) by a state authority authorised to provide that information which tends to be registered to the Ministry of Justice; b) by diplomats or consuls of the State of the forum authorised in the State whose law must be applied; c) by diplomats or consuls of the country in question, authorised in the State of the forum. These certificates will be rapid and easy to obtain, but have the inconvenience that they will never be able to determine the scope and content of the foreign rule, but only its literal text and, possibly, its validity. Nonetheless, this inconvenience may remedied by requesting information from the foreign country in question or by using a mechanism of information certified by the mentioned state authority for such function. This proof may be sufficient by itself in many cases but when the content of the foreign rule does not require a special interpretation, it is easy for the existence of the regulations provided with documentary proof to be more than sufficient.
  2. The provision studied considers the possibility of determining the existence and validity of the foreign legislation through “the opinions of experts of the country whose law is sought to be applied”. However, there should be no doubt that expert evidence must be the object of greater suspicion than documentary proof, due to the possible “impartiality” of some experts whose assistance is sought, but that the interested party generally remunerates. Therefore, every effort should be made to control the capacity and independence of the expert, and must also be extended to the free appointment of the expert by the judge, taking into account the guarantees of capacity and independence that he offers. Some other decisions demonstrate a greater flexibility however.
  3. Finally, documentary proof is admitted through “the opinions of specialised of comparative law institutions”.

375. The tactical treatment for procedural purposes of the foreign law raises another important problem: if a party submits a foreign law as a fact and the other expressly admits the existence of this rule, without offering a different interpretation of it, does the Court have to take its existence for granted, by departing from the so-called constriction of the “admitted facts”? A positive response is not satisfactory. The judge may not construct his judgement from a purported foreign rule, merely because its existence is not contested by the party opposing the party that submits it. For that matter, in an extreme case, is the judge going not to apply a provision that he, through his private knowledge, knows in effect exists, only because the litigant had to prove and has not done so? The response to this conundrum depends on whether the ex officio judicis investigation is permitted or whether a more conservative position is followed in this area. If a party proves sufficiently the content, existence and validity of the foreign law, the other party, if it accepts it, is relieved of the proof; but, ultimately, it is required that the proof is furnished sufficiently by one of the parties, which is a contradiction. On the other hand, the acceptance of the doctrine of the established facts indeed permits that the parties violate the principles of regulation provided by the legislator in a conflict rule. The optimal solution is that the judge, facing the agreement of the parties on the content of the foreign law, asserts his own knowledge or the instructions that the legal system offers him for investigating ex officio the foreign law. It puts us in contact with the general matter of the judge's participation in the investigation of the foreign law, a real possibility in the Model Law.

376. Assuming the maxim of the ex officio inapplicability of the foreign law, it is necessary to investigate if any mechanism exists in which the judge is permitted to replace the error of submission of the foreign law or of the proof of its content. On this point, the proceedings for providing additional proof intended for the knowledge of the foreign laws are an power of the judge, and never an obligation; but, in addition, it appears that these measures, given their nature and location in the process, although highly advisable, are only justified if the parties have invoked the foreign law, but have not provided sufficient proof of it. Consequently, the submission by the parties of the foreign law it would always be necessary, and the judge's activity would be reduced to supplementing or even replacing the necessary proof of that submission by the parties. Since the measures for providing additional proof may not become, given their nature, facts that have not been submitted by the parties, it is necessary to stress the restrictive nature that leads to this interpretation. Once the judge determines the applicability of a foreign law for governing the case, through the ex officio application of its conflict rules, he should be authorised to implement the mechanisms of proof of the same, regardless of whether or not the parties have submitted this.

377. In accordance with the principle of the imperative nature of the conflict rule, it appears at first view that the cause of action should be dismissed when the parties have not submitted or provided sufficient proof of the foreign law. Using this principle strictly, the party that does not submit or has not managed to provide proof of the foreign law will see his claim dismissed without any possibility of revisiting his claim based on the submission and correct proof the foreign law. A similar solution very possibly will be contrary to the principle of effective legal protection, which would oblige to interpret the system allowing to correct this result.

A dismissal of the claim based exclusively on the lack of submission and proof of the foreign law does not offer a response regarding the merits of the claim, but a disproportionate and arbitrary sanction for the procedural conduct of the parties, in view of its preventive consequences for obtaining a ruling as regards the merits. In all those cases in which the referral to the foreign law derives from a conflict rule arising from a convention, in which case the ex officio application is necessary for complying with the international obligation assumed; this is the actual wording of the convention-based rules that tend to require the application of the law designated with the sole exception of public policy.

378. The body of the application may find itself in a situation of being unable, substantively, to apply the foreign law. This impossibility, considered in paragraph three of the present article, is absolute if it is impossible to establish the connecting factor of a conflict rule, when the foreign legislation contains a loophole in the regulation of the case or indeed its content could not be determined or is overtly contrary to public policy, in the sense set out under the previous heading, concerning in this case a legal or moral impossibility, more than a substantive one. The impossibility may be partial if only rules related to partial aspects of the litigious situation are unknown or exempted, in which case the substantive impossibility of applying the foreign law is raised only in respect of those cases. The lack of proof of the foreign law does not in the same way imply a substantive impossibility, as it may depend on the will of the parties or the interpreter, although their consequences may coincide, as we will see, with those that produce the substantive impossibility of applying the foreign law.

In these cases the question is to determine what law must be applied in the event that the conflict rule of the forum designates a foreign law and it is impossible for this to be known by the judge, or, if you will, if we are dealing with a case of “substantive impossibility” in the application of the foreign law. When faced with this problem, there are hypothetically two solutions available to the judge. Firstly, to dismiss the claim, purely and simply, which is the easiest solution, but which entails a procedural situation of no solution to the dispute and may give rise to evidently unjust consequences, not only putting in doubt the legal nature of the foreign law, but because an evident denial of justice occurs. Secondly, he is “obliged” to apply a different regulation. The question then consists of determining this. There are three responses to this question.

  1. To find that this regulation must be determined by the judge himself based on the “general principles of law common to the systems in question” in the dispute462. There should be no doubt that this construction implies a potentiation of the comparative method, by insisting on the common aspects of the legal systems in question. However, despite the attractiveness of the approach, it is worth asking about its operability and, in that sense, what is easy to apply in arbitrations it is not the same for the national judge, who is limited by his own legal system.
  2. The application of the closest legal system. That is to say, in the case of substantive impossibility in the application of the foreign law claimed for the conflict rule, recourse would be had to a legal system of the same legal family, also based on comparative law. It is an interesting solution from the theoretical perspective, but is unreal from a practical point of view. It is certain that legal systems exist with a high degree of mimetism and reception with respect to others, nevertheless, to apply the proposed solution in these cases leads to a purely expedient result and to its possible arbitrariness and through the contradictory results to those that could arise.
  3. The application of the lex fori. This conception has been maintained from distinct positions. One talks, first and foremost, of a “presumption of identity” through which this thesis is directly related with the argument that we have just set out; but it is only operative in the Anglo-Saxon countries based on common law. There has also been a reference to the “general jurisdiction of the law of the forum”463. Finally, the approach in support of the presumption of the residual jurisdiction of the law of the forum is most frequent; the conflict rule of the forum brings us back to the foreign substantive law, but, if this is lacking, it is the law of the forum itself that fills in the loophole with its own substantive rules464. This is the solution that is decisively adopted in paragraph 3, in fine, of the present article. Not surprisingly, the superiority of the law of the forum derives from elemental practical reasons such as its certainty and, above all, the facilities for interpretation incumbent on the judge465.

Once this final solution is accepted, the judge must, however, have the certainty that the impossibility of information concerning the foreign law is not the result of mere negligence by the party or of a fraudulent attitude466 and thus, it may utilise the appropriate steps. In other words, the application of the lex fori rule will only be feasible if all of the information media of the foreign law have been exhausted and, in addition a substantial relationship with the forum exists. And, in any case, as last resort, there are occasions in which it may be feasible to resort to a “third law” through the utilisation of subsidiary connecting factors deduced from the private international law system itself that we are applying467.

Commentary

Article 64

Interpretation

1. Caribbean judges and authorities shall be obliged to apply the foreign law as this would be done by the judges of the State whose law is applicable, without prejudice to the parties' right to submit and provide proof of the existence and content of the foreign law invoked.

2. The foreign law shall be applied according to its own criteria of interpretation and application in time.

379. When applying the foreign law, the judge of the forum must start from the premise of the integrity of that regulation. In accordance with this provision, the judge must “dive” into the foreign legal system and apply it as if he were a judge of this country469. This implies that the foreign law must be applied by the judge of the forum in the context of the plurality of sources of that system and that this judge must, likewise, take into account the hierarchy of sources prevailing there (paragraph 1). Secondly, it is necessary to carry out an interpretation of the rule claimed in accordance with the criteria of the foreign system itself (paragraph 2)470. The integrity of the foreign law claimed includes, thirdly, the so-called referral ad extra where a State in which different legislative systems coexist is concerned (article 70 of the Model Law).

The localisation continues to be the first rung of private international law. The conflict rule refers the regulation of an international case to the rules of a certain national law. However, at a second rung, these national substantive rules may not be applied without consideration of the internationality of the case. Its interpretation, applicability and operation must be modulated by taking into account how the international element impacts on the case. In summary, the second rung, the application of the substantive law of a certain State, requires reintroducing into the response the international element of the case.

380. The judge's powers may even achieve the same approach as the conditions of constitutional validity of the foreign law provided that, clearly, some constitutional review mechanism exists in the foreign legal system. In this case, the position of the judge of the forum is conditioned by the solution that is given to the question by the foreign law claimed, without the inexistence of a similar process in its legal system having an influence471. Pursuing this idea, a series of different situations should be addressed:

  1. If a court or a political body of the foreign State whose law claims the conflict rule of the forum have pronounced with erga omnes validity on the constitutional legitimacy or the constitutional illegitimacy of the rule claimed, the judge of the forum must resolve in accordance with the criteria expressed by the foreign court or political body, the topic being subsumed in the general problem of the proof of foreign law, which will be addressed below. The ultimate reason of such asseveration rests, on the one hand, in that the legality of the rule claimed in the scope of his own legal system is a requirement prior to taking it into consideration472 and, on the other hand, in the fact that if the foreign law has lost its legality it lacks imperative force in the State of origin, and, therefore, may not be applied by the judge of the forum473. In this manner, the judge of the forum must be limited to assuming to the full extent the result of the error by the foreign Constitutional Court which is pronounced concerning the constitutionality or unconstitutionality of the rule claimed474. This assumption does not result from the direct submission of the foreign court, but from the mandate itself contained in the conflict rule to apply the foreign law in its own context, as will be done by the authorities of the country in question. Naturally, in the application of the foreign rule declared constitutional will always enter the limit of not being contrary to the public policy of the forum.
  2. If the constitutional control proceedings of the law claimed by the rule of the conflict of the forum are still pending a solution, it should be possible to suspend the proceedings in the forum, although this is not possible sometimes in accordance with the procedural rules of the forum, each time that the judge is obliged to employ these rules in the verification when there are motives that justify the suspension. In any case, the situation of pendency existing in the foreign State must be relevant for the judge of the forum if the foreign decision can generally affect the legality of the controversial rule. This relevance clearly requires that there are open proceedings abroad concerning the constitutionality of this rule before the relevant competent constitutional body; and that the change of the challenged rule conditions the bodies that must apply it and, ultimately, the judge of the forum. The determining character for the judge is to ensure that he appreciates that in the foreign system the application of the controversial rule is suspended until the judgment on the constitutionality is finalised475.
  3. The majority of questions call for a nuance according to which the foreign law invoked “may be declared unconstitutional” in the foreign law, giving rise to the possibility that the Constitutional Court or similar body in this country will come to declare it as such: is the judge of the forum authorised to pronounce on the unconstitutionality of the provision, although this has not even been declared in the country from where it originates? The provision in question does not close this path which is directly related to the scope of the powers that the judge of the forum has at his disposal for exercising a control of the constitutionality476. In all cases, the mechanism of “immersion” in a foreign legal system implies that if, in a foreign constitutional system, it is understood that the challenged rule continues to maintain its validity as long as there is no express pronouncement by the constitutional body, this rule will continue producing all of its legal validity and connection to the judge of the forum477. Nevertheless, in certain constitutional systems, this solution is not so clear, which gives a certain degree of invalidity to the affected rule; in this case, the judge of the forum will have to take into consideration the foreign court rulings in this regard and act accordingly.

381. Paragraph 1 in fine of the provision establishes parties' protagonistic nature in the submission and proof of the foreign law by inserting the possibility that these “may submit and provide proof of the existence and content of the foreign law invoked”. It thus opts for leaving the judge with a limited role (vid. supra, article 63.2) in the knowledge of the foreign law, which implies, on the one hand, a dispositive note, i.e., the impulse is up to the parties and their action conditions the subsequent mechanics of the proceedings and, on the other hand, that the specific determination of the foreign legislation, as well as its proof, are practiced through a collaboration between the judge and the parties. In summary, the obligation to determine or verify ex officio the content of the foreign law is binding on the judge (article 63.1), admitting the possible collaboration of the parties, either as a result of their own initiative, or at the request of the judge.

382. Part two of paragraph 2 of the present article makes reference to the so-called “transitional international conflict”, i.e. the problem resulting from the modification in time of the substantive rules of the foreign law declared applicable by the conflict rule of the forum478. Two solutions have been indicated for resolving the transitional international conflicts.

  1. A first solution would consist in applying the principles of transitional law of the lex fori, while considering that only the foreign substantive rules have a foreign nature by reason of their origin. A similar solution is not acceptable as it would imply a denaturalisation of the regulation claimed by the conflict rule of the forum.
  2. Thus, the option for the application of the transitional provisions of the foreign law must be selected, as has been done for the present article. There is no doubt that this option is the recourse more in accordance with the “principle of integrity” of the foreign substantive law and with a limited role attributed to the conflict rule of the forum, whose function concludes in the designation of the foreign law claimed, this being (the lex causae) the rule responsible for crystallising the substantive rule that has to be applied to the present case.

However, the application of the rules of transitional law of the lex causae, admitted as a general principle, will give way to the application of the transitional criteria of the lex fori when it is substantively impossible to determine the content of the transitional provisions of the foreign law, or indeed when they are liable to contradict the international public policy of the forum. This final possibility is particularly feasible if the foreign legislator has put in force retroactively applicable imperative substantive rules or provisions, liable to infringe certain individual rights or legal principles firmly rooted in the lex fori, i.e., with public policy value.

Another circumstance which, in general, may give rise to an exception to the principle of application of transitional provisions of the lex causae, is rooted in the mobility of the factual situation, in the dissociation of the case at a given time in respect of the foreign law, a fact that may justify the inapplicability of the subsequent provisions of the lex causae, even if they determine their rules of transitional law.

A final, particularly important, special exception occurs in the area of contractual obligations. Through the so-called “incorporations by reference”, and for economic reasons, for the sake of convenience or a greater degree of development of certain legal systems, the contracting parties may include in the contract a reference to certain rules of a national legal system or an international Convention, as long as they prevail at a particular time. In this manner, they incorporate this regulation “by reference”, as if its text were a letter written by the contracting parties themselves. In these cases, the modification of the foreign law or, where applicable, of the convention regime, lacks any validity, since the parties do not proceed to designate the law applicable to the contract, but to “copy” the foreign rules or conventions existing at a given time, such as a simple agreement of wills between them. The said agreement that reflects the incorporations by reference will lose validity, like any other agreement, only if is contrary to the law that governs the contract.

Commentary

Article 65

Foreign public law

The foreign law designated by the conflict rule shall be applied although it is contained in a provision of public law.

383. Although from widely divergent perspectives in classic private international law any intervention by public law has been systematically denied in all its areas, including those related to the applicable law. A similar construction is based on three main arguments. Firstly, the private law nature of the matters that are subject to regulation by the private international law would not permit entry into the forum to the foreign public law, since, otherwise, the national sovereignty would be seriously affected. Secondly, the rigorously territorial nature of this normative block, which, as a result, means that it is only able to be applied by the courts of the State in which it had originated; and finally, in considerations of public policy479. Based on these arguments, one finds evidence that private international law does not refer to all of the conflicts of international laws within the area, but exclusively to those arising between provisions of private law so that a strong doctrinal current, endorsed by numerous court rulings, proceeded to exclude the rules of public law.

The doctrinal evolution of these traditional positions has been long and bumpy. From the justification of a “timid” welcome of the foreign public law480, to the more emphatic admission481, the results of the scientific investigation in recent years have tried to provide a response to a characteristic phenomenon of contemporary society: interventionism of the State especially in economic life482. And, more importantly, the doctrinal polemic has not been sterile, but has encountered a significant projection in practice483. Currently, the position favourable to the application of the substantive foreign rules of public law is unanimous in the doctrine and apart from a few isolated positions484 is reflected in the Resolution of the Institute of International Law of Wiesbaden of 1975485 and is included in article 6.1 of the Polish Private International Law Act. Although it is important to note that after the appearance of certain problems of applicable law that appear to involve foreign of public law rules, often a different problem is overlooked: the recognition in the forum of the foreign public acts, shifting the main focus of the question of the sector of the law applicable to the area of the recognition of acts.

384. The distinction between public law and private law, in the scope of the domestic law, has become blurred, to a large extent, lacking in the utility that it once had in the past486. If today this distinction only has an instrumental nature, it would be a mistake to preserve it, or even to intensify it, in private international law. This is the direction taken by the contemporary scientific doctrine and brought to the fore in the mentioned Resolution of the I.I.D. In accordance with this Resolution, it is an evident fact that in the scope of comparative law the distinction between public law and private law is tinged with a note of relativity and marked by its evolutionary nature, and the constant interpenetration of these two strands of the law is likewise evident, as a consequence of the changes in the facts and in the ideas through the interventionism of the State, especially in the regulation and in the protection of the interests of the individuals and in the management of the economy.

It is convenient to note, in addition, the traditional statement that public law has an exclusively territorial nature, since the distinction between public law and private law does not have any practical value. Unsurprisingly, apart from the unity of the legal system of each State, a reciprocal penetration of the rules of one group into the other is occurring more and more often. The reality of the matter indeed shows that if classical private international law denies the possibility of applying foreign public law, it has done so for very different reasons, among which the influx of the statutory provisions certainly stands out prominently. Today, the review is based on the growing interventionism of the State in matters traditionally of private law. But this is not the only justification of the application of the substantive foreign rules of public law. Currently, there is practical unanimity in affirming that one of the arguments of this opening is, without doubt, the growing cooperation between the States in the attainment of the interests of international commerce and the progressive impact of public law on private law487.

385. The CIDIP Conventions on applicable law are focused on the area of private law, even if some of them establish the possibility for the consideration of certain questions relevant to public law, it is true from the perspective of the proceedings488. In any case, from the reading of the CIDIP Convention on general rules of 1979, it may not be inferred that its provisions are drafted exclusively for responding to exclusive questions of private law489. Together with this reality it may not be ignored either that the question under discussion is expressly regulated in certain national systems490 including, with the same drafting as the present article, in article 61 of the Model Law of Private International Law Act of the Dominican Republic of 2013.

386. It should be repeated that the application of the foreign rules of public law corresponding to the law designated by the conflict rule does not raise identical problems as the application of the foreign public law in the recognition of the validity of acts or decisions created or constituted abroad, a question which goes beyond the problem of the choice of the applicable law. There is no doubt that the substantive foreign rules of public law are often taken into consideration by the legal system of the forum in the choice of the applicable law. Thus, it occurs when determining the foreign nationality that is established as a connecting factor of a conflict rule. For its determination, it is necessary to take into account the law of the foreign nationality, which governs its attribution, acquisition, loss, etc. Apart from this case and of other similar cases, the “publification” of private law, especially in the area of contracts, raises the possibility of applying the laws on economic overriding mandatory rules of the legal system designated by the conflict rule, which, if they were not applied, would make a mockery of the determination of the applicable law in the area, in the majority of cases infringing the principle of integral application of the law designated by the conflict rule or the regulations provided for guaranteeing the security of the transaction. It is also possible to proceed to the application of such economic policy rules relating to a third State, as provided by article 69 of the Model Law: “Caribbean courts may, where they consider it appropriate, give effect to the imperative provisions of another State closely connected with the legal relationship”. For deciding whether it must give effect to these imperative provisions, their nature and object, as well as the consequences that are derived from their application or of their inapplicability shall be taken into account.

In practice, the application of the foreign substantive rules of public law has real significance in this patrimonial area of international contracts, submitting to a certain state interventionism. At this point, the problem is focused on the application of the imperative economic public policy provisions or rules of the foreign legal system, a problem which, as such, is considered by article 69 of the Model Law. On the other hand, the application ex officio of the foreign law by the judge and the overcoming at the present time of the difficulty in access to the foreign law which lead to its full application also require the unofficial nature in the knowledge of the foreign public law491.

Commentary

Article 66

Adaptation

The various laws that may be competent for governing the different aspects of the same legal relationship shall be applied harmoniously, striving to achieve the objectives pursued by each of these legislations.

The possible difficulties caused by their simultaneous application shall be resolved by taking into account the requirements imposed by fairness in the specific case.

387. The adaptation492 has for many decades been the paradigmatic exponent of some insufficiencies of the conflict rule method493 and, at the same time, demonstrative of how the flexibility of the solution techniques contributes to an adequate response to the regulation of the private international transactions494. Unsurprisingly, it has been affirmed that the distance between the adaptation technique and the own technique of the substantive private international law rules is not particularly significant495.

Without doubt the most well-known regulation on adaptation is included in article 9 of the CIDIP Convention on General Rules of Private International Law of 1979. This provision was introduced at the proposal of the Venezuelan delegation in the CIDIP with a vocation of approximation to the Anglo-American systems, with the desire to overcome “unpredictable imbalances for resolving the problems of private international law” and such as “adequate response” to the criticisms against the utilisation of indirect regulations in this legal system496. The content of the said article 9 was inserted with slight modifications in article 14 IV of the Civil Code for the Federal District of Mexico (CCDF in Spanish)497 and in article 7 of the Venezuelan Private International Law Act of 1998 with the sole qualification that the latter uses the term “laws” instead of “Acts”. But apart from this coherence of the domestic legislator of Venezuela, which is also present in the Mexican Draft Law of Private International Law, its favourable welcome in the eight other Latin American States parties to the Convention should be highlighted: Argentina, Brazil, Colombia, Ecuador, Guatemala, Paraguay, Peru and Uruguay.498 In accordance with the said article 9,

“The different laws that may be applicable to various aspects of one and the same juridical relationship shall be applied harmoniously in order to attain the purposes pursued by each of such laws. Any difficulties that may be caused by their simultaneous application shall be resolved in the light of the requirements of justice in each specific case.”

The content of this text, which has come to be included among the greatest successes of Inter-American private international law499, advises a return to the classical question of this regulation, from an essentially originally Eurocentric perspective of the question, which takes into account to a great extent the doctrinal approaches realised in Latin America, with the object of indicating the possibilities of the rule in the regulation of the private international transactions of the OHADAC area.

388. The role of the conflict rule concludes with the localisation or determination of the foreign law applicable. The solution of the specific case, including the process of selection of the substantive rules of the foreign law that have to be applied in accordance with the categories of this regulation, is a question that does not concern the law of the forum, in the same way that occurs in the case of referral to a State with more than one system of law. For that reason, strictly speaking, the so-called “conflicts of qualifications” occur only in cases of inadequacy which entail the application of various conflict rules of the forum that refer to various substantive laws. In these cases, and particularly when proceeding to apply the lex fori and a foreign law at one time to the same litigious situation, it is possible to infer the decisive set of categories and the rules of application of the law of the Court which hears the case.

Unlike what happens in the resolution of the purely domestic relationships, in which the legal system of each State ensures the coherence of the institutions, this coherence is much more complex in the private international transactions, despite the increasingly more relevant action of the international conventions500.

The well-known technique in private international law called “adjustment” or “adaptation” indeed responds to the problem of the incompatibility of rules related to various categories and which must be applied simultaneously. This entails an operation of integration of rules of foreign law in the forum, either through an adequate interpretation of the substantive law or through an adaptation of the conflict rule so that it leads to a focused substantive law attuned, although both techniques incorporate common elements. It is a technique which, despite its abundant treatment in court rulings, has not had very extensive treatment in the regulations of private international law.

389. The broad heading of “techniques of adjustment or adaptation” generally encompasses diverse recourses which, in turn, hinge on different problems, whose definition has sparked a quite sterile conceptual discussion. It is appropriate to start with the distinction between the cases that give rise to the adaptation strictly speaking and other ones that specify the “substitution” or “transposition” of institutions, the latter underpinned in the “theory of equivalence”501, which in private international law is also applicable to the problem of the “preliminary question”; i.e. when does a preliminary question regulated by a substantive law different to the law applicable to the principal question exist in the solution of the legal relationship502.

The substitution and the transposition possess a common element with the adaptation strictly speaking: they appear through the partial application of different substantive laws to the same case of the private international transactions503. But there is an essential difference due to their origin. In them the foreign institution that is sought to be taken into consideration must, in any case, have similar consequences to that of the forum both from the point of view of their background (homosexual union, polygamous marriage ...), as well as from their effects: it is a matter of verifying whether in the foreign law the relationship considered is liable to produce similar consequences to those requested before the judge of the forum. As may be observed, it comprises the application of two successively applicable laws. On the contrary, the adaptation occurs between competing and contemporary substantive rules. Understandably, the response to this question is essentially casuistic and is based on the guidelines for court rulings followed in each particular system of private international law.

It has reasonably been proposed that the specific cases of transposition and substitution be treated jointly based on the said notion of “equivalence”, whose relevance is also projected into other areas of private international law with a distinct content and scope: with a focus on the conflict of laws, it is advisable to speak of “formal equivalence”. In general terms, it is assumed to attribute effects in the forum to concepts and categories which, even if they differ technically compared to another legal system, in both systems they fulfil a similar or equivalent legal function in respect of the same institutions504; thus, it involves the presumption that regarding the same kind of legal question the various responses contained by the laws in question are equally acceptable from the point of view of material justice and, as such, there is no obstacle to its welcome by the legal system legal of the forum. Thus conceived, the equivalence strengthen the “neutral” nature of the conflict rule, in the sense that the designation of the applicable law is effected exclusively according to the inherent connections of the legal relationship, and rather than eliminating the conflict rule mechanism, reinforces it505. This solution may be considered valid since the legal rule, ultimately, is conditioned by a social reality and the equivalence highlights precisely what commonly exists in this reality, in the sphere of distinct systems, notwithstanding the apparent contradiction between the technical construction elements of the law. The solution to private international transactions cannot be achieved if any legal effect that uniquely concerns them could be regulated in accordance with the legal criteria that prevail in the forum506.

390. Greater complexity is offered by the solutions for the cases of adaptation strictly speaking. There are, in principle, three possible alternatives available to the judge for resolving the possible legislative contradiction existing between two foreign legal systems:

  1. Application of the lex civilis fori for which the judge decidedly eliminates the disagreement between the foreign legal systems. A similar response is justified in the conflict rule systems in a principle connected with the application of the foreign law in the forum, which is nothing other than that, in the case of “impossible application” of a foreign system, the judge must give application to the lex fori under the so-called “residual competence”; and, it goes without saying, also finds justification in the legeforistas systems507. Besides this, sufficiently convincing arguments which justify the negative position based on a strict interpretation of the judicial function in private international law have also been offered. It is thus established that the judge does not have any power to implement a possible adaptation between the foreign substantive systems declared applicable by the conflict rules of the forum, or, from other perspective, to derogate from applying a conflict rule of the forum, for the benefit of another, submitting to the law designated by the latter all of the problems covered by the decision. Consequently, since the judicial function consists of the application of the law and not its creation, the problem exceeds the legislator's mandate contained in the rules of their own system of private international law, unless an express rule of this system attributes to the judge express authority or mandate for carrying out the adaptation operation.
  2. To modify the application of the conflict rules of the forum, dispensing with one of the foreign systems so that the judge submits the entire case to one of them, excluding the other; v.gr., opting to consider that it is a problem of a matrimonial property regime or that it is strictly a problem of succession. More specifically, the judge considers one conflict rule and discards the other, opting to submit both questions to the same legal system, giving priority to one of the conflict rules and, in this manner, ensuring the coherence of the final regulation. But in this point the doctrine is not peaceable with a view to justifying the choice. A certain area gives priority to the first of the conflict rules which has operated in time (in this case the law related to the matrimonial property regime) or to choose exclusively the conflict rule that relates to the law ultimately applicable, since this is the current problem being heard by the judge (the rule related to the succession regime), following constructions related to the change of connecting factor508.
  3. To modify the applicable substantive laws by implementing adaptation efforts through a partial application by the judge of each one of the systems in conflict, granting certain effects attributed by each one of them; v.gr. before the surviving spouse / successions conflict, attributing the particular rights of the family property regime by a foreign law or system and the rights of succession in accordance with the other system, in order to have an adequate final result509. The judge may, in order to avoid such imbalances, seek an ad hoc solution, aligning the respective substantive laws in play, for example, through the adjustment of the rights received under both regulations.

With the present article, when problems of adaption occur, it is easy to modify the conflict rule or the successive or simultaneously applicable substantive rules, so that it can give rise to a harmonious and coherent regulation of international law.

Commentary

Article 67

Exclusion of renvoi

The foreign law designated by the conflict rule is understood to include its substantive law provisions, with exclusion of renvoi that its conflict rules may make to other law, including Caribbean law.

391. Among the other options that have punctuated the doctrinal history of private international law and which have been embodied in the different national systems and inserted in numerous international conventions, the provision opts for a radical solution510. This solution determines that the referral to the foreign law is understood to be made exclusively to the substantive law, with exclusion of the conflict rules of the foreign system. This principle runs counter to the technique known as “renvoi”, which implies a referral to a foreign law through the conflict rule of the forum and the consideration or observation of the conflict rules of this foreign system. If these rules refer to the law of the forum, we will be faced with a case first-degree renvoi or return of the renvoi; if, on the contrary, it relates to a third law, it would be a second-degree renvoi511. Both options would be excluded from the provision.

The advantage of the renvoi is that it respects the foreign law to such a point that the judge intends to resolve the case such as if he were the judge of the country whose law has been declared applicable. He has to resolve the case in accordance with the other law, preferably his own, through the action of this institution. For its defenders, it is an instrument whose mission is to contribute in the search for the legislation that has to govern a certain private international situation, but in many cases far from fulfilling this mission, it may complicate the tasks of the judges and give rise to unpredictable and unjust solutions.

Nonetheless we are faced with a formalist technique that is hardly justified in the convenience or interest in facilitating a preferable application of the law of the forum, even when it has to betray the particular meaning of its conflict rules (vid. supra, article 64). If one wishes to apply the lex fori it is much more correct to use other techniques, such as v.gr. those contained in article 69 and to express this preference frankly. If the response to the conflict rule of the forum already creates uncertainty at the time of the determination of the substantive law applicable that uncertainty is multiplied after the implementation of the foreign conflict rule. And in addition to this, the conflict rule of laws that implements the mechanism of the applicable law is a conflict rule of the forum and not a foreign conflict rule512. It should not seem odd that already in 1900 an institution of the prestige of the Institut de Droit International already expressed in its meeting in Neuch?tel of 1900 that when the law of a State governs a conflict of laws concerning private law, it is desirable for it to designate the same provision that must be applied in each matter and not the foreign provision on the conflict in question.

392. In the modern legislations of private international law, particularly in the framework of the European Union513, the exclusion is express as is also the case in Latin America, in the CIDIP Convention on the Law Applicable to International Contracts of 1994, whose article 11 provides that “For the purposes of this Convention, “law” shall be understood to mean the law current in a State, excluding rules concerning conflict of laws”514. In many convention texts the application of the foreign substantive law is implicit, with exclusion of the rules of private international law, either because they refer to the “domestic law”, or because they tend to provide that the application of the law designated by the conflict rules provided in the same “may be refused only if it is manifestly incompatible with public policy”. A sensu contrario, it will not be possible to disapply the law designated by the Convention as a result of other functional correctives, such as the renvoi. Furthermore, the CIDIP Convention on General Rules of 1979 remains silent on the institution studied. Finally, it should be pointed out that there are already national legislations that exclude the renvoi. Such is the case of article 2048 of the Peruvian Civil Code or article 16 of the Belgian Code of Private International Law of 2004, “subject to special provisions such as those applicable to real estate successions (article 78.2) or legal persons (article 110)”. The elimination of this institution may only be explained by the relevant role that has been conferred to the habitual residence.

Certainly in many countries of the OHADAC zone the inclination to maintain the technique of the renvoi is more a result of past habits, often based on old-fashioned doctrinal conceptions, than a choice for granting an adequate solution to the of the private international transaction relationships, guaranteeing legal certainty515. And, at this point, it is worth recalling that the Bustamante Code did not regulate the institution516 that is now also being excluded.

Commentary

Article 68

Public policy

1. The foreign law shall not be applied if its effects are manifestly incompatible with international public policy. This incompatibility shall be observed by taking into account the connection between the legal situation and the legal system of the forum and the seriousness of the effect that would be produced by the application of this law.

2. Once the incompatibility is admitted, the law indicated through other connecting factors possibly provided for the same conflict rule shall be applied and, if this is not possible, Caribbean law shall be applied.

3. For the purposes of the preceding paragraphs, international public policy shall be understood to be all of principles that inspire the Caribbean legal system and which reflect the values of the society at the time of being observed.

4. Caribbean public policy shall include the imperative provisions or principles which cannot be derogated by the will of the parties.

393. The rule includes in its paragraph 3 a definition of “public policy” in the broad sense, such as all of principles that inspire a legal system and which reflect the essential values present in the State of the forum at the time in which must be observed517.

With this drafting, there is a reference to the so-called “negative” dimension of public policy, the “positive” being considered in article 69 of the Model Law. It is a “functional corrective” of the law claimed by the conflict rule, pursuant to which the application of this is avoided if it is observed that “its effects are manifestly incompatible with international public policy”.

From the procedural perspective, a negative dimension of public policy may also be encountered in the area of the recognition of decisions and acts constituted abroad, preventing their validity in the forum when they are manifestly contrary to the same518. In accordance with article 74.1, i) of the Model Law, foreign judgments will not be recognised “if the recognition is manifestly contrary to public policy”.

394. The notion of public policy does not show an unequivocal nature in the sector of the applicable law itself. In parallel to the distinction between domestic public policy (broader and more operative in the domestic transaction situations) and international public policy (more reduced and specifically applicable to private international transaction relationships) the degree of action or intensity of this corrective varies according to the matter and the area of the law considered.

This distinction between domestic public policy and international public policy has been traditionally represented in the doctrine as a figure of two concentric circles, the inside circle corresponding to the international public policy, in such a way that the international public policy rule is inserted within domestic public policy but not vice versa. The space that is located on the edge of the circle provides a dispositive note in private international transactions, in that freedom of choice in domestic private transaction situations remains on the outside of the greater circumference. Against this classical interpretation, one division is currently being argued, which takes as a point of reference the inscription of international public policy in a circle that contains a part of domestic substantive law. This ultimately implies its overlapping with the notion of imperative rules (article 69); and, furthermore, it is vague, since the expression “international public policy” appears to indicate a reality rooted in requirements of the international community and not in the framework of “domestic public policy”.

The graphic example of the concentric circles is operative from two points of view. Firstly, because there is nothing to prevent the circle referring to international public policy from containing absolutely imperative principles taken either from domestic substantive provisions or from international convention texts of application in the forum. Secondly, because the principles that are situated on the edge of the circle can be distinguished, in turn, both from the private international law's own imperative rules as well as from the exemption of international public policy that is inscribed in the first circle.

395. This provision aims to establish a limit or exception that the judge or authority of the forum must generally observe, regardless of the multilateral conflict rule that has determined the referral to the foreign legal system and regardless of the legal system of another State which, accordingly, was applicable to the case. The limit or exception, that the provision does not articulate absolutely, then refrains from using incisive terms such as “shall not apply in any case”, preferring instead the expression “shall not be applied”, which permits the game of the so-called “attenuated effect of public policy”. This solution, with wide-ranging content in Europe519, is contained in article 21 of the Cuban Civil Code and article 15.II of the Civil Code for the Federal District of Mexico520. Venezuela also leans towards a restrictive position by providing in article 8 of its Private International Law Act of 1998 that the provisions of the foreign applicable law will be excluded “when their application produces results manifestly incompatible with the essential principles of Venezuelan public policy”. Other countries of the OHADAC area such as Colombia, Nicaragua, the Dominican Republic521 or Panama remain silent on this institution.

The provision relates to the final phase of the process of application of the conflict rule, once that it has been referred to a foreign legal system. And it contains the legal response to a specific question that may arise at this time before the Caribbean judge or authority: the possible contradiction of the provisions of this legal system with the “public policy” of the forum. The response essentially consists in not applying the foreign law which, otherwise, must serve as a basis for deciding on the claims of the parties.

396. From this special perspective, which requires the implementation of the method of attribution, public policy offers the following characteristics in the private international law of each national system:

  1. Exceptionality. The foreign law claimed must imply a “manifest” contradiction with fundamental legal principles, and not a mere content reference. For that reason, the present article includes the expression “manifestly incompatible” following the model of the Private International Law Conventions issued by the Hague Conference522 and of the CIDIP523 which incorporate this clause for diluting the rigour of the rule. Ultimately, the foreign law has to imply a “manifest” contradiction with fundamental legal principles, and not, as has been indicated, a mere difference of content.
  2. Territoriality. The public policy is characterised by territoriality; that is to say, the rejection of the foreign law operates only regarding the public policy of the forum. This is a notable point of difference in respect of the positive dimension of the public policy, in the sense of permitting the application of imperative rules of the lex causae or including the laws relating the third legal system.
  3. Relativity. The public policy is imbued with a note of relativity, which occurs both in time and space. This latter case implies that the intervention of the public policy largely depends on the proximity of the legal relationship discussed to the forum; to increased connection, greater public policy options.
  4. Temporality. As regards the impact of the time factor in the configuration of the public policy, the unanimous solution is that of its assessment by the judge at the present time; i.e. it must be in accordance with the “current status” of public policy524.

397. The reference to the “foreign law” is defined negatively, as opposed to the legal system of the forum. In this way, the “foreign law”, as a general legal notion:

  1. comprises all the rules that do not form part of the said legislation of the forum. The provision alludes to the legal system of a foreign State, whether it concerns the legally unified system or that of a State in which “more than one normative system [...] coexist” (vid. infra. article 70 of the Model Law) which obviously excludes both the rules of the public international law, created by the consensus of the States, and, in principle, the rules of the so-called lex mercatoria, arising from usages and practices of private individuals in international commerce.
  2. does not take into account the status of the foreign law - constitutional rule, ordinary law or infralegal rule - as well as its civil, commercial, etc. nature, and although the provision relates to the foreign “law” and it appears to presuppose a written rule, its real scope is wider, since it should not be ignored that in certain legal systems the regulation of many matters is the work of the customary (unwritten) law and, in others, the statutory law coexists with judicially created law.
  3. may be considered from a more particular perspective since within any legal foreign legislation two groups of rules should be distinguished: the rules of private international law, with their particular function for the regulation of the conflicts of laws (“conflict rules”) and, on the other hand, the larger group comprised of the other substantive, civil, commercial etc. rules, without prejudice to the possibility of also including the procedural rules, despite the fact that they are generally categorised as “adjectives”. Of these two groups, it is the second group which is considered in the provision and, consequently, it is referred in particular to the foreign “substantive” law. They are rules in the foreign system that substantively govern the matter included in the case of the conflict rule of the forum - successions, divorce, donations, etc. - with the exclusion of the private international law rules of this system (vid. infra, article 67 of the Model Law).
  4. offers a complementary aspect since the negative consequence provided in the provision operates only if the Caribbean judge or authority has observed the existence of a contradiction - whose scope will then be specified - between the foreign substantive law and the public policy of the forum. This necessarily implies that not only a specific foreign legal system applicable for resolving the case has been determined in advance, but also that the validity, the substantive content and the interpretation of the substantive foreign law applicable have been established sufficiently, in accordance with the provision (vid. supra, articles 63 and 64 of the Model Law). Thus, only if the Caribbean court or authority knows sufficiently the foreign law will it be able to subsequently observe a possible contradiction with the “public policy” of the forum.

398. The present article relates to the possible contradiction between the foreign substantive law and the public policy, a notion that constitutes a “vague legal concept” through which the difficulties for the interpreter arise when trying to define what this notion is all about. The interpretation will entail at least two operations. Firstly, it is necessary to clarify exactly what is the meaning of “public policy” in the legal system of the forum (i). Secondly, it is necessary to know how the observance of the two normative elements in question is carried out, for establishing whether or not the foreign law is contrary to the “public policy” and, therefore, implement its application to or inapplicability of the case (ii).

  1. The concept of public policy. It is not the prerogative of the present article. The legislator also employs it in many other rules of the Caribbean legislation that belong to areas very different from that of the present Law. And, even if we limit ourselves to the private international law rules, the conclusion that is reached is the same, since in their different dimensions there are rules that also refer to the “public policy”. Indeed, it is sufficient to observe that if the same expression, the “public policy”, is widely employed by the national legislators, above all in the area of the administrative rules. Here, specifically, the concept is connected with the protection of a specific social situation, which is indispensable in any national community: order and public peace. For that reason, from a negative dimension, one alludes to the prevention and sanction of those acts or conducts liable to impair the public policy. Logically, we also find this dimension in the area of the penal rules. Under this meaning, the public policy expresses a particular situation of social peace and security in a national community. This situation or state of the society is what permits both the normal development of the coexistence and the human activities as well as the normal functioning of the institutions and the exercise of the rights by private individuals. But if it is taken into account that this situation of social peace and public security is considered a legal right or a legal value of particular importance for the national legal system itself, it should come as no surprise that it is the object of special protection through administrative and penal rules that prevent or sanction that conduct that may impair or disrupt this situation.
  2. Public Policy in the normative sense. From this perspective the “public policy” constitutes the ideal system of values, which inspires the entire legal system. If you will, it is all of the fundamental conceptions of the law that characterise a national community, at a certain time in history. However, if these legal values or fundamental conceptions of the law constitute the assumptions that inspire the entire legal system in a national community, the necessary consequence is its absolutely indispensable and inalienable nature for the legal system itself. And this characterisation leads to a further consequence, which is no less important: in its normative significance, the public policy not only has a positive function, as element inspiring the entirety of the system. Also, necessarily, it must perform an exclusionary or negative function: the function of preventing usage or custom and the acts or transactions of the private individuals, carried out in the exercise of their private autonomy, from being contrary to these fundamental legal values. In parallel, it aims to prevent them from being integrated into the national legal system and, therefore, the foreign rules, decisions or judgements - i.e. created outside of the legal system itself - that are incompatible with the principles or values of the legislation into which they have to be integrated can have legal validity.

399. The present article, as has been stated, requires a referral to the foreign law, declared applicable by a multilateral conflict rule of the forum (of those contained in Section I, of Chapter I of Title III of the Model Law) and its objective is to exclude the application of the foreign law that is contrary to public policy. This implies a negative or exclusionary function that is justified by the protection of the fundamental legal values of the legislation of the forum; and it is precisely through its negative or exclusionary significance that it may be considered to constitute the legal proceedings of purification of any foreign regulation that undermines these fundamental values, i.e., a security filter or valve placed in front of the foreign law. But it should be stressed that if this provision produces a principal effect, the “purification” of the foreign law, in light of the fundamental legal values of the legislation of the forum, thus ensuring its integrity and its internal coherence, it also indicates, in return, what is the further effect of this exclusion. Specifically, its second paragraph provides that once the incompatibility is admitted, “the law indicated through other connecting factors possibly provided for the same conflict rule shall be applied and, if this is not possible, the Caribbean law shall be applied”525.

Commentary

Article 69

Mandatory rules

1. The provisions of Chapter I of the present Title shall not restrict the application of the rules whose observance the Caribbean considers essential for the protection of its public interests, such as its political, social or economic organisation, up to the point of requiring their application to any situation comprised within their scope of application.

2. Caribbean courts may, where they consider it appropriate, give effect to the mandatory rules of another State closely connected with the legal relationship.

400. The so-called “positive aspect” of public policy is confounded with the so-called mandatory substantive rules, which is used, together with other arguments (national security, national economy, etc.) as the rationale behind the use of national substantive rules in a situation of private international transactions526. They are so-called public policy rules, in the sense of domestic law rules of necessary application regardless of what foreign elements might exist in the case to be regulated, which are governed autonomously in paragraph 1 of the present provision to the mandatory rules of the forum527 and in paragraph 2 to the foreign mandatory rules528.

Although operating exclusively in the ambit of the “conflict of laws” or of the determination of the law applicable to private international transaction situations, the question arises as to the relationships of the general public policy clause of article 68 of the Model Law with other rules of a national private international law system which, due to being intended also for the protection of fundamental values of their own legal order, are imperatively applicable to these situations by the judge of the forum, regardless of the law governing the act or contract of the private individuals; that is to say the so-called “rules of necessary implementation”, “rules of immediate implementation” or “mandatory substantive rules”. Within the distinct dimensions offered by the public policy in private international law, reference should be made now to two very specific ones: on the one hand, their use, together with other arguments (national security, national economy, etc.), as the rationale behind the application of national substantive rules to a relationship of private international transactions; on the other hand, and more commonly, the notion of public policy is used as a functional corrective of the method of attribution (article 68 of the Model Law). However, this distinction, which appears so clear, is not so in the national court rulings so that it has been considered convenient to include an autonomous article dedicated to the first of these dimensions.

Of course, the general clause of article 68 operates only once the referral to the foreign law has been made in accordance with the provisions of a Caribbean multilateral conflict rule. In this manner, the rule that includes this general clause is exclusively connected with these multilateral conflict rules; it is considered by the doctrine that the intervention of the “public policy” is a possible corrective of the “functioning” of those rules within the process of application by the judge or authority of the forum. In exchange, the mandatory substantive rules for the private international transaction relationships provided in each national private international law system will have to be directly applied by the judge of this system, regardless of the legal system that governs the situation, and, therefore, regardless of the law designated by a multilateral conflict rule.

401. From the currents focusing on the so-called “methodological pluralism”, in recent years one has insisted on the revitalisation of the role of the forum and on the insufficiencies of conflict rule method. It is evident that, at the present time, the protection of the “internal order” is one of the duties that the States must comply with as a matter of priority, including in the very interest of the “international order”529 and it should not be ignored that in all the national systems and, more specifically, in the area related to the law of the family or in the law of contracts, a certain type of rules exist which are imposed regardless of a possible national law or a law designated by the parties.

This type of rules is qualified by the doctrine with the expression “mandatory substantive rules” or, more extensively, “substantive rules of mandatory application to private international transactions”. This concept constitutes an all-encompassing notion, which usually affects or relates to provisions of private law and of a highly public nature, and which reflects, more than the own content or function of the rule, its effect or scope: the circumvention of the conflict rule.

We are faced with a series of provisions of the law of the forum, both of public law as well as of private law, whose interest for the state-owned company is too relevant to compete with the foreign laws. As a consequence, their scope of application is determined, fundamentally taking into account the objective which they pursue, and their application tends to be categorised as “immediate” or “necessary”, because they operate, in principle, outside of the process of attribution. What is important in these rules is not the degree of leeway or prohibition that they contain, but the element of national organisation that they reflect. This organisation must be affected as a result of the intrusiveness of the foreign law and this justifies that their application is “normal”, that is to say, that it does not present as an exception to the application of the foreign rules530.

402. With regard to such circumstances, it is necessary to define the species or subspecies that are induced from all of substantive rules of the forum of mandatory application to cases of private international transactions531:

  1. Firstly, reference should be made to the so-called “police and security laws” and “public policy laws” that respond to the need for a uniform treatment both of domestic and international situations connected with the territory of the forum. The mandatory nature of these rules is underpinned by the satisfaction of collective interests which explain the nature of public law of the provisions categorised as such: penal law, procedural law, economic law, etc. The growing interventionism of the State in matters traditionally subject to the private law through their connection with the protection of individual interests has given rise to a functional extension of the scope of action of the overriding mandatory rules, whose paradigm is the wide sphere of action today offered by so-called “economic public policy”. This means that, in such varied areas as certain conditions of employment contracts or the law of competition, the public policy rules are community provisions, whose objective is rooted in an intracommunity interest.
  2. Secondly, not of all the mandatory substantive rules enjoy the same degree of mandatoriness. Their force, determining their direct application, depends on the degree of connection of the case with the forum. If the connection of the case with the Caribbean territory is minimal, in such a way that the possible application of a foreign law is not liable to jeopardise the public interest which underpins the substantive rule of the forum, it lacks a vocation to be applied to the cases of private international transactions. In other words, a teleological interpretation of the rule leads to its inapplicability. However, this requirement of connection with the forum cannot be extended to all mandatory substantive rules. It normally acts in relation with the overriding mandatory rules or economic public policy rules. It is absurd to seek to apply the rules of protection of the Caribbean market (maximum prices, competition regulations, protection of industrial property) to international cases that do not produce effects in the Caribbean market. However, we can say that absolutely mandatory substantive rules exist, i.e. whose application cannot depend on the degree of connection of the case with the forum. It is those rules that guarantee respect for the fundamental rights contained in the Constitution. A Caribbean judge may not pronounce a judgment based on provisions contrary to the gender equality, religious freedom or the protection of minors, to state only three examples.
  3. Finally, the distinction between absolutely and relatively substantive mandatory rules should be emphasised. The mandatory nature of the latter is rooted in the obtaining of a substantive result favourable to certain persons or situations (consumers, workers, minors...). Their application is only justified then if the foreign law designated by the conflict rule is not as or more favourable to the achievement of this objective than the Caribbean law.

403. The interventionism of the State in matters traditionally subject to private law through their connection with the protection of the individual interests has given rise to an functional extension of the scope of application of the overriding mandatory rules, a circumstance that has contributed to blur the profiles of the distinction between overriding mandatory rules, mandatory substantive rules and public policy in general.

In this context is necessary to refer to the so-called “economic public policy”, a concept which, from a positive point of view, characterises a large part of the mandatory substantive rules. This principle has great quantitative and qualitative importance and, in the international framework, is generally translated into a defence mechanism of the national market conditions and the entire national economy. The content of the competition law, of the general terms and conditions of contracts, of consumption or of the bankruptcy situations in the domestic law, may fill the content of this notion, permitting the circumvention of the foreign law which admits certain practices, rights or contractual clauses that affect the market conditions of the State of the forum.

By definition, the economic public policy requires, in order to act, a certain spatial connection of the case with the legislation of the forum, since it would not make any sense to use it if the application of the foreign law does not produce toxic effects in the domestic market.

404. Paragraph 1 of the provision considers the application of the mandatory rules of the lex fori. It cannot be ignored that the rules of intervention of the forum tend to contain a criterion of spatial application, which is more or less express, that reflects a certain voluntary restraint in its application, reduced to the cases impacting on the interests of the market or the economic policy of the State where the court hearing the case is based. On the other hand, the mandatory rules are not necessarily rules of national law, since they can emanate from other national systems or proceed from a regional economic integration mechanism in areas such as free competition or the rules of protection (of the insured party, the worker, the consumer regarding abusive clauses, etc.), whose consideration, in view of their scope of application is not only feasible but obligatory.

Taking into account this situation, paragraph 2 of the present article seeks to obtain an effective decision in other States, diluting the factor of relativity that introduces the variety of conflicting regulations according to the forum in which the dispute is taking place, respecting the requirements and the interests of the States and their intervention policies in the contractual matter. Its direct antecedent is article 11.2 of the CIDIP Convention on the Law Applicable to International Contracts of 1994 according to which, “It shall be up to the forum to decide when it applies the mandatory provisions of the law of another State with which the contract has close ties”.

This paragraph takes into account situations of direct or mandatory substantive regulatory rules in third countries (that is to say, rules not relating to the forum nor the law of the contract designated by the conflict rule), since the close connection that they have with the situation and the force of their interest in making it effective. In this way, a uniform and thus effective solution is obtained, respectful of the legislative policies interests and objectives that are attainable532.

The possibility to apply the mandatory rules of a third State must take into account the nature and object of such provisions, as well as the predictable consequences of their application or non-application. In the decision to apply the mandatory rules of third States it is fundamental to identify the underlying degree of protection or public interest of the mandatory rule, since its application should only be done when that value or objective is recognised as legitimate in the judge's own legal system: protection of the consumer, free competition, environment... On the other hand, the application of rules of intervention that overturn the values expressed in international economic law or in the law of the forum is not admissible, a fact which tends to be relatively habitual if this concerns rules of economic retaliation or which strictly pursue the economic safeguarding or protection of the State to which they belong533. It is more difficult to determine precisely what consequences of the application must be considered by the judge. Certainly, the consequences on the contracting parties cannot have an absolute importance, given that the application of these rules is based on a public interest that justifies the limitation to the freedom of choice.

Commentary

Article 70

Legal orders with more than one system of law

1. If more than one normative system with territorial or personal jurisdiction coexist in the legal system of the State designated by the normative provisions of the present law, the applicable law shall be determined in accordance with the criteria used by that legal system.

2. If such criteria cannot be identified, the normative system with the closest connection to the specific case shall apply.

405. The States with more than one system of law are characterised by the existence, within their legal system, of a plurality of laws or legislations liable to regulate the same situation and consequently generate domestic conflicts of laws534. Such conflicts may occur, in the first instance, in the federal States (United States, Australia, Canada, Mexico, Switzerland, Yugoslavia, etc.), but also are particular to unitary States with a certain degree of legal decentralisation (United Kingdom or Spain). Likewise, regardless of the territorial organisation of the State, systems with more than one system of law ratione personae may exist, as a result of the distinct legislations applicable due to the religious, ethnic or tribal status of the subject (Greece, Algeria, Morocco, Sudan, Egypt, Tunisia, Indonesia, India, Pakistan, Syria, Iraq, Jordan, Libya, Lebanon, etc.). In all these cases, the referral of a conflict rule of the forum to the law of a State with more than one system of law raises a problem of application consisting in determining, within this State, which specific substantive law, among the different ones that coexist, must be applied. It is the problem known as “referral to a system with more than one system of law”.

This problem must be differentiated, however, from the solution of the domestic conflicts of laws in the framework of legal relationships that do not go beyond the borders of a State, that is to say that do not have an international nature. The problem of the referral to a system with more than one system of law refers solely to the problem raised in the case of international conflicts of laws, in which the referral of the conflict rule of the forum designates the application of the law of a State with more than one system of law. This problem, thus, as well as its solution, must not be confused with the particular problems and solutions of the domestic conflicts of laws and that operate outside of the problem of the referral to a system with more than one system of law, as much as its solution can be circumstantially identical.

406. The legal solutions to the problem of the referral to a system with more than one system of law, in particular which relates to the option for a certain legislative technique, depends to a large extent on the type of conflict concerned. For these purposes, one tends to distinguish between inter-territorial and inter-local conflicts of laws and inter-personal conflicts of laws. In the inter-local conflicts of laws, the plurality of laws is based on the legal decentralisation of the State for territorial reasons (federal States, unitary but decentralised States or States which temporarily maintain a legal plurality motivated by a territorial change or annexation). In the personal conflicts of laws, the plurality of laws obeys the presence of distinct person-based legal systems, by reason of ethnicity, religious confession or tribal affiliation of the persons to whom the rule was directed.

Another classification of the cases of referral to a system with more than one system of law distinguishes between referral ad extra and ad intra535. The first case is the usual case and includes all the cases in which the conflict rule relates to a system with more than one system of law, either foreign or the own system of the forum, and it is necessary to determine the particular law applicable within this. The special case special of the referral ad intra occurs as a result of a combination of the case of the referral to a system with more than one system of law and the operation of the renvoi. This is the case in which the conflict rule of the forum relates to a foreign law, whose conflict rule determines the jurisdiction of the legal system of the forum, this latter being a system with more than one system of law.

407. The different solutions that may be given to the referral to a system with more than one system of law have been analysed by the doctrine using a very varied terminology536. Basically, two systems are considered for solving the problem of the referral to a system with more than one system of law.

  1. The direct referral makes it possible to use the connections of the conflict rule for identifying directly the local legislation applicable to the litigious case, presuming that the connection does not directly designate the law of one State, but the law of the specific territory of that State. This system has two limitations. Firstly, it is only operative when it concerns connections of a territorial nature (place where a property is located or of the conclusion of a contract, residence or domicile of the parties, etc.), which is unfeasible when the conflict rule contains a strictly personal connecting factor (v.gr., the domicile or habitual residence), which facilitates the localisation of the territory of the case within the system with more than one system of law. Secondly, even if it concerns territorial connections, the method of direct referral is inappropriate in the case of referral to a person-based system with more than one system of law, in which case the application of the local domestic law is not appropriate or sufficient for resolving an inter-personal conflict of laws, whose origin is not found in the necessity of applying a distinct law by reason of the territory, but in the plurality of laws motivated by the distinct status of the subject.
  2. The indirect referral, on the other hand, provides a medium-term solution to the problem of the referral to a system with more than one system of law. Thus, if the conflict rule relates to a State with more than one system of law, the local or specific personal legislation that must be applied will be designated by this State's own domestic rules on conflicts. The assessment of the applicable law in this system implies a two-stage legal operation: firstly, the designation by the conflict rule of the forum of a State with more than one system of law; secondly, the consultation of the domestic rules on conflicts in this State for discovering the substantive law ultimately applicable.

408. This latter is the system pursued by the present article537. The indirect referral is introduced as a very appropriate solution for resolving the referral to a person-based system with more than one system of law, as well as for the referral to a territory-based system with more than one system of law operated through the connection.

In the case when in the State with more than one system of law no express rules on the solution of domestic conflicts of laws exist, it is necessary to cover the gap based on subsidiary connections and the solution provided by the provision, continuing the solutions adopted in comparative law and in the convention-based law, consists in using a final connection with a general aim, the application of the law that has a closer connection with the case or the parties involved538.

The provision establishes a generally applicable system of indirect referral, with the already mentioned drawbacks if the system with more than one system of law claimed does not have express rules for resolving the domestic inter-local or inter-personal conflicts, or indeed its rules may not be applied in the absence of sufficient proof or because they lead to a result manifestly contrary to the objective or substantive result pursued by the conflict rule, when this is found to be substantially oriented. In such cases, it is necessary to arbitrate a subsidiary solution. The subsidiary application of the lex fori should be excluded, a priori, at least when this is possible, by virtue of the analogy, find an alternative solution that respects both the substantive criteria of the conflict rule system of the forum, as well as the integral application of the foreign substantive law.

The Model Law chooses the referral to a system with more than one system of law based on territory from a distinct connection to the nationality, which seems to be the simplest the solution in such cases, as the system of indirect referral may be perfectly substituted by a system of direct referral, since the territorial connections established in the present conflict rules would permit us to identify immediately the local law applicable within the foreign system. In these cases, the application by analogy of the connections directly appears the only reasonable solution, or at least one more reasonable than the alternative of having recourse indiscriminately to the lex fori, since the connection provided in the present conflict rules is presumed to designate the law that is considered most formally connected to the case with regard to criteria of proximity, or more apt for regulating it based on a substantive criterion.

Commentary

Article 71

Acquired rights

The legal situations validly created in a State in accordance with all the laws with which it has a connection at the time of their creation shall be recognised in the Caribbean, provided that they are not contrary to the principles of its public policy.

409. The questions specific to the applicable law generally arise in the scope of the birth, exercise and extinction of the rights. However, when facing the question of the acquired rights the perspective changes since it arises at a subsequent stage, and more than a problem of applicable law, it is one related to the scope of extraterritorial validity of these rights, specifically, to its validity in States other than where these rights were constituted539. The realisation of justice in the scope of the international legal transaction has traditionally justified their recognition provided that two circumstances occur: applicable law and extraterritorial validity. In the first case, the right must be acquired in accordance with the law designated by the conflict rule of the forum; and, in the second case, this right must have already been generated in accordance with this law540. Such recognition, however, finds certain exceptions, among which are the inexistence of the institution that has produced such rights in the country in which they are invoked and that these are contrary to the public policy. It is also pointed out as a ground for exception that the rights have been acquired abroad in violation of the law, that is to say in violation of the foreign law, which again is contrary to the public policy of the forum541.

The institution studied is relevant when it is admitted that a right may be validly acquired in accordance with a legislation other than the one normally applicable or indeed, when the lex fori has constructed a special conflict rule with the sole purpose of facilitating the recognition of rights acquired abroad. Thus conceived, it may be used as a basis for admitting an exception to the functioning of the conflict rules of the forum. In other words, the admission of the legal situations, once they have been validly created in a State in accordance with its laws, is justified in that the rights thus created do not have to be diminished or ignored due to the fact that, according to the transnational movement of these situations, these are submitted to a legal system of a State other than the one whose legislation prevailed at the time of its birth. This is intended to guarantee the continuity of these legal situations in space.

410. The spatial element that characterises the exception of public policy is combined with the temporal element in the treatment of the rights acquired. Theoretically, the situations already consolidated within the sphere of a foreign system, which are the result of the immediate effect of the said legislation, do not show the same vulnerability to the exception of public policy (article 68) as those situations which, although originating under the rule of the foreign law, continue deploying their effects when they come in contact with the forum. The legal relationships that do not have a durable nature, that is to say which are consolidated in a time span (transfer of ownership, validity of the act of adoption, etc.) tend to avoid the exception of public policy for reasons of both a technical and functional nature. And this circumvention operates both from a formal perspective, given that at the time of being consolidated there was no spatial connection with the forum, as well as at the functional level, because a different solution would be contrary to the desirable minimum legal certainty in the international order.

It should not be forgotten, however, that the presumed retroactive nature of the public policy with regard to the rights acquired has served to articulate for part of the doctrine a solution to the “change of connecting factor” favourable to the application of the last law. In this respect, the private international comparative law has offered particularly illustrative historical examples of a retroactive application of the public policy to the detriment of the rights acquired. Although it is advisable therefore to avoid a corrective application in respect of those rights acquired under a foreign legal order, which, at the time of being consolidated, did not have a sufficient connection with the legal system of the forum. This does not preclude placing the exception of public policy before those effects derived from this legal relationship which continue deploying their effects in time and are likely to enter into contact with the system of the forum, violating the principles that inform the international public policy.

411. Originating in the British case-law at the beginning of the nineteenth century, it is not frequent to find a response to the question under discussion in the national systems of the OHADAC area, with the exception of the Private International Law Act of Venezuela542 or the Mexican Civil Code543, but it has been incorporated into other systems544 and into the Inter-American codification as it is considered that it is essential not only for the flexibilisation of the conflict rule method, but also for the achievement of its objectives.

  1. Initially, the Bustamante Code dealt with this question by establishing in its article 8 that “The rights acquired under the regulations of this Code have full extraterritorial validity in the States contracting parties, unless a rule of international public policy precludes any of its effects or consequences”. Therefore, the recognition of the rights acquired under a foreign law constitutes the rule and its exception relates to those cases where such admission could flagrantly violate fundamental principles of the legal system of the contracting State involved. Numerous critics have been critical of a similar approach, and it should be pointed out that it excludes the recognition in accordance with the competent legislation if through this the international public policy established by the substantive law of the forum is infringed, thus closing off all of the difficulties that could arise from the rights acquired545.
  2. Not without extensive debate, article 7 of the CIDIP Convention on general rules of 1979 was drafted in the following form “Juridical relationships validly established in a State Party in accordance with all the laws with which they have a connection at the time of their establishment shall be recognised in the other States Parties, provided that they are not contrary to the principles of their public policy (public order)”. This drafting supposes an evident improvement of the text of article 8 of the Bustamante Code by recognising the rights acquired in accordance with all the competent “laws”. This constitutes a more liberal interpretation, which is more adequate to the objectives of private international law. This rule additionally had the virtue of substituting the controversial expression “rights acquired”, by that of “legal situations validly created”, this objective being wider by encompassing a broader range of different situations than the rights strictly speaking. Its content is made without undermining the interests of the forum, which are regarded as the express inclusion of two exceptions: that the situations have a connection at the time of their creation with the legal system where they have been constituted and that it is not contrary to the principles of its public policy546.

412. The present article brings together the requirements of conceptual and terminological precision indispensable for granting legal certainty. For that reason, it may be considered as an essential contribution to the process of convention-based unification of the private international law of the hemisphere547. Therefore, with similar purposes it incorporates the text of article 7 of the Convention of the CIDIP on General Rules of 1979. The solution adopted thus consists of applying the law declared competent by all the legal systems connected with the factual case. As may be observed, the terminology of the “rights acquired” has been superseded by the use of the term “validly created legal situations”, originated though the need to include not only the legal acts but also any class of events that produce consequences in the world of the law. It is intended that in the future interpretations of the provision it can give rise to a negative effect for the normal functioning of the conflict rule through a possible rejection of the foreign law claimed.

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