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(Considerations by Diego P.
Fernández Arroyo, OAS special
guest)*
1. Dispensing with any
introductory remarks, I think
that there is a fundamental
problem that requires, after
the first 25 years of
existence of CIDIP, in-depth
discussion. What is needed at
this time is to define or
redefine the role of CIDIP in
general and its viability as
the organ that codifies
private international law and
international trade law. In
that connection, a number of
specific questions should be
taken into account, such as:
- the genuine interest the OAS
has in codifying private
international law and
international trade law (OAS
agendas hardly ever include
items on private international
law; the vast majority of
topics have to do with public
international law);
- whether or not a permanent
organ is needed (or OAS staff
working exclusively on this
task);
- budgetary problems and
proposed solutions (the Free
Trade Area of the Americas–FTAA–may
have a role to play in this
regard, in view of the clear
need for a legal framework for
that free trade zone);
possibility of and limits on
private financing;
- role of the Inter-American
Juridical Committee (CJI) and
absence of experts in private
international law on the CJI;
- problems with ratification
and implementation (and
familiarity with said
implementation) in the member
states of the Organization;
- relationship between the
rules under CIDIP conventions
and those under other
conventions, in particular,
subregional integration rules;
- (more substantive) the need
for regional codification
given the present world
situation.
The only way to find a valid
answer to these and many other
related questions would be to
convene a meeting of
governmental and independent
experts within a reasonable
period of time (I think it
could be toward the end of
2003 or the start of 2004)
solely to examine the work of
CIDIP and the advisability and
necessity of proceeding (with
any relevant changes) or
not.[1]/ The conclusions of
that meeting would have to be
taken literally by the OAS
organs. In that regard, it
would be very appropriate for
CIDIP-VI (or, in its absence,
the Permanent Council) to ask
the General Assembly to
convene the Meeting of Experts
and ensure that it was well
publicized in all member
states so that each of the
topics might be well discussed
in advance of the meeting. I
deem it essential, in this
respect, for the OAS, through
the Secretariat for Legal Affairs (SLA), to encourage (and in
some cases sponsor) the
holding of subregional
seminars (which could follow
the model of the subregional
integration processes, in
other words: NAFTA, SICA,
CARICOM, CAN, and MERCOSUR,
and of national processes.
It could be especially useful
to use the personal contacts
of the Secretariat for Legal Affairs (SLA) in the various member
states to enable them to place
the question of the FUTURE OF
CIDIP as a priority item on
the agendas of regular and
special scientific meetings to
be held between CIDIP-VI and
the Meeting of Experts in
2003/2004. Many of the most
important legal achievements
in the Americas and worldwide
have to do with the attitude
and activities of specific
individuals. The Venezuelan
1998 law on private
international law is a case in
point. It would be very
important for CIDIP-VI to
adopt a resolution urging
scientific and academic
institutions to prepare the
debate for 2003/2004. Certain
countries have institutions
that are highly qualified to
do so, for example Mexico,
with its Mexican Academy of
Private and Comparative
International Law, and
Uruguay, with its Institute of
Private International Law of
the University of the
Republic. However, even in
those countries without a
similar structure, it is
important to foster contacts
and ties with those involved
in private international
law–academics, government
officials, and professionals
in general. Each of the
subregional and national
meetings should be provided
with all the documentation
produced by the Secretariat for Legal Affairs (SLA) (the
establishment of an e-mail
network is essential in this
context, in addition to being
inexpensive and easy to use).
It would also be very
important to have staff from
the Secretariat for Legal Affairs (SLA) or ad hoc experts
participate in said meetings
(they could be present
physically or through
videoconferencing and/or
through the preparation of
specific documents.)
The Meeting of Experts in
2003/2004 should serve to
establish concrete, realistic
standards for the future of
CIDIP, which would have to be
endorsed by the OAS or,
conversely, used as a basis to
declare defunct (with all due
honors) this flourishing and
rich stage in the evolution of
inter-American private
international law. Arriving at
an answer of such consequence
requires the presence of the
best proponents of private
international law of the
Americas (who could act as
representatives of the member
states or as invited
observers) and high-ranking
officials, so as to avoid a
rift between the dreams (often
legitimate) of academics and
the priority interests of
governments.
2. As I see it personally,
CIDIP would have to continue
to exist and to work but with
a significant change in its
operations and some
redefinition of its objective.
As I have said, I am aware
that there are other views, as
well founded as my own, and
this situation makes the need
for a debate, like the one I
am proposing, obvious.
However, there is no question
that the work of CIDIP should
be beneficial for all states
(the states of “the Americas
as a whole”) and that they
should therefore all play an
active role in preparing the
debate documents.
If the member states are to
feel committed to the work of
CIDIP, the Secretariat for Legal Affairs (SLA) (or the
permanent organ, if it were
established) would have to
identify one or several people
from each member state who
would be responsible for
encouraging that active
participation. Those “relevant
contact persons” (RCPs) may
vary depending on the topics
and the meetings; the same RCP
could even operate in more
than one country. What is
important is that they have,
on the one hand, easy
communication with the
Secretariat for Legal Affairs (SLA)
and, on the other, some type
of “institutional impact.”
This should not have to cause
problems with the member
states. Remember that at
present American private
international law specialists
are occupying institutional
posts (there is even a foreign
minister) or are external
consultants of governments or
of some specific ministry or
are highly distinguished
persons (there is also a judge
on the International Court of
Justice). The Secretariat for Legal Affairs (SLA) would therefore
have to be in constant contact
with the RCPs, who should be
“obliged” (at least
informally) to communicate
periodically with the
Secretariat for Legal Affairs (SLA)
on the status of the situation
in the geographic and material
sphere of action. The success
of this approach is closely
linked to the selection of the
appropriate spokesmen (RCPs).
3. Finally, the problem of the
(very limited) means that the
OAS has for private
international law is not
necessarily related to the
foregoing. A balance has to be
struck between the support
forthcoming from public and
private institutions
interested in having CIDIP[2]/
develop certain topics, and
the need to avoid
“privatizing” the process
entirely. The independence so
essential to the Conference
must be safeguarded at all
costs. Moreover, the more
convinced the authorities of
the member states are of the
importance of the issues to be
regulated, the more likely it
is that the needed budgetary
appropriations will increase
in size. In any event, the
expense need not be that
great. Apart from the
Conference itself, there would
have to be meetings of experts
(the material for which would
have to be very well prepared
in advance); then there would
be specific expenses
associated with the
participation of experts,
preparation of some reports,
collaboration with the
subregional meetings, but
little else. Any
meeting-related expenses
(whether meetings of experts
or subregional meetings) have
never been shouldered–nor will
they ever be–entirely by the
OAS; instead those costs are
shared with the member states
and with public or private
institutions (something that
could be encouraged more). The
most important expense
underwritten by the OAS, for
the sake of expertise and
qualifications, is the
participation of specialists,
both in the form of reports
and in the form of actual
presence at the meetings.
Here, the point is to know how
to “sell the CIDIP product”.
In all the member states, even
those with more academic
difficulties, events are held
every year in academics,
sports, the arts, politics,
and so on, that are infinitely
more costly than any meeting
such as the one proposed here
would be.
* These ideas have been
further developed in my
contribution to the recently
published Liber Amicorum
Jürgen Samtleben.
[1]. It was actually planned
that the topic of the future
of CIDIP would be discussed at
CIDIP-VI on the basis of the
conclusions that the CJI was
to reach during its session in
August 2001. To that end, at
its meeting in March 2001 in
Ottawa, the CJI appointed two
of its members (João Grandino
Rodas, of Brazil, Chair of the
CJI, and Carlos Manuel Vázquez
of the United States) to
present a report on the
matter. Accordingly, on May
22, 2001, the CJI, with the
help of the Secretariat for Legal Affairs (SLA), circulated a
Questionnaire on the Future of
CIDIP among a select group of
academics, jurists, and
experts in the field of law in
the Americas and other
countries, which was to be
completed by June 30. Although
I am not aware of those
conclusions, I consider that
the debate should be more
comprehensive and peaceful,
given the importance of what
is at stake. In particular, it
seems very difficult, if not
impossible, for delegates and
observers participating in
CIDIP-VI to be able, in just
five days, to devote
themselves to the three topics
selected for the meeting and
also to have time to adopt a
substantive decision on the
said future.
[2]. Thus, on the invitation
to the Third Preparatory
Meeting of Government Experts
for CIDIP-VI (Miami, November
26 to 30, 2000), organized by
the OAS and the National Law
Center for Inter-American Free
Trade (NLCIFT), the following
sponsors were thanked:
Astigarraga Davis Mullins &
Grossman, Federal Express
Corporation, Ford Motor Credit
Company, Greenberg, Traurig,
the Inter-American Development
Bank, Lucent Technologies,
MasterCard International
Incorporated, Microsoft
Corporation, NIC Conquest,
Oracle Corporation, the Summit
of the Americas Center at
Florida International
University (Miami), and 3Com
Corporation. It is hardly a
surprise that those most
interested in the approval of
certain regulations should
effectively collaborate to
that end, provided, of course,
that no commitments are being
made. It is one thing that
public interests (or the
general interest) and certain
private interests should
overlap, but it is another
thing altogether that the
private interest should impose
its will in exchange for
financing. |
