Posts Tagged Sharia
On the nature of private international law. Applying islamic law in the European Court of Human Rights.
Anyone planning a conflict of laws course in the next term might well consider the succinct Council of Europe report on the application of islamic law in the context of the European Convention on Human Rights – particularly the case-law of the Court. It discusses ia kafala, recognition of marriage, minimum age to marry, and the attitude towards Shari’a as a legal and political system.
Needless to say, ordre public features, as does the foundation of conflict of laws: respect for each others’ cultures.
AB v EM  EWHC 549 (Fam) concerns for a large part the application of Brussels IIa’s traditional jurisdictional rules (habitual residence etc.) and I shall not comment on those.
Of interest to the blog are, first, at 37 ff the application of the Regulation’s forum non conveniens rules: in that respect, compare with my posts on V v M and W v L. Further, the question whether the order made by the Sunnite Sharia Court of Beirut on 6 February 2019 in proceedings commenced by the mother in Lebanon in November 2018, incorporating and approving an agreement between the parties to these proceedings regarding custody and access with respect to M, capable of recognition in the UK and, if so, what impact should this have on the UK courts’ welfare determination? The 2019 agreement established that the father would have custody of M and would reside with M in either the United Kingdom, Egypt or some other location of his choosing.
MacDonald J at 71-73, having referred to the spirit of comity, does not hold on what at 73 are briefly refered to as ‘wider criticisms’ of the February 2019 Order, or the allegations of durress in the coming to be of that order. He notes more as a matter of fact that circumstances in the child’s welfare have changed since the Order, and that the father did not at any rate honour elements of the agreement which the Order had confirmed.
No grand statement of principle, therefore. Rather, a measured practical approach.
Akhter v Khan. Nikah (Islamic Marriage) in the Court of Appeal, reversing earlier finding of nullity (as opposed to absence of marriage).
 EWCA Civ 122 deals upon appeal with the judgment of Williams J in  EWFC 54 Akhter v Khan which I reviewed at the time here – readers may want to read that post before considering current one. Of note is that applicable law is firmly English law, the judgment is not really one in the conflict of laws.
Williams J had declared the marriage at issue void under the Matrimonial Causes Act 1973, the wife was granted a decree of nullity. This has extremely relevant consequences in terms of ‘matrimonial’ property, and maintenance obligations, including those vis-a-vis the children: non-marriage creates no separate legal rights while a decree of nullity entitles a party to apply for financial remedy orders under the 1973 Act.
Williams J’s judgment was reversed: at 106, following review of ECHR authority: ‘i) Whilst the Petitioner’s Article 8 right to respect to family life is undoubtedly engaged, the failure of the state to recognise the Nikah as a legal marriage is not in breach of those rights; ii) The right or otherwise to the grant of a decree of nullity does not in itself engage Article 8; the fact that at the time of the Nikah ceremony both parties knew that in order to contract a legal marriage they had to go through a civil ceremony, and intended to do so, does not undermine either of those conclusions or permit reliance on Article 8 as a means to allow a flexible interpretation of s. 11 of the 1973 Act.’
With respect to the impact of the children’s interests on this finding, at 111: ‘In our view the decision before the court cannot properly be described as an action concerning children and we cannot see how it can be said that the best interests of a child can turn what was neither a void nor valid marriage, into a void or valid marriage. In our judgment, the action in question relates solely to the status of the adult applicant.’
The Court of Appeal found therefore that the interests of children can play no part in a determination as to whether a ceremony is a non-qualifying ceremony or is a void marriage, and that neither ECHR or UNCHR can make a difference in this respect (at 119); whilst there is inevitably a tangential impact upon a child dependent upon the status of his or her parents’ relationship, an application brought before the court made in order to establish the status of that relationship cannot properly be regarded as an “action concerning children” (at 118).
As Williams J notes at 5,  EWFC 54 Akhter v Khan is not about
‘whether an Islamic marriage ceremony (a Nikah) should be treated as creating a valid marriage in English law. In fact, the main issue as it has emerged is almost diametrically the opposite of that question; namely whether a Nikah marriage ceremony creates an invalid or void marriage in English law. To the average non-lawyer in 2018, it may appear an easy question to answer. Surely a marriage which is not a valid marriage is a void marriage and thus can be annulled? Regrettably it is not that simple.‘
The Guardian explain here why it is not that simple, and Ralf Michaels has analysis here. In essence (the remainder of this para is largely based on Ralf’s text), many muslims in the UK only perform Nikah and not a civil ceremony. The latter is firmly required under English law (indeed under the law of many European countries; where unlike in the English example, a religious ceremony must not even double up as a civil one, and the latter must always precede the religious one). Nikah hitherto had been considered a non-marriage which the law could ignore, because it did not even purport to comply with the requirements of English law. The High Court was unwilling to presume the lived marriage as valid.
Williams J however declared the marriage at issue void under the Matrimonial Causes Act 1973. The wife was granted a decree of nullity. This has extremely relevant consequences in terms of ‘matrimonial’ property, and maintenance obligations, including those vis-a-vis the children. The Court’s analysis of human rights law is extensive, including of course with the ECHR gateway (via the Human Rights Act 1998) and the UNRC: the UN Convention on the Right of the Child. In this respect Williams J’s analysis is not unlike that of classic ordre public considerations: which are always case-specific and take into account the hardship caused to the individuals involved, were a foreign legal concept not recognised in the forum.
The Court has set an important precedent – but like all precedent of course there is case-specificity (the length of the lived marriage, the children,…
Of note is that applicable law in the case was firmly English law. Recognition of the marriage as such in the UAE did play a role in the judge’s assessment.
All in all an important case viz the discussion on multiculturality and family law in Europe.
Thank you Michael Wise for alerting me to  NSWSC 1759 Live Group v Rabbi Ulman in which Sackar J at the NSW Supreme Court displays both sensitivity and adroitness in addressing the relationship between a Beth Din (a Jewish court) and the courts in ordinary.
The case I imagine will be of interest for those studying church /religion and state relations. It would seem to conclude that a Beth Din (or equivalents in other faiths) threat to impose religious sanctions on an unwilling party, will be considered contempt of the courts in ordinary and thus a no-go zone. However that as such the State courts should not hesitate to support arbitration through religious courts by compelling those who agreed to it in commercial relations, to submit to it. (Sackar J does highlight features of the particular case as not meeting natural justice requirements).
I reviewed the AG’s Opinion in Case C-372/16 here. The Court held late December. Like the AG, it held that Rome III does not cover divorces which are declared without a constitutive decision of a court or other public authority: it squarely uses the Regulation itself to come to this view, without any assessment of whether the foreign State’s courts in private sharia divorces, has any impact on that conclusion.
With the first question answered in the negative, the other, very interesting issues covered by AG, became without subject. A judgment not with a bang, but with a whimper.
Dana Gas v Deutsche Bank et al. Islamic financing. Interest v usury (riba). Depecage, von Munchausen and overriding mandatory law. Partial unenforceability. All in the face of anti-suit.
Update 14 June 2020 for a recent consideration of the Foster v Driscoll principle, discussed below, see Colt Technology Services v SG Global Group SRL  EWHC 1417 (Ch).
In  EWHC 2928 (Comm) Dana Gas v Deutsche Bank et al., Leggatt J treats his readers to a concise insight into islamic finance (particularly in para 10) which he needs to do to inform readers of the essence of the case. The operation essentially involves raising investment (with a view to restructuring), organised by the main agreement (of the ‘Mudarabah’ type), subject to UAE law, and supported by a purchase undertaking of the same date, subject to English law. The set-up therefore evidently is not one of dépeçage per se (this would require one and the same agreement being subject to different laws) however it comes close.
Inevitably following unfavourable market conditions, an anti-suit injunction was sought and obtained in the UAE, followed however by English proceedings which required the aint-suit to be lifted – something which Dana Gas did not succeed in as a result of shareholder opposition. The English proceedings were effectively saved from collapse by the involvement of a third party, BlackRock, who as a non-party to the UAE sharia proceedings, were not bound by the anti-suit injunction. The somewhat complicated result is that the English proceedings really can only limp along.
Dana Gas seek confirmation that the transaction is unlawful and all the relevant contractual obligations are unenforceable as a matter of UAE law. Leggatt J with neither emotion nor hesitation refers essentially to Rome I’s universal application: the Mudarabah agreement is subject to UAE law and he is happy to assume it is invalid under UAE law – hence not enforceable by an English court. See in this respect Article 10(1) Rome I.
That however leaves the viability of the purchase undertaking. (at 46) The fact in and of itself that the contract or its performance would be regarded as invalid or unlawful under the law of some other country than England (for example, a country where one of the parties is domiciled or carries on business) is generally speaking irrelevant (reference is made to Kleinwort, Sons & Co v Ungarische Baumwolle Industrie AG  2 KB 678.
At 48, Dana Gas sets out its case for unenforceability of the purchase agreement under English law. This includes reference to ordre public but also inevitably an attempt to ‘contaminate’ the purchase agreement with the Mudarabah agreement. Leggatt J justifiably turns this around: at 54: it is apparent from the purchase agreement’s terms that the risks against which the Purchase Undertaking is intended to protect the Certificateholders include the risk that the mudarabah and the transaction documents governed by UAE law will turn out to be invalid. That is why they needed to be separated. (In that respect merging the two agreements into one and applying dépeçage might give even stronger force to this argument: however I do not know whether under UAE law such construction would be acceptable).
Further arguments swept aside, the Court turns to ordre public.
Dana Gas nb had employed both ordre public and, earlier Article 9(3) Rome I: overriding mandatory law: a rare treat indeed. Relevant English precedent is Ralli Brothers: Ralli Brothers v Cia Naviera Sota y Aznar  1 KB 614: an English court will not enforce an obligation which requires a party to do something which is unlawful by the law of the country in which the act has to be done. Rome’s Article 9(3) operates in a similar context. However Dana Gas later abandoned that claim for (at 80) those rules of law are only applicable if and in so far as the obligations in question have to be performed in the UAE – quod non.
A switch was then made to ordre public, now with Foster v Driscoll  1 KB 470 as leading precedent. However, here too, it is only if a contract has as its object and intention the performance in a friendly foreign country of an act which is illegal under the law of that country that the contract will be considered (at 82 in fine) contrary to English public policy.
Conclusion: the Purchase Undertaking is valid and enforceable.
Without claiming anything near proper competence in Islamic finance law, it would seem that Dana Gas does not introduce new principles in that area. However in diligently applying conflicts analysis, Leggatt J in my view does practice a great service: he re-emphasises the need for parties clearly to identify locus implementi: the place of performance of an obligation. When obligations are marked out for a seperate lex causae, such clear identification of place of performance will insulate them from collapse.
(Handbook) of Private International Law, 2nd ed. 2016: essentially, almost every section of Chapters 2 and 3.
In Case C-372/16 Sahyouni Saugmandsgaard ØE Opined Friday last (Opinion not yet available in EN at the time of writing of this post; the curia press release on the case helps). The case concerns the scope of application of Rome III, Regulation 1259/2010 (on enhanced co-operation Regulation on divorce and legal separation), as well as the application of its Article 10. This Article inserts the lex fori for the lex causae, where the lex causae as identified by the Regulation makes no provision for divorce or does not grant one of the spouses equal access to divorce or legal separation on grounds of their sex.
In the previous Sahyouni Case C‑281/15, the request was considered inadmissible for lack of factual beef to the bone to allow the Court to apply its Dzodzi case-law (Joined Cases C‑297/88 and C‑197/89). In that case, the Court had held that the authors of the Treaty did not intend to exclude from the jurisdiction of the Court requests for a preliminary ruling on a provision of EU law in the specific case where the national law of a Member State refers to the content of that provision in order to determine rules applicable to a situation which is purely internal to that State and that, on the contrary, it is manifestly in the interest of the EU legal order that, in order to forestall future differences of interpretation, every provision of EU law should be given a uniform interpretation irrespective of the circumstances in which it is to be applied.
In the case at hand, Rome III is not generally applicable to decisions on divorce and legal separation issued by the authorities of third States. German residual private international law on the matter, however, makes it so applicable.
Saugmandsgaard ØE first of all opines that the national court now does give the CJEU enough information for it to rule on the case. Contrary to what the German legislature assumed, however, the AG suggests Rome III does not cover divorces which are declared without a constitutive decision of a court or other public authority, such as a divorce resulting from the unilateral declaration of a spouse which is registered by a religious court. Note that the AG for this purpose employs lex fori in the sense of EU law (the Regulation and its preparatory works), to determine whether such divorce is ‘private’ or not; not as might be considered an alternative in the case at hand, Syrian law. Those of us with an interest in Vorfrage may find this interesting.
Next, the AG does complete the analysis should the Court disagree with his view on scope of application. The question whether access to divorce provided for by the foreign law is discriminatory (this is the test of the aforementioned Article 10) must, in the view of the AG, be assessed in the abstract, and not specifically in the light of the circumstances of the case. Therefore, it suffices that the applicable foreign law be discriminatory by virtue of its content for it to be disapplied.
The AG suggests that the EU legislature considered that the discrimination at issue, namely that based on the sex of the spouse, is so serious as to warrant unqualified rejection, without the possibility of exception on a case-by-case basis, of the entirety of the law which should have been applied in the absence of such discrimination. This interpretation differs from the standard application of another well-known mechanism, that of ordre public, where any assessment needs to be based on a case-by-case basis. (Note prof Mathias Rohe’s disagreement on this point here).
Finally, the AG examines whether the fact that the spouse discriminated against possibly consented to the divorce allows the national court not to disapply the foreign law despite its discriminatory nature, and therefore to apply that law. He suggests that question be answered in the negative. The rule set out in Article 10 of the ‘Rome III’ Regulation, which is based on compliance with values considered to be fundamental, is mandatory in nature and therefore, as a result of the intention of the EU legislature, does not fall within the sphere in which the persons at issue can freely waive the protection of their rights.
A judgment to look out for.