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- Preliminary Material
- Preface
- Contents
- Table of Cases
- Table of Statutes (by jurisdiction)
- Table of Statutory Instruments
- Table of Secondary European Legislation
- Table of Treaties, Conventions, and International Instruments
- Abbreviations and Special Terminology
- Main Text
- 1 Introduction
- 2 Human Rights, Private International Law, and their Interaction
- Preliminary Material
- I Introduction
- II Human Rights Law
- 2.02
- 2.03
- 1 The ECHR
- 2 The HRA
- 3 Fundamental Rights Protection in EU Law
- 4 Other International Sources of Human Rights Protection
- 5 Rights in the Common Law
- III Private International Law
- IV The Application of Human Rights Law in Private International Law Cases
- V Issues Arising from the Application of Human Rights in Private International Law Cases
- 2.100
- 1 Can Private International Law Accommodate Human Rights Concerns?
- 2 Is there a ‘Private International Law’ Human Rights Standard?
- 3 Clashes of International Obligations
- VI Conclusion
- 3 The Right to a Fair Trial
- Preliminary Material
- I Introduction
- II Sources of Protection
- III Scope of Protection
- IV The Protected Rights
- V State Obligations
- VI Conclusion
- 4 The Right to a Fair Trial and Jurisdiction under the EU Rules
- Preliminary Material
- I Introduction
- II The Impact of the Right to a Fair Trial on the EU Rules
- 4.02
- 1 The Introduction of EU Rules on Jurisdiction
- 2 Bases of Jurisdiction
- 4.06
- 4.07
- (a) Exorbitant and excessively wide bases of jurisdiction
- 4.08
- (i) Exorbitant or excessively wide jurisdiction under the Brussels system
- (ii) Exorbitant and excessively wide jurisdiction under Brussels II bis
- (iii) The impact of a concern in relation to the right to a fair trial
- (iv) Compatibility with Article 6(1) ECHR
- (v) Compatibility with Article 47 CFREU
- (vi) The solution
- (b) Jurisdiction and the rights of the defence
- (c) Abuse of Article 8(1) Brussels I Recast
- (d) No jurisdiction
- 4.47
- (i) The situations
- (ii) Impact of fair trial concerns
- (iii) Compatibility with Article 47 CFREU
- (iv) Compatibility with Article 6(1) ECHR
- (v) The solution
- (e) No jurisdiction and State immunity
- (f) Jurisdiction and a denial of access abroad
- (g) The extension of jurisdiction to defendants domiciled outside the EU
- (h) Does the Brussels system lead to a denial of a fair trial?
- 3 Declining Jurisdiction
- 4.131
- (a) No fair trial abroad: no judicial exception to lis pendens
- (b) The Brussels I Recast and Gasser
- (c) Abusive tactics and delay: no exception to lis pendens under Brussels I Recast
- (d) No lis pendens rule for arbitration agreements
- (e) Lis pendens and a denial of access to any court
- (f) Ensuring a level playing field for the parties: the procedural background to the first seised rule
- (g) Is the first seised rule inherently unfair?
- (h) The first seised rule and delay
- (i) Denial of access to a court in a Member State in which a related action can be tried
- (j) No impact on the discretion to stay with related actions
- (k) Rejection of forum non conveniens
- (l) An exception to lis pendens where trial takes place in a third state
- 4 Choice of Court Agreements
- 5 Restraining Foreign Proceedings
- 6 Residual Jurisdiction under Brussels II bis
- 7 Small Claims
- 8 Service of Documents
- 4.216
- (a) Upholding the rights of the defence: Art 28(2) Brussels I Recast
- (b) The EC Service Regulation 2007 and the right to a fair trial
- 4.219
- 4.220
- (i) The scope of the EC Service Regulations
- (ii) A refusal to accept service
- (c) The costs of service
- (d) Protection for a defendant not entering an appearance
- (e) Service and appeals
- (f) Service and seisin
- 9 Challenging Jurisdiction
- 10 Taking of Evidence
- III The Impact of the Growing Commitment to EU Fundamental Rights
- IV The Impact of Private International Law on Human Rights Law
- V Conclusion
- 5 The Right to a Fair Trial and Recognition and Enforcement of Foreign Judgments under the EU Rules
- Preliminary Material
- I Introduction
- II The Impact of the Right to a Fair Trial on Recognition and Enforcement of Judgments under the EU Rules
- 5.03
- 5.04
- 1 The Introduction of EU Rules on Recognition and Enforcement of Foreign Judgments and Decrees
- 2 Non-recognition and Enforcement
- 5.07
- (a) The ECtHR and refusal to recognise and enforce a judgment
- (i) The enforcement of local judgments
- (ii) The extension to foreign judgments
- 5.09
- (a) The ECtHR case law on refusal of recognition and enforcement of a foreign judgment
- (b) The ECtHR case law on non-recognition’s lack of impact on recognition and enforcement under the EU rules
- (c) The lack of impact of the ECtHR case law on non-recognition on the ECJ
- (d) What Article 6(1) ECHR requires
- (e) Article 47 CFREU and the refusal to recognise and enforce a judgment granted in another Member State
- 3 Recognition and Enforcement: An Unfair Trial in the Member State of Origin and a Breach of Article 6(1) ECHR
- 5.48
- (a) The case law of the ecthr on indirect effect and the recognition and enforcement of foreign judgments
- (b) Impact of the ECtHR case law on EU private international law
- 4 Recognition and Enforcement: An Unfair Trial in the Member State of Origin and a Breach of EU Fundamental Rights
- 5 The Public Policy Defence
- 5.112
- (a) The Impact of Fair Trial Concerns
- (i) National decisions prior to Krombach : the link with Article 6(1) ECHR
- (ii) Krombach and subsequent case law of the ECJ
- 5.117
- (a) The infringement of a fundamental right
- (b) The identification of fundamental rights
- (c) A manifest breach
- (d) The breach of a fundamental right under the legal system of the Member State addressed
- (e) The influence and application of fundamental rights under the Krombach principle
- (f) The relationship between the Krombach principle and the use of public policy
- (g) The Daimler Chrysler litigation (Gambazzi)
- (iii) National decisions
- (iv) Krombach and the new importance attached in the EU to fundamental rights
- (v) Fair trial concerns under Article 23(a) Brussels II bis
- (b) Compatibility with human rights law?
- 6 An Unfair Trial in the Member State of Origin: Summarising the Solutions
- 7 The Natural Justice Defence
- 8 The Exequatur Procedure and its Relationship with Defences
- 9 The Abolition of Exequatur
- 10 The Abolition of Defences and Their Replacement with Other Safeguards
- 5.250
- (a) Certification in the Member State of origin
- (b) Imposition of minimum standards, certification, and review in the member state of origin
- (c) A review of the decision in the Member State of origin
- 11 The Recast Brussels I Regulation: The Retention of Defences
- 12 Non-harmonisation of National Rules on Recognition and Enforcement
- III The Impact of the Growing Commitment to EU Fundamental Rights
- IV The Impact of Private International Law on Human Rights Law
- V Conclusion
- 6 The Right to a Fair Trial and Jurisdiction under National Rules
- Preliminary Material
- I Introduction
- II The Impact on National Rules
- 6.03
- 1 Exorbitant Bases of Jurisdiction under National Rules
- 6.04
- (a) The definitional problem
- (b) Exorbitant bases of jurisdiction in the EU and the prohibited list
- (c) Other exorbitant bases of jurisdiction?
- (d) Exorbitant bases of jurisdiction in England
- (e) Exorbitant jurisdiction in relation to matrimonial matters and matters of parental responsibility
- (f) Impact of Article 6(1) ECHR concerns
- (g) Compatibility with Article 6(1) ECHR
- (h) The solution
- 2 Jurisdiction and Denying Access Abroad
- 3 No Jurisdiction
- 6.65
- (a) What is being denied
- (b) Impact of human rights concerns
- (c) Compatibility with Article 6(1) ECHR
- (d) The solution
- 4 No Fair Trial in England
- 5 Choice of Court Agreements
- 6 The Discretionary Element in Relation to Jurisdiction
- 6.127
- (a) The Lack of Impact of Human Rights on English Law
- (b) Compatibility with Article 6(1) ECHR
- (c) A new approach
- 6.158
- (i) The hybrid human rights/private international law solution
- (ii) A different result?
- 7 Restraining Foreign Proceedings
- 6.182
- (a) The grant of an injunction
- 6.183
- (i) The lack of impact on English law of a denial of access to the court abroad
- (ii) The impact of Article 6(1) ECHR on the court abroad
- (iii) Compatibility with Article 6(1) ECHR
- (b) The refusal to grant an injunction
- (c) A new approach
- 8 Limitations on Jurisdiction
- 6.243
- (a) State immunity
- 6.244
- 6.245
- 6.246
- (i) The ECtHR and the relationship between State immunity and Article 6(1) ECHR
- (ii) The Charter of Fundamental Rights and State immunity
- (iii) The impact of the right of access to a court on English law
- (iv) Compatibility with Article 6(1) ECHR
- (v) Compatibility with Article 47 CFREU
- (b) Subject matter limitations on jurisdiction
- (c) Act of State
- III Conclusion
- 7 The Right to a Fair Trial and Recognition and Enforcement of Foreign Judgments under the Traditional English Rules
- Preliminary Material
- I Introduction
- II The Impact of the Right to a Fair Trial on the Recognition and Enforcement of Judgments under the Traditional English Rules
- 7.03
- 1 Recognition and Enforcement and No Fair Trial in the Judgment Granting State
- 7.04
- (a) Responsibility of the State of recognition or enforcement for a breach of Article 6(1) ECHR
- (b) The impact of human rights law on recognition and enforcement under the English traditional rules
- (c) Direct impact: adoption of a human rights approach
- (d) Compatibility of the human rights approach with Article 6(1) ECHR
- (e) Indirect impact: defences
- 7.28
- (i) Public policy
- (a) The nature of the defence
- (b) Impact of human rights concerns
- 7.32
- (i) Public policy is informed by human rights law
- (ii) The influence of Krombach
- (iii) Human rights law dictates the result of the application of public policy
- (iv) Public policy is informed by human rights in other areas of English private international law
- (v) Human rights law is used to inform the concept of the interests of justice
- (ii) Lack of substantial justice/natural justice
- (f) Compatibility of the defences with human rights law
- 7.49
- (i) Where there is a refusal to recognise or enforce the foreign judgment
- (ii) Where the foreign judgment is recognised or enforced
- (a) Situations where the private international law defences are not applied
- 7.51
- (i) Recognition and enforcement within the UK
- (ii) The public policy defence cannot be raised
- (iii) A defence should have been applied
- (iv) Limiting the definition of public policy
- (v) The exercise of a discretion to recognise despite a defence applying
- (vi) No natural justice defence to recognition of a talaq divorce
- (b) Compatibility of recognition/enforcement
- (a) Situations where the private international law defences are not applied
- (g) Which approach to apply?
- 2 Non-recognition and Non-enforcement
- 3 Recognition of a Foreign Judgment and Denial of Access to a Court
- III The Impact of Private International Law on Human Rights Law
- IV Conclusion
- 8 The Right to a Fair Trial and Private International Law: Concluding Remarks
- Preliminary Material
- I Introduction
- II Analysis of the Impact of Private International Law Rules on the Right to a Fair Trial
- III Analysis of the Impact of the Right to a Fair Trial on Private International Law Rules
- 1 Which Fair Trial Rights Have Had the Greatest Impact on Private International Law Rules?
- 2 On Which Rules of Private International Law has the Right to a Fair Trial had the Greatest Impact?
- 3 Conclusion on Impact
- IV Reasons for the Varying Levels of Impact of the Right to a Fair Trial on Rules of Private International Law
- 1 Why the Impact of the Right to a Fair Trial has been Limited
- 8.25
- (a) Private international law rules prevent fair trial concerns arising
- (b) Human rights concerns are dealt with under existing principles of private international law
- (c) A failure to realise the importance of human rights in private international law
- (d) Fair trial concerns are outweighed by other concerns
- (e) Not wanting to get involved with the complexities of human rights law
- (f) Getting it wrong
- 2 Why the Impact of the Right to a Fair Trial has been Greater in Relation to Some Rules of Private International Law than in Relation to Others
- 1 Why the Impact of the Right to a Fair Trial has been Limited
- V What the Impact Should Be
- 9 The Prohibition of Discrimination and Private International Law
- Preliminary Material
- I Introduction
- II The Prohibition of Discrimination
- III Jurisdiction
- 1 Is there Discrimination under the EU Rules?
- 9.50
- (a) Discrimination under the Recast Brussels I Regulation
- (b) Discrimination Under the Brussels II bis Regulation
- (i) Discrimination on the basis of nationality
- (ii) Residual jurisdiction
- (c) Is there incompatibility with the right not to be discriminated against?
- (d) The solution
- 2 Discrimination under National Rules
- 1 Is there Discrimination under the EU Rules?
- IV Security for Costs and Human Rights
- V The Applicable Law
- VI Conclusion
- 10 Freedom of Expression and the Right to Respect for Private Life: International Defamation and Invasion of Privacy
- Preliminary Material
- I Introduction
- II Freedom of Expression and the Right to Respect for Private Life
- 1 Freedom of Expression
- 2 The Right to Respect for Private Life
- III Jurisdiction for International Defamation
- 10.45
- 1 The Nature of the Problem
- 2 The Human Rights Background
- 3 Jurisdiction under the EU Rules
- (a) Application of the EU rules in defamation cases
- 10.50
- (i) A defendant domiciled in the EU
- (ii) Jurisdiction under Article 7(2) Recast Brussels I Regulation
- 10.52
- (a) Shevill v Presse Alliance
- 10.53
- (i) The place of the event that gives rise to the damage
- (ii) The place where the damage occurred
- (iii) The territorial limitation in relation to damage
- (iv) The presumption of damage under English law
- (v) ‘Distributed’
- (vi) A disparity in the numbers of copies sold in England and abroad
- (vii) Publication and the English multiple publication rule
- (viii) Libel tourism
- (b) Defamation over the internet
- (b) The impact of human rights law
- (c) Compatibility with the ECHR
- (d) Compatibility with EU fundamental rights law
- (e) The solution
- (a) Application of the EU rules in defamation cases
- 4 Jurisdiction under the Traditional English Rules
- 10.95
- (a) Application of the traditional English rules in defamation cases
- 10.96
- (i) Service within the jurisdiction
- (ii) Service out of the jurisdiction under the tort ground
- (iii) Publication and the English multiple publication rule
- (iv) Publication in England and forum conveniens
- (v) Substantial publication
- (vi) A disparity in the numbers circulated in England and abroad
- (vii) A reputation in England and the claimant’s connections with England
- (viii) The presumption of damage
- (ix) Libel tourism
- (x) Reaction in the US to defamation judgments obtained abroad
- (b) The impact of human rights law
- (c) Compatibility with human rights law
- (d) The Solution
- (i) The adoption of a private international law solution: forum conveniens/forum non conveniens
- (ii) A special statutory jurisdiction rule for defamation
- 10.170
- (a) The background to the Defamation Act
- (b) Section 9(2) Defamation Act
- (c) Does this deal with instances of incompatibility of the common law rules with Article 10 ECHR?
- (d) Does the Defamation Act 2013 meet US concerns in relation to libel judgments?
- (e) An undue restriction on the English courts’ jurisdiction
- (f) Compatibility of the statutory rule with the ECHR
- (g) Interpretation of the statutory rule
- IV The Law Applicable to International Defamation
- 1 The Substantive Law Background
- 2 The Human Rights Background
- 3 The Applicable Law under Traditional English National Rules
- (a) The impact of human rights law
- 10.207
- (i) The English common law tort choice of law rules
- (ii) Retention of the common law tort choice of law rule in England for defamation
- (b) Compatibility with human rights law
- (c) The effect of changes to the rules on jurisdiction
- (d) The use of flexibility under the common law tort choice of law rules
- (a) The impact of human rights law
- 4 The Applicable Law under EU Rules
- V Recognition and Enforcement of Foreign Defamation Judgments
- 1 The Nature of the Problem
- 2 The Human Rights Background
- 3 Recognition and Enforcement under the EU Rules
- 4 Recognition and Enforcement under the Traditional English Rules
- VI International Invasion of Privacy
- VII Conclusion
- 11 The Right to Marry, the Right to Respect for Family Life, the Prohibition on Discrimination, and International Marriage
- Preliminary Material
- I Introduction
- II Applicable Human Rights Law
- 1 The Right to Respect for Private and Family Life
- 11.03
- 11.04
- 11.05
- 11.06
- (a) The protected interests: family life and private life
- (b) Nature of the obligation to ‘respect … private and family life’
- (c) Justification under article 8(2) echr: ‘in accordance with the law’
- (d) Justification under Article 8(2) ECHR: legitimate aim
- (e) Justification under Article 8(2) ECHR: necessity and proportionality
- (f) Article 8 ECHR and immigration control
- (g) Article 8 ECHR, marriage, and private international law
- 2 The Right to Marry
- 11.32
- 11.33
- 11.34
- 11.35
- (a) The protected interest
- (b) Nature of obligations
- (c) Procedural restrictions
- (d) Substantive restrictions
- (e) Other measures affecting the enjoyment of the right to marry
- (f) Proportionality and arbitrariness
- (g) Article 12 ECHR and immigration control
- (h) Article 12 ECHR and private international law
- 3 The Prohibition of Discrimination
- 4 Conclusion
- 1 The Right to Respect for Private and Family Life
- III The Impact of Articles 8, 12, and 14 ECHR on English Choice of Law Rules on Validity of Marriage
- 1 Introduction
- 2 English Choice of Law Doctrine in Outline
- 3 Formal Validity
- 4 Essential Validity
- (a) Introduction
- (b) The role of the law of the forum
- (i) Overview
- (ii) Rule in Sottomayor v de Barros (No 2)
- (iii) Public policy and essential validity
- (iv) Statutory provision for forum policy intervention
- (v) Marriage in England
- (c) Alternatives to the dual domicile test
- (d) Essential validity and civil partnership
- 5 Classification of Marriage and Registered Partnerships
- 6 Polygamy
- IV Conclusion
- 12 Religious Rights and Recognition of Marriage and Extra-Judicial Divorce
- Preliminary Material
- I Introduction
- II Freedom of Religion and Recognition of Religious Marriage and Divorce under English Law
- III Religious Discrimination and Recognition of Religious Marriage and Divorce under English Law
- IV Religious Rights and Recognition of Religious Divorce and Annulment under Brussels II bis
- V Conclusion
- 13 Right to Respect for Family Life and the Rights of the Child: International Child Abduction
- Preliminary Material
- I Introduction
- II Private International Law and Child Abduction
- III Applicable Human Rights Law
- IV The Hague Child Abduction Convention Summary Return System and Human Rights
- 1 Introduction
- 2 Article 8 ECHR
- 13.25
- (a) Efficient enforcement of the Hague child abduction convention
- (b) Correct interpretation of the Hague Child Abduction Convention
- (c) The child’s right to be heard
- (d) The ‘grave risk’ defence and the child’s best interests
- (i) Introduction
- (ii) The Grand Chamber judgment in Neulinger and Shuruk v Switzerland
- (iii) Analysis of the Grand Chamber judgment in Neulinger
- (iv) Likely motivation for Grand Chamber judgment in Neulinger
- (v) Grand Chamber judgment in X v Latvia
- (vi) Analysis of the Grand Chamber judgment in X v Latvia
- (vii) The assessment of ‘grave risk’ under Article 8 ECHR: impact in England
- (viii) Article 8 ECHR, ‘grave risk’, and return to a third country
- 3 Article 6 ECHR
- V The Brussels II bis Regime and Human Rights
- VI Abduction Cases Falling Outside the Scope of the Hague Child Abduction Convention and Human Rights
- VII Conclusion
- 14 Right to Respect for Private and Family Life and Related Rights: Parental Status
- Preliminary Material
- I Introduction
- II Human Rights Law
- 1 Article 8 ECHR and Adoption
- 2 Article 8 ECHR and International Commercial Surrogacy
- 3 Article 12 ECHR and the Right to Found a Family
- 4 International Adoption and Surrogacy and Other ECHR Rights
- 5 The CRC and its Implications for International Adoption and Surrogacy
- 6 International Adoption and Surrogacy and Other Human Rights Instruments
- III The Impact of Human Rights on Private International Law Rules regarding Parental Status
- 1 International Adoption under English Law
- 2 International Commercial Surrogacy under English Law
- (a) Introduction
- (b) Section 54 HFEA: conditions for grant of parental order
- (c) Section 54 HFEA: interpretation
- (d) Section 54 HFEA and Article 8 ECHR
- (e) International commercial surrogacy before the English court: a role for foreign law?
- (f) Reform of English law?
- (g) A possible international instrument?
- IV The Impact of Private International Law Rules Regarding Parental Status on Human Rights
- V Conclusion
- 15 The Right to Property, Foreign Judgments, and Cross-Border Property Disputes
- Preliminary Material
- I Introduction
- II The Right to Property
- III The Impact of the Right to Property on Private International Law Rules
- IV Conclusion
- 16 Overall Conclusions
- Preliminary Material
- I Introduction
- II The Impact of Human Rights Law on Private International Law
- 16.02
- 1 Which Human Rights have had the Greatest and Least Impact on Private International Law Rules?
- (a) Individual rights and overlapping rights
- 16.03
- (i) The right to a fair trial
- (ii) The prohibition of discrimination
- (iii) Freedom of expression and the right to respect for private life
- (iv) The right to marry, the right to respect for private life and family life, and the prohibition of discrimination
- (v) Freedom of religion and the prohibition of discrimination
- (vi) The right to respect for private and family life and the rights of the child
- (vii) The right to property
- (viii) Conclusion
- (b) Rights under the ECHR and the Charter of Fundamental Rights
- (c) Reasons for the varying levels of impact of different human rights
- (a) Individual rights and overlapping rights
- 2 On which Rules of Private International Law have Human Rights had the Greatest and Least Impact?
- 3 Reasons for the Varying Levels of Impact of Human Rights on Private International Law Rules
- 16.39
- (a) The importance of Strasbourg jurisprudence
- (b) Opportunities for impact on EU and national law
- (c) Private international law rules prevent human rights concerns arising
- (d) Human rights concerns are dealt with under existing principles of private international law
- (e) A failure to realise the importance of human rights in private international law
- (f) Human rights concerns are balanced against other concerns
- (g) Not wanting to get involved with the complexities of human rights law
- (h) Getting it Wrong
- 4 What the Impact should Be
- III The Impact of Private International Law on Human Rights Law
- Further Material
- [34.204.174.110]
- 34.204.174.110
