Member of the Institute of International Law; Professor of Private International Law, University of Coimbra; Judge of Court of First Instance of the European Communities.
On December 20, 1999 the transfer of administration over the territory of Macau took place between Portugal and the People's Republic of China, this latter state resuming the exercise of sovereignty over all its mainland. It was a final act of a process1 that had been announced a little more than twelve and one-half years before, when, on March 26, 1987, the two countries signed the Sino-Portuguese Joint Declaration on the Question of Macau.2
According to this treaty,3 the Special Administrative Region of Macau was to enjoy a high degree of autonomy, being vested with executive, legislative, and independent judicial power. It has also been granted that the laws in force in the territory at the time of its conclusion are to remain basically unchanged.
With the purpose of adjusting the previous legal system to the needs of the transitional process, the Civil Code in force in Macau4 was reformed with the aim mainly of adapting its text to the political and legal context of the territory. This exercise, which implied the replacement of the Portuguese background by one peculiar to Macau and the adjustment of the previous provisions that would be out of touch with reality was concluded a little more than four months before the transfer of administration, and the Civil Code of 1999, approved by Decree-Law n.E 39/99/M, of August 3, came into force on November 1, 1999.5
These developments involved the repeal of the previous private international law rules, contained in Articles 14 to 65 of the Portuguese Civil Code of 1966, and the entering into force of a new set of provisions, now included in Chapter III (Rights of non-residents and conflicts of laws) of Title I (Interpretation and Page 1282 application of laws) of Book I (General Part), Articles 13 to 62 of the 1999 Macau Civil Code.6
The purpose of this essay is to comment on the main options of this new private international law codification. Taking into account that it represents an evolution and an adaptation of the Portuguese 1966 conflict of laws codification,7we will mainly point out the similarities and differences between these two legal systems. When justified, we will, besides, compare the new solutions with the ones enacted by those private international law codifications in which preparation the distinguished scholar to whom this issue of the Louisiana Law Review is dedicated played a decisive role-the 1991 Louisiana Acts No. 923, effective January 1, 1992, and Puerto Rican (Projet of March 1, 1991) codes.
Since the 1999 Civil Code follows very closely the Portuguese and continental tradition on this matter, we will deal separately with the general provisions (Articles 13 to 23) (I) and the specific conflict of laws rules (Articles 24 to 62) (II).
The first provision of the chapter does not address a conflict of laws issue, but concerns, on the model of the Portuguese Code, the law of aliens. It is provided that private law rights of non-residents in Macau are to be put on the same footing as Macau inhabitants, in the absence of a legal provision to the opposite effect (Article 13).
The essential feature of the rule is that, although dealing with aliens, it does not address itself to foreigners (people having not the same nationality of the one of the citizens of one state) but to non-residents. This is a consequence of the fact that the Macau legal system, even if an autonomous one, is in a certain way part of a complex legal order with a territorial basis. The entity where that system is in force (Macau) does not constitute a state in the realm of public international law, but only a territorial unit of the People's Republic of China (which is itself a state within the meaning of the Law Page 1283 of Nations). In these circumstances, the link that can delimit the circle of persons to which the legal rights provided by the autonomous Macau legal system are in principle granted is residence,8 not nationality (which does not exist as such in relation to Macau). Such a conclusion implies that what is therefore necessary to define is the legal status of non-residents, and not that of non-nationals. 9
Although the matter is dealt with in a very particular way, the legal answer provided for the rule is, on the contrary, a very well-known one: the principle of equality (between residents and non-residents, now), subject only to the legal exceptions that can be put forward by the legislator We would underline here only that the new provision diverges from the Portuguese one when it does not mention the reciprocity principle10 as a ground for denying rights to aliens.
The provisions concerning the general problems of the conflict of laws system follow essentially the pattern of the Portuguese Civil Code of 1966 It is primarily what happens with characterisation and fraus legis, where Articles 14 and 19 of the new Code limit themselves to the reproduction of Articles 1511 and 21 of Portuguese Civil Code.
The same happens also with public policy (ordre public), interpretation and assessment of the contents of foreign laws and with acts taking place on board of ships and aircraft, at sea or in flight. The solutions of the Page 1284 Portuguese Civil Code contained respectively in Articles 22,12 23 and 24 are maintained. The new rules just replace the expression "foreign law" in Articles 20 (public policy) and 22 (interpretation and assessment of foreign applicable law) by "law outside Macau,"13 and the reference to the law of Macau (the lex fori) as the last solution as a result of the application of a public policy exception that takes the place of Portuguese law. With respect to acts taking place on board at sea and in flight, where the territorial law is the law of registration, Article 23(2) of the new Code provides that military ships and aircraft are considered as a part of the territory of the State or of the territorial unit to which they belong rather than only to the State, as happens in Article 24 of the Portuguese Code.14
With respect to renvoi, the main criteria of the Portuguese codification are also maintained. Reference by a conflict of laws rule to any law outside Macau15 is normally seen as a reference simply to the domestic law16 of such a system (Article 15(1), as is the case in Portuguese Code).17 The Macau Code also kept the goal of achieving international uniformity that had led the Portuguese system to accept renvoi to a law of another system, when such a law is considered applicable18 or back to the substantive law of the forum, when the conflict of laws system of the law chosen by the forum rules refer to the domestic rules of such a law.19 However, the new codification does not follow the Portuguese system in the subtleties that this law has adopted in matters of personal status, with the intent of giving equal footing insofar as the law of nationality and the law of habitual residence are concerned.20 Such an issue does not arise in the context of the Macau Code in view of the exclusion of the law of nationality in personal matters and the exclusive reference in this respect to the law of habitual residence.21 Finally, the path adopted by Portuguese system concerning the influence of favor negotii principle in renvoi matters and the exclusion of this mechanism when parties' free choice is the relevant connecting factor is also followed.22
With respect to non-unified legal systems,23 the approach has some similarities too, even if some differences can be underlined. The main one is the omission (in Macau Code, Article 18) of one of the situations with which Article 20 of Portuguese Code deals: choice of nationality as a connecting factor. 24 The rule in general adopted (for interterritorial and interlocal conflicts) in the Macau Code is the one that was also retained in the Portuguese Code for interpersonal conflicts and which refers to the criteria used by the applicable law to the same purpose, adding nevertheless that when such criteria are missing, the law most strongly connected with the situation is to apply.25 Such an option, totally ignored by the Portuguese Code in its first version, has been received later in this system but only with a limited effect.26 In accordance with a general trend27 the Macau Code makes greater use of this clause.28
From a formal point of view the major difference between the two systems in the framework of the general part of private international law is the provision contained in Article 21 of Macau Code concerning mandatory rules (in the sense of lois de police, rules that because of their nature and purpose must be applied whatever the law applicable to a certain relationship). Like certain other legal systems29 the Code provides that rules of Macau law that in view of their specific object and scope must mandatorily be applied prevail over the provisions of the outside law designated under the forum conflict rules. But such an approach, even if not present in the Portuguese codification, has long been adopted by Portuguese scholars30 and has been recently inserted in some specific legislative acts.31
Under the scheme of the Macau Code, the specific choice of law rules appear in seven subsections that deal respectively with personal law (Articles 24-33), law regulating legal acts (Articles 34-39), obligations (Articles 40-44), real rights (Articles 45-47)...