The First South American Congress of Private International Law was an international congress on private international law (or conflict of laws) and an ad-hoc codifier forum of international conflict of laws treaties held in Montevideo from 25 August 1888 to 18 February 1889, in which eight treaties and an additional protocol were passed that covered practically all the subjects of conflicts of laws of that time. These were one of the first treaties on conflict of laws to come into force in the world.
Invitation On 14 February 1888 the Minister of Foreign Affairs of Argentina, Norberto Quirno Costa, and the Minister Plenipotentiary of Uruguay to Argentina, Gonzalo Ramírez, met in Buenos Aires in order to convene a congress of South American countries with the purpose of standardizing and unifying through a treaty the subjects related to private international law. The Congress on Private International Law would be organized by the governments of Argentina and Uruguay the next 25 August in Montevideo.
On 10 March 1888, Quirno Costa sent separated but simultaneous invitations to the governments of Bolivia, Brazil, Colombia, Chile, Ecuador, Paraguay, Peru and Venezuela.
Governments of Bolivia, Brazil, Chile, Paraguay and Peru accepted to the invitation. Government of Colombia declined the invitation because it was necessary to review the current legislation due to the recent reform of the Colombian Constitution, task that prevented it from attending the Congress since it would not be done before the beginning of the Congress. In the case of Ecuador, it declined the invitation because they were in the middle of elections, so there would be an imminent change of government functionaries, and the new functionaries should be the ones who select and sent representatives. Venezuelan government declined the invitation because "the narrow time" since they received it to the date of beginning of the Congress, and due to the distance their plenipotentiary would have to travel would make it impossible to attend.
Congress Attendants Attended to the Congress Roque Sáenz Peña and Manuel Quintana as representatives of the Republic of Argentina, Santiago Vaca Guzmán as the representative of the Republic of Bolivia, Domingos de Andrade Figueira as the representative of the Empire of Brazil, Guillermo Matta and Belisario Prats as the representatives of the Republic of Chile, Benjamín Aceval and José Zacarías Caminos as the representatives of the Republic of Paraguay, Cesáreo Chacaltana and Manuel María Gálvez as the representatives of the Republic of Peru, and Ildefonso García Lagos and Gonzalo Ramírez as the representatives of the Oriental Republic of Uruguay.
In few of the first sessions attended as temporary representatives of Brazil the Baron of Alencar and Juan Duarte Da Ponte Ribeiro. The appointed Minister Plenipotentiary Domingos de Andrade Figueira joined in the 15th session of 10 December due to the successive extensions of the works of the Brazilian parliament.
Opening session The opening session took place on 25 August 1888. Ildefonso García Lagos said in his opening speech that with the advance of the legal sciences it is already possible to create fixed rules that are able to resolve the conflicts caused by the application of its laws when dealing with private relations, without detriment to the sovereignty of nations.
He also added that the frequency and ease with international transactions occurs and the multiplicity and importance of the commerce that link the South American countries each other and to the rest of the world required to materialize an international agreement for the solution of issues that affect those legal relations.
Meanwhile, Norberto Quirno Costa mentioned that nationals and foreigners who join the country should not feel stranger to the system neither being harmed by the conflicts of laws in regard to their person, acts or properties, thus making civil relations easier. Also as the South American countries progress and their international relations increase, the links between people are narrower and the existence of common rules is more necessary.
However, in the 12th session of 1 December, on the occasion of the discussion of the project on international criminal law treaty introduced at the 7th session of 10 October, Sáenz Peña said that they attended the Congress not to standardize laws as expressed in the letter of invitation to the Congress, because this would imply reviewing domestic laws of each country, which would mean violating the principle of the inviolability of the States, but they were there to discuss the applicable law and the competent jurisdiction in a case with international elements.
He also said:
Treaties Treaty on International Civil Law This treaty deals with various subjects: capacity of physical and juridical persons, domicile, absence, marriage, parental authority, filiation, guardianship, property, legal acts, inheritance, prescription and jurisdiction.
The connecting factor chosen by the treaty regarding capacity is the domicile.
Regarding jurisdiction, title regulates direct international jurisdiction. In its article 56 provides for action in personam shall be competent the judge of the State whose law regulates the legal act to be under trial. It also allows as a concurrent forum the judge of the domicile of the defendant.
On top of that general rule, the treaty provides specific solutions of jurisdiction according to the subject in question: for example, the judge of the domicile of the person (for cases of absence, capacity, parental authority and guardianship, marriage and its validity, personal effects, divorce, etc.), the judge of the location of property (for actions in rem, property of the persons lacking capacity, matrimonial property, hereditary property) or the judge of the place of residence (urgent measures for the personal relations of the marriage, and for minors and disabled people).
Treaty on International Commercial Law In case of international insurance contracts, the judge of the legal domicile of the insurance companies or its branch offices has jurisdiction over lawsuits against them on terrestrial or marine insurance contracts. According to Boggiano, when the insurance company is the plaintiff, it could alternatively sue before the judge of the domicile of the defendant following article 56 of the Treaty on International Civil Law. Terrestrial or marine insurance contracts are regulated according to the law of the place where the property subject to the insurance policy is situated at the time when the contract was celebrated.
Treaty on International Procedural Law Treaty on International Procedural Law of 1889 regulates subjects related to Procedural Law. Among its provisions, its first article establishes that the procedure and its incidents are governed by the law of the State where they are promoted (the principle lex fori regit processum). Its article 2 establishes that the admission and evaluation of the evidence are governed according to the law of the merits of the case.
Title on legalization requires the legalization of judgments, awards and other authentic documents in order to take effect in another State party. In order to achieve that, legalization must be carried out in accordance with the laws of the State where it was issued and performed by the accredited diplomatic or consular agent of the State where the enforcement is to be sought.
Title regulates issues related to the fulfilment of letters rogatory, judgments and foreign arbitral awards. For foreign judgments and arbitral awards issued in a State party, it establishes the general rule of recognition, subject to certain requirements: that the judgment or award has been issued by a competent court in the international sphere, that it is under res judicata in the State where it has been issued, that the proceeding followed due process and it does not go against the laws of public policy of the country where the recognition or enforcement is requested.
Article 6 lists the necessary documents to request the fulfilment of judgments and arbitral awards. Article 7 provides that the procedure for judgments and awards shall be determined by the procedural law of the State where the enforcement will be requested. Article 8 provides the extraterritorial validity of acts of non-contentious jurisdiction, in accordance with the rules of the preceding articles. Article 9 provides that letters rogatory whose purpose is a judicial proceeding shall be carried out provided they meet the requirements of the Treaty.
Treaty on International Penal Law Treaty on International Penal Law, passed on 23 January 1889, deals with various subjects on the Penal Law matter, such as jurisdiction on criminal matters, asylum, extradition and precautionary arrest. Treaty was ratifier by Argentina in 1894 (by Law N° 3192), Bolivia in 1903 (by Law of 17 November 1903), Paraguay in 1889, Peru in 1889 (by Legislative Decision of 4 November 1889) and Uruguay in 1892 (by Law N° 2207).
In matters of penal jurisdiction, it provides that the crimes are judged by the courts of the State where they are committed, in accordance with their laws, regardless of the nationality of the alleged perpetrator, victim or affected. In the case, the crime has been committed in one State but its effects occur in another State, the court with jurisdiction and the applicable law will be those of the State where the harmful effects occurred. If the crime affected several States, the tribunal of the State where the offender has been captured will have jurisdiction on the case.
In the case of crimes committed in high seas or international waters, they are judged and indicted according to the law of the State of the flag of the vessel. Regarding crimes committed in territorial waters, in the case of war vessels, they are judged and indicted in accordance with the laws of the State of the flag of the vessel, while in the case of crimes committed in merchant vessels of one State in territorial waters of another one, will be judged and indicted according to the law of the State in whose territorial waters the vessel was lying at the time the crime was committed.
In matters of asylum, Title II of the Treaty regulates this subject, being this the first time in the world that codifies asylum in a treaty and also laid the groundwork for the later development of the subject in international law. Article 15 provides that no offender who has taken refuge in the territory of a State shall be surrendered to the authorities of another State unless in compliance with the rules of extradition. This protection from forcible return (non-refoulement) is extended by the provision of article 23, which provides that extradition shall not work in the case of political offences or common offences connected to political offences, to be determined by the requested State under the law most favorable to the accused.
Article 16 stipulates the inviolability of the political asylum, even though the State who granted the asylum has the duty to prevent the political refugee from committing acts within its territory which may endanger the public peace of the State in which the crime has been committed. This provision foresaw the principle that developed later, that the grant of asylum is a humanitarian, peaceful and non-political act, that should not be taken as unfriendly towards the country of origin.