International Law Process: A Comprehensive Guide

Posted on Oct 26, 2024 in Law & Jurisprudence

Fundamental Principles of International Law Process

1. Jurisdiction

Jurisdiction is the authority of a state to resolve conflicts through judicial decisions (res judicata). Each state defines its jurisdiction through explicit rules. When a legal relationship involves multiple states, international procedural rules determine which authority has jurisdiction. These rules apply when a state court must decide its jurisdiction over a dispute with foreign elements or when obligated to execute a foreign judgment. The general principle is to assign jurisdiction to the courts of the defendant’s domicile.

2. Lis Pendens

Lis pendens occurs when two identical cases between the same parties are presented before different courts. It is an exception to the court’s knowledge of the trial. According to Article 58 of the Law on Private International Law, the exclusive jurisdiction of the country’s courts is not excluded because the same matter is pending before a foreign court. This aligns with the Civil Procedure Code, allowing resistance to lis pendens when it doesn’t affect the exclusive jurisdiction of Venezuelan courts, as permitted by international treaties. The ineffectiveness of lis pendens against Venezuela’s exclusive jurisdiction is based on public interest. The mere connection or identity of trials isn’t enough to invalidate Venezuelan jurisdiction over pending litigation in foreign courts, due to its full power and exclusive jurisdiction.

3. Procedural Submission

The parties’ submission to a state’s court jurisdiction is generally accepted in International Procedural Law.

4. Regulatory Jurisdiction

The Venezuelan judge’s lack of jurisdiction regarding a foreign court can be declared ex officio or upon request at any stage of the case. The regulation suspends proceedings until a decision is made. If Venezuelan jurisdiction is admissible, the case continues. If not, the verdict is consulted with the High Court’s political and administrative chamber. If confirmed, the case is closed. However, related cases before the Venezuelan judge are not excluded. These principles are in Articles 57 and 58 of the Act on Private International Law.

5. Letters Rogatory

Letters rogatory are communications between authorities in different countries for various errands outside the court’s jurisdiction. They request another judge to perform tasks like serving documents or summoning individuals, which are limited by territorial jurisdiction. This is supported by international conventions or treaties, and failing that, by international reciprocity. Thus, a letter rogatory (also called “letters of request” or “international appeal”) is a request from one judicial authority to another in a different country to take necessary steps for a procedure in the first, based on treaties.

6. Effectiveness of Foreign Judgments

Due to sovereignty, foreign judgments have no force beyond their state’s territory. Only there does the state ensure respect for its judicial decisions. However, this can create unfair results regarding rights acquired under a judgment in one state but enforced in another. International cooperation overcomes this through a procedure for the extraterritorial effect of judgments. Exequatur respects acquired rights and safeguards territorial sovereignty. It is the process by which a country’s competent court grants enforcement powers to a foreign decision.

In Venezuela, foreign judgments are executable if they meet these legal conditions:

Issued in civil or commercial (private) matters.
Have res judicata status in the issuing state.
Not relate to real rights on immovable property in the Republic.
Issuing court has jurisdiction.
Defendant received due process and a fair defense.
No pending trial on the same object in Venezuelan courts.

This eliminates the reciprocity requirement, meaning only judgments from countries enforcing Venezuelan judgments without prior review can be enforced.

Venezuela also requires indirect international procedural competition, as the trial court must have jurisdiction where the ruling was issued, according to Venezuelan jurisdictional principles.

7. Non-Withdrawal of Jurisdiction

Non-withdrawal maintains Venezuelan courts’ exclusivity in private international law cases. Article 47 of the Act states that our courts’ jurisdiction cannot be annulled in these cases:

Disputes over real property in the Republic.
Judgments on non-compromisable matters.
Judgments affecting Venezuelan public principles.

8. Internal Competition

Jurisdiction is the set of attributes of a legal body in a given territory, requiring a competition framework. Article 48 of the law on private international law refers to Articles 49, 50, and 51 for domestic competition issues.

Article 49: Jurisdiction over financial actions:

Actions regarding movable or immovable property: Court where the assets are located (lex rei sitae).
Actions regarding obligations or contracts: Court where the obligation is performed or the contract concluded (lex loci executionis or lex loci celebrationis).
Defendant served within the Republic: Court where the citation occurred.
Parties referred to Republic courts: Competent court based on preceding criteria, or the court in the capital.

Article 50: Jurisdiction over universal actions relating to goods:

When the law governs the merits: Court of the person’s domicile under Venezuelan jurisdiction.
Assets within the Republic: Court where most of the property is located.

Article 51: Jurisdiction over actions on civil status and family relations:

When the law governs the merits.
Parties expressly or implicitly subject to its jurisdiction: Court where the cause is linked to the Republic.

9. Protection Measures

Article 43 of the Act on Private International Law addresses interim protection measures. Courts can order measures to protect individuals in Venezuelan territory, even without jurisdiction on the merits. This broad provision ensures legal security for anyone temporarily in the country, preventing illusory trials.

Recognition and Enforcement of Foreign Judgments and Acts

1. Concept

The study of recognizing and enforcing foreign judgments is crucial due to its impact on justice administration, both domestically and internationally. This Private International Law issue aims for international validity of judgments while having a procedural nature internally, considering judicial function as a state activity subject to territoriality. The ruling resolves legal uncertainty and represents the contestants’ rights.

2. Recognition and Enforcement

2.1. Doctrine

Recognition requires meeting certain requirements in the country where it’s asserted, as a judge’s authority ends at state boundaries. Different systems regulate this, varying in form and effects granted to foreign judgments. These judgments have three purposes:

Evidentiary value: The judgment is a public document, serving as evidence of facts witnessed by the judge, including parties’ appearance, process existence, events, and decisions.
Res judicata effect: Prevents relitigation between the same parties (relevant to private international law). The decision’s core is unassailable.
Enforceability: Allows stakeholders to enforce the judgment, which becomes an executive title.

2.2. Venezuela’s Position

Article 850 of the Code of Civil Procedure states that the Supreme Court declares the execution of foreign judgments, without which they have no effect as evidence, finality, or execution. Only judgments from countries enforcing Venezuelan judgments without prior review are enforceable. This must be proven with authentic evidence.

Venezuela follows the reciprocity system, verifying the foreign decision’s enforceability. This general system can be supplemented by treaties. The foreign decision may have extraterritorial enforcement or res judicata if there’s legislative or diplomatic reciprocity. The current case may allow extraterritorial effect as another legislative or diplomatic guarantee, or judicial review of the sentence’s merits, only if such review won’t affect the ruling in either country.

Venezuela’s system is mixed, requiring certain conditions for enforcement depending on the sentence. Otherwise, the foreign decision has extraterritorial enforcement or res judicata if there’s reciprocity. Similar systems exist in Germany, Poland, England, the USA, and Lebanon.

2.3. Exequatur

Exequatur is the process by which a foreign judgment or arbitral award, finalized in private matters, can have res judicata or be executed in another state.

2.3.1. Substances Subject to Enforcement

Judgments or awards must be private (civil or commercial) and issued by judicial authorities. Decisions by non-court agencies or administrative decisions are generally excluded. However, there’s a recent trend towards enforcing such decisions due to international economic and political changes.

2.3. Court

The Supreme Court grants enforcement, as it’s responsible for enforcing foreign judgments, which are otherwise ineffective. Judgments from countries enforcing Venezuelan judgments without prior review are enforceable in the Republic.

3. Extradition

Extradition is the process of returning a person accused or convicted in one state, arrested in another, for prosecution or punishment.

Extradition, even without treaties, may occur when:

The offense is committed in the requesting state’s territory.
The offense is committed in a third state by a requesting state citizen, unless claimed by the state where the crime occurred.
The offense is committed in a third state by a non-citizen subject to the applicant, for crimes under national law, even if committed abroad by a foreigner (Cabanella’s Legal Dictionary).

Extradition is the request to another state for the surrender of a person who committed or is believed to have committed a crime, to serve a sentence or be judged.

2. Classes

Extradition can be active or passive.

2.1. Active Extradition

When a defendant, against whom charges are filed and a prison order issued, is in a foreign country, the judge addresses the Supreme Court with a copy of the proceedings. If someone serving a sentence escapes, the judge responsible for implementation addresses the Supreme Court. Within 30 days of receiving documentation, the Supreme Court decides whether to seek extradition. If so, it sends a copy to the National Executive.

2.2. Passive Extradition

If a foreign government requests extradition from Venezuela, the Executive refers the application and documents to the Supreme Court.

Precautionary Measure

If an extradition request lacks documentation but offers to provide it later, and requests the defendant’s apprehension, the Executive may order arrest, setting a maximum 60-day limit for documentation submission, depending on the case’s severity, urgency, and nature. Extradition depends on reciprocity and collaboration between countries. The judge may request extradition on their own initiative or upon request. The formal request is made by the Minister of Justice to their counterpart in the state where the sentence is pre-2.3.1.

Measures in Foreign Caulativas

The National Executive may request custody and retention of objects related to the offense from the country where the person is sought, based on the competent court’s request to the Supreme Court (Article 392).

2.3.2. Release of the Detainee

If documentation isn’t provided within the deadline, the Executive orders the detainee’s release, without prejudice to re-arrest if documentation is later received. Foreign governments may appoint lawyers to defend their interests.

2.4. Extradition in Venezuela: Principles and Procedures

Extradition, a mechanism of international assistance, aims to prevent impunity for fugitives evading justice. Member states commit to surrendering individuals prosecuted or sentenced for crimes committed in one state and fleeing across borders.

Principle of Non-Surrender of Nationals

Article 69 of the Constitution prohibits extraditing Venezuelans. Article 6 of the Criminal Code previously stated that Venezuelans could not be extradited for any reason. Article 345 of the Convention on Private International Law (Bustamante Code) states: “Contracting States are not required to surrender their nationals. The nation refusing surrender must prosecute them.”

Principle of Double Jeopardy

The act motivating extradition must be a crime in both the requesting and requested states.

Principle of No Extradition for Political Crimes

Article 6 of Venezuelan law prohibits extradition for political offenses or related crimes.

Specialty of Extradition

The requesting state must only try the extradited individual for the act specified in the request.

Limitation of Prosecution or Punishment

Extradition is denied if prosecution or punishment is time-barred in either state before the request.

3. Requirements

Most extradition treaties require:

Proof of cause for prosecution or punishment.
The offense is of sufficient severity or among those listed for extradition.
The offense is defined as such in both states’ laws.

This requires:

Conviction or proceedings of certain gravity in the other state.
A sentence exceeding one year or a process with potential punishment of over two years.
Requesting state has jurisdiction.

Extradition is denied to states with the death penalty or if the individual has already been tried for the same crime.

3.1. Extradition of Nationals

Most extradition treaties limit extradition based on nationality. Most states refuse to extradite their nationals. Only the UK, USA, Argentina, and Uruguay agree to extradite nationals. Others refuse and even have constitutional bans. International law doesn’t obligate extradition of nationals, but the state must prosecute the offender and inform the requesting state.

Extradition is inappropriate if:

The person served their punishment, received amnesty, pardon, or acquittal for the same offense.
Prosecution or punishment is time-barred in either state before the request.

Personal Status, Domicile, Form of Acts, Things, Real Rights, Marriage, and Succession

1. Personal Status

Personal status is the set of institutions defining an individual’s status as a subject of rights.

2. Materials Comprising Personal Status

Personal Law ensures consistent regulation regardless of location, avoiding changes in legal systems. This is crucial where nationality isn’t the determining factor, as in many Latin American countries.

2.1. State and Capacity of Individuals

Capacity to act is the ability to perform certain legal acts. Legal capacity, or aptitude for possessing rights and obligations, is identified with personality.

2. Domicile

Domicile is where a person resides or has their principal place of business and interests, requiring both intent (animus) and material fact.

2. Importance of Domicile

Confers jurisdiction, determining where an individual can sue or be sued.
Governs personality, as it’s where they establish their principal place of business and family interests.
Defines the system regulating status and capacity, especially where nationality isn’t the primary factor.

3. Form of Acts

Public International Law requires adherence to rules for valid international legal acts. The locus regit actum rule dictates that the form of acts is subject to the law of the place where they are executed. This universally accepted rule is considered international custom.

1. Purpose of Forms

Forms improve justice administration, serve as evidence, prove acts, protect subjects, and inform third parties. Most importantly, they ensure act validity, as compliance avoids doubts about legality.

Enabling forms: Grant power to perform an act (e.g., authorization for a wife to trade). Governed by personal law.
Extrinsic forms: Prove the act’s existence through public or private documents. Governed by locus regit actum.
Intrinsic forms: Constitute the act’s substance (e.g., agreement in a contract). Not considered true forms.
Means of implementation: Procedural and formal requirements for legal actions. Governed by lex fori.
Means of advertising: Disclose events and their implications to third parties.

3. Locus Regit Actum in Venezuelan Legislation

Article 11 of the Civil Code states that the form and formalities of legal acts issued abroad, even if essential, are valid in Venezuela if they comply with the laws of their origin. If Venezuelan law requires a public or private instrument for proof, this must be fulfilled. This establishes the locus regit actum rule in Venezuela.

4. Things and Real Rights

Real law is a person’s direct power over a thing, the relationship between a legal subject (person) and a legal object (thing). It’s a legal relationship between one person as active and all other taxpayers.

1. Things in the International Regime

Things are corporeal realities subject to the jurisdiction and law of their location. Movable and immovable property have different regulations in each state, but private international law determines the appropriate competition. Goods are classified as:

Res singulae (singular things): Studied individually.
Universitas rerum (universal things): Treated as a whole.

Res singulae have different regimes, while universitas rerum have universal rules.

2. Res Singulae

Distinction between immovable and movable property:

Immovable property: Subject to lex rei sitae due to constant contact with the location’s law. Conflicts arise when property is classified differently in different states, but the owner’s right is respected subject to the transfer location’s law. Article 105 of the Bustamante Code states that property is subject to the law of its situation.
Movable property: Can be subject to personal law (domicile or nationality) or the law of the situation (supported by authors like Savigny).

3. Special Situations for Movable Property

Rights validly acquired in one country should be respected elsewhere, with exceptions:

Lack of necessary legal institution: E.g., pledge constituted abroad requiring delivery to the creditor; if moved to a country where delivery isn’t required, the right can’t function. Another example is unalienable museum property stolen and sold; if returned, the third party’s acquired rights aren’t respected.
Rights acquired under exceptional political measures: Generally not accepted internationally, as political order isn’t sufficient grounds for acquiring rights. Confiscated property has no international value.
Rights acquired under exceptional war measures: If acquisition complies with international public law, it’s validated.

Ships and aircraft are subject to the law of the flag due to constant movement. This provides legal certainty despite movement. Public order limits this law’s application. The Bustamante Code covers this in Articles 274-278.

4. Things in Transit

Doctrines regulating things in transit include: lex loci futuri (law of the destination), law of the last performance, and law of the owner.

5. Incorporeal Movable Property

Property rights that are movable objects. Obligations within credit are subject to the obligations system. Article 533 of the Venezuelan Civil Code considers rights like bonds and shares as personal property.

6. Universitas Rerum

Governed by the law governing the institution itself (e.g., inheritance, bankruptcy, marital property), as they are not real rights.

7. Prescription

Prescription, a means of acquiring rights or freedom from obligations, is problematic in private international law. States generally link it to public order for rights stability. Acquisitive prescription is subject to the lex rei sitae, but public order can lead to lex fori application. The lex rei sitae applies in principle, but lex fori applies if it sets a shorter period.

5. Marriage

Marriage, a socially, culturally, or legally recognized relationship between two or more people, provides mutual protection or protects offspring. Motivations include personal, economic, sentimental, family protection, or social benefits. Marriage can be civil or religious, with varying rights, duties, and requirements.

4. Intrinsic Conditions of Marriage

These include consent, capacity, and applicable law systems.

Consent: International declarations and the Venezuelan Civil Code (Article 49) require free consent for marriage validity.
Capacity: Traditionally linked to personal law, especially in European and some American legislation. In some South American countries like Venezuela, it’s governed by domicile law. The Bustamante Code (Article 36) subjects partners to personal law for capacity, consent, impediments, and dispensations. Private International Law (Article 21) subjects capacity to domicile law.
Applicable law: Three systems exist: personal law, territorial law, and law of the husband’s domicile.

5. Extrinsic Conditions of Marriage

Three basic forms of marriage:

Religious forms: Each religion has its own forms. In Venezuela, Roman Catholicism prevails, but Article 59 of the Constitution allows religious freedom.
Civil forms: Generally accepted by most states, requiring solemnity and authenticity. Few countries prioritize religious forms over civil ones.
Consensual forms: Based on consent without solemnity, originating from customs (e.g., Scotland). Place of marriage is relevant.
Diplomatic and consular marriages: Some states empower officials to witness marriages, sometimes requiring nationals of the represented country or officials within the diplomatic mission. Venezuela doesn’t empower officials for such marriages.

6. Venezuelan Legislation on Marriage

The Civil Code regulates marriages of Venezuelans abroad and foreigners in Venezuela:

Venezuelans abroad: Article 103 requires submitting a certified marriage certificate to Venezuelan authorities within six months for registration.
Foreigners in Venezuela: Allows foreigners to marry but requires adherence to Venezuelan impediments, even if permitted by foreign law. Impediments based on race, rank, or religion aren’t recognized. Foreign permission is required if mandated by their national law.
Impediments: Special circumstances invalidating marriage, considered exceptions to international public order. Venezuela prohibits marriage violating these impediments, even if permitted by foreign law.

Bustamante Code Enforcement: Regulates legal conditions for marriage:

Personal law governs capacity, consent, impediments, and dispensations.
Foreigners must demonstrate compliance with their personal laws, through certification or other means. Local law applies to non-dispensable impediments, consent, binding force, opposition, reporting impediments, and consequences of false reporting.
States aren’t bound to recognize marriages violating provisions on dissolving previous marriages, consanguinity, affinity, adultery, attempt on spouse’s life, or other nullity causes.

7. Effects of Marriage

Marriage’s effects are personal and economic. Economic effects have been studied extensively, unlike personal effects, which were traditionally subject to the husband’s law. With the recognition of separate personal laws for spouses, new conflicts arise.

Capacity is traditionally linked to personal law. European doctrine and legislation mostly subject it to domicile law, as do several American laws. Montevideo Group countries regulate it by domicile law. Private International Law subjects capacity to domicile law with a distributive formula.

Personal effects: Include internal rights and duties (linked to social order) and those affecting spouses’ capacity. Spouses acquire equal rights and duties, such as cohabitation, fidelity, mutual support, and household maintenance.
Economic effects: Rules, established expressly or tacitly, regulating property acquisition, enjoyment, and management during marriage.

6. Succession

Definition

Mortis causa succession is acquiring ownership of a deceased person’s belongings. Four scenarios are relevant to international law:

Deceased is a foreign national.
Assignees are foreign nationals.
Property is in a different state than the deceased’s residence or nationality.
Heirs have different nationalities or residences.

2. Systems Governing Succession

Three systems exist:

Lex rei sitae: Law of the property’s location. Requires multiple successions if property is in different states.
Eclectic system: Deceased’s law for movable property and lex rei sitae for immovable property (France and Sweden).
Personal law system: Deceased’s nationality or domicile law (Venezuela’s LDIP, Article 34, uses domicile law).

3. Character of Succession Status

Two systems exist:

Unit succession: One law regulates all succession matters, regardless of property type. Favors deceased’s personal law over lex fori or lex rei sitae.
Multiple inheritance: Intestate succession governed by lex rei sitae, leading to different laws for the same succession if property is in different countries.

International succession involves wills made with foreign assets or heirs of different nationalities or residences. This respects testator autonomy unless it violates public policy. Testator capacity is governed by personal law. Intestate succession is determined by state laws in the absence of a will. Will form is subject to locus regit actum.