INTERNATIONAL JUDICIAL INTERNATIONAL JUDICIAL COOPERATION. COOPERATION.

THE HAGUE CONFERENCE ON THE HAGUE CONFERENCE ON PRIVATE INTERNATIONAL LAWPRIVATE INTERNATIONAL LAW

FRANCISCO JAVIER ARROYO FIESTAS. FRANCISCO JAVIER ARROYO FIESTAS.

CHIEF JUSTICE OF COURTROOM 1 OF THE SUPREME CHIEF JUSTICE OF COURTROOM 1 OF THE SUPREME COURT OF SPAINCOURT OF SPAIN

INTERNATIONAL JUDICIAL INTERNATIONAL JUDICIAL COOPERATIONCOOPERATION

• BILATERAL AND MULTILATERAL BILATERAL AND MULTILATERAL CONVENTIONS.CONVENTIONS.

• Bilateralism has changed from being Bilateralism has changed from being the rule to the exception.the rule to the exception.

• Globalisation leads to Globalisation leads to multilateralism.multilateralism.

• The market demands legal security The market demands legal security and judicial cooperation.and judicial cooperation.

MULTILATERAL AREASMULTILATERAL AREAS

• THE EU LEGAL AREATHE EU LEGAL AREA

• http://ec.europa.eu/justice_home/http://ec.europa.eu/justice_home/judicialatlascivil/html/index_en.htmjudicialatlascivil/html/index_en.htm

• THE HAGUE CONFERENCETHE HAGUE CONFERENCE

• www.hcch.netwww.hcch.net

• ORGANIZATION OF AMERICAN STATESORGANIZATION OF AMERICAN STATES

• http://www.oas.org/dil/http://www.oas.org/dil/treaties_signatories_ratifications_subject.httreaties_signatories_ratifications_subject.htm#Judicialm#Judicial

THE HAGUE CONFERENCE. THE HAGUE CONFERENCE. A WORLD ORGANISATIONA WORLD ORGANISATION• With 72 Members (71 States and the European With 72 Members (71 States and the European

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

BRIDGE BETWEEN LEGAL BRIDGE BETWEEN LEGAL SYSTEMSSYSTEMS• Personal, family or commercial situations which Personal, family or commercial situations which

are connected with more than one country are are connected with more than one country are commonplace in the modern world. These commonplace in the modern world. These situations can be affected by differences between situations can be affected by differences between the legal systems in force in these countries. the legal systems in force in these countries.

• With a view to resolving these differences, the With a view to resolving these differences, the States have adopted special rules collectively States have adopted special rules collectively known as “private international law“ rules. known as “private international law“ rules.

• The statutory mission of the Conference is to The statutory mission of the Conference is to work for the “progressive unification” of these work for the “progressive unification” of these rules. rules.

CENTENNIAL INTERNATIONAL CENTENNIAL INTERNATIONAL ORGANISATIONORGANISATION

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

FUNCTIONINGFUNCTIONING

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

FINANCINGFINANCING

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

HEADQUARTERS AND HEADQUARTERS AND SECRETARIATSECRETARIAT• The activities of the Conference are coordinated The activities of the Conference are coordinated

by a multinational Secretariat (the Permanent by a multinational Secretariat (the Permanent Bureau) located in The Hague. The Conferences Bureau) located in The Hague. The Conferences working languages are English and French. working languages are English and French.

• The Secretariat prepares the Plenary Sessions The Secretariat prepares the Plenary Sessions and Special Commissions and carries out the and Special Commissions and carries out the basic research required for any subject taken up basic research required for any subject taken up by the Conference. It also engages in various by the Conference. It also engages in various activities to support the effective implementation activities to support the effective implementation and operation of the Conventions. and operation of the Conventions.

SECRETARIAT CONT.SECRETARIAT CONT.

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

THE HAGUE CONVENTIONSTHE HAGUE CONVENTIONS

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

THE HAGUE CONVENTIONS THE HAGUE CONVENTIONS CONT.CONT.• Between 1951 and 2008, the Conference adopted Between 1951 and 2008, the Conference adopted

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

MOST WIDELY RATIFIED MOST WIDELY RATIFIED CONVENTIONSCONVENTIONS• The abolition of legalisation (Apostille) The abolition of legalisation (Apostille) • Service of process Service of process • Taking of evidence abroad Taking of evidence abroad • Access to justice Access to justice • International child abduction International child abduction • Intercountry adoption Intercountry adoption • Conflicts of laws relating to the form of Conflicts of laws relating to the form of

testamentary dispositions testamentary dispositions • Maintenance obligations Maintenance obligations • Recognition of divorces Recognition of divorces

MOST RECENT MOST RECENT CONVENTIONSCONVENTIONS• The most recent Conventions are the The most recent Conventions are the

Convention on the Law Applicable to Certain Convention on the Law Applicable to Certain Rights in respect of Securities held with an Rights in respect of Securities held with an IntermediaryIntermediary (2006), the  (2006), the Convention on Convention on Choice of Court AgreementsChoice of Court Agreements (2005),  (2005), the the Convention on the International Recovery Convention on the International Recovery of Child Support and Other Forms of Family of Child Support and Other Forms of Family MaintenanceMaintenance together with the  together with the Protocol on Protocol on the Law Applicable to Maintenance the Law Applicable to Maintenance ObligationsObligations (2007).  (2007).

PRIORITIES PRIORITIES

• Priority is given to Conventions Priority is given to Conventions about: about:

• Cross-border mediation in family Cross-border mediation in family matters.matters.

• Choice of law in international Choice of law in international contracts.contracts.

• Accessing the content of foreign law. Accessing the content of foreign law.

FUTURE CONVENTIONSFUTURE CONVENTIONS

• The following topics are on the agenda, without The following topics are on the agenda, without priority:priority:

• Questions of private international law raised by Questions of private international law raised by the information society, including the information society, including electronic electronic commercecommerce, conflict of jurisdiction, applicable law , conflict of jurisdiction, applicable law and international judicial and administrative and international judicial and administrative cooperation in respect of civil liability for cooperation in respect of civil liability for environmentalenvironmental damage; jurisdiction, recognition damage; jurisdiction, recognition and enforcement of decisions in maters of and enforcement of decisions in maters of succession upon death and questions of private succession upon death and questions of private international law relating to international law relating to unmarried couplesunmarried couples, , as well as assessment and analysis of as well as assessment and analysis of transnational legal issues relating to indirectly transnational legal issues relating to indirectly held securities and security interests. held securities and security interests.

PUBLICATIONSPUBLICATIONS

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

CONFERENCE WEBSITECONFERENCE WEBSITE

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

INTERNATIONAL CHILD ABDUCTION INTERNATIONAL CHILD ABDUCTION DATABASEDATABASE

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

EFFECTIVE ACCESS TO THE EFFECTIVE ACCESS TO THE HAGUE CONFERENCE WEBSITEHAGUE CONFERENCE WEBSITE

www.hcch.netwww.hcch.netChild abductionChild abductionhttp://www.hcch.net/index_en.php?http://www.hcch.net/index_en.php?

act=conventions.text&cid=24act=conventions.text&cid=24

Accessions and ratificationsAccessions and ratificationshttp://www.hcch.net/index_en.php?http://www.hcch.net/index_en.php?

act=conventions.status&cid=24act=conventions.status&cid=24

CONFLICT OF RULESCONFLICT OF RULES

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

CONFLICTCONFLICT OF RULES CONT. OF RULES CONT.

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

EU RELATIONSHIP WITH THE EU RELATIONSHIP WITH THE HAGUE CONFERENCEHAGUE CONFERENCE

Council Decision 2006/719/EC, of 5 October 2006, on the Council Decision 2006/719/EC, of 5 October 2006, on the accession of the Community to the Hague Conference on accession of the Community to the Hague Conference on Private International Law.Private International Law.

On 5 October 2006 the Council of the European Union On 5 October 2006 the Council of the European Union adopted a decision regarding the accession of the adopted a decision regarding the accession of the European Community to the Hague Conference on European Community to the Hague Conference on Private International Law (HCCH). The purpose of this Private International Law (HCCH). The purpose of this international intergovernmental organisation is to work international intergovernmental organisation is to work for the progressive unification of the rules on Private for the progressive unification of the rules on Private International Law in the participating countries. The International Law in the participating countries. The European Community has been a participant of the European Community has been a participant of the HCCH since 3 April 2007.HCCH since 3 April 2007.

RELATIONSHIPS CONT.RELATIONSHIPS CONT.

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

RELATIONSHIPS CONT.RELATIONSHIPS CONT.

These measures are These measures are designed to:designed to: improve and simplify the system for cross-border improve and simplify the system for cross-border

service of judicial and extra-judicial documents, service of judicial and extra-judicial documents, cooperation in the taking of evidence and the cooperation in the taking of evidence and the recognition and enforcement of decisions in civil and recognition and enforcement of decisions in civil and commercial cases, including decisions in extra-judicial commercial cases, including decisions in extra-judicial cases; cases;

promote the compatibility of the rules applicable in promote the compatibility of the rules applicable in Member States concerning the conflict of laws and Member States concerning the conflict of laws and jurisdiction; jurisdiction;

eliminate obstacles to the good functioning of civil eliminate obstacles to the good functioning of civil proceedings. proceedings.

RELATIONSHIPSRELATIONSHIPS CONT. CONT.

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

EXCEPTION TO EXCEPTION TO ACCESSIONACCESSION

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

CONCLUSIONSCONCLUSIONS

• 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.

CONCLUSIONSCONCLUSIONS CONT. 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.