Part 2 National and Regional Reports, Part 2.5 Latin America: Coordinated by Lauro Gama and José Antonio Moreno Rodríguez, 58 Colombia: Colombian Perspectives on the Hague Principles

2021 ◽  
Author(s):  
Salame Antonio Aljure
Keyword(s):  
Latin America ◽  
Civil Law ◽  
Case Law ◽  
Private International Law ◽  
Gap Filling ◽  
Commercial Law ◽  
Legal Relationship ◽  
Commercial Code ◽  
The Hague ◽  
International Instruments

This chapter looks at Colombian perspectives on the Hague Principles. In Colombia, civil and commercial regulations are contained in two separate codes: the Colombian Civil Code and the Commercial Code. Despite their separation, commercial law draws from civil law and regulates several areas not covered by the latter. As a result, civil and commercial law in Colombia should be understood as complementary in that they both regulate international contracts and share similar foundations and principles. There is currently no modern law that comprehensively deals with private international law in Colombia. However, the Bogotá Chamber of Commerce is in the process of drafting legislation with the objective of clarifying the interpretive approach to norms underlying international contracts. Although there is no express reference to the Hague Principles as a guiding or interpretative source of law for judges, it has been recognized in case law that international instruments such as the UNIDROIT Principles of International Commercial Contracts (UPICC) may govern a legal relationship if they do not contravene an express rule. This gap-filling role facilitates the transition of law to modernity by virtue of the requirements of relevance, coherence, and justice.

Part 2 National and Regional Reports, Part 2.5 Latin America: Coordinated by Lauro Gama and José Antonio Moreno Rodríguez, 54 Argentina: Argentine Perspectives on the Hague Principles

2021 ◽  
Author(s):  
All Paula María
Keyword(s):  
Latin America ◽  
International Law ◽  
Civil Law ◽  
Private International Law ◽  
Commercial Code ◽  
The Future ◽  
The Hague ◽  
The Law

This chapter discusses Argentine perspectives on the Hague Principles. As regards conventional private international Law, Argentina has ratified the Montevideo Treaties on International Civil Law of 1889 and 1940, which regulate the law applicable to international contracts in Articles 32–39 and 36–42, respectively. Concerning domestic private international Law, its provisions are envisaged in the Argentine Civil and Commercial Code and special statutes. On 7 October 2014, Argentina enacted a new Civil and Commercial Code (CCyCN, for its Spanish acronym), which came into force on 1 August 2015. The regulatory sources consulted for the drafting of the New Code did not include the Hague Principles. Nevertheless, were the CCyCN to be amended in the future, nothing would prevent the Hague Principles from being considered at the time of modifying rules on the law applicable to international contracts. Within the judicial framework, Argentine courts may use the Hague Principles in order to interpret or supplement rules of law on the law applicable to international contracts.

Part 2 National and Regional Reports, Part 2.5 Latin America: Coordinated by Lauro Gama and José Antonio Moreno Rodríguez, 63 Paraguay: Paraguayan Perspectives on the Hague Principles

2021 ◽  
Author(s):  
Rodríguez José Antonio Moreno
Keyword(s):  
Latin America ◽  
Member State ◽  
International Law ◽  
International Institute ◽  
Private International Law ◽  
State Law ◽  
Conflict Of Laws ◽  
Commercial Code ◽  
The World ◽  
The Hague

This chapter highlights Paraguayan perspectives on the Hague Principles. Paraguay does not have a law dealing comprehensively and organically with Private International Law. The Civil and Commercial Code of 1987 contains the basic regulation on conflict of laws, and other provisions on the field can be found scattered in several special laws dealing with specific matters. Paraguay adhered, as a Member State, to the Hague Conference on Private International Law via Law 2555 of 2005. It is the first country in the world to legislate on international contracts heavily influenced by the Hague Principles. The Paraguayan law on international contracts drawn upon the Hague Principles openly allows the application of non-State law, and the International Institute for the Unification of Private Law (UNIDROIT) Principles clearly qualify as such.

Part 2 National and Regional Reports, Part 2.1 Africa: Coordinated by Jan L Neels and Eesa A Fredericks, 18 Tunisia: Tunisian Perspectives on the Hague Principles

2021 ◽  
Author(s):  
Elbalti Béligh
Keyword(s):  
International Law ◽  
Case Law ◽  
Private International Law ◽  
Choice Of Law ◽  
Party Autonomy ◽  
Legal Literature ◽  
The Hague ◽  
International Instruments ◽  
International Conventions ◽  
Clear Solution

This chapter focuses on Tunisian perspectives on the Hague Principles. The main source of private international law in Tunisia is the 1998 Code of private international law (CPIL). Tunisia has not signed any convention on choice of law in international contractual matters. However, it is worth mentioning that, in the field of international arbitration, some conventions to which Tunisia is party include an express reference to party autonomy. As a matter of principle, Tunisian courts are bound only by Tunisian law and other international instruments duly ratified by Tunisia. Nevertheless, it is not uncommon that Tunisian courts refer to foreign laws, international conventions not ratified by Tunisia, model laws, foreign case law, or even foreign legal literature when such reference is deemed persuasive. Therefore, it can be safely said that nothing prevents Tunisian courts from referring to the persuasive authority of the Hague Principles. This would be the case if the parties invoked the Principles in support of their arguments in the case where a clear solution is lacking under Tunisian law.

Part 2 National and Regional Reports, Part 2.5 Latin America: Coordinated by Lauro Gama and José Antonio Moreno Rodríguez, 65 Uruguay: Uruguayan Perspectives on the Hague Principles

2021 ◽  
Author(s):  
de Aguirre Cecilia Fresnedo
Keyword(s):  
Latin America ◽  
International Law ◽  
Buenos Aires ◽  
Civil Law ◽  
Civil Code ◽  
Private International Law ◽  
Party Autonomy ◽  
Additional Protocol ◽  
The Hague

This chapter reflects on Uruguayan perspectives on the Hague Principles. In Uruguay, international commercial contracts are regulated by the following conventions: the Montevideo Treaty on International Civil Law of 1889; the Montevideo Treaty on International Civil Law of 1940; the Additional Protocol to the Montevideo Treaty on International Civil Law of 1940; and the Buenos Aires Protocol on International Jurisdiction in Contractual Matters. They are also regulated under the domestic private international law rules contained within the Appendix of the Civil Code of Uruguay. The Appendix of the Civil Code, including rules regulating contract, is under revision; a Draft General Act on Private International Law is in Parliament under consideration. It seems unlikely that the Hague Principles will play any role regarding this Draft Act at present; however, the draft has yet to be approved mainly due to disagreement on the role of party autonomy. If the Draft Act is approved and entered into force, the Hague Principles may become useful in Uruguayan law.

Local trusts and forced heirship (Commentary to the “CRO” case)  C. R. O. c/C. O. N. y otros s/nulidad de acto jurídico (22 October 2019) Court: Civil and Commercial Law, Chamber of Appeals of Necochea (Buenos Aires Province—Argentina)

2020 ◽  
Author(s):  
Nicolas Malumian
Keyword(s):  
Latin America ◽  
South America ◽  
Buenos Aires ◽  
Civil Law ◽  
Case Law ◽  
Recent Case ◽  
Buenos Aires Province ◽  
Commercial Law ◽  
Sharia Law ◽  
First Time

Abstract This recent case is a leading case relating to local trusts and forced heirship. Forced heirship is a restriction to the liberty to write a will and determine the destiny of his/her future estate by the testator. It can be found in all South America (not in Latin America from Panama to México) and in most Civil Law countries in Europe, besides similar restrictions under sharia law. The way to avoid these restrictions has been the creation of a foreign trust over foreign assets. Although authors have long analyzed whether a local trust allows the avoidance of local forced heirship rules over local assets, there has been no case law in this respect (at least since the inclusion of the trust in Argentine law in 1995). In short, this is the first time a local trust over local assets has been under the scrutiny of the courts to determine if there is a violation of forced heirship.

Part 2 National and Regional Reports, Part 2.2 Asia: Coordinated by Yuko Nishitani and Béligh Elbalti, 28 Japan: Japanese Perspectives on the Hague Principles

2021 ◽  
Author(s):  
Nishitani Yuko
Keyword(s):  
Common Law ◽  
Civil Law ◽  
Private International Law ◽  
Law System ◽  
Legal Relationship ◽  
Foreign Law ◽  
General Rules ◽  
The Hague ◽  
Civil Law System ◽  
Domestic Law

This chapter discusses Japanese perspectives on the Hague Principles. Japan belongs to the civil law system, although some legal institutions grounded in common law also exist. At the end of the nineteenth century, Japan transplanted Western legal systems. Along with the codification of the Civil Code and other statutes, the Private International Law Act, Hôrei, was adopted in 1898, which was modernized and substituted by the Japanese Act on General Rules for Application of Laws (AGRAL) in 2006. The AGRAL designates, out of several conflicting laws, the law which has the closest connection with the legal relationship concerned. This value-neutral, multilateral method consists in localizing the legal relationship in a certain jurisdiction, grounded on the equality and interchangeability of domestic law and foreign law. While the judge does not have the authority to directly apply the Hague Principles instead of the AGRAL in litigation, the judge can certainly refer to the Hague Principles in seeking guidance for interpretation or filling gaps of the AGRAL, same as for other international, regional, or domestic conflicts rules, including the relevant Hague Conventions.

Part 2 National and Regional Reports, Part 2.3 Australasia: Coordinated by Brooke Marshall, 42 New Zealand: New Zealand Perspectives on the Hague Principles

2021 ◽  
Author(s):  
Hook Maria
Keyword(s):  
New Zealand ◽  
International Law ◽  
General Position ◽  
Common Law ◽  
Case Law ◽  
Private International Law ◽  
Choice Of Law ◽  
Legislative Reform ◽  
The Hague ◽  
The Law

This chapter examines the choice of law rules that determine the law applicable to international contracts in New Zealand, comparing them to the Hague Principles. Private international law in New Zealand is still largely a common law subject, and the choice of law rules on international commercial contracts are no exception. The general position, which has been inherited from English common law, is that parties may choose the law applicable to their contract, and that the law with the closest and most real connection applies in the absence of choice. There are currently no plans in New Zealand for legislative reform, so the task of interpreting and developing the choice of law rules continues to fall to the courts. When performing this task, New Zealand courts have traditionally turned to English case law for assistance. But they may be willing, in future, to widen their scope of inquiry, given that the English rules have long since been Europeanized. It is conceivable, in this context, that the Hague Principles may be treated as a source of persuasive authority, provided they are consistent with the general principles or policies underlying the New Zealand rules.

Part 2 National and Regional Reports, Part 2.4 Europe: Coordinated by Thomas Kadner Graziano, 45 Liechtenstein: Liechtenstein Perspectives on the Hague Principles

2021 ◽  
Author(s):  
Heiss Helmut
Keyword(s):  
International Law ◽  
Case Law ◽  
Contract Law ◽  
Constitutional Court ◽  
Private International Law ◽  
International Treaties ◽  
Choice Of Law ◽  
International Convention ◽  
Legal Literature ◽  
The Hague

This chapter looks at Liechtenstein perspectives on the Hague Principles. Rules on choice of law, including international commercial contract law, have been codified by virtue of the Act on Private International Law 1996 (Liechtenstein PILA). The Liechtenstein PILA does not expressly state that conventions will take precedence over national laws. However, it has been held by the Liechtenstein Constitutional Court that international treaties are of at least equal status to regular national laws and that national law must be interpreted in line with public international law. Moreover, an international convention will often be considered to be a lex specialis and be given precedence over national rules on that ground. Liechtenstein courts will refer first of all to (old) Austrian case law and legal literature when dealing with matters pertaining to the parties’ choice of law. Whenever these sources leave ambiguity to a specific question, Liechtenstein courts may and most likely will consider other persuasive authorities. The Hague Principles may constitute such persuasive authority.

Part 2 National and Regional Reports, Part 2.1 Africa: Coordinated by Jan L Neels and Eesa A Fredericks, 14 Ethiopia: Ethiopian Perspectives on the Hague Principles

2021 ◽  
Author(s):  
Gebremeskel Fekadu Petros
Keyword(s):  
International Law ◽  
Case Law ◽  
Private International Law ◽  
Choice Of Law ◽  
Party Autonomy ◽  
Applicable Law ◽  
The Subject ◽  
The Hague ◽  
Federal Supreme

This chapter reflects on Ethiopian perspectives on the Hague Principles. Ethiopia does not have a codified law regulating matters of private international law, nor is there detailed case law from which one could derive key principles of the subject. While the shortage of private international law in Ethiopia is evident, the problem is most severe in the area of applicable law. In relation to party autonomy in choice of law, the Federal Supreme Court’s Cassation Division has handed down some interesting decisions, and these indeed have the force of law in Ethiopia. Nevertheless, the approach of the Ethiopian courts in respect of party autonomy is not very developed and clear, including in the field of international commercial contracts. While it would be prudent for Ethiopian courts to refer to the Hague Principles as persuasive authority, this requires awareness of the existence of the Hague Principles. In the long term, the Hague Principles will surely find their way into Ethiopian law.

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