Agrégateur de flux

Confiscation

Isn’t it just a perfect exam question for a graduate course, nay this question involves so many issues it could arguably serve as one single exam for a whole law degree: such is the intensity of legal areas at issue: constitutional law, international law, international trade, regulatory law and risk analysis, intellectual property law…

Discuss why the Court of Appeal for England and Wales denied Government wrongdoing in plain packaging, while the German Bundesverfassungsgericht rejected an argument of expropriation in Energiewende yet held that German Government must nevertheless pay compensation to the energy companies involved (E.ON, RWE and Vatenfall).

Source tip: you may want to consult my former student Dr Catherine Banet’s excellent analysis on the Vatenfall issue.

Issues tip: a good way to go about it would be to draft a table of issues that both cases have in common and those which they do not (eg the Court of Appeal’s review of intellectual property). A discussion of the precautionary principle would not go amiss (in the plain packaging case: specifically whether precaution applies to uncertainty as to efficiency of remedies rather than uncertainty as to a phenomenon). A point of discussion may also be why the CA refers profusely to European precedent while the Bundesverfassungsgericht does not. Finally, any consideration of the link between the latter proceedings and the concurrent ISDS procedure, will gain you brownie points.

To fellow faculty out there: if you do use this exam Q, please do share good student answer copies.

Geert.

archa joint seminar of the Child & Family Law Quarterly and Cambridge Family Law

27 March 2017, at Trinity College, University of Cambridge

The withdrawal of the UK from the European Union will precipitate important change in the field of international family law. EU law has increasingly come to define key aspects of both jurisdiction and recognition & enforcement of judgments on divorce, maintenance, and disputes over children, including international child abduction, and provided new frameworks for cross-national cooperation. At this seminar, international experts and practitioners will discuss the impacts of ‘Brexit’ on family law, from a range of national and European perspectives, and reflect on the future of international family law practice in the UK.

Booking will open soon. CPD points will be available.

Please visit www.family.law.cam.ac.uk/ to join the Cambridge Family Law mailing list in order to receive an email when booking opens.

Tribunal d'instance du 15e arrondissement de Paris, 14 novembre 2016

Tribunal d'instance d'Aulnay-sous-Bois, 28 novembre 2016

Pourvoi c/ Cour d'appel de Poitiers, 3e chambre civile, 27 avril 2016

Pourvoi c/ Cour d'appel d'Aix-en-Provence, 16e chambre B, 18 mai 2016

Pourvoi c/ Cour d'appel de Colmar, chambre sociale, section B, 9 juin 2016

I have in the past reported fleetingly about the Trafigura litigation, in which the company is and has been pursued in various jurisdictions for the environmental and public health damage resulting from the dumping in Abidjan, Ivory Coast’s capita, of toxic waste originating from the Probo Koala. I discuss the corporate social responsibility implications of conflict of laws ia here.

The case has led ia to the so-called ‘Leigh Day settlement’ in the United Kingdom (representing 30.000 victims) and to a 2007 ‘Protocole d’Accord’ between Trafigura and Ivory coast.

Current judgment was issued on 30 November and involves Stichting Union des Victimes de Déchets Toxiques D`Abidjan et Banlieues, a foundation set up in accordance with Dutch law, claiming to represent victims not yet represented in the Leigh Day settlement.

The Dutch court first of all swiftly rejects any impact of the choice of court clause included in the 2007 protocol. This discussion could have been quite interesting, however the Court suffices with a reference to the narrow formulation of the clause. It refers to any and all issues arising out of the validity, application and interpretation of the agreement. The agreement being a contractual arrangement and the suit here being based on liability in tort, in an action started by victims not party to the agreement, the court at Amsterdam suffices with the remark that current case is evidently not covered by the clause.

This leaves aside the discussion on the merits with respect to that choice of court. The 2007 protocol was signed by Ivory Coast ‘for and on behalf of all victims of the toxic wastes’. Whether the State can legitimately bind all those victims, particularly since presumably not all of them are Ivory Coast nationals, requires a lex causae to settle. Were this to follow the Brussels I Recast rule (the case looks to have been introduced after January 2015), this would imply a discussion on the inclusion of choice of court ex-EU. Over and above that discussion, the Court at Amsterdam would then have to discuss whether perhaps ordre public protests against allowing a State to represent all victims in cases such as these.

Having dismissed (again, all too briefly) choice of court, the court subsequently upholds jurisdiction on the basis of Article 4 Brussels I Recast: the Dutch domicile of Trafigura Beheer BV.

In the remainder of the assessment of jurisdiction and standing, the Court applies Dutch law (de Stichting has been set up under Dutch law) and finds ultimately that the personal, business interests of its creator are not sufficiently split from the interests of the victims which the foundation purports to represent. The court adds that the Stichting would not seem properly to manage its documentation etc., leaving doubt as to whether it is properly equipped to attain its objective.

The suit is therefore dismissed on standing.

An interesting judgment to kick-start all sorts of issues of relevance to corporate social responsibility.

Geert.

(Handbook of) European Private International Law, 2nd ed. 2016, Chapter 2, Heading 2.2.9.2, Chapter 8, Heading 8.3.

I’ve come across this piece of news by Stacie I. Strong, and found it worth to be shared.

On Friday, the U.S. Supreme Court granted certiorari in Water Splash, Inc. v. Menon to address the question of whether the Hague Service Convention authorizes service of process by mail.

Click here to get to the initial submissions on whether the matter should be addressed by the SC.

Dans le cadre de l’introduction d’une demande d’octroi ou de renouvellement d’une licence d’une activité de service, le droit de l’Union s’oppose à l’exigence du paiement d’une redevance constituée en partie de coûts liés à la gestion et la police du régime de cette autorisation.

en lire plus

On 16 December 2016, the University of Verona will host a seminar held by Robert Bray – Head of Unit at the Secretariat of the European Parliament’s Committee on Legal Affairs – on The immunities of the Members of the European Parliament. Ruggiero Cafari Panico (Univ. Milan) will intervene as discussant. The flyer of the event is available here.

Il 16 dicembre 2016 l’Università degli Studi di Verona ospita un seminario di Robert Bray – capo unità del Segretariato della Commissione per gli Affari giuridici del Parlamento europeo – dedicato a Le immunità dei membri del Parlamento europeo. Interverrà come discussant Ruggiero Cafari Panico (Univ. Milano). Per maggiori informazioni si veda qui.

Brussels Ibis Regulation – Changes and Challenges of the Renewed Procedural Scheme – Short Studies in Private International Law,

is the title of a book just released, edited by Vesna Lazic and Steven Stuij.

The book focuses on major amendments introduced in the Brussels I regulatory framework. The contributions scrutenise the changes introduced in the Brussels Ibis Regulation, a legal instrument that presents a core of the unification of private international law rules on the European Union level. It is one of the first publications addressing all the changes in the Brussels I regulatory scheme, which takes into consideration relevant CJEU case law up to July 2016.
The texts, written by legal scholars who have published extensively in the field of private international law and international civil procedure, will add to the development of EU private international law. In addition, the authors’ critical analysis may open further discussions on the topic and so benefit a consistent and harmonised application of the Regulation. In this respect the book takes a different approach than the commentaries which have so far been published.
It is primarily meant for legal academics in private international law and practitioners who are regularly engaged in cross-border civil proceedings. It may also be of added value to advanced students and to those with a particular interest in the subject of international litigation and more generally in the area of dispute resolution.

Vesna Lazic is a Senior Researcher at the T.M.C. Asser Instituut, an Associate Professor of Private Law at Utrecht University and Professor of European Civil Procedure at the
University of Rijeka.
Steven Stuij is an expert in Private International Law and an external Ph.D. candidate at Erasmus School of Law, Rotterdam.