Droit international général

‘Access to Justice and International Organisations: Coordinating Jurisdiction between the National and Institutional Legal Orders’ by Rishi Gulati has just been published by Cambridge University Press. The author has kindly provided us with the follow summary:

This book addresses some of the most difficult legal challenges that international institutions confront. As is all too evident, we live in a denial of justice age when it comes to the individual pursuit of justice against international organisations (IOs). Victims of institutional conduct are often denied reasonable means of dispute settlement at the international level. Victims are also generally unable to seek justice at the national level due to IO immunities, which aim to secure institutional independence. Access to justice and IO independence are equally important values and satisfactorily realising them both has so far proven elusive. In this book, Rishi Gulati argues that private international law techniques can help allocate regulatory authority between the national and institutional orders in a nuanced manner by maintaining IO independence without sacrificing access to justice. As private international law rules can be adjusted nationally without the need for international action, the solution proposed can be readily implemented, thereby resolving a conundrum that public international law has not been able to address for decades.

The book is divided into five chapters. Chapter 1 provides the basis of, and nature of an IO’s access to justice obligation. It  demonstrates that under international law, IOs must provide ‘appropriate’ modes of dispute resolution to the victims of institutional conduct. Relying on international human rights law in general, and the right to a fair trial in particular, chapter 2 goes on to specify the criteria for assessing the ‘appropriateness’ of dispute resolution mechanisms that should be created at IOs. The discussion does not stop here. Chapter 3 goes on to rigorously apply those criteria to assess dispute resolution mechanisms at IOs, where such mechanisms even exist. It is concluded that where such mechanisms exist, they tend to be deficient. This is the case with several international administrative tribunals created to resolve employment disputes. Alarmingly, in many instances, dispute resolution mechanisms are completely absent, meaning that a denial of justice is a foregone conclusion.

It is thus hardly surprising that more and more, national courts are asked by victims to adjudicate claims against IOs. However, adjudication at the national level is complicated due to the existence of an IO’s jurisdictional immunities before national courts. Chapter 4 considers the nature of institutional immunities, and shows that the application of IO immunities is a conundrum that is yet to be resolved. This chapter considers the latest jurisprudence on the topic. It provides a succinct analysis of all aspects of the law on IO immunities, showing that the manner in which the law is currently applied results in further denials of justice. It is pointed out that no satisfactory solution has been implemented to realise access to justice for victims and an IO’s functional independence simultaneously. Chapter 5 resolves this long-standing international legal challenge. It shows how private international law techniques can be used to realize access to justice in claims against IOs but without compromising on IO independence. This book shows how the various branches of public international law, including international human rights  and international organisations law, do and should interact with private international law with a view to solve a particularly difficult regulatory challenge. The work is not only intended to be academically rigorous, but it seeks to provide real life answers to hard cases.

The author of this post is Martina Mantovani, Phd Candidate at the University Panthéon-Assas.

Climate change litigation has increased dramatically since 2015, the year of the Paris Agreement. A 2021 Report drafted by the Grantham Research Institute on Climate Change and the Environment inventoried more than 1.000 new cases brought to court over the past six years. Among these, a specific type of disputes is gaining considerable momentum: those initiated by children and youth applicants.

While youth-led climate change litigation may at first appear rather “niche”, a closer look at the number and types of cases brought in the name of children demonstrates that this phenomenon is all but negligible for its size, its geographical scope, and its impact on domestic legal systems. A blog post authored by Lorenzo Gradoni and myself for Verfassungsblog and Völkerrechtsblog examines this strand of climate change litigation in a North-South perspective, offering insights on its origin, actors, drivers and prospects.

From the standpoint of the private international lawyer, it is worth remarking that just one of out of the 76 judicial complaints of this kind speaks the language of conflicts of laws. Milieudefensie et al. v. Royal Dutch Shell plc., decided by the Hague District Court in May 2021, is a class action brought by seven NGOs – including Young Friends of the Earth – and 17,379 individuals against a private corporation having its principal place of business in the Netherlands. The case raised the question as to whether a private company can violate a duty of care and human rights obligations by failing to take adequate action to curb greenhouse gas emissions. Before moving on to the merits of a case that presented several cross-border elements, the Hague District Court had to assess its own jurisdiction over the defendant and to identify the applicable law. The Brussels I bis and the Rome II Regulation were deemed applicable to the case at hand.

Considering the outcome of this case – a big victory for the plaintiffs – one may wonder why only 1.3 per cent of the examined cases borrows private international law (PIL) techniques to advance the fight against climate change. The marginal role played by PIL until now may seem surprising, especially when compared to the much bigger part reserved to public international law, whose arguments and discourse feature in most of the domestic complaints and star in some prominent cases brought before the European Court of Human Rights, the Inter-American Commission on Human Rights, the UN Committee on the Rights of the Child (CRC), with a possible debut before the International Court of Justice.

This post sheds some light on the broader phenomenon of youth-led climate change litigation, while addressing at once the plausible reasons behind the performance gap between private and public international law in this field.

Why choosing children and youth as applicants? That’s among the burning questions raised by youth-led climate change litigation. And, indeed, the background of the cases belonging to this trend suggests that we are faced, in this regard, with a strategic move made by the promoters of this litigation. Even though most of the examined cases have been filed by children and youth in their own name, these received substantial support (not only legal, but often also organisational and financial) from several NGOs, who place a special emphasis on their role as initiators of strategic litigation.

The American NGO Our Children’s Trust (OCT) deserves a special mention, being the undisputed forerunner of this kind of litigation. Having brought, since 2011, a great number of actions in the US and consistently acting as an advisor in high-profile cases brought in other jurisdictions,  OCT defines itself as “a non-profit public interest law firm that provides strategic, campaign-based legal services to youth from diverse backgrounds to secure their legal rights to a safe climate”. The “highly strategic legal campaign” this organization is leading “includes targeted media, education, and public engagement work to support the youths’ legal actions”. In the same vein, the Centre for Environmental Rights, who is behind the first South African youth-led constitutional case, “engages in strategic litigation, advocacy, and supports community groups in defending their right to a healthy environment though training and other support initiatives”. Plan B, the initiator of several youth-led climate change cases in the UK, “has been established to support strategic legal action against climate change” with a view to “harnessing market forces towards a better future for us all”. (All italics of this paragraph are added for emphasis). ​ ​​

Strategy is the deliberate search for a plan of action that will develop a competitive advantage and compound it, with a view to facilitate the achievement of the envisioned objectives. These goals emerge with particular clarity from the definition of “strategic litigation” given by the Grantham Research Institute on Climate Change and the Environment, i.e.,  lawsuits “where the claimants’ motives for bringing the cases go beyond the concerns of the individual litigant and aim to bring about some broader societal shift”, such as “advancing climate policies, creating public awareness, or changing the behaviour of government or industry actors” (here, at 12).

When thinking in terms of legal strategy, child and youth applicants may bring along an important competitive advantage, insofar as they can advance specific arguments both on the merits and on procedural grounds that would be either unavailable or not as compelling if put forth by adults (more on this later). But there could be more to youth applicants than sheer legal advantages. In our blogpost, Lorenzo and I suggest that youth-led litigation may be a sophisticate implementation of a broader strategy that straddles law and behavioural sciences, as expressed by Lovejoy’s Law, a presumptive law of social psychology named, curiously enough, after Helen Lovejoy, the Reverend’s wife in The Simpsons. According to Lovejoy’s Law, the love for children is likely to be invoked as an emotional trump card when opponents in a political dispute run out of rational arguments. Said otherwise, it is hard(er) to say no to children, and adults might be more willing to make compromises for the sake of their kids than they would normally make for their own good. Youth-led litigation might therefore create higher engagement, both in the members of the presiding court and in the general public, in keeping with the strategies pursued by the promoting NGOs.

None of the above explains why youth-led litigation has not embraced PIL in the fight against climate change. On the contrary, such omission remains baffling for two reasons.

First, the effects of Lovejoy’s law, if any, could be felt in a trial against a private multinational corporation just as well as in an action against a sovereign state, a type of action which is vastly prevalent in current youth-led climate change litigation. In this respect, it is interesting to note that the complaint in Milieudefensie evokes this Lovejoyan motive, when it affirms that “[c]limate change is an urgent issue. Not only are we already confronted with the consequences every day at present but our children’s future is at stake too. […] Milieudefensie senses that responsibility and it, therefore, makes climate justice the central theme of this new General Policy Plan (here, § 153). The action brought against Royal Dutch Shell aimed at implementing said Plan (at § 154).

Second, PIL has traditionally given the nod to strategic litigation, forum shopping being, according to some scholars, among the most unforgettable notions of this field of law, that keeps lingering even in the minds of those who are largely uninterested in the subject (here, at 49).

The absence of PIL from the toolbox of youth-led climate change litigation has seemingly little to do with the alleged inability of this field of law of addressing global governance issues in a meaningful way. Rather, the explanation appears more “down to earth”, one may say, insofar as it may stem, on the one side, from the particular way in which this strategy is conceived and implemented at the global level and, on the other side, from the current state of climate change legislation.

As for the latter, the statements made by ClientEarth – one of the most important NGOs in the field – are particularly revealing of the dissatisfaction with the current state of climate change legislation. In a section named “How we work”, this NGO distinguishes between “shaping” and “enforcing the law”, suggesting that much works needs to be done on both accounts. This explains why most of the efforts made until aims at filling the gaps of the extant legal framework, either by holding states accountable for commitments made in international agreements (rather than in ad hoc national legislation) or by proposing innovative and expansionist readings of traditional legal notions of domestic (constitutional) law, with a view to deploying them in relation to the “new” problems created by climate change (e.g. the use of the public trust doctrine in the US: see here, at 875). In the words of ClientEarth, the promoters of this litigation: “know how to use the legal system as a lever of change, how to enforce it and how to win” and thy do “not shy away from challenging governments and businesses in court”.

Lawsuits of this kind are situated at the crossroads between “shaping” and “enforcing” domestic laws. This is evidenced (a) firstly, by the lack of global consensus, among the applicants, on very important aspects of such litigation, such as the criterion for apportioning the burden of mitigating measures among states and, (b) secondly, by the emphasis placed by NGOs on the efforts made to adopt, for the purposes of human rights-based litigation, a common (ie global) scientific standard regarding emission reductions, on the assumption that such standard is not satisfactorily embodied in current laws (correspondence with NGOs on file with the author). Against this backdrop, choosing to pursue the action against states seems the most logical way forward, fuelled by the hope of triggering Neubauer-like scenarios, whereby a big win in a (constitutional) forum is followed by a wide-ranging adaptation of existing legislation. Once the desired scientific standard is enshrined in domestic laws, cases against non-compliant businesses may be less cumbersome and become a more straightforward expression of a strategy based on the sheer “enforcement of laws”, in its “public” and “private” variations.

The main reason for the absence of PIL from youth-led climate change litigation lies, precisely, in the choice of defendant made by the “first generation” of claims. A case – even a civil claim – brought against a state in relation to its (sovereign) environmental policy choices will never give rise to issues of jurisdiction, understood as the identification of the competent (state) courts. In fact, this sovereign will have to be summoned before its own courts, in order to prevent the use of state immunity as a foreseeable defence. In the same vein, when the claim questions the quality or the adequacy of a state’s legislation, or invokes the responsibility of said state in relation to an alleged violation of its obligations or duties of care, there is no real issue of applicable law. This will always be the law of the defendant state, eventually read in the light of pertinent international norms. In other words, PIL has not much to say on these matters, the international fungibility between (state) courts and between (state) laws that lies at its core being plainly and incurably lacking in cases presenting this specific conformation.

This is not to say that PIL will not play any role in the future. A closer look at the genesis and conception of the litigation strategy behind the youth-led cases brought until now reveals its highly experimental nature. This strategy is built on a process of trial and error: small and bigger changes are tried and tested, on an experimental basis, in subsequent cases, those that are beneficial being gradually transposed and tested in other jurisdictions. A similar pattern will likely be replicated as regards the choice of defendants: in this sense, the win in Milieudefensie may pave the way to other youth-led climate change cases brought against oil and gas corporations.

Intimations of a change in this direction come directly from the world of NGOs. The Children’s Investment Fund Foundation is “the world’s largest philanthropy that focuses specifically on improving children’s lives” and counts “climate change” among its priorities. It is currently among the major funders of youth-led climate change litigation, that it backs with a $ 83,6 million grant. More precisely, a $ 26,4 million grant is tied to the “ClientEarth Phase III” project, which supports “strategic litigation to accelerate Europe’s low carbon transition and secure Europe’s climate leadership by putting it on a Paris-aligned trajectory”, and $ 21,9 millions are allocated to the File project, which supports similar litigation “in multiple jurisdictions”. It is also worth stressing that the Children’s Investment Fund Foundation has recently been the recipient of some criticism: despite having being created to improve “the lives of children in developing countries who live in poverty”, this organisation has, more recently, allegedly “been used … to pass money towards environmentalist campaigns and other foundations pushing for legal action against energy companies due to the cost of climate change”.

The assumption underpinning this criticism is, at best, debatable: legal actions against energy companies in rich countries might well have indirect beneficial effects on the lives of children in developing countries. However, what is important for the purpose of this blogpost is the acknowledgment of a shift in the flow of funds, that seems to favour, at present, litigation directed against private corporations. Consequently, PIL will play an increasingly important role: owing to a variety of factors – such as the breadth of the activity of transnational corporations, the geographical complexities of their corporate structure, the origin of the applicants, the ubiquity of the damage caused by CO2 emissions, etc – these cases will likely present a “foreign element”, triggering questions about jurisdiction, applicable law and, why not, enforcement of foreign civil judgments.

It is hard to foresee whether this prospective “private strand” of climate change litigation will turn out to be similar to the cases directed against states In cases brought against states before constitutional and international courts, child and youth applicants may be in a more favourable position when arguing both on the merits of the case and on its admissibility.

Concerning admissibility, child applicants might more convincingly plead for the setting aside of the requirement of the prior exhaustion of domestic remedies. While the CRC decisions in Sacchi may disprove this assumption, this is what the lawyers in Duarte Agostinho are trying to advance (here, § 40), given that, in applying this rule, the ECtHR has traditionally paid due regard to the “personal circumstances of the applicant” in order to prevent disproportionate obstacles to the effective exercise of the right of individual application under Article 34 of the Convention (here § 109 and 111). Concerning the merits, child and youth applicants may invoke, first, a principle of non-discrimination, whereby they shall be entitled to the same level of protection of fundamental rights afforded to prior and present generations of adult citizens. Second, they may allege a specific kind of damage. According to the constitutional complaint in Held v Montana, § 231, owing to their “unique physiological characteristics and vulnerabilities, and lack of autonomy and dependency on caregivers” children are “more vulnerable to rights violations”. Being“at a critical development stage in life, as their capacities evolve and their physiological and psychological maturity develops more rapidly than at any other time in life”, youth and children form part of “a separate suspect, or quasi-suspect, class in need of extraordinary protection“. While being specific to a constitutional complaint made under the equal protection clause, arguments of a similar kind could be also invoked within the framework of an action, such as the one put forth by Milieudefensie, aiming at imposing a “duty of care” upon corporations. This should therefore be especially stringent and more compelling vis-à-vis children and youths, as a special class of individuals in need of extraordinary protection.

One should also ask whether, in a lawsuit brought against a corporation, PIL would grant child and youth applicants any kind of comparable favor that is, one that would place them in a better position than an adult filing a comparable claim. In current law, the answer is in the negative. Concerning access to justice, only a few EU Regulations in the field of parental responsibility manifest a certain favor for the child as such, insofar as the sheer presence of the child on the territory of a Member State may, in exceptional circumstances, justify the exercise of jurisdiction by the authorities of that state (e.g. Article 11 of the Brussels IIter Regulation). Outside this particular case, the mere quality of being a child cannot be invoked to bend, in any way, the uniform rules of jurisdiction set by the EU legislator, ie to open a forum in Europe when there is none. The CJEU has confirmed, in case C-393/18 PPU, that the particular vulnerability of the child, deriving from his lack of decisional autonomy and his dependency vis-à-vis his caregivers, cannot serve as a basis for an extensive interpretation of the grounds of jurisdiction established by EU law.

This same argument should apply, a fortiori, in civil and commercial matters, which youth-led climate change litigation belongs to. Here, the principle of the best interests of the child is no longer at the forefront, and there is no detectable favor for younger applicants. As far as the Brussels Ibis and the Rome II Regulations are concerned, child and youth applicants are in the exact same position as an adult bringing a comparable claim. It is equally unlikely that the condition of dependency of the child vis-à-vis the caregivers could warrant the opening of a forum of necessity under domestic rules of PIL, on the basis that “proceedings abroad are impossible or cannot reasonably be required” (cf art. 3 of the Swiss law on PIL).

Nonetheless, there are good reasons to suspect that an increasing number of youth-led climate change cases against corporations will land in Europe in the near future. In fact, despite the neutral attitude adopted by PIL vis-à-vis child applicants, the procedural framework set out by EU law remains remarkably advantageous for the plaintiffs.

First, these could profit from the “hard-and fast” logic underpinning the rules of the Brussels Ibis Regulation, that makes establishing jurisdiction vis-à-vis a corporate defendant having its statutory seat, its central administration or its principal place of business in the EU a relatively straightforward affair, as evidenced by cases such as Luciano Lliuya v. RWE AG or Milieudefensieitself. Youth-led climate change litigation could also follow the trail blazed by the cases on social corporate responsibility and learn from this experience in order to attract, in that same European forum, eventual subsidiaries domiciled in third states. Second, in terms of applicable law, the EU legal framework might be particularly appealing in the light of the policy-oriented rule of conflict set out by Art. 7 of the Rome II Regulation, that grants the plaintiffs a choice between the law of the country where the damage occurred and that of the country of the unlawful event. This could point, in most cases, to the applicability of the law of a Member State, embodying the European acquis on environmental law and abiding to a fairly high standard of protection.

A thorough analysis of the advantages (and potential inconveniences) underpinning the rules of EU PIL is beyond the scope of this blog post. I formerly discussed the possible strategies employed to “open” a forum in the EU based on the Brussels Ibis Regulation here. For the rest, I gladly refer to the overview given here by Eduardo Álvarez-Armas. It should just be added that the recently published Proposal for a Directive on corporate sustainability due diligence might bring along a new, unprecedented advantage for child applicants who succeed in seizing a court in the EU. The proposed Directive – which purports to effectively contribute to combating climate change: cf Recital 50 – seeks to introduce, inter alia, a uniform rule on civil liability for the violation of the (also uniform) obligations of due diligence set out by the proposed instrument. This rule would be applicable also to companies established outside the EU “where 80-90 % of the harm of EU production may occur”, provided that the turnover criterion set out in Art. 2(2) of the proposed Directive is complied with (see here, at 8). Equally remarkable is the fact that the rule on civil liability shall be “of overriding mandatory application in cases where the law applicable to claims to that effect is not the law of a Member State” (Art. 22 (5) of the Proposal). This civil liability rule will therefore complement the law identified under Art. 7 of the Rome II Regulation, in cases where the latter provision will not, due to the specific features of the harmful event, point to the law of a Member State. This plaintiff-friendly legal framework, coupled with the existence of child-specific and geographically targeted funding within the framework of the ClientEarth Phase III project, will likely turn Europe into the hub of youth-led climate change litigation against corporations in the coming years.

The author of this post is Julian Henrique Dias Rodrigues, lawyer in Lisbon.

On 27 January 2022, the Lisbon Court of Appeal gave a decision concerning the (non) recognition in Portugal of notarial deeds attesting a de facto union.

A suit for recognition and enforcement of a foreign judgment (“ação especial de revisão de sentença estrangeira”) was filed in Lisbon in November 2021 by a Portuguese citizen and a British citizen, based on a Declaration of de facto union signed earlier that year before a notary public in London, where the couple lived.

The couple claimed that the above deed corresponds, under English law, to a judgement, and that it confers on the authors of the declaration the status of a relationship equivalent to that of spouses under English law.

The Portuguese Court analyzed the English Civil Partnership Act of 2004 (CPA).

For the Court, the civil partnership corresponding to the Portuguese de facto union is formalised by means of registration before a registry office, which results in the signature of a civil partnership document before the registry officer, with the presence of two witnesses (Article 2, Section 2, of the CPA).

The decision highlights that, under English law, a simple civil partnership agreement does not have any legal force (“does not under the law of England and Wales have effect as a contract giving rise to legal rights”, as stated in Article 75 of the CPA).

The Court acknowledged that it had previously recognized a public deed of de facto union of Brazilian origin. However, according to the reporting magistrate “[t]he legal situation brought in these proceedings is not analogous to the união estável recognized in Brazil. The English legal institute equivalent to the Brazilian stable union, foreseen and regulated in the United Kingdom, is the civil partnership”.

Relying on English legislation and case-law, the Court concluded that the document does not produce legal effects in the English legal order that go beyond the mere evidential force of the declaration. The legal significance of a partnership does not arise from it. That formal declaration is merely an additional element which the authority deciding whether or not to grant a claim based on the partnership will take into account in deciding in favour of the applicant.

In the Court’s view, the Deed in question was something different than a “civil partnership” under British law. For this reason, the Court refers to civil partnership to underline the difference between the situation created by the Deed and the situation of parties to a civil partnership agreement under UK law.

Returning to the Brazilian example, the judgment highlights that

contrary to what happens in Brazil, where the marriage and the ‘união estável’ can be dissolved by notarial deed, in the United Kingdom the divorce and the dissolution of the civil partnership need the intervention of a court according to the Matrimonial Causes Act 1973, and as for the dissolution of the civil partnership, article 37 of the Civil Partnership Act 2004.

In conclusion, the Lisbon Court of Appeal rejected the request as it considered that the “statutory declaration” is not equivalent in the United Kingdom – or in Portugal – to a judgement or judicial decision, not producing the respective effects.

The Lisbon Court of Appeal issued between 2019 and 2021 a series of judgments admitting the recognition of a public deed of de facto unions established in Brazil, by means of the suit of recognition of foreign judgment. However, there is no consensus on the matter.

In most cases the requests for recognition are made in the context of the acquisition of Portuguese nationality by the de facto union.

At least three judgments of the Supreme Court of Justice (“Supremo Tribunal de Justiça – STJ”) contradict the trend of the Lisbon Court of Appeal (Case 106/18.0YRCBR.S on February 2019, Case 559/18.6YRLSB.S1 on March 2019 and Case 249/18.0YPRT.S2 on December 2019).

For the STJ “the applicants declaration in a Public Declaratory Deed of De Facto Union, before a foreign administrative authority (notary public) that they live in a de facto union since July 2013, should not be considered as covered by the provision of Article 978 no 1, of the Code of Civil Procedure, and cannot be revised and confirmed to produce effects in Portugal” (Case 249/18.0YPRT.S2).

However the divergence remains open in the STJ itself.

By a ruling of 8 September 2020 the Court granted recognition to a declaration of a de facto union, issued before a notary public, and stating “The contracting parties expressly recognize the fact that they have been living as if they were married since January 2005” and that “they have said so, I, the undersigned, have requested and drawn up this instrument, which, having been read aloud and found to be in conformity, they have accepted, granted and signed, together with the witnesses, present at all acts” (Case No. 1884/19.4YRLSB.S1).

To reach this understanding, the reporting magistrate observed that

the Brazilian ‘união estável’ is a fact and not a legal act. The intervention of the public official foreseen in the legal system is constitutive, in the sense of producing effects in the legal order, namely the declarative one of the verification of the situation of de facto union.

As seen above, the matter is likely to continue to be the object of controversy among Portuguese courts.

Written by Catherine Shen, ABLI

The Asian Business Law Institute (ABLI) has recently released a free publication titled Enforcement of Foreign Judgments in ASEAN: Ranking the Portability of ASEAN Judgments within ASEAN, a derivative publication under its Foreign Judgments Project.

The Association of Southeast Asian Nations (ASEAN) comprises of Brunei Darussalam, Cambodia, Indonesia, Lao, Malaysia, Myanmar, Philippines, Singapore, Thailand and Vietnam. These jurisdictions are of different legal traditions of civil law (Cambodia, Indonesia, Lao, Thailand and Vietnam), common law (Brunei Darussalam, Malaysia, Myanmar and Singapore) and hybrid law (Philippines) tradition. There are two primary hurdles for increasing the portability of ASEAN judgments within the bloc. First, some ASEAN jurisdictions, such as Indonesia and Thailand, have no law that allows foreign judgments to be recognised and enforced. Second, most civil law jurisdictions in ASEAN still have rather rigid requirements on reciprocity. These two hurdles are the main influencers of the ranking.

Three key takeaways can be gleaned from the ranking.

First, Vietnamese judgments claim the crown of being the most portable of ASEAN judgments within ASEAN. They can be enforced in seven out of the other nine ASEAN countries, provided, of course, that the requirements for enforcement under the laws of those countries are satisfied. This is a portability rate of close to 78%. Compared to other ASEAN jurisdictions, Vietnam has the benefit of having bilateral agreements with Cambodia and Lao which allow its judgments to be enforced in the latter two jurisdictions. Cambodia requires a guarantee of reciprocity while Lao PDR requires a bilateral treaty with the relevant country covering the enforcement of each other’s judgments before reciprocity is satisfied.

Second, judgments rendered by the other civil law countries of ASEAN come in second place. They can be enforced in six out of nine ASEAN countries.

Third, judgments from the common law countries of ASEAN and the hybrid law jurisdiction of the Philippines are jointly in third place. They can be enforced in five out of nine ASEAN countries, namely in the other common law and hybrid law jurisdictions, as well as Vietnam. Although Vietnam, being a civil law jurisdiction, imposes a condition of reciprocity, it appears relatively easy to satisfy this requirement.

This result may be surprising or even perverse since most civil law jurisdictions, i.e., Cambodia, Indonesia, Lao and Thailand, have comparatively illiberal regimes for the enforcement of foreign judgments (whether due to the rigid requirement of reciprocity or the lack of relevant laws), while the common law and hybrid law jurisdictions in ASEAN have comparatively liberal rules for foreign judgments enforcement. This “asymmetry” is mainly due to the inability of those civil law jurisdictions to return the favour of the more liberal rules of the common law and hybrid law jurisdictions in ASEAN given the state of their laws, namely, the requirement that there be reciprocity between the two countries.

The Enforcement of Foreign Judgments in ASEAN: Ranking the Portability of ASEAN Judgments within ASEAN is available for free and can be downloaded here. ABLI regularly publishes latest developments in the field of recognition and enforcement of foreign judgments in Asia on its website and LinkedIn.

In Farrar & Anor v Miller [2022] EWCA Civ 295, the issue is whether a firm of solicitors which has been acting for a claimant in litigation pursuant to a damages-based agreement can validly take an assignment of their client’s cause of action.

It is the common law of champerty which militates against law firms acting ostentatiously as a party with a purely commercial interest in the litigation and it is their role as officers of the court which is cited as being core of the hesitation (see inter alia the EP study on third party litigation funding here). In England and Wales it was the rules against maintenance and champerty that, prior to 1990, led to solicitors ia not being able to conduct litigation pursuant to conditional fee agreements -CFAs.

Statute then intervened to change this in narrowly defined circumstances  (CFAs and damages-based agreements only) however that did not lift the common law’s general opposition to same and it is this opposition which both the first instance judge and the Court of Appeal refer to to reject the possibility of assignment: [52]

the Assignment is neither a conditional fee agreement nor a damages-based agreement: what section 58(1) and section 58AA(2) show is that Parliament, being well aware of the common law rules, decided to go so far towards relaxing them as sections 58 and 58AA provide and no further.

Permission to appeal with the Supreme Court is being sought.

Geert.

Litigation funding. common law principles of assignment, including champerty
Whether solicitors acting pursuant to damages-based agreement can validly take assignment of client's cause of action

Farrar & Anor v Miller [2022] EWCA Civ 295https://t.co/On1VyazyO8 pic.twitter.com/hvG1kU07bO

— Geert Van Calster (@GAVClaw) March 12, 2022

In this post, Marylou Françoise presents her doctoral work on the role of courts in choice of law from an EU law perspective (‘L’office du juge en conflit de lois : Étude en droit de l’Union européenne’). This is a important issue for all EU PIL experts and obviously a recurring topic in France (see here, here, here and here).

This work raises a topical issue at the crossroad of private international law, EU law, and civil procedure. It aims at rethinking the national procedural system of EU Member States to accommodate more efficiently European choice-of-law rules. The status of EU choice-of-law rules before national courts can legitimately be questioned in the light of the objectives pursued by these rules.

EU choice-of-law rules are part of a specific policy of the European Union based on Article 81 of the Treaty on the Functioning of the European Union. According to this provision, the EU has the competence to develop judicial cooperation in civil matters having cross-border implications. The main goals are to encourage accessibility to justice for European citizens, to offer a predictable justice based on clear articulation of national provisions and to achieve international harmony of solutions. In this context, the European regulations applicable to conflict-of-laws are adopted to ensure that the same national law is designated irrespective of the national court hearing the case. Thus, EU choice-of-law rules have a functional nature. To achieve their goal, they need to be applied uniformly. Yet, there is no common procedural framework along with the European regulations in conflict-of-laws matter. Their uniform application depends on various national procedural provisions of the Member States.

According to the Latin maxim forum regit processum, the procedural status of choice-of-law rules depends on the national law of the court hearing the case. Several studies, including the study conducting by the Swiss institute of comparative law, have shown the diversity of national procedural provisions. The French system is particularly complex because it requires that courts distinguish between rights according to their availability (i.e. whether the parties may dispose of their rights). On 26 may 2021, the French supreme court for private and criminal matters added a new criterion that requires to apply ex officio EU choice-of-law rules when they are mandatory. For the first time (to the best of our knowledge), a national court made a distinction between conflict-of-law rules according to their European origin. If this ruling has to be welcomed according the EU principles of primacy and effectiveness to which the French court referred, the regime of the conflict-of-laws rules becomes more complex : only the choice-of -law rules which do not allow a derogation shall be applied ex officio. Yet, the vast majority of EU choice-of-law rules may be derogated from.

The French system reflects the complexity to define the procedural status of the European conflict-of-laws. More broadly, according to the national court hearing the case, the application of EU choice-of-law rules become unpredictable. The ex officio implementation of EU law directly depends on the competent court. This seems to be in complete contradiction with the purpose of EU choice-of-law rules. The unpredictable nature of the choice-of-law rule is strengthened by the lack of a European corrective mechanism.

The principle of procedural autonomy of EU Member States allows them to adopt procedural provisions to implement EU law. However, this principle is bounded by two conditions : equivalence and effectiveness ( see the Comet and SpA San Giorgio cases). These requirements are generally used by the European Court of justice to limit the autonomy of Member States. Regarding the ex officio application of EU provisions, the Court provides for a flexible approach. In its Van Schijndel case, the Court of justice held

Community law does not require national courts to raise of their own motion an issue concerning the breach of provisions of Community law where examination of that issue would oblige them to abandon the passive role assigned to them by going beyond the ambit of the dispute defined by the parties themselves and relying on facts and circumstances other than those on which the party with an interest in application of those provisions bases his claim.

In other words, national courts shall apply ex officio the European provision only if the parties ask for it. An exception is made for certain provisions in consumer law (see the Pannon case). The Court justifies this specific position by the public interest attached to European consumer provisions.

Against this background, the control of the procedural autonomy of the Members States led by the ECJ is not sufficient to establish an efficient system of conflict-of-laws. The intervention of the EU is clearly incomplete to pursue the goal of a European civil justice area. Therefore, how can EU choice-of-law rules achieve international harmony of solutions if there is no common provisions to support their application ? In this context, a new framework should be drawn up to ensure a uniform application of EU choice-of-law rules.

Firstly, it is necessary to analyse the EU acquis regarding the application of choice-of-law rules, in particular the overriding mandatory provisions, in cross-border situations and the parties’ freedom to choose the applicable law. The application of national mandatory rules is generally strictly controlled by the European Court of justice (see the Nikiforidis case). At the same time, the identification of EU mandatory provisions is confusing (see the Unamar and Da silva cases). Then, the possibility for the parties to choose the applicable law is widely accepted by European conflict of laws rules (in contractual and non-contractual matters) – except for articles 6-4 and 8 of the Rome II Regulation. EU choice-of-law rules become optional for both the parties and courts. Indeed, if the European provisions allow a derogation, they are not compulsory for the judge according to national procedural systems. These two examples illustrate that EU law is already influencing the national application of EU choice-of-law rules. However, this influence is incomplete and flawed. The procedural status of the European rule depends on the interpretation by national courts of the mandatory nature of a law or of the existence of a choice of law agreement by the parties.

EU choice-of-law rules must be applied consistently. They should have a uniform procedural status. The latter can depend neither on the substantive nature of the respective rights, nor on the national interpretation of the mandatory nature of the rule. EU choice-of-law rule must be mandatory for national courts. This solution may be seen as radical in particular since the freedom of the parties is a key component of civil procedure. It could also generate an increase of procedural costs because of the recurrent application of foreign laws. That is why this obligation to apply the choice of law rule ex officio should be limited. Party autonomy wit respect to the applicable law should be maintained but it should be exercised after the ex officio application of the choice of law rule by the court. This private choice must also be strictly framed by the choice-of-law rules themselves. The material scope of the procedural choice should comply with the individual choice allowed by the EU regulations and the procedural choice should be express. In other words, the EU choice-of-law rules should be applied automatically by the Court and parties should be informed of the potential application of foreign law.

This proposition can be loudly criticised according to the civilian procedural system. National courts cannot be a substitute for negligent litigants and several questions arise. How much litigation will cost ? How long it will last ? Are national courts well trained in European private international law ? Can they have an easy access to foreign law ?

At the same time, these arguments seem outdated. EU law is now part of national law in the Member State. The rise of international disputes requires full awareness of EU provisions and a close collaboration between EU judicial systems.

The uniform application of EU choice-of-law rules is the only way to achieve the objective of a European civil justice area. In this context, the PhD dissertation concludes by providing a proposal for a European regulation on a common procedural frame in choice of law. This proposal – based on Article 81-1 and Article 81-2 c), e) and f) of the Treaty on the functioning of the European Union – could be included into the existing regulations on choice of law. It could also appear in a future European code of private international law or in a regulation on procedural aspects of choice of law rules.

This proposal finally requires an inevitable adaptation in practice. Judicial practitioners, such as judges and lawyers, must be trained in European private international law. The ex officio application of EU conflict-of-law rule would be a revolution for many national procedural systems. But it seems to be a necessary evolution for the European judicial system.

On 31 March 2022, 4-7pm CEST, the German Association of International organizes an online panel, in German, on question of public and private international law regarding the Russian invasion of Ukraine: The topics are as follows:

• Public international law questions of armed conflict (Paulina Starski)
• Public international law questions “off the battlefield” (Markus Krajewski)
• The enforcement of claims from Russian government bonds: potential scenarios (Peter Kindler)
• The status of Ukrainian refugees in private international law (Jan von Hein)

More information here.

In 2019 in Würzburg a group of young researchers from several EU Member States met for a comparative Private International Law project and to create what later became the EAPIL Young Research Network.

The first project, initiated by Susanne Lilian Gössl (Germany) and  Martina Melcher (Austria), dealt with the national implementation of the CJEU/ECtHR case law regarding the so-called “recognition of status”.

The results, a comparative report and most of the national reports, of this project have now been published in the latest issue of the open-access journal Cuadernos de Derecho Transnacional.

The issue comes with national reports from Austria (Florian Heindler and Martina Melcher), Belgium (Sarah Den Haese), Baltic States (Katažyna Bogdzevič and Natalja Žitkevitš), Croatia (Tena Hoško), France (Marion Ho-Dac), Germany (Susanne Lilian Gössl), Hungary (Tamás Szabados), Italy (Marta Giacomini and Martina Vivirito Pellegrino), the Netherlands (Tess Bens and Mirella Peereboom-Van Drunick), Poland (Natalja Žitkevitš) and Spain (María Asunción Cebrián Salvat and Isabel Lorente Martínez)

A report from Sweden, by Laima Vaige, will be published in the forthcoming issue, in Autumn 2022.

I have reported on conflict of laws (jurisdictional and applicable law) angles to the EP’s draft proposals on Corporate Sustainability Due Diligence before. As I discuss in those posts (more analysis is on NOVA’s site here), many of the suggested routes created more difficulties than they solved. In the eventual February proposal (with 71 recitals: that is poor legislative drafting), the conflict of laws ambitions are much reduced. Leigh Day have a good summary of the issues here. Thank you Jorian Hamster for poking me to put my thoughts to paper.

The jurisdictional ambition is now merely expressed in terms of regulatory scope. On p.15 under the proportionality assessment, the proposal justifies its public international scope using the effects doctrine:

The EU turnover criterion for third-country companies creates a link to the EU. Including only turnover generated in the Union is justified since such a threshold, appropriately calibrated, creates a territorial connection between the third-country companies and the Union by the effects that the activities of these companies may have on the EU internal market, which is sufficient for the Union law to apply to third-country companies.

Proposed A2(1) focuses on ‘EU corporations’ (“companies which are formed in accordance with the legislation of a Member State) and proposed A2(2) looks at non-EU corporations (“companies which are formed in accordance with the legislation of a third country”), each with relevant thresholds distinguishing between quantitative (turnover) and qualitative (risk sectors: textiles, agriculture, extractive industries) criteria.

I am not sure why the lex incorporationis is preferred as the trigger criterion. Domicile as defined in Brussels Ia‘s Article 63 could be more attractive, seeing as it captures corporations with statutory seat outside of the EU but with their central administration or principal place of business here.

‘Turnover generated in the EU’ is bound to provoke some discussions however experience from in particular competition law should be able to help here.

The most obvious anchor point for applicable law is proposed A22. This sets out the requirement for Member States to define rules governing the civil
liability of the company for damages arising due to its failure to comply with the due diligence requirements, and then suggests in (5)

Member States shall ensure that the liability provided for in provisions of national law transposing this Article is of overriding mandatory application in cases where the law applicable to claims to that effect is not the law of a Member State.

The intention of this Article is to make the national civil liability rules which Member States are due to ensure in follow-up of the future Directive, so-called ‘overriding mandatory law’ aka ‘lois de police’ aka ‘lois d’application immédiate’ under A16 Rome II. The challenge for the EU to harmonise private law, such as civil liability rules, shows in this formulation. The EC makes recourse to a Directive, not a Regulation, since (p.17)

The proposed instrument is a Directive, since Article 50 TFEU is the legal basis for company law legislation regarding the protection of the interests of companies’ members and others with a view to making such protection equivalent throughout the Union. Article 50 TFEU requires the European Parliament and the Council to act by means of directives.

Hence rather than formulating the future Directive’s liability provisions itself as of overriding EU law nature (a possibility expressly foreseen in Rome I’s rules on applicable law for contracts, but not impossible I believe within Rome II), the Directive will oblige Member States to ensure the lois de police character of their future rules implementing the Directive. I understand the difficulty yet I think the proposal could shortcut the discussion (and avoid difficulties in case a Member State fails to declare the lois de police nature) by declaring ‘Member States’ provisions of national liability law transposing this Article are of overriding mandatory application in cases where the law applicable to claims to that effect is not the law of a Member State.’

(the latter part I believe is simply redundant).

In claims based on tortious liability, the Directive is most likely to be used to help establish fault (by action or omission). The remainder of the action (solidarity between various tortfeasors, damage calculation etc) will remain subject to the lex causae otherwise applicable. In claims based on unjust enrichment (a business and human rights route much worth exploring for supply chain cases) the Directive will most likely remain of smaller use seeing as these claims do not aim to establish liability, however the  paper trail which the Directive will ensure, may be of documentary use here, too.

Geert.

At first sight few conflict of laws anchors in EU's proposed due diligence law
EU turnover as threshold is reminiscent of EU competition law
Registered office as compliance anchor
A22 qualifies the Dir as lois de police viz Rome I, II
71 recitals – yukhttps://t.co/JV1dip9gfW pic.twitter.com/Obhkn3qXR8

— Geert Van Calster (@GAVClaw) February 23, 2022

Several French learned societies (International Arbitration Institute, Comité français de l’arbitrage, Comité français de droit international privé, French Branch of the International Law Association, Société de législation comparée) will pay a tribute to Emmanuel Gaillard in a conference held in the Grand Amphithéâtre of the Sorbonne in Paris on 15 April 2022.

The conference Emmanuel Gaillard Theory in Action will feature testimonials of a variety of professionals and discussions of some of the theories promoted by Emmanuel Gaillard, including the arbitral legal order and the boundaries of private international law.

The sudden passing of Professor Emmanuel Gaillard on 1 April 2021 came as a shock for the legal world. One year later, five learned societies, of which Professor Gaillard had been an active member, on whose governing board he had served or which he had founded, are endeavouring to pay tribute to his manifold contributions to the world of law as well as the depth of his thinking, in arbitration law and beyond. The testimonials, analyses and discussions that will be shared during this event will highlight Professor Gaillard’s ability to combine theory and practice. Though he is no longer with us, he will forever remain an inspiration to generations of lawyers, as they strive to carry forth his legacy: theory in action.

The full programme of the conference is available here. Registration to the conference is possible here.

Gaillard was a prolific author, who wrote many books and articles. He also liked to draw, and made some drawings which aptly summarise some of his theories.

The war in Ukraine has also affected the lives of legal researchers. The Max Planck Institute for Comparative and International Private Law is extending support to these individuals.

The Institute would like to assist scholars who have had to discontinue their research activities because of the war in Ukraine. Towards this end, the Institute is offering scholarships supporting a stay in Hamburg for research in the field of private law. In addition to office space and access to our library, we can also provide assistance in locating housing.

Affected researchers can contact the Institute’s Welcome Center. The offer is directed at doctoral candidates as well as individuals who have already earned their doctorates.

© shutterstock / MAKSIM ANKUDA

Under the Insolvency Regulation 2015, a transfer of the centre of main interests (COMI) of the debtor after lodging of the request for opening of insolvency proceedings affects the exclusive jurisdiction of the court seised with that application prior to the transfer?

This is the legal issue that the Court addresses in the judgement delivered this morning in the case Galapagos BidCo, C-723/20.

A holding having its registered office in Luxembourg since 2014 contemplates, in June 2019, to move its actual centre of administration to England. In August 2019, its directors lodge a request before the High Court to have insolvency proceedings opened in respect of the debtor’s assets.

The following day the directors are replaced by a new one, who sets up an office for the holding in Germany.

The request to have insolvency proceedings opened before the High Court is not withdrawn. Quite to the contrary, they seem to continue although a decision opening these proceedings has not yet been delivered.

That being said, a request for the opening of insolvency proceedings is lodged by the holding also with a German court.

This court orders preservation measures and appoints a temporary insolvency administrator. The capital market and bondholders are informed that the centre of administration of the holding have been move to Germany. However, the second instance court ruling on an appeal introduced by the creditors reverses the order of the first instance and dismisses the debtor’s request to have insolvency proceedings opened, due to the lack of international jurisdiction.

Next, the creditors request to have insolvency proceedings opened, still in Germany, in respect of the debtor’s assets. The German court considers that it has jurisdiction to rule on the request as the centre of main interests of the holding is situated in Germany. It orders preservation measures and appoints a temporary insolvency administrator.

A subsidiary of the holding brings an appeal against the order. It argues that the German courts lack jurisdiction as the centre of administration of the holding has been moved to England in June 2019. The appeal is dismissed by the second instance court.

An appeal on a point of law is brought before the Bundesgerichtshof, which lodges a request for a preliminary ruling before the Court of Justice.

Is Article 3(1) of [the Insolvency Regulation 2015] to be interpreted as meaning that a debtor company the statutory seat of which is situated in a Member State does not have the centre of its main interests in a second Member State in which the place of its central administration is situated, as can be determined on the basis of objective factors ascertainable by third parties, in the case where, in circumstances such as those in the main proceedings, the debtor company has moved that place of central administration from a third Member State to the second Member State at a time when a request to have the main insolvency proceedings opened in respect of its assets has been lodged in the third Member State and a decision on that request has not yet been delivered?

If Question 1 is answered in the negative:

Is Article 3(1) of [the Insolvency Regulation 2015] to be interpreted as meaning that: the courts of the Member State within the territory of which the centre of the debtor’s main interests is situated at the time when the debtor lodges the request to have insolvency proceedings opened retain international jurisdiction to open those proceedings if the debtor moves the centre of its main interests to the territory of another Member State after lodging the request but before the decision opening insolvency proceedings is delivered, and such continuing international jurisdiction of the courts of one Member State excludes the jurisdiction of the courts of another Member State in respect of further requests to have the main insolvency proceedings opened received by a court of that other Member State after the debtor has moved its centre of main interests to that other Member State?

The Court decided to answer the preliminary question without first requesting its Advocate General to present an Opinion.

In its judgement, the Court focuses its attention on the second preliminary question.

Its considers that, by this question, which it is appropriate to examine first, the referring court seeks to establish, in substance, whether Article 3(1) of the Insolvency Regulation 2015 is to be interpreted as meaning that the court of a Member State to which an application for the opening of main insolvency proceedings has been made retains exclusive jurisdiction to open such proceedings where the centre of the debtor’s main interests is transferred to another Member State after that application has been lodged but before that court has given a decision on it (paragraph 24).

The Court answers in the sense that the court of a Member State seised of an application for the opening of main insolvency proceedings retains exclusive jurisdiction to open such proceedings where the centre of the debtor’s main interests is transferred to another Member State after the application has been lodged but before that court has given a ruling on it. Consequently, and insofar as that Regulation remains applicable to that application, the court of another Member State subsequently seised of an application made for the same purpose may not, in principle, assume jurisdiction to open main insolvency proceedings until the first court has given judgement and declined jurisdiction (paragraph 40).

Having in mind the specificity of the case which concerns the UK, the Court makes some additional remarks as to the implications of Brexit. Indeed, the aforementioned passage relating to the fact that “the Regulation remains applicable to the application” echoes this issue.

In essence, the Court clarifies that if on the date of expiry of this transitional period (31 December 2020), High Court had still not ruled on the application for the opening of main insolvency proceedings (it seems that it is not clear whether this was the case), it would follow that Insolvency Regulation 2015 would no longer require that, as a result of this application, a court of a Member State, on the territory of which debtor’s centre of main interests would be located, should refrain from declaring itself competent for the purposes of opening such proceedings (paragraphs 38 and 39)

Given the answer to the second question and having in mind that at least potentially the court seized first with the request for the opening of main insolvency proceedings may have retained its exclusive jurisdiction, the Court deems it not necessary to address the first preliminary question  (paragraphs 41 to 43)

The judgement can be consulted here.

Guillaume Laganière – Professor of Law at the Université du Québec à Montréal – has recently published a monograph (based on his doctoral dissertation) titled Liability for Transboundary Pollution at the Intersection of Public and Private International Law. The book was published by Hart Publishing within its series Hart Monographs in Transnational and International Law.

The publisher informs that:

This book focuses on how public and private international law address civil liability for transboundary pollution. In public international law, civil liability treaties promote the implementation of minimum procedural standards in domestic tort law. This approach implicitly relies on private international law to facilitate civil litigation against transboundary polluters. Yet this connection remains poorly understood. Filling the gap, this book engages in a meaningful dialogue between the two areas and explores how domestic private international law can reflect the policies developed in international environmental law. It begins with an investigation of civil liability in international environmental law. It then identifies preferable rules of civil jurisdiction, foreign judgments and choice of law for environmental damage, using Canadian private international law as a case study and making extensive references to European law. Liability for transboundary pollution is a contentious issue of the law, both in scholarship and practice: international lawyers both private and public as well as environmental lawyers will welcome this important work.

Table of contents may be consulted here.

Al Assam & Ors v Tsouvelekakis [2022] EWHC 451 (Ch) shows the way many claims involving EU Member States facts or defendants are likely to go, until the novelty of newly found forum non freedom wears off perhaps: with intensive forum non conveniens-based jurisdictional challenges.

The defendant is domiciled in England and Wales. The claimants are the settlors of 2 Cypriot trusts who claim for the losses suffered in connection with the trusts’ investments. The trusts were both established under the International Trusts Law of the Republic of Cyprus.

As in Klifa v Slater, the forum non test, following Spiliada and VTB v Nutritek, [12] involves two limbs: Under limb 1 of the test, the Defendant must establish that the courts of Cyprus are both (i) “available” and (ii) are clearly or distinctly more appropriate than the English courts as a forum for determining the dispute. If the Defendant can establish that limb 1 of Spiliada is satisfied, it becomes necessary to consider limb 2. Limb 2 requires a consideration of whether, even if the courts of Cyprus are an available forum that is clearly or distinctly more appropriate for the trial of the action than the courts of England, justice nevertheless requires that a stay of the English proceedings should not be granted.

On availability, there is a bit of to and fro and each other’s Cypriot law legal experts, particularly on the territorial jurisdiction under residual Cypriot rules. However the conclusion [26] is that the Cypriot courts are ‘available’.

Obiter, Richards DJ discusses whether if there is no availability under Cypriot law, there might be availability if there is a submission to jurisdiction and/or an agreement /choice of court.

Discussion here was first whether A26 Brussels Ia could remedy the lack of territorial jurisdiction under Cypriot law. Unlike A25 choice of court, A26 does not include language making the defendant’s domicile in the EU a precondition for its application. At [32] the conclusion for the purpose of these proceedings is that there is a real risk that the Cypriot courts will not have jurisdiction on the basis of A26.

The discussion then [33ff] turns to the Cypriot courts being the clearly or distinctly a more appropriate forum with the conclusion being in the negative.

Helpfully, and suggested by counsel, the judge puts the following structure to the analysis:

a) personal connections ([39]: defendant’s residence in England remains a relevant factor pointing towards the English courts being the appropriate forum);

b) factual connections (held: correspondence between the parties will be of more relevance than the physical location of parties in Cyprus);

c) evidence/convenience/expense (conflicting factors here but none leading overwhelmingly to Cyprus);

d) applicable law (most likely Cypriot law for many of the claims however ia given the similarity with English law, this is not an overwhelmingly relevant issue [56] and some Swiss law will have to be applied anyways); and

e) the “overall shape of the litigation”, held [59] not to be Cypriot.

Limb 2, the requirements of justice, is considered obiter under two angles [61]: delays and the possibility of statutes of limitation kicking in. On the delays, [67] comity and caution to express chauvinistic views upon a friendly jurisdiction argue against a finding of unavailability of justice on this ground, particularly as the experts’ views on this were inconclusive; the possibility of statute of limitation is held [68] largely to be of the claimants’ own making (ia because they had started but discontinued proceedings in Cyprus. Limb 2 therefore, had it mattered, would not have been satisfied and had limb 1 been met, a stay of the proceedings in England would have been ordered.

Geert.

Defendant domiciled in E&W. Claimants (settlors of 2 Cypriot trusts sue for losses suffered in connection with Trusts' investments. Forum non argument dismissed. Another lengthy discussion following Brexit

Al Assam ea v Tsouvelekakis [2022] EWHC 451 (Ch) https://t.co/Sd7TJSkG3k

— Geert Van Calster (@GAVClaw) March 8, 2022

Many thanks indeed Hélène Péroz for flagging Sherpa & Les Amis de la terre France v Perenco ECLI:FR:CCASS:2022:C100199. The issue concerns what law applies to the issue of standing of NGOs in making recourse to France’s action for preserving evidence, in this case evidence relating to a future claim that France’s Perenco is liable for environmental damage in Congo.

The Court of Appeal had held that the issue of standing is subject to lex causae, which under the Rome II Regulation it had identified as the laws of Congo (whether this judgment included discussion of Article 7 Rome II on environmental damage, I do not know) and had declared the claim inadmissible.

The SC correctly in my mind holds that the issue of standing falls under the evidence and procedure carve-out of Rome II and is subject to lex fori, French law. However seeing as that law in the case of public interest litigation such as here requires the claimant to have included the broad purpose of the sector at issue within its scope of activities under its by-laws, the SC also holds that whether a particular claim is within the NGO’s scope, needs to be determined in accordance with its lex societatis.  This leads to the interesting conclusion (of little relevance in casu) that a foreign NGO’s action remit will have to be determined by foreign lex societatis, and that those foreign laws which have a less broad view of corporate scope, may put a spanner in the works of cross-border business and human rights litigation. (Quite easily circumvented one assumes by involving NGOs of an ‘attractive’ jurisdiction).

The SC nota bene does not specify whether its views on corporate (here: NGO) action radius are a result of the corporate carve-out in Rome II.

Geert.

EU Private International Law, 3rd ed. 2021, para 4.79 ff.

Must read this properly tomorrow for currently on cooking duty. (All under control. Nothing burning).
Potentially quite exciting. French SC on the applicable law for capacity to represent a (Congolese) NGO re a #bizhumanrights environmental claim. https://t.co/ZP4IxXAzWi

— Geert Van Calster (@GAVClaw) March 9, 2022

In Klifa v Slater & Anor [2022] EWHC 427 (QB), concerning a ski accident in Courchevel, France, the Claim Form was issued on 14 January 2021, just within the three year limitation period of England and Wales but just after the Brexit “Exit Day” also know as IP day (Brexit implementation day) (of 31 December 2020). Defendants take advantage of that to argue a forum non conveniens defence (which readers will know would have been impossible under Brussels Ia). France is suggested to be the ‘most appropriate forum’.

The skiing accident took place on 27 January 2018 and when (and as still is the case) the Claimant was domiciled and resident and habitually resident in France, the First Defendant was domiciled and resident (they being on holiday) in England & Wales, and the Second Defendant (the insurance company) was domiciled in England & Wales. Under Rome II, French law is the applicable law, other than for procedural law, including as to recovery of legal and other costs of the litigation, which is subject to English law, lex fori.

That latter element returns (with reference to ia Wall v Mutuelle de Poitiers) [25] as part of the forum non conveniens assessment, seeing as (Dagnall M) ‘in consequence of the difference in their methods of adducing expert evidence, the English & Welsh jurisdiction procedural approach is likely to be considerably more expensive than that in France, and which is reflected in the costs rules and approach of each country.’

At [40] Master Dagnall sums up the many issues leading to the case being very ‘French’ in nature, deciding on balance however [42] that the defendants have not met the (high hurdle) of proving that France is “distinctly” or “clearly” the more appropriate forum.

At [44] ff he holds obiter that even if they had met that test, a stay in favour of proceedings in France would not assist with “achieving the ends of justice”L the second part of the forum non test. At [48] two factors are singled out: enforcement will have to take place in England; and a lot of work prior to the claim form being issued was carried out prior to IP day, when forum non was not an issue. Recovering those costs would be impossible in France.

The point has been made ad nauseam by many and this case is a good illustration: post Brexit, forum non is back with a vengeance and it is a time-consuming and costly business.

Geert.

Evidence & procedure, quantification of damages under French law, impact on forum non conveniens (denied on the facts) in case of tort which occurred whilst Brussels Ia applied but with claim brought after Brexit
Klifa v Slater & Anor [2022] EWHC 427 (QB) https://t.co/xCfJYJws2f

— Geert Van Calster (@GAVClaw) March 8, 2022

The EAPIL founding conference is fast approaching! The conference will take place onsite in Aarhus on 2, 3 and 4 June 2022.

Those wishing to attend, are invited to register by 14 April 2022 at the latest. Please do so by filling the form available here. 

Registration fee is 100 Euros. Furthermore, you are very welcome to sign up for the conference dinner.

Law students without a final master degree in law can participate at a fee of 30 Euros (conference, including lunch and reception) and must register on the above link. If students wish to participate in the conference dinner, the separate conference dinner fee applies (see the registration link).

Participants who have previously chosen to transfer their registration/fee to the 2021 conference have been contacted directly by e-mail and offered to transfer their registration to 2022 or be reimbursed.

As there are other events in Aarhus during the days of the conference, it is strongly recommended that hotel reservations are made soon. Here are some suggestions in this regard.

The Max Planck Institute for Comparative Public Law and International Law (Heidelberg) and the Max Planck Institute for Comparative and International Private Law (Hamburg) are pleased to announce an intensive three- day seminar on “Populism and the New Foreign Relations Law: Between Public International Law, ‘External Public Law, and Conflict of Laws.”

The seminar will take place in Heidelberg on June 18-20, 2022, and will be co-directed by Prof. Anne Peters, Director, MPIL Heidelberg; Prof. Ralf Michaels, Director, MPI Hamburg; and Prof. Karen Knop, University of Toronto and Max Planck Law Fellow.

Costs for transportation (economy train or flight in Europe, lump sum for overseas), accommodation and meals in Heidelberg will be provided.

The seminar will host 20 Doctoral, Post-Doctoral and graduate researchers in law or other related fields. Application deadline: April 24, 2022

More information here.

Comparative Procedural Law and Justice (CPLJ) is a global project of the Max Planck Institute Luxembourg for Procedural Law, with the support of the Luxembourg National Research Fund (019/13946847), involving more than one hundred scholars from all over the world.

CPLJ is envisioned as a comprehensive study of comparative civil procedural law and civil dispute resolution schemes in the contemporary world. It aims at understanding procedural rules in their cultural context, as well as at highlighting workable approaches to the resolution of civil disputes.

In this framework, the Max Planck Institute Luxembourg for Procedural Law will host its 9th CPLJ Webinar on 1 April 2022, 3:00 – 5:00 pm (CET).

The programme reads as follows:

Russell Miller – Senior Research Fellow and Head of Max Planck Law, J.B. Stombock Professor of Law (W&L University – Virginia)

          Comparing Comparisons: A Survey of Approaches to Comparative Law

The webinar is an open event. For more information and to register see here.

(Image credits:  Rijksmuseum, Amsterdam)

The latest issue of the „Praxis des Internationalen Privat- und Verfahrensrechts (IPRax)“ features the following articles:

(These abstracts can also be found at the IPRax-website under the following link: https://www.iprax.de/en/contents/)

H.-P Mansel/K. Thorn/R. Wagner: European Conflict of Law 2021: The Challenge of Digital Transformation

This article provides an overview of developments in Brussels in the field of judicial cooperation in civil and commercial matters from January 2021 until December 2021. It gives information on newly adopted legal instruments and summarizes current projects that are presently making their way through the EU legislative process. It also refers to the laws enacted at the national level in Germany as a result of new European instruments. Furthermore, the authors look at areas of law where the EU has made use of its external competence. They discuss both important decisions and pending cases before the CJEU as well as important decisions from German courts pertaining to the subject matter of the article. In addition, the article also looks at current projects and the latest developments at the Hague Conference of Private International Law.

H. Wais: The Applicable Law in Cases of Collective Redress

Both the European and the German legislator have recently passed legislation aimed at establishing access to collective redress for consumers. As European conflict of law rules do not contain any specific rules on the applicable law in cases of collective redress, the existing rules should be applied in a way that enables consumers to effectively pursue collective actions. To that aim, Art. 4 (3) 1st S. Rome II-Regulation provides for the possibility to rely on the place of the event that has given rise to the damages as a connecting-factor for collective redress cases in which mass damages have occurred in different states. As a consequence of its application, all claims are governed by the same applicable law, thereby fostering the effectiveness of collective redress.

M. Lehmann: Locating Financial Loss and Collective Actions in Case of Defective Investor Information: The CJEU’s Judgment in VEB v BP

For the first time, the CJEU has ruled in VEB v BP on the court competent for deciding liability suits regarding misinformation on the secondary securities market. The judgment is also of utmost importance for the jurisdiction over collective actions. This contribution analyses the decision, puts it into larger context, and discusses its repercussions for future cases.

M. Pika: Letters of Comfort and Alternative Obligations under the Brussels I and Rome I Regulations

In its judgment of 25 November 2020 (7 U 147/19), the Higher Regional Court of Brandenburg ruled on special jurisdiction regarding letters of comfort under Article 7 No. 1 Brussels I Regulation. While the court left the decision between lit. a and lit. b of that Article open, it ruled that either way, the courts at the domicile of the creditor of the letter of comfort (in this case: the subsidiary) have no special jurisdiction. This article supports the court’s final conclusion. In addition, it assesses that Article 7 No. 1 lit. b Brussels I Regulation on services may apply to letters of comforts given the CJEU’s decision in Kareda (C-249/16).

B. Hess/A.J. Wille: Russian default interests before the District Court of Frankfort

In its judgment of February 2021, the Landgericht Frankfurt a.M., applying Russian law, awarded a three-month interest rate of 37% to a defendant domiciled in Germany. When examining public policy, the regional court assumed that there was little domestic connection (Inlandsbezug), as the case was about the repayment of a loan issued in Moscow for an investment in Russia. However, the authors point out that the debtor’s registered office in Hesse established a clear domestic connection. In addition, the case law of German courts interpreting public policy under Article 6 EGBGB should not be directly applied to the interpretation of Articles 9 and 21 of the Rome I Regulation.

D. Looschelders: Implied choice of law under the EU Succession Regulation – not just a transitional problem in connection with joint wills

The decision of the German Federal Supreme Court focuses on the question, under which conditions an implied choice of law may be assumed within the framework of the EU Succession Regulation (Regulation No 650/2012). In this particular case, an implied choice of German law as the law governing the binding effect of the joint will drawn up by the German testator and her predeceased Austrian husband was affirmed by reference to recital 39(2) of the EU Succession Regulation. Actually, the joint will of the spouses stipulated the binding effect as intended by German law. As the spouses had drawn up their will before the Regulation became applicable, the question of an implied choice of law arose in the context of transition. However, the decision of the German Federal Supreme Court will gain fundamental importance regarding future cases of implied choices of law for all types of dispositions of property upon death, too. Nevertheless, since the solution of the interpretation problem is not clear and unambiguous, a submission to the ECJ would have been necessary.

M. Reimann: Human Rights Litigation Beyond the Alien Tort Claims Act: The Crucial Role of the Act of State Doctrine

The Kashef case currently before the federal courts in New York shows that human rights litigation against corporate defendants in the United States is alive and well. Even after the Supreme Court’s dismantling of the Alien Tort Claims Act jurisdiction remains possible, though everything depends on the circumstances. And even after the Supreme Court’s virtual elimination of federal common law causes of action claims under state or foreign law remain possible, though they may entail complex choice-of-law issues.

Yet, so far, the most momentous decision in this litigation is the Court of Appeals’ rejection of the defendants’ potentially most powerful argument: the Court denied them shelter under the act of state doctrine. It did so most importantly because the alleged human rights abuses amounted to violations of jus cogens.

Coming from one of the most influential courts in the United States, the Second Circuit’s Kashef decision adds significant weight to the jus cogens argument against the act of state doctrine. As long as the Supreme Court remains silent on the issue, Kashef will stand as a prominent reference point for future cases. This is bad news for corporate defendants, good news for plaintiffs, and excellent news for the enforcement of human rights through civil litigation.

J. Samtleben: Paraguay: Choice of Law in international contracts

To date, Paraguay is the only country to have implemented into its national law the Hague Principles on Choice of Law in International Commercial Contracts. Law No. 5393 of 2015, which closely follows the Hague model, owes its creation primarily to the fact that the Paraguayan delegate to the Hague was actively involved in drafting the Principles. Unlike the Principles, however, Law No. 5393 also regulates the law governing the contract in the absence of a choice of law, following the 1994 Inter-American Convention on the Law Applicable to International Contracts of Mexico. Contrary to the traditional rejection of party autonomy in Latin America, several Latin American countries have recently permitted choice of law in their international contract law. Paraguay has joined this trend with its new law, but it continues to maintain in procedural law that the jurisdiction of Paraguayan courts cannot be waived by party agreement.