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  The Basic Problem: Is Cidip necessary?

Other Language Documents  [Francais]  [Portuguese]

 

(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.

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