- Civil Chamber of the Venezuelan Supreme Court
- Sabja del Valle Asmad Rivero vs. Doña Ramona C.A. and Ronny Manuel Quevedo
BILL OF EXCHANGE - SIGNED BY VENEZUELAN INDIVIDUALS IN CURAÇAO – APPLICABLE LAW IN THE ABSENCE OF A CHOICE OF THE PARTIES – REFERENCE TO LEX MERCATORIA CONTAINED IN THE NATIONAL PRIVATE INTERNATIONAL LAW - APPLICATION OF THE UNIDROIT PRINCIPLES AS AN EXPRESSION OF THE LEX MERCATORIA
LAW APPLICABLE TO A BILL OF EXCHANGE - MONETARY OBLIGATION FOR WHICH THE PARTIES DID NOT CHOOSE THE APPLICABLE LAW - OBLIGATION SUBJECT TO THE LAW OF THE PLACE OF PERFORMANCE - OBLIGEE’S PLACE OF BUSINESS” AS THE PLACE OF PERFORMANCE (ART. 6.1.6[a] UNIDROIT PRINCIPLES).
The dispute concerns a bill of exchange issued in Curaçao (Netherlands Antilles) between Venezuelan citizens domiciled in Venezuela.
The Supreme Court denied the possibility of applying by analogy the Inter-American Convention on conflict of laws regarding bills of exchange, promissory notes and invoices because Curaçao has not ratified it. Instead, the Court proceeded, as if the bill of exchange was a contract, to determine the law applicable in the lack of choice by the parties, according to Articles 30 and 31 of the Private International Law Act, which reproduce the solutions accepted by the Inter-American Convention on the Law Applicable to International Contracts.
According to the Supreme Court, in case of dispute over the law applicable to a contract or obligation of international origin, when the parties do not choose it or when their choice is ineffective, the judge shall apply, “where appropriate”, the lex mercatoria, which includes usages, customs and commercial practices of general international acceptance.
Such reasoning led the Court to consider the UNIDROIT Principles, which were applied based on the so-called negative choice, envisaged by the Preamble of the Principles. Thus, the Court affirmed that, in case of monetary obligation for which the parties did not choose the applicable law, the obligation must be subject to the law of the place of performance, characterized as the place where is “the obligee’s place of business” (art. 6.1.6[a] UNIDROIT Principles).
The Court concluded that, "considering the objective and subjective elements that are directly linked to the bill of exchange, as well as the general principles of international commercial law accepted by international organizations and the usages of international trade, known as lex mercatoria, according to Articles 30 and 31 of the Act on Private International Law, the law applicable to the performance of the bill of exchange shall be the law of the place of performance, that is Venezuelan Law, given that the parties are Venezuelans, their domicile is in the Bolivarian Republic of Venezuela and the commercial instrument, although signed in Curaçao, is intended to be enforceable in the Bolivarian Republic of Venezuela”.
[abstract kindly provided by Prof. José Antonio Moreno Rodriguez]