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Japanese Supreme Court Renders Decision on Hague Abduction Convention
On December 21, 2017, the Japanese Supreme Court rendered a decision on the Hague Abduction Convention. The Court upheld a lower court decision in favor of the Japanese mother, even though she had turned back on her promise to return the kids from a visit to Japan, and even though that same court had earlier issued a return order in favor of the American father. The matter had received international press attention, and even a Congressional subcommittee hearing.
Japan had long refused to join the Hague Convention, and when it did, in 2014, critical observers already expected that courts would find ways to undermine it. Those observers see themselves vindicated.
Colin Jones reports critically on the decision; he has previously written on Japan’s joining the Convention and on reluctance to enforce it. Useful background from the Law Library of Congress is here.
Japanese accession to the Convention has been a frequent scholarly topic, both in Japan and elsewhere. Yuko Nishitani, who had already written about “International Child Abduction in Japan” in (2006) 8 Yearbook of Private International Law 125-143, and who wrote a long report (in Japanese) for the Japanese Ministry in 2010, provided a brief analysis in 2011. Dai Yokomizo discussed the accession in (2012) Revue critique 799; Jun Yokohama did so in the Mélanges van Loon (2013, pp 661-72). Vol. 57 (2014) of the Japanese Yearbook of International Law contains articles by Tatsuki Nishioka and Takako Tsujisaka, Masayuki Tanamura, Masako Murakami, Martina Erb-Klünemann, and Nigel Vaughan Lowe. Takeshi Hamano helpfully explains the Japanese reluctance with regard to the Japanese ideology of the family. Outside of Japanese authors, Barbara Stark and Paul Hanley wrote most recently in the United States; the topic is also addressed in several student notes. The accession was also discussed by Bengt Schwemann (in German) and Francisco Barberán Pelegrín (in Spanish).
UKSC on Traditional Rules of Jurisdiction: Brownlie v Four Seasons Holdings Incorporated
Shortly before Christmas the UKSC released its decision on jurisdiction in Brownlie v Four Seasons Holdings Incorporated (available here). Almost all the legal analysis is obiter dicta because, on the facts, it emerges that no claim against the British Columbia-based holding corporation could succeed (para 15) and the appeal is allowed on that basis. I suppose there is a back story as to why it took a trip to the UKSC and an extraordinary step by that court (para 14) for the defendant to make those facts clear, but I don’t know what it is. On the facts there are other potential defendants to the plaintiffs’ claim and time will tell whether jurisdictional issues arise for them.
The discussion of the value of the place of making a contract for jurisdiction purposes is noteworthy. In para 16 two of the judges (Sumption, Hughes) are critical of using the traditional common law rules on where a contract is made for purposes of taking jurisdiction. This has been the subject of debate in some recent Canadian decisions, notably the difference in approach between the Court of Appeal for Ontario and the Supreme Court of Canada in Lapointe Rosenstein Marchand Melançon LLP v Cassels Brock & Blackwell LLP, 2016 SCC 30 (available here). The SCC was fine with using the traditional rules for this purpose. In Brownlie, I do not think it is clear as to what view the other three judges take on this point.
Even more interestingly, the UKSC judges split 3-2 on how to understand the idea of damage in the forum as a basis for jurisdiction. Three judges (Hale, Wilson, Clarke) retain the traditional broad common law view – the position in many Canadian provinces prior to Club Resorts Ltd v Van Breda, 2012 SCC 17 (available here) – that ongoing suffering in the forum in respect of a tort that happened abroad is sufficient. Two judges (Sumption, Hughes) reject that approach and adopt a more narrow meaning of damage in the forum (it must be direct damage only).
This 3-2 split is closer even than it might first seem, since Lord Wilson (para 57) suggests that in a different case with fuller argument on the point the court might reach a different result.
Canadian law does not get a fair description in the UKSC decision. The court notes twice (para 21 and para 67) that Canada’s common law uses a broad meaning of damage for taking jurisdiction. Club Resorts, and the change to the law it represents on this very issue, is not mentioned. This is yet another illustration of the importance of being careful when engaging in comparative law analysis.
Conflicts – Between Domestic and Indigenous Legal Systems?
In Beaver v Hill, 2017 ONSC 7245 (available here) the applicant sought custody, spousal support and child support. All relevant facts happened in Ontario. Read more
News
Virtual Workshop on October 4: Sabine Corneloup on Migrants in Transit or Under Temporary Protection
On Tuesday, October 4, 2022, the Hamburg Max Planck Institute will host its 26th monthly virtual workshop Current Research in Private International Law at 11:00 a.m. -12:30 p.m. (CEST). Prof. Sabine Corneloup (Paris-Panthéon-Assas University) will speak, in English, about the topic
Migrants in Transit or Under Temporary Protection: How Can Private International Law Deal With Provisional (But Not Necessarily Short-Term) Presence?
An increasing number of migrants are provisionally present in the territory of a State other than their State of origin, be it because they are granted temporary protection until they can return to their country of origin (4 million refugees from Ukraine registered for Temporary Protection in Europe), or because migration policies – notably externalization measures – prevent them from accessing the territory of their State of destination. As a result, many migrants are blocked for months if not years in transit countries at the external borders of Europe, before being able to resume their migratory route. Their provisional presence, which initially was meant to remain transitional and short-term, often becomes indefinite. In the meantime, life goes on: children are born, couples marry and divorce, parental child abductions take place etc.
How can Private International Law deal with these situations? The presentation aims to explore PIL connecting factors, such as nationality, habitual residence and mere presence, and assess their appropriateness for migrants on the move or under temporary protection. The 1951 Geneva Refugee Convention, which requires that the personal status of refugees be governed by the law of domicile or residence, does not provide an answer to all difficulties.
The presentation will be followed by open discussion. All are welcome. More information and sign-up here.
If you want to be invited to these events in the future, please write to veranstaltungen@mpipriv.de.
Call for submissions: Kim Santow Law and Social Justice Essay Prize
Sydney Law School is pleased to announce the inaugural Kim Santow Law and Social Justice Essay Prize. For more information, see here.
Kim Santow Law and Social Justice Essay Prize 2022: Rules
- The Kim Santow Law and Social Justice Essay Prize is open to any student enrolled in an LLB or JD degree program at an Australian tertiary institution at the time of submission or within the previous six months.
- Essays must have been written in the 12 months before the submission deadline. A person may not submit more than one essay to the Competition in any given year.
- Essays must respond to the following proposition:
The NDIS is described as a shift from a welfare system to a market-based system, but there may be limitations in relying on competition and choice in the provision of disability support. Discuss. - Essays must be no more than 3,000 words. Essays exceeding this word limit will not be accepted. Footnotes if used, and bibliographies (required), are not included in the final word count.
- Essays must be submitted as a .pdf document by email to <law.reform@sydney.edu.au>.
- The deadline for submission of essays is 5.00 pm (AEDT) on Monday 31 October, 2022. No extensions will be allowed.
- Essays must meet the highest standards of academic integrity, and be fully and accurately referenced according to a recognised referencing standard (eg, AGLC, Harvard, MLA).
- Each person submitting an essay must declare that the essay is the person’s own original work. By submitting an essay, a person agrees that Sydney Law School may conduct an integrity check for copyright infringement or plagiarism.
- An essay that is submitted to the Competition must be accompanied by a separate cover page stating:
a. the author’s name, contact email and telephone number
b. a declaration of enrolment (see rule 1)
c. a declaration of time (see rule 2)
d. a declaration of integrity (see rule 7) - A submitted essay must not include any information – for example in a header or footer – that identifies the author, so that it can be marked anonymously.
- Eligible essays will be reviewed by a panel of experts against the following criteria:
1. Novelty: does the essay address a cutting-edge issue and/or contribute a novel perspective or analysis to the question
2. Argument: is the argument clear, compelling, well-developed and supported by evidence?
3. Clarity and structure: is the essay written clearly and concisely, and organised in a logical and effective way?
4. Accuracy: is the essay presented neatly and legibly, with few or no content, typographical, grammatical and referencing errors? - The best essay will be announced on 1 December, 2022 at the Kim Santow Experts Panel on Social Justice to be hosted at the Sydney Law School. The decision of the judging panel is final.
- The judging panel may in its discretion decline to award prizes.
- Subject to rule 13, the author of the Winning Essay will each receive a prize of AU$1000.
- The author of the Winning Essay will be offered academic support and advice to revise their work for submission for publication.
- The author of the Winning Essay agrees that if their essay is published (by any means, in any forum), that its publication will be accompanied by an acknowledgment that the essay won the Prize in the relevant year.
Please direct any inquiries to Mr Josh Pallas at <law.reform@sydney.edu.au>.
Call for papers: 2023 NGPIL Conflict of Laws’ Essay Prize
The Nigeria Group on Private International Law “(NGPIL”) invites submissions for the annual NGPIL Conflict of Laws’ Competition. The winner will be awarded for the best essay on any aspect of Nigerian conflict of laws. Entries will be accepted from the following: an undergraduate and/or postgraduate scholar studying in Nigeria, or any Nigerian lawyer five years call or below practising and residing in Nigeria. The essay should be unpublished at the time of submission. Submitted essays should be in the English language. Submitted essays should also be within five to eight thousand words. Competitors may be citizens of any nation, age or gender but must be an undergraduate and/or postgraduate scholar studying in Nigeria, or any lawyer below five years post-call experience practising and residing in Nigeria.
The first prize is ?120,000 Naira (NGN), and the winner of the competition will be encouraged to publish the paper in any high-quality peer reviewed journal on private international law (conflict of laws). The second prize is ?80,000 Naira (NGN), and third prize is ?50,000 Naira (NGN). The prize is sponsored by and will be awarded by NGPIL.
Submissions to the Prize Committee must be received no later than January 9, 2023. Entries should be submitted by email in Word or pdf format. The winner will be announced no later than 2 months after the deadline. Decisions of the NGPIL on the winning essay and on any conditions relating to this prize are final. Submissions and any queries should be addressed by email to ngpilaw@gmail.com. All submissions will be acknowledged by e-mail.