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A few thoughts on Golan v. Saada – this week at the US Supreme Court
Written by Mayela Celis, UNED
The oral arguments of the case Golan v. Saada (20-1034) will take place tomorrow (Tuesday 22 March 2022) at 10 am Washington DC time before the US Supreme Court. For the argument transcripts and audio, click here. The live audio will be available here.
We have previously reported on this case here and here.
“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.” (our emphasis)
Please note that US courts often use the terms “ameliorative measures” and “undertakings” interchangeably (as stated in the petition). Also referred to as protective measures in other regions.
This case stems from the fact that there is a split in the US circuits (as well as state courts).
There were several amicus curiae briefs filed, three of which are worthy of note: the amicus brief of the United States, the amicus brief of Hague Conventions delegates Jamison Selby Borek & James Hergen and finally, the amicus brief filed by Linda J. Silberman, Robert G. Spector and Louise Ellen Teitz.
The amicus brief of the United States stated:
“Neither the Hague Convention on the Civil Aspects of International Child Abduction nor its implementing legislation requires a court to consider possible ameliorative measures upon finding under Article 13(b) that there is a grave risk that returning a child to his country of habitual residence would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. Rather, the Convention and ICARA leave consideration of possible ameliorative measures to a court’s discretion.”
The amicus brief of the Hague Delegates coincide with this statement of the United States, while the brief of professors Silberman, Spector and Teitz holds the opposite view.
As is well known, the US Executive Branch’s interpretation of a treaty is entitled to great weight. See Abbott vs. Abbott 560 U. S. _ (2010); Sumitomo Shoji America, Inc. v. Avagliano, 457 U. S. 176.
In my personal opinion, the position taken by the United States is the correct one.
The fact is that the Hague Abduction Convention is silent on the adoption of ameliorative measures. Article 13 indicates: “the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that […]” (our emphasis). The discretion of the court is thus key. Besides, and as we all aware, the Child Abduction Convention is not a treaty on recognition and enforcement of protective measures.
In some legal systems, this void has been supplemented with additional legislative measures such as the Brussels II ter Regulation (2019/1111) in the European Union. Importantly, this instrument provides for the seamless enforcement of provisional – including protective – measures, which makes it a much more cogent system (see, for example, recitals 30, 45 and 46, and articles 2(1)(b), 15 – on jurisdiction-, 27(5), 35(2) and 36(1)). And not to mention the abolition of the declaration of enforceability or the registration for enforcement, which speeds up the process even more.
Furthermore, and particularly in the context of the United States, the onus that ameliorative measures exist or could be made available should be placed mainly on the parties requesting the return, and not on the court. See the amicus brief filed by former US judges where they stressed that “mandating judicial analysis of ameliorative measures forces US courts beyond their traditional jurisdiction and interactions with foreign law / civil law judges perform investigatory functions; common law judges do not.”
Arguably, the 13(1)(b) Guide to Good Practice may be read as supporting both views. See in particular:
See paragraph 36: “The examination of the grave risk exception should then also include, if considered necessary and appropriate, consideration of the availability of adequate and effective measures of protection in the State of habitual residence.” (our emphasis).}
See paragraph 44: “Protective measures may be available and readily accessible in the State of habitual residence of the child or, in some cases, may need to be put in place in advance of the return of the child. In the latter case, specific protective measures should only be put in place where necessary strictly and directly to address the grave risk. They are not to be imposed as a matter of course and should be of a time-limited nature that ends when the State of habitual residence of the child is able to determine what, if any, protective measures are appropriate for the child. In certain circumstances, while available and accessible in the State of habitual residence, measures of protection may not be sufficient to address effectively the grave risk. An example may be where the left-behind parent has repeatedly violated protection orders.” (our emphasis)
But see in contrast paragraph 41 of the Guide, which was mentioned in the amicus brief of Child Abduction Lawyers Association (CALA).
Putting this legal argument aside, and in the context of the United States, there are several reasons why US courts should not be required to consider ameliorative measures (but may do so on a discretionary basis):
- The United States is not a Contracting Party to any global treaty that would allow the recognition and enforcement of protective measures (such as the 1996 Hague Protection of Children Convention – USA is only a signatory State);
- A great number of child abductions occur to and from the United States and Mexico. The Mexican legal system is not familiar with the recognition and enforcement of undertakings or with adopting mirror orders in the context of child abduction (or in any other context for that matter);
- Requiring courts to look into ameliorative measures in every single case would unduly delay abduction proceedings;
- Social studies have revealed that undertakings are very often breached once the child has been returned (usually with the primary carer, the mother), which has the direct result of leaving children and women in complete vulnerability. See Lindhorst, Taryn, and Jeffrey L Edleson. Battered Women, Their Children, and International Law : The Unintended Consequences of the Hague Child Abduction Convention. Northeastern Series on Gender, Crime, and Law. Boston, MA: Northeastern University Press, 2012. See also amicus brief of domestic violence survivors.
In conclusion, I believe that we all agree that ameliorative measures (or undertakings) are important. But they must be adequate and effective and should not be adopted just for the sake of adopting them without any teeth, as this would not be in the best interests of the child (in concreto).
New York’s Appellate Division Holds that Chinese Judgment Should Not Be Denied Enforcement on Systemic Due Process Grounds
Written by William S. Dodge (Professor, University of California, Davis, School of Law)
Should courts in the United States refuse to recognize and enforcement Chinese court judgments on the ground that China does not provide impartial tribunals or procedures compatible with the requirements of due process of law? Last April, a New York trial court said yes in Shanghai Yongrun Investment Management Co. v. Kashi Galaxy Venture Capital Co., relying on State Department Country Reports as conclusive evidence that Chinese courts lacked judicial independence and suffered from corruption. As Professor Wenliang Zhang and I pointed out on this blog, the implications of this decision were broad. Under the trial court’s reasoning, no Chinese judgment would ever be entitled to recognition in New York or any of the other U.S. states that have adopted Uniform Acts governing foreign judgments. Moreover, U.S. judgments would become unenforceable in China because China enforces foreign judgments based on reciprocity. But on March 10, just three weeks after oral argument, New York’s Appellate Division answered that question no, reversing the trial court’s decision.
As background, it is important to note that the recognition and enforcement of foreign country judgments in the United States is generally governed by state law. Twenty-eight states and the District of Columbia have enacted the 2005 Uniform Foreign-Country Money Judgments Recognition Act. In nine additional states, its predecessor, the 1962 Uniform Foreign Money-Judgments Recognition Act, remains in effect. At the time of the trial court’s decision, the 1962 Uniform Act governed in New York, but it was superseded by the 2005 Uniform Act on June 11, 2021. Both Uniform Acts provide for the nonrecognition of a foreign judgment if “the judgment was rendered under a judicial system that does not provide impartial tribunals or procedures compatible with the requirements of due process of law.”
This systemic lack of due process ground for nonrecognition comes from the U.S. Supreme Court’s 1895 decision in Hilton v. Guyot, issued at a time when lawyers routinely distinguished between civilized and uncivilized nations. It was incorporated in the 1962 Uniform Act at the height of the Cold War, and included in the 2005 Uniform Act without discussion, apparently to maintain continuity with the 1962 Act. Despite its codification for nearly sixty years, fewer than five cases have refused recognition on this ground. The leading case is Bridgeway Corp. v. Citibank, involving a Liberian judgment issued during its civil war, when the judicial system had almost completely broken down.
Shanghai Yongrun involved a business dispute between two Chinese parties, which was submitted to a court in Beijing under a choice-of-forum clause in the parties’ agreement. The defendant was represented by counsel, presented its case, and appealed unsuccessfully. Nevertheless, the New York trial court held that the Chinese judgment was not enforceable because China lacks impartial tribunals and procedures compatible with due process. The court relied “conclusively” on China Country Reports prepared by the State Department identifying problems with judicial independence and corruption in China.
In a brief order, the Appellate Division reversed. It concluded that the trial court should not have dismissed the action based on the Country Reports. These Reports did not constitute “documentary evidence” under New York’s Civil Practice Law and Rules. But more fundamentally, reliance on the Country Reports was inappropriate because they “primarily discuss the lack of judicial independence in proceedings involving politically sensitive matters” and “do not utterly refute plaintiff’s allegation that the civil law system governing this breach of contract business dispute was fair.”
On this, the Appellate Division was clearly correct. The State Department prepares Country Reports to administer provisions of the Foreign Assistance Act denying assistance to countries that consistently engage in gross violations of human rights, not to evaluate judicial systems for other purposes. See 22 U.S.C. §§ 2151n & 2304. The Reports themselves warn that they “they do not state or reach legal conclusions with respect to domestic or international law.” Moreover, if these Reports were used to determine the enforceability of foreign judgments, China would not be the only country affected. An amicus brief that I wrote and fourteen other professors of transnational litigation joined noted that State Department Country Reports expressed similar concerns about judicial independence, corruption, or both with respect to 141 other countries, including Argentina, Brazil, Italy, Japan, Mexico, South Korea, and Spain.
The Appellate Division concluded that “[t]he allegations that defendants had an opportunity to be heard, were represented by counsel, and had a right to appeal in the underlying proceeding in the People’s Republic of China (PRC) sufficiently pleaded that the basic requisites of due process were met.” By focusing on the facts of the specific case, the Appellate Division appears to have taken a case-by-case, rather than a systemic, approach to due process. Such a case-by-case approach is expressly permitted under the 2005 Uniform Act, which adds as a new ground for nonrecognition that “the specific proceeding in the foreign court leading to the judgment was not compatible with the requirements of due process of law.” Such a case-specific approach avoids the overinclusiveness of denying recognition on systemic grounds when there are no defects in the judgment before the court.
The Appellate Division’s decision in Shanghai Youngrun continues the growing trend that Professor Zhang and I have noted of U.S. decisions recognizing and enforcing Chinese judgments. Just two months before this decision, in Yancheng Shanda Yuanfeng Equity Investment Partnership v. Wan, a U.S. district court in Illinois recognized and enforced a Chinese judgment in another business dispute. The court expressly rejected the New York trial court’s holding in Shanghai Yongrun, noting “the multiple federal cases … where American courts enforced Chinese court judgments and/or acknowledged the adequacy of due process in the Chinese judicial system.” One hopes that this trend will continue.
A few takeaways from the 2022 meeting of the HCCH governing body (CGAP): publications and future meetings
On 7 March 2022, the Conclusions & Decisions of the governing body of the Hague Conference on Private International Law (HCCH), i.e. the Council on General Affairs and Policy (CGAP), were released. Click here for the English version and here for the French version.
For official information on the ceremony of signatures and ratifications of instruments, click here (HCCH news item). For our previous post on the signature of the USA of the 2019 Judgments Convention, click here.
Although a wide range of topics was discussed, I would like to focus on two: publications and future meetings.
1) Publications
This meeting was very fruitful in getting the necessary approval for HCCH publications. There were three publications approved, ranging from family law to access to justice for international tourists.
Family law
The Council adopted the following decision: “12. CGAP approved the Practitioners’ Tool: Cross-Border Recognition and Enforcement of Agreements Reached in the Course of Family Matters Involving Children, subject to editorial amendments, for publication.”
The Report of the Experts’ Group on Cross-Border Recognition and Enforcement of Agreements in Family Matters Involving Children (meetings of 14-15 September and 29-30 November 2021) is available here. The Chair of the Experts’ Group is Professor Paul Beaumont. The work of this Expert’s Group has ended.
The draft of the Practitioners’ Tool: Cross-Border Recognition and Enforcement of Agreements Reached in the Course of Family Matters Involving Children has been made available. For French, click here.
As some of you may be aware, this tool is an alternative to the drafting of a binding instrument in this area. In 2017, the Experts’ Group drafted the following Conclusion and Recommendation for the attention of the Council on General Affairs and Policy of March 2018:
“Therefore the Experts’ Group recommends to the Council to develop a new Hague Convention that would build on, and add value to, the 1980, 1996 and 2007 Hague Conventions, and be developed with a view to attracting as many States as possible.”
The reasoning of the Experts’ Group was the following:
While the existing Hague Family Conventions encourage the amicable resolution of disputes involving children, they do not contemplate the use of “package agreements” (i.e., family agreements related to custody, access, relocation and/or child support and which may include spousal support and other financial matters, such as property issues) and do not provide a simple, certain or efficient means for their enforcement. From the Group’s experience it is recognised that such agreements are increasingly frequently used. Very often the matters covered require the simultaneous application of more than one Hague Family Convention while some elements of those package agreements are not within the scope of any of the existing Hague Family Conventions. This creates difficulties for the enforcement of package agreements.
Unfortunately (or fortunately depending on how people may view this), this initiative was not taken on board by Council in 2018. See here.
Apostille
The Council adopted the following decision: “31. CGAP approved the second edition of the Practical Handbook on the Operation of the Apostille Convention, subject to editorial amendments, for publication.” This draft is not yet publically available.
The first edition of the Apostille Handbook is available here.
Access to Justice for international tourists and visitors
The Council adopted the following decision: “3. CGAP approved the Practical Guide to Access to Justice for International Tourists and Visitors, subject to editorial amendments, for publication on the HCCH website.”
The draft of the Practical Guide to Access to Justice for International Tourists and Visitors is available here.
As with the recognition and enforcement of agreements reached in the course of family matters, the initial proposal was the developing of a new instrument.
At its meeting in 2013, the CGAP took note of the suggestion by Brazil to undertake work on co-operation in respect of protection of tourists and visitors abroad. See in particular Prel. Doc. No 3 of February 2018 – Final report concerning a possible future Convention on Co-operation and Access to Justice for International Tourists drafted by Professor Emmanuelle Guinchard.
2) Meetings
With regard to future meetings, there are a few meetings in the pipeline:
Special Commission meetings (SC) in 2022 (basically, a global meeting of experts):
- Special Commission on the practical operation of the 2007 Child Support Convention and its Protocol – to be held from 17 to 19 May (in-person meeting) – This will be the first meeting ever of the SC on this topic
- Special Commission on the practical operation of the 1993 Adoption Convention – to be held from 4 to 8 July (online meeting)
- Special Commission on the practical operation of the 2000 Protecion of Adults Convention – to be held from 9 to 11 November – Tnis will be the first meeting ever of the SC on this topic
And finally, the Working Group on matters related to jurisdiction in transnational civil or commercial litigation – to hold “two further meetings before the 2023 meeting of CGAP, with intersessional work as required”.
News
4-year PostDoc Position in European law at Humboldt University Berlin
The Law Faculty of Humboldt University is inviting applications for a four-year PostDoc position in European law. The position is fully paid and funded by the graduate research programme DynamInt (Dynamic Integration Order) which itself is funded by the German Research Foundation (Deutsche Forschungsgemeinschaft).
The PostDoc is supposed to pursue her/his research project in the field of European Law (including European Private International Law and International Civil Procedure). She/he is also expected to interact with the group of young researchers, who all work on their dissertation projects within the thematic framework of harmonization and plurality tendencies in the EU.
The position is targeting German-speaking researchers (in contrast to the international PostDoc positions advertised last week). More information is available here.
PhD positions in Antwerp
The University of Antwerp has opened two vacancies for PhD research related to private international law.
The first covers inter alia EU private international law, and will be supervised by prof. dr. Johan Meeusen and prof. dr. Mathieu Leloup. The four-year scholarship is sponsored by the Research Foundation – Flanders (FWO). The candidate will write a PhD on mutual trust and rule of law requirements in the field of judicial cooperation in civil and criminal matters. The researcher will have to examine, inter alia, the enforcement of the European Union’s rule of law requirements by courts applying EU private international law instruments. All information on this position, and how to apply, can be found on the University of Antwerp’s website.
The second is on the cusp of private and public international law and will be supervised by Thalia Kruger. This position, also for four years, is funded by the Law Faculty. The research will be about international contracts in the context of international treaties on water. The highland water project (Lesotho and South Africa) is a possible approach. More information and requirements are also available on the website of the University of Antwerp.
Dutch Journal of PIL (NIPR) – issue 2023/4
The latest issue of the Dutch Journal on Private International Law (NIPR) has just been published
NIPR 2023 issue 4
EDITORIAL
I. Sumner, The next stops on the European international family law train / p. 569-571
Abstract
The European legislature is not yet finished with the Europeanisation of private international family law. This editorial briefly introduces two new proposals, namely the Proposal for a European Parentage Regulation and the Proposal for a European Adult Protection Regulation.