Private International Law

CFs - Domicile in the EU law

---Domicile in EU Regulations concerning jurisdiction is not to be confused with the common law notion of domicile. ---Art 62 of the Brussels I Recast Regulation: 'In order to determine whether a party is domiciled in the Member State whose courts are seised of a matter, the court shall apply its internal law.' ---CJJO (civil juridiction and judgment order) 2001, S.9: 'An individual is domiciled in the United Kingdom if and only if - (a) he is resident in the United Kingdom; and (b) the nature and circumstances of his residence indicate that he has a ***substantial connection with the United Kingdom.' Definition MORE similar to Habitual Residence definition (rather than domicile in common law) ---residence in last 3 months = substantial connection

CFs - Habitual Residence (Common law) - advantages

---Habitual residence is based on fact. ---Domicile was developed in the context of a colonial mind-set where people were inclined to return to their homeland after being stationed abroad. ----Habitual residence is more attuned to the requirements of mobility in a modern context.

CFs - Habitual Residence - what is an appreciable period?

---The courts have reached different conclusions in different cases. However, one cannot acquire a habitual residence instantly. ---The courts have always held that a PERIOD OF ONE YEAR would suffice to establish residence (even if no intention to stay long term). ----The shorter the residence the ***more important the intention and vice versa. e.g. ---Live in the country for a period which shows that the residence has become "habitual" ---One cannot acquire habitual residence in one day upon arriving in the country (Nessa 1999) ----One year residence is usually enough (question of fact) (Re A) ***If settled intention is clear, the period required can be shorter (V v B 1991- 3 months with settled intention)

PIL - 3 main aspects/q's - order of answering

1) Jurisdiction: The first question to be determined in a case ----Which court has jurisdiction to hear the case? 2) Applicable law: If the court decides that it has jurisdiction, the second question to be determined is the applicable law. ----Which law will the court apply? ***PIL does not resolve the substance of the dispute. It does not determine the rights and obligations of the parties. (courts will typically find experts in the foreign law and ask q's) 3) Recognition and enforcement: After a dispute has been heard and decided in a court, the recognition and enforcement question may arise. (may be no need) Will/can a judgment given by the courts of State A be recognised or enforced in another jurisdiction? e.g. custody - recognize divorce in both Turkey and USA Accident - one party sued damages, italy court heard case and thought one should pay damages BUT defendant has NO assets in Italy - lives in Scotland. Does not want to comply, ask scots courts to enforce although if he pays straight out then no need)

CFs - Habitual residence in the Brussels IIa Regulations (parental responsibility)

2 CJEU decision concerning the habitual residence of children: --Case C-523/07 Re A --Case C-497/10 Mercredi v Chaffe Both = "A child's HR must reflect some degree of social integration by the child in a social and family environment."

PIL family - Hague 1980 - wrongfulness of a removal or retention

Article 3 --The removal/retention of the child MUST constitutes a breach of custody rights --The applicant was actually exercising his/her custody rights at the time of the abduction Article 4 ---Child under the age of 16 ---Child habitually resident in a contracting state - taken to or retained in another contracting state. Burden of proof - left behind parent

CFs - Domicile of Origin overview

Ascribed to every person by law at birth. ---Never totally lost but goes into abeyance if domicile of choice is established, until it is revived (Udny v Udny). Prior to the Family Law (Scotland) Act 2006, the rules for ascertaining the domicile of origin in Scotland were: ---a legitimate child took his/her father's domicile at the time of birth (Udny v Udny). ---an illegitimate child took the domicile of his/her mother at the time of birth (Udny v Udny). ---a child legitimated by subsequent marriage took the father's domicile from the date of the marriage (Smijth v Smijth) (The place of birth was not necessarily relevant. )

Jurisdiction in Brussels I - choice of court - general rule

Case C-543/10 Refcomp SpA v Axa Corporate Solutions Assurance SA (manufacturer makes goods sold on - no exceptional criteria - maker<-->buyer, no further transfer of choice of court clause)

The conflict process - Applicable law - Some methodological issues/concepts 5th - Mandatory Rules

Mandatory rules concern matters which are crucial for a country for safeguarding its public interests, such as its political, social or economic organisation. -Mandatory rules: --Domestic mandatory rules: They cannot be derogated from by agreement. --Overriding mandatory rules (international mandatory rules): They cannot be derogated from even by the application of a foreign law. They are applicable to any situation falling within their scope, irrespective of the law otherwise applicable. ------Eg rights of employees; consumer protection; trade embargos Overriding mandatory rules may belong to the forum or a third country (no one answer for this)

Jurisdiction in Brussels I - choice of court - "such jurisdiction shall be exclusive unless the parties agreed otherwise"

Perella (english case) 2016 ---clause said 'parties agreed that clause be non-exclusive' Can do that - presumption rebutted A jurisdiction clause in a derivatives contract was exclusive notwithstanding the absence of express wording that it was intended to be so ----In Global Maritime Investments Cyprus Limited v O.W. Supply & Trading A/S

CFs - Habitual residence in the Brussels IIa Regulations - Re A

Re A (2005 mother, 3 children + children's step father moved Sweden to Finland - lived in camper with relatives and children did not attend school. Oct 2015 - children taken into care and placed in childcare unit under Finnish law on the ground that they had been abandoned. ---On application by mother for the care order to be overturned, case refereed to CJEU HELD - Habitual residence' under Article 8(1) of the Brussels IIa Regulation corresponded to the place which ***reflected some degree of integration by the child in a social and family environment. In particular, the following facts should be taken into consideration: ---the duration, regularity, conditions and reasons for the stay on the territory of a Member State and the family's move to that State, ---the child's nationality, ---the place and conditions of attendance at school, --linguistic knowledge, ---and the family and social relationships of the child in that State. It is for the **national court to establish the habitual residence of the child, taking account of all circumstances specific to each individual case

CFs - HR - who carries the burden of proving a change?

The party alleging a change must prove that the change has occurred (Re R (Wardship: Child Abduction) However, the burden is less onerous than proving a change of domicile.

PIL of family - Hague 1980 - aims of convention

To protect children from the harmful effects of cross-border abductions (Art 1(a) + Preamble) To ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.

PIL family - Hague 1980 - HR of child - UK approach

Use CJEU case law + Supreme court case-law

CFs - Domicile of Choice - residence + Intent requirement

"Clearly there must be actual residence, and, in the absence of residence, no amount of intention will suffice." (Willar v Willar) 'Prolonged actual residence is an important item of evidence of ... volition, but it ***must be supplemented by other facts and circumstances indicative of intention. The residence must answer a qualitative as well as a quantitative test." ---Ramsay v Liverpool Royal Infirmary - George Bowie, born in Glasgow with Scottish domicile of origin. In 1892, he stopped working and moved to Liverpool. He boasted that he was a Glasgow man and read Scottish newspapers, but never returned to Scotland. ---Despite living in England for 37 years, he was found not to have acquired an English domicile. Acquisition of a domicile of choice is "a serious matter ***not to be lightly inferred from slight indications or casual words." (Agulian v Cyganik) ---Cyganik lived and worked in England for 43 years but maintained domicile in Cyprus.

Jurisdiction in Brussels I - choice of court - domicile

"regardless of domicile" - change in Recast, if chosen court in EU Art 25 applies even if the parties aren't from EU (e.g. USA and Australia) ---part of hague convention but not EU then HC applies (e.g. singapore/mexico)

CFs - Domicile (Common law) - what is it?

'Domicile' is the connecting factor that has traditionally been used to govern the personal issues in common law ---'Domicile' refers to a person's permanent home. ---A person is domiciled in a territory having its own legal system. aka no such thing as 'British domicile' (Scotland/ England and Wales, New York) Domicile is a personal status, not an administrative one. There is no paper evidence of a person's status. A PERSON'S PERMANENT HOME ---It is a rigid connecting factor (difficult to supersede domicile of origin) --The Family Law (Scotland) Act 2006 removes some of the anomalies and anachronisms in the law, but many remain.

PIL of family law - key hague conventions

*****The 1980 Convention on the Civil Aspects of International Child Abduction ('the 1980 Hague Abduction Convention') The 1993 Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption ('the 1993 Hague Adoption Convention') - not examinable The 2007 Convention on International Recovery of Child Support and Other Forms of Family Maintenance ('the 2007 Hague Maintenance Convention') and the 2007 Hague Protocol on the Law Applicable to Maintenance Obligations ('the 2007 Hague Maintenance Protocol') The 1996 Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children ('the 1996 Hague Child Protection Convention') -- important but not in course

PIL of family law - EU regulations

***Council Regulation (EC) 2201/2003 Concerning Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters and the Matters of Parental Responsibility, Repealing Regulation (EC) No 1347/2000 ('the Brussels IIA, Brussels IIbis, or Brussels II Revised Regulation') Regulation (EC) 4/2009 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations ('the Maintenance Regulation') Council Regulation (EU) 1259/2010 of 20 December 2010 implementing enhanced cooperation in the area of the law applicable to divorce and legal separation ('the Rome III Regulation') - not UK Council Regulation (EU) 1103/2016 + Council Regulation (EU) 1104/2016 ---not in UK

PIL family - Hague 1980 - Inter-relationship between removal and retention

- Re H. and Re S. and Another (Minors) (Abduction: Custody Rights) [1991] (Mother awarded custody, father not. Injunction restrained both removal by Ontario Supreme Court, ---Father did not return --3 years later petioned their return by mother in England --Mum submit wronfully detained retention contuining state of affairs HELD - submission rejected H O L - **removal and retention are single events and mutually exclusive concepts. - Findlay v Findlay 1994 S.L.T. 709. --two concepts distinct. H + W separated 4 months, decided father live with child in Scotland. Priory to expiry the wife petitioned for custody proceedings in Canada, child wrongfully removed Held - trial not justified on ground of wrongful retention since mother plead removal

CFs - Habitual Residence - Re J

----"There is a significant difference between a person ***ceasing to be habitually resident in country A, and his subsequently ***becoming resident in country B. ----A person may cease to be habitually resident in country A in a SINGLE DAY if he or she leaves it with a settled INTENTION not to return but to take up long-term residence in country B instead. Such a person CANNOT, however, become habitually resident in country B in a single day. An appreciable period of time and a settled intention will be necessary to enable him or her to become so." at 578-579 From the above quoted text one can deduce that: ---a habitual residence may be lost but not gained in a single day; ---a person may therefore have no habitual residence; ---there are two limbs to the establishment of habitual residence: (i) an appreciable period of time, and (ii) a settled intention.

Jurisdiction in Brussels I - choice of court - "court or the courts of a member state are to have jurisdiction to settle any disputes"

---Country - German court ---City - Paris court ---Specific - Commercial court in London ---Country area - Scottish court (need to be competent)

CFs - Habitual Residence (Common law) - origins

---Habitual residence was developed in the Hague Conference on Private International Law, mainly as a compromise between civil law's nationality and common law's domicile. ---The traditional concepts of nationality and domicile can lead to unrealistic, unpredictable and inappropriate governing laws and jurisdictions. ---Habitual residence is the connecting factor employed in modern PIL rules: Hague Conventions -EU PIL- Habitual residence has been adopted as connecting factor for divorce, annulment and personal separation in EU PIL instruments. -UK- Parliament has increasingly adopted the concept in statutes that have no international or regional connection

CFs - Personal CFs - types

---Nationality: traditionally used in civil law systems ---Domicile: traditionally used in common law systems (possibly due to the existence of various legal systems within individual 'nations') ---Habitual residence: preferred as primary personal connecting factor in the Hague Conventions and in the EU PIL Regulations. --Same connecting factors may mean different things in different jurisdictions. ----The court ascertains the meaning of the connecting factor pursuant to its own law.

The conflict process - Jurisdiction - jurisdictional bases will necessarily have one of 3 statuses...

---Required (obligatory conduct or factors; the court must exercise jurisdiction) Eg: jurisdiction in proceedings concerning rights in rem in immovable property ---Excluded (impermissible conduct or factors; jurisdiction is excluded or a court may decline to exercise jurisdiction). ---Permitted (optional conduct or factors; the court may decide to exercise jurisdiction)

Jurisdiction in civil and commercial matters (contract and delict) - Scotland history + 2Q's to ask court

---Rules of jurisdiction in Scotland have always been very different from those in England ---Doctrine of forum non conveniens - created it, may have jurisdiction but the court may not exercise it -- picked up in the USA 40's Jurisdiction - rules in any legal system in a country determined if the courts can hear a dispute? ---second q in Scotland - appropriate to exercise jurisdiction we have? Mitigate rules in a particular case, better forum for case rather than Scotland HOWEVER - civil world - ONLY ASK 1ST Q Scottish approach - more civilian than common approach

CFs - Habitual Residence - more than one?

---Since habitual residence is based on fact, it is possible to have 2> habitual residences. Rationale: Habitual residence is generally applied to determine jurisdiction rather than the applicable law. ---The court will simply consider whether the propositus (the person from whom a line of descent is traced) is habitually resident in its jurisdiction. The fact that he or she is also habitually resident somewhere else should not matter. Where it does the court could apply the rules of forum non conveniens. (power that allows courts to dismiss a case where another court, or forum, is much better suited to hear the case) HOWEVER, dual habitual residence is ***not acceptable in child abduction cases. Rationale: to ensure the applicability of the 1980 Hague Abduction Convention by avoiding the finding that the child is habitually resident in both the country of origin and the country of refuge

CFs - Habitual Residence - of dependence? + HR of children

---Theoretically, the nature of habitual residence precludes the possibility of habitual residence of dependence. ---However, young children CANNOT form the necessary intention to acquire a residence; their residence must therefore be established with ***reference to that of their legal custodian (Beaumont and McEleavy 1999: 91). ----- ---Parent centred approach - child's HR depends on the parent who exercises lawful custody ---Parents live together, child lives with them - HR of child is in that country. Joint responsibility means neither parent can change child's HR unilaterally, breaching the other's right ---Parents live apart - HR of child is where ***principal carer is habitually resident (Re M 1993) ---Residence in a place is ESSENTIAL for child to establish HR there (W v H 2002; D v D 2002)

The conflict process - Applicable law (2nd stage) overall

--Which law will the court apply to the substance of the dispute? --The aim is to determine the legal system that will govern the substantive rights and obligations of the parties. --The court will identify the applicable law pursuant to its choice of law rules. Examples of ***choice of law rules from different PIL Acts: -------A contract for the sale of goods is governed by the law of the country where the seller has his habitual residence. -------The law applicable to a non-contractual obligation arising out of a tort/delict is the law of the country in which the damage occurs. -------The formal validity of a marriage is governed by the law of the country in which the marriage was celebrated. ****Some methodological issues and concepts: characterisation; the incidental question; renvoi; public policy; mandatory rules

CFs - Domicile (Common law) - 3 types of domicile (all been criticized as some point) + general principles

--domicile of origin (birth) --domicile of choice (acquired by person residing in a country planning to live in) --domicile of dependence. (Persons who do not have the capacity to acquire a domicile independently of another person) General principles as regards 'domicile' in common law: 1) No person can be without domicile 2) No one can have more than one domicile at a given time. These two are known as: Principle of unity: Person can have only one domicile at a given time and can never be without one. Purpose - establish a definite legal system to govern people's personal rights and obligations

PIL - 3 main aspects (why determine q's - each country haw their own court system aka no one single body of law/court for the whol world to resolve disputes --How to determine q's - according to PIL rules which differ from one legal system to another unless harmonized)

1) Jurisdiction: Which court has jurisdiction to hear the case? 2) Applicable law: Which legal system should determine the merits of the dispute? 3) Recognition and enforcement of foreign judgments: Will/can a judgment given by the courts of State A be recognised or enforced in State B? PIL provides answer to all these Q's - they are dealt with seperatly and they are dealt with according to different rules Examples in notes if you want more

Special jurisdiction in Contract - Art 63 Brussels 1 Regulation recast - legal persons domicile (For legal persons the Brussels I Regulation created a uniform definition of domicile in Article 60 and this has been retained in Article 63 of the Recast.)

1. For the purposes of this Regulation, a company or other legal person or association of natural or legal persons is domiciled at the place where it has its: (a) statutory seat, or (b) central administration, or (c) principal place of business. small companies, a+b maybe the same place larger - may register place of low tax, central admin in another + manufacturer in another place cheaper like China 63 - sue them in any place, cannot run and hide Young v Anglo American South Africa Ltd (No cases in COJ hence - Appeal case - good judgement to follow para 43 - what central admin means? Place where essential decision taken by company through its organs for that companies operations + entrepenurial decisions. --recognize strategic decisions taken different place where strategy is implemented Held - broad decisions in London INFLUENCED company in South africa decision making - that actually happend there by the board in South Africa)

The conflict process - 3 elements

1. Jurisdiction 2. Applicable law --Characterization (classification/qualification) -The incidental question (preliminary q) -Renvoi (he process by which a court adopts the rules of a foreign jurisdiction with respect to any conflict of laws that arises) -Public policy -Mandatory rules 3. Recognition and enforcement of Foreign Judgements

Name of subject

3 names used: -Conflict of laws -Private international law -International Private law (not used in England) ---In Scotland all are used interchangeably 'Conflict' (in terms of first one) - conflict as to which court will hear the case and which law will apply to the case 'Private' + 'international' (in terms of other two meanings) - P = PIL deals with private law matters between private parties I = refers to the EXISTENCE of a foreign element

Special jurisdiction in Contract - Art 7(1) Recast - 7 a - matter of contract? (used to be 5(1))

7(1) a is the original 5(1) of Brussels Convention ---may be sued in matters relating to a contract in the courts for the place of performance of the obligation in Q (a) in matters relating to a contract; in the courts for the place of performance of the obligation in question; New provision - b + c What matter relating to contract? Case C-47/14 Holterman Ferho Exploitatie BV and others (para 52-53 - "...it must be stated that, in accordance with settled case-law, the concept of 'matters relating to contract', referred to in [Art 7(1)], presupposes the existence of an ***obligation freely assumed by one party towards another ---Mr Spies and Holterman ***freely assumed mutual obligations in that ----Mr Spies von Büllesheim chose to manage and administer that company, and ----the company undertook to remunerate him for those services, ---so that their relationship may be ***regarded as being contractual in nature.."

Special jurisdiction in Contract - Art 7(1) Recast - 7 b + c - " the place in a MS.." + "Where under the contract, the goods..."

7(1)(b) does not apply if country not a MS, say Brazil place of delivery. --**7(1)(c) if subparagraph (b) does not apply then subparagraph (a) applies But place of payment is in MS, say portugal, hence use a. --- "Where under the contract, the goods..." --court confirmed that the parties can in contract make clear where goods delivered/services be provided (LOOK IF CONTRACT SAYS) ---only use default rule if contract unclear on point Case C-533/07 Falco (Good case - COJ - Intellectual property licensing contract is not a provision of services so use s7(1)(a). para 42-43 - compromised straight b forward contract/service - not, then should be left to old rule para 29-31 -- No activity when you grant IP licensing just say you are allowed to use IP, no positive activity just permission in exchange of money - not service) Case C-204/08 Rehder v Air Baltic Corporation (Air transport contract, issue where could passanger sue airline Held - was a service contract and place of provision of service ***is both the place you take off and where you land. a not apply def J to sue. --so party choice to sue in either place b - not want b to become expansive!) Case C-381/08 Car Trim GmbH v Key Safety Systems Srl (place of delivery of goods first found in contract. If not clear in terms where goods delivered, default rule para 60 - place where item **physical transferred at final destination. --40-42 -- where materials supplied by purchaser to manufacturer - all supplied by purchaser could indicate it as a provision of service, if not done by purchaser then a contract of sale of goods) seller responsible of quality of goods - sale of goods seller only comply with purchaser - provision of services

Jurisdiction in Brussels I - choice of court - non-exclusive jurisdiction clause vs exclusive clause

A jurisdiction clause therefore states that the parties have agreed to the courts of a named country taking jurisdiction over (in other words, having the right to hear) any disputes that may arise. ----Usually a jurisdiction clause will provide for either "exclusive" or "non-exclusive" jurisdiction. The interpretation of these terms may vary across legal systems, but in broad terms ***"exclusive jurisdiction" means that only the specified courts will have jurisdiction to hear disputes; and ***"non-exclusive jurisdiction" means those courts can hear disputes but the parties are not prevented from litigating in other courts as well or instead if they think it is appropriate to do so.

Co- Defendants Art 8(1) Recast - conflicting cases

A person domiciled in a Member State may also be sued: 1. where he is one of a number of defendant, in the courts for the place where any one of them is domiciled, provided the claims are ***so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings. Case-103/05 Reisch Montage AG (2006) ---para 32 - this provision not allow P against other Ds - can't use for sole purpose to remove from one domicile to another Case C-145/10 Painer (2011) - agreed Reisch para 28 Case-98/06 Freeport PLC v Arnoldsson (2007) - disagreed para 34 Case C-352/13 Cartel Damage Claims v Akzo (2013) - disagreed para 28 - court day opposite, not need to demonstrate sole purpose

Special jurisdiction in Delict - 7(2) Brussels recast overview + harmful event

A person domiciled in a Member State may, in another Member State, be sued: 2. In matters relating to tort, delict or quasi-delict, in the courts for ***the place where the harmful event occurred or may occur. (may occur - added later) Case 21/76 Bier ('Mines de Potasse d'Alsace') (company in france allegedly polluted the Rhine with bad effect on downstream operator in Holland. Damage. Dutch company wanted to sue other company. Held - COJ gave option to pursuer commencement of action - para 19 - **place of event where it arose (france) or place where damage occurred (holland)) ---wider choice than contract - contract have choice of court clause to clarify place or terms where place of performance = J Delict -- ***happens to people no choice to regulate it in advance - give victim choice but rule can be used both ways - tortfeasor can get negative declaration in either (choice to wrongdoer)

CFs - Habitual Residence - what is a settled intention? Must intention be to settle permanently?

A person must have a 'settled purpose' or 'settled intention' - the intention of remaining in a jurisdiction 'as part of the settled order of [a person's] life for the time being' (Re B (Abduction) (No 2) The intention must be ****externalised through factual evidence - a secret intention is not enough (Beaumont and McEleavy 1999: 102-103). ------ A "settled intention" or "settled purpose" is one which is ***not temporary' (Beaumont and McEleavy 1999: 102). ---A person may acquire habitual residence where he or she has settled in a country for a ***specified purpose such as obtaining a degree or taking up a fixed-term business contract. ----In Kapur v Kapur the propositus was held to be habitually resident in England when he was living there for the purposes of studying for the English Bar Exam

Special jurisdiction in Contract - Art 7(1) Recast - 7 b + c - background + "for purpose of this provision" + "Unless otherwise agreed"

Added by lugano + Brussels Convention - want lugano provisions to be similar to Brussels regulation - agreed in intergovernmental agreements of swiss/norweigan/Icelandic and MSs b. SOG - place - delivery of goods or service provided in place - place matters to determine J (b) for the purpose of this provision and unless otherwise agreed, the place of performance of the obligation in question shall be: - in the case of the sale of goods, the place in a Member State where, under the contract, the goods were delivered or should have been delivered. - in the case of the provision of services, the place in a Member State where, under the contract, the services were provided or should have been provided. "for purpose of this provision" ---change characteristic performance for here not broader impact "Unless otherwise agreed" ---introduced last minute, anxious to ensure if parties clear wanted to have J in contract on different performance obligation, should be able to say in contract ***e.g. place of payment J rather than place of delivery (should have connection with contract)

CFs - Habitual Residence (Common law) - Domicile pros/cons + Nationality pros/cons

Advantages: ---Suitable for countries which have different territorial units each having its own legal system. ---A person can only have one domicile at any given time and can never be without one Disadvantages: ---Inflexible (eg revival of domicile of origin where person has no real connection to that State). Nationality as a connecting factor: ---Advantages: -Relatively easy to understand as a concept; -Normally easy to ascertain ---Disadvantages: -A person's nationality may have no connection with the country where he lives (this often leads to inappropriate results) -Not suitable to be applied to persons with more than one nationality or with no nationality -Not suitable for countries which have different territorial units each having its own legal system (eg the UK, the US)

The conflict process - Jurisdiction (1st stage) - overall (appropriateness)

After an action is initiated by the claimant, the court will determine, pursuant to its jurisdiction rules, whether it has jurisdiction to hear the case. ---The aim of jurisdictional rules is to determine an appropriate venue (forum). 'Appropriateness'? --a requisite or substantial link between the parties and the court or between the action and court, eg: ---the parties may be linked to the court by the domicile of the defendant ---the dispute may be connected to the court because the place where the contractual obligation is performed, is where the court is. -Varies in different areas of the law ---Jurisdiction rules are drafted by taking account of several factors; e.g. legal certainty and predictability, convenience, ease of proof.

PIL of family - Hague 1980 - Underlying philosophy

Art 12(1) + (2) Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith. The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment. Return proceedings ≠ Custody proceedings ⇨ no detailed investigation into the best interests of the child. Return order ≠ Decision on the merits on any custody issue (Art 19) : Designed to restore the pre-abduction status quo ⇨ custody/access to be determined in the most appropriate jurisdiction (i.e. the country of the habitual residence of the child).

PIL family - Hague 1980 - removal and retention - meaning -- SUMMARY RETURN

Art 3: cross-border parental abduction can take two forms: wrongful removal or wrongful retention Removal occurs when a child, which has previously been in the state of its habitual residence, is taken across the border of that state. Retention occurs where a child which has previously been for a limited period outside the state of it habitual residence, is not returned to that state on the expiry of such limited period. Need to be international in nature (in UK not work), -----------Removal/retention out of the jurisdiction of the courts of the State of a child's habitual residence (not out of the care of the left-behind parent)

Jurisdiction in Brussels I - choice of court overview + parties agreed

Article 25 of the Brussels I Recast + Art 17 (Brussels Convention) ---respect the principle of party autonomy and allow parties to choose the jurisdiction that will govern their disputes ----- "If the parties, regardless of their domicile, have ***agreed..." - only parties part of the agreement, not 3rd parties. Though some 3rd parties can be bound by the agreement in exceptions. Case C-366/13 Profit Investment Sim SpA, 2016 (The Court of Justice of the European Union (CJEU) has considered the circumstances in which an English jurisdiction clause contained in a prospectus concerning the issue of bonds might be ***enforceable against a purchaser of those bonds in the secondary market, aka profit when bought from UK body Redy. ---Profit sued Redy and Commers Bank (German who issued bonds) ---Profit investments were part of the agreement ---for national court to know facts to apply that - need reference to clause. Also example of 3rd party no express reference still bound) --refer to national law accepted transfer of obligations. Secondary buyer has to have opportunity to access the clause public/given (which did happen) 1st exception - para 33 - bill of ladding, anyone receive it = not party to original contract, but bound by the original contract's jurisdiction clause 2nd exception - para 34 - companies who buy shares - shareholder in company agree to be subject to provisions of that company

Jurisdiction in Brussels I - choice of court - "that court or those courts shall have jurisdiction, unless the agreement is null and void as to its substantive validity under the law of that Member State" What is sub validity?

Brings it in line with Court of Choice convention ---What was intended from drafters? Refers to law of MS of the chose court - choice of law rule/ Whether J clause sub validity, look at LAW OF CHOSEN court to answer Q Rare case where Renvoi applies in commercial sense - when looking at law of chosen court, look at countries *PI rules. ---- What is sub validity? ---not clear, even drafting Hague of C O C convention - design to cover all issues not about form (so substantive) ---fraud/duress/misrep, not form matters Second school of thought - very idea of agreement is independent, ind. assessment under treaty of what is an agreement - DON'T AGREE - nothing in negotiations to indicate uniform concept of agreement --- go for CHOICE OF LAW RULE (party autonomy - unwise choose country who doesn't appreciate c o c agreement)

Jurisdiction in civil and commercial matters - Brussels convention

Brussels Convention - NOT cover all cases - cover cases: 1.Defender is domiciled in an EU country 2. few other cases where exclusive and defender submitted to jurisdiction =MSs keep national jurisdiction rules for non-EU cases. --Keep forum if domiciled outside EU Domiciled in UK - Brussels APPLIES says COJ. Scope of Brussels convention - reduce chances of forum to apply What rules apply for people outside EU? ---Scotland modeled JRs on Brussels Convention (slightly modified) --England - use common law rules

CFs - HR in the EU general - CASE 1 - S

Case 90/97 Swaddling v Adjudication Officer (S, a British national, worked in France for 15 years. On being made redundant in France, he returned to the UK and claimed income support right away, declaring intention to settle in UK. Application was refused by the UK authorities on the basis that he did not satisfy the habitual residence requirement) HELD - ***HR is where nucleus of his interests are. -Relevant considerations would be --family circumstances --his reasons for moving --the length and continuity of his residence --whether he was in secure employment his apparent intentions S had exercised his right to freedom of movement and had expressly declared his intention to remain in his state of origin where close family had HR. ----CJEU's interpretation (habitual centre of interests approach) was in social welfare law context, in respect of an adult. Here length of residence not intrinsic determining factor; the Court focused on ***quality of residence and settled purpose.

Special jurisdiction in Delict - 7(2) Brussels recast - product liability place

Case C-189/08 Zuid-Chemie BV [2009] ---Product liability - Belgian company making product micromix for fertilizer sold to Dutch making fert --COJ ***place of causal event to damage where defective product was manufactured (Kainz v Barclays bank agreed) ---where place of damage? ***place where product was initial buyer mixed with other good products to make bad product (sold on before realizing bad, then damage of buyer place where they used fertilizer)

Special jurisdiction in Contract - Art 7(1) Recast - 7 b "Where under the contract, the goods..." - continued Focus more on institutional/political significance then commercial - more public lawyers in court than private)

Case C-19/09 Wood Floor Solutions Andreas Domberger GmbH v Silva Trade SA (provision of services in number of places it is supposed to be main provision of service that has J. Try determine by contract, if not answer there then look at facts. ---if no answer there then courts says **domicile of the commercial agent who has J - sue in their own domicile, no one wanted this for b! JUST AN INVENTION) Case C-87/10 Electrosteel Europe SA v Edil Centro SpA (only other good case - where were the goods delivered? And interesting thing -- the court accepted place of goods if contract using **standard terms (ISO) to get place of delivery) -- faithful to legislator Case C-9/12 Corman-Collins SA v La Maison du Whisky SA (bad - only 3 judges for important commercial significance - to classify distribution agreements. Huge part of economy distribute with d agreements with local distributor ---Held COJ - d agreements are contract of service. Who is providing the service?! Should focus on obligation in Q a) Case C-196/15 Granarolo SpA v Ambrosi Emmi France SA (what type of contract is this - court throw back at national court. Why not as advice use a - no just fit in b!)

Jurisdiction in Brussels I - choice of court - "which have arisen or which may arise in connection with a **particular legal relationship"

Case C-352/13 Cartel Damage Claims v Akzo Nobel and others, (no j clause to read do facts unclear. COJ - abstract analysis of problem. para 69 - clause which abstractly refers to all disputes from contract relations does not relate to toritius liability that one party allegedly occurred from an unlawful cartel --- assumption - one party in cartel rigged prices, those prices caused harm to other contractual party - sue damages in tort, **damages of cartel arise from contractual relationship? NO (though teacher says depends on facts) Court - says expressly state in contract - cover action for damages from incident in a cartel

Special jurisdiction in Delict - 7(2) Brussels recast - where is the place of damage? + pre-contractual liability

Case C-364/93 Marinari (1995) ---where is place of damage? COJ - first place of damage - person initially damaged not consequential ---Mar was from Italy, went to Lloyd in Engalnd asked if put promisary notes in acccount - bank suspicious, polic arrest. ---Notes sequestrated for some time. Later released, notes no longer sequestrated brought action in Italy. ---COJ replied Italy does NOT HAVE JURISDICTION - because place of harmeful event occured cannot be construed to include intialy damage in another place. Case C-334/00 Tacconi (2002) ---COJ - action founded on pre-contractual liability (negotiation on contract) treated as a TORT problem - 7(2) not 7(1)

Special jurisdiction in Delict - 7(2) Brussels recast - trademark place

Case C-523/10 Wintersteiger AG v Products 4U (2012) ---TM case, where austrian company TM suing German company using it - argued just German market, but other argued no matter can see via internet ---COJ- place of damage was where TM ***was registered only - territorial effect TM only in that country TM right can be damaged. ---Place of causal event arise to damage can be another place, place of establishment person allegdly infringing -COJ did NOT say victim right to sue in center of interest (not extend IP rights unlike personality rights) Case C-387/12 Hi Hotel HCF SARL v UWE Spoering (2014) --copyright case - copyright not registeresed rights, not so obvious cop vests. --COJ stuck to Shevill approach - sue all damage where copyright created, here France where photographer took pictures of hotel, hotel used for marketing in book and purchased/used in Germany. ---What J did Germany courts have? Yes can sue damage for damage in country J for place of damage, breach of cop happen anywhere in world. All damage then ***go to place where cop breach took place

Special jurisdiction in Contract - Art 7(1) Recast - 7 a - contractual or delictual issue?

Case C-548/12 Brogsitter (court say matter relating to delict covers all actions seeking to establish liability of defendant and does not concern contract - falls in 7(2). para 21 - order to determine civil liability important to check autonomous EU meaning of delictual/contractual action para 26 - refereeing court to determine Q --- legal basis of proceedings breach rights/obligation in contract, analysis of contract indispensable = contractual claim, MUST satisfy 7(1)). Case C-196/15 Granarolo SpA v Ambrosi (dispute long standing tacit relationship between parties. No clear contract between them - **Art 7(1) can apply even where one party contesting very existence of contract Possible to have tait under 7(1) - existence of fact relationship must be demonstrated not presumed. --Determine by body of evidence --Decide if contract before deciding J)

Special jurisdiction in Delict - 7(2) Brussels recast - defamation place

Case C-68/93 Shevill v Press Alliance [1995] ---french newspaper selling some copies in other countries but mostly France. Action brought in England where they had read it and felt defamed. --Defamation - multiple place sof damage, more popular bigger reputation. ---COJ - want to sue for all damage caused to you, sue ***publicher in place where published established - aka place of causal event rise to damage arose. ---can also sue in place of damage, England, but only get damage caused there not elsewhere Joined Cases C 509/09 and C 161/10 eDate Advertising GmbH v ***X and Martinez v MGN Ltd (2011) ---more modern world than in Shevill, can access newspaper anywhere via the internet. Martinez news he was dating kylie Monogue, sued Mirror News Group for damages for breach of privacy ---Look at Shevill rule ---COJ - held should give P chance to sue all damage in their ***centre of interest on breach (usually where normally habitual residence but if work related, working elsewhere, then there). ---MADE UP at court, no justification by legislator. ---PROBLEM - not always weak P ad strong D, small publishers in weak position Case C-133/11 Folien Fischer AG and another v Ritrama SpA, (2013) ---Court decided leg that 7(2) works both ways not just victim sue in casual place/place of damage on negative declaration by wrongdoer. ---apply in defamation here too. Both parties can harass each other. Broad Jurisdiction rule

Justification for PIL?

Comity (courts respect each other - rec/enforce your judgement and you do mine) Doing justice to the parties (giving effect to the legitimate expectations of parties, respecting party autonomy Achieving uniformity of decisions (reducing forum shopping, increasing legal certainty

Jurisdiction in Brussels I - choice of court - asymmetric agreement

Controversial since France in highest court thinks these agreements do not fall in Art 25, most MSs think otherwise. NO clear cut COF case on issue. AA - ---One party is obliged to file its suit in a forum determined by the clause (generally the courts for its counterparty's place of domicile). ---The counterparty, however, has greater freedom, within confines that may greatly vary with the wording of the clause. In practice, the clause may even allow the beneficiary to apply to any other court that would normally assume jurisdiction to hear the dispute if the jurisdiction clause did not exist. e.g. banker + borrower. Borrower only do eclusive court (like england) while bank can do chosen court or any court under regulations MJA Societe v Apple Sales International Cour de Cassation (France) (struggling with case here, where the borrower can be sued uncertain) --Domicile fixed into Art 25 fixed slightly - chosen court EU one, then more likely agreement under Art 25

Overview domicile in contract + Art 62 for natural persons 1. In order to determine whether a party is domiciled in the Member State whose courts are seised of a matter, the court shall apply its internal law. 2. If a party is not domiciled in the Member State whose courts are seised of the matter, then, in order to determine whether the party is domiciled in another Member State, the court shall apply the law of that Member State.

Domicile - jurisdiction for natural and legal person Natural - national law rules Legal - harmonized over EU Art 62 Recast - order to determine whether a party is domiciled in the MS whose court are asked on matter the court shall apply internal rules NOT same as common law domicile/family law/succession - focus on statutory definition of Brussles 1 regulations and Lugano Convention This rule is contained in section 41 of the Civil Jurisdiction and Judgments Act 1982 as amended by the Civil Jurisdiction and Judgments Order 2001 (SI 2001 No. 3929). ----In order to determine whether an individual is domiciled in another Member State, a court must apply the law of the Member State of the proposed domicile (Art 59(2) of the Brussels I Regulation).

CFs - Domicile of Choice basic

Every person sui juris may acquire a domicile of choice by a change of residence and intention. ---"Domicile of choice is a conclusion or inference which the law derives from the fact of a man fixing voluntarily his sole or chief residence in a particular place, with the unlimited intention of continuing to reside there." (Udny v Udny) Two elements must occur for the acquisition of a domicile of choice: 1. factual move and 2.the intention (Agulian v Cyganik) ***Actual residence in a place with the intention of making it home permanently or indefinitely

PIL family - Hague 1980 - HR in general

Flexible concept ⇨ responds to the demands of a modern, mobile society (connecting factor) Largely factual concept ⇩ Indicators: 1.) period of residence 2.) intention.

The conflict process - Jurisdiction -General jurisdiction vs special j

G- --The basis of jurisdiction is the link/connection between the forum and the defendant. --In the European judicial area, in civil and commercial matters, it is based on the connecting factor of the domicile of the defendant (sued in place of domicile) --The connecting factor creates the jurisdiction irrespective of the particular claim. S- --The basis of jurisdiction is the link/connection between the forum and the cause of action, eg ----the place of performance of the obligation in question; ----the place where goods are delivered; ----the place where a service is performed; ----the place where a harmful event (that gave rise to the damage) occurs or may occur. The court must identify the cause of action (e.g. contract, delict).

CFs - Habitual Residence - must residence be voluntary?

Generally residence must be voluntary. ---However, in Shah Lord Scarman cited kidnapping, imprisonment or being stranded on a desert island as examples where the lack of opportunity of escape are so overwhelming 'as to negative the will to be where one is'. ---Similarly members of the armed forces will be habitually resident in the country where they are posted.

PIL family - Hague 1980 - HR of child

HR - not defined in the Convention or in the Explanatory Report to the Convention ⇩ Courts are to freely apply it to the facts of a particular case. ---Interpretation by courts in different Convention States is problematic ⇨ lack of uniformity as to: 1. Emphasis exclusively on the factual situation of the child, or 2. Regard paid also to the intentions of the child's parents, or 3. Focus primarily on the intentions of the child's parents. 4. Role of the intentions of the child (Re LC (Children) [2014] UKSC 1)

CFs - Habitual residence in EU law

HR is given an AUTONOMOUS EU meaning unless there is an explicit reference to national law. ---No overarching EU defitinion of HR exists ---When considering the meaning of habitual residence in the EU, look to the **overall purpose of relevant legislation (teleological method of interpretation): -Regard must be paid to the objective of the instrument concerned -Regard must be paid to the legislative context.

CFs - Habitual Residence (Common law) - Defining

Has deliberately not been defined in any of the statutes or Conventions in order to avoid the rigidity associated with the alternative concepts of domicile and nationality (Rogerson 2000:87) The expression is not to be treated as a term...with some special meaning, but is rather to be understood according to the ordinary and natural meaning of the two words which it contains (Re J. (A Minor) (Abduction: Custody Rights at 578) BUT case law reveals that the term has been developed in a specialised manner

The conflict process - Recognition and enforcement of Foreign Judgments (3rd stage) *****Important note: This choice of law analysis only applies to issues related to substance. Procedural issues (like evidence) are always decided by the lex fori.

If a dispute has already been heard and decided in a court in state A, the applicant may seise a court in state B to recognise and enforce that foreign judgment so as to avoid re-litigating the same question there. ---Will/can a judgment given by the courts of State A be recognised or enforced in another jurisdiction? --The seised court will consider whether a foreign judgment can be recognised pursuant to its domestic rules or any international treaties that are applicable in this case. In the EU, the Brussels regime enables the free movement of judgments between EU Member States, and judgments given in an EU Member State are recognised and enforced without ***any special procedure being required. (since same regulation rules)

CFs - Losing HR

If person leaves HR with no intention to return, HR is lost in a single day If person leaves HR with intention to settle in another country for a period of time (employment, education), HR is lost in a day ***If person leaves HR with intention to stay temporarily in another country, but later on decides not to return, HR is lost immediately ***If person leaves HR temporarily with firm intention to return, HR is not lost (e.g. holiday) ---A person can be without a HR until another is acquired. ---Since many leading cases regarding habitual residence related to child abduction, the courts have been inclined to ensure that there is no 'gap' in a person's habitual residence.

Jurisdiction in civil and commercial matters - originally 4 set of rules (categories)

In what follows next, we take a look at the implications of different categories of cases for purposes of jurisdiction: 1) Defendant domiciled in an EU Member State; 2) Defendant domiciled in a non-EU Lugano Contracting State; (l - Iceland/Norway/Switzerland) 3) Defendant domiciled in another part of the United Kingdom (i.e. in England and Wales or Northern Ireland); 4) Defendant domiciled anywhere else in the world; and 5) Exclusive choice of court agreement within the meaning of Hague Choice of Court and one party is resident in a non-EU Contracting State to that Convention.

Jurisdiction in Brussels I for contract and delict - hierachy of jurisdiction

It is as follows: 1. Recast Article 24 - Exclusive jurisdictions ---in rem, immovable property, long term tenancy of immovable property + IP rights (where registered=do it) 2. Recast Article 26 - Submission (sued in a country, not object jurisdiction at first available opportunity = submitted) 3. Recast Articles 10-23 - Protective schemes of jurisdiction for insurance, consumer contracts and employment contracts (not examined in any detail in this course) ***4. Recast Article 25 - Choice of court agreements (prorogation) ***5. Recast Article 4 the general ground of jurisdiction (domicile of the defender) ----and Recast Articles 7-9 the special grounds that operate as alternative choices for the pursuer to the general ground.

CFs - Habitual residence in the Brussels IIa Regulations - Mercredi v Chaffe

Mercredi (Child born to an English mother and French father in 2009. The child had been habitually resident in England. The parents separated and the mother took the child to Réunion, a French territory, without informing the father. Had the child become habitually resident in Réunion by staying there for a few days?) Held - ---Laws of the MSs do NOT determine meaning and scope of HR; meaning and scope must be determined in the CONTEXT of the Regulation's provisions and the objective pursued by it. ---Grounds of jurisdiction of Brussels IIa Regulation to be shaped by best interests of the child. Same as Re A---Regulation concept of HR corresponds to the place which reflects some degree of integration by the child in a social and family environment. SAME AS re A - That place must be established by the national court, taking account of all the circumstances specific to each individual case.

Special jurisdiction in Contract - Art 62 Brussels 1 Regulation recast - natural persons domicile + cases

Natural - residence keep connecting factor for domicile . Second limb, nature/circumstances of residence indicate a substantial connection with the UK Over 3 months or more residence = presumption of close connection Daniel v Foster (F usually domiciled in England but working residence in Dunbarton running a care home in Scotland. Before sue in Dunbarton sheriff court - work 2-10 days at a time or gap fortnight before raise of action. Over period of more than 3 months - sherrif 3 months before, Dunbarton residence? Held - YES presumption of 3 months? Yes frequently enough though not continuous) English case law rubbish Abramovich (2008) (chelsea football, runs it. More than one residence, divorced wife + kids in London while he is Russian Oligarch. Held not domiciled in England, even with 110 days in England in 2006). Eng King Ltd v Petrillo (someone who spend time between Russia/England. Person is english. Domicile in England hence allowed to sue) ---wealthier = harder to sue since they don't stay long in one place, should treat more like company to defend in different places

Jurisdiction in Brussels I - choice of court - para 2 - "Any communication by electronic means which provides a durable record of the agreement shall be equivalent to 'writing'."

Not in B convention originally, since a long time ago. ---Do you have to print out of what is entered into to have durable record? NO - ***possibility of durable record (clear explanatory report that courts took) Case C-322/14 Jaouad El Majdoub v CarsOnTheWeb.Deutschland (contract entered onto on the web, point which t/c appeared to click. In t/c clear reference to C O C clause for area in Belgium. Parties did it online - take action in Germany, saying didn't print t/c hence no durable evidence hence no need to go to Belgium Held - WRONG, held cound by t/c)

Jurisdiction in Brussels I - choice of court - para 5 (severability) - "An agreement conferring jurisdiction which forms part of a contract shall be treated as an agreement independent of the other terms of the contract." ----"The validity of the agreement conferring jurisdiction cannot be contested solely on the ground that the contract is not valid."

Not use para 3/4 here Failure of performance not effect c o c agreement Case C-116/02 Gasser v MISAT (reversed by RECAST - give more weight to legal certainty. Not defeated that c o c agreement invalid in another court. Have to do in actual court, more weight to c o c agreements) ---less spent on litigation

Special jurisdiction in Contract - Art 7(1) Recast - 7 a - "place of performance of obligation in Q" - what does it mean?

Obligation in Q - obligation on which pursuer finding in contract in which pursuer relying on Case C-440/97 Groupe Concorde confirmed this. Also if P make contract claim complex one with several obligations to be fulfilled - sue proper performance in all things done in different countries if split up. ***Confirm P can sue for principal obligation in Q which contractual issues that arise - LEFT to national court) Case C-420/97 Leathertex v Bodetex (clarified that more than one principal obligation of equal rank then split - x perform in Y, A in B have to sue in different jurisdictions) --- court usually avoid this since expensive so usually conclude principal obligation) Place of performance? Case C-256/00 Besix SA (clarify 7(1)(a) only operate if single place of operation of obligation)

Definition (and nature) of PIL

PIL - area of law that deals with private law matters involving a foriegn element --'private' e.g. contract, delict, UE, marriage/divorce, adoption + succession --'foreign element' connects a matter to more than one legal system e.g. parties could be domiciled or habitually resident in different countries; --or the event giving rise to the claim may have occurred abroad; --or a party may claim ownership of a moveable property that is situated abroad.

Sources of PIL

PIL - part of national; law of EACH state - Scotland has its own principles of PIL ----(played important role in PIL like the Doctrine of Forum non Conveniens which gives a court discretion to hear a case or send to another more appropriate venue) The sources of PIL include: --common law, --acts of Parliament --act of EU institutions --international conventions adopted by the Hague Conference on Private International Law. --Scottish courts refer extensively to English literature and case-law in their judgments.

PIL and other areas of Law

PIL has connections with different areas of law: --All areas of private law (can have a foriegn element - contract, delict, succession, property) --EU law (harmonised by EU regulations relevant with private law) --Comparative law (sometimes used as a method in PIL) --Public international law (relations between states though) --Human rights law (particularly procedural q's can be relevant)

Relevance of PIL

PIL is not a new discipline. Its origin goes back to the Roman Empire where personal law varied depending on whether one was a citizen PIL is becoming more and more important due to the globalisation and regional integration: ---Cross-border business transactions ---Cross-border consumer transactions ---International family law issues (e.g. divorce; child abduction; adoption) ---Travel (e.g. delicts committed/suffered abroad) EUPILLAR project findings for demand for cross border legal advice in Scotland (only EU related disputes) ---Contract - High in oil/gas ---Delict - reasonable demand in personal injury cases (scot travelling abroad or while travelling, foreign nationals who are injured abroad but but reside here or foreign nationals injured here) ---Family - demand for cross-border legal advice here sought by foreign nationals + domiciled Scottish expats. Claimants not habitually resident in Scotland come up increasingly regularly

Connecting factors - basics

PIL rules are usually based on connecting factors. --- Connecting factors consist of a link between a legal system and an event, a thing, a transaction or a person, Some examples: ---Event/thing/transaction: place of contracting, place of performance, place of wrongful action, place of damage, the situs, etc. ---Personal: domicile, habitual residence, nationality, etc.

Harmonsiation effects

PIL rules differ from one legal system to another. ----Through harmonisation, the differences between the legal systems are reduced (private law useful) Harmonisation at the EU level: --PIL has been largely harmonised in the EU. --Aims: increasing legal predictability and certainty, resolution of conflicts of jurisdiction, enabling mutual recognition and enforcement -Successful, Rome I/Rome II for example Harmonisation at international level: --Hague Conference on Private International Law -A global inter-govermental organisation working for the "progressive unification" of the PIL rules in a wide range of areas --has currently 82 Members: 81 States and the EU -Successful, ratified by a number of states

CFs - Domicile of Dependence

Persons who are not sui juris do not have the capacity to acquire a domicile independently of another person. 3 classes of dependent persons: ---Married women, prior to the Domicile and Matrimonial Proceedings Act 1973 that abolished it - new rule is that married women can acquire a domicile of choice independently of her husband. ---Children (Prior to Family Law (S) Act 2006 - legitimate child's domicile changed with that of the father. ----But, following DMPA 1973, when the parents were living apart, domicile of dependence ***followed the mother if the child lived with her. Family Law Scotland) Act 2006: S.22 provides that a child (under-16) shall be domiciled in the same country as the child's parents where: ---the parents of a child are domiciled in the same country as each other; and ---the child has a home with a parent or a home (or homes) with both of them. (If above does not apply, the child shall be domiciled in the country with which the child has for ***the time being the closest connection) ---Individuals of any age who lack sufficient mental capacity

Cfs - Art 63 of the Brussels I recast

Provided for legal persons - "1. For the purposes of this Regulation, a company or other legal person or association of natural or legal persons is domiciled at the place where it has its: (a) statutory seat; (b) central administration; or (c) principal place of business. 2. For the purposes of Ireland, Cyprus and the United Kingdom, 'statutory seat' means the registered office or, where there is no such office anywhere, the place of incorporation or, where there is no such place anywhere, the place under the law of which the formation took place. 3. In order to determine whether a trust is domiciled in the Member State whose courts are seised of the matter, the court shall apply its rules of private international law."

The conflict process - Applicable law - Some methodological issues/concepts 4th - Public Policy (PP)

Public policy can block the application of a foreign rule otherwise applicable to a particular issue, if its application would be unacceptable to the concepts of justice and morality of the forum eg: ---the inequality between husband and wife in certain types of divorce may be considered to be against morality, social order, and contrary to public policy --Public policy should be used only in EXCEPTIONAL CIRCUMSTANCES --The public policy requirements may vary. The common requirements for its use are: 1) Manifest contradiction: The application of the foreign rule should be manifestly contrary to the public policy of the forum. 2) Proximity: There should be a sufficient link between the dispute/case and the forum (so PP interference can be JUSTIFIED)

Co- Defendants Art 8(1) Recast - anchor defendant

Sue in England, domiciled in England, anchor since bring all Ds. Know not win against anchor yet bring into J since procedural advantage ---court ambiguous how to deal with this. --Case C-352/13 Cartel Damage Claims v Akzo -- have to show to be able to disapply 8(1) firm evidence to support that applicant brought artificial case against anchor D ---soon as case started + other defendants there, anchor German - settlement quickly with anchor while brought all other other ds + J remains. ---Focus on day when you launch proceedings.

PIL family - Hague convention on civil aspects of International child abduction - basics

Term "international child abduction'" -- not criminal case focus. ---Consequences for the child and the left-behind Lawful movement - child relocation, consent of both parents or one replaced by court Unlawful movement - removal or retention Child moved from contact of left behind parent + their own enviroment + culture not known or weak to them ---Motivation of parent? No one answer The abductor - majority of the cases now are custody of mothers, 69%.

Art 81 TFEU - about + purposes of ensuring

The Union shall develop judicial cooperation in civil matters having cross-border implications, based on the principle of mutual recognition of judgments and of decisions in extrajudicial cases. 2. For the purposes of paragraph 1, the ***European Parliament and the Council, acting in accordance with the ***ordinary legislative procedure, shall adopt measures, particularly when necessary for the proper functioning of the internal market, aimed at ensuring: a) the mutual recognition and enforcement between Member States of judgments and of decisions in extrajudicial cases; b) the cross-border service of judicial and extrajudicial documents; c) the compatibility of the rules applicable in the Member States concerning conflict of laws and of jurisdiction; d) cooperation in the taking of evidence; e) effective access to justice; f) the elimination of obstacles to the proper functioning of civil proceedings, if necessary by promoting the compatibility of the rules on civil procedure applicable in the Member States; g) the development of alternative methods of dispute settlement; h) support for the training of the judiciary and judicial staff. 3. Notwithstanding paragraph 2, measures concerning ***family law with cross-border implications shall be established by the Council, acting in accordance with a special legislative procedure. The Council shall act unanimously after consulting the European Parliament.

Jurisdiction in civil and commercial matters - UK opt in Art 81 TFEU

The United Kingdom and Ireland have a special Protocol which means that these countries have the discretion whether 1. to opt in to a new Commission proposal within 3 months of the proposal being made (the UK did this on Brussels I, Brussels I Recast, Brussels IIa and Rome II) 2. or to negotiate on the proposal in the Council and decide to opt in only after the final version has been adopted by the Council (the UK did this on Rome I and Maintenance) 3. or not to opt in at all (eg Rome III, Succession, Matrimonial Property).

The conflict process - Applicable law - Some methodological issues/concepts 1st - Characterization/classification/qualification

The court will characterise the dispute into a particular category. ---Why to characterise? --Different legal systems assign some issues to different legal categories, eg some to contract and others to delict. (example on slides) --How to characterise? ---There are different approaches, eg characterisation by the lex fori, by the lex causae, by autonomous concepts (like comparative method) etc. --The court will usually apply the lex fori to characterisation (the law of the country in which an action is brought.)

CFs - test for HR of child

The current test for the habitual residence of a child that developed by the CJEU under the Brussels IIa Regulation in Re A and in Mercredi: "(...) the place which reflects some degree of integration by the child in a social and family environment. In particular, ---duration, regularity, conditions and reasons for the stay on the territory of the Member State and the family's move to that State, ---the child's nationality, ---the place and conditions of attendance at school, ---linguistic knowledge ---and the family and social relationships of the child in that State should all be taken into consideration obviously appropriate to the child's age."

The conflict process - Applicable law - Some methodological issues/concepts 2nd - The incidental (preliminary Q)

The incidental question is a subsidiary question that affects the primary question. ----The primary question CANNOT be answered until the incidental question has been answered. Eg:the distribution/share out of the estate of the deceased may depend on the validity of the marriage of the deceased. ---the capacity to re-marry may depend on the validity of the previous divorce. ---The incidental question also involves a foreign element and needs to be resolved: -should the law applicable to the primary question also apply to any incidental question that arises? or -should the law applicable to the incidental question be determined separately according to the relevant choice of law rule?

Jurisdiction in civil and commercial matters - voting Art 81 TFEU, national parliament thoughts

The proposal referred to in the second subparagraph shall be notified to the national Parliaments. ----If a national Parliament makes known its opposition within ***six months of the date of such notification, the decision shall not be adopted. In the absence of opposition, the Council may adopt the decision." ---It is important to be aware that in family law matters the voting requirement is ***unanimity in the Council and the European Parliament is only consulted whereas in other areas it is qualified majority voting in the Council and the legislation is passed by co-decision with the European Parliament.

The conflict process - Applicable law - Some methodological issues/concepts 3rd - Renvoi - different rapprochements + international/regional instruments

There are different approaches: internal law theory (1st one - reject renvoi), partial (single) renvoi (refer back to scots law), double (total) renvoi/ foreign court theory (refer to 3rd law) Renvoi in international/regional instruments ---The contemporary trend is on the whole to EXCLUDE the application of renvoi, eg Art 20 of Rome I, Art 24 of Rome II, Art 12 of the Hague Maintenance Protocol **But, there are instruments which include renvoi for certain matters

Jurisdiction in civil and commercial matters - UK history with EU (did not push other countries to use 2nd Q)

UK joined European Community in 1973 - required UK to accede to the ***Brussels Convention (1968) --purely civilian, sets out rules of jurisdiction The UK did so through the ***1978 Accession Convention which entered into force in 1987 after the adoption of the Civil Jurisdiction and Judgments Act 1982. --Scotland had to apply the Brussels Convention to all disputes within its scope but it took the bold step of deciding to base its ***jurisdiction rules applying to matters outside the personal scope of that Convention on the Convention rules (HENCE 4 CATEGORIES STATED LATER) ---Treaty of Amsterdam 1999 - the EC was empowered in Article 65 of the EC Treaty to make Community laws (Regulations and Directives) in the field of private international law. = GOT COMPETENCE ----Once the Treaty of Lisbon 2009 this power shifted to Article 81 of the Treaty on the Functioning of the European Union (TFEU) that is set out below.

Jurisdiction in Brussels I - choice of court - form issues, A, B, C - form requirements ***--C - REJECTED IN INTERNATIONAL TREATY - EU should abandon a/c

Use profit investment Sim Spa case as an example Art 25, (a) in writing or evidenced in writing; ---straightforward, c o c agreement in writing + evidenced was oral when agreed, recorded after (like transcript) which used as evidence --Bonds issued, prospectus has j clause - had to have reference in contract to P - in WRITING contract refers to something else brought into it + agreed by parties (b) in a form which accords with practices which the parties have established between themselves; or ---initially agreed early on c o c clause, then informal approach to continuation of relationship, formalized ---UNCERTAINTY - one party says original agreement continues, other needed to repeat to continue contract (c) in international trade or commerce, in a form which accords with a usage of which the parties are or ought to have been aware and which in such trade or commerce is widely known to, and regularly observed by, parties to contracts of the type involved in the particular trade or commerce concerned. ---USAGE CLAUSE - move away from system of actual consent, go to DEEMED CONSENT of parties - OUGHT TO BE AWARE OF USAGE. (unusual that all would think in commerce use C O C clause since such strong usage) -------Standard practice - COF says factual q for national court to decide if such a practice exists - can be just practice in one area of EU rather than all UNSURE HOW IT OPERATES ---Uncertain to have practice in all Irish stock market, bonds market - openended criteria

Jurisdiction in Brussels I - choice of court - "have agreed"

What constitutes as an agreement? Case C-222/15 Hoszig Kft v Alstom Power Thermal Services (general t/c of tech (french) included exclusive jurisdiction for Paris. Entered contract with Hungarian company Hoszig - "must ensure you have these documents or ask". Suppliers need to read them to sign - in Hungarian court, bound? Held - yes, had agreed - conditions for agreement is para 39 that **express reference in contract to general conditions. If you have clause = agreed to it. Para 40 - general condition actually communicated to party = yes.) Don't need to be negotiated t/c - can be general

The conflict process - Applicable law - Some methodological issues/concepts 3rd - Renvoi

When a choice of law rule refers the dispute to a foreign law, does it mean that: --internal rules of that law will be applied to the dispute? Or --choice of law rules of that law will be applied to the dispute? Eg: The Scottish court applied its choice of law rule and found that New York law will apply to the issue. Does it mean that: ----the court will apply the domestic/internal rules of New York law and will resolve the dispute according to those domestic rules? AKA reject renvoi 1st q ---the court will apply the choice of law rules of New York law?

The conflict process - Applicable law - Some methodological issues/concepts 4th - Public Policy (PP) - which rule will apply instead of foreign rule?

Where the court disregards the foreign rule on the basis of public policy, which rule will it apply, instead of that foreign rule? Different approaches in different PIL acts, eg: --the lex fori is applied --another relevant rule of the foreign applicable law is applied --no specific solution is provided and the issue is left to the court. (silent on matter)

PIL family - Hague 1980 - presumptions

Wrongful removal/retention of a child is not in the best interests of the child (except in exceptional circumstances) The return of the child to the State of the habitual residence will promote his/her interests: ---1. The right of the child to have contact with both parents 2. Continuity in the child's life 3. Determination of custody/access is made by the most appropriate court (likely availability of relevant evidence). The principle of prompt return is seen as a deterrent to parental abductions generally.

The conflict process - Applicable law - Some methodological issues/concepts 2nd - The incidental (preliminary Q) - CASE EXAMPLE

e.g. Schwebwl v Ungar (Jewish couple domiciled in Hungary - emigrated to Isreal but on route they got divorced in Italy. Later, each party both acquire domicile in Israel - divorce valid in Israeli law but not Hungary/Italy. --Wife moved to Toronto and purported to re-marry. Toronoto court was seised to decide whether she had capacity to re-marry) ---the capacity to marry is governed by the law of the party's domicile at the time of the marriage; AKA divorce valid ---the validity of divorce is governed by the law of the husband's domicile at the time of divorce - hungary law, not valid divorce -Determined incidental by LAW governed by primary BUT exceptions to facts of case like here, outcome fairer with same law aka Iraeli