The most recent issue of the German Journal of Comparative Law (Zeitschrift für Vergleichende Rechtswissenschaft) features three articles on private international law. Read more
A new book co-edited by Prof. F.J. Zamora Cabot and M.C. Marullo has just been published in the field of human rights and business by the Italian publisher house Editoriale Scientifica, as part of the collection “La ricerca del diritto nella comunità internazionale”. The diversity of the approaches of the contributions – constitutional law, International Public Law, investment arbitration, Procedural Law, Private International Law-, makes it worth for specialists in the different areas. The index and Foreword can be looked up here.
A saga that has kept Malaysians engaged for years has finally founds its conclusion. A woman, named (rather improbably, at least for European observers) Indira Gandhi, was fighting with her ex husband over custody. The ex-husband had converted to Islam and had extended the conversion to their three children, with the consequence that the Syariah courts gave him sole custody. What followed was a whole series of court decisions by civil courts on the one hand and Syariah courts on the other, focusing mainly on the jurisdictional question which set of courts gets to decide matters of religious status and which law—Islamic law or civil law—determines the question. The Malaysian Federal Court now quashed the conversion as regards the children, thereby claiming, at least for children, a priority of the Constitution and the jurisdiction of civil courts.
Although the case is mostly discussed in the context of religious freedom and (civil) judicial review, it also raises core issues of conflict of laws. Malaysia is a country with an interpersonal legal system, which leaves jurisdiction over certain matters of Islamic law to the Syariah courts. Indira Gandhi’s ex-husband here used this system, effectively, for a form of forum shopping: converting to Islam enabled him, ostentatiously, to opt into a system more favorable to his own situation. The background, from the perspective of conflict of laws, is that the decisive connecting factor, namely a person’s religion, is open to manipulation in a way in which other connecting factors are not. According to Article 121 of the Federal Constitution, the civil courts have no jurisdiction over matters of the Syariah Courts. On the other hand, Art. 12(4) of the Constitution provides that a minor’s religion is determined by his parent or guardian, a provision the Syariah Courts neglected here. Letting the Constitution trump leads to a desirable result in this case, but it does not, by itself, resolve the underlying conflict-of-laws issues. Here, as in comparable situations, the doctrinal problem appears to lie first in the issue of unilateral determination of personal status and second in a conflation of issues of jurisdiction and applicable law.
The case is Indira Gandhi v. Pengarah Jabatan Agama Islam Perak u.a., [2018] 1 LNS 86 (Federal Court of Malaysia); it is available here. A short summary is here, another one, including a useful timeline of events, is here. For a very helpful analysis of the case and its background and implications by Jaclyn L. Neo, focusing especially on questions of jurisdiction and judicial review, see here. A longer discussion by Dian A.H. Shah focuses also on two other cases and more broadly on the issues of religious freedom: Dian A.H. Shah, Religion, conversions, and custody: battles in the Malaysian appellate courts, in Law and Society in Malaysia: Pluralism, Religion and Ethnicity (Andrew Harding/Dian A.H. Shah eds., 2018). The affair is also discussed in Yvonne Tew‘s article ‘Stealth Theocracy,’ which is forthcoming with the Virginia Journal of International Law.
Cuadernos de Derecho Transnacional, vol. 10, nr. 1, has just been released. Cuadernos publishes research papers on private international law, uniform law and comparative private law twice a year (March and October). The journal accepts manuscripts in all main European languages (to submit a paper click here).
The complete number as well as each single contribution can be accessed and downloaded for free.
On 11 May 2018 the Department of Italian and Supranational Public Law of the University of Milan will host a conference on Punitive Damages and European Private International Law: State of the Art and Future Developments, in cooperation with the Interest Group on Private International law of the Italian Society of International Law and with the Rivista di diritto internazionale privato e processuale.
The conference takes inspiration from a recent revirement of the Italian Corte di Cassazione (Cass., S.U., 5 July 2017, No 16601) and aims at analysing the private international issues involved by the recognition of punitive damages within European legal orders.
Speakers and discussants include:
The complete programme is available here.
Admission is free. Participants are kindly asked to register by 4 May 2018 here.
For information please contact conference.pil.milan@gmail.com.
A brief update on our previous post regarding the approval of the establishment of the Netherlands Commercial Court by the House of Representatives (Tweede Kamer). The bill is now scheduled for rubber-stamping by the Senate (Eerste Kamer) on 27 March 2018. This makes the kick-off date of 1 July 2018 realistic.
We believe that this court will strengthen international commercial complex litigation in the Netherlands, and it offers business litigants an alternative to arbitration and high quality commercial courts in other countries. See also (for Dutch readers) Eddy Bauw and Xandra Kramer, ‘Commercial Court’ is uitkomst voor complexe internationale handelszaken, Het Financieele Dagblad, 11 October 2017.
More news will follow soon.
Our previous post:
(PhD candidate, postdoc researcher and PI ERC project Building EU Civil Justice)
Following up on our previous post, asking which international commercial court would be established next, the adoption of the proposal for the Netherlands Commercial Court by the House of Representatives (Tweede Kamer) today answers the question. It will still have to pass the Senate (Eerste Kamer), but this should only be a matter of time. The Netherlands Commercial Court (NCC) is expected to open its doors on 1 July 2018 or shortly after.
The NCC is a specialized court established to meet the growing need for efficient dispute resolution in cross-border civil and commercial cases. This court is established as a special chamber of the Amsterdam District Court and of the Amsterdam Court of Appeal. Key features are that proceedings will take place in the English language, and before a panel of judges selected for their wide expertise in international commercial litigation and their English language skills.
To accommodate the demand for efficient court proceedings in these cases a special set of rules of procedure has been developed. The draft Rules of Procedure NCC can be consulted here in English and in Dutch. It goes without saying that the court is equipped with the necessary court technology.
The Netherlands prides itself on having one of the most efficient court systems in the world, as is also indicated in the Rule of Law Index – in the 2017-2018 Report it was ranked first in Civil Justice, and 5th in overall performance. The establishment of the NCC should also be understood from this perspective. According to the website of the Dutch judiciary, the NCC distinguishes itself by its pragmatic approach and active case management, allowing it to handle complex cases within short timeframes, and on the basis of fixed fees.
As noted by Marta Requejo in an earlier post, the European Commission has published on 12 March 2018 a proposal for a regulation on the law applicable to the third-party effects of assignments of claims.
On 4 April 2018, a seminar (in English) will take place at the Department of Law of the University of Ferrara under the title Voluntary Assignment and Contractual Subrogation under EU Private International Law. The Commission proposal will, of course, be one of the key topics of the seminar.
Speakers include Martin Gebauer (University of Tübingen), Antonio Leandro (University of Bari), Alina Ontanu (Erasmus University Rotterdam) and Riccardo Manfrini (lawyer in Treviso). The seminar will be moderated by Alberto Malatesta (LIUC University Castellanza).
Further information may be found here.
On March 12th, the Commission has issued a proposal on the law applicable to third party effects of assignments of claims. The main purpose of the proposed regulation would be to supplement Art 14 of the Rome I Regulation, which is silent on the proprietary effects of assignments. The main rule under the proposal is that third party effects of assignments of claims are to be governed by the law of the habitual residence of the assignor, with a few defined exceptions.
Click here to access the proposal, COM(2018) 96 final.
SaveComp is a project co-funded by the European Union whose goal is to collect and exchange best practices in the field of insolvency and pre-insolvency cross-border proceedings.
The project has now been concluded, and the final deliverables are available online.
These are a collection of more than 500 decisions regarding the EU Insolvency Regulation, available through the Unalex database, and a Final study, edited by Ilaria Queirolo (University of Genoa) and Stefano Dominelli (University of Milan), and authored by Stephan Biehl, Jan Brodec, Janeen Carruthers, José Juan Castelló Pastor, Rolef J. de Weijs, Tsvetelina Dimitrova, Carlos Esplugues Mota, Francisco Gómez Fonseca, Urs Peter Gruber, Boriana Musseva, Nikolay Natov, Vasil Pandov, Monika Pauknerová, Magdalena Pfeiffer, Dana Rone, Arthur Salomons, Dafina Sarbinova, Alexander Schley, Emil Tsanev, Teodora Tsenova, C.G. van der Plas and Aukje A.H. van Hoek.
The project, led by the University of Genoa, involved the Universities of Valencia, Amsterdam, Glasgow, Mainz, Prague and Valencia, the Turiba University in Riga, the Institute of Private International Law in Sofia and IPR Verlag.
Further to the splendid conference How European is European Private International Law? at Berlin on 2 and 3 March 2018, I would like to add some thoughts on an issue that was briefly raised by our fellow editor Pietro Franzina in his truly excellent conference presentation on “The relationship between EU and international Private International Law instruments”. Pietro rightly observed an “increased activity on the external side”, meaning primarily the EU’s PIL activities on the level of the Hague Conference.
At the same time, there seems to be still a blind spot for the EU’s Private International Law policy when it comes to the design of the EU’s Free Trade Agreements (FTAs). Although there is an increasingly large number of such agreements and although “trade is no longer just about trade” (DG Trade) but additionally about exchange or even export of values such as “sustainability”, human rights, labour and environmental standards and the rule of law, there seems to be no policy by DG Trade to include in its many FTAs a Chapter on judicial cooperation with the EU’s respective external trade partners.
To my knowledge there are only the following recent exceptions: The Association Agreements with Georgia and Moldova. Both Agreements entered into force on 1 July 2016.
Article 21 (Georgia) and Article 20 (Moldova) provide:
“Legal cooperation: 1. The Parties agree to develop judicial cooperation in civil and commercial matters as regards the negotiation, ratification and implementation of multilateral conventions on civil judicial cooperation and, in particular, the conventions of the Hague Conference on Private International Law in the field of international legal cooperation and litigation as well as the protection of children.”
Article 24 of the Association Agreement of 29 May 2014 with the Ukraine reads slightly differently:
“Legal cooperation: 1. The Parties agree to further develop judicial cooperation in civil and criminal matters, making full use of the relevant international and bilateral instruments and based on the principles of legal certainty and the right to a fair trial.2. The Parties agree to facilitate further EU-Ukraine judicial cooperation in civil matters on the basis of the applicable multilateral legal instruments, especially the Conventions of the Hague Conference on Private International Law in the field of international Legal Cooperation and Litigation as well as the Protection of Children.”
All other FTAs, even those currently under (re-) negotiation, do not take into account the need for the management of trust in the judicial cooperation of the trade partners in their deepened and integrated trade relations. Rather, foreign trade law and PIL seem to have remained separate worlds, although the business transactions that are to take place and increase within these trade relations obviously rely heavily on both areas of the law.
Some thoughts on why there is no integrated approach to foreign trade and PIL in the EU, why this is a deficiency that should be taken care of and how this could possibly be done are offered here.