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(Considerations by Diego P.
Fernández Arroyo, OAS special
guest)*
Once the “basic and
fundamental problem” is
defined and arguments have
been made for CIDIP’s
continued existence and a
general mechanism proposed for
selecting the agenda to be
discussed, there are certain
specific topics that the
inter-American community may
be interested in regulating.
As I see it, there are three
priority groups of topics:
A. “Patrimony”-related topics
5. The commercial law
“patrimony”-related topics
(generally, though not
exclusively) mirror the impact
of the new coordinates created
by the phenomena associated
with globalization and with
regional and subregional
integration. The two themes
that have received the most
attention for CIDIP VI
(secured transactions and
uniform bills of lading for
carriage of goods by roads)
and the topic that had the
greatest impact from CIDIP V
(contracts) are within this
area. In general, I believe
that with the advent of the
FTAA, this topic area will
take on much more importance,
as private law issues
associated with regional
economic integration will
necessitate a proper vehicle
to create rules. There is no
better vehicle for this job
than CIDIP (or whatever
replaces and improves upon
CIDIP).
Given the change on the
international scene and the
experience gained over this
time, there is no reason why
some of the inter-American
conventions adopted by CIDIP
shouldn’t be revised or
supplemented. The convention
on contracts adopted at CIDIP
V (known as the “Convention of
Mexico”) does not address some
very important issues. While
they are not strictly
commercial-law issues, at the
international level they are
coming up with increasing
frequency because of the
globalization of markets.
These topics include contracts
concluded by consumers,
individual labor contracts and
the like. It is obvious that
with these and other topics,
substantive rules are needed
(direct rules and not the
classic “conflict rules”) to
protect typically “weak”
parties to contracts. Think,
for example, of the labor and
social rights of cross-border
workers or of workers in the
assembly plants along Mexico’s
northern border. This same
situation occurs elsewhere in
the region as well. In that
area, CIDIP could establish a
“minimum” threshold of
protection, which the member
states or subregional
integration systems could
choose or choose not to
increase.
In addition, there are
numerous other highly
significant topics, not all
relating to commerce, on which
the establishment of rules by
CIDIP could be an important
step forward for the Americas.
To mention only one topic in
the commercial area, CIDIP
could look at the problems of
international bankruptcy or,
if you will, problems of
private international law
relating to bankruptcy.
Consideration should also be
given to developing rules to
govern other aspects of
extracontractual liability
aside from the transboundary
pollution issues addressed at
CIDIP-VI.
B. The set of topics relating
to minors and the family
6. As is well known, CIDIP has
done major work in this field.
However, as time passes, it
would seem that some of the
conventions adopted could be
updated and improved by means
of an additional protocol, a
new convention, or whatever
mechanism seems most
appropriate. For instance, the
Inter-American Convention on
the International Return of
Children of CIDIP-IV could be
completed with the adoption of
some procedural rules for
establishing the specific,
concrete procedure (along with
its deadlines, remedies, legal
consequences, etc.) for
achieving the return of
minors. But, in addition to
that, there may be areas that
need regulating and that have
not yet been addressed by
CIDIP, such as the legal
consequences of marriage,
judicial separation and
divorce, the protection of
minors in general, or common
law couples. Bear in mind that
all these topics can be
addressed from all angles of
private international law,
that is to say, not only by
taking the traditional
applicable law approach
(“conflict of laws” approach,
in the classical terminology),
but also the–in my opinion
much more important and
useful–perspective of
procedural (jurisdiction and
recognition) and cooperation
issues.
C. The set of issues relating
to international legal
cooperation
7. I refer here to cooperation
between judicial and
administrative authorities in
the widest sense, that is to
say, including recognition and
execution of decisions and
international jurisdiction in
private law matters; this is
the other set of topics which
CIDIP should address in the
future. First, there is ample
scope for drawing up rules on
jurisdiction, recognition, and
cooperation, in respect of
subjects that CIDIP has dealt
with exclusively from the
point of view of applicable
law. Second, there are areas
in which it may prove
difficult to reach agreement
on the (conflictual or
substantial) rules of
applicable law, but easier to
establish international
jurisdiction rules that
satisfy everyone (for
instance, in respect of the
“weak parties” to a contract
mentioned earlier, or certain
aspects of extracontractual
liability). Third, the
Convention on the
extraterritorial validity of
foreign judgments of CIDIP-II
has proved to very
unsatisfactory; in my view,
the time has come to outline a
system of recognition and
execution of court decisions
that is materially as wide as
it can possibly be. In
particular, it is difficult to
conceive of a free trade area
such as the FTAA without free
circulation–i.e.
straightforward recognition–of
judicial writs, or at least
those addressing property
issues.
* These ideas have been
further developed in my
contribution to the recently
published Liber Amicorum
Jürgen Samtleben. |
