By Stephen G.A. Pitel, Faculty of Law, Western University
In 2013 two Innu First Nations sued, in the Superior Court of Quebec, two mining companies responsible for a mega-project consisting of multiple open-pit mines near Schefferville, Quebec and Labrador City, Newfoundland and Labrador. The Innu asserted a right to the exclusive use and occupation of the lands affected by the mega-project. They claimed to have occupied, since time immemorial, a traditional territory that straddles the border between the provinces of Quebec and Newfoundland and Labrador. They claimed a constitutional right to the land under s. 35 of the Constitution Act, 1982. Read more...
By Gaurav Chaliya and Nishtha Ojha. The authors are third year students at the National Law University, Jodhpur, India.
In 2018, around 47 entities forming the part of corporate
groups were reported to be in debt which reflects the necessity of having an
effective cross-border legal framework. The flexibility in the framework of
cross border insolvency helps in overcoming the hurdles encountered in cross
border disputes. This framework essentially girdles around the principle of
coordination and cooperation and in consonance with these principles the
National Company Law Appellate Tribunal [“NCLAT”]
in Jet Airways case has extended
these principles by providing sufficient rights to Dutch trustee and observed that– Read more...
By Stephen G.A. Pitel, Faculty of Law, Western University
Eritrean mine workers who fled from that country to British Columbia sued the mine’s owner, Nevsun Resources Ltd. They sought damages for various torts including battery, false imprisonment and negligence. They also sought damages for breaches of customary international law. Their core allegation was that as conscripted labourers in Eritrea’s National Service Program, they were forced to work in the mine in intolerable conditions and Nevsun was actively involved in this arrangement.
Nevsun moved to strike out all of the claims on the basis of the act of state doctrine. It also moved to strike out the proceedings based on violations of customary international law because they were bound to fail as a matter of law. Read more...
Report written by Tine Van Hof, researcher at the University of Antwerp
On the 13th and 14th of
February 2020, the Academy of European Law (ERA) organized a conference on
‘Recent ECtHR Case Law in Family Matters’. This conference was held in
Strasbourg and brought together forty participants coming from twenty-one
different countries. This report will set
out some of the issues addressed at the conference. Read more...
Written by Anna Wysocka-Bar, Senior Lecturer at Jagiellonian University (Poland)
On 2 December 2019 Supreme Administrative Court of Poland (Naczelny S?d Administracyjny) adopted a resolution of seven judges (signature: II OPS 1/19), in which it stated that it is not possible – due to public policy – to transcribe into the domestic register of civil status a foreign birth certificate indicating two persons of the same sex as parents. The Ombudsman joined arguing that the refusal of transcription infringes the child’s right to nationality and identity, and as a result may lead to infringement of the right to protection of health, the right to education, the right to personal security and the right to free movement and choice of place of residence. Interestingly, the Ombudsman for Children and public prosecutor suggested non-transcription. The background of the case concerns a child whose birth certificate indicated two women of Polish nationality as parents, a biological mother and her partner to a de facto union. Parents applied for such transcription in order to apply subsequently for the issuance of the passport for the child. Read more...
This note addresses the question whether
there is a common law basis for the recognition of foreign declarations of
parentage. It appears that this issue has not received much attention in common
law jurisdictions, but it was the subject of a relatively recent Privy Council decision
(C v C  UKPC 40).
The issue arises where a foreign
court or judicial authority has previously determined that a person is, or is
not, a child’s parent, and the question of parentage then resurfaces in the
forum (for example, in the context of parentage proceedings or maintenance proceedings).
If there is no basis for recognition of the foreign declaration, the forum
court will have to consider the issue de novo (usually by applying the law of
the forum: see, eg, Status of Children Act 1969 (NZ)). This would increase the
risk of “limping” parent-child relationships (that is, relationships that are
recognised in some countries but not in others) – a risk that is especially
problematic in the context of children born by way of surrogacy or assisted
human reproduction technology. Read more...
Can a foreign marriage be recognised in the UK if the State where it was celebrated is not recognised as a State? This was the question which the High Court of Justice (Family Division) had to answer in MM v NA:  EWHC 93 (Fam).
The Court distilled two questions: was the marriage validly celebrated and if so, can it be recognised in the UK? If the answers to both questions were affirmative, the court could give a declaratory order; if one of them were negative, the parties could celebrate a new marriage in the UK. Read more...
Written by Jonathan Fitchen
The UK’s intention to attempt to accede to the 2007 Lugano Convention is apparently proceeding apace. Though the events leading up to Friday 31st January, when the UK left the EU, rather overshadowed this fact, the UK Government had already announced that its intention to accede by a posting on 28th January 2020 that may be found here https://www.gov.uk/government/news/support-for-the-uks-intent-to-accede-to-the-lugano-convention-2007 As will be remembered, the 2007 Lugano Convention is open to non-EU third States if the consent of all the existing Convention parties can be first secured. The UK Gov posting records that the UK has secured statements in support of it joining the 2007 Convention from the Swiss, the Norwegians and Iceland. So now all that is required is to secure the consent of the EU to this course of action. Assuming that such consent can be secured, the UK Gov posting records that it is the intention of the UK Government to accede to the 2007 Convention at the end of the transition period (currently scheduled / assumed for 23.00 GMT on 31st December 2020).
Written by Jonathan Fitchen.
‘The time has come’; a common enough phrase which may, depending on the reader’s mood and temperament, be attributed variously to Lewis Carroll’s discursive Walrus, to Richard Wagner’s villainous Klingsor, or to the conclusion of Victor Hugo’s epigrammatic comment to the effect that nothing is as powerful as an idea whose time has come. In the present context however ‘the time has come’ refers more prosaically to another step in the process described as ‘Brexit’ by which the UK continues to disentangle itself from the EU. Read more...
by José Antonio Briceño Laborí, Professor of Private International Law, Universidad Central de Venezuela y Universidad Católica Andrés Bello
In 2019 the Venezuelan Private International Law (hereinafter “PIL”) academic community made clear that, despite all the difficulties, it remains active and has the energy to expand its activities and undertake new challenges.
As an example of this
we have, firstly, the different events in which our professors have
participated and the diversity of topics developed by them, among which the
following stand out: Read more...
Latin American Arbitration Conference, Asunción, Paraguay, May 2019 (Luis
Ernesto Rodríguez – How is tecnology impacting on arbitration?)