Friedrich K. Juenger

Contract Choice of Law in the Americas

The lodestar of contract conflicts, i.e., the principle of party autonomy,1 has long been controversial in Latin-American legal literature and practice.2 This principle is of course irreconcilable with the classical Savignian approach, which authors and courts throughout the subcontinent still profess to follow.3 Such doctrinal scruples, however, did not stop European courts from adopting it for the simple reason that party autonomy is indispensable for the conduct of international trade and commerce. Indeed, it is difficult to envision a safe and orderly conduct of business across national borders-in Kozolchyks terms a juridical road on which the free flow of goods

Some comments on European procedural harmonization

It is a privilege to add my comments to those of a distinguished proceduralist and comparativist,1 the Director of the Hellenic Institute of International and Foreign Law, Professor Konstantinos D. Kerameus of Athens University, who has given us a helpful overview regarding the current status of procedural harmonization in Europe.2 As he points out in the beginning of his paper, owing to the Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters,3 in Europe the law of civil procedure is leaving its national confines.4

The Inter-American Convention on the Law Applicable to International Contracts: some highlights and comparisons

The Fifth Inter-American Specialized Conference on Private International Law (CIDIP-V) of the Organization of American States (OAS) met from March 14-18, 1994 in Mexico City. Chaired by the eminent Mexican jurist Lic. Jose Luis Siqueiros, whom the member state delegations elected by acclamation, its agenda included conventions on contract choice of law and on the civil and penal aspects of the traffic in minors. Professors Gonzalo Parra-Aranguren of Venezuela and Didier Opertti of Uruguay served as chairmen of the Conferences two working committees, which were designated as Committee I and Committee II. Committee I dealt with the InterAmerican Convention on the Law Applicable to International Contracts,2 which is the subject of this Article. The idea of codifying contract choice of law was first discussed in Montevideo during the 1979 CIDIP-II, and the topic was included in the agenda of the 1989 CIDIP-IV, which was likewise held in Montevideo.3 At that conference the Mexican delegation submitted a draft prepared by Lic. Leonel Pereznieto, which had the support of the Uruguayan delegation but met with some resistance. In consequence, CIDIP-IV merely adopted a set of principles for future discussion (bases propuestas por la Conferencia para el estudio futuro del

American and European conflicts law

For our colloquium, Professor Vitta has chosen the perfect setting: the city of Bologna, cradle of the civil law and of the conflict of laws. Europeans and Americans alike owe a debt to the labors of the glossators and commentators who in this very spot invented our science. Although our nation did not exist when Irnerius, Bartolus and all the other great doctors taught here, we too can trace our conflicts law back to the simple answer Aldricus once gave to a very difficult question.1 Let me remind you that our federal system strikingly resembles Upper Italy in the Middle Ages: against the backdrop of a supranational common law our states, like the medieval Italian cities, have developed their own legislation and case law. Thus, American soil has provided the same fertile ground for conflicts, a mixture of diversity and universality, that had once produced the mos italicus. Moreover, there was as little in the common law of England as in the Justinian Code to resolve the multistate problems that first appeared in Italy and much later in the New World. Fortunately, the Americans did not have to invent conflicts law from scratch. Soon after the birth of our Republic a great American scholar, teacher and judge synthesized the European learning and added his own in a treatise2 that impressed even the great Savigny.3 What Story planted in Americas fertile federalist soil quickly took root and has since yielded an indigenous crop of conflicts law and literature. Might it be possible to retransplant to Europe our mutations of European ideas? Or has our conflicts flora become too exotic for European cultivation?

The german Constitutional Court and the conflict of laws

At issue was the refusal by the president of the Oberlandesgericht Hamm, an intermediate appellate court. to grant a waiver necessary to enable Jose, a Spaniard, to wed Hilde, a German divorcee. His decision was sustained by the intermediate appellate court on the ground that Spanish law, invoked by a German conflicts rule, does not recognize the womans German divorce from her former German husband. The Constitutional Court reversed, holding that the constitutional rights of the prospective spouses had been infringed.

Jurisdiction, Choice of law and the Elusive Goal of Decisional Harmony

The scholarly contributions of C.C.A. Voskuil—Bert to his friends—include a number of publications devoted to various aspects of international civil procedure, a topic all too often neglected by conflicts scholars. He has paid special attention to jurisdictional issues, which furnished the topic for the doctoral thesis he presented thirty years ago. The honorees emphasis on the procedural side of private international law reflects a commendable awareness of the implications jurisdictional and other adjective rules have in practice, and how they touch upon the theoretical foundations of our discipline. It therefore seems appropriate to discuss some of these implications in the Liber Amicorum dedicated to our Dutch friend and colleague.