Views
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.
Conflicts – Between Domestic and Indigenous Legal Systems?
In Beaver v Hill, 2017 ONSC 7245 (available here) the applicant sought custody, spousal support and child support. All relevant facts happened in Ontario. Read more
News
Second Issue of ICLQ for 2023
Further to my post on first view articles for the second issue of ICLQ 2023, the second issue for ICLQ for 2023 was just published. It contains the following conflict of laws article that was not included in the first view articles:
S Camilleri, “Sense and Separability”:
This article explores the doctrine of separability, as understood in particular in the English legal tradition. It does so by reference to the decisions in Sulamérica Cia Nacional de Seguros SA and others v Enesa Engelharia SA and others and ENKA ?n?aat ve Sanayi A.?. v OOO ‘Insurance Company Chubb’ & Ors that explore the relevance of the concept when determining the law applicable to the arbitration agreement. These decisions largely treat the doctrine as irrelevant to the determination of the law governing the arbitration agreement. They do so because of the way in which English law views separability as tied inimically to the concept of enforcement of the arbitration agreement. This is unsurprising given the content of section 7 of the Arbitration Act 1996 and the position of the doctrine of separability as a legal fiction that must be restricted to its defined purpose. Viewed against the potential reform of the Arbitration Act 1996, the author asks whether a broader view of separability can be adopted. The author’s view is that there are cogent and compelling reasons for adopting a broader view, that would promote certainty and consistency in a way that is not best served by the current approach.
Conference & call for papers Sustaining Access to Justice
Save the date
On 19-20 October 2023 a conference on ‘Sustaining Access to Justice: Developments and Views on Costs and Funding’ will be held at Erasmus University Rotterdam. The conference is organised by the project team Affordable Access to Justice, financed by the Dutch Research Council. Confirmed keynote speakers include Rachael Mulheron (Queen Mary University London) and Andreas Stein (European Commission, DG Justice and Consumers, head of unit). More information on the program and registration will follow soon.
Call for papers
For this conference we invite submissions of abstracts from early career researchers and young practitioners.
The conference’s theme: Access to civil justice is of paramount importance for enforcing citizens’ rights. At the heart access to civil justice lies litigation funding and cost management. Yet, over the past decades, access to justice has been increasingly put under pressure due to retrenching governments, high costs of procedure, and inefficiency of courts and justice systems. Within this context, the funding of litigation in Europe seems to be shifting from public to private. Private actors and innovative business models emerged to provide new solutions to the old problem of financial barriers of access to justice. With the participation of policymakers, practitioners, academics and civil society representatives from all over Europe, the conference seeks to delve deeper into the financial implications of access to justice and the different ways to achieve sustainable civil justice systems in Europe. The topics addressed will include the different methods of financing dispute adjudication, particularly in the context of group litigation (third-party funding, crowdfunding, blockchain technologies), public interest litigation, developments in ADR/ODR, and the new business models of legal professionals.
Call for Papers: During the second day of the Conference (20 October) a panel will be organised which is intended to function as a forum for young scholars and young practitioners to present their work in front of a distinguished and broad audience. We particularly invite Early Career Researchers, PhD candidates (at an advanced stage of their PhD), and young practitioners to participate and present their research on the conference’s topics and beyond. While the contributions should fall within the Conference broader topic (costs and funding of civil justice), authors are free to include matters they deem interesting to explore within this context. Proposals can be theoretical, empirical as well as policy oriented. Interdisciplinary approaches and/or a Law & Economics approach are especially encouraged.
Submissions and deadline: Please submit an extended abstract (max 1000 words) in English to dori@law.eur.nl and cordina@law.eur.nl on 7 July 2023 at the latest. Please include your name, affiliation, and a link to your research profile. Submissions will be selected based on quality, originality, interdisciplinarity and the capacity to incite fruitful debates. Accepted submissions will be notified on 30 July 2023 at the latest. The selected participants will be asked to submit their final manuscript in early 2024.
The organisers aim to include the best papers in the conference proceedings, to be published as an edited volume with a reputable publisher. Further details in this regard will be communicated in due time.
Funding for travel and accommodation is available for the selected authors.
The conference venue will be @ Erasmus University Rotterdam – Woudestein Campus. The conference is organised by Erasmus School of Law in the context of the VICI Project ‘Affordable Access to Justice’. More information at: http://www.euciviljustice.eu/.
Online Panel on May 8: Fundamental Rights and PIL after the decision of the German Constitutional Court on the Act to Combat Child Marriages (in German)
On Monday, May 8, 2023, the Hamburg Max Planck Institute will host its 33th monthly virtual workshop Current Research in Private International Law at 3:00 p.m. – 5:00 p.m. (CEST). Deviating from the usual format there will be an online panel on
Fundamental Rights and PIL after the decision of the German Constitutional Court on the Act to Combat Child Marriages*
The panelist are Henning Radtke (Judge at the Constitutional Court), Dagmar Coester-Waltjen (Professor emeritus for PIL at University of Göttingen), Susanne Gössl (Professor for PIL at University of Bonn) and Lars Viellechner (Professor for Constitutional Law at University of Bremen). The discussion discussion will be in German.
After opening statements from the panelists, the discussion will be opened to the audience. 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.
* Information on the decision here.