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Recent conflicts developments in New Zealand
With the end of the year fast approaching, here is a quick round-up of news from New Zealand:
- The New Zealand Parliament recently passed the Private International Law (Choice of Law in Tort) Act 2017. The Act introduces new torts choice of law rules and abolishes the common law rule of double actionability. The Act is closely modelled on the Private International Law (Miscellaneous Provisions) Act 1995 (UK), with some notable exceptions. A copy of the Act is available here (and see here for its legislative history).
- In Brown v New Zealand Basing Ltd [2017] NZSC 139, the Supreme Court determined whether age discrimination provisions in New Zealand employment legislation applied to Cathay Pacific pilots based in Auckland. The employment contract, expressed to be governed by the law of Hong Kong, provided for a mandatory retirement age of 55. Pursuant to the Employment Relations Ac 2000 (NZ), however, the pilots could not be required to retire until they had reached the age of 65. The pilots brought a personal grievance claim against their employer, a Hong Kong based subsidiary of Cathay Pacific, in reliance on the Act. As many readers will be aware, this is not the first time that the cross-border effect of the airline’s retirement age provisions has been the subject of litigation. In Lawson v Serco Ltd (Crofts) [2006] UKHL 3, [2006] 1 All ER 823, the House of Lords held that the right not to be unfairly dismissed under the Employment Rights Act 1996 (UK) applied to UK-based pilots of Cathay Pacific. But unlike the UK Act, the New Zealand Act does not contain an equivalent to s 204(1), which provides that it is immaterial for the purposes of the Act “whether the law which (apart from this Act) governs any person’s employment is the law of the United Kingdom … or not”. The Court held unanimously that the Act applied to the plaintiffs’ claim. A copy of the judgment is available here.
- The New Zealand Law Commission has called for submissions on its Issues Paper Dividing Relationship Property – Time for Change? (IP41, 16 October 2017). Part L of the paper deals with cross-border matters affecting relationship property. The paper forms part of the Commission’s review of the Property (Relationships) Act 1976.
The 11th “Luxemburger Expertenforum” on the development of EU law
On 3 and 4 December 2017, the 11th “Luxemburger Expertenforum” on the development of EU law took place at the Court of Justice of the European Union. This forum is a workshop that is organised regularly by the German members of the Court of Justice (including the members of the European Court [formerly of First Instance] and the Advocates General); it is presided by the President of the CJEU, Koen Lenaerts, and attended by non-German members of the Court as well (although the discussions at the meeting are held in German).
This year’s forum was divided into four parts. It started on Sunday evening with a dinner speech by the protestant Bishop of Berlin-Brandenburg, Markus Dröge, who looked back at the 500 year anniversary of the reformation and reflected upon the relationship between the church(es) and the state(s) under domestic and European laws. The latter topic was also the general subject of Monday’s first morning session, which was titled “Constitutional challenges at the workplace”. In this session, which was chaired by Advocate General Juliane Kokott, the tensions between an employee’s right to exercise his or her religious freedom and the employer’s desire for a neutral and harmonious working environment were discussed. Moreover, the speakers looked at the implications of a case pending before the CJEU for the impact of the Anti-Discimination Directives on employees working in hospitals or schools run by churches (C-68/17). The topics were approached from a constitutional perspective by Monika Hermanns, judge at the German Constitutional Court, and Rüdiger Stotz, General Director at the CJEU and a member of the working group on EU law set up by the Conference of European Churches. Inken Gallner, judge at the Federal Labour Court, and Felix Hartmann, professor of labour law at the Free University of Berlin, added both practical and academic views from the perspective of labour law. Matthias Bartke, a social-democratic member of the German parliament, commented both on matters of politics and policy.
The second session was chaired by chamber president Thomas von Danwitz and devoted to a subject dear to readers of our blog: “Mutual trust and mutual recognition – are the structural principles of EU law still valid?”. This question was approached from various angles: Dirk Behrendt, senator of justice of Berlin and a member of the German Green party, gave an overview over Berlin court practice concerning the recognition and enforcement of foreign judgments. Tim Eicke, a British judge at the European Court of Human Rights in Strasbourg, looked at the implications of the European Convention on Human Rights for mutual recognition between the EU member states. Harald Dörig. judge at the Federal Administrative Law Court, analysed the principle of mutual trust (or rather the lack thereof) in the field of migration and asylum law. Yvonne Ott, judge at the German Constitutional Court, and Alexandra Jour-Schröder, director for criminal justice at the European Commission, discussed tensions between European law on arrest warrants and domestic constitutional guarantees. After the short speeches, Jan von Hein, professor at the University of Freiburg, opened the discussion with a survey on the current state of play with regard to European civil procedure.
During lunch, Luxembourg’s Minister of Foreign Affairs, Jean Asselborn, gave a speech on current challenges facing the EU and its member states, in particular with regard to migration politics (you may read the text of his speech here).
The third and final session was chaired by Alfred Dittrich, judge at the European Court, and dealt with the issue of whether and under which conditions national tax exemptions may qualify as prohibited subsidies under the TFEU. The speakers of this panel were Rudolf Mellinghoff, the president of the Federal Tax Court, Johannes Laitenberger, the General Director of the DG Competition, Kirsten Scholl from the German Ministry of Economics, Johanna Hey, professor at the University of Cologne, and Ulrich Soltész, lawyer at Gleiss Lutz in Brussels. Different views on the relationship between EU law on subsidies and domestic laws on taxation gave rise to an open and fruitful discussion.
2 New Books: Choice of Law for Mortgages // Divorce in Private International Law
For those able to read Portuguese, two new books have been recently released, as a result of theses defended earlier this year at the Universities of Coimbra and Lisbon. English abstracts provided by the Authors read as follows (more info, respectively, here and here):
AFONSO PATRÃO, Freedom of Choice in Mortgage and a Reinforcement of International Cooperation
Abstract: This dissertation concerns the implementation of a European mortgage market, identifying obstacles to its accomplishment and offering solutions to overcome them.
Considering statistical data that indicate national compartmentalisation of mortgage markets (as land security rights are essential for internal credit but, internationally, less than 1% of all international credit involves mortgages), we start by justifying the inclusion of international mortgages within the scope of European Treaties, demonstrating that the European Union objectives include the free movement of land security rights.
Next, we identify obstacles to the acceptance, by lenders, of land security rights on immovable property in other Member States. These barriers, potentially contrary to European law, must be correctly understood in order to arrive at accurate solutions. As such, in Part I, we deal with the mandatory submission of land property rights and land registry to lex situs, analysing its purpose; we demonstrate substantial differences in European mortgage and land registry laws; we scrutinise the execution of a mortgage on a plot situated in another Member State; and we highlight the complexity of setting up a mortgage in a foreign country.
In Part II, we assess the proposals which have so far been offered as solutions. In particular, we discuss the feasibility of unifying or harmonising mortgage laws; the introduction of Eurohypothec as an additional optional legal regime; the securitisation of granted mortgage loans; and the establishment of the country of origin principle. The analysis concludes that standing proposals do not adequately solve the issue at hand.
Solutions are offered in Part III of the dissertation. The first suggestion is to recognise party autonomy in mortgages (conferring the right to choose the applicable law to land security rights), in harmony with the movement of dépeçage of private international law on property rights and with the purpose of European integration. We demonstrate that, provided that adequate precautions are taken, there is no reason for the obligatory application of lex situs.
In addition, we advocate strengthening of international cooperation in the field of mortgage constitution — especially between notaries of the country where the contract is concluded and registrars of the Member State where the plot is located.
These recommendations are designed to be introduced in a European Regulation, considering that they would be a factor in dismissing barriers on the free movement of capital.
JOÃO GOMES DE ALMEIDA, Divorce in Private International Law
Abstract: The cross-border movement of people is an increasingly widespread reality, due mainly to technological progress. Within the European Union this phenomenon is also enhanced by the freedom of movement of persons, goods, services and capital. Nowadays, it is no longer unusual to find couples of different nationalities, couples with one or more common nationalities that habitually reside in a State that is not one of the States of their nationalities and even couples, with or without a common nationality, that do not habitually reside in the same State. And it appears that this trend will only grow stronger in the future. In brief, transnational family relationships – family relationships that are connected to more than one sovereign State – are increasingly common.
Of the various kinds of transnational family relationships, the present dissertation focuses on the transnational divorce. Divorce is the dissolution of marriage. As such, it is a significant event in the lives of the spouses, as it extinguishes the marital bond, terminating the family relationship that arose from marriage. Transnational divorce raises specific questions: in which sovereign State must the applicant initiate the divorce proceedings? Which law applies to a transnational divorce? Is it possible for a foreign judgment on transnational divorce to be recognised and produce its effects in the same way as a domestic judgment? These specific questions are answered, respectively, by the rules on jurisdiction, applicable law and recognition of foreign judgments.
These questions, although different, cannot be considered as totally unrelated. They are interconnected. The specific connections between the rules on jurisdiction, on applicable law and on recognition of foreign judgments on divorce justify a joint analysis, so that one does not lose sight of these connections and is able to avoid incoherent solutions. The present dissertation is a study of the issues raised by the Private International Law aspects of divorce law, from the perspective of Portuguese law.