The Elgar Companion to the Hague Conference on Private International Law


The Elgar Companion to the Hague Conference on Private International Law

9781788976497 Edward Elgar Publishing
Edited by Thomas John, MCIArb, Independent Mediator, Arbitrator and Legal Consultant, the Netherlands, Rishi Gulati, Associate Professor in International Law, University of East Anglia, UK and Barrister, Victorian Bar, Australia and Ben Köhler, Senior Research Fellow, Max Planck Institute for Comparative and International Private Law, Germany
Publication Date: 2020 ISBN: 978 1 78897 649 7 Extent: 544 pp
This comprehensive Companion is a unique guide to the Hague Conference on Private International Law (HCCH). Written by international experts who have all directly or indirectly contributed to the work of the HCCH, this Companion is a critical assessment of, and reflection on, past and possible future contributions of the HCCH to the further development and unification of private international law.

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This comprehensive Companion is a unique guide to the Hague Conference on Private International Law (HCCH), an intergovernmental organisation dedicated to developing multilateral legal instruments pertaining to personal, family and commercial legal situations that cross national borders. The Companion is a critical assessment of, and reflection on, past and possible future contributions of the HCCH to the further development and unification of private international law.

Written by international experts who have all directly or indirectly contributed to the work of the HCCH, chapters analyse its structure and working methods, as well as explore its significant achievements in the areas of international family law, civil procedure, legal co-operation, commercial and finance law. The contributors also discuss the many challenges both the HCCH and other global organisations are facing, including the advent of regionalism and renewed nationalism.

Scholars and students of private international law, as well as private legal practitioners and members of the judiciary, will find this book to be crucial reading. Those working at other international organisations such as NGOs, banks and businesses will also find its insights into the workings of a successful international organisation beneficial.
Critical Acclaim
‘In this book there are 35 contributions from foremost experts around the world. They deal with the history of the HCCH, its role in an increasingly globalised world, and its role in the future. Especially valuable is the critical analysis of the existing HCCH instruments. [...] All scholars in this field will need to take notice of this comprehensive work, and practitioners in ever-increasing international litigation will find much that is of great practical importance.’
– extracted from the Foreword by Lord Collins of Mapesbury, LLD, FBA, former Justice, UK Supreme Court

‘The Hague Conference is the symbol of efforts to coordinate divergent legal orders in the interest of individuals, families and undertakings. Various such efforts have been successful, producing instruments of worldwide effectiveness, others have failed; all of them contributed to a common ground for legal scholarship in private international law. The rich experience of more than a century is collected in this valuable book. Its 35 chapters address general institutional aspects of the Hague Conference, its increasing effects in continents outside Europe and a great number of specific issues covering the whole range of international commercial transactions, family relations and procedural co-operation. The editors and authors, well-known experts in their respective fields, have successfully compiled a volume that will be an indispensable guide to its subject for many years.’
– Jürgen Basedow, Max Planck Institute for Comparative and International Private Law, Germany

‘This Companion is a reflection of and tribute to the work of the Hague Conference on Private International Law over its 125 year history. The thirty-five chapters in the book consist of contributions by leading private international law experts – academics, practitioners, and judges – from across the globe. These chapters trace the development of the organization from its inception, review the various instruments produced by the HCCH, and discuss more generally substantive developments in private international law from a comparative perspective. The range of the Companion – like that of the Hague Conference itself – is comprehensive and covers issues of commercial law, family law, civil procedure, and judicial co-operation. Together the chapters underscore important themes that have been crucial to the HCCH: access to justice, the role of soft law, multilateralism, and the relationship between public and private international law. There is no work like it that I know of, and anyone who works in this field needs to have a copy and to read it cover to cover.’
– Linda J. Silberman, New York University School of Law, US

‘Elgar grants us this Companion to the HCCH, a gift to facilitate the understanding of its history and work, as well as showing a path to the future of private international law. Cleverly gathering contributions from renowned experts on relevant issues, Elgar’s Companion is not limited to a picture of a moment, but sets foot on solid bases to push further, revealing the cutting-edge issues that defy the idea of sovereignty nowadays.

Sovereignty: the abstract power vested in the Nation States. That is what substantiates private international law ideas and actions. The monopoly to compel people to do or not to do something is kept to the almighty State, without the possibility of any dispute. For three centuries, this abstract idea served the development of Nation States organized under the rule of law rather than under the rule of a person. It needed some adjustment, however, when those Nation States departed from their inward absolute power to realise the existence of other similar institutions vested with similar power within their own territorial and political scope.

Those ideas face real life when one assesses people’s day-to-day relationships and actions. They go to other countries (other Nation States) to buy food, to work, to entertain, to reach health services. People enter into business agreements abroad seeking profit or move to a different country to settle a new family or find a job, challenging the imaginary lines called borders and the abstract wall separating law systems. What would the power of the almighty Nation State do to those endeavouring to leave homeland safety?

Concerns for juridical safety, a general understanding of human rights protection, respect for genuine situations that blur the abstract construction of the Nation State’s sovereign power, together with the comity between States, all lead to the need to review some of the precise, logical national solutions.

The challenge faced by private international law and the HCCH is to open a window onto other Nation States’ law, be it through the exercise of jurisdiction over internationally connected cases, applying foreign law, co-operating in recognition of foreign judgments or documents, or by conducting relevant acts in favour of foreign authorities. From Tobias Asser’s leadership in 1893, the institution developed into an international intergovernmental organization in 1951 and onwards, growing in diversity of membership by the same Nation States that hold seemingly conflicting sovereign power.

This is the beauty of the HCCH’s work. It derives its mandate from the Nation States and has the objective of finding co-operation amongst them, the institutions that hold the autonomous, independent, and discriminatory power to elide foreign juridical solutions. HCCH furthers this work with delicate steps, exploring the will and interest of members to open their shells of power to the number of cases where consideration of a foreign juridical solution is elementary to resolving a particular situation. Elgar’s Companion to the HCCH grants us the knowledge to understand the past, present and future of private international law, as regarded from a universal viewpoint.’
– Marcelo De Nardi, Judge of the Federal Court of First Degree, Rio Grande do Sul, Brazil and Brazilian Delegate to the HCCH

‘Edward Elgar’s latest contribution to the field of private international law appropriately focuses on the sole intergovernmental organization dealing exclusively with issues in this area. Since 1955, the Hague Conference on Private International Law has developed into a truly global organization, with 45% of its membership joining since the turn of the century. Nevertheless, there remains scope for improvement of participation by countries in Africa and the Middle East. The contributions deal with the full range of Hague instruments; nonetheless, certain concepts surface continuously, including access to justice, cross-border legal co-operation, international human rights law, party autonomy and technological developments. Editors John, Gulati and Köhler should be congratulated on their initiative and the resultant substantial and valuable contribution to the available literature on the Hague Conference.’
– Jan L. Neels, University of Johannesburg, South Africa

‘COVID-19 has indelibly changed our daily lives and one might ask, in our seemingly brave new world, does the Hague Conference remain relevant? The answer is a resounding “yes” and this book shows why. Its chapters speak about what the Hague Conference has been (and is) doing well. They explain how the flexibility of key conventions has enabled them to stand the test of time and address a range of contemporary problems, from legal co-operation and civil procedure to the protection of the child and the complexities of commerce. But the chapters have not been written as eulogies. They repeatedly pose critical questions. They identify glaring weaknesses. They suggest how conventions can be improved for the decades to come. They propose new instruments to respond to our present exigencies.

In the new normal of lockdowns, social distancing, face masks, remote working, trade wars, and worldwide protests against systematic inequality and discrimination, it may be challenging to attain the Hague Conference’s objective of bringing the world closer through a progressive unification of the rules of private international law. That does not make the objective any less urgent. By itself this book will not change the world. That is not its function. It is instead meant to be a “companion”, a guide to take with us along our common journey to building a better world. For this reason, I heartily recommend it.’
– Anselmo Reyes, Doshisha University, Kyoto, Japan
Contributors: M.M. Albornoz, R.A. Brand, D. Bryant, W. Brydie-Watson, A. Chong, S. Choudhary, N. de Araujo, G. den Dekker, R. Frimston, F.J. Garcimartín Alférez, S.R. Garimella, R. Garnett, N. Gonzalez-Martin, A. Grebelsky, R. Gulati, F. Heindler, B. Hess, T. John, B. Köhler, M. Kucinski, C.L. Marques, J.A. Moreno Rodríguez, G. Morton, H. Muir Watt, Y. Nishitani, I. Obi, P.N. Okoli, R.F. Oppong, L. Rass-Masson, V. Richard, N. Rubaja, G. Rühl, S. Sánchez Fernández, P. Santucci, P. Sooksripaisarnkit, T.C. Squeff, D.J.B. Svantesson, G. van Calster, P. Vlas, J. von Hein, C. Ward, P. Wautelet, P. Webb, P. Zablud

Foreword I xxi
Christophe Bernasconi
Foreword II xxiv
Lord Collins
Editors’ introduction to the Elgar companion to the HCCH xxv

1 The Netherlands Standing Government Committee on Private
International Law 3
Paul Vlas
2 The HCCH and functional immunity: on origins, scope, and access to court 11
Guido den Dekker
3 The three sisters of private international law: an increasingly
co-operative family rather than sibling rivals 23
William Brydie-Watson

4 The HCCH’s development in Latin America and the Caribbean 42
Nuria Gonzalez-Martin
5 The HCCH’s development in Africa 52
Richard Frimpong Oppong and Pontian N. Okoli
6 The HCCH’s development in the Asia-Pacific region 61
Yuko Nishitani

7 The work of the HCCH and the path of the law: the politics of
difference in unified private international law 79
Horatia Muir Watt
8 The role of the HCCH in shaping private international law 112
Jan von Hein
9 Regulatory competition and the 2015 Choice of Law Principles 128
Giesela Rühl
10 The HCCH and legal co-operation – shaping the fourth dimension of
private international law 150
Lukas Rass-Masson
11 The effect of ‘ordre public’ and mandatory forum law on the work of
the HCCH: reflections from the Australian common law 160
Christopher Ward and Philip Santucci

12 The HCCH and its Conventions relating to marriages 173
Patrick Wautelet
13 The 1980 Child Abduction Convention – the status quo and future challenges 183
Diana Bryant
14 The 1993 Intercountry Adoption Convention: from ‘gift child’ to safer
adoptions 198
Sai Ramani Garimella and Shivika Choudhary
15 International family law and child protection in Latin America:
achievements and shortcomings, challenges posed by the 1996 Child
Protection Convention 214
Nieve Rubaja
16 The 2000 Adult Protection Convention – sleeping beauty or too
complex to implement? 226
Richard Frimston
17 The HCCH and maintenance obligations 236
Nadia de Araujo
18 Mediation in international children’s cases 249
Melissa Kucinski
19 Child protection in private international law – a HCCH success story? 259
Yuko Nishitani

20 The 1961 Apostille Convention – authenticating documents for
international use 277
Peter Zablud
21 The 1965 Service and 1970 Evidence Conventions as crucial bridges
between legal traditions? 288
Vincent Richard and Burkhard Hess
22 The 2005 Choice of Court Convention – the triumph of party autonomy 298
Ronald A. Brand
23 The Judgments Project: fulfilling Asser’s dream of free-flowing judgments 309
Richard Garnett

24 Bridging the common law–civil law divide? The 1985 Trusts Convention 323
Adeline Chong
25 The 2006 Securities Convention: background, purpose and future 336
Guy Morton
26 Advocating party autonomy in private international law – the 2015
Choice of Law Principles 349
José Antonio Moreno Rodríguez

27 Parentage and international surrogacy – common solutions for
a contentious issue? 361
María Mercedes Albornoz
28 Global governance and co-operation on tourist-consumer matters:
arguments in favour of a legal instrument to protect international
tourists at the HCCH 373
Claudia Lima Marques and Tatiana Cardoso Squeff
29 Forum non conveniens: a comparative perspective 390
Philippa Webb

30 Is private international law tech-proof? Conflict of laws and FinTech:
selected issues 406
Francisco J. Garcimartín Alférez and Sara Sánchez Fernández
31 Private international law and international commercial arbitration –
a role for the HCCH? 416
Alexander Grebelsky
32 The digitisation of legal co-operation – reshaping the fourth dimension
of private international law 428
Florian Heindler
33 Complex contractual relationships – is there a need for special private
international law rules on contractual chains and networks? 439
Poomintr Sooksripaisarnkit and Ifeoma Obi
34 The (uneasy) relationship between the HCCH and information technology 449
Dan Jerker B. Svantesson
35 Of giggers and digital nomads – what role for the HCCH in developing
a regulatory regime for highly mobile international employees 464
Geert van Calster
Glossary to the Elgar companion to the HCCH 479

Index 485
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