Gujarat National Law University
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Director(Vice-Chancellor) Speeches & Important Messages

"India's participation in the Hague Conference on Private International Law is immensely beneficial to the country, its citizens, NRI and PIO communities", Inaugural address at the GNLU Centre on Private International Law, GNLU, Saturday, 10 April 2010.

Dear Honorable Mr Justice Jayant Patel, Gujarat High Court, Professor Laxmi Jambholkar, Advocates Shri Anil Malhotra, Ranjit Malhotra, faculty members of national law universities, law colleges of Gujarat, GNLU faculty and staff members and students.
It gives me great pleasure in welcoming Honorable Mr Justice Jayant Patel and distinguished guests to the launching of the GNLU Centre on Private International Law. I thank Professor Rhishikesh Dave, Centre Director, Professor Uday Ramakrishnan, members of the Organising Committee for their commitment, efforts and organisation of the workshop. I am truly elated to address this gathering as establishment of this centre is a dream coming true. The dream to have a platform where stakeholders concerned with the issues of family law, commercial and judicial cooperation to serve the entire country, the Indian citizens, NRI and PIO community, is being realised through this centre.
The address examines the history, costs and benefits for the membership of India in the Hague Conference on Private International Law and ratification of some of the Hague private international law conventions.

Why India had not been a member of the HCCH for long time?

India is a member of UNIDROIT and UNCITRAL, [1] however, it was not a member of the HCCH. Although the mandates of these three institutions compliment, it begs an explanation why India had waited for a long to become a member of the HCCH till 2008.
The literature surveyed indicate that a systematic concerted focus within India was lacking regarding the role of the HCCH in facilitating the resolution of the commercial, judicial and family law related problems with international dimension. Since late 1990s, two significant developments have occurred; namely, India’s drive to harness the potential which its non-resident Indians can provide in terms of financial, commercial, trade, cultural, social and political aspects and secondly, a concerted and coordinated approach by the HCCH to encourage India to become a member of the HCCH. While the first development has significantly motivated India to play a catalyst role in terms of resolving problems faced by the NRI community and exponentially growing Indian commercial interest abroad, the second development comes as a compliment in terms of providing a platform which can help India to achieve this aim. While the membership issue had been lacking attention, the calls for adhering to some of the Hague Conventions were made by the highest judicial organ of India, namely, the Supreme Court of India, on a regular basis since long time. However, the highest judicial organ’s calls were more prominent in the areas of family laws.

Current membership related facts and its relevance to Indian membership

From Asia, China, Israel, Jordan, Japan, Malaysia, Republic of Korea and Sri Lanka are members of the HCCH. India stood out as an odd man in this respect. India has sizeable NRI Community in the Commonwealth member States of which Australia, Canada, Cyprus, Malaysia, Malta, New Zealand, South Africa, Sri Lanka and UK are members[2]
In Asia, Japan cherishes the longest and active relationship, being a member since 1904. Some of the important highlights of Japanese membership are noteworthy lessons: Japan, since it sent its first delegation in 1904 has played an active role in the development and functioning of the HCCH. It enacted a code on private international law in 1898. Anticipating the growing role in the business, civilian and family matters, Japan embraced timely initiatives at the HCCH and at home to cater the needs of these communities. Until 4th session in 1904, only European states participated in the Hague negotiations. Realising the intensification of relations with the Western Europe, in particular, it realised the Hague Conventions would apply to Japan and undertook necessary measures. Japan has been thus uniquely placed in Asia to play an important role in multilateral legislative efforts. Japan was the only non-European state to co-found the new structure of the organisation of the HCCH in 1955. It is logical that there are and will be some obstacles standing in the way of the application of the Hague conventions to India but these may be overcome over a period of time as seen in case of Japan. In order to plausibly claim its share in the multilateral legislative efforts in this area, India was lacking to play an active part.
India has certain characteristics of its law, particularly in the area of family laws. In fact, this is the area where the Hague Conventions are ought to play a most useful role in facilitating the resolution of family problems of millions of Indians living abroad and who have strong family, social, cultural and financial ties back home. India, by advocating its unique family law system, can adhere to some of the important conventions and can propose in future legal instruments which can meet the growing demands for the resolution of family-related problems of NRIs. Without an active membership, it would have been difficult for India to meet the increasing demands in this area of family laws.
While countries like Japan have frequently sent its experts and delegates to the negotiations and discussions of the Hague conventions the fact remains that India is lagging far behind in this respect. It is through consistent presence and participation in multilateral forum of great importance like this one that India can substantially enhance its potential of global influence. China sends a representative from each of the three parts of the country, Mainland China, Macau and Hong Kong. Two great nations of Asia has steadily shown growing interest in the work and functioning of the HCCH, India, from foreign policy perspective too, should do the needful.
Currently, Japan has a rapporteur on the Convention on the Intermediaries of Securities and the Choice of Court Agreements and Recognition and Enforcement Convention. China is chairman of the Informal Advisory Group on the Admission of the European Community as a member of the HCC.
The process of interconnectedness between societies is growing worldwide and if we add the element of enormous increase between NRIs and Indians at home, the proposition is quite intense. The process is ought to bring the societies even close further, thus, it would be within the principle of good governance that India’s master stroke by joining the conference would make most useful contribution in this respect.
As Secretary-General, Mr van loon had to say, for the rapidly expanding range of cases involving private international law, it will come with insecurity, risk and injustice – unless there is a firm resolve to apply and further develop the instruments needed in response to these issues, which include the Hague Conventions, with full sensitivity to the concerns of all legal cultures.[3] With membership, India together with other great nations of the continent can show the leadership in providing indispensable tools for legal coordination and cooperation.

Long-term advantages

I believe that with the membership India can harness a number of short and long-term advantages by becoming a member of the HCCH.
India can steer the policy of the HCCH from content and procedural point of views, the option which was unavailable to her and can decide work program together with other member states. Let me give you an example: HCCH is currently working on a Convention on Choice of Court Agreements and Recognition and Enforcement of the resulting judgments. There exists no global treaty for court judgments (we have New York Convention of 1958 on the recognition of arbitral awards in force for over 130 states including many commonwealth states and India). Indian companies, in particular smaller and middle-sized enterprises, would benefit considerably if they had the triple certainty that (1) the court designated in their contracts would effectively hear their case in the event of a dispute (2) all other courts would in principle decline or suspend jurisdiction, and (3) the resulting judgment would be recognised and enforced worldwide. When India is encouraging such size companies, this is a welcome development. India can actively participate to bring its input in this global judicial regime of commercial importance. India is moving towards globalisation, the giant corporations of India can seek legal assistance from expensive legal firms but small/medium business houses who can perhaps not afford costly legal firms may find some relief under this Convention in the future.
India can rightfully ask the HCCH to provide a comprehensive world-wide practice in particular area of private international law, let’s say family law. The results obtained can be transmitted to all courts at all levels. One can imagine that this can contribute to facilitating the efficiency and economy of case-load in family law matters. Since many of the cases can be in this area having private international law elements, parties may get proper substantive justice because the judiciary will have its disposal all necessary information.
India can convene under the HCCH auspices meetings dedicated to discuss a particular problem. This option was not available to India earlier.
India can ask the HCCH Bureau to produce publication of practical handbooks and good practice guides, creation of databases on particular issues (like the one the HCCH has on the Hague Child Abduction Convention).
India can ask for creating a special commission. For example, the HCCH has an expansion of the concept of monitoring special commissions to meeting of judges from state parties to review, on the basis of hypothetical cases derived from practice, the application of the convention by courts – which has in turn led to the publication of a biannual judges’ newsletter.
India can ask the HCCH to organise joint conference in the region for regional problems, for example, in March 2004, the HCCH and Malta jointly organised cross-frontier family law issues which was attended by top ranking judges and government officials from Mediterranean as well as representatives from the EC. The HCCH is planning to organise special commission on the practical operation of the Hague Inter-country Adoption Convention as well as the Child Abduction Convention. India can take active part in the special commissions to oversee the practical operations by signing the Convention and by becoming an active member of the HCCH.
To help find resolution of family related problems, India together with its NRI sizeable countries such as USA, UK can have a permanent forum to discuss the issues.
HCCH is embarking on studying (and hopefully preparing the convention) on complex questions of jurisdiction, applicable law and enforcement of judgments regarding international e-commerce transaction. Needless to say, India holds great potential in terms of e-commerce within and outside its borders. By participating, by steering the agenda of such an important instrument, India can ensure her interests are protected for future as well.

International legal cooperation and litigation

The Hague Convention of 5 October 1961 abolishing the requirement of legalisation for foreign public documents is the most widely adhered to Hague convention among commonwealth jurisdictions. The Convention completely abolishes diplomatic or consular legalisation as required by many, in particular civil law countries, and introduces a single check, the addition of a certificate, apostille, by a designated authority in the country where the document was issued. The Convention is ratified by Antigua and Barbuda, Australia, Bahamas, Barbados, belize, Botswana, Brunei Darussalam, Cyprus, Dominica, Fiji, Grenada, Lesotho, Malawi, Malta, Mauritius, Namibia, New Zealand, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines, Samoa, Seychelles, South Africa, Swaziland, Tonga, Trinidad and Tobago and the UK.[4] The ratification of the Convention is useful to the civilian as well as to governmental departments particularly the Ministry of External Affairs. In the days when there are no missions of India in some of these countries[5] and in the days when the staff of diplomatic missions may be overburdened with other consular issues, this ratification is able to alleviate the sufferings of individuals and institutions alike, administrative and financially.

International commercial and finance law

The Intermediary of Securities Convention facilitates the international flow of capital and access to capital markets and will be beneficial to states at all levels of development. Financial institutions, investors and local financial markets all over the world are increasingly part of a global market place where trillions of dollars worth of interests in securities is traded everyday. These securities are generally held, transferred and pledged through electronic book-entries maintained by intermediaries. Despite this huge global market place, different legal systems still treat the account holders’ rights differently, which leads to legal uncertainty, and hence costs.
HCCH is working on the new convention to reach out the needs for judicial cooperation system for business transactions. India with its ever-increasing business activities abroad and internally too, ought to partake in the negotiations of this convention. The government by providing legal infrastructure in a coordinated fashion with other countries in this area will grately boost the chances of benefits to be reaped from the business boom but also will eliminate the legal problems that the increased business transactions entail. Indian membership in the HCCH and corresponding role can now immensely enhance the facilitation of resolution of difficulties involved in this area of commercial interests.

International protection of children, family and property relations

India like number of other countries is facing an increasing challenge to respond to the problems of globalisation – a phenomenon generated largely by forces beyond government control. By becoming a member of the Conference and adhering to several important conventions, India will now get useful assistance in making commercial and financial dealings, as well as international family relations more predictable, thereby reducing transaction costs and providing stability and peace to human relationships.
All the Hague conventions, 35 so far are gaining greater importance due to the increase of cross-border transactions and international family relationships, i.e. globalisation.
HCCH existence has contributed to the progressive unification of the rules of private international law as well as to the renovation of the rules on private international law in each nation. Indian judiciary and legislature, in a concerted fashion, can carry out the review and revision of its system of private international law to make it a useful and meaningful judicial tool in the era of globalisation.

Other benefits:

In addition to the above examination of the long-term advantages, there are some on-going advantages which India is able to harness as a member state of the organisation.
Monitoring of the Conventions: By becoming an active member now, India can influence how the Hague Conventions are being monitored, can contribute to the new methods of monitoring keeping in view its interests and needs; can suggest new conventions or regulations; can ask HCCH Bureau to suggest the solution of particular problems; get useful know-how from other judiciaries. Earlier, the lack of membership limited the reach to these potential advantages and means of influence. For example, to understand the practices or identify solutions across the globe, the relevant governmental departments may be required to spend huge resources and even then, it is not sure whether spending of financial and human resources can ensure practice and knowledge of all judiciaries. By becoming a member, these advantages can be now tapped at relatively low costs.
There is no one clearing house where India can put its request, with the HCCH, India can request and can get a comprehensive answer to its query and can select the best practice from all available practices.
India can hold workshop together with the HCCH in each of the three main areas of private international law, commercial, judicial and family law matters to identify the compatibility of Indian laws with the proposed or existing conventions, to work out the modus operandi for the conventions at national and regional level.

Challenges including cost of becoming a member

According to one estimate, India had to pay approximately 75,774 euros as assessed contribution to the HCCH every year and one-time payment of around 8,000 euros in the Revolving Fund of the HCCH. In comparison to other international organisations, this sum, I believe was modest. Moreover, in the case of other intergovernmental organisations, the government is the sole beneficiary but in this case the judiciary and executives and civil society at large will be direct beneficiaries and in areas of family laws, individual Indian families across the world will be benefited.
It goes without saying an effective implementation of some of these conventions will require elaborate national mechanisms, the Convention on Divorces and Legal Separations, Inter-Country Adoptions and Services of Summons abroad are prime examples of this task. The national mechanism can be the focal point between the several governmental departments, including the departments in individual states of India, and internationally with the HCCH and other relevant international organisations.

Indian membership and enhanced legal cooperation and benefits among Asian countries

India can hold number of regional workshops providing an important legal platform to Asian states. India, with the presence of Africa Asian Legal Consultative Organisation (AALCO), platform for HCCH and the sound legal infrastructure, can become the Asian capital of law. Such workshops can discuss various aspects of the proposed or existing conventions. Earlier, India could do this but whether it was able to generate sufficient interest was uncertain. With the presence of international platform, it can provide excellent avenue for the resolution of legal issues. It is possible that some countries from the region cannot participate due to among others economic reasons in the discussions and negotiations of the HCCH conventions. India, by taking lead, can host a series of workshops and even meetings with these aims in mind and can provide avenue to the needy Asian countries.
In organising various seminars and workshops, a synergy of efforts, expertise and interests of bar associations, universities, private sources, can be tapped for a coherent understanding and strategy. In view of the importance stake, all interested actors may come together to discuss the issues and bring it to the attention of relevant national and international actors to prevent any adverse effects on this area of growing business interest.
The judicial newsletter prepared by the HCCH is published and distributed by Butterworths at their cost to more than 350 judges, practitioners and other interested parties around the world. This bi-annually newsletter is designed to promote cooperation, communication and the exchange of ideas between judges and others who deal with international child protection cases. I request this Centre on Private International Law to see through that the same newsletter can be circulated among the Indian judiciaries which can also actively contribute to the exchange of ideas and views on these cases.
With regards to the fate of helpless wives deserted by their NRI husbands and surrounding matrimonial disputes, the highest court has virtually implored that “the legislature should awake, arise and act if not for relieving the confusion caused by differing systems of conflict of laws, as the British parliament did from time to time, based on need.”[6] On other occasions, the Judges from the Supreme Court has either appealed or called upon the government to look into the adoption of the Hague Convention of 1960 on the recognition of divorces and separation.
The Indian Society of International Law in its report, assigned by the Ministry of External Affairs of India regarding the private international law issues affecting NRIs, has underlined the need to introduce suitable legislative measures incorporating the Hague conventions relating to the recognition of the validity of marriages and of divorce and legal separations, maintenance obligations and matrimonial property regimes.
India’s membership can now attract other members from Asia in general and South Asia in particular with whom India has closet legal, political, commercial and social ties.
Finally, a distinguished academician of Japan, Dr Yamada said in 1905 that Japan must join in the Hague conference so as to participate in the unification project of rules on private international law. [7] The case for the membership of India in the HCCH was louder and India did become a member. Now it is the task of academic institutions like this one to work on the unification project of rules on private international law.
I wish the Center all the best and hope that it caters to the needs, concerns and interests of the country and its citizens in this important area of law. Thank you.
Bimal N. Patel,
[1] India became a member of the UNIDROIT on 26 September 1950. By virtue of its membership in the UN, India is a member of the UNCITRAL. India became a member of the Hague Conference on Private International Law on 13 March 2008. The author advocated for the membership of India to the Hague Conference for several years. This paper substantially draws information from his paper presented at the Indian Society of International Law Conference, New Delhi, in 2004.
[2] According to one estimate, there are more than 4,961,300 people of Indian origin and/or Indian citizens living in these countries. Source information does not provide the statistics for Sri Lanka. Source: Report of the High Level Committee on the Indian Diaspora, Ministry of External Affairs, Government of India (2002). The same report mentions presence of around 20 million people of Indian origin abroad.
[3] Speech of Mr Hans van Loon, Secretary-General, HCCH on the occasion of the centennial of the participation of Japan in the HCCH, 23 September 2004.
[4] India, Bangladesh, Cameroon, Canada, Guyana, Jamaica, Canada, Kiribati, Malaysia, Maldives, Mozambique, Nauru, Nigeria, Pakistan, Papua New Guinea, Sierra Leone, Singapore, Solomon Islands, Sri Lanka, Tanzania, Tuvalu, Uganda, Vanatu and Zamiba have not signed the Convention.
[5] According to the records on the official web-site of the Government of India, there are no Indian missions in the following members of the Commonwealth: Antigua and Barbuda, Bahamas, Barbados, Belize, Dominica, Fiji, Grenada, Lesotho, Malawi, Malta, Mauritius, Namibia, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines, Samoa, Seychelles, Tonga. According to the Second Diaspora Report, there are around 1,060,275 people of Indian origins and(or) Indian citizens in Barbados, Dominica, Fiji, Mauritius, Namibia, Saint Lucia, Saint Vincent and the Grenadines and Seychelles. The data on the Indian population for the rest of the Commonwealth members where there are no missions of India are not given in the report.
[6] Smt. Satya vs. Teja Singh, AIR 1975 SC 105 at 118; Y. Narasimha Rao v. Y. Venkata Lakshami, AIR 1991 SC 821 at 831
[7] Speech by the Ambassador of Japan to the Netherlands on the occasion of Centennial celebration of Japan’s participation in the HCCH, 23 September 2004.