Agrégateur de flux

The first issue of the Journal of Private International Law for 2021 was released today and it features the following articles:

Paul Beaumont, Some reflections on the way ahead for UK private international law after Brexit

Since 1 January 2021 the UK has moved out of the implementation period for its withdrawal from the European Union (EU) and it is an appropriate time to reflect on the way forward for the UK in developing private international law. This article considers the practical steps that the UK should take in the near future. There is significant work that the UK can do to progress its commitment to the “progressive unification of the rules of private international law” by improving its commitment to the effective functioning of several key Conventions concluded by the Hague Conference on Private International Law (HCCH). Some of these steps can and should be taken immediately, notably accepting the accessions of other States to the Hague Evidence and Child Abduction Conventions and extending the scope of the UK’s ratification of the Adults Convention to England and Wales, and Northern Ireland. Other things require more consultation and time but there are great opportunities to provide leadership in the world by ratifying the Hague Judgments Convention 2019 and, when implementing that Convention which is based on minimum harmonisation, providing leadership in the Commonwealth by implementing, at least to some extent, the Commonwealth Model Law on Recognition and Enforcement of Civil and Commercial Judgments. Within the UK, as a demonstration of best constitutional practice, intergovernmental cooperation between the UK Government and the devolved administrations should take place to consider how intra-UK private international law could be reformed learning the lessons from the UK Supreme Court’s highly divided decision in Villiers. Such work should involve the best of the UK’s experts (from each of its systems of law) on private international law from academia, the judiciary and legal practice. Doing so, would avoid accusations that Brexit will see a UK run by generalists who give too little attention and weight to the views of experts. This use of experts should also extend to the UK’s involvement in the future work of HCCH at all levels. The HCCH will only be able to be an effective international organisation if its Members show a commitment to harnessing the talents of experts in the subject within the work of the HCCH.

 

Reid Mortensen, Brexit and private international law in the Commonwealth

“Brexit is a trading and commercial opportunity for the countries of the Commonwealth, as it makes it likely that, for many, their access to United Kingdom (UK) markets will improve significantly. The question addressed in this article is whether, to support more open and trading relationships, Brexit also presents opportunities for the development of the private international law of Commonwealth countries – including the UK. Focusing on Australia, Canada, New Zealand and Singapore, as well as the UK, an account is given of the relationship between the different systems of private international law in these Commonwealth countries in the period of the UK’s membership of the European Union (EU). Accordingly, consideration is given to the Europeanisation of UK private international law and its resistance in other parts of the Commonwealth. The continuing lead that English adjudication has given to private international law in the Commonwealth and, yet, the greater fragmentation of that law while the UK was in the EU are also discussed. The conclusion considers the need to improve the cross-border enforcement of judgments within the Commonwealth, and the example given in that respect by its federations and the trans-Tasman market. Possible directions that the cross-border enforcement of judgments could take in the Commonwealth are explored.”

 

Trevor Hartley, Arbitration and the Brussels I Regulation – Before and After Brexit

This article deals with the effect of the Brussels I Regulation on arbitration. This Regulation no longer applies in the UK, but the British Government has applied to join the Lugano Convention, which contains similar provisions. So the article also discusses the position under Lugano, paying particular attention to the differences between the two instruments. The main focus is on the problems that arise when the same dispute is subject to both arbitration and litigation. Possible mechanisms to resolve these problems – such as antisuit injunctions – are considered. The article also discusses other questions, such as freezing orders in support of arbitration.

 

Maksymilian Pazdan & Maciej Zachariasiewicz, The EU succession regulation: achievements, ambiguities, and challenges for the future

The quest for uniformity in the private international law relating to succession has a long history. It is only with the adoption of the EU Succession Regulation that a major success was achieved in this field. Although the Regulation should receive a largely positive appraisal, it also suffers from certain drawbacks that will require a careful approach by courts and other authorities as to the practical application of the Regulation. The authors address selected difficulties that arise under its provisions and make suggestions for future review and reform. The article starts with the central notion of habitual residence and discusses the possibility of having a dual habitual residence. It then moves to discuss choice of law and recommends to broaden further party autonomy in the area of succession law. Some more specific issues are also addressed, including legacies by vindication, the relationship between the law applicable to succession, the role of the legis rei sitae and the law applicable to the registries of property, estates without a claimant, the special rules imposing restrictions concerning or affecting succession in respect of certain assets, as well as the exclusion of trusts. Some proposals for clarifications are made in that regard.

 

Stellina Jolly & Aaditya Vikram Sharma, Domestic violence and inter-country child abduction: an Indian judicial and legislative exploration

The Hague Convention on the Civil Aspects of International Child Abduction aims to prevent the abduction of children by their parents by ensuring the child’s prompt return to his/her place of habitual residence. At the time of drafting the Convention, the drafters believed that non-custodial parents who were fathers perpetrated most of the abductions. However, the current statistics reveal the overwhelming majority of all abductors as primary or joint-primary caretakers. Unfortunately, it is unknown what exact proportion of these situations includes abductions triggered by domestic violence. In the absence of an explicit provision of domestic violence against spouses as a defence against an order of return, for a parent who has abducted a child to escape domestic violence, the relevant defence is of “grave risk of harm” to and “intolerable situation” for the child under Article 13(1)(b) of the Convention. However, the lack of guidance on what constitutes “grave risk” and “intolerable situation”, at least in the past, and its operationalisation in the context of domestic violence brings in pervasive indeterminacy in child abduction. In 2012, the Hague Conference on Private International Law identified “domestic violence allegations and return proceedings” as a key issue and recommended steps for developing principles on the management of domestic violence allegations in return proceedings leading to the adoption of a Good Practice Guide on this issue in 2020.

The Ministry of Women and Child Development (WCD) and the Ministry of Law and Justice, India, cite that most Indian parents who abduct their children happen to be women escaping domestic violence abroad. Thus, they are victims escaping for themselves and their children’s safety. This research has summed up the judgments delivered by High Courts and the Supreme Court of India on child abduction between 1984 and 2019. Through judicial mapping, the paper discusses the cases in which battered women have highlighted and argued domestic violence as a reason against their children’s return. The paper evaluates whether the reason given by the two ministries against India’s accession to the Hague Convention is reflected in cases that have come up for judicial resolution and what are the criteria evolved by the judiciary in addressing the concerns of domestic violence against a spouse involved in child abduction. The paper analyses India’s legislative initiative, the Civil Aspects of International Child Abduction Bill, 2016 and assesses the measures proposed by the Bill for considering domestic violence against a spouse in abduction cases.

 

Kittiwat Chunchaemsai, Legal considerations and challenges involved in bringing the 2005 Hague Convention on Choice of Court Agreements into force within an internal legal system: A case study of Thailand

Thailand must consider two vital elements, namely its internal legal system and environment before signing the Hague Convention on Choice of Court Agreements 2005 (Hague Convention). This paper investigates whether the law of Thailand in its current form is inconsistent with the Hague Convention. Articles 1–15 are examined to identify areas of inconsistency and to suggest appropriate solutions. This study finds that the internal legal system of Thailand is not quite in line with the Hague Convention. This conclusion leads to analytical recommendations to suit the needs of the current Thai legal system. Implementing these recommendations is necessary for Thailand if it intends to become a Party to the Hague Convention. Thailand must not only have a specific implementation act but must also review and revise the relevant laws appropriately.

 

Saeed Haghani,  Evolution of lex societatis under Iranian law: current status and future prospects

There has been a growing attention to applicable law to companies (lex societatis) in Iranian legal research. A brief study of relevant legal literature leads us to a list of both disagreements and complexities on the subject. Meanwhile, a recent parliamentary effort on the issue, illustrates the importance of lex societatis in the eyes of the Iranian legislature. A comparative approach would be of great help in the analysis of the formation and evolution of relevant Iranian legal rules. This paper tries to provide the reader with a comprehensive view of the current transitory state of Iranian law regarding lex societatis.

 

 

“Si l'article L 213-6 du code de l'organisation judiciaire donne compétence au juge de l'exécution pour connaître des contestations qui s'élèvent à l'occasion de la procédure de saisie immobilière et des demandes nées de cette procédure ou s'y rapportant directement, même si elles portent sur le fond du droit, un débiteur est-il recevable à solliciter du juge de l'exécution, devant statuer sur sa demande d'autorisation de vente à l'amiable du bien saisi, l'autorisation, sur le fondement des articles 815-5 et 1235-1 du code civil, de procéder seul à la vente du bien en indivision saisi pour laquelle le consentement du coïndivisaire est nécessaire ?”

At issue in Skatteforvaltningen (The Danish Customs And Tax Administration) v Solo Capital Partners LLP & Ors [2021] EWHC 974 (Comm)  is ‘Dicey Rule 3’ which states that “English courts have no jurisdiction to entertain an action: (1) for the enforcement, either directly or indirectly, of a penal, revenue or other public law of a foreign State; or (2) founded upon an act of state“. The assertion of such claims is an extension of a sovereign power of taxation and, per Lord Keith of Avonholm in Government of India v Taylor [1955] A.C. 491, 511: “an assertion of sovereign authority by one State within the territory of another, as distinct from a patrimonial claim by a foreign sovereign, is (treaty or convention apart) contrary to all concepts of independent sovereignties“.

By its claims, SKAT (Danish customs and excise) seeks the return of amounts it says it was wrongly induced to pay out as tax refunds.

Brussels Ia and Lugano (the latter viz a number of defendants domiciled in Lugano States) feature in the discussion because SKAT argue that [22] ‘: (i) this is a ‘civil and commercial matter’, not a ‘revenue, customs or administrative matter’, under A1(1) BIa; and (ii) it is therefore not possible to invoke Dicey Rule 3 to dismiss its claims against Brussels-Lugano defendants, because to do so would be to decline to exercise a jurisdiction conferred by the Brussels-Lugano regime otherwise than in accordance with its rules.’

If the argument were upheld, any claims falling within Dicey Rule 3 would proceed against Brussels-Lugano defendants while being dismissed against other defendants. 

Dicey Rule 3 is not a jurisdictional rule: it is a substantive rule of English law. Yet SKAT’s argument in my view essentially means that an application of Dicey Rule 3 to the matter, would deprive A1(1) BIa of its effet utile.

Logically the BIa /Lugano argument would have had to have been considered first. Baker J does the opposite (his thinking process, unlike writing up, may of course first have considered the BIa argument) and holds at 120 after thorough consideration of the authorities on Dicey Rule 3, that the rule applies: SKAT’s claims seek indirectly to enforce in E&W, Danish revenue law.

In an interesting Coda at 121 ff, he also considers obiter the argument that, in essence, was that in line with a long public international law history, the cross-border recovery of tax refunds wrongfully procured is seen as or assumed to be a matter of revenue law requiring to be dealt with (if at all) by supranational legal instrument. Refence here is made ia to 1925 League of Nations reports.

Justice Baker starts [132] the BIa /Lugano argument along familiar lines: need for autonomous interpretation. QRS 1 ApS et al v Frandsen [1999] EWCA Civ 1463 is English authority under the Brussels Convention, and CJEU C-49/12 Sunico (to which both the AG and the CJEU refer in C-73/19 Belgische Staat v Movic BV et al) CJEU authority.

[142] In Sunico, the CJEU considered claims brought by HMRC alleging missing trader VAT carousel frauds. The substantive claims, for damages at common law for an alleged tortious conspiracy to defraud, were pursued in E&W against defendants domiciled in Denmark. HMRC also brought ancillary  proceedings in Denmark to attach assets with a view to enforcing any damages judgment obtained in England. Those Danish proceedings were objected to on the basis that they were a ‘revenue [etc] matter’ excluded from BI.

[144] The CJEU concluded at [41]-[43], essentially, that because the claim was framed in tort and not as a claim under a tax law, the proceedings were a ‘civil and commercial matter’ and not a ‘revenue [etc] matter’ for the purpose of Article 1(1) of the Brussels Regulation, so long as “the commissioners were in the same position as a person governed by private law in their action against Sunico and the other non-residents sued in the High Court of Justice” (ibid at [43]).

At 149 Baker J concedes that the decision of the Court of Appeal in Frandsen was incorrect per Sunico, however then holds that the result would be the same: the classification of proceedings as a ‘civil and commercial matter’ or a ‘revenue [etc] matter’ for the purpose of applying the Brussels-Lugano regime does not touch the question whether Dicey Rule 3 applies so as to defeat the claim. He suggests [149] a search for the lex causae under Rome II would be largely irrelevant for per A16 Rome II Dicey Rule 3 qualifies as lois de police, and finds support for his view that despite scholarly suggestion (i.a. by prof Briggs), Frandsen must not be displaced, in The Law Debenture Trust Corporation [2017] EWHC 655 (Comm) [and in Andrew Dickinson’s reporting on same], in which the English Act of State doctrine was upheld despite Rome II’s classification of the matter as civil and commercial.

At 165 ff he, somewhat superfluously still considers the more recent CJEU authority of Buak and the aforementioned Movic, and decides at 174 that per BUAK and Movic (on the use of evidence etc.) that SKAT was neither attempting nor able to change the rules of the litigation game, either as to the substantive rules of law that would apply in determining its claims, or as regards the procedural rules applicable in the litigation, or as regards the status or effect of any of the evidence it might deploy or disclose. SKAT was not by this litigation pursuing public law proceedings, in which liabilities are determined as if this were a judicial review of SKAT’s actions, decisions or exercise of public law powers.

Yet that the matters are of a civil and commercial nature, in the end does not matter at all: [176]

To the extent that SKAT relied on the Brussels-Lugano regime as the basis for this court having jurisdiction over the Brussels-Lugano defendants that have been sued, including it may be for serving proceedings out of the jurisdiction, in my judgment it was right to do so. But its having been entitled to do so did not oust or disapply Dicey Rule 3 in respect of those defendants.

Using prof Dickinson’s words (26-27), there is a dissonance here between Brussels Ia and the applicable law. One that, I would suggest, endangers the effet utile of Brussels Ia. Dicey Rule 3’s character as a substantive rather than a jurisdictional rule, does not to my mind save that.

Geert.

EU Private International Law, 3rd ed. 2021, para 2.28 ff.

Skatteforvaltningen (Danish HMRC) v Solo Capital Partners eaors [2021] EWHC 974 (Comm) (27 April 2021)
Whether qualification as 'civil and commercial' under BIa, Lugano, displaces Dicey Rule 3 (foreign revenue claims are not entertained by E&W courts) https://t.co/vGFGel6RSw pic.twitter.com/7txUPRx90U

— Geert Van Calster (@GAVClaw) April 29, 2021

In a judgment dated 10 December 2020, the German Federal Court restricted the provision tax advice on German soil. The court ruled that advice to German clients cannot be rendered on a permanent basis through a subsidiary unless the partners possess the necessary qualifications under the German Code on Tax Consultancy. Although the case in question concerned a British LLP, it is not limited to them but applies to all partnerships from EU Member States.

A Highly Disputed Case

The ruling is especially remarkable given that the Commission had not only criticized the German Code in a letter for limiting the freedom of establishment (Article 49 TFEU), but even started legal proceedings against Germany for violation of the Treaties. The Federal Court was unmoved. It saw no incompatibility with EU law, nor a need to submit a preliminary question on its interpretation to the CJEU.

On Fundamental Freedoms

In the Federal Court’s view, a tax adviser seeking to offer consultancy services on German tax law must have the qualifications required under German law. Such restriction of the freedom of establishment (Article 49 TFEU) was justifiable by the public interest in the quality of such advice. German law would not violate Art 5(2) of the Directive on the recognition of professional qualifications either, given that the provision of services through a subsidiary is not merely “temporary and on an occasional basis”.

The Federal Court considered the German rules to be coherent and systematic, despite the many exceptions it provides for other professions, such as German notaries or banks. The Federal Court saw the latter as justified because of their limitation to ancillary services, whereas the provision of tax advice through a subsidiary would amount to a main service that required a specialisation in German tax law.

On the Conflict of Laws

From the point of view of private international law, the most remarkable part of the judgment concerns liability. The suit was brought by one of the LLP’s German competitors against one of the partners personally and sought injunctive relief in the form of ceasing and desisting from advertisements for the LLP’s subsidiary’s tax consultancy services, including its entry into the German partnership register. The Federal Court ruled that the partner could indeed be personally liable under sec. 8 of the German Act Against Unfair Competition given that he was one of the applicants of the entry into the register and had publicly advertised with it.

Assessment

The Federal Court’s ruling on EU law is to be criticised. The compatibility of the German rules on tax advice with the freedom to establishment is not as clear as outlined by the Federal Court, as highlighted by the Commission’s action against Germany. The least the Federal Court should have done is to submit a preliminary question to the CJEU.

The conflict-of-laws component demonstrates the danger partners of LLPs or similar entities run in Germany and other EU Member States. They may be personally liable for the breach of regulatory duties and the resulting violations of the law of unfair competition. In particular, this is not excluded by the limitation of liability provided under the applicable partnership law and agreed in the articles of the partnership.

The case is also interesting from a doctrinal perspective. It demonstrates that the law of unfair competition and corporate law use different connecting factors. Moreover, the issue whether regulatory duties have been violated is a “preliminary question” which is subject to a wholly different conflicts approach.

Advocate General Tanchev delivered today his opinion in case C‑791/19 (European Commission v Republic of Poland), which is about the Rule of Law and the disciplinary regime for judges (including “allowing […] the content of judicial decisions to be treated as a disciplinary offence”):

“I propose that the Court should:

(1) declare that by allowing […] the content of judicial decisions to be treated as a disciplinary offence; by failing to guarantee […] the independence and impartiality of the Disciplinary Chamber; by granting [….] the President of the Disciplinary Chamber the power to designate the competent disciplinary court of first instance in cases concerning ordinary court judges; by granting […] the Minister for Justice the power to appoint a Disciplinary Officer of the Minister for Justice and by providing […] that activities related to the appointment of ex officio defence counsel and that counsel’s taking up of the defence do not have a suspensive effect on the course of the proceedings and […] that the disciplinary court is to conduct the proceedings despite the justified absence of the notified accused or his or her defence counsel, the Republic of Poland has failed to fulfil its obligations under the second subparagraph of Article 19(1) TEU;

(2) declare that, by allowing the right of national courts to make a reference for a preliminary ruling to be limited by the possibility of the initiation of disciplinary proceedings, the Republic of Poland has failed to fulfil its obligations under the second and third paragraphs of Article 267 TFEU”.

Source: https://curia.europa.eu/juris/document/document.jsf?text=&docid=240848&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=262087

Volume 11/2019 of the Journal of Law & Islam / Zeitschrift für Recht & Islam (ZR&I) has just been published. The full issue is available online here. It includes case notes and articles devoted to questions of Islamic law and its interaction with other legal systems. Some of the articles are in English.

Editorial …………………………………………………………………………………… (7 f.)

Rechtsprechung & Urteilsberichte (Case Law) ………………………………………………. (9–36)

Bruno Menhofer, Verpflichtung zur Mitwirkung an religiöser Scheidung und Grenze der rechtlichen Bindung –
Anmerkung zum Beschluss des OLG Hamburg vom 25. 10. 2019 – 12 UF 220/17
[Duty to Participate in a Religious Divorce and its Legally Binding Limits – Commentary
on the Ruling of Hamburg?s Higher Regional Court (Oberlandesgericht [OLG] Hamburg)
of 25. 10. 2019 – 12 UF 220/17] ……………………………………………….. (9–14)

Bruno Menhofer, Function follows form – Zur Entscheidung des BGH über die Formbedürftigkeit der Vereinbarung
einer Brautgabe nach deutschem Recht
[Function Follows Form – Comment on the Federal Court of Justice (Bundesgerichtshof [BGH]
Judgment Regarding Formal Requirements of a Dowry Agreement under German Law]    (15–23)

Rike Sinder, Entscheidungsanmerkung zu BVerfG, Beschluss der 2. Kammer des Ersten Senats vom 29. 04. 2020 –
1 BvQ?44/20 – Freitagsgebet im Ramadan in Zeiten von Corona-Verordnungen
[Commentary on the Federal Constitutional Court (Bundesverfassungsgericht [BVerfG]) Order
of the 2nd Chamber of the First Senate of 29 April 2020 – 1 BvQ 44/20 – Friday Prayer
during Ramadan and the COVID-19 Ban on Church Services]    (25–30)

Andrés Ring & Jivesh Chandrayan, Enforcement of UAE Judgments in India.    (31–36)

Articles.    (37–116)

Abdessamad Belhaj, The Jurist’s Resilience: The European Council for Fatwa and Research and the Corona Fatawa.    (37–52)

Ahmed Gad Makhlouf, Ma??hib in der Moderne: Kontinuität und Wandel des traditionellen madhab-Wesens
innerhalb der gegenwärtigen kollektiven Fiqh-Gremien
[Madahib in Modern Times: Continuity and Change of Traditional madhab Scholarship
within Contemporary Collective Fiqh-Comittees]    (53–73)

Ranya Jamil, ‚Fatwa-Import‘ und seine Auswirkungen auf muslimische Minderheiten in Europa
[Fatwa-import and its Impact on Muslim Minorities in Europe]   (75–84)

Mina Moazzeni, S. Kamal Keshiknevis Razavi & Abbas Ahmadvand, Der historiografische Wert von Texten zur Islamischen Rechtswissenschaft (fiqh) – Eine Fallstudie:
Al-Hawi li-l-Fatawi von Galal ad-Din as-Suyuti

[The Historiographical Value of Texts on Islamic Jurisprudence (fiqh) – A Case Study:
Al-Hawi li-l-Fatawi von Galal ad-Din as-Suyuti]    (85–102)

Rana Alsoufi, Ibn Hazm’s Refutations of Causality in Islamic Law (Ibtal at-Talil fi Ahkam ad-Din) (103–116)

Forschungsbericht / Research Report. (117–128)

Susan Rutten, Traditional and Religious Marriages. Research, Practices and Policies in the Netherlands. (117–128)

Rezensionen / Reviews. (129–159)

Sebastian Maisel, Review: Ahmed Abd-Elsalam: Das beduinische Rechtssystem: Konzepte – Modelle –
Transformationen (Beiruter Texte und Studien 136), Würzburg 2015. (129–131)

Björn Bentlage, Review: Shaheen Sardar Ali: Modern Challenges to Islamic Law. Cambridge 2016. (133–135)

Silvia Tellenbach, Rezension zu Olaf Köndgen: The Codification of Islamic Criminal Law in the Sudan –
Penal Codes and Supreme Court Case Law under Numayri and al-Bashir
(Studies in Islamic Law and Society 43), Leiden/Boston 2018. (137–141)

Abir Haddad, Rezension zu Abdurrahim Kozali / Ibrahim Salama / Souheil Thabti (Hgg.): Das islamische
Wirtschaftsrecht (Reihe für Osnabrücker Islamstudien 19), Frankfurt am Main 2016. (143–152)

Achim-Rüdiger Börner, Rezension zu Peter-Christian Müller-Graff (Hg.): EU-Nachbarschaftspolitik – Nordafrika und Nahost
(Schriftenreihe des Arbeitskreises Europäische Integration e. V. 102), Baden-Baden 2017. (153–159)

Tagungsberichte / Conference Reports. (161–205)

Hadi Enayat & Mirjam Künkler, Conference Report: The Politics of Law and the Judiciary in Contemporary Iran –
Aga Khan University (London), December 4, 2018. (161–164)

Mouez Khalfaoui, Tagungsbericht: Islamic Family Law in Europe and the Islamic World.
Symposium am Schloss Herrenhausen (Hannover), 25.–27. September 2019. (165–169)

Mikele Schultz-Knudsen, Conference Report: Islam and Europeanization – Legal Perspectives, Centre for European
and Comparative Legal Studies, Faculty of Law, University of Copenhagen, October 4, 2019. (171–182)

Gianluca Parolin, Conference Report: Words Laying Down the Law: Translating Arabic Legal Discourse,
Aga Khan University, London, UK, October 7 & 8, 2019. (183–194)

Lara-Lauren Goudarzi-Gereke, Conference Report: Law Between Dialogue and Translation: Harmonizing National Law
with International Law – The Case of Women’s Rights in Palestine, University of Göttingen,
Germany, November 5 & 6, 2019. (195–199)

Isabel Schatzschneider & Rosa Shuaibat, Workshop-Bericht: God’s Justice and Animal Welfare, Department Islamisch-Religiöse Studien
an der Friedrich-Alexander-Universität Erlangen-Nürnberg, 13. & 14. Dezember 2019. (201 f.)

Viktor Forian-Szabo, Martin Baumgartner & Leonard Soldo, Conference Report: Modern Law and Institutional Decay – The Ecology of Institutional Transplants
in the Muslim World, University of Vienna, Faculty of Law, February 10 & 11, 2020. (203–205)

Call for Papers (Aufruf zum Einreichen von Beiträgen) (207–210)

Marcus Teo also recently published an article  with International and Comparative Law Quarterly titled: “Narrowing Foreign Affairs Non-Justiciability.”

The abstract reads as follows:

“The UK Supreme Court’s decision in Belhaj v Straw defined foreign affairs non-justiciability and unearthed its constitutional foundations. However, two decisions since Belhaj—High Commissioner for Pakistan v Prince Muffakham Jah and The Law Debenture Trust Corpn plc v Ukraine—have called Belhaj into doubt, narrowing non-justiciability to give effect to ordinary private law rights. This article analyses these decisions and argues that their general approach of subjecting issues involving transactions between sovereign States to private international law’s framework is desirable, because the constitutional foundations of non-justiciability identified in Belhaj are shaky. Yet, it is suggested that private international law itself may require courts to exercise judicial restraint on these issues, given its goal of upholding the efficient resolution of international disputes in appropriate fora.”

Accident de la circulation - Véhicule terrestre à moteur

Honoraires d'avocat

Indemnisation - Accident

The University of Pittsburgh Center for International Legal Education (CILE) and Asian Studies Center (ASC) invite you to join us for a timely conference on Deals and Disputes: China, Hong Kong, and Commercial Law on May 18-20, 2021, from 8:00-11:00 a.m. EDT each day.

The May 18 panel will consider the lessons of Changzhou Sinotype Technology Co., Ltd. v. Rockefeller Technology Investments (Asia) in the California courts, considering contract terms, arbitration and litigation strategy, arbitral award and judgment recognition, and the application of the Hague Service Convention.

The May 19 panel will assess international commercial courts and arbitral institutions in Asia, particularly in light of recent developments in Hong Kong.

The May 20 panel will take a broader view of political and legal challenges facing Hong Kong after the National Security Law in June 2020.

Keynote addresses on May 18 and 19 will be given by Professor Susan Finder of Peking University School of Transnational Law, and Antony Dapiran, author of City on Fire: The Fight for Hong Kong.

Registration is free, and can be achieved on the link in the full program for the conference, which is available here.

Pennsylvania lawyers may receive CLE substantive credits for up to 7 hours.

The Asser Institute and the IJI are organising a Masterclass about international B2B contracts and private international law. This Masterclass is in Dutch and aimed at lawyers with an international law practice.

For more information on the programme see here: Masterclass 1 IJI Asser

 

The Asser Institute and the IJI are organising a Masterclass about international B2B contracts and private international law on June 28 and 29, 2021. This Masterclass is in Dutch and aimed at lawyers with an international law practice.

 

For further information see here

by Roxana Banu

The ISS has been hiding in plain sight in the history of private international law since the 1920s. Anyone lucky enough to visit ISS-USA’s archives at the University of Minnesota would be astonished by ISS’s extensive engagement with virtually every aspect of transnational family law. During the first half of the 20th century the ISS left no stone untouched in an effort to devise an international socio-legal framework for cross-border family maintenance claims. It lobbied scholars, consuls, employers, national legislators and international organizations; its global network of social workers worked together to inform women living abroad when their husbands attempted to file divorce proceedings in the U.S.; it experimented with entirely new and imaginative legal arguments to convince U.S. courts to assume jurisdiction over foreign women’s maintenance claims against their husbands living in the U.S.; and it submitted expert evidence to the Child Welfare Committee of the League of Nations.

Unbeknownst to contemporary private international law scholars, the report sent by Ernst Rabel to the League of Nations on cross-border maintenance claims had in fact been commissioned by the ISS and based almost entirely on its case files. The entire project on cross-border maintenance claims was in fact the brainchild of Suzanne Ferriere, ISS’s General Secretary until 1945 and thereafter its assistant director and one of only three women on the International Committee of the Red Cross during WWII.

In the 1930s the ISS was involved in the debates on the nationality of married women at the League of Nations. Unlike other feminist organizations, which were skeptical of the League’s attempt to conceptualize the issue of married women’s nationality as a conflict of laws question, the ISS offered an analysis of its case records precisely to press the League to become more conscious and more precise about the conflict-of-laws dimensions of the issue of married women’s nationality. It continued to press for legal aid for foreign citizens, to help foreigners bring inheritance and property claims either in the U.S. or in their countries of origin and to press U.S. and foreign courts to co-operate with each other in cross-border family law matters.

In between the two World Wars several ISS social workers were responsible for the relocation of Jewish children to the U.S., devising new rules on cross-border guardianship and adoption almost from scratch. After the Second World War ISS personnel collaborated with the United Nations Relief and Rehabilitation Administration in setting up cross-border adoption and guardianship standards for displaced unaccompanied minors. Meanwhile, back in the U.S., ISS members petitioned the US Congress to raise the quota for adopted children and to disallow adoptions by proxy.

Most of the issues the ISS had been working on in the first half of the 20th century belonged to an unchartered private international law territory. With modest funds, ISS branches often engaged in detailed legal research projects. Among many other gems, ISS USA’s archive contains numerous article clippings, extensive correspondence and research inquiries sent to universities, legislators or other social workers in an attempt to piece together private international law concepts and techniques that were unknown even to legal practitioners and scholars at the time.

Recovering the history of ISS’s engagement with private international questions is worthwhile in itself. But even more remarkably, one could zoom in and out of the ISS and thereby begin to write an entirely new history of private international law. Zooming in, one is exposed to a surprising joined history between transnational social work and private international law. As the ISS was pioneering new transnational case-law methods, it placed private international law squarely in its center, to the dismay of both social workers and private international law scholars. Reading social workers’ forays into private international law together with their writings on transnational social work methods and on multiculturalism offers a new window into private international law’s and social workers’ engagements with the foreign, contradictory and paradoxical as they may be. Zeroing in on the ISS as a private international law agent also exposes a whole range of women – social workers, philanthropists, ambassadors’ wives, Hollywood actresses – that are entirely unknown to a field that it yet to write its gendered history.

Zooming out of the ISS offers yet another lens through which to re-write private international law’s history. On the one hand, ISS combined a micro-analysis on individual cases and individual families with a macro-analysis of the geopolitical context causing hardship for families across borders. Tapping into this dual standpoint presses private international law, through the eyes of the ISS, to reconstruct its relationship with migration law and policy and with the field of international relations. On the other hand, moving the analysis from the ISS outward means joining private international law back with the extensive network that the ISS itself was relying on when doing its work. Among many other remarkable figures, this network exposes Jewish women émigrés to the Americas who were using their dual-legal background to help migrants or who had managed to become private international law professors in their own right. For example, although most would be familiar with Werner Goldschmidt’s work in Private International Law, few would know that his sister-in-law, Ilse Jaffe Goldschmidt opened an ISS branch in Venezuela (the Nansen Medal was awarded to its director general, Maryluz Schloeter Paredes, in 1980) and worked extensively on cross-border adoption matters.

Engaging with the history of the ISS means retracing an incredible range of connections between private and public international, migration law and policy, foreign affairs and social work, connections which were often built and fostered by the ISS itself. The archive contains interviews, studies in refugee camps, cross-branches socio-legal research studies, expert opinions offered to a whole range of actors, reports and opinion pieces on a broad set of geopolitical and socio-legal topics, as well as confidential letters sent between the branches cataloging the challenges of their unprecedented work. Whether one is interested to recover the range of private international law projects that the ISS was involved in or engages with the ISS as a window through which to gage a new history of private international law, its extensive archives in every corner of the world are waiting to be explored.

Roxana Banu is a Lecturer in Private International Law at Queen Mary University of London, Faculty of Law. Roxana researches on legal history and feminist perspectives on private international law. She is the author of Nineteenth Century Perspectives on Private International Law (OUP, 2018) and “A Relational Feminist Perspective on Private International Law,” awarded the ASIL Prize for the best paper in Private International Law in 2016. She is currently writing a book on a gendered history of private international law, which includes a more detailed discussion of the role of the ISS in the history of private international law. She offers a brief portrait of the women of the ISS in Roxana Banu, “Forgotten Female Actors in the History of Private International Law. The Women of the International Social Service 1920-1960,” in Immi Tallgren ed., Portraits of Women in International Law (forthcoming with OUP, 2021).

 

originally posted at www.iss-usa.org March 3, 2021

Thanks to Emmanuel Guinchard for the tip-off.

The European Commission is not agreeing to the the accession by the United Kingdom to the Lugano Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters of 2007. The Convention was applicable in the United Kingdom until 31 December 2020 due to the UK’s membership of the European Union. Since that date the UK is no longer Party to the Convention.

Accession to the Convention is limited: it is open to Members of the European Free Trade Association and EU Member States acting on behalf of certain overseas territories (Art. 70 and 71). If other States wish to accede, the unanimous acceptance by the Contracting States is required (Art. 70 and 72,3). As this is an exernal competence of the European Union (see the Lugano Opinion, 1/03 of 2006 by the European Court of Justice), the European Union should decide on the UK’s request for accession.

The European Commission’s refusal of the UK’s request is based on its assessment of the Lugano Convention’s nature as meant for States with a close regulatory integration with the EU and its view that the Hague Conventions should be used for relations between the EU and third States. Hopefully this means signature and ratification by the EU of the 2019 Hague Judgments Convention soon. Currently the Convention has only been signed by Israel, Ukraine and Uruguay and has not yet entered into force (see status).

The 2005 Hague Choice-of-Court Convention is already in force in the EU and in the UK, along with Mexico, Montenegro and Singapore. Besides these states, China, Israel, North Macedonia, Ukraine and the United States have signed but not yet ratified the convention (see status).

See the Commission’s communication.

I am late in reporting  Begum v Maran (UK) Ltd [2021] EWCA Civ 326, in which the Court of Appeal rejected an application for strike-out. I reported on the High Court judgment here and I should add I am instructed for claimant in the case. Oliver Holland, the lead Leigh Day solicitor in the case, discusses its implications together with Rachel Bonner (who was led by Richard Hermer) here.

Coulson LJ held that it is at least arguable (reminder: the specific action that was being discussed was an application for strike-out) that Maran does have a duty of care. His analysis essentially leans heavily on the fact that Maran availed itself of a disposal route, the consequences of which it was much aware of. It is clear that the well-known Bangladesh route to escape health, safety and environmental standards for the dismantling of ships, is questionable under the Basel Convention on Hazardous wastes and their disposal, and that shipowners have been using privity of contract in an attempt to shield themselves from any liability for consequences which are neither unexpected nor infrequent.

Others have written on the duty of care issue and I will focus on the A7 Rome II discussion: the lex specialis for environmental damage – on which I have a paper forthcoming (but to find more time!).  At 78 ff Coulson LJ firstly links the requirement of causality (the use of the flimsy ‘arising out of’) to the non-contractual obligation claimed (here: corporate duty of care), rather than the one immediately following the damage (here: negligence, recklessness causing death). That duty of care does not, it was held, ‘arise out of’ environmental damage. [82]: ‘In essence, it is the duty to take all reasonable steps to ensure that the sale of the vessel for demolition purposes did not endanger human life or health. That duty did not arise out of environmental damage; it had nothing to do with environmental damage at all. It arose out of the complete absence of workplace safety.’ And at 86: ‘even if the court had to consider whether the death (rather than the duty) arose out of environmental damage, the result would be the same…the death arose out of the absence of safe working practices and, in particular, the absence of a safety harness.’ Support is found in scholarly sources suggesting a narrow interpretation of A7; other sources are not discussed (despite having been submitted) and I continue to be convinced such limiting interpretation is not supported by the travaux. Males J, in his mostly concurring opinion, agrees that the last thing on A7 is far from said although he, too, holds that A7 is not engaged in casu.

Lord Justice Coulson obiter considers locus delicti commissi (which would be  the alternative lex causae under A7) and at 91 succinctly holds (pro memoria: obiter) that this would not have been England. There is authority I would suggest for the opposite finding and the judge’s interpretation of Arica Victims, I submit,  leaves room for discussion: at 91 he correctly refers to the Ovre Norrland Court of Appeal having pointed to ‘key decisions’ having been made in Sweden. These to me seem present in current case, too (and here: located in England).

At 110 ff the ordre public argument under A26 Rome II, which could displace the shorter statute of limitation of the Bangladeshi lex causae, for the longer English one, is succinctly dismissed as not meeting A26’s high hurdle. This leaves a narrower (and perhaps curiously indirect) ‘undue hardship’ argument under the E&W Foreign Limitation Periods Act 1984 to be discussed as a preliminary issue at the remanded trial in the High Court.

A most relevant case, also highlighting the many unresolved issues under A7 Rome II.

Geert.

EU Private International Law, 3rd ed. 2021, para 4.54 ff.

Commission / Pologne (Régime disciplinaire des juges)
Principes du droit communautaire
L’avocat général Tanchev invite la Cour à juger que la législation polonaise sur le régime disciplinaire des juges est contraire au droit de l’Union

A joint publication of the Secretariats of UNCITRAL, UNIDROIT and the HCCH, titled Legal Guide to Uniform Instruments in the Area of International Commercial Contracts, with a Focus on Sales, has just been released.

As explained on the HCCH website, the Legal Guide “offers an overview of the principal legislative texts prepared by each organisation, such as the United Nations Convention on Contracts for the International Sale of Goods, the HCCH Principles on Choice of Law in International Commercial Contacts and the UNIDROIT Principles on International Commercial Contracts. It also illustrates how these texts interact to achieve the shared goals of predictability and flexibility. The Legal Guide will be a user-friendly resource for those interested in the adoption, application, and interpretation of uniform contract law.”

Following the UNIDROIT website, “it aims at creating a roadmap to the existing uniform law texts in the area of international sales law prepared by each organization […]. It is an effort to clarify the relationship among them, promoting uniformity, certainty and clarity in this area of the law”.

A significant contribution towards the preparation of the Legal Guide is due to Professors Neil Cohen (USA), Lauro da Gama e Souza Jr (Brazil), Hiroo Sono (Japan), Pilar Perales Viscasillas (Spain) and Stefan Vogenauer (Germany).

The Legal Guide is available in English and will soon be released in other United Nations languages (as it is the case of the previous joint publication of the three organisations on Security Interests, 2012).

More information on the Legal Guide here (video announcement) and here (recording of the International Conference on the forthcoming Tripartite Legal Guide, 22 September 2020).