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Emmanuel Gaillard died on April 1
Shocking, completely unexpected news: Emmanuel Gaillard, the leading scholar and practitioner of international arbitration and a giant in the field, died on April 1, at age 69. Pierre Mayer calls this “an immense loss;” Jean-Dominique Merchet calls him a “star”. Le Monde du droit collected some further reactions from French colleagues. Some eulogies in English are here and here. The International Chamber of Commerce also published a brief statement, as did the International Academy of Comparative Law. Diego P. Fernández Arroyo and Alexandre Senegacnik have an extensive eulogy on the SciencesPo site that also includes links to further testimonies.
Only two months ago, Gaillard had left Sherman Sterling, whose international arbitration department he had founded in 1989 and led since then, and founded a spinoff with six other former Shearman Sterling colleagues, Gaillard Shelbaya Banifatemi. His new law firm, announcing the death, called him “a totem in the world of international arbitration and a source of inspiration for lawyers around the world.” The law firm asks to share memories for a memorial book to be shared with his family and close ones.
Gaillard was well known as a practitioner (his biggest case may have been Yukos, though he had countless others) as well as a scholar (his Hague lectures on the “Legal theory of arbitration”, republished as a book and translated into several languages,, were a crucial step towards a more theoretical understanding of the field.) Most recently, he had been instrumental for OHADA’s decision to let Sherman Sterling draft a new private international law code for the region. The firm’s own statement of that decision is, however, down. The project, if continued, will need to go on without him. RIP.
HCCH Vacancy: (Assistant) Legal Officer
The Permanent Bureau of the Hague Conference on Private International Law (HCCH) is seeking a(n) (Assistant) Legal Officer. The successful candidate will begin work in the field of international commercial and financial law and will gradually also be expected to carry out work in other areas, including family law.
Applications should be submitted by Sunday 2 May 2021 (00:00 CEST). For more information, please visit the Recruitment section of the HCCH website.
This post is published by the Permanent Bureau of the Hague Conference of Private International Law (HCCH).
The HCCH Child Abduction Convention and the grave risk exception: A petition for a writ of certiorari is pending before the US Supreme Court – Golan v. Saada
A petition for a writ of certiorari has been filed before the US Supreme Court in a case concerning the HCCH Child Abduction Convention and the grave risk exception (art. 13(1)(b)). The issue at stake is: Whether, upon finding that there is a grave risk that a return would expose a child to physical or psychological harm (or intolerable situation), a district court is required to consider ameliorative measures (in other words, undertakings) to facilitate the (safe) return of the child. For the exact wording of the petition, see below.
Please note that US courts often use the terms “ameliorative measures” and “undertakings” interchangeably (as stated in the petition).This petition has been docketed as Golan v. Saada, No. 20-1034. This petition and other documents relating to this case have been distributed for the Conference of today – 1 April 2021.
“QUESTION PRESENTED
The Hague Convention on the Civil Aspects of International Child Abduction requires return of a child to his or her country of habitual residence unless, inter alia, there is a grave risk that his or her return would expose the child to physical or psychological harm. The question presented is:
Whether, upon finding that return to the country of habitual residence places a child at grave risk, a district court is required to consider ameliorative measures that would facilitate the return of the child notwithstanding the grave risk finding.”
With regard to this issue, there is indeed a split in the US circuits (as well as state courts).
According to the petition “The First, Eighth, and Eleventh Circuits have indicated that, once a district court determines that there is a grave risk that the child will be exposed to harm, the court need not consider any ameliorative measures,” whereas “the Second, Third, and Ninth Circuits require a district court to consider a full range of ameliorative measures that would permit return of the child, even when the court finds that there is a grave risk that a child’s return would expose that child to physical or psychological harm.” This case originated in the Second Circuit.
The split in the US circuits has been acknowledged by practitioners, see for example, James D. Garbolino, Federal Judicial Center, The 1980 Hague Convention on the Civil Aspects of International Child Abduction: A Guide for Judges, Second Edition (2015), 137-147 (see in particular p. 143. – but a few different circuits are mentioned, which attest to the confusion of practitioners). Accordingly, in my personal opinion, there is definitely merit in raising this issue before the US Supreme Court.
We will keep you informed as to whether this petition is granted or refused.