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Huber and Contractual Choice-of-Law in the Argentine Civil Code
Published online by Cambridge University Press: 21 May 2009
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What immediately strikes the eye of a modem Huber reader is his clear perception of the realities and social and political issues perennially implicated by choice-of-law and the candid mirroring of such issues and realities in his proposed principles and rules. Huber ‘…posed in stark simplicity the basic dilemma of conflicts law in modern times to mediate between the pretensions of territorial sovereignty and the needs of international commerce’. This accounts for the seemingly everlasting freshness and relevance of Huber's writings.
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References
1. Yntema, H., ‘The Comity Doctrine’, 65 AJCL (1966) pp. 9–32, at p. 9Google Scholar, who refers to Huber as the ‘…most clear exponent…’ of the comity doctrine in the Netherlands to capture such realities. As Lorenzen, G., Selected Essays in the Conflict of Laws (1947) p. 162 has put it: ‘Huber's axioms must, in the nature of things, govern our subject until the complete sovereignty of the individual states is lost and a common superior has been established’.Google Scholar
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5. Idem.
6. There is no doubt that State sovereignty, as the incarnation of ’…the interests of the social group’, is the point of departure of Huber's ideas: Yntema, , loc. cit n. 2, at pp. 298, 306.Google Scholar
7. Dane, P., ‘Vested Rights, “Vestedness”, and Choice-of-Law’, 96 Yale LJ (1987) pp. 1191–1275, at p. 1203CrossRefGoogle Scholar. However, Currie's thoughts changed with time and culminated in a much more substantial recognition of competing interests and policies from foreign States: Kay, H.H., ‘A Defense of Currie's Governmental Interest Analysis’, 215 Hague Recueil (1989–III) pp. 13–204, at pp. 68–71 and 132–133.Google Scholar
8. On the relationship between vested rights notions and closeness or ‘reasonableness’ of connections, see Aranguren, G. Parra, ‘General Course of Private International Law: Selected Problems’, 210 Hague Recueil (1988–III) pp. 13–223, at pp. 144–158Google Scholar. See also, Mann, F., Studies in International Law (1973) pp. 34–41Google Scholar; Mann, F., Further Studies in International Law (1990) pp. 10–17Google Scholar. State interests may play a central role both for extending and attenuating the reach of each sovereign's international jurisdiction to prescribe which goes beyond the notion of close connection as mere groupings of contacts: The American Law Institute, 1 Restatement of the Law, The Foreign Relations Law of the United States (1987) pp. 235–254.Google Scholar
9. In general, de Visscher, Ch., Les effectivites en Droit international public (1967) and, particularly, at pp. 14, 16–17, 29, 32Google Scholar. See also, Touscoz, J., Le principe d' effectivité dans l'ordre international (1964) pp. 2–4, 13Google Scholar; Rigaux, F., Droit public et Droit privé dans les relations intemationales (1977) pp. 344–345Google Scholar; and Audit, B., Lafraude à la loi (1974) p. 41.Google Scholar
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12. See, in general, Olmstead, C., ed., Extra-Territorial Application of Laws andResponses Thereto (1984)Google Scholar; Neale, A. and Stephens, M., International Business and National Jurisdiction (1988)Google Scholar; Lange, D. and Born, G., eds., The Extraterritorial Application of National Laws (1987).Google Scholar
13. In Huber's own words: ‘It follows, therefore, that the solution of the problem must be derived not exclusively from the civil law, but from convenience and the tacit consent of nations. Although the laws of one nation can have no force directly within another, yet nothing could be more inconvenient to commerce and to international usage than that transactions valid by the law of one place should be rendered of no effect elsewhere on account of a difference in the law’. Loc. cit n. 2, pp. 164–165.Google Scholar
14. Yntema, , loc. cit n. 1, at pp. 28–30. See the works cited supra at n. 12.Google Scholar
15. Lorenzen, , op. cit. n. 1, at pp. 138–139.Google Scholar
16. Yntema, , loc. cit. n 1Google Scholar. This was clearly perceived by the main source of Argentine Civil Code articles on international contracts: J. Story's Commentaries on the Conflicts of Laws (reprint of the 1834 edition) (1972) p. 32:Google Scholar
‘The latter [Huber] has at least this satisfactory foundation for his most important rule, that he is mainly guided in it by the practice of nations, as a solid proof of the acknowledged law of nations… Mutual utility presupposes that the interest of all nations is consulted, and not that of one only. Now, this demonstrates, that the doctrine owes its origin and authority to the voluntary adoption and consent of nations. It is, therefore, in the strictest sense a matter of the comity of nations, and not of absolute paramount obligation, superseding all discretion on the subject’.
Thus, according to Story's reading of Huber, though there is no ‘natural law’ imposing the extraterritoriality of foreign laws—since, at the end of the day, the State's will shall always prevail—sovereign States do reach explicit or implicit agreements of a legal and not merely moral nature which, though based on reasons of convenience, favor extraterritoriality without abdicating discretionary powers (public policy) permitting the restraining of the former under certain circumstances. Huber considers private international law as a part of ius gentium and for that reason responding to the common interest and tacit consent of all nations and not to unilateral and arbitrary determinations from isolated sovereign States: Meijers, E., ‘L'Histoire des principes fondamentaux du Droit international privé à partir du moyen age’, 49 Hague Recueil (1934–III) pp. 543–686, at pp. 667–668Google Scholar. See also Aranguren, Parra, loc. cit. n. 8, at p. 62.Google Scholar
17. Alfonsin, Q., I Escritos Juridicos (1975) pp. 88–89.Google Scholar
18. Yntema, , loc. cit a 2, p. 306Google Scholar. As Lorenzen puts it, ‘The Dutch provinces had just gained their independence and formed a federation. But this federation affected but little the independence of the individual provinces in which there existed an intense jealousy of their local rights’ (op. cit. n. l. at p. 138)Google Scholar. As Lorenzen also says (ibid, at p. 156): ‘…Huber's object was to write a practical treatise which should state the existing law’.
19. Huber, , loc. cit n. 2, p. 166Google Scholar. Yntema, , loc. cit. a. 1, p. 27.Google Scholar
20. Huber, , loc. cit. n. 2, pp. 165–166.Google Scholar
21. Ibid. p. 174.
22. Yntema, , loc. cit. a 1, p. 27.Google Scholar
23. This is clear from Chapter II on General Maxims of International Jurisprudence of Story's ‘Commentaries’ (op.cit n. 16), containing not only Huber's three basic principles but also a strong defense of Huber's thoughts and a criticism of his detractors (pp. 24, 29–38). Of course. Chapter VIII of the ‘Commentaries’ on Foreign Contracts is dominated by Huber's thoughts (pp. 198–199, 209, 269–270).
24. Huber, , loc. cit. n. 2, pp. 176–177.Google Scholar
25. Ibid. pp. 177–178. On Huber's obscurity on the law governing capacity, see Lorenzen, , op. cit. n.l, p. 140.Google Scholar
26. Story, , op. cit n. 16, No. 242 (pp. 201–202); No. 280 (p. 233); Nos. 263–267 (pp. 219–224).Google Scholar
27. Also through Story, , op. cit. n. 16, Nos. 244 (pp. 203–204), 351 (pp. 290–291); 242 (p. 202) and 280 (p. 233)Google Scholar. The notion of fraude à la loi was already anticipated by Huber: Yntema, , loc. cit. n. 1, p. 27.Google Scholar
28. Naon, H. Grigera, ‘Autonomfa Contractualy Derecho Aplicable’, 129/130 RevistadelDerecho Comercialy de las Obligations (1989) 409–462, at p. 458.Google Scholar
29. Sperduti, G., ‘Les lois d'application nécessaire en tant que lois d'ordre public’, 66 Rev. Crit. (1977) p. 257.Google Scholar
30. ‘These exceptions result from considering that the authority of acts and contracts made in other States as well as the laws governing contracts, do not respond to a strict legal imperative, nor are they effective outside the territory of each State through a legal command, but on account of the attention and consideration owed to nations’ (the author's own translation and emphasis from the Spanish original). Vfiez Sarsfield here follows, almost literally. Story, who also distinguished between ‘…the authority of acts and contracts done in other states’ and the authority of ‘the laws by which they are regulated…’ (op. cit. n. 16, p. 203). Accordingly, Story seems to accept the possibility of directly judging the validity of a ‘foreign’ contract from the standpoint of certain forum-essential mandatory rules (tow de police) without previously considering if such a contract is valid or invalid under the foreign law normally governing it, op. cit. a 16, pp. 213–215.
31. Naón, Grigera, loc. cit. n. 28, at pp. 458–460.Google Scholar
32. Fraude au jugement implies the evasion of a forum's choice-of-law rule or choice-of-law methodology by selecting a different forum through a choice-of-forum stipulation: Mayer, P., Droit international privé (1987) pp. 242–245Google Scholar. Though a more favorable attitude towards forum shopping may be perceived (see the note: ‘Forum Shopping Reconsidered’, 103 Harvard LR (1990) pp. 1677–1696Google Scholar; and Juenger, F., ‘La Selection del Faro’, in Duodécimo Seminario Nacional de Derecho International Privado (1989) pp. 261–268), it does not mean that it should be validated when its choice-of-law outcome implies the violation of fundamental policies of another forum. This is consistent with Article 6 of the Montevideo 1979 Inter-American Convention on General Private International Law Rules, ratified by Argentina, which does not permit the application of foreign law if it implies the ‘artificial’ evasion of ‘fundamental principles’ of the law of another State party to the Convention.Google Scholar
33. ‘Each independant people must judge by itself to which extent a sense or urbanity and of consideration towards other peoples allow the enforcement of the laws of a foreign country’ (the author's translation from the Spanish original).
34. See supra n. 17 and corresponding text. In its pertinent part, the footnote to Arts. 1206–1207 CC states the following: ‘Certainly, the fairest of limitations is: that the recognition of such laws be not prejudicial to the nation or its inhabitants’. And then, after citing Story: ‘Such laws fall under the wellknown rule that the laws admitted by the courts of a country not having enacted them are those which are not offensive to the State or the State's citizens’ (the author's translation from the original in Spanish).
35. See supra n. 16 and corresponding text.
36. ‘It is a moral and legal precept that respect and consideration towards the laws of a foreign nation cannot include those cases in which divine or natural laws are violated. Thus, contracts fraudulently evading the laws of one's country, or the rights or obligations of its nationals; contracts contrary to morality or the religion; contracts opposed to the policy or the institutions, are null and void in all countries affected by them, though they might be valid under the laws of the country where made’ (the author's own translation and emphasis).
37. The footnote to Art. 1208 CC states as follows: ‘As from the beginning of the last century, Pothier [citations omitted] had criticized, as inconsistent with morality and good politics, the practice of certain nations to give effect to contracts made in their territories to infringe the commercial laws of other countries, thus favoring national commerce. Certainly, a nation is not obligated to veil after the enforcement of the laws of a foreign country. Undoubtedly, it will not punish those who have associated themselves with smuggling into a neighboring country; but if such a contract is for any reason subject to litigation, or if any associate refuses to perform it, it would be an unseemly decision for a court of law to order the enforcement of such contracts’ (the author's translation from the Spanish original).
It must be noted that the notion of ‘taking foreign laws into account’ instead of ‘applying’ them in order to preserve the image that the national State is not actually lending its support to the application of foreign public laws is taken from Huber's seminal idea mat though the laws of one nation may not have force directly with another, they may be recognized abroad if not contrary to the forum's public policy. The notion of ‘taking foreign public laws or lois de police into account’ with respect to specific issues without thereby displacing the application of the laws governing other aspects of the transaction is increasingly accepted in the field of international arbitration (H. Grigera Naon, ‘The Applicability of Transnational Rules in International Commercial Arbitration’, Preliminary Report—Civil Law Countries, 2.12, International Law Association,Queensland Conference (1990), at pp. 8–9Google Scholar; Juenger, F., ‘The Lex Mercatoria and the Conflict of Laws’, in Carbonneau, T., ed, Lex Mercatoria and Arbitration (1990) pp. 213–224, at pp. 222–223Google Scholar) and also by national forums, like the German Bundesgerichtshof's decision (BGH of 22 June 1972, BGHZ 59, p. 82Google Scholar) taking into account Nigerian law to invalidate a contract for the sale of art objects smuggled out of Nigeria, which suggests that in spite of the new Section 38 of the Introductory law to the German BGB and German reservations to Art. 7(1) of the 1980 European Convention on the law applicable to obligations, a German forum would not deny effect to foreign mandatary laws which represent fundamental policies of a foreign forum even when German law is the proper law of die contract. See Jayme, E., ‘The Rome Convention on the Law Applicable to Contractual Obligations (1980)’, in Sarcěvic, P., ed., International Contracts and Conflicts of Laws (1990) pp. 46–47.Google Scholar
38. Naón, Grigera, loc. cit n. 28, pp. 449–450.Google Scholar
39. Naón, Grigera, loc. cit n. 28, pp. 456–460. Both lots de police and international mandatory rules are imperative rules not merely applying or intended to apply to local transactions but requiring, because of underlying interests and policies brought to bear by virtue of the issue at stake, extraterritorial application. By utilizing the expressions ‘lois de police’ and ‘international mandatory rules’ I attempt to differentiate situations in which the forum's interest in advancing the application of specific substantive forum norms is so intense that even an occasional or minimum contact with the forum will justify their extraterritorial application (lois de police) from situations in which interests and policies underlying specific forum substantive laws only become relevant in me presence of extensive groupings of contacts in die forum (international mandatory rules).Google Scholar
40. Even if they have occasionally elicited expressions of impotence and frustration; see Rabel, E., The Conflict of Laws. A Comparative Study, vol II (1960) p. 373: ‘The Argentine Code contains a maze of mysterious provisions’.Google Scholar
41. Naón, Grigera, loc. cit. n. 28, pp. 456–460.Google Scholar
42. Goldschmidt, W., Derecho International Privado (1988) pp. 393–397.Google Scholar
43. Thus, the British staunch support, on die one hand, to the principle ‘engrained in die concept of sovereignty’ that ‘primacy’ should be given to ‘…the laws and policies of the territorial state…’ to govern economic activities developing in the United Kingdom (which may be considered as an expression of the effectivity principle) (see Lowe, A. Vaughan, ‘Extraterritorial Jurisdiction. The British Practice’, 52 RabelsZ (1988) pp. 157–204, at pp. 179–182Google Scholar), as a reaction against the extraterritorial application of American antitrust and securities regulations; and, on the other hand, the vote by the British Government at the United Nations Assembly which was adverse to certain articles of the Charter of Economic Rights and Duties of States responding to that very principle. Figaux, F., ‘Les situations juridiques individuelles dans un systéme de relativité générate’, 213 Hague Recueil (1989–I) pp. 13–407, at p. 331.Google Scholar
44. It has been recently and persuasively argued that the validity of a contract and of the pactum de lege utenda depends on the lex fori and not on the law chosen by the parties and that the autonomy principle may be only relevant as a choice-of-law rule within the limits allowed by the objective criteria imposed by the lex fori for the application of international mandatary rules: Heuzé, V.La réglementation Française des controls internationaux (1990) pp. 138, 143, 344.Google Scholar
45. On the subsidiary role of private autonomy, see Heuzé, , op. cit. n. 44, at pp. 125–138, who points out that by artificially emphasizing the influence of the parties in the determination of the applicable law to the contract, the ab initio interference of lois de police and international mandatory rules predicated, to a considerable extent, on the sagesse des juges, is ignored and an unrealistic image of the security and predictability attainable in international transactions through party autonomy is thereby created.Google Scholar
46. Grigera, Naón, loc.cit. a 28, pp. 449–450 and the text at n. 38 supra.Google Scholar
47. ‘Huber was a positivist who stated fearlessly what he believed to be the actual law’ says Lorenzen, , op. cit n. 1, at p. 160Google Scholar, because such attitude was a necessary part of his general position favoring a sober and balanced consideration of all issues—social and legal—implicated by choice-of-law rather than a partisan simplification of the realities involved. Issues and policies concerning contractual choice-of-law are spelled out by Singer, J., ‘Real Conflicts’, 69 Boston Univ. LR (1989) pp. 1–129, at pp. 110–127Google Scholar. Even in cases in which statute law gives party autonomy maximum room, such as New York law in cases of contracts with a certain economic import, the chosen law may be displaced by virtue of fundamental policies underlying the forum's or foreign mandatory rules: Gruson, M., ‘The Act of State Doctrine in Contract Cases as a Conflict-of-Laws Rule’, 2 Univ. Illinois LR (1988) pp. 519–561, at pp. 520–524Google Scholar. The announced bases for considering the law applicable to international contracts which will guide the studies of Working Commission n for the preparation of an Inter-American Convention on this topic, as approved by the IV Inter-American Specialized Conference on Private International Law—CIDIP TV—do not lose sight, on the contrary, of the essential realities, issues and policies involved by contractual choice-of-law: Sosa, G. Lucas, ‘La CIDIP IV y el Centenario de los Tratados de Montevideo de 1889’, Jurisprudence Argentina, No. 5653 (3 01 1990) advanced sheet, pp. 1–18, at p. 18.Google Scholar