Séance du mardi 13 novembre 2007 (après-midi) Meeting of Tuesday 13 November 2007 (afternoon)
La séance est ouverte à 14 h 45 sous la présidence de Mme Kurucz (Hongrie), Mmes Degeling (Bureau Perma-nent) et Borrás (Espagne) étant co-Rapporteurs.
Article 13
1. The Chair recalled the intervention of Mr Lortie be-fore lunch on Article 13, which was still in square brackets.
She opened the floor for discussion on this issue.
2. Mr Ding (China) stated that his delegation did not object in principle but noted that they had concerns with the rule because it might introduce a substantive rule into domestic laws. He remarked that issues of admissibility were governed by national law and it was not the role of the preliminary draft Convention to change this. He comment-ed that the judiciaries in some States were reluctant to ac-cept electronic documents and this Article might result in precluding some States from joining the preliminary draft Convention as they would not want to change the laws re-lating to these issues. national rules on civil procedure relating to admissibility of electronic documents as evidence. She stated that there was a similar issue in Article 21 where the Central Authority was entitled to request a certified copy of documents that were transmitted. She stated that this provided some reas-surance but it related to recognition and enforcement only, and if the same reassurance in respect of establishment existed then the potential problems from Article 13 would be removed. She noted that the rule found in Article 13 was also found in the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, but in that Convention she understood it as being of more practi-cal relevance for common law countries and their rules on evidence.
4. Ms Carlson (United States of America) stated that her delegation was also confused as to how Article 13 would work and she acknowledged that it could perhaps be due to a lack of understanding of the technological issues. She noted that in internal consultations in her State it was clear that this Article was not understood and she stated that it needed to be clarified. She expressed support for the policy choice that the fact that something was transmitted elec-tronically should not make any difference to its admissibil-ity, but she stated that she did not think that Article 13 ac-complished this and only this. She stated that one particu-larly confusing aspect was the use of the term “admissibil-ity” when all this meant was that the content of the trans-mission could not be challenged on the grounds of the method of transmission. She stated that another confusing aspect was in paragraph 366 of the Explanatory Report, where the rule was explained by stating that domestic rules of evidence would still be applicable with regard to the substance of the documents and information. This suggest-ed that Article 13 was suppossuggest-ed to take care of all form ob-jections but it only takes care of one: the means of commu-nication. She recalled that the Delegate of the European Commission had pointed out another objection relating to the requirement of certification. She stated that the Explan-atory Report needed to be more precise and say that the substance and other aspects of form could be challenged.
She remarked that the United States of America would not oppose a broader article that would have a broader rule on admissibility, but she stated that she understood the goal of this Article was for documents not to be considered inad-missible solely on the grounds that they were transmitted electronically, which at present was not what the Article said.
5. Ms Morrow (Canada) supported the inclusion of Ar-ticle 13 and moving it into the General provisions. She stat-ed that her delegation did not agree that this should be plicable to direct applications but should only apply to ap-plications made through Central Authorities. She noted that the language was borrowed from Article 30 of the 1980 Child Abduction Convention, but noted that Article 13 real-ly focussed more on the means of communication rather than being a general admissibility provision like that found in Article 30 of the 1980 Convention. She expressed sup-port for making Article 13 a more general provision, which would perhaps be subject to requests for more formal con-firmation if required. She stated that this could also allow documents that were not typically in use in a requesting State to be allowed if they came through the preliminary draft Convention system. She noted that these comments were set out in Preliminary Document No 36.
6. Mr Beaumont (United Kingdom) noted that the ori-gins of this idea could be found in Article 30 of the 1980 Child Abduction Convention. He stated that as far as he was aware it had never had any use in the United Kingdom and did not have any value in their common law State. He stated that he was not sure whether it served any great pur-pose. He commented that if others have experience of this Article adding some value then it should be considered. But if all it says is that documents, whether electronic or other-wise, were admissible, then the big questions were left open such as what weight was to be given to the document or whether the court could reject it and on what grounds.
He stated that he was open to persuasion but, as things stood, it seemed to be a relatively moribund provision in the 1980 Convention and he failed to see its practical utili-ty. He remarked that one of the problems with Article 13 was that it was much less clear than Article 30, and this did not add to the attractiveness of the proposal. He noted that, however, the fundamental question was why we needed a rule saying that documents coming through the Central Authorities were admissible when the real question was what weight they should have, and this was not being regu-lated.
7. Mr Lortie (First Secretary) stated that the comments made so far were useful to the discussion. He stated that, as he had mentioned earlier, it was clear that nowhere in this provision did it say that a court was obliged to receive elec-tronic documents. If courts do not accept elecelec-tronic docu-ments they are simply not equipped to receive them by e-mail or otherwise. He stated that this Article was inspired by similar provisions in domestic laws used to counter in-dividuals that use as a defence the means by which the doc-uments were deposited in court. He commented that the world was in transition and many electronic documents were either sent to the court electronically where the court accepted this or were sent to Central Authorities electroni-cally and then presented to the court, but there were still many States struggling with electronic communications. He stated that a defendant should not be allowed to object to a document solely on the ground that it was transferred elec-tronically to the Central Authority before being deposited in court. He acknowledged that the Explanatory Report could have been clearer. He stated that the Article provided that there was one matter of form that an individual should not be allowed to raise and that was the means of commu-nications. He noted that all other questions were questions of evidence such as certification and validity. He stated that this provision was in no way trying to interfere with the rules of evidence in domestic law. He referred to the sug-gestion for a provision that a request could be made for a document to be certified in establishment matters. He stated that, while this could be done in relation to recognition and
enforcement, this was a treaty for private international law that can provide rules for the latter but, when it comes to establishment, the only element the preliminary draft Con-vention provided for was an application in this regard. He stated that all rules for establishment were found in domes-tic law, and if a document needed to be certified under do-mestic law then it needed to be certified. He remarked that the delegate of Canada raised a valid point that Article 13 should be made more general, but noted that he did not feel the international community was in a position where Arti-cle 13 would be read as medium-neutral by all States. He commented that in the coming years of transition a provi-sion like this would not be necessary; he gave the example of fax machines in the 1970s when everyone was making rules by which documents sent by fax would be acceptable, and nowadays there was no question about their acceptabil-ity. He stated that there was currently a state of transition and this Article would help some States and not hurt others, although he acknowledged that there was room for im-provement and stated that those willing to submit working documents should do so.
8. Ms Lenzing (European Community – Commission) thanked Mr Lortie for his clarification. She stated that the statement that Article 13 did not affect national rules on civil procedure gave comfort and took into account the concerns of her delegation. She noted that, while it may not be written that the provision would affect national rules of procedure, it was also not stated anywhere that it would not. She asked whether this could be changed and suggest-ed that “challengsuggest-ed” should be changsuggest-ed to “challengsuggest-ed by the other party”, as this would allow it to be challenged by the court. She remarked that she was not suggesting that the Article should include a rule on certified copies but wanted to clarify that it did not affect national rules on evidence, particularly regarding the acceptance of electronic docu-ments.
9. Mr Ding (China) stated that it was good to hear that Article 13 did not affect national procedures. He asked whether it was really useful with such a narrow application and suggested putting it somewhere in the Explanatory Report instead of in the text.
10. Mr McClean (Commonwealth Secretariat) stated that when reading the draft provision it did not seem to a com-mon law lawyer to say what Mr Lortie had hoped. He re-marked that the Article talked about the admissibility of information and he stated that this related to evidence. He noted that if it was dealing with the rejection of documents then this was not quite the same as the admitting of infor-mation, and if the Article was just talking about the rejec-tion of documents it was a bit of a non-issue. He stated that he did not know of any jurisdictions where a problem would arise because a document was sent from one person to another electronically before being presented to the court.
11. The Chair asked if there were any reactions to the proposal of the European Community to amend the text to state “may not be challenged by the defendant”.
12. Mr Ding (China) stated that the decision should not just be on the proposal of the European Community to im-prove the drafting; whether this Article was really needed should also be considered.
13. The Chair asked whether there were other delegations that objected to this Article.
14. Ms Carlson (United States of America) stated that her delegation did not object to this Article and she noted that she appreciated the comments of Mr Lortie that the Explan-atory Report could be clarified to state that this provision addresses one issue of form only. She noted that she shared the concerns expressed by the Delegate of the United King-dom and the Representative of the Commonwealth Secre-tariat but stated that she did not object to the Article.
15. Mr Beaumont (United Kingdom) stated that no an-swer had yet been given as to this provision’s practical utility. He noted that if it caused confusion then it would be difficult for the Drafting Committee to make it clear, and this would result in their spending time on a provision that did not add anything. He stated that he knew that people were reluctant to be negative, but that no positive com-ments had been voiced by any delegation on this Article.
16. The Chair stated that the delegation of Canada had supported the inclusion of this Article and they were firm on this. She asked if there were any delegations in addition to that of Canada who would like to have such a provision in the Convention. She suggested that the Article should be left in square brackets for the time being since this problem could not be resolved.
Article 42
17. The Chair stated that this Article was a new approach to where translation was to be provided and how the costs would be borne. She noted that there had been general agreement on this provision and it contained no square brackets, but some comments had been made on the provi-sion and so she opened the floor for discusprovi-sion.
18. Ms Carlson (United States of America) noted that the comments of her delegation could be found in Preliminary Document No 36. She stated that she supported the flexibil-ity provided by Article 42, paragraph 1, in allowing Central Authorities to work out who would do the translation and she wanted to increase this flexibility. She noted that the United States of America had an agreement with Norway that documents should not be translated into Norwegian in the United States of America, since it was preferable to do so in Norway or to just use the English version. She sug-gested, in the light of this, inserting “or generally” after “in an individual case” to allow for such agreements. She re-ferred to Article 42, paragraph 3, and stated that the rest of the sentence after the words “related documents” should be deleted. She noted that while the United States of America did not charge its own applicants for translation costs, it appeared inappropriate for the preliminary draft Conven-tion to be regulating the entirely internal procedures that govern the relation between the requesting Central Authori-ty and its own applicant.
19. Ms Lenzing (European Community – Commission) stated that in principle she supported the Article as it stood.
She stated that she did not have a problem with the amend-ment proposed for Article 42, paragraph 1, and noted that it seemed to make sense in the light of the example given.
She stated that she would have to consider the proposal for Article 42, paragraph 3, and its repercussions in a given case, and noted that her delegation reserved its position on this.
20. Ms Kulikova (Russia) stated that she would need to reflect further on the last proposal made by the Delegate of the United States of America.
21. The Chair stated that there were no objections to the
having general agreements with regard to translation and translation costs, and she asked the Drafting Committee to make that addition. She noted that there was no agreement on the suggestion regarding paragraph 3, and so it would remain as is for the time being.
Article 17
22. The Chair noted that this was an Article that had been the subject of long discussions, and agreement had been reached on the present wording so there were no square brackets in the text. She noted that the Drafting Committee had raised a question with regard to Article 17, paragraph 1, and she asked the Chair of the Drafting Com-mittee to explain the rationale for this question.
23. Ms Doogue (Chair of the Drafting Committee) noted that the question related to Article 17, paragraph 1, sub-paragraph (e), where there was an exception for agreements to jurisdiction when they related to children. She stated that the policy question was whether there should also be an exception for vulnerable adults.
24. The Chair opened the floor for discussion on Article 17.
25. Mr Hayakawa (Japan) stated that with respect to paragraph 6, his delegation had submitted Working Docu-ment No 29 which proposed the addition of a provision to the end of the paragraph as follows: “Any Contracting State may declare in accordance with Article 58 that it will not recognise and enforce a decision if the decision is or can be appealed in the State of origin.” He stated that his concern was that it would be difficult to recognise or enforce orders that were not final in the State of origin, and he noted that his delegation had included a rationale in Working Docu-ment No 29.
26. Mr Moraes Soares (Brazil) referred to the comments of Mercosur in Preliminary Document No 36. He stated that the Mercosur States had decided against including private agreements to establish jurisdiction as in Article 17, para-graph 1, sub-parapara-graph (e), because private agreements were contrary to public policy in some States and would make it difficult for them to recognise decisions made on that basis.
27. Mr Keith (United States of America) noted that the comments of his delegation in Preliminary Document No 36 were essentially points of clarification. He expressed sup-port for the substance of Article 17, paragraph 4, and stated that it would help to promptly establish an order. He stated that he would like to clarify that if a Contracting State was unable to recognise a decision then the authorities would proceed directly to establish one. He noted that in the Ex-planatory Report at paragraph 271, it was stated that States may wish to submit simultaneous applications for recogni-tion and enforcement and establishment if they think that the decision would not be recognised and stated that this contradicted paragraph 4 under which the State could pro-ceed without a fresh application. He stated that there was also a possible ambiguity in the last sentence of the para-graph and in the Explanatory Report where it seems that it would be necessary to make an application under Arti- cle 10, paragraph 1, sub-paragraph (d), where the applica-tion for recogniapplica-tion and enforcement was made directly by the applicant. He noted that this was entirely correct if the applicant wanted to go through the Central Authority for the establishment decision, but it was always open for the applicant to go directly to the competent authority. He asked that it be clarified that the applicant would not have to go back to the Central Authority. He referred to para-graph 5 and noted that the provision was to benefit a child
that had an order in another State, and the attempt was to make it clear that under the preliminary draft Convention that same child would be able to bring an action in the re-quested State even if the lex fori did not allow a child under the age of 18 to bring an action. He expressed concern over what establishing the eligibility of the child actually meant.
that had an order in another State, and the attempt was to make it clear that under the preliminary draft Convention that same child would be able to bring an action in the re-quested State even if the lex fori did not allow a child under the age of 18 to bring an action. He expressed concern over what establishing the eligibility of the child actually meant.