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(Considerations by Diego P. Fernández Arroyo, OAS special
guest)*
The work method adopted in CIDP-VI with regard to secured
transactions might be said to be satisfactory, despite the
last-minute presentation of documents. Basically, it seems
to me important to form a working group (or group of
“experts”) whose members are in constant contact with one
another over the Internet and who meet at least three times
before the Conference is convened. Obviously, if the
permanent organ is established, it would be responsible for
coordinating all these endeavors. In my opinion, the
Inter-American Juridical Committee should, naturally, be
involved, but red tape, such as that usually associated with
going through the Permanent Council, should be eliminated
wherever possible. The higher the degree of specialization
in the work done by CIDIP, the better. The OAS could even
hire specialists for each topic or request them, as it has
done on some occasions, to provide reports on the status of
those topics and on what needs to be done.
9. The “model law” approach may be a useful step and, in
that sense, the Mexican delegation is to be congratulated
for making such a practical and realistic proposal in
respect of the secured transactions topic. However, two
things have to be borne in mind:
A) The choice of a particular methodology must depend on the
subject to be regulated and on current circumstances. In
certain cases, a model law might be the best option, while
in others the more binding international convention method
may prove useful. Now, the idea of combining methodologies
should be taken in a very broad sense, not limited to the
choice between model laws and conventions; rather, whatever
method of regulation is chosen, consideration should be
given, in each topic, to the appropriateness of including
rules on jurisdiction, applicable law, recognition, and
cooperation. Moreover, within applicable law rules it may,
for some topics, be useful to mix indirect (“conflict”)
rules with direct material rules.
B) Without disparaging the use of this new methodology by
CIDIP, I believe it is important to point out that, in fact,
the inter-American private international law conventions
have functioned to a large extent as model laws, even though
that may not have been their purpose. By that I mean that
criticism of the lack of application of some conventions and
the lack of ratification of others usually neglects to take
one basic fact into account: CIDIP has been bringing about
an extraordinary transformation in the private international
law systems of Latin American states and has exercised
considerable influence in the MERCOSUR subregion. The number
of countries ratifying CIDIP conventions and implementing
their provisions may vary considerably, but what is
undeniable is that many of their rules have found their way
into national legal systems. Although indeed it must be
admitted that jurisprudence on implementation of the
inter-American conventions is scant and hard to come by, it
is much more to the point that CIDIP has become the key
point of reference for national lawmakers, or at least those
of Latin American countries. In practically all the reforms
of civil and procedural codes that affected private
international law rules to a greater or lesser extent, it is
possible to trace the influence of the criteria developed by
the inter-American body to regulate external private
commercial relations, which in some way points to a
modernizing influence exerted by those ideas. Likewise, the
impact of CIDIP solutions can be detected in several special
laws or provisions enacted by member states of the OAS, such
as Uruguay’s Corporation Law of 1989, various countries’
arbitration rules, and the standards with respect to
adoption, which incorporate the notion of full adoption,
that can be found in the legislation of some Mexican
states.[3]/
*
These ideas have been further developed in my contribution
to the recently published Liber Amicorum Jürgen Samtleben.
[3]. Everything said so far about the aforementioned state
reforms is, generally speaking, applicable to the most
important reform of all, the Venezuelan Law on Private
International Law (1998). However, the special features of
this law make it worth commenting on separately. The Law
clearly reveals close ties to CIDIP, but in a two-way
relation, not just a passive incorporation of CIDIP
solutions into the Venezuelan law. The mere fact that the
new law derives from a bill drafted in 1963 explains why
that is so. One of the bill’s authors, G. Parra-Aranguren,
explains that some solutions coined by CIDIP in fact come
from that bill. However, seeing that the bill was enriched
and updated in an effort to adapt solutions devised in
another historical context to the “human, economic, and
social realities of Venezuela,” the law that was enacted was
significantly influenced by the work of CIDIP. This can be
seen, in a general way, in the adoption in Article 1 of the
“internationalization” note, referred to earlier, regarding
the determination of the law applicable to international
private situations. With respect to specific issues, that
influence can be seen in several areas, whereby, because of
its novelty, the adoption of essential rules in the
Inter-American Convention on the Law Applicable to
International Contracts (Articles 29-31) is especially
striking. Another feature that justifies commenting
separately on this regulation is the historically highly
significant change in the law applicable to personal status.
Indeed, as the 1963 bill postulated, the Law abandons
nationality, the traditional connection factor in the
Venezuelan system of private international law, and replaces
it with domicile. The aforementioned historic importance of
this must not be measured only in terms of the particular
country but against the backdrop of the whole nationality
versus domicile debate in international private law in the
Americas. |
