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Nord Stream 2 / Parlement et Conseil
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Le Tribunal de l’UE déclare irrecevables les recours introduits par Nord Stream AG et Nord Stream 2 AG contre la directive 2019/692 qui étend certaines règles du marché intérieur du gaz naturel aux gazoducs en provenance de pays tiers

Preliminary question and its context

In its Judgment of 7 May 2020, delivered in the joined cases C-267/19 and C-323/19 without Advocate General’s Opinion, the Court of Justice provides some further guidance on the implications of its previous case law and most notably of the Judgment in the case C-551/15, Pula Parking (‘Judgment in Pula Parking’).

Just as in the case that led to Judgment in Pula Parking, the requests for a preliminary ruling in the cases in question were lodged in the context of the proceedings on the oppositions to the writs of execution. Put succinctly: under the Croatian law, a notary issues a writ of execution based on an ‘authentic document’. The party against whom enforcement is sought may lodge an opposition to that writ. The court to which the opposition is transferred has jurisdiction to set aside the writ and to annul the measures taken so far. The procedure continues according to the rules applicable to cases of opposition to a payment order.

By way of background, in Judgment in Pula Parking, the Court held, inter alia, that ‘[the Brussels I bis Regulation] must be interpreted as meaning that, in Croatia, notaries, acting within the framework of the powers conferred on them by national law in enforcement proceedings based on an “authentic document”, do not fall within the concept of “court” within the meaning of that [Regulation]’.

The referring court in the present cases indicates that Judgment in Pula Parking receives various interpretation on the national level. It seems that the reading of this Judgment according to which it relates exclusively to enforcement proceedings conducted against a party being a natural person and national of another EU Member State prevails in the Croatian case law.

However, for the referring court, that reading of Judgment in Pula Parking establishes a discriminatory difference in the way in which the Brussels I bis Regulation is applied in Croatia. The referring court seems to understand that Judgment as implying that, in its Member State, notaries are not entitled to issue writs of execution based on an ‘authentic document’ and therefore, the fact that they continue to do so, is at odds with the Regulation.

In view of those explanations, at paragraph 42 the Court clarifies that it understands the request for a preliminary ruling as concerning the question whether Article 18 of the Treaty on the Functioning of the European Union and Article 47 of the Charter preclude national legislation entitling the Croatian notaries to issue the writs of execution on the basis of the ‘authentic documents’, which, in light of Judgment in Pula Parking, will not be recognized and/or enforced in other Member States under the scheme of the Brussels I bis Regulation.

 

Consideration of the question referred and what can be learned from it

At paragraph 43 the Court reaffirms that the writs of execution issued by the Croatian notaries would not benefit from the scheme of the Regulation when it comes to their recognition and/or enforcement. At paragraph 44, the Court reminds that Judgment in Pula Parking does not imply, however, that the Brussels I bis Regulation prevents the notaries from issuing the writs of execution. The references to Judgment in Pula Parking pave the way for the conclusion that neither Article 18 of the TFUE (paragraph 45), nor Article 47 of the Charter (paragraph 53) preclude national legislation entitling the notaries to issue the writs of execution which do not benefit from the recognition/enforcement scheme of the Regulation.

Incidentally, given that according to Judgment in Pula Parking the notaries do not fall within the concept of ‘court’ within the meaning of the Brussels I bis Regulation, paragraph 43 seems to imply that a writ of execution based on a ‘authentic document’ would not be recognized and/or enforced as ‘judgment’ within the meaning of Article 2(a) of the Regulation.

Neither the joined cases in question, nor the case that led to Judgment in Pula Parking offered an opportunity to address the question whether a writ of execution issued by a notary could be enforced under the scheme of the Brussels I bis Regulation as an ‘authentic instrument’ in the sense of Article 2(c) of the Regulation. In any case, an ‘authentic document’ on which a writ of execution is based cannot, in my view, be automatically placed on the same footing as such ‘authentic instrument’. Therefore, a writ of execution would not necessarily have to be an ‘authentic instrument’ based on an ‘authentic instrument’.

For the sake of completeness, AG Bot touched upon a somehow similar question in the context of the Regulation No 805/2004 (Regulation on European Enforcement Order for uncontested claims) in his Opinion in the case C-484/15, Zulfikarpaši. At points 45 to 49, he considered that a writ of execution is not an ‘authentic instrument’ within the meaning of Article 3(1) of that Regulation because the writ does not concern an uncontested claim. That argumentation is in line with the interpretation that the Court presented in its Judgment in that case and in particular at its paragraph 55. However, such argumentation could most probably not be directly transposed to the Brussels I bis Regulation as this Regulation does not confine its scope solely to uncontested claims.

It is also worth noticing that the Judgment of 7 May 2020 makes a point that exceeds the scope of the inquiry on the implications of Judgment in Pula Parking for the Croatian legal system. At paragraphs 33 et seq., in the part of the Judgment of 7 May 2020 relating to the jurisdiction of the Court, the criteria set in Article 3(1) of the Regulation no 1896/2006 (Regulation on European Order for Payment) in order to define a ‘cross-border case’ within the meaning of that Regulation are referred to in order to establish the existence of an international element that is necessary for the Brussels I bis Regulation to become applicable to a specific case.

The requests for a preliminary ruling in the cases in question can be consulted here and here. For numerous linguistic versions of the Judgment see here (no English version yet).

by Jie (Jeanne) Huang, Sydney Law School

 

On 19 May 2020, the Supreme Court of New South Wales rendered the judgment in Bao v Qu; Tian (No 2) and decided to enforce a monetary judgment issued by the Qingdao Intermediate People’s Court of Shanghai Province, China. This is the first case at the state of NSW in Australia where a Chinese monetary judgment got enforced.

The Chinese judgment-rendering proceedings

Both plaintiff and the defendants are citizens of China. The two defendants were a couple. The defendants allegedly did not pay loans borrowed from the plaintiff. In 2014, the People’s Court of Laoshan District Qingdao handed down the first-instance judgment for the plaintiff. One defendant appealed. Both defendants were represented in the second-instance trial at the Qingdao Intermediate People’s Court of Shangdong Province (‘Qingdao Court’). The Qingdao Court rendered the final judgment (‘Chinese judgment’) ordering the defendants to pay RMB 2,050,000 plus interest to the plaintiff in 2015. The Chinese judgment was partly enforced in China but largely remained outstanding.

The NSW judgment-enforcement proceedings

The plaintiff applied to enforce the Chinese judgment at the Supreme Court of NSW in 2019 under the common law. The defendants are resident in NSW and were personally served with the court proceedings.

The defendants conceded that the Qingdao Court had jurisdiction, the Chinese judgment was final and conclusive, and they were judgment debtors. However, they alleged that a substantial amount of money had been returned to the plaintiff before the Chinese judgment was rendered. The plaintiff rejected this argument alleging that the defense went to the merits of the Chinese judgment that should not be reviewed by the NSW court at the judgment recognition and enforcement (‘JRE’) proceedings.

The NSW court holds that defendants submitted to the jurisdiction of Chinese court by their procedural conducts. There is no evidence of any step taken to challenge the Chinese judgment in China. The first issue at the NSW proceeding is whether the Chinese judgment is obtained by fraud. Namely, whether the Chinese court was intentionally or recklessly misled into determining the incorrect value of the debt by not being made aware of the alleged repayments. The NSW court held that one of the alleged repayments seemed to have been raised in the Chinese proceedings but ultimately rejected by the Chinese Court. No evidence showed that Chinese Court denied the defendants the opportunity to presenting their case before an impartial tribunal or that the defendants were otherwise not given due notice. There was also no evidence showing that the alleged repayments were not reasonably discoverable at the time of the Chinese proceedings. Further, nothing proved that the alleged repayments had ever occurred or were related to the loans decided in the Chinese judgment. In conclusion, NSW court rejected the alleged repayments and refused to review the merits of Chinese judgment.

The second issue focuses on the legal nature of the punitive interest awarded in the Chinese judgment. The Chinese judgment included two types of interests. The first is the general interest calculated at the ‘benchmark interest rate for the loans in the same type as issued by the People’s Bank of China for the same period’. The second is the punitive interest awarded according to Article 253 of Chinese Civil Procedural Law, being that ‘if the judgment debt was not satisfied by 20 September 2015, then “the interest on the debt during the period of delay in fulfillment shall be paid at the double amount”.’ The court held that no submissions were made that the imposition of Article 253 interest was penal in nature, so it should be awarded.

Comments

1. Reciprocity

China is not listed in the Foreign Judgments Act 1991 (cth), so Chinese judgments cannot benefit from the ex parte registration process. Nevertheless, Chinese judgments can be recognized and enforced under the common law in Australia. However, China requires de facto reciprocity. This is demonstrated by a reply issued by the Chinese Supreme People’s Court in 2006, which provides that judgments issued in Australia cannot be recognized and enforced in China because Australia has not offered reciprocity to Chinese judgments.[1] Liu v Ma & anor [2017] VSC 810 is the first Chinese monetary judgment recognized and enforced in the state of Victoria. By Bao, the NSW court also enforced a Chinese monetary judgment. Considering the recent JRE development in Australia, Chinese Supreme People’s Court should review the 2006 reply. De facto reciprocity should have been established between China and Australia (or at least the states of Victoria and NSW). Judgments issued in Australia should be recognized and enforced in China if they do not violate the basic principles of Chinese law and the sovereignty, security and public interest of China according to Article 282 of Chinese Civil Procedure Law.

2. The alleged repayment

According to the NSW court, the Chinese judgment indicates that the Chinese court ‘refuse[d] to consider this request [to reduce the judgment debt as a result of the alleged repayment of RMB 200,000]’ because this claim ‘exceeded the scope of the Appellant’s claim’. The Chinese court’s rejection does not violate natural justice. This is because according to Chinese Civil Procedure Law, an appeal should be brought within 15 days after the first-instance judgment is served. If a party fails to bring a claim within this time period, the party loses its right to appeal. In practice, some appellants may bring an appeal within the time limit without clearly listing the claims and later try to add new claims. This practice goes against the seriousness of appeal. It is also inconsistent with the fairness and efficiency of litigation because the respondent should be served with the new claim and given a reasonable time to prepare the defence. Therefore, as a general principle, Chinese courts do not consider a new claim if it is not raised in the appeal petition.[2]

3. Double interest

Australian courts do not enforce foreign punitive damages that aim to ‘penalise the [ ] defendant and to deter others from failing to comply with the Court’s orders’ (Schnabel v Lui [2002] NSWSC 15 at [176]). However, the courts can enforce punitive damages that were to compensate the plaintiff’s private right due to the defendant’s deliberate and callous conduct and involved no public connotation in the remedy (Benefit Strategies Group v Prider [2004] SASC 365 at [72]).

Article 253 of the Chinese Civil Procedure Law provides that ‘if the party against whom enforcement is sought fails to pay money within the period specified in the judgment, he or she shall pay double interest for the debt for the period of delayed performance.’

The double interest imposed by this provision intends to punish the defendant for the delay of executing the judgment and remedy the plaintiff’s private right. It is not for the public interest of Chinese state. Therefore, the court correctly decided that the double interest should be enforced at the NSW.

 

[1] Letter of Reply of the Supreme People’s Court on Request for Instructions Re Application of DNT France Power Engine Co., Ltd. for Recognition and Enforcement of Australian Court Judgment [2006] Min Si Ta Zi No 45.

[2] There are few exceptions to this general principle. For example, the respondent agrees to add the new claim to the trial, or the new claim involves a fact which must be investigated by the court rather than the parties and without the finding of this fact, the case cannot be correctly decided.

The most recent issue of the Revue Critique de Droit International Privé is out. It contains three articles and numerous case notes.

In the first article, Roxana Banu (Western Law, Canada) discusses the scholarship of J. Jitta  (L’idéalisme pragmatique de Josephus Jitta (1854-1925)).

 Jitta occupied a very specific intellectual space between universalism and particularism and between state-centric and individualistic theoretical perspectives. His scholarship formed a different, quite radical alternative to the dominant private international law theory and methodology of his time. He rejected the conventional understanding of Savigny’s method of localizing transnational legal matters, fundamentally contested the premise that one could choose a law in disregard of its content, and refused to center private international law’s theory on the concept of state sovereignty. Yet his initially radical ideas evolved in a more pragmatic direction on contact with the great socio-political transformations following the First World War. This progression of his thought provides us with much to learn, while calling at the same time for a critical approach.

In the second article, Vincent Heuzé (University of Paris I) challenges the soundness of the doctrine of overriding mandatory provisions and argues that it is illogical and useless (Un avatar du pragmatisme juridique : la théorie des lois de police).

Pragmatism, as a legal theory, revolves around the refusal “to let itself be enclosed” in any given “system”. Such theory refutes giving in to a model of logical thinking. The triumph of legal pragmatism is best illustrated in private international law by the theory of the overriding mandatory provisions. The latter concept –to the extent its outcome was held as a genuine method– in fact only served as to legitimate a pragmatic legal vision. Indeed, such legal pragmatism theory is necessarily false, not to say useless, to that extent that it is incapable of upholding the solutions she inspired.

Finally, in the third article, Ilaria Pretelli (Swiss Institute of Comparative Law) explores some of the consequences of the Feniks case of the CJEU (case C-337/17).

Four CJEU judgements have up to now clarified the applicability of the Uniform European jurisdiction rules – the Brussels I system – to the modern versions of actio pauliana: the two Reichert cases (cases C-115/88 and C-261/90) had said what the pauliana is not; the recent obiter dictum in Reitbauer (case C-722/17) and, more substantially, Feniks (case C-337/17) have said what it is. In essence, the CJEU confirms that actio pauliana is a claim related to a contract with the consequence that the defendant may be sued both at his domicile – under art. 4-1 Brussels I a – and, alternatively, at the forum of the “obligation in question” – – under art. 7-1 Brussels I a. These two decisions have been discussed and mainly criticized by legal scholars (see for instance these posts here and here). who have voiced the inherent dangers of accepting the risk for the defendant of being attracted in an unpredictable forum. The 2018 decision on Feniks has seemed to open the path to an even greater uncertainty since, of the two contractual relations giving the cause of action to the claimant, the CJEU seem to have given relevance to the one between the creditor and the debtor, thus a relation to which the defendant is formally excluded.

The need to scrutinise the substantial – instead of the purely formal – relation between the defendant and the claimant is at the core of an analysis of Feniks appeared in the first issue of this year’s Revue critique de droit international privé. The circumstances of the case show in an unequivocal manner how involved the defendant appeared to be in the tactical sale operated by the debtor. In this respect, the Spanish forum of the domicile of the defendant might have well created complications suitable for the fraud against the creditor to succeed. The particular structure of the pauliana, constructed to unmask apparently legitimate operations, justifies a departure from a strict and formal interpretation of “predictability”.

The first consequence drawn by the author of the comment concerns the potential comprehensiveness of the alternative fora described in art. 7 Brussels Ia.

The author sees no reasons to discriminate claimants because of the subject of their claim. If an alternative is given in most of civil and commercial matters, why shouldn’t it be given to one or two of these. What is essential, and what the CJEU constantly underlines, is the existence of a narrow connection between the claim and the forum. In Feniks, many elements testified of the narrowness of the connection (the identity of the parties, the language of their pacts etc.).

The second topic of the comment addresses the core problem of trilateral situations that arise from two distinct legal (bilateral) relations: the difficulty of choosing ex ante the “obligation in question” for the effects of art. 7-1 Brussels I a.

As the majority of scholars has rightly pointed out, whenever the defendant is in good faith, it is absolutely unfair to give to the claimant the possibility of suing him or her in front of an unpredictable judge, such as the judge of the unperformed contract to which the defendant has never been part.

Since the pauliana consists in the reaction to a fraudulent, albeit apparently legitimate, contract, its transposition in private international law commands to avoid an aprioristical choice and suggests to give to the judge in question the power to decide which “obligation in question” needs to be taken into account in order to avoid, on the one hand, to manipulate the system in order to uphold the fraud and, on the other hand, that the defendant is sued in a forum for him truly unpredictable.

This solution promotes “good faith” to a connecting factor in line with the existing series of content-oriented and result-selective conflicts rules.

In sum, despite the laconicism of the decisions and the understandable reticence of scholars to accept them, Feniks and Reitbauer have eventually opened the right path for a uniform European jurisdictional rule for the national versions of actio pauliana.

The full table of contents is available here.

AB v EM [2020] EWHC 549 (Fam) concerns for a large part the application of Brussels IIa’s traditional jurisdictional rules (habitual residence etc.) and I shall not comment on those.

Of interest to the blog are, first, at 37 ff the application of the Regulation’s forum non conveniens rules: in that respect, compare with my posts on V v M and W v L. Further, the question whether the order made by the Sunnite Sharia Court of Beirut on 6 February 2019 in proceedings commenced by the mother in Lebanon in November 2018, incorporating and approving an agreement between the parties to these proceedings regarding custody and access with respect to M, capable of recognition in the UK and, if so, what impact should this have on the UK courts’ welfare determination?  The 2019 agreement established that the father would have custody of M and would reside with M in either the United Kingdom, Egypt or some other location of his choosing.

MacDonald J at 71-73, having referred to the spirit of comity, does not hold on what at 73 are briefly refered to as ‘wider criticisms’ of the February 2019 Order, or the allegations of durress in the coming to be of that order. He notes more as a matter of fact that circumstances in the child’s welfare have changed since the Order, and that the father did not at any rate honour elements of the agreement which the Order had confirmed.

No grand statement of principle, therefore. Rather, a measured practical approach.

Geert.

Brussels IIa.
Jurisdiction. Wrongful removal.
Recognition of order made by Sunnite #Sharia Court of Beirut on 6 February 2019 in proceedings commenced by the mother in Lebanon in November 2018, incorporating agreement between parties. https://t.co/72bfIuq3VH

— Geert Van Calster (@GAVClaw) March 16, 2020

Thank you Michael Douglas for alerting me to Bao v Qu; Tian (No 2) [2020] NSWSC 588 at the Supreme Court of New South Wales. The judgment does not require an extensive post. I report it because it is a solid application of the recognition and enforcement principles of foreign judgments under the common law of Australia. Hence good material for the comparative conflicts folder.

Geert.

 

The Court of Justice delivered last week (14 May 2020) its judgment in case C-17/19 (Bouygues travaux publics, Elco construct Bucarest, Welbond armatures), which is about the A 1 certificate (Article 19(2) of Regulation No 987/2009 – see below):

Question: “‘Must [Article] 11 of Regulation [No 574/72] and [Article] 19 of Regulation [No 987/2009] be interpreted as meaning that an E 101 Certificate issued by the institution designated by the competent authority of a Member State, under […] Regulation No 1408/71 … or an A 1 Certificate issued under Article 13(1) of Regulation No 883/2004 … is binding on the courts of the Member State in which the work is carried out when it comes to determining the legislation applicable, not only as regards the social security system but also as regards employment law, where such legislation defines the obligations of employers and the rights of employees, so that, having heard the arguments of the parties, those courts can disregard the abovementioned certificates only if, on the basis of an assessment of specific evidence, collected in the course of the judicial investigation, which supports the conclusion that the certificates were fraudulently obtained or relied on and which the issuing institution failed to take into account within a reasonable time, the said courts make a finding of fraud, comprised, as regards its objective element, by the failure to meet the conditions laid down in either of the aforementioned provisions of Regulations [No 574/72] and [No 987/2009] and, as regards its subjective element, by the intention of the accused person to evade or circumvent the conditions for the issue of that certificate, in order to obtain the advantages attaching thereto?’”

Reminder of some key provisions:

“Regulation No 883/2004
8 Regulation No 1408/71 was repealed and replaced with effect from 1 May 2010 by Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems
[…]
10 Article 13(2)(a) of Regulation No 1408/71 was replaced, in essence, by Article 11(3)(a) of Regulation No 883/2004, which provides that ‘subject to Articles 12 to 16 … a person pursuing an activity as an employed or self-employed person in a Member State shall be subject to the legislation of that Member State’.
11 Article 14(1)(a) of Regulation No 1408/71 was replaced, in essence, by Article 12(1) of Regulation No 883/2004, which provides that ‘a person who pursues an activity as an employed person in a Member State on behalf of an employer which normally carries out its activities there and who is posted by that employer to another Member State to perform work on that employer’s behalf shall continue to be subject to the legislation of the first Member State, provided that the anticipated duration of such work does not exceed [24] months and that that person is not sent to replace another posted person’.
12 Article 14(2)(b) of Regulation No 1408/71 was replaced, in essence, by Article 13(1) of Regulation No 883/2004, which provides:
‘A person who normally pursues an activity as an employed person in two or more Member States shall be subject to:
(a) the legislation of the Member State of residence if he/she pursues a substantial part of his/her activity in the Member State of residence; or
(b) if he/she does not pursue a substantial part of his/her activity in the Member State of residence…’
[…]

Regulation No 987/2009

15 Regulation No 574/72 was repealed and replaced, with effect from 1 May 2010, by Regulation No 987/2009.
16 Article 5(1) of Regulation No 987/2009 provides:
‘Documents issued by the institution of a Member State and showing the position of a person for the purposes of the application of the basic Regulation and of the implementing Regulation, and supporting evidence on the basis of which the documents have been issued, shall be accepted by the institutions of the other Member States for as long as they have not been withdrawn or declared to be invalid by the Member State in which they were issued.’
17 Article 19(2) of Regulation No 987/2009, which partly replaced Article 11(1)(a) and Article 12a(2)(a) and (4)(a) of Regulation No 574/72, provides that ‘at the request of the person concerned or of the employer, the competent institution of the Member State whose legislation is applicable pursuant to Title II of [Regulation No 883/2004] shall provide an attestation that such legislation is applicable and indicate, where appropriate, until what date and under what conditions’. That attestation is issued by means of a certificate (‘the A 1 Certificate’)”.

Response from the Court of Justice: “Article 11(1)(a), Article 12a(2)(a) and (4)(a) of Council Regulation (EEC) No 574/72 of 21 March 1972 laying down the procedure for implementing Regulation (EEC) No 1408/71 on the application of social security schemes to employed persons, to self-employed persons and to their families moving within the Community […] and Article 19(2) of Regulation (EC) No 987/2009 of the European Parliament and of the Council of 16 September 2009 laying down the procedure for implementing Regulation (EC) No 883/2004 on the coordination of social security systems, must be interpreted as meaning that an E 101 Certificate, issued by the competent institution of a Member State, under [Regulation (EEC) No 1408/71] to workers employed in the territory of another Member State, and an A 1 Certificate, issued by that institution, under Article 12(1) or Article 13(1) of Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems […] to such workers, are binding on the courts or tribunals of the latter Member State solely in the area of social security”.

Source: here

Les agents des douanes ne peuvent procéder à une telle audition libre au cours de l’exercice du droit de visite lorsque celui-ci s’accompagne d’une mesure de contrainte.

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Non lieu à renvoi

As mentioned in my previous post, the Zeitschrift für Recht und Islam / Journal of Law & Islam issued a Call for Papers and kindly provided the following information:

The Zeitschrift für Recht und Islam / Journal of Law & Islam (ZR&I, previously: GAIR-Mitteilungen) is a scientific journal in co-operation with the Gesellschaft für Arabisches und Islamisches Recht e. V. (GAIR), a non-profit scientific association established in 1997. Its aim is the furthering of mutual understanding of law, legal systems and legal practice between European scholars and those of the Arabic and wider Islamic region.

The annual scientific journal contributes to this aim by publishing contributions on the legal developments in this field, covering theoretical legal debate as well as the practical application of both secular and Islamic laws. The journal gives space to a wide range of perspectives and takes regard of the historical development as well as the interaction of “secular” and Islamic laws in different contexts. Its analyses and debates go beyond the basic principles and outlines of those legal systems, but also address the actual developments, both in aspiration and reality. In addition, it covers key phenomena affecting – or even determining – scientific discourse, legislation and legal practice in the relevant states. This focus does however not confine itself to topics of specific or general regional interest, but also addresses the influence of global develop-ments and tendencies, as well as the legal relations among states.

Accordingly, we invite well-known and junior scholars as well as practitioners to help furthering this mutual understanding and dialogue by submitting publishable manuscripts. In view of imple-menting the aims of our association in a full and broad manner, the editors welcome contributions from specific disciplines, as well as interdisciplinary contributions that address the aspects above. We highly welcome the submission of articles, reports and reviews as well as case reports and comments on cases and legislation to the editorial double peer review process. Submissions must, however, not have been published or submitted for publication elsewhere.

The editors accept submissions in German and English. Please send your contributions to zri@gair.de, enclosing a brief personal description (no detailed curriculum vitae required). We kindly ask you to provide your submissions in the following format:

• submissions should have the formats doc, docx, odt or rtf,
• concerning fonts, we recommend Times New/Beyrut Roman, Arial, Junicode please use Unicode-characters for diacritic purposes
• use footnotes instead of a separate bibliography;

Bibliographical references should include:

1) concerning monographs and miscellanies:

a) Christian Starck (ed.): Constitutionalism, Universalism and Democracy – a Compar-ative Analysis, Studien & Materialien zur Verfassungsgerichtsbarkeit 75, 1999.

b) Matthias Herdegen: Constitutional Rights and the Diminishing State, in: Constitu-tionalism, Universalism and Democracy – a Comparative Analysis, Studien & Materialien zur Verfassungsgerichtsbarkeit 75, ed. by Christian Starck, 1999, pp. 183–198.

2) concerning articles:

a) William M. Ballantyne: The New Civil Code of the UAE: A Further Reassertion of the Shari?a, in: Arab Law Quarterly 3 (1985), pp. 245–264.

3) concerning internet sources: www.aladalacenter.com (last access 15.10.2017).

Quotes from the Arabic language that go beyond technical terms or short phrases should, in addition to the Arabic original, be provided in transcribed form (using an accepted scientific transcription system such as DMG or Encyclopaedia of Islam) and in translation.

Each submission will be subject to a double peer review procedure by two anonymous colleagues in the relevant area. Once their reports on a submission have been received, the authors will be notified whether their submission is accepted, accepted subject to changes, or rejected. The editors will be overseeing this process and make the final decision on publication. All authors will receive their contribution with editorial changes for a final review prior to publication.

For any queries please contact Sina Nikolajew from the editorial team, as well as the editors Beate Anam, Dr Hatem Elliesie, Kai Kreutzberger and Prof Dr Dr Peter Scholz at zri@gair.de.

Information about the journal (in English) is availabe here.

Travail dissimulé

Volume 11/2019 of the Journal of Law & Islam / Zeitschrift für Recht & Islam (ZR&I) has just been published. The full issue is available online here. It includes case notes and articles devoted to questions of Islamic law and its interaction with other legal systems. Some of the articles are in English or French.

The Journal editors were so kind to provide me with English translations of the German articles:

Zeitschrift für Recht & Islam / Journal of Law & Islam ZR&I Volume 11 (2019)

EDITORIAL ………. (pp. 5 f.)

RECHTSPRECHUNG & URTEILSBERICHTE [CASE LAW & JUDGMENT DISCUSSION] ………. (pp. 5–12)

• Nichtanerkennung einer katarischen Privatscheidung: Anmerkung zu OLG Stuttgart, Beschluss vom 3.5.2019, Az. 3465 E – 519/18 [Non-recognition of a Qatari Private Divorce: Commentary on OLG Stuttgart, Decision of 3.5.2019, Az. 3465 E – 519/18] ………. (pp. 7–9), Peter Scholz
• Nichtanerkennung einer pakistanischen Adoptionsentscheidung: Anmerkung zu OLG Stuttgart, Beschluss vom 21. 1. 2019, Az. 17 UF – 25/18 [Non-recognition of a Pakistani Adoption Decision: Commentary on OLG Stuttgart, Decision of 21. 1. 2019, Az. 17 UF – 25/18]………. (pp. 11 f.), Peter Scholz

ARTIKEL [ARTICLES] ………. (pp. 13–173)

• Targih und madhab: Zur Rolle des targih-Verfahrens bei der Entwicklung der traditionellen islamischen Rechtsschulen [Targih and madhab: Regarding the Status of the targih Procedure in the Development of the Traditional Islamic Law Schools] ………. (pp. 13–37), Ahmed Gad Makhlouf
• Die Hisbollah und die schiitische Frau – ihre religiösen Rechte und entsprechende politische sowie öffentliche Darstellung [Hisbollah and the Shi’i Woman – Her Religious Rights and Corresponding Political aas well as Public Representation] ………. (pp. 39–56), Batol Kobeissi
• Die Fatwa-Praxis des schiitischen Großayatollahs Sayyid Muhammad Husain Fadlallah am Beispiel Masturbation [The Fatwa Practice of the Shi’i Great Ayatollah Sayyid Muhammad Husain Fadlallah Exemplified on Masturbation] ………. (pp. 57–78), Doris Decker
• Zur Geschichte zweier hadite, die häufig in der Diskussion über FGM zitiert werden [On the Historical Derivation of two hadite Commonly Cited in the Discussion about FGM] ………. (pp. 79–104), Thomas Eich
• Die Talaq-Scheidung und das deutsche Recht [Talaq Divorce and German Law] ………. (pp. 105–112), Christian F. Majer
• Zum Straftatbestand der Kindesmisshandlung: Ein Blick auf die Rechtspraxis in Saudi-Arabien [The Criminal Offense of Child Abuse: Reflections on the Legal Practice in Saudi Arabia] ………. (pp. 113–144), Elisa Schweitzer
• The Recognition and Enforcement of German Money Judgments in Turkey………. (pp. 145–151), Hamit Alp Ünlü
• La finance islamique au service de l’économie sociale et solidaire de l’occident [Islamic Finance and its Service for the Social and Solidarity Economy of the Occident] ………. (pp. 153–173), M’hamed Hamidouche & Amina Berkane & Ahmed Berkane

TAGUNGSBERICHTE [CONFERENCE REPORTS] ………. (pp. 175–189)

The Hanafi School: History, Transformations, and Future, 3–5 December 2018, Amsterdam ………. (pp. 175–186), Samy Ayoub

TIF 2019 – Tunisia Investment Forum, 20. und 21. Juni 2019 in Tunis [TIF 2019 – Tunisia Investment Forum, 20 and 21 June 2019 in Tunis] ………. (pp. 187–189), Achim-Rüdiger Börner

REZENSIONEN [REVIEWS] ………. (pp. 191–199)

Rezension zu Adnan Trakic / John Benson / Pervaiz K Ahmed: Dispute Resolution in Islamic Finance. Alternatives to Litigation?, London / New York: Routledge 2019 [Review of Adnan Trakic / John Benson / Pervaiz K Ahmed: Dispute Resolution in Islamic Finance. Alternatives to Litigation?, London / New York: Routledge 2019] ………. (pp. 191–193), Kilian Bälz

Rezension zu Naseef Naeem: Der Staat und seine Fundamente in den arabischen Republiken, Berlin: Deutscher Levante-Verlag 2019 [Review of Naseef Naeem: Der Staat und seine Fundamente in den arabischen Republiken, (The State and its Foundations in Arab Republics), Berlin: Deutscher Levante-Verlag 2019] ………. (pp. 195–199), Achim-Rüdiger Börner

CALL FOR PAPERS ………. (pp. 201–204)

IMPRESSUM [IMPRINTS] ………. (pp. 205 f.)

For further information about the Journal see also its English page zri.gair.de/index.php/en.

The Journal also issued a Call for Papers which I will post seperately.

Jayne Holliday has written Clawback Law in the Context of Succession. The book is part of the Studies in Private International Law series published by Hart Publishing.

The blurb reads:

This book offers a global solution for determining the law applicable to a claim to clawback an inter vivos gift from a third party within the context of a succession. The book aims to identify an appropriate and applicable legal framework which supports legal certainty for cross-border estate planning and protects the legitimate expectations of the relevant parties. This is an area of private international law that has yet to be handled satisfactorily – as can be seen by the inadequate treatment of clawback from third parties in the 1989 Hague Convention on the Law Applicable to Succession to the Estates of Deceased Persons, and the 2012 EU Succession Regulation.

More information here.