Treaty on International Procedural Law

TITLE I - GENERAL PRINCIPLES

Article 1

Trials and their incidents, of whatsoever nature, shall be conducted in accordance with the procedural law of the State in which the trials are held.

Article 2

Proofs shall be admitted and weighed according to the law applicable to the juridical act which forms the subject-matter of the proceedings. Those proofs are excluded which, by their character, are not authorized by the law of the place where the trial is held.

TITLE II - OF LEGALIZATION

Article 3

Sentences and homologated awards rendered [in a signatory State] in regard to civil, commercial or contentious-administrative matters, public indentures and other documents executed by functionaries of a [signatory] State, and letters requisitorial or rogatory [therein issued], are considered authentic in the other signatory States, in accordance with this treaty, provided that they are duly legalized.

Article 4

The legalization shall be considered as executed in due form when it is carried out in accordance with the laws of the country from which the document in question issues, and when that document has been authenticated by the diplomatic or consular agent accredited to the said country by the Government of the State in whose territory the execution is requested.

TITLE III - OF THE ENFORCEMENT OF LETTERS REQUISITORIAL, JUDGMENTS, AND ARBITRAL AWARDS

Article 5

Judgments and arbitral awards rendered in civil and commercial matters in one of the signatory States shall have in the territory of the other signatories, the same force as in the country where they were pronounced provided that they comply with the following requirements:

(a)They must have been rendered by a tribunal competent in the international sphere;

(b)They must have a final character, or the authority of res judicata, in the State where they were rendered;

(c)The party against whom they were pronounced must have been legally summoned, and either represented or declared in default, in conformity with the law of the country in which the trial was held;

(d)They must not conflict with public order in the country of their enforcement.

Civil judgments rendered in any signatory State by an international tribunal, and relating to private persons or interests, are included under the provisions of this article.

Article 6

The documents indispensable in order to request enforcement of a judgment or arbitral award, are the following:

(a)A complete copy of the judgment or arbitral award;

(b)A copy of the documents necessary to show that paragraph (c) of the preceding article has been complied with;

(c)An authenticated copy of the order which declares that the judgment or award in question is final, or has the authority of res judicata, together with an authenticated copy of the laws upon which that order is based.

Article 7

The execution of the aforesaid judgments and arbitral awards, including the judgments of international tribunals mentioned in the last paragraph of Article 5, must be requested of the competent judges or tribunals, who, upon hearing the State's Attorney, and after receiving proof that those judgments or awards meet the requirements of the said article, shall order enforcement through the proper channels, in conformity with the corresponding provisions of the local law of procedure.

In any case, upon request of the State's Attorney, or even independently of such a request, the party against whom enforcement is sought for the judgment or arbitral award in question, may be heard, without taking any other measures of defence.

Article 8

The judge from whom the enforcement of a foreign sentence is requested, acting upon petition of one of the parties or even ex officio, without entering into additional proceedings, may take all the measures which are necessary to ensure the effectiveness of that sentence, conformably with the provisions of the law of the local tribunal regarding sequestrations, inhibitions, attachments or other preventive measures.

Article 9

When the case calls solely for the establishment of the fact that a given judgment or award has the authority of res judicata, such judgment or award should be offered in judicial proceedings, supported by the documents to which Article 6 refers, at the proper time and in accordance with the local law; and the judges or tribunals shall pass upon the merit thereof in the sentence which they pronounce, after ascertaining in a hearing of the State's Attorney that the requisites laid down in Article 5 have been met.

Article 10

Procedural acts of a non-contentious nature, such as inventories, the reading of wills, appraisals, and the like, which have been carried out in one State, shall have in the others the same force as if they had taken place in the territory of the latter, provided that they meet all of the requirements set forth in the preceding articles.

Article 11

Letters requisitorial and letters rogatory, which have as their object the issuance of notices, the taking of depositions, or the execution of any other judicial measure, shall be complied with in the signatory States, provided that the said letters meet the requirements laid down in this treaty. Likewise, such letters must be prepared in the language of the State which issues them, and must be accompanied by a duly certified translation in the language of the State to which they are addressed. Rogatory commissions in civil or criminal matters, transmitted through the diplomatic agents - or, in their absence, the consular agents - of the country which issues the letter, will not require legalization of signature.

Article 12

When the letter requisitorial or letter rogatory refers to attachments, appraisals, inventories or any preventive measure, the judge to whom it is addressed shall make the necessary provisions for the appointment of experts, appraisers, receivers, and in general, for everything conducive to the better discharge of the commission involved.

Article 13

Letters requisitorial or rogatory shall be acted upon according to the laws of the country which is asked to execute them. If they relate to attachment, the propriety of that measure shall be governed and determined by the laws and the judges of the place where the proceedings are held.

The process and form of attachment, and the exemption from attachment of the property designated with that end in view, shall be governed by the laws and ordered by the judges of the place where the said property is located.

In order to execute the judgment rendered in the proceedings in which it was ordered that property located in another territory be attached, the procedure indicated in Articles 7 and 8 of this treaty shall be followed.

Article 14

When attachment proceedings have been instituted, the person affected by this measure may allege before the judge to whom the letter requisitorial was addressed, the pertinent third-party claim, with the sole purpose of having that claim communicated to the judge of origin. When the latter has been notified of the interposition of the third-party claim, he shall suspend the principal proceedings for a term not to exceed sixty days so that the third-party claimant may assert his rights. The third-party claim shall be examined by the judge of the principal proceedings, in conformity with the laws of his locality. Any third-party claimant who appears before the court after the expiration of the sixty-day term must accept the existing status of the case.

If the third-party claim urged is based upon ownership or upon real rights over the property attached, it shall be passed upon by the judges in accordance with the laws of the country where the said property is located.

Article 15

Persons interested in the execution of letters requisitorial and letters rogatory may appoint agents, shall be responsible for expenses incurred in the exercise of the agents' powers or in the resultant proceedings.

TITLE IV - OF CIVIL MEETINGS OF CREDITORS

Article 16

Civil meetings of creditors are governed and conducted in accordance with the laws, and before the judges, of the country where the debtor has his domicile.

Article 17

In cases involving property located in one or more signatory States, other than property in the debtor's domicile, the creditors may institute independent proceedings in each of the said States.

Article 18

When the insolvency has been declared, and without prejudice to the right established in Article 17, each judge shall take the pertinent preventive steps with respect to the property located in other countries, and, in so doing, shall proceed according to the forms established for such cases in the preceding articles.

Article 19

When the preventive measures have been complied with, the judges to whom the letters requisitorial were addressed shall publish proclamations, throughout a thirty-day period, announcing the insolvency hearing, the appointment of the receiver and his domicile, the time-limit for submitting the evidence of claims, and the preventive measures which may have been taken.

Article 20

In the cases mentioned in Article 17, the local creditors, within a period of sixty days immediately after the last publication provided for in Article 19, may ask for insolvency proceedings against the debtor, with respect to property located in their own country. In these instances, just as in cases involving a single insolvency hearing which is held before the tribunals and according to the laws of the country of the debtor's domicile, the local creditors shall have preferential rights in regard to property located in the territory where their claims should be met.

Article 21

When several insolvency hearings are in order, any surplus which may be left over in favor of the debtor of one signatory State, shall be held to await the outcome of the other hearings, and shall preferably be handed over, through judicial channels, for the purposes of the hearing first announced.

Article 22

Liens are determined exclusively by the law of the State where each proceeding is opened, subject to the following limitations:

(a)The special lien on immovables and the real right of mortgage, shall be subject to the law of the State where the property is located;

(b)The special lien on moveables is subject to the law of the State where those moveables are located, without prejudice to the rights of the State in regard to taxes due.

The same rule prevails with respect to rights based on possession or tenancy of moveable property, or on public registry, or on any other form of publicity.

Article 23

The authority of the receivers, or of the legal representatives of the creditors, shall be recognized in all of the States; and these shall permit in their territory the exercise of the functions allowed the said receivers and representatives by the insolvency law and by the present treaty.

Article 24

Incapacity affecting the debtor shall be decreed by the judge of his domicile, according to the law thereof. Incapacity relative to property located in other countries may be declared by the local tribunals in accordance With their own laws.

The rehabilitation of the insolvent party and the effects thereof shall be governed by the same rules.

Article 25

The rules relative to insolvency proceedings shall likewise be applicable to the judicial liquidations, precautionary agreements, suspensions of payment and other analogous measures which may be provided for in the laws of the contracting States.

GENERAL PROVISIONS

Article 26

The simultaneous ratification of this treaty by all of the signatory States is not necessary in order to bring it into operation. The States which approve it shall communicate their approval to the Government of the Oriental Republic of Uruguay, so that the latter may notify the other contracting States to that effect. This procedure shall take the place of an exchange.

Article 27

When the exchange has been made in the form indicated by the preceding article, this treaty shall be effective from that time forth indefinitely, among the States which shall have complied with the said formality; and the treaty signed in Montevideo on the 11th day of January 1889, shall accordingly be without force.

Article 28

If any of the signatory States should deem it advisable to withdraw its adherence to the treaty or introduce changes into the said instrument, it shall so advise the other signatories; but the withdrawal shall not take effect until two years after the date of denunciation, during which time an effort to reach a new accord shall be made.

Article 29

Article 26 applies also to States which have not attended this Congress, but which wish to adhere to the present treaty.

In Witness Whereof, the plenipotentiaries of the aforesaid States sign the present treaty, in Montevideo, on the 19th day of March, 1940.

Reservations

1.By the Delegation of the United States of Brazil:

(a)As to Article 2 - The Delegation understands that the weighing of the proof must be governed by the lex fori.

(b)As to Article 5 - It understands that the provisions of Articles 776 and 778 of the Brazilian Code of Procedure are excepted from the effects of Article 5.

2.By the Delegation of the Argentine Republic:

(c)As to Article 11 - The Delegation understands that when a request for issuance of letters requisitorial is opposed, before the judge to whom the request is made, by pleas based upon pendency of action or upon incompetence of jurisdiction but which nevertheless attribute cognizance of the case to tribunals of the State to which the said judge belongs, the latter, in defense of his own jurisdiction, may refuse absolutely or in part to carry out the request.