Encyclopedia of Private International Law
Show Less

Encyclopedia of Private International Law

Edited by Jürgen Basedow, Giesela Rühl, Franco Ferrari and Pedro de Miguel Asensio

The role and character of Private International Law has changed tremendously over the past decades. With the steady increase of global and regional inter-connectedness the practical significance of the discipline has grown. Equally, so has the number of legislative activities on the national, international and, most importantly, the European level. With a world-class editor team, 500 content items and authorship from almost 200 of the world’s foremost scholars, the Encyclopedia of Private International Law is the definitive reference work in the field. 57 different countries are represented by authors who shed light on the current state of Private International Law around the globe, providing unique insights into the discipline and how it is affected by globalization and increased regional integration. The Encyclopedia consists of three inter-linked pillars, enhanced by sophisticated search and cross-linking functionality. The first pillar consists of A-Z coverage of the scope and substance of Private International Law in the form of 247 entries. The second pillar comprises detailed overviews of the Private International Law regimes of 80 countries. The third pillar presents valuable, and often unique, English language translations of the national codifications and Private International Law provisions of those countries. This invaluable combination represents a powerful research tool and an indispensable reference resource.
Buy Book in Print
Show Summary Details
Limited access

Venezuela

I. Sources of private international law

1. Major statutory sources

The Venezuelan legislative branch is responsible for all private international law regulations in Venezuela, as has been the trend since the first private international law regulation was passed in 1862. In 1999 the Constitution of the Bolivarian Republic of Venezuela (Special Official Gazette No 5.908, 19 February 2009, available at www.mp.gob.ve/LEYES/constitucion/constitucion1.html, henceforth CBRV) expressly recognized this competence in its art 156.32. Nowadays, the main source of private international law is the Statute on Private International Law (Venezuelan Act on Private International Law, Official Gazette No 36.511 6 August 1998, henceforth PILA), which merges contemporary doctrines and comparative law with Venezuelan historical and social realities (→Comparative law and private international law).

The PILA establishes general private international law principles (arts 1–15), and regulates physical persons (arts 16–19), legal persons (art 20), family relationships (arts 21–26), property rights (arts 27–28), contracts (arts 29–31), non-contractual obligations (arts 32–33), successions (arts 34–36), form and proof of the acts (arts 37–38), jurisdiction and competence (arts 39–52 and 56–58), international judicial cooperation (art 59), recognition and enforcement of foreign judgments (arts 53–55) and the procedural treatment of foreign law (arts 60–61).

Additionally, there are international topics regulated in separate statutes; some of which preceded the PILA, but are still in force. Examples of these regulations are included in the Venezuelan Civil Code (Código Civil, Official Gazette No 2.990, 26 July 1982, henceforth CC), the Venezuelan Commercial Code (Código de Comercio, Official Gazette No 475, 21 December 1955, henceforth CCom), the Venezuelan Civil Procedural Code (Código de Procedimiento Civil, Special Official Gazette No 4.209, 18 September 1990, henceforth CPC), the Statute of Copyright (Ley de Derecho de Autor, Special Official Gazette No 4.638, 1 October 1993), the Statute of Time Sharing Contracts (Ley que Regula y fomenta la Multipropiedad y el Sistema de Tiempo Compartido, Special Official Gazette No 5.022, 18 December 1995), the Statute Protecting the Children (Ley Orgánica de Protección de Niños, Niñas y Adolescentes, Special Official Gazette No 6.185, 8 June 2015), the Statute of Civil Aviation (Ley de Aeronáutica Civil, Official Gazette No 39.140, 17 March 2009) and the Statute of Maritime Commerce (Ley de Comercio Marítimo, Official Gazette No 38.351, 5 January 2006), among others. Venezuela has also adopted a number of important treaties, mainly from the Organization of American States and the Hague Conference.

2. Venezuelan sources of private international law

According to art 1 PILA, private international law regulations apply to all cases related to foreign law. These regulations are to be applied in the following order: (i) those established by international treaties, including public international law rules (→Public international law and private international law); absent such rules (ii) Venezuelan rules p. 1of private international law; absent those, then (iii) rulings by analogy; or, finally, if none of the other sources were applicable, (iv) the generally accepted principles of private international law.

3. International treaties

The CBRV is recognized as the ‘supreme rule and the foundation of the legal system’ (art 7). It also states that treaties on human rights have constitutional status and therefore will prevail over domestic regulations, insofar as they contain more favourable provisions (art 23). Rules adopted within the framework of integration agreements will be considered an essential part of the legal system, and their application must be preferred to domestic legislation (art 153).

Venezuela has ratified three treaties sponsored by the UN: 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; General Assembly Resolution 1763 A (XVII) of 7 November 1962), the UN Convention on the Rights of the Child of 20 November 1989, 1577 UNTS 3 (General Assembly Resolution 44/25 of 20 November 1989) and the New York Convention (New York Convention of 10 June 1958 on the recognition and enforcement of foreign arbitral awards, 330 UNTS 3).

Since Venezuela became a full member of the Hague Conference in 1980, it has ratified five treaties: 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), the Hague Child Abduction Convention (Hague Convention of 25 October 1980 on the civil aspects of international child abduction, 1343 UNTS 89), 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) and the Hague Legalisation Convention (Hague Convention of 5 October 1961 abolishing the requirement of legalisation for foreign public documents, 527 UNTS 189).

From the perspective of regional codification, Venezuela is also part of the Bolivian Agreement on Enforcement of Foreign Acts (adopted in Caracas on 18 July 1911 at the Bolivian Congress), the Convention on Private International Law (Bustamante Code) (adopted at Havana on 20 February 1928 at the Sixth International Conference of American States; OAS, Law And Treaty Series, No 34), and the Protocols of 22 July 1936 on Foreign Companies and of 17 February 1940 on Uniformity of Legal Regime of Powers, both adopted in Washington at the Seventh International Conference of American States.

Venezuela ratified the Bustamante Code in 1932 with 44 specific reservations. Currently, the Bustamante Code is effective in Bahamas→Brazil, →Cuba, →the Dominican Republic Guatemala, Haiti, Honduras, Nicaragua, →Panama and Peru. The doctrine and case-law tend to focus the study of Venezuelan private international law more recently around treaties and the PILA. Most of its solutions are not considered by the doctrine as generally accepted principles of private international law in the sense of art 1 PILA.

Within the framework of the Organization of American States, Venezuela has ratified 14 regulations: the Inter-American Bills of Exchange Convention p. 1(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 Letters Rogatory Convention (Inter-American Convention of 30 January 1975 on Letters Rogatory, OAS, Treaty Series, No 43; 1438 UNTS 283) and its Additional Protocol of 8 May 1979 (Additional Protocol of 8 May 1979 to the Inter-American Convention on Letters Rogatory, OAS, Treaty Series, No 56; 1438 UNTS 283), the Inter-American Taking of Evidence Abroad Convention (Inter-American Convention of 30 January 1975 on the Taking of Evidence Abroad, OAS, Treaty Series, No 44, 1438 UNTS 385) and its Additional Protocol of 24 May 1984 (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), 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, OAS, Treaty Series, No 45, 1438 UNTS 263), the Inter-American Checks Convention 1979 (Inter-American Convention of 8 May 1979 on Conflicts of Laws concerning Checks, OAS, Treaty Series, No 49, 1439 UNTS 1986), 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 Judgments and Arbitral Awards Convention (Inter-American Convention of 8 May 1979 on Extraterritorial Validity of Foreign Judgments and Arbitral Awards, OAS, Treaty Series, No 51, 1439 UNTS 91), the Inter-American Private International Law Convention (Inter-American Convention on General Rules of Private International Law of 8 May 1979, OAS, Treaty Series, No 54, 1457 UNTS 3), the Inter-American Convention on Proof of and Information on Foreign Law of 14 June 1980 (OAS, Treaty Series, No 53), 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 Contracts Convention (Inter-American Convention of 17 March 1994 on the Law Applicable to International Contracts, OAS, Treaty Series, No 78, 33 ILM 732).

4. MERCOSUR

Venezuela was part of the Andean Community of Nations (Comunidad Andina de Naciones) until May 2006, when it relinquished its membership of this system. In the same year, Venezuela signed the Protocol of Accession to MERCOSUR of 4 July 2006 (available at <www.mercosur.int/innovaportal/file/4447/1/94-protocolodeadhesiondevenezuelaalmsur-es.pdf>). It became an active member on 2013, after the Congress of Paraguay approved its request to join MERCOSUR. However, it remains unclear which rules of private international law approved under MERCOSUR are in force in Venezuela.

Initially, according to art 42 of the Protocol of Ouro Preto (MERCOSUR Additional Protocol to the Treaty of Asunción on the Institutional Structure of MERCOSUR, available at <www.mercosur.int/innovaportal/file/721/1/cmc_1994_protocolo_ouro_preto_es.pdf>), MERCOSUR regulations are to be incorporated into national law following the procedures provided for these purposes by the domestic legislation of each state. However, a number of MERCOSUR treaties, such as the Protocol of Santa Maria (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/ES/Dec_010_096_.PDF>; art 16) and 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>; art 17), recognize their automatic enforcement ipso iure with the accession to the Treaty of Asuncion (Treaty for the Creation of a Common Market between the Republic of Argentina, the Federative Republic of Brazil, the Republic of Paraguay and the Oriental Republic of Uruguay of 26 March 1991, available at <www.mercosur.int/innovaportal/file/719/1/CMC_1991_TRATADO_ES_Asuncion.pdf>).

Indeed, the Venezuelan domestic procedure included in art 154 CBRV establishes that all treaties must be approved by the National Assembly before being ratified by the President, except, among others, those by which Venezuela performs pre-existing obligations. Rules of integration are included within this category. This interpretation is ratified in art 153 CBRV, which states that the rules adopted in the framework of integration will be considered an essential part of the legal system and will have direct and preferred enforcement. Accordingly, if the validity of the MERCOSUR rules depends on the internal procedure, it appears that most of its rules would be in force in Venezuela, but until now there has been no official statement to determine whether MERCOSUR rules require ratification. However, on 2 December 2016, Venezuala was suspended from MERCOSUR due to the breach of all the the procedures for its complete entry into the group. Venezuala is currently preparing to appeal this decision in arbitration.

5. Role of case-law

Case-law is considered as an auxiliary and generally non-binding source of law. It becomes binding in two cases: first, when the Civil Chamber of the Supreme Court of Justice (Tribunal Supremo p. 1de Justicia, henceforth TSJ) overturns a trial court decision, the TSJ decision becomes binding on the trial court (art 322 CPC); and, second, decisions from the Constitutional Chamber of the TSJ interpreting constitutional rules and principles are binding on all Venezuelan courts (art 335 CBRV). Normally, courts try to comply with the TSJ decisions and often rely on them to support their arguments with a view to protecting the integrity and uniformity of the law (art 321 CPC).

6. Role of doctrinal writings

Doctrinal writings are also auxiliary sources. In practice, judges often include the opinions of jurists to support their decisions. The role of doctrine also includes guiding legislative production. The PILA, for example, is the result of work by Venezuela’s academic community.

II. History and development of private international law

The 1862 CC included the first Venezuelan private international law regulation. Using art 3 of the French Civil Code (Code Civil of 21 March 1804) as a model, it included three unilateral rules. First, art 9 CC established that Venezuelan law determined the status and capacity of Venezuelan nationals wherever their domicile or residency was located. Second, under art 10 CC, Venezuelan law governed real estate located in Venezuela. Finally, art 11 CC established that the law of the place where the act was made ruled the formal requirements of any act (→Formal requirements and validity). Article 11 also mandated compliance with the requirement of a public document in cases where Venezuelan law so required and added the principle auctor regit proccesum. The system was essentially statutory and influenced by the doctrine of Mancini (→Mancini, Pasquale Stanislao).

Article 8 CC established that Venezuelan law governed all people within Venezuelan territory. This mandate was incoherent when read in conjunction with the other CC articles. However, in practice, this rule was not invoked in private international law cases because it was understood that ‘Venezuelan law’, as referred to by the article, included private international law rules.

Although the attempts to have a special regulation began in 1912, with the Statute of Application of Private International Law prepared by Pedro Manuel Arcaya, this draft was never adopted. The second attempt to have a special private international law statute occurred in 1963, when a commission integrated by Joaquín Sánchez-Covisa, Roberto Goldschmidt and Gonzalo Parra-Aranguren published the draft Statute of Principles of Private International Law. This draft was slightly modified in 1965, but was never passed by the Congress, due to Venezuela’s lack of private international law experience and the difficulties of adapting existing legislation to the novelty of the draft’s solutions, as well as a general disinterest in private international law.

However, this draft was again discussed during the first and second National Meeting of Professors of Private International Law (1995 and 1996 respectively), on the initiative of Tatiana Maekelt. The draft was updated to match the requirements of the current statutes and international treaties in force in Venezuela at the time, taking into account the evolution of local doctrine and case-law. This draft was adopted as the PILA on 6 August 1998 and entered into force on 6 February 1999. Its main objectives were to eliminate the problems caused by the abolished system and to modernize Venezuelan private international law.

III. Private international law administration

1. Courts and non-judicial authorities

There are no special private international law courts in Venezuela. Cases of private international law fall within the jurisdiction of the ordinary private law courts, particularly those with competence in →civil and commercial matters. Decisions from these courts may be appealed in higher courts, and these rulings in turn may have an extraordinary appeal before the Civil Chamber of the TSJ (Casación). There are special courts for children and labour matters, and in both cases the Social Chamber of the TSJ hears extraordinary appeals. Although non-judicial authorities are legislatively authorized to apply the rules of private international law (see art 2 Inter-American Private International Law Convention; art 60 PILA), they usually do not.

2. Application of foreign law

While no specific statute requires the application of conflict rules, judges must apply them ex officio. As a consequence, when a conflict rule demands the application of a foreign law, judges have to apply it, as otherwise the p. 1judgment could be appealed before the TSJ. In Venezuela, foreign law is not regarded as a matter of fact, so that parties have the option but not the duty to provide information on the applicable foreign law. This is a consequence of the formal requirement established in art 340.5 CPC, which mandates the plaintiff to make express reference in the relevant pleadings to the legal basis of its complaint, while the judge is not bound by any such legal characterization (→Classification (characterization)).

Treating foreign law as a matter of law rather than fact has been accepted in Venezuela since the ratification of the Bustamante Code in 1932. This treaty supports the application of foreign law (→Foreign law, application and ascertainment) on the judge’s own initiative, and allows the judge to ask the parties about foreign law (arts 408–411). The Code also promotes appeals whenever foreign law is misapplied (art 412).

The Inter-American Private International Law Convention confirmed Venezuela’s position on the treatment of foreign law. Although art 2 could lead to a different interpretation, Venezuela has always understood it as reaffirming the application of foreign law as a judicial obligation. Article 4 supports appeal based on misapplication of foreign law. Additionally, the Inter-American Foreign Law Convention establishes cooperation mechanisms to communicate the content, meaning and validity of foreign law between courts. It admits the use of documentary evidence (→Evidence, procurement of) consisting of: (i) certified copies of legal texts together with an indication of their validity or judicial precedents; (ii) expert testimony, consisting of opinions of attorneys or experts on the matter; and (iii) reports of the state of destination on the text, validity, meaning and scope of its law on specific points (art 3).

The PILA confirms the treaty’s mandate in art 2, stipulating that foreign law will be applied in accordance with the governing principles of the foreign country of origin, provided they are consistent with the objectives pursued by the Venezuelan conflict-of-laws regulations. Doctrine interprets this last expression as referring to the need to achieve individual justice. Courts applying foreign law ex officio may order actions to acquire greater knowledge of the foreign applicable law, and the parties may provide information related to the applicable foreign law (art 60). The appellate procedures established by law are to be followed whatever the applicable law may be (art 61). Case-law has complemented these mandates by determining the precise procedure in cases of non-application, misapplication or misinterpretation of foreign law, pointing out the rules that should be reported in each case (Foreign Credit Insurance Association v Naviera Rassi, CA (Naviarca) et al [2001] TSJ/SCC 0871).

IV. Basic principles of jurisdiction

1. General structure

There are two general criteria to determine the jurisdiction of Venezuelan courts. Article 318 Bustamante Code establishes voluntary submission to a court as a general criterion for civil and commercial cases. This criterion requires at least one party to be a national or domiciled in the state of the chosen court, unless local law provides otherwise. The TSJ has interpreted this last expression as a reference to exclusive and non-derogable jurisdiction (David Enríquez Angulo et al v Margarita Cargo Line Inc [2001] TSJ/SPA 1321).

The defendant’s domicile is the general jurisdiction rule according to art 39 PILA, which is interpreted as the place of habitual residence (art 11 PILA) in the case of natural persons. Because of the silence of the PILA, under a →lex fori characterization, civil corporations have their domicile in the place where their management or administration is located (art 28 CC), and commercial corporations in the place determined by the company statutes and, absent such designation, at the commercial corporation’s principal place of business (art 203 CCom).

The Venezuelan system recognizes that the parties may conventionally derogate from the jurisdiction of Venezuelan courts (art 47 PILA). However, there are three exceptions to this principle: (i) cases where the matter involves a dispute concerning in rem rights over →immovable property situated in Venezuela; (ii) matters not subject to private settlement; and (iii) matters that affect the essential principles of the Venezuelan ordre public. In these three cases the submission of the parties to a foreign court has no effect in Venezuelan courts, which may decide on the dispute. Moreover, the case of rights in rem over immovable property situated in Venezuela is characterized as exclusive jurisdiction (art 53(3) PILA). Venezuelan courts will not accept the submission of the parties with respect to proceedings that affect rights p. 1over immovable property, unless permitted by the law of their location (art 46 PILA).

Doctrine also regards non-derogable jurisdiction cases of →insurance contracts concluded with foreign →companies (art 358 CCom), and contracts regarding transport of goods or persons entering Venezuelan territory (art 10 Statute of Maritime Commerce). Article 5 Statute on Maritime Procedure states that Venezuelan courts may not hear the case when it is attributed exclusively to the jurisdiction of another state according to a treaty. Finally, cases of public interest contracts are also considered to be exclusive jurisdiction (art 151 CBRV).

In cases of maritime collision, when Venezuelan courts have jurisdiction because the defendant has been personally served in Venezuela, or when one of the ships is arrested in a Venezuelan port, or if after a collision one of the ships made its first stop or eventually arrives at a Venezuelan port, then judges have the power to decline their jurisdiction on the request of the defendant. Venezuelan courts rule taking into account the connection between parties, ships, insurers and crew with the foreign jurisdiction (art 333 Statute of Maritime Commerce).

2. Obligations

Regarding obligations, the Bustamante Code recognizes the jurisdiction of the courts of the →place of performance, and in their absence, the defendant’s domicile, unless local law provides otherwise (art 323).

Under the PILA, the general rule applicable to patrimonial actions governs obligations (art 40). This rule establishes six criteria, recognizing some as particularly applicable to obligations. Article 40.2 states that Venezuelan courts have jurisdiction where actions relating to obligations that must be performed in Venezuela or derive from contracts made or facts done in Venezuela. Most scholars interpret this last criterion as an expression of the forum delicti commissi principle.

The election of Venezuelan courts is particularly relevant for international contracts (art 40.4). Without requiring connections with the chosen tribunal, the election of Venezuelan courts may be expressed in written form (art 44) or can be implied from the fact that the plaintiff presents the complaint and, on the part of the defendant, from the fact that they participate in proceedings other than to propose that the court should decline to take jurisdiction or to oppose a preventive measure (art 45).

Article 40 also admits the jurisdiction of Venezuelan courts in the case of disposition or possession of movable or immovable property situated in Venezuela (art 40.1), or if the defendant is personally served within Venezuelan territory (art 40.3).

The Venezuelan system does not establish special criteria for particular obligations. However, there are jurisdiction criteria in the Inter-American Bills of Exchange Convention (art 8, place of performance), the Statute of Maritime Commerce (art 12, boats with the Venezuelan →flag, acts occurring in Venezuelan aquatic space) and the Statute of Civil Aviation (art 157.3, aircraft nationally, acts occurring in Venezuela, principle of parallelism).

3. Property rights

Venezuelan courts have jurisdiction over property rights (→Property and proprietary rights) when the property is located in Venezuela. The Bustamante Code recognizes this principle for immovable property (art 325). For movable property, it also accepts, in a rule reserved by Venezuela, the defendant’s domicile when the place of location is unknown (art 324). In the case of property situated in more than one state, the courts of one of those states will have jurisdiction, unless the law of the location prohibits it for immovable property (art 326). The PILA also accepts this principle (art 40.1) and is the exclusive forum for rights in rem over immovable property situated in Venezuela. The election of Venezuelan courts and personal service of the defendant (art 40.3 and 4) are also applicable jurisdiction criteria in property matters.

4. Corporations

Neither the Bustamante Code nor the PILA contains special criteria for corporations (→companies); therefore, the criteria related to patrimonial actions are applicable. The Inter-American Commercial Companies Convention states that for the performance of acts directly or indirectly related to their purpose, commercial companies are subject to the judicial or administrative authorities of the state where they perform such acts (art 6).

Relating to insolvency, the Bustamante Code provides that if the debtor voluntarily initiates the trial, the courts of their domicile have p. 1jurisdiction (art 328; →Insolvency, jurisdiction and vis attractiva). If creditors initiate the trial, any court in which the demand has been pursued will have jurisdiction. The court of the debtor’s domicile will be preferred if the debtor or most of the creditors demand it (art 329). The PILA only has a general rule on estates, which will be discussed below (art 42).

5. Intellectual property

There are no special rules for determining the jurisdiction of Venezuelan courts in intellectual property cases. For this reason, general rules related to contractual and non-contractual obligations and those regarding real property are applicable.

6. Family matters

With regard to family law, the Bustamante Code has no special rules, because it classifies actions in personal obligations and real property without reference to family relationships. Only art 330 could be applied, as it provides that in the case of non-contentious proceedings, the courts of the place where the person who commences them has domicile will be competent, unless there is a voluntary submission or it is contrary to local law. Both the Hague Adoption Convention (art 14) and the Inter-American Return of Children Convention (art 6) recognize the habitual residence of the child (→Domicile, habitual residence and establishment) as their general criterion of jurisdiction.

According to the PILA, Venezuelan courts have jurisdiction to hear proceedings arising out of actions relating to the status of persons or family relations where, under the provisions of this statute, Venezuelan law governs the substance of the litigation, or where the parties expressly or impliedly submit to its jurisdiction, provided that the case has an effective connection with the country. Doctrine considers that it must be really factual circumstances connecting litigants with Venezuela, for example, the place of →marriage, the fact that the couple has been domiciled in Venezuela, has children in Venezuela or has property in Venezuela.

7. Succession

Article 327 Bustamante Code provides that the court of the place where the deceased was last domiciled will have jurisdiction in matters of →succession. The PILA, unlike the Bustamante Code, provides a general rule for all estates and their application, which is not limited to successions. Thus, art 41 provides that Venezuelan courts have jurisdiction when Venezuelan law governs the substance of the litigation, and when the property forming part of the estate is located in Venezuela.

Forum necessitatis

According to art 43 PILA, Venezuelan courts could order provisional protective measures for persons found within the territory of the republic in order to provide protection to those who, being temporarily in Venezuela, are in such a situation that justifies the provisional intervention of Venezuelan courts, although these courts have no jurisdiction to hear the merits of the case. In a similar sense, the Inter-American Return of Children Convention states an alternative forum for emergency jurisdiction, which allows the applicant to choose between the state in whose territory the wrongfully removed or retained child is located, and the state in which the wrongful act giving rise to the request occurred (art 6).

V. Basic principles of choice of law

1. General provisions

The Venezuelan system recognizes the distinction between the form and substance of the process regarding the applicable law. Form is governed by the lex fori regit processum principle (art 56 PILA; art 314 Bustamante Code), while substance is generally subject to the conflictual method, accompanied by the general concepts of private international law, which afford the judge discretionary powers to find equitable solutions. Additionally, the Venezuelan system recognizes the required application of mandatory rules of the forum (art 10 PILA; art 11.2 Inter-American Contracts Convention) and the consideration of mandatory rules of another state with which the contract has close connections (art 11.1 Inter-American Contracts Convention). Although the judge has some freedom to investigate which objective and subjective elements will be taken into account in assessing the connections, it is clear that the idea was to limit the search to those legal systems that are actually relevant to the contract.

The Venezuelan system accepts a double characterization (→Classification (characterization)), admitting the lex fori solution as p. 1general rule (art 6 Bustamante Code) and allowing in art 2 PILA the application of foreign law in accordance with its own principles. The statute also provides autonomous characterizations of the domicile (art 11), the domicile of married women (art 12), the domicile of minors and incapable persons (art 13), the domicile of officials (art 14) and the place of establishment for legal persons (art 20) (→Domicile, habitual residence and establishment).

Renvoi is admitted until the second degree, but other renvoi is not supported. In cases other than first and second-degree renvoi, the internal law of the state declared competent by the Venezuelan conflict rule should apply (art 4 PILA). This general rule does not apply to contracts (art 17 Inter-American Contracts Convention) or, according to some scholars, to →torts, forms of acts and matters relating to children. In any case, because of the protection of the objectives of the Venezuelan conflict rules, renvoi can play a fundamental role in determining the equitable solution in each individual case.

According to art 5 PILA, situations created in conformity with a foreign law must be recognized whenever that law is competent according to internationally accepted criteria. This rule improves the solution of art 8 Bustamante Code (law indicated by the conflict rule) and art 7 Inter-American Private International Law Convention. There are three limitations to this recognition, ie the ordre public, the exclusive competence of Venezuelan law and a breach of the objectives of Venezuelan conflict rules.

Regarding preliminary questions (→Incidental (preliminary) question), art 8 Inter-American Private International Law Convention and art 6 PILA give the judge discretion to choose between the application either of the conflict rule of the system governing the principal issue or of the forum’s conflict rule, always taking into account the equitable solution. According to art 9 Inter-American Private International Law Convention and art 7 PILA, when different laws are applicable to regulate various aspects of one relationship, they are to be applied harmoniously in order to attain the purposes pursued by each of such laws. Any difficulties that may be caused by the simultaneous application of these laws are to be resolved in light of the requirements of equity in each case.

As an exception to the application of foreign law, the ordre public is enshrined in almost all sources. With the exception of the Bustamante Code, in which the institution operates a priori, the Inter-American Conventions, the Hague Conventions and the PILA establish the non-application of foreign law only when their application will produce results manifestly incompatible with the essential principles of the Venezuelan ordre public.

The existence of an unknown institution or procedure authorizes the judge not to apply foreign law only when Venezuelan law does not have any analogous institutions or procedures (art 3 Inter-American Private International Law Convention; art 9 PILA). Finally, when the basic principles of the law of a state have been evaded fraudulently, the competent law will not be applied as foreign law. The competent authorities of each state determine the fraudulent intent of the interested parties (art 6 Inter-American Private International Law Convention).

2. Obligations

The Inter-American Contracts Convention and the PILA ensure the dominant role of →party autonomy (art 7 Inter-American Contracts Convention; art 29 PILA). Even the Bustamante Code, whose residual rule provides for the application of the common personal law and alternatively the law of the place of conclusion (art 186), accepts it to regulate contracts interpretation (art 185) and adhesion contracts (art 185). The →choice of law must be express or at least evident from the parties’ conduct and from the clauses of the contract considered as a whole. The choice of law may occur before, during or after conclusion of the contract, and can even change if it does not affect the formal validity of the contract or the rights of third parties (art 8 Inter-American Contracts Convention). Voluntary →dépeçage is admitted (art 7 Inter-American Contracts Convention) and there is no requirement of a necessary connection between the contract and the chosen law.

In absence of a valid indication, the law with which the contract is most closely connected is applicable. Judges will consider all objective and subjective elements of the contract and the general principles of international commercial law recognized by international organizations to determine such law (art 9 Inter-American Contracts Convention; art 30 PILA). Where appropriate, they also apply the guidelines, customs and principles of international commercial p. 1law, as well as generally accepted commercial usages and practices, in order to achieve the requirements of justice and equity in the particular case (arts 9 and 10 Inter-American Contracts Convention; arts 30 and 31 PILA). Based on these provisions, Venezuelan courts may apply the →lex mercatoria, when the parties so choose, in absence of election and to complement the applicable law (Banque Artesia Nederland, N.V. v Crop Banco Universal, C.A. TSJ/SCC6257).

With respect to non-contractual obligations, the Bustamante Code distinguishes between obligations derived from crimes or offences, which are subjected to the same law that governs the crime or offence (art 167), and those arising through fault or negligence, which are regulated by the law of the place where they occur (art 168). Because there is no reason to distinguish between non-contractual obligations according to whether they arise from a criminal offence, the PILA recognizes the importance of repairing the damage and unifies the treatment of torts by the lex loci delicti commissi rule. It thereby allows the victim to choose between the law of the place where harmful effects are produced and the law of the state where the cause of the tort originated (art 32).

Regarding civil liability for lawful acts, the Bustamante Code stipulates that the management of affairs is subject to the law of the place where they are made (art 220). Undue payment is regulated by the common personal law of the parties and, failing that, by the law of the place where payment is made (art 221). Other ‘quasi-contracts’ are governed by the law from which the legal concept derives (art 222). Article 33 PILA unifies the treatment of these institutions and provides for the application of the law of the place in which the act giving rise to the obligation occurs.

3. Property rights

The regulation of property rights (→Property and proprietary rights) is focused on the lex rei sitae principle. This is recognized by the Bustamante Code (arts 105 ss) and the PILA (art 27). Article 3 Statute on Time Sharing Contracts provides for application of the law of the place of location, regardless of the law governing the time-sharing contract. The displacement of movable property does not affect the rights validly constituted under the previously applicable law. Nevertheless, such rights may be asserted against third parties only after compliance with the requirements established by the law of the new location (art 28 PILA).

4. Corporations

Foreign corporations duly constituted are recognized in Venezuela (Protocol on Foreign Companies; art 3 Inter-American Commercial Companies Convention; art 252 Bustamante Code; art 356 CCom). Although the Bustamante Code has different regulations for various types of corporations (arts 31, 33 and 34), the general rule to determine the applicable law to their existence, capacity, operation and dissolution requires the application of the law of the place where they are constituted. This is understood as the place where the formal and substantive requirements for their creation are fulfilled (art 2 Inter-American Commercial Companies Convention; art 20 PILA). For the direct and indirect performance of the acts in pursuit of the company objects, commercial companies are subject to the law of the state in which they perform them (art 4 Inter-American Commercial Companies Convention).

There is no solution for insolvency. However, the Bustamante Code recognizes the principle of its unitary treatment (art 414) and provides rules for recognizing judgments on insolvency. Given this silence, the doctrine recommends using the law of the debtor’s domicile, because this is the connecting factor applicable in other cases of estates as →successions (art 34 PILA).

5. Intellectual property

In the absence of international treaties, intellectual property is subject to the local laws that secure it (art 115 Bustamante Code). Such mention can be understood as referring to the state of registration for industrial property and the state for which copyright protection is sought. Because of the silence of the PILA on this field, the rules on the law applicable to contracts and torts apply. Regarding copyright, the Statute of Copyright recognizes the protection of works published in Venezuela, or whose authors are Venezuelans or domiciled in Venezuela. Other works are considered foreign and their protection is left to international specific treaties. Absent such a treaty, Venezuelan rules must be applied (arts 125–128).

6. p. 1Family matters

As a general principle, the law of the domicile governs the capacity of natural persons (arts 7 and 27 Bustamante Code; art 16 PILA; →Capacity and emancipation). Domicile is characterized as habitual residence (art 11 PILA; →Domicile, habitual residence and establishment). This solution is projected onto all family relationships. Thus, the capacity to marry and the substantive requirements of →marriage are governed, for each of the contracting parties, by the law of their respective domicile (art 21 PILA). The Bustamante Code adds that the →lex fori governs obstacles to marriage, the form of consent, binding force of betrothal, opposition to marriage, the obligation to report impediments and the civil consequences of false report, the form of the preliminary proceedings and the competent authority to celebrate the marriage (art 38).

The effects of marriage are treated differently in the Bustamante Code and the PILA. Under the Bustamante Code, the lex personae governs personal effects (art 45) and patrimonial effects are governed by common personal law or, in its absence, by the law of the marital domicile (ont. 187). The PILA unifies both effects, subjecting them to the law of the common domicile of the spouses. If they have different domiciles, the law of the last common domicile applies. It also provides that prenuptial agreements, valid under a competent foreign law, may be recorded at any time in the respective Venezuelan Main Public Registry Office if it is desired that they produce effects in respect of bona fide third parties on real property situated in Venezuela (art 22).

Under art 52 Bustamante Code, the law of marital domicile regulates divorce and separation (→Divorce and personal separation), but their causes must be prior to the acquisition of such domicile, unless the personal law of the spouses authorizes it. The PILA provides a different connection, ie the law of the domicile of the spouse who brings the action. To prevent fraud, the change of domicile of the plaintiff produces effects only after one year after entry into a state with the intention of establishing habitual residence there (art 23). The PILA does not regulate the invalidity of marriage, and the Bustamante Code submits it to the law governing the requirement that motivates it (art 47).

The law of the child’s domicile governs filial relationships, as well as relations between parents and children (art 24 PILA). The child’s domicile is founded in its own habitual residence (art 13 PILA). However, the Bustamante Code sets out rules relating to various aspects of parenthood, with a strong element of ordre public and calls to personal law (arts 59–61, 63, 66, 68, 69, 71 and 72).

It should be mentioned that Venezuela is a party to the Hague Adoption Convention and the CBRV recognizes the principle of subsidiarity of international adoption (art 75). The Bustamante Code and the PILA support the application of the lex personae (arts 73 and 75–77 Bustamante Code; art 25 PILA). According to the PILA, the law of the domicile of the disabled person is applicable to guardianship and other institutions protecting disabled persons (art 26), and the Bustamante Code rules combine personal law with →public policy (arts 84–86 and 89–100). Furthermore, Venezuela is a party to the Inter-American Return of Children Convention, the Hague Child Abduction Convention and the UN Convention on the Rights of the Child.

7. Succession

Before the PILA, →succession was not expressly regulated in Venezuela, because the country reserved the general rule of art 144 Bustamante Code. Under art 34 PILA, successions are governed by the law of the domicile of the deceased, which ensures the unitary treatment of successions and avoids the fragmentation of the applicable law. In order to separately regulate various aspects of succession, the current Bustamante Code rules use both the lex personae as ordre public (arts 145–156 and 158–163). The PILA states two exceptions to art 34. First, descendants, forebears and the surviving spouse not legally separated as to property, may in any case exercise over property situated in Venezuela the right to the compulsory share accorded to them by Venezuelan law (art 35). Second, where under the governing law the succession property belongs to the state, or where heirs are non-existent or unknown, property situated in Venezuela passes to the Venezuelan nation (art 36).

VI. Recognition and enforcement of judgments

The Bolivian Agreement (art 7) and the Inter-American Foreign Judgments and Arbitral Awards Convention (art 6) determine that the lex fori governs the procedure for recognition of foreign judgments. The PILA provides that foreign judgments have effect in Venezuela whenever the requirements of art 53 are met. p. 1However, under art 55 PILA, in order to proceed with the enforcement of a foreign judgment, it must be declared executory by the TSJ through the exequatur procedure. For exequatur, the Civil Chamber of the TSJ is competent in contentious cases (art 850 CPC; art 28.2 Statute on TSJ (Ley Orgánica del Tribunal Supremo de Justicia, Special Official Gazette No 5.991, 29 July 2010)) and higher courts of the place where the judgment is to be enforced for non-contentious cases (art 856 CPC). Recently, constitutional case law has created the competence of the Social Chamber of the TSJ for cases of foreign judgements that deal with matters reulated by the statute protecting the children.

Exequatur is a special procedure regulated by the CPC (arts 852–858). The Inter-American Foreign Judgments and Arbitral Awards Convention (art 2), the Bolivian Agreement (art 5) and the PILA (art 53) provide requirements for the recognition of foreign judgments. In general, the extraterritorial efficacy of foreign judgments requires that: (i) the judgments have been rendered in matters of private juridical relationships; (ii) they have effect as res judicata; (iii) they do not relate to rights in rem over →immovable property situated in Venezuela, nor has the exclusive jurisdiction corresponding to the Venezuelan courts been ousted; (iv) they must have been issued by courts that have jurisdiction according to the Venezuelan system; (v) the defendant has been duly served and afforded the procedural guarantees which assure a reasonable possibility of defence; (vi) the judgment must not be incompatible with a prior judgment having effect as res judicata; and (vii) there is no action concerning the same object and between the same parties initiated prior to the date of the foreign judgment pending in Venezuela. In addition, the Venezuelan system allows the partial efficacy of foreign judgments which cannot have full efficacy (art 4 Inter-American Foreign Judgments and Arbitral Awards Convention; art 54 PILA).

VII. Arbitration

Venezuela recognizes the constitutionality of arbitration (art 258 CBRV) and is part of the New York Convention and the Inter-American International Commercial Arbitration Convention. The Statute of Commercial Arbitration (Ley de Arbitraje Comercial, Official Gazette No 36.430, 7 April 1998), which is partially based on the UNCITRAL Arbitration Model Law (United Nations Commission on International Trade Law, UNCITRAL Model Law on International Commercial Arbitration as adopted on 21 June 1985 and as amended on 7 July 2006, UN Doc A/40/17 and A/61/17; →Arbitration, (UNCITRAL) Model Law), is the principal source on arbitration. However, in adapting it to the Venezuelan system, the regulation of international arbitration became unclear. For example, in terms of the applicable law to the merits of the arbitration, art 8 merely provides that arbitrators will always consider the terms of the contract and commercial uses and customs. This gap is exacerbated since the PILA excludes arbitration from its scope of application, except with respect to non-derogable jurisdiction (art 62). Most scholars consider →party autonomy as taking priority, in the sense of observing the law chosen by the parties, even when these rules belong to the →lex mercatoria. This statute eliminates the exequatur for the foreign award and only requires the recognition by the competent court before the execution (arts 48–49).

Claudia Madrid Martínez

Literature

  • Víctor Hugo Guerra Hernández and others (eds), Liber Amicorum, Homenaje a la Obra Científica y Académica de la Profesora Tatiana B de Maekelt (Universidad Central de Venezuela Fundación Roberto Goldschmidt 2001);

  • Víctor Hugo Guerra Hernández, Claudia Madrid Martínez and Yaritza Pérez Pacheco (eds), Estudios de Derecho internacional privado, Homenaje a Tatiana Maekelt (Universidad Católica Andrés Bello 2012);

  • Claudia Madrid Martínez (ed), La empresa y sus negocios de carácter internacional (Academia de Ciencias Políticas y Sociales 2011);

  • Tatiana Maekelt, Teoría general de Derecho internacional privado (2nd edn, Academia de Ciencias Políticas y Sociales 2010);

  • Tatiana Maekelt (ed), Derecho procesal civil internacional (Academia de Ciencias Políticas y Sociales and Universidad Central de Venezuela 2010);

  • Tatiana Maekelt and others (eds), Derecho internacional privado. Materiales para el estudio de la carrera de Derecho (3rd edn, Universidad Central de Venezuela 2005);

  • Tatiana Maekelt and others (eds), Material de Clase para Derecho internacional privado (5th edn, Universidad Central de Venezuela 2005);

  • Tatiana Maekelt, Ivette Esis Villarroel and Carla Resende (eds), Ley de Derecho Internacional Privado comentadap. 1 (Universidad Central de Venezuela 2005);

  • Tatiana Maekelt, Ley venezolana de Derecho internacional privado. Tres años de su vigencia (Academia de Ciencias Políticas y Sociales 2002);

  • Fernando Parra-Aranguren (ed), Ley de Derecho internacional privado. Libro Homenaje a Gonzalo Parra Aranguren (Tribunal Supremo de Justicia 2001–2002);

  • Fernando Parra-Aranguren (ed), Temas de Derecho internacional privado. Libro Homenaje a Juan María Rouvier (Tribunal Supremo de Justicia 2003).