The HCCH Special Commission on the practical operation of the 1965 Service, 1970 Evidence and 1980 Access to Justice Conventions took place recently in the Hague. “The Special Commission meeting reviewed the Service, Evidence, and Access to Justice Conventions, focusing on digital advancements and best practices to ensure cross-border judicial cooperation remains effective amidst evolving technology and diverse legal frameworks.
The Hague Conference on Private International Law (HCCH) is an intergovernmental organisation focused on unifying private international law rules. Its mandate is outlined in Article 1 of its Statute which is “the progressive unification of the rules of private international law”.
Evolution of the HCCH
The Hague Conference on Private International Law, which Cyprus has been a signatory to since 1984, has evolved significantly in recent years. Once considered a niche area affecting only the elite, private international law now plays a crucial role in the lives of individuals and businesses worldwide. The HCCH aims to address new needs swiftly and effectively while maintaining its commitment to legal security, efficient dispute resolution, and the rule of law, all while respecting diverse legal traditions. In our interconnected world, individuals and businesses frequently engage in cross-border interactions, necessitating high legal certainty and predictability. However, differing legal systems across countries can create gaps and uncertainties regarding jurisdiction, applicable laws, recognition and enforcement of decisions, and cooperation mechanisms for cross-border judicial or administrative procedures. The HCCH resolves these issues by offering internationally agreed solutions through the negotiation, adoption, and operation of international treaties (HCCH Conventions) and soft law instruments. These instruments guide states in developing their own legislative solutions.
Preparations for the special commission meeting: ensuring effective implementation and operation
The HCCH ensures the effective implementation and operation of its Conventions and instruments by providing a range of post-Convention services. The HCCH organises Special Commission meetings to review the practical operation of its core Conventions and instruments. These meetings result in Conclusions & Recommendations (C&Rs) that promote best practices and enhance their operation. The Special Commission on the 1965 Service, 1970 Evidence, and 1980 Access to Justice Conventions was held in The Hague from 2 to 5 July 2024. Notably, this was the first HCCH meeting where Spanish was an official language, following the new language policy effective from 1 July 2024.
For this Special Commission, various documents were prepared, including questionnaires on practical operations and summaries of responses from Contracting States. A notable document addresses contractual waiver within the Service Convention. It examines scenarios where national procedural law permits parties to waive service requirements, opting for informal postal notice, even if the destination state objects under Article 10(a) of the Convention. The document highlights the benefits of the Service Convention, such as facilitating document transmission, ensuring defendants receive actual notice, protecting against default judgments, and aiding in recognising and enforcing foreign judgments.
Contracting Parties are encouraged to promote and regularly update country profiles (Prel. Docs 9 and 10), emphasising IT implementation in Convention operations. These profiles are valuable resources for parties or officials making requests for document service or evidence abroad.
A document on civil and commercial matters has been issued, reiterating previous Conclusions and Recommendations. It includes a proposal from some States for a list-based approach to define “civil or commercial matters,” but ultimately recommends a case-by-case approach.
Moreover, it is worth noting that revised versions of the Service and Evidence Handbooks were submitted for approval.
At each Special Commission meeting, Conclusions and Recommendations are adopted. Prel. Doc. No. 13 outlines several IT-related recommendations, emphasising the benefits of electronic filing (e-filing) systems and virtual hearings via video-link. These technological advancements can significantly enhance the efficiency of cross-border litigation and improve access to justice. The HCCH Conventions are being implemented during a period of significant technological transition for many Contracting Parties. For instance, Cyprus, despite some progress in digital transformation, had one of the lowest rates of digital technology use in its courts in Europe as of 2023. By prioritising digitalisation and international cooperation, Cyprus aims to enhance its use of IT in judicial processes, thereby contributing to the future objectives of the HCCH Conventions.
Outcome of the special commission meeting: adopting recommendations and enhancing technological advancements
The meeting, attended by 260 delegates and experts both in person and online, included HCCH Members, non-Member Contracting Parties, Observers, and members of the Permanent Bureau (PB). Participants shared valuable insights on various agenda topics and discussed ways to improve Convention operations, particularly with electronic communications and the development of new electronic Country Profiles for the 1965 Service and 1970 Evidence Conventions.
Participants discussed the use of Information Technology (IT) for the 1965 Service Convention, focusing on request transmission and execution, locating addressees, managing delays, and alternative transmission channels. For the 1970 Evidence Convention, discussions covered Letters of Request, the recommended Model Form, swift request execution, language and translation issues, types of evidence, and video-link use for both Chapters I and II. The SC reviewed the term “civil or commercial matters” for both Conventions, recommending a broad, liberal, and autonomous interpretation. Regarding the 1980 Access to Justice Convention, delegates discussed legal aid application assessments and encouraged more States to ratify or accede to it.
The SC approved, in principle, the fifth edition of the Service and Evidence Handbooks, which will greatly benefit users of both Conventions, and welcomed the draft Country Profiles, noting the need to incorporate SC discussions and Conclusions & Recommendations. For future work, the SC recommended organising informal online meetings for Central Authorities, further discussions on IT use, and concluding new Model Forms for evidence taking under Chapter II of the 1970 Evidence Convention. The SC adopted 138 C&Rs, now available in Spanish for the first time.
Conclusion
The Service and Evidence Conventions have historically excelled in a paper-based environment but now struggle with technological advancements. Although judicial and administrative cooperation Conventions are generally easier for States to implement due to fewer required changes to domestic laws, there is hesitation in adopting a ‘functional equivalence’ approach to provisions like Article 10(a) of the Service Convention (direct postal service) and Article 9(2) of the Evidence Convention (direct evidence collection).
As Contracting Parties vary in their digital adoption, increasing IT use in Convention operations poses challenges for paper-reliant countries. Bridging this gap requires developing a document outlining good practices for operating the three Conventions, submitting country profiles for approval, and completing questionnaires on practical operations and responses from Contracting States. These steps are crucial for identifying how IT is implemented in each country, ensuring the Conventions remain effective and universally applicable in a digital age.
For more information or any inquiries, please feel free to write to the members of the Harris Kyriakides Dispute Resolution team or contact us at [email protected]