Views
Case C-191/18 and Us
Open your eyes, we may be next. Or maybe we are already there? Case C- 191/18, KN v Minister for Justice and Equality, is not about PIL. The questions referred to the CJ on March 16, actually relate to the European Arrest warrant (and Brexit). However, PIL decisions are mirroring the same concerns.
It has been reported, for instance, that a Polish district court has refused a Hague child return to England on the basis (inter alia) that Brexit makes the mother`s position too uncertain. A recent case before the Court of Appeal of England and Wales shows that English judges are also struggling with this (see “Brexit and Family Law”, published on October 2017 by Resolution, the Family Law Bar Association and the International Academy of Family Lawyers, supplemented by mainland IAFL Fellows, Feb 2018).
And even if it was not the case: can we really afford to stay on the sidelines?
Needless to say, Brexit is just one of the ingredients in the current European Union melting pot. Last Friday’s presentation at the Comité Français de Droit International Privé, entitled « Le Droit international privé en temps de crise », by Prof. B. Hess, provided a good assessment of the main economic, political and human factors explaining European contemporary mess – by the way, the parliamentary elections in Slovenia on Sunday did nothing but confirm his views. One may not share all that is said on the paper; it’s is legitimate not to agree with its conclusions as to the direction PIL should follow in the near future to meet the ongoing challenges; the author’s global approach, which comes as a follow up to his 2017 Hague Lecture, is nevertheless the right one. Less now than ever before can European PIL be regarded as a “watertight compartment”, an isolated self-contained field of law. Cooperation in criminal and civil matters in the AFSJ follow different patterns and maybe this is how it should be (I am eagerly waiting to read Dr. Agnieszka Frackowiak-Adamska’s opinion on the topic, which seem to disagree with the ones I expressed in Rotterdam in 2015, and published later). The fact remains that systemic deficiencies of the judiciary in a given Member State can hardly be kept restricted to the criminal domain and leave untouched the civil one; doubts hanging over one prong necessarily expand to the other. The Celmer case, C-216/18 PPU, Minister for Justice and Equality v LM, heard last Friday (a commented report of the hearing will soon be released in Verfassungsblog, to the best of my knowledge), with all its political charge, cannot be deemed to be of no interest to us; precisely because a legal system forms a consistent whole mutual trust cannot be easily, if at all, compartmentalized.
The Paris presentation was of course broader and it is not my intention to address it in all its richness, in the same way that I cannot recall the debate which followed, which will be reproduced in due time at the Travaux. Still, I would like to mention the discussion on asylum and PIL, if only to refer to what Prof. S. Courneloup very correctly pointed out to: asylum matters cannot be left to be dealt with by administrative law alone; on the contrary, PIL has a big say and we – private international lawyers- a wide legal scenario to be alert to (for the record, albeit I played to some extent the dissenting opinion on Friday, my actual stance on the need to pair up public and private law for asylum matters is clear in CDT, 2017). Last year the JURI Committee of the European Parliament commissioned two studies (here and here; they were also reported in CoL) on the relationship between asylum and PIL, thus suggesting some legislative initiative might be taken. But nothing has happened since.
Doors open for First Hearing of International Chamber at Paris Court of Appeal
Written by Duncan Fairgrieve (BIICL;Université de Paris Dauphine) and Solenn Le Tutour (avocat, Barreau de Paris)
When the French Government announced in February this year plans to launch an “English” Commercial court in Paris, eyebrows were raised and, it is fair to say, an element of skepticism expressed in the common law world as to whether such a development would really prove to be a serious competitor to the Commercial Courts on Fetter Lane in London. Read more
The Belgian Government unveils its plan for the Brussels International Business Court (BIBC)
Written by Guillaume Croisant, Université Libre de Bruxelles
In October 2017, as already reported in a previous post, the Belgian Government announced its intention to set up a specialised English-speaking court with jurisdiction over international commercial disputes, the Brussels International Business Court (“BIBC”). An update version of the text has finally been submitted to Parliament on 15 May 2018, after the Government’s initial draft faced criticisms from the High Council of Justice (relating to the BIBC’s independence and impartiality, its source of funding and its impact on the ordinary courts) and was subject to the review of the Conseil d’Etat. Read more
News
Thesis Mayela Celis
Our editor Mayela Celis has on 21 October 2022 defended her PhD thesis “El Convenio de La Haya de 1980 sobre los aspectos civiles de la sustracción internacional de menores: cuatro décadas de interpretación evolutiva – Una selección y análisis de los aspectos clave del Convenio de La Haya a la luz de la jurisprudencia de los Estados contratantes” in Madrid (UNED).
Congratulations!
Pax Moot 2023: Peter Nygh round
The case of the Pax Moot Court Peter Nygh round 2023 is out.
The Pax case involves an oil sale, with concerns about the quality of the oil. It concerns various aspects of civil and commercial law as well as insolvency.
The oral rounds of the competition will take place in Antwerp on 3 to 5 May 2023. The full schedule and further information are available on www.paxmoot.eu.
Priskila Penasthika on Unravelling Choice of Law in International Commercial Contracts
Priskila Pratita Penasthika has recently published her PhD thesis with Eleven titled Unravelling Choice of Law in International Commercial Contracts. Indonesia as an Illustrative Case Study
The abstract reads as follows:
Despite the paramount role of choice of law in international contractual relationships, its implementation in various countries remains disparate. Many countries have acknowledged and given effect to choice of law, but some other countries persist in opposing it. The lingering reluctance in enforcing choice of law remains a challenging impediment to cross-border commercial relationships.
Strict adherence to the territoriality principle, absence of special provisions or clear guidelines of choice of law, and difficulties in confirming the content of the chosen foreign law are among the reasons for the reluctance to give effect to choice of law. These circumstances are encountered by some countries, including Indonesia.
This book not only unravels the reasons for Indonesia’s reluctance and its subsequent lack of advancement on choice of law, but also examines possible solutions to the problem. Building on in-depth doctrinal research, supported by qualitative interviews, this research will serve as an essential point of reference for academics, practitioners, and policymakers interested in private international law and cross-border commercial litigation.
About the author:
Priskila Pratita Penasthika is an Assistant Professor in Private International Law at the Faculty of Law, Universitas Indonesia. She graduated with a doctorate in law from Erasmus University Rotterdam.