Document Type

Article

Disciplines

International Law

Abstract

Countries in the three Americas-North, Central and South have traditionally been either civil or common law jurisdictions. The Cuban revolution first, and more recently the Nicaraguan revolution, introduced changes in these countries that call into question their original classification as civil law nations. This article aims to determine whether Cuba and Nicaragua are still part of the Latin American legal family, or whether they now belong to the family of nations that follow principles of socialist law. The following analysis is limited to the area of foreign trade.

As an incidental goal, this paper also strives to explore some links between Eastern European and Latin American legal systems. American legal writing has remained almost silent concerning this interrelation.' Finally, the article generally endeavors to contribute to the present debate over United States-Nicaraguan relations, mainly by providing some information not readily available elsewhere about the Soviet impact on the Nicaraguan system.

The nature of socialist foreign trade law is an area that has not been widely studied;3 however, a systematic analysis of countries in the Soviet bloc and of their legal institutions reveals a consistent pattern. Focusing on the foreign trade area, the recurrence of eight typical traits becomes noticeable in every one of these nations. These characteristic traits are:

1) Foreign trade as a state monopoly;

2) Role of state corporations;

3) Specific arbitration tribunals for international commercial disputes;

4) Planned economy;

5) Bankruptcy practically unknown;

6) Inconvertible currency;

7) Strict ultra vires theory;

8) Economic integration (COMECON).

These characteristics comprise the commercial expression at an international level of any communist political system. They also apply to communist countries outside the Soviet sphere of influence as, for instance, the People's Republic of China. Perhaps the only exception to such a generalized applicability is the last trait, economic integration (COMECON).7 In the final analysis, the source and the common denominator of the above traits is the concentration of power typical of communist systems.

The design of this article is simple. Basically it consists of assessing the applicability of the eight typical traits in two socialist countries, the USSR and Poland, and in two Latin American nations, Brazil and Argentina. Then the same eight traits are applied to Cuba and Nicaragua in order to determine whether these two jurisdictions come closer to their Latin American neighbors or to their Eastern European friends. In the discussion of socialist law, an effort is made to report on the latest changes made in modernizing the Soviet economy associated with Mr. Gorbachev's policy of glasnost or openness.

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