1 / 29

INTERNATIONAL JUDICIAL COOPERATION. THE HAGUE CONFERENCE ON PRIVATE INTERNATIONAL LAW

INTERNATIONAL JUDICIAL COOPERATION. THE HAGUE CONFERENCE ON PRIVATE INTERNATIONAL LAW. FRANCISCO JAVIER ARROYO FIESTAS. CHIEF JUSTICE OF COURTROOM 1 OF THE SUPREME COURT OF SPAIN. INTERNATIONAL JUDICIAL COOPERATION. BILATERAL AND MULTILATERAL CONVENTIONS.

isleen
Download Presentation

INTERNATIONAL JUDICIAL COOPERATION. THE HAGUE CONFERENCE ON PRIVATE INTERNATIONAL LAW

An Image/Link below is provided (as is) to download presentation Download Policy: Content on the Website is provided to you AS IS for your information and personal use and may not be sold / licensed / shared on other websites without getting consent from its author. Content is provided to you AS IS for your information and personal use only. Download presentation by click this link. While downloading, if for some reason you are not able to download a presentation, the publisher may have deleted the file from their server. During download, if you can't get a presentation, the file might be deleted by the publisher.

E N D

Presentation Transcript

  1. INTERNATIONAL JUDICIAL COOPERATION. THE HAGUE CONFERENCE ON PRIVATE INTERNATIONAL LAW FRANCISCO JAVIER ARROYO FIESTAS. CHIEF JUSTICE OF COURTROOM 1 OF THE SUPREME COURT OF SPAIN

  2. INTERNATIONAL JUDICIAL COOPERATION • BILATERAL AND MULTILATERAL CONVENTIONS. • Bilateralism has changed from being the rule to the exception. • Globalisation leads to multilateralism. • The market demands legal security and judicial cooperation.

  3. MULTILATERAL AREAS • THE EU LEGAL AREA • http://ec.europa.eu/justice_home/judicialatlascivil/html/index_en.htm • THE HAGUE CONFERENCE • www.hcch.net • ORGANIZATION OF AMERICAN STATES • http://www.oas.org/dil/treaties_signatories_ratifications_subject.htm#Judicial

  4. THE HAGUE CONFERENCE. A WORLD ORGANISATION • With 72 Members (71 States and the European Union) from every continent, the Hague Conference on Private International Law is an international intergovernmental organisation. The Conference, a melting pot of different legal traditions, has developed multilateral legal instruments which respond to world needs, at the same time as guaranteeing their observation. A growing number of non-member States are signing the Hague Conventions. One hundred and thirty countries from all over the world currently participate in the Conference’s work.

  5. BRIDGE BETWEEN LEGAL SYSTEMS • Personal, family or commercial situations which are connected with more than one country are commonplace in the modern world. These situations can be affected by differences between the legal systems in force in these countries. • With a view to resolving these differences, the States have adopted special rules collectively known as “private international law“ rules. • The statutory mission of the Conference is to work for the “progressive unification” of these rules.

  6. CENTENNIAL INTERNATIONAL ORGANISATION • The Conference held its first meeting in 1893, at the initiative of T. M. C. Asser  (Nobel Peace Prize in 1911). It was made into a permanent intergovernmental organisation in 1955, the year in which its Statute entered into force. 

  7. FUNCTIONING • The Organisation meets in principle every four years in Plenary Session (ordinary Diplomatic Session) to negotiate and adopt Conventions and to decide on future work. The Conventions are prepared by Special Commissions or working groups held several times a year, generally at the Peace Palace in The Hague, increasingly in various Member Countries. Special Commissions are also organised to review the operation of the Conventions and adopt recommendations with the object of improving the effectiveness of the Conventions and promoting consistent practices and interpretation.

  8. FINANCING • The Organisation is funded principally by its Members. Its budget is approved every year by the Council of Diplomatic Representatives of Member States. The Organisation also seeks and receives some funding for special projects from other sources.

  9. HEADQUARTERS AND SECRETARIAT • The activities of the Conference are coordinated by a multinational Secretariat (the Permanent Bureau) located in The Hague. The Conferences working languages are English and French. • The Secretariat prepares the Plenary Sessions and Special Commissions and carries out the basic research required for any subject taken up by the Conference. It also engages in various activities to support the effective implementation and operation of the Conventions.

  10. SECRETARIAT CONT. • In addition to Diplomatic representations in The Netherlands, the Secretariat maintains direct contact with its Members through designated National and Contact Organs. The Secretariat also develops permanent contact with experts and delegates of the Members, with the national Central Authorities designated under certain Conventions, as well as with international governmental and non-governmental organisations, and with professional and academic communities. Increasingly, the Secretariat also responds to requests for information from users of the Conventions.

  11. THE HAGUE CONVENTIONS • Between 1893 and 1904, the Conference adopted 7 international Conventions, which have all been subsequently replaced by more modern instruments.

  12. THE HAGUE CONVENTIONS CONT. • Between 1951 and 2008, the Conference adopted 38 international Conventions, the practical operation of many of which is regularly reviewed by Special Commissions. Even when they are not ratified, the Conventions have an influence upon legal systems, in both Member and non-Member States. They also form a source of inspiration for efforts to unify private international law at regional level, for example within the Organisation of American States or the European Union.

  13. MOST WIDELY RATIFIED CONVENTIONS • The abolition of legalisation (Apostille) • Service of process • Taking of evidence abroad • Access to justice • International child abduction • Intercountry adoption • Conflicts of laws relating to the form of testamentary dispositions • Maintenance obligations • Recognition of divorces

  14. MOST RECENT CONVENTIONS • The most recent Conventions are the Convention on the Law Applicable to Certain Rights in respect of Securities held with an Intermediary (2006), the Convention on Choice of Court Agreements (2005), the Convention on the International Recovery of Child Support and Other Forms of Family Maintenance together with the Protocol on the Law Applicable to Maintenance Obligations (2007).

  15. PRIORITIES • Priority is given to Conventions about: • Cross-border mediation in family matters. • Choice of law in international contracts. • Accessing the content of foreign law.

  16. FUTURE CONVENTIONS • The following topics are on the agenda, without priority: • Questions of private international law raised by the information society, including electronic commerce, conflict of jurisdiction, applicable law and international judicial and administrative cooperation in respect of civil liability for environmental damage; jurisdiction, recognition and enforcement of decisions in maters of succession upon death and questions of private international law relating to unmarried couples, as well as assessment and analysis of transnational legal issues relating to indirectly held securities and security interests.

  17. PUBLICATIONS • The Permanent Bureau regularly publishes and maintains a Collection of Conventions together with handbooks on the operation of certain Conventions. It also edits the Proceedings of each of the Sessions, which now encompasses an impressive collection of "Actes et Documents”. Some of these documents are also available on CD-ROM or microfiches (only in English and French).

  18. CONFERENCE WEBSITE • The Conference website, www.hcch.net, presents general information concerning the Hague Conference as well as detailed and updated information on the Hague Conventions: texts of the Conventions, full status reports, bibliographies, information regarding the authorities designated under the Conventions on judicial and administrative co-operation, explanatory reports, etc.

  19. INTERNATIONAL CHILD ABDUCTION DATABASE • INCADAT,  the International Child Abduction Database, www.incadat.com, is a special initiative which provides easy access to many of the leading judicial decisions taken by national courts around the world in respect of the 1980 Hague Convention on international child abduction.

  20. EFFECTIVE ACCESS TO THE HAGUE CONFERENCE WEBSITE www.hcch.net Child abduction http://www.hcch.net/index_en.php?act=conventions.text&cid=24 Accessions and ratifications http://www.hcch.net/index_en.php?act=conventions.status&cid=24

  21. CONFLICT OF RULES • Unfortunately it is common for EU judges to confuse the field of The Hague Conventions, and therefore, it should be clarified that the applicable rule between individuals or corporate persons in the EU, where it exists, is the Community Regulation.

  22. CONFLICT OF RULES CONT. • When one of the parties to the action is not an EU citizen (Algerian and Spanish), the common rule will be conventional, where it exists, for example a Hague Convention or a bilateral convention.

  23. EU RELATIONSHIP WITH THE HAGUE CONFERENCE • Council Decision 2006/719/EC, of 5 October 2006, on the accession of the Community to the Hague Conference on Private International Law. • On 5 October 2006 the Council of the European Union adopted a decision regarding the accession of the European Community to the Hague Conference on Private International Law (HCCH). The purpose of this international intergovernmental organisation is to work for the progressive unification of the rules on Private International Law in the participating countries. The European Community has been a participant of the HCCH since 3 April 2007.

  24. RELATIONSHIPS CONT. • The Community deposits a statement of competence (annex II) specifying the matters in respect of which competence has been transferred to it by its Member States. These are measures in the field of judicial cooperation in civil matters that have cross-border implications, necessary for the proper functioning of the internal market (Title IV of the EC Treaty).

  25. RELATIONSHIPS CONT. • These measures are designed to: • improve and simplify the system for cross-border service of judicial and extra-judicial documents, cooperation in the taking of evidence and the recognition and enforcement of decisions in civil and commercial cases, including decisions in extra-judicial cases; • promote the compatibility of the rules applicable in Member States concerning the conflict of laws and jurisdiction; • eliminate obstacles to the good functioning of civil proceedings.

  26. RELATIONSHIPS CONT. • Furthermore, the Community has external responsibilities that can be subject to Conventions of the HCCH, for example in the fields of the internal market and consumer protection, as well as adopting measures for implementing common policies or if the international agreement is necessary to obtain one of the Community's objectives.

  27. EXCEPTION TO ACCESSION • Denmark, the United Kingdom and Ireland have a special regime with regards to title IV of the EC Treaty, which is the legal basis of judicial cooperation on civil matters. Community instruments adopted in virtue of this Title do not bind Denmark and are not applied to this country. Ireland and the United Kingdom are bound by the legal instruments adopted in application of Title IV if they inform the Council of the European Union to this regard. Both countries decided to participate in all the measures mentioned as a reference. This decision is therefore applied to all the EU Member States except Denmark.

  28. CONCLUSIONS • Without judicial cooperation there is no real area of international justice. • Good practice and reciprocity are fundamental. • Differences are not objectionable, legal traditions must be respected.

  29. CONCLUSIONS CONT. • The concept of public order should be interpreted restrictively. • Cooperation is breached when fundamental rights and freedoms are not respected by another State • In the EU the basic premise is that all States are de jure states, and therefore there is no room for reticence or suspicion.

More Related