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No handshake, no citizenship – but with a second wife, everything’s fine?
Two recent judgments of European courts have highlighted the difficulty in finding the right balance between the cultural assimilation of Muslim immigrants demanded by national laws on citizenship and the necessary degree of tolerance towards foreign laws and customs. In a widely reported decision of 11 April 2018, the French Council of State (Conseil d’Etat) ruled that a naturalisation of an Algerian-born woman could be revoked because she had refused to shake hands with a male public servant during the naturalisation ceremony. Read more
Child Abduction and Habitual Residence in the Supreme Court of Canada
The Supreme Court of Canada, in Office of the Children’s Lawyer v Balev (available here), has evolved the law in Canada on the meaning of a child’s habitual residence under Article 3 of the Hague Convention. The Convention deals with the return of children wrongfully removed from the jurisdiction of their habitual residence.
A majority of the court identifies [paras 4 and 39ff] three possible approaches to habitual residence: the parental intention approach, the child-centred approach, and the hybrid approach. The parental intention approach determines the habitual residence of a child by the intention of the parents with the right to determine where the child lives. This approach has been the dominant one in Canada. In contrast, the hybrid approach, instead of focusing primarily on either parental intention or the child’s acclimatization, looks to all relevant considerations arising from the facts of the case. A majority of the court, led by the (now retired) Chief Justice, holds that the law in Canada should be the hybrid approach [paras 5 and 48]. One of the main reasons for the change is that the hybrid approach is used in many other Hague Convention countries [paras 49-50].
The dissent (three of the nine judges) would maintain the parental intention approach [para 110]. One of its central concerns is the flexibility and ambiguity of the hybrid approach [para 111], which the judges worry will lead to less clarity and more litigation. Wrongful removal cases will become harder to resolve in a timely manner [paras 151-153].
The majority did not apply the law to the facts of the underlying case, it having become moot during the process of the litigation [para 6]. The court rendered its decision to provide guidance going forward. The dissent would have denied the appeal on the basis that the child’s habitual residence was in Germany (as the lower courts had held).
The court briefly addresses the exception to Article 3 in what is commonly known as “Article 13(2)” (since it is not numbered as such) – a child’s objection to return – setting out its understanding of how to apply it [paras 75-81 and 157-160].
The Supreme Court of Canada has recently adopted the practice of preparing summaries of its decisions (available here for this decision) to make them more accessible to the media and the public. These are called “Cases in Brief”.
The CJEU settles the issue of characterising the surviving spouse’s share of the estate in the context of the Succession Regulation
It has not been yet noted on this blog that the CJEU has recently settled a classic problem of characterisation that has plagued German courts and academics for decades (CJEU, 1 March 2018 – C-558/16, Mahnkopf, ECLI:EU:C:2018:138). The German statutory regime of matrimonial property is a community of accrued gains, i.e. that each spouse keeps its own property, but gains that have been made during the marriage are equalised when the marriage ends, i.e. by a divorce or by the death of one spouse. According to § 1371(1) of the German Civil Code (Bürgerliches Gesetzbuch – BGB), the equalisation of the accrued gains shall be effected by increasing the surviving spouse’s share of the estate on intestacy by one quarter of the estate if the property regime is ended by the death of a spouse; it is irrelevant in this regard whether the spouses have made accrued gains in the individual case. How is this claim to be characterized? Read more
News
HCCH Monthly Update: October 2023
Conventions & Instruments
On 6 October 2023, Rwanda deposited its instrument of accession to the HCCH 1961 Apostille Convention and applied to become a Member of the HCCH. Following a six-month voting period, and provided a majority of votes have been cast in its favour, Rwanda will be invited to become a Member by accepting the Statute of the HCCH. With the accession of Rwanda, the 1961 Apostille Convention now has 126 Contracting Parties. It will enter into force for Rwanda on 5 June 2024. More information is available here.
On 27 October 2023, Canada deposited its instrument of ratification of, and Kyrgyzstan its instrument of accession to, the HCCH 2007 Child Support Convention. With the ratification of Canada and the accession of Kyrgyzstan, 48 States and the European Union are bound by the 2007 Child Support Convention. It will enter into force for Canada on 1 February 2024 and for Kyrgyzstan on 1 November 2024. The application of the Convention in Canada will extend to the provinces of Manitoba and Ontario. More information is available here.
Foreign law in the Draft Code of French Private International Law: New volume in French
Gustavo Cerqueira and Hugues Fulchiron have recently edited a new volume (in French) on the appliation of foreign law in the draft code of French private international law (Le droit étranger dans le projet de code de droit international privé – Connaissance et applicationdroit). They have kindly provided us with the following English summary:
On the occasion of the public consultation on the draft code of French private international law launched by the Ministry of Justice on 8 June 2022, the Société de législation comparée organized a debate in Paris on 13 September of the same year on the provisions relating to the knowledge and application of foreign law – Articles 13 and 14 of the draft.
Between consolidation of case law, methodological clarification, new procedural perspectives and recourse to institutional cooperation, the choices made by the drafters of the proposed Code offered a great opportunity for collective reflection, bringing together the key players in the field. This reflection was all the timelier given that these provisions were not given particular attention either in the explanatory memorandum to the draft code or in the commentaries on the draft code by academic writers.
The purpose of this book is therefore to bring to public debate the most salient issues relating to this often-neglected chapter of conflict of laws, while at the same time putting forward singular proposals to ensure that the content of foreign law in France is established as accurate as possible.
In recent years, the Société de législation comparée has taken an interest in the issue of understanding and applying foreign law. Through this new initiative, the Société works to enhance French private international law, in line with the goals set out in Article 1 of its Articles of Association.
Certificat de coutume: New volume in French
Gustavo Cerqueira, Nicolas Nord, and Cyril Nourissat have recently edited a new volume on the “Certificat de coutume – Pratiques en droit des affaires internationales” (in French). The editors have kindly provided us with an English translation of the blurb available on the publisher’s website:
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