Legal Pluralism in Afghanistan Revisited: From Theory to Practice

In one of my earlier blogs focusing on Afghanistan, I spoke about the possibility of reconciling the various systems which exert authority within the country. The next question that arises is what this actually mean for Afghanistan.

Framework for Navigating Normative Variations

In moving from theory to practice, it may be most fruitful to take a step back from the various abstract and, at times, esoteric discussions of legal pluralists – a discussion based in legal anthropology – and step into the shoes of the practicing lawyer. The realities she faces day-to-day shed light on the task of navigating through competing normative realities. The writing of Professor Singer, in this regard, is particularly insightful:

Many philosophers seek theories that dissolve incommensurabilities by appealing to higher order norms or metatheories that provide rational priorities among competing values. Lawyers and judges and law makers, on the other hand, are rarely beguiled by monistic theories. We make utilitarian arguments; we talk about rights, justice, fairness; we are concerned to define the appropriate institutional role for judges in a free and democratic society; we tell the story; we resort to process to solve substantive problems. Moreover, we are skeptical about the ability of rigid priority rules to determine just outcomes in specific cases. In short, we use multiple normative strategies, unashamed that we are unable to find killer arguments that put all normative controversies to bed or…

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An early pitch for the Hague Maintenance Convention

In private international family law, a party (an obligee, that is) may face a legal maze when enforcing a foreign spousal support/maintenance order against a former spouse (an obligor). The U.S. state courts offer an illustrative example.

But before heading Stateside, I will mention some private international law instruments on this topic.

The Hague Conference on Private International Law has completed the Convention of 23 November 2007 on the International Recovery of Child Support and Other Forms of Maintenance. However, with only two signatories (the U.S. and Burkina Faso) and no ratification, this convention has not entered into force.

Nor do previous instruments offer much help. The predecessor 1973 Hague Conventions on the topic garnered relatively meager support. Some reciprocal agreements exist between the U.S. or U.S. states and other countries, but careful analysis reveals little uniformity among these agreements.

Thus, private international law agreements do not—yet—provide much clear help on this subject.

So in the U.S., domestic courts play the leading role, and the first issue in the domestic courts will be recognition. For those readers yearning for the “good old” private international law days, we now turn to the familiar subjects of comity and jurisdiction-specific law.

Based on comity, U.S. courts may recognize foreign maintenance orders. Comity—very generally—is a largely judicial doctrine whereby foreign court orders were obtained through proceedings in a foreign state that do not offend a strong public policy of the recognizing state.…

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Habitual Residence in the EU?

Habitual residence faces considerable uncertainty in the EU.  Regulation 2201/2003—also known as Brussels IIbis (“BIIbis”)—establishes jurisdiction in parental responsibility disputes among EU Member States. (Here is an overview of EC Regulation 2201/2003).   Habitual residence is the key factor in determining jurisdiction.  This post analyzes a recent ECJ case and then contrasts its holdings with two subsequent UK cases.

a.  Habitual Residence in the ECJ

The ECJ has endorsed a fact-based habitual residence test for cases under BIIbis in one decision so far.  The case, A (C-523/07), involved a parental responsibility dispute between a mother and a public child welfare agency.  Three children who lived with their mother and stepfather in Sweden since 2001 traveled as a family to Finland in the summer of 2005 to spend their summer holiday.  While still in Finland in October 2005, they applied for public housing.

In November, a local welfare agency removed the children to a childcare unit.  The mother unsuccessfully challenged this action in a Finnish court.  On appeal, a Finnish appellate court submitted four questions to the ECJ.
In the central question, the Finnish asked how to determine the children’s habitual residence, considering their peripatetic lifestyle in Finland.  The Advocate General’s (“AG”) opinion framed the issue with the need for a precise definition of habitual residence in light of the spirit and purpose of BIIbis and the best interests of the child.  Distinguishing between presence and habitual residence,…

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Child abductions and treaty interpretation

Private international law is, of course, a huge topic.  A leisurely flip through the 1390 pages of Cheshire and North’s comprehensive text reveals the subject’s breadth.  As society becomes more mobile and borders more porous, e.g. the European Union, private international law will only likely continue to grow.

One of the most “private” areas of private international law is international family law (which is, oddly enough, my focus area—see, e.g., my blog).  Just this month, the United States Supreme Court heard a case involving a major private international family law convention, the 1980 Hague Convention on the Civil Aspects of International Child Abduction.

The Convention’s name tends to confuse some lay readers—it only deals with jurisdiction in cross-border custody disputes, not the more sinister cases that the words “child abduction” connote.  The Convention primarily preserves jurisdiction in child custody disputes by providing an immediate return if a parent wrongfully removes a child from its country of habitual residence.

The father in the case before the U.S. Supreme Court, Abbott v. Abbott, contended that the mother wrongfully removed their child from Chile.  The cases focuses on the ne exeat issue under the Convention.

Courts use ne exeat orders to preserve jurisdiction in custody disputes by forbidding a custodial parent from taking a child outside of a court’s jurisdiction without the express consent of the other parent or the court.  However, ne exeat orders have an uncertain status under…

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Bil’in (Village Council) c. Green Park International Inc: an Overeaching Assertion of Jurisdiction?

In his detailed analysis of Bil’in (Village Council) c. Green Park International Inc, James Yap argues that the plaintiffs will have a great chance of overturning Cullen J.’s decision to decline jurisdiction. Since our own Alexandra Dodger introduces this intricate case very well, I direct those who are unfamiliar with it to her entry. While I welcome the decision for its potential to end the impunity with which Canadian corporations operate overseas, I believe that the Court of Appeal would not overturn Cullen J.’s decision if it did hear the matter. I agree with the outcome because the connection between the dispute and Québec is far too superficial for a Québec court to legitimately claim jurisdiction over the action. However, the issues raised by the application of forum non conveniens to this case should make us think twice before dismissing the plaintiffs’ action as an abusive or exaggerated assertion of jurisdiction.

The main problem with bringing this action in Québec is that its connection to Québec is extremely weak. Pursuant to article 3134 of the CCQ, the court took jurisdiction over the action because it found that the defendants were domiciled in Québec (Bil’in, para. 207). While the fact that the defendant has its domicile in Québec might normally be determinative in establishing jurisdiction, such a factor should be inconclusive in this instance. As Cullen himself later points out

this lone and apparent…

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Quebec Courts Open a New Chapter on Corporate Civil Liability: Paying for War Crimes?

The Palestinian village of Bil’in is headed to the Quebec Cour d’appel, in an attempt to hold two Montreal corporations civilly liable for their actions in the occupied Palestinian territories. Justice Louis-Paul Cullen of the Superior Court ruled against the villagers in a decision handed down on September 18, 2009.

Bil’in is a tiny agricultural community of 1,800 residents located 12 kilometres west of Ramallah, well within to the 1967 Armistice line dividing Israel and the West Bank. Though it is firmly rooted in the Occupied Palestinian Territories, the village has been bisected by the Israeli “Security Barrier”. The route of the barrier was deemed to be illegal, and in breach of international law by the International Court of Justice in 2004. In 2007, the High Court of Justice in Israel ordered the wall re-routed, confirming they saw no security or military reasons to maintain the current path of the wall, deeming it “highly prejudicial” to the villagers of Bil’in. Still, the wall remains in place, prompting Bil’in and its allies to seek new forums for judicial redress.

Their attorney, Israeli human rights lawyer Michael Sfard, decided a new approach was needed and began to target the corporations that he claims are complicit in the loss of Bil’in’s land. On the other side of the Israeli barrier, the settlement bloc of Modi’in Ilit has been constructed. And the development companies building these rapidly growing…

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