Category: International

Mozes v Mozes: 9 Jan 2001

United States Court of Appeals, Ninth Circuit

Judges:

KOZINSKI and THOMAS, Circuit Judges, and ILLSTON, District Judge

Citations:

[2001] USCA9 16, 239 F.3d 1067 (9th Cir. 2001)

Links:

Worldlii

Statutes:

Hague Convention on the Civil Aspects of International Child Abduction

Jurisdiction:

United States

Cited by:

Cited – A v A and another (Children) (Children: Habitual Residence) (Reunite International Child Abduction Centre intervening) SC 9-Sep-2013
Acquisition of Habitual Residence
Habitual residence can in principle be lost and another habitual residence acquired on the same day.
Held: The provisions giving the courts of a member state jurisdiction also apply where there is an alternative jurisdiction in a non-member . .
Lists of cited by and citing cases may be incomplete.

Children, International

Updated: 09 May 2022; Ref: scu.588979

F and K Jabbour v Custodian of Israeli Absentee Property: 1953

The court was asked as to the effect of foreign regulations on the ownership of a right of action under an insurance policy, and for that purpose examined whether the plaintiff’s claim against the insurance company was a ‘mere right to claim damages’.
Held: Pearson J considered the meaning of ‘damages’: ‘The usual meaning of the word ‘damages’ is as stated in Halsbury’s Laws of England, 2nd Ed vol 10 p 82, where it is said: ‘Damages may be defined as the pecuniary compensation which the law awards to a person for the injury he has sustained by reason of the act or default of another, whether such act or default is a breach of contract or tort; or, put more shortly, damages are the recompense given by the process of law to a person for the wrong that another has done him.”

Judges:

Pearson J

Citations:

[1954] 1 WLR 139, [1953] 2 Lloyd’s Rep 760

Cited by:

Cited – Wight, Pilling, Mackey v Eckhardt Marine GmbH PC 14-May-2003
(Cayman Islands) An international bank went into liquidation in the Cayman Islands, with liabilities in Bangladesh. A new bank was created in Bangladesh, and the applicants sought to make the new bank liable, and through them the liquidators.
Cited – Bedfordshire Police Authority v Constable and others ComC 20-Jun-2008
The authority insured its primary liability for compensation under the 1886 Act through the claimants and the excess of liability through re-insurers. The parties sought clarification from the court of the respective liabilities of the insurance . .
Lists of cited by and citing cases may be incomplete.

International

Updated: 08 May 2022; Ref: scu.183833

Regina (Channel Tunnel Group Ltd and Another) v Secretary of State for Environment Transport and the Regions: CA 23 Jul 2001

The Secretary had imposed requirements on the Channel Tunnel operators for security and defence in the tunnel. The company argued that such a requirement must be the product of consultation between the signatory governments. The Secretary argued that it was enough that the government of France had not dissented.
Held: The Treaty clearly required consultation before the making of a joint order, and in fact an order required the positive agreement of both governments. There is a clear difference between the absence of disagreement, and the presence of assent.

Judges:

Gibson LJ, Law LJ, Nourse Sir

Citations:

Times 07-Aug-2001

Statutes:

Channel Tunnel Act 1987 11, Treaty concerning the Construction and Operation by Private Concessionaires of a Channel Tunnel Fixed Link 1986

Jurisdiction:

England and Wales

Transport, International

Updated: 08 May 2022; Ref: scu.159495

Shansal v Al-Kishtaini: CA 8 Mar 2001

The restrictions imposed on trading with residents of Iraq continued to apply even if the person involved left Iraq. A simple change of address could not be allowed to be used to circumvent important international provisions. Provisions existed for assessing such residence. Even so, surprising effects might follow. In this case, the former resident would not be allowed to enforce what was an illegal contract. A claimant could not recover where to do so he would have to rely upon his own illegal act. This fell within the exemption allowed under human rights law as being in the public interest and subject to law.

Citations:

Times 08-Mar-2001

Statutes:

Control of Gold, Securities, Payments and Credits (Republic of Iraq) Directions 1990 (1990 No 1616), Human Rights Act 1998

Jurisdiction:

England and Wales

International, Commercial, Human Rights

Updated: 08 May 2022; Ref: scu.89190

Shansal v Al-Kishtaini: CA 26 Apr 2001

The restrictions imposed on trading with residents of Iraq continued to apply even if the person involved left Iraq. A simple change of address could not be allowed to be used to circumvent important international provisions. Provisions existed for assessing such residence. Even so, surprising effects might follow. In this case, the former resident would not be allowed to enforce what was an illegal contract. A claimant could not recover where to do so he would have to rely upon his own illegal act. This fell within the exemption allowed under human rights law as being in the public interest and subject to law.

Citations:

Gazette 26-Apr-2001

Statutes:

Control of Gold, Securities, Payments and Credits (Republic of Iraq) Directions 1990 (1990 No 1616), Human Rights Act 1998

Jurisdiction:

England and Wales

International, Commercial, Human Rights

Updated: 08 May 2022; Ref: scu.89191

Hulse and Others v Chambers and Another: CA 13 Jul 2001

A claimant in England sought damages for personal injuries for an accident which had occurred in Greece. Although the law which decided liability was the law of Greece, the calculation of damages is a procedural issue, and in an English court was to be assessed according to English rules. The assessment of damages remained in principle a jury question, even though for many years the judge had undertaken the task.

Citations:

Times 13-Jul-2001

Statutes:

Private International Law (Miscellaneous Provisions) Act 1995 14 (3) (b)

Jurisdiction:

England and Wales

Damages, Personal Injury, International

Updated: 08 May 2022; Ref: scu.81526

Da Cooper Lavalin Nv v Ken-Ren Chemicals and Fertilisers Ltd (Liq): HL 9 May 1994

The High Court has power to order security for costs to be given with respect to an international arbitration to take place in London, where there may be doubt as to the plaintiff’s creditworthiness.

Citations:

Times 09-May-1994, Gazette 15-Jun-1994, Ind Summary 16-May-1994

Statutes:

ICC Rules of Conciliation & Arbitration 1988, Arbitration Act 1950 812(6)

Arbitration, International

Updated: 08 May 2022; Ref: scu.79771

Ace Insurance Sa/Nv v Zurich Insurance Co and Another: CA 2 Feb 2001

The doctrine of forum non conveniens could be used to prevent the prosecution in the UK in respect of a matter agreed to be conducted in Texas, even though the proper applicable law was that England. The Act did not operate to restrict the application of the doctrine in this way even in respect of a non-contracting state, where the parties were subject to an express agreement or provision to this effect. Since the conditions for asserting that a decision had been per incuriam were not met, the decision in Young v Bristol Aeroplane Co Ltd was binding, and the court could not decline jurisdiction to stay proceedings against a defendant party to the Brussels convention on the ground of forum non conveniens.

Citations:

Times 27-Feb-2001, Gazette 22-Feb-2001

Statutes:

Civil Jurisdiction and Judgments Act 1982

Jurisdiction:

England and Wales

Citing:

Appeal From – Ace Insurance Sa-Nv v Zurich Insurance Company and Another QBD 6-Sep-2000
The doctrine of ‘forum non conveniens’ could be used to prevent the prosecution in the UK in respect of a matter agreed to be conducted in Texas, even though the proper applicable law was that England. The Act did not restrict the application of the . .
Lists of cited by and citing cases may be incomplete.

International, Insurance

Updated: 08 May 2022; Ref: scu.77625

Illinois State Board Of Elections v Socialist Workers Party Et Al: 22 Feb 1979

United States Supreme Court – Under the Illinois Election Code, new political parties and independent candidates must obtain the signatures of 25,000 qualified voters in order to appear on the ballot in statewide elections. However, the minimum number of signatures required in elections for offices of political subdivisions of the State is 5% of the number of persons who voted at the previous election for such offices. Application of these provisions to a special mayoral election in Chicago produced the result that a new party or independent candidate needed substantially more signatures than would be needed for ballot access in a statewide election. In actions by appellees, an independent candidate, two new political parties, and certain voters challenging this discrepancy on equal protection grounds, the District Court enjoined enforcement of the 5% provision insofar as it mandated more than 25,000 signatures, and the Court of Appeals affirmed.
Held: 1. This Court’s summary affirmance in Jackson v. Ogilvie, 403 U.S. 925, 91 S.Ct. 2247, 29 L.Ed.2d 705, of the District Court’s decision in 325 F.Supp. 864, upholding Illinois’ 5% signature requirement is not dispositive of the equal protection question presented here. The precedential effect of a summary affirmance can extend no further than ‘the precise issues presented and necessarily decided by those actions,’ Mandel v. Bradley, [1977] USSC 112; 432 U.S. 173, 176[1977] USSC 112; , 97 S.Ct. 2238, 2240[1977] USSC 112; , 53 L.Ed.2d 199. In contrast to this case, the challenge in Jackson involved only the discrepancy between the 5% requirement and the less stringent requirements for candidates of established political parties. The issue presented here was not referred to by the Jackson District Court, and was mentioned only in passing in the jurisdictional statement subsequently filed with this Court. Thus, the issue was not adequately presented to, or decided by, this Court in its summary affirmance.
2. The Illinois Election Code, insofar as it requires independent candidates and new political parties to obtain more than 25,000 signatures in Chicago violates the Equal Protection Clause of the Fourteenth Amendment. Pp. 183-187. (a) When such fundamental rights as the freedom to associate as a political party and the right to cast votes effectively are at stake, a State must establish that its regulation of ballot access is necessary to serve a compelling interest.
(b) ‘[E]ven when pursuing a legitimate interest, a State may not choose means that unnecessarily restrict constitutionally protected liberty,’ Kusper v. Pontikes, [1973] USSC 235; 414 U.S. 51, 59[1973] USSC 235; , 94 S.Ct. 303, 308[1973] USSC 235; , 38 L.Ed.2d 260, and States must adopt the least drastic means to achieve their ends. This requirement is particularly important where restrictions on access to the ballot are involved. Since the State has determined that a smaller number of signatures in a larger political unit adequately serves its interest in regulating the number of candidates on the ballot, the signature requirements for independent candidates and political parties seeking offices in Chicago are clearly not the least restrictive means of achieving the same objective. Appellant State Board of Elections has advanced no reason, much less a compelling one, why the State needs a more stringent requirement for elections in Chicago than for statewide elections.
(c) Prior invalidation of Illinois’ rules regarding geographic distribution of signatures tied the requirements for both city and state candidates solely to a population standard. However, while this may explain the anomaly at issue here, it does not justify it. Historical accident, without more, cannot constitute a compelling state interest.
3. The Court of Appeals properly dismissed as moot appellant’s claim that the Chicago Board of Election Commissioners lacked authority to conclude a settlement agreement with respect to the unresolved issue whether the 5% signature requirement coupled with the filing deadline impermissibly burdened First and Fourteenth Amendment rights. Appellant has presented no evidence creating a reasonable expectation that the Chicago Board will repeat its purportedly unauthorized actions in subsequent elections.

Judges:

Marshall J

Citations:

[1979] USSC 27

Links:

Worldlii

Jurisdiction:

United States

Cited by:

Cited – Bank Mellat v Her Majesty’s Treasury (No 2) SC 19-Jun-2013
The bank challenged measures taken by HM Treasury to restrict access to the United Kingdom’s financial markets by a major Iranian commercial bank, Bank Mellat, on the account of its alleged connection with Iran’s nuclear weapons and ballistic . .
Lists of cited by and citing cases may be incomplete.

International

Updated: 08 May 2022; Ref: scu.535120

Tahir v Tahir: SCS 1993

The court was asked as to the recognition of a divorce decree from Pakistam.
Held: Lord Sutherland observed: ‘What I have to look at is the decree which was pronounced in Pakistan. It would be contrary to public policy to recognise it, according to Choudhary, if both the motive and the effect were to deprive the pursuer of her rights in Scotland. That however is not the position because her rights are preserved under section 28 of the 1984 Act. There can therefore, in my view, be no public policy objection to written recognition of this divorce based on deprivation of the pursuer’s financial rights. As I understood the submission made to me, it was only on the basis that she would be deprived of such rights that it was argued that there was a public policy objection to recognition.’

Judges:

Lord Sutherland

Citations:

(1993) SLT 194

Jurisdiction:

England and Wales

Scotland, International, Family

Updated: 08 May 2022; Ref: scu.450576

Paklito Investment Ltd v Klockner East Asia Ltd: 1993

(Hong Kong) The plaintiff sought to enforce a Chinese arbitration award. The other party said it had not been allowed to present its case and resisted enforcement.
Held: The defence succeeded. The court was still asked to to enforce it under its discretion. Kaplan J discussed an instance when it might be exercised in order to enforce an award: ‘He relied strongly upon the fact that the defendants had taken no steps to set aside the award in China and that this failure to so act was a factor upon which I could rely. I disagree. There is nothing in s.44 nor in the New York Convention which specifies that a defendant is obliged to apply to set aside an award in the country where it was made as a condition of opposing enforcement elsewhere . . It is clear to me that a party faced with a Convention award against him has two options. Firstly, he can apply to the courts of the country where the award was made to seek the setting aside of the award. If the award is set aside then this becomes a ground in itself for opposing enforcement under the Convention . . Secondly, the unsuccessful party can decide to take no steps to set aside the award but wait until enforcement is sought and attempt to establish a Convention ground of opposition.
That such a choice exists is made clear by Redfern and Hunter in International Commercial Arbitration p.474 where they state: ‘He may decide to take the initiative and challenge the award; or he may do nothing and resist any attempts by his adversary to obtain recognition and enforcement of the award. The choice is a clear one – to act or not to act.’ . . I therefore conclude that the defendant’s failure to apply to set aside the award is not a factor upon which I should or could rely in relation to the exercise of my discretion . . In relation to the ground relied on in this case I could envisage circumstances where the court might exercise its discretion, having found the ground established, if the court were to conclude, having seen the new material which the defendant wished to put forward, that it would not affect the outcome of the dispute. This view is supported by Professor Albert Van den Berg in his book, the New York Convention of 1958, at p.302, where he states: ‘Thus only if it is beyond any doubt that the decision could have been the same would a court be allowed to override the serious violation.’
It is not necessary for me in this judgment to decide whether this is the only circumstance where the discretion could be exercised or to lay down circumstances where it would be appropriate for the court to exercise its discretion after finding a serious due process violation.’

Judges:

Kaplan J

Citations:

[1993] HKLR 39

Jurisdiction:

England and Wales

Cited by:

Cited – Dallah Estates and Tourism Holding Company v Ministry of Religious Affairs, Government Of Pakistan CA 20-Jul-2009
The claimant sought to enforce an international arbitration award against the defendant in respect of the provision of accommodation for Hajj pilgrims. A without notice order had been made to allow its enforcement, but that had been set aside.
Lists of cited by and citing cases may be incomplete.

International, Arbitration

Updated: 07 May 2022; Ref: scu.373982

Lunney v Prodigy Services Co: 1998

(United States) Some ‘infantile practical joker’ sent an e-mail to a boy scout leader, which falsely gave the impression that it came from Alex G Lunney, ‘a prospective eagle scout’. He complained of that as well as two bulletin board messages posted with the help of Prodigy’s service.

Citations:

(1998) 250 AD 2d 230

Jurisdiction:

United States

Cited by:

Cited – Bunt v Tilley and others QBD 10-Mar-2006
The claimant sought damages in defamation in respect of statements made on internet bulletin boards. He pursued the operators of the bulletin boards, and the court now considered the liability of the Internet Service Providers whose systems had . .
Cited – Godfrey v Demon Internet Limited QBD 26-Mar-1999
An Internet Service Provider who was re-distributing Usenet postings it had received, to its users in general, remained a publisher at common law, even though he was not such within the definitions of the Act, and it was therefore liable in . .
Lists of cited by and citing cases may be incomplete.

International, Defamation

Updated: 07 May 2022; Ref: scu.277106

Filarliga v Pena-lrala: 1980

(US Court of Appeals) ‘the torturer has become like the pirate and the slave trader before him, hostis humani generis, an enemy of all mankind’.

Citations:

(1980) 630 F 2d 876

Jurisdiction:

England and Wales

Cited by:

Cited – Mohamed, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 1) Admn 21-Aug-2008
The claimant had been detained by the US in Guantanamo Bay suspected of terrorist involvement. He sought to support his defence documents from the respondent which showed that the evidence to be relied on in the US courts had been obtained by . .
Lists of cited by and citing cases may be incomplete.

Human Rights, International

Updated: 07 May 2022; Ref: scu.272825

Attorney-General for the United Kingdom v Heinemann Publishers Australia Pty Ltd: 1988

(High Court of Australia) The A-G sought to prevent publication in Australia of the book Spycatcher, saying that it had been written by a former member of the British intelligence service and that it was derived from confidential material.
Held: The court should not enforce foreign public laws, in so much as it would not allow enforcement outside the territory of the foreign sovereign of claims based on or related to the exercise of foreign governmental power. Though it was difficult to identify the foreign laws or rights which fell within the general principle, the majority suggested that, rather than refer to ‘public laws’, it would be more apt to refer to ‘public interests’ or ‘governmental interests’ that is to claims enforcing the interests of a foreign sovereign which arise from the exercise of certain powers peculiar to government. This claim for relief ‘arises out of, and is secured by, an exercise of a prerogative of the Crown, that exercise being the maintenance of the national security. Therefore the right or interest asserted in the proceedings is to be classified as a governmental interest. As such, the action falls within the rule of international law which renders the claim unenforceable’.

Citations:

(1988) 165 CLR 30

Jurisdiction:

Australia

Cited by:

Cited – Mbasogo, President of the State of Equatorial Guinea and Another v Logo Ltd and others CA 23-Oct-2006
Foreign Public Law Not Enforceable Here
The claimant alleged a conspiracy by the defendants for his overthrow by means of a private coup d’etat. The defendants denied that the court had jurisdiction. The claimants appealed dismissal of their claim to damages.
Held: The claims were . .
Lists of cited by and citing cases may be incomplete.

International

Updated: 07 May 2022; Ref: scu.245577

Brown v Superior Court: 1988

(Supreme Court of California) The court considered the ‘market share doctrine’ for apportioning liability between tortfeasors: ‘In creating the market share doctrine, this court attempted to fashion a remedy for persons injured by a drug taken by their mothers a generation ago, making identification of the manufacturer impossible in many cases. We realised that in order to provide relief for an injured DES daughter faced with this dilemma, we would have to allow recovery of damages against some defendants which may not have manufactured the drug that caused the damage. . . Each defendant would be held liable for the proportion of the judgment represented by its market share, and its overall liability for injuries caused by DES would approximate the injuries caused by the DES it manufactured. A DES manufacturer found liable under this approach would not be held responsible for injuries caused by another producer of the drug. The opinion acknowledged that only an approximation of a manufacturer’s liability could be achieved by this procedure, but underlying our holding was a recognition that such a result was preferable to denying recover altogether to plaintiffs injured by DES.
It is apparent that the imposition of joint liability on defendants in a market share action would be inconsistent with this rationale. Any defendant could be held responsible for the entire judgment even though its market share may have been comparatively insignificant. Liability would in the first instance be measured not by the likelihood of responsibility for the plaintiff’s injuries but by the financial ability of a defendant to undertake payment of the entire judgment or a large portion of it.’

Citations:

(1988) 751 P 2d 470

Jurisdiction:

England and Wales

Cited by:

Cited – Barker v Corus (UK) Plc HL 3-May-2006
The claimants sought damages after contracting meselothemia working for the defendants. The defendants argued that the claimants had possibly contracted the disease at any one or more different places. The Fairchild case set up an exception to the . .
Lists of cited by and citing cases may be incomplete.

International, Damages

Updated: 07 May 2022; Ref: scu.241494

Emperor of Austria v Day and Kossuth: 1861

The defendants had printed banknotes in London. Kossuth intended to use the notes in Hungary after overthrowing the Emperor of Austria by revolution. The Emperor obtained an injunction restraining the defendants from continuing to manufacture them. The defendants appealed.
Held: The injunction was upheld. One of the defences advanced was that the injunction should be refused because the proceedings were brought to protect the Emperor’s political power and prerogatives. Lord Campbell LC:’if the suit were instituted merely to support his political power and prerogatives’ he would have denied the Emperor the right to maintain the suit.
Lord Justice Turner agreed and noted that the bill put the plaintiff’s case on three grounds: (i) violation of the rights and prerogative of the plaintiff as King of Hungary ‘by promotion of revolution and disorder and otherwise’; (ii) injury to the State of Hungary by the introduction of a spurious circulation into that kingdom; and (iii) injury to the subjects of the plaintiff by the same cause. There was no doubt that the court did not have jurisdiction to interfere on the grounds that the notes were intended to be used for the purpose of promoting revolution and disorder. He rejected the second ground saying the right of coining and issuing paper money is the prerogative of a sovereign: ‘so far, therefore, as this bill is founded upon the prerogative rights of the Plaintiff, or upon the political rights of his subjects’ the injunction should be refused: ‘the prerogative rights of sovereigns seem to me, as at present advised, to stand very much upon the same footing as acts of State and matters of that description, with which the municipal courts of this country do not and cannot interfere’.
But the court upheld the injunction on the third ground on which the bill was based. Lord Campbell was of the opinion that ‘if the acts meditated by the defendants and forbidden by this injunction were actually done, a pecuniary loss would be sustained by the plaintiff and by all his subjects, holders of the existing currency’. The court has jurisdiction to protect property from an act which, if completed, would give a right of action. Lord Justice Turner said that the third ground on which the bill was based alleged a case of injury to the subjects of the kingdom, ‘an injury not to the political but to the private rights of the plaintiff’s subjects’. He concluded: ‘I agree that the jurisdiction of this Court in a case of this nature rests upon injury to property actual or prospective, and that this Court has no jurisdiction to prevent the commission of acts which are merely criminal or merely illegal, and do not affect any rights of property, but I think there are here rights of property quite sufficient to found jurisdiction in this Court.’

Judges:

Lord Campbell LC, Lord Justice Turner

Citations:

(1861) 2 Giff 628

Jurisdiction:

England and Wales

Cited by:

Cited – Regina v Jones (Margaret), Regina v Milling and others HL 29-Mar-2006
Domestic Offence requires Domestic Defence
Each defendant sought to raise by way of defence of their otherwise criminal actions, the fact that they were attempting to prevent the commission by the government of the crime of waging an aggressive war in Iraq, and that their acts were . .
Cited – Kingdom of Spain v Christie, Manson and Woods Ltd 1986
The court questioned the basis of the cause of action asserted in Austria -v- Day. . .
Cited – RCA Corporation v Pollard CA 1982
The illegal activities of bootleggers who had made unauthorised recordings of concerts, diminished the profitability of contracts granting to the plaintiffs the exclusive right to exploit recordings by Elvis Presley.
Held: The defendant’s . .
Cited – Mbasogo, President of the State of Equatorial Guinea and Another v Logo Ltd and others CA 23-Oct-2006
Foreign Public Law Not Enforceable Here
The claimant alleged a conspiracy by the defendants for his overthrow by means of a private coup d’etat. The defendants denied that the court had jurisdiction. The claimants appealed dismissal of their claim to damages.
Held: The claims were . .
Lists of cited by and citing cases may be incomplete.

Crime, International

Updated: 07 May 2022; Ref: scu.239959

Naviera Maritima Peruana SA v Compania Internacional de Seguros de Peru: CA 1988

Unless agreed otherwise, the law of the ‘seat’ of the arbitration will govern its conduct. The court overruled a first instance decision that an arbitration was to be conducted in Lima as the agreed forum (and therefore seat), but with English law as the lex fori. LJ Kerr referred to the complexities and inconveniences which such an arrangement would cause, including the impossibility or at best difficulty of the English Court exercising jurisdiction over an arbitration proceeding in Peru.

Judges:

Kerr LJ

Citations:

[1988] 1 Lloyds Rep 1116

Jurisdiction:

England and Wales

Cited by:

Cited – Halpern and Another v Halpern and others ComC 24-Mar-2006
The deceased parents, being orthodox Jews, had first made standard wills and then made provision accoding to Jewish law. A dispute after the second death was referred to a Beth Din arbitration. After an initial resolution, various distributions were . .
Lists of cited by and citing cases may be incomplete.

Arbitration, International

Updated: 07 May 2022; Ref: scu.239600

In re Republic of Bolivia Exploration Syndicate Ltd: 1914

‘Even if it were conceivable that a diplomatic agent can waive his privilege, which is really the privilege of his sovereign, he can only do so intentionally, with full knowledge of his rights, and with the sanction of his sovereign or legation.’

Judges:

Astbury J

Citations:

[1914] 1 Ch 139

Statutes:

Diplomatic Privileges Act 1708

Jurisdiction:

England and Wales

Cited by:

Cited – Aziz v Republic of Yemen CA 17-Jun-2005
The claimant had made a claim for unfair dismissal. The defendant state had filed a defence instead of claiming state immunity. It then sought to assert such immunity. The claimant said the state had waived its immunity.
Held: Section 2(7) of . .
Lists of cited by and citing cases may be incomplete.

International, Jurisdiction

Updated: 07 May 2022; Ref: scu.227917

Village Residents’ Association Ltd v An Bord Pleanala (No 2): 2000

(Irish High Court) The court faced the first application for a Protective Costs Order (PCO) in the High Court of Ireland.
Held: There was jurisdiction to make such an order, but it was difficult in the abstract to identify the type or types of cases in which the interests of justice would require the court to deal with costs in the manner indicated by a PCO and it would be unwise to attempt to do so. The principles in ex p CPAG seemed to meet the fundamental rubric that the interests of justice should require a PCO to be made. An order was not made in this case.

Judges:

Laffoy J

Citations:

[2000] 4 IR 321

Jurisdiction:

England and Wales

Citing:

Approved – Regina v Lord Chancellor’s Department ex parte Child Poverty Action Group Admn 6-Feb-1998
The claimant sought an order with regard to its costs in an anticipated application to the court. The application was refused. Requests in a public interest action for an advance order for costs could only be awarded in very exceptional . .

Cited by:

Cited – Corner House Research, Regina (on the Application of) v Secretary of State for Trade and Industry CA 1-Mar-2005
The applicant sought to bring an action to challenge new rules on approval of export credit guarantees. The company was non-profit and founded to support investigation of bribery. It had applied for a protected costs order to support the . .
Lists of cited by and citing cases may be incomplete.

International, Costs, Administrative

Updated: 06 May 2022; Ref: scu.223263

C v C (Minor:Abduction: Rights of Custody Abroad): CA 1989

The English mother married the Australian father in Australia and bore their child their. After divorce both parents had custody with no right to remove the child. The mother brought the child to England without the father’s consent.
Held: The child had been removed wrongfully. The mother was not to be allowed to create a risk of psychological harm to her child, and then use that to resist his return home.
Lord Donaldson MR spoke as to habitual residence: ‘I think it is a very interesting question whether J. and his mother could establish habitual residence in this country as at the moment when they arrived in this country in circumstances in which they had every intention of staying here indefinitely and of settling here. But I do not think, with respect to the argument, that that is the point. The question is: did J.’s habitual residence in Australia, which certainly existed up to 21 March, continue thereafter? It may take time, I do not say it does, to establish habitual residence, but I cannot see that it takes any time to terminate it’ and ‘If anyone, be it an individual or the court or other institution or a body, has a right to object, and either is not consulted or refuses consent, the removal will be wrongful within the meaning of the Convention. I add for completeness that a ‘right to determine the child’s place of residence’ (using the phrase in the Convention) may be specific – the right to decide that it shall live at a particular address or it may be general, eg ‘within the Commonwealth of Australia’.’

Judges:

Lord Donaldson MR, Butler-Sloss LJ

Citations:

[1990] 2 AC 562, [1989] 2 All ER 465, [1989] 1 WLR 654, [1989] 1 FLR 403

Statutes:

Child Abduction and Custody Act 1985 S1 a3 S1 a5 s1 a13

Jurisdiction:

England and Wales

Cited by:

Appeal from – In re J (a Minor) (Abduction: Custody rights) HL 1-Jul-1990
On 21 March 1990 the mother removed the child, aged two, from Australia, where he had been habitually resident, to England with the intention of permanently residing here. She did so without the knowledge of the father who also resided in Australia . .
Cited – Nessa v Chief Adjudication Officer HL 3-Nov-1999
Mrs. Nessa arrived at Heathrow aged 55 having lived all her life in Bangladesh. Her husband, Mr. Mobarak Ali, had lived in the United Kingdom from 1962 until he died in 1975 and when she arrived here, Mrs. Nessa had a right of abode. She hoped to . .
Approved – In re P (A Child) (Abduction: Consent); (Abduction: Custody Rights) CA 28-Jul-2004
The father sought the return to the USA of his daughter, brought here by her mother. The father had custody, but the mother said he had consented to the child being brought here.
Held: The issue of consent did not affect the question of the . .
Cited – In re D (A Child), (Abduction: Rights of Custody) HL 16-Nov-2006
The child had been born to parents who married and later divorced in Romania. The mother brought him to England without the father’s consent, and now appealed an order for his return.
Held: The mother’s appeal succeeded. The Convention . .
Cited – AF v M B-F FD 22-Feb-2008
The father sought the return of the two children to Poland after they had been brought to England by the mother. She said that she had come to seek work as a dentist, and had been unable to support the family in Poland. She said that her Polish . .
Cited – A v A and another (Children) (Children: Habitual Residence) (Reunite International Child Abduction Centre intervening) SC 9-Sep-2013
Acquisition of Habitual Residence
Habitual residence can in principle be lost and another habitual residence acquired on the same day.
Held: The provisions giving the courts of a member state jurisdiction also apply where there is an alternative jurisdiction in a non-member . .
Lists of cited by and citing cases may be incomplete.

Children, International

Updated: 06 May 2022; Ref: scu.200333

Philip Alexander Securities and Futures Ltd v Bamberger and Others: ComC 8 May 1996

ComC Consumer contracts – arbitration provision – Consumer Arbitration Agreements Act 1988 – exceptions – sections 2(b), 4 : European Union – Consumer contracts – arbitration provision – Consumer Arbitration Agreements Act 1988 – exceptions – section 2(a) – distinction between domestic and non-domestic consumers – discrimination – Article 6 EC – freedom to provide services – restriction – Article 59 EC – breach of European law – disapplication of section 2(a) : Consumer contracts – arbitration provision – ruling on application of arbitration provision by courts of Contracting State – Brussels Convention article 1(4) – exclusion of arbitration – meaning – Brussels Convention article 27(4), 28

Judges:

Waller J

Citations:

Independent 08-Jul-1996

Statutes:

Consumer Arbitration Agreements Act 1988

Jurisdiction:

England and Wales

Cited by:

Appeal from (Affirmed) – Philip Alexander Securities and Futures Ltd v Bamberger and Others CA 22-Jul-1996
. .
Lists of cited by and citing cases may be incomplete.

Arbitration, International, Consumer

Updated: 06 May 2022; Ref: scu.186006

In Re K (Abduction: Consent: Forum Conveniens): 1995

An application was made to stay proceedings here for the return of a child to the other parent’s country of jurisdiction on the ground that the question has already been determined, or that it is more appropriate for it to be determined, in proceedings in another jurisdiction.
Held: Section 5 might be used for that purpose.

Citations:

[1995] 2 FLR 211

Statutes:

Family Law Act 1986 5

Jurisdiction:

England and Wales

Cited by:

Cited – Re KL (A Child) SC 4-Dec-2013
How should the courts of this country react when a child is brought here pursuant to an order made abroad in proceedings under the Hague Convention on the Civil Aspects of International Child Abduction which is later over-turned on appeal? K was a . .
Lists of cited by and citing cases may be incomplete.

Children, International

Updated: 06 May 2022; Ref: scu.538777

Re Arnott ; ex parte Chief Official Receiver: 1888

(Ireland) Cave J was asked whether a witness in bankruptcy proceedings (a solicitor’s clerk) should be ordered to disclose the address of the debtor client, which had been communicated in confidence to the solicitor for the purpose of obtaining legal advice in relation to the bankruptcy proceedings. Cave J held that the witness was entitled to refuse to answer the question. He considered that the case was covered by Ex parte Campbell, which was binding on him and which ‘decides that this address was a matter of professional confidence’.
Cave J reject a submission that the bankrupt and his solicitor were engaged in doing something wrong, and concluded: ‘Here proceedings had been taken against the debtor in bankruptcy, and he might wish to be advised as to them, and, in as much as there is a perfectly legitimate subject-matter for professional advice, we are not to assume, when such exists, that the solicitor was engaged in doing something wrong. I think it is of the highest importance that a man should be able to consult his solicitor without fear, and therefore I refuse this application.’

Judges:

Cave J

Citations:

(1888) 60 LTNS 109, [1899] IR 201

Legal Professions, International

Updated: 06 May 2022; Ref: scu.471500

In re Duncan, decd, Garfield v Fay: 1968

Ormrod J rejected a submission that where foreign lawyers are involved no privilege is recognised by an English Court if privilege is not recognised by the municipal law of the forum of the foreign lawyer. He said: ‘The basis of the privilege is just as apt to cover foreign legal advisers as English lawyers, provided only that the relationship of lawyer and client subsists between them. Any other conclusion would lead to an impossible position for if this court were required to investigate the position of such communications in foreign law it must first determine the foreign law, but what law governs the relationship of English client and foreign lawyer, at any rate, when no proceedings are in contemplation? There is no forum and therefore no lex fori. The nationality of the foreign lawyer is as irrelevant as his address for this purpose.
It only remains to consider the position where proceedings are already on foot in a foreign court. If disclosure is required by the law of such a court the other side will see the documents in dispute and so gain an advantage. Is that a reason for making an exception to our lex fori? In my judgment it is not. These matters are matters to be decided according to the practice of this court. I, therefore, hold that all the documents which are communications passing between the plaintiff and his foreign legal advisers are privileged, whether or not proceedings in this or any other court were contemplated when they came into existence.’

Judges:

Ormrod J

Citations:

[1968] P 306, [1968] 2 WLR 1479

Citing:

Cited – Lawrence v Campbell 1859
Legal privilege was claimed in English litigation for communications between a Scottish client and a Scottish solicitor practising in London.
Held: ‘the same principle that would justify an Englishman consulting his English solicitor would . .

Cited by:

Cited – Prudential Plc and Another, Regina (on The Application of) v Special Commissioner of Income Tax and Another SC 23-Jan-2013
The appellants resisted disclosure to the revenue of advice it had received. It claimed legal advice privilege (LAP), though the advice was from its accountants.
Held: (Lords Sumption and Clarke dissenting) LAP applies to all communications . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Litigation Practice, International

Updated: 06 May 2022; Ref: scu.470880

Connecticut Bank of Commerce v Republic of Congo: 29 Aug 2002

(United States Court of Appeals, Fifth Circuit) Connecticut Bank had acquired the rights to a valid London judgment against the Congo for defaulting on a loan agreement. It obtained a default judgment in New York in relation to the London judgment debt. The Bank then sought to attach various debts owed by a group of Texas oil companies to the Congo. The debts constituted various royalty obligations by the oil companies for activities connected with the exploration for and the sale of the Congo’s oil.
Held: The debts due from the oil companies were not ‘property . . used for a commercial activity’ within the meaning of section 1610(a). Judge Garza, for the majority said: ‘The phrase ‘used for’ on its face denotes something different and more specific than the phrases ‘integral to’ or ‘necessary to’. It also denotes something distinct (and narrower) than the other phrases the Bank uses in its petition, such as ‘related to’ or ‘contemplated by.”
Judge Garza said: ‘What matters under the statute is what the property is ‘used for’, not how it was generated or produced. If property in the United States is used for a commercial purpose here, that property is subject to attachment and execution even if it was purchased with tax revenues or some other noncommercial source of government income. Conversely, even if a foreign state’s property has been generated by commercial activity in the United States, that property is not thereby subject to execution or attachment if it is not ‘used for’ a commercial activity within our borders. The district court (and the litigants) have focused on the question of whether the Congo’s joint venture with the garnishees, which gave rise to the royalty and tax obligations that the Bank want to garnish, was a ‘commercial activity in the United States’. This was the wrong question to consider. What matters under the statute is not how the Congo made its money, but how it spends it. The amenability of these royalties and taxes to garnishment depends on what they are ‘used for’, not on how they were raised.’
He added: ‘The phrase ‘used for’ in section 1610(a) is not a mere syntactical infelicity that permits courts to look beyond the ‘use’ of property, and instead try to find any kind of nexus or connection to a commercial activity in the United States. The statute means what it says: property of a foreign sovereign . . may be executed against only if it is ‘used for’ a commercial activity. That the property is revenue from or otherwise generated by commercial activity in the United States does not thereby render the property amenable to execution.
. . To use property for a commercial activity, within the ordinary meaning of ‘use’, would be to put the property in the service of the commercial activity, to carry out the activity by means of the property. Here, the royalty obligations in question represent the revenue, the income, from an allegedly commercial activity. In ordinary usage, we would not say that the revenue from a transaction is ‘used for’ that transaction.’
He referred to the Act, noting the distinction in the Act between the jurisdictional immunity in section 3(1), which provides that a state is not immune as respects proceedings ‘relating to’ a commercial transaction and section 13(4), which, as he put it, makes explicit that the mere relationship to a commercial activity does not suffice to permit execution, the property must ‘for the time being’ be ‘in use or intended for use for a commercial purpose’. He concluded that the Act parallels the FSIA on the footing that: ‘it allows jurisdiction based on mere relationship to a commercial activity, but very clearly permits execution only depending on the ‘use’ of the property.’

Judges:

Emilio M Garza

Citations:

[2002] 309 F3d 240

Links:

Worldlii

Cited by:

Cited – SerVaas Incorporated v Rafidian Bank and Others SC 17-Aug-2012
The appellant had contracted to construct a factory in Iraq. On the imposition of sanctions, the respondent bank’s assets were frozen. The appellant sought to recover the sums due to it, and obtained judgment in France. After the fall of Hussain, . .
Lists of cited by and citing cases may be incomplete.

International, Banking

Updated: 06 May 2022; Ref: scu.468969

FG Hemisphere Associates LLC v Democratic Republic of Congo: 10 Feb 2010

Hong Kong Court of Appeal

Citations:

[2010] HKCA 19, [2010] 2 HKLRD 66, [2010] 2 HKC 487

Links:

HKLii

Cited by:

Cited – SerVaas Incorporated v Rafidian Bank and Others SC 17-Aug-2012
The appellant had contracted to construct a factory in Iraq. On the imposition of sanctions, the respondent bank’s assets were frozen. The appellant sought to recover the sums due to it, and obtained judgment in France. After the fall of Hussain, . .
Lists of cited by and citing cases may be incomplete.

International, Banking

Updated: 06 May 2022; Ref: scu.468970

Arab Monetary Fund v Hashim: 11 Oct 1994

In cases under the 1978 Act the court does not ask whether, under some rule of English private international law to be found independently of that Act, the contribution claim is to be determined by reference to the 1978 Act. Rather, the court asks whether, under the provisions of the 1978 Act itself, the contribution claim ought to succeed. Chadwick J said: ‘If B and C were each persons against whom liability had been or could be established in an action brought against them by A in an English court, applying the appropriate law in accordance with English private international law rules, then the Act conferred on B a right of contribution against C to which the court had to give effect. There was no preliminary question as to proper law the answer to which determined, independently of the Act, whether the Act applied.’

Judges:

Chadwick J

Citations:

Times 11-Oct-1994

Statutes:

Civil Liability Contribution Act 1978

Cited by:

Cited – Cox v Ergo Versicherung Ag CA 25-Jun-2012
The deceased member of the armed forces had died in a road traffic accident in Germany. The parties didputed whether the principles governing the calculation of damages were those in the 1976 Act and UK law, or under German law.
Held: ‘There . .
Lists of cited by and citing cases may be incomplete.

International, Damages

Updated: 06 May 2022; Ref: scu.460863

West Virginia State Board of Education v Barnette: 14 Jun 1943

(United States Supreme Court) Jackson J said: ‘If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion or other matters of opinion to force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.’

Judges:

Jackson J

Citations:

(1943) 319 US 624, [1943] USSC 130, 63 SCt 1178, 87 LEd 1628

Links:

Worldlii

Cited by:

Cited – British Broadcasting Corporation (BBC) and Another, Regina (on The Application of) v Ahmad Admn 11-Jan-2012
The BBC wished to interview the prisoner who had been detained pending extradition to the US since 2004, and now challenged decision to refuse the interview.
Held: The claim succeeded. The decision was quashed and must be retaken. If ever any . .
Cited – RT (Zimbabwe) and Others v Secretary of State for The Home Department SC 25-Jul-2012
The claimants said it would be wrong to return them to Zimbabwe where they would be able to evade persecution only by pretending to a loyalty to, and enthusiasm for the current regime.
Held: The Secretary of State’s appeals failed. The HJ . .
Lists of cited by and citing cases may be incomplete.

International, Human Rights

Updated: 06 May 2022; Ref: scu.450214

Colt Industries v Sarlie (No. 2): CA 1966

Lord Denning MR discussed the status of a foreign judgment whilst under appeal: ‘The appeal itself does not render it not final and conclusive, nor should the possibility of leave to appeal. It seems to me that the proper test is this : is the judgment a final and conclusive judgment of a court of competent jurisdiction in the territory in which it was pronounced. The relevant territory here is the State of New York. Applying this test, there was here a final and conclusive judgment.’
Russell LJ said: ‘on the question whether a judgment lacks finality or conclusiveness for lack of enforceability, regard can only be had to the system of law applied by the court whose foreign judgment is in question’

Judges:

Lord Denning MR, Russell LJ

Citations:

[1966] 1 WLR 1287, [1966] 3 All ER 85

Cited by:

Cited – Financial Services Authority (FSA) and Others v AMRO International Sa and Another CA 24-Feb-2010
The FSA appealed against an order refusing its request for inquiries and production of accounting records by the defendant accountants to satisfy a request issued by the US Securities and Exchange Commission.
Held: The FSA had properly . .
Lists of cited by and citing cases may be incomplete.

Estoppel, International

Updated: 06 May 2022; Ref: scu.409216

A v A and another (Children) (Children: Habitual Residence) (Reunite International Child Abduction Centre intervening): SC 9 Sep 2013

Acquisition of Habitual Residence

Habitual residence can in principle be lost and another habitual residence acquired on the same day.
Held: The provisions giving the courts of a member state jurisdiction also apply where there is an alternative jurisdiction in a non-member state such as the United States. The Regulation also deals with how child abduction cases are to be dealt with as between member states of the European Union, and the various international conventions dealing with children, including this one, formed part of the legislative history of the Regulation.
When determining the ‘habitual residence’ of a child for the purpose of the Brussels II Regulation revised and the Hague Convention, the Shah test should not be followed, the search being rather for the place which reflects ‘some degree of integration by the child into the social and family environment’, the intentions of the parents being no more than one relevant factor; in the majority’s view (Lord Hughes disagreeing on this point) physical presence was a necessary element.
The Court summarised the applicable law: ‘i) All are agreed that habitual residence is a question of fact and not a legal concept such as domicile. There is no legal rule akin to that whereby a child automatically takes the domicile of his parents.
ii) It was the purpose of the 1986 Act to adopt a concept which was the same as that adopted in the Hague and European Conventions. The Regulation must also be interpreted consistently with those Conventions.
iii) The test adopted by the European Court is ‘the place which reflects some degree of integration by the child in a social and family environment’ in the country concerned. This depends upon numerous factors, including the reasons for the family’s stay in the country in question.
iv) It is now unlikely that that test would produce any different results from that hitherto adopted in the English courts under the 1986 Act and the Hague Child Abduction Convention.
v) In my view, the test adopted by the European Court is preferable to that earlier adopted by the English courts, being focussed on the situation of the child, with the purposes and intentions of the parents being merely one of the relevant factors. The test derived from R v Barnet London Borough Council, ex p Shah should be abandoned when deciding the habitual residence of a child.
vi) The social and family environment of an infant or young child is shared with those (whether parents or others) upon whom he is dependent. Hence it is necessary to assess the integration of that person or persons in the social and family environment of the country concerned.
vii) The essentially factual and individual nature of the inquiry should not be glossed with legal concepts which would produce a different result from that which the factual inquiry would produce.
viii) As the Advocate General pointed out in para AG45 and the court confirmed in para 43 of Proceedings brought by A, it is possible that a child may have no country of habitual residence at a particular point in time.’

Judges:

Lady Hale, Deputy President, Lord Wilson, Lord Reed, Lord Hughes, Lord Toulson

Citations:

[2013] UKSC 60, [2014] 1 AC 1, [2013] WLR(D) 345, [2013] 3 FCR 559, [2013] 3 WLR 761, [2013] Fam Law 1528, [2014] 1 All ER 827, [2014] 1 FLR 111, UKSC 2013/0106

Links:

Bailii, Bailii Summary, SC, SC Summary, WLRD

Statutes:

Council Regulation (EC) No 2201/2003

Jurisdiction:

England and Wales

Citing:

Appeal from – In re A (Children) CA 31-Jan-2013
. .
Cited – B v H (Habitual Residence: Wardship) FD 2002
A mother of three children, who was pregnant with her fourth child, accompanied the father on a visit to Bangladesh. After their arrival the father announced his intention to remain there and refused to hand over the passports of the mother and . .
Cited – Owusu v Jackson, Mammee Bay Resorts Limited etc CA 19-Jun-2002
Defendants appealed against an order refusing an order to restrain service of the proceedings on certain defendants outwith the jurisdiction. The claimant was seriously injured holidaying at a resort managed by the several defendants in Jamaica in . .
Cited – Owusu v Jackson ECJ 1-Mar-2005
ECJ Brussels Convention – Territorial scope of the Brussels Convention – Article 2 – Jurisdiction – Accident which occurred in a non – Contracting State – Personal injury – Action brought in a Contracting State . .
Cited – In Re I (A Child) SC 1-Dec-2009
The child had been born in Britain to British citizen parents from Pakistan and India. There had been care proceedings, but later and with the court’s consent the father took him to Pakistan undertaking to return him, but then failed to do so. . .
Cited – JKN v JCN (Divorce: Forum) FD 19-Apr-2010
Ms Theis QC decided that proceedings were only ‘governed’ by BIIR if they fell within article 19 of BIIR . .
Cited – AB v CB FD 10-Oct-2012
Whether English divorce proceedings instituted here by the wife AB should be stayed to enable Indian proceedings for divorce instituted there earlier by CB.
Held: Bodey J stayed the wife’s English petition on the ground that India was the more . .
Cited – Regina v Barnet London Borough Council, Ex parte Shah HL 16-Dec-1982
The five applicants had lived in the UK for at least three years while attending school or college. All five were subject to immigration control, four had entered as students with limited leave to remain for the duration of their studies, and the . .
Cited – In re J (a Minor) (Abduction: Custody rights) HL 1-Jul-1990
On 21 March 1990 the mother removed the child, aged two, from Australia, where he had been habitually resident, to England with the intention of permanently residing here. She did so without the knowledge of the father who also resided in Australia . .
Cited – In Re M (A Minor) (Habitual Residence) CA 3-Jan-1996
An habitual residence dispute is a dispute on a matter of fact not of law. It cannot be settled by the choice of the parents. A child cannot acquire habitual residence in a country without actually being physically present in that country. . .
Cited – Al Habtoor v Fotheringham CA 15-Feb-2001
There is no jurisdiction in wardship over a child not habitually resident in England. A child born in England of and English mother and Dubai father had gone to live with his mother in Dubai at the invitation of the father, but had there retained . .
Cited – Re R (Abduction: Habitual Residence) 2004
. .
Cited – In re P-J (Children) (Abduction: Consent) FD 2009
. .
Cited – A (Area of Freedom, Security and Justice) ECJ 2-Apr-2009
ECJ Judicial co-operation in civil matters – Jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility – Regulation (EC) No 2201/2003 . .
Cited – In re P-J (Children) (Abduction: Consent) CA 23-Jun-2009
An application was made under the 1985 Act. The mother answered by saying that the removal of the child had been approved by the father.
Held: The mother’s appeal failed. The father had clearly indicated that he withdrew his consent before the . .
Cited – In re H-K (Children) CA 10-Oct-2011
. .
Cited – DL v EL (Hague Abduction Convention: effect of reversal of return order on appeal) FD 17-Jan-2013
F sought the return of his son K to the US. K had been brought here by M after a court order in the US,but the father subsequently appealed sucessfully, obtaining an order for K’s return. M said that the UK court had originally and correctly found K . .
Cited – DL v EL CA 16-Jul-2013
M had returned to the UK with her child on the strength of a US court order. F appealed successfully and now sought an order from the UK court for the return of the child.
Held: F’s appeal against refusal of an order failed. Acting under the . .
Cited – In re S (Minors) (Child Abduction: Wrongful Retention) FD 1993
The parents of S were Israeli citizens living in Israel. They had equal parental rights and responsibilities under Israeli law. They brought their two children to England intending to reside here for one year and then return to Israel. The father . .
Cited – in Re M (Abduction: Habitual Residence) CA 1996
The court accepted a proposition that one parent with parental responsibility could not achieve a change in the child’s habitual residence without the consent of the other parent with parental responsibility. . .
Cited – In re S (A Child: Abduction) CA 27-Nov-2002
M’s appeal from refusal of order for return of a child under the Hague Convention. . .
Cited – In Re T (A Child: Article 15 of B2R) ((Care Proceedings: Request to Assume Jurisdiction) FD 13-Mar-2013
A pregnant 17 year old Slovakian girl ran away from a children’s home in Slovakia and gave birth to the baby in the UK.
Held: Although the court decided to transfer the case to Slovakia under article 15, Mostyn J said: ‘It is not disputed that . .
Cited – A (Area of Freedom, Security And Justice) ECJ 29-Jan-2009
ECJ Area of Freedom, Security And Justice – Opinion – Judicial cooperation in civil matters – Jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental . .
Cited – Mercredi v Richard Chaffe (Area of Freedom, Security And Justice) ECJ 22-Dec-2010
ECJ Judicial cooperation in civil matters – Regulation (EC) No 2201/2003 – Matrimonial matters and parental responsibility – Child whose parents are not married – Concept of ‘habitual residence’ of an infant – . .
Cited – Hope v Hope 5-Aug-1854
A child owed allegiance to the Crown and in return the Crown had a protective or parens patriae jurisdiction over the child wherever he was. Lord Cranworth LC explained this: ‘The jurisdiction of this Court, which is entrusted to the holder of the . .
Cited – In re P (GE) (An infant) CA 1965
A stateless child was taken by his father away from the mother in England to Israel.
Held: The wardship jurisdiction of the Court of Chancery extended to any child ‘ordinarily resident’ in this country. An infant of British nationality whether . .
Cited – in Re B; RB v FB and MA (Forced Marriage: Wardship: Jurisdiction) FD 15-Apr-2008
The court exercised the wardship jurisdiction in respect of a 15 year old girl born and brought up in Pakistan, who had never been here but did have dual Pakistani and British nationality. She had gone to the High Commission in Islamabad asking to . .
Cited – In re N (A Child) (Abduction: Appeal) CA 11-Jul-2012
M appealed against refusal of an order dismissing her application for the return of her daughter. The main issue related to T’s habitual residence and a claim that the jurisdiction of the court in England and Wales could be founded upon T being . .
Cited – C v C (Minor:Abduction: Rights of Custody Abroad) CA 1989
The English mother married the Australian father in Australia and bore their child their. After divorce both parents had custody with no right to remove the child. The mother brought the child to England without the father’s consent.
Held: The . .
Cited – SH v HH (Jurisdiction to Grant Wardship) CA 8-Jul-2011
The British father, of Afghan origin, travelled back to Afghanistan to marry. His wife, the mother, planned to come to England but had never left Afghanistan when their first child was born. Her subsequent journey (alone) to England may have . .
Cited – Mozes v Mozes 9-Jan-2001
United States Court of Appeals, Ninth Circuit . .

Cited by:

Cited – JO v GO and Others; re PO; Re O (Court of Protection: Jurisdiction) CoP 13-Dec-2013
Jurisdiction of the Court of Protection
PO, a lady in her late eighties lacked capacity to decide her own care. She had been habitually resident in Hertfordshire. Her daughters now challenged their brother who had moved her to a care home in Scotland when he himself moved there. An . .
Cited – Re KL (A Child) SC 4-Dec-2013
How should the courts of this country react when a child is brought here pursuant to an order made abroad in proceedings under the Hague Convention on the Civil Aspects of International Child Abduction which is later over-turned on appeal? K was a . .
Cited – AR v RN (Scotland) SC 22-May-2015
The court was asked whether it should order the return to France of two little girls who have been living with their mother in Scotland since July 2013. The issue arose under article 3 of the 1980 Hague Convention on the Civil Aspects of . .
Cited – Cornwall Council, Regina (on The Application of) v Secretary of State for Health and Somerset County Council SC 8-Jul-2015
PH had severe physical and learning disabilities and was without speech, lacking capacity to decide for himself where to live. Since the age of four he received accommodation and support at public expense. Until his majority in December 2004, he was . .
Cited – M (Children : Habitual Residence : 1980 Hague Child Abduction Convention) CA 25-Aug-2020
F sought the return of his children to Germany. They had lived there, but brought to the UK by M with F’s consent. She stayed for a year, and the court now considered where was their habitual residence. The judge considered that they had not lost . .
Cited – Mittal v Mittal CA 18-Oct-2013
The parties were born and lived in India and were Hindu. They came to the UK but after separation, returned to India, leaving no assets here. H began divorce proceedings in India, but W then issued a petition here. She now appealed against on order . .
Appeal from – Vedanta Resources Plc and Another v Lungowe and Others SC 10-Apr-2019
The claimants alleged negligence causing them personal injury and other losses arising from pollution from mining operations of the defendants in Zambia. The company denied jurisdiction. In the Court of Appeal the defendants’ appeals were dismissed. . .
Cited – In re NY (A Child) (Reunite International and others intervening) SC 30-Oct-2019
The father had applied for a summary order requiring the return of the daughter to Israel. The Court was asked to consider whether the Court of Appeal, having determined that such an order could not be granted under the Hague Convention on the Civil . .
Lists of cited by and citing cases may be incomplete.

Children, European, International

Leading Case

Updated: 06 May 2022; Ref: scu.515109

Re J (A Child), Re (Child returned abroad: Convention Rights); (Custody Rights: Jurisdiction): HL 16 Jun 2005

The parents had married under shariah law. They left the US to return to the father’s home country Saudi Arabia. They parted, and the mother brought their son to England against the father’s wishes and in breach of an agreement. The father sought his summary return to Saudi Arabia, a non-Convention country.
Held: The appeal was allowed. The Court of Appeal was wrong to interfere with the exercise of the trial judge’s discretion, but the trial judge was wrong to leave out of account the absence of a jurisdiction in the home country to enable the mother to bring the child back here without the father’s consent. In every case where a child was to be returned to a non-convention country, the welfare of the child was the paramount consideration, and policies contained in the Convention were not to be applied even by analogy.
Baroness Hale of Richmond said: ‘In all non-Convention cases the courts have consistently held that they must act in accordance with the welfare of the individual child. If they did decide to return the child, that is because it is in the best interests to do so not because the welfare principle has been superseded by some other consideration.’
The welfare principle is sufficiently broad and flexible to accommodate many cultural and religious practices: ‘It would be wrong to say that the future of every child who is within the jurisdiction of our courts should be decided according to a conception of child welfare which exactly corresponds to that which is current here. In a world which values difference, one culture is not inevitably to be preferred to another. Indeed we do not have any fixed concept of what will be in the best interests of the individual child . . We are not so arrogant as to think that we know best . .Hence our law does not start from any a priori assumptions about what is best for any individual child. It looks at the child and weighs a number of factors in the balance, now set out in the well known checklist in section 1 (3) of the Children Act 1989: These include his own wishes and feelings, his physical and emotional and educational needs, and the relative capacities of the adults around him to meet those needs, the effect of change, his own characteristics and background, including his ethnicity, culture and religion, and any harm he has suffered or risks suffering in the future. There is nothing in those principles which prevents a court from giving great weight to the culture in which a child has been brought up when deciding how and where he will fare best in the future. Our own society is a multi-cultural one.’

Judges:

Lord Nicholls Of Birkenhead, Lord Hoffmann, Lord Walker Of Gestingthorpe, Baroness Hale Of Richmond, Lord Brown Of Eaton-Under-Heywood

Citations:

[2005] UKHL 40, Times 17-Jun-2005, [2005] 2 FLR 802, [2006] 1 AC 80, [2005] 2 WLR 14, [2005] Fam Law 689, [2005] 3 WLR 14, [2005] 2 FCR 381, [2005] 3 All ER 291

Links:

Bailii, House of Lords

Statutes:

Hague Convention on the Civil Aspects of International Child Abduction

Jurisdiction:

England and Wales

Citing:

Appeal from – In re J (a child) (Child returned abroad: Convention Rights, Human Rights) CA 2-Apr-2004
The mother resisted an order requiring her to return to Saudi Arabia her child, saying that his human rights would be breached in Saudi.
Held: The court could apply the convention only as regards actions which would take place in a convention . .
Cited – G v G (Minors: Custody Appeal) HL 25-Apr-1985
The House asked when a decision, on the facts, of a first instance court is so wrong as to allow it to be overturned on appeal.
Held: The epithet ‘wrong’ is to be applied to the substance of the decision made by the lower court. ‘Certainly it . .
Cited – Piglowska v Piglowski HL 24-Jun-1999
No Presumption of House for both Parties
When looking to the needs of parties in a divorce, there is no presumption that both parties are to be left able to purchase alternative homes. The order of sub-clauses in the Act implies nothing as to their relative importance. Courts should be . .
Cited – Re JA (Child Abduction: Non-Convention Country) CA 1998
The court accepted a submission that ‘the court cannot be satisfied that it is in the best interests of the child to return it to the court of habitual residence in order that that court may resolve the disputed question unless this court is . .
Cited – In re J (a Minor) (Abduction: Custody rights) HL 1-Jul-1990
On 21 March 1990 the mother removed the child, aged two, from Australia, where he had been habitually resident, to England with the intention of permanently residing here. She did so without the knowledge of the father who also resided in Australia . .
Cited – Osman v Elasha CA 24-Jun-1999
The court was asked to make an order for return of three children from the Sudan.
Held: The court emphasised ‘the importance of according to each state liberty to determine the family justice system and principles that it deems appropriate to . .
Cited – Re B’s Settlement, B v B 1940
Morton J said: ‘I desire to say quite plainly that in my view this Court is bound in every case, without exception, to treat the welfare of its ward as being the first and paramount consideration, whatever orders may have been made by the Courts of . .
Cited – McKee v McKee PC 15-Mar-1951
(Canada) There was a choice open to the trial judge facing a contest for the custody of a child: ‘It is possible that a case might arise in which it appeared to a court, before which the question of custody of an infant came, that it was in the best . .
Cited – J v C (An Infant) HL 19-Feb-1969
The House sought to construe the meaning of the words ‘shall regard the welfare of the infant as the first and paramount consideration’. Lord MacDermott said: ‘it seems to me that they must mean more than that the child’s welfare is to be treated as . .
Cited – Re L (Minors) (Wardship: Jurisdiction) CA 1974
The court summarised the principles as to the return of a child to a foreign country without conducting a full investigation of the merits: ‘To take a child from his native land, to remove him to another country where, maybe, his native tongue is . .
Cited – Re P (A Minor)(Child Abduction: Non Convention Country) CA 1997
The Hague Convention concepts are not to be applied in a non-Convention case. . .
Cited – Re R (Minors)(Wardship: Jurisdiction) CA 1981
When considering tha return of a child to a foreign jurisdiction, the ‘so-called kidnapping’ of the child, or the order of a foreign court, were relevant considerations: ‘but the weight to be given to either of them must be measured in terms of the . .
Cited – In Re M (Minors) (Abduction: Peremptory Return Order) CA 20-Nov-1995
An English court should usually assume that proceedings abroad will provide for a fair hearing. The court refused to admit evidence of the legal system in Dubai and assumed that the wife would receive a fair hearing there. . .
Cited – Ahsan Ullah, Thi Lien Do v Special Adjudicator, Secretary of State for the Home Department CA 16-Dec-2002
The appellants challenged refusal of asylum, claiming that their return to countries which did not respect their religion, would infringe their right to freedom of religious expression. It was accepted that the applicants did not have a sufficient . .

Cited by:

Cited – Re M and another (Children) (Abduction; Rights of Custody) HL 5-Dec-2007
Three children had been brought from Zimbabwe by their mother against the wishes of the father and in breach of his rights there. The mother appealed an order for their return.
Held: The mother’s appeal was allowed. The House had to consider . .
Cited – EM (Lebanon) v Secretary of State for the Home Department HL 22-Oct-2008
The claimant challenged the respondent’s decision to order the return of herself and her son to Lebanon.
Held: The test for whether a claimant’s rights would be infringed to such an extent as to prevent their return home was a strict one, but . .
Cited – Re S (A Child) SC 14-Mar-2012
The mother appealed against an order confirmed by the Court of Appeal for the return of her child to Australia. The mother and father had cohabited in Sydney, before M returned with S without F’s consent or the permission of an Australian court. The . .
Cited – AI v MT FD 30-Jan-2013
The parties had asked the court to apply rabbinical law in resolving their matrimonial proceedings, applying by consent the result of a rabbinical arbitration.
Held: The court could not accept an ouster of its jurisdiction over children of the . .
Cited – Re KL (A Child) SC 4-Dec-2013
How should the courts of this country react when a child is brought here pursuant to an order made abroad in proceedings under the Hague Convention on the Civil Aspects of International Child Abduction which is later over-turned on appeal? K was a . .
Cited – In re J (A Child) SC 25-Nov-2015
The court considered for the first time the scope of the jurisdiction conferred by article 11 of the 1996 Convention ‘in all cases of urgency’ upon the Contracting State where a child is present but not habitually resident. F had obtained an order . .
Cited – Re J (A Child) (1996 Hague Convention) (Morocco) CA 1-Apr-2015
M appealed against an order for the return of her child to Morocco. Both parents had dual Moroccan and UK citizenship. The child was born in the UK, but later lived with them in Morocco. The parents split, with M awarded custody in Morocco, but . .
Cited – Re C (Children) SC 14-Feb-2018
‘This appeal concerns the Hague Convention on the Civil Aspects of International Child Abduction. It raises general questions relating to:
(1) the place which the habitual residence of the child occupies in the scheme of that Convention, and . .
Cited – In re NY (A Child) (Reunite International and others intervening) SC 30-Oct-2019
The father had applied for a summary order requiring the return of the daughter to Israel. The Court was asked to consider whether the Court of Appeal, having determined that such an order could not be granted under the Hague Convention on the Civil . .
Lists of cited by and citing cases may be incomplete.

Children, International

Updated: 06 May 2022; Ref: scu.226746

Re M and another (Children) (Abduction; Rights of Custody): HL 5 Dec 2007

Three children had been brought from Zimbabwe by their mother against the wishes of the father and in breach of his rights there. The mother appealed an order for their return.
Held: The mother’s appeal was allowed. The House had to consider the extent of the exceptions to the duty to return children. It was not appropriate for English Courts to add a gloss to the tests set down in the Convention by inserting the word ‘exceptionally’, but instead the Convention should be applied in its terms. Because the children had become settled here after residing here for more than two years, they should not be returned.
Baroness Hale explained as follows: ‘In Convention cases, however, there are general policy considerations which may be weighed against the interests of the child in the individual case. These policy considerations include, not only the swift return of abducted children, but also comity between the contracting states and respect for one another’s judicial processes. Furthermore, the Convention is there, not only to secure the prompt return of abducted children, but also to deter abduction in the first place. The message should go out to potential abductors that there are no safe havens among the contracting states.
My Lords, in cases where a discretion arises from the terms of the Convention itself, it seems to me that the discretion is at large. The court is entitled to take into account the various aspects of the Convention policy, alongside the circumstances which gave the court a discretion in the first place and the wider considerations of the child’s rights and welfare.’

Judges:

Lord Bingham of Cornhill, Lord Hope of Craighead, Lord Rodger of Earlsferry, Baroness Hale of Richmond, Lord Brown of Eaton-under-Heywood

Citations:

[2007] UKHL 55, Times 06-Dec-2007, [2007] 3 WLR 975, [2008] AC 1288, [2008] 1 All ER 1157, [2008] 1 FCR 536, [2008] 1 FLR 251, [2008] Fam Law 298

Links:

Bailii

Statutes:

Child Abduction and Custody Act 1985 5, Hague Convention on the Civil Aspects of International Child Abduction

Jurisdiction:

England and Wales

Citing:

Cited – Re C (Abduction: Settlement) FD 28-May-2004
The mother had unlawfully and against the father’s wishes, brought the child to the UK from the US. She hid their identity and whereabouts for a year, and resisted the father’s request for his return to the US, saying the child was settled here.
Cited – Re J (A Child), Re (Child returned abroad: Convention Rights); (Custody Rights: Jurisdiction) HL 16-Jun-2005
The parents had married under shariah law. They left the US to return to the father’s home country Saudi Arabia. They parted, and the mother brought their son to England against the father’s wishes and in breach of an agreement. The father sought . .
Appeal from – Re M (Children) CA 12-Sep-2007
. .
At first instance – MM v VM (Also VRM) FD 26-Jul-2007
. .
Cited – In re D (A Child), (Abduction: Rights of Custody) HL 16-Nov-2006
The child had been born to parents who married and later divorced in Romania. The mother brought him to England without the father’s consent, and now appealed an order for his return.
Held: The mother’s appeal succeeded. The Convention . .

Cited by:

Cited – AF v M B-F FD 22-Feb-2008
The father sought the return of the two children to Poland after they had been brought to England by the mother. She said that she had come to seek work as a dentist, and had been unable to support the family in Poland. She said that her Polish . .
Applied – In re O (Children) CA 16-Feb-2011
The family had Nigerian nationality, but the father also had US nationality. After the split, M wanted to live with the children in Nigeria, and F wanted them with him in the US. On M’s visit to the UK from Nigeria with the children, the father . .
Cited – Re E (Children) (Abduction: Custody Appeal) SC 10-Jun-2011
Two children were born in Norway to a British mother (M) and Norwegian father (F). Having lived in Norway, M brought them to England to stay, but without F’s knowledge or consent. M replied to his application for their return that the children would . .
Cited – In re NY (A Child) (Reunite International and others intervening) SC 30-Oct-2019
The father had applied for a summary order requiring the return of the daughter to Israel. The Court was asked to consider whether the Court of Appeal, having determined that such an order could not be granted under the Hague Convention on the Civil . .
Lists of cited by and citing cases may be incomplete.

Children, International

Updated: 06 May 2022; Ref: scu.261808

Browne v Ryan: 1901

(Ireland – Court of Appeal) A farmer mortgaged his holding to secure andpound;200 and interest; and, as part of the mortgage transaction, it was stipulated that the mortgagor should sell his holding within twelve months, employ the mortgagee as the auctioneer at a certain commission, and pay him the like commission if the conduct of the sale was given to any one else.
Held: The stipulation had no effect after redemption.

Citations:

[1901] 2 IR 653

Cited by:

Cited – Noakes and Co Ltd v Rice HL 17-Dec-2001
A charge on a public house provided that even after repayment of the principal, the owner continued to be obliged to purchase his beer from the brewery, and that any non-payment would be charged on the property.
Held: The clauses operated as a . .
Lists of cited by and citing cases may be incomplete.

International, Equity

Updated: 05 May 2022; Ref: scu.276436

Regina v Chief Immigration Officer, Heathrow Airport, Ex parte Salamat Bibi: CA 1976

Lord Denning MR said that: ‘Treaties and declarations do not become part of our law until they are made law by Parliament’.
Iin relation to the application of broad Convention principles in the context of immigration powers, he said: ‘I desire, however, to amend one of the statements I made in the Bhajan Singh case [1976] Q.B. 198, 207. I said then that the immigration officers ought to bear in mind the principles stated in the Convention. I think that that would be asking too much of the immigration Officers. They cannot be expected to know or to apply the Convention. They must go simply by the immigration rules laid down by the Secretary of State, and not by the Convention.’

Judges:

Roskill LJ, Lord Denning MR

Citations:

[1976] 1 WLR 979, [1976] 3 All ER 843

Jurisdiction:

England and Wales

Cited by:

Cited – Hurst, Regina (on the Application of) v Commissioner of Police of the Metropolis v London Northern District Coroner HL 28-Mar-2007
The claimant’s son had been stabbed to death. She challenged the refusal of the coroner to continue with the inquest with a view to examining the responsibility of any of the police in having failed to protect him.
Held: The question amounted . .
Lists of cited by and citing cases may be incomplete.

Administrative, International, Immigration

Updated: 05 May 2022; Ref: scu.272888

Solomons v Ross: 1764

A firm in Amsterdam was declared bankrupt and assignees were appointed. An English creditor brought garnishee proceedings in London to attach andpound;1200 owing to the Dutch firm.
Held: The court decreed that the bankruptcy had vested all the firm’s moveable assets, including debts owed by English debtors, in the Dutch assignees. The English creditor had to surrender the fruits of the garnishee proceedings and prove in the Dutch bankruptcy. The Dutch curator was entitled to recover the English debt in priority to an English creditor of the merchants who had attached the debt after the bankruptcy.

Judges:

Bathurst J

Citations:

(1764) 1 H Bl 131n

Cited by:

Cited – Cambridge Gas Transport Corp v Official Committee of Unsecured Creditors (of Navigator Holdings Plc and Others) PC 16-May-2006
(Isle of Man) A scheme of arrangement was proposed for a company with involvement in several jurisdictions. An order in New York sought assistance in the vesting of shares and assets in the Isle of Man in the creditors committee. Cambridge was a . .
Cited – Rubin and Another v Eurofinance Sa and Others SC 24-Oct-2012
The Court was asked ‘whether, and if so, in what circumstances, an order or judgment of a foreign court . . in proceedings to adjust or set aside prior transactions, eg preferences or transactions at an undervalue, will be recognised and enforced in . .
Lists of cited by and citing cases may be incomplete.

Insolvency, International

Updated: 05 May 2022; Ref: scu.266725

Re E (Children) (Abduction: Custody Appeal): SC 10 Jun 2011

Two children were born in Norway to a British mother (M) and Norwegian father (F). Having lived in Norway, M brought them to England to stay, but without F’s knowledge or consent. M replied to his application for their return that the children would be at risk if returned, alleging psychological abuse by F. She argued that article 13(b) of the 1980 convention should be applied against the background of article 3.1 of 1989 Convention so as to make the welfare of the children paramount. M appealed against rejection of her claim.
Held: The appeal failed. The court considered the interaction of the Hague Covention on Child Abduction and the Human Rights Convention after the decision in Neulinger in which the Grand Chamber had given preference to the latter. Both the Hague Convention and the Brussels II revised Regulation have been devised with the best interests of children generally, and of the individual children involved in such proceedings, as a primary consideration. The 1980 Convention set out to serve children’s interests with a summary remedy to allow their return to their home country where the matter could be looked at fully. It did so by making certain assumptions, though with safeguards. The Neulinger case appeared now to invite consideration of the circumstances before a child’s return, but a gloss had since been provided that ‘the logic of the Hague Convention is that a child who has been abducted should be returned to the jurisdiction best-placed to protect his interests and welfare, and it is only there that his situation should be reviewed in full.’ In the light of this and the judge’s findings that M and the children would receive protection in Norway, the appeal was rejected.
The exceptions required to resists summary return should be applied strictly and without further judicial gloss.
‘the whole of the Hague Convention is designed for the benefit of children, not of adults. The best interests, not only of children generally, but also of any individual child involved are a primary concern in the Hague Convention process. We agree with the Strasbourg court that in this connection their best interests have two aspects: to be reunited with their parents as soon as possible, so that one does not gain an unfair advantage over the other through the passage of time; and to be brought up in a ‘sound environment’, in which they are not at risk of harm. The Hague Convention is designed to strike a fair balance between those two interests. If it is correctly applied it is most unlikely that there will be any breach of article 8 or other Convention rights unless other factors supervene. Neulinger does not require a departure from the normal summary process, provided that the decision is not arbitrary or mechanical. The exceptions to the obligation to return are by their very nature restricted in their scope. They do not need any extra interpretation or gloss.’
Baroness Hale and Lord Wilson observed: ‘The first object of the Convention is to deter either parent (or indeed anyone else) from taking the law into their own hands and pre-empting the result of any dispute between them about the future upbringing of their children. If an abduction does take place, the next object is to restore the children as soon as possible to their home country, so that any dispute can be determined there. The left-behind parent should not be put to the trouble and expense of coming to the requested state in order for factual disputes to be resolved there. The abducting parent should not gain an unfair advantage by having that dispute determined in the place to which she has come.’

Judges:

Lord Hope, Deputy President, Lord Walker, Lady Hale, Lord Kerr, Lord Wilson

Citations:

[2011] UKSC 27, UKSC 2011/0084, [2011] 2 WLR 1326, [2011] 2 FCR 419, [2012] 1 AC 144, [2011] Fam Law 919, [2011] 2 FLR 758, [2011] UKHRR 701, [2011] HRLR 32, [2011] 4 All ER 517

Links:

Bailii, Bailii Summary, SC Summary, SC

Statutes:

United Nations Convention on the Rights of the Child 1989, Hague Convention on the Civil Aspects of International Child Abduction 1980, European Convention on Human Rights 8, Child Abduction and Custody Act 1985

Jurisdiction:

England and Wales

Citing:

Cited – TB v JB (Formerly J H) (Abduction: Grave Risk of Harm) CA 19-Dec-2000
The father appealed against rejection of his claim for the return of his three children to New Zealand. . .
Appeal From – Eliassen and Another v Eliassen and Others CA 1-Apr-2011
M (British) and F (Norwegian) had their two daughters in Norway. M removed them to England saying that she feared F’s alleged psychological abuse of the children. She now appealed against an order for their return arguing that the exception to the . .
Cited – In re D (A Child), (Abduction: Rights of Custody) HL 16-Nov-2006
The child had been born to parents who married and later divorced in Romania. The mother brought him to England without the father’s consent, and now appealed an order for his return.
Held: The mother’s appeal succeeded. The Convention . .
Cited – ZH (Tanzania) v Secretary of State for The Home Department SC 1-Feb-2011
The respondent had arrived and claimed asylum. Three claims were rejected, two of which were fraudulent. She had two children by a UK citizen, and if deported the result would be (the father being unsuitable) that the children would have to return . .
Cited – Re M and another (Children) (Abduction; Rights of Custody) HL 5-Dec-2007
Three children had been brought from Zimbabwe by their mother against the wishes of the father and in breach of his rights there. The mother appealed an order for their return.
Held: The mother’s appeal was allowed. The House had to consider . .
Cited – Neulinger And Shuruk v Switzerland ECHR 6-Jul-2010
(Grand Chamber) The Swiss Court had rejected the claimant mother’s claim, under article 13b of the Hague Convention, that there was a grave risk that returning the child to Israel would lead to physical or psychological harm or otherwise place him . .
Cited – Maumousseau and Washington v France ECHR 6-Dec-2007
The child’s mother (M) complained that the effective operation of the Hague Convention, in ordering the return of the applicant’s daughter to her habitual residence in the United States, M having taken her to France for the holidays and refused to . .
Cited – Daniela Lipkowsky And India Dawn McCormack v Germany ECHR 18-Jan-2011
. .
Cited – Miranda Van Den Berg And Noa Sarri v The Netherlands ECHR 2-Nov-2010
A mother was complaining that the Dutch courts had ordered the return of her daughter and had rejected her case under article 13b. . .
Cited – Raban v Romania ECHR 26-Oct-2010
The father complained that the Romanian courts had not ordered the return of his daughter when in his view they should have done. . .

Cited by:

Cited – Castle and Others v Commissioner of Police for The Metropolis Admn 8-Sep-2011
The claimants, all under 17 years old, took a peaceful part in a substantial but disorderly demonstration in London. The police decided to contain the section of crowd which included the claimants. The claimants said that the containment of children . .
Cited – Re S (A Child) SC 14-Mar-2012
The mother appealed against an order confirmed by the Court of Appeal for the return of her child to Australia. The mother and father had cohabited in Sydney, before M returned with S without F’s consent or the permission of an Australian court. The . .
Cited – Re C (Children) SC 14-Feb-2018
‘This appeal concerns the Hague Convention on the Civil Aspects of International Child Abduction. It raises general questions relating to:
(1) the place which the habitual residence of the child occupies in the scheme of that Convention, and . .
Cited – In re NY (A Child) (Reunite International and others intervening) SC 30-Oct-2019
The father had applied for a summary order requiring the return of the daughter to Israel. The Court was asked to consider whether the Court of Appeal, having determined that such an order could not be granted under the Hague Convention on the Civil . .
Lists of cited by and citing cases may be incomplete.

Children, Human Rights, International

Updated: 05 May 2022; Ref: scu.440571

Attorney-General for the United Kingdom v Wellington Newspapers Ltd: 1988

(New Zealand) The British government sought to prevent the publication in New Zealand of a book (‘Spycatcher’) written by a retired secret service officer saying that it was based in part on information received by him in confidence.
Held: The court accepted the existence of a residual category of ‘public laws’, but ‘it would seem anachronistic for the Courts to deny themselves the power to do what they can to safeguard the security of a friendly foreign state.’

Judges:

Sir Robin Cooke P

Citations:

[1988] 1 NZLR 129

Jurisdiction:

England and Wales

Cited by:

Cited – Mbasogo, President of the State of Equatorial Guinea and Another v Logo Ltd and others CA 23-Oct-2006
Foreign Public Law Not Enforceable Here
The claimant alleged a conspiracy by the defendants for his overthrow by means of a private coup d’etat. The defendants denied that the court had jurisdiction. The claimants appealed dismissal of their claim to damages.
Held: The claims were . .
Lists of cited by and citing cases may be incomplete.

International

Updated: 04 May 2022; Ref: scu.245576

Twycross v Dreyfus: CA 1877

State immunity is not to be got around by suing the employees of the state. Here, the only possible case was against the state itself.
Sir George Jessel MR said: ‘the municipal law of this country does not enable the tribunals of this country to exercise any jurisdiction over foreign governments as such. Nor, so far as I am aware, is there any international tribunal which exercises any such jurisdiction. The result, therefore, is that these so-called bonds amount to nothing more than engagements of honour, binding, so far as engagements of honour can bind, the government which issues them, but are not contracts enforceable before the ordinary tribunals of any foreign government . . without the consent of the government of that country.’

Judges:

Sir George Jessel MR

Citations:

(1877) LR 5 Ch D 605

Jurisdiction:

England and Wales

Cited by:

Cited – Jones v Ministry of Interior for the Kingdom of Saudi Arabia and others HL 14-Jun-2006
The claimants said that they had been tortured by Saudi police when arrested on false charges. They sought damages, and appealed against an order denying jurisdiction over the defendants. They said that the allegation of torture allowed an exception . .
Cited – NML Capital Ltd v Argentina SC 6-Jul-2011
The respondent had issued bonds but in 2001 had declared a moratorium on paying them. The appellant hedge fund later bought the bonds, heavily discounted. Judgment was obtained in New York, which the appellants now sought to enforce against assets . .
Lists of cited by and citing cases may be incomplete.

International, Jurisdiction

Updated: 04 May 2022; Ref: scu.242889

HKSAR v Li Kwok Cheung George: 5 Jun 2014

Hong Kong Court of Final Appeal The court considered the wording of a Hong Kong money laundering ordinance.
Held: Ribeiro and Fok PJJ said in their joint judgment with which the other members of the Court of Final Appeal agreed, saying: ‘It is one thing to criminalise dealing with funds where the dealer knows or has reasonable grounds to believe that they are the proceeds of crime, it is quite a different matter to stigmatise as a money launderer, a lender dealing with its own ‘clean’ funds because of what the borrower does or intends to do with them.’

Judges:

Mr Justice Ribeiro PJ, Mr Justice Tang PJ,, Mr Justice Fok PJ, Mr Justice Bokhary NPJ,, Lord Collins of Mapesbury NPJ

Citations:

[2014] HKCFA 48, [2014] 4 HKC 101

Links:

HKLII, Hklii, Hklii Summary

Jurisdiction:

England and Wales

Cited by:

Cited – GH, Regina v SC 22-Apr-2015
Appeal against conviction for entering into an arrangement for the retention of criminal funds. The defendant said that at the time of the arrangement there were not yet any criminal funds in existence. A had set up websites intending to con . .
Lists of cited by and citing cases may be incomplete.

Crime, International

Updated: 04 May 2022; Ref: scu.565398

Jet Aviation (Singapore) Pte Ltd v Jet Maintenance Pte Ltd: 1998

(High Court of Sigapore) Where there is no loss or division of business or reasonable likelihood of such loss resulting from a confusion of names, there is no cause of action in passing off.

Judges:

Warren LH Khoo J

Citations:

[1998] 3 SLR 287

Cited by:

Cited – Starbucks (HK) Ltd and Another v British Sky Broadcasting Group Plc and Others SC 13-May-2015
The court was asked whether, as the appellants contended, a claimant who is seeking to maintain an action in passing off need only establish a reputation among a significant section of the public within the jurisdiction, or whether, as the courts . .
Lists of cited by and citing cases may be incomplete.

International, Intellectual Property

Updated: 04 May 2022; Ref: scu.566017

Moffett v Brewer: 1848

Greene J said: ‘This summary method of redressing a grievance, by the act of an injured party, should be regarded with great jealousy, and authorised only in cases of particular emergency, requiring a more speedy remedy than can be had by the ordinary proceedings at law.’

Judges:

Greene J

Citations:

(1848) Iowa 1 Greene 348

Cited by:

Cited – Burton v Winters CA 2-Jun-1993
The defendant’s garage had encroached by one brick’s width on the plaintiff’s land and had been built in 1975. The plaintiff obtained a declaration that that was the position in 1990 but was refused the mandatory injunction which she sought. The . .
Cited – Chamberlain v Lindon Admn 18-Mar-1998
The appellant challenged the dismissal of his private prosecution of the defendant in destroying a new garden wall. The magistrates had found a lawful excuse in that the defendant said that the wall had been constructed to obstruct his private right . .
Lists of cited by and citing cases may be incomplete.

Torts – Other, International

Updated: 04 May 2022; Ref: scu.541705

Davis v Beason, Sheriff: 3 Feb 1890

United States Supreme Court. The defendant claimed that the First Amendment insulated from civil punishment certain practices inspired or motivated by religious beliefs.
Held: The assetion failed: ‘It was never intended or supposed that the amendment could be invoked as a protection against legislation for the punishment of acts inimical to the peace, good order, and morals of society.’ The Court adopted a strictly theistic definition of religion.

Judges:

Field J

Citations:

133 US 333 (1890), 33 L Ed 637, 10 SCt 299

Links:

Worldlii

Cited by:

Cited – Hodkin and Another, Regina (on The Application of) v Registrar-General of Births, Deaths and Marriages SC 11-Dec-2013
The appellants sought to be married in their regular church in London. The minister would be pleased to perform the ceremony, but church to which they belonged was part of the Church of Scientology, and had been refused registration under the 1855 . .
Lists of cited by and citing cases may be incomplete.

International, Ecclesiastical, Constitutional

Updated: 04 May 2022; Ref: scu.540529

United States v Seeger: 8 Mar 1965

United States Supreme Court – The respondent claimed conscientius objection to serving in the armed forces.

Judges:

Clark J

Citations:

380 US 163 (1965)

Links:

Wordlii

Cited by:

Cited – Welsh v United States 15-Jun-1970
United States Supreme Court – The appellant had refused to submit to joining the Armed Forces because he was ‘by reason of religious training and belief . . conscientiously opposed to participation in war in any form.’ . .
Cited – Hodkin and Another, Regina (on The Application of) v Registrar-General of Births, Deaths and Marriages SC 11-Dec-2013
The appellants sought to be married in their regular church in London. The minister would be pleased to perform the ceremony, but church to which they belonged was part of the Church of Scientology, and had been refused registration under the 1855 . .
Lists of cited by and citing cases may be incomplete.

International, Ecclesiastical

Updated: 04 May 2022; Ref: scu.540530

Welsh v United States: 15 Jun 1970

United States Supreme Court – The appellant had refused to submit to joining the Armed Forces because he was ‘by reason of religious training and belief . . conscientiously opposed to participation in war in any form.’

Judges:

Black, Douglas, Marshall, Brennan JJ

Citations:

398 US 333 (1970), [1970] USSC 147, 90 SCt 1792, 26 Led 2d 308

Links:

Worldlii

Citing:

Cited – United States v Seeger 8-Mar-1965
United States Supreme Court – The respondent claimed conscientius objection to serving in the armed forces. . .

Cited by:

Cited – Hodkin and Another, Regina (on The Application of) v Registrar-General of Births, Deaths and Marriages SC 11-Dec-2013
The appellants sought to be married in their regular church in London. The minister would be pleased to perform the ceremony, but church to which they belonged was part of the Church of Scientology, and had been refused registration under the 1855 . .
Lists of cited by and citing cases may be incomplete.

International, Ecclesiastical

Updated: 04 May 2022; Ref: scu.540531

Al-Dulimi and Montana Management Inc v Switzerland: ECHR 26 Nov 2013

The applicants alleged, in particular, that the confiscation of their assets had been ordered in the absence of any procedure complying with Article 6 of the Convention.
Held: There had been a violation despite the fact that Switzerland was under a clear international obligation, pursuant to article 25 of the UN Charter, to implement the terms of a Security Council resolution requiring the applicants’ assets to be frozen in this manner: ‘ . . the Convention cannot be interpreted in a vacuum but must be interpreted in harmony with the general principles of international law. Account should be taken, as indicated in Article 31(1)(c) of the Vienna Convention on the Law of Treaties of 1969, of ‘any relevant rules of international law applicable in the relations between the parties, and in particular the rules concerning the international protection of human rights”.

Judges:

Guido Raimondi, P

Citations:

5809/08

Links:

ECHR

Statutes:

European Convention on Human Rights 6

Cited by:

Cited – Reyes and Another v Al-Malki and Another CA 5-Feb-2015
The claimants wished to make employment law claims alleging, inter alia, that they had suffered racial discrimination and harassment, and had been paid less than the national minimum wage aganst the respondents. They had been assessed as having been . .
Lists of cited by and citing cases may be incomplete.

Human Rights, International

Updated: 04 May 2022; Ref: scu.542437

North River Ins Co v American Home Assurance Co: 15 Mar 1989

California Court of Appeals

Judges:

Woods (Fred), J, Lillie, P J., and Johnson, J

Citations:

(1989) 210 Cal App 3d 108

Links:

Justia

Cited by:

Cited – Teal Assurance Company Ltd v WR Berkley Insurance (Europe) Ltd SC 31-Jul-2013
An international engineering company had several layers of professional indemnity insurance. The top later did not cover claims originating in the US or Canada. The several insurers now disputed apportionment of liability between them. The . .
Lists of cited by and citing cases may be incomplete.

International, Insurance

Updated: 04 May 2022; Ref: scu.540463

Perez v Brownell: 31 Mar 1958

(United States Supreme Court)
Warren CJ (dissenting) described a right to nationality as ‘man’s basic right for it is nothing less than the right to have rights’.

Judges:

Frankfurter J, Warren CJ

Citations:

[1958] USSC 56, 356 US 44, 78 SCt 568, 2 LEd2d 603

Links:

Worldlii

Cited by:

Cited – Secretary of State for The Home Department v Al-Jedda SC 9-Oct-2013
The claimant had obtained British citizenship, but had had it removed by the appellant by an order under the 1981 Act after he came to be suspected of terrorist involvement. He had appealed against the order, eventually succeeding on the basis that . .
Lists of cited by and citing cases may be incomplete.

International, Immigration

Updated: 04 May 2022; Ref: scu.540465

Malnak v Yogi: 2 Feb 1979

United States Court of Appeals – Third Circuit. The court considered whether the programme of teaching transcendental meditation and its associated Science of Creative Intelligence was a religious activity and so was not to be allowed to be taught in state schools.
Held: It was such. Judge Adams, said that religion bore the same meaning in that context as in the free exercise of religion clause of the Constitution, noting that the law had moved towards a broader approach in recognition of the fact that adherence to the traditional definition would deny religious identification to the faiths adhered to by millions of Americans.
Adams J thought that it wa one thing to conclude ‘by analogy’ that a particular group of ideas is religious; it was quite another to explain what indicia are to be looked at in making such an analogy and justifying it. He identified three such indicia.
The first was that the belief system is concerned with the ultimate questions of human existence: the meaning of life and death, mankind’s role in the universe, the proper moral code of right and wrong. The second was that the belief system is comprehensive in the sense that it provides an all-embracing set of beliefs in answer to the ultimate questions. The third was that there were external signs that the belief system was of a group nature which could be analogised to accepted religions. Such signs might include formal services, ceremonial functions, the existence of clergy, structure and organisation, and attempts at propagation. These indicia were not to be thought of as a final test for a religion. Rather, they were features which recognised religions would typically exhibit.

Judges:

Aldisert, Adams and Hunter, Circuit Judges

Links:

Worldlii

Cited by:

Cited – Hodkin and Another, Regina (on The Application of) v Registrar-General of Births, Deaths and Marriages SC 11-Dec-2013
The appellants sought to be married in their regular church in London. The minister would be pleased to perform the ceremony, but church to which they belonged was part of the Church of Scientology, and had been refused registration under the 1855 . .
Lists of cited by and citing cases may be incomplete.

Ecclesiastical, International, Education

Updated: 04 May 2022; Ref: scu.540527

Gross v Seligman: 1914

United States – Second Circuit – The copying of a photograph so as to infringe does not require a facsimile reproduction, it is enough to recreate the scene or a substantial part of it. Infringement is not confined to exact reproduction but includes colorable alterations made to disguise the piracy.

Citations:

212 F 930 (1914)

Cited by:

Cited – Temple Island Collections Ltd v New English Teas Ltd and Another PCC 12-Jan-2012
The claimant asserted infringement of their copyright in a photograph. It showed the Houses of Parliament in black and white with a London bus in red. The original action had been settled and the proposed image withdrawn as a copy. The defendants . .
Lists of cited by and citing cases may be incomplete.

Intellectual Property, International

Updated: 04 May 2022; Ref: scu.535640

Phrantzes v Argenti: CA 1960

The court was asked to enforce payment of a dowry which was owed under Greek law.
Held: English law does not guarantee a remedy for every foreign cause of action. Lord Parker CJ said that to be available in support of a foreign cause of action, the remedies afforded by English law ‘must harmonise with the right according to its nature and extent as fixed by the foreign law.’
What the High Court had said about the obligatio theory might be confined to foreign torts.

Judges:

Lord Parker CJ

Citations:

[1960] 2 QB 19, [1960] 1 All ER 778

Cited by:

Cited – Cox v Ergo Versicherung Ag SC 2-Apr-2014
The deceased army officer serving in Germany died while cycling when hit by a driver insured under German law. His widow, the claimant, being domiciled in England brought her action here, claiming for bereavement and loss of dependency. The Court . .
Lists of cited by and citing cases may be incomplete.

Torts – Other, International

Updated: 04 May 2022; Ref: scu.523694

Hearn v Rhay: 1975

(United States District Court, Eastern District of Washington) Neill CJ said: ‘All of these established exceptions to the rules of privilege have a common denominator; in each instance, the party asserting the privilege placed information protected by it in issue through some affirmative act for his own benefit, and to allow the privilege to protect against disclosure of such information would have been manifestly unfair to the opposing party. The factors common to each exception may be summarized as follows: (I) assertion of the privilege was a result of some affirmative act, such as filing suit, by the asserting party; (2) through this affirmative act, the asserting party put the protected information at issue by making it relevant to the case; and (3) application of the privilege would have denied the opposing party access to information vital to his defense. Thus, where these conditions exist, a court should find that the party asserting a privilege has impliedly waived it through his own affirmative conduct.’

Judges:

Neil CJ

Citations:

(1975) 68 FRD 574

Cited by:

Cited – Farm Assist Ltd v Secretary of State for Environment Food and Rural Affairs TCC 12-Dec-2008
The claimant, now in liquidation, sought to have set aside for economic duress the mediated settlement of its dispute with the defendant. The defendant sought disclosure of legal and similar advice given to the claimant.
Held: Paragon Finance . .
Cited – Nederlandse Reassurantie Groep Holding NV v Bacon and Woodrow Holding 1995
A Dutch corporation had obtained advice from lawyers and other professionals before purchasing share capital in insurance companies. After the purchase the corporation discovered that it was exposed to large losses and began proceedings in . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, International

Updated: 04 May 2022; Ref: scu.521201

Rossano v Manufacturers Life Insurance Co: 1963

The plaintiff an Egyptian national bought insurance from the defendant Canadian company (MLI) with branches inter alia in Egypt. When the policies matured, Rassano brought an action in England claiming the money due under them. In defence, MLI argued, inter alia, that it was not liable to pay Rossano such sums as garnishee orders had been served upon MLI’s Egyptian branch by the Egyptian tax department in respect of tax alleged to be due by Rassano and that payment to Rossano would expose MLI to the risk of having to pay the money twice. The policies prescribed the mode of payment as by banker’s demand draft on London ‘on New York’ ie, the situs of the debt was not Egypt.
Held: McNair J relied refused recognition of the validity of the garnishment orders, saying that recognition of those orders would offend against the well-settled principle that an English court would not enforce a foreign revenue law.
However, McNair J addressed the parties following arguments on the choice of law question outlined by the learned judge. On behalf of MLI it was submitted (1) that whatever be the proper law of the contract, the debt is and was situated in Cairo and that debt has been validly attached in the country where it was situated; (2) that an English court will as a matter of private international law recognise and give effect to the validity of that attachment and not put a garnishee in peril of having to pay twice, and that it does not matter whether the attachment proceedings are in respect of a revenue claim; (3) that if the debt is not situated in Egypt, the English court will as a matter of comity give effect to the proceedings and will not put the garnishee in peril of having to pay twice if the court is satisfied (a) that by the law of the place of attachment the situs of the debt is in that place, that is, Egypt; or (b) that by the law of the place of attachment there is jurisdiction over the debtor, Rossano, the garnishee, MLI, and the garnishor, the Egyptian tax department.
Rossano had submitted (1) that the situs of the debt was not Egypt; (2) that the garnishee orders were invalid (3) that the garnishee orders provide no defence since (a) no payment has been made under either or (b) Neither of them was made until after the maturity date on which MLI should have paid; (4) that the court should not recognise the garnishee order as to do so would be indirectly at least to enforce a foreign revenue law; and (5) that the orders being in the nature of administrative orders and not orders of any court, an English court will not enforce them. McNair J said: ‘Many of the points raised in these submissions raise difficult questions of private international law upon which English authority is scanty. But as I have reached the conclusion that the fundamental objection to the recognition of these orders is that their recognition would offend against the well-settled principle that the English court will not recognise or enforce directly or indirectly a foreign revenue law or claim, it is not necessary for me as a matter of decision to deal with many of the other points raised.’ He went on to observe obiter: ‘on the assumption that the garnishee orders or either of them are valid by Egyptian law, and by that law binding upon [MLI] . . being garnishee or sequestration orders imposed by the act of the executive, and not the result of any judicial proceedings, must or should an English court afford them recognition . . The editors of Dicey when stating in rule 92 that the validity and effect of an attachment or garnishment of a debt is governed by the lex situs of the debt are clearly referring to garnishee orders made by a competent court. I should not be disposed on general principles to extend the recognition further.’

Judges:

McNair J

Citations:

[1963] 2 QB 352

Jurisdiction:

England and Wales

Cited by:

Cited – Revenue and Customs and Another v Ben Nevis (Holdings) Ltd and Others ChD 20-Jul-2012
The claimant sought to make arrangements with a view to collecting substantial arrears of tax due to South Africa. The revenue said that it had that power by virtue of the double taxation treaty with South Aftrica. The company replied that the . .
Lists of cited by and citing cases may be incomplete.

Taxes Management, International

Updated: 04 May 2022; Ref: scu.519311

Regazzoni v KC Sethia (1994) Ltd: CA 1956

The rule against enforcing foreign political laws did not require it to enforce a contract that violated Indian laws against export to South Africa. The court permitted recognition but not enforcement of foreign revenue laws.
Denning LJ said: ‘if two people knowingly agree together to break the laws of a friendly country or to procure someone else to break them or to assist in the doing of it, then they cannot ask this court to give its aid to the enforcement of their agreement.’

Judges:

Parker, Denning LJJ

Citations:

[1956] 2 QB 490, [1956] 2 All ER 487

Jurisdiction:

England and Wales

Cited by:

Cited – Fielding and Platt Ltd v Selim Najjar CA 17-Jan-1969
The plaintiff company had contracted to make and export to the defendant an aluminium extrusion press. The defendant re-assured the plaintiff that it would be lawful for him to import the plant, but asked that the plant be described falsely on the . .
from – Regazzoni v Sethia HL 1957
The House considered a mutual intention of both parties to perform a contract, which was not illegal on its face, but in a manner which was contrary to the law of the place where it was to be performed.
Held: Lord Reid said: ‘To my mind, the . .
Lists of cited by and citing cases may be incomplete.

Contract, International

Updated: 04 May 2022; Ref: scu.464683

Joyce v Joyce and O’Hare: FD 1979

The Wife asked the court not to recognise a foreign decree of divorce, saying that it would deprive her of substantial fairness in ancillary relief.
Held: Lane J said: ‘If the courts of this country were empowered to grant ancillary relief on recognition of a foreign decree, the position would be somewhat different’ and ‘The jurisdiction of this court to grant the relief sought by the petitioner depends upon whether or not this court will recognize a decree of divorce pronounced and made absolute in a court of competent jurisdiction in . . Canada. If recognition is given to the Canadian decree, this court cannot adjudicate because there would then be no subsisting marriage to be dissolved.’

Judges:

Lane J

Citations:

[1979] Fam 93

Statutes:

Recognition of Divorces and Legal Separations Act 1971 8(2)

Cited by:

Cited – Golubovich v Golubovich CA 21-May-2010
The court was asked to rule as to the recognition of a foreign (Moscow) decree of divorce obtained in breach of an Hemain injunction. The Russian proceedings had got to a stage requiring H positively to apply to prevent the decree.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Family, International

Updated: 04 May 2022; Ref: scu.450575

Miranda v Arizona: 10 Oct 1966

(United States Supreme Court) The prosecution may not use statements, whether incriminatory or exculpatory, stemming from custodial interrogation of a defendant unless it demonstrated the use of procedural safeguards which were sufficient to secure the privilege against self-incrimination. These safeguards require that, unless other fully effective means are devised to inform the accused person of the right to silence and to assure continuous opportunity to exercise it, he must be warned that he has a right to remain silent, that any statement that he does make may be used as evidence against him, that he has the right to consult with an attorney and that, if he cannot afford one, a lawyer will be appointed to represent him. ‘Custodial interrogation’ for the purposes of this rule means questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.

Judges:

Warren CJ

Citations:

(1966) 384 US 436, [1966] USSC 143, (1966) 86 SCt 1602, (1966) 16 LEd2d 694

Links:

Worldlii

Cited by:

Cited – Imbrioscia v Switzerland ECHR 24-Nov-1993
The applicant had been questioned several times without access to a lawyer while he was in police custody.
Held: Overall there had been no breach of article 6(1). The right set out in article 6(3)(c) is one element, among others, of the . .
Cited – Galstyan v Armenia ECHR 15-Nov-2007
The claimant had been was arrested on his way home from a protest rally. He was made aware of his rights and expressly declined a lawyer.
Held: As it was his own choice not to have a lawyer, the authorities could not be held responsible for . .
Cited – Ambrose v Harris, Procurator Fiscal, Oban, etc SC 6-Oct-2011
(Scotland) The appellant had variously been convicted in reliance on evidence gathered at different stages before arrest, but in each case without being informed of any right to see a solicitor. The court was asked, as a devolution issue, at what . .
Cited – Murray v The United Kingdom ECHR 8-Feb-1996
The applicant had been denied legal advice for 48 hours after he had been taken into custody.
Held: There had been a violation of article 6(1) read with article 6(3)(c). However, it was not a breach of human rights to draw inferences from the . .
Considered – JDB v North Carolina 16-Jun-2011
(United States Supreme Court) The court considered the applicability of Miranda protection to a police interview of a minor. . .
Cited – McGowan (Procurator Fiscal) v B SC 23-Nov-2011
The appellant complained that after arrest, though he had been advised of his right to legal advice, and had declined the offer, it was still wrong to have his subsequent interview relied upon at his trial.
Held: It was not incompatible with . .
Lists of cited by and citing cases may be incomplete.

International, Human Rights, Criminal Practice

Updated: 04 May 2022; Ref: scu.445389

JDB v North Carolina: 16 Jun 2011

(United States Supreme Court) The court considered the applicability of Miranda protection to a police interview of a minor.

Judges:

Justice Sotomayor

Citations:

09-11121

Links:

USSC, LII

Citing:

Considered – Miranda v Arizona 10-Oct-1966
(United States Supreme Court) The prosecution may not use statements, whether incriminatory or exculpatory, stemming from custodial interrogation of a defendant unless it demonstrated the use of procedural safeguards which were sufficient to secure . .

Cited by:

Cited – Ambrose v Harris, Procurator Fiscal, Oban, etc SC 6-Oct-2011
(Scotland) The appellant had variously been convicted in reliance on evidence gathered at different stages before arrest, but in each case without being informed of any right to see a solicitor. The court was asked, as a devolution issue, at what . .
Lists of cited by and citing cases may be incomplete.

International, Criminal Practice

Updated: 04 May 2022; Ref: scu.445394

Schreiber v Canada (Attorney General): 12 Sep 2002

SCC (Supreme Court of Canada) International law – Sovereign immunity – Attornment to Canadian court’s jurisdiction exception – Germany initiating extradition process against Canadian citizen – Citizen arrested by RCMP and spending eight days in jail – Citizen suing Germany seeking damages for personal injuries suffered as a result of his arrest and detention in Canada – Whether Germany immune from jurisdiction of Canadian courts – Whether attornment to Canadian court’s jurisdiction exception applicable so as to deprive Germany of its immunity from instant action – Whether Germany waived its immunity from lawsuits in Canadian courts when it initiated extradition process – State Immunity Act, R.S.C. 1985, c. S-18, s. 4(2)(b).
International law – Sovereign immunity — Personal injury exception — Scope of exception — Germany initiating extradition process against Canadian citizen — Citizen arrested by RCMP and spending eight days in jail — Citizen suing Germany seeking damages for personal injuries suffered as a result of his arrest and detention in Canada — Whether Germany immune from jurisdiction of Canadian courts — Whether personal injury exception applicable so as to deprive Germany of its immunity from instant action — Whether exception distinguishes between jure imperii and jure gestionis acts — Whether exception applies only to claim of physical injury — State Immunity Act, R.S.C. 1985, c. S-18, s. 6(a).
Statutes — Interpretation — Bilingual statutes — Personal injury exception to state immunity — Meaning of expression ‘personal injury’ — Whether French version best reflects common intention of legislator found in both versions — Whether amendment made by Federal Law-Civil Law Harmonization Act to English version substantively changed the law — Purpose of harmonization legislation — State Immunity Act, R.S.C. 1985, c. S-18, s. 6(a) — Federal Law-Civil Law Harmonization Act, No. 1, S.C. 2001, c. 4, s. 121.

Judges:

McLachlin, Beverley; Gonthier, Iacobucci, Bastarache, Binnie, Arbour and LeBel JJ

Citations:

[2002] SCJ No 63, [2002] 3 SCR 269, [2002] SCC 62

Links:

SCC

Cited by:

Cited – The Federal Republic of Nigeria v Ogbonna EAT 12-Jul-2011
nigeria_ogbonnaEAT2011
EAT JURISDICTIONAL POINTS – State immunity
A claim for compensation for psychiatric illness caused by unlawful discrimination is a claim for ‘personal injury’ within the meaning of section 5 of the State . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, International, Extradition

Updated: 04 May 2022; Ref: scu.443606

Murray v United States: 27 Jun 1988

USSC While surveilling petitioner Murray and others suspected of illegal drug activities, federal agents observed both petitioners driving vehicles into, and later out of, a warehouse, and, upon petitioners’ exit, saw that the warehouse contained a tractor-trailer rig bearing a long container.
Petitioners later turned over their vehicles to other drivers, who were in turn followed and ultimately arrested, and the vehicles were lawfully seized and found to contain marijuana. After receiving this information, several agents forced their way into the warehouse and observed in plain view numerous burlap-wrapped bales. The agents left without disturbing the bales and did not return until they had obtained a warrant to search the warehouse. In applying for the warrant, they did not mention the prior entry or include any recitations of their observations made during that entry. Upon issuance of the warrant, they reentered the warehouse and seized 270 bales of marijuana and other evidence of crime. The District Court denied petitioners’ pretrial motion to suppress the evidence, rejecting their arguments that the warrant was invalid because the agents did not inform the Magistrate about their prior warrantless entry, and that the warrant was tainted by that entry. Petitioners were subsequently convicted of conspiracy to possess and distribute illegal drugs. The Court of Appeals affirmed, assuming for purposes of its decision on the suppression question that the first entry into the warehouse was unlawful.
Held: The Fourth Amendment does not require the suppression of evidence initially discovered during police officers’ illegal entry of private premises, if that evidence is also discovered during a later search pursuant to a valid warrant that is wholly independent of the initial illegal entry.
(a) The ‘independent source’ doctrine permits the introduction of evidence initially discovered during, or as a consequence of, an unlawful search, but later obtained independently from lawful activities untainted by the initial illegality. Silverthorne Lumber Co. v. United States, [1920] USSC 22; 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319. There is no merit to petitioners’ contention that allowing the doctrine to apply to evidence initially discovered during an illegal search, rather than limiting it to evidence first obtained during a later lawful search, will encourage police routinely to enter premises without a warrant.
(b) Although the federal agents’ knowledge that marijuana was in the warehouse was assuredly acquired at the time of the unlawful entry, it was also acquired at the time of entry pursuant to the warrant, and if that later acquisition was not the result of the earlier entry, the independent source doctrine allows the admission of testimony as to that knowledge. This same analysis applies to the tangible evidence, the bales of marijuana. United States v. Silvestri, 787 F.2d 736 (CA1, 1986), is unpersuasive insofar as it distinguishes between tainted intangible and tangible evidence. The ultimate question is whether the search pursuant to warrant was in fact a genuinely independent source of the information and tangible evidence at issue. This would not have been the case if the agents’ decision to seek the warrant was prompted by what they had seen during the initial entry or if information obtained during that entry was presented to the Magistrate and affected his decision to issue the warrant. Because the District Court did not explicitly find that the agents would have sought a warrant if they had not earlier entered the warehouse, the cases are remanded for a determination whether the warrant-authorized search of the warehouse was an independent source in the sense herein described.

Judges:

Justice Scalia

Citations:

[1988] USSC 147, 487 US 533, 108 SCt 2529

Links:

USSC

Cited by:

Cited – Her Majesty’s Advocate v P SC 6-Oct-2011
(Scotland) The appellant had been interviewed by police without being offered access to a solicitor. He complained that the interview and information obtained only through it had been used to found the prosecution.
Held: The admission of the . .
Lists of cited by and citing cases may be incomplete.

International, Criminal Practice

Updated: 04 May 2022; Ref: scu.445166

Neilson v Overseas Projects Corporation of Victoria Ltd: 29 Sep 2005

(High Court of Australia) Private international law – Foreign tort – Choice of law – Appellant was injured in the People’s Republic of China – Scope of the lex loci delicti – Where the lex loci delicti treats another connecting factor, such as nationality or domicile, as determining the applicable law – Whether Article 146 of the General Principles of Civil Law of the People’s Republic of China was a relevant part of the lex loci delicti – Whether Article 146 of the General Principles of Civil Law of the People’s Republic of China made the law of the parties’ domicile the applicable law – Whether the doctrine of renvoi applies to international tort claims – Infinite regression of reference.
Evidence – Foreign law – Principles governing admission of evidence of foreign law – Where there is a deficiency of evidence – Whether there is a presumption that foreign law is the same as the law of the forum.
Words and phrases – ‘lex loci delicti’, ‘choice of law’, ‘renvoi’, ‘single renvoi’, ‘double renvoi’, ‘infinite regression of reference’.

Judges:

Gleeson CJ, McHuh, Gummow, Kirby, Hayne, Callinan, Heydon JJ

Citations:

(2005) 223 CLR 331, [2005] HCA 54, (2005) 221 ALR 213, (2005) 79 ALJR 1736

Links:

Austlii

Cited by:

Cited – Iran v Berend QBD 1-Feb-2007
The Republic of Iran sought the return of a fragment of ancient Achaemenid relief in the possession of the defendant, saying that it was part of an ancient monument. The defendant said that she had bought it properly at an auction in Paris. The . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, International

Updated: 04 May 2022; Ref: scu.442755

The Parlement Belge: AdCt 1879

Proceedings in rem were served on a mail packet owned by Belgium which had been involved in a collision.

Judges:

Sir Robert Phillimore

Citations:

(1879) 4 PD 129

Jurisdiction:

England and Wales

Cited by:

Appeal from – The Parlement Belge CA 1879
An action in rem indirectly impleaded a sovereign who was the owner of the vessel served because his property was affected by the judgment of the court. An unincorporated treaty cannot change the law of the land and, ‘the immunity of the sovereign . .
Lists of cited by and citing cases may be incomplete.

International

Updated: 04 May 2022; Ref: scu.441559

Hutchinson v Proxmire: 26 Jun 1979

(United States Supreme Court) The petitioner had been funded by the state to carry out research on aggression in certain animals, particularly monkeys. He complained of criticism of his work decsribing it as wasteful.
Held: Efforts to influence executive agencies are not privileged acts. Not every public employee is a public official.

Citations:

[1979] USSC 139, [1979] 443 US 111

Links:

Worldlii

Cited by:

Cited – Chaytor and Others, Regina v SC 1-Dec-2010
The defendants faced trial on charges of false accounting in connection in different ways with their expenses claims whilst serving as members of the House of Commons. They appealed against rejection of their assertion that the court had no . .
Cited – Makudi v Baron Triesman of Tottenham CA 26-Feb-2014
Appeal against strike out of claims for defamation and malicious falsehood. The defendant had given evidence to the Culture Media and Sport Select Committee of the House of Commons with material highly critical of the claimant, a member of FIFA’s . .
Lists of cited by and citing cases may be incomplete.

International, Constitutional, Defamation

Updated: 02 May 2022; Ref: scu.427748

Torok v Torok: 1973

Ormrod J agreed to an application to accelerate the decree absolute of divorce to preserve the court’s jurisdiction to hear a claim for ancillary relief. If a divorce were obtained in Hungary on the basis of the husband’s Hungarian nationality, it would have to be recognised, and the English court would have no jurisdiction under the Matrimonial Proceedings and Property Act 1970 to deal with the house in England where the wife and children were living, even though the Hungarian court was unlikely to award maintenance.

Judges:

Ormrod J

Citations:

[1973] 1 WLR 1066

Cited by:

Cited – Agbaje v Akinnoye-Agbaje SC 10-Mar-2010
The parties had divorced in Nigeria, but the former wife now sought relief in the UK under section 10 of the 194 Act. The wife said that she lived here, but the order made in Nigeria was severely detrimental requiring her either to live here in . .
Lists of cited by and citing cases may be incomplete.

Family, International

Updated: 02 May 2022; Ref: scu.406668

Underwager v Salter: 1994

(United States Court of Appeals, Seventh Circuit) Judge Easterbrook spoke of a defamation claim in a scientific dispute: ‘[Plaintiffs] cannot, by simply filing suit and crying ‘character assassination!’, silence those who hold divergent views, no matter how adverse those views may be to plaintiffs’ interests. Scientific controversies must be settled by the methods of science rather than by the methods of litigation. . More papers, more discussion, better data, and more satisfactory models – not larger awards of damages – mark the path towards superior understanding of the world around us.’

Judges:

Judge Easterbrook

Citations:

22 Fed 3d 730 (1994), [1994] USCA7 471, 22 Media L Rep 1852

Links:

Worldlii

Cited by:

Cited – British Chiropractic Association v Dr Simon Singh CA 1-Apr-2010
The defendant appealed against a ruling that the words in an article – ‘This organisation is the respectable face of the chiropractic profession and yet it happily promotes bogus treatments’ – were statements of fact, and were not comment.
Lists of cited by and citing cases may be incomplete.

International, Defamation

Updated: 02 May 2022; Ref: scu.406674

RS v KS (Abduction: Wrongful Retention): FD 26 Jun 2009

In considering an international abduction of a four year old child by a parent Macur J said that disruption to the living arrangements of such a young child ‘would have more far reaching consequences and adverse impact than in the case of an older and less sensitive child able to comprehend a sudden departure from one routine and community and the prospect of the next.’

Judges:

Macur J

Citations:

[2009] EWHC 1494 (Fam), [2009] 2 FLR 1231

Links:

Bailii

Statutes:

Hague Convention on the Civil Aspects of International Child Abduction 1980

Jurisdiction:

England and Wales

Cited by:

Cited – In re O (Children) CA 16-Feb-2011
The family had Nigerian nationality, but the father also had US nationality. After the split, M wanted to live with the children in Nigeria, and F wanted them with him in the US. On M’s visit to the UK from Nigeria with the children, the father . .
Lists of cited by and citing cases may be incomplete.

Children, International

Updated: 02 May 2022; Ref: scu.377901

Brook v Brook: 17 Apr 1858

The law of the country in which a marriage is solemnised cannot give validity to a marriage prohibited by the laws of the country of the domicile and allegiance of the contracting parties.
Therefore, a marriage celebrated during a temporary residence in Denmark between an English widower and the sister of his deceased wife, being null and void by the stat. 5 and 6 Wtn. 4, is not valid, although by the law of Denmark marriages are permitted between persons so related by affinity.
The principle of lex loci contractus examined as to various qualifications and exceptions,

Citations:

[1858] EngR 545, (1857-1858) 3 Sm and G 481, (1858) 65 ER 746

Links:

Commonlii

Jurisdiction:

England and Wales

Family, International

Updated: 02 May 2022; Ref: scu.289016

Henry Wulff Trigge And Alfred Trigge v Flavien Lavallee: PC 5 Dec 1862

By the old French law, in force in Lower Canada, a ”Transaction’, like an English compromise, is an agreement to put an end to disputes, and terminate or avoid litigation : and in such case the consideration which each party receives, is not the sacrifice of a right, but the abandonment of a claim. The French law in this case has adopted the definition of the Civil law [15 Moo. P.C. 2p2].

Citations:

[1862] EngR 1147, (1862) 15 Moo PC 270, (1862) 15 ER 497

Links:

Commonlii

International, Contract

Updated: 02 May 2022; Ref: scu.287313

Zeran v America Online: 1997

(United States of America) Wilkinson CJ discussed the statutory protection given to Internet Service providers in the US: ‘Section 230 creates a federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service. Specifically, Section 230 precludes courts from entertaining claims that would place a computer service provider in a publisher’s role. Thus, lawsuits seeking to hold a service providers liable for its exercise of a publisher’s traditional editorial functions — such as deciding whether to publish, withdraw, postpone or alter content — are barred’ and ‘None of this means, of course, that the original culpable party who posts defamatory messages would escape accountability. While Congress acted to keep government regulation of the Internet to a minimum, it also found it to be the policy of the United States ‘to ensure vigorous enforcement of Federal criminal laws to deter and punish trafficking in obscenity, stalking, and harassment by means of computer’. Congress made a policy choice, however, not to deter harmful on-line speech through the separate route of imposing tort liability on companies that serve as intermediaries for other parties’ potentially injurious messages’

Judges:

Wilkinson CJ

Citations:

[1997] 129 F3d 327

Jurisdiction:

United States

Cited by:

Cited – Bunt v Tilley and others QBD 10-Mar-2006
The claimant sought damages in defamation in respect of statements made on internet bulletin boards. He pursued the operators of the bulletin boards, and the court now considered the liability of the Internet Service Providers whose systems had . .
Cited – Godfrey v Demon Internet Limited QBD 26-Mar-1999
An Internet Service Provider who was re-distributing Usenet postings it had received, to its users in general, remained a publisher at common law, even though he was not such within the definitions of the Act, and it was therefore liable in . .
Lists of cited by and citing cases may be incomplete.

International, Defamation

Updated: 02 May 2022; Ref: scu.277105

Cubby Inc v CompuServe Inc: 1991

(United States) Leisure DJ said: ‘CompuServe develops and provides computer-related products and services, including CompuServe Information Service (‘CIS’), an on-line general information service or ‘electronic library’ that subscribers may access from a personal computer or terminal. Subscribers to CIS pay a membership fee and on-line time usage fees, in return for which they have access to the thousands of information sources available on CIS. Subscribers may also obtain access to over 150 special interest ‘forums’ which are comprised of electronic bulletin boards, interactive on-line conferences, and topical databases.
One forum available is the Journalism Forum, which focuses on the journalism industry. Cameron Communications, Inc. (‘CCI’), which is independent of CompuServe, has contracted to ‘manage, review, create, delete, edit and otherwise control the contents’ of the Journalism Forum ‘in accordance with editorial and technical standards and conventions of style as established by CompuServe’

Judges:

Leisure DJ

Citations:

(1991) 776 FS Supp 135

Jurisdiction:

England and Wales

Cited by:

Cited – Godfrey v Demon Internet Limited QBD 26-Mar-1999
An Internet Service Provider who was re-distributing Usenet postings it had received, to its users in general, remained a publisher at common law, even though he was not such within the definitions of the Act, and it was therefore liable in . .
Cited – Bunt v Tilley and others QBD 10-Mar-2006
The claimant sought damages in defamation in respect of statements made on internet bulletin boards. He pursued the operators of the bulletin boards, and the court now considered the liability of the Internet Service Providers whose systems had . .
Cited – Stratton Oakmont Inc v Prodigy Services Co 1995
(New York) The defendant computer network company held itself out as having editorial control over notes posted on its bulletin board, imposed content guidelines on its users by prescreening notes for offensive language, and permitted board leaders . .
Lists of cited by and citing cases may be incomplete.

International, Media

Updated: 02 May 2022; Ref: scu.277103

O’Kelly v Harvey: 1882

(Court of Appeal in Ireland) The plaintiff, a nationalist Member of Parliament, sued the defendant for assault and battery. There had been a meeting which was to be held on 7 December 1880. On the day before, a placard appeared summoning local Orangemen to assemble to oppose the meeting. The defendant, who was a justice of the peace for the district, was present at the meeting. He knew of the placard and believed on reasonable and probable grounds that the only way of preventing a breach of the peace when the Orangemen arrived was to order the meeting to separate and disperse. The defendant asked the plaintiff and the other persons who were assembled to disperse and, when they failed to do so, he laid his hand on the plaintiff in order to disperse the meeting.
Held: On a demurrer, if made out, these averments would constitute a sufficient defence to the action for assault and battery. Where it is necessary in order to prevent a breach of the peace, at common law police officers can take action which affects people who are not themselves going to be actively involved in the breach.
Law C said: ‘The question then seems to be reduced to this: assuming the plaintiff and others assembled with him to be doing nothing unlawful, but yet that there were reasonable grounds for the defendant believing, as he did, that there would be a breach of the peace if they continued so assembled, and that there was no other way in which the breach of the peace could be avoided but by stopping and dispersing the plaintiff’s meeting – was the defendant justified in taking the necessary steps to stop and disperse it? In my opinion he was so justified, under the peculiar circumstances stated in the defence, and which for the present must be taken as admitted to be there truly stated. Under such circumstances the defendant was not to defer action until a breach of the peace had actually been committed. His paramount duty was to preserve the peace unbroken, and that, by whatever means were available for the purpose. Furthermore, the duty of a justice of the peace being to preserve the peace unbroken he is, of course, entitled and in part bound, to intervene the moment he has reasonable apprehensions of a breach of the peace being imminent; and therefore, he must in such cases necessarily act on his own reasonable and bona fide belief, as to what is likely to occur. Accordingly in the present case, even assuming that the danger to the public peace arose altogether from the threatened attack of another body on the plaintiff and his friends, still if the defendant believed and had just grounds for believing that the peace could only be preserved by withdrawing the plaintiff and his friends from the attack with which they were threatened, it was, I think, the duty of the defendant to take that course.’

Judges:

Palles CB, Law C

Citations:

(1882) 10 LR Ir 287

Cited by:

Cited – Laporte, Regina (on the application of ) v Chief Constable of Gloucestershire HL 13-Dec-2006
The claimants had been in coaches being driven to take part in a demonstration at an air base. The defendant police officers stopped the coaches en route, and, without allowing any number of the claimants to get off, returned the coaches to London. . .
Cited – Austin and Another v Commissioner of Police of the Metropolis CA 15-Oct-2007
The claimants appealed dismissal of their claims for false imprisonment and unlawful detention by the respondent in his policing of a demonstration. They had been held within a police cordon in the streets for several hours to prevent the spread of . .
Lists of cited by and citing cases may be incomplete.

Police, International

Updated: 01 May 2022; Ref: scu.247478

King of the Hellenes v Brostrom: 1923

Rowlatt J said: ‘It is perfectly elementary that a foreign government cannot come here — nor will the courts of other countries allow our government to go there — and sue a person found in that jurisdiction for taxes levied and which he is declared to be liable to by the country to which he belongs.’

Judges:

Rowlatt J

Citations:

(1923) 16 LlLRep 190

Cited by:

Cited – Mbasogo, President of the State of Equatorial Guinea and Another v Logo Ltd and others CA 23-Oct-2006
Foreign Public Law Not Enforceable Here
The claimant alleged a conspiracy by the defendants for his overthrow by means of a private coup d’etat. The defendants denied that the court had jurisdiction. The claimants appealed dismissal of their claim to damages.
Held: The claims were . .
Cited – Government of India v Taylor HL 1955
The Government of India sought to prove in the voluntary liquidation of a company registered in the United Kingdom but trading in India for a sum due in respect of Indian income tax, including capital gains tax, which arose on the sale of the . .
Lists of cited by and citing cases may be incomplete.

International, Taxes Management

Updated: 01 May 2022; Ref: scu.245575

Attorney-General of New Zealand v Ortiz: HL 3 Jan 1983

The Attorney General had sought the return of a valuable Maori carving which had been illegally exported from New Zealand and was to be sold by the defendant. He appealed against a finding that the provision (s12 Historical Articles Act 1962 of New Zealand) was a foreign penal one and as such was unenforceable in England.
Held: The appeal failed. The Act contained no provision to forfeit illegally exported articles automatically. There had been no act of seizure and therefore the Crown had no title to the carving.
Denning MR discussed the rule that a court of one jurisdiction will not enforce the penal laws of another jurisdiction: ‘No one has ever doubted that our courts will not entertain a suit brought by a foreign sovereign, directly or indirectly, to enforce the penal or revenue laws of that foreign state. We do not sit to collect taxes for another country or to inflict punishments for it.’

Citations:

[1984] AC 1, [1983] 2 All ER 93, [1983] 2 WLR 809

Jurisdiction:

England and Wales

Citing:

At First Instance – Attorney-General of New Zealand v Ortiz ChD 1984
The New Zealand government sought the return of a Maori carving which had been bought by the defendant after it had been illegally exported from New Zealand. The defendant replied that an English court should not itself enforce a foreign penal . .
Appeal from – Attorney-General of New Zealand v Ortiz CA 2-Jan-1982
The defendant was to sell a Maori carving which had been unlawfully exported from New Zealand. The Attorney General sought its recovery and an injunction to prevent its sale, relying on the Historical Articles Act 1962. The judge had ordered its . .

Cited by:

Cited – Mbasogo, President of the State of Equatorial Guinea and Another v Logo Ltd and others CA 23-Oct-2006
Foreign Public Law Not Enforceable Here
The claimant alleged a conspiracy by the defendants for his overthrow by means of a private coup d’etat. The defendants denied that the court had jurisdiction. The claimants appealed dismissal of their claim to damages.
Held: The claims were . .
Lists of cited by and citing cases may be incomplete.

International

Updated: 01 May 2022; Ref: scu.245566

Re O’Hara: 1900

(Ireland) FitzGibbon LJ SAID: ‘In exercising the jurisdiction to control or to ignore the parental right the court must act cautiously, not as if it were a private person acting with regard to his own child, and acting in opposition to the parent only when judicially satisfied that the welfare of the child requires that the parental right should be suspended or superseded.’

Judges:

FitzGibbon LJ

Citations:

[1900] 2 IR 232

Cited by:

Cited – J v C (An Infant) HL 19-Feb-1969
The House sought to construe the meaning of the words ‘shall regard the welfare of the infant as the first and paramount consideration’. Lord MacDermott said: ‘it seems to me that they must mean more than that the child’s welfare is to be treated as . .
Cited – In Re KD (A Minor) (Ward: Termination of Access) HL 1988
The local authority sought to terminate parental contact with a child taken into care under a wardship.
Held: The court had to consider the human rights of the parent as against the welfare interest of the child. Lord Oliver of Aylmerton said: . .
Cited – In Re G (A Minor) (Interim Care Order: Residential Assessment); G (Children), In Re (Residence: Same Sex Partner) HL 26-Jul-2006
The parties had been a lesbian couple each with children. Each now was in a new relationship. One registered the two daughters of the other at a school now local to her but without first consulting the birth mother, who then applied for residence . .
Lists of cited by and citing cases may be incomplete.

International, Children

Updated: 01 May 2022; Ref: scu.244484

Greenwood County v Duke Power: 1939

(United States) A ‘wrongful’ injunction granted at the behest of a power company had stopped the county from receiving or using Federal funds to build a rival power station. Upon reversal of the decision and dissolution of the injunction the county claimed for the profits made by the power company from the injunction and for its losses.
Held: Judge Parker: ‘The county’s principal contention is that it is entitled to have restitution of the profits which it has lost and the power company has gained as a result of the injunctive orders; but we see no basis upon which any such relief can be granted. Restitution is awarded upon the principle that a party against whom an erroneous judgment or decree has been carried into effect is entitled, upon reversal, to that which he has lost thereby [authorities cited]. It cannot be awarded here, because the county has lost nothing which the power company has received, as a result of the injunctive orders of the court. The income received by the latter was received from the sale of power which it produced and had a right to sell. It received nothing from the county and nothing to which the county would have been entitled, or which it would have received, had the injunctive orders not been entered [authorities cited] The most that can be said is that the suit and the injunctive orders issued therein damaged the county by delaying the construction of its project and that the power company’s business profited by being freed of competition as a result of the delay; but to grant recovery on this basis would be to award damages on account of the suit and injunctive orders, which as we have seen, cannot be done. The effect of the rule cannot be avoided by calling a claim for damages one for restitution.’

Judges:

Parker K

Citations:

(1939) 107 F(2d) 484

Cited by:

Cited – Smithkline Beecham Plc Glaxosmithkline UK Ltd and Another v Apotex Europe Ltd and others (No 2) CA 23-May-2006
The parties to the action had given cross undertakings to support the grant of an interim injunction. A third party subsequently applied to be joined, and now sought to take advantage of the cross undertakings to claim the losses incurred through . .
Lists of cited by and citing cases may be incomplete.

International, Litigation Practice, Equity

Updated: 01 May 2022; Ref: scu.242620

Government of the Republic of Spain v SS “Arantzazu Mendi”: HL 1939

The House considered the weight to be given to a certificate as to a statement by HM government as to the recognition of the defendant as a sovereign state: ‘Our State cannot speak with two voices on such a matter, the judiciary saying one thing, the executive another. Our Sovereign has to decide whom he will recognize as a fellow sovereign in the family of States; and the relations of the foreign State with ours in the matter of State Immunities must flow from that decision alone.’

Judges:

Lord Atkin

Citations:

[1939] AC 256

Cited by:

Cited – Alamieyeseigha, Regina (on the Application Of) v Crown Prosecution Service Admn 25-Nov-2005
The defendant argued that as Governor and Chief Excecutive of Bayelsa State in Nigeria he had sovereign immunity. The Foreign Office had issued a certificate that the defendant was not a Head of States under the 1978 Act. The A-G of Bayelsa had . .
Lists of cited by and citing cases may be incomplete.

International

Updated: 30 April 2022; Ref: scu.235350

Duff Development Company Limited v Government of Kelantan: HL 1924

In a case of any uncertainty as to the diplomatic status of a defendant, a Secretary of State should be asked for the necessary information. The House considered a certificate of recognition provided for the defendant: ‘It is the duty of the Court to accept the statement of the Secretary of state thus clearly and positively made as conclusive upon the point.’ (Lord Cave) (majority decision).

Judges:

Lord Cave

Citations:

[1924] AC 797

Cited by:

Cited – Alamieyeseigha, Regina (on the Application Of) v Crown Prosecution Service Admn 25-Nov-2005
The defendant argued that as Governor and Chief Excecutive of Bayelsa State in Nigeria he had sovereign immunity. The Foreign Office had issued a certificate that the defendant was not a Head of States under the 1978 Act. The A-G of Bayelsa had . .
Lists of cited by and citing cases may be incomplete.

International

Updated: 30 April 2022; Ref: scu.235349

Enron Corporation v The Argentine Republic: ICSID 14 Jan 2004

The Barcelona Traction case ‘has been held not to be controlling in investment claims such as the present, as it deals with the separate question of diplomatic protection in a particular setting’ and that: ‘what the State of nationality of the investor might argue in a given case to which it is a party cannot be held against the rights of the investor in a separate case to which the investor is party. This is precisely the merit of the ICSID Convention in that it overcame the deficiencies of diplomatic protection where the investor was subject to whatever political or legal determination the State of nationality would make in respect of its claim’.

Citations:

ARB/01/3

Links:

ICSID

Citing:

Cited – In re Barcelona Traction, Light and Power Co Ltd (Belgium v Spain) (second phase) ICJ 5-Feb-1970
ICJ The claim arose out of the adjudication in bankruptcy in Spain of Barcelona Traction, a company incorporated in Canada. Its object was to seek reparation for damage alleged by Belgium to have been sustained . .

Cited by:

Cited – Occidental Exploration and Production Company vRepublic of Ecuador CA 9-Sep-2005
The parties had arbitrated their dispute in London under a bilateral investment treaty between the US and Ecuador. The republic sought to appeal the arbitration. The applicant now appealed an order that the English High Court had jurisdiction to . .
Lists of cited by and citing cases may be incomplete.

International, Arbitration

Updated: 30 April 2022; Ref: scu.230254

Camuzzi International SA v Argentine Republic: ICSID 11 May 2005

Of the Barcelona Traction case:- ‘this decision of the International Court of Justice referred particularly to the protection that could be expected by the shareholders in this case, but specifying that they can enjoy other protection, if there is a specific agreement in this regard. In this case, this is precisely the situation. There is an applicable international juridical agreement. This agreement is the Treaty and according to it, Camuzzi has the right to request, directly and immediately, the protection of its rights by accessing the Tribunal.’

Citations:

ARB/03/2

Links:

ICSID

Cited by:

Cited – Occidental Exploration and Production Company vRepublic of Ecuador CA 9-Sep-2005
The parties had arbitrated their dispute in London under a bilateral investment treaty between the US and Ecuador. The republic sought to appeal the arbitration. The applicant now appealed an order that the English High Court had jurisdiction to . .
Lists of cited by and citing cases may be incomplete.

International, Arbitration

Updated: 30 April 2022; Ref: scu.230256

Gur Corporation v Trust Bank of Africa: 1987

Governmental acts of an unrecognised state cannot be recognised by an English court but ‘Common sense and justice may combine to require the qualification of these principles in certain respects.’ Discussing the Carl Zeiss case: ‘Carl Zeiss was decided on the basis of the application of principles of agency: on the materials before the House of Lords the relevant acts were categorised as those of the U.S.S.R. rather than the G.D.R. This route was open to their Lordships because there was an executive certificate, which expressly stated: ‘up to the present date Her Majesty’s Government have recognised the State and Government of the Union of Soviet Socialist Republics as de jure entitled to exercise governing authority in respect of that zone [the G.D.R.].’

Judges:

Steyn J

Citations:

[1987] 1 QB 599

Citing:

Cited – Carl Zeiss Stiftung v Rayner and Keeler Ltd (No 2) HL 1966
An agency had to be proved in a search to identify an entity which the law recognised (a) existed and (b) was legally responsible for the acts in issue in the proceedings. The House was asked whether the fact that an issue had already been . .

Cited by:

Cited – North Cyprus Tourism Centre Ltd and Another, Regina (on the Application Of) v Transport for London Admn 28-Jul-2005
The defendants had prevented the claimants from advertising their services in North Cyprus on their buses, and justified this saying that the Crown did not recognise the Turkish Republic of North Cyprus since it was the result of an unlawful . .
Lists of cited by and citing cases may be incomplete.

International

Updated: 30 April 2022; Ref: scu.230016

The Colombian-Peruvian Asylum case: ICJ 20 Nov 1950

ICJ The origin of the Colombian-Peruvian Asylum case lies in the asylum granted on January 3rd, 1949, by the Colombian Ambassador in Lima to M. Victor Raul Haya de la Torre, head of a political party in Peru, the American People’s Revolutionary Alliance. On October 3rd, 1948, a military rebellion broke out in Peru and proceedings were instituted against Haya de la Torre for the instigation and direction of that rebellion. He was sought out by the Peruvian authorities, but without success, and after asylum had been granted to the refugee, the Colombian Ambassador in Lima requested a safe-conduct to enable Haya de la Torre, whom he qualified as a political offender, to leave the country. The Government of Peru refused, claiming that Haya de la Torre had committed common crimes and was not entitled to enjoy the benefits of asylum. Being unable to reach an agreement, the two Governments submitted to the Court certain questions concerning their dispute; these questions were set out in an Application submitted by Colombia and in a Counter-Claim submitted by Peru.
In its Judgment, the Court, by fourteen votes to two, declared that Colombia was not entitled to qualify unilaterally and in a manner binding upon Peru the nature of the offence; by fifteen votes to one, it declared that the Government of Peru was not bound to deliver a safe-conduct to the refugee. On the other hand, the Court rejected by fifteen votes to one the Peruvian contention that Haya de la Torre was accused of common crimes; the Court noted that the only count against Haya de la Torre was that of military rebellion and military rebellion was not, in itself, a common crime. Lastly, by ten votes to six, the Court, without criticising the attitude of the Colombian Ambassador in Lima, considered that the requirements for asylum to be granted in conformity with the relevant treaties were not fulfilled at the time when he received Haya de la Torre. Indeed, according to the interpretation which the Court put upon the Convention of Havana, asylum could not be an obstacle to proceedings instituted by legal authorities operating in accordance with the law.

Links:

ICJ

Cited by:

See Also – Request For Interpretation Of The Judgment Of 20 November 1950 In The Asylum Case ICJ 27-Nov-1950
. .
Lists of cited by and citing cases may be incomplete.

International

Updated: 30 April 2022; Ref: scu.228070

The Corfu Channel Case: ICJ 22 May 1947

Assessment of the amount of compensation due from the people’s Republic of Albania to the United Kingdom of Great Britain and Northern Ireland.
The court should be reluctant to conclude that a provision in an agreement made between two governments was otiose, if that conclusion could reasonably be avoided.

Citations:

[1949] ICJ 1

Links:

ICJ, ICJ

Jurisdiction:

England and Wales

Cited by:

Cited – Anson v Revenue and Customs SC 1-Jul-2015
Interpretation of Double Taxation Agreements
This appeal is concerned with the interpretation and application of a double taxation agreement between the United Kingdom and the United States of America. A had been a member of an LLP in Delaware, and he was resident within the UK, but not . .
Lists of cited by and citing cases may be incomplete.

International

Updated: 30 April 2022; Ref: scu.228068

Regina v Madan: CCA 1961

The defendant, a clerk on the staff of the High Commissioner for India, was entitled to diplomatic immunity. He purported to waive his immunity when charged with attempting to obtain a sum of money by false pretences. He was convicted at the County of London Sessions.
Held: The conviction was quashed. There had been no valid waiver of diplomatic immunity and the proceedings had been without jurisdiction and were a nullity. ‘Certain things are, we think, clear. In the first place, it is not for someone who is entitled to diplomatic immunity to claim it . in the courts. It is unnecessary to refer to the authorities, but we think it is clear that proceedings brought against somebody, certainly civil proceedings brought against somebody entitled to diplomatic immunity, are, in fact, proceedings without jurisdiction and null and void, unless and until there is a valid waiver which, as it were, would bring the proceedings to life and give jurisdiction to the court. Moreover, it is clear that that waiver must be a waiver by a person with full knowledge of his rights, and a waiver by or on behalf of the chief representative of the State in question. In other words, it is not the. person entitled to a privilege who may waive it, unless, of course, he does so as agent for or on behalf of the representative of the country concerned; it must be the waiver of the representative of the State.

Judges:

Lord Parker CJ

Citations:

[1961] QB 1

Statutes:

Diplomatic Immunity (Commonwealth Countries & Republic of Ireland) Act 1952

Cited by:

Cited – Aziz v Republic of Yemen CA 17-Jun-2005
The claimant had made a claim for unfair dismissal. The defendant state had filed a defence instead of claiming state immunity. It then sought to assert such immunity. The claimant said the state had waived its immunity.
Held: Section 2(7) of . .
Cited – Augusto Pinochet Ugarte and In the Matter of an Application for Leave To Move for Judicial Review Regina v Evans (Metropolitan Stipendiary Magistrate) Admn 28-Oct-1998
A provisional warrant had been issued by a magistrate for the arrest of the former president of Chile when visting London. The arrest had been in response to an extradition request from a judge in Spain and related to allegations of criminal acts by . .
Lists of cited by and citing cases may be incomplete.

Crime, international

Updated: 30 April 2022; Ref: scu.227919

Peter Buchanan Limited and Macharg v McVey: 1954

(Supreme Court of Ireland) The plaintiff was a company registered in Scotland put into compulsory liquidation by the revenue under a substantial claim for excess profits tax and income tax. The liquidator was really a nominee of the revenue. The defendant director had realised all the company’s assets and having paid all the debts save the revenue, had the balance transferred to himself to his credit with an Irish bank. He moved to Ireland. The action appeared to seek to recover the balance from the defendant at the instance of the company directed by the liquidator.
Held: The director’s actions were dishonestly intended to defeat the claim of the revenue in Scotland as a creditor. However though the action was in form an action by the company to recover these assets, it was found ‘For the purpose of this case it is sufficient to say that when it appears to the court that the whole object of the suit is to collect tax for a foreign revenue, and that this will be the sole result of a decision in favour of the plaintiff, then a court is entitled to reject the claim by refusing jurisdiction’ and as an attempt to enforce indirectly a claim to tax by the revenue authorities of another State, the action was dismissed.

Judges:

Kingsmill Moore J

Citations:

[1955] AC 516, [1954] IR 89

Jurisdiction:

England and Wales

Cited by:

Approved – Government of India v Taylor HL 1955
The Government of India sought to prove in the voluntary liquidation of a company registered in the United Kingdom but trading in India for a sum due in respect of Indian income tax, including capital gains tax, which arose on the sale of the . .
Approved – In re State of Norway’s application (Nos 1 and 2) HL 1989
The House considered an application by a foreign state seeking assistance in obtaining evidence here to be used in enforcing its own revenue laws at home.
Held: Rule 3 of the Convention encapsulated a ‘fundamental rule of English Law’, but did . .
Followed – QRS 1 APS and others v Frandsen CA 21-May-1999
The appellants were all Danish companies put into liquidation for asset stripping in contravention of Danish law. The respondent was resident in the UK and had owned them. The Danish tax authorities issued tax demands and the liquidators now sought . .
Cited – Williams and Humbert Ltd v W and H Trade Marks (Jersey) Ltd HL 1986
There had been an expropriation by Spanish decrees of shares in a Spanish company whose English subsidiary had rights in trade marks which it had sold to a Jersey company. The Spanish and English companies sought certain relief in relation to the . .
Cited – Holland v Lampen-Wolfe HL 20-Jul-2000
The US established a base at Menwith Hill in Yorkshire, and provided educational services through its staff to staff families. The claimant a teacher employed at the base alleged that a report on her was defamatory. The defendant relied on state . .
Cited – Hill (As Trustee In Bankruptcy of Nurkowski) v Spread Trustee Company Ltd and Another CA 12-May-2006
The defendants sought relief for transactions entered into at an undervalue. The bankrupt had entered into charges and an assignment of a loan account in their favour before his bankruptcy, and the trustee had obtained an order for them to be set . .
Cited – Mbasogo, President of the State of Equatorial Guinea and Another v Logo Ltd and others CA 23-Oct-2006
Foreign Public Law Not Enforceable Here
The claimant alleged a conspiracy by the defendants for his overthrow by means of a private coup d’etat. The defendants denied that the court had jurisdiction. The claimants appealed dismissal of their claim to damages.
Held: The claims were . .
Lists of cited by and citing cases may be incomplete.

International, Taxes Management

Updated: 30 April 2022; Ref: scu.225455

El Fadl v El Fadl: FD 2000

The court was asked as to the recognition of a Sharia compliant divorce between Lebanese Muslims. Under the relevant Lebanese 1962 legislation a Talaq was to be pronounced before 2 witnesses, a requirement of most systems of traditional Islamic Local Authority. The 1962 Act then imposed registration before a Sharia Court. Next, follows compulsory registration of the fact of the Talaq and registration in the civil register.
Held: The clear cut dichotomy between a bare Talaq and another single form of Talaq does not necessarily exist (in the jurisdiction in which it may have been obtained) so that the law of the country in question and the particular process undertaken must be examined from case to case to answer what is a question of English law.
The consent or objection of the wife to the divorce was irrelevant. It was not necessary for her to have notice of the pronounced in order to give effect to the talaq, which had been recorded in the Sharia court in accordance with Lebanese law. That registration was sufficient for the talaq properly to be described as proceedings within s.46. Furthermore, it was not a proper exercise of discretion to refuse a divorce which was valid by the personal law of both parties at the relevant time, as had been known to them for many years.
Hughes J said: ‘Thus what the law of the Lebanon requires on the evidence before is, first, a pronouncement of the words of the Talaq before two witnesses and, secondly, registration before the Sharia court . . accordingly, the role of the court is in this case an essential part of the process, even though it has no power of decision whether there is to be a divorce or not and is limited to recording what has previously taken place. I do not think that (one of the expert’s) description of the court’s function as a mere formality does justice to it.’

Judges:

Hughes J

Citations:

[2000] 1 FLR 175

Statutes:

Family Law Act 1986 46(1)

Jurisdiction:

England and Wales

Cited by:

Cited – Duhur-Johnson v Duhur-Johnson FD 3-May-2005
The husband sought to stay divorce proceedings commenced here by his wife, saying that they had already been divorced in Nigeria. The wife said the Nigerian proceedings should not be recognised in English law.
Held: The cases established: 1) . .
Cited – Sulaiman v Juffali FD 9-Nov-2001
A talaq pronounced in England as between parties who were Saudi nationals was not to be recognised in English law as a valid extra judicial overseas divorce, even though it otherwise complied with Sharia law. Section 44(1)(a) provides that no . .
Cited – H v S FD 18-Nov-2011
The court was asked whether for the purposes of English divorce and connected proceedings a Talaq pronounced by the respondent husband in Saudi Arabia and placed by Deed of Confirmation before the Sharia Court is entitled to be afforded recognition . .
Cited – H v H FD 12-Dec-2007
The parties disputed the effect of a talaq divorce granted to H in Pakistan. W disputed that notice of the divorce had been served upon her. The notice was not now available.
Held: H’s evidence was credible. . .
Lists of cited by and citing cases may be incomplete.

Family, International

Updated: 30 April 2022; Ref: scu.224978

Massachusetts Board of Retirement v Murgia: 1976

(United States of America) It can be necessary to distinguish between those grounds of discrimination which prima facie appear to offend our notions of the respect due to the individual and those which merely require some rational justification.

Citations:

(1976) 438 US 285

Cited by:

Cited – Carson, Regina (on the Application of) v Secretary of State for Work and Pensions; Reynolds v Same HL 26-May-2005
One claimant said that as a foreign resident pensioner, she had been excluded from the annual uprating of state retirement pension, and that this was an infringement of her human rights. Another complained at the lower levels of job-seeker’s . .
Lists of cited by and citing cases may be incomplete.

International, Discrimination

Updated: 30 April 2022; Ref: scu.225371

Addington v Texas: 30 Apr 1979

(US Supreme Court) To commit an individual to a mental institution in civil proceedings, the state was required by the ‘due process’ clause of the US Constitution to prove by clear and convincing evidence the statutory preconditions to commitment. That was an intermediate standard, between proof beyond reasonable doubt and proof on the preponderance of the evidence, which was held to strike a fair balance between the rights of the individual and the legitimate concerns of the state.

Judges:

Burger CJ

Citations:

60 L Ed 2d 323, 60 L Ed 323, 99 SCt 1804, 441 US 418

Links:

Worldlii

Cited by:

Not applicable – Regina (DJ) v Mental Health Review Tribunal; Regina (AN) v Mental Health Review Tribunal (Northern Region) Admn 11-Apr-2005
Each applicant sought judicial review of the refusal of the tribunal to authorise their release from detention under the 1983 Act, saying that the Tribunal had accepted evidence to a lower standard of proof.
Held: Neither the criminal standard . .
Cited – AN, Regina (on the Application of) v Mental Health Review Tribunal (Northern Region) and others CA 21-Dec-2005
The appellant was detained under section 37 of the 1983 Act as a mental patient with a restriction under section 41. He sought his release.
Held: The standard of proof in such applications remained the balance of probabilities, but that . .
Lists of cited by and citing cases may be incomplete.

Health, International

Updated: 30 April 2022; Ref: scu.224295

Voss v APL Co Pte Limited: 2002

(Court of Appeal of Singapore) The court asked whether a straight bill had to be produced by the consignee to obtain delivery.
Held: It had. The main characteristics of a bill of lading were its negotiability and its recognition as a document of title, requiring presentation to obtain delivery of the cargo. While a straight bill lacked the first of these characteristics, there was no reason to infer that the parties intended to do away with the other also. This conclusion was supported by considerations of commercial efficacy and convenience.

Citations:

[2002] 2 Lloyd’s Rep 707

Cited by:

Cited – J I MacWilliam Company Inc v Mediterranean Shipping Company SA; The ‘Rafaela S’ HL 16-Feb-2005
A US company bought a printing machine and ancillary equipment on CIF terms from an English company. The sellers consigned the goods to the buyers. The carriers were a container liner operator and the demise charterers of the vessels ‘Rosemary’ and . .
Lists of cited by and citing cases may be incomplete.

International, Transport

Updated: 30 April 2022; Ref: scu.222776

Border and Transborder Armed Actions (Nicaragua v Honduras) (1986-1992): ICJ 1988

The court referred to its description of the place of an obligation of a country acting in good faith in the Nuclear Tests case, adding about the basic principle, that good faith ‘is not in itself a source of obligation where none would otherwise exist.’

Citations:

[1988] ICJ Rep 69

Jurisdiction:

England and Wales

Citing:

Cited – Nuclear Tests Case (Australia v France) ICJ 20-Dec-1974
In its judgment in the case concerning Nuclear Tests (Australia v. France), the Court, by 9 votes to 6, has found that the claim of Australia no longer had any object and that the Court was therefore not called upon to give a decision thereon. In . .

Cited by:

Cited – Regina v Immigration Officer at Prague Airport and another, ex parte European Roma Rights Centre and others HL 9-Dec-2004
Extension oh Human Rights Beyond Borders
The appellants complained that the system set up by the respondent where Home Office officers were placed in Prague airport to pre-vet applicants for asylum from Romania were dsicriminatory in that substantially more gypsies were refused entry than . .
Lists of cited by and citing cases may be incomplete.

International

Updated: 30 April 2022; Ref: scu.220678

In re Barcelona Traction, Light and Power Co Ltd (Belgium v Spain) (second phase): ICJ 5 Feb 1970

ICJ The claim arose out of the adjudication in bankruptcy in Spain of Barcelona Traction, a company incorporated in Canada. Its object was to seek reparation for damage alleged by Belgium to have been sustained by Belgian nationals, shareholders in the company, as a result of acts said to be contrary to international law committed towards the company by organs of the Spanish State. The Court found that Belgium lacked jus standi to exercise diplomatic protection of shareholders in a Canadian company with respect to measures taken against that company in Spain. However, it derived from municipal law a limited principle permitting the piercing of the corporate veil in cases of misuse, fraud, malfeasance or evasion of legal obligations.
It is up to the protecting State of the injured national whether and how far to make it available: ‘The Court would here observe that, within the limits prescribed by international law, a State may exercise diplomatic protection by whatever means and to whatever extent it thinks fit, for it is its own right that the State is asserting Should the natural or legal person on whose behalf it is acting consider that their rights are not adequately protected, they have no remedy in international law. All they can do is resort to national law, if means are available, with a view to furthering their cause or obtaining redress. The municipal legislator may lay upon the State an obligation to protect its citizens abroad, and may also confer upon the national a right to demand the performance of that obligation, and clothe the right with corresponding sanctions. However, all these questions remain within the province of municipal law and do not affect the position internationally. . .
The State must be viewed as the sole judge to decide whether its protection will be granted, to what extent it is granted, and when it will cease. It retains in this respect a discretionary power the exercise of which may be determined by considerations of a political or other nature, unrelated to the particular claim.’

Citations:

[1970] ICJ Rep 3

Links:

ICJ

Cited by:

Cited – Regina v Immigration Officer at Prague Airport and another, ex parte European Roma Rights Centre and others HL 9-Dec-2004
Extension oh Human Rights Beyond Borders
The appellants complained that the system set up by the respondent where Home Office officers were placed in Prague airport to pre-vet applicants for asylum from Romania were dsicriminatory in that substantially more gypsies were refused entry than . .
Cited – Enron Corporation v The Argentine Republic ICSID 14-Jan-2004
The Barcelona Traction case ‘has been held not to be controlling in investment claims such as the present, as it deals with the separate question of diplomatic protection in a particular setting’ and that: ‘what the State of nationality of the . .
Cited – Occidental Exploration and Production Company vRepublic of Ecuador CA 9-Sep-2005
The parties had arbitrated their dispute in London under a bilateral investment treaty between the US and Ecuador. The republic sought to appeal the arbitration. The applicant now appealed an order that the English High Court had jurisdiction to . .
Cited – Camuzzi International SA v The Argentine Republic (No 2) ICSID 11-May-2005
(Spanish Text) Diplomatic protection ‘cannot be considered the general rule in the system of international law presently governing the matter, but as a residual mechanism available when the affected individual has no direct channel in its own . .
Cited – Regina (on the application of Abassi and Another) v Secretary of State for Foreign and Commonwealth Affairs and Another CA 6-Nov-2002
A British national had been captured in Afghanistan, and was being held without remedy by US forces. His family sought an order requiring the respondent to take greater steps to secure his release or provide other assistance.
Held: Such an . .
Cited – Prest v Petrodel Resources Ltd and Others SC 12-Jun-2013
In the course of ancillary relief proceedings in a divorce, questions arose regarding company assets owned by the husband. The court was asked as to the power of the court to order the transfer of assets owned entirely in the company’s names. The . .
Lists of cited by and citing cases may be incomplete.

International, Company

Updated: 30 April 2022; Ref: scu.220676

Nuclear Tests Case (Australia v France): ICJ 20 Dec 1974

In its judgment in the case concerning Nuclear Tests (Australia v. France), the Court, by 9 votes to 6, has found that the claim of Australia no longer had any object and that the Court was therefore not called upon to give a decision thereon. In the reasoning of its Judgment, the Court adduces inter alia the following considerations: Even before turning to the questions of jurisdiction and admissibility, the Court has first to consider the essentially preliminary question as to whether a dispute exists and to analyse the claim submitted to it (paras. 22-24 of Judgment); the proceedings instituted before the Court on 9 May 1973 concerned the legality of atmospheric nuclear tests conducted by France in the South Pacific (para. 16 of Judgment); the original and ultimate objective of Australia is to obtain a termination of those tests (paras. 25-31 of Judgment); France, by various public statements made in 1974, has announced its intention, following the completion of the 1974 series of atmospheric tests, to cease the conduct of such tests (paras. 33-44 of Judgment); the Court finds that the objective of Australia has in effect been accomplished, inasmuch as France has undertaken the obligation to hold no further nuclear tests in the atmosphere in the South Pacific (paras. 47-52 of Judgment); the dispute having thus disappeared, the claim no longer has any object and there is nothing on which to give judgment (paras. 55-59 of Judgment).
Good faith is one of the basic principles governing the creation and performance of legal obligations, whatever their source.

Citations:

[1974] ICJ Rep 253

Links:

ICJ

Cited by:

Cited – Border and Transborder Armed Actions (Nicaragua v Honduras) (1986-1992) ICJ 1988
The court referred to its description of the place of an obligation of a country acting in good faith in the Nuclear Tests case, adding about the basic principle, that good faith ‘is not in itself a source of obligation where none would otherwise . .
Cited – Regina v Immigration Officer at Prague Airport and another, ex parte European Roma Rights Centre and others HL 9-Dec-2004
Extension oh Human Rights Beyond Borders
The appellants complained that the system set up by the respondent where Home Office officers were placed in Prague airport to pre-vet applicants for asylum from Romania were dsicriminatory in that substantially more gypsies were refused entry than . .
Lists of cited by and citing cases may be incomplete.

International

Updated: 30 April 2022; Ref: scu.220677

Herbage v Meese: 1990

(US) A claim was brought against British police officers and prosecuting counsel for knowingly and falsely stating, in the context of extradition proceedings against the claimant, that the United States had made a valid ‘provisional request’ for his extradition.
Held: The Foreign Sovereign Immunities Act of 1976 does not discuss the liability or role of natural persons, whether governmental officials or private persons’, the sovereign immunity which it grants was held to extend to such persons: ‘This is a logical approach, for a government does not act but through its agents’. ‘The standard for determining whether immunity is warranted does not depend on the identity of the person or entity so much as the nature of the act for which the person or entity is claiming immunity’. Since the activity complained of was governmental in nature and performed by officials of that government, the Court had no jurisdiction ‘over a foreign sovereign’ and that the FSIA was ‘absolute in this regard, no matter how heinous the alleged illegalities’.

Citations:

(1990) 747 F Supp 60

Jurisdiction:

England and Wales

Cited by:

Applied – Jaffe v Miller 1993
(Ontario Court of Appeal) Florida state officials were sued for alleged conspiracy maliciously to prosecute and to kidnap and detain the claimant, in order to blackmail him into giving up a civil suit.
Held: It is the character of the act, . .
Cited – Jones v Ministry of Interior Al-Mamlaka Al-Arabiya As Saudiya Kingdom of Saudi Arabia) and Another CA 28-Oct-2004
The claimants sought damages alleging torture by the respondent whilst held in custody in Saudi Arabia.
Held: Although the state enjoyed freedom from action, where the acts were ones of torture, and action could proceed against state officials . .
Lists of cited by and citing cases may be incomplete.

International

Updated: 30 April 2022; Ref: scu.219449

Rahimtoola v Nizam of Hyderabad: CA 1957

The court considered the doctrine of state immunity. Lord Denning MR said: ‘If the dispute brings into question, for instance, the legislative or international transactions of a foreign government, or the policy of its executive, the court should grant immunity if asked to do so, because it does offend the dignity of a foreign sovereign to have the merits of such a dispute canvassed in the domestic courts of another country: but, if the dispute concerns, for instance, the commercial transactions of a foreign government (whether carried on by its own departments or agencies or by setting up separate legal entities), and it arises properly within the territorial jurisdiction of our courts, there is no ground for granting immunity.’

Judges:

Lord Denning MR

Citations:

[1957] Ch 157

Jurisdiction:

England and Wales

Cited by:

Overruled – Rahimtoola v Nizam of Hyderabad HL 1957
A claim was made against the former High Commissioner for Pakistan personally for money had and received. He established that he had received the money in England in his official capacity as High Commissioner.
Held: Appeal allowed. The . .
Cited – Zoernsch v Waldock CA 1964
A claim was lodged against a former president as well as the current secretary of the European Commission of Human Rights. The former president, Sir Humphrey Waldock, was under the 1960 Order entitled to ‘the like immunity from legal process as is . .
Cited – NML Capital Ltd v Argentina SC 6-Jul-2011
The respondent had issued bonds but in 2001 had declared a moratorium on paying them. The appellant hedge fund later bought the bonds, heavily discounted. Judgment was obtained in New York, which the appellants now sought to enforce against assets . .
Lists of cited by and citing cases may be incomplete.

International

Updated: 30 April 2022; Ref: scu.219442

Church of Scientology: 1978

(German Supreme Court) A claim to immunity by the defendant (the ‘Head of New Scotland Yard’) was not ‘derived from his person’, but was based on the fact that the act on which the claimant sued was ‘a sovereign act of State which can only be attributed to the British State and not to him or any other official acting on behalf of that State, because the State is always considered the actor when one of its functionaries performs acts which are incumbent on it’. The acts of the defendant, as the expressly appointed agent of the United Kingdom for the purpose of performance of a treaty between the United Kingdom and Germany, ‘cannot be attributed as private activities to the person authorised to perform them in any given case’ and that ‘any attempt to subject State conduct to German jurisdiction by targeting the foreign agent performing the act would undermine the absolute immunity of sovereign States in respect of sovereign activity’.

Citations:

(1978) 65 ILR 193

Jurisdiction:

England and Wales

Cited by:

Cited – Jones v Ministry of Interior Al-Mamlaka Al-Arabiya As Saudiya Kingdom of Saudi Arabia) and Another CA 28-Oct-2004
The claimants sought damages alleging torture by the respondent whilst held in custody in Saudi Arabia.
Held: Although the state enjoyed freedom from action, where the acts were ones of torture, and action could proceed against state officials . .
Lists of cited by and citing cases may be incomplete.

International

Updated: 30 April 2022; Ref: scu.219448

Sengupta v Republic of India: 1983

India did not appear at court to take a point on jurisdiction under the 1978 Act. The Court asked for the appointment of an amicus to assist it.
Held: The court has a duty under statute to give the effect to the immunity conferred, even though the state does not appear to claim it. As to the issue of state immunity: ‘If we have asked ourselves the right questions, then in our judgment the necessary result must be that there is no jurisdiction to entertain the applicant’s claim. It is true that any private individual can employ another, i.e. can enter into a contract of employment. Therefore in that sense the entry into a contract of employment is a private act. But when one looks to see what is involved int he performance of the applicant’s contract, it is clear that the performance of the contract is part of the discharge by the foreign state of its sovereign functions in which the applicant himself, at however lowly a level, is under the terms of his contract of employment necessarily engaged. One of the classic forms of sovereign acts by a foreign state is the representation of that state in a receiving state. From the doctrine of sovereign immunity were derived the concepts that the embassy premises were part of the soil of the foreign sovereign state, and that diplomatic staff are personally immune from local jurisdiction. A contract to work at a diplomatic mission in the work of that mission is a contract to participate in the public acts of the foreign sovereign. The dismissal of the applicant was an act done in pursuance of that public function, i.e. the running of the mission. As a consequence, the fairness of any dismissal from such employment is very likely to involve an investigation by the industrial tribunal into the internal management of the diplomatic representation in the United Kingdom of the Republic of India, an investigation wholly inconsistent with the dignity of the foreign state and an interference with its sovereign functions.’ The tribunal could not hear the claim even though the employment had been at a low grade.

Judges:

Justice Browne-Wilkinson

Citations:

[1983] ICR 221

Statutes:

State Immunity Act 1978 1(2)

Jurisdiction:

England and Wales

Cited by:

Cited – United Arab Emirates v Abdelghafar and others EAT 29-Jul-1994
At a preliminary hearing, when the respondent failed to appear, the tribunal decided that it had jurisdiction to hear a case brought by the claimant against the respondent despite the 1978 Act. The respondent sought to appeal out of time.
Cited – United Arab Emirates v Abdelghafar and Another EAT 10-Jul-1995
The appellant challenged a decision by the tribunal made in its absence that the tribunal had jurisdiction to hear against it a claim for unfair dismissal.
Held: The tribunal had erred. Though Sengupta had been decided under common law, it . .
Cited – The United States of America v Nolan SC 21-Oct-2015
Mrs Nolan had been employed at a US airbase. When it closed, and she was made redundant, she complained that the appellant had not consulted properly on the redundancies. The US denied that it had responsibility to consult, and now appealed.
Lists of cited by and citing cases may be incomplete.

Jurisdiction, Employment, International

Updated: 30 April 2022; Ref: scu.214637

In re Piracy jure gentium: PC 1934

Charges of piracy were brought against Chinese Nationals who had pursued and attacked a cargo junk. They were indicted in Hong Kong for the crime of piracy and found guilty subject to a question of law: ‘Whether an accused person may be convicted of piracy in circumstances where no robbery has occurred.’ The Appeal Court of Hong Kong concluded that robbery was a necessary ingredient of the offence of piracy and the accused were acquitted. The case was referred on to the Board.
Held: International law has not become a crystallised code at any time, but is a living and expanding branch of the law. A distinction must be drawn between piracy under any municipal Act of a particular country and piracy jure gentium. A frustrated attempt to commit piratical robbery was equally piracy jure gentium. The charge was not under the domestic offence of piracy of Hong Kong, but was the international law of piracy, and determined accordingly: ‘With regard to crimes as defined by international law, that law has no means of trying or punishing them. The recognition of them as constituting crimes, and the trial and punishment of criminals, are left to the municipal law of each country.’ As to the domestic authorities in relation to the definition of piracy: ‘These, however, are immaterial for the purpose of this case, because it must always be remembered that the matter under present discussion is not what is piracy under any municipal Act of any particular country but what is piracy jure gentium.’ As to the international law of piracy: ‘A careful examination of the subject shows a gradual widening of the earlier definition of piracy to bring it from time to time more in consonance with situations either not thought of or not in existence when the older juris consultances were addressing their opinions.’

Judges:

Viscount Sankey

Citations:

[1934] AC 586

Cited by:

Cited – Jones and Milling, Olditch and Pritchard, and Richards v Gloucestershire Crown Prosecution Service CACD 21-Jul-2004
The court considered the extent to which the defendants in the proceedings can rely on their beliefs as to the unlawfulness of the United Kingdom’s actions in preparing for, declaring, and waging war in Iraq in 2003 in a defence to a charge of . .
Cited – Regina v Bartle and Commissioner of Police for the Metropolis and Others, ex parte Pinochet Ugarte; Regina v Evans and Similar (No 3) HL 24-Mar-1999
An application to extradite a former head of state for an offence which was not at the time an offence under English law would fail, but could proceed in respect of allegations of acts after that time. No immunity was intended for heads of state. . .
Cited – Regina v Jones (Margaret), Regina v Milling and others HL 29-Mar-2006
Domestic Offence requires Domestic Defence
Each defendant sought to raise by way of defence of their otherwise criminal actions, the fact that they were attempting to prevent the commission by the government of the crime of waging an aggressive war in Iraq, and that their acts were . .
Lists of cited by and citing cases may be incomplete.

International, Crime

Updated: 30 April 2022; Ref: scu.200231

Rey v Lecouturier: CA 1908

Action was taken by or in the name of one Celestin Marius Rey, who was the Procureur of the Carthusian Order. He was registered in England as the legal owner of the Grande Chartreuse trade-marks. The business of manufacturing liqueurs, together with the goodwill and the trade-marks, were the property of the monks as an association and not the property of the plaintiff Rey
Held: A ruling by the French courts that the ownership of the trade mark Chartreuse (formerly belonging to the monastery of Grand Chartreuse) had passed to a liquidator under French law, could not affect the title to the English trade mark, since the French courts had no jurisdiction to determine title to this English property.

Judges:

Buckley LJ

Citations:

[1908] 2 Ch 715, [1910] AC 262

Jurisdiction:

England and Wales

Cited by:

Appeal from – Rey v Lecouturier HL 1910
A ruling by the French courts that the ownership of the trade mark Chartreuse (formerly belonging to the monastery of Grand Chartreuse) had passed to a liquidator under French law, could not affect the title to the English trade mark, since the . .
Lists of cited by and citing cases may be incomplete.

Intellectual Property, International

Updated: 30 April 2022; Ref: scu.199526

MacPherson v Buick Motor Co: 1916

(New York Court of Appeal) A manufacturer of a defective motor-car was held liable for damages at the instance of a third party. A motor-car might reasonably be regarded as a dangerous article: ‘There is no claim that the defendant know of the defect and wilfully concealed it . . The charge is one, not of fraud, but of negligence. The question to be determined is whether the defendant owed a duty of care and vigilance to anyone but the immediate purchaser . . The principle of Thomas v. Winchester is not limited to poisons, explosives, and things of like nature, to things which in their normal operation are implements of destruction. If the nature of a thing is such that it is reasonably certain to place life and limb in peril when negligently made, it is then a thing of danger. Its nature gives warning of the consequences to be expected. If to the element of danger there is added knowledge that the thing will be used by persons other than the purchaser and used without new tests, then, irrespective of contract, the manufacturer of this thing of danger is under a duty to make it carefully. That is as far as we are required to go for the decision of this case. There must be knowledge of a danger, not merely possible, but probable . . There must also be knowledge that in the usual course of events the danger will be shared by others than the buyer. Such knowledge may often be inferred from the nature of the transaction.. . . . The dealer was indeed the one person of whom it might be said with some approach to certainty that by him the car would not be used. Yet the defendant would have us say that he was the one person whom it [the defendant company] was under a legal duty to protect. The law does not lead us to so inconsequent a conclusion,’

Judges:

Cardozo J

Citations:

(1916) 217 NY 382

Citing:

Cited – Thomas v Winchester 1852
(New York) A chemist carelessly issued poison in answer to a request for a harmless drug, and he was held responsible to a third party injured by his neglect. . .

Cited by:

Cited – Donoghue (or M’Alister) v Stevenson HL 26-May-1932
Decomposed Snail in Ginger Beer Bottle – Liability
The appellant drank from a bottle of ginger beer manufactured by the defendant. She suffered injury when she found a half decomposed snail in the liquid. The glass was opaque and the snail could not be seen. The drink had been bought for her by a . .
Lists of cited by and citing cases may be incomplete.

Negligence, International

Updated: 30 April 2022; Ref: scu.197982

Texas v Johnson: 1989

Citations:

(1989) 491 US 397

Cited by:

Cited – Percy v Director of Public Prosecutions Admn 21-Dec-2001
The defendant had been convicted of using words or behaviour likely to cause harassment alarm or distress, when she defaced the US flag, and stood on it before a US military officer. She said that the defacing of flags was a common form of protest, . .
Lists of cited by and citing cases may be incomplete.

International

Updated: 29 April 2022; Ref: scu.183026