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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
Lex & Forum, Volume 4/2022 – A special on cross border family law
Family disputes constitute the majority of cases of cross-border nature. The free movement of people within the European judicial space and the integration of third-country nationals has created a considerable number of multinational family structures, that give rise to a significant number of legal disputes, leading to complex conflict of law issues. It is no coincidence that in the area of family disputes one could identify the most extended number of EU legislative initiatives, from Regulation 1347/2000 (Brussels II Regulation) on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility for children of both spouses, followed by the “successors”, i.e., Regulation No 2201/2003 (Brussels IIa Regulation) and Regulation 2019/1111 (Brussels IIb Regulation), Regulation 4/2009 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations, Regulation 1259/2010 (Rome III Regulation) on the applicable law to divorce and legal separation, as well as and Regulations 2016/1103 and 2016/1104 on international jurisdiction, applicable law, recognition and enforcement of decisions in matters of matrimonial property regimes and, registered partners, respectively, covering the maximum scope of personal or property family disputes. It is also notable that, as concluded after examining the data kindly brought to our attention by the Thessaloniki Court of First Instance Department of Publications, out of one hundred court judgments related to international law issued in the year 2022 by the above mentioned Court, approximately 70% of them concerned family disputes in a broader sense, either within the EU, or related to third countries, demonstrating the importance of the matter in practice.
Cross-border family disputes are the Focus of the current issue and were examined in an online conference of Lex and Forum (8.12.2022), under the Presidency of the Supreme Court Judge, Ms. Evdoxia Kiouptsidou-Stratoudaki. The topics of the conference concern the international jurisdiction on matrimonial and child custody disputes according to Regulation No 2019/1111, by Ioannis Delikostopoulos, Professor at the Faculty of Law of the University of Athens; the practical problems of the application of the Regulations for family disputes and parental custody disputes, by Ms. Aikaterini Karaindrou, Judge at the First Instance Court; the agreements on the exercise of parental care according to Regulation No 2019/1111 and their relationship with Greek law, by Aikaterini Fundedaki, Professor at the Law Faculty of the University of Thessaloniki; Law No 4800/2021 and the harmonization of the Greek legal provisions with international law, by Ioannis Valmantonis, Judge at the Court of Appeal, and the new Hague Convention for the protection of adults, by Dr. Vasileios Sarigiannidis, Head of the Private International Law Department at the Hellenic Ministry of Justice.
The present issue also contains case comments on the CJEU judgment, 15.11.2022, Senatsverwaltung/TB, on the recognition of dissolution of marriage from another member state, by Dr. Apostolos Anthimos; the CJEU judgments, 15.11 .2021, ??/FA and 10.2.2022, OE/VY, on the concept of habitual residence and, respectively, the importance of the length of residence of the claimant in a member state for the establishment of international jurisdiction under the Brussels IIa/b Regulation, by Paris Arvanitakis, Professor at the University of Thessaloniki, and . Stefania Kapaktsi, Judge at the Court of First Instance; the Greek Supreme Court judgment No 30/2021 on the declaration of enforceability of a foreign decision on the distribution of the spouses’ common property, by Dr. Apostolos Anthimos; the Greek Supreme Court cases No 48/2021 and 54/2021 on international child abduction, by Ioannis Valmantonis, Judge at the Court of Appeal; the judgment of the Thessaloniki First Instance Court No 1285/2022, on the temporary regulation of contact rights according to the Brussels IIb Regulation and the 1996 HAGUE Convention, by Professor Delikostopoulos, and the German Supreme Court judgment dated from 29.9. 2021, on the non-opposition to public order of a marriage performed by a proxy, with a note by Dr. Anthimos. The jurisprudence section also contains the CJEU decisions, 22.4.2022, Volvo/RM, regarding the temporal scope of the Directive No 2014/104 and their incorporation into substantive or procedural EU law, accompanied by the Opinion of the Advocate General, Mr. Athanassios Rantos, with a case comment by Dr. Stefanos Karameros, PhD, and the Court of First Instance case No 13535/2019, on the possibility of implicit prorogation of jurisdiction in case of provisional measures in the Brussels Ia Regulation, despite a contrary agreement, with a case comment by Ioanna Pissina, PhD Candidate.
The issue is completed with the Praefatio by Vassilios Christianos, Emeritus Professor at University of Athens, and former Director of the Center of International and European Economic Law, regarding the contribution of the comparative method to EU procedural law; the expert opinion by Dimitrios Tsikrikas, Professor at the Athens Faculty of Law, on the scope of application of choice-of-court agreements in bond loans and interest rate contracts; and finally, the analysis of practical issues on the recognition of foreign divorce decrees, focusing on the difficulties of the applicants to prove the finality of the foreign decision (L&F Praxis), by Dr. Anthimos.
[editorial prepared by Professor Paris Arvanitakis, scientific director of Lex & Forum]
Virtual Workshop on March 7: Dário Moura Vicente on Investment Arbitration
On Tuesday, March 7, 2023, the Hamburg Max Planck Institute will host its 31st monthly virtual workshop Current Research in Private International Law at 11:00 a.m. – 12:30 p.m. (CET). Dário Moura Vicente (University of Lisbon) will speak, in English, about the topic
Investment Arbitration – Lost in the Bermuda Triangle of EU Law, Public International Law and Private International Law?
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.
MPI workshop on investment arbitration by Prof. Moura Vicente
MPI is sending an invitation to its virtual workshop on the topic of “Investment Arbitration – Lost in the Bermuda Triangle of EU Law, Public International Law and Private International Law?”, which will be presented by Professor Dário Moura Vicente, University of Lisbon.
As a part of the series “Current Research in Private International Law”, the workshop will take place online via Zoom, on Tuesday, 7 March 2023 at 11:00 a.m. (CET). Registration for the workshop is possible at this LINK.
More information is available here.