Views
The Supreme Court deals the death blow to US Human Rights Litigation
Written by Bastian Brunk, research assistant and doctoral student at the Institute for Comparative and Private International Law at the University of Freiburg (Germany)
On April 24, the Supreme Court of the United States released its decision in Jesner v Arab Bank (available here; see also the pre-decision analysis by Hannah Dittmers linked here and first thoughts after the decision of Amy Howe here) and, in a 5:4 majority vote, shut the door that it had left ajar in its Kiobel decision. Both cases are concerned with the question whether private corporations may be sued under the Alien Tort Statute (ATS). Read more
No handshake, no citizenship – but with a second wife, everything’s fine?
Two recent judgments of European courts have highlighted the difficulty in finding the right balance between the cultural assimilation of Muslim immigrants demanded by national laws on citizenship and the necessary degree of tolerance towards foreign laws and customs. In a widely reported decision of 11 April 2018, the French Council of State (Conseil d’Etat) ruled that a naturalisation of an Algerian-born woman could be revoked because she had refused to shake hands with a male public servant during the naturalisation ceremony. Read more
Child Abduction and Habitual Residence in the Supreme Court of Canada
The Supreme Court of Canada, in Office of the Children’s Lawyer v Balev (available here), has evolved the law in Canada on the meaning of a child’s habitual residence under Article 3 of the Hague Convention. The Convention deals with the return of children wrongfully removed from the jurisdiction of their habitual residence.
A majority of the court identifies [paras 4 and 39ff] three possible approaches to habitual residence: the parental intention approach, the child-centred approach, and the hybrid approach. The parental intention approach determines the habitual residence of a child by the intention of the parents with the right to determine where the child lives. This approach has been the dominant one in Canada. In contrast, the hybrid approach, instead of focusing primarily on either parental intention or the child’s acclimatization, looks to all relevant considerations arising from the facts of the case. A majority of the court, led by the (now retired) Chief Justice, holds that the law in Canada should be the hybrid approach [paras 5 and 48]. One of the main reasons for the change is that the hybrid approach is used in many other Hague Convention countries [paras 49-50].
The dissent (three of the nine judges) would maintain the parental intention approach [para 110]. One of its central concerns is the flexibility and ambiguity of the hybrid approach [para 111], which the judges worry will lead to less clarity and more litigation. Wrongful removal cases will become harder to resolve in a timely manner [paras 151-153].
The majority did not apply the law to the facts of the underlying case, it having become moot during the process of the litigation [para 6]. The court rendered its decision to provide guidance going forward. The dissent would have denied the appeal on the basis that the child’s habitual residence was in Germany (as the lower courts had held).
The court briefly addresses the exception to Article 3 in what is commonly known as “Article 13(2)” (since it is not numbered as such) – a child’s objection to return – setting out its understanding of how to apply it [paras 75-81 and 157-160].
The Supreme Court of Canada has recently adopted the practice of preparing summaries of its decisions (available here for this decision) to make them more accessible to the media and the public. These are called “Cases in Brief”.
News
German professors comment on the Commission Proposal for a Regulation on Parenthood
Discussion on the Commission Proposal for a Regulation on Parenthood is intensifying – recall the virtual workshop by Tobias Helms in February and the current regular webinars on the proposal. Now, a group of German professors (including Helms) that calls itself “the Marburg group” has published critical comments. Their verdict: “The Marburg Group welcomes the initiative of the Commission. The Group embraces the overall structure of the Parenthood Proposal. Nevertheless, it suggests some fundamental changes, apart from technical amendments.”
For details, see here.
Chinese Journal of Transnational Law Special Issue Call for Papers
The appeal of alternative dispute resolution (ADR) mechanisms is on the rise and so is also the pull to prevent international disputes from arising altogether. In the area of cross-border commercial and investment disputes, the renewed interest in the interface between dispute prevention and alternative dispute resolution springs from a growing awareness of the need to overcome the shortcomings of arbitration. This is shown by the recent setting up of a series of new ‘global labs’ in international commercial resolution provided with new diversified and integrated commercial dispute resolution mechanisms linking ‘mediation, arbitration and litigation’ in recent years. Equally indicative of this trend is the entering into force of the UN Convention on International Settlement Agreements Resulting from Mediation (The Singapore Convention) in September 2020 and that ‘dispute prevention and mitigation’ has become one of the most dynamic focal points for UNCITRAL Working Group III mandated with examining the reform of investor-state dispute settlement.
However, the contemporary move towards devising more effective preventive ‘cooling off’ mechanisms, increasing the transnational appeal of mediation and, when feasible, sidestepping altogether the need to resort to third-party judicialized processes is not unique to international commercial and investor-state dispute resolution. At a time of backlash against international courts and tribunals, prevention and alternative dispute settlement mechanisms are gaining momentum across both established and emerging areas of public, private and economic international law.
Against this background, the inaugural issue of the Chinese Journal of Transnational Law to be published in 2024 invites submissions that engage critically with the on-going transformation of the transnational dispute settlement system in an increasingly multipolar international legal order in which a paradigm shift away from the Western-model of international adversarial legalism and towards de facto de-judicialization is arguably gaining hold.
Topics on which the contributions could focus on include, but are not limited to:
*Transnational Dispute Prevention and Settlement in international trade law
*Transnational Dispute Prevention and Settlement in emerging areas: cyberspace, outerspace etc.
* Transnational Dispute Prevention and Settlement in international environmental law
* Transnational Dispute Prevention and Settlement in international commercial disputes
*Transnational Dispute Prevention and Settlement in Investor-State dispute settlement
*Transnational Inter-State Dispute Prevention and Settlement in inter-state disputes under general public international law
Contributors may choose between: Research articles (up to 11,000 words inclusive of footnotes) or short articles (up to 6,000s inclusive of footnotes). Those interested, please submit your contribution before 31 Aug 2023 through the journal homepage.
UNCCA Seminar on the New York Convention
The UNCITRAL National Coordination Committee for Australia (UNCCA) is an organisation comprised of members of the Australian legal community, dedicated to promoting the work of The United Nations Commission on International Trade Law (UNCITRAL) in Australia.
UNCCA invites you to our 8th annual May Seminar in Canberra celebrating the 75th anniversary of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. Join us for a full day conference to celebrate this anniversary whilst learning about the work of UNCITRAL and its Working Groups. We welcome Justice Kevin Lyons KC (Supreme Court of Victoria) as our keynote speaker. Our panels will include presentations by Bronwyn Lincoln (Partner, , Thomson Geer), Romesh Weeramantry (Special Counsel, Clifford Chance), Drossos Stamboulakis (Barrister, Senior Lecturer, Monash University), Dr. Benjamin Hayward (Senior Lecturer, Monash Business School). The Attorney General’s Department will also provide a presentation on their work on international trade law.
This seminar promises to be an exciting full-day event hosted at the Ann Harding Centre, located at 24 University Drive South, Bruce ACT 2617 on the 26th of May 2023. The event will likely run from 8:30am until 4pm, with lunch included. Online attendance will also be available for our May Seminar, however, in-person participation is strongly encouraged.
You can register for tickets using this link.