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From the editors’ desk: Relaunch of conflictoflaws.net!
Dear readers,
Conflictoflaws.net has been around for 12 years by now. It has developed into one of the most relevant platforms for the exchange of information and the discussion of topics relating to conflict of laws in a broad sense. And while the world has changed a lot during the past 12 years the look of conflictoflaws.net has basically remained the same. Today this is going to change: Read more
Islamic Marriage and English Divorce – a new Decision from the English High Court
In England, almost all married Muslim women have had a nikah, a religious celebration. By contrast, more than half of them have not also gone through a separate civil ceremony, as required under UK law. The often unwelcome consequence is that, under UK law, they are not validly married and therefore insufficiently protected under UK law: they cannot claim maintenance, and they cannot get a divorce as long as the marriage is viewed, in the eyes of the law, as a nullity.
The government has tried for some time to remedy this, under suspicious gazes from conservative Muslims on the one hand, secularists on the other. A 2014 report (the ‘Aurat report’), which demonstrated, by example of 50 cases, the hardships that could follow from the fact that nikahs are not recognized, found attention in the government party. An independent review into the application of sharia law in England and law, instigated by Theresa May (then the Home Secretary) in 2016 and published earlier this year, recommended to ensure that all Islamic marriages would also be registered; it also recommended campaigns for increased awareness.
Such steps do not help where the wedding already took place and has not been registered. A new decision by the High Court brings partial relief. Nasreen Akhter (who is a solicitor and thus certainly not an uneducated woman ignorant of the law) asked to be divorced from her husband of twenty years, Mohammed Shabaz Khan. Khan’s defense was that the marriage, which had been celebrated as a nikah in west London, existed only under Islamic, not under UK law, and therefore divorce under UK law was not possible. Indeed, up until now, the nikah had been considered a non-marriage which the law could ignore, because it did not even purport to comply with the requirements of English law. The High Court was unwilling to presume the lived marriage as valid. However, drawing at length on Human Rights Law, it declared the marriage void under sec 11 of the Matrimonial Causes Act 1973 and granted the wife a decree of nullity. This has important consequences: Unlike a non-marriage, a void marriage allows a petitioner to obtain financial remedies.
The decision represents a huge step towards the protection of women whose Islamic marriages are not registered. It makes it harder for men to escape their obligations under civil law. At the same time, the decision is not unproblematic: it refuses recognition of an Islamic marriage as such, while at the same time, under certain conditions, treating it like a recognized marriage. In all likelihood, only registration will create the needed certainty.
The decision is here.
Much-awaited US Supreme Court decision has been rendered: Animal Science Products, Inc. v. Hebei Welcome Pharmaceutical Co. Ltd.
The decision is available here and further documentation is available here. I would also like to refer to previous posts by fellow editors here and here. The US Supreme Court held that: “A federal court determining foreign law under Federal Rule of Civil Procedure 44.1 should accord respectful consideration to a foreign government’s submission, but the court is not bound to accord conclusive effect to the foreign government’s statements.”
In a nutshell, the US Supreme Court said that the weight to be given to foreign government statements depends on the circumstances of the case. In particular, it notes that “[t]he appropriate weight [a federal court determining foreign law should give to the views presented by a foreign government] in each case, however, will depend upon the circumstances; a federal court is neither bound to adopt the foreign government’s characterization nor required to ignore other relevant materials. No single formula or rule will fit all cases, but relevant considerations include the statement’s clarity, thoroughness, and support; its context and purpose; the transparency of the foreign legal system; the role and authority of the entity or official offering the statement; and the statement’s consistency with the foreign government’s past positions.”
One thing of note is that the US Supreme Court refers to Société Nationale Industrielle Aérospatiale v. United States Dist. Court for Southern Dist. of Iowa, 482 U. S. 522, which is a very important case in the context of the Hague Evidence Convention.
News
AMEDIP’s upcoming webinar: The Applicable Law to Investment Arbitration and the Future Guide of the Organization of American States – 31 August 2023 (at 14:30 Mexico City time) (in Spanish)
The Mexican Academy of Private International and Comparative Law (AMEDIP) is holding a webinar on Thursday 31 August 2023 at 14:30 (Mexico City time – CST), 22:30 (CEST time). The topic of the webinar is the Applicable Law to Investment Arbitration and the Future Guide of the Organization of American States (OAS) and will be presented by Dr. José Antonio Moreno Rodríguez (in Spanish).
The details of the webinar are:
Inter-American Juridical Committee (CJI) of the OAS adopts Guide to Best Practices in International Jurisdictional Cooperation for the Americas
Earlier this month, the Inter-American Juridical Committee of the Organization of American States (OAS) adopted a Guide to Best Practices in International Jurisdictional Cooperation for the Americas. It is available here (in English) and here (in Spanish).
See in particular questions 5 and 7, which relate to electronic service and videoconferencing (pp. 18 and 26). The actual Guide begins on page 38.
Out Now: The Common Law Jurisprudence of the Conflict of Laws
Few books can get you from the rainy coast of Newfoundland over 19th-century Holstein straight to sunny Queensland and back to the North of Pennsylvania, while telling stories of a retired MI5 agent, the largest Ponzi scheme in history, a company founded by the 41st President of the United States, the aftermath of the First Gulf War, and the collapse of the Federal Bank of Australia. The volume on The Common Law Jurisprudence of the Conflict of Laws, edited by Sarah McKibbin (University of Southern Queensland) and Anthony Kennedy (Serle Court), recently published by Hart, does just that, by discussing cases like Vita Food Products, Brook v Brook, Bonython v Commonwealth of Australia, AG v Heinemann Publishers (better known as the Australian Spycatcher case), Bremen v Zapata, Vizcaya v Picard, and Kuwait Airways (Nos 4 and 5).
