Yearbook of Private International Law

Transcription

1 Yearbook of Private International Law Volume II (2000) Bearbeitet von Eric Clive, Rui M Moura Ramos, William Duncan, Peter Nygh, Robert G. Spector, Tito Ballarino, Andrea Bonomi, António Marques dos Santos, Welber Barral, Tatiana Lacerda Prazeres, J H van Loon, Maria del Pilar Diago Diago, Paul Volken, Petar Sarcevic, The Swiss Institute of Comparative Law, Swiss Institute of Comparative Law 1. Auflage Buch. XII, 385 S. Hardcover ISBN Format (B x L): 16,5 x 24,5 cm Gewicht: 782 g Recht > Zivilrecht > Internationales Privatrecht schnell und portofrei erhältlich bei Die Online-Fachbuchhandlung beck-shop.de ist spezialisiert auf Fachbücher, insbesondere Recht, Steuern und Wirtschaft. Im Sortiment finden Sie alle Medien (Bücher, Zeitschriften, CDs, ebooks, etc.) aller Verlage. Ergänzt wird das Programm durch Services wie Neuerscheinungsdienst oder Zusammenstellungen von Büchern zu Sonderpreisen. Der Shop führt mehr als 8 Millionen Produkte.

2 YEARBOOK OF PRIVATE INTERNATIONAL LAW VOLUME II 2000 EDITORS PETAR ŠARČEVIĆ Professor at the University of Rijeka PAUL VOLKEN Professor at the University of Fribourg PUBLISHED IN ASSOCIATION WITH SWISS INSTITUTE OF COMPARATIVE LAW LAUSANNE, SWITZERLAND Sellier. European Law Publishers

3 Sellier. European Law Publishers ISBN Die Deutsche Nationalbibliothek verzeichnet diese Publikation in der Deutschen Nationalbibliografie; detaillierte bibliografische Daten sind im Internet über abrufbar Kluwer Law International und Swiss Institute of Comparative Law. für den Nachdruck 2007 Sellier. European Law Publishers GmbH und Swiss Institute of Comparative Law. Dieses Werk einschließlich aller seiner Teile ist urheberrechtlich geschützt. Jede Verwertung außerhalb der engen Grenzen des Urheberrechtsgesetzes ist ohne Zustimmung des Verlages unzulässig und strafbar. Das gilt insbesondere für Vervielfältigungen, Übersetzungen, Mikroverfilmungen und die Einspeicherung und Verarbeitung in elektronischen Systemen. Herstellung: Karina Hack, München. Druck und Bindung: AZ Druck und Datentechnik, Kempten. Gedruckt auf säurefreiem, alterungsbeständigem Papier. Printed in Germany.

4 Eric Clive III. IV. E. Recognition and Enforcement 1. Recognition a) Grounds on Which Recognition May Be Refused b) Supplementary Provisions 2. Enforcement F. Co-operation G. General Provisions The Difficult Areas A. The Nationality Jurisdiction B. The Concept of a Measure of Protection C. Medical Treatment D. Placements in Another Contracting State E. Mandates with a View to Incapacity Conclusion I. Introduction A. Need for the Convention A new Convention on the International Protection of Adults was recently concluded under the auspices of the Hague Conference on Private International Law. 1 It is designed to replace the Convention concernant l interdiction et les mesures de protection analogues signed at the Hague on 17 July The 1905 Convention has been ratified by only a few States. It is old-fashioned and little used. Further ratifications are unlikely. There is a clear need to replace it by a new Convention likely to appeal to a much wider range of countries. The number of adults suffering from some incapacity which prevents them from managing their own affairs is increasing. Such adults often have connections with more than one country. It is contrary to the interests of these unfortunate adults, and of the carers looking after them and of the public officials charged with their cases, if there are doubts and disputes on such matters as jurisdiction, 1 The Convention was drawn up by two Special Commissions which met at the Hague. The first (called here the First Special Commission) met from 3 to 12 September 1997 and prepared a preliminary draft. It was assisted by the work of an informal working group which had prepared a draft initial text for discussion and which was itself greatly assisted by a detailed draft text proposed by the Swiss delegation at the conclusion of the proceedings on the Children Convention of The second (called here the Second Special Commission) took the form of a Special Commission of a Diplomatic Character and met from 21 September to 2 October Thirty States were represented on the Second Special Commission by delegations and 9 States and organisations participated as observers. The Convention has already been signed by The Netherlands and officially bears the date of that signature 13 January The text of the Convention is published in this Yearbook, pp Yearbook of Private International Law, Volume 2 (2000)

5 The New Hague Convention on the Protection of Adults applicable law and the recognition in one country of measures taken in another. It is in the interests of all concerned if there are mechanisms in place for international co-operation. B. Background in Domestic Laws Part of the background to the Convention is that many countries have recently reformed their laws on the protection of such adults or are in the course of reforming them. 2 A common theme has been the abandonment of old rigid techniques such as interdiction and all-embracing tutory or curatory and the substitution of more flexible approaches designed to preserve the adult s legal capacity as much as possible and to confine interventions to the minimum necessary in the particular case. Another common theme has been the recognition that adults while capable may wish to make their own arrangements for their representation should incapacity ensue at a later stage in their lives. Many legal systems have accordingly made new provisions for enduring powers of attorney 3 or mandates with a view to incapacity. The powers of representation given by such techniques are generally subject to some control or supervision. The choice of law rules applying to normal powers of representation in the commercial field 4 are not necessarily appropriate to this new type of representation of an incapable person. C. Influence of the 1996 Children Convention The Hague Convention of 1996 on the protection of children 5 was influential in the preparation of the new Convention. This is not surprising. Many of the problems are the same and there was every reason to utilise solutions which had already been agreed. Many of the delegations consisted of the same experts who had drawn up 2 For the situation in Europe see the Council of Europe s Recommendation No. R (99) 4 on Principles Concerning the Legal Protection of Incapable Adults and the accompanying explanatory memorandum. 3 Terminology in English-speaking countries varies enduring powers of attorney, continuing powers of attorney, durable powers of attorney are all found. Sometimes a distinction is drawn between a continuing power, which was exercisable before incapacity and continues to be exercisable after incapacity and a springing power which springs into existence only when incapacity occurs. 4 For example, those contained in the Hague Convention of 1978 on the Law Applicable to Agency. 5 The full name of the Convention is the Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children. Yearbook of Private International Law, Volume 2 (2000) 3

6 Eric Clive the Children Convention. Accordingly the two Conventions are recognisably similar in structure and approach. In the debates on the Adults Convention it quickly became apparent, however, that there were important differences in the normal situations of children and incapable adults. In the case of children there is often a contest for custody and a real risk of conflicts of jurisdiction. In the case of adults the difficulty may be to find someone to take on the role of legal representative and there is little risk of a conflict of jurisdiction. Children rarely have sufficient property to cause legal problems. Adults often have. Adults may have made arrangements for their own representation after incapacity. This does not happen in the case of children. Parental responsibility, carrying extensive duties and rights, is in all legal systems conferred on parents, or some parents, by operation of law. Wide powers of representation in relation to incapable adults are not normally conferred by operation of law, although limited powers in certain restricted areas (such as consent to medical treatment) may be conferred on close relatives in some legal systems. II. Outline of the Convention A. General The Convention obliges Contracting States to introduce uniform rules on jurisdiction for matters within its scope, to adopt uniform rules on the law applicable to the taking and implementation of measures of protection and to mandates with a view to incapacity, to recognise and enforce measures from other Contracting States and to set up mechanisms for co-operation. What follows does not purport to be more than an outline, with selective comments. 6 The Convention itself contains important refinements and qualifications. An excellent detailed analysis of its provisions is contained in the Explanatory Report by Professor Lagarde 7 and there is no point in covering the same ground here. 6 Many of the comments are based on the personal recollections of the author. The Proceedings of the Special Commissions have not yet been published and do not always contain the full detail, particularly in the earlier stages. 7 A draft of which has been seen by the author. The text of the Explanatory Report is now available on the website of the Hague Conference at: 4 Yearbook of Private International Law, Volume 2 (2000)

7 The New Hague Convention on the Protection of Adults B. Scope 1. Persons Covered The Convention applies to adults who, by reason of an impairment or insufficiency of their personal faculties, are not in a position to protect their interests. 8 Adults are defined as persons who have reached the age of 18 years. 9 There was some discussion in the Special Commission about whether physical, as opposed to mental, impairment or insufficiency was covered. Attempts to clarify the matter were rejected but the answer is probably that physical incapacity which is not accompanied by any mental incapacity does not put a person into a position where he or she cannot take decisions, such as to seek help voluntarily or employ an adviser or agent, and thereby protect his or her interests. On human rights grounds, compulsory measures of protection would not be justified in relation to persons who have full decision-making capacity. The implication from the actual provisions of the Convention 10 is that it is concerned with those who lack decision-making capacity. 2. Matters Covered The Convention applies to the protection of the adults within its scope. 11 Matters not involving such protection are not covered by the Convention. So, for example, measures taken, not to protect the adult concerned, but to protect the spouse of the adult or a third party or the public at large are beyond the scope of the Convention. Article 3 contains an illustrative list of the type of measures of protection which fall within those provisions of the Convention dealing with measures. The list mentions almost all the types of measures found in contemporary legislation on adults with incapacity, from the traditional tutelle and curatelle to the more flexible tailor-made measures found in many recently reformed laws. Article 4 contains a list of matters to which the Convention does not apply. Some of the items in the list are of doubtful necessity because the Convention s rules on jurisdiction and recognition would probably not apply to them anyway 8 Art 1(1). 9 There is a special provision in Article 2(2) which enables measures taken in advance of the attainment of the age of 18 to be recognised and enforced under the Convention. Jurisdiction to take such measures in relation to a person under the age of 18 would depend on other laws and not on the Convention but, under article 22 (2) recognition of such measures could be refused if in fact the ground of jurisdiction founded on was not in accordance with the Convention s provisions. For countries that ratify the Children Convention of 1996 this will not pose a problem as habitual residence is the main ground of jurisdiction under both Conventions. 10 E.g. article Art. 1(1). Yearbook of Private International Law, Volume 2 (2000) 5

8 Eric Clive (either because they are not measures by a judicial or administrative authority 12 or because they are not measures of protection 13 or because they are not sufficiently related to an individual adult) 14 and because they are clearly not covered by the rules on applicable law. 15 Others are potentially important and, by excluding particularly sensitive matters where there are strong State interests, ought to remove hesitations about ratification. 16 An important provision 17 makes it clear that, even where a matter is excluded, the question of representation in relation to that matter is not excluded. So, for example, decisions on immigration are excluded but that does not mean that a measure appointing a representative for an incapable adult for the purpose of immigration proceedings is outside the Convention. It is implicit in the Convention that it is not concerned with measures of protection which have nothing to do with incapacity but which would be taken even in relation to a fully capable adult. Jurisdiction to grant an injunction against encroachment on property would, for example, depend on normal rules governing injunctions and not on the provisions of the Convention, even if the person whose property would be protected just happened to be suffering from an incapacity at the time. Jurisdiction to order payment of a debt would depend on ordinary rules even if the creditor was an adult with incapacity and the measure could be said to be directed to the protection of his or her patrimony. 12 E.g. maintenance obligations, succession, the formation of marriage or any similar relationship. The Convention s provisions on measures of protection apply only to measures by a judicial or administrative authority. They do not apply to measures by a legislative authority. Trusts are expressly excluded from the scope of the Convention but, as a trust would almost always be set up by a settlor, or in some cases by operation of law, and not by a judicial or administrative authority, the exclusion seems unimportant. 13 E.g. measures directed solely to public safety. 14 E.g. public measures of a general nature in matters of health. It is implicit in the rest of the Convention that a measure of protection must relate to an individual case. Only in such a case do the rules on jurisdiction, applicable law, recognition and enforcement make sense. See section III.B below. 15 A trustee, for example, is not a representative of the settlor and so trusts would also be outside the provisions of article 15 on powers of representation granted by an adult. 16 E.g. social security, measures taken in respect of a person as a result of penal offences committed by that person, decisions on the right of asylum and on immigration. 17 Proposed by Professor SIEHR of the German delegation and welcomed as a useful clarification of a point which had proved troublesome. 6 Yearbook of Private International Law, Volume 2 (2000)