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Private
International Law
SYNOPSIS
A.
ARGENTINE INTERNATIONAL JURISDICTION
25.101
1.
Election of Argentine or International
Judges 25.103
2. Jurisdiction Conflicts in the
Argentine Supreme Court 25.105
B.
SUBJECT MATTERS
1. Persons
1.1.
Natural Persons 25.107
1.2 Juristic Persons
1.2.1. Civil Juristic Persons 25.110
1.2.2. Commercial Companies 25.115
2.
Property
2.1.
Real Property 25.123
2.2. Personal Property 25.126
3.
Contracts
3.1.
General principles 25.128
3.2. Parties’ autonomy
3.2.1. Conflict autonomy 25.130
3.2.2. Material autonomy 25.131
3.3. Purchase and Sale 25.132
3.4. Bank contracts
3.4.1. Loans 25.133
3.4.2. Current account, Credit opening,
Discount, Letter of credit,
Bank security deposit 25.135
3.5. Transport
3.5.1. Land transport 25.136
3.5.2. Sea transport 25.137
3.5.3. Air transport 25.141
3.6. Money loans 25.142
4.
Letter of Exchange, Promissory note,
Check 25.143
C.
LETTERS OF ROGATORY 25.147
D.
INTERNATIONAL ARBITRATION 25.149
E.
ACKNOWLEDGMENT AND EXECUTION
OF
FOREIGN COURT DECISIONS 25.152
F.
INTERNATIONAL TREATIES AND AGREEMENTS
1.
1889 and 1940 Montevideo Treaties
1.1.
1889 Montevideo Treaties 25.155
1.2. 1939-1940 Montevideo Treaties
25.156
2.
Conventions approved by Conferences
Specialized
on International
Private Law called by the O.E.A.
(Organization of
American States )
held in Panama, 1975 (cidip1),
Montevideo, 1979
(cidip2) and La Paz,
1984 (cidip3) 25.157
3.
Agreements entered into with Uruguay 25.159
4. Conventions approved by The Haye
Conference
in International
Private Law 25.160
5. Convention on statutes of
limitation in case of international
purchase and sale of
goods 25.161
6. United Nations Convention on
International Purchase
and Sale of Goods
25.162
A. ARGENTINE INTERNATIONAL JURISDICTION
25.101
The Argentine Republic has adopted the
international law principle according to
which the courts of a State have direct
jurisdiction over the people and things
within its territory (decisions
effectivity principle).
25.102
The following international jurisdiction
rules are in force in relation to
contracts:
"All
contracts that must be fulfilled in
Argentina, the debtor may be sued before
Argentine courts, even though he is not
a resident or has constituted a domicile
in the country." (Civil Code,
article 1215).
"Should
the debtor reside or have a domicile in
Argentina and the contract must be
fulfilled out of the country, the
creditor may sue the debtor either
before the courts of his domicile or
before the courts of the jurisdiction
where the contract is to be fulfilled,
although the debtor might not be there
at the time." (Civil Code, article
1216).
1.
Election of Argentine or International
Judges
25.103 Argentine
law admits the extension of jurisdiction
in favor of international judges or
arbitrators acting out of Argentina,
except in the cases in which Argentine
courts have exclusive jurisdiction or
when that extension is forbidden by law.
25.104
This extension may be agreed by the
parties at any time, i.e., at the time
of execution of the contract ("ante
litem natam"), or during or
after litigation ("post litem
natam").
2.
Jurisdiction Conflicts in the Argentine
Supreme Court
25.105
The Argentine Supreme Court of Justice
(C.S.J.N.) ratifies Argentine
international jurisdiction control when
such jurisdiction depends upon the
interpretation of an international
treaty, or when the interpretation of
internal rules related to such
jurisdiction may result in injustice at
an international level.
25.106
According to judicial criteria in force
the Argentine international jurisdiction
rules have a federal nature, either
because they derive from a treaty or
from national common law, and therefore,
the application of such rules allows the
filing of a remedy before the Supreme
Court.
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B. SUBJECT MATTERS
1.
Persons
1.1. Natural Persons
25.107
The law applicable to legal capacity or
incapacity of fact is that of the
domicile of the person (Civil Code,
articles 6, 7 and 948). The definition
of domicile is governed by Argentine
law, except for cases of application of
Montevideo Treaties that provide for
specific qualifications.
25.108
Argentine law adopts a criterion
according to which in case of change of
domicile, the coming of age or
emancipation is governed by the law more
favorable to such coming of age or
emancipation (Civil Code, articles 138
and 139).
25.109
The law of absentee’s last domicile
applies in the case of absence or death
declaration. The judge of the last
domicile in Argentina of the alleged
deceased has exclusive international
jurisdiction to declare the presumption
of death (Civil Code, article 110 and
article 57, 1889 and 1940 Montevideo
International Treaties on Civil Law). If
the absentee has property in Argentina,
national courts also have concurrent
international jurisdiction (article 16,
Law 14,394).
1.2. Juristic Persons
1.2.1. Civil Juristic Persons
25.110
The principle is the acknowledgment and
extraterritorial capacity of juristic
persons constituted abroad.
25.111
There
is some juridical controversy in
relation to the existence and capacity
of this type of persons since some
authors consider that they are governed
by the law of their domicile, whereas
others believe that the law of the place
of constitution should be applied,
according to the companies law criteria
(article 118, Law 19,550).
25.112
1889 Montevideo Treaty establishes the
incorporation system; this was modified
by the 1940 Treaty that imposes the main
office system.
25.113
Article
34 of the Civil Code adopts the ample
extraterritoriality rule in relation to
associations and foundations as long as
their purpose is common welfare and are
authorized to operate under the law of
the place of constitution (Civil Code,
article 33). If pursuant to this
principle associations and foundations
do not require a state authorization to
operate they are acknowledged as mere
associations (Civil Code, article 46);
however, they may obtain from the
Argentine State an specific
authorization to operate pursuant to the
Argentine law.
25.114
On the other hand, civil and commercial
companies are recognized without this
kind of restrictions, except for control
of fraud to the law and public order.
1.2.2. Commercial Companies
25.115
a) Commercial companies personal law.
The
law of the place of constitution governs
the existence, form, substantial
validity, purpose and legal capacity of
commercial companies (article 118, Law
19,550). This law governs the
company’s constitution in relation to
formal and substantial aspects. In our
law place of constitution must be
understood as the place where legal
status is acquired, pursuant to the law
in force in the country or place of
registration.
25.116
b) Company having domicile or principal
purpose in Argentina.
Article
1224 of Law 19,550 establishes that
"the company constituted abroad
having its main office in Argentina or
the purpose of which is to be fulfilled
in such country, will be considered a
local company with respect to the
compliance with constitution
formalities, reform of constitution
documents and operating control".
25.117
c)
International Subscription Agreement.
As
a general rule this agreement is
governed by the law of the place of
constitution of the company.
25.118d)
Rights and duties of the partners or
shareholders.
These
are governed by the company’s personal
law (lex societatis: articles 118
and 124, Law 19,550), as long as they
are compatible with Argentine public
order. (Civil Code, article 14, point
2).
25.119
e) Corporate bodies.
Appointment
of corporate bodies is governed by lex
societatis. Responsibility of
representatives of companies constituted
abroad is subject to Argentine law
(article 121, Law 19,550). The rules
governing responsibility of directors of
Argentine corporations apply in case of
non-regulated companies.
25.120
f) Isolated acts.
Foreign
companies are authorized to perform in
Argentina isolated commercial acts
(article 118, second paragraph, Law
19,550).
25.121
g) Corporate acts.
In
order to perform the acts pursuant to
its purpose, to set up branches or any
other kind of permanent representation,
the company constituted abroad must:
a)
prove the existence of the company
according to the law of its country,
b)
establish a domicile in Argentina,
pursuant to publication and registration
requirements in Argentina,
c)
justify the decision to create such
representation and appoint a person to
be in charge.
In
case of branches, the company is obliged
to keep separate accounting records and
to submit itself to governmental control
(article 110, Law 19,550).
25.122
h) Constitution of companies in
Argentina.
Such
constitution is not considered an
isolated act, so whenever a foreign
company constitutes a company in
Argentina, it must prove that its
constitution is in compliance with its
personal law and register the articles
of incorporation, amendments and other
authorizing documents as well as
documents relating to its legal
representatives. These requirements also
apply to the case of a foreign company
with a participation in a local company,
unless the participation is not
significant.
2.
Property
2.1.
Real property
25.123
Article 10 of the Civil Code submits
real property exclusively to Argentine
law in relation to its nature, rights of
the parties, capacity to acquire it,
ways of transfer and formalities.
Therefore, title to real property may
only be acquired, transferred or lost in
accordance with Argentine laws. Lex
rei sitae also governs rights in rem
and admissible privileges.
25.124
Article 1211 of the Civil Code
establishes that contracts entered into
abroad to transfer rights in rem on real
property located in Argentina must be in
the form of notarized public
instruments. If title to property is
transferred through such contracts, such
transfer must be notarized upon order of
a competent judge.
25.125
In case of mortgages, article 3129 of
the Civil Code imposes certain formal
and registration requirements with
respect to documents executed abroad to
constitute a mortgage on real property
located in Argentina. Article 1211 of
the Civil Code is applied and the cause
for constitution must be legal pursuant
to Argentine law.
2.2.
Personal property
25.126
Pursuant to article 11 of the Civil
Code, personal property is governed by
the laws of the place it is located, as
long as it remains permanently and there
is no intention to move it (lex situs).
25.127
Personal property that the owner carries
with him, or for his personal use, as
well as property to be sold or carried
to other place, is governed by the laws
of the owner’s domicile (lex
domicilii).
3.
Contracts
3.1.
General principles
25.128
A
contract is international only when the
places of execution and fulfillment are
in different States. In the event the
parties have not chosen the law
applicable to the contract (conflict
autonomy) or have not established a
solution for a certain question
(material autonomy), provisions of
articles 1205, 1209, 1210, and 1214 of
the Civil Code are applied.
25.129
When an international contract has no
contact with Argentina as the places of
execution and fulfillment are in third
countries, the law to be applied is that
of the place of execution if known. In
case of Argentine contact when the
places of execution and fulfillment are
both known, and one of them is in
Argentina, the contract is governed by
the law of the place of fulfillment
(Civil Code, articles 1209 and 1210).
Contracts executed among parties present
and in which place of execution is known
and place of fulfillment is unknown, are
governed by the law of the place of
execution (Civil Code, article 1205),
whether there is a contact with
Argentina or not. Contracts executed
among absent parties with no determined
place of execution but the place of
fulfillment is known, are governed by
the law of the latter, whether there is
a contact with Argentina or not (article
1204 C.C.). In case both the place of
execution and fulfillment are
undetermined, each party’s duties are
governed by the law of their respective
domicile (article 1214 C.C.), whether
there is a contact with Argentina or
not.
3.2.
Parties’ autonomy
3.2.1. Conflict autonomy
25.130
Argentine legal doctrine recognizes that
parties are entitled to choose the law
applicable to contracts, and therefore,
the rules provided for in Argentine law
apply only when the parties do not make
such choice. Such choice may be agreed
at the time of execution of the contract
or any time afterwards. This conflict
autonomy is subject to the fundamental
principle of public order of Argentine lex
fori.
3.2.2.
Material autonomy
25.131
Parties may also exercise the material
autonomy by creating agreed upon
material rules applicable to the
contract. These rules replace compelling
rules of the Argentine internal law, but
in a no way exclude the application of
public order principles and police rules
of the country to which the contract is
economically related.
3.3.
Purchase and Sale
25.132
Argentina has adopted the United Nations
Convention on international contracts on
the purchase and sale of goods (Law
22,765, March 30, 1983) that applies to
contracts on the purchase and sale of
goods entered into between parties
having premises in Argentina and in
other intervening State. (article 1,
paragraph 1, point a). Moreover,
Argentine judges should apply such
Convention to all cases in which
Argentine private international law or
that of any other State would be
applicable (article 1, paragraph 1,
point b).
3.4.
Bank contracts
3.4.1. Loans
25.133
Argentine case law in general has
adopted the so called "loans rules
and usages" drawn by the
International Chamber of Commerce that
unified several conventional rules on
this matter.
25.134
In cases not contemplated in such
material rules, Argentine conflict rules
are applied and in general these rules
take into account the law of the
domicile of the confirming bank, except
for the cases of an specific
relationship between the debtor and the
issuing bank.
3.4.2. Current account, Credit opening,
Discount, Letter of credit, Bank
security deposit
25.135
In
general the law of the bank’s domicile
applies to bank contracts.
3.5.
Transport
3.5.1. Land transport
25.136
As in the other contracts, in case the
parties have not exercised material or
conflict autonomy the law of the country
of fulfillment applies. To such purpose,
place of fulfillment is the carrier’s
domicile; however in some cases place of
fulfillment has been considered the
place of destination of goods.
3.5.2.
Sea transport
25.137
Argentina has adopted the rules of the
1924 Brussels Convention approved by Law
15,787, which applies when the parties
do not exercise their autonomy.
25.138
With regard to the transport of persons,
carrier’s responsibility with respect
to the passenger and luggage is governed
by Argentine law in cases of contracts
executed in Argentina or if the
obligation begins and is to be fulfilled
in Argentine ports, or when Argentine
courts have jurisdiction over the matter
(article 604, Law 20,094).
25.139
With regard to the transport of goods,
charters or transport of cargo in
general or isolated packages and
contracts in which the carrier
undertakes to deliver the cargo at
destination, are governed by the law of
the place of execution, the port of
unloading.
25.140
Articles 611 and 612 of Law 20,094
recognized international jurisdiction of
Argentine courts in all litigations in
which the shipowner or outfitee of a
foreign vessel is a party and the vessel
could be seized under Argentine law.
3.5.3.
Air transport
25.141
Argentina adopted the Warsaw Convention
on international air transport, and the
1955 The Haye Protocol that modified
such Convention.
3.6.
Money loans
25.142
In this case general principles for the
election of applicable law as well as
conflict and material autonomy apply,
and the extension of jurisdiction of
national judges is admitted.
4.
Letter of Exchange, Promissory note,
Check
25.143
Argentina has not adopted the 1930
Geneva Convention that regulates
conflicts of law in relation to letter
of exchange and promissory note.
Decree-law 5965/63 that regulates letter
of exchange does not provide for rules
related to conflicts of law applicable
to such securities.
25.144
Argentine jurists are divided between
those who consider the Civil Code rules
applicable and those who favored the
application of the 1940 Montevideo
International Land Commercial Law
Treaty.
25.145
In
relation to checks application of the
law of the paying bank’s domicile is
admitted.
25.146
Finally, it is important to mention that
by Law 22,691 Argentina ratified the
Interamerican Convention held in Panama
in 1975 on conflicts of law in relation
to letters of exchange, promissory notes
and invoices.
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C. LETTERS OF ROGATORY
25.147
The service of letters rogatory before
Argentine courts requires that the
issuing judge have international
jurisdiction, even in this case
rejection of same is the rule in case of
exclusive Argentine jurisdiction or if
the resolution affects public order
principles of Argentine law.
25.148
Argentina ratified the Interamerican
Convention on letters rogatory signed in
Panama on January 30, 1975 and the
Additional Protocol approved in
Montevideo on May 7, 1987. Law 22,410
approved the Argentine-Uruguayan
Agreement on equal procedure treatment
and letters rogatory, signed on November
20, 1980
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D. INTERNATIONAL ARBITRATION
25.149
Foreign awards may be executed in
Argentina pursuant to articles 517 and
519 of the Federal Procedure Code,
following the EXEQUATUR proceeding
applicable to court judgments (article
519 bis C.P.C.C.)
25.150
In relation to these awards there are
two special requirements: that the
extension of jurisdiction has been
admissible pursuant to article 1 of
C.P.C.C. and that the questions
submitted to arbitration are liable to
transaction according to Argentine law.
25.151
Law 23,619 approved the application of
the Convention on Acknowledgment and
Execution of Foreign Arbitration Court
Decisions held in New York on June 10,
1958.
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E. ACKNOWLEDGMENT AND EXECUTION
OF FOREIGN COURT
DECISIONS
25.152
Acknowledgment and execution of foreign
court decisions requires that such
decisions be issued by a court having
jurisdiction according to the
international Argentine jurisdiction
rules.
25.153
Court
decisions issued by courts having
concurrent jurisdiction with Argentina
are acknowledged pursuant to the
Argentine jurisdiction rules that admit
jurisdiction both of the place of
execution and defendant’s domicile
(articles 1215 and 1216 C.C.).
25.154
Argentina ratified the Interamerican
Convention on Extraterritorial
Effectiveness of foreign court decisions
and arbitration awards, signed in
Montevideo on May 6, 1979.
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F. INTERNATIONAL TREATIES AND AGREEMENTS
1.
1889 and 1940 Montevideo Treaties
1.1.
1889 Montevideo Treaties
25.155
Argentina has ratified the following
treaties signed in Montevideo in 1889:
a)
International Civil Law Treaty:
establishes conflict rules in relation
to persons, domicile, absence, marriage,
custody of minors, filliation,
guardianship, property, legal acts,
estates, statutes of limitation and
jurisdiction rules (Ratifications:
Argentina, Bolivia, Peru, Paraguay and
Uruguay. Adhesions: Colombia).
b)
International Commercial Law Treaty:
establishes conflict rules related to
acts of commerce, traders, companies,
land, maritime and life insurance,
letter of exchange, bankruptcy, etc.
(Ratifications: Argentina, Bolivia,
Peru, Paraguay and Uruguay. Adhesions:
Colombia).
c)
International Procedure Law Treaty:
regulates legalizations, fulfillment of
letters rogatory, court decisions and
judgments. (Ratifications: Argentina,
Bolivia, Peru, Paraguay and Uruguay.
Adhesions: Colombia).
d)
International Private Law Treaty:
establishes rules related to
jurisdiction and extradition
proceedings. (Ratifications: Argentina,
Bolivia, Peru, Paraguay and Uruguay).
e)
Invention Patents Treaty:
(Ratifications: Argentina, Uruguay,
Peru, Paraguay and Bolivia).
f)
Literary and Artistic Ownership Treaty:
(Ratifications: Argentina, Bolivia,
Peru, Paraguay and Uruguay. Adhesions:
France, Spain, Austria, Italy, Germany,
Hungary).
g)
Commerce and Factory Trademarks Treaty:
(Ratifications: Argentina, Uruguay,
Paraguay and Bolivia).
h)
Agreement related to the exercise of
liberal professions: (Ratifications:
Argentina, Uruguay, Peru, Paraguay, and
Bolivia. Adhesions: Colombia and
Ecuador).
1.2.
1939-1940 Montevideo Treaties
25.156
a)
Amendments to the 1889 Montevideo
International Civil Law Treaty.
b)
Amendments to the 1889 Montevideo
International Land Law Treaty.
c)
International Commercial Navigation Law
Treaty.
d)
Amendments to the 1889 Montevideo
International Procedure Law Treaty.
e)
Convention on exercise of Liberal
Conventions Rights.
2. Conventions approved by Conferences
Specialized
on International
Private Law called by the O.E.A.
(Organization of
American States) held
in Panama, 1975 (cidip1), Montevideo,
1979
(cidip2) and La Paz,
1984 (cidip3).
25.157
a)
CIDIP 1: Argentina ratified the
following conventions:
a.1)
conflicts of laws in relation to letters
of exchange, promissory notes and
invoices (Ratified by Costa Rica, Chile,
Ecuador, El Salvador, Guatemala,
Honduras, Mexico, Panama, Paraguay,
Uruguay, Venezuela, Dominican Republic).
a.2)
Letters rogatory (Ratified by Costa
Rica, Chile, Ecuador, El Salvador,
Guatemala, Honduras, Mexico, Panama,
Paraguay, Peru, Uruguay and Venezuela).
a.3)
Reception of evidence abroad: (Ratified
by Costa Rica, Chile, Ecuador, El
Salvador, Guatemala, Honduras, Mexico,
Panama, Paraguay, Peru, Uruguay,
Venezuela).
a.4)
legal regime for powers of attorney to
be used abroad: (Ratified by Costa Rica,
Chile, Ecuador, El Salvador, Guatemala,
Honduras, Mexico, Panama, Paraguay,
Peru, Dominican Republic, Uruguay).
25.158
b)CIDIP 2
b.1)
general rules on International Private
Law (Ratified by Peru, Uruguay).
b.2)
conflicts of laws in relation to
commercial companies (Ratified by
Guatemala, Mexico, Paraguay, Peru,
Uruguay, Venezuela).
b.3)
Additional Protocol to the Interamerican
Convention on letters rogatory (Ratified
by Ecuador, Mexico, Paraguay, Peru,
Uruguay).
b.4)
evidence and information about foreign
law (Ratified by Colombia, El Salvador,
Mexico, Paraguay, Peru, Uruguay,
Venezuela).
b.5)
compliance with preliminary injunctions
(Ratified by Ecuador, Paraguay, Peru,
Uruguay).
b.6)
extraterritorial effectiveness of
foreign court decisions and arbitration
awards (Ratified by Colombia, Ecuador,
El Salvador, Peru, Uruguay).
3.
Agreements entered into with Uruguay
25.159
a) Equal procedure treatment and letters
rogatory (law 22,410).
b)
Application and confirmation of foreign
law (law 22,411).
c)
Minors international protection (law
22,546).
d)
Legal Cooperation Agreement (law
22,547).
4.
Conventions approved by La Haya
Conference
on International
Private Law
25.160
Argentina
adopted the following Conventions:
a)
civil procedure, March 1, 1954 (law
23,502).
b)
convention eliminating the requirement
of notarization of foreign public
documents, October 5, 1961 (law 23,458).
c)
obtaining evidence abroad in civil or
commercial matters, March 18, 1970 (law
23,480)
d)
Convention on applicable Laws on
Intermediation and Representation
Contracts, March 14, 1978).
5. Convention on statutes of limitation
in case
of international
purchase and sale of goods
25.161
Law
22,408 approved this convention adopted
in New York on June 12, 1974.
6.
United Nations Convention on
International Purchase
and Sale of Goods
25.162
Law 22,765 approved this Convention and
the Protocol that amends the Convention
on Statutes of limitation in
international purchase and sale of
goods, both signed in Vienna on April 4,
1980.
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