scholarly journals SPECIALIZATION OF JURISDICTION BACK FROM OBLIVION – A NEW ATTENTIVE AND ASSIDOUS APPROACH TO COMPLEX CROSS BORDER FAMILY LAW CASES OR POSSIBLE REVITALIZATION OF ‘MUTUAL TRUST’

2021 ◽  
Author(s):  
Milka Rakočević ◽  
Ilija Rumenov
Keyword(s):  
International Law ◽  
Family Law ◽  
Private International Law ◽  
Mutual Trust ◽  
Legal Systems ◽  
The European Union ◽  
Political Decision ◽  
Cross Border ◽  
Complex Cross ◽  
The Hague

New trend emerges in the quest for establishing real actual trust between the main stakeholders in the complex cross border family law cases, which is providing for concentration of jurisdiction. The Hague Conference of Private International Law (HCCH) and the European Union (EU) are in forefront of establishing concentrating jurisdiction for those proceedings based on limitation of the number of courts in order to solve two problems: to enhance the predictability and the uniformity of the outcomes in these cases and to re-establish the mutual trust on realistic grounds instead of its current notion as a political decision. Such strategy is welcomed since it starts from the bottom and it tends to elevate the trust between the persons concerned in these proceedings and with that it stretches its prerogatives to the top, which is to enhance the trust between the legal systems. Whether it will succeed it depends again on the modalities of its establishment in the national legal systems. Generally, specialization of jurisdiction is frequently considered to be an important reform initiative in improving the development of a successful judicial system which is why it is recognized as a rapidly growing trend regarding the organization of the judiciary systems worldwide. The article will discuss the concepts of specialization of jurisdiction and its possible implementation in the national legal system of Republic of North Macedonia (N. Macedonia) regarding the complex cross border family law cases.

scholarly journals Application of Brussels II bis regulation in exercising the right of access to a child by extended family members

2021 ◽  
Vol 60 (90) ◽  
pp. 189-205
Author(s):  
Radmila Dragišić
Keyword(s):  
European Union ◽  
International Law ◽  
Hague Convention ◽  
Private International Law ◽  
The European Union ◽  
Parental Responsibility ◽  
The Hague ◽  
The Right ◽  
The Hague Convention ◽  
Right Of Access

In this paper, the author explores the sources of European Union Law that regulate one segment of parental responsibility - the right of access to a child. The focal point of research is the transition from the conventional (interstate) regulation of judicial cooperation in marital disputes and parental responsibility issues to the regulation enacted by the European Union institutions, with specific reference to the Brussels II bis Regulation. First, the author briefly points out to its relationship with other relevant international law sources regulating this subject matter: the Hague Convention on the Civil Aspects of International Child Abduction; the Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in the Field of Parental Responsibility and Measures for the Protection of Children; and other international sources of law. Then, the author examines in more detail its relationship with the Brussels II bis recast Regulation, which will be applicable as of 1 August 2022. In addition, the paper includes an analysis of the first case in which the Court of Justice of the European Union (CJEU) decided on the application of the Brussels II bis Regulation, at the request of granparents to exercise the right of access to the child. On the issue of determining the competent court which has jurisdiction to decide on how this right shall be exercised, the CJEU had to decide whether the competent court is determined on the basis of the Brussels II bis Regulation or on the basis of national Private International Law rules. This paper is useful for the professional and scientific community because it deals (inter alia) with the issue of justification of adopting a special source of law at the EU level, which would regulate the issue of mutual enforcement of court decisions on the right of access to the child. This legal solution was proposed by the Republic of France, primarily guided by the fundamental right of the child to have contact with both parents.

Conflicts of jurisdiction in criminal law Lessons from European Civil Procedure

2018 ◽  
Author(s):  
Pietro Ortolani
Keyword(s):  
European Union ◽  
International Law ◽  
Criminal Law ◽  
Civil Procedure ◽  
Private International Law ◽  
The European Union ◽  
Cross Border ◽  
Procedural Law ◽  
Hard Law ◽  
Conflicts Of Jurisdiction

One of the main purposes of private international law is the resolution of conflicts of jurisdiction in civil matters. In the European Union (EU), this goal is pursued by an articulate body of regulations, forming part of what is usually labelled as ‘European procedural law’ or ‘European civil procedure’. In criminal law, by contrast, no such system exists: although Eurojust aims at resolving conflicts of jurisdiction by facilitating the identification of the jurisdiction that should prosecute cross-​border crimes, no hard-​law instrument regulates this matter in a binding fashion.

Part 2 National and Regional Reports, Part 2.2 Asia: Coordinated by Yuko Nishitani and Béligh Elbalti, 36 South Caucasus: South Caucasian Perspectives on the Hague Principles

2021 ◽  
Author(s):  
Kupelyants Hayk
Keyword(s):  
International Law ◽  
Civil Code ◽  
Soft Law ◽  
Private International Law ◽  
Legal Systems ◽  
The South ◽  
South Caucasus ◽  
Customary International Law ◽  
The Hague

This chapter explores South Caucasian perspectives on the Hague Principles. The rules of private international law in all three South Caucasian countries—Armenia, Georgia, and Azerbaijan—are primarily contained in statutes: the Chapter of Private International Law in Armenia (1998) and separate statutes on Private International Law in Azerbaijan (2000) and Georgia (1998). Article 1253(1) of the Armenian Civil Code and Article 1(2) of the Azerbaijani Act provides that the courts may apply international customs in the area of private international law. In so far as the Hague Principles amount to or eventually crystallize into customary international law, the courts may give effect to the Hague Principles in that manner. Before that happens, there is nothing in the legal systems of either of the three jurisdictions preventing the courts from citing for explanatory and persuasive reasons soft law instruments, such as the Hague Principles. That said, stylistically the judgments of the South Caucasian jurisdictions are often drafted in a very concise and skeletal manner. Soft law instruments and commentary might influence the reasoning of the judges, but they would rarely refer to them in the text of the judgment.

Part III Jurisdiction, Foreign Judgments and Awards, 15 Recognition and Enforcement of Foreign Judgments and Arbitral Awards in England—An Introduction

2017 ◽  
Author(s):  
Torremans Paul
Keyword(s):  
International Law ◽  
Family Law ◽  
Trade Association ◽  
Private International Law ◽  
International Agreement ◽  
The European Union ◽  
European Free Trade Association ◽  
Direct Operation ◽  
Recognition And Enforcement ◽  
The Uk

This chapter examines how foreign judgments and arbitral awards are recognised and enforced in England. Unsatisfied foreign judgments and arbitral awards give rise to complicated questions concerning private international law. Owing to the principle of territorial sovereignty, a judgment delivered in one country cannot, in the absence of international agreement, have a direct operation of its own force in another. This chapter first considers the effect given to foreign judgments and arbitral awards before discussing the different regimes governing recognition and enforcement of foreign judgments. In particular, it looks at judgments from outside the European Union and European Free Trade Association (EFTA), judgments from an EU or EFTA state, and judgments from other parts of the UK. It also analyses issues relating to insolvency, family law, and wills and successions and concludes with an overview of rules under which foreign arbitral awards are recognised and enforced.

scholarly journals Legal Aspects of Telepathology

2000 ◽  
Vol 21 (3-4) ◽  
pp. 97-99 ◽  
Author(s):  
Christian Dierks
Keyword(s):  
International Law ◽  
Data Protection ◽  
Data Exchange ◽  
Legal Aspects ◽  
Spatial Distance ◽  
Standards Of Care ◽  
Security Level ◽  
Private International Law ◽  
The European Union ◽  
Cross Border

In some legal surroundings telepathology is considered a breach of registrational barriers. The recommendation of the G 8 states in Europe for required legislation in telemedicine suggests to recognise that the localization of the remote health care professional defines the site not only of licensure but also of liability. This approach must be considered helpful, since it can solve many problems brought about by the doubtful results of private international law and conventions like the European Union (EU) and Lugano Convention. Under today's conditions in private international law it must be considered essential to agree upon a choice of law and stipulate a court of jurisdiction when doing telepathology. However, the opposing aims of insuring the patients claims and avoiding jurisdictions that exceed the local expectations of the medical professional must be reconciled. Data protection and data security are other crucial topics that require attention. Generally speaking, the principles of minimum data exchange, anonymity, pseudonymity and cryptography must be established as a basis for all telepathology procedures. Only when personal data is needed, its use can be legitimated. Written consent of the patient is advised. To guarantee a cross‐border security level the regulations of the EU‐Data Protection Directive need to be transformed into national law. In practise, cross‐border dataflow shall only take place where the security level can be maintained even within the other country. Finally, reimbursement questions must be answered to establish a sound economical basis for telepathology. The spatial distance between the participants may yield the question, whether the service has been rendered to an extent necessary and sufficient for reimbursement. If reimbursement takes place on a cross‐border or cross‐regional level, severe disturbances of the health systems can occur. Regulation schemes or treaties need therefore to be developed to avoid such disturbances and encompass mutual standards of care as well as methods to balance reimbursement.

scholarly journals Private International Law and the African Economic Community: A Plea for Greater Attention

2006 ◽  
Vol 55 (4) ◽  
pp. 911-928 ◽  
Author(s):  
Richard Frimpong Oppong
Keyword(s):  
European Union ◽  
International Law ◽  
Economic Integration ◽  
Private International Law ◽  
The European Union ◽  
Economic Community ◽  
Cross Border ◽  
The Subject ◽  
National Boundaries ◽  
Free Movement Of Persons

Private international law deals with problems that arise when transactions or claims involve a foreign element. Such problems are most frequent in a setting that allows for the growth of international relationships, be they commercial or personal. Economic integration provides such a setting and allows for the free movement of persons, goods, services and capital across national boundaries. The facilitation of factor mobility resulting from economic integration and the concomitant growth in international relationships results in problems which call for resolution using the tools of private international law. An economic community cannot function solely on the basis of economic rules; attention must also be paid to the rules for settling cross-border disputes. Consequently, considerable attention is given to the subject within the European Union (EU)1 and other economic communities.2

scholarly journals Las insolvencias transfronterizas en la Unión Europea: perspectivas jurisprudenciales y retos = Cross-border insolvencies in the European Union: recent case law and new challenges

2019 ◽  
Vol 11 (2) ◽  
pp. 360
Author(s):  
Elisa Torralba Mendiola
Keyword(s):  
European Union ◽  
International Law ◽  
Case Law ◽  
Recent Case ◽  
Private International Law ◽  
The European Union ◽  
Cross Border ◽  
New Challenges ◽  
Insolvency Proceedings

  Resumen: El Reglamento 848/2015, sobre procedimientos de insolvencia regula los problemas de Derecho internacional privado que suscitan las situaciones concursales en el ámbito de la Unión Euro­pea. En este trabajo se analiza la más reciente jurisprudencia del TJUE en materia concursal y los retos que se plantean a día de hoy en el tratamiento de la materia, que ponen de relieve la necesidad de adaptar la aplicación de los textos legales a situaciones políticas –y jurídicas– cambiantes.Palabras clave: insolvencia, cooperación, competencia.Abstract: Regulation 2015/848 on Insolvency Proceedings rules the private international law mat­ters regarding insolvencies within the European Union. This paper analyses the most recent case law of the EUCJ and the challenges actually existing in this area, that evidence the need to adapt the application of the rules to the changing legal and political context.Keywords: insolvency, cooperation, jurisdiction.

scholarly journals The Modern Travelling Merchant: Mobile Communication in International Contract Law

2017 ◽  
Author(s):  
Ulrich G. Schroeter
Keyword(s):  
International Law ◽  
Mobile Communication ◽  
Mobile Communications ◽  
Contract Law ◽  
Recent Attempt ◽  
Private International Law ◽  
Electronic Communications ◽  
Business World ◽  
Cross Border ◽  
The Hague

Contratto e impresa/Europa (2015), pp. 19-43The use of mobile communication devices like mobile phones, smartphones, tablet computers or notebooks with access to the internet has become an everyday phenomenon in today’s business world. However, whenever mobile communications are used for purposes of contract formation, i.e. the mobile dispatch of offers or acceptances, the mobility of the communicating parties raises important difficulties for the application of traditional legal rules: The fact that messages transmitted via phone, e-mail or SMS can be dispatched and received at virtually any place on earth challenges the categories of private international law and international contract law, which are based on the (unspoken) assumption that parties communicate from their home country. The existing legal framework for cross-border contracts therefore hardly takes into account the possibility that parties may move across borders, and that the place of their communications may accordingly vary.The present article addresses the legal difficulties and uncertainties that cross-border mobile communication raises under international rules of law, covering both conflict of laws rules and substantive law rules. It elaborates on the traditional role of the place of communication in this context before scrutinizing how ‘mobility-friendly’ the provisions of the relevant conventions developed by the United Nations, the Hague Conference for Private International Law and other organisations are. In doing so, it critically discusses in particular Article 10(3) of the UN Electronic Communications Convention of 2005, the most recent attempt at regulating mobile communications. Finally, it identifies a number of problems that have hitherto been overlooked (as notably the interaction of Article 10(3) of the UN Electronic Communications Convention with traditional private international law rules on the formal validity of contracts or with Article 3(2) of the Hague Convention on the Law Applicable to International Sales of Goods of 1955), and proposes appropriate solutions.

Part V Family Law, 26 Cross-border Surrogacy

2017 ◽  
Author(s):  
Torremans Paul
Keyword(s):  
Human Rights ◽  
International Law ◽  
Family Law ◽  
Private International Law ◽  
International Level ◽  
Surrogate Mothers ◽  
Cross Border ◽  
Human Fertilisation ◽  
Legal Problems ◽  
The Uk

This chapter examines issues surrounding the regulation of cross-border surrogacy. There is a complete void in the regulation of surrogacy arrangements at the international level, with no specific provisions designed to regulate this emerging area of international family law. In the absence of a global legislative response, highly complex legal problems arise. Among these problems, the key private international law issue is legal parenthood, along with nationality and immigration. This chapter first addresses the issue regarding legal parenthood as it relates to cross-border surrogacy before discussing the diversity in national approaches to surrogacy. It then analyses the UK approach to surrogacy, focusing on ‘section 54’ requirements of Human Fertilisation and Embryology Act 2008 and authorisation of payments to surrogate mothers that exceed the reasonable pregnancy-related expenses, and concludes with an overview of human rights considerations relating to cross-border surrogacy.

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