Droit international général

On 3 December 2024, at 6 pm UK time, Geert Van Calster (KU Leuven) will give a talk on Muscles from Brussels at the Faculty of Laws, University College London. The event will be delivered in a hybrid format and the readers of the blog are welcome to join either in person or on line. […]

In Jaffe & Anor Greybull Capital LLP & Ors [2024] EWHC 2534 (Comm) one of the issues was the applicable law for misrepresentation about the source of funds being injected into a company. Cockerill J, applying Article 4 Rome II and referring to earlier judgments all reviewed on the blog, in the end [300] holds for German law:

In terms of direct damage, damage occurred when those misrepresentations took effect in the minds of those attending the meeting in Germany and were subsequently relied upon. The alleged key decisions were said to have been taken at the November meeting of Wirecard’s Management Board; and this seems to have taken place in Germany. The direct links to Germany are simply much stronger than any links to this jurisdiction.

This echoes Abu Dhabi Commercial Bank v Shetty’s ‘in the case of a misrepresentation or fraud, the locus damni is held to be the place where that misrepresentation is acted upon’ (not a direct quote, rather my summary at the time). I believe this is the right conclusion. It is a stronger justification than [299]’s inclusion of the place where the loss is ultimately held, for instance:

Overall – and despite the clear and careful arguments advanced for the Claimants, I conclude that the preferable analysis is that the applicable law is German Law. There are many immediate factors linking the case to Germany both in terms of direction, causation and ultimate feeling of the loss. By contrast Wirecard is forced to rely on the effects of Side Letter 7. But Side Letter 7 did not immediately cause Wirecard damage and would not inevitably do so. It took a further contingency (administration) and the application of the relevant rules to manifest the chargebacks. The links to England are too derivative (described by the Claimants in closing as manifesting at “the fourth and fifth stages” of the analysis) and too poorly evidenced.

Geert.

https://x.com/GAVClaw/status/1844671980462575965

 

‘Digital Assets in Scots Private Law: Innovating for the Future‘ is a research project led by the University of Aberdeen with collaborators from the University of Edinburgh, University of Dundee (formerly from Edinburgh Napier University) and international law firm CMS. The third workshop of the project examined the Intra-UK and International Dimensions of Digital Assets […]

The Lindemann Fellowship, generously funded by the Lindemann Foundation, is a newly established initiative aimed at supporting promising academics in the field of private international law. The Fellowship’s primary goal is to provide early-career researchers with the opportunity to build a network with academics from all over Europe. Fellows will, in principle, be accepted for […]

I reported on the jurisdictional issues in the Brasilian orange juice cartel before. In Viegas & Ors v Estate of Jose Luis Cutrale & Anor [2024] EWCA Civ 1122 the Court of Appeal has now held on a claim amendment issue viz the continuing claim against some of the defendants (the claim against others having failed the jurisdictional test).

The issue of interest to the blog is first of all the situs of ‘choses in action’, that is, per P. Torreman’s Cheshire, North and Fawcett ‘the right of proceeding to obtain a sum of money or to claim damages’ or an enforcement right vis-a-vis an object (French: ‘une chose’ hence the odd use of ‘choses in action’ in the common law). That situs is fairly easily located if the enforcement relates to a physical object. Things are slightly more complicated when the object is immaterial, such as shares, or financial interests such as investments— which also incidentally explains why the issue often comes up in investment arbitration (the locus of the investment there, determining the applicability or not of a specific BIT or MIT).

In the case at issue, parties agreed on the situs: [77]

“It was common ground before us that the claims which the claimants are seeking to pursue are to be regarded as situate in this jurisdiction. In this connection, the defendants submitted that choses in action such as the claims “generally are situate in the country where they are properly recoverable or can be enforced” (see Dicey, Morris & Collins on the Conflict of Laws, 16th ed., at rule 136) and that the bringing of a claim in a particular jurisdiction reduces it into possession in that jurisdiction. The defendants relied in this respect on Trendtex Trading Corporation v Credit Suisse [1980] QB 629 (affirmed: [1982] AC 679), where Lord Denning MR said at 652:

“The right of action of Trendtex against C.B.N. was a chose in action. It was reduced into the possession of Trendtex by the issue of the writ in the High Court in England. It was situate in England.”

In the course of his oral submissions, [counsel for claimant] confirmed that he accepted that the claims which the claimants are seeking to advance in these proceedings are to be considered to be situate (sic) here.”

Further of interest to the blog is the standing of those claimants which are heirs of the original victims and the relevance of characterisation for same. 639 of the claimants listed across the claim forms bring claims as heirs on the basis that they are entitled to do so under Brazilian law. Some of these are expressly stated in the claim forms to be representing the estates of deceased persons, but in many other instances the claim forms simply give the claimants’ names. Three claimants were granted letters of administration in England and Wales on 11 July 2023, but that long post-dated the issue of the claim forms. None of the relevant claimants had obtained a grant of representation in England and Wales when the claims were instituted.

The first instance judge had concluded that the heirs could not pursue their claims in this jurisdiction in the absence of grants of representation here. “Insofar as the claim is brought before the distribution of assets to the beneficiaries”, she said [198], “this stage is the administration of the estate and an English grant is required in order for the heirs to bring the claim and collect the assets on behalf of those entitled to the assets of the estate”. Claimants challenge the Judge’s conclusions. 

This issue is where characterisation comes in: assigning the situation to a specific legal category so as to apply the relevant connecting factor and consequently the correct jurisdictional and applicable law consequences. Characterisation is done by the lex fori (except of courts where it is harmonised, such as, not always successfully, in EU law or the Hague instruments). Reference is made in the judgment to professor Briggs’ ‘pigeon holing’ analogy: [82]

the available categories are those created by the common law rules of private international law; and the placing within one or more of them is done according by reference to the same rules – for those who find analogies helpful, English law designs the pigeonholes, and an English sorter decides which facts belong in which pigeonhole.

Claimants essentially argue that  what matters for the purpose of characterisation is that the heirs’ claims are not brought as representatives of the estate, but as personal claims of the heirs in respect of the deceased person’s losses. The mere fact that the claim is being pursued in England should not be treated as giving rise to an estate in England so that the pursuit of the claim would have to be treated as being the administration of the estate – which would have required an English grant of representation.

This led on appeal [90] ff to consideration of classic civil law v common law distinctions on the passing of an estate, the need for probate in England etc.

[118]

for the purposes of characterisation, the law of England and Wales distinguishes between, on the one hand, the administration of an estate and, on the other, succession. It is clear, too, that under the law of England and Wales “succession to the movables of an intestate is governed by the law of his or her domicile at the time of his or her death”. If, therefore, the relevant issue is one of succession, Brazilian law must be applicable. The deceased persons from whom the heirs claim to have inherited causes of action were domiciled in Brazil, the causes of action represent “movables” and [counsel for claimants] confirmed that the deceased persons did not make wills extending to those causes of action.

Newey LJ [120]:

In broad terms, it seems to me that, under the law of England and Wales, matters relating to the collection of a deceased person’s assets and the payment of debts are considered to relate to the “administration of estates” and the distribution of assets after that is considered to relate to “succession”.

and [123-124]

If, as I consider to be the case, the collection of a deceased person’s assets and the payment of debts must be distinguished from the distribution of assets after that, the question whether the heirs have title to sue must, I think, fall to be treated as one relating to the administration of the deceased persons’ estates rather than one of succession. While a person’s assets are immediately and automatically transmitted to his heirs under Brazilian law and, on the Judge’s findings, an heir can bring proceedings relating to the estate, an heir does not acquire an “individualised interest” until “sharing”. Up to that point, any claim that an heir makes is “in defence of the common patrimony”, “the common heritage” and “the whole inheritance” …. Heirs can doubtless be expected to bring proceedings in their own interests, but “the proceeds awarded to the heir in the legal proceedings will not be considered, automatically, as personal patrimony of that heir” (in [expert’s] words). A particular heir may find that the fruits of a claim pass to one or more other heirs or are used to discharge debts. It is only when the “sharing” is carried out that an heir obtains an “individualised” absolute interest in an asset which had belonged to the deceased person. It is only then, too, that in the eyes of English law there is “succession” rather than the “administration of estates”.

In the present case, there is no suggestion that any relevant cause of action of a deceased person has been the subject of a “sharing”. As matters stand, therefore, the heirs are, for the purposes of characterisation, to be viewed as seeking to administer the estates of the deceased persons, not as having succeeded to any causes of action of the deceased persons. It follows that Brazilian law is not applicable and that the heirs cannot advance the claims in this jurisdiction without obtaining letters of administration here.

The appeal therefore fails, also nota bene on the question of whether the heirs should be given extension of time to obtain the required letters of administration.

I am not sure I agree. A cause of action of a deceased person, passed on to the heirs, is an asset, whether or not can successfully be acted upon. But I don’t suppose I had the benefit or all the expert evidence etc. Whatever the outcome, the case is an interesting example of the relevance of characterisation.

Geert.

https://x.com/GAVClaw/status/1844653916232774051

This post was contributed by Fabien Marchadier, who is a professor of private international law at the University of Poitiers. On 4 October 2024, the Court of Justice of the European Union delivered its judgment in Case C-633/22 Real Madrid Club de Fútbol v. Société éditrice Le Monde. The judgment explores the relationship between the public policy […]

I signaled the preliminary reference and background here and Kokott AG Opined end of September in C‑393/23 Athenian Brewery SA, Heineken NV v Macedonian Thrace Brewery SA.

Can a person damaged by an infringement of the competition rules sue the company which committed that infringement at the seat of its parent company in another Member State?

The case clearly has echoes of the economic unit theory in EU competition law see eg ENI. On the other hand the CJEU in a MOL v Mercedes Benz, in a judgment issued before the Opinion, did not resort to the economic unit theory in the inverse sense, holding that a mother corporation cannot simply claim its registered office as locus damni in Article 7(2) Brussels Ia jurisdiction when one of its subsidiaries suffered damage resulting from a breach of competition law. (The AG in Athenian Brewery only refers to the Opinion of Emiliou AG in MOL).

(37) ff the AG points to Article 8(1)’s condition of joinders being possible of there is a risk of irreconcilable judgments arising from diverging judgments on the same situation of law and fact, existing in all likelihood where mother and daughter have both been found to have infringed competition law. However less clear (41) is

whether a close connection within the meaning of Article 8(1) of the Brussels Ia Regulation may be present even if the joint liability of the parent company and the subsidiary for the infringement has not yet been established. This may arise in particular in the case of stand-alone actions, which, unlike follow-on actions, cannot be based on a (binding) decision of a competition authority, be this the Commission (Article 16(1) of Regulation No 1/2003) or a national authority (Article 9 of Directive 2014/104).

(43) ff

“the fact in support of the presumption of control that the parent company holds (almost) all of the capital in the subsidiary is such a strong indication of the existence of a close connection between the actions directed against the parent company and the subsidiary for the purposes of Article 8(1) of the Brussels Ia Regulation that no further evidence of the existence of that close connection is usually required (see in this regard section a). That interpretation does not infringe the requirement as to the foreseeability of the court having international jurisdiction… What is more, it ensures the practical effectiveness of Article 8(1) of the Brussels Ia Regulation without leaving open the possibility of the applicant’s being accused of abusive behaviour…”

The AG explains all these elements in turn and I agree with her analysis.  (60) for instance she supports the ‘good forum shopping’ implications of the anchor defendant mechanism:

 It is not a circumvention of the rule of jurisdiction for the injured party to sue the Greek subsidiary too in the place where the Netherlands parent company is domiciled and thereby to remove the former from the jurisdiction of the Greek courts. If, after all, the defendants are domiciled in different Member States, Article 8(1) of the Brussels Ia Regulation allows the applicant to select the place before the courts of which it brings its claim. That freedom of choice includes the possibility for the applicant to bring the dispute only before the court that best suits its interests.

I do wish the CJEU would also recognise the alternative: the misuse of forum shopping using A7(2)’s forum delicti rule, by corporations committing infringement of competition law, as I discuss ia here.

Geert.

EU Private International Law, 4th ed. 2024, 2.516.

Private International Law and Sustainable Development in Asia

Date: 23 November 2024
Venue: Wuhan University School of Law, Conference Hall 120

Zoom link: Meeting ID: 846 5342 1671 Passcode: 206716

22 November 2024

06:00 PM: Conference Dinner

23 November 2024

08:30 – 09:00 AM: Registration and Welcome Coffee

09:00 – 09:05 AM: Opening Remarks

• TANG Zheng, Associate Dean, Wuhan University Academy of International Law and Global Governance

09:05 – 9.15 AM: Welcome Remarks

• HUANG Jin, President, China Society of Private International Law

9:15- 9:35 AM: Keynote Address (Private International Law and Sustainable Development)

• Ralf Michaels, Director, Max Planck Institute for Comparative and International Private Law
• Veronica Ruiz Abou-Nigm, Professor, University of Edinburgh
• Hans van Loon, former Secretary General, HCCH

9:35–9:50 AM: Conference Photo and Coffee Break

9:50 – 10:50 AM: Panel 1: Family/Equality

• Chair: Ralf Michaels
• Panelists
  • CHEN, Rong-Chwan (National Taipei University)
    • Taiwan’s Path toward SDG 5 in Private International Law
  • JOLLY, Stellina; MALLA, Prakriti (South Asian University)
    • International Child Abduction Jurisprudence in India and Nepal: an Evaluation of Gender Consideration in the Attainment of SDG 5
• Discussant
  • NISHITANI, Yuko (Kyoto University)
  • GAN Yong (Wuhan University)
• Q & A

10:50 – 11:05 AM: Coffee Break

11:05-12:05 Panel 2: Migration

• Chair: Hans van Loon
• Panelists
  • NISHITANI, Yuko (Kyoto University)

• • • Migration and SDGs in Family Relationships

• • YANG, Zixuan (Max Planck Institute for Comparative and International Private Law)
    • Sustain the Legal Identity for Intra-Regional Circular Migrants in Asia: From Private International Law towards Openness, Inclusiveness and Equity in the Greater Bay Area
• Discussant
  • Verónica Ruiz Abou-Nigm
  • CHEN Rong-Chwan
• Q & A

12:05 – 01:15 PM: Lunch Break

01:15 – 02:45 PM: Panel 3: The Role of the State

• Chair: Ignacio de la Rasilla, HAN Depei Chair, Wuhan University
• Panelists:
  • MU, Ke (Ocean University of China)
    • State-owned Enterprises’ Role in Marching towards the Sustainable Development Goals
  • FAN, Zihao (Peking University)
    • Cities’ Roles in Transnational Access to Justice and the Sustainable Value therein: An Observation on Jurisdictional Rules of Mainland China
  • ZHOU, Jiabao (University of Amsterdam)
    • Private International Law as Foreign Relations Law? Reorienting Chinese Private International Law towards Sustainable Development
• Discussant:
  • Ralf Michaels
  • HE Qisheng (Peking University)
• Q & A

2:45 – 3:00 PM: Coffee Break

3:00-4:30 Panel 4: Environment/Climate Change

• Chair: Verónica Ruiz Abou-Nigm
• Panelists:
  • CHONG, Adeline; SCHACHERER, Stefanie (Singapore Management University)
    • Extra-territorial Liability and Enforcement: Finding Ways to Tackle Haze Pollution in Southeast Asia
  • BÙI, Thi Quynh Tran (Thuongmai University); NGUYEN, Thi Hong Trinh (Hue University)
    • Exploring the Potential for Climate Change Litigation in Vietnam: A Forward-Looking Assessment
  • REYES, Anselmo (International Judge of the Singapore International Commercial Court, Arbitrator)
    • The Impartial Judge, Climate Change and the Conflict of Laws
• Discussant:
  • Hans van Loon
  • XU Qingkun (Wuhan University)
• Q & A

4:30-5:35 Presentations: The International Framework

• Chair: TANG Zheng
• Panelists:
  • GOH ESCOLAR, Gérardine (HCCH)
    • Private International Law Frameworks for the Digital and Green Economies: Crucial Tools for the Realisation of the United Nations Sustainable Development Goals
  • ZHAO, Ning (HCCH)
    • Navigating Transnational Litigation in Asia: The HCCH’s Contribution to Achieving SDGs through Effective Legal Frameworks
  • ZHU, Lei (Wuhan University)
    • Regulating Global Anti-Competitive Conduct and the Role of Private International Law: Lessons from China
• Discussant:
  • TU Guangjian (Macao University)
• Q & A

5:35-5:40 Closing Remarks

06:00 PM: Conference Dinner

 

 

A Convention on the issue of certificates of matrimonial capacity and capacity to enter into a registered partnership was adopted on 13 September 2024 under the International Commission on Civil Status (ICCS). This is in fact the 35th instrument elaborated in the framework of ICCS. As explained by its Explanatory Report, the Convention builds on […]

Join us online tomorrow for a free seminar on the CISG in Australia, delivered by Dr Benjamin Hayward.

Abstract

Australia adopted the United Nations Convention on Contracts for the International Sale of Goods (CISG) – a treaty intended to harmonise cross-border sale of goods law – in 1989. Australia gives the treaty local effect via a range of State, Territory, and Commonwealth Acts. A problem has arisen, however, with respect to the wording of that legislation. Some Australian courts consider that the treaty only applies, on a provision-by-provision basis, where it is inconsistent with local law. According to international understandings, however, the CISG is intended to displace local law to its subject-matter extent when it applies.

With reference to Australia’s statutory interpretation rules, and the legislative histories preceding the CISG’s adoption in Australia, this seminar identifies a parliamentary intention to apply the CISG in full in Australia. It therefore identifies that Australia intended to adopt the CISG in a manner consistent with its internationally understood effect. This seminar also examines the nature of Australia’s CISG cases to-date, and identifies how future courts can better engage with the treaty in order to realise its objectives of supporting international trade.

Presenter

Benjamin Hayward is an Associate Professor in the Department of Business Law at Monash University. He has published in Australia and internationally in private international law, international commercial arbitration, and the CISG. Ben currently teaches Australian contract law, consumer law and statutory interpretation (amongst other private law topics) at the Monash Business School.

Chair

Cara North is Special Counsel with Corrs Chambers Westgarth Melbourne, and Treasurer of AAPrIL. She practises in international litigation, arbitration and private international law. Cara has worked as a legal officer for the Hague Conference on Private International Law, and for five years as a consultant to the Permanent Bureau of the Hague Conference.

Details

Date and Time: Tuesday 19 November 2024, 5:00pm to 6:00pm (AEDT: GMT+11)*

* ACT, NSW, Tas and Vic; NZ, 7:00pm-8:00pm; SA, 4:30pm-5:30pm; Qld, 4:00pm-5:00pm; NT, 3:30pm-4:30pm; WA, 2:00pm-3:00pm

Online only: Zoom Link

Zoom ID: 879 8362 4800

RSVP: by email to reid.mortensen@usq.edu.au

Anyone is welcome to attend this seminar. There is no cost.

About the Australasian Association of Private International Law

The Australasian Association of Private International Law (AAPrIL) is a group of people committed to furthering the understanding of private international law in Australia, New Zealand and the Pacific region. To lean more, visit our website or follow us on LinkedIn.

The University of Geneva is organising the second edition of the Executive Training on Civil Aspects of International Child Protection (ICPT). For more information, click here.

The University of Geneva’s ICPT, offered by the Children’s Rights Academy, is designed to:

• Explore innovative approaches to uphold the fundamental rights of children in transnational situations
• Learn best practices for supporting unaccompanied minors and displaced children seeking asylum
• Collaborate with experts from various fields to create holistic and effective child protection strategies
• Understand the dynamics of how different organisations and stakeholders can work together to protect children

Programme of the 2nd Round 2024 – 2025:

Module 1: Children’s Individual Rights in Transnational Parental Relationships

28 November 2024, 14:15 – 18:15

Module 2: International and Comparative Family Law

19 December 2024, 14:15 – 18:15

Module 3: Vulnerable Migration

27 February 2025, 14:15 – 18:15

Module 4: Practice of Child Protection Stakeholders: Inter-agency Co-operation in Context

10 April 2025, 14:15 – 18:15

On 12 December 2024 the University of Milan will host a conference, in English, titled The Enforcement of the ESG Principles in a Transnational Dimension: Jurisdiction and Applicable Law, under the scientific direction of Stefania Bariatti, Luigi Fumagalli, Zeno Crespi Reghizzi, Michele Grassi, Anna Liebman. The first session, chaired by Angelica Bonfanti (University of Milan), […]

Javier Carrascosa González (University of Murcia) and Esperanza Castellanos Ruiz (University Carlos III of Madrid) kindly accepted the invitation of the editors of the EAPIL blog to prepare a post as special editors of Vol. 16 No. 2 (2024) of Cuadernos de Derecho Transnacional, issued as a special edition dedicated to Studia Amicorum Alfonso-Luis Calvo […]

The Department ‘Law & Anthropology ’ of the Max Planck Institute for Social Anthropology in Halle, Germany, is offering positions in the Max Planck Research Group ‘Transformations in Private Law: Culture, Climate, and
Technology’ headed by Mareike Schmidt for two doctoral students with projects on Cultural Embeddedness of Private Law.

The full advertisement can be found here.

A new issue of ZEuP – Zeitschrift für Europäisches Privatrecht is now available and includes contributions on EU private law, comparative law and legal history, legal unification, private international law, and individual European private law regimes. The full table of content can be accessed here.

The following contributions might be of particular interest for the readers of this blog:

• Chancen und Risiken eines Virtual Registered Office (VRO)
  Stefanie Jung and Anne-Kathrin Haag on the virtualization of the registered office of a business: A virtualisation of the registered office and, possibly also the domestic business address would eliminate the need for a physical connection with the country of registration and thus save effort and costs relating to the establishment of a business. This article explores the opportunities as well as the risks of such a virtualisation. At the same time, the existing requirements for the registered office, the administrative office, the domestic business address, and the business premises will be reflected upon.
• Laloivit-elle? Erste Entwicklungen in der Rechtsprechung zum französischen Lieferkettengesetz
  Laura Nasse on the French Supply Chain Act: The French Supply Chain Act that entered into force on 27.3.2017 is a prime example for national and European legislation in the field of business and human rights. It has inspired the German Supply Chain Act and acted as a benchmark in negotiations on the European Corporate Sustainability Due Diligence Directive. Based on recent case law, this article analyses the impact of the French legislation in practice.
• ECJ on “Quasi-Anti-Suit Injunctions” – Old Wine in New Bottles? – Judgment of the European Court of Justice of 7 September 2023
  Madeleine Petersen Weiner comments on a decision by the ECJ on “Quasi-Anti-Suit Injunctions”.
• Konkretisierung des Orts des Schadenseintritts nach Art. 7 Nr. 2 Brüssel Ia-VO in den sogenannten „Dieselfällen“ – Urteil des EuGH (Neunte Kammer) vom 22.2.2024
  Marko Andjic discusses a decision by the ECJ on the interpretation of Article 7 of the Brussels Ibis regulation concerning the place where the harmful event occurred.

On 4 and 5 December 2024, a conference on the Brussels I bis Regulation will take place in Budapest and online. The event is organized by Balázs Arató, Thomas Garber (Johannes Kepler University Linz), Katharina Lugani (Heinrich Heine University Düsseldorf) and Matthias Neumayr (Johannes Kepler University Linz). The aim is to offer a perspective on […]

Written by Lena-Maria Möller,

College of Law, Qatar University

 

The recent introduction of a civil family law regime in the United Arab Emirates – the first of its kind in the region – has attracted considerable attention, both on this blog and beyond.[1] A key unresolved issue has been the law’s applicability in Abu Dhabi, particularly regarding access for Muslim foreigners to the emirate’s newly established Civil Family Court. Scholars and legal practitioners navigating this new framework have long observed a surprising discrepancy, if not an ideological tension, between the law’s drafters and those interpreting it, especially at the higher court level. Central to this divergence has been whether Abu Dhabi’s Law on Civil Marriage and Its Effects (Law No. 14/2021 of 7 November 2021, as subsequently amended) and its Procedural Regulation (Chairman Resolution No. 8/2022 of 1 February 2022) apply exclusively to non-Muslims or extend also to Muslim foreigners who are citizens of non-Muslim jurisdictions. A recent judgment by the Abu Dhabi Court of Cassation in late October affirmed jurisdiction over Muslim foreigners with dual French-Moroccan nationality, marking a potential shift in personal jurisdiction. This ruling may expand access to a legal framework devoid of religious underpinnings for many Muslim expatriates in the UAE.

 

The Legal Framework

The civil family law regime in the UAE comprises three main legislative components. With the exception of Abu Dhabi, which pioneered a separate non-religious legal framework in late 2021, the Federal Civil Personal Status Code (Law No. 41/2022 of 3 October 2022) governs matters of marriage, divorce, child custody, and inheritance exclusively for non-Muslim citizens and non-Muslim foreigners. The law’s scope is explicitly outlined in Article 1, which clearly differentiates based on religious affiliation rather than nationality.

The earlier local legislation in Abu Dhabi, Law No. 14/2021 of 7 November 2021, initially applied only to non-Muslim foreigners but was soon amended, by Law No. 15/2021 of 15 December 2021, to significantly broaden its scope. Most notably, the terms ‘foreigner’ and ‘non-Muslim foreigner’ were replaced by ‘persons covered by the provisions of this law,’ a concept further clarified in Article 5 of the Procedural Regulations. Under these provisions, the law applies to civil marriage, its effects, and all civil family matters for:

1. Non-Muslim UAE citizens, and
2. Foreign nationals from countries ‘that do not primarily apply Islamic Sharia in personal status matters,’ as determined by the Instruction Guide issued by the Chairman of the Abu Dhabi Judicial Department. For dual citizens, the nationality associated with their UAE residency prevails.

Additionally, the law also applies to marriages concluded in countries that do not primarily apply Islamic Sharia in personal status matters, as outlined in the Instruction Guide (which has yet to be issued), as well as to all marriages conducted under the provisions on civil marriage.

The latter two cases are particularly broad, potentially also covering Muslim citizens who married abroad, yet they are rarely cited by the courts. Judicial discussions tend to focus on paragraph 2 of Article 5, which addresses foreigners from specific non-Muslim jurisdictions. The situation is further complicated by the fact that Law No. 14/2021 also includes jurisdictional provisions and scope-of-application rules, which remain equally ambiguous.[2]

Article 1 of Law No. 14/2021 defines ‘persons covered by the law’ as ‘the foreigner or non-Muslim citizen, whether male or female.’ Unfortunately, the Arabic version of this definition is open to multiple interpretations. This ambiguity arises because the adjective ‘non-Muslim,’ placed after the word ‘citizen’ and set off by commas, could be read as referring either solely to citizens or to both foreigners and citizens. As a result, debates over the phrasing of this definition are a frequent element in pleadings before the Abu Dhabi Civil Family Court.

Moreover, in its amended form, Article 3 of Law No. 14/2021 stipulates that if a marriage has been concluded in accordance with this law, it shall apply with respect to the effects of the marriage and its dissolution. A narrow interpretation of this clause would deny jurisdiction whenever the parties did not marry before the Abu Dhabi Civil Family Court, even if they are non-Muslim foreigners married in a civil ceremony elsewhere. However, it seems clear that the drafters did not intend to exclude this core target group from the law’s jurisdiction. Similarly, it is difficult to imagine that jurisdiction would be automatically assumed in cases involving Arab Muslims – even GCC citizens – who married in a civil ceremony in Abu Dhabi, where the Civil Family Court currently allows civil marriages for all but Muslim citizens of the UAE.

The ambiguity of these clauses grants considerable discretion to the courts, and current case law on personal jurisdiction for Muslim foreigners does not yet indicate a consistent approach or prevailing interpretation. For this reason, the recent judgment by the Abu Dhabi Court of Cassation may indeed mark a turning point in the application of civil family law in Abu Dhabi.

 

Previous Case Law

To date, the most significant ruling by the Abu Dhabi Court of Cassation regarding personal jurisdiction over Muslim foreigners was issued in late April 2024. As discussed on this blog, the judgment denied a French-Lebanese husband and his estranged Mexican-Egyptian wife access to the Abu Dhabi Civil Family Court due to their shared Muslim faith. Initially, the Civil Family Court accepted jurisdiction and, at the husband’s request, dissolved the couple’s brief marriage, a decision that was upheld on appeal. However, the Court of Cassation overturned this ruling, determining that the Civil Family Court lacked jurisdiction based on the parties’ religious affiliation.

This case also highlights the inconsistent, and at times contradictory, approach of the Abu Dhabi Court of Appeal on this issue. The same panel of judges has sometimes upheld jurisdiction in cases involving foreign Muslims, while in other instances, it has denied the application of Law No. 14/2021. The available case law suggests that factors such as whether the individuals are Muslim by birth or by conversion, hold dual citizenship – including that of an Arab country – or have disputed religious affiliations do not consistently influence the court’s jurisdictional decisions.

The Abu Dhabi Civil Family Court generally takes the broadest view of jurisdictional rules, generally affirming that Muslim foreigners may access the court. This stance persists despite frequent jurisdictional challenges by opposing parties in cases involving Muslims, who typically argue that the Muslim Personal Status Court is the proper forum for such disputes. Recently, such arguments have increasingly referenced the Federal Civil Personal Status Code and its exclusive jurisdiction over non-Muslims, a claim likely bolstered by the Court of Cassation’s April 2024 ruling, which disregarded the widely accepted view that the Federal Civil Personal Status Code does not apply in Abu Dhabi.

 

The Abu Dhabi Court of Cassation Judgment of 30 October 2024

The case decided by the Abu Dhabi Court of Cassation in late October involved a French-Moroccan Muslim couple who had married in a civil ceremony in France. Their marriage was dissolved by the Abu Dhabi Civil Family Court in June 2023 at the husband’s request. The wife contested this ruling, arguing that the court lacked both territorial jurisdiction – since their last shared residence was in Dubai – and personal jurisdiction, given their shared Muslim faith. She further contended that ongoing proceedings before the Dubai Personal Status Court, along with a pending divorce case in France, should have precluded the Abu Dhabi Civil Family Court from issuing a ruling. The Abu Dhabi Court of Appeal upheld the divorce decision, leading her to appeal to the emirate’s highest court.

From a personal jurisdiction perspective, the Court of Cassation’s judgment is notable for its textbook-like analysis of what constitutes the effective citizenship of dual nationals. Unlike previous cases before both the Court of Cassation and the Court of Appeal, which largely overlooked this aspect of Article 5(2) of Law No. 14/2021, this ruling explicitly concludes that the parties’ French citizenship takes precedence, as it is the nationality tied to their residency in the UAE. The judgment also addresses the fact that the parties married in a civil ceremony in France, invoking Article 5(3) of Law No. 14/2021. The court explains that, since France does not ‘primarily apply Islamic Sharia in personal status matters,’ the conditions of Article 5(3) are also met.

By confirming personal jurisdiction over the parties based on both Article 5(2) and Article 5(3) of Law No. 14/2021, the judgment marks a turning point in two key respects. First, it establishes the requirement to determine the effective nationality of dual citizens, affirming that no nationality, including that of an Arab-Muslim country, takes precedence unless it is linked to UAE residency. Second, by considering the type and location of the marriage, the court asserts that, from the moment a marriage is concluded, couples effectively select a legal framework – religious or civil/secular – that will govern the marriage’s effects and potential dissolution, and that this choice must be honored in any subsequent legal proceedings. Although this perspective may be open to challenge, it provides greater clarity and legal certainty for foreigners of all faiths residing in the UAE.

 

Outlook

For the sake of legal certainty, it is to be hoped that the Abu Dhabi Court of Cassation will maintain its newly established position. The latest interpretation appears the most plausible, particularly in light of Article 5(2) of the Procedural Regulations. Nevertheless, the current provisions on jurisdiction still leave room for ambiguity regarding the law’s exact scope of application, warranting clarification through reform, given the contradictory case law to date.

First, Article 5 should be revised, including paragraph (3), to specify the court’s jurisdiction over anyone who has entered into a civil marriage. For instance, a rule is needed for cases where a couple has married in both a religious and a civil ceremony. Additionally, the Chairman’s Instruction Guide, or at least a clear list of Muslim jurisdictions whose citizens are excluded from the law’s scope, is urgently needed. It is essential to clarify whether the provision applies equally to Arab Muslims or GCC nationals without dual citizenship who have concluded a civil marriage in a non-Muslim jurisdiction. Second, refining the Arabic versions of Law No. 14/2021 and the Procedural Regulations is crucial to avoid multiple interpretations, such as whether the law applies to ‘non-Muslim foreigners and citizens’ versus ‘foreigners and non-Muslim citizens.’ Finally, with recent legislative changes allowing foreign, non-Arabic-speaking lawyers to appear before the Abu Dhabi Civil Family Court, consistent and official English translations of all relevant statutes are absolutely necessary. Current translations available through various official channels are fragmented and occasionally ambiguous.

 

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[1] See on this blog, Béligh Elbalti, Abu Dhabi Supreme Court on the Applicability of Law on Civil Marriage to Foreign Muslims, idem, The Abu Dhabi Civil Family Court on the Law on Civil Marriage – Applicability to Foreign Muslims and the Complex Issue of International Jurisdiction, and Lena-Maria Möller, Abu Dhabi Introduces Personal Status for non-Muslim Foreigners, Shakes up Domestic and International Family Law. See also, idem, One Year of Civil Family Law in the United Arab Emirates: A Preliminary Assessment, 38 Arab Law Quarterly (2024), 219-234.

[2] It should be noted here that with the introduction of Law No. 14/2021, a dedicated Civil Family Court was established in Abu Dhabi. Family matters falling within the scope of Law No. 14/2021 are exclusively adjudicated in this court, which applies only the civil family law statutes and no other domestic or foreign legislation. Consequently, questions of the court’s jurisdiction and the law’s scope of application are closely intertwined, if not mutually dependent.

I know I have Tweeted that I would add my tuppence on the Court of Appeal at The Hague on Wednesday reversing (English translation of the Court of Appeal here) the first instance judgment in Milieudefensie v Shell.

That judgment had imposed CO2 reduction emissions targets on Shell. (In my post on the first instance judgment I focus on the applicable law, Article 7 Rome II issue; that issue was not appealed).

I then however read my learned colleague and academic neighbour Quinten Jacobs’ most excellent thread on the case and, being a firm believer in progress by assimilation, I am most pleased he has accepted to turn that thread into a post, below (my contribution merely consisted of editing).

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Quick recap: In 2021, the District Court in The Hague ruled upon Milieudefensie’s claim which is based on the overall (tortious) duty of care (A6:162 Dutch Civil Code) that Shell must reduce its CO2 emissions by 45% by 2030 compared to 2019 levels. This was unprecedented. For the first time outside the context of an environmental permit, a court imposed reduction obligations on a private company. Shell argued that this ruling would force the company to halt investments and sell off assets, and it appealed the decision.

In its judgment, the Court of Appeal in The Hague first fairly succinctly summarised  the scientific evidence on climate change, referencing the Greenhouse Gas Protocol, reports from the IPCC, and the IEA. The court also covered several legal instruments, such as the UN Climate Convention, the Kyoto Protocol, the Paris Agreement, and the EU’s Fit for 55 initiative. Additionally, it cited the non-binding “expression of principles” in which the Dutch government and Shell agreed on Shell’s ambition to reduce CO2 emissions by 3.9 megatons.

The ruling then examines the climate targets Shell set for itself over the years, from 1986 to 2024. Notably, Shell’s self-imposed goals frequently shift, sometimes based on emissions, and at other times based on a percentage of its spending on emission-free products.

One interesting point is admissibility. The Court of Appeal confirmed the first instance judgment that “collective claims are inadmissible insofar as they serve the interests of the global population.” However, the interests of current and future generations of Dutch citizens and residents of the Wadden area were deemed “sufficiently similar.” The court found it undesirable that only individual citizens would have to file claims separately.

Shell’s argument that the claim  is a “political issue” does not, according to the Court of Appeal, prevent the claim from being admissible seeing as the claimants—several NGOs—are seeking to assert a “legal duty” allegedly violated by Shell.

On the substantive issues: According to Milieudefensie and other claimants, Shell breaches the “general duty of care,” a duty to act “in a manner befitting society,” which depends on the circumstances of each case. This is akin to what Belgium once called “a bonus pater familias”, now referred to as “a prudent and reasonable person” [in the common law known as the Man on the Clapham Omnibus] and as noted in the case at issue grounded in Article 6:162 of the Dutch Civil Code. Specifically, Shell is accused of violating this standard by infringing on human rights.

One key question is whether protection against dangerous climate change should be regarded as a human right, specifically under the right to life (Article 2 of the ECHR) and the right to privacy (Article 8 of the ECHR). Referring to the Dutch Supreme Court’s Urgenda judgment, the very recent Swiss climate ruling by the European Court of Human Rights- Verein KlimaSeniorinnen Schweiz and Others v. Switzerland , and judgments in Pakistan, Colombia, Brazil, and India (Ranjitsinh and Others/Union of India and Others), as well as UN reports and resolutions, the Court of Appeal concluded [7:17] that

“there can be no doubt that protection from dangerous climate change is a human right.”

This is as such not unexpected yet important to see it confirmed by the Court of Appeal. Additionally and importantly, the court reasoned [7.17] that it is

“primarily up to legislators and governments to take measures to minimise dangerous climate change. That being said, companies, including Shell, may also have a responsibility to take measures to counter dangerous climate change.”

Shell and Milieudefensie have jumped on different sections of that sentence to declare victory.

The confirmation of Shell’s responsibility brings the court to discuss ‘indirect horizontal effect of human rights’ [7.18] ff. Human rights traditionally apply to relations between individuals and the state (so-called ‘vertical applicability’, not between private parties (‘horizontal applicability’) It is generally not possible, for example, to sue a neighbor for their alleged violation of one’s freedom of religious expression (unless a crime such as hate speech is committed). However, the court noted—correctly, in line with accepted legal principles—that human rights can also apply “horizontally,” for instance, between a citizen and a corporation. This can occur via “general private law principles,” such as the duty of care, with human rights considerations incorporated into these broad and general standards.

The court [7.24] identified several factors to determine whether a company breaches this “social standard of care” [which seems to be posited by the Court as that special form of the general duty of care: duty of care, with human rights considerations incorporated, GAVC]:

the seriousness of the threat posed, the contribution to its emergence, and the capacity to contribute to addressing it.

The court referenced several “informal and non-binding agreements” that detail companies’ responsibilities regarding climate, such as the UNGP, OECD guidelines, and ISO guidelines, which Shell has endorsed. [7:26] Even if public regulations do not explicitly compel them to do so, particularly those companies whose products contribute to the climate problem are still expected to help mitigate it.

The Court of Appeal concluded on the issue [7:27]

In summary, the court of appeal is of the opinion that companies like Shell, which contribute significantly to the climate problem and have it within their power to contribute to combating it, have an obligation to limit CO2 emissions in order to counter dangerous climate change, even if this obligation is not explicitly laid down in (public law) regulations of the countries in which the company operates. Companies like Shell thus have their own responsibility in achieving the targets of the Paris Agreement.

The next question is whether a court can impose additional reduction obligations beyond existing legislation.

In this context it is usual to recall the summary by the Court [3.5] of ‘scope emissions’, with reference to the global accounting ‘GHG Protocol’:

– scope 1: direct emissions from installations that are owned or controlled in full or in part by the company;

– scope 2: indirect emissions from third-party installations from which the company purchases electricity, steam or heat for its business activities;

– scope 3: other indirect emissions not included in scope 2 generated in the company’s value chain, including emissions generated from the use or consumption of products the company supplies to third parties, such as other organisations or consumers.

The court observed [7:28] that “a considerable amount of new climate legislation” has been enacted, some after the initial ruling. It cited the updated EU-ETS system, which already covers a significant portion of Shell’s so-called scope 1 and 2 emissions, [7:35] placing them almost entirely beyond the reach of the first instance court’s reduction order. Furthermore, a significant portion of its European scope 3 emissions will fall under the EU-ETS-2 system introduced in 2023. Due to two other directives, CSRD and CSDDD, Shell must also develop a climate transition plan aligned with the Paris Agreement.

Is this sufficient? Not entirely, according to the Court of Appeal [7:53]. These measures are “not exhaustive,” and the duty of care could still lead to a tailored reduction order, though existing legislation should be considered in assessing this duty.

The key question is whether the court imposes a reduction order on Shell. This requires a “threat of a breach of a legal duty.” Regarding scope 1 and 2 emissions, the court was brief: [7:64] no reduction order is imposed, as Shell had largely achieved the 45% reduction target compared to 2019 by the end of 2023 and committed to continue these efforts. There is no “threat of a breach” of a legal duty.

For the remaining scope 3 emissions, the court noted a consensus that emissions must be reduced by a net 45% by 2030 to keep global warming below 1.5°C. However, the court found it could not  specify a particular reduction obligation for Shell Applying a general standard of -45% to Shell is [7:75] “not sufficiently case-specific” [the original Dutch text uses ‘fijnmazig’, best translated by ‘tailored’ in this case, GAVC] given evidence that reduction paths vary by sector and country, as indicated by reports from the IEA and the European Commission. The Court of Appeal [7:75] uses the simple example that

if Shell starts supplying gas to a company that previously obtained its energy from coal (which necessarily comes from a supplier other than Shell), this will lead to an increase in Shell’s scope 3 emissions, but on balance may lead to lower global CO2 emissions. It follows from that example alone that applying the general standard to Shell of a 45% reduction by the end of 2030 (or 35% or 25% in the alternative and further alternative claims) is not sufficiently case-specific.

The court acknowledged that as a major oil company, Shell has a “special responsibility,” but its product mix does not reflect the global product range, making an individual reduction order inappropriate.

[7:82] ff the Court then discusses whether a sectoral reduction target for the oil and gas portfolio is possible. Both Milieudefensie and Shell have enlisted experts who have written reports on this. According to the court, [7:91] “no sufficiently unequivocal conclusion can be drawn from all these sources regarding the required reduction in emissions from the combustion of oil and gas on which to base an order by the civil courts against a specific company.”

The contested assumptions, including the percentages from the IEA, call for “great caution in elevating numbers based on these reports to a legal norm.” It also plays a role that Milieudefensie itself contradicts or qualifies those numbers. According to the court [7:96] the available data do not provide “sufficient support”  to oblige Shell to reduce its CO2 emissions by a certain percentage in 2030.  Therefore, Milieudefensie’s claims are dismissed.

Obiter, the court went on to consider [7.97] ff whether scope 3 reduction obligations would be ‘effective’. Shell argued that if it complied with the reduction order by ceasing sales of fossil fuels from other producers, those companies would simply continue supplying fossil fuels to other buyers, with another company taking over Shell’s trading activities.

Both parties submitted reports from climate scientists on this reasoning. The court concluded that it had not been demonstrated that a reduction obligation imposed on a single company would positively impact the fight against climate change. There was no proven causal link between restricting sales and a reduction in emissions. The court found the “signaling function” of such an order “too speculative.” Core is [7:106]:

The district court rejected Shell’s contention that an obligation to reduce its scope 3 emissions by a certain percentage is not effective on the basis that any reduction in greenhouse gas emissions has a positive effect on combating climate change (paragraph 4.4.49 of the district court’s judgment). This consideration is correct in itself and is also in line with what the Supreme Court considered in the Urgenda judgment (legal ground 5.7.7 and 5.7.8). However, this does not mean that a reduction obligation imposed on a specific company will have such a positive effect, especially if this reduction obligation can also be realised by selling less fossil fuels. After all, in that scenario, the specific company would only disappear from the value chain and the (already produced) fossil fuels would still reach the end consumer via another intermediary. There may be a causal relationship between a production limitation and emission reduction, as assumed by the district court (cf. section 4.4.50 of the district court’s judgment), but Milieudefensie et al. have failed to put forward sufficient grounds to assume that in this case a causal relationship (also) exists between a sales limitation and emission reduction.

This is what Geert referred to as the ‘drug dealer defence’. [And note the obiter and cautious opening which the Court leaves for production obligations, GAVC].

This appears to be a significant barrier for future climate litigation. If only one party is brought before the court, Shell’s argument—that other companies will simply take over its role—could always come into play.

The court’s conclusion: Shell has a responsibility in the climate transition, but this does not translate into a specific reduction order. A single reduction target of 45% for one company is too general, and it has not been demonstrated that such an order would effectively lower (global) emissions. Or, in the Court’s words [7:111]:

While it follows from the foregoing that Shell may have obligations to reduce its scope 3 emissions, this cannot lead to the award of Milieudefensie et al.’s claims on this point. The court of appeal has come to the conclusion that Shell cannot be bound by a 45% reduction standard (or any other percentage) agreed by climate science because this percentage does not apply to every country and every business sector individually. The court has answered in the negative the question whether a sectoral standard for oil and gas can be established on the basis of scientific consensus. This entails that based on the available climate science, it cannot be said that a 45% reduction obligation (or any other percentage) applies to Shell in respect of scope 3. In addition, it could not be established that an obligation on Shell to reduce its scope 3 emissions by a certain percentage is effective, so that, at any rate, Milieudefensie et al. have no interest in their scope 3 claim.

Quinten.

 

 

This post was written by Etienne Farnoux, who is Professor of Private Law at the University of Strasbourg. It is the third contribution to the EAPIL online symposium on the UK Supreme Court Judgment in UniCredit Bank GmbH v RusChemAlliance LLC [2024] UKSC 30. The previous contributions, by Manuel Penades and Faidon Varesis can be found […]