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10 Freedom of Expression and the Right to Respect for Private Life: International Defamation and Invasion of Privacy »

James J. Fawcett, Máire Ní Shúilleabháin, Sangeeta Shah
From: Human Rights and Private International Law
James Fawcett, Máire Ní Shúilleabháin, Sangeeta Shah
This chapter focuses on the right to freedom of expression and the right to respect for private life. In Europe, national laws protect reputation and privacy—interests that may fall to be protected by the right to respect for private life—in different ways. Reputation is protected by an action for defamation; privacy by an action for invasion of privacy. However, there is also a human right to freedom of expression. Therefore, a balance has to be reached between both the right to private life and the right to freedom of expression. The chapter then looks at the impact of these rights on the private international rules that operate in cases of international defamation and invasion of privacy actions.

2 Human Rights, Private International Law, and their Interaction »

James J. Fawcett, Máire Ní Shúilleabháin, Sangeeta Shah
From: Human Rights and Private International Law
James Fawcett, Máire Ní Shúilleabháin, Sangeeta Shah
This chapter discusses the regimes of human rights law and private international law. Human rights are rights that have been recognised as universal to all humans by virtue of their inherent dignity. The current legal framework for protecting these rights operates at both international and national levels, and its application has far-reaching implications. This all-pervasive nature means that any rule of private international law has the potential to raise concerns in the enjoyment of human rights. However, there are rules of private international law in which humans rights can be said to have had an impact or should have an impact. The chapter explores two important aspects of the interaction between the two bodies of law: the issues that arise from the application of human rights law in private international law cases, and the clashes of obligations under human rights law and private international law.

1 Introduction »

James J. Fawcett, Máire Ní Shúilleabháin, Sangeeta Shah
From: Human Rights and Private International Law
James Fawcett, Máire Ní Shúilleabháin, Sangeeta Shah
This introductory chapter provides an overview of the central themes of the book as well as its scope and structure. This book examines the impact of human rights law on private international law and vice versa, with a focus on private international law cases and instruments. Given that it remains unclear whether private international law is compatible with human rights law, the starting point of the analysis is that no human rights instrument has provisions on private international law. Moreover, most international human rights bodies, such as the European Court of Human Rights (ECtHR), are not empowered to interpret private international law rules any more than any other substantive rules of law.

16 Overall Conclusions »

James J. Fawcett, Máire Ní Shúilleabháin, Sangeeta Shah
From: Human Rights and Private International Law
James Fawcett, Máire Ní Shúilleabháin, Sangeeta Shah
This concluding chapter provides some overall conclusions on the impact of human rights law on private international law, and the impact of private international law on human rights law. The right to respect for private and family life has had the greatest effect on particular areas of private international law, specifically on the rules relating to international child abduction as well as parental status. Meanwhile, the right to private life has had a major influence on jurisdiction in international defamation cases. On the other hand, there is little evidence of any impact of private international law on human rights law. Indeed, the rules, principles, and values of private international law have not been absorbed into human rights law.

Preface »

James J Fawcett, Máire Ní Shúilleabháin, Sangeeta Shah
From: Human Rights and Private International Law
James Fawcett, Máire Ní Shúilleabháin, Sangeeta Shah

9 The Prohibition of Discrimination and Private International Law »

James J. Fawcett, Máire Ní Shúilleabháin, Sangeeta Shah
From: Human Rights and Private International Law
James Fawcett, Máire Ní Shúilleabháin, Sangeeta Shah
This chapter discusses the prohibition of discrimination and its impact on jurisdiction and recognition and enforcement of foreign judgments in private international law. One area where discrimination concerns have arisen is that of family law. There is potential for private international law rules in relation to international marriages and the recognition of a foreign status to be impacted by the prohibition of discrimination based on gender. Moreover, the recognition of polygamous marriages and extra-judicial divorces also raises issues in relation to the prohibition of discrimination based on religion. However, these rules have also been impacted by other rights, particularly by the right to respect for private life and family life.

12 Religious Rights and Recognition of Marriage and Extra-Judicial Divorce »

James J. Fawcett, Máire Ní Shúilleabháin, Sangeeta Shah
From: Human Rights and Private International Law
James Fawcett, Máire Ní Shúilleabháin, Sangeeta Shah
This chapter examines the compatibility of the English private international law rules regarding recognition of religious marriages and divorces with the right to freedom of religion. When it comes to assessing the impact of religious rights on English private international law rules there has not been much ‘direct’ impact. Rather, the English private international law rules on marriage and divorce are generally compatible with Article 9 ECHR, which protects the absolute right to hold a particular belief and the freedom to manifest a belief. Moreover, instances of religious discrimination are relatively rare in the modern law. However, English law is significantly out of line with European practice in the balance it strikes between religious and gender interests in its accommodation of overseas religious divorces.

6 The Right to a Fair Trial and Jurisdiction under National Rules »

James J. Fawcett, Máire Ní Shúilleabháin, Sangeeta Shah
From: Human Rights and Private International Law
James Fawcett, Máire Ní Shúilleabháin, Sangeeta Shah
This chapter explores the impact of Article 6(1) ECHR on national rules of jurisdiction. The greatest impact of right to a fair trial concerns can be seen in those civil law jurisdictions which have introduced a forum necessitatis rule into their national rules as a general ground of jurisdiction. In contrast, the effect on the English national rules of jurisdiction has been very limited. There is no forum necessitatis rule in England and generally there has been a lack of judicial support for Article 6(1) ECHR having such an effect. Thus, there has been a noticeable lack of impact of the right to a fair trial on the discretionary element under English law, although the argument has been raised on occasion that using discretionary powers to deny access to the English courts would result in a breach of Article 6(1) ECHR.

4 The Right to a Fair Trial and Jurisdiction under the EU Rules »

James J. Fawcett, Máire Ní Shúilleabháin, Sangeeta Shah
From: Human Rights and Private International Law
James Fawcett, Máire Ní Shúilleabháin, Sangeeta Shah
This chapter examines the impact of the right to a fair trial on jurisdiction under EU rules. The constitutional justification for the introduction of harmonised rules of jurisdiction is to ensure effective access to justice within the EU. The link between access to justice and more generally the right to a fair trial is most apparent in procedural instruments such as the Small Claims Procedure Regulation and the Service Regulation. Indeed, the right to a fair trial has had an impact on specific provisions when denial of jurisdiction results in no trial anywhere, leading to the introduction of a forum necessitatis rule in a number of EU instruments.

8 The Right to a Fair Trial and Private International Law: Concluding Remarks »

James J. Fawcett, Máire Ní Shúilleabháin, Sangeeta Shah
From: Human Rights and Private International Law
James Fawcett, Máire Ní Shúilleabháin, Sangeeta Shah
This chapter analyses the impact of private international law rules on the right to a fair trial, and vice versa. There has been a very limited impact of private international law rules on the right to a fair trial. This is because the private international law regime has often accommodated the interests protected by the right to a fair trial. As a result, there has been a significant lack of cases regarding the operation of private international law rules and the right to a fair trial. Similarly, the impact of the right to a fair trial can be seen to have been distinctly inconsistent in terms of which rules of private international law have been affected and which State’s rules have been affected.

5 The Right to a Fair Trial and Recognition and Enforcement of Foreign Judgments under the EU Rules »

James J. Fawcett, Máire Ní Shúilleabháin, Sangeeta Shah
From: Human Rights and Private International Law
James Fawcett, Máire Ní Shúilleabháin, Sangeeta Shah
This chapter discusses the impact of the right to a fair trial on the recognition and enforcement of judgments under the EU rules. Paragraph 4 of Article 67(1) TFEU (Treaty on the Functioning of the European Union) requires the EU to facilitate access to justice, in particular through the principle of mutual recognition of judicial and extrajudicial decisions in civil matters. In addition, Article 81 TFEU refers to the adoption of measures to ensure effective access to justice. Indeed, a substantial number of instruments have introduced EU rules on recognition and enforcement of judgments and decrees granted in other Member States based on these Treaty provisions or its predecessors. These include the Recast Brussels I Regulation, the European Enforcement Order for uncontested claims Regulation, the European Order for Payment Procedure Regulation, and the European Small Claims Procedure Regulation.

7 The Right to a Fair Trial and Recognition and Enforcement of Foreign Judgments under the Traditional English Rules »

James J. Fawcett, Máire Ní Shúilleabháin, Sangeeta Shah
From: Human Rights and Private International Law
James Fawcett, Máire Ní Shúilleabháin, Sangeeta Shah
This chapter examines the impact of the right to a fair trial on the enforcement and recognition of judgments under national rules, using the traditional English rules as an example. In principle, where Article 6(1) ECHR has indirect effect, the courts of the UK are obliged to refuse recognition and enforcement of the foreign judgment by virtue of their duty under section 6 HRA (Human Rights Act). However, there is uncertainty as to when the indirect effect of Article 6(1) ECHR is engaged: is it only in instances of a flagrant denial of justice or in all circumstances where any of the guarantees afforded by the right to a fair trial are breached? In the absence of a clear instance of a flagrant denial of justice abroad recourse should be had to private international law, as modified to take human rights law more seriously.

3 The Right to a Fair Trial »

James J. Fawcett, Máire Ní Shúilleabháin, Sangeeta Shah
From: Human Rights and Private International Law
James Fawcett, Máire Ní Shúilleabháin, Sangeeta Shah
This chapter presents the main protections for the right to a fair trial. In general terms, the right to a fair trial seeks to protect the interest in maintaining the rule of law and the proper administration of justice. This right has been termed a ‘right to court’ and encompasses the idea of ensuring ‘access to justice’. It includes a right of access to a court, procedural guarantees regarding the conduct of a trial, and enforcement of a final judgment. Article 6(1) ECHR explicitly recognises certain interests that should be protected in the determination of ‘civil rights and obligations’: a fair hearing, a public hearing and judgment, trial within a reasonable time, and determination by an independent and impartial tribunal.

11 The Right to Marry, the Right to Respect for Family Life, the Prohibition on Discrimination, and International Marriage »

James J. Fawcett, Máire Ní Shúilleabháin, Sangeeta Shah
From: Human Rights and Private International Law
James Fawcett, Máire Ní Shúilleabháin, Sangeeta Shah
This chapter explores the impact of the right to marry and the right to respect for family life and the prohibition on discrimination on the English choice of law rules relating to validity of marriage and civil partnership. In their broad outline, the traditional English private international law rules on validity of marriage are reasonably well aligned with Articles 8, 12, and 14 ECHR as they have been interpreted by the ECtHR. The English choice of law rules presuppose a sharp distinction between formal validity on one hand and essential validity (or capacity) on the other, and this bifurcation is reflected in the ECtHR’s recognition of legitimate ‘substantive’ and ‘procedural’ restrictions on marriage. In their detail, however, the English rules are sometimes seriously misaligned with human rights expectations and most of the case law appears to have developed without any awareness of the potential impact of the ECHR.

15 The Right to Property, Foreign Judgments, and Cross-Border Property Disputes »

James J. Fawcett, Máire Ní Shúilleabháin, Sangeeta Shah
From: Human Rights and Private International Law
James Fawcett, Máire Ní Shúilleabháin, Sangeeta Shah
This chapter focuses on the impact of the right to property on English and EU rules of private international law. The right to property protects rights in land, moveable property, and intellectual property and may be engaged in commercial property transactions, State expropriation, inheritance laws, and the adjustment of property rights in family law proceedings. Article 1P1 has exerted relatively little influence on the development of English private international law. In cases where it might be instrumental, it is often not pleaded at all, and even where it is invoked by counsel, the courts have often shown little enthusiasm for exploring its potential impact. Moreover, there is no mention of the right to property in the preambles to the Brussels I Recast and Brussels II bis Regulations, even though both Regulations have the potential to interfere with an individual’s rights as protected by Article 1P1 and Article 17 CFREU.

13 Right to Respect for Family Life and the Rights of the Child: International Child Abduction »

James J. Fawcett, Máire Ní Shúilleabháin, Sangeeta Shah
From: Human Rights and Private International Law
James Fawcett, Máire Ní Shúilleabháin, Sangeeta Shah
This chapter discusses the impact of the right to respect for family life and children’s rights on the private international law on child abduction. The case law of the ECtHR and ECJ in child abduction cases suggests that these courts have sought to achieve a harmonious interpretation of the relevant rules of private international law and applicable human rights law. Clashes of obligations have been avoided, with both courts suggesting that the Hague Child Abduction Convention and Brussels II bis regimes seek to achieve the same aims as the rights to respect for family life, as well as the rights of the child. Indeed, Brussels II bis explicitly recognises human rights and sets out specific mechanisms for protecting the rights of the child and its parents.

14 Right to Respect for Private and Family Life and Related Rights: Parental Status »

James J. Fawcett, Máire Ní Shúilleabháin, Sangeeta Shah
From: Human Rights and Private International Law
James Fawcett, Máire Ní Shúilleabháin, Sangeeta Shah
This chapter examines the treatment of parental status arising from adoption and surrogacy arrangements under English private international law rules and considers their compatibility with human rights law. The case law of the ECtHR suggests that there is a qualified obligation to recognise foreign adoptions under Article 8 ECHR. Indeed, both the ECtHR and English courts have found that Article 8 ECHR considerations support the accommodation of foreign parental status. The primary concern of the courts has been to ensure that the child’s right to establish his or her identity is respected. However, other human rights concerns regarding the desirability of international commercial surrogacy have not been addressed to any significant extent.