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(Considerations by Diego P. Fernández Arroyo, OAS special
guest)*
10. This is a controversial topic and one that has been used
to further particular interests or, at best, inconsistently.
Thus, in connection with CIDIP-VI, “duplication of
effort”[4]/ was repeatedly adduced as an argument to
belittle the importance of the transboundary pollution
topic, while no mention was made of the fact that the
subject of secured transactions is being addressed in all
international fora. In general, of course, it may be true
that the proliferation of international conventions on the
same subject, instead of helping to solve the problems
addressed, usually leads to confusion and, often enough,
legal uncertainty. I have said as much repeatedly in my
works on inter-American international private law and the
international private law of Mercosur. However, it is not a
universal or an absolute truth. On the contrary, a number of
aspects need to be spelled out.
11. First and foremost, it should be borne in mind that the
alleged dialectical contradiction between regionalism and
universalism contains a hidden fallacy, since they are not
comparable terms and therefore there can be no true choice
between one and the other as a general stance, nor, to a
large extent, with respect to specific issues. If we take
these arguments to their extremes, no topic can be thought
of in regional terms; much less so nowadays. International
commercial arbitration or the “abduction” of minors by one
of their parents (to name two topics addressed by both CIDIP
and fora with “universal” aspirations–whereby the quotation
marks are very important in this case–have rather similar
manifestations in any part of the world, to such an extent
that it becomes very difficult, as well as useless, to look
for an “American” angle to these topics. And when these same
topics were discussed in CIDIP there were those who drew
attention to the work of the United Nations and the Hague
Conference, respectively. Nevertheless, CIDIP documents on
those topics were not superfluous and had considerable
repercussions. There are 17 states parties to the
arbitration convention of CIDIP I! There is nothing wrong
about CIDIP taking advantage of the work done by other
codification institutions. If we think for a moment, the
more seriously legislators work, in all countries, the more
comparative solutions they consult in other countries and in
international fora. The important thing is that the rules
that CIDIP adopt are in some way useful to member countries.
And that is true of any topic. The oft-repeated notion of
the alleged universality of “commercial” topics has been
proved wrong in reality. All regional organizations have
drawn up, are still drawing up, and apply commercial
standards.
12. One more fact is of considerable interest: the member
states, above all the Latin American ones, tend to feel that
CIDIP is closer, more “theirs,” than any other forum
codifying international private law. The explanation is
fairly simple: in the OAS, all member states have voice and
vote regarding each and every word in a CIDIP document (it
is another matter whether they make use of that right or
not); by contract, participation by countries of the
Americas (especially Latin American and Caribbean countries)
in the other fora (The Hague Conference, UNIDROIT, UNCITRAL)
is more restricted. This is not a minor issue. And it gets
worse if we look around us. Whereas in America we seem to
have a kind of complex (as I said earlier, in general this
topic has been addressed according to particular interests
or, at least, inconsistently) about dealing with topics on
the agenda of the fora with a so-called “universal”
vocation, the European Union is busy regulating all the
private international law issues you can imagine: contracts,
marital dissolution, insolvency, liability for damages,
notifications, etc., in an extraordinary process in which,
since the entry into force of the Treaty of Amsterdam (on
May 1, 1999), the European Union has assumed competency to
legislate on matters of international private law.
In fact, from a more general point of view, I think that at
the bottom of this whole issue there may be a problem of
perspective. I mean that, instead of posing the problem in
terms of “duplication of effort” or “compatibility or
incompatibility,” maybe it would be more appropriate to talk
about the contributions that the other codification fora
(mainly the Hague Conference, UNIDROIT, and UNCITRAL) can
make to inter-American codification, and about how CIDIP may
make the most of that work in drafting rules that best match
the region’s current needs. It is not at all difficult to
communicate with the aforementioned institutions. On the
contrary. A specific interlocutor could even be found in
each of them and/or a relevant contact person who would be
responsible for that link.
All of which makes it unacceptable to try and apply to CIDIP
the reasoning (much less the consequences thereof) that Omar
is said to have had to justify burning down the library at
Alexandria, which, transposed to the topic at hand, would
be: if the inter-American conventions contain the same
solutions as those of codifying agencies with a universal
outreach or mission, they are superfluous (and are therefore
to be burnt); if their solutions differ, then they are
“sacrilegious” and deviate from the true path of
international private law (and therefore deserve the same
fate).
*
These ideas have been further developed in my contribution
to the recently published Liber Amicorum Jürgen Samtleben.
[4]. Generally, we speak of the risk of duplicated efforts
when a subject proposed for codification in the CIDIP
context is already being addressed in preparatory studies
along the same lines by some forum of universal scope or
aim–or, even more so, when that forum already has an
approved text on the matter. |
