Just released: Journal of Law & Islam / Zeitschrift für Recht & Islam (ZR&I) 12 (2020)

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Volume 11/2019 of the Journal of Law & Islam / Zeitschrift für Recht & Islam (ZR&I) has just been published. The full issue is available online here. It includes case notes and articles devoted to questions of Islamic law and its interaction with other legal systems. Some of the articles are in English.

Editorial …………………………………………………………………………………… (7 f.)

Rechtsprechung & Urteilsberichte (Case Law) ………………………………………………. (9–36)

Bruno Menhofer, Verpflichtung zur Mitwirkung an religiöser Scheidung und Grenze der rechtlichen Bindung –
Anmerkung zum Beschluss des OLG Hamburg vom 25. 10. 2019 – 12 UF 220/17
[Duty to Participate in a Religious Divorce and its Legally Binding Limits – Commentary
on the Ruling of Hamburg?s Higher Regional Court (Oberlandesgericht [OLG] Hamburg)
of 25. 10. 2019 – 12 UF 220/17] ……………………………………………….. (9–14)

Bruno Menhofer, Function follows form – Zur Entscheidung des BGH über die Formbedürftigkeit der Vereinbarung
einer Brautgabe nach deutschem Recht
[Function Follows Form – Comment on the Federal Court of Justice (Bundesgerichtshof [BGH]
Judgment Regarding Formal Requirements of a Dowry Agreement under German Law]    (15–23)

Rike Sinder, Entscheidungsanmerkung zu BVerfG, Beschluss der 2. Kammer des Ersten Senats vom 29. 04. 2020 –
1 BvQ?44/20 – Freitagsgebet im Ramadan in Zeiten von Corona-Verordnungen
[Commentary on the Federal Constitutional Court (Bundesverfassungsgericht [BVerfG]) Order
of the 2nd Chamber of the First Senate of 29 April 2020 – 1 BvQ 44/20 – Friday Prayer
during Ramadan and the COVID-19 Ban on Church Services]    (25–30)

Andrés Ring & Jivesh Chandrayan, Enforcement of UAE Judgments in India.    (31–36)

Articles.    (37–116)

Abdessamad Belhaj, The Jurist’s Resilience: The European Council for Fatwa and Research and the Corona Fatawa.    (37–52)

Ahmed Gad Makhlouf, Ma??hib in der Moderne: Kontinuität und Wandel des traditionellen madhab-Wesens
innerhalb der gegenwärtigen kollektiven Fiqh-Gremien
[Madahib in Modern Times: Continuity and Change of Traditional madhab Scholarship
within Contemporary Collective Fiqh-Comittees]    (53–73)

Ranya Jamil, ‚Fatwa-Import‘ und seine Auswirkungen auf muslimische Minderheiten in Europa
[Fatwa-import and its Impact on Muslim Minorities in Europe]   (75–84)

Mina Moazzeni, S. Kamal Keshiknevis Razavi & Abbas Ahmadvand, Der historiografische Wert von Texten zur Islamischen Rechtswissenschaft (fiqh) – Eine Fallstudie:
Al-Hawi li-l-Fatawi von Galal ad-Din as-Suyuti

[The Historiographical Value of Texts on Islamic Jurisprudence (fiqh) – A Case Study:
Al-Hawi li-l-Fatawi von Galal ad-Din as-Suyuti]    (85–102)

Rana Alsoufi, Ibn Hazm’s Refutations of Causality in Islamic Law (Ibtal at-Talil fi Ahkam ad-Din) (103–116)

Forschungsbericht / Research Report. (117–128)

Susan Rutten, Traditional and Religious Marriages. Research, Practices and Policies in the Netherlands. (117–128)

Rezensionen / Reviews. (129–159)

Sebastian Maisel, Review: Ahmed Abd-Elsalam: Das beduinische Rechtssystem: Konzepte – Modelle –
Transformationen (Beiruter Texte und Studien 136), Würzburg 2015. (129–131)

Björn Bentlage, Review: Shaheen Sardar Ali: Modern Challenges to Islamic Law. Cambridge 2016. (133–135)

Silvia Tellenbach, Rezension zu Olaf Köndgen: The Codification of Islamic Criminal Law in the Sudan –
Penal Codes and Supreme Court Case Law under Numayri and al-Bashir
(Studies in Islamic Law and Society 43), Leiden/Boston 2018. (137–141)

Abir Haddad, Rezension zu Abdurrahim Kozali / Ibrahim Salama / Souheil Thabti (Hgg.): Das islamische
Wirtschaftsrecht (Reihe für Osnabrücker Islamstudien 19), Frankfurt am Main 2016. (143–152)

Achim-Rüdiger Börner, Rezension zu Peter-Christian Müller-Graff (Hg.): EU-Nachbarschaftspolitik – Nordafrika und Nahost
(Schriftenreihe des Arbeitskreises Europäische Integration e. V. 102), Baden-Baden 2017. (153–159)

Tagungsberichte / Conference Reports. (161–205)

Hadi Enayat & Mirjam Künkler, Conference Report: The Politics of Law and the Judiciary in Contemporary Iran –
Aga Khan University (London), December 4, 2018. (161–164)

Mouez Khalfaoui, Tagungsbericht: Islamic Family Law in Europe and the Islamic World.
Symposium am Schloss Herrenhausen (Hannover), 25.–27. September 2019. (165–169)

Mikele Schultz-Knudsen, Conference Report: Islam and Europeanization – Legal Perspectives, Centre for European
and Comparative Legal Studies, Faculty of Law, University of Copenhagen, October 4, 2019. (171–182)

Gianluca Parolin, Conference Report: Words Laying Down the Law: Translating Arabic Legal Discourse,
Aga Khan University, London, UK, October 7 & 8, 2019. (183–194)

Lara-Lauren Goudarzi-Gereke, Conference Report: Law Between Dialogue and Translation: Harmonizing National Law
with International Law – The Case of Women’s Rights in Palestine, University of Göttingen,
Germany, November 5 & 6, 2019. (195–199)

Isabel Schatzschneider & Rosa Shuaibat, Workshop-Bericht: God’s Justice and Animal Welfare, Department Islamisch-Religiöse Studien
an der Friedrich-Alexander-Universität Erlangen-Nürnberg, 13. & 14. Dezember 2019. (201 f.)

Viktor Forian-Szabo, Martin Baumgartner & Leonard Soldo, Conference Report: Modern Law and Institutional Decay – The Ecology of Institutional Transplants
in the Muslim World, University of Vienna, Faculty of Law, February 10 & 11, 2020. (203–205)

Call for Papers (Aufruf zum Einreichen von Beiträgen) (207–210)

Marcus Teo on “NARROWING FOREIGN AFFAIRS NON-JUSTICIABILITY”

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Marcus Teo also recently published an article  with International and Comparative Law Quarterly titled: “Narrowing Foreign Affairs Non-Justiciability.”

The abstract reads as follows:

“The UK Supreme Court’s decision in Belhaj v Straw defined foreign affairs non-justiciability and unearthed its constitutional foundations. However, two decisions since Belhaj—High Commissioner for Pakistan v Prince Muffakham Jah and The Law Debenture Trust Corpn plc v Ukraine—have called Belhaj into doubt, narrowing non-justiciability to give effect to ordinary private law rights. This article analyses these decisions and argues that their general approach of subjecting issues involving transactions between sovereign States to private international law’s framework is desirable, because the constitutional foundations of non-justiciability identified in Belhaj are shaky. Yet, it is suggested that private international law itself may require courts to exercise judicial restraint on these issues, given its goal of upholding the efficient resolution of international disputes in appropriate fora.”

Even Announcement: Deals and Disputes: China, Hong Kong, and Commercial Law

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The University of Pittsburgh Center for International Legal Education (CILE) and Asian Studies Center (ASC) invite you to join us for a timely conference on Deals and Disputes: China, Hong Kong, and Commercial Law on May 18-20, 2021, from 8:00-11:00 a.m. EDT each day.

The May 18 panel will consider the lessons of Changzhou Sinotype Technology Co., Ltd. v. Rockefeller Technology Investments (Asia) in the California courts, considering contract terms, arbitration and litigation strategy, arbitral award and judgment recognition, and the application of the Hague Service Convention.

The May 19 panel will assess international commercial courts and arbitral institutions in Asia, particularly in light of recent developments in Hong Kong.

The May 20 panel will take a broader view of political and legal challenges facing Hong Kong after the National Security Law in June 2020.

Keynote addresses on May 18 and 19 will be given by Professor Susan Finder of Peking University School of Transnational Law, and Antony Dapiran, author of City on Fire: The Fight for Hong Kong.

Registration is free, and can be achieved on the link in the full program for the conference, which is available here.

Pennsylvania lawyers may receive CLE substantive credits for up to 7 hours.

Masterclass about International B2B Contracts and Private International Law organised by IJI and Asser Institute

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The Asser Institute and the IJI are organising a Masterclass about international B2B contracts and private international law. This Masterclass is in Dutch and aimed at lawyers with an international law practice.

For more information on the programme see here: Masterclass 1 IJI Asser

 

UK & Lugano: no

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Thanks to Emmanuel Guinchard for the tip-off.

The European Commission is not agreeing to the the accession by the United Kingdom to the Lugano Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters of 2007. The Convention was applicable in the United Kingdom until 31 December 2020 due to the UK’s membership of the European Union. Since that date the UK is no longer Party to the Convention.

Accession to the Convention is limited: it is open to Members of the European Free Trade Association and EU Member States acting on behalf of certain overseas territories (Art. 70 and 71). If other States wish to accede, the unanimous acceptance by the Contracting States is required (Art. 70 and 72,3). As this is an exernal competence of the European Union (see the Lugano Opinion, 1/03 of 2006 by the European Court of Justice), the European Union should decide on the UK’s request for accession.

The European Commission’s refusal of the UK’s request is based on its assessment of the Lugano Convention’s nature as meant for States with a close regulatory integration with the EU and its view that the Hague Conventions should be used for relations between the EU and third States. Hopefully this means signature and ratification by the EU of the 2019 Hague Judgments Convention soon. Currently the Convention has only been signed by Israel, Ukraine and Uruguay and has not yet entered into force (see status).

The 2005 Hague Choice-of-Court Convention is already in force in the EU and in the UK, along with Mexico, Montenegro and Singapore. Besides these states, China, Israel, North Macedonia, Ukraine and the United States have signed but not yet ratified the convention (see status).

See the Commission’s communication.

Seminar Series ERC project Building EU Civil Justice (online)

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Starting Thursday, 6 May, the ERC Building EU Civil Justice team at Erasmus School of Law will organize a bi-weekly seminar. The series will cover a variety of topics in the field of European civil justice and zoom in on the key topics the ERC group has been working on over the past years. These include the privatization and digitalization of civil justice, cross-border judicial co-operation, international business courts, and self-representation. Each session will bring together invited speakers and one of the ERC researchers. To join us for one or more of these sessions, please register here over Eventbrite.

Thursday, 6 May (15:00-17:00)

The Role of Out-of-Court Justice in the European Enforcement Regime

Friday, 21 May (10:00-12:00)

Modernising European Cross-Border Judicial Collaboration

Friday, 4 June (10:00-12:00)

Digital Constitutionalism and European Digital Policies

Friday, 18 June (10:00-12:00)

The Arbitralization of Justice

Friday, 2 July (10:00-12:00)

Civil Justice Without Lawyers: Moving Beyond an Adversarial System of Adjudication

Friday, 16 July (10:00-12:00)

European Civil Justice in Transition: Past, Present & Future

The first seminar (Thursday, 6 May 15:00-17:00) will deal with the role of out-of-court justice in the European enforcement landscape. Invited speaker Fabrizio Cafaggi (Italian Council of State) will talk about the role of Article 47 EUCHR in shaping the European enforcement triangle (administrative, judicial and ADR). Betül Kas (Erasmus University Rotterdam) will reflect on the role of collective ADR by example of the Volkswagen litigation.

Latest issue Dutch PIL journal (NIPR)

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The latest issue (21/1) of the Dutch journal Nederlands Internationaal Privaatrecht has been published. It includes the following articles.

Vriesendorp, W. van Kesteren, E. Vilarin-Seivane & S. Hinse, Automatic recognition of the Dutch undisclosed WHOA procedure in the European Union / p. 3-17

On 1 January 2021, the Act on Court Confirmation of Extrajudicial Restructuring Plans (‘WHOA’) was introduced into the Dutch legal framework. It allows for extrajudicial debt restructuring outside of insolvency proceedings, a novelty in the Netherlands. If certain requirements – mostly relating to due process and voting – are met, court confirmation of the restructuring plan can be requested. A court-confirmed restructuring plan is binding on all creditors and shareholders whose claims are part of that plan, regardless of their approval of the plan. WHOA is available in two distinct versions: one public and the other undisclosed. This article assesses on what basis a Dutch court may assume jurisdiction and if there is a basis for automatic recognition within the EU of a court order handed down in either a public or an undisclosed WHOA procedure.

Arons, Vaststelling van de internationale bevoegdheid en het toepasselijk recht in collectieve geschilbeslechting. In het bijzonder de ipr-aspecten van de Richtlijn representatieve vorderingen / p. 18-34

The application of international jurisdiction and applicable law rules in collective proceedings are topics of debate in legal literature and in case law. Collective proceedings distinguish in form between multiple individual claims brought in a single procedure and a collective claim instigated by a representative entity for the benefit of individual claimants. The ‘normal’ rules of private international law regarding jurisdiction (Brussel Ibis Regulation) and the applicable law (Rome I and Rome II Regulations) apply in collective proceedings. The recently adopted injunctions directive (2020/1828) does not affect this application.

 Nonetheless, the particularities of collective proceedings require an application that differs from its application in individual two-party adversarial proceedings. This article focuses on collective redress proceedings in which an entity seeks to enforce the rights to compensation of a group of individual claimants.

Collective proceedings have different models. In the assignment model the individual rights of the damaged parties are transferred to a single entity. Courts have to establish its jurisdiction and the applicable law in regard of each assigned right individually.

In the case of a collective claim brought by an entity (under Dutch law, claims based on Art. 3:305a BW) the courts cannot judge on the legal relationships of the individual parties whose rights are affected towards the defendant. The legal questions common to the group are central. This requires jurisdiction and the applicable law to be judged at an abstract level.

Bright, M.C. Marullo & F.J. Zamora Cabot, Private international law aspects of the Second Revised Draft of the legally binding instrument on business and human rights / p. 35-52

Claimants filing civil claims on the basis of alleged business-related human rights harms are often unable to access justice and remedy in a prompt, adequate and effective way, in accordance with the rule of law. In their current form, private international law rules on jurisdiction and applicable law often constitute significant barriers which prevent access to effective remedy in concrete cases. Against this backdrop, the Second Revised Draft of the legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises has adopted a number of provisions on private international law issues which seek to take into account the specificities of such claims and the need to redress the frequent imbalances of power between the parties. This article analyses the provisions on jurisdiction and applicable law and evaluate their potential to ensure effective access to remedy for the claimants.

Conference report

Touw, The Netherlands: a forum conveniens for collective redress? / p. 53-67

On the 5th of February 2021, the seminar ‘The Netherlands: a Forum Conveniens for Collective Redress?’ took place. The starting point of the seminar is a trend in which mass claims are finding their way into the Dutch judicial system. To what extent is the (changing) Dutch legal framework, i.e. the applicable European instruments on private international law and the adoption of the new Dutch law on collective redress, sufficiently equipped to handle these cases? And also, to what extent will the Dutch position change in light of international and European developments, i.e. the adoption of the European directive on collective redress for consumer matters, and Brexit? In the discussions that took place during the seminar, a consensus became apparent that the Netherlands will most likely remain a ‘soft power’ in collective redress, but that the developments do raise some thorny issues. Conclusive answers as to how the current situation will evolve are hard to provide, but a common ground to which the discussions seemed to return does shed light on the relevant considerations. When legal and policy decisions need to be made, only in the case of a fair balance, and a structural assessment thereof, between the prevention of abuse and sufficient access to justice, can the Netherlands indeed be a forum conveniens for collective redress.

 

Latest PhDs

Van Houtert, Jurisdiction in cross-border copyright infringement cases. Rethinking the approach of the Court of Justice of the European Union (dissertation, Maastricht University, 2020): A summary / p. 68-72

The dissertation demonstrates the need to rethink the CJEU’s approach to jurisdiction in cross-border copyright infringement cases. Considering the prevailing role of the EU courts as the ‘law finders’, chapter four argues that the CJEU’s interpretation must remain within the limits of the law. Based on common methods of interpretation, the dissertation therefore examines the leeway that the CJEU has regarding the interpretation of Article 7(2) Brussels Ibis in cross-border copyright infringement cases.

AG Campos Sánchez-Bordona on choice of law to the individual employment contracts under the Rome I Regulation in the joined cases C-152/20 and C-218/20

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On 22 April 2021, Advocate General Campos Sánchez-Bordona presented his Opinion in the joined cases SC Gruber Logistics and Sindicatul Lucratorilor din Transporturi, C-152/20 and 218/20, in which he addresses in a pedagogical manner a number of issues of relevance to the choice of law to an individual employment contract under Article 8 of the Rome I Regulation as well as, indirectly, to the choice made in relation to a consumer contract under Article 6 of the Regulation.

Read more

Symeon C Symeonides on “Private International Law Bibliography 2020: U.S. and Foreign Sources in English”

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Symeon C Symeonides recently published his regular piece with American Journal of Comparative Law  titled “Private International Law Bibliography 2020: U.S. and Foreign Sources in English.”

Arthur Poon on “DETERMINING THE PLACE OF PERFORMANCE UNDER ARTICLE 7(1) OF THE BRUSSELS I RECAST”

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Arthur Poon recently published an article with International and Comparative Law Quarterly titled: “Determining the Place of Performance under Article 7(1) of the Brussels I Recast.”

The abstract reads as follows:

“This article calls for a reassessment of the methodology in determining the place of contractual performance under Article 7(1) of the Brussels I Regulation Recast. The first part of the article deals with Article 7(1)(a). It argues that in light of the adoption of autonomous linking factors under Article 7(1)(b), more types of contracts presently not covered within the ambits of Article 7(1)(b) should centralise jurisdiction at the places of performance of their characteristic obligations. The second part of the article considers the way Article 7(1) operates when there are multiple places of performance under the contract. The test devised by the Court of Justice of the European Union in this regard is not only difficult to apply, but the application of the test also often does not guarantee a close connection between the claim and the court taking jurisdiction. This article argues that when a claim is made in respect of a contractual obligation to be performed in more than one Member State, Article 4 should be applied instead of Article 7(1).”