Judges comply with open new arbitration and worldwide custody circumstances


By Amy Howe

at 6:35 p.m.

The Supreme Court added three new cases to its file on Friday for the 2021-22 term. Following the court’s rulings on two cases contesting a Texas law that on Friday morning bans almost all abortions after the sixth week of pregnancy, the new grants had a significantly lower profile on Friday afternoon. The judges agreed to deal with issues ranging from international child custody to exposure in private arbitration and the scope of the Federal Arbitration Act.

In the Golan v. Saada will return to the court’s interpretation of the Hague Convention on the Civil Aspects of International Child Abduction, an international treaty adopted in 1980 to deal with international child abduction in domestic disputes. According to the Convention, children who have been illegally removed from the country in which they live must be returned to that country so that custody disputes can be settled there. The rationale behind this mandate is that a parent should not get an advantage in a custody battle by kidnapping the child and taking them to another country.

The Convention provides for an exception to the general return obligation for cases in which there is a “high risk” that the return would expose the child to physical or psychological harm. At Golan, judges agreed on whether the courts should consider any measures that could reduce the serious risk of harm if the child were to return home.

The question arises, how often in Hague Convention cases, when parents from two different countries are concerned. Narkis Golan, a US citizen, married Isacco Saada, an Italian citizen, in 2015; the couple’s child, named BAS in legal proceedings, was born in Milan in 2016. Saada was molested with Golan throughout her marriage, often before BAS, but he did not directly molest her son. In 2018, Golan brought BAS to the United States and did not return, staying in domestic violence shelter in New York. Saada went to federal court there and tried to force BAS to return to Italy under the convention.

The U.S. 2nd District Court of Appeals ruled that if a district court determines that the return of a child would pose a significant risk of harm, the district court must consider measures to reduce this risk. The case then went back to the district court, which ordered BAS to return to Italy with a variety of measures to protect him – for example, Saada’s payment of the Golan costs for one year, a protection order against Saada, and therapy and education courses for Saada.

Golan went to the Supreme Court and asked the judges to open their case. She argued that District 2 rule requiring courts to consider measures to reduce the risk of serious harm clashed with the findings of other appellate courts that do not mandate such measures – particularly in domestic violence cases.

In April 2021, judges asked the federal government for their views, and in October the United States agreed that the Supreme Court should play a role. The Hague Convention, the government stated, “allows but does not require a court to consider action”. which could mitigate a serious risk of harm when deciding whether the return of a child should not be ordered “within the framework of the exception from the general obligation to return.

The judges summarized two cases, ZF Automotive US v Luxshare, Ltd. and Alixpartners against Fund for Protection of Investor Rights in Foreign States, and planned to negotiate them together. They include federal law that gives district courts the discretion to instruct anyone in that district to testify or produce documents “for use in a foreign or international court.” Earlier this year the judges granted review in Servotronics vs. Rolls-Royce determine whether this discretion extends to the discovery for use in private arbitration. It was removed from the court’s file after the parties settled the case; now the judges will re-examine this question.

The judges also upheld a petition from Southwest Airlines on a case involving federal arbitration law. The court agreed to decide whether an airline employee who works as a ramp agent supervisor is a “transport worker” and is therefore not obliged to settle her wage dispute with the airline.

The judges will issue further orders from the Friday conference on Monday, December 13th at 9:30 am

This article was originally published by Howe on the Court.

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