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Private International Law: Adding Value for Australia

06 Feb 2014
Dr Christopher Ward

The alignment of various nation-state laws by implementation of international conventions has been a work in progress that has had practical benefits for Australia and other countries in resolving cross border legal disputes. 

The Hague Conference on Private International Law is the world’s leading repository of knowledge of comparative legal systems and their interaction. It works in the shadowy world of private international law, where intersecting and inconsistent rules often give rise to problems of byzantine complexity, rendering strong lawyers weak and clients frustrated with rage.

The Hague Conference first met, as a conference, in 1893. Today it is an international organization, governed by statute and consisting of 75 members. Membership is open to states and regional economic organisations (notably including the European Union). In our region, member states include India, China, Russia, South Korea, Japan, Vietnam, Malaysia, the Philippines and New Zealand.

The defining purpose of the Conference is the “progressive unification of the rules of private international law.” Although the task remains, necessarily, incomplete, the existing work of the Conference is truly remarkable and fundamentally benefits the international society of nations.

The Australian Connection

Australia became a member of the Conference in 1973, and has remained a very active participant since then. Many of the completed projects of the Conference are of great relevance to Australia and Australians. By way of example, in 1986 Australia ratified the 1980 Convention on the Civil Aspects of International Child Abduction. That Convention provides a significant pathway for those who find themselves in fraught international custody battles involving the non-consensual relocation of children (minors). It has been relied upon innumerable times by Australian citizens.

The 1970 Convention on the Taking of Evidence Abroad in Civil or Commercial Matters (to which Australia acceded in 1992) provides a simple, logical and clear mechanism for the taking of evidence outside Australia where the relevant witness is located in another Convention State. Whilst such procedures are certainly not trouble free, and while they do rely on the implementation of the Convention in local legal systems, they are immeasurably easier than the alternatives in non-Convention States. The Convention is given domestic effect in Australian law and Australian Courts have readily operated within the Convention rules, both in relation to incoming and outgoing requests to take evidence.

Similarly, the accession by Australia to the 1965 Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters has greatly simplified many aspects of the service of originating and other court processes.

Works in Progress

Many Hague Conference projects are ongoing. Of particular current interest to Australia is the Judgments Project, which has recently resumed its efforts to harmonise rules on the recognition and enforcement of judgments, and on jurisdiction of courts. The Hague Convention on Choice of Court Agreements is not yet in force, but will substantially benefit Australia and other states in the Asia-Pacific region. Work continues on inter-country adoption, e-commerce, and choice of law, to name just a few.

The Australian Institute for International Affairs and the Australian Branch of the International Law Association have for several years assisted with the administration of the Nygh Internship, which sponsors one talented Australian to attend the Hague Conference as an intern each year. The Internship is named in honour of Justice Peter Nygh, who was a leader in private international law both in this country and internationally. It is fitting that his work is recognized by the Internship at the Hague Conference.

Dr Christopher Ward

Barrister & President, International Law Association (Australian Branch)