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Summary mandatory articles Conflict of laws
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This is a summary of all the mandatory journal articles for conflict of laws. I passed this course with an 8.
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Conflict of laws 2019/2020 (semester 2)Summary of mandatory articles
Table of contents
Child abduction p.2
Jurisdiction p.5
Applicable law: contracts p.9
Applicable law: torts p.12
Recognition and enforcement p.14
Service p.15
Evidence p.17
1
,Child abduction
Michael Bogdan; Marta Pertegás Sender, Concise Introduction to EU Private International Law
(Europa Law Publishing, most recent edition): chapter 5;
Brussels II Regulation also covers parental responsibility - art 2(7)= all rights and duties relating to
the person or the property of a child which are given to a natural or legal person by judgment, by
operation of law or by an agreement having legal effect.
more detailed:
- art 1(2) rights of custody, rights of access, guardianship, curatorship and similar institutions,
designation and functions of any person in charge of the child's person or property or representing or
assisting the child
Jurisdiction: Habitual residence of the child - art 8
Recognition and enforcement art 21-27
- art 23: refusing grounds for recognition, not met fundamental principles of procedure- child not
been given opportunity to be heard
- irreconcilability with another judgment
If a decision involves placing the child in a foster family or institutional care art 56
- special procedure in order to be recognized
P. McEleavy, ‘The European Court of Human Rights and the Hague Child Abduction Convention:
Prioritising Return or Reflection?’, Netherlands International Law Review (62) 2015, p. 365-405;
ABSTRACT 1980 Hague Convention- prompt return of children to their place of habitual residence
- judgment in Neulinger and X v. Latvia
- how can compliance with art 8 ECHR be achieved --> prioritizing return or reflection?
Rationale of 1980 the Hague Convention- return in the best interest of children --> most appropriate
forum
- only in rare circumstances where it wouldn't be in their best interest return was denied
- return to happen promptly
- deter unilateral action (removal)
- effective framework to retain contact with both parents
Wrongful removal and retention was viewed as an action by frustrated fathers who
were not the primary caregiver--> so return would be return to primary caregiver and
status quo ante
Central authority system, emphasis on expedition, breadth of the summary return
mechanism, wide scope of custody rights, exceptions to return are interpreted
restrictively (art 11)
Convention hearing must not be substantive custody hearings but adjudication as to whether the
child’s State of habitual residence will be confirmed as the forum which will determine the child’s
future
challenge in finding the correct equilibrium between the promotion of return and the protection of
individual children
Nature of abduction has changed most wrong removals carried out by primary
caregiver (usually mother)
2
, More positive obligatinos derived from art 8 ECHR
Recognition of rights and legal status of children (UN Convention on the Rights of the
Child 1989)
greater regard should be paid to the interests of abductors where domestic violence is
at issue + prioritize interests of child
Europeanziation of child abduction law
Brussels IIa/ II-bis (is the same)
Main focus on deterrence
In compliance with art 8 ECHR
Bosphorus principle of equivalent protection of human rights- based on mutual trust
courts can assume all European Member States comply with procedural rights -
effectiveness of the AFSJ
In practice child is rarely returned to the State of origin under the Article 11(8)
mechanism
Positive obligations* Article 8 places on Council of Europe States in the matter of
reuniting a parent with his or her child must be interpreted in the light of the Hague
Convention
* to apply the Hague Convention in an effective manner
Maumousseau and Washington v. France
Primary caregiver (mother) complained the French court's interpretation of the grave
risk of harm exception in Article 13(1)(b) Hague Convention had been too restrictive
and her daughter best interests had not been taken into account
Regarding the underlying rationale of the Hague Convention it had to be interpreted
strictly and the child's best interests had been considered
--> clear prioritization of return
Art 13 the Hague convention - wide scope --> 'information relating to the social background of the
child'
apparently unfettered discretion to consider and evaluate issues relevant to the
individual child
If one of the 5 exceptions has been established there is no limit to the discretion of the
court
Once competent authorities in the state of the child's habitual residence provide
information it is obligated to be taken into account --> but no mechanism to ensure its
generation
--> largely nullified by its ambiguity
Art 7 (d) the Hague convention
co-operation between Central Authorities - creates obligation to take all appropriate
measures to exchange information on the social background of the child - limited to
when it is deemed 'desirable'
--> ethos of the Convention not focused on the individual child's best interest
Neulinger v. Switzerland- Swiss appellate court used the provision to direct specific
questions to the requesting Central Authority as to how the child would be cared for if
returned to Israel
- move away from strict application of the Hague Convention policy of return, due to
exceptional circumstances of the wrongful removal --> would have lead to a breach of
the child's right to art 8 ECHR
- emphasis on rights of the individual child and Article 3(1) UNCRC
3
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