Campbell KC v James Finlay (Kenya) Ltd  CSIH 39
On 7 November 2023 the Inner House of the Court of Session sisted delictual proceedings in Scotland, brought by a group of Kenyan tea planters against their Scottish domiciled employer, to allow a no-fault compensation scheme in Kenya to operate.
The case shows the First Division of the Inner House (Lord President Carloway, Lord Pentland and Lord Doherty) unanimously, in an opinion given by Lord President Carloway, deciding to rely on Paul Beaumont and Peter McEleavy, Anton’s Private International Law (3rd edition, SULI, 2011) as summarising accurately the law on forum non conveniens in Scotland. As is well known the plea of forum non conveniens originated in Scotland and has spread to the United States (see Anton, 1st edition, 1967 at 148-149), England and Wales, and large parts of the Commonwealth (see Anton, 2nd edition, at 213-215 and J Fawcett (ed) Declining Jurisdiction in Private International Law (Clarendon Press, 1995), especially P Beaumont, “Great Britain” at 207-233). The latest view of the highest civil appeal court in Scotland (of course an appeal to the UK Supreme Court in London is possible in civil matters) is not only binding in Scotland but potentially highly persuasive elsewhere.
In the third edition of Anton, Paul Beaumont wrote chapter 8 and attempted to summarise the law on forum non conveniens in Scotland in paragraph 8.410 (the case report in Campbell KC mistakenly cites para 8.409). The summary in paragraph 8.410 in the third edition of Anton is not to be found in earlier editions of Anton (1st, 1967 and 2nd, 1990). In Campbell KC (at para 65) the Inner House quoted most of the paragraph as follows:
“The plea … will be upheld only when there is another available forum which is clearly more appropriate to hear the case than Scotland and it would not be contrary to the interests of justice for the case to be tried in that forum. The appropriateness of the alternative forum is considered first (in terms of the convenience for the parties, the witnesses, the applicable law, … and other non-result-oriented practical factors …) before assessing whether it would be unjust to expect the litigation to take place in the clearly more appropriate forum (here the court can take account of whether the pursuer would be able to afford to bring his claim in that country and whether the courts in that country are sufficiently competent and fair to do justice in the case).”
Immediately after the quotation the Inner House says:
“The court agrees with this summary.”
Applying the law to the facts of the case the Inner House decided that under the first part of the plea of forum non conveniens, Kenya is a clearly more appropriate place to resolve the case. Although the court noted that it is:
“uncommon to sustain the plea when the defenders are, as here, domiciled in Scotland.” (para 65)
it decided (agreeing with the Lord Ordinary) that this is one of the uncommon cases where the first part of the plea should be sustained. They were influenced in this regard by the fact that the law applicable to the dispute (whether held in Kenya or in Scotland) is Kenyan law (see paras 65 and 55) and that:
“The group members [the pursuers] all live in Kenya and the alleged negligence and damage occurred there. The circumstances would require investigations in Kenya. These may relate to evidence which would have to be recovered by court order there.”
The Lord Ordinary had decided not to uphold the plea of forum non conveniens on the basis of the second part of the plea. The Inner House summarised the Lord Ordinary’s reasoning as follows:
“that there was a real risk that the group members would not obtain substantial justice in the event that they were required to litigate at first instance [in Kenya] having regard, inter alia, to the likely expense, a lack of access to lawyers and an absence of legal aid.” (para 66).
The Inner House disagreed with the Lord Ordinary, on the evidence of Kenyan law presented, that the pursuers would need to bring their action at first instance in the Kenyan courts. The Lord Ordinary had decided that musculo-skeletal injuries are excluded from the scope of the no-fault compensation scheme applicable to injuries to workers in Kenya by the Work Injury Benefits Act 2007 (the 2007 Kenyan Act). The Inner House decided that musculo-skeletal injuries (the ones on which the pursuers claims are based) are included within the scope of the no fault compensation scheme provided by the 2007 Kenyan Act (paras 61-64 of the judgment). Therefore, under Kenyan law the pursuers must seek compensation from the Director of Occupational Safety and Health Services under that scheme. This led the Inner House to conclude that:
“The group members will not be able to raise first instance proceedings against the defenders in the [Kenyan courts] because it is incompetent to do so. The identified problems of first instance litigation in the [Kenyan courts] will not arise. The group members have to make applications under the [no fault compensation scheme under the 2007 Kenyan Act] system, which is said to work well and is cost and lawyer free.” (para 67).
The Inner House therefore decided that at the present stage of the dispute there is not a risk of substantial injustice if the Scottish proceedings are sisted and the group members are asked to pursue their no-fault compensation claims under the Kenyan Act 2007:
“the appropriate manner of proceeding is to sist these proceedings pending resolution of the claims under the [Kenyan Act 2007] , including any appeals to the [Kenyan courts], in Kenya. If the court’s construction, or its understanding of the practical operation of the [Kenyan Act 2007], turn out to be ill-founded, or if the … claims were not determined in accordance with the scheme, or if there were to be excessive delay, the court may have to revisit the question of substantial justice and consider whether the sist should be recalled.” (para 69)
So, the Inner House is confident that the group members have access to justice in Kenya because the no-fault compensation scheme there is free, does not require lawyers and appears to work well. However, wisely, in case the Inner House is wrong about access to justice in Kenya for musculo-skeletal injuries it deliberately only sisted (rather than dismissed) the Scottish proceedings so that they could be reopened in the event that access to justice proves not to be possible for the group members in Kenya.
The Inner House rightly concludes that the no-fault compensation scheme in Kenya, if properly applied, is not a denial of access to justice for the group members and therefore is not the basis for upholding the second part of the plea of forum non conveniens which would keep the claim in Scotland even though Kenya is clearly the more appropriate place to resolve the case:
“the court cannot determine, as matters presently stand, that the [Kenyan Act 2007], if it operates as its terms suggest, is not capable of providing substantial justice. The concept of such justice applies to both parties and envelops the general public interest. There is nothing amiss in a nation determining that its existing law of fault based reparation in the employment, or any other, context should be replaced by a no-fault compensation scheme. It can no doubt be argued that some claimants will obtain much less by way of damages than if it were possible to claim for pain and suffering and under the many other heads of loss which are available in Scotland. This is balanced by the certainty which a no-fault system brings and the availability of some compensation for everyone with a work based injury.” (para 69)
An important point made by the Inner House here is that “substantial justice”, perhaps better rendered the “interests of justice” (see Anton, 3rd edn, para 8.410), “applies to both parties and envelops the general public interest” (para 69). When dealing with the second part of the plea of forum non conveniens, the court is trying to protect access to a fair and competent system of justice (see the words carefully chosen by Beaumont to summarise the second part of the plea in Anton, 3rd edn, para 8.410, and endorsed by the Inner House (para 65)). The court is not engaging in a comparative law analysis to see which system will help the pursuers the most or which will give them the fullest remedy. Rather they are trying to protect access to justice by not sending a party to what they have determined to be the clearly more appropriate forum to resolve the dispute, if that clearly more appropriate forum cannot be accessed in practice by that party or will not treat that party’s case fairly and competently.
In this case the Inner House acknowledged (at para 55) that if the delictual claims are ultimately pursued in Scotland they will be subject to Kenyan law by virtue of Article 4 of the Rome II Regulation as it is retained in Scotland post-Brexit. This is because Kenya is the place of damage for the delictual claims made by the group members as the musculo-skeletal injuries took place in Kenya (see Article 4(1) of Rome II) and Scotland is not manifestly more closely connected to the delict than Kenya (so the Article 4(3) exception does not apply) – see the discussion by Paul Beaumont of Article 4 of Rome II in Anton, 3rd edn, paras 14.88-14.121). Given that under Article 15(c) of Rome II the heads of damage are covered by the applicable law (Kenyan law) it is unfortunate that at para 69 the Inner House refers to “heads of loss” that are available in Scotland because in no circumstances would such heads of loss be available in Scotland in this case (see Anton, 3rd edn paras 14.240-14.247).
Professor of Private International Law
University of Stirling
Professor Beaumont gave an invited presentation on the Hague Judgments Convention 2019 on 27th October 2023 at the LSE in a symposium celebrating the life and work of Professor Trevor Hartley, see https://lselaw.events/event/a-symposium-for-trevor-hartley/. This turned out to be an excellent event involving many of the UK’s leaders (and some from further afield) in private international law. In his role as one of the editors of the Journal of Private International Law Paul was able to subsequently agree to the preparation of an issue of the Journal which will be devoted to papers arising from the symposium.
Dr Jayne Holliday and Professor Paul Beaumont were invited to give papers at a conference at the University of Lancaster on 21 June 2023 on Challenges in Contemporary Issues in International Litigation, see https://portal.lancaster.ac.uk/portal/news/article/lancaster-workshop-on-challenges-in-contemporary-international-litigation-21-june-2023. This was an excellent opportunity to engage with colleagues from across the UK on recent developments in private international law. Paul was able to talk about the HCCH Jurisdiction Project – he is a member of the Working Group at the Hague Conference on Private International Law (representing the EU) that is drafting a new Convention on parallel proceedings and related actions. Jayne spoke on ‘The non-recognition of transnational divorces’. This area of research is one that Jayne has already published on in Beaumont and Holliday (eds) A Guide to Global Private International Law (Hart, 2022) in the chapter on divorce. Jayne and Paul are in the process of securing a book contract with Hart Publishing to write a monograph on the Hague Divorce Convention 1970.
In June 2023 Professor Paul Beaumont gave an invited conference presentation at the University of Bonn at a major international conference on the Hague Judgments Convention 2019 with leading academics from all over the world. The conference launched an edited book in the Hart Studies in Private International Law Series of which Paul is the Series Editor. This is Volume 35 in that Series: Matthias Weller, Joao Ribeiro-Bidaoui, Moritz Brinkmann and Nina Dethloff (eds), The HCCH 2019 Judgments Convention; Cornerstones, Prospects, Oulook (Hart Publishing, 2023), 382 pages.
Paul was a member of the drafting committee at the Hague Conference on Private International Law (HCCH) for both the Hague Choice of Court Convention 2005 and the Hague Judgments Convention 2019. His talk at the conference and his chapter in the book explain how the two Conventions dovetail to give comprehensive coverage to all types of choice of court agreements. This is an extremely important area in the development of cross-border trade, as it reduces transaction costs and potential litigation costs for companies and other traders, by having a clear framework for the resolution by courts of cross-border commercial disputes based on party autonomy. His chapter is part of the ‘Cornerstones’ in the book: ‘The Hague System for Choice of Court Agreements: Relationship of the HCCH 2019 Judgments Convention to the HCCH 2005 Convention on Choice of Court Agreements’ 125-141.
Encouragingly the UK Government has very recently decided to become a Party to the Hague Judgments Convention 2019 (following the EU, Ukraine and Uruguay), see https://assets.publishing.service.gov.uk/media/6554c926046ed400148b992a/The_Hague_Convention_Response_to_Consultation__web_.pdf. In the Series Editor’s Preface to the book launched in Bonn (v-viii) Paul set out some ideas as to how the UK should ratify and implement the Convention. It is encouraging to see the UK Government moving forward with ratification and a registration system broadly in line with the suggestions by Paul and separately by the Stirling Private International Law Reseach Cluster in its response to the UK Government Consultation on the Judgments Convention 2019.
Dr Pontian Okoli’s article “Jurisdictional Rule ‘X’ in the Conflict of Laws: Challenges of Policy and Security in Internet Torts with Business Implications” was published in (2023) Georgia Journal of International and Comparative Law 397-460
Adopting a comparative legal approach with a European baseline, this article examines the need to articulate a clear policy with respect to Internet jurisdiction. Any applicable policy should cater to the interests of both developed and developing countries. Building on a foundational analysis with respect to the nature of relevant cases and parties, the article critically examines how best to ascertain appropriate courts to hear defamation cases. This approach is suggested with a view to not only ensuring a necessary and complementary participation by both public and private actors, but also achieving solutions to jurisdictional issues from a pragmatic standpoint.
Dr Helena Raulus has reviewed A Guide to Global Private International Law, edited by Professor Paul Beaumont and Dr Jayne Holliday (Hart 2022) in the Journal of the Law Society of Scotland. Dr Raulus wrote that the book “is an impressive piece of work […] a very informative and thought-provoking contribution to the field of global private international law […] the editors, Paul Beaumont and Jayne Holliday, deserve a special mention. Getting together all these contributions dealing with such highly technical topics and ending up with a such an easily readable volume has taken a lot of work and should be applauded.”
Professor Paul Beaumont was a member of the EU delegation again at the Working Group on Jurisdiction in The Hague in February 2023 helping to draft a new Treaty on conflicts of jurisdiction in parallel proceedings in civil or commercial matters at the Hague Conference on Private International Law (HCCH). The HCCH is the global organisation on private international law made up of 90 States and the EU. Paul was influential in developing a new provision in the draft Treaty on choice of court agreements giving respect to party autonomy which started out as a text developed with two US colleagues (Professor Ron Brand and Paul Herrup), was then agreed as a Working Document submitted to the Jurisdiction Working Group by the EU and the US, and finally was adopted into the draft text of the Treaty in Article 7 of Annex I to the Preliminary Document submitted by the Working Group to the Council of the HCCH for its meeting in March 2023 (see here).
Professor Paul Beaumont is the Series Editor for Hart Studies in Private International Law. In the 34th Volume in the Series, Alexander D J Critchley, The Application of Foreign Law in the British and German Courts, Professor Beaumont, in the Series Editor’s Preface, supports the call by the author for an examination by the Law Commissions in the UK into how the law can be reformed in the different legal systems of the UK to improve the way in which foreign law is proved and applied in the courts in the UK. He adds some flesh to the bones about how such a law reform project should be conducted and then legislated for by the UK Parliament and devolved legislatures.
Engagement – Stirling Law School’s Private International Law Research Cluster recently gave a written response to the UK Ministry of Justice Consultation on whether the UK should become a Party to the Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters of 2 July 2019. The response was prepared by Professor Paul Beaumont, Dr Jayne Holliday and Dr Pontian Okoli. They enthusiastically encouraged the UK to become a Party to the Convention. Professor Beaumont was a member of the EU delegation that negotiated the Convention from its earliest drafts through to it being concluded. The EU and the Ukraine are already Parties to the Convention. If the UK becomes a Party to the Convention it will fill a large gap in the system of recognition and enforcement of judgments between the UK and the Member States of the EU created by Brexit.
Dr Pontian Okoli authored a paper “Corruption in International Commercial Arbitration – Domino Effect in the Energy Industry, Developing Countries, and Impact of English Public Policy” in (2022) 15(2) The Journal of World Energy Law and Business 136.
A major argument is that English courts should strike a balance between the interests of institutions, governments and people when they deal with difficult cases that concern public policy. This is especially so with respect to allegations of corruption when parties seek to enforce foreign obligations emanating from developing countries.
Many congratulations to Neil Brannigan who graduated with an LLB Honours degree in 2021. His Honours dissertation was outstanding and he revised it for publication. It is now published in the April issue of the Journal of Private International Law having got through the double-blind refereeing process successfully. His article is, “Resolving conflicts: establishing forum non conveniens in a new Hague jurisdiction convention” (2022) 18(1) Journal of Private International Law 83-112. It has a real chance of making an impact as it is directed at the Working Group on Jurisdiction at the HCCH (see above) which has begun the work of drafting a possible global treaty on conflicts of jurisdiction.
Dr Pontian Okoli delivered a presentation on the “Conditions for the Enforcement of Foreign Judgments” in the EU. This was at the JUDGTRUST Conference on EU Judgments and Mutual Trust (21-22 April 2022) which took place at the T.M.C. Asser Instituut in The Hague.
Professor Paul Beaumont is one of the key organisers of, and chair of one of the sessions at, the Conflicts of Jurisdiction Conference on 23-24 June 2022, a major international online conference co-sponsored by the Journal of Private International Law, the HCCH and the Singapore Management University. This conference is designed to bring leading academics and policy makers at the HCCH together to help the HCCH Working Group prepare a new treaty on Conflicts of Jurisdiction. The programme is available here.
Professor Paul Beaumont and Dr Jayne Holliday spoke at the Festival of Private International Law at the University of Edinburgh on Monday 16th May to bring the private international law community in Scotland up to date with the private international law activities at the University of Stirling.
In addition, Paul and Jayne were delighted to hold the book launch of their co-edited book P Beaumont and J Holliday (eds), ‘A Guide to Global Private International Law’ (Hart, 2022) at the Festival of Private International Law on Tuesday 17th May. Paul and Jayne co-authored 2 chapters of the book with each other (the introductory and concluding chapters), Jayne co-authored another 3 chapters on Divorce, Child Abduction and Succession, and Paul co-authored another 6 chapters on the HCCH, Pragmatism, Choice of Court Agreements, Recognition and Enforcement of Judgments, Family Agreements, and Maintenance.
“This book provides a substantial overview of the discipline of private international law viewed from a global perspective.
The guide is divided into 4 key sections. Theory, Institutional and Conceptual Framework Issues, Civil and Commercial Law (apart from Family Law) and Family Law.
Each chapter is written by a leading expert(s). The chapters address specific areas/aspects of private international law and consider the existing global solutions and the possibilities of improving/creating them. Where appropriate, the chapters are co-authored by experts from different legal perspectives in order to achieve as balanced a picture as possible.
The range of contributions includes authors from Europe, North America, Latin America, Africa, Asia and Oceania. An essential resource for academics, practitioners and students alike.” See here for more information.
Professor Paul Beaumont and Dr Jayne Holliday were touched to be mentioned by the Secretary General of the Hague Conference on Private International Law (HCCH), Dr Christophe Bernasconi, in his slide ‘Scottish Input at the HCCH’ in the recent Scottish Private International Law Reference Group meeting. Paul has provided his expertise at the HCCH for the past 26 years initially on behalf of the UK and Scotland, and latterly on behalf of the European Union. Jayne would like to thank the HCCH for their contribution to and support of Beaumont and Holliday (eds) A Guide to Global Private International Law (Hart, 2022).
Professor Paul Beaumont is pleased to report a successful end to his six-year role as Chair of the Experts’ Group on Family Agreements Involving Children at the international organisation charged with the progressive unification of private international law – the Hague Conference on Private International Law (HCCH). The HCCH, which has a membership of 90 States and the EU, adopted by consensus a new type of soft law instrument – a ‘Practitioners’ Tool’ – at its Council of General Affairs and Policy (CGAP) meeting in March 2022. The relevant part of CGAP’s Conclusions and Decisions says:
‘CGAP approved the Practitioners’ Tool: Cross-Border Recognition and Enforcement of Agreements Reached in the Course of Family Matters Involving Children, subject to editorial amendments, for publication. With the conclusion of the Experts’ Group’s work, CGAP expressed its gratitude to the Chair, Professor Paul Beaumont’ (see here for details).
Professor Beaumont was a member of the EU delegation at the first meeting of the HCCH Jurisdiction Working Group in February 2022.
From 19-23 September 2022, Professor Paul Beaumont FRSE will continue to represent the EU in the Working Group on Jurisdiction at the Hague Conference on Private International Law (HCCH). The HCCH is the global organisation charged by its Members (91 States and the EU) to work for the “progressive unification of private international law rules”. The Working Group is currently focusing on trying to agree a new Convention regulating cases where the parties are in dispute in civil or commercial matters in the courts of more than one State.
At the annual conference of the Society of Legal Scholars (SLS) at King’s College, London Professor Beaumont succeeded Professor Colin Reid, University of Dundee, as the Convener for Scotland on the Executive Committee of SLS. Dr Jayne Holliday continued to represent Stirling Law School on the Council of the SLS, and Associate Professor Noto La Diega continued to co-convene the Open Section of the Conference.
Professor Paul Beaumont and Dr Jayne Holliday have published an up-to-date account of the private international law of succession in Scotland which, inter alia, analyses the historical development of domicile as the connecting factor for succession in Scotland (coming from a civil law tradition and being exported from Scotland to England and beyond). See Paul Beaumont and Jayne Holliday, “Private International Law of Succession, Scotland” in Stefania Bariatti, Ilaria Viarengo and Francesca Villata (eds) EU Cross-Border Succession Law (Edward Elgar, 2022) 450-469.
Professor Beaumont continued to represent the EU in the global multilateral negotiations on Jurisdiction at the Hague Conference on Private International Law. After the first in-person meeting of the Working Group on Jurisdiction in The Hague in late September 2022 Paul has been involved in informal negotiations between the EU and the US, the EU and Australia, and the EU and Japan with a view to developing proposals before the next Working Group meeting in The Hague in February 2023.
Professor Paul Beaumont attended his first meeting of the Society of Legal Scholars (SLS) Executive in London on 11 November 2022 as the Convener for Scotland. His role is to represent the interests of all Scottish legal academics on the SLS Executive. SLS has around 3000 members and it is the learned society for academic lawyers in the UK and Ireland.
Paul continues to serve on the Royal Society of Edinburgh’s nomination group for new Fellows of the RSE who are under 50. If anyone in any discipline under the age of 50 has achieved the excellence, over a sustained period, expected of a Fellow of the RSE and has sufficient connections with Scotland, please feel free to recommend that person to Paul for consideration.
Dr Pontian Okoli delivered a lecture at the invitation of the Max Planck Institute for Comparative and International Private Law. The lecture, “Negotiating the Enforcement of Obligations: A Comparative Appraisal of Legal and Institutional Impediments“, examined how the African Continental Free Trade Agreement and the Hague Judgments Convention have front-loaded the need to address challenges that undermine the enforcement of obligations in Africa.
Professor Paul Beaumont is pleased to report that in his role as Chair of the Hague Conference on Private International Law’s Experts’ Group on Family Agreements he helped to achieve consensus in the Group meetings late last year on the text of a Practitioner’s Tool. It is hoped this will become a Soft Law instrument if it is adopted by the Council of the Hague Conference in March 2022.
Paul has just received from the Scottish Universities Law Institute (SULI) Council the go ahead to update the standard work on Scots Private International Law with an excellent team of authors, including Dr Jayne Holliday and Dr Pontian Okoli, aiming for publication in 2025.
Dr Pontian Okoli has been appointed as the Chair, Academy and Mentorship Committee of the recently established Indonesia International Arbitration Center. Members of the Advisory Board include Ben Giaretta (Chair, London Branch of the Chartered Institute of Arbitrators) and Professor Maxi Scherer (Queen Mary University of London).
From 11-15 October, Paul was a member of the EU delegation at the HCCH Working Group on Jurisdiction trying to develop an instrument, which would be binding in public international law for those States who ratify or accede to the instrument, regulating parallel proceedings between the same parties relating to the same subject matter in more than one State in civil or commercial matters.
On 14 and 15 September, Professor Paul Beaumont chaired the 5th meeting of the Experts’ Group on Family Agreements involving children where there is an international element, at the international organisation responsible for the progressive unification of private international law rules (the Hague Conference on Private International Law – HCCH). The Experts’ Group made good progress on developing a practitioners’ guide on how the existing HCCH Conventions can be used to facilitate the recognition and enforcement of family agreements involving children across international borders.
On Monday 6 September, Dr Jayne Holliday presented an interdisciplinary paper at the University Association for Contemporary European Studies Conference on ‘EU External Competence in relation to recognition of non-EU divorces‘ with Dr Cleo Davies of the School of Social and Political Science, University of Edinburgh.
In August 2021, Dr Jayne Holliday and Professor Paul Beaumont submitted a very substantial edited book to Hart Publishing for the Hart Studies in Private International Law Series. They have been working on this book for more than 2 years as editors bringing together over 50 contributors from all over the world to produce a state of the art, comprehensive Guide to Global Private International Law. The book has been accepted by Hart and will be published in April 2022. It contains 41 Chapters. Paul is the co-author of 8 chapters and Jayne is the co-author of 5 chapters.
Further to its formation last year, the Nigerian Group on Private International Law held its inaugural programme on Monday 21 June 2021 Dr Pontian Okoli made a presentation: “The Prospects of Ratifying Hague Conventions in Nigeria – A Comparative Interrogation”. The event attracted very important stakeholders including the Secretary General of the Hague Conference on Private International Law who gave the opening remarks. Eminent academics, including Professor Paul Beaumont, also attended and provided key insights. A major aim of the NGPIL is to persuade the Nigerian government to ratify Hague Conventions. Currently, Nigeria has not ratified any of the Hague Conventions and is not a member of the Hague Conference. There is hope that the Nigerian government will be persuaded to do both eventually.
On 11 June 2021, Paul Beaumont gave a major talk to a large international audience assembled for the AMICABLE final conference (hosted in Berlin but delivered by videoconference) on the work of the Experts’ Group on Family Agreements involving Children at the Hague Conference on Private International Law. Paul is the Chair of the Experts’ Group.
Dr Jayne Holliday presented her paper on ‘The age of marriage in Scotland and its international implications’ at the Legal History in Modern Practice Conference on Saturday 23rd May 2021.
Paul Beaumont published the first article in the April issue of the Journal of Private International Law as a culmination of the AHRC project on Private International Law in the UK after Brexit for which he was the Principal Investigator:
P Beaumont, ‘Some Reflections on the Way Ahead for UK Private International Law after Brexit’ (2021) 17(1) Journal of Private International Law 1-17.
Dr Jayne Holliday and Paul combined to write a provocative paper on habitual residence building on case law in the leading Supreme Courts in the world and on the work of the Hague Experts’ Group on Family Agreements in Paul Beaumont and Jayne Holliday, ‘Habitual residence’ in child abduction cases: Hybrid approach is now the norm but how much weight should be given to parental intention?’ (Stirling Law Working Papers 2021/1). The final version is to be published in M Pfeiffer, J Brodec, M Zavadilová, P Bříza (eds) Liber Amicorum Monica Pauknerova (Wolters Kluwer, 2021).
On 6 May 2021 Professor Paul Beaumont gave an invited address to the Northern Irish judges (including their Chief Justice) through their Judicial Studies Board on the implications of Brexit for private international law in Northern Ireland which provoked a lot of questions from the judges during and after the videoconference.
Pontian Okoli was invited to chair a debate session: “Should Awards Annulled at the Seat be Enforced by Courts in other Jurisdictions?” at the Lagos State Chamber of Commerce International Arbitration Centre. The event held on 31 March 2021. The speakers at the session were Prof Horacio Grigera Naón (Director of the Centre on International Commercial Arbitration at the Washington University Washington College of Law) and Funke Adekoya (Senior Advocate of Nigeria – Queen’s Counsel equivalent).
Dr Pontian Okoli co-authored “Judicial Intervention in Arbitration: Unresolved Jurisdictional Issues Concerning Arbitrator Appointments in Nigeria” (2021) Journal of African Law 1-21. Parties find it difficult to determine which Nigerian High Court should intervene in the appointment of arbitrators due to conflicting judicial precedents. This perennial challenge has defied any legal solution. There are implications for international businesses sometimes conducted through multinational companies. Jurisdictional uncertainties are even more complicated for such companies which often lack prior experience with respect to doing business in Nigeria. One argument is that the Federal High Court has additional jurisdiction to appoint arbitrators regardless of which court has jurisdiction concerning the underlying dispute.
Dr Pontian Okoli co-authored the chapter “The HCCH’s Development in Africa” in The Elgar Companion to the Hague Conference on Private International Law (Edward Elgar, 2020). The HCCH aims to unify the rules of private international law. This chapter examines how African countries can achieve greater participation in the important work of the HCCH, with a view to ratifying more Hague Conventions.
The Nigerian Group on Private International Law sets sail. On Thursday 5th of November 2020, the Nigerian Group on Private International Law (“NGPIL”) held its first committee meeting by virtual platform. Forming the Committee of NGPIL were: Dr Pontian Okoli (Lecturer at University of Stirling), Dr Onyoja Momoh (English Barrister at 5 Pump Court; Research Fellow at University of Aberdeen), Dr Abubakri Yekini (Lecturer at Lagos State University), Dr Chukwuma Okoli (Post-Doctoral Researcher at T.M.C Asser Instituut), and Dr Chukwudi Ojiegbe (Contracts Manager at ACE Winches). This new initiative will bring together a unique group of experts with an important ethos: the promotion of private international law in Nigeria.
During an AHRC workshop, Dr Jayne Holliday received good news from the Secretary General of the Hague Conference that her ‘The urgent need for the UK to accept the accessions of EU and Non-EU Contracting Parties to the 1970 Hague Convention on Recognition of Divorces and Legal Separation.’ (Working Paper 2019/1) had had impact and the UK finally corrected this oversight on 28th October 2020.
Professor Paul Beaumont, our PGR Director, published ‘Interaction of the Brussels IIa and Maintenance Regulations with (possible) litigation in non-EU States: including Brexit implications.’ in I Viarengo and F Villata, Planning the Future of Cross-Border Families (Hart, 2020) 331-343.
Professor Beaumont also wrote the Series Editor’s preface for that book at pages vii-ix inter alia showing the impact of Beaumont and McEleavy, The Hague Convention on International Child Abduction(OUP, 1999) on the US Supreme Court decision in Monasky v Taglieri judgment of 25 February 2020.
Law Reform & the Jurisdiction Project at the Hague Conference: Professor Paul Beaumont took part in the latest meeting of the Hague Experts Group on Jurisdiction representing the European Union from 16th – 19th November.
Professor Paul Beaumont’s work was cited by the US Supreme Court. In its recent Monasky v Taglieri decision, the US Supreme Court referred to Professor Beaumont’s research to establish a uniform Interpretation of ‘habitual residence’ in the Hague Child Abduction Convention.
The link for the event is here.
14:00 – 14:10 – The Workshop and its Context
Professor Paul Beaumont (University of Stirling), AHRC Network on UK Private International Law post Brexit: Project Objectives and Workshop Aims
14:10 – 16:00 – Cross-Border Litigation: Specific Issues in some specific sectors
Chair: Alex Layton QC (King’s College London and Twenty Essex)
Dr Jenny Papettas (University of Birmingham), Cross-Border Motor Claims After Brexit
Professor Yvonne Baatz (Centre for Commercial Law Studies, Queen Mary University of London), Brexit and Cross-Border Maritime Disputes
Professor Rob Merkin QC (University of Exeter), Cross-Border Dispute Resolution – Insurance Sector: Brexit Implications
Tom Sprange QC (King & Spalding), High-Value Disputes: A US Law Firm’s Perspective on Brexit
Dr Mihail Danov (University of Exeter), Cross-Border Litigation: New Data, Initial Brexit Implications in England and Wales and Long-Term Policy Choices
Questions and discussion
Programme for 20 November 2020
10:00 – 12:00 Global and Commonwealth Perspectives on Private International Law in the UK after Brexit (not restricted to commercial law)
Chair: Professor Paul Beaumont
Professor Mary Keyes (Griffith University, Australia), How Brexit may affect Commonwealth PIL: A View from Australia
Dr Christophe Bernasconi (Secretary General of the Hague Conference), A Global Perspective from the HCCH – the global international institution on private international law
Iain Mackie (Macfarlanes), A London Law Firm Perspective on international and commonwealth litigation after Brexit
Questions and discussion
13:30 – 15:00 – EU/EEA and Intra-UK Commercial PIL: Brexit Challenges and Opportunities
Chair: Professor Eva Lein (University of Lausanne, Switzerland)
Alex Layton QC, Interim Remedies
Professor Barry Rodger (University of Strathclyde), Re-designing (or not) the UK landscape in relation to PIL: An Intra-UK perspective on Brexit
Lindsey Clegg (Freeths), Re-designing (or not) the UK landscape in relation to PIL: A Regional Law Firm Perspective on Brexit
Questions and discussion
15:20 – 16:50 – Brexit and Cross-Border Competition Litigation
Chair: Professor Barry Rodger
Omar Shah (Morgan, Lewis & Bockius LLP), Brexit and Cross-Border Collective Redress
Nick Frey (Freshfields Bruckhaus Deringer LLP), Brexit – A Defendant’s Perspective on Competition Litigation
Dr Mihail Danov, Cross-Border Competition Litigation: Brexit Opportunities?
Questions and discussion
16.50 – 17.15 Prof Paul Beaumont and Dr Mihail Danov, Concluding Remarks and Next Steps
The presentations and a short report from the event will be available on this site shortly.
We are very pleased to announce that the Private International Law Course (LAWU9P3) here at Stirling has been given accreditation by the Faculty of Advocates. This means that those who have successfully completed the course will not have to sit the Faculty of Advocates exam in International Private Law should they wish to become an Advocate in Scotland. The Faculty of Advocates have also confirmed accreditation for those who sat the course and passed it in 2019/20.
Paul Beaumont FRSE, Professor of Private International Law, University of Stirling
“Habitual residence” is a universal concept established in Hague Conventions, notably on child abduction, and there are different theoretical approaches to its meaning (parental intent, child-centred and the now almost universally accepted middle way of the hybrid approach) which are discussed by academics and in case law outside the EU, notably the Canadian Supreme Court in Office of the Children’s Lawyer v Balev 2018 SCC 16. Habitual residence in child abduction cases deserves to have a global uniform interpretation which cannot just be whatever the CJEU thinks it should mean (invariably without paying any attention to case law and analysis from outside the EU).
In the recent decision of the US Supreme Court in Monasky v Taglieri, judgment of 25 February 2020, Ginsburg J, giving the Opinion on the matters discussed here of eight of the nine members of the Court (Thomas J gave a separate opinion giving less weight to judgments of courts in other Contracting States), shows the internationalist approach to arriving at the uniform interpretation of “habitual residence” in the Hague Child Abduction Convention. She refers to the Perez-Vera official explanatory report on the Convention and concludes that what constitutes “habitual” residence necessitates a “fact-sensitive” inquiry. Ginsburg J crucially supports a key proposition by reference to the case law of three leading courts in the world (the CJEU, Canadian Supreme Court and UK Supreme Court):
What makes a child’s residence “habitual” is therefore “some degree of integration by the child in a social and family environment.” OL v. PQ, 2017 E. C. R. No. C–111/17, ¶42 (Judgt. of June 8); accord Office of the Children’s Lawyer v. Balev,  1 S. C. R. 398, 421, ¶43, 424 D. L. R. (4th) 391, 410, ¶43 (Can.); A v. A,  A. C., ¶54 (2013) (U. K.).
Ginsburg J went on to pay attention to academic commentary on the meaning of “habitual residence” in the Hague Child Abduction Convention in order to come to the US Supreme Court’s overall conclusion that it refers to the child’s “home”:
The Conference deliberately chose “habitual residence” for its factual character, making it the foundation for the Convention’s return remedy in lieu of formal legal concepts like domicile and nationality. See Anton, The Hague Convention on International Child Abduction, 30 Int’l & Comp. L. Q. 537, 544 (1981) (history of the Convention authored by the drafting commission’s chairman). That choice is instructive. The signatory nations sought to afford courts charged with determining a child’s habitual residence “maximum flexibility” to respond to the particular circumstances of each case. P. Beaumont & P. McEleavy, The Hague Convention on International Child Abduction 89–90 (1999) (Beaumont & McEleavy). The aim: to ensure that custody is adjudicated in what is presumptively the most appropriate forum—the country where the child is at home.
The US Supreme Court has given weight to the non-technical term of the child’s “home” to identify the presumptively most appropriate forum to determine child custody issues, ie the child’s habitual residence. This is not an unreasonable approach even in the difficult cases where the child has a residence in more than one country. Beaumont and McEleavy (90) identify that the intention of the drafters was that habitual residence “should designate the forum conveniens for a subsequent merits hearing as to the custody of an abducted child.”
Beaumont and McEleavy go on to say (90):
The ability of habitual residence to identify the most appropriate forum in any given case has traditionally emanated from its largely factual emphasis; [footnote omitted] that is to say, if a person has lived in a particular place over a period of time, notwithstanding short absences, he or she will be deemed to be habitually resident there. Where the period of residence fails to indicate incontrovertibly that it is habitual, it is now accepted that a court may have regard to the intentions of the person concerned. In so doing, it will look for hard evidence that the individual intends to remain, while not indefinitely, for a certain period in the jurisdiction in question.
Of course, the problematic issue in determining the habitual residence of a child is whose intention should we take into account?
No attempt will be made here in this short note to answer this question comprehensively but there are two scenarios where the answer seems clear. When we are dealing with a young child it is widely accepted that the intention of the custodial parent is the key, see Case C-497/10 PPU Mercredi v Chaffe EU:C:2010:829. One other idea that has gained the consensus of the Hague Conference on Private International Law’s Experts’ Group on Family Agreements is that where both of the custodial parents have recently reached a formal agreement on the custody of the child their decision as to where the child should be habitually resident should be determinative provided the child is present there (see Revised draft Practical Guide: Cross-border recognition and enforcement of agreements reached in the course of family matters involving children, Preliminary Document No 4 of January 2019, available at Annex, Explanatory Note, 27):
given that a child does not have any autonomy in determining where he or she lives (and therefore the adult or adults looking after the child at a given time are in fact determining where the child is living) it is important for courts in 1980 Hague Convention cases to give as much effect as possible to the recently established shared wishes of the parents at least where the child is present at the relevant date in the jurisdiction which according to the parents’ agreement is and should remain the child’s habitual residence. In a hybrid approach particular weight should be given to shared parental intention to encourage parents to agree about where their child should live and to avoid one parent being able to effectively unilaterally determine the habitual residence of the child in violation of that parent’s recent agreement with the other parent.
Finally, it is worth remembering that a key part of the uniform interpretation of the Hague Child Abduction Convention is to give effect to the requirement in Article 11 that judicial authorities “shall act expeditiously in proceedings for the return of children.” Ginsburg J gives the US Supreme Court’s support to the idea that the Hague Child Abduction Convention proceedings can achieve the requirement to be “expeditious”, when determining where the child is habitually resident, by:
providing courts with leeway to make “a quick impression gained on a panoramic view of the evidence.” Beaumont & McEleavy 103 (internal quotation marks omitted).
It is worth noting that Beaumont and McEleavy go on to say immediately after this quote that:
To engage in a prolonged assessment of the material facts would be to defeat one of the primary objectives of the Convention. However, given that the assessment of intention might be of significant importance in the determination of whether or not a habitual residence exists, a superficial investigation cannot be regarded as sufficient.
Professor Paul Beaumont has written an article drawing from his experience as a member of the EU delegation throughout the negotiations for the 2019 Judgments Convention and in particular from his experience as Chair of the Informal Working Group dealing with the application of the Convention to Governments.
The working paper is available here.
The final version of the paper is to be published in the (2020) Netherlands International Law Review.
“As is often the case with Hague Conventions, the latest Hague Convention of 2 July 2019 (the Judgments Convention) only applies to “civil or commercial matters”. Therefore, it only applies to judgments relating to a private law matter not to a public law matter. This paper explains how “civil or commercial matters” should be interpreted for the purpose of the 2019 Convention. It also analyses the other provisions in the Convention relevant to Governments on State immunity, the armed forces, law enforcement activities, sovereign debt restructuring and a declaration system permitting States to take some private law matters concerning Governments, Government agencies or natural persons working for a Government or Government agency outside the scope of the Convention for the declaring State.”P. Beaumont ‘Judgments Convention: application to Governments’ (2020) Netherlands International law Review (forthcoming).
We are delighted to announce that the monograph ‘Clawback Law in the Context of Succession‘ by Dr Jayne Holliday and published by Hart Publishing will be available for purchase as a hard copy or as an e-book from May 2020.
“This book offers a global solution for determining the law applicable to a claim to clawback an inter vivos gift from a third party within the context of a succession. The book aims to identify an appropriate and applicable legal framework which supports legal certainty for cross-border estate planning and protects the legitimate expectations of the relevant parties. This is an area of private international law that has yet to be handled satisfactorily – as can be seen by the inadequate treatment of clawback from third parties in the 1989 Hague Convention on the Law Applicable to Succession to the Estates of Deceased Persons, and the 2012 EU Succession Regulation.”J Holliday, Clawback Law in the Context of Succession (Hart, 2020).
Theme by the University of Stirling