Author Archives: Thalia Kruger

About Thalia Kruger

Thalia Kruger obtained her BA and LLB degrees from the University of Stellenbosch in South Africa. Thereafter she completed her PHD at the Katholieke Universiteit Leuven in Belgium on “Civil jurisdiction rules in the EU and their impact on third States” (subsequently published by Oxford University Press under the same title). While working on her PHD, she was a teaching and research assistant at the Law Faculty’s Institute for Private International Law where she tutored and lectured on various aspects of private international law and international business law. She has also participated in a research project funded by the European Commission on “International Civil litigation in Europe and relations with third States”. Thalia subsequently worked at the Flemish Centre for Minorities where she give legal advice on Private International Law in family matters and then conducted EU funded research on international child abduction for Child Focus, an NGO working with sexually exploited and disappeared children. Thalia is currently senior lecturer in Private International Law at the University of Antwerp (Belgium) and honorary research associate at the University of Cape Town (South Africa).

Van Den Eeckhout on Choice and Regulatory Competition and on Business and Human Rights

The working paper “Choice and regulatory competition. Rules on choice of law and forum”, written by Veerle Van Den Eeckhout (https://www.uantwerpen.be/nl/personeel/veerle-vandeneeckhout/ ) is now available on ssrn, here. The paper is the short written version of her contribution to the Conference “Norm-Setting, Enforcement and Choice”, held in Maastricht (the Netherlands) on 18 October 2013. The Conference report is available here 
The paper analyzes PIL from the perspective of “Choice and regulatory competition”. The final version of the paper will be published in the Congress book.
 
The Power Point of another Presentation of Veerle Van Den Eeckhout has also been made publicly available: The Power Point of her contribution to the Conference at Lausanne on 10 October 2014 is available on slideshare, see http://www.slideshare.net/vvde/lausanne10oktober201419septdefinitief . This Power Point was presented during the Conference “The Implementation of the UN Principles on Business and Human Rights in Private International Law” at Lausanne, see for the programme of the Conference http://www.isdc.ch/d2wfiles/document/4713/4018/0/Human%20Rights%20in%20PIL-%2010-10-2014.pdf The presentation of Veerle Van Den Eeckhout was entitled “The Private International Law Dimension of the Principles. Introduction.” 

Vacancy at the Permannt Bureau of the Hague Conference on Private International Law

The Permanent Bureau of the Hague Conference on Private International Law (HCCH) is seeking a

TEMPORARY LEGAL OFFICER (full-time, until 30 June 2015).

The ideal candidate will possess the following qualifications:

  • A law degree (Master of Laws, J.D., or equivalent);
  • Very good knowledge of private international law as well as familiarity with comparative and civil law;
  • Excellent command, preferably as native language and both spoken and written, of English or French; good command of the other official language and knowledge of other languages desirable;
  • Sensitivity to different legal cultures;
  • Experience in publishing / editing is a plus.

He or she should work well in a team, be able to work in more than one area of law, and respond well to time-critical requests. Additional legal or academic work experience would be an advantage.

The successful candidate will work primarily in the areas of international family law and child protection. He or she will also be required to carry out work in other fields (international legal co-operation and litigation / international commercial and finance law) depending on the needs of the Permanent Bureau.

Duties will include comparative law research, preparation of research papers and other documentation, organisation and preparation of materials for publication, including The Judges’ Newsletter on International Child Protection, assistance in the preparation of and participation in conferences, seminars and training programmes, and such other work as may be required by the Secretary General from time to time.

Type of appointment and duration: short-term contract until 30 June 2015.

Starting date: October / November 2014.

Grade (Hague Conference adaptation of Co-ordinated Organisations scale):  A/1 subject to relevant experience.

Deadline for applications: 15 October 2014.

Applications: written applications should be made by e-mail, with Curriculum Vitae, letter of motivation and at least two references, to be addressed to the Secretary General, at <applications@hcch.nl>.

Conference on International Child Abduction and Human Rights, 16 October

The University of Antwerp (Research Group Personal Rights and Real Rights) and  the British Institute of International and Comparative Law are organising a conference on International Child Abduction and Human Rights: A Critical Assessment of the Status Quo.

The confernce will take place in Antwerp – Stadscampus – R.212 – Rodestraat- on 16 October 2014.

Register through http://www.biicl.org/event/1061   

Programme:

10.00-10.30                   Registration and coffee

10.30-10.45                   Welcome (Thalia Kruger and Eva Lein)

Chair: Maarit Jänterä-Jareborg, Uppsala University

10.45-11.45                   Panel on recent case law (Karin Verbist and Carolina Marín Pedreño)

11.45-12.15                   United States Supreme Court Hague Abduction Decisions: Developing a Global Jurisprudence (Linda Silberman)

12.15-12.45                   The Role of Central Authorities (Andrea Schulz)

12.45-14.00                   Lunch??

Chair: Frederik Swennen, University of Antwerp

14.00-14.30                   Keynote Address, Permanent Bureau of the Hague Conference: ?”Quo vadis 1980 Convention” (Marta Pertegas)

14.30-15.00                   Keynote Address, European Commission: “Quo vadis Brussels IIbis” ?(Michael Wilderspin)

15.00-15.30                   Children’s Rights and Children’s Interests: (Helen Stalford)

15.30-16.00                   Is Harmonised Case Law Possible? (Paul Beaumont)

16.00-16.30                   The Concerns of Children’s Organisations: (Hilde Demarré and Alison Shalaby)

16.30-17.00                   Debate

Belgium ratified the Child Protection Convention of 1996

Belgium has ratified the Hague Child Protection Convention of 1996. Readers might remember that the ratification by the EU Member States of this instrument was delayed due to a diplomatic issue. Once this was resolved, the Commission’s objective was that all Member States should ratify the Convention by 2010 (see the Council Decision of 5 June 2008). Some were late. Belgium, as the second last Member State to ratify, has now done so.  Of the EU Member States only Italy’s ratification remains outstanding.

The Convention will enter into force in Belgium on 1 September 2014.

New publication on Matrimonial Property Proposal

Jaqueline Gray and Pablo Quinzá Redondo published “Stress-Testing the EU Proposal on Matrimonial Property Regimes: Co-operation between EU private international law instruments on family matters and succession” in Family&Law, an open-source Belgian-Dutch Journal. The publication is available here.

 

European conference on international child abduction, The Hague 7-10 May 2014

On 7-10 May the International Child Abduction Center of the Netherlands  (Centre IKO) will host a conference for family lawyers who work in the field of in international parental child abduction. The event will take place in the Peace Palace in The Hague. 

The conference is part of LEPCA (Lawyers in Europe on Parental Child Abduction), a project funded by the European Commission.

Speakers include mr Fred Teeven (Dutch Secretary of State for Security and Justice), mr Christophe Bernasconi (Secretary General of the Hague Conference on Private International Law), mrs Joanna Serdynska (European Commission DG Justice), and mr Lo Voi (Eurojust).

The remainder of the conference will take the form of interactive seminars on various topics of international child abduction by parents.

For further information and the programme see http://www.lepca.eu.

PhD scholarship in European conflict of laws at University of Antwerp

The Universty of Antwerp ofers a position for a PhD candidate in the field of European conflict of laws. The candidate will research “the specific character, principles and objectives of European conflict of laws”. The research project is funded by the Research Foundation – Flanders (FWO) for a period of four years starting as soon as possible, but at the latest on 1 September 2014.

For more information see the vacancy on the University of Antwerp’s website.

South African Constitutional Court does it again

On 27 June 2013 South Africa’s constitutional court has ruled on two matters of interest for specialists of private international law, specifically international civil procedure.

In the first judgment, Government of Zimbabwe v. Fick and Others, the Court ruled on the enforcement of a costs order granted by the Tribunal of the Southern African Development Community (SADC). At the basis of the dispute was the expropriation of the land of Zimbabwean farmers without compensation. The Tribunal, with its seat in Windhoek, Namibia, has in the meantime been suspended due to the political row that followed this and other judgments.

When Zimbabwe refused to comply with the costs order, the farmers approached the South African courts for registration and enforcement. Property belonging to Zimbabwe, and situated in South Africa, was attached.

On the matter of immunity the Constitutional Court found:

Zimbabwe’s agreement to be bound by the Tribunal Protocol, including article 32[on enforcement and execution], constitutes an express waiver in terms of section 3(1) of the Immunities Act. It is a waiver by Zimbabwe of its right to rely on its sovereign immunity from the jurisdiction of South African courts to register and enforce decisions of the Tribunal made against it.

The Constitutional Court ruled that the common law rules on enforcement, applicable to the judgments of foreign states, had to be extended to the judgments granted by international tribunals.

 

The second judgment, Mukaddam v. Pioneer Foods (Pty) Ltd and Others, concerned a class action against a number of producers of bread, based on anti-competitive conduct. Mr Mukaddam was one of a number of bread distributors. The Competition Tribunal had already found the producers guilty of anti-competitive conduct and imposed fines. The High Court of the Western Cape and the refused certification, since many of the applicants were corporate entities and since the courts found that the issues raised against the various respondents were different.

In its judgment, Children’s Resource Centre Trust v Pioneer Food (delivered on 29 November 2012), the Supreme Court of Appeal grappled with the issue that the South African Constitution allows class actions (in s. 38c), but that there is no legislation on the matter. The Court stated: “We are thus confronted with a situation where the class action is given express constitutional recognition, but nothing has been done to regulate it. The courts must therefore address the issue in the exercise of their inherent power to protect and regulate their own process and to develop the common law in the interests of justice.

It has long been disputed whether class actions are only permitted in constitutional matters or also in civil matters. Therefore the claimants invoked their right to access to food (s. 27,1b of the Constitution). The Court, however, found that their right to access to the courts (s. 34) was sufficient to allow a class action, as they would not be able to bring their claims as individual plaintiffs. Moreover, the Court recognised the general possibility of civil class actions and set down requirements for such actions, including certification. The Court set down the elements that a court should use in the assessment of certification:

  • the existence of a class identifiable by objective criteria;
  • a cause of action raising a triable issue;
  • that the right to relief depends upon the determination of issues of fact, or law, or both, common to all members of the class;
  • that the relief sought, or damages claimed, flow from the cause of action and are ascertainable and capable of determination;
  • that where the claim is for damages there is an appropriate procedure for allocating the damages to the members of the class;
  • that the proposed representative is suitable to be permitted to conduct the action and represent the class;
  • whether given the composition of the class and the nature of the proposed action a class action is the most appropriate means of determining the claims of class members.

The Court subsequently allowed certification of one of the classes and refused certification for the other in this particular case (the different classes related to different geographical areas of the country and different dates).

The standard set by the Supreme Court of Appeal was accepted by all parties, and the Constitutional Court proceeded on that basis. The Court then found that the factors laid down by the Supreme Court of Appeal had to be assessed in view of the interests of justice and that the absence of one factor must not oblige a court to refuse certification. The appeal was allowed on this basis. The South African Courts are thus again developing the law of civil procedure.

South African Constitutional Court rules on taking of evidence

It is not every day that a Constitutional Court rules on a matter of evidence. The case Tulip Diamonds FZE v Minister of Justice and Constitutional Development and Others concerned the taking of evidence in South Africa for a criminal investigation in Belgium. It was on a matter of common interest in South Africa and Belgium: diamonds. In the course of a criminal investigation in Belgium, the authorities issued a letter of request for evidence in South Africa. This concerned evidence that had to be produced by Brinks Southern Africa, established in South Africa. This company was not involved in the suspected criminal activities, but transported diamonds for Tulip from Angola and Congo to the United Arab Emirates. Tulip was the intermediary of Omega, the Belgian company who allegedly imported the diamonds under false certificates to conceal their real value and therefore the company’s taxable profit. The documents that the Belgian authorities sought to be transferred concerned invoices by Brinks Southern Africa to Tulip.

The request was approved by the Minister of Justice and given to a magistrate to carry out. The magistrate issued a subpoena to an employee at Brinks. Before she could submit the documents, Tulip got wind of the request. After negotiations and a temporary interdict by the High Court for Brinks not to transfer the documents, Tulip approached the court for a review of the approving of the request. The issue then arose whether Tulip had standing under the Constitution or under common law to bring these proceedings.

Some of the issues in the case concern criminal procedure law, but the matter of standing is also of interest for civil cases, to my mind.

The judgment (issued on 13 June 2013) is available on the website of the Constitutional Court and on the Legalbrief site.

ERA Conference on Recent Developments in Private International Law and Business Law

The Academy of European Law (ERA), situated in Trier and with the financial support of the European Commission, organises conferences and summer schools on various topics of EU law. On 5-6 June a conference was held on recent developments in private international law and business law (covering civil jurisdiction, civil procedure, contract, delict, insolvency, and company law).

A report summarising the interventions can be downloaded here.