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Cross-Border Tribunals for Cross-Border Child Litigation? Some Thoughts on Arbitration in Child Custody Cases

ContributorsRomano, Gian Paolo
Publication date2017
Abstract

In­ternational child litigation is increasing worldwide. The possibility of submitting cross-border dis­­putes to cross-border tribunals, typically through ar­bi­tra­tion, is gene­rally de­nied to the parents and the child, the notion of ‘ar­bi­tra­bi­lity' being traditionally based on the pa­­­tri­­mo­nial nature of the claims being litigated. The talk pur­ports to review the argu­ments un­der­lying that po­sition and to show that most of them, including the public policy component of, and the state in­te­rests in­vol­ved in, child disputes, lead both to question the neutrality of ‘mo­no-na­­tio­nal' tri­b­unals and to realise the potential for a 'conflict of public policies' and of ‘state interests' that may arise when it comes to children with ties to two or more countries. To the ex­tent that they re­flect the dual or mul­tiple iden­tity of the child and his or her pa­rents – cul­­tural, lin­guistic, so­me­times religious –, international (arbitration) courts pro­­­mise to have a grea­­­ter le­­­­­­giti­macy in the eyes of the individuals and to deliver a more even-han­ded jus­tice to them. Re­liance on that justice may reduce abduc­tions which are now fuelled by the per­­cep­tion of forum bias atta­ching to ‘mono-na­­tio­nal' jus­tice.

Keywords
  • Arbitration
  • Family law
  • Children issues
  • Protection of children
  • Parental responsibility
  • Interstate conflicts
Citation (ISO format)
ROMANO, Gian Paolo. Cross-Border Tribunals for Cross-Border Child Litigation? Some Thoughts on Arbitration in Child Custody Cases. In: British Institute of Comparative Law, Event on Current Family Law Issues. London. 2017.
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