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The Impact of the Hague Conventions on Portuguese Private International Law
Published online by Cambridge University Press: 21 May 2009
Extract
Portugal is one of the European countries that has been involved since the earliest time with the work of the Hague Conferences. Moreover, its participation in activities concerning the unification of private international law rules started even before the first conference in 1893. When the Italian Government, under the influence of Mancini, then its Minister for Foreign Affairs, tried to summon, in 1885, an international conference on the recognition of foreign judgments, Portugal was one of the twenty-two European and Latin-American countries that supported the idea. As is well known, this conference never took place, but the idea of the unification of private international law rules did not die and, under the proposal of Asser, the Dutch Government convoked in 1893 the first Hague Conference on Private International Law. Portugal was once again one of the twelve States that met for this purpose in The Hague between the 12th and 27th September.
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References
1. The Convention on Civil Procedure of 1896 and the Additional Protocol of 1897 were approved (7 July 1898) and ratified (28 July 1898) even before they entered into force internationally on 25 May 1899. As for the three Conventions of 1902 (on conflict of laws concerning marriage, conflict of laws and jurisdictions relating to divorce, legal separations and guardianship of minors), they were all approved on 20 September 1906 and ratified on 7 February 1907. The Convention on Civil Procedure of 1905, which replaced the two texts of 1896 and 1897, was approved on 17 October 1908 and ratified on 31 March 1909 (also before its entry into force which occurred on 27 April 1909). Finally, the other Conventions that came into force internationally (effects of marriage and interdiction and other similar measures of protection) were also approved on 17 September 1908, but ratification only took place on 12 July 1912.
2. Essentially by ProfVilela, M., who besides having written a long commentary on these conventions (‘Estudo sobre as Convencóes de Haya de Direito Internacional Privado’, in Revista de Legislaçāo e Jurisprudência, no. 1805, 9 October 1909–no. 2030, 29 June 1916) introduced their analysis in university courses (Tratado Elementar de Direito Internacional Privado (1921–1922).Google Scholar
3. Except the Convention on civil procedure. It was later replaced by the one of 1954 on the same subject.
4. Matta, C. da, Direito Internacional Privado I- Tratados Normativos.Google Scholar
5. The Convention of 1954 on Civil Procedure was ratified in 1967; the Convention of 1958 on Recognition and Enforcement of Decisions Relating to Maintenance Obligations in Respect of Children in 1974; the Convention of 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents in 1969; the Convention of 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters in 1974; the Convention and its Additional Protocol of 1971 on Recognition and Enforcement of Foreign Judgements in Civil and Commercial Matters in 1983; the Convention of 1970 on the Recognition of Divorces and Legal Separations in 1985; the Convention of 1970 on the Taking of Evidence Abroad in Civil and Commercial Matters in 1975; and the Convention of 1973 on the Recognition and Enforcement of Decisions Relating to Maintenance Obligations in 1976.
6. Nevertheless we know that this instrument has not been considered successful by the Conference itself. Another is being prepared to replace it — the Convention on international cooperation and protection of children in respect to intercountry adoption, whose preliminary draft (drawn up by a special commission in February 1992) is scheduled to be discussed and approved at the 17th Session in 1993.
7. Portugal signed this instrument, although the ratification has not followed the first step of the international acceptance of this text. And the same occurred with the Convention of 1978 on the Law Applicable to Matrimonial Property Regimes, which came into force on 1 September 1992.
8. The Convention of 1956 on the Law Applicable to Maintenance Obligations in Respect of Children and the Convention of 1961 Concerning the Power of Authorities and the Law Applicable to Protection of Minors were ratified in 1969. The Convention of 1973 on the Law Applicable to Maintenance Obligations was ratified in 1977, and the Convention of 1980 on Civil Aspects of International Child Abduction in 1983.
9. The Convention on the Law Applicable to Succession to the Estates of Deceased Persons remains in this subject as the only instrument in which Portugal has not yet shown any interest.
10. That came into force on 1 October 1992. The Portuguese ratification took place in 1982.
11. The Convention of 1955 on the Law Applicable to International Sales of Goods, the Conventions of 1958 on applicable law on transfer of ownership and on jurisdiction of the contractual forum concerning the international sale of goods and the Convention of 1986 (whose aim is to replace the one of 1955) on the Law Applicable to Contracts for the International Sale of Goods.
12. Already in farce.
13. See Arts. 36(2) and 65(1) of the Civil Code (hereinafter CC).
14. Art 28(1) CC.
15. For a fuller analysis of this matter, see the work of Jobard-Bachellier, M.N., ‘L'apparence en droit international privé. Essai sur le rôle des répresentations individuelles en droit international privé”, LGDJ (1984) p. 111.Google Scholar
16. According to Art. 28(2) that rule is not applied, inter alia, when the other party is aware of the lack of capacity, in family and succession matters, and in acts related to the disposition of immovables located abroad.
17. See Art. 28(3).
18. In ‘Le principe de proximité dans le droit international privé contemporain. Cours général de droit international privé’, 196 Hague Recueil (1986:I) p. 11.Google Scholar
19. Art. 60(1) CC.
20. Art. 60(2) CC.
21. Art. 60(4) CC.
22. That includes also the national law of the adoptive child in the field of consent where the consent of the adoptive child is required by this law (Art. 61(1) CC). The solution is the same, if the requirement of consent is made by a law that governs relations of a familial or guardianship nature — in this case the consent needed would be given by the person to whom the child is linked in that relationship (Art. 61(2) CC).
23. Stressing particularly the importance of this subject, see Lipstein, K., ‘Adoption in Private International Law: Reflections on the Scope and the Limits of a Convention’, 12 ICLQ (1963) p. 835.CrossRefGoogle Scholar And for the analysis of Portuguese conflict-of-laws regulation in this field, see Ramos, R.M. Moura, ‘L'Adoption Internationale’, XXIIème Congrès International de Droit Comparé (1990) p. 5.Google Scholar
24. Even clearer because the referred policy consideration in matters of adoption is also of a conflictual nature, in the sense that it aims at juridical security. It would be, anyway, a conflictual policy that intends the pursuit of an inclusive interest — using the terminology of McDougal, L.L. III, “Choice of Law: Prologue to a Viable Interest — Analysis Theory’, 51 Tulane LR (1977) pp. 207, 216.Google Scholar Concerning the interest approach, see in Portuguese doctrine, Ramos, R.M. Moura, Da Lei Aplicável ao Contrato de Trabalho Internacional (1990) p. 592.Google Scholar
25. Art. 45(1) CC.
26. Art. 45(2) CC.
27. See also in this sense Lagarde, , loc. cit. n. 18, p. 32.Google Scholar And for a recent review of the functions of the professio juris see, in Dutch literature, the interesting study of Mostermans, E., “Party Autonomy: Why and When?’, in Forty Years On: The Evolution of Postwar Private International Law in Europe (1990) p. 123.Google Scholar
28. Art. 2 of the Convention of 1955 on the Law Applicable to International Sales of Goods, Art. 5 of the Convention of 1978 on the Law Applicable to Agency and Art. 7 of the Convention of 1986 on the Law Applicable to Contracts for the International Sale of Goods.
29. See Art 41 CC and Art 4 of the Commercial Code. Party autonomy, which in the first disposition is the relevant connecting factor concerning substance and effects of contractual obligations, still extends its range to questions of formal validity (Art. 36(1)) and to the issues concerning the existence and material validity of the consent of the parties as to the choice of applicable law (Art. 35(1)) For a survey of conflict of laws on contractual matters in the Portuguese doctrine, see Ramos, Moura, op. cit. n. 24, p. 421, particularly on labour contracts, p. 721.Google Scholar
30. See Art. 3 of the Convention of 1978 on this subject.
31. Art. 6 of the Convention of 1985.
32. Arts. 5, 6 and 11 of the Convention of 1989 on succession.
33. Because of the absence of this category in the Portuguese legal order (as well as in the other civil law systems).
34. According to Art. 53(1) and (2) CC, this will be the law of common nationality of spouses at the time of the celebration of the marriage; the law of common habitual residence at that moment, if there is no common nationality; and the law of the first matrimonial residence, in case they have no common residence.
35. Art. 53(3).
36. Art. 64(a) CC. In the absence of any reference of this kind these matters are subject to the personal law (the law of nationality — Art. 31(1)) of the de cujus at the time of the designation.
37. Art. 41(2) CC.
38. Along with the Rome Convention of 1980 on Conflict of Laws in Contractual Matters (Art. 3(1)) and in accordance with the prevalent doctrine in the field of commercial contracts. See Ramos, Moura, op. cit. n. 24, p. 428.Google Scholar
39. Art. 7.
40. And also where one of the spouses adopts the child of the other.
41. On this question, see mainly Dubler, C., Les clauses d’ exception en droit international privé (1983)Google Scholar, and in the Portuguese doctrine, Ramos, Moura, op. cit. n. 24, p. 373.Google Scholar
42. See for instance Art. 15(2)(b) in fine and 15(4)(a) in fine of the Convention of 1989 on succession to the estates of deceased persons.
43. See Art. 8(3) of the Convention of 1986 on the Law Applicable to Contracts for the International Sale of Goods and Art. 3(2) second phrase, and 3 in fine, of the Convention of 1989 on the Law Applicable to Succession to the Estates of Deceased Persons.
44. For example, Art. 7 of the Convention of 1985 on the Law Applicable to Trusts and on Their Recognition. The same happens also in other international instruments, such as Art. 4 of the Rome Convention on Conflict of Laws in Contractual Matters.
45. See the second part of Art. 7 of the Hague Convention on trusts and Att. 4(2) of the Rome Convention, ibid.
46. As also happens with codifications on national level.
47. Supra, section 3.3.
48. This does not exclude the existence of certain mechanisms that intend to coarect, in certain situations, the conflictual choice made by the legislator, in cases where it would be considered inconvenient. This happens in the previously mentioned Art. 28(1) where a deviation from the operation of the general rule of Art. 25 is foreseen, in order to suit the interest of facilitating international transactions (supra, section 2.1). This is also the case in Art. 31(2) (supra, section 3.1): the need to promote stability and continuity in the juridical life of persons, leads the law to the recognition of personal status acquired according to the law of habitual residence of the concerned persons, in spite of the fact that, regarding the law of nationality (the applicable law in personal matters: Art. 31(1) CC) such situations would be void; see Ramos, Moura, op. cit. n. 24, pp. 204–207 and 693, fn. 679.Google Scholar Finally, another example is provided by Art. 45(3) CC, which, in matters of delictual liability, contains a deviation from the general rule — locus delicti, seen as the place of the conduct and, in some circumstances (supra, section 3.1), the place of harm — when the defendant and plaintiff are of common nationality or have the same habitual residence having been occasionally (temporarily) abroad. In this case, the common national law (or the law of habitual common residence) will be the applicable law, notwithstanding the law of the local State, which must be applied to everyone; this could be considered as an application of the centre-of-gravity approach. With this rule a very similar result will be achieved to the one that would be a consequence of the proper law doctrine. See Ramos, Moura, op. cit. n. 24, p. 377.Google Scholar
But the common characteristic of this solution is the fact that the correction of the solution, which had been primarily put by the conflicts rule, is made by the legislator himself and not (as happens in the case of the escape clause) by the judge.
49. Art. 42(2) in fine CC.
50. Already signed by Portugal, , supra, section 2.Google Scholar
51. Whose Adhesion Convention was signed in May 1992 in Funchal.
52. Art. 25 CC.
53. An illustration of this trend can be seen in Art. 3 of the Convention of 1989 on the Law Applicable to Succession to the Estates of Deceased Persons, where habitual residence receives broader recognition as a connecting factor in this matter than nationality.
54. With the only exceptions being the Convention of 1965 on adoption (whose replacement by another instrument is scheduled) and the Convention of 1978 on the celebration of marriages, which only obtained international binding force in 1991.
55. See Art. 31(2) CC, and supra, section 3.1 and section 3.4, n. 48.
56. As they are conceived in the Portuguese legal order. See supra.
57. Questions of ownership have not been in general the target of the work of the Conference (except concerning matrimonial property regimes) and there is actually no need for such an effort in the light of the significant uniformity of views, which exists on the lex situs role.
58. Concerning conflict of laws, a small revision of this text on grounds of unconstitutionality took place in 1978 and limited itself to the following items: replacement of the husband's nationali ty as a connecting factor, in Arts. 52(2) in fine (interspouses’ relationships) and 60(2) in fine (adoption by married couples) by reference to the law presenting the closest relationship with the situation; and the suppression of the conflict rules concerning illegitimate filiation and legitimation. About this question in the Portuguese doctrine, see, in general, Ramos, Moura, “Portugal. Droit de famille. Dispositions interessant le Droit international privé’, 67 Rev. crit. (1978) no. 3, p. 598Google Scholar; and Direito Internacional Privado e Constituiçāo. Introduçāo a uma análise dos suas relaçóes (1980).Google Scholar After this date some other changes occurred in Portuguese private international law. For a short review of the fundamental ones, see, Ramos, Moura, “Aspects récents du droit international privé au Portugal’, 77 Rev. crit. (1988) no. 3, p. 473.Google Scholar
59. See essentially the work of Vilela, , cited in supra, n. 4.Google Scholar Other writers also paid attention to the results achieved at The Hague, either regarding some specific features of these texts (Ramos, Moura, op. cit. n. 24, p. 154)Google Scholar or concerning one particular approved instrument by the Conference: Pinheiro, L., A venda com reserva de propriedade em direito internacional privado (1991).Google Scholar