Signed
at Mexico, D.F., Mexico, on March 17, 1994,
at the Fifth Inter-American Specialized Conference on
Private International Law (CIDIP-V)
The
States Parties to this Convention,
REAFFIRMING
their desire to continue the progressive development
and codification of private international law among
member States of the Organization of American States;
REASSERTING
the advisability of harmonizing solutions to international
trade issues;
BEARING
in mind that the economic interdependence of States
has fostered regional integration and that in order
to stimulate the process it is necessary to facilitate
international contracts by removing differences in the
legal framework for them,
HAVE
AGREED to approve the following Convention:
CHAPTER
I
Scope
of Application
Article
1- This Convention shall determine the law applicable
to international contracts.
It
shall be understood that a contract is international
if the parties thereto have their habitual residence
or establishments in different States Parties or if
the contract has objective ties with more than one State
Party.
This
Convention shall apply to contracts entered into or
contracts to which States or State agencies or entities
are party, unless the parties to the contract expressly
exclude it. However, any State Party may, at the
time it signs, ratifies or accedes to this Convention,
declare that the latter shall not apply to all or certain
categories of contracts to which the State or State
agencies and entities are party.
Any
State Party may, at the time it ratifies or accedes
to this Convention, declare the categories of contract
to which this Convention will not apply.
Article
2-
The law designated by the Convention shall be
applied even if said law is that of a State that is
not a party.
Article
3-
The provisions of this Convention shall be applied,
with necessary and possible adaptations, to the new
modalities of contracts used as a consequence of the
development of international trade.
Article
4-
For purposes of interpretation and application
of this Convention, its international nature and the
need to promote uniformity in its application shall
be taken into account.
Article
5- This Convention does not determine the law applicable
to:
a)
questions arising from the marital status of natural
persons, the capacity of the parties, or the consequences
of nullity or invalidity of the contract as a result
of the lack of capacity of one of the parties;
b)
contractual obligations intended for successional questions,
testamentary questions, marital arrangements or those
deriving from family relationships;
c)
obligations deriving from securities;
d)
obligations deriving from securities transactions;
e)
the agreements of the parties concerning arbitration
or selection of forum;
f)
questions of company law, including the existence, capacity,
function and dissolution of commercial companies and
juridical persons in general.
Article
6-
The provisions of this Convention shall not be
applicable to contracts which have autonomous regulations
in international conventional law in force among the
States Parties to this Convention.
CHAPTER
II
Determination
of applicable law
Article
7-
The contract shall be governed by the law chosen
by the parties. The parties' agreement on this
selection must be express or, in the event that there
is no express agreement, must be evident from the parties'
behavior and from the clauses of the contract, considered
as a whole. Said selection may relate to the entire
contract or to a part of same.
Selection
of a certain forum by the parties does not necessarily
entail selection of the applicable law.
Article
8- The parties may at any time agree that the contract
shall, in whole or in part, be subject to a law other
than that to which it was previously subject, whether
or not that law was chosen by the parties. Nevertheless,
that modification shall not affect the formal validity
of the original contract nor the rights of third parties.
Article
9- If the parties have not selected the applicable
law, or if their selection proves ineffective, the contract
shall be governed by the law of the State with which
it has the closest ties.
The
Court will take into account all objective and subjective
elements of the contract to determine the law of the
State with which it has the closest ties. It shall also
take into account the general principles of international
commercial law recognized by international organizations.
Nevertheless,
if a part of the contract were separable from the rest
and if it had a closer tie with another State, the law
of that State could, exceptionally, apply to that part
of the contract.
Article
10-
In addition to the provisions in the foregoing
articles, the guidelines, customs, and principles of
international commercial law as well as commercial usage
and practices generally accepted shall apply in order
to discharge the requirements of justice and equity
in the particular case.
Article
11- Notwithstanding the provisions of the preceding
articles, the provisions of the law of the forum shall
necessarily be applied when they are mandatory requirements.
It
shall be up to the forum to decide when it applies the
mandatory provisions of the law of another State with
which the contract has close ties.
CHAPTER
III
Existence
and Validity of the Contract
Article
12- The existence and the validity of the contract
or of any of its provisions, and the substantive validity
of the consent of the parties concerning the selection
of the applicable law, shall be governed by the appropriate
rules in accordance with Chapter 2 of this Convention.
Nevertheless,
to establish that one of the parties has not duly consented,
the judge shall determine the applicable law, taking
into account the habitual residence or principal place
of business.
Article
13-
A contract between parties in the same State
shall be valid as to form if it meets the requirements
laid down in the law governing said contract pursuant
to this Convention or with those of the law of the State
in which the contract is valid or with the law of the
place where the contract is performed.
If
the persons concerned are in different States at the
time of its conclusion, the contract shall be valid
as to form if it meets the requirements of the law governing
it as to substance, or those of the law of one of the
States in which it is concluded or with the law of the
place where the contract is performed.
CHAPTER
IV
Scope
of the applicable law
Article
14- The law applicable to the contract in virtue
of Chapter 2 of this Convention shall govern principally:
a)
its interpretation;
b)
the rights and obligations of the parties;
c)
the performance of the obligations established by the
contract and the consequences of nonperformance of the
contract, including assessment of injury to the extent
that this may determine payment of compensation;
d)
the various ways in which the obligations can be performed,
and prescription and lapsing of actions;
e)
the consequences of nullity or invalidity of the contract.
Article
15- The provisions of Article 10 shall be taken
into account when deciding whether an agent can obligate
its principal or an agency, a company or a juridical
person.
Article
16- The law of the State where international contracts
are to be registered or published shall govern all matters
concerning publicity in respect of same.
Article
17- For the purposes of this Convention, "law"
shall be understood to mean the law current in a State,
excluding rules concerning conflict of laws.
Article
18- Application of the law designated by this Convention
may only be excluded when it is manifestly contrary
to the public order of the forum.
CHAPTER
V
General
Provisions
Article
19- In a State Party, the provisions of this Convention
shall apply to contracts concluded subsequent to its
entry into force in that State.
Article
20- This Convention shall not affect the application
of other international conventions to which a State
Party to this Convention is or becomes a party, insofar
as they are pertinent, or those concluded within the
context of integration movements.
Article
21- When signing, ratifying or acceding to this
Convention, States may formulate reservations
that apply to one or more specific provisions and which
are not incompatible with the effect and purpose of
this Convention.
A
State Party may at any time withdraw a reservation it
has formulated. The effect of such reservation
shall cease on the first day of the third calendar month
following the date of notification of withdrawal.
Article
22- In the case of a State which has two or more
systems of law applicable in different territorial units
with respect to matters covered by the Convention:
a) any reference to the laws of the State shall be construed
as a reference to the laws in the territorial unit in
question; b) any reference to habitual residence
or place of business in that State shall be construed
as a reference to habitual residence or place of business
in a territorial unit of that State.
Article
23- A State
within which different territorial units have their
own systems of law in regard to matters covered by this
Convention shall not be obliged to apply this Convention
to conflicts between the legal systems in force in such
units.
Article
24- If a State
has two or more territorial units in which different
systems of law apply in relation to the matters dealt
with in this Convention, it may, at the time of signature,
ratification or accession, declare that this Convention
shall extend to all its territorial units or to only
one or more of them.
Such
declaration may be modified by subsequent declarations,
which shall expressly indicate the territorial unit
or units to which the Convention applies. Such
subsequent declarations shall be transmitted to the
General Secretariat of the Organization of American
States, and shall take effect ninety days after the
date of their receipt.
CHAPTER
VI
Final
Clauses
Article
25-
This Convention shall be open to signature by
the member States of the Organization of American States.
Article
26- This Convention shall be subject to ratification.
The instruments of ratification shall be deposited with
the General Secretariat of the Organization of American
States.
Article
27- This Convention shall remain open for accession
by any other State after it has entered into force.
The instruments of accession shall be deposited with
the General Secretariat of the Organization of American
States.
Article
28-
This Convention shall enter into force for the
ratifying States on the thirtieth day following the
date of deposit of the second instrument of ratification.
For
each State ratifying or acceding to the Convention after
the deposit of the second instrument of ratification,
the Convention shall enter into force on the thirtieth
day after deposit by such State of its instrument of
ratification or accession.
Article
29- This Convention shall remain in force indefinitely,
but any of the States Parties may denounce it.
The instrument of denunciation shall be deposited with
the General Secretariat of the Organization of American
States. After one year from the date of deposit
of the instrument of denunciation, the Convention shall
no longer be in force for the denouncing State.
Article
30- The original instrument of this Convention,
the English, French, Portuguese and Spanish texts of
which are equally authentic, shall be deposited with
the General Secretariat of the Organization of American
States, which shall forward an authenticated copy of
its text to the Secretariat of the United Nations for
registration and publication in accordance with Article
102 of its Charter. The General Secretariat of
the Organization of American States shall notify the
Member States of the Organization and the States that
have acceded to the Convention of the signatures, deposits
of instruments of ratification, accession and denunciation,
as well as of reservations, if any, and of their withdrawal.
IN
WITNESS WHEREOF the undersigned Plenipotentiaries,
being duly authorized thereto by their respective Governments,
do hereby sign the present Convention.
DONE
AT MEXICO, D.F., MEXICO, this seventeenth day of March,
one thousand nine hundred and ninety-four.