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April 2021

Inter-American Juridical Committee completes Sessions approving Principles on Privacy and Protection of Personal Data and Supporting the Hague Principles on the Choice of Law applicable to International Commercial Contracts

Inter-American Juridical Committee completes Sessions approving Principles on Privacy and Protection of Personal Data and Supporting the Hague Principles on the Choice of Law applicable to International Commercial Contracts

The Inter-American Juridical Committee (CJI), a consultative body of the Organization of American States (OAS) on legal matters, ended its 98th regular session after a week of virtual sessions.

On this occasion, the CJI approved the “Updated Principles on Privacy and Protection of Personal Data” with annotations. These Principles will be transmitted to the General Assembly of the OAS for its due appreciation, together with the recommendation that they be approved and endorsed.

In 2018, the OAS General Assembly had requested the CJI to begin updating the Principles on the Protection of Personal Data adopted by the Committee in 2015, taking into account they had evolved. Between August of 2020 and February of 2021, the CJI carried out an intense process of consultations for the purpose of including contributions from member states and international entities into its work, so as to produce a document that reflects the different approaches on the subject that coexist in the region. In the last few years, the States of the region have made numerous efforts to strengthen the protection of privacy and personal data, at the same time promoting the cross-border flow of information. With the adoption of the Principles, the CJI recognizes the importance of encouraging development and legal harmonization on this issue across the continent, besides transparency in the processing of these data by digital applications and web pages, accountability on the part of the controllers and those in charge of the data, making sensitive data secure and streamlining a national and international electronic commerce that respects privacy and the empowerment of citizens with regard to how their personal data is processed. The CJI also requested its Technical Secretariat, the Department of International Law (DIL), to give these Principles the widest possible dissemination among the various stakeholders.

On the other hand, the CJI approved a resolution extending its support to the Hague Principles on the Choice of Law Applicable to International Commercial Contracts, which establish general principles on the choice of applicable law and affirm the principle of autonomy of the parties, with limited exceptions. The Hague Principles, adopted in 2015 by the Hague Conference on Private International Law, were widely consulted by the CJI in drawing up the Contract Guide on the Law Applicable to International Commercial Contracts in the Americas approved in March 2019 and frequently cited throughout its text. All of the above reveals the commonality of objectives between both instruments in their zeal to promote clear adherence to the principle of autonomy of the parties (Recommendation 7 of the CJI Guide) and the recognition and clarification of the choice of non-state law (Recommendation 6 of the CJI Guide), thereby strengthening the international standards recognized in the Inter-American Convention on Law Applicable to International Contracts adopted in 1994 and in other international instruments.

International trade has been unfavorably affected by the uncertainty produced by the unfair treatment of the agreement of the choice of law applicable to international contracts in different jurisdictions. In this sense, both safety and foreseeability in legal terms in the area of international commercial transactions may gain strength with the assurance that the law chosen by the parties in their contracts enjoys the widest ambit of application, but subject to clearly defined limits. In fact, the promotion of a coherent approach in the choice of the law applicable in international contracts is instrumental in the modernization and harmonization of international commercial law, and this in turn leads to a favorable climate in business and trade.

By approving this resolution, the CJI recommends to the competent authorities the use of The Hague Principles together with the CJI Contracts Guide, when corresponding, as models for the adoption of domestic, regional, and international instruments and to interpret, complement and draft international private law provisions. The CJI will forward this resolution to the OAS Permanent Council for due knowledge and consideration, as well as to The Hague Conference on International Private Law.

During its 98th Regular Session, six new topics were introduced in the current working agenda of the CJI, referring to the legal framework for the creation, functioning, financing, and dissolution of non-profit civil entities; the participation of victims in criminal proceedings against corruption activities; the neuro-rights, the right to education; the contracts between merchants having a contractually weak party; and the new technologies and their relevance for international legal cooperation, the latter in accordance with a recent mandate of the General Assembly. In addition, and in compliance with another mandate of the General Assembly, the Committee will examine the inter-American juridical framework applicable for strengthening the social and economic resilience of the countries of the region, within the framework of the Covid-19 pandemic and its subsequent effects. Other topics on the working agenda studied by the CJI during this regular session were: international customary law, especially in the context of the American Continent, and the drafting of a model law about the use of fireworks, either for personal use or in massive pyrotechnic shows.

The 99th Regular Session of the IAJC will take place from 2 to 11 August 2021, during which the Joint Meeting between the IAJC and the Legal Counsellors of the Ministries of Foreign Affairs of OAS Member States will take place.

As of next week, the documents mentioned in this Newsletter can be found in the IAJC´s webpage.

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