 Rhaid o ddulluniaeth a ffraeg yn gael y mae'r ffordd a'r byfferdd yn y tyw'r cyffredin iawn i'r Llyfrgelliant yng Nghymru, ac fynd i'w ddweud o'r ddweud o'r ddweud o'r ffordd yn gweithio, ac mae'r ddweud o'r ddweud o'r sgwrs cyffredin iawn. Rydym yn cynnig sydd wedi cael y cyfnab Chang i llwyddonu. Be ffwrdd wedi aru weithio cerddur sy'n cyfrifio'r rhaid i chi'n eu gweithio'r cyfrifio allaf. Fyddwch chi fydd ei defnyddio y ffrwrdd, mae yna hwn ac yn bob gweithio erioed flond, lle o gwchiffach ar hyn yn maen nhw yma, gan y mewn cyfrifio oherwydd'r cyfrifio a'r hyn sy'n gweithio chi eisiau'r cyfrifio. First and foremost, of course, to everybody at the University of Cambridge who's made this reality to Richard, to Pippa, to Louise, to everybody else who's wearing a red badge and no doubt various people aren't wearing a red badge who made this happen. So thank you very much to them, thank you very much to all of you for supporting our conferences through attendance and through our speakers. We are very grateful. This also seems an opportunity for me to thank our editorial board. Many of the members of that board have served for a long time. They do a great deal of refereeing and other work to support the journal behind the scenes and we couldn't possibly make the journal work without all of their efforts and I think the editorial board very much. And many others I might say who are not on the board who've assisted us with the refereeing activities which are core to our work. So thank you all very much. When we first started the journal in 2005, Paul and I thought we had a reasonably good idea for a specialist English language journal in the field but were slightly bothered by the idea that if it was such a good idea, why haven't anyone done it before and would any of you write for us? Paul hit on what I think was the best idea we ever had which was to launch with a conference to get people together and to get people interested in the journal and writing for the journal hopefully and we launched the journal in 2005 in Aberdeen with a launch conference. I think it's fair to say that since then the conferences have been an absolutely integral to what we do and what we're about and this opportunity which I think is perhaps more or less unique to bring people together on all different stages of their careers from any jurisdiction to interact with one another and hopefully in due course to submit papers to the journal which we accept regardless of the place of origin or the seniority of the author our criterion is very simple it is a merit of the piece and that is all. But the last and perhaps most important thing I want to do is to express my thanks as I try to to assuage my guilt on these occasions to Paul. Paul is the driving force behind this journal Paul does most of the work of this journal where I'm gallivanting around and without Paul's dedication to the journal it certainly wouldn't be one of these so it's a particular delight to me that the first person of that to introduce is Paul but I can't express my thanks to Paul enough. Okay enough of that and turning to the panel I will introduce our speakers one by one and as it so happens going first are Paul Beaumont. I've said enough about you Paul I'm not going to give you another build up. Jane Holiday from the University of Aberdeen and also Laura Walker from the University of Sussex. Now they're talking to us about Brussels 2A and they're talking to us about conflicts between the place of habitual residence and the place of refuge and how the total mutual trust operates in that context so I will hand over to that. Well good afternoon everyone and just want to begin by thanking everyone for the opportunity for actually presenting the research here this afternoon. In April 2014 we began our research project which is funded by the Norfield Foundation to look into the effectiveness of the child abduction provisions within Brussels 2A regulation and in particular we wanted to look at the way article 1168 of Brussels 2A regulation is operating within the European Union where the party's rights such as hearing the child were being protected. The procedure within article 1168 allows the courts of the habitual residence of the child to issue a new decision ordering the return of the child where the state of refuge has issued a non-return order on the basis of one of the exceptions within article 13 of the 1980 Hague Convention on the Civil Aspects of International Child Abduction. The exceptions to returning the child under the Hague Convention are that the left behind parent consented or acquiesced to the abduction or that the child would be exposed to a grave risk or physical or psychological harm if they were returned or they would be placed in an intolerable situation or the child themselves objected to their return. Such a decision under article 118 by the courts of the child's habitual residence must be accompanied by an article 42 Brussels 2A certificate but with the abolition of the execuater must be enforced in the state of origin so in essence what we have within article 118 is it allows the state of the child's habitual residence to reject another member state's courts decision not to return the child and to insist upon that return. Now in order to be able to evaluate how this procedure was operating we needed to gather as much data on article 1168 from each member state but this actually proved to be quite challenging. Our first approach was to contact all the central authorities in each member state to collect the data on article 1168 proceedings from the date Brussels 2A came to force in March 2005 until the end of February 2014 however unlike the Hague abduction cases which do have to go through the central authority article 118 proceedings do not and therefore the responses to the question now were by no means comprehensive. Other factors also hindered the ability of the central authorities to supply the data and these were lack of human resources lack of a comprehensive database or in some cases such as Greece any lack of a computerised database at all. In addition unlike the Hague child abduction convention proceedings where jurisdiction is generally concentrated in most member states any court that hears family disputes can hear article 118 proceedings and the fact that these applications are often heard in first instance courts means that they are largely unrequited. Thank you Jane. Well it might come as no surprise that we conclude that the system is a failure and if a system is a failure it's probably best to repeal it and that is our primary recommendation. Why repeal it rather than just let it continue to fail well because it raises a lot of false hope and expectations for usually left behind male parents that they might still get their child back when in fact they won't. So that's the sort of primary conclusion. However there are things that we would recommend could be done to improve the Hague system the article 13 return system because in a sense we would rather we deal with these things at source rather than trying to lock the stable door after the horse is bolted which is the approach of article 11 of Brussels 2A. So what you should have in a well functioning legal order on child abduction is very quick return proceedings in the country of refuge. The Brussels 2A system tries to achieve that. Reality is it's not working but that's another story and you should have in those adjudications quick returns by the judges. One of the problems we've identified with why judges are sometimes reluctant to return children is that if they think there may be a risk of harm with the child returning they may not be able to satisfy themselves that sufficient protective measures are in place to allow the handle of the child back to the country of abitual resonance. One small thing that could help to improve that but not insignificant would be to clarify the article 11 of the 1996 Children's Convention which is now enforced in all the member states of the EU apart from Italy and Italy are about to ratify I am now reliably informed. That article 11 allows protection measures to be taken in cases of urgency which do not have a limited territorial effect unlike the measures that are currently available under Brussels 2A which are under article 20 which refer back to national law but only have limited territorial effect. So the problem we have at the moment is that article 62 paragraph 1 of Brussels 2A says that the 1996 Convention only applies between EU member states in relation to matters not governed by the Brussels 2A regulation and it's at least unclear whether these article 11 protection measures which are recognised by operation of law in the other member states of the, the contracting states of the 1996 Convention are within matters governed by the Brussels 2A regulation. In any revision which we're about to have of the Brussels 2A regulation it would be sensible to clarify that article 11 protection measures can circulate, article 11 1996 Convention protection measures can circulate within the EU that would have the benefit of ensuring that an order can be made for example to say that the left-bound father can only have supervised access in relation to supervised contact in relation to the child until the courts of the habitual residence have the time to actually deal with the case. So the beauty of that is you make the order in the court of refuge but it actually applies in the court of habitual residence, the country of habitual residence until the matter is actually before the courts there so there's no gap whereas there is a gap at the moment. One other recommendation which is that one of the reasons why sometimes courts are reluctant to send the child back is because the mother is facing a threat of criminal proceedings in the country of habitual residence and the mother therefore won't go back with the child because of those criminal proceedings and that can lead to a judgment that it's actually going to do serious psychological harm to the child to go back without the mother. If we had a rule that said that if the mother returned with the child the criminal proceedings would be dropped it would considerably help. The idea that we could actually get that through in the Brussels 2A revision I recognise is idealistic but I'm making the point on the left. Another advantage of Article 11 of the 96 Convention, small advantages that you can get urgent measures for access while the aid return proceedings are pending in the court of refuge. Again it should be clear that within the EU you can use that tool so that you don't lose the contact between the left-pine parent and the child and often in the real world what the left-pine parent really wants is ongoing contact. They don't want full custody and if you can ensure that they get that contact they don't lose the contact in quite a lot of cases that will in the end be sufficient and that would reduce the problem. Another recommendation is that all member states of the EU should be required to provide the aid for 1980 Convention proceedings and that they shouldn't be permitted to make a reservation under Article 42 and 26 of the 8 Convention now that the EU has exclusive competence in relation to the 1980 Convention. It seems to me somewhat anomalous now that the EU has exclusive competence that we have a wide variation in practice within the EU on the issue of whether the aid is required for aid cases or not. Our other recommendations are on the basis that the Commission may not have the confidence to propose strapping the Article 11 Brussels 2A system and therefore we make some recommendations of what we might do if they were trying to deform it. The first one would be to concentrate proceedings in the same way that Article 13 proceedings are generally concentrated now. It has to be said that there's no requirement yet within the EU to concentrate Article 13 proceedings so this recommendation in my view cuts both ways and we would like to see concentration of proceedings in all aid cases, Article 13, the tongue order cases and if we have them still versus 2A Article 11 because you will then have the benefit of specialist judges who actually understand the problem can deal with these cases as quickly efficiently as they need to be dealt with because the longer the delays the more the child assimilates in the new environment and it becomes totally unhelpful and unhealthy to send the child back. So the countries that work well are indeed the United Kingdom and the Netherlands that have concentration of jurisdiction and do deal with these cases efficiently. It's quite clear that the countries that don't have concentration of jurisdiction specialisation take far too long and they undermine the nature of the system. There is one possible exception to that and that would be in Article 11, 6 to 8 proceedings where custody proceedings are already well advanced in the court of origin in the habitual residence court. It may be then too late to concentrate the jurisdiction in the hands of specialist judge so you might have to have an exception. I'll try and rush through the next couple of recommendations. The Article 11, 8 proceedings at the moment do not make it clear that the return order can only be granted on the basis of a full welfare consideration of best interests analysis and in fact the European Court of Justice in the pubsy case said that you can make an order just in order to get the child back to have a hearing. Well we would like to reverse the pubsy decision on that, we would like to clarify that you only make this drastic step asking the child to come back if you are deciding on the merits that that is the best outcome and furthermore it should only be done when you're deciding that the residence order, the custody should be in the country of habitual residence. There are some English cases where judges have used it to actually just reinforce contact in England which is ridiculous and doesn't fit the terms of the regulation at all and then pretty much lastly we would like to see some improvement as we've noted. The hearing of the parties, the hearing of the child, is pretty chaotic yet the Article 42 certificate is the abolition of the ex-equator is based on the idea that you guarantee that the parties have been heard and that you guarantee that the issues raised in the country of refuge have been properly considered by the country of habitual residence. We feel therefore we need to do more to ensure that the parties are actually heard and the child is heard whenever it's appropriate for the child to be heard and we need to do more to ensure that the certificate is properly filled in. We have examples of English High Court judges answering questions yes and no which actually require articulation but they still just fill in yes or no and I mean English High Court judges family division, not people who don't know much about it. So if even they are making a mess you know you can see how problematic the situation is. So that's what we a very quick summary of what we would recommend should have. I should say as the last note that Lara has agreed to answer all questions from her. Well thank you very much for that masterful exposition and situation I'm sure there will be questions later but I think we should move on now to the succession regulation. Now from time to time I try and get friends and colleagues perhaps over a drink to take interest in the succession regulation so that I'm fairly passionate about myself and it tends to elicit one of two typical responses either they make their excuses and go somewhere else or you get the sort of response it's got nothing to do with us that's something that we did to Nat and we don't need to know anything about that thank you very much. So I'm delighted that our next speakers are going to tackle something that's dear to my heart about why the succession regulation matters very much and why those the amygdal regulation may be rather wider than they first appear and I'm delighted to introduce two speakers who've been great supporters of the journal Professor Janine Carothers who was very much involved in the launch of the conference Way the Journal of the Conference Way back in 2005 and Professor Elizabeth Crawford from the University of Glasgow. Well good afternoon ladies and gentlemen thank you Jonathan for your introduction. Now there are many observations detailed observations which could be made on the technical content of Rome 4 the regulation 650 2012 we refer to it as Rome 4. The purpose of our talk is not to appraise the regulation article by article but Jonathan will be happy to conduct such a session in the bar this evening on that particular theme rather what we intend to do in the time available is to outline the possible effects of that instrument on the estates of UK nationals and also on assets which are situated in the UK but belong to nationals of other member states and what really we want to do is to demonstrate that the decision by the UK not to opt into Rome 4 does not mean that the persons such persons of UK nationals or property within the UK belonging to other nationals are unaffected by the regulation. We're drawing many of the thoughts that we're referring to today from an article which we've published under the name speculation on the operation of regulation 650 2012 tales of the unexpected I think that title probably says it all so what we can't do with today can be read elsewhere. The instrument Rome 4 was finalised on the 4th of July 2012 and applies to the succession of persons who die on or after 17th August 2015 and the focus of what we want to look at today is which persons and to what extent. The starting point is recital 82 of the instrument in accordance with protocol number 21 on the position of the UK and Ireland those member states are not taking part in the adoption of the regulation they're not bound by it or it's subject to its application. The UK Government decided in December 2009 not to opt into the European Commission's then proposed regulation on rules and succession and despite early intimation of that non participation by the UK the final version of Rome 4 though stating quite starkly this opt out nonetheless seems quite willfully blind to the situation as it transpired that not all EU member states have adopted the regulation and the repercussions of that. You might say a defect by way of omission in the drafting of the regulation is the absence of an acknowledgement that as a result of the decision of the UK and Ireland and also the position of Denmark that there exist three categories of state for the purposes of this instrument. We've got the participating member states by far the largest number we've got the non participating member states of which there are three and then we've got the third states obviously external to the EU altogether. Now the first category of state clearly is affected by Rome 4 that's the very purpose of it. Yesterday in the succession panel Professor Buonoiti spoke about the position of third state so Elizabeth and I don't want to look at that today but what we do want to consider is the position of the non participating member states. Now in contrast with the position taken in Rome 3 on choice of law in Wilson's in abortion legal separation Rome 4 admits only two categories of member state sorry two categories of state Rome 3 specifically refers to the participating member state and the non participating member state and it's commendable for that explicit recognition of the two categories and the implications of that. Rome 4 on the other hand I think can be criticised for the failure to recognise that there are the two categories of member state those which are bound by it in which it's directly applicable and those three member states which are not bound by it. So Rome 3 gives us an instrument for a discrete topic which is fairly containable and operates among that group that cohort of EU member states. Divorce is optional DEG is not and what we have to deal with is the fact of these two groups of member states for Rome 4 how does the instrument actually address that. On the assumption that the UK and Ireland and Denmark cannot be considered for this purpose a member state at least as far as the rules on jurisdiction are concerned then they must be considered as full third states if you like. No jurisdiction is conferred upon them by the rules in chapter two even by submission of the parties. When we move to chapter three of the instrument though that chapter opens on choice of law by enunciating the principle of universality and it's clear that the regulation broadens its ambits in relation to choice of law the terminology changes from member state to state. Chapter four deals with recognition enforceability and enforcement of decisions. While legislative vires would suggest that as with chapter two on jurisdiction the rules in chapter four are intended to apply only among the net of compliant member states we have considered in the article in more detail that in view of the facilitative character of this instrument some inroads into that principle might be admitted but it's unlikely today that we'll have time to go there. Now to recap I think it might be useful we're aware over these two days three days of the size the sheer scale of our subject and not everybody will be working in the detail of Wales's succession so there might be some benefit in giving a pricey of the the content of the instrument. This regulation is called Ruple in Nature. Chapter two as I've said deals with jurisdiction, chapter three choice of law, chapter four recognition enforceability and chapter six introduces the European certificate of succession. In terms of article four on general jurisdiction as a general rule the courts of the member state in which the deceased had his habitual residence at death shall have jurisdiction to rule on the succession as a whole. Article 21 is the general rule of applicable law the law applicable to the succession as a whole should be the law of the state in which the deceased had his habitual residence at the time of death unless by way of exception it's clear Monica I'm not sure what you would say about this in the escape clause it's clear from all the circumstances of the case that at the time of death the deceased was manifestly more closely connected with another state in which case the law of that state shall apply however by article 221 a person may choose as the law to govern a succession as a whole the law of the state whose nationality he possesses at the time of making the choice or at the time of death and there are various elaborations on that choice of law provision in a clear symbiosis between that the rules in chapter two on jurisdiction and chapter three on choice of law where a choice of law has been made and the choice is that of a member state the party's concerned is an undefined concept the party's concerned may agree that the courts of that state that member state are to have exclusive jurisdiction to rule on any succession matter so the parallelism there between jurisdiction and choice of law article 20 gives us the principle of universality the applicable law determined pursuant to the general rule in article 21 or party choice in article 22 governs the succession as a whole so that means importantly that the unitary instead of the decision principle will operate and purportedly at least regardless of whether the assets are located in a participating EU member state in a non-participating EU member state or in a third state now the lex success eonus has a wide scope of application and it shall govern capacity to inherit disinheritans disqualification to conduct liability for debts the reserved shares restrictions on disposable disposal of property and any claims which persons close to the deceased may have against the estate which includes significantly the principle of clawback so that the crazy off we were at with the regulation just before i begin my part i was reminded of the the old joke of the man who said he understood that death is not optional but he hoped an exception would be made in his case so i'm talking first of all about the the phenomenon of hybridity um we use this term in private international law to describe the interface between a regulatory regime that is we're talking of EU regulatory regimes and the world beyond that regime and this hybridity manifests in various guises geographical um it's necessary to determine the physical extent of application if any of a european regime's rules uh in circumstances where there are factual or legal connections with an EU state and a third state uh problems famously have arisen in relation to the process one regulation delineating the geographical scope of the operation of its rules uh and one of the points of debate in the drafting of the recast uh was said to be the operation of the european rules in the international legal order a euphemism uh for addressing the rarely harmonious relationship uh between EU member states and third states in civil and commercial jurisdiction and judgment enforcement and in particular the implications of the existence in the member states of residual national rules of jurisdiction of widely varying content this sort of area has given rise to interesting decisions under the heading of reflexive reasoning then there is hybridity where subject matter is concerned where there's an overlap between the subject matter covered by the regime and the residual national rules of participating legal systems resulting in a struggle for supremacy then sometimes it's more uh patent a disconnection clause uh will recognize and aim to solve the problem of the ranking of instruments to solve the problem for the forum where there is a posibl struggle between an EU instrument and or more than one and an international instrument in the same auto company fields but what we are dealing with in Rome 4 is i think different new as the the program evolves it concerns the delineation of the extent of the operation of the instrument within the EU where you have EU member states which are not bound by that regulation as to nomenclature what we used were the expressions compliant member state non-compliant member state and third state but people have suggested that non-compliant member state is perhaps wrong it sounds rather inflammatory aggressive and there was never any obligation upon the UK to comply we have the choice non-participating we feel is rather peculiar to Rome 3 and non-involved begs the whole question which we're looking to address today uh non-compliant might be better but it trips off the tongue rather less readily than non-compliant and so we'll stick with that um how can it be that Rome 4 may affect persons connected with the UK or with property in the UK when we have not opted in there on the screen are three possibilities of many possibilities but if we think of those possibilities a UK citizen who owns assets immovable or movable in a compliant member state how common is that or the case of an individual who's judged to be habitually resident of death in a compliant member state or as a national and who's a state includes property situated in the UK the case of a compliant member state national who's a state includes property situated there but who at death is judged by whom as habitually resident in the UK and we intend to paint a very few portraits illustrating we hope this problem now the outcome were conjecturing the outcome will depend on a number of things including very importantly the identity of the principal forum dealing with this the anchor jurisdiction uh the court which is most likely to take jurisdiction um either under Rome 4 or under our national rules and bearing in mind the fact that in the UK we don't really think of this very often as a contentious matter um and we don't often think in terms of jurisdiction uh equally the outcome will depend on the operation of the enforcement rules which as far as non-compliant member states are concerned seem to us to be purely aspirational and now picture having articulated these thoughts um we must test them but um I must say that when we were thinking of it we did think of this analogy of um you see there the Cory Brecon which is a famous whirlpool off the west coast of Scotland near Dura and it's caused by turbulence at the spring tide and Jonathan said that his friends thought that the UK wouldn't be interested or bothered by this but actually I think we might be going into the vortex of quite a lot of trouble with this particular regulation and you may only those film buffs will recognise the the photograph at the bottom this is a story in a Powell and Pressburger film which used the Gulf of Cory Brecon as an essential part of the plot and in fact the lady couldn't access her fiance across the Gulf of Cory Brecon so she simply decided to marry somebody else who was on the mainland so um we're now going to turn to the portrait painting okay we're not just a double act double act we've got a few friends with us as well as Wendy Hiller that's Wendy Hiller theme actress there are some cases where you can clearly say while the succession is beyond the reach of Rome 4 safely beyond it if we take a character Lennon B Angus who is a UK national domiciled and habitually resident at death in a non-compliant member state let's see the scots habitual resident he's going to state at death situated only in Scotland then clearly he is beyond the reach but that is about as straightforward a case as we can say it with bulk of successions in our jurisdiction but the clarity extends really only that far I think when we want to say who is within the reach first of all we have to take at face value certain of the assumptions which underlie Rome 4 first of all that habitual residents at death is the preeminently appropriate connecting factor as a single like successive onus and further that agreement on that notoriously difficult factor will be readily achieved in any given case ease of identification of habitual residents really has to be taken as red for our purposes first of all article 22 as I've said permits a person to choose the law to govern his succession as a whole the law of his nationality when we're looking at the cases which are more difficult to judge if they're within or without the reach of Rome 4 we want to look at some portraits people who have made a choice of governing law and some of whom have not done so and we'll start with that lesser case because I think they're more straightforward if we take the example of Guillaume let's say Guillaume's a French national he's habitually resident in France he's domicile there at least in the scolts view he's got property both movable and immovable in France and heritable and movable in Scotland now if we assume an anchor jurisdiction if you permit us that term in France then in the view of the French forum Rome 4 will apply the consequence will be that all property belonging to Guillaume including that situated in Scotland will be distributed according to French law by the unitary rule the Scottish lexitas in the French view would not apply to heritable property situated in Scotland now whatever might be the aspiration of recital 37 of the instrument a court in Scotland if seized on Cetus principle would distribute property situated there according to its own bifurcated decisionist rule so that would identify the lexic secyonus in respect of immovables to be the Scottish lexitas at least as far as the heritable property in Scotland is concerned with regard to movables the lexic secyonus in the scolts view would be the ultimate domicile of the deceased as determined by the scolts court to the French court applying rule 4 domicile is entirely irrelevant but the best that really can be hoped for here is that the scolts court on these facts would hold the deceased to be domiciled in France giving us at least some consensus as to result between France and Scotland as to the movable estate if we take the converse situation still we don't have any choice of law under article 22 but if we say for this purpose that Nevin the UK national habitually resident in Scotland domiciled there in the scolts view so his connection is with the non-compliant member state but he's got property in France as well as in Scotland now this type of character is increasingly common as we've got UK citizens buying their second homes in the sun now if we assume in this case an anchor jurisdiction in Scotland the scolts court would seek to dispose of the heritable property in Scotland according to the lexetus and the movable scott the movable property in Scotland according to the last domicile of Nevin which in our view is likely to be scott in the scolts view therefore French law would govern the devolution of immovable property in France and the scots domicile at death would regulate the distribution of movable property in France but if we view the case through the lens of Rome 4 the French expectation probably would be that the scolts court would have jurisdiction and that the scolts law as the last habitual residence would apply to the devolution of all property wherever it was situated now you might say well in Nevin's case can we turn to article 10 of the instrument on subsidiary jurisdiction but if you look at the terms of that it would not be satisfied because of the connections with Britain article 10 2 might be activated conferring on the French court of the Cetus jurisdiction to rule on assets there but by contrast with article 10 1 article 10 2 is restricted to assets located in the territorial bounds of the forum in principle the French court would want to distribute Nevin's immovable property in France according to his scolts habitual residence at death now that might lead us into the application of Rome 4 which could be useful in this particular situation and we don't have time to go through other characters Nevin and Giel both in these cases had their habitual residence and nationality in the same state if you take another couple of characters you can look at them later if you're interested in this where you have habitual residence in one country and nationality in the other then the question of the applicability of Rome 4 becomes increasingly complicated as an interim comment what i would say is that these scenarios are not atypical they demonstrate how the ambitions of the regulation are likely to be frustrated by the existence of property especially immovable property which is situated in a non-compliant member state but belonging to a individual who died habitually resident in a complying member state we'll move now to cases very briefly where a choice of law has been exercised by the deceased party this is an interesting matter of interpretation of the regulation who is able to exercise choice per article 22 can anybody play it is established per article 20 that the law of any nationality may be chosen so having thought about this for some time we conclude that the constituency of electors is not limited there would be a temporal difficulty if the constituency of electors were limited to people who could be proved by each law and in which court to be habitually resident at death or at the choice with a compliant member state it could be that one could be led into lots of difficulties a person who is habitually resident at choice might not be habitually resident at death in a compliant member state could his choice be invalidated it looks to us as if the choice as i say the constituency of electors is not limited and that's strange because it might mean that a person could choose a law which in its own private international law does not allow a party autonomy in the matter of choice of law on death as indeed is the case with the conflict rules of scotland and england so that is an interesting matter to ponder and actually if we're right in this party choice might be used as an escape route to avoid the application of what might be feared to be the applicable law for habitual residence at death so we have two to go through quickly for you allister now here we have somebody who is a british citizen a state principally in scotland owning a holiday home in portugal if he elects to have the law of his nationality apply of death he hopes to guard against the possibility that he might be thought to be habitually resident in portugal at death and he wishes to do a little bit of forward planning and if scots law is the anchor jurisdiction how would it deal with the choice of this kind would it allow allister to supply portuguese law parlexitas to the devolution of his house in the sun portuguese law probably not be bothered about this choice by allister but scots law might be and it could be that a scots court could get around this by applying portuguese law in the round including including therefore rome 4 and bring it back to portugal um this seems really rather complicated but i suppose might be possible christian to finish with now here we have somebody of german nationality in domicile habitually resident in scotland dying owning heritable movable estate partly in the uk and partly in germany electing by will to have german law govern the succession so germany would be the anchor jurisdiction um a scots court would be likely to be engaged the scots and german courts by different reasoning would agree that german law would govern the succession to christian's property heritable movable movable i movable i should say in germany and his movables in scotland but the conflict which would result arises in relation to the immovable property in scotland which christian wishes to have german law govern and so a scots court would have to consider what it felt about this and it is strange that it's another subtle problem that we haven't entered into this but yet we may be confronted with problems of this kind and a pragmatist would think that it was not inappropriate that german law should apply to the distribution of scotish heritable property but it is unprecedented and it would require acquiescence by the scots court in this outcome now to our conclusion we feel that the continued existence of the system principle in the applicable law rules of non-compliant states is awkward there does seem to be some support in the uk for a unitary rule of choice of law on death um as to property um but as long as the decision rule remains it is a stumbling block to achieving harm and cross border discretion uh successions and the smooth operation of room four second uh the introduction of a measure of party autonomy is noble to us and it does seem that british courts might have to address the question of whether they're going to accept this expression or not thirdly uh we simply don't know what's going to happen to the um enforcement provisions which have been so carefully laid out in the regulation uh it seems that they would apply within the net of compliant countries obviously but again we're it's awkward when you consider uh the united kingdom and ireland and what's going to be done is practicality uh going to win now i have two things to say at the end which um i hope may spark some thoughts we've had a lot of interest and enjoyment thinking about these matters but it is legitimate to ask how many contentious successions will present how far these difficulties will arise you have to keep matters in proportion uh domestically the number of contentious successions is small and cross border ones smaller still uh such disputes has arise may not be litigated they may have an outcome through mediation or negotiation we shouldn't exaggerate the dangers uh but it does seem to us that paradoxically Rome 4 which is supposed to be an improvement may in fact create more difficulties in the united kingdom core it reckon uh the other point is that progress in private international law harmonisation is lopsided if we don't move as one and we're saying that we are not shielded from its operation in the united kingdom because we have not opted in but the other thing is but our declining for our own good reasons i think not often has the capacity to undermine the operation of the regulation in its legitimate ambit and uh we we have to wait to see how practicality convenience and comedy and acquiescence and matters of this kind operate when these cases come to court thank you very much um i everyone said they agree with those conclusions um uh except that 500 tempted to say that we should exaggerate uh the problems that we may arrive that may arise uh i entirely agree succession is a subject that mostly is not contentious but from an estate planning point of view anybody who has any property in any jurisdiction outside the UK ignores this regulation that they're power and trying to buy their uh a uniform answer to the devolution their estate seems to me to have got and the more complex with the advent of this regulation but thank you very much um for that and we move on to our final speaker uh in uh this session and i'm delighted to welcome Professor Koji Takahashi from Doegisho University North School in Japan because Koji is a member of the board and a full colleague and friend from the University of Birmingham many years ago so it's a great pleasure to have you here i was looking uh on the programme about what you were going to be talking about and i see it says jurisdiction and twist of law questions are rising in the process of unmasking anonymous full stop um so uh that sounded very uh very secretive um but um um demo to your abstract and it says jurisdiction to grab orders for the disclosure of information necessary to identify the online impringes of personality rights or intellectual property rights and that seems to be uh a very clear and interesting question although i have no idea what the answer is so over to you thank you for your introduction um i'm very pleased and honoured to be speaking here well the title on the programme was actually truncated so it's uh it actually sounds more mysterious and intriguing than my full title which is jurisdiction uh it too was added to that uh anonymous online authors well um well still it's an odd one out in this uh session on natural person uh it has not much to do with a natural person uh there are many legal persons operating in this uh topic um i i suppose it's the topic is so unconventional uh that the organisers had a hard time fitting in to any case well um so unconventional unconventional but uh it's a practical significance uh cannot be underestimated um i will deal with this uh scenario when a defamatory content has been posted on a website uh that's represented on arrow number one on the illustration uh the injured person may wish to seek injunction or damages against the author uh number four on the arrow but uh if the author has acted anonymously or pseudonymously the injured person will first have to unmask him or her by demanding the internet service providers uh disclosure of some information information enabling the identification of the anonymous author uh more specifically um first it may be necessary to ask the host of the server or website uh to reveal the internet protocol address ip address used and timestamps uh that's represented number two over there uh once those details have been obtained then uh the internet access provider may be asked to reveal the name of the subscriber the idea being that the subscriber is the likely author uh the arrow number three represents that uh this presentation will consider jurisdiction and choice of law questions uh which could arise in this process uh the consideration of those questions should take into account the respective interests of the stakeholders involved in this scenario firstly the injured person has interest in obtaining access to justice to vindicate his personality rights the author on the other hand has interest in maintaining his or her anonymity thirdly the internet service providers do not have inherent interest in maintaining the author's anonymity their interest lies rather in avoiding liability towards the author for breach of duties of confidentiality the duties resting on contract with the author or on any applicable statute or common law the internet service providers may be exempted from this liability if they obey disclosure orders of course we will now examine different approaches to unmasking anonymous authors as taken in japan france united states and england under japanese law the legal base of disclosure order is a statutory right against the internet service providers the relevant provisions essentially say disclosure may be demanded if the alleged infringement has clearly taken place and there is a justifiable reason for obtaining the disclosure as in the case where information sought is necessary to claim damages from the author as a substantive right it may be asserted in and outside courts however as a substantive right this right may be asserted only where japanese law is applicable under the japanese choice of law rules the claim based on this right is characterized as taught or generally assumed to be so by inventories but the taught characterization is somewhat awkward uh since the claim is not for pursuing taught liability of the internet service providers rather it is only a preliminary step to claiming the author's cautious liability i would prefer to see the statutory right as emanating from an overriding mandatory provision rule of the forum moving on to the question of jurisdiction in a case where interim relief was granted to order twitter in a california company to disclose the ip address and timestamps of anonymous tweets the tokyo district court relied on what is known as the japanese version of doing business jurisdiction the japanese version of doing business jurisdiction is more restrictive than the traditional us version in the sense that the action has to relate to the defendant's business contact with japan so it's a specific base of jurisdiction rather than general jurisdiction it is nonetheless a broad jurisdiction as it does not prescribe the method of doing business so it is capable of capturing defendants who have no fixed place of business in japan but conduct business in japan by means of internet from outside japan twitter inc a california company comes within this jurisdiction because it conducts business in japan by providing its online service to japanese residents in japanese language this jurisdiction of ground has been relied upon in suits against other internet foreign internet service providers such as facebook as well without this head of jurisdiction it would have been difficult to find jurisdiction of grounds in suits against such companies since the claim for this cloud closure is based upon special statutory right the jurisdiction rule for tort cannot be relied upon while the doing business jurisdiction is available irrespective of the legal nature of the claim moving on to france in french law disclosure orders may be based on the provision in the trust in digital economy act obviously it's my english translation of the app name uh promogated in 2004 art or six to reads the internet service providers hold and retain the information enabling the identification of any person who has contributed to the creation of the concept content of services of which they are providers the judiciary authority may require the internet service providers to disclose the information mentioned in the first paragraph to obtain disclosure another possibility is to rely on a general rule of civil procedure article 145 of the code of civil procedure reads if there is a legitimate reason to preserve or establish prior to any legal process the evidence of the facts upon which the resolution of the dispute depends preparatory inquiries may be ordered the application of those rules became an issue in a recent case seeking disclosure from again twitter in this case twitter Inc a california company did not dispute the french jurisdiction but it did contest that it was subject to the obligation to retain information under the french trust in digital economy act arguing that it was doing no more than required by the law of california twitter also disputed that the provisions of this act were overriding mandatory citing those arguments but without giving them full consideration the court simply stated that it was not apparent that article 62 of the act was applicable in the present case the court instead relied on article 145 of the code of civil procedure the second one to order disclosure again simply observing that it was applicable in international cases the commentaries on the case commonly regret that the court didn't clarify the circumstances in which article 62 of the trust in digital economy act would be applicable to foreign internet service providers as regards article 145 of the code of civil procedure one commentator has argued that its application would have been better justified on the basis that the french court had jurisdiction in the case france being the place of injury since the offending tweets written in french had been received in france it seems to me that since the rule of article 145 is procedural it is applicable as forming part of the legs for right the law of the forum and no further choice of law question would arise on the other hand it would be necessary that the french courts have jurisdiction in the case in the absence of jurisdictional grounds similar to the japanese version of doing business jurisdiction the jurisdiction rule for thought might be the only possible ground however awkward that may be moving to the us the approach in the united states is very different from those in japan and france in the united states the anonymous author may be sued in the name of john dole and then a discovery order called dough a dough subpoena may be issued to the internet service providers to unmask john doll as it is a procedural order it gives rise to no choice of law question the debate is focused on jurisdiction and jurisdiction over john doll rather than jurisdiction over internet service providers this can be contrasted with the japanese debate since there is no uniformity in detail rings in within the united states in this paper i will examine a few recent interesting cases just last year the texas supreme court considered whether the court must have personal jurisdiction over the author uh the defendant john doll a petition was filed requesting non-party google to disclose the identity of a pseudonymous blogger under rule two or two of the texas rules of civil procedure which allows a proper court to authorize a deposition to investigate a potential claim it's a broad power the notice was sent to the blog email address by the way as in this case the internet service providers often notify the anonymous author that disclosure has been sought the blogger in this case filed a special appearance without revealing his identity asserting that his only contact with texas was that his blog could be read on internet there the supreme court held that the proper court must have personal jurisdiction over the potential defendant it recognized the burden on the plaintiff could be heavy where the potential defendants identity is was unknown but the court refused to interpret the rule to make texas the world's inspector general on the fact of the case the supreme court declined denied jurisdiction there is however a recent california case where personal jurisdiction over an anonymous author was upheld in this case third party discovery was initiated against wordpress.com a california company which hosted the offending log the court upheld personal jurisdiction over john doll the defendants because they had purposefully in the was a court purposefully availed themselves with the services of a company located in california this was notwithstanding that the plaintiffs were english local politicians and initiated the discovery in california to learn if their political rival in england was the author it cannot however be assumed that the courts of the home country home state of the internet service providers will invariably uphold jurisdiction over anonymous authors in one not so recent case the virginia circuit court washed a subpoena against america online a virginia company holding that the minimum contacts requirements were not satisfied since the effects of the defamatory posting were felt more in pennsylvania moving to england in england the legal base for disclosure order is the norwich farmacle order in the leading case decided in 1970s which was unrelated to online defamation the house of laws held if through no fault of his own a person gets mixed up in the tortious acts of others so as to facilitate their wrongdoing he may incur no personal liability but he comes under duty to assist the person who has been wronged by giving him full information and disclosing the identity of the wrongdoers norwich farmacle order is a procedural order and therefore raises no choice of law question unlike in the united states where jurisdiction over the anonymous author john dole is discussed questions of jurisdiction over internet service providers featured in a few english cases in one such case norwich farmacle order was sought against the defendants us companies who hosted the websites publishing defamatory statements the claimant applied for permission to serve the claim for out of the jurisdiction on the ground as provided by the civil's procedure rules that a claim is made for an injunction ordering the defendants to do an act within the jurisdiction namely in this case disclose the information sought in england the court granted permission without discussing the question of jurisdiction it is to be wondered how the respective interests of the stakeholders would be weighed in the forum convenience inquiry to recap under japanese law and presumably also the french trust in digital economy act a disclosure order is based upon a substantive right accordingly both choice of law questions and jurisdictional questions arise one one of such questions is whether the rules for tort are available in the united states england and france a procedural disclosure order procedural order is available as such it is subject to the legs for right and no choice of law questions arise on the other hand jurisdictional questions do arise in the united states debate is focused on jurisdiction over suit against the anonymous author on anonymous online where as in england jurisdiction over suit against the internet service provider providers featured in a few cases either way the jurisdictional analysis is not straightforward amongst the various approaches represented in this survey i would prefer the us approach since the anonymous author has a greater stake in the case than the internet service providers and the internet service providers cannot be expected to adequately represent the interests of the anonymous author thank you for your attention