ORGANIZATION OF AMERICAN STATES
INTER-AMERICAN JURIDICAL COMMITTEE
61st
REGULAR SESSION OEA/Ser.Q/VI.33
August 5 to 30, 2002 CJI/doc.115/02
Rio de Janeiro, Brazil 30 August 2002
Original: Spanish
ANNUAL REPORT
OF THE INTER-AMERICAN JURIDICAL COMMITTEE
TO THE GENERAL ASSEMBLY
2002
ii
iii
EXPLANATORY NOTE
Up until 1990, the OAS General Secretariat had published the Minutes of
meeting and Annual reports of the Inter-American Juridical Committee under the
series classified as Reports and Recommendations. Starting in 1997, the
Secretariat for Legal Affairs of the OAS General Secretariat again started to
publish those documents, this time under the title Annual report of the InterAmerican
Juridical Committee to the General Assembly.
Under the Classification manual for the OAS official records series, the InterAmerican
Juridical Committee is assigned the classification code OEA/Ser.Q,
followed by CJI, to signify documents issued by this body, (see attached lists of
resolutions and documents).
iv
v
TABLE OF CONTENTS
Page
RESOLUTIONS APPROVED BY THE INTER-AMERICAN JURIDICAL COMMITTEE.............. vii
DOCUMENTS INCLUDED IN THIS ANNUAL REPORT..............................................................ix
INTRODUCTION.................................................................................................................................1
CHAPTER I .........................................................................................................................................5
1. The Inter-American Juridical Committee: its origin, legal bases, structure and
purposes ...................................................................................................................................7
2. Period covered in this Annual Report of the Inter-American Juridical Committee....................9
A. Sixtieth regular session .....................................................................................................9
B. Sixty-first regular session ................................................................................................10
CHAPTER II ......................................................................................................................................15
1. Inter-American Specialized Conference on Private International Law (CIDIP)...............19
2. Preparation of a draft Inter-American convention against racism and all forms
of discrimination and intolerance.....................................................................................61
3. Cartels and competition law in the Americas ..................................................................75
4. Improving the administration of justice in the Americas: access to justice .................. 101
5. Preparation for the commemoration of the centennial of the Inter-American
Juridical Committee...................................................................................................... 105
6. International Criminal Court: V Joint Meeting with the Legal Advisors of the
Ministries of Foreign Affairs of the OAS Member States.............................................. 109
7. Possible further measures to the Inter-American Convention against
Corruption (Caracas).................................................................................................... 117
8. Traffick of firearms based on the decisions taken by the Inter-American
Juridical Committee on the matter................................................................................ 121
9. Juridical aspects of hemispheric security..................................................................... 123
10. Right to information: access to and protection of information and personal data........ 123
11. Democracy in the Inter-American System.................................................................... 125
12. Inter-American cooperation against terrorism.............................................................. 127
13. Study of the system for the promotion and protection of human rights in the
inter-American sphere.................................................................................................. 127
14. Abduction of minors by one of their parents................................................................. 127
CHAPTER III .................................................................................................................................. 129
OTHER ACTIVITIES ...................................................................................................................... 131
Other activities carried out by the Inter-American Juridical Committee in 2002 ...................... 131
A. Presentation of the Annual report of the Inter-American Juridical Committee............. 131
B. Course on International Law ........................................................................................ 136
C. Relations and forms of cooperation with other inter-American organs and
entities and with like regional or world organizations................................................... 141
INDEXES........................................................................................................................................ 157
ONOMASTIC INDEX................................................................................................................. 159
SUBJECT INDEX...................................................................................................................... 161
vi
vii
RESOLUTIONS APPROVED BY THE
INTER-AMERICAN JURIDICAL COMMITTEE
CJI/RES.36 (LIX-O/01) AGENDA FOR THE 60TH
REGULAR SESSIONS OF THE
INTER-AMERICAN JURIDICAL COMMITTEE
(Rio de Janeiro, Brazil, February 25 to March 8, 2002) ..................... 9
CJI/RES.42 (LX-O/02) AGENDA FOR THE 61ST
REGULAR SESSION OF THE
INTER-AMERICAN JURIDICAL COMMITTEE
(Rio de Janeiro, Brazil, 5 - 30 August 2002) .................................... 12
CJI/RES.49 (LXI-O/02) AGENDA FOR THE 62ND
REGULAR SESSION OF THE
INTER-AMERICAN JURIDICAL COMMITTEE
(Rio de Janeiro, Brazil, 10 - 21 March 2003) ................................... 12
CJI/RES.44 (LXI-O/02) DATE AND PLACE OF THE 62nd
REGULAR SESSION OF
THE INTER-AMERICAN JURIDICAL COMMITTEE........................ 13
CJI/RES.47 (LXI-O/02) TRIBUTE TO AMBASSADOR ORLANDO R. REBAGLIATI............ 14
CJI/RES.48 (LXI-O/02) TRIBUTE TO AMBASSADOR SERGIO GONZÁLEZ GÁLVEZ....... 14
CJI/RES. 38 (LX-O/02) INTER-AMERICAN SPECIALIZED CONFERENCES ON
PRIVATE INTERNATIONAL LAW (CIDIPs).................................... 24
CJI/RES.50 (LXI-O/02) THE APPLICABLE LAW AND COMPETENCY OF
INTERNATIONAL JURISDICTION WITH RESPECT TO
EXTRACONTRACTUAL CIVIL LIABILITY....................................... 25
CJI/RES.39 (LX-O/02) ELABORATION OF A DRAFT INTER-AMERICAN
CONVENTION AGAINST RACISM AND ALL FORMS OF
DISCRIMINATION AND INTOLERANCE ........................................ 62
CJI/RES.45 (LXI-O/02) CARTELS IN THE SPHERE OF COMPETITION LAW IN THE
AMERICAS....................................................................................... 77
CJI/RES.40 (LX-O/02) IMPROVING THE ADMINISTRATION OF JUSTICE IN THE
AMERICAS: ACCESS TO JUSTICE..............................................102
CJI/RES.43 (LX-O/02) PREPARATION FOR THE COMMEMORATION OF THE
CENTENARY OF THE INTER-AMERICAN JURIDICAL
COMMITTEE..................................................................................106
CJI/RES.37 (LX-O/02) INTERNATIONAL CRIMINAL COURT...........................................111
CJI/RES.41 (LX-O/02) DEMOCRACY IN THE INTER-AMERICAN SYSTEM ...................125
CJI/RES.46 (LXI-O/02) 30th
COURSE ON INTERNATIONAL LAW....................................140
viii
ix
DOCUMENTS INCLUDED IN THIS ANNUAL REPORT
CJI/doc.84/02 HARMONIZATION OF LAWS CONCERNING ELECTRONIC
COMMERCE AND CROSS-BORDER INSOLVENCY
(presented by Dr. Carlos Manuel Vázquez) ..................................... 27
CJI/doc.89/02 SIXTH INTER-AMERICAN SPECIALIZED CONFERENCE ON
INTERNATIONAL PRIVATE LAW (CIDIP-VI).................................. 32
CJI/doc.97/02 RECOMMENDATIONS AND POSSIBLE SOLUTIONS
PROPOSED TO THE TOPIC RELATED TO THE LAW
APPLICABLE TO INTERNATIONAL JURISDICTIONAL
COMPETENCE WITH REGARD TO EXTRACONTRACTUAL
CIVIL RESPONSIBILITY
(presented by Dr. Ana Elizabeth Villalta Vizcarra) ........................... 34
CJI/doc.104/02 rev.2 THE DESIRABILITY OF PURSUING THE NEGOTIATION OF
AN INTER-AMERICAN INSTRUMENT ON CHOICE OF LAW
AND COMPETENCY OF INTERNATIONAL JURISDICTION
WITH RESPECT TO NON-CONTRACTUAL CIVIL LIABILITY:
A FRAMEWORK FOR ANALYSIS AND AGENDA FOR
RESEARCH
(presented by Dr. Carlos Manuel Vázquez) ..................................... 48
CJI/doc.80/02 rev. 3 corr.1 ELABORATION OF A DRAFT INTER-AMERICAN
CONVENTION AGAINST RACISM AND ALL FORMS OF
DISCRIMINATION AND INTOLERANCE Report of the InterAmerican
Juridical Committee
(rapporteur: Dr. Felipe H. Paolillo).................................................... 63
CJI/doc.102/02 CARTELS AND COMPETITION LAW IN THE AMERICAS:
HARD CORE AND EXPORT CARTELS
(presented by Dr. Jonathan T. Fried) ............................................... 77
CJI/doc.106/02 CARTELS IN THE SPHERE OF COMPETITION LAW IN THE
AMERICAS
(presented by Dr. Joo Grandino Rodas.......................................... 83
CJI/doc.113/02 rev.3 INTER-AMERICAN JURIDICAL COMMITTEE
QUESTIONNAIRE ON COMPETITION POLICY AND
CARTELS......................................................................................... 99
CJI/doc.82/02 rev.1 REFLECTIONS ON THE FUTURE OF THE INTERNATIONAL
CRIMINAL COURT
(presented by Dr. Sergio Gonzálvez Gálvez).................................112
CJI/doc.98/02 EFFECTS OF THE LINK BETWEEN THE INTERNATIONAL
CRIMINAL COURT AND THE SECURITY COUNCIL OF THE
UNITED NATIONS, ACCORDING TO ARTICLE 16 OF THE
STATUTE OF THE INTERNATIONAL CRIMINAL COURT
(presented by Dr. Sergio González Gálvez)...................................115
CJI/doc.81/02 POSSIBLE FURTHER MEASURES TO THE INTERAMERICAN
CONVENTION AGAINST CORRUPTION
(presented by Dr. Sergio González Gálvez)...................................118
CJI/doc.86/02 rev.1 ARMAMENTISM: BASED ON THE DECISIONS TAKEN BY
THE INTER-AMERICAN JURIDICAL COMMITTEE
(presented by Dr. Sergio González Gálvez)...................................122
x
CJI/doc.100/02 rev.1 REPORT BY THE VICE-CHAIRMAN OF THE INTERAMERICAN
JURIDICAL COMMITTEE ON THE 32ND
SESSION OF THE OAS GENERAL ASSEMBLY
(Bridgetown, Barbados, June 2-5, 2002)
(presented by Dr. Brynmor T. Pollard) ...........................................132
CJI/doc.96/02 REPORT BY THE OBSERVER OF THE INTER-AMERICAN
JURIDICAL COMMITTEE TO THE 54th
SESSION OF THE
INTERNATIONAL LAW COMMISSION
(Geneva, June 5-6, 2002) ..............................................................141
CJI/doc.99/02 REPORT BY THE OBSERVER OF THE INTER-AMERICAN
JURIDICAL COMMITTEE ON THE FOURTH MEETING OF
MINISTERS OF JUSTICE OR OF MINISTERS OR
ATTORNEYS-GENERAL OF THE ORGANIZATION OF
AMERICAN STATES (IV REMJA)
(Port-of-Spain, Trinidad, March 10-13, 2002)
(presented by Dr. Brynmor T. Pollard) ...........................................149
1
INTRODUCTION
2
3
The Inter-American Juridical Committee is honored to present its Annual report to
the General Assembly of the Organization of American States. This report concerns the
activities the Committee carried out in 2002, and is submitted pursuant to the provisions of
Article 91.f of the Charter of the Organization of American States, Article 13 of the
Committee's Statutes and in accordance with instructions contained in General Assembly
resolutions AG/RES.1452 (XXVII-O/97), AG/RES.1669 (XXIX-O/99), AG/RES.1735 (XXXO/00),
AG/RES.1787 (XXXI-O/01) and AG/RES.1883 (XXXII-O/02), all of which concern
the preparation of the annual reports submitted by the Organization's organs, agencies
and entities to the General Assembly.
During the period covered in this Annual report, the Inter-American Juridical
Committee's agenda included such topics as the following: the Inter-American
Specialized Conference on Private International Law (CIDIP); elaboration of an interAmerican
draft convention on racism and all forms of discrimination and intolerance;
juridical dimension of integration and international trade: competition law in the
Americas; cartels in the sphere of competition law in the Americas; improving the
administration of justice in the Americas: access to justice; preparing for the
commemoration of the centenary of the Inter-American Juridical Committee; the
International Criminal Court and the Fifth Joint Meeting with Legal Advisors of the
Ministries of Foreign Affairs of the Member States of the OAS; possible additional
measures to implement the Inter-American Convention against Corruption (Caracas);
trafficking of firearms based on the decisions taken by the Inter-American Juridical
Committee on the matter; the juridical aspects of hemispheric security; the right to
information: access to and protection of personal information and data; democracy in the
inter-American system; inter-American cooperation against terrorism; study of the
system for the promotion and protection of human rights in the inter-American system;
and the international abduction of minors by one of their parents.
This Annual report mainly contains the work done on the studies associated with the
above-cited topics and consists of three chapters. The first discusses the origin, legal
bases and structure of the Inter-American Juridical Committee and the period covered in
this Annual report. The second chapter elaborates upon the issues that the InterAmerican
Juridical Committee discussed at the 2002 sessions, and the texts of the
resolutions approved at both, and the related documents. Lastly, the third chapter
concerns the Juridical Committee's other activities in 2002 and the other resolutions it
adopted. Budgetary matters are also discussed. Appended to the Annual report are lists
of the resolutions and documents adopted, subject and onomastic indexes, to facilitate the
reader in locating documents in this Report.
The Chairman of the Inter-American Juridical Committee, Dr. Brynmor Thornton
Pollard, approved the language of this Annual report.
4
5
CHAPTER I
6
7
1. The Inter-American Juridical Committee: its origin, legal bases, structure and
purposes
The first forerunner of the Inter-American Juridical Committee was the International
Commission of Jurists in Rio de Janeiro, created by the Third International Conference of
American States in 1906. Its first meeting was in 1912, although the most important was in
1927. There, it approved twelve draft conventions on public international law and the
Bustamante Code in the field of private international law.
Then, in 1933, the Seventh International Conference of American States, held in
Montevideo, created the national commissions on codification of international law and the
Inter-American Committee of Experts. The latter's first meeting was in Washington, D.C.,
in April 1937.
The First Meeting of Consultation of Ministers of Foreign Affairs of the American
Republics, held in Panama, September 26 through October 3, 1939, established the InterAmerican
Neutrality Committee, which was active for more than two years. Then, in 1942,
the Third Meeting of Consultation of Ministers of Foreign Affairs, held in Rio de Janeiro,
adopted resolution XXVI, wherein it transformed the Inter-American Neutrality Committee
into the Inter-American Juridical Committee. It was decided that the seat of the Committee
would be in Rio de Janeiro.
In 1948, the Ninth International Conference of American States, convened in
Bogotá, adopted the Charter of the Organization of American States which, inter alia,
created the Inter-American Council of Jurists, with one representative for each Member
State, with advisory functions and the goal to promote legal issues within the OAS. Its
permanent committee would be the Inter-American Juridical Committee, composed of
nine jurists from the member States. It enjoyed broad technical autonomy in undertaking
the studies and preparatory work that certain organs of the Organization entrusted to it.
Almost twenty years later, in 1967, the Third Special Inter-American Conference,
convened in Buenos Aires, Argentina, adopted the Protocol of amendments to the Charter
of the Organization of American States or Protocol of Buenos Aires, which eliminated the
Inter-American Council of Jurists. The latter's functions passed to the Inter-American
Juridical Committee. With that, the Committee was elevated to one of the principal organs
of the OAS.
Under Article 99 of the Charter, the purpose of the Inter-American Juridical
Committee is as follows:
... to serve the Organization as an advisory body on juridical matters; to promote the
progressive development and the codification of international law; and to study juridical
problems related to the integration of the developing countries of the Hemisphere and, insofar
as may appear desirable, the possibility of attaining uniformity in their legislation.
Under Article 100 of the Charter, the Inter-American Juridical Committee is to:
...undertake the studies and preparatory work assigned to it by the General Assembly,
the Meeting of Consultation of Ministers of Foreign Affairs, or the Councils of the Organization.
It may also, on its own initiative, undertake such studies and preparatory work as it considers
advisable, and suggest the holding of specialized juridical conferences.
8
Although the seat of the Committee is in Rio de Janeiro, in special cases it may
meet at any other place that may be designated after consulting the Member State
concerned. The Committee is composed of eleven jurists who are nationals of the
Member States of the Organization. Together, those jurists represent all the States. The
Committee also enjoys the fullest possible technical autonomy.
9
2. Period covered in this Annual Report of the Inter-American Juridical Committee
A. Sixtieth regular session
The LX regular session of the Inter-American Juridical Committee was held at its
seat in Rio de Janeiro, Brazil, February 25 to March 8, 2002.
The members of the Inter-American Juridical Committee present for that session
were as follows, listed in the order determined by the lots drawn at the session's first
meeting and in accordance with Article 28(b) of the Committee's Rules of Procedure:
Felipe Paolillo
Brynmor T. Pollard (Vice Chairman)
Sergio González Gálvez
Ana Elizabeth Villalta Vizcarra
Carlos Manuel Vázquez
Kenneth O. Rattray
Joo Grandino Rodas (Chairman)
Orlando R. Rebagliati
Eduardo Vío Grossi
Dr. Luis Herrera Marcano and Dr. Jonathan T. Fried were unable to attend the
session.
Representing the OAS General Secretariat, the following provided technical and
administrative support: Enrique Lagos, Assistant Secretary for Legal Affairs; Jean-Michel
Arrighi, Director of the Department of International Law; and Manoel Tolomei Moletta
and Dante M. Negro, legal officers with the Department of International Law.
The Chairman of the Inter-American Juridical Committee extended a special
welcome to Dr. Ana Elizabeth Villalta Vizcarra, whom the OAS General Assembly had
elected to a four-year term on the Committee at its thirty-first regular session, in San
José, Costa Rica, in June 2001.
The Inter-American Juridical Committee's agenda for this session was the one
adopted in resolution CJI/RES.36 (LIX-O/01), specifically:
CJI/RES.36 (LIX-O/01)
AGENDA FOR THE
60TH
REGULAR SESSIONS OF THE
INTER-AMERICAN JURIDICAL COMMITTEE
(Rio de Janeiro, Brazil, February 25 to March 8, 2002)
A. Current topics
1 Drafting of an Inter-American Convention against racism and any kind of
discrimination and intolerance
Rapporteur: Dr. Felipe Paolillo
2. Possible additional measures to the Caracas Inter-American Convention against
Corruption
Rapporteur: Dr. Sergio González Gálvez
10
3. Preparation for the celebration of the Inter-American Juridical Committee
centennial
Rapporteur: Dr. Eduardo Vío Grossi
4. Specialized Inter-American Conference on Private International Law (CIDIP)
Rapporteurs: Drs. Brynmor T. Pollard, Joo Grandino Rodas and Carlos
Manuel Vázquez
B. Topics under preparation
1. Possibilities and problems of the statutes of the International Criminal Court
Rapporteur: Dr. Sergio González Gálvez
2. Trafficking of firearms based on the decisions taken by the Inter-American
Juridical Committee on the matter
Rapporteur: Dr. Sergio González Gálvez
3. Juridical dimension of integration and international trade: competition law in the
Americas
Rapporteurs: Drs. Jonathan T. Fried and Joo Grandino Rodas
C. Topics under follow-up
1. Juridical aspects of hemispheric security
Rapporteurs: Drs. Sergio González Gálvez and Eduardo Vío Grossi
2. Right to information: access to and protection of information and personal data
Rapporteur: Dr. Jonathan T. Fried
3. Democracy in the inter-American system
Rapporteur: Dr. Eduardo Vío Grossi
4. Inter-American cooperation against terrorism
Rapporteur: Dr. Luis Herrera Marcano
5. Study of the system for the promotion and protection of human rights in the
inter-American system
Rapporteur:
6. International abduction of minors by one of their parents
Rapporteur: Dr. Joo Grandino Rodas
7. Improving the administration of justice in the Americas: access to justice
Rapporteurs: Drs. Jonathan T. Fried and Brynmor T. Pollard
This resolution was unanimously adopted at the session held on 17 August 2001, in
the presence of the following members: Drs. Sergio González Gálvez, Eduardo Vío Grossi,
Orlando R. Rebagliati, Brynmor Thornton Pollard, Luis Herrera Marcano, Gerardo Trejos
Salas, Carlos Manuel Vázquez and Joo Grandino Rodas.
Pursuant to Article 12 of the Rules of procedure of the Inter-American Juridical
Committee, the Chairman of the Juridical Committee submitted his report on the
activities carried out during the recess.
B. Sixty-first regular session
The LXI regular session of the Inter-American Juridical Committee was held at its
seat in Rio de Janeiro, August 5 through 30, 2002.
The following members of the Inter-American Juridical Committee were present for
that regular session, listed in the order of precedence established by lot at the first
meeting, pursuant to Article 28(b) of the Rules of Procedure of the Inter-American
Juridical Committee:
11
Brynmor T. Pollard (Vice-Chairman)
Jonathan T. Fried
Luis Herrera Marcano
Orlando R. Rebagliati
Joo Grandino Rodas (Chairman)
Felipe Paolillo
Ana Elizabeth Villalta Vizcarra
Kenneth O. Rattray
Carlos Manuel Vázquez
Sergio González Gálvez
Dr. Eduardo Vío Grossi was unable to attend this session.
Representing the OAS General Secretariat and providing technical and
administrative support were Dr. Enrique Lagos, Assistant Secretary for Legal Affairs; Dr.
Jean-Michel Arrighi, Director of the Department of International Law; and Manoel
Tolomei Moletta and Dante M. Negro, Legal Officers with the Department of
International Law.
In accordance with Article 12 of the Committee's Rules of procedure, the Chairman
of the Inter-American Juridical Committee presented his report on the activities
conducted during the Committee's recess.
The Chairman of the Committee also reported that at its thirty-second regular
session (Bridgetown, Barbados, June 2002), the OAS General Assembly had elected
Dr. Luis Marchand Stens of Peru and Dr. Alonso Gómez Robledo Verduzco of Mexico to
membership of the Inter-American Juridical Committee. It also re-elected Dr. Joo
Grandino Rodas of Brazil. Those members will begin their 4-year terms of office on
January 1, 2003.
The Chairman also reported that on February 12, 2002, the Permanent
Representative of Brazil to the OAS sent a letter to the Secretary General of the
Organization to advise him of the Brazilian Governmenťs intention to provide the InterAmerican
Juridical Committee with office space in Palacio Itamaraty in Rio de Janeiro.
The governmenťs gesture was in recognition of the work of the Committee and with a
view to releasing funds that could be allocated toward other purposes. This would
enable the Committee to continue to meet the costs of a number of its activities,
including the Course on International Law. The Chairman of the Committee informed the
other members that the Secretary General had brought the communication to his
attention on April 30, 2002, and was awaiting any comments that the Committee might
wish to make. The Chairman reported that on May 8, he had sent the Secretary General
a reply in which he informed the Secretary General that he had visited the premises. He
informed the Secretary General that he and the other members of the Committee had
arrived at a consensus, that the Committee was very much interested in relocating to the
facilities offered by the Government of Brazil. The Committee requested the Secretary
Generaľs good offices in conveying its acceptance of the offer at his earliest possible
convenience. The Chairman also reported that as of that date, the agreement
formalizing the move to the Itamaraty facilities was in the final stages of negotiation and
would be signed soon.
12
During its LXI regular session, the Inter-American Juridical Committee adopted the
following agenda in resolution CJI/RES.42 (LX-O/02):
CJI/RES.42 (LX-O/02)
AGENDA FOR THE
61ST
REGULAR SESSION OF THE
INTER-AMERICAN JURIDICAL COMMITTEE
(Rio de Janeiro, Brazil, 5 - 30 August 2002)
A. Current topics
1. Extra-contractual responsibility ­ CIDIP-VII
Rapporteurs: Drs. Carlos Manuel Vázquez and Ana Elizabeth Villalta Vizcarra
2. Cartels in the sphere of competition law in the Americas
Rapporteurs: Drs. Jonathan T. Fried and Joo Grandino Rodas
3. Improving the administration of justice in the Americas: access to justice
Rapporteurs: Drs. Jonathan T. Fried and Brynmor T. Pollard
B. Topics under follow-up
1. International Criminal Court ­ 5th
Joint Meeting with the Legal Advisors of the
Ministries of Foreign Affairs of the Member States of the OAS
Rapporteur: Dr. Sergio González Gálvez
2. Preparation for the commemoration of the centenary of the Inter-American
Juridical Committee
Rapporteur: Dr. Eduardo Vío Grossi
This resolution was unanimously adopted at the session held on 8 March 2002, in the
presence of the following members: Drs. Felipe Paolillo, Brynmor Thornton Pollard, Ana
Elizabeth Villalta Vizcarra, Carlos Manuel Vázquez, Kenneth O. Rattray, Joo Grandino
Rodas and Eduardo Vío Grossi.
At this regular session, the Inter-American Juridical Committee also approved its
agenda for the LXII regular session, which appears in resolution CJI/RES.49 (LXI-O/02),
Agenda for the 62nd
regular session of the Inter-American Juridical Committee. In
resolution CJI/RES.44 (LXI-O/02), Date and place of the 62nd regular session of the InterAmerican
Juridical Committee, the Committee decided to hold that session at its seat in
Rio de Janeiro, March 10 through 21, 2003.
CJI/RES.49 (LXI-O/02)
AGENDA FOR THE
62ND
REGULAR SESSION OF THE
INTER-AMERICAN JURIDICAL COMMITTEE
(Rio de Janeiro, Brazil, 10 - 21 March 2003)
A. Current topics
1. Seventh Inter-American Specialized Conference on Private International Law ­
CIDIP-VII [AG/RES.1844 (XXXII-O/02) y AG/RES.1846 (XXXII-O/02)]
Rapporteurs: Drs. Carlos Manuel Vázquez and Ana Elizabeth Villalta Vizcarra
13
2. Applicable Law and Competency of International Jurisdiction with Respect to
Extracontractual Civil Liability [CP/RES.815 (1318/02) y CIDIP-VI/RES.7/02]
Rapporteurs: Drs. Carlos Manuel Vázquez and Ana Elizabeth Villalta Vizcarra
3. Cartels in the sphere of competition law in the Americas [AG/RES.1844 (XXXII-
O/02)]
Rapporteurs: Drs. Jonathan T. Fried and Joo Grandino Rodas
4. Improving the administration of justice in the Americas: access to justice
[AG/RES.1844 (XXXII-O/02)]
Rapporteurs: Drs. Jonathan T. Fried, Brynmor T. Pollard and Ana Elizabeth
Villalta Vizcarra
5. Fifth Joint Meeting with the Legal Advisors of the Ministries of Foreign Affairs of
the Member States of the OAS - International Criminal Court
[AG/RES.1844 (XXXII-O/02) y AG/RES.1900 (XXXII-O/02)]
Rapporteur: Dr. Kenneth O. Rattray
B. Follow-up topics
1. Preparation for the commemoration of the centenary of the Inter-American
Juridical Committee [AG/RES.1844 (XXXII-O/02)]
Rapporteurs: Dr. Eduardo Vío Grossi, Luis Herrera Marcano and Joo Grandino
Rodas
This resolution was unanimously adopted at the session held on 22 August 2002, in
the presence of the following members: Drs. Brynmor Thornton Pollard, Orlando R.
Rebagliati, Felipe Paolillo, Ana Elizabeth Villalta Vizcarra, Kenneth O. Rattray, Carlos
Manuel Vázquez and Sergio González Gálvez.
CJI/RES.44 (LXI-O/02)
DATE AND PLACE OF THE 62nd
REGULAR SESSION OF THE
INTER-AMERICAN JURIDICAL COMMITTEE
THE INTER-AMERICAN JURIDICAL COMMITTEE,
WHEREAS article 15 of its Statutes establishes that two regular sessions be held
annually,
RESOLVES to hold its 62nd
regular session at the headquarters of the Inter-American
Juridical Committee in Rio de Janeiro, Brazil, from March 10 to 21, 2003.
This resolution was unanimously adopted at the session held on 16 August 2002, in
the presence of the following members: Drs. Brynmor T. Pollard, Jonathan T. Fried, Orlando
R. Rebagliati, Joo Grandino Rodas, Felipe Paolillo, Ana Elizabeth Villalta Vizcarra, Carlos
Manuel Vázquez and Sergio González Gálvez.
In accordance with Article 10 of the Statutes of the Inter-American Juridical
Committee, the Chairman and Vice Chairman of the Committee were elected at this
regular session. Dr. Brynmor T. Pollard was elected Chairman of the Committee, and Dr.
Carlos Manuel Vázquez was elected Vice Chairman.
The Juridical Committee also adopted resolutions CJI/RES.47 (LXI-O/02), Tribute
to Ambassador Orlando R. Rebagliati, and CJI/RES.48 (LXI-O/02), Tribute to
Ambassador Sergio González Gálvez. Both members would be completing their terms
with the Inter-American Juridical Committee on December 31, 2002.
14
CJI/RES.47 (LXI-O/02)
TRIBUTE TO AMBASSADOR ORLANDO R. REBAGLIATI
THE INTER-AMERICAN JURIDICAL COMMITTEE,
CONSIDERING that the term of office of Ambassador Orlando R. Rebagliati as a
member of the Inter-American Juridical Committee will end on December 31, 2002;
AWARE of the sterling contribution made by Ambassador Orlando R. Rebagliati in
accomplishing the work of the Committee and maintaining its noble traditions;
REAFFIRMING the recognition by the members of the Committee of the particular
attributes of Ambassador Orlando R. Rebagliati while serving as a member of the
Committee,
RESOLVES:
1. To express its deep appreciation of the contributions made by Ambassador
Orlando R. Rebagliati in advancing the work of the Juridical Committee and maintaining its
stature in the Inter-American System.
2. To record, in particular, the Committee's gratitude to Ambassador Orlando R.
Rebagliati for his unfailing support as lecturer in the Course on International Law conducted
annually under the auspices of the Committee and also in preserving its high academic
standards.
3. To convey this resolution to Ambassador Orlando R. Rebagliati and to the organs
of the Organization.
This resolution was unanimously adopted at the session held on 21 August 2002, in
the presence of the following members: Drs. Brynmor T. Pollard, Joo Grandino Rodas,
Felipe Paolillo, Ana Elizabeth Villalta Vizcarra, Kenneth O. Rattray, Carlos Manuel Vázquez
and Sergio González Gálvez.
CJI/RES.48 (LXI-O/02)
TRIBUTE TO AMBASSADOR SERGIO GONZÁLEZ GÁLVEZ
THE INTER-AMERICAN JURIDICAL COMMITTEE,
CONSIDERING that the term of office of Ambassador Sergio González Gálvez as a
member of the Inter-American Juridical Committee will expire on December 31, 2002;
RECOGNIZING the valuable contribution made by him in enhancing the work of the
Committee and its stature within and outside the Organization of American States;
ACKNOWLEDGING the high regard and esteem in which he is held by his colleagues
on the Committee:
RESOLVES:
1. To record its acknowledgement of the invaluable contributions made by
Ambassador Sergio González Gálvez to the work and stature of the Inter-American Juridical
Committee.
2. To express the Committee's appreciation, in particular, of the consistent
participation of Ambassador Sergio González Gálvez as lecturer in the Course on
International Law conducted annually under the auspices of the Committee and also of his
contribution to the success of its academic role.
3. To convey this resolution to Ambassador Sergio González Gálvez and to the
organs of the Organization.
This resolution was unanimously adopted at the session held on 21 August 2002, in
the presence of the following members: Drs. Brynmor T. Pollard, Orlando R. Rebagliati, Joo
Grandino Rodas, Felipe Paolillo, Ana Elizabeth Villalta Vizcarra, Kenneth O. Rattray and
Carlos Manuel Vázquez.'
15
CHAPTER II
16
17
ISSUES DISCUSSED BY THE
INTER-AMERICAN JURIDICAL COMMITTEE
AT THE REGULAR SESSIONS HELD IN 2002
The Inter-American Juridical Committee held two regular sessions in 2002, both at
its seat in Rio de Janeiro. The first was in February-March, and the second in August. At
both meetings, the following topics figured on the Committee's agenda: the InterAmerican
Specialized Conference on Private International Law (CIDIP); preparation of a
draft Inter-American Convention against racism and all forms of discrimination and
intolerance; cartels under competition law in the Americas; improving the administration
of justice in the Americas: access to justice; preparations for the commemoration of the
centenary of the Inter-American Juridical Committee; the International Criminal Court
and the V Joint Meeting with the Legal Advisors of the Ministries of Foreign Affairs of the
OAS Member States; possible additional measures to the Inter-American Convention
against Corruption (Caracas); trafficking of firearms based on the decisions taken by the
Inter-American Juridical Committee on the matter; legal aspects of hemispheric security;
right of information: access to and protection of information and personal data;
democracy in the inter-American system; inter-American cooperation against terrorism;
study of the system for the promotion and protection of human rights in the interAmerican
system, and abduction of minors by one of their parents.
A description of each of these topics follows. Where appropriate, the documents
prepared and approved by the Inter-American Juridical Committee on the subject matter
are included.
18
19
1. Inter-American Specialized Conference on Private International Law (CIDIP)
Resolutions
CJI/RES.38 (LX-O/02): Inter-American Specialized Conferences on Private International
Law (CIDIPs)
CJI/RES.50 (LXI-O/02): The applicable law and competency of international jurisdiction
with respect to extracontractual civil liability
Documents
CJI/doc.84/02: Harmonization of laws concerning electronic commerce and crossborder
insolvency
(presented by Dr. Carlos Manuel Vázquez)
CJI/doc.89/02: Sixth Inter-American Specialized Conference on Private
International Law (CIDIP-VI)
(presented by Drs. Carlos Manuel Vázquez and Joo Grandino
Rodas)
CJI/doc.97/02: Recommendations and possible solutions proposed to the topic
related to the law applicable to international jurisdictional
competence with respect to extracontractual civil responsibility
(presented by Dr. Ana Elizabeth Villalta Vizcarra)
CJI/doc.104/02 rev.2: The desirability of pursuing the negotiation of an inter-American
instrument on choice of law and competency of international
jurisdiction with respect to non-contractual civil liability: a
framework ofr analysis and agenda for research
(presented by Dr. Carlos Manuel Vázquez)
At the Inter-American Juridical Committee's LX regular session (Rio de Janeiro,
February-March 2002), Dr. Carlos Manuel Vázquez, rapporteur for the topic, presented
documents CJI/doc.89/02, Sixth Inter-American Specialized Conference on Private
International Law (CIDIP-VI), co-authored with Dr. Joo Grandino Rodas, and
CJI/doc.84/02, Harmonization of laws concerning electronic commerce and cross-border
insolvency. The Sixth Inter-American Specialized Conference on Private International
Law (CIDIP-VI) was held in Washington, D.C., February 4 to 8, 2002, prior to the LX
regular session of the CJI.
At that session, Dr. Carlos Manuel Vázquez made reference to document
CJI/doc.74/01 rev.1, CIDIP-VII and beyond, which was the report that both he and Dr.
Joo Grandino Rodas presented at CIDIP-VI. He summarized the proceedings of CIDIPVI,
and introduced the other Committee members to the content of the CIDIP-VI
resolutions, especially the one in which it resolved to pursue the CIDIP process as a
suitable forum for the development and codification of private international law in the
hemisphere. In that resolution, CIDIP-VI asked that the General Secretariat, by way of
the Secretariat for Legal Affairs, organize a meeting of experts to examine CIDIP's future
and the future issues that CIDIP-VII might consider.
The rapporteur pointed out that three of the topics that the Inter-American
Juridical Committee had suggested were included on the list of topics on which
deliberations will continue until their eventual inclusion on the agenda of the CIDIP-VII,
namely, transborder movements and migratory flows of persons, cross-border business
20
insolvency, and electronic commerce. The other topics, he pointed out, concern
development of an inter-American computer-based registry system; transport;
investment securities; international legal rights for the transferability of tangible and
intangible goods in international trade, and international protection of adult persons
whose personal faculties are impaired.
In connection with the three topics that CIDIP-VI addressed, the rapporteur
reported that the Model Inter-American Law on Secured Transactions and the negotiable
and non-negotiable inter-American uniform bill of lading for the international carriage of
goods by road were adopted.
Dr. Vázquez also mentioned the resolution that the Conference had adopted
applauding the work of the Inter-American Juridical Committee.
In light of what transpired during CIDIP-VI, Dr. Joo Grandino Rodas observed
that more common law countries should participate in the process, especially the
Caribbean countries.
Dr. Ana Villalta said that CIDIP needed to be promoted more within the
Organization, precisely in view of what little had been done to publicize these topics.
She suggested that a lack of understanding about the way model laws function could be
one reason why more countries from Central America and the Caribbean did not take
part in the process that had just concluded.
Dr. Brynmor T. Pollard was interested in the new process whereby model laws
were produced within CIDIP. He also noted that the shift away from inter-American
conventions in favor of model laws was perhaps because governments found model
laws to be more advantageous. Dr. Vázquez observed that there might be other reasons
for the shift, such as the certainty so essential in areas like international trade. He noted
that at CIDIP the sense was that the modality adopted should be dictated by the needs
of the issue at hand.
Dr. Kenneth O. Rattray observed that the important thing now was to decide on
CIDIP's future, both as regards procedure and substance. He noted that one problem
encountered was a certain indifference on the part of some countries to the process in
general. Dr. Rattray added that the traditional approach might not be the most prudent
one at the present time. He suggested that one or two topics might be selected for a
kind of pilot experiment. One might be the issue of electronic commerce. A number of
approaches could be tested. This, he said, would obviate one of the basic problems with
the entire process, namely that too many issues were on the agenda at any given time.
During this regular session, the Inter-American Juridical Committee decided to
designate Dr. Ana Villalta as co-rapporteur for the topic, and adopted resolution
CJI/RES.38 (LX-O/02), Inter-American Specialized Conferences on Private International
Law (CIDIPs). In that resolution, the Inter-American Juridical Committee was pleased to
receive CIDIP-VI/RES.2/02, which praised the work done by the Inter-American Juridical
Committee on the subject matter; and took note of and expressed its appreciation for the
report presented by the Inter-American Juridical Committee's observers at the Sixth
Inter-American Specialized Conference on Private International Law (CIDIP-VI), Dr.
Joo Grandino Rodas and Carlos Manuel Vázquez (CJI/doc.74/01 rev.1, CIDIP VII and
beyond). In that same resolution, the Committee underscored its readiness to cooperate
in the studies on the "Applicable law and competency of international jurisdiction with
21
respect to extracontractual civil liability," in the preparations for the Seventh InterAmerican
Specialized Conference on Private International Law, as provided in
resolutions CIDIP-VI/RES.1/02, Request for the General Assembly to convoke the
Seventh Inter-American Specialized Conference on Private International Law (CIDIPVII),
and CIDIP-VI/RES.2/02, Recognition of the work of the Inter-American Juridical
Committee, and in whatever other way the General Assembly should dispose.
On May 2, 2002, the Chair of the Permanent Council sent a letter to the Chairman
of the Inter-American Juridical Committee informing him that at its meeting of May 1,
2002, the Council had adopted a resolution titled Assignment to the Inter-American
Juridical Committee of the CIDIP topic regarding the applicable law and competency of
international jurisdiction with respect to extracontractual civil liability. The resolution in
question, which was CP/RES.815 (1318/02), was appended to the note.
Later, at its thirty-second regular session (Barbados, June 2002), through
resolutions AG/RES.1844 and 1846 (XXXII-O/02), the General Assembly requested the
Inter-American Juridical Committee to continue to assist with the preparatory work for
the next CIDIP. It instructed the Committee, working with the General Secretariat, to
support the consultations among governmental and nongovernmental experts and to
prepare the reports, recommendations and other materials necessary for the
consultations to conclude.
During the LXI regular session of the Inter-American Juridical Committee (Rio de
Janeiro, August 2002), Dr. Ana Elizabeth Villalta Vizcarra, rapporteur for the topic,
introduced the document CJI/doc.97/02, Recommendations and possible solutions
proposed to the topic relating to the law applicable to international jurisdictional
competence with respect to extracontractual civil responsibility. She observed that the
topic was quite complex because of the many points of connection that it involved. She
then described the content of her report, stating that it began with a description of the
mandate entrusted to the Inter-American Juridical Committee. Her report described the
theoretical aspects of the issue, drawing a distinction between contractual and
extracontractual civil liability. She observed that extracontractual civil liability was in the
realm of international private law because the injured parties were private persons. The
rapporteur mentioned the traditional solutions and the current solutions, in other words,
the determination of the applicable law and the competent jurisdiction. These, she said,
could be examined separately, although experts made the point that the two were
intimately related. Dr. Villalta outlined the principles of law most often used in connection
with the applicable law, which are lex fori (the applicable law being the law of the court
hearing the matter, although this criterion was not often used); the principle of lex
domicilii (which was problematic when a tort committed in one State had effects or
damages in another state; the nexus that might eventually prove to be the more
important one could be ignored as a result). For these traditional criteria, with very rigid
nexus points, Dr. Villalta outlined three methods, applied for the most part in U.S. law:
the principle of proximity; the unilateralist attempt to determine the scope of material
rules as a function of state interests, and the teleological attempt to achieve desirable
outcomes in the resolution of problems caused by external factors. In general, she
stated, the tendency was to opt for the "center of gravity" criterion, which was to favor
the law of the place that had the most substantive nexus to the cause of action. She
cited various examples from a number of international legal instruments, where solutions
22
of this type had been adopted, with the result that less emphasis was placed on the
more traditional nexus criteria. Dr. Villalta observed that the classic criteria need to be
made more flexible, so as to include multiple alternatives, to give the judge more criteria
to use to decide a case, criteria not anticipated at the time the law was passed.
As for the competency of international jurisdiction, she indicated that criteria could
be established to enable the victim to choose the most advantageous course of action,
choosing the jurisdiction that best suits his/her purposes.
Finally, she recommended that a convention be adopted on the subject of
extracontractual civil liability in general, leaving the most specific issue of cross-border
business insolvency for later. The new convention should take into account the criteria of
the Hague Conventions and U.S. law, which give the court more scope in establishing
the nexuses. She also noted that any such convention should regulate everything
related to damages and establish modern criteria of indemnification.
Dr. Carlos Manuel Vázquez, rapporteur for the topic, said that his conclusions on
the subject were somewhat different from those of Dr. Villalta. He observed that his
principal difference of opinion was that in his view it was too soon to determine whether
a convention on the subject was needed and, if so, whether one could recommend that
only some of the discussion points be included. He also said that a model law might be a
second alternative. Dr. Vázquez noted that whereas the Permanent Counciľs resolution
was not very specific as to how much time the Juridical Committee could take to discuss
this issue, 2004 was the date mentioned at CIDIP-VI.
Then Dr. Vázquez summarized the points covered in his document, titled The
desirability of pursuing the negotiation of an inter-American instrument on choice of law
and competency of international jurisdiction with respect to non-contractual civil liability:
a framework for analysis and agenda for research, CJI/doc.104/02 rev.2.
One of the central points he raised in his document was the expense created by
the lack of uniformity among the jurisdictions and the methods for choosing the
applicable law. He therefore suggested that the hemisphere would be well served to
have a uniform approach where these matters were concerned. Dr. Vázquez also
mentioned that a key problem was the appropriation of resources within the OAS
budget, as the process of arriving at an agreement on such a convention would not be a
zero-cost undertaking. The rapporteur pointed out that the Inter-American Juridical
Committee first had to answer some basic questions: how serious was the problem,
given the many approaches taken to its solution; the resources appropriated to do the
task; the chances that the problem might be resolved in other venues, and finally,
whether a satisfactory solution could even be found at the inter-American level.
The rapporteur pointed out that one possible way to solve these problems was to
examine certain aspects relative to the types of situations that might be classified as
questions of extracontractual liability, choice of applicable law and competent
jurisdiction. If after examining these issues the conclusion was that some type of
instrument needed to be adopted, then ­the rapporteur said- the next consideration was
what type of choice-of-law and jurisdiction rules were needed. In other words, should the
method be one that fosters some degree of predictability or should it be something more
flexible? Dr. Vázquez also said that the Inter-American Juridical Committee should look
into the question of what would be the best vehicle for these rules, a convention or a
23
model law. This, he said, would depend on which of these vehicles offered some type of
advantage.
One of the issues that the rapporteur addressed was the degree of difference
separating the various choice-of-law approaches used in the hemisphere in matters
involving extracontractual liability. Dr. Vázquez noted that given the many approaches, a
study was needed to compile that information. In the case of some countries, the study
would also have to examine the laws of a State's provinces or federated units. The
research would also have to examine the extent to which a State's choice-of-law varied
with the various types of extracontractual civil liability. He observed that a research
project of this kind would require extensive resources and that the General Secretariaťs
assistance would be essential. He also noted that the Permanent Counciľs resolution
seemed to be requesting the Juridical Committee to identify which subsets could best be
addressed through an instrument.
Dr. Joo Grandino Rodas, too, referred to the language of the Permanent Counciľs
mandate and said that the reason for it was a problem that arose during CIDIP-VI on this
very subject. He recalled that what was requested was a basic paper capturing a variety
of views and as broad as possible, which the States could then use to map their plans.
He said that the rapporteurs' papers complemented each other because each had
considered the problem from his/her own perspective (common law and civil law). He
also expressed the view that the work was, for the most part, moving forward and that
the two rapporteurs should combine their two perspectives in order to present a unified
document to the members of the Juridical Committee for final consideration.
Dr. Felipe Paolillo recommended that a decision was needed on whether some of
the problems mentioned by Dr. Vázquez should or should not be examined, inasmuch
as they were basic issues and given the urgency with which the Permanent Council had
requested the report from the Inter-American Juridical Committee. In his view, the
question whether or not there was the likelihood of an instrument being adopted was not
an issue that the Committee had to consider, as that was a political decision that the
General Assembly would decide. Dr. Paolillo felt that the Inter-American Juridical
Committee should confine itself to the legal aspects of the topic. That alone, he said,
was very demanding. He suggested that the Committee should try to narrow the field of
study suggested by Dr. Carlos Manuel Vázquez. Lastly, he said that he shared Dr.
Vázquez's view that a convention on the subject, as general as the one being proposed,
did not seem viable.
Dr. Jonathan T. Fried said that what the Permanent Council wanted from the InterAmerican
Juridical Committee was a neutral second opinion, because no agreement
could be reached during CIDIP-VI. He suggested that the Committee should try to
identify what the most relevant issues were, to get a better idea of the nature of the
problem and to provide a firmer basis for discussion. This, he said, should be done
before attempting to combine the two documents.
Dr. Brynmor T. Pollard wondered whether a regional agreement might be more
feasible than a universal one in the area of private international law, and specifically as
regards this topic. Dr. Kenneth O. Rattray, for his part, wondered whether the States
were really interested in looking at this topic. His view was that generally speaking, the
topic was far too broad for the Juridical Committee to be able to complete a rapid
24
response that was of some value. He suggested that the Committee might begin by
adopting a somewhat narrower approach to the subject.
Based on these comments, the Inter-American Juridical Committee adopted
resolution CJI/RES.50 (LXI-O/02), Applicable law and competency of international
jurisdiction with respect to extracontractual civil liability. In that resolution, it expressed
its thanks for the studies that the two rapporteurs had presented and requested them to
complete, by the appointed date, a draft report for the Juridical Committee to consider at
its LXII regular session, taking into account the considerations identified in that
resolution.
The following are the texts of the resolutions adopted and the documents
presented in the Inter-American Juridical Committee in 2002:
CJI/RES. 38 (LX-O/02)
INTER-AMERICAN SPECIALIZED CONFERENCES
ON PRIVATE INTERNATIONAL LAW
(CIDIPs)
THE INTER-AMERICAN JURIDICAL COMMITTEE,
CONSIDERING the work done by the Sixth Inter-American Specialized Conference on
Private International Law, held in the headquarters of the Organization of American States
from 4 to 8 February 2002;
MINDFUL of the importance of the Inter-American Specialized Conferences on Private
International Law in facilitating relations between the member States in the fields of civil,
commercial and other relevant laws, and in closer relations between their populations,
RESOLVES:
1. To welcome, with satisfaction, the resolution CIDIP-VI/RES.2/02 which
appreciates the work performed by the Inter-American Juridical Committee on the matter.
2. To take note of and acknowledge the report presented by the Juridical
Committee Observers, Drs. Joo Grandino Rodas and Carlos Manuel Vázquez, at the Sixth
Inter-American Specialized Conference on Private International Law (CJI/doc.74/01 rev.1,
CIDIP-VII and beyond).
3. To renew its willingness to contribute to the study of the topic "Applicable law
and competent international jurisdiction in terms of extra-contractual liability" and to the
preparation of the Seventh Inter-American Specialized Conference on Private International
Law, pursuant to resolutions CIDIP-VI/RES.1/02, Request for the General Assembly to
convoke the Seventh Inter-American Specialized Conference on Private International Law
(CIDIP-VII), and CIDIP-VI/RES.2/02, Recognition of the work of the Inter-American Juridical
Committee, subject to the decisions of the General Assembly.
This resolution was unanimously adopted at the session held on 1st
March 2002, in the
presence of the following members: Drs. Felipe Paolillo, Brynmor Thornton T. Pollard, Sergio
González Gálvez, Ana Elizabeth Villalta Vizcarra, Kenneth O. Rattray, Joo Grandino Rodas
and Orlando R. Rebagliati.
25
CJI/RES.50 (LXI-O/02)
THE APPLICABLE LAW AND
COMPETENCY OF INTERNATIONAL JURISDICTION
WITH RESPECT TO EXTRACONTRACTUAL CIVIL LIABILITY
THE INTER-AMERICAN JURIDICAL COMMITTEE,
RECALLING that, in resolution CP/RES.815 (1318/02), the Permanent Council
resolves to:
"1. Instruct the Inter-American Juridical Committee to examine the
documentation on the topic regarding the applicable law and competency of
international jurisdiction with respect to extracontractual civil liability, bearing in
mind the guidelines set out in CIDIP-VI/RES.7/02," and
2. Instruct the Inter-American Juridical Committee to issue a report on the
subject, drawing up recommendations and possible solutions, all of which are to
be presented to the Permanent Council as soon as practicable, for its
consideration and determination of future steps."
BEARING IN MIND that the guidelines set forth in CIDIP-VI/RES.7/02, to which the
Permanent Council refers, provide that:
"a. The Inter-American Specialized Conference on Private International Law
acknowledges the need to consider regulation of applicable law and
competency of jurisdiction with respect to extracontractual civil liability.
Therefore, the Conference is in favor of conducting a preliminary study to
identify specific areas revealing progressive development of regulation in
this field through conflict of law solutions, as well as a comparative
analysis of national norms currently in effect.
b. That study may refer to such areas of the aforementioned subject matter
as proven to be relevant and are likely to be broadly accepted.
c. As regards the issues to be analyzed, the Conference recognizes the
advisability of contemplating the reasonable expectation of plaintiffs that
they will be able to sue before forums that are accessible and have a
legal system in their favor, as well as the reasonable expectations of
defendants not to be sued and judged before forums or by laws lacking a
reasonable connection with the subject of the suit or with the parties."
2. Requests the Permanent Council to appoint the Inter-American Juridical
Committee to examine the documentation on the matter and, taking into account the
preceding bases, issue a report, make recommendations and possible solutions, to be
submitted to a Meeting of Experts."
HAVING BENEFITTED from a thorough discussion of this subject at its current regular
session,
RESOLVES:
1. To welcome the preliminary studies presented by the co-rapporteurs, Dr. Ana
Elizabeth Villalta Vizcarra (Recommendations and possible solutions proposed to the topic
related to the law applicable to international jurisdictional competence with regard to
extracontractual civil responsibility, CJI/doc.97/02) and Dr. Carlos Manuel Vázquez (The
desirability of pursuing the negotiation of an inter-american instrument on choice of law and
competency of international jurisdiction with respect to non-contractual civil liability: a
framework for analysis and agenda for research, CJI/doc.104/02 rev.2).
26
2. To ask the rapporteurs to complete a draft report in time for consideration by the
Committee at its 62nd
regular session, adhering to the following parameters:
a. The report should include an enumeration of the specific categories of
obligations that are encompassed within the broad category of "non-contractual
obligations." Such analysis will serve to illustrate the enormous breadth and
variety of obligations that an Inter-American instrument on jurisdiction and
choice of law in this field could potentially affect.
b. The report should focus primarily on the task of identifying specific areas within
the broad category of extracontractual liability which might be suitable subjects
for an Inter-American instrument regulating applicable law and competency of
jurisdiction. Such focus is consistent with the CIDIP resolution referenced by the
Permanent Council, to be treated as a Guideline, which specifically asks the
Committee to "identify specific areas revealing progressive development of
regulation in this field through conflict of law solutions." Such focus is also
consistent with the conclusion of the Hague Conference on Private International
Law, which in 1967 concluded that, because of the great variety of claims within
the scope of non-contractual liability, addressing the question of applicable law
through a general convention encompassing the entire field was not feasible.
Accordingly, the Hague Conference proceeded to pursue the adoption of
instruments regulating applicable law in specific subcategories of noncontractual
civil liability.
c. The report should complete the project already begun in the preliminary reports
of Drs. Villalta and Vázquez, of surveying the approaches to jurisdiction and
choice of law currently being employed in the hemisphere in the field of noncontractual
liability. With respect to some Members States, the report must
focus on the approaches followed by subnational as well as national units. The
survey should, where relevant, describe not only the current approaches
followed by the Members States, but also the historical evolution of the states'
approach to the questions of applicable law and competency of international
jurisdiction in the field of extracontractual liability. As far as possible, the report
should also address scholarly critiques and proposals for change that have
been made in the areas of jurisdiction and choice of law in non-contractual
disputes.
d. The report should, as far as possible, address the approaches employed by
Members States to decide the applicable law and competency of international
juristiction with respect to particular subcategories of non-contractual
obligations, to the end of fulfilling the mandate to "identify specific areas
revealing progressive development of regulation in this field through conflict of
law solutions." Given the wide array of non-contractual obligations, it will not be
possible to survey the Members States' approaches to applicable law and
competency of international jurisdiction with respect to each and every
subcategory of non-contractual obligation. The rapporteurs will accordingly have
to limit their research to some subcategories. Having conducted this survey, the
rapporteurs should identify the specific subcategories of non-contractual
obligations as with sufficient harmony among the Members States to facilitate
the successful adoption of an inter-American instrument on the subject.
e. The report should also consider past and present efforts of global, regional, and
subregional organizations that have sought, and in some cases continue to
seek, conflict of laws solutions in this field. As discussed in the reports of Drs.
Villalta and Vázquez, efforts have been undertaken, or are currently being
undertaken, by the Hague Conference at the global level, by the European
Union at the regional level, and by Mercosur at the subregional level, among
other public and private organizations that have studied the problem and in
some cases proposed solutions. All of these efforts should be closely studied
27
for the lessons they might offer and what they might suggest about the
likelihood of success or failure.
f. With respect to the particular subcategories of non-contractual obligations that
the rapporteurs regard as potentially suitable for treatment in an Inter-American
conflict of laws instrument, the report should provide options as to the form and
content of such an instrument. With respect to form, the report should consider
whether the instrument should take the form of a convention or a model law.
With respect to content, the report should set forth the instrument´s possible
approaches concerning international jurisdiction and choice of law. Specifically,
the report should consider whether, with respect to the particular subcategory of
non-contractual obligation being considered, a conflict of laws approach is
preferable to an attempt to harmonize the substantive laws of the Member
States. With respect to both form and content, the report should discuss the
pros and cons of following the various options considered.
g. If the rapporteurs consider it desirable, the report could also set forth the
provisions that a conflict of laws instrument might include.
This resolution was unanimously adopted at the session held on 23 August 2002, in the
presence of the following members: Drs. Brynmor Thornton Pollard, Orlando R. Rebagliati,
Felipe Paolillo, Ana Elizabeth Villalta Vizcarra, Kenneth O. Rattray, Carlos Manuel Vázquez and
Sergio González Gálvez.
CJI/doc.84/02
HARMONIZATION OF LAWS CONCERNING
ELECTRONIC COMMERCE AND CROSS-BORDER INSOLVENCY
(presented by Dr. Carlos Manuel Vázquez)
Resolution CIDIP-VI/RES.1/02 adopted at the Sixth Inter-American Specialized
Conference on Private International Law (CIDIP-VI) recommends eight topics for further
study by a group of experts as possible subjects to be treated in the Seventh Inter-American
Specialized Conference on Private International Law (CIDIP-VII). The present document was
prepared with a view to supporting the work of the aforementioned group of experts. It
discusses the work that has recently been done, or is currently done, by national and
international entities with respect to two of the topics listed in said resolution: harmonization
of laws concerning electronic commerce and cross-border insolvency.
I. Electronic Commerce
International organizations that have addressed the harmonization of electronic
commerce laws include the United Nations Commission on International Trade Law, the
Organization for Economic Cooperation and Development, the International Chamber of
Commerce, the European Council, the Free Trade Area of the Americas Negotiating Parties,
the Hague Conference on Private International Law, the American Bar Association, and the
World Trade Organization.
A. United Nations Commission on International Trade Law (UNCITRAL)
The UNCITRAL Working Group on Electronic Commerce has adopted a Model Law
on Electronic Commerce with Guide to Enactment.1
The 1996 Model Law applies to data
messages of any kind used in commercial activity.2
Countries that have adopted domestic
1
UNCITRAL Model Law on Electronic Commerce with Guide to Enactment, U.N. G.A. Res. 51/62, Dec. 16, 1996, available at
www.uncitral.org/english/texts/electcom/ml-ecomm.htm (accessed Jan. 23, 2002). The model law was amended in 1998.
2
See UNCITRAL Model Law on Electronic Commerce, supra at Art. 1.
28
legislation based upon the Model Law include Australia, Bermuda, Columbia, France, Hong
Kong, India, Ireland, Korea, Mexico, Philippines, Singapore, Slovenia, the States of Jersey,
Thailand, and, within the United States, in the State of Illinois.3
The Model Law has also
been used as a guide for other model laws, including the Uniform Electronic Commerce Act,
adopted in 1999 by the Uniform Law Conference of Canada, and the Uniform Electronic
Transactions Act, adopted in 1999 by the National Conference of Commissions on Uniform
State Law in the United States. In 1998, the UNCITRAL Working Group on E-commerce
considered and rejected the possibility of a convention on electronic commerce after
members voiced fears that a convention would detract from the continued influence of the
Model Law.4
Last year, the Working Group on Electronic Commerce also adopted a Model Law on
Electronic Signatures.5
The previous year, UNCITRAL adopted Uniform Rules on Electronic
Signatures with Guide to Enactment, which set forth standards to ensure that online
signatures have the same legal effect as handwritten signatures.6
At its March 2002 meeting, the Working Group will be considering the elimination of
barriers to electronic commerce imposed by treaties.7
The Working Group will consider
amendments to existing treaties, as well as a draft convention on electronic contract
formation.8
B. Organization for Economic Cooperation and Development
The Organization for Economic Cooperation and Development (OECD) is engaged in
harmonization work on aspects of electronic commerce, including consumer protection and
privacy. In 1999, the OECD adopted Guidelines for Consumer Protection in the Context of
Electronic Commerce, directed to ensuring that online consumers are at least as informed
and empowered as consumers making purchases through other media.9
In 1980, the OECD
adopted Guidelines on the Protection of Privacy and Trans-border Flows of Personal Data,
seeking to strike a balance between the protection of personal privacy and the benefits to
economic and social development created by free flow of personal data.10
To promote
implementation of the 1980 Guidelines, the OECD maintains an interactive Internet site that
allows web site operators to analyze the compliance of their sites with the Guidelines.11
C. International Chamber of Commerce
The International Chamber of Commerce (ICC) Electronic Commerce Project (ECP)
has established best practices and definitions of key terms used in electronic contracts.12
3
See Electronic Data Interchange, Internet and Electronic Commerce, The Hague Conference on Private Intĺ Law Preliminary
Doc. No. 7, at 5-6 (Apr. 2000), available at ftp://hcch.net/doc/gen_pd7e.doc (accessed Jan 23. 2002); see also Summer, 2001
Meeting of OAS-CIDIP-VI Drafting Committee on Secured Transactions, 18 ARIZ. J. INTĹ & COMP. L 491, 522 (2001) (discussing
the influence of the Model Law on Mexican legislation).
4
See generally Documents of the Working Group on Electronic Commerce, available at
www.uncitral.org/english/workinggroups/wg_ec/index.htm (accessed Jan. 23, 2002).
5
UNCITRAL Model Law on Electronic Signatures, U.N. G.A. Res. 56/80, July 5, 2001, available at
www.uncitral.org/english/texts/electcom/ml-elecsig-e.pdf (accessed Jan 23, 2002).
6
Draft Guide to Enactment of the UNCITRAL Uniform Rules on Electronic Signatures, U.N. Doc. A/CN.9/WG.IV/WC.86, Aug. 18,
2000, available at http://www.uncitral.org/english/workinggroups/wg_ec/wp-86.pdf (accessed Jan. 23, 2002).
7
Provisional Agenda for the 39th Session of the UNCITRAL Working Group on Electronic Commerce, U.N. Doc.
A/CN.9/WG.IV/WC.92, Dec. 11, 2001, available at http://www.uncitral.org/english/workinggroups/wg_ec/wp-92e.pdf (accessed
Jan 23. 2002).
8
See UNCITRAL Group to Begin Discussions on E-Contracting Treaty at March Meeting, 70 U.S. LAW WEEK 2453 (2002).
Drafters of this convention have sought to avoid potentially controversial topics of consumer contracts and software licensing.
See id. at 2454.
9
Recommendation of the OECD Council Concerning Guidelines for Consumer Protection in the Context of Electronic Commerce,
Art. 1, Dec. 9, 1999, available at http://www1.oecd.org/dsti/sti/it/consumer/prod/CPGuidelines_final.pdf (accessed Jan. 20, 2002).
These guidelines were drafted by the OECD Committee on Consumer Policy of the OECD Directorate for Science, Technology
and Industry.
10
OECD Guidelines on the Protection of Privacy and Trans-border Flows of Personal Data, Sept. 23, 1980, available at
http://www.oecd.org/ E:/droit/doneperso//ocdeprive/priv-en.htm (accessed Jan. 23, 2002).
11
This is available at the OECD web site, www.oecd.org.
12
For more information about the ICC Electronic Commerce Project, see
www.iccwbo.org/home/electronic_commerce/electronic_commerce_project.asp (accessed Jan. 15, 2002).
29
The ECP has produced the 1997 General Usage for International Digitally Insured
Commerce (GUIDEC I) and the 2001 GUIDEC II. These two sets of standards establish
harmonized definitions and rules for the use of electronic authentication techniques.13
D. The European Council
The European Council (EC) has issued many directives related to electronic
commerce.14
In 2000, the EC adopted the Directive on Certain Legal Aspects of Information
Society Services, in Particular Electronic Commerce, in the Internal Market.15
This directive
creates a legal framework for electronic commerce in the European Union. In 1999, the EC
adopted the Directive on Electronic Signatures, which required implementation by Member
States prior to July 2001.16
This directive creates a general framework for a global market for
electronic signature certification and also grants electronic signatures the same legal status
as handwritten signatures, including admissibility in court. In 1995 and 1997, the EC adopted
Directives on Data Protection.17
In addition to the EC directives on data protection, the EU
Committee of Ministers has issued guidelines to protect privacy in collection and processing
of personal data.18
E. Free Trade Area of the Americas
The parties negotiating the Free Trade Area of the Americas (FTAA) have established
the Joint Government-Private Sector Committee of Experts on Electronic Commerce, a nonnegotiating
body which studies, reports, and makes recommendations regarding the
harmonization of electronic commerce laws. The Committee's Second Report with
Recommendations to Ministers provides an overview of harmonization work on electronic
commerce and reviews electronic commerce legislation at the national level.19
The Report
does not expressly call for harmonization of laws on electronic commerce within the text of
the FTAA agreement. Instead, the Report recommends adoption of the UNCITRAL Model
Law on Electronic Commerce. An October 2001 Committee press release states that future
work will focus on matters related to "consumer protection, electronic government and other
issues."20
F. The Hague Conference on Private International Law
The Hague Conference on Private International Law has been studying electronic
commerce and its impact on the application of existing Hague instruments. In April 2000
The Hague Conference issued a Preliminary Report on Electronic Data Interchange, Internet
and Electronic Commerce.21
The Report cites work by UNCITRAL on electronic data
interchange and work by the European Council, the OECD, and the European Union on data
13
For more information on the substance of GUIDEC I and II, see www.iccwbo.org/home/menu_electronic_commerce.asp
(accessed Jan. 15, 2002).
14
Unlike instruments adopted by other regional harmonization bodies, EC directives require implementation by member states.
The EC therefore closely tracks member state implementation of its directives Information on such implementation is generally
available on the European Union web site, at http://www.europa.int (accessed Jan. 23, 2002).
15
Directive 2000/31/EEC on Certain Legal Aspects of Information Society Services, in Particular Electronic Commerce, in the
Internal Market, Jun. 8, 2000, 2000 O.J. (L 178) 2.
16
Directive 1999/93/EEC on Electronic Signatures, Dec. 13, 1999, 1999 O.J. (L 013) 12.
17
Directive 1995/46/EEC on Data Protection, Nov. 23, 1995, 1995 O.J. (L 281) 31; Directive 1997/66/EEC on Data Protection, Jan.
30, 1998, 1998 O.J. (L 24) 8.
18
Recommendation No. R(99) 5 of the European Union Committee of Ministers to Member States for the Protection of Privacy on
the Internet, cited in Heather Rowe, The Directive on The Protection of Individuals with Regard to the Processing of Personal
Data and on the Free Movement of Such Data, 607 PLI / Pat 179 (June 2000).
19
FTAA Joint Government-Private Sector Committee of Experts on Electronic Commerce Second Report with Recommendations
to Ministers, FTAA.ecom/03/Rev.3, Apr. 9, 2001, available at http://www.ftaa-alca.org/SPCOMM/derdoc/ec3r3de.doc (accessed
Feb. 15, 2002).
20
Press Release of Eleventh Meeting of Joint Government-Private Sector Committee of Experts on Electronic Commerce, Oct. 26,
2001, available at http://www.ftaa-alca.org/SPCOMM/press/scecc11e.asp (accessed Feb. 14, 2002). For an overview of ecommerce
and the FTAA, see J. Barrett Willingham, Note, Electronic Commerce and the FTAA, 6 NAFTA Law & Bus Rev
Americas 483, 505 (2000). Willingham states that, as of 1999, "many of the FTAA recommendations follow WTO agreements or
defer to the WTO Work Program on trade-related aspects of electronic commerce."In addition to the tracking of national ecommerce
legislation done by the FTAA Joint Government-Private Sector Committee of Experts on electronic Commerce, the
law firm Baker & McKenzie maintains a web site with current national e-commerce laws at
http://www.bmck.com/ecommerce/intlegis.htm.
21
Electronic Data Interchange, Internet and Electronic Commerce, supra.
30
privacy, suggesting that such instruments produced by other institutions may leave no need
for Hague harmonization on electronic commerce.22
Skepticism of the need for Hague
instruments on electronic commerce is echoed in an August 2000 Hague report on
Electronic Commerce and International Jurisdiction, which concluded that electronic
commerce should be considered as part of the Draft Hague Convention on Jurisdiction and
Foreign Judgments, rather than through adoption of a new instrument focused exclusively on
Internet jurisdiction.23
G. The American Bar Association
Since 1985 the American Bar Association (ABA) has addressed electronic commerce
through its Committee on Cyberspace Law. In 1998, the Committee issued a report on
Transnational Issues in Cyberspace: A Project on the Law Relating to Jurisdiction.24
H. World Trade Organization
The World Trade Organization (WTO) began a work programme on trade-related
aspects of electronic commerce in 1998. Although legal harmonization in the electronic
commerce area is not a stated purpose of the work programme, as part of the programme
the WTO Council for Trade in Goods has been studying standards in relation to electronic
commerce.25
Apart from preliminary general thoughts on standards, the Council has not
issued any publicly-available documents or instruments.26
II. Cross-Border Insolvency
Because of the need for stability in an increasingly interdependent international
financial system, the issue of international insolvency rose to top priority on the international
harmonization agenda following financial collapses in emerging markets in the late 1990s.27
International organizations that have addressed the harmonization of cross-border
insolvency law include UNCITRAL, The World Bank, the International Monetary Fund, the
European Commission, the American Law Institute, the Organization for Harmonization of
African Law, the International Bar Association, and the Working Group on International
Financial Crises ­ G22.
A. UNCITRAL
In 1997, the UNCITRAL Working Group on Insolvency Law adopted a Model Law on
Cross-Border Insolvency with a Guide to Enactment.28
The Model Law "creates a set of
procedural rules to be integrated into the substantive bankruptcy law."29
The purpose of the
Model Law is to achieve "limited but effective cooperation, compatible with all legal systems
and, therefore, acceptable to all countries. Its goals are to ensure cooperation in crossborder
insolvency cases through recognition of foreign decisions and access of foreign
liquidators or administrators to local court proceedings."30
As of August 2001, the Model Law
had been adopted in substantive part by Japan, Mexico, and South Africa. In addition, the
Model Law "has been approved in principle by the British Parliament, pending a regulation
adopting a specific text, and has been recommended for adoption in New Zealand by its Law
22
Id.
23
Electronic Commerce and International Jurisdiction, The Hague Convention on Private Intĺ Law Preliminary Doc. No. 12 (Aug.
2000), available at ftp://hcch.net/doc/jdgmpd12.doc (accessed Jan. 23, 2002).
24
See A.B.A., London Meeting Draft ­ Achieving Legal and Business Order in Cyberspace: A Report on Global Jurisdictional
Issues Created by the Internet, available at http://www.abanet.org/buslaw/cyber/initiatives/draft.rtf (accessed Jan. 23, 2002).
25
WTO General Council Work Programme on Electronic Commerce, Sept. 25, 1998, available at
http://www.wto.org/english/tratop_e/ecom_e/wkprog_e.htm (accessed Feb. 14, 2002).
26
See Work Programme on Electronic Commerce, Information Provided to the General Council, WTO Doc. G/C/W/158, July 26,
1999.
27
See generally Ian F. Fletcher, INSOLVENCY IN PRIVATE INTERNATIONAL LAW: NATIONAL AND INTERNATIONAL APPROACHES (1999)
(discussing UNCITRAL Model Law, European efforts, and Latin American insolvency treaties); Harold S. Burman, Harmonization
of International Bankruptcy Law: A United States Perspective, 64 FORDHAM L. REV. 2543 (1996).
28
U.N. Commission on International Trade Law's Model Law on Cross- Border Insolvency, G.A. Res. 52/158, UNCITRAL, 30th
Sess., Supp. No. 17, Doc. A/52/17 (May 30, 1997), 36 I.L.M. 1386.
29
Hannah L. Buxbaum, Rethinking International Insolvency: The Neglected Role of Choice-of-Law Rules and Theory, 36 STAN. J.
INTĹ L. 23, 34 (2000).
30
Legal Depť, Intĺ Monetary Fund, Report on Orderly and Effective Insolvency Procedures: Key Issues, IMF Internal Document,
May 1999, available at http://www.imf.org/external/pubs/ft/orderly/index.htm (accessed Jan. 23, 2002).
31
Commission. It has been proposed in the United States Congress as a new Chapter 15 of
the United States Bankruptcy Code."31
Recently the Working Group on Insolvency Law has considered other approaches to
the problem of international insolvency harmonization. Given the "complexity and variety of
issues involved in insolvency law and the disparity of approaches taken within the various
legal systems," the Working Group writes, harmonization of cross-border insolvency laws
"should ensure as much flexibility as possible."32
Therefore, the principal objective pursued
by the Working Group in the past few years has been to identify the features of efficient and
effective insolvency regimes. The Working Group is currently elaborating a detailed Draft
Legislative Guide on Insolvency Law,33
slated for completion by 2003.
B. The World Bank
The Insolvency Initiative of The World Bank produced Principles and Guidelines for
Effective Insolvency and Creditor Rights Systems in 2001, recommending that nations
implement the UNCITRAL Model Law.34
The Insolvency Initiative also maintains a Global
Insolvency Law Database (GILD), assembling the insolvency laws of countries throughout
the world and tracking changes to the laws.35
C. International Monetary Fund
The International Monetary Fund (IMF) produced a 1999 Report of Orderly and
Effective Insolvency Procedures: Key Issues, which outlines broad policy considerations
when modernizing a national insolvency system and recommends adoption of the
UNCITRAL Model Law.36
As part of its effort to encourage modernization of national
legislation on insolvency, the IMF has received letters of intent to modify bankruptcy systems
from Albania, Bulgaria, Guinea, Indonesia, Kazakhstan, Lithuania, Macedonia, Republic of
Moldova, Russia, South Korea.37
D. The European Commission
In 2000, the EC issued a Regulation on Insolvency Proceedings.38
The EC has also
adopted the 1991 European Convention on Certain International Aspects of Bankruptcy
(Instanbul Convention).39
On the other hand, the European Union Convention on Insolvency
Proceedings (1995) failed to be ratified by its 1999 deadline.
E. American Law Institute
Recognizing significant work at the global level by UNCITRAL and a corresponding
lack of regional work in the Americas, the American Law Institute (ALI) formed the
Transnational Insolvency Project to identify principles and procedures for managing crossborder
insolvencies in the NAFTA region. In 2000, the ALI approved the Principles of
Cooperation in Transnational Insolvency Cases among Members of the North American Free
Trade Agreement.40
31
Jay Lawrence Westbrook, Symposium-International Insolvency: Bankruptcy in a Global Economy Global Developments, The
Transnational Insovlency Project of the American Law Institute, 17 CONN. J. INTĹ L. 99, 101 n. 8 (2001).
32
Report of the Working Group on Insolvency Law on the Work of its Twenty-Fourth Session, U.N. Doc. A/CN.9/504, Aug. 13,
2001, at 3, available at http://www.uncitral.org/en-index.htm (accessed Jan. 23, 2002).
33
UNCITRAL Draft Legislative Guide on Insolvency Law, U.N. Doc. A/CN.9/WG.V/WP.57 (Oct. 30, 2001) and U.N. Doc
A/CN.9/WG.V/WP.58 (Oct. 5, 2001), available at http://www.uncitral.org/en-index.htm (accessed Jan. 23, 2002).
34
The World Bank, Principles and Guidelines for Effective Insolvency and Creditor Rights Systems, Apr. 2001, available at
http://www.worldbank.org/ifa/Insolvency%20Principles%20and%20Guidelines%20April%202001.pdf.
35
The Global Insolvency Law Database (GILD) can be accessed on the Internet, available at
http://wbln0018.worldbank.org/legal/gild/entry.nsf/entry?readform (accessed Jan. 23, 2002).
36
Report of Orderly and Effective Insolvency Procedures: Key Issues (Aug. 1999), available at
http://www.imf.org/external/pubs/ft/orderly/index.htm (accessed Feb. 15, 2002).
37
These letters are accessible on the IMF web site, at www.imf.org (accessed Feb. 15, 2002).
38
European Council Reg. No. 1346/2000 on Insolvency Proceedings (May 29, 2000), 2000 O.J. (L 160) 1.
39
European Convention on Certain International Aspects of Bankruptcy (Istanbul Convention), June 5, 1990, 30 I.L.M. 165 (1991).
40
See Westbrook, supra.
32
F. Organization for Harmonization of African Law
The Organisation pour ľ Harmonisation en Afrique du Droit des Affaires (OHADA) is
an organization of sub-Saharan African States that works on the harmonization of
commercial laws. OHADA has adopted the Uniform Act for the Organization of Procedures
for the Cancellation of Debts, which went into effect in 1999.41
G. International Bar Association
Committee J of the International Bar Association (IBA) focuses on the topic of
insolvency and creditors' rights. Currently, Committee J is working towards completion of a
Model Insolvency Law Project, which seeks to identify general principles and develop model
law provisions. In addition, the IBA approved Committee J's Cross-Border Insolvency
Concordat in 1996. The Concordat contains general principles to govern parties to crossborder
insolvencies.42
The IBA also adopted a Model International Insolvency Cooperation
Act (MICA) in 1989.43
The IBA reports that the principles contained in these instruments
were incorporated into the UNCITRAL Model Law.44
H. Working Group on International Financial Crises (G22)
Following the international financial crises of the late 1990s, officials from the G-22
economies met in Washington and established the Working Group on International Financial
Crises. In 1998 the Working Group adopted the Key Principles and Features of Effective
Insolvency Regimes, which sets forth policies designed to prevent international financial
crises and facilitate their resolution.45
CJI/doc.89/02
SIXTH INTER-AMERICAN SPECIALIZED CONFERENCE
ON INTERNATIONAL PRIVATE LAW
(CIDIP-VI)
(presented by Drs. Carlos Manuel Vázquez and
Joo Grandino Rodas)
The Sixth Inter-American Specialized Conference on Private International Law took
place in Washington, D.C., during the week of February 4-8, 2002. Drs. Joo Grandino
Rodas, Luis Herrera Marcano, and Carlos Manuel Vázquez represented the Inter-American
Juridical Committee at the opening session as observers. This report describes the
presentation and reception of the report of the Inter-American Juridical Committee, titled
CIDIP VII and beyond (CJI.doc.74/01 rev.1), during the course of CIDIP-VI. It also describes
in very brief summary the accomplishments of CIDIP-VI, and the mandate that will
apparently soon issue to the IAJC as a result of resolutions taken at CIDIP VI.
1. The IAJC Report
Dr. Didier Opertti, the President of CIDIP-VI, emphasized the issue of the future of
CIDIP at the opening session. He announced that a plenary session devoted to the topic
would be held on Thursday, February 7.
41
OHADA Acte Uniforme Portant Organisation des Procedures Collectives ďApurment du Passif, available at
http://www.ohada.com/textes.php?categorie=588 (accessed Jan. 23, 2002).
42
See David H. Culmer, Note, The Cross-Border Insolvency Concordat and Customary International Law: Is it Ripe Yet?, 14 CONN.
J. INTĹ L. 563 (1999) (analyzing the Concordat).
43
See Ian Fletcher, Cross Border Insolvency: Comparative Dimensions, 12 UNITED KINGDOM COMPARATIVE LAW SERIES 287 (1990)
(setting forth text of MICA).
44
See Key Achievements of Committee J of the International Bar Association, available at http://www.ibanet.org/committees/SBLJsubs2.asp#1
(accessed Jan. 23, 2002).
45
Key Principles and Features of Effective Insolvency Regimes, in Report of the Working Group on International Financial Crises
(Oct. 1998), Annex A, available at http://www.imf.org/external/np/g22/ifcrep.pdf (accessed Jan. 23, 2002).
33
Drs. Grandino and Vázquez presented the IAJC's report at the plenary session of
CIDIP on February 7. The IAJC report addressed the future of CIDIP from both a long-term
and a short-term perspective. Taking a long-term perspective, the report concluded that the
time was ripe for a thorough, in-depth study of the process of private international law
codification and private law harmonization in the Americas. This conclusion was based on
the views expressed by numerous specialists in private international law in response to the
questionnaire disseminated by the IAJC. First, concerns were expressed about the declining
rate of ratification of CIDIP instruments. Second, there has been a discernible shift in
emphasis in CIDIP-VI from classic private international law approaches to approaches
focusing on the harmonization of substantive law. Third, concerns were expressed about the
relevance of regional as opposed to global approaches to private law issues. Fourth,
concerns were expressed about the duplication of effort that occurs when numerous
international bodies are engaged in similar activities. Fifth, it was suggested that the
increasing economic integration of the region might warrant a modified approach to issues of
private international law. Finally, many respondents recommended an increased
commitment of resources to CIDIP. For all of these reasons, we concluded that a thorough
study of the future of CIDIP by a group of experts was warranted at this time.
Taking a shorter-term perspective, the report considered several possible topics that
might be appropriate for treatment at CIDIP-VII. We noted that the topics that had been
suggested most frequently by those who responded to the questionnaire were electronic
commerce, consumer protection, migration and free flow of persons, arbitration and dispute
settlement, protection of minors, and cross border insolvency.
In the discussion that ensued at the plenary session, there was little reference to our
proposal for a thorough study of the future of CIDIP. Some delegates expressed dismay that
some of those who responded to the questionnaire questioned the value of CIDIP. With
respect to the long-term direction of CIDIP, most of the comments concerned the desirability
of the shift in CIDIP-VI from the traditional private international law approaches to an
approach focusing on the harmonization of substantive law. President Opertti lamented this
shift, noting that only one of the three topics in CIDIP-VI takes the traditional approach. He
expressed the view that CIDIP has focused and should continue to focus on private
international law and should not become another UNCITRAL. Others argued that CIDIP
should be responsive to the needs of the Member States in the area of private law, and that
the Member States today appear to perceive the need to harmonize substantive law. Dr.
Vázquez observed that most of those who responded to the questionnaire expressed the
view that CIDIP should retain the flexibility to adopt either approach, depending on which is
more appropriate in the particular context.
The plenary session also included significant discussion of possible topics for CIDIPVII.
With respect to the topics mentioned in the IAJC report, delegates noted that the topic of
electronic commerce is a very broad topic encompassing numerous areas. It was stressed
that the topic should be given a narrower focus. Other delegations, however, stressed the
importance of including electronic commerce among the possible topics for treatment in
CIDIP-VII. The delegations also proposed additional topics to be considered for treatment in
CIDIP-VII, as reflected in the final resolution adopted in the third plenary session on Friday,
February 8.
The future of CIDIP was addressed in resolution 1/02, adopted on February 8. This
Conference resolved, in clause 1, "to continue with the CIDIP process as the appropriate
forum for the codification and development of private international law in the Hempisphere."
In clause 3, it requests the General Assembly to convoke CIDIP-VII. And in clause 4, it
"requests the General Secretariat, through the Secretariat for Legal Affairs, to organize a
consultation of experts aimed solely at discussing the future of CIDIP and future topics that
are appropriate for treatment at CIDIP-VII." The resolution thus parallels the
recommendation of the IAJC, with the apparent proviso that the study of the future of CIDIP
must take for granted the continuation of the CIDIP process as the appropriate process for
codifying and developing private international law in the Americas.
34
As to the topics for CIDIP-VII, the resolution recommends that further consideration be
given to three of the topics that were mentioned in the IAJC report: electronic commerce,
cross-border insolvency, and migration and free flow of persons. In addition, the resolution
recommends consideration of the following five topics: development of an inter-American
computer-based registry system; continuation of CIDIP-VI, Topic I, transportation work to
encompass a multi-modal approach, including road, rail, shipping, and air transportation;
investment securities; international legal rights for the transferability of tangible and
intangible goods in international trade; and international protection of persons with
disabilities. Although eight topics were listed in the resolution as topics to be studied by the
group of experts, it was stressed by some delegations that no more than two or three topics
should ultimately be selected for treatment at CIDIP-VII.
2. Accomplishments of CIDIP-VI
There were three topics on the agenda of CIDIP-VI. Topic 1 concerned a draft bill of
lading for carriage of goods by road. Topic 2 concerned a model law on secured
transactions. Topic 3 concerned a draft convention on responsibility for transboundary
pollution.
The first two topics culminated in the adoption of instruments. With respect to topic 1,
the delegations adopted two model laws: a Uniform Negotiable Bill of Lading for Carriage of
Goods by Road and a Uniform Non-negotiable Bill of Lading for Carriage of Goods by Road.
Two model documents were needed, because the North and South American delegations
could not agree on one model document or on a protocol to the 1989 Inter-American
Convention on Transport of Goods by Road.
With respect to topic 2, the conference adopted a Model Inter-American Law on
Secured Transactions, which is expected to "reduce the cost of borrowing, and . . . facilitate
international trade and investment in the region, as well as [assist] small and medium-sized
enterprises throughout the Hemisphere." The drafting committee also acknowledged the
relevance of laws on electronic commerce and on electronic documents and signatures to its
model law and the integration of member states' secured financing systems. To this end,
instead of incorporating the Inter-American Uniform Rules on Electronic Documents and
Signatures, as proposed in previous drafts of the model law, the delegations resolved to
recommend use of the 1996 UNCITRAL Model Law on Electronic Commerce and the 2001
UNCITRAL Model Law on Electronic Signatures and Documents respectively.
With respect to topic 3, the Conference did not achieve agreement on any instrument.
Instead, it adopted a resolution calling for further study of the issue of extra-contractual
liability by the Inter-American Juridical Committee, including examination of documents and
precedents, production of a report, and if appropriate the drafting an international instrument
to be presented to a group of experts and subsequently considered by the General
Assembly in 2003.
CJI/doc.97/02
RECOMMENDATIONS AND POSSIBLE SOLUTIONS PROPOSED TO THE TOPIC
RELATED TO THE LAW APPLICABLE TO INTERNATIONAL JURISDICTIONAL
COMPETENCE WITH REGARD TO EXTRACONTRACTUAL CIVIL RESPONSIBILITY
(presented by Dr. Ana Elizabeth Villalta Vizcarra)
I. Mandate handed down to the Inter-American Juridical Committee
In item 3, letter b of its resolution AG/RES.1846 (XXXII-O/02) entitled Specialized
Inter-American Conferences on Private International Law, the General Assembly of the
Organization of American States, OAS requested to "examine, with regard to operative
35
paragraph 3 of resolution CIDIP-VI/RES.7/02, the report to be prepared by the InterAmerican
Juridical Committee pursuant to the mandate contained in resolution CP/RES.815
(1318/02)."
In this resolution the Permanent Council assigned the CIDIP topic to the InterAmerican
Juridical Committee, related to the International Jurisdictional Law and
Competence Applicable with regard to Extracontractual Civil Responsibility and also
resolved:
"1. To instruct the Inter-American Juridical Committee to examine the
documentation on the topic regarding the applicable law and competency of
international jurisdiction with respect to extracontractual civil liability, bearing in
mind the guidelines set out in CIDIP-VI/RES.7/02.
2. To instruct the Inter-American Juridical Committee to issue a report on
the subject, drawing up recommendations and possible solutions, all of which
are to be presented to the Permanent Council as soon as practicle for its
consideration and determination of future steps."
In its resolution CIDIP-VI/RES.7/02, entitled Applicable law and competency of
international jurisdiction with respect to extracontractual civil liability, the Sixth Inter-American
Specialized Conference on Private International Law (CIDIP-VI) resolved in item 2: "To
request the Permanent Council to entrust the Inter-American Juridical Committee with
examining the documentation on the subject and, bearing in mind the foregoing guidelines,
with issuing a report, in drawing up recommendations and possible solutions, all of which are
to be presented to a Meeting of Experts." And in item 3: "To request the General Assembly
to convey a Meeting of Experts to consider, on the basis of the IAJC report the possibility of
preparing an international instrument on the matter, to be presented to the OAS General
Assembly at its regular session in 2003." In its resolution CJ/RES.42 (LX-O/02) issued during
its 60th
regular session that approved the agenda for the 61st
regular session of the InterAmerican
Juridical Committee to be held in Rio de Janeiro, Brazil, from August 5 through 30,
2002, it was decided to discuss under letter "A. Current topics", item "1. Extracontractual
responsibility - CIDIP-VII", appointing as rapporteurs Drs. Carlos Manuel Vázquez and Ana
Elizabeth Villalta Vizcarra."
In compliance with the mandates contained in the above-mentioned resolutions, the
rapporteur of this topic presents the following report:
II. Doctrine aspects
In the sphere of obligations, Civil Responsibility includes:
a) the Contractual, and
b) the Extracontractual
Civil Contractual Responsibility consists in the obligation of repairing the damage resulting
from non-compliance of an obligation resulting from an Agreement.
Extracontractual Civil Responsibility are those obligations that do not arise from a
contract but, all to the contrary, arise at the margin of the autonomy of the will expressed by
the people, in other words, they originate into obligations that are born outside the
conventional framework and may arise from different sources: the quasi-contractual, the
illegal, the quasi-illegal and those from a legal source.
It is exactly for this reason that it regulates a very complex and wide-ranging sphere,
which covers a multiplicity of suppositions of different nature, including situations such as
those resulting from the damages caused by the manufacture of products, accidents caused
while circulating on highways, unfair competition, as well as those related to the contribution
of sea contamination by hydrocarbons, damages caused by nuclear accidents,
contamination of the transborder environment, etc.
In addition to the positive aspects that modern technology can offer, it also has the
capacity of generating international damages that may result in international civil
36
responsibility, corresponding to the discipline of Private International Law. The determination
of the law applicable in those cases results from obligations born without a convention.
In this respect, the obligation of repairing the damage has the purpose of protecting
people against the risks caused by modern industrial society.
The notion of Extracontractual Civil Responsibility leads us to understand it as an
obligation to repair a damage caused. Thus, in some legislations it is defined as "the
obligation to repair a damage resulting from the guilty non-compliance of a pre-existent legal
behavior or duty that, although the legislation may not determine so expressly, does in fact
protect the person legally by establishing a sanction within the positive juridical legal code."
The legislations in force in the different States, as well as the Jurisprudence Doctrine,
have decided in favor of several different solutions to determine the legislation applicable to
the obligations that are born without a convention, as well as to determine the competent
jurisdiction thereof.
Notwithstanding the above, if there is a mutual natural interconnection between the
matter of an "applicable law" and the "competent jurisdiction", since in practice the legislative
and jurisdictional competence are presented as indissoluble, they will be analyzed
separately, although they always show the interrelation that exists between them.
III. Aplicable law
In order to determine the law applicable to the obligation that arises without a
convention or which are considered extracontractual, we may refer to the so-called
Traditional or Classic Criteria and the Current Solutions.
A. Traditional or classic criteria
a) Lex fori
Defines as "Applicable Law" the law of the Court it is getting acquainted with, basing
itself mainly on international public order and policy standards.
Those who support the pertinence of the lex fori (or the juridical order of the State of
the judge who understands the case) argue that this is a common law to the parties and that
it has the advantage that the judge applies its own law.
This solution has been supported by Savigny, Miaja de la Muela and Story who
sustain: "that in the absence of a contrary doctrine, each country must apply its own laws."
Nevertheless, this criteria has been questioned because it ignores the pure basis of
modern Private International Law and because it would lead us to a situation of absolute
insecurity prior to the respect due to the rights and obligations of the interested parties.
b) Lex loci delicti commissi
Defines as the legislation applicable the "law of the place where the act occurred." Its
application approach is based on: the respect of rights acquired and the sovereignty of the
States; it has been seen as a natural link that unites all acts with the juridical order of the
place where they occur, thus the "Court and natural judge are those where the crime was
actually committed."
This traditional and classic criteria has been extremely successful in their application
both as regards the law applicable and the competent jurisdiction.
Arguments have been presented in favor of this criterion as a neutral connection point,
which is why it would reach a certain degree of balance regarding the rights of the individual
and why its application would allow reaching predictability and uniformity of results, while
safekeeping certainty and juridical security.
Nevertheless, the lex loci delicti commissi criteria have been criticized by a portion
of the doctrine and jurisprudence mainly "because of its mechanical application and abstract
character." The attack is directed against the traditional conflicting technique itself, traditional
37
for the rigidity with which it only uses one sole connection point to determine the law
applicable, namely, "the place where the act occurred," adopting fundamentally the "unique
connection approach."
Furthermore, criticism has been made of the inconveniences arising in practice from
the application of this traditional criterion, as for example:
1) When the act that generates the damage and the resulting damage itself occur
in different States, it becomes more difficult to apply this point of classical connection for this
case. Furthermore, it is not always easy or possible to determine where the fact or act
generating the damage has been committed, of the emerging damage itself.1
This situation has given rise to different solutions that have nevertheless encountered
difficulties in practice, for example:
If it is decided in favor of the law of the place where the act is committed, said law
could prove to be permissive or fail to establish the sanctions necessary to respond for a
given act.
The option in favor of the law of the place where the damage is caused could lead
to an inapplicable connection because of the existence of plural States impacted by the
results of the harmful act.
If an accumulative solution of both connections is preferred, the case in question will
become more complex.
2) The connection criterion is fortuitous and removed from the socio-economic
milieu of the parties.
3) The criterion is mechanical in nature, so its application may prove inconvenient
when, more then one State has a significant relationship with the act or other aspects of the
case, that is to say, "it fails to correspond to the true center of gravity of the various interests
in play."
To conclude, the lex loci delicti commissi has not been deemed appropriate for all
cases of application, since this is not always the most relevant law nor the one that has the
most meaningful or closest ties to the core of the controversy.
c) Lex domicilii
This criterion of connection determines the Domicile Law as the applicable law and
admits two variants: one referring to the common domicile and the other defining the
domicile of the injured party.
The Common Domicile Law consists in applying the right to the common domicile to
the author of the deed and the victim.
This criterion applies and is beneficial if both parties are domiciled in the same State,
since this constitutes the social context common to both and their right would take into
account their own interests.
The Victim's Domicile Law is a criterion that as a rule prevails when the interested
parties do not share the same domicile, so the Victim's Domicile Law is proposed as the
applicable criterion.
This criterion is more advantageous to the injured party as regards indemnity and
reparation of damage.
Among the legislations that make use of these traditional criteria, we can mention the
following:
1
Statement of Reasons. Draft Convention on Applicable Law and Competency of International Jurisdiction with respect to
Extracontractual Civil Liability, (presented by the Delegation of Uruguay - CIDIP-VI/doc.17/02, February 4, 2002).
38
The Colombian Civil Code, which regulates extracontractual liabilities by adopting the
traditional classification of liabilities in: contracts, quasi contracts, felonies, quasi offenses
and the law.
Accordingly, in order to solve disputes concerning extracontractual responsibility, the
law of the place where the offense was committed is applied, that is to say, the traditional
criterion of the Lex loci delicti commissi. 2
Article 2035 of the Civil Code of El Salvador states: "Responsibilities contracted
without agreement derive either from the law or from the willful deed of one of the
parties.Those deriving from the law are expressed therein".
If this willful deed is licit, it constitutes a quasi contract.
If the willful deed is illicit and committed with harmful intent, it constitutes an offense or
a fault.
If the deed is illicit but committed without harmful intent, it constitutes a quasi offense.
This article deals only with quasi contracts derived from the willful deed of one of the
parties.
Article 2036 then states: "There are three principal quasi contracts: the officious
agency, payment of what is not owed, and the community".
Current solutions
Concerning these traditional criteria with strict points of connection, the
Jurisprudence of the United States has been highly innovative in pointing to conflicting
provisions in cases of Extracontractual Civil Responsibility, especially those related to traffic
accidents, where the application of the lex loci delicti commissi to the case has been
replaced by the criterion of the most significant connection 3
, thus permitting the
application of domicile law rather than just the law of the place where the deed has occurred,
that is to say, the use of more directly related connection criteria, where account is also
taken of political trends.
The most prestigious United States doctrine combines three different methodologies:
a) The proximity principle;
b) Unilateral intent in determining the scope of material provisions based on state
interests, and
c) The teleological attempt to reach desirable results in settling problems caused
by external trade.
The doctrine of the Center of gravity is adopted, inclining towards the law of the
place that has a more significant connection with the object of the litigation, because of the
fact that applying the traditional criteria can lead to unfair and abnormal results. The AngloAmericans
call this solution the proper law of the tort.
Current doctrine and jurisprudence claim that the traditional or classic rules or
provisions of conflict that adopt a strict, mechanical application of conflicting norms are not
suitable for the current concept of extracontractual civil liability, with the judges having to
analyze the peculiar circumstances of the case as well as the content of the material
provisions of competence to attenuate rigid application of the connection criterion opted for.
Pierre Bourel states on the matter:
Extracontractual civil responsibility can not go on being treated as a
homogeneous category, and although there still subsists the old rule of the lex
2
MONROY CABRA, Marco Gerardo. Tratado de Derecho Internacional Privado. Ed. Temis, 1999.
3
FELDSTEIN DE CÁRDENAS, Sara Lidia. Derecho Internacional Privado. Parte Especial. Buenos Aires: Universidad Buenos
Aires, 2000.
39
loci delicti commissi, its application is not general or exclusive, and is often left
aside for the benefit of other connections.
One must therefore bear in mind the most suitable or convenient solutions according
to the current development of Private International Law, in order to determine both the
applicable law and the competent jurisdiction.
In the light of this problem, the present doctrine of Private International Law offers
other alternative solutions in Doctrine and in Comparative Law.
In this sense, Juenger claims that "the traditional points of connection are
inconvenient if used exclusively, and it is preferable that they be incorporated into an
alternative provision."4
Afonsín expresses the notion that "alternative rules presuppose that (the connection
criterion) will function that favors the person or business in question." This would mean
applying the law most favorable to the victim.
Uzal proposes that "determining the applicable law should contemplate the necessary
harmonization and equilibrium between individual and common interests." 5
Boggiano defends a methodology of materially oriented option. 6
Herbert poses the possibility of conciliating "classical conflictualism" and the
"methodological flexibilization" based on the Anglo-American criterion of proper law of the
tort, which would lead to adoption of an alternative rule (for example, with three connection
points, these being the place of the act, the place of the effects of the act, and the place of
domicile of the parties), guiding the criterion of option together with a substantive teleological
criterion, which implies delegating ample powers to the Judge.7
The Law of Private International Law in Switzerland inclines towards a particular
focus on the concrete case, thereby providing specific norms of teleological conflict on
matters such as: responsibility for damage caused by products; unfair competition;
contamination of the environment; highway traffic accidents; and violations of the so-called
right of personality.
The Portuguese Civil Code of 1966 and the Federal Austrian Law of 1978 are
inclined towards applying the system most closely connected to the situation in question,
resorting to making the traditional rules of conflict flexible by means of multiple connection
points and inclining towards the "principle of the strongest or most intense connection."
The Montevideo Treaties of International Civil Law of 1889 and 1940 refer to the
"responsibilities arising without an agreement" in the following words: "Responsibilities born
without an agreement are ruled by the law of the place where the licit or illicit act in question
occurred" (Art. 38 of the Treaty of 1889).
Art. 43 of the Treaty of 1940 states: "Responsibilities that arise without an agreement
are ruled by the law of the place where the licit or illicit act in question occurred and in that
case by the law regulating the corresponding legal relations.
Both provisions obey the traditional solution of the lex loci delecti commissi as being
the applicable legislation.
The Montevideo Treaties refer to the classic traditional solution, and the final section
of article 43 of the Treaty of 1940 determines a matter of qualification that should be
correctly resolved by the interpreter of same.
The Private International Law Code of 1928 (the "Bustamante Code") rules on this
type of responsibility in article 167, which establishes: "(Responsibilities) arising from
offenses or faults are subject to the same law as the offense or fault that cause them," and in
4
Statement of Reasons, afore mentioned.
5
Statement of Reasons, afore mentioned.
6
Statement of Reasons, afore mentioned.
7
Statement of Reasons, afore mentioned.
40
article 168, which states that: "(responsibilities) arising from acts or omissions involving guilt
or negligence left unpunished by the law will be ruled by the law of the place where such
originating guilt or negligence occurred."
In the framework of The Hague Conference on Private International Law to
determine the applicable law in Extracontractual Civil Responsibility, the technique of
multiple connection points or accumulating connections has been resorted to both in the
Convention on the Law Applicable to Traffic Accidents of 1971 and the Convention on Law
Applicable to Responsibility Derived from Products of 1973.
At present those engaged in drawing up treaties on this matter of analyzing the choice
of several connection criteria in order to determine the applicable law, taking into account the
situation in question, determine that if the injured party and the presumed responsible party
are domiciled in different States, the law to be applied is that of the place where the damage
occurred or that the place where the act that caused the damage occurred; if the victim and
the presumed responsible party are domiciled in the same State, the applicable law is that of
domicile. The general principle in the matter of harmful acts is to make the criteria of
connection flexible or to attenuate them through the technique of accumulating connections.
Consequently we are faced with a great deal of connection criteria that determine the
law to be applied to rule on the so-called responsibilities born without convention.
These selected criteria or points of connection should cover all the elements of civil
liability, including the presuppositions of responsibility, the conditions of responsibility, the
fixing of the parameters for indemnity and reparation or compensation for damage.
For this reason the selected point of connection should be accompanied by subsidiary
connection points for the purpose of making the rigidity of the main connection point more
flexible.
The strong criticism and violent attacks suffered by Extracontractual Civil
Responsibility have made it necessary for it to be reformulated with the appearance of new
tendencies aimed at helping in good faith those individuals who are more vulnerable in this
type of legal situation.
It is in this sense that Chapter X of the Italian Law of Private International Law of
1945 regulates on "non-contractual liabilities," which include the responsibility for illicit acts
and the extracontractual responsibility for damage to products.
So, the Responsibility for Illicit Acts is ruled by the law of the State where the act
took place, and the injured party may request that the law of the State where the act that
caused the damage be applied. If the illicit act involves only nationals of a State domiciled or
resident therein, then the law of this State is applied and the Responsibility for Damage by
Products is regulated at the discretion of the damaged party.
Chapter VI of the Venezuelan Law of Private International Law of 1998, entitled
"On Liabilities" and which refers to illicit acts, sets forth the following:
Illicit acts are governed by the law of the place where its effects are
produced. However, the victim may demand that the law of the State where the
cause that generated the illicit means be applied.
In this manner the rigidity of this point of connection is attenuated.
The sensitive nature of the topic of "Extracontractual Civil Responsibility" has led to
integrated spaces or integration systems occupying a particularly relevant place because
people find themselves impelled to circulate more continually and frequently within their
areas, which implies adopting common and uniform rules that ensure a framework of
security in making decisions and finding solutions.
In this regard, the Treaties of the European Union establish that: "in the matter of
Extracontractual Civil Responsibility, the Community must make reparation for damage
caused by its Institutions or Agents in performing their functions, in compliance with the
general principles common to the laws of the member States."
41
Within the sphere of Mercosur, the issue of Extracontractual Civil Responsibility is
dealt with especially in the San Luis Protocol that rules on the question of Civil
Responsibility in Traffic Accidents between the States Parties of Mercosur (Mercosur/CMC,
Dec. 1/96), where it is set forth that: "the responsibility for traffic accidents will be governed
by the internal law of the State Party where the accident took place," but at the same time
states that "if the accident involved or affected only people domiciled in another member
State, it will be ruled by the internal law of that State" and proceeds: "whichever law is
applied to responsibility, account will be taken of the regulations regarding circulation and
safety in effect in that place at the moment of the accident, these being norms that by their
nature cannot be supplanted by any means whatsoever."
This implies that when the parties are each domiciled in each one of the States Parties
of the convention, "the internal law of the State Party in whose territory the accident took
place" is applied, and when the parties are domiciled in another member State, "the internal
law of that State" is applied.
As we can see, the San Luis Protocol takes into account the socio-economic milieu
to which the parties belong, and there is some flexibility in the application of the points of
connection.
Within the sphere of The Hague Conference on Private International Law, we read
with regard to Extracontractual Civil Responsibility: "The Convention on the Law Applicable
to Traffic Accidents" of 1971 and the Convention on the Law Applicable to Products Liability"
of 1973, both of which are mentioned earlier, where the technique in both Conventions has
been to resort to the "Multiple Points of Connection," that is, the technique of "accumulating
connections."
Accordingly, article 3 of the Convention on the Law Applicable to Traffic Accidents
claims that:
The law to be applied will be the internal law of the State in whose
territory the accident occurred," a standard to which the following exceptions are
made, pursuant to article 4 of this Convention:
Article 4
Subject to Article 5, the following exceptions are made to the provision of
Article 3:
a) Where only one vehicle is involved in the accident and it is registered
in a State other than that where the accident occurred, the internal law of the
State of registration is applicable to determine liability
- towards the driver, owner or any other person having control of or an
interest in the vehicle, irrespective of their habitual residence,
- towards a victim who is a passenger and whose habitual residence is in
a State other than that where the accident occurred,
- towards a victim who is outside the vehicle at the place of the accident
and whose habitual residence is in the State of registration.
Where there are two or more victims the applicable law is determined
separately for each of them.
b) Where two or more vehicles are involved in the accident, the
provisions of a) are applicable only if all the vehicles are registered in the same
State.
c) Where one or more persons outside the vehicle or vehicles at the
place of the accident are involved in the accident and may be liable, the
provisions of a) and b) are applicable only if all these persons have their
habitual residence in the State of registration.
42
The same is true even though these persons are also victims of the
accident. 8
In a similar light, article 4 of the Convention on the Law Applicable to Products
Liability states:
The legislation applicable will be the internal law of the State in whose
territory the damage was done, in the case where that State is also:
the State of habitual residence of the person directly harmed, or
the State in which is located the main establishment of the person to
whom responsibility is imputed, or
the State in whose territory the product was bought by the person directly
harmed.
While in article 5 it is stated that:
Notwithstanding the provisions of Article 4, the applicable law shall be the
internal law of the State of the habitual residence of the person directly suffering
damage, if that State is also:
a) the principal place of business of the person claimed to be liable, or
b) the place where the product was acquired by the person directly
suffering damage. 9
As shown in The Hague Conventions, in essence the criterion of lex loci has been
used, attenuated by resorting to the multiple connection points when the elements of the
supposition are actually connected to another different system.
All of this indicates the need to use complementary connection points, since using
traditional criteria in practice presents serious difficulties, for example:
a) The elements of extracontractual responsibility are shared by territories
corresponding to various States, in which case it is necessary to determine
which of the co-existing legislations is the competent one,
The hypothesis of a legal act from which a sole extracontractual liability is derived
involves a series of acts distributed in places corresponding to various States, in which case
it can be claimed that the applicable law is that of the place where the principal activity is
carried out or else that of the place of the last occurrence. Now, if the place of the
extracontractual activity does not coincide with the place of the result, in this case the
applicable law can be claimed to be the law of the place where the act was committed, the
law of the place of the damage, and ­ currently - the option that the injured party has of
choosing between one of the two above.
b) The act from which the extracontractual responsibility derived is found to be
ruled by no legislation, as would be the case where the deed or the act from
which the extracontractual liability derives, occurs in territories not subject to the
sovereignty of any State. An example of this would be a maritime boarding at
high sea, in which case it is necessary to resort to a subsidiary legislative
competence, such as the law of the flag flown by the vessel.
This theme of Extracontractual Civil Responsibility has also already been dealt with in
several "international fora or meetings," including:
The Meeting of the Institute of International Law in Edinburgh in 1969, where it was
recommended that: "the principle of the lex loci delicti should be maintained, but that this
should be open to exceptions when the place of the offense is purely fortuitous, or when the
8
Recompilation of Agreements of The Hague Conference on International Private Law (1951-1993). Translation to Spanish, ed.
Marcial Pons, 1996.
9
Recompilation of Agreements of The Hague Conference, op. cit.
43
social environment of the parties is different from the geographical environment of the
offense."
It can be noted that the most significant contracts are privileged and that the
application of the traditional criteria is flexible.
In light of the above, we draw the conclusion that in the matter of applicable
legislation, the classic criteria such as unique and strictly applied connections often prove
insufficient and unsuitable.
This makes it necessary to use the classical rules in attenuated form, that is, by
making the methodology flexible and incorporating alternative solutions. These
include the notion that the judge should not decide in an absolutely discretional fashion but
rather based on (alternative) criteria that are clearly stipulated by the legislator and which
enable him or her to act in a reasonable manner and to adjust the general norm to the
requisites of substantive justice of the concrete case, thereby producing a connection that is
more significant to the situation in question.
IV. Competent Jurisdiction
Legislative and jurisdictional competence are in practice established "indissolubly,"
thereby constituting the unity that is the object of Private International Law with regard to the
conflict of laws, which implies a natural mutual interconnection.
In practice, this has led some States to tend to hierarchize the issue of opting for a
jurisdiction on the applicable law, in the understanding that the judge chosen will necessarily
apply the law of the State and thereby elect law and jurisdiction at the same time.
In the light of the above and in view of the fact that both categories respond to their
own principles, we nonetheless prefer to analyze them separately, seeing that it is necessary
to identify both the law applicable to controversial cases and the State before whose courts
the case should be presented.
In the Montevideo Treaties of 1889 and 1940, the issue of jurisdiction is regulated in
article 56 of both. That of 1889 establishes that: "Personal cases should be presented before
the judges of the place to whose law the juridical act involved in the case is subject. They
may also be presented before the judges of the defendanťs domicile."
In the 1940 Treaty, the matter is similarly regulated, that is, attributing competence to
the judges of the State where the licit or illicit deed was carried out, while the second clause
offers the plaintiff the option of presenting the case before the judges of the defendanťs
domicile.
The 1940 Treaty also states that "the territorial extension of the jurisdiction is granted
if after the action has been presented, the defendant admits it voluntarily, whenever it is a
case of actions involving personal patrimonial laws. The defendanťs will must be expressed
positively rather than artificially."
The Code of Private International Law of 1928 (the Bustamante Code), sets forth in
article 340 that: "to try and judge offenses and faults, the judges and courts of the
Contracting State where these have been committed are competent". Article 341 of the same
Code states: "Competence extends to all the other offenses and faults to which the criminal
law of the State must be applied in accordance with the provisions of this Code."
Article 7 of the San Luis Protocol, dealing with the question of civil responsibility
involved in traffic accidents among member States of Mercosur (CMC/Dec.1/96), sets forth
that: "For the purpose of presenting actions, the plaintiff will choose the competent courts of
the Party State:
1) where the accident took place;
2) of the defendanťs domicile; and
3) of the plaintiff's domicile."
44
In other words, the plaintiff chooses to whom to grant competence.
Both of The Hague Conventions on the Law Applicable to Traffic Accidents (1971)
and the Law Applicable to Products Liability (1973) establish in article 1 that legislative and
jurisdictional competence constitute in practice a unity and maintain a natural
interconnection.
Thus, article 1, clause 1 of the Convention of 1971 states that: "This Convention
determines the law applicable to extracontractual civil responsibility as a result of highway
traffic accidents, no matter what type of jurisdiction is assigned to try the case."
The 1973 Convention, also in article 1, clause 3, rules that: "This Convention will be
for application independently of the jurisdiction or authority that tries and judges the
litigation."
Article 19 of the 1993 Lugano Convention on Civil Responsibility for damage as a
result of activities dangerous for the environment establishes that: "Actions for
compensation will be subject to the jurisdiction of the State in which the damage was
perpetrated; where the dangerous activities were carried out or where the defendant has his
or her habitual abode."
Article 2 of the Federal Law of Switzerland declares: "The Swiss judicial or
administrative authorities of the domicile of the defendant are competent, save for special
provisions of the same law."
Article 3 speaks of a "forum of necessity:" "When the law provides for no jurisdiction
in Switzerland and it is deemed impossible to conduct a procedure abroad or it can not
reasonably be demanded that this procedure be carried out in another State, the Swiss
judicial or administrative authorities of the place with which the cause presents sufficient
connection are competent. Authorization is granted to extend competence and the tribunal
elected cannot decline it.
In the sector that regulates illicit acts, Swiss law contains a standard of a general
nature and another of a particular nature. Article 129 establishes that the Swiss courts of the
domicile, or in the absence of a domicile, those of the defendanťs usual abode or
establishment, will be competent for trying actions based on an illicit act. When the
defendant has no domicile or usual abode or establishment in Switzerland, the action may
be presented before the Swiss court of the place of the act or of the effect. If several
defendants can be investigated in Switzerland and if the pretensions are essentially based
on the same juridical deeds and motives, then the action may be presented against all
before the same competent judge; the judge who first intervened will enjoy exclusive
competence.
The attribution of competence in favor of the local "forum of necessity" has also been
adopted by the Law of Quebec, whose article 3136 sets forth that: "although a Quebec
authority is not competent to try a litigation, in the event of it being impossible to present an
action abroad or if it cannot be demanded that the action be introduced abroad, he or she
may assume competence if the question has a sufficient connection with Quebec."
That is, whenever it is impossible to set up a trial abroad, this circumstance will be
considered as a sufficient connection to initiate the action before the local courts, which is
what the doctrine calls the "forum of necessity" in favor of the local jurisdiction.
In view of the above, the most convenient thing to do in jurisdictional issues is to
present a series of options to the plaintiff. This would facilitate his access to justice,
taking into account that he is the victim who has suffered the damaging consequences of an
act or fact performed by the defendant.
45
V. Consideration of an international instrument on the law applicable and the
internationally competent jurisdiction regarding issues related to
extracontractual civil liability
It would be convenient for the Inter-American System to adopt a general regime
(Convention) to rule on Extracontractual Civil Responsibility, with a wide range of
application, in other words, that it would in principle regulate all those obligations that are
born without a Convention.
This instrument must strictly circumscribe to relations of a private nature (Civil
Responsibility), to the exclusion of the International Responsibility of the States.
An international instrument of this type will allow the arbiter to apply the right to qualify
an infinity of legal relations arising daily from the reality of life, and which would be
impossible for the legislator to foresee or regulate individually.
As this is a topic inherent to the conflict of laws arising in Private International Law, the
Convention must solve it by establishing an applicable law and a competent jurisdiction
concerning the claims filed by private individuals.
This regulation on the Law Applicable and the Competent International Jurisdiction
applies whenever the act that generated it occurred in a State Party and the damaging
effects resulting from it are produced or not in that same State or may cause effects on other
States Parties of the Convention.
Thus, the current solutions that have been proposed by the doctrine, jurisprudence
and comparative law must be taken into account, as their texts establish a flexibility and
attenuation of the classic or traditional criteria used and the adoption of multiple connections,
which would be alternatively applied taking into account the most significant connection
related to the case presented. This would empower the injured party to chose among one or
the other point of connection in order to point out the applicable law, which would allow the
judge to adjust the general norm to the requirements of substantive justice to the actual case
in a more reasonable rather than an arbitrary manner.
Similarly, when determining the competent jurisdiction, the plaintiff should also be
granted ­ taking into account that he/she is the victim of the damaging act ­ a series of
options to facilitate access to justice.
As such, both in the determination of the law applicable as in the competent
jurisdiction, the domicile may be considered the feasible point of connection. It is not
necessary to include in the international instrument under study an explanation that refers to
the concept of domicile, since the Inter-American scenario contains the Inter-American
Convention on the Domicile of Individuals of Private International Law dated 1979, which
regulates precisely the question of domicile.
It is also convenient that the text of the Convention should regulate matters related to
Objective Civil Liability, which is the one that applies to the perpetuator of the damage
regardless of his or her guilt, since for liability to exist, it suffices to place others in risk, as
compensation should be paid with one single damage caused.
This responsibility must contain the following elements:
The existence of a fault or blame, in other words, an illicit act;
The presence of the damage that must have a precise and personal nature;
The relation of causality between the illicit act and the damage.
The existence of damage is an essential factor of the compensation or reparation.
Although it is true that a convention of this nature would be a challenge for the InterAmerican
System, the regulation of specific areas or sub-categories wherein a progressive
46
development of Private International Law could be found would represent a greater
challenge, as its very specificity requires an independent regulation of its own, one more
suitable to its needs.
These areas could include those related to highway traffic accidents, the responsibility
of the manufacturer of the product, and transborder contamination.
With regard to highway traffic accidents and responsibility for products, the Hague
Conference on Private International Law rules on these in specific conventions already
referred to in this report: the Convention on the Law Applicable to Traffic Accidents, dated
1971, and the Convention on Law Applicable to Products Liability, dated 1973.
The Hague Conference opted for specific regulations, since in 1967 the Secretary
General of its Permanent Bureau mentioned the possible difficulty of establishing a general
regime for Extracontractual Responsibility, following the guidelines adopted by the
conventions in specific areas.
Within the framework of MERCOSUR, the issue of highway traffic accidents was
regulated through the San Luis Protocol for Matters of Civil Responsibility in Traffic
Accidents between the Mercosur States Parties which has been mentioned earlier.
Accordingly, both the Hague Conference on Private International Law and the
Delegation of Uruguay on the occasion of the Inter-American Specialized Conference on
Private International Law (CIDIP) have expressed their concern to establish a Law
Applicable to Civil Responsibility for damage caused to the environment as a specific subcategory
of Extracontractual Civil Responsibility.
At the Hague Conference this concern appeared in 1992 in a note sent by the
Permanent Bureau to the Conference's Special Commission for General and Political Affairs,
and which was taken up again at the Eighteenth Session of the Conference in June 1995,
when it was recommended to consider the theme on the Law Applicable to the Matter of
Responsibility for Damage Caused to the Environment. However, objections were made by
some countries who claimed that this was a complex theme related to highly sensitive
political questions.
At the Fifth Inter-American Specialized Conference on Private International Law
(CIDIP V) held in March 1994, the Delegation of Uruguay requested the inclusion of theme 4
related to other matters: "International Civil Responsibility for Transborder Contamination."
In Resolution No. 8/94 of this Conference, the recommendation was made for the General
Assembly of the OAS to incorporate into the Agenda of CIDIP VI the theme "International
Civil Responsibility for Trans-border Contamination: Aspects of Private International Law."
The theme was of course proposed in the two main fora in charge of the progressive
development of Private International Law, namely, the Hague Conference and the CIDIP,
because of the importance that environmental contamination currently has in the scope of
this Law, seeing that its harmful effects not only jeopardize people and their property but also
deeply affect the economy in this sense that environmental contamination knows no
frontiers.
As regards all that has been presented in this report, we conclude that it is convenient
that the Inter-American System should adopt a convention that rules on the topic of
Extracontractual Civil Responsibility in broad and general terms. A Convention of this nature
could later produce other Conventions relating to the various sub-categories.
In this sense the Inter-American Draft Convention on Applicable Law and
Internationally Competent Jurisdiction on matters of Extracontractual Responsibility
prepared and presented by the Delegation of Uruguay on the occasion of the Inter-American
Specialized Conference on Private International Law (CIDIP-VI) and circulated in document
OEA/Ser.K/XXI.6, CIDIP-VI/doc.16/02, 4 February 2002, in Spanish, regulates the themes
we have mentioned in accordance with the current tendency of Private International Law.
That is, flexibilization and attenuation of the classic or traditional criteria are recommended,
as well as adopting multiple connections to be applied alternatively, taking into account the
47
"most significant connection" and offering the judge the option concerning the victim or
injured party, as reflected in article 2 of the Draft, on establishing the Applicable Law:
The applicable law will be at the judge's discretion according to what is most favorable
to the injured party [or according to the plaintiff's option], that of the State Party:
a) where the act producing the responsibility was performed, or
b) where the damage was perpetrated against the injured party as a result of this
act, or
c) where the involved parties have their common domicile.
Likewise, when the Competent Jurisdiction is regulated, a series of options are offered
to the plaintiff to make access to justice easier (Article 4 of the Draft).
This more flexible methodology by incorporating alternatives presented by the Draft
and enabling the judge to choose based on criteria clearly set down by the legislator, will
allow him or her to act in a reasonable manner and adjust the general standard to the
requisites of the substantive justice of the concrete case, thereby creating a more significant
connection to the situation, and also taking into account the socio-economic context to which
the parties belong.
In this sense, Article 4 of the draft declares:
The courts competent for actions founded on this Convention, at the option of the
plaintiff, will be:
a) those of the State Party where the act that caused the damage was performed,
b) any of the States Parties where the damage resulting from this act was caused,
c) the State Party where the plaintiff or defendant have their domicile, usual abode
or commercial establishment.
With regard to the scope of application, Article 1 of the Draft answers the
expectations required of this type of Convention, being broad enough to include
extracontractual liabilities in general, that is, all those liabilities born without a Convention,
including offenses, quasi offenses and quasi contracts.
The Draft also incorporates material relating to Civil Responsibility and its effects, to
be regulated in accordance with the law that proves applicable in article 2 of the Draft, such
as established in Article 3 of the Draft, which reads:
The law that proves applicable to civil responsibility, in accordance with
the previous article, will regulate on the following, among others:
a) the conditions and scope of responsibility,
b) the causes of exoneration, the limits and distribution of responsibility,
c) the existence and nature of repairable damage,
d) the forms and amount of indemnity,
e) [transmissibility of the right to indemnity],
f) subjects liable to indemnity,
g) [the responsibility of the commissioner because of his or her position] and
h) prescription and lapsing.
Article 5 of the Draft refers to "General Provisions," which are drawn up according to
the standards of the Inter-American Conventions.
Concerning the formal aspects of the Draft, we suggest that the themes be divided by
title rather than in articles, so that the Draft Convention will bear the following titles: Scope of
Application; Applicable Law; Aspects regulated by the Applicable Law; Competent
48
Jurisdiction and General or Final Provisions. Another suggestion is that the beginning should
include the corresponding Exposition or Consideration Part of the Convention.
Finally, this report, being mindful of the current importance of the theme of
Extracontractual Civil Responsibility within Private International Law and the need to regulate
it, recommends that all necessary efforts be made for the Inter-American System to have a
General Convention that regulates Applicable Law and Competence of International
Jurisdiction regarding Extracontractual Civil Responsibility, taking as a fundamental basis the
draft presented by the Delegation of Uruguay at the Sixth Inter-American Specialized
Conference on Private International Law (CIDIP-VI) held 4 to 8 February 2002 in
Washington, D.C.. The recommendation is also made that work be later carried out on
preparing international instruments to rule on specific sub-categories, mainly those relating
to Traffic Accidents, Responsibility for Products and Transborder Contamination.
CJI/doc.104/02 rev.2
THE DESIRABILITY OF PURSUING THE NEGOTIATION OF
AN INTER-AMERICAN INSTRUMENT ON CHOICE OF LAW AND COMPETENCY OF
INTERNATIONAL JURISDICTION WITH RESPECT TO NON-CONTRACTUAL CIVIL
LIABILITY: A FRAMEWORK FOR ANALYSIS AND AGENDA FOR RESEARCH
(presented by Dr. Carlos Manuel Vázquez)
On May 1, 2002, the Permanent Council asked the Inter-American Juridical
Committee to consider the desirability of embarking on the negotiation of an inter-American
instrument addressing jurisdiction and choice of law in the area of non-contractual liability.
The Committee has designated as rapporteurs of this topic Dr. Ana Elizabeth Villalta
Vizcarra and the undersigned.
This report proposes a framework for analyzing the question posed to the Committee,
as well as an agenda for the research that will have to be conducted before the Committee
will be in a position to draw any conclusions. The Permanent Council has asked that the
Committee's report be submitted "as soon as practicable." Given the complexity of the
subject and the need for an in-depth study, the Committee should endeavor to complete its
report at its 63rd
regular session in August of 2003.
The question posed to the Committee should not be understood as a simple binary
choice, demanding a yes-or-no answer. A great variety of options should be considered. The
Committee could conclude that an instrument on jurisdiction should be pursued but not a
convention on choice of law, or vice versa. It could conclude that it would be unwise to
pursue a general instrument on jurisdiction or choice of law for all forms of extra-contractual
liability, but that an instrument on jurisdiction or choice of law should be pursued for specific
torts. It could conclude that it would be preferable to pursue a model law on one or more of
these subjects, as opposed to a convention. It would be well within the scope of the mandate
for the Committee to endorse any of these projects, or others. Of course, the Committee
could also endorse the negotiation of a general instrument on jurisdiction and choice of law
for torts, or conclude that neither a general nor a specific convention nor a model law should
be pursued.
Before proceeding to propose a framework for analysis, it is necessary to clarify the
nature of the question posed. The question, as I understand it, is not whether it would be
desirable to have an inter-American convention unifying the law of jurisdiction and choice of
law in non-contractual disputes within the hemisphere. Answering that question is
comparatively easy. It is apparent that national laws regarding these subjects are not already
uniform within the hemisphere. There appears to be no benefit to disuniformity in the fields of
jurisdiction and choice of law. In this respect, it is useful to draw a distinction between the
law of jurisdiction and choice of law, on the one hand, and substantive areas of law, such as
49
the law of torts or the law of contracts, on the other. With respect to substantive law, a lack of
uniformity is not in itself necessarily a bad thing. Theories of federalism and subsidiarity are
premised on the idea that it is good for people to be governed at the level of government
closest to them. Disuniformity in substantive law is the price we pay for that benefit. The
benefits of local governance will sometimes be outweighed by the need for uniformity in
certain areas of substantive law, but assessing this trade-off will often be difficult.
Disuniformity in the law governing international jurisdiction and choice of law,
however, cannot be justified as the corollary of the benefits of local governance. By
definition, the law of jurisdiction and choice of law applies only when a dispute has
connections with more than one State. Usually, the disputes involve people from different
States. By hypothesis, at least one of the parties will not be governed by the government
closest to him; he will be governed instead by foreign courts or foreign law. In short, the
benefit of local governance does not provide a good justification for disuniformity in the law
of jurisdiction and choice of law because, by its nature, this law applies only to non-local
disputes. There appears to be no inherent benefit to disuniformity in international jurisdiction
and choice of law.
On the other hand, there are significant costs to disuniformity in the law of jurisdiction
and choice of law. If different States follow different approaches to determining the
applicable law, and a plaintiff has the choice of more than one forum in which to litigate his
claim, then the applicable law will not be known until the forum is chosen. Disuniformity in
choice of law thus creates uncertainty in legal relations. Such disuniformity
frustrates rational planning. Parties cannot know when they act what law
governs their behavior, for that depends upon post-act events such as the
plaintiff's choice of forum. Granted, not every act that gives rise to a lawsuit is
planned in advance, but some are. Institutional actors, for example, must decide
how much to invest in making their activities safer, and what activities to avoid
because the liability risks exceed the benefits. And even acts that are not
planned are often insured against in advance. There are significant costs when
actors -- especially risk-averse actors -- are forced to make decisions without
knowing what law governs their actions.1
Disuniformity in jurisdiction similarly produces legal uncertainty. Because States
generally will enforce judgments only if the judgment was rendered by a State that, in its
view, had jurisdiction over the case, disuniformity in jurisdictional rules results in judgments
rendered by one State often not being enforceable in the courts of other states.
In view of the costs of disuniformity in jurisdiction and choice of law and the lack of any
counterbalancing benefits, it seems evident that it would be desirable to have a uniform
approach to jurisdiction and choice of law in the hemisphere.2
This, however, is only a part of the question before the Committee. The question
posed to the Committee is whether the OAS should embark upon the negotiation of an interAmerican
instrument unifying this subject, or some portion of it. This is ultimately a question
of allocation of resources. If a binding instrument unifying the law of jurisdiction and choice of
law in the hemisphere could be achieved at no cost, the hemisphere would almost certainly
be better off with such an instrument than without one. But achieving an agreement on such
an instrument is not a costless enterprise. Indeed, there is no guarantee that, once the costs
are incurred, an agreement will ultimately be reached. This Committee is, of course, in no
position to judge whether the effort to negotiate such an instrument is more deserving of
Organization's resources than other pressing matters. We can, however, help the
appropriate organs of the Organization make that judgment by examining several important
1
GOTTESMAN, Michael. Draining the dismal swamp: the case for federal choice of law statutes. 80 GEO.L.J. 1, 11 (1991).
2
Another reason sometimes given for preferring divergent local laws is that this permits local experimentation, and that such
experimentation is necessary to permit the best solution to a particular legal problem to emerge. With respect to torts in general,
there have already been centuries of experience with divergent approaches to jurisdiction and choice of law. It is unlikely that
new approaches will emerge at this late date. However, with respect to particular subfields of torts, such as those occurring on
the internet, there may well be a need for further experimentation at the national level.
50
questions: First, how severe is the problem attributable to the diversity of approaches
currently being followed in the hemisphere concerning jurisdiction and choice of law?
Second, how likely is it that this problem will be corrected, without expenditure of OAS
resources, or that a satisfying solution has already been found by other entities working on
the topic? Finally, if a satisfactory solution is not produced by other entities, how likely is it
that a satisfactory solution will be found at the inter-American level?
What follows is an outline of the issues that will have to be examined to produce
answer to those three fundamental questions. I shall begin by discussing the questions
relevant to an inter-American instrument on choice of law for non-contractual obligations.
Thereafter, I shall address the questions relevant to an inter-American instrument on
jurisdiction in disputes about non-contractual obligations.
I. What Sorts of Legal Obligations Fall Within the Scope of "Non-Contractual
Obligations"?
To assess the severity of the problem that would be addressed by an inter-American
instrument on jurisdiction and choice of law in the area of non-contractual liability, and the
likelihood that an agreement can be reached on a solution, the first necessary task is to
consider the variety of different subjects that fall within the field of non-contractual liability.
Defining of the scope of the field and examining the various types of claims that fall within it
is relevant to a number of the questions that will have to be considered in reaching a
conclusion about the feasibility of an instrument and about the sort of instrument that would
be desirable. For example, an instrument establishing general principles broadly applicable
to all claims within the field would appear to be less suitable if the field is broad and includes
diverse sorts of claims. Furthermore, the negotiation of such an instrument would appear to
be far more risky politically if the field includes numerous diverse sorts of claims, as the
views of a very large number of interest groups would have to be taken into account and
accommodated during the negotiation and ratification processes.
The field of non-contractual liability appears to be very broad indeed, covering literally
all forms of liability that are not based on a contract. In a report prepared in 1967 considering
the feasibility of pursuing the negotiation of a general convention on jurisdiction and choice
of law in cases of non-contractual liability, The Hague Conference on Private International
Law illustrated the breadth and diversity of legal claims that fall within this field by offering a
partial list of the sorts of claims that it encompasses. The Hague Conference noted that,
besides the well-known torts, the list of non-contractual obligations included such diverse
obligations as those of fiancés and married couples towards each other, the responsibilities
of natural fathers towards their offspring (e.g., paternity actions), business torts,
compensation for accidents in the workplace, claims based on accidents at sea, rail, or
roads, and in the air, products liability, and claims against public officials. I might add that
each of these categories itself includes a number of different sorts of claims. The category of
business torts, for example, includes copyright and trademark infringement, patent
infringement, theft of trade secrets, interference with contract or with prospective contractual
relations, unfair competition, not to mention illegal restraints of trade and other obligations of
cartels and monopolies.
The Hague Conference concluded in 1967 that a general convention addressing the
law applicable to all non-contractual obligations was not feasible because of the wide
diversity of subjects falling within this field. It instead pursued a series of more specific
conventions on particular subcategories of non-contractual claims, such as traffic accidents
and products liability.3
Since 1967, the field has grown even more diverse. Technological
advances have produced entirely new categories of torts, such as the business torts of ecommerce.
The torts themselves are familiar, but the e-commerce context has required
novel legal solutions. The harmonization of approaches to jurisdiction in the e-commerce
field has proved to be an intractable problem. Lack of agreement with respect to this issue
has almost single-handedly killed the proposed Hague Convention on Jurisdiction and
3
DUTOIT, Bernard M. Mémorandum relatif aux actes illicites en droit international privé (Secrétaire du Bureau Permanent). In:
Actes et documents de la Onzime session, 7 au 26 octobre 1968. t.3. La Haye: Bureau Permanent de la Conférence, 1970.
51
Enforcement of Judgments. Although the effort continues, the most likely result will be a
narrower convention covering only physical-injury torts.
In addition, there has been legislative activity in many countries producing wholly new
categories of non-contractual claims. In the United States, for example, the federal and state
legislatures have been active in enacting new laws imposing civil liability for discrimination
on the basis of race, gender, religion, nationality, disability, and other characteristics.
Statutes have also been enacted imposing civil liability for sexual harassment and other
offensive workplace conduct. Other "new" torts that have emerged in the North American
legal system include loss of consortium, wrongful interference with the doctor-patient
relationship, pharmacy malpractice, borrower harassment, and lender liability.
The preparation of a list of non-contractual obligations recognized in the hemisphere is
thus a necessary first step. Such a list should not be too difficult to produce.
II. Choice of Law
The Permanent Council has specifically instructed the Committee to consider whether
we regard it as advisable to pursue the negotiation of some instrument unifying choice of law
in the hemisphere with respect to non-contractual disputes. It has also specifically asked us
to "identify specific areas revealing progressive development of regulation in this field
through choice of law solutions", and to conduct "a comparative analysis of national norms
currently in effect". This section sets forth a framework for analyzing this set of questions and
an agenda for further research.
A. The Nature and Severity of the Problem
1. How Divergent Are the Substantive Laws in the Hemisphere Regarding NonContractual
Obligations?
Choice of law issues can arise in disputes having connections to more than one state
if the laws of the relevant states differ with respect to some aspect of the claim. Therefore, in
quantifying the severity of the problem that would be addressed by an instrument unifying
choice of law in the hemisphere for non-contractual disputes, the first question that presents
itself is: To what extent do the laws of the hemisphere governing non-contractual liability
differ? Answering this question would, of course, be an immense undertaking. Given the
breadth of the category of non-contractual liability, it is probably safe to assume that there is
a significant degree of divergence among the substantive laws of the hemisphere with
respect to many forms of non-contractual liability. The fact that the hemisphere includes both
common-law and civil law legal systems is probably sufficient to guarantee a significant
degree of diversity. In fact, as those of us from federal systems can attest, there is a
significant degree of diversity in the laws governing non-contractual liability even among
common law and among civil law states. We should therefore proceed under the assumption
that there is a significant degree of diversity among the substantive laws governing noncontractual
obligations in the hemisphere.
2. How Divergent Are the Choice of Law Approaches Followed in the Hemisphere
in Non-Contractual Disputes?
The next question is the extent to which the approaches to choice of law in noncontractual
disputes differ within the hemisphere. An instrument unifying such law would, of
course, be necessary only if there were disuniformity among Member States in the way they
handle conflicts of substantive law. Here again, we can safely assume that a significant
amount of disuniformity exists. Just within the United States, seven different approaches to
choice of law are followed by the various sister states. Twenty two states follow the "most
significant relationship" test of the Second Restatement; ten states follow the traditional lex
loci delicti rule; five states follow the "better law" approach; three states follow interest
analysis; three states follow the "significant contacts" approach; and three states apply the
lex fori.4
Thus, even if the choice of law approaches followed in the remainder of the
4
See SYMEONIDES, Symeon C. Choice of law in the American courts in 2000: as the century turns. 49 AM.J.COMP.L. 1, 13
(2001).
52
hemisphere were perfectly uniform, an inter-American instrument unifying choice of law in
international cases would be useful if the United States were a party if only because it would
unify the choice of law approaches followed by courts in the United States in international
cases. The reality, of course, is that there is significant diversity among the approaches
followed by the other states of the hemisphere as well.
Nevertheless, a thorough survey of the choice of law approaches followed in the
hemisphere cannot be avoided for several reasons. Such a study is required, first, because
we are not merely seeking some assurance that there is enough disuniformity to make the
expenditure of resources on this project worthwhile; we are also seeking assurance that the
extent and nature of the diversity that exists in the hemisphere is not so great as to make it
unlikely that an agreement will ultimately be reached on a uniform approach. A thorough
description of the various approaches followed in the hemisphere is also necessary to give
us some indication of the approaches that will be contending for adoption if and when the
time comes to draft an instrument. Third, an understanding of the experience of the Member
States with the approaches they have used will be important if and when the time comes to
select among the contending approaches. Finally, the CIDIP resolution, which the
Permanent Council has instructed us to treat as a guideline, specifically calls for "a
comparative analysis of national norms currently in effect".
For certain Member States, the survey must focus on the law of subnational units.
That is the case with respect to the United States, where choice of law is generally governed
by the laws of the sister states, even in international cases.
The survey should also consider the extent to which states apply different approaches
to choice of law with respect to different categories of non-contractual liability. This analysis
will be of central importance in examining the question whether a general convention on
choice of law for non-contractual obligations is feasible. A wide divergence in the choice of
law approaches employed by states for the diverse categories of non-contractual obligations
would of course make it less likely that the field can be successfully addressed in a single
general convention. The analysis of the choice of law approaches employed by states in the
various subcategories of non-contractual liability will also be important to determining which
of those subcategories is suitable for a narrower convention, should we conclude that a
general convention is infeasible or otherwise inadvisable. As the Permanent Council has
suggested, the suitability of a subcategory of non-contractual obligation for treatment in a
choice of law instrument will depend upon the degree of harmony that has been reached
among the states of the hemisphere with respect to choice of law within that subcategory.
Too wide a divergence of approaches to choice of law in a given subcategory would indicate
that the field is not ripe for treatment in an inter-American instrument.
Ideally, the survey should also discuss the historical experience of the various
Member States whose approaches to choice of law have evolved over the years. For
example, the United States' experience regarding choice of law in tort cases may be
instructive:
In the United States, choice of law in torts was once governed in virtually all states by
the traditional lex loci delicti rule, as set forth in the First Restatement of Conflict of Laws.
The First Restatement approach was severely criticized in the early part of the XXth
Century
as being excessively formalistic and producing arbitrary and unjust results. The famous 1963
decision of the New York Court of Appeals in Babcock v. Jackson5
initiated a choice-of-law
revolution. State after state abandoned the traditional rule and adopted one or another
version of interest analysis. The central idea behind interest analysis is that the choice-of-law
issue involves, as a threshold matter, a determination of which of the various states whose
laws are contending for application have an interest in having their law applied in a given
case. For example, if a state's law places limits on recovery, courts engaging in interest
analysis typically conclude that the state has an interest in applying such law only if the
defendant is a domiciliary of that state, because the purpose of a law limiting liability is to
protect defendants and presumably the state only has an interest in protecting defendants
5
191 N.E. 2d. 179 (N.Y. 1963).
53
who are domiciliaries. If only one state has an interest in applying its law, then we have a
false conflict, and the law of the only interested state should be applied. If more than one
state has an interest in applying its law, then we have a true conflict and some mechanism is
required to resolve the conflict. A number of different approaches have been proposed by
scholars and adopted by states to resolve true conflicts. Under one approach, the forum
would always apply its own law. Under another approach, the court would apply the law of
the state whose policy would be impaired to a greater extent if it were not applied to the
case. Under still another approach, the court would apply the law that it regarded as the
better law on the merits.
In the 1970's, the American Law Institute drafted the Second Restatement of Conflict
of Laws, which sets forth an eclectic approach, according to which the law that applies is the
law of the state that has the "most significant relation" to the issue on which the laws diverge,
an approach that resembles the British "proper law" approach. The Second Restatement
sets forth a non-exhaustive list of factors that should be taken into account by the court in
determining which state has the most significant relationship. Courts are thus given wide
discretion to apply the law that they regard as most appropriate in any given case. The
Second Restatement approach has been popular among courts, which is not surprising, as
courts can be expected to be attracted to an approach that leaves them with virtually
unfettered discretion. But the Second Restatement has not achieved state-wide acceptance.
Indeed, fewer than half of the states (22) have adopted the Second Restatement approach.
A number of others apply one or another version of interest analysis, and ten states continue
to adhere to the traditional lex loci delicti rule.
The modern approaches have been subjected to severe scholarly criticism because
they provide no certainty or predictability in legal relations. Professor Michael Gottesman has
succinctly described the disadvantages of this approach:
The system is wasteful. In the states that have adopted one of the
modern choice of law approaches, the parties may litigate at length over the
application of indeterminate criteria such as the "interests" that are to control
under interest analysis or the combination of interests and contacts that are to
be consulted under the second Restatement ... This is both expensive and timeconsuming.
What is more, after the parties have expended resources litigating
the issue before the trial court, and that court has ruled that the law of State A
controls, the ensuing trial may prove wholly useless if the appellate court later
determines that the choice of law was error and State B's law controls.6
Critics of the modern approaches prefer a more determinate rule that resembles lex
loci delicti. On the other hand, the approaches to choice of law that produce determinate
results are often criticized as producing arbitrary or unjust results. Many scholars believe that
certainty and predictability in the field of choice of law can only be gained at the expense of
justice and fairness in individual cases. The debate between proponents of choice of law
rules that produce determinacy and defenders of choice of law approaches that produce fair
and just results has been a perennial one in the United States. The debate would
undoubtedly reproduce itself in the context of the negotiation of an inter-American instrument
seeking to unify choice of law.
The choice of law experience in the United States illustrates not only the severity of
the problem in microcosm, but also the difficulty of achieving a solution. The current situation
is widely regarded as chaotic. William Prosser, the author of the famous Treatise on Tort
Law, has written:
The realm of the conflict of laws is a dismal swamp, filled with quaking
quagmires, and inhabited by learned but eccentric professors who theorize
about mysterious matters in a strange and incomprehensible jargon. The
ordinary court, or lawyer, is quite lost when engulfed and entangled in it.7
6
GOTTESMAN, Michael. Draining the Dismal Swam: The Case for Federal Choice of Law Statutes, 80 GEO. L.J. 1, 11 (1991).
7
PROSSER, William. Interstate Publication, 51 MICH L. REV. 959, 971 (1953).
54
Prosser wrote those words before the choice of law revolution. Since that time, the
situation has gotten much, much worse. Scholars have called for Congress to step in and
enact a federal choice of law statute that would apply uniformly throughout the state, as it
clearly has the power to do.8
Others have called for the elaboration of a model choice of law
statute, to be adopted by the state legislatures.9
Others have argued that, at the very least, a
Third Restatement should be drafted.10
None of this has come to pass.
The reasons for this failure may be relevant to the question whether agreement can be
reached at the Inter-American level. It certainly bears on whether sufficient support for a
single approach can be mustered within the United States to enable the United States to
adhere to such an instrument. There are a number of possible reasons for the persistence of
the clearly unsatisfactory state of choice of law in the United States. Congress' failure to
address the matter is no doubt caused by the great number of important matters competing
for a place on its agenda. Choice of law is a relatively esoteric problem that the vast majority
of voters have absolutely no cognizance of. Additionally, the failure of Congress to act may
reflect the view that this field is properly left to the states, which have traditionally dealt with
the subject. The explanation for the failure of the Uniform Law Commission to pursue a
uniform [i.e., model] law in the area of choice of law is less obvious. It may reflect political
impasse, with the trial lawyers' association fighting for a rule that helps plaintiffs, and
corporations and other likely defendants fighting for a contrary approach. It may reflect the
belief that the choice of law problem is intractable, and that it is accordingly more promising
to tackle the problem of disuniformity by attempting to harmonize substantive laws in various
fields. In any event, the reasons for the United States' failure thus far to address the problem
of choice of law in torts despite the fact that it is widely regarded as a dismal swamp would
appear to be relevant to the question whether the attempt to attain a general or specific interAmerican
instrument on the topic would be likely to succeed. The survey should thus also
address the reasons for this failure.
In summary, an in-depth survey of the approaches that have been followed over the
years by the various states of the hemisphere (and subnational units, where relevant), is
necessary to permit us to assess the severity of the problem that would be addressed by an
Inter-American instrument unifying choice of law for non-contractual disputes in the
hemisphere. Such a survey would also help us determine whether agreement is likely to be
reached on a uniform solution, and to identify the most promising solution.
The sort of survey that I propose here would be, without doubt, an enormous
undertaking. Especially burdensome would be the attempt to describe the approaches used
by the states of the hemisphere (and subnational units, where relevant) with respect to the
numerous categories of non-contractual obligations. The rapporteurs would have to count on
assistance from the Secretariat of Legal Affairs and perhaps others. If a survey of the
hemispheric approaches to choice of law with respect to all of the categories of noncontractual
obligations is regarded as infeasible in light of resource constraints, the survey
could perhaps be limited to those categories that have given rise to the greatest number of
international disputes in which choice of law has been at issue. I should note, however, that,
if such a broad study were infeasible, this very fact would itself be a reason for concluding
that a general instrument regulating choice of law for all such categories is imprudent. It
would be foolhardy to propose a general instrument regulating choice of law in all such fields
if we lacked the resources or wherewithal to study how the numerous types of obligations
would be affected by such an instrument. Instruments whose adoption would require a leap
of faith tend not to be adopted and, if adopted, not ratified.
One the other hand, we would be justified in limiting our survey to selected categories
of non-contractual obligations if we concluded after a preliminary analysis, such as that
undertaken by The Hague Conference in 1968, that a general convention addressing choice
of law for all non-contractual disputes would be infeasible. The enormous cost of the
8
GOTTESMAN, Michael. Op.cit; BAXTER, William F. Choice of law and the federal system. 16 STAN. L. REV (1963).
9
E.g., KRAMER, Larry. On the need for a uniform choice of law code. 89 MICH.L.REV 2134 (1991).
10
E.g., SYMEONIDES, Symeon C. The need for a third conflicts restatement (and a proposal for torts conflicts). 75 IND. L. J. 437
(2000).
55
preparatory work that would be necessary to justify embarking on the negotiation of a
general convention may itself be a sufficient reason to conclude that the negotiation of such
a convention is inadvisable.
3. The Nature and Severity of the Harm Sought to Be Addressed
Finally, assessing the potential benefit of an Inter-American Convention on Choice of
Law for non-contractual claims requires not just a determination of the degree of
disuniformity in the existing approaches to this issue in the hemisphere, but also a judgment
about the severity of the problem caused by such disuniformity. This requires, first,
identification of the nature of the harms caused by disuniformity in choice of law approaches,
and a judgment about how severe that harm is in the context of claims for non-contractual
liability.
The costs of disuniformity in choice of law was addressed above. Such disuniformity is
thought to be harmful because it produces uncertainty in legal relations. If different states
apply different choice of law rules to determine the legal consequences of a given act having
international connections, the persons involved cannot know in advance the extent to which
such acts will give rise to liability. The law that applies cannot be known without knowing
what the forum is. If more than one forum has jurisdiction, the plaintiff will determine the
applicable law by choosing the forum. This produces the phenomenon of forum-shopping,
which many though not all commentators regard as undesirable. For the persons involved,
such a situation is thought to produce legal uncertainty. Moreover, since the plaintiff can be
expected to choose the forum that will apply the most favorable law, such diversity tends to
produce a trend towards more expansive liability. This trend tends to nullify the public
policies of the states that favor less expansive liability.
Once the harms produced by disuniformity in choice of law are identified, the question
becomes whether these problems are of concern in the field of non-contractual liability. The
need for legal certainty, for example, is thought to be most important for contractual matters,
as people rely on the applicable law in structuring their transactions. Because people do not
generally plan to have accidents, the need for legal certainty is arguably less pressing in the
field of non-contractual liability addressing liability for accidents. On the other hand, people
do buy insurance to protect themselves against the risk of non-contractual liability. Insurance
companies rely on the applicable law in setting their rates. The uncertainty produced by
divergent choice of law rules may produce higher insurance premiums if insurance
companies structure their premiums on the assumption that disputes will be governed by the
law most favorable to the claimant.
An in-depth analysis of the reasons disuniformity in choice of law is thought to be
problematic, and the extent to which such harms are matters of concern in the field of noncontractual
liability, is necessary not just to assess the extent of the problem that would be
addressed by an inter-American instrument, but also to provide a yardstick against which to
measure any proposed solution. If the problem sought to be addressed by an instrument
unifying hemispheric approaches to choice of law is the uncertainty and unpredictability of
legal relations produced by disuniformity, then the instrument we propose (if we decide to
propose one) should adopt an approach to choice of law that offers certainty and
predictability. As I mentioned above, the modern approaches to choice of law followed in the
United States have been severely criticized by scholars because they dispense entirely with
certainty and predictability. They are so indeterminate that it is impossible to know which law
governs one's conduct until well after one has acted, when the judge decides post hoc which
legal rule one was supposed to have complied with. If the point of law is to guide human
conduct, then indeterminate choice of law rules seem fundamentally incompatible with the
rule of law.
In any event, if the contemplated instrument seeks to correct the problem of
disuniformity because of the lack of certainty and predictability caused by such disuniformity,
then the uniform adoption of an indeterminate choice of law rule would do little or nothing to
correct the problem. Indeed, the uniform adoption of an indeterminate approach to choice of
law in the hemisphere could well make matters worse.
56
On the other hand, as already noted, determinate approaches to choice of law are
often criticized because they sometimes produce arbitrary and unjust results. I suppose it is
possible that an inter-American instrument might be desired not for the purpose of achieving
uniformity as such, but rather for the purpose of finally getting rid of the traditional lex loci
delicti approach to choice of law that continues to prevail in some states, and thus to
eliminate the arbitrary and unjust results sometimes produced by that approach. It seems
quite odd, however, to promote an international instrument unifying the law of choice of law
in the hemisphere for the purpose of decreasing the certainty and predictability in legal
relations that is so conducive to international commerce. I do not mean to suggest that
fairness and justice should be entirely sacrificed for the sake of certainty and predictability.
The challenge is to find a middle ground ­ to find an approach that offers a significant degree
of certainty and predictability while providing tolerably fair and just results overall. This has
been the aim of United States choice of law scholars for the past decades. After the
pendulum swung from one extreme to the other, scholars (and some courts) have been
seeking a middle ground, but without discernable success. Most likely, a choice will
ultimately have to be made about whether the primary concern in choice of law should be
promoting certainty or predictability in legal relations or enabling courts to achieve fairness
and justice in individual cases.11
In any event, the question for the Committee is whether a
satisfactory middle ground is more likely to be found at the inter-American level in a general
convention or in a series of more specific conventions. My tentative view is that the middle
ground will be achieved through somewhat different approaches in the disparate categories
of non-contractual obligations and that, accordingly, narrower instruments will be more likely
to achieve that goal.
B. Past and Ongoing Efforts of Other Organizations
The next task is to consider the past and ongoing efforts of global and regional
organizations that have undertaken attempts to unify choice of law for non-contractual
disputes. If past efforts of such organizations have failed, the reasons for their failure may
prove instructive. If past efforts of global organizations have succeeded in producing
instruments in this field, but states of the hemisphere have not become parties, it is
necessary to determine the reasons for such lack of ratification. It may be the case that the
solution to the problem is simply to urge the ratification of existing global instruments. If the
states of the hemisphere have failed to ratify because they regard the instruments as
unsatisfactory, it is important to know why they have been dissatisfied. If past efforts of
regional organizations have succeeded, the resulting instruments might provide a useful
model for an inter-American instrument. Finally, if the efforts of global organizations are
ongoing, it may be prudent to await the results of such efforts before proceeding with an
effort to negotiate an inter-American instrument. Many of the hemisphere's states are
Members of such organizations and participate actively in their work. Even those who do not
participate stand to benefit from the work of the global organizations, as the instruments they
produce are generally open for signature by all states. Similarly, if other regional
organizations are undertaking efforts on the same subject, the instruments they adopt might
serve as useful models for an inter-American instrument; and their failure to reach
agreement on any instrument might bode ill for the prospects of success in the Americas.
As already noted, The Hague Conference has studied the desirability of pursuing the
negotiation of a convention on choice of law in the area of non-contractual liability. It
concluded in 1968 that, given the broad diversity of subject-matter and legal claims
encompassed within the field of non-contractual liability, a single general convention
addressing choice of law in this field was infeasible. The Conference decided instead to
pursue narrower conventions on choice of law for specific topics. In 1971, The Hague
Conference adopted a Convention on the Law Applicable to Traffic Accidents, and in 1973, it
adopted a Convention on the Law Applicable to Products Liability. Both Conventions are in
force. Nineteen states are parties to the Convention on Traffic Accidents, and thirteen are
11
I should emphasize that the sort of justice to which I am referring here is not substantive justice. In other words, I am not
suggesting that judges should be free to apply whatever substantive rules they believe are most fair and just. Rather, I am
referring to what is known as "conflicts justice," that is, fairness with respect to which of various contending laws should govern a
particular dispute. See generally JUENGER, Friedrich K. CHOICE OF LAW AND MULTISTATE JUSTICE (1993).
57
parties to the Convention on Products Liability. However, none of the states of this
hemisphere is a party to either of the two conventions. It is important to determine whether
the reasons that led The Hague Conference to conclude that a general convention was
infeasible at the global level are convincing and applicable as well at the inter-American
level. It is also important to determine why the two specific conventions have not been
ratified by any states of this hemisphere.
At the regional level, the European Union has sporadically attempted to codify choice
of law with respect to non-contractual obligations. In the early 1970's, the European
Community produced a Draft Convention on the Law Applicable to Contractual and NonContractual
Obligations. Articles 10-14 set forth rules on choice of law for non-contractual
obligations, taking an approach that resembles that of the Second Restatement in the United
States. The provisions of the draft convention relating to contractual obligations were
adapted into the Rome Convention on the Law Applicable to Contractual Obligations of June
19, 1980. Work on a convention in relation to the law applicable to non-contractual
obligations lay dormant until the Groupe Européen de Droit International Privé, an
association of prominent scholars, completed a proposal for a Convention on the Law
Applicable to Non-Contractual Obligations (which formed the basis for the Green Paper that
became known as "Rome II"). The proposal was sent to the Secretariat General of the
European Council, which set up a working group on the matter. After much delay, primarily
attributable to controversies having to do with e-commerce, the European Council in May
2002 issued a second Green Paper seeking comments on a proposed Council Regulation on
the Law Applicable to Non-Contractual Obligations. This new Rome II proposal leaves noncontractual
choice of law in disputes relating to e-commerce to be governed by the rules of
the EU's E-Commerce Directive. The comments on this proposal are due in September of
this year. The European experience in attempting to unify choice of law for non-contractual
obligations should be studied closely, as should the comments received on the Rome II
proposal.
Subregionally, MERCOSUR has attempted to address the question of choice of law
for non-contractual obligations, as discussed in the report by Dr. Villalta Vizcarra. These and
other efforts should be closely scrutinized as well for what they might tell us about the
prospect of reaching agreement on this matter at the inter-American level.
C. Likelihood of a Successful Negotiation at the Inter-American Level
If the efforts of other organizations have failed or are likely to fail to produce
agreement on a useful instrument, the next question is: How likely is it that a successful
product will be negotiated at the inter-American level? Some aspects of this question have
already been mentioned. As far as a general agreement on the law applicable to noncontractual
liability is concerned, are the reasons that led The Hague Conference to
conclude that such an agreement was infeasible at the global level applicable as well to the
regional level? Europe's experience with Rome II may provide some insight into that
question. If the Europeans fail to produce agreement, despite their greater degree of
economic integration, the chances that agreement will be reached in the Americas may be
slim.
The question here is whether there are grounds for being optimistic that we in the
Americas will succeed where others before us have failed. There may be such grounds if our
legal systems were more harmonious than those of others who have tried, or if our states
had a stronger desire to achieve a solution to the problem and a greater willingness to
compromise to that end. Although greater research is necessary, my belief is that our legal
systems with respect to choice of law are at least as diverse as those of Europe, and
perhaps as diverse as the states who typically participate in the Hague Conference.
Moreover, it seems likely to me that our hemisphere includes numerous powerful interest
groups that could effectively thwart compromise if they wished to do so. For these reasons, I
believe that agreement would be very hard to reach on a convention purporting to regulate
choice of law for all non-contractual disputes.
58
On the other hand, there might be greater reason for optimism that agreement might
be reached on an instrument unifying choice of law for a specific category of non-contractual
obligation. Within a narrow category, the choice of law approaches within the hemisphere
might be more harmonious, or a solution might be available that would appeal to a broader
range of interested persons.
If we conclude that a choice of law agreement might be feasible with respect to a
particular category of non-contractual obligation, another question must be considered:
would the problem be more easily and more satisfactorily corrected through an instrument
harmonizing the substantive law on the subject within the hemisphere. As noted, a choice of
law problem arises only if the substantive laws on the topic differ. Disuniformity in choice of
law approaches is undesirable for the reasons already described. One way to deal with such
disuniformity would be to unify choice of law approaches. Another way to deal with the
problem would be to harmonize the substantive laws, thus obviating the choice of law issue.
Harmonizing the substantive law relating to all categories of non-contractual obligations
would of course be inconceivable. Harmonizing the substantive law in one particular
category of non-contractual obligations may be possible. Harmonization of substantive law
may be an even more attractive solution to the problem because it produces even more
certainty and predictability in cross-border legal relations. In the United States, there has
been a noticeable trend towards such harmonization, either imposed by the federal
government or negotiated among the states. There has been a similar trend in the Americas.
Indeed, in CIDIP-VI, the only two successful projects involved the harmonization of
substantive law. Thus, before recommending the negotiation of an inter-American conflict of
laws instrument on a specific category of non-contractual obligations, we should consider
whether it would be better to solve the problem by harmonizing the substantive law.
III. Jurisdiction
We have also been asked to consider the desirability of embarking on the negotiation
of an inter-American instrument regulating jurisdiction in non-contractual disputes. My
discussion of this issue will be relatively brief.
The purpose of an instrument regulating jurisdiction will depend on whether or not it is
a part of an instrument that also regulates choice of law. If it is not part of an instrument
regulating choice of law, the principal significance of the jurisdictional instrument would be to
regulate choice of law indirectly. As we saw, disuniformity of choice of law approaches is a
problem when plaintiffs have the choice of more than one forum. In such circumstances,
plaintiffs can engage in forum shopping, choosing the forum that they believe will apply the
most favorable law. An instrument that limits the forums that have jurisdiction over a
particular case will indirectly limit choice of law by limiting the places in which the plaintiff can
choose to bring his case. Usually, choice of law will be the most important consideration for
plaintiffs in choosing a forum. Thus, in the absence of an instrument regulating choice of law,
the principal importance for private parties of an instrument regulating jurisdiction will be its
indirect regulation of choice of law.
On the other hand, if the jurisdictional instrument includes provisions regulating choice
of law, and the choice of law provisions are relatively determinate, then choice of forum will
not play nearly as great a role in determining the applicable law. The point of an instrument
establishing a determinate choice of law rule is to provide certainty and predictability as to
the applicable law by setting forth a choice of law rule that would be applied by the courts of
all states that are parties to the instrument. The result would be that the applicable law would
not change depending on the plaintiff's choice of forum. The same law would be applied
regardless of the state in which the suit is brought. In such circumstances, the regulation of
jurisdiction plays a far less significant role. The choice of forum will still determine choice of
law with respect to some issues. For example, even when the law of another state is
applicable on substantive issues, the forum will apply its own procedural rules. With one
major exception, however, procedural rules will not typically be very important to the litigants.
Thus, jurisdictional provisions attached to a choice of law instrument which provides a
determinate choice of law rule will serve primarily to guarantee the defendant a forum that is
relatively convenient.
59
The one exception involves certain procedural rules of the United States. As is wellknown,
in the United States, civil suits are usually decided by a jury. Jury trials are often very
attractive to plaintiffs and very frightening to defendants. Whether the trial will be before a
jury or a judge is a procedural issue as to which the forum will apply its own law regardless
of whether foreign law applies to the substance. Thus, plaintiffs might want to choose a court
in the Untied States, even if a foreign law would be applicable to the substance of the claim,
just to get the benefit of a jury trial. Jurisdictional provisions of an instrument that also
regulates choice of law may thus have great significance to the outcome of a case that
involves plaintiffs who wish to sue in the United States.
If the jurisdictional provisions are attached to an instrument that regulates choice of
law by establishing a highly indeterminate choice of law rule, its significance would be about
the same as if the instrument did not address choice of law at all. If the applicable choice of
law rule is highly indeterminate, it is impossible to tell in advance how the judge will rule. As
scholars have noted, however, there is a distinct tendency for judges applying such rules to
apply the law of the forum. These indeterminate approaches thus have a tendency to
approximate a lex fori approach, under which a state's courts always apply the law of that
state. (Thus, while the governing law will be known as soon as the plaintiff selects the forum,
it still produces uncertainty and unpredictability before the plaintiff has chosen where to sue.)
Under such circumstances, the plaintiff's choice of forum will indirectly determine the choice
of law, just as it would if there were no instrument regulating choice of law.
What does this analysis tell us about the likelihood of successfully negotiating an
instrument regulating jurisdiction in non-contractual disputes? It suggests that agreement on
jurisdictional principles will be relatively easy if they are part of an instrument that also
regulates choice of law by establishing a determinate choice of law rule (except perhaps for
cases in which a jury trial is a possibility). On the other hand, if agreement on a choice of law
rule proves unattainable, agreement on jurisdictional provisions is likely to be difficult as well
because, under such circumstances, the jurisdictional provisions would serve as an indirect
regulation of choice of law (The same would be true if the instrument included choice of law
provisions adopting an indeterminate rule.)
This prediction is borne out by the ongoing attempt by the Hague Conference to
negotiate a convention regulating jurisdiction and enforcement of judgments (but not choice
of law). The negotiations reveal that the jurisdictional rules are being treated as de facto
regulations of choice of law, and have been very divisive precisely for that reason.12
As
noted, the Hague negotiations, though technically ongoing, appear to be at an impasse.
Among the most intractable disagreements have involved the provisions relating to
jurisdiction over torts. These provisions have raised significant concerns insofar as they
would apply to certain torts, such as those relating to e-commerce. The Hague Conference's
experience attempting to negotiate a global treaty on jurisdiction and enforcement of
judgments over the past decade should be studied closely for the lessons it might offer.
Specifically, we should try to determine the extent to which the impasse is attributable to
problems relating to non-contractual obligations, and the extent to which the impasse is likely
to reproduce itself in this hemisphere. Although further study is required, my research so far
has suggested that the impasse has been related to the torts provisions and that, while the
principal antagonists in this regard have been the United States and Europe, the Latin
American states that have participated in the negotiations have tended to agree with the
Europeans. If so, the prospects of an impasse at the inter-American level appears high.
In short, the answer to the question put to us concerning the desirability of embarking
on the negotiation of an instrument regulating jurisdiction in non-contractual cases is directly
related to the answer we give to the question concerning the desirability of an instrument
concerning choice of law in such cases. If success is unlikely to be achieved in the
negotiation of an instrument on choice of law establishing a determinate rule, the prospects
of successfully negotiating an instrument on jurisdiction would appear to be bleak. On the
12
See, e.g. Hague Conference on Private International Law, Preliminary Document no. 17, of February 2002, The impact
of the internet on the judgements project: thoughts for the future (submitted by Avil D. Haines for the Permanent
Bureau).
60
other hand, if we conclude that the negotiation of such a choice of law instrument is likely to
be successful, the prospects of success in the negotiation of a jurisdictional instrument would
likely be high.
IV. Other Questions
If we concluded that the negotiation of some sort of instrument is worth pursuing, other
questions would have to be confronted. First, and most obviously, we would have to consider
the content of such an agreement. What sort of choice of law and jurisdictional rules should it
establish? As noted, in the choice of law area, a debate has raged between proponents of
determinate rules that produce certainty and predictability and proponents of flexible rules
that permit judges to promote their notions of justice and fairness in individual cases. The
proposed instrument will ultimately have to take some position on the debate. Furthermore,
as noted, an instrument may be worth pursuing only if it contains relatively determinate rules.
In any event, we will come closer to an answer about the content of the relevant instrument
or instruments as we seek to answer the question whether an instrument, or several
narrower instruments, are worth pursuing in the first place.
Additionally, there is the question whether the instrument should take the form of a
convention or, instead, a model law. In the past, private international law instruments have
tended to take the form of conventions, whereas attempts to harmonize substantive law have
taken the form of model laws. This, however, is not a necessary correlation. I see no reason
in principle why a private international law instrument cannot take the form of a model law.
Whether one or the other form is preferable will turn to a significant extent on which form is
more likely to succeed. Model laws have been popular because they do not require the
elaborate ratification processes that often apply to treaties. In the case of the United States,
model laws may be preferable as well because of federalism concerns. As noted, choice of
law has traditionally been governed by the laws of the sister states. While there is no doubt
that the federal government can impose on the states a single choice of law rule to be
followed in international cases, there will be considerable reluctance to do so, either by way
of treaty or statute. A model law may thus be preferable because it could in theory be
adopted either by the federal government or by the individual states.
61
2. Preparation of a draft Inter-American convention against racism and all
forms of discrimination and intolerance
Resolution
CJI/RES.39 (LX-O/02): Elaboration of a draft Inter-American convention
against racism and all forms of discrimination and
intolerance
Annex: CJI/doc.80/02 rev.3 corr.1 Elaboration of a draft Inter-American convention
against racism and all forms of discrimination and
intolerance: report of the Inter-American Juridical
Committee (rapporteur: Dr. Felipe H. Paolillo)
During the LX regular session of the Inter-American Juridical Committee (Rio de
Janeiro, February-March 2002), Dr. Felipe Paolillo, rapporteur for the topic, presented
document CJI/doc.80/02, Proposed ideas and structure for the document related to the
need for a convention on racism and other forms of discrimination and intolerance
requested to the IAJC by the General Assembly. He observed that the document was
not about a substantive issue; instead, it concerned procedure, trying to work with a
number of hypothetical proposals, since the General Assembly's mandate was not
altogether clear. In that document the rapporteur mentioned a number of precedents at
both the global and inter-American levels. He also analyzed the member States'
responses to the questionnaire that the Department of International Law prepared on the
subject and the results of the World Conference against Racism, Racial Discrimination,
Xenophobia, and All Forms of Discrimination, held in Durban, South Africa, in
September 2001. In his document the rapporteur concluded that the first order of
business was to define more clearly the scope that the eventual convention would have;
in other words, what causes of discrimination did the General Assembly believe needed
regulation. In their responses, the member States underscored some forms of racism
that needed to be taken into account, such as the racism spread by way of the Internet.
The member States recommended that new vulnerable groups needed to be addressed,
such as migrant workers, the poor, homosexuals, the elderly, women, the disabled, and
others. However, the rapporteur went on to say that these groups did not fall into the
category of racial discrimination. One group that the rapporteur attached special
importance to, however, were indigenous peoples, and regarded it as an area in need of
much more in-depth exploration.
Based on everything said, his conclusion was that a general convention on
racism would be redundant, since there were already many instruments that dealt with
specific aspects of the subject matter. He added, however, that these instruments had
relatively few ratifications. The document in question suggested some new tendencies,
especially new forms of racism, racism spread via the internet. He mentioned that
another possible direction that a convention on this subject could take would be to
establish a mechanism to monitor for observance.
Dr. Sergio González Gálvez said that the practice of adopting instruments at the
regional level when universal instruments had already been adopted was not one that
should be encouraged. Having said this, he went on to raise indigenous peoples and the
disabled as possible subjects of a convention on discrimination. He said that before
62
issuing any opinion advising against the adoption of a general convention, certain
aspects of discrimination not covered by the existing legal instruments should be
explored and a study made to determine whether the existing instruments had a
significant number of ratifications. If an inter-American convention was deemed
inadvisable, he suggested a regional declaration of interpretation of the Universal
Declaration of Human Rights in this regard. As an alternative to amendment of the
Universal Declaration or adoption of a general inter-American convention, he suggested
that a number of conventions might be drafted in several specific areas.
Dr. Joo Grandino Rodas said that from time to time it was important to have a
convention that pulled together all the recent legal developments on a given subject. He
observed that the political reason for having such an instrument was frequently that the
other similar legal instruments may have been adopted to address different needs or in
different settings. He recommended that the Inter-American Juridical Committee should
include the more general definitions already included in other conventions, even when
putting together a draft on a more specific aspect of the problem.
Dr. Orlando Rebagliati suggested the adoption of a general declaration as an
alterative to a convention on the subject.
The Assistant Secretary for Legal Affairs advised that the language of the Juridical
Committee's mandate had been worded to take into account the position of those
countries that saw no real reason to undertake an exercise that would result in another
convention. He pointed out that the Permanent Council was looking to the Juridical
Committee's pronouncement for a clearer idea on how best to proceed from here.
Based on these observations, the Inter-American Juridical Committee adopted
document CJI/doc.80/02 rev.3 corr. 1, Elaboration of a draft inter-American convention
against racism and all forms of discrimination and intolerance: report of the InterAmerican
Juridical Committee, attached to resolution CJI/RES.39 (LX-O/02),
Elaboration of a draft inter-american convention against racism and all forms of
discrimination and intolerance. In that resolution the Inter-American Juridical Committee
expressed its concern over the escalation in the incidence of acts of racism and
intolerance worldwide and asserted the need to make common cause against these
manifestations of intolerance by increasing cooperation among the States to wipe out
such practices. It also listed conclusions, which appear at the end of document
CJI/doc.80/02 rev.3 corr.1. The document was forwarded to the Chairman of the
Permanent Council.
The following is the text of the resolution and of the document herein mentioned:
CJI/RES.39 (LX-O/02)
ELABORATION OF A DRAFT
INTER-AMERICAN CONVENTION AGAINST RACISM
AND ALL FORMS OF DISCRIMINATION AND INTOLERANCE
THE INTER-AMERICAN JURIDICAL COMMITTEE,
CONSIDERING resolution AG/RES.1774 (XXXI-O/01), Preparation of a draft interAmerican
convention against racism and all forms of discrimination and intolerance, by
63
which the General Assembly requested that the Committee prepare an analytical document
for the purpose of contributing and furthering the work of the Permanent Council on the need
to draw up an inter-American convention to prevent, sanction and eradicate racism and all
forms of discrimination and intolerance;
CONSIDERING also that in order to prepare this analytical document, the General
Assembly asked that account be taken of the provisions set forth in the international juridical
instruments on the matter, the responses of the member States to the questionnaire on
Drawing up an inter-American draft convention against racism and all forms of discrimination
and intolerance (CP/CAJP-1687/00 rev.1), the declarations and recommendations produced
at the World Conference against Racism, Racial Discrimination, Xenophobia and Related
Forms of Intolerance held in South Africa in 2001, as well as the Regional Conference of the
Americas preparatory to this World Conference held in Chile in 2000, and any other
contributions to be made by other organs of the inter-American system and civil society;
HAVING CONSIDERED the theme at its 60th
regular sessions held in Rio de Janeiro,
Brazil, from 25 February to 8 March 2002, on the basis of document CJI/doc.80/02 rev.3
corr.1 entitled Elaboration of a draft inter-American convention against racism and all forms
of discrimination and intolerance: report of the Inter-American Juridical Committee, prepared
by Dr. Felipe Paolillo, member designated by the Juridical Committee as rapporteur of the
theme;
HAVING IN MIND working documents References to discrimination and racism in the
constitutions of the member States of the OAS (SG/SLA DDI/doc.9/01), and Elaboration of a
draft inter-American convention against racism and all forms of discrimination and
intolerance: a study of the theme in the inter-American system and in other international
systems (SG/SLA DDI/doc.6/01), prepared by the Department of International Law of the
Secretariat for Legal Affairs,
RESOLVES:
1. To express its concern with regard to the increase in the number of acts of
racism and intolerance throughout the world and to confirm the need to make a common
cause in opposition to such manifestations by intensifying cooperation among the States in
order to eradicate these practices.
2. To formulate the conclusions that appear at the end of document CJI/doc.80/02
rev.3 corr.1, Elaboration of a draft inter-American convention against racism and all forms of
discrimination and intolerance: report of the Inter-American Juridical Committee, and convey
that document, attached to this resolution, to the Chairman of the Permanent Council.
This resolution was unanimously adopted at the session held on 6 March 2002, in the
presence of the following members: Drs. Felipe Paolillo, Brynmor Thornton Pollard, Ana
Elizabeth Villalta Vizcarra, Carlos Manuel Vázquez, Kenneth O. Rattray, Joo Grandino
Rodas, Orlando R. Rebagliati and Eduardo Vío Grossi.
CJI/doc.80/02 rev. 3 corr.1
ELABORATION OF A DRAFT
INTER-AMERICAN CONVENTION AGAINST RACISM AND
ALL FORMS OF DISCRIMINATION AND INTOLERANCE
Report of the Inter-American Juridical Committee
(rapporteur: Dr. Felipe H. Paolillo)
I. MANDATE OF THE INTER-AMERICAN JURIDICAL COMMITTEE
In its resolution AG/RES.1774 (XXXI-O/01) entitled Preparation of a draft interAmerican
convention against racism and all forms of discrimination and intolerance, the
General Assembly requested the Inter-American Juridical Committee "to draft an analysis
document in order to foster and further the works of the Permanent Council" and asked it to
bear in mind, when carrying out this task, the international juridical instruments on this
64
matter, as well as the replies from the member States to the questionnaire on this issue
prepared by the Department of International Law (DDI) of the Secretariat for Legal Affairs
(SLA) at the request of the Committee for Juridical and Political Affairs (CAJP), in addition to
the outcome of the World Conference Against Racism, Racial Discrimination, Xenophoby
and pertinent Forms of Intolerance (Durban, South Africa, 2001) and the Regional
Conference of the Americas (Santiago de Chile, 2000).
The resolution does not provide any other information or guidelines allowing the IAJC
to identify the contents of the "analysis document" requested with greater accuracy, but it
does stipulate expressly that its purpose should be to "foster and further" the tasks assigned
to the Permanent Council. These "tasks" are those assigned to this entity by the General
Assembly in this same resolution, meaning an analysis of the need for an inter-American
convention to prevent, sanction and eradicate racism and all forms of discrimination and
intolerance (§ 1).
Consequently, the rapporteur understands that the Juridical Committee should not at
this stage begin to analyse substantial issues related to racism and racial discrimination, as
what should be done is to examine the issue of the need to complete the inter-American
convention on racism and all forms of discrimination and intolerance, taking into account the
progress that has been achieved in this matter not only at the inter-American level but also at
on a broader scale at the international level, and that the General Assembly should be
advised of its opinion on this matter.
II. PURPOSE OF THE DRAFT CONVENTION
In order to issue this opinion, it is necessary to decide in advance and as accurately
as possible the scope of the proposed draft convention, meaning the aspects of racism and
racial discrimination that the General Assembly felt could be made subject to regulations and
would justify the drafting of a new convention. This decision should logically be taken on the
basis of the wording of resolution AG/RES.1774 (XXXI-O/01), although this is not completely
clear with regard to the field to be covered by the proposed convention.
In fact, some of its provisions, if interpreted quite literally, would lead to the conclusion
that a new inter-American convention is under consideration for the elimination of all types of
discrimination, including racial discrimination. For instance, resolutive paragraph 1 of the
resolution requests the Permanent Council to consider the need to sign an inter-American
convention in order to prevent, sanction and eradicate "racism and all forms of discrimination
and intolerance" (our italics). An identical phrase was used in resolution AG/RES.1712 (XXXO/00).
A strict interpretation of this phrase would lead to the conclusion that the future
international instrument should have the purpose of eliminating discrimination based on all
types of causes (race, colour, gender, language, religion, political opinions or other views,
national or social origin, economic status, place of birth, age, disabilities, etc.), with racial
discrimination being only one of its manifestations. In support of this interpretation, the eighth
preambular paragraph in the resolution 1774 could be invoked, which speaks of "expanding
the international juridical framework... in order to eliminate all forms of discrimination that still
exist in the hemisphere" as well as paragraph ten in the preamble, stating that the
Organization should issue a clear political indication in favour of the "elimination of all forms
of discrimination".
This seems to be the interpretation of some Governments that replied to the
questionnaire drawn-up by the DDI. Although the reply to question 1 on the need for a new
convention alludes solely to racial discrimination, some of the replies to the second question
(what aspect should be included in the draft convention) mention the establishment of
mechanisms for the inclusion of "racial, religious or sexual minorities" (Brazil); the upsurge in
neo-Nazism and anti-Semitism (Brazil); traffic in women and children (Brazil); aspects
related to discrimination against the disabled (Panama).
On the other hand, even when §1 of the resolution alludes to all forms of
discrimination and intolerance, the eleventh paragraph in its preamble, when invoking the
declaration of the Heads of State at the III Summit of the Americas (Canada, April 2001),
referred to "all forms of discrimination, including racism, discrimination and other connected
65
forms of intolerance". Furthermore, other precedents mentioned in both the preamble as well
as the provisions of the resolution are tools that refer specifically to racism, racial
discrimination and xenophobia, where other forms of discrimination appear only as
concurrent or aggravating factors of discrimination based on race.
Consequently, the Juridical Committee concludes that the General Assembly
requested indications on the need to adopt a convention at the inter-American level for the
prevention, punishment and eradication of racism and connected forms of discrimination and
intolerance. Added to the reasons listed above to reach this conclusion are others of a
practical nature, such as conducting the negotiations and completion of an inter-American
convention to combat and sanction all forms of discrimination practised in the hemisphere
would constitute far too ambitious a task that would demand broad-ranging political and
diplomatic efforts.
III. PRECEDENTS TO BE BORNE IN MIND
The General Assembly requested the Juridical Committee to take a series of
precedents into account, which are examined in the following paragraph:
1. International instruments
The DDI drafted a document containing ample information on the main instruments
that are being adopted on this issue, not only within the inter-American system but also other
international systems. These instruments will not, however, be examined here. The InterAmerican
Juridical Committee will refer to this document and merely offer some general
remarks that it considers are relevant for this Report at the universal level.
a) At the universal level
The adoption of the Universal Declaration of Human Rights in 1948 was the startingpoint
for a process of preparing rules and regulations within the field of protection of broadranging
human rights, with extraordinary repercussions on the lives of large sectors of
humankind. From that year onwards, the States have adopted countless instruments
containing political commitments on this matter and the promotion of human rights, and have
signed several agreements, many of which establish international mechanisms for
guaranteeing their protection. If the development of national legal systems has been
encouraged in order to ensure the effective application within the States of the rules and
principles adopted at the international level, the competent international entities have
adopted several resolutions that have helped to strengthen the international system for
protecting human rights. Other than the entities charged with surveiling compliance with the
obligations undertaken by the States on this matter, ad hoc international tribunals have
begun to function, hearing cases on violations of certain human rights. The eventual
establishment of the International Criminal Court will constitute the culmination of the
process of establishing international institutions in order to ensure universal respect for
human rights and punishment for those who commit the most serious violations of these
rights.
Under the aegis of the United Nations, efforts to protect human rights were
concentrated initially on combating racial discrimination found in territories that were still
subject to colonial rule, and in non self-governing territories. It is felt that this discrimination
came to an end with the completion of the decolonisation process.
The main universal instruments on this matter are the following:
i) Universal Declaration of Human Rights, December 10, 1948. All rights and
freedoms proclaimed in this Declaration are acknowledged for everyone, with no distinction
made on grounds of race (article 2).
ii) International Covenant on Economic, Social and Cultural Rights, December 16,
1966. Twenty six (26) members of the OAS have ratified this Covenant.
66
The States Parties agree to guarantee the exercise of the rights listed in the Covenant
"with no discrimination whatsoever for reasons of race, colour... national origin..." (article 2,
§ 2).
iii) International Civil & Political Rights Covenant, December 16, 1966. This
Covenant has been ratified by 27 Member States of the OAS.
The States Parties agree to respect and guarantee the rights acknowledged in the
Covenant "with no distinction whatsoever of race, colour... national origin..." (article 2, § 1).
iv) Optional Protocol of the International Covenant on Civil and Political Rights,
December 16, 1966. This Protocol has been ratified by 21 Member States of the OAS.
The States Parties to the Protocol acknowledge the competence of the Human Rights
Commission to receive and analyse communications from individual persons claiming to be
the victims of violations of the rights listed in the Covenant on Civil and Political Rights
(article 1).
v) Convention for the Prevention and Sanction of the Crime of Genocide,
December 9, 1948. Twenty-three (23) member States of the OAS are parties to this
Convention. It lists acts constituting genocide when committed with the intention of totally or
partially destroying "a national, ethnic, racial or religious group" (article II).
vi) Declaration on the Elimination of all Forms of Racial Discrimination, adopted by
the United Nations General Assembly on November 20, 1963.
This Declaration condemns discrimination for reasons of race, colour or ethnic origin
as this constitutes a violation of human rights and breaches the fundamental freedoms
(Article I). It prohibits any act constituting racial prejudice or discrimination and obligates the
States to introduce a series of measures to prevent or suppress racial or ethnic
discrimination (articles 2 to 11).
vii) International Convention on the Elimination of all Forms of Racial Discrimination,
December 21, 1965. Thirty (30) States in the hemisphere have ratified this Convention.
In addition to defining the phrase "racial discrimination" (article 1) in a very broadranging
manner, the International Convention lists a series of commitments that the States
undertake in order to prevent and eliminate racial discrimination (articles 2 , 4, 6 & 7),
declaring that people of all races are equal before the law and in terms of their enjoyment of
human rights (article 5); it also establishes the Committee for the Elimination of Racial
Discrimination, the first human rights body established within the framework of the United
Nations, that is responsible for overseeing compliance with the obligations undertaken by the
States Parties to the Convention, receiving and analysing complaints by the States over
compliance with these obligations, and receiving communications from persons or groups of
people who consider that they are the victims of violation of the rights stipulated in the
Convention committed by the States Parties that have expressly acknowledged the
competence of the Commission to adjudicate on this type of complaint.
Both the definition of the expression "racial discrimination" and the obligations that the
Convention imposes on Member States to prevent and eliminate racial discrimination have
been stated in very broad terms. It is the understanding of the Committee that this makes it
unnecessary to conclude a convention of regional scope for the purpose of declaring the
equality of individuals of all races, condemning in general the different ways in which racial
discrimination can be manifested, or formulating general rules that have already been
incorporated into this Convention or into other instruments. In the light of the experience of
the last 30 years, the general principles and the obligations that States should assume with
regard to preventing and eliminating racial discrimination could probably be formulated
differently, and perhaps more completely. The content, however, would not vary in any
substantial manner, which is why there is no justification for the enormous diplomatic effort
nor for the complicated and usually lengthy negotiations required to conclude a new
convention on this matter.
67
viii) Declaration of the General Assembly of the United Nations on the Human Rights
of Individuals who are not Nationals of the Country in which they live, December 13, 1985.
ix) Convention on the Protection of the Rights of all Migrant Workers and their
Families, December 18, 1990. Five (5) countries in the hemisphere have ratified this
Convention.
x) Declaration on the Rights of Persons Belonging to National or Ethnic, Religious
and Linguistic Minorities, December 18, 1992. This is the only United Nations instrument that
refers specifically to the special rights of minorities. It lists a series of minority rights,
including the right to develop their own culture without interference and the right to
participate effectively in decisions taken at the national level1
.
Overseeing fulfillment of the obligations that States assume with regard to minorities is
shared by the Committee on Human Rights, the Sub-committee for Promoting and
Protecting Human Rights, the Committee on Economic, Social and Cultural Rights, and the
Committee for Eliminating Racial Discrimination. In addition, there is a Working Group on
Minorities which makes assessments of how the Declaration is being complied with1
.
b) At the Inter-American level
i) Charter of the Organization of American States. This acknowledges the right of
all human beings with no distinction of race, gender, nationality, creed or social status to
material well-being and spiritual development under conditions of freedom, dignity, equal
opportunity and economic security (article 45)
ii) American Declaration on the Rights and Duties of Man. Declares the freedom
and equality in dignity and rights of all men (Preamble) and acknowledges that everyone is
equal before the law, with rights and duties enshrined in the Declaration with no distinction of
race, gender, language, creed or any other aspect (article 2).
iii) American Convention on Human Rights. Twenty-five (25) States are parties to
the American Convention.
This binds the States to respect human rights and the fundamental freedoms
acknowledged by the Convention and to guarantee their exercise "with no discrimination
whatsoever for reasons of race, colour... national origin..." (article 1). Other provisions in the
Convention ban the "apology for national, racial or religious hate that encourages violence or
any other similar unlawful action against any person or group of persons for any reason
whatsoever, including race, colour... or national origin.." (article 13, § 5), and the expulsion
of foreigners whose right to life or personal freedom is at risk of violation due to race,
nationality..... (article 22, § 8); it enshrines the quality of all persons before the law (article
24), and allows certain cases of suspension of the obligations established by the Convention
whenever this "does not involve any discrimination whatsoever granted for reasons of race,
colour or social origin" (article 27, § 1).
iv) Additional Protocol to the American Convention on Human Rights, "San
Salvador Protocol". Twelve (12) States in the region have ratified the San Salvador Protocol.
This Protocol reiterates the obligation of the State parties to guarantee the exercise of
the rights acknowledged in the Protocol "with no discrimination whatsoever for reasons of
race, colour... national origin..." (article 3). The Protocol also establishes that education
should, among other things, foster understanding, tolerance and friendship among all nations
and all racial, ethnic or religious groups" (article 13, § 2).
v) Resolutions adopted by the General Assembly. In addition to resolution
AG/RES.1774 (XXXI-O/01), the General Assembly has adopted many resolutions that
mention racism and racial discrimination (see DDI document).
1
Mention should also be made of the following instruments: Convention (N
o
. 111) Relating to Discrimination in Employment and
Occupation, adopted by the General Conference of Organization of Labor on 25 June 1958; the Declaration on Race and Racial
Prejudice, appoved by the General Conference of UNESCO on 27 November 1978.
68
vi) Declarations at the Summits of the Americas
In the declarations issued by the hemispheric summits, the adoption of various
measures is proposed in order to strengthen the American human rights system, such as
reviewing and developing national legal systems, promoting legal, educational and social
measures, finding, ratifying or adhering to international instruments on human rights, as well
as implementing initiatives and other specific measures designed to strengthen the interAmerican
system of human rights. Nevertheless, none of the Plans of Action adopted by the
Summit meetings has proposed the adoption of new conventions on human rights, not even
the Third Summit that met in Quebec in April 2001, and at which the Head of States agreed
to eradicate all forms of discrimination, including racism, racial discrimination, xenophobia
and other connected forms of related intolerance. The commitments undertaken consisted of
complying with their international obligations and the adoption of specific measures at the
national level in order to foster and strengthen respect for human rights and the fundamental
freedoms.
The earlier Summit meetings did not even mention the possibility of adopting new
conventions against racial discrimination. Instead, the Heads of State agreed, among other
matters, to review and strengthen the laws protecting the right of minority groups and
indigenous communities and populations, ensuring access to education with no
discrimination on grounds of race, nationality or origin or gender (First Summit of the
Americas, Miami, December 1994); and to develop specific programs for groups lagging
behind in matters of education, particularly minorities, among others, applying educational
strategies that are pertinent to multi-cultural societies in order to build up bilingual,
intercultural basic education models with indigenous communities and migrant groups
(Second Summit of the Americas, Santiago de Chile, April 1998).
2. The replies of the member States
The resolution requests the Juridical Committee to bear in mind the replies from the
Governments to the questionnaire drafted by the DDI. These replies are reproduced and
analysed in the DDI documents.
From the 13 countries that replied, two declared categorically against the idea of
completing a new inter-American general convention against racism, grounded on similar
reasons: the existing international instruments particularly the United Nations Convention on
the Elimination of Racial Discrimination are sufficiently broad-ranging to make any
convention on this same topic quite unnecessary. What is required is not a new convention
that would inevitably regulate a matter that has already been regulated, but rather that the
countries in the hemisphere that have not yet ratified the existing instruments should do so,
and should comply with the obligations contained therein (see replies from Antigua and
Barbuda and the United States).
Eleven countries were in favour of signing a new convention on racism. Most of them
consider that this new convention should include the topics suggested by the DDI, which are
wide-ranging (see page 13 of the DDI document). Brazil sent a reply that was very much in
favour of a general convention, the purpose of which would be to expand the scope of the
existing international instruments. However, some countries indicated that redundancies or
overlapping functions should be avoided (Argentina, Costa Rica). Others indicated the
specific topics that should be covered by a new inter-American convention (see below).
3. The World Conference against Racism, Racial Discrimination, Xenophobia and
Connected Forms of Intolerance
The World Conference against Racism, Racial Discrimination, Xenophobia and
Connected Forms of Intolerance was held in Durban, South Africa in September 2001. The
need to convene this World Conference was justified by the frequency and severity of
incidents prompted by racism, racial discrimination, xenophobia, and connected forms of
intolerance occurring worldwide. Alarming manifestations of racial prejudice and hate persist
in many countries. These old hatreds and prejudices are sometimes employed under new
69
names (ethnic cleansing) and are disseminated through modern communication and
information technologies.
Nevertheless, it does not seem that the persistence of racist and xenophobic
manifestations is due to the lack of international instruments for combating racism. Proof of
this lies in the objectives of the World Conference, which did not include the formulation of
new conventions against racism. The World Conference was held, among other reasons, to
examine the progress achieved in the struggle against racism, assessing the stumblingblocks
hampering its progress, examining mechanisms that will ensure better application of
the existing instruments, and examining factors leading to racism and racial discrimination.
No regulatory tasks were required of the Conference.
In the texts issued by the Conference, no mention was made of a call to formulate new
instruments against racism and racial discrimination in general. The Declaration and Plan of
Action adopted by the Conference invite the States or the General Assembly of the United
Nations to draft conventions related to specific aspects of racism and racial discrimination
(see below), but contain no mandate or recommendation referring to the completion of a new
general convention on this topic. Instead, it affirms that universal adherence and the
complete implementation of the Convention on the Elimination of All Forms of Racial
Discrimination is a matter of the utmost importance for fostering equality and nondiscrimination
throughout the world (Declaration § 7), recalling the importance attached to
the States complying with the provisions in the international treaties and other instruments
that ban discriminatory processes (ib. § 108). Furthermore, it exhorts those States that have
not yet done so to ratify or adhere to a series of covenants or international conventions on
racism and human rights, listed in §§ 75, 77 and 78 of the Plan of Action.
The Conference invited the General Assembly of the United Nations to consider
drafting a broad based international convention for protecting and promoting the rights and
dignity of disabled people (Plan of Action, § 183), and urged the Governments to negotiate
bilateral or regional agreements on migrant workers (ib., § 185), concluding bilateral, subregional,
regional and international agreements on the traffic in women and children (ib., §
189), speeding up the approval of a declaration on the rights of indigenous peoples (ib., §
209)... In counterpart, the international community agreed that the stumbling-blocks
hampering the complete elimination of racial discrimination and achieving equality for all
races lie in the lack of the political will of the States and the inadequacy of their anti-racist
legislation, as well as the lack of implementation strategies and specific ant-racist actions
(Declaration, § 77).
Nevertheless, the regional Conference held in Santiago as a preparatory meeting of
the World Conference urged that an inter-American convention against racism, racial
discrimination, xenophobia and connected forms of intolerance should be drawn up under
the aegis of the OAS, "expanding the scope of the existing international instruments through
the inclusion of provisions on new manifestations of racism, racial discrimination, xenophobia
and connected forms of intolerance, and the establishment of follow-up mechanisms". The
regional Conference of the Americas focused on racial discrimination, xenophobia and
connected forms of intolerance, and when referring to other causes of discrimination, such
as age, gender, sexual preference, disabilities and social or economic status, did so by
rating them as factors that worsened discrimination based on race. Canada and the USA
submitted comments that appear in Annex V to the documents issued by the regional
Conference.
IV. POSSIBLE APPROACHES
The negotiation and adoption of an inter-American convention against racism and
racial discrimination, which seems to be an objective desired by a significant number of
Member States of the OAS, imply broad-ranging political and diplomatic actions. If it be
decided to proceed with this enterprise, efforts should be made to avoid the results of this
action being redundant, or incompatible with existing conventions, and not to create
problems of interpretation or application that might arise because of the existence of treaties
already in place that regulate the same matter.
70
The way to minimise this risk is to identify specific aspects of racism, racial
discrimination, xenophobia and connected forms of intolerance that have not yet been
regulated, or have been regulated insufficiently, which could constitute the purpose of this
convention. This is tantamount to saying that perhaps it would be convenient to abandon the
idea of a new general convention against racism and adopt an approach focused on specific
issues. The replies of the Governments to the DDI questionnaire, even though supporting
the idea of general convention, suggested the need for international regulation of certain
specific issues, some of which are listed below.
a) New forms of racism
Several governments proposed that the regulation of new forms of racism should be
covered by a new inter-American convention. But in attempting to define these new forms, it
was found that they basically refer only to the use of the electronic communications media
and information. This is an issue of the utmost importance, but probably of limited scope to
justify an inter-American convention.
Argentina proposes that a new document should extend the scope of the existing
national instruments "to the new types and causes of discrimination... as well as the Internet,
genetic manipulation, access to health care facilities". Argentina also mentioned, as issues to
be possibly covered by the future convention, measures against the "urging of discriminatory
acts or theories, for instance over the internet". Brazil mentioned "the use of the Internet as a
means for disseminating racist propaganda". Colombia states that the new types of
discrimination should be dealt with arising from circumstances prompted by globalisation
"particularly the Internet and scientific progress in terms of access to the human genome".
Similarly, Mexico adds to the issues suggested by the DDI in the questionnaire "the improper
use of new communication technologies such as the Internet in order to foster racial
discrimination, xenophobia and connected forms of intolerance". In more general terms,
Brazil refers to traditional and contemporary forms of racism and intolerance. Costa Rica
postulates the new types of racism as issues that have not been covered by the International
Convention, giving examples of discrimination for reasons of religion, culture and language.
Guatemala alludes to contemporary forms of racism, such as xenophobia and intolerance.
In the Durban Declaration, xenophobia against foreigners is acknowledged,
particularly immigrants, refugees and those seeking asylum as one of the main sources of
contemporary racism (§ 16), and draws attention to new manifestations of racism, racial
discrimination, xenophobia and connected intolerance, although without specifying these
new forms (§ 17). However, it also expresses concern over the use of new information
technologies for purposes undermining respect for human values. In the Plan of Action,
mention is made as an example of these new forms of using the new communication and
information technology, including the Internet to disseminate ideas of racial superiority (§
146). Furthermore, it urges the States to impose penalties for encouraging racial hatred
through the new communication and information technologies (ib., § 148).
The Conference of the Americas also proposes in its Plan of Action "...to adopt
measures to prevent scientific and technological progress in the field of genetic research
being used to promote racism, racial discrimination, xenophobia and other connected forms
of intolerance, as well as protecting the personal privacy of the information contained in the
human genetic code".
In the European Union, talks have been initiated on this issue, although not in order to
adopt an international convention, but rather a "Framework decision" containing standards
and rules declaring racism and xenophobia illegal both on the Internet and offline, and
establishing "effective, proportional and dissuasive penalties for committing racist acts". This
draft contains a definition of xenophobia and racism that is simpler than that contained in the
International Convention. In effect, both expressions are defined as "the belief that race,
colour, descent, religion or belief, ethnic or national origin, as a factor determining aversions
towards individuals or groups".
Combating racist propaganda through the electronic communications and information
media through international regulation is difficult, due to the reluctance of certain countries to
71
allow intervention over the Internet, which would constitute a violation of certain freedoms
that are guaranteed by their constitution. Precisely for this reason, any one wishing to set up
a website to disseminate racist propaganda does so in countries that do not permit any
control or constraints to be imposed over electronic communications.
b) Particularly vulnerable groups
In their reply to the questionnaire, some governments drew attention to the problem of
discrimination against particularly vulnerable groups. As vulnerable groups, Brazil identifies
"negroes, indigenous peoples, immigrant workers, the poor, homosexuals, the elderly and
women". Costa Rica speaks of the "peoples descendent from Africans and the indigenous
communities". Ecuador mentions the "minority ethnic groups". Panama proposes that the
convention should cover "aspects enshrined in the Inter-American Convention for the
Elimination of All Forms of Discrimination against the Disabled".
c) Indigenous peoples
The particular situation of the indigenous peoples warrants a special mention, as their
status in many of the OAS countries is endowed with specific characteristics. In general, the
indigenous peoples are in a situation of obvious disadvantage in relation to other sectors of
the population consisting of the descendants of the colonizers, even in countries where the
indigenous population is in the majority. In States with a multi-ethnic population ­ like many
of the countries in the region ­ the majority or dominant ethnic groups tend to impose their
culture on other groups. Imposing uni-culturalism in multi-ethnic societies will violate the
rights of the minority groups.
Recent studies by the United Nations describe the precarious situation of indigenous
communities and modern forms of discrimination against them. Efforts are made to
acknowledge the rights of indigenous peoples in many countries, and furthermore to seek
reconciliation for past harm and injury inflicted, and even to offer compensation for loss and
damage.
The rights acknowledged by the Convention of San Jose, Costa Rica and its Protocol
as well as the other inter-American instruments that are related to human rights, logically
benefit indigenous peoples of the continent, who have the right to use the mechanisms
established in order to ensure respect for human rights (see section d infra). At the moment,
efforts are being made to approve a universal declaration acknowledging the rights of
indigenous peoples, including the maintenance of their own life-styles, cultures, traditions
and economic structures and the right to administer their own lands and natural resources
(see § 38 to 44 of the Durban Declaration).
d) New oversight and compliance mechanism
Among the 11 countries supporting a new convention, Panama was against the
introduction of new institutions with powers to ensure compliance with the instruments. The
majority suggested establishing new entities or procedures (Costa Rica, Colombia, Ecuador,
Guatemala, Mexico, Peru and Uruguay) or conferring jurisdiction to hear issues related to
racial discrimination, on existing entities within the inter-American system (Argentina, Brazil).
Brazil proposed that a mechanism be established for fostering the inclusion of black and
indigenous peoples, as well as other racial, religious or sexual minorities.
No specific comments were received from: Dominica, Ecuador, Mexico, Panama, Peru
and Uruguay.
The International Convention establishes a Committee to examine the reports that the
States Parties are obliged to submit regularly, relating to the measures adopted by them in
order to comply with the obligations arising from the Convention (article 9), as well as to
receive communications from the States Parties on non-compliance with the provisions of
the Convention by any other State Party (articles 11, 12, 13). Furthermore, the Committee
can receive and examine claims received by individuals or groups of individuals on violations
of the human rights of those considering themselves to be victims of acts committed by any
State Party in whose jurisdiction they are found, whenever this State Party has declared that
72
it accepts the jurisdiction of the Committee to hear such claims and complaints (article 14, §
1). Nevertheless, so far, only 5 countries in the region (Chile, Costa Rica, Ecuador, Peru and
Uruguay) have accepted the Committee's jurisdiction, in accordance with the mentioned
article 14.
An analysis should be carried out to determine whether the mechanisms established
by the International Convention against Racial Discrimination should be extended by the
mechanisms of the inter-American system of human rights, checking whether this is
sufficient to ensure compliance with the obligations of the States in terms of nondiscrimination,
sanctioning those who fail to meet these obligations and providing reparations
for the victims of racial discrimination. It should be recalled here that on August 31, 2001, the
Inter-American Court of Human Rights delivered a decision upholding a claim filed by the
Awas Tingni indigenous community against the Government of Nicaragua over its rights to
the tract of land settled by the tribe. The Court declared that the Government of Nicaragua
had violated the Inter-American Convention on Human Rights by ignoring the rights of the
indigenous community to property and equality before the law.
e) Protection of migrants
The General Assembly of the United Nations approved resolution 40/144 in 1985,
containing a Declaration on the human rights of persons who are not nationals of the
countries in which they live (migrant population). This issue is considered every year by the
General Assembly, which adopts resolutions condemning all forms of racial discrimination
and xenophobia reflected, among other matters, in terms of access to jobs and vocational
training, reiterating the general principles on the protection and exercise of the human rights
of migrants.
The Durban Conference recommended these States to participate in regional
dialogues on migration problems and invited them to consider the possibility of negotiating
bilateral and regional agreements on immigrant workers, formulating and implementing
programs with the States and other regions in order to protect migrant rights (§ 185).
The Juridical Committee feels that this topic, like the matter that follows, although
closely linked to the issue of racism, should remain outside the scope of the future interAmerican
convention, as ­ already explained above ­ the General Assembly seems to have
referred solely to racial discrimination and other related forms of discrimination, but not to
xenophobia.
f) Immigrant workers
The International Convention on the Protection of the Rights of all Migrant Workers
and their Families was adopted on December 18, 1990, entering into force three months
after the 20th
instrument of ratification or adherence was deposited. So far, only 17 States
have ratified or adhered to the Convention, five of them being in Latin America. In the interAmerican
sphere, there are no similar conventions or instruments on this issue.
V. CONCLUSIONS
Based on the preceding considerations, the Inter-American Juridical Committee has
reached the following conclusions:
1. Racism and related forms of discrimination and intolerance remain a significant
and widespread problem adversely affecting the lives of large segments of the people who
live in this Hemisphere. The Inter-American Juridical Committee fully shares the view of the
General Assembly and other organs of the OAS that it is important to address this urgent
problem at this time. The elaboration of a new inter-American convention against racism and
related forms of discrimination is one of several possible ways to address this problem (other
strategies for addressing the problem are noted below in paragraph 7). In determining
whether to proceed with the elaboration of such a convention, it is necessary to determine
not only whether such a project would help to produce a solution to the problem, but also
whether such a project would divert resources from other, more effective ways of addressing
the problem.
73
2. If it is decided to conclude a new inter-American convention on racism, racial
discrimination and other pertinent forms of intolerance, this should be a complementary
instrument to the universal and regional conventions that exist on the matter, that is to say, it
should cover any general aspects not covered by those conventions or that typify forms of
racism, racial discrimination or intolerance not yet dealt with in specific international
instruments. An overly broad focus should be avoided (such as drawing up a convention
aimed at all forms of discrimination and intolerance, which would cover practically the entire
spectrum of human activity), or else, if a more restricted focus is adopted (concentrating, for
example, only on racial discrimination, as appears to be the intention of the General
Assembly), then care should also be taken to avoid too general a focus that would produce
an instrument full of repetitions and overlapping. The Juridical Committee is therefore of the
opinion that it is not advisable to undertake to negotiate and conclude a general convention
to prevent, sanction and eradicate racism and all forms of discrimination and intolerance,
insofar as it would be repetitive, producing overlapping that would lead to serious and
inevitable problems of interpretation and generate doubts and confusion as to which were
the obligations and rights of the Member-States parties to the former conventions and the
new convention.
3. The Juridical Committee also feels that in adopting a more precise focus, then
perhaps it is opportune to examine in greater detail which areas within the domain of racism
and racial discrimination that have not been regulated internationally, or which have been
insufficiently regulated, might be the object of an inter-American convention to complement
the instruments that are in effect in the region and might possibly be accepted by all the
Member-States. This would involve identifying concrete aspects of prevention, sanction and
eradication of racism and racial discrimination, specific groups that are subjected to
discrimination or particular forms of discrimination.
4. The Governments that answered the DDI questionnaire suggested numerous
aspects that could be the object of a future inter-American convention. Some of them (for
instance, discrimination motivated by religion, culture or language, vulnerable groups such
as the poor, homosexuals, the elderly and women), while obviously related to the question of
racism in that they are part of the general domain of protection of human rights, fail to
constitute, in the mind of the Juridical Committee, themes that could normally be considered
specific themes of the problem of racism and racial discrimination.
5. In certain paragraphs of this report, the Juridical Committee has suggested
certain concrete themes, some of which were also suggested in the answers of
Governments to the DDI questionnaire, which could be the object of a future inter-American
regulatory convention. The themes suggested by the Committee are as follows:
strengthening oversight and compliance mechanisms for the conventions on
human rights;
specific groups such as indigenous populations and ethnic minorities;
contemporary forms of racism and racial discrimination.
It is the understanding of the Juridical Committee that one of the themes suggested
(as well as those that are suggested by the Member-States or agencies of the Organization)
could become the subject of a future inter-American convention, by having consultations on
the need for or interest in adopting such a convention and the difficulties facing the adoption
of such an instrument.
6. However that may be, if it is decided to proceed to develop an inter-American
convention aimed at a particular aspect of the matter of racism and racial discrimination, the
Juridical Committee considers that such a convention should fall within the more general
framework allowed by the International Convention on the Elimination of All Forms of Racial
Discrimination and other universal and regional conventions on the same matter, which means
making express reference to these in the text of the new convention.
7. The Juridical Committee considers that it is opportune to recall that, in addition to
the conclusion of an inter-American convention, there exist other possible procedures for
74
regulating matters relating to racism and racial discrimination, particularly if it is the matter of
adopting complementary provisions to instruments already in place or regulating specific
aspects of limited scope. In this sense, mention could be made, for instance, of adopting
amendments to existing conventions, adopting interpretative declarations of same, and
drawing up additional protocols. Furthermore one must bear in mind the possibility of
resorting to procedures of a political nature, such as those recommended by the First and
Second Summits of the Americas (Miami, 1994 and Santiago de Chile, 1998), respectively,
and by the World Conference on Racism, Racial Discrimination, Xenophobia and related
forms of Intolerance, Durban 2001. Choosing the appropriate juridical or political means will
naturally depend on the matter to be ruled on and the political and legal force intended for
the regulation.
8. Some Juridical Committee members also consider that in view of the fact that
some conventions on racism and racial discrimination and related themes have not been
ratified by all members of the OAS, the agencies of the Organization might consider it
convenient to formulate requests to the States that have not yet done so to ratify or adhere
to said conventions. It was thus understood that the recommendation could be made for the
American States that are parties to the conventions against racism and racial discrimination,
to take the necessary steps to comply with the obligations arising from them, including the
adoption of national laws and regulations.
75
3. Cartels and competition law in the Americas
Resolution
CJI/RES.45 (LXI-O/02): Cartels in the sphere of competition law in the Americas
Documents
CJI/doc.102/02: Cartels and competition law in the Americas: hard core and export
cartels (presented by Dr. Jonathan Fried)
CJI/doc.106/02 Cartels in the sphere of competition law in the Americas(presented
by Dr. Joo Grandino Rodas)
CJI/doc.113/02 rev.3 Inter-American Juridical Committee. Questionnaire on competion
policy and cartels
At the LX regular session of the Inter-American Juridical Committee (Rio de
Janeiro, February-March 2002), Dr. Joo Grandino Rodas, rapporteur for the topic,
informed the Committee that the Permanent Council had been very interested in this
topic at the time the Juridical Committee's 2001 Annual report was presented. It had
suggested that the title of the topic on the Juridical Committee's agenda be changed to
add the word "cartels", while keeping the topic on the agenda for follow up.
At its XXXII regular session (Bridgetown, Barbados, June 2002), the General
Assembly adopted resolution AG/RES.1844 (XXXII-O/02) wherein it again asked the
Inter-American Juridical Committee to pursue its studies on the subject of competition
law and the various forms of protectionism in the Americas, so that the results of those
studies could be included in its next annual report to the General Assembly, bearing in
mind the efforts already under way in the Organization and other international
institutions.
At the Inter-American Juridical Committee's LXI regular session (Rio de Janeiro,
August 2002), Dr. Joo Grandino Rodas summarized the topic, indicating that it first
made its appearance under the more general heading of competition law. Then, at the
Committee's previous session, it was decided to narrow the topic to the question of
cartels, given how serious the problem was and how difficult it was to combat within a
given country or economic block and even at the global level. He recalled that two
reports on this subject had already been presented in the Inter-American Juridical
Committee. He then introduced the document CJI/doc.106/02 titled Cartels in the shpere
of competition law in the Americas. It was provisional in nature, he said, as the laws of
certain countries that did not yet appear in the document would need to be added to
make the document complete. The rapporteur described the documenťs layout, stating
that it covered the following points: cartels and international cartels; domestic laws on
this subject (United States, Canada, Brazil, Chile, Germany, France and Italy ­ the
rapporteur asked the other members to make an effort to obtain the laws of other
countries); recent amendments to the laws and policy of the countries on this subject;
the practice and enforcement of these laws; problems with regulation, and international
economic agencies that concern themselves with this topic at both the regional and
global levels. The rapporteur stated that it was his intention to include competitionrelated
cases that occurred and were decided within the last three years in the countries
of the hemisphere, to add to the information already reported in other documents.
76
Dr. Grandino Rodas described the work being conducted in UNCTAD, the OECD,
the WTO and the FTAA. He concluded that this issue was important to all countries of
the hemisphere ­not just a few- and suggested that the Committee's final paper be
published.
Dr. Jonathan Fried presented document CJI/doc.102/02, Cartels and competition
law in the Americas: hard core and export cartels. There he described the history of this
topic within the Juridical Committee and discussed export cartels and their marketskewing
effects. He also said what international organizations like the OECD, the WTO
and the FTAA have had to say about these cartels and recommended that the InterAmerican
Juridical Committee send the work it had done thus far on the competition
laws and policies in the Americas to the suitable organs of the Organization, with the
indication that the Committee was ready to share its experience and knowledge with
those responsible for the FTAA negotiations.
Dr. Fried observed that not all cartels should be viewed as harmful or anticompetitive.
The main question was how to better regulate the way in which cartels that
could have some cross-boundary effect operate. He cited the example of a cartel that
might be positive for one country but harmful to another, which would invariably create a
conflict in the application of the laws.
The rapporteur suggested that a second type of cartel posed an even greater
challenge: cartels formed to product effects in the countries to which their products were
exported, thereby creating a problem for the countries that imported the material. In a
system that encouraged free commerce, the question was whether the national
authorities' acceptance of cartels of this type should be regarded as something healthy,
unhealthy or neutral.
During this session, Dr. Joo Grandino Rodas, rapporteur for the topic, presented
document CJI/doc.113/02 to the Committee's other members. It contained a proposed
questionnaire intended for the authorities on cartels in the OAS member States. Dr.
Jonathan T. Fried stated that the topic should focus on export cartels. As the approach
proposed by the co-rapporteur was a different one, a new questionnaire was prepared
during the recess period and sent to the Permanent Missions to the OAS and different
agencies and national institutes by the end of October, contained in document
CJI/doc.113/02 rev.3 Questionnaire on competition policy and cartels, which is
presented in this Annual report. Lastly, the Inter-American Juridical Committee adopted
resolution CJI/RES.45 (LXI-O/02), Cartels in the sphere of competition law in the
Americas, which welcomed the studies presented by the two rapporteurs at this regular
session. In that resolution the Committee also asked the national authorities of the OAS
member States competent in competition-related matters, through the Secretariat for
Legal Affairs, to supply information about laws, recent cases and practices, to be passed
on to the rapporteurs; it asked the rapporteurs to prepare a revised, combined report,
taking into account the exchange of views within the Juridical Committee and the
information received from the national authorities, which would be conveyed to the
General Secretariat as soon as possible. The Inter-American Juridical Committee also
resolved to continue to examine this topic at its next regular session, based on the
rapporteurs' final report, so that the Inter-American Juridical Committee could adopt
77
appropriate recommendations and publish a final report, which would then be distributed
among the member States.
This resolution and the reports presented by the rapporteurs appear below:
CJI/RES.45 (LXI-O/02)
CARTELS IN THE SPHERE OF
COMPETITION LAW IN THE AMERICAS
THE INTER-AMERICAN JURIDICAL COMMITTEE,
RECALLING the request of the General Assembly in resolution AG/RES.1844
(XXXII/O/02) that the Committee continue to pursue its study on various aspects of
competition law in the Americas;
RECOGNIZING the desirability of promoting more effective control over anticompetitive
practices in the Americas;
DESIRING to contribute to better understanding of the laws and policies relevant to
the regulation of cartels in this regard;
HAVING BENEFITTED from a thorough discussion of this subject at its current regular
session,
RESOLVES:
1. To welcome the preliminary studies presented by the co-rapporteurs, Dr. Joo
Grandino Rodas (Cartels in the sphere of competition law in the Americas, CJI/doc.106/02)
and Dr. Jonathan T. Fried (Cartels and competition law in the Americas: hard-core and
exporting cartels, CJI/doc. 102/02).
2. To request the national competition authorities of the members States of the
OAS, through the Assistant Secretariat for Legal Affairs, to provide the rapporteurs with
information on legislation, recent cases and practices.
3. To request the rapporteurs to prepare a revised, consolidated report, in the light
of the Committee's exchange of views and the information received from the national
authorities, for delivery to the General Secretariat as soon as possible.
4. To continue its consideration of this subject at its next regular session, on the
basis of a final report of the rapporteurs, with a view to adopting appropriate
recommendations and publication of a final report of the Committee for distribution to
member States.
This resolution was unanimously adopted at the session held on 16 August 2002, in
the presence of the following members: Drs. Brynmor Thornton Pollard, Jonathan T. Fried,
Orlando R. Rebagliati, Joo Grandino Rodas, Felipe Paolillo, Ana Elizabeth Villalta Vizcarra,
Carlos Manuel Vázquez and Sergio González Gálvez.
CJI/doc.102/02
CARTELS AND COMPETITION LAW IN THE AMERICAS:
HARD CORE AND EXPORT CARTELS
(presented by Dr. Jonathan T. Fried)
I. Background
The evolution of consideration of the subject of competition laws in the Americas
summarized well in Secretariat document OAS/GS.DDI/Doc.03/02 of June 13, 2002. As noted
78
therein, during its 60th
regular session, the Juridical Committee reviewed various aspects
raised in documents CJI/doc.23/00, Considerations relevant to a proposal to include
`competition law' as a topic to be studied by the Inter-American Juridical Committee, and
CJI/doc.78/01, International regulations on defense of competition. Following the
recommendation of the co-rapporteur, Dr. Joo Grandino Rodas, the Juridical Committee
decided that an appropriate focus for further study was the area of cartels.
During its 32nd
regular session (Barbados, June 2002), the General Assembly
approved resolution AG/RES.1844 (XXXII-O/02), whereby it renewed its request to the InterAmerican
Juridical Committee to pursue its study of the issue of competition law and the
various types of protectionism in the Americas, and include the results of those studies in its
next annual report, taking into account the work already done by the OAS and other
international institutions.
This report, prepared with the able research and drafting assistance of Ms. Mary-Ellen
Cavett, counsel in the Trade Law Division of Canada's Department of Foreign Affairs and
International Trade, provides an overview of recent developments in various international
forums regarding cartels, and proposes that, in the light of the substantial work already
underway, including in particular in the context of negotiations on a proposed Free Trade
Agreement of the Americas, that the Inter-American Juridical Committee conclude its selfinitiated
work on the subject, while indicating its willingness to respond to requests from
other organs of the organization to assist.
II. Overview
Recently, various international organizations have discussed the anti-competitive
practices and trade-distorting effects of international cartels. Some of these organizations
are now beginning to consider whether export cartels are trade-distorting.
1. What Are Export Cartels?
A cartel is a form of co-ordinated behaviour between firms that would otherwise be in
competition.1
Cartels are usually divided into two categories:
"hard core" cartels which engage in price-fixing, output restraints, market
division, customer allocation and bid rigging which may be expected to reduce
or eliminate competition;2
and cartels which may not harm competition
significantly, may be pro-competitive, or have beneficial effects outweighing any
anti-competitive effects. This category of cartels could include research and
development, and specialization or rationalization agreements.3
Hard core cartels may also include import and export cartels. Import cartels aim to
regulate the price or other terms of goods or services that are imported into the participating
firms' home markets. For example, an import cartel may manage demand and price of
crucial inputs, such as resource commodities.
Export cartels are co-operative arrangements among firms attempting to market their
goods and services abroad, to enter new markets, to expand their share of existing markets,
or to fix prices or outputs in export markets.4
Export cartels vary in scope and composition.
1
A "cartel" can be defined as agreements between firms that would otherwise be in competition with each other that aim to fix
prices, reduce output or allocate markets or that involve the submission of collusive tenders. See: WTO, Provisions on Hardcore
Cartels: Background Note by the Secretariat ("Background Note"), WT/WGTCP/W/191, dated 20 June 2002, at § 3.
2
A hard core cartel is defined by the OECD as "an anticompetitive agreement, anticompetitive concerted practice, or
anticompetitive arrangement by competitors to fix prices, make rigged bids (collusive tenders), establish output restrictions or
quotas, or share or divide markets by allocating customers, suppliers, territories, or lines of commerce. See: OECD,
Recommendation of the Council Concerning Effective Action Against Hard Core Cartels ("OECD Recommendation"), C
(98)35/Final, dated 13 May 1998, at § 2.
3
Competition Bureau (Canada), Options for the Internationalization of Competition Policy: Defining Canadian Interests at p. 13.
This paper is available on-line at http://strategis.ic.gc.ca/SSG/ct01519e.html.
4
An export cartel may not necessarily allocate market shares or fix prices, but may limit its actions to promotion and marketing.
79
Pure export cartels are directed exclusively at foreign markets whereas mixed export cartels
may restrain competition in the exporting country's home market as well as foreign markets.
National export cartels consist of suppliers from one country, while international export
cartels are comprised of suppliers from several countries.5
Finally, an export cartel may be
private (that is, the firms comprising the cartel are independent from government) or public
(the cartel is established and operated by government).
International hard core cartels generally fix prices, outputs or other elements of
competition across a number of national markets, often including the home countries of the
participating firms; in contrast, export cartels may undertake the same activities in export
markets, not their home markets. Further, export cartels are exempted from the national
competition laws of many countries (in some cases on condition of public registration)
whereas hard core cartels often are illegal and typically are carried on in secret unless or
until investigated and disclosed.6
2. Trade Distorting Effect of Cartels
Most countries appear to accept that hard core cartels can have the effect of
undermining the benefits that should flow from international trade liberalization. For example,
international hard core cartels can have an impact on market access by allocating national
markets among the participating firms. Further, hard core cartels impose heavy costs on
consumers and the economies of countries, including both developed and developing
countries, and adversely affect the development prospects of developing countries.7
Some academics and international organizations have suggested that export cartels
could potentially have a trade-distorting effect.8
For example, the WTO Working Group on
the Interaction between Trade and Competition Policy has suggested that an export cartel,
which resulted in discrimination between the domestic market and the export market, could
have a negative effect on other WTO Members.9
However, the WTO Secretariat notes that
"the view has been expressed that the extent of harm caused by export cartels is less than is
sometimes thought, in that not all export-related consortia or similar arrangements fix prices
or exercise market power."10
The issue of export cartels may be linked to that of import cartels. An import cartel
could be used to limit imports, such as through voluntary export restraints imposed against a
country's exports to another country.11
International organizations do not appear to have
considered the possible trade-distorting effects of import cartels, although the U.S.
International Competition Policy Advisory Committee recently suggested that governmental
practices that tolerate private anticompetitive conduct, such as import cartels, may be seen
as a de facto or de jure substitute for traditional protection for imports.12
See: Simon J. Evenett, Margaret C. Levenstein, and Valerie Y. Suslow, "International Cartel Enforcement: Lessons from the
1990s", The World Economy, vol. 24, no. 9 (September 2001), at pp. 1221-1245, fn. 3 ("Evenett, International Cartel
Enforcement"). This paper is available on-line at:
http://papers.ssrn.com/sol3/delivery.cfm/SSRN_ID265741_code010403580.pdf?abstractid=265741
5
Department of Foreign Affairs and International Trade (Canada), Competition Policy Convergence: The Case of Export Cartels
("Competition Policy Convergence"), Policy Staff Paper No. 94/03, dated April 1994. This paper is available on-line at
http://www.dfait-maeci.gc.ca/english/foreignp/dfait/policy_papers/1994/94_03_e/94_03_e.html#s3.
6
Background Note, at § 5.
7
See: OECD, New Initiatives, Old Problems: A Report on Implementing the Hard Core Cartel Recommendation and Improving
Co-operation, DAFFE/CLP(2000)3/Rev1, dated 23 March 2000, at page 2; and WTO, Report (2000) of the Working Group on
the Interaction between Trade and Competition Policy ("2000 Report"), WT/WGTCP/4, dated 30 November 2000, at § 39.
8
See, for example, Sadao Nagaoka, International Trade Aspects of Competition Policy, NBER Working Paper 6720, dated
September 1998, (this paper is available on-line at http://www.nber.org/papers/w6720), and Evenett, International Cartel
Enforcement.
9
WTO, Report (1999) of the Working Group on the Interaction between Trade and Competition Policy, WT/WGTCP/3, dated 11
October 1999, at § 26.
10
Background Note, at § 14.
11
Competition Policy Convergence, Annex.
12
International Competition Policy Advisory Committee (Antitrust Division), Final Report to the Attorney General and Assistant
Attorney General for Antitrust, dated 28 February 2000, at p. 206. This document is available on-line at
80
3. Domestic Competition Law and Export Cartels
Over 90 countries have domestic competition legislation; the vast majority of these
countries have some kind of ban against hard core cartels in their domestic legislation.13
There appears to be a consensus ­ at least among OECD members ­ that hard core cartels
are harmful to domestic economies and should be prohibited.
Most countries do not address the activities of export cartels in their domestic
competition legislation. Some countries ­ such as Canada and Sweden ­ permit export
cartels by exempting these cartels from the disciplines of domestic competition law.14
The
rationale for this exemption appears to be that domestic competition laws cover activities
affecting domestic markets; typically, export activities are presumed not to affect domestic
markets. Traditionally, a country's domestic competition law has been limited to activities
occurring in its territory and does not address conduct that does not have an effect in its
territory. In the United States, however, the Antitrust Division of the Department of Justice
has observed, in its 1992 and 1995 Guidelines for International Operations, that the Antitrust
Division will challenge foreign conduct that harms U.S. exports even if U.S. consumers are
not harmed. Example D in the Guidelines state that the agencies would assert jurisdiction
over foreign companies that agreed not to purchase or distribute U.S. products and agreed
to take all feasible measures to keep a U.S. competitor out of their market. Such agreements
would have `direcť and `reasonably foreseeable' effects on U.S. export commerce.
Various countries, such as the United States and Japan, require that firms organizing
an export association or export cartel formally register with a governmental agency to
receive an exemption.15
The author is not aware of any country prohibiting export cartels
under its domestic competition law.
As noted above, typically a country's domestic competition law does not address
anticompetitive behaviour that does not affect its territory. Increased international
coordination and cooperation by countries in the enforcement of competition policy has
helped address some cross-border enforcement issues. However, as discussed below,
some international organizations are considering the internationalization of competition
policy and whether to adopt international competition rules, including rules governing the
conduct of export cartels.
4. Consideration of Export Cartels by International Organizations
a) OECD
In 1998, the OECD adopted the Recommendation of the Council Concerning Effective
Action Against Hard Core Cartels ("OECD Recommendation").16
The OECD recommended
that member countries enact anti-cartel laws that effectively deter hard core cartels (such as
by providing for effective sanctions and enforcement procedures and institutions with power
to detect and remedy hard core cartels) and set out principles to guide co-operation between
competition authorities. The OECD Recommendation did not encompass export cartels.17
Recently, the Joint Group on Trade and Competition in the OECD has addressed the
application of the principles of transparency, non-discrimination and procedural fairness to a
http://www.usdoj.gov/atr/icpac/finalreport.htm.
13
WTO, Report (2001) of the Working Group on the Interaction between Trade and Competition Policy to the general council
("2001 Report"), WT/WGTCP/5, dated 8 October 2001, at § 100.
14
Evenett, International Cartel Enforcement, Table 3.
15
Evenett, International Cartel Enforcement, Table 3.
16
C(98)35/Final, 13 May 1998.
17
The definition of hardcore cartel used in the OECD Recommendation specifically excludes "agreements, concerted practices, or
arrangements that ... are excluded directly or indirectly from the coverage of a Member country's own laws". As noted in Section
D, most countries exclude export cartels from the disciplines of their domestic competition law.
81
possible future multilateral framework on competition.18
In a paper issued earlier this year,
the Joint Group considered de jure discrimination ­ that is, whether domestic competition
laws or regulations embody discriminatory principles which, if applied consistently, would
result in discrimination against foreign entities on the basis of nationality. The Joint Group
suggested that domestic competition laws that permit export cartels, either expressly or
implicitly, result in de jure discrimination. The Joint Group noted that:
[o]f course, it can be argued that this differing treatment of different types
of cartels is not discrimination. Competition laws are meant to protect domestic
consumers, or put another way, such laws do not protect foreign consumers.
The justification for permitting export cartels is that, in principle, they do not
harm domestic consumers. Moreover, one could argue that there is not a
contravention of the national treatment principle if foreign and domestic
enterprises are treated equally in terms of their participation in export cartels.
On the other hand, there may be a cross-subsidization effect in favour of
domestic producers from export cartels. That is, excess profits resulting from an
export cartel could be considered as a subsidy for domestic producers that is
not available to foreign producers of the same product.
............
In virtually every country there are exemptions of various kinds from the
prohibition against cartels.... State-owned enterprises are not subject to
competition laws in some (but not all) countries, and certain commercial
activities of governments, both national and local, may enjoy an exemption. In
some countries, "crisis cartels" are permitted. If these exemptions are available
only to domestic firms they are, on their face, discriminatory. One could imagine
in most of these situations that a foreign entity could be held liable for cartel
activity that an exempted domestic enterprise would not be prosecuted for.19
At the conclusion of its paper, the Joint Group questioned whether "tolerance by
governments of export cartels constitutes `discrimination'?" The Joint Group suggested that,
regardless of whether such action would be considered to be discriminatory conduct under
the WTO Agreement, the issue is how such action should be treated in a multilateral
framework on competition.20
b) WTO
The WTO has recognized the importance of competition principles in trade
liberalization agreements. A number of the WTO Agreements contain provisions related to
competition policy.21
Further, the WTO Working Group on the Interaction between Trade and
Competition Policy, which was established at the 1996 Singapore Ministerial, is studying
issues relating to the interaction between trade and competition policy, including provisions
for hard core cartels, as mandated by the 2001 Doha Ministerial Declaration.22
18
The principle of non-discrimination is embodied in national treatment and most-favoured nation (MFN) treatment obligations in
the WTO. The national treatment obligation requires that a WTO Member treat the goods or services of another WTO Member
no less favourably than it treats its domestic goods or services. The MFN treatment obligation requires that a WTO Member treat
the goods or services of another WTO Member no less favourably than it treats the goods or services of any other WTO
Member.
19
OECD, Applying Core Principles in a Multilateral Framework on Competition ("Applying Core Principles"), COM/DAFFE/TD
(2002)49, dated 10 May 2002, at §§ 59 ­ 61.
20
Applying Core Principles, at § 99.
21
For example, Article 40 of the Agreement on Trade-Related Aspects of Intellectual Property provides that Members are
authorized to enact domestic laws to combat restrictive provisions involved in technology licensing agreements and Article 3.5 of
the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (the "Antidumping
Agreement") states that the administering authority of a Member must take into consideration any restrictive business practices
when determining injury to a domestic industry.
22
Paragraph 25 of the Doha Ministerial Declaration instructs the Working Group on the Interaction between Trade and Competition
Policy, in the period until the Fifth Ministerial scheduled for September 2003, to "focus on the clarification of: core principles,
including transparency, non-discrimination and procedural fairness, and provisions on hardcore cartels; modalities for voluntary
co-operation; and support for progressive reinforcement of competition institutions in developing countries through capacity
building". The Ministerial Declaration is available on-line at
82
Recently, the Working Group has considered various ways in which to promote
greater coherence between trade policy and competition policy, including possibly more
firmly integrating competition policy within the WTO. The Working Group has suggested that
[t]he types of anti-competitive practices that were being discussed such
as international cartels, export cartels, import cartels and abuses of a dominant
position that had transboundary effects all had an international dimension and
had clear adverse effects upon international trade and development. Moreover,
in view of the criticism often levelled at the WTO that it created enhanced
freedom for producers without necessarily providing due protection for other
members of society, it would be difficult to explain that Members had come to
the conclusion that anti-competitive business practices that distorted
international trade were not a proper concern for the WTO to address.23
In a Background Note prepared earlier this year by the WTO Secretariat, the
Secretariat referred to exemptions or exceptions for certain types of cartels in domestic
competition laws, such as structural adjustment cartels, rationalization cartels, and import
and export cartels. Some WTO Members have suggested that such exemptions "should be
kept to a minimum and, ideally, phased out over time."24
c) FTAA
The Negotiating Group on Competition Policy has been negotiating a draft chapter on
competition policy which is intended, among other things, to advance the establishment of a
competition policy at the national or sub-regional level that proscribes the carrying out of
anti-competitive business practices. As part of the negotiations, proposals have been made
to include provisions on hard core cartels and to permit certain exemptions and exceptions
from national competition laws.
Conclusion and Recommendations
Significant analysis of cartels, including identifying and ascertaining the possible tradedistorting
effects caused by export cartels, has been undertaken in both the public and
private sectors. Possible improved disciplines, both under domestic and international law,
are under discussion in various negotiating forums, including the OECD, the WTO and the
FTAA.
In the light of these developments, it is recommended that the Inter-American Juridical
Committee forward its work to date on competition law and policy in the Americas to the
appropriate organs of the organization, and indicate that, rather than any further work being
undertaken by the Committee on its own initiative, the Committee stands ready to assist
those responsible for FTAA negotiations and others who may wish to draw on the
Committee's expertise in this field.
http://www.wto.org/english/thewto_e/minist_e/min01_e/mindecl_e.htm.
23
2001 Report, at § 101.
24
Background Note, at § 15.
83
CJI/doc.106/02
CARTELS IN THE SPHERE OF COMPETITION LAW
IN THE AMERICAS
(presented by Dr. Joo Grandino Rodas)
Table Of Contents
INTRODUCTION. 1.1 Cartels. 1.2 International Cartels. 2. RELEVANT LAW.
2.1 Americas. 2.1.1 Argentina. 2.1.2 Canada. 2.1.3 Brazil. 2.1.4 Chile. 2.1.5
Colombia. 2.1.6 Costa Rica. 2.1.7 Jamaica. 2.1.8 Mexico. 2.1.9 Panama. 2.1.10
Peru. 2.1.11 United States of America. 2.1.12 Venezuela. 2.2 Europe. 2.2.1
European Union. 2.2.2 France. 2.2.3 Germany. 2.2.4 Italy. 3. CROSS
REFERENCE. 3.1 UNCTAD. 3.2 OECD. 3.3 Doctrine Remarks and WTO. 3.4
Discussion to date at the FTAA Competition Group. 4. CONTRIBUTION TO
FTAA DISCUSSION
INTRODUCTION
1.1 Cartels
A cartel is an association by agreement among a group of companies that is designed
to prevent competition. Illegal cartel activity includes price-fixing, bid-rigging, and allocation
of volume, markets or customers. It is general knowledge that cartels harm consumers and
have pernicious effects on economic efficiency. A successful cartel raises prices above the
competitive level and reduces output. Consumers choose either not to pay the higher price
for some or all of the cartelized product that they desire, thus forgoing the product, or they
pay the cartel price and thereby unknowingly transfer wealth to the cartel operators. Further,
a cartel shelters its members from full exposure to market forces, reducing pressures on
them to control costs and to innovate. All of these effects adversely affect efficiency in a
market economy.
It is difficult to quantify the effects cartels have on the market. It would require
comparing the actual market situation under the cartel with that which would exist in a
hypothetical competitive market. Competition officials usually do not undertake to make such
a calculation, both because it is difficult to do and because their laws usually do not require
it. When an estimate of harm is necessary, however, most officials employ a proxy, which is
the unlawful gain accruing to the cartel members from their activity. In its simplest form, this
estimation is the product of the cartel "mark-up" above the competitive price and the
commerce affected (in units) by the cartel agreement. Even this calculation can be difficult,
as it requires an assessment both of the amount of "affected commerce" and of what the
"competitive" price would have been without the agreement.
The 1998 Recommendation of the Organisation for Economic Cooperation and
Development (OECD) Council Concerning Effective Action Against Hard-Core Cartels
("Cartel Recommendation") noted in its preamble that "hard-core cartels are the most
egregious violations of competition law and...they injure consumers in many countries by
raising prices and restricting supply, thus making goods and services completely unavailable
to some purchasers and unnecessarily expensive for others." The preamble notes further
that hard-core cartels "create market power, waste, and inefficiency in countries whose
markets would otherwise be competitive." The Recommendation calls on OECD members to
provide for "effective sanctions, of a kind and at a level adequate to deter firms and
individuals from participating in such cartels."
The 2000 Cartel Report of the OECD noted that an important step in enhancing anticartel
enforcement is "overcoming the knowledge gap concerning the harm done by hardcore
cartels." Improving public knowledge about the nature of this conduct and the harm that
it causes would bolster popular support for more effective action against it. The Report also
84
called for further work on sanctions against cartels, recognizing that the principal purpose of
such sanctions is deterrence.
1.2 International Cartels
Cartels are universally recognized as the most harmful of all types of anti-competitive
conduct, especially by OECD. Moreover, they offer no legitimate economic or social benefits
that would justify the losses that they generate. Thus, they are condemned in all competition
laws; in some countries they are classified as a crime. Sophisticated cartel operators know
that their conduct is unlawful and so they conduct their business in secret, sometimes taking
great pains to keep their agreements from the public and from law-enforcement officials.
More recently, however, competition agencies have begun to uncover and prosecute
large international cartels, whose participants are multinational companies headquartered in
different countries. Several of the international conspiracies had devised complex price fixing
schemes, which were augmented and made more transparent for their members by market
allocation agreements, either in the form of quotas or territorial agreements. In some cases
involving both domestic and international cartels, the cartel operators had designed
elaborate mechanisms to enforce the agreement and punish cheating.
2. RELEVANT LAW1
1.1 Americas
2.1.1 Argentina
In Argentina, there was a significant development on the policy level with the
introduction of the Law for the Defence of Competition 25.156 (Ley de Defensa de la
Competencia). This law was designed to modernize the National Commission for the
Protection of Free Competition (CNDC) by specifically defining illegal anti-competitive
practices as any practice that limits, distorts or restricts competition or is an abuse of a
dominant market position. It also provided the CNDC with clearer guidelines on the formation
of mergers and a monetary level at which such reviews were compulsory. Law 25.156 also
established the National Court for the Defence of Competition, which was given the power to
resolve conflicts and administer punishments in case of law violation. This and other aspects
of institutional strengthening were the key aspects of this new law.
2.1.2 Canada
Canada has only main statute governing all aspects of competition law, the Federal
Competition Act (ťhe Acť). The Act is administered and enforced by the Commissioner of
Competition who serves as the head of the Competition Bureau, a unit of the Ministry of
Industry. The Criminal Matters Branch of the Competition Bureau, consisting of
approximately 30 officers, investigates all matters relating to cartels and conspiracies. In
order to take jurisdiction over activities occurring outside Canada, a Canadian court will have
to find that it has both subject matter or substantive jurisdiction with respect to the alleged
offence and personal jurisdiction over the accused person.
Section 45 of the Act forms the core of Canadian cartel law. This provision states that:
every one who conspires, combines, agrees or arranges with another person, (i) to limit
unduly the facilities for transporting, producing, manufacturing, supplying, storing or dealing
in any product; (ii) to prevent, limit or lessen, unduly, the manufacture or production of a
product or to enhance unreasonably the price thereof; (iii) to prevent or lessen, unduly,
competition in the production, manufacture, purchase, barter, sale, storage, rental,
transportation or supply of a product, or in the price of insurance on persons or property or;
(iv) to otherwise restrain or injure competition unduly, is consequently guilty of an indictable
offence and liable to imprisonment for a term not exceeding five years or to a fine not
exceeding ten million dollars or to both.
1
Report on Developments and Enforcement of Competition Policy and Laws in the Western Hemisphere - Tripartite Committee
Organization of American States Trade Unit and "www.gettingthedealthrough.com"
85
Conspiracies are not per se illegal in Canada. Rather, the Act prohibits only those
conspiracies that have serious - "undue" - competitive effects, as determined under a "partial
rule of reason" analysis. There is no statute of limitations for Section 45 offences.As with
most other criminal offences, a conviction under the Act requires the Crown to prove beyond
reasonable doubt both the actus reas (illegal acts) and the mens rea (guilty mind) of the
offence. The actus reas is established by demonstrating that (i) the accused was a party to a
conspiracy, combination, agreement or arrangement, and (ii) the conspiracy, combination,
agreement or arrangement, if implemented, would likely prevent or lessen competition
unduly. In determining whether the agreement would or did cause an "undue" lessening of
competition, the court will consider the structure of the market and the behaviour of the
parties.
Proof of the mens rea of the offence is also a two-part test. First, the prosecutor must
demonstrate that the accused subjectively intended to enter into the agreement and had
knowledge of its terms. Second, the prosecutor must establish, using an objective test, that a
reasonable businessperson would have or should have known that the likely effect of the
agreement would be to cause an undue lessening of competition.
While Section 45 investigations traditionally have focused on price fixing, the section is
broadly worded and potentially catches many forms of cooperation amongst competitors,
including behaviour such as joint ventures and strategic alliances. The Act also prohibits
Canadian corporations from implementing directives from an affiliated corporation for the
purpose of giving effect to conspiracies entered into outside Canada (Section 46), bid-rigging
(Section 47) and both horizontal and vertical price maintenance (Section 61).
The issue of substantive jurisdiction over conduct taking place outside of Canada has
not been specifically canvassed in a contested criminal proceeding under the Act and, as a
result, some uncertainty remains regarding the assumption of substantive jurisdiction by the
courts over such conduct in criminal prosecutions under the Act. On the other hand, the
general principle governing a Canadian criminal courťs assumption of personal jurisdiction is
that a person who is outside Canada and not brought by any special statute within the
jurisdiction of the court is prima facie not subject to the process of that court. In other words,
if the statute under which the proceedings are brought does not make special provision for
the service of a summons outside the jurisdiction, then the court does not have jurisdiction
and cannot try the accused, unless the person or attorneys to the jurisdiction of the court are
present in Canada. For individuals who are not resident in Canada, a summons compelling
attendance before a Canadian court cannot be served abroad for an offence under the Act. If
no service has occurred, then Canadian courts will not have jurisdiction.
In international cartel cases, the Competition Bureau will often cooperate closely with
other competition agencies, either through formal processes or informally. Formal
procedures involve the invocation of Mutual Legal Assistance Treaties (MLATs), with the
United States and numerous other countries or, less formally, under competition Cooperation
Agreements, such as the Canada-USA and Canada-EU Agreements. Furthermore, there
may be very wide-ranging informal contacts among Canadian and foreign investigative
agencies on common issues during an inquiry. While it has been used sparingly, Canada
may cooperate with countries and undertake formal procedures in their own jurisdictions to
obtain evidence for a foreign investigation. These arrangements also permit Canadian and
other antitrust-enforcement agencies to coordinate their enforcement activities, exchange
confidential information and meet regularly to discuss case-specific matters.
During the years 1998 and 1999, the Competition Bureau experienced a busy year as
a result of better detection methods and of granting immunity or favourable treatment to
cooperating parties. More than $42 million was levied in fines. In addition, a number of cases
were discontinued for lack of evidence or for other reasons after formal inquiries were
conducted. The types of anti-competitive behaviour investigated by the Bureau are defined in
four separate Acts: the Competition Act, the Consumer Packaging and Labelling Act, the
Precious Metals Marking Act, and the Textile Labelling Act. These investigations included
such important sectors as services, electricity, telecommunications, marketing and heavy
86
industries, such as steel. These types of cases were pursued on both the domestic and
international level.
2.1.3 Brazil
Relevant legislations is Law no. 8.884 of June 11th
, 1994, at some points modified or
complemented by Law 10.149 of December 20th
, 2000, and both contain all the general
provisions regarding antitrust or competition matters. Brazilian law establishes both mergercontrol
rules and how to define, deter and punish anti-competitive conduct, including,
although not limited to, cartels. There is also Resolution no. 20, of June 9th
, 1999, issued by
Conselho Administrativo de Defesa Econômica, (CADE), which contains some definitions of
anti-competitive conducts.
It is interesting to remark that, until the beginning of the 1990s, price control by the
Federal Government made cartel enforcement totally unimportant. With Federal Government
control over prices, the pricing authorities were obviously more in control of the market than
the antitrust or competition authorities. Price control has a tendency to create cartel-like
conduct, and they were, in effect, stimulated by the Government.
Nowadays, with the establishment of a free market by the Brazilian Federal
Constitution, cartel enforcement has become a main concern of competition authorities.
Enforcement of the competition law in Brazil is done by CADE, together with the Secretaria
de Direito Econômico of the Ministry of Justice and Secretaria de Acompanhamento
Econômico of the Ministry of Finance, all administrative authorities, although CADE is the
only one that is independent from the Federal Government. Cartel is also a criminal offence
governed by Law 8.137, of December 27th
, 1990, which deems basically the same facts,
described as administrative offences, to be crimes. However, the approach is substantially
different. Administrative offences are punished by the competition or antitrust authorities,
whereas crimes are investigated by the police, who present their conclusion to the State
Attorney who, if and when he judges that a crime has been committed, will sue the persons
who acted in the name of the relevant companies. Usually, and by the nature of their role,
State Attorneys do not adopt a very economics-oriented approach to such investigations.
The regime captures actions outside the jurisdiction that have effects in Brazil, eg
global cartels or cartels arranged outside Brazil so as to have effects in Brazil. The first
condemnation of a hard-core cartel by CADE occurred in 1999 (Steel cartel). In addition, the
cooperation agreement with United States, permitted administrative procedures to be
initiated against two international cartels.
In Brazil, all competition authorities have been working jointly with Federal Regulatory
Agencies (National Agency for Electric Energy, National Agency of Telecommunications,
National Agency of Supplementary Health, etc.) in order to update or eliminate excessive
rules, aiming to stimulate concurrence. In addition, actions have been taken to identify errors
in current regulatory structures and some proposals of regulatory measures to stimulate
concurrence have been made: participation in Law n 9.787/99 to promote concurrence in
the pharmaceutical sector, the participation in Project of Law n 266/96 to increase efficiency
and productivity in the sanitary sector, analysis of deregulations in civil aviation, participation
in discussions about new models to adjust tariffs on federal toll roads, and in the case of oil
derivates, to undertake measures aimed to continue the deregulation process to liberalize
prices.
Recent developments in Brazilian law include: CADE's resolutions and SEAE's
Directives and Acts. Together, these acts provide a guide for economic analysis of mergers,
criteria to penalize companies that delay or deny requested information during anticompetitive
investigations, and regulate the investigation faculties of antitrust agencies in
anti-competitive and merger cases. Lastly, recent Law n 9.781/99 establishes procedural
taxation for competence processes at CADE.
2.1.4 Chile
Antitrust legislation in Chile is Law Decree 211/1973 on the defence of free
competition (`the Free Competition Acť). The Free Competition Act contains rules prohibiting
87
anti-competing agreements, the abuse of dominant position, and other restrictive practices
against free competition.
Competition rules in Chile are enforced by three antitrust agencies: the National
Economic Prosecutor's Office (Fiscalía Nacional Económica), the Antitrust Commission
(Comisión Resolutiva) and the Preventive Commissions (Comisiones Preventivas). The
National Economic Prosecutor's Office is a permanent public service, independent of any
other authority, created to investigate any conduct, act or agreement that tends to damage,
restrict, or eliminate economic competition in the market, and require that either a Preventive
Commission or the Antitrust Commission, as the case may be, take appropriate steps to
remedy the situation.
The Antitrust Commission, an independent entity, is the highest antitrust tribunal. The
Antitrust Commission is empowered to (i) investigate ex officio or at the request of the
National Economic Prosecutor any facts that may involve an act or agreement against free
competition; (ii) issue a decision and resolve, in each case, if necessary, the adoption of
measures to modify or terminate acts, contracts, agreements or systems which are contrary
to the Free Competition Act; (iii) order the modification of the by-laws of any private legal
entity or its dissolution, the declaration of the inability of individuals to be appointed as
officers in professional organizations; and (iv) request the modification or derogation of legal
or regulatory stipulations that restrict or eliminate free competition, and the imposition of
fines on the liable parties.
There are 12 Regional Preventive Commissions located in each administrative
Region, and one Central Preventive Commission located in Santiago, the Chilean capital.
The Central Preventive Commission handles cases involving more than one Region, in
addition to the cases arising in the Santiago metropolitan area. The Preventive Commissions
are empowered to inform, answer questions and determine how individuals, corporations
and government agencies must deal with situations that hamper or restrict free competition.
No complaint can be filed with respect to practices or agreements previously submitted to
and approved by a Preventive Commission, unless the complaint is based on new evidence.
The Free Competition Act prohibits the execution or entering into of any act or
agreement that tends to prevent free competition in economic activities within the Chilean
territory. This prohibition encompasses both domestic acts or agreements and those related
to external trade, the effects of which are produced within Chile. It is not necessary that the
relevant acts or agreements effectively restrict or cause damage to free competition. The
Free Competition Act would apply if certain acts or agreements are capable of, or tend to,
hamper, restrict or eliminate free competition. In this regard, the Chilean antitrust authorities
have not limited their jurisdiction to private entities but have also investigated acts or
agreements executed or entered into by state-owned legal entities and regulated state
activities, such as fixing tariffs for public services.
The Free Competition Act sets forth certain acts and agreements that may be
unlawful, if they hamper, inhibit or prevent competition or tend to do so. The following acts
and agreements are included: control, reduction or stopping of production, markets or
sources of supply; the assignments of market zones for trading or distribution; the fixing of
prices, whether directly or indirectly; any restrictions on the freedom to work or the freedom
of workers to organise, assemble or enter into collective bargaining agreements within each
company; and any interference with the legitimate access to an activity or job.
Monopoly concessions granted by the State in favour of individuals are against the
Free Competition Act although monopolies can be granted by law to state-owned businesses
or public institutions. No de facto monopolies are per se illegal.
The Free Competition Act penalises any person who executes or enters into,
individually or collectively, any deed, act, or agreement that tends to prevent free competition
within Chile in economics activities, both those of an internal nature and those relating to
foreign trade.
88
Chile has entered into free-trade treaties with Canada and Mexico. In such treaties,
the signatory countries formally agree to inter-agency cooperation and coordination between
their antitrust authorities to further effective competition law enforcement in the free-trade
area. Such countries must cooperate on issues of competition law-enforcement policy,
including mutual assistance, notification, consultation and exchange of information relating to
the enforcement of competition laws and policies in the free-trade area.
2.1.5 Colombia
In Colombia, the new Decree 2666, 2000, rules the participation of the
Superintendency of Industry and Commerce in cases of mergers and acquisitions. It also
rules the procedure for decision-making for the Competition Agency in cases of anticompetitive
practices.
2.1.6 Costa Rica
In Costa Rica, although there were no changes in relevant competition Law no. 7.472,
there is a project in the legislature to reform some of its content.
2.1.7 Jamaica
In Jamaica, the Commission regulates competition in many sectors vital to its
economy, and also plays an important role in the development of competition policy within
the CARICOM nations as a representative in the Free-Trade Agreement Area negotiating
sessions on competition policy. Domestically, the Commission rules on sectors that included
telecommunication, financial services and automotive sales. Although there are no recent
official changes to the policies governing the Federal Trade Commission, there are several
proposed changes that are worth noting. Draft amendments have been submitted to the
Chief Parliamentary Counsel (CPC). These amendments are expected to be tabled in
Parliament during the 2000/2001 Financial Year. The amendments are designed to clarify
the legal jurisdiction of the Commission, strengthen its enforcement capabilities and lead to
greater uniformity in the FCA. Also, The Draft of the Fair Competition (Notice and
Procedures) Regulations 2000, which includes The Notice of Examination, Notice to Produce
Documents and Settlement Procedures was completed by the CPC and will shortly come
into force.
2.1.8 Mexico
In Mexico, a Code of Regulations was issued in order to further implement the Federal
Law of Competition which effectively established mechanisms to enforce the Law with regard
to monopoly practices, concentrations and barriers to inter-state commerce. In addition to
helping to simplify many aspects of the Commission's procedures, this widely applied Code
also aided in the promotion of greater transparency through the official gazette (Diario Oficial
de la Federación) in broadening participation of economic agencies in the proceeding and
increasing efficiency in identifying prohibited actions and the laws that correspond with those
acts. Investigations of monopolistic conduct and other restrictions on competition, as well as
attention to consultations from economic agents, are an upward tendency. The Commission
rules on a wide number of issues ranging from absolute monopoly practices, such as price
agreements, to relative monopolistic practice and interstate trade. These ruling included, but
were not limited to, sectors such as agro-industry, information technology, banking and
financial services, and the telecommunications industry.
2.1.9 Panama
In Panama, although there were no new laws or regulations specifically pertaining to
competition policy, a law was passed that made March 15 the "Day of the Rights of the
Consumer." The public-affairs initiative focuses on education to guarantee that Panamanian
consumer are properly informed of their rights that are guaranteed by law. This initiative aims
to point out the importance of maintaining open competition and equal access to all markets.
Major cases in anti-competitive practices (cartels or otherwise) dealt with industries such as
flour production, newspapers and airlines.
89
2.1.10 Peru
In Peru, in 1998 the Regulation for the Notification process for mergers in the Electric
Sector strengthened the powers of the Commission on Free Competition, an act for which
delineated a specific process for the authorization of merger operations in the
aforementioned sector. Law n 26976, the Antitrust Act, applicable in the Electricity Sector
established this Regulation, and subsequently contains all provisions stipulated in that Law.
This Regulation describes the legal process for notification in both horizontal and vertical
mergers, a concrete manner and criteria for evaluations of the operation, a series of legal
recourses for the Commission if a company does not comply with the Antitrust Act, the
Regulation or the Decisions of the Commission or the Court. In addition to the tasks of
monitoring markets, conducting investigations and analysing cases, and the effects of the
new Regulation, the Commission plays a role in activities in the area of privatisation. As a
result of the recent privatisation of the electric sector, a large number of the cases dealt with
by the Commission had to do with matters relevant to this privatisation.
2.1.11 United States of America
Relevant law on competition is Section 1 of the Sherman Act, 15 USC § 1. The
Antitrust Division of the Department of Justice (`DoJ') enforces it. The Litigation Section of
the DoJ handles investigation and prosecution of cartels. These attorneys report to an
Assistant Attorney General. The Associate Attorney General of the United States oversees
the Antitrust Division.
The number and importance of successful international cartel prosecutions brought by
the Antitrust Division has increased since the early 1990s. Since 1995, the Antitrust Division
has made the prosecution of international cartels one of its highest priorities. Consequently,
it has devoted more of its resources to uncovering international cartel behaviour that has
significant economic consequences for American consumers. During fiscal year 2000, the
Antitrust Division conducted approximately 30 grand-jury investigations into suspected
international cartel activity. Currently, approximately one-third of the Antitrust Division's
criminal investigations involve suspected international cartel activity.
Section 1 of the Sherman Act prohibits "every contract, combination in the form of trust
or otherwise, or conspiracy in restraint of trade". It does not specifically identify the type of
conduct that is illegal. (However, the conduct described above has been found to violate
Section 1.) Cartel behaviour can be criminal under Section 1. In addition, cartel members
may be liable in private civil suits under Section 4 of the Clayton Act.
An international cartel arrangement that provides for price-fixing, bid-rigging or
allocation of volume, markets or customers, constitutes a per se violation of Section 1.
The US antitrust laws apply to conduct that occurs outside the United States that
produces a substantial effect within the United States. The 1995 DoJ and Federal Trade
Commission (FTC) Antitrust Enforcement Guidelines for International Operations (`the
International Guidelines') state that "[a]nti-competitive conduct that affects US domestic or
foreign commerce may violate the US antitrust laws regardless of where such conduct occurs or
the nationality of the parties involved".
However, there are two significant challenges to successfully investigating and
prosecuting international cartels: (i) gaining access to evidence and witnesses that are
located abroad ­ out of the reach of US subpoena power and search-and-seizure authority;
and (ii) obtaining jurisdiction in the US courts over not only the case itself, but also over
foreign defendants.
The Antitrust Division cooperates with foreign enforcement agencies and enlists their
support in assisting with investigations. This cooperation may range from (i) case-specific
arrangements, such as executing search warrants and sharing investigative information; (ii)
antitrust cooperation agreements with certain countries; to (iii) treaties.
The DoJ has several types of cooperation arrangements with foreign antitrust
enforcement authorities. These range from informal, case-specific arrangements to
90
cooperation agreements to treaties. The United States has antitrust agreements in place with
Australia, Germany, the European Union, Canada, Japan, Israel (signed but not in effect),
Brazil (signed but not in effect) and Mexico (signed but not in effect). These are `sofť
agreements that do not override applicable national laws of either party. In particular, `sofť
agreements do not permit sharing confidential information that could not otherwise be
disseminated pursuant to national laws.
Pursuant to the International Antitrust Enforcement Assistance Act (IAEAA), the
United States signed an agreement with Australia that permits the two nations' antitrust
enforcement agencies to share confidential information on both criminal and civil matters.
This agreement is considered `harď because it not only overrides otherwise applicable
national laws but is also binding on each country.
In addition to these bilateral arrangements, the DoJ has been working with the OECD
toward building a multilateral consensus among the former's Member States on a wide range
of antitrust and competition matters. For example, in 1998, the OECD ministers endorsed a
DoJ-introduced Recommendation on Hard-Core Cartels that encourages OECD member
countries to enact and enforce laws prohibiting hard-core cartels and to enter into
agreements with other countries to permit sharing evidence with foreign antitrust authorities
to the extent permitted by national laws.
Also, the FTC announced changes in the two thresholds of Section 8 of the Clayton
Act that define when it is unlawful for an individual to serve as an officer or director of two or
more competing corporations. These interlinking directorates would be illegal if each of the
two companies has capital, surplus, and undivided profits in excess of $14.73 million and the
competitive sales of each corporation exceed $1.473 million.
2.1.12 Venezuela
In Venezuela, Resolución N SPPLC/039 ­ 99 further defined the criteria for
determining if a concentration violates Article 11 of the Law to Promote and Protect Open
Competition. The legislation created a concrete process to evaluate if a concentration
generates negative effects on open competition in a particular market. In order to accomplish
this goal, the legislation describes a series of criteria used to evaluate a concentration.
These criteria include provisions that define the relevant market for the concentration, the
market share before and after the concentration and the barriers to entry in the market.
Additionally, the legislation considers the economic benefits that result from such a
concentration. The majority of the cases handled by the Superintendency, in years 19981999,
dealt with complaints about price-fixing, collusion and other types of anti-competitive
practices. The Superintendency also prepared sectoral reports on agriculture,
telecommunications, electricity and others, and participated in various projects and political
discussions related to deregulation throughout the economy.
2.2 Europe
European Union laws and those of some European countries are referred to
hereunder in order to make the present study broad and authorize comparison.
2.2.1 European Union (EU)
Within the European Union Member States, both national and EU competition laws
apply to cartels. As far as EU competition law is concerned, the relevant provision is Article
81 of the EC Treaty. The rules regarding enforcement procedures are contained in
Regulation 17.
The principal enforcement agency is the European Commission (the Commission).
DG Competition is the service responsible for the enforcement of the competition rules.
There is a special cartels unit within DG Competition, which investigates suspected cartels.
Investigations can also be carried out by the sectoral units in DG Competition within their
respective area of responsibility. Over the past three years the Commission has reaffirmed
various times its commitment to detecting and punishing `hard-core' cartels.
91
Article 81 is also capable of enforcement before the national courts in all the EU
Member States and, in some Member States, by the national competition authorities. Article
81 can apply to agreements concluded between undertakings located outside the EU but
which have an effect on competition within the EU.
The EU has cooperation agreements (either multilateral or bilateral) with certain nonEU
countries, notably the US, Canada, Australia, Japan and Switzerland. The most
significant of these cooperation agreements is the US mutual-assistance agreement which
provides for the EU and US authorities to notify each other where their enforcement activities
may affect the interests of the other, to assist each other in their enforcement activities and
to cooperate regarding the investigation of anti-competitive activities in the territory of one
party adversely affecting the interests of the other. As a result there has been growing
cooperation between the EU and US in cartel matters recently (eg in Lysine, Graphite
Electrodes and Vitamins). Contacts between the Commission and the US authorities have
become commonplace and there has been a number of staff visits. The cooperation
agreements do not allow the Commission to disclose confidential information received from
companies in the course of its investigations.
As regards the interplay between the EU and the national authorities in the Member
States, there is generally cooperation between the different authorities as to whether cases
are pursued at the national or EU level. There is no formal rule on avoiding double sanctions
in the event that there are dual investigations at the EU and national level.
2.2.2 France
Long-standing case law allows the application of the prohibition on cartels to
behaviour which has an effect on French territory, even though the participants in the cartel
are located outside French territory. This construction has been endorsed recently by the
Law on the New Economic Regulations. This Law amended Article L 420-1 of the New
Commercial Code by specifying that cartels are prohibited "even [when] directly or indirectly
[implemented] by a company of a group located outside France".
At the European level, the Competition Council may assist foreign authorities in
specific antitrust cases, in particular the European Commission. As a result, at the European
Commission's request, the French authorities may initiate investigations that the European
Commission deems necessary (Article 14(1) of Regulation 17/62) or even execute orders,
pursuant to a specific decision (Article 14(3) of Regulation 17/62).
If they affect trade between Member States, anti-competitive agreements having an
effect within French territory may be subject to both EU law (Article 81) and French law
(Article L 420-1 of the Commercial Code). Consequently there is a risk of a conflict between
the decisions of the French authorities and those of the European Commission. To ensure
the uniform application of EU Law, the Competition Council should normally suspend its
decision until the European Commission renders its final decision.
Theoretically, the Competition Council may render a decision under French law
penalizing an anti-competitive practice, while the European Commission is able to punish
similar practices under EU Law. However, the Competition Council has often postponed its
decision until the decision of the European Commission is adopted.
Pursuant to the new Article L 462-9 of the Commercial Code, cooperation between the
European Commission and the French authorities regarding the communication of
information and documents and the conduct of investigations has been given a legal basis.
2.2.3 Germany
The relevant legislation applies to all restraints of competition which have effects
within Germany (effects doctrine, Auswirkungsprinzip, Act Against Restraints of Competition
§ 130(2). Foreign undertakings, therefore, are subject to the GWB to the extent that they
participate in restrictive agreements or concerted practices having effects on the German
market. The GWB may be applied to foreign undertakings even though they have never
been directly active in the German market, let alone maintained a German subsidiary,
92
branch or other business establishment. § 1 GWB applies if horizontal restraints on
competition are likely to affect the German market. Actual effects are not required.
Since 1958, rules on cartels have been an essential part of the Act Against Restraints
of Competition, or Gesetzgegen Wettbewerbsbeschränkungen (GWB), in Germany. The
GWB has been amended six times. The latest amendment in 1998 attempted to harmonise
German with EU law.
In addition to cooperation agreements with the US and France, the European
convention on the service of documents relating to administrative matters of 1977 provides
for mutual assistance concerning the service of administrative letters in foreign jurisdictions
(contract parties: Austria, Belgium, France, Germany, Italy, Luxembourg and Spain).
In practice, however, of greater practical importance, by contrast, is the close
(informal) cooperation between the national authority and the European Commission, which
most recently has been extended to the competition authorities of the other EU Member
States: since spring 2001, the competition authorities of the EU Member States and the
Commission have adopted a measure on closer cooperation, which is called ECA. This
(informal) cooperation includes meetings of senior officials every six months and working
groups on specific topics. So far, the European competition authorities have for example
discussed their leniency programmes and their approach to multiple merger filings.
As a matter of principle, the fact that certain cartels are investigated in other
jurisdictions may trigger similar investigations in Germany, provided the cartel is active or
has effects in Germany as well. The fact that an undertaking or individual may have already
been punished or fined in another country does not prevent the German cartel authorities
conducting an investigation and levying fines, and in calculating the amount of the fine they
will not necessarily take into account the fine already imposed in another country. As
investigations by national cartel authorities frequently concern the effects of a cartel within
different jurisdictions and markets, the problem of double punishment (no bis in idem) will
generally not arise. With regard to parallel investigations by the German cartel authorities
and the European Commission, the German cartel authorities may in principle investigate
and fine a cartel in parallel with the Commission (taking into account fines already imposed
by the Commission) but will normally refrain from conducting their own investigation if the
Commission investigates the case.
2.2.4 Italy
The Italian Competition Authority has been applying a per se rule in condemning
cartels, stating that when agreements between undertakings, even only potentially, reduce
competition substantially within the national market or in a substantial part of it, they are
prohibited (Article 2 of the Act). Vertical agreements may also be prohibited under Article 2.
The Authority, however, has often applied a rule of reason when investigating distribution
agreements and other kind of vertical arrangements
Pursuant to Article 2 of the Act, agreements are prohibited between undertakings which
have as their object or effect the appreciable prevention, restriction or distortion of competition
within the national market or within a substantial part of it. For the purpose of triggering the
Italian jurisdiction, one has to look at the effects of the conduct in the Italian market and not
where the conduct takes place. It follows that even if the conduct occurred abroad, but produced
anti-competitive effects in the Italian market, the conduct is caught under Article 2.
The Authority is a member of the various advisory committees set up by the
Directorate-General for Competition of the European Commission to receive the non-binding
opinions of the antitrust authorities of different Member States with regard to draft decisions
on Community cases relating to agreements, abuses of dominant position and
concentrations.
There are other forms of cooperation between the Authority and the Commission,
including the two-way exchange of information, and activities by the Authority to support the
Commission when inspections are conducted on companies in Italy. In compliance with
Section 54 of Law No. 52 of February 6 1996, issued in order to fulfil the obligations deriving
93
from Italian membership in the Community, the Authority can enforce Articles 81 subsection
1 and 82 of the Treaty establishing the European Economic Community having powers and
acting according to the procedures provided for the enforcement of the national legislation.
3. CROSS REFERENCE
3.1 UNCTAD
The international measures developed by the United Nations Conference for Trade
and Development, in its Set of Principles and Rules, suggest that collaboration at the
international level should aim at eliminating or effectively dealing with restrictive business
practices, including those of transnational corporations, through strengthening and improving
controls over restrictive business practices adversely affecting international trade, particularly
that of developing countries, and the economic development of these countries. In this
regard, action should include: (i) work aimed at achieving common approaches in national
policies relating to restrictive business practices compatible with the Set of Principles and
Rules; (ii) communication annually to the Secretary-General of UNCTAD of appropriate
information on steps taken by States and regional groupings to meet their commitment to the
Set of Principles and Rules, and information on the adoption, development and application of
legislation, regulations and policies concerning restrictive business practices; (iii) continued
publication annually by UNCTAD of a report on developments in restrictive businesspractices
legislation and on restrictive business practices adversely affecting international
trade, particularly the trade and development of developing countries, based upon publicly
available information and as far as possible other information, particularly on the basis of
requests addressed to all member States or provided at their own initiative and, where
appropriate, to the United Nations Centre on Transnational Corporations and other
competent international organizations.
Yet according to the Set of Principles and Rules: (i) consultations should happen
where a State, particularly of a developing country, believes that a consultation with another
State or States is appropriate in regard to an issue concerning control of restrictive business
practices. Accordingly, it may request a consultation with those States with a view to finding
a mutually acceptable solution. When a consultation is to be held, the States involved may
request the Secretary-General of UNCTAD to provide mutually agreed conference facilities
for such a consultation; (ii) States should accord full consideration to requests for
consultations and, upon agreement as to the subject of and the procedures for such a
consultation, the consultation should take place at an appropriate time; (iii) if the States
involved so agree, a joint report on the consultations and their results should be prepared by
the States involved and, if they so wish, with the assistance of the UNCTAD secretariat, and
be made available to the Secretary-General of UNCTAD for inclusion in the annual report on
restrictive business practices.
It is also believed there should be continued work within UNCTAD to the elaboration of
a model law or laws on restrictive business practices in order to assist developing countries
in devising appropriate legislation. States should provide necessary information and
experience to UNCTAD in this connection. Besides, UNCTAD considers it advisable to
implement within or with facilitation by UNCTAD - and other relevant organizations of the
United Nations system in conjunction with UNCTAD - technical assistance and advisory and
training programs on restrictive business practices, particularly for developing countries.
Therefore, experts should be provided to assist developing countries, at their request, in
formulating or improving restrictive business-practices legislation and procedures and
seminars, training programs or courses should be held, primarily in developing countries, to
train officials involved or likely to be involved in administering restrictive business-practices
legislation and, in this connection, advantage should be taken, inter alia, of the experience
and knowledge of administrative authorities, especially in developed countries, in detecting
the use of restrictive business practices. A handbook on restrictive business-practices
legislation should be compiled and relevant books, documents, manuals and any other
information on matters related to restrictive business practices should be collected and made
available, particularly to developing countries. Exchange of personnel between restrictive
business-practices authorities should be arranged and facilitated and international
94
conferences on restrictive business-practices legislation and policy should be arranged, as
well as seminars for an exchange of views on restrictive business practices among persons
in the public and private sectors.
Lastly, it is the view of UNCTAD that International Organizations and financing
programs, in particular the United Nations Development Program, should be called upon to
provide resources through appropriate channels and modalities for the financing of activities
set out above. Furthermore, all countries are invited, in particular the developed countries, to
make voluntary financial and other contributions for the above-mentioned activities.
3.2 OECD2
Laws of most OECD Member countries provide for the possibility of large fines against
enterprises found to have participated in a cartel. Maximum permissible fines may be
expressed either as a specific monetary amount or as a percentage of some measure of
turnover, or both. In the first category are Australia (AUD 10 million), Canada (CAD 10
million per count for conspiracies and discretionary for bid-rigging) and Mexico (375,000
times the minimum general wage prevailing in the Federal District, currently the equivalent of
about USD 1.5 million). In the second category, maximum fines expressed as a percentage
of turnover, are France (10% of world-wide turnover), European Union (10% of previous
year's global turnover), Hungary (10% of previous year's turnover), Italy (10% of previous
year's turnover), Sweden (10% of annual revenue), and United Kingdom (10% of UK
turnover for the duration of cartel, maximum three years).
Several countries have both types of "maximum" fines: Czech Republic (CSK 10
million or 10% of "net turnover" for previous year), Finland (EUR 672,752 or 10% of previous
year's global turnover), Ireland (EUR 3,809,214 million or 10% of previous year's turnover),
Japan (administrative surcharge of up to 6% of cumulative sales of products subject to the
agreement, maximum three years, criminal fine of up to JPY 100 million), Korea (surcharge
of 5% of turnover affected by cartel or KRW 1 billion, criminal fine of up to KRW 200 million),
Netherlands (EUR 450,000 or 10% of turnover), Poland (the lesser of EUR 5 million or 10%
of previous year's turnover) Slovak Republic (SKK 10 million or 10% of previous year's
turnover), Spain (EUR 901,518 or 10% of previous year's turnover) and Turkey (TRL 200
million or 10% of previous years gross income). Two countries also provide alternatives, but
instead of total turnover the maximum is stated in terms of unlawful gains: Germany
(administrative fine of EUR 511,292 or three times additional profit from the cartel, and
United States (USD 10 million or twice the gain to the cartel or loss to the victims). A recent
amendment to the New Zealand law provided for three alternatives: the greater of NZD 10
million, three times the illegal gain, or if the illegal gain is not known, 10% of the enterprise's
annual turnover. Denmark and Norway provide for fines, but maximums are not stated. In
Norway a court can also order confiscation of the cartel gains.
Competition laws of OECĎs countries provide for a wide range of sanctions against
cartel participants, and by their terms they permit the imposition of heavy penalties. There is
a clear trend in several countries toward stronger sanctions in cartel cases, and other
countries are reviewing their laws and policies to provide for enhanced sanctions against
cartels.
The principal purpose of sanctions in cartel cases is deterrence. The decision to form
or join a cartel is primarily a financial one ­ cartels can rapidly and substantially improve their
participants' profitability. An effective deterrent, therefore, is one that promises, on average,
to take away the financial gains that otherwise would accrue to the cartel members.
Sanctions have another, related purpose in the cartel context ­ that of providing an incentive
for cartel participants to defect from the secret agreement and provide information to the
investigators.
2
Report On The Nature And Impact Of Hard-core Cartels And Sanctions Against Cartels Under National Competition Laws -
DAFFE/COMP(2002)7
95
The "carrot and stick" approach to cartel investigation requires that the "stick" ­ the
possible sanction ­ be sufficiently severe to give effect to the "carrot" ­ the opportunity to
avoid the sanction by co-operating. Thus, for both deterrence and co-operation purposes the
potential sanction must be substantial if it is to be effective.
3.3 Doctrine remarks and WTO3
The enforcement record of the 1990s has demonstrated that private international
cartels are neither relics of the past nor do they always fall quickly under the weight of their
own incentive problems. Even where cheating eventually undermines a cartel, consumers
may have been burdened by years of increased prices, and enduring barriers to entry have
often been created by strategic cartel behaviour. Of a sample of forty such cartels
prosecuted by the USA and EU in the 1990s, twenty-four lasted at least four years. And for
the twenty cartels in this sample where sales data are available, the annual worldwide
turnover in the affected products exceeded US$30 billion. Prevailing national competition
policies are oriented towards addressing harm done in domestic markets, and in some cases
merely prohibit cartels without taking strong enforcement measures. Aggressive prosecution
of cartels can deter collusion, but only where sufficient international cooperation exists to
gather evidence and prosecute offenders so that cartel participants actually have something
to fear.
In its 1997 Annual Report, the World Trade Organization (WTO) highlighted the
growing significance of international cartels for policy-makers, noting "there are some
indications that a growing proportion of cartel agreements are international in scope."
Increasing trade liberalization may, by increasing competition in formerly protected national
markets, have increased firms' incentive to participate in cartels. These cartels undermine
international integration and decrease the benefits of liberalization to consumers.
Export cartels are also a problem to be dealt with. They exist when associations of
firms cooperate in the marketing and distribution of their product to foreign markets. The
competition laws of virtually all countries exempt such export cartels from prosecution by
domestic authorities. In some legislation, exemptions for export cartels are explicitly
motivated by mercantilism: a desire to increase national exports and give national firms a
competitive advantage relative to firms based in other countries. In most cases, however,
this exemption is implicit in national competition laws, which cover only those activities
affecting the domestic markets and typically export activities are presumed not to affect
domestic markets. Several countries do, however, provide specific exemptions from
domestic laws for cartels that would otherwise violate domestic laws as long as their
activities are restricted to export markets. In most cases, however, no registration is
required, so there is very limited information regarding the number or activities of export
associations. When the USA passed the Webb-Pomerene Act in 1918, exempting American
export cartels from some of the USA legal provisions against cartelisation, most of its trading
partners did not prohibit cartels. The USA was then a relatively small player in many
international markets, and those markets were effectively controlled by legal international
cartels dominated by large European producers. Foreign cartels took actions to bar entry
from non-members, but USA firms were not allowed by USA law to join these international
cartels. USA firms were therefore blocked from exporting to these markets. In such an
environment, exemptions for export cartels were most likely export-promoting, even if they
did not necessarily increase substantially competition in foreign markets.
Presently, the likely effect of these exemptions for export cartels is to make it more
difficult for national governments to exchange information and evidence regarding the
activities of suspected international cartels. This is because nations are reluctant to provide
information about those acts that their exporters engage in which they consider to be legal
under their own laws. However, recent reforms of competition law in EU countries have
restricted or eliminated export cartel exemptions in some member states. For example,
Germany's new competition law explicitly omits its earlier provision for exemption and
registration of export cartels. The UK's 1998 competition law omits mention of the Fair
3
International Cartel Enforcement: Lessons from the 1990s - Simon J. Evenett, Margaret C. Levenstein, and Valerie Y. Suslow
96
Trading Law's provisions for exemption and registration of export cartels. Where countries
have provided explicit exemptions for export cartels, these do not appear to be widely used
by international cartels. For example, there is no mention of the existence of a WebbPomerene
Association in any of the recent international cartel convictions obtained by the
US Justice Department. The registration requirement may deter cartel participants from
availing themselves of the exemption. Firms engaged in price-fixing may prefer secrecy to a
limited immunity that might bring them to the attention of competition officials.
International cartels are a non-trivial impediment to the flow of goods and services
across borders. Recent enforcement experience suggests that widespread cartelisation in
certain industries has affected many nations' markets. This might not be a concern if national
antitrust laws provided a sufficient deterrent to international cartels -- however, both a priori
reasoning and the fragmentary record of international cooperation in this area suggests that
this is not the case. In particular, three aspects of cartel enforcement need reform. First, the
probability of a cartel being punished is considerably reduced by the current patchwork of
bilateral cooperation agreements on evidence collection and sharing with foreign
jurisdictions. Second, penalties based on national assessments of the pecuniary gains to
cartelisation are unlikely to deter cartels that operate in many countries' markets. Third,
vigilance should not end with a carteľs punishment, as former price-fixers often try to
effectively restore the status quo ante by merging or by taking other steps that lessen
competitive pressures and raise prices. Unless a pro-efficiency approach drives all
competition policy enforcement, the benefits created by keen international cartel
enforcement will be eroded by lax enforcement in other areas.
Following recommendations suggested by Simon J. Evenett, Margaret C. Levenstein,
and Valerie Y. Suslow4
, any proposed reform to international cartel enforcement should be
assessed, in large part, on the deterrent it provides to firms to cartelise markets in the first
place. That deterrenťs strength depends on the firms' perceptions of the probability of
getting punished and the size of any expected penalty. Although the pecuniary gains from
cartelisation may result from raising prices across the globe, recent enforcement experience
suggests that much of the evidence and many of the people responsible for international
cartelisation are to be found in the nations where the headquarters of globally-oriented firms
are located. This suggests that although calculations of the pecuniary harm should in
principle shift from the national to the global, at present reforms to the "investigative
technology" probably need only focus on cooperation between the industrial nations. As a
first response, it is tempting to advocate creating a global enforcement authority with powers
to collect evidence, conduct interviews, and then compute the global gains from cartelisation
and levy the appropriate fines. In principle, such a proposal could overcome the deficiencies
of the current system of national enforcement and bilateral cooperation. However, at this
juncture no nation appears ready to pool sovereignty in such an aggressive manner, or to
allow its citizens and firms to be punished by such a body. The EU's relatively weak
enforcement powers against price-fixing and the like are a testament to the reluctance of EU
members, who have been pooling sovereignty in other areas for decades, to cede powers in
cartel cases--even though the distortions to the free flow of goods and services across
European borders that cartels can engender are widely acknowledged. So, we should turn
our attention to more modest and perhaps more likely reform options. One option would be
to address the deficiencies of the current system of national corporate-leniency programs.
First, a provision should be introduced so that firms can simultaneously apply for leniency in
multiple jurisdictions and have those applications evaluated on the totality of the evidence of
cartelisation presented. Second, to reduce the uncertainty faced by the "first" firm to come
forward with evidence about a currently uninvestigated international cartel, corporateleniency
programs should state the minimum (non-zero) degree of relief from penalties. Such
a reform would further increase the incentive of any cartel member to "defect," making
cartelisation harder to sustain. Another option takes initial steps to remedying this deficiency.
Once the investigation turns to the matter of calculating pecuniary gain, this inevitably
controversial step could be turned over to a pre-selected panel of qualified and independent
4
Idem.
97
experts, who would reside in the signatories to a plurilateral agreement. This panel would
present estimates (with associated estimated standard deviations) of the carteľs gains
across all the affected nations that are parties to this agreement. The panel would break
down its estimate of the total gains to the cartel from each nation's markets, which
enforcement authorities would take into account when penalizing cartel members or when
making their case to a court to penalize cartel members. The obvious disadvantage of this
latter reform option is that gains from cartelising nonsignatories' markets are not taken into
account. Given the non-trivial amounts of information required to come up with a sensible
estimate of carteľs pecuniary gains, it is nave to blithely insist that any supra-national panel
estimate the global consequences of a cartel. Instead, a plurilateral agreement should have
open accession clauses to enable non-members that have developed both national
enforcement capabilities and which have attained a pre-specified degree of international
anti-cartel cooperation to join. Furthermore, thought could be given to informing nonsignatories
that their interests are affected by a cartel in return for a commitment to treat
leniently any firm that has volunteered information during the investigative stages. Taking
these proposals together, a reform process could unfold over time in which industrial
countries move from their current arrangements to the first through third options.
Strengthening national anti-cartel laws and commitments to enforcement are a necessary
prerequisite. The enhanced cooperation will foster trust between antitrust agencies, which is
essential if agencies are to have any faith in the intent and capacity of others to use the
ample discretion built into most anti-cartel laws to successfully conduct international cartel
investigations. Admittedly such a process would not immediately lead to the creation of a
supra-national anti-cartel agency.
An alternative to these reform options that has been proposed is a plurilateral or
multilateral agreement at the World Trade Organization (WTO). Such an agreement could
involve commitments to enact and enforce an anti-cartel law, and to cooperate with
investigations launched abroad. As there is less than ten years of experience with
international anti-cartel investigations, it is doubtful that best practices in enforcement have
evolved to such a stage that they could be codified in an agreement. This implies that any
such multilateral agreement would probably have to be based on minimum substantive
standards and implementation procedures. Investigative and prosecutorial discretion are
likely to remain and it is not obvious how a WTO dispute panel might assess whether a
government used that discretion in a manner entirely consistent with the agreement. The
likely outcome is that only those antitrust authorities that have not followed certain minimal
procedural steps would be found in violation, an outcome that is unlikely to result in
significant increases in the probability that cartel members will be punished. Finally, such a
WTO agreement is unlikely to ensure that the penalties for cartelisation are based on the
worldwide pecuniary gains. For all of these reasons a WTO agreement is, at present,
unlikely to remedy the deficiencies of national anti-cartel enforcement. However, the
international agreements described earlier could provide the basis for strengthening anticartel
enforcement in countries that currently are not willing or able to adopt and enforce
stronger anti-cartel laws. A WTO agreement could be crafted to explicitly address two forms
of privately-orchestrated and trade-related cartels. First, laws which permit recession cartels,
where firms under considerable competitive pressure -- potentially from imports -- to
engage in market division, could be banned on the grounds that the WTO already has wellestablished
safeguard mechanisms. Second, disciplines could be placed on legally
sanctioned export cartels. There appears to be a justification for letting small firms share the
considerable fixed costs of marketing and exporting; the objective should be to prevent such
arrangements from resulting in consumer welfare losses. Two disciplines could be imposed
on laws granting exemptions for export cartels: notification and unimpeded entry. Notification
would involve the publication of the names of the members of such cartels, which will
facilitate monitoring by antitrust officials in the importing country. A requirement that entry to
such arrangements be unimpeded would help both reduce any market power that is enjoyed
by existing members, and make coordinating any restrictive business practices more difficult.
98
3.4 Discussion to date at the FTAA Competition Group
The Negotiating Group on Competition Policy of the Free Trade Agreement Area
(FTAA) has been working towards consensus regarding competition and has already
established that national law and jurisdiction should always be respected at the FTAA. Also,
principles such as the due process of law and transparency regarding competition law
enforcement have already been agreed upon. On the other hand, international cartels pose
one of the most intriguing problems to the negotiating countries.
The seventeenth meeting of the Negotiating Group on Competition Policy of the Free
Trade Agreement Area was held in Panama from July 11th
1o 12th
, 2002. Representatives
from 23 countries of the hemisphere were in attendance: Argentina, Bahamas, Bolivia,
Brazil, Canada, Chile, Colombia, Costa Rica, Dominican Republic, Ecuador, El Salvador,
Guatemala, Haiti, Jamaica, Mexico, Panama, Paraguay, Peru, St. Kitts & Nevis, Trinidad and
Tobago, USA, Uruguay and Venezuela. The following is a list of the mains items that were
discussed:
Open exchange of ideas on the general issues and aspects associated with the
Draft Chapter on Competition Policy
Review of the terms of reference and bibliography presented by the Tripartite
Committee, for a subsequent study on Special and Differential Treatment
Review of the civil-society contributions that the delegations believed the Group
should evaluate
The Group drafted a Work Plan to take them through to July 2003; it will be
submitted to the TNC for consideration
Review of the Report to the TNC on the work carried out by the Group from May
2001 to July 2002 on all the mandates set out in the Buenos Aires Ministerial
Declaration, which reflects their concerted efforts to eliminate an increasingly
greater number of brackets.
4. CONTRIBUTION TO FTAA DISCUSSION
Given the discussions that have been going on at the Negotiating Group on
Competition Policy of the FTAA, it should be interesting to highlight the main concerns that
could be addressed at that Group in order to achieve the best consent possible:
(i) Should a cartel be condemned per se or should the rule of reason apply?
(ii) Should the countries involved in the FTAA adopt a positive comity when it
comes to enforcement of their national competition law?
(iii) To what degree should cooperation exist between FTAA countries regarding
investigation, judgement and/or sanction of cartels?
(iv) Should information exchange between FTAA countries regarding competition
matters be mandatory or discretionary? What about confidential information?
(v) Is it possible for FTAA countries to create some legal mechanism to facilitate
punishment of international cartels without violating the already agreed upon
respect to national sovereignty?
(vi) How will State monopolies be dealt with in view of the competition principles
already agreed upon by the FTAA?
99
CJI/doc.113/02 rev.3
INTER-AMERICAN JURIDICAL COMMITTEE
QUESTIONNAIRE ON COMPETITION POLICY AND CARTELS
QUESTIONS TO BE SENT TO OAS MEMBER STATES:
Note: If the information requested in questions 1 (a), 2 and 3 is included in a publicly
available document (such as the document prepared by the FTAA Negotiating Group
on Competition Policy entitled Inventory of Domestic Laws and Regulations relating to
Competition Policy in the Western Hemisphere, FTAA.ngcp/inf/03/Rev.2, dated March
22, 2002), and that information is up-to-date, complete and accurate, please provide a
reference to the appropriate section of that document.
Answers to be sent to OAS Member States:
1. (a) Does your country have legislation and/or regulations dealing with competition
policy? If so, please provide a brief description of your domestic competition law
(b) If your country does not have a domestic competition regime, is your country
currently considering adopting such a regime? If so, have you drafted legislation
and/or regulations to establish a competition regime? What is the status of the draft
legislation and/or draft regulations?
2. Please identify the domestic legislative, or regulatory, provisions that address cartel
activity (such as price fixing, market allocation, and bid rigging). Please provide a
description of these provisions.
3. Please provide information with respect to:
(i) the government department or governmental agency responsible for administering
and enforcing your competition regime;
(ii) the composition and role of this department or agency;
(iii) whether the functions of this department or agency are administrative or judicial in
nature;
(iv) whether decisions of the department or agency subject to review by a tribunal or
court;
(v) the process pursuant to which such decisions can be reviewed; and
(vi) the grounds for any such review.
4. Please summarize any recent significant decisions, either by the department or agency,
or by the tribunal or court, made with respect to cartels.
5. (a) Are certain cartels (such as, for example, export and import cartels) exempt from
your domestic competition regime? Please identify the types of cartels exempted from
your competition regime and explain the rationale for that exemption.
(b) Please describe the process pursuant to which a cartel can be exempted from your
domestic competition regime, including the government agency responsible for
exempting cartels, the grounds on which such exemptions can be granted or refused,
and the number of cartels were exempted within the past 5 years.
6. Does your domestic competition law regime provide that firms organizing an export
association or export cartel (or an import association or import cartel) must register with
a government agency to receive an exemption from your competition regime? If so,
please identify the government agency and indicate how many export associations or
export cartels (or import associations or import cartels) were registered by that agency
in the past 5 years.
100
7. Are there provisions in your competition regime that permit enforcement action to be
taken with respect to cartels having an effect in other jurisdictions?
8. What have been the areas of greatest difficulty and concern in the application of your
policies on cartels in your jurisdiction?
9. What governmental and/or nongovernmental efforts have been undertaken in training or
generally promoting awareness and public knowledge about cartel policies within your
jurisdiction?
Questions to be sent to the various regional trading blocks:
NAFTA, CARICOM, ANDEAN PACT, MERCOSUR, SICA (Central American Integration
System)
Note: If the information requested in questions 1, 2 and 3 is included in a publicly available
document (such as the document prepared by the FTAA Negotiating Group on
Competition Policy entitled Inventory of the Competition Policy Agreements, Treaties
and Other Arrangements in the Western Hemisphere, FTAA.ngcp/inf/03/Rev.2, dated
March 22, 2002) and the information is up-to-date, complete and accurate, please
provide a reference to the appropriate section of that document.
1. Has your organization adopted obligations with respect to competition policy applicable
within the territory of your organization?
2. Please identify the provisions of this competition policy that address cartel activity,
such as price fixing, market allocation, and bid rigging. Please provide a description of
these provisions.
3. Please identify the regional agency (or, if appropriate, the governmental agency in
each country) responsible for implementing, administering and enforcing these
obligations, and describe the composition and role of this agency.
4. Please summarize any recent significant decisions or developments of this agency with
respect to cartels.
101
4. Improving the administration of justice in the Americas: access to justice
Resolution
CJI/RES.40 (LX-O/02) Improving the administration of justice in the Americas: access to justice
At the Inter-American Juridical Committee's LX regular session (Rio de Janeiro,
February-March 2002), Dr. Brynmor Pollard, rapporteur for the topic, delivered a brief
oral report. Dr. Pollard pointed out that the issue of access to justice had taken on
increasing importance in recent years, and underscored the need to take measures in
this regard. The rapporteur noted that this topic had been on the agenda of the Meetings
of Ministers of Justice or of Ministers or Attorneys General of the Americas (REMJAs),
alongside such other topics as cyber crime and terrorism.Dr. Brynmor Pollard referenced
the document prepared by the General Secretariat, GE/REMJA/doc.77/01, Alternative
conflict settlement mechanisms in the justice systems of the American countries. Dr.
Pollard again emphasized the importance of the relationship between the Inter-American
Juridical Committee and the Justice Studies Center for the Americas. He reported that
some measures had already been taken to build up cooperation between the two.
Finally, he made reference to REMJA IV, which was held in Trinidad and Tobago, March
10 through 13, 2002.Several members of the Inter-American Juridical Committee spoke
to the importance of alternative conflict settlement mechanisms and also noted how
important it was to see the Inter-American Juridical Committee's recommendations
incorporated into the REMJA resolutions. Dr. Joo Grandino Rodas noted that
alternative conflict settlement mechanisms and access to justice were two different
topics. He noted that while they might have certain areas in common, the Committee
would be well advised to deal with them separately. He suggested that a new topic could
be added to the Committee's agenda; at the very least, they had to be distinguished in
some way. Dr. Kenneth Rattray explained that access to justice was in part a question of
whether individuals had the means to access the courts, it could also become a problem
of procedures, as all too often the goal of swift and effective justice was trapped in a
procedural quagmire. Dr. Eduardo Vío Grossi observed that this topic was so important
that two bodies had already been created to address it immediately, namely REMJA and
the Justice Studies Center for the Americas. He was, therefore, of the view that to be
effective, the Committee had to find its own angle on this question. He suggested the
idea of working on an eventual inter-American charter on the administration of justice,
spelling out basic, generally accepted principles of inter-American law that would enable
States to make progress on this front.
Finally, the Inter-American Juridical Committee approved resolution CJI/RES.40
(LX-O/02), Improving the administration of justice in the Americas: access to justice,
whereby it decided to keep this topic on its agenda, taking particular note of any relevant
decision forthcoming from the IV Meeting of Ministers of Justice or of Ministers or
Attorneys General of the Americas, held in Trinidad and Tobago, March 10 through 13,
2002. It also asked the rapporteurs that they take those decisions and any consultation
to be made with the Executive Director of the Justice Studies Center for the Americas
into account when preparing their proposals pertaining to the Inter-American Juridical
Committee's future work on this topic, so that those proposals could be submitted to the
Committee for consideration at its LXI regular session, scheduled for August 2002.
102
In resolution AG/RES.1844 (XXXII-O/02) adopted at its thirty-second regular
session (Bridgetown, Barbados, June 2002), the General Assembly asked the InterAmerican
Juridical Committee to continue cooperating with the work requested of it in
the future.
At its LXI regular session (Rio de Janeiro, August 2002), the Inter-American
Juridical Committee decided to make Dr. Ana Elizabeth Villalta co-rapporteur for this
topic.Dr. Joo Grandino Rodas observed that perhaps the examination of the more
general topic should also include the vehicles of specialized justice that facilitate access
to justice. Dr. Kenneth Rattray wondered what was the "justice" to which access was
sought and what were the means either available or aspired to in order to administer that
justice. These, he thought, were important issues to examine within the larger scheme of
the topic. He observed that the means available to guarantee justice and administer it
had to be central to any analysis. Dr. Felipe Paolillo observed that one important
consideration was the access that disadvantaged persons had to justice. Dr. Paolillo
was of the view that a necessary starting point for any exploration of this issue was to
examine the reasons why access to justice was problematic, noting that this kind of
information could surely be gotten from studies already done on this subject in various
countries. Dr. Carlos Manuel Vázquez said that in his opinion, access to justice was
mainly a problem of finances. Dr. Orlando Rebagliati suggested that when discussing
this issue, the Inter-American Juridical Committee should be careful not to duplicate
work being done in other political bodies and at the Justice Studies Center for the
Americas.Finally, the Inter-American Juridical Committee decided to continue discussion
of this subject, with particular emphasis on access to justice. The following is the text of
the resolution that the Inter-American Juridical Committee approved at its LX regular
session:
CJI/RES.40 (LX-O/02)
IMPROVING THE ADMINISTRATION OF JUSTICE
IN THE AMERICAS: ACCESS TO JUSTICE
THE INTER-AMERICAN JURIDICAL COMMITTEE,
CONSIDERING the mandate of the Thirty-First Regular Session of the General
Assembly in San José, Costa Rica, in June 2001, that the Inter-American Juridical Committee
continue its research into various aspects related to improvement in the administration of
justice in the Americas, in particular, the issue of access to justice by individuals;
MINDFUL of the need to take account of decisions of meetings of Ministers of Justice
or of Ministers or Attorneys General of the Americas relating to improving the administration
of justice in the Americas;
RECOGNIZING the contribution to be made to this subject by other bodies of the
Organization of American States, in particular, the Justice Studies Center for the Americas,
RESOLVES:
1. To retain the matter relating to "Improving the Administration of justice in the
Americas: access to justice" on the agenda of the Inter-American Juridical Committee,
particularly to take account of any relevant decisions of the Fourth Meeting of Ministers of
Justice or of Ministers or Attorneys General of the Americas, scheduled to be held in Trinidad
and Tobago during the period of 10 to 13 March, 2002.
2. To ask the rapporteurs, taking account of any such decisions and any
consultations with the Executive Director of the Justice Studies Center of the Americas, to
103
prepare for consideration at the 61st
regular session of the Inter-American Juridical
Committee in August 2002 proposals for further work on the subject-matter by the
Committee.
This resolution was unanimously adopted at the session held on 8 March 2002, in the
presence of the following members: Drs. Felipe Paolillo, Brynmor Thornton Pollard, Ana
Elizabeth Villalta Vizcarra, Carlos Manuel Vázquez, Kenneth O. Rattray, Joo Grandino
Rodas and Eduardo Vío Grossi.
104
105
5. Preparation for the commemoration of the centennial of the Inter-American
Juridical Committee
Resolution
CJI/RES.43 (LX-O/02) Preparation for the commemoration of the centenary of the InterAmerican
Juridical Committee
At the LX regular session of the Inter-American Juridical Committee (Rio de
Janeiro, February-March 2002), Dr. Eduardo Vío Grossi, rapporteur for this topic,
mentioned the three phases in the plan to mark the centennial year of the InterAmerican
Juridical Committee, as contained in resolution CJI/RES.26 (LVIII-O/01).
The Inter-American Juridical Committee approved resolution CJI/RES.43 (LXO/02),
Preparation for the commemoration of the centennial of the Inter-American
Juridical Committee, wherein it amended resolution CJI/RES.26 (LVIII-O/01); the
General Secretariat was instructed to carry out the provisions of 1.d, in accordance with
some of the guidelines therein established. In that resolution, Dr. Vío Grossi was named
to coordinate the program outlined in resolution CJI/RES.26 (LVIII-O/01), and was asked
to present a report on how the work was progressing at the Committee's next regular
sessions. The General Secretariat was asked to transmit this resolution, as soon as
possible, to the competent organs of the Organization, so that it might be considered
together with the Committee's Annual Report for 2002.
In resolution AG/RES.1844 (XXXII-O/02), adopted at its thirty-second regular
session (Bridgetown, Barbados, June 2002), the General Assembly encouraged the InterAmerican
Juridical Committee to continue to put forth its best efforts to develop that
program.
Because the rapporteur for the topic, Dr. Eduardo Vío Grossi, was not present at
the LXI regular session (Rio de Janeiro, August 2002), the decision was to prepare a
summary of the Inter-American Juridical Committee's discussions and to send it to the
rapporteur so that he might use it to move ahead with the preparatory works.
The Director of the Department of International Law reported that a note had been
sent out to the members and former members of the Inter-American Juridical Committee
in order to be able to plan publication of the centennial-commemorative book. He said
that he had already received some replies. As for the Inter-American Network, the
Director of the Department of International Law stated that a survey was being done of
all institutions and centers of learning in the Americas. He asked for any cooperation that
the members of the Committee might be able to offer him in putting that list together.
Finally, Dr. Carlos Manuel Vázquez was asked to contact the American Society for
International Law and the American Bar Association to explore how the Inter-American
Juridical Committee could use its contact with these two institutions to commemorate its
centennial year.
What follows is the text of the resolution that the Inter-American Juridical
Committee adopted at its LX regular session:
106
CJI/RES.43 (LX-O/02)
PREPARATION FOR THE COMMEMORATION OF THE CENTENARY
OF THE INTER-AMERICAN JURIDICAL COMMITTEE
THE INTER-AMERICAN JURIDICAL COMMITTEE,
CONSIDERING its resolution CJI/RES.26 (LVIII-O/01) of 22 March 2001 on
Preparations for the Commemoration of the Centenary of the Inter-American Juridical
Committee, which dealt with the Program to be carried out on that occasion and
BEARING IN MIND the provisions set forth in resolution AG/RES.1773 (XXXI-O/01),
adopted by the General Assembly of the Organization of American States at the 31st
regular
session to request that the Inter-American Juridical Committee proceed with preparations for
a program such as that contained in resolution CJI/RES.26 (LVIII-O/01), to be included in its
Annual Report for the year 2001,
RESOLVES:
1. To modify its resolution CJI/RES.26 (LVIII-O/01) of 22 March 2001 regarding the
Preparations for the Commemoration of the Centenary of the Inter-American Juridical
Committee, as follows:
a) to include in paragraph i of section d) of number 1 of the resolution part of same,
after the word "universities" and a comma, the terms "institutes, teaching
centers, commissions and national and international entities dedicated on the
Continent to the study, research, teaching and diffusion of the juridical matters of
international interest" and to consequently suppress in the same letter the
expressions "of the Continent" that appear after the word "universities";
b) to add, in paragraph iv of section e) of the same number 1, the denominations
"Inter-American Children's Institute", "Inter-American Indian Institute", "CentralAmerican
Court of Justice" and "Central-American Integration System."
2. To ask the General Secretariat to undertake the provisions set out in section d)
of the same number 1, according to the following indications:
a) to lend special emphasis during the current year to the constitution of the
RICEDI with the universities of the Continent, addressing them for this effect
through the Permanent Missions of the Member States before the Organization;
b) the Book will contain articles submitted by all the members of the Inter-American
Juridical Committee, ex-members of the same who so desire, and the staff of the
General Secretariat that also accept, which in any event, will focus on the work
carried out by or relating to this organ, to which end contact should be made with
the possible authors of these articles and a draft presented on the matter,
including, among other things, a budget, format, venue and date for printing,
considering for this effect the month of January 2005 as the deadline to receive
the material to be edited;
c) to submit a proposal for the design and printing of the poster;
d) to report at the next regular sessions on the status of these matters.
3. Without interfering in the functions of the Chairman and Vice-Chairman of the
Inter-American Juridical Committee and the requests made of the General Secretariat, to
designate Dr. Eduardo Vío Grossi as coordinator of the program referred to in
aforementioned resolution [CJI/RES.26 (LVIII-O/01)], in which capacity he should present, at
the following regular sessions, a report on the progress of this matter.
107
4. To request the General Secretariat to send this resolution as soon as possible to
the competent organs so that it might be considered together with its Annual Report for the
year 2001.
This resolution was approved unanimously at the session held on 8 March 2002 in the
presence of the following members: Drs Felipe Paolillo, Brynmor Thornton Pollard, Ana
Elizabeth Villalta Vizcarra, Carlos Manuel Vázquez, Kenneth O. Rattray, Joo Grandino
Rodas and Eduardo Vío Grossi.
108
109
6. International Criminal Court: V Joint Meeting with the Legal Advisors of the
Ministries of Foreign Affairs of the OAS Member States
Resolution
CJI/RES.37 (LX-O/02): International Criminal Court
Documents
CJI/doc.82/02 rev.1 Reflections on the future of the International Criminal
Court
(presented by Dr. Sergio González Gálvez)
CJI/doc.98/02 Effects of the link between the International Criminal
Court and the Security Council of the United Nations,
according to article 16 of the Statute of the International
Criminal Court
(presented by Dr. Sergio González Gálvez)
At the Inter-American Juridical Committee's LX regular session (Rio de Janeiro,
February-March 2002), the rapporteur for this topic, Dr. Sergio González Gálvez,
introduced document CJI/doc.82/02 rev.1, Reflections on the future of the International
Criminal Court, the first part of which set out the reasons why this topic was included on
the agenda of the Inter-American Juridical Committee. The goal was to understand the
problems that the Statute, as adopted, might pose and to find possible solutions. The
rapporteur pointed out that this was in no way an attempt to erode the Statute's stature
or to amend it. He made brief reference to the two questions included in his document
and pointed out that some of them articulated concerns expressed by some States in the
region. He also made reference to his conclusions, wherein he directed the reader's
attention to a document presented by the President of the International Court of Justice
to the United Nations Sixth Committee, expressing concern over the proliferation of
juridical organs at the international level.
Dr. Eduardo Vío Grossi recalled that the Inter-American Juridical Committee had
been given a mandate by the OAS General Assembly regarding this topic, which should
be interpreted within the context that inspired the resolution. Dr. Vío Grossi voiced his
concern that the approach being taken to the topic within the Juridical Committee might
be construed as a recommendation against the Statute's ratification, by pointing to
problems that the Statute posed. This was not the sense of the General Assembly
resolution. He went on to say that the General Assembly mandate did not ask the
Committee to include this topic on its agenda; it asked that the topic be included on the
agenda of the Joint Meeting with the Legal Advisors of the Ministries of Foreign Affairs of
the OAS Member States, as it pertained to the examination of the mechanisms for
dealing with and avoiding recurring egregious violations of humanitarian international
law and the international law of human rights, as well as the role that the International
Criminal Court played in this process. Dr. Vío Grossi added that the international debate
on this issue had concluded with adoption of the Statute, which was now before the
parliaments of every State for discussion and ratification. He also suggested that the
theme of the Declaration on the Centennial of the Inter-American Juridical Committee
should also figure on that meeting's agenda.
110
Dr. Orlando Rebagliati proposed that the Joint Meeting take a descriptive approach
to the current state of the Statute and discuss the progress made on the Preparatory
Commission. One of the principal concerns, he said, was whether the Assembly of
States Parties had been held by the time the Joint Meeting was held. From there, the
Meeting could examine the Statute's prospects of becoming a universal instrument and
suggest possible alternatives should those prospects not be promising.
Dr. Ana Villalta stated that a number of States were wrestling with the problems
described in the rapporteur's document. Those problems, she said, were hurdles that
would have to be cleared for a State to become party to the Statute. An appropriate
contribution for the Committee to make, she believed, would be to suggest the possibility
of providing interpretative statements on all these issues inasmuch as the Statute did not
allow reservations.
Dr. Kenneth Rattray observed that the potential problems any juridical instrument
could pose could be addressed while the instrument was being negotiated and
subsequent to its adoption. The best time to find out what problems the instrument might
create for States was when it was already in effect. Only then could it be determined
whether the instrument was suited to the ends it proposed to achieve. He pointed out
that the rapporteur's document could be an important reference point for the future,
especially for the Joint Meeting.
Dr. Carlos Manuel Vázquez observed that it should be very clear that the criticisms
of the Rome Statute included in the document presented by Dr. Sergio González Gálvez
were not being fully endorsed by the Inter-American Juridical Committee. He said that
he himself was not in agreement with some of the conclusions therein expressed. He
particularly disagreed with item 6 in the document, which concluded that the role that the
Rome Statute gave to the Security Council was a violation of the principles of ius
cogens.
Finally, and in light of the suggestions herein recounted, the Inter-American
Juridical Committee adopted resolution CJI/RES.37 (LX-O/02), International Criminal
Court, wherein it resolved to include the topic "International Criminal Court" on the
agenda of the Fifth Joint Meeting with the Legal Advisors of the Ministers of Foreign
Affairs of the Member States of the Organization of American States, pursuant to the
provisions of General Assembly resolution AG/RES.1770 (XXXI-O/01); to keep this as a
follow-up topic on the agenda of the Inter-American Juridical Committee; to take note of
document OEA/Ser.Q CJI/doc.82/02 rev.1, Reflections on the future of the International
Criminal Court, presented by the rapporteur for the topic, Dr. Sergio González Gálvez;
and to request the General Secretariat to present, prior to that Joint Meeting, a report
that included the status of the signatures, ratifications and adherences to the Rome
Statute, the pertinent references to the instruments adopted by the Preparatory
Commission of the International Criminal Court, and any other information and
commentary that might be relevant for that meeting.
In resolutions AG/RES.1844 and 1900 (XXXII-O/02), adopted at the XXXII regular
session (Barbados, June 2002), the OAS General Assembly resolved to continue to
sponsor these periodic meetings. It also asked the Committee to ensure that the agenda
for the next Joint Meeting includes a discussion of mechanisms to address and prevent
111
the recurrence of serious violations of international humanitarian law and international
human rights law, as well as the role of the International Criminal Court in that process.
At its LXI regular session (Rio de Janeiro, August 2002), the Inter-American
Juridical Committee decided to hold the V Joint Meeting the first week of August 2003.
Several members of the Committee promised to take the necessary steps so that the
Foreign Ministries would send their legal advisors to the meeting. Dr. Luis Herrera
Marcano was asked to join the rapporteur for the topic, Dr. Eduardo Vío Grossi, in
making the necessary arrangements to ensure the meeting's success.
For his part, Dr. Sergio González Gálvez introduced document CJI/doc.98/02,
Effects of the link between the International Criminal Court and the Security Council of
the United Nations according to Article 16 of the Statute of the International Criminal
Court, the text of which appears below, as do the documents presented to and adopted
by the Inter-American Juridical Committee during its LX regular session:
CJI/RES.37 (LX-O/02)
INTERNATIONAL CRIMINAL COURT
THE INTER-AMERICAN JURIDICAL COMMITTEE,
CONSIDERING resolution AG/RES.1770 (XXXI-0/01), International Criminal Court, of
the General Assembly adopted on 5 June 2001;
MINDFUL of its resolution CJI/RES.19 (LVII-0/00), International Criminal Court,
adopted on 19 August 2000;
STRESSING the importance of the Statute of Rome and the advisability that the
process of its coming into force and its evolution during its first few years proceed in a fashion
that it facilitates a universality of participation in the Statute,
RESOLVES:
1. To include the topic "International Criminal Court" in the agenda of the 5th
Joint
Meeting of Legal Advisors to the Ministries of Foreign Affairs of the Member States of the
Organization of American States, pursuant to resolution AG/RES.1770 (XXXI-O/01) of the
General Assembly.
2. To maintain that topic as a topic in question in the agenda of the Inter-American
Juridical Committee.
3. To take note of the document OEA/Ser.Q CJI/doc.82/02 rev.1, Reflections on
the future of the International Criminal Court Statutes, presented by the rapporteur of the
topic, Dr. Sergio González Gálvez.
4. To request the General Secretariat to present to the Juridical Committee, before
the aforementioned Joint Meeting, a report including the status of signatures, ratifications and
accessions to the Statute of Rome, references relating to the instruments adopted by the
Preparatory Commission of the International Criminal Court, and any other information and
comments that could be relevant to such a Meeting.
This resolution was unanimously adopted at the session held on 1st
March 2002, in the
presence of the following members: Drs. Felipe Paolillo, Brynmor Thornton Pollard, Sergio
González Gálvez, Ana Elizabeth Villalta Vizcarra, Kenneth O. Rattray, Joo Grandino Rodas
and Orlando R. Rebagliati.
112
CJI/doc.82/02 rev.1
REFLECTIONS ON THE FUTURE OF THE
INTERNATIONAL CRIMINAL COURT
(presented by Dr. Sergio Gonzálvez Gálvez)
During the 57th
regular session, the author hereof submitted reflections on the topic
reproduced in the document CJI/doc.21/00. At the same session the Juridical Committee
decided to include in its Agenda "Possibilities and problems of the Statute of the International
Criminal Court" and appointed the author hereof as rapporteur on the theme. Meanwhile the
General Secretariat was requested to obtain from the United Nations General Secretariat the
reports of the Preparatory Committee of the International Criminal Court to submit them to the
Juridical Committee together with any other documentation considered relevant, in
consultation with the rapporteur.
Given the size of the documentation available and its ongoing updates, on 16 October
2000, the OAS Department of International Law informed the Juridical Committee members
of the Internet address for rapid inquiries to the aforementioned preparatory papers.
During the 58th
regular session of the Inter-American Juridical Committee, the
Secretariat distributed among the members two large supporting documents on the topic.
Since the beginning of the study on this theme, the rapporteur expressed the
importance of having to ensure validity of a permanent International Criminal Court
independent of any other international body or organization, as a fundamental premise for
ensuring the support that an international court of this nature requires.
Consequently, the rapporteur explained, the intention to include this topic is not to
undermine the importance of this international instrument but rather to endeavor to fully
understand the problems that the Statute may raise as it was approved and, in its case,
analyze possible interpretations of those clauses that in the light of the practice of the States,
could cause some problem in the future.
The Juridical Committee thereby estimated, according to the decision taken, that it
could make an important contribution to the analysis of some of the topics relating to the
validity of the Statute of the International Criminal Court, which could be discussed at a later
Joint Meeting with Legal Advisors of the Ministries of Foreign Affairs of the Member States of
the Organization, as recommended by the General Assembly of the Organization of
American States (OAS) itself.
With this mandate in mind I make the following comments:
1. It is fundamental that the States Parties to the Statute fully understand that the Court is
complementary to the legislation of each country. That is, each country which accepts the
Statute of the International Criminal Court must adapt its legislation to what this Convention
provides, otherwise the International Court would be competent to know of all cases in which
some of the crimes included therein could be classified because there would be no applicable
national criminal jurisdiction.
I would like to mention one of the clearest explanations on the principle of the
complementary nature of the Statute of the International Criminal Court, in the article written
by Dr. Cláudia Perrone Moisés from the Department of International Law, Law Faculty of So
Paulo University, published in the Brazilian magazine Política Externa in its March/April/May
edition v.8, no. 4, by Paz e Terra, So Paulo, in 2000. She is right when she says that the
jurisdiction on crimes provided in the Statute is based, on one hand, on the obligation to
exercise criminal jurisdiction in relation to those responsible for international crimes referred
to in paragraph 6 in the preamble of the aforementioned international instrument. On the
other, the complementary principle is inspired necessarily on the principle of universal
113
jurisdiction applicable to crimes considered serious "for their particular cruelty, savagery and
atrocity", as mentioned in the International Law Committee of the United Nations when
studying the subject in 1984.
The aforementioned Brazilian jurist also mentions that the raison dťre of the
International Court is after all, for political reasons, to prevent underlying economic interests
or structural problems of internal jurisdictions that those accused of such crimes go
unpunished for the crimes committed by them.
The principle of complementariness expressly acknowledged in paragraph 10 of the
Preamble of the Statute and article 1 thereof is provided in detail in article 17, which
addresses "Issues of admissibility" namely in paragraphs 2 and 3 thereof. Yet because of its
importance and consequences, the States should be alerted to the need to update, before or
after the Statute prevails for them, their relevant military and penal laws and also create in the
Inter-American Juridical Committee a group of advisors who can support the countries in this
task.
2. The text of article 20 of the Statute could put in doubt the validity of the principle of res
judicata or non bis in idem; hence this is when an exchange of viewpoints on the matter
would seem convenient.
3. It is of the utmost importance to interpret the scope of article 54 of the Statute which
states that the Attorney General of the International Criminal Court may undertake
investigations in a territory of a State, even without the necessary consent of the
corresponding national Attorney General. If this interpretation is not correct perhaps an
exchange of points of view would be fitting at this moment.
4. The Statute includes as a penalty "Life imprisonment when the extreme gravity of the
crime so justifies and the personal circumstances of the convicted person", a precept which
undoubtedly could clash with those laws that prohibit life imprisonment, which is without a
doubt, an increasingly more widespread opinion worldwide.
5. By a strange parliamentary circumstance, a definition was included in the Statute of
"non-international armed conflict" taken from a decision in the Appeal Chamber of the
International Criminal Court for former Yugoslavia in the Tadic case which literally says "It
applies to armed conflicts occurring in a State territory, when there is a prolonged armed
conflict between the government authorities and organized armed groups or between such
groups". This definition goes in fact much farther than the definition which includes the
Protocol II on Non-International Armed Conflicts.
That clause could cause problems to some States which have action by different kinds
of territory armed rebel groups in their territory and which, for different reasons, do not
consider it in their interest to apply this definition to those groups.
6. If, as we all expect, the Court will be an independent institution, the link between State
and the UN Security Council should concern us, which gives the agency in question the
option to ask the Court to postpone for renewable twelve months (article 16) the investigation
or early stages of judgement of a crime. This point in our opinion requires careful analysis
and on the matter we would like to mention the point of view of the American Association of
Jurists on this topic. It considers that a treaty by which it is intended to set up an international
court which includes clauses subordinating the jurisdiction activity of the court somehow or
other to decisions of another agency and international organization, either to promote it,
suspend its action, delay or paralyze it, could be lawfully null, pursuant to article 53 of the
Vienna Convention on the Law of Treaties, which establishes a sanction for any convention
that is in opposition to an imperative rule of ius cogens general international law.
As the aforementioned American Association of Jurists states, clauses that establish
this subordination to the Security Council are against the principle of independence of the
judiciary and the right of any person to appeal to an independent court to settle the question,
which is an imperative rule provided in Articles 10 of the Universal Declaration of Human
Rights, 14 of the International Pact of Civil and Political Rights and 1 and 2 of the Basic
114
Principles relating to the Independence of the Judiciary, approved by the UN General
Assembly in its resolutions 40/32 and 40/46 of 1985.
7. Another problem raised by the Statute and which is relevant in the light of the current
international situation, is the fact that the chapter on "War crimes" includes, for example,
poisoned weapons and does not include mass destruction weapons, such as nuclear,
chemical and bacteriological weapons due to the opposition by some countries on this issue.
This could mean that should the Statute prevail and an attack of bacteriological, chemical or
nuclear weapons occur, as in the fear that it would occur after the terrorist attacks against the
USA on 11 September last year, it would be impossible to accuse those responsible before
that Court.
8. There are undoubtedly other considerations to be studied, although not with the priority
of those mentioned above. I refer, for example, to the provision in article 72 of the Statute
referring to the cases where dissemination of information or documents of a Party State, at its
discretion, could affect its security. Paragraph 5 thereof determines the measures that the
acting State may take to satisfy its concern on disseminating information that affects its
security interests, among which is included item d) according to which, among the
constraints, the procedure could be adopted behind closed doors or unilaterally, which could
be incompatible with the minimum guaranties that most laws grant the accused.
9. Likewise, there are clauses, such as those included in article 8 and in article 124 which
clearly favor the military powers who have troops beyond their borders, when it states in the
chapter on "War crimes" that the International Criminal Court will be competent regarding this
type of crime "when they are mentioned as part of a plan or policy or as part of the large
scale perpetration of such crimes" which suggests that, if it is an isolated act, despite its
seriousness, the phrasing would not apply to the Statute, to which in fact the International
Committee of the Red Cross objected at the Conference. In the second article mentioned
herein there is another provision, also in the chapter on "War crimes", with respect to a
country signing the Convention can state that during a seven-year period, the competence of
the Court will not apply, when the perpetration of one of these crimes described in the Statute
is denounced by its citizens or in its territory; a safeguard which does not apply to other
crimes included in the Statute, thereby giving unfair benefit to the military powers.
10. Lastly, mention must be made of the concern of some countries for the apparent
incompatibility between the so-called "handing over" clause of the accused person before the
International Court and the common precept in many constitutions regarding the prohibition
against extraditing citizens.
In conclusion, the purpose of considering this topic should, in the best of cases,
produce a document that alerts our Councilors to some of the problems that may arise once
the Statute enters in force. It is not to discuss whether it should enter in force, which could in
its case mean presenting interpretative statements from those who have not yet ratified. Or it
could mean to outline a common strategy with a view to the first reviewing conference of the
Statute which, according thereto, shall be called seven years after the aforementioned
international document enters in force. Nor should the existing concern be forgotten before
the proliferation of international juridical bodies, to which the President of the International
Court of Justice, Judge Gilbert Guillaume refers in a UN General Assembly in October 2000,
in a document entitled The proliferation of international juridical bodies: the outlook of the
international legal order.
Finally, I would like to request that, as my term of office on the Juridical Committee
ends this year, another distinguished member of the Juridical Committee be appointed to
assume the responsibility of rapporteur, should the topic continue on the Agenda.
115
CJI/doc.98/02
EFFECTS OF THE LINK BETWEEN THE INTERNATIONAL CRIMINAL COURT
AND THE SECURITY COUNCIL OF THE UNITED NATIONS,
ACCORDING TO ARTICLE 16 OF THE STATUTE OF THE
INTERNATIONAL CRIMINAL COURT
(presented by Dr. Sergio González Gálvez)
The adoption of resolution 1422 (2002) by the United Nations Security Council on 12
July concerning the non-application of the Statute of the International Criminal Court for the
next 12 months renewable to military personnel taking part in a United Nations peacemaintaining
operation, when these troops are sent by countries that have not ratified the
above-mentioned international instrument, has led to the following observations which I now
submit to the appreciation of the Inter-American Juridical Committee, which has a theme on
its agenda linked to this very matter.
It is regrettable that this resolution of the Security Council has come to confirm in full
the author's fears, as President of the Mexican Delegation to the Rome Conference that drew
up the Statute of the International Criminal Court, with regard to the political restrictions that it
places on the activity of the Court.
At the Rome Conference we argued that the inclusion of Article 16 in the Statute of the
International Criminal Court created an undesirable situation of the Court being dependent on
the Security Council. It will be recalled that Article 16 of the Statute establishes precisely the
following: "No investigation or prosecution may be commenced or proceeded with under this
Statute for a period of 12 months after the Security Council, in a resolution adopted under
Chapter VII of the Charter of the United Nations, has requested the Court to that effect; that
request may be renewed by the Council under the same conditions."
During the debate at the Rome Conference, we pointed out with regard to Article 16
that we shared the point of view of the American Association of Jurists, which upholds that a
treaty by which it is intended to set up an international tribunal that includes clauses that in
some way or another subordinate the Courťs jurisdictional activity to decisions of another
international body or organization, either for the purpose of promoting or suspending such
activity, delaying or paralyzing it, could be absolutely null, in accordance with Article 53 of the
Vienna Convention on the Law of Treaties, which stipulates this sanction for any Convention
that stands in opposition to an imperative norm of general international jus cogens law.
As the American Association of Jurists claims, clauses that establish this subordination
are contrary to the principle of independence of the Judiciary and the right of all persons to
appeal to an independent court to settle the question, a concept that in itself constitutes an
imperative norm, based on the provisions of articles 10 of the Universal Declaration of
Human Rights, 14 of the International Pact of Civil and Political Rights and 1 and 2 of the
Basic Principles Relating to the Independence of the Judiciary, approved by the General
Assembly of the United Nations in its resolutions 40/32 and 40/46 of 1985.
The above-mentioned resolution of the Security Council could also mean, as we have
already stated, that no citizen of the Permanent Members of the Security Council will ever be
prosecuted by that Court, which leads me to wonder: is this the kind of international court we
want to belong to?
We have seen in the mass media some articles on the advisability of all countries
ratifying the Statute of this court at once, yet, with very few exceptions, the commentators
have concerned themselves with analyzing the flaws of the Statute and the effects caused by
becoming Parties of the above-mentioned Statute; the dilemma here is: should we go ahead
and ratify, explaining at the very start the changes that we shall demand be made to the first
revising meeting of the Statute to take place 7 years after it came into effect, in order to try to
116
repair the serious lacunas of the Statute1
, or should we wait to analyze how the Tribunal
works in practice and then decide what to do?
I leave these comments for consideration when the theme of the International Criminal
Court is examined at the next dialogue with the Legal Advisors of the Member States of the
Organization of American States.
* * * * *
Resolution 1422 (2002)
(Adopted by the Security Council at its 4572nd meeting,
on 12 July 2002)
The Security Council,
Taking note of the entry into force on 1 July 2002, of the Statute of theInternational
Criminal Court (ICC), done at Rome 17 July 1998 (the Rome Statute);
Emphasizing the importance to international peace and security of United Nations
operations;
Noting that not all States are parties to the Rome Statute;
Noting that States Parties to the Rome Statute have chosen to accept its jurisdiction in
accordance with the Statute and in particular the principle of complementarity;
Noting that States not Party to the Rome Statute will continue to fulfil their
responsibilities in their national jurisdictions in relation to international crimes;
Determining that operations established or authorized by the United Nations Security
Council are deployed to maintain or restore international peace and security;
Determining further that it is in the interests of international peace and security to
facilitate Member States' ability to contribute to operations established or authorized by the
United Nations Security Council;
Acting under Chapter VII of the Charter of the United Nations,
1. Requests, consistent with the provisions of Article 16 of the Rome Statute, that
the ICC, if a case arises involving current or former officials or personnel from a contributing
State not a Party to the Rome Statute over acts or omissions relating to a United Nations
established or authorized operation, shall for a twelve-month period starting 1 July 2002 not
commence or proceed with investigation or prosecution of any such case, unless the Security
Council decides otherwise.
2. Expresses the intention to renew the request in paragraph 1 under the same
conditions each 1 July for further 12-month periods for as long as may be necessary.
3. Decides that Member States shall take no action inconsistent with paragraph 1
and with their international obligations.
4. Decides to remain seized of the matter.
1
Our objections include: the need to typify weapons of massive destruction as war crimes; the dangers raised by inadequate
definition of non-international armed conflicts; recognition of the General Assembly of the United Nations as the forum for
maintaining international peace and security; limiting the exercise of the powers of a country that ratifies in order not to observe
for 7 years the obligations set by the chapter on "war crimes" (art. 124); and provisions considered to be incompatible with
Mexican legislation and that should be analyzed and adjusted.
117
7. Possible further measures to the Inter-American Convention against
Corruption (Caracas)
Document
CJI/doc.81/02 Possible further measures to the Inter-American Convention against
Corruption (Caracas)
(presented by Dr. Sergio González Gálvez)
At the Inter-American Juridical Committee's LX regular session (Rio de Janeiro,
February-March, 2002), Dr. Sergio González Gálvez, rapporteur for the topic, presented
document CJI/doc.81/02, Possible further measures to the Inter-American Convention
against Corruption (Caracas). In this connection, he mentioned the Report of Buenos
Aires on the Mechanism for Follow-up of Implementation of the Inter-American
Convention against Corruption and noted that at its regular session in San José, Costa
Rica (June 2001), the General Assembly adopted the Declaration of the States Parties
of the Inter-American Convention against Corruption, which included that mechanism.
Dr. González Gálvez emphasized that corruption was one of the most serious
problems that democracy faced and stated that while the mechanism created a group of
experts similar to the OECĎs evaluation procedure, it did not cover all the problems that
corruption caused. His view was that the Inter-American Juridical Committee could
undertake that study, being careful to avoid any duplication. He recalled that there was
criticism of the inclusion of the notion of the responsibility of States in the fight against
corruption and that some had expressed doubts as to whether the issue of campaign
financing should be discussed. In conclusion, he noted that the document presented
was just a preliminary document.
Dr. Rattray stated that this topic was a question of the State's exercise of power
and the proper use of the resources available to it. He added, however, that he did not
expect this exercise to produce much in the way of positive results in the near term. Dr.
Rattray observed that the responsibility of the State could not be narrowed down to
purely State acts. Given the new wave of privatization, the presence of corruption could
not be established simply by investigating the conduct of civil servants. Many areas once
controlled by the State, and still just as essential, were now in private hands. Such
businesses could also fall prey to corruption. Finally, he noted that the issue of financing
was essential, since a democratic governmenťs heavy reliance on financial support
could lead to corruption. Dr. Rattray noted that no solution to this problem had been
found thus far.
Dr. Eduardo Vío Grossi was of the view that the Inter-American Juridical
Committee should approach the topic from the juridical standpoint, especially from the
perspective of the international responsibility of the States Party to the Convention,
determining whether the obligations undertaken had been honored. He observed that
the difference between behavioral obligations and performance-related obligations had
to be considered when examining the content of those obligations. He stated that like
any other juridical instrument, the Convention could lend itself to interpretations as to the
function of the follow-up mechanism. Dr. Vío Grossi also wondered whether the
multilateral mechanism precludes bilateral action in the event of noncompliance. He
118
believed it would be a good idea to examine how the anti-corruption laws have been
applied within the States, especially how the domestic courts have applied them.
Dr. Joo Grandino Rodas asked the rapporteur whether these additional
measures would necessitate an amendment to the Inter-American Convention or would
they simply be recommendations for the States. The rapporteur was of the view that
States party did not have to consider these measures. He suggested that the InterAmerican
Juridical Committee ought not to depend on the follow-up mechanism's group
of experts as the sole source of the information it needed to perform its work. Instead,
irrespective of the results of that group's work, the Committee should decide what
measures it would recommend.
This topic was not on the agenda of the Inter-American Juridical Committee's LXI
regular session. What follows is the text of the document presented by Dr. Sergio
González Gálvez:
CJI/doc.81/02
POSSIBLE FURTHER MEASURES TO THE
INTER-AMERICAN CONVENTION AGAINST CORRUPTION
(presented by Dr. Sergio González Gálvez)
As one of Mexico's specialists on anti-corruption, Roberto Casellas clearly points out in
one of his papers on the theme "Corruption is a pernicious form of simulation that erodes the
basic rules of co-existence, and incurs heavy costs for society". In a democracy ­ Casellas
proceeds ­ corruption distorts the relationship between the governing and the governed, causes
permanent annoyance and when it is associated with impunity, undermines the citizens'
confidence in the institutions, seriously affecting the social structure.
Hence the importance of this theme included in the Agenda of the Inter-American
Juridical Committee during its 57th
regular session, and which is certainly being considered
by other OAS bodies, including the Permanent Council.
During the 58th
regular session of the Juridical Committee, the author hereof, as joint
rapporteur of the theme, advanced as preliminary a list of possible subjects to be discussed,
as contribution to the task of achieving a fuller and more comprehensive application of the
Inter-American Convention on Corruption.
Consequently, I hereby submit for the appreciation of the Inter-American Juridical
Committee the following proposal:
MINDFUL that, the Inter-American Juridical Committee has had on its
agenda the topic of corruption since 1992 when the question entitled "First
approach to the legal focus on corruption in the Americas" was included, and in
1995, in response to a resolution of the OAS General Assembly (AG/doc.
3287/95), it commented on the Preliminary Draft Inter-American Convention on
Corruption, entrusting it to the Work Group appointed by the Permanent Council;
ALSO RECALLING the major contribution of the Inter-American Juridical
Committee in the presentation of a guide to "Model legislation on illicit
enrichment and transnational bribery";
TAKING INTO ACCOUNT the work performed by the Work Group on
Probity and Civil Ethics of the Permanent Council, as a mechanism following
upon the implementation of the Inter-American Convention on Corruption
(CP/RES.783 (1260/01) of 18 January 2001, which was submitted to the
appreciation of the member States as a recommendation,
119
THE INTER-AMERICAN JURIDICAL COMMITTEE:
1. Decides to begin examining possible further measures to the InterAmerican
Convention against Corruption, in the light of articles II, determining
the Proposals of this international instrument, and XXVII, which raises the
possibility of approving Additional Protocols of the Convention in order to
contribute to the provision in the aforementioned article II.
2. Among the points to be studied in a preliminary appreciation, I
hereby propose the following:
a) to develop the scope of the concept of responsibility of the States in
the fight against corruption, to which the second last paragraph of
the Convention's preamble refers;
b) to undertake comparative studies of the legal rules of the member
States in order to identify the similarities, differences and legal gaps
that might exist;
c) to identify other aspects that may lead to draft model laws which
include the most advanced techniques adopted against corruption;
d) To consider the problem of laundering of property or goods
resulting from corruption, considering activities that permit the
States to classify as a crime, if still to be classified, activities of
laundering gains from corruption in order to put in practice the
commitment assumed in article VI.1.d) of the Inter-American
Convention on Corruption;
e) to draft guidelines for organizing a Unit in the OAS to be a source of
legal information and, in general, a means of disseminating and
training on the subject of anti-corruption;
f) to approve the creation of a multilateral monitoring mechanism to
perform the convention based on the recommendation of the
General Assembly of OAS. The mechanism must be based on
similar schemes created elsewhere in the world, guaranteeing
equal participation of all States Parties to the Convention;The
mechanism must operate based on consensus and the assessment
must be fair and objective and preferably include a dispute
settlement mechanism, should disputes fail to be settled by
consultancy;
g) to analyze such topics as public procurement, including rules for
bids; incompatibility between a public function and private sector
and the technical autonomy that anti-corruption authorities must
have;
h) to study the link between the fight against corruption and the
international rules of human rights and financial and commercial
cooperation agreements (for example, eliminate the practice of
including bribery as tax deduction; rules for public procurement,
etc.);
i) guidelines to be adopted on the matter of election financing, which
could begin with a seminar attended by specialists from the OAS
member countries (possibly in Mexico).
Lastly, it is suggested that if the Inter-American Juridical Committee decides to begin
the study on this topic, a report is first requested from the OAS General Secretariat on the
status of discussion of this topic in other agencies of the inter-American system.
120
121
8. Traffick of firearms based on the decisions taken by the Inter-American
Juridical Committee on the matter
Document
CJI/doc.86/02 rev.1 Armamentism: based on the decisions taken by the Inter-American
Juridical Committee
(presented by Dr. Sergio González Gálvez)
At the Committee's LX regular session (Rio de Janeiro, February-March 2002), Dr.
Sergio González Gálvez, rapporteur for the topic, explained that at previous sessions,
he had asked the General Secretariat to obtain information on the fate of a draft interAmerican
convention for the prohibition of certain weapons and methods of combat,
prepared by the Inter-American Juridical Committee back in 1985. He told the
Committee that he did not know what had happened to the draft, but that the Permanent
Council may have suspended any further discussion because the topic was so complex.
At the time, the Committee had thought that with this draft it could make a significant
contribution to the development and codification of international law on this subject,
especially given the armed conflicts raging at the time. The rapporteur was of the view
that this topic was still very current, although he said that it perhaps should not be kept
on the Committee's agenda because there were other more pressing topics to consider.
The rapporteur for the topic also observed that the Inter-American Convention on
Transparency in Conventional Weapons Acquisitions had been approved within the
inter-American system. However, he did not believe this convention solved the problem
of the arms buildup.
The Director of the Department of International Law explained that the only
document containing information on that draft convention was CP/doc.1602/85 rev.1,
Report of the Committee on Juridical and Political Affairs on the examination of the
Annual report of the Inter-American Juridical Committee to the General Assembly, where
reference is made to that draft. However, he indicated that the General Assembly
resolution made no mention of the topic, which would suggested that its intention was
not to pursue the matter.
Dr. Sergio González Gálvez also introduced document CJI/doc.86/02 rev.1,
Armamentism: based on the decisions taken by the Inter-American Juridical Committee,
which summarizes the Inter-American Juridical Committee's discussions on the topic at
that regular session. The Committee approved the document and asked the General
Secretariat to forward it to the political bodies of the Organization. What follows is the
text of the report. This topic was not included on the agenda for the LXI regular session.
122
CJI/doc.86/02 rev.1
ARMAMENTISM:
BASED ON THE DECISIONS TAKEN BY THE
INTER-AMERICAN JURIDICAL COMMITTEE
(presented by Dr. Sergio González Gálvez)
The Inter-American Juridical Committee recalled the important work done by this body
regarding the Draft Inter-American Convention for the Prohibition of the Use of Certain
Weapons and Means of Warfare (CJI/RES.I-04/1985), which was submitted on 7 February,
1985 for consideration of the Permanent Council of the OAS.
The Juridical Committee has decided that the topic should be reconsidered when the
circumstances so recommend.
123
9. Juridical aspects of hemispheric security
The Inter-American Juridical Committee did not examine this topic at its LX and LXI
regular sessions (Rio de Janeiro, February-March and August 2002).
10. Right to information: access to and protection of information and personal
data
The Inter-American Juridical Committee did not take up this topic at its LX and LXI
regular sessions (Rio de Janeiro, February-March and August 2002).
124
125
11. Democracy in the Inter-American System
Resolution
CJI/RES.41 (LX-O/02) Democracy in the inter-American system
At the Inter-American Juridical Committee's LX regular session (Rio de Janeiro,
February-March 2002), Dr. Eduardo Vío Grossi made reference to the approval of the
Inter-American Democratic Charter, which had adopted many of the suggestions made
at the time by the Inter-American Juridical Committee. He recalled two of the most
important points contained in the Committee's report on the subject.
As to how the Juridical Committee should now pursue its discussion of the topic,
the rapporteur suggested that the Committee should perhaps wait for new guidelines
from the OAS General Assembly, whose regular session would be held in Barbados in
June 2002, and thereby await consolidation of the Inter-American Democratic Charter.
The Inter-American Juridical Committee also approved resolution CJI/RES.41 (LXO/02),
Democracy in the inter-American system, wherein it welcomed the adoption of
the Inter-American Democratic Charter; expressed its deep appreciation to the Secretary
General of the Organization and other dignitaries present on that occasion for their
public acknowledgement of the Inter-American Juridical Committee's role in the process
that culminated with adoption of the Inter-American Democratic Charter; suggested the
advisability of undertaking a campaign to publicize the Inter-American Democratic
Charter as a juridical instrument embodying the applicable principles on the subject; and
reiterated its readiness to continue to perform, on this and other subjects, its function
under the Charter, which is that of the OAS' advisory body on juridical matters. The
following is the text of that resolution:
CJI/RES.41 (LX-O/02)
DEMOCRACY IN THE INTER-AMERICAN SYSTEM
THE INTER-AMERICAN JURIDICAL COMMITTEE,
TAKING DUE NOTE of resolution AG/RES.1 (XXVIII-E/01), dated 11 September 2001,
approved by the Ministers of Foreign Affairs and Heads of Delegation gathered in Lima,
Republic of Peru, at the 28th
Special Session of the General Assembly of the Organization of
American States, and by means of which the Inter-American Democratic Charter was
adopted;
CONSIDERING that the preamble of the Inter-American Democratic Charter points out
that its approval "bore in mind the progressive development of International Law and the
convenience of identifying the provisions contained in the Charter of the Organization of
American States and basic instruments related to the preservation and defense of democratic
institutions in accordance with established practice";
BEARING IN MIND that during the development of the 28th
Special Session of the
General Assembly, the Secretary General and other distinguished dignitaries testified to the
contribution of the Inter-American Juridical Committee in the process of elaboration of the
Draft Inter-American Democratic Charter approved on that occasion;
MINDFUL that the Inter-American Juridical Committee has adopted several resolutions
concerning democracy in the Inter-American system, special mention being due to resolution
126
CJI/RES.I-3/95 of 23 March 1995, which affirms the principles and norms that the
Organization of American States and its member States observe in respect to the effective
exercise of representative democracy; resolution CJI/RES.17 (LVII-O/00) of 19 August 2000,
which refers to the need for an instrument, declaration or inter-American treaty on democracy
to be drawn up as a methodological approach; resolution CJI/RES.23 (LVIII-O/01) of 22
March 2001, deciding on elaborating a draft inter-American declaration on democracy; and
finally, resolution CJI/RES.32 (LIX-O/01) of 16 August 2001, which approves the report
Observations and Comments of the Inter-American Juridical Committee on the Draft InterAmerican
Democratic Charter (CJI/doc.76/01), prepared by the Working Group of the
Permanent Council of the Organization;
RECOGNIZING that the Draft Inter-American Democratic Charter presented by the
Permanent Council of the Organization to the 28th
Special Session of the General Assembly
of the Organization and approved by aforementioned resolution AG/RES.1 (XXVIII-E/01),
accepts in large measure the criteria and suggestions formulated by the Inter-American
Juridical Committee in the resolutions mentioned above,
RESOLVES:
1. To express its deep satisfaction for the adoption of resolution AG/RES.1
(XXVIII-E/01) of 11 September 2001, which approved the Inter-American Democratic
Charter, with the agreement of the Ministers of Foreign Affairs and Heads of Delegation
gathered in Lima, Republic of Peru, at the 28th
Special Session of the General Assembly of
the Organization of American States.
2. To express its heartfelt thanks to the Secretary General of the Organization and
other dignitaries present on this occasion, for the public recognition of the participation of the
Inter-American Juridical Committee in the process that culminated in the adoption of the InterAmerican
Democratic Charter.
3. To recommend that the Permanent Council of the Organization adopt a program of
wide diffusion of the Inter-American Democratic Charter as the juridical instrument that deals
with the norms that are applicable to the matter.
4. To reiterate its disposition to continue in this and other matters in which it is
summoned, in accordance with the provisions of the Charter of the Organization, to fulfil its
function as the consultative body of the OAS on legal affairs.
This resolution was unanimously adopted at the session held on 8 March 2002, in the
presence of the following members: Drs. Felipe Paolillo, Brynmor Thornton Pollard, Ana
Elizabeth Villalta Vizcarra, Carlos Manuel Vázquez, Kenneth O. Rattray, Joo Grandino Rodas
and Eduardo Vío Grossi.
127
12. Inter-American cooperation against terrorism
The Inter-American Juridical Committee did not take up this topic at its LX and LXI
regular sessions (Rio de Janeiro, February-March and August 2002).
13. Study of the system for the promotion and protection of human rights in the
inter-American sphere
The Inter-American Juridical Committee did not address this topic at its LX and LXI
regular sessions (Rio de Janeiro, February-March and August 2002).
14. Abduction of minors by one of their parents
The Inter-American Juridical Committee did not take up this topic at its LX and LXI
regular sessions (Rio de Janeiro, February-March and August 2002).
At its thirty-second regular session (Bridgetown, Barbados, June 2002), the
General Assembly adopted resolution AG/RES.1891 (XXXII-O/02) wherein it invited the
Inter-American Juridical Committee and the Inter-American Court and Commission of
Human Rights to lend their support and legal and technical assistance, within their
respective spheres of competence, for the organization and holding of the meeting of
government experts (Montevideo, August 12 and 13).
128
129
CHAPTER III
130
131
OTHER ACTIVITIES
Other activities carried out by the
Inter-American Juridical Committee in 2002
A. Presentation of the Annual report of the Inter-American Juridical
Committee
At the Inter-American Juridical Committee's LX regular session (Rio de Janeiro,
February-March 2002), Dr. Joo Grandino Rodas reported on the presentation of the
Committee's Annual report to the OAS Permanent Counciľs Committee on Juridical and
Political Affairs. That report was an account of the IAJC's activities in 2001. The
presentation was on February 7, 2002. He said that he was accompanied by Dr. Luis
Herrera Marcano and Dr. Carlos Manuel Vázquez, in response to the Committee's
request the previous year that as many members of the Inter-American Juridical
Committee as possible participate in the Annual reporťs presentation. The Chairman
noted that the presentation coincided with CIDIP-VI, being held at the Organization
headquarters. He noted that a number of delegations thanked the Inter-American
Juridical Committee for its role in helping to get the Inter-American Democratic Charter
adopted. They emphasized the need to support preparations for the Inter-American
Juridical Committee's centennial celebration.
At its LXI regular session (Rio de Janeiro, August 2002), the Vice Chairman of the
Inter-American Juridical Committee, Dr. Brynmor Pollard, reported on his participation in
the XXXII regular session of the OAS General Assembly (Barbados, June 2002)
In his remarks, Dr. Brynmor Pollard mentioned the topics of freedom of information,
democracy in the inter-American system, preparations for the centennial of the InterAmerican
Juridical Committee, inter-American cooperation against terrorism, the draft
convention to eliminate all forms of discrimination and intolerance, and the CIDIP. He
elaborated upon the points already included in the Annual report. He also noted that the
Declaration of Bridgetown adopted at that session of the General Assembly concerned
hemispheric security, the multidimensional facets jeopardizing security in the
hemisphere and requiring united cooperation on the part of the member States. He said
that a special conference on this subject would be held in Mexico in May 2003. Dr.
Brynmor Pollarďs remarks before the OAS General Assembly appear in document
CJI/doc.100/02 rev.1, Report by the Vice-Chairman of the Inter-American Juridical
Committee on the 32nd
session of the OAS General Assembly, transcribed below:
132
CJI/doc.100/02 rev.1
REPORT BY THE VICE-CHAIRMAN OF
THE INTER-American Juridical Committee ON THE
32ND
SESSION OF THE OAS General Assembly
(Bridgetown, Barbados, June 2-5, 2002)
(presented by Dr. Brynmor T. Pollard)
Mr. Chairman, Distinguished Delegates,
I take this opportunity, Mr. Chairman, to extend to you my congratulations on your
election to Chair the proceedings of this General Committee of the 32nd
regular session of the
OAS General Assembly. I bring you greetings from the Chairman of the Inter-American
Juridical Committee, Dr. Joo Grandino Rodas, for whom I am deputizing in his unavoidable
absence and for which he asked me to convey his regrets. On behalf of the Inter-American
Juridical Committee, I am pleased to present to the General Committee a summary of the
activities of the Juridical Committee for 2001 as reflected in the Committee's Annual Report.
The work of the Committee consists of responses to the priorities indicated by member
States of the Organization and also tasks undertaken by the Committee on its own initiative in
fulfillment of its mandate under the Charter of the Organization. In particular, the Juridical
Committee deliberated on the following topics during its two regular sessions in 2001 and its
regular session in February-March 2002, to complete consideration of some of them:
a) Improving the Administration of Justice in the Americas: Access to Justice;
b) The Right to Information: Access to and Protection of Information and Personal
Data;
c) Democracy in the inter-American System;
d) The Inter-American Democratic Charter;
e) Preparations for the Commemoration of the Centennial of the Inter-American
Juridical Committee;
f) The Juridical Aspects of Hemispheric Security;
g) The International abduction of minors by one of their parents;
h) Inter-American Cooperation Against Terrorism;
i) The Draft inter-American Convention against Racism and All Forms of
Discrimination and Intolerance;
j) The Specialized Inter-American Conference on Private International Law
(CIDIP);
k) Additional measures for implementation of the Inter-American Convention
against Corruption.
With regard to "a) Improving the Administration of Justice in the Americas", the General
Assembly, at its 31st
regular session at San José, Costa Rica, in June 2001, requested the
Inter-American Juridical Committee to continue its study of the different aspects of the
administration of justice in the Americas focusing its efforts on access of individuals to justice,
at the same time, maintaining the necessary coordination and the highest possible degree of
cooperation with other organs, agencies and entities of the Organization involved in this area
of activity, especially with the Justice Studies Center of the Americas in Santiago, Chile.
At the 59th
regular session of the Inter-American Juridical Committee, it received a visit
from Dr. Juan Enrique Vargas, Executive Director of the Justice Studies Center of the
133
Americas. The Chairman of the Inter-American Juridical Committee extended an invitation to
the Center to send a representative to participate as a professor in the Committee's Course
on International Law, in Rio de Janeiro, in August 2002, in implementation of a program of
cooperation between the Center and the Committee.
At its 60th
regular session held during 25 February to 8 March 2002, the Inter-American
Juridical Committee decided to retain the subject-matter on its agenda, particularly in the light
of the Fourth Meeting of Ministers of Justice or of Ministers or Attorneys-General of the
Americas Scheduled to be held in Port-of-Spain, Trinidad, in order to take account of
decisions of the Meeting and in consultation with the Executive Director of the Justice Studies
Center, the rapporteurs for the subject were requested to prepare for the consideration of this
61st
regular session of the Committee proposals for further work by the Committee on this
subject-matter.
At the Fourth Meeting of Ministers of Justice or of Ministers or Attorneys-General of the
Americas (REMJA-IV), held in Trinidad during 10-13 March 2002 the Meeting resolved that
the topic be renamed "Improving the systems for the administration of justice".
With regard to "b) The right to information: access to and protection of information and
personal data", at the 57th
regular session of the Inter-American Juridical Committee, the
rapporteur of the topic presented a document (CJI/doc.25/00 rev.1) entitled Right to
information: access to and protection of information and personal data in electronic form.
After in-depth consideration of the document, the Inter-American Juridical Committee
approved resolution CIJ/RES.13 (LVII-O/00), Right to information: access to and protection of
information and personal data. In that resolution, the Committee requested the General
Secretariat, through the Secretariat for Legal Affairs, to send the two reports prepared by the
rapporteur on the topic to member States and, at the same time, requesting them to provide
information on existing or proposed national legislation and also rules and policies governing
access to personal information and its protection. The resolution also requested the
rapporteur, with the assistance of the General Secretariat, through the Secretariat for Legal
Affairs, to prepare a summary of applicable principles and the most important considerations
relating to national laws in this area. The Inter-American Juridical Committee also decided
that at its next regular session (58th
), it would consider any additional information received
from member States and would also examine options for further work on the topic, including
the possibility of developing basic principles and guidelines or recommendations for the
possible creation of international instruments in this area. No responses were received from
member States to the dispatch of the reports that were circulated to them through the
Permanent Missions to the OAS. During its 58th
regular session in Ottawa, Canada, in March
2001, the Inter-American Juridical Committee decided to conclude its consideration of the
topic at its next regular session in August 2001 on the basis of responses received from
member States by that time.
At its 59th
regular session, in August 2001, the Inter-American Juridical Committee, by
majority decision adopted a resolution confirming its agreement with the general principles
set out in the provisional reports drafted by the rapporteur, Dr. Jonathan T. Fried, and
decided to consider the possibility of undertaking additional work on the subject during the
60th
regular session. The Committee also resolved to recommend to the Permanent Council
that it urge member States to adopt national legislation reflecting the principles presented in
the relevant reports which were dispatched previously to the Permanent Missions to the OAS
by the Department of International Law.
With regard to c) and d), "Democracy in the inter-American System" and "The InterAmerican
Democratic Charter", at its 55th
regular session in August 1999, the Inter-American
Juridical Committee decided to include in its agenda the item "Democracy in the interAmerican
System" with its rapporteur, Dr. Eduardo Vío Grossi. A preliminary report was
presented by the rapporteur discussing the possibility of arriving at a consensus on a draft
instrument, whether as a Declaration or Treaty on Democracy in the Inter-American System,
with the expectation that there might evolve a juridical obligation on the part of States in the
inter-American System to ensure the effective exercise of representative democracy. The
investigation would involve an analysis of the characteristics required of a State in order to be
134
considered a democratic State. The study was also expected to reveal whether or not there
are applicable laws declaring that democracy is a right and an obligation.
Members of the Inter-American Juridical Committee were later pleased that the
Chairman of the Permanent Counciľs Working Group on the Democratic Charter invited the
Committee to support the work of the Working Group in whatever way the Committee
considered appropriate. The Inter-American Juridical Committee was honoured to be
associated with the process of developing the Charter and responded by adopting a
resolution entitled Observations and comments of the Inter-American Juridical Committee on
the Draft Inter-American Democratic Charter, which was transmitted to the Chairman of the
Permanent Council by letter of August 16, 2001.
From all indications, it appears that the contributions of he Inter-American Juridical
Committee were well received and the Committee was privileged to be represented by Dr.
Eduardo Vío Grossi at the 28th
special Session of the OAS General Assembly, in Lima, Peru,
on 10 and 11 September, 2001, when the Inter-American Democratic Charter was adopted.
At its 60th
regular session held during 25 February to 8 March 2002, the Inter-American
Juridical Committee adopted a resolution expressing its recognition of the fact that the InterAmerican
Democratic Charter constitutes "an updated expression of the sources of
international law with regard to democracy and the exercise of it within the system of the
Inter-American System". With regard to democracy, it must be mentioned that the 37th
session of the General Assembly adopted a resolution on the promotion of democracy
generally within the OAS and also a declaration on democracy in Venezuela. A resolution on
the situation of Haiti was also adopted by the General Assembly.
With respect to "e) Preparations for the commemoration of the Centenary of the InterAmerican
Juridical Committee", the Committee wishes to draw attention to the resolution of
the 31st
regular session of the General Assembly (AG/RES.1773 (XXXI-O/01), by which the
General Assembly requested the Inter-American Juridical Committee to proceed with
preparations for the programme of activities for the occasion as contained in that resolution,
but adopting some additional matters, in particular, stipulating that the Book to be published
for the Centennial should contain articles by all members of he Committee, former members
and members of the staff of the General Secretariat desirous of submitting articles on the
work of the Committee. The resolution also mandated the submission of a proposal for the
design and printing of a poster for the occasion.
With respect to "f) The Juridical Aspects of Hemispheric Security", this subject was
under investigation by the Inter-American Juridical Committee in the context of the regional
and global situations since the entry into force of the of the relevant instruments at the
regional and international levels. The Committee in the light of the mandate undertaken by
the Permanent Council in this regard did not pursue the investigation of this subject.
With respect to "g) The International Abduction of Minors by one of their Parents", the
Inter-American Juridical Committee, at its 58th
regular session, expressed its deepest
concern about the international abduction of children by one of their parents and, after
acknowledging with gratitude documentation received from the Inter-American Children's
Institute, resolved to suspend further consideration of the topic pending the receipt of more
specific instructions from, or the conduct of further consultations with the political organs of
the Organization or the Inter-American Children's Institute.
With respect to "h) Inter-American Cooperation against Terrorism", the 32nd
regular
session of the OAS General Assembly adopted the Inter-American Convention against
Terrorism, which was open for signature by member States.
With respect to "i) The Draft Inter-American Convention against Racism and all Forms
of Discrimination and Intolerance", requested by the General Assembly as "an analytical
document for the purpose of contributing and furthering the work of the Permanent Council
on the need to draw up an Inter-American Convention to prevent, sanction and eradicate
racism and all forms of discrimination and intolerance". the Inter-American Juridical
Committee, at its 60th
regular session during 25 February-8 March 2002, concluded that there
was no need to develop such a convention but that the opportunity could be taken to produce
135
an instrument encompassing other forms of unacceptable and reprehensible conduct which
were manifest. Such an instrument will be supplementary to those in existence.
With respect to "j) The Specialized Inter-American Conference on Private International
Law", the CIDIP process, the Committee noted proposals for a restructured process and the
role to be assigned to the Inter-American Juridical Committee.
With respect to "k) Additional measures to supplement the Inter-American Convention
against Corruption", the Inter-American Juridical Committee STARTED A preliminary
discussion on the compilation of a list of topics which might engage the attention of the
Committee as follow-up work in order to implement the Convention. The topics include
matters that could lead to the preparation of appropriate model law, the problems of the
laundering and other means of distributing the proceeds of corruption, the participation of
corporate bodies in acts of corruption and the introduction of mechanisms for effective
monitoring to promote or assess the implementation of the Convention.
The 32nd
regular session of the General Assembly adopted the Declaration of
Bridgetown on the Multidimensional Approach to Hemispheric Security in pursuance of one of
the essential purposes of the Organization, namely, to strengthen the peace and security of
the continent. The Declaration affirmed that the Ministers of Foreign Affairs and Heads of
Delegations during their dialogue at the 32nd
regular session of the General Assembly
recognized that security threats, concerns and other challenges in the hemispheric context
are of a diverse nature and multidimensional in scope and that the traditional concept and
approach must be expanded to encompass new and non-traditional threats which include
political, economic, social, health and environmental aspects requiring appropriate
hemispheric cooperation and responses. The General Assembly called for the convening of
the special Conference on Security called for by the Third Summit of the Americas to
consider these issues. Indications are that the Conference is scheduled to be held in Mexico
in May 2003.
On the final day of the meeting, with the permission of the Chair, I made a brief
statement to the Assembly inter alia declaring the Inter-American Juridical Committee's
readiness to assist in whatever way may be deemed necessary and within its competence to
further the objectives of the Organization and, in particular, the implementation of the
mandates from the 32nd
regular session of the General Assembly. Brief presentations were
also made by the President of the Inter-American Court of Human Rights and the President
of the Inter-American Commission on Human Rights. The text of my statement is annexed.
* * * * *
ANNEX
REMARKS BY THE VICE-CHAIRMAN OF THE
INTER-AMERICAN JURIDICAL COMMITTEE TO THE
FOURTH PLENARY AT THE THIRTY-SECOND REGULAR SESSION
OF THE GENERAL ASSEMBLY
(presented by Dr. Brynmor T. Pollard)
Madam Chair,
I am deeply honoured to have been afforded the privilege of addressing this ThirtySecond
Regular Session of the General Assembly in my capacity as the Vice-Chairman of
the Inter-American Juridical Committee, in the unavoidable absence of the Chairman, Dr.
Joo Grandino Rodas, of Brazil, who, nevertheless, asked me to bring greetings and best
wishes for the successful deliberations of this session.
Madam Chair, as the distinguished representatives are no doubt aware, the InterAmerican
Juridical Committee is the oldest juridical body of our inter-American System. The
functions of the Committee include responding to mandates of the organs, agencies and
136
entities of the organization falling within its competence. The Inter-American Juridical
Committee was pleased and honoured to have been requested by the Chair of the
Permanent Council to contribute towards the development of the Inter-American Democratic
Charter which has now been approved by Member States and can be regarded as an
important instrument for this Organisation, for the maintenance of democracy and the good
governance of Member States.
The Members of the Juridical Committee cherish the hope that our involvement will be
sought in future situations of such importance. I can assure you, Madam Chair, that the InterAmerican
Juridical Committee stands ready to assist, in whatever way may be deemed
necessary, and within its competence, in collaboration with the organs, agencies and entities
of the Organisation to further its objectives and, in particular, the implementation of the
mandates from this Thirty-Second regular session of the General Assembly.
Thank you, Madam Chair.
B. Course on International Law
At its LIX regular session (Rio de Janeiro, August 2001), the Inter-American
Juridical Committee adopted resolution CJI/RES.34 (LIX-O/01), Course on International
Law. There it resolved that the central theme of the XXIX Course on International Law
would be "Natural resources, energy, environment and international law."
Working from that resolution, the Inter-American Juridical Committee and the
Department of International Law of the Secretariat for Legal Affairs organized the XXIX
Course on International Law, for August 5 through 30, 2002. It was attended by 21
professors from various countries of the Americas and Europe, 28 OAS fellowship
recipients selected from more than 50 candidates, and 7 students who paid their own
tuition expenses.
On August 5, 2002, during the LXI regular session of the Inter-American Juridical
Committee (Rio de Janeiro, August 2002), the opening ceremony for the XXIX Course
on International Law was held at the Centro Empresarial Rio, attended by members of
the Committee, guest officials, representatives of the General Secretariat and fellowship
recipients and participants in the Course. At the inaugural session, a special tribute was
paid to the memory of Dr. Francisco V. García Amador.
The program for the Course was as follows:
First Week
Monday, August 5
10:00 am Opening ceremony
Remarks by Dr. Sergio González Gálvez
Member of the Inter-American Juridical CommitteeTribute to Dr.
Francisco V. García Amador
Tuesday, August 6
9:00-11:00 am Carlos Delpiazzo
Director, Institute of Informatics Law, School of Law, Universidad
Mayor de la República, Uruguay
Information technology and telecommunications law I: the recent past:
the law vis--vis telecommuinications and information technology
137
11:00 am -1:00 pm Elizabeth Spehar,
Executive Coordinator, Unit for the Promotion of Democracy, OAS The
hemispheric agenda and role of the Inter-American Democratic
Charter I
Wednesday, August 7
9:00-11:00 am Carlos Delpiazzo
Information technology and telecommunications law, II: the turn-of-the
century challenge: technological convergence
11:00 am - 1:00 pm Orlando Rebagliati
Member of the Inter-American Juridical
CommitteeInformation technology and telecommunications law, II: the
turn-of-the century challenge: technological convergence
2:30-4:30 pm Elizabeth Spehar
The hemispheric agenda and the role of the Inter-American
Democratic Charter, II
Thursday, August 8
9:00-11:00 am Fabian Novak
Director, Institute of International Studies, Pontificia Universidad
Católica del Perú
The liability of States for ultradangerous or ultrahazardous activities
not prohibited under international law, I
11:00 am -1:00 pm Orlando R. Rebagliati
International legal regime of Antarctic natural resources, II
2:30-4:30 pm Carlos Delpiazzo
Information technology and telecommunications law, III: the present
electronic commerce
Friday, August 9
9:00-11:00 am Fabian Novak
The liability of States for ultradangerous or ultrahazardous activities
not prohibited under international law II
Second Week
Monday, August 12
9:00-11:00 am Nigel Bankes, Professor,
Faculty of Law, The University of Calgary
The Columbia River Treaty: from power and flood control to fish and
the Columbia ecosystem I
11:00 am -1:00 pm Julio Herrera
Executive Secretary,OLADE
Law and energy
Tuesday, August 13
9:00-11:00 am Nigel Bankes
The Columbia River Treaty from power and flood control to fish and
the Columbia ecosystem ll
11:00 am -1:00 pm Julio Herrera
Law and energy
138
2:30 - 4:30 pm Sergio González Gálvez
Member of the Inter-American Juridical Committee
The function of law in international relations, I
Wednesday, August 14
9:00-11:00 am Nigel Bankes
The Columbia River Treaty: from power and flood control to fish and
the Columbia ecosystem III
11:00 am -1:00 pm Daniel Vignes
Member of the Institut de Droit International
Ľamenuisement de la souveraineté des Etats membres au cours de
cinquante années de progrés de la construction de lÉurope I
2:30-4:30 pm Sergio González Gálvez
The function of law in international relations, II
Thursday, August, 15
9:00-11:00 am Daniel Vignes
The attenuation of the sovereignty of the member States over the fiftyyear
construction of Europe, II
11:00 am -1:00 pm Antônio Augusto Cançado Trindade
Chairman, Inter-American Court of Human Rights
The formation of contemporary international law: a reassessment of
the classic theory of its sources, I
Friday, August 16
9:00 am -11:00 pm Daniel VignesThe attenuation of the sovereignty of the member States
over the fifty-year construction of Europe, III
11:00 am -1:00 pm Antônio Augusto Cançado TrindadeThe formation of contemporary
international law: a reassessment of the classic theory of its sources, I
Third Week
Monday, August 19
9:00-11:00 am J. Roberto Nolasco
Deputy Legal Advisor, Inter-American Development Bank
Protection of the environment in IDB-financed projects, I
11:00 am - 1:00 pm Jean-Michel Arrighi
Director, Department of International Law of the OAS
The inter-American juridical system, I
Tuesday, August 20
9:00 -11:00 am Jaime Aparicio
Executive Secretary Summit Process Secretariat of the OAS
The agenda of sustainable development in the Summits of the
Americas process, I
11:00 am -1:00 pm Jaime Aparicio
The agenda of sustainable development in the Summits of the
Americas process, I
139
2:30-4:30 pm Ana Elizabeth Villalta Vizcarra
Member of the Inter-American Juridical Committee
The environment and sustainable development in the Central
American Integration System (SICA)
Wednesday, August 21
9:00-11:00 am José Félix Fernández Estigarribia
Former Minister of Foreign Affairs of Paraguay and Ambassador in
Mexico
The right of asylum in the Americas, I
11:00 am -1:00 pm Miguel Ruiz-Cabaas
Permanent Representative of Mexito to the OAS
The Inter-American Convention against Terrorism, I
Thursday, August 22
9:00 -11:00 am Geraldo Facó Vidigal
Professor at the Universidade de So Paulo (USP)
Amer-Iberia and its sociopolitical macro interests: a picture of
international economic law
11:00 am -1:00 pm José Félix Fernández Estigarribia
The right of asylum in the Americas, II
2:30-4:30 pm Miguel Ruiz Cabaas
The Inter-American Convention against Terrorism, II
Friday, August 23
9:00-11:00 am Geraldo Facó Vidigal
Amer-Iberia and its sociopolitical macro interests: a picture of
international economic law
Fourth Week
Monday, August 26
9:00-11:00 am Frida Armas Pfirter
Member of the Legal and Technical Commission of the International
Seabed Authority and Coordinator General of the Argentine
Commission of the Continental Shelf's Outer Edge
The exploitation of the natural resources of the continental shelf and
the seabed and protection of the environment, I
11:00 am -1:00 pm Jean-Michel ArrighiThe inter-American juridical system, II
Tuesday, August 27
9:00 - 11:00 am Frida Armas Pfirter
The exploitation of the natural resources of the continental shelf and
the seabed and protection of the environment, II
11:00 am -1:00 pm Luis Diaz Muller
Consultant, Instituto de Investigaciones Jurídicas, UNAM, México
Sovereignty and globalization
2:30-4:30 pm Embajador Joo Clemente Baena Soares
Former Secretary General of the OAS
Experiences in the OAS General Secretariat
140
Wednesday, August 28
9:00 -11:00 am Frida Armas Pfirter
The exploitation of natural resources from the continental shelf and the
seabed and environmental protecction, III
11:00 am -1:00 pm Diego Fernández Arroyo,
Professor of International Law, Universidad Complutense de Madrid
CIDIP-VI. A paradigm shift in the inter-American codification of private
international law?
2:30-4:30 am Luis Díaz Muller
Globalization and human rights
Thursday, August 29
9:00-11:00 am Diego Fernández Arroyo
The inter-American model law on secured transactions
11:00 am -1:00 pm Didier Opertti,
Minister of Foreign Affairs of Uruguay
MERCOSUR: current legal issues
Friday, August 30
10:00 am Closing and presentation of certificates
Brynmord Pollard, Chairman of the Inter-American Juridical Committee
During its LXI regular session (Rio de Janeiro, August 2002), the Inter-American
Juridical Committee adopted resolution CJI/RES.46 (LXI-O/02), XXX Course on
International Law, wherein it decided that the XXX Course would be from August 4 to 29
2003, and that the main theme would be "International law and the maintenance of
international peace and security." The Committee also decided that at the opening
ceremony, tribute would be paid to Dr. Jorge Casteeda. The following is the text of that
resolution:
CJI/RES.46 (LXI-O/02)
30th
COURSE ON INTERNATIONAL LAW
THE INTER-AMERICAN JURIDICAL COMMITTEE,
CONSIDERING that in 2003 the thirtieth Course on International Law, which it
organizes annually in conjunction with the General Secretariat of the Organization of the
American States, will be held in the city of Rio de Janeiro;
CONSIDERING the need for the Course on International Law to concentrate on a
central topic that focuses attention on a matter of current international importance and is also
flexible enough to attract teachers and students with different interests in public and private
international law,
RESOLVES that the 30th
Course on International Law shall be held from August 4 to
29, 2003, with the central topic International Law and the Maintenance of International Peace
and Security.
This resolution was unanimously adopted at the session held on August 16, 2002, in
the presence of the following members: Drs. Brynmor T. Pollard, Jonathan T. Fried, Orlando
R. Rebagliati, Joo Grandino Rodas, Felipe Paolillo, Ana Elizabeth Villalta Vizcarra, Carlos
Manuel Vázquez and Sergio González Gálvez.
141
Concerning the publications from the Course on International Law, the Director of
the Department of International Law announced that the volume for the 2001 course had
already been published. He also reported that it was his intention to continue to publish
the new International Law Course Series, which summarizes the classes by area. The
next will be the volume on the inter-American system; the volume after that will deal with
public international law in general. At the LX regular session, he presented the series
pertaining to private international law.
C. Relations and forms of cooperation with other inter-American organs and
entities and with like regional or world organizations
* The Inter-American Juridical Committee's participation as an observer to
various organizations and conferences
The following members of the Inter-American Juridical Committee were observers at
various meetings and international organizations in 2002:
- Dr. Joo Grandino, at the Sixth Inter-American Specialized Conference on
Private International Law (CIDIP-VI), held February 4 through 8, 2002.
- Dr. Orlando Rebagliati, at the 54th Session of the United Nations International
Law Commission (Geneva, June 5-6, 2002). Dr. Rebagliati presented the
document CJI/doc.96/02, titled Report by the observer of the Inter-American
Juridical Committee to the 54th session of the International Law Commission
(Geneva, June 5 and 6, 2002).
- Dr. Brynmor Pollard, at the IV Meeting of Ministers of Justice or of Ministers
or Attorneys General of the Americas (IV REMJA), held in Trinidad and
Tobago, March 11 through 13, 2002. Dr. Pollard presented document
CJI/doc.99/02, Report by the observer of the Inter-American Juridical
Committee on the Fourth Meeting of Ministers of Justice or of Ministers or
Attorneys-General of the Organization of Amrican States (IV REMJA) (Port of
Spain, Trinidad, March 10-13, 2002).
- Dr. Joo Grandino Rodas, at the XIX Seminar Rome-Brasília, which took
place in Brasília from August 21 to 24, 2002. He spoke on the subject of
justice, international courts and globalization.
The following are the texts of the reports written by Dr. Rebagliati and Dr. Pollard:
CJI/doc.96/02
REPORT BY THE OBSERVER OF THE
INTER-AMERICAN JURIDICAL COMMITTEE TO THE
54th
SESSION OF THE INTERNATIONAL LAW COMMISSION
(Geneva, June 5-6, 2002)
(presented by Dr. Orlando R. Rebagliati)
1. In compliance with the mandate received from the Juridical Committee, I participated
as an observer on its behalf during the 54th
session of the International Law Commission that
was first held throughout April 29 to June 7, 2002 at the United Nations head offices in
Geneva. The second part of this session will take place in the same headquarters from July
142
22 to August 16 of the current year. I was present during the plenary sessions held on June
5 and 6, when I was welcomed by President Robert Rosenstock (United States of America)
and Vice-President Enrique J.A.Candioti (Argentina). The prior coordination was efficiently
carried out by Messrs. Manoel Tolomei Moletta and Vaclav Mikulka, secretaries of the
respective organs, who also granted their specific cooperation to ensure the good
performance of this mission.
2. The following agenda was adopted by the Commission for this session:
a) Election to fill the vacancy (created by the decease of member Adegoke Ajibola
Ige ­ Nigeria);
b) Organization of the Work to the carried out by the Session;
c) Reservations to Treaties;
d) Diplomatic Protection;
e) Unilateral State Acts;
f) Program, working procedures and methods for the Commission and its
documentation;
g) Cooperation with other organs;
h) Date and venue of the 55th
session; and
i) Other issues.
3. The tasks undertaken may be summarized as follows:
a) Mr. Peter C.R. Kaatsi (Uganda) was elected to fill the above mentioned vacancy
b) The Commission took due note of the decision taken by the Planning Group to
re-establish the Long Term Work Program Working Group, which shall be
presided by Mr. Alain Pellet (France);
c) The Commission adopted the recommendation made by the Planning Group to
include the following topics in its working program:
* International Responsibility for Damages Caused by Acts Not Prohibited by
International Law. For this purpose, it established a Working Group that
shall be presided by Mr. P.S.Rao (India), stating that he could also be
chosen as the rapporteur of this special subject at a later date.
* International Responsibility of International Organizations. A Working
Group was also established to deal with this issue and will be presided by
Mr. Giorgio Gaja (Italy), who was also nominated as special rapporteur on
this topic.
* Shared Natural Resources. Mr. Chusei Yamada (Japan) was designated
as the special rapporteur on this subject.
d) Furthermore, the Commission also decided to establish a Study Group to cover
the topic Fragmentation of International Law, and commissioned Mr. Bruno
Simma (German Federal Republic ) to chair it.
e) The Commission discussed extensively the third report of the special rapporteur
on the topic of Diplomatic Protection, Mr. Christopher J.R. Dugard (South
Africa), related to the rule of depletion of internal resources, even the Calvo
Clause, and approved several draft articles referring to the norm of nationality.
f) The Commission also discussed the fifth report presented by the special
rapporteur on the subject of Unilateral Acts, Mr. Victor Rodriguez Cedeo
(Venezuela), and resolved to carry out a systematic study on the practice used
in the States.
143
4. During the second part of this session the Commission will continue discussing the
matters under reference, and shall also consider the seventh report issued by the special
rapporteur, Mr. Alain Pellet, on practical guidelines applicable to matters related to treaties'
reservations.
5. At the invitation of the President, during the 2730th meeting of the Commission held
on June 5, I expressed the declaration attached herewith. Its text recalls the relevant
background of the Juridical Committee since 1906, makes reference to the task carried out
throughout the last two periods of sessions, including those made in cooperation with other
organs trying to transmit its participation in said tasks, particularly regarding the main
decisions recently taken by the Permanent Council and its subsidiary organs, the General
Assembly and the Specialized Inter-American Conferences on Private International Law.
Furthermore, special mention is also made on other related and important activities, such as
the Course on International Law and the Joint Meeting with Legal Advisors of the Ministries
of Foreign Affairs of the OAS Member State. Finally, some remarks are also made regarding
the cooperation relationship the Juridical Committee has established with other organs and
organizations, particularly the International Law Commission. As mentioned in the
declaration, the relevant OAS documents were distributed prior to these tasks. At the end of
this intervention there was an interchange of ideas and information on some items that I will
proceed to summarize below: The President, the Vice-President and several members
expressed their sincere thanks for the participation of the Inter-American Juridical Committee
as an observer during a part of the Commission work pointing out that it would be convenient
to continue with such a good practice. They also recalled the regular cooperation relationship
maintained by the Commission with the Inter-American Juridical Committee, the Legal AsianAfrican
Consultation Committee, the European Committee on Legal Cooperation and the
Arab Commission on International Law. Notwithstanding the above, they further expressed
their thanks for the general overview given during the presentation as well as for all the
documents that had been distributed that clearly illustrated some important tasks carried out
by the Inter-American Juridical Committee and the Inter-American System in general.
Several members expressed their views on the discussions held by the Commission on the
topic covering the Fragmentation of International Law, and praised the approach maintained
in the hemisphere, especially as regard the Inter-American Convention on Terrorism and the
measures covering the Prevention of Racism and all other forms of Discrimination and
Intolerance and the possibility of preparing a Draft Inter-American Convention on the subject.
Additionally, several laudatory concepts were expressed on the Inter-American Democratic
Charter and the process that resulted in its adoption during the XXVIII Special Session of the
General Assembly held in Lima, Peru, in September 2001.The importance of the special
session of the International Law Course organized on an annual basis by the Juridical
Committee was also worthy of notice, and mention was made of its analogy to the
International Law Seminar held by the Commission every year.
6. During the following meeting I expressed my acknowledgement for the opportunity
granted to the Inter-American Juridical Committee to participate as observer in the
Commission, highlighting that although that participation was relatively brief it was still very
suitable for enhancing the knowledge on the tasks performed by both organs. Finally, I
renewed the interest of the Juridical Committee and it General Secretariat to maintain and
strengthen, if it were possible to do so, this cooperation between both organs.
* * * * *
144
ANNEX
DECLARATION MADE BY
THE INTER-AMERICAN JURIDICAL COMMITTEE OBSERVER TO THE
UNITED NATIONS INTERNATIONAL LAW COMMISSION
(Geneva, June 5 and 6, 2002)
(presented by doctor Orlando R. Rebagliati)
Mr. President:
First of all, allow me to express my appreciation for the opportunity the International
Law Commission has granted me to participate as observer on behalf of the Inter-American
Juridical Committee during your 54th
session. I feel pleased by the honor and consider it very
suitable to be able to participate, no matter how briefly, at a session held by this prestigious
United Nations organ and to renew a practice that has shown to be mutually fruitful in the
past. This is the ideal environment to interchange information and the best way to appreciate
the work being done in the core of the international legal plans upheld and performed by
both organs.
As you may recall, the Inter-American Juridical Committee acknowledges the
background of its foundation in the resolution adopted on August 23, 1906 in Rio de Janeiro,
Brazil, by the Third International American Conference that established the Permanent
Commission of Jurists. The Commission prepared several draft conventions on the issue of
international public and private law. The highly renowned "Codigo Bustamante" is included in
this latter field. A second milestone particularly relevant for the institution of which I am a
member, was the Inter-American Committee on Neutrality established during the First
Consultation Meeting of Ministers of Foreign Affairs of the American States, held between
September 26 and October 3, 1939. The evolution of international relationships as of that
date, resulted in the fact that the Third Consultation Meeting of Ministers of Foreign Affairs
held in Rio de Janeiro in 1942, transformed this Committee into the Inter-American Juridical
Committee. This was later included in the Organization of American States Charter adopted
in Bogota in 1948, that after undergoing several amendments continues to rule to date. It is
specifically mentioned in Article 53 of the Charter, jointly with other important institutions
belonging to the Organization, such as the General Assembly, the Consultation Meeting of
Ministers of Foreign Affairs, the Councils, the Inter-American Committee on Human Rights,
the General Secretariat, and the Specialized Conferences and Organisms. The purpose of
the Juridical Committee is to serve the consultative body of the Organization on legal
matters, promote the progressive development and codification of international law, study
the legal problems related to the integration of the developing countries in the Continent and
the possibility of achieving uniformity of their legislations, whenever it may seem convenient
to do so. In compliance thereof, the Inter-American Juridical Committee undertakes studies
and preparatory works commissioned by the General Assembly, The Consultation Meeting
of Ministers of Foreign Affairs and the Organization Councils. Additionally, it may also carry
out others it may deem necessary under its own initiative, and suggests the celebration of
specialized juridical conferences. The Juridical Committee, constituted by eleven nationals of
the member States of the Organization who must have the required qualifications and
perform their tasks on a personal basis, represents these States and has the most wideranging
technical autonomy. It is headquartered in Rio de Janeiro and is empowered to meet
in other cities in Brazil as well as any other member States. As a matter of fact, it has
practiced this prerogative quite often, holding meetings in Washington D.C as other cities of
the Continent. Three distinct issues may be pointed out that differentiate the Committee from
the International Law Commission, which could go a step further from the prevailing analogy
that exists between both organs, one at the regional and the other at the world level scope.
The Juridical Committee is duly established by the Charter and may, and de facto it does,
deal with subjects under its own initiative and its field of action covers public international law
and private international law. The distinguished members of the Commission have at their
disposal the publication Profile of the Inter-American Juridical Committee, prepared by its
Secretariat.
145
I will now try to give you a brief background of the works done by the Inter-American
Juridical Committee during its 59th
and 60th
sessions held in July/August 2001 and FebruaryMarch
2002. The respective agendas, documents CJI/RES.27 (LVIII-O/01) and CJI/RES.36
(LIX-O/01), are available to all members of the Commission.
Notwithstanding the wide-ranging agenda foreseen for the 59th
session, highly
important institutional reasons supported the Juridical Committee's decision to concentrate
almost exclusively on one issue: Democracy in the Inter-American System. This was the
result of the fact that the 28th
Special Session of the General Assembly had already been
summoned and was going to be held the following month of September in Lima, Peru, with
the objective of adopting the Inter-American Democratic Charter.
The Inter-American Juridical Committee has been working on the topic of Democracy
in the Inter-American System since 1995, and has made a large number of contributions that
have been adopted in a greater or lesser degree by other organs, especially the General
Assembly and the Permanent Council. At the beginning of the 59th
session to which I refer
to, the Chairman of the Juridical Committee received a letter from the Chairman of the
Permanent Council inviting the Juridical Committee to support the Counciľs Working Group
that had been entrusted with some tasks in order to complete the preparation of the InterAmerican
of American States. It was also understood that the aim of this resolution was to
strengthen the OAS instruments for the active defense of representative democracy, as had
been clearly expressed in the previously mentioned resolution 1838 of the General
Assembly.
In the light of this draft, the Inter-American Juridical Committee considered it timely to
point out that resolutions of this nature usually have the objective of interpreting conventional
provisions, proving the existence of customary law rules, taking due notice of the general
principles of law Democratic Charter, that had to be presented at the Special Session of the
General Assembly the following month.
The Inter-American Juridical Committee undertook full responsibility to prepare it,
bearing in mind the scarce time available, the contribution expected from it in view of the
importance assigned to this topic by the member States. The result of this decision was the
adoption of resolution CJI/RES.32 (LIX-O/01) that contains as Annexes the Observations
and Remarks made on the Draft Inter-American Democratic Charter that had been adopted
by the General Assembly during its 31st
regular session, held in March 2001 in San José,
Costa Rica [AG/RES.1838 (XXXI-O/01)]. It was this draft that had been used as basis by the
Permanent Council Working Group to which I referred to previously.
The observations and remarks made by the Juridical Committee were formulated
under the assumption that it did not seem timely to propose alternative texts in view of the
drafting stage of the Charter and the haste with which, they had consequently been
requested to remit them. Furthermore, they were formulated under the assumption that the
Inter-American Democratic Charter would be adopted as a resolution of the General
Assembly of the Organization, proclaiming common aspirations and contributing to the
progressive development of international law. Furthermore, it also recalled that some of the
resolutions issued by an organ of an international organization may have a binding nature
within the Organization when duly stipulated by its incorporation instrument. Lastly, it advised
that the context of this type of resolutions must also identify precepts of a programmatic
order.
Following these remarks of a general nature, the Juridical Committee focused its
analysis on the draft of the Charter adjusting its task to a technical juridical approach.
Observations tending to achieve an enhanced systematization of the text were drafted
together with the coherent grouping of the different topics covered, especially its
compatibility with previous resolutions adopted by the General Assembly, among which
AG/RES.1080 (XXI-O/91), on Representative Democracy and, obviously, the OAS Charter.
As it may be recalled, article 9 of this resolution foresees the possibility of a member State
whose democratically constituted government has been overthrown by force may be
suspended from exercising its right to participate in the sessions of the General Assembly,
146
the Consultation Meeting of Ministers of Foreign Affairs, the Organization Councils and the
Specialized Conferences as well as from the committees, working groups and any other
bodies that may have been constituted. The same provision stipulates other pertinent and
related mechanisms, including the lifting of this suspension. Resolution 1080 dated l991 is
compatible with this provision despite the fact that it covers a broader hypothesis. In addition
to the armed coup, it also covers the interruption of the institutional democratic process, the
illegitimate exercise of government by powers that have not been legitimally elected. This
resolution does not refer to the suspension of the member States but empowers the
Permanent Council and General Assembly to adopt certain measures on this regard. The
Third Summit of the Americas held in the city of Quebec, Canada, on April 20­22, 2001
established, among other things, the so called democratic clause that foresees that any
unconstitutional change or interruption of democratic order in a State in the Hemisphere
constitutes an insurmountable obstacle for the participation of its government at the General
Assembly sessions, the Consultation Meeting of Ministers of Foreign Affairs, the
Organization Councils and Specialized Conferences, as well as in committees, working
groups and remaining organs of the Organization. This provision, which was briefly included
in the Inter-American Democratic Charter, triggered a lengthy discussion at the Juridical
Committee that issued several recommendations regarding the need to make it compatible
with the OAS Charter, as well as other related texts. The result was politically acceptable, at
least for the time being, but perhaps when looking at it from a strictly legal viewpoint it may
be less acceptable. One provision remains which is quite probably necessary, but that may
legally cause some conflict with the Charter. All will depend on its interpretation and
application. This may perhaps entail a broader framework than the one desired by the
Juridical Committee. Be it as it may, it represents the collective wish to prevent and sanction
alterations made to the constitutional and democratic order by non-violent means that are,
nevertheless, just as illegal, and which have been occurring to a certain degree in the
American Continent.
The Democratic Inter-American Charter was adopted by consensus during the 37th
Special Meeting of the General Assembly on September 11, 2001. The date itself is a proof
of the wish to approve it, while it also explains the absence of a final round of negotiations of
its text. This Charter has been made available to the distinguished members of the
Commission.
During its 60th
regular session, the Inter-American Juridical Committee was advised
about the adoption of the Inter-American Democratic Charter and, as a result, adopted
resolution CJI/RES.41 (LX-O/02), which states that the former has included a large amount
of criteria and suggestions formulated by the Committee and among many other matters,
leaves on record the deep appreciation expressed by the Secretary General and other high
dignitaries present at the Assembly for the participation of the Inter-American Juridical
Committee in the process that culminated with the adoption of the Inter-American
Democratic Charter. Jointly with all the other resolutions of the 60th
session, this text is also
available to all members of the Commission.
Allow me to give you now a brief summary on the work carried out during this 60th
regular session, held in February-March, 2002. As previously mentioned, the agenda is
available to all the distinguished members of the Commission. In addition to the topic of the
Charter I shall highlight the treatment given to three main issues. One of them had not been
included in the formal agenda.
In its resolution AG/RES.1774 (XXXI-O/01) entitled the Preparation of an interAmerican
draft convention against racism and all forms of discrimination and intolerance, the
General Assembly requested the Inter-American Juridical Committee to prepare an
analytical document aiming to offer a contribution and advance the works carried out on the
same topic by the Permanent Council. As a result, the Committee dealt with this topic very
broadly and approved resolution CJI/RES.39 (LX-O/02) that expresses concern regarding
the growing acts of racism and intolerance perpetrated throughout the world and confirms
the need to joint forces in a common cause against these manifestations, by strengthening
the cooperation among the States to eradicate these practices. Furthermore, it adopted as
147
its own the conclusions given in document CJI/doc.80/02 rev. 2. Both texts were transmitted
to the Permanent Council and are available to the members of the Commission. On this
regard, it is worthy to mention that the Juridical Committee made an in-depth revision, duly
proceeded by the compilation of treaties and legislation as well as answers received from the
member States to the questionnaire, regarding the general legal framework that exists on
this subject. Going a step further from the considerations mentioned in the replies, quite a
large number indeed, the Committee was able to arrive to some conclusions which are
included in the document under reference. They mirror some caution in favoring the
negotiation of a new convention on the matter, while at the same time making it clear that,
should this become necessary, it must represent a supplementary instrument to the existing
universal and regional conventions, in other words, it should cover general aspects that have
not been covered in these conventions, or typify forms of racism, racial discrimination or
intolerance that have not been subject to a specific international regulation. The Juridical
Committee clearly advised against entering into a negotiation which would end up drafting a
convention to prevent, sanction and eradicate racism and all other types of discrimination
and intolerance, inasmuch as it could be redundant, produce overlapping and would
consequently raise serious problems regarding its interpretation and application. The
Juridical Committee nevertheless identified certain subjects that could be significant to work
with such a problematic issue that requires constant action from the Governments. These
topics are: strengthening the supervisory mechanisms and compliance with the obligations
arising from the conventions on human rights; taking into account specific groups such as
the indigenous populations, ethnic minorities, etc., and the contemporary forms of racism
and racial discrimination. Notwithstanding the above, the Committee deemed that if an InterAmerican
convention were concluded with a specific objective on this issue, it should be
elaborated within the framework of the International Convention on the Eradication of all
Forms of Racial Discrimination and other universal and regional conventions. The
Committee further agreed that there are other means available to regulate matters related to
racism and racial discrimination, particularly if they refer to the adoption of supplementary
provisions contained in other instruments in force, or regulate specific aspects of a restricted
scope. In this respect it mentioned, among others, the adoption of amendments, approval of
interpretation declarations and the conclusion of additional protocols. Additionally, it recalled
the possibility of using procedures of a political nature, such as those recommended by the
First and Second Summits of the Americas (Miami, 1994 and Santiago de Chile 1998,
respectively), and by the World Conference on Racism, Racial Discrimination and
Xenophobia and related forms of intolerance (Durban, 2001). Finally, the Juridical
Committee also indicated that the organs of the OAS could consider the possibility of urging
the members who had not yet done so to ratify or adhere to the existing conventions, and
could recommend to those States that are Parties to the conventions against racism and
racial discrimination to adopt the measures necessary to effectively comply with the
obligations arising thereof, including the adoption of laws and regulations in their domestic
legislation.
This topic was recently under consideration during the 32nd
regular period of session
of the General Assembly held in Bridgetown, Barbados, and will continue under
consideration in the future fora of the Organization. The Assembly adopted resolution
AG/RES.1905 (XXXII-O/02) on this topic that recalls the conclusions of the Inter-American
Juridical Committee and gives some guidelines for the future tasks to be performed by the
Permanent Council regarding issues that do not necessarily imply the preparation of a
Convention. As a matter of fact, I believe this is the right moment to mention that the agenda
of the Assembly (AG/CP/SUB.TP-42/02 rev.2) is available to the distinguished members of
this Commission. Furthermore, I also think it worthy to mention that the Assembly took under
consideration a Agenda of special current importance. I refer to the adoption of an InterAmerican
Convention against Terrorism. The Draft was prepared by the Working Group of
the Commission on Juridical and Political Affairs of the Permanent Council, and its text
(CP/CAJP-1891/02) is available to all members of the Commission. The Chairman of the
Group visited the Juridical Committee during the development of these tasks. Several
consultations were held on the topic, which greatly facilitated an enhanced, the
comprehension of the economy of the project and resulted in suggestions and remarks that
148
were taken into account before the Group finished its work. The Assembly that has just come
to its end, adopted the draft convention through resolution AG/RES.1840 (XXXII-O/02), and
even decided to open it for signature. Thirty Member States proceeded to subscribe it at that
session.
Another important aspect of the last session held by the Juridical Committee related to
the treatment given to the results of the Sixth Specialized Inter-American Conference on
Private International Law, held in Washington D.C. on February 4 ­ 8 of this year. The
Conference adopted two model laws: a Standard Bill of Lading for the Transportation of
Merchandise by Highways and a Non-Negotiable Standard Bill of Lading for the
Transportation of Merchandise by Highways. Furthermore, the Conference also adopted the
Inter-American Model Law on Transaction Guarantees, which is expected to "reduce the cost
of loans and facilitate international trade and investments throughout the region, as well as
support small and medium sized enterprises in the hemisphere". A third subject was also
discussed by the Conference, namely the one related to liability arising from transborder
pollution. No agreement could be reached on this matter. The Juridical Committee received
a very explicit commendation from the Conference for its contribution to their tasks done as
well as two commissions. One requested its cooperation to study the issue of "the law
applicable and international jurisdiction competent on matters related to civil extra
contractual responsibility", and the other aiming to assist in the preparation of an agenda for
the future Seventh Specialized Inter-American Conference on Private International Law. The
Committee welcomed the commendation and assignments received. The Agenda for the
next Juridical Committee session [CJI/RES.42 (LX-O/02)], is available to the members and
shows the inclusion of the topic referred to above.
There is a last item that may result of interest to the Commission and it refers to the
Preparations for the Commemoration of the Inter-American Juridical Committee Centennial.
As recalled previously, its background goes back to 1906. This is the reason why the
Committee has started working with some anticipation last year, and shall continue
discussing the topic during each session. This is the sort of event that tends to attract a
broad participation from Inter-American organs and organizations as well as from other
regions, and certainly hopes to include the International Law Commission and other United
National organs and specialized organisms. It undoubtedly also aspires to obtain the
participation of academic and professional institutions with a high level of competence in the
sphere of international public and private law. Among other models, special attention has
been given to the preparatory works for the commemoration of the Centennial of The Hague
Conference that took place in 1999. The program will also include meetings and specific
events, publications and other academic activities, generally oriented towards current quick
retrospective visions of the hemisphere, in the international-juridical framework.
The Juridical Committee is carrying forward two related activities as part of its task.
One on a yearly schedule ­ the Course on International Law - and the other every two or
three years - the Joint Meeting with Legal Advisors of the Ministries of Foreign Affairs of the
OAS Member States. It goes without saying that for both endeavors as well as for all the
works it carries out, it has always counted with the valuable support of the General
Secretariat.
The International Law Course has been lectured since 1974. It has a four-week
duration that usually coincides with the meeting the Juridical Committee holds in Rio de
Janeiro in August. Approximately thirty scholarship students from all members States
participate in this Course, and seven additional participants, also from the members States,
who receive no scholarship. The participants are young graduates, some work in the
universities other in the public sector, and other even in the foreign services of their
countries. They are carefully chosen using a pre-established procedure and devote
themselves full time to the activities of the Course during the four weeks, and are subject to
evaluation. The lectures are given by Committee members, international officers, or
members of international organs and, obviously, professors from American universities as
well as from other regions, particularly Europe, whose main activities are academic. The staff
of professors usually reaches some thirty participants each year. Several member of the
149
International Law Commission both from their present roster as previous ones had dictated
lectures to the Course and greatly contributed to its prestige. The Course is developed
around a main topic. The Professors choose a specific topic or topics they will lecture on
during their classes with broad discretion, and in coordination with the General Secretariat.
The core topic during 2001 was "The Human Person in Contemporary International Law".
This year's topic will deal on "Natural Resources, Energy, the Environment and International
Law".
The last Joint Meeting with Legal Advisors of the Ministries of Foreign Affairs of the
OAS Member States were held during the Juridical Committee's 56th
session, held in
Washington D.C., in March 2000. The next one will take place in 2002 and the topic, handed
down as a mandate from the General Assembly will include "International Criminal Court"
that stopped being part of the Juridical Committee agenda. Notwithstanding the above, the
remainder of the agenda is under preparation and demands consultations with the future
participants. In general, it is a matter of exchanging information and agreeing on criteria
applicable to some juridical issues that are current in the member States, especially in the
Inter-American sphere. It is unnecessary to explain that it is extremely important for the
Juridical Committee to know the viewpoints Legal Advisors have on some issues included in
the Committee's Agenda, the importance assigned to it, and to receive suggestions on
issues that could be included in its agenda.
Article 103 of the Organization of American States Charter expresses that: "The InterAmerican
Committee shall establish cooperation relations with universities, institutes and
other teaching centers, as well as with national and international committees and entities
devoted to study, research, teaching, or dissemination of information on juridical matters of
international interest". I hope I have been able to make some contribution to fulfill this
mandate.
Thank you very much.
CJI/doc.99/02
REPORT BY THE OBSERVER OF
THE INTER-AMERICAN JURIDICAL COMMITTEE
ON THE FOURTH MEETING OF MINISTERS OF JUSTICE
OR OF MINISTERS OR ATTORNEYS-GENERAL OF
THE ORGANIZATION OF AMERICAN STATES (IV REMJA)
(Port-of-Spain, Trinidad, March 10-13, 2002)
(presented by Dr. Brynmor T. Pollard)
I attended the Fourth Meeting of Ministers of Justice or of Ministers or AttorneysGeneral
of the OAS (IV REMJA), held in Port-of-Spain, Trinidad, March 10-13, 2002, on
behalf of the Inter-American Juridical Committee with observer status. The main themes of
the Meeting were legal and judicial cooperation in the Americas in fighting transnational
organized crime and terrorism, particularly in the light of the tragic events which occurred in
the USA in September 11, 2001 and also improving the administration of justice in member
States of the OAS, with particular emphasis on access to justice and prison policy. A number
of delegations informed the Meeting of the introduction of Alternative Dispute Resolution
procedures in their respective jurisdictions intended to reduce delays being experienced in
the traditional justice systems. The meeting resolved that the topic would be restyled
Improvement in Systems of the Administration of Justice.
I was afforded the privilege of addressing the Meeting on behalf of the Inter-American
Juridical Committee and took the opportunity to convey to the meeting greetings from the
Chairman and members of the Committee and best wishes for fruitful deliberations at the
Meeting, leading to conclusions of vital importance to the Organization in the pursuit of its
150
objectives and to member States, particularly in their implementation. I also referred to the
fact that the topic ­ Improvement in the Administration of Justice (now restyled) ­ had, for
sometime, been under examination by the IAJC, culminating in the preparation of a
comprehensive report in the late 1990's, which was submitted to the political organs of the
Organization.
The meeting was also informed that the IAJC noted with satisfaction that REMJA
considered access to justice, especially by disadvantaged groups in our societies, to be an
important item on its agenda. The meeting was informed that the 31st
regular session of the
General Assembly in Costa Rica, in June, 2001, had requested the Inter-American Juridical
Committee to continue its research into matters relating to the administration of justice in
member States and the Committee had resolved to keep the topic on its agenda, particularly
to take account of decisions which might be taken at REMJA-IV and to benefit also from any
consultations with the Executive Director of the Justice Studies Center of the Americas.
On behalf of the IAJC, I cautioned that in implementing alternative dispute resolution
mechanisms in their justice systems, member States must ensure that the quality of justice is
not prejudiced. Finally, pledges of cooperation were given on behalf of the IAJC in assisting
in implementing the decisions of REMJA.
The Vice-President of the Board of Directors of the Justice Studies Center of the
Americas, Dr. Federico Callizo, Dr. Karl Hudson-Phillips of Trinidad and Tobago, a member
of the Board, Director Juan Enrique Vargas and Staff Attorney Luciana Sánchez hosted a
meeting with representatives of the CARICOM delegations with a view to exploring ways in
which the Center could effectively carry out its mission in the Caribbean Region. There was
a fruitful exchange of views and many helpful suggestions were made which were
appreciated by the representatives of the Center.
Copies of the text of my intervention at REMJA-IV and the letter from the President,
Board of Directors of the Justice Studies Center of the Americas are attached.
ANNEX I
PRESENTATION OF THE VICE CHAIRMAN OF THE
INTER-AMERICAN JURIDICAL COMMITTEE AT
THE FOURTH MEETING OF MINISTERS OF JUSTICE OR
OF MINISTERS OR ATTORNEYS GENERAL OF THE AMERICAS
(REMJA-IV)
(presented by Dr. Brynmor T. Pollard)
Madam Chair,
I wish to associate myself with the congratulations extended to you by the
representatives of delegations on your election to chair this important Fourth Meeting of
Ministers of Justice or of Ministers or Attorneys General of the Americas (REMJA) and to the
Vice-Presidents.
I wish also to express appreciation for the hosting of this Meeting by the Government
of the Republic of Trinidad and Tobago and for the invitation extended to the Inter-American
Juridical Committee. It is always a pleasure to be here in Trinidad and Tobago.
Madam Chair, I bring to this meeting of Ministers and Attorneys-General greetings
from the Chairman and other members of the Inter-American Juridical Committee of the
Organisation with expressions of their wish that the deliberations at this Meeting will lead to
conclusions of vital importance to the Organisation in the pursuit of its objectives and to the
Member States particularly in their implementation.
Madam Chair, the Inter-American Juridical Committee is particularly pleased that the
topic ­ "Improvement In the Administration of Justice (restyled at this meeting "Improvement
in Systems of Administration of Justice") continues to be an important item on the agenda of
REMJA. Members of delegations will recall that the Inter-American Juridical Committee had
in the late 1990's prepared a comprehensive report on improvements in the administration of
151
justice in member States which was submitted to the political organs of the Organisation with
the recommendation that particular issues be drawn to the attention of member States, for
example, recommendations of measures for implementation intended to assist in
safeguarding the independence of the judiciary.
The Inter-American Juridical Committee notes with satisfaction that, in particular,
access to justice especially by disadvantaged groups in our societies is considered by
REMJA to be an important item on its agenda. At the 31st
Regular Session of the General
Assembly in Costa Rica, in June 2001, the Assembly requested the Inter-American Juridical
Committee to continue its research into matters relating to the administration of justice. At its
60th
Regular Session in Rio de Janeiro which ended on March 8th
, the Inter-American
Juridical Committee resolved to retain the topic "access to justice" on its agenda in keeping
with the General Assembly's mandate and particularly to take account of decisions which
may be taken at this meeting of REMJA and also to benefit from any consultations to be
engaged in with the Executive Director of the Justice Studies Centre of the Americas with the
expectation that proposals for further work on the topic could be submitted for the
consideration of the Juridical Committee at its next regular session in August 2002.
Madam Chair, I was pleased to hear the reports of the representatives of member
States at this meeting providing information on measures which have been taken to
implement alternative dispute resolution mechanisms in their justice systems in order to
facilitate access to justice. The Inter-American Juridical Committee wishes to caution that in
introducing those mechanisms into their justice systems, Member States must ensure that
the quality of justice is not prejudiced.
Madam Chair, the Inter-American Juridical Committee, within its competence, pledges
its co-operation in assisting in implementing decisions of REMJA and in the furtherance of its
work if it is considered that the Committee can make a contribution.
Thank you Madam Chair.
* * * *
ANNEX II
March 2002
Mr. Brynmor Thornton Pollard
Vice President
Inter-American Juridical Committee
P.O. Box 10290
18 Brick Dam, Stabrock
George Town, Guyana
Oasgy@guyana.net.gy
Honorable Mr. Thornton Pollard,
Thank you very much for participating in the informal dialogue with representatives of
the Justice Studies Center of the Americas, at the recent meeting of the Attorneys General
and Ministers of Justice of the Americas in Trinidad. Together with our Vice President Dr.
Federico Callizo of Paraguay, our Board member Dr. Karl Hudson-Phillips of Trinidad and
Tobago, our Director Juan Enrique Vargas and Staff Attorney Luciana Sanchez, I found your
remarks most helpful as the Center begins to explore ways in which we can carry out our
mission in the Caribbean region.
Based on the many helpful suggestions received, we shall now begin to evaluate the
next steps in this fruitful dialogue, and will be in further touch with you in the coming weeks.
In the meantime, we welcome any further suggestions you might have and, in particular, the
names and contact information of any jurists from your country or the region whom you
would recommend be included in our ongoing communications.
152
On behalf of myself and our team, please accept my very best wishes for success in
your work to improve the administration of justice. It was a pleasure to meet you, and I look
forward to seeing you again.
Sincerely,
Douglass Cassel
President, Board of Directors
Justice Studies Center of the Americas
* * *
153
ANNEX III
REPORT ON THE MEETING OF THE JSCA WITH
CARIBBEAN JURISTS AND REPRESENTATIVES OF
MISSIONS FROM CARIBBEAN COUNTRIES AT REMJA IV
This is a summary of the informal meeting at REMJA IV between members of the
Board and Staff of the justice Studies Center of the Americas (JSCA) and Caribbean Jurists
and representatives of Missions from Caribbean countries. A wealth of opinions was
exchanged on matters relating to the functioning of justice systems in the Caribbean. This
Report mentions only those topics discussed which have some link to the JSCA, or to which
the activities of the JSCA can usefully contribute.
For convenience in this report, the comments of participants are grouped informally by
topic.
ATTENDEES:
Without exception and to our great satisfaction, those who attended the Meeting
expressed a great interest in collaborating with the Center and its regional activities.
Attendees on behalf of the JSCA:
Douglass Cassel, President.
Federico Callizo, Vice President.
Karl Hudson-Philips, Director.
Juan Enrique Vargas, Executive Director.
Luciana Sánchez, Programs Director.
Francisco Cruz, Secretary of the Board of Directors.
Silvina Ramírez, Associate Member.
Representing delegations from Caribbean Countries:
Bahamas:
- Mr. Bernard S.A. Turner, Director of Public Prosecutions, Office of the Attorney
General
Barbados:
- Mr. Charles Leacock, Director of Public Prosecutions
Haiti:
- Mr. Salim Succar, Ministry of Justice and Public Security.
Jamaica:
- Ms. Gladys Young, Attorney-at-Law, Attorney Generaľs DepartmentSuriname:
- Acting Attorney General Soebhaschandre Punwasi
Trinidad and Tobago:
- Ms. Harriet (Lindi) Seenath, Legal Affairs Officer, Ministry of Foreign Affairs
- The Honourable Mr. Justice R. Nelson, Supreme Court of Judicature, Court of
Appeal, Hall of Justice
- Mr. Samraj Harripaul, Attorney at Law/Senior Parliamentary Counsel, Law Reform
Comission, Ministry of the Attorney General and Legal Affairs
Inter-American Juridical Committee:
- Vice President Brynmor Thornton Pollard
154
CARICOM:
- Ms. Gloria Richards-Johnson, Assistant General Counsel, CARICOM Secretariat.
Additionally, Mr. Douglass Cassel, President of the JSCA, Board Member Mr. Karl
Hudson-Phillips and the Executive Director met with Attorneys General Gertel Thom of
Anti2ua and Barbuda and Raymond Anthony of Grenada.
TOPICS DISCUSSED.
The following topics and proposals were among those discussed:
a) Bar Associations:
- It was proposed that measures be taken to upgrade the quality of the Caribbean
bar to prepare lawyers to serve as judges.
- OCBA - the Organization of Caribbean Bar Associations - has recently proposed to
levy a membership fee on attorneys.
b) Judicial Training
- Training of judges in the region was unanimously pointed out as among the most
significant needs in which the JSCA may collaborate. Ongoing initiatives in this
sense were mentioned, but their potential could be increased. Integral training was
emphasized, taking into account the differences among the diverse legal systems
in the region.
- Cybercrime and e-commerce matters were proposed as subjects for which judicial
training is specifically required, because these topics are new to judges in the
Caribbean countries.
- There is a need for training in order to enhance cooperation, not only for judges but
for all the players in the justice sector.
- Conducting Seminars for training and exchange of information on the different
national and regional legal systems in the Americas was proposed, so as to
encourage cooperation among judges prosecutors, and other "operators" of judicial
systems.
- It was also recommended to open communication channels with the Regional
Judicial training Institute, headquartered are in Jamaica, so as to coordinate action.
- Court administration and court reporting pose problems for Caribbean Countries,
because they do not have enough properly trained personnel. The paramount need
was stressed for training to bring employees and judicial administrators up to date.
- A database was proposed of resource persons in Latin America, organized
according to expertise, so that Caribbean institutions can thus have access to
technical assistance and useful exchanges of high quality.
c) Regional Issues:
- The inclusion of Suriname, Haiti and Saint Lucia was discussed. These countries
have a continental legal system (civil law), and for that reason assistance was
requested from the JSCA to integrate them and their legal systems into the
regional system in the Caribbean. This is especially important for regional
economic integration treaties.
- Mechanisms should be organized to promote fluid information exchange between
Caribbean Countries and Latin America on topics or common concern.
- There is a need for close relations with the Inter-American Juridical Committee.
- The possibility of a JSCA representative visiting the Office of Legal Affairs of
CARICOM in Suriname was discussed.
155
- Topics concerning corruption and money laundering, as well as the drug-trade, are
of concern in the Caribbean. It would be interesting to have information on how
these topics are dealt with in the rest of the Americas, with a view toward possible
joint action.
- Research might be conducted in regard to the historical relationships between
Spanish Law and Common Law in Trinidad and Tobago.
d) Alternative Dispute Resolution:
- The importance of this issue was highlighted, especially in relation to the processes
of economic integration in the region.
- It was noted a recent workshop in Grenada on alternative dispute resolution
focused on reforming the judiciary.
e) Prison and Imprisonment:
- The need for alternatives to prison sentences, in order to reduce prison
populations, was stressed.
- There is also a need to train people to run administrative institutions for community
service and for rehabilitation and reintegration of offenders. There is a lack of
prison rehabilitation programs and aftercare, as well as a serious lack of trained
counselors.
- A study by Trinidad three years ago found that the cost of keeping a prisoner
incarcerated is much higher than a judicial salary.
f) Judicial Reform:
- Grenada is involved in judicial reform projects with CEDA (Canadians) and OECS
(Organization of Eastern Caribbean States). Any new initiative should be
complementary to efforts already being implemented such as those of CEDA,
USAID, IADB and CARICOM.
- An important topic for judicial reform is citizen participation in the administration of
Justice.
g) Legislative Reform
- Many countries are planning or already carrying out constitutional reforms; there is
a need for training and technical assistance on how to draft these constitutional
reforms.
- The Jamaican representative proposed sending the JSCA legislation that might
serve as models, such as the Public Defender Act and the ADR act.
h) Juveniles.
- An important problem is that juveniles enter prison and then mix with seasoned
criminals. At present there is often no alternative. This is directly related to the
concern for juvenile penal law that meets international standards. An exchange of
experiences is needed with other countries in the Americas.
i) New technologies:
- Data about information technology and computerizing the courts is required.
j) Judiciary:
- The topic of judicial independence as suggested by several delegations as a
burning issue in the Caribbean. They propose conducting an advance course on
judicial independence.
156
The meeting closed with acknowledgment of the need to consider these many
suggestions and to conduct analyses and to make additional contacts to identify those topics
on which the JSCA may most effectively be of assistance to the needs of the Caribbean.
* Visits made to the Inter-American Juridical Committee
The Inter-American Juridical Committee was pleased to receive visits from the
dignitaries in 2002:
* Ambassador Didier Opertti, Foreign Minister of Uruguay.
* Ambassador Joo Clemente Baena Soares, former Secretary
General of the OAS.
* Dr. Antônio Augusto Cançado Trindade, Chairman of the InterAmerican
Court of Human Rights.
* Ambassador Miguel Ruiz-Cabaas, Permanent Representative of
Mexico to the OAS
* Professors of the XXIX Course on International Law: Drs. José
Félix Fernández Estigarribia, Daniel Vignes, Jaime Aparicio, Nigel
Bankes and Fabian Novak.
157
INDEXES
158
159
ONOMASTIC INDEX
AFONSÍN 39
ANTHONY, Raymond 154
APARICIO, Jaime 138, 156
ARMAS PFIRTER, Frida 139, 140
ARRIGHI, Jean-Michel 9, 11, 138
BANKES, Nigel 137, 138, 156
BOGGIANO 39
BOUREL, Pierre 38
BURMAN, Harold 30
CALLIZO, Federico 150, 151, 153
CASELLAS, Roberto 118
CAVETT, Mary-Ellen 78
CRUZ, Francisco 153
DELPIAZZO, Carlos 136, 137
DÍAZ MULLER, Luis 140
DUGARD, Christopher J.R. 142
EVENETT, Simon J. 79, 95, 96
FERNÁNDEZ ARROYO, Diego 140
FERNÁNDEZ ESTIGARRIBIA, José Félix 139, 156
FRIED, Jonathan T. 9, 10, 11, 12, 13, 23, 75, 76, 77, 133, 140
GAJA, Giorgio 142
GARCÍA AMADOR, Francisco V. 136
GÓMEZ ROBLEDO VERDUZCO, Alonso 11
GONZÁLEZ GÁLVEZ, Sergio 9, 10, 11, 12, 13, 14, 24, 27, 61, 77, 109,
110, 111, 115, 117, 118, 121, 122, 136, 138,
140
GOTTESMAN, MICHAEL 53
GUILLAUME, Gilbert 114
HALL, Christopher Keith 153
HARRIPAUL, Samraj 153
HERBERT 39
HERRERA MARCANO, Luis 9, 10, 11, 13, 32, 111, 131
HERRERA, Julio 137
HUDSON-PHILIPS, Karl 153
JUENGER 39
LAGOS, Enrique 9, 11
LEACOCK, Charles 153
LEVENSTEIN, Margaret C. 79, 95, 96
MARCHAND STENS, Luis 11
MICHAEL, Víctor 49, 53, 54
MIKULKA, Vaclav 142
MOLETTA, Manoel Tolomei 9, 11, 142
MUELA, Miaja de la 36
NEGRO, Dante M. 9, 11
NELSON, R. 153
NOLASCO, J. Roberto 138
NOVAK, Fabian 137, 156
OPERTTI, Didier 32, 140, 156
PAOLILLO, Felipe 9, 11, 12, 13, 14, 23, 24, 27, 61, 63, 77, 102,
103, 107, 111, 126, 140
PELLET, Alain 142, 143
160
POLLARD, Brynmor Thornton 3, 9, 10, 11, 12, 13, 14, 20, 23, 24, 27, 63,
77, 101, 103, 107, 111, 126, 131, 132, 135,
140, 141, 149, 150, 151, 153
PUNWASI, Soebhaschandre 153
RAMÍREZ, Silvina 153
RATTRAY, Kenneth O. 9, 11, 12, 13, 14, 20, 23, 24, 27, 63, 101,
102, 103, 107, 110, 111, 117, 126
REBAGLIATI, Orlando R. 9, 10, 11, 13, 14, 24, 27, 62, 63, 77, 102,
110, 111, 137, 140, 141, 144
RICHARDS-JOHNSON, Gloria 154
RODAS, Joo Grandino 9, 10, 11, 12, 13, 14, 19, 20, 23, 24, 32, 62,
63, 75, 76, 77, 78, 83, 101, 102, 103, 107,
111, 118, 126, 131, 132, 135, 140, 141
RUIZ-CABAAS, Miguel 139, 156
SÁNCHEZ, Luciana 150, 153
SAVIGNY 36
SIMMA, Bruno 142
SOARES, Joo Clemente Baena 139, 156
SPEHAR, Elizabeth 137
STORY 36
SUCCAR, Salim 153
SUSLOW, Valerie Y. 79, 95, 96
TREJOS SALAS, Gerardo 10
TRINDADE, Antônio Augusto Cançado 138, 156
UZAL 39
VARGAS, Juan Enrique 132, 150, 151, 153
VÁZQUEZ, Carlos Manuel 9, 10, 11, 12, 13, 14, 19, 20, 22, 23, 24, 25,
26, 27, 32, 33, 35, 48, 63, 77, 102, 103, 105,
107, 110, 126, 131, 140
VIDIGAL, Geraldo Facó 139
VIGNES, Daniel 138, 156
VILLALTA VIZCARRA, Ana Elizabeth 9, 11, 12, 13, 14, 19, 21, 24, 25, 27, 34, 35,
48, 57, 63, 77, 103, 107, 111, 126, 139, 140
VÍO GROSSI, Eduardo 9, 10, 11, 12, 13, 63, 101, 103, 105, 106,
107, 109, 111, 117, 125, 126, 133, 134
YAMADA, Chusei 142
YOUNG, Gladys 153
161
SUBJECT INDEX
BURMAN, Harold 30
Cooperation 3, 10, 17, 27, 28, 30, 31, 32, 62, 63, 80, 83,
85, 86, 88, 89, 91, 92, 95, 96, 98, 101, 105,
119, 127, 131, 132, 133, 134, 135, 141, 142,
143, 146, 148, 149, 150, 154
Corruption 3, 9, 17, 117, 118, 119, 132, 135
Course on international law 140
Democracy 10, 14, 45, 46, 48, 125, 126, 131, 132, 133,
134, 136, 137, 143, 145, 146
Democratic Charter 125, 133, 134, 137, 143, 145, 146
Discrimination 3, 9, 17, 51, 61, 62, 63, 64, 65, 66, 67, 68,
69, 70, 71, 72, 73, 74, 79, 81, 131, 132, 134,
143, 146
EVENETT, Simon J. 79, 95
Homage 13, 136, 140
Human rights 62, 65, 66, 67, 72, 113, 115, 127, 135, 138,
144, 156
racism 3, 9, 17, 61, 62, 63, 64, 65, 67, 68, 69, 70,
72, 73, 74, 132, 134, 143, 146, 147
Integration 100, 106, 139
Inter-American Juridical Committee
agenda 3, 9, 12, 17, 19, 20, 22, 25, 28, 30, 34, 35,
46, 48, 51, 54, 75, 101, 102, 109, 110, 111,
112, 114, 115, 118, 121, 133, 137, 138, 142,
145, 146, 147, 148, 149, 150, 151
centennial of the 105, 131
Inter-American Specialized Conference on 3, 10, 12, 13, 17, 19, 20, 21, 22, 23, 24, 25,
Private International Law-CIDIP 26, 27, 29, 30, 32, 33, 34, 35, 36, 37, 39, 40,
41, 43, 45, 46, 48, 50, 52, 58, 59, 131, 132,
135, 140, 141, 143, 144, 146, 148
International Criminal Court 3, 10, 12, 13, 17, 65, 109, 110, 111, 112,
113, 114, 115, 116, 149
International organizations
Organization of American States 3, 7, 14, 24, 34, 67, 84, 102, 106, 110, 111,
112, 116, 125, 126, 144, 149
United Nations 27, 65, 66, 67, 68, 69, 71, 72, 93, 94, 109,
111, 112, 113, 115, 116, 141, 144
World Trade Organization 27, 30, 95, 97
Joint Meeting 3, 12, 13, 17, 109, 110, 111, 112, 116, 143,
148, 149
Justice 3, 10, 12, 13, 17, 43, 44, 45, 47, 53, 56, 60,
101, 102, 132, 133, 141, 149, 150, 151, 152,
153, 154
Administration of justice 102
LEVENSTEIN, Margaret C. 79, 95
MICHAEL, Víctor 49, 53, 54
Minors 134
Right to information 3, 10, 123, 133
SUSLOW, Valerie Y. 79, 95
Terrorism 3, 10, 17, 101, 127, 131, 149
Traffick 121