RAFAEL VEINTIMILLA, DELEGADO DE ECUADOR
I
In the first plenary session of the Sixth
Inter-American Specialized Conference on Private
International Law (CIDIP-VI), held on February 4,
2002, Committee III was assigned item 3 on the
agenda: Conflict of laws on extracontractual
liability, with an emphasis on competency of
jurisdiction and applicable law with respect to
civil international liability for transboundary
pollution.
The first meeting of Committee III was held on
Tuesday, February 5, 2002. On that occasion, its
officers were elected. The Committee elected its
Chair, Ambassador Juan Manuel Castulovich (Panama),
its Vice Chair, Dr. Berta Feder (Uruguay), and its
Rapporteur, Dr. Rafael Veintimilla (Ecuador).
II
Initiating the Committee’s work, the head of the
delegation of Uruguay, Ambassador Didier Opertti,
made a presentation on the topic: "Conflict of laws
on extracontractual liability, with an emphasis on
competency of jurisdiction and applicable law with
respect to civil international liability for
transboundary pollution." Ambassador Opertti
emphasized that the proposed draft is intended to
address not state liability but rather the situation
of the private operator. He expressed concern about
the lack of advancement in the field of private
international law in the inter-American system. In
closing, Ambassador Opertti invited the rest of the
delegates to express their opinions so as to
maintain an informal exchange of ideas on the need
to try to solve questions relating to applicable law
and international competency of jurisdiction with
respect to extracontractual liability.
The delegate of Mexico shared the same concern
regarding the future of CIDIP, in view of the lack
of private international law instruments in the
Hemisphere.
The United States delegation stated its view that
there are some interesting successes in the field of
private international law in terms of new techniques
and approaches. Although the United States
delegation was in favor of an instrument on
transnational pollution that addresses civil
liability (and not state liability), it found that
the draft proposed by Uruguay needed to be clarified.
It expressed some concerns about Articles 2 and 3 of
the draft Convention as well as a variety of issues
such as scope of application, competency of
jurisdiction, applicable law, jurisprudence,
environmental liability, constitutional issues,
etc. In brief, the delegation of the United States
proposed that these topics be kept on the agenda for
future consideration, suggesting that this was not
the appropriate time to pursue the issue.
The delegate of Canada expressed some concerns about
the draft Convention proposed by Uruguay, whose
discussion or negotiation he felt was premature.
The delegate found that the draft needed deeper
analysis and emphasized that the global nature of
environmental issues required discussion in an
international forum rather than a regional
organization. By way of example, he noted that the
Hague Conference had been addressing this matter but
had suspended further discussion of it.
The delegates of Uruguay and Mexico noted that the
topic under study had been formally included on the
agenda of CIDIP-VI by the General Assembly at its
most recent session, after being proposed during
CIDIP-V, held in Mexico in 1994. Moreover, the head
of the Uruguayan delegation explained that while
bilateral agreements have solved a variety of
problems between neighboring countries, the
multinational character of environmental issues
requires the adoption of multilateral instruments
such as the one proposed. He said that he saw no
reason why a subject like this should not be
included on the agenda of a regional body like the
OAS, even while it was being examined by the Hague
Conference, in which not all OAS member states
participate. The delegation of Uruguay presented
documentation to the Secretariat showing that the
Hague Conference is still seized of this subject.
In addition, he applauded all the efforts to advance
the rapprochement of civil law and common law and
advised that the issues addressed under the draft
Convention could apply to a variety of matters, such
as unfair competition, fraud, etc.
The Chair of Committee III, Ambassador Juan Manuel
Castulovich, requested the Vice Chair of the
Committee, Dr. Berta Feder, to arrange for
consultations with the delegations to find a
practical and expeditious way to work on this topic.
To this end, an informal working group was formed.
III
The second meeting of Committee III was held in the
Padilha Vidal Room on Thursday, February 7, 2002.
The Chair of the Committee reported on the work of
the informal working group and asked Dr. Berta Feder
to present the working group’s conclusions. The
main contribution of this group was a proposal for
minimum and general guidelines in the form of a
resolution.
The United States delegation spoke briefly on the
items discussed at the informal meeting and
underscored the need to debate extracontractual
liability in general, not only with respect to the
environment. At the same time, it said that some
delegations did not want a convention to be adopted;
rather, they favored a search for mechanisms to
assist states in examining the matter. The
delegation of the United States considered the
guidelines proposed in this resolution to be
relevant, but nevertheless suggested that they be
studied. In respect of operative paragraph 2, it
considered that it would not be appropriate for the
Inter-American Juridical Committee (hereinafter “IJC”)
to draft a convention and submit it to the General
Assembly, arguing, inter alia, that most of that
Committee’s members were specialists in public
international law, not in this field. Moreover, the
delegation thought it was too soon to start drafting
an international instrument. Finally, the
delegation stated that it should be CIDIP that does
the drafting. Consequently, it suggested that the
IJC prepare a report, not a draft convention, for
2004, which would be presented to the General
Assembly.
The delegation of Canada stated that the guidelines
presented in operative paragraph 1 were appropriate.
Nevertheless, it insisted that preliminary work was
needed before the adoption of an instrument in this
field. Consequently, it proposed deleting the
heading to operative paragraph 1 since it is
reflected in subparagraph (a), whereas in respect of
paragraph 2 it suggested that the findings of the
experts be submitted for future consideration to the
General Assembly.
The delegation of Uruguay admitted that there had
been a mistake in the title of the document
presented and that it should be altered to match the
contents of the guidelines. The head of that
delegation, Ambassador Didier Opertti, then reviewed
the work done by Committee III since its inception
in 1996. He acknowledged that progress had been
made in the other two topics and had shown how this
CIDIP had made a genuine contribution. However, he
said there was a need to strive for more commitment
within this Group and that this should be manifested
in a rapprochement between common law and civil law.
He also said it would not be right to undermine the
legitimacy of the IJC, which had been established by
the OAS and was composed of experts from member
states. Finally, he conceded that the subject is
highly complex, which was why a meeting of experts
had been suggested to assist the IJC in its
endeavors. He explained that the subject referred
to would be persons and not states. Consequently,
he considered the proposed amendments reasonable,
given that this topic is under discussion in the
Hague Conference as well.
The delegation of Colombia, after stating that it
had come prepared to negotiate a draft convention,
supported the resolution proposed by the Chair. It
also placed on record its position on Article 5 of
the original draft, a matter that should be examined
in the study the IJC will prepare on the subject.
Observing that there were no objections to the title
of the resolution or its preambular paragraphs, the
Chair suggested that the Committee proceed to
negotiate the heading of operative paragraph 1 and
paragraph 2.
Likewise, a consensus was noted regarding the scope
of the topic, namely, that none of the assumptions
pertaining to extracontractual civil liability would
be excluded.
After negotiating and seeking consensus on the
precise terminology of the resolution, the
delegations accepted the version in document OEA/Ser.K/XXI.6,
CIDIP-VI/Com.III/doc.1/02/rev. 4. The title agreed
upon for the resolution adopted was as follows:
“Applicable law and competency of international
jurisdiction with respect to extracontractual civil
liability.”
Summary of the negotiations on operative paragraph 1
and paragraph 2
Heading of operative paragraph 1:
The Canadian delegation withdrew its proposal and
supported a discussion of the changes proposed by
the United States.
The delegation of Brazil questioned the need to
prepare a general draft convention. Nevertheless, it
favored holding a meeting of experts and suggested
introducing into operative paragraph 1 the phrase
“of a model law” after the word “drafting.”
The United States delegation proposed adding the
phrase “to conduct future studies of the topic” to
complement the phrasing suggested by Brazil.
The delegation of Uruguay reformulated the two
previous suggestions and, picking up on an earlier
suggestion made by the delegation of Mexico to use
the term “instrument” rather than speak of a “model
law or convention,” suggested the following wording:
“To continue work on the subject, and in particular,
to adopt, inter alia, the following guidelines to be
taken into account when drafting an international
instrument ... .”
The United States delegation suggested an addition
to Uruguay’s proposal, since it did not consider it
necessary to adopt an instrument. It therefore
proposed replacing “drafting” with “considering.”
“To continue work on the subject and, in particular,
to adopt, inter alia, the following guidelines to be
taken into account when considering an international
instrument...”
The delegation of Uruguay accepted the new proposal
of the United States.
The Brazilian delegation asked that the title of the
document be added to the introductory paragraph of
operative paragraph 1, which was accepted. It now
reads:
“To continue work on the subject and, in particular,
to adopt, inter alia, the following guidelines to be
taken into account when considering an international
instrument on the Applicable Law and Competency of
International Jurisdiction with respect to
Extracontractual Civil Liability.”
Operative paragraph 2:
The delegation of the United States considered that
the work of preparing a convention on international
law should be done by CIDIP and not by the IJC. It
therefore suggested that the IJC be asked for a
report and not a draft convention.
The delegation of Uruguay noted that the report
requested would be tantamount to an opinion, which
would not prevent the Inter-American Juridical
Committee from including an instrument or draft
convention, should it see fit.
The delegation of Colombia proposed, to facilitate
consensus, that the outcome of the IJC’s work be an
“international instrument,” which would preserve the
language of the first paragraph. This suggestion
was seconded by Brazil.
The delegation of Canada questioned the procedure
whereby the IJC is instructed to submit said
document to the General Assembly, and said it
favored using the word “considering.”
Special guest Professor Pablo Enrique de Rozas of
the University of Mendoza (Argentina) underscored
the importance of the topic and the need to make
headway in work on extracontractual civil liability,
since major studies already existed on the matter.
The Chair then proposed that the studies be remitted
by the experts directly to the IJC.
The United States delegation stated that the IJC
should have the necessary freedom to conduct its
work in the most appropriate manner. It therefore
suggested requesting a “report with recommendations.”
The delegation also commented on the lack of depth
in the analysis of this topic and the need for
preparatory studies.
The delegation of Uruguay objected to the new
phrasing, as it considered that the treatment of
this topic could become a long and endless process.
The delegation of Ecuador suggested reversing the
proposed order of the procedure and directing all
inputs now available and any made available in the
future to the IJC, which would then do preparatory
work and present a report, accompanied, if need be,
by a draft instrument, for consideration by the
meeting of experts, which, in turn, would submit it
to the General Assembly.
The delegation of Uruguay supported Ecuador’s
proposal that the IJC receive the inputs and
background material, and that this be followed by
the meeting of experts to put the text into final
form.
The Brazilian delegation proposed that this
Conference should send the documents directly to the
IJC, without first going through the General
Assembly, via the General Secretariat.
The delegation of Uruguay presented a draft
procedure which involved sending the studies
presented here, and the debates on them, to the IJC,
by way of the General Secretariat; requesting the
General Assembly to convoke a meeting of experts to
examine the IJC’s report; and sending the findings
of the work accomplished to the General Assembly.
The delegation of Ecuador pointed out that it would
be up to the meeting of experts to present the final
result of its work to the General Assembly.
The United States delegation supported Ecuador’s
proposal, as refined by the foreign minister of
Uruguay, finding that it constituted a reasonable
chain of responsibility.
In conclusion, the final version incorporates the
proposals made by the delegations in the following
operative paragraphs:
Operative paragraph 2:
The Chair of the Committee, Ambassador Castulovich,
thanked the Vice Chair, Dr. Berta Feder, Foreign
Minister Didier Opertti, and all delegations for
their contributions and constructive collaboration.
For its part, the delegation of Uruguay commended
the Chair and the other delegations for their
efforts. regular session in 2003.
