Cross-border legal transactions

Of the many intergovernmental legal organizations in The Hague, the reputed legal capital of the world, the better known ones are the International Court of Justice, International Criminal Court and the Permanent Court of Arbitration. There is another intergovernmental organization whose works have had beneficial impact on peoples, including Filipinos, and companies around the world yet has largely gone unnoticed.

Among the latter’s outputs is the Child Support Convention which entered into force for the Philippines on Oct. 1 after the Philippine embassy in The Hague deposited the country’s instrument of ratification in June 2022. The US, UK, all 28 EU member-states and other countries, altogether 44 states, are bound by the Convention, thus collection of child support for Filipino and other children from neglectful parents based in other jurisdictions has become easier through the designation of “central authorities.” Child support which has been considered an impossibility for most is now within reach.

These innovations – nay, best practices – have been the products of the quiet yet often game-changing work being undertaken by states which are members of The Hague Conference on Private International Law – Conférence de La Haye de droit international privé (HCCH). Established in 1893, HCCH is the international organization whose mandate is the progressive unification of the rules of private international law.

The Philippines is relatively a newcomer to the HCCH, becoming a contracting party only in July 2010. But even before it became a member, the country had seen its merits and acceded to the Intercountry Adoption Convention which ensures that adoptions by foreign adopters are made in the best interests of the child. The country has since made up for lost time. Under the leadership of the Department of Foreign Affairs and in partnership with the Supreme Court, the country acceded to three more conventions, namely the Convention on the Civil Aspects of International Child Abduction in 2016, Apostille Convention in 2019 which abolished the requirement of legalization for foreign public documents (so-called consular “red-ribbon”) and the Service Convention in 2020 which has streamlined the service of judicial and extrajudicial documents on parties based overseas.

In today’s world, individuals and businesses are constantly engaged in cross-border interactions, with work, commerce, study, shopping, travel, relationships and more increasingly taking place across multiple countries. These activities require a high degree of legal certainty and predictability to thrive. However, as noted by the HCCH, when taking place across borders, the differences between countries’ legal systems often leave gaps in the legal framework, resulting in uncertainty as to which authority has jurisdiction, which law is applicable, how decisions are recognized and enforced and what cooperation mechanisms are available to overcome challenges of cross-border judicial or administrative procedures.

The HCCH’s mission is to resolve these questions by providing internationally agreed solutions, developed through the negotiation, adoption and operation of international treaties, the HCCH Conventions to which states may become contracting parties and soft law instruments, which may guide states in developing their own legislative solutions. These conventions and instruments provide clarity and direction in cross-border relations across three main areas – International Family and Child Protection Law, Transnational Litigation and Apostille and International Commercial, Digital and Financial Law.

Studies and consultations among key Philippine government agencies are currently being undertaken on possible accessions to other HCCH conventions which could likewise be beneficial, namely the Evidence Convention and the Recognition and Enforcement of Foreign Judgments Convention.

On Oct. 18-20 October, the DFA, Supreme Court and the University of the Philippines’ College of Law are jointly hosting the HCCH Asia Pacific Week 2022 (APW) in Makati. To be attended by HCCH Secretary General Christophe Bernasconi and experts, judges, government officials and lawyers from across the Asia-Pacific region and beyond, APW will act as a forum for the exchange of ideas and viewpoints from across the region on some of the most prominent HCCH conventions and instruments, as well as on the HCCH’s ongoing normative projects and possible future work.

The APW will provide a unique opportunity for participants to learn more about the HCCH and its work, to engage with experts from across Asia and the Pacific and to consider regional experiences and perspectives. More information about APW, including the program and registration information, are available at www.apwmanila2022.law.upd.edu.ph.

Facilitating legal transactions across borders is one key area where diplomacy and international law can directly benefit people, especially overseas Filipinos and Philippine companies operating overseas.

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J. Eduardo Malaya is Philippine Ambassador to the Netherlands.