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Ekaterina Aristova (Bonavero Institute of Human Rights, University of Oxford) is the author of the ‘Tort Litigation against Transnational Corporations: The Challenge of Jurisdiction in English Courts’ (OUP 2024), which has just been published in the Oxford Private International Law series. She has kindly shared the following summary with us:

The book examines the approach of the English courts to the question of jurisdiction in civil liability claims brought against English-based parent companies and their foreign subsidiaries as co-defendants (e.g., Lubbe v Cape, Lungowe v Vedanta, Okpabi v Shell, etc.). While the book is written from the perspective of English law, the book also draws on examples of similar cases in Australia, Canada, EU Member States, and the US to broaden the discussion.

The assertion of jurisdiction in parent company liability claims based on a nexus with the forum state presents a challenge to the courts. The territorial focus of the adjudicative jurisdiction is often contrary to the transnational nature of cross-border business activities. Transnational corporations (TNCs) have the flexibility to spread operations over multiple jurisdictions and create a legal separation between the subsidiary’s activities and the home state of the parent company. Courts rely on various private international law rules and doctrines to resolve the question of jurisdiction in parent company liability claims, including forum non conveniens doctrine in common law legal systems, the mandatory rule of domicile under EU law, and the presumption against extraterritoriality in US jurisprudence. The broad disparities in the issues of civil jurisdiction among domestic legal regimes and the considerable controversy surrounding the exercise of extraterritorial regulation over corporate operations often lead to the creation of a ‘jurisdictional veil’ for the parent company and a significant degree of autonomy, largely free from the control of any national jurisdiction.

To address this puzzle, this book seeks to answer three questions: 1) To what extent can English courts, under existing rules, exercise jurisdiction over English parent companies and their foreign subsidiaries as co-defendants? 2) Is England a suitable forum for deciding parent company liability claims? 3) Should the jurisdictional competence of the English courts be broadened through a new connecting factor derived from the ‘economic enterprise’ theory?

The book aims to offer a new angle to the discourse by placing the discussion of parent company liability claims in the context of the topical debate about the changing role of private international law in a globalised world. The transnational adjudication of disputes, cross-border activities of non-state actors and expansion of private law-making challenge several conventional assumptions of the discipline of private international law, including its focus on territoriality and geographical connecting factors and its capacity to interact with public mechanisms. Home state courts have become the fora for struggles between TNCs and vulnerable communities from the host states, raising complex questions about (il)legitimate forum shopping, the appropriate forum, and the limits of judicial discretion. Parent company liability claims impact how we think about private international law and its function, and the reader is invited to explore these challenging dynamics.

The Bonavero Institute of Human Rights in Oxford will celebrate the publication of the book by hosting a (hybrid) book launch and wine reception on 5 June 2024.

The second issue of the Journal du droit international for 2024 has been released. It contains two articles and several case notes relating to private international law issues. It is also worth mentionning the new edition of the column dedicated to judicial cooperation in civil, criminal and arbitral matters authored by Kamalia Mehtiyeva (University Paris-Est […]

Registration for the 2025 programme of The Hague Academy of International Law’s renowned Winter Courses on International Law (6-24 January 2025) is now open. In contrast to the summer courses, this program combines aspects of both Public and Private International Law and therefore provides for a particularly valuable academic experience.

Following the Inauguaral Lecture by Bhupinder Singh Chimni (O.P. Jindal Global University), this year’s General Course in Private International Law will focus on “International Law in the Times of Globalization: Contexts, Networks, Practices” and will be delivered by Mónica Pinto (University of Buenos Aires). Furthermore, Special Courses will be offered in English by Mohamed S. Abdel Wahab (Cairo University), Payam Akhavan (University of Toronto), Enrico Milano (University of Verona) and Catherine Rogers (Bocconi University), while Niki Aloupi and Sébastien Touzé (Paris-Panthéon-Assas) will deliver their presentations in French. As always, all lectures will be simultaneously interpreted into English or French and vice versa. If you are interested in alternative dispute resolution, the lecture on “The Concept of Arbitrator Impartiality” seems particularly interesting.

Advanced Students, especially those who are ambitious to sit for the prestigious Diploma Exam, are highly encouraged to apply for the Academy’s Directed Studies as well. The French edition of these interactive afternoon seminars will be directed by Emanuel Castellarin (University of Strasbourg), while English-speaking candidates are taught by María Carmelina Londoño Lázaro (University of La Sabana).

Registration is open from  1 May 2024 to 1 October 2024 via the institution’s own Online Registration Form . Students who whish to apply for the Academy’s scholarship opportunities need to submit their application by 31 July 2024. For further information on the HAIL 2024 Winter courses and the Academy in general, please consult the HAIL Homepage or refer to the attached PDF Programme.

 

The Rhenish Friedrich Wilhelm University of Bonn is an international research university with a wide education and research profile. With a 200-year history, approximately 33,000 students, more than 6,000 staff, and an excellent reputation at home and abroad, the University of Bonn is one of the most important universities in Germany and is recognized as a university of excellence.

The Institute for German and International Civil Procedure is looking for a highly skilled and motivated PhD candidate and fellow (Wissenschaftliche/r Mitarbeiter/in) to work in the fields of International Civil Procedural Law and/or International Commercial Arbitration on a part-time basis (50%) to start as soon as possible.

 

(c) Volker Lannert / Universität Bonn

 

Responsibilities:

• Supporting research and teaching on Private International Law, International Civil Procedure and/or International Commercial Arbitraiton as well as German civil law (required by the Faculty, therefore an excellent command of German and profound knowledge of German civil law equivalent to the “First State Examination” is mandatory)
• Teaching obligation of two hours per week during term time (Semester)

Your Profile:

• You hold the First or Second German State Examination in law with distinction (or its international equivalent)
• If possible, you already had contact with International Civil Procedure Law and/or Commercial Arbitration Law
• You are interested in the international dimension of private law, in particular International Civil Procedural Law, and/or International Commercial Arbitration
• Excellent command of the English language (next to German)
• You are commited, flexible, team-oriented and interested in further professional development opportunities

We offer:

• Varied and challenging assignments with one of the largest employers in the region
• Opportunity to conduct your PhD or research project (according to the Faculty’s regulations) under the supervision of the Director of the Institute Prof Dr Matthias Weller, Mag.rer.publ., MAE
• Occupational pension scheme (VBL)
• Numerous offers of the University Sports Programme (Hochschulsport)
• Easy access to the public transport system and direct road link to the Autobahn due to the central location in Bonn as well as the possibility to use inexpensive parking facilities
• Flexible working hours; remote working options are available
• Renumeration according to German public service salary scale E-13 TV-L (50%); initial contract period is one year at least and up to three years, with an option to be extended.

 

The University of Bonn is committed to diversity and equal opportunity. It is certified as a family-friendly university. Its goal is to increase the proportion of women in areas where they are underrepresented and to particularly promote their careers. It therefore strongly encourages applications from relevantly qualified women. Applications are handled in accordance with the State Equal Opportunity Act. Applications from suitable persons with proven severe disabilities and persons treated as such are particularly welcome

If you are interested in this position, please send your application (cover letter in German; CV; and relevant documents and certificates, notably university transcripts and a copy of the German State Examination Law Degree) to Prof Dr Matthias Weller (weller@jura.uni-bonn.de).

For additional information, please refer to the attached pdf document (in German) or visit the Institute’s homepage.

• PILIG newsletter editors recruiting

American Society of International Law Private International Law Interest Group publishes a newsletter and commentaries covering private international law development in Africa, Asia, Europe, North America, Oceania, and South America.

The editor team is working on the 2024 issue and invites scholars, practitioners, and students to contact us to become a PILIG newsletter editor.

ASIL Private International Law Interest Group Co-Chairs

Jeanne Huang <jeanne.huang@sydney.edu.au>

George Tian <YiJun.Tian@uts.edu.au>

The registrations for the Hague Academy Winter Course of 2025 are open. The course will be opened by Bhupinder Singh Chimni (O.P. Jindal Global University) with a lecture on International Law and Global Justice. The general course, titled International Law in the Time of Globalization. Contexts, Networks, Practices will be given by Mónica Pinto (University […]

With the publication of the Elgar Companion to UNIDROIT, edited by Ben Köhler, Rishi Gulati, and Thomas John, the trilogy of books on the three key international institutions mandated to work on private international law and uniform private law is now complete. The volumes on the HCCH and UNCITRAL have been published in 2020 and 2023 respectively.

The editors have kindly shared the following description with us:

The comprehensive Companion provides a unique overview of UNIDROIT, the primary independent organisation coordinating the unification of private law across its 65 member states. As the third in the suite of titles covering the ‘three sisters’ of uniform private law and private international law, it considers UNIDROIT’s role in the creation of existing uniform law, as well as posing questions about its future in the sector.

The Companion offers a broad range of diverse perspectives on UNIDROIT, providing a rich reference resource that considers the history, present and future of the organisation. The team of authors explore the evolving scope and role of UNIDROIT, with a particular focus on its Principles of International Commercial Contracts, as well as its contributions to secured transaction processes, capital markets and cultural properties. Through its assessment of case studies, the Companion delineates the current priorities of UNIDROIT, as well as examining the future of the organisation, and outlining how the organisation can address challenges such as sustainable development and disruptive technologies, and further advance its own impact in underrepresented regions.

Covering a broad range of perspectives from scholars and practitioners alike, this Companion will be a crucial reference point for academics and students in the fields of private international law, and international commercial law, especially those interested in how international organisations contend with critical legal issues.

It was widely reported (including on this blog) that the UK Government signed the 2019 Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters on 12 January 2024. The Government is now preparing to ratify the convention. On 15 and 16 January, it made ministerial statements to the House […]

By Dr Benjamin Hayward

 

Way out west, where the rain don’t fall

There’s a treaty for the sale of goods that’s good news for all

But you might not know it’s here

Unless you’re livin’ and a workin’ on the land …

 

In 2009, Associate Professor Lisa Spagnolo observed – based upon her census of Australia’s CISG case law at that time – that the Convention was effectively ‘in the Australian legal outback’.  For those unfamiliar with Australia’s geography, most of its population is concentrated on the continent’s eastern coast.  Australia’s outback extends, amongst other places, across much of Western Australia.  With that geographic imagery in mind, one might not be surprised to hear that a recent decision of the County Court of Victoria – in Australia’s east – overlooked the Vienna Sales Convention’s application.

The circumstances in which this omission occurred are interesting, and provide a useful opportunity for Australian practitioners to learn more about the CISG’s application in Australia.

The case at issue is last year’s C P Aquaculture (India) Pvt Ltd v Aqua Star Pty Ltd [2023] VCC 2134.  That case involved a sale of goods dispute (concerning prawn and shrimp) between Australian and Indian parties.  Whilst the CISG has been part of Australian law since 1989, it is a well-known fact that India is not a CISG Contracting State.  It is perhaps this well-known fact – taken at face value – that led the County Court of Victoria to overlook the CISG’s application.

The C P Aquaculture judgment indicates that ‘[t]he parties are agreed that the proper law of the contracts between CP (India) and Aqua Star for the sale of shrimp or prawns is Victorian law’.  As recorded in the judgment, this followed from the plaintiff’s view that ‘India has not adopted the convention on contracts for the international sale of goods’, and from the defendant’s view that there was a ‘failure on the part of either part[y] to allege and prove the terms of any other law as a proper law’.

On either view, however, there is actually a very good basis for applying the CISG, rather than non-harmonised Victorian law.  This case therefore represents an excellent opportunity for Australian lawyers to better understand how and why the CISG applies in Australia.

Taking the plaintiff’s position first, the fact that India has not adopted the CISG is actually not fatal to the Convention’s application.  In fact, the Convention specifically provides for its application in those exact circumstances.  This follows from Art. 1(1) CISG, the treaty’s key application provision:

This Convention applies to contracts of sale of goods between parties whose places of business are in different States:

(a) when the States are Contracting States; or

(b) when the rules of private international law lead to the application of the law of a Contracting State.

 Where – as in C P Aquaculture – it is not the case that both parties are from Contracting States, the CISG cannot apply by virtue of Art. 1(1)(a) CISG.  But it can still apply pursuant to Art. 1(1)(b) CISG.  The key here is whether ‘the rules of private international law’ call for the application of a Contracting State’s law.

In an informal discussion I once had with a leading Australian barrister, I was asked ‘what does “the rules of private international law” here actually mean?’  It may be that uncertainty over the meaning of this phrase contributes to the CISG’s application being overlooked in cases like C P Aquaculture.  In short, private international law rules include choice of law rules (where a sales contract is governed by a CISG State’s law because of a choice of law clause) and conflict of laws rules (where, absent party choice of law, the forum’s rules indicate that a CISG State’s law is to apply).  In a way, Art. 1(1)(b) CISG might have been more easily understood by non-specialists if it read ‘when a Contracting State’s law is the governing law’.  Although it doesn’t read this way, that is essentially the provision’s effect, and understanding Art. 1(1)(b) CISG accordingly may better help Australian practitioners identify cases requiring the treaty’s application.

Taking the defendant’s position second, where the law of an Australian jurisdiction governs, it is actually not necessary to ‘allege and prove’ the CISG’s terms because the CISG – despite its abstract existence as a treaty – is not foreign law.  Roder Zelt-Und Hallenkonstruktionen GmbH v Rosedown Park Pty Ltd – Australia’s first ever case applying the CISG – confirmed this by explaining that the CISG is ‘part of’ Australian law and is thus ‘not to be treated as a foreign law which requires proof as a fact’.

Indeed, the Goods Act 1958 (Vic) – a statute that the defendant itself sought to rely upon in C P Aquaculture – is the very vehicle giving effect to the CISG in Victoria, via its pt IV.

All this being said, C P Aquaculture provides Australian practitioners (and lawyers representing Australian traders’ counterparts) with some useful lessons in understanding how and why the CISG applies.  If the CISG really is still in the Australian legal outback, then perhaps what Australian practitioners need is a good understanding of the lay of the land.  And to that end, private international law can be their map.

 

Dr Benjamin Hayward

Associate Professor, Department of Business Law and Taxation, Monash Business School

X (Twitter): @LawGuyPI

International Trade and International Commercial Law research group: @MonashITICL

I. Introduction

Recent developments in the field of family law in the UAE, in particular the adoption of the so-called “Civil Marriage Laws”, have aroused interest, admiration, curiosity, and even doubt and critics among scholars and practitioners of family law, comparative law and private international law around the world.[1] First introduced in the Emirate of Abu Dhabi,[2] and later implemented at the federal level,[3] these “non-religious” family laws, at least as originally enacted in Abu Dhabi, primarily intend to apply to foreign non-Muslims.[4] The main stated objective of these laws is to provide foreign expatriates with a modern and flexible family law based on “principles that are in line with the best international practices” and “close to them in terms of culture, customs and language”.[5] One of the peculiar feature of these laws is that their departure from the traditional family law regulations and practices in the region, particularly in terms of gender equality in pertinent matters such as testimony, succession, no-fault divorce and joint custody.[6]

Aside from the (critical) judgment that can be made about these laws, their application raises several questions. These include, inter alia, the question as to whether these laws would apply to “foreign Muslims”, and if yes, under which conditions. The decision of the Abu Dhabi Supreme Court (hereafter “ADSC”) reported here (Ruling No. 245/2024 of 29 April 2024) shed some light on this ambiguity.

 

II. The Facts:

 The case concerns a unilateral divorce action initiated by the husband (a French-Lebanese dual national, hereafter “X”) against his wife (a Mexican-Egyptian dual national, hereafter “Y”). Both are Muslim.

According to the facts reported in the decision, X and Y got married in the Emirate of Abu Dhabi on 11 September 2023, apparently in accordance with the 2021 Abu Dhabi Law Civil Marriage Law[7] although some aspects of the Islamic tradition regarding marriage appear to have been observed.[8] On 6 November 2023, X filed an action for no-fault divorce with the Abu Dhabi Civil Family Court (hereafter ADCFC) pursuant to the  2021 Abu Dhabi Law Civil Marriage Law using the prescribed form.[9] Y contested the divorce petition by challenging the jurisdiction of the court. However, the ADCFC admitted the action and declared the dissolution of the marriage. The decision was confirmed on appeal.

Y then appealed to the ADSC primarily arguing that the Court of Appeal had erred in applying the 2021 Abu Dhabi Law Civil Marriage Law to declare the dissolution of the marriage because both parties were Muslim. Y’s main arguments as summarized by the ADSC are as follows:

1. The Abu Dhabi courts lacked international jurisdiction because she was foreigner and did not have a place of residence in Abu Dhabi and that her domicile was in Egypt,
2. The Court of Appeal rejected her argument on the ground that X had a known domicile in Abu Dhabi,
3. Both parties were foreign Muslims and not concerned with the application of the 2021 Abu Dhabi Law Civil Marriage Law knowing that the marriage fulfilled all the necessary requirement for Islamic marriage and was concluded with the presence and the consent of Y’s matrimonial guardian (her brother in casu).

 

III. The Ruling

The ADSC accepted the appeal and ruled that the ADCFC was not competent to hear the dispute, stating as follows:

“Pursuant to Article 87 of the [2022 Federal Act on Civil Procedure, hereafter “FACP”], challenges to the court’s judicial jurisdiction or subject matter jurisdiction may be raised by the courts sua sponte and may be invoked at any stage of the proceedings. On appeal, Y argued that the court lacked subject matter jurisdiction to hear the case because she was Muslim […] and a dual national of Mexico and Egypt, while X was also a Muslim […] and holder of French and Lebanese nationalities.

[However,] the Court of Appeal rejected Y’s arguments and confirmed its jurisdiction based on Articles 3 and 4 of [the Procedural Regulation]; [although] the opening of Article 3 relied on [by the court] states that “the court is competent to hear civil family matters for non-Muslim foreigners regarding civil marriage, divorce and their effects”. In addition, Article 1(1) of Federal Legislative Decree No. 41/2022 states that “The provisions of the present Legislative Decree shall apply to non-Muslim citizens of the UAE and to foreign non-Muslims residing in the UAE, unless they invoke the application of their own law in matters of marriage, divorce, succession, wills and establishment of filiation.”

[Given that] it was judicially established by the parties’ acknowledgement that they were Muslim, the Court of Appeal violated the Law No. 14/2021, as amended by Law No. 15/2021, and its Procedural Regulation [No. 8/2022], as well as Federal Legislative Decree No. 41/2022 by upholding the appealed decision without ascertaining the religion of the parties and ruling as it did, [therefore its decision] must be reversed”.

 

IV. Comments

The main legal question referred to the ADSC concerned the applicability of the 2021 Abu Dhabi Civil Marriage Law and its Procedural Regulation to foreign Muslims. The ADSC answered the question in the negative, stating that the ADCFC was not competent to declare the dissolution a marriage between foreign Muslims. Although the case raises some interesting issues regarding the international jurisdiction of the ADCFC, for the sake of brevity, only the question of the applicability of the 2021 Abu Dhabi Civil Marriage Law will be addressed here.

1. Unlike the 2022 Federal Civil Personal Status, which explicitly states that its provisions “apply to non-Muslim UAE citizens, and to non-Muslim foreigners residing in the UAE” (article 1, emphasis added), the law in Abu Dhabi is rather ambiguous on this issue.

i. It should be indicated in this respect that, the 2021 Abu Dhabi Civil Marriage Law, which was originally enacted as “The Personal Status for Non-Muslim Foreigners in the Emirate of Abu Dhabi” (Law No. 14/2021 of 7 November 2021, emphasis added) clearly limited its scope of application to foreign non-Muslims. This is also evident from the definition of the term “foreigner” contained in the former article 1 of the Law, according to which, the term (foreigner) was defined as “[a]ny male or female non-Muslim foreigner, having a domicile, residence or place of work in the Emirate.” Former article 3 of the Law also defined the scope of application of the Law and limited only to “foreigners” in the meaning of article 1 (i.e. non-Muslim foreigners). Therefore, it was clear that the Law, in its original form, did not apply to “foreign Muslims” in general.[10]

ii. However, only one month after its enactment (and even before its entry into force), the Law was amended and renamed “The Law on Civil Marriage and its Effects in the Emirate of Abu Dhabi” by the Law No. 15/2021 of 8 December 2021. The amendments concerned, inter alia the scope of application rationae personae of the Law. Indeed, the Law No. 15/2021 deleted the all references to “foreigners” in the Law No. 14/2021 and replaced the term with a more neutral one: “persons covered by the provisions of this Law [al-mukhatabun bi hadha al-qanun]”. This notion is broadly defined to include both “foreigners” (without any particular reference to their religious affiliation) and “non-Muslim citizens of the UAE” (New Article 1).

Article 5 of the Procedural Regulation provides further details. It defines the terms “persons covered by the provisions of this Law” as follows:

1. Non-Muslim [UAE] citizens.
2. A foreigner who holds the nationality of a country that does not primarily apply the rules of Islamic Sharia in matters of personal status as determined by the Instruction Guide issued by the Chairman of the [Judicial] Department […] (emphasis added).

The wording of article 5(2) is somewhat confusing, as it can be interpreted in two manners:

(i) if read a contrario, the provision would mean that foreigners, irrespective to their religion (including non-Muslims), would not be subject to the 2021 Abu Dhabi Civil Marriage Law and its Procedural Regulation if they hold the nationality of a country that does “primarily apply the rules of Islamic Sharia in matters of personal status”. As a result, family relationships of Christian Algerian or Moroccan, for example, would not be governed by the 2021 Abu Dhabi Civil Marriage Law and its Procedural Regulation. However, this interpretation seems to be in opposition with the very purpose of adopting the Law, which, in its own terms, applies to non-Muslim UAE citizens.

(ii) Alternatively, the word “foreigner” here could be understood to mean “Muslim foreigners”, but only those who hold the “the nationality of a country that does not primarily apply the rules of Islamic Sharia in matters of personal status”. As a result, the family relationships of Muslim Canadian, French, German or Turkish (whether Tunisian would be included here is unclear) would be governed by the Law.

The latter interpretation seems to be prevalent.[11] In addition, the Abu Dhabi Judicial Department (ADJD)’s official website (under section “Marriage”) presents even a broader scope since it explains that “civil marriage” is open to “anyone, regardless of their religion” including “Muslims” “as long as they are not UAE citizens”.

iii. The situation becomes more complicated when the parties have multiple nationalities especially when, as in the reported decision, one is from of a predominantly Muslim country and the other from a non-Muslim country. Here, article 5 of the Procedural Regulation provides useful clarifications. According to paragraph 2 in fine, the nationality to be taken into account in such situation is the one used by the parties according to their [status] of residence in the UAE. If interpreted literally, family law relationships of foreign Muslims who, in addition to their nationality of a non-Muslim country, also hold a nationality of a country whose family law is primarily based on Islamic Sharia (as in the reported decision) would be governed by the 2021 Abu Dhabi Civil Marriage Law and its Procedural Regulation if, according to their status of residence, they use the nationality of their non-Muslim country nationality.

iv. In the case commented here, the parties have dual nationality (French/Lebanese, Mexican/Egyptian). Although the parties are identified as “Muslim”, they appear to have used the nationality of their non-Muslim countries.[12] Accordingly, contrary to the ADSC’s decision, it can be said that the 2021 Abu Dhabi Civil Marriage Law and its Procedural Regulation were applicable in this case.

 

2. In addition to the religion of the parties, the 2021 Abu Dhabi Civil Marriage Law and its Procedural Regulation determine other situations in which the Law applies.

i. These include, with respect to the effect of the marriage and its dissolution, the case where “the marriage is concluded is accordance with” the Law and its provisions (Article 3 of the 2021 Abu Dhabi Civil Marriage Law;[13] Article 5(4) of the Procedural Regulation).[14] The application of this rule does not seem to be dependent on the religion of the parties concerned. Consequently, since the marriage in casu was concluded pursuant to the provisions of the 2021 Abu Dhabi Civil Marriage Law,[15] its dissolution should logically be governed by the provisions of the same Law.

ii. However, it must be acknowledged that such a conclusion is not entirely self-evident. The confusion stems from the ADJD’s official website (under section “Divorce”) which states as a matter of principle that, normally, “anyone who obtained a Civil Marriage through the ADCFC” is entitled to apply for divorce in application of the 2021 Abu Dhabi Civil Marriage Law. However, the same website indicates that “[f]or applicants holding citizenship of a country member of the Arab League countries [sic], an official document proving the religion of the party may be required” when they apply for divorce” (emphasis added).[16] Although the ADSC made no reference to the Arab citizenship of the parties in its decision, it appears that it adheres to the idea of dissociation between the conclusion and the dissolution of marriage in dispute involving Muslims. In any case, one can regret that the ASDC missed the opportunity to examine the rule on dual nationality under article 5(2).

 

Concluding Remarks   

1. To deny the jurisdiction of the ADCFC, the ASDC relied on article 3 of the Procedural Regulation, which the Court quoted as follows: “The [ADCFC] is competent to hear civil family matters for foreign non-Muslims in relation to civil marriage, divorce and its effects (emphasis added).” The problem, however, is that the ADSC conveniently omitted key words that significantly altered the meaning of the provision.

The provision, properly quoted, reads as follows: “The [ADCFC] is competent to hear civil family matters for foreigners or non-Muslim citizens in relation to civil marriage, divorce and its effects (emphasis added).” In other words, article 3 does not limit the scope of application of the Law and its Regulation exclusively to “foreign non-Muslims” as outlined above.

2. Moreover, it is quite surprising that the ADSC also referred to Article 1 of the 2022 Federal Civil Personal Status in support of its conclusions, i.e. that the taking of jurisdiction by the ADFCF “violated the law”. This is because it is accepted that the 2022 Federal Civil Personal Status does not apply to Abu Dhabi.[17] In addition, some important differences exist between the two laws such as age of marriage which fixed at 18 in the 2021 Abu Dhabi Civil Marriage Law (article 4(1)), but raised to 21 in the 2022 Federal Civil Personal Status (article 5(1)).[18] The combined (mis)application of 2021 Abu Dhabi Civil Marriage Law and the 2022 Federal Civil Personal Status appears opportunistic and reveals the ADSC’s intention to exclude contra legem foreign Muslims (or at least those who are binational of both a Muslim and Non-Muslim countries) from the scope of application of 2021 Abu Dhabi Civil Marriage Law and its Procedural Regulation.

 

[1] see on this blog, Lena-Maria Möller, “Abu Dhabi Introduces Personal Status for non-Muslim Foreigners, Shakes up Domestic and International Family Law”. See Also, idem, “One Year of Civil Family Law in the United Arab Emirates: A Preliminary Assessment”, 37 Arab Law Quarterly (2023) 1 ff. For a particularly critical view, see Sami Bostanji, “Le droit de statut personnel au service de l’économie de marché! Reflexoins autour de la Loi n°14 en date de 7 novembre 2021 relative au statut personnel des étrangers non-musulmans dans l’Emirat d’Abou Dhabi” in Mélanges offerts en l’honneur du Professeur Mohamed Kamel Charfeddine (CPU, 2023) 905 ff.

[2] Law No. 14/2021 of 7 November 2021 on the “Personal Status for Non-Muslims” as modified by the Law No. 15/2021 of 8 December 2021 which changed the Law’s title to “Law on Civil Marriage and its Effects” (hereafter “2021 Abu Dhabi Civil Marriage Law”) and its Procedural Regulation issued by the Resolution of the Chairman of the Judicial Department No. 8/2022 of 1 February 2022, hereafter the “2022 Procedural Regulation”

[3] Federal Legislative Decree No. 41/2022 of 3 October 2022 on “Civil Personal Status” (hereafter “2022 Federal Civil Personal Status”) and its Implementing Regulation issued by the Order of the Council of Ministers No. 1222 of 27 November 2023.

[4] See below IV(1)(i). On the difference between the 2021 Abu Dhabi Law Civil Marriage Law the 2022 Federal Civil Personal Status on this particular point, see below IV(1).

[5] Article 2 of the 2021 Abu Dhabi Law Civil Marriage Law.

[6] Article 16 of the 2021 Abu Dhabi Law Civil Marriage Law; article 4 of the 2022 Federal Civil Personal Status.

[7] The text of the decision is not clear on this point. Some comments online explain that the marriage was concluded pursuant to 2021 Abu Dhabi Civil Marriage Law.

[8] The text of the decision particularly mentions the presence and consent of Y’s matrimonial guardian (wali), which is a necessary requirement for the validity of marriage between Muslims, but not a requirement under the 2021 Abu Dhabi Civil Marriage Law.

[9] The ADCFC, which was established specifically to deal with family law matters falling under the purview of the 2021 Abu Dhabi Civil Marriage Law, holds subject-matter jurisdiction in this regard.

[10] cf. Möller, “Abu Dhabi Introduces Personal Status for non-Muslim Foreigners” op. cit.

[11] For an affirmative view, see Möller, “One Year of Civil Family Law in the United Arab Emirates”, op. cit., 7.

[12] Some comments online explain that the marriage was concluded using foreign passports with no-Arabic names and no indication of the parties’ religion.

[13] On the problems of interpretation of this provision, see Möller, “One Year of Civil Family Law in the United Arab Emirates”, op. cit., 7.

[14] The Procedural Regulation further expands the scope of application of the Civil Marriage Law to cover cases where “the marriage was concluded abroad in a country whose family law is not primarily based on Islamic Sharia as determined by Abu Dhabi authorities” (Article 5(3)) and in any other case determined by the Chairman of the Judicial Department and about which an order is issued (Article 5(5)).

[15] See supra n (7).

[16] However, this rule appears to be devoid of any legal basis.

[17] Möller, “One Year of Civil Family Law in the United Arab Emirates”, op. cit., 2.

[18] For a comparision, see Möller, “One Year of Civil Family Law in the United Arab Emirates”, op. cit., 13-15.

The following case note has been kindly provided by Dr. Samuel Vuattoux-Bock, LL.M. (Kiel), University of Freiburg (Germany).

 

On May 7, 2024, Advocate General Jean Richard de la Tour delivered his opinion in the case C-4/23, Mirin, concerning the recognition in one Member State of a change of gender obtained in another Member State by a citizen of both States. In his opinion, Advocate General de la Tour states that the refusal of such a recognition would violate the right to move and reside freely within the Union (Art. 21 TFEU, Art. 45 EU Charter of Fundamental Rights) and the right of respect for private and family life (Art. 7 EU Charter of Fundamental Rights).

1. Facts

The underlying case is based on the following facts: a Romanian citizen was registered as female at birth in Romania. After moving with his family to the United Kingdom and acquiring British citizenship, he went through the (medically oriented) gender transition process under English law and finally obtained in 2020 a “Gender Recognition Certificate” under the Gender Recognition Act 2004, confirming his transition from female to male and the corresponding change of his forename. As the applicant retained his Romanian nationality, he requested the competent Romanian authorities (Cluj Civil Status Service) to record the change on his birth certificate, as provided for by Romanian law (Art. 43 of Law No. 119/1996 on Civil Status Documents). As the competent authority refused to recognize the change of name and gender (as well as the Romanian personal numerical code based on gender) obtained in the United Kingdom, the applicant filed an action before the Court of First Instance, Sector 6, Bucharest. The court referred the case to the CJEU for a preliminary ruling on the compatibility with European law (Art. 21 TFEU, Art. 1, 20, 21, 45 of the Charter of Fundamental Rights) of such a refusal based on Romanian law. In particular, the focus is on the Cluj Civil Status Office’s demand that the plaintiff initiates a new judicial procedure for the change of gender in Romania. The plaintiff sees in this request the risk of a contrary outcome to the British decision, as the European Court of Human Rights ruled that the Romanian procedure lacks clarity and predictability (ECHR, X. and Y. v. Romania). In addition, the Romanian court asked whether Brexit had any impact on the case (the UK proceedings were initiated before Brexit and concluded during the transition period).

2. Opinion of the Advocate General

Advocate General de la Tour gave his opinion on these two questions. Regarding the possible consequences of Brexit, de la Tour drew two sets of conclusions from the fact that the applicant still holds Romanian nationality. First, an EU citizen can rely on the right to move freely within the European Union with an identity document issued by his or her Member State of origin (a fortiori after Brexit). Second, the United Kingdom was still a Member State when the applicant exercised his freedom of movement and residence. As the change of gender and first name was acquired, the United Kingdom was also still a Member State. EU law is therefore still applicable as the claimant seeks to enforce in one Member State the consequence of a change lawfully made in another (now former) Member State.

On the question of the recognition of a change of first name and gender made in another Member State, Advocate General de la Tour argues that these issues should be treated differently. The fact that the first name may be sociologically associated with a different sex from the one registered should not be taken into account as a preliminary consideration for recognition (no. 61). He therefore answers the two questions separately. Already at this point, de la Tour specifies that the relevant underpinning logic for this type of case should not be the classical recognition rules of private international law, but rather the implementation and effectiveness of the freedom of movement and residence of EU citizens (nos. 53-55).

a) Change of first name

With regard to the change of the first name, de la Tour states (with reference to the Bogendorff case) that the refusal to recognize the change of the first name legally acquired in another Member State would constitute a violation of the freedoms of Art. 21 TFEU (no. 58). Since the Romanian Government does not give any reason why recognition should not be granted, there should be no obstacle to automatic recognition. The Advocate General considers that the scope of such recognition should not be limited to birth certificates but should be extended to all entries in a civil register, since a change of first name, unlike a change of surname, does not have the same consequences for other family members (nos. 63-64).

b) Change of gender

With regard to gender change, Advocate General de la Tour argues for an analogy with the Court’s case-law on the automatic recognition of name changes, in particular the Freitag decision. Gender, like the name, is an essential element of the personality and therefore protected by Art. 7 of the Charter of Fundamental Rights and Art. 8 ECHR. The jurisprudence on names (in particular Grunkin and Paul) shows that the fact that a Member State does not have its own procedure for such changes (according to de la Tour, this concerns only 2 Member States for gender changes) does not constitute an obstacle to the recognition of a change lawfully made in another Member State (nos. 73-74). Consequently, de la Tour sees the refusal of recognition as a violation of the freedoms of Art. 21 TFEU, because the existence of a national procedure is not sufficient for such a refusal (no. 81). Furthermore, the Romanian procedure cannot be considered compatible with EU law, as the judgment of the European Court of Human Rights X. and Y. v. Romania shows that it makes the implementation of the freedoms of Art. 21 TFEU impossible or excessively difficult (No. 80). Nevertheless, there is nothing to prevent Member States from introducing measures to exclude the risk of fraudulent circumvention of national rules, for example by making the existence of a close connection with the other Member State (e.g. nationality or residence) a condition (nos. 75-78).

Unlike the change of first name, the change of gender affects other aspects of personal status and may have consequences for other members of the family (e.g. the gender of the parent on a child’s birth certificate before the transition) or even for the exercise of other rights based on gender differentiation (e.g. marriage in States that do not recognize same-sex unions, health care, retirement, sports competition). Imposing rules on the Member States in these areas (in particular same-sex marriage) would not be within the competence of the Union (no. 94), so Advocate General de la Tour proposes a limitation to the effect of recognition in the Member State of origin. If the change of gender would have an effect on other documents, the recognition should only have an effect on the person’s birth certificate and the documents derived from it which are used for the movement of the person within the Union, such as identity cards or passports. The Advocate General himself points out that this solution would lead to unsatisfactory consequences in the event of the return of the person concerned to his or her State of origin (no. 96), but considers that the solution leads to a “fair balance” between the public interest of the Member States and the rights of the transgender person.

3. Conclusion

In conclusion, Advocate General de la Tour considers that the refusal to recognize in one Member State a change of first name and gender legally obtained in another Member State violates the freedoms of Art. 21 TFEU. The existence of an own national procedure could not justify the refusal. Drawing an analogy with the Court’s case-law on change of name, the Advocate General recommends that the change of first name should have full effect in the Member State of origin, while the change of gender should be limited to birth certificates and derived documents used for travel (identity card, passport).

Although the proposed solution may not be entirely satisfactory for the persons concerned, as it could still cause difficulties in the Member State of origin, the recognition in one Member State of a change of first name and sex made in another Member State should bring greater security and would underline the mutual trust between Member States within the Union, as opposed to third countries, as demonstrated by the recent decision of the Swiss Federal Tribunal concerning the removal of gender markers under German law

On 21 March 2024, the CJEU delivered its judgment in case C-90/22, Gjensidige.  The case is concerned with two main issues. The first one is the interplay between the CMR and the Brussels I bis Regulation regarding their respective provision on choice of court agreement. Based on Article 31, read in conjunction with Article 41, […]

 

On Tuesday, May 14, 2024, the Hamburg Max Planck Institute will host its 44th monthly virtual workshop Current Research in Private International Law at 11:00-12:30 (CEST). Roxana Banu (University of Oxford) will speak, in English, about the topic

Constructing Imperial Authority through British Imperial Constitutional Law and Private International Law

Historians of the British Empire have long underscored the significance of constitutionalism and of legal pluralism in crafting and sustaining imperial authority. Constitutional law scholars, though to a lesser extent, have also been preoccupied with tracing the imperial history of constitutionalism in the colonies and the metropole. Legal historians and constitutional law scholars have offered us a fascinating array of perspectives on the way in which British imperial constitutional law promised both liberty and control throughout the empire and experimented with constitutional autonomy for the white settler colonies while tightening control for the rest of the empire. But this melange of unequally distributed patterns of authority and the constant recalibration of autonomy and control for different parts of the empire depended on the principles and doctrines of yet another field, which has remained remarkably silent on its imperial past, namely private international law. Unlike in constitutional law and even public international law, there is virtually no account of the colonial history of private international law. In this paper I start to trace that history with an analysis of the way in which key doctrinal principles of private international law, such as comity, territoriality, and the public policy exception were referenced either as alternatives to, or counterparts of, key imperial constitutional law principles of representative government, territoriality, and repugnancy. Imperial actors would appeal to one or another image of imperial authority constructed by either imperial constitutional law or private international law to gain more autonomy or to tighten imperial control. Far from being a relic of the past, the significance of this history can be traced, I argue, in contemporary cases on comity, forum non conveniens, and territoriality.

The presentation will be followed by an open discussion. All are welcome. More information and sign-up here.

If you want to be invited to these events in the future, please write to veranstaltungen@mpipriv.de.

 

Georgia Antonopoulou (University of Birmingham)

From 24 to 26 September 2024, the International Writing Workshop ‘Reimagining Access to Justice: An Equitable Research Partnership with Southeast Asia’ will take place in Jakarta, Indonesia. The writing workshop will focus on the theme of access to civil justice in Southeast Asia and is funded by the British Academy’s International Writing Workshops Programme. It will be organised under three sub-themes: (1) Barriers to Access to Justice, (2) Digital Technologies in Civil Justice, and (3) Access to Justice and Sustainable Development. Senior scholars with specialisation in the relevant workshop themes and editorial experience with leading journals will offer detailed, hands-on feedback on participants’ draft articles and give presentations on effective academic writing and publishing practices. The workshops will cover reasonable costs of travel, accommodation, and meals for the selected participants.

Applications: We invite submissions from researchers and academics, especially at their early stages of their careers, from Indonesia, the Philippines, Malaysia, Cambodia, and Vietnam. Applications should be in English and emailed to the PI Dr G. Antonopoulou, Birmingham Law School, the University of Birmingham (g.antonopoulou@bham.ac.uk). They should include:

• an abstract (max. 200 words);
• a draft article (max. 5,000 words);
• a Curriculum Vitae (max. 2 pages long); and
• a brief statement of motivation (max. 600 words).

The deadline for submission is the 15 July 2024.

During the writing workshop, the selected participants will give a presentation of their articles and then receive feedback from senior scholars with editorial experience to improve and publish their articles. In June 2025, a follow-up writing workshop will take place to monitor improvement. During the second writing workshop, training on writing funding applications will also be provided. The Call for Papers is also available here.

We particularly welcome applications from underrepresented groups. The University of Birmingham’s Equality, Diversity, and Inclusion policy can be found here. While attendance in person is required for the first writing workshop, the option of online attendance can be offered upon request during the second workshop. Special consideration will be given to female participants vested with childcare and/or other domestic responsibilities. Interested applicants are encouraged to include in their statement of motivation any necessary reasonable adjustments to facilitate their meaningful participation in the workshops.

We are looking forward to receiving your applications!

 

On 14 and 15 February 2025, the 5th Conference for Young Researchers in Private International Law will take place at the University of Heidelberg. The topic of the conference will be Digital transformation and Private International Law – Local Connections in Boundless Spaces. Christiane Wendehorst (University of Vienna) will deliver the conference’s keynote lecture. The organizing […]

Miss Anam Abdul Majid (LLM, University of Birmingham; LLB, University of Nairobi; BSC.IBA, United States International University; Advocate and Head of Corporate and Commercial Department, KSM Advocates, Nairobi, Kenya).

Dr Chukwuma Okoli (Assistant Professor in Commercial Conflict of Laws at the University of Birmingham; Senior Research Associate; Private International Law in Emerging Countries, University of Johannesburg)

We would like to thank Joy Chebet, Law Student at Kenyatta University, for her research assistance and comments. We would also like to thank Professor Beligh Elbalti for his critical comments on the draft blogpost.

 

 I. INTRODUCTION

Kenya is one of the countries that make up East Africa and is therefore part of the broader African region. As such, developments in Kenyan law are likely to have a profound impact on neighbouring countries and beyond, consequently warranting special attention.

In the recent case of Ingang’a & 6 others v James Finlay (Kenya) Limited (Petition 7 (E009) of 2021) [2023] KESC 22 (KLR), the Kenyan Supreme Court dismissed an appeal for the recognition and enforcement of a locus inspection order issued by a Scottish Court. The Kenyan Supreme Court held that ‘decisions by foreign courts and tribunals are not automatically recognized or enforceable in Kenya. They must be examined by the courts in Kenya for them to gain recognition and to be enforced’ [para 66]. In its final order, the Court recommended that in Kenya:

‘The Speakers of the National Assembly and the Senate, the Attorney-General, and the Kenya Law Reform Commission, attended with a signal of the utmost urgency, for any necessary amendments, formulation and enactment of statute law to give effect to this judgment and develop the legislation on judicial assistance in obtaining evidence for civil proceedings in foreign courts and tribunals.’

This Case is highly significant, because it extensively addresses the recognition and enforcement of foreign judgments in Kenya and the principles to be considered by the Kenyan Courts. It is therefore a Case that other African countries, common law jurisdictions, and further parts of the globe could find invaluable.

 

II. FACTS

The Case outlined below pertained to the enforcement of a foreign judgment/ruling in Kenya, specifically, a Scottish ruling. As a brief overview, the Appellants were individuals who claimed to work for the Respondent, the latter being a company incorporated in Scotland.  However, their place of employment was Kenya, namely, Kericho. The nature of the claim consisted of work-related injuries, attributed to the Respondent’s negligence due to the Appellants’ poor working conditions at the tea estates in Kericho. The claim was filed before the courts in Scotland, where inspection orders were sought by the Appellants and granted by the Courts. The purpose of the locus inspection order was to collect evidence by sending experts to Kenya and submit a report which can be used by the Scottish court to determine the liability of the Respondent. However, the respondent fearing compliance with the Scottish locus inspection order, sought an order from Kenyan Court to prevent the execution of the locus inspection order in Kenya, leading to a petition being filed by the Appellants before the Employment and Labour Relations Court in Kenya.

Nevertheless, the trial court ruled against the Appellants and stated that the enforcement of foreign judgments in Kenya, especially interlocutory orders, required Kenyan judicial aid to ensure that the foreign judgments aligned with Kenya’s public policy. This was further affirmed by the Court of Appeal, which expressed the same views and reiterated the need for judicial assistance in enforcing foreign judgments and rulings in Kenya. The Court of Appeal held that decisions issued by foreign courts and tribunals are not automatically recognised or enforceable in Kenya and must be examined by the Kenyan courts to gain recognition and be enforced.

The matter was then brought before the Supreme Court of Kenya.

 

III. SUMMARY OF THE JUDGMENT BEFORE THE SUPREME COURT OF KENYA

With regard to the enforcement of foreign judgments, the Supreme Court had to determine ‘whether the locus inspection orders issued by the Scottish Court could be executed in Kenya without intervention by Kenyan authorities.’

However, the Appellants argued that the locus inspection orders were self-executing and did not require an execution process. Instead, inspection orders only required the parties’ compliance. Conversely, the Respondents argued that any decision not delivered by a Kenyan court should be scrutinised by the Kenyan authorities before its execution.

In its decision, the Supreme Court relied on the principle of territoriality, which it referred to as a ‘cornerstone of international law’ [para 51], and further elaborated on the importance of sovereignty. Based on the principle of territoriality, while upholding the principle of sovereignty, the Supreme Court stated that the ‘no judgment of a Court of one country can be executed proprio vigore in another country’ [para 52]. The Supreme Court’s view was that the universal recognition and enforcement of foreign decisions leads to the superiority of foreign nations over national courts. It likewise paves the way for the exposure of arbitrary measures, which are then imposed on the residents of a country against whom measures have been taken abroad. In its statements, the Supreme Court concreted the decision that foreign judgments in Kenya cannot be enforced automatically, but must gain recognition in Kenya through acts of authorisation by the Judiciary, in order to be enforced in Kenya.

The Supreme Court grounded the theoretical basis for enforcing foreign judgments in Kenyan common law as comity. It approved the US approach (Hilton v Guyot) to the effect that: ‘The application of the doctrine of comity means that the recognition of foreign decisions is not out of obligation, but rather out of convenience and utility’ [para 59]. The Court justified comity as:

‘prioritizing citizen protection while taking into account the legitimate interests of foreign claimants. This approach is consistent with the adaptability of international comity as a principle of informed prioritizing national interests rather than absolute obligation, as well as the practical differences between the international and national contexts.’ [para 60]

The US Supreme Court further established the importance of reciprocity and asserted that the Foreign Judgements (Reciprocal Enforcement) Act 2018 was the primary Act governing foreign judgments. The Court recognised that as a constituent country of the United Kingdom, Scotland is a reciprocating country under the Foreign Judgments (Reciprocal Enforcement) Act. However, the orders sought did not fall under the above Act, as locus inspection orders are not on the list of decisions that are expressly mentioned in the Act. Moreover, locus inspection orders are not final orders. Thus, the Supreme Court’s position was that the locus inspection orders could not fall within the ambit of the Foreign Judgments (Reciprocal Enforcement) Act, and the trial court and the Court of Appeal were incorrect in extending the application of the Act to these orders.

Consequently, the Supreme Court highlighted the correct instrument to be relied on for the above matter. It was the Supreme Court’s position that although the Civil Procedure Act does not specifically establish a process for the judicial assistance of orders to undertake local investigations, the same process as for judicial assistance in the examination of witnesses could be imitated for local investigation orders. Thus, the Supreme Court stated that:

‘The procedure of foreign courts seeking judicial assistance in Kenya for examination of witnesses was the same procedure to be followed for carrying out local investigations, examination or adjustment accounts; or to make a partition. That procedure was through the issuance of commission rogatoire or letter of request to the High Court in Kenya seeking assistance. That procedure was not immediately apparent. The High Court and Court of Appeal were wrong for extending the spirit of the beyond its application as that was not the appropriate statute that was applicable to the instant case.’ [para 26]

The process is therefore as under the Sections 54 and 55 of the Civil Procedure Act, Order 28 of the Civil Procedure Rules, as well as the Practice Directions to Standardize Practice and Procedures in the High Court made pursuant to Section 10 of the Judicature Act. It entails issuing a commission rogatoire or letter of request to the Registrar of the High Court in Kenya, seeking assistance. This would then trigger the High Court in Kenya to implement the Rules as contained in Order 28 of the Civil Procedure Rules, 2010 [92 – 99].

 

IV. COMMENTS

An interesting point of classification in this case might be whether this was simply one of judicial assistance for the Kenyan Courts to implement Scottish locus inspection orders in its jurisdiction. Seen from this light, it was not a typical case of recognising and enforcing foreign judgment. Nevertheless, the case presented before the Kenyan Courts, including the Kenyan Supreme Court was premised on recognition and enforcement of foreign judgments.

The Kenyan Supreme Court has settled the debate on the need for foreign judgments to be recognised in Kenya before they can be enforced. The Court also settled that owing to the principle of finality, interim orders could not fall within the Foreign Judgments (Reciprocal Enforcement) Act. It is owing to this principle of finality that the Supreme Court refused to extend the application of the Act to local investigation orders, but rather proceeded to tackle the latter in the same manner as under the Civil Procedure Act and Civil Procedure Rules.

The Supreme Court was correct in establishing that recognition is necessary before foreign judgments can be enforced in Kenya. The principles upon which the Supreme Court came to this conclusion were also correct since territoriality and sovereignty dictate the same. The Supreme Court set a precedent that the Civil Procedure Act and the Civil Procedure Rules are the correct instruments to be relied upon in issuing orders for local investigations, in contrast to the position of the Court of Appeal, which placed local investigations in the ambit of the Foreign Judgments (Reciprocal Enforcement) Act. The Supreme Court adopted its position based on section 52 of the Civil Procedure Act, which empowers courts to issue commission orders and lists local investigations under commission orders.

This decision is crucial, because not only did the Supreme Court lay to rest any confusion over what should constitute the applicable law for local investigations, it also sets down the procedure for foreign courts seeking judicial assistance in Kenya with regard to all four commission orders, as under the Civil Procedure Act. The Civil Procedure Act is the primary Act governing civil litigation in Kenya, while the Civil Procedure Rules 2010 are the primary subsidiary regulations for the same. Commission orders under this Act are divided into four as highlighted above: examination of witnesses, carrying out local investigations, examination or adjustment accounts, or making a partition.

This decision thus did not only tackle orders of local investigation but concluded the process for all four commission orders as highlighted above. In doing so, it established a uniform process for all four of the commission orders, in accordance with the Primary Act and Rules governing civil litigation in Kenya. Although it may appear that the Supreme Court has stretched the application of the Civil Procedure Rules, 2010 in the same way that the Court of Appeal stretched the application of the Foreign Judgments (Reciprocal Enforcement) Act; the Civil Procedure Rules, 2010 are more relevant, given that the rules touch on these four commission orders and are tackled in turn, in the same category, under the Civil Procedure Rules, 2010.  Moreover, while it is true that there is currently a gap in the law as the process for local investigations has not been outlined in the same way that it has been for examination of witnesses, by parity of reasoning the Supreme Court’s reasoning fits, and the logic behind adopting the same process is laudable.

Another interesting aspect of the Supreme Court’s decision is the endorsement of the US approach of comity as the basis of recognising and enforcing foreign judgments in Kenyan common law. This is indeed a radical departure from the common law approach of the theory of obligation, which prevails in other Commonwealth African Countries. In an earlier Case, the Kenyan Court of Appeal in  Jayesh Hasmukh Shah vs Navin Haria & Anor [para 25 – 26] adopted the US principle of comity to recognise and enforce foreign judgments. The principle of comity also formed the sole basis of enforcing a US judgment in Uganda in Christopher Sales v Attorney General, where no reciprocal law exists between the state of origin and the state of recognition. Consequently, it is safe to say that some East African judges are aligning more with the US approach of comity in recognising and enforcing foreign judgments at common law, while many other common law African countries continue to adopt the theory of obligation.

An issue that was not explicitly directed to the Kenyan Supreme Court was that this was a business and human rights case, and one involving the protection of weaker parties. This may have provoked policy reasons from the Court that would have been very useful in developing the law as it relates business and human rights issues, and protection of employees in cross-border matters.

On a final note, the robust reasoning of their Lordships must be commended in this recent Supreme Court decision, given that it adds significant value to the jurisprudence of recognising and enforcing foreign judgments in the Commonwealth as a whole, in East Africa overall, and particularly in Kenya. The comparative approach adopted in this judgment will also prove to be edifying to anyone with an interest in comparative aspects of the recognition and enforcement of foreign judgments globally.

 

English courts are renowned for upholding party autonomy. However, a recent judgment in Re Russian Aircraft Operator Policy Claims (Jurisdiction Applications) [2024] EWHC 734 (Comm) (Henshaw J, 28 March 2024) demonstrates their reluctance to give effect to Russian jurisdiction agreements in the current climate. Facts The claimants are owners, lessors, financing banks and managers of […]

The Second Postgraduate Law Conference of the Centre for Private International Law will be taking place on 6 May 2024, 09:00 – 17:00 GMT.  This is a virtual event bringing together early career scholars working in the private international law field or fields with an intersection to private international law such as EU Law, Human Rights Law and AI Law. See the Programme and Register to attend one of the panels on international family law, artificial intelligence, civil and commercial law or human rights.

With great sadness did we receive notice that Erik Jayme passed away on 1 May 2024, shortly before his 90th birthday on 8 June. Everyone in the CoL and PIL world is familiar with and is probably admiring his outstanding and often path-breaking work as a global scholar. Those who met him in person were certainly overwhelmed by his humour and humanity, by his talent to approach people and engage them into conversations about the law, art and culture. Anyone who had the privilege of attending lectures of his will remember his profound and often surprising and unconventional views, paths and turns through the subject matter, often combined with a subtle and entertaining irony.

Erik Jayme was born in Montréal, as the son of a German Huguenot of French origin and a Norwegian. The parents had married in Detroit before a protestant priest. What else if not a profound interest in cross-border relations, different cultures and languages as well as bridging cultural differences and, ultimately, Private International Law could have been the result? “There was no other way“, as he put it once. His father, Georg, born on 10 April 1899 in Ober-Modau in South Hesse of Germany, passed away on 1 January 1979 in Darmstadt, later became a professor of what today would probably be called chemical engineering, with great success, on cellulose production technologies at the University of Darmstadt. His passion for collecting Expressionist and 19th century art undoubtedly served as an inspiration for Erik to later devote himself to art, art history and finally art law. During his youth, as Erik mentioned once, he would use his exceptionally broad knowledge on art and any aspect of culture that crossed his mind to draw his tennis partners into sophisticated conversations on the court. Perhaps not least with a view to his father’s expectations, Erik decided to study law at the University of Munich, but added courses in art history to his curriculum. He liked to recall, how he approached the world-famous art historian, Hans Sedlmayr, to ask him whether he might be allowed to attend his seminars, despite being (“unfortunately“) a law student. Sedlmayr replied that Spinoza had been wise to be grinding optical lenses to earn a living, and in light of a similar wisdom that the applicant would show, he was accepted.

In 1961, at the age of 27, Erik Jayme delivered his doctoral thesis on „Spannungen bei der Anwendung italienischen Familienrechts durch deutsche Gerichte“ (“Tension in the application of Italian family law by German courts“).[1] While clerking at the court of Darmstadt, Erik Jayme published his first article in this field, inspired by a case in which he was involved. International family and succession law as well as questions of citizenship became a focus of his academic research and publications for decades, including his Habilitation in 1971 on „Die Familie im Recht der unerlaubten Handlungen” (“The Family in Tort Law“),[2] in particular with a view to relations connected with Italy. This may show early traces of what became more apparent later: More than others, Erik Jayme took the liberty to make use of law, legal research and academia to build his own way of life (that should definitely include Italy), inspired by seemingly singularities in a concrete case that would be seen as a sign for something greater and thus transformed into theories and concepts, enriched by a dialogue with concepts from other fields such as art history. Is this way of producing creativity also the source of what later rocked the private international law of South America: the « diálogo das fontes como método »?[3] His research on Pasquale Stanislao Mancini,[4] later combined with studies on Anton Mittermaier,[5] Giuseppe Pisanelli [6] and Emerico Amari [7] as well as on Antonio Canova [8] were received as leading works on conceptual developments in the fields of choice of law, international civil procedural law, comparative law as well as international art and cultural property law, and over time, Erik Jayme became one of the world leading and most influential scholars in the field. The substantial contribution Erik Jayme provided to the work of The Hague Academy of International law, was perfectly summarized in Teun Struycken’s « Hommage à Erik Jayme » delivered in 2016 on behalf of the Academy’s Curatorium:[9]

« Vous n’avez cessé de souligner que les systèmes de droit ne s’isolent pas de la société humaine, mais s‘y imbriquent. Ils sont même des expressions de la culture des sociétés. La culture s’exprime aussi et surtout dans les beaux arts. »

Speaking of art and cultural property law: It seems to be the year of 1990 when Erik Jayme published for the first time a piece in this field, namely a short conference report on what has now become an eternal question: „Internationaler Kulturgüterschutz: lex originis oder lex rei sitae“ (“Protection of international cultural property: lex originis or lex rei sitae“).[10] In 1991, his seminal work on „Kunstwerk und Nation: Zuordnungsprobleme im internationalen Kulturgüterschutz“ (“Artwork and nation: Problems of attribution in the international protection of cultural property“)[11] appeared as a report for the historical-philosophical branch of the Heidelberg Academy of Sciences where he traced back the notion of a “home“ (« une patrie » ) of an artwork to Antonio Canova‘s activities as the Vatican’s diplomate at the Congress of Vienna where Canova, a sculptural artist by the way, succeeded in bringing home the cultural treasures taken by Napoléon Bonaparte from Rome to Paris (into the newly built Louvre) back to Rome (into the newly built Museo Chiaramonti), despite the formal legalisation of this taking in the Treaty of Tolentino of 1797. “This is where the notion of a lex originis was born”. Still in 1991, the Institut de Droit International, concluded, in its Resolution of Basel « La vente internationale d’objets d’arts sous l’angle de la protection du patrimoine culturel »  in its Art. 2: « Le transfert de la propriété des objets d’art – appartenant au patrimoine culturel du pays d’origine du bien – est soumis à la loi de ce pays » . Much later, in 2005, when I had the privilege of travelling with him to the Vanderbilt Law School and the Harvard Law School for presentations of ours on „Global claims for art“, he further developed his vision of a work of art as quasi-persons who should be conceived as having their own cultural identity,[12] to be located at the place where the artwork is most intensely inspiring the public and thus is “living“. From there it was only a small step to calling for a guardian ad litem for an artwork, just as for a child, in legal proceedings. When Erik Jayme was introduced to the audiences in Vanderbilt and Harvard, the academic hosts would usually present him, in all honest admiration, as “a true Renaissance man“. I would believe that he felt more affiliated to the 19th century, but this might not necessarily exclude the perception of him as a “Renaissance man“ from a transatlantic perspective, all the more as there seems to be no suitable term in English for the German „Universalgelehrter“ (literally: “universal scholar”).

This is just a very small fraction of Erik Jayme’s amazingly wide-ranging, rich and influential scholarly life and of his extraordinarily inspiring personality. Many others may and should add their own perspectives, perhaps even on this blog. We will all miss him, but he will live on in our memories!

 

[1] Jayme, Spannungen bei der Anwendung italienischen Familienrechts durch deutsche Gerichte, Gieseking 1961 (LCCN 65048319).

[2] Jayme, Die Familie im Recht der unerlaubten Handlungen, Metzner 1971 (LCCN 72599373).

[3] Jayme, « Identité culturelle et intégration: le droit international privé postmoderne », Recueil des Cours 251 (1995), 259 (Recueil des cours en ligne).

[4] See e.g. Jayme, Pasquale Stanislao Mancini : internationales Privatrecht zwischen Risorgimento und praktischer Jurisprudenz, Gremer 1990 (LCCN 81116205).

[5] Jayme, „Italienische Zustände“, in: Moritz/Schroeder (eds.), Carl Joseph Anton Mittermaier (1787-1867) – Ein Heidelberger Professor zwischen nationaler Politik und globalem Rechtsdenken“, Regionalkultur 2009, pp. 29 et seq.

[6] See e.g. Jayme, « Giuseppe Pisanelli fondatore della scienza del diritto processuale civile internazionale », in: Cristina Vano (eds.), Giuseppe Pisanelli – Scienza del processo – cultura delle leggi e avvocatura tra periferiae nazione, Neapel 2005, pp. 111 e seguenti (LCCN 2006369541).

[7] See e.g. Jayme, « Emerico Amari: L’attualità del suo pensiero nel diritto comparato con particolare riguardo alla teoria del progresso », in: Fabrizio Simon (ed.), L’Identità culturale della Sicilia risorgimentale, Atti del convegno per il bicentenario della nascita di Emerico Amari e di Francesco Ferrara, in Storia e Politica – Rivista quadrimestrale III, N.°2/2011, pp. 60 e seguenti.

[8] See e.g. Jayme, Antonio Canova (1757-1822) als Künstler und Diplomat: Zur Rückkehr von Teilen der Bibliotheca Palantina nach Heidelberg in den Jahren 1815 und 1816, Heidelberg 1994 (LCCN 95207445).

[9] V.M. Struycken, « Hommage à Erik Jayme », Session du Curatorium du 15 janvier 2016 à Paris (disponible ici: https://www.hagueacademy.nl/2016/02/hommage-a-dr-erik-jayme/?lang=fr).

[10] Jayme, „Internationaler Kulturgüterschutz: lex originis oder lex rei sitae“, IPRax 1990, 347.

[11] Jayme, Kunstwerk und Nation: Zuordnungsprobleme im internationalen Kulturgüterschutz, C. Winter 1991.

[12] See e.g. Jayme, “Gobalization in Art Law: Clash of Interests and International Tendencies”, Vand. J. Int. L. 38 (2005), 927, 938 et seq.

A quick flag of the letter before action in Ali Hussein Julood v BP, a claim relating to gas flaring in Iraqi oil fields. BP is likely to contest jurisdiction under forum non conveniens (a reminder that such defence would be impossible under Lugano and very narrow under Brussels Ia). Information to date is vague however one imagines applicable law may be argued under Article 7 Rome II (and contested by BP as Maran did in Begum v Maran), giving claimants the choice between lex loci delicti commissi or lex locus damni, with for the former the discussion whether it is BP’s company policy with respect to flaring etc that is the real locus delicti.

Geert.

EU Private International Law, 4th ed. 2023, 4.56 ff.

A7 Rome II applicable law (and likely jurisdictional challenge) claxon
LBA Letter before action issued, flaring overseas https://t.co/SZzdbwHgte

— Geert Van Calster (@GAVClaw) April 23, 2024