Hostname: page-component-cd9895bd7-fscjk Total loading time: 0 Render date: 2024-12-26T06:44:21.420Z Has data issue: false hasContentIssue false
  • English
  • Français

Legal Diversity in a Flat, Crowded World: The Role of the Hague Conference

Published online by Cambridge University Press:  28 February 2019

Hans van Loon
Get access Rights & Permissions [Opens in a new window]

Extract

In the beginning of this month we commemorated the collapse of the Berlin Wall. The 9th of November 1989 not only marked the end of the Cold War but also the opening up of the possibility of joining global, and regional, economic activities and institutions for millions of people east of the wall - and indeed elsewhere in the world, from India to Latin America. This has levelled the global economic playing field. It has “flattened” our world. For some, this marked the beginning of the globalization process. But our world has become “horizontal” in a more fundamental sense and over a longer period of time. Human relationships are now far more than in the past determined by horizontal connections with like-minded others across borders, including virtual connections through cyberspace and mass-media, and much less by vertical lines of authority within a closed society.

Type
Articles
Information
International Journal of Legal Information , Volume 39 , Issue 2 , Summer 2011 , pp. 172 - 185
Copyright
Copyright © 2011 by The Institute for International Legal Information 

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1 Cf. Friedman, Th. L., The World Is Flat (2005); while the leveling of the economic playing field has ushered in a new phase of globalization it should be remembered, as Friedman recognizes that it has not yet reached hundreds of millions of people in certain parts of the world They are particularly vulnerable to the challenges of population growth and climate change, cf. idem, Hot, Flat and Crowded (2008).Google Scholar

2 See Friedman, L.M., The Horizontal Society (1999), and cf. the contribution by J. Basedow “Multiculturalism, Globalization and the Law of the Open Society”, (in particular par.2).Google Scholar

3 See United Nations Department of Economic and Social Affairs, World Population Prospects: the 2008 Revision. www.un.org/esa/population/publications/wpp2008/wpp2008_highlights.pdf Google Scholar

4 In the Stockholm Program 17024/09, Annex (p.63). adopted on 2 December 2009, the Council of the European Union (Justice and Home Affairs) requested the Commission to present an analysis of the effects of climate change on international migration, “including its potential effects on immigration to the European Union”, see www.se2009.eu/polopoly_fs/1.26419!menu/standard/file/Klar_Stockholmsprogram.pdf.Google Scholar

5 Cf. Hunt v. T&N plc, [1993] 4 S.C.R.289, infra footnote 23.Google Scholar

6 See Droz, G.A.L., « Évolution du rôle des autorités administratives dans les Conventions de droit international privé au cours du premier siècle de la Conférence de La Haye », in Études offertes à Pierre Bellet (1991), pp. 129–147.Google Scholar

7 Prime examples of direct judicial cooperation across borders are to be found in the areas of insolvency (cf. the UNCITRAL Model Law on Cross-Border Insolvency, see http://www.uncitral.org/-uncitral/en/uncitral_texts/insolvency/l997Model.html) and child protection, (see for the work of the Hague Conference on judicial communications and the emerging Hague global network of judges. http://www.hcch.net/index_en.php?act=text.display&tid=21).Google Scholar

8 Cf. Some reflections on the utility of applying certain techniques for international cooperation developed by the Hague Conference on Private International Law to issues of international migration, Note drawn up by the Permanent Bureau of the Hague Conference in 2006. with updates published 2007-2009, see most recently http://www.hcch.net/upload/wop/genaff2009pd08e.pdf. See also H. van Loon. « Vers un nouveau modèle de gouvernance multilatérale de la migration internationale, in Vers de nouveaux équilibres entre ordres juridiques », in Vers de nouveaux équilibres entre ordres juridiques. Liber Amico rum Hélène Gaudemet-Tallon (2008), pp. 419–434.Google Scholar

9 As is well known, these efforts were preceded by the successful multilateral negotiations on the unification of private international law undertaken in Latin America, in particular the Treaty of Lima (1878) and the Treaties of Montevideo (1889), see D.P. Fernández Arroyo, La Codificacion del Derecho Internacional Privado en America Latina (1994).Google Scholar

10 The Convention of 12 June 1902 relating to the settlement of the conflict of the laws concerning marriage strictly limited the grounds upon which a Contracting State could refuse to celebrate a marriage of foreigners and permitted the celebration of a marriage of foreigners despite the marriage prohibitions of the designated law only “lorsque ces prohibitions sont exclusivement fondées sur des motifs d'ordre religieux” (Articles 2 and 3). See Wiarda, J., “Nederlands international personen- en familierecht en de openbare orde,” in 't Exempel dwinght, Liber Amicorum I. Kisch (1975), pp. 389–408, with several arguments contra these (Dutch) court decisions.Google Scholar

11 See e.g. Article 12 of the European Convention of 4 November 1950 on Human Rights and Fundamental Freedoms: “Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.”, to be read in conjunction with Article 14: “The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, color, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status”.Google Scholar

12 See e.g. Convention of 15 June 1955 on the law applicable to international sales of goods, Article 6 « Dans chacun des Etats contractants, l'application de la loi déterminée peut ětre écarté pour un motif d'ordre public ».Google Scholar

13 A deliberate choice was made out of five options, see « Rapport de la Commission Spéciale », by De Winter, L.I., in Documents relatifs à la Huitième Session de la Conférence de La Haye, 3-24 octobre 1956 (1957), pp. 124–133 (at p. 130).Google Scholar

14 See overview at www.hcch.net under HCCH Members.Google Scholar

15 The participation of large countries of immigration has significantly reinforced the role of habitual residence as a connecting factor both to determine adjudicatory jurisdiction and applicable law in the post-1951 Hague Conventions. As a result, it may be said that modern Hague Conventions favor assimilation more than the Conventions drawn up in the beginning of the 20th century. However, this is balanced to a certain extent by the introduction in many modern Hague Conventions of the option of party autonomy, and by a continuing but reduced role of the nationality factor. Cf. J. Basedow (supra, fn.2, in particular par.5).Google Scholar

16 See McClean, D., “Common lawyers and The Hague Conference”, in E Pluribus Unum, Liber Amicorum Georges A.L. Droz (1996), pp. 205–218, who points out that the reservation permitted by Article 23 of the Hague Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters (hereinafter: the Hague Evidence Convention), included at the request of the United Kingdom reflects “a misunderstanding as to the radically differing nature of “discovery” as between England and the United States” (at p. 216).Google Scholar

17 It will be seen (infra, par.3). that this is a true dialogue, to be distinguished from the quasi-dialogue criticized by Vrellis, S. in his contribution “La loi et la culture” (ch. II in fine).Google Scholar

18 See Actes de la Huitième Session de la Conférence de La Haye, 3-24 octobre 1956 (1957), Quatrième Commission, Procès-verbal No 7, pp. 267–269, and p.273. See also the Decision taken by the IXth Session, Final Act, under V, in Actes et Documents de la Neuvième Session de la Conférence de La Haye, 5-26 octobre 1960, Tome $1 (Matières diverses), (1961), pp.314.-315, and the study, comments and discussion on the elaboration of Conventions or Model Laws, ibidem, pp.207-250. The question came up again, under a slightly different angle, in the context of the XlVth Session, see Actes et Documents de la Quatorzième Session, 6-25 octobre 1980, Tome $1 (Matières diverses, (1982), pp. I-63, I-191, and I-200-201.Google Scholar

19 See http://www.hcch.net/index_en.php?act=states.details&sid=76.Google Scholar

20 See also the remarks on “categories of conflicts” by Symeon Symeonides in his contribution “American Federalism, Plurijuralism and Private International Law”.Google Scholar

21 In terms both of adopting legislative measures to ensure uniform interpretation and application, and of establishing effective cooperation between Central administrative and judicial authorities, crucial for the operation of the Hague Conventions in the field of legal cooperation and child protection.Google Scholar

22 See van Loon, H. and Schulz, A., “The European Community and the Hague Conference on Private International Law”, in Martenczuk, B. and van Thiel, S., eds. Justice, Liberty, Security (2008), pp. 257–299.Google Scholar

23 See Hunt v. T&N plc, [1993] 4 S.C.R.289 (Judgment of the Court delivered by La Forest J.): “Legal systems and rules are a reflection and expression of the fundamental values of a society, so to respect diversity of societies it is important to respect differences in legal systems… Developing such coordination in the face of diversity is a common function of both public and private international law. It is also one of the major objectives of the division of powers among federal and provincial governments in a federation. This appeal raises issues that lie at the confluence of private international law and constitutional law. In seeking to find a workable balance between diversity and uniformity, one must be aware of the similarities but also the differences that exist in the balances represented in the rules in these two areas of law…”.Google Scholar

24 Koh, H.H., Transnational Litigation in United States Courts (2008), pp 247-258.Google Scholar

25 The European Community became a Member of the Hague Conference on 3 April 2007. With the entry into force of the Treaty of Lisbon on 1 December 2009, the European Union replaces and succeeds the European Community as from that date. See also “The European Community and the Hague Conference on Private International Law”, supra fn. 22.Google Scholar

26 On the question of determining the appropriate level of regulating private international law issues against the backdrop of globalization, see van Loon, H., “Remarks on the needs and methods for governance in the field of private international law - at the global and the regional levels”, in Cafaggi, F., Muir-Watt, H., eds., Making European Private Law – Governance Design, (2008), pp. 197–208.Google Scholar

27 Two recent EU Council regulations establish procedures Member States for the negotiation and conclusion of agreements with third countries in the areas of Jurisdiction, recognition and enforcement of judgments and decisions in matrimonial matters, parental responsibility and maintenance obligations (see Council Regulation (EC) No 664/2009, at http://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri-=OJ:L:2009:200:0046:0051:EN:PDF) and in the area of applicable law in contractual and non-contractual obligations (see EC Regulation No 662/2009 at http://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2009:200:0025:0030:EN:PDF).Google Scholar

28 See http://www.hcch.net/index_en.php?act=text.display&tid=49.Google Scholar

29 On the more general question of the role of private international law (including Hague Conventions on private international law) with regard to the “conflict of civilizations” (which may also arise within State borders), see Basedow, J. (supra fn. 2) and cf. also fn. 15 supra.Google Scholar

30 See also the Introduction to the contribution of Najm, M-C., “Dévolution successorale et système multicommunautaire – L'exemple libanais”.Google Scholar

31 The first Hague Convention to make provision for legal systems applying different laws to different categories of persons. See Articles 15 and 16, and the Explanatory Report by Bellet, P. and B. Goldman, in Actes et Documents de la Onzième Session, 7-26 October 1968, Tome II Divorce (1970), pp. 210–223 (at p. 222).Google Scholar

32 See Article 1, paragraph 1; see also Bellet/Goldman, ibid., p.212.Google Scholar

33 Australia, China (Hong Kong), Cyprus, Czech Republic, Denmark, Estonia, Finland, Italy, Luxembourg, Netherlands, Norway, Poland, Portugal, Slovakia, Sweden, Switzerland and the United Kingdom of Great Britain and Northern Ireland.Google Scholar

34 See Articles 3, subparagraph e), and 33; see also the Explanatory Report by Lagarde, P., Proceedings of the Eighteenth Session, 30 September-19 October 1996, Tome II Protection of Children, (1998) pp. 533–605 (at pp. 546/547 and 592/593, see also pp. 230-231).Google Scholar

35 See Explanatory Report by Goode, R., Kanda, H., Kreuzer, K., Proceedings of the Nineteenth Session 2-13 December 2002, Tome II Securities, (2006), pp 576-741 (at pp. 606/607).Google Scholar

36 Cf. the contribution by K. Kreuzer “Clash of Civilizations and Conflict of Laws” to this colloquium.Google Scholar

37 See Prel. Doc. No 7, of August 2002, drawn up by Harnois, C. for the Permanent Bureau, “Child Abduction and Transfrontier Access: Bilateral Conventions and Islamic States - a Research Paper”, at http://www.hcch.net/index_en.php?act=publications.details&pid=2255&dtid=2.Google Scholar

38 See the declarations of the First, Second and Third Malta Judicial Conference on Cross-Frontier Family Law Issues, hosted by the Government of Malta in collaboration with the Hague Conference on Private International Law St. Julian's (Malta), 14-17 March 2004, 19-22 March 2006, and 24-26 March 2009. at http://www.hcch.net/upload/maltadecl_e.pdf; http://www.hcch.net/upload/maltadecl2_e.pdf; and http://www.hcch.net/index_en?act=events.details&year=2009&varevent= 161.Google Scholar

39 See Council Decision 2008/431/EC of 5 June 2008 authorising certain Member States to ratify, or accede to, in the interests of the European Community, the 1996 Hague Convention on Jurisdiction. Applicable Law, Recognition. Enforcement and Cooperation in respect of Parental Responsibility and Measures for the Protection of Children and authorising certain Member States to make a declaration on the application of the relevant internal rules of Community law [Official Journal L 151 of 11.6.2008]. This Decision authorises Member States that have not yet ratified or acceded to the Convention to do so. This concerns Belgium, Germany, Ireland, Greece. Spain. France, Italy, Cyprus, Luxembourg. Malta, the Netherlands, Austria, Poland, Portugal, Romania, Finland, Sweden and the United Kingdom.Google Scholar

40 See Article 8. paragraph 2 of the Statute as amended: “The Sessions, Council and Special Commissions shall, to the furthest extent possible. operate on the basis of consensus.”Google Scholar

41 See Duncan, W., “The New Hague Child Support Conventions: Goals and Outcomes of the Negotiations”, in 43 Family Law Quarterly, No 1 (2009), pp. 1–20.Google Scholar

42 See Article 27, paragraph 4: “States Parties shall take all appropriate measures to secure the recovery of maintenance for the child from the parents or other persons having financial responsibility for the child, both within the State Party and from abroad. In particular, where the person having financial responsibility for the child lives in a State different from that of the child. States Parties shall promote the accession to international agreements or the conclusion of such agreements, as well as the making of other appropriate arrangements.” Google Scholar

43 The image of the two dimensions of the global legal ordering effectuated by private international law, the “horizontal dimension” of regulating overlapping and competing legal cultures, and the “vertical dimension” of international rights as part of the formulation and application of private international law rules is a major theme in A. Mills, The Confluence of Public and Private International Law (2009).Google Scholar

44 Convention of 29 May 1993 on Protection of Children and Cooperation in Respect of Intercountry AdoptionGoogle Scholar

45 See Articles 11 and 35, on international child abduction; Articles 9, 10, 12, 18, 20, 22, among others, on the international legal protection of children; and Articles 20 and 21 on international adoptions.Google Scholar

46 Cf. e.g. Covenant, Articles 14 (on access to justice) and 17 (on respect for family life), 23 (on marriage and divorce) and 24 (on protection of children), and the Hague Conventions on the Recognition of the Validity of Marriage, on Divorce, and on Children.Google Scholar

47 See Beaumont, P., “The Jurisprudence of the European Court of Human Rights and the European Court of Justice on the Hague Convention on International Child Abduction”, in Hague Academy Recueil des cours, 335 (2008).Google Scholar

48 See also, generally, Mills, A., op. cit (supra, fn 43).Google Scholar