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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
Out Now: Choice of Law and Recognition in Asian Family Law
A book edited by Anselmo Reyes, Wilson Lui, and Kazuaki Nishioka on Choice of Law and Recognition in Asian Family Law has just been published in the Hart Studies in Private International Law -Asia.
The blurb read as follows:
This thematic volume in the series Studies in Private International Law – Asia outlines the general choice of law and recognition rules relating to family matters of 15 Asian jurisdictions: Mainland China, Hong Kong, Taiwan, Japan, South Korea, Singapore, Malaysia, Vietnam, Cambodia, Myanmar, the Philippines, Indonesia, Thailand, Sri Lanka and India. The book examines pressing questions and proposes ways in which their systems may be reformed. A concluding chapter considers the extent to which Asian cross-border family law systems can and should be harmonised.
The book provides a comprehensive analysis of cross-border family law challenges, including child surrogacy, child abduction, the recognition of same-sex unions, the recovery of maintenance, and the regulation of intercountry adoption. These are among the matters now testing Asian institutions of private international law and acting as forces for their modernisation.
With contributions by leading Asian private international law experts, the book proposes necessary reforms for each of the jurisdictions analysed as well as for Asia as a whole.
Out Now: Treatment of Foreign Law in Asia
A book edited by Kazuaki Nishioka on Treatment of Foreign Law in Asia has just been published in the Hart Studies in Private International Law -Asia.
The blurb read as follows:
How do Asian courts ascertain, interpret, and apply a foreign law as the law governing the merits of the case? What should judges do if parties do not raise or disagree on the content of foreign law? This thematic volume in the Studies in Private International Law – Asia series analyses the treatment of foreign law before judicial authorities, that is, how the courts of Asian states deal with the proof of foreign law in court litigation involving cross-border elements.
The individual chapters cover 15 Asian jurisdictions: Mainland China, Hong Kong, Taiwan, Japan, South Korea, Singapore, Malaysia, Vietnam, Cambodia, Myanmar, the Philippines, Indonesia, Thailand, Sri Lanka, and India.
The Introduction and Conclusion examine similarities and differences in the approaches taken by the 15 Asian states with a view to assessing the extent to which those approaches are consistent or different from each other. The book also puts forward suggestions for harmonising differing approaches, especially between Asian common law and civil law states.
The book is a one-stop reference guide on the treatment of foreign law in Asia and will be indispensable to judges, practitioners, and scholars not just in Asia, but worldwide.
Out Now: Internationales Privat- und Prozessrecht in Lateinamerika by Jürgen Samtleben
Jürgen Samtleben just published a collection of his work on the PIL of Latin America; he kindly shared the following announcement with us:
Jürgen Samtleben has authored numerous articles over the years on private international law and international civil procedure in Latin America. These contributions have now been updated and systematically organized into a single volume, thereby offering a unique overview of the conflict of laws in Latin American countries. The collection of articles in German, Spanish and English is supplemented by a comprehensive volume containing the relevant statutory materials in their original language as well as in German translation.
The indices of volume I (‘Rechtsordnungen’) and volume II (‘Gesetzestexte’) can be found here and here. More information is available here.