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Reproduced with permission of 40 American Journal of Comparative Law (1992) 587-616

Unification and Harmonization of Private Law in Latin America

Alejandro M. Garro [*]


There is a close affinity among Latin American legal systems to the extent that they share a similar socioeconomic structure, political culture and a common legal heritage. However, the movement towards unification has been circumscribed, with varying degrees of success, in the areas of public law and private international law.[1] In the area of private substantive law, the civil and commercial codes of the Latin American countries share a general framework from which general principles on commercial contracts may be derived. Despite such favorable conditions, the Latin American experience in the unification of private substantive law to date has not been very significant. This is especially disappointing, considering that countries lacking similar historical and cultural unity are progressively coming to terms with the international unification of law.[2] Helped by the dynamics of economic integration, the movement for legal unification and harmonization has gained momentum in Western Europe with the internationalization of trade, investment and [page 587] financing.[3] In Latin America, efforts to deal with unification have been traditionally frustrated by chauvinistic perspectives of sovereignty.[4] This trend, however, appears to be changing.

One is tempted to draw the conclusion that an awareness of the advantages of uniformity has been lacking in Latin America. This is certainly not the case. Substantial efforts have been made in this regard, and it is not uncommon to hear Latin Americans advocate the advantages of harmonization and unification.[5] In order to appreciate the obstacles and full range of forces conspiring against and working toward the unification of private law in Latin America, it is important to look at the key players engaged in that task at a regional level and to appreciate their efforts in context in other words, to look at the areas of the law which have been addressed, the legal and political realities which limited its working methods, and to review what they have been able to accomplish so far. A review of this topic appears to be timely, at a time when the Permanent Council of the Organization of American States has given priority to the topic of "international contractual arrangements" in the preparation of a draft agenda for the Fifth Specialized Conference on Private International Law. However, before speculating about the prospects of Latin America's future participation in regional and international unification efforts in the field of international commercial contracts and other areas of substantive law, one may need to consider the impact on unification of some political, economic, and cultural characteristics peculiar to the Latin American region. Those features and prevailing trends in areas such as legal education, access to basic tools of legal research, legal scholarship and judicial decisions play a significant role as contributing or retarding factors of legal harmonization and unification of substantive law.

This essay begins with a brief survey on Latin America's early unification efforts and current trends in the unification of private law and then moves to discuss Latin America's common core of private law from which general principles on international commercial contracts may be derived. The current level of harmonization of Latin American private law will be then tested against the background of some of the UNIDROIT Draft Principles for International Commercial Contracts, as the legislative policies embodied in those principles compare with similar principles in a few representative [page 588] Latin American jurisdictions. The paper concludes with a discussion of the limitations hindering Latin America's participation in regional and international unification efforts in the area of private law. It is submitted that at this particular juncture the interests of the Latin American countries will be better served by its active participation in harmonization and unification efforts at the international level, rather than by maintaining a position of regional isolation on international contractual arrangements.


The nations of Latin America have been among those championing the cause of unification of law. In the course of the 19th century the trend towards unification was reflected in the adoption of comprehensive multilateral treaties on private international law. Those comprehensive efforts towards unification were deeply rooted in the optimistic universal ideology current at the time.[6] At a time when lawyers and governments in Europe were becoming concerned with the question of unification and harmonization of laws, Latin America made the first attempt in the world to codify rules on private international law. Thus, in 1875 the Peruvian government convoked a group of Latin American jurists to Lima for the purpose of determining whether the Latin American community had sufficient concordant conceptions to agree on uniform codes of private law.[7] The Congress of Lima soon gave up the idea of drawing up uniform codes of substantive law, for it came to the conclusion that efforts to even out national rules on the conflict of laws and coordinate policies on Inter-American litigation was more necessary and more likely to be attained than the unification of civil and commercial law. Seven countries were able to agree on a treaty on conflict-of-law rules in the areas of personal status and legal capacity, marriage, succession, international jurisdiction and the enforcement of foreign judgments.[8] Due to some criticisms of substance and a war that [page 589] broke out in 1879 between Latin American nations of the Pacific, the treaty of Lima was ratified only by Peru and never came into force.[9]

More successful were the efforts of a handful of South American countries which, by the turn of the century, were able to agree at a conference held in Montevideo on eight treaties on private and procedural international law,[10] the basic rules of which were not touched by the 1940 revision of the treaties.[11] Some countries of Central America and the Andean region undertook similar attempts towards the unification of conflicts rules during the period immediately following the Lima and the first Montevideo congresses.[12] However, by far, the most comprehensive effort to codify principles [page 590] of choice of law, jurisdiction and judgment recognition on a regional basis was the 1928 Pan American "Code of Private International Law," better known as the "Bustamante Code."[13]

The Bustamante Code is a comprehensive document of 437 articles divided into a preliminary part and four books (international civil law, international commercial law, international criminal law, and international procedural law). At first glance, the Bustamante Code represents a great success for the efforts of unification. A closer look at its provisions, however, shows that it established only a veneer of unification. In matters of procedural law the Code deferred excessively to the local law of the member states.[14] In order to obtain wide hemispheric acceptance, the Bustamante Code expressly provided that the signatory nations were free to apply as "personal law" either the law of the domicile or that of nationality.[15] This, of course, meant that uniformity could not be achieved unless all nations voluntarily chose either domicile or nationality as the basis for "personal law", and accepted the Code without reservations. This did not occur, and not all nations were willing sign it at all even with these concessions to local concerns. Thus, Argentina, Colombia, Mexico, Paraguay, the United States and Uruguay refused to sign.[16] Of the fifteen countries that ratified the Bustamante Code,[17] [page 591] nine countries entered reservations of some kind,[18] and five out of those nine countries made crippling reservations exempting the application of the Code in all matters in which it conflicted with local law.[19] For all its inadequacies as a vehicle for hemispheric unification, the Bustamante Code remains the world's first attempt to codify such a vast area as the conflict of laws, and it remains the most comprehensive normative framework of Latin American law in the area of private international law.[20]


During the second part of this century, regional unification efforts in Latin America continued to be circumscribed mainly to the area the conflict of laws, but they took a more pragmatic turn. For over twenty years, the nations of the Western Hemisphere debated the feasibility of harmonizing the provisions of the Bustamante Code, the Montevideo treaties of 1940, and the relevant rules of the [page 592] First United States Restatement of Conflict of Laws.[21] The draft which embodied this effort was not well received,[22] and some members states raised the need for abandoning the approach of comprehensive codification of private international law, urging a move towards a gradual and progressive adoption of special conventions on specific questions.[23] The key player in this effort has been the Organization of American States (OAS), whose "Inter-American Juridical Committee" has been involved in the organization and preparation of Inter-American conventions.[24] The Inter-American Juridical Committee advised the OAS to convoke a specialized conference on private international law. At its meeting of April 1971, the General Assembly of the OAS decided to convoke an Inter-American Specialized Conference on Private International Law.[25] Since 1975, four specialized Inter-American conferences on private international law (known as CIDIP) have taken place, every five years. It is within this framework that in the last decades the [page 593] Inter-American Juridical Committee has been preparing studies, reports, and draft conventions for use by the CIDIP. As a result, a new generation of twenty-one Inter-American conventions on the conflict of laws and judicial cooperation have been adopted in four specialized conferences.[26]

The less pretentious initiatives of CIDIP are more limited in scope than earlier overall codification projects. From the [page 594] perspective of the unification of Latin American law, the impact of the Inter-American conventions as vehicles for harmonization and unification of private law is quite relative, but there is no question that some of the instruments adopted at the CIDIP enjoy wide hemispheric acceptance and that a few of them have been quite successful in coordinating policies for transnational litigation between the United States and the countries of Latin America.[27] Moreover, some of the conventions have served as vehicles for law reform.[28] Although a number of earlier multilateral treaties remain in force, they are increasingly being superseded by the Inter-American conventions.[29]

The traditional regionalist approach of Latin America towards the codification of private international, law may tell us something about the region's approach towards legal harmonization and unification of private law in general. As it is well known, the Hague Conference on Private International Law has prepared a number of conventions,[30] some of which have been widely accepted not only by [page 595] members of the European Community but also by the United States.[31] Although the United States has traditionally kept a position of isolation on the issue of international unification of law, its political interests in keeping close ties with the developing economies of Latin American through the OAS and its more significant trade interests with Western European nations prompted the United States to join the Hague Conference in 1964.[32] The Hague's Conference conventions have significantly influenced some of the Inter-American conventions.[33] Indeed, the recent ratification by the United States of two of the most successful efforts of CIDIP-I, the Inter-American Convention and Additional Protocol on Letters Rogatory and Service of Documents Abroad [34] and the Inter-American Convention on International Commercial Arbitration, was prompted by their similarities with the corresponding Hague Conference service convention [35] and with 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards.[36]

Why have the countries of Latin America decided to take a regionalist approach to unification rather than joining those undertaken by their most important trading partners? For one thing, only a handful of Latin American countries are members of the Hague Conference, whose official languages do not include Spanish or [page 596] Portuguese.[37] More importantly, the prevailing sentiment among Latin American countries has been that Latin America's political, social, and economic background is sufficiently different from that of Western Europe to justify a distinctive legal approach towards unification of private law.[38] Thus, when the U.S. delegate to CIDIP-IV suggested that the OAS members should join the Hague conventions on child abduction,[39] he was outvoted by the Latin American delegates, who considered advisable to prepare a special instrument in order to deal with the problems more effectively from a regional point of view.[40]

There are indeed significant differences between the socioeconomic structure and political culture prevailing in Western Europe and that in Latin America. It is not self-evident, however, that those differences genuinely prevent or inhibit Latin America from joining global unification efforts in the area of private law. More specifically, it is not altogether clear which areas of legal discrepancy would limit or preclude Latin American countries, if given the opportunity to be represented at the forums where global conventions are discussed, from reaching workable compromises or coordinate legal policies with the nations of Western Europe and the United States, especially in areas of concern to multilateral trade such as international commercial contracts.[41] The fact that many [page 597] Inter-American conventions follow so closely their Hague counterparts indicates the need to reexamine Latin, America's regionalist approach toward the unification of private law.[42] This is an issue on which OAS members were consulted in connection with the preparation of a draft agenda for CIDIP-V, a subject which is discussed next.


The interest of the Latin American countries in unifying or harmonizing approaches to the topic of international contracts started well before the 1989 Fourth Specialized Conference on Private International Law (CIDIP-IV). In 1987, the General Secretariat of the OAS called for a definition of the scope of a possible convention on "international contractual arrangements," for which purpose the Secretariat commissioned studies on different aspects of choice-of-law and jurisdictional issues related to international contracts.[43] CIDIP-IV thoughtfully decided not to adopt a convention in a subject as broad and unfocused as "international contractual arrangements,"[44] mainly because the necessary preparatory work had not [page 598] been carried out. However, with the sole abstention of Brazil, most delegations agreed on a set of choice of law principles which were modestly identified as "bases" governing the law applicable to international contracts.[45]

CIDIP-IV also requested the OAS General Assembly to give priority to the consideration of "international contractual arrangements."[46] Although the place and time for the Fifth Inter-American Specialized Conference on Private International Law (CIDIP-V) are not yet formally set, the OAS Permanent Council, the Committee on Juridical and Political Affairs, the General Secretariat, and the Inter-American Juridical Committee have been working for some time in the preparation of preliminary background documents and draft articles aimed at facilitating a meeting of experts and thereby the likelihood that CIDIP-V will produce a useful and broadly acceptable convention.[47] [page 599]

Together with the topic dealing with "civil aspects of traffic in minors," the draft agenda for CIDIP-V includes the topic of "international contractual arrangements." Preparatory work has been undertaken by two committees. On the one hand, the Inter-American Juridical Committee decided to start working on a draft convention on choice of law problems, having approved a "Draft Inter-American Convention on Law Applicable to International Contractual Arrangements."[48] The Committee on Juridical and Political Affairs decided firstly to request the opinion of the OAS member states on the agenda for CIDIP-V,[49] and secondly to set up a working group to draw up the draft agenda in light of the observations and comments submitted by the governments.[50] Six governments responded to the Committee's request,[51] all of which included the topic of "international contractual arrangements" as a priority item for CIDIP-V.[52]

It was not clear, however, what kind of issues were to be addressed within the broad realm of international contractual arrangements. Thus, the permanent representative of Uruguay to the OAS submitted to the Committee on Juridical and Political Affairs a questionnaire seeking to gather information about the current status of the law of the member countries and to identify the positions of [page 600] the queried governments as to the kind of instruments to be prepared for CIDIP-V.[53] Pursuant to this proposal. the member governments were asked to respond to a series of questions concerning how the domestic laws of each member country dealt with international contracts and what kind of efforts towards harmonization or unification should the GAS undertake. if any, in the drafting of uniform laws or conventions.[54] According to the General Secretariat for Juridical Affairs. only after receiving that information the members of the GAS would be in a position to decide the kind of format that the harmonization or unification efforts should take.[55]

The inquiry deals with different aspects related to the choice-of-law rules and substantive regulation of international contracts in each member country.[56] the international treaties on this matter [page 601] that each country has adhered to,[57] the format of the unification efforts that the OAS may or should undertake in the area of international contractual arrangements,[58] and questions related to the [page 602] international jurisdiction and arbitration.[59] A few governments answered the inquiry of the Committee on Juridical and Political Affairs.[60] It is not easy to discern the preferences of the queried governments as to the different courses of action to follow in the unification and harmonization efforts with regard to international contractual arrangements, Argentina and Canada support the joining of global efforts towards unification before working on regional conventions,[61] but Colombia, Costa Rica, Honduras, and Mexico [page 603] would prefer the work on the adoption of an Inter-American convention, preferably in the area of applicable law to international contracts.[62] The preparatory work undertaken by the Inter-American Juridical Committee suggests that in the area of "contractual arrangements" CIDIP-V is likely to limit its task to the choice-of-law problems, along the lines of the 1980 Rome Convention and the 1986 Hague Convention on Law Applicable to Contracts for the International Sale of Goods.[63] The Draft Inter-American Convention on Applicable Law approved by the Inter-Juridical Committee in 1991 actually follows this trend.[64] It remains to be seen whether the OAS will in the future extend its unification efforts to the area of substantive law.



During almost three hundred years of Spanish colonial domination, most of the law of the Indies applicable to Spain's ultramarine possessions was meant to be uniformly applied throughout the colonies.[65] A potentially unifying force was the appellate jurisdiction of the Council of Indies over decisions of the royal audiencias or [page 604] tribunals in Spanish America, although the nature and volume of Cases sent for review does not seem to have been very significant.[66] The reception of the French Code civil and the seminal legal scholarship that came with it represented no cultural breach with the heavily romanized Spanish institutions. It is noteworthy, however, that in contrast with the 19th century codification movement that took place on the European Continent, the codification movement in Latin America saw merit in rationalizing and simplifying the profuse and diffuse colonial legislation, rather than in the potential unifying effect that the reception of codes would bring in Latin America.[67]

French legal influence declined throughout the 2Oth century, and Latin American legal systems have increasingly drawn on other sources, especially Italian, at least in the area of commercial obligations and contracts.[68] Even so, there can be no doubt that, as to the area of private law, the early and lasting influence of the French codification definitely placed the legal systems of Central and South America within the civil law tradition. Within the Latin American legal family one may distinguish different subgroups according to the more or less direct influence received from European models.[69]

Thus, one may identify at the outset a small group of countries whose civil codes are close translations of the French Code civil, such as Haiti (1825-1830) and the Dominican Republic (1845-1884).[70] [page 605] A second group is represented by the last Spanish colonial posts in America, such as Cuba and Puerto Rico. Both adopted the Spanish Civil Code of 1889, although both legal systems have been influenced, in the case of Cuba, by structural notions of socialist legality and trade relations that existed for a long time with the former Soviet Union and Easter European countries,[71] and, in the case of Puerto Rico, by its continuing trade relations with continental U.S., the federal normative structure and American conceptions of procedural law.[72]

A third group may be represented by some countries of Central America whose civil codes were adopted by the beginning of this century, hence being able to draw directly from the Spanish Civil Code of 1889. This is the case of the civil codes of Honduras (1906) and Panama (1916). A fourth group, larger and more significant, is represented by Latin American countries which, despite their strong reliance on the French Code civil, chose to adopt codes of a more eclectic nature and, to that extent, may be considered of their own inspiration and technique. Within this group, the Civil Code of Chile (1855) drafted by the Venezuelan Andres Bello,[73] the Civil Code of Argentina (1869) drafted by Dalmacio Velez Sarsfield, and a Draft Civil Code for the Brazilian Empire drafted by Augusto Teixeira de Freitas (1856) stand out as the most original in inspiration and conception.[74]

A great deal of cross-fertilization, and therefore a significant step from the standpoint of harmonization and unification, took place through the Chilean and Argentine codes and Freitas' draft for Brazil. Thus, the Chilean Civil Code of 1855 was later adopted by El Salvador and Ecuador in 1860, and subsequently by Colombia in [page 606] 1873. The Chilean Civil Code and Freitas' draft had a more indirect but still significant influence in the drafting of the civil codes of Argentina. Paraguay adopted the Argentine Civil Code in 1876, and the civil code of Uruguay was in turn inspired by the Chilean, Argentine, and Brazilian codification projects. A fifth group is represented by more recent civil codes, such as the Brazilian Civil Code of 1917 and the Mexican Civil Code for the Federal District of 1928 (which served as a model of most state civil codes of Mexico). The Bolivian Civil Code of 1976 and the Pueruvian Civil Code of 1984 have followed the traditional trend of drawing from different European sources that came after the adoption of the Code civil.[75]

Recent Trends

The latest and more recent development in the private law systems of Latin America is represented by the trend in Argentina and Paraguay towards a unified approach, not only of substance but also formally, of civil and commercial obligations and contracts. The Argentine unified draft amended about 900 articles of the 1869 Civil Code, incorporating the main provisions on formation of contracts adopted by the 1980 Vienna Convention on International Sales of Goods, which had obtained an early ratification by Argentina,[76] incorporated the regulation of commercial contracts included in the Commercial Code,[77] blending the regulation of contracts which had been separately regulated in the civil and commercial codes.[78] The bill for a unified civil and commercial code was introduced in Congress in 1987 and obtained a quick approval by the lower House.[79] The draft was subject to discussion in academic and professional fora and received Senate approval in November 1991, but it was vetoed on December 23, 1991.

Paraguay adopted a unified civil and commercial code in 1985, which came into force on January 1, 1987.[80] This revision project [page 607] had been entrusted to a National Codification Commission in 1959, but the seminal work was undertaken by Professor Luis de Gasperi, from whom the Commission requested the preparation of a draft.[81] The draft was primarily inspired by the Italian Codice civile of 1942 and two drafts for the reform of the Argentine Civil Code completed in 1936.[82] Out of the 2800 articles of the new Paraguayan code, 2250 are taken from Professor de Gasperi's draft, which was finished in 1964.[83] The new code is similar in structure to the former Civil Code, but it contains five books dealing respectively with physical persons and legal entities (personas juridícas), legal transactions (actos juridícos) and obligations, contracts (now regulated in a separate book which includes those formerly regulated as commercial contracts in the Commercial Code plus business corporations, negotiable instruments, banking transactions, and insurance), property, and successions. Noticeably, the new Paraguayan code includes for the first time provisions on lesion,[84] unforeseeability (imprevisíon),[85] and abuse of rights (abuso del derecho).[86] Those institutions had been expressly rejected by the drafter of the Argentine Civil Code of 1869 adopted by Paraguay, but they had been incorporated into the Argentine code through amendments adopted in 1977.[87]


Admittedly, each Latin American legal order systems has its own systematics, but the variety of European sources that influenced the Latin American codes at one time or another, the structural changes separating the "old" from the "modern" codes, and even the recent trend towards the unification of civil and commercial obligations and contracts have not been able to erase the similar "legal expression" of Latin American private law. This common core is manifested in stylistic expression, legal phraseology and terminology.

There are, of course, differences of detail, but not of significant [page 608] relevance, at least in an area as general as the regulation of contracts. Thus, if one were to test some of the generalizations made above about the level of unification and diversity of Latin American private law against the background of the UNIDROIT Draft Principles for International Commercial Contracts (Principles),[88] one may be able to identify a common core of general principles surrounded by "hard and fast" rules leading to policy variations that range from inconsequential to substantial. For example, one can find hardly any discrepancy between the general principles applicable to domestic civil and commercial contracts between Latin America and the Draft UNIDROIT Principles such as contractual freedom,[89] the binding character of contracts,[90] and the prevalence of mandatory over "suppletory" or contractually derogable rules.[91] Even the binding force of course of dealing and express or implied usages [92] finds support, express or by doctrinal implication, in most Latin American commercial codes.[93]

Also the expansive notion of good faith found in Article 1.8 of the Principles,[94] already the subject of much discussion and disagreement during the discussions on Article 7 of the 1980 Vienna Convention,[95] finds wide doctrinal and eventually normative support in Latin America. Whereas the obligation of good faith in the formation of contracts may introduce a somewhat disturbing limitation on the right of a party to withdraw before the conclusion of a [page 609] contract, for a Latin American lawyer it. would be a proper tool with which judges may be able to avoid injustice by restricting the otherwise boundless right of a party to terminate the process of formation. Significantly, both the Argentine and Paraguayan new unified contract rules establish an affirmative obligation on the parties to conduct themselves in good faith during the preliminary negotiations, even before an offer comes into existence.[96]


Why, despite a common legal heritage that traces back almost five centuries, that is perpetuated by the reception of the European codification and its scholarly doctrine, and strengthened by similar socioeconomic and political structures, is the formal diversity of substantive private law the norm in Latin America and uniformity and harmonization still the exception? This question may be approached by discussing first the structural variables of an economic, political and legal nature that hinder Latin American progress toward a more harmonized or unified framework of private law at a regional level. Then one may discuss and even speculate about contemporary Latin American attitudes towards unification efforts of a more global or universal nature.

Limitations on Unification at a Regional Level

Foreign observers who look at the tortuous experience of South and Central Spanish-American countries with constitutionalism find it hard to understand why those countries never got together in a federal union, as did the thirteen colonies of North America did after gaining independence from Great Britain. This, of course, is not a theme to be discussed here, but Bolivar's unfulfilled aspiration of consolidating political unity underscores the paradox of Latin America's continued legal diversity in spite of such favorable conditions for unification such as a common language, a similar political structure, and a common legal heritage. From a strict normative standpoint, Latin American nations are far less integrated than a federal union such as the United States or a supranational arrangement such as the European Community.

It may be surprising to foreign observers to realize how little informed Latin American lawyers are about the legal systems of their sister republics. This lack of information is a result of many factors, among which include the difficulty posed by developing economies [page 610] against the background of long distances and poor means of communication and transportation, the historical significance of international trade with the Western Europe and United States as opposed to the more modest trade relationships among the Latin American countries, and a traditional, and up to a certain extent, unavoidable Eurocentric approach that has prevailed in Latin American legal scholarship on private law.

Latin American law revision commissions, judges, law professors and lawyers communicate with each other very little, but most often in conferences that take place in Europe or the United States. The most sophisticated legal comparativists in Latin American are likely to be more acquainted with some aspects of the law of commercial transactions in France, Spain, Italy, or even Germany or New York than with the legal system of another Latin American country. Moreover, it should be borne in mind that the OAS Inter-American Juridical Committee of the GAS does not function as a "Conference of Commissioners on Latin American Laws," and there is no "Latin American Law Institute" in charge of restating the weight of judicial or doctrinal authorities in the interpretation of the civil and commercial codes of Latin America.

The foregoing structural and cultural features that inhibit the unification of Latin American law are also reflected in the difficulties posed to harmonization by non-legislative means through the training of lawyers by law schools, and the lack of access to research tools that may throw light on the judicial or doctrinal path followed by other Latin American countries. There are no Latin American law schools with exchange or summer programs for teaching or studying in other Latin American countries, such as those conducted by some U.S.-based law schools. The legal literature and judicial decisions in Latin America do not seem to have a potential impact as a vehicle for harmonization. This is in large measure due to the drastic limitations imposed by economic underdevelopment on the availability and quality of legal research. Basic research tools such as updated and comprehensive legislative and case-law reports of other Latin American countries are out of reach of most Latin American law libraries. Even if adequate sources were available, a notoriously underpaid academic community and an understaffed and overworked judiciary is unlikely to be able to process, digest and think over the many intricate issues posed by legal unification.

With the exception of a handful of countries, the legal literature indigenous to Latin America is comparatively scarce and of relative usefulness. Doctrinal materials include extensive references to broad scientific principles and citations to "classical" European legal commentators, but very little insight or personal observation as to what is the law in action in other Latin American countries. In [page 611] some Latin American countries, the vacuum left by "native" legal literature is filled with the widespread use of Spanish translations of old French, Italian or even German scholarly treatises. To a certain extent, the borrowing of legal literature from other Latin American countries has worked in favor of harmonization and unification. Civil law treatises available from leading legal publishers in Argentina, Uruguay, Chile, Colombia and Mexico are used in other countries of the region. This borrowing of legal literature has worked, to a certain extent more in Latin America than in other regions, to favor the cause of harmonization.

Judicial decisions are not likely to prove an efficient means of Latin American legal unification. First, because in many Latin American countries it is uncertain in both theory and practice the extent to which precedents contribute to a unified interpretative approach of the domestic law. The prevailing style of legal scholarship rarely turns to the operative facts of prior cases in support of a legal proposition. Although most Latin American supreme courts, including the supreme court of a federal country such as Mexico, is meant to unify the interpretation of law within the country through the appellate jurisdiction, and despite the compromises in practice and in some instances in theory made to the traditional non-recognition of the binding force of precedents, the lack of easy access to published precedents severely conspires against the use of judicial decisions as a vehicle of unification of law in the same jurisdiction.

Few Latin American countries have adequate systems of reporting court decisions. Those accustomed to computerized research tools and skillfully indexed and cross-referenced legal digests may not fully appreciate the critical nature of the indexing function to obtain a full and clear picture of the weight of authority in a Latin American country on a particular point or question. Even if foreign judicial decisions were widely available to the Latin American judge, it is doubtful the extent to which one may rely on the convenience of harmonization or the need to promote the uniform application of a uniform text as against other elements to be balanced in the complexities of the judicial process. To the extent that foreign court decisions are not binding, the paramount concern of most courts will be to reach a "fair" decision, even though not in harmony with decisions in similar cases reached by foreign courts.

A similar problem is faced in the efforts to reach harmonization and unification through the process of law reform. Because the principal goal is to satisfy demands for "better" laws or the concerns of special interest groups, the cause of unification is often sacrificed in the process. This has been the experience of recent Latin American law reform efforts in the field of civil and commercial law. It does not appear that bringing the law of a particular Latin American [page 612] country into line with the law of other countries has been a matter of high priority. A review of the travaux préparatoires and exposes de motifs of recent codes adopted in Latin America indicates that the emphasis has been on improvement of the law, generally by adopting a provision of "modern" European codes, rather than bringing the law in harmony with those of other Latin American countries. And it is unlikely that law reformers in Latin America would hesitate to abandon a widely-accepted position in other Latin American countries in order to adopt what they perceive to be a new, progressive rule.

The fact that law reformers are not likely to compromise what they believe to be a good rule for the cause of unification highlights that the challenge faced by those involved in the unification of law is not merely to harmonize and restate but also to choose the best approach among various alternatives. It also indicates that the cause of unification may be promoted not necessarily out of a desire to pursue unification but rather as a vehicle of sound law reform. To the extent that Latin America traditionally has been influenced by European reform efforts at a domestic level, it is to be anticipated that a sound reform project for the international unification of law is likely to be seriously considered in Latin America. In fact, the influence of the Hague conventions on so many Inter-American Conventions, and the current trend to follow the 1980 Rome Convention and the 1986 Hague Convention on the Law Applicable to International Sales, suggests that unification efforts in Latin America are likely to follow those adopted in Europe under the auspices of intergovernmental organizations. Whether the Latin American nations are likely to coordinate their unification efforts with those being currently undertaken by UNCITRAL, UNIDROIT or the Hague Conference on Private International Law very much depends on how easy or difficult one perceives Latin America's participation in worldwide unification efforts.

Some Speculation About Latin America's Participation in International Unification Efforts

Many of the obstacles to the unification and harmonization of Latin American laws at a regional level acquire a different perspective at an international level. It may be useful to review the most frequently invoked reasons for Latin America's lack of participation in international unification efforts. Admittedly, the attitude of many Latin American countries towards some international instruments has not been altogether enthusiastic or coherent. There has been a traditional reluctance or even hostility towards the adoption of international conventions prepared by non-regional institutions. [page 613] Traditionally, this unarticulated distrust has been mostly based on the belief that those international instruments favored the interests of industrialized countries at the expense of developing countries.

This attitude seems to be changing, as reflected in the free trade agreements eagerly pursued by most Latin American countries and the concomitant willingness of governments to insert themselves into a market oriented international economy. This change of position already has been reflected in Latin America's increasing participation in international conventions. To the extent that the objections against the capitalistic origins of the international instruments are partly unfounded and only partially justified in light of past experience, the best way to confront the misgivings is to join efforts to agree on workable compromises leading to the adoption of rules sufficiently balanced to meet the interests of parties from North and South. The alternative left is to remain isolated in an increasingly and unavoidably interdependent world, or to submit to the courts and laws of the party with superior bargaining power, whose terms are ultimately likely to prevail.

It appears that the traditional reluctance on the part of developing countries to join international conventions under the auspices of Europe-centered institutions, such as the Hague Conference and UNIDROIT, has been due in significant measure to their inadequate participation in the preparation of those instruments.[97] To the extent that the more or less favorable impact of any uniform law in a given jurisdiction depends, up to a certain point at least, on the more or less active participation of that country in the preparation of a particular instrument, it is plausible to think that increasing Latin American participation in global unification efforts may result in greater acceptability of uniform and model laws.

Arguably, the insufficient development of domestic laws in Latin America may be an obstacle to unification.[98] A discussion of this obstacle would first require us to determine what is understood as an "underdeveloped" as opposed to a "developed" legal system; whether it is the generality versus the case-like detail of its rules, or an enriching and reliable body of case-law as a complement to clear hard and fast rules, etc. From the standpoint of legislative activity, many Latin American countries may be considered "overdeveloped" rather than "underdeveloped," but whatever their shortcomings to [page 614] deal aptly with the socioeconomic needs of those societies, unification efforts should be welcomed as a concomitant to law reform.

It has also been suggested that the adoption of international instruments may be hindered in developing countries because their legislatures may have more urgent problems to cope with.[99] But parliamentary inertia and bureaucratic delays are not distinctive features of Latin American parliaments, hence this factor may not be counted as particular obstacle to the diffusion of uniform laws in Latin America.[100] A genuine obstacle may arguably come from the difficulties encountered by business people and lawyers from developing countries in interpreting and applying legal texts drafted in a style and using terminology with which they are not familiar. Difficulties in reaching out the business sectors particularly affected by unification projects is not a problem peculiar to Latin America. This very much depends on the level of organization of a particular branch of trade, and within each branch, one must distinguish further between experienced international traders and small unsophisticated dealers.[101]

The federal form of states of some Latin American countries should not present significant problems to the extent that adoption of a uniform text will not require the displacement of the legislative jurisdiction of the federated units. In matters of commercial law, the legislative competence of the federal congresses in Argentina, Brazil and Mexico allows these countries to give effect throughout their territories to international conventions dealing with international trade law. It is well known, however, that the real trouble in ensuring uniformity arises immediately after the incorporation of a uniform text into the domestic law, and on this question the problems faced on the international level are also faced on the regional level.


What conclusions may be drawn as to the prospects of unification and harmonization of law in Latin America? Perhaps it is not difficult to predict what would happen in the area of unification of some aspects of public law and private international law. As to the area of public law, and to the extent that supranational mechanisms of enforcement have been in place, the Inter-American Commission and the Court of Human Rights will continue to create a substantive [page 615] body of Latin American constitutional law under the American Convention on Human Rights. This jurisprudential effort towards uniformity is comparable to the many restrictions imposed through the incorporation doctrine that extended the protection of the Bill of Rights to the states. As to the area of private international law, the Inter-American Juridical Committee of the OAS will continue drafting Inter-American conventions with a piecemeal approach to the unification of choice of law rules. It seems too early at this point, however, to draw any optimistic conclusions or make any clear predictions as to the prospects of drawing together approaches to substantive private law.

The OAS is likely to discard over ambitious unification projects, and, to that extent, Latin America should be more readily prepare for joining international unification efforts than keeping a regionalist approach. The time is ripe for this to happen. Whereas in the past many efforts toward unification have been frustrated by chauvinistic perspectives of sovereignty, I doubt that many Latin American countries would nowadays look to efforts toward unification as a threat to their national sovereignty. During the last decade, and at an increasing pace, Latin American governments now seem willing to join the international community through regional free trade agreements, from NAFTA in the northern part of the Western Hemisphere, ANCOM in the Andean region to MERCOSUR in the southern cone.

Strengthening economic regional blocks seems to make eminent sense in a new economic order, and Latin American nations have nothing to gain by taking a position of regional isolation in the efforts towards the unification of international contractual arrangements. Although trade among Latin American countries will not necessarily be promoted by unifying their laws, it is plausible that trade with Latin America will be fostered if countries of the region were to join global unification efforts in which Latin Americans are given the chance to express their views. After all, in a region actively seeking capital investments, unification forces are likely to succeed once they can demonstrate the practical need, or at least a significant convenience, of making their legal systems more coherent and comprehensible-hence more reliable and attractive-to potential foreign investors. [page 616]


* ALEJANDRO M. GARRO is Lecturer in Law, Columbia University; Abogado, (National University of La Plata); LL.M. (Louisiana State University); JSD (Columbia University). This paper is based on the author's remarks at a conference on the UNIDROIT Draft Principles for International Commercial Contracts, University of Miami School of Law, January 10-11, 1992. I am thankful to Professors E. Allan Farnsworth and Joachim Bonell for their encouragement, and I am particularly indebted to Professor José Luis Siqueiros for helpful criticisms and suggestions to earlier drafts. Errors of fact, judgment and taste are of course mine.

1. In its broadest sense, the term "private international law" includes not only rules concerning applicable law (conflicts of laws), but also the coordination, harmonization, and unification of law in a spectrum of legal concerns as diverse as powers of attorney to be used abroad, the service of process and taking of evidence abroad, recognition and enforcement of foreign interim judicial measures, judgments, and arbitral awards, child abduction, etc.

2. See generally Mancini, "The Incorporation of Community Law into the Domestic Laws of the Member States of the European Communities," in International Uniform Practice, Acts and Proceedings of the 3rd Congress on Private Law Held by the International Institute for the Unification of Private Law 13 (1988) [hereafter cited as "UNIDROIT 3rd Congress on Private Law"]. See also Lando, "European Contract Law," 31 Am. J. Comp. L. 653 (1983). The Council of Europe has prepared a number of European Conventions including a European Convention on Compulsory Insurance Against Civil Liability Arising out of Motor Accidents and the European Convention on Information on Foreign Law.

3. See generally Tebbens, "Private International Law and the Single European Market: Coexistence or Cohabitation?," in Forty Years On: The Evolution of Postwar Private International Law in Europe 49, 61 (1990).

4. See Lorenzen, "The Enforcement of American Judgments Abroad," 29 Yale L.J. 188 (1920) (referring to Latin America's "deep-rooted distrust in the administration of justice in other countries").

5. See, e.g., J. Barrera Graf, El Derecho Mercantil En La America Latina 88 (1963).

6. See generally De Maekelt, "General Rules of Private International Law in the Americas," 177 Recueil Des Courts 193 (1982-IV); Goldschmidt, "Droit international privé Latino-Américain," 100 Journal De Droit International 65 (1973); R. Herbert, Del Congreso De Lima A La CIDIP-III (Vorträge, Reden und Berichte aus dem Europa-Institut, Saarbrücken 1984).

7. See R. David, "The International Unification of Private Law," in Volume II, Chapter 5, International Encycepedia of Comparative Law 149 (1969) [hereinafter cited as "David, The International Unification of Private Law"].

8. The Congress of Lima met on December 9, 1877, and the treaty was signed on November 9, 1878, by representatives of Argentina, Bolivia, Chile, Costa Rica, Ecuador, Peru and Venezuela. The treaty consisted of 60 articles divided into 8 chapters. See De Maekelt, supra n. 6, at 222.

9. The only reason of legal substance which appeared as a genuine obstacle to reach an agreement was the adoption by the treaty of Lima of the conflicts rule of nationality for all matters relating to personal status and legal capacity. Most of the Latin American countries had adopted the domicile rule. Several provisions of the failed treaty of Lima were later incorporated into a bilateral agreement on the conflict of laws entered into by Ecuador and Colombia in 1906. See De Maekelt, supra n. 6, at 222.

10. The Montevideo Congress was held on August 25, 1888, and most of the treaties were ratified in 1889 by Argentina, Bolivia, Colombia, and Peru. The Protocol convoking the meeting stated that its purpose was "to standardize by means of a treaty the various matters embraced in private international law." Some delegates made clear, however, that the purpose of the meeting was not the unification of domestic substantive law, but rather the harmonization of rules on conflicts of laws. See 1 V. Romero Del Prado, Manual De Derecho Internacional Privado 604, 606 (1944). The 1889 treaties covered a series of issues on the following topics: international procedural law, literary and artistic property, patents of invention, trademarks, international penal law, international civil law, international commercial law, the practice of learned professions, and an additional protocol.

11. At the fiftieth anniversary of the first Montevideo Congress, the governments of Argentina and Uruguay convened all governments who had sent delegates to the first congress for a second South American Congress on Private International Law. This second congress was attended by delegates of Argentina, Bolivia, Chile, Paraguay, Peru and Uruguay, but the nine treaties that were signed were ratified only by Argentina, Paraguay, and Uruguay. See De Maekelt, supra n. 6, at 224. For an English translation of the 1940 Montevideo treaties, see 37 Am. J. Int'l. L. Supp. 109 (1943). See also 1 E. Rabel, Conflict of Laws: A Comparative Study 32 (2d ed. 1958).

12. In 1897 the First Central American Juridical Congress was held in Guatemala. Several treaties, largely based on the 1889 Montevideo treaties, were signed at this meeting, none of which were ratified. The instruments adopted at that meeting dealt with some issues in the area of commercial, criminal, civil, procedural, literary, artistic and industrial property, and extradition law. The Second Central American Juridical Congress met in El Salvador in 1901 for the purpose of revising the treaties adopted at the first congress. However, the revised treaties failed to enter into force because only El Salvador ratified them. See De Maekelt, supra n. 6, at 224. Five countries of the Andean region met in 1911 at the so-called Bolivarian Congress in Caracas for the purpose "to examine those points of private international law which may be subject to different interpretations, and to determine the best way to unify them." The meeting resulted in agreements on Extradition and Recognition of Foreign Acts. See generally De Maekelt, supra n. 6, at 224-225; G. Parra Aranguren, El Acuerdo Boliviano Sobre Ejecucion De Actos Extranjeros (1911); A La Luz De La Jurisprudencia Venezolana (1976).

13. The Bustamante Code was adopted at the VIth International Conference of American States held in Havana, Cuba. The text is reproduced in 86 L.N.T.S. 111; The International Conferences of America States 1889-1928, p, 367, (J.B. Scott ed., 1931); 4 Hudson, International Legislation 2279 (1931), See generally J. Samtleben, Derecho Internacional Privado En America Latina. Teoria y Practica Del Codigo Bustamante (1983); Lorenzen, "The Pan American Code of Private International Law," 4 Tul. L. Rev. 499 (1930).

14. For example, in matters of enforcement of foreign judgments (Arts. 423-437), the Bustamante Code did not create uniform enforcement procedures, relying instead on the local law of the State where the judgment is sought to be enforced (Art. 424). Moreover, while the Bustamante Code purported to establish "international standards" of jurisdiction, it also made the Code's jurisdictional prescriptions subordinate to local law (Art. 314: "the law of each contracting State determines the competence of the court"). Accordingly, to enforce a foreign judgment under the Bustamante Code, the rendering court must not only meet its own standards of judicial competency but must also meet "international standards. see Casad, "Civil Judgment Recognition and the Integration of Multi-State Associations: A Comparative Study," 4 Hastings Int'l. & Comp. L. Rev. 1, 21 (1980).

15. Bustamante Code, Art. 7. See Bustamante, "The American Systems on Conflict of Laws and Their Reconciliation," 5 Tul. L. Rev. 537, 565-569 (1931). Support for application of the national law in questions of personal status and capacity has faded away in Latin America since the adoption of the Bustamante Code. In 1942, for example, Brazil changed from nationality to domicile on the occasion of introducing a significant amendment to the Civil Code. See P.G. Garland, American-Brazilian Private International Law 25 (1959); H. Valladao, Direito Internacional Privado 187 (1968). See also Gallardo, "The Law of Domicile -- A Remarkable Connecting Link in Latin-American Conflict of Laws," 2 Inter-American L. Rev. 64 (1960).

16. Charles Evans Hughes, as the United States representative at the Havana conference and before he became Chief Justice of the United States Supreme Court, felt that choice-of-law issues were of exclusive concern of the states. Thus, the United States refused to sign the Bustamante Code on the ground that it was not within the jurisdiction of the federal government to enter into agreements on matters of private international law, such matters being within the exclusive jurisdiction of the states. See Nadelmann, The Need for Revision, infra n. 18, at 787-88; Rogers, "Private International Law," 23 Int. Law. 207 (1989).

17. Bolivia, Brazil, Chile, Costa Rica, Cuba, Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, Honduras, Nicaragua, Panama, Peru and Venezuela.

18. Bolivia, Brazil, Chile, Costa Rica, Dominican Republic, Ecuador, El Salvador, Haiti, and Venezuela. The reservations are discussed in a document, "Possibility of Revision of the Code of Private International Law (Bustamante Code)," prepared in 1961 by the Department of Legal Affairs of the Pan American Union, referred to by Nadelmann, "The Need for Revision of the Bustamante Code on Private International Law," 65 Am. J. Int'l. L. 782, 783, n. 5 (1971).

19. Bolivia, Costa Rica, Chile, Ecuador, and El Salvador. For an analysis of the general reservation made by Chile, see A. Etcheberry Orthusteguy, American-Chilean Private International Law 12 (1960). The other Latin American nations entered reservations limited to specific issues or institutions affected by the Code. Arguably, the general reservations, providing in substance that the Code rules apply only if not in conflict with domestic law, violates Article 3 of the same Code, which allows only specific reservations ("Each one of the contracting Republics, when ratifying the present convention, may declare that it reserves acceptance of one or more articles of the annexed Code, and the provisions to which the reservation refers shall not be binding upon it."). Many years after the adoption of the Bustamante Code, the Vienna Convention on the Law of Treaties adequately addressed this matter by prohibiting reservations incompatible with the object and purpose of a convention. Vienna Convention on the Law of Treaties, U.N. Doc. A/CON F.39/27 (1969), Art. 19 ("A State may, when signing, ratifying, accepting, approving or acceding to a treaty, formulate a reservation unless: (a) the reservation is prohibited by the treaty; (b) the treaty provides that only specified reservations, which do not include the reservation in question, may be made; or (c) in cases not falling under suparagraphs (a) and (b), the reservation is incompatible with the object and purpose of the treaty.").

20. Article 2 of the Bustamante Code provides that its rules shall apply only in the relations between Contracting States. However, national courts in Code states have resorted to the Bustamante Code for guidance in order to fill gaps. See R.S. Lombard, American-Venezuelan Private International Law 26 (1965); Garland, supra n. 15, at 18.

21. Professor Nadelmann reports that in 1965 the Inter-American Council of Jurists recommended to the Organization of American States that a specialized conference be convened to work on the revision of the Bustamante Code. Resolution II, "Possibility of Revision of the Bustamante Code," in Final Act of the Fifth Meeting of the Inter-American Council of Jurists, San Salvador, El Salvador, (Pan American Union, March 1965, mimeo, CIJ-77). Nadelmann, The Need for Revision, supra n. 16, at 783, n. 9.

22. The draft code was prepared in 1966 by Professor José Joaquin Caicedo Castilla. See Documentos De La Organizacion De Estados Americanos Sobre Derecho Internacional Privado, OEA/Ser. Q/11.9-CIJ-15, Comité jurídico Interamericano, Secretaría General de la Organización de Estados Americanos. See Nadelmann, "Literature in Latin America on the Law of Conflict of Laws in the United States," 4 Inter-American L Rev. 103 (1962); Nadelmann, The Need for Revision, supra n. 16, at 784, n. 14.

23. On May 7, 1969, pursuant to recommendations made by its Committee on Legal and Political Affairs, the Council of the Organization of American States issued a resolution in which it was stated, among other items, that "Governments should be reminded to express their views on the proposed calling of a specialized conference, as proposed by the Inter-American Council of Jurists in 1965" and that "Governments in favor of the conference should be invited to say whether they desired the conference to deal with the subjects recommended by the Council of Jurists in 1965 or whether they preferred that the conference deal through special conventions with aspects of international commercial law which the governments considered urgent." See Nadelmann, The Need for Revision, supra n. 16, at 785-86.

24. The Charter of the Organization of American States, adopted in 1948, provided for the creation of an "Inter-American Council of Jurists" ("Council"), which would have the nine-members Inter-American Committee as its standing committee. The Council ceased to function in 1965. At the Third Inter-American Conference held in Buenos Aires in February, 1967, it was agreed to assign the jurisdiction of the Council to the Inter-American Juridical Committee, the membership of which was raised from nine to eleven. See Robertson, "Revision of the Organization of American States," 17 Int'l. & Comp. L.Q. 346, 359 (1968); "Protocol of Buenos Aires," 27 February 1967, T.I.A.S., No. 6847, 64 Am. J. Int'l. L. 966 (1970). It is fair to acknowledge the significant role played by the Inter-American Bar Association for more than fifty years in its quest for bridging the gap of legal cultures between the Anglo and Latin American communities.

25. OAS General Assembly meeting in Costa Rica, April 1971, Res. AG/RES. 48.

26. The first conference held in Panama in 1975 (CIDIP-I) adopted conventions on the following topics: bills of exchange, promissory notes and invoices; conflict of laws concerning checks; international commercial arbitration; letters rogatory, the taking of evidence abroad, and legal regime of powers of attorney to be used abroad. The text of CIDIP-I are reproduced in English in 14 ILM 325 (1975). See generally G. Parra Aranguren, "La Primera Conferencia Especializada Interamericana Sobre Derecho Internacional Privado (Panama, 1975)" in Libra Homenaje A La Memoria De Joaquin Sanchez Covisa 253 (Facultad de Derecho de la Universidad Central de Venezuela, 1975); Abarca Landero, "Convenciones Interamericana En Materia Procesal, Panamá 1975," in Cooperacion Interamericana En Los Procedimientos Civiles y Mercantiles 682 (UNAM, Mexico, 1982).

CIDIP-II, held at Montevideo in 1979, adopted conventions on domicile of natural persons in private international law; general rules of private international law; proof of and information on foreign law; execution of preventive measures, extraterritorial validity of foreign judgments and arbitral awards; and conflicts rules concerning checks. See 18 ILM 1211 (1979); Samtleben, "Die Interamerikanaischen Specialkonferenz für internationales Privatrecht," 44 Rabels Zeitschrift Für Ausländisches und Internationales Privatrecht 44 (1980) [hereinafter "Rabels Z"]; Siqueiros, "Resumen de los resultados obtenidos en la Conferencia Interamericana de Derecho Internacional Privado (CIDIP-II) celebrada en Montevideo, Uruguay, del 23 de abril al 8 de mayo de 1979," in Cooperacion Interamericana En Los Procedimientos Civiles Y Mercantiles 683 (UNAM, Mexico, 1982).

CIDIP-III, held at La Paz in 1984, adopted conventions on the conflict of laws concerning the adoption of minors, personality and capacity of juridical persons in private international law, and on jurisdiction in the international sphere for the extraterritorial validity of foreign judgments; additional protocol on the taking of evidence abroad. See 24 ILM 459 (1984); Opertti Badan, "La Tercera Conferencia Especializada Interamericana sobre Derecho Internacional Privado" (CIDIP-III), 2 Revista Uruguaya De Derecho Procesal 143 (1984); Parra Aranguren, "Recent Developments of Conflict of Laws Conventions in Latin America," 1979-III Recueil Des Cours 164; id., "Los trabajos preparatorios de la Tercera Conferencia Especializada Interamericana sobre DIP," 32 Revista De La Facultad De Derecho Andreo Bello 32 (1981-1982); Briceño Berrú, "Las convenciones interamericanas sobre derecho internacional privado de 1984," 23 Rivista Di Diritto Internazionale Privato E Processuale 429 (1987); M. Solari Barrandeguy, Pactos Procesales De La Paz (1986); Villela, "L'unification du d.i.p. en Amérique latine," 31 Rev. Crit. D.I.P. 73 (1984).

CIDIP-IV, held in Montevideo in 1989, adopted four conventions on adoption of minors, capacity of juridical persons in private international law; international jurisdiction for the extraterritorial validity of foreign judgments, as well as an additional protocol on the taking of evidence abroad. See 29 ILM 62 (1989); Samtleben, "Neue interamerikanische Konventionen zum Internationalen Privatrecht," 52 Rabels Z 1 (1992); R. Santos Belandro, Convencion Interamericana Sobre Obligacions Alimenarias. Reglas De Confjlicto Materialmente Orientadas Hacia La Proteccion De Las Personas (1991); Tellechea Bergman, "Las Convenciones Interamericanas sobre restitución internacional de menores y obligaciones alimentarias de Montevideo de 1889," 31 Revista De La Facultad De Derecho De Montevideo 107 (1990); Parra Aranguren, "The Fourth Inter-American Specialized Conference on Private International Law," in Mélanges En L'Honneur D'Alfred Von Overbeck 156 (1990) and 36 Netherlands Int'l. L Rev. 267 (1989).

27. For a discussion on the treaty-based Latin American framework on the recognition and enforcement of foreign judgments, see Amado, "Recognition and Enforcement of Foreign Judgments in Latin American Countries: An Overview and Update," 31 Va. J. Int'l. L. 99 (1990).

28. The clearest example is Mexico, which included many provisions of the Inter-American conventions ratified by Mexico into recent amendments introduced to the Code of Civil Procedure for the Federal District and the Federal Code of Civil Procedure. See Gómez Lara, "Medios procesales para resolver controversias con elementos internacionales," in UN 'Codice Tipo' Di Procedura Civile Per L'America Latina 369 (Schipiani & Vaccarella ed., Padova, 1990).

29. For a discussion on the relationship between the Inter-American conventions and previous multilateral treaties among Latin American countries, see Santos Belandro, "Vigencia de loa Tratados de Montevido 1889 y 1940 a la luz de las CIDIP I, II y III," 4 Revista Juridica Estudiantil 67 (1989). A few Latin American countries have entered into bilateral agreements on judicial cooperation with other countries of Western Europe. See, e.g., Convention Between Argentina and Italy for the Reciprocal Enforcement of Judgments, etc., signed at Buenos Aires, August 1, 1887, reprinted in Parry's T.S. 423; Agreement Between Colombia and Spain for the Enforcement of Judgments, signed at Madrid, May 30, 1908, reprinted in 208 Parry's T.S. 71. For more recent bilateral agreements on judicial cooperation, see Brazilian-French Treaty on Judicial Cooperation on Civil, Commercial, Labor and Administrative Matters of April 29, 1985, reprinted in, see also "Convencíon de asistencia judicial y de reconocimiento y ejecución de sentencias en materia civil con Italia," vol. 112 Journal du droit International 735 (1985), Law No. 23720, 6 October 1989, Legislacion Argentina, Noviembre 1989, p. 16.

30. The Hague Conference on Private International Law was established at the Hague in 1893 and as an inter-governmental organization in 1955. Statute of the Hague Conference on Private International Law, October 9-31, 1951, 15 U.S.T. 2492, T.I.A.S. 5743. The Hague Conference has prepared conventions: on choice-of-law rules, enforcement of judgment and judicial cooperation. According to its Statute, the Hague Conference is called upon to work for the progressive unification of the rules of private international law. Pursuant to this goal, the program the Conference has adopted as a working method is the adoption of international conventions containing conflicts rules for limited. See Droz & Adair Dyer, "The Hague Conference on Private International Law for the Eighties," 3 Northwestern J. Int'l. L. & Bus. 155 (1981); Pfund, "International Unification of Private Law: A Report on the United States Participation, 1985-86," 20 Int'l. Law. 623 (1986).

31. See, e.g., Service Abroad of Judicial and Extrajudicial Documents, November 15, 1965, 20 U.S.T. 361; T.I.A.S. No. 6638; 658 U.N.T.S. 163; Taking of Evidence Abroad, March 18, 1970, 23 U.S.T. 2555, T.I.A.S. No. 7444, 847 U.N.T.S. 231; Convention Abolishing the Requirement of Legalization for Documents Used Abroad, T.I.A.S. No. 10072, 20 ILM 1405 (1981).

32. 22 U.S.C. 269(g). See generally Pfund, "United States Participation in International Unification of Private Law," 19 Int'l. Law. 505 (1985); Pfund, "International Unification of Private Law: A Report on U.S. Participation -- 1987-88," 22 Int'l. Law. 1157 (1988).

33. Ambassador Kearny pointed out that the Inter-American Convention on Service Abroad "in conjunction with the Protocol is much like the [1965] Hague Service Convention [on Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters]," whereas the Inter-American Taking of Evidence Convention "was to a certain extent patterned on the [1970] Hague Convention on Taking of Evidence Abroad [in Civil and Commercial Matters]." Kearney, "Developments in Private International Law," 81 Am. J. Int'l. L. 724, 737 (1987). See also Pfund, "International Unification of Private International Law: A Report on U.S. Participation 1987-88," 22 Int'l. law 1157, 1162 (1988).

34. Inter-American Convention on Letters Rogatory and the 1979 Additional Protocol Thereto Relating to the Service of Process and Documents Abroad, reprinted in 14 ILM 339 (1975) (1975 Convention) and 18 ILM 1238 (1979) (1979 Additional Protocol).

35. For the Hague Conference counterpart on service of judicial and extrajudicial documents, see supra n. 31.

36. Recognition and Enforcement of Foreign Arbitral Awards, June 10, 1958, 21 U.S.T. 2517; T.I.A.S. No. 6997, 330 U.N.T.S. 3 See Pfund, "International Unification of Private Law: A Report on United States Participation, 1985-86," 20 Int'l. Law. 623, 629 (1986).

37. The Hague Conference was initially a European institution, but it has succeeded in widening, step by step, its geographical scope so as to comprise many non-European states, including four from Latin America (Argentina, Chile, Mexico, and Venezuela). See "Information Concerning the Hague Conventions on Private International Law. Situation as of 1 August 1991," 38 Netherlands In'tl. L. Rev. 215 (1991). Argentina has acceded the Hague conventions on Civil Procedure (entered into force on July 9, 1988); Abolishing the Requirement of Legalisation for Foreign Public Documents (entered into force on February 18, 1988); Taking of Evidence Abroad in Civil or Commercial Matters (entered into force on July 7, 1987); and Civil Aspects of International Child Abduction (entered into force on June 1, 1991).

38. See Ristau, "Overview of International Judicial Assistance," 18 Int. Law. 525, 529 (1984) ("[T]here appears to be considerable reluctance on the part of [Latin American nations] to join any treaty regime developed in Europe, or developed between the United States and any other non-Latin American states.").

39. Convention on the Civil Aspects of International Child Abduction, 25 October 1980; Convention on Maintenance Obligations, 2 October 1973.

40. Reunión de Expertos sobre Secuestro y Restitución de Menores y Obligaciones de Alimentos. Informe Final, 22-26 de mayo 1989, San José, Costa Rica, pp. 13-14. See Parra Aranguren, "The Fourth Inter-American Specialized Conference on Private International Law," in Mélanges en L'Honneur D'Alfred Von Overbeck 155, 159 (1990).

41. The final provisions to the Inter-American Convention on International Repatriation of Children (Art. 33) and the Inter-American Convention on Maintenance Obligations (Art. 29) provide that States that are also parties to the Hague conventions are bound to apply the Inter-American Conventions, unless the States bilaterally agree to give priority to the Hague conventions. Professor Parra Aranguren, characterizing this provision as "a clear expression of chauvinistic tendencies," noted that some delegates strongly opposed the inclusion of this provision. He also observed that States parties to the Inter-American Conventions may enter an express reservation to this provision at the time of ratifying or acceding to the conventions. It is also noteworthy that conferring priority to the Inter-American Conventions over the Hague convention may be in conflict with another final provision generally included in the conventions and which favors the applicability of more favorable provisions under other treaties ("This Convention shall limit neither the provisions of existing or future bilateral or multilateral conventions on this subject entered into by the States Parties, nor the more favorable practices that those States may observe in this respect." Parra Aranguren, supra n. 40, at 169.

42. For a discussion of the close similarity and main differences between the Hague and Inter-American conventions on the same subject, see Parra Aranguren, supra n. 40, at 160 et seq. (conventions on international repatriation of children and maintenance obligations;

43. One of the studies commissioned by the General Secretariat of the OAS was prepared by a specialist at the request of the General Secretariat. See A. Boggiano, Contratos Internacionales. Esudío Requerido Al Autor Por La Organizacion De Estados Americanos 1-6 (1990). A second document pertains to "Choice of Law and Jurisdiction in International Contracts" and was drafted by the Secretariat. The three remaining documents provide background information on international conventions related to the area of international contractual arrangements. The studies are identified as the following OAS documents: OEA/Ser.K/XX.4, CIDIP-IV/doc. 6/88; OEA/Ser.K/XXI.4, CIDIP-IV/doc.8/88; OEA/Ser.K/XXI.4, CIDIP-IV/doc.9/88; OEA/Ser.K/XXI.4, CIDIP-IV/doc.14/89; and OEA/Ser.K/XXI.4, CIDIP-IV/doc.15/89. See generally "Comments of the General Secretariat on the Topic of International Contractual Arrangements (Document prepared by the General Secretariat), OEA/SEA.G, CP/CAPJ-812/91, 21 February 1991, at 2-3, n.3 (hereafter cited as "Comments of the General Secretariat"); "Report on Convening a Meeting of Experts on International Contractual Arrangements (Document prepared by the General Secretariat), OEA/Ser.G, CP/CRO-330/91, 25 October 1991, p. 3, n.1 [hereafter cited as "Report on Convening a Meeting of Experts"].

44. See document prepared by the OAS General Secretariat for the OAS Permanent Council entitled "Preparatory Work for the Fourth Inter-American Specialized Conference on Private International Law (CIDIP-IV)," OAS Doc. OEA/Ser.G CP/doc.1887/88 add. 1 (June 15, 1988). At its nineteenth regular session held in November 1989, the General Assembly of the OAS decided to convene a meeting of experts for the purpose of preparing a preliminary draft convention on "the law applicable to international contractual arrangements." OAS, AG/RES. 1024 (XIX-0/89), "Recommendations of the Fourth Inter-American Specialized Conference on Private International Law (CIDIP-IV) to the General Assembly." See "Report on the Draft Agenda of the Fifth Specialized Inter-American Conference on Private International Law (CIDIP-V) (Document prepared by the General Secretariat)," OEA/Ser.G, CP/CAJP-836/91, 23 October 1991 [hereafter cited as "General Secretariat Report"].

45. Final Act of the Fourth Inter-American Specialized Conference on Private International Law (CIDIP-IV), OEA/Ser.C/VI.21.4, 1990, p. 52. See Boggiano, supra n. 43, at 169. See also Parra Areguren, supra n. 40, at 172-173; Boggiano, supra n. 43, at 169. The "bases" are set forth in Comments of the General Secretariat, p.4, n.5:

"Basic Principles Adopted by the Conference for the Future Study of the Topic on Law Applicable to International Contracts.
1. The parties to the contract may freely decide on the law applicable to all or part of a contract the international character of which is evidenced by objective elements located in different States. They may change the chosen law at any time provided that the rights of third parties are not affected.
2. The decision referred to in the preceding paragraph must be explicit or, exceptionally, must derive unequivocally from the overall conduct of the parties and the clauses of the contract.
3. If the parties to the contract have failed to choose the applicable law, or if their choice is invalid the contract shall be governed by the law of the State with which it is most closely linked.
4. The statutory provisions of any State with which the contract has links may be taken into account when, under the law of the State concerned, those provisions are mandatory and should be applied regardless of the law governing the contract shall necessarily be applied.
5. The statutory provisions of any State with which the contract has links may be taken into account when, under the law of the State concerned, those provisions are mandatory and should be applied regardless of the law governing the contract.
6. As for the requirements of form, to be valid it is sufficient that the contract done in conformity with the law governing its execution (lex celebrationis).
7. The law of each State shall govern the publication of notices of the contract.
8. The law governing the contract shall not apply when it is manifestly contrary to public policy (ordre public)."

46. CIDIP-V/Res. 8(89); Comments of the General Secretariat, supra n. 43, at 5.

47. At its regular meeting of December 14, 1989, the Permanent Council of the OAS instructed the Committee on Juridical and Political Affairs to prepare the agenda for CIDIP-V. See "Report of the Committee on Juridical and Political Affairs Concerning the Questionnaire on International Contractual Arrangements," OAS Doc., OEA/Ser.G. CP/doc.2139/91 corr. 1, 27 February 1991 [hereafter cited as "Report of the Committee on Juridical and Political Affairs"].

48. This draft convention was considered by the Inter-American Juridical Committee at its regular session of July-August 1991, together with a statement of reasons and report submitted by the rapporteur, Professor José Luis Siqueiros. See "Proyecto de Convención Interamericana sobre Ley Aplicable en Materia de Contratación Internacional," OEA/Ser.Q, CJI/RES.II-6/91, July 31, 1991. See also General Secretariat Report, supra n. 44 at 6-7.

49. The Juridical and Political Affairs Committee asked that the comments be submitted before April 30, 1990, but the deadline was subsequently extended to November 30, 1990. See General Secretariat Report, supra n. 44 at 2.

50. The members of the working group were Argentina, Bolivia, Brazil, Colombia, Costa Rica, El Salvador, Guatemala, Mexico, Panama, Peru, Trinidad and Tobago, United States, Uruguay, and Venezuela. See General Secretariat Report, supra note 44 at 3; Report of the Committee on Juridical and Political Affairs, supra n. 47 at 2.

51. The Juridical and Political Affairs Committee asked that the comments be submitted before April 30, 1990, but the deadline was subsequently extended to November 30, 1990. See General Secretariat Report, supra n. 44 at 2.

52. See General Secretariat Report, supra n. 44 at 3, 6, which identified the governments' responses in the following OAS documents: Colombia (CP/doc.2107/90), Mexico (CP/CAJP-796/90 and CP/CAJP-796-90-a), Venezuela (CP/CAJP-796/90, add. 1), Argentina (CP/CAJP-796/90 add. 2), Brazil (CP/CAJP-796/90 add. 3). and Uruguay (CP//CAJP-796/90 add. 4). The report identified five topics which received varying degrees of support: International contractual arrangements (Colombia, Mexico, Venezuela, Argentina, Brazil, Uruguay); civil aspects of traffic in minors (Colombia, Mexico, Venezuela, Brazil, Uruguay); international commercial law, with special reference to international legal business transactions (Venezuela); legal aspects of the transfer of technology under private international law (Colombia, Mexico, Brazil, Uruguay); and international judicial cooperation (Uruguay). Id. at 6.

53. At its meeting of January 24, 1991, the Committee on Juridical and Political Affairs agreed to include in its working agenda an item entitled "Preparation of the agenda of the meeting of experts on international contractual arrangements." See "Texto de las propuestas presentadas por la Misión Permanente del Uruguay en la sesión celebrada por la Comisión de Asuntos Jurídicos y Politicos el 24 de enero de 1991," CP/CAJP-803/91, February 1, 1991. On February 7, 1991, the Committee acknowledged the questionnaire submitted by the delegation of Uruguay and brought it to the attention of the Permanent Council on February 21st. See "Comentarios del Embajadaor, Representante Permanente del Uruguay acerca de los temas relativos a la contratación internacional y remoción de los obstáculos jurídicos a la integración, formulados en la sesión de la Comisión del 7 de febrero de 1991," CP/CAJP-807, 8 de febrero de 1991. The Permanent Council of the OAS considered and endorsed the questionnaire at its meeting of February 28th, 1991, and forwarded the questionnaire to the governments of the member states with a request for their response and comments. See Report on Convening a Meeting of Experts on International Contractual Arrangements (Document prepared by the General Secretariat), OEA/Ser.G, CP/CRO-330/91, 25 October 1991, pp. 1-2.

54. The questionnaire on international contractual arrangements forwarded to the member states is restated in a background document prepared by the General Secretariat for Legal Affairs, "Documentos de antecedentes sobre el tema 'Proyecto de Temario de la Reunión de Expertos en Materia de Contratación Internacional' " (Documento preparado por la Secretaría General), OEA/Ser.G, CP/CAJP-839/91, 29 Octubre 1991 [hereafter cited as "Documento de Antecedentes"]. An English translation of the questionnaire is found in "Responses of the Governments of the Member States to the Questionnaire on International Contractual Arrangements. Canada" OEA/Ser.G, CP/CAJP-822/91 add. 4 rev. 1, 31 October 1991) [hereafter "Response from Canada"].

55. See Comments of the General Secretariat, supra n. 43 at 8. The General Secretariat has indicated that the preparation of drafts to be submitted to the member countries may take different formats ("These could take the form of uniform model legislation; or unified rules of private international law that would be recommended for internal adoption by the states; or a convention to be considered by the Inter-American Specialized Conference on Private International Law (CIDIP), through which the ratifying states would be committed to adopting such rules, with multilateral effects among the ratifying states."). Id.

56. See questions 1-5 Response from Canada, supra n. 54, at 1-3:

"1. Does your government have internally generated laws for the regulation of international commercial and financial contracts, particularly on the requirements that must be met in order to enter into international contracts?

2. Under the laws of your country, can the parties to an international contract choose which country's laws shall apply to that contract?

3. If yes, do these laws cover all contracts in general or some in particular and, if the latter, which?

4. What legal, predominant doctrinal, and jurisprudential criteria are observed in connection with the laws applicable to an international contract? ... in connection with jurisdictional competence and with the recognition and enforcement of foreign arbitral findings and awards?

5. Does your legislation include legal and administrative provisions that apply particularly to international contracts, taking into account whether the parties thereto are private or public (the state and other public entities)?".

57. See Response from Canada supra n. 54 at 3:

"6. What conventions or other installments of bilateral, regional, or international nature, dealing broadly with international contractual arrangements, does your country adhere to for:
(a) commercial contracts (i.e., international sales, insurance, leasing, technology transfer, investment, joint ventures, etc.);
(b) financial contracts, when the financing comes from international lending institutions (regional, such as the IDB, or subregional, such as the Andean Development Corporation, FONPLATA, etc., or worldwide, such as the World Bank, the International Monetary Fund, and EXIMBANK), or from private financial institutions and banks;
(c) commercial and financial contracts among private parties and between them and the state;
(d) so-called economic development contracts?

7. Does your government consider that the solutions provided in the United Nations Convention of 1980 (referred to as the "Vienna Sales Convention") would be appropriate to regulate contracts for international sales of merchandise in the Inter-American region?"

58. See Response from Canada, supra n. 54 at 4-5:

8. Does your government regard the present arrangements as adequate or is it of the view that the new international agreements of Inter-American or subregional scope should be concluded for the governance of international contracts?

9. In light of the current developments in regional and subregional integration to which your country is a party, and in the opinion of your officials, what role do you think the OAS would be able to play, on the basis of its experience, in the drafting of conventions and uniform laws on such subjects as, for example, binational, multinational, and joint enterprises, foreign investment contracts, technology transfer, financing, the settlement of contractual disputes, etc.?

10. If you think new rules are needed, which of the following courses would you prefer:
a) A general-purpose convention such as the EEC Convention on the Law Applicable to Contractual Obligations (Rome, 1980).
b) A convention of uniform law on specific types of contract such as the Vienna Uniform Law of 1980 on International Sales.
c) A convention laying down certain principles of international commercial contracts such as the one drafted by UNIDROIT (document UNIDROIT 1990, Study L-Doc. 40 Rev. 5), containing rules on the international character and formation of a contract, its validity, interpretation, fulfillment and nonfulfillment, and including provisions on mandatory rules of domestic law, party autonomy, judicial and arbitral jurisdiction, and the possibility of providing a national or international legal 5ystem of reference in which problems such as those of interpretation and validity, for example, can be resolved.
d) A convention confined to settling the issue of the law applicable to international contracts along the lines of the current arrangement under the Bustamante Code (1928) and the Montevideo treaties (1889 and 1939-40), and under some CIDIP conventions (e.g.. the one on Commercial Companies of 1979) along the same lines as the bases proposed by CIDIP-1V (see Final Act, p. 27).
e) That your Government confine itself to participation in and/ or acceptance of the results of the 36-member United National Commission on International Trade Law (UNCITRAL), whose agenda includes, among others, the topics of International Contractual Practices and Responsibility of Operators of transportation Terminals.
f) Any other possible regulatory arrangement that your Government may find appropriate.
g) A harmonious combination of several of the above."

59. See Response from Canada, supra n. 53, at. 6:

"11. To which judicial or arbitral jurisdiction are disputes submitted which arise out of international contracts in general and some of them in particular?

12. What legal effect does international arbitration have in your country, what international conventions on this matter are applied by your authorities, and what difficulties arise in their application?

13. What legal effect is assigned in your country to the prorogation of international jurisdiction?

14. With regard to international arbitration:
1. Does your Government consider that new regional rules are needed for matters of international arbitration, or that the existing rules should be improved to remove possible inadequacies?
2. If the latter, does your Government consider that the OAS could do this work and coordinate with the IDB for the purpose under the Agreement for Cooperation and Coordination of Activities signed between the two institutions in Washington D,C., on October 4.1989?"

60. As of January 1992, the following governments submitted comments and observations: Colombia, Honduras, Brazil, Argentina, Canada, Costa Rica, and, Mexico. CP/CAJP-822/91, add. 1, 2, 3 and 3 errata, 4, 5, 6, respectively. See Report on Convening a Meeting of Experts, supra n. 43, at 7.

61. As to the responses of Argentina, see Documento de Antecedentes, supra n. 54. at 21. As to Canada, see Response from Canada, supra n. 53, at 4, 5 (Answer to question 8: "We are of the view that in the interest of the international harmonization of trade law, consideration ought to be given to first becoming a party to the various international conventions and adopting model laws adopted by the UN, UNCITRAL, the Hague Conference on Private International Law and UNIDROIT before attention is given to purely regional arrangements"), (Answer to question 9: "We are of the view that apart from regional arrangements such as free trade areas, such work should be undertaken at the broadest international level. The OAS could participate in such work, as does the EEC and other regional groupings"), (Answer to question 10: "We think that any new rules should, as far as practicable, be prepared under the aegis of broadly constituted international organizations such as the UN, UNCITRAL, the Hague Conference on Private International Law, and UNIDROIT").

62. See "Colombian Response," OEA/Ser. G/CP/CAJP-822/91, 5 April 1991 pp. 6-7, answer to question 8 ("Since the OAS member states have different legislations on this matter and different practices and customs, it would be useful and necessary to draw up an Inter-American Convention on International Contractual Arrangements"), answer to question 10 ("The Government of Colombia considers it indispensable that there be an Inter-American Convention on International Contracting"); "Costa Rican Response" OEA/Ser. G/CP/CAJP-822/91 add. 5, 5 Nov. 1991 at 10, answer to question 8 ("We find there is a need for an Inter-American convention in international contractual arrangements ..."); "Honduran Response," OEA/Ser. G/CP/CAJP-822/91 add. 1, 13 May 1991 p. 4, answer to question 8 ("We feel that international contractual arrangements should be addressed by an international agreement of Inter-American scope"); "Mexican Response," OEA/Ser. G/CP/CAJP-822/91 add. 6, 10 Jan. 1991 pp. 2-3, answer to question 8 ("It would be advisable to negotiate and conclude an inter-American convention on international contractual arrangements ...").

63. See "Mexican Response," supra n. 62, p. 3, answer to question 10 ("In connection with the law applicable to international contracts, the best solutions would be those proposed in the EEC Convention, signed at Rome in 1980, and those of the 1986 Hague Convention on Law Applicable to Contracts for the International Sale of Goods. Such solutions are reflected in the guidelines proposed in the resolution adopted in 1989 by CIDIP-IV.").

64. "Proyecto de Convención Inter-Americana sobre Ley Aplicable," supra n. 48.

65. See generally J. Ots Capdequi, Manual De Historia Del Derecho Espanol En Las Indias (1945); Barrera Graf, El Derecho Mercantil En La America Latina 19 (1963); Guzmán Brito, "La penetración del derecho romano en América," 18 Revista Chilena De Derecho 203, 211 (1991).

66. See G. Margadant, An Introduction to the History of Mexican Law 85 et seq. (1983). See also Clark, "Judicial Protection of the Constitution in Latin America," 2 Hast. Const. L.Q. 405, 406-13 (1975).

67. The preamble to the Argentine decree setting up a commission to draft new codes of law noted that the legislation presently in force "contains laws passed during a period of time extending over many centuries unknown to people on whom they are binding, stored away in court archives or in private libraries of a few individuals fortunate enough to possess them as priceless curiosities; society at large, and very often jurisconsults and the judges themselves, are ignorant of their very existence. ..." Quoted in EDER, "Introduction" to the Argentine Civil Code xxii (Joannini trans. 1917).

68. Barrera Graf, supra n. 65, at 43-44; Piaggi, Segal & Winizki, "Influencia del Código Italiano de 1882 sobre la doctrina y legislación comercial de la República Argentina," in Cento Anni Dal Codice Di Commercio, Atti del Convegno Internazionale di Studi, Taormina, 4-6 novembre 1982, pp. 201-210 (Roma, Giuffré Editore, 1984).

69. See generally J. Castan Tobeñas, Los Sistemas juridicos Contemporaneos Del Mundo Occidental 43 et seq. (2d ed., Reus, Madrid, 1957); Castan Tobeñas, "Contemporary Legal Systems of the Western World," 1 Comparative Juridical Review 117-27 (1964); id., "El sistema jurídico iberoamericano," Revista de Estudios Politicos 209 (Madrid, 1968); Segal, Pinto & Colautti, "Aperçu sur les systèmes juridiques de l'Amérique du Sud," 65 Rev. Intern. Droit Compare 105, 108-115 (1988); De los Mozos, "Perspectivas y Método para la comparación jurídica en relación con el Derecho Privado iberoamericano," 60 Rev. Derecho Privado 777 (1976); Catalano, "Sistema jurídico Latinoamericano y Derecho Romano," 85 Revista General De Legislacion Y Jurisprudencia 85 (Madrid, 1982).

70. Léger, "De l'influence du Code Napoléon à Haiti et des différences de législation civile entre France et Haiti," in Le Droit Civil Francais. Livre Souvenir Des Journée Du Droit Civil Français 755 (1936).

71. Codigo Civil, de 11 de mayo de 1888, hecho extensivo a Cuba por Real Decreto de 31 de julio de 1889 y vigente desde el dia 5 de noviembre del mismo año. Concordado y anotado hasta el 8 de marzo de 1975. Publicacion Oficial del Ministerio de Justicia (1975). See generally Azicri, "Change and Institutionalization in the Revolutionary Process: The Cuban Legal System in the 1970's," 6 Review of Socialist Law 164 (1980).

72. See Alvarez González, "La reforma del Código Civil de Puerto Rico y los imperativos constitucionales: un comentario," 52 Revista Del Colegio De Abogados De Puerto Rico 223 (1991); Rodríguez Ramos, "Interaction of Civil Law and Anglo-American Law in the Legal Method of Puerto Rico," 23 Tul. L. Rev. 1 (1948); Trías Mange, "Consideraciones sobre la reforma del Código Civil de Puerto Rico," 52 Revista Juridica De Puerto Rico 143 (1983).

73. Matus Valencia, "The Centenary of the Chilean Civil Code," 7 Am. J. Camp. L. 71 (1958); A. Guzman V. & Andres Bello Codificador, Historia De La Fijacion y Codificacion Del Derecho Civil En Chile 158 (1982); Guzmán B., "El pensamiento codificador de Bello entre las polémicas chilenas en torno a la fijación del Derecho Civil," in Diritto Romano Codificazioni E Unita Del Sistema Juridical Latinoamericano 5 (8. Schipani, ed. 1981).

74. See Castro Borges, "Na formaco do Direito sulamericano: Teixeira de Freitas e Vélez Sársfield," 34 Scientia Juridica 216 (1985); S. Meira A., Teixiro De Freitas, O Jurisconsulto Do Imperio. Vida Obra (2d ed., Brasilia, 1983).

75. See Schipani, "El Código Civil peruano de 1984 y el sistema jurídico latinoamericano," 40 Revista Judicial 144 (Costa Rica, 1987).

76. Draft Unified Civil and Commercial Code, Arts. 1144-1154. See Alterini & Martinez Ruiz, "Los contratos en general," 48 Revista Del Colegio De Abogados De Buenos Aires 27 (1988).

77. See, e.g., Draft Unified Civil and Commercial Code, Arts. 1928-1936, 1937-1948, 2013-2021, 2182-2215.

78. See, e.g., Draft Unified Civil and Commercial Code, Arts. 1889-1919, 1986-2012, 2216-2243.

79. Proyecto De Código Civil. Nueva Edicion. Segun Texto Aprobado Par La Honomble Camam De Diputados De La Nacion. Aprobado por Orden del Día No. 1064, July 15, 1987 (1987).

80. Codigo Civil De La Republica Del Paraguay. Sancionado por el Honorable Congreso Nacional como Ley No. 1183 el 18 de diciembre de 1985 y promulgada por el Poder Ejecutivo el 23 de Diciembre de 1985. Edicion de la Corte Suprema de Justicia (1986).

81. Decree-Law No. 200, July 2, 1985. Id., Exposición de Motivos, p. 1.

82. Id., Fundamentación en el Senado del proyecto de Código Civil. Exposición del Senador Raul Sapena Pastor, Sesión del 22 de agosto de 1985, pp. 65-68.

83. Moisset de Espanés, "El nuevo Código Civil paraguayo," 94 Revista De Legislacion y Jurisprudencia 475, 477 (1989).

84. Paraguayan Civil Code, Art. 671. See Sobre el Articulo 671 del Proyecto de Código Civil sobre la "lesión enorme", Exposición del Senador Raül Sapena Pastor. Sesión dl 29 de agosto de 1985, in Codigo Civil, supra n. 82, at 85.

85. Paraguayan Civil Code, Art. 672. See, "La Teoría de la imprevisión 'o la 'Excesiva Onerosidad,' Exposición del Senador Raül Sapena Pastor," in Cógido Civil, supra n. 82, at 93.

86. Paraguayan Civil Code. Art. 372.

87. See Argentine Civil Code, Arts. 954, 1071, and 1198, as amended by Law No. 17711 of 1968.

88. International Institute for the Unification of Private Law, Working Group for the preparation of Principles for International Commercial Contacts. Principles for International Commercial Contracts, Unidroit 1991, Study L -- Doc. 40. Rev. 10, Rome, July 1992 [hereafter cited as "Unidroit Principles"].

89. Unidroit Principles, Art. 1.3 ("The parties are free to enter into a contract and to determine its content"). Cf. Argen. C.C., Art. 1168; Mex. C.C., Art. 1839; Parag. C.C., Art. 669.

90. Unidroit Principles. Art. 1.4 ("A contract validly entered into is binding upon the parties. It can only be modified or terminated in accordance with its terms or by agreement or as otherwise provided under these Principles."). Cf. Argen. C.C., Art. 1197; Mex. C.C., Art. 1796; Parag. C.C., Art. 715.

91. Unidroit Principles, Art. 1.5 ("Nothing in these Principles shall restrict the application of mandatory rules, whether of national, international or supranational origin, which are applicable in accordance with the relevant rules of private international law."). Cf. Argen. C.C., Art. 21; Mex. C.C., Art. 6; Parag. C.C., Art. 669.

92. Unidroit Principles, Art. 1.9 ("(1) The parties are bound by any usage to which they have agreed and by any practices which they have established between themselves. (2) The parties are bound by a usage that is widely known to and regularly observed in international trade by parties in the particular trade concerned except where the application of such a usage would be unreasonable.").

93. Cf. Argen. Draft Unified Civil and Commercial Code, Art. 1197(f); Braz. Com. C., Art. 131(4).

94. Unidroit Principles, Art. 1.8 ("(1) Each party much act in accordance with good faith and fair dealing in international trade. (2) The parties may not exclude or limit this duty.")

95. See generally Commentary on the International Sales Law 84 (C.M. Bianca & M.J. Bonell ed., 1987).

96. See Arg: Unified Draft, Arts. 1158-1159. See also Parag. Civ. C., Arts. 689- 690.

97. See Bonell, "International Uniform Law in Practice -- Or Where the Real Trouble Begins," 38 Am. J. Comp. L. 865, 878 (1990) (noting that "[a]t least until recently, there has been an entirely inadequate participation on the part of the countries of these regions [Africa and Latin America] in the preparation of international instruments of uniform law.")

98. See Bonell, supra n. 97, at 870.

99. See Bonell, supra n. 97, at 870.

100. See comments of Eric E. Bergsten, in Unidroit 3rd Congress on Private Law, supra n. 2, at 535-536.

101. See generally Farnsworth, "Uniform Law and Its Impact on Business Circles," in Unidroit 3rd Congress on Private Law, supra n. 2, at 547.

Pace Law School Institute of International Commercial Law - Last updated May 18, 2006
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