Tag Archives: Treaties

Adopting a Mongolian Child: The International Adoption Framework

Every so often, our Mongolian lawyers receive an inquiry from a foreign couple, usually from the USA or Europe, seeking to adopt a Mongolian child.  When we get one of these inquiries, the first thing we do is explain some of the background to the international legal issues to the couple, then we get into the specifics of international adoption in Mongolia.

The adoption of a Mongolian child by a foreigner is governed under a few international Hague Conventions and by the Mongolia Family Law, Law on Legal Status of Foreign Nationals, and specifically by the Regulation on Procedure for Adoption of a Mongolian Child by Foreign Nationals.

From the international perspective, Mongolia has ratified the “Hague Convention on Protection of Children and Co-operation in Respect of Inter-country Adoption and the United Nations Convention on the Rights of the Child”. These two international conventions set specific rules for the protection of children and outline the rights and responsibilities of countries as regards international adoption.

In the event of suitable adoptive parents cannot be identified in the country of origin of the child, international adoption is allowed. Under these conventions, the best interests of the child is the primary consideration, and is a basic right of the child to be adopted and must be confirmed by the prospective adoptive parents. In an international adoption, the prospective adoptive parents must meet the legal adoption requirements of their country of residence. The adoption must also meet the same safeguards and standards as applied to internal adoptions within the child’s country of birth.

So, for foreign couples considering adoption of a Mongolian child, the first step will be to obtain adoption approval in the country of the couple’s current residence. In our next post we will review the specific international procedures, and local Mongolian process for adoption.

Mongolia Employees and Employers: Know Your Rights

Mongolia has been a member of the International Labor Organization (ILO) since 1968 and has ratified 20 international conventions of the ILO, including all eight Fundamental Conventions, 2 of the 4 Governance Conventions, and 10 of 77 total Technical Conventions. Of the 20 Conventions ratified by Mongolia, 19 remain in force while 1 has been rescinded.

Through its ratification of all eight of the ILO’s fundamental conventions, Mongolia has recognized the following four fundamental principles and rights of the worker:

  • Ensuring freedom of association:
  • Eliminating child labour
  • Abolishing forced labour
  • Prohibiting non-discrimination in employment.

Recently, Mongolia hosted a National Workshop on International Labour Standards for members of the judiciary and lawyers. The workshop focused on application of labor rules by the courts domestic courts, and was organized in cooperation with the Mongolian Bar Association, the International Training Center of ILO and the ILO Country office for China and Mongolia (CO-Beijing).

Judges, attorneys and government officers participated in the training for 5 days. The training consisted of review of the ILO and international labour standards system, the use of the work of ILO’s supervisory bodies; and discussions as to when and how domestic judges and lawyers can use international labour law to effectively resolve labour disputes. Of key importance was ensuring the relevance of international labour standards in key situations with widespread practical application.

The workshop found that in practice, the international labour standards set out in the various conventions were not widely referred to or implemented by Mongolian lawyers and courts. This is determined to be primarily due to lack of knowledge of many of these professionals as to Mongolia’s ratification of these conventions, and the fact that due to inadequate translation into Mongolian, many professionals were not certain of the actual contents of the conventions.

The workshop focused on the importance training in strengthen participants’ knowledge and skill to effectively utilize these international labour sources to resolve employment and labor issues within Mongolia.  All participants noted that these international labour standards may be used directly to resolve the labour disputes or to interpret a relevant domestic provision to fill a gap and resolve ambiguities in the domestic law.

Proper awareness of and application of these international standards are vital for both Mongolian employees and expatriates working in Mongolia. Expatriate employees in Mongolia are granted equal  legal rights and protections, and should never feel their foreign employer has the upper-hand in cases of unfair termination or discrimination in Mongolia.

Mongolia Presidential Election Maintains Divide Between Presidency and Parliament

The people of Mongolia have just completed the election of the President of Mongolia. Battulga Khaltmaa, of the Democratic Party, is the victor. Mr. Khaltmaa follows Ts. Elbegdorj, also of the Democratic Party in serving as President. This will continue the previous dynamic of a Democratic Party President serving concurrently with a parliament dominated by the Mongolian People’s Party (MPP).

Mr. Khaltmaa achieved his win with 50.6% of votes cast, with a voter turn-out estimated at 60%. The MPP candidate received 41.2% of the vote, while 8.2% of ballots were returned in protest with no selection, a practice expressly allowed by the Election Law of 2015.

The MPP continues to hold a supermajority in parliament. Therefore, they will retain the capability to override any potential veto by Mr. Khaltmaa of proposed legislation. Still, his presence at the top is expected to force some concessions on the part of the parliament. Mr. Khaltmaa will be primarily responsible for foreign policy, and negotiations of treaties with foreign governments.

During the campaign, Mr. Khaltmaa advocated for state involvement in the economy, and management of natural resources. He has framed his pending presidency as a necessary balance against the MPP dominated parliament. It is expected that a period of adjustment will follow the election in which the parliament and Mr. Khaltmaa learn to work together and set boundaries.

Mr. Khaltmaa is called a Nationalist by Bloomberg. His campaign has promised to increase public access to wealth from Mongolia’s large resource mining projects. He has also promised to reduce trade imbalances Mongolia has with Russia China, a task which may be easier said than done. Even so, the rhetoric has not been overly hostile to foreign investment and the election is not expected to derail Mongolia’s recent efforts to revitalize its mining boom, or efforts to diversify its economy in the agricultural sector.

Enforcing a Foreign Arbitration Award in Mongolia

When negotiating the terms of an investment project, Foreign banks and other investors typically opt to go with foreign arbitration rather than litigation in Mongolia. At least five international arbitration proceedings have been well publicized in Mongolia since 2000. However it remains an open question as to whether the arbitration award is worth the high costs.

In 1994, Mongolia ratified the New York Arbitration Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958. Therefore Mongolia is obliged to recognize and enforce foreign arbitration awards produced under the jurisdiction of another state party to the Convention. Mongolia’s declarations in signing the Convention, indicating that Mongolia will apply the Convention only on the basis of reciprocity and only as to commercial disputes defined by Mongolian national laws, in most cases do not create a substantial barrier to enforcement.

The Law on Arbitration of Mongolia, 2003 has been drafted in compliance with the United Nations Commission on International Trade Law Model Law. The process of enforcing the award is fairly straightforward. The creditor must first formally request enforcement of a foreign arbitration award in the territory of Mongolia. In order to do that the creditor must submit the original copy of the final award with official translation to Mongolian and a judicial order warranting the feasibility of its enforcement. When the Court Decision Enforcement Agency receives the request, an Enforcement officer who will be in charge of this procedure will be assigned to collect on the reward. From then, the enforcement of the arbitration award is treated the same as enforcement of a Mongolian court decision, the enforcement officer will take all measures necessary to collect, as allowed by the law.

Even in Jail, There’s No Place Like Home

The number of Mongolians studying, working and travelling for business purposes abroad has steadily increased since 1990. As Mongolia’s relations with foreign countries around the world expand, so have the numbers of Mongolians traveling abroad. Unfortunately, this also means the number of Mongolians convicted of crimes abroad has also increased. Currently there are a total of 130 Mongolian citizens now serving jail time in foreign countries. These individuals face many difficulties such as the language barrier, extreme climates, and different qualities and preferences for food. Additionally, due to distance, these inmates have very limited opportunity to meet with family which may visit.

The Mongolian Government making efforts at bringing some small relieve to these convicts of criminal offences abroad, but expanding opportunities for them to serve sentences in their home country.

In the last years, Mongolia ratified the international Convention on the Transfer of Sentenced Persons, established in Strasbourg on March 21, 1983. It has been ratified by 65 countries, including every country of the Council of Europe (except Monaco), in addition to Australia, Canada, Japan, South Korea, Mexico and the United States. Under the provisions of this convention, Mongolian convict within member countries have been transferred to Mongolia.  At the same time, foreign convicts in Mongolia can be transferred to their home countries via the Convention or through bilateral agreements with Mongolia.

Mongolia has concluded a Bilateral Treaty on the transfer of sentenced person with seven countries, namely Peoples Republic of China, Russia, Canada, Poland, Turkey, South Korea and Cuba. At the beginning of 2016, the Parliament approved the bilateral agreement with Government of Hong Kong Special Administrative Region of the People’s Republic of China. As a result, nine Mongolian convicts serving jail time in Hong Kong are now eligible to be transferred to Mongolia.

Enforcement of a Foreign Judgment in Mongolia

We have recently handled a litigation case involving enforcement of a foreign judgment in Mongolia. While, Mongolia has no specific detailed law dedicated to addressing issues in connection with enforcement of foreign court decisions, there are provisions set forth in Article 194.1 of the Civil Proceeding Law stating, “Procedures for the enforcement of Mongolian and foreign Courts decisions are determined by the legislation of Mongolia, the international treaties Mongolia has concluded with a foreign country or to which is a party.” Chapter 11 of the Law on Enforcement of Court Decisions also confirms enforcement of a foreign court judgment is regulated by the laws and regulations of Mongolia, by a treaty entered with the foreign country and by international treaties to which Mongolia is party.

 In Mongolia, both foreign and domestic persons are entitled to request enforcement of a foreign court decisions in the territory of Mongolia. The Court Decision Enforcement Agency is entitled to enforce court decision of foreign courts and international arbitration if so specified in the international treaty.

 In international civil procedure matters, Mongolia has ratified the 1954 Hague Convention on Civil Procedure. Furthermore, Mongolia has concluded a Bilateral Treaty to Mutually Provide Legal Aid in Civil and Family Cases with several countries, including Peoples Republic of China, Russia, France, Bulgarian, Poland, Ukraine, Hungary, India and both North and South Korea. Unfortunately, Mongolia has not signed a treaty with some of the larger developed countries, including the United States of America, United Kingdom, Japan, Australia and German, with respect to mutual recognition of court judgments.

 In order to be enforced in Mongolia, a foreign court decision must first be confirmed and accepted by the court that made the decision to compel enforcement in Mongolia. Further, the foreign court decision must be officially translated into Mongolian and delivered to the court along with relevant evidences in accordance with the proper regulation under the Bilateral treaty between the countries or international treaty.

If any of the following situations would occur pursuant to the enforcement of a foreign court judgment here in Mongolia, a foreign court decision will not be enforced in Mongolia:

  • if  damage to the independence and national security of Mongolia may occur;
  • if it contradicts commonly accepted norms;
  • if there is a valid court decision made by Mongolian courts on the case in question;
  • if the court decision is related to litigation that belongs to the special jurisdiction of Mongolian courts;
  • if the court decision is not yet validated; or
  • statute of limitation for enforcing a foreign court judgment has lapsed.

All of that said, as a practical matter, Mongolian courts rarely enforce foreign court judgments, though it is possible. Foreign court decisions related to family issue, specially divorce, and the child custody and maintenance have increasingly been enforced over the past two decades.