Argentina: The Changing Character of Foreign Law in Argentinian Legal System
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Application of foreign law has been controversial in Argentina because of the existence of a rule in the Article 13 of the 1869 Civil Code that qualified foreign law as a fact. However, both scholars and courts used some theories to justify the ex officio application of foreign law. Such theories were useless when the conflict rule was contained in a treaty because in those cases the second paragraph of the same Article expressly provided for the ex officio application of foreign law, unless otherwise ordered by the treaty. Furthermore, essential treaties in force in Argentina have established the principle of the ex officio application of foreign law, either explicitly (1889 and 1940 Montevideo Treaties) or implicitly (1979 Inter-American Convention on General Rules of Private International Law, Article 2). In addition, the erga omnes character of the latter provoked the repeal of the Article 13 of the Code Civil. Ultimately, the 2014 Civil and Commercial Code seems to follow the same principle of the Montevideo Convention on the matter (Article 2595) although, in any event, the Inter-American Convention shall prevail, not only because of its character but also due to the constitutional principle of primacy of international law.