Agrégateur de flux

A talaq divorce is rarely knocking at the door of Greek courts. A court in Thessaloniki dismissed an application for the recognition of an Egyptian talaq, invoking the public policy clause, despite the fact that the application was filed by the wife. You can find more information about the case, and check my brief comment here.

What puzzles me though is whether there are more jurisdictions sharing the same view. Personally I don’t feel at ease with this ruling for a number of reasons. But prior to that, a couple of clarifications:

1. This case bears no resemblance to the Sahyouni saga. The spouses have no double nationality: The husband is an Egyptian, the wife a Greek national.
2. There was no back and forth in their lives: they got married in Cairo, and lived there until the talaq was notarized. Following that, the spouse moved to Greece, and filed the application at the place of her new residence.
3. Unlike Egypt, Greece is not a signatory of the 1970 Hague Convention on the Recognition of Divorces and Legal Separations.
4. There is no bilateral agreement between the two countries in the field.

I’m coming now to the reasons of my disagreement with the judgment’s outcome.

1. The result is not in line with the prevalent view in a number of European jurisdictions: From the research I was able to conduct, it is my understanding that Austria, Germany, France, Italy, Spain, the Netherlands, Norway, and Switzerland, do not see any public policy violation, when the wife takes the initiative to apply for recognition of the talaq.
2. The reasoning of the court is a verbatim reiteration of an Athens Court of Appeal judgement from the ‘90s. It reads as follows: Solely the recognition of such an act would cause profound disturbance to the Greek legal order, if its effects are to be extended and applied in Greece on the basis of the Egyptian applicable rules. What is actually missing is the reason why recognition will lead to profound disturbance, and to whom. Surely not to the spouse, otherwise she wouldn’t file an application to recognize the talaq.
3. It should be remembered that the public policy clause is not targeting at the foreign legislation applied in the country of origin or the judgment per se; moreover, it focuses on the repercussions caused by the extension of its effects in the country of destination. Given the consent of the spouse, I do not see who is going to feel disturbed.
4. Recognition would not grant carte blanche for talaq divorces in Greece. As in other jurisdictions, Greece remains devoted to fundamental rights. What makes a difference here is the initiative of the spouse. In other words, the rule remains the same, i.e. no recognition, unless there’s consent by the wife. Consent need not be present at the time the talaq was uttered or notarized; it may be demonstrated at a later stage, either expressly or tacitly. I guess nobody would seriously argue that consent is missing in the case at hand.
5. Talking about consent, one shouldn’t exclude an ex ante tacit agreement of the spouses for financial reasons. It has been already reported that all remaining options for a spouse in countries where Sharia is predominant are much more complicated, time-consuming, cumbersome, and detrimental to the wife. Take khul for example: It is indeed a solution, but at what cost for the spouse…
6. Last but not least, what are the actual consequences of refusal for the spouse? She will remain in limbo for a while, until she manages to get a divorce decree in Greece. But it won’t be an easy task to accomplish, and it will come at a heavy price: New claim, translations in Arabic, service in Egypt (which means all the 1965 Hague Service Convention conditions need to be met; Egypt is very strict on the matter: no alternative methods allowed!); and a very careful preparation of the pleadings, so as to avoid a possible stay of proceedings, if the court requires additional information on Egyptian law (a legal information will most probably double the cost of litigation…).

For all the reasons aforementioned, I consider that the judgment is going to the wrong direction, and a shift in Greek case law is imperative, especially in light of the thousands of refugees from Arab countries who are now living in the country.

As I mentioned in the beginning, any information on the treatment of similar cases in your jurisdictions is most welcome.

Dear readers,

Conflictoflaws.net has been around for 12 years by now. It has developed into one of the most relevant platforms for the exchange of information and the discussion of topics relating to conflict of laws in a broad sense. And while the world has changed a lot during the past 12 years the look of conflictoflaws.net has basically remained the same. Today this is going to change:

We are happy to announce that www.conflictoflaws.net has received a (slightly) new design!

As you will see, we have tried to keep the overall simple appearance of the blog while giving it a slightly more modern touch. As regards the structure, however, there is one major change. As of today, posts will come in two different categories: “views” and “news”. Under “views” posts with independent content (case notes, comments, etc.) will be displayed“. Posts under “news” will convey all sorts of information (relating to, for example, conference announcements, book releases, job vacancies, call for papers, etc.).

We hope that you will like the new design and find the new structure useful. Should you have any comments or experience problems please get in touch. Needless to say that the same holds true, if you wish to share “views” and “news”!

Best wishes and happy reading!

The editors

[2018] EWHC 1985 (TCC) SRCL Limited is a procurement case and therefore generally outside the remit of this blog. However it is a useful reminder of the common law’s approach to citing academic authority:

Fraser J discusses it at 180 ff: ‘The historic common law convention was that academic views could only be cited as authority in courts if the author was dead, and if the work in question had achieved a level of respectability in any event. There was also, perhaps, a third requirement (although it could be seen as a subset of the second) that the author themselves had to have been either a judge or practitioner. Professor Arrowsmith is very much alive, and has a high reputation as an academic in the field of procurement law.’

Reference is made to Lord Neuberger’s 2012 lecture “Judges and Professors – Ships passing in the night?”, including discussion of what may have been a compelling reason for the rule or convention: at 181: ‘A dead author cannot change their mind. Although Lord Neuberger was not convinced that this was a good reason, it does have the merit of certainty.’

At 182: ‘The conclusion of Lord Neuberger is clear however – the convention has now been eroded, and there is a dialogue between judges and academics to the benefit of all. Textbooks of living authors are regularly cited in court – they do not have the same status as judgments under the doctrine of stare decisis, but they are persuasive and the views of an academic such as Professor Arrowsmith do have weight in this arena.’

When I earlier shared the judgment on Linked-in, one of my contacts justifiably mentioned that the love (lost) between academia and the courts in the UK might be mutual: the suggestion was that too much scholarly analysis disregards practice implications too readily.

By way of conclusion, as professor Arrowsmith herself noted, ‘The fact that I am, fortunately, still alive, was just one of the important issues discussed in a recent High Court case on procurement. …For the record, it was decided that my views are highly persuasive – but not as important as they might be if I were dead.’

Geert.

Issue 3 of the Journal of European Private Law (Zeitschrift für Europäisches Privatrecht) has just been released. It contains the following articles:

Robert Magnus: Der grenzüberschreitende Bezug als Anwendungsvoraussetzung im europäischen Zuständigkeits- und Kollisionsrecht

Under Article 81 (1) TFEU, the EU competence for judicial cooperation in civil matters requires ‘cross-border implications’. The questions when and how such implications can be assumed and whether or not reliable principles can be established in this context, are the subject of this article.

Pedro del Olmo: Obligations, Contracts and ‘Performance by Third Persons’: A case of False Friends in the PECL and the DCFR

What the civil law tradition calls “payment by a third party” is based on the simple idea that almost anyone can fulfil the obligation of another and by doing so free the debtor from her duty. The new approaches adopted in the DCFR regarding performance by a third party are unclear and contradictory. This paper demonstrates that many difficulties in this area can be avoided if the distinction between actual performance by a third party and “accord and satisfactions” (datio in solutum) by a third party is maintained.

Susanne Zwirlein: „Mortuus redhibetur“ permansit

“Mortuus redhibetur” is not only a legal rule handed down in the Digest, but also a legal shorthand for the question of how the destruction of a defective object of sale through no fault of the buyer affects the right to termination and the consequences of its exercise. This article examines this question in a comparative historical way reviewing the solutions in Roman, English and German law and the respective channels of reception.

Ádám Fuglinszky: The Conceivable Ways and Means of the Further Harmonization of European Product Liability Law – Mandatory Direct Claim against the Producer for Repair or Replacement?

This article examines the advantages and disadvantages of mandatory direct remedies for repair or replacement against manufacturers. It then compares models regulating such claims employed by Member States and outlines a basis for future European harmonization.

Lorenzo Bertino: Marriage and family: Civil Unions in Italy

The Italian legislature recently introduced a legal framework for the regulation of homosexual partnerships, the content and constitutional significance of which is outlined in this article. It is argued that this “Civil Union” is significantly different from marriage.

Pourvoi c. Chambre de l'instruction de la Cour d'appel d'Aix-En-Provence, 2 juillet 2018

Tribunal des affaires de sécurité sociale du Nord, 24 juillet 2018

Pourvoi c/ Cour d'appel de Pau, chambre correctionnelle, 8 février 2018

Pourvoi c/ Chambre de l'instruction de la Cour d'appel de Toulouse, 12 avril 2018

Pourvoi c/ Cour d'appel de Paris, pôle 2, 5e chambre civile, 9 janvier 2018

The aim of this two-day conference is to bring together representatives of Small States, government officials, academics and NGOs, as well as lawyers who are involved in dispute resolution in or for Small States (defined as those states with a population of 1.5 million or less). Conference participants will explore how (international) environmental dispute resolution can be used to combat climate change or environmental degradation and will discuss how Small States can obtain reparation for suffered environmental and/or climate change damage.

Many Small States are small island states. Climate change presents unique challenges to those states in particular. The difficulties that all countries face in effectively coping with the impact of climate change or environmental issues are exacerbated in Small (island) States because of their geographical area, isolation and exposure.

The conference is free of charge. Registration and programme can be found here.

In England, almost all married Muslim women have had a nikah, a religious celebration. By contrast, more than half of them have not also gone through a separate civil ceremony, as required under UK law. The often unwelcome consequence is that, under UK law, they are not validly married and therefore insufficiently protected under UK law: they cannot claim maintenance, and they cannot get a divorce as long as the marriage is viewed, in the eyes of the law, as a nullity.

The government has tried for some time to remedy this, under suspicious gazes from conservative Muslims on the one hand, secularists on the other. A 2014 report (the ‘Aurat report’), which  demonstrated, by example of 50 cases, the hardships that could follow from the fact that nikahs are not recognized, found attention in the government party. An independent review into the application of sharia law in England and law, instigated by Theresa May (then the Home Secretary) in 2016 and published earlier this year, recommended to ensure that all Islamic marriages would also be registered; it also recommended campaigns for increased awareness.

Such steps do not help where the wedding already took place and has not been registered. A new decision by the High Court brings partial relief. Nasreen Akhter (who is a solicitor and thus certainly not an uneducated woman ignorant of the law) asked to be divorced from her husband of twenty years, Mohammed Shabaz Khan. Khan’s defense was that the marriage, which had been celebrated as a nikah in west London, existed only under Islamic, not under UK law, and therefore divorce under UK law was not possible. Indeed, up until now, the nikah had been considered a non-marriage which the law could ignore, because it did not even purport to comply with the requirements of English law. The High Court was unwilling to presume the lived marriage as valid. However, drawing at length on Human Rights Law, it declared the marriage void under sec 11 of the Matrimonial Causes Act 1973 and granted the wife a decree of nullity. This has important consequences: Unlike a non-marriage, a void marriage allows a petitioner to obtain financial remedies.

The decision represents a huge step towards the protection of women whose Islamic marriages are not registered. It makes it harder for men to escape their obligations under civil law. At the same time, the decision relies on the specific facts; certainty before the law will still be reache donly through registration of the marriage.

The decision is here.

Non lieu à renvoi

Non lieu à renvoi

In [2018] EWHC 662 (Comm) Banca Turco Romana, Popplewell J explained his reasons for discontinuing ex parte freezing orders, with reference among others to C-391/95 Van Uden. At 22-23 he discusses the not entirely clear application of the jurisdictional rules of Brussels I, which indicated that that Regulation was engaged either via Article 2 (now 4: domicile in Romania) or 4 (now 6): residual Member State (here: Romanian) jurisdictional rules, which go on to be sheltered under the Brussels I Regulation.

At 20 he refers to the earlier case of ICICI Bank UK plc v Diminco NV [2014] EWHC 3124 (Comm) in which he summarised the English Courts’ requirements for the issuing of ex parte freezing orders where the defendant is neither resident within the jurisdiction nor someone over whom the court has or would assume in personam jurisdiction for some other reason:

‘the court will only grant a freezing order extending to foreign assets in exceptional circumstances. It is likely to be necessary for the applicant to establish at least three things:

(a)        that there is a real connecting link between the subject matter of the measure sought and the territorial jurisdiction of the English court in the sense referred to in Van Uden;

(b)        that the case is one where it is appropriate within the limits of comity for the English court to act as an international policeman in relation to assets abroad; and that will not be appropriate unless it is practical for an order to be made and unless the order can be enforced in practice if it is disobeyed; the court will not make an order even within the limits of comity if there is no effective sanction which it could apply if the order were disobeyed, as will often be the case if the defendant has no presence within the jurisdiction and is not subject to the in personam of the English court;

(c)        it is just and expedient to grant worldwide relief, taking into account the discretionary factors identified at paragraph 115 of the Motorola case. They are (i) whether the making of the order will interfere with the management of the case in the primary court, e.g. where the order is inconsistent with an order in the primary court or overlaps with it; (ii) whether it is the policy in the primary jurisdiction not itself to make to make worldwide freezing/disclosure orders; (iii) whether there is a danger that the orders made will give rise to disharmony or confusion and/or risk of conflicting, inconsistent or overlapping orders in other jurisdictions, in particular the courts of the state where the person enjoined resides or where the assets affected are located; (iv) whether at the time the order is sought there is likely to be a potential conflict as to jurisdiction rendering it inappropriate and inexpedient to make a worldwide order; and (v) whether in a case where jurisdiction is resisted and disobedience may be expected  the court will be making an order which it cannot enforce.”

In Banca Turco discontinuation was ultimately mostly based not on any slip-up of jurisdictional basis, but rather on the absence of full disclosure by the requesting party: at 45: ‘The importance of the duty of disclosure has often been emphasised.  It is the necessary corollary of the court being prepared to depart from the principle that it will hear both sides before reaching a decision, which is a basic principle of fairness.  Derogation from that basic principle is an exceptional course adopted in cases of extreme urgency or the need for secrecy.  If the court is to adopt that procedure where justice so requires, it must be able to rely on the party who appears alone to present the evidence and argument in a way which is not merely designed to promote its own interests, but in a fair and even-handed manner, drawing attention to evidence and arguments which it can reasonably anticipate the absent party would wish to make.  It is a duty owed to the court which exists in order to ensure the integrity of the court’s process.  The sanction available to the court to preserve that integrity is not only to deprive the applicant of any advantage gained by the order, but also to refuse to renew it.’

Geert.

The Law Department of the University of Verona (Italy), in cooperation with the Ph.D. School of Law and Economics and the European Documentation Centre, welcomes submission to the #TILT Young Academics Colloquium, to be held on 23-24 May 2019. It is the first meeting involving early career scholars on trending international and EU law topics to be organised in the unique location of the city of Verona.

The Colloquium falls within the activities of the research project “Trending International Law Topics – #TILT”, supervised by Maria Caterina Baruffi (Full Professor of International Law, University of Verona), which is aimed at deepening the investigation and fostering scientific discussion on trending topics in international and EU law, including also their impact on domestic legal systems. A series of seminars featuring prominent foreign academics and other events have already been organised so far, focusing for example on the relationships between the EU and national legal orders, migration, the EU Regulations in family law matters, the free movement of persons and the protection of fundamental rights.

In this context, the Colloquium represents a further activity dedicated to open issues in international and EU law, but specifically addressed to Ph.D. students and young researchers of any nationality and affiliation, who will be the leading speakers at this event. First, they are expected to present the results of their research, and then, to engage in the debate with the invited international experts acting as chairpersons and discussants.

The Call for Papers “What’s #Trending in International and EU Law” has been issued to select the papers that will be included in the Colloquium’s program. It is directed at advanced Ph.D. students (or within three years of its completion), post-doc research fellows and academics at early stages of their career, who are encouraged to submit proposals (in English) concerning public international law, private and procedural international law, or EU law, including also comparative perspectives, as well as issues related to law and economics.

Interested applicants are invited to submit:

• a proposed title,
• an abstract in English of max. 8000 characters (including spaces),
• 3 keywords,
• a CV

through the Call for Papers Application Form.

The deadline for submission is 15 October 2018 and applicants will be informed of the outcomes by 15 December 2018.

Detailed information about the Call for Papers are available here.

Any inquiry about the #TILT Young Academics Colloquium or the Call for Papers can be directed at this e-mail: trendingtopics.univr@gmail.com.

Non lieu à renvoi

Dear LSGL members,

We are pleased to announce that there will be a winter academic conference on the topic of Global Social Justice, hosted by the Department of Law, Juridicum, at the Stockholm University, Sweden, on Tuesday, 19 February in conjunction with the Dean’s meeting planned for 18 February, 2019. We ask that you send the attached call for papers to any senior and/or junior researchers at your institutions who may be interested in participating on a panel within the topic. Potential themes include:

• The globalization of discrimination protections (e.g., labour/employment discrimination; gender-based discrimination including issues relating to the #MeToo movement)
• Equality in global trade – the roles of the WTO and other international actors
• Environmental law as a guarantor of global social justice
• Corporate social responsibility – An avenue to greater global justice?
• The potential role of digital technology in promoting global social justice

We anticipate having four panels each with three speakers and a moderator, thus accepting 12 papers. The LSGL will pay for two hotel nights for each one of the 12 speakers.
Paper proposals of 300 to 500 words should be submitted no later than 6 October 2018 together with a brief CV. Decisions will be announced by 1 November 2018 and the papers should be ready for circulation no later than 1 February 2019. Please send any inquiries and paper proposals to presidency@lawschoolsgloballeague.com.

Gustavo Moser has authored a new book on choice of law in cross-border sales. He has kindly provided the following summary:

The choice of a governing contract law is a paramount contractual decision. This is because the governing contract law will dictate a contract’s life from beginning to end, thereby attaching legal and economic consequences to each step taken in the course of a contractual relationship. Yet, this choice is seldom subject to an ex anteevaluation by the parties being rather often defer to an ex postverification. Would this be a contracting parties’ behaviour verified in cross-border contracts? If so, what would be the underlying cause(s) of this pattern of conduct?

Despite its acknowledged theoretical importance, it is often suggested that negotiators might dedicate less attention than they should to the particulars of the choice of law clause. Instead, negotiators tend to opt for law that may be convenient for business, or be the result of previous experiences, including, for example, following in a partner’s footsteps, or a successful deal in the past, without further deliberation. Parties may thus simply attribute a “tag” to this experience and evaluate it according to the outcomes achieved in these previous experiences. However, these evaluations may not always be accurate and can be clouded by emotion. Are there rational and non-rational elements involved in this choice? How can we ascertain these elements?

In light of this apparent discrepancy between theory and practice, we decided to investigate further how traders actually choose the law for their deals. We also wanted to find out the reasons for these decisions and the foundations on which these decisions are based. We therefore mapped out and delved into studies and surveys conducted in the past to appreciate the empirical efforts that had been undertaken so far.

Despite their unquestionable importance, scarce information is available in these studies on how this decision is taken, and the main factors informing choice of governing contract law. The alternatives available to improving and optimising this choice are likewise unexplored.

Additionally, the connection and role of law, economics and psychology in decision-making processes is often underexplored and possibly underestimated. Unfortunately, in a dynamic, globalized and complex world of contracts, interdisciplinary approaches are rarely studied. Therefore, there does not seem to be any answer to these practical questions:

• Are contracting parties maximizers of their welfare?
• Are they, generally speaking, self-interested players who seek to reach efficient results?
• Does it depend on the context and external stimuli?
• Do emotions play any role in the choice?
• Can these emotions cloud or enlighten the judgment of these choices? If so, to what extent?
• How can we avoid, control or minimize the effects of these emotional factors?
• How can parties seek to influence and improve choice of governing contract law?

This is how the Global Empirical Survey on Choice of Law (for the purposes of this summary, the Global Empirical Survey) was conceived in 2014. The survey was essentially designed to investigate parties’ concerns regarding choice of law, reveal how and what factors determine the way contracting parties choose the law to govern their agreements, and to assess whether neutral legal frameworks were welcome in addressing these concerns.

The first chapter of the book sets out evidence on the choice of law and include a focus on how negotiators typically approach the subject and what are the main drives and triggers of this decision. We further investigate whether contracting parties are aware of the vast legal market options available and whether they actually enjoy their benefits. The first part also unveil the results of the Global Empirical Survey, which shown a rather clearer picture of the imperfections produced by cognitive limitations while choosing a governing contract law. In the second and third chapters, we map out some of the market distortions and imperfections to which negotiators are (consciously or not) routinely exposed. We also reveal the common psychological triggers that influence decision-making processes and how to identify and better control them to a party’s best advantage. We further shed light on the idiosyncratic contract design and the mechanisms to manage this properly in an international context, all in an attempt to identify and use the appropriate tools to make better decisions and obtain more efficient outcomes.

Readers will subsequently be invited to consider the major market distortions and failures to which contracting parties are routinely exposed.  We demonstrate that, with the increase of market activities and complexity of deals worldwide, parties need to be equipped with the most efficient tools to maximize gains from cross-border contracts, thereby avoiding risks and costly mistakes. With this purpose in mind, we analyse choice of law studies undertaken and offer alternatives to be used in practice, which seek to overcome recurrent complaints, uncertainties and fears when it comes to choosing governing contract law, including potential interplays and intersections with jurisdictional choices. We also attempt to verify the effectiveness of these solutions in light of the evidence presented.

The final chapter of the book concentrates on alternatives to escape “arm-wrestling”, “home turf”, deadlock situations and other tactical scenarios in cross-border contracts. We present and compare alternatives which can be used in international contract settings and then test the effectiveness of the solutions they can provide, taking into account both the legal and economic aspects and contracting parties’ real-life concerns and preferences collected in the earlier chapters. Readers are invited to find out the answers to the following questions: what really matters to contracting parties when drafting choice-of-law clauses? Are there key provisions, “backbones”, legal standards or frameworks that are indeed indispensable? Do contracting parties consider legal and economic choices at all? With this in mind, we aim to offer to legal practitioners tools that enable them to excel and effectively optimise, at a rather even level between parties, the exchange of goods worldwide.