INTRODUCTION

Society evolves due to scientific advances in assisted reproductive techniques (ART), allowing couples and single parents to form their families.Nowadays, children can have more people playing different roles in their lives besides their biological parents. For instance, parents can raise children conceived through surrogacy or gamete donation to whom they have no genetic link, or polyamorous parents can choose to raise children with two or more other people.3 The modern family has different elements (emotional, functional, social) that may complement and conflict with each other.While reproductive medicine and gamete donation help couples have offspring when they cannot conceive naturally, in legal terms, it raises the question of whether these children have the right to know their genetic origins.4 5 Both Articles 7 and 8 of the United Nations Convention on the Rights of the Child (CRC)6 and the case law on Article 8 of the European Convention on Human Rights (ECHR)7 recognise this right.This new reality invites legislators worldwide to rethink traditional legal 8 concepts such as legal parentage and parental responsibilities.

During this process of rethinking, legislators face the same challenges: for instance, how to deal with questions of genetic origin, and how does this relate to protecting family life and parental responsibilities? And how to deal with (conflicting) rights of the child, the gamete donor and non-biological parents?

The approach to the issue of conflicting rights varies in the different legal systems, depending on how a legal system balances all the rights and interests at stake in their legislation.

The ‘Judgments Project’ was a process of multilateral discussions and negotiations between the members of the Hague Conference on Private International Law between 1992 and 2001. Its aim was to create unified legal provisions regulating the exercise of international direct jurisdiction and ensuring the recognition and enforcement of judgments in civil and commercial matters. This project was a remarkable and important project for various reasons. By creating a global regime enabling the recognition and enforcement of judgments in civil and commercial matters across borders between the Hague Conference members (including, among others, the United States of America and the Member States of the European Community) and third States, it would have filled a massive gap in the international legal order at the time. In addition, the Hague Judgments Project was the first serious attempt by the Hague Conference since the 19th century to unify rules of international (direct) jurisdiction (sometimes simply referred to as ‘jurisdiction’), concerning the power of courts to hear civil and commercial proceedings with an international element and render a judgment against the defendant, on a large scale. This ambitious project to create a global convention on jurisdiction and judgments failed, however, after almost 10 years of preparatory work, and an enormous amount of resources on the part of both the Hague Conference Member States and the secretariat of the Hague Conference, the Permanent Bureau, had been spent.

INTRODUCTION

As discussed in Chapter 2, the Permanent Bureau deviated from its established practices by not preparing feasibility studies on each of the possible types of convention in order to create a convention on jurisdiction and judgments in the context of the Hague Judgments Project. A closer analysis of the preparatory work the Permanent Bureau undertook for successful past convention projects (the 1980 Hague Convention on International Child Abduction and the 1993 Hague Convention on Intercountry Adoption) shows that for the Hague Judgments Project, the Permanent Bureau also departed from past usage in other ways. When looking into the preparatory work on the 1980 Hague Child Abduction Convention and the 1993 Hague Intercountry Adoption Convention, a specific pattern of preparation can be identified. The Permanent Bureau not only prepared feasibility studies before a new topic was added to the agenda of the Hague Conference. Additionally, it conducted research on the needs or problems of the Hague Conference Member States, and on the possible solutions which could be employed by a new private international law instrument. Furthermore, the Permanent Bureau used to partake in detailed planning for a new Hague Convention once potential solutions of private international law for addressing the relevant problems or needs had been identified. This preliminary work on new Hague instruments, intentionally or unintentionally, followed established patterns used in the discipline of project management. Project management is a method originating from business and management studies which is used to plan, manage and control the different life cycles of a project in order to achieve the project objectives within a certain pre-defined time limit.

After the Special Commission meeting in 1996, the Hague Judgments Project was officially added to the agenda of the Hague Conference during its Eighteenth Session. In project management terms, and according to previous Hague Conference practice, the Hague Judgments Project now entered the ‘implementation phase’, i.e., the phase in which the drafting of a convention text began during further Special Commission meetings set up for this purpose. For this phase, which lasted from June 1997 – October 1999, in total five further Special Commission meetings took place: in June 1997, March 1998, November 1998, June 1999 and October 1999 (originally, only four Special Commission meetings were scheduled). The draft convention text created by those Special Commission meetings was meant to serve as the basis for official negotiations between the Hague Conference Member States during the Nineteenth Diplomatic Session, which originally was scheduled to take place in the year 2000.

In theory, during this ‘implementation phase’, the plan to develop a judgments convention should have been executed. To recall, the general concept that had been developed during the Special Commission meetings in 1994 and 1996 consisted of pursuing the creation of a strict double convention as a first priority (but without having abandoned the mixed convention concept completely). However, an important project management step in the creation of a plan for developing a global judgments convention had been missed. According to good project management practice and previous usages of the Permanent Bureau, the general concept for creating a Hague Judgments Convention that had been developed and incidentally approved by the Hague Conference Member States during the Eighteenth Session should have been developed further in a ‘definition phase’ of the project.

Another question which needs to be considered in order to understand why the Judgments Project failed is whether or not the project addressed any real interests or needs of the Hague Conference Member States in general, and of the two main stakeholders in the Judgments Project, the US and the EC Member States, in particular. As discussed above, creating a global double convention that would unify grounds of international direct jurisdiction and secure the recognition and enforcement of judgments in civil and commercial matters had a strong theoretical appeal. In particular, unified grounds of jurisdiction would have enhanced legal certainty and predictability in international civil and commercial proceedings as compared to the status quo, and the guaranteed recognition and enforcement of judgments would have fostered access to justice for litigants, and supported trade relations between States. However, if these theoretical interests had not matched any real national interests or needs of, in particular, the US and the EC Member States, the two key stakeholders in the project, this could have contributed to the fact that the Judgments Project did not lead to the adoption of a convention text.

UNITED STATES INTERESTS IN THE JUDGMENTS PROJECT IN 1992

SECURING THE RECOGNITION AND ENFORCEMENT OF UNITED STATES JUDGMENTS IN THE EUROPEAN COMMUNITY

It was the US who proposed to put negotiations on a general convention on the recognition and enforcement of foreign judgments in civil and commercial matters on the agenda of the Hague Conference in 1992.

LESSONS FROM THE FAILURE OF THE JUDGMENTS PROJECT (1992–2001)

The original Judgments Project of the Hague Conference, which had consumed almost 10 years of work on the part of the Hague Conference Member States and the Permanent Bureau, was a missed opportunity to create an international convention regulating both the recognition and enforcement of foreign judgments and international direct jurisdiction. This was not due to the unsuitability of the Hague Conference as a forum for creating a global judgments convention. The Hague Conference was an entirely suitable forum due to its unique experience in and proven track record of concluding successful conventions which harmonised rules of private international law. Moreover, the Project did not fail because unifying grounds of jurisdiction on a broad scale and on a global level was impossible. Rather, the Judgments Project did not lead to the adoption of a convention text by the Hague Conference Member States because the pre-negotiation phase of the project (between 1992 and 1999) had not been prepared and managed by the Permanent Bureau with the same rigour as other Hague Conference projects.

If the Permanent Bureau had more closely adhered to well-established management practices and procedures employed for other Hague Conventions, the Special Commission meetings would not have pursued the goal of working towards an unfeasible convention type in the form of a closed double convention as a first priority.

After the final Special Commission meeting had taken place in October 1999, the US declared that it could not support the October 1999 Preliminary Draft Convention as a basis for multilateral negotiations in a Diplomatic Session, and the Judgments Project had reached an impasse. The Legal Advisor to the US Department of State, Jeffrey D Kovar, informed the then Secretary General of the Hague Conference, Hans van Loon, in February 2000 that the October 1999 Preliminary Draft Convention which had been produced by the Special Commission meetings on the Judgments Project stood ‘no chance of being accepted in the United States’. According to this letter, the October 1999 Preliminary Draft Convention raised various issues regarding its scope of application, the rules on recognition and enforcement, Article 37 October 1999 Preliminary Draft Convention (Relationship with other conventions), and Article 41 October 1999 Preliminary Draft Convention (Federal clause). The letter also raised concerns regarding the specific content of some of the jurisdictional provisions of the green list. The most significant concerns of the US, however, related to the structure of the draft convention text, i.e., the convention type pursued, which was a mixed convention in name only as discussed above in Chapter 5:

Part of the preparation of previous convention projects by the Permanent Bureau of the Hague Conference consisted of studies which assessed the feasibility of these new projects before a topic was put on the agenda of the organisation. These feasibility studies were then used by the Hague Conference Member States to decide whether the new topic should be included in the agenda of the Hague Conference for future work, i.e. whether a new Hague instrument should be created on this topic. These studies used to analyse, for example, whether the subject matter of the future convention was a suitable one for harmonisation in the first place, or whether the potentially available methods to achieve harmonisation of the law through a Hague convention in this area were feasible methods. For the Hague Judgments Project, however, no comprehensive feasibility studies were prepared concerning the question which convention type should be pursued by the Hague Conference Member States.128 Why such feasibility studies would have been needed, and the effect of the lack of these studies on the Judgments Project will be analysed in the following.

THE NEED FOR A FEASIBILITY STUDY ON THE CONVENTION TYPE (THE SINGLE, DOUBLE AND MIXED CONVENTION)

The goal of the Hague Judgments Project was to create an international convention that would have secured the recognition and enforcement of judgments in civil and commercial matters between the future Contracting States. Conceptually, three convention types are available to achieve this goal: a single convention, a (‘complete’ or ‘strict’) double convention, and a mixed convention.

A single convention (sometimes also referred to as ‘traité simple’ or ‘convention imparfaite’) only secures the recognition and enforcement of foreign judgments, without regulating the question of direct jurisdiction (the question of whether domestic courts have the power to hear the proceedings and render a judgment against the defendant) at the same time.

INTRODUCTION

The first question that must be addressed in order to understand why the Hague Judgments Project failed is whether the Hague Conference on Private International Law was an appropriate forum to create a global judgments convention. As previously discussed, it was the Legal Advisor of the US Department of State who approached the Hague Conference with the idea of creating a global convention on jurisdiction and judgments. The US chose the Hague Conference as a negotiating agency in particular because the US was interested in securing the recognition and enforcement of US judgments within the Member States of the EC (and the European Free Trade Association (EFTA)). By means of this convention, the US had also hoped to reduce the risk to US litigants of being subject to civil proceedings in European courts on the basis of exorbitant, i.e., excessive, grounds of international direct jurisdiction. In 1992, all of the Member States of the EC and most of the EFTA Member States were also Member States of the Hague Conference, and so it was a suitable forum in which US interests in the project could be accommodated. However, negotiating under the auspices of the Hague Conference also offered distinct institutional features which made it a uniquely appropriate agency for creating a global judgments convention.

1.2. SUBJECT-MATTER EXPERTISE

The most obvious of these features was undoubtedly the subject-matter expertise of the Hague Conference. The two subject matters to be considered when creating a judgments convention (international jurisdiction and the recognition and enforcement of foreign judgments) belong to the area of private international law, and more specifically to international civil procedure law.

INTRODUCTION

As discussed in Chapter 6, the term ‘mixed convention’ had a different meaning for the US delegation than for the EC and its Member States. The next question that has to be explored in order to understand why the Judgments Project failed, therefore, is whether the US delegation potentially contributed to this misunderstanding by not making their understanding of a mixed convention (the true mixed convention as originally proposed by the US delegation and the Working Group in 1992) clear enough during the pre-negotiation phase of the Special Commission meetings. In fact, the concerns raised by the US delegation in the letter to Hans van Loon, the then Secretary General of the Hague Conference, that was sent after the Special Commission meeting in October 1999 seemed to have taken some of the other delegations, especially from Member States of the EC, by surprise. One of the experts of the United Kingdom delegation to the Special Commission meetings from 1996 onwards, Paul R Beaumont, remarked that Jeffrey D Kovar's letter had interrupted ‘the relatively smooth path to a Diplomatic Conference’.

Equally, the Portuguese ambassador and permanent representative to the EU, Vasco Valente, declared in a fax to the Secretary General of the Hague Conference that Portugal had taken note of the Kovar letter ‘with apprehension’. If the US had voiced their concerns about the structure of the convention only after the elaboration of the final version of the preliminary draft convention text in October 1999, then they would also have contributed to the failure of the Judgments Project to a certain extent.

The final question which must be addressed in order to understand why the Hague Judgments Project failed is why the EC and its Member States clung to the structure of the October 1999 Preliminary Draft Convention during the Diplomatic Session and were not in general willing to diverge substantially from it.

THE EUROPEAN COMMUNITY's INTEREST IN MAINTAINING A BROAD GREEN LIST

As discussed above in Chapter 3, the European bloc had an interest in filling the gap in the rules on international direct jurisdiction left by the 1968 Brussels Convention regarding defendants who were domiciled in a third State.Creating unified rules on international direct jurisdiction on a global level could have helped to create a level playing field for claimants in EC Member States with regard to proceedings against defendants without a domicile in an EC Member State, and foster equal access to justice. It is likely that the EC also had another hidden interest in maintaining a broad green list reflecting the jurisdictional provisions of the 1968 Brussels Convention (or of the proposal for the Brussels I Regulation (hereafter COM (1999) 348 final) intended to replace the Brussels Convention). A Hague Judgments Convention with jurisdictional provisions drafted according to the Brussels regime would have expanded the geographical influence of the European regime to a considerable extent: a judgment rendered in one of the EC Member States could have been recognised and declared enforceable on a potentially worldwide scale under the Hague Judgments Convention if the judgment had fulfilled its requirements for recognition and enforcement.

To this day, there is no global instrument that regulates both the exercise of international direct jurisdiction of courts and the recognition and enforcement of foreign judgments on a broad scale for civil and commercial matters. In technical terms, such an instrument is called a double instrument, or double convention, as it contains unified rules on both jurisdiction and the recognition and enforcement of foreign judgments. This lack of a global double convention on jurisdiction and judgments means that as a rule, courts of every State in the world employ their own domestic rules of international (direct) jurisdiction in order to determine whether they have the power to hear proceedings in civil and commercial matters with an international element, and to render a judgment against the defendant in these proceedings. Moreover, as a rule, each State employs its own domestic rules on the recognition and enforcement of judgments in civil and commercial matters. Many States do not give effect to foreign judgments in civil and commercial matters (by way of recognition and enforcement) on their territory without an international instrument obliging them to do so. Moreover, even if they do, foreign judgments normally face a series of obstacles before they can be recognised and enforced abroad.

The appeal of creating a double instrument on jurisdiction and judgments is clear, therefore: unified, globally-applicable rules on jurisdiction would foster legal certainty and predictability in international civil and commercial proceedings for both claimants and defendants, as the same rules would apply in all States bound by the convention.