Part 2 National and Regional Reports, Part 2.5 Latin America: Coordinated by Lauro Gama and José Antonio Moreno Rodríguez, 62 Panama: Panamanian Perspectives on the Hague Principles

2021 ◽  
Author(s):  
Montenegro Carlos Alberto Arrue
Keyword(s):  
Latin America ◽  
International Law ◽  
Civil Code ◽  
Legal Rule ◽  
Legal Authority ◽  
Private International Law ◽  
Binding Effect ◽  
Judicial Decisions ◽  
The Hague ◽  
Correct Application

This chapter studies Panamanian perspectives on the Hague Principles. In relation to obligations and contracts, the Panamanian Civil Code reproduces Book IV, ‘Of Obligations and Contracts’, of the Spanish Civil Code of 1889, but contains a number of important differences in other sections. In terms of sources of law, statutes occupy the most prominent position among sources of law. Consequently, neither interpretations given by Panamanian courts, nor decisions on previous cases, are binding for courts that must then decide on similar cases, even when the same provisions apply. Nevertheless, judicial decisions may, and in fact usually do, serve as an illustration on the correct application or interpretation of a legal rule. It is in this limited context that the Panamanian courts may refer to the Hague Principles and other principles of private international law and/or international contracts. The latter will not have an automatic or binding effect, but they may provide legal authority upon which the court may depend to properly interpret similar provisions of Panamanian private international law, or otherwise develop and complete legal gaps in Panamanian private international 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.

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 2.2 Asia: Coordinated by Yuko Nishitani and Béligh Elbalti, 39 United Arab Emirates: Emirati Perspectives on the Hague Principles

2021 ◽  
Author(s):  
Bälz Kilian
Keyword(s):  
International Law ◽  
United Arab Emirates ◽  
Civil Code ◽  
International Standards ◽  
Federal State ◽  
Private International Law ◽  
International Treaties ◽  
Federal Law ◽  
The Hague ◽  
The Law

This chapter presents Emirati perspectives on the Hague Principles. The United Arab Emirates (UAE) are a federal State that was established in 1971. Private international law, civil procedure, and arbitration all are federal matters that are covered by federal laws. Private international law is codified in a section of the UAE Civil Code (Federal Law No 5 of 1985) that deals in Articles 10 to 28 with ‘The application of the law regarding the place’. The section also contains the conflict of law rules applicable to international commercial contracts. The statutory provisions of the Civil Code are, in practical terms, the most important source of law when determining the law applicable to an international contract in the UAE. According to Article 22 of the Civil Code, international treaties, to the extent they apply, override the provisions of municipal law. Moreover, Article 23 of the Civil Code provides that in the absence of any statutory provision, ‘the [general] principles of private international law’ shall apply. This provides the UAE courts with the option to make reference to international standards such as the Hague Principles.

Part 2 National and Regional Reports, Part 2.2 Asia: Coordinated by Yuko Nishitani and Béligh Elbalti, 34 Qatar: Qatari Perspectives on the Hague Principles

2021 ◽  
Author(s):  
Elrifai Silke Noa
Keyword(s):  
International Law ◽  
Civil Code ◽  
Private International Law ◽  
Federal Law ◽  
Conflict Of Laws ◽  
Law System ◽  
Financial Centre ◽  
The Hague ◽  
Legal Frameworks

This chapter addresses Qatari perspectives on the Hague Principles. The State of Qatar has two legal frameworks: the onshore civil law system and the offshore common law-based the Qatar Financial Centre, established in 2005 and not covered in this chapter. In onshore Qatar, private international law is codified in Articles 10–38 of Subchapter 3 (conflict of laws in space) of Chapter 1 of the Qatar Civil Code (Federal Law No 22 of 2004). In comparison to its European counterparts, the Qatari private international law codification contains significant gaps. Though only promulgated in 2004, Articles 10–38 are near copies of the conflict of law rules contained in the Egyptian Civil Code of 1949, with a few differences. In accordance with Article 34 Civil Code, ‘the [general] principles of private international law’ shall apply in the case of a conflict of laws absent any statutory provision. The provision opens the doors for Qatari courts to refer to the Hague Principles.

Part 2 National and Regional Reports, Part 2.2 Asia: Coordinated by Yuko Nishitani and Béligh Elbalti, 36 South Caucasus: South Caucasian Perspectives on the Hague Principles

2021 ◽  
Author(s):  
Kupelyants Hayk
Keyword(s):  
International Law ◽  
Civil Code ◽  
Soft Law ◽  
Private International Law ◽  
Legal Systems ◽  
The South ◽  
South Caucasus ◽  
Customary International Law ◽  
The Hague

This chapter explores South Caucasian perspectives on the Hague Principles. The rules of private international law in all three South Caucasian countries—Armenia, Georgia, and Azerbaijan—are primarily contained in statutes: the Chapter of Private International Law in Armenia (1998) and separate statutes on Private International Law in Azerbaijan (2000) and Georgia (1998). Article 1253(1) of the Armenian Civil Code and Article 1(2) of the Azerbaijani Act provides that the courts may apply international customs in the area of private international law. In so far as the Hague Principles amount to or eventually crystallize into customary international law, the courts may give effect to the Hague Principles in that manner. Before that happens, there is nothing in the legal systems of either of the three jurisdictions preventing the courts from citing for explanatory and persuasive reasons soft law instruments, such as the Hague Principles. That said, stylistically the judgments of the South Caucasian jurisdictions are often drafted in a very concise and skeletal manner. Soft law instruments and commentary might influence the reasoning of the judges, but they would rarely refer to them in the text of the judgment.

Part 2 National and Regional Reports, Part 2.1 Africa: Coordinated by Jan L Neels and Eesa A Fredericks, 15 Mauritius: Mauritian Perspectives on the Hague Principles

2021 ◽  
Author(s):  
Cupido Robin
Keyword(s):  
International Law ◽  
Future Development ◽  
Civil Code ◽  
Law Reform ◽  
Private International Law ◽  
Commercial Law ◽  
Conflict Of Laws ◽  
The Past ◽  
The Status ◽  
The Hague

This chapter discusses Mauritian perspectives on the Hague Principles. The Code Civile Mauricien (Mauritian Civil Code) governs most private and commercial law matters and is thus one of the main sources of Mauritian law. Another main source is the Constitution of Mauritius 1968. It is important to note that there is no constitutional imperative for courts to consider international law when interpreting legislation, which could be a contributing factor to the lack of development of a cohesive private international law regime in Mauritius. The Law Reform Commission of Mauritius has thus been reviewing the status of private international law in Mauritius over the past five years and has issued several reports and studies on the matter. The chapter then investigates the extent to which Mauritian private international law already reflects the content of the Hague Principles and how this set of principles could influence the future development of the conflict of laws in Mauritius.

Part 2 National and Regional Reports, Part 2.1 Africa: Coordinated by Jan L Neels and Eesa A Fredericks, 11 Common Law Africa: Common Law African Perspectives on the Hague Principles

2021 ◽  
Author(s):  
Oppong Richard Frimpong
Keyword(s):  
International Law ◽  
Common Law ◽  
Case Law ◽  
Private International Law ◽  
International Treaties ◽  
African Countries ◽  
International Convention ◽  
Judicial Decisions ◽  
The Common ◽  
The Hague

This chapter studies the common law African countries Gambia, Ghana, Kenya, Malawi, Nigeria, Sierra Leone, Tanzania, Uganda, and Zambia. Their main source of private international law rules is judicial decisions or case law. Because of the relatively underdeveloped nature of their private international law regimes, foreign case law often serves as an important source of persuasive authority. In this regard, the jurisprudence of the English courts is particularly persuasive and is often referred to by the courts. In general, an international convention or treaty does not have the force of law in the legal systems of the countries under study, unless it is expressly incorporated into national law. In essence, they are dualist countries. However, courts in some of the countries under study have demonstrated a willingness to seek guidance from international treaties that are not yet domestically in force, if the circumstances are appropriate. Thus, it is possible, that courts in the countries under study may be receptive to the Hague Principles, especially if argued by counsel.

Part 2 National and Regional Reports, Part 2.2 Asia: Coordinated by Yuko Nishitani and Béligh Elbalti, 27 Israel: Israeli Perspectives on the Hague Principles

2021 ◽  
Author(s):  
Einhorn Talia
Keyword(s):  
International Law ◽  
Civil Code ◽  
Private International Law ◽  
International Obligations ◽  
The Hague ◽  
International Sale Of Goods

This chapter reflects on Israeli perspectives on the Hague Principles. Israeli private international law (PIL) has not been codified. The only statute having a rather comprehensive set of PIL rules is the Succession Law, 5765-1966. The PIL rules contained in the separate statutes were included in the Draft Civil Code, but apart from the Draft CC chapter on succession, which contains a comprehensive set of PIL rules, their fragmentary contents have been retained in the various chapters. With one exception, namely, contracts for the international sale of goods, no conflict rules governing international commercial contracts have been adopted by the Knesset. Regarding Israel’s international obligations, Israel is a member of the Hague Conference on Private International Law and has ratified a number of the Hague Conventions. However, at this point in time, especially in view of the paucity of conflict rules adopted by the Knesset, it is difficult to predict whether the Knesset would adopt the Hague Principles in an Israeli statute.

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