Views
No Sunset of Retained EU Conflict of Laws in the UK, but Increased Risk of Sunburn
By Dr Johannes Ungerer, University of Oxford
The sunset of retained EU law in the UK has begun: the Retained EU Law (Revocation and Reform) Act 2023 received Royal Assent at the end of June. The Act will revoke many EU laws that have so far been retained in the UK by the end of 2023.
The good news for the conflict of laws is that the retained Rome I and II Regulations are not included in the long list of EU legal instruments which are affected by the mass-revocation. Both Regulations have been retained in the UK post-Brexit by section 3 of the European Union (Withdrawal) Act 2018 and were modified by the Law Applicable to Contractual Obligations and Non-Contractual Obligations (Amendment etc.) (EU Exit) Regulations 2019 (as amended in 2020). The retained (modified) Rome I and II Regulations will thus be part of domestic law beyond the end of 2023. Yet this retained EU law must not be called by name anymore: it will be called “assimilated law” according to section 5 of the Retained EU Law (Revocation and Reform) Act 2023 (although the title of this enactment, like others, will strangely continue to contain the phrase “Retained EU Law” and will not be changed to “Assimilated Law”, see section 5(5)).
The CJEU on Procedural Rules in Child Abduction Cases: private international law and children’s rights law
Comment on CJEU case Rzecznik Praw Dziecka e.a., C-638/22 PPU, 16 February 2023)
Written by Tine Van Hof, post-doc researcher in Private International Law and Children’s Rights Law at the University of Antwerp, previously published on EU live
The Court of Justice of the EU has been criticised after some previous cases concerning international child abduction such as Povse and Aguirre Zarraga for prioritising the effectiveness of the EU private international law framework (i.e. the Brussels IIa Regulation, since replaced by Brussels IIb, and the principle of mutual trust) and using the children’s rights law framework (i.e. Article 24 of the EU Charter of Fundamental Rights and the principle of the child’s best interests) in a functional manner (see e.g. Silvia Bartolini and Ruth Lamont). In Rzecznik Praw Dziecka the Court takes both frameworks into account but does not prioritise one or the other, since the frameworks concur.
Reappreciating the Composite Approach with Anupam Mittal v Westbridge II
Written by: Aditya Singh, BA.LL.B. (Hons) student at the National Law School of India University(NLSIU), Bengaluru and line editor at the National Law School Business Law Review (NLSBLR)
I. INTRODUCTION
The debate surrounding the composite approach i.e., the approach of accommodating the application of both the law applicable to the substantive contract and the Lex Fori to the arbitration clause has recently resurfaced with Anupam Mittal v Westbridge Ventures II (“Westbridge”). In this case, the Singapore Court of Appeal paved way for application of both the law governing substantive contract and the Lex Fori to determine the arbitrability of the concerned oppression and mismanagement dispute. The same was based on principle of comity, past precedents and s 11 of the International Arbitration Act. The text of s 11 (governing arbitrability) does not specify and hence limit the law determining public policy to Lex Fori. In any event, the composite approach regardless of any provision, majorly stems from basic contractual interpretation that extends the law governing substantive contract to the arbitration clause unless the presumption is rebuttable. For instance, in the instant case, the dispute would have been rendered in-arbitrable with the application of Indian law (law governing substantive contract) and hence the Singapore law was inferred to be the implied choice.[1] Read more
News
U.S. District Court’s Order in the Venezuelan Deportees Case Was Not Extraterritorial
The following post was kindly provided by Hannah Buxbaum, Vice President for International Affairs, Professor of Law and John E. Schiller Chair, Indiana University, and is cross-posted on tlblog.org
As was widely reported yesterday, the Trump administration permitted two planes carrying Venezuelan deportees to continue on their way to El Salvador after receiving a judicial order to turn the flights back to the United States. A story in Axios quotes an administration official who explains that they were not in fact “actively defying” the judge—the order just came too late, since the planes were already out of U.S. airspace. This seems to be an extraterritoriality argument, suggesting that the judge lacks authority to order an action to take place outside U.S. borders.
The administration has this completely wrong. The judge is ordering the administration to take action inside the United States—that is, to instruct the planes to turn around. That instruction will in turn cause something to happen elsewhere (the pilots will change course), but that doesn’t make the order impermissibly extraterritorial. This is exactly the same the basis on which courts in garden-variety civil disputes order parties subject to their jurisdiction to procure evidence or turn over assets that are located abroad. Moreover, since the planes were reportedly over international waters at the time the order was entered, compliance would not have required any actions by a foreign actor or within the territory of another state—in other words, it wouldn’t have created a conflict of laws.
Now that the deportees are already in El Salvador, that picture is more complicated, since local authorities there might refuse to take action. Even the existence of such a conflict, though, doesn’t mean that Judge Boasberg’s order exceeds his authority. It remains to be seen whether any of the other justifications the White House offered up for ignoring that order are any more compelling, but the argument that it didn’t apply once the planes had left the United States is certainly not.
For further leading expert input on extraterritoriality see one of our previous posts here.
Reminder: Quo Vadis Preferential Law Approach? A Survey on the Interpretation of Article 6(2) Rome I Regulation Across EU Member States
Benedikt Schmitz (University of Groningen) has kindly shared the following reminder of his Call for Participants with us.
The project concerns the interpretation of Article 6 (2) Rome I Regulation in the EU Member States and is very limited in nature. Time commitments are therefore very limited. Click here for more information.
We are still looking for scholars from Croatia, Czechia, Estonia, Finland, France, Ireland, Italy, Luxemburg, Malta, Romania, and Slovenia. Danish scholars may also participate on the basis of Article 5(2) Rome Convention. Read more
Migrant Workers and Social Security Rights across Borders: a Right or a Privilege?
You are invited to the third meeting of Migration Talks organized by the Jean Monnet Chair in Legal Aspects of Migration Management in the European Union and in Türkiye.
Speaker: Prof. Dr. Laura Carballo Piñeiro, Chair of Private International Law, Dean, Faculty of International Relations, University of Vigo
Title: Migrant Workers and Social Security Rights across Borders: a Right or a Privilege?
Date and Time: Wednesday, March 19, 2024, 10.30 a.m. -11.30 a.m. (CET)
Location: via Zoom (The link shall be provided upon request: migration@bilkent.edu.tr)
Abstract
Access to social security is a human right that only a quarter of the world population enjoy. Such an access is particularly challenging for workers who cross national borders, as they may not get access to a national scheme, get access only in a limited way compared to other national or resident workers in the country, be obliged to contribute to more than one system, or not benefit from a system to which had previously contributed due to relocation to their home country or a third country. State coordination in these matters is thus of the essence, in particular to ensure that contributions are only paid to one system at a time, aggregation and maintenance of acquired rights for those workers that are in the course of acquisition, and portability of benefits. Even in a coordinated scenario, legal divergence across countries might further complicate access to benefits. For example, the funding of a benefit by taxes and not contributions might automatically exclude posted workers from their enjoyment. The EU Social Security Coordination Regulation will be used in the presentation to address these principles, the challenges faced by States and social partners in their enforcement, and tools developed to address them. Outside this privileged area, coordination relies on a complex, but insufficient network of treaties which very much focus on the role of receiving countries. As the movement of workers increases, more attention should be paid to the role of sending States by researching the interplay between social protection and migrant studies.
