Often at the corner of a lawyer’s eye are three international organisations that work in the area of private international law. They promote harmonisation in a wide range of legal sectors.
Although their impact used to be seen as distant from many solicitors’ everyday work, that is less true each day as international mobility (the Hague conventions on international family law, for instance) and technology (UNCITRAL’s ongoing work on online dispute resolution) bring cross-border elements into more ordinary cases. The three are UNCITRAL, UNIDROIT, and the Hague Conference on Private International Law. Let me first describe them.
The United Nations Commission on International Trade Law (UNCITRAL) was established by the UN General Assembly in 1966. It meets in New York and Vienna. Its focus is the modernisation and harmonisation of rules on international business, including: dispute resolution, international contract practices, transport, insolvency, electronic commerce, international payments, secured transactions, procurement and sale of goods. It has membership from 60 member states from around the world.
The International Institute for the Unification of Private Law (UNIDROIT) is an independent intergovernmental organisation based in Rome. It was set up in 1926 as an auxiliary organ of the League of Nations, and, following the end of the league, re-established in 1940 on the basis of a multilateral agreement, the UNIDROIT Statute. It has 63 member states. Its purpose is to study the needs and methods for modernising, harmonising and co-ordinating private, and in particular commercial, law as between states and groups of states, and to formulate uniform law instruments, principles and rules.
The Hague Conference on Private International Law held its first meeting in 1893, on the initiative of T.M.C. Asser, an energetic Dutch lawyer and academic much involved in the establishment of international legal mechanisms. It became a permanent intergovernmental organisation in 1955. It has 75 members representing all continents.
There are no prizes for guessing where it is based. It has probably the most well-known conventions, such as: the abolition of legalisation (Apostille), service of process, taking of evidence abroad, international child abduction, intercountry adoption, conflicts of laws relating to the form of testamentary dispositions, maintenance obligations and recognition of divorces.
It is important that lawyers participate in the work of these bodies, since we have to implement the various instruments and principles afterwards. My organisation, the Council of Bars and Law Societies of Europe, is an observer member to two of the bodies, UNCITRAL and the Hague Conference.
We have proved to be far more active in the Hague Conference’s work. We have recently issued a statement strongly encouraging the EU to ratify the Hague Convention on Choice of Court Agreements, and late last year we gave detailed comments on the Hague Conference’s Judgments Project (on jurisdiction, and the recognition and enforcement of judgments in civil and commercial matters).
We are also participating in the Hague Conference’s proposed iSupport Project, which will provide an IT platform between central authorities of different states to communicate and process data under both the 2009 EU Maintenance Regulation and the 2007 Hague Maintenance Convention, facilitating, through electronic means, the effective cross-border recovery of maintenance obligations.
My brief outline of the three bodies describes them, including the focus of their work. But it does not really explain the difference between them, which still rather puzzles someone like myself, who is an outsider to private international law-making. I note from a document on one of their websites that I am not alone in my bewilderment.
I shall quote from this document, in order to pose a simple, personal question at the end. For instance, I see that the three bodies ‘regularly coordinate their activities in order to: (a) assure the integration of the substantive terms of the instruments that they sponsor; and (b) avoid overlap and inconsistency. This coordination results in the promulgation of instruments that complement each other and, thus, can be considered and implemented by states either as part of a comprehensive systemic reform or separately’.
Well, I am delighted to read that they try to make things easier for puzzled outsiders. But I note further that even they concede that, despite this co-ordination, inexperienced policymakers and legislators might have difficulty ‘in determining: (a) how the various instruments … fit together; (b) which instruments would serve the policy goals of the state; (c) whether implementing (or declining to implement) one instrument precludes implementing another instrument; and (d) whether the instruments need be implemented in a particular order’. Hurray! That is exactly how I feel.
So here is my simple question: leaving aside the history and traditions of these three organisations, would it not be simpler to merge them, and have just one intergovernmental organisation doing all the work? There is probably an obvious answer to this question, but I have not found it.
Jonathan Goldsmith is secretary general of the Council of Bars and Law Societies of Europe, which represents around a million European lawyers through its member bars and law societies. He blogs weekly for the Gazette on European affairs