The Hague Conference on Private International Law (HCCH)

Transcription

1 The Hague Conference on Private International Law (HCCH) 8 May 2014 Christophe Bernasconi Secretary General Hague Conference on Private International Law

2 Why HCCH? Slide 2

3 The Hague Conference on Private International Law La Conférence de La Haye de droit international privé Slide 3

4 The Hague Conference on Private International Law La Conférence de La Haye de droit international privé (HC + CH = HCCH) Slide 4

5 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

6 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 private law problems arising among individuals or companies in situations connected with more than one State Cross-border family relation Cross-border business deal Cross-border legal procedure JURISDICTION RECOGNITION & ENFORCEMENT APPLICABLE LAW LEGAL CO-OPERATION Slide 6

7 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

8 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

9 HCCH Members 76 Members (75 States and the European Union) Admitted State Member State Candidate State Slide 9

10 HCCH Members 76 Members (75 States and the European Union) BUT Slide 10

11 Connected States 144 States are connected to the HCCH 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 Slide 11

12 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

13 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 Support Convention Child Abduction & Adoption Conventions Slide 13

14 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

15 The HCCH and the 1980 Convention on the Civil Aspects of International Child Abduction Slide 15

16 92 Contracting States New Contracting States in 2014: Japan & Iraq Slide 16

17 Continuous growth in the number of Contracting States Slide 17

18 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

19 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 Slide 19

20 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% 30% 32% 29% 27% % 22% 20% 18% 19% 18% 15% 11% 13% 15% 14% 15% 10% 5% 0% Voluntary return Judicial return Judicial refusal Withdrawn Slide 20

21 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

22 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 voluntary returns, 2 judicial return orders, no judicial refusal Germany Statistics voluntary returns, 15 judicial return orders, 6 judicial refusals Slide 22

23 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

24 Concentration of jurisdiction 43 Contracting States with concentrated jurisdiction Slide 24

25 Judicial networking and communication International Hague Network of Judges 60 States and 91 Judges Slide 25

26 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

27 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

28 Thank you for your attention Christophe Bernasconi Secretary General