A few weeks ago the second edition of Talia Einhorn’s Private International Law in Israel was published by Wolters Kluwer Law & Business (www.kluwerlaw.com; ISBN 9789041145888). The second edition is a wholly updated and expanded version of the first, which appeared in 2009. While the first edition comprised of 393 pages, the second edition runs to 552, as to make provision for additional topics and for the many changes in Israeli private international law since 2009. The author provides the reader with a restatement of positive conflicts law in Israel, of which the most sources are only available in Hebrew, be it case law or legislation. She not only “untangles the web of Israeli sources of law affecting foreign legal relationships” (publisher’s website), but also provides guidance on the further development of the law on the basis of comparative research.
The fifth edition of Christopher Forsyth’s Private International Law. The Modern Roman-Dutch Law, including the Jurisdiction of the High Courts (2012) appeared recently. The author is professor of public law and private international law at the University of Cambridge. This work is the standard textbook on the private international law applicable in South Africa and most of its neighbouring countries (Botswana, Lesotho, Namibia, Swaziland and Zimbabwe), as well as in Sri Lanka. Of interest to the foreign reader may be especially the sections on classification (76-90; the decision Society of Lloyd’s v Price; Society of Lloyd’s v Lee 2006 5 SA 393 (SCA) is regarded by the author as “the leading decision on characterization in the common-law world” (v)) and on the influence of constitutional values on private international law (19-20), including in the context of arrest to found or confirm jurisdiction (196), polygamous marriages (289-291), same-sex marriages (300-301), the proprietary consequences of marriages (302-303) and the enforcement of foreign judgements (468). More information can be found on the website of the publisher: www.juta.co.za.
- Bennett and Kopke “Characterization and ‘gap’ in the conflict of laws” 2008 South African Law Journal 62
- Eiselen “Goodbye arrest ad fundandam. Hello forum non conveniens?” 2008 TSAR 794
- Harder “Statutes of limitation between classification and renvoi: Australian and South African approaches compared” 2011 ICLQ 659
- Neels “Falconbridge in Africa” 2008 Journal of Private International Law 167
- Neels “Consumer protection and private international law” 2010 Obiter 122
- Neels “South Africa” in Fernandez Arroyo (ed) Consumer Protection in International Private Relationships (2010) CEDEP 415
- Neels “External public policy, the incidental question properly so-called and the recognition of foreign divorce orders” in Boele-Woelki, Einhorn, Girsberger and Symeonides (eds) Convergence and Divergence in Private International Law. Liber amicorum Kurt Siehr (2010) Eleven International Publishers / Schulthess 331 (reprint in 2010 TSAR 671)
- Neels and Fredericks “The music performance contract in European and Southern African private international law” 2008 Tydskrif vir die Hedendaagse Romeins-Hollandse Reg / Journal of Contemporary Roman-Dutch Law 351 and 529
- Neels and Fredericks “Tacit choice of law in the Hague Principles on Choice of Law in International Contracts” 2011 De Jure (forthcoming)
- Neels and Wethmar-Lemmer “Constitutional values and the proprietary consequences of marriage in private international law” 2008 TSAR 587
- Oppong “Roman-Dutch law meets the common law on jurisdiction in international matters” 2008 Journal of Private International Law 311
- Oppong “Enforcing judgments of the SADC Tribunal in the domestic courts of member states” 2010 Monitoring Regional Integration in Southern Africa Yearbook 115
- Oppong “Inter-institutional relations: public-private international law dimensions” chapter 8 in Oppong: Legal Aspects of Economic Integration in Africa (2011) Cambridge University Press
- Oppong “Interstate relations, economic transactions and private international law” chapter 9 in Oppong: Legal Aspects of Economic Integration in Africa (2011) Cambridge University Press
- Roodt “Recognition of Muslim marriages in South Africa: a conflicts perspective” 2008 The International Journal of Diversity in Organisations, Communications and Nations 137
- Roodt “Party autonomy in international law of succession” 2009 TSAR 241
- Roodt “Conflicts of procedure between courts and arbitral tribunals in Africa: an argument for harmonization” 2010 Tulane European and Civil Law Forum 65
- Roodt “Autonomy and due process in arbitration: recalibrating the balance” 2011 European Journal of Law Reform (forthcoming)
- Roodt “Conflicts of procedure between courts and arbitral tribunals with particular reference to the right of access to court” 2011 African Journal of Comparative and International Law 236
- Schulze “Conflict of laws” 2008 Annual Survey of South African Law 167
- Schulze “International jurisdiction in claims sounding in money: is Richman v Ben-Tovim the last word?” 2008 South African Mercantile Law Journal 61
- Schulze “Conflict of laws” 2009 Annual Survey of South African Law 134
- Schulze “Arbitration agreements and jurisdiction in terms of the Judgment Regulation” 2010 The Comparative and International Law Journal of Southern Africa 68
- Schulze “Conflict of laws” 2010 Annual Survey of South African Law (forthcoming)
- Sibanda “Jurisdictional arrest of a foreign peregrines now unconstitutional in South Africa” 2008 Journal of Private International Law 167
- Van Niekerk “Choice of English law and practice in a ‘South African short-term policy’ of marine insurance: jurisdiction and applicable law” 2010 TSAR 590
- Van Niekerk “Choice of foreign law in a South African marine insurance policy: an unjustified limitation of party autonomy?” 2011 TSAR 159
- Wethmar-Lemmer “When could a South African court be expected to apply the United Nations Convention on Contracts for the International Sale of Goods (CISG)?” 2008 De Jure 419
- Wethmar-Lemmer “The impact of article 95 reservation on the sphere of application of the United Nations Convention on Contracts for the International Sale of Goods (CISG)” 2010 De Jure 362
- Wethmar-Lemmer: The Vienna Sales Convention and Private International Law (2010) LLD thesis University of Johannesburg
- Wethmar-Lemmer “Party autonomy and international sales contracts” 2011 TSAR 431
TSAR = Tydskrif vir die Suid-Afrikaanse Reg / Journal of South African Law
The decision in AC v CS 2011 2 SA 360 (WCC) (Western Cape High Court, Cape Town) deals with the recognition in South Africa of a civil partnership registered in the United Kingdom under the Civil Partnership Act, 2004. Gamble J obiter referred to the proprietary consequences of such partnership in South Africa.
The South African Civil Union Act 17 of 2006 makes provision for civil unions between couples of the same or different sex. The parties may choose whether their civil union must be known as a marriage or a civil partnership (section 11 of the act). The UK Civil Partnership Act, 2004, makes provision for same-sex couples only and a civil partnership is not known as a marriage. Notwithstanding these differences, the court recognises the UK civil partnership as a civil union for the purposes of South African (private international) law. Although the court does not refer to the process of classification, the decision attests to an enlightened lex fori approach to characterisation. (On classification in South(ern) African private international law, see Forsyth Private International Law (2003) 68-81 and Neels “Falconbridge in Africa” 2008 Journal of Private International Law 167.)
In South African private international law, both the formal and the inherent validity of a marriage are governed by the law of the place of the conclusion of the marriage (the lex loci celebrationis). (See Forsyth 263-265.) This decision is the first in South Africa in which the same conflicts rule is applied in respect of the inherent validity of a foreign civil partnership. As the partnership is inherently valid in terms of English law, it is valid for the purposes of South African (private international) law.
The court finds that the grounds for divorce and payment of maintenance inter partes are governed by the relevant provisions in the Civil Union Act, which refer to the arrangements in the Divorce Act 70 of 1979. This is not the position, at least not in the first place, because the word “marriage” in the Divorce Act may be interpreted to include foreign partnerships, as the court implies, but because these issues are governed by the lex fori (namely the Civil Union Act referring to the Divorce Act) (see Forsyth 286).
The parties were probably both domiciled in South Africa at the time that the partnership was registered in the UK (although one party was a UK citizen). As they did not conclude an ante-nuptial contract, the partnership/civil union would according to South African law have been concluded in community of property. It was unnecessary for the court to determine which law applied in respect of the proprietary consequences of the partnership/civil union as the parties concluded a deed of settlement in this regard.
The Roman-Dutch rule referred the proprietary consequences of a marriage to the law of the domicile of the husband at the time of the conclusion of the marriage (see Sperling v Sperling 1975 3 SA 707 (A)). This rule is today unconstitutional on the basis of the equality principle and also because it does not make provision for same-sex marriages/civil unions/civil partnerships. The court in casu comes to the same conclusion but does not refer to other case law where the same point was already made: see Fourie v Minister of Home Affairs 2005 1 All SA 273 (SCA) par 125 n 112; Sadiku v Sadiku case no 30498/06 (26 January 2007) (T) per www.saflii.org, discussed by Neels and Wethmar-Lemmer “Constitutional values and the proprietary consequences of marriage in private international law – introducing the lex causae proprietatis matrimonii” 2008 TSAR 587.
Gamble J suggests that the legislature address the position in respect of the patrimonial consequences of same-sex marriages/civil unions/partnerships. This does not seem to be necessary. The courts have the inherent power to develop the common law in conformity with constitutional values (sec 8(3)(a), 39(2) and 173 of the Constitution of the Republic of South Africa of 1996). In this regard they should take note of the relevant academic opinion: see Stoll and Visser “Aspects of the reform of German (and South African) private international family law” 1989 De Jure 330; Schoeman “The connecting factor for proprietary consequences of marriage” 2001 TSAR 72; Schoeman “The South African conflict rule for proprietary consequences of marriage: learning from the German experience” 2004 TSAR 115; Schoeman “The South African conflict rule for proprietary consequences of marriages: the need for reform” 2004 IPRax 65; Neels “Revocation of wills in South African private international law” 2007 ICLQ 613; and Neels and Wethmar-Lemmer supra.
We have indicated before that we support the five-step model proposed by Stoll and Visser supra (Neels and Wethmar-Lemmer supra). The proposal ends the infringement of the equality principle and also provides a solution for same-sex marriages/civil unions/partnerships. Here it follows, adapted to make provision for civil unions and similar institutions:
In the absence of an express or tacit choice of law in an ante-nuptial contract, the proprietary consequences of a marriage, a civil union or similar institution (eg a civil partnership) must be governed by the law of the country of the common domicile of the parties at the time of the conclusion of the marriage, civil union or similar institution. If they did not have such a common domicile, the law of the country of the common habitual residence of the parties at the time of the conclusion of the marriage, civil union or similar institution must apply. If they did not have such a common habitual residence, the law of the country of the common nationality of the parties at the time of the conclusion of the marriage, civil union or similar institution must apply. If they did not have such a common nationality, the law of the country with which both spouses were most closely connected at the time of the marriage must apply.
See here for a database of publications in the field of New Zealand private international law. The editor is South-African-born Dr Elsabe Schoeman of the Faculty of Law at the University of Auckland in New Zealand.
The recent decision of the Eastern Cape High Court in Grahamstown (South Africa) in Burchell v Anglin 2010 3 SA 48 (ECG) deals with cross-border defamation in a commercial context. The plaintiff (who runs a game reserve and a hunting safari business in the vicinity of Grahamstown) alleged that the defendant made defamatory statements about him to a booking agent in Sydney, Nebraska (USA). Most of his safari clients originated from this agent. However, the bookings suddenly and dramatically decreased and, according to the plaintiff, this was due to defamatory statements made by the defendant to the agent. Accordingly, he instituted action for general damages and loss of profit.
Crouse AJ decided that the lex loci delicti was the law of Nebraska as the defamatory statements were heard and read in that state. However, although “[weighing] heavily in the balancing scale” (par 124), the place of the delict was in final instance “only to be used as a factor in a balancing test to decide which jurisdiction would have the most real or significant relationship with the defamation and the parties” (par 128). Nevertheless, taking into account the other connecting factors (listed in par 124), the judge decided that the law of Nebraska would prima facie be applicable.
In the process, the judge rejects the double actionability rule of the English common law (par 113). She refers in some detail to foreign case law (from the UK, Canada and the USA) and to foreign commentators (including Harris and Fridman). Her views are similar to these found in Forsyth’s Private International Law (2003) 339-340, the leading textbook on Southern African private international law.
However, according to Crouse AJ, the defamation laws of Nebraska needed to pass constitutional muster to be applied by a South African court: “In South Africa the highest test for our public policy is our Constitution. Just as all South African law is under public scrutiny, so any foreign law which a court intends to apply in South Africa should be placed under constitutional scrutiny. I must therefore decide whether the law of Nebraska passes constitutional muster in South Africa before deciding I can apply [the] same” (par 127). The court is therefore of the opinion that constitutional norms are always of direct application. (A similar view may be found in the recent judgement of the Supreme Court of Appeal in Lloyd’s v Classic Sailing Adventures 2010 SCA 89 (31 May 2010) per www.justice.gov.za/sca.) The issue of conflict with constitutional norms was referred to decision at the end of the trial (par 127). This may lead to an interesting decision as US defamation law is perceived to be pro-defendant (the defendant alleges that his statements are protected under the US constitution) (par 121) while South African defamation law is, in comparison, more favourable to the plaintiff, also due to constitutional provisions.
In Lloyd’s v Classic Sailing Adventures (Pty) Ltd 2010 ZASCA 89 (31 May 2010) (available from www.justice.gov.za/sca) the South African Supreme Court of Appeal held that sections 53 and 54 of the South African Short-Term Insurance Act 53 of 1998 are rules of immediate application that cannot be excluded by a choice of law. English law was chosen as the proper law of the insurance contract. The court held that, in as far as the Marine Insurance Act 1906 (UK) was in conflict with the South African provisions, it would not be applied. Section 53 deals with the effect of non-disclosure and misrepresentations and “is designed to protect insured parties who are ignorant, careless or uneducated from unscrupulous insurers who attempt to escape liability” (par 24). Section 54 deals with the effect of a contravention of a law on a policy and “ensures that a policy is not avoided only because the insured has contravened a law” (par 24). In an important obiter dictum, the court indicates that constitutional norms are invariably of direct application (par 25). A similar view was recently adopted in Burchell v Anglin 2010 3 SA 48 (ECG), in the context of cross-border defamation.
In a recently published judgment of the High Court of South Africa, Cape Provincial Division (Silvercraft Helicopters (Switzerland) v Zonnekus Mansions 2009 (5) SA 602)), the Court had to deal with the question whether, in terms of the common law, an order for security for the claim, or only for costs, was to be made when an action (either in convention or in reconvention) is brought by an incola against a peregrinus. Citing a long passage in an article by Prof. Christian Schulze “Should a peregrine plaintiff furnish security for costs for the counterclaim of an incola defendant” , (2007) 19 South African Mercantile Law Journal 393-399, the Court adopted Schulze’s view and held “that there is indeed a practice operating in this division that would permit the court to grant an order directing the plaintiffs to give security for the potential value, and costs, of the second defendant’s claim in reconvention, but that all the circumstances should be considered before a plaintiff is compelled to provide security in full for a claim in reconvention”.
The final programme for the PIL conference at the University of Johannesburg, 8-11 Sept 09, is now available at www.uj.ac.za/law.
Private International Law in Israel
by Prof Talia Einhorn
Visiting Professor of Law / Indiana University School of Law
Visiting Senior Research Fellow / Tel-Aviv University Faculty of Management
Kluwer Law International
Israel’s PIL is not codified, nor is it clearly traceable to any one legal system. Since the style and method of legal development in Israel has primarily followed the tradition of the common law, the author first critically analyzes the case law to draw the pertinent rules. However, the study does not confine itself to the rules already existing in Israeli PIL, but establishes rules in areas where such are missing, guided by the methods and principles which the court and legislature would have adopted had they been confronted with these problems.
Subjects covered in the book include:
- national and international sources of Israeli PIL;
- types of choice-of-law rules;
- characterization of legal matters;
- natural and legal persons;
- contractual and non-contractual obligations;
- property law (movables, immovables, trusts, cultural property)
- intellectual and industrial property rights;
- companies organized under the civil or commercial law of any state;
- family law and succession;
- scope of international jurisdiction in Israeli courts;
- proof of foreign law;
- judicial assistance;
- recognition and enforcement of foreign judgements;
- international arbitration; and
- the role of literature and legal doctrine.