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  Procedure for selecting the Agenda

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(Considerations by Diego P. Fernández Arroyo, OAS special guest)*

4. In an ideal world, the topics that each CIDIP would address would be determined by a permanent body within the General Secretariat, either within or outside the Secretariat for Legal Affairs (SLA). It could consist of permanent staff and advisors. A less ambitious idea would be t o detail a number of staff from the Secretariat for Legal Affairs (SLA), who would work fulltime on this matter. There need not be many: two or three people, with sufficient expertise, and working exclusively on the business of CIDIP, would suffice. Logically, the permanent body would take suggestions from the member States and from the organs or the OAS, narrow down the agenda with the help of outside specialists and then present it to the Permanent Council for approval. One might think that this is how things are presently being handled, but that is not the case: the permanent body would have some authority to take initiative and would be executive in nature (as understood within the framework of the Organization).

But with things as they now are (in other words, so long as there is no permanent body and the work is not centralized in the hands of specialized OAS staff members, functioning with some degree of autonomy), I believe that the least that can be done is to create an ad hoc group. Composed of specialists, such an ad hoc group would advise the Secretariat for Legal Affairs (SLA), rapidly focusing the agendas that are proposed at each CIDIP for the next Conference. The guidelines for determining the agendas would be the following, as a minimum:

- The topics for each conference should be few in number, no more than 2 or 3 at a time. Of course, studies on other topics of interest could still be prepared. But if the meeting lasts only a week, it seems that two should be the maximum number of topics;

- Once the ad hoc group has made its decision, a circular should be sent to the member states requesting that they explain their interest in each topic as promptly as possible, within 90 days at the latest. Anyone interested in participating will meet that deadline. We cannot, however, continue to relive the frustrating experience of the questionnaires that the Secretariat for Legal Affairs (SLA) sends to the member states, waiting months only to receive replies from a handful of them. Academic or scientific institutions could also be asked for their opinions.

- The practice of consulting with the Inter-American Juridical Committee (CJI) should continue. However–and not to diminish the very considerable contributions that the CJI has made in the area of private international law–it bears repeating that most of the members of the CJI are experts in public international law.

- Ideally at least, the need for an interest in regulation of a subject matter ought to be matched by a commitment to collaborate in drafting the pertinent instrument and then to accept it.

- Although ‘non-duplication of effort’ in international codification is a factor to consider, it does not weigh equally for all topics nor is it an absolute;

The main guideline, difficult in general but feasible to examine in connection with each specific topic, is the following: the importance of a topic and the need to prepare a text to regulate it, is inversely proportional to the problems caused by the existence of differing domestic or usage-based rules of private international law and/or by the inadequacy of those rules to the sector’s situation. In other words, it has to be determined whether the best solution to the problems that occur with a given subject is to standardize the rules of private international law among the member states, or to help harmonize them by means of a model law. One way or another, the system would have to be as flexible as possible, without ignoring the limits that the bureaucracy of any international organization imposes.


* These ideas have been further developed in my contribution to the recently published Liber Amicorum Jürgen Samtleben.

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