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 2.4 Europe: Coordinated by Thomas Kadner Graziano, 46 Norway: Norwegian Perspectives on the Hague Principles

2021 ◽  
Author(s):  
Cordero-Moss Giuditta
Keyword(s):  
International Law ◽  
Public Consultation ◽  
Soft Law ◽  
Private International Law ◽  
Party Autonomy ◽  
The Hague ◽  
The Law ◽  
Rome I ◽  
The Eu

This chapter assesses Norwegian perspectives on the Hague Principles. To understand the significance in Norway of the Hague Principles, it is necessary to explain the Norwegian system of private international law and its sources. Historically, conflict rules in Norway were not codified. Nowadays, private international law, at least as far as civil obligations are concerned, is undergoing a process of codification. A proposal for a statute on the law applicable to obligations has been released for public consultation, which has been concluded, and the Ministry is expected to draft a Proposition on that basis. The proposal is largely based on the EU regulations Rome I and Rome II. The Norwegian system of private international law may therefore be said to have turned into a system that is de facto parallel to EU Private International Law. Should the proposed statute be enacted, the system will also formally, albeit unilaterally, be parallel to Rome I and Rome II. Generally, therefore, it can be assumed that conflict rules will coincide with the rules contained in Rome I. In such a picture, the role that the Hague Principles may play for the Norwegian regime of party autonomy is quite restricted, as Norwegian courts generally use sources of soft law as a corroboration of Norwegian law, but not as a correction.

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, 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 2.2 Asia: Coordinated by Yuko Nishitani and Béligh Elbalti, 21 China (Mainland): Chinese Perspectives on the Hague Principles

2021 ◽  
Author(s):  
He Qisheng
Keyword(s):  
International Law ◽  
Mainland China ◽  
Contract Law ◽  
Private International Law ◽  
Party Autonomy ◽  
Republic Of China ◽  
The Hague ◽  
The Law ◽  
China Mainland ◽  
Article 5

This chapter addresses Chinese perspectives on the Hague Principles. The modern legislation of private international law in China began with the establishment of choice of law in contracts. The first statute enacting private international law rules was the Foreign Economic Contract Law of 1985. Article 5 of the Law stipulated that the parties to a contract may choose the law applicable to the contract dispute. Since the promulgation of the Foreign Economic Contract Law, party autonomy and the closest connection doctrine have been two major approaches in determining the law applicable to a contract dispute. In 2010, the National People’s Congress of China promulgated a new private international law: the Law of the People’s Republic of China (PRC) on Application of Law for Foreign-Related Civil Relationships. The chapter then compares the current position of private international law of contract in Mainland China with the Hague Principles.

Part 2 National and Regional Reports, Part 2.5 Latin America: Coordinated by Lauro Gama and José Antonio Moreno Rodríguez, 61 Mexico: Mexican Perspectives on the Hague Principles

2021 ◽  
Author(s):  
Albornoz María Mercedes ◽  
Martín Nuria González
Keyword(s):  
Latin America ◽  
Comparative Law ◽  
Third Parties ◽  
Private International Law ◽  
Party Autonomy ◽  
Formal Validity ◽  
The Hague ◽  
The Law ◽  
Lex Mercatoria ◽  
The Right

This chapter explores Mexican perspectives on the Hague Principles. The Inter-American Convention on the Law Applicable to International Contracts (the Mexico Convention) includes party autonomy in Article 7, according to which ‘the contract shall be governed by the law chosen by the parties’. This rule admits express and also tacit choice of law, provided the latter is ‘evident from the parties’ behaviour and the clauses of the contract, considered as a whole’. Following this provision, the parties to the international contract can select the law applicable to the entire contract or to a part of it. Moreover, Article 8 establishes that the parties can at any time make or modify their choice, but such new choice ‘shall not affect the formal validity of the contract nor the right of third parties’. The chapter then considers the existence of a Project of Private International Law Act for Mexico, developed within the Mexican Academy of Private International and Comparative Law (AMEDIP). For the topic of international contracts, the project literally incorporates the provisions of the Mexico Convention. Here, the Hague Principles could bring enhanced precision on the lex mercatoria as the object of the parties’ choice.

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, 59 Costa Rica: Costa Rican Perspectives on the Hague Principles

2021 ◽  
Author(s):  
Chan Anayansy Rojas ◽  
París Mauricio
Keyword(s):  
Costa Rica ◽  
International Law ◽  
Costa Rican ◽  
Private International Law ◽  
International Treaties ◽  
Commercial Arbitration ◽  
The Hague ◽  
The Law ◽  
Local Courts ◽  
Article 5

This chapter assesses Costa Rican perspectives on the Hague Principles. Costa Rica does not have a systematic and codified system that regulates conflicts of law, usually known in Costa Rica as private international law (PIL). Instead, the main sources of PIL in Costa Rica are: (i) international treaties; (ii) the Civil Code, the Code of Civil Procedures, and other domestic laws; and (iii) the Law on International Commercial Arbitration. In general, Costa Rica’s private international law regime, applicable to international commercial contracts, allows for parties to select the law of their choice as long as it does not breach public policy or harm a third party’s interest. According to Article 5 of the Organizational Law of the Judiciary, courts cannot excuse themselves from exercising their authority or from ruling in matters of their competence for lack of a rule to apply and they must do so in accordance with the written and unwritten rules. Unwritten rules refer to the general principles of law, usages and practices, and case law, according to the hierarchical order of their legal sources. Such rules serve to interpret, integrate, and delimit the field of application of law. Therefore, the local courts have limited themselves to only apply domestic law and have consequently restrained themselves from applying the Hague Principles or other soft law instruments as a persuasive authority source.

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 2.3 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.

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