XL IABA Conference, Madrid, 2004/

XL Conferencia de la FIA,Madrid,2004

Henry Saint Dahl

admitted in Buenos Aires, Nueva York, Madrid, Texas y Washington, DC.

JD, LLD (Buenos Aires); LLM (London); Stazhor (Leningrad)

Inter-American Bar Association Adjunct Secretary General

Visiting Law Professor at CNAM (Paris)

 IABA XL Conference

Madrid, June 24, 2004 

LATIN-AMERICAN MODEL ACT FOR INTERNATIONAL LITIGATION

 Statement of Legislative Intent 

Many Latin American systems grant substantive rights that may not be enforced for lack of adequate procedural rules. The formula that anybody who causes and injury must redress it serves as an example. This clear principle usually gets shattered to pieces in the international arena. The reason is that Latin American codes are archaic when it comes to international lawsuits. The latter are treated without specificity, in an incomplete, sporadic and incidental manner. 

This act seeks to create the necessary conditions to rationalize and to empower the procedural rules applicable to international cases concerning civil, commercial, labor and family law. Criminal procedural law is not contemplated here due to its specificity. Generally speaking, this act modernizes the international procedural rules applicable to private law.  

The subject has been more advanced in Latin America through international treaties than through international reform.  One could mention as important examples the Bustamante Code, the Montevido Treaties and the CIDIP convention. This act is less ambitios but it has a keen practical bent, short in length and with well-defined topics.  

This is a model act that Latin American countries could consider to improve greatly the way international litigation is handled. The topics dealt with are practical. The act is easy to understand, easy to apply and it does not require an infrastructure different from what is already available. 

It is true that the topics handled do not exhaust the areas that could have been covered. It seemed preferable to begin with a basic list of the most urgent rules which could show tangible results more quickly after enactment. One hopes that the achievement of this modest effort shall encourage legislative reform of greater import. 

The act has been drafted by an attorney, for attorneys. Practicity is its benchmark. A variety of sources has been used, particularly from Latin America, France and the United States. The judge is given a greater decisive role. 

Latin American nations wanting to enact these rules do not need a special infrastructure to apply them, the present resources being enough. To the contrary, since one of the of the objectives in sight is the simplification of proceedings, it is more likely that the outcome will be a saving of money, time and resources for the Judiciary Power. 

The following lines explain briefly the different sections of the act. 

Sec. 1.-   Purpose and scope. The general goal is to modernize the field of international litigation, for which two clear objectives are presented.  

The first one is to determine the parties’ rights and duties. Modernization is necessary because the rules applicable to international litigation are usually more than a century old, having been conceived for a society and for problems very different from the presentn ones. 

The second objective, more simple in nature, is to clarify certain points of the national law for when it becomes pertinent in lawsuits filed abroad. This is a novel idea in Latin America but that greatly helps the national litigant who, otherwise, must resort to expensive, and perhaps less effective means, to prove his own law. An example of how the act can help nationals involved in litigation abroad can be seen in section 3.   

Section  2. Governmental interest.  The Act introduces the American theory of governmental interest as an additional element for the court to select the applicable law between two or more competing systems, normally national law and the foreign system connected to the case.  

The act does not force the court to apply one system over the other. It simply presents the governmental interest as an additional connecting factor. The court must weigh this connecting factor together with others applicable to the case and then decide, generally, which to apply.            

Section 3.  Standing. It clarifies the freedom to file a lawsuit abroad and to request the applicability of whatever system is deemed pertinent. Domestically it may seem an obvious and unnecessary article. However, it is not uncommon that in a foreigh lawsuit the defendant should challenge the plaintiff’s standing according to plaintiff’s national law.  

It is practical for such cases to have a quick, efficient and economic way to establish that the plaintiff’s national law does not prevent the filing or the request for a specific legal system.  

Section 4. Foreign parties. A rule of non-discrimination against the foreign litigant is another example of what could be seen as redundant from a purely national point of view, but it becomes practical in other countries. The clarity of this rule helps the national plaintiff to request equal treatment in foreing countries where laws need not be so generous.   It helps, for instance, to show the existence of reciprocity for systems requiring so. 

Section 5. Service abroad.  The Act creates the possibility of serving abroad through certified mail and/or through private messenger services. This provides for an alternative method that the interested party may choose. Nothing prevents the method of rogatory letters to be used for the party wishing to use it. 

Service by mail is common in many legal systems. It is expressly allowed, for instance, by the Hague Convention on Service Abroad of Judicial and Extrajudicial Documents, as well as the American Federal Rules of Civil Procedure (Rule 4 (f) (C) (ii), see, recently, Brockmeyer v. May, 9^th Cir., No. 02-56283, 24/III/04. 

Experience shows that service through rogatory letters is excessively slow and complicated. Consequently it is also expensive for litigants and it consumes state resources that could be used for other issues. The slowliness and expense of service is a fact that, in itself, dissuades from filing international lawsuits. Here, as in other sections, the act tries to reduce expense and cut down on delays that prevent international litigation from being effective.  

It is unclear what exact term the defendant has to file an answer in some legal systems. For instance, Nicaraguan law grants an additional day for every 15 kilometers that the defendant is domiciled away from the court. But it is not certain if this method applies to international cases or, more pointedly, to transatlantic cases. The Act gives the certainty of a specific term. 

Some countries have a mandatory phase to attempt conciliation, which requires service. If conciliation fails, new service is needed. As a matter of judicial economy the act requires the cumulative service, done once only, for conciliation purposes and, should conciliation fail, to answer the claim.  This single service then invites the parties to a conciliation hearing and, if unsuccessful, the party is subsidiarily summoned to file an answer.   

Section 6. Statute of limitations. This is usually a grey area in international cases. Often times it is argued whether it is ruled by the lex causae or by the lex fori. Doubts also exist as to when it starts running. International cases bring the important complication that potential plaintiffs would not necessarily know against whom the claim should be brought. It may happen, for instance, that the injury is not immediately apparent with certain products, or that the injury is initially light, only to become catastrophic later. These are matters that the act contemplates, solving them in the victim’s favor. 

The precedent can be found in article 2270-1 of the French Civil Code, which states: “Tort liability is time barred after ten years, starting when the injury takes place or when it becomes aggravated.” The act extends this rule to all personal actions, not just to the ones sounding in tort.  

Section 7. Foreign evidence in national lawsuits. Evidence is treated very sporadically in Latin American procedural codes. For instance, there is no clear vision if the “depositions” of Anglo-American law are admissible evidence or not. And even if they were, the codes offer no guidance as to whether one has to translate the whole document, or just its pertinent section. This is the type of practical questions that the act tries to solve. It is quite an important matter since it can decide the outcome of the case in one sense or another.  

The principles here incorporated are the admissibility of foreign evidence (par. 1), the divisibility of documentary proof (par. 2); and available means to prove foreign law (par. 3). 

Section 8. Proving national law in foreign lawsuits. This is another example of a new rule in Latin American law. It gives the national litigant an accessible way to require help from the State to obtain evidence in a foreign lawsuit. 

The legal opinion of the Attorney General’s Office is very powerful. American law calls it “conclusive”  (conf. United States v. Pink, Superintendent of Insurance of the State of New York, Supreme Court of the United States, 1942. 315 U.S. 203, 62 S.Ct. 552; y D’Angelo v. Petroleos Mexicanos, 422 F.Supp. 1280 (D. Del. 1976), aff’d without opinion 564 F.2d 89 (3d Cir. 1977), cert. denied 434 U.S. 1035, 98 S.Ct. 770 (1978)). 

Section  9. Plurality of parties.  It is not unusual now-a-days to see a high number of  parties in a lawsuit. The rules for joinder tend not to be practical since they just accumulate procedural acts in the same case, without necessarily resulting in judicial economy.  

The act empowers the court with the discretion to take practical measures that avoid unnecessary repetitions, to speed up the case.  

Section 10. Strict liability.  This theory, referred to as strict liability o product’s liability is very well known is American law. It is also known in Latin American law. Costa Rica, for instance, contemplates it expressly (See C. Manavella, Cuestiones de responsabilidad objetiva en la jurisprudencia de la Sala I de la Corte Suprema de Justicia, in Ivstitia, Nr. 193 - 194, pp. 8 - 11). 

The act includes the subject for those countries that have not embraced this theory yet, or for those that wish to clarify the situation. 

The act only applies this rule to the foreign product, technique or process because it is the one that is not originally controlled by the State. As a matter of domestic law the State may apply the same principle or a different one to national products. 

Section 11. Environmental protection. Many times it is argued in foreign lawsuits whether the Latin American State in question and/or its citizens have an action. To throw light on the matter the Act chooses the most generous stance for the presumed victim by declaring that the State, as well as individual citizens, have an action.  

Said action can be filed before national court or foreign courts with jurisdiction according to their own procedural rules. This section does not force the State or the citizens to litigate but, if they so wish, it is clear that national law grants them an action.  

Section 12. Human rights. The present rule seeks an effective application of the pertinent human rights treaties and of national legislation when international cases arise. The general objective is to put theory into practice. The parameters of prudence and equity are imposed on the court.  

Section 13. Forum non conveniens. The effects of forum non conveniens, a common law concept, are confronted with the notion of pre-emptive jurisdiction which is found in all Latin American systems. The act clarifies that pre-emptive jurisdiction also applies to international cases, making filings pursuant to a forum non conveniens dismissal by a foreign court unable to generate jurisdiction. That is why the Latin American court must dismiss such cases sua sponte.  

The rule is backed by international authority (see Inter-American Juridical Committee of the Organization of American States, OEA/Ser.Q, CJI/doc.29/99, July 14 1999 and OEA/Ser.Q, CJI/doc.2/00, March 3, 2000) and by some American precedent (see Lucas Pastor Canales Martinez y Otros v. Dow Chemical Company, y Otros, 219 F. Supp. 2d. 719; 2002 U.S. Dist. LEXIS 13841). 

Section 14. Damages.  Plaintiff may request that the court apply the indemnity levels prevailing in the foreign law connected to the case. The court may consider such request without being forced to accept it entirely.  

This solution would be possible under American law. There is also some Latin American precedent for it as, for instance, the Parlatino Model Law of 1998, section 2; the Guatemalan Law for the Defense of Procedural Rights of Nationals and Residents, of May 14, 1997 (see Dahl’s Law Dictionary, 3^rd edition, NY, 1999, pp. 673 y 689, respectively. See also Law 364 of Nicaragua, from January 17, 2001, Section 12). 

Section 15. Judgment, additional measures. The section was taken from the Dominican Transnational Causes of Action (Product Liability) Act 1997, section. 10 (2) (see Dahl’s Law Dictionary, 3rd edition, NY, 1999, p. 668) . It reflects the fact that sometimes the judgment does more that to reflect a certain sum of money and it may impose other sanctions, as ordering one party to present its excuses to the other, that certain documents be published, etc. 

Section 16. Appeals. One of the main vices of justice is the delay in reaching a final judgment. Latin American jurists almost unanimously criticize how slow judicial proceedings are. The act tries to make proceedings quicker by having appeals decided collectively at the end and not preventing the amount ordered to be paid from being deposited in the court’s register while appeals are pending.  

The purpose is to prevent appeals from becoming a routine stratagem to obstruct proceedings. 

These measures are justified even more in international cases since the foreign elements that these lawsuits incorporate make them more vulnerable to dilatory strategies.  

Section 17. Recognition and enforcement of national judgments abroad.  Latin American codes only contemplate the enforcement and the recognition of judgments in a generic way. No system deals with what happens when a judgment is rejected abroad for reasons of form, not of substance.  

The act tries to help the national judgment giving the interested party the possibility of refiling the case to correct procedural defects that had prevented its enforcement. For reasons of judicial economy, the evidence admitted previously does not need not be resubmitted.  

To prevent abuse, and due to its exceptional nature, the interested party may only use this section once.  

Section 18. Legal gap. As it is usual under this type of circumstance, a remission is made to subsidiary sources. It is added that the court must apply such subsidiary sources in an equitable way and trying to attain solutions that are effective and practical.  

It seems good policy to allow the court a certain freedom of action, tempered by equity and implicitly by prudence, making it possible to reach practical solutions. This is so because in international cases it is much more difficult to predict what situations will arise and how will the different events play out. The mere multiplicity of jurisdictions and legal systems potentially applicable produce an atomizing effect that escapes legislative control. The antidote is giving the court a greater capacity to decide.            

LATIN-AMERICAN MODEL ACT FOR INTERNATIONAL LITIGATION 

Section 1.-   Purpose and scope.The purposes of this act are: 

a)   To determine rights and duties in international lawsuits filed in the country; and

b)   To clarify national law for when it were pertinent in lawsuits filed abroad.

This act shall not be applied to cases filed in the country whose foreign elements are only incidental. 

Section 2.-   Governmental interest. When two or more legal systems were applicable, the court may choose the system that better protects the governmental interest, general wellbeing and the one that effectively prevents the recurrence of antisocial conduct. 

Section 3.- Standing. National law does not prevent citizens from filing lawsuits abroad if they so wish. It does not either prevent citizens from requesting the applicability of the foreign law they deem relevant, whether in lawsuits filed in the country or abroad.  

Section 4.-   Foreign parties.  Foreign parties must be treated with the same deference afforded to nationals. Both shall enjoy due process in the same measure.  

Section 5.-   Service abroad. At the interested party’s request, service abroad, including summons, may be effected by certified mail and/or by private messenger system, as long as it does not breach any international treaty signed by the country.     

Summons. The term to file an aswer is thirty days.

Conciliation. When general procedural norms impose a conciliation round, the summons shall include the time to answer the complaint in case the conciliation effort is unsuccessful. 

Section 6.-   Statute of limitations. Personal actions are time-barred ten years after the injury becomes apparent, or when the injury is significantly aggravated, or when the responsible party’s identity becomes known. In case of conflict the reference taken shall be the most favorable one to the viability of the action.  

Section 7.-   Foreign evidence in national lawsuits. Evidence produced in foreign lawsuits shall be admissible and subject to the free appreciation of the national court.  

The proponent of foreign documents may only present their relevant parts but must include the section that identifies them.  

The content of foreign law can be proven through official documents of the country in question as, for instance, the text of the law itself or judicial decisions. Legal writing and the opinion of people versed in the matter, national or foreign, can also be used. The court shall use its discretion to appreciate the evidence and may take into account internet publications, particularly those of official sites.

Section 8.-   Proof of national law in foreign lawsuits. At the request of nationals who are parties in foreign lawsuits, the Attorney General’s Office and/or Consulates in the country where the lawsuit is taking place, may issue opinions explaining specific points of national law.  

Section 9.-   Plurality of parties. If there were a great number of plaintiffs or defendants, the court may consolidate the actions using its discretion to implement practical measures for the case to move quickly, within the limits of due process. Evidence that is common to the parties may be produced only once to avoid unnecessary repetitions.  

Section 10.-   Strict liability. Any person, whether a national of or domiciled, resident or incorporated in a foreign country, or otherwise carrying on business abroad, who manufactures, produces, distributes or otherwise puts any product or substance into the country’s stream of commerce shall be strictly liable for any and all injury, damage or loss, caused as a result of the normal use or consumption of that product or substance. 

Section 11.-   Protection of the environment. Without prejudice to other sanctions imposed by law, any violation of environmental laws generates an action for damages by the State and/or by individuals, for  injury caused to the environment and to natural resources. 

The perpetrator is obligated to replace or re-instate the affected things and objects to their natural state. 

Section 12.- Human rights. Whenever pertinent, human rights established as such by international treaties signed by the country, as well as by national legislation, must be taken into account by the court for their effective application, in a prudent and equitable way. 

Section 13.-   Forum non conveniens. Due to constitutional reasons, and because of pre-emptive jurisdiction, a lawsuit filed in the country in pursuance of a forum non conveniens decision does not generate jurisdicition. Such cases shall be dismissed sua sponte for lack of jurisdiction.  

Section 14.-   Damages. At the plaintiff’s request in international cases, the court may apply to damages and to the pecuniary sanctions related to such damages, the relevant standards and amounts of the pertinent foreign law. 

Section 15.-   Judgment, additional measures. The Court is hereby empowered to make any order tending to obtain moral satisfaction for victims of illegal conduct and to prevent the recurrence of antisocial acts. Among such measures the court may order the following: that an apology be made by the defendant to the plaintiff; publication of the facts about the defendant’s products in the newspapers, health magazines and journals in the country and abroad; The placing of advertisements and warnings about the defendant’s products; and the publication of the health, environmental, and economic consequences of the wrongful act of the defendant. 

Section 16.-   Appeal. Challenges against the trial court’s decision, interlocutory or not, shall be granted for review purposes only and shall not prevent that while the appeal is being decided, the amounts ordered be deposited into the court’s register. 

Section 17.-  Recognition and enforcement of national judgments abroad.       When the recognition or enforcement of a national judgment is denied abroad because of procedural reasons, the interested party may begin a new lawsuit in the country, based on the same facts, to cure the procedural defect causing an obstacle abroad.  This possibility may be used only once. The evidence presented in the initial case can be used again and the adversary party may offer new counter evidence.  

Section 18. Legal gaps. Topics not addressed by the present act shall be controlled by the rules established in other legal sources subsidiarily applicable. The court shall have the power to apply said subsidiary rules in an equitable way and trying to reach solutions that are practical and effective in the international field.

Top of page