Conflictoflaws

I.  Introduction

Foreign family law decisions can be recognized, and where necessary, enforced in Japan if they meet the prescribed requirements for this purpose. Prior to 2018, it was an establish practice to apply the same recognition and enforcement regime used for civil and commercial matters to foreign family law decisions. However, discussions existed in literature regarding whether constitutive family law judgments and decrees should be recognized following the choice of law approach, or whether the specific characteristics of foreign family law decisions might justify exceptions, such as the non-application of certain recognition requirements (see Mario Takeshita, “The Recognition of Foreign Judgments by Japanese Courts” 39 Japanese Annual of International Law (1996) 59-61).

Since 2018, the applicable regime has been significantly clarified, effectively putting an end to much of the prior academic debate on the subject. This development stems from the introduction of new provisions on the recognition and enforcement of foreign family law decisions in the Act No. 20 of 2018, which amends the procedural acts applicable to family law cases as it will be outline below (English translation can be found in 62 Japanese Yearbook of International Law (2019) 486. See also Prof. Yasuhiro Okuda’s translation in 50 ZJapanR/J. Japan.L (2020) 235).

This Act, which came into force on 1 April 2019, also introduces new detailed rules on international jurisdictional in family law disputes (for details, see Yuko Nishitani, “New International Civil Procedure Law of Japan in Status and Family Matters” 62 Japanese Yearbook of International Law (2019) 141; Yasuhiro Okuda, New Rules on International Jurisdiction of Japanese Courts in Family Matters, 50 ZJapanR/J. Japan.L (2020) 217).

Nonetheless, it has to be acknowledged that, in the context of the recognition and enforcement of foreign family law decisions, several issues remain open. In addition, since the entry into force of the new law, there have been relatively few reported cases that provide clear guidance on the application of the legal framework. In this respect, the Chiba District Court’s judgment of 19 July 2024 presented here, concerning the enforcement of a Singaporean divorce judgment component ordering the payment of child living expenses, offers valuable insights.

 

II. Facts

The case concerns X’s (ex-wife, Plaintiff) request for an enforcement judgment under Article 24 of the Civil Enforcement Act (CEA) to enforce a portion of a Singaporean judgment rendered in November 2010, requiring the Y (ex-husband, the Defendant) to pay, inter alia, living expenses for two of their three children until they reached the age of majority, along with accrued interest. X initiated the enforcement action in 2019. By the time of the action, one child had already attained the age of majority under Singaporean law (21 years), while the other reached the age of majority during the pendency of the case.

The parties in the case married in Japan in the early 1990s, where they lived and had two sons. In 1997, the Y relocated to Singapore, followed by the rest of the family in 1998. While living in Singapore, they had their third child, a daughter. In March 2007, X initiated divorce proceedings before Singaporean courts, with Y participating by appointing legal counsel and responding to the proceedings.

In accordance with Singapore’s two-step divorce process, the court issued a provisional judgment in October 2008 dissolving the marriage. The court then proceeded to address ancillary matters, including custody, guardianship, visitation, living expenses, and the division of joint assets. During these proceedings, Y permanently left Singapore and returned to Japan in June 2010. Following his departure, Y ceased to participate in the proceedings, and his legal counsel was subsequently granted permission to withdraw from representing him.

In November 2010, the Singaporean court issued a final judgment granting X sole custody and guardianship of the children, ordering the payment of living expenses, and dividing the couple’s joint assets. Prior to the hearing, a notice was sent to Y’s last known address, which he had provided during the proceedings. However, the judgment, as well as the summons for appeal, was not served on Y, leading to the expiration of the appeal period without the judgment being challenged.

In 2019, X sought enforcement of the Singaporean judgment as indicated above. Before the Court, the parties disputed most of the recognition requirements (article 118 of the Code of Civil Procedure [CCP]). Y also challenged enforcement by raising a defense based on the existence of a ground for an objection against civil execution, notably the fact that the limitation period for the claims related to the payment of living expenses under the foreign judgment had expired. Finally, Y argued that X’s request to enforce the foreign judgment constituted an abuse of right or a violation of the principle of good faith.

 

III. Ruling

In its judgment rendered on 19 July 2024, the Chiba District Court largely dismissed Y’s arguments and granted X’s application, with two exceptions: the court rejected X’s claim for living expenses claim for the children beyond the age of 21. It did not also allow the enforcement of the portion of accrued interest on the living expenses, which the Court found to be extinguished under Singaporean statute of limitations.

Before addressing each of the issues raised, the court first outlined the general applicable principles, citing relevant Supreme Court cases where available. Although these parts are crucial, they will be omitted from the summary for brevity.

 

1. Whether the foreign judgment can be deemed final [Article 118, first sentence of the CCP]

According to the court, under Singaporean law, a judgment becomes effective on the date it is issued, and an appeal must be filed within 28 days from the judgment date, regardless of whether the judgment is served. The court observed that since no summons for an appeal was served within this period, the foreign judgment should be deemed final.

 

2. Whether the foreign court had jurisdiction [Article 118(1) of the CCP]

The court first noted that the foreign lawsuit involved X seeking divorce and addressing ancillary matters with Y. The court, then categorized the case as “personal status” case, and assessed the indirect jurisdiction of the foreign court by reference to the Japanese rules of direct jurisdiction in personal status cases as set out in the Personal Status Litigation Act (PSLA), article 3-2 et seq. For the court, article 3-2(i) of the PSLA allows that an action concerning personal status may be filed with the courts in Japan in when the defendant has domicile in Japan, and that jurisdiction is determined at the time the lawsuit is filed (article 3-12 of the CCP). The court then found that, at the time the foreign proceeding was initiated, both parties were domiciled in Singapore. Therefore, based on Japan’s rules on international jurisdiction in personal status cases, the court concluded that the Singaporean court had jurisdiction over the case. Furthermore, the court considered that there were no circumstances suggesting that it would be unreasonable, on the basis of the principle of jori (naturalis ratio), to recognize the foreign judgment issued by the foreign court.

 

3. Whether the procedure leading to the foreign judgment violates public policy (the lack of service of the foreign judgment on Y) [Article 118(3) of the CCP]

The court admitted that the foreign judgment was not served on Y, and that he was not aware of it within the appeal period. However, the court determined that, based on Y’s conduct during the proceedings, he had voluntarily waived his right to be informed of the judgment’s issuance. According to the court, Y knew a judgment on ancillary matters would be delivered and had the opportunity to receive it through proper procedures. The court also found that, while Y was not aware of the judgment within the appeal period, he had been given procedural safeguards and ample opportunity to become informed. Therefore, the court concluded that the lack of service of the foreign judgment did not violate the fundamental principles of Japanese procedural public policy.

 

4. Whether the content of the foreign judgment violates [substantive] public policy (the amount of living expenses for the children) [Article 118(3) of the CCP]

The court held that the foreign judgment’s calculation of the children’s living expenses was based on a reasonable evaluation of the parties’ financial capacity, rejecting Y’s argument that the calculation was unrelated to his financial situation or had punitive elements. The court further stated that the amount stipulated in the foreign judgment was not excessive or inconsistent with Japanese public policy, given the actual living expenses of the children. Moreover, the court emphasized that Y’s challenge, based on his decreased or absent income was not accepted by the foreign court, would constitute a prohibited review of the merits under Article 24(4) of the CEA.

 

5. Whether reciprocity is established (Art. 1118(4) of the CCP)

For the court, the requirements for recognizing a foreign judgment in Singapore are based on English common law, which broadly aligns with the conditions outlined in Article 118 of the CCP. Thus, the court determined that reciprocity exists between Singapore and Japan.

 

6. The applicability of the statute of limitations on the claim for living expenses under the foreign judgment

The court confirmed that the party opposing enforcement of a foreign judgment could raise in the exequatur proceedings defenses based on the extinction or modification of claims that occurred after the judgment was rendered. The court then determined that Singaporean law was applicable to the defense of extinctive prescription. Thereafter, the court compared the Singaporean limitation periods (12 years for claims based on the judgment and 6 years for interest) with Japan’s shorter periods (5 years or 10 years for claims confirmed by a final judgment). The court found that applying Singapore’s longer limitation periods did not clearly violate Japan’s public policy, upholding the validity of living expense claims filed within the 12-year period. However, it ruled that interest claims accrued before October 2013 had been extinguished due to the expiration of the 6-year limitation period.

 

7. Abuse of Rights or Violation of the Principle of Good Faith

The court addressed Y’s argument that X’s attempt to enforce the foreign judgment constitutes an abuse of rights or a violation of good faith. The court rejected this claim, stating that enforcing a judgment in accordance with the law does not breach good faith or constitute an abuse of rights. In addition, the court found no evidence to support Y’s argument.

 

IV. Comments

1. Significance of the Case

The Chiba District Court judgment of 19 July 2024 is significant for its treatment of various issues concerning the recognition and enforcement of foreign family law decisions under the new legal framework. The court addressed key issues such as indirect jurisdiction, procedural and substantive public policy, reciprocity, and the ability to raise defenses during the exequatur process, including objections based on the expiration of limitation periods and the consistency of foreign law with Japanese public policy. Most of these issues are subject of ongoing academic discussion in Japan (for an overview, see Manabu Iwamoto, “Recognition and Enforcement of Foreign Decisions on Personal Status Litigation and Family Relations Cases” 62 Japanese Yearbook of International Law (2019) 226).

 

2. Personal Status Cases v. Domestic Relations Cases

Japan’s legal framework for recognizing foreign judgments in general is governed primarily by domestic law. As far as foreign family law decisions are concerned, it is generally admitted that their recognition and enforcement depend on whether the family law relationship is classified as a “personal status case” or a “domestic relations cases.”

“Personal status cases” generally encompass “contentious” family law disputes concerning marital or parental relationships, such as divorce, which is a quintessential example of a “personal status case”. Family law matters in this category, as determined by article 2 of the Personal Status Litigation Act (PSLA), are governed by its provisions. Given the constitutive nature, foreign judgments on personal status cases typically do not require enforcement.

On the other hand, “domestic relations cases” groups family matters that are generally “non-contentious”, although certain cases, such as claims for custody or maintenance, can be highly adversarial. These matters are governed Domestic Relations Case Procedure Act (DRCPA), which includes appended tables listing cases classified as domestic relations cases. Unlike personal status cases, some types of domestic relations cases may involve elements that require enforcement, such as the payment of maintenance, return of a child etc.).

From the perspective of Japanese law, maintenance cases typically fall under this category (see Manabu Iwamoto, “International Recovery of Maintenance in Japan” 65 Japanese Yearbook of International Law (2022) 254).

 

3. Applicable legal regime

In this regard, the 2018 reform brought some significant changes. Indeed, a new provision was introduced in the DRCPA (new article 79-2) and article 24 of the CEA on the enforcement of foreign judgments was modified to accommodate these changes. However, no similar provision was introduced in the PSLA, since it was considered that contentious judgments in family matter are not different from contentious judgments in civil and commercial matters, therefore, they should be subject to the same legal regime.

Accordingly, depending on the type of case involved as outline above, foreign family law decisions can be recognized either (i) by direct application of article 118 of the CCP, when the foreign judgment in question pertains to “personal status cases”, or (ii) by mutatis mutandis application of article 118 of the CCP, when the foreign decision is rendered in a matter relating to “domestic relations cases” pursuant to article 79-2 of the DRCPA. The main difference between these two approaches is that, unlike foreign personal status judgments, the requirements of article 118 of the CCP would fully apply mutatis mutandis to foreign domestic relations decisions, provided that doing so “is not contrary to the nature” of the decision in question (article 79-2 of the DRCPA). In other words, for foreign domestic relations decisions, the requirements of article 118 of the CCP may apply partially, depending on the nature of the case.

In this context, since maintenance judgments is typically classified under “domestic relations cases”, their recognition is, as a matter of principle, governed by article 79-2 of the DRCPA, along with the mutatis mutandis application of the requirements of article 118 of the CCP. Whether recognition and enforcement of foreign maintenance judgments is subject to full or partial application of the recognition requirements under article 118 of the CCP is subject to discussion in literature. However, the general tendency among courts, as confirmed by the case presented here, is to apply all the recognition requirements.

 

4. Conjunction between personal status cases and domestic relations cases

A key challenge arises, however, when a foreign family law judgment combines elements of personal status (e.g., divorce) with issues categorized under domestic relations (e.g., child custody or maintenance). In this regard, while the Chiba District Court treated the foreign judgment as a single “personal status case” and applied article 118 of the CCP, without reference to Article 79-2 of the DRCPA, prevailing literature and case law suggest that each aspect should be treated separately.

Following this approach, the court should have proceeded as follows: first, it should have categorized the court order to pay child living expenses as pertaining to “domestic relations cases”. Under this categorization, the court would then have needed to assess, pursuant to article 79-2 of the DRCPA, whether all the recognition requirements of article 118 of the CCP should apply mutatis mutandis, or only partially, depending on the nature of the case. Finally, the court should have reviewed the indirect jurisdiction of the foreign court by reference to the jurisdictional rules set out in the DRCPA (specifically, article 3-10, which governs cases relating to maintenance obligation), rather than those set out in the PSLA.

That said, it has to be acknowledged, that the court’s ultimate conclusion would likely not have changed since the jurisdiction of the foreign court would also have been justified by the jurisdictional rules included in the PSLA, which allow actions for ancillary measures, including child custody and support, to be decided by the court exercising divorce jurisdiction (article 3-4 of the PSLA).

The last issue of RabelsZ 2024 has just been released. It contains the following contributions (which are all available Open Access: CC BY 4.0):

 

Holger Fleischer & Simon Horn, Unternehmensskandale und skandalgetriebene Regulierung: Die Stavisky-Affäre als Prüfstein (Corporate Scandals and Scandal-Driven Regulation: The Stavisky Affair as Touchstone), pp. 648–693, https://doi.org/10.1628/rabelsz-2024-0062

This article is an opening contribution to a new research program on corporate scandals and their legal treatment around the world. In addition to addressing civil and criminal sanctions, the main focus lies on the widespread but under-researched phenomenon of scandal-driven reform legislation. Selected case studies from the past and the present will help to create a better picture of the connections between business scandals and legal regulation. A first touchstone for such systematic comparative scandal-based research is found in early 1930s France with the Stavisky affair – a case that not only kept the business and financial world in suspense, but one that also shook the political foundations of the Third Republic.

 

Chukwuma Samuel Adesina Okoli & Richard Frimpong Oppong, Enhancing the Draft African Principles on the Law Applicable to International Commercial Contracts – Innovations for the African Context, pp. 694–733, https://doi.org/10.1628/rabelsz-2024-0050

This article examines the draft African Principles on the Law Applicable to International Commercial Contracts, evaluating current and proposed choice of law rules in numerous African countries and incorporating global comparative perspectives. It argues that the African Principles should not only largely echo regional/supranational and international instruments like the Rome I Regulation and the Hague Principles on the Law Applicable to Commercial Contracts but should innovate to address the specific needs of the African context. The article suggests reforms in several areas: the scope of the African Principles, protection of weaker parties such as consumers and employees, government contracts, non-state law, and in provisions for the law applicable in the absence of choice.

 

Béligh Elbalti, The Applicable Law in Succession Matters in the MENA Arab Jurisdictions – Special Focus on Interfaith Successions and Difference of Religion as an Impediment to Inheritance, pp. 734–759, https://doi.org/10.1628/rabelsz-2024-0057

This article examines the question of the law applicable in cross-border successions in the MENA Arab region, with a particular focus on the issue of interfaith succession. It shows that the private international law treatment of succession matters depends largely on derogative factors, in particular the involvement of Islam as the religion of one of the parties. In cases where all the parties are foreign non-Muslims, the conflict of laws approach is usually observed, and the foreign law is applied. However, if one of the parties is a Muslim, nationality as the connecting factor is effectively supplanted by the religion of the parties, and the lex fori is applied. Unlike the usual perspective, which typically examines this approach through the lens of public policy, this article argues that the practice, of substituting the lex fori for the ordinarily applicable law in disputes involving Muslims, is based on an »unwritten principle of private international law« that effectively designates the Islamic religion as a de facto connecting factor under the cover of public policy.

 

Martin Lutschounig, Eingeschränkte Anwendung des lex fori-Prinzips bei internationalen Verkehrsunfällen (Limited Application of the lex fori Principle for Cross-border Traffic Accidents), pp. 760–786, https://doi.org/10.1628/rabelsz-2024-0061

According to the principle of forum regit processum, a court deciding a dispute applies its own national procedural law even in cases which are substantively governed by foreign law. It is therefore crucial how the individual legal question is categorized, namely whether it is classified as substantive or procedural. According to the prevailing opinion, this decision is made applying the lex fori. The situation is different, however, under the Rome II Regulation, as also the scope of the applicable law (lex causae) is subject to an autonomous interpretation. The article argues that the question of whether a foreign rule is to be classified as procedural or substantive is, therefore, not a question of national but of autonomous European law. A classification according to the lex fori would, by contrast, bear the danger of leading to different scopes of application of the lex causae depending on the place of jurisdiction. These problems are illustrated with reference to traffic accident cases in which a litigant seeks recovery of a supplementary claim, such as the pretrial costs of an expert opinion, an out-of-court settlement, or lump-sum costs.

 

As always, this issue also contains several reviews of literature in the fields of private international law, international civil procedure and comparative law (pp. 787–828). The issue closes with an index covering all contributions of the year 2024 (pp. 829–854).

Edited by: 

Dr Chukwuma Okoli, University of Birmingham, United Kingdom

Dr Eghosa O. Ekhator, University of Derby, United Kingdom

Professor Veronica Ruiz Abou-Nigm, University of Edinburgh, United Kingdom

Professor Ralf Michaels, Max Planck Institute for Comparative and International Private Law, Germany

Hans van Loon, Netherlands 

OVERVIEW 

The Journal of Sustainable Development Law and Policy invites scholarly articles for publication in a special issue focusing on the theme “Private International Law and Sustainable Development in Africa.” This is an area with limited scholarship in Africa, as most research has traditionally emphasized substantive laws, often neglecting the critical role of private international law in sustainable development. Interested researchers should consider themes such as the ones explored in Michaels/Ruiz Abou-Nigm/Van Loon (eds.) (2021): The Private Side of Transforming our World – UN Sustainable Development Goals 2030 and the Role of Private International Law. Proposals should emphasise private international law and sustainable development issues that are of particular relevance to the African context.

We encourage researchers to explore the intersection of private international law and sustainable development in relation to issues such as environmental protection, corporate social responsibility, and the protection of vulnerable groups (for example, employees, consumers, migrants, and indigenous peoples). Interesting topics in private international law could include how multinational companies are held accountable to host communities in Africa regarding cross-border environmental issues including climate change, as well as social and economic sustainability. Researchers could engage with the regulatory framework for multinational companies in cross-border transactions affecting corporate social responsibility in Africa, and the enhancement of human rights standards and social justice in cross-border employment matters in Africa .They might also wish to reflect on the implications for Africa of the new EU Directive 2024/1760 on corporate sustainability due diligence, and of similar due diligence legislative initiatives deployed at the national level in different countries. Other relevant topics include the African Continental Free Trade Agreement and its relationship with private international law and sustainable development, as well as the harmonization of private international law in Africa and its relation with sustainability goals, regional economic integration, abuses of party autonomy in international commercial contracts, and the appeal of international commercial adjudication in Africa. These are all themes that can be explored from a sustainability perspective.

We are particularly interested in innovative academic approaches that address these themes within the African context. We welcome proposals from all approaches, including critical, doctrinal, analytical, conceptual, reflexive, interdisciplinary, post-critical and speculative traditions of law, that enable a serious scholarly reflection on private international law and sustainable development. Contributions will start filling a significant gap in the literature and promote a deeper understanding the relationships, the impact and the potential of private international law in sustainable development in Africa.

SUBMISSION GUIDELINES 

Applicants are invited to submit a research proposal of up to 500 words, together with a short CV in the same document. Submissions should be sent to c.okoli@bham.ac.uk, and copy E.Ekhator@derby.ac.uk, andinfo@ogeesinstitute.edu.ng by 10 January, 2025 with the email subject clearly marked “Submission Proposal – Special Issue JSDP – PIL and Sustainable Development in Africa”.

Proposals will be reviewed by the editors and selected participants will be informed by the end of January 2025.

Full draft of selected papers of up to 8,000 words inclusive of footnotes should be submitted by 30 June 2025 following the ‘submission guidelines’ section of The Journal of Sustainable Development and Policy: https://www.ogeesinstitute.edu.ng/submissions.

The editors are seeking opportunities for funding to support a conference in late 2025 to discuss draft papers in advance of publication of the special issue in early 2026.

ABOUT THE PROJECT 

Read more about the project The Private Side of Transforming our World – UN Sustainable Development Goals 2030 and the Role of Private International Law here 

Since its inception in 2001, the annual survey on Chinese judicial practice in private international law, published by the Chinese Journal of International Law,  has served as a valuable source of information on Chinese practice in private international law, particularly during periods when case law was not readily available (notably prior to 2013). The first annual survery, titled ‘Private International Law in the Chinese Judicial Practice in 2001’, appeared in Vol. 2(1), 2003, and was prepared by Professors Huang Jin and Du Huangfang. However, in its early years, the survey was not published on a regular basis. Indeed, in addition to the 2001 survey, only three others were published between 2005 and 2014: the survey for the year 2002 (published in 2005), for 2003 (published in 2008), and for 2006 (published in 2009).

 

Since 2015, the regular publication of the survey has been ensured by Professor He Qisheng of Peking University Law School under the title “Chronology of Practice: Chinese Practice in Private International Law”. (For previous announcements on this blog, see the posts for 2018, 2019, 2020, and 2021. Annual surveys for the years 2013 to 2018 are also available on Professor He’s SSRN page.) Professor He’s dedication to maintaining and expanding the annual survey has been instrumental in ensuring it remains an indispensable resource for the field, while making information on private international law in China readily accessible to non-Sinophone researchers.

With that said, the  Chronology of Practice: Chinese Practice in Private International Law in 2023 is now available, marking the 11th consecutive annual survey since 2015. This year’s edition is particularly noteworthy as it includes English translations of recently enacted legal provisions, include among others:

• The new provisions on international jurisdiction (Chapter 24, “Jurisdiction” of the Civil Procedure Law (2023 Amendment), Arts. 276–282),
• Provisions on service of process and taking of evidence (Chapter 25, “Service of Process, Taking of Evidence, and Periods” of the Civil Procedure Law (2023 Amendment), Arts. 283–287),
• Provisions on foreign judgments (Arts. 293–296 of the Civil Procedure Law (2023 Amendment)), and
• The Supreme People’s Court Interpretation on Certain Issues Concerning the Application of the Law of the PRC on the Application of Law to Foreign-Related Civil Relations (II) (Arts. 1–13).

Like its predecessors, this year’s survey provides important updates and further enhances accessibility to key legal developments for researchers and practitioners of private international law.

 

The abstract of 2023 survey reads as follows:

The survey of the Chinese practices in private international law in 2023 highlights the following aspects: First, four new laws and two administrative regulations, three judicial interpretations by the Supreme People’s Court (“SPC”) have been formulated, and six groups of 44 typical cases have been selected by the SPC. Notably, China acceded to the Hague Apostille Convention this year. Additionally, Chinese courts concluded 24,000 foreign-related civil and commercial cases, 16,000 maritime cases, and 16,000 commercial arbitration judicial review cases. Second, Part IV of the Civil Procedure Law was amended to include new provisions addressing jurisdiction, service of process abroad, taking of evidence and periods, as well as recognition and enforcement of foreign judgments and arbitral awards. These new rules and relevant cases are presented throughout the Survey. Third, the application of international treaties and practices has emerged as a significant topic, with new rules in the Foreign Relations Law and the SPC Interpretation of International Treaties and International Practices. Additionally, the SPC selected 14 representative cases in this regard. Fourth, concerning the ascertainment of foreign laws, the SPC issued two judicial interpretations and selected three relevant cases. Fifth, regarding the judicial review of arbitration cases, the SPC has selected several Typical Cases of Judicial Review of Arbitration, which serve as significant guiding examples.

 

The table of content of the paper is as follows:

I. Introduction

II. Overview

• II.A. Report on the Work of the SPC in 2023
• II.B. New laws and the SPC’s judicial interpretations
• II.C. Typical cases

III. Jurisdiction

• III.A. Rules in the Civil Procedure Law 2023
• III.B. Choice of court agreement
  • III.B.i. Standard terms and conditions
  • III.B.ii. Asymmetric choice of court agreement
• III.C. Forum non convenience

I.V. Choice of law

• IV.A. Characterization
• IV.B. Ascertainment of foreign law
  • IV.B.i. SPC Private International Law Interpretation II
  • IV.B.ii. SPC Decision on Amending the CICC Provisions
  • IV.B.iii. Cases on ascertainment of foreign laws
• ?IV.C. Extraterritoriality of Chinese laws

V. International conventions and international practices

• V.A. Foreign Relations Law
• V.B. SPC Interpretation of International Treaties and International Practices
• V.C. Cases on the application of international conventions
• V.D. Cases on the application of international practices

VI. Service of process, taking of evidence and periods

• VI.A. Rules in the Civil Procedure Law 2023
• VI.B. Service of process abroad
• VI.C. Evidence
• VI.D. Apostille

VII. Foreign Judgments

• VII.A. Rules in the Civil Procedure Law 2023
• VII.B. Cases about recognition and enforcement of foreign judgments

VIII. International arbitration and foreign arbitral awards

• VIII.A. Rules in the Civil Procedure Law 2023
• VIII.B. Judicial review of arbitration

The University of Edinburgh is looking to fill a new position in Global Law – which is understood to include private international law. More here.

The latest volume (Volume 4) of the Ius Comparatum series, which includes the general reports as well as the national and special reports from the General Congresses and Thematic Congresses of the International Academy of Comparative Law, along with other publications related to the Academy’s activities, has been published. This volume focuses on the Localization of Damage in Private International Law, edited by Prof. Olivera Boskovic (Université Paris Cité).

The book addresses the complex issue of the localization of damage in private international law, a challenge that has long puzzled legal scholars and practitioners. This comparative work brings together contributions from different jurisdictions to address the many issues raised, as outlined in the book’s blurb below:

 

Localisation in private international law of torts is a notoriously difficult question. How do you localize financial or moral damage? What about latent damage? Should damage in the context of cyber-torts be localized differently? The great variety of tortious actions gives rise to endless difficulties ranging from banal situations involving material damage to climate change. Trying to find suitable solutions requires answering many difficult questions, such as the very definition of damage within the meaning of private international law rules, the influence of various considerations such as foreseeability, protection of the claimant, and the remedy sought. The contributions in this volume address these questions and more from the perspectives of 17 different countries, from Austria to Venezuela.

 

The table of content features the following contributions:

 

PART 1 – General Report

La Localisation du Dommage en Droit International Prive?, Rapport Général 3

Olivera Boskovic

 

PART 2 – National Reports

Austria 71

Florian Heindler

Canada (common law) 96

Joost Blom

China 134

Zhengxin Huo and Zheng Sophia Tang

Colombia 147

Daniel Rojas-Tamayo

Czech Republic 160

Monika Pauknerová and Magdalena Pfeiffer

France 190

Par Ludovic Pailler

Germany 213

Wolfgang Wurmnest and Benedikt Wössner

Hungary 260

Tamás Szabados

Italy 275

Angelo Davì

Japan 334

Naoshi Takasugi

Poland 361

Micha? Wojewoda and Marcin Kostwi?ski

Romania 388

Serban-Alexandru St?nescu, Teodora-Maria Bantas-V?duva and Ana-Maria Dimofte

Quebec 423

Naivi Chikoc Barreda

Turkey 452

Cemile Demir Gökyayla and Candan Yasan Tepeta?

United Kingdom 476

Sirko Harder

United States 515

Patrick J. Borchers

Venezuela 530

Claudia Madrid Martíne

On Thursday, January 23, 2025, at 5 pm, the Société de législation comparée will present the Box Set Le droit étranger – Études de droit international privé comparé. The event will take place in 28 rue Saint-Guillaume – Amphitheater, 1st floor, 75007 Paris. Everybody is welcome to attend.

On the Box Set: Over the past ten years, the Société de législation comparée has conducted a series of collective studies on the theoretical, methodological, and practical issues related to accessing, understanding, and implementing foreign law. These issues are highly relevant today. Foreign law is playing an increasingly significant role in practice—not only for judges, of course, but also for other practitioners such as notaries, civil registrars, and lawyers. In France and elsewhere, when judges, notaries, or civil registrars are required to apply foreign law, understanding and implementing an unfamiliar legal system present numerous challenges. These challenges are even more daunting given that the treatment of foreign law retains a profoundly national dimension, despite the growing unification of conflict-of-law rules in Europe and in Americas.

The studies conducted by the Société de législation comparée aim to go beyond conventional analyses. By exploring the positive law of various countries and regions, they shed light on grey areas, shortcomings, and contradictions — abundant in what constitutes the very essence of Private International Law. Now gathered in a single volume they provide academics and practitioners with a comprehensive overview of the reflections carried out by jurists from diverse backgrounds on the most pressing issues in this often-neglected area of conflict of laws, along with their proposals to ensure the most accurate establishment of foreign law content.

The texts were compiled by Gustavo Cerqueira, professor at Université Côte d’Azur, and Nicolas Nord, Secretary General of the International Commission on Civil Status.

by Arvin LUO Fuzhong, Doctoral Candidate at Tsinghua University, Visiting Research Associate at HKU, LL.M. (Cornell), Bachelor of Laws (ZUEL).*

The doctrine of forum non conveniens is an important principle in civil procedure laws and frequently applied by courts in many legal systems, especially those of common law countries. According to this principle, when courts exercise their discretionary power to determine whether to exercise jurisdiction over the factual circumstances of a case, they primarily consider issues of efficiency and fairness to find the most appropriate forum to settle the dispute. If the acceptance of a case would lead to inefficient outcomes and consequences that are contrary to justice, the court may refuse to exercise jurisdiction on the grounds that it is not the appropriate forum.

Unrealized by many international scholars and practitioners,[1] China has been adopting (formally or informally) the doctrine of forum non conveniens for more than 30 years, first through a few court judgments, then provided in judicial interpretations issued by the Supreme People’s Court of PRC (“SPC”), which is binding for all Chinese courts, and finalized in the 2024 Civil Procedure Law of PRC. This article introduces the history of Chinese law adopting the doctrine of forum non conveniens in the past years, and the development of China’s law revision in 2023.

I. Judicial Practice Before Legislation or Judicial Interpretation

Chinese courts first applied the doctrine of forum non conveniens in a series of cases in the 1990s. For instance, in Jiahua International Limited, Ruixiang Limited v. Yongqiao Enterprise Limited, Zhongqiao National Goods Investment in 1995,[2] the SPC deemed it inappropriate for the original trial court to accept the case, though the connection factors are sufficient to establish jurisdiction, solely based on the appellants having representative offices and attachable property in the court’s location, thus dismissing the two plaintiffs’ lawsuits against the two defendants. Furthermore, in the case of Sumitomo Bank v. Xinhua Real Estate Limited in 1999,[3] the Supreme People’s Court explicitly applied the doctrine of forum non conveniens as a stand rule for the first time, though lacking any provision in Chinese laws back then: since both parties to the case were legal persons registered in Hong Kong, the place of signing and performance of the involved agreement was in Hong Kong, and the parties chose Hong Kong law as the governing law for the agreement, the Supreme People’s Court, considering the convenience of litigation, ruled that it was more appropriate for the Hong Kong court to have jurisdiction, and the Guangdong Provincial Higher People’s Court should not accept the case.

From these two early judicial practices, it can be seen that the courts correctly focused on whether the court was “appropriate” or suitable to accept the case, just as many foreign courts did, and seeing the “convenience” requirement in the doctrine of forum non conveniens as only one side of the coin. However, later legislation and academics misunderstood forum non conveniens, many Chinese scholars and practitioners did not realize the point is to determine whether the court is “appropriate” for the case mainly because of its name contains “conveniens”, but saw it as a tool to find whether other courts will be more “convenient” or economically efficient for the courts, ignored the fairness and justice requirements in this doctrine.[4]

II. Judicial Interpretations issued by the Supreme People’s Court of PRC

In Article 11 of the 2005 Minutes of the Second National Foreign-related Commercial and Maritime Trial Work Conference,[5] SPC provided seven conditions for applying forum non conveniens, focusing on whether the Chinese court would face “significant difficulties in determining facts and applying laws” and whether a foreign court would be more “convenient” for the trial. In 2014, the SPC issued the Interpretations of the Supreme People’s Court on the Application of the Civil Procedure Law of the PRC,[6] which outlined six conditions for applying forum non conveniens in Article 532,[7] essentially consistent with Article 11 of the 2005 Minutes, still focusing on the convenience of the court in hearing the case rather than its appropriateness.

Such a provision on forum non conveniens caused four problems in practice.

First, based on the provisions of Article 532(4) of the 2014 Interpretations, once a case involves the interests of the Chinese state, citizens, legal persons, or other organizations, the court will rule to exercise jurisdiction over the case. The court over-applies this clause to justify its jurisdiction, without comparing the appropriateness (sometimes even nor the convenience) of Chinese courts with foreign courts, and even if the parties to the case are Chinese nationals or the facts are connected to China, the court tends to rule that it has jurisdiction over the case.

Secondly, due to the lack of clear explanation of the term “convenience” in the 2014 Interpretations, the court’s standards were vague when interpreting and applying forum non conveniens. There are cases where the court arbitrarily determines that it is “inconvenient” to hear the case because the applicable law is foreign law and the facts of the case occurred abroad, thus rejecting jurisdiction.[8] This approach not only fails to argue the appropriateness of foreign court jurisdiction but also unduly restricts one’s own jurisdiction. Different courts may apply this provision with a scope of discretion either too broad or way too narrow , hence failing to achieve the legislative purpose of “having the most appropriate court exercise jurisdiction”.

Thirdly, no matter whether in common law jurisdictions or civil law jurisdictions, when applying the doctrines of forum non conveniens or lis pendens, the foreign courts upholding the jurisdiction is an important consideration for domestic courts to reject the exercise of one’s own jurisdiction. However, Chinese courts have repeatedly exercised jurisdiction over cases even when foreign courts have already taken the cases or even delivered judgments, causing parallel litigation and multiple judgments.[9]

Finally, when the legal requirements in Article 532 of the 2014 Interpretations is met, the absolute rejection of the lawsuit is too rigid and inflexible , leaving no room for the court’s discretion in different cases. If the foreign court refuses to exercise jurisdiction, the parties who were rejected by Chinese courts must re-file the lawsuits, which may lead to an increase in costs and a significantly delay of justice.

III. The Development in the 2024 Civil Procedure Law of PRC

In response to the problems in practice, the Civil Procedure Law of the PRC which came into effect on 1 January 2024, introduced forum non conveniens in Articles 281 and 282.[10] Article 281 is about to find the more convenient court to hear the case, and Article 282 proposes five conditions for the application of forum non conveniens, which to some extent resolves the previous practical dilemmas and responds to the criticisms from the academia.

First, Article 282(1) of the 2024 Civil Procedure Law of PRC restricts the determination of “convenience” to cases where “it is evidently inconvenient for a people’s court to try the case and for a party to participate in legal proceedings since basic facts of disputes in the case do not occur within the territory of the People’s Republic of China”, avoiding the situation where courts determine that the doctrine of forum non conveniens should be applied merely because the parties agree to apply foreign law or there is evidence situated or disputes occurred abroad, thereby excessively narrowing jurisdiction.

Secondly, the new law deleted the over-broad exclusion standard in Article 532 (4) of the 2014 Interpretations by stating that “the national interest, or the interest of any citizen, legal person or any other organization of the People’s Republic of China”, instead, Article 282 (4) provides that “not involving the sovereignty, security, or public interest of the People’s Republic of China”, avoiding the situation where Chinese courts exercise jurisdiction merely because the parties are of Chinese nationality or the case facts are connected with China, and narrowing the exclusion from vague “national interest” to clearer “national sovereignty, security, or public interest”, thus better balancing the “fairness” requirements within the doctrine of forum non conveniens.

Lastly, Article 282 paragraph 2 adds that after the Chinese court applied the forum non conveniens exception to dismiss the action, if the foreign court refuses to exercise jurisdiction or does not take necessary measures to hear the case or does not conclude the case within a reasonable period, the Chinese court shall accept the case, safeguarding the procedural rights of the parties. This new provision resolves the problem reflected in Article 532 of the 2014 Interpretations and relevant practice where the party can only start over the action before the people’s court.

IV. Conclusion

Generally speaking, the 2024 Civil Procedure Law of PRC represents a successful improvement, it shows the balance of fairness and convenience in the new rules and serves the requirements of forum non conveniens. However, it still has room for further refinement to align more closely with the original intent of forum non conveniens.

On the one hand, in most common law jurisdictions, the fairness requirement of finding the most appropriate forum also includes the potential for oppressive or vexatious litigation, abuse of judicial process, or “real injustice” to the parties if the case is heard by the domestic court, rather than public interest provided in Article 282(4). A better approach seeks to identify the most appropriate forum for achieving justice in every single case.

On the other hand, due to the misunderstanding of finding the most “convenient” forum, even though Articles 281 and 282 consider both convenience and fairness requirements, they fail to synthesize these aspects into a single requirement of “appropriateness”. This leads to a fragmented consideration of “convenience” and “fairness” by the courts when applying the provisions, rather than understanding them as two sides of the same coin in the service of finding the most appropriate forum.

 

* Arvin LUO Fuzhong, Doctoral Candidate at Tsinghua University, Visiting Research Associate at HKU, LL.M. (Cornell), Bachelor of Laws (ZUEL). The author can be contacted via [arvinluo@outlook.com]. I extend the gratitude to Prof. Dr. Dr. CHEN Weizuo from Tsinghua University for his insightful observation regarding the misconception surrounding forum non conveniens in Chinese legislation, Prof. Dr. Matthias Weller and Prof. Dr. iur. Matthias Lehmann for their extraordinary lectures in the Hague Courses in Hong Kong and their guidance for me to draft this essay, and Mr. Achim Czubaiko for his detailed and thorough advice.

[1] The latest article regarding the forum non conveniens in Chinese law is published in 2024, gave a description of the development from judicial practice to legal provisions, but lacked theoretical analysis and comment on the reasons and consequences of the transformation of such development. Before that, only 2 articles were devoted to the practice of forum non conveniens in China until 2014. See Liang Zhao, Forum Non Conveniens in China: From Judicial Practice to Law, 11 The Chinese Journal of Comparative Law 1 (2024); Chenglin Liu, Escaping Liability via Forum Non Conveniens: ConocoPhillips’s Oil Spill in China, 17 U. PA. J.L. & Soc. CHANGE 137 (2014); Courtney L. Gould, China as a Suitable Alternative Forum in a Forum Non Conveniens Motion, 3 TSINGHUA CHINA L. REV. 59 (Fall 2010).

[2] Supreme People’s Court (1995) Jing Zhong Zi No. 138 Civil Ruling.

[3] Supreme People’s Court (1999) Jing Zhong Zi No. 194 Civil Ruling.

[4] Chinese theories and laws translated forum non conveniens as “Bu Fang Bian Fa Yuan”, which means “a court that is not convenient to settle the dispute”. Prof. Dr. Dr. CHEN Weizuo insists that it should be named as “Fei Shi Dang Fa Yuan”, which means “a court that is not appropriate to settle the dispute”.

[5] Fa Fa [2025] No. 26.

[6] Fa Shi [2015] No. 5.

[7] The number of which later changed to Article 530 after the judicial interpretation was revised in 2022, but the content remained unchanged. Article 532 stipulated that: “Where a foreign-related civil case falls under all the following circumstances, the people’s court may render a ruling to dismiss the plaintiff’s action, and inform the plaintiff to institute an action in a more convenient foreign court. (1) The defendant raises a claim that the case shall be subject to the jurisdiction of a more convenient foreign court, or raises an objection to jurisdiction. (2) The parties do not have an agreement specifying the jurisdiction of a court of the People’s Republic of China. (3) The case does not fall under the exclusive jurisdiction of a court of the People’s Republic of China. (4) The case does not involve the national interest, or the interest of any citizen, legal person or any other organization of the People’s Republic of China. (5) The people’s court has great difficulties in the determination of facts and the application of laws since major facts of disputes in a case do not occur within the territory of the People’s Republic of China, and the laws of the People’s Republic of China do not apply to the case. (6) The foreign court has jurisdiction over the case and it is more convenient for it to try the case.”

[8] Schott Solar Holdings Ltd. v. Schott Solar Investment Ltd., Shanghai No. 1 Intermediate People’s Court Civil (Commercial) First Instance No. S17, 2014.

[9] See e.g. Chen Huanbin et al. v. Chen Weibin et al., Beijing Second Intermediate People’s Court (2015) Civil (Commercial) Final No. 6718; Value Financial Services Ltd. v. Century Venture Ltd.& Beijing De Shi Law Firm, Supreme People’ Court (2014) Civil Final No. 29.

[10]  Article 281 provides that: “After a people’s court accepts a case in accordance with the provisions of the preceding article, if a party applies to the people’s court in writing for suspending the proceedings on the ground that the foreign court has accepted the case prior to the people’s court, the people’s court may render a ruling to suspend the proceedings, except under any of the following circumstances: (1) The parties, by an agreement, choose a people’s court to exercise jurisdiction, or the dispute is subject to the exclusive jurisdiction of a people’s court. (2) It is evidently more convenient for a people’s court to try the case.

If a foreign court fails to take necessary measures to try the case or fails to conclude the case within a reasonable time limit, the people’s court shall resume proceedings upon the written application of the party.

If an effective judgment or ruling rendered by a foreign court has been recognized, in whole or in part, by a people’s court, and the party institutes an action against the recognized part in the people’s court, the people’s court shall rule not to accept the action, or render a ruling to dismiss the action if the action has been accepted.”

 

Article 282 provides that: “Where the defendant raises any objection to jurisdiction concerning a foreign-related civil case accepted by a people’s court under all the following circumstances, the people’s court may rule to dismiss the action and inform the plaintiff to institute an action in a more convenient foreign court: (1) It is evidently inconvenient for a people’s court to try the case and for a party to participate in legal proceedings since basic facts of disputes in the case do not occur within the territory of the People’s Republic of China. (2) The parties do not have an agreement choosing a people’s court to exercise jurisdiction. (3) The case does not fall under the exclusive jurisdiction of a people’s court. (4) The case does not involve the sovereignty, security, or public interest of the People’s Republic of China. (5) It is more convenient for a foreign court to try the case.

If a party institutes a new action in a people’s court since the foreign court refuses to exercise jurisdiction over the dispute, fails to take necessary measures to try the case, or fails to conclude the case within a reasonable period after a people’s court renders a ruling to dismiss the action, the people’s court shall accept the action.”

Help draft a white paper on Addressing Conflict of Laws and Facilitating Digital Product Passports (DPPs) in Cross-border Value Chains to achieve legal coordination and establish traceability in global trade law. The White Paper aims to be published by the United Nations Centre for Trade Facilitation and Electronic Business (UN/CEFACT), which is a subsidiary, intergovernmental body of the United Nations Economic Commission for Europe (UNECE) and serves as a focal point within the United Nations Economic and Social Council for trade facilitation recommendations and electronic business standards.

Aligned with regional and global initiatives, the White Paper seeks to address conflict of laws and foster legal harmonization essential for the implementation of DPPs across borders. The white paper will also ensure that DPPs comply with international standards, promoting interoperability and supporting a globally consistent approach. It will focus on the critical raw materials to EV batteries value chain, but will have broad implications on other industries.

The proposed White Paper will (1) present the status quo of conflict of laws in existing national and international laws relating to the implementation of DPPs, and (2) propose solutions for legal coordination and facilitate trade, especially:

 

1. Analyzing initial uptake of DPPs by industry stakeholders and anticipated impact;
2. Coordinating diversified national laws for cross-border data transfer involved in DPPs;
3. Obtaining mutual recognition of ESG certificates whose data are required by DPPs;
4. Promoting Interoperability between different DPPs; and
5. Incorporating the UN Transparency Protocol and other UN/CEFACT industry standards/good practices into international and national trade laws to address legal conflicts in the adoption of DPPs.

In your EOI, please provide your name/position/association/email contact, indicate your expertise, and choose the ways to participate (multiple choice):

1. Participate as an active contributor in the working group to draft the White Paper (The group will typically have a one-hour meeting every two-three weeks from January to May 2025),
2. Participate as an observer in the working group to draft the White Paper,
3. Participate in research interviews, and
4. Any other ways that you think you can contribute.

Please refer for UN/CEFACT Critical Raw Materials project website (Get involved with the White Paper)

This is not a paid job.

Deadline to express your EOI is Friday 17 January 2025. Please email your EOI to the project lead Dr. Jie (Jeanne) Huang (Jeanne.huang@sydney.edu.au) and forward your email to her research assistant Raven Yang (raven.yang@sydney.edu.au).

The American Branch of the International Law Association (“ABILA” or “the Branch”) seeks a dynamic individual with superb organizational and people skills and an interest in international law for the position of Chief Operating Officer (COO).  This part-time position will require approximately 80 hours/month, 20 hours/week on average. Workload will fluctuate throughout the year, peaking in late summer and fall during preparations for the Branch’s flagship event, International Law Weekend (ILW). Compensation is $26/hour, equivalent to approximately $26,000/year. Application deadline: January 15, 2025. See more here.

From 2 to 6 December 2024, the second edition of The Hague Academy of International Law’s Advanced Course in Hong Kong was held, co-organised by the Asian Academy of International Law (AAIL) with the support of the Department of Justice of the Government of the Hong Kong SAR. Once again, the Hague Academy of International Law brought distinguished speakers to the “fragrant harbour” to deliver lectures on the “Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters”. Just a stone’s throw from the Old Supreme Court Building (now the seat of Hong Kong’s Court of Final Appeal) at the premises of the Hong Kong Club, legal scholars, national judges, government officials and legal practitioners from over 20 jurisdictions as diverse as Laos, the People’s Republic of China, (francophone) Cameroon, The Netherlands, South Africa or the Kingdom of Saudi Arabia came together to discuss their respective experiences and the prospects of the latest instrument in this field, the HCCH 2019 Judgments Convention.

Following the opening remarks (Jean-Marc Thouvenin, Secretary-General of The Hague Academy of International Law and Lam Ting-kwok Paul, Secretary for Justice of the Government of the Hong Kong SAR), Teresa Cheng (Founding Member and Co-Chairwoman of the AAIL) proceeded to give the opening lecture on the recognition and enforcement of foreign judgments in the Hong Kong SAR.

 

In the afternoon, Pietro Franzina (Catholic University of Milan) focused on “Contemporary Approaches to the Recognition and Enforcement of Foreign Judgments”. As part of a comparative overview, he developed a taxonomy of the legal frameworks for recognition and enforcement based on their operational context (simple/double instruments), their legal sources (unilateral-domestic, international, regional/supranational) and the type of decisions they are concerned with (final and conclusive judgments with res judicata effect, decisions on situations with an evolving character). He particularly emphasised that international as well as regional rules are fragmentary in nature. Hence, despite their designation, treaties such as the HCCH 2019 Judgments Convention do not actually set out rules for the enforcement of decisions, but rather determine the criteria for the enforceability of a judgment, which must then be carried out according to the applicable rules of domestic law. Building on this foundation, Franzina’s second lecture on Thursday morning explored the doctrinal puzzle the HCCH 2019 Judgments Convention presents with respect to “Preliminary Questions Outside the Scope and Judgments Consisting of Severable Parts”. Drawing on the notion of “complex judgments”, he masterfully illustrated the carefully drafted solutions the Convention offers to address borderline cases, but also the unavoidable gaps that nonetheless exist in this regard. The lecture culminated in a lively discussion regarding the ground of refusal for judgments on exemplary or punitive damages (Art. 10), which – according to Franzina – was designed not primarily with civil law systems in mind, but rather for common law jurisdictions, who were assumed to have difficulties in asserting the public policy exception (Art. 7 (1) lit. c)) against corresponding foreign judgments, due to the existence of comparable legal institutions in their own systems.

At Tuesday morning, Giuditta Cordero-Moss (University of Oslo) started her lecture on precisely on this topic: “Public Policy as a Limit to Enforcement and Recognition”. While reminding the audience of the importance of an autonomous interpretation (Art. 20) in line with the principles enshrined in the Vienna Convention on the Law of Treaties (VCLT), she presented the public policy exception as part of one important line of development within (see Art. 2 HCCH 1958 until Art. 22 HCCH 2007) and outside (e.g. Art. 34 Lugano 2007) the HCCH ecosystem. With particular focus on the parallels to the New York Convention, she raised the question of the appropriate intensity of public policy control. Under the former instrument, at least two levels of scrutiny have emerged: A “maximalist” theory, according to which the court assesses the matter de novo (e.g. Westacre Investments v. Jugoimport-SDPR Holdings, [1999] 3 All ER 864 , 885), and a “minimalist” theory, according to which a “manifest” breach can – in deference to the arbitral tribunal’s evaluation – only be reviewed to the extent that the issue has not yet been discussed by the tribunal itself (e.g. CA Paris, 18 novembre 2004, Thalès Air Defence, Rev arb. 2005 751). Later, Cordero-Moss turned to the perceived overlaps with other provisions of the Convention. Most significantly, the public policy exception can be combined with the other defences set forth in Art. 7 HCCH 2019 Judgments Convention in order to meet the threshold of “manifest incompatibility” with the essential policies of the requested State. Surprisingly, this reasoning according to the Explanatory Report does not apply to punitive damages exception in Art. 10 (Garcimartín/Saumier, paras. 265). The excellent and remarkably insightful presentation concluded on Wednesday afternoon with a discussion of pertinent substantive cases in the areas of competition, corporate and labour law. Among other things, the speaker discussed the complex case of the English “floating charge”, which allows for a security right in rem that is not attached to assets before it is “crystallised” at a specified future event, and thus could conflict with the numerus clausus principle of property rights, as found in many civil law jurisdictions.

Then, Shen Hongyu (Chief Judge of the Supreme People’s Court) dedicated her part of the course on “Unfolding the 2019 Hague Convention” to share “China’s Perspective on International Recognition and Enforcement”. Her remarks offered important insights into the drafting process of both, the recent amendments to the Chinese Civil Procedure Law and the new Law of the People’s Republic of China (PRC) on Foreign State Immunity (1 September 2023). As reported before on col.net, the latter provides for a fundamental shift in China’s stance towards the immunity of foreign States, moving from an absolute position to the adoption of a more restrictive approach. Presumably, this step is not unconnected to China’s endeavour to widen its economic influence via the Belt and Road Initiative. Furthermore, Judge Shen shed some light on the very peculiar approach to indirect jurisdiction in Art. 301 Civil Procedure Law (2023). By referring this question, on a first level, to the lex fori of the court of origin, China’s recognition rules at first appear to place a great deal of trust  in foreign law (though not so much in the originating court’s application of that law), only to then implement a second level of control by requiring the foreign court to have an “appropriate connection with the case” according to standards ultimately set by the requested court, explicitly including the violation of an exclusive choice of court agreement and the provisions of exclusive jurisdiction of the PRC. Thanks to Judge Shen’s well-founded explanations, it  became clear that the emergence of this rather complicated solution, which might be called “(modified) double control”,[1] was the result of a compromise between the proponents of a pure “mirror principle” and a simple “foreign law” approach. In this way, the new law, whilst being generally open to foreign law, is at the same time supposed to effectively prevent foreign courts from abusing their jurisdiction through “long-arm” statutes. Finally, the Supreme Court Judge also expressed the view that, if China were to become a party to the HCCH 2019 Judgments Convention, it would most likely utilise the option granted under Art. 17 to exclude from its material scope all matters for which it currently claims exclusive jurisdiction (see Art. 279 Civil Procedure Law), including disputes concerning some specific Sino-foreign joint venture contracts.

 

 

As a special treat for all participants, Matthias Lehmann (University of Vienna) gave two highly anticipated afternoon lectures on “Crypto Currency and International Law”. Despite the short time frame on Tuesday and Wednesday, he nonetheless expertly managed to explain the complex technical structures underlying and characterising the blockchain, as well as the resulting legal implications. Since all the nodes constituting the blockchain network are spread across different places around the world, digital assets based on this technology (such as Bitcoin or Ether) can hardly be localised in just a single place. While courts and legislators in several jurisdictions have taken on the challenge this decentralised structure is posing for the traditional mechanisms of Private International Law (e.g. Cheong Jun Yoong v Three Arrows Capital Ltd, (2024) SGHC 21), Lehmann, in a more radical approach, proposed to take the results of the innovative technology more seriously. Since the transfers recorded in the blockchain cannot be undone, the distribution of assets provided for by the technology should be presumed to be legitimate. In essence, this suggestion represents what in a legal context could also be understood as a uniform international rule of property law. However, as it is the case with real property, this does not mean that transfers according to that rule are necessary final. Rather, where it can be shown that the digital asset has been acquired illegally, the presumption is rebutted, and the traditional (conflict of laws) rules apply.

On Wednesday and Friday, the author of these lines added with two lectures on “The Jurisdictional Filters”. Positioned at the “heart” of the Convention in terms of function and policy, the positive requirements set forth in Arts. 5 and 6 HCCH 2019 Judgments Convention are intended to filter out decisions based on unacceptable assumptions of direct jurisdictions by the courts of the State of origin. After a short introduction to the general concept of indirect jurisdiction, as (first?) described by Etienne Bartin, there was a brief tour d’horizon of various approaches towards the standards of indirect jurisdiction, including general clauses (e.g. Canada’s “real and substantial connection” test), negative lists enumerating exorbitant grounds of indirect jurisdiction (e.g. Greek-German Agreement of 4 November 1961), the “mirror principle” (e.g. Spain’s Art. 46 de Ley de Cooperación Jurídica Internacional) or of course section 328 (1) no. 1 German Code of Civil Procedure – the mirror principle seems to be a “German” invention by Paul Johann Anselm Feuerbach in 1812) as well as the peculiar “(modified) double control” (see above for Art. 301 PRC Civil Procedure Law) or the (unsuccessful) proposal of a mixed convention, as developed by Arthur von Mehren (e.g. HCCH 1999 Draft of a Judgments Convention). This first lecture concluded with a discussion of elements common to all filters with practical relevance, inter alia, burden and standards of proof, as well as the admissibility of anti-enforcement injunctions based on a “better” interpretation of the Convention, the impact of the arbitration exception in Art. 2 (3) HCCH 2019 Judgments Convention or the role, if any, for anti-enforcement injunctions. On this basis, the second lecture approached the somewhat more than 20 jurisdictional filters and their modifications respectively, depending on the manner of counting, as provided for in the Convention. For this task, it appeared reasonable to distinguish between five groups of filters: 1. Personal connections of the defendant; 2. Forms of consent; 3. Connections of the subject matter; 4. Modifications for the protection of weaker parties; 5. Exclusive Filters. For the purpose of highlighting the pits and downfalls of each jurisdictional filter, the presentation was structured around short hypothetical case illustrations, which were actively discussed with the participants. For example, under Art. 5 (1) lit. d) it is not sufficient, that the branch from which the claim in dispute arose existed at that time, but not anymore when the proceedings where instituted in the court of origin. Furthermore, in light of Switzerland’s recent declaration to apply the HCCH 2005 Choice of Court Convention likewise to non-exclusive forum selection agreements, the precise delineation of the two instruments, as originally envisaged in Art. 5 (1) lit. m), might soon gain significantly more importance. Last but not least, a special emphasis was placed on “false friends” provisions that may look familiar to the legal practitioner from his/her own law, while in fact differing in detail. For instance, Art. 5 (1) lit. a) foresees jurisdiction at the place of the habitual residence of the “person against whom recognition or enforcement is sought”, while Art. 22 PRC Civil Procedure law is limited to the “defendant” in the original proceedings.

 

Besides the lectures, the Course’s unofficial theme became somewhat of an “autograph session”. Following a spontaneous idea on making use of “the book” (the only available copy at that time) that had emerged from the HCCH/University of Bonn Conference on the HCCH 2019 Judgments Convention in 20023, all attendees here were again invited to sign a “commemorative copy”, this time the “Hong Kong edition”, thereby following the “Bonn edition”, and we of course hope that further editions might follow. We were happy to see that the trend was catching on, as Judge Shen joined in by inviting the audience to autograph a copy of  the “Annotated International Commercial Cases from the Supreme People’s Court”. Even more professionally, admittedly, there was even a prize awarded for the tenth person (a fortunate number in Chinese numerology, as it seems) putting his or her signature in the collection of cases.

 

Coming full circle, Teresa Cheng delivered the programme’s final presentation on “Arts. 22 and 25 of the HCCH Judgment Convention” focussing on the Mutual Arrangements between the Mainland and the Hong Kong SAR. Based on Art. 95 of the Hong Kong Basic Law, there are several legal frameworks in place that have drawn inspiration from the HCCH Conventions. Although Cheng expressed some doubts about the application of the notion of “territorial units” to Hong Kong, she was ultimately certain that these regional frameworks would remain unaffected by virtue of Art. 22 HCCH 2019 Judgments Convention. This is, of course, subject to ratification by the PRC and extension of its effect to the Hong Kong SAR in accordance with Art. 25 of the 2019 HCCH Judgments Convention. As alluded to in the opening lecture, China’s special situation as a bi-jural legal system, with the Hong Kong SAR as the common law counterpart to civil law based legal system of the People’s Republic of China, lends itself to some legal innovations naturally arising from this coexistence. For example, Art. 4 of the recent Arrangement on Reciprocal Recognition and Enforcement of Judgments in Civil and Commercial Matters specifically excludes anti-suit injunctions from its scope. Likewise, Art. 3 (8) of the same legal framework wisely addresses “cases on the recognition and enforcement of judgments or arbitral awards of other countries or regions”, and thus excludes from its scope decisions that simply merge foreign judgments or arbitral awards into a domestic title according to the English doctrine of obligation. Especially the latter point could serve as a reasonable starting point for correcting the effects of the CJEU judgment in J. v. H. Limited as part of the upcoming reform of the Brussels Ibis-Regulation within the European Union.

On Friday afternoon, the last day of the programme, the participants received their certificates, and, after an academically exciting but of course also demanding week, rewarded with a closing reception featuring not only drinks and food but also inspiring views of Hong Kong’s Victoria Harbour.

 

[1] In their joint essay, Shen/Guo Zaiyu, “Review and Interpretation of the Amended Provisions of the Foreign Part in the Civil Procedure Law”, China Law Review 2023-06, pp. 70-80, prefer to speak of a model of “two-way combination” or a “hybrid approach”, for the English text see https://mp.weixin.qq.com/s/n0iLTtkvEPfwwg8xWs6sJQ https://www.chinajusticeobserver.com/a/thus-spoke-chinese-judges-on-international-civil-jurisdiction and for the Chinese version https://mp.weixin.qq.com/s/n0iLTtkvEPfwwg8xWs6sJQ.

I. Introduction

It is not uncommon for scholars examining the interplay between the HCCH 1980 Child Abduction Convention and the legal systems of countries based on or influenced by Islamic Sharia to raise concerns about the compatibility of the values underlying both systems. While such concerns are not entirely unfounded and merit careful consideration, actual court practice can present a very different reality.

Morocco’s engagement with the Hague Conventions, notably the HCCH 1980 Child Abduction Convention and the HCCH 1996 Child Protection Convention, provides a particularly illustrative example. As previously reported on this blog (see here, here and here), Moroccan courts have thus far demonstrated a clear willingness to engage constructively with the HCCH instruments, effectively dispelling – at least to a significant extent – concerns about the existence of a so-called “Islamic exceptionalism” as an obstacle to resolving parental child abduction cases. The case presented here provides yet another compelling example of how Moroccan courts interpret and apply the HCCH 1980 Child Abduction Convention in a manner consistent with Morocco’s international obligations. This is particularly noteworthy given the presence of elements often cited as indicative of “Islamic exceptionalism.”

Although the Supreme Court’s ruling was issued over a year ago (Ruling No. 198 of 25 April 2023), it has only recently been made available, bringing the total number of Hague Convention cases to eight (based on my own count and the available information. For an outline of the other Hague Convention cases, see here). Its legal significance and broader implications therefore warrant special attention.

 

II. The facts

The case concerned a petition for a return order to Switzerland for a child (a girl, in casu) who had been wrongfully retained in Morocco by her father. Although the text of the decision lacks sufficient detail to fully clarify the circumstances of the case, it can be inferred from the Court’s summary of facts that the child was approximately 8 years old at the time Moroccan courts were seized and that the father is likely a Moroccan national. However, the ruling does not provide details regarding the nationality (or religion) of the left-behind mother nor does it specify the time frame within which the application was made.

As previously noted, the legal proceedings were initiated by the public prosecutor, who petitioned for the return of the child to her habitual residence in Switzerland under the HCCH 1980 Child Abduction Convention. The petition followed an official communication from the Ministry of Justice to the Office of the Public Prosecutor.

In response, the father contested the petition on two main grounds. First, he challenged the standing of the public prosecutor to initiate the proceedings, arguing that the petition should have been filed by the Ministry of Justice in its role of Central Authority under the Convention. Second, he invoked the child’s refusal to return to Switzerland, attributing her reluctance to emotional distress and physical abuse allegedly suffered while living with her mother. The father further asserted that the child had now settled into her new environment in Morocco, where she was continuing her education.

The Court of First Instance accepted the petition and ordered the return of the child to her habitual residence, a decision that was upheld on appeal. The father subsequently appealed to the Supreme Court.

Before the Supreme Court, the father reiterated his earlier arguments, particularly challenging the public prosecutor’s standing to initiate such proceedings. He further invoked Article 12 of the HCCH 1980 Child Abduction Convention, arguing that the child was now settled in her new familial and educational environment. In addition, he asserted that the child suffered from emotional distress and anxiety due to alleged domestic violence she experienced while living with her mother. The father referred to reports and certificates issued by Moroccan medical and psychological institutions which were submitted as evidence of the child’s state of mind and her strong resistance to being returned to Switzerland. The father also argued that the mother had not effectively exercised custody rights at the time the child came to live with him, and contended that the mother had consented to the child’s relocation.

 

III. The Ruling

In its Ruling No. 198 of 25 April 2023, the Moroccan Supreme Court rejected all the father’s arguments and upheld the order for the child’s return, providing the following reasoning:

Regarding the first argument, the Supreme Court referred to Article 11 of the HCCH 1980 Child Abduction Convention, which mandates contracting states to take urgent measures to secure the return of abducted children. The Court also cited Law No. 33.17, which transferred the Minister of Justice’s responsibilities to the Public Prosecutor at the Supreme Court, in its capacity as Head Public Prosecutor Office. This transfer enables the public prosecutor to replace the Ministry of Justice in overseeing judicial proceedings and exercising appeals related to the cases falling under their competence.

As for the second argument, the Supreme Court emphasized that determining whether the exception in Article 12 of the HCCH 1980 Child Abduction Convention applies is a matter for the trial court to investigate based on the evidence presented. Based on the lower courts’ finding, the Supreme Court concluded that the father’s retention of the child, who had been living with her mother in Switzerland, where the mother had been granted sole custody, constituted wrongful retention and a violation of the mother’s custody rights as stipulated by Swiss law. The Court also noted that the medical reports submitted did not provide evidence of mistreatment.

Finally, the Supreme Court found that the mother was actively exercising custody of her daughter, as confirmed by the Swiss court decision granting the appellant only visitation rights. The Court also dismissed the father’s claims, particularly those regarding the risk of physical or psychological harm to the child, finding them unconvincing and unsupported by sufficient evidence.

 

IV. Comments

The Supreme Court’s ruling is remarkable in many respects. It directly challenges the notion of “Islamic exceptionalism” in matters of custody and parental authority under the HCCH 1980 Child Abduction Convention. Under traditional interpretation of Islamic law, which underpins the Moroccan Family Code of 2004 – known as the Mudawwana – (notably article 163 to 186 on custody), the father’s right to exercise legal guardianship (wilaya) over the child is often seen as prevailing over the mother’s right to custody (hadanah). For instance, a mother may lose her custody rights if she relocates to a distant place, especially a forign country. Similarly, the environment in which the child is to be raised is considered a critical factor, with particular emphasis on whether the child will grow up in an Islamic environment. This concern is even more pronounced when the custodial mother is not Muslim and resides in a non-Muslim country (Cf. M. Loukili, “L’ordre public en droit international privé marocain de la famille” in N. Bernard-Maugiron and B. Dupret, Ordre public et droit musulman de la famille (Bruylant, 2012) 137, 155-157).

What is striking in this case is that the Supreme Court did not consider these “traditional” concerns at all. Instead, it focused solely on the legal framework established under the Hague Convention. The Court simply observed that the mother had been granted sole custody of the child and concluded that the wrongful retention of the child in Morocco constituted a violation of those rights. This finding justified the return order under the HCCH 1980 Child Abduction Convention.

Another noteworthy aspect of the ruling, which can also be observed in other Hague Convention cases, is that the Moroccan Supreme Court does not adhere rigidly to its traditional approach in assessing the admissibility of return orders requests or the revocation of the mother’s custody rights. Under Moroccan private international law, family law issues in general, including matters of parental authority and custody, are generally governed by Moroccan law whenever one of the parties is Moroccan (Article 2(3) of the 2004 Family Code). Traditionally, Moroccan courts have often concluded that public policy is violated when Moroccan law is not applied or a foreign judgment diverges from Moroccan domestic family law regulation (Loukili, op. cit., 150).

In the present case, however, the Supreme Court not only accepted that sole custody was granted to the mother under Swiss law, but also it did so although the application of Moroccan law would have led to a different outcome. Indeed, the Supreme Court has consistently ruled that the mother’s refusal to return with the children to Morocco deprived the father of his right to supervise and control the children under his legal guardianship (wilaya), thus justifying the father’s claim to have the mother’s custody rights revoked (Supreme Court, Ruling of 21 June 2011; Ruling of 23 August 2011). The Supreme Court took the same stance in a case involving child abduction, where the request for the return order, based on the French-Moroccan bilateral Convention of 1981 (article 25), was rejected on the ground that the issuing of such an order would contradict with Moroccan law on custody (Supreme Court, Ruling of 15 October 2003).

The Supreme Court’s approach in Hague Convention cases, including the one commented on here, marks a notable departure from this traditional stance. Not only has the Court repeatedly affirmed the primacy of international conventions over domestic law—though this issue was not explicitly raised before the Court in casu, it can be inferred from the absence of references to Moroccan law on custody—but it also approvingly referred to the law of the child’s habitual residence rather than Moroccan law, despite a literal reading of Article 2(3) of the Mudawwana suggesting otherwise.

The Supreme Court stance in dealing with the Hague Child Abduction cases reflects a growing willingness on the part of the Court to align its reasoning with international obligations and to prioritize the principles enshrined in the Hague Conventions over more restrictive domestic norms. In this sense, this approach challenges the perception of “Islamic exceptionalism” and highlights a progressive interpretation of Moroccan law within the framework of international child abduction cases.

The latest volume of the Yearbook of Private International Law has been recently published, marking the 25th anniversary of its significant contribution to outstanding legal scholarship in the field of comparative private international law.

Readers will undoubtedly appreciate the Editors’ Foreword as well as the insightful tributes dedicated to this milestone edition written by Professors Nadjma Yassari (A Quarter-Century of Excellence), Symeon C. Symeonides (A Tribute), and Ivana Kunda (Petar Šarcevic – The Intellectual Behind the Name). These contributions, which reflect on the Yearbook’s impact and achievements over the years, are freely available online, offering a fitting celebration of this remarkable anniversary.

 

The Yearbook’s latest volume features the following table of contents:

 

DOCTRINE

New Perspectives for the CIEC/ICCS and its Work

Hans Van Loon

 

Recent Developments of Japanese Laws on ADR – A Perspective of International Civil Procedure Law

Yasuhiro Okuda

 

From Past to Future – The Emergence and Development of Advance Choices

Adrian D. Ward

 

Child Marriages

Swedish Rules on Non-recognition of Foreign Child Marriages

Michael Bogdan

 

Early Marriage in Belgian Case Law – The Ever-Lasting Virtue of the Functional Approach of the Public Policy Exception

Marc Fallon and Stéphanie Francq

 

Early Marriages in German Law

Nadjma Yassari

 

Family Status, Identities and Private International Law

A Critical Assessment in the Light of Fundamental Rights

Elena C. Bargelli and Ilaria Pretelli

 

Reasonable Expectations of Unmarried Cohabitants

Guillaume Kessler

 

Recognition of Family Status and Same-Sex Partners – A Chinese Perspective

Yin Liu

 

Free Movement of Same-sex Spouses in the EU

Maria Caterina Baruffi

 

Lessons Drawn from the Commission’s Parenthood Proposal for Further EU Initiative on Personal Identity and Status Continuity

Johan Meeusen

 

The Recognition of Names Between EU Law and Human Rights Law – Recent Developments

Giulia Rossolillo

 

The ICCS’s Contribution to the Portability of Names

Nicolas Nord

 

Identity and Civil Status of Children Conceived through Cross-Border Procreation Contracts – Perspectives on Filiation and the Best Interests of the Child

Ilaria Pretelli

 

Digital Assets and Online Accounts

Digital Assets in English Private International Law

Uglješa Crusic

 

Online Accounts – Comparative and Private International Law Aspects

Nataliia Filatova-Bilous and Tetiana Tsuvina

 

Decisions on the European Succession Regulation in Comparative Perspective

The Application of the European Succession Regulation by the Courts of the Member States

Andrea Bonomi

 

Decisions on the European Succession Regulation in Austria

Matthäus Uitz

 

Decisions on the European Succession Regulation in Bulgaria

Stilyana Stavreva

 

Decisions on the European Succession Regulation in Croatia

Martina Drventic Barisin

 

Decisions on the European Succession Regulation in Cyprus

Konstantinos Rokas

 

Decisions on the European Succession Regulation in the Czech Republic

Magdalena Pfeiffer

 

Decisions on the European Succession Regulation in Germany

Jan Peter Schmidt and Leandra C.C. Koiike

 

Decisions on the European Succession Regulation in Greece

Konstantinos A. Rokas

 

Decisions on the European Succession Regulation in Hungary

Laura De Negri

 

Decisions on the European Succession Regulation in Italy

Giuseppe Mansour Agrelli

 

Decisions on the European Succession Regulation in Poland

Krzysztof Pacula

 

Decisions on the European Succession Regulation in Portugal

Afonso Patrão

 

Decisions on the European Succession Regulation in Slovakia

Elena Judova

 

Decisions on the European Succession Regulation in Slovenia

Neža Pogorelcnik Vogrinc and Filip Dougran

 

Decisions on the European Succession Regulation in Spain

María Gonzalez Marimon

 

Decisions on the European Succession Regulation in Sweden

Laima Vaige

 

National Reports

Surrogacy in Türkiye

Ceyda Sural Efecinar and Ba?ak Basoglu

 

Questions of Applicable Law as Regards Unpaid Wages of Turkish Employees under the Foreign Employment Contracts

Gülüm Bayraktaroglu-Ozcelik and Rifat Erten

 

Execution Measures Related to EU Procedural Regulations and Brussels IIbis in Bulgaria

Boriana Musseva and Nadia Rusinova

 

Forum

The Personal Relativity of Public Policy on Transnational Surrogacy in Switzerland – A Proposal

Lorène Anthonioz

 

Turkish Private International Law of Succession Revisited in the Light of the European Succession Regulation and Recent Developments in Swiss Law

Biset Sena Gunes

 

On 14 and 15 February 2025, the 5th iteration of the German Conference for Young Researchers in Private International Law will take place at the University of Heidelberg. The conference – which is being organized by Felix Berner, Andreas Engel, Aron Johanson, Markus Lieberknecht, Sophia Schwemmer, Ann-Kathrin Voß, Charlotte Wendland, and Anton Zimmermann –  is dedicated to the topic of ‘Digital transformation and Private International Law. Local connections in boundless spaces’:

After statute theory, Savignyan PIL and Europeanisation, digitalisation has the potential to initiate a fourth evolutionary stage in the history of conflict of laws, which is characterised by decentralisation and delocalisation. We may therefore be on the threshold of a PIL 4.0. At our conference, we would like to discuss how the conflict-of-laws problems arising from the boundless spaces of digitalisation can be solved in European and autonomous German, Austrian and Swiss private international law. At the same time, we would like to look at the possibilities for legal changes at national, European and international level.

A keynote will be given by Christiane Wendehorst (University of Vienna).

The programme can be found here; registration is possible here.

More information can also be found on the conference website.

Every two years, the ICC Institute of World Business Law awards a prize worth € 10,000 to the best doctoral dissertation or long essay on on international commercial law (including arbitration) written by an author under the age of 40 in English or French.

Submissions can be made until 7 April 2025.

More information can be found in the flyer and in the prize rules.

The inaugural conference of the Australasian Association of Private International Law will be held from Wednesday 16 to Thursday 17 April at the Ship Inn conference centre, Southbank, Brisbane, Queensland, Australia, sponsored by Griffith Law School.

We are pleased to invite the submission of paper proposals for the conference, on any aspect of private international law, broadly understood.  This includes issues of jurisdiction, choice of law, the recognition and enforcement of foreign judgments (including how they relate to cross-border issues within a federation), and all areas of private law that raise cross-border and transnational issues.

Paper proposals should be made on this form by Wednesday 29 January 2025. We also welcome panel proposals; please email aapril2025conference@gmail.com if you have a proposal for a panel. Proposed presenters on any panel will be required to submit paper proposals.

We welcome anyone interested in private international law, including from the judiciary, legal practice, government, and the academy, from any jurisdiction.  Attendees, including presenters, will be required to pay a registration fee. A conference dinner will be held on the evening of Wednesday 16 April, at an additional cost.

On Thursday 5 December 2024, a group of private international lawyers gathered in Melbourne and online for the launch of the Australasian Association of Private International Law (AAPrIL).

AAPrIL was founded in 2024 by lawyers and academics in Australia and New Zealand who are engaged in private international law. AAPrIL’s aim is to bring together people committed to furthering understanding of private international law in Australia, New Zealand and the Pacific region.

The launch was held at the offices of Corrs Chambers Westgarth in Melbourne. After networking and drinks, the formalities were opened by Cara North, Corrs Special Counsel and AAPrIL Treasurer, who would be known to many following the blog for her work on the HCCH Judgments Project. Cara introduced Jack Wass, New Zealand barrister and AAPRIL’s New Zealand Vice-President, who is co-author of The Conflict of Laws in New Zealand and who was Master of Ceremonies.

The event featured addresses from two of the most influential lawyers in private international law issues from either side of the Tasman Sea.

The Honourable Dr Andrew Bell, Chief Justice of New South Wales, gave a comprehensive pre-recorded address, speaking to the importance of the discipline and the growing number of judgments dealing with cross-border issues in Australia. His Honour has been deeply engaged in private international law for decades; he his author of Forum Shopping and Venue in Transnational Litigation and a co-author of Nygh’s Conflict of Laws in Australia, and acted as counsel in many of Australia’s most significant private international law cases until his appointment to the New South Wales Supreme Court.  Chief Justice Bell is the inaugural Patron of AAPrIL.

The Honourable David Goddard, Judge of the Court of Appeal of New Zealand, then delivered a live online address that also spoke to the importance of the discipline. His Honour advocated for the continued modernisation of domestic laws to harmonise approaches to private international law problems between legal systems, encouraging governments to adopt instruments of the Hague Conference on Private International Law (HCCH).  Justice Goddard is perfectly placed to speak to the subject: he was the Chair of the Diplomatic Session of the HCCH that adopted the 2019 HCCH Judgments Convention, Vice-President of the Diplomatic Session that adopted the 2005 Choice of Court Convention, and a member of the drafting committee for that Convention.

A highlight of the launch was the speech of Professor Mary Keyes of Griffith University in Brisbane, who is Inaugural President of AAPrIL. She has kindly shared the text of her remarks:

Speech by Professor Mary Keyes, AAPrIL President, at the Launch of the Association

Good evening, distinguished guests, friends and colleagues here with us tonight, as well as those joining us online.  I acknowledge the traditional custodians of these beautiful lands, to pay my respects to elders, past and present, and to first nations friends and colleagues.

On behalf of the Australasian Association of Private International Law, I would like to extend a very warm welcome to this important occasion at which we will formally launch the association. On behalf of the executive and the membership, thanks to Corrs Chambers Westgarth for generously hosting us this evening. Particular thanks are due to the wonderful Cara North, who is also the inaugural treasurer of our association, for making the arrangements for this evening, and to the team at Corrs.

I also acknowledge the other members of the AAPrIL executive, all of whom I am delighted to say are here in person. Our New Zealand Vice President, Jack Wass, from Wellington, has already introduced himself to you. I would also like to introduce our Australian Vice President, Dr Michael Douglas, from Western Australia, our secretary, Professor Reid Mortensen, my fellow Queenslander, and Associate Professor Maria Hook, from New Zealand and Professor Richard Garnett, a local from Melbourne, who also serve on our executive. They have each devoted a considerable amount of their time, energy and expertise to the association and I am deeply grateful to each of them.

I would like especially to thank Reid, for his initiative and drive which were instrumental in establishing AAPrIL in July this year. This is truly indicative of his dedication to the advancement of private international law in Australia and the region.

The members of the executive came together to discuss forming the association this year because of our mutual love of private international law. We also shared a conviction that there was a need, in this region, for an organisation with its sole focus on the advancement of our field.

Private international law only grows in importance with every passing year. It is interesting to reflect on the incredible changes over the last 40 years which have transformed this field in New Zealand and Australia.  That transformation is evident in the significant increase in the number of cases coming before our courts and the range of issues which arise in those cases. Long gone are the days when lawyers, courts and academics were obliged to rely heavily and sometimes exclusively on foreign authorities because of a lack of local cases, legislation and commentaries addressing particular issues in cross-border litigation.

Those of you who have already read our constitution – which is available on our website – will know that the objectives of the association include:

1. The promotion of knowledge of and interest in private international law within the region
2. The provision of a forum for sharing information and views about private international law
3. The promotion and support of lectures, seminars, colloquia and conferences in our field, and
4. Contributing to the development of private international law.

Australasia has a proud tradition of contributing to the development of private international law both practically and academically. The membership of our association includes many of the current leaders in private international law from our region, from the judiciary, the profession, and the academy.

I am very pleased to report that the association currently has more than 70 members from New Zealand, Australia, and much further afield, including from Greece, Hong Kong, the Netherlands, North Macedonia, Singapore, the United Kingdom, the United States, Uzbekistan and Vietnam. This is a clear indication of the breadth of interest in private international law in this region. I encourage you, if you have not already done so, to consider joining the association. There are at least three excellent reasons to do so. First, be honest, can you really say that you are involved in many other organisations with members drawn from such a diverse range of countries? Second, if that isn’t a sufficient inducement, then until July 2025, membership in the association is free. Third, what could be more fun than getting together with such an enthusiastic and fun group of private international law nerds?

Shortly, you will hear from two of our most eminent members, our patron, Chief Justice Andrew Bell of the New South Wales Supreme Court, and Justice David Goddard of the New Zealand Court of Appeal. Neither of them is able to join in person this evening but if there is one thing we have learned from the unfortunate experience of Covid 19, it is that technology is a great enabler of getting together even when circumstances prevent our doing so in person. The use of technology is critical for an organisation that has such a broad geographical reach.

Having said that, this launch is our first at least partly in person event. It is wonderful to see friends and colleagues here tonight and we look forward to many more such occasions. Since the association was established in July, we have held two online seminars, and we are working on our seminar program for 2025. We have also begun planning for our inaugural conference, which we hope will be an annual event. The call for papers will be made shortly. Our conference will be held in Brisbane in April 2025. We very much hope that we will see some of you there.

The executive is always keen to hear from current and potential members generally and specifically in terms of suggestions for events and activities. Please feel free to contact us at any time. We look forward to seeing you at our events and working with you as members of our association.

In addition to our other activities, our New Zealand Vice President has secured funding to support the development of an online Trans-Tasman Civil Proceedings Handbook, which will be available online and open access, through our website.

In conclusion, on behalf of the executive, thank you for your interest in and support of the association, and for your attendance this evening.

By Zixuan Yang, a PhD student at Max Planck Institute for Comparative and International Private Law in Hamburg, Germany.

The Conference on Private International Law and Sustainability Development in Asia was successfully held at Wuhan University School of Law on 23rd November 2024. This international symposium was organized by Wuhan University Academy of International Law and Global Governance, Wuhan University School of Law and China Society of Private International Law. Following a Call for Papers of the Chinese Journal of Transnational Law (CJTL), the symposium provided an ideal platform for participants to critically and constructively engage with the functions, methodologies and techniques of private international law in relation to sustainable development from the Asian perspective. Distinguished legal experts and scholars from Japan, India, Vietnam, Singapore, Hong Kong SAR, Macao SAR, Taiwan, Mainland China, Germany and the Netherlands delivered presentations and participated in discussions on-site and online.

After Professor Zheng Tang opened the conference, vice President of the China Law Society, President of the China Society of International Law and President of the China Society of Private International Law, offered a welcome. This was followed by a joint keynote speech from Professor Ralf Michaels (Max Planck Institute for Comparative and International Private Law, Hamburg), Verónica Ruiz Abou-Nigm (University of Edinburgh), and Hans van Loon (former Secretary-General of the Hague Conference on Private International Law) on Private International Law and SDGs 2030. Together with Zheng Tang, they will serve as special editors of an issue in CJTL that brings the papers together.

The Conference itself was divided into five panels.

The first panel on Family/Equality was chaired by Ralf Michaels. Prof. Rong-Chwan Chen (National Taipei University) elaborated on Taiwan’s Path toward gender equality in private international law in the light of the recognizability of three judgements involving same sex marriage in Taiwan, including the role of ordre public, renvoi and local household registration. Stellina Jolly and Prakriti Malla (South Asian University) raised several key questions regarding the incorporation of gender considerations into the Hague Convention on the Civil Aspects of International Child Abduction in view of international child abduction jurisprudence in India and Nepal.

The second panel on Migration was chaired by Hans van Loon. In light of the phenomena of intra-regional temporary migration in Asia, Prof. Yuko Nishitani (Kyoto University) addressed different methods of recognition to guarantee the continuity, stability and certainty of migrants’ name and family status.  Zixuan Yang (Max Planck Institute for Comparative and International Private Law) clarified the conceptual contexts of legal identity in Asian jurisdictions and discussed specific issues of  cross-border recognition of personal status in the Greater Bay Area.

Professor Ignacio de la Rasilla (Wuhan University) chaired the third panel on the Role of the State. Dr Ke Mu (Ocean University of China) analyzed the role of state-owned enterprise in international commercial and investment activities and raised the question whether the commitment to sustainability could be equivalent to the sovereign function. Mr Zihao Fan (Peking University) explored the roles of cities in transnational access to justice and the sustainable value through the systematic design of mainland China’s foreign-related jurisdictional regime as well as its special jurisdictional rules on cities’ level. Finally, Mr Jiabao Zhou (University of Amsterdam) suggested a potential role of private international law in the implementation of China’s foreign policy under China’s Foreign Relations Law, which arguably involves sustainable development as an essential value.

The fourth panel, chaired by Verónica Ruiz Abou-Nigm, focused on Environment/Climate Change. Profs. Adeline Chong and Stefanie Schacherer (Singapore Management University) gave a comprehensive and systematic analyses of the private international law issues in the regional legal framework for governance of the cross-border haze pollution in Southeast Asia. Profs. Nguy?n Th? H?ng Trinh (Hue University) and Bùi Th? Qu?nh Trang (Thuongmai University) explored the current situation and future prospects of climate change litigation from the perspective of Vietnamese law. Prof. Anselmo Reyes (International Judge at the Singapore International Commercial Court) gave a report entitled The Impartial Judge, Climate Change and the Conflict of Laws, with a focus on the question of how judges could get prepared in the face of increasing climate change litigations.

The last panel on The International Framework was chaired by Zheng Tang (Wuhan University). Dr Gérardine Goh Escolar (HCCH), in a prerecorded presentation, highlighted the efforts of the Hague Conference on Private International Law to provide legal certainty for stakeholders in the digital global economy and the global circular economy, and stressed the need to establish a sound procedural and substantive legal framework and international cooperation. Dr Ning Zhao (HCCH) emphasised the importance of Hague Conventions in simplifying administrative procedures and stressed the role of information technology in improving efficiency and reducing formalities in the cross-border transactions; her presentation was also prerecorded. Finally (and in person), (Wuhan University) gave a report entitled Regulating Global Anti-Competitive Conduct and the Role of Private International Law: Lessons from China. He pointed out the practical challenges of private enforcement of competition law in China and argued for enhanced efforts in both institution and capacity building.

Zheng Tang brought the event to a successful conclusion. As the Editor-in-Chief of the Chinese Journal of Transnational Law, she expressed her hope for more cooperation and exchanges between the journal and the conference participants in the future. The conference was followed by a lovely tour of the beautiful campus at Wuhan University.

(Photo by Wentao XU)

 

 

 

 

On 5–6 December 2024, 18 private international lawyers from Australia, Hong Kong, Japan, New Zealand and Singapore came together at the University of Melbourne for the 2024 Asia-Pacific Colloquium of the Journal of Private International Law (JPIL).

The colloquium was the first since 2018, when it had been held in Japan. The 2024 event was expertly hosted by Professor Richard Garnett and Professor Ying Khai Liew of the University of Melbourne Law School, and held at University House at UniMelb’s Parkville campus.

The theme of the 2024 Colloquium was ‘Private International Law: Domestic Law or International Law?’. The organisers provided the following prompt to participants:

While private international law forms part of a country’s domestic legal system, it has also been influenced by international developments, such as foreign decisions, scholarly writings, conventions and other transnational instruments. Participants are encouraged to consider topics in private international law that address this theme: for example, some areas have remained wholly domestic in nature while others reveal clear evidence of cross- border harmonisation. Is ‘internationalisation’ of private international law always achievable or desirable?

In the tradition of the JPIL’s colloquia, each participant provided a draft paper which was circulated before the event. Participants took varying approaches to presenting their work: some provided a high-level summary of their paper; others focused on particular issues in their work, or unresolved questions. Each session allowed for plenty of time for discussion. The tone of the discussion was overwhelmingly positive: participants provided one another with constructive criticism and encouragement in a collegial manner.

The event was broken up by events on Thursday night: the launch of the Australasian Association of Private International Law at Corrs Chambers Westgarth (write-up to follow), then a delicious dinner at a very trendy Melbourne restaurant. (Well chosen, Richard and Ying.) A great time was had by all.

The event demonstrated the great value of bringing the private international law community together in person: an opportunity to enhance our writing, our understanding of the discipline, and our circle of friends. It got me excited for the 2025 JPIL conference in London. I hope my fellow southerners join us in the UK at UCL.

 

The 2024 Colloquium was attended by:

Associate Professor Ardavan Arzandeh, National University of Singapore

Dr Michael Douglas, Bennett – Litigation and Commercial Law

Professor Richard Garnett, University of Melbourne

Professor Ying Khai Liew, University of Melbourne

Associate Professor Maria Hook, University of Otago

Associate Professor Jeanne Huang, University of Sydney

Professor Mary Keyes, Griffith University

Dr Lemuel Lopez, RMIT University

Wilson Lui, University of Melbourne

Professor Reid Mortensen, University of Southern Queensland

Professor Yuko Nishitani, Kyoto University

Cara North, Corrs Chambers Westgarth

Professor Luke Nottage, University of Sydney

Associate Professor Sagi Peari, University of Western Australia

Dr Poomintr Sooksripaisarnkit, University of Tasmania

Assistant Professor Marcus Teo, National University of Singapore

Associate Professor Dicky Tsang, Chinese University of Hong Kong

Jack Wass, Stout Street Chambers, New Zealand Bar

 

Stefan Arnold (Institute of International Business Law, Chair for Private Law, Philosophy of Law, and Private International Law, University of Münster, Münster, Germany) and Bettina Heiderhoff (Institute for German and International Family Law, Chair for Private International Law, International Civil Procedure Law and German Private Law, University of Münster, Münster, Germany) have recently published an edited book on Children in Migration and International Family Law (Springer, 2024).

The book is an open access title, so it is freely available to all. In the editors’ words, the book aims “to shed light on the often overlooked legal difficulties at the interface between international family law and migration law” (p. 3) with focus placed “on the principle of the best interests of the child and how this principle can be more effectively applied.” (p.4)

 

The book’s blurb reads as follows:

This open access book offers readers a better understanding of the legal situation of children and families migrating to the EU. Shedding light on the legal, practical, and political difficulties at the intersection of international family law and migration law, it demonstrates that enhanced coordination between these policy areas is crucial to improving the legal situation of families on the move. It not only raises awareness of these “interface” issues and the need for stakeholders in migration law and international family law to collaborate closely, but also identifies deficits in the statutory framework and suggests possible remedies in the form of interpretation and regulatory measures.
The book is part of the EU co-financed FAMIMOVE project and includes contributions from international experts, who cover topics such as guardianship, early marriage, age assessment, and kafala from a truly European perspective. The authors’ approach involves a rigorous analysis of the relevant statutory framework, case law, and academic literature, with particular attention given to the best interest of the child in all its facets. The book examines how this principle can be more effectively applied and suggests ways to foster a more fruitful understanding of its regulatory potential.

Given its scope and focus, the book will be of interest to researchers, scholars, and practitioners of Private International Law, Family Law, and Migration Law. It makes a valuable contribution to these fields, particularly at their often-overlooked intersections.

 

The content of the chapters is succinctly summarized in the introductory chapter of the book, authored by the editors (“Children in Migration and International Family Law: An Introduction,” pp. 11–16). This summary is referenced here as a sort of abstract for each chapter.

 

Part I Introduction

 

Children in Migration and International Family Law: An Introduction

Bettina Heiderhoff and Stefan Arnold

 

The chapter describes the “Aims of the book and the FAMIMOVE Project”, “The Protections of the Best Interests of the Child: ”

 

An Introduction to FAMIMOVE, Its Accomplishments and Its Challenges

Marta Pertegás Sender

 

The first part of this book (Part I) …  is dedicated to the FAMIMOVE-project and sets out the background, foundation and aims of FAMIMOVE.

 

Part II General Topics

 

The Child’s Best Interests in International Jurisdiction Under the Brussels IIter Regulation

María González Marimón

[The chapter] sheds light on the child’s best interests in the area of international jurisdiction under the Brussels IIter Regulation. María González Marimón focuses on parental responsi-bility which is of paramount importance for the child’s best interests in international settings and within migration contexts. She demonstrates how the Brussels IIter Regulation’s jurisdiction model aims to reflect an accurate balance between abstract and concrete notions of the child’s best interests. The article illustrates how this balance is achieved: The habitual residence of the child is generally the relevant factor for jurisdiction, but a range of exceptions to this general rule reflect experiences from practice and enables courts to achieve adequate solutions. María González Marimón also welcomes the jurisdiction regime as an enhancement of the child’s best interests principle in its triple dimension as a substantive right, an inspiring principle, and as a procedural rule.

 

The Principle of the Child’s Best Interests in EU Law on Third-Country Nationals

Iris Goldner Lang

[The chapter] demonstrates that the child’s best interests principle is a paramount and intrinsic value of EU law, serving as an underlying rationale for EU legislation and judgments. Iris Goldner Lang examines how this fundamental principle impacts the rights of third-country nationals in the EU, with a focus on decisions related to family reunification as well as EU migration and asylum law. She develops a multidimensional understanding of the child’s best interests principle, highlighting its threefold function as a substantive right, an interpretative tool, and a procedural rule. Based on this analysis, Iris Goldner Lang argues that the principle of the child’s best interests will continue to gain importance in EU law on third-country nationals, due to its multidimensional nature and its role as a counterbalance to the ongoing trend of restricting the rights of migrants and asylum seekers across the EU.

 

Binding Effect of an Age Assessment

Kai Hüning

[The chapter] examines a difficult problem that is well-known in legal practice, namely the problem of age assessment in the perspective of the child’s best interests principle. Kai Hüning illustrates the background of age assessment in the context of migration of minors and sheds light on the need for age assessment and its methods. The article’s focus lies on the question of whether or not age assessment procedures carried out in one member state of the EU must be recognised by other member states. Kai Hüning invokes the Charter of Fundamental Rights of the European Union, the UN 1989 Convention on the Rights of the Child (CRC) and the Human Rights Convention for his approach to that problem: Kai Hüning argues for a binding effect in principle — an effect that must be incorporated by way of interpretation of the national provisions.

 

Part III Guardianship for Unaccompanied Minor Refugees

 

Guardianship of Children in the Context of Migration in Hungary

Orsolya Szeibert

[The chapter] focuses on guardianship of unaccompanied minors in Hungary. Orsolya Szeibert gives an overview of the Hungarian asylum regime, its political background and complexity. She points out how the situation of children in Hungary was heavily affected by several legal acts in the mid-2010s that contained specific provisions for the “crisis situation caused by mass immigration”. Orsolya Szeibert shows the (negative) effects of these provisions for minors and points out that the “crisis situation” has been continously prolonged since 2016 until today. She refers to criticisms of the Hungarian status quo in which unaccompanied minors between the age of 14 and 18 are effectively considered as adult asylum applicants.

 

Guardianship and Other Protective Measures for Minor Refugees in Germany

Bettina Heiderhoff

[The chapter] emphasises the importance of protecting unaccompanied minor refugees and points out the connections of migration law, private international law and family law. Bettina Heiderhoff examines the central terms “minor” and “unaccompanied” in the perspective of German law, describes the procedures for the appointment of guardianship and other protective measures (in particular, the so-called provisional taking into care). She also analyses cases in which a minor refugee arrives in Germany after a guardian has been appointed in another member state. Bettina Heiderhoff shows that Germany combines several legal institutions to ensure the protection of unaccompanied minor refugees. Yet she also points to considerable problems, in particular a conflict of interest of the youth welfare office, the lack of special knowledge of the guardians as regards asylum law and certain difficulties as regards age assessment and responsibility.

 

A European Approach to Cross-Border Guardianship

Bettina Heiderhoff

[The chapter provides] an outlook on the European perspective regarding guardianship […]. [The author ] emphasises that EU law only regulates specific aspects of migration law and private international law, while substantive family law remains under the jurisdiction of member states. Bettina Heiderhoff argues that the opportunities for EU law to directly influence guardianship practices are limited. Nonetheless, she points out potential refinements, particularly in the application of the Brussels IIter Regulation.

 

Part IV Early Marriage

 

Early Marriages in Sweden

Ulf Maunsbach

[The Chapter] explains recent developments in Sweden, where early marriages validly concluded abroad are generally not recognised. Ulf Maunsbach shows that there is a very narrow exception to this non-recognition principle: recognition is possible only in exceptional cases when there are extraordinary reasons. He argues that the application of the non-recognition principle may vary across different institutional settings, such as asylum proceedings, family law, or inheritance proceedings. Ulf Maunsbach explains that for the purposes of registering status relationships in the Swedish population registration database, the exception to the non-recognition principle will rarely apply since the Tax Agency’s examination relies solely on written documentation and does not include specific investigations into the circumstances surrounding the marriage. He also highlights a general lack of case law, which makes it even more difficult to evaluate the situation. Ulf Maunsbach argues for allowing individual exceptions to enable authorities and courts to make carefully considered decisions.

 

Early Marriage in Germany: Law and Politics of Cultural Demarcation

Stefan Arnold

[The Chapter] examines the German law on early marriage with a focus on the recent statute effective from 1 July 2024. Stefan Arnold argues that the recent German law on early marriage is emblematic of symbolic politics and cultural demarcation, highlighting the detrimental power of symbolic lawmaking. He shows that the law’s turbulent recent history has been written by an unfortunate interplay between courts, politicians, and interest groups. He argues that before the recent legislative interventions, just and differentiated solutions were achieved by the courts through the application of the ordre public clause. Stefan Arnold shows that such solutions are no longer attainable, as German law now adheres to a strict policy of non-recognition of early marriages when a spouse was under the age of 16 at the time of marriage. He argues that the political debate and the law’s resort to a symbolic outlawing of early marriages abroad have significantly worsened the position of those deserving protection, particularly the young women concerned and the children born from such marriage.

 

Early Marriages in Austria: Private International Law and Ordre Public Assessment

Martina Melcher

[The Chapter] explains the Austrian legal framework regarding early marriages. Martina Melcher shows that the issue of a valid marriage arises not only in family law matters, but most often in family reunification and asylum proceedings. This part reveals that, unlike in Germany, early marriage has not yet been the subject of intense political and academic debates in Austria. Martina Melcher points out that Austrian Law enables courts to carefully consider the individual circumstances of each case. She notes that there is no violation of the Austrian ordre public if both spouses are adults at the time of the assessment, want to uphold their marriage, and there was neither coercion nor lack of will at the time of the marriage’s conclusion. She emphasizes that explicit legislation may not be necessary and argues for a careful, individual, and conscious analysis of all relevant aspects of the situation. At the same time, Martina Melcher calls for legislative action regarding certain aspects, particularly the consequences of early marriages in cases where they are not recognised.

 

Early Marriage: A European Perspective

Stefan Arnold

[The Chapter] particularly compares Sweden’s and Germany’s strict non-recognition approach with Austria’s flexible ordre public approach regarding early marriages validly concluded abroad. He argues that the Austrian approach is preferable, as it enables courts to achieve just solutions based on an individual case-by-case analysis. Based on the chapter’s comparative evaluation, Stefan Arnold develops proposals for potential legislative measures with an emphasis on institutional solutions that promote justice and prioritise the needs of those worthy of protection.

 

Part V Kafala

 

Beyond Kafala: How Parentless Children Are Placed in New Homes in Muslim Jurisdictions

Nadjma Yassari

[The Chapter] explores the various legal options available in Muslim jurisdictions for placing parentless children into new homes. She identifies four categories of these options: complete incorporation of a child into a new family, wide-ranging incorporation, structures for the temporary care of abandoned or orphaned children, and jurisdictions where caretaking occurs informally, with minimal state supervision or intervention. Nadjma Yassari reviews several Muslim jurisdictions and demonstrates how they have developed alternative caretaking arrangements for parentless children based on these categories. She discusses how these jurisdictions navigate the prohibition of tabanni (adoption) in Islamic law while still finding ways to provide children with stable homes. Nadjma Yassari highlights Tunisia as the only country to formally regulate and accept tabanni, allowing for complete incorporation of a child into a new family. She also notes the absence of a formalised legal framework for placing parentless children in new homes in some Muslim jurisdictions, such as Lebanon.

 

Kafala in France

Fabienne Jault-Seseke

[The Chapter] provides a French perspective on kafala. Fabienne Jault-Seseke highlights the practical importance of kafala in France: Many individuals of Moroccan or Algerian nationality living in France assume responsibility for a child born in their country of origin through kafala. Fabienne Jault Seseke explains how such arrangements intend to compensate for the absence of parents or to offer the child better living conditions and education. Additionally, as the chapter shows, kafala serves as an alternative to adoption, which is prohibited in Morocco and Algeria. Jault-Seseke argues that despite kafala not constituting adoption, it should be regulated similarly to ensure the protection of fundamental rights for all parties involved. She emphasises that Article 33 of the 1996 Hague Convention on parental responsibility and protection of children provides the necessary framework for this regulation.

 

Kafala in the Netherlands

María Mayela Celis Aguilar

[The Chapter] explains the legal framework and case law on kafala in the Netherlands where most cases originate from Morocco. Mayela Celis Aguilar points out a change of policy in 2013 following which kafala is no longer treated as adoptions but, with some caution, similar to foster care measures. She expounds the Dutch legislation and Article 33 of the 1996 Hague Convention that are applied in the Netherlands. Mayela Celis Aguilar evaluates the Dutch policy with regard to the recognition of kafalas as generally coherent and in line with the applicable international instruments. Yet she also points to concerns about the use of kafala to circumvent adoption and immigration policies and regulations.

 

Kafala in Belgium: Private International Law as an Essential Tool to Establish Migration Law Consequences?

Leontine Bruijnen

[The Chapter] discusses how a kafala can be characterised and recognised in Belgium, whether or not it should be converted into an adoption or whether kafala is equal to foster care. She points out that a kafala should be characterised as a child protection measure according to the 1996 Child Protection Convention yet that the Convention did not solve all kafala-related issues — particularly as regards migration law consequences. Leontine Bruijnen explains the relevant legal framework as well as the Belgian family and migration case law. She offers a solution based on the general recognition rules for kafalas falling outside the scope of the 1996 Child Protection Convention. Leontine Bruijnen further argues that the private international law framework should be taken into account to determine whether a makf?l (ward) can be considered an unaccompanied minor.

 

Principles to Ensure a Cross-Border Kafala Placement Is in the Best Interests of the Child

Giovanna Ricciardi and Jeannette Wöllenstein-Tripathi

[The Chapter] highlights the principles and recommended practices drawn from the International Social Services (ISS) Kafalah study 2020. These principles are aimed at guiding states in ensuring that cross-border kafala placements prioritise the best interests of the child. The authors emphasise that protecting children’s rights has always been central to the ISS mission. They caution that European debates on kafala often reflect Western perspectives that equate kafala with institutions like adoption, guardianship, or foster care. The authors underscore the importance of maintaining continuity in the child’s situation across borders, ensuring legal security, and respecting the child’s fundamental human rights.

 

Recognition of Kafala in European Member States: Need for a Uniform Approach?

Fabienne Jault-Seseke

[The Chapter] addresses whether and under what conditions a kafala issued in an Islamic state may be recognised in European member states. Jault-Seseke highlights the diverse approaches taken by member states and the lack of a uniform EU legislative approach. She argues that any European solution must uphold the EU Charter, the CRC, and the 1996 Child Protection Convention, and respect the cultural context of the child. She concludes that kafala should not not be equated with adoption and that the best interests of the child must be taken into account at both the pronouncement of kafala and recognition stages.

 

Part VI Additional Topics

 

The Role of the Court of Justice in Shaping the Right to Maintain Family Unity for Beneficiaries of International Protection

Alessia Voinich

[The Chapter] examines how the CJEU addresses member states’ flexibility in establishing more favorable national regimes. It explores the connection between the rights of family members and the asylum rights of their relatives who are beneficiaries of international protection, as well as situations where different member states bear responsibility for international protection and ensuring family unity. The chapter also assesses the impact of recent reforms within the Common European Asylum System (CEAS). Alessia Voinich underscores the high standards of protection for the right to family unity provided by EU secondary law and highlights the CJEU’s efforts to prioritise the best interests of the child as a guiding principle. She argues that the CJEU’s future decisions will be pivotal in achieving a balanced approach between uniformity and necessary flexibility in individual cases.

 

Polygamous Marriages and Reunification of Families on the Move Under EU Law: An Overview

Giovanni Zaccaroni

[The Chapter] is dedicated to polygamous marriages that are usually associated with countries outside the EU. Giovanni Zaccaroni shows how questions of the recognition of polygamous marriages and possible rights attached to the status of the spouses have led to intense discussions in the EU. He argues that the prohibition of family reunification under EU law represents an obstacle to free movement and family reunification of migrant families, and, potentially, also to the best interests of the child. But, as Giovanni Zaccaroni argues, at the same time it is rooted in the necessity to protect and promote equal treatment between men and women, enshrined in the EU Charter of Fundamental Rights as well as in the national constitutions. The contribution highlights the need to protect the rights of the weaker parts of the relationship and to avoid the creation of partners of first and second class, thus discriminating among persons in a similar situation and violating their fundamental rights.