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The Birth of Modern Private International Law: The Treaties of Montevideo (1889, amended 1940)

By: Ana Delić (Tilburg University)

The first codification of private international law occurred through the Treaties on Private International Law, presented at the first South American Congress on Private International Law at Montevideo, Uruguay (hereafter: Congress of Montevideo), which took place from 25 August 1888 to 18 February 1889. The 1860s and 1870s were marked by an impulse to codify private international law in Europe and South America. In Europe, this impulse materialised a few years after the Congress of Montevideo with the first session of The Hague Conference for Private International Law (1893). The fact that newly liberated and independent South American nations were the first to successfully codify private international law marks an interesting chapter in the history of this legal field. From the beginning, the history of private international law in South America was divided between those favouring the principle of domicile versus those favouring the principle of nationality to establish the competent court and applicable law in conflict of laws cases.

The Congress of Lima (1877–1878) organised by Peru was the first congress on private international law. Jurists from Argentina, Bolivia, Chile, Cuba, and Ecuador attended. The debates revolved around the principles of nationality and domicile. The principle of nationality prevailed, inspired by the work of the Italian statesman and legal thinker Pasquale Stanislao Mancini (1817–1888) and the Italian Civil Code (1865). The Treaty of Lima of 1 January 1879 was ratified only by Peru and never came into effect. The main reasons for its eventual fate as dead law were the Pacific War (1879) between Bolivia, Chile, and Peru and the subsequent movements against the principle of nationality. 
 
On 14 February 1888, the Argentine Foreign Affairs Minister Norberto Quirno Costa and the Uruguayan Envoy Extraordinary and Minister Plenipotentiary Gonzalo Ramírez met to organise a South American congress to codify private international law. Ramírez compiled a draft code of private international law. The Congress of Montevideo was held between 25 August 1888 and 18 February 1889. Delegates from Argentina, Bolivia, Brazil, Paraguay, Peru, and Uruguay attended. The aim was not to harmonise legislation. As highlighted by the Argentine representative Roque Saens Peña, the work of the Congress of Montevideo demonstrated a respect for national sovereignty and the purpose was therefore a study of convergences in private international law in order to strengthen ties between contracting nations.
 
Eight treaties and an additional protocol were introduced: 
 

Treaties of Montevideo 1888–1889

Ratification and Accession

Description

1) Treaty on International Civil Law of 12 February 1889

Ratified by Argentina, Bolivia, Paraguay, Peru, and Uruguay. Acceded to by Colombia.

The capacity of persons is determined by the law of the domicile. The law of the place of celebration regulates marriage contracts. Property is governed by the law where it is situated. The lex fori regulates legal documents. Testaments must be in accordance with the law where the property is located at the time of the testator’s death.

2) Treaty on International Commercial Law of 12 February 1889 

Ratified by Argentina, Bolivia, Paraguay, Peru, and Uruguay. Acceded to by Colombia. 

The status of juridical acts as either civil or commercial and the status of the trader are based on the law of the place of business and the status of the trade. Matters of company law are governed by the country where the company has its commercial domicile. The actions of a company and those of its branches or agencies are under the jurisdiction of local law.

3) Treaty on International Penal Law of 23 January 1889

Ratified by Argentina, Bolivia, Paraguay, Peru, and Uruguay. 

The local law of the place where the crime was committed applies, or the law of the flag for crimes committed on the high seas. Conditions for asylum and extradition are delineated. 

4) Treaty on International Procedural Law of 11 January 1889

Ratified by Argentina, Bolivia, Paraguay, Peru, and Uruguay. Acceded to by Colombia.

Trials shall follow the procedural law of the state where they are promoted. Legalised judgements, public deeds, charges, and letters rogatory from one state are effective in all contracting states. 

5) Convention on the Exercise of Liberal Professions of 4 February 1889

Ratified by Argentina, Bolivia, Paraguay, Peru, and Uruguay. Acceded to by Colombia and Ecuador.

Nationals or foreigners in any contracting state who obtained a degree or diploma from a national authority dedicated to the liberal professions can practice in other contracting states if certain criteria are met.

6) Treaty for the Protection of Literary and Artistic Property of 11 January 1889 (171 CTS 453) 

Ratified by Argentina, Bolivia, Paraguay, Peru, and Uruguay.

The authors of literary or artistic works and their heirs will enjoy the same rights in other contracting states as in the state where publication took place.

7) Convention on Commercial and Industrial Trademarks of 16 January 1889

Ratified by Argentina, Bolivia, Paraguay, Peru, and Uruguay.

Those holding commercial or industrial trademarks as a result of registration in one contracting state will have the same rights in other contracting states. 

8) Convention on Letters Patent of 16 January 1889 

Ratified by Argentina, Bolivia, Paraguay, Peru, and Uruguay.

Those holding patents in one contracting state will have the same rights in the other contracting states if the initial patent registration occurs within a year. 

9) Additional Protocol to Treaties on Private International Law of 13 February 1889 

Ratified by Argentina, Bolivia, Paraguay, Peru, and Uruguay.

The rules for the application of one contracting state’s laws in the territory of another contracting state are described. The treaties signed by a contracting state shall apply irrespective of whether the person is a national or a foreigner.  

 

The Montevideo Treaties favour the principle of domicile and the ‘real seat’ doctrine. This approach to private international law is indebted to the German jurist and legal thinker, Friedrich Carl von Savigny (1779–1861). The ‘real seat’ doctrine is the determination of the law of a legal relation or seat by choosing amongst the four categories of factual relationships: 1) the domicile of a person determines capacity, succession, and family relations; 2) the location of a thing determines capacity and procedure; 3) the location of a legal transaction determines contracts (not delicts or capacity); and 4) the location of the court where the action is brought determines procedural law (not substantive law). 

Codification was once again on the agenda with the Second Pan-American Conference (1901) held in Mexico City. World War I stalled codification until the Bustamante Code of 20 February 1928. The Bustamante Code was ratified without reservation by Cuba, Guatemala, Honduras, Nicaragua, Panama, and Peru, and with specific reservations by Brazil, Haiti, the Dominican Republic, and Venezuela. The Bustamante Code consists of 437 articles drawn up by four members of the American Institute of International Law, including Antonio Sánchez de Bustamante y Sirvén (1865–1951), a Cuban lawyer, statesman, and twice judge of the Permanent Court of International Justice. Bustamante explicitly refrained from clarifying whether the principle of domicile or nationality applied in the Bustamante Code in order to achieve agreement amongst the participating states. 

The Second Montevideo Congress was organised by the governments of Argentina and Uruguay on the fiftieth anniversary of the first congress. The purpose was a re-examination of the treaties of Montevideo in order to: 1) adopt the necessary solutions for the present time; 2) modify and specify the provisions; and 3) reaffirm the doctrine established in the Americas. The drafters considered the Bustamante Code, the drafts of the American Institute of International Law, suggestions from the Institute of International Law and courts in contracting states, and academic scholarship. 

Two sessions, occurring from 18 July to 3 August 1939 and from 6 March to 19 March 1940, were attended by delegates from Argentina, Bolivia, Chile, Paraguay, Peru, and Uruguay. Eight treaties and an additional protocol were introduced:  

Treaties of Montevideo 1939–1940

Ratification and Accession

1) Treaty on Political Asylum and Refuge of 4 August 1939

Ratified by Paraguay and Uruguay. 

2) Treaty on Intellectual Property of 4 August 1939

Ratified by Paraguay and Uruguay.

3) Convention on the Exercise of Liberal Professions of 4 August 1939

Ratified by Argentina, Paraguay, and Uruguay.

4) Treaty on International Commercial Navigation Law of 19 March 1940

Ratified by Argentina, Paraguay, and Uruguay. 

5) Treaty on International Procedure Law of 19 March 1940

Ratified by Argentina, Paraguay, and Uruguay. 

6) Treaty on International Penal Law of 19 March 1940

Ratified by Paraguay and Uruguay. 

7) Treaty on International Commercial Law (other than maritime) of 19 March 1940

Ratified by Argentina, Paraguay, and Uruguay. 

8) Treaty on International Civil Law of 19 March 1940

Ratified by Argentina and Paraguay. Ratified with reservations by Uruguay. 

9) Additional Protocol to Treaties on Private International Law of 19 March 1940

Ratified by Paraguay and Uruguay.

 

Although many aspects of the earlier treaties were preserved, certain amendments were made. Advancements to technology, science, and banking were reflected in two new commercial treaties: the Treaty on International Commercial Law and the Treaty on International Commercial Navigation Law. The Treaty on International Penal Law was amended to include provisions on terrorism and piracy. The Treaty on Political Asylum and Refuge was a new treaty, which specified the conditions for a contracting state to grant refuge or asylum. The Treaty on International Procedural Law included further details about the procedure related to rogatory measures and included a section on the civil meeting of creditors. The Convention on the Exercise of the Liberal Professions outlined that degrees and diplomas awarded in one contracting state must be reasonably equivalent to the same degrees and diplomas in the contracting state where recognition is sought. The Treaty on Intellectual Property improved protection of literary and artistic property, and specified the categories of protected intellectual property. 

The Montevideo Treaties (1939–1940) are still widely used in Argentina, Paraguay, and Uruguay. These three countries have declared a willingness to preserve the Montevideo Treaties amongst themselves in practice. 

 

Bibliography

Margarita Argúas, ‘The Montevideo Treaties of 1889 and 1940 and their Influence on the Unification of Private International Law in South America’ in Maarten Bos (ed.), The Present State of International Law and Other Essays (Deventer: Kluwer Press, 1973) 345–60.

Wyndham A. Bewes, ‘The Treaties of Montevideo (1889)’, Transactions of the Grotius Society, 6 (1920) 59–79. 

Didier Opertti Badan and Cecilia Fresnedo de Aguirre, ‘The Latest Trends in Latin American Private International Law: The Uruguayan 2009 General Law on Private International Law’, Yearbook of Private International Law, 11 (2009) 305–37. 

Paul Pradier-Fodéré, ‘Le Congrès de Droit International Sud-Américain et les Traités de Montevideo’, Revue de Droit International et de Législation Comparée, 12 (1888) 516–21.

Ernst Rabel, ‘The Revision of the Treaties of Montevideo on the Law of Conflicts’, Michigan Law Review, 39 (1941) 517–25.

Friedrich Carl von Savigny, System of Modern Roman Law [System des heutigen Römischen Rechts] (tr. William Guthrie, Edinburgh: T & T Clark, 1869).

Manuel Adolfo Vieira, ‘Evolution du droit international privé en Amérique latine (1889-1960)’, Recueil des Cours de l’Académie de Droit International, 130 (1970) 393–418.