Séance du mercredi 7 novembre 2007 (matin) Meeting of Wednesday 7 November 2007 (morning)
La séance est ouverte à 9 h 48 sous la présidence de M. Andrea Bonomi (Suisse) qui est également Rapporteur.
1. Le Président propose de reprendre les discussions et note qu’il y a encore une liste de questions devant être ré-solues. Il ajoute que la séance de l’après-midi sera consa-crée à la Commission I, et indique que c’est donc la der-nière occasion de trouver des solutions aux problèmes du Protocole. Il note à cet égard que deux clauses finales sem-blent poser problème et qu’il serait important d’obtenir l’aval de la Commission. Premièrement, l’article 14. À ce sujet, il note que lors de la réunion du mois de mai 2007, il n’y a pas eu de réaction d’opposition face à cette disposi-tion. Il explique que cette clause existe déjà dans la Con-vention de La Haye du 2 octobre 1973 sur la loi applicable aux obligations alimentaires. Il s’agit donc d’une clause standard. La dernière partie de la phrase figure cependant entre crochets ; elle prévoit : « dans la mesure où leur champ d’application coïncide avec celui du présent Proto-cole ». En ce qui concerne la Convention de 1973, dont le champ d’application inclut les adultes, il explique qu’il y a une coïncidence dans le champ d’application sauf en pré-sence de réserves. Par contre, en ce qui concerne la Con-vention de La Haye du 24 octobre 1956 sur la loi appli-cable aux obligations alimentaires envers les enfants, il n’y a pas de coïncidence puisqu’elle s’applique uniquement aux enfants.
Il propose donc d’éliminer les crochets, sous condition des réserves qui pourraient être décidées. Il demande aux délé-gations si elles s’opposent à la suppression des parenthèses.
The Chair gave the floor to Mr Segal.
2. Mr Segal (Israel) stated that he had missed some of the Chair’s explanation of Article 14 on how removal of the text in square brackets would affect the meaning of the Article. He queried whether, with the brackets removed, it would not only be understood that the Protocol replaced the Hague Convention of 24 October 1956 on the law applica-ble to maintenance obligations towards children, but would also suggest that a State was also Party to the Hague Con-vention of 2 October 1973 on the Law Applicable to Main-tenance Obligations. He added that with the square brack-ets removed, this would coincide with the purpose of the Protocol, one system, and that a State could not join the Protocol in terms of the 1956 Convention on children only.
3. The Chair clarified that if a State was already Party to the 1956 Convention and also ratified the Protocol, it would still apply the 1956 Convention vis-à-vis another State which is only Party to the 1956 Convention. Howev-er, if the same State ratified the Protocol and had an issue
with another State that had also ratified the Protocol, then the Protocol would apply to them both to settle the issue.
The Chair clarified that the text in brackets was a safeguard measure, aimed at avoiding conflicts in so far as the scope of application of the Conventions coincides with the scope of application of the Protocol. He added that if delegations felt that the text should remain in brackets because there were doubts about its meaning, they could come back to it later, and it would not hurt to do so when discussing Article 24 on reservations.
4. Mr Beaumont (United Kingdom) stated that Article 14 did not really apply to Israel because Israel was not Party to the 1956 and 1973 Conventions, and he therefore wondered why Israel was concerned in particular about this Article.
He added that the square brackets should be taken away.
5. The Chair asked the Delegate of Israel whether he was satisfied with the remarks by the Delegate of the Unit-ed Kingdom.
6. Mr Segal (Israel) expressed fear that if no reserva-tions were allowed under the Protocol, it could be suggest-ed that parts of the Protocol would apply to a State even if it was not Party to the 1956 Convention, which raised mat-ters of policy not interpretation. He queried what would happen in the case of States Parties to the 1956 Convention, and whether they would only follow that Convention, as opposed to States Parties to the Protocol which would only follow the Protocol.
7. The Chair noted that the 1956 Convention binds in an international obligation those States which are Party to it, and that obligation could not be suppressed by a new in-strument. He added that the 1956 Convention would con-tinue to apply to a State Party even if it ratified the Proto-col, just as the 1973 Convention applies to those States.
The Chair asked the delegations whether removal of the brackets would raise any problems.
8. The Secretary General suggested that the square brackets be kept for now until there had been an opportu-nity to discuss the scope of reservations.
9. The Chair suggested that the discussion move on to Article 26 on denunciations and noted that there were two options presented. He noted that Option 1 entailed denunci-ation of the Protocol through denuncidenunci-ation of the Conven-tion on child support and maintenance, while OpConven-tion 2 al-lowed every State Party to the Protocol to denounce it, as a logical implication of the choice made in Article 19. He expressed the view, however, that Option 2 was to be re-tained. The Chair asked the delegates whether they had any objections to Option 2 and gave the floor to the delegation of the Russian Federation.
10. Ms Kulikova (Russia) requested clarification on para-graph 2 in Option 2 of Article 26, and asked whether the text had been taken from another Convention. She added that the provision read as though a State could specify a longer period for the denunciation to take effect and asked where this phrase came from.
11. The Chair asked the Secretary General whether he would like to comment.
12. The Secretary General noted that this language was standard in Hague Conventions, such as Article 23 of the Hague Convention of 5 July 2006 on the Law Applicable to Certain Rights in Respect of Securities held with an Inter-mediary and Article 58 of the Hague Convention of 13
Jan-uary 2000 on the International Protection of Adults. He added that this language could serve, for example, to pro-tect ongoing litigation, and that this was the reasoning be-hind its inclusion in Option 2.
13. The Chair stated that if there were no other questions or objections, he would refer the point to the Drafting Com-mittee, requesting them to delete Option 1 and to keep Op-tion 2 in Article 26. The Chair noted that he would be in-troducing a slight modification to the agenda: discussion would not yet turn to Article 8 which raised some contro-versial issues, but rather Article 13 on non-unified legal systems which was not as controversial. He suggested that discussion could begin on a new Article 13, paragraph 3, and two options for Article 13 bis on inter-personal con-flicts, both of which had been prepared by the Permanent Bureau. He gave the floor to the delegation of Israel.
14. Mr Segal (Israel) stated that he had written a proposal for Article 13 which would be distributed later. He first addressed another matter, however: that of Article 13, para-graph 2, on conflicts of law in inter-territorial units and how this took into account Article 2. He stressed that if a State was applying the Protocol, territorial law would still apply. He added that if the Permanent Bureau’s proposal was based on the text as it existed now, he did not see the need for the new paragraph 3. He stated that if there was a need for the text in paragraph 3, it appeared to be covered in Article 13 bis, Options 1 and 2. He stated that he pre-ferred Option 1.
15. The Chair asked the Delegate of Israel if he had a written proposal.
16. Mr Segal (Israel) stated that it was necessary to wait for it as he had only submitted it that morning for printing.
17. The Chair asked if there were any reactions.
18. Mr Lortie (First Secretary) explained that the Perma-nent Bureau’s proposal in Working Document No 7 ad-dressed inter-territorial conflicts in the new paragraph 3 of Article 13 and inter-personal conflicts in Options 1 and 2 under Article 13 bis. He recalled that the Delegate of Israel wondered whether this new paragraph 3 was necessary. He explained that for common law judges the existing text might be acceptable as they could infer from the existing text, but that for civil law judges that go by the letter of the law the new paragraph 3 would be needed. He added that paragraph 1 of Article 13 only gave a reading for multi-unit States but did not help with the applicable law, there-fore paragraph 3 would provide such a rule for judges es-pecially in the civil law tradition. He noted that Article 48 of the Hague Convention of 19 October 1996 on Jurisdic-tion, Applicable Law, RecogniJurisdic-tion, Enforcement and Co-operation in Respect of Parental Responsibility and Meas-ures for the Protection of Children provides this rule. He expressed hope that this would answer the concerns the Delegate of Israel had expressed about territorial conflicts, adding that the Commission should wait for reactions on the inter-personal conflicts proposal.
19. The Chair proposed to continue to use the agenda as proposed the day before, including any open issues on Arti-cle 8. He suggested that a further discussion of ArtiArti-cle 5, with a proposal by the delegation of Switzerland, would be premature today and should take place the following week when a written proposal from that delegation was available.
The Chair also suggested keeping the question of the appli-cation of Article 6 to partnerships open and to keep ques-tions on that Article for the next week. The Chair suggested
focusing on Article 8, then Article 4, and to link the pro-posal from the European Community for an Article 8 bis on nationality and domicile. The Chair gave the floor to the delegation of Switzerland.
20. Mr Markus (Switzerland) noted that his delegation would make a proposal on Article 5 and that it would be available this morning.
21. The Chair observed that there were still a number of issues on the table on Article 8. There were objections to Article 8, paragraph 1, sub-paragraphs (c) and (d). He noted that the European Community had submitted Working Doc-ument No 6 in which they suggested adding to Article 8, paragraph 1, sub-paragraph (a), a reference to “domicile” in the common law sense. The conditions regarding vulnera-ble adults were still open as well as the safeguard clause of Article 8, paragraph 4, in the preliminary draft (which would become Article 8, paragraph 5, since the proposed introduction of a new Article 8, paragraph 4, had not been objected to). He noted that a proposal for a new Article 8, paragraph 5, came from Working Document No 5 from the European Community, which added “[…] unless it is estab-lished that at the time of the designation the parties were duly and fully informed of the consequences of their desig-nation”. He added that there were two footnotes for discus-sion in Article 8: footnotes 3 and 4. He observed that foot-note 4 was dealt with by the European Community in its pro-posal concerning the safeguard clause and that footnote 3 dealt with choice of law matters. He suggested that the issues could be covered one after another.
22. Mr Funabashi (Japan) observed that his delegation was concerned with the proposal by the European Commu-nity for Article 8, paragraph 1, sub-paragraph (a), in Work-ing Document No 6, and in particular with the word “domi-cile” because if the issue came up in a country which did
23. The Chair queried whether there were any comments on providing such examples in relation to the notion of
“domicile”.
24. Mr Lixiao (China), commenting on the intervention by the Delegate of Japan, noted that including the notion of domicile in the Protocol, as proposed in Working Docu-ment No 6 from the European Community, would indeed cause problems in some countries if they did not have this concept in their legal systems. He added that when a court in China decided such a matter it considered nationality and so therefore there might be another solution, such as pro-viding examples in the Explanatory Report of circumstanc-es in which nationality should be used instead of domicile.
He stressed that if the concept of domicile was included in the Protocol it would be difficult for some countries.
25. The Chair gave the floor to the delegation of the United Kingdom.
26. Mr Beaumont (United Kingdom) thanked the Chair for the floor and the delegation of Japan for their sugges-tions. He noted that Article 8 was the only time States would have to deal with the issue of domicile as a connect-ing factor because it was not included in Article 6. Parties could choose between habitual residence, nationality and domicile. He noted, however, that cases where the domicile
Procès-verbal/Minutes No 4 Procès-verbal/Minutes No 4 I-175 issue would arise would be rare but would be very
im-portant for some States. He observed that common law countries would tend to rely on habitual residence but that civil law countries would rely on nationality. He added that domicile could be useful in some cases, that it would be a liberal approach to the law regarding maintenance obliga-tions, and that wider devices are good. He noted that an explanation could be included in the Explanatory Report for those rare cases where someone would have neither a habitual residence nor nationality. He also noted that in some cases it would be quicker to determine domicile than habitual residence; it would not require months. He noted that it would be clear to say maintenance obligations use the law of the country; one would not have to look for an agreement to determine domicile. He concluded by observ-ing that Article 8 bis was clear for countries not familiar with the concept of domicile, such as China and Japan, and also for those that are.
27. The Chair gave the floor to the Deputy Secretary General.
28. The Deputy Secretary General stated that he had questions for the delegation of the United Kingdom. He queried that if a State was considering domicile under Arti-cle 8 bis and a Japanese court was reviewing a case and suggested that the connecting factor was domicile, and that if domicile is interpreted differently in different legal sys-tems, under which law would the Japanese courts decide the issue of domicile?
29. Mr Beaumont (United Kingdom) responded that this could work the same way as with nationality.
30. The Deputy Secretary General responded that if the issue arose of habitual residence a court could apply its own interpretation but there was a lacuna with the concept of domicile because many countries do not have a defini-tion for it.
31. Ms Albuquerque Ferreira (China) observed that some countries did not indeed have a concept of domicile and that in some regions there may be four or five interpreta-tions of it. She added that it would be difficult to accept this concept in a Protocol that has the objective of being simple, when it will in fact lead to different interpretations of concepts such as domicile. She observed that the concept of domicile would be difficult in Macau with complicated issues of residence and nationality, but that neither nation-ality nor domicile would be useful on the matter of mainte-nance.
32. Mr Beaumont (United Kingdom) responded to the Deputy Secretary General by pointing out that the law of nationality was controversial, and that many States would apply their internal law without taking into account other systems. He added that nationality is a difficult matter for maintenance, much as the concept of domicile is, because most States are unfamiliar with the nationality laws of other States. He observed that it is difficult to know if someone is really Dutch or Swiss, for example, and that dual nationals were a whole other matter. He stated that having lots of questions about domicile was therefore not a convincing reason to have objections to it.
33. Le Président note qu’il n’y a pas d’accord sur la question et qu’il faudra donc y revenir plus tard.
The Chair queried whether delegations insisted on their objections to Article 8, paragraph 1, and in particular
sub-paragraphs (c) and (d). He gave the floor to the delegation of Switzerland.
34. M. Markus (Suisse) indique que sa délégation est toujours réticente vis-à-vis des alinéas (c) et (d). Par contre, il constate que leur réticence n’est pas partagée par la Com-mission. Il rappelle qu’hier, le Délégué de la Suède a expli-qué que les cas qui préoccupent la Suisse sont très rares en pratique. Par voie de conséquence, il indique que sa déléga-tion est prête à lever ses objecdéléga-tions sur le texte présent.
35. Le Président remercie la délégation de la Suisse pour leur intervention. Il interroge l’assistance pour savoir si d’autres délégations ont des réticences par rapport aux ali-néas (c) et (d) de l’article 8, paragraphe premier. Devant l’absence d’intervention il estime que les alinéas (c) et (d) seront maintenus comme tels. criteria in some new way and that it was a matter of draft-ing to regroup the criteria or to link the matrimonial proper-ty regime to divorce.
37. The Chair referred the matter to the Drafting Com-mittee. The Chair stated that a remaining issue was raised by the choice of law for matrimonial property, divorce or separation. He observed that many jurisdictions admit the choice of law for matrimonial property but that this was not so frequent for divorce and separation. He added that occa-sionally the choice of law for divorce and separation, and even matrimonial property, would not be considered valid ac-cording to the private international law of the forum. In this case, the choice based on Article 8 would also be invalid.
He queried whether this should be included in the Explana-tory Report. He noted that in fact the matter was already in the Report, but he stated that he wanted to make sure that the Report reflected the position of the Commission.
The Chair next raised the issue of vulnerable adults and under what conditions they should be included in Article 8.
The Chair requested reactions to the European Community proposal in Working Document No 5, paragraph 3, sub-paragraph (b). He noted that Article 8, sub-paragraph 1, would be discussed along with Article 4, further to a discussion yesterday on objections to the age of 18. He gave the floor to the delegation of Switzerland.
38. Mr Markus (Switzerland) noted that his delegation was reticent regarding the proposed paragraph 3, sub-paragraph (b), which had already been expressed yesterday.
He stated that the problem lay with whether the law should be the law applicable to the representatives of vulnerable adults. He added that if there was no conflict of interest
He stated that the problem lay with whether the law should be the law applicable to the representatives of vulnerable adults. He added that if there was no conflict of interest