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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
Friendly Reminder: “Globalization through the re-codification of property law?”
As announced earlier on this blog, Professor Amnon Lehavi, Harry Radzyner Law School, Reichman University, Israel, will be speaking about ‘Globalization through the re-codification of property law?”:
The globalization of markets, technology, and interpersonal networks poses a growing challenge for national legal systems. Property law is traditionally considered a “domestic” field of law, not only because of its structural features (such as the in rem or numerus clausus principles), but also because it promotes cultural, economic, and social values. The decision if property law should be globalized also requires a choice among potential globalization strategies (how to do so). This lecture examines four globalization strategies: (1) soft law / private ordering; (2) conflict of laws; (3) approximation; and (4) supranationalism. It does so by comparing three types of assets: land, digital assets, and cultural property – which have all been dramatically affected by current processes of globalization, albeit in diverging ways. It is argued that different strategies of globalization, and corresponding forms of re-codification of national property laws, should be adopted for land, digital assets, and cultural property.
The event will take place on 17 May at 6.30pm at the Senate Hall of the University of Bonn; it can also be joined via Zoom. The flyer can be found here.
Seminar on the Service and Evidence Regulations recast – at Maastricht University on 19 June 2023 (in Dutch)
A seminar will be held on 19 June 2023 at Maastricht University in the Netherlands concerning the Service and Evidence Regulations recast (see here our previous post regarding these regulations).
This seminar is being organised within the framework of the DIGI-GUARD project, which is co-funded by the European Union under the JUST-2021-JCOO program and which stands for Digital communication and safeguarding the parties’ rights: challenges for European civil procedure.
To Stamp or Not to Stamp: Critiquing the Indian Supreme Court’s Judgement in N.N Global
Written by Akanksha Oak and Shubh Jaiswal, undergraduate law students at Jindal Global Law School, India.
A Constitution Bench of the Indian Supreme Court in N.N Global recently adjudicated the contentious issue of whether arbitration clauses in contracts that were not registered and stamped would be valid and enforceable. As two co-ordinate benches of the Supreme Court had passed conflicting opinions on this point of law, the matter was referred to a Constitution bench—who answered the question in the negative, by a 3:2 majority.