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Topics for CIDIPs

SUMMARY OF URUGUAY’S POSITION REGARDING “EXTRACONTRACTUAL CIVIL LIABILITY WITH PARTICULAR REFERENCE TO TRANSBOUNDARY POLLUTION”

 October 2002

 AGENDA FOR CIDIP VII 

1. General comments  

To begin with, note that any positive outcome and impact of CIDIP on member states undoubtedly depends on whether or not its agenda reflects their interests and needs, as well as on the professionalism with which it is prepared.

The former requires a necessary and pertinent topic, with no overlapping with other international bodies drawing up private international law, such as UNCITRAL, UNIDROIT, and the Hague Conference.

The latter is achieved by assigning the subject to experts, either individually or in groups, for study and preparation of papers and preliminary draft conventions.

Furthermore, with respect to the items on the agenda:

-The process of regional codification needs to be seen as an effective contribution to solving problems in the sphere of private international law that affect individuals, families, and legal entities;

-The CIDIP agenda should not be solely devoted to the needs of economic agents; while they are indeed important, we should recognize that they are, to a large extent, being addressed in extraregional fora;

Other aspects to examine are the venue and duration, for which a joint effort by the states and the General Secretariat is of the utmost importance in order to ensure that the Conference has the impact that is needed and useful for all OAS member states.

2. The agenda 

International jurisdiction.  Inclusion of this topic strikes us as crucial for a number of reasons.

It is not currently a subject that has garnered universal consensus, a fact that suggests the pertinence of addressing it effectively in the inter-American sphere, bearing in mind, in particular, that so far the CIDIPs have adopted conventions regulating all the other procedural aspects.  Naturally, we are referring here to direct jurisdiction, that is to say, identification of the competent authority before which an international case may be brought, and not to indirect jurisdiction, that is to say one of the qualifications needed to execute a foreign judgment.

Extracontractual liability.  This is a multifaceted matter, for which regulation of applicable law is essential.  In this area, no general developments are underway in the international sphere nor is there any likelihood of uniform laws being adopted on the basis of them.  A series of factors are subject to this liability and cannot be characterized as juridical affairs; hence the importance of the proposed regulations.

Looked at from another angle, regulation in this area would match CIDIP-V’s regulation of contracts.

To facilitate this topic’s inclusion on the agenda, the emphasis on cross-border pollution could be discarded in favor of a more general approach.  At the same time, cross-border pollution as a responsibility of states is being addressed in the CDI and was the subject of a major report by Professor Rao (India).

International Consumer Contracts – Applicable Law.   This subject is of current interest at a time when importance is attached to consumer protection, in a world that has internationalized distance transactions in which consumers may sometimes be deprived of the guarantees that direct contracts afford.

These comments do not preclude further remarks that may be prompted by exchanges of views among the delegations.

CP13714E04