Private International Law: Principles and Scope in Latin America

Posted on Dec 8, 2024 in Law & Jurisprudence

Chapter 1: Concept of Private International Law (PIL)

1. Raison d’être of Private International Law

  • Double reason for being:
    • Existence of multiple jurisdictions.
    • Legal relationships do not stop at borders.

2. International Character of Private International Law

  • PIL is an international-type law.
  • Sources:
    • The most important is the law.
    • International conventions.
    • Customary international law (commercial law).
    • Increased government activity.
  • PIL is said to be a law in tension between national and international trends.

3. Private Character of Private International Law

  • PIL was limited to problems of a private nature, but this has been lost in recent years:
    • The distinction between public law and private law has attenuated. For example, labor law.
    • Historically, specialists in private law were the first to address the problems of PIL (Andres Bello).
    • PIL has incorporated various criteria of public law and vice versa – this is good for people as they deal with more international standards.
    • The principle of territoriality governing public law does not apply in private law.
    • If a court applies foreign law, this is a question of the essence of PIL.
    • However, rules of foreign public law are welcomed. For example:
      1. The application of foreign law to a private location, in some cases, public law rules are applied.
      2. Extradition requires the requested state to review the law of the requesting state if the act or omission constitutes an offense.
      3. The receipt of the legality principle accepts the application of foreign criminal law.
  • What actually makes PIL private, rather than the origin of its rules, are its recipients.
  • PIL regulates the international life of people, which is affected by private and public standards.

4. Scope of PIL: Doctrines

a) Limits PIL only to conflicts of laws

  • The conflict of laws rests on few and complies with such a jurisprudential contribution.
  • Conflict rules are limited to determining the applicable law without settling the merits of the case.
  • The theory is to develop categories of skills and include connection status on the basis of domestic law.
  • In the general theory of conflicts of law, a distinction is made between the creation of rights and the international effect of acquired rights.
  • PIL competition will determine which is the law to be applied by the court to a legal situation with relevant international elements.

b) Includes jurisdiction conflict

  • A conflict of jurisdiction exists whenever a dispute has a foreign element so that the courts deciding the issue must decide whether or not to include relevant conflicts of jurisdiction in PIL.
  • There are analogies that can be built between conflicts of jurisdiction and conflicts of law.
  • Interdependence between the two materials.
  • Structural analogies exist, for jurisdiction distinguishes between the powers of the judge to hear a case and the international effectiveness of its ruling.
  • To determine the applicable law may vary depending on the judge hearing the case.
  • The subject of this discipline is to determine whether a state court has jurisdiction to hear a case with international elements, and if possible, whether or not the penalty imposed by a foreign court has force in that state.

c) Gives the status of foreigners in PIL

  • This is to determine what prerogatives foreigners shall enjoy in the territory.

d) Includes the study of nationality

  • This is based on the following reasons:
    1. Nationality is a matter regulated in either the constitution or the law.
    2. The rules on nationality are unilateral; the judge will determine if you have the nationality of the forum.
    3. Nationality is a public institution and regulates the relations between the individual and the state.

5. Definition of PIL

PIL is the branch of law that aims to decide on the rules governing the courts that will hear cases with significant international elements, to regulate the effects of foreign judgments, to determine the nationality of natural persons, and the legal status of foreigners.

Chapter 2: External Legal Traffic

1. The Relevant International Element

The foreign element can occur:

  • Personal element: If one party is a national of a foreign state and has its domicile or residence in a foreign state.
  • Real element: Although located abroad.
  • Aspect of the act: If the act or event occurs or takes place or produces its effects abroad.
  • So it is a case of PIL abroad that must be relevant.

2. Universalism and Particularism in PIL

Premise: The fact that legal relations are developed under different jurisdictions.

  • PIL is the realization of the duty to cooperate internationally resulting from the growing interdependence of all countries.
  • Its international character assumes that:
    • Laws should govern relations under principles generally accepted in the world.
    • Accept the existence of multiple legal systems governing the world.
    • Respecting the existence of this diversity.
  • There will be no cosmopolitanism in PIL if there is full legal unification and if there is international cooperation.
  • We must reject two extreme errors:
    1. Universalism: Seeks to establish universal legal principles that attempt to link all systems, but this is contradicted by the fact.
    2. Exaggerated particularism: Does not take into account the peculiarities of external traffic and the requirements of international law.
  • The recognition of international reality explains that the rules for external traffic are sometimes different from those for the national field.

3. Role of State Regulation

The state system cannot claim to have exclusivity to regulate all situations with elements from drawing reasons:

  • There is a need to build a harmonious and predictable system in the world that recognizes that different jurisdictions have to live in the international situation.
  • A common aspiration of all states is to meet the interest of people and not satisfy the interests of other states.
  • There is no legislative exclusivity, that is, each state governs all situations with foreign elements by applying its own rules of reasons:
    • All systems implementing standards haul foreign.
    • Exclusive jurisdiction of the law would imply that there is no solution if there is no court case first and then the law.
    • The exclusive competence of the law involves the risk of those who claim to do so on the forum where your claim is received.
    • The solution would be unstable and fragmentary and would not apply abroad and forums as many solutions as there are known.
    • The decision to refer the matter to a particular court is based on different considerations in the decision to submit to a particular law (law does not depend on the subjective author).

4. International Directives for External Traffic Regulations

  • As there is no international law, the role of local authority and the rules dictate that this must be accepted by any law.
  • Limitations to the national legislature:
    • The state is not free to apply its right to situations that are not connected with them.
    • The link must be intense (real or personal).
    • There is no rule that sets limits on the application of each order, but there are rational limits.
    • A nationalist approach has no impact abroad, but there are certain protocols that facilitate the extraterritorial enforcement of judgments.

Chapter 3: Sources of Private International Law

1. Internal Sources

  • The law in Chile is insufficient, scattered, and old.
    • Poor: Few rules in the Civil Code.
    • Scattered: For example, we find rules for commitment in marriage law, in the Organic Code of Tribunals, in the Code of Criminal Procedure, etc.
    • Old: 1855 Civil Code preliminary title.
  • Custom: It has great relevance in Chile because, under Article 2 of the Civil Code, it is not right.
  • Case law: It is often contradictory and deficient.
  • Doctrine: It is weak and is reduced to half a dozen authors who have differing views.
  • Stocks of domestic sources: The results are the following consequences:
    1. There are different PIL systems throughout the world.
    2. The solutions of the various systems are different.
    3. If there are different solutions, they may even be contradictory. Such diversity can be exploited by the parties, choosing the one that best agrees with their aims, but avoiding the application of mandatory law is guilty of fraud in law.
    4. There is an important comparison of different PIL subjects.

2. International Sources

  • Unwritten rules: These are general principles of law of universal application, for example, locus regit actum.
  • Bilateral international treaties: The problem is whether the legal relationship is regulated by the treaty or not. The advantage is that it is usually easier to conclude and ratify because you do not need the agreement of one state, but rather two groups. They are very useful but difficult to complete and ratify.
  • Jurisprudence: It is low because international courts primarily resolve international public law problems and not those of PIL.
  • Convention: The autonomy of the parties is a very important and comprehensive source.
  • Lex mercatoria: These are rules that merchants have established to facilitate the exchange of goods and services, but today it is a highly contested source.

3. History of the Unification of PIL in Latin America

Unification can be done in two ways:

  1. On the basis of unification of rules of conflict: This means that all states are moving to use the same connecting factor to govern the same situation.
  2. On the basis of unifying the substantive rules: This means that all countries move to adopt the same basic solution for the corresponding case.

a) Attempts to codify the rules of PIL in Latin America

There have been four attempts:

  1. Treaty of Lima 1875: This treaty was the first to regulate board materials, and the basic problem was that it had adopted nationality as a connecting factor for personal status, and this alienated many states. The only country to ratify it was Peru.
  2. Treaty of Montevideo 1888: This was made by Argentina and Uruguay, where several subjects were taken, such as commercial law, civil law, criminal law, property, procedure, etc. It was signed by several countries and has not been reported. The first four standardize the rules of conflict, and the other four standardize the materials rules. Chile has subscribed to several, excluding some, but has not ratified any. This treaty has the merit of being the first in the world to be ratified by most states and therefore entered into force.
  3. Bustamante Code: This was the result of the Pan-American conference in 1928, and this approved PIL code works by Cuban Antonio Sánchez de Bustamante y Sirven. The most serious problem for this code was the reserves, having been approved without them. These are of two types:
    • Indeterminate: That is, they do not refer to specific provisions of the treaty.
    • Certain: They refer to specific provisions of the treaty or constitution.

    Chile raised the reserve; this will save your vote in the materials and items it deems appropriate regarding the national policy and legislation. The national congress approved the comprehensive treaty reservation”with the reservation made by delegates of Chile and also with Chilean law, and the relation to the conflicts that arise with current or future legislation will prevail over the code if there is disagreement between the two”

  4. Treaties of Panama, Montevideo, and Peace: These were agreed upon during the 1st, 2nd, and 3rd Inter-American Conferences on PIL held in the countries already named. They were founded on the following principles:
    1. Large and compact encodings were avoided, that is, it is intended to replace the old word for a more efficient and modern one.
    2. Attempts have been made to avoid general reservations and accept only those that do not conflict with the object or purpose of the treaty.

b) Type of PIL codification in Latin America

Such codification is limited geographically to Latin American countries, excluding the USA. Its main features are:

  1. Globalist
  2. Regionalist or bipolar

c) Resulting from the consolidation in Latin America

  1. Theoretical results: These allowed leaving in effect writing and theoretical principles.
  2. Practical results: These are the results that are applied to product state accession to treaties.

d) Difficulty of coding

  1. The weight of traditions.
  2. Absence of the USA.
  3. Ratifications of the conventions.