Encyclopedia of Private International Law
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Encyclopedia of Private International Law

Edited by Jürgen Basedow, Giesela Rühl, Franco Ferrari and Pedro de Miguel Asensio

The role and character of Private International Law has changed tremendously over the past decades. With the steady increase of global and regional inter-connectedness the practical significance of the discipline has grown. Equally, so has the number of legislative activities on the national, international and, most importantly, the European level. With a world-class editor team, 500 content items and authorship from almost 200 of the world’s foremost scholars, the Encyclopedia of Private International Law is the definitive reference work in the field. 57 different countries are represented by authors who shed light on the current state of Private International Law around the globe, providing unique insights into the discipline and how it is affected by globalization and increased regional integration. The Encyclopedia consists of three inter-linked pillars, enhanced by sophisticated search and cross-linking functionality. The first pillar consists of A-Z coverage of the scope and substance of Private International Law in the form of 247 entries. The second pillar comprises detailed overviews of the Private International Law regimes of 80 countries. The third pillar presents valuable, and often unique, English language translations of the national codifications and Private International Law provisions of those countries. This invaluable combination represents a powerful research tool and an indispensable reference resource.
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Chapter H.1: Hague Conference on Private International Law

Marta Pertegás

I. Foundation and legal nature

The Hague Conference on Private International Law (the ‘Hague Conference’ or ‘Conference’) is an intergovernmental organization seated in The Hague in the Netherlands, the purpose of which is ‘to work for the progressive unification of the rules of private international law’ (art 1 Statute of 15 July 1955 of the Hague Conference on Private International Law, in Hague Conference on Private International Law (ed), Recueil de Conventions – Collection of Conventions (1951–2009) (Intersentia 2009) 2).

The Hague Conference relies upon a robust history: its first session was held in 1893 further to the initiative of TMC Asser (a prescient Dutch jurist who was awarded the Nobel Peace Prize in 1911). The states participating in the first session were Austria-Hungary, →Belgium, →Denmark, →France, →Germany, →Italy, →Luxembourg, the →Netherlands, →Portugal, →Romania, Russia, →Spain and →Switzerland. Five more sessions were held prior to the Second World War (in 1894, 1900, 1904, 1925 and 1928). →Sweden and →Norway joined as participating states in 1894; →Japan followed as the first non-European state in 1904, and →Austria, Czechoslovakia, →Hungary, →Latvia, →Poland, the Serbo-Croat-Slovene State and the →United Kingdom of Great Britain and Northern Ireland joined in 1925.

The first successful Hague Convention, the Convention on Civil Procedure with an additional Protocol, was adopted by the Second Session in 1894. It was signed on 14 November 1896, and the Convention entered into force on 23 May 1899, coinciding with the first Hague Peace Conference. The success of this first Convention laid the groundwork for the conclusion of five family law conventions at the Conference’s third and fourth sessions in 1900 and 1904.

Despite the conclusion of a series of conventions, the activities of the Conference were not of a permanent nature until several decades later. In 1951, the governments of 16 states (the Federal Republic of Germany, Austria, Belgium, Denmark, Spain, →Finland, France, Italy, Japan, Luxembourg, Norway, the Netherlands, Portugal, the United Kingdom of Great Britain and Northern Ireland, Sweden and Switzerland) provided the Conference with a Statute, which entered into force on 15 July 1955. As a result, the Hague Conference became a full-blown permanent intergovernmental organization, and was equipped with a permanent Secretariat, the ‘Permanent Bureau’.

The adoption of this multilateral treaty as the institutional basis for the Conference reinforced its permanent character. The states ‘which participated in one or more Sessions of the Conference’ were invited to accept the Statute (ibid arts 2 and 15). In 2001, a liberal interpretation of art 2 enabled the →Russian Federation to become a member of the organization (on the basis of the Russian Federation being the successor of the Russian Empire, which had participated in the first four sessions from 1893 to 1904). It also made it possible for →Brazil to return to the organization in 2001, on the basis of its prior membership between 1972 and 1978 (Hans Van Loon, ‘Conférence de La Haye de droit international privé’ [2011] Répertoire International Dalloz 1). Any other state ‘the participation of which is from a juridical point of view of importance for the work of the Conference’ may become a member, provided a favourable vote is cast by the members of the organization (Statute art 2.2).

As of 1 January 2017, the organization counts 82 members (81 states and one Regional p. 871Economic Integration Organization, the European Union).

The admission of an international organization as a member of the Conference required a modification of the Statute (in 2006, with 1 January 2007 as date of entry into force, in Hague Conference on Private International Law (ed), Recueil de Conventions – Collection of Conventions (1951–2009) (Intersentia 2009) Foreword para 3). According to the new art 3 of the Statute, a Regional Economic Integration Organization (REIO) may submit an application for membership to the Secretary General. In light of the exclusive competence of the EU for all areas of private international law for which it has adopted legislation (art 3(2) TFEU (The Treaty on the Functioning of the European Union (consolidated version), [2016] OJ C 202/47)), it became necessary for the EU (the European Community as it then was) to become a full member of the Conference (and not an Observer as in the past). The EU became the first (and so far the only) REIO in the membership of the Hague Conference.

The European roots of the Hague Conference are also reinforced by the strong connection the Hague Conference has with its host state, the Netherlands. The Netherlands Standing Government Committee for the Codification of Private International Law (the ‘Staatscommissie’) used to supervise the activities of the Hague Conference and oversaw the organization and the conduct of the sessions for decades. Under the revised Statute, the Standing Government Committee maintains certain important prerogatives, such as the appointment of the Secretary General and the Secretaries (Statute arts 4 and 5).

II. Function and competences

The Hague Conference is charged with the drawing up and the servicing of multilateral treaties in the field of private international law.

It is important to stress the focus of the Hague Conference on Private International Law, understood as the rules on →choice of laws, the rules on international jurisdiction, the rules on recognition and enforcement of decisions and related aspects of legal cooperation. This focus distinguishes the mandate of the Hague Conference from that of other intergovernmental organizations operating in the field of the unification or harmonization of questions of private law, such as →UNIDROIT or UN agencies such as →UNCITRAL or UNICEF.

Over a period of more than a century, the Conference, while maintaining many of its essential characteristics, has continuously adapted and transformed itself to respond to changing and expanding needs.

First, in recent decades there has been a growing need for the servicing of existing conventions, in parallel to what had been the Conference’s main task for decades, ie the elaboration of new conventions. This has led to a restructuring of the activities of the Conference, with more focus on the operation of existing instruments and less emphasis on the development of new instruments.

Second, the organization has attracted many new states to its ranks, each with distinct and diverse needs in the field of private international law. Amalgamating all these needs and balancing a work programme that satisfies the expectations of a heterogeneous membership has shaped the evolution process of the Hague Conference in the past decades.

III. Organization and working methods

The organization of the Conference’s activities is coordinated by a Secretariat – the Permanent Bureau. The main office is located in The Hague and two Regional Offices were set up in the last decade, one for Latin America in Buenos Aires (→Argentina) and one for the Asia Pacific region in Hong Kong (→Hong Kong, SAR of China).

According to the Statute, the Permanent Bureau is composed of a Secretary General and four Secretaries (although the number of Secretaries has varied in past years), as well as a staff of international civil servants (28 full-time equivalent in total on 1 January 2017) (Statute art 5). The Permanent Bureau is responsible for the preparation and the organization of Diplomatic Sessions, as well as Special Commissions, for both the development of Hague Conference instruments and the effective implementation and operation of the Conventions (Statute arts 5 and 6). It carries out the basic research required for any subject taken up by the Conference and also engages in various activities to support an efficient operation of the Conventions.

In addition to diplomatic representations accredited in the Netherlands, the Permanent Bureau maintains direct contacts with its p. 872members through designated national and contact organs. It also develops permanent contacts with experts and delegates from Member States, with the national central or competent authorities designated under certain conventions, as well as with international governmental and non-governmental organizations, and with the professional and academic communities. In spite of increasing requests from citizens involved in the application of the Conventions, the Permanent Bureau does not have the mandate or the means to respond to requests for information from those individuals.

The Statute refers to the Ordinary Session of the Hague Conference as the high-level meeting to be held, in principle, every four years. The Conference may also be convened in Extraordinary Session if necessary (Statute art 4(7)). Each Session (also referred to as the Diplomatic Session) is concluded by the adoption of a Final Act which contains the official version of the Convention or conventions concluded during that Session. The last Ordinary Session was held in 2007. Since then no new one has been convened as the Hague Conference has not concluded any new Convention in the past years.

The Council on General Affairs and Policy (the Council) is composed of all members of the Conference and ‘has charge of the operation of the Convention’ (Statute art 4). A stock-taking Council meeting is held in principle every year around March. At this meeting, the Council decides which topics are to be placed on, kept on or removed from the Conference’s Agenda and determines which actions are needed for the development of ongoing projects, including the establishment of Special Commissions (Statute art 8) in the interval between two Ordinary Sessions.

The Council of Diplomatic Representatives is the organ with primary responsibility for financial and budgetary matters. The annual budget of the Conference is submitted to this Council for approval.

A Special Commission is set up ‘to prepare draft Conventions or to study all questions of private international law which come within the purpose of the Conference’ (Statute art 8). This is therefore an organ composed of subject-matter experts appointed by states, as well as a number of observers representing other interested intergovernmental organizations or NGOs which examine draft Conventions, as well as other normative instruments. The functions of Special Commissions have evolved to include the spread and effective implementation of existing Conventions (in response to the review clauses inserted in more recent Conventions, such as art 54 of the Hague Child Protection Convention (Hague Convention of 19 October 1996 on jurisdiction, applicable law, recognition, enforcement and co-operation in respect of parental responsibility and measures for the protection of children, 35 ILM 1391)).

The working methods of the Hague Conference very much depend on the activity being conducted.

To prepare possible new instruments, the first step is for a topic to be included on the Agenda of the Hague Conference by the Diplomatic Session or the Council (upon request by a Member, an international organization or further to a suggestion made by the Permanent Bureau). Next, the Permanent Bureau conducts preliminary studies on the topic at stake, both with regard to questions of private international law and from a comparative law perspective (→Comparative law and private international law). A study on the feasibility of the topic at stake may be needed as well to assess the likelihood of international consensus on a given topic. These series of preliminary studies will next guide the members of the Hague Conference in determining the further stages in the elaboration of a draft Convention. The Permanent Bureau may, for instance, be charged with the elaboration of an introductory memorandum or checklist of issues to be addressed by a limited number of experts (either appointed by states or by the Permanent Bureau depending on the project’s mandate) in meetings of a Working Group and/or Experts’ Group. While there is no clear-cut distinction between a Working Group and an Experts’ Group, their respective mandates generally reflect different stages of advancement in the process of developing new instruments at the Hague Conference. A Working Group advances work that would lead to the negotiation of a new instrument, a Convention or another form of legislative instrument. An Experts’ Group is generally convened at the exploratory stage in the decision-making process.

Work will then primarily shift to a Special Commission, which will be convened once or in a series of subsequent meetings until a preliminary draft Convention is ready. A Rapporteur (or Co-Rapporteurs) will be appointed among the experts of the Special Commission and p. 873will be charged with the elaboration of a draft Report on the preliminary draft Convention. Members may be consulted on the preliminary draft Convention and the draft Report in preparation for discussions at the Diplomatic Session. For decades, the Ordinary Session of the Hague Conference was held every four years in order to complete the elaboration process of the Conventions under preparation. Since 2002, all Conventions have been concluded on the basis of consensus, the rule of consensus being the prevailing decision-making system for the Sessions, Council and Special Commission (Statute art 8(2)).

The Twenty-First Session, which was held in November 2007, adopted the Hague Convention of 23 November 2007 on the international recovery of child support and other forms of family maintenance, [2011] OJ L 192/51, and the Hague Protocol of 23 November 2007 on the law applicable to maintenance obligations, [2009] OJ L 331/19. Since 2007, however, no new Convention has been adopted. Interestingly, the Hague Conference revisited its traditional working method for the elaboration of a non-binding instrument, ie the future Hague Principles on Choice of Law in International Commercial Contracts (The Hague Principles on Choice of Law in International Commercial Contracts – approved on 19 March 2015, available at <www.hcch.net>). In 2013, the Council decided that it would be the Council itself and not the Diplomatic Session that would formally adopt the instrument upon completion.

For work on existing instruments (usually referred to as ‘post-Convention’ work), the Permanent Bureau is charged by the Council with a number of very diverse tasks, ranging from the preparation of publications to individualized programmes to assist a given state with the implementation or operation of a Convention. An annual report on progress is presented by the members of the Permanent Bureau and the Council determines follow-up steps accordingly.

IV. Contribution to private international law

The work of the Hague Conference is pivotal to the progressive development of private international law. The most visible proof of this contribution is obviously the collection of Conventions concluded by the Conference. Between 1893 and 1904 the Conference adopted seven international Conventions, six of which have been subsequently replaced by more modern instruments. From 1951 to 2008 the Conference adopted 38 international Conventions. Until 1960 the Conventions were drafted only in French; since then they have been drawn up in French and English. Among those that have been the most widely ratified, the following Conventions should be mentioned: Suppression of Legalization (‘Apostille’) (Hague Convention of 5 October 1961 abolishing the requirement of legalization for foreign public documents, 527 UNTS 189), Intercountry Adoption (Hague Convention of 29 May 1993 on protection of children and co-operation in respect of intercountry adoption, 32 ILM 1134), International Child Abduction (Hague Convention of 25 October 1980 on the civil aspects of international child abduction, 1343 UNTS 89), International Child Protection (Hague Convention of 19 October 1996 on jurisdiction, applicable law, recognition, enforcement and co-operation in respect of parental responsibility and measures for the protection of children, 35 ILM 1391), Maintenance Obligations (Hague Convention of 23 November 2007 on the international recovery of child support and other forms of family maintenance, [2011] OJ L 192/51) and Form of Wills and Other Testamentary Dispositions (Hague Convention of 5 October 1961 on the conflicts of laws relating to the form of testamentary dispositions, 510 UNTS 175). Some of the Hague Conventions deal with the determination of applicable law, some with the conflict of jurisdictions, some with the recognition and enforcement of foreign judgments and some with administrative and judicial cooperation between authorities. Some of the Hague Conventions combine one or more of these aspects of private international law. The Conventions prepared by the Hague Conference since 1951 appear in the Collection of Conventions which is published at regular intervals by the Permanent Bureau (latest edition appeared in 2009). Another publication of great comparative and explanatory value is the Collection of Proceedings (nearly 50 volumes and soon to be available in a digitalized format) which compile the preliminary documents, preliminary draft Conventions and minutes of discussions, as well as the Explanatory Reports on the texts adopted.

The Hague Conference’s effect goes beyond adopted Conventions. At the Hague Conference, members increasingly request implementation p. 874and application tools for existing Conventions. Recommendations, Good Practice Guides and other ‘soft’ law standards are being established and sometimes provide very welcome techniques for the adaptation of a Convention to changing circumstances, eg where States Parties to the 1961 Apostille Convention, on the basis of a Convention which preceded the age of electronic communication, mutually accept electronic apostilles (Christophe Bernasconi, Mayela Celis and Alexander Kunzelmann, ‘Of Luddites and Luminaries: The Use of Modern Technologies under the Hague Legal Co-operation Conventions’ in The Permanent Bureau of the Hague Conference on Private International Law (ed), Liber Amicorum Hans van Loon: A Commitment to Private International Law (Intersentia 2013) 34).

Sometimes ‘soft’ law is used as an alternative for, or an intermediate step towards, ‘hard’ law. The ‘Malta process’ offers a good example of the latter. The 2004, 2006, 2009 and 2016 Malta Declarations on Cross-Frontier Family Law Issues (available at <www.hcch.net>), adopted by judges and experts from states from different legal traditions, reflect common principles that may contribute to a wider application of binding multilateral arrangements, in particular the Hague Child Protection Convention.

Moreover, the work of the Hague Conference has been a primary source of inspiration for private international law reform at different levels and in a variety of jurisdictions, even beyond the membership of the organization. The most salient example is the significant influence Hague Conference instruments have had in the development of a very comprehensive body of European Union private international law created over the past decades (→European Union and private international law). Moreover, at the external level, the European Union considers the Hague Conference as the right forum in which to address global issues of private international law (Commission, ‘The EU Justice Agenda for 2020 – Strengthening Trust, Mobility and Growth within the Union’ COM(2014) 144 final).

V. Future developments

Looking ahead, the Hague Conference is set to continue fulfilling its mandate for the progressive unification of the rules of private international law, yet in a geographically broader context and with a wider range of lawmaking techniques than were contemplated when it was created as an intergovernmental organization.

Indeed, the number of members of the Hague Conference continues to increase, expanding the organization’s reach to all continents of the world. Consequently, the ‘progressive unification of the rules of private international law’ necessitates a much wider and variable range of techniques. Furthermore, the Hague Conference’s output may include quite elaborate norms and practices which require the involvement of many institutions at different levels and which will only be successful if the Hague Conference continues to monitor and review the operation and application of its instruments.

An adequate balance between lawmaking and implementation and monitoring efforts will be key to the organization’s future developments. Ideally, a holistic approach to these different means of pursuing the purpose of the Hague Conference is desirable, one where lawmaking initiatives stem from an empirical assessment of the operation of current norms and evidence-based needs of globally mobile citizens.

Literature

  • Christophe Bernasconi, Mayela Celis and Alexander Kunzelmann, ‘Of Luddites and Luminaries: The Use of Modern Technologies under the Hague Legal Co-operation Conventions’ in The Permanent Bureau of the Hague Conference on Private International Law (ed), Liber Amicorum Hans van Loon: A Commitment to Private International Law (Intersentia 2013);

  • Antonio Boggiano, ‘The Contribution of the Hague Conference to the Development of Private International Law in Latin America: Universality and genius loci’ (1992) 233 Rec. des Cours 99; Bureau Permanent de la Conférence (ed), Célébration du Centenaire de la Conférence de la Haye de droit international privé 19 mai 1993 (The Hague: Permanent Bureau of the Conference 1995);

  • Georges Droz, ‘La Conférence de la Haye de Droit International Privé en 1980: Évolution et Perspectives’ (1980) 168 Rec. des Cours 127;

  • Georges Droz, ‘Démembrement d’États et succession aux Conventions de La Haye’ in L’internationalisation du droit: mélanges en l’honneur d’Yvon Loussouarn (Dalloz 1994);

  • John David McClean, ‘The Contribution of the Hague Conference to the Development of Private International Law in Common Law Countries’ (1992) 233 Rec. des Cours 267;

  • Antoon Struycken, ‘Coordination and Co-operation in Respectful Disagreement: General Course on Private International Law’ (2004) 311 Rec. des Cours 401;

  • Matthijs H van Hoogstraten, ‘La codification par traités en droit international privé dans le cadre de la Conférence de la Haye’ (1967) 122 Rec. des Cours 337;

  • Hans Van Loon, ‘The Hague Conference on Private International Law’ in Peter J van Krieken and David McKay (eds), The Hague: Legal Capital of the World (TMC Asser Press 2005) 51826;

  • Hans Van Loon, ‘Conférence de La Haye de droit international privé’ [2011] Répertoire International Dalloz 1;

  • Alfred von Overbeck, ‘La contribution de la Conférence de la Haye au développement du droit international privé’ (1992) 233 Rec. des Cours 9.p. 875