Tort conflicts rules in cross-border multi-party litigation: Which law has a closer or the closest connection?

This article compares Owen v. Galgey under Article 4 Rome II Regulation and YANG Shuying v. British Carnival Cruise under Article 44 Chinese Conflicts Act in the context of cross-border multi-party litigation on tort liability. The questions raised in these two cases include how to interpret the tort conflicts rules of lex loci delicti, lex domicilii communis and the closer/closest connection test when determining the applicable law. In particular, as regards the meaning of lex loci delicti, the notion of ‘damage’, the common habitual residence of the parties and the criteria to determine the closer/closest connection, different interpretations were provided in these two cases. In order to clarify certain ambiguity of tortious applicable law rules in cross-border multi-party litigation, a comparative study of Chinese and European tort conflicts rules is conducted. This article does not intend to reach a conclusion as to which law is better between the Rome II Regulation and the Chinese Conflicts Act, but rather highlights a common challenge faced by both Chinese courts and English courts in the field of international tortious litigation on personal injury and how to tackle such challenge in an efficient way under current legislation.

22. International Parental Child Abduction

This chapter concerns parental child abduction, that is, where one parent takes the child to another place or jurisdiction without the other’s consent. The chapter discusses the issue both where the abduction is within the UK and where the child is taken to a foreign jurisdiction. The chapter begins by looking at the mechanisms to prevent abduction. It then considers the inter-UK position under the Family Law Act 1986 followed by an examination of the international position first with regard to abductions to and from ‘non-Convention countries’ and then with regard to those governed principally by the 1980 Hague Abduction Convention. In the latter regard it discusses the concepts of rights of custody, wrongful removal and wrongful retention and habitual residence. It then examines the making and refusing to make orders for the child’s return and ends with a discussion about the position with regard to access.

Miejsce zwykłego pobytu dziecka — uwagi na tle wyroków Trybunału Sprawiedliwości Unii Europejskiej z dnia 28 czerwca 2018 r. (C-512/17) oraz z dnia 17 października 2018 r. (C-393/18 PPU)

In cases C-512/17 and C-393/18 PPU, the national courts raised doubts as to the significance of the circumstances that should be taken into account in determining the habitual residence of a child. In particular the issue was whether the child’s physical presence is a prerequisite in order to recognize that a child has his habitual residencein the country concerned. In its judgment of 17 October 2018, the Court of Justice found that a child must be physically present in a Member State in order to be regarded as habitually resident in that Member State. The parent’s intention cannot be assigned a decisive role. The arguments in this respect are consistent with the interpretation of the concept of habitual residence laid out in the earlier judgment of 28 June 2018, in which the Court of Justice connected the habitual residence of the child with the place where the centre of that child’s life is actually situated, and not with the place where the child would have lived in accordance with the plans of one of the parents. The Court’s interpretation can be attributed to the so-called combined model of determining a habitual residence by looking for child’s centre of interest, taking into account a number of circumstances, including the intention of parents with parental responsibility. Physical presence has rightly been recognized as a necessary condition for establishing jurisdiction under Regulation No 2201/2003 based on habitual residence.

DETERMINATION OF A CHILD’S HABITUAL RESIDENCE IN INTERNATIONAL CHILD ABDUCTION CASES: CHARTING THE WAY TOWARDS HARMONIZATION

The 1980 Child Abduction Convention is aimed at addressing the increasingly disturbing problem of trans-border parental child abduction, its key mechanism being to promptly return an abducted child to his or her country of ‘habitual residence.’ In essence, habitual residence is established as the chosen personal connecting factor in international child abduction cases. However, in view of the failure of the Convention to define the term, it has become the responsibility of the courts around the world to improvise their own standards for the determination. The objectives of the present paper, therefore, are to assess the deplorable situation of fragmented approaches and standards used by the courts in determining habitual residence of a child and to explore the recent developments in judicial pronouncements in order to be able to demonstrate the changing trend in the jurisprudence of the courts. To achieve these, the paper looks into and appraises the decisions of the courts of the United States of America, Canada, the European Union, the United Kingdom and other common law countries. The paper concludes that the changing trend is clearly discernible and a number of courts of States parties are increasingly applying a hybrid or combined approach rather than various subjective and one-sided approaches and thus moving towards the achievement of harmonization in the determination of a child’s habitual residence, the underlying principle of the Convention.

8. Jurisdiction

This chapter deals with the European law governing jurisdiction in divorce and the international law concepts that are a feature of this area of law. It discusses the increasingly important question of jurisdiction in divorce proceedings, and explains the concepts of ‘domicile’which includes domicile of origin, domicile of dependence, and domicile of choice. It also explains the concept of ‘habitual residence’ as how both domicile and habitual residence apply to divorce proceedings. There is finally an outline of jurisdiction in practice and the rule that if the domicile of a client is uncertain then habitual residence is usually easier to establish. There is some mention of Brexit.

Monasky v. Taglieri (U.S. Sup. Ct.)

The Supreme Court of the United States has decided four cases under the 1980 Hague Convention on the Civil Aspects of the International Child Abduction (hereinafter the Hague Convention), the most recent one coming this term in Monasky v. Taglieri. The Hague Convention, adopted in 101 countries, requires the judicial or administrative authority of a country that is party to the Convention to return a child who has been wrongfully removed or retained to the country of the child's habitual residence.The Convention also provides for a limited number of defenses to return. The obligation of return is a “provisional” remedy, in that the merits of any custody dispute will be determined by a court in the country of habitual residence. One of the most critical aspects of the Convention is this concept of “habitual residence,” which was the issue presented to the Court in Monasky.

Application of the Succession Regulation by German courts — Selected Issues

The article discusses the impact of the EU Succession Regulation on the German system of private international law. The change came with some important differences introduced in the text of the Regulation as in comparison to previous German solutions (especially the use of the habitual residence as the main connecting factor instead of nationality), and, as a result of the number of decisions of the CJEU on the Regulation (in particular the Kubicka case).The paper presents the most important, up-to-date German case-law relating to the EU Succession Regulation. It starts with the general remarks in that regard and continues to discuss judgments covering issues of jurisdiction, applicable law, and the European Certificate of Succession. Three conclusions are drawn therefrom. First, the cases show a general willingness of the courts to cope with the fundamental changes introduced by the Regulation. In particular, the concept of “habitual residence” is applied on the basis of an autonomous interpretation by reference to the case-law of the CJEU on Regulation Brussels IIa. Second, a number of decisions make apparent that the courts are sometimes slow to accept the consequences which flow from the changes brought about by the Regulation, and which oblige to re-consider the German practice in matters of international successions. That applies in particular to the issuing of the European Certificate of Succession. Third, German courts are generally ready to initiate cooperation with the CJEU by formulating preliminary questions (three questions posed by the end of 2019).

Understanding how decision-makers practice discretion in the context of the Habitual Residence Condition in the Republic of Ireland

This paper seeks to gain a greater understanding of how decision-makers practice discretion in the context of the Habitual Residence Condition, an additional criterion for eligibility to social assistance payments in the Republic of Ireland. The paper identifies two approaches to using discretion: nomocratic and telocratic, with both largely emerging as a result of specific structural and cultural conditions that exist within the organisations concerned, and directly impacting the decision-making practices of public servants. Some decision-makers are found to be happy to make discretionary decisions, while others struggle, resist and protest against the deployment of discretion in the provision of social assistance, instead arguing for rigid rules that can be applied to all welfare applicants.