Agrégateur de flux

A quick note for archival purposes on the French Supreme Court judgment earlier this month in which it upheld the lower courts’ decision (which had been reversed upon appeal) that European Convention rights do not trump the impossibility under English law, which is the law under which the claimant had been adopted, for the adopted to confirm descent from both the adopted parents and the biological father.

It is important to keep in mind the specific circumstances of the case in which the Supreme Court let the stability of family relations prevail over ECHR rights. The adoption went back to 1966 (the UK birth to 1958). The true identity of the father seemingly had always been known to the applicant. The mother (1963) and the suspected biological father (2011)  have passed away, the real issue would seem to be inheritance related.

Geert.

Interesting French supreme court judgment upholding finding under applicable English law that descendance following adoption trumps later attempt to establish blood descendance
Preference for stability of family relations found not to infringe adopted's A8 #ECHR rights @ECHR_CEDH https://t.co/Gtht0d8YgH

— Geert Van Calster (@GAVClaw) October 15, 2020

Pourvoi c/ Premier président près la Cour d'appel de Bordeaux, 28 janvier 2020

Pourvoi c/ Cour d'appel de Lyon, 5 mars 2020

Tribunal judiciaire de Toulouse, 30 septembre 2020

The success of the New York Convention has made arbitration a preferred means of dispute resolution for international commercial transactions. Success in arbitration often depends on the extent to which a party may, in advance, ensure that assets or evidence is secured in advance, or that the other party is required to take steps to secure the status quo. This makes the availability of provisional measures granted by either arbitral tribunals or by courts important to the arbitration process. In this chapter, Ron Brand of the University of Pittsburgh School of Law considers the existing legal framework for such provisional measures in aid of arbitration, giving particular attention to the source of the rules that might govern such relief related to international commercial transactions and the arbitration of disputes they may generate. These include the New York Convention, the applicable lex arbitri, institutional arbitration rules, and the arbitration contract. He considers how these sources do or do not provide a comprehensive and coherent framework for effective dispute resolution – including especially the effective satisfaction of any resulting arbitral award – and some of the ways in which the arbitration clause may be drafted to specifically take into account the often unanticipated, but always possible, need for provisional measures.

TThe article is accessible here

Joseph William Singer (Harvard Law School) has published a new casebook on the American Conflict of Laws (Choice of Law – Patterns, Arguments, Practices). As its titles makes clear, its focus is on choice of law, but the book also includes two chapters on Procedure and Constitutional Law which present issues related to jurisdiction and foreign judgments.

The book is different from other American casebooks on conflict of laws in many respects. For foreign scholars, the most important will probably be that it is far more readable and accessible. US casebooks typically offer extracts of cases followed by questions. This might be good to teach American students to think like a lawyer, but for those who will not attend the class, it is not easy to know what American law actually is. Singer summarises the cases instead, and offers comments and his own views on the development of the law.

In particular, the book is a great source on the trends of the emerging Third Restatement, that Singer presents and assesses. The Restatement is still very much a work in progress, but some chapters have now been approved by the council of the American Law Institute, in particular on choice of law and torts, and the drafts are not freely available. The book offers an excellent insight in the most recent version of December 2019, in particular the new choice of law rules on torts.

The book also promotes a different type of learning. More specifically, it promotes experiential learning through persuasion, and includes for that purpose 11 moot courts exercises.

This book provides a new way to learn about the topic of conflicts of law through experiential learning. Most books describe the approaches that have been adopted over time to decide conflicts of laws. This book describes those approaches and includes the emerging Third Restatement. To promote experiential learning, it does more: First, it explains patterns of cases so that students can fit new cases into established frames of reference. Second, it distinguishes between easy cases and hard cases so students can determine when a case cannot be easily resolved. Third, it provides detailed arguments that are typically made on both sides of hard cases that fit the typical patterns. Fourth, it concludes with moot court exercises that students could perform in class to practice advocacy in this field and judging.

With new requirements to provide students with experiential learning opportunities, this text enables any teacher to give students the tools they need to understand the issues in the field, the reasons why cases are hard, the arguments that are available on both sides, and justifications that judges can give for resolving cases one way or the other.

Finally, the book ends with a chapter addressing the issues arising out of the existence of Indian nations and tribal sovereignty in the US, which add 573 governments in the conflicts equation, and are typically neglected in US conflicts books.

Pourvoi c/ Cour d'appel d'Aix-En-Provence, 29 juillet 2020

Pourvoi c/ Cour d'appel d'Amiens, 14 février 2020