It’s International Judicial Assistance Week at the Supreme Court!
Golan v. Saada
Today, the Court hears argument in Golan v. Saada, an Abduction Convention case. Under the Convention, the general rule is that a child has to be returned to his or her country of habitual residence, which has jurisdiction to decide questions about custody. But there is an exception to the rule requiring return when there is a grave risk that the child’s return would expose him or her to physical or psychological harm. The question in Golan is whether the US court must consider whether ameliorative measures might facilitate the return of the child despite the risk.
There are high-powered briefs on both sides of the issue. On the one hand, the Solicitor General argues that nothing in the Convention expressly requires consideration of possible ameliorative measures and that the longstanding position of the State Department is that the question should be one for the judge’s discretion. The courts, according to the SG, should not let the consideration of ameliorative measures if that consideration would unduly delay the return of the child, given the Convention’s requirement of expeditious action.
On the other hand, Professors Linda Silberman, Louise Ellen Teitz, and Robert Spector filed a strong brief making the point that the grave risk the Convention mentions isn’t about what happened in the past, but about what may happen in the future; and it’s impossible to say that the child faces a grave risk upon return without considering the risk the child will actually face in light of ameliorative measures that can be put in place. They also argue that the practice foreign courts and the guidance from the Hague Conference support their view.
It’s not my area, so I hesitate to give a firm view. If I had to give a view, I’d say that I tend to favor the Silberman/Teitz/Spector view, because the overarching purpose of the Convention is to return children to the state of habitual residence to allow the courts there to adjudicate custody. Of course there are exceptions, but if a child can be returned safely, then probably return is the right thing. Mayela Celis’s post at Conflict of Laws does, though, give me pause. She points to studies suggesting that where ameliorative measures are adopted, they often are breached once the child is returned.
ZF Automotive v. Luxshare
On Wednesday, the Court will hear argument in ZF Automotive v. Luxshare, the case that asks whether parties to a private international arbitration outside of the United States can apply for judicial assistance under 28 USC § 1782. Long-time readers know that I have gone back and forth on this question. I hate to say it, because it’s not in my own proprietary interest, but I think the best view is that a private international arbitral tribunal is not a “foreign or international tribunal” for purposes of the statute. It would be anomalous for a party to an international arbitration to have greater rights to invoke the machinery US pretrial discovery than a party to an ordinary domestic arbitration has. On the other hand, the Intel case defines “tribunal” functionally, and an arbitral tribunal seems to satisfy any reasonable functional criteria. So a decision in the case may lead to a wider rethink of Intel.
It’s not often that we see an international judicial assistance case at the high court, let alone two cases in a week!