Views
Sharia law in Greece: Blending European values with Islamic tradition
The Hellenic Republic is the sole EU Member State which provides for the application of Sharia law in its territory for more than a century. A recent amendment is granting Greek Moslems the right to opt-out, and resort to domestic civil law. At the same time, the new law respects the right to opt-in for the application of Sharia law, upon the condition of mutual agreement between the parties.
Law 4511/2018 was enacted on January 15. It contains only one article (the second simply declares that the law will be in force upon publication in the State Gazette), which amends the previous status of Sharia courts in Greece. A new Paragraph (4) is added to Art. 5 Law 1920/1991. By virtue of the new provision, the jurisdiction of the Mufti becomes the exception, whereas (until today) it was the rule for Greek Moslems living in the region of (Western) Thrace. The Mufti has jurisdiction for a vast number of family and succession matters, which are listed under Article 5.2 Law 1920/1991. A prerequisite is that the parties have submitted the above matters to Sharia law.
The new law grants the right to each party to seek Justice before domestic courts, and in accordance with Greek substantive and procedural law. The Mufti may exercise jurisdiction only if both parties file an application for this cause. Once the case is submitted to the Mufti, the jurisdiction of national courts is irrevocably excluded.
In addition, the new law paves the path for a more structured procedure before the Mufti: A drafting Committee will be authorized to prepare a decree, which will shape (for the first time) the Rules and Regulations of the Mufti ‘courts’. Signs of a formalized process are already clearly visible in the new law (Article 4.b).
Inheritance matters are also regulated by the new legislation: In principle they are subjected to Greek law, unless the testator solemnly states before a notary public his wish to submit succession matters to Sharia law. A parallel application of Greek and Sharia law is not permitted. However, revocation of the testator’s declaration is allowed, pursuant to Greek succession law provisions embedded in the Civil Code.
The new law has certainly conflict of laws ramifications too, most notably in light of the recent Sahyouni case of the CJEU. In this respect it is important to underline that all decisions rendered by the Mufti are passing through a hybrid process of domestic exequatur, which is rudimentarily regulated under Article 5.3 Law 1920/1991. Failure to submit the Mufti decisions to domestic courts’ scrutiny, deprives them of res iudicata and enforceability. Hence, EU Member States courts, whenever confronted with a request to recognize or enforce Mufti decisions within their jurisdiction, will always have to examine whether a Greek court has granted full faith and credit to the Mufti’s ruling.
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.
News
RabelsZ: New issue alert (1/2023)
The latest issue of RabelsZ has just been published. It contains the following articles:
Holger Fleischer: Große Debatten im Gesellschaftsrecht: Fiktionstheorie versus Theorie der realen Verbandspersönlichkeit im internationalen Diskurs, pp. 5–45, DOI: 10.1628/rabelsz-2023-0003
Great Debates in Company Law: The International Discourse on Fiction Theory versus Real Entity Theory. – This article opens a new line of research on great debates in domestic and foreign company law. It uses as a touchstone the classical debate on the nature of legal personhood, which was moribund for a time but has recently experienced an unexpected renaissance. The article traces the scholarly fate of fiction theory and real entity theory over time and across jurisdictions. It describes the origins of both theories, explores the processes of their reception in foreign legal systems, and through selected case studies illustrates the areas in which both courts and doctrine to this day have continued to draw on their body of arguments.
Sabine Corneloup: Migrants in Transit or Under Temporary Protection – How Can Private International Law Deal with Provisional Presence?, pp.46–75, DOI: 10.1628/rabelsz-2023-0004
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 or because migration policies– notably externalization measures– prevent them from accessing the territory of their State of destination. As a result, many migrants are stuck 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 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 paper 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.
Hannes Wais: Digitale Persönlichkeitsrechtsverletzungen und anwendbares Recht, pp.76–117, DOI: 10.1628/rabelsz-2023-0005
Digital Infringement of Personality Rights and the Applicable Law. – Under art. 4 para. 1 Rome II Regulation, the law applicable to torts is the law of the state in which the damage occurred. With respect to the violation of personality rights, however, art. 40 para. 1 EGBGB points to the law of the place where the event giving rise to the damage occurred (sent. 1) or, should the victim so decide, the place where the damage occurred (sent. 2). This essay demonstrates that this approach entails an element of unequal treatment and is inconsistent with German substantive law, which tends to favour the tortfeasor over the victim in personality rights cases. These findings give reason to subject the German conflict-of-law rules regarding the infringement of personality rights (which almost exclusively take place online) to an expansive review. The article first discusses the exclusion of personality rights infringements in art. 1 para. 2 lit. g Rome II Regulation and the dormant reform initiative, followed by an analysis of the shortcomings of the solution laid down in art. 40 para. 1 EGBGB. Alternative approaches are subsequently discussed before concluding with a proposal de lege ferenda.
Zheng Sophia TANG: Smart Courts in Cross-Border Litigation, pp. 118–143, DOI: 10.1628/rabelsz-2023-0006
Smart courts use modern technology to improve the efficiency of trials, enabling the parties to access court proceedings from a distance. This advantage is particularly important in cross-border litigation, which is characterised by the cost and inconvenience for at least one party to take part in proceedings abroad. However, although technology can significantly improve procedural efficiency, legal obstacles make efficiency impossible to achieve. This article uses service of proceedings, collecting evidence and virtual hearing as examples to show how the current law, especially the old-fashioned concept of sovereignty, hampers the functioning of technology. In the age of technology, it is necessary to reconceptualise sovereignty. This article argues that private autonomy may be utilised to reshape sovereignty in cross-border litigation procedures and reconcile the conflict between sovereignty and technology.
IEAF Call for Papers: The Perpetual Renewal of European Insolvency Law
The INSOL Europe Academic Forum (IEAF) is inviting submission for its 19th annual conference, taking place from Wednesday 11 – Thursday 12 October 2023 in Amsterdam (the Netherlands). Expressions of interest are invited for the delivery of research papers within the overall theme of the academic conference: “The Perpetual Renewal of European Insolvency Law”.
The conference is intended to focus on, inter alia, the following overall topics:
- Public and social policy and the impact on corporate rescue, and vice versa
- Cross-border issues (recognition, coordination)
- Asset tracing (including crypto assets)
- Competition for cases as a driving force for legislative reform
- International organisations update
- Sustainability and corporate restructuring
- Environmental claims in insolvency
- Transaction avoidance eclipsed in preventive restructuring procedures
- Pre-packs rehabilitated
- Asset partitioning: prudent entrepreneurship or manifestation of opportunism
- Modern issues surrounding directors’ duties to file for insolvency
- The impact and benefit (or not) of creditors’ committees
- EU Preventive Restructuring Directive
The IEAF board also invites submissions on other topics that fall with in the scope of the overall theme of the conference.
Conference methodology
In line with the practice established in our past academic conferences, the intention for the autumn conference is to have research papers that challenge existing approaches, stimulate debate and ask, and attempt to answer, comparative and interdisciplinary questions within the above broadly defined theme. Accordingly, proposals are invited that do more than just outline a topic of interest in respect of any given jurisdiction, but seek to understand, analyse and critique the fundamentals of insolvency and restructuring systems in ways that are relevant across jurisdictions and across fields of academic inquiry. Contributions must be in English.
Presenting at the IEAF conference
Expressions of interest in delivering a paper should be sent by email on or before 1 March 2023 to the IEAF’s Deputy Chair, Dr. Jennifer Gant.
Authors of papers selected for presentation will benefit from a waiver of the participation fee for the academic conference, however, they will be responsible for their own travel and accommodation costs. A limited number of travel grants are available for junior scholars invited to present.
For further information, see: www.insol-europe.org/academic-forum-events
The New Age of Dispute Resolution: Digitization & Evolving Norms
The New Age of Dispute Resolution: Digitization & Evolving Norms
Time: 18:30 – 20:30 pm
Venue: Bracewell LLP New York
When: 13 February Monday 2023
Organized with New York International Arbitration Centre, New York State Bar Association, and American Society of International Law
The event will be held in relation to UNCITRAL’s project on the Stocktaking of Dispute Resolution in the Digital Economy. As part of its stocktaking activities to seek inputs from different parts of the world, the Secretariat is organising this discussion with practitioners and academics in New York on two respective issues: (1) the use of technology in arbitration; and (2) online mediation. Presenters: (Panel 1) Christina Hioureas, Emma Lindsay, Hagit Muriel Elul, Martin Guys and Sherman W. Kahn; (Panel 2) Jackie Nolan-Haley and Sherman W. Kahn.