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Jurisdiction II: Global Networks/Local Rules

September 11-12, 2000
San Francisco, CA

Jurisdiction - Fundamental Concepts: Focus on Latin America (DRAFT)

Dra. Mariana Silveira

Coordinator of E Commerce Project
National Center for American Free Trade, USA

© National Law Center for Inter-American Free Trade
Two EastCongress Street, Suite 500 -- Tucson, AZ 85701
(520)622-1200 -- fax: (520)622-0958
http://www.natlaw.com


I. Overview

First thing that must be kept in mind is that while private international law is well developed in Latin America, there is no systematic, harmonized or comprehensive set of rules applicable to matters of jurisdiction within the region. Existing sources of law applicable to jurisdictional matters are found in international, regional and domestic rules.

Internationally, the Organization of American States (OAS) is a source of rules regarding jurisdictional matters particularly with respect to conventions that have been developed through the efforts of the CIDIPs.1 Regionally, the rules enacted by MERCOSUR, which is the acronym for Mercado Común del Sur, will be the focus of this analysis. Finally, there will be a reference to domestic rules on jurisdiction as they apply in the region.

II. Existing Rules on Jurisdiction

A. Inter-American Conventions

1) Inter-American Convention on the Extraterritorial Validity of Foreign Judgments and Arbitral Awards

Within the framework of the OAS, the initial effort to address matters of jurisdiction exclusively was the Inter-American Convention on the Extraterritorial Validity of Foreign Judgments and Arbitral Awards, Montevideo, 1979 (hereinafter, the 1979 Montevideo Convention). This Convention is a single convention, the importance of which is that it only establishes rules that address the recognition and enforcement of foreign judgments. A single convention does not include rules on direct jurisdiction, i.e., provisions that set forth specific criteria to determine or to decline jurisdiction.2

The provisions of the 1979 Montevideo Convention only apply when there is an existing judgment or arbitral award rendered in civil, commercial or labor proceedings in one of the signatory countries. In such cases, the Convention sets forth the requirements that must be met in order to establish the extraterritorial validity of such judgments, awards or decisions.3 The Convention also sets forth the procedures to recognize and enforce them.4 At present, the 1979 Montevideo Convention is in force in the following countries: Argentina, Bolivia, Brazil, Colombia, Ecuador, Mexico, Paraguay, Peru, Uruguay and Venezuela.

2) Inter-American Convention on Jurisdiction in the International Sphere for the Extraterritorial Validity of Foreign Judgments

The 1979 Montevideo Convention -- specifically, Art. 2 (d) of the Convention -- was subsequently clarified and complemented by the 1984 Inter-American Convention on Jurisdiction in the International Sphere for the Extraterritorial Validity of Foreign Judgments (the 1984 La Paz Convention). The 1984 La Paz Convention addressed a concern among OAS member countries that jurisdictional disputes would be complicated by the fact that the 1979 Montevideo Convention did not specify any grounds for jurisdiction.

The purpose of the 1984 La Paz Convention was to set forth rules of indirect jurisdiction and, therefore, does not set forth criteria to determine the jurisdiction of the original court. The Convention sets forth the standards used to review the jurisdiction of the court of origin. In certain cases, the provisions of the 1984 La Paz Convention are similar to those that might be included in a double convention, which would also set forth criteria for determining the jurisdiction of the original court. For example, the Convention has provisions regarding the domicile or habitual residence of the defendant for purposes of establishing jurisdiction (or, as in this case, the validity of the original jurisdiction). However, in other matters, the Convention criteria fail to meet the level of detail typical of double conventions. For example, there is a very general provision in the Convention that allows jurisdiction to be determined based on a written agreement of the parties to submit their disputes to the jurisdiction where judgment was rendered in matters arising from an international business contract. The Convention provides no further criteria for such contracts when, for example, the parties have failed to agree on a specific jurisdiction.5

Significantly, the Convention provides that the extraterritorial validity of a judgment may be denied if such judgment is contrary to the standards of exclusive jurisdiction established by the country that is required to recognize such judgment.6 This provision is significant due to the fact that it would permit that country to refuse recognition of a foreign judgment when, according to its domestic law, such a matter would fall within its exclusive jurisdiction. This approach is consistent with the practice in most legal systems that have embraced the concept of exclusive jurisdiction.7 The relevant rules are called "exclusive" because they automatically invalidate any contractual or tacit choice of jurisdiction. Matters that have traditionally been included in exclusive jurisdiction relate to immovable property, corporations (legal entities), public registries and intellectual property rights. Although what constitutes a matter of exclusive jurisdiction has not been specifically defined under Inter-American conventions, it should be noted that the issue is commonly regulated under double or mixed conventions.8 9

The scope of the 1984 La Paz Convention is more restricted than that of the 1979 Montevideo Convention. Among other issues, it specifically excludes matters of tort.10 It should also be noted that the 1984 La Paz Convention, although widely signed, has only been ratified by Mexico.

3) Other Inter-American Conventions

The 1979 Montevideo Convention and the 1984 La Paz Convention are the only two Inter-American conventions that apply exclusively to matters of jurisdiction. Other Inter-American conventions, however, contain provisions that may influence the determination of the court having competent jurisdiction, including the following:

  • the 1975 Inter-American Convention on International Commercial Arbitration;11
  • the 1975 Inter-American Convention on Letters Rogatory;12
  • the 1975 Inter-American Convention on the Taking of Evidence Abroad;13
  • the 1979 Iner-American Convention on General Rules of Private International Law;14 and
  • the 1979 Inter-American Convention on Execution of Preventive Measures.15

The majority of these conventions do not specify rules regarding jurisdiction but merely establish guidelines for the recognition and, whenever applicable, the enforcement of the arbitral awards, letters rogatory or preventive measures.

With respect to preventive measures and letters rogatory (either for the service of process or for the taking of evidence abroad), it should be noted that although the country requested takes the necessary steps to process the letter rogatory or to execute the preventive measures, this does not mean that there has been recognition of the ultimate jurisdiction of the issuing country, or a commitment to eventually recognize or execute the foreign judgment rendered in the main proceedings.16

The grounds for processing such documents, as well as several procedures applicable to their recognition and enforcement, are often governed by domestic laws. Moreover, the application of domestic laws may encompass more than merely procedural steps, as confirmed by Article 1 of the Inter-American Convention on General Rules of Private International Law.17

The General Rules Convention is a significant convention because it provides grounds for declining jurisdiction or for rejecting the application of a foreign law or the recognition of a foreign judgment on the basis of public policy. Public policy is one of the most common guiding principles in civil law countries (traditionally incorporated into Inter-American conventions such as those referenced above and also included in several provisions of the General Rules Convention). Typically, public policy surfaces in the context of the rationale given for rejecting rather than declining jurisdiction. Foreign laws and juridical relationships established in another country are recognized and/or applied only when they are not contrary to the public policy of the country where recognition or application is required.18

The General Rules Convention also refers to a mechanism called "fraude á la loi," a term to describe a fraudulent attempt by the parties (i.e., to a contract) to select a jurisdiction with which there are insufficient or no contacts. In such cases, the choice of jurisdiction by the parties will not be recognized as valid because basic principles of the law of another member country have been fraudulently evaded.19

The application of fraude á la loi may lead to results similar to those stemming from the application of forum non conveniens. Indeed, both tend to prevent the exercising of jurisdiction by an inappropriate forum when another would be better suited. The purpose of fraude á la loi and forum non conveniens is to provide the court a means to seek "justice in each specific case," a purpose also cited in the General Rules Convention.20

2. MERCOSUR

Several bodies of rules adopted by the MERCOSUR countries directly affect the issue of jurisdiction.21 Such rules include the Protocol of Brasilia for the Solution of Controversies; the Las Leñas Protocol on Jurisdictional Assistance and Cooperation Regarding Civil, Commercial, Labor and Administrative Matters; the San Luis Protocol on Civil Liability Resulting from Traffic Accidents; the Santa Maria Protocol on International Jurisdiction Regarding Consumer Relations; the Ouro Preto Protocol on Preventive Measures; and related additional agreements or protocols.

1) Protocol of Brasilia for the Solution of Controversies

The Protocol of Brasilia for the Solution of Controversies was one of the first protocols adopted by the MERCOSUR countries following the signature of the initial treaty. The Protocol establishes a procedure for the resolution of disputes22 by first requiring that a member country resort to direct negotiations.23 If such negotiations are unsuccessful, any member country may submit the controversy to MERCOSUR's Common Market Group.24 If none of these procedures is successful, then the member country has the option to submit the controversy to an Arbitral Tribunal (the Protocol creates a special jurisdiction for the resolution of controversies).25 The Arbitral Tribunal will address the controversy and base its decisions on provisions of the MERCOSUR Treaty, other agreements enacted under the MERCOSUR framework, the decisions of the Common Market Council, and the resolutions of the Common Market Group. If none of these is applicable or pertinent, the Protocol provides that "principles and dispositions of international law that are applicable to the matter" will govern.26

The Protocol does not determine how controversies will be resolved in the absence of any provisions such as those described above. However, it enables the Tribunal to decide any controversy based on equity, provided the parties have agreed to such an approach.27

The procedures set forth under the Brasilia Protocol provide mechanisms for governments to initiate claims or negotiations with other member countries. For private parties (entities or individuals), there are no clear and expeditious means under these provisions to initiate claims. Private parties must resort to intermediaries and intergovernmental bodies such as the MERCOSUR Commerce Commission, which may take the initiative to start negotiations.

2) Las Leñas Protocol on Jurisdictional Assistance and Cooperation Regarding Civil, Commercial, Labor and Administrative Matters

The Las Leñas Protocol includes provisions similar to those of the Inter-American Convention on Letters Rogatory, the Convention on the Taking of Evidence Abroad and the 1979 Montevideo Convention on the Extraterritorial Validity of Foreign Judgments and Arbitral Awards. All of these matters are encompassed by the Las Leñas Protocol. Consequently, what has been discussed in connection with these conventions is also true of this Protocol. Most specifically, the Protocol does not set forth substantive criteria to determine or to decline jurisdiction. The Las Leñas Protocol is a single convention that establishes the procedures and guidelines that must be followed in order to obtain recognition (and enforcement, when applicable) of decisions, letters rogatory, judgments or awards. This Protocol also contains provisions regarding the application of the public policy principle.

3) San Luis Protocol on Civil Liability Resulting from Traffic Accidents

Although the subject matter of the San Luis Protocol on Civil Liability Resulting from Traffic Accidents is very specific, the Protocol is significant because it creates a precedent for the regulation of non-contractual liability, which in this case involves liability resulting from traffic accidents.28 In addition, the Protocol acknowledges the relevance of adopting common criteria on international jurisdiction and conflict of law provisions. The Protocol provides that the plaintiff may opt between pursuing his/her claim before the courts where the accident took place, or the courts of the place of domicile of the defendant or of the plaintiff.29 As far as the applicable substantive law is concerned, civil liability resulting from traffic accidents is governed by the domestic law of the member country where the accident took place. However, if the accident involves parties who are domiciled in another member country, such country's domestic rules will apply.30

4) Protocol on International Jurisdiction Regarding Consumer Relations

The Protocol on International Jurisdiction Regarding Consumer Relations follows a trend, created by the San Luis Protocol, to create regional rules on jurisdiction. The subject matter of this Protocol is consumer relations, and the general rule is that jurisdiction is based on the domicile of the consumer.31 However, other jurisdictions may be permissible, provided the consumer consents to such jurisdiction. Alternative jurisdictions include the place of execution of the contract, the place where the services are rendered or the goods are delivered, or the defendant's domicile.32

This Protocol is a true double convention because it sets forth specific criteria to determine jurisdiction as well as the procedures that must be followed in order to obtain the extraterritorial recognition of judgments.33

5) Ouro Preto Protocol on Preventive Measures

In legal proceedings, provisional or preventive measures are often essential to maintain the "status quo" pending final judgment and play a significant role in international litigation. The grounds for determining jurisdiction in these matters may differ from those of the main proceedings. The Ouro Preto Protocol on Preventive Measures addresses these preventive proceedings with the understanding that their purpose is to avoid irreparable harm that may occur to persons, property or obligations, and ensure the effectiveness of pending or future judicial proceedings. One of the sources for the provisions of the Protocol was the text of the 1979 Inter-American Convention on Preventive Measures.

Articles 6-8 of the Protocol mirror Articles 3 and 4 of the Inter-American Convention and provide that the admissibility of these preventive measures will be determined by the courts of the country that requires such measures, while the execution of the measures and the procedures to be followed are established by the courts of the country addressed by the preventive measures.

The Protocol provides that the execution of preventive measures by the court does not imply a commitment to recognize and/or enforce the final judgment that may be rendered by the foreign court in the main proceedings.34 The Protocol also invokes the principle of protection of the public order, as does the Inter-American Convention.

III. Recognition and Enforcement of Foreign Judgments

It is an accepted principle in private international law that a review of the original grounds for jurisdiction with respect to a foreign judgment is typically performed by the court in which enforcement or recognition of that foreign judgment is being sought.35 This is true in Latin American countries. However, the procedures and the conditions required for such enforcement or recognition may vary from country to country. Additionally, the procedures and conditions will vary depending on the authorities who are in charge of the initial enforcement steps (Supreme Court, Central Authorities, Diplomatic authorities or courts).

In Latin America, requirements regarding the enforcement and recognition of foreign judgments are typically found in domestic law. In addition, several of the conventions and regional agreements discussed above also set forth requirements for the recognition and enforcement of foreign judgments.

The table below lists the most common requirements for the recognition and enforcement of foreign judgments and indicates where such requirements are found in the four countries studied herein, as well as the relevant conventions and protocols.

Requirements: Argentina Brazil Guatemala Mexico 1979 Montevideo Convention Las Leñas Protocol Hague Draft Preliminary Convention
The judgment must be final in the jurisdiction where it was issued.
The judgment must have been issued by a competent court under the law of the country in which it must be enforced/recognized.    
The defendant must have been duly notified and granted an opportunity to submit his/her defense.  
The judgment must be valid (enforceable) in the jurisdiction in which it was rendered.  
The judgment must be authentic [requirements of legalization, certification, translation, etc.].  
The judgment must not be in breach of the principles of public policy of the country of recognition. 37
The defendant cannot be in default / legally absent.            
The claim must be of a personal, civil or commercial nature.            
The judgment should not be contrary to a previous or simultaneous judgment of a court on the same matter.      
The claim involved in the judgment may not be the subject of a pending lawsuit between the same parties, when the court addressed was first seized.      
Negative reciprocity applied.          
The judgment cannot be based on prohibited grounds of jurisdiction.            
The judgment must not be contrary to the criteria of exclusive jurisdiction of the country addressed.   38  

With the exception of Guatemala, the basic requirements for the recognition and enforcement of foreign judgments find general acceptance especially with respect to the first six requirements. The other notable exception with respect to specific requirements is a provision in the Hague Preliminary Draft Convention that allows for the recognition and enforcement of a judgment, even if such judgment was not issued by a court that would be considered competent under the laws of the country addressed.

There is more divergence, however, on the procedural requirements with respect to conflicting judgments, pending actions and grounds of exclusive and prohibited jurisdiction.

Moreover, the public policy exception plays a significant role in the recognition and enforcement of judgments. This doctrine is subject to broad interpretation and may be used to deny recognition and enforcement.38

IV. Summary Comparative Analysis

A. Jurisdiction in General

Both international and domestic rules regarding jurisdiction focus primarily on the recognition and enforcement of foreign judgments.

The scope of existing rules on jurisdiction is quite varied. In some instances, there are rules of indirect jurisdiction such as those contained in the 1984 La Paz Convention. These rules, however, are not comprehensive and therefore do not provide answers to the majority of possible problems. In addition, the existing rules are often restricted to certain parties or to specific subject matters. For example, the Brasilia Protocol's notion of special jurisdiction only governs government-to-government controversies. In contrast, the San Luis and Santa Maria Protocols cover private party disputes, but are limited to matters involving civil liability resulting from traffic accidents and consumer protection.

Domestic laws also vary in their treatment of private international law rules governing jurisdiction. In Argentina, private international law rules regarding jurisdiction are comprehensive and include specific rules on direct jurisdiction (CCCP). Rules regarding exclusive jurisdiction exist in three out of the four countries we have compared above. In Brazil and Mexico, the rules define the grounds for exclusive jurisdiction, but in Argentina they do not.

B. Bases for Declining Jurisdiction

1. forum non conveniens

None of the countries we have mentioned explicitly recognizes the principle of forum non conveniens. However, there are alternative procedures available to avoid the selection of an inappropriate forum. These include the following: a) fraude á la loi (Argentina, Mexico, General Rules Convention); b) the determination of the justice of the particular case (General Rules Convention); c) the prevention of a denial of justice (Mexico, 1984 La Paz Convention); and d) the determination of consultation procedures (Las Leñas, San Luis, Santa Maria and Ouro Preto Protocols).

2. Lis pendens

With the exception of the Bustamante Code and the Las Leñas Protocol, rules regarding lis pendens are typically found in domestic law in Latin America. All four countries studied herein have rules governing lis pendens. In Argentina, Guatemala and Mexico, the rules prohibit the admission of a second procedure when there is a pending suit in their jurisdiction. In Brazil, however, the rules permit the existence of concurrent procedures when one of them has been initiated before a foreign court and the matter allows for concurrent jurisdictions.

The Brazilian approach is similar to the practice followed in U.S., although it differs in the sense that the U.S. specifies that concurrent proceedings will continue until there is res judicata in one of them. Brazil does not clarify this matter.

In Argentina and Mexico, the law makes reference to connected claims (i.e., claims that are not identical in nature) in which case both procedures are accumulated. Accumulation, however, only applies at the domestic level, and not when one of the procedures is taking place in a foreign jurisdiction.

V. Other Challenges

A. Party Autonomy

In many Latin American countries, choice of law is a complex issue. By way of illustration, in Uruguay it has been established that in the absence of a specific treaty, internal conflict of law rules apply, which are included in the appendix to the Civil Code and do not admit party autonomy regarding forum or applicable law shopping.

For instance, and with certain exceptions, the Uruguayan doctrine understands that it is not possible to choose applicable law in international arbitration clauses. Although the fact that Uruguay has ratified the 1958 U.N. Convention as well as the Inter-American Convention on Arbitral Awards (1975) should lead to a different conclusion, the practical application of these international legal instruments has been extremely limited. Some courts, based on the 1994 OAS Convention on the Law Applicable to International Contracts, have defended the applicability of arbitration clauses in all matters, including choice of law and forum shopping. However, the existence of dissenting opinions brings about a high degree of legal uncertainty.

Since no choice of law can be made, we need to analyze on a case-by-case basis which law will apply under existing Uruguayan regulations. Let us take a case that might very well subject to electronic dealings between the relevant parties: a distribution agreement between a manufacturer located in the U.S. and a distributor in Uruguay. Since there is no treaty between these countries, if a conflict arises, Uruguayan courts would resort to the principles established in the Appendix of the Civil Code. In the case of services contracts, these principles in turn resort to other international conventions signed by the country, which establish that the law that applies is that of the place where the main contractual obligation is to be performed. In the case of a distribution agreement, the main obligation is that of the distributor and in our case it is performed in Uruguay. Consequently, Uruguayan law will apply.

B. Territoriality

Additionally, many countries follow the rule whereby the competent court is the one of the country whose law is being is applied.

C. Validity vs. Enforceability.

The distinction between validity and enforceability needs to be stressed. The analysis that we have made so far does not mean that in practice there are no distribution agreements signed by a U.S. manufacturer and a Uruguayan distributor (paper-based or electronic agreements), and that there are clauses under such agreements that establish that the parties have agreed to submit their disputes to arbitration, and that the applicable law will be the law of the State of New York. That type of agreements may exist and may be applied by the parties on a regular basis; in the event of a conflict, the arbitrators will decide based on N.Y. law. If the award is against the distributor and the distributor accepts the award, then there is no problem. The problem arises when the distributor does not comply with his/her obligation or with the ruling of one or more arbitrators, and the other party needs to enforce that award in Uruguay, which is the place where normally the distributor's assets will be located.

Electronic Trading of Securities.Let us take another example, that is also becoming more and more common in the electronic world, and that refers to the trading of securities electronically. Investment securities are often dematerialized and held indirectly (that is, as electronic book-keeping entries) at depository entities. In other words, they constitute fungible assets. Uruguayan conflict of law provisions establish that when an agreement refers to fungible assets, the applicable law would be that where the debtor is domiciled at the time of the execution of the agreement. However, once again, this will be a matter of interpretation by the Court, following the evidence submitted by the parties. If from said evidence it can be determined, that although securities are fungible, they can be clearly located within the clearing system of the custodian, then it may be possible for courts to rule that the securities are located in the home jurisdiction of the custodian, and that is the law that applies. That might be Uruguayan law, or it might be another country's, and in the latter case it would be possible to respect the choice of foreign law as a governing law.

VI. E-Commerce

When dealing with e-commerce and how it has influenced legal developments throughout the world, and not only in Latin America, it is worthwhile to note the widespread acceptance of certain ADR mechanisms that are of particular importance when we are dealing with the electronic world. These mechanisms have also been adopted by Latin American countries. Such is the case of ICANN's (Internet Corporation for Assigned Names and Numbers) implementation of alternative dispute resolution (ADR) mechanisms like the Uniform Domain Resolution Policy (UDRP).

However, for the most part existing regulations generally refer to traditional, paper-based contracts. As a matter of fact, as we have seen, most of the rules on jurisdiction that apply in Latin America were written before the advent of electronic commerce. In addition, newly enacted or proposed regulations on e-commerce have not addressed the issue of jurisdiction and applicable law as they relate to e-commerce.

VII. Conclusions

The application of the law in civil law countries is typically viewed as very rigid by those steeped in the common law tradition. The civil law is set forth in codes, statutes and treaties and leaves little room for interpretation. With respect to jurisdictional matters, existing rules are often inadequate. On the other hand, the common law is viewed by many in the civil law tradition as granting excessive discretion to judges. For example, the application of the common law principle of forum non conveniens is held up as an example of the excessive discretion given to common law courts.

On the other hand, there appears to be a growing trend in Latin America toward the transnational regulation of matters pertaining to civil liability and consumer protection. This trend could result in the development of rules along the lines of the Hague Preliminary Draft Convention.

The significance of the Hague Preliminary Draft Convention is that it provides an overview of current trends in international private law, including how issues of jurisdiction and declining jurisdiction are addressed by different legal systems. Under the Hague Conference, grounds for determining and declining jurisdiction need to be defined in uniform, simple and effective provisions, providing certainty and foreseeability. When defining such provisions, the appropriateness of the forum is key; thus consideration is given to the need to develop clear yet sufficiently flexible rules.

We should also keep in mind that many Latin American countries are signatories of the Inter-American Convention on General Rules of Private International Law, which under Art. 9 establishes that when there are conflicting regulations, consideration must be given to the goals sought by said regulations, and to the equity of specific cases. Following the spirit of this provision, we should be aware of the non-advisability of establishing rigid rules, but rather flexible guidelines.

Endnotes

  1. CIDIPs, according to their acronym in Spanish (Conferencia Inter-Americana de Derecho Internacional Privado).

  2. A double convention exists when jurisdictional matters are regulated in a convention along with provisions that regulate recognition and enforcement proceedings. Double conventions regulate the direct jurisdiction of courts in the subjects they govern (contracts, torts, trusts, etc.), as well as related matters such as those that pertain to the resulting judgments (enforcement and recognition). Examples of double conventions include the Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters, Sept. 27, 1968, as amended, reprinted in 29 I.L.M. 1413 (1990) [hereinafter Brussels Convention]; and the Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters, Sept. 16, 1988, reprinted in 28 I.L.M. 620 (1989) [hereinafter Lugano Convention].

  3. 1979 Montevideo Convention, Art. 2. See further, Section III, Recognition and Enforcement of Foreign Judgments.

  4. Id., Art. 3 et seq.

  5. 1984 La Paz Convention, Art. 1. Jurisdiction must not have been established in an abusive manner and it must have a reasonable connection with the subject matter of the action. Id.

  6. Id., Art. 4.

  7. Including, for example, Argentina, Brazil and Mexico.

  8. See, for example, the Hague Preliminary Draft Convention, Art. 12.

  9. Apart from simple and double conventions, international efforts may take the form of "mixed" conventions. Such conventions allow each country to preserve an ability to establish fora/jurisdiction grounds that have not been included in the relevant convention, based on their domestic law. This approach is embodied in the Hague Preliminary Draft Convention, but with certain restrictions. The Draft Convention provides that judgments based on such domestic provisions shall be excluded from Chapter III (Recognition and Enforcement), and thus they may not be recognized and enforced under the Convention. This approach has the advantage of enabling countries to create additional fora that may become acceptable, or even necessary, in the future, without the need to revise the Convention. What is important is that the criteria of the domestic rules on jurisdiction be recognized by the country where a party attempts to have a judgment recognized or enforced.

  10. Art. 6.

  11. Ratified by Argentina, Bolivia, Brazil, Chile, Colombia, Costa Rica, Ecuador, El Salvador, Guatemala, Honduras, Mexico, Panama, Paraguay, Peru, United States, Uruguay and Venezuela.

  12. Ratified by Argentina, Brazil, Chile, Colombia, Costa Rica, Ecuador, El Salvador, Guatemala, Honduras, Mexico, Panama, Paraguay, Peru, United States, Uruguay and Venezuela.

  13. Ratified by Argentina, Chile, Colombia, Costa Rica, the Dominican Republic, Ecuador, El Salvador, Guatemala, Honduras, Mexico, Panama, Paraguay, Peru, Uruguay and Venezuela.

  14. Ratified by Argentina, Brazil, Colombia, Ecuador, Guatemala, Mexico, Paraguay, Peru, Uruguay and Venezuela.

  15. Ratified by Argentina, Colombia, Ecuador, Guatemala, Paraguay, Peru and Uruguay.

  16. Inter-American Convention on Letters Rogatory, Art. 9. Inter-American Convention on the Taking of Evidence Abroad, Art. 8. Inter-American Convention on Execution of Preventive Measures, Art. 6.

  17. The second paragraph of Article 1 of the Convention [hereinafter, the General Rules Convention] specifies that [i]n the absence of an international rule, the States Parties shall apply the conflict rules of their domestic law.

  18. General Rules Convention, Arts. 5 and 7.

  19. Id., Art. 6. It is a matter for the authorities of the affected state to determine the fraudulent intent of the interested parties. Id.

  20. Article 9.

  21. On March 26, 1991, Argentina, Brazil, Paraguay and Uruguay signed the Treaty of Asunción, which created an integration scheme known as Mercado Común del Sur or MERCOSUR. The treaty became effective as of January 1, 1995. The Treaty of Asunción, later complemented by the Ouro Preto Protocol (signed on December 17, 1994), created a framework agreement for future negotiations leading to a customs union and, at a later stage, to a common market.

  22. The relevant procedures were regulated in further detail by the Regulation to the Brasilia Protocol, enacted by Common Market Council Decision No. 17/98.

  23. Brasilia Protocol, Chapter II.

  24. Id., Chapter III.

  25. Id., Chapter IV.

  26. Brasilia Protocol, Art. 19.

  27. Id.

  28. Historically, it may be noteworthy to mention that the work of the Hague Conference on Private International Law developed along similar lines when it came to dealing with matters of non-contractual liability. Some of the initial efforts in this area included the 1973 Convention on the Law Applicable to Products Liability and the 1970 Convention on the Law Applicable to Traffic Accidents.

  29. Article 7.

  30. Article 3.

  31. Article 4.

  32. Article 5.

  33. Chapter V.

  34. Article 10 of the Protocol; Art. 6 of the Inter-American Convention.

  35. Friedrich K. Juenger, The Recognition of Money Judgments in Civil and Commercial Matters, 36 AM. J.COMP.L.1, at 13.

  36. Under the Hague Preliminary Draft Convention, the only mandatory requirements are that the judgment must be final and enforceable in the state of origin, not contrary to a state's exclusive jurisdiction or based on any prohibited grounds of jurisdiction. As for the other requirements, recognition/enforcement "may" be refused, according to Art. 28.

  37. Although the law in Guatemala requires that the obligation be "legal" and does not specifically refer to public policy, this appears to be the meaning of the requirement.

  38. This requirement was added by Art. 4 of the 1984 La Paz Convention, which complemented the 1979 Montevideo Convention.

  39. See, for example, Chin Kin and Gretchen Cowen, The Recognition and Enforcement of Foreign Judgments under Brazilian Law and the Uniform Foreign Money-Judgments Recognition Act, 5 Transnat'l Law. 725, at 744.

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