Views
Polish Constitutional Court about to review the constitutionality of the jurisdictional immunity of a foreign State?
Written by Zuzanna Nowicka, lawyer at the Helsinki Foundation for Human Rights and lecturer at Department of Logic and Legal Argumentation at University of Warsaw
In the aftermath of the judgment of the ICJ of 2012 in the case of the Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening) that needs no presentation here (for details see, in particular, the post by Burkhard Hess), by its judgment of 2014, the Italian Constitutional Court recognized the duty of Italy to comply with the ICJ judgment of 2012 but subjected that duty to the “fundamental principle of judicial protection of fundamental rights” under Italian constitutional law (for a more detailed account of those developments see this post on EAPIL by Pietro Franzina and further references detailed there). In a nutshell, according to the Italian Constitutional Court, the fundamental human rights cannot be automatically and unconditionally sacrificed in each and every case in order to uphold the jurisdiction immunity of a foreign State allegedly responsible for serious international crimes.
Since then, the Italian courts have reasserted their jurisdiction in such cases, in some even going so far as to decide on the substance and award compensation from Germany. The saga continues, as Germany took Italy to the ICJ again in 2022 (for the status of the case pending before the ICJ see here). It even seems not to end there as it can be provocatively argued that this saga has its spin-off currently taking place before the Polish courts.
The Greek Supreme Court has decided: Relatives of persons killed in accidents are immediate victims
A groundbreaking judgment was rendered last October by the Greek Supreme Court. Relatives of two Greek crew members killed in Los Llanos Air Base, Spain, initiated proceedings before Athens courts for pain and suffering damages (solatium). Although the action was dismissed by the Athens court of first instance, and the latter decision was confirmed by the Athens court of appeal, the cassation was successful: The Supreme Court held that both the Brussels I bis Regulation and the Lugano Convention are establishing international jurisdiction in the country where the relatives of persons killed are domiciled, because they must be considered as direct victims.
THE FACTS
On 26 January 2015, an F-16D Fighting Falcon jet fighter of the Hellenic Air Force crashed into the flight line at Los Llanos Air Base in Albacete, Spain, killing 11 people: the two crew members and nine on the ground.
The relatives of the Greek crew members filed actions for pain and suffering damages before the Athens court of first instance against a US (manufacturer of the aircraft) and a Swiss (subsidiary of the manufacturer) company. The action was dismissed in 2019 for lack of international jurisdiction. The appeals lodged by the relatives before had the same luck: the Athens court of appeal confirmed in 2020 the first instance ruling. The relatives filed a cassation, which led to the judgment nr. 1658/5.10.2022 of the Supreme Court.
Standard (and burden) of proof for jurisdiction agreements
Courts are often required to determine the existence or validity of jurisdiction agreements. This can raise the question of the applicable standard of proof. In common law jurisdictions, the question is not free from controversy. In particular, Stephen Pitel has argued on this very blog that jurisdiction clauses should be assessed on the balance of probabilities, as opposed to the “good arguable case” standard that is commonly applied (see, in more detail, Stephen Pitel and Jonathan de Vries “The Standard of Proof for Jurisdiction Clauses” (2008) 46 Canadian Business Law Journal 66). That is because the court’s determination on this question will ordinarily be final – it will not be revisited at trial.
News
Formation of the Australasian Association of Private International Law
At a meeting on 11 July 2024, 22 lawyers and academics voted to form the Australasian Association of Private International Law (AAPrIL). Professor Mary Keyes (Griffith University) was elected the inaugural President and the Honourable Dr Andrew Bell, Chief Justice of New South Wales, has agreed to be AAPrIL’s patron.
The AAPrIL’s first elected officers are as follows:
- President: Professor Mary Keyes (Griffith University, Queensland)
- Secretary: Professor Reid Mortensen (University of Southern Queensland)
- Treasurer: Ms Cara North (Corrs Chambers Westgarth, Melbourne)
- Australian Vice-President: Dr Michael Douglas (Bennett, Perth)
- New Zealand Vice-President: Mr Jack Wass (Stout Street Chambers, Wellington)
AAPrIL has been established to promoted understanding, awareness and the reform of private international law in Australia, New Zealand and the Pacific Islands, and to provide a regional organisation for cooperation with similar private international law associations across the world. It plans to hold an annual conference, support regular seminars and roundtables, engage with governments in Australasia on private international law issues and reform, publish a regular newsletter on events and legal developments in the region, and encourage cooperation with the Hague Conference on Private International Law and other private international law inter-governmental organisations.
More details about AAPrIL can be found on its website. Any enquiries can be made to AAPrIL’s Secretary, Professor Reid Mortensen: reid.mortensen@unisq.edu.au.
AMEDIP: Extension of deadline for papers to 4 August 2024 – Annual seminar of October 2024 (in Spanish)
The deadline to submit papers for AMEDIP’s Annual Seminar has been extended to Sunday 4 August 2024. Authors whose papers have been accepted will be notified by Saturday 10 August 2024.
For more information, click here (our previous post). To view the requirements, click Convocatoria AMEDIP 2024.
Papers must be submitted to the following email address: seminario@amedip.org.
University of Geneva: Executive Training on Civil Aspects of International Child Protection (ICPT) – 2024-2025
The University of Geneva is organising the second edition of the Executive Training on Civil Aspects of International Child Protection (ICPT).
The University of Geneva’s ICPT, offered by the Children’s Rights Academy, is designed to:
- Explore innovative approaches to uphold the fundamental rights of children in transnational situations
- Learn best practices for supporting unaccompanied minors and displaced children seeking asylum
- Collaborate with experts from various fields to create holistic and effective child protection strategies
- Understand the dynamics of how different organisations and stakeholders can work together to protect children
Programme of the 2nd Round 2024 – 2025:
Module 1: Children’s Individual Rights in Transnational Parental Relationships
28 November 2024, 14:15 – 18:15
Module 2: International and Comparative Family Law
19 December 2024, 14:15 – 18:15
Module 3: Vulnerable Migration
27 February 2025, 14:15 – 18:15
Module 4: Practice of Child Protection Stakeholders: Inter-agency Co-operation in Context
10 April 2025, 14:15 – 18:15
This training programme is designed for a diverse audience, including child protection professionals, legislators and lawyers, researchers, students, international organisation staff members, and governmental authorities, among others.
For queries related to the content of the programme, please contact vito.bumbaca@unige.ch.
For more information, please visit the website. To register click here.
The e-mail address is cra-secretariat@unige.ch.