[Interview] 50 Years of The 1970 HCCH Evidence Convention

We spoke to Dr João Ribeiro-Bidaoui, First Secretary at the Permanent Bureau of the Hague Conference on Private International Law, ahead of a joint webinar between the two organisations on 1 June 2021. More details about this webinar and how to register can be found here.

ABLI: Could you tell us, by way of background, a little bit about the Hague Conference on Private International Law?

Dr João Ribeiro-Bidaoui (JRB): The Hague Conference on Private International Law, or HCCH, is a global inter-governmental organisation comprising 88 Members, including the European Union, that represent all continents and legal traditions. The statutory mission of the HCCH is to work for the progressive unification of the rules of private international law. This entails developing and servicing multilateral legal instruments in this field. In carrying out its mission, the HCCH has become a centre for international judicial and administrative cooperation in the area of private international law, especially in transnational civil or commercial litigation and family law.

The HCCH Conventions are open to all States, including non-HCCH Members. This means that more than 150 States are connected to our work, either because they are Contracting Parties to at least one HCCH instrument or because they are Members of the organisation.

The activities of the HCCH are coordinated by its Secretariat, the Permanent Bureau, which is seated in The Hague, and are supported by two regional offices, the Regional Office for Asia and the Pacific (ROAP) in Hong Kong SAR, China, and the Regional Office for Latin America and the Caribbean in Buenos Aires, Argentina.

ABLI: When was the ROAP opened and what is its mission?

JRB: The ROAP, representing the HCCH in the Asia-Pacific region, opened in Hong Kong SAR, China in 2012 with the mission to act as a bridge to enhance communications and understanding between the Permanent Bureau of the HCCH in The Hague and States in Asia Pacific. The ROAP promotes the HCCH and the HCCH Conventions by conducting events, developing projects and carrying out a variety of activities across the Asia Pacific. The ROAP Representative works to promote the HCCH and its Conventions and build networks in the region, develop deeper understanding of the Hague Conventions and facilitate good practice and consistent implementation of these conventions. Reporting on regional activities regularly to the Permanent Bureau, he or she also conducts or participates in regional events such as workshops, lectures, conferences, seminars, etc.

ABLI: The joint ABLI-HCCH webinar on 1 June will discuss the 1970 HCCH Evidence Convention and provide a brief introduction of the 1965 HCCH Service Convention. How do HCCH instruments facilitate transnational litigation and complement each other?

JRB: A number of core HCCH instruments – namely, the 1965 Service Convention, the 1970 Evidence Convention, the 1980 Access to Justice Convention, the 2005 Choice of Court Convention, the Principles on Choice of Law and the 2019 Judgments Convention – have complementary goals, each contributing in their own way to the effective access to justice and cross-border cooperation. Although each HCCH Convention is a stand-alone instrument that governs a specific aspect of cross-border proceedings, when viewed holistically, these instruments form a larger framework that facilitates and streamlines transnational civil or commercial litigation in unison.

Specifically, these instruments put in place a predictable legal framework that allows the parties involved in cross-border dealings to mitigate certain risks inherent to transnational transactions and litigation.

For example, the HCCH Principles on Choice of Law recognise the freedom of the parties to choose the law governing their contracts, and the 2005 Choice of Court Convention recognises the freedom of the parties to choose a specific forum to litigate their disputes. Should a dispute arise, the 1965 Service Convention facilitates service of process abroad, whilst the 1970 Evidence Convention facilitates the taking of evidence abroad. More recently, the 2019 Judgments Convention facilitates the recognition and enforcement of foreign judgments.

ABLI: Turning to the 1970 Evidence Convention, what are the salient benefits of this instrument?

JRB: The 1970 Evidence Convention – with 63 Contracting Parties to date – facilitates the taking of evidence abroad in civil or commercial matters by establishing different methods of cooperation among Contracting Parties for the taking of evidence.

In essence, the Convention serves as a bridge between different legal traditions and, while it does not contain substantive rules relating to the actual taking of evidence, it improves the “letter of request” system by adopting the Central Authority model (Chapter I). The Convention also enlarges the devices for the taking of evidence abroad by permitting the direct taking of evidence by consuls or commissioners (Chapter II).

Importantly, given that the spirit and the letter of the Convention do not constitute an obstacle to the use of modern technology – as stressed on multiple occasions by the Special Commission which meets on a regular basis to review the operation of the Convention – information technology may be used to facilitate the operation of the Convention, including communication by e-mail and the taking of evidence by video-link, when permitted by the domestic law of the State in question.

In line with this, the Permanent Bureau has recently published the Guide to Good Practice on the Use of Video-Link under the Evidence Convention to assist stakeholders in the taking of evidence abroad through video-link.

ABLI: Finally, why do you think it is important for practitioners in Singapore to sign up for the 1 June session?

JRB: First and foremost, this webinar offers attendees a rare opportunity to learn from seasoned experts on how the 1970 Evidence Convention operates in practice, in both civil and common law jurisdictions, and on how the use of technology may further facilitate the taking of evidence abroad in the Asia Pacific.

I believe it is only a matter of time before any Singaporean practitioner who deals with transnational civil or commercial litigation will come across the Convention. This is because the Convention is an instrument of legal cooperation which sees new contracting parties each year, including those in Southeast Asia. Specifically, six of the key trading partners of Singapore, namely, China (including Hong Kong SAR), France, Germany, the United States and Vietnam are parties to the 1970 Evidence Convention, and they represent over a third of Singapore’s total trade. Further, there are good reasons to believe that international trade will, soon enough, resume to pre-pandemic levels with a potential increase in dispute resolution matters – not to mention that we are yet to see the full extent of commercial disputes resulting from the impact the pandemic has had on cross-border value chains.

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