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CJEU on the EU-third State child abduction proceedings under article 10 of the Brussels IIA Regulation

This post was written by Vito Bumbaca, PhD candidate/ Assistant Lecturer, University of Geneva

The EAPIL blog has also published a post on this topic, click here.

Introduction:

The Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000 (Brussels IIA Regulation) still applies to the United Kingdom in EU cross-border proceedings dealing with parental responsibility and/ or child civil abduction commenced prior to the 31 December 2020 (date when ‘Brexit’ entered into force). Moreover, the Court of Justice of the European Union (CJEU) is entitled to exercise its jurisdiction over such proceedings involving the UK.

The decision of the High Court of England and Wales (Family Division, 6 November 2020, EWHC 2971 (Fam)), received at the CJEU on 16 November 2020 for an urgent preliminary ruling (pursuant to article 19(3)(b) of the Treaty of the European Union, art. 267 of the Treaty of the Functioning of the European Union, and art. 107 of the Rules of Procedure of the Court of Justice), and the CJEU judgment (SS v. MCP, C-603/20, 24 march 2021) are taken as reference in this analysis.

Question for a CJEU urgent preliminary ruling:

‘Does Article 10 of [Regulation No 2201/2003] retain jurisdiction, without limit of time, in a Member State if a child habitually resident in that Member State was wrongfully removed to (or retained in) a non-Member State where she, following such removal (or retention), in due course became habitually resident?’

Contents of the EWHC (Family Division) judgment:

New book on International Negotiable Instruments by Benjamin Geva & Sagi Peari

(published by Oxford University Press, 2020)

The authors kindly provided the following summary: 

The book marries two fields of law: negotiable instruments and choice-of-law. Bills of exchange, cheques and promissory notes are the main classical negotiable instruments. For centuries, these instruments have played a vital role in the smooth operation of domestic and international commerce, including in transactions between distantly located parties. Through their evolution, fusion, and sophistication, they have remained one of the primary tools for everyday commercial activity, serving as one of the primary methods of payment and credit and one of the cornerstones of the contemporary bank-centred system. The rapid technological progress of payment mechanisms has embraced the traditional institution of negotiable instruments leading to their further adaptation and sophistication in order to meet the challenges of the contemporary reality of frequent mobility of people, goods, and high daily volumes of cross-border transactions and international commerce.

Foreign law illegality and non-contractual claims

Written by Marcus Teo (Sheridan Fellow (Incoming), National University of Singapore)

Since Foster v Driscoll [1929] 1 KB 470, common law courts have recognised that contracts made with the intention to commit a criminal offence in a foreign state are unenforceable, even if the contract contemplated an alternative mode or place of performance. However, recent developments in domestic law illegality have sparked debate on whether foreign law illegality too should be reformed in a similar light (see Ryder Industries Ltd v Chan Shui Woo [2016] 1 HKC 323, [36], [52]-[55]; cf Magdeev v Tsvetkov [2020] EWHC 887 (Comm), [331]-[332]). The debate, however, has thus far not considered whether foreign law illegality should expand to bar certain non-contractual claims – a question which the Singapore Court of Appeal’s recent decision in Jonathan Ang v Lyu Yan [2021] SGCA 12 raises.

News

First Issue of 2021’s Revue Critique de Droit International Privé

The last issue of the Revue critique de droit international privé has been released. It contains several case notes and four articles.

The first article, by Didier Boden (University of Paris 1 Pantheon Sorbonne), proposes new names and definitions in order to enrich private international law. Pursuant to the author: “Private international law and the other sets of rules of a legal order which touch upon its relations with other legal orders are poorly named and poorly defined”. The article “proposes to remedy that lexical impropriety and that semantic deficiency by presenting a new collection of names and a new collection of definitions”.

More information is available: The National University of Córdoba (Argentina) is organizing several online conferences on 9, 16, 23 and 30 April 2021 (at 5 pm Argentinian time, 10 pm CEST time) – in Spanish

Please click here for a link to the registration page. The Facebook page of the events is available here. We have previously announced this event here.

April 12: Jan L Neels on the African Principles of Commercial Private International Law

New Monthly Workshop: “Private International Law in Africa”On Monday, 12 April 2021, from 14:00 to 15:00 (CET), the Hamburg Max Planck Institute will host the first presentations in a new monthly  “Private International Law in Africa” series, chaired by Justin Monsenepwo, the new head of the Africa desk. Professor Jan L Neels (University of Johannesburg) will be speaking on the topic:

“An Introduction to the African Principles of Commercial Private International Law”

The zoom presentation will be followed by an open discussion. All are welcome. After having registered no later than 9 April 2021 using this link you will receive the login details on Friday afternoon. More information and sign-up here.

The “Private International Law in Africa” series intends to discuss new scholarly work on private international law in Africa and advance solutions on how the current framework of that field can be improved on the continent. In an environment of growing international transactions in both civil and commercial matters, private international law can play a significant role in enhancing legal and judicial security and predictability in Africa.

In May 2021 the next speaker will be Dr. Abubakri Yekini (Lagos State University), who will speak on the topic “Enforceability of Jurisdiction Agreements in Nigeria”.