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, 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, 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, 66 Venezuela: Venezuelan Perspectives on the Hague Principles

2021 ◽  
Author(s):  
Martínez Claudia Madrid
Keyword(s):  
Latin America ◽  
International Law ◽  
Private International Law ◽  
Party Autonomy ◽  
The Hague ◽  
The Law ◽  
Proximity Principle

This chapter discusses Venezuelan perspectives on the Hague Principles. In Venezuela, the law applicable to international contracts depends on two main sources: the Inter-American Convention on Law Applicable to International Contracts, ratified in 1995 (the Mexico Convention), and the Venezuelan Act on Private International Law. Both the Mexico Convention and the Venezuelan Act adopt solutions that reflect the modern tendencies in the field of contract conflicts. Indeed, these instruments recognize the primacy of party autonomy and the subsidiary application of the proximity principle. The gaps of the Venezuelan Act could be filled, of course, with the solutions of the Mexico Convention. That would be welcome because no possible reform of the Act has been raised as yet. In fact, when scholars comment on the Venezuelan system of Private International Law, they analyse both the Mexico Convention and the Venezuelan Act, because, in short, the three rules of the Act reproduce, with some minor differences, the main rules of the Mexico Convention. Courts could even refer to the Hague Principles as persuasive authority.

Part 2 National and Regional Reports, Part 2.1 Africa: Coordinated by Jan L Neels and Eesa A Fredericks, 13 Egypt: Egyptian Perspectives on the Hague Principles

2021 ◽  
Author(s):  
Ibrahim Badr Yehya Ikram
Keyword(s):  
International Law ◽  
Civil Code ◽  
Private International Law ◽  
Conflict Of Laws ◽  
Party Autonomy ◽  
Applicable Law ◽  
Transfer Of Technology ◽  
The Hague ◽  
Egyptian Government ◽  
Made In

This chapter presents Egyptian perspectives on the Hague Principles. The Egyptian private international law rules for international commercial contracts are found mainly in the Egyptian Civil Code no 131/1948 and the Egyptian Arbitration Code no 27/1994. Egyptian private international law, in general, accepts party autonomy as a private international law rule for determining the applicable law to international contracts. However, the Egyptian legislature has decided to exclude certain contracts, such as contracts for the transfer of technology and commercial agency, from the private international law rule in respect of party autonomy. To date, the Egyptian government has not expressed any plans to revise Egyptian private international law, despite some Egyptian scholars believing that the Egyptian conflicts rules are outdated and in desperate need of being replaced with more modern rules in this regard. Nonetheless, Article 24 of the Egyptian Civil Code allows the Egyptian Courts to resort to ‘[t]he principles of private international law [which] apply in the case of conflict of laws for which no provision is made in the preceding articles’. In principle, the courts are therefore allowed to refer to the Hague Principles to supplement either Article 19 of the Egyptian Civil Code or Article 39 of the Egyptian Arbitration Code.

Part 2 National and Regional Reports, Part 2.1 Africa: Coordinated by Jan L Neels and Eesa A Fredericks, 10 Angola and Mozambique: Angolan and Mozambican Perspectives on the Hague Principles

2021 ◽  
Author(s):  
Dias Rui ◽  
Nordmeier Carl Friedrich
Keyword(s):  
International Law ◽  
Civil Procedure ◽  
Civil Code ◽  
Private International Law ◽  
Choice Of Law ◽  
Party Autonomy ◽  
Applicable Law ◽  
The Hague ◽  
The Law ◽  
Procedure Codes

This chapter explores Angolan and Mozambican perspectives on the Hague Principles. The rules of Angolan and Mozambican civil law, and with them private international law, currently in force correspond to the Portuguese rules as they stood in 1975. As to private international law, the 1966 Portuguese Civil Code (hereafter CC) contains a codification of this field of the law in Articles 15 to 65. Meanwhile, rules on international civil procedure are to be found in the Angolan and the Mozambican Civil Procedure Codes. They concern, inter alia, international jurisdiction and the enforcement of foreign judgments. Party autonomy is recognized as the principal connecting factor for contractual relationships (Art 41(1) CC). Nevertheless, the choice of law is not unlimited: it is necessary that either some of the elements of the contract having relevance in private international law are connected with the law chosen, or that the choice of the applicable law corresponds to a serious interest. It is clear from this backdrop that a set of rules, such as the Hague Principles, which present themselves as an embodiment of current best practices is well placed to help interpret, supplement, or develop the choice of law rules of the 1966 Civil Code.

Part 2 National and Regional Reports, Part 2.5 Latin America: Coordinated by Lauro Gama and José Antonio Moreno Rodríguez, 64 Peru: Peruvian Perspectives on the Hague Principles

2021 ◽  
Author(s):  
Galván Rorick Tovar ◽  
Sotelo Sara
Keyword(s):  
Latin America ◽  
Civil Code ◽  
Private International Law ◽  
Choice Of Law ◽  
Party Autonomy ◽  
National Courts ◽  
The Hague ◽  
Definition Of ◽  
The Right ◽  
Judicial Assistance

This chapter presents Peruvian perspectives on the Hague Principles. The principal provisions on Peruvian private international law are embedded in Book X of the Peruvian Civil Code. They date from 1984 and expressly grant parties the right to freely choose the law governing their contracts. These rules leave significant leeway for their interpretation to courts and omit the regulation of important issues related to the scope and limitations on the party autonomy. Still, they do offer a well-structured conflict of laws system capable of resolving in a systematic manner issues arising from international judicial assistance, competence of national courts, choice of law, and recognition and execution of decisions rendered abroad. The Peruvian conflict of law systems does not differentiate between commercial and non-commercial contracts; it does not include any definition of the concept of international contract. The Hague Principles can be used by Peruvian courts to fill lacunas in the Civil Code related to the limits and scope of choice of law agreements concluded by parties to contracts with international elements.

The Key Role of Judges in the Development of Private International Law: Lessons Learned from the Work of the Hague Conference on Private International Law

2019 ◽  
pp. 295-309
Author(s):  
Ignacio Goicoechea ◽  
Hans van Loon
Keyword(s):  
International Law ◽  
Latin American ◽  
Lessons Learned ◽  
Legal Issues ◽  
Private International Law ◽  
Child Abduction ◽  
Working Cycle ◽  
The Hague ◽  
Changing Role

The article discusses the role of judges in the development of private international law (PIL). It highlights the changing role of judges in the context of contemporary globalization, and argues that as a result of the expansion of their international duties, judges, in a way that is analogous to the working cycle of the Hague Conference on Private International Law, also have a role in identifying legal issues that must be addressed by PIL, developing tools to address those issues, ensuring the implementation and operation of these tools, and assessing their effectiveness. The article also highlights the contribution of judges to the development of Hague Conventions, and describes the very important role of Latin American judges in the development of special devices to promote the implementation, operation and assessment of the 1980 Hague Child Abduction Convention in Latin America.

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, 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.

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