Contract Choice of law in the Americas.
Friedrich K. Juenger*
I. HISTORICAL EVOLUTION: A BRIEF COMPARATIVE OVERVIEW
In the Americas, the question of what law applies to contracts that cross national frontiers may charitably be described as unsettled. Compared to the treatment of the subject in European private international law, on this Continent the doctrinal, legislative and judicial responses to the problem were, until fairly recently, seriously underdeveloped.
Latín America
Toe lodestar of contract conflicts, i.e. the principie of party autonomy,1 has long been2 controversial in Latín-American legal literature and practice. This principie is of course irreconcilable with the classical Savignian approach, which authors and courts throug-hout the subcontinent still profess to follow.3 Such doctrinal scruples, however, did not stop European courts from adopting it for the simple reason that party autonomy is indispensable for the conduct of international trade and commerce. Indeed, it is difficult to envision a safe and orderly conduct of business across national borders -in Kozolchyk’s terms a «jurídica! road» on which the free flow of goods and services can proceed-4wit- hout choice-of-la,v and forum-selection or arbitration clauses, which alleviate problems caused by the diversity of legal and judicial systems that threatens the legal security of transnational business.
Not only has party autonomy been a controversia! concept in Latin-American law and practice, but the rules developed to detrmine which law applies in the absence of an effective choice by the parties were w1satisfactory. Under the spell of doctrines imported from Europe, Latin-American legislatures, courts and legal writers favored mechanical precepts that invoked the lex loci contractus5 or the lex loci solutionis,6 rules that are as implausible as they are impractical.7 Such simple-minded approaches to the choice-of law problem did little to safeguard commercial transactions against the international risk that results from the fact that procedural and substantive laws differ from one state to the next.
What, then, accounts for the backwardness of Latin-American theory and practice? Toe failure of Latin-American nations to establish, until quite recently, free trade among each other bears no doubt some responsibility for the underdeveloped state of private in ternational law in the field of contracts: the choice-of-law rules simply did not matter much, because there were few occasions to apply them. In addition, statist, socialist and protectionist ideas used to hold sway, as did the fear of foreign intervention reflected in the Calvo clause and worries about arbitration. For these reasons, despite a widespread distrust of courts, a tradition of alternative dispute resolution could not develop on the sub-continent.8 Apart from the lack of economic conditions that could serve as the crucible for testing private international law approaches, premature attempts at regional codification of choice–0f-law rules9 bear some responsibility for the underdeveloped state of the law on contract conflicts. For reasons yet to be fully explained, the 1889 Montevideo.
Private International Law Convention rejected -despite the widespread acceptance of Savigny’s teachings in Latin America10 -the principie of party autonomy.11 While sorne Latín American scholars favored the principie. until relatively recent times most -including even the distinguished Uruguayan jurist Quintín Alfonsín-12 disapproved of party autonomy on positivistic and conceptualistic grounds.
B. The United States
Strangely enough, scholarly opinion in the United States -a large common market in which individuals. corporations and transactions have long benefitted from enormous mobility- used to be hardly more enlightened than that prevailing in Latin America. A highly influential legal educator, Joseph Beale. was no less doctrinarian than his sout hem counterparts. Toe Harvard professor, who was the Reporter of the First Conflicts Restatement13 and the author of a three-volume treatise on the conflict of laws,14 maintained that prívate parties lack the power to «do the legislative act»15 of substituting their decision on what law should apply for that of the legislature, and that such power would be «theoretically indefensible.»16 He wrote:
The question whether a contrae! is valid . .. can on general principies be determined by no other law than . .. by the law of the place of contracting.… If.… the law of the place where the agreement is made annexes no legal obligation to it, there is no other law which has power to do so.17
It took the American judiciary considerable time to extricate itself from the jurisprudential fetters Beale had forged, but ultimately most American courts rejected his heavy handed dogmatism. Emulating. wittingly or unwittingly. the English notion of the «proper law of contract.»18 they chose a more flexible and fluid connecting factor than the place of making. namely the law of the state with which the contrae! has ú1e «closest connection»19 or, as it was ultimately phrased in ú1e Second Conflicts Restatement the «most significan! relationship. «20 At the same time. American judges also followed their English colleagues in recognizing party autonomy.21 That principie then found legislative recognition in the Uniforrn Commercial Code22and it was incorporated in the Second Conflicts Restatement.23
To this day, however, sorne courts in the United States still apply the lex loci contractus rule24 a remarkable anachronism in light of the fact that hard and fast contract choice-of-law rules have gane out of style in the rest of the world. No less remarkable is the fact tllat iliere are scholars who, far doctrinal reasons, still question the power of prívate parties to stipulate Úle law tlley wish to control ilieir contract.25 The explanation far such backwardness lies in the fact that many of them fallow the teachings of Brainerd Currie. Currie, who was no less positivistic Úlan Beale, whom he derided. Currie had his conflicts universe revolve around govemmental interests.26 That notion is obviously at loggerheads with the idea that prívate parties, railier than the state, determine which law should govem their agreement.27
While Beale’s notion that prívate parties lack autonomy to submit tlleir contract to a law of their choosing lingers on to our days, the idea of procedural autonomy, i.e. the parties · power to agree on ilie forum that is to hear their disputes, developed at a quicker pace. at least as far as arbitral fara are concerned. In 1925 the United States Congress passed the Federal Arbitration Act. and even before then Trcaties of Friendship. Commerce and Navigation concluded with foreign nations included proúsions on arbitration. In addition. the United States has ratified the United Nations Convention on Recognition and Enforcement of Foreign Arbitral A,,ards and thc Inter-American Convention on In temational Conunercial Arbitration. It took the judiciary longer also to uphold fomm-selection clauses (which had 01iginally been considered to violate public policy), but once the United States Supreme Court, in the landmark Bremen case,28 courts soon followed suit.
C. Europe
In marked contrast to the Americas (otlier tlian Canada, whose Provinces largely follo wed the English model), Europe has long recognized progressive choice-of-law approa ches that accord private parties tl1e freedom to select the law they wish and, if the parties fail to make a choice, has used flexible instead of rigid connecting factors. As early as the 17th century, Dumoulin espoused not only the notion of party autonomy but also the idea of a «pactum tacitum» that would control should the parties have failed to avail themselves of their power to designate the applicable law.29 In England, Lord Mansfield later proclaimed a principie very similar to the one advocated by Dumoulin, namely that a contract should be governed by the law of the state with a view to which it was made.30 The notion of an «implied intent» spread to other common law countries, including the United States,31 before Beale’s regressive dogma triumphed over common sense.
Thus, the foundation was laid, both in England and on the Continent, for the recogni tion of party autonomy as the fundamental contra.et choice-of-law principie. As a conco mitant. the rule used to prevail that, in the absence of an explicit choice of the applicable law, the parties’ presumed wishes were to be respected.32 However, under the spell of the traditional multilateral approach legal writers began to look for objective connecting factors.33 Accordingly, the term «proper law» carne to mean (although courts often failed neatly to draw this distinction) not a fictitious subjective intent, but rather an objective grouping of contacts that would detennine a contract’s «seat» or «center of gravity.»34 In Germany, for instance although courts spoke of the parties· «hypothetical intent» they actually meant what is now called the «closest connection.»35
In this fashion, European countries (with some exceptions)36 developed modero approaches that were based on party autonomy and flexible connecting factors.
Once Westem European nations wlited under the umbrella of what is now called tlle European Union, they felt a need for conflict of laws conventions, which were thought to promete regional integration. Having experienced a resounding success with codifying rules of intemational civil procedure in the Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, these countries also began to tackle choice of law. Since the private intemational law rules on contracts of the European Union’s member states were fairly similar it appeared logical to start with this subject, which also commended itself because of its commercial importance. These efforts produced the 1980 Rome Convention on the Law Applicable to Contractual Obligations.37
Article 3 of the Rome Convention recognizes the principie of party autonomy, with out ifs and buts, except as regards certain agreements between parties of disparate bar gaining power, i.e. consumer and employment contracts.38 In the absence of a valid selection, article 4 -following the English «proper law» idea- invokes the law having the «closest connection» (or, as the Second Restatement calls it, the «most significant rela tionship») with the contract. Realizing, however, that this connecting factor is somewhat vague, the European drafters sought to achieve a greater degree of certainty, predict ability and wüformity of result by laying down a number of presumptions. Toe most im portant of these is contained in article 4(2), first sentence, according to which a contract is deemed to have its closest cormection with the state in which the party rendering the «characteristic performance» has its principal place of business.
Article 7 of the Rome Convention recognizes that certain rules of law represent a parti.cularly strong public policy that deserves application notwithstanding the parties’ choice of law or normally applicable choice-of-law rules. Tims the unilateralist concept of «norms of inunediate application» or. to use the preferred French e\.l)ression, «lois de police»,39 was incorporated into the Convention to modify its multilateral rules and the rules on autonomy. According to article 7(2). the Convention does not override forum nonus that «are mandatory irrespective of the law otherwise applicable»: article 7(1) aut horizes the application of such norms of a third state «with which the situation has a clo se connection.»
II. ARBITRATION AND THE BURGEONING LEX MERCATORIA
A. The Growth of Arbitration
As prívate international law rules and approaches were being modernized in response to the exigencies of an ever-growing world economy, a phenomenon evolved that undercut traditional conflict of laws notions. 111e desire of commercial enterprises to free themselves from the constraints of frequently inadequate national legislation and adjudication prompted an upsurge in international arbitration. By submitting their disputes to panels of private decisionmakers -usually composed of arbitrators from different countries- rat her than litigating them in a national court, prívate parties were able to denationalize their agreements and tlhe resolution of the disputes their contractual relationships engendered.
Ironically, large-scale recourse to this alternative means of doing justice between par ties to an international transaction was prompted in part by the practice of socialist countries. These nations had taken jurisdiction in commercial matters from ordinary courts and set up special arbitral bodies to handle domestic and international contract disputes between and with state-owned enterprises. Eschewing capitalism in their economies, they nevertheless relied on this capitalist device to promote much-needed intematior.al trade. In this manner, arbitration became a truly world-wide phenomenon tl1at brought together enterprises from nations following entirely different social and economic policies.
B. The Law Applied by Arbitrators
Toe ever-increasing recourse to arbitration as the preferred means for dealing with inter national commercial cases enhanced the importance of institutionalized altrnative dispute resolution administered by such bodies as the Intemational Chamber of Commerce in París and the London Court of Arbitration. Socialist countries had their own institutions, such as the former Soviet Union’s Moscow Chamber of Commerce. Dedicated to organizing and improving dispute resolution, these institutions furthered the development standardization and codification of arbitration procedure.
When arbitration became the customary means of handling commercial disputes. substantive law began to acerete in the interstices of arbitral proceedings. Perceptive scholars noticed that arbitrators tend to eschew the technical refinements and niceties that encumber national legal systems. including their choice-of-law rules. in favor of broader principies geared to the realities of an international market place. Perhaps because of the French Cour de cassation’s early recognition of the peculiar nature of international contracts.40 it was French scholars -especially Berthold Goldman-41 who first wrote about the rebirth of a supranational law merchant and showed that arbitral practice lends support to the ideas developed earlier by Daniel Josephus Jitta42 and Quintín Alfonsín43 about a world Jaw of commerce.
Increasing practical experience with arbitration and scholarly writing on the subject helped modernize national provisions, as well as the rules of institutional arbitral bodies, on the law to be applied by arbitrators. Some of these modern rules simply provide that, absent a choice by the parties, arbitrators can look to any choice-of-law rules they deem desirable to resolve a dispute.44 In practice, such provisions enable the arbitral panel first to settle on an appropriate substantive law of a particular state or nation, and then to find the choice-of-law rules that invoke this law. Toe arbitrators’ freedom to choose whatever law they wish is further facilitated by loose connecting factors such as the «closest connection.» Sorne arbitration rules are yet more liberal: they do not even require the pretext of pretending first to select some national choice-of-law rules; rather, with commendable forthrightness they eliminate this intenmediate step and allow arbitrators to apply directly whatever substantive law suits them.45
C. The Impad of Arbitration on Choice of Law
These developments in the field of arbitration were bound to have an impact on the con flict of laws. On the one hand, current arbitral experience suggests that, given the free dom national statutes and intcmational rules grIBt arbitrators with respect to the selection of the applicable law. choice-of-law rules have become rather less important in practice than many teachers of the subject may think. On the other hand, this experience directs attention to the phenomenon of denationalizing dispute resolution and poses the question whether the substantive law that governs transnational disputes should not also be denationalized. Traditional conflict of laws tenets rooted as they are in statism and positivism, seem out of tune with our times when commercial practices are being freed from state interference. Liberalization, as well as regional integration, promotes the search for more rational and expedient laws and procedures to govern transnational commercial transactions.
III. THE MEXICO CITY CONVENTION
A. A New Inter-American Approach to Contract Choice of Law
As noted earlier, on this Continent approaches to the problems posed to international tra de and commerce by the diversity of national laws progressed at a slower pace than in Europe. However, in the Western Hemisphere as well awareness of the fact that legal rules must take into account the realities of a modern world market has prompted a reassessment of private intemational law tenets. Hence, there were good reasons for putting contract choice of law on the agenda of the Fifth Inter-American Specialized Conference on Private International Law,46 which took place in Mexico City in March of 1994 under the chairmanship of the Mexican jurist Lic. José Luis Siqueiros. Committee No. 1, which dealt with the topic, was chaired by Dr. Parra-Aranguren from Venezuela. The Commit tee’s deliberations focused on a draft prepared by the Inter-American Juridical Committee, which had been revised at a meeting of experts under the auspices of the National Center for International Trade in Tucson, Arizona.
B. Party Autonomy
The Inter-American Juridical Committee’s draft was largely based on the Rome Convention, a critical analysis of whose virtues and defects helped Committee No. 1 formulate its own set of ínter-American choice-of-law rules. Following the European example, the Mexico City Convention47 made party autonomy the lodestar of ínter-American contract choice of law. This fundamental decision -0ne hopes- will end once and for ali, the sterile academic discussion of whether and how this principle can be reconciled with the classi cal multilateral choice-of-law system (it cannot). Like its European counterpart, the Me xico City Convention generously endorses the parties’ freedom of choice. Article 7(1) allows them to select a neutral Iaw, one that has no contacts whatsoever with their con tract. It also condones contractual dépegage and pemtits the parties to change their initial choice (or non-choice) ofthe applicable law by a subsequent agreement.
Departing from the European model, the Mexico City Convention does not enumera te specific categories of protective laws that cannot be stipulated away by me.’U1s of a choice-of-law clause. Instead of setting forth narrowly circumscribed choice-of-law pri vileges for various categories of weaker parties, as the Rome Convention does, article 11 of the Mexico City Convention relies on a general clause that is broad enough to safe guard the protection of consumers and employees, as well as other parties, against over reaching by the enterprises with which they deal. Allowing the decisionmaker to invoke forum as well as foreign «rules of immediate application» (or, as the Convention ca.lis them, «rules of public policy»), which take precedence over the stipulated law, suffi ciently protects these weaker parties against abuses of superior bargaining power.
In marked contrast to the Rome Convention,48 the Mexico City Convention allows the contracting parties to choose a non-national law, such as the !ex mercatoria or its codified version, the UNIDROIT Principies of lntemational Commercial Contracts.49 Such freedom of choice is better attuned to modem commercial realities than the Rome Convention’s strangely retrogressive insistence on limiting the parties’ selection to positive laws. Why should individuals or enterprises who choose to arbitrate their differen ces be allowed to enjoy the benefit of selecting a body of rules, drafted by a distinguished group of experts, which are specifically designed to meet the needs of in ternational transactions, whereas parties who choose to litigare are relegated to national laws? It is certainly difficult to understand what interests (other tllan those of a doctrinal nature) would be served by impeding the parties from denationalizing their agreement in tltis fashion.
C. Law Governing in the Absence of a Contractual Choice
The Mexico City Convention’s provisions on the law governing in the absence of an effective choice by the parties also differ from those of its European counterpart. Both conventions rely on a «grouping-of-contacts» test that invokes the law having «the closest connection» with contract. But once again the Mexico City Convention has a definite teleological bent. First of all, following a tradition dating back to Dumoulin’s notion of a pactum tacitum,50 article 9(2) of the Mex.ico City Convention expressly allows the decisionmaker to look at subjective as well as objective factors. Thus. this provision grants t11e judge or arbitrator a wider leeway of discretion t11an the Rome Convention does,51 especially in the event that the parties were unrepresented (or poorly represented) by counsel and failed to make the selection they ought to have made. It also favors the law that best effectuates the contracting parties’ objectives. Since they could hardly have intended to enter into an invalid contract, this provision amounts to a rule of validation.
Secondly, the drafters deliberately rejected the notion of further objectifying the choice of the applicable law by means of a «characteristic performance» test. During the deliberations in Mexico City it became clear that this Gordian knot-cutter does not represent sound policy. In many instances it is doubtful which particular performance is the characteristic one, as is true, e.g., in barter transactions, contracts with publishers and distributorship agreements.52 Moreover, in complex situations (as, for instance, corporate acquisitions or turnkey projects) the simplistic «solution» of exalting one performance over another as the «most characteristic» does not work. Worse yet, this key concept of the Rome Convention confers a capricious choice-of-law privilege by invoking the home-state law of those who enjoy particular expertise because they habitually supply goods and services in international transactions.53
Yet, the Mexico City Convention does not rely exclusively on the «closest connection» test. Rather, article 9(1), second sentence, permits the decisionmaker, in determining with which jurisdiction a contract is most closely connected, to take into account «general principies of international commercial law recognized by international organizations.» This formula can of course be faulted for jumbling together wholly incompatible notions -the traditional «seat-of-t11e-relationship» idea and the new law merchant. Toe incongruous admixture of discordant elements reflects a compromise that became necessary upon the rejection of the American delegation’s proposal to apply the UNIDROIT principies in the absence of a valid designation of the applicable law,54 Article 9 as it now stands signals to the decisionmaker the need to select that law which best accords with substantial justice and the exigencies of international commerce.55 Sophisticated courts and arbitrators can be expected to prefer principies elaborated by a prestigious international group of experts to idiosyncratic national rules. Toe parties certainly han no reason to complain if their failure to choose invokes a law of superior quality.
IV. CONCLUSIONS
On the whole, it seems. inter-America.n contract conflicts Jaw -a backwater until quite recently- is beginning to meet international standards. Certainly, the collaborative effort of jurists from this Hemisphere that the Mexico City Convention enshrines need not fear comparison with the Rome Convention. CIDIP-V provided a much needed ímpetus to move away from the outdated notions that used to prevail on this Continent until quite
recently. Now that Mexico and Venezuela have ratified the Mexico City Convention, it
has entered into effect56 and one should hope that other American nations will follow their example. But even if only a small group of nations should choose to ratify it, the Mexico City Convention nevertheless sets standards for national courts and legislators. It stands as a helpful reminder of how to deal with the question of choice of law in international contracts, a question that is becoming ever more pressing in light of the movements towards economic integration on this Continent.57
The Mexico City Convention may also signal a new phase of ínter-American cooperation in prívate international law. Professor Samtleben of the Hamburg Max-Planck Institute once observed that
in several CIDIP conventions one notices the influence of other international texts that originated outside the region, …which could lead the observer to reflect about the existence and justification of in ter-American codification as an
independent process.58
Similarly. Professor Alejandro Garro noted that compacts negotiated in Toe Hague «have significantly influenced sorne of the Inter-American conventions»59 and opines that such imitation «indicates the need to reexamine the Latin American regional approach. «60 A French author concluded that American codifiers depend on European doctrinal syntheses that may not respond well to the realities of their home countries.61 He, however apparently believes that such subservience is a good thing, because he deplores the «faible marge d’ autonomie»62 CIDIP-V wrested from Europe by not adopting a carbon copy of the Rome Convention and by giving new life to the «somewhat forgotten
work»63 of Quintín Alfonsin Rather than lament this Continent’s emancipation from European tutelage, however, lawyers and business people ought to welcome the fact that CIDIP-V seized the opportunity presented by the task of codifying inter-American contract choice of law to reject
obsolete approaches64 and, in their stead, to embrace the UNIDROIT Principies of International Commercial Contracts, the lex mercatoria of our times65 Though they paid respect to the Rome Convention by using it as a model, the Mexico City Convention’s drafters put the comparative method to good advantage; instead of merely copying, they
created a superior product.66 The experience gathered in Mexico City augurs well for future inter-American endeavors designed to improve the law of international transactions. Conceivably, the result of this Hemisphere’s codificatory labors may even commend itself to others by virtue of its intrinsic quality.
* Edward L. Barrett, ;r., Professor ofLaw, University ofCalifornia a1 Davis. This paper was presented on November 7, 1996, in Valencia, Venezuela, at an Inter-American Congress sponsored by the International Institute for the Unification of Prívate Law (UNIDROIT), the Center of International Studies of Law, Faculty of Law, Carabobo University, the Venezuelan Ministry of Foreign Relations, the Inter-American Develop- ment Bank and the State of Carabobo. Toe paper will appear, together with the others presented at the Valencia Congress, in a vo!ume to be published by UNIDROIT.
1 On party autonomy see generally Friedrich K. Juenger, Choice of Law ami Multistate Justice 17, 54-56 216- 20 (1993).
2 See, e.g., Cecilia Fresnedo de Aguirre, La autonomía de la voluntad en la contratación intemacional ( 1991 ); Emst Rabel, The Conflict of Laws 372-75 (2d ed. 1960); Ruben B. Santos Belandro, El derecho aplicable a los contratos internacionales 37-54 (1996).
3 See, e.g., Antonio Boggiano, Derecho intemacional privado 35-37, 90-91, 96 (2d ed. 1983); Haroldo Texeiro V alladao, Derecho intemacional privado 62-63 (Leonel Pereznieto Castro transI. 1987); see also Gonzalo Parra-Aranguren, «El sistema de derecho romano actual de Federico Carlos de Savigny y sus antecedentes doctrinarios en Alemania», 1994, Revista de la Facultad de Derecho, Universidad Católica Andrés 13ello 127, 195-225 (1994).
4 Boris Kozolchyk, El derecho comercial ante el libre comercio y el desarrollo económico 17 (1996).
5 For references see Rabel, supra note 2, a1 448, 449.
6 For references see id. at 465 n. 177; Santos Belandro, supra note 2, at 44-47.
7 See Rabel, supra note 2, at 462-64, 474-75.
8 See Ruben B. Santos Belandro, Arbitraje comercial i11temacio11al 9-10 (1988); José Luis Siqueiros, «Arbitral Autonomy and National Sovereign Authority in Latin America», in Le:x Mercatoria a11d Arbitra/ion 183, 183-84 (Thomas E. Carbonneau ed. 1990); Lionel M. Summers, «Prívate Versus State Arbitration in Latin America». 4 Cal. W Jnt’l L. J. 121 (1973). As to curren! Latín-American law see Siqueiros id. at 185-93; Alejandro M. Garro, «Toe UNCITRAL Model Law and the 1988 Spanish Arbitration Act: A Model for Reform in Central America», in Commerrcial a11d Labor Arbitratio11 i11 Central America 23 (1991); Horacio A. Grigera Naón, «Arbitration in Latin America: Owrcoming Traditional Hostility», 22 Interer-American L. Rev. 203 (1991). Concerning initiatives taken by the Organization of American States see Enrique Lagos & Jeannette Tramhel, «An Overview of Modernization Projects-A Perspective from the Organization of American Staks», 13J.Int’lArb.117(1996).
9 On Latin American regional codification see generally Diego P. Fernández Arroyo, La codificación del derecho i11temacio11al e11 América Latina ( 1994); Jürgen Samtleben, lntematio11ales Privatrecht i11 Latei11amerika (1979); Tatiana B. de Maekelt, General R11lef¡ of Private Intematio11al Law in the Americas New Approach. 177 Rec. des Coun 193, 221-36 (1982-IV); Didicr Opertti Badan, «L’oeuvre de la CIDIP dans le contexte du droit international privé actuel», in E Pluribus Unurn: Liber Amicorum A.l. Droz 269 (1996); Gonzalo Parra-Aranguren, «La primera etapa de los tratados sobre derecho internacional privado en América (1826-1940)», 1996 Revista de la Facultad de Cie11ciar Jurídicas y Políticas, Universidad Central de Venezuela 59 (1996); Gonzalo Parra-Aranguren, «La segunda etapa d.: los tratados sobre Derecho Internacional Privado en América (1945-1995)», Revista de la Facultad de Ciencias Juridicas y Políticm, Universidad Central de Venezuela 73 (1996) [hereinafter Parra-Aranguren. La segunda etapaJ; José Luis Siqueiros, «El aporte del sistema interarnericano al desarrollo del Derecho Internacional PriYado», in Revista Mexicana de De recho Intemacional Privado 33 (1996).
10 See supra note 3 and ac·cornpanying kxt.
11 See Fresn.edo de Aguirre. supra note 2. at 64-65; Santos Belandro. supra note 2, at 42-44.
12 See Quintín Alfonsin, Régimen internacional de contratos 13-27 (1950).
13 Restatement of Conflict of Laws (1934).
14 Juseph H. Beale. A Treatise on the Conflict of Laws (1935).
15 2 Beale id. at 1079.
16 Id. at 1083.
17 Id at 1091.
18 See Juenger. supra note 1, at 57.
19 See Auten v. Auten, 124 N.E.2d 99. 102 (N.Y. 1954).
20 See R estatement (Second) of Conflict of Laws § 188(1) (197 l) (contract choice of law absent an effedive choice by the parties ).
21 See. e.g., Siegelman v. Cunard White Star Ltd., 221 F.2d 189 (2d Cir. 1955); Overseas Trading Co. v. United States. 159 F. Supp. 382 (Ct. CI. 1958).
22 U.C. C § 1-105(1).
23 Restatement (Second) of Conílict of Laws § 187 (1971).
24 For a recent list of states that still follow the lex loci contractus rule see Symeon C. Symeonidcs. «Choice of Law in the American Courts in 1995 A Year in Review», 44Am. J. Comp. L. 181, 197-98 (1996).
25 See Russell J. Weintraub. Com111e111a1y 011 the Conflict of Laws 371-77 (3d ed. 1986); Patrick J. Borchers, «Toe lntemationalization of Contractual Conflicts Law», Appendices A-E. 28 Vand. J. Transnata I L. 421. 445-86 ( l 995)(lctters by Larr; Kramer and Friedrich K Juenger).
26 See Juenger. supra note l. al 98-l 03.
27 See Brainerd Currie, Se/ected Essays 011 the Co11f/ic1 of Laws 103 (1963) (applying the law in tended by the parties would sub\’e rt state interests).
28 The Bremen v. Zapata on:shore Co., 407 C.S. 1 (1972).
29 See Juenger, supra note 1, at 17.
30 Robin son v. Bland. 97 Eng. Rep. 717. In Lord \!anslield’s words. «Toe law ‘ofthe place can never be the rule where the transaction is entered into with an express view to the law of another country as the rule by which it is to he govemed.» Id. at 718. See also 96 Eng. Rcp. at 141.’
31 See Pritchard v. Norton. 106 l’.S.124, 136 (1882): cf Wayman v. Southard. 23 U.S. (JO \Vheat.) l. 48 (1825 Marshall. C.J.. dictum).
32 See Pritchard, 106 U.S. at 137.
33 See Juenger, supra note l. at 26-27. 56-57.
34 See id. At 57.
35 See, e.g., BGHZ 61, 221, 223: BGH 44, 183, 186.
36 For instance, the former ltalian contlicts statute referred to (in addition to the parties’ intent) the parties common nationality as well as the /ex loci co11tractus. See 1942 Civil Code Preliminarv Provisions art. 25 (1).
37 See generally Contract Conflicts (P. 1′!. North ed. 1982); Juenger, «La Convención Europea sobre el Derecho Aplicable a las Obligaciones Contractuales: Algunas observaciones críticas desde la perspectiva estadounidense», 14 Jurídica 197 (1982).
38 See Rome Conwntion articles 5 (consumer contracts) and 6 (individual employment contracts). These provisions do not invalidate choice-ot:law clauses: they merely provide that such clauses cannot deprive weaker parties of the protection that their home-state law (consumers) or the otherwise applicable law (employees) pnwide.
39 See Juenger, supra note 1, at 81-82.
40 See Messageries Maritimes. Cass. civ., 21 June 1950. D. Jur. 1951, 749.
41 See Berthold Goldman, Lex mercatoria, 3 Forum Internationale (1983); Berthold Goldman, «La lex mercatoria dans les contrats et l’arbitrage intemationaux», 106 Clunel 475 (1979); Fricdrich K. Juenger, «American Cont1icts Scholarship and the New Law Merchant», 28 Vm1d J. Transnat’l L. 487 (1995). For comments by Latín-American authors see Horacio A Grigera Naón, Choice-of-Law Problems in Intematio11a/ Commercial Arbitratio11 26-34. 285-91 (1992): Leonel Pereznieto Castro. Derecho /11temacio11al Pril’ado 85-87. l 53-56 (6th ed. 1995): Santos Belandro. supra note 2. at 69-72. See generally. Lex Mercaloria and Arbitratio11 (Thomas E. Carbonneau ed. 1990).
42 See Daniel Josephus Jitta. La méthode du droit i11temacio11a/ pri,·é 44, 50-51922 l ( l 890).
43 See Quintín Alfonsin. Teoría del Derecho Privado Internacional 22 (1995).
44 See UNCITRAL Arbitration Rules art. 33 (1), second sentence: UNCITRAL Model Law on International Commercial Arbitration art. 26(2): lnternational Chamber of Commerce Arbitration Rules art. 13(3).
45 See C Pr. Civ. art. 1496 (France): Cód. Com., art. 1445(2) (México).
46 Concerning CIDIP-V see generally Diego P. Fernández Arroyo, «La Convention interaméricaine sur la loi applicable aux contrats intemationaux: certains chemains conduisent au-delá de Rome», 84 Rev. crit. d.i.p. 178 (1995); Pedro-Pablo Miralles Sangro, «La C.l.D.I.P.-V (l’lféxico 1994): una nueva contribución al Derécho Internacional Privado», 5 Boletín de la Facultad de Derecho (Universidad de Educación a Distancia) 101 (1993-94): Gonzalo Parra-Aranguren. «The fiflh Inter-Américan Specialized Conference on Prívate International Law», in E Pluribus· Unum: Liber Amicorum. Georges A.L. Droz 299 (1996).
47 Concerning the Mexico City Convention see generally Fernández Arroyo. supra note 46: Friedrich K. Juenger, «The Inter-American Convention on the Law Applicable to lntemational Contracts: Some Highlights and Comparisons», 42 Am. J. Comp. L. 381 (1994); Gonzalo Parra-Aranguren, supra note 46, at 305-12. 319-20; Santos Belandro, supra note 2, at 9-146.
48 See Derecho del comercio Internacional 275 (José Carlos Femández Rozas ed. 1996); Paul Lagarde. «Le nouveau droit international privé des contrats aprés l ‘cntrée en vigeur de la Convention de Rome du 19 juin 1980», 80 Rev. crit. di.p. 287. 300-01 (1991); Santos Belandro, supra note 2, at 66-67. For a fuller discussion ofthis point see Ole Lando. «Sorne lssues Relating to the Law Applicable to Contractual Ohligations». 7 King´s C. L. J. 55. 60-65 1996.
49 See Parra-Aranguren, supra note 46. at 308 & n.22; Santos Belandro, supra note 2. at 66-69. A Spanish commentator, however. questions whether the Mexico City Convention can mean what it says and was meant to sav Femández Arrovo, supra note 46. at 182-83. Apart from misinterpreting the intent of article 17 (which was to exclude the possibility of re11voi) he adduces the «impossihility [sic! of a contrat sans loi.» lt would he dificult to tind a better illustration for the tenacious hold of legal positivism on the minds of legal writers.
50 See supra notes 29-30; Juenger, supra note 1. at 16-17, 56.
51 See Juenger, supra note 37. at 203-04.
52 For criticism of that concept see Juenger, supra note 37, at 201-02; Santos Belandro, supra note 2, at 95-96.
53 See Juenger, supra note 47, at 385.
54 See Organización de los Estados Americanos, Actas y Documentos, Quinta Conferencia Especializada b1teramerica11a sobre Derecho Internacional Privado (CIDIP-V) 46 (l 996); Gonzalo Parra-Aranguren, «La Quinta Conferencia Especializada interamericana sobre Derecho Internacional Privado» (CIDIP-V México, 1994), 1994 Rei•üta de la Fundación Procuraduría General de la República 177, 219 & n.46.
55 See also Mexico City Convention art. 10: Parra-Aranguren, supra note 46. at 309.
56 According to art. 28(1), the Mexico Citv Convention becomes effective on the thirtieth day atler the deposit of the second ratification.
57 See Fernández Arroyo, supra note 9. at 276-81.
58 Jürgen Samtkhen. «Los resultados de la labor codificadora de la CIDIP desde la perspectiva europea». in España y la codificación Internacional del Derecho Internacional Primdo (Terceras Jornadas de Derecho Internacional Privado) 295. 301 (1993). See also Femández Arroyo. supra note 46, at 209-10: Parra Araguren. La segunda etapa al 1 U. («mimetismo»).
59 Alejandro M. Garro, «Unification and Ham10nization of Prívate Law in Latin America», 40 Am. J. Comp. L. 587, 596 (1992).
60 Id. at 598.
61 Bertrand Ancel, «Book Review», 85 Rev. crit. d.i.p. 237. 234 (1996).
62 Id. at 235.
63 Id.
64 See Santos Belandro, supra note 2, at 123-29.
65 See Michael Bonell, «Die UNIDROIT-Prinzipien der intemationalen Handelsvertriige: Eine neue lex Mercatoria?». 37 ZFRV 152 (1996).
66 According to Femández Arroyo, supra note 46, at 181, the Mexico City Convention, «far from limiting itself to transcribing the European text, rests on it, as the athlete puts his foot on the springboard to jump farther.»