Renvoi and Conflict of Laws

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Renvoi and Titleconflict of laws date Zoé AncelText -Lioger Responsible of the Department Private International Law and Comparative Law CRIDON of Lyon The contentThe content of this of this document document represents represents the the views views of the authorauthor only only and and it isit his/heris his/her sole sole responsibility. responsibility. The EuropeanThe European Commission Commission does does not not accept accept any any responsibility responsibility forfor useuse that that may may be be made madeof theof the information information it contains. it contains. Intestate succession (renvoi) Art. 21 Law of last habitual residence Law of a Member State Law of a third State Application of internal provisions Consultation of foreign conflict-of-laws rules Accepts its jurisdiction = European Union except Denmark, renvoi to renvoi to Application of internal the United Kingdom, and Ireland provisions Law of a Member State Law of a third State = renvoi at first instance consultation of OK foreign conflict-of-law = European Union rules except Denmark, UK & Ireland The law of this third State The law of accepts its jurisdiction another State OK © Tous droits réservés CRIDON LYON Version du 18/09/2020 15:02 Succession planning Article 21 Article 22 Law of the last National law habitual residence "broad choice of law" Disposition of property upon death Will Agreement as to succession article 24 article 25 substantive validity substantive validity = expected succession law = expected succession law of the testator's residence (art. 21) of the residence of the person involved (art. 21) of the nationality (art. 22) of the national law of one of the persons "limited choice of law" involved (art. 22) "limited choice of law" © Tous droits réservés CRIDON LYON Version du 18/09/2020 15:02.

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Forum Disputes in Children Matters
Forum Disputes in Children Matters When a dispute arises as to which country should have jurisdiction in relation to matters concerning children, the focus is usually on where the child in question was habitually resident at the time the application was made. Habitual residence is an undefined factual concept which requires analysis on a case by cases basis but which usually looks to establish where the child was living on a regular (or habitual basis) and where they have their centre of interests (e.g. school, doctor etc.). An alternative for resolving jurisdiction disputes, particularly when no international conventions apply, is called forum non conveniens. This literally means ‘an inconvenient forum’ and it can be used to argue that a country should not be dealing with a matter because another country is better placed to do so. This debate arises more often in commercial cases or divorce cases where, for example, the dispute relates to property or people in a different country to where proceedings have been issued. It would therefore be inconvenient for another country to consider the dispute as, for example, they would not easily have access to witnesses or information. Forum non convieniens does not often arise in the context of children proceedings but this is exactly what happened in the recent case of Re K [2019] EWHC 466 (Fam). The Family Court had already established that the child in this case was habitually resident in England & Wales. The child had travelled to India with both parents for a temporary visit, however, the father then seized the child's travel documents and refused to allow him to return to England with the mother.
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In the Supreme Court of the United States
No. 18-935 In The Supreme Court of the United States MICHELLE MONASKY, Petitioner, v. DOMENIC TAGLIERI, Respondent. On Writ of Certiorari to the United States Court of Appeals for the Sixth Circuit BRIEF OF AMICUS CURIAE FREDERICK K. COX INTERNATIONAL LAW CENTER IN SUPPORT OF PETITIONER MICHAEL P. SCHARF DAVID A. CARNEY STEPHEN J. PETRAS, JR. Counsel of Record ANDREW S. POLLIS ELLIOT P. FORHAN AVIDAN Y. COVER BAKER & HOSTETLER LLP ALEKSANDAR CUIC Key Tower THEODORE V. PARRAN, III 127 Public Square, Suite 2000 Frederick K. Cox Cleveland, Ohio 44114 International Law Center (216) 621-0200 Case Western Reserve [email protected] University School of Law 10900 Euclid Ave. Cleveland, Ohio 44106 (216) 368-2000 Counsel for Amicus Curiae i TABLE OF CONTENTS Page INTEREST OF THE AMICUS CURIAE ................. 1 SUMMARY OF ARGUMENT ................................... 2 ARGUMENT ............................................................. 4 I. THE COURT LOOKS TO INTERNATIONAL LAW IN DETERMINING THE SHARED EXPECTATIONS OF TREATY PARTIES. ........... 4 II. THE CHILD ABDUCTION CONVENTION EMPLOYED THE HABITUAL-RESIDENCE CONCEPT TO PROVIDE FLEXIBILITY AND DISCRETION. ......................................... 6 III. UNDER WELL-ESTABLISHED INTERNATIONAL LAW, THE FLEXIBLE APPLICATION OF THE CONVENTION PERMITS A FINDING OF NO HABITUAL RESIDENCE. ............................................... 10 IV. THESE DECISIONS ARE CONSISTENT WITH THE NOTION THAT THE HABITUAL RESIDENCE REQUIREMENT ESTABLISHES A THESHOLD EVIDENTIARY SHOWING ............................. 14 V. THE COURT SHOULD CONDUCT A PLENARY REVIEW OF THE FACTUAL RECORD AND HOLD RESPONDENT DID NOT MEET HIS BURDEN HERE. ................. 21 CONCLUSION ........................................................ 26 ii TABLE OF AUTHORITIES Page(s) Cases A v A (Children: Habitual Residence) [2013] UKSC 60 ....................................... 10, 12, 13 Abbott v. Abbott, 560 U.S. 1 (2010) .............................5 Air France v.
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Succession Regulation 650/2012
20 ELRA Newsletter / 2019 ELRA Newsletter / 2020 21 Succession Regulation by Paula Pott Regulation Nº 650/2012 her will designating her child as Regulation notaries and of Regulation Nº 650/2012, Judgement of the Court of Justice of the European universal heir, such a succession other non-judicial authorities it constitutes an authentic Union (CJEU) in case C-80/19 has a cross border impact. shall rule on disputed facts, instrument which has in Key words: cross border succession; last habitual resi- Therefore, it is a cross border in addition to meeting the another Member State the dence; court; rules of jurisdiction; decision. succession for the purposes of requirements provided for by same evidential value as in Regulation Nº 650/2012. Article 3(2) of the regulation. the Member State of origin or In this judgment, the CJEU By issuing a national certificate the most comparable possible interprets Articles 3(2), 3(1)(g) THE LAST HABITUAL of inheritance, a Lithuanian effects. and (i), 4, 5, 7, 22 and 83(2) and RESIDENCE OF THE notary is not equated to a court In such case, in the light of Paula Pott (4) of Regulation Nº 650/2012. DECEASED MUST BE for the purposes of Article 3(2) Article 59 (1), second paragraph, The following conclusions, in FIXED IN A SINGLE of Regulation Nº 650/2012 of Regulation Nº 650/2012, to addition to the previous case- STATE where, under national law, he use an authentic instrument the forum of Lithuania as the law, can be drawn from this The deceased’s last habitual does not have jurisdiction to in another Member State, it is one competent to decide the decision, clarifying namely, residence within the meaning of rule on disputed facts in matters possible to ask the authority succession, according to Article the notions of cross border Regulation Nº 650/2012 must be of succession but is limited to which issued the document 5 of Regulation Nº 650/2012.
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THE EU SUCCESSION REGULATION No 650/2012
THE EU SUCCESSION REGULATION No 650/2012 The Succession Regulation and existing and future Private International Law issues Friday 11th March 2016 Richard Frimston Solicitor and Notary Public England & Wales European Union The United Kingdom The United Kingdoms, Principality and Province: Scotland Northern Ireland England & Wales Not: Ireland Channel Islands Jersey Guernsey Alderney and Sark Isle of Man Succession Conflicts of Law Conflicts of Law / PIL Analysis • Jurisdiction • Applicable Law (choice of law) • Recognition and Enforcement of judgments • Acceptance and Enforcement of documents European Union . Not a Federation? . Treaties – TEU and TFEU (Protocols 21 and 22) . Regulations – directly applicable EU Law . Directives – EU Law that requires Member State enactment Some European Union Regulations . Brussels I (recast), BI bis . Brussels II bis [to be further recast, applies to, but not within UK] . Rome I . Rome II . Rome III [enhanced co-operation, not Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, Ireland, Netherlands, Poland, Slovakia, Sweden or UK] . Rome IV [not adopted, but to be subject to enhanced co- operation? Ex Brussels III, not UK] . Maintenance Obligations Regulation [does apply within UK] and 2007 Hague Protocol [Ireland but not UK] . Succession Regulation (ex Brussels IV) [not Denmark, UK or Ireland] UK Succession Rights • Deceased dying domiciled in England & Wales, spouse or civil partner and dependants including co-habitants, children can make a claim under Inheritance (Provision for Family and Dependants) Act 1975 • Deceased dying domiciled in Scotland, movables are subject to prior rights for spouse and legal rights for children (subject to possible review?) • Deceased dying domiciled in Northern Ireland, spouse or civil partner and dependants including co-habitants, children can make a claim under Inheritance (Provision for Family and Dependants) Order 1979 Private International Law Formal Validity of Wills .
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Lis Pendes and Forum Non Conveniens at the Hague Conference
Brooklyn Journal of International Law Volume 26 | Issue 3 Article 24 1-1-2001 Lis Pendes and Forum Non Conveniens at the Hague Conference: The rP eliminary Draft onC vention on Jurisdiction and Foreign Judgements in Civil and Commercial Matters Martine Stuckelberg Follow this and additional works at: https://brooklynworks.brooklaw.edu/bjil Recommended Citation Martine Stuckelberg, Lis Pendes and Forum Non Conveniens at the Hague Conference: The Preliminary Draft Convention on Jurisdiction and Foreign Judgements in Civil and Commercial Matters, 26 Brook. J. Int'l L. (2001). Available at: https://brooklynworks.brooklaw.edu/bjil/vol26/iss3/24 This Article is brought to you for free and open access by the Law Journals at BrooklynWorks. It has been accepted for inclusion in Brooklyn Journal of International Law by an authorized editor of BrooklynWorks. ARTICLE LIS PENDENS AND FORUM NON CONVENIENS AT THE HAGUE CONFERENCE Martine Stickelberg* I. INTRODUCTION Peter and Julia are both living in Germany. They buy a package tour of Arizona in a travel agency in Berlin. The trav- el is organized by a German tour operator and only German tourists are part of the group. While in Phoenix, Julia negli- gently closes the door of the bus on Peter's hand. Peter suffers from two broken fingers. Can Peter sue Julia in Phoenix Dis- trict Court? Civil law and common law countries have a totally differ- ent approach to the problem. In most civil law countries, the court will look at the statute. If it provides that the place of the wrongful act is a basis for jurisdiction, the court must proceed to consider the case.
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About This Questionnaire 1. Couples Cohabiting Outside Marriage May Face Legal Uncertainties When They Leave the State Where T
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The Concepts of Habitual Residence and Ordinary Residence in Light of Quebec Civil Law, the 1985 Divorce Act and the Hague Conventions of 1980 and 1996
SERVING CANADIANS The Concepts of Habitual Residence and Ordinary Residence in Light of Quebec Civil Law, the 1985 Divorce Act and the Hague Conventions of 1980 and 1996 Family, Children and Youth Section Research Report September 2006 The Concepts of Habitual Residence and Ordinary Residence in Light of Quebec Civil Law, the Divorce Act and the Hague Conventions of 1980 and 1996 Prepared by: Gérald Goldstein LL.D., Full Professor Faculty of Law, Univ. de Montréal Presented to: Family, Children and Youth Section Department of Justice Canada The views expressed in this report are those of the author and do not necessarily represent the views of the Department of Justice Canada. Aussi disponible en français This paper was written in French under the title, Les notions de résidence habituelle et de résidence ordinaire à la lueur du droit civil québécois, de la Loi sur le divorce et des Conventions de La Haye de 1980 et de 1996. This translation was commissioned by the Department of Justice Canada. This report may be reproduced, in part or in whole, and by any means, without charge or further permission from the Department of Justice Canada, provided that due diligence is exercised in ensuring the accuracy of the materials reproduced; that the Department of Justice Canada is identified as the source department; and that the reproduction is not represented as an official version of the original report. © Her Majesty the Queen in Right of Canada, represented by the Minister of Justice and Attorney General of Canada, 2006 TABLE OF CONTENTS OVERVIEW ................................................................................................................................... 1 PART I: HABITUAL RESIDENCE IN QUEBEC LAW AND UNDER THE 1980 AND 1996 HAGUE CONVENTIONS.........................................................
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Cite As: 176 F.Supp.2D 1045)
176 F.Supp.2d 1045 Page 1 176 F.Supp.2d 1045 (Cite as: 176 F.Supp.2d 1045) Remedies Act, § 2 et seq., 42 U.S.C.A. § 11601 et United States District Court, seq. E.D. Washington. [2] Child Custody 76D 806 Anthony TSARBOPOULOS, Petitioner, v. 76D Child Custody Kristi Lee TSARBOPOULOS, Respondent. 76DXI International Issues No. CS-00-0083-EFS. 76Dk806 k. Grave Risk. Most Cited Cases Nov. 19, 2001. Treaties 385 8 Father filed petition under the Hague Convention on 385 Treaties the Civil Aspects of International Child Abduction. 385k8 k. Construction and Operation of Particular The District Court, Shea, J., held that: (1) mother's Provisions. Most Cited Cases removal of parties' children from Greece to United Spousal abuse is a factor to be considered in the de- States was not actionable in a petition for return un- termination of whether the Article 13(b) exception der Hague Convention, and (2) even if Hague Con- under Hague Convention on the Civil Aspects of In- vention was applicable, Article 13(b) exception ternational Child Abduction applicable where grave where grave risk exists that return of child would risk exists that return of child would expose child to expose child to physical or psychological harm was physical or psychological harm applies because of the applicable. potential that the abuser will also abuse the child. International Child Abduction Remedies Act, § Petition denied. 4(e)(2)(A), 42 U.S.C.A. § 11603(e)(2)(A). West Headnotes [3] Child Custody 76D 823 [1] Child Custody 76D 804 76D Child Custody 76DXI International Issues 76D Child Custody 76Dk820 Evidence 76DXI International Issues 76Dk823 k.
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Habitual Residence” Under the Hague Convention on the Civil Aspects of International Child Abduction
Washington University Journal of Law & Policy Volume 33 The Politics of Identity after Identity Politics January 2010 Home Is Where the Heart Is: Determining “Habitual Residence” Under the Hague Convention on the Civil Aspects of International Child Abduction Stephen I. Winter Washington University School of Law Follow this and additional works at: https://openscholarship.wustl.edu/law_journal_law_policy Part of the Law Commons Recommended Citation Stephen I. Winter, Home Is Where the Heart Is: Determining “Habitual Residence” Under the Hague Convention on the Civil Aspects of International Child Abduction, 33 WASH. U. J. L. & POL’Y 351 (2010), https://openscholarship.wustl.edu/law_journal_law_policy/vol33/iss1/12 This Note is brought to you for free and open access by the Law School at Washington University Open Scholarship. It has been accepted for inclusion in Washington University Journal of Law & Policy by an authorized administrator of Washington University Open Scholarship. For more information, please contact [email protected]. Home is where the Heart is: Determining ―Habitual Residence‖ under the Hague Convention on the Civil Aspects of International Child Abduction Stephen I. Winter INTRODUCTION We live in an interconnected world. People move, if not freely, then often with relative ease across international borders. Families, businesses, and national economies are often global in scope. One nation‘s economic crisis can bankrupt nations an ocean away.1 The challenges created by widespread migration often require focused international efforts.2 One such challenge, international parental child abduction, posed a mounting problem for the world community in the latter part of the twentieth century.3 In 1980, faced with this burdensome problem and lacking a uniform method of resolving the resulting legal disputes, twenty-three nations4 assembled in The J.D.
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United States District Court for the Western District of Virginia Harrisonburg Division
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The Hague Convention on International Child Abduction: a Child’S Return and the Presence of Domestic Violence
APPENDIX G The Hague Convention on International Child Abduction: A Child’s Return and the Presence of Domestic Violence Revised and updated in 2014, by Sara Ainsworth, J.D. - October 2014 - This chapter discusses how the Hague Convention on International Child Abduction, and its enabling statute ICARA, have been applied in courts in Washington and around the country. The chapter features an overview of the current law and addresses complex issues courts increasingly face when an abducting parent is also a victim of domestic violence seeking protection from American courts. The chapter includes citations to unpublished Washington cases to demonstrate how Washington courts have considered some of these issues. Special thanks to the members of the Hague Convention Chapter Advisory Committee, Justice Barbara Madsen for her immediate support of the project, Seattle University School of Law’s Access to Justice Institute, and the student volunteers working on the Hague Project. DV Manual for Judges 2015 Appendix G-1 Washington State Administrative Office of the Courts Table of Contents INTERNATIONAL CHILD ABDUCTION AND DOMESTIC VIOLENCE A. Overview 1. Hague Convention and ICARA: General Principles 2. Child Custody in the United States B. Applying the Convention 1. Triggering Scenario 2. Domestic Violence and a Child’s Return C. Jurisdiction 1. International Treaties and the Supremacy Clause D. Proceedings Under the Hague Convention 1. Commencing an Action 2. Preemptive Stay / Dismissal 3. Removal to Federal Court 4. Writs of Habeas Corpus 5. Expedited Nature of Proceedings E. Petitioner’s Prima Facie Case 1. Wrongful Removal 2. Habitual Residence 3. Custody Rights and Rights of Access F.
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