Part of the preparation of previous convention projects by the Permanent Bureau of the Hague Conference consisted of studies which assessed the feasibility of these new projects before a topic was put on the agenda of the organisation. These feasibility studies were then used by the Hague Conference Member States to decide whether the new topic should be included in the agenda of the Hague Conference for future work, i.e. whether a new Hague instrument should be created on this topic. These studies used to analyse, for example, whether the subject matter of the future convention was a suitable one for harmonisation in the first place, or whether the potentially available methods to achieve harmonisation of the law through a Hague convention in this area were feasible methods. For the Hague Judgments Project, however, no comprehensive feasibility studies were prepared concerning the question which convention type should be pursued by the Hague Conference Member States.128 Why such feasibility studies would have been needed, and the effect of the lack of these studies on the Judgments Project will be analysed in the following.

THE NEED FOR A FEASIBILITY STUDY ON THE CONVENTION TYPE (THE SINGLE, DOUBLE AND MIXED CONVENTION)

The goal of the Hague Judgments Project was to create an international convention that would have secured the recognition and enforcement of judgments in civil and commercial matters between the future Contracting States. Conceptually, three convention types are available to achieve this goal: a single convention, a (‘complete’ or ‘strict’) double convention, and a mixed convention.

A single convention (sometimes also referred to as ‘traité simple’ or ‘convention imparfaite’) only secures the recognition and enforcement of foreign judgments, without regulating the question of direct jurisdiction (the question of whether domestic courts have the power to hear the proceedings and render a judgment against the defendant) at the same time.

INTRODUCTION

The first question that must be addressed in order to understand why the Hague Judgments Project failed is whether the Hague Conference on Private International Law was an appropriate forum to create a global judgments convention. As previously discussed, it was the Legal Advisor of the US Department of State who approached the Hague Conference with the idea of creating a global convention on jurisdiction and judgments. The US chose the Hague Conference as a negotiating agency in particular because the US was interested in securing the recognition and enforcement of US judgments within the Member States of the EC (and the European Free Trade Association (EFTA)). By means of this convention, the US had also hoped to reduce the risk to US litigants of being subject to civil proceedings in European courts on the basis of exorbitant, i.e., excessive, grounds of international direct jurisdiction. In 1992, all of the Member States of the EC and most of the EFTA Member States were also Member States of the Hague Conference, and so it was a suitable forum in which US interests in the project could be accommodated. However, negotiating under the auspices of the Hague Conference also offered distinct institutional features which made it a uniquely appropriate agency for creating a global judgments convention.

1.2. SUBJECT-MATTER EXPERTISE

The most obvious of these features was undoubtedly the subject-matter expertise of the Hague Conference. The two subject matters to be considered when creating a judgments convention (international jurisdiction and the recognition and enforcement of foreign judgments) belong to the area of private international law, and more specifically to international civil procedure law.

INTRODUCTION

As discussed in Chapter 6, the term ‘mixed convention’ had a different meaning for the US delegation than for the EC and its Member States. The next question that has to be explored in order to understand why the Judgments Project failed, therefore, is whether the US delegation potentially contributed to this misunderstanding by not making their understanding of a mixed convention (the true mixed convention as originally proposed by the US delegation and the Working Group in 1992) clear enough during the pre-negotiation phase of the Special Commission meetings. In fact, the concerns raised by the US delegation in the letter to Hans van Loon, the then Secretary General of the Hague Conference, that was sent after the Special Commission meeting in October 1999 seemed to have taken some of the other delegations, especially from Member States of the EC, by surprise. One of the experts of the United Kingdom delegation to the Special Commission meetings from 1996 onwards, Paul R Beaumont, remarked that Jeffrey D Kovar's letter had interrupted ‘the relatively smooth path to a Diplomatic Conference’.

Equally, the Portuguese ambassador and permanent representative to the EU, Vasco Valente, declared in a fax to the Secretary General of the Hague Conference that Portugal had taken note of the Kovar letter ‘with apprehension’. If the US had voiced their concerns about the structure of the convention only after the elaboration of the final version of the preliminary draft convention text in October 1999, then they would also have contributed to the failure of the Judgments Project to a certain extent.

The final question which must be addressed in order to understand why the Hague Judgments Project failed is why the EC and its Member States clung to the structure of the October 1999 Preliminary Draft Convention during the Diplomatic Session and were not in general willing to diverge substantially from it.

THE EUROPEAN COMMUNITY's INTEREST IN MAINTAINING A BROAD GREEN LIST

As discussed above in Chapter 3, the European bloc had an interest in filling the gap in the rules on international direct jurisdiction left by the 1968 Brussels Convention regarding defendants who were domiciled in a third State.Creating unified rules on international direct jurisdiction on a global level could have helped to create a level playing field for claimants in EC Member States with regard to proceedings against defendants without a domicile in an EC Member State, and foster equal access to justice. It is likely that the EC also had another hidden interest in maintaining a broad green list reflecting the jurisdictional provisions of the 1968 Brussels Convention (or of the proposal for the Brussels I Regulation (hereafter COM (1999) 348 final) intended to replace the Brussels Convention). A Hague Judgments Convention with jurisdictional provisions drafted according to the Brussels regime would have expanded the geographical influence of the European regime to a considerable extent: a judgment rendered in one of the EC Member States could have been recognised and declared enforceable on a potentially worldwide scale under the Hague Judgments Convention if the judgment had fulfilled its requirements for recognition and enforcement.

To this day, there is no global instrument that regulates both the exercise of international direct jurisdiction of courts and the recognition and enforcement of foreign judgments on a broad scale for civil and commercial matters. In technical terms, such an instrument is called a double instrument, or double convention, as it contains unified rules on both jurisdiction and the recognition and enforcement of foreign judgments. This lack of a global double convention on jurisdiction and judgments means that as a rule, courts of every State in the world employ their own domestic rules of international (direct) jurisdiction in order to determine whether they have the power to hear proceedings in civil and commercial matters with an international element, and to render a judgment against the defendant in these proceedings. Moreover, as a rule, each State employs its own domestic rules on the recognition and enforcement of judgments in civil and commercial matters. Many States do not give effect to foreign judgments in civil and commercial matters (by way of recognition and enforcement) on their territory without an international instrument obliging them to do so. Moreover, even if they do, foreign judgments normally face a series of obstacles before they can be recognised and enforced abroad.

The appeal of creating a double instrument on jurisdiction and judgments is clear, therefore: unified, globally-applicable rules on jurisdiction would foster legal certainty and predictability in international civil and commercial proceedings for both claimants and defendants, as the same rules would apply in all States bound by the convention.

INTRODUCTION

On 10 December 2009, Law Nr. 20,405 created the Instituto Nacional de Derechos Humanos (INDH or the Institute) in Chile: this followed four years of discussion and negotiation in the country's National Congress. President Ricardo Lagos had introduced the original Bill concerning the National Human Rights Institute back in 2005. It was based on the recommendations of several national and international organisations. Initially, the process included general comments and observations received since the 1990s from distinct treaty bodies, which acknowledged the important role that NHRIs can play in monitoring specific human rights instruments. At the regional level, the Organization of American States (OAS) had been promoting the strengthening of these institutions since 2005. Domestically, following an initial announcement by President Lagos in his annual address to the nation, the National Commission on Political Imprisonment and Torture recommended the creation of an NHRI in 2005.

Consequently, Law Nr. 20,405 reflected the broader institutional fabric that had begun to be woven throughout the Chilean state following the return of democracy, which, in terms of distinct Transitional Justice measures or decrees, had led to the creation of the National Commission for Truth and Reconciliation as well as the aforementioned National Commission on Political Imprisonment and Torture. The 2005 Law abandoned the paradigm of temporary institutions, replacing it with a permanent NHRI. In this context, the establishment of the INDH was an important step:6 18 years had passed since President Patricio Aylwin (1918–2016) had introduced an, ultimately unsuccessful, Bill in the National Congress calling for an ombuds office