New South Wales Court of Appeal - Decisions of Interest Search - Area of law: International law
Hague Convention on the Civil Aspects of International Child Abduction Article 3; two children born and raised in France brought to Scotland by their mother with consent of their French father; father remained in France; mother and children intended to stay for one year; relationship between father and mother ended; mother sought residence order in Scotland in respect of children; father argued that those proceedings were wrongful retention within meaning of the Convention as children were habitually resident in France; whether children habitually resident in France or Scotland; whether absence of shared parental intention to move permanently to Scotland an essential element in determining children’s habitual residence; habitual residence should be defined by stability of residence, rather than degree of permanence; no requirement that child resident in a country for a particular period of time; no requirement that one or both parents intend to reside in a country permanently or indefinitely; focus is on circumstances of the child, intention of parents is merely one relevant factor; degree of integration of child and family and social environment important factors; children were habitually resident in Scotland; absence of joint parental intention to reside in Scotland not decisive; appeal dismissed
AR v RN (Scotland)
 UKSC 35
employers’ liability insurance; asbestos and mesothelioma; whether employers’ liability insurance policies covered employers in respect of mesothelioma compensation claims; whether employers’ liability insurer’s liability partial or full; common law rule of proportionate recovery in Barker v Corus  UKHL 20; Compensation Act 2006 enacted to overturn Barker v Corus; appeal originates in Guernsey, where Compensation Act 2006 does not apply; whether Barker v Corus applies; unanimously held that Barker v Corus continues to apply in Guernsey; appellant therefore only partially liable; if Guernsey had equivalent to Compensation Act appellant would be fully liable; appeal allowed
Zurich Insurance PLC UK Branch v International Energy Group Ltd (Rev 2)
 UKSC 33
public international law; sovereign immunity; nature of sovereign immunity; whether the Foreign States Immunities Act 1985 (Cth) should be construed in light of international developments in the doctrine of sovereign immunity; appeal dismissed
Firebird Global Master Fund II Ltd v Republic of Nauru
 NSWCA 360
state immunity; Anti-Terrorism Act Claims; state sponsored terrorism; Terrorism exception to the jurisdictional immunity of a foreign state pursuant to Foreign Sovereign Immunities Act § 1605A and Antiterrorism Act 18 U.S.C. § 2333; plaintiffs family members of rocket attack victims or injured survivors caused by the Hezbollah terrorist organization in Israel in 2006; filed lawsuit against the Democratic People’s Republic of Korea and the Islamic Republic of Iran and several banks pursuant to Foreign Sovereign Immunities Act 28 U.S.C. § 1602 et seq., and Antiterrorism Act 18 U.S.C. § 2333; defendants did not answer; plaintiffs moved for entry of judgment on the default as to North Korea, Iran, and the Central Bank of Iran; liable for damages because they provided material support and assistance to the Hezbollah terrorists who fired the rockets at Israel that caused plaintiffs’ injuries; definition of “state sponsor of terrorism”; plaintiffs’ motion for default judgment granted with respect to North Korea and Iran for purposes of liability; denied with respect to the Central Bank of Iran
Kaplan et al v Central Bank of the Islamic Republic of Iran et al
2013 WL 4427943
Commercial Arbitration Act 2011 (Vic) enacted Model Law of United Nations Commission on International Trade Law; special rules for construction of statutes which implement international agreements discussed; appeal allowed
Subway Systems v Ireland
 VSCA 142
effect of entry into treaty; submission to jurisdiction of domestic courts of other State Party; effect of accession to the Torture Convention; construction of Art 14; whether Art 14 provides for universal civil jurisdiction; application of Vienna Convention, Arts 31 and 32
Li v Zhou
 NSWCA 176
Article 1F(c) of the Geneva Convention on the Status of Refugees; excludes from protection “any person with respect to whom there are serious reasons for considering that… he has been guilty of acts contrary to the purposes and principles of the United Nations”; where grant of refugee status refused on grounds of applicants possessing and contributing to books connected with Al Qaeda and other proscribed organisations; issue whether all activities defined as terrorism by UK law are for that reason acts falling within article 1F(c); whether such activities must constitute a threat to international peace and security; Court held article 1F(c) should be interpreted restrictively and applied cautiously; high threshold defined by gravity of act, manner of act and implications for international peace and safety; act must have international dimension, adopting UNHCR Guidelines paragraph 17; Court held test is whether the resulting acts had the requisite serious effect on international peace.
Al-Sirri (Appellant) v Secretary of State for the Home Department (Respondent); DD (Afghanistan) (Appellant) v Secretary of State for the Home Department (Respondent)
 UKSC 54
Geneva Conventions; Diplomatic Notes and Memorandum of Understandings between Australia, UK and US; where respondent, citizen of Pakistan, was taken into custody by British forces during occupation of Iraq and transferred to US custody; US transferred respondent to facility in Afghanistan; discussion of habeas corpus; held reasonable grounds on which it may be concluded that the UK could assert the actual physical control of the respondent due to terms of MOU; whether ‘protected person’ under the Geneva Convention; unlawful detention; discussion of obligation of UK to request return of respondent or remedy situation where breach, where US refusal to transfer the respondent back to UK custody.
Secretary of State for Foreign and Commonwealth Affairs v Rahmatullah
 UKSC 48
enforceability of foreign judgments; insolvency; whether an order or judgment of a foreign court in proceedings to adjust or set aside prior transactions will be recognised and enforced; UNCITRAL Model Law; jurisdiction in international bankruptcy; discussion of New Cap Reinsurance Corpn v Renaissance Reinsurance Ltd  NSWSC 856; letter of request from Australian Court in October 2009 to High Court in England and Wales to ‘act in aid of and assist’ enforcement of judgment; discussion of nature of avoidance proceedings; judgments in personam; discussion of jurisdictional links; Australian judgment in New Cap is enforceable by reason of the Syndicate’s submission to Australian jurisdiction; enforcement should be by way of registration under Foreign Judgments (Reciprocal Enforcement) Act 1933, not common law.
Rubin & Anor v Eurofinance SA & Ors
 UKSC 46
whether it is an answer to a refugee claim by an individual who has no political views and who therefore does not support the persecutory regime in his home country to day that he would lie and feign loyalty to that regime in order to avoid the persecutory ill-treatment to which he would otherwise be subjected; discussion of correct application of principle of HJ (Iran) v Secretary of State for the Home Department  AC 596; discussion of imputed political belief.
RT (Zimbabwe) and others (Respondents) v Secretary for State for the Home Department (Appellant); KM (Zimbabwe) (FC) (Appellant) v Secretary of State for the Home Department
 UKSC 38