Views
Much-awaited draft guidelines on the grave risk exception of the Child Abduction Convention (Art. 13(1)(b)) have been submitted for approval
After years in the making, the revised HCCH draft Guide to Good Practice on Article 13(1)(b) of the Child Abduction Convention has been completed and is accessible here. It has been submitted to the governance body of the Hague Conference on Private International Law (i.e. the Council on General Affairs and Policy) for approval.
There are five exceptions under the Child Abduction Convention and this is one of them; see also Arts 12(2), 13(1)(a), 13(2) and 20 of the Convention. Under this exception, the judicial or administrative authority of the requested State may refuse to return the child to his or her State of habitual residence following a wrongful removal or retention.
According to the latest survey of the Hague Conference of applications made in 2015, the refusals on the basis of Article 13(1)(b) of the Child Abduction Convention amount to 18% of the total judicial refusals. Thus, this is the most frequently raised exception. Other grounds for judicial refusal relate to the scope of the Convention (such as the lack of habitual residence or rights of custody). See the survey available here (p. 15).
Article 13(1)(b) contains the following three different types of risk:
- a grave risk that the return would expose the child to physical harm;
- a grave risk that the return would expose the child to psychological harm; or
- a grave risk that the return would otherwise place the child in an intolerable situation.
Particularly useful for practitioners are the examples of assertions that can be raised under this exception, which include but are not limited to (see paras 53-77):
- Domestic violence against the child and / or the taking parent
- Economic or developmental disadvantages to the child upon return
- Risks associated with circumstances in the State of habitual residence
- Risks associated with the child’s health
- The child’s separation from the taking parent, where the taking parent would be unable or unwilling to return to the State of habitual residence
- Separation from the child’s sibling(s)
In my opinion, the Child Abduction Convention, and in particular this exception, can no longer be interpreted in a vacuum and one should also look to the human rights case law which is quickly developing in this area (in addition to the applicable regional regulations).
Belgian Journal of Private International Law: Cautio judicatum solvi and surrogacy (among other things)
Please see the the last issue of 2018 of the Belgian Journal of Private International Law here.
Besides the latest judgments by the Court of Justice of the European Union, it also contains case law of the Belgian Constitutional Court and courts of appeal. The cases are in Dutch or French.
The judgment of the Constitutional Court (of 11 October 2018) concerned the response to a question posed to this court by the Commercial Court of Liège (p. 14 pof the issue). It involved the so-called cautio judicatum solvi. The question was whether the fact that only foreign national plaintiffs can be requested to give a warranty for costs infringes the Belgian Constitution, particularly its Articles 10 and 11 guaranteeing equality and prohibiting discrimination. The Court referred to the limitations that the Court of Justice of the EU had already set to the application of the cautio (it cannot be used against EU citizens). Moreover, the provision only applies in the absence of international conventions eliminating the cautio.The issue in this case was that Belgian plaintiffs living abroad (in Ecuador in the current instance), even if they have no assets in Belgium cannot be subjected to such warranty. The court found that the cautia juricatum solvi (Art. 851 of the Code of Civil Procedure) infringes the Constitution. The differentiation in treatment is not justifiable as it is not the plaintiff’s nationality but his or her residence outside Belgium and lack of property in Belgium that can cause the defendant to fear that he or she will not be able to recover costs. The Court left the provision intact and gave the legislator until 31 August 2019 to fix it.
* In the meantime, on 24 Januari 2019, a legislative proposal was submitted to delete the cautio judicatum solvi from the Code of Civil Procedure.
Other judgments deal with the attribution of Belgian nationality, with parentage and with the recognition of marriages.
A judgment by the Court of Appeal of Brussels (judgment of 10 August 2018) addresses the recognition of the parentage of twins born out of a surrogate mother in California (p. 15 of the issue). The Californian judgment establishing the parentage of two men (one Belgian and one French) was at issue. The Court of appeal recognised the Californian judgment, thus recognising both fathers as parents. The Court considered two grounds for refusal (under Art. 25 of the Belgian Code of Private International Law). First it found that the recognition of the judgment would not amount to a result that was manifestly contrary to public policy. The Court on the other hand found that the intending fathers did attempt to evade the law that would have been applicable, i.e. Belgian law as the intended father whose parentage was at issue had Belgian nationality (and this law governs parentage according to Art. 62 of the Belgian Code of Private International Law). However, the Court, after considering the particular situations of the children and the facts surrounding the case, found that the best interests of the children had the result that the parentage should be recognised in this case.
* See also the case note (in French) by Patrick Wautelet entitled “De l’intérêt supérieur de l’enfantcomme facteur de neutralisation de la fraude à la loi” (On the best interests of the child as a neutralising factor for evasion of the law) at p. 61 of the issue.
The U.S. Arbitration-Litigation Paradox
The U.S. Supreme Court is well-known for its liberal pro-arbitration policy. In The Arbitration-Litigation Paradox, forthcoming in the Vanderbilt Law Review, I argue that the U.S. Supreme Court’s supposedly pro-arbitration stance isn’t as pro-arbitration as it seems. This is because the Court’s hostility to litigation gets in the way of courts’ ability to support arbitration—especially international commercial arbitration.
This is the arbitration-litigation paradox in the United States: On one hand, the U.S. Supreme Court’s hostility to litigation seems to complement its pro-arbitration policy. Rising barriers to U.S. court access in general, and in particular in transnational cases (as I have explored elsewhere), seems consistent with a U.S. Supreme Court that embraces arbitration as an efficient method for enforcing disputes. Often, enforcement of arbitration clauses in these cases leads to closing off access to courts, as Myriam Gilles and others have documented.
But there’s a problem. As is perhaps obvious to experts, arbitration relies on courts—for enforcing arbitration agreements and awards, and for helping pending arbitration do what it needs to do. So closing off access to courts can close access to the litigation that supports arbitration. And indeed, recent Supreme Court cases narrowing U.S. courts’ personal jurisdiction over foreign defendants have been applied to bar arbitral award enforcement actions. Courts have also relied on forum non conveniens to dismiss award-enforcement actions.
That’s one way in which trends that limit litigation can have negative effects on the system of arbitration. But there’s another way that the Court’s hostility to litigation interacts with its pro-arbitration stance, and that’s in the arbitration cases themselves.
The Supreme Court has a busy arbitration docket, but rarely hears international commercial arbitration cases. Instead, it hears domestic arbitration cases in which it often states that the “essence” of arbitration is that it is speedy, inexpensive, individualized, and efficient—everything that litigation is not.
(As an aside, this description of the stark distinction between arbitration and litigation is widely stated, but it’s a caricature. The increasingly judicialized example of international commercial arbitration shows this is demonstrably false. As practiced today, international commercial arbitration can be neither fast, nor cheap, nor informal.)
But in the United States, arbitration law is mostly trans-substantive. That means that decisions involving consumer or employment contracts often apply equally to the next case involving insurance contracts or international commercial contracts.
In the paper, I argue that the Court’s tendency to focus on arbitration’s “essential” characteristics, and to enforce these artificial distinctions between arbitration and litigation, can be harmful for the next case involving international commercial arbitration. It could undermine the likelihood of enforcement of arbitration awards where the arbitral procedure resembled litigation or deviated from the Court’s vision of the “essential virtues” of arbitration.
To prevent this result, I argue that any revisions of the U.S. Federal Arbitration Act should pay special attention not only to fixing the rules about consumer and employment arbitration, but also to making sure that international commercial arbitration is properly supported. In the meantime, lower federal courts should pay no heed to the Supreme Court’s seeming devotion to enforcing false distinctions between arbitration and litigation, particularly in the international commercial context.
News
Opinion of AG Emiliou on stay of enforcement of final return order in the case C-638/22 PPU
In the case Rzecznik Praw Dziecka and Others, C-638/22 PPU, a Polish court asks the Court of Justice in essence whether, in accordance with the Brussels II Regulation and The 1980 Hague Convention on the Civil Aspects of International Child Abduction, a Member State may provide for the possibility of an appeal in cassation (in practice: a third judicial instance) involving a stay of enforcement of a final return order on a simple application by one of the public entities entitled to lodge such an appeal.
AG Emiliou states from the outset that this question calls for a negative answer. His Opinion explains why this is the case.
A summary of the facts of the case reported here case has been already posted online by Marta Requejo Isidro so I am happy to refer to her contribution.
The urgency of the matter has compelled the Court to submit the case, at the request for the referring court, to the urgent preliminary ruling procedure provided for in Article 107 of the Rules of Procedure of the Court of Justice.
I might add that the provision of national law that made the aforementioned stay of enforcement possible entered into force on 24 June 2022 and the request for a preliminary ruling has been brought before the Court of Justice already on 13 October 2022.
Concerning the preliminary question itself, in his Opinion, AG Emiliou recognizes that the 1980 Hague Convention and the Brussels II bis Regulation do not unify the procedural rules applicable to return applications based on that Convention. Those issues are left to the procedural law of the Member State where a request for a return order is made (point 52).
Nevertheless, the competence of the Member States has its limits. For AG Emiliou, those limits are not respected by the Polish provision in question.
Advocate General argues that by adopting the provision in question, the Polish legislator has exceeded the limits of its competence: he has rendered the return proceedings ineffective. Furthermore, in doing so, the legislator has also limited the fundamental right to respect for family life and the fundamental right to an effective remedy of the parent requesting the return, despite there being no compelling justification for such limitation and the negative consequences it entails (point 54).
All those aspects are addressed in a detailed manner in the Opinion, so there is still a lot to unpack.
The Opinion is available here (so far only in French).
Draft UNIDROIT Principles on Digital Assets and Private Law – Public Consultation
As part of the UNIDROIT Project on Digital Assets and Private Law, UNIDROIT has launched a Public Consultation to solicit comments and feedback on a set of Draft Principles and Commentary which have been prepared by its Working Group over the course of 7 sessions between 2020-2022. These Principles have been drafted to provide guidance to legislators, judges, practitioners, and the industry involved in the digital asset economy with regard to issues of private law. This includes issues regarding the definition of a digital asset, the importance of control, matters related to transfer of digital assets, custody relationships, conflicts of law, secured transactions, enforcement, and insolvency. The text contains a detailed introduction which explains what the Principles seek to do. UNIDROIT now looks for comments. All the relevant information can be found on this page. All comments should be provided using this online form. The Secretariat is seeking wide distribution of the consultation.
One Private International Law Article published in the First Issue of the International and Comparative Law Quarterly for 2023
One recent article on private international law was published today in International and Comparative Law Quarterly:
A Chong, “Characterisation and Choice of Law for Knowing Receipt”
Knowing receipt requires the satisfaction of disparate elements under English domestic law. Its characterisation under domestic law is also unsettled. These in turn affect the issues of characterisation and choice of law at the private international law level, as knowing receipt sits at the intersection of the laws of equity, restitution, wrongs and property. This article argues that under the common law knowing receipt ought to be considered as sui generis for choice of law purposes and governed by the law of closest connection to the claim. Where the Rome II Regulation applies, knowing receipt fits better within the tort rather than unjust enrichment category and the escape clause in Article 4(3) of the Regulation ought to apply.