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Irwin Law has published (August 2016) the second edition of Conflict of Laws by Stephen Pitel (Western University) and Nicholas Rafferty (University of Calgary).  This treatise aims to explain and analyze the rules of the conflict of laws in force in common law Canada in a clear and concise manner.  For the second edition, the chapter on jurisdiction has been rewritten in light of the Supreme Court of Canada’s decision in Club Resorts Ltd v Van Breda (2012) and the evolving jurisprudence under the Court Jurisdiction and Proceedings Transfer Act.  In addition, a new chapter on matrimonial property division has been added.  All chapters have been updated to reflect new decisions, legislative changes and recent scholarship.

The first edition (2010) was shortlisted for the Walter Owen Book Prize and has been cited in decisions of courts across Canada including the Supreme Court of Canada.

More information is available here.

By Decision (EU) 2016/1366 of 10 August 2016, the European Commission confirmed the participation of Estonia in the enhanced cooperation that led to Regulation (EU) No 1259/2010 on the law applicable to divorce and legal separation (Rome III).

The Rome III Regulation will apply to Estonia from 11 February 2018. Its rules will only apply in Estonia to legal proceedings instituted and to choice-of-law agreements concluded as from the latter date. However, effect shall also be given in Estonia to an agreement on the choice of the applicable law concluded before 11 February 2018, provided that it complies with Articles 6 and 7 of Regulation.

Seventeen Member States, including Estonia, are bound by the Rome III Regulation. Fourteen Member States have been taken part in this enhanced cooperation since the beginning (Belgium, Bulgaria, Germany, Spain, France, Italy, Latvia, Luxembourg, Hungary, Malta, Austria, Portugal, Romania and Slovenia), and three more have joined in subsequently: Lithuania, under Decision (EU) 2012/714, Greece, under Decision (EU) 2014/39, and now Estonia.

Irrecevabilité

Irrecevabilité

Irrecevabilité

Non renvoyée au Conseil constitutionnel

Non renvoyée au Conseil constitutionnel

Non renvoyée au Conseil constitutionnel

Non renvoyée au Conseil constitutionnel

Stefan Arnold from the University of Graz has edited a volume on fundamental questions of European Private International Law (Grundfragen des Europäischen Kollisionsrechts, Mohr Siebeck 2016, VII + 167 pages, ISBN 978-3-16-153979-4). Published in German the volume contains, among others, chapters on party autonomy, renvoi, ordre public and connecting factors. The editor  has kindly provided us with the following more detailed information:

European Private International Law serves the European idea of an area of freedom, security and justice. For that task, it seems crucial that the legal actors of European Private International Law address its fundamentals. The fundamentals – or fundamental questions – of European Private International Law are manifold. Some of them are discussed in this volume. They concern the political framework within which European Law operates, the challenges of modern concepts of “family” or the relationship of Private International Law and Religious Law. Last not least, European Private International Law needs to ascertain the regulatory function of central Conflict of Laws concepts such as the idea of connecting factors, party autonomy, ordre public and renvoi.

Table of contents

• Christoph Althammer: Das Konzept der Familie im Europäischen Internationalen Familienrecht [The Concept of „Family“ in European International Family Law]
• Stefan Arnold: Gründe und Grenzen der Parteiautonomie im Europäischen Kollisionsrecht [The Foundations and Limits of Party Autonomy in European Private International Law]
• Gerald Mäsch: Der Renvoi im Europäischen Kollisionsrecht [Renvoi in European Private International Law]
• Mathias Rohe: Europäisches Kollisionsrecht und religiöses Recht [European Private International Law and Religious Law]
• Michael Stürner: Der ordre public im Europäischen Kollisionsrecht [Ordre Public in European Private International Law]
• Rolf Wagner: Das Europäische Kollisionsrecht im Spiegel der Rechtspolitik [European Private International Law and Legal Policy]
• Marc-Philippe Weller: Anknüpfungsprinzipien im Europäischen Kollisionsrecht – eine neue „kopernikanische Wende“? [Connecting Factors in European Private International Law – a New “Copernican Revolution”?]

Pourvoi c/ Chambre de l'instruction de la cour d'appel de Montpellier, 17 mars 2016

Pourvoi c/ Cour d'appel de Chambéry, Chambre civile 1re section, 15 décembre 2015

Pourvoi c/ Cour d'appel de Grenoble, 1re chambre des appels correctionnels, 23 novembre 2015

Pourvoi c/ Cour d'appel de Paris, pôle 5, chambre 13, 3 mars 2016

I have included Article 15 of the Brussels IIa or IIbis Regulation, 2201/2003, in full below. It allows a court to relinquish a case to another court, if that is in the best interest of the child. I once referred to it in an exam, asking students to discuss Zwiefka MEP’s proposal at the time to introduce an Article 15-type exception in what is now the Brussels I Recast Regulation. Those discussions in the meantime have led in particular to Articles 33-34 of the Recast, on lis alibi pendens with courts in third States and the potential for EU courts to relinquish their jurisdiction.

The question I asked students was how they would rate Article 15 (which incidentally does not require the case to be pending in the alternative court to which the case is being deferred) against classic forum non conveniens provisions. The point being that the former puts courts very much in a straightjacket, which the CJEU was bound to have to untangle. That is exactly what is at stake in C-428/15 Child and Family Agency v JD in which Wathelet AG opined Mid June.

Agne Limante has full listing of the AG’s arguments in CJEL,  I should like to add that the Irish courts were particularly concerned with forum shopping: at 22:

In that regard, it (the referring court, GAvC) considers that the settling in Ireland of United Kingdom nationals who wish to conceal their children from the competent child protection authorities must not be encouraged and, more broadly, that opportunities for forum shopping must not be created or tolerated. However, it asks to what extent such considerations may be taken into account in the implementation of Article 15 of Regulation No 2201/2003.

Interesting case and ditto Opinion.

Geert.

Article 15

Transfer to a court better placed to hear the case

1. By way of exception, the courts of a Member State having jurisdiction as to the substance of the matter may, if they consider that a court of another Member State, with which the child has a particular connection, would be better placed to hear the case, or a specific part thereof, and where this is in the best interests of the child:

(a) stay the case or the part thereof in question and invite the parties to introduce a request before the court of that other Member State in accordance with paragraph 4; or

(b) request a court of another Member State to assume jurisdiction in accordance with paragraph 5.

2. Paragraph 1 shall apply:

(a) upon application from a party; or

(b) of the court’s own motion; or

(c) upon application from a court of another Member State with which the child has a particular connection, in accordance with paragraph 3.

A transfer made of the court’s own motion or by application of a court of another Member State must be accepted by at least one of the parties.

3. The child shall be considered to have a particular connection to a Member State as mentioned in paragraph 1, if that Member State:

(a) has become the habitual residence of the child after the court referred to in paragraph 1 was seised; or

(b) is the former habitual residence of the child; or

(c) is the place of the child’s nationality; or

(d) is the habitual residence of a holder of parental responsibility; or

(e) is the place where property of the child is located and the case concerns measures for the protection of the child relating to the administration, conservation or disposal of this property.

4. The court of the Member State having jurisdiction as to the substance of the matter shall set a time limit by which the courts of that other Member State shall be seised in accordance with paragraph 1.

If the courts are not seised by that time, the court which has been seised shall continue to exercise jurisdiction in accordance with Articles 8 to 14.

5. The courts of that other Member State may, where due to the specific circumstances of the case, this is in the best interests of the child, accept jurisdiction within six weeks of their seisure in accordance with paragraph 1(a) or 1(b). In this case, the court first seised shall decline jurisdiction. Otherwise, the court first seised shall continue to exercise jurisdiction in accordance with Articles 8 to 14.

6. The courts shall cooperate for the purposes of this Article, either directly or through the central authorities designated pursuant to Article 53.

Tribunal de commerce de Grasse, 22 juillet 2016

Pourvoi c/ Cour d'appel de Paris, pôle 2, chambre 11, 15 octobre 2015

Pourvoi c/ Cour d'appel d'Aix en Provence, 18e chambre, 5 février 2016

Pourvoi c/ Cour d'appel de Paris, pôle 7, deuxième chambre de l'instruction, 20 juin 2016

Most of the political attention to the panel’s award on the South East China Sea issue has gone to the implications for Chinese sovereignty in the area. That is in itself neither surprising nor problematic. It is worth highlighting however that 2 out of 6 of the Panel’s conclusions, as listed by Herbert Smith Freehills, relate to environmental protection:

1. failed to protect and preserve the marine environment by tolerating and actively supporting Chinese fishermen in the harvesting of endangered species and the use of harmful fishing methods that damaged the fragile coral reef ecosystem in the South China Sea;
2. inflicted severe harm on the marine environment by constructing artificial islands and engaging in extensive land reclamation at seven reefs in the Spratly Islands;

If one includes a third one, ‘interfered with the traditional fishing activities of Philippine fishermen at Scarborough Shoal;’ as being part of the principle of sustainable development, then half of the Chinese infringements relate to environmental protection in the wide sense. These findings highlight how closely linked environmental protection is to natural resources and to territory generally, and how environmental protection has come of age and is now part of core debates in public international law. Sadly also, of course, how in their search for scarce resources plenty of nations continue to trample freely on values which the 1992 Rio Declaration already found to essentially be part of customary international law.

A Monash student of mine is writing on the Panel report from the environmental angle and I shall share as and when that analysis is available.

Geert.