By Rick Mitry
Here is a matter which is of high importance to the Republic of Lebanon which has unfortunately been a subject of some delay, and which I have been discussing with the Secretary-General of The Hague Conference on Private International Law, Dr Christophe Bernasconi.
The Hague Conference on Private International Law is a preeminent body operating under the auspices of the United Nations. It forms an intergovernmental organisation whose purpose is to “work for the progressive unification of the rules of private international law” (Statue, Article 1). Formed in 1893, The Hague Conference provides an avenue for international judicial and administrative co-operation in the area of private law, with particular achievements in the field of civil procedure, commercial law, and jurisdictions of courts.
There are eighty-two nations which are members of The Hague Conference who meet once a year at The Hague in the Netherlands. Membership of the Conference allows for the facilitation of trade, commerce and legal relations between the members in an effort to respectfully coordinate diverse legal relations whilst maintaining a high degree of legal security.
There are a number of conventions which comprise the Conference. These multilateral legal instruments seek to harmonise global legal traditions and achieve a unification of private international rules. This is achieved through negotiating global approaches to matters including the jurisdictions of the courts, applicable law and the recognition and enforcement of judgments. In the years between 1951 and 2008, The Hague Conference adopted 38 International Conventions. Examples of these include the Convention on International Access to Justice, the Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, and the Convention on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters. These have had significant influence on legal systems in both Member and non-Member States.
Dr Christophe Bernasconi, the Secretary-General of The Hague Conference on Private International Law recently gave a lecture in Sydney on The Hague Conference, it’s main Conventions and Instruments, ongoing work and relevance to Australia. Papers were also given by His Honour, Mr Justice Robert McDougall (‘The Importance of Private International Law in Australia’), Mr Ian Coleman SC a former Appeal Court judge of the Family Court (‘The Impact of Private International Law on Australia’s Family Law’), Ms Sandrine Alexandre-Hughes barrister (‘Practical Illustrations of Selected Hague Conventions Assisting International Families’), and Mr David Hughes barrister (‘The Hague Convention on Service Abroad, taking Evidence Abroad and Apostilles’).
The process towards Lebanon becoming a Member of The Hague Conference has already been started in 2009 but not yet finalised. This matter must be addressed by the Head of State (President), Head of Government (Prime Minister) or the Minister of Foreign Affairs. Briefly, the history of what has occurred so far, is as follows:
In November 2009, Lebanon requested Membership of The Hague Conference on Private International Law by sending a letter to the then Minister of Foreign Affairs of the
Netherlands. On 13 November 2009, the Ministry of Foreign Affairs of the Netherlands wrote to the then Secretary General of The Hague Conference, Mr Hans van Loon, proposing the Republic of Lebanon as a new Member. The letter was written in French and a copy has been supplied to the writer as have all the letters mentioned in this article.
On 23 November 2009, the Secretary General writes to the then Member States of
The Hague Conference, inviting them to vote on the proposal to admit Lebanon as a Member. The voting period, which runs for 6 months, occurred from November 2009 to May 2010. The Secretary General wrote to the Ambassador of Lebanon alerting him of this occurrence.
On 28 May 2010, the voting returned a positive vote and Lebanon became an ‘admitted State’. At that date, Lebanon was invited to deposit an instrument of acceptance of the Statute of The Hague Conference. Lebanon is informed that on the day it deposits this instrument, it will become a Member State of The Hague Conference. The Secretary General sent a letter to the Ambassador of Lebanon with this invitation.
On 11 January 2012, the Secretary General of The Hague Conference sends a first reminder letter to the Ambassador of Lebanon seeking an instrument of acceptance of the Statute.
On 26 November· 2012, the Secretary General of The Hague Conference writes to the then Prime Minister of Lebanon, Mr Najib Mikati, inviting Lebanon again, to deposit an instrument of acceptance of the Statute in order to become a Member.
On 25 November 2013, another reminder was sent by the Secretary General of The Hague Conference to the Charge d ‘affairs a. i. about the outstanding acceptance of the Statute. The reminder further extended an invitation to Lebanon to attend, as an observer, the yearly meeting of the Council on General Affairs and Policy of The Hague Conference.
As an admitted member of The Hague Conference since May 2010, Lebanon has always been invited, as an observer to the yearly meeting of the Council. With each invitation, Lebanon has been reminded of the need to provide an instrument of acceptance of the Statute to complete the process towards becoming a Member. Naturally it is understandable that with the instability of the political situation over the news, there has inevitably been a delay in finalising Lebanon’s membership.
In light of the many years that have passed since the vote of 28 May 2010, approximately seven years (which is quite exceptional in the history of the Organisation), The Hague Conference is eager to finalise the process and to finally welcome the Republic of Lebanon as a new Member.
Lebanon has participated, as an observer, in three Diplomatic Sessions including an Extraordinary Session of 1985 on the law applicable to sales contracts, the Session of 1993 which finalised the highly successful Intercountry Adoption Convention, and the Session of 2001 which adopted the final text of the Convention of 5 July 2006 on the Law Applicable to Certain Rights in Respect of Securities held with an Intermediary (the first finance law instrument adopted by The Hague Conference). Lebanon also participated, as an observer, in the Council meeting of 2011.
A Member State has absolutely no obligation to join any specific Conventions. In other words, when Lebanon becomes a Member State of The Hague Convention it will remain in
full and sole control over The Hague Conventions it wants to join, including the Family Law Conventions. Thus, there is no need for Lebanon to file a declaration of the sort they may be thinking about at the time they become a Member. Accordingly, Lebanon can become a Member and then decide freely when to join which treaty. They are under no obligation whatsoever to join any of the Family Law Conventions.
In the 1980s, I founded a local chapter of the International Association of Lions Clubs (which is a highly esteemed organisation in Lebanon) as well as the Australian Lebanese Chamber of Commerce which continues to operate strongly today. I also had the honour of working with the late Prime Minister Rafic El-Hariri over a number of meetings with him and his then Treasurer Mr Fouad Siniora, when I visited Lebanon with parliamentary delegations and a community group from Australia. In l 995, I proposed to the late Prime Minister that as Lebanon had only entered a Double Taxation Treaty with France, it should perhaps consider entering such treaties with Australia and other countries. He immediately asked Mr Siniora to arrange a meeting with me which we had on the same day. At that meeting, I canvassed possibilities and the procedures of such treaties with other countries. Lebanon has now entered 35 Double Taxation Treaties. I have also published papers on Business Law of the Middle East and a booklet on ‘Doing Business in Australia’.
I am strongly convinced that Lebanon’s membership of The Hague Conference will benefit Lebanon more than the benefit they have derived from entering to Double Taxation Treaties above. I am aware, before of my past experience, of the bureaucratic and legislative difficulties involved in setting up such international agreements however I am also aware that they can be overcome.
Lebanon could deposit its instrument of acceptance of the Statute during a Meeting of the Council on General Affairs and Policy (one just took place in The Hague on 14-16 March 2017). Submitting the document at this Meeting, in front of the Members of The Hague Conference will highlight the importance of this development and provide an opportunity to address the Council directly of the importance of the Membership for both Lebanon and The Hague Conference. I am aware that Ms Abir Ali, the Charge d ‘affairs a.i. (there is not yet an Ambassador from Lebanon appointed to the Netherlands) has been requested to make a new submission to the Lebanese government. I hope that this will be attended to with the priority it deserves.
If any reader would like more information on this matter, they may contact the writer via my email address email@example.com or my executive legal assistant firstname.lastname@example.org.