Edited by Jürgen Basedow, Giesela Rühl, Franco Ferrari and Pedro de Miguel Asensio
I. Sources of private international law
1. Main sources
Article 75(12) of the Argentine Constitution (enacted on 1 May 1853, available at <www.senado.gov.ar/deInteres>) lays down that the Congress’ competences include issuing the civil, commercial, criminal, mining, labour and social security codes, and also determines that federal and provincial courts are charged with the application of the codes, pursuant to their respective jurisdictions.
The traditional private international law system, which was in force from the end of the 19th century up to July 2015, was, in general, significantly influenced by the European legal tradition and was based on the continental European system, which finds its origins in Roman law. The origins of the rules on conflict of laws are to be found in German law through Savigny (→Savigny, Friedrich Carl von), in Anglo-Saxon law through Story (→Story, Joseph) and in Brazilian law through Freitas.
Up until July 2015, norms of private international law were dispersed among the Civil Code (enacted in 1869 by Law No 340 and promulgated on 1 January 1871, henceforth CC), the Commercial Code (promulgated on 1 May 1890) and several special laws. Nevertheless, the CC was the regulatory instrument that contained the major legislation on domestic private international law.
On 28 February 2011, a Reform Commission was appointed to draft a new and unified Civil and Commercial Code (henceforth CCC). The CCC Draft Bill, passed on 1 October 2014, was enacted on 7 October 2014 as Law No 26.994 and was published in the Official Bulletin on 8 October 2014. The New Code came into force on 1 August 2015. Title IV of the CCC is devoted to private international law and comprises 78 articles (arts 2591–2671 CCC), including general provisions, provisions on international jurisdiction and applicable law.
The 19th-century CC, in contrast, contained no regulation of private international law, but rather several norms specifically regulating international private relations with regard to particular subjects. Consequently the current situation of the autonomous private international law has changed due to its systematization in the new CCC, constituting a p. 1significant improvement over the previous code. Nevertheless, some dispersal of norms persists, in that rules regulating the enforcement of judgments were retained in the National Civil and Commercial Procedural Code (Código de Procedimiento Nacional en lo Civil y Comercial, text in force from 1973) and provincial procedural codes. Meanwhile special regulations also persist in the Commercial Company Law (No 19,550, Decree No 841/84, BO 30 March 1984), the Bankruptcy Law (No 24,522, enacted 20 July 1995), the Intellectual Property Law (No 11,723 BO 26 September 1933, modified by Law 25,036 BO 11 November 1998) and the Law on Immunity of Jurisdiction of Foreign States before Argentine Courts (No 24,488, enacted 31 May 1995).
Autonomous sources of private international law apply subsidiarily. As from the constitutional amendment of 1994, international treaties and conventions on integration prevail over domestic law. The new art 2594 CCC provides for the subsidiary character of Title IV of Book VI.
2. International conventions
Another significant change in the Argentine Constitution was made by incorporating human rights treaties into the constitutional framework (art 75(22) and (24) Constitution; →Human rights and Private International Law). These treaties, notably the UN Convention on the Rights of the Child of 20 November 1989 (1577 UNTS 3), the International Covenant on Civil and Political Rights of 16 December 1966 (999 UNTS 171; 1057 UNTS 407) and the United Nations Convention on the Elimination of Discrimination against Women of 18 December 19791 (249 UNTS 13) have significantly influenced Argentine private international law.
Argentina is party to numerous multilateral and bilateral treaties, which are applicable after ratification by the Argentine Congress; the provisions included in those treaties are considered to be part of domestic Argentine law (art 31 Constitution).
Treaties in force affect Argentine private international law in many ways. On the one hand, it must be emphasized that international treaties have supremacy over domestic laws. On the other hand, conventions update and modernize domestic private international law. Moreover, treaties cover gaps in domestic law. By drawing analogies, courts refer to international treaties ratified by Argentina even when these are not applicable to the particular case.
Starting in the late 19th century, Argentina actively participated in the development of private international law treaties. It participated at both the continental and the universal levels in global and in partial and progressive codification endeavours. Today, it is a contracting party to a number of conventions concluded within the framework of the UN. These include the UN Maintenance Convention 1956 (United Nations Convention of 20 June 1956 on the recovery abroad of maintenance, 268 UNTS 3 and 649 UNTS 330), the UN Convention on Consent to Marriage (United Nations Convention of 10 December 1962 on consent to marriage, minimum age for marriage and registration of marriages, 521 UNTS 231), the UNCITRAL Limitation Convention (Convention of 14 June 1974 on the limitation period in the international sale of goods, 1151 UNTS 3; 13 ILM 952), →CISG (United Nations Convention of 11 April 1980 on Contracts for the International Sale of Goods, 1489 UNTS 3), the Protocol of 11 April 1980 amending the Convention on the Limitation Period in the International Sale of Goods (Protocol of 11 April 1980 amending the Convention on the Limitation Period in the International Sale of Goods, 1511 UNTS 77) and the UN Convention on the Rights of the Child of 20 November 1989 (1577 UNTS 3).
Within the framework of the →Hague Conference on Private International Law, Argentina has ratified the following Conventions: the Hague Civil Procedure Convention (Hague Convention of 1 March 1954 on civil procedure, 286 UNTS 265); the Hague Legalisation Convention (Hague Convention of 5 October 1961 abolishing the requirement of legalisation for foreign public documents, 527 UNTS 189); the Hague Service Convention (Hague Convention of 15 November 1965 on the service abroad of judicial and extrajudicial documents in civil or commercial matters, 658 UNTS 163); the Hague Evidence Convention (Hague Convention of 18 March 1970 on the taking of evidence abroad in civil or commercial matters, 847 UNTS 241); the Hague Agency Convention (Hague Convention of 14 March 1978 on the law applicable to agency, Hague Conference of Private International Law (ed), Collection of Conventions (1951–2009) (Intersentia 2009) 268); the Hague Child Abduction Convention (Hague Convention of 25 October 1980 on the civil aspects of international p. 1child abduction, 1343 UNTS 89); and the Hague Convention of 22 December 1986 on the law applicable to contracts for the international sale of goods (510 UNTS 147).
Argentina is also a contracting party to numerous Conventions concluded within the framework of the →CIDIP. Among the Conventions developed throughout the Conferences held, Argentina has ratified the following: CIDIP I, 1975: the Inter-American Arbitration Convention (Inter-American Convention of 30 January 1975 on international commercial arbitration, 1438 UNTS 249); the Inter-American Bills of Exchange Convention (Inter-American Convention of 30 January 1975 on conflict of laws concerning bills of exchange, promissory notes and invoices, OAS, Treaty Series, No 40; 1438 UNTS 211); the Inter-American Letters Rogatory Convention (Inter-American Convention of 30 January 1975 on letters rogatory, 1438 UNTS 283); the Inter-American Taking of Evidence Abroad Convention (Inter-American Convention of 30 January 1975 on the taking of evidence abroad, 1438 UNTS 385); the Inter-American Powers of Attorney Convention (Inter-American Convention of 30 January 1975 on the legal regime of powers of attorney to be used abroad, 1438 UNTS 263); CIDIP II, 1979: the Inter-American Commercial Companies Convention (Inter-American Convention of 8 May 1979 on conflicts of laws concerning commercial companies, 1439 UNTS 26); the Inter-American Preventive Measures Convention (Inter-American Convention of 8 May 1979 on execution of preventive measures, OAS, Treaty Series, No 52); the Inter-American Private International Law Convention (Inter-American Convention on general rules of private international law, 1457 UNTS 3); the Inter-American Foreign Law Convention (Inter-American Convention of 8 May 1979 on proof of and information on foreign law, 1439 UNTS 111); the Inter-American Foreign Judgments and Arbitral Awards Convention (Inter-American Convention of 8 May 1979 on extraterritorial validity of foreign judgments and arbitral awards, 1439 UNTS 91); Additional Protocol to the Inter-American Letters Rogatory Convention (Additional Protocol of 8 May 1979 to the Inter-American Convention on letters rogatory, OAS, Treaty Series, No 56; 1438 UNTS 283); CIDIP III, 1984: Additional Protocol to the Inter-American Taking of Evidence Abroad Convention (Additional Protocol of 24 May 1984 to the Inter-American Convention on the taking of evidence abroad, OAS, Treaty Series, No 65; 24 ILM 472); CIDIP IV, 1989: the Inter-American Support Obligations Convention (Inter-American Convention on support obligations of 15 July 1989, 29 ILM 73); the Inter-American Return of Children Convention (Inter-American Convention on international return of children of 15 July 1989, OAS, Treaty Series, No 70; 19 ILM 63); CIDIP V, 1994: the Inter-American Traffic in Minors Convention (Inter-American Convention of 17 March 1994 on international traffic in minors, OAS, Treaty Series, No 79).
Additionally, Argentina is party to the so-called Treaties of Montevideo (TMs) of 1888/1889, namely: the Additional Protocol to the Treaties on Private International Law, the Treaty on International Civil Law, the Treaty on International Commercial Law, the Treaty on International Procedural Law, the Treaty on International Criminal Law, the Treaty on Patent Law, the Treaty on Literary and Artistic Works, the Treaty on Trademark & Industrial Design and the Convention on Free Exercise of Pertinent Activities and Professions (all implemented by Law 3,192).
Fifty years later, another meeting was held in Montevideo to update the treaties of 1889. Of the work carried out, Argentina ratified the following Treaties of Montevideo of 1940: the Additional Protocol to the Treaties on Private International Law, the Amendments to the Treaty on International Civil Law, the Treaty on International Commercial Navigation Law, the Amendments to the Treaty on International Civil Law, the Amendments to the Treaty on International Commercial Law, the Amendments to the Treaty on International Procedural Law, the Convention on Free Exercise of Pertinent Activities and Professions, and the Treaty on Intellectual Property (all ratified by executive order 7,771/56, BO 8 May 1956).
Furthermore, Argentina ratified numerous bilateral agreements. We enumerate below a non-exhaustive list of private international law treaties currently in force in Argentina. With Brazil: the Treaty for Establishment of Bylaws for Argentine/Brazilian Bi-national Companies (Law 23,935, BO 22 May 1991); with Chile: the Convention on Letters Rogatory (Law 15,989, BO 28 November 1961) and the Convention Abolishing Consular Legalization Authorizing Minors from Trans-border Travel (Law 24,851 BO 17 July 2007); with China: the Agreement to Promote Bi-national Companies (Law 24,096, p. 1BO 10 July 1992); with France: the Convention on Judicial Cooperation (Law 24,107, BO 04/08/92); with Italy: the Convention on Judicial Assistance and the Recognition and the Enforcement of Judgments in Civil Matters (Law 23,720, BO 23 October 1989) and the Convention on the Exchange of Certificates on Civil Status and on the Waiver of the Legalization of Documents (Law 23,728, BO 23 October 1989); with Uruguay: the Convention on Trial Procedures and Letters Rogatory (Law 22,410, BO 6 March 1981), the Convention on the Application of Foreign Law (Law 22,411, BO 6 March 1981), the Convention on the International Protection of Children (Law 22,546, BO 4 March 1982) and the Convention on Legal Cooperation (Law 22,547, BO 4 March 1982),
3. The integration process
Another essential aspect that should be highlighted in relation to the sources of private international law is Argentina’s membership of MERCOSUR.
Conventions of private international law have been ratified within this framework of regional union (the existing Treaties of MERCOSUR may be consulted at <www.mre.gov.py>). Many conventions are enforceable in its Member States and the associated states of Bolivia and Chile. The following are of interest: the Las Leñas Protocol of 27 June 1992 on Judicial Cooperation and Assistance in Civil, Commercial, Labour and Administrative Matters (2145 UNTS 421; MERCOSUR/CMC/DEC No 5/92; Argentina: Law 24,578, BO 27 November 1995); MERCOSUR/CMC/DEC No 5/97 Complementary Agreement to the Protocol on Judicial Cooperation and Assistance in Civil, Commercial, Labour and Administrative Matters (Law 25,222, BO 4 January 2000); MERCOSUR/CMC/DEC No 07/02 Amendment to the Protocol on Judicial Cooperation and Assistance in Civil, Commercial, Labour and Administrative Matters (signed on 5 July 2002; Argentina: Law 25,934, BO 4 October 2004); MERCOSUR/CMC/DEC No 11/94 Protocol on the Promotion and Protection of Investment Proceeding from Non-member Countries of the MERCOSUR (signed on 5 August 1994; Argentina: Law 24,554, BO 18 October 1995); MERCOSUR/CMC/DEC No 1/94 Protocol of Buenos Aires on International Jurisdiction in Contractual Matters (signed on 5 August 1994; Argentina: Law 24,669, BO 2 August 1996); MERCOSUR/CMC/DEC No 27/94 Protocol on Precautionary Measures (signed on 16 December 1994; Argentina: Law 24,579, BO 27 November 1995); MERCOSUR/CMC/DEC No 1/96 Protocol of San Luis on Civil Liability Resulting from Traffic Accidents between Member States of MERCOSUR (signed on 25 June 1996; Argentina: Law 25,407, BO 9 April 2001); MERCOSUR/CMC/DEC No 6/97 Errata to the Protocol on Civil Liability Resulting from Traffic Accidents between Member States of MERCOSUR; MERCOSUR/CMC/DEC No 3/98 Agreement on Commercial Arbitration of MERCOSUR (signed on 23 July 1998; Argentina: Law 25, 223, BO 5 January 2000); MERCOSUR/CMC/DEC No 4/98 Agreement on International Commercial Arbitration between MERCOSUR and Bolivia and Chile (signed on 23 July 1998; Argentina: Law 25,223, BO 5 January 2000); MERCOSUR/CMC/DEC No 13/97 Protocol of Montevideo on Trade in Services of MERCOSUR (signed on 15 December 1997; Argentina: Law 25,623, BO 15 August 2002); MERCOSUR/CMC/DEC No 9/98 Protocol of Montevideo on Trade in Services of MERCOSUR; and Sector Annexes to the Montevideo Protocol on Trade in Services of MERCOSUR.
4. The role of case-law
Argentina is a civil law jurisdiction and jurisprudence is not regarded as a formal source of private international law, so that judicial precedent is not formally a binding source of legal rules. However, jurisprudence is a material source for the interpretation of laws and treaties. Therefore, important rulings rendered mainly by the Corte Suprema de Justicia de la Nación Argentina (Argentine National Supreme Court) are carefully studied and generally followed. Similarly, judge-made law plays an important role in private international law because statutory law is far from comprehensive. Case-law has therefore been relevant in modifying the archaic CC rules and has been used to fill gaps in legal provisions.
As a result, even though judges are not bound to follow precedents, in practice they do so in most cases. In certain situations, if there is no statutory law to follow, the courts have developed a significant body of case-law through numerous precedents applying general principles of law. As a case in point, the court used p. 1precedent to rule on issues regarding conditions for the application of foreign law (JNCiv No 29, 1 April 1986, Gómez, Carlos L. s/ sucesión, LL 1987-A-339; →Foreign law, application and ascertainment).
5. The role of custom and usage
The CCC recognizes that custom and usage cannot create rights unless statutes refer to the custom or the situation is not regulated by legislation. However, this principle is nuanced to a degree, and custom may be a significant source of private international law in certain circumstances. For example, the Commercial Code (Código de Comercio, henceforth CCom) established that business custom could be used as a guideline to establish the meaning of technical words and to interpret business deals.
6. The role of scholarly writing
Scholarly writing is not a formal source of law and lacks binding force. However, it plays a role in private international law because Argentine courts have a high regard for legal doctrine developed by scholars. Court decisions tend to include references to the academic writings of law professors. Recently, doctrinal writings and scholars had influence on the legislature when drafting the private international law for the new CCC.
II. History and development of private international law
Argentina’s Constitution, adopted in 1853, has been amended on many occasions. Federal codes are enacted within its framework. The CC was drafted by Dalmacio Velez Sársfield, an eminent lawyer in his day, and it was the regulatory body that contained what may be described as the core of domestic private international law.
In 1927, shortly after the enactment of the CC, the First National Congress of Civil Law took place and a draft of law reform in the area of private international law was presented. This project resulted from the need to respond to the changes experienced after the enactment of the CC. Pursuant to ideas adopted in the Second National Congress of Civil Law (1937), a structural approach revived the tendency towards a reform of the Civil Code, which this time would provide legislative autonomy to private international law.
Several amendments were made to the CC and on occasions these resulted from the pressure exerted by politically, commercially and internationally sensitive situations. Although it was a progressive work 140 years ago, the CC was overtaken by developments that rendered it inadequate for today’s problems. Further successive reforms had a divisive effect by tending to fracture the required unity of the legislative system.
In 1952, Werner Goldschmidt (→Goldschmidt, Werner) published the first edition of his ‘Bases de un Anteproyecto de Codificación del Derecho Internacional Privado’ (Principles for a Draft of a Private International Law Code). He introduced a unique impulse to private international law methodology in Argentina during the second half of the 20th century. While not affecting the existing provisions, the so-called ‘indirect technique’ was adopted from the methodology of private international law by focusing on the analysis of its problems and the particular structure of its rules.
The Third National Congress of Civil Law held in Córdoba witnessed an intense debate on the opportunity to develop autonomous private international law legislation. This idea met with concerted resistance and with criticism where on the one hand, such codification could endanger the integrity of the Civil Law, while on the other hand, the Argentine Congress could have no authority to enact a special law in that area. It was ultimately recommended that ‘experts should work towards systematizing private international law within the Civil Code, as a preliminary title’.
As a reporter to the Seventh Congress of Instituto Hispano Luso Americano de Derecho Internacional (Spanish-Portuguese-American Institute of International Law, IHLADI), Goldschmidt presented an ‘exposé de motifs and basic standards for a uniform law, normative unifying treaty, or model law of private international law’. Years later, in 1973, the Asociación Argentina de Derecho Internacional (Argentine Association of International Law, AADI) asked Goldschmidt to submit a new work based on the one developed for IHLADI. Goldschmidt’s work is marked by the distinction he draws between projects concerning the law applicable to private international law relationships and projects concerning the jurisdiction and scope of international procedural law. Congress did not approve these projects.
During the late 20th century, a special commission was appointed to work on a comprehensive reform of the CC. However, to modify private p. 1international law, the Ministry of Justice and Human Rights appointed a sub-committee of experts to develop a project known as the 2003 Code of Private International Law, which failed to gain Congressional approval.
Years later, the Executive issued Decree 191/2011, which created the committee for the development of the Draft Bill for reforming, updating and unifying the Civil Code and the Commercial Code of the nation. For this purpose, it appointed a Reform Committee comprising jurists Ricardo Lorenzetti, Elena Highton and Aida Kemelmajer. In order to carry out this task, they formed groups based on various topics according to their expertise. Adriana Dreyzin Klor, Marcelo Iñiguez, María S Najurieta and María E Uzal were invited to collaborate on the private international law regulations.
The private international law rules are grouped under Title IV: Provisions of Private International Law, of the Sixth Book of the new CCC entitled ‘Of the provisions common to personal and property rights’. The new CCC addresses two of the topic’s three sectors. The team of jurists working on drawing up the rules submitted the project including the three sectors. The Reform Committee understood that the chapter referring to the recognition and enforcement of foreign judgments should not be included in the project. Therefore, Title IV contains three chapters, which refer to: (i) general provisions; (ii) international jurisdiction; and (iii) special cases.
III. Administration of private international law
Argentina has no courts specializing in private international law matters. Both the federal jurisdiction and the provincial judicial system are divided by subject matter and personal jurisdiction. In the field of private international law, it is interesting to note that judges whose jurisdiction is civil or commercial matters hear claims generated in these areas. Both systems (the federal and the provincial judiciary systems) are divided into first and second judicial bodies, with Supreme Courts in the provinces and the Supreme Court of Justice of the nation as a court of last resort.
2. Application of foreign law
According to traditional domestic private international law (art 13 CC), judges may not apply foreign law of their own motion. Nevertheless, the evolution of Argentine jurisprudence has accepted the application of foreign law of the court’s own motion (→Foreign law, application and ascertainment), although in the final years of the 20th century, there were cases in which judges considered that the interested party had failed to establish foreign law.
When a foreign law is applicable:
the judge determines the content of foreign law, and is obliged to interpret it as the judges from the state to which that law belongs would do, without prejudice to the parties’ right to allege and prove the existence of the claimed law. If the content of the foreign law cannot be established, Argentine law applies;
if there are several legal systems in force with territorial or personal jurisdiction, or different legal systems are succeeded, the applicable law is determined by the rules in force within the state to which that law belongs, and absent such rules, by the legal system with the closest connection to the legal relation at issue;
if different laws are applicable to different aspects of a same legal relation or to different legal relations encompassed in a single case, those laws must be harmonized by endeavouring to effect the necessary adaptations in order to respect the purposes intended by each of the laws.
IV. Basic principles of jurisdiction
1. General structure
The right to obtain effective protection from judges and courts is a guiding principle of Argentine law. Furthermore, procedural law exists to provide effective protection of rights and legitimate interests through the judicial system. However, beyond a procedural principle, access to justice is a substantive principle included in the new CCC in a section before the jurisdiction rules established in Title III.
Predictability of the competent court is a basic principle of the system that complements the principles of legality and of effective protection through judges and courts. Due process is realized through access to justice and consequently upholds the principle of the guarantee of justice, granting jurisdiction to Argentine p. 1courts even in cases that are not expressly covered by statutory law.
Argentine courts lack jurisdiction over certain cases and have concurrent jurisdiction in other cases, while in other cases the Argentine jurisdiction will be exclusive. Nevertheless, national judges can assume jurisdiction in exceptional cases, protecting the effective exercise of the right of self-defence and granting access to justice.
Another notable new rule of international jurisdiction is the principle of effectiveness of decisions. The scope and extent of Argentina’s jurisdiction – concurrent or exclusive – will determine the recognition and enforcement of foreign judgments.
Domicile forum has traditionally been highly relevant because in a considerable number of fields, it is established as a unique or alternative ground for international jurisdiction. As a matter of principle, Argentine courts have jurisdiction when the defendant is domiciled in Argentina or the obligation has to be performed in Argentina. In addition, Argentine courts may hear a case when parties opt for the jurisdiction of Argentine courts (cf art 1 National Civil and Commercial Procedural Code and art 2605 CCC).
At another level, only the Argentine judiciary has jurisdiction over actions regarding →immovable property located in Argentina. The CCC, in the title on international jurisdiction, addresses the principle of access to justice, rules relating to jurisdiction regarding →provisional measures, the lis pendens rule (→Lis alibi pendens), the exclusive nature of choice of forum agreements (→Choice of forum and submission to jurisdiction), the defendant’s domicile or habitual residence (→Domicile, habitual residence and establishment) as an international jurisdiction forum, and the equal treatment of citizens and foreign residents before the law, while a rule is being incorporated on international judicial cooperation. Chapter III includes 16 sections with special jurisdiction rules.
Regarding international contracts, Argentina has expressly incorporated in the new CCC the possibility of extending the jurisdiction to courts of the parties’ choice (art 2650 CCC). However, absent a valid choice-of-forum agreement, jurisdiction in contract disputes is granted at the claimant’s choice to: (a) the judges of the domicile or habitual residence of the defendant, or, if there were several defendants, the judges of the domicile or habitual residence of any of them; (b) the judges of the →place of performance of any of the →contractual obligations; or (c) the judges of the place where an agency, branch or representative of the defendant is located, as long as it has participated in the negotiation or conclusion of the contract (art 2650 CCC). In contractual matters regarding personal property-related legal proceedings, an extension of the jurisdiction is admitted under the conditions laid down by the National Civil and Commercial Procedural Code in arts 1 and 2.
In non-contractual obligations, emphasis is given to the place where damages occur, where interests are located or where rights are violated. Therefore, in tort cases jurisdiction is vested with the courts at the place where the effects of the obligation occur.
In proceedings regarding the existence of civil liability, jurisdiction is vested with the courts: (a) at the defendant’s domicile; and (b) at the place where the event giving rise to the damage took place or where it causes its direct damaging effects (art 2656 CCC).
3. Property rights
According to standing legislation, courts of the state in which the immovable property is located have jurisdiction in proceedings on the property (art 2664 CCC; →Property and proprietary rights). As regards movable property, Argentine courts assume jurisdiction if the defendant is domiciled in the country or if the movable property is permanently located in Argentina. Jurisdiction concerning claims filed over registrable assets is granted to the courts of the state where these assets were registered. On the other hand, regarding the property actions over non-registrable assets, the competent courts are those of the defendant’s domicile or those of the place where the assets are located.
Rules relating to corporations are found in the Commercial Company Law No 19,550. However, this law contains no rules on international jurisdiction. Resorting to the forum causae, proceedings must be brought in the country whose law governs the corporation.
p. 1Consequently, according to art 118 Commercial Company Law, courts in the place where the company was incorporated have jurisdiction to settle disputes (→Companies). Likewise, the application by analogy of internal rules has been admitted, as well as provisions of the Treaty on International Commercial Law (Law 3,192).
International jurisdiction rules on insolvency (→Insolvency, jurisdiction and vis attractiva) matters are contained in Law No 24. 522, as amended, and in related provisions. International jurisdiction is generally accorded to courts at the debtor’s domicile (art 3; →Domicile, habitual residence and establishment). Debtors domiciled in or with administrative headquarters in Argentina and debtors with foreign domicile can enter into preventive →remedies before domestic courts regarding property located in the country. ‘Debtor’ comprises all physical or private legal persons, corporations where Argentina is a partner, and the patrimony of deceased individuals provided that it can be separated from the patrimony of heirs. The law provides that if debtors undertake preventive remedies in foreign countries, they may also initiate preventive remedies in Argentina. In these cases, debtors or local creditors must submit petitions in Argentina. Argentina will therefore recognize the initiation of foreign preventive remedies abroad as a cause for petition in the country.
5. Family matters
Family matters cover numerous legal situations which are governed by various jurisdictional provisions of the CCC. Proceedings for personal separation and the dissolution of →marriage and those relating to the effects of marriage must be brought before the court of the last known effective marital domicile or before the court of the defendant’s domicile (art 2621 CCC). Proceedings arising from a cohabitation union must be brought before the judge of the effective common domicile of the persons who are party to it or the domicile or habitual residence (→Domicile, habitual residence and establishment) of the defendant (art 2627 CCC).
With regard to jurisdiction, the CCC establishes several options for filing claims, recognizing competence for: (i) the courts of marital separation, divorce or annulment; (ii) the plaintiff’s choice for the court of the spouses’ domicile; (iii) the defendant’s domicile; (iv) the creditor’s habitual residence; (v) courts at the location of obligation; and (vi) courts located where the support agreement was entered into, provided it is available and it coincides with the defendant’s residence.
Proceedings for maintenance must be brought, as elected by the claimant, before the judges of his domicile or his habitual residence, or before the domicile or habitual residence of the defendant (art 2629, sentence 1 CCC). Furthermore, if it is reasonable in the overall circumstances of the case, the proceedings may be brought before the judges of the place where the defendant has assets (art 2629, sentence 2 CCC). Between spouses or cohabitants, maintenance proceedings must be brought before the judge of the last marital or cohabitation domicile, the domicile or habitual residence of the defendant, or before the judge who entertained the dissolution of the union (art 2629, sentence 3 CCC). Where an agreement was previously concluded, at the claimant’s election, proceedings may also be brought before the courts of the place where the obligation is to be performed or before the place of conclusion of such agreement if that place is also the defendant’s domicile (art 2629, sentence 4 CCC).
The CC did not include international rules or provisions regarding filial relationships or the establishment of a parent–child relationship; consequently, the gap was solved by both the Treaty on International Civil Law (Law 3,192, 1889) and the Additional Protocol to the Treaties on Private International Law. However, the CCC addresses the topic of filial relationships in section 5, covering the natural filial relationships or filial relationships by assisted reproduction techniques. According to art 2631 CCC, the competent courts in proceedings regarding the establishment or contesting of a parent–child relationship will be, at the plaintiff’s election, those of the domicile of the person pleading the filiation or those of the domicile of the progenitor or alleged progenitor. In the case of recognition, the competent judges are those of the domicile of the recognizing person, those of the domicile of the son or daughter, or those of the place of his birth.
In the new CCC, regarding the children with domicile in Argentina: ‘Argentine judges have exclusive jurisdiction for the decision on the guardianship for the purposes of adoption and for granting an adoption’ (art 2635, sentence 1 p. 1CCC; →Guardianship, custody and parental responsibility). According to the same section, jurisdiction for the annulment or revocation of an →adoption is vested with the judges of the place where the adoption was granted or those of the domicile of the adopted person (art 2635, sentence 2 CCC).
The general rule in this matter has traditionally granted jurisdiction to the courts of the last domicile of the deceased person. The CCC provides an additional option in the case of immovable assets located in the Argentinian Republic. The judges of the place where the real estate assets are located have jurisdiction to entertain cases of inheritance (art 2643 CCC).
V. Basic principles of choice of law
1. General provisions
Conflict rules form the basis of Argentine →choice-of-law methodology. Most of these rules are multilateral, but some are unilateral (→Unilateralism). Domicile is the most relevant →connecting factor in Argentina. The principle mainly aims to impose the application of domestic law within the national territory (arts 2615, 2616 and 2617 CCC). The intense immigration to Argentina from Europe and other countries during the period in which the CC was drafted provided a significant sociological factor.
Traditionally, Argentine autonomous private international law had no rules governing choice of law by parties in international contracts. In contrast, the new CCC expressly includes a provision on →party autonomy in international contracts, establishing that contracts will be governed by the law chosen by the parties (art 2651 CCC). The choice must be express or result in a certain and evident manner from the terms of the contract or from the circumstances of the case. The choice can refer to the contract in its entirety or to parts of it.
The exercise of the right to choose the applicable law is subject to the following rules: (a) at any moment, the parties may agree on the contract being governed by a law different from the one which governed it as a result of a previous choice or of the application of other provisions of this Code – however, this modification may not affect the validity of the original contract or the rights of third parties; (b) once the application of a national law is chosen, the domestic law of that state must be deemed chosen, excluding its conflict-of-laws rules, absent agreement to the contrary; (c) the parties may determine by mutual agreement the substance of their contracts and even create contractual provisions which displace mandatory norms of the chosen law; (d) the generally accepted commercial usages and practices, the customs and principles of international commercial law, are applicable when the parties have incorporated them into the contract; (e) public policy principles and the internationally mandatory norms of Argentine law are applied to the legal relationship, whichever law governs the contract – in principle, the internationally mandatory norms of those states with preponderant economic connections with the case also prevail over the contract; (f) contracts concluded in Argentina which violate internationally mandatory norms of a foreign nation whose application is necessary to the case have no effect; (g) the choice of a specific national forum does not entail a choice in favour of the applicable law of that state. The last paragraph of art 2651 CCC emphasizes that this article does not apply to →consumer contracts.
Absent a choice by the parties on the applicable law, the contract is governed by the laws and usages of the state of the →place of performance (art 2652, sentence 1 CCC). If there is no place of performance stipulated in the contract or it cannot be determined according to the nature of the relationship, the place of performance is the present domicile of the party required to perform the most characteristic obligation of the contract (art 2652, sentence 2 CCC). If it is impossible to determine the place of performance, the contract will be governed by the usages and laws prevailing in the state where it was concluded (art 2652, sentence 3 CCC). The conclusion of contracts between distant parties is governed by the law of the place from which the accepted offer was made (art 2652 CCC).
Furthermore, an exception clause has been included in art 2653 CCC. According to this provision, the judge is authorized, at the request of a party, and taking into account all of the objective and subjective elements which can be inferred from the contract, to apply the law of the state with which the legal relationship has the closest connections. However, this provision p. 1may not be applied when the parties had already chosen the law that is applicable to the case.
Under the new CCC, the forms and formalities of legal acts, their validity or nullity and the requirements of public record and notice are decided according to the laws and usages of the place where the acts are concluded, performed or executed (art 2649, sentence 1 CCC). When the law applicable to the substance of the legal relationship requires a certain formality, the equivalence between the required form and the executed form must be determined according to that law (art 2649, sentence 2 CCC). If the contracting parties are in different states at the moment of the conclusion of the contract, the formal validity of the contract is governed by the law of the country from where the accepted offer is made or, alternatively, by the law applicable to the merits of the legal relationship (art 2649, sentence 3 CCC).
For non-contractual obligations, there were no provisions in autonomous private international law. Now with the new CCC in the case of an obligation arising from civil liability, the applicable law will be the law of the country where the damage is caused, irrespective of the country where the event giving rise to the damage occurred and whichever the country or countries sustaining the indirect consequences of the event are (art 2657, sentence 1 CCC). However, if the person whose liability is alleged and the person sustaining the damage have their domicile in the same country at the moment at which the damage took place, the law of that country applies (art 2657, sentence 2 CCC).
3. Property rights
Property rights over immovable assets are governed by the law of the state where they are located (art 2667, sentence 1 CCC). Thus, it is determined that contracts concluded in a foreign country with the purpose of transferring property rights over immovable assets situated in Argentina have the same executory force as those concluded in Argentina, provided they are formalized in a public instrument and are legalized (art 2667, sentence 2 CCC).
In the case of registered assets, property rights are governed by the law of the state of registry (art 2668 CCC). For assets which are intended for permanent location and which are kept with no intention to move them, the relevant property rights are governed by the law of the place of location at the moment of the events upon which the acquisition, modification, transformation or extinction of such rights is based (art 2669, sentence 1 CCC). Therefore, the movement of these assets does not affect the rights which have been validly created under the rule of the previous law (art 2669, sentence CCC). Movable assets lacking permanent location or those which are for the owner’s personal use, irrespective of whether he is at his domicile, as well as those that are owned to be sold or moved to another place, are governed by the law of the owner’s domicile (art 2670, sentence 1 CCC). If ownership is disputed or unknown, the law of the place of their location applies (art 2670, sentence 2 CCC).
Argentine autonomous private international law provides choice-of-law rules for corporations incorporated in foreign states. These juridical persons are regulated in a special law (Commercial Company Law 19,550 Amendments & Conc., Section XV, under the title ‘On Companies Incorporated Abroad’).
The lex societatis is the law of the state of incorporation of the company. This law governs existence and types of →companies. Foreign companies may perform isolated acts of commerce in Argentina (art 118 Commercial Company Law). However, foreign companies must comply with a series of formalities if they intend to act on a regular basis. In addition, foreign companies must comply with the provisions of the Commercial Company Law if they intend to establish a branch, agency or any other means of permanent representation. Choice-of-law rules provide answers to cases of incorporation in foreign countries pursuant to types of companies unknown in Argentina. In those cases, the judges must establish the requirements matching them with the highest standards provided in the Argentine legislation.
5. Intellectual property
Intellectual property matters are governed by Law 11,723, its modifications and amendments. Article 12 states that intellectual property is governed by the provisions of the civil and commercial law, according to the limits and conditions provided in the rules of the Intellectual Property Law. In addition, the Intellectual Property Law rules on foreign works of art can be summarized as follows:
p. 1protection of literary works published abroad should be recognized in Argentina without distinguishing the →nationality of the author, provided they originate from a state that recognizes intellectual property rights;
to enjoy the benefits of the law, authors of foreign works must give proof of performance of formalities in the country in which the publication was originally made.
Argentine Patent Law 24,481 (1995), amended by Law 24,572 (1996), states that physical persons or national or foreign juridical persons can obtain the protection of intellectual property rights if they establish a particular domicile in Argentina for that legal purpose.
6. Family matters
Matters relating to family relationships in the international order were regulated by rules in the CC and by special laws (art 159 CC; art 2 Law 23,515).
In Argentina, Law 26,618 (2010), which modified the Civil Code, allows →marriage between people of the same sex. Therefore, →public policy was modified and marriages entered into abroad between persons of the same sex and same-sex civil partnerships are now recognized in the Argentine Republic (→Registered partnerships, →Same-sex marriages).
In the new legislation, the capacity of persons to marry (→Capacity and emancipation), the form of the celebration, and its existence and validity are governed by the law of the place of celebration, even if the parties have left their domicile in order not to be subject to the laws in force in that place (art 2622, sentence 1 CCC). No marriage celebrated abroad will be recognized if it is affected by any of the impediments set forth in art 575, second paragraph and art 403, including a), b), c), d) and e) (art 2622, sentence 2 CCC). These impediments make reference to the use of eggs or sperm of third parties in human-assisted reproduction techniques, relationships, affinity, and previous subsistent marriage, condemnation as author, accomplice or instigator of the deliberated murder of one of the spouses. The law of the place of celebration governs proof of the existence of the marriage (art 2622, sentence 3 CCC).
Furthermore, it is provided that the personal relationship between spouses is governed by the law of their effective marital domicile (art 2624 CCC). The relationship between spouses regarding the assets is governed by the marital contract (art 2625, sentence 1 CCC). This contract is governed by the law of the first marital domicile. The contract celebrated after the marriage is governed by the law of the spouses’ domicile at the time of the celebration of the contract (art 2625, sentence 2 CCC). When there is no marital contract, assets are governed by the law of the first marital domicile, except in those cases where property rights are strictly governed by the law of the country where the assets are located. When spouses move to Argentina, the spouses may document in a public deed their choice in favour of the application of Argentine law. The exercise of this right may not affect the rights of third parties (art 2625, sentence 3 CCC).
Cohabitation unions are governed by the law of the state in which the union is intended to be alleged (art 2628 CCC).
Furthermore, the CCC states that maintenance is governed by the law of the domicile of the maintenance creditor or the maintenance debtor, whichever the competent authority finds more favourable to the interests of the maintenance creditor (art 2630, sentence 1 CCC). In the same way, the maintenance agreements are governed, as elected by the parties, by the law of the domicile or habitual residence of either one of them at the time of the conclusion of the agreement. Otherwise, the law governing the maintenance will be applied (art 2630, sentence 2 CCC). Between spouses or cohabitants, maintenance is governed by the law of the last marital domicile, the last effective cohabitation or the state whose law is applicable to the dissolution or nullity of the union (art 2630 sentence 3 CCC).
Annulment of marriage is governed by the same law that determines its validity. It may be requested if any of the impediments that violate ordre public are encountered. Argentine marriage law includes a conflict rule that indicates that ‘divorce and other causes of dissolution of marriage are governed by the law of the last domicile of the spouses’ (art 2626 CCC) (→Divorce and personal separation).
Regarding filial relationships by natural or assisted reproduction techniques, the CCC provides that both the establishment of a parent–child relationship and its contestation are governed by the law of the child’s domicile at the time of birth, or by the law of the progenitor’s or alleged progenitor’s domicile at the time of the child’s birth, or by the law of the place where the marriage is celebrated, whichever is more favourable for the fundamental rights of the child (art 2632, sentence 1 CCC). The applicable p. 1law according to this norm determines the active and passive standing for the conduct of proceedings and the term to file the claim, as well as the requirements and effects of having a civil status (art 2632, sentence 2 CCC).
In the case of recognition of a child, the conditions for recognition are governed by the law of the child’s domicile at the time of birth or at the time of the act, or the law of the recognizing person’s domicile at the time of the act (art 2633, sentence 1 CCC). The capacity of the recognizing person is governed by the law of his or her domicile (art 2633, sentence 2 CCC). The form of that recognition is governed by the law of the place where the act of recognition was entered into or by the law governing the substance (art 2633, sentence 3 CCC).
In the case of →adoption, the requirements and effects of the adoption are governed by the law of the adoptee’s domicile at the time the adoption is granted (art 2636, sentence 1 CCC). The annulment or revocation of the adoption is governed by the law pursuant to which it was granted or by the law of the domicile of the adopted person (art 2636, sentence 2 CCC).
→Succession mortis causae in the new CCC is governed by the law of the domicile of the deceased person at the time of death (art 2644, sentence 1 CCC). Notwithstanding, concerning the immovable assets located in the country, Argentine law will be applied (art 2644, sentence 2 CCC).
Regarding a will drawn up abroad, it is valid in Argentina according to the form required by the law of the place of conclusion of , by the law of the domicile, the habitual residence, or of the nationality of the testator at the moment of the conclusion of the will or by the Argentine legal formalities (art 2645 CCC). The nationality of individuals is irrelevant under the Argentine private international law of succession. The intention of the legislature, as reflected by the wording of the rule, is to prioritize the validity of a will.
The capacity to conclude and revoke a will is governed by the law of the testator’s domicile at the time of performing such an act (art 2647 CCC).
VI. Recognition and enforcement of judgments
The National Civil and Commercial Procedural Code devotes a chapter to foreign judgments and arbitration awards (Book II, Title I, Chapter II. I). As a general rule, decisions by foreign courts will be enforceable according to the provisions of international treaties that Argentina has concluded with the states of origin of the decisions. If there are no treaties in force between the country of origin and Argentina, foreign judgments will be enforced under the following conditions: (i) the foreign decision must be a final judgment in the state where it was rendered; (ii) the decision must be rendered by a competent court pursuant to the Argentine provisions on international jurisdiction; (iii) the decision must result from personal actions or real actions on movables; (iv) the defendant must be personally subpoenaed and be granted legitimate defence; (v) the decision must comply with foreign requirements on validity and with requirements of authenticity pursuant to Argentine law; (vi) the decision does not conflict with an Argentine decision, either previous or contemporaneous; and (vii) the decision does not contravene the principles of Argentine ordre public.
To comply with the requirements of recognition of foreign decisions and arbitral awards, interested parties must submit before the lower courts in Argentina legalized and translated copies of the decisions. In addition, the parties must submit evidence that the judgment is enforceable in the state of origin, together with evidence of compliance with all other requirements if they are not contained in the decisions. If foreign decisions may be enforced in Argentina, the enforcement procedure as such is the same as for decisions rendered by Argentine courts. When the authority of a foreign decision is claimed in Argentina, it will ‘only be enforceable’ if it complies with the above-mentioned requirements.
Argentine domestic law includes provisions on commercial arbitration in the National Civil and Commercial Procedural Code (arts 736–773) and in the various provincial procedural codes. Among the many provisions on domestic arbitration are to be found rules on the object of claims, matters that exceed the scope of arbitration, capacity, form of agreements, contents, non-mandatory clauses on appointment of arbitrators, and acceptance of appointments.
Antonio Boggiano, Derecho Internacional Privado (5th edn, Abeledo Perrot 2006);
Adriana Dreyzin de Klor, ‘Análisis exegético de las normas de Derecho internacional privado del Código Civil y Comercial, en Código Civil y Comercial de la Nación Comentado’ in Ricardo Luis Lorenzetti, Adriana Dreyzin de Klor and T Saracho Cornet (eds), Trámites judiciales internacionales (Zavalía 2005);
Adriana Dreyzin de Klor, Private International Law in Argentina (Wolters Kluwer Law & Business 2011);
Sara Feldstein de Cardenas, Derecho internacional privado y de la integración (La Ley 2007);
Werner Goldschmidt, Derecho Internacional Privado. Derecho de la Tolerancia (10th edn, updated by Alicia Peruggini Zanetti, Abeledo Perrot 2009);
Berta Kaller de Orchansky, Nuevo Manual de Derecho internacionalprivado (Plus Ultra 1991);
Ines Weinberg de Roca, Derecho Internacional Privado (3rd edn, LexisNexis-Depalma 2004).