Views
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
NIKI continued (now in Austria)
Written by Lukas Schmidt, Research Fellow at the Center for Transnational Commercial Dispute Resolution (TCDR) of the EBS Law School, Wiesbaden, Germany
The Regional Court Korneuburg has opened a main insolvency proceeding – not a secondary insolvency proceeding that the German provisional administrator has applied for – on the assets of NIKI Luftfahrt GmbH in Austria (see here). Therefore, it obviously shares the view of the Regional Court of Berlin that NIKI’s COMI is located in Austria and not Germany. Read more
US Court Refused to Apply the Chosen Chinese Law due to Public Policy Concern
In Fu v. Fu, 2017 IL App (1st) 162958-U, a father brought a claim against his son to revoke an unconditional gift of $590,000 that he donated to his son for the later to pursue an EB-5 Visa to immigrate to the US. Both parties are Chinese citizens and the defendant is currently a resident of Massachusetts. The gift agreement was entered into in China, drafted in Chinese and contained a clause specifying PRC law should apply. The money was held by the International Bank of Chicago. The plaintiff brought the action in Illinois.
Under the US Law (Title 8 of the Code of Federal Regulations, § 204.6) a foreign national must invest at least $500,000 in the US to be considered for an EB-5 Visa, and must ‘show that he has invested his own capital obtained through lawful means.’ (Matter of Ho, 22 I&N Dec. 206, 210 (AAO 1998)) After a few denied EB-5 approval, the plaintiff sought to recover the money, by claiming that the defendant was estranged from his parents, including the donor and refused to support them, and the purpose of the gift contract was for the defendant to obtain an EB-5 Visa but the defendant failed to do so.
Under the Illinois law, a valid gift requires ‘delivery of the property by the donor to the donee, with the intent to pass the title to the donee absolutely and irrevocably, and the donor must relinquish all present and future dominion and power over the subject matter of the gift.” (Pocius v. Fleck, 13 Ill. 2d 420, 427 (1958)). Furthermore, the gift agreement between the parties also used the language that the gift was ‘unconditional’. However, the plaintiff argued that under the PRC law, gifts may be revocable after the transfer of ownership, if the donee ‘has the obligation to support the donor but does not fulfil it’, or a donnee ‘does not fulfill the obligations as stipulated in the gift agreement.’ (PRC Contract Law, Art 192)
The Appellate Court of Illinois First Judicial District affirmed the judgment of the circuit court of Cook County that the gift agreement was irrevocable. The plaintiff failed to successfully prove Chinese law. And even if the plaintiff properly pled PRC law, such interpretation was ‘oppressive, immoral, and impolitic’. Under the US law on EB-5 Visa application, the foreign citizen must prove ownership of those funds to be eligible for an EB-5 Visa. The signed agreement stating the gift ‘unconditional’ would help the defendant to prove he legally owned the funds to acquire an EB-5 visa. If the governing PRC law indeed allows a gift to be given unconditionally and revoked after delivery and acceptance, as argued by the plaintiff, it would facilitate a deception on the US Government and is against public policy.
The full judgment can be found here.
News
Virtual Workshop (in English) on October 10: Diego Fernández Arroyo on “Transnational Commercial Arbitration as Private International Law Feature”
On Tuesday, October 10, 2023, the Hamburg Max Planck Institute will host its 37th monthly virtual workshop Current Research in Private International Law at 11:00-12:30 (CEST). Diego P. Fernández Arroyo (Sciences Po Law School) will speak, in English, about
Transnational Commercial Arbitration as Private International Law Feature
A significant part of private international law (PrIL) disputes is nowadays solved by means of arbitration. At the same time, the range of arbitrable issues has been growing up for decades. Consequently, arbitration is no longer ignored by PrIL scholars, who, nevertheless, hesitate about how to deal with it. Many of them are only attracted by the fact that arbitral tribunals are often confronted to ordinary problems of determining the law applicable to a particular issue. Through the lens of this classical-PrIL approach, they identify sometimes conflict-of-law rules in arbitration instruments. Without denying any interest to this option, we will try to provide a more comprehensive view, starting by revising the very respective notion of arbitration and PrIL as well as their interaction, and concluding to challenge the excessive role played by the seat of the arbitration.
The presentation will be followed by open discussion. 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.
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.