The Hague Conference on Private International Law (HCCH) 8 May 2014 Christophe Bernasconi Secretary General Hague Conference on Private International Law
Why HCCH…? Slide 2
The Hague Conference on Private International Law La Conférence de La Haye de droit international privé Slide 3
The Hague Conference on Private International Law La Conférence de La Haye de droit international privé (HC + CH = HCCH) Slide 4
What is the HCCH? ◦ An intergovernmental organisation the origin of which goes back to 1893 ◦ The oldest international organisation in The Hague, the “international city of 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” Slide 5
What does the HCCH do? ◦ The purpose of HCCH is to “work for the progressive unification of the rules of private international law ” ◦ The work of HCCH addresses Cross-border family relation private law problems arising among individuals or companies Cross-border business deal in situations connected with Cross-border more than one State legal procedure JURISDICTION APPLICABLE LAW RECOGNITION & LEGAL ENFORCEMENT CO-OPERATION Slide 6
How does the HCCH do it? ◦ 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 of 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 Slide 7
Post-Convention services ◦ The Hague Conference has been a pioneer in developing methods to support the continued operation of its Conventions PROMOTION IMPLEMENTATION MONITORING AND REVIEW OF PRACTICAL OPERATION Slide 8
HCCH Members 76 Members (75 States and the European Union) Member State Admitted State Candidate State Slide 9
HCCH Members 76 Members (75 States and the European Union) BUT… Slide 10
Connected States 144 States are “connected” to the HCCH Non-Member State that is a Member of the Hague Contracting State or signatory to at least one Hague Convention or State Conference in the process of becoming a Member Slide 11
Regional presence Permanent Bureau in The Hague Asia Pacific Regional Office in Hong Kong (opened in December 2012) Latin America Regional Office in Buenos Aires (commenced operations in 2005) Slide 12
Giving effect to Human Rights ◦ 1989 UN Convention on the Rights of the Child Article 9 UNCRC Child Abduction & Child Children whose parents do not live together have the right to stay in Protection Conventions contact with both parents, except where contrary to the child’s best interests Article 11 UNCRC Child Abduction States Parties shall take measures to combat the illicit transfer and non-return of children abroad (promotes conclusion of bilateral or Convention multilateral agreements or accession to existing agreements) Article 21 UNCRC For adoption, the best interests of the child shall be the paramount Adoption Convention 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 Child Support Convention recovery of maintenance for the child (promotes accession to international instruments or the conclusion of such agreements) Article 35 UNCRC Child Abduction & States Parties shall prevent abduction of, sale of, or traffic in children (requiring all appropriate national, bilateral and multilateral measures Adoption Conventions to be taken) Slide 13
Ongoing legislative work ◦ 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 Slide 14
The HCCH and the 1980 Convention on the Civil Aspects of International Child Abduction Slide 15
92 Contracting States New Contracting States in 2014: Japan & Iraq Slide 16
Continuous growth in the number of Contracting States Slide 17
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! Slide 18
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 In ternational C hild A bduction Dat abase Slide 19
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 order the return of the child (15% in 2008) 35% 1999 32% 2003 29% 30% 2008 27% 25% 22% 19% 20% 18% 18% 15% 15% 14% 15% 13% 11% 10% 5% 0% Voluntary return Judicial return Judicial refusal Withdrawn Slide 20
Statistics (2008) Timing ◦ Longer time periods to process applications ◦ Voluntary returns are fastest process The mean number of days taken to reach a final conclusion Slide 21
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 Slide 22
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) • Slide 23
Concentration of jurisdiction 43 Contracting States with concentrated jurisdiction Slide 24
Judicial networking and communication International Hague Network of Judges 60 States and 91 Judges Slide 25
Mediation in the context of the 1980 Convention ◦ The Convention encourages the amicable resolution of 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 obtained through mediation Slide 26
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 Slide 27
Thank you for your attention Christophe Bernasconi Secretary General cb@hcch.nl www.hcch.net
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