On February 25, 2020, the U.S. Supreme Court affirmed the opinion of the U.S. Court of Appeals for the Sixth Circuit, which concluded that Italy was the habitual residence of an infant that was brought from Italy to Ohio by her mother in 2015, shortly after the child was born. This opinion resolved a circuit split over the definition of habitual residence. The 1980 Hague Child Abduction Convention is the private international law instrument that seeks to secure the prompt return of a child removed from or retained out of its habitual residence. It is not a child custody or jurisdictional determination, and not a means of enforcing existing custody orders. Instead it is designed to restore some type of status quo so that the child’s parents can pursue a custody order from the court in the appropriate jurisdiction. It discourages forum shopping and gives the child some consistency during the parents’ custody litigation. The threshold question that a court must resolve in determining whether to return a child is that child’s habitual residence, with the treaty being premised on the fact that a child cannot be returned to a location that is not her habitual residence. The U.S. circuits have had a long-standing split on the definition of this undefined treaty term, used in numerous Hague family law conventions.
Professor Ron Brand has just published a new article in the Journal of Dispute Resolution that arose from his presentation at the 2019 Annual Meeting of the American Society of Comparative Law. In it, he applies comparative method to international litigation from the perspective of a U.S.-trained lawyer, and particularly one who has been involved for over 25 years in the negotiations that produced both the 2005 Hague Convention on Choice of Court Agreements and the 2019 Hague Convention on the Recognition and Enforcement of Judgments in Civil or Commercial Matters.
The article is available here: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3532035
The Annual Survey of American Choice-of-Law Cases for 2019, now in its 33rd year, has been posted on SSRN. A summary of the contents is reproduced below. If you are interested in the Survey, you can download it here
Here is the abstract:
This is the Thirty-Third Survey of American Choice-of-Law Cases. It was written at the request of the Association of American Law Schools Section on Conflict of Laws. It is intended as a service to fellow teachers and to students of conflicts law, both inside and outside of the United States. Its purpose remains the same as it has been in the previous 32 years: to inform, rather than to advocate.
Professor Ronald A. Brand of the University of Pittsburgh School of Law has posted three new articles with private international law content:
This chapter was prepared from a presentation given by the author at the 2019 Summer School in Transnational Commercial Law & Technology, jointly sponsored by the University of Verona School of Law and the Center for International Legal Education (CILE) of the University of Pittsburgh School of Law. The paper reviews the domestic and international progress of online dispute resolution with a particular focus on the negotiations that led to the 2017 UNCITRAL Technical Notes on Online Dispute Resolution
American Society of International Law’s Dispute Resolution Interest Group will be presenting its 2018-2019 U.S. Supreme Court “International Law” Year in Review. This panel discussion will review decisions from the U.S. Supreme Court’s 2018-2019 term involving issues relating to international law and/or international relations. The discussion will include an in-depth look at the reasoning behind the decisions Republic of Sudan v. Harrison and Jam v. International Finance Corp., and will look at the prospects for several Foreign Sovereign Immunities Act cases granted or pending certiorari for the upcoming 2019-2020 term, among others. Our panelists, comprising some of the leading experts on international law issues, will also explore what these decisions tell us about the current Supreme Court’s views on matters of international interest, as well as the influence the newly appointed Justice Kavanaugh has had on these issues.
The University Paris II Panthéon-Assas is hosting, in the context of the Investment Law Initiative, a Colloquium on Actors in International Investment Law: Beyond Claimants, Respondents and Arbitrators, which will take place on 26 and 27 September 2019, in Paris, France.
The Colloquium is jointly organized by the CERSA, research centre of the French National Centre for Scientific Research (CNRS) and of the University Paris II Panthéon-Assas (France); the University of Zaragoza (Spain) and its Faculty of Law; the Athens Public International Law Center (Athens PIL) of the National and Kapodistrian University of Athens Faculty of Law (Greece). These academic and research institutions joined forces in 2016 and established the Investment Law Initiative, an international collaboration aimed at strengthening research and systemic analysis of international investment law. The Colloquium is convened by Dr Katia Fach Gómez (University of Zaragoza, Faculty of Law), Dr Anastasios Gourgourinis (National and Kapodistrian University of Athens, Faculty of Law; Athens PIL), and Dr Catharine Titi (CNRS-CERSA, University Paris II Panthéon-Assas).
Prof. Marco Torsello
University of Verona, School of Law, Via C. Montanari 9, Verona (VR), Italy
Ronald A. Brand (University of Pittsburgh, School of Law, Pittsburgh, PA, USA)
Tim W. Dornis (Leuphana University, Lüneburg, Germany)
Nevena Jevremovic (IACCM – International Association for Contract and Commercial Management, Bosnia-Herzegovina)
Tyler Ochoa (Santa Clara University, School of Law, Santa Clara, CA, USA)
Marco Torsello (Univ. of Verona, School of Law).
Pennsylvania lawyers participating to the course will obtain Continuing Legal Education (CLE) credits: additional information and registration instructions will be posted on-line at: www.law.pitt.edu/Verona
The 2018 draft of a Hague Judgments Convention adopts a framework based largely on what some have referred to as “jurisdictional filters.” Article 5(1) provides a list of thirteen authorized bases of indirect jurisdiction by which a foreign judgment is first tested. If one of these jurisdictional filters is satisfied, the resulting judgment is presumptively entitled to circulate under the convention, subject to a set of grounds for non-recognition that generally are consistent with existing practice in most legal systems. This basic architecture of the Convention has been assumed to be set from the start of the Special Commission process, and will be key to the Convention’s acceptability to countries which might ratify or accede to any final Convention. An alternative approach to convention architecture, which would allow the test for judgment circulation to be built on as few as four rules, was considered and passed over in the earlier Working Group which preceded the Special Commission process.
Corruption continues to cast a shadow over investment law. When allegations of corruption arise in an investment dispute, the tribunal faces the difficult task of deciding whether (and how) to penalize the responsible party. It must assess the often-limited evidence and then craft an appropriate remedy. The legal and practical questions this raises remain highly contested. On Tuesday, February 19, 2019, the ILA American Branch Investment Law Committee and the Georgetown International Arbitration Society are hosting an evening conference to discuss these questions, bringing together academic and non-academic perspectives.
Panel 1: What is sufficient proof of corruption?
• Aloysius Llamzon, Senior Associate, King & Spalding
• Jason Yackee, Professor, University of Wisconsin
• Meriam Al-Rashid, Partner, Dentons
A new blog specializing on international economic law matters as they relate to Africa has recently been created. AfronomicsLaw will complement the growing and important voice of scholars interested in international economic law with a focus on Africa. It will also offer policy makers, practitioners and others interested in these issues a forum to insightfully engage and reflect on developments on international economic law more contemporaneously.
The Editors are James T. Gathii (Loyola Chicago University Law School), Olabisi D. Akinkugbe (Schulich School of Law, Dalhousie University), and Nthope Mapefane (University of Pretoria) both copied on this email.