Agrégateur de flux

Written by Ekaterina Aristova, PhD in Law Candidate, University of Cambridge

On 14 October 2017, the London’s Court of Appeal passed its long awaited decision in Lungowe v Vedanta confirming that foreign citizens can pursue in England legal claims against English-based multinationals for their overseas activities.

In 2015, Zambian villagers commenced proceedings against Vedanta, an English-based mining corporation, and its indirect Zambian subsidiary, KCM, alleging responsibility of both companies for the environmental pollution arising out of the operation in Zambia of the Nchanga Copper Mine by KCM. In 2016, the High Court allowed claims against both companies to be heard in England. The overall analysis of the judgement (see the author’s earlier post on this blog) suggested that (1) claims against the parent company on the breach of duty of care in relation to the overseas operations of the foreign subsidiary can be heard in the English courts and (2) the existence of an arguable claim against the English-domiciled parent company also establishes jurisdiction of the English courts over the subsidiary even if the factual basis of the case occurs almost exclusively in the foreign state. The Court of Appeal has entirely upheld a High Court ruling.

Vedanta has focused their argument on the fact that Article 4 of the Brussels I Regulation Recast does not automatically allow an English-domiciled parent company to be sued in England and, despite the CJEU’s ruling in Owusu v Jackson, there is always discretion as to whether the English court should allow the claims to be tried in England. In response, the three appeal judges were very clear in confirming the univocal effect of Owusu decision which precludes English courts from declining a mandatory jurisdiction to try claims against the English-domiciled defendant. Logically, analysis further moved to KCM’s applications. KCM as a foreign defendant was brought into proceedings on the basis of a ‘necessary or proper party’ gateway under the English traditional rules of jurisdictions. It allows service out of the jurisdiction subject to two additional conditions: (1) there is between the claimant and English-domiciled defendant a real issue which it is reasonable for the court to try; and (2) England is the proper forum for trying the claims. Unsurprisingly, an initial question of whether uncustomary claims alleging liability of the local parent company for overseas damages are viable in England was a major stumbling block for the corporate defendants.

First of all, Lord Justice Simon, who delivered a leading judgement, confirmed that absence of the reported cases on the breach of duty of care by the parent company owed to the persons affected by its subsidiary’s operations does not automatically render such a claim unarguable. He then relied on several well-known English cases to derive basic principles for the imposition of such duty of care on the parent company: (1) The three-part test of foreseeability, proximity and reasonableness set out in Caparo Industries Plc v Dickman constitutes a starting point of the analysis; 2) A duty of care may be owed, in appropriate circumstances, to the employees of the parent company and those directly affected by the subsidiary’s operations; 3) Such a duty of care arises when the parent company has taken direct responsibility for devising a material health and safety policy the adequacy of which is the subject of the claim, or controls the operations which give rise to the claim; 4) Some of the circumstances in which the existence of the duty of care may, or may not, be established can be traced in Chandler v Cape and Thompson v The Renwick Group; 5) It is necessary to determine whether the parent company was well placed, because of its knowledge and expertise to protect the claimants; proving that parent company and the subsidiary run the same business is not sufficient; (6) The evidence sufficient to establish the duty may not be available at the early stages of the case. Following these principles, it was concluded that, irrespective of the strength or the weakness of the claim against the parent company (as opposed to the claim against the subsidiary as an operator of the mine) and in light of the supporting evidence already presented by the claimants, the claim against Vedanta cannot be dismissed as not properly arguable.

The Court of Appeal’s decision is particularly interesting for two reasons. The first issue relates to how its conclusions should be approached in the context of similar environmental litigation against English-based multinational in Okpabi v Shell. Earlier this year, Fraser J, sitting as a judge in the Technology and Construction Court, ruled that a claim against English-based parent company and the Nigerian subsidiary of the Shell group for oil pollution in Nigeria will not proceed in the English courts. The judge himself did not make any conclusions which would question the ultimate decision reached by the two instances in Lungowe v Vedanta. More importantly, his analysis fairly suggests that determination of the parent company liability should be approached on a case-by-case basis weighing the particular characteristics of the corporate organisation of the group and the nexus between the parent company and its subsidiaries (see the author’s earlier post on this blog). Nevertheless, the reasoning of Fraser J could be criticised for the scrupulousness of identifying whether sufficient evidence on each factor of the duty of care test was presented by the claimants at such an early stage of the proceedings. The jurisdictional inquiry into existence of an arguable claim against the parent company should not substitute the determination of the substantive argument and the trial itself. This approach was rightly emphasised by the Court of Appeal in Vedanta. By contrast, thorough analysis of the liability argument carried by Fraser J in Okpabi v Shell is arguably very close to the resolution of the case on the merits. The decision was appealed by the claimants, the Nigerian citizens, on these very grounds.

The second set of issues arises from the Court of Appeal’s reluctance to engage in the discussion of the regulatory significance of the litigation against major transnational corporations for their overseas operations in the English courts. In the course of appeal’s hearing Vedanta argued that allowing cases against English multinationals in their home state was not in the public interest. The judgement itself refrained to consider whether public interest factors have any impact on the jurisdictional inquiry in the disputes concerned with the private interests of the litigants. Therefore, foreign direct liability claims against powerful corporate groups were placed in the context of conventional theoretical public/private divide of the rules of private international law. The Parliament and the Government have at least twice engaged into discussion of the UK role in promoting responsibility and ensuring accountability of its companies in the course of 2009 and 2017 human rights and business inquiries. Further increase in the number of legal claims against English-based transnational corporations brought by the foreign citizens in the English courts may revive interest in the role of the discipline of private international law to take part in the global governance debate.

 

 

Une réglementation qui prévoit, en tant que critère d’admission à l’école de police, une taille physique minimale indépendamment du sexe peut constituer une discrimination illicite envers les femmes
Une réglementation qui prévoit, en tant que critère d’admission à l’école de police, une taille physique minimale indépendamment du sexe peut constituer une discrimination illicite envers les femmes

Susan Finder has an absolutely indispensable post on two recent initiatives over at the Chinese Supreme Court.

Firstly, the Supreme People’s Court is working on a judicial interpretation of the rules on recognition and enforcement of civil and commercial judgments. This follows the first such recognition from a judgment originating in the United States, Liu Li v. Tao Li and Tong Wu (2015) Yue Wuhan Zhong Min Shang Wai Chu Zi No.00026 – see professor Clarke’s review here. The recent conference at Wuhan which I reported on at my Twitter feed, shows the intensity of engagement of China with the Hague Judgments project.

Next, the SPC is engaging with a multitude of stakeholders to consider setting-up specialist mediation centres, with the examples of Dubai’s DIFC and Singapore’s ICC in mind, to smoothen the participation of foreign governments and companies in China’s Belt and Road initiative. Susan has great review of the implications of same.

Don’t forget to look to the East: Exciting stuff happening there.

Geert.

 

Les litiges visant à déterminer si une personne a été inscrite à juste titre en tant que titulaire d’une marque n’entrent pas dans le champ d’application de l’article 22, point 4, du règlement du 22 décembre 2000.

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I reported on Sharpston AG’s Opinion in C-413/15 Farrell just before the summer break. The case considers the C-188/89 Foster criteria on what constitutes an ’emanation from the state’, for Directives to potentially have direct effect in individuals’ relations with that body. The CJEU held last week, in Grand Chamber, and decided the criteria apply disjunctively, not conjunctively. It is sufficient that the private body concerned have special powers beyond those which result from the normal rules applicable to relations between individuals; it need not, additionally, be a body under control of the State.

The Irish legislature conferred on the MIBI (Motor Insurance Bureau of Ireland) special powers beyond those which result from the normal rules applicable to relations between individuals, in that, on the basis of that statutory provision, that private organisation has the power to require all those insurers to become members of it and to contribute funds for the performance of the task conferred on it by the Irish State.

A further and important piece in the jigsaw that is direct effect. Next up no doubt: what exactly are the boundaries of ‘special powers’. Conflicts lawyers may recognise some of the discussions surrounding ‘civil and commercial’.

Geert.

 

Selon la CEDH, constitue une expulsion collective d’étrangers contraire à la Convention, le renvoi immédiat vers le Maroc par l’Espagne d’un groupe de migrant sub-sahariens tentant de pénétrer sur son territoire.

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Le 12 octobre 2017, le tribunal de grande instance de Nanterre a rendu un jugement particulièrement attendu dans lequel il a débouté Salah Abdeslam. Ce dernier faisait, en effet, état d’une atteinte à sa vie privée survenue durant sa détention.

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Child Focus, the University of Antwerp, Center IKO, CFPE-Enfants Disparus, Missing Children Europe and the French Central Authority invite you to the final conference of their research project, EWELL, co-funded by the European Commission.

The project partners conducted a large scale research study on the psychological effects of  international child abduction on the well-being of abducted children. Their results will be presented at the final conference. This will be conbined with workshops on topics of psychology and law (including Brussels IIa).

The full programme is available here.

This conference is free of charge, but registration is required.

Travel and accommodation expenses will not be reimbursed.

 

Postdoctoral fellowships in commercial private international law / international commercial law are available at the Research Centre for Private International Law in Emerging Countries at the University of Johannesburg.

See the application form here.

The submission link is here.

The closing date is 31 October 2017.

For administrative enquires: Ms Dudu Mbatha rdmbatha@uj.ac.za

For academic enquiries: Prof Jan Neels jlneels@uj.ac.za

On Saturday, October 7, Professor Bertrand Ancel’s Éléments d’histoire du droit international privé , already presented here, was awarded the Prix du livre juridique at the Salon du livre juridique du Conseil Constitutionnel.

As Professor Ancel said in his thank you speech, Éléments d’histoire du droit international privé is the fruit of more than fifteen years of teaching in the history of private international law. Bertrand Ancel was an associate in private law and criminal sciences, specializing in civil law, comparative private law and private international law, but was not prepared to teach legal history. He has devoted himself to the writing of these Éléments out of passion for an area whose knowledge embraces both Greco-Roman Antiquity and the Middle Ages and the contemporary world. Written on the eve of the twenty-first century, the book is an extension of the great works in French by Armand Lainé, Eduard Maurits Meijers and Max Gutzwiller prior to the Second World War, to which Elements of History of Private International Law pays tribute. Thus aggregated, Éléments give an innovative view of the history of private international law.

Provided with appendices and an extensive bibliography, this work of more than six hundred pages allows to read “l’inlassable réflexion doctrinale et les leçons d’une expérience sans cesse renouvelée des cas concrets”. It is dedicated especially to master’s students to whom this reflection offers a look at the positive data – essentially case law- and doctrinal constructions. Without history, it remains difficult to understand all the subtleties of private law: “la démarche historique restitue l’expérience” and “l’histoire est ici encore plus qu’ailleurs l’antidote du dogmatisme et l’indispensable auxiliaire de qui entreprend de connaître le droit international privé d’aujourd’hui”. The reader will also find the most important judicial decisions and the most significant doctrinal comments.

Source: Université Paris II (Panthéon-Assas)

Pourvoi c./ Cour d'appel de Paris, Pôle 5, 31 mars 2017

Pourvoi c./ Cour d'appel de Paris, Pôle 2, 28 mars 2017

Cour d'appel de Paris, pôle 5, 27 mars 2017

Cour d'appel de Cayenne, chambre sociale, 28 novembre 2016

Tribunal des affaires de sécurité sociale de Dijon, ordonnance du 11 juillet 2017

Tribunal de Grande Instance d'Épinal, 03 octobre 2017

(I am grateful to Prof. Fabrizio Marongiu Buonaiuti for providing this presentation of the Macerata conference)

The European Documentation Centre (EDC) established at the Department of Law of the University of Macerata is hosting a Conference (in Italian) on Wednesday, 25th October 2017, as part of a programme of initiatives launched by the European Commission’s Permanent Representation to Italy for celebrating the 60th Anniversary of the Treaties of Rome: “60 anni di libertà di circolazione delle persone nell’Unione europea e continuità degli status familiari: la problematica delle unioni civili e delle convivenze” (60 Years of Freedom of Movement of Persons in the European Union and the Continuity of Family Status: Problems concerning Registered Partnerships and Cohabitation).

The Conference deals with the implications for the freedom of movement of persons within the EU of the problems related to the continuity of family status acquired abroad, with particular regard to registered partnerships and cohabitation. A discussion on this topic appears particularly timely, in consideration of the recent adoption by the Italian legislature of both the substantive regulation of registered parterships (unioni civili) and cohabitation (convivenze) under law No. 76 of 20 May 2016, and the relevant conflict of laws rules, as set out in Legislative Decree No. 7 of 19 January 2017. The parallel developments taking place at the European Union level will also be taken into consideration, with particular regard to the recent adoption, by the implementation of an enhanced cooperation, of Regulation (EU) No. 1104/2016, concerning jurisdiction, applicable law and the recognition and enforcement of judgments in matters of the property consequences of registered partnerships.

Here is the programme (available as .pdf; all presentations will be delivered in Italian):

Introductory remarks

• Prof. Francesco Adornato – Dean of the University of Macerata
• Prof. Ermanno Calzolaio – Director of the Department of Law

Ist Session: Freedom of Movement of Persons and Continuity of Personal and Family Status

Chair: Prof. Angelo Davì, University of Rome “La Sapienza”

• Registered Partnerships and Freedom of Movement of Persons in the European Space of Freedom, Security and Justice – Prof. Claudia Morviducci, University of Rome III
• European Guarantees and Rules concerning Continuity of Status as concerns Same-Sex Marriages and Registered Partnerships – Prof. Francesco Salerno, University of Ferrara
• Italian Conflict of Laws Rules concerning Registered Partnerships under Legislative Decree No. 7 of 19 January 2017 – Prof. Cristina Campiglio, University of Pavia
• Private International Law Rules concerning the Property Consequences of Registered Partnerships under Regulation (EU) No. 1104/2016 – Prof. Gian Paolo Romano – University of Geneva

Discussion

2nd Session: The Substantive Regulation of Registered Partnerships and Cohabitation in the Italian Legal System and Unsolved Problems

Chair: Prof. Enrico del Prato, University of Rome “La Sapienza”

• The Substantive Regulation of Same-Sex Registered Partnerships under Law No. 76 of 20 May 2016 – Prof. Michele Sesta, University of Bologna
• The Substantive Regulation of Cohabitation under Law No. 76 of 20 May 2016 – Prof. Ubaldo Perfetti, University of Macerata
• Adoption by Partners of Registered Partnerships – Prof. Enrico Antonio Emiliozzi, University of Macerata
• Problems Concerning the Registration of Partnerships Created Abroad in the Italian Civil Status Records – Dr. Renzo Calvigioni – National Association of Civil Status Officials

Discussion

Concluding Remarks

Thank you Jeffrey Neuburger for flagging Wiseley v Amazon. Jeffrey has excellent overview and analysis so I will suffice with identifying a few tags: the issue of click-wrap agreements (when does one agree to GTCs contained in pop-ups and hyperlinks and the like); application of a putable law to a contract (the von Munchausen or ‘bootstrap’ principle); comparative dispute resolution law: how would EU law look at the issues? Have fun.

Geert.

 

La garde des Sceaux est intervenue lors du congrès annuel organisé par l’union syndicale des magistrats (USM) le 13 octobre 2017.

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La garde des Sceaux est intervenue lors du congrès annuel organisé par l’union syndicale des magistrats (USM) le 13 octobre 2017.

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