An update was provided on two current projects in the Hague Conference on Private International Law on (1) enforceability of mediated or conciliated agreements relating to child disputes, and (2) the operation of the “grave risk” exception to return under Article 13(b) of the Hague Child Abduction Convention. It was explained why the USG believes that it is premature to consider an instrument on enforcement of mediated or conciliated agreements. Also discussed were the Uniform Interstate Enforcement of Protective Orders Act and similar laws in Canada, which is considering recognizing and enforcing protective orders from foreign States. A presentation was made on the prospects for U.S. ratification of (1) the Hague Convention on International Protection of Adults; (2) the Hague Convention on Trusts; (3) the UNIDROIT Convention on International Wills; and (4) the Hague Convention on the Law Applicable to Succession. Support was expressed by audience participants for having the State Department revisit the Trusts and Wills Convention.
Federalism and implementation of the Convention on Choice of Court Agreements
Panelists addressed the current impasse over a mechanism to implement the COCA domestically, which has held up the ratification process. The proposal set forth by the State Department in its White Paper of April 2012 was discussed, particularly the recommendation on applicable law in federal court and Erie doctrine. It was noted that there are differing views about what cooperative federalism means. Some participants expressed support for a different implementation approach: that used in the Federal Arbitration Act for the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards.
It was advocated that the United States withdraw its Article 95 declaration under the UN Convention on Contracts for the International Sale of Goods (CISG). Pursuant to that declaration, the CISG applies only if both parties to the contract have places of business in Contracting States to the Convention. The proposal did not attract broad support; it was observed that those engaged in international sales transactions were not calling for withdrawal of the declaration. A proposal was also made to launch a new global project on harmonization of contract law. That proposal was not supported; participants questioned the need for and feasibility of such an endeavor. The topic of a proposed new global initiative on contract law will be the subject of a symposium at Villanova Law School on January 18, 2013.
Developments in PIL bodies
Representatives of the International Institute for the Unification of Private Law (UNIDROIT), the Hague Conference on Private International Law, the Organization of American States (OAS), and the UN Commission on International Trade Law (UNCITRAL) provided an update on current work in their organizations.
Agricultural finance and food security
Panelists discussed a new project in UNIDROIT on contract farming, the efforts of the International Finance Corporation on agricultural finance issues, and ongoing work in the US Agency for International Development to promote food security through legal reforms. It was noted that issues relating to land tenure and land title often need to be addressed, although those issues are outside the scope of the current UNIDROIT project.
Microfinance, simplified incorporation and other initiatives to promote growth of microenterprises and SMEs
It was explained how Colombia has been successful in enacting new laws that promote economic growth at the grass roots level, while bringing enterprises into the formal sector of the economy. Reform efforts in other countries were also examined. General support was expressed for such initiatives, and it was noted that Colombia has proposed that UNCITRAL conduct work in this area.