Venezuelan Private International Law: A Comprehensive Analysis
Item 5. Venezuelan System of Private International Law
1. General
From the origins of Venezuelan legislation, high standards shaping the private international law (PIL) system are enshrined in the Civil Code. Dr. Julián Viso’s 1862 proposal established statutory principles that continue to support the Venezuelan system.
2. Legal System
The Venezuelan PIL system follows the Netherlands school, exhibiting a territorialist tendency. Venezuelan law applies unless a specific provision mandates the application of foreign law. The Law on Private International Law (August 6, 1998) repealed conflicting regulations in the Civil Code (Sections 8, 9, 10, 11, 26, etc.) and Article 8 of the Code of Civil Procedure.
3. Venezuelan Doctrine
3.1. Territorial Position
Aníbal Dominici, a proponent of strict territorialism, cites Article 6 of the 1896 Civil Code (equivalent to Article 8 of the current Code): “The authority of the Act extends to all persons or foreign nationals who are in the Republic.” He argues this leaves no room for foreign law application. While acknowledging that applying foreign law might be a courtesy, he insists it requires explicit legislative consent and cannot contradict Venezuelan law or public policy.
Ramón Feo, analyzing Article 11 of the 1904 Civil Code (similar to the current Article 8), supports Dominici’s doctrine.
Orangel Rodríguez highlights state sovereignty and territorial jurisdiction. He acknowledges the law’s tendency to extend beyond its territory but emphasizes the limits imposed by state sovereignty, creating a hybrid, antagonistic system.
3.2. Scientific Position
Luis Sanoja, applying the 1873 Civil Code, used a territorial basis but also considered the Dutch school’s concepts of real, personal, and mixed statuses. He advocated for applying foreign law to matters of status and capacity based on reciprocity.
He proposed using lex rei sitae for real and personal property (lacking specific legal regulation at the time), locus regit actum for the form of acts, and the principle of autonomy for contracts (unless other rules applied).
Francisco Gerardo Yánez believed that Venezuela’s absolute territoriality was softened by the Netherlands school’s comity until 1881, when national law began regulating the status of foreign nationals. His analysis focused on Article 17 of the 1904 Civil Code (equivalent to Article 26 of the current Code), which grants foreign nationals the same civil rights as Venezuelans, except where specified. This doesn’t preclude applying foreign law to status and capacity as permitted by PIL.
Lorenzo Herrera Mendoza argues that the Venezuelan system has statutory bases associated with nationality. He notes the legislature didn’t distinguish between statutory groups, leaving the choice between personal and real status to judicial discretion. He believes allowing foreign nationals to be governed by their personal law implies accepting foreign law application.
4. Present Position of Venezuela
Several scholars offer perspectives:
Juan María Rouvier sees the Venezuelan system as leaning toward territorialism with statutory classifications (real, personal, and mixed) similar to the Dutch system.
Tatiana Maekelt considers the Venezuelan system incomplete, requiring reliance on case law and comparative law for conflict resolution.
Daniel Iniguez Guerra offers an eclectic view, not seeing the system as predominantly territorial or national. He emphasizes the statutory nature of Venezuelan PIL, where nationality governs status and capacity, domicile governs succession, location governs property, and locus regit actum governs forms.
José Luis Bonnemaison rejects the territorial nature of the Venezuelan system, recognizing its statutory basis. He argues that gaps are filled by the application order of rules for each conflict type, primarily under Article 8 of the Code of Civil Procedure and Article 1 of the Private International Law.