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CHAPTER I

SCOPE OF APPLICATION OF INTERNATIONAL CO-OPERATION TREATIES 12.  It is necessary to make a precise determination of the scopes of application of the treaties that hypothetically may be applied to a Private International Law situation. An accurate determination may avoid the problems that might arise with the possible application of more than one international treaty. In fact, if one of the conventions is not applicable, there will be no conflict with the other treaty  5. 13.  Every treaty has a material, territorial and temporal scope of application ; the material and territorial scopes are generally described in the first articles of a treaty, while the temporal scope is usually determined in the last provisions of a treaty. Some authors also mention a personal scope of application  6, but we prefer to include the few situations referred to a personal scope of application in the material sphere of application, e.g. the age of 16 years as a limit for the application of the Convention on the Civil Aspects of International Child Abduction, signed in The Hague, on 25 October 1980, according to Article 4 of the same Convention. A.  Material Scope of Application 1.  Hague Convention on Service 14.  Material scope refers to the matter regulated by the Convention and is generally determined in the first articles of international treaties. Let us take as an example an important international co-operation treaty, i.e. the Convention on the Service Abroad of Judicial and Extra5. H. Gaudemet-Tallon, “Le pluralisme en droit international privé : richesses et faiblesses. (Le funambule et l’arc-en-ciel). Cours général”, Recueil des cours, Vol. 312 (2005), pp. 9 et seq., para. 140, p. 151 ; F. Rigaux, Derecho internacional privado, Parte general, trad., Madrid, Cívitas, 1985 (translation of the first edition in French : Droit international privé, Vol. 1, Brussels, 1977), para. 324, p. 274. See also C. Brière, Les conflits de conventions internationales en droit privé, Paris, LGDJ, 2001, p. 15 and footnote 1. 6.  H. D. T. Gutiérrez Posse, Guía para el conocimiento de los Elementos de Derecho Internacional Público, Buenos Aires, La Ley, 2007, pp. 40 et seq., among many other Public International Law authors.

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judicial Documents in Civil or Commercial Matters concluded in The Hague on 15 November 1965  7. This Convention provides as follows : “Article 1 The present Convention shall apply in all cases, in civil or commercial matters, where there is occasion to transmit a judicial or extrajudicial document for service abroad . . .” 15.  This article regulates the material scope of this Convention : it includes the judicial cases of service of process abroad and also the extrajudicial transmission of documents to another country. Article 17 refers to the transmission of extrajudicial documents, using the same methods as the judicial transmission. 16.  We may look at this first paragraph of Article 1 as having three requirements in order to comply with the material scope of application of the 1965 Hague Convention, (a)  transmission of documents abroad, (b)  judicial or extrajudicial transmission, (c)  civil or commercial matters. The first requirement expresses the basic criterion for the Convention to apply : transmission abroad, i.e. transmission from one State party to another State party and the determining factor is the place of service  8. 17. Finally, the Convention only deals with civil or commercial matters, terms that are not defined in the Convention. Does this third requirement that the Convention only deals with cases in civil or commercial matters imply that criminal, tax or administrative matters are not covered by this treaty ? As the authors of the 1965 Convention had refused to determine what civil or commercial means, the States parties must solve the question  9. And indeed there are different 7. The Hague Convention on the Service of 1965 has 68 States parties as of 23 January 2015. Text and status are available on the website of the Hague Conference on Private International Law : www.hcch.net. 8. Hague Conference on Private International Law, Practical Handbook on the Operation of the Hague Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, 3rd ed., Montreal, Hague Conference, Permanent Bureau, 2006, para.15, p. 9. 9. The authors of the Convention eventually decided not to deal with this question leaving its resolution to the States parties, see Hague Conference on Private International Law, “Explanatory Report on the 1965 Hague Service Convention”, drafted by V. Taborda Ferreira, in Actes et documents de la dixième session (1964), Vol. III, Notification, The Hague, Imprimerie Nationales, 1965, pp. 363 et seq. This offprint is only in French. See also Hague Conference, Practical Handbook on the Service Convention, op. cit. footnote 8, para. 51, footnote 98.



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meanings of what civil or commercial include, according to each legal system. For some countries civil or commercial mean non-criminal matters ; for other countries criminal, tax or administrative matters would not be covered by this treaty, as they are not civil or commercial matters. Moreover, for example, in the Egyptian system of personal law, matters of personal status are not considered to be civil matters  10. This last interpretation might surprise a European lawyer or court. 18. The Special Commission that met in The Hague in February 2009 to review the practical operation of the Service of Process and other Hague Conventions noted that the expression “civil or commercial matters” had not caused too many difficulties over the past five years and the Conclusion and Recommendation No. 69 of the 2003 Special Commission also seemed to have been followed. This led the Special Commission to reaffirm that the phrase “civil or commercial matters” should be interpreted in an autonomous manner, without any exclusive reference to either the law of the requesting or requested States, or to both laws cumulatively  11. 19. Matters of Labour Law, Insolvency Proceedings and Social Security may also fall within the scope of this concept, notwithstanding the fact that they lie in the “grey area” between private and public law. The Supreme Court of the Netherlands (Hoge Raad) held in the case of Arcalon v. Ramar, in 1986, that a request for evidence issued by a Bankruptcy Court of California was within the ambit of “civil or commercial matters” for the purposes of the Convention  12. According to the Hoge Raad, the Convention’s objective and scope justify an extensive construction of Article 1. In spite of the fact that this ruling was rendered in relation with the 1970 Evidence Hague Convention, the opinion of the Hoge Raad is applicable to the 1965 Hague Service 10. Hague Conference on Private International Law, Report on the Work of the Special Commission on the Operation of the Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, drawn up by the Permanent Bureau, December 1977, p. 3, available at : http :// www.hcch.net/upload/scrpt14_77e.pdf (last visit 9 January 2015). 11. Hague Conference on Private International Law, 2009 Conclusions and Recommendations of the Special Commission on the Practical Operation of The Hague Apostille, Evidence and Access to Justice Conventions (2 to 12 February 2009), The Hague, 2009, paras. 69 et seq., pp.12 et seq. Available on the Hague Conference website : http ://www.hcch.net/upload/wop/jac_concl_e.pdf (last visit 14 January 2015). 12. Hague Conference, Practical Handbook on the Service Convention, op. cit. footnote 8, para. 53, p. 26, footnote 99.

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Convention. A German court held that a claim for “punitive damages” was indeed a civil matter in 1989  13. 20. The view taken by the 2009 Special Commission is that a liberal interpretation should be given to the expression “civil or commercial matters”, focusing on the nature of the cause of action. No particular subject matter is expressly excluded from the scope of civil or commercial matters under the Convention  14. The 2003 Special Commission also cautioned that the meaning “civil and commercial” appearing in other instruments should not be relied on for interpretation without considering the object and purpose of such other instruments  15. 21. It was accepted that matters such as bankruptcy, insurance and employment might fall within the scope of “civil or commercial matters”. In contrast, other matters considered by most of the States to fall within public law, for example tax matters, would not yet seem to be covered by the Convention  16. Again, in 2009 the Special Commission saw that the 2003 recommendation had in the main been followed and very few problems had arisen. Thus, they reaffirmed the 2003 recommendations  17. 13. Hague Conference, Practical Handbook on the Service Convention, op. cit. footnote 8, para. 54, footnote 102. 14.  Hague Conference, 2009 Conclusions and Recommendations on the Practical Operation Apostille, Evidence and Access to Justice Conventions, op. cit. footnote 11, para. 14, p. 5. 15.  Hague Conference on Private International Law, 2003 Conclusions and Recommendations of the Special Commission on the Practical Operation of The Hague Apostille, Evidence and Service Conventions (28 October to 4 November 2003), The Hague, 2003, para. 72, p. 12. Available at : http ://www.hcch.net/upload/wop/lse_concl_e. pdf (last visit 14 January 2015). 16. Hague Conference, Report on the Work of the Special Commission of April 1989 on the Operation of the Hague Conventions of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters and of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters, The Hague, 1989, p. 27. Available at : http ://www.hcch.net/upload/scrpt89e_20.pdf (last visit 14 January 2015). 17.  Hague Conference, 2003 Conclusions and Recommendations on the Practical Operation of the Apostille, Evidence and Service Conventions, op. cit. footnote 15, p. 12 : As to the meaning of the terms “civil or commercial matters”, the Special Commission urged for a broad interpretation of these terms and reaffirmed the following conclusions adopted in 1989 : “a.  The Commission considered it desirable that the words ‘civil or commercial matters’ should be interpreted in an autonomous manner, without reference exclusively either to the law of the requesting State or to the law of the requested State, or to both laws cumulatively. b.  In the ‘grey area’ between private and public law, the historical evolution would suggest the possibility of a more liberal interpretation of these words. In particular, it was accepted that matters such as bankruptcy, insurance and employment might fall within the scope of this concept.”



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22.  However, there is also a negative requirement that arises from Article 1, paragraph 2, of the 1965 Convention : “This Convention shall not apply where the address of the person to be served with the document is not known.” The practice of the States parties’ Central Authorities is very liberal when the address stated in the request for service is incomplete, inaccurate or fictitious, or in the event of a change of address. In such cases, the Central Authorities usually seek to determine the correct address of the person to be served before asserting Article 1 (2) of the Convention  18. A case decided in the Netherlands in 1995 ruled in default against a defendant whose spouse had refused informal delivery of the document sent to her husband at his latest known address in France. The Convention was deemed applicable in spite of the fact that the wife had stated that she was unaware of her husband’s whereabouts, as he had left the family residence  19. Another Dutch case ruled by the Supreme Court – Hoge Raad – in 1998 stated that the Convention was applicable when the defendant’s address in Germany was known at the time of the first procedural hearing, while it was not known when notice of the appeal should be served  20. 23.  The United States courts have decided that the Convention was not applicable when service was made by means of publication in a daily newspaper, because the address of the person to be served was unknown. Service by publication is allowed in some legal systems and not in others : according to the procedural law of California  21 service may be made by publication in a daily newspaper  22. 18. Hague Conference, Practical Handbook on the Service Convention, op. cit. footnote 8, para. 72, p. 31. 19.  Netherlands, Rechtbank Utrecht, 6 December 1995, Van Zelm BV v. Martinus Bomas, Nederlandse Jurisprudentie, 1996, p. 756, cited by Hague Conference, Practical Handbook on the Service Convention, op. cit. footnote 8, para. 76, p. 32, footnote 117. 20.  Netherlands, Hoge Raad, 20 February 1998, Malenstein v. Heymen, Nederlandse Jurisprudentie, 1998, p. 619, cit. by the Hague Conference, Practical Handbook on the Service Convention, op. cit. footnote 8, para. 76, p. 32, footnote 118. 21.  California Code of Civil Procedure, Section 415.50. Available on the Official California Legislative Information website  : http ://www.leginfo.ca.gov/.html/ccp_ table_of_contents.html (last visit 14 January 2015). 22.  United States of America, California Court of Appeal, Second District, 23 May 1996, Kott v. Superior Court of Los Angeles County, 45 Cal. App. 4th 1126. Available on Westlaw under citation : 45 Cal. App. 4th 1126. See also California Court of Appeal, First District, 8 September 1997, The People v. Tarradas, 58 Cal. App. 4th 120, available on Westlaw under citation : 58 Cal. App. 4th 120. Both cases are cited by Hague Conference, Practical Handbook on the Service Convention, op. cit. footnote 8, para. 77, p. 32, footnotes 120 and 121.

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Another US case of the District of Columbia Court of Appeals Bulin v. Stein  23 also ruled on the concept of unknown address : the defendant was a German lawyer who was served by “private process server”, a method which Germany had expressly opposed. The Court accepted the service as valid, on the basis of the plaintiff’s repeated efforts to locate the defendant and held that since the “private process server” had been able to locate the person to be served, there was no question of an unknown domicile and the Convention applied. This negative requirement has recently become more flexible in relation to the Council Regulation 44/2001, of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters  24. 2.  Court of Justice of the European Union in Case C‑292/10 24.  The Court of Justice of the European Union has recently rendered judgments in two cases, Lindner in 2011 and Mr. de Visser, in 2012, both related to the unknown domicile of the defendant  25. These cases must be mentioned due to the fact that the negative requirement of the defendant’s unknown domicile is similar in the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, concluded in The Hague, on 15 November 1965, and in Regulation 44/2001, also called Brussels I Regulation. 25.  Let us take, for example, the judgment of the Court of Justice of the European Union in Case C‑292/10, rendered on 15 March 2012. The Court was asked for a preliminary ruling by a German court under Article 267 of the Treaty on the Functioning of the European Union, according to the Treaty of Lisbon, signed on 13 December 2007. The case refers to proceedings between Ms G and Mr. de Visser concerning a lawsuit presented in Germany, for liability arising from the uploading onto an internet site of photographs in which the claimant appears partially naked. 23.  United States of America, District of Columbia Court of Appeals, 7 December 1995, Bulin v. Stein, 668 A. 2d 810 (DC 1995). Available on Westlaw : citation 668 A. 2d 810 and cited by the Hague Conference, Practical Handbook on the Service Convention, op. cit. footnote 8, footnote 123, para. 78, p. 33. 24.  Regulation (EU) No. 1215/2012, in force since 10 January 2015, has superseded Regulation 44/2001. 25.  P. A. de Miguel Asensio, “Infracción de derechos y demandas frente a responsables de sitios de Internet cuyo domicilio se desconoce”, in his blog : http ://pedro demiguelascensio.blogspot.com, posted on 17 March 2012.



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26.  The facts of the case are as follows : Mr. de Visser was the owner of a domain name and ran the internet site www.xxx.de  26 ; under the link photos and videos of that internet site, it was possible to see a photograph of Ms G. and after having clicked on the link click here for more photos, it was possible to see various photographs of her in which she was shown partially naked. In about 2003, Ms G became interested in the internet site and contacted Mr. de Visser. Subsequently, Mr. de Visser, through a colleague and a photographer instructed by him, took photographs of Ms G in Germany, with their intended use being for a party. Nevertheless, Ms G never agreed that those photographs should be published. 27.  The domicile of Mr. de Visser was unknown : his address was indicated in the internet site in a city of the Netherlands and his postal address was also registered in the Netherlands. Nevertheless, the letters sent to those addresses were return marked unknown at this address and the Consulate of the Kingdom of the Netherlands in Munich stated, on request, that Mr. de Visser was not listed in any population register in the Netherlands. The German court where Ms G. instituted the proceedings authorized that Mr. de Visser were served by public notice, according to the provisions of German national law. In effect, the German Code of Civil Procedure (Zivilprozessordnung – ZPO) contains several provisions on notification by publication in Sections 185, 186 and 188  27. 26.  “.de” is the internet country domain for Germany (Deutschland). 27.  The German Code of Civil Procedure states : “Section 185 Service by Publication The documents may be served by publishing a notice (service by publication) wherever : 1. The abode of a person is unknown and it is not possible to serve the documents upon a representative or authorised recipient, 2.  It is not possible to serve documents upon legal persons obligated to register a domestic business address with the Commercial Register, neither at the address entered therein nor at the address entered in the Commercial Register of a person authorised to receive service of documents, or at any other domestic address obtained without any investigations, 3.  It is not possible to serve documents abroad, or if such services does not hold out any prospect of success, or 4.  The documents cannot be served because the place of service is the residence of a person who, pursuant to sections 18 to 20 of the Courts Constitution Act (Gerichtsverfassungsgesetz, GVG), is not subject to jurisdiction.

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The European Court of Justice ruled that the Brussels I Regulation applied to an action of liability arising from the operation of an Internet site against a defendant whose whereabouts are unknown if the court responsible for the case does not hold firm evidence to support the conclusion that the defendant is in fact domiciled outside the European Union. This interpretation of the European Court allows application of the Brussels I Regulation, instead of national rules of the Member State where the action is sued ; under Article 4 of Regulation 44/2001, if the defendant is not domiciled in a Member State, the Regulation is not applicable  28. Section 186 Approval of and Implementation of Service by Publication (1)  The court hearing the case shall decide on whether or not to approve service by publication. The decision may be given without a hearing being held. (2)  Service by publication shall be implemented by hanging a notification on the court’s bulletin board or by publishing the notification in an electronic information system that is publicly accessible in the court. Additionally, the notification may be published in an electronic information and communications system established by the court for such notifications. The notification must set out : 1.  The person on whose behalf the documents are to be served, 2. The name of the party to whom documents are to be served and the address last known, 3. The date, the reference number of the document, and the designation of the subject matter of the proceedings, as well as 4. The office at which the document may be inspected. The notification must include the note that a document is being served by publication, that this service may trigger periods, and that once they have lapsed, the party to whom the documents are being served in this way may have forfeited rights. In serving summonses in this way, the notification must indicate that the document sets out a summons to a hearing and that should the party fail to comply with it, such failure may act to the party’s detriment in legal terms. (3)  It is to be recorded in the files when the notification was displayed on the bulletin board and when it was removed. ....................................................................... Section 188 Time at Which Service by Publication Has Been Effected The document shall be deemed served should one (1) month have lapsed since the notification has been displayed on the bulletin board. The court hearing the case may set a longer period.” An English version of the German Code of Civil Procedure – among other German domestic laws – is backed up by the Federal Ministry of Justice and Consumer Protection of Germany at  : http ://www.gesetze-im-internet.de/ englisch_zpo/englisch_zpo.html (last visit 24 January 2015).” 28.  Article 4 of Regulation 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters : if the defendant is not domiciled in a Member State, the jurisdiction of the courts of each Member State shall, subject to Articles 22 and 23, be determined by the law of that Member State. Regulation (EU) No. 1215/2012, in force since 10 January 2015, has superseded Regulation 44/2001.



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28.  In addition to the situations where the domicile of defendant is unknown, the concept of address has taken on an entirely new dimension as a consequence of new electronic technologies. Applying the method of functional equivalents and taking into account the Conventions’ objectives, the experts of the Round Table on Electronic Commerce and Private International Law, that took place in Geneva in 1999  29, reached the conclusion that the term “address” used by the Hague Convention on Service ought to also include the electronic address. Based on that view, if only the electronic address of the person to be served is known, the Convention can and must apply  30. 29. The Geneva Round Table recommended that, instead of the creation of new norms for Electronic Commerce and Internet operations, existing principles, rules, and procedures can and should be applied, in particular by way of interpretation, including the use of functional equivalents. The experts considered that this is true for the Hague Conventions of 5 October 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents, of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters and of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters  31. 3.  Inter-American Convention on Letters Rogatory, Panama, 1975 30.  The Inter-American Convention on Letters Rogatory, concluded in Panama on 30 January 1975  32, applies to Letters Rogatory issued in proceedings in civil or commercial matters according to Article 2. 29. The Geneva Round Table on Electronic Commerce and Private International Law was organized jointly by the University of Geneva and the Hague Conference on Private International Law and took place in Geneva on 2, 3 and 4 September 1999. A press release including conclusions and recommendations are available at : http ://www. hcch.net/upload/wop/press01e.html (last visit 24 January 2015). 30. Hague Conference, Practical Handbook on the Service Convention, op. cit. footnote 8, para. 79, p. 33. 31.  Hague Conference on Private International Law, Electronic Data Interchange, Internet and Electronic Commerce, drawn up by Catherine Kessedjian, preliminary document No. 7, of April 2000, pp. 25 et seq. Available on the website of the Hague Conference : http ://www.hcch.net/upload/wop/gen_pd7e.pdf (last visit 24 January 2015). 32.  The Inter-American Convention on Letters Rogatory is in force in 18 States : Argentina, Bolivia, Brazil, Chile, Colombia, Costa Rica, Ecuador, El Salvador, Guatemala, Honduras, Mexico, Panama, Paraguay, Peru, Spain, United States, Uruguay and Venezuela. Status is available on the website of the CIDIP-I in the framework of the Organization of American States at : http ://www.oas.org/juridico/english/sigs/B-36. html (last visit 14 January 2015).

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The States parties may declare, under Article 16, that the Convention’s provisions cover criminal, labour and administrative cases, as well as arbitration proceedings  33, but none of the Contracting States have made such a declaration. In spite of the lack of such declarations, we think that States should consider a Letter Rogatory issued in these kinds of matters, as far as International Co-operation is nowadays an obligation for States and the interpretation of the treaty should be broad enough to cover these matters. 31. In this line of thought, several Letters Rogatory issued in labour cases were fulfilled by the Panama Supreme Court of Justice in cases where taking of evidence was requested and in others service of process ; some requests came from Labour Courts of Argentina  34 and other Letters Rogatory were issued by the Supreme Court of Uruguay with the object of making service of process in Panama  35. Nevertheless, there was a case where the Panama Central Authority refused performance of a Letter Rogatory issued by an Argentinian Labour Court, on the grounds that there was no treaty between both countries  36. 32.  The scopes of application of the Hague Conventions on Service as Evidence, as well as those of the Inter-American Conventions on Letters Rogatory and on the Taking of Evidence Abroad refer to “civil or commercial matters”, but there is an important difference between 33.  “Article 16 The States Party to this Convention may declare that its provisions cover the execution of Letters Rogatory in criminal, labour, and ‘contentious-administrative’ cases, as well as in arbitrations and other matters within the jurisdiction of special courts. Such declarations shall be transmitted to the General Secretariat of the Organization of American States.” 34. See the following decisions from Panama : Corte Suprema de Justicia, Sala Cuarta de Negocios Generales, 7 July 2008, Gutiérrez, Juan Carlos v. Tecnical Services S.A., Case No. 179-08 ; 7 March 2008, Lapuente, Julio v. UABL S.A. y Tecnical Services S.A., Case No. 59-08 ; 29 January 1997 Podesta, Ricardo Luis v. Michigan Films International, S.A., Case No. 199701. Full text of these decisions is available on the Judicial Documentation Centre – Judicial Branch of the Republic of Panama : http ://bd.organojudicial.gob.pa/registro.html (last visit 14 January 2015). 35.  Panama, Corte Suprema de Justicia, Sala Cuarta de Negocios Generales, 3 May 2007, Romaniz Pérez, Natalia v. Ruiz, Marcelo, Case No. 907-06. (Letter Rogatory issued by Corte Suprema de Justicia del Uruguay). Full text available at : http :// bd.organojudicial.gob.pa/registro.html (last visit 14 January 2015). 36. Argentina. Juzgado Nacional del Trabajo No. 80, Grant, Andrés Patricio v. Cervecería Argentina S.A. Isenbeck y otro. Letter Rogatory issued by the Argentinian Central Authority, under No. DIAJU 942/09, in 2009, unpublished.



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the Hague Conventions and the Inter-American Conventions : the latter has a provision that authorizes States parties to declare the extension of the Convention in criminal, labour and “contentious-administrative” cases, as well as in arbitrations (Articles 16 of the Inter-American Convention on Letters Rogatory and Article 15 of the Inter-American Convention on the Taking of Evidence Abroad). 33.  The possibility of the States parties of making a declaration as considered in the Convention, may hinder a broad interpretation of the “civil or commercial matters”, such as recommended by the Hague Conference in relation to the Conventions on Service and on Taking of Evidence  37. Despite this difficulty, the broad interpretation of the “civil or commercial matters” is the most appropriate way to interpret the Inter-American Conventions and the one that takes into account the concept of International Judicial Co-operation. 34.  Most probably with the aim of avoiding this kind of difficulties was what induced other international legislators to expressly include administrative and labour matters in the scope of application of several treaties, e.g. the Southern Common Market – known by its acronym in Spanish MERCOSUR – adopted the Protocol on Judicial Co-operation and Assistance in Civil, Commercial, Labour and Administrative Matters, signed in Las Leñas, Argentina, on 27 June 1992  38. 35. Is it possible to consider that Conventions on Judicial Cooperation accept the use of electronic technology in the transmission of Letters Rogatory or other documents or in the service of process or in direct communications between courts and Central Authorities ? Due to the dates of their approval, most International Co-operation treaties do not refer to any modern technology. However, the Hague Special Commission on the practical operation of The Hague Apostille, Evidence and Service Conventions, that met in 2003, concluded that the international transmission of documents for the purposes of the Convention can and should be undertaken by IT-Business methods including e-mail  39. Once again in 2009, the Special Commission noted 37. See Hague Conference, 2009, Conclusions and Recommendations on the Practical Operation Apostille, Evidence and Access to Justice Conventions, op. cit. footnote 11. See also this chapter, para. 18. 38.  Las Leñas Protocol is in force in the four original States of the MERCOSUR : Argentina, Brazil, Paraguay and Uruguay. The text of Protocol in Portuguese and Spanish, as well as status, is available on the MERCOSUR website : www.mercosur.int. 39.  Hague Conference, 2003 Conclusions and Recommendations on the Practical Operation of the Apostille, Evidence and Service Conventions, op. cit. footnote 15, para. 62, p. 11. It is interesting to note that the 2003 Special Commission concluded that the transmission of documents internationally for the purposes of the Convention

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and encouraged co-operation among States and organizations to explore the use of modern technologies  40. The next Special Commission met in The Hague from 20 to 23 May 2014 and its purpose was to discuss issues relating to the contemporary operation of the Conventions, including the definition of terms, problems encountered, good practices, and the impact of information technology  41. We are going to analyse the problems of service by e-mail and other electronic means in the following chapter. B.  Territorial Scope of Application 1. Concept of territorial scope of application from Public International Law’s point of view 36. Public International Law’s meaning of territorial scope of application of treaties refers to the territory of each State where a treaty applies. Under Article 29 of the Vienna Convention on the Law of Treaties, a treaty applies in each contracting State in its entire territory. “Article 29 Territorial Scope of Treaties Unless a different intention appears from the treaty or is otherwise established, a treaty is binding upon each party in respect of its entire territory.” 37.  Some treaties contain federal-State clauses, which are designed to permit federal States to limit their obligations under the treaty to subjects within their federal jurisdiction. If a federal clause is not included in a treaty, a State party will not be able to deny the treaty’s territorial scope, due to the fact that Article 29 requires that the intention can and should be undertaken by IT-Business methods including e-mail ; this is already happening and the Special Commission recommended that States parties to the Convention explore all ways in which they can use modern technology for this purpose. 40.  Hague Conference, 2009, Conclusions and Recommendations on the Practical Operation Apostille, Evidence and Access to Justice Conventions, op. cit. footnote 11, para. 4, p. 3. The Special Commission notes and encourages co-operation among States and International Organizations in further exploring the use of modern technologies in relation to the Conventions so as to further improve their practical operation. The Special Commission notes and warmly welcomes co-operation between the European Community and the Hague Conference in sharing their experiences in the field of e-Justice. 41. Available on the International Legal Co-operation and Administrative Cooperation section of the website of the Hague Conference : http ://www.hcch.net.



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of the State appears. As a consequence of a federal clause, a treaty may apply in some provinces or states of a Contracting State and not in all of them  42. An example of a federal clause may be found in Article 23 of the Inter-American Convention on Letters Rogatory, concluded in Panama, on 30 January 1975  43 : “Article 23 If a State Party has two or more territorial units in which different systems of law apply in relation to the matters dealt with in this Convention, it may, at the time of signature, ratification or accession, declare that this Convention shall extend to all its territorial units or only to one or more of them.” 38.  Many treaties have provisions for extending them to overseas territories ; if a State party does not make these declarations, the treaty will apply only to metropolitan territory. Sometimes a Contracting State objects to an extension to an overseas territory, usually because of a dispute over sovereignty of it. Argentina regularly objects to the extension by the United Kingdom of treaties to the Malvinas Islands (named Falkland Islands by the United Kingdom), South Georgia and the South Sandwich Islands and the British Antarctic Territory, to all of which Argentina asserts territorial claims  44. 39.  One example of the objections of Argentina to the extensions made by the United Kingdom is the one referring to the Convention on the Civil Aspects of International Child Abduction, made at The Hague on 25 October 1980  45. 42. T. Buergenthal and H. G. Maier, Public International Law in a Nutshell, St. Paul-Minn., West Publishing, 1985, paras. 5 et seq., pp. 104 et seq. See also A. Remiro Brotóns, Derecho internacional, València, Tirant lo Blanch, 2007, para. 316, pp. 584 et seq. 43.  States parties of the Inter-American Convention on Letters Rogatory footnote 32. 44. A. Aust. Modern Treaty Law and Practice, 2nd ed., Cambridge, Cambridge University Press, 2007, p. 209. 45. “The Embassy of the Argentine Republic presents its compliments to the Ministry of Foreign Affairs of the Kingdom of the Netherlands – Treaties Division – and has the honour to address the Government of the Netherlands in its capacity of Depositary of the Convention on the Civil Aspects of International Child Abduction, done at The Hague on 25th October 1980. In that respect, the Argentine Republic rejects the extension of the application of the Convention on the Civil Aspects of International Child Abduction, done at The Hague on 25th October 1980, to the Malvinas, South Georgia and South Sandwich Islands, notified by the United Kingdom of Great Britain and Northern Ireland to the Government of the Netherlands as Depositary of the Convention. The General Assembly of the United Nations has adopted resolutions 2065 (XX), 3160 (XXVIII), 31/49, 37/9, 38/12,

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40. The territorial scope of treaties as described by Article 29 of the Vienna Convention on the Law of Treaties is applicable not only to Public International Law treaties, but also to Private International Law ones. However, the territorial scope of application of Private International Law conventions also depends on the relevant connections of the case with Contracting States. 2. Concept of territorial scope of application from Private International Law’s point of view 41.  The nature of Private International Law cases, which are different from cases of Public International Law, requires a careful analysis of the scope of application of Private International Law treaties. The territorial scope is the one where we can see most differences, due to the fact that Private International Law cases will be governed by an international treaty only when the connecting factors established by that treaty are present in the particular case. According to the criteria followed to determine their territorial scope of application, it is possible to classify Private International Law treaties in three categories : (a)  Classical system of territorial scope of application, (b)  Broadening of the Convention’s scope of application, (c)  Universal or erga omnes Conventions. 42.  The Institute of International Law approved a “Recommendation on Scope of Application of Rules of Conflict of Law or of Uniform 39/6, 40/21 and 41/40 which recognize the existence of a dispute over sovereignty relating to archipelago, urging the Argentine Republic and the United Kingdom of Great Britain and Northern Ireland to resume negotiations in order to find as soon as possible a peaceful and definitive solution to the dispute through the good offices of the Secretary-General of the United Nations, who is to report to the General Assembly on the progress made. The Argentine Republic reaffirms its sovereign rights over the Malvinas, South Georgia and South Sandwich Islands and its surrounding maritime areas, which form an integral part of its national territory. The Argentine Government requests the Government of the Netherlands to notify the preceding communication to the Members of the Hague Conference on private international law and signatories and Parties to the above-mentioned Convention. The United Kingdom of Great Britain and Northern Ireland rejects the objection of Argentina in this terms : ‘With reference to the declaration made by the Republic of Argentina rejecting the extension of the Convention to the Falkland Islands, South Georgia and the South Sandwich Islands, the position of the United Kingdom is well known and remains unchanged. The United Kingdom has no doubt about its sovereignty over the Falkland Islands (which is the correct title for the territory recognised by the Administering Power), and over South Georgia and the South Sandwich Islands and its consequent right to extend treaties to them.”



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Substantive Law Contained in Treaties”, at the Dijon session in 1981. This recommendation evidences the different kinds of territorial scope of application in the same way that we are classifying them, in spite of the fact that the Institute has not named the different kinds of territorial scopes of application. 2.1.  Classical system of territorial scope of application 43.  The classical system of territorial scope implies that the treaty applies only between two Contracting States. Hence, the private situation should have significant connections with Contracting States for the treaty to apply. To cite one example, the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, concluded on 18 March 1970, follows the classical system : “Article 1 In civil or commercial matters a judicial authority of a Contracting State may, in accordance with the provisions of the law of that State, request the competent authority of another Contracting State, by means of a Letter of Request, to obtain evidence, or to perform some other judicial act. . . .” This provision mentions two kinds of Contracting States : the State of the requesting authority and the State of the requested authority. 44.  Similarly, the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, concluded in The Hague on 15 November 1965, is applicable only between two Contracting States, i.e. where a document is to be transmitted from one Contracting State to another Contracting State to be served there  46. 45. Almost all Co-operation treaties have a classical system of territorial scope. This classical system may be found in different kinds of treaties, such as treaties on the Applicable Law or Uniform Substantive Law, treaties on International Jurisdiction as well as in treaties on the Recognition and Enforcement of Foreign Judgments and on other conventions on Judicial Co-operation. Referring to Provisional Measures, the Inter-American Convention on Execution of Preventive Measures, concluded in Montevideo, on 8 May 1979, in the framework of CIDIP-II, has also a classical system scope of application. 46. Hague Conference, Practical Handbook on the Service Convention, op. cit. footnote 8, para. 15, p. 9.

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2.2.  Broadening of the Convention’s scope 46.  Some conventions broaden their territorial scope of application through the determination of a criterion to apply the convention, regardless of the meeting of two Contracting States that have relevant connections with the case. For example, the well-known Convention on Contracts for the International Sale of Goods, signed in Vienna, on 11 April 1980, determines its territorial scope of application in Article 1. This article has two kinds of scopes of application ; in addition to the classical system, adopted by Article 1 (1) (a), it also states the application of the treaty when the applicable law is one of a Contracting State, according to Article 1 (1) (b). The Convention rules : “(1) this Convention applies to contracts of sale of goods between parties whose places of business are in different States : (a)  when the States are Contracting States ; or (b) when the rules of private international law lead to the application of the law of a Contracting State.” As a matter of fact, when the Institute of International Law Recommendation mentioned treaties “which only govern situations having certain links with a contracting State” it is referring to conventions that broaden their territorial scope of application. 2.3.  Universal or erga omnes conventions 47. A convention is universal or erga omnes when it is applied by Contracting States in relation to any country of the world, either contracting or non-contracting. This kind of scope of application is more often used in conflicts-of-law conventions. For instance, the Convention on the Law Applicable to Agency, concluded in The Hague, on 14 March 1978  47, determines its universal nature in Article 4 that states as follows : “Article 4 The law specified in this Convention shall apply whether or not it is the law of a Contracting State.” 47.  The Hague Convention on the Law Applicable on Agency has 4 States parties : Argentina, France, Netherlands and Portugal, as of 24 January 2015. Status is available on the website of the Hague Conference : http ://www.hcch.net/index_ en.php ?act=conventions.status&cid=89.



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48.  The same universal nature may be found in the Protocol on the Law Applicable to Maintenance Obligations, concluded in The Hague, on 23 November 2007  48. “Article 2 Universal Application This Protocol applies even if the applicable law is that of a nonContracting State.” 49.  These two examples of universal conventions refer to conflictsof-law treaties, but we also find a universal convention on International Co-operation that has universal character. In fact, the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, concluded on 10 June 1958, has universal application, according to Article I (1) : “Article I This Convention shall apply to the recognition and enforcement of arbitral awards made in the territory of a State other than the State where the recognition and enforcement of such awards are sought, and arising out of differences between persons, whether physical or legal. . . .” It is easy to understand that the Convention does not require two Contracting States, because Article I (1) mentions the awards made in a “State other than the State”, it does not require the award to have been rendered in a Contracting State. 50.  The reservation allowed by Article I (3) confirms the universal nature of the Convention : any Contracting State may declare that it will apply the Convention to the recognition and enforcement of awards made only in the territory of another Contracting State. If a State does not make this declaration, it must apply the convention to awards rendered in Contracting and non-Contracting States. 51. The “Recommendation on Scope of Application of Rules of Conflict of Law or of Uniform Substantive Law Contained in Treaties”, 48.  The Protocol on the Law Applicable to Maintenance Obligations is in force in 28 States : Serbia and 26 of the 28 European Union States (with the exception of Denmark and the United Kingdom) and also the European Union itself. The EU States are bound by the Convention as a result of an approval by a Regional Economic Integration Organisation – REIO – including the actual approval by the REIO (in this case the European Union). Status is available on the website of the Hague Conference : http :// www.hcch.net/index_en.php ?act=conventions.status2&cid=133 (last visit 31 January 2015).

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of the Institute of International Law approved at the Dijon session in 1981, makes reference to treaties which do not contain limitations of having certain links with a Contracting State ; in consequence, they are universal treaties. The suggested wording for the express provision in universal treaties is the following : “The rules of this Treaty shall apply even to a situation that has no link with a contracting State.”  49 52.  Does the treaty’s subject matter have gravitation on its territorial scope of application ? We believe that this point has not been sufficiently developed by legal scholars. Still, we may find that the majority of International Co-operation conventions follow the classical scope of application, namely they apply only between Contracting States. C.  Temporal Scope of Application 53.  Entry into force of a treaty is usually expressly provided for ; contrarily, the temporal scope of application is not generally a matter of express regulation in the treaties, so doubts may appear in relation with the cases or situations to which the convention shall apply. This is one of the reasons why the the Institute of International Law analysed The Problem of Choice of Time in Private International Law in the Session of Dijon in 1981  50 and recommended that : “In order to avoid any cause of uncertainty or dispute, every international instrument or statute relating to matters of Private International Law should include provisions indicating the solution that ought to be given to such problems of applicable time as might arise in the course of its application.” If there is no express provision in the Convention, we believe that a treaty on Recognition of Foreign Judgments should be applied when the recognition is claimed after the entering into force of the treaty, 49.  Institute of International Law, “Recommendation on Scope of Application of Rules of Conflict of Law or of Uniform Substantive Law Contained in Treaties”, Dijon session, 1981. “4 : Treaties on the applicable law which only govern situations having certain links with a contracting State shall contain provisions on territorial application that describe the situations covered. Treaties which do not contain such limitations should make this clear by means of an express provision which could be worded as follows : ‘The rules of this Treaty shall apply even to a situation that has no link with a contracting State.’ ” Available at : http ://www.idi-iil.org/idiF/ resolutionsF/1981_dijon_02_fr.PDF (last visit 24 January 2015). 50.  The resolutions of the Institute of International Law, including those of the Dijon session, that took place in 1981, are available in English and French on the website : http ://www.idi-iil.org/index.html.



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even in relation to decisions delivered before the entering into force of the treaty. 54. The Hague Convention on Choice of Court Agreements, adopted on 30 June 2005  51, follows the criterion that the critical temporal point for recognition of foreign judgments is the date on which the proceedings are instituted. Certainly, the same Article 16 of the Convention has the typical temporal rule in relation with contracts, that is the date of conclusion of the agreement : “Article 16 Transitional Provisions (1)  This Convention shall apply to exclusive choice of court agreements concluded after its entry into force for the State of the chosen court. (2)  This Convention shall not apply to proceedings instituted before its entry into force for the State of the court seised.” 55. There was a change of position in the Hague Conventions concerning the Recognition and Enforcement of Decisions Relating to Maintenance Obligations towards Children : while the Convention signed in 1958 established that the Convention did not apply to decisions rendered before its entry into force (Article 12), the Convention adopted in 1973 extends its application to judgments rendered before or after the entry into force, but it limits enforcement to payments falling due after the entry into force of the Convention (Article 24)  52. 56.  Notwithstanding there are different scholarly and jurisprudential positions in relation to this point, we may say that if there is not an express provision that rules the contrary, any treaty or domestic rule related to international Judicial Co-operation may and must be applied 51.  The Hague Convention on Choice of Court Agreements, adopted on 30 June 2005, is not yet in force. It has only one State party (Mexico) while two have signed the treaty (European Union and United States of America). Status as of 25 January 2015 is available on the Hague Conference website : http ://www.hcch.net/index_ en.php ?act=conventions.status&cid=98. 52. The Hague Convention concerning the Recognition and Enforcement of Decisions Relating to Maintenance Obligations towards Children of 15 April 1958 has 20 States parties while the Hague Convention on the Recognition and Enforcement of Decisions Relating to Maintenance Obligations of 2 October 1973 is in force in 24 States ; 13 of them were States parties to the 1958 Convention : Czech Republic, Denmark, Finland, France, Germany, Italy, Netherlands, Norway, Portugal, Slovakia, Spain, Sweden and Switzerland. The 1973 Convention replaced the 1958 Convention (Article 29 of the 1973 Convention). Text and Status of both treaties are available at : www.hcch.net.

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to requests made after the entry into force of the treaty or domestic rule. In this line of thought, Paul Roubier expressed that it was not doubtful that the rules that apply to recognition of foreign judgments are those in force in the date of asking for exequatur and not those applicable in the date when the judgment was rendered  53. 57. There is an express provision on the temporal scope of application for the recognition of foreign judgments in the Treaty between the Argentine Republic and the People’s Republic of China on Legal Assistance in Civil and Commercial Matters, signed in Buenos Aires on 9 April 2001  54. Under Article 15 the judgments rendered in one of the States party after the entry into force of the Treaty will be recognized and enforced in the other country, subject to the conditions established in the Treaty. 58. Another temporal rule is found in Article 66 of Regulation (EC) No. 44/2001 on jurisdiction and the enforcement of judgments in civil and commercial matters. Even more, the Court of Justice of the European Union rendered a judgment dated on 21 June 2012 in the C-514/10, Wolf Naturprodukte GmbH v. SEWAR spol. s.r.o. case, ruling on the interpretation of the temporal rule of the Regulation (EC) No. 44/2001. The Court (Third Chamber) ruled that : “Article 66 (2) of Council Regulation (EC) No. 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as meaning that, for that regulation to be applicable for the purpose of the recognition and enforcement of a judgment, it is necessary that at the time of delivery of that judgment the 53.  P. Roubier, Le droit transitoire (Conflits des lois dans le temps), 2nd ed., Paris, Dalloz et Sirey, 1960, para. 105, pp. 563 et seq. Paul Roubier expresses : “Quant à la force exécutoire de la sentence, elle dérive également de la loi en vigueur au jour où elle a été rendue ; toutefois, il se peut qu’elle se trouve paralysée par certaines circonstances, qui rendent nécessaire un exequatur, et c’est le cas des jugements étrangers. Quelle est alors la loi compétente pour régler cet exequatur, celle en vigueur au jour où le jugement fut rendu, ou celle en vigueur au jour où on en poursuit l’exécution ? Il nous semble que la réponse ne peut pas être douteuse : les règles relatives à cet exequatur doit être considéré comme un acte d’exécution distinct du jugement lui-même . . .” 54.  The Treaty between the Argentine Republic and the People’s Republic of China on Legal Assistance in Civil and Commercial Matters, signed in Buenos Aires on 9 April 2001, was ratified by both States on 9 September 2011 and the entry into force was on 9 October 2011. Available in Spanish and Chinese in the Treaty Section of the Ministry of Foreign Affairs and Worship of Argentina : http ://tratados.cancilleria. gob.ar.



Private International Law Co-operation 161 regulation was in force both in the Member State of origin and in the Member State addressed.” D.  Reservations and Reciprocity of the Reservations

1. Reservations and determination of the scope of application of a treaty 59. Reservations and interpretative declarations are important to determine the precise scope of application of a treaty in a Contracting State. The importance comes from the fact that a reservation may exclude the application or modify the legal effects of a certain provision in relation with the State that made the reservation. They are useful tools to make more flexible international treaties, that are by nature very rigid instruments ; reservations allows Contracting States to adjust the contents of a treaty to the special features of their domestic legal system, without affecting the uniformity of substantial rules of the treaty  55. 2.  Definition and validity of reservations and interpretative declarations 60.  According to the Guide to Practice on Reservations to Treaties, adopted in 2011 by the International Law Commission : “ ‘Reservation’ means a unilateral statement, however phrased or named, made by a State or an international organization when signing, ratifying, formally confirming, accepting, approving or acceding to a treaty, or by a State when making a notification of succession to a treaty, whereby the State or organization purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State or to that international organization.”  56 55.  N. Bouza Vidal, “Unificación convencional ‘a la carta’ del derecho internacional privado”, in Derecho Internacional Privado – derecho de la libertad y el respeto mutuo – Ensayos a la memoria de Tatiana B. de Maekelt, Asunción, CEDEP/ASADIP, 2010, pp. 171 et seq., p. 173. 56.  International Law Commission, Guide to Practice on Reservations to Treaties. With Commentaries, adopted in 2011, Document A/66/10/Add.1, para. 1.1, p. 1. The topic was on the agenda of the ILC from 1993 to 2011 and Alain Pellet was the Special Rapporteur of the working group. Available at : http ://www.un.org/law/ilc/ (last visit 25 January 2015). See also A. Pellet, “The ILC Guide to Practice on Reservations to Treaties : A General Presentation by the Special Rapporteur”, EJIL, Vol. 24, No. 4 (2013), pp. 1061 et seq. and also available online at : http ://www.alainpellet.eu/ Documents/PELLET - 2013 -EJIL - ILC Guide.pdf (last visit 26 January 2015).

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61. Contracting States to a treaty may also make interpretative declarations, which are defined by the mentioned Guide to Practice on Reservations to Treaties, adopted in 2011 as : “  ‘Interpretative declaration’ means a unilateral statement, however phrased or named, made by a State or an international organization, whereby that State or that organization purports to specify or clarify the meaning or scope of a treaty or of certain of its provisions.”  57 3.  Flexibilization of treaties through reservations 62.  A reservation may enable a State to participate in a multilateral treaty in which the State would otherwise be unwilling or unable to participate  58 ; hence the Vienna Convention on the Law of Treaties, signed in 1969, has a favourable treatment of reservations which are contemplated in Articles 19 to 23. Private International Law treaties provide – in general – that only specified reservations may be made. In case the treaty does not have any provision on the matter, the States may formulate a reservation unless it is incompatible with the object and purpose of the treaty (Article 19)  59. 63.  The Hague Convention on Taking of Evidence Abroad in Civil or Commercial Matters, signed in 1970, allows important reservations, namely to Part II of the Convention (Article 33). This possibility of making reservations has allowed 58 States to ratify or accede to the treaty, a good number of them with reservations to the taking of evidence by diplomatic officers or consular agents and commissioners, that is Part II of the Convention  60. The provision of Article 33 rules : 57. International Law Commission, Guide to Practice on Reservations, op. cit. footnote 56, para.1.2, p. 2. 58.  United Nations Treaty Handbook prepared by the Treaty Section of the Office of Legal Affairs, 2002-2012, para. 3.5.1, p. 12, available on the United Nations Treaty Collection website : https ://treaties.un.org/doc/source/publications/THB/English.pdf ; W. W. Bishop, Jr., “Reservations to Treaties”, Recueil des cours, Vol. 103 (1961), pp. 245 et seq. pp. 337-338 and G. A. L. Droz, “Les réserves et les facultés dans les Conventions de La Haye de droit international privé”, Revue critique, Vol. 3 (1969), pp. 381 et seq., p. 424. 59.  For a detailed analysis on the topic see A. Pellet, “Articles 19 and 22” and (with W. Schabas), “Article 23 (Reservations)”, in O. Corten and P. Klein (eds.), The Vienna Conventions on the Law of Treaties – A Commentary, Vol. 1, Oxford University Press, 2011, pp. 405-488, 568-593 and 594-627. Also available at : http ://www.alainpellet.eu/ Pages/Articles.aspx. 60.  Of the 58 Contracting States to the Hague Convention on Taking of Evidence of 1970, 4 States have excluded in whole the application of Chapter II (Argentina, Brazil, Singapore and Sri Lanka). The States that have excluded in part the application



Private International Law Co-operation 163 “Article 33 A State may, at the time of signature, ratification or accession exclude, in whole or in part, the application of the provisions of paragraph 2 of Article 4 and of Chapter II. No other reservation shall be permitted. . . .”

Some treaties may prohibit any reservation, such as the Protocol on the Law Applicable to Maintenance Obligations, concluded in The Hague on 23 November 2007  61. “Article 27 Reservations No reservations may be made to this Protocol.” 4.  Reciprocity of reservations 64.  In cases when a State formulates a reservation that is authorized by the treaty, are the other Contracting States authorized to assert reciprocity against the State party that have made the declaration of reservation  62 ? The effects of a reservation have been fully addressed by Article 21 of the Vienna Convention on the Law of Treaties. “Article 21 Legal Effects of Reservations and of Objections to Reservations 1. A reservation established with regard to another party in accordance with articles 19, 20 and 23 : (a) modifies for the reserving State in its relations with that other party the provisions of the treaty to which the reservation relates to the extent of the reservation ; and of Chapter II are Bulgaria, China, Croatia, Denmark, Hungary, Liechtenstein, Mexico, Montenegro, Poland, Portugal, Romania, South Africa, South Korea, Ukraine and Venezuela, while more than half of the States parties have made no reservation. A table reflecting applicability of articles of the Convention is available at : http ://www.hcch. net/upload/appl-table20e.pdf (last visit 26 January 2015). 61. The Protocol of 23 November 2007 on the Law Applicable to Maintenance Obligations is in force in 28 States including a Regional Economic Integration Organization (the European Union) ; see footnote 48. 62. J. M. Ruda, “Reservations to Treaties”, Recueil des cours, Vol. 146 (1975), pp. 95 et seq., p. 196 ; F. Majoros, “Le régime de réciprocité de la Convention de Vienne et les réserves dans les Conventions de la Haye”, Journal du droit international (Clunet), Vol. 101 (1974), pp. 73 et seq. Some treaties allow States to invoke reciprocity in case of reservation of the other country, such as the Hague Convention on Taking of Evidence Abroad in Civil or Commercial Matters, signed in 1970 (Article 33 (3) ).

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65.  The Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, adopted in 1965, permits reservation to Article 8 that allows service through diplomatic or consular agents and to Article 10 that rules on the use of methods of transmission for other ways of service, such as service by postal mail or private service by claimant’s counsel. The mentioned provisions rule of the 1965 Hague Convention rules : “Article 8 Each Contracting State shall be free to effect service of judicial documents upon persons abroad, without application of any compulsion, directly through its diplomatic or consular agents. Any State may declare that it is opposed to such service within its territory, unless the document is to be served upon a national of the State in which the documents originate ...................................................... Article 10 Provided the State of destination does not object, the present Convention shall not interfere with – (a) the freedom to send judicial documents, by postal channels, directly to persons abroad, (b) the freedom of judicial officers, officials or other competent persons of the State of origin to effect service of judicial documents directly through the judicial officers, officials or other competent persons of the State of destination, (c) the freedom of any person interested in a judicial proceeding to effect service of judicial documents directly through the judicial officers, officials or other competent persons of the State of destination.” 66.  If a State formulates the reservation to Article 10, allowed by Article 21, are other countries authorized not to accept other ways of service in cases connected with the State that formulated the reservation ? The invocation of reciprocity of the reservation is legally possible under Article 21 of the Vienna Convention on the Law of Treaties, but the practice of the States shows that States parties do not assert reciprocity against other States parties that have made reservations under Articles 8 and 10.



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For example, the Governments of Sweden and the United States of America in their answers to the 2003 Hague Conference Questionnaire of the Service Convention of 1965  63 expressed their policy not to assert reciprocity  64. Practice shows States that have made the reservation opposing service through postal channels in their territories also use this channel to send documents abroad  65. For example, in Argentina, a decision of a Court of Appeals in 2014 accepted the plaintiff’s request to practise service in the United States through postal channels, stating that the United States of America has not opposed this method and that the reservation made by the Argentine Republic should not be taken into account because the actual trend in International Legal Co-operation is not to invoke reciprocity and not to “bilateralize” reservations  66.

63.  See the 2003 Hague Conference Questionnaire accompanying the provisional version of the Practical Handbook on operation of the Service Convention : Question 18. Available at : http ://www.hcch.net/upload/wop/lse_pd02e.pdf (last visit 26 January 2014). 64. See the clear and precise Answer 18 of the Swedish Government : “We do not oppose direct service through postal or consular channels and we do not assert reciprocity against states that have so. In other words, we accept direct service from opposing states too.” Available at : http ://www.hcch.net/upload/wop/lse_se.pdf. The answer of the US Government to the same question was expressed as follows : “The United States follows a liberal policy with regard to the service of foreign judicial process within this country. It does not assert reciprocity with regard to the use of postal channels or other authorized formal and informal means for service”, available at : http ://www.hcch.net/upload/wop/lse_us.pdf (last visit to both documents 26 January 2015). 65.  The Government of Norway – which opposes postal service in its territory – stated : “Documents emanating from Norway can be served abroad through postal channels. In our opinion a state that has made a reservation is in no position to require the Convention to be applied without reciprocity, but the requested state neither has no obligation to apply the Service Convention with reciprocity. The forwarding authorities in Norway therefore use postal transmission to member states that has not objected to this method of transmission.” See Hague Conference, Synopsis of Responses to the Questionnaire of July 2008 relating to the Hague Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, p. 88. Available at : http ://www.hcch.net/upload/wop/2008synopsis14.pdf (last visit 26 January 2015). 66.  Argentina, Cámara Nacional de Apelaciones en lo Comercial, Sala B, 16 July 2014, Miceli Elsa v. System Link International, Case No. 12809/2013. Available on ElDial www.eldial.com.ar under citation AA89AF. A commentary on the case and the reservations of Argentina to Article 10 of the 1965 Hague Convention by S. Paredes, “¿Se puede notificar por correo postal dirigido a Estados Unidos de América una demanda que tramita en Argentina ?”, Cuadernos ASADIP, www.asadip.org, forthcoming.