Edited by Jürgen Basedow, Giesela Rühl, Franco Ferrari and Pedro de Miguel Asensio
I. Sources of private international law
1. Major legislation
As a unitary system with a liberal democratic constitution, Uruguay contains neither a regime of interstate conflict of laws nor a system to regulate the conflict of interpersonal laws. While the Constitution (Constitución Nacional de la República Oriental del Uruguay de 1967, actualizada con enmiendas de los plebiscitos de fechas 26/11/89, 27/11/94, 8/12/96 y 31/10/04; concordada con Leyes interpretativas. IMPO – Dirección Nacional de Impresiones y Publicaciones Oficiales, 2013) contains no express provision on the conflict of laws, several principles of private international law can be gleaned from constitutional dispositions, including the principle of freedom of contract, uniformity of application, reasonability of →connecting factors, harmonization of laws, protection of children’s rights, protection of property, etc.
Similarly, while customary international law finds no source in statutory law, art 9 of the Uruguayan Civil Code (Código Civil de la República Oriental del Uruguay as of 26 February 2010, henceforth CC) clarifies that p. 1customs ‘are not law, except in cases in which the law specifically refers to such’. This clause, which is found in the preliminary chapter of the CC, is applicable to all areas of law, including private international law. It can be argued that custom does have some value in private international law, in particular with regard to the commercial aspects, in that it encapsulates the uses and practices of international commerce. Its value as a source of law arises from its recognition in international conventions. In this sense, we can mention art 10 of the Inter-American Contracts Convention (Inter-American Convention of 17 March 1994 on the Law Applicable to International Contracts, 33 ILM 732) and art 8(3) of the CISG (United Nations Convention of 11 April 1980 on Contracts for the International Sale of Goods, 1489 UNTS 3).
On the other hand, public international law is of specific importance in the application, validity and interpretation of the different sources of private international law (→Public international law and private international law). It is common understanding within Uruguayan jurisprudence that the Vienna Convention on the Law of Treaties (Vienna Convention on the Law of Treaties of 23 May 1969, 1155 UNTS 331) regulates not only public treaties, but also private international ones (LJU c 13583).
Furthermore, all international treaties recognizing human rights are of particular importance. In this sense, Uruguayan scholars have repeated that instruments protecting the rights of persons and infants deserve special attention in interpreting as well as filling the gaps of private international law (→Human rights and private international law).
Choice of the applicable rule of law governing facts connected with foreign law shall be subject to the provisions of this Convention and other bilateral or multilateral conventions that have been signed or may be signed in the future by the States Parties. In the absence of an international rule, the States Parties shall apply the conflict rules of their domestic law (art 1 of the Inter-American Private International Law Convention).
2. International conventions
From the point of view of international codification, there are two decisional areas in which Uruguay has been a leading player: the →CIDIP Conferences within the framework of the Permanent Council of the Organization of American States (OAS), which have been meeting since 1975, and the Technical Commission of the Meetings of the Ministers of Justice of the Mercosur, which began as a sub-regional process of integration between the countries of →Argentina, →Brazil and →Paraguay (including →Venezuela at a later stage). Uruguay also participates, although with a lesser degree of importance, in the →Hague Conference on Private International Law, several conventions of which have been ratified.
Within the framework of the CIDIP, Uruguay ratified all Inter-American conventions on a number of topics, including 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 Arbitration Convention (Inter-American Convention of 30 January 1975 on International Commercial Arbitration, OAS, Treaty Series, No 42, 1438 UNTS 249), 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, OAS, Treaty Series, No 45), the Inter-American Letters Rogatory Convention (Inter-American Convention of 30 January 1975 on Letters Rogatory, 1438 UNTS 283), the Inter-American Checks Convention 1979 (Inter-American Convention of 8 May 1979 on Conflicts of Laws Concerning Checks, 1439 UNTS 1986), the Inter-American Taking of Evidence Convention (Inter-American Convention of 30 January 1975 on the Taking of Evidence Abroad, 1438 UNTS 385, OAS, Treaty Series, No 44), 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 Domicile Convention (Inter-American Convention of 8 p. 1May 1979 on Domicile of Natural Persons in Private International Law, 1439 UNTS 44), 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), the Inter-American Commercial Companies Convention (Inter-American Convention of 8 May 1979 on Conflicts of Laws Concerning Commercial Companies, OAS, Treaty Series, No 50, 1439 UNTS 26), 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 Private International Law Convention, Inter-American Indirect Jurisdiction Convention (Inter-American Convention of 24 May 1984 on Jurisdiction in the International Sphere for the Extraterritorial Validity of Foreign Judgments, 24 ILM 468), the Inter-American Adoption Convention (Inter-American Convention on Conflict of Laws Concerning the Adoption of Minors of 24 May 1984, 24 ILM 460), 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) and the Inter-American Traffic in Minors Convention (Inter-American Convention of 17 March 1994 on International Traffic in Minors, OAS, Treaty Series, No 79). In addition, Uruguay ratified two Additional Protocols: the Additional Protocol to the Inter-American Taking of Evidence 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) and the 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).
The most relevant instruments ratified by Uruguay under the auspices of MERCOSUR are the Protocol of Buenos Aires (Buenos Aires Protocol on International Jurisdiction in Contractual Matters (1994), MERCOSUR/CMC/DEC. No 01/94, available at <www.sice.oas.org/trade/mrcsrs/ decisions/AN0194_e.asp>), the Ouro Preto Protocol (Additional Protocol to the Asunción Treaty on the Institutional Structure of MERCOSUR (Ouro Preto Protocol) of 17 December 1994, 2145 UNTS 300, available at <www.mercosur.int/msweb/SM/Normas/PT/CMC_1994_OuroPreto.pdf>), the Protocol of Las Leñas (Las Leñas Protocol of 27 June 1992 on Judicial Cooperation and Assistance in Civil, Commercial, Labour and Administrative Matters, 2145 UNTS 421), the Santa Maria Protocol (MERCOSUR Santa Maria Protocol of 17 December 1996 on International Jurisdiction in Consumer Relation Matters, MERCOSUR/CMC/DEC. No 10/96, available at <www.mercosur.int/msweb/Normas/normas_web/Decisiones/E S/Dec_010_096_.PDF>) as well as the San Luis Protocol (MERCOSUR San Luis Protocol of 25 June 1996 in matters of liability in traffic accidents, MERCOSUR/CMC/DEC No 1/96, available at <www.mercosur.int/msweb/Normas/normas_web/Decisiones/E S/Dec_001_096.PDF>).
As regards its commitments under the Hague Conference, Uruguay has ratified or acceded to the following conventions: the Hague Child Abduction Convention (Hague Convention of 25 October 1980 on the civil aspects of international child abduction, 1343 UNTS 89), the Hague Adoption Convention (Hague Convention of 29 May 1993 on protection of children and co-operation in respect of intercountry adoption, 1870 UNTS 167; 32 ILM 1134) and the Hague Child Protection Convention (Hague Convention of 19 October 1996 on jurisdiction, applicable law, recognition, enforcement and co-operation in respect of parental responsibility and measures for the protection of children, 35 ILM 1391). In addition, it has ratified 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 New York Convention (New York Convention of 10 June 1958 on the recognition and enforcement of foreign arbitral awards, 330 UNTS 3), 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) and the Protocol amending the Convention on the Limitation Period of 11 April 1980 (1511 UNTS 99), the CISG, and the UN Convention on the Rights of the Child of 20 November 1989 (1577 UNTS 3).
Coupled with several bilateral treaties which essentially cover procedural matters and matters relating to the protection of children, which p. 1complete the range of international instruments in force in Uruguay, it may be said that the country is deeply committed to the international development of private international law and its obligations in general as a conscious member of the international community.
3. Role of case-law
The law and customs (to the extent that the law specifically makes reference to them) are the only obligatory sources of law, with the effect that the system of precedent is of no relevance. Jurisprudence does not constitute a formal source of private international law, although it is valuable for the purposes of interpretation of the laws and treaties.
4. Role of doctrinal writing
Doctrinal writing does not constitute a formal source of private international law; however, it is a factor that should be taken into consideration when necessary to fill the gaps of the internal law. This is recognized by art 16 CC, which states that where a civil matter cannot be resolved by reference to the wording or the spirit of the law in the matter, then one should consider the underlying considerations in analogous laws ‘and if there is still doubt, then one should consider general legal principles and the most accepted doctrine, considering the circumstances of the matter’.
II. History of private international law
The foundation stone of the Uruguayan private international law system is the 1889 Treaties agreed in the first South American Congress of private international law in Montevideo, which were a result of the initiative of the renowned Uruguayan lawyer Gonzalo Ramirez.
The Montevideo Treaties of 1889 (Actas y tratados celebrados por el Congreso Internacional Sud-Americano de Montevideo (El Siglo Ilustrado 1911)) comprises eight treaties in total: the Treaty on International Civil Law, the Treaty on International Commercial Law, the Treaty on Procedural Law, the Treaty on Literary and Artistic Property, the Treaty on Patents of Invention, the Treaty on Trademarks and Trade Names, the Treaty on International Criminal Law and the Convention on Work in the Liberal Professions. The Treaties also include an Additional Protocol, which sets out the norms regarding the application of foreign law (→Foreign law, application and ascertainment).
On the 50th anniversary of the signature of the Treaties of 1889, a Second South American Congress was held with the purpose of revisiting those treaties and amending them in light of the experience of their application. The second conference took place at two different dates, one in 1939 and the other in 1940. On the first occasion in 1939, three treaties were signed: the Treaty on Political Asylum and Refugees, the Treaty on Intellectual Property and the Convention on work in the Liberal Professions. On the second occasion in 1940, five treaties were signed: the Treaty on International Civil Law, the Treaty on International Terrestrial Commercial Law, the Treaty on International Commercial Navigation Law, the Treaty International Procedural Law and the Treaty on International Criminal Law, as well as an Additional Protocol regarding the application of foreign law. The Treaties signed in 1939 and 1940 only came into force between Argentina, Paraguay and Uruguay, with the exception of the Convention on International Criminal Law, which only came into force between Uruguay and Paraguay.
Subsequent to the second South American Congress of Montevideo, Uruguay approved its very own law on private international law, Law Nr. 10084 (approved on 3 December 1941), which incorporates as an Appendix to the Civil Code (henceforth Appendix to the CC), arts 2393–2405. These articles are intended to condense, in the words of its author, ‘the juridical substance of our international doctrine’, at the time of its approval, in accordance with the Montevideo Treaties.
Many years later, other transcendental reforms in the national legislation of private international law were approved. First, in 1988 a new General Procedural Code (Código General del Proceso de la República Oriental del Uruguay, Law No 15982 henceforth CGP) was approved, which in its Title X regulates all aspects concerning cooperation in international procedures and the recognition and enforcement of foreign judgments and arbitral awards. Second, in 1989 a new law on →companies (Ley de Sociedades Comerciales, Law No 16060, henceforth LSC) was approved that contains a chapter referring to companies formed abroad.
Subsequent to these laws, there have been very few provisions that refer to questions of p. 1private international law. There are some isolated terms, such as art 121 of the Law on Securities Market (Ley de Mercado de Valores, Law No 18627) or art 30 of the Law regarding Foundations (Ley de Fundaciones, Law No 17163). More recently, Uruguay approved a new Code for Childhood and Adolescence (henceforth CCA), which has a special chapter regulating international adoption (arts 149 ff). In addition, Uruguay approved Law No 18895, which provided a special procedure for the restitution of minors. Regarding bankruptcy and concordats (Ley de Concursos, Law No 18387) establishes rules regarding bankruptcy proceedings in cases relating to foreign issues.
III. Administration of private international law
1. Courts and non-judicial authorities
There are no courts that specialize in private international law matters. These matters, including commercial and admiralty issues, fall within the competence of civil, family and labour courts. The same courts that have to decide national cases shall decide international aspects of these cases and international private law situations as well.
Outside the tribunals, public authorities, as well as notaries, are obliged to apply private international law rules when the private relationship is connected to more than one juridical system, or, in other words, when the legal situation has relevant foreign elements. In particular, public recorders acting in the Register of Civil State and in the General Register Direction, both of which fall under the direction of the Education and Culture Ministry, usually deal with foreign documents to be filed, which requires them consequently to apply choice-of-law rules. Notaries and other public employees are under a similar obligation.
2. Application and enforcement of foreign law
The obligation of the authorities – both judicial and administrative – to apply foreign law ex officio is no longer disputed. Both protocols to the Montevideo Treaties of private international law (of 1889 and 1940) established that the laws of contracting states shall be applied in other states with regard to nationals or foreigners as being the persons interested in the juridical relation (art 1 of both protocols to the Montevideo Treaties). The application of these laws shall be made ex officio by the judges in charge, without prejudice to the right of the parties to allege and prove the existence and the content of the corresponding rules (art 2 of both protocols to the Montevideo Treaties).
Subsequently, Uruguay signed and ratified the Inter-American Private International Law Convention, which reiterates that: ‘Judges and authorities of the States Parties shall enforce the foreign law in the same way as it would be enforced by the judges of the State whose law is applicable, without prejudice to the parties’ being able to plead and prove the existence and content of the foreign law invoked’ (art 2).
Tribunals shall interpret foreign law in the same manner as it is done in the state of origin (art 2 Inter-American Private International Law Convention; art 523(3) CGP). Since the existence of precedents is not obligatory under the Uruguayan justice system, this obligation could be interpreted as allowing judges less flexibility to interpret foreign law relative to domestic laws. The justification for this distinction is that Uruguayan judges are not expected to be able to interpret foreign law, but the question is still open among scholars.
In accordance with the obligations mentioned above, the Inter-American Foreign Law Convention has been approved within the →CIDIP sphere in order to assist judges and authorities in the difficult task of applying foreign law. Indeed, the purpose of this Convention is to establish rules that govern international cooperation between states for obtaining information and elements of proof from other states concerning their respective laws. According to this instrument, the authorities of each of the States Parties shall provide the authorities of the other States Parties elements of proof of and reports on the text, validity, meaning and legal scope of their law upon request (art 2 Inter-American Foreign Law Convention). International cooperation in the matter to which this Convention applies shall be provided through any of the suitable means of proof contemplated in both the law of the state of origin and the law of the state of destination – namely, certified copies of legal texts together with an indication of their validity, judicial precedents, expert testimony, reports of the state on the text, the validity, meaning and scope of its law on specific points, etc (art 3 Inter-American Foreign Law Convention). The state that provides the reports shall not be held responsible for the opinion expressed, nor shall it be required p. 1to apply the law or cause it to be applied in accordance with the content of the reply provided. Similarly, the state that receives the reports shall not be required to apply the law or cause it to be applied in accordance with the content of the reply received (art 6 Inter-American Foreign Law Convention). Requests made under this Convention may be forwarded directly through the judges, courts or the Central Authority of the state of origin to the corresponding central authority of the state of destination, while the implementation of the law shall not be required (art 7 Inter-American Foreign Law Convention).
Since foreign law must be considered to be of the same nature as national law, there should be no difference in the procedural treatment in comparison with national law. The law to be applied shall not require any proof, and the tribunal as well as the parties may utilize any legitimate proceeding to confirm it. The law is clearly distinguished from the facts. While the facts will be proved in court, the law, whether local or foreign, does not need to be demonstrated (art 143 CGP). Notwithstanding this, the parties may prove the existence, validity and content of foreign law.
Regarding the question of the procedural treatment of foreign law, a previous case stated that it has to be distinguished between the evidence of the content and validity of the rules and the manner in which foreign judges apply their law. Content and validity could be confirmed at any stage in the process, even at second instance, whilst the manner in which judges apply their own law is a questio facti that may be proved only in the correspondent evidence stage of the proceedings (LJU c 13062).
All forms of procedural recourse following from the wrong application of the law by the tribunals may also be permitted in the case of wrongful application of foreign law, namely in the form of appellation or cassation in particular before the Supreme Court (art 3 of both protocols to the Montevideo Treaties; art 523(4) CGP).
3. Exceptions to the application and enforcement of foreign law
Considering the obligation to apply foreign law where it is warranted, the Uruguayan system only provides for a few exceptions. First and of most importance is the exception of international public order (→Public policy (ordre public)) and, second, the unknown institution exception. The possibility of opposing the evasion of the law exception (→Evasion of laws (fraus legis)) is discussed by scholars, but is rarely and reluctantly admitted by jurisprudence.
The ordre public exception is admitted in art 4 of the protocols to the Montevideo Treaties, art 525(5) CGP, art 2404 of the Appendix to the CC and art 5 of the Inter-American Private International Law Convention. The Uruguayan interpretation regarding ordre public was expressed at the time of approval of the Convention as follows: ‘its interpretation … refers to international public order, as an individual juridical institution, not necessarily identifiable with the internal public order of each state’.
Regarding the unknown institution exception, the Inter-American Private International Law Convention provides in art 3 that: ‘Whenever the law of a State Party has institutions or procedures essential for its proper application that are not provided for in the law of another State Party, this State Party may refuse to apply such a law if it does not have any like institutions or procedures.’When there is a similar institution or procedure in the state, the foreign law must be adapted to the rules of such a state.
Finally, as regards the evasion of law exception, Uruguayan scholars used to refuse to apply it for a long time because of the practical inconveniences to the extent that the animus fraudandi had to be proved. Even after the approval of the Inter-American Private International Law Convention, the debate on this point still continues, because Uruguay made a reservation regarding this art mainly because ‘it introduces an element of subjectivity that is difficult to perceive’. Despite such a reservation, renowned scholars believe that the judges should apply the exception in such cases of abuse of rights and, very recently, jurisprudence has also started to admit the exception in some cases.
IV. Basic principles of private international law
1. General remarks
The Uruguayan traditional jurisdiction system for almost all the international categories is developed following the parallelism principle proposed a long time ago by the well-known Dutch jurist Tobias Asser. According to this p. 1system, it is the state whose law is applicable that has competent jurisdiction to deal with problems arising from international private relations. This is the system established in art 2401 of the Appendix to the CC for all the international juridical relations within its scope, as well as in the majority of the Montevideo Treaties rules, namely arts 56 ff of the Montevideo Treaties of 1889 and 1940.
Although the Asser system has demonstrated several advantages, in particular, that it leads the judges to the application of their own law, it has not been enough to guarantee due process in individual cases. Consequently, other criteria have become relevant, such as the universally accepted principle that the claim may also be presented before the judges of the country where the defendant is domiciled (actor sequitur forum rei). This criterion is valid in Uruguayan international jurisdictional system at least in respect of some actions of personal property (actio in personam), even though it is not accepted for actions of realty (actio in rem). The second paragraph of art 2401 of the Appendix to the CC and art 56 of the Montevideo Treaties both recognize this concept. More recently, several multilateral treaties on specific categories establish other basis of international jurisdiction. This is the case for the Protocol of Buenos Aires and the Santa María Protocol in the sphere of MERCOSUR. Increasing the jurisdiction basis in the field of recognition and enforcement of foreign sentences, the Inter-American Jurisdiction Convention of 1984 should be highlighted in this respect.
Notwithstanding the above-mentioned developments, the Asser system continues to be the general rule to determine the competent international tribunals, so that questions about jurisdiction shall be addressed in the determination of the applicable law to each category.
Obligations can be divided into two main groups: first, obligations derived from some kind of agreement, including contracts; and, second, obligations that exist without any previous convention, namely →torts and other non-contractual legal obligations.
In Uruguayan autonomous private international law, the principle of →party autonomy (conflictual autonomy) finds support only insofar as it is recognized by the national law of the competent state. In this respect, art 2403 of the Appendix to the CC provides: ‘The rules of legislative and judicial competence described under this Title shall not be modified by the intention of the parties. It may only act within the scope provided by the competent law.’ This provision is similar to the one provided under art 5 of the Additional Protocol to the 1940 Montevideo Treaties. Only when a conflict rule refers to a legal system where conflict autonomy is admitted must it be accepted by judges. Due to the general acceptance of the Appendix to the CC, which is applied as the general set of rules in place of other expressed autonomous rules, it is very difficult to evade this prohibition of art 2403 of the Appendix to the CC. Furthermore, the prohibition reaches both contractual and non-contractual obligations.
In spite of the discrepancy with the principle of autonomy in the Appendix to the CC, Uruguay ratified the Protocol of Buenos Aires, which accepts party autonomy within the scope of MERCOSUR, although with some limitations.
The basic rule for obligations is art 2399 of the Appendix to the CC, which provides as follows: ‘The juridical acts are governed, regarding their existence, nature, validity and effects, by the laws of the →place of performance, in accordance, on the other hand, with the interpretation rules of arts 34 to 38 inclusive, of the Montevideo Treaty on International Civil Law of 1889.’ There is a need to interpret the juridical →connecting factor of the ‘place of performance’, which is mandatory and, as such, may not be construed in a different way. Under such reference, contracts related to certain and individualized things are governed by the law of the place where they existed at the time of the completion of the contract (lex rei sitae; art 34(1) of the 1889 Treaty of Montevideo on International Civil Law). Contracts related to such things that are of a given class and those that are fungible are governed by the law of the domicile of the debtor at the time of the completion of the contract (lex domicilii; art 34(2) and (3); →Domicile, habitual residence and establishment). Contracts related to provision of services, if they are related to things, are governed by the law of the place where the things in question are located at the time of the execution of the contract (art 34(4)(a)); where the effect thereto is related to some particular place, contracts shall be governed by the law of the place where the effects have arisen (art 34(4)(b)) and, in such other cases, by the law of the p. 1domicile of the debtor at the time of the execution of the contract (art 34(4)(c)). The ‘debtor’ referred to in the above-mentioned rules is the party that must comply with the typical or characteristic obligation of the contract.
The law applicable to contracts of exchange of things that are located in different places is the law of the domicile of the parties or that of the place of execution if the parties are domiciled in different countries (art 35). Accessory contracts are governed by the law of the principal contract (art 36).
In relation to tort and other non-contractual obligations, the prevalent position is that the lex loci delicti comissi (the law of the place where the tort is committed) is applicable. This has been recognized both in the 1889 and 1940 Montevideo Civil Treaties (arts 38 and 42 respectively) and art 2399 of the Appendix to the CC, by way of an express remission to arts 34–38 of the 1889 Treaty of Montevideo on Civil Matters.
civil responsibility arising from traffic accidents will be regulated according to the internal law of the Member State in which the accident took place. If in the accident the only people affected were domiciled in a different State, such will be regulated by the internal law of that State.
As has already been stated, except for cases falling within the scope of the Protocol of Buenos Aires or the San Luis Protocol, which have more options, it is in accordance with the Asser criterion that international competent jurisdiction in contractual as well as in non-contractual obligations cases is determined. In addition, the principle of actor sequitur forum rei is also recognized.
The lex rei sitae, ie the law of the place where the thing is situated, determines its quality, its possession, whether it is total or partially transferable, and all the kinds of real (as opposed to personal) relations that it can be subject to (art 2398 CC). According to this rule, the lex rei sitae determines if the property is movable or immovable (→Property and proprietary rights; →Immovable property), or corporeal or incorporeal. It also determines the conditions of the possession that lead to the presumption of the right of property. The lex rei sitae determines not only if a good is transferable or not, but also what titles suffice to transfer the property and, if necessary, provides for the possibility of a complementary juridical act to validate this transfer as any kind of modus transferrendi. Mortgage and pledge as rights relating to real property are also regulated by the lex rei sitae.
With regard to certain types of movable property, the Montevideo Treaties provide the ‘place of situation’ as the important →connecting factor. In this sense, for example, the Montevideo Treaty on International Civil Law of 1889 takes the place where the ships are situated as being ‘the place where they are registered’ (art 27) and the place where the cargo is situated – whilst in non-jurisdictional waters – as the ‘the final place for delivery of the goods’ (art 28).
The Asser criterion is the only applicable to the question of jurisdiction (art 2401 first s Appendix to the CC, 67 and 64 of Montevideo Civil Treaties of 1889 and 1940 respectively), which is treated as one of the few exclusive cases (art 539(1) no 4 CGP).
4. Intellectual property
Uruguay has ratified the most important treaties protecting intellectual property: the Treaty on Literary and Artistic Property (Montevideo 1889), the Convention on Literary and Artistic Works (Buenos Aires 1910), the Treaty of Intellectual Property (Montevideo 1939), the Berne Convention (Berne Convention for the Protection of Literary and Artistic Works of 9 September 1886, completed at Paris on 4 May 1896, revised at Berlin on 13 November 1908, completed at Berne on 20 March 1914, revised at Rome on 2 June 1928, revised at Brussels on 26 June 1948, revised at Stockholm on 14 July 1967 and revised at Paris on 24 July 1971, 1161 UNTS 3 and amended in 1979 Treaty Doc No 99-27, and 1985, 828 UNTS 221), the Universal Copyright Convention (Geneva Universal Copyright Convention of 6 September 1952, available at <www.wipo.int/wipolex/ru/other_treaties/details.jsp?tre aty_id=208>) and the Treaty of Marrakesh (Marrakesh Agreement p. 1of 15 April 1994 Establishing the World Trade Organization, 1867 UNTS 3), which incorporates the trade-related aspects of intellectual property rights (→TRIPS). Producers of phonograms and radio broadcasting organizations are protected under the Phonograms Convention (International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations of 26 October 1961, 496 UNTS 43) and the Geneva Convention of 29 October 1971 for the protection of producers of phonograms against unauthorized duplication of their phonograms (866 UNTS 67), both of which have been ratified by Uruguay.
Several laws protect intellectual property in accordance with international conventions (mainly Nos 16580, 16811, 17011, 17164 and 17616).
Intellectual property is protected in Uruguay from unfair competition (→Competition, unfair), and jurisprudence dictates that Uruguayan tribunals are competent to hear such cases under conflict of laws of tort (in particular art 2399 and art 2401 of Appendix to the CC, as well as arts 38 and 43 of the Montevideo Civil Treaties of 1889 and 1940 respectively) to the extent that the illicit or the damage is situated in this country.
5. Family law matters
In line with the prevailing position under the Montevideo Treaties, almost all of the categories related to the personal statute are ruled by the lex domicilii. Notwithstanding, the concept may vary from one category to another. Moreover, particularly for those categories relating to minors, this →connecting factor has evolved into a real and concrete concept. For instance, in the Montevideo Treaties and the Inter-American Domicile Convention, the domicile of persons lacking capacity is considered to be that of their legal representatives, whilst in the Hague Child Protection Convention and the Inter-American Support Obligations Convention, it is the domicile of their habitual residence, ie the centre of their life (→Domicile, habitual residence and establishment).
Matters related to →marriage, the capacity of spouses (including diriment impediments), the form of marriage, its existence and validity are all regulated by the law of celebration (art 2395 CC, 11 and 13 of the Montevideo Civil Treaties of 1889 and 1940 respectively). Moving away from the domicile connection, these rules are considered favor matrimonii. Marriages celebrated abroad must fulfil the requisites of the country in which they are carried out. It is not possible to choose the law of Uruguay. Furthermore, consular marriage is forbidden. The monogamous character of the Uruguayan marriage system is considered by the Uruguayan Supreme Court of Justice as a question of ordre public (LJU c 13476).
As regards homosexual marriage, the recent Law No 19075 redefined the concept of marriage, including that of individuals of the same sex. Thus, in our common day and era, the solution appears to be the characterization of same-sex marriage as such, not only in internal but also in international relations.
According to art 2401 of the Appendix to the CC, the annulment of a marriage is a matter for the courts of the country where it was celebrated. These courts shall also decide on the merit and time of the action. This is convenient, given that the requisites of existence and validity are established by the same law. By contract, the Montevideo Civil Treaty of 1889 had established that the annulment shall be a matter for the jurisdiction of the courts of the marital domicile (art 62). In the same sense, divorce (→Divorce and personal separation) is regulated by the law of the marital domicile (art 2396 of the Appendix to the CC) and, according to the Asser criterion (art 2401 Appendix to the CC), the courts of the same country are competent in the international sphere to decide matters corresponding to divorce. This law determines whether the divorce is accepted as a cause to dissolve the marriage, and also the causes or reasons to accept it, even where the marriage was celebrated abroad. Problems arise to determine the conjugal domicile when spouses are living in different states. To solve this problem, Uruguayan courts assume competence even where only one of the spouses is domiciled in Uruguay.
Personal relations between spouses are regulated by the law of domicile (art 2396 of the Appendix to the CC). Obligations derived from cohabitation, the name, acquisition of →nationality, etc, are included under this category. →Maintenance obligations are regulated as an autonomous category.
The property regime within marriage varies with the 1889 on the one hand, and the p. 11940 Montevideo Treaties and art 2397 of the Appendix to the CC on the other. While the first basically admits →party autonomy to ‘govern the relationship of the spouses as regards the property which they have at the time of the agreement and that which they acquire subsequently’ (art 40 of the 1940 Montevideo Treaty), the latter two regulate the marital property mandatory by the law of the first domicile of the spouses, so that the regime does not change if the spouses move to other countries. Jurisdiction also varies depending on the object of action, where it is the judges of the place where the property is situated (arts 63 and 60 of the Montevideo Treaties 1889 and 1940 respectively) or the first domicile of the spouses (art 56 of both Montevideo Treaties and art 2401 of the Appendix to the CC) who are deemed to be competent.
Regarding filiation, the Montevideo Treaties make an inadmissible distinction between legitimate and illegitimate filiation following the criteria of the epoch. Such a distinction became incompatible as soon as Uruguay ratified the American Convention on Human Rights of 22 November 1969 (1144 UNTS 143), as well as the UN Convention on the Rights of the Child of 20 November 1989 (1577 UNTS 3). Without moving away from the principle of non-discrimination, judges should apply the law of domicile of the claimant or defendant following the favor filiationis principle. The Asser criterion may be employed to establish international jurisdiction (arts 56 of the Montevideo Treaties and art 2401 of the Appendix to the CC).
As regards →adoption, Uruguay is part of the Hague Adoption Convention, as well as the Inter-American Adoption Convention. The 1940 Montevideo Treaty only regulates adoption that does not eliminate the legal relationship with the original family. The CCA also regulates the international adoption, Uruguayan law being applicable where the adopted person lives in Uruguay.
Complementing the protection of persons lacking capacity, Uruguay approved the Hague Child Abduction Convention, the Hague Child Protection Convention and, in the OAS sphere, the Inter-American Restitution Convention (available at <www.oas.org>) and the Inter-American Traffic in Minors Convention. Bilateral treaties with →Argentina, →Chile and →Peru are still in force.
Maintenance obligations are regulated either by the Inter-American Support Obligations Convention or the UN Maintenance Convention 1956, even with states that did not ratify any of them, as they are considered the most appropriate doctrine to fill possible gaps. Bilateral treaties with →Spain and Peru are still in force.
→Succession mortis causa is governed in Uruguayan private international law by the law of the place where the goods were situated at the time of the death of the deceased (lex rei sitae; art 2400 of the Appendix to the CC, arts 44 and 45 of the Montevideo Treaties 1889 and 1940 respectively). Hence, the interested parties may start proceedings in any country where the deceased had assets. The personal law of the deceased (either the lex patriae or the lex domicilii) was discarded in this respect. There are some exceptions to the division system, namely the collection of some credits or legacies, and collations, all of which can, under certain circumstances, be claimed from one country to another (arts 46–50 of the Montevideo Treaties).
The validity of the wills, given its form, has been one of the most important problems in succession proceedings. The form of wills is regulated by the lex successionis, but the Montevideo Treaties establish that where the will is formally valid in one country, it should be recognized in the other states, provided that it has been issued either in a public deed (the 1889 Montevideo Treaty) or in a solemn act. Article 2400 of the Appendix to the CC does not expressly address this question, leaving open the interpretation of the expression ‘solemn act’ as well as the proper solution under the Appendix to the CC. Jurisprudence varies on this point, but the favoured approach is to accept foreign wills issued in a solemn act even in private documents, provided that the real will of the deceased is protected.
Uruguayan law provides some applicable rules to corporations as well as to other commercial →companies (limited partnership, limited liability companies, etc) incorporated abroad. These kinds of legal persons are regulated in s XVI under ‘companies constituted abroad’ of p. 1the LSC. The existence, capacity, operation and dissolution of companies shall be governed by the law of the place where they are constituted (art 192 LSC). The recognized capacity of companies constituted abroad may not be greater than the capacity granted by the law of our country (art 192 LSC in fine).
Companies duly constituted abroad shall be recognized, without prejudice of presenting evidence of their existence (art 193 LSC). Without any other requirement, these companies may perform acts on their own and be brought and commit other persons to trial. Notwithstanding this, if they want to perform acts related to their specific purpose (in accordance with the bylaws), establishing a non-full branch or other kind of permanent representative, they should fulfil other requisites (art 193 LSC). Only when they want to establish their headquarters in Uruguay, or their principal object is foreseen to be carried out in this country, are they obliged to fulfil all the legal requisites stated by Uruguayan law.
Apart from the Montevideo Treaties, Uruguay ratified the Inter-American Commercial Companies Convention, which was one of the most important sources of the LSC, even though some solutions differ slightly.
V. Recognition and enforcement of judgments
As a general principle, Uruguay has always recognized the validity of foreign judgments and arbitration awards, provided that there is compliance with certain requirements. Traditionally the Uruguayan system has distinguished between the recognition and enforcement of a foreign judgment. While recognition involved the simple process of checking for the basic requirements, enforcement was regulated differently, depending on the nature of the decision.
The general basis of the system is found in arts 537–543 CGP, but Uruguay has also ratified cooperation agreements, bilateral or in the sphere of →CIDIP, as well as in the Mercosur. The most important of these are the Inter-American Indirect Jurisdiction Convention, the Inter-American Foreign Judgments and Arbitral Awards Convention (both approved in the CIDIP) and the Protocol of Las Leñas Protocol (approved in MERCOSUR).
Article 540 CGP regulates proceedings in a very simple way to enforce the so-called ‘imperative and evidentiary effects of a judgment’ to be alleged in a local jurisdictional process. When the effects of the foreign decision are being considered in the administrative or even private sphere, no judicial proceeding is necessary except the control of the corresponding notary or public officer. On the other hand, so-called exequatur proceedings are only necessary to enforce foreign decisions that include a monetary award. In this case, the recognition process is brought before the Uruguayan Supreme Court of Justice, and the execution of the judgment is then put before first instance corresponding tribunals.
The relevant requirements that need to be assessed include the authenticity of the judgment, the international jurisdiction of the court that rendered the sentence, evidence of the existence of a due process, and a certificate stating that the judgment is res judicata and that it is not manifestly contrary to the →public policy principles of the Republic.
By reference to art 543 CGP, all requirements and considerations that are relevant to foreign judgments apply equally to foreign arbitral awards. Furthermore, the internal procedural rules apply equally to both national and international. In addition, Uruguay has ratified the New York Convention and the Inter-American Arbitration Convention, as well as two protocols following the same principles in the MERCOSUR sphere.
Both ad hoc and institutional arbitration is accepted. Indeed, institutional arbitration is widely recognized in almost all the Bilateral Investment Treaties (BIT) that Uruguay has consistently signed with a great number of countries over the years.
Gonzalo Lorenzo Idiarte
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