5- Transnational Cases

Section 5: Conflict of laws in transnational cases

This section will deal with cases involving the consideration of South Asian laws in France, the United Kingdom, Germany, and United States. Socio-legal expertise is requested for assisting the judge or the jury on cases that include a variety of litigation ranging from the requisites for marriage to murder, and from the request for social benefits (i.e. retirement, child benefits etc.) to citizenship claims. The satisfactory settlement of such issues from the perspectives of the parties involved as well as of society, depends on the appropriate mediation of the legal practices of South Asian immigrants into the law of the "host" countries. What emerges now is, on the one hand, a growing institutional anxiety vis-à-vis ethnic minorities, and, on the other hand, a widespread legal awkwardness in accommodating the complex needs of the global professional market. At the same time socio-legal scholarship is becoming aware of the reverse trend to the conventional legal transplantations bringing Western models to the countries of the “South”, and of the miscommunication arising in terms of ethnic and gender conflicts.

Specific focus will be directed to the language of the law by exploring the legal formulations used in the everyday interactions within the formal setting of law-courts and migrations procedures. Gender and ethnicity will be investigated as crucial variants. Data will be collected through the observation of litigations involving South Asian born migrants and their subsequent generations. This section will highlight, on the one hand, the array of legal solutions that South Asian migrants are susceptible to export, and, on the other hand, the potential miscommunication in the interaction between migrants and legal authorities.

This section includes Livia Holden (scientific coordinator), Prakash Shah, Véronique Bouillier.

Activities

South Asian Culture à la barre: Words of Experts in Transnational Case-Law (workshop held in Paris on the 20th November 2009)

Outcomes

Cultural Expertise and Litigation: Patterns, Conflicts, Narratives (volume under publication edited by Livia Holden).

Detailed projects

>> Prakash Shah

will carry out the United Kingdom case-study with a specific focus on the relationships between policies, legislation and case law. Through the analysis of current legal cases and modern legislation he will investigate the consequences of the development of a substantial British born South Asian population, in particular the demands for recognition of group specific issues as well as particular questions of legal importance, notably in matrimonial contexts. His research will focus on the following questions: (1) how different groups have fared within this process; (2) whether the way forward for accommodation of South Asian legal diversity within Britain is greater group specific recognition along the lines of a personal law system, or by continuing to maintain what we hypothesise to be the presently dominant ad hoc response to diversity by responding to demands in individual cases, without generalised, structural recognition.

>> Livia Holden

will analyze the practice of providing expert reports for the settlement of transnational disputes related to South Asian Diasporas in the United States. Her core objective is to contextually establish the features and the conditions of the successful expert-report from the different perspectives involved in transnational cases: the perspective of the clients and of the socio-legal expert in the first place, but also of the legal counsels and of the decision-making authority (judge or immigration officer). By focusing on the role of mediation that the socio-legal expert plays in the interaction between minority groups and legal institutions, she aims at: (1) understanding how the practice of providing expert reports influences the legal construction of ethnicity and thereby offers an adequate service to minority groups; (2) investigating how the role of socio-legal expert re-shapes the relationship between lawyer, clients, and decision-making authority.

>> Véronique Bouillier

will study how people of South Asian origin living in France interact with the French justice, especially during litigation. By focusing on case studies, she will develop two combined perspectives: firstly, by investigating the attitudes within the French judicial system when confronted with linguistic and cultural diversity; secondly, for those who are involved in the judiciary process, by exploring their understanding of the system, of its constraints, and of its possibilities. What is their expectation, and how do they adjust to legal procedure? She will consider published case-law from Appellate Courts and from “Cour de Cassation”, and will rely also on ethnographic data collected in Courts as well as on discussions with various professionals involved in the legal procedure (judges, lawyers, interpreters).