Article, Courts

Will European initiatives to create international commercial courts be attractive enough for foreign litigants post Brexit?

Sophie Hunter

Guy Canivet, president of the High Legal Committee of the Financial Platform of Paris recently told the press that Brexit is a real eye opener, because it triggered the need to come up with an alternative to London, in order to better respond to a change in relation between the UK and parties from the continent. With the deadline of the Brexit looming ever closer and growing tensions fueled by the uncertainty of its outcome, competition between major European capitals is under way to fulfill the gap that will be left by London on March 29 2019. Paris, Frankfurt, Amsterdam and Brussels have recently announced or created specialised international commercial chambers in their jurisdictions.

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Article, Legal Procedure

Rule of Law enforcement in the EU: The Limits of the legal enforcement of Values

Jacob van de Beeten  

  1. Introduction

Increasingly, the EU is using Treaty instruments to enforce the common values of Article 2 Treaty on the European Union (TEU) – human dignity, freedom, democracy, equality, the rule of law and human rights – in recalcitrant Member States. With the adoption of the Sargentini report in the European Parliament, Hungary is now – like Poland – facing the Article 7(1) TEU procedure under which the European Council can determine the existence of a  “clear risk of a serious breach” of the rule of law. In response, Hungary has challenged the legality of the Parliament’s vote.

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Article

Challenging Harmonisation and Uniformity in EU asylum law: A Broader Problem of International Law?

Jenny Poon 

Introduction

The conflict in Syria has brought a large number of asylum claimants across Europe into sharp relief. This is precisely the time when the Common European Asylum System (CEAS) should be closely monitored and scrutinized to ensure access to international protection for those deserving it.

The CEAS expresses political willingness by the European Union to establish a harmonised, fair, and effective asylum procedure to process asylum claims across EU Member States while complying with international law obligations to protect asylum claimants fleeing persecution.[1] The three key instruments of the CEAS include: the Dublin Convention (1990), the Dublin II Regulation (2003), and the Dublin III Regulation (2013).[2] The latter Regulation identifies the Member State responsible for examining the asylum application, which the aim to enhance efficiency, prevent forum-shopping, and promote harmonisation within the EU asylum system.[3]

This blog post argues that the CEAS as a whole has partially failed its goals of achieving harmonisation and uniformity in the area of asylum law. The lack of uniformity and harmonisation among the practices of the Member States in such an area is due, in particular, to the fragmentation of international law.[4] While some argue that EU law, as interpreted by the Court of Justice,[5] is an autonomous legal order, this blog takes the internationalist view to suggest that the EU legal order should comply with relevant international law obligations in the area of asylum law, as requested in Article 78 TFEU.

Harmonisation and uniformity in the area of asylum protection may be achieved when Member States comply with the CEAS in a coherent and standard manner, while at the same time adhering to their international law obligations such as non-refoulement, protected under the ECHR. It is important for the CEAS to be aligned with international law and in particular, the principle of non-refoulement as protected under the ECHR, for two reasons: First, to effectively protect asylum claimants and refugees; second, to prevent erosion of the international refugee law regime by the variation of interpretation by EU Member States.

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Article, Case comment

Inching Towards an EU-Wide Recognition of Same-Sex Relationships?

Adel Msolly

Introduction

Harmonisation in EU law has been justified as means of facilitating the internal market. Such process has expanded to areas of law not economic in nature, family law being the prime example. Broadening EU competence in family law and thus furthering judicial cooperation in civil matters is necessary to enable free movement of persons and their family members (see Article 81(3) TFEU). As such, EU enjoys competence in family law on conflict of laws matters in matrimonial proceedings, parental responsibility, maintenance and succession. However, family law is one of the areas most laden with socially sensitive issues, every Member State having different values and policies in the field.

Nowhere is this divide in policies more apparent than in the context of recognition of same-sex relationships. Currently, under EU law some Member States have full marriage equality (e.g. United Kingdom[1], Netherlands), some provide for registered or civil partnerships (e.g. Italy, Czech Republic), and some offer no recognition[2] (e.g. Bulgaria, Slovakia). It does not seem likely that there would be a Regulation to legalise same-sex marriage across the EU any time soon. Notwithstanding, the discrepancies in marriage laws across the EU do hamper free movement of persons; just like heterosexual marriage, same-sex marriage and civil partnerships also have consequences in other areas of law, namely property law (for instance, in some Member States certain ways of owning joint property are only available to married couples[3]), succession (how do same-sex spouses or registered partners inherit on their spouse’s death?), among others. Does EU law address this at all?

This blog post will examine the current state of EU law on recognition of same-sex relationships, which is at a standstill. In this context, it is worth mentioning that the Coman case, currently pending before the ECJ, holds great potential for reform. Subsequently, the post considers whether existing EU law on succession and property regimes provides for at least limited recognition of same-sex relationships even in those Member States that do not recognise same-sex relationships outright. Same-sex partners should not need to navigate technical areas of EU law in order to ensure that they can, for instance, inherit the same way a heterosexual married couple would. However, such a limited recognition is a step in the right direction, and may affect attitudes in more conservative Member States, so that one day an EU-wide regime on recognition of same-sex relationships would be viable.

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