Edited by Thomas John, Rishi Gulati and Ben Koehler
This Chapter traces the evolution of the HCCH that began in 1893 when the efforts of Tobias Michael Carel Asser led to the first Hague Conference on the regulation of a number of questions of private international law. The Chapter also details the history of the Netherlands Standing Government Committee on Private International Law and how it impacted the HCCH, the oldest international organisation in the Hague. It demonstrates the close relationship between the Netherlands and the HCCH by virtue of how that organisation has evolved. The role of the Netherlands and the Netherlands Standing Government Committee on Private International Law has of course changed over the years. While in its first 80 years of existence, the Standing Committee played a substantive role, nowadays, it performs a more modest, facilitating function. What has not changed is the Standing Committee’s firm commitment to the unification of private international law for the benefit of all of the world’s citizens.
Guido den Dekker
This Chapter considers the institutional arrangements of the HCCH. The focus is on the rules that ensure the independence of the HCCH as a public international organisation which has been granted immunities through specific arrangements. Like other international organisations, the HCCH enjoys functional immunity in its host State the Netherlands, the origins of which can be found both in treaty law and in customary international law. The case law of Dutch courts shows that in order for immunity from jurisdiction to be upheld, it is important that alternative remedies are in fact available to a relevant claimant within international organisations. Dutch national courts do not shy away from assessing the overall ‘quality’ of such remedies that are in place at the international level. This Chapter challenges the popular view that immunity of jurisdiction is conditional on access to court. The author argues that national courts do not have the power to intrude into international organisations’ immunity.
Within the international law community, the HCCH, UNIDROIT and UNCITRAL are often affectionately referred to as the ‘three sisters’ of private international law, due to their preeminent position as international organisations involved in the harmonisation of law. The author suggests that this endearing referential term is clever, not only in emphasising the strong linkages between the three organisations, but also in perfectly capturing their complex relationship, much like the relationship between siblings in a family. The purpose of this Chapter is to explore the relationship between the three sisters and evaluate how it could be further strengthened. It first provides a comparative analysis of the mission, structure and working methodology of each of the three organisations to identify each institution’s relative strengths. In light of the differences between the sisters identified, the Chapter moves on to discuss their relationship with each other. Finally, it considers the existing cooperative arrangements between the three organisations and proposes additional initiatives that could strengthen their cooperation. The author makes the case that harmonisation of private international law and transnational commercial law is best served by all three organisations playing to their comparative strengths in fulfilling their statutory missions.
As a body that generates unifying norms of private international law, whose main objective is to solve certain legal conflicts various actors may experience in transnational situations, the HCCH builds bridges between different legal cultures. Of the 84 Member States, 12 are Latin American States and 1 State is in the Caribbean. At the regional level, the Latin American and the Caribbean region has played for the HCCH a key role in the implementation and practical operation of its instruments, with the work of the HCCH’s Regional Office for Latin America and the Caribbean (ROLAC) of ever-increasing significance. This Chapter considers the current work of the HCCH in the Latin American and the Caribbean context through the Conventions the States in the region are subscribed to. It also analyses future prospects. The author argues that the legislative function of the Organisation is complemented by post-convention services, comprising for example advice to governments, accompanying them in the implementation of international instruments, as well as the facilitation of international cooperation among networks of authorities. In addition, the HCCH has undoubtedly given legal certainty and justice for the resolution of cases that cross legal systems within the Latin American and Caribbean region.
Richard Frimpong Oppong and Pontian N. Okoli
This Chapter considers how the HCCH can become a truly global organisation through an examination of factors that impede its growth, focusing specifically on Africa, a priority region for the HCCH. The authors suggest that there is a need to consider what the HCCH set out to achieve; if the aims have remained consistent; and how the means of attaining such aims can be improved. These considerations are underpinned by representation and participation vis-à-vis themes concerning the family (e.g. protection of children) and international litigation generally (e.g. the recognition and enforcement of foreign judgments). Special attention is given to the involvement of African States with a view to ensuring the HCCH becomes a truly international organisation. The Chapter considers trends, jurisdictional differences, regional approaches, and relevant transaction cost. The authors note that there has been much progress since the HCCH was established: membership has increased, and more countries sign conventions. However, the participation of African States in negotiating processes remains limited. The Chapter concludes that inclusive participation is critical to sustainable growth and to ensure the HCCH becomes a truly global organisation.
This Chapter points out that in the last decade, the HCCH has been actively reaching out to the Asia-Pacific, including through the HCCH Asia-Pacific Regional Office which has been operational in Hong Kong since 2012. Various activities of this regional office, which include seminars and events to present the HCCH in this part of the world. The author suggests that this shows the attention paid to the Asia-Pacific region as well as a recognition of the region’s potential for further economic growth and social and legal developments. Against this background, this Chapter considers the role and significance of the HCCH instruments in the Asia-Pacific. After giving an overview of the presence of the HCCH in the region to date, the Chapter reflects on the importance and possible impact of the HCCH instruments in the area of child protection and commercial matters. The Chapter notes that the rapid economic developments and gradual advancement of regional integration in the Asia-Pacific may well require enhanced common legal settings in the future. The author argues that although there is a long way off for the region to follow an integration model such as the EU’s, gradual developments toward enhanced legal cooperation and coordination could be expected in private international law of the Asia-Pacific. The HCCH will continue to play an important role in providing a legal bridge for States within the Asia-Pacific region and across the world.
Horatia Muir Watt
This Chapter concerns some of the contemporary philosophical dimensions of private international law as shaped by globalisation, and the ways in which the HCCH can be understood in this context. Viewing the path of the HCCH in retrospect, the Chapter raises the question to what extent the Organisation’s work and goals coincide, or can still be reconciled, with the changing normative foundations that might be ascribed to private international law today. The author argues that the HCCH has moved from its initial mode of relative closure among like-minded systems, to a progressive one of tolerance for a marginal degree of diversity, and then to a distinctly pluralistic stance. The author also notes that, remarkably, the HCCH has managed to accomplish this double shift within the framework of its unifying project, suggesting that the very understanding of unification appears to have changed, from the quest for uniformity among like-minded national rules of the conflict of laws to adhesion to a common methodology designed precisely to accommodate pluralism. At a time when closure threatens, such hospitality towards the other is singularly precious.