Agrégateur de flux

Dear CoL Readers,

While we are all deeply concerned about the still growing dimensions of the coronavirus pandemic, we did not want to give up working on the programme of our conference.

Thanks to the HCCH, the Bonn PIL colleagues and our distinguished speakers, there is now a fantastic programme we would like to bring to your attention in this post (see below).

Meanwhile, we will closely follow the instructions of the University of Bonn as well as the German local and federal governments and travel restrictions in other countries to see whether the conference can take place on site. We have not yet given up optimism in this respect. Yet, safety must be first. This is why we are setting up structures for a video conference via zoom in case we need it. We assume that all of you would agree to proceeding via zoom if necessary. We will take a final and corona risk-averse decision on this during July and keep you posted. Please do not hesitate to register with us (sekretariat.weller@jura.uni-bonn.de) if you wish to be updated by email.

Looking forward to seeing you in Bonn in September!

***

Brexit has become reality – one more reason to think about the EU’s Judicial Cooperation with third states:

The largest proportion of EU economic growth in the 21st century is expected to arise in trade with third countries. This is why the EU is building up trade relations with many states and other regional integration communities in all parts of the world. The latest example is the EU-MERCOSUR Association Agreement concluded on 28 June 2019. With the United Kingdom’s exit of the Union on 31 January 2020, extra-EU trade with neighboring countries will further increase in importance. Another challenge for the EU is China’s “Belt and Road Initiative”, a powerful global development strategy that includes overland as well as sea routes in more than 100 states around the globe.

The increasing volume of trade with third states will inevitably lead to a rise in the number and importance of commercial disputes. This makes mechanisms for their orderly and efficient resolution indispensable. China is already setting up infrastructures for commercial dispute resolution alongside its belts and roads. In contrast, there seems to be no elaborate EU strategy on judicial cooperation in civil matters with countries outside of the Union, despite the DG Trade’s realisation that “trade is no longer just about trade”. Especially, there is no coherent plan for establishing mechanisms for the coordination of cross-border dispute resolution and the mutual recognition and enforcement of judgments. This is a glaring gap in the EU’s policy making in external trade relations.

This is why the Bonn group of PIL colleagues – Moritz Brinkmann, Nina Dethloff, Matthias Lehmann, Philipp Reuss, and Matthias Weller – will host a conference on Friday and Saturday, 25 and 26 September 2020, at the University of Bonn that seeks to explore ways in which judicial cooperation in civil matters between the EU and third countries can be improved by the HCCH 2019 Judgments Convention as an important driver, if not game changer, of legal certainty in cross-border commercial relations.

The list of speakers includes internationally leading scholars, practitioners and experts from the Hague Conference on Private International Law (HCCH), the European Commission (DG Trade, DG Justice), and and the German Federal Ministry of Justice and Consumer Protection (Bundesministerium der Justiz und für Verbraucherschutz)

The Conference is co-hosted by the HCCH as one of the first European events for discussing the HCCH 2019 Judgments Convention. The Conference will be further supported by the Zentrum für europäisches Wirtschaftsrecht at the University of Bonn and The International Litigation Exchange (ILEX).

The Organizers will kindly ask participants to contribute with € 100.- to the costs of the event (includes conference dinner).

Dates:

Friday, 25 September 2020, and Saturday, 26 September 2020.

Venue:

Friday:

Universitätsclub Bonn, Konviktstraße 9, D – 53113 Bonn

Saturday:

Main Auditorium (Aula), Hauptgebäude, Am Hof 21, 53113 Bonn

Registration: sekretariat.weller@jura.uni-bonn.de

Registration Fee: € 100.-

To be transferred to the following account (you will receive confirmation of your registration only after payment was booked on this account):

Bonn Conference 2020

IBAN: DE71 5001 0517 0092 1751 07

BIC:    INGDDEFF (ING-Diba Bank)

 

Programme

Friday, 25 September 2020

1.30 p.m.     Registration

2 p.m.          Welcome note

Prof Dr Wulf-Henning Roth, University of Bonn, Director of the Zentrum für Europäisches Wirtschaftsrecht (ZEW)

Dr Christophe Bernasconi, Secretary General of the HCCH (video message)

2.10 p.m.      Part 1: Chances and Challenges of the HCCH 2019 Judgments Convention

Chairs of Part 1: Prof Dr Matthias Weller / Prof Dr Matthias Lehmann

Keynote: Hague Conference’s Perspective and Experiences

Hans van Loon, Former Secretary General of the Hague Conference on Private International Law, The Hague

1. Scope of application

Prof Dr Xandra Kramer, Erasmus Universiteit Rotterdam

2. Judgments, Recognition, Enforcement

Prof Dr Wolfgang Hau, Ludwig-Maximilians-Universität Munich

Discussion

3.30 p.m.     Coffee Break

4.00 p.m.      Part II: Chances and Challenges of the HCCH 2019 Judgments Convention

Chairs of Part 2: Prof Dr Nina Dethloff / Prof Dr Moritz Brinkmann

1. Jurisdictional filters

Prof Dr Pietro Franzina, Catholic University of Milan

2. Grounds for refusal

Prof Dr Francisco Garcimartín Alférez, University of Madrid

Discussion

5.30 p.m.     Panel Discussion: Prospects for Judicial Cooperation in Civil Matters between the EU and Third Countries

Chairs of Part 3: Prof Dr Matthias Weller / Prof Dr Matthias Lehmann

Colin Brown, Unit Dispute Settlement and Legal Aspects of Trade Policy, DG Trade (tbc)

Andreas Stein, Head of Unit, DG JUST – A1 “Civil Justice”

Dr Jan Teubel, German Federal Ministry of Justice and Consumer Protection

RA Dr Heiko Heppner, Attorney at Law (New York), Barrister and Solicitor Advocate (England and Wales), Chair of ILEX, Head of Dispute Resolution, Partner Dentons, Frankfurt

and perhaps more…

Discussion

7 p.m.          Conference Dinner

  

Saturday, 26 September 2020

9.00 a.m.      The context of the HCCH 2019 Judgments Convention

Chairs of Part 4: Prof Dr Moritz Brinkmann / Prof Dr Philipp Reuss

1. Lessons from the Genesis of the Judgments Project

Dr Ning Zhao, Senior Legal Officer, HCCH

2. Relation to the HCCH 2005 Convention on Choice of Court Agreements

Prof Paul Beaumont, University of Stirling

3. Relations to the Brussels Regime / Lugano Convention

Prof Marie-Elodie Ancel, Université Paris-Est Créteil

4. Brexit…

Dr Pippa Rogerson, Reader in Private International Law, Faculty of Law, Cambridge

Discussion

11:00 a.m.    Coffee Break

11:30 a.m.    Chairs of Part 5: Prof Dr Nina Dethloff / Prof Dr Matthias Lehmann

1. South European Neighbouring and Candidate Countries

Ass. Prof Dr Ilija Rumenov, Ss. Cyril and Methodius University, Skopje, Macedonia

2. MERCOSUR

Dr Veronica Ruiz Abou-Nigm, Director of Internationalisation, Senior Lecturer in International Private Law, School of Law, University of Edinburgh

3. China (OBOR)

Prof Zheng (Sophia) Tang, University of Newcastle

4. International Commercial Arbitration

Jose Angelo Estrella-Faria, Senior Legal Officer UNCITRAL Secretariat, International Trade Law Division Office of Legal Affairs, United Nations, Former Secretary General of UNIDROIT

Discussion

1.30 p.m.     Closing Remarks

Dr João Ribeiro-Bidaoui, First Secretary, HCCH

 

William S. Dodge (University of California, Davis) has published The New Presumption against Extraterritoriality in the Harvard Law Review.

Canons of statutory interpretation are sometimes said to promote continuity and stability in the law. Yet it is widely acknowledged that canons themselves often change. The presumption against extraterritoriality is a prime example. It evolved from a rule based on international law, to a canon of comity, to a tool for finding legislative intent. The presumption then fell into disuse for nearly forty years until it was reborn in EEOC v. Arabian American Oil Co. (Aramco) and substantially revised in Morrison v. National Australia Bank Ltd.

This Article makes three contributions. First, it describes the evolution of the presumption against extraterritoriality over two centuries, providing a detailed account of change in an important canon of interpretation. Second, the Article describes the new, post-2010 presumption, arguing — contrary to the conventional wisdom — that the current version of the presumption is superior to previous ones. Third, the Article addresses the problem of changing canons. It argues changing canons constitute a form of dynamic statutory interpretation, which imposes certain responsibilities: to justify the changed canon in normative terms, to explain the need for change, and to mitigate the transition costs.

The article can be freely accessed here.

This item has been in the queue a long time – apologies. Thank you Marco Vogels for reporting end of 2019 on the Rotterdam court’s approach re privilege in ECLI:NL:RBROT:2019:7856, a criminal prosecution involving Shell. Marco’s report is most complete and I am happy to refer.

Compare the Dutch approach to my earlier reports on the issue in England and in the US. The Rotterdam court takes the law of the place of establishment of the (self-employed) solicitors as the connecting factor, ditto for in-house lawyers (on which The Netherlands takes an unusual (bu continental European standards) position of professional privilege). However the court also held that privilege falls away for the whole in-house legal department and all its lawyers, foreign established or not, if the head of legal is member of the Executive Committee.

Geert.

Cour d'appel d'Aix en Provence, chambre correctionnelle

Conseil des prudhommes de Paris, Section industrie, Chambre 1

Tribunal de première instance de Nouméa, 17 février 2020

Springer has recently published a new volume on Private International Law Aspects of Corporate Social Responsibility in the series Ius Comparatum – Global Studies in Comparative Law. The book has been edited by Catherine Kessedjian (University Panthéon-Assas Paris II) and Humberto Cantú Rivera (Universidad de Monterrey, Mexico).

This book addresses one of the core challenges in the corporate social responsibility (or business and human rights) debate: how to ensure adequate access to remedy for victims of corporate abuses that infringe upon their human rights. However, ensuring access to remedy depends on a series of normative and judicial elements that become highly complex when disputes are transnational. In such cases, courts need to consider and apply different laws that relate to company governance, to determine the competent forum, to define which bodies of law to apply, and to ensure the adequate execution of judgments. The book also discusses how alternative methods of dispute settlement can relate to this topic, and the important role that private international law plays in access to remedy for corporate-related human rights abuses.This collection comprises 20 national reports from jurisdictions in Europe, North America, Latin America and Asia, addressing the private international law aspects of corporate social responsibility. They provide an overview of the legal differences between geographical areas, and offer numerous examples of how states and their courts have resolved disputes involving private international law elements. The book draws two preliminary conclusions: that there is a need for a better understanding of the role that private international law plays in cases involving transnational elements, in order to better design transnational solutions to the issues posed by economic globalisation; and that the treaty negotiations on business and human rights in the United Nations could offer a forum to clarify and unify several of the elements that underpin transnational disputes involving corporate human rights abuses, which could also help to identify and bridge the existing gaps that limit effective access to remedy. Adopting a comparative approach, this book appeals to academics, lawyers, judges and legislators concerned with the issue of access to remedy and reparation for corporate abuses under the prism of private international law.

More information is available here.

Tribunal judiciaire de Bobigny, 17ème chambre correctionnelle

Tribunal judiciaire de Poitiers, chambre correctionnelle

By virtue of an ‘Act of Legislative Content’ pursuant to Article 44 Greek Constitution, the Hellenic Republic passed on April 13 a series of urgent measures for the overall protection of the public against the virus. Among the multitude of provisions emanating from various ministries, four articles feature an identical overriding mandatory rule.

In particular, the rule concerns four categories: Cancellation of flights [Article 61]; cancellation of marine transport (carriage of passengers) [Article 65]; package travel and linked travel arrangements [Article 70]; and contracts between tourism industry enterprises [Article 71]. The content of the provisions is common: instead of reimbursement, it offers the option of vouchers by carriers and businesses in the respective branches.

The wording is the following:

Provided that the pertinent rights are regulated by EU law, the above provisions shall additionally apply mandatorily to contracts concluded between the parties, irrespective whether they agreed on the application of Greek or foreign law.

 

Understandably, the above provisions raise interesting questions of PIL; Matthias Lehmann provided a first glance of the potential problems here.

In Terre Neuve SARL & Ors v Yewdale Ltd & Ors [2020] EWHC 772 (Comm), Bryan J entertains almost the entire jurisdictional chapter of the Handbook.

The proceedings are concerned with the alleged misappropriation of a sum of €10.6 million paid by the First Claimant (“Terre Neuve”) to the First Defendant (“Yewdale”) between July 2009 and September 2012, and thereafter allegedly misapplied with the alleged participation of other Defendants. The sums were paid pursuant to a tax optimisation scheme ultimately for the benefit of the Third Claimant (“Mr. Zahut”), who beneficially owned Terre Neuve and the Second Claimant (“Largely”). The scheme was allegedly created by a Mr. Sasson (now deceased), who gave tax advice through his company, the Third Defendant (“GPF”) and controlled Yewdale (an English company) and the Second Defendant (“REDS”) (a New York company).

In this preliminary judgment, plenty of the defendants challenge jurisdiction, even if as discussed at 11 ff, following judgment by Hancock J in [2019] EWHC 1119 (Comm), confirmed in [2019] EWHC 1847 (Comm), the action is already proceeding in England against Yewdale (which has been found to be a valid anchor defendant per Article 4 Brussels Ia) as well as a number of the overseas defendants: both those domiciled in Switzerland, and elsewhere. Co-defendants in current case were not involved in those earlier hearings.

Firstly, GPF, third defendant, challenges jurisdiction under Article 23 Lugano, more or less but not quite the same as Article 25 BIa. At 22 ff Bryan J cuts too many corners in my view. He extends CJEU precedent on Brussels I and Ia without question to Lugano construction. He unhesitatingly adopts English law (with Fiona Trust in the authority driver’s seat and with reference to the recent Etihad case) as the lex causae for the choice of court agreement. This is as lex fori additi I assume; the actual text of the choice of court agreement is not included in the judgment lest I looked over it however one can deduct the choice points to Switzerland. He is right in holding that the answer to the contractual construction of the choice of court agreement cannot be found in either Lugano or Brussels itself.

At 44 ff he decides that Claimants’ claims do not fall within the scope of any of the jurisdiction clauses in the Written Agreements, pointing away from England.

Next, a group of co-Defendants, who the Claimants allege were involved in and/or benefited from the misappropriation, challenge the jurisdiction of the English Court on various grounds, inter alia: that the claims against them are not sufficiently closely connected to be heard with the claims against the other Defendants in this jurisdiction, pursuant to Article 6(1) Lugano, and should instead be tried in Switzerland pursuant to Article 2 Lugano; that the claims against them would be more conveniently heard in Switzerland; that bringing proceedings against them in England is an abuse of process; that they should be tried in Switzerland pursuant to Article 5 Lugano; that proceedings against them in England are a breach of their rights under Article 6 ECHR; and that various agreements contain jurisdiction clauses which prevent the English Court from hearing the case against them.

In short (note all the authority he employs has been reviewed on this blog, both CJEU (e.g. Melzer) and English) Bryan J finds the cases are clearly related under Article 6 Lugano; forum non conveniens must not be entertained; and there is no abuse of EU law (a popular part of jurisdictional challenge following Vedanta); some of the defendants have submitted; Article 5 Lugano’s forum contractus is irrelevant for it only brings additional, not exclusive jurisdiction; Article 6 ECHR is clearly not breached (practical difficulties of attending, for instance, may be solved by modern means); arbitration in New York first of all does not engage an EU court and secondly of course arbitration is exempt from Lugano.

Finally the one co-defendant domiciled in Israel is nevertheless pulled into the English jurisdictional bath by application of residual English rules (serious issue to be tried; necessary and proper party).

Quite a lot to discuss by way of preliminary jurisdictional issue…

Geert.

 

A Lugano /Brussels I jurisdictional fest. Includes consideration of anchor defendants, A25 choice of court, A4 jurisdiction. https://t.co/vyrRJ9zIkS

— Geert Van Calster (@GAVClaw) March 31, 2020

On 1 April 2020, the UK Supreme Court ruled in Aspen Underwriting Ltd v Credit Europe Bank on the concept of insurance matters under the Brussels I bis Regulation and the scope of the protection it offers.

The background of the case was the loss of a vessel which took fire and then sank in the Gulf of Aden in 2013. The owners of the vessel negotiated a settlement agreement with the insurers (Aspen Underwriting) for a sum of $ 22m.

Before the loss, a Dutch Bank, Credit Europe, had funded the re-financing of the vessel and, in exchange, was assigned the insurance policy. However, the Bank did not participate in the negotiations after the loss and, at the request of the owners, issued a letter to the insurers requesting that they pay any claim to a nominated company, which the insurers eventually did.

Three years after the loss, it appeared that the owners had deliberately sunk the vessel in the Gulf of Aden. The insurers sued both the owners and the bank in London pursuant to an exclusive jurisdiction clause contained in the insurance policy. The bank challenged the jurisdiction of the English courts.

Two issues arose. The first was whether the jurisdiction clause was binding on the bank. The second was whether the bank could benefit from the special provisions relating to insurance matters in the Brussels Ibis Regulation, in particular Art 14 which provides that insurers may only bring claims in the court of the domicile of the beneficiary of the insurance.

Assignment of the Jurisdiction Clause

The bank was not a signatory of the insurance policy. It had been assigned the policy. Under the case law of the CJEU (Coreck, Case C-387/98), a third party will be bound by a clause if it became a successor to a party under the applicable national law. In this case, the applicable national law was English law.

The Supreme Court held that, under English law, the bank was not bound by the jurisdiction clause.

26. The Bank’s entitlement to receive the proceeds of the Policy in the event that there was an insured casualty rests on its status as an equitable assignee. It is trite law that an assignment transfers rights under a contract but, absent the consent of the party to whom contractual obligations are owed, cannot transfer those obligations (…). An assignment of contractual rights does not make the assignee a party to the contract. It is nonetheless well established that a contractual right may be conditional or qualified. If so, its assignment does not allow the assignee to exercise the right without being subject to the conditions or qualifications in question.

The bank, therefore, could have asserted its assigned rights in a way that was inconsistent with the terms of the Policy, including the jurisdiction clause. But the Supreme Court held that the bank had not:

29 In the present case the Bank did not commence legal proceedings to enforce its claim. Indeed, it did not even assert its claim but left it to the Owners and the Managers to agree with the Insurers the arrangements for the release of the proceeds of the insurance policy by entering into the Settlement Agreement. It is not disputed that the Bank was not a party to the Settlement Agreement and the Bank derived no rights from that agreement. The Letter of Authority, which the Bank produced at the request of the Owners and the Managers, enabled both the Insurers and Willis Ltd to obtain discharges of their obligations and to that end it was attached to the Settlement Agreement. The Letter of Authority facilitated the settlement between the Insurers and the Owners and provided the Owners/Managers with a mechanism by which the Bank as mortgagee, assignee and loss payee could receive its entitlement. At the time of payment of the proceeds of the Policy there was no dispute as to the Bank’s entitlement and no need for legal proceedings. There was therefore no inconsistency between the Bank’s actions and the exclusive jurisdiction clause. The Bank therefore is not bound by an agreement as to jurisdiction under article 15 or article 25 of the Regulation.

Matters Relating to Insurance

If the jurisdiction clause did not Apply, what was the applicable ground for jurisdiction? Was it the general rule for misrepresentation (Art 7(2)), or could the bank benefit from the special provisions in the Brussels Ibis Regulation on matters relating to insurance?

The insurers argued that these provisions were only available if the subject matter of the claim was, at least in substance, a breach of an obligation contained in, and required to be performed by, an insurance contract. The Supreme court rejected the argument as follows (from the Press Sumary of the Court):

The Supreme Court finds that the Insurers’ claims against the Bank are “matters relating to insurance” within the meaning of section 3 of the Regulation [41]. The Supreme Court notes that the title of section 3 is drafted in broader language than other sections of the Regulation, which refer to individual contracts [35]. It is also significant that the scheme of section 3 is concerned with the rights not only of parties to an insurance contract but also of beneficiaries and injured parties, who will typically be non-parties [36]. The recitals to the Regulation do not operate to narrow the scope of section 3 [37]. Whereas EU case law indicates that articles derogating from the general rule in article 4 should be interpreted strictly, article 14 operates to reinforce article 4 and so need not be read narrowly [38]. Even if section 3 were to apply only to claims based on a breach of an individual insurance contract, the insurance fraud alleged by the Insurers would inevitably entail a breach of the Policy [40].

Is there a Weaker Party Exception for Insurance Contracts?

Finally, the lower courts had ruled that the rationale for the special provisions on insurance matters were to protect weaker parties, and that the bank was not one.

The argument is rejected by the Supreme Court on the following grounds (from the Press Sumary of the Court):

The Supreme Court holds that there is no “weaker party” exception to the protection of article 14 [43]. Article 14 protects certain categories of person because they are generally the “weaker party” in a commercial negotiation with an insurance company, not because of their individual characteristics [44]. Whilst recital (18) explains the policy behind section 3, it is the words of article 14 which have legal effect [45]. Article 14 refers to the policyholder, the insured and the beneficiary without further qualification and derogations from the jurisdictional rules in matters of insurance must be interpreted strictly [46, 57]. In any case, it would undermine legal certainty if the applicability of section 3 were to depend on a case by case analysis of the relative strength or weakness of contracting parties. This is why the Court of Justice of the European Union (“CJEU”) has treated everyone within the categories identified in article 14 as protected unless the Regulation explicitly provides otherwise [47-49]. The CJEU only has regard to recital (18) in deciding whether to extend the protections of article 14 to persons who do not fall within the identified categories, not to decide whether a particular policyholder, insured or beneficiary is to be protected [50-56]. Further, in deciding whether to extend the protections of article 14 in this way, the CJEU seeks to uphold the general rule in article 4 [43].

Many thanks, Dr Richard Schmidt for signalling and reviewing  the recent Hungarian Supreme Court judgment (in Hungarian) discussing unilateral aka asymmetric aka hybrid choice of court. I do not have Hungarian and happily rely on Richard’s analysis and review.

As Richard reports, the contract was governed by the law of Liechtenstein and provided that any legal disputes would be brought before the court of Vaduz (Liech). However, the claimants had the option of seeking the performance of the contract before the courts of the defendant’s domicile. The defendant failed to pay the service charges and the claimants sued him in Hungary.

Upon appeal it seems the lower courts had held that choice of court ex-EU is not covered by Brussels Ia (compare CJEU Gothaer) and stayed the case in favour of the court at Vaduz. The Supreme Court however in principle would see to have upheld the choice of court provision as exercised by the claimant even if it decided the case ultimately on a finding of submission.

As I said I do not read Hungarian, text search however does not suggest that the SC looked at the issue at all viz Brussels Ia. Which is odd.

Richard justifiably refers to the approaches of both the English (see e.g. here) and the French Courts (contrast Rotschild with Apple). Thankfully there is now also the volume edited by Mary Keyes, looking comparatively at the issue (Michiel Poesen and I contributed the Belgian chapter).

Geert.

(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 2, Heading 2.2.9, Heading 2.2.11.1, Heading 2.2.11.2 .

 

 

Most interesting Hungarian SC judgment on asymmetric choice of court.
Case in the end turned on submission (voluntary appearance). Adopts an approach on such unilateral jurisdiction clauses somewhere between the EN and (former) FR approach. https://t.co/u2a5mpYBss

— Geert Van Calster (@GAVClaw) March 11, 2020

Written by Elijah Granet

In a recent decision of the Family Division of the English and Welsh High Court—VB v TR (Re RR) [2020] EWFC  28, Mr Justice Mostyn highlighted a lacuna in the protection of children from abduction under the 1980 Hague Convention on the Civil Aspects of International Child Abduction (‘the Convention’).  As a result of what Mr Justice Mostyn (at para 7) refers to  as a ‘colonial anachronism’, unconsented removals of children from the British overseas territory of Bermuda to the UK proper fall outside the remit of either the convention or domestic law.

Facts

VB and TR are parents from Bermuda with a young son, RR.  In 2019, TR removed RR from Bermuda secretly, without the consent of VB, and in violation of Bermudian court orders.  The UK ratified the 1980 Convention on the Civil Aspects of International Child Abduction in 1986 and implemented it domestically by way of the Child Abduction and Custody Act 1985.  Section 28(1)(c) of that Act enables the UK to extend the effect of the Convention to Overseas Territories by means of an Order in Council.  However, Bermuda, which enjoys full internal self-governance (with its own laws, parliament, and courts) instead passed the International Child Abduction Act 1988, which essentially transposed the 1985 Act into Bermudian law.  As a consequence, the UK made an Article 39 Notification  declaring that the Convention applied to Bermuda, which is now listed in the annex of authorities required by Article 18 of the Convention.

Decision

As both Bermuda and the UK are signatories to the Convention, one would expect that arrangements for the return of RR could be easily carried out.  Mr Justice Mostyn notes (at para 12), if TR had gone to the USA (or indeed, any state other than the UK), the Convention would unquestionably applied as Bermuda is listed in the aforementioned annex of authorities.  The problem arises because, for the purposes of the Convention, the UK and Bermuda are a single state party; therefore, because there is no ‘international’ element to child abduction between the UK and Bermuda, the Convention is not considered to apply.  This ‘counterintuitive’   (para 21) state of affairs has caused confusion, including a 2014 ruling which (mistakenly) held that Bermuda is not a party to the Convention.

Of course, there is no inherent problem with the Convention being inapplicable between different British jurisdictions. For example, if a parent who removed a child from  Northern Ireland to England against a court order, the English court would automatically recognize the Northern Irish court order under the Family Law Act 1986, s 25, which provides for mutual enforcement of family court orders across the UK. However, that Act does not apply to Bermuda, because Bermuda is not a part of the United Kingdom (whatever the Convention might say).  A Bermudian court is, for all intents and purposes, a foreign court in the eyes of the law of England and Wales.

Thus, there is a paradoxical and frustrating outcome: for the purposes of the Convention, Bermuda is part of the UK, but, for the purposes of  English and Welsh family law, Bermuda is a foreign country. This is contrary to the intention of both the Bermudian and British Parliaments in implementing the Convention: namely, to prevent the unlawful abduction of children. The result is that Mr Justice Mostyn, rather than beginning with the presumption that RR should be returned (as he would under the Convention) or automatically implementing the Bermudian court’s order (as he would with a court from a ‘domestic’ UK jurisdiction), was forced to essentially ignore the Bermudian court’s order, and to circuitously employ a complex legal test under the Children Act 1989, s 1(1) to determine if it would be in the interests of the welfare of RR for him to be returned to Bermuda. Mr Justice Mostyn ultimately held that it was in the child’s best interests to return to Bermuda, albeit at a time more conducive to international travel than the current pandemic. The only alternative route would be to employ the test for the recognition of foreign custodial orders set out by the Privy Council in C v C (Jersey) [2019] UKPC 40, which focuses on questions of public policy rather than the child’s welfare.

Comment

The lacuna in the UK’s regime for protecting against child abduction is, as Mr Justice Mostyn correctly put it (at para 12), ‘an embarrassment’. The defect in this very important area of the law was so severe that the judge felt it appropriate to state (in the same paragraphs) , bluntly, ‘the law needs to be changed’—either to add Bermuda (and other overseas territories) to the domestic list of recognised Hague Convention authorities,  or to extend the automatic recognition of orders under the Family Law Act to all British Overseas Territories. Either option would be a welcome and necessary respite from the current state of affairs, by which abduction from a territory party to the Convention (Bermuda) to another party (the UK) is not covered by the law.  In a matter as serious as this, it is astonishing that, two decades after Bermuda joined the Convention, there is still no UK framework for ensuring the swift return of abducted children to their homes.

 

The Max Planck Institute Luxembourg has launched a call for applications for PhD scholarships in 2021.

Advanced doctoral students working in comparative procedural law, international procedural law and adjudication are invited to apply by 15 May 2020. While proficiency in English is compulsory to be able to participate in the Institute’s scientific activities, the call is also open to doctoral candidates writing their thesis in a language other than English.

The scholarship offers young scientists the opportunity to stimulate their scientific inspiration and advance their research in a dynamic environment. In addition to a monthly grant of 1.500 €, the selected candidates will be offered a workstation in the reading room, and will have the opportunity to participate in the Institute’s scientific activities.

To apply, the interested candidates meeting the requirements of the call must submit the following documents, in English: a cover letter (max. 1 page), stating the motivation for their application, the correlation between the topic of their research and the Institute’s areas of research, and the desired time frame for the scholarship stay; an up-to-date curriculum vitae, with an indication of the class of degree awarded (undergraduate and postgraduate, if relevant); a summary of the PhD project (max. 2 pages), including subject, description and work plan; two letters of recommendation (including one from the PhD supervisor, with his/her contact details).

More information about the call is available here.

Contact persons: Christiane Göbel & Viktoria Drumm, scholarship@mpi.lu.

Research demonstrates that the permanent income loss for the Asia-Pacific region, including India, from the impact of COVID-19 to be $620 billion as of March 24, 2020. It is undeniable that the pandemic has not only resulted in the loss of human health and life but has also adversely affected the Indian economy. A United Nations labour report states that the Coronavirus has impacted tens of millions of informal sector workers as of 8th April 2020, and is predicted to put around 2 billion more people at risk. The Indian economy has been severely hit since most of the Indian population consists of daily wage workers. On 24th March 2020, the Prime Minister invoked his powers under Sec.6(2)(i) of the National Disaster Management Act, 2005, to enforce a lockdown for an initial period of 21 days in the country with effect from 25th March 2020. The “total” lockdown has now been extended until 3 May 2020 and, will be treated under force majeure as per the Government order. The current scenario where India is put under what is reported to be the “world’s most stringent lockdown” (also referred to as Lockdown 2.0) has forced millions of persons out of work, with the hardest hit being the poor, including the daily wage earners and migrant workers. Besides, airports, private clinics and most other shops providing daily essentials have shut.

Drawing from the situation in other countries, India reflected on its own capacity to prevent pandemic considering the resources available in the country. This is a country of 1.3 billion people and the healthcare system in place is very fragile. The latest National Health Profile 2019, released in October 2019, shows India’s public expenditure on health has been less than 1.3% of the GDP for many years. The investment in public healthcare is one of the lowest in the world as the country is more driven towards private investment in healthcare. This will result in human cost because the treatment cost, which involves vaccines, tests and medical facilities, will be more than what most of the population will be able to afford. Looking at the lack of accessibility and affordability to medical care the Prime Minister has announced a public charitable trust under the name of ‘Prime Minister’s Citizen Assistance and Relief in Emergency Situations Fund’ (PM CARES Fund)’ with the Prime Minister as the Chairman of the trust. In face of such a high-risk situation, the WHO Country Office for India is working closely with the Ministry of Health and Family Welfare (MoHFW) to strengthen surveillance, build the capacity of the health system and optimize the ‘window of opportunity’ created by mandatory physical distancing in India. Even though such rampant measures have been taken, India is still not fully equipped to deal with a full-scale pandemic.

The outbreak and the consequent Government decision have resulted in an overwhelming financial/economic loss to the Indian population. People have been banned from leaving homes and supply to all ‘non-essential’ commodities has been cut-off to prevent a further spread of the deadly virus, which originated in Wuhan, China. The recent times additionally witnessed the Indian Government’s order to blacklist the 960 foreigners who participated in the Tablighi Jamaat Meetings as they became a key source for the spread of Coronavirus in India. These foreigners violated the terms of their tourist visas by attending an Islamic congregation at the Nizamuddin Market in New Delhi in March. The foreigners were found in different states all over the country and as on 2nd April, 245 COVID-19 cases and about 12 deaths in the country were found to have links with the Tablighi Jamaat Meeting.

Recently, citizens of the United States filed a class-action suit filed against the Chinese Government for damages suffered as a result of “incalculable harm” done to the plaintiffs. Whether the near future will see a similar class-action suit by Indian citizens against the Chinese Government and the 960 Tablighi Jamaat foreigners, remains to be seen.

Under India’s conflict of law rules, which remain uncodified, an Indian court can assume jurisdiction by being the place where the cause of action – in this case, the tort occurred. Sections 9 and 86 of the Code of Civil Procedure 1908 empowers the courts in India to try all suits, which result in damage caused by negligence, including those initiated by Indian citizens against foreign entities. At the same time, India lacks any coherent mechanism to identify the applicable law that will govern damages arising from such transnational torts. Rigidly following the common law principles, India continues to hold fast to the traditional principle of ‘double actionability’ – a rule, which has long been discarded by all other common law jurisdictions including Australia and Canada.

Under the present rules, the plaintiff(s) suing before an Indian court will have to prove that the act of the Chinese government in concealing the nature of the virus and failing to take appropriate steps to contain it, was actionable under the Chinese and Indian law – upon which, the suit will be governed concurrently by the Chinese and the Indian law of tort.

Under the Indian law of torts, the plaintiffs will need to prove a breach in a duty of care on the part of the Chinese government and the Tablighi Jamaat attendees who were foreign nationals, which caused the tort of negligence. The Indian law of torts is based on the principles of Common Law as iterated in Rajkot Municipal Corpn. v. Manjulben Jayantilal Nakum (1992 ACJ 792). According to the common law principles as evolved by the House of Lords, negligence signifies failure in executing a degree of care which should have been exercised by the doer. The essentials for establishing negligence under the Indian law may be summarized as follows. Firstly, that the defendant owed a “legal” duty of care towards the plaintiff. Secondly, that there was a breach of this duty; and thirdly, that the plaintiff experienced damage (including economic loss) as a result of such breach by the defendant.

In the international realm, China’s ‘duty of care’ towards India and its citizens may be traced through the relevant provisions of the International Covenant on Economic, Social and Cultural Rights and the International Health Regulations of 2005. Under Article 12(2)(c) of the International Covenant on Economic, Social and Cultural Rights, the Chinese government was under a duty to take measures for the “(t)he prevention, treatment and control of epidemic, endemic, occupational and other diseases” for nationals and non-nationals alike. However, this provision does not extend to economic loss. In particular, China’s duty of care towards non-nationals may be recognised under the International Health Regulations of 2005 as well. As per Article 6 of the IHR, China was required to notify the WHO of the “events which may constitute a public health emergency of international concern within its territory”. Hence, China owed a legal duty of care towards its non-nationals.  This legal duty towards the non-nationals can further be extended to infer as a duty towards other countries and their nationals.

Since China failed to notify the World Health Organisation according to the International Health Regulations of 2005 within sufficient time despite the given indications towards the public health concern, it has negligently breached its duty of care towards the rest of the world.  Dr. Li Wenliang was the first to create awareness and intimate the Chinese Government about the hazardous virus. Instead of adopting effective measures, the Chinese Government reprimanded the scientist. This is depictive of the negligent conduct of the Chinese Government.

On the other hand, the legal duty of care of the 960 foreigners can be established under section 14 of the Foreigners Act, 1946 insofar they had partaken in a religious activity which violates the terms of their tourist visas. Besides, sections 6(2)(i) and 10(2)(l) of the Disaster Management Act, 2005 will also be applicable due to their failure to adhere to social distancing guidelines issued by the government in wake of the COVID-19 outbreak.

At the same time, having regard to the present principles of the Indian conflict of law, no claim before an Indian court for damages in relation to the outbreak will sustain unless the plaintiffs are simultaneously able to prove negligence on the part of the Chinese government and/or under each of the laws of tort of 960 Tablighi Jamaat attendees. Suits initiated in relation to the pandemic in India could, therefore, act as a revolutionary moment for India to ramp-up its conflict of law principles – especially in matters arising from cross-border torts.

That said, the spread of COVID -19 has undoubtedly been one of the most challenging times for the judiciary in all the countries. Countries like the Netherlands and Germany have proven its judiciary to be effective and efficient during the times of crisis by adapting to the digital mode in adjudicating disputes.  In the largest democracy of the world, India, the judiciary has always remained under challenge due to the overwhelming number of litigation matters approaching courts every day.

The humongous load of backlog along with current lockdown had come as a huge blow and stir to the judicial system in India. The Supreme Court has, thus, decided that vital matters before it would be conducting video conferencing.  The digitalisation of the judiciary has been a huge respite especially in the case of granting bails and avoiding overcrowding of the prison to control the spread of the virus. All other smaller courts (including the High Court are shut during the lockdown).

Sécurité alimentaire