Max Planck Society

Max Planck Institute for Comparative and International Private Law

Media Information
Online version Handwörterbuch des Europäischen Privatrechts



Project Leader:

Dr. Denise Wiedemann

 

 

 

History of the Latin America Unit

The Latin America Unit claims a long tradition. Originally a component of the Spain Unit, it was established as an independent division in 1971 by Jürgen Samtleben after his return from post-graduate studies at the Universidade de São Paulo. The development of the Unit was linked to a systematic development of the library holdings on Latin American law, a collection that continues to attract domestic and international scholars to the Institute, including scholars from Latin America. Samtleben dedicated his efforts primarily to a scientific examination of the private international law of Latin America, and he was deeply involved with the historic inception of the Mercosur. A selection of his most important research articles was published in a 2010 anthology.

In 2004, Jan Peter Schmidt succeeded Jürgen Samtleben as the head of the Unit. Schmidt’s efforts focused on the private law tradition of Latin American countries as well as the influence of preceding European models. His 2009 dissertation on civil law codification in Brazil was an in-depth examination of the across-the-board 2002 reform of the Brazil Civil Code; his work represents the first comprehensive German-language study of the topic. From 2011 forward Schmidt authored a number of different studies on succession law, family law and contract law in Latin American countries.

From 2012 to 2014, Tilman Quarch led the Latin America Unit. Focal points of his research included Brazilian patent law and investment protection law; additionally, he participated in the updating (from a comparative law perspective) of the primary work of Brazilian jurist Pontes de Miranda.

After a transitional phase overseen by Anton Geier in 2015/2016, the Latin America Unit has since 2017 been in the hands of Denise Wiedemann.

Civil Law in Latin America

Although it is difficult to reduce a culturally and socio-economically diverse region such as Latin America to a single common denominator, certain commonalities nevertheless exist so as to allow a meaningful academic treatment of all Latin American countries. In addition to the shared Iberian heritage in respect of language and culture, this includes above all the legal roots shared by today’s Latin American jurisdictions.
 
Whereas the colonial legislation in Brazil and in the Spanish viceroyalties was to a great extent a homogenous derivative of the legislation in place in the principal Iberian cities, the New World countries quickly chose their own paths upon attaining independence. Carried by the pervasive 19th-century notion of codification, exceptional jurists such as Bello in Chile, Vélez Sarsfield in Argentinia and Teixeira de Freitas and Bevilaqua in Brazil drafted comprehensive and technically advanced civil codes. While the corresponding Códigos linked themselves on the one hand to their Iberian legacy, they were at the same time highly influenced by the contemporary European models, these including especially the French Code civil but also the work of German Pandekten scholars. Of particular significance, furthermore, were the early regional attempts at harmonisation, which later continued in regional groupings such as the Andean Community and the Mercosur.
 

The significance of comparative law in the Latin American realm is demonstrated by the fact that – much like the first Latin American civil codes – the civil law revisions undertaken or planned in recent years (especially in Brazil and Argentina) are the products of a substantial comparative consideration of European civil codes. While the influence of the European legal systems is also reflected in the area of civil procedure, the growing influence of (primarily North American) common law is prominent in the areas of commercial law, company law and securities law. Fields such as competition law are by and large US legal transplants, whose practical legal implementation, however, has thus far varied considerably from what is set down in the statutory text. This, in turn, highlights the need to pay special attention to practical legal realities in researching Latin American law. 

The Law of the Mercosur

The Institute project on the Economic Law of Mercosur (“Wirtschaftsrecht des MERCOSUR”) under the leadership of Prof. Dr. Basedow and Dr. Samtleben began in April 1999 after lengthy preparations. It received support from the Volkswagen Foundation for staff and material costs. This research project focused primarily on competition law, commercial arbitration, provisional remedies and transport law. After the successful conclusion of the group established as part of this project (Work from the Mercosur Project [German page]), the topic remained a subject of research at the Institute and was pursued within the Latin America Unit (see the List of Publications).

The Common Market of the South (in Spanish "Mercado Común del Sur", in Portuguese "Mercado Comun do Sul", hence the acronyms Mercosur and Mercosul) is a South American association for fostering integration, which was initiated by Argentina, Brazil, Paraguay and Uruguay in 1991 through the Treaty of Asunción, and has since undergone a gradual institutional evolution. Legal harmonisation has taken place in areas including some parts of international private law and civil procedure.

Following a promising initial phase in which both trade within the region and foreign investment increased dramatically, the integration process has been stalled out since the start of the twenty-first century. The eponymous “Common Market” remains no more than a programme, and even the customs union has yet to be completed. Political tensions among the member states have also plunged Mercosur into multiple existential crises, as for example when Venezuela was admitted as a fifth full member without Paraguay’s approval (this membership was in turn suspended at the end of 2016 for alleged treaty violations).

Mercosur has been negotiating an interregional association agreement with the European Union since 1999, but despite repeated pronouncements that an agreement is imminent, these negotiations have yet to be concluded.