First South American Congress of Private International Law
The First South American Congress of Private International Law was an international congress on private international law (or conflict of laws) and an ad-hoc codifier forum of international conflict of laws treaties held in Montevideo from 25 August 1888 to 18 February 1889,[1][2] in which eight treaties and an additional protocol were passed that covered practically all the subjects of conflicts of laws of that time.[3] These were one of the first treaties on conflict of laws to come into force in the world.[4]
Invitation
On 14 February 1888 the Minister of Foreign Affairs of Argentina, Norberto Quirno Costa, and the Minister Plenipotentiary of Uruguay to Argentina, Gonzalo Ramírez, met in Buenos Aires in order to convene a congress of South American countries with the purpose of standardizing and unifying through a treaty the subjects related to private international law. The Congress on Private International Law would be organized by the governments of Argentina and Uruguay the next 25 August in Montevideo.[1][2]
On 10 March 1888, Quirno Costa sent separated but simultaneous invitations to the governments of Bolivia, Brazil, Colombia, Chile, Ecuador, Paraguay, Peru and Venezuela.[1]
Governments of Bolivia, Brazil, Chile, Paraguay and Peru accepted to the invitation.[1] Government of Colombia declined the invitation because it was necessary to review the current legislation due to the recent reform of the Colombian Constitution, task that prevented it from attending the Congress since it would not be done before the beginning of the Congress. In the case of Ecuador, it declined the invitation because they were in the middle of elections, so there would be an imminent change of government functionaries, and the new functionaries should be the ones who select and sent representatives. Venezuelan government declined the invitation because "the narrow time" since they received it to the date of beginning of the Congress, and due to the distance their plenipotentiary would have to travel would make it impossible to attend.[1]
Congress
Attendants
Attended to the Congress Roque Sáenz Peña and Manuel Quintana as representatives of the Republic of Argentina, Santiago Vaca Guzmán as the representative of the Republic of Bolivia, Domingos de Andrade Figueira as the representative of the Empire of Brazil, Guillermo Matta and Belisario Prats as the representatives of the Republic of Chile, Benjamín Aceval and José Zacarías Caminos as the representatives of the Republic of Paraguay, Cesáreo Chacaltana and Manuel María Gálvez as the representatives of the Republic of Peru, and Ildefonso García Lagos and Gonzalo Ramírez as the representatives of the Oriental Republic of Uruguay.[3][5]
In few of the first sessions attended as temporary representatives of Brazil the Baron of Alencar and Juan Duarte Da Ponte Ribeiro. The appointed Minister Plenipotentiary Domingos de Andrade Figueira joined in the 15th session of 10 December due to the successive extensions of the works of the Brazilian parliament.
Opening session
The opening session took place in 25 August of 1888. Ildefonso García Lagos said in his opening speech that with the advance of the legal sciences it is already possible to create fixed rules that are able to resolve the conflicts caused by the application of its laws when dealing with private relations, without detriment to the sovereignty of nations.[6]
He also added that the frequency and ease with international transactions occurs and the multiplicity and importance of the commerce that link the South American countries each other and to the rest of the world required to materialize an international agreement for the solution of issues that affect those legal relations.[6]
Meanwhile, Norberto Quirno Costa mentioned that nationals and foreigners who join the country should not feel stranger to the system neither being harmed by the conflicts of laws in regard to their person, acts or properties, thus making civil relations easier. Also as the South American countries progress and their international relations increase, the links between people are narrower and the existence of common rules is more necessary.[6]
However, in the 12th session of 1 December, on the ocassion of the discussion of the project on international criminal law treaty introduced at the 7th session of 10 October, Sáenz Peña said that they attended the Congress not to standardize laws as expressed in the letter of invitation to the Congress, because this would imply reviewing domestic laws of each country, which would mean violating the principle of the inviolability of the States, but they were there to discuss the applicable law and the competent jurisdiction in a case with international elements.[7]
He also said:[7]
Estudiamos, Señores, una ciencia de relacion, que nace precisamente de esa diversidad de las legislaciones, á diferencia del derecho interno, que tiene una vida incondicional, que tiene una existencia propia que vive en todos los casos y contra todas las hipótesis; si suprimimos, entre tanto, como lo quiere Bluntschli, las fronteras que separan á los pueblos, si los confundimos por un momento en una sola nacionalidad, el Derecho Internacional Privado, habría desaparecido con la última soberanía local, con la última ley territorial... |
Gentlemen, we study a science of relation, that is born precisely from that diversity of legislations, unlike the domestic law, that has an unconditional life, has its own existence that lives in all cases and against all the hypotheses; meanwhile, if we suppress, as Bluntschli wants, the borders that separate the peoples, if we merge them for a moment in a single nationality, the Private International Law would have disappeared with the last local sovereignty, with the last domestic law... |
Treaties
Treaty on International Civil Law
This treaty deals with various subjects: capacity of physical and juridical persons, domicile, absence, marriage, parental authority, filiation, guardianship, property, legal acts, inheritance, prescription and jurisdiction.
The connecting factor chosen by the treaty regarding capacity is the domicile.
Regarding jurisdiction, title XIV regulates direct international jurisdiction. In its article 56 provides for action in personam shall be competent the judge of the State whose law regulates the legal act to be under trial. It also allows as a concurrent forum the judge of the domicile of the defendant.[8]
On top of that general rule, the treaty provides specific solutions of jurisdiction according to the subject in question: for example, the judge of the domicile of the person (for cases of absence, capacity, parental authority and guardianship, marriage and its validity, personal effects, divorce, etc.), the judge of the location of property (for actions in rem, property of the persons lacking capacity, matrimonial property, hereditary property) or the judge of the place of residence (urgent measures for the personal relations of the marriage, and for minors and disabled people).[8]
Treaty on International Commercial Law
Treaty on International Procedural Law
Treaty on International Procedural Law of 1889 regulates subjects related to Procedural Law. Among its provisions, its first article establishes that the procedure and its incidents are governed by the law of the State where they are promoted (the principle lex fori regit processum). Its article 2 establishes that the admission and evaluation of the evidence are governed according to the law of the merits of the case.[9]
Title II on legalization requires the legalization of judgments, awards and other authentic documents in order to take effect in another State party. In order to achieve that, legalization must be carried out in accordance with the laws of the State where it was issued and performed by the accredited diplomatic or consular agent of the State where the enforcement is to be sought.[9]
Title III regulates issues related to the fulfilment of letters rogatory, judgments and foreign arbitral awards. For foreign judgments and arbitral awards issued in a State party, it establishes the general rule of recognition, subject to certain requirements: that the judgment or award has been issued by a competent court in the international sphere, that it is under res judicata in the State where it has been issued, that the proceeding followed due process and it does not go against the laws of public policy of the country where the recognition or enforcement is requested.[9]
Article 6 lists the necessary documents to request the fulfilment of judgments and arbitral awards. Article 7 provides that the procedure for judgments and awards shall be determed by the procedural law of the State where the enforcement will be requested. Article 8 provides the extraterritorial validity of acts of non-contentious jurisdiction, in accordance with the rules of the preceding articles. Article 9 provides that letters rogatory whose purpose is a judicial proceeding shall be carried out provided they meet the requirements of the Treaty.[9]
Treaty on International Penal Law
Treaty on Literary and Artistic Property
Treaty on Commercial and Industrial Trademarks
Treaty on Letters Patents
Convention on the Exercise of Liberal Professions
The Convention on the Exercise of Liberal Professions rules that the holders of an academic degree obtained in a public education institution of a state party are allowed to automatically validate their degrees in another state party provided that the following requiremente are fulfilled: the exhibition of the degree duly legalized and prove that its owner is the one who is asking the validation. According to Quintin Alfonsin, this treaty deals with the validation of academic degrees for a profession in another state party but not with the practice of that profession itself, the latter being regulated by the domestic law instead.[10]
Additional Protocol to the Treaties on Private International Law
The Additional Protocol to the Treaties of 1889 is applicable to the other eight treaties and it regulated general subjects of private international law.[4]
It establishes the application of foreign laws of the contracting countries depending on the specific case, regardless of whether the persons involved are national or foreign.[4] It also provides that the judge must apply ex officio the law of the legal system referred by the conflict rule, although granting the parties the opportunity to prove the existence and content of that law.
Furthermore, it establishes that all the appeals available in the procedural law of the place of the process may be used even if foreign law are to be applied in the case.
Its fourth article provides the international public policy exception,[4] that works once the applicable law of the legal relationship referred by the conflict rule has been determined, which a judge may invoke in a case to reject the application of that applicable law due to it infringes the legal system of the competent jurisdiction.[11] This article was inspired by article 95 of the Draft Code of Private International Law of Gonzalo Ramirez.[11][12]
Signatories and ratifications
| Treaty | Argentina | Bolivia | Brazil | Chile | Colombia [t 1] | Ecuador [t 1] | Paraguay | Peru | Uruguay |
|---|---|---|---|---|---|---|---|---|---|
| Treaty on International Civil Law of 1889 | Ratified | Ratified | No | No | Adhered | No | Ratified | Ratified | Ratified |
| Treaty on International Commercial Law of 1889 | Ratified | Ratified | Signed | Signed | Adhered | No | Ratified | Ratified | Ratified |
| Treaty on International Procedural Law of 1889 | Ratified | Ratified | Signed | Signed | Adhered | No | Ratified | Ratified | Ratified |
| Treaty on International Penal Law of 1889 | Ratified | Ratified | No | No | No | No | Ratified | Ratified | Ratified |
| Treaty on Literary and Artistic Property of 1889 [t 2] | Ratified | Ratified | Signed | Signed | No | No | Ratified | Ratified | Ratified |
| Treaty on Commercial and Industrial Trademarks of 1889 | Ratified | Ratified | Signed | Signed | No | No | Ratified | Ratified | Ratified |
| Treaty on Letters Patent of 1889 | Ratified | Ratified | Signed | Signed | No | No | Ratified | Ratified | Ratified |
| Convention on the Exercise of Liberal Professions of 1889 | Ratified | Ratified | Adhesion subject to later ratification |
No | Adhered | Adhered | Ratified | Ratified | Ratified |
| Additional Protocol to the Treaties on Private International Law of 1889 | Ratified | Ratified | No | No | No | No | Ratified | Ratified | Ratified |
- Notes
- ^ a b Did not attend the Congress.
- ^ Other non-South American countries also adhered to this treaty: France in 1896,[13] Spain[13] and Italy in 1900,[13] Belgium in 1903,[13] Germany,[citation needed] Austria[citation needed] and Hungary,[citation needed] adhesions effective with Argentina,[13] Bolivia[citation needed] and Paraguay.[13]
References
- ^ a b c d e Congreso Sud-Americano de Derecho Internacional Privado 1889, p. 7-18
- ^ a b Argúas, Margarita (1973). "The Montevideo Treaties of 1889 and 1940 and their Influence on the Unification of Private International Law in South America". The Present State of International Law and Other Essays. Springer. pp. 345–360. ISBN 978-94-017-4497-3.
- ^ a b Silva Alonso, Ramón (2002). "La contratación internacional en América: del Congreso Sudamericano de DIP de 1889 a la V Conferenica Interamericana de Derecho Internacional Privado". In Kleinheisterkamp, Jan; Lorenzo Idiarte, Gonzalo A. (eds.). Avances del Derecho Internacional Privado en América Latina. Liber Amicorum Jürgen Samtleben (in Spanish). Fundación de Cultura Universitaria. pp. 25–26. ISBN 9974-2-0418-6.
- ^ a b c d Fresnedo 2004, pp. 146–148
- ^ Congreso Sud-Americano de Derecho Internacional Privado 1889, p. 19-20
- ^ a b c Congreso Sud-Americano de Derecho Internacional Privado 1889, p. 21-27
- ^ a b Congreso Sud-Americano de Derecho Internacional Privado 1889, p. 137-159
- ^ a b Dreyzin de Klor, Adriana; Uriondo de Martinoli, Amalia; Noodt Taquela, María Blanca (2003). «Dimensiones convencional e institucional de los sistemas de jurisdicción internacional de los Estados mercosureños». In Fernández Arroyo, Diego P. Derecho internacional privado de los estados del Mercosur (in Spanish). pp. 169-231.
- ^ a b c d Vescovi 2000, pp. 159–160
- ^ Alfonsín, Quintín (1961). Sistema de Derecho Civil Internacional. Curso de derecho privado internacional con especial referencia al derecho uruguayo y los tratados de Montevideo (in Spanish). Vol. 1 (1st ed.). Montevideo: Facultad de Derecho y Ciencias Sociales, Universidad de la República. pp. 327–337. OCLC 21792271.
- ^ a b Fresnedo 2004, pp. 268–283
- ^ Ramírez 1888, p. 59: "Artículo 95. Las leyes de un Estado no tendrán jamás aplicacion en otro cuando sus prescripciones se opongan al Derecho Público ó Criminal de ese Estado, ó estén en pugna con los principios fundamentales de su organizacion social y política.".
- ^ a b c d e f Bowker, Richard Rogers (1912). Copyright, Its History and Its Law. The Riverside Press Cambridge. pp. 331, 425–428.
Bibliography
- Actas de las sesiones del Congreso Sud-Americano de Derecho Internacional Privado [Sessions' proceedings from the South American Congress of Private International Law] (PDF) (in Spanish). Imprenta de Juan A. Alsina. 1889.
- Fernández Arroyo, Diego P., ed. (2003). Derecho internacional privado de los estados del Mercosur (in Spanish). Zavalia. ISBN 950-572-626-0.
- Fresnedo de Aguirre, Cecilia (April 2004). Curso de Derecho Internacional Privado (in Spanish). Vol. Tomo I: Parte General (2nd ed.). Montevideo: Fundación de Cultura Universitaria. pp. 127–133, 146–148. ISBN 978-9974-2-0391-0. OCLC 56034181.
{{cite book}}: Check|isbn=value: checksum (help); Unknown parameter|ignore-isbn-error=ignored (|isbn=suggested) (help) - Ramírez, Gonzalo (1888). Proyecto de Código de Derecho Internacional Privado y su comentario (in Spanish). Buenos Aires: Félix Lajouane, Ed. OCLC 934160826.
- Vescovi, Eduardo (2000). Derecho procesal civil internacional. Uruguay, el Mercosur y América (in Spanish). Montevideo: Ediciones Idea.