The Hague Conference on Private International Law (HCCH) 8 May - - PowerPoint PPT Presentation

The Hague Conference on Private International Law (HCCH)

8 May 2014 Christophe Bernasconi Secretary General Hague Conference on Private International Law

Why HCCH…?

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The Hague Conference

• n Private International Law

La Conférence de La Haye de droit international privé

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The Hague Conference

• n Private International Law

La Conférence de La Haye de droit international privé (HC + CH = HCCH)

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• An intergovernmental organisation

the origin of which goes back to 1893

• The oldest international organisation

in The Hague, the “international city

• f peace and justice”
• The only international organisation in

The Hague with a legislative function (i.e., not a court or tribunal)

• “World organisation for

cross-border co-operation in civil and commercial matters”

What is the HCCH?

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• The purpose of HCCH is to “work for the

progressive unification of the rules of private international law”

• The work of HCCH addresses

private law problems arising among individuals or companies in situations connected with more than one State

What does the HCCH do?

Cross-border family relation Cross-border business deal Cross-border legal procedure JURISDICTION APPLICABLE LAW RECOGNITION & ENFORCEMENT LEGAL CO-OPERATION

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• By developing international treaties

known as the “Hague Conventions”

• 38 Hague Conventions have been concluded
• The Hague Conventions are open to all

States (even those that are not Members

• f the organisation)
• The Hague Conventions co-exist with

existing bilateral and regional instruments

• Hague Conventions do not harmonise substantive

law – instead, they provide ‘road signs’ showing the way in cross-border situations or establish a framework for cross-border cooperation among States

How does the HCCH do it?

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Post-Convention services

• The Hague Conference has been a pioneer in

developing methods to support the continued

• peration of its Conventions

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PROMOTION IMPLEMENTATION MONITORING AND REVIEW OF PRACTICAL OPERATION

HCCH Members

76 Members (75 States and the European Union)

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Admitted State Member State Candidate State

HCCH Members

76 Members (75 States and the European Union)

BUT…

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Connected States

144 States are “connected” to the HCCH

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Member of the Hague Conference

Non-Member State that is a Contracting State or signatory to at least one Hague Convention or State in the process of becoming a Member

Regional presence

Latin America Regional Office in Buenos Aires (commenced

• perations in 2005)

Permanent Bureau in The Hague Asia Pacific Regional Office in Hong Kong (opened in December 2012)

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Giving effect to Human Rights

• 1989 UN Convention on the Rights of the Child

Article 9 UNCRC Children whose parents do not live together have the right to stay in contact with both parents, except where contrary to the child’s best interests Article 11 UNCRC States Parties shall take measures to combat the illicit transfer and non-return of children abroad (promotes conclusion of bilateral or multilateral agreements or accession to existing agreements) Article 21 UNCRC For adoption, the best interests of the child shall be the paramount consideration (promotes conclusion of bilateral or multilateral agreements, which ensure that the placement of the child in another country is carried out by competent authorities) Article 27(4) UNCRC States Parties shall take all appropriate measures to secure the recovery of maintenance for the child (promotes accession to international instruments or the conclusion of such agreements) Article 35 UNCRC States Parties shall prevent abduction of, sale of, or traffic in children (requiring all appropriate national, bilateral and multilateral measures to be taken)

Child Abduction & Child Protection Conventions Child Abduction Convention Adoption Convention Child Abduction & Adoption Conventions Child Support Convention

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• Choice of law in international contracts
• Judgments Project
• Parentage/Surrogacy Project
• Recognition and enforcement of agreements

reached in the course of international child disputes

• Recognition and enforcement of foreign civil

protection orders

Ongoing legislative work

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The HCCH and the 1980 Convention on the Civil Aspects of International Child Abduction

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92 Contracting States

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New Contracting States in 2014: Japan & Iraq

Continuous growth in the number of Contracting States

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The role of the Permanent Bureau - Promote the Convention

• Encourage and support States to join and prepare implementing

legislation

• Mentoring Programme / Twinning arrangements
• Implementation checklists
• Build trust in order to favour acceptances of accession
• Country Profiles
• Questionnaire for newly acceding States
• Build bridges between different legal cultures
• Malta Process
• Dialogue with practitioners
• Development of the Convention
• Identification of new challenges and trends
• Invitation to contribute to the work of the HCCH
• Diplomacy & Technical Assistance work!

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The role of the Permanent Bureau - Provide information to the public

• Guides to Good Practice

and Practical Handbooks

• Part I – Central Authority Practice
• Part II – Implementing Measures
• Part III – Preventive Measures
• Part IV – Enforcement
• Mediation
• Judges’ Newsletter
• INCADAT, the International

Child Abduction Database

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Statistics (2008) Overall outcomes

• Majority of applications do not lead to a court

ruling (56% in 2008)

• Minority of applications end in a judicial refusal to
• rder the return of the child (15% in 2008)

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0% 5% 10% 15% 20% 25% 30% 35% Voluntary return Judicial return Judicial refusal Withdrawn

1999 2003 2008

Statistics (2008) Timing

• Longer time periods to process applications
• Voluntary returns are fastest process

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The mean number of days taken to reach a final conclusion

Statistics (recent developments)

• US Statistics 2013 (for Hague Proceedings)
• 362 voluntary returns, 217 judicial return orders, 160 judicial

refusals

• Unresolved Return Applications remain stable, with a positive

trend (118 in 2012, 112 in 2013, 111 in 2014)

• Countries Not Compliant, with Patterns of Non-Compliance or

Enforcement Concerns have dropped from 12 in 2012 to 11 in 2013 and 8 in 2014

• Quebec Statistics 2013
• 7 voluntary returns, 2 judicial return orders, no judicial

refusal

• Germany Statistics 2012
• 53 voluntary returns, 15 judicial return orders, 6 judicial

refusals

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The Convention before highest Courts (selection)

• ECtHR Grand Chamber decision Neulinger and Shuruk v.

Switzerland (6 July 2010) on the need of “an in-depth examination of the entire family situation and of a whole series of factors” (§139)

• ECtHR Grand Chamber decision X v. Latvia (26 November 2013)

emphasises the complementarities between the ECHR and the 1980 Convention

• “in the area of international child abduction the obligations imposed by Article 8 on

the Contracting States must be interpreted in the light of the requirements of the Hague Convention” (§ 93)

• “the Court considers it opportune to clarify that its finding in paragraph 139 of the

Neulinger and Shuruk judgment does not in itself set out any principle for the application of the Hague Convention by the domestic courts” (§ 105)

• U.S. Supreme Court applies the Convention in a way that ensures

international consistency in interpreting the Convention

• Abbott v. Abbott (17 May 2010)
• Chafin v. Chafin (19 February 2013)
• Lozano v. Alvarez (5 March 2014)

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Concentration of jurisdiction

43 Contracting States with concentrated jurisdiction

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Judicial networking and communication

International Hague Network of Judges

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60 States and 91 Judges

Mediation in the context of the 1980 Convention

• The Convention encourages the amicable resolution
• f family disputes
• Central Contact Points for international family

mediation in the context of the Malta Process

• Mediation should not delay the judicial proceedings
• The Netherlands has a well-designed mediation system

with effective time targets

• In 2011, 50 % of return applications in the Netherlands

went to mediation, 1/3 of mediations ended in full agreement, and 1/3 ended in partial agreement

• Experts’ Group on cross-border recognition and

enforcement of agreements, including those

• btained through mediation

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Hot topics for next Special Commission meeting 2015/2016

• « Live » or « real-time » - statistics through

INCASTAT

• Guide to Good Practice on the interpretation and

application of Article 13(1)b) (the “grave risk” exception)

• Model travel consent form
• Other issues that will be identified by stakeholders,

including NGOs

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Christophe Bernasconi Secretary General cb@hcch.nl www.hcch.net

Thank you for your attention