An arbitration question posed, and an initial response

September 20, 2016 Posted by:

Expatriate Law (a firm of English lawyers offering advice to expatriate separating couples in Dubai and indeed elsewhere in the Middle and Far East) has posed these arbitration questions via a series of Tweets:

‘Can a local court’s jurisdiction be prospectively ousted by arbitration agreement? Before separation can couple agree through arbitration “on separation, local court won’t apply but jurisdiction of UK will” even though child is habitually resident abroad. An important question to international arbitration cases….’

It is indeed an important question in that context. This is an individual and initial response, but you may have a different view which we hope you will ventilate in discussion within this blog, or via the FamilyArbitrator Linked-in discussion group

What is clear beyond doubt is that any IFLA qualified child arbitrator could and would in such a situation apply English law principles, exclusively, in reaching a determination.

AND REMEMBER: not every arbitral determination needs to be reflected in a court order, whatever the jurisdictions involved. If the parties honour their agreement to abide by the determination there is unlikely to be anything to prevent them just doing so, and acting accordingly. That solution would obviously not apply if one parent or the other resiles from their arbitration agreement commitment…

(A word of caution: very different jurisdictional considerations would apply if the foreign jurisdiction is an EU State, at least so long as the provisions of the Brussels IIA Regulation apply.)

  1. It must be primarily a question for the local court which would ordinarily have jurisdiction: whether or not it is prepared to make an order in terms of a determination (in a children case) by which the parties have agreed (via their arbitration agreement) they will abide. (If this question arose in England, then it is anticipated that the family judge would adopt the supportive response of the President in S v S [2014] EWHC 7 (Fam)).
  2. It would also be a question of foreign local law whether parents in such a situation  have any ‘choice of law’ option. If no such option exists, and the local opinion is that there may be problems in obtaining a consent order based on an arbitration determination, then the next question is whether an English Court would incorporate the determination in an order. 
  3. This must  depend on ordinary principles of jurisdiction based on habitual residence or presence of the child in England and Wales. 
  4. It would seem unlikely that the recent re-emergence of the nationality of a child (if a UK citizen) as a connecting factor would be sufficient in the ordinary case to found jurisdiction here: but this is perhaps one possibility in an extreme case where, for instance, the child’s safety would otherwise be at risk. See Re A (Jurisdiction: return of child) [2013] UKSC 60 and Re B (A child)(Habitual residence: inherent jurisdiction) [2016] UKSC 4.
  5. An additional question for consideration would be that in at least some countries where Sharia law applies the local judge might take the view that some detail of the proposals is contrary to Sharia principles, and therefore an order would not be made as to do so would be contrary to that territory’s concept of public policy.