Exploring a Minefield: Private International Law in Latin

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ISSN 2291-9732

Exploring a Minefield: Private International Law in Latin

America, Its Neocolonial

Character, and Its Potentialities

María Julia Ochoa Jiménez

^

Abstract

Comparative legal studies have critically approached processes such as the reception or transplant of law from Europe and the United States into Latin American countries, taking into account their neocolonial biases. I will consider this subject within the framework of the following question: To what extent is it possible for Latin American countries to free themselves from some harmful effects of the neocolonial character of law by resorting to that same law? Though in some respects, such a possibility may be rejected, it should not be seen beforehand as a binary question. I will take private international law as an example to approach some issues that lie behind that question. The reason I will use private international law, and the comparative law dimensions that are at its basis, is connected to criticisms that point to pluralism: neocolonial legal institutions do not properly consider the diversity of pre-state normative orders which exist in the region. Certainly, Latin American private international law has traditionally rejected any proper consideration of the diversity of pre-state normative orders which exist in the region. But, at the same time, private international law since its origin has tackled the existence of foreign normative orders, as well as the extent to which they can be accepted and applied.

I. Introduction

There are two dimensions of comparative law that rest on the basis of conflict of laws, also known as private international law, defined as “the body of law that determines what law should regulate a dispute that has multijurisdictional elements.”¹ The first of these dimensions is present when there is a need to choose the applicable law to resolve a conflict-of- law situation. In this sense, the conflict-of-law rules of each state can foresee the application (or non-application) of foreign law. The second dimension relates to the fact that conflict- of-law rules have been influenced or even determined by rules coming from other states.

In neocolonial contexts such as that created by the emergence of the republics in Latin

 Professor, Department of Law and Political Sciences, University of Antioquia, Colombia; Alexander von Humboldt Research Fellow, Department of Anthropology of the Americas, University of Bonn, Germany ([email protected]).

1 Annelise Riles, A New Agenda for the Cultural Study of Law: Taking on the Technicalities, 53 Buff. L. Rev.

973, 976 (2005).

2021 CanLIIDocs 139342021 CanLIIDocs 13934

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America, such states are not necessarily those that exerted colonial power, but their influence brings neocolonial legal institutions and, at the same time, reinforces those already established. Both dimensions are considered in this paper.

Observing Latin American private international law thus allows us to approach some issues that lie behind the reception or transplant of law from Europe and the United States into the region. Usually, such processes are critically observed by looking at political aspects² and without paying particular attention to the specificities of each legal field. In this vein, private law has been described as a mechanism of political and cultural hegemony.³ As it is traditionally considered to be a part of private law, such criticisms would apply to private international law as well. In this context, one of the main arguments of this paper is that private international law in Latin America is built upon neocolonial conceptions, as is generally the case in the Global South.⁴ By the term neocolonial, this paper refers to the emphasis that private international law puts on the state, and to the fact that, as a consequence, private international law does not properly see the diversity of pre-state normative communities existing in the region. This focus on the state is reflected, first of all, in the conflict- of-law rules that are mainly defined at the national level: by using such rules, each state

“determines, for itself, the relation between itself and another law,”⁵ which means that each state decides under which circumstances foreign law can or cannot be applied within its territory. Additionally, each state considers the existence of foreign law only insofar as it is state law.⁶ In Latin America, a strong notion of the state was at the basis of the emergence of the republics during the nineteenth century, as was also the adoption of conflict-of-law rules, first in national Civil Codes and later on in international treaties as well. This certainly served the main political objective of the new republics, which was to achieve long-lasting independence from foreign powers. However, private international law also came to ex- clude the consideration of non-state norms created by the Indigenous normative communities that already existed in the region. The effects of such exclusion extend to the present and remain unaddressed.

2 In this sense, Latin American critical studies are particularly concerned with political examinations. For example, Walter Mignolo pointed out that “for the decolonial option, the problem is the colonial matrix (pattern in Aníbal Quijano’s vocabulary) of power.” Walter Mignolo, La Idea de América Latina: La Derecha, La Izquierda y La Opción Decolonial, 2 Crítica y Emancipación 251, 254 (2009).

3 M.C. Mirow, Latin American Law: A History of Private Law and Institutions in Spanish America (2004).

4 In relation to the South African case, see, e.g., Emile Zitzke, A Decolonial Critique of Private Law and Human Rights, 34 S. Afr. J. Hum. Rts. 492 (2018).

5 Ralf Michaels, Global Legal Pluralism and Conflict of Laws (Jan. 2019) (https://www.researchgate.net /publication/333285971_Global_Legal_Pluralism_and_Conflict_of_Laws).

6 See Paul Schiff Berman, Towards a Cosmopolitan Vision of Conflict of Laws: Redefining Governmental Interests in a Global Era, 153 U. Pa. L. Rev. 1819 (2005); Ralf Michaels, The Re-state-ment of Non-State Law:

The State, Choice of Law, and the Challenge from Global Legal Pluralism, 51 Wayne L. Rev. 1209 (2005).

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This paper attempts to step beyond political considerations to move in the direction pointed out by Ralf Michaels, who proposed a post-critical private international law.⁷ Such a proposal implies a move “from politics to technique,”⁸ which can be seen as part of An- nelise Riles’s call for “a humanistic rediscovery of the technical.”⁹ This does not mean acting

“in the ignorance of politics but, quite to the contrary, in sight of the impossibility of resolving political conflicts otherwise.”¹⁰ In this sense, the other main argument of this paper is that private international law presents potentialities to address some effects of its neocolonial character. The main ideas presented here are certainly in line with criticisms against the state-centered focus of private international law. Attention is additionally paid to the fact that private international law methodologies essentially deal with conflicts (differences) that originate from normative diversity. In different forms, normative diversity has been tackled by private international law thinkers in the region,¹¹ as has also been the case since the emergence of this legal field in continental Europe. By seriously taking account of the disregard of Latin American private international law for Indigenous normative orders and, at the same time, going beyond such criticisms, and given the long history and experience of private international law in dealing with normative diversity, this paper offers an outline of some elements to use to revisit the way we currently think about Latin American private international law.

The paper is divided into three sections. The first section offers some thoughts about how to critically observe the development of private international law in Latin Amer- ica, looking at both the manner in which its rules have been influenced, or even determined by, rules coming from abroad and its disregard for Indigenous normative orders. The second section sketches an approximation of the role played by human rights in supporting the need to consider such normative orders. The third and last section explores how Latin American private international law can respond, and is to some extent actually trying to respond, to the need for recognition of Indigenous peoples’ normative orders.

7 Ralf Michaels, Post-Critical Private International Law: From Politics to Technique, in Private International Law and Global Governance 54 (Horatia Muir Watt & Diego Fernández Arroyo eds., 2014).

8 Id.

9 Riles, supra note 1, at 978.

10 Michaels, supra note 7, at 67.

11 Werner Goldschmidt, Derecho Internacional Privado: Derecho de la Tolerancia, Basado en la Teoría Trialista del Mundo Jurídico (1990).

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II. Notes for a Critical Approach to Latin American Private International Law

A. Legal Transplant and Reception in Latin American Private International Law

Codifications adopted in Latin America in the nineteenth century marked the beginning of modern private international law.¹² However, private international law is not a Latin Amer- ican creation. This rather obvious statement calls attention to the fact that the “lack of originality”¹³ that has been assigned to Latin American law relates to private international law. Due to such lack of originality, Latin American law not only would be frequently dis- regarded in comparative law studies but would also be more vulnerable to influence and domination.¹⁴ The idea that legal impurity¹⁵ characterizes the region as a result of reception or transplant of law first from Europe and later from the United States has been carefully described by Diego López Medina.¹⁶ According to him, the development of legal theory in Latin America is framed by a process in which legal knowledge produced in central and prestigious nation-states with rich hermeneutical environments is transplanted into places of reception in peripheral or subordinated countries with poor hermeneutical environments. He makes clear, however, that this reception does not mean that legal theory is less developed in peripheral systems, such as the Latin American ones, given that systematic approaches are needed¹⁷ to permit adaptation to local circumstances and culture through comparative work.¹⁸ In this regard, López Medina proposes going beyond comparative leg- islation because this “obstructs a true understanding of a foreign legal system since to know its rules does not mean to know it at all,”¹⁹ and suggests observing the originality that exists in the legal systems of the region.²⁰ The arrival of private international law in Latin America in the nineteenth century and the way in which it has developed ever since can be framed by López Medina’s critical comparison approach. Without going deeply into this, I will try to offer some thoughts in that direction.

12 Ana Delić, The Birth of Modern Private International Law: The Montevideo Treaties (1889, amended 1940) (2017) (http://opil.ouplaw.com/page/Treaties-Montevideo).

13 Jan Kleinheisterkamp, Development of Comparative Law in Latin America, in The Oxford Handbook of Comparative Law 262, 263 (Mathias Reimann & Reinhard Zimmermann eds., 2006).

14 Id.

15 See Diego López Medina, Teoría Impura del Derecho: La Transformación de la Cultura Jurídica Latinoamericana (2009).

16 López Medina points to a Latin American legal comparison theory, though he goes deeply only in regard to the Colombian case. López Medina, supra note 15, at 16, 109.

17 López Medina, supra note 15, at 21.

18 Id. at 71.

19 Id. at 74.

20 See José María Castán Vásquez, Sistema de Derecho Privado Iberoamericano, 28 Estudios de Derecho 5 (1969).

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A look at legal transplant and reception in Latin America in the field of private international law leads us to think about the political (and practical) usefulness of private law even before the formation of nation-states in the region. Private law indeed played a key role in colonization: “Structuring exploration and colonization through private law and contractual obligations was an advantage to the [Spanish] crown.”²¹ The reason for this was that the crown “did not have enough money to fund such activities on its own. Even if it were sufficiently wealthy to fund such expeditions, these undertakings were very risky, and the crown shifted the risk of failure to private hands.”²² After independence, the codification of private law was thought to establish order in the midst of legal chaos, and it was crucial to consolidate the independence already reached. Though early codification attempts failed due to political instability and lack of funds,²³ decades later in the mid-nineteenth century, not only constitutions but also private law codes were key to the new states laying the legal fundaments of sovereignty and nationalism.²⁴ Codification allowed them to consolidate independence in front of foreign states as well as to exert their power among the inhabitants of their territories. Thus, in private law codification, two streams come together.

On the one hand, codification reflects the modern liberal thought that was the basis of the political organization of the new republics. Marked by the French Revolution, modern liberal thought followed rationality and individualism, which led to the development of an overemphasis on private property and to the bloom of contractual freedom. On the other hand, codification took place by making use of the Roman law tradition in its versions developed by glossators, especially the Bologna school.²⁵ As Horatia Muir Watt underlined, it was in the Roman-Christian tradition that conflict-of-law rules were workable.²⁶

In this context, Andrés Bello’s work and the Chilean Civil Code of 1855 which he drafted stand out as an example of the influence of European legal institutions and legal ways of thinking in the field of private international law in Latin America.²⁷ Dutch conflict- of-law theory and its comitas gentium doctrine determined Bello’s preference for territorial rules,²⁸ such as those about personal and real statutes.²⁹ Certainly, legal transplants are not

21 Mirow, supra note 3, at 14.

22 Id.

23 Id. at 135; Kleinheisterkamp, supra note 13.

24 John Henry Merryman & Rogelio Pérez Perdomo, La Tradición Jurídica Romano-Canónica (2014).

25 Mirow, supra note 3; Merryman & Pérez Perdomo, supra note 24.

26 Horatia Muir Watt, Private International Law Beyond the Schism, 2 Transnat’l Legal Theory 347, 378 (2011).

27 Kleinheisterkamp, supra note 13.

28 Jürgen Samtleben, El Principio de Territorialidad en América Latina (1977), in Rechtspraxis und Rechtskultur in Brasilien und Lateinamerika 347 (Jürgen Samtleben ed., 2010).

29 Chilean Civil Code of 1855 (arts. 15 & 16).

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new, whether back in the nineteenth century or in the present.³⁰ However, such a lack of novelty does not make legal transplants irrelevant. In the Latin America of the nineteenth century, not only Bello’s work but also that developed by other very influential Latin Amer- ican legal thinkers, such as Augusto Teixeira de Freitas in Brazil or Dalmacio Vélez Sarsfield in Argentina,³¹ was developed upon the basis of European legal theories that were then in vogue. Their works also left profound traces in national codifications as well as in interpre- tations by decisionmakers and scholars. This contributed to the building of preferences around conflict-of-law theories and codifications that are still in existence.

By way of illustration, consideration should be given to the discussions on the cri- terion (connecting factor) to apply in situations regarding the personal statute (i.e., a person’s civil status and capacity),³² whether it should be that of the nationality or that of the domicile, as well as to what implies the application of the national law of foreigners or each state’s own territorial law. All discussions about this subject revolve around European legal ways of understanding and resolving conflict-of-law situations. On the one hand, some countries have preferred the nationality principle developed by Pasquale Stanislao Mancini which was stated in the Treaty for the Establishment of Uniform Rules in Private Interna- tional Law (Treaty of Lima) of 1878.³³ On the other hand, the domicile principle based on Friedrich Carl von Savigny’s ideas has prevailed in other countries,³⁴ as in the Montevideo Treaty on International Civil Law of 1889.³⁵ For its part, the Chilean Civil Code includes a strongly territorial solution based on the nationality principle, according to which Chilean law applies to situations involving Chilean citizens. This solution was also incorporated in other Civil Codes in the region, some of which are still in force and contemplate it in the same form.³⁶ The Private International Law Code (Bustamante Code), which is a regional treaty adopted in 1928, includes a compromise between the two opposing positions so that each state decides what personal law is, whether it is that of the nationality or that of the domicile.³⁷ The domicile principle later gained ground and nowadays prevails in most codifications. Apart from Cuba (and those countries that follow the 1855 Chilean Civil Code,

30 From the twelfth century onward in the European context itself, Germans borrowed legal institutions and ways of thinking from the Romans. See Alan Watson, The Evolution of Law 66-97 (1985). Of course, Watson does not see this from a center-periphery approach such as that proposed, for example, by López Medina, supra note 15. See Ugo Mattei, Comparative Law and Critical Legal Studies, in The Oxford Handbook of Comparative Law, supra note 13, at 816.

31 Kleinheisterkamp, supra note 13.

32 Ernst Rabel summarized how this subject matter is key in comparative private international law. See Ernst Rabel, The Revision of the Treaties of Montevideo on the Law of Conflicts, 39 Mich. L. Rev. 517 (1941).

33 See Jürgen Samtleben, Internationales Privatrecht in Panama: Eine neue Kodifikation in Lateinamerika, 85 RabelsZ 52, 85 (2018).

34 Delić, supra note 12.

35 Id.; Montevideo Treaty on International Civil Law of 1889 art. 1.

36 See, e.g., Civil Code of Colombia art. 19; Civil Code of Ecuador art. 14; Civil Code of Honduras art. 13.

37 Bustamante Code art. 7.

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such as Colombia and Honduras, and still today include conflict-of-law rules on personal statute built upon the nationality principle which excludes the application of foreign law), the Panamanian Private International Law Code of 2015 is the only national codification in Latin America that currently includes the nationality principle which permits the application of foreign law.³⁸ Behind the prevalence of the domicile principle is the territoriality paradigm: foreigners domiciled within the territory of a state are subject to that states’ national law in the same way that its nationals are. This clearly reinforces assimilationist ideas regarding the Indigenous population.

After the second half of the twentieth century, private international law in Latin America began to distance itself from European sources, and an Americanization of Latin American private law took place,³⁹ not only directly but also by means of international commercial treaties or through commercial bilateral agreements. Influence from Europe presupposed a strong focus on the state based on the Westphalian doctrine of sovereignty, while the influence of United States law would be rather more related to the expansion of what Muir Watt calls the informal empire, that is, power exercised by non-sovereign entities such as multinational corporations.⁴⁰ Considering today’s global institutional weave, which is characterized by fragmentation, the paths through which legal influence takes place have also become more complex. To give just one example, rules regarding secured transactions⁴¹ were discussed at the United Nations Commission on International Trade Law and at the Organization of American States and later on found their road into Colombian law on the matter,⁴² the objective of which is to go beyond facilitating access to credit for small enter- prises that do not own real estate to providing greater protection to the creditor.⁴³ Of course, European law and the law of the United States cannot be seen as absolutely separate from each other. After all, the civil law tradition and the common law both originate in Europe and their spread is the result of European imperialism.⁴⁴ One example of a field in

38 Private International Law Code, Law 61, 7 October 2015 art. 23. The reason for the Panamanian solution is simple: to benefit foreign investors. See Samtleben, supra note 33, at 88.

39 Mirow, supra note 3, at 170; Andrés Rodríguez Villabona, La Interacción entre Ordenamientos Jurídicos:

Trasplante, Recepción, Adaptación e Influencia en el Derecho, 2 Revista IUSTA 99 (2009).

40 Muir Watt, supra note 26.

41 See U.S. Uniform Commercial Code, Subpart 1. Law Governing Perfection and Priority (https://www.law.cornell.edu/ucc/9).

42 Act 1676 of 2013. See Fabio Andrés Bonilla, El Equilibrio Contractual en la Relación de las Garantías Mobiliarias: A Propósito de la Ley 1676 de 2013, 13 e-Mercatoria 131 (2014).

43 Ramiro Bejarano Guzmán, Garantías Mobiliarias, Ámbito Jurídico (2013) (https://www.ambitojuridico .com/noticias/columnista-impreso/civil-y-familia/garantias-mobiliarias). The influence of the United States in Colombian commercial and financial law started at the beginning of the twentieth century. Mirow, supra note 3, at 168.

44 Merryman & Pérez Perdomo, supra note 24, at 22.

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which continental Europe’s legal tradition has influenced that of the United States is constitutional law, which later spread to permeate not only European law⁴⁵ but also Latin American normative orders.⁴⁶ Legal influences also take place through legal education and scholarly research. For example, the depth of the influence of ideas developed in academia by the law and development movement⁴⁷ and its projects to reform legal education in the region is still underexplored.⁴⁸ The influence of both European law and United States law can also be seen through the prism of what Jorge Esquirol described in reference to the United States as the “hegemony of developed country law and jurisprudence . . . [that] rather than introducing more resource-rich actors into legal arenas in other locales, instead draws adherents from the periphery into the political and intellectual questions of interest at the center.”⁴⁹

As can be seen, the way in which private international law develops in Latin Amer- ican countries reflects processes that can be explained within the framework of the transnational legal theory described by López Medina: legal knowledge produced in central and prestigious nation-states is transplanted to peripheral or subordinated countries.⁵⁰ This center/periphery scheme is reproduced within the region. When this occurs, the question does not refer to legal transplants but instead to the fact that the states that are at the periphery vis-à-vis Europe and the United States move to the center, thereby pushing Indigenous normative communities to the outside.

B. Private International Law’s Disregard for Indigenous Normative Orders:

Internal Effects of Territorialism

While reproducing foreign private international law rules and approaches, Latin American republics have turned their backs on the fact that “non-state communities with their own normative orders have existed prior to, and independent from, the state.”⁵¹ My argument here is that the field thus developed a neocolonial character that has left profound traces in the region. The neocolonial character of private international law built upon modern liberal worldviews has contributed to discrimination against and exclusion of Indigenous communities’ ways of thinking and regulating themselves. The expansion of such conflict-of-law approaches in Latin America at the end of the nineteenth century took

45 Id.

46 The Supreme Court of Argentina, for instance, “has systematically referred to the United States’ Supreme Court case law and to the United States’ legal doctrine when interpreting the Argentinian Constitution.”

Kleinheisterkamp, supra note 13, at 268.

47 There is an approximative description of these movements in John Henry Merryman, Memoria de SLADE, in Culturas Jurídicas Latinas de Europa y América en Tiempos de Globalización (Héctor Fix-Fierro et al. eds., 2003).

49 Jorge Esquirol, Writing the Law of Latin America, 4 Geo. Wash. Int’l L. Rev. 693, 728 (2009).

50 López Medina, supra note 15.

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place thanks to the spread of Savigny’s approach to solving conflict-of-law situations in continental Europe.⁵² Presupposing the existence of the nation-state, Savigny’s method was based upon the territorial allocation of these kinds of situations. Thus, the focus on the state and its reinforcement of sovereignty and nationalism took the form of territorialism,⁵³ the stronger form of which is reflected in a conflict-of-law rule according to which the law of the same nation-state that enacted the rule has to be applied (unilaterality). Two kinds of effects are triggered by territorialism. External effects imply that the application of foreign (state) laws is excluded or ignored to serve the main political objective of the new republics, that is, independence from foreign powers.⁵⁴ The internal effects of such territorialism mean that conflict-of-law rules disregard the consideration and application of non-state normative orders, among which stand out the norms created by Indigenous communities that have been in existence in Latin America since before the Spanish arrived.⁵⁵ In addition to being an unwanted side effect of the use of territorialism as a tool in the fight against colonial power, the disregard for Indigenous normative communities also has a racist component: ensuring the predominance of European law means ensuring the predominance of white law, that is, non-Indigenous law. Such effects of territorialism in the realm of private international law are manifestations of the external and internal dimensions of sovereignty that some use, in a broader manner, to explain how power is exercised by nation- states in relation to other nation-states and to inhabitants of their territories.⁵⁶ In relation to the latter, those who led independence thought that “the multiplicity of juridical objects on which the law operated—royalty, cleric, merchant, gentry, Indian, slave”—had to be re- placed “with one juridical object, the citizen.”⁵⁷ As Aníbal Quijano asserted, liberal citizenship as an expression of the hegemony of eurocentrism “was, and still is, strictly speaking, an impossible aspiration for the immense majority of the population, made up of

‘inferior races’, that is, those non-equal to the others.”⁵⁸ Such liberal ideas shaped not only constitutions but the legal system as a whole.⁵⁹ In private international law, they manifest

52 Muir Watt, supra note 26, at 414-15.

53 Muir Watt, for example, underlines that “territoriality as a governing principle that private international law has been complicit in preventing the assertion of transnational corporate social responsibility” and that “[it]

has to a large extent curtailed the purview of human rights, public economic regulation or constitutional provisions.” Id. at 385.

54 Samtleben, supra note 28.

56 See Merryman & Pérez Perdomo, supra note 24; Muir Watt, supra note 26.

58 Aníbal Quijano, El “Movimiento Indígena” y las Cuestiones Pendientes en América Latina, 50 Nueva Época 51, 60 (2006).

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themselves in nationalistic territorial conflict-of-law rules that aim for cultural unity, which means, among other things, the use of a monolithic national corpus of legal concepts.⁶⁰

The internal effects of territorialism in Latin American countries are thus a mani- festation of the territorial private international law’s denial of difference,⁶¹ which seems to have been even stronger in terms of exclusion than the Spanish law applied during the colonial period, at least in theory. According to the Recopilación de leyes de los Reynos de las Indias (book 5, title 2, law 22),⁶² which aided in finding the legal rule applicable to a dispute,⁶³ the

“order and way of living of the Indios” and “their good uses and customs” had to be recognized by authorities if they were not against the Spanish religion (as it was ordered by book 2, title 1, law 4). Thus, “although usually obscuring Indigenous law completely, some colonial Spanish institutions adopted or coexisted with Indigenous legal developments.”⁶⁴ The reason for this might be that “certain aspects of Spanish legal culture matched closely with preconquest customary law, including tribute payments, jointly held lands, slavery and other forms of forced labor, and special courts for particular classes of litigants.”⁶⁵

Latin American private international law has over time come to give some attention to the external effect of territorialism. In relation to some subject matters, codifications have progressively responded to the need to accommodate techniques of private international law to permit the application of foreign law, for example, by means of bilateral (multilateral)⁶⁶ or flexible conflict-of-law rules that include alternative or soft connecting factors.⁶⁷ Such changes respond to their appropriateness “in an age of international trade and liberal progress”⁶⁸ and do not involve in any manner (re)thinking the internal effects of private international law’s territorialism in the region. The disregard for Indigenous communities’ forms of thinking and regulating themselves has been strengthened by the ways in which imported legal conflict-of-law institutions have been regulated and applied. The consequences of this extend to the present day. In fact, “no significant move has been made

60 See Merryman & Pérez Perdomo, supra note 24, at 48. This went forward despite criticisms by various thinkers of the modernity of some of the consequences of the imperial expansion of Europe.

61 See Ralf Michaels, Private International Law as an Ethic of Responsivity, in Diversity and Integration in Private International Law (Verónica Ruiz Abou-Nigm & María Blanca Noodt Taquela eds., 2019).

62 Boletín Oficial del Estado & Centro de Estudios Políticos y Constitucionales, Recopilación de Leyes de los Reynos de las Indias (1998) (https://www.boe.es/biblioteca_juridica/abrir_pdf.php?id=PUB-LH-1998- 62_2); see also Kleinheisterkamp, supra note 13.

64 Id.

65 Id. at 6.

66 A critical approximation to bilateralism (or multilateralism) appears in Horatia Muir Watt, Hospitality, Tolerance, and Exclusion in Legal Form: Private International Law and the Politics of Difference, 70 Current Legal Probs. 111, 126 (2017).

67 See examples in Symeon Symeonides, Codifying Choice of Law Around the World: An International Comparative Analysis (2014).

68 Muir Watt, supra note 66, at 131.

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as yet to tame multinational corporate misconduct in respect either of environmental protection or access of local communities to agricultural land,”⁶⁹ in spite of private international law’s essential link to “transnational expressions of private power.”⁷⁰ In addition, “the global free trade system harms local actors while paying insufficient attention to environmental or labor concerns or the needs of indigenous communities.”⁷¹ The way in which private international law is built, instead of any inherent theoretical or technical inability of the field itself, is what has led to the exclusion of Indigenous normative orders.

From both theoretical and technical perspectives, private international law’s nature is to deal with legal differences.⁷² Given its nature, the field might be able to consider In- digenous norms and offer some ways to repair, at least in part, the consequences of exclusion. Proposals to adopt a functional perspective instead of the territorial (state-centered) approach that has generally prevailed, such as that formulated by Andreas Fischer- Lescano and Gunther Teubner,⁷³ seem to be able to serve that end.André J. Hoekema has seen private international law as one of the “restricted number of ways to accommodate distinct legal institutions.”⁷⁴ Hoekema’s anthropological and empirical approximation places itself outside private international law but uses conflicts approximations to explain conflicts between jurisdictions within a particular Indigenous entity. This paper’s viewpoint distances itself from such approximations and instead stays within private international law, though it goes beyond a restrictive understanding of it as only referring to “the clash between national and foreign law.”⁷⁵

III. An Approximation to the Role of Human Rights

Without leaving European influence behind, Latin American law turned in the twentieth century to the American continent.⁷⁶ With this turn, “a private law, state-centric model, based on methodological monism . . . gave way in the latter part of the twentieth century to an economics-driven competitive paradigm, which introduced polycentricity (through

70 Id. at 353.

71 Paul Schiff Berman, Global Legal Pluralism: A Jurisprudence of Law Beyond Borders 133 (2012).

72 Michaels even says that “[i]f there were no private international law, then difference would always be denied.” Michaels, supra note 61, at 16.

73 “The problems that arise out of the judicial reconstruction of the other national legal order in cases of transnational legal questions can be overcome through a form of conflicts law that is not based on the determination of one territorial law which has the closest relation to the conflict, but which seeks instead to identify the functional regime to which the legal issue in question belongs.” Andres Fischer-Lescano &

Gunther Teubner, Regime-Collisions: The Vain Search for Legal Unity in the Fragmentation of Global Law, 25 Mich. J. Int’l L. 999, 1021 (2004).

74 André J. Hoekema, Multicultural Conflicts and National Judges: A General Approach, Law, Social Justice

& Global Development Journal (2008) (https://warwick.ac.uk/fac/soc/law/elj/lgd/2008_2/hoekema).

75 Id.

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law-making beyond the state) and glorified party autonomy.”⁷⁷ This has also taken place under the shade of international human rights law, which entered private international law hand in hand with a “new pluralist and recognitive paradigm.”⁷⁸ Human rights have actually had an enormous influence on a wide array of matters, such as family rights and international access to justice. As Diego Fernández Arroyo stressed, even though private international law “was conceived under a liberal paradigm and within a Westphalian framework . . . today, it lives immersed within a framework permeated by the paradigm of human rights and legal pluralism.”⁷⁹

One aspect of this latter paradigm is the recognition that has been given to Indige- nous rights. In the field of international human rights and “assisted by a global network of NGOs and activists, indigenous movements use international norms to influence local political or judicial actors.”⁸⁰ Paul Schiff Berman refers to this as “the ways in which local actors deploy the universalist language of human rights to advance positions strategically, the ways in which so-called local voices interact with seemingly international ones to create change to internationalist regimes and assumptions.”⁸¹ Berman’s cosmopolitan pluralist approach assumes that “preserving legal diversity is a good in and of itself because it means that multiple forms of regulatory authority can be assayed in multiple local settings,”⁸² and by doing so, it builds “a more robust field for alternative approaches to common problems.”⁸³ This embraces the transition from the old legal pluralism to the new one that Sally Engle Merry described as an expansion “from a concept that refers to the relations between colonized and colonizer to relations between dominant groups and subordinate groups.”⁸⁴ This would be in line with the way Michaels summarized the general postulate of global legal pluralism: “If globalization is largely about overcoming the monopolistic position of the state then it should also be about overcoming its monopolistic position in the creation, adjudication, and enforcement of law.”⁸⁵ In general, all versions of legal pluralism coincide around the idea that “law cannot and should not be restricted to the law of the state.”⁸⁶

77 Horatia Muir Watt, The Relevance of Private International Law to the Global Governance Debate, in Private International Law and Global Governance 1, 17 (Horatia Muir Watt & Diego Fernández Arroyo eds., 2014).

78 Id.

79 Diego Fernández Arroyo, El Derecho Internacional Privado en el Diván: Tribulaciones de un Ser Complejo, in Derecho Internacional Privado y Derecho de la Integración: Libro Homenaje a Roberto Ruiz Díaz Labrano 20 (CEDEP ed., 2013).

80 Berman, supra note 71, at 119.

81 Id. at 132.

82 Id. at 134.

83 Id.

84 Sally Engle Merry, Legal Pluralism, 22 Law & Soc’y Rev. 869, 872 (1988).

86 Id. at 1225.

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Considering such ideas, private international law within the human rights framework would come to take on a practical dimension of legal pluralism.⁸⁷

In the Latin American context, the recognition of Indigenous peoples’ rights has especially taken place within the framework of the Inter-American human rights system.

While recognizing Indigenous peoples’ rights on their lands, the Inter-American Human Rights Commission and Court have produced a solid doctrine that sustains a broad range of rights. Their decisions are based on an international corpus iuris⁸⁸ which embraces the ILO Convention No. 169 on Indigenous and Tribal Peoples of 1989 (ILO Convention No.

169),⁸⁹ ratified by most Latin American states,⁹⁰ and the Declarations of the United Na- tions⁹¹ and of the Organization of American States⁹² on the rights of Indigenous peoples, adopted in 2007 and 2016, respectively. National constitutions have also come to recognize Indigenous peoples’ rights.⁹³ States have thus come to recognize Indigenous peoples’ rights to use their customs and traditions and customary laws and institutions. Article 8 of the ILO Convention No. 169, for instance, states that “due regard shall be had to [tribal and Indigenous peoples’] customs or customary laws” and that Indigenous and tribal peoples

“shall have the right to retain their own customs and institutions.” Taking such recognition into account, it would be difficult today to sustain the conflict of laws’ exclusion of Indig- enous normative orders by simply appealing to their non-legal nature. Recognition of Indigenous peoples’ rights to use their customs and traditions and customary laws and institutions would support the idea “that law does not reside solely in the coercive commands of a sovereign power . . . [and] although ‘official’ norms articulated by sovereign entities

87 Id. at 1227.

88 See Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua (Judgment of Aug. 31, 2001); Case of Yatama v. Nicaragua (Judgment of June 23, 2005); Case of the Moiwana Community v. Surinam (Judgment of June 15, 2005); Case of the Sawhoyamaxa Indigenous Community v. Paraguay (Judgment of Mar. 29, 2006);

Case of the Moiwana Community v. Surinam (Judgment of Feb. 8, 2006); Case of the Yakye Axa Indigenous Community v. Paraguay (Judgment of June 17, 2006); Case of the Saramaka Peoples v. Surinam (Judgment of Nov. 28, 2007); Case of the Xákmok Kásek Indigenous Community v. Paraguay (Judgment of Aug. 24, 2010); Case of the Kichwa de Sarayaku Indigenous People v. Ecuador (Judgment of June 27, 2012); Case of the Kuna Indigenous People of Madungandí and the Emberá Indigenous People of Bayano and their members v. Panamá (Judgment of Oct. 14, 2014); Case of the Xucuru Indigenous People and its members v.

Brasil (Judgment of Feb. 5, 2018); Case of the Indigenous Communities of the Lhaka Honhat (Our Land) Association v. Argentina (Judgment of Nov. 24, 2020).

89 International Labour Organization Convention No. 169 Concerning Indigenous and Tribal Peoples in Independent Countries, June 27, 1989, 1650 U.N.T.S. 283.

90 Argentina, Bolivia, Brazil, Chile, Colombia, Costa Rica, Dominica, Ecuador, Guatemala, Honduras, Mexico, Nicaragua, Paraguay, Peru, and Venezuela.

91 G.A. Res. A/RES/61/295 (Sept. 13, 2007).

92 Third Plenary Sess., AG/RES.2888 (XLVI-O/16) (June 15, 2016).

93 See, e.g., the Political Constitution of the Plurinational State of Bolivia art. 2, the Political Constitution of Colombia art. 246, the Constitution of the Republic of Ecuador art. 57, the Political Constitution of the Mexican United States art. 2, the Political Constitution of Nicaragua art. 5, the Political Constitution of Panama art. 90, the Constitution of the Republic of Paraguay art. 63, the Constitution of Peru art. 2.19, and the Constitution of the Bolivarian Republic of Venezuela art. 260.

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obviously count as ‘law,’ such official assertions of prescriptive or adjudicatory jurisdiction are only some of the many ways in which normative commitments arise.”⁹⁴

Nevertheless, the existence and realization of human rights vis-à-vis the consideration of Indigenous normative orders presupposes a relation between the state and such normative orders. The recognition made by the aforementioned Article 8 of the ILO Con- vention No. 169 occurs within the framework of “national laws and regulations” and it cannot be “incompatible with fundamental rights defined by the national legal system.”

This is also made clear by local norms, an example of which is the Ecuadorean Constitution which states as follows: “The Indigenous peoples . . . are part of the Ecuadorian State, unique and indivisible.”⁹⁵As Michaels suggests, when the state relates to non-state normative orders, it is not willing to recognize such orders as law because it would undermine its own authority: “[A]cknowledgment may well be regarded not as a sign of strength, but as one of weakness.”⁹⁶ By instead adopting international and national instruments which contain rights in favor of Indigenous peoples, the state would be acting by delegation⁹⁷ by

“acknowledg[ing] the self-regulation of interested groups instead of regulating them by its own.”⁹⁸ In this way, the state would be giving “non-state communities sufficient space for the development and enforcement of their own norms” so that it is able “to maintain its legitimacy and the legitimacy of its lawmaking monopoly.”⁹⁹ However, as Hoekema states, today’s situation is different from the one that existed when Indigenous institutions did not have any kind of recognition.¹⁰⁰ According to him, this change is the basis of a “post-recognition interlegality,”¹⁰¹ that is, “a process of adoption of elements of a dominant legal order, both national and international, and of the frameworks of meaning that constitute these orders, into the practices of a local legal order and/or vice versa.” Post-recognition interlegality entails the “hybridisation of all the ‘legal orders’ living together within one society or

94 Berman, supra note 71, at 13; see also Michaels, supra note 6, at 1221.

95 Constitution of the Republic of Ecuador art. 56 (emphasis added); see also the Political Constitution of the Mexican United States art. 2, the Political Constitution of Nicaragua art. 3, and the Constitution of the Bolivarian Republic of Venezuela art. 126.

96 Michaels, supra note 6, at 1236. This would also lie behind their disregard as non-law units in comparative law as well. See also Mathias Siems, The Power of Comparative Law: What Types of Units Can Comparative Law Compare?, 67 Am. J. Comp. L. 861 (2019).

97 Apart from delegation, the state could reject non-state normative orders by legally stating that only law can be applied. This would happen even with respect to interpersonal conflicts rules, which according to Michaels, constitute a “non-territorial federalism.” The state could also incorporate non-state law, which, for example, happens in the case of the lex mercatoria, or act by deference, that occurs when the state “denigrates the norms created by [non-state] communities to the status of facts.” Michaels, supra note 6, at 1233.

99 Id. at 1237.

100 André J. Hoekema, Interlegalidad y Reconocimiento Estatal del Derecho y la Justicia Comunal, 12 Foro Jurídico 174 (2013).

101 Hoekema, supra note 74.

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broader community.”¹⁰² This approach does not reject the idea that human rights reinforce the authority of the state vis-à-vis non-state normative communities,¹⁰³ but at the same time, it embraces the idea of recognition, which would mean that human rights are not a state’s creation but something that pre-exists.

Based on the aforementioned considerations, human rights can actually play a role in supporting private international law in Latin America so that it can address some of the discussed effects of its neocolonial character. The new ways of thinking introduced in the region by means of neo-constitutionalism imply, among other things, an examination of the compatibility of private international law with human (fundamental) rights in both decision- making and lawmaking. This signifies a new methodological paradigm in order to carry out such an examination (proportionality).¹⁰⁴ But human (fundamental) rights have exceeded parliaments and courts and are nowadays also decisive in shaping societal desires and needs.¹⁰⁵ They thus bring an ethical dimension to private international law. At its heart, private international law moves around problems that arise from legal diversity and the degree to which we are willing to accept foreign normative orders. As Michaels argues:

“[O]ur ethical obligations are towards people, not laws. But laws matter only insofar as they apply to people, and people in return come with laws.”¹⁰⁶ Thus, human rights call upon private international law to become less neutral¹⁰⁷ or less technocratic¹⁰⁸ so that formal justice and material (substantive) justice come closer together.¹⁰⁹ It is important to remember that private international law (like law in general) is not static; quite to the contrary, it is called upon to transform in order to provide for society’s aspirations and needs. Though certainly imperfect, human rights instruments which incorporate Indigenous peoples’ rights clearly indicate that, in the resolution of conflict-of-law situations in which Indigenous normative orders are involved, these normative orders cannot continue to be approached as mere “exotic by-products of colonialism.”¹¹⁰ Such a consideration of human rights would lead to an unfolding of the “emancipatory potential”¹¹¹ of private international law, and it

102 This would be the result of processes, such as the recognition of customary institutions originated under foreign law (institutional recognition), the space left by the same system for different practices (normative recognition), the regulation of party freedom within the civil law framework, or the granting of groups rights.

Hoekema, supra note 74, at 3.

103 See Michaels, supra note 6.

104 See Muir Watt, supra note 26.

105 E.g., Watson noted in this respect that “a legal institution, to be at all meaningful, depends on a societal institution.” Watson, supra note 30, at 68; see also Michaels, supra note 6, at 1238: “Law is a social construct.”

107 Id.

108 Riles, supra note 1.

109 See, e.g., Symeonides, supra note 67.

111 Id.

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might thus contribute to some degree to the pluri-ethnical project defended by Latin Amer- ican critical approaches.¹¹²

IV. Private International Law’s Consideration of Indigenous Normative Orders

In Latin American private international law, what Michaels calls the “irrepressible need for rules”¹¹³ has been evident. This is reflected in the early development of national codifications and the adoption of regional treaties from the second half of the nineteenth century onward. Such rules are to a large extent still rooted in schemes that emerged within the independence context of the nineteenth century. However, due to the recognition of Indig- enous normative orders within the human rights realm, Latin American private international law must revisit the internal effects of its characteristic territorialism. In what follows, I explore how Latin American private international law can respond, and is to some extent actually trying to respond, to some demands regarding the recognition of Indigenous peoples’ normative orders.

First, I will consider this subject from a theoretical point of view. In this sense, the consideration of Indigenous normative orders can be seen through the idea that a legal comparison should be more than a mere formal contrast of codified rules. This idea has been suggested by López Medina in general terms,¹¹⁴ but it is actually well known in Latin American private international law. The work of Werner Goldschmidt, who was born in 1910 in Germany, is relevant in this respect. His ideas have been especially influential in Argentina, where he lived and worked as an academic from 1949 until his death in 1987.¹¹⁵ He proposed the so-called legal use theory (teoría del uso jurídico).¹¹⁶ This theory is reflected in one of the most important regional treaties on conflict of laws, the Inter-American Con- vention on General Private International Law Rules of 1979,¹¹⁷ and in national codifications as well.¹¹⁸ It prescribes that judges in applying a foreign law have to decide as if they were the judges of the country of origin of that foreign law.¹¹⁹ Thus, if foreign law is to be applied in order to resolve a cross-border case, they have to apply the foreign legal use instead of the

112 See, e.g., Quijano, supra note 58.

115 Luciana B. Scotti, Werner Goldschmidt: El Gran Maestro del Derecho Internacional Privado del Siglo XX, in La Facultad de Derecho de la Universidad de Buenos Aires hacia su Bicentenario (Tulio Ortiz & Luciana B. Scotti eds., 2019).

116 Werner Goldschmidt, La Consecuencia Jurídica de la Norma del Derecho Internacional Privado (1935).

117 See Organization of American States, Inter-American Convention on General Private International Law Rules, art. 2, Aug. 5, 1979, 1457 U.N.T.S. 3.

118 Código Civil y Comercial de la Nación [Cód. Civ. y Com.] [Civil and Commercial Code] art. 2595 (2014) (Arg.); Private International Law Act of Uruguay art. 2 (2020); Civil Code of Peru art. 2055 (1984).

119 See a similar approach regarding the relation to the other “as if . . . one were part of the other” in Michaels, supra note 61, at 25; see also Karen Knop et al., From Multiculturalism to Technique: Feminism, Culture, and the Conflict of Laws Style, 64 Stan. L. Rev. 589 (2012).

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foreign law.¹²⁰ This is in opposition to doctrines that conceive foreign law as a normative order with the thesis that foreign law is a fact, pointing out that the substantive judgment with the highest degree of probability would be rendered by the foreign judge.¹²¹ A legal comparatist may identify some similarities here to legal-consciousness analyses,¹²² while a private international law specialist would easily see how this theory considers foreign law not as law but as fact,¹²³ and by doing so, it gets close to the vested rights theory of the common law.¹²⁴ This theory cannot actually be identified as a genuine Latin American legal (private international law) theory (if such a thing exists). Goldschmidt himself recognized that its main features are also sustained by other European authors.¹²⁵ Thus, this is again an expression of legal knowledge produced in central and prestigious nation-states that is transplanted in peripheral or subordinated countries.¹²⁶

Goldschmidt’s ideas presuppose nation-states in the same territorial way as does traditional conflict-of-laws. Even when the status of foreign law vis-à-vis national law is put into question, the foreign normative orders that are considered are only those that have their origins in states. It is, however, interesting that under the legal use theory, the comparison process between national and foreign laws that precedes decision making in conflict-of-law cases shall not be satisfied with a mere formal comparison. This coincides with López Medina’s suggestion about going beyond comparative legislation because it would impede us from really understanding foreign legal systems.¹²⁷ In his early works, Goldschmidt maintained that creativity is an essential element in such a process.¹²⁸ In spite of the fact that Goldschmidt’s ideas are based on the existence of states (he does not consider the existence of non-state normative orders at all) and that they are thus tied to territorialism, the creativity they require from courts is, to some extent, compatible with the new approaches regarding the relation between private international law and legal pluralism (e.g., the cosmopolitanism proposed by Berman).¹²⁹ Such creativity allows courts to put into practice the necessarily abstract formulation of legal rules,¹³⁰ though bound to some degree

120 See Piero Bruno Mosciati Olivieri, La Aplicación del Derecho Extranjero: Teoría del Uso Jurídico, 20 Revista Chilena de Derecho 39 (1993); Scotti, supra note 115, at 65.

121 Mosciati Olivieri, supra note 120; Scotti, supra note 115, at 65.

122 See Geoffrey Samuel, An Introduction to Comparative Law and Method 50 (2014); Mattei, supra note 30.

123 Goldschmidt, supra note 11, at 142.

124 See Michaels, supra note 7, at 58.

125 Such as Mauro Cappelletti, Jürgen Samtleben, or Gerhard Luther. Goldschmidt, supra note 11, at 143.

127 Id. at 74.

128 Mosciati Olivieri, supra note 120.

130 Goldschmidt, supra note 116; Mosciati Olivieri, supra note 120.

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by unpredictability.¹³¹ If Michaels’s typology is followed, assimilation certainly occurs in this process since judges “always apply their own law,”¹³² and by doing so, they transform foreign (strange) law into a real legal status.¹³³ The legal use theory might contribute to a more tolerant society since it looks upon tolerance of what is foreign and different as the basis of conflict- of-laws.¹³⁴ As Berman says, “a legal system that demands tolerance of diversity rather than its erasure is more likely to create the context for a tolerant society than one that, in contrast, seeks uniformity as its goal.”¹³⁵

From a lawmaking perspective, one might go back to human rights and consider Goldschmidt’s three-dimensional vision of private international law (trialismo): normative, sociological, and axiological.¹³⁶ If a sort of ethical character in human rights is acknowl- edged, then it becomes feasible to place the recognition of Indigenous normative orders at an intersection between the normative and the axiological dimensions of private international law. This would be a way for private international law to demonstrate its potential to provide us, as Michaels indicated, “with a technique of ethics, a technique that helps us conceptualize and address some of the most pressing issues of our time.”¹³⁷

A generic example of how human (fundamental) rights can be translated into private international law terms is their inclusion in the notion of public policy. This can be found, for example, in German private international law,¹³⁸ which has influenced Latin American legal systems (such influence is evident in decisions taken by the Colombian Supreme Court with respect to the recognition of foreign judgements),¹³⁹ as well as by means of other techniques by which private international law can respond to the need to observe human rights in specific subject matters.¹⁴⁰ In this sense, national codification proposals in the field of private international law in Latin America are using some old and some new techniques in order to pay attention to the need to observe Indigenous peoples’ normative orders within

132 Goldschmidt, supra note 116, at 70.

133 Id.

134 Scotti, supra note 115; Michaels, supra note 61.

136 See Veronica Ruiz Abou-Nigm, Bridging and Balancing: Diversity and Integration in Private International Law, in Diversity and Integration in Private International Law (Veronica Ruiz Abou-Nigm et al. eds., 2019).

138 Einführungsgesetz zum Bürgerlichen Gesetzbuche [EGBGB] [Introductory Act to the Civil Code] art. 6 (1994).

139 See, e.g., Supreme Court of Colombia, Civil Section, Decisions of July 27, 2011 and July 12, 2017, which stated that fundamental rights are part of public policy. The Constitutional Court, for its part, has ordered the application of foreign law in order to safeguard fundamental rights (e.g., right to due process). See Constitutional Court of Colombia, Decision No. SU-768, Oct. 16, 2014.

140 For example, in private resolution of disputes concerning business and human rights. See The Hague Business and Human Rights Arbitration Rules (https://www.cilc.nl/project/the-hague-rules-on-business- and-human-rights-arbitration/).

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the framework of conflict-of-laws. By doing so, such proposals point to the need mentioned by Hoekema for “common domestic ‘conflicts of law’ principles and rules which are en- dorsed by both the majority and minorities.”¹⁴¹

An example of this can be found in the Peruvian codification project which aims to reform the existing national private international law regime and is currently under discus- sion in the parliament.¹⁴² This project contains a rule which states that overriding mandatory provisions¹⁴³ covers the rights of Indigenous peoples (i.e., communities or peoples in the Andean and Amazonian nations): “Provisions to protect the rights of communities or peoples in Andean and Amazonian nations over the natural resources existing on their lands, traditional knowledge, conservation of biological diversity, sustainable use of resources and plant varieties have the character of overriding mandatory provisions.”¹⁴⁴ This rule means that no foreign law can be applied by Peruvian courts if it goes against the kinds of rights mentioned in the norm (i.e., those related to lands, traditional knowledge, conservation of biological diversity, sustainable use of resources, and plant varieties) that have been recognized in favor of Indigenous peoples by the national legal system. From an abstract perspective, it calls our attention to the fact that the application (recognition) of Indigenous rights translates into a limit on the application of a normative order (foreign law) that is also different from the law of the forum. However, in concrete terms, recognizing Indigenous norms would act as a protection against abusive exploitation of natural resources by multinational corporations. Though such rights are already recognized by law, the proposed rule could help avoid the concealment of human rights or environmental dimensions of a case by characterizing it as one of trade or investment.¹⁴⁵ Thus, the advantages of such a rule could be differentiated in the following manner: they seem to be more directly related to the protection of the environment; they aim to protect Indigenous peoples themselves; and, finally, they are less directly (but still) related to some type of remedy for the long-lasting historic exclusion of Indigenous peoples’ ways of life in the field of private international law.

Another example can be found in Colombia where a recent private international law codification proposal¹⁴⁶ not only includes a rule that follows the aforementioned Peru- vian model but also incorporates a new conflict-of-law approach according to which Indigenous normative orders are directly applicable. Applying the normative order of an

141 Hoekema, supra note 74, at 2.

142 Project to reform private international law rules included in the Civil Code of Peru art. 2049-B.

143 To illustrate the way this private international law mechanism works, see, e.g., Commission Regulation 2008/593, art. 9, 2008 O.J. (L 177) 6 (EC).

144 Civil Code of Peru art. 2049-B.

145 Muir Watt, supra note 26.

146 Instituto Antioqueño de Derecho Internacional Privado, Proposal for a General Law of Private International Law in Colombia (2021).