1. Outline.
Although comparative doctrine, even today, there is no consensus on resolving the problem of skills, not hesitate to say that this is the most difficult question of private international law Why this statement? Because it is a complex process of subsuming the elements of indirect rule in a legal category.
All legal systems know the various categories of factors related connection: people, property, legal actions, proceedings, etc.. These factors may be different or the same. However, still the same, may have different interpretation. For example, in Venezuela the address at the Private International Law in the State where the person has his habitual residence, whereas in England there are two types of address: home, domicil of origin that has a person at birth and that identified with the domicile of the father or mother, and the domicile of choice, domicil of choice that a person can buy to replace the first and requires the fulfillment of two conditions: residence in a certain area and intend to stay there . This last requirement is not readily ascertainable.
But not only tries to interpret the connecting factors, but also categories important legal for private international law, such as sequences, which are located in the personal status in Germany, Italy and Spain and the real status, at least in part, in France, the statute of limitations is described as a rule of a procedural nature in England and the USA, as a matter of substance, in Germany and Italy.
The different possibilities to interpret the same legal relationship and the same connecting factors which may cause Bartin called "conflict of qualifications." To decrease this added difficulty, it is essential to determine in advance the legal system under which shall be the qualification. Even today
doctrine debate between three major alternatives: the grade according to the lex fori, ie according to the concepts contained in the material law judge. When it comes to unfamiliar concepts of foreign law could prevail qualification under the lex causae, ie according to the concepts contained in the substantive law of presumably applicable foreign law, and the self-rating using the concepts of private international law .
2. Qualification problems.
2.1. Historical evolution. The
scientific process of problem scores in 1891, when the German jurist Kahn said that there are three kinds of conflict: those produced between laws from different legal systems, the collisions between connection points where they differ in their contents, even if they are called with the same words, and those born under the different territorial nature of legal relations. For Kahn, the latter type of collision was generated by the problem of skills, since the rules of conflict depends on the nature of the legal position and this, in turn, varies from state to state.
Ten years later, French jurist Bartin expounded his thesis, that the legal nature of an institution should always be determined under the terms contained in the material law of the forum. Bartin analyzed the case of the "Maltese widow" (Anton vs Bartholo, decided by the French Court of Cassation in 1889), which questioned whether the institution of usufruct "spouse's poor quarter" belonged to the matrimonial property regime or was it an institution's right to inherit. In the first case would apply the law of Malta, the second would apply French law. Qualify the institution was governed by the Code Rohan chapter of the provisions on marriage, while French law considered part of the inheritance law. The Court of Appeal of Algeria subsumed in the institution of marriage property regime and scored under the lex causae. For further study, Bartin built for a holographic will, given by a Dutchman in France, whose solution depended on the classification of holography as a means or as background.
Subsequently, another French lawyer, Despagnet manifested, a contrario, a supporter of qualifying under the lex causae, ie according to the criteria of the right materials presumably applicable. This thesis has been supported, among others, by several European writers, especially German doctrine (Martin Wolff) and Italian (Pacchioni).
A third solution is the first exhibition in 1931, Ernst Rabel and refers to the ability to qualify independently, giving the concepts of our discipline a range of private international law itself. In this sense it is happily Goldschmidt example: If you have to qualify the term "contract" we are not concerned that the civil law of either State. Not your ¬ say that it is sufficient to designate the agreement of two or more people, etc. What matters, in order to solve the case iusprivatista is to know the extension of the term "contract" and what figures includes (sale, lease, etc.)..
2.2. Rating under the lex fori.
The rating closer to the mindset of the judge and the easiest for the legal practitioner is found in its own rules of substantive law. Having to apply a rule of conflict, for example, "the ability of persons is governed by the law of his domicile", then determine the extent of the latter. Calling this concept as the lex fori, the court will have to seek the interpretation of the home in its own legal system and, if they are several, will be decided by one of them, to apply correctly the conflict rule. The rating not only refers to the connecting factors, but also the assumptions of the rule may have some questions: if this is the validity of the holographic will, we must consider the hologram as a fundamental problem (capacity) or so? If this is a problem prescribing procedural or substantive? If we refer to goods Probate of a widow, should we subsume the issue in the field of inheritance or marriage property regime? If we talk of arbitration, is it a means of dispute resolution, procedural or contractual?
The rating according to the lex fori has two advantages: the conflict rule harmonizes with the concepts included in the same legal system of which it forms part, provided probably the legislative intent, this will fill the gap caused by the lack of supra-legal concepts for the rating of the elements of the conflict rule.
Although sometimes necessary, and much easier for the judge, the classification according to the lex fori will make justified criticisms: its application on solving cases with foreign elements to the right of the forum. This, in turn, leads to more frequent use of the latter and thereby reinforces the trend to legal chauvinism. In addition, the rating under the substantive law of the forum has many exceptions that become inevitable rule. Are they referring to the connecting factors: nationality and address that are qualified with the legal system to which they belong, and legal types, such as movable and immovable property which is subject to the lex rei sitae, contracts when the law which rules are chosen by the parties, the form of acts that are traditionally subject to the lex loci, the unknown institution governed by the laws and regulations which conflict derives supra, including in international treaties usually obey the ratings taken from the context of the treaty itself.
2.3. Rating under the lex causae.
Because the criticism of the rating under the lex fori, arises Despagnet proposed a different formula for qualification of the conflict rule: according to the lex causae, ie according to the law "presumably" applicable to the case with foreign elements. This formula is an initial difficulty: how to get to the right whose application indicates the conflict rule? Is it not essential pre-qualification, temporary or permanent, of the elements of the standard according to the lex fori? Well, if the capacity of a natural person is governed by the law of your home, how do you know what this law without interpreting the address connecting factor? Not knowing the law definitely applies, we must interpret this factor as the lex fori and if we proceed, what character will have this rating? "Permanent or temporary? If temporary, inherent problems arise at different grades of the same element of the rule, and if it is final, we would apply various skills to coupling factor and its course.
But not only this initial problem is critical to grading in accordance with the law "presumably" applicable. Also commits the mistake of interpreting a rule from a given legal and technical criteria with other, ie it occurs, what Quintin Alfonsin called an "extra ordinem interpretation."
Due to the obvious difficulties and confusion regarding the two ways to qualify, a host of lawyers began to address the issue, convinced, Bartin, that classification is a fundamental problem of private international law and that should solve the more suitable for the appropriate application of the rule of conflict. From this wide doctrine arose numerous suggestions and formulas, which seem viable for practical reasons: so-called "complementary formulation" of Wolff and "split rating" given by the Italian doctrine, which are decided by the final score of the connecting factors according to the lex fori and submit the plug element or assumption made in the lex causae, and the primary qualification is final and does not affect her school. However, the unique advantages of this arrangement are of legal certainty and the happy union between the standard indicator and applicable law, and that can not be ignored the frequent conflicts between grades.
2.4. Rating autonomous Ernst Rabel.
Apart from the problems caused qualify modes outlined above, the trend toward self-conception of private international law can not be identified with the inseparable relationship of this discipline with the right material. Break corresponded to the great Austrian lawyer, Ernest Rabel, who introduced the doctrine of self-rating. Why, Rabel said we have to use the right material to qualify a rule of Private International Law? Why not release of these channels and create their own concepts of qualification? But how to create them?
not be problematic to include them in international treaties on the subject. However, there is still some resistance to this, although some conventions have included self-rating criteria.
absence of treaties, could also be included in national laws on Private International Law. But this solution not only faced with the difficulty of developing the content of the concepts, but with the shortage of domestic regulations, especially in our continent.
What to do in the absence of these standards? Rabel intends to go to Comparative Law. This solution not only sometimes difficult, but it means a great burden to the legal practitioner. In addition, some legal experts say the brand as subjective, as no comparative may detach from its national legal culture. Reviewing
qualifying modes summarized here, we believe that the present and the future meet in qualifying independent. Despite all the difficulties it entails, is the most suited to the characteristics of private international law today. Nothing justifies the reliance on the content of the right material. Nothing justifies the qualification legal chauvinism ex lege fori, or the confusion created by the application of law rules presumably apply. It is essential to strengthen and refine the ideas of Rabel and try to create their own concepts that eventually reach universal validity. Unfortunately, self-rating still is considered by some authors with reservations.
In this topic, as in most of the general problems of private international law, the theoretical development is achieved in the early twentieth century, a circumstance that explains why the ancient American Codes do not contain specific rules on the matter but referred obliquely articles to it.
The most recent legislation lex fori host rating, although we found in the Italian Law on Private International Law (Art. 15), and the Peruvian Civil Code (1986), Article 2055, the legislative formula qualification ex lege causae of the legal consequence.
In comparative law theory and the currently prevailing view that there is only one way to qualify, and will depend on each case and each conflict rule to be applied.
3. Venezuelan system.
In the Venezuelan system of territorial concept prevailed until the mid-twentieth century, which resulted in an inclination of the doctrine and jurisprudence to the qualification under the lex fori. This conception is present in the Project Arcaya (1912) which makes the classification of the nature of the acts and legal status of foreign law to the law of the forum.
However, both the doctrine and jurisprudence have evolved in this regard. One example is the decision of the Second Court of First Instance of the Judicial Mercantile Federal District and Miranda State, dated September 29, 1966 (Case vs Quintana. Zion), which will be discussed extensively at the time of referral, in which forwarding occurs precisely due to the coupling factor rating of "place of issue", to conduct the Venezuelan judge, under the law of the State of New York.
Because of the difficulty that this entails, the explicit rules skills are scarce. Only found in the Bustamante Code, adopting a legal instrument, as a rule, the criterion of ex lege fori rating, and provides for the qualification under the Iex causae in some special cases, among others, the concept of special and general home legal persons (Art. 22), the distinction between movable and immovable property (Art. 112), and other legal descriptions of property (Art. 113) and obligations (Art. 164)
Inter-American Convention on Standards General Private International Law does not expressly qualifying. This silence gives more freedom to the judge, which should be interpreted como una tendencia a promover la calificación autónoma, sobre todo, si se analiza el contenido de las demás Convenciones Interamericanas, en las cuales se incluyen, con cierta frecuencia, calificaciones autónomas de carácter especial.
La Ley de Derecho Internacional Privado no establece normas específicas sobre el tema. Sus redactores, en la Exposición de Motivos, reconocieron que se trataba de “la cuestión probablemente más difícil de todo el Derecho Internacional Privado”, y que “en materia de calificaciones y, en general, en el tema relativo a la aplicación del derecho extranjero, se ha limitado a formular simples normas generales de orientación, que alertan al intérprete the general sense of the problems ...". However, excluding a general rule, the Act provides several provisions in self-ratings. TATIANA B.
OF MAEKELT
In: General theory of private international law,
Caracas, Academy of Law and Political Science, 2004, pp. 285-293.
footnotes version prepared by: Yaritza Perez Pacheco
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