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.

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.

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.

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.

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.

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.

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.

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.

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.