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
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.
Sustainable European private international law – the SEPIL perspective
This post was written by Jachin Van Doninck (SEPIL coordinator, Vrije Universiteit Brussels) and Jerca Kramberger Škerl (University of Ljubljana)
It is fair to say that the attention for sustainability and sustainable development has seen a steady increase. The past decade, the United Nations has set out the Sustainable Development Goals (SDGs), based on the urgent need to shift the world onto a sustainable and resilient path. These SDGs are finding their way into policy making on every level and are also inspiring research in the legal field.[i] Recent scholarship has raised awareness for the potential of private international law to strengthen the SDGs’ plan of action (e.g. the seminal work edited by R. MICHAELS, V. RUIZ ABOU-NIGM and H. VAN LOON, 2021).[ii] Private International Law is also and increasingly being classified as a governance tool[iii] of a political nature.[iv]
The SEPIL network, funded by the EUTOPIA UNIVERSITY alliance explores the sustainability of European private international law as a system, i.e. in itself. Thus, the project’s intention was to move away from existing research on how private international law can be instrumentalized for the purpose of attaining the greater good (e.g. the Shell cases in The Netherlands and in the UK, reported on the conflictoflaws blog), and to question to what extent sustainability can (or must) exert a system-building function within this area of the law. Taking into account that PIL acts as potent tool for achieving the SDGs, the research group delved into the question of the sustainability of this tool in itself, thus ‘operating’ mainly within the SDG 16 (Peace, Justice and Strong Institutions).
SEPIL organised two closed seminars in Ljubljana (29-30 September 2022) and Brussels (24-25 October 2022). The goals of the meetings were threefold:
- to catch up with the state of the art of the research on sustainability and law, both regarding the individual SDGs and the sustainability of law;
- to try to delimitate the question(s) of PIL as a tool to achieve sustainable development and sustainability as a tool to enhance PIL;
- to explore the research potential of the aforementioned SEPIL idea.
The Ljubljana edition was kicked off by Anna Maria Wilmot (VUB), who presented an outline of her current PhD research on the interplay between sustainability and the Belgian system of civil adjudication. She explained how any attempt at a systemic appraisal of the sustainability of European private international law would have to begin with a clear understanding of sustainability as a layered concept. Jachin Van Doninck (also at VUB) connected Anna Maria’s research with the SEPIL project by elaborating on how legal scholarship and the courts are heavily involved in instrumentalizing private international law for the purpose of attaining sustainability and sustainable development. He pointed out that a fundamental analysis of the sustainability of private international law itself is lacking, which is precisely where SEPIL’s research focus would lie. University of Ljubljana’s Jerca Kramberger Škerl continued with an overview of the UN Sustainable Development Goals and a short presentation on how private international law can, first, serve as a tool to attain those goals, and second, adapt itself to respect those goals. In the afternoon, these SDGs were made concrete through topical examples. A first one was offered by University of Gothenburg’s Anna Wallerman Ghavanini through her presentation on judicial protection for victims of discrimination in EU private international law, explaining that effective access to justice (SDG 16) for victims of discrimination (SDG 5) reveals shortcomings in the current private international law framework. Second, University of Ljubljana’s Filip Dougan focused on the interplay between the UN Sustainable Development Goal 5 (Gender Equality) and the EU private international law. Erik Björling, also from the University of Gothenburg, then challenged our thinking with the question “Can retrospective civil procedure be prospective?”. Using notions of procedural legal theory (naming, blaming, claiming, rational discourse, reduction of complexity), he touched on several core issues of private international law such as jurisdiction, choice of law and enforcement. The stage had been set for the Brussels edition.
Conference: The Law of Treaties as Applied to Private International Law, Milan, 5-6 May 2023
A conference on “The Law of Treaties as Applied to Private International Law” will take place at the Catholic University of Milan on 5 and 6 May 2023, under the auspices of the Italian Society of International Law and EU Law (SIDI) and the European Association of Private International Law (EAPIL).
The event aims to discuss the impact of the rules of treaty law on the formation, interpretation and implementation of international conventions laying down rules of private international law, and to assess whether, and in which way, the specific object and features of private international law have a bearing on the operation of the law of treaties in this area.
Speakers and chairs include Paul Beaumont (University of Stirling), Catherine Brölmann (University of Amsterdam), Sergio Carbone (University of Genova, Emeritus), Luigi Crema (University of Milan), Zeno Crespi Reghizzi (University of Milan), Pedro De Miguel Asensio (Complutense University of Madrid), Malgosia Fitzmaurice (Queen Mary University of London), Burkhard Hess (Director of the Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law), Patrick Kinsch (University of Luxembourg), Catherine Kessedjian (University Paris II Panthéon-Assas, Emerita), Jan Klabbers (University of Helsinki, TBC), Antonio Leandro (University of Bari), Alex Mills (University College London), Etienne Pataut (University Paris I – Panthéon-Sorbonne), Andrea Schulz (German Federal Ministry of Justice), Jean-Marc Thouvenin (University of Paris Nanterre; Secretary-General of The Hague Academy of International Law), Chiara Tuo (University of Genova), Hans van Loon (former Secretary-General of the Hague Conference on Private International Law), and Jan Wouters (KU Leuven).
A roundtable on “The role of IGOs in the elaboration, implementation and coordination of private international law treaties”, chaired by Fausto Pocar (University of Milan, Emeritus), will feature interventions by Luca Castellani (Secretary of Working Group IV (Electronic Commerce) – Uncitral), Nicolas Nord (Secretary-General of the International Commission on Civil Status), Andreas Stein (Head of Unit (Civil Justice) at the European Commission Directorate-General for Justice and Consumers – Civil and commercial justice) and Ignacio Tirado (Secretary-General of the International Institute for the Unification of Private Law (Unidroit), among others.
A key-note speech will be delivered by Maciej Szpunar (Judge at the Court of Justice of the European Union, TBC). Closing remarks will be provided by Stefania Bariatti (University of Milan).
The conference, in English, will be on-site only.
See the full programme and the registration form. Early bird rates are offered to those registering before 6 March 2023.
For further information: pietro.franzina@unicatt.it.