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Defenses to Return under the Hague Convention
The Hague Convention establishes four defenses to the return of a child who has been wrongly taken from its habitual residence: 1) The proceeding is commenced in the responding state more than one year after the wrongful removal or retention, and 'the child is now settled in its new environment' (Article 12); 2) The party now seeking return of the child was not actually exercising custodial rights at the time of the wrongful removal or retention of the child; or there was consent to the removal; or there was acquiescence to the retention (Article 13 (a)); 3) The return of the child would expose him or her to physical or psychological harm 'or otherwise place the child in an intolerable situation'(Article 13(b)); or the child objects to being returned and is of such age and maturity that it is appropriate to take account of his views (Article 13 (b)); and 4) That human rights and fundamental freedom would be abridged if the return were permitted (Article 20).
A respondent who opposes the return of the child has the burden of establishing by clear and convincing evidence that one of the exceptions set forth in articles 13b or 20 of the Convention applies, and, by a preponderance of the evidence, that any other exception set forth in article 12 or 13 of the Convention applies. 42 U.S.C. 11603(e). Importantly, a finding that one or more of the exceptions provided by Articles 13 and 20 are applicable does not make refusal of a return order mandatory. The courts retain the discretion to order the child returned even if they consider that one or more of the exceptions applies (Article 18).
Article 12: One-Year Limitations Defense
Major Differences In UK, U.S. Copyright Laws
This article highlights how copyright law in the United Kingdom differs from U.S. copyright law, and points out differences that may be crucial to entertainment and media businesses familiar with U.S law that are interested in operating in the United Kingdom or under UK law. The article also briefly addresses contrasts in UK and U.S. trademark law.
The Article 8 Opt In
The Article 8 opt-in election adds an additional layer of complexity to the already labyrinthine rules governing perfection of security interests under the UCC. A lender that is unaware of the nuances created by the opt in (may find its security interest vulnerable to being primed by another party that has taken steps to perfect in a superior manner under the circumstances.
Strategy vs. Tactics: Two Sides of a Difficult Coin
With each successive large-scale cyber attack, it is slowly becoming clear that ransomware attacks are targeting the critical infrastructure of the most powerful country on the planet. Understanding the strategy, and tactics of our opponents, as well as the strategy and the tactics we implement as a response are vital to victory.
Legal Possession: What Does It Mean?
Possession of real property is a matter of physical fact. Having the right or legal entitlement to possession is not "possession," possession is "the fact of having or holding property in one's power." That power means having physical dominion and control over the property.
The Stranger to the Deed Rule
In 1987, a unanimous Court of Appeals reaffirmed the vitality of the "stranger to the deed" rule, which holds that if a grantor executes a deed to a grantee purporting to create an easement in a third party, the easement is invalid. Daniello v. Wagner, decided by the Second Department on November 29th, makes it clear that not all grantors (or their lawyers) have received the Court of Appeals' message, suggesting that the rule needs re-examination.