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(presented by Drs. Carlos Manuel Vázquez and João Grandino Rodas)

The responses expressed a wide range of views about the current state of the CIDIP process and the shape it should take in the future. Some respondents expressed the view that CIDIP is in a state of crisis.[i] Not all respondents shared this pessimism. Others expressed the view that CIDIP is basically on the right track, and that no major changes were necessary except an increased commitment by the OAS of the resources necessary for the effective execution of its tasks.[ii] Nevertheless, for a variety of reasons, we believe that the time is ripe for a thorough, in-depth study of the future of CIDIP and private international law codification or harmonization in this hemisphere. The Inter-American Juridical Committee has, in accordance with the General Assembly’s request, “initiated” such a study. For the reasons explained below, we propose that serious consideration should be given to the continuation and deepening of this project through the convening of a group of experts charged with conducting a wide-ranging study of The Role of CIDIP in the Twenty-First Century. We shall first enumerate the reasons why this is a propitious time to embark upon an in-depth study of the CIDIP process, and then we shall offer a few general suggestions about who should conduct the study and how. 

A. Why Now?

1. Declining Level of Ratifications  

The primary concern that has been expressed about the current state of CIDIP relates to the comparatively low level of ratifications of recent CIDIP instruments.[iii] Early CIDIP conventions received a significant number of ratifications. For example, two of the early conventions received 17 ratifications, which is impressive by any standard. By contrast, some of the recent conventions have received less than two ratifications.[iv] We recognize that the low level of ratifications of recent CIDIP instruments does not necessarily reflect a lack of influence. Some states that have failed to ratify CIDIP instruments have nevertheless used those instruments as models for domestic legislation on the pertinent subject.[v] Nevertheless, the significant drop in ratifications is one sign that the time may be right for a thorough study of the CIDIP process.   

2. CIDIP VI’s Shift to Model Laws  

The problem of decreasing ratifications may well already have been addressed through a change implemented in CIDIP VI. In contrast to previous CIDIPs, which have elaborated draft conventions on traditional subjects of private intentional law, such as jurisdiction, choice of law, and enforcement of judgments, CIDIP VI has focused on producing model laws on substantive topics of private (commercial) law. CIDIP VI will consider for adoption a model law on secured financing as well as a model law on draft bill of lading for the carriage of goods by road. Some respondents praised this recent focus on model laws, while other respondents lamented it. Most respondents, however, observed that it was too soon to tell whether this was a positive development. One of the principal challenges to CIDIP is to decide whether it should remain focused on treaties addressing conflict of laws, or whether it should deal in greater depth with particular substantive topics through the elaboration of model laws. A thorough study of CIDIP after the conclusion of CIDIP VI will permit a preliminary assessment of this question.

3. Duplication of Efforts  

Concern has also been expressed regarding the duplication of effort that currently characterizes the field of private international law.[vi] At the global level, CIDIP competes with the work of organizations such as UNCITRAL, UNIDROIT, and the Hague Conference. Some respondents lamented the fact that the nations of Latin America tend not to participate in the work of the global organizations, preferring instead to devote their efforts to the CIDIP process.[vii] Because resources are limited, many states in the region are understandably selective in their participation in harmonization efforts. One respondent expressed a preference for discontinuing the CIDIP process, thus making it more likely that Latin American states would participate in the global processes. Alternatively, respondents proposed that the CIDIP process devote its efforts to promoting the ratification by American states of the instruments adopted in the global fora, or to coordinating the American position for joint presentation at these global fora.[viii]  

4. Regionalism vs. Globalism  

Duplication of effort is of course something to be avoided.[ix] However, the preference of American states to participate in the CIDIP process may reflect their view that this process is more directly responsive to their needs than the global processes, or that they have more of a voice in the regional process.[x] Moreover, as noted by some respondents, regional attention to private international law questions that have already been addressed at the global level is not necessarily “duplication.” Because there are fewer legal systems at the regional level than at the global level, and because the legal systems within any given region are less diverse, it may be possible to tackle a problem in greater depth at the regional level than at the global level. One respondent cites as an example of this phenomenon the work on secured financing being done in the course of CIDIP VI. According to this respondent, while similar projects undertaken by UNCITRAL and UNIDROIT are “forward-looking and reflect modern trends in commercial finance, both are at the same time more narrow than the draft Inter-American model law which will be considered for . . . adoption at CIDIP-VI.”[xi]  

The possibility of achieving a more useful, more far-reaching product at the regional level has encouraged the Europeans to address regionally many of the same matters that have already been addressed globally. It has been suggested that we in the Americas should not be hesitant to do the same.[xii] We think that the appropriate relation between CIDIP and the work being done by other regional and global organizations working in the field of private international law is a subject worthy of more systematic study.

5. Increased Economic Integration in the Region  

The regional effort to harmonize private international law in Europe has no doubt been spurred by the increasing economic integration of that continent. Numerous commentators have noted that increased economic integration brings with it an increased need for harmonization of private law or other mechanisms for addressing conflicts in regulation.[xiii] If so, then CIDIP may be more important now than ever. Numerous subregional free trade areas have been established in this hemisphere, including the North America Free Trade Area (NAFTA), Mercosur, the Andean Pact, the Central American Common Market (CACM), the Caribbean Community (Caricom), and the Group of Three. More importantly, the continent has embarked in an ambitious effort to create a hemispheric free trade area, the Free Trade Area of the Americas ( FTAA), by the year 2005.

Some respondents expressed the view that the FTAA would make a continuation and even an intensification of the CIDIP process indispensable.[xiv] At the same time, however, the advent of economic integration in the hemisphere increases the need for a reexamination of the existing approach to the codification and harmonization private international law. The approach to private international law codification and/or private law harmonization that is most appropriate in the context of a hemispheric free trade area may well be very different from the approach that has prevailed until now.  

6. The Need to Formalize CIDIP’s Procedures  

A number of respondents saw a need for formalization of CIDIP’s procedures, beginning with the preparation of preliminary studies and the choice of topics and culminating in the CIDIP conferences themselves. Many respondents proposed that the Inter-American Juridical Committee should play a central role in a more formalized CIDIP process. Others suggested the establishment of a permanent CIDIP secretariat. Numerous respondents expressed the view that the CIDIP process requires a greater commitment of resources. A detailed proposal for formalizing and perhaps institutionalizing the CIDIP process should be a central part of the in-depth study of the future of CIDIP.  

For all of the foregoing reasons, we conclude that this is a propitious time for a thorough study of “The Role of CIDIP in the Twenty-First Century.” We propose that the conduct of this study be a priority item for CIDIP VII.

B. Who Should Conduct the Study and How 

The proposed study should be carried out by a small group of experts, ideally consisting of no more than three persons. The members of the working group should be selected by the Inter-American Juridical Committee, and should include jurists broadly representative of the legal traditions of the Americas. This group should perform the study in close collaboration with the Inter-American Juridical Committee. The study, when completed, should be submitted to the Inter-American Juridical Committee, which should in turn review it and transmit it, with suitable comments and recommendations, to the Permanent Council.  

The IAJC is the appropriate organ to supervise the conduct of this study because it is the organ charged by the Charter with the responsibility “to promote the progressive development and the codification of international law; and to study juridical problems relating to the integration of the developing countries of the Hemisphere and, insofar as may appear desirable, the possibility of attaining uniformity in their legislation.”[xv] A substantial majority of those who responded to the questionnaire expressed the view that the Inter-American Juridical Committee should play the central role in determining the topics to be addressed in the CIDIP process, and a large number of respondents believed that the Committee should also play a central role in directing the work on the topics once selected.[xvi] As numerous respondents noted, however, the Committee will need the assistance of outside exerts to conduct this study. The field of private international law codification and private law harmonization has become increasingly specialized in recent years, and the increasing links to economic integration have already been noted. Traditional “specialists” in private international law tend to be generalists. For this reason, it is essential to convene a group of outside experts that unites the breadth and depth of expertise necessary to perform the study. 

Designing the study will of course be the first item on the agenda of the group of experts. This is not the place to explore the details of how the project should be carried out. We do recommend, however, that serious consideration be given to the suggestion of one respondent that a series of subregional meetings (“jornadas”) be organized, dedicated to broad-based discussions of the future of CIDIP. [xvii] It is essential that the study take into account the views of a broad spectrum of interested parties. Subregional jornadas would provide an appropriate mechanism for a thorough, hemisphere-wide airing and discussion of the question of CIDIP’s future.

[xvii] Response of Arroyo, at 1.

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