Agrégateur de flux

In a recent e-mail exchange, Paul Beaumont and Jayne Holliday (both working now at the University of Stirling) drew my attention to Article 14 of the Hague Convention on the civil aspects of international child abduction. The provision is certainly a rarity in the field of ascertaining and applying foreign law, and of recognition. It reads as follows

In ascertaining whether there has been a wrongful removal or retention within the meaning of Article 3, the judicial or administrative authorities of the requested State may take notice directly of the law of, and of judicial or administrative decisions, formally recognised or not in the State of the habitual residence of the child, without recourse to the specific procedures for the proof of that law or for the recognition of foreign decisions which would otherwise be applicable.

The logic of Article 14 appears to be twofold. It is first and  foremost a practical rule: it should lead to speedy decisions on the return of a child, which are fundamental to the working of the Convention.

Its second rationale seems to be dogmatic. According to the Convention’s explanatory report by Elisa Pérez-Vera, at para 119, Article 14 does not address cases of application of foreign law in the narrow sense; it rather “takes it into account” to check whether the claim of wrongful removal is correct:

Since the wrongful nature of a child’s removal is made to depend, in terms of the Convention, on its having occurred as the result of a breach of the actual exercise of custody rights conferred by the law of the child’s habitual residence, it is clear that the authorities of the requested State will have to take this law into consideration when deciding whether the child should be returned. In this sense, the provision in article 13 of the preliminary draft Convention that the authorities ‘shall have regard to’ the law of the child’s habitual residence, could be regarded as superfluous. However, such a provision would on the one hand underline the fact that there is no question of applying that law, but merely of using it as a means of evaluating the conduct of the parties (…)” (emphasis added)

In a similar vein, judicial or administrative decisions on custody rights, the breach of which entails the wrongfulness of the removal (or of the retention, as the case may be), are not really recognized, but work as a piece of proof in the proceedings at the requested State:

… while on the other hand, in so far as it applied to decisions which could underlie the custody rights that had been breached, it would make the Convention appear to be a sort of lex specialis, according to which those decisions would receive effect indirectly in the requested State, an effect which would not be made conditional on the obtaining of an exequatur or any other method of recognition of foreign judgments.

There is no way to dispute the usefulness of Article 14 in practice. I have more doubts regarding the correctness of the conceptual distinction between “applying” a foreign law and “taking [it] into account” (which is usually understood as taking into account “as a matter of act”). The operations are possibly the same in nature; the difference between them, just a question of degree. Furthermore, I believe that in the context of Article 14 foreign law is actually applied. The conduct of the parties cannot be evaluated without looking into what that law prescribes; the authority in the requested State draws the corresponding consequences as to who is the holder of the rights of custody in the case at hand. The assessment of the parties’ conduct comes afterwards. In the same vein, I believe that a decision on custody rights is recognized, in the proper sense of the term, as a decision, and not as a piece of documentary evidence.

What makes the difference is therefore not “what is done” with the foreign law/foreign decision in the context of child abduction. It is rather the limited goal of the application of that law, and of the recognition of the foreign decision, which allows to proceed without resorting to the specific procedures for the proof of foreign law (or for the recognition of foreign decisions), which would normally apply.

Be it as it may, what really matters is what the alternative method – that of taking notice directly of the law of, and of judicial or administrative decisions, of the State of habitual residence of the child before removal or retention- means vis-à-vis quality. That foreign law is not, strictly speaking, applied, does not entail a lesser need for certainty about its contents. The authority in the requested State does indeed not determine the rights of custody. However, her understanding of the foreign legal system is not innocuous: it has immediate effects on the child in terms of return/not return, and therefore, of residence; these, in turn, affect the question of international jurisdiction for a claim on the merits. Furthermore, the view of the requested authority on the custody issue sets a precedent (in a non-technical sense, for it is not binding) for future discussions about parental responsibility.

The assumption that Article 14 supports lower standards of proof of the foreign law (and more lenient conditions of recognition) is only this: an assumption. To date, INCADAT lists 39 national decisions on the provision. In fact, in some of them Article 14 is simply mentioned . The remaining decisions have been rendered in different jurisdictions (Austria, Canada, France, Germany, Israel, US, Switzerland): the sample is hence not good enough for a study aimed at finding out the differences with the usual methods to ascertain foreign law, nor to make any assessment about quality.

Still, it might not be a useless effort. For, if Article 14 proves to work, it may be worth trying it elsewhere (the suggestion, with a question mark, is actually from Professor Beaumont).

Condamné à cinq ans d’emprisonnement en première instance, l’ancien homme d’affaires, reconverti dans la lutte contre la récidive et l’amélioration des conditions carcérales après un passage en prison au mitan des années 1990, a vu sa peine réduite à trois ans en appel. Il reste en détention.

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La chambre de l’instruction saisie sur une demande de remise formulée par le Mécanisme pour les tribunaux pénaux internationaux vérifie si les conditions de remise sont remplies (identité de la personne, production des titres fondant la demande, existence de faits entrant dans la définition posée, absence d’erreur évidente) et, si sa violation est invoquée, le respect des garanties fondamentales accordées à la personne réclamée

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Le Conseil de l’Union européenne a procédé à l’examen de la levée progressive des restrictions temporaires des déplacements non essentiels vers l’UE et a mis à jour dans une recommandation datée du 21 octobre la liste des pays à l’égard desquels les restrictions de déplacement devraient être levées. 

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Thank you Angus Macinnis for flagging RCD Holdings Ltd & Anor v LT Game International (Australia) Ltd [2020] QSC 318 in which  Davis J upheld choice of court in favour of the courts at Macau and held against a stay. The judgment is a good one for comparative purposes.

Claimants, ePayment Solutions Pty Ltd (EPS) and RCD Holdings Ltd (RCD), in their contract with the defendant, LT Game International (Australia) Ltd (LT) (a BVI domiciled company), agreed that any dispute between them would be litigated in Macau. However, when a dispute did arise they commenced proceedings in Queensland. LT entered a conditional appearance and now applies to strike out the claim, or alternatively, to have it stayed as being commenced in this court contrary to the contract.

Article 10 of the contract carries the title Governing law but actually is a choice of court clause – an oddity one sees more often than one might expect in B2B contracts: ‘Any dispute or issue arising hereunder, including any alleged breach by any party, shall be heard, determined and resolved by an action commenced in Macau. The English language will be used in all documents.”

Comparative insight includes the issue of whether A10 us a non-exclusive (an agreement not to object when proceedings are brought in the court designated) or exclusive (an agreement only to bring proceedings in the court designated) choice of court. Davis J settled for exclusive which would also seem to have been the position of both parties, despite some ambiguity at the start of proceedings.

Lex contractus is disputed, and at 27 Davis J settles for Macanese law, based upon factual construct of the contractual intention of the parties. Clearly that choice of court was made for Macau was an important factor – as it is in Rome I for consideration of so-called ‘implied’ choice of law in the event of choice of court made.

A stay on the basis of Covid19 impracticability (ia because of alleged difficulties for witness testimony) is dismissed, ia (at 34) because it is uncertain whether current travel restrictions will still be in place when the case in Macau might be heard. Davis j does suggest that a renewed application for a stay must not be ruled out in light of Covid19 developments, however will be seen against abuse of process: in other words claimants had best not do so lightly.

Geert.

RCD Holdings & Aor v LT Game [2020] QSC 318

Davis J noting that claimants can re-apply, should #Covid19 unduly frustrate proceedings in Macau https://t.co/00DH1VQf9j

— Geert Van Calster (@GAVClaw) November 3, 2020

Today (9 November 2020) ASADIP and UNCITRAL are organising a preparatory conference to the first edition of UNCITRAL Day in Latin America and the Caribbean region (UNCITRAL LAC DAY 2020 – la primera edición del Día de UNCITRAL en América Latina y el Caribe). For more information see here. Free registration here. For other events on UNCITRAL Day click here.

David Hodson is the author of Family Law Leaves the EU – A Summary Guide for Practitioners, published by Jordan Publishing. The book aims to provide family law practitioners with an accessible guide to the law and practice which will apply on the UK’s final departure from the EU on 31 December 2020. The publisher’s blurb reads as follows.

The government has indicated that the UK will not be party to any further EU laws, instead relying on existing international laws (eg Hague Conventions) to which we will be a party in our own right. There will also be new provisions in national law, where previously EU law existed, and some court procedures will change. This invaluable title will provide an overview of the legal position and the practical issues which will arise in all areas of family law, including the preparatory steps which lawyers should take in readiness for departure, so as to advise clients effectively.

More information available here.

Les poursuites disciplinaires et les poursuites pénales peuvent se cumuler sans violer le principe non bis in idem, car les premières ne relèvent pas, comme telles, de la matière pénale ; il en va ainsi des poursuites disciplinaires des médecins, y compris lorsqu’il s’agit d’infliger une sanction d’une certaine sévérité comme l’interdiction de donner des soins aux assurés pendant une période déterminée.

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The programme of the XLIII Seminar of the Mexican Academy of Private International and Comparative Law (AMEDIP) is now available here. As previously announced, the XLIII Seminar will take place on 19-20 November 2020 for the first time online.

Among the topics to be discussed are the 1996 HCCH Child Protection Convention, the 1980 HCCH Child Abduction Convention, the 2019 HCCH Judgments Convention, the 2005 HCCH Choice of Court Convention, the HCCH Guide to Good Practice on the Use of Video-link, Human rights and PIL, the brand new T-MEC / US-Mexico-Canada Agreement (USMCA), digital justice, COVID-19, and alternative dispute resolution.

The meeting will be held via Zoom.

Access details:

https://us02web.zoom.us/j/5554563931?pwd=WE9uemJpeWpXQUo1elRPVjRMV0tvdz09
ID: 555 456 3931
Password:  00000

It will also be transmitted live via AMEDIP’s Facebook page.

Participation is free of charge. The language of the seminar will be Spanish.

For more information, see AMEDIP’s website.

The European Parliament released today a study on “40 years of the Hague Convention on child abduction – legal and societal changes in the rights of a child” and another one on “The Child Perspective in the Context of the 1980 Hague Convention”.

They are attached to this post.

The International Commercial Chamber of the Court of Appeal of Paris (France) delivered a few days ago (3 Novemberr 2020) a decision (RG 19/17529) on the law applicable to insurance with questions involving lois d’application immediate and ordre public.

Summary: “The ICCP-CA, which was seized on referral after a proceeding before the French Cour de cassation, held that the dispute concerning the conditions of the guarantee applicable under an insurance contract concluded between an insurance company and a company both governed by Polish law should be subject to Polish law, pursuant to the general rules of private international law on contractual obligations applicable in this case (§§ 51 to 60). The court dismissed the claim to set aside this law in favor of French law, on the basis of both French mandatory provisions (§ 44 to 48) and French international public policy (§ 61 to 68)”.

The decision is attached to this post.

Pourvoi c/ Cour d'appel de Bordeaux, 7 janvier 2020

Pourvoi c/ Cour d'appel de Papeete, 29 septembre 2020

Tribunal judiciaire de Clermont-Ferrand, 29 septembre 2020

Tribunal pour enfants d'Angers, 29 septembre 2020