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Paul Herrup & Ron Brand on the Hague Conference Approach to Parallel Proceedings
The Hague Conference on Private International Law has engaged in a series of projects that, if successful, could provide the framework for critical aspects of trans-national litigation in the Twenty-first Century. Thus far, the work has resulted in the 2005 Hague Convention on Choice of Court Agreements and the 2019 Hague Convention on the Recognition and Enforcement of Judgments in Civil or Commercial Matters. Work now has begun to examine the need, desirability and feasibility of additional instruments in the area, with discussions of an instrument that would either require or prohibit the exercise of jurisdiction by national courts, and of an instrument that would channel parallel proceedings to a “better’ forum.
The authors of this brief article advance the view that a convention regulating jurisdiction is not a good approach, but that an instrument finding a “better” forum in parallel proceedings, constructed on an open-minded and non-dogmatic basis, is needed, desirable, and feasible.
The piece is located here.
HCCH Monthly Update: July 2021
Membership
On 1 July 2021, Mongolia deposited its instrument of acceptance of the Statute, becoming the 89th Member of the HCCH. More information is available here.
Conventions & Instruments
On 3 July 2021, the HCCH 1961 Apostille Convention entered into force for Jamaica. It currently has 120 Contracting Parties. More information is available here.
On 30 July 2021, the HCCH 1970 Evidence Convention entered into force for Georgia. It currently has 64 Contracting Parties. More information is available here.
Meetings & Events
From 5 to 9 July 2021, the Experts’ Group on Parentage/Surrogacy met for the ninth time, via videoconference. The Group discussed the scope of the possible draft Convention on legal parentage and the scope of the possible draft Protocol on legal parentage established as a result of an (international) surrogacy arrangement. More information is available here.
On 27 July 2021, the Permanent Bureau announced that Edition 2021 of HCCH a|Bridged will be dedicated to the HCCH 2005 Choice of Court Convention and held online on 1 December 2021. More information is available here.
On 28 July 2021, the Permanent Bureau launched the Advancing and Promoting the Protection of All Children (Approach) Initiative, in celebration of the 25th anniversary of the HCCH 1996 Child Protection Convention. As part of this initiative, the Permanent Bureau is organising two competitions: the HCCH|Approach Essay Competition and the HCCH|Approach Media and Design Competition. Submissions are due on 1 October 2021. More information is available here.
Publications & Documentation
On 2 July 2021, the Permanent Bureau announced the publication of translations, in Albanian, Macedonian, and Bosnian-Serbian-Montenegrin languages, of the Explanatory Report on the HCCH 2019 Judgments Convention. These are the first available translations after the official publication of the Explanatory Report in October 2020. They were supported by the Deutsche Gesellschaft für Internationale Zusammenarbeit (GIZ), Open Regional Fund for South East Europe – Legal Reform (ORF – Legal Reform). More information is available here.
These monthly updates are published by the Permanent Bureau of the Hague Conference on Private International Law (HCCH), providing an overview of the latest developments. More information and materials are available on the HCCH website.
Protocol No. 15 amending the Convention for the Protection of Human Rights and Fundamental Freedoms has entered into force – beware: the time for filing an application has been shortened from 6 to 4 months
Today (1 August 2021) the Protocol No. 15 amending the Convention for the Protection of Human Rights and Fundamental Freedoms has entered into force. This Protocol will apply in all 47 States Parties. Although it was open for signature/ratification since 2013, the ratification of Italy only occurred until 21 April 2021.
In the past, we have highlighted in this blog the increasing interaction between human rights and private international law and the need to interpret them harmoniously (see for example our previous posts here (HCCH Child Abduction Convention) and here (transnational surrogacy)).
Protocol No. 15 has introduced important amendments to the text of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). In particular, it has included the principle of subsidiarity and the doctrine of the margin of appreciation in the preamble, which have long and consistently been adopted by the case law of the European Court of Human Rights (ECtHR), and thus this is a welcome amendment.
It will now read as follows (art. 1 of the Protocol):
“Affirming that the High Contracting Parties, in accordance with the principle of subsidiarity, have the primary responsibility to secure the rights and freedoms defined in this Convention and the Protocols thereto, and that in doing so they enjoy a margin of appreciation, subject to the supervisory jurisdiction of the European Court of Human Rights established by this Convention”.
Of great important is the shortening of the time for the filing of an application in accordance with article 35 of the ECHR: from 6 to 4 months. This amendment will enter into force 6 months later (I assume on 1 February 2022). Articles 4 and 8(3) of the Protocol state the following:
Article 4
“In Article 35, paragraph 1 of the Convention, the words “within a period of six months” shall be replaced by the words “within a period of four months”.
Article 8(3)
“Article 4 of this Protocol shall enter into force following the expiration of a period of six months after the date of entry into force of this Protocol. Article 4 of this Protocol shall not apply to applications in respect of which the final decision within the meaning of Article 35, paragraph 1 of the Convention was taken prior to the date of entry into force of Article 4 of this Protocol” (our emphasis).
This is perhaps a reaction to the increasing workload of the Court, which seems to be of serious concern to the States Parties. In particular, the Brighton declaration has noted that “the number of applications made each year to the Court has doubled since 2004. Very large numbers of applications are now pending before all of the Court’s primary judicial formations. Many applicants, including those with a potentially well-founded application, have to wait for years for a response.” Undoubtedly, this may compromise the effectiveness and reliability of the ECtHR. Nevertheless, this reduction of the filing time may also leave out cases that are well founded but during which the parties were late in realising that such recourse / legal challenge was available.
Lastly, I would like to highlight the removal of the right of the parties to object to the relinquishment of jurisdiction to the Grand Chamber in certain circumstances, such as when a case pending before a Chamber raises a serious question affecting the interpretation of the ECHR or its protocols (art. 3 of the Protocol and art. 30 ECHR). In my view, this is an improvement and avoids delays as it allows the Chamber to make that call. It also provides consistency to the case law of the ECtHR. As to its entry into force, article 8(2) of the Protocol sets out the following:
“The amendment introduced by Article 3 of this Protocol shall not apply to any pending case in which one of the parties has objected, prior to the date of entry into force of this Protocol, to a proposal by a Chamber of the Court to relinquish jurisdiction in favour of the Grand Chamber”