Hague Conference on PIL
by Jörg Pirrung
1. Subject and purpose of the Conference
The purpose of the Hague Conference on private international law (PIL) is to achieve the progressive unification of the rules of PIL (Art 1 of its Statute of 31 October 1951). It does so primarily by drafting, within the framework of its diplomatic conferences, international conventions on PIL, including international civil procedure. Participants of the first session of September 1893 were Austria-Hungary, Belgium, Denmark, France, Germany, Italy, Luxembourg, the Netherlands, Portugal, Romania, Russia, Switzerland and Spain. In 1894, Sweden and Norway joined and in 1904, Japan became the first non-European state to participate in the negotiations. Through the initiative of the Netherlands, the Conference aimed to function on the premise of realizing peace through law. During the last two decades, the Conference’s membership has doubled. Today, the Conference has 71 member states from all over the world and, recently, the European Union joined as well.
Two other institutions work on the worldwide unification of private law: UNIDROIT and UNCITRAL—the former focusing on matters of substantial law rather than PIL, the latter on international commercial law. From time to time, the Council of Europe, a regionally limited organization, places on its agenda subject matter that overlaps with Hague Conference initiatives, eg the Convention of 20 May 1980 on recognition and enforcement of custody decisions, or subject matter that follows Conference initiatives on parallel matters like the Conventions of 24 November 1977 on the service abroad of documents relating to administrative matters and of 15 March 1978 on obtaining information and evidence in such matters. The Conference collaborates with these institutions to further, among other aims, the idea of avoiding duplicate initiatives.
Relations between the Conference and the EU are more complicated. According to Art 67(4) TFEU/61(c) EC, the Union shall develop judicial cooperation in civil matters; pursuant to Art 81(2)(c) TFEU/65(b) EC, this extends to PIL. Thus, the potential working spheres of the Conference and the EU are at least partially identical in subject matter. They only differ with regard to the regional limitations of the EU compared to the worldwide scope of the Conference. Additionally, all 27 Member States of the EU are, individually, members of the Conference and the EU itself has been a member since 2007. This endangers the independence of the Conference, especially in light of the fact that important non-European member states have ratified relatively few conventions. (United States (5), Canada (4), Australia (11), South Africa (5), Russia (4), Japan (6), China (3), India (4), Mexico (6), Argentina (7) and Brazil (2)).
Regarding its form, the Conference became a permanent institution with a Permanent Bureau after its Statute entered into force in 1955. Before that date, through the initiative of the Netherlands, diplomatic conferences were convened only on specific occasions, each time addressing various subjects, namely in 1893, 1894, 1900, 1904, 1925 and 1928.
Since 1956, ordinary sessions of the Conference took place every four years from 1956 up to 1988. The pattern was broken in 1993 to celebrate the Convention’s centenary and since then, sessions have taken place in 1996, 2002, 2005 and 2007. Special sessions were called in 1966, 1985 and 1999. The Permanent Bureau in The Hague consists of a Secretary General and five (previously two) secretaries appointed by the Netherlands government. Previous Secretaries General were Matthijs H van Hoogstraten from the Netherlands (1948–78) and Georges AL Droz from France (1978–93). Since 1996, JHA (Hans) van Loon from the Netherlands has held the position. Before 2006, the Netherlands State Commission, instituted in 1897, was responsible for the functioning of the Conference with the help of the Permanent Bureau. Under the present text of the Statute (Art 4(1), (2)), the Council on general affairs and policy, composed of all member states, is charged with the operation of the Conference. This Council, in principle, meets annually, where it examines all proposals for future items to be placed on the agenda of the Conference. The Council ensures the operation of the Conference through the Permanent Bureau, whose activities it directs.
3. Main focus of the Conference
Before 1951, the conventions prepared by the Conference dealt mainly with the application of the law of the nationality of the persons concerned. Examples include the Conventions of 12 June 1902 on PIL of marriage, divorce and guardianship of minors and of 17 July 1905 on the effects of marriage and on incapacitation. Today, these conventions are, in practice, of very little importance as they no longer conform with the actual principles applied in national PIL rules, are in force in very few, if any, contracting states and have been denounced by many others. Since 1951, the work of the Conference can essentially be classified into three main areas of PIL: (a) cross-border legal assistance and recognition of foreign judgments; (b) international family and succession law; and (c) international law of obligations, especially trade law. Up to 1970, the Conference focused mainly on the first area, afterwards the international protection of children became increasingly important.
a) Legal assistance and international procedural law in general
The Convention on civil procedure of 1 March 1954, with 47 contracting states, among them 21 EU states, was established on antecedents of the Conventions of 14 November 1896 and 17 July 1905. It facilitates the service of documents and taking of evidence abroad on the basis of requests for legal assistance. It also furthers access to the courts by removing the requirement of depositing security for costs and by ensuring equal treatment as to access to free legal aid. This convention has been continuously revised since 1954. There are other conventions affecting procedural issues including the Convention on service abroad of 15 November 1965, which has 64 contracting states, among them 25 EU states; the Convention on the taking of evidence abroad, 54 states (25 EU states); and the Convention on international access to justice, 25 states (17 EU states, but not Germany). These conventions have achieved substantial progress regarding the effectiveness and harmonization of international legal aid. They ensure effective service abroad of documents via central authorities in each contracting state and take account of the special common law requirements for the taking of evidence, eg by permitting commissioners to take evidence in foreign countries. The Convention on access further ameliorates the dispositions on legal aid where litigation involves more than one state. The most successful Convention of the Conference, with 101 contracting states, among them all EU states, is that of 5 October 1961, which abolished the requirement that public documents used in foreign countries be authenticated in the foreign country. Rather, the convention introduced the so-called apostille, which need only be placed on the document by authorities of the state of origin.
In contrast to the success of the above-mentioned conventions, the (draft) Conventions on the jurisdiction of the selected forum in the case of international sales of goods of 15 April 1958 and on the choice of court of 25 November 1965 were not ratified by a single state. The Convention on recognition and enforcement of foreign judgments and its supplementary protocol of 1 February 1971 were no great success either, as they were only ratified by four member states, with one accession (Kuwait). Similarly, although it experienced ambitious preliminary negotiations initiated by the United States, the Convention on choice of court agreements of 30 June 2005 (choice of court agreements) has proved to be a similarly limited and relatively unpromising effort to achieve worldwide improvement and harmonization in this field: to date the convention has been fully ratified by only one state (Mexico); although it has been signed by the United States (19 January 2009) and the EU (1 April 2009).
b) Family and succession law
In the area of international family (family law (international)) and succession law (succession law (international)), the greatest achievements of the Conference have been in the context of international protection of children. The Convention of 24 October 1956 (14 contracting states, 9 from the EU) governs child support with the primary connecting factor for choice of law being the habitual residence of the child. Even more successful is the Convention of 15 April 1958 concerning the recognition and enforcement of decisions relating to maintenance obligations towards children, with ratification by 20 states (14 EU states). These conventions have been modernized by two more recent conventions. First, the Conventions of 2 October 1973 expanded the PIL principles to apply also to the maintenance of adults (14 ratifications (11 EU states)), and the recognition and enforcement of judgments (23 ratifications (17 EU states)). On 23 November 2007, a Convention on international recovery of maintenance was adopted and has already been signed by the United States, the EU and the Ukraine and ratified by Norway.
According to the Convention of 5 October 1961 concerning the protection of minors, with 14 contracting states (11 EU states), jurisdiction for custody claims lies in the courts of the state of the child’s habitual residence. These courts generally apply their own law, out of practical concern. The convention does however permit the application of the child’s national law in many situations, especially regarding the attribution of parental custody by operation of law. The convention seeks to improve cooperation between the authorities in the contracting states by establishing obligations of communication which, in practice, were not being sufficiently respected. It also only requires states to recognize custody decisions, leaving the actual execution of the decisions to national law. These deficiencies were corrected by the Protection of Children Convention of 19 October 1996, which reforms the 1961 Convention to provide for the application of the law of the state of the child’s habitual residence and to improve cooperation between contracting states by introducing central authorities. The number of contracting states (32, (21 EU states)) will probably increase in the next few years when five further EU states, on the basis of a decision in the framework of judicial cooperation (ie without Denmark), will ratify the convention. The Convention of 13 January 2000 on the protection of adults, in force since 1 January 2009 and ratified by the United Kingdom, Germany, France, Estonia, Finland and Switzerland, extends the principles of the 1996 Convention to the care of adults.
The Protection of Children Convention contains, among others, rules on cross-border visitation and child abduction by parents, the subject matter of the Child Abduction Convention of 25 October 1980. The latter convention, currently with 85 contracting states, including all EU states, has in the last decades become a worldwide success, which, in the beginning, could not have been expected. The convention, following principles of international legal assistance, ensures, by the operation of central authorities, the immediate return of children taken in violation of parental custody rights, both those that exist by operation of law or on the basis of judicial decisions. Ratified by 83 states (27 EU states) in an even shorter period of time, the Inter-country Adoption Convention of 29 May 1993 also applies principles of international legal assistance by establishing cooperating central authorities for the realization of cross-border adoptions. The earlier Convention of 25 November 1965 on conflicts of laws regarding adoption had been ratified by only very few states and has since been denounced by all of them.
The Convention on the recognition of divorce decisions of 1 June 1970 has been ratified by 18 states, among them 13 EU states. In contrast, two Conventions of 14 March 1978 on the recognition of marriages and on conflicts of laws concerning matrimonial property rights have not been very successful, each ratified by only three states.
The Convention of 5 October 1961 on the conflicts of laws relating to the form of testamentary dispositions, ratified by 40 states (16 EU states), applies the principle of favor testamenti by accepting multiple connecting factors. The PIL Succession Convention of 1 August 1989 follows the tendency of permitting a professio juris by the de cujus; in the absence of such designation, succession is governed by the law of the state of the habitual residence of the deceased, provided he had lived there for at least five years before dying. This convention has not yet entered into force. The Convention of 2 October 1973 on international administration of estates has only been ratified by three states, while the Convention of 1 July 1985 on PIL and recognition of trusts has 12 (5 EU states) contracting states, notably many common law states (United Kingdom, Australia, Canada, Hong Kong) and states involved in Treuhand (Switzerland, Liechtenstein, Luxembourg), but also the Netherlands, Italy and Malta.
c) Law of property
In the area of conflicts of laws concerning obligations, property and negotiable instruments, only the Conventions of 4 May 1971 on traffic accidents (20 ratifications, 12 EU states) and of 2 October 1973 on product liability (11 ratifications, 6 EU states) (non-contractual obligations (PIL)) have seen success. Traffic accidents are governed by the law of the state where the accident occurred or, under certain conditions, where the vehicle is registered. Regarding product liability, in principle the law of the state of the place of injury is applied, but in certain instances the law of the habitual residence of the injured person is applicable and under certain conditions, that of the place of business of the manufacturer or the place where the product was purchased. The Convention of 15 June 1955 on PIL concerning international sales of goods with 8 contracting states (5 EU states) was followed by a corresponding Convention of 22 December 1986, which has not yet entered into force. The Convention of 5 July 2006 on certain rights related to securities held with an intermediary, which was ratified first on 14 September 2009 by Switzerland, determines the law to be applied (choice of law by the parties) to dispositions regarding specified securities. Generally, the law expressly agreed to by the parties will be applied if the intermediary has an office in that state. Complete failures were the two Conventions of 15 April 1958 on the law governing transfer of title and on jurisdiction of the chosen forum in international sales of goods. The same goes for two others of 15 June 1955 on conflicts between the laws of nationality and domicile and of 1 June 1956 on the recognition of foreign companies and associations. Similarly, the Convention of 14 March 1978 on the law governing agency has only been ratified by 4 states (3 EU states). Admittedly though, when evaluating the success of Hague conventions, especially with respect to applicable law, one must take into account that the solutions, or at least the principles, of many Hague conventions have been adopted through regional or national law equivalents without formal ratification of the conventions themselves.
The dispute between adherents to the nationality principle and those in favour of the application of the law of the habitual residence of the persons concerned has been decided—within the framework of the Conference—essentially in favour of the latter connecting factor (habitual residence), this factor having especially proved its advantages in addressing questions other than those concerning status matters, where actual or urgent needs have to be met. However, it becomes clearer and clearer that conventions with rules on applicable law only have a real chance of success where parallel instruments (or, preferably, the instruments themselves) also provide rules on international jurisdiction, recognition and enforcement of judgments and/or international cooperation by central authorities for the same subject matter.
This corresponds to what experience has shown: in the framework of the Conference, working sessions on mutual information and on the practical operation of conventions have become increasingly important since about 1975. Beginning with the reform Conventions of 1965 and 1970 on legal assistance, and most importantly, with the subject of international child abduction, such meetings of responsible authorities and practitioners have facilitated the evaluation of conventions by states interested in ratification and contributed to cooperation where there were once conflicts between courts of different contracting states. The reports of such special commissions are of great practical value, eg the report on the work of the Commission on the Child Abduction and Child Protection Conventions in 2006, which contains many valuable preparatory documents.
Today, the pivotal question is how the relationship between the Conference and the EU will develop in the future. The EU regulations on judicial cooperation often have as their source the previous achievements of the Conference, eg those on the service of documents (Reg 1348/ 2000, since repealed by Reg 1393/2007), the taking of evidence (Reg 1206/2001) and jurisdiction in divorce and custody matters (Brussels IIbis, Reg 2201/2003), as well as Directive 2002/8 on access to justice (European civil procedure). One will have to wait for future developments to see whether the EU will leave the Conference room for manoeuvre. As of yet, the repercussions of the membership, since 2007, of the Union itself in the Conference cannot be assessed in detail, especially from the point of view of the non-European member states. At present, however, both the EU and the Hague Conference share a positive outlook for the future.
5. Plans for the future
During the sessions on general affairs and policy in April 2007, 2008, 2009 and 2010, the Council of the Conference has confirmed certain subjects which, already for some time, have been on the agenda of the Conference. These include questions on international civil procedure regarding inheritance and non-married couples, as well as questions on PIL raised by the international information society. The sessions regarding important conventions will continue. New subjects being discussed, as of yet without priority, include treatment of foreign law, certain aspects of labour migration and a Protocol to the Child Abduction Convention.
Alfred E von Overbeck, ‘La contribution de la Conférence de La Haye au développement du droit international privé’ in Recueil des Cours II (1992) 9; Antonio Boggiano, ‘The Contribution of the Hague Conference to the Development of Private International Law in South America’ in Recueil des Cours II (1992) 99; David McClean, ‘The Contribution of the Hague Conference to the Development of Private International Law in Common Law Countries’ in Recueil des Cours II (1992) 267; Gerfried Fischer and others, ‘Hundert Jahre Haager Konferenz 1893–1993’ (with contributions from Gerfried Fischer 1, Eugen Dietrich Graue 26, Christian von Bar 63, Jörg Pirrung 124, Ole Lando 155, Werner Lorenz 175, Jan Kropholler 207, Haimo Schack 224, Dagmar Coester-Waltjen 263) (1993) 57 RabelsZ 1–302; TMC Asser Instituut, The Influence of the Hague Conference on Private International Law (M Nijhoff 1993); ThM de Boer and others, ‘The Hague Conference on Private International Law 1883–1993’ (with contributions from ThM de Boer 1, JG Castel 15, Hélène Gaudemet-Tallon 31, M Jänterä-Jareborg 49, David McClean 65, Rui Manuel Moura Ramos 79, Alfred E von Overbeck 93, M Pryles 107, Fernand Schockweiler 115, Kurt Siehr 29) (1993) 40 Netherlands International Law Review 1; Paul D Carrington and Adair Dyer Jr (eds) ‘The Hague Conference on Private International Law’ (1994) 57 Law and Contemporary Problems 1–331; Hans van Loon and Andrea Schulz, ‘The European Community and the Hague Conference on Private International Law’ in B Martenczuk and S van Thiel (eds), Justice, Liberty, Security: New Challenges for EU External Relations (BUP, Brussels 2008) 257; Hague Conference on Private International Law, Proceedings of the (19th) session, vol I (2008), vol II (2006); Hague Conference on Private International Law, Annual Report 2010 (2011); Documentation with regard to all conventions can be found at <www.hcch.net>.