Agrégateur de flux

For the fourth consecutive year, the Annual Conference of the Society of Legal Scholars (SLS) will feature a section dedicated to Conflict of Laws. This year’s iteration of the conference will take place from 1 to 4 September 2020 at the University of Exeter (more information here). The conveners of the Conflict of Laws section, Andrew Dickinson and Máire Ní Shúilleabháin, have kindly provided the following Call for Papers.

SLS Conflict of Laws Section: Call for Papers and Panels for 2020 SLS Annual Conference at the University of Exeter

This is a call for papers and panels for the Conflict of Laws section of the 2020 SLS Annual Conference to be held at the University of Exeter from Tuesday 1st  September – Friday 4th September. 

This marks the fourth year of the Conflict of Laws section, and we are hoping to build on the successful meetings in past years, most recently at the 2019 Conference in Preston. We would like to thank all those who have supported the section since its inception.

The Conflict of Laws section will meet in the second half of the conference on Thursday 3rd and Friday 4th September.

We intend that the section will comprise four sessions of 90 minutes, with 3 or more papers being presented in each session, followed by discussion. At least three of the sessions will be organised by theme. We hope, if submissions allow, to be able to set aside the fourth session for papers by early career researchers (within 5-years of PhD or equivalent). We also hope to organise a Conflict of Laws social event on the Thursday evening.

We welcome proposals from scholars in the field for papers or panels on any aspect of the Conflict of Laws (private international law). We welcome proposals representing a full range of intellectual perspectives in the subject section, and from those at all stages of their careers.

If you are interested in delivering a paper, we ask you to submit a proposed title and abstract of around 300 words. If you wish to propose a panel, please submit an outline of the theme and rationale for the panel and the names of the proposed speakers (who must have agreed to participate), together with their proposed titles and abstracts.

Please submit your paper abstract or panel details by 11:59pm UK time on Tuesday 24th March 2020.  All abstracts and panel details must be submitted through the Oxford Abstracts conference system which can be accessed using the following link – https://app.oxfordabstracts.com/stages/1763/submitter – and following the instructions (select ‘Track’ for the relevant Subject Section). If you registered for Oxford Abstracts for last year’s conference, please ensure that you use the same e-mail address this year if that address remains current. If you experience any issues in using Oxford Abstracts, please contact slsconference@mosaicevents.co.uk.

As the SLS is keen to ensure that as many speakers with good quality papers as possible are able to present, we discourage speakers from presenting more than one paper at the conference.  With this in mind, when you submit an abstract via Oxford Abstracts, you will be asked to note if you are also responding to calls for papers or panels from other sections. 

The SLS offers a Best Paper Prize which can be awarded to academics at any stage of their career and which is open to those presenting papers individually or within a panel.  The Prize carries a £250 monetary award and the winning paper will, subject to the usual process of review and publisher’s conditions, be published in Legal Studies.  To be eligible:

• speakers must be fully paid-up members of the SLS;
• papers must not exceed 12,000 words including footnotes (as counted in Word);
• papers must be uploaded to the paperbank (via Oxford Abstracts) by 11.59pm UK time on Monday 24th August; and
• papers must not have been published previously or have been accepted or be under consideration for publication.

We have also been asked to remind you that all speakers will need to book and pay to attend the conference and that they will need to register for the conference by Tuesday 16th June in order to secure their place within the programme. Please do let me/us know if this is likely to pose any problems for you. For further information, please see the conference website (https://www.slsconference.com/).

We note also that prospective speakers do not need to be members of the SLS or already signed up as members of a section to propose a paper.

We look forward to seeing you, as a speaker or delegate, at the Conflict of Laws session in Exeter.

With best wishes,

Professor Andrew Dickinson, St Catherine’s College, University of Oxford Dr Máire Ní Shúilleabháin, University College Dublin (Conveners)

As reported earlier in this blog, the Queen Mary University of London will host a series of workshops on Private International Law after Brexit.

The first workshop of the series, scheduled for 28 February 2020, is sold out. The second and third workshop will be held on 1 and 2 April 2020, and will focus on the future development of private international law in the UK in relation to commercial law and family law, respectively.

More on the events can be found here.

Gilbert Chikli, 54 ans, est connu pour ses escroqueries et ses talents d’acteur. Il est poursuivi, au côté de six autres prévenus, pour une escroquerie consistant à se faire passer pour le ministre de la défense pour extorquer des millions. Son procès, débuté le 4 novembre, prendra fin le 12 novembre.

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News broke a few weeks back on the class action suit introduced in the USDC for the District of Columbia, against Apple, Dell, Microsoft and Tesla. Swiss-based Glencore (of Mark Rich fame) and Belgium’s Umicore are mentioned in the suit but not added to the defendants. Historical references are inevitably made to the plundering of Congo first by King Leopold personally and in a later stage by the Kingdom of Belgium.

The suit is a strategic one, attempting to highlight the human rights (including child labour) issues involved in the mining of cobalt, used as a raw material in particular for modern batteries, and to propel the corporate social responsibility (CSR) debate on due diligence and supply-chain liability. It is also however a suit seeking damages for the victims of child labour in very dangerous circumstances.

Of note for the blog is the jurisdictional angle: discussed at 18 ff and featuring arguments against the use of forum non conveniens. Claimants put forward they have no practical ability to litigate in DRC: damages under DRC law (therefore assumed to be the lex causae which a Congolese judge would apply were the case litigated in DRC) sought from end-users of cobalt; DRC courts are corrupt; anyone standing in the way of the mining industry is threatened; the 2000 Victims of Trafficking and Violence Protection Act TVPRA as amended in 2013 allows for extraterritorial jurisdiction; finally and of relevance to a classic locus delicti commissi argument: ‘the policymaking that facilitated the harms Plaintiffs suffered was the product of decisions made in the United States by Defendants’.

Personal jurisdiction is suggested to exist for (at 22) are all U.S. resident companies and they do substantial and continuous business within the District of Columbia – minimum contacts are established, and defendants should reasonably anticipate being hailed into court there.

No doubt there will be intense discussion on the jurisdictional basis, prior to debate on the merits of liability of end-users.

Geert.

Biens mal acquis : Teodorin Obiang, vice-président de Guinée équatoriale, condamné en appel à trois ans d’emprisonnement avec sursis et trente millions d’euros d’amende.

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Maria Caterina Baruffi (University of Verona) and Matteo Ortino (University of Verona) have edited the book «Trending topics in international and EU law: legal and economic perspectives». It collects the proceedings of the conference «#TILT Young Academic Colloquium», held in Verona on 23-24 May 2019 and organized by the Law Department of the University of Verona in collaboration with the Ph.D. School of Legal and Economic Studies and the European Documentation Centre.

The event fell within the activities of the research project «Trending International Law Topics – #TILT» supervised by Maria Caterina Baruffi and funded by the programme «Ricerca di base 2015» promoted by the University of Verona. It was specifically targeted to Ph.D. students and early career scholars, selected through a Call for Papers. The book publishes the results of their research with the aim of fostering the scientific debate on trending topics in international and EU law and their impact on domestic legal systems. 

The volume is divided into four parts, respectively devoted to public international law, including papers on human rights, international criminal law and investment law; private international law; EU law, addressing both general aspects and policies; and law and economics.

With specific regard to private international law (Part II of the volume), contributions deal with family, civil and commercial matters. For the former aspect, the volume collects papers on topics such as the EU Regulations on property relationships of international couples, recognition of adoptions, free movement of same-sex registered partners and cross-border surrogacy; for the latter, the volume includes contributions on topics such as choice-of-court agreements in the EU in the light of Brexit, insolvency, service of process and counter-claims in the Brussels regime.

More information about the book and the complete table of contents are available here.

Qisheng He, Professor of International Law at the Peking University Law School, and Director of the Peking University International Economical Law Institute, has published a survey on the Chinese practice in Private International Law in 2018. The full title of the article is the following: The Chronology of Practice: Chinese Practice in Private International Law in 2018.

The article has been published by the Chinese Journal of International Law, a journal published by Oxford University Press.  This is the 6th survey published by Prof. He on the topic.

Prof. He has prepared an abstract of his article, which goes as follows:

This survey contains materials reflecting the practice of Chinese private international law in 2018. First, the statistics of the foreign-related civil or commercial cases accepted and decided by Chinese courts is extracted from theReport on the Work of the Supreme People’s Court (SPC) in 2018. Second, some relevant SPC judicial interpretations including the SPC Provisions on Several Issues Regarding the Establishment of the International Commercial Court are introduced. The SPC Provisions on Several Issues concerning the Handling of Cases on the Enforcement of Arbitral Awards by the People’s Courts are translated, and the Provisions reflect a pro-arbitration tendency in Chinese courts. Third, regarding jurisdiction, a case involving the binding force of a choice of court clause under the transfer of contract is selected. Fourth, three typical cases, relating to the conflict of laws rules, are examined and deal with the matters such as personal injury on the high seas, visitation rights, as well as uncontested divorces. The case regarding personal injury on the high seas discusses the “extension of territory” theory, but its choice of law approach deviate from Chinese law. Fifth, two cases involving foreign judgments are cited: one analyses the probative force of a Japanese judgment as evidence used by the SPC, and the other recognises the judgment of a French commercial court. Sixth, the creation of a “one-stop” international commercial dispute resolution mechanism is discussed. This new dispute resolution mode efficiently coordinates mediation, arbitration and litigation. One mediation agreement approved by Chinese courts is selected to reflect this development. Finally, the paper also covers six representative decisions regarding the parties’ status, the presumption of the parties’ intention as to choice of law, and the validity of arbitration agreements.

I have earlier reviewed the decision of Chief Master Marsh in [2018] EWHC 550 (Ch) Wheat v Alphabet /Google Inc and Monaco Telecom. In Wheat v Google LLC [2020] EWHC 27 (Ch), this decision was confirmed upon appeal (on the copyright issues see here).

Google is involved in the litigation because claimant alleges that Google’s search engine algorithm has done little to address hotlinking practice, which, it is said, facilitates copyright infringement.

Both cases are a good example of the standards for serving out of jurisdiction, essentially, to what degree courts of the UK should accept jurisdiction against non-UK defendants (here: with claimants resident in the UK). The Brussels I Recast Regulation is not engaged in either cases for neither Monaco nor Alphabet are EU based. Mr Wheat is resident in England and his business is based in England. Any damage as a result of hotlinkers’ infringement of his copyright is very likely to be and to have been suffered in England; there is in fact evidence that damage has been suffered. It is also clear to Keyser J that England is clearly the appropriate forum and a forum non conveniens argument therefore going nowhere. However the case to answer by Google, like Marsh CM concluded, is simply too weak nay non-existant: following extensive review of secondary EU law and CJEU copyright law, Keyser J holds that the acts complained of against Google cannot be unlicensed communications, because they are not communications to a new public (all potential users of the unrestricted Website constituting one public, so far as concerns a case involving communication via hotlinking) and are not communications by a new technical means (the internet constituting a single technical means).

No case to answer by Google. No service out of jurisdiction.

Geert.

On 29 January 2020, the District Court of The Hague dismissed the claim of a Palestinian-Dutch Citizen against the Chief of General Staff and Air Force Chief of the Israeli Army. The popular press has reported that one of the two Israeli generals was Benny Gantz, a recent contender to Benyamin Netanyahou in Israel politics.

The plaintiff was claiming compensation for the consequences of an air strike occurred on 20 July 2014 in the context of the Israeli military operation in the Gaza Strip, Operation Protective Edge. He claimed that the air strike targeted family homes, including one where six of his family members died.

Unsurprisingly, the State of Israel asserted immunity from jurisdiction for the defendants with regards to acts performed in their official capacity. The existence of the functional immunity of foreign officials was not disputed. The only issue was whether an exception existed for international crimes. After noting that the concept of international crime was not well defined, the court explained that it would only assume their existence for the sake of the argument and for assessing whether this would limit the immunity of the defendants.

The Hague Court first noted that both the International Court of Justice and the European Court of Human Rights (ECtHR) had ruled that States could not be deprived from immunity for serious violations of international human rights law. It further noted that none of the parties had been able to produce either an international or a national case ruling otherwise since then.

The court then rejected the argument of the plaintiff according to which an exception could exist for claims directed against individuals, as opposed to States. The reason was that such developments are limited to prosecutions before international tribunals and do not apply to proceedings before national courts. The court held:

In short, individual responsibility and dual attribution only apply to international courts, which take a fundamentally different position than national courts. Unlike international courts, national courts function in the horizontal relationship between States when prosecuting subjects of foreign States, to which the customary international-law principle of equality of States applies. Unlike for international courts, functional immunity from jurisdiction is the starting point for national courts.

Finally, the court explored whether there might be a limitation of functional immunity from jurisdiction in criminal proceedings before national courts under customary international law.

For that purpose, it assessed whether there was a general State practice and general acceptance that such practice was law. It found that this was not the case. Contrary to courts in other European states (and indeed the ECtHR) which relied on international conventions which are not in force and on explanatory reports which had not even made it into actual provisions of such conventions, the court noted the progressive work on the International Law Commission which introduced such limitations, but found that they were not adopted by consensus, and that it could thus not be said that this work had codified, or was representative of, customary international law.

The court then turned to Dutch opinion and cited a number of declarations of the Dutch government stating that it considered the limitation to exist. The court concluded, however:

The court will not delve deeper into the opinion of the Dutch court and the discussion on the Dutch criminal law practice as alleged by [claimant], as these do not reflect the current status of customary international law. As has been stated above, a limitation to functional immunity from jurisdiction is not accepted under customary international law in the prosecution of international crimes by national courts. The court must apply customary international law and is not bound by the opinion of the Dutch government. 

The court then moved to confront this outcome with the guarantees under Art 6 ECHR and the right of access to court. The Strasbourg court has ruled that the right of access to court is not absolute, and can be restricted for a legitimate purpose and with measures proportionate to that purpose.

The ECtHR has held repeatedly that sovereign immunities have a legitimate purpose. With respect to proportionality, the Strasbourg court has refused to check on states following customary international law and ruled that the proportionality test is met where the rule comports with customary international law.

It was then easy for the Dutch court to rule that, after finding that the alleged limitation to the functional immunity of jurisdiction is not accepted by customary international law, the result was necessarily compliant with the right of access to court.

The only assessment a court must carry out in examining the proportionality requirement is whether or not the functional immunity from jurisdiction for [defendant I] and [defendant II] is in agreement with customary international law. The court has established previously that this is the case. The proportionality requirement has therefore been met.

Finally, the plaintiff had argued that it was impossible for him to bring proceedings in Israel, as “Israeli law, as applied by the Israeli courts, raises all sorts of legal and practical obstacles to Palestians from the Gaza Strip”. He claimed, therefore, that he had no alternative forum to bring his claim, and that the existence of a forum necessitatis was mandated by European human rights law.

The Hague court dismissed the argument by distinguishing the judgment of the ECtHR in Naït-Liman and by ruling that the existence of an alternative forum was only relevant in the context of the immunity of international organisations, and not in the context of State immunity. The cases where the ECtHR insisted on the existence of an alternative forum were indeed all concerned with the immunity of international organisations (the UN, in particular, in Stichting).

An English version of the judgment can be found here.

This note addresses the question whether there is a common law basis for the recognition of foreign declarations of parentage. It appears that this issue has not received much attention in common law jurisdictions, but it was the subject of a relatively recent Privy Council decision (C v C [2019] UKPC 40).

The issue arises where a foreign court or judicial authority has previously determined that a person is, or is not, a child’s parent, and the question of parentage then resurfaces in the forum (for example, in the context of parentage proceedings or maintenance proceedings). If there is no basis for recognition of the foreign declaration, the forum court will have to consider the issue de novo (usually by applying the law of the forum: see, eg, Status of Children Act 1969 (NZ)). This would increase the risk of “limping” parent-child relationships (that is, relationships that are recognised in some countries but not in others) – a risk that is especially problematic in the context of children born by way of surrogacy or assisted human reproduction technology.

The following example illustrates the problem. A baby is born in a surrogacy-friendly country to a surrogate mother domiciled and resident in that country, as the result of a surrogacy arrangement entered into with intending parents who are habitually resident in New Zealand. The courts of the foreign country declare that the intending parents are the legal parents of the child. Under New Zealand law, however, the surrogacy arrangement would have no legal effect, and the surrogate mother and her partner would be treated as the child’s legal parents upon the child’s birth. Unless the foreign judgment is capable of recognition in New Zealand, the only way for the intending parents to become the child’s legal parents in New Zealand is to apply for adoption (see, eg, Re Cobain [2015] NZFC 4072, Re Clifford [2016] NZFC 1666, Re Henwood [2015] NZFC 1541, Re Reynard [2014] NZFC 7652, Re Kennedy [2014] NZFLR 367, Re W [2019] NZFC 2482, Re C [2019] NZFC 1629).

So what is the relevance of a foreign declaration on parentage in common law courts? In C v C [2019] UKPC 40, [2019] WLR(D) 622, the Privy Council decided that there was a basis in the common law for recognising such declarations, pursuant to the so-called Travers v Holley principle. This principle, which has traditionally been applied in the context of divorce and adoption, calls for recognition of foreign judgments on the basis of “jurisdictional reciprocity” (at [44]). The Privy Council applied the principle to recognise a declaration of parentage made in Latvia, in relation to a child domiciled and habitually resident in Latvia, for the purposes of maintenance proceedings in the forum court of Jersey. Lord Wilson emphasised that, although foreign judgments may, in some cases, be refused on grounds of public policy, recognition will not be refused lightly: “a court’s recognition of a foreign order under private international law does not depend on any arrogant attempt on that court’s part to mark the foreign court’s homework” (at [58]).

As a matter of policy, my first impression is that the Privy Council’s decision is to be welcomed. Common law jurisdictions have traditionally taken a conservative, relatively “closed” approach to the recognition of foreign laws and judgments on parentage (see Hague Conference on Private International Law A Study of Legal Parentage and the Issues Arising from International Surrogacy Arrangements (Prelim Doc No 3C, 2014)). Such an approach has become increasingly indefensible in a world that is witnessing unprecedented levels of cross-border mobility and migration. The conflict of laws should, as a matter of priority, avoid limping parent-child relationships: for example, a child who was declared by the courts of their place of birth to be the child of the intending parents, but who is nevertheless treated as the surrogate mother’s child under New Zealand law. The ability to recognise foreign judgments on parentage may not amount to much progress, given that it can apply only where the foreign court has, in fact, made a declaration of parentage: it would have no application where the relevant parent-child relationship simply arises by operation of law or through an administrative act (such as entry of the intending parents in the birth register). There is no doubt that an international solution must be found to the problem as a whole. But it is surely better than nothing.

Another question is what to make of the Privy Council’s reliance on the Travers v Holley principle. Based on the decision in Travers v Holley [1953] P 246 (CA), the principle enables recognition of foreign judgments by virtue of reciprocity: the forum court will recognise a foreign judgment if the forum court itself would have had jurisdiction to grant the judgment had the facts been reversed (ie had the forum court been faced with the equivalent situation as the foreign court). In the context of divorce, the principle has since been subsumed within a wider principle of “real and substantial connection” (Indyka v Indyka [1969] 1 AC 33 (HL)). In the context of adoption, the principle has been applied to recognise “the status of adoption duly constituted … in another country in similar circumstances as we claim for ourselves” (Re Valentine’s Settlement [1965] Ch 831 (CA) at 842).

Perhaps it is not a big step from adoption to parentage more generally. The Privy Council recognised that the latter primarily represents “a conclusion of biological fact”, while adoption “stamps a person with a changed legal effect” (at [39]). But the Privy Council did not seem to consider that this distinction should warrant a different approach in principle. In C v C, the issue of parentage involved a relatively straightforward question of paternity. Had the case involved a question of surrogacy or human assisted reproduction, the answer might well have been different. There is an argument that a parent-child relationship created under foreign law can only be recognised in the forum if the foreign law is substantially similar to forum law. Thus, in the context of adoption, it has been asked whether the concept of adoption in the foreign country “substantially conform[s] to the English concept” (Re T & M (Adoption) [2010] EWHC 964, [2011] 1 FLR 1487 at [13]). This requirement might not be made out where, for example, the law of the forum does not recognise parentage by way of surrogacy (as is the case in New Zealand).

The Privy Council cautioned that the Board did not receive full argument on the issue and that the reader “must bear the lack of it in mind” (at [34]). It seems especially important, then, for conflict of laws scholars to give the issue further consideration. This note may serve as a careful first step – I would be interested to hear other views. Perhaps the most encouraging aspect of the Board’s reasoning, in my mind, is its openness to recognition. The Board’s starting point was that the declaration could be recognised. Arguably, this was because counsel seemed to have largely conceded the point. But to the extent that it cuts through an assumption that questions of parentage are generally left to the law of the forum, it nevertheless strikes me as significant – even more so since the UK Supreme Court’s previous refusal to extend the Travers v Holley principle beyond the sphere of family law (Rubin v Eurofinance SA [2012] UKSC 46, [2012] 3 WLR 1019 at [110], [127]).

Vendredi 7 février, un avocat pénaliste et ancien bâtonnier du barreau d’Aix-en-Provence, Jean-Louis Keita, était écroué et mis en examen pour violation du secret professionnel (C. pén., art. 226-13). Une audience référé-liberté devrait avoir lieu aujourd’hui à 17 heures.

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