image_pdfimage_print

Views

Granting asylum to family members with multiple nationalities – the choice-of-law implications of the CJEU-Judgment of 9th November 2021, Case C-91/20

/in /by

Written by Marie-Luisa Loheide, doctoral candidate at the University of Freiburg.

 

From a PIL-perspective, granting asylum to the family members of a recognised asylum-seeker or refugee is relevant regarding the determination of an individual’s personal status and, more specifically, concerning the question of the relation between the individual’s political status (status politicus) and his or her personal status (status privatus). Whereas the personal status of an individual is ususally determined according to her or his own protection status, it is disputed with regard to personae coniunctae – meaning relatives of a protected person who do not (yet) possess a protection status of their own –, whether their personal status may be derived from the status of the already protected family member or whether it has to be determined by the person’s individual status. This is decisive as to the applicability of Art. 12(1) of the Convention relating to the Status of Refugees signed in Geneva on 28th July 1951 (Geneva Convention), according to which all conflict rules leading to the law of the persecuting state are modified by substituting habitual residence for nationality.

In Germany, § 26 of the Asylum Act (Asylgesetz) – with only few exemptions made in its para. 4 – grants family asylum to people who themselves do not satisfy the conditions for receiving asylum (Art. 16a of the German Basic Law), but whose spouse or parent has been granted this status. According to § 26(5) Asylgesetz, this also comprises international protection within the meaning of the refugee status as defined by the Geneva Convention as well as the EU-specific subsidiary protection status (§ 4 Asylgesetz, implementing Art. 15 et seq of the EU-Directive No. 2004/83). The close relative’s protection is thus a derived right from the family member’s political status. However, by this – even though the opposite might be implied by the misleading terminology of “derived” – the spouse or child of the protected person acquire a protection status of their own. § 26 Asylgesetz is meant to support the unity of the family and aims to simplify the asylum process by liberating family members from the burdensome task of proving that they individually satisfy the conditions (e.g. individual religious or political persecution) for benefitting from international protection or asylum.

While the exemptions made in § 26(4), (5) and § 4(2) Asylgesetz correspond to Art. 1D of the Geneva Convention as well as to Art. 12(2) of the EU-Directive No. 2011/95 (Qualification Directive), the non-exemption of people with multiple nationalities, who could also be granted protection in one of the states of which they are nationals, goes further than the Geneva Convention and the Qualification Directive (see Art. 1A(no. 2) of the Geneva Convention and Art. 4(3)(e) of the Qualification Directive).

This discrepancy was the subject of a preliminary question asked by the German Federal Administrative Court (Bundesverwaltungsgericht) and was decided upon by the CJEU on 9th November 2021 (Case C-91/20). The underlying question was whether the more favourable rule of § 26 Asylgesetz is compatible with EU law.

The CJEU in general affirmed this question. For doctrinal justification, it referred to Art. 3 of the Qualification Directive, which allows more favourable rules for granting international protection as long as they do “not undermine the general scheme or objectives of that directive” (at [40]). According to the CJEU, Art. 23(2) of the Qualification Directive leads to the conclusion that the line is to be drawn where the family member is “through his or her nationality or any other element characterising his or her personal legal status, entitled to better treatment in […] [the host] Member State than that resulting from the grant of refugee status” (at [54]). For example, this could be the case if the close relative is a national of their spouse’s or parent’s host country or one of their nationalities entitles them to a better treatment there (like a Union citizenship). This interpretation also corresponds to the UNHCR’s guidelines in respect to the Geneva Convention (see [56] et seq.).

The CJEU’s judgment strengthens the right to family life guaranteed by human rights, namely Art. 8 ECHR as well as Art. 7 and Art. 24 of the Charter of Fundamental Rights of the EU (see [55]). Disrupting a family unit can have a negative impact on the individual integration process (see Corneloup et al., study PE 583.157, p. 11), which should be neither in the interest of the individual nor the host state. This right to family unity, according to the CJEU, exists irrespective of the fact that the concerned families could alternatively take residence in one of the family member’s home states, because otherwise the person who had already been granted a protection status in a different country could not make use of his or her own protection (see [59] et seq.). In so far, the judgment is to be welcomed. On the other hand, opening the doors to more favourable domestic laws on a derivative protection of family members will lead to more situations where the law applicable to a family relationship between a person applying for family asylum and the person who had already been granted international protection must be determined under prior consideration of domestic PIL rules. However, PIL rules in this regard are frequently inconsistent among the EU Member States.

In practice, the CJEU’s judgment discussed here is particularly relevant in the overall picture that is characterised by the CJEU’s recent judgment of 19th November 2020 (C-238/19), according to which – contrary to the previous German Federal Administrative Court’s practice – the refugee status according to the Geneva Convention may be granted to individuals who are eligible to be drafted for military service in Syria, which potentially means all Syrian men of a certain age. However, the precise implementation of this judgment in current German judicial and administrative practice remains controversial (see here). In cases where Syrian men actually are granted a protective status, their spouses and children are entitled to receive family asylum as well. In Germany, this is the case even if they possess multiple nationalities, but, according to the CJEU judgment discussed here, only as long as they are not entitled to a better treatment in the host Member State through a different legal status in this country, e.g. nationality or Union citizenship. As a matter of fact, there will be most probably very few people among those seeking protection in a Member State who have a Union citizenship, so that the CJEU’s restriction to the scope of § 26 Asylgesetz will only be practically relevant in very few cases.

The Nigerian Court of Appeal declines to enforce an Exclusive English Choice of Court Agreement

/3 Comments/in /by

The focus of this write-up is a case note on a very recent decision of the Nigerian Court of Appeal that declined to enforce an exclusive English choice of court agreement.[1] In this case the 1st claimant/respondent was an insured party while the defendant/appellant was the insurer of the claimant/respondent. The insurance agreement between the 1st claimant/respondent and defendant/appellant provided for both an exclusive choice of court and choice of law agreement in favour of England. The claimants/respondents issued a claim for significant compensation before the High Court of Cross Rivers State, Nigeria for breach of contract and negligence on the part of the defendant/appellant for failure to fully perform the terms of the insurance contract during the period the 1st claimant/respondent was sick in Nigeria. The defendant/appellant challenged the jurisdiction of the High Court of Cross Rivers State, and asked for a stay of proceedings on the basis that there was an exclusive choice of court agreement in favour of England. The 1st claimant/respondent in a counter affidavit stated mainly at the trial court that he was critically ill, and the 2nd claimant/respondent (the employer of the 1st claimant/respondent) had serious financial difficulties in paying the 1st claimant/respondent’s salaries, so in the interest of justice a stay should not be granted.

Both opposing parties were in agreement throughout the case that it was the Brandon test,[2] as applied by the Nigerian Supreme Court[3] that was applicable in this case to determine if a stay should be granted in the enforcement of a foreign choice of court agreement. Now the Brandon test (named after an English judge called Brandon J, who formulated the test) as applied in the Nigerian context is as follows:

“1. Where plaintiffs sue in Nigeria in breach of an agreement to refer disputes to a foreign court, and the defendants apply for a stay, the Nigerian court, assuming the claim to be otherwise within the jurisdiction is not bound to grant a stay but has a discretion whether to do so or not. 2. The discretion should be exercised by granting a stay unless strong cause for not doing it is shown. 3. The burden of proving such strong cause is on the plaintiffs. 4. In exercising its discretion the court should take account of all the circumstances of the particular case. 5. In particular, but without prejudice to (4), the following matters where they arise, may be properly regarded: (a) In what country the evidence on the issues of fact is situated, or more readily available, and the effect of that on the relative convenience and expense of trial as between the Nigerian and foreign courts. (b) Whether the law of the foreign court applies and, if so, whether it differs from Nigerian law in any material respects. (c) With what country either party is connected and how closely (d) Whether the defendants genuinely desire trial in the foreign country, or are only seeking procedural advantages. (e) Whether the plaintiff s would be prejudiced by having to sue in the foreign country because they would (i) be deprived of security for that claim; (ii) be unable to enforce any judgment obtained; (iii) be faced with a time-bar not applicable in Nigeria; or (iv) for political, racial, religious, or other reasons be unlikely to get a fair trial (v) the grant of a stay would amount to permanently denying the plaintiff any redress.”

The reported cases where the plaintiff(s) have successfully relied on the Brandon test to oppose the enforcement of a foreign jurisdiction clause are where their claim is statute barred in the forum chosen by the parties.[4] Indeed, the burden is on the plaintiff to show strong cause as to why Nigerian proceedings should be stayed in breach of a choice of court agreement; if not, Nigerian courts will give effect to the foreign choice of court agreement.[5]

The High Court (Ayade J) relying on the Nigerian Supreme Court’s decision on the application of the Brandon tests declined to uphold the exclusive choice of court agreement in the interest of justice. It is fair to say that the trial judge applied a very flexible approach on the issue of whether the exclusive English choice of court agreement should be enforced. Indeed, he was very focused on substantial justice (rather than the strong cause test), thereby stretching the criteria provided in the Brandon test.[6] Ayade J’s judgment is worth quoting thus:

“This Court is fully aware of the principles of party autonomy, freedom and sanctity of contract, the doctrine that parties should be held to their contract (pacta sunt servanda) and this puts the burden on the plaintiff to show why the proceedings should continue in Nigeria inspite of the foreign jurisdiction clause, which in the opinion of this Court, the plaintiff has rightly done.”[7]

He also interestingly remarked that:

“Let it be remarked that this Court is not unmindful, and there is no doubt that in an area of globalization, the issue of foreign jurisdiction clause and the subject of conflict of laws has a future and one of growing importance, see MORRIS: The conflict of laws, 7th Edition, Sweet and Maxwell, 2010 page 16. This is reflected in the expanded membership of the specialist international bodies such as the Hague Conference on Private International Law: Rome Convention on Contractual Obligations 1980, Convention on Choice of Court, 1965, Convention on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters, 1971, Convention on International Access to Justice, The Brussel Convention and the Lugano Convention, Convention on the Law Applicable to Contractual Obligation, Organization for the Harmonization of Business Law in Africa (OHADA), and the various efforts at Harmonization and Unification of Law are still in the inchoate stage in this part of the world. We shall get there at a time when there shall be one law, one forum and one world.
It is for the above reasons that I am of the view that the current attitude of the Nigerian Courts to foreign jurisdiction clauses remains as stated in the Norwind. Thus, I am inclined to agree that Courts are not bound to stay its proceedings on account of a foreign jurisdiction clause in a Court.”[8]

In the final analysis, he held as follows:

“Applying the law as declared above to the instant case and after due consideration of all the circumstances of this case, and in the exercise of discretion as to whether or not to do so in this case and this Court, which endeavoured always to do substantial justice between the parties. The sole issue raised by the claimants/respondents is therefore resolved in their favour against the defendant/applicant. Accordingly, this application is hereby dismissed.”[9]

On appeal, the defendant/appellant argued that in reality the test the High Court (Ayade J) applied was one of balance of convenience, and did not properly follow the strong cause test as stipulated by the Nigerian Supreme Court in applying the Brandon test.

The claimant/respondent brilliantly filed a respondent’s notice to justify the High Court’s decision on other grounds. The core argument was that the action will be statute-barred in England if the action was stayed before the Nigerian Court. This argument was clearly supported by the Brandon test as applied by the Nigerian Supreme Court.[10]

The Court of Appeal unanimously dismissed the appeal. Shuaibu JCA in his leading judgment held that:

“In exercising its discretion to grant a stay of proceedings in a case filed in breach of an agreement to refer disputes to a foreign country, the Court would take into consideration a situation where the granting would spell injustice to the plaintiff as where the action is already time barred in the foreign country and the grant of stay would amount to permanently denying the plaintiff any redress.”[11]

In analysing the Brandon test, as applied by the Nigerian Supreme Court he held that:

“It is imperative to state here that the Brandon Test is basically a guideline to judges in exercising their discretionary power to order a stay of proceedings where as in the present case, there is a foreign jurisdiction clause in the contract. It is to be noted however that like every discretion, the judge must exercise it judicially and judiciously based on or guided by law and discretion according to sound and well considered reason. Perhaps, the most noticeable guideline which I consider more novel is that the Brandon Test enjoins Court to exercise its discretion in favour of the applicant unless strong cause for not doing so is shown which places the burden of showing such strong cause for not granting the application on the respondent (claimant).”[12]

After referring to the counter-affidavit of the claimant/respondent where they mainly alleged at the trial court that the 1st claimant/respondent was sick and had financial difficulties, Shuaibu JCA adopted a similar flexible approach to the Brandon tests as Ayade J. He held that:

“What is discernible from the above is that the evidence on the issues of fact is situated and more readily available, in Nigeria and the lower Court, was therefore right in refusing to adhere to foreign jurisdiction clause on the basis that the case is more closely connected to Nigeria. In effect, the trial Court has taken into account the peculiar circumstances of the case vis-à-vis the guidelines in the Brandon Test and thus exercised its discretion judicially and judiciously in refusing to grant stay of proceedings.”[13]

Owoade JCA in his concurring judgment held that:

“In the instant case, more particularly by paragraphs 6, 7 and 8 of the Respondents counter-affidavit in opposition to the Appellant’s motion for an order for stay, the Respondents have established that they would suffer injustice if the case is stayed. This is more so in the instant case where the Plaintiffs/1st Respondent action was statute barred in the foreign Court and the grant of stay would amount to permanently denying the Plaintiff/1st Respondent any redress.”[14]

It is difficult to fault the decision of the High Court and Court of Appeal in this case, except for Shuaibu JCA’s occasional confusion of choice of court with choice of law (a conceptual mistake some Nigerian judges make). An additional observation is that this procedural issue on foreign choice of court agreement took over 5 years to resolve so far. The issue of delay is something to look into in the Nigerian legal system – a topic for another day.

The standard test for determining if a stay should be granted in breach of a foreign jurisdiction clause is the Brandon test as applied by the Nigerian Supreme Court.[15] I am in total agreement with Shuaibu JCA that the Brandon test is a guideline. In other words, it must not be followed slavishly by Nigerian courts or indeed courts of other common law countries in Africa. A judge should be able to consider the facts of the instant case and decide if there is a strong cause for not granting a stay in breach of a foreign jurisdiction clause. In this case, the fact that the action will be statute-barred was a strong ground not to grant a stay in breach of the exclusive choice of court agreement in favour of England. The financial difficulties and sickness of the claimant/respondent were also factors that could be taken into account in the interest of justice, although they are not as strong as the claim that the action was statute-barred in a foreign forum. Indeed, I have argued elsewhere that the test of the interest of justice should not be excluded from the Brandon test analysis.[16] Of course, I agree this might create uncertainty and undermine party autonomy in some cases, but this problem can be curtailed if the burden is firmly placed at the door steps of the claimant as to why a foreign jurisdiction clause should not be enforced.

Nigeria is a growing economy, and its lawyers, arbitrators and judges should be able to benefit from international commercial litigation and arbitration business like developed countries such as England. Of course, the best way to do this is to make Nigeria attractive for litigation in matters of speed, procedural rules, content of applicable laws, honesty of judges, and competence of judges to handle cases etc. However, Nigerian courts should not blindly apply party autonomy in the enforcement of choice of court agreements despite the certainty and predictability it offers to international commercial actors.

This brings me to an even more important issue. This case involved an insurance contract. The insured party – the 1st claimant/respondent – was obviously the weaker party in this case. The traditional common law in Nigeria has not created a clear exception for the protection of weaker parties in the enforcement of foreign choice of court agreements. The European Union has done that in the case of employees, consumers and insured persons.[17] Nigeria and the rest of common law Africa’s legal system is not an island of its own. We can learn from the EU experience and borrow some good things from them. Indeed, the Nigerian Supreme Court had held that there is nothing wrong with borrowing from another legal system.[18] I will add there should be good reasons for borrowing from another legal system especially former colonial powers.

In this connection, it is proposed that in the case of weaker parties such as insured, consumers and employees, a party domiciled or habitually resident in Nigeria should be able to sue in Nigerian courts in breach of a foreign jurisdiction clause. In addition, the common law concept of undue influence could be applied so that cases where a party is presumably weak in the contractual relationship, such a party should not be bound by the foreign jurisdiction clause. Of course, there is a danger that this could create uncertainty. So I propose that in cases of business to business contracts, Nigerian and African courts should be more willing to enforce foreign choice of court agreements strictly.

Back to the case at hand, it is not unlikely that this case might come before the Nigerian Supreme Court on appeal. The Nigerian Court of Appeal has applied varied approaches to the enforcement of foreign choice of court agreements in Nigeria. Indeed, I noted three inconsistent decisions of the Nigerian Court of Appeal in this area of the law as recent as 2020.[19] On the one extreme hand, there is the contractual approach that strictly treats a choice of court agreement like any ordinary commercial contract.[20] This approach is good in that it promotes party autonomy, but the problem with this approach is that it ignores the procedural context of a choice of court agreement and might spell injustice due to its rigid approach. On the other extreme hand, there is the ouster clause approach that strictly refuses to enforce a foreign choice of court agreement.[21] Though this approach might favour litigation in Nigeria and other African countries, it dangerously undermines party autonomy, and international commercial actors are likely to lose confidence in a legal system that does not uphold party autonomy. The other approach is the middle ground of the Brandon test, which upholds a choice of court agreement except strong reason is demonstrated to the contrary. This is standard approach the Nigerian Supreme Court has applied.[22]

It is recommended that if this case goes to the Nigerian Supreme Court, it should continue its endorsement of the Brandon test. It should also consider the addition of the interest of justice approach as was utilised by some of the High Court and Court of Appeal judges in this case. What is missing in the Nigerian Supreme Court’s jurisprudence is a common law test that protects weaker parties like insured, consumers, and employees, as can be utilised in this case to protect the insured party (the 1st claimant/respondent). The time to act is now.

[1]BUPA Insurance v Chakraverti & Anor (2021) LPELR-55940 (CA).

[2] The Owners of Cargo Lately Laden on Board the Ship or Vessel ‘ Elftheria ’ v ‘ The Elftheria ’ (Owners), ‘ The Elftheria ’ [1969] 1 Lloyd ’ s Rep 237 (Brandon J).

[3] Sonnar (Nig) Ltd v Norwind (1987) 4 NWLR 520; Nika Fishing Company Ltd v Lavina Corporation (2008) 16 NWLR 509.

[4]Sonnar (Nig) Ltd v Norwind (1987) 4 NWLR 520. See also Hull Blyth (Nig) Ltd v Jetmove Publishing Ltd (2018) LPELR-44115 (CA).

[5]Nika Fishing Company Ltd v Lavina Corporation (2008) 16 NWLR 509. See also Captain Tony Nso v Seacor Marine (Bahamas) Inc (2008) LPELR-8320 (CA); Beaumont Resources Ltd & Anor v DWC Drilling Ltd (2017) LPELR-42814 (CA).

[6]Compare Adesanya v Palm Lines Ltd (1967) NCLR 133, which is one of the earliest cases where the balance of convenience and interest of justice test was applied in enforcing a foreign choice of court agreement.

[7]Cited in BUPA Insurance v Chakraverti & Anor (2021) LPELR-55940 (CA) 3.

[8]Cited in BUPA Insurance v Chakraverti & Anor (2021) LPELR-55940 (CA) 3-4.

[9] Cited in BUPA Insurance v Chakraverti & Anor (2021) LPELR-55940 (CA) 5.

[10] Sonnar (Nig) Ltd v Norwind (1987) 4 NWLR 520.

[11]BUPA Insurance v Chakraverti & Anor (2021) LPELR-55940 (CA).21.

[12]BUPA Insurance v Chakraverti & Anor (2021) LPELR-55940 (CA).

[13] BUPA Insurance v Chakraverti & Anor (2021) LPELR-55940 (CA) 28.

[14] BUPA Insurance v Chakraverti & Anor (2021) LPELR-55940 (CA) 30.

[15] Sonnar (Nig) Ltd v Norwind (1987) 4 NWLR 520; Nika Fishing Company Ltd v Lavina Corporation (2008) 16 NWLR 509.

[16]CSA Okoli, “Analysis of Choice of Court Agreements in Nigeria in the Year 2020” (2021) 21 Dutch Journal of Private International Law 292, 305.

[17]See Article 10 – 23 of Brussels I Regulation Recast (Council Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 [2012] OJ L351/1.). See also recital 19 to Brussels I Regulation Recast.

[18]Caribbean Trading & Fidelity Corporation v Nigerian National Petroleum Corporation (2002) 34 WRN 11 (Ayoola JSC, Mohammed JSC (as he then was), Ejiwunmi JSC).

[19]CSA Okoli, “Analysis of Choice of Court Agreements in Nigeria in the Year 2020” (2021) 21 Dutch Journal of Private International Law 292 – 305.

[20] Damac Star Properties LLC v Profitel Limited (2020) LPELR-50699(CA). See also Conoil Plc v Vitol SA (2018) 9 NWLR 463, 489 (Nweze JSC), 500-501 (Okoro JSC), 502 (Eko JSC).

[21]A.B.U. v VTLS (2020) LPELR-52142 (CA). See also Conoil Plc v Vitol SA (2018 ) 9 NWLR 463, 489 (Nweze JSC); Sonnar (Nig) Ltd v Partenreedri MS Norwind (1987) 4 NWLR 520, 544-5 (Oputa JSC); LAC v AAN Ltd (2006) 2 NWLR 49, 81 (Ogunbiyi JCA as she then was); Ventujol v Compagnie Française De L’Afrique Occidentale (1949) 19 NLR 32; Allied Trading Company Ltd v China Ocean Shipping Line (1980) (1) ALR Comm 146.

[22]Sonnar (Nig) Ltd v Norwind (1987) 4 NWLR 520; Nika Fishing Company Ltd v Lavina Corporation (2008) 16 NWLR 509.

Save the date: University of Bonn/HCCH Conference “The HCCH 2019 Judgments Convention: Cornerstones – Prospects – Outlook”, 9 and 10 September 2022, Bonn University, Germany

/in /by

Dear Friends and Colleagues,

During the ongoing pandemic, the University of Bonn has remained very careful and did not allow on-site events of a larger scale so far. We have therefore once again made the decision to reschedule our Conference (originally planned for the 25/26 September 2020, and postponed to 13/14 September 2021) now to Friday and Saturday, 9 and 10 September 2022. Let’s hope the best that the pandemic will have withdrawn to an extent that allows our conference taking place as now planned.

As there are reasonable expectations for the HCCH 2019 Judgments Convention to enter into force by the end of 2022 or early 2023, we are confident – especially with a view to the latest Proposal of the European Commission – that we will experience an even more focused and rewarding discussion of our topic.

The list of speakers includes internationally leading scholars, practitioners and experts from the most excellent Universities, the Hague Conference on Private International Law (HCCH), the United Nations Commission on International Trade Law (UNCITRAL), and the European Commission (DG Trade, DG Justice). The Conference is co-hosted by the Permanent Bureau of the HCCH.

The Organizers kindly ask participants to contribute with EUR 200.- to the costs of the event and with EUR 50.- to the conference dinner, should they wish to participate. There is a limited capacity for young scholars to contribute with EUR 100.- to the conference (the costs for the dinner remain unchanged).

Please register with sekretariat.weller@jura.uni-bonn.de. Clearly indicate whether you want to benefit from the young scholars’ reduction of the conference fees and whether you want to participate in the conference dinner. You will receive an invoice for the respective conference fee and, if applicable, for the conference dinner. Please make sure that we receive your payment at least two weeks in advance. After receiving your payment we will send out a confirmation of your registration. This confirmation will allow you to access the conference hall and the conference dinner.

Please note: Access will only be granted if you are fully vaccinated against Covid-19. Please confirm in your registration that you are, and attach an e-copy of your vaccination document. Please follow further instructions on site, e.g. prepare for producing a current negative test, if required by University or State regulation at that moment. We will keep you updated. Thank you for your cooperation.

Further information: https://www.jura.uni-bonn.de/professur-prof-dr-weller/the-hcch-2019-judgments-convention-cornerstones-prospects-outlook-conference-on-9-and-10-september-2022

Dates:                        Friday, 9 September 2022, and Saturday, 10 September 2022

Venue:                      Universitätsclub Bonn, Konviktstraße 9, D – 53113 Bonn

Registration:          sekretariat.weller@jura.uni-bonn.de

 

Registration fee:                                                     € 200.-

Young Scholars rate (limited capacity):        € 100.-

Dinner:                                                                       €   50.-

  

Programme

 Friday, 9 September 2022

 

8.30 a.m.      Registration

9.00 a.m.      Welcome notes

Prof Dr Wulf-Henning Roth, Director of the Zentrum für Europäisches Wirtschaftsrecht, Rheinische Friedrich-Wilhelms-Universität Bonn, Germany

Dr Christophe Bernasconi, Secretary General of the HCCH

Part I: Cornerstones

  1. Scope of application

Prof Dr Xandra Kramer, Erasmus University Rotterdam, Utrecht University, Netherlands

  1. Judgments, Recognition, Enforcement

Prof Dr Wolfgang Hau, Ludwig-Maximilians-Universität Munich, Germany

  1. Indirect jurisdiction

Prof Dr Pietro Franzina, Catholic University of Milan, Italy

  1. Grounds for refusal

Dr Marcos Dotta Salgueiro, Adj. Professor of Private International Law, Law Faculty, UR, Uruguay; Director of International Law Affairs, Ministry of Foreign Affairs, Uruguay

  1. Trust management: Establishment of relations between Contracting States

Dr João Ribeiro-Bidaoui, First Secretary, HCCH / Dr Cristina Mariottini, Senior Research Fellow at the Max Planck Institute for International, European and Regulatory Law Luxemburg

 

1.00 p.m.                Lunch Break

 

Part II:  Prospects for the World

  1. The HCCH System for choice of court agreements: Relationship of the HCCH Judgments Convention 2019 to the HCCH 2005 Convention on Choice of Court Agreements

Prof Dr Paul Beaumont, University of Stirling, United Kingdom

  1. The HCCH System and the Brussels System: Relations to the Brussels and Lugano Regime

Prof Dr Marie-Élodie Ancel, Université Paris-Est Créteil, France

  1. European Union

Dr Andreas Stein, Head of Unit, DG JUST – A1 “Civil Justice”, European Commission

  1. Canada, USA

Professor Linda J. Silberman, Clarence D. Ashley Professor of Law, Co-Director, Center for Transnational Litigation, Arbitration, and Commercial Law, New York University School of Law, USA / Professor Geneviève Saumier, Peter M. Laing Q.C. Professor of Law, McGill Faculty of Law, Canada

  1. Southeast European Neighbouring and EU Candidate Countries

Prof Dr Ilija Rumenov, Associate Professor at Ss. Cyril and Methodius University, Skopje, Macedonia

8.00 p.m.      Conference Dinner (€ 50.-)

  

Saturday, 10 September 2022

 

9.00 a.m.      Part II continued: Prospects for the World

  1. Middle East and North Africa (including Gulf Cooperation Council)

Prof Dr Beligh Elbalti, Associate Professor at the Graduate School of Law and Politics at Osaka University, Japan

  1. Sub-Saharan Africa (including Commonwealth of Nations)

Prof Dr Abubakri Yekini, University of Manchester, United Kingdom / Prof Dr Chukwuma Okoli, Postdoctoral Researcher in Private International Law at the T.M.C. Asser Institute, Netherlands

  1. Southern Common Market (MERCOSUR)

Prof Dr Verónica Ruiz Abou-Nigm, Director of Internationalisation, Senior Lecturer in International Private Law, School of Law, University of Edinburgh, United Kingdom

  1. Association of Southeast Asian Nations (ASEAN)

Prof Dr Adeline Chong, Associate Professor of Law, Yong Pung How School of Law, Singapore Management University, Singapore

  1. China (including Belt and Road Initiative)

Prof Dr Zheng (Sophia) Tang, University of Newcastle, United Kingdom

1.00 p.m.               Lunch Break

 

Part III: Outlook

  1. Lessons from the Genesis of the Judgments Project

Dr Ning Zhao, Senior Legal Officer, HCCH

  1. International Commercial Arbitration and Judicial Cooperation in civil matters: Towards an Integrated Approach

José Angelo Estrella-Faria, Principal Legal Officer and Head, Legislative Branch, International Trade Law Division, Office of Legal Affairs, United Nations; Former Secretary General of UNIDROIT

  1. General Synthesis and Future Perspectives

Hans van Loon, Former Secretary General of the HCCH

Please also consult our Repository HCCH 2019 Judgments Convention for the latest publications and materials on our subject-matter.

News

Australasian Association of Private International Law

/in /by

(Posted on behalf of Professor Reid Mortensen) 

We are pleased to let you know about the establishment of the Australasian Association of Private International Law (‘AAPrIL’).

AAPrIL is being established to promote understanding of private international law in Australia, Aotearoa New Zealand, and the nations of the Pacific Islands.  By ‘private international law’ (or ‘conflict of laws’), we mean the body of law that deals with cross-border elements in civil litigation and practice, whether arising internationally or, in the case of Australia, intra-nationally.

To make AAPrIL a reality, we need your help.  If you have an interest in Australasian private international law, please join us by attending the first general meeting of members of AAPrIL, which will be held online on Thursday 11 July 2024.  The meeting is necessary to establish AAPrIL, approve a Constitution, and elect AAPrIL’s first officers.

The beginnings of our Association

The proposal to establish AAPrIL comes from an organising group* of Australian and New Zealand scholars and practitioners who have been working together in private international law for a long period.

We believe that there is a need for a permanent regional organisation to provide support for regular events and conferences on private international law, and to help coordinate, manage and publicise them.  Our vision for AAPrIL is that it will:

  • Regularly distribute a newsletter on recent decisions, legislative developments and publications, and on hot topics and upcoming events on private international law in Australasia.
  • Organise proposals and submissions for law reform in private international law.
  • Promote the study of private international law in universities.
  • Provide a forum for the exchange of information and opinions, debate and scholarship on private international law in Australasia.
  • Connect with other private international law associations worldwide.

The proposed Association already has a website and a LinkedIn page.

To our delight, the Honourable Dr Andrew Bell, Chief Justice of New South Wales, has agreed to serve as patron of the Association.  His Honour is well-known as co-author of Nygh’s Conflict of Laws in Australia, and the author of many other publications on private international law.  Before being appointed to judicial office, he had a significant Australia-wide practice in cross-border litigation and international arbitration.

How do you join?

You can join the Australasian Association of Private International Law by signing up on the Membership page of AAPrIL’s website.

There is initially no membership fee to join.  At the meeting to establish AAPrIL, there will be a proposal to set membership fees for 2024-2025 at:

Individual members: AUD 100

Corporate members: AUD 300

Student members: AUD 20

However, membership fees for 2024-2025 will not be requested until after the first general meeting.

What will happen at the general meeting on Thursday 11 July?

Those who join as members by 18 June 2024 will be sent a notice of meeting for the general meeting on 11 July 2024. The agenda will include proposed resolutions:

  • To establish the Australasian Association of Private International Law.
  • To adopt the Constitution of the Association. If members have any questions about the proposed Constitution before the meeting, could you please direct them to me: mortensen@unisq.edu.au.†
  • To appoint the President, Treasurer and Secretary of the Association, and potentially an Australian Vice-President, a New Zealand Vice-President and Pacific Islands Vice-President. If any member wishes to propose another member for one of these offices, please email your nomination to me:  mortensen@unisq.edu.au.†
  • To set membership fees for the financial year 2024-2025.

The organising group will also present plans for the activities of the Association.

We are looking forward to this exciting development for those of us who are rightly fascinated by private international law.  We hope you will join us!

Best wishes

Professor Reid Mortensen

On behalf of the AAPrIL interim executive

*******

* The organising group comprises Dr Michael Douglas (Bennett, Perth), Professor Richard Garnett (University of Melbourne), Associate Professor Maria Hook (University of Otago), Professor Mary Keyes (Griffith University), Professor Reid Mortensen (University of Southern Queensland), Ms Cara North (Corrs Chambers Westgarth, Melbourne) and Mr Jack Wass (Stout Street Chambers, Wellington).

† I will be on leave from 3-14 June 2024, but will answer any enquiries that are made in that period as soon as possible afterwards.

European Legal Forum 1/2024: Comments on the Proposal for a Council Regulation on Parenthood

/in /by

The latest issue (1/2024) of The European Legal Forum features a series of comments on the Proposal for a Council Regulation on Parenthood by Ilaria Queirolo on The Proposed EU Regulation on Parenthood: A critical Overview of the Rules on Jurisdiction; Francesco Pesce on, The Law Applicable to Parenthood in the European Commission’s Regulation Proposal; Stefano Dominelli on Recognition of Decisions and Acceptance of Authentic Instruments in Matters of Parenthood under the Commission’s 2022 Proposal; Francesca Maoli on The European Certificate of Parenthood in the European Commission’s Regulation Proposal: on the ‘Legacy’ of the European Certificate of Succession and Open Issues, and Laura Carpaneto on The Hague Conference of Private International Law’s “parentage/surrogacy” project.

https://www.unalex.eu/Images/eulf_title_image.jpg

The commentary is a deliverable of the Project Fluidity in family structures. International and EU law challenges on parentage matters, financed by the Ministry of University and Research of the Italian Republic and by the European Union – Next Generation EU (prot. n. 2022FR5NNJ – PRIN 2022). The Consortium includes: the University of Pavia as coordinator and the universities of Milano, Genova, and Cagliari.

All publications of the project are available in Open Access here.

ZEuP – Zeitschrift für Europäisches Privatrecht 2/2024

/in /by

Issue 2/2024 of ZEuP – Zeitschrift für Europäisches Privatrecht has just been published. It includes contributions on EU private law, comparative law, legal history, uniform law, and private international law. The full table of content can be accessed here.

The following contributions might be of particular interest for the readers of this blog:

  • Auf dem Weg zu einer europäischen Abstammungsverordnung? – Licht und Schatten im Vorschlag der Europäischen Kommission
    Editorial by Christine Budzikiewicz on the Commission Proposal for a EU Regulation on Parenthood and the Creation of a European Certificate of Parenthood
  • Europäischer Emissionsrechtehandel – Eine Momentaufnahme nach der Reform durch das „Fit for 55“-Paket
    Sebastian Steuer on European emissions trading: Carbon pricing according to the “cap and trade” principle plays a key role in European climate policy. As part of the “Fit for 55” package, the Emissions Trading Directive has, once again, undergone comprehensive revisions and has been substantially toughened in certain respects. This article gives a basic overview of the current state of European emissions trading after the recent changes. It explores the chief components of the Emissions Trading Directive, highlights the economic differences between quantity- and price-based regulation, and discusses the interplay of the EU emissions trading system with international and German climate policy.
  • Microplastics Litigation: eine rechtsvergleichende Orientierung
    Stephanie Nitsch on Microplastics Litigation: The present paper provides a comparative law analysis of liability for microplastics pollution with a special focus on product liability as well as liability due to deliberate or negligent breaches of statutory duties or duties of care.
  • Bundesgerichtshof, 18 April 2023, II ZR 184/21
    Susanne Zwirlein-Forschner     discusses a decision of the German Federal Court of Justice on the law applicable to liability due to economically destructive actions and to the assignment of claims.

Upcoming Events