Novelties of Conflict Regulation in Private International Law of Argentina

Abstract

Argentina is one of the most developed countries in the Latin American region, which certainly stimulates the legislator to pay great attention to improving the national regulation of cross-border relations. The Private International Law of Argentina was first codified in the Civil Code (1869), but always developed mainly through the “international dimension”, and the “national dimension” always had a “residual” character and did not adequately reflect modern trends in the regulation of private international relations. In 2015, the new Civil and Commercial Code entered into force in Argentina, Title IV “Provisions of Private International Law” of which contains a rather large-scale and detailed regulation of the issues of Private International Law and International Civil Procedure. The Argentine legislator has chosen the path of intra-branch complex codification of PIL / ICP — in the act of general codification of civil law the rules for selecting the applicable law and jurisdictional norms are included as a separate special section. Compared with the previous regulation, the new PIL of Argentina underwent significant modernization, primarily under the influence of the European approaches — the Swiss PIL Law and the EU regulations on jurisdiction, applicable law and enforcement of foreign judgments. The article analyzes the most significant novelties affecting the institutions of the General Part of PIL: the establishment of the content of foreign law, the qualification of legal notions, the renvoi, flexible connecting factors, the autonomy of will of the parties, the technique of dépeçage and the adaptation of conflict rules. It is concluded that, in general, the new PIL of Argentina produces a positive impression. On the other hand, there are a number of serious shortcomings in the regulation of general issues of the PIL, in particular: 1) the renvoi institution is formulated very broadly and indefinitely; 2) there is no special rule on prior, preliminary and collateral conflict issues; 3) the institution of qualification of legal notions is not legally regulated. It appears that these shortcomings are the costs of the intra-branch method of codifying PIL, and they could have been avoided if Argentina had followed the path of complex autonomous codification of PIL / ICP.