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Draft Withdrawal Agreement, Continued
It is not quite orthodox to follow on oneself’s post, but I decided to make it as a short answer to some emails I got since yesterday. I do not know why Article 63 has not been agreed upon, although if I had to bet I would say: too complicated a provision. There is much too much in there, in a much too synthetic form; per se this does not necessarily lead to a bad outcome , but here… it looks like, rather. Just an example: Article 63 refers sometimes to provisions, some other to Chapters, and some to complete Regulations. Does it mean that “provisions regarding jurisdiction” are just the grounds for jurisdiction, without the lis pendens rules (for instance), although they are in the same Chapter of Brussels I bis?
One may also wonder why a separate rule on the assessment of the legal force of agreements of jurisdiction or choice of court agreements concluded before the end of the transition period in civil and commercial matters (Regulation 1215/2912) and maintenance (Regulation 4/2009): does the reference to “provisions regarding jurisdiction” not cover them already? Indeed, it may just be a reminder for the sake of clarity; but taken literally it could lead to some weird conclusions, such as the Brussels I Regulation taken preference over the 2005 Hague Convention “in the United Kingdom, as well as in the Member States in situations involving the United Kingdom”, whatever these may be. Of course I do not believe this is correct.
At any rate, for me the most complicated issue lies with the Draft Withdrawal Agreement provisions regarding time. As I already explained yesterday, according to Article 168 “Parts Two and Three, with the exception of Articles 17a, 30(1), 40, and 92(1), as well as Title I of Part Six and Articles 162, 163 and 164, shall apply as from the end of the transition period”, fixed for December 31st, 2020 (Article 121). In the meantime, ex Article 122, Union Law applies, in its entirety (for no exception is made affecting Title VI of Part Three). What are the consequences? Following an email exchange with Prof. Heredia, Universidad Autónoma de Madrid, let’s imagine the case of independent territorial insolvency proceedings – Article 3.2 Regulation 2015/848: if opened before December 31st, 2020, they shall be subject to the Insolvency Regulation. If main proceedings are opened before that date as well, the territorial independent proceedings shall become secondary insolvency proceedings – Article 3.4 Insolvency Regulation. If the main proceedings happen to be opened on January 2nd, 2021, they shall not – Article 63.4 c) combined with Article 168 Draft Withdrawal Agreement (I am still discussing Articles 122 and 168 with Prof. Heredia).
Another not so easy task is to explain Article 63.1 in the light of Articles 122 and 168. The assessment of jurisdiction for a contractual claim filed before the end of the transition period will be made according to Union Law, if jurisdiction is contested or examined ex officio before December 31st, 2020; and according to the provisions regarding jurisdiction of Regulation 1215/2012 (or the applicable one, depending on the subject matter, see Article 63.1 b, c, d) Draft Withdrawal Agreement, if it -the assessment- happens later. Here my question would be, what situations does the author of the Draft have in mind? Does Article 63.1 set up a kind of perpetuatio iurisdictionis rule, so as to ensure that the same rules will apply when jurisdiction is contested at the first instance before the end of the transition period, and on appeal afterwards (or even only afterwards, where it is possible)? Or is it a rule to be applied at the stage of recognition and enforcement where the application therefor is presented after the end of the transition period (but wouldn’t this fall under the scope of Article 63.3)?
That is all for now – was not a short answer, after all, and certainly not the end of it.
(Addenda: as for the UK, on 13 July 2017, the Government introduced the Withdrawal Bill to the House of Commons. On 17 January 2018, the Bill was given a Third Reading and passed through the House of Commons. Full text of the Bill as introduced and further versions of the Bill as it is reprinted to incorporate amendments (proposals for change) made during its passage through Parliament are available here. The Bill aims at converting existing direct EU law, including EU regulations and directly effective decisions, as it applies in the UK at the date of exit, into domestic law.)
Draft Withdrawal Agreement 19 March 2018: Still a Way to Go
Today, the European Union and the United Kingdom have reached an agreement on the transition period for Brexit: from March 29 of next year, date of disconnection, until December 31, 2020. The news are of course available in the press, and the Draft Withdrawal Agreement of 19 March 2018 has already been published… coloured: In green, the text is agreed at negotiators’ level and will only be subject to technical legal revisions in the coming weeks. In yellow, the text is agreed on the policy objective but drafting changes or clarifications are still required. In white, the text corresponds to text proposed by the Union on which discussions are ongoing as no agreement has yet been found. For ongoing judicial cooperation in civil and commercial matters (Title VI of Part III, to be applied from December 31, 2020: see Art. 168), this actually means that subject to “technical legal revisions”, the following has been accepted:
- Art. 62: The EU and the UK are in accordance as to the application by the latter (no need to mention the MS for obvious reasons) of the Rome I and Rome II regulations to contracts concluded before the end of the transition period, and in respect of events giving rise to damage, and which occurred before the end of the transition period.
- Art. 64: There is also agreement as to the handling of ongoing cooperation procedures, whereby requests for service abroad, the taking of evidence and in the frame of the European Judicial Network are meant.
- Art. 65: There is agreement as well as to the way Council Directive 2003/8/EC (legal aid), Directive 2008/52/EC on certain aspects of mediation in civil and commercial matter, and Council Directive 2004/80/EC (relating to compensation to crime victims) will apply after the transition period.
Conversely, no agreement has been found regarding Art. 63, i.e., how to deal with jurisdiction, recognition and enforcement of judicial decisions, and related cooperation between central authorities (but whatever is agreed will also be valid in respect of the provisions of Regulation (EU) No 1215/2012 as applicable by virtue of the agreement between the European Community and the Kingdom of Denmark, see Art. 65.2, in green).
In the light of this it may be not really worth to start the analysis of the Title as a whole: Art. 63 happens to be the less clear provision. Some puzzling expressions such as “as well as in the Member States in situations involving the United Kingdom” are common to approved texts, but may change in the course of the technical legal revision. So, let’s wait and see.
NoA: Another relevant provision agreed upon – in green- is Art. 124, Specific arrangements relating to the Union’s external action. Title X of Part III, on pending cases and new cases before the CJEU, remains in white.
And: On the Draft of February 28, 2018 see P. Franzina’s entry here. The Draft was transmitted to the Council (Article 50) and the Brexit Steering Group of the European Parliament; the resulting text was sent to the UK and made public on March 15.
Religious Conversion and Custody – Important New Decision by the Malaysian Federal Court
A saga that has kept Malaysians engaged for years has finally founds its conclusion. A woman, named (rather improbably, at least for European observers) Indira Gandhi, was fighting with her ex husband over custody. The ex-husband had converted to Islam and had extended the conversion to their three children, with the consequence that the Syariah courts gave him sole custody. What followed was a whole series of court decisions by civil courts on the one hand and Syariah courts on the other, focusing mainly on the jurisdictional question which set of courts gets to decide matters of religious status and which law—Islamic law or civil law—determines the question. The Malaysian Federal Court now quashed the conversion as regards the children, thereby claiming, at least for children, a priority of the Constitution and the jurisdiction of civil courts.
Although the case is mostly discussed in the context of religious freedom and (civil) judicial review, it also raises core issues of conflict of laws. Malaysia is a country with an interpersonal legal system, which leaves jurisdiction over certain matters of Islamic law to the Syariah courts. Indira Gandhi’s ex-husband here used this system, effectively, for a form of forum shopping: converting to Islam enabled him, ostentatiously, to opt into a system more favorable to his own situation. The background, from the perspective of conflict of laws, is that the decisive connecting factor, namely a person’s religion, is open to manipulation in a way in which other connecting factors are not. According to Article 121 of the Federal Constitution, the civil courts have no jurisdiction over matters of the Syariah Courts. On the other hand, Art. 12(4) of the Constitution provides that a minor’s religion is determined by his parent or guardian, a provision the Syariah Courts neglected here. Letting the Constitution trump leads to a desirable result in this case, but it does not, by itself, resolve the underlying conflict-of-laws issues. Here, as in comparable situations, the doctrinal problem appears to lie first in the issue of unilateral determination of personal status and second in a conflation of issues of jurisdiction and applicable law.
The case is Indira Gandhi v. Pengarah Jabatan Agama Islam Perak u.a., [2018] 1 LNS 86 (Federal Court of Malaysia); it is available here. A short summary is here, another one, including a useful timeline of events, is here. For a very helpful analysis of the case and its background and implications by Jaclyn L. Neo, focusing especially on questions of jurisdiction and judicial review, see here. A longer discussion by Dian A.H. Shah focuses also on two other cases and more broadly on the issues of religious freedom: Dian A.H. Shah, Religion, conversions, and custody: battles in the Malaysian appellate courts, in Law and Society in Malaysia: Pluralism, Religion and Ethnicity (Andrew Harding/Dian A.H. Shah eds., 2018). The affair is also discussed in Yvonne Tew‘s article ‘Stealth Theocracy,’ which is forthcoming with the Virginia Journal of International Law.
News
DEADLINE EXTENDED-Call for submissions: 2023 Nygh and Brennan Essay Prizes – ILA Australian Branch
Written by Phoebe Winch, Secretary of International Law Association (ILA) Australian Branch.
The Australian Branch is now calling for submissions for the 2023 Brennan Essay Prize in Public International Law and the Nygh Essay Prize in Private International Law.
The prizes are awarded for essays that demonstrate outstanding scholarship and make a distinct contribution to the field of public international law and private international law (conflict of laws), respectively. Essays for the prize to be awarded in 2023 should be sent to the email address of the Secretary of the Australian Branch at secretary@ila.org.au.
Further details (including conditions of entry) are available here. The extended deadline for submission is: 5 August 2023.
The results will be made available on the website of the ILA (www.ila.org.au) on approximately 31 August 2023. Winners will be notified by email.
Upcoming Event: International Symposium (hybrid format) on International Arbitration and Mediation in Japan
The Ministry of Justice of Japan (MOJ), Civil Affairs Bureau, in cooperation with the Japan Commercial Arbitration Association (JCAA) and supported by CIArb East Asia Branch, Japan Association of Arbitration (JAA), Japan International Dispute Resolution Center (JIDRC), is organizing an international symposium (hybrid format) on the “Future Prospects of International Arbitration and Mediation: How does the Judiciary Assist?”.
This event could not have been more timely as the House of Councillors (the upper house of the Japanese Diet) unanimously passed and enacted into law on 21 April of this year the amendments to the Arbitration Act and the “Act for the Implementation of Settlement Agreements Resulting from Mediation” (the “Singapore Mediation Convention Implementation Act”). These enactments aim to promote international arbitration and mediation in Japan and to make Japan an attractive hub for international dispute resolution in competition with other leading centers in the region.
Date, Venue & Formats:
July 7 (Fri.), 2023, 9am-12:30 pm (JST)
Hotel New Otani Tokyo?ONSITE / Online?
Language: English
English-Japanese consecutive interpretation available
Program (see link below):
Keynote Speeches
Panel Sessions
Registration: free
Sign up on the Official Website of the Forums
by 6pm, JUNE 26 (Mon.) for ONSITE participation,
by noon, JULY 3 (Mon.) for Online participation
Details of registration and the program can be found here.
Out Now: Torts in UK Foreign Relations by Dr Ugljesa Grusic
Oxford University Press officially released the recent book authored by Dr Ugljesa Grusic (Associate Professor at UCL Laws) titled Torts in UK Foreign Relations.
The book offers a comprehensive account of private international law aspects of tortious claims arising out of the external exercise of British executive authority.
Can English courts hear tortious claims for wrongs allegedly committed by British armed forces and security services during their overseas operations? Should English courts hear such claims? What law governs issues raised by such claims? Can foreign judgments given on such claims be recognised and enforced in the UK?
Many questions such as these have arisen in relation to cases dealing with the tortious liability of the UK government and its officials for extraterritorial public acts committed during the conflicts in Kosovo, Afghanistan, and Iraq, and the ‘war on terror’. Torts in UK Foreign Relations examines the English courts’ treatment of such issues and offers a better understanding of this contested area of private international law. It shows that a defining characteristic of such tortious claims is that they are often subjected to the choice-of-law process and lead to the application of foreign law. Further, Dr Grusic clarifies the nature of the doctrines operating in this field, maps out the relationship between different jurisdictions and rules that are engaged, and criticises the current approach to choice-of-law, while arguing that English tort law should play a more prominent role.
Torts in UK Foreign Relations will appeal widely to academics, practitioners, and students in the fields of private international law, foreign relations law, tort law, and public law.
Torts in UK Foreign Relations:
- Offers the first comprehensive account of private international law aspects of tortious claims arising out of the external exercise of British executive authority
- Segregates issues raised by such tortious claims and clarifies the principles, rules and practice that determine the law governing these issues
- Maps out the relationship between different jurisdictions and rules that are engaged
- Discusses important developments and case law affecting the field, including the Supreme Court judgments in Rahmatullah, Belhaj, Maduro and Brownlie
Torts in UK Foreign Relations is available to order on the OUP website.