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1、英文案例:1. 案例反致RENVOIDenney v. Denney ( Royde-Smith )TS Sala 1 : 21 May 1999Application of a renvoi of return in a matter of succession1. Appeal allowed - City of Toulouse only trustees or donees of Art Collection After considering the evidence submitted on ownership of the collection of Modern Art in
2、Toulouse, the Supreme Court concluded that the City either held the collection as trustees, because the predecessor in title had handed it over in that condition, or as donees, on the basis of accepting the donation made by the testamentary heir. The Court allowed the grounds of the appeal against t
3、he ruling of the Provincial Court of Appeal, because the conditions that would require the City of Toulouse to be called to the case were not present. ( See full judgment Legal Grounds 3 2. Renvoi can only be applied under limited conditions In considering the question of which material law should a
4、pply to the succession of the deceased. a purely literal application of Article 12.2 of the Civil Code would lead to the solution argued in the claim. However current developments of International Private Law involve a very precise treatment of renvoi in which it is not accepted or rejected indiscri
5、minately, but is applied flexibly and subject to conditions and limitations. (See full judgment Legal Grounds 4 ) 3. Claim by Denney Children rejected on four grounds The claim was rejected and the ruling of First Instance was revoked on four grounds. Firstly, that the application of renvoi in this
6、case would be contrary to the principle of unity of succession; secondly, it would make unenforceable the guiding principle of English Law of freedom to testate; thirdly, that it would not lead to a harmony of solutions; and fourthly, that it would not produce greater justice for those involved. (Se
7、e full judgment Legal Grounds 4) 4. Earlier ruling by Provincial Appeal Court on costs overturnedThe order of the Provincial Appeal Court in Badajoz, ordering the costs at first instance and of the appeal to be paid by the Denney children, was overturned. Because of the legal complexity of the litig
8、ious matter, the doctrinal attitudes involved, including the legal precedents of the English Courts and the Supreme Courts lack of case law on the subject, no special orders for costs were made regarding costs for the first instance, the appeal claim or the appeal before the Supreme Court. (See judg
9、ment Legal Grounds 5.) 2. 案例(非方便法院)Forum Non Conveniens in Florida By Daniel T Doyle of Rumberger, Kirk & Caldwell PA Kinney System, Inc. v. The Continental Insurance Co.Case No. 84-329 (Florida, January 25, 1996) In Kinney System, Inc. v. The Continental Insurance Co., the Supreme Court of Florida
10、addressed the issue of forum non conveniens. Simply put, forum non conveniens determines whether Florida is the convenient forum to hear the case at issue. The Court reviewed the following certified question: Is a trial court precluded from dismissing an action on the basis of forum non conveniens w
11、here one of the parties is a foreign corporation that: (a) is doing business in Florida; (b) is registered to do business in Florida; (c) has its principal place of business in Florida. Id. The Supreme Court answered the question in the negative. That is, courts can transfer a case if certain requir
12、ements are met. This decision may have a dramatic impact on international cases and those claims where a substantial amount of the acts that form a basis for the claim occurred outside of Florida. Previously, where a corporation had its principal place of business, or in some cases where the corpora
13、tion was licensed to do business (as in Florida), the case could not be dismissed on forum non conveniens grounds. Thus, the mere fact that a corporation had its principal place of business in Florida was enough to prevent the case from being dismissed even though the injury and the accident occurre
14、d outside of Florida. In the Kinney case, Continental Insurance Company had a contract negotiated in New York to cover Kinneys employees in a variety of different states, including Florida. Continental is a New Hampshire corporation with principal place of business in New Jersey. Kinney is a Delawar
15、e corporation with its headquarters in New York. Continental however, was registered to do business in Florida and operates a Ft. Lauderdale claims office. Kinney has a regional office and operates parking garages in Dade County, Florida. Based on these Florida connections, Continental sued Kinney i
16、n Florida Circuit Court. The trial court dismissed based on the doctrine of forum non conveniens doctrine. The Fourth District Court of Appeal reversed the trial court claiming that where a corporate party is licensed to do business in Florida with a place of business in Florida, forum non convenien
17、s is not applicable. The Supreme Court of Florida reversed the long standing decision of Houston v. Caldwell, 359 So. 2d 858 (Fla. 1978) and adopted the more practical standard applied in federal cases. The Court in analyzing the decision applies the federal forum non conveniens doctrine in the foll
18、owing manner: As a prerequisite, the court must establish that an adequate alternative forum exists which possesses jurisdiction over the whole case. Next, the Court must consider all relevant private interest factors, weighing in the balance a strong presumption against disturbing plaintiffs initia
19、l forum choice. If the Court finds that the balance of private interests is it must then determine whether public interest factors tip the balance in favor of a trial in another forum. If the Court decides that the balance favors another forum, it must finally insure that plaintiffs can reinstate th
20、eir suit in the alternative forum without undue convenience or prejudice. Essentially, the court will determine whether the corporation is amenable to process in the alternative forum, and whether the alternative forum offers an adequate remedy. Importantly, whether there is a less generous award av
21、ailable in an alternate jurisdiction is not a factor to be weighed by the court. Additionally, the courts will look at adequate access to evidence and relevant sites, adequate access to witnesses, adequate enforcement of judgments and the practicalities and expenses associated with litigation in the
22、 alternative forum. If the advantages and disadvantages of the alternative forum will not significantly undermine the private interests of any particular party, the court can look at the public interests including expenses, and the protection of dockets within the jurisdiction. Finally, so long as t
23、he foreign forum does provide a remedy, forum non conveniens can be utilized to transfer the case to that forum. Although defendants can move to have the case dismissed such that it is refiled in a new jurisdiction, the parties stipulate automatically to two things: That the action will be treated i
24、n the new forum as though it had been filed in the forum on the date it was filed in Florida, with service of process accepted as of that date; and That the plaintiff will lose the benefit of all stipulations made by the defendant if it fails to file the action in the new forum within 120 days after
25、 the date of the Florida dismissal becomes final. In summation, the impact of the Kinney decision is dramatic. Specifically, it will allow defendants who have already existing cases to potentially have those cases transferred to a jurisdiction which may benefit the plaintiff. For example, those juri
26、sdictions where punitive damages, and/or damages for pain and suffering, are capped. Additionally, the jurisdictions may have less generous awards than Florida. Conversely, it may force defendants to have cases brought in territories where (a) they do not have retained trial counsel and (b) where th
27、e jurisdiction is more plaintiff friendly. It is unclear as to whether all the defendants in a case must join the motion. In any event, defendants should start to scrutinize cases more closely to determine the proper forum for the cases to be tried and whether they wish to transfer to another forum
28、if available. Child Custody Jurisdiction By Oddenino & Gaule How to Decide Which Court DecidesIntroductionThe Uniform Child Custody Jurisdiction Act (UCCJA) and the Parental Kidnapping Prevention Act (PKPA) are legislative responses to the child custody jurisdiction problem. The Hague Convention on
29、the Civil Aspects of International Child Abduction is the international response. The UCCJA began as a model act which became virtually universal state law. The PKPA, on the other hand, is federal law. The UCCJA creates a two-prong approach to determining which court decides a custody case. First, a
30、 general class of jurisdiction is established for custody cases. Second, the law provides a mechanism intended to vest the right to exercise jurisdiction in only one state at any given time. The UCCJA and the PKPA supersede all conflicting or contradictory laws. The UCCJA, the PKPA, and the Hague Co
31、nvention apply only to those who have a right to custody. The UCCJA and the PKPA each prescribes four bases for jurisdiction: (1) home state; (2) significant connection, plus evidence regarding the best interests of the child; (3) emergency; and (4) default jurisdiction (no other state has jurisdict
32、ion or has declined it). The bases may overlap, so concurrent jurisdiction is common and conflicts of jurisdiction often occur. For example, the home state may not be the same state as the one in which the parties have significant connections and where there is substantial evidence about the childs
33、best interests. The UCCJA, the PKPA, and the Hague Convention on Child Abduction are all designed to prevent child abduction as well as providing a mechanism for determining which court has the right to decide a custody case. These laws address the problems arising when one parent breaches anothers
34、right to custody by removing the child from his home state or habitual residence and takes him to another jurisdiction, or when the parent retains the child in violation of anothers custodial rights or interests. The primary factor for determining if a state has jurisdiction to decide a custody case
35、 is the home state status, where it is assumed that one will find the maximum amount of evidence on the childs interests. The home state is the jurisdiction in which the child has lived with his or her legal custodian for at least six months or a state which was the home state within six months of f
36、iling. (For example, if a family lives in state A for one year, state A is the home state. If the same family lived in state A for one year and then one parent moved to state B with the children and filed in state B after living in state B for only four months, state A is still the home state). The
37、UCCJA also allows a state to exercise jurisdiction on the basis of the children having significant connections with that state. Thus, under the UCCJA, even though state A is the home state, state B might exercise initial jurisdiction on the basis of significant connections. The PKPA intended to elim
38、inate this possibility by making the home state the exclusive state to exercise initial jurisdiction notwithstanding that some other state had significant connections. This is a major distinction between the UCCJA and the PKPA. These laws are also designed to avoid forum shopping, jurisdictional com
39、petition, and duplicative litigation. They establish a scheme for determining which court among one or more state courts has jurisdiction, or, if more than one has jurisdiction, which should claim it. The UCCJA and the PKPA are also designed to facilitate and promote communication among courts which
40、 have or may have concurrent jurisdiction. They require all states to honor prior custody orders. A court that receives information on possible ongoing custody litigation in another state should communicate with the appropriate court in that state. The law actually calls for a judge in state A to co
41、mmunicate with a judge in state B. The Jurisdictional SchemeThe UCCJA provides subject matter jurisdiction and is the exclusive method of obtaining it in child custody cases. Subject matter jurisdiction is determined by statutory definition (e.g., certain length of residence) and may not be conferre
42、d by consent of the parties. Absence of subject matter jurisdiction may be raised by the trial court or the parties at any stage of the proceedings. The UCCJA establishes a system of concurrent and potentially conflicting jurisdiction. The bases for jurisdiction are hierarchical and continuing juris
43、diction always prevails. Home state jurisdiction predominates over significant connection jurisdiction. Emergency jurisdiction will trump either of those bases, but it is temporary. Finally, if no state has jurisdiction on the basis of UCCJA or PKPA rules, the state in which the child and a party ar
44、e domiciled may claim it. The law eliminates potentially endless procedural custody litigation by placing the bases of jurisdiction in the aforementioned descending preferential order and by providing for virtually exclusive continuing jurisdiction in the original decree state. In addition, to achie
45、ve fairness and cooperation, mechanisms for communication and for declining jurisdiction were included. Continuing JurisdictionOnce a court properly exercises jurisdiction in a child custody matter, that state is deemed the decree rendering state. For example, if state A were the home state and the
46、judge in state A conferred with the judge in state B where a parent filed after only four months claiming significant connections, and those judges determined that state A should exercise initial jurisdiction, state A would then have a hearing and render a custody decree. Assume one parent continues
47、 to reside in state A while the other parent resides in state B with the children pursuant to state As decree. Two years later the parent in state B wants to modify the custody or visitation schedule. What happens? State B is now the home state as the children have lived there for two years. State A
48、 is the decree rendering state as the initial and current order was rendered in state A. Only state A has the right to exercise jurisdiction even though state B has home state jurisdiction because state A enjoys the continuing jurisdiction of the decree rendering state. Thus, state B cannot properly
49、 exercise its jurisdiction unless state A specifically declines to exercise its continuing jurisdiction. Continuing Jurisdiction in the International ArenaThe dominance of continuing jurisdiction also applies to international cases where a custody order has been rendered under a law consistent with the UCCJA. For instance, a California decision decided by a California Family Court and affirmed