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This chapter and that following provide a commentary upon Hague 35, amplifying the text of the Convention by reference both to the Explanatory Report upon the Convention prepared by Professor Lagarde, the Rapporteur to the Special Diplomatic Commission at which the Convention was agreed (hereafter ‘the Lagarde Report’) and to the limited number of cases before domestic courts in which the Convention has been considered. In these chapters, we identify those areas in which particular problems of interpretation or implementation have been or appear likely in future to be encountered, as well as suggest solutions to those problems. An assessment of the Convention as a whole then follows in Chapters 10.

Italy is a civil law country. There is a single, state-wide, judicial system, with a number of divisions. Jurisdiction in civil law matters can be divided into contentious, non-contentious, enforcement, and precautionary jurisdictions. The Supreme Court (Corte di Cassazione) is the third and final stage in most civil and criminal law matters. There are twenty-six Courts of Appeals, roughly one per Region. Tribunals, often being the first and lowest jurisdiction stage, are located in most cities within the areas of the Courts of Appeals.

The territory of England and Wales forms a single jurisdiction covering two of the four countries of the United Kingdom (‘UK’). England and Wales together form the constitutional successor to the former Kingdom of England and follow a single legal system, known as English law.

Spain has a civil law system, is a member of the EU and is also multi-jurisdictional. Some regions (Cataluña, Aragón, Navarra) have specific laws affecting the protection of adults. Matters not covered by those laws and regions without specific laws are subject to the Spanish Civil Code (‘CC’).

The United States of America is a physically large country, occupying nearly 3.5 million square miles. Its population of more than 321 million persons is distributed unevenly across its physical area, with over half living in a state located on either its east or west coast. It comprises fifty states, two commonwealths, three territories, and a number of island entities variously called possessions or territories. In addition, there are currently 566 federally recognized Native American tribes, each of which has sovereign authority with respect to a limited range of matters. The capitol city of Washington, DC, is an independent district not located within any state; it has a local government and is also subject to federal authority in some areas.

The Republic of Austria is a federal republic, divided into nine states (‘Bundesländer’), which have legislative competences of their own. The judiciary is considered to be the third pillar of the Austrian constitutional system, together with legislation and administration; the doctrine of a separation of powers, judiciary, and administration (executive) means that they are separated in all instances. Austria is a civil law country; its legal system is based on Roman law.

Australia is a common law country. Australia is a federation of five states and two territories. Laws affecting adults in need of protection are generally made at state level. In Victoria, adult protection matters are decided by the Victorian Civil and Administrative Tribunal (‘VCAT’) in its Guardianship List. VCAT is the lowest court body—with Magistrates, County, and Supreme Court the hierarchy within the state. The High Court of Australia is the highest appellate court.

Under the concept of one country, two systems, even though the Hong Kong Special Administrative Region (‘SAR’) is politically part of the People’s Republic of China (‘PRC’), its legal system is distinct from that of the PRC. The SAR has a common law system whilst the PRC has a civil law system. However none of the decisions of the PRC courts affect adults in the SAR. At first instance are various Magistrates’ Courts, Tribunals, the District Court, and the Court of First Instance (‘the FI Court’). Generally, appeals from those Courts and Tribunals are heard by the Court of Appeal (individual Courts and Tribunals may have procedures for self-review for some types of proceedings). The FI Court and the Court of Appeal are collectively called the High Court. Appeals from the Court of Appeal are heard by the Court of Final Appeal, which is the pinnacle of the judicial hierarchy in the SAR.

The Netherlands is a unified kingdom and member state of the EU, with a civil law system. The court of first instance is either the District Court (Rechtbank) or the Sub- District Court (Kantonrechter—‘KR’). KR is part of the District Court.

The United States is a common law country. It is a federal republic of fifty states and a federal district. Laws affecting the protection of adults are predominantly made at state level. California has not adopted the Uniform Probate Code, the Uniform Power of Attorney Act, the Uniform Guardianship and Protective Proceedings Act, or the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act described in Chapters 24.

Part II of this book addresses Hague 35, the first modern attempt by states to create a coherent mechanism to enable the cross-border protection of vulnerable adults. The Part is divided into the following four chapters: This chapter places Hague 35 in its context, because that context is essential to understanding both the structure and the detail of the framework that the Convention seeks to erect.

Ireland is an island in north-western Europe. It is divided into the state called Ireland, often referred to as the Republic of Ireland, which comprises the greater part of the island of Ireland, and Northern Ireland. This chapter relates to the law of Ireland and references to the ‘State’ refer to the Republic of Ireland.

France is a unitary republic, divided into ninety-six metropolitan departments, five overseas departments and seven overseas territories. The judicial authority is the third authority referred to in the constitution of October 4, 1958, together with the legislature (Parliament) and the executive (Government). France is a civil law country; its legal system is based on Roman/Napoleonic law and was codified in 1804 (code civil). The code civil applies to all departments and overseas territories with limited exceptions for the latter.

Germany is a federal republic consisting of 16 member states (Länder). At the municipal level, local government rests with districts (Kreise) and municipalities (Städte, Gemeinden). According to the German Constitution (Basic Law—Grundgesetz), legislation as well as administration is at member state level except where the constitution provides otherwise. For a brief account of the principal legislation relevant for the protection of Adults see paragraph 22.14 below.

Brazil is a civil law country, with mainly codified law, but which as a result of increasing common law influence is moving towards being a hybrid system. Brazil is a federal republic. States have their own laws and courts, but adult incapacity issues are governed mainly by federal law. State courts have jurisdiction in procedure for incapacitation. Cases are normally heard at first instance in specialized family and succession courts. The federal constitution of 1988 is frequently cited. International conventions approved by qualified majorities in both Houses of Congress attain the status of constitutional amendments. This applies, for example, to UN CRPD. The current civil code dates from 2002. There are in addition relevant statutes, particularly the Statute of Elderly Persons 2003 (‘2003 statute’).

Private International Law (PIL) deals primarily with the application of laws in space and time to decide the circumstances in which foreign law will apply. The local courts at a particular time are sovereign and can define as they wish, and place a boundary at that or any other time as they think appropriate. Unlike garden fences, the boundaries created by separate countries’ legal systems rarely meet, and can be in different places at different times. Each country has its own separate and distinct Private International Law rules which do not necessarily mesh with the PIL of another state.

Estonia became an independent country in 1918 following centuries of domination—at different times—by Sweden, German-speaking Teutonic Knights, and Russia. After annexation by the Soviet Union, then occupation by Germany, Estonia was again occupied by the Soviet Union from 1944. Independence was restored by proclamation on 20 August 1991 by the Estonian Supreme Soviet, acting in agreement with the Estonian Committee (the executive organ of the Estonian Congress). That proclamation was rapidly followed by the restoration of diplomatic relations and recognition of the Republic of Estonia by many countries.

New Zealand is a common law country. The judicial structure is the Supreme Court and the Court of Appeal, which are appellate courts only; the High Court, which hears appeals from District Courts in some situations but is also a court of first instance; the District Court, which is principally a court of first instance but also hears appeals from some Tribunals; and various Tribunals. There is also a Family Court, in which warranted District Court judges sit, and which—along with the High Court—deals with adult protection matters.

The same broad questions of Private International Law arise in the context of the protection of the property of the adult as they do in relation to their person. In other words, in any case with a cross-border element, it will be necessary to consider questions such as which court has jurisdiction over the person, which state’s laws will be applied, and whether orders made in one state will be recognized by the authorities (whether they be administrative or judicial) of a different state. It will also be necessary to consider whether any form of Private Mandate granted by the adult intended to survive (or take effect) upon incapacity will be effective in another state.

Canada is a federation composed of ten provinces, including Saskatchewan, and three territories. The common law applies in Canada, with the exception of the province of Quebec, which uses a civil law system. There is a federal government; as a province, Saskatchewan also exercises constitutional powers in its own right. Federal legislation includes provisions relating to adults within the scope of this work. The Canadian Charter of Rights and Freedoms also guarantees certain political rights to Canadians and civil rights to everyone in Canada and contains rights that impact upon capacity law.