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No handshake, no citizenship – but with a second wife, everything’s fine?

Two recent judgments of European courts have highlighted the difficulty in finding the right balance between the cultural assimilation of Muslim immigrants demanded by national laws on citizenship and the necessary degree of tolerance towards foreign laws and customs. In a widely reported decision of 11 April 2018, the French Council of State (Conseil d’Etat) ruled that a naturalisation of an Algerian-born woman could be revoked because she had refused to shake hands with a male public servant during the naturalisation ceremony. (more…)

Child Abduction and Habitual Residence in the Supreme Court of Canada

The Supreme Court of Canada, in Office of the Children’s Lawyer v Balev (available here), has evolved the law in Canada on the meaning of a child’s habitual residence under Article 3 of the Hague Convention.  The Convention deals with the return of children wrongfully removed from the jurisdiction of their habitual residence.

A majority of the court identifies [paras 4 and 39ff] three possible approaches to habitual residence: the parental intention approach, the child-centred approach, and the hybrid approach.  The parental intention approach determines the habitual residence of a child by the intention of the parents with the right to determine where the child lives.  This approach has been the dominant one in Canada.  In contrast, the hybrid approach, instead of focusing primarily on either parental intention or the child’s acclimatization, looks to all relevant considerations arising from the facts of the case.  A majority of the court, led by the (now retired) Chief Justice, holds that the law in Canada should be the hybrid approach [paras 5 and 48].  One of the main reasons for the change is that the hybrid approach is used in many other Hague Convention countries [paras 49-50].

The CJEU settles the issue of characterising the surviving spouse’s share of the estate in the context of the Succession Regulation

It has not been yet noted on this blog that the CJEU has recently settled a classic problem of characterisation that has plagued German courts and academics for decades (CJEU, 1 March 2018 – C-558/16, Mahnkopf, ECLI:EU:C:2018:138). The German statutory regime of matrimonial property is a community of accrued gains, i.e. that each spouse keeps its own property, but gains that have been made during the marriage are equalised when the marriage ends, i.e. by a divorce or by the death of one spouse. According to § 1371(1) of the German Civil Code (Bürgerliches Gesetzbuch – BGB), the equalisation of the accrued gains shall be effected by increasing the surviving spouse’s share of the estate on intestacy by one quarter of the estate if the property regime is ended by the death of a spouse; it is irrelevant in this regard whether the spouses have made accrued gains in the individual case. How is this claim to be characterized? (more…)

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Available now: Full recording of the University of Bonn/HCCH Pre-Conference Video Roundtable on The HCCH 2019 Judgments Convention: Prospects for Judicial Cooperation in Civil and Commercial Matters between the EU and Third Countries

On 29 October 2o20, the University of Bonn and the HCCH co-hosted a video roundtable on the HCCH 2019 Judgments Convention.This video roundtable explored the prospects of the Convention from a particular perspective, and this was the perspective of the relations between the EU and third states: neighbouring states, trade partners in particular, but also other states. The organisors were very happy to have received a large number of registrations from all over the world and from all areas of interest. The event was also meant to prepare the “main conference” of the organisors on the Convention, which is planned to be taking place at the University of Bonn on site on 13 and 14 September 2021. The recording of the pre-conference video roundtable is now available on the HCCH’s youtube channel as well as here.

Out now: Jayme/Hausmann (eds.), Internationales Privat- und Verfahrensrecht, 20th ed. 2020

Abbildung von Internationales Privat- und Verfahrensrecht | 20. Auflage | 2020 | beck-shop.de

For those of us who read German: Jayme and Hausmann have just published the 20th edition of their collection of PIL norms on German national, EU and international level. The book has grown considerably in volume over the decades and has particularly done so for its latest edition – from 1441 to now 1537 pages. An indispensable working tool – even in times of the internet.

Out now: Guinchard (ed.), Rome I and Rome II in Practice

Rome I and Rome II in Practice

This book is devoted to the applicable law to contractual and non-contractual obligations in the European Union as applied before the Courts. It should be a valuable resource for practitioners, the judiciary, and academics who are interested in understanding how EU law is applied on national level. The Rome I and II Regulations are meant to provide for uniform conflict-of-laws rules. In theory, all national courts of EU Member States (excluding Denmark) apply the same rules determining the applicable law. Rome I and Rome II in Practice examines whether the theory has been put into practice and assesses the difficulties that may have arisen in the interpretation and application of these Regulations. The book contains a general report by the editor and a number of national reports.