Conflictoflaws

Anniversary! On Tuesday, June 1, 2021, the Hamburg Max Planck Institute will host its 11th  monthly virtual workshop in private international law at 11:00-12:30 – one year after the first such session! Since January of this year, we are alternating between English and German language. Tania Domej (Zurich University) will speak, in German, about the topic Cross-Boundary Collective Actions in the EU The presentation will be followed by open discussion. All are welcome. More information and sign-up here. This is the eleventh such lecture in the series, after those by Mathias Lehmann in June 2020, Eva-Maria Kieninger in July, Giesela Rühl in September, Anatol Dutta in October, Susanne Gössl in November, Marc-Philippe Weller in December, Macjiej Szpunar in January,  Dagmar Coester-Waltjen in February, Horatia Muir Watt in March, Burkhard Hess in April, and Marta Pertegás Sender in May. On July 6,  we will host Hannah Buxbaum (Indiana University). Stay tuned! If you want to be invited to these events in the future, please write to veranstaltungen@mpipriv.de

The Rechtbank Den Haag, by judgment of 26 March 2021 – Milieudefensie et al. v. Royal Dutch Shell, ordered RDS, both directly and via the companies and legal entities it commonly includes in its consolidated annual accounts and with which it jointly forms the Shell group, to limit or cause to be limited the aggregate annual volume of all CO2 emissions into the atmosphere due to the business operations and sold energy-carrying products of the Shell group to such an extent that this volume will have reduced by at least net 45% at end 2030, relative to 2019 levels.

This landmark case relies, inter alia, on the following choice of law analysis:

4.3.

Applicable law

4.3.1.Milieudefensie et al. principally make a choice of law within the meaning of Article 7 Rome II35, which according to Milieudefensie et al. leads to the applicability of Dutch law. Insofar as the choice of law of Article 7 Rome II does not lead to the applicability of Dutch law, Milieudefensie et al. claim in the alternative that the applicable law must be determined based on the general rule of Article 4 paragraph 1 Rome II. According to Milieudefensie et al., this general rule also leads to the applicability of Dutch law.

4.3.2.Article 7 Rome II determines that the law applicable to a non-contractual obligation arising out of environmental damage or damage sustained by persons or property as a result of such damage shall be the law determined pursuant to the general rule of Article 4 paragraph 1 Rome II, unless the person seeking compensation for damage chooses to base his or her claim on the law of the country in which the event giving rise to the damage occurred. The parties were right to take as a starting point that climate change, whether dangerous or otherwise, due to CO2 emissions constitutes environmental damage in the sense of Article 7 Rome II. They are divided on the question what should be seen as an ‘event giving rise to the damage’ in the sense of this provision. Milieudefensie et al. allege that this is the corporate policy as determined for the Shell group by RDS in the Netherlands, whereby her choice of law leads to the applicability of Dutch law. RDS asserts that the event giving rise to the damage are the actual CO2 emissions, whereby the choice of law of Milieudefensie et al. leads to the applicability of a myriad of legal systems.

4.3.3.

The choice as laid down in Article 7 Rome II is justified with a reference to Article 1919 TFEU (Article 174 TEC), which prescribes a high level of protection.36 Both Milieudefensie et al. and RDS refer to the handbook by Von Hein. The complete entry for event giving rise to the damage in the sense of Article 7 Rome II reads as follows:

“Where events giving rise to environmental damage occur in several states, it is not possible to invoke the escape clause (Article 4(3 )) in order to concentrate the applicable law with regard to a single act. Thus, the plaintiff may opt for different laws as far as acts by multiple tortfeasors acting in various states are concerned. If, however, an act in country A causes an incident in country B which then leads to an environmental damage in country C, it may be submitted that only the final incident should be characterized as the decisive ‘event’ within the meaning of Article 7. One has to concede that extending the victim’s right to choose the law, of each place of act would considerably undermine legal predictability. On the other hand, such generous approach would fit the favor naturae underlying Article 7. Since the tortfeasor may be sued in country A under Article 7 no. 2 Brussels Ibis, extending the victim’s option will also facilitate proceedings.” 37

4.3.4.

The Court of Justice of the European Union (CJEU) has made no declaration on the ‘event giving rise to the damage’ in the sense of Article 7 Rome II. The court sees insufficient basis in the interpretation of this provision to seek a link with the CJEU rulings as cited by the parties on other principles of liability, some of which are subject in Rome II to specific choice-of-law rules (intellectual property rights, unlawful competition, and product liability and prospectus liability).38 Nor does the court see a basis to seek a link with the case law cited by RDS, in which it was determined that a purely internal decision cannot be designated as an injurious event.39

The published corporate policy that RDS draws up for the Shell group, which was also discussed with the shareholders, and to which the claims of Milieudefensie et al. pertain, cannot be equated with this. The court also sees insufficient grounds to seek a link with the cases cited by RDS, in which parent companies were called to account for non-intervention in subsidiaries.40 A parallel with the law applicable to a participant in an unlawfully committed act perpetrated in concert (product liability) does not hold water due to the below-mentioned characteristics of the responsibility as regards environmental damage and imminent environmental damage, as raised in this case.

4.3.5.An important characteristic of the environmental damage and imminent environmental damage in the Netherlands and the Wadden region, as raised in this case, is that every emission of CO2 and other greenhouse gases, anywhere in the world and caused in whatever manner, contributes to this damage and its increase. It is not in dispute that the CO2 emissions for which Milieudefensie et al. hold RDS liable occur all over the world and contribute to climate change in the Netherlands and the Wadden region (see also below under 4.4 (2)). These CO2 emissions only cause environmental damage and imminent environmental damage in conjunction with other emissions of CO2 and other greenhouse gases for Dutch residents and the inhabitants of the Wadden region. Not only are CO2 emitters held personally responsible for environmental damage in legal proceedings conducted all over the world, but also other parties that could influence CO2 emissions. The underlying thought is that every contribution towards a reduction of CO2 emissions may be of importance. The court is of the opinion that these distinctive aspects of responsibility for environmental damage and imminent environmental damage must be included in the answer to the question what in this case should be understood as ‘event giving rise to the damage’ in the sense of Article 7 Rome II.

4.3.6.

Milieudefensie et al. hold RDS liable in its capacity as policy-setting entity of the Shell group (see below under 4.4. (1.)). RDS does contest that its corporate policy for the Shell group is of may be of influence on the Shell group’s CO2 emissions. However, RDS pleads for a restricted interpretation of the concept ‘event giving rise to the damage’ in the application of Article 7 Rome II. In its view, its corporate policy is a preparatory act that falls outside the scope of this article because in the opinion of RDS, the mere adoption of a policy does not cause damage.

The court holds that this approach is too narrow, not in line with the characteristics of responsibility for environmental damage and imminent environmental damage nor with the concept of protection underlying the choice of law in Article 7 Rome II. Although Article 7 Rome II refers to an ‘event giving rise to the damage’, i.e. singular, it leaves room for situations in which multiple events giving rise to the damage in multiple countries can be identified, as is characteristic of environmental damage and imminent environmental damage. When applying Article 7 Rome II, RDS’ adoption of the corporate policy of the Shell group therefore constitutes an independent cause of the damage, which may contribute to environmental damage and imminent environmental damage with respect to Dutch residents and the inhabitants of the Wadden region.

4.3.7.Superfluously, the court considers that the conditional choice of law of Milieudefensie et al. is in line with the concept of protection underlying Article 7 Rome II, and that the general rule of Article 4 paragraph 1 Rome II, upheld in Article 7 Rome II, insofar as the class actions seek to protect the interests of the Dutch residents, also leads to the applicability of Dutch law.

The full text of the English version of the judgent is available here.

 

 

The Mexican Academy of Private International and Comparative Law (AMEDIP) is holding a webinar on 27 May 2021 at 1 pm (Mexico City time – CDT), 8 pm (CEST time). The topic of the webinar is the 25th anniversary of the Mexican Journal of Private International Law, a contribution to the national doctrine (in Spanish). Among the speakers are: Alejandro Ogarrio Ramírez-España, Carlos Novoa Mandujano, Jorge Alberto Silva Silva, José Carlos Fernández Rozas, Eduardo Picand Albónico and Leonel Pereznieto Castro.

This journal may be accessed by clicking here.

The details of the webinar are:

Link:  https://us02web.zoom.us/j/89448167313?pwd=Vi81L2tVZTJRa2NPVzVQQlFrRTNuUT09

Meeting ID: 894 4816 7313

Password: BMAAMEDIP

Participation is free of charge.

This event will also be streamed live: https://www.facebook.com/AmedipMX

written by Nicolás Zambrana-Tévar LLM(LSE) PhD(Navarra), Associate Professor KIMEP University (Kazakhstan), n.zambrana@kimep.kz

Some months ago I commented here about an interlocutory ruling of September 2019, issued by the First Instance Court of Palma de Mallorca (Spain). The ruling stayed proceedings commenced by Central Santa Lucía L.C., a US corporation, against Meliá Hotels International S.A., on grounds of sovereign immunity. The court ruled that although the defendant was a Spanish legal entity, the basis of the claim entirely depended on a declaration that the nationalization of the land formerly owned by the claimants’ predecessors in Cuba had been contrary to international law.

In March 2020, the Court of Appeal of Mallorca overturned the abovementioned interlocutory ruling and established the jurisdiction and competence of Spanish courts. The Court of Appeal found that the Cuban state was not a defendant in the proceedings, and neither was Gaviota S.A., a Cuban corporation owned by the Cuban state and the current owner of the expropriated land. Although the Court of Appeal admitted that any right to compensation for the allegedly illicit or unjustified enrichment of Meliá Hotels depended upon the illegality of the nationalization program introduced by Cuban Law 890 of 13 October 1960, the fact remained that the only defendant in the proceedings was a non-sovereign legal entity incorporated in Spain. Meliá Hotels argued that under the UN Convention on Jurisdictional Immunities of States and Their Property of 2004 it was not necessary that the claim be addressed to a foreign state; it was enough that the proceedings were meant to harm the interests, rights or activities of the foreign state. The Court of Appeal was not convinced and insisted that under Spanish Organic Law 16/2015 it was necessary that the proceedings had commenced against a foreign state or that measures had been requested against the property of the foreign state, in enforcement proceedings.

The Court of Appeal discussed several past rulings where Spanish courts had had an opportunity to deal with the effects of the nationalizations which followed the Cuban revolution of 1959. From this series of cases arises the doctrine that even where Spain and Cuba had entered into a lump sum agreement in 1986, whereby Cuba agreed to pay the Spanish Government a fixed amount as compensation for all Spanish nationals affected by the expropriation program, the rights of those Spanish nationals were not extinguished and might be raised again before the present or future Cuban Governments (Supreme Court Ruling of 10 December 2003). Moreover, although Spanish courts could not control the legality of the expropriations, they could indeed assess such legality in so far as it may be necessary to determine their private law effects in Spain (Supreme Court Ruling of 25 September 1992).

The Court of Appeal also disagreed with the Court of First Instance in another respect. The latter had found that, regardless of the issue of sovereign immunity, Spanish courts did not have jurisdiction to hear claims concerning property rights over immovable assets located outside Spain. The Court of Appeal found that EU Regulation (EU) No 1215/2012 (Brussels I) was applicable despite the fact that the asset was situated in Cuba, i.e. outside the territory of the European Union. However, the Court of Appeal found that these proceedings did not have as their object a right in rem in immovable property. Instead, the claimants were exercising a right in personam to obtain monetary compensation. In this regard, the court mentioned that under Article 2 of Regulation (EC) No 864/2007 (Rome II), the concept of damage includes unjust enrichment. Therefore, Spanish courts had jurisdiction as the defendant corporation was domiciled in Spain.

Months afterwards, Meliá Hotels applied for a new stay of the proceedings, alleging that Central Santa Lucía was not the real successor of the original owners of the land in Cuba but an entity exclusively created for the purposes of obtaining compensation for the Cuban expropriations and that the claim was an attempt to circumvent Council Regulation (EC) No 2271/96, a “blocking statute” protecting against the effects of the extra-territorial application of legislation adopted by a third country. That is, Central Santa Lucía was trying to hide what was actually a claim indirectly based upon the Helms–Burton Act and from which the blocking statute was trying to shield European companies. The First Instance Court found that Central Santa Lucía seemed to have commenced proceedings in the US under the abovementioned US statute but that the current litigation in Spain did not derive from those proceedings nor could have any incidence on them. Furthermore, in the Spanish proceedings the Helms-Burton Act would not be applied and would not be taken into account.

Next, Meliá Hotels applied for a mandatory joinder (litisconsorcio pasivo necesario), requesting that the Cuban State be joined to the proceedings. The Court of First Instance ordered the joinder drawing on its own arguments in the earlier ruling where it had established its lack of jurisdiction on the basis of the sovereign immunity of Cuba. The court indicated that Central Santa Lucía claimed that Meliá Hotels had unjustifiably or illegitimately enriched itself by exploiting the expropriated land and that the examination of the illegality of such expropriation necessarily called for the participation of Cuba in the proceedings because any right of the claimants depended upon a declaration of the Spanish courts that the land was being illegitimately held by Cuba or, rather, by Gaviota S.A. It was wrong, the court seemed to say, to analyse the legitimacy of the acquisition of property without listening to the party who had carried out that act of acquisition. It was also impossible to recognize the original property right of Central Santa Lucía, a right which was in opposition to the present property rights of Cuba, without allowing Cuba to be heard in that respect. For these reasons, not only the State of Cuba but Gaviota S.A. had to be brought in as co-defendants with Meliá Hotels.

Finally, the Court of First Instance issued a new interlocutory decision last 3 May, where it established that it had no jurisdiction to hear the claim because now one of the defendants is a foreign sovereign state. The Office of the Prosecutor was also of the same opinion. The Spanish Ministry of Foreign Affairs had also filed a report indicating that the act of nationalization was an act iure imperii and that the Cuban State enjoyed immunity for that reason. However, the ministry added that any contractual relationships between Meliá Hotels and Gaviota S.A. could be the subject matter of civil proceedings in Spain. The Court of First Instance relied much on its own ruling of September 2019 but it also drew on its own mandatory joinder of November 2020, insisting that any decision of the Spanish courts concerning the right of Central Santa Lucía to be compensated by Meliá Hotels would involve analysing the act of acquisition as well as the property rights of the Cuban State and Gaviota S.A. This was the reason why the latter had been joined and were now co-defendants, one of whom – Cuba – was a foreign sovereign which enjoyed immunity from jurisdiction. Since it was impossible to separate the analysis of the jurisdiction of the Spanish court from that of the claim against Meliá Hotels, the proceedings had to be stayed against all parties. Finally, the Court of First Instance mentioned that although Cuba had not made an appearance in the proceedings after being named as a defendant, that could not be interpreted as tacit submission under Spanish law.

The Court of First Instance does not seem to be aware of the “Catch 22” type of decision it has made. On the one hand the claim could not be heard because Central Santa Lucía had not brought Cuba in as a co-defendant. On the other hand, now the Spanish court does not have jurisdiction precisely because Central Santa Lucía has brought a sovereign defendant into the proceedings, further to the mandate of the same court, at the request of the primary defendants.

The Court of First Instance also seems to have given a lot of weight to the fact that if it decided that the nationalization had been illegal, that would have affected the property rights of Cuba over the nationalized land. This is obviously not the case, precisely because Spain does not have any kind of enforcement jurisdiction over property located in Cuba. As the abovementioned Supreme Court ruling of 25 September 1992 indicated, even if Spanish courts cannot control the legality of the Cuban expropriations, they can indeed draw certain consequences from their illegality, provided that those consequences are of a private law nature and are limited to the Spanish territory.

As it was mentioned in my first post, the Spanish Court also seems to have confused immunity from jurisdiction with the act of state doctrine – which has no place in the Spanish legal system –, mentioning once and again that the acts of nationalization of the Cuban State are protected when, in fact, the only one protected is Cuba itself, but this protection is restricted to certain types of acts.

Although this ruling of 3 May may be appealed, the exiled Cubans are running out of options, especially now that two years have elapsed since the Helms-Burton act was activated without much to show for. Title III lawsuits continue to face legal obstacles and conflicting rulings by US courts. The growing body of case law is, nevertheless, clarifying the conditions concerning the right of action of the claimants, which must be based on their standing and on the knowledge that defendants had about the confiscated nature of the property.

Maybe the best option for the Cuban community in the US is not to hope for a full implementation of the Helms-Burton act but to lobby for a lump-sum agreement between Cuba and the US, similar to the agreement between Cuba and Spain of 1986. The diplomatic opening that commenced with President Obama would have been a good start for that but there are doubts that President Biden wants to push forward in the same direction, given the communist island’s poor human rights record. Still, Venezuela, the oil rich and long standing ally of the Castro brothers is now in a state of such turmoil that Cuba may feel the need to make concessions.

The Hague Conference on Private International Law (HCCH) and the World Intellectual Property Organization (WIPO) have just launched a questionnaire that aims to identify problems of private international law, from jurisdiction to enforcement, relating to disputes involving intellectual property. The questionnaire is adressed to the member states of both organisations and other intergovernmental organisations as well as to individual practitioners, academics and other interested parties. It will inform the future work of both organisations on the intersection between PIL and IP.

The English version of the questionnaire can be found here; further information can be found here and here. Readers of this blog with an expertise and/or interest in IP are warmly invited to participate before the end of the consultation on 30 June 2021.

 

Back in January, we reported about the Opinion presented by AG Campos Sánchez-Bordona in the case CNP, C-913/19. At the request of the Court, the Opinion addressed only the second preliminary question on the branch jurisdiction under the Brussels I bis Regulation. This Thursday the Court delivered its judgment, which answers the second as well as two other (first and third) questions of the referring court, pertaining to the jurisdiction in matters of insurance.

The outline of the factual and legal contexts of the case can be consulted in the previous post. Remarks on the EU legal framework of relevance for the issues raised by the present case were made by Geert Van Calster and they should still be a point of consideration for those wishing to delve thoroughly into these issues.

Factual context in the main proceedings

In brief summary, an owner of a vehicle damaged in a road accident occurred in Poland assigns the claim against a Danish insurer covering, under a motor liability insurance, the liability of the person responsible for the accident to an automobile repair workshop, which provides a replacement vehicle to the assignor. Subsequently, the automobile repair workshop assigns that claim to CNP, a liability limited company established in Poland.

In its attempts to obtain the payment corresponding to the rental amount for the replacement vehicle, CNP is interacting with two companies established in Poland that represent the interests of the insurer in this Member State, namely Polins and Crawford Polska.

Failing to obtain full payment of the rental amount, CNP brings an action against the Danish insurer before a Polish court. The insurer argues that the claim should be rejected due to the lack of jurisdiction of the Polish court. The national court decides to refer three question for a preliminary ruling.

Jurisdiction in matters relating to insurance and assignment of claims

At the outset the Court clarifies that it deems it appropriate to examine together the first and third questions by which, as the Court puts it, the referring courts asked, in essence, whether Article 13(2) the Brussles I bis Regulation, read in conjunction with Article 10 thereof, must be interpreted as precluding jurisdiction being founded independently under Article 7(2) or Article 7(5) of that Regulation in the case of a dispute between, on the one hand, a professional which has acquired a claim originally held by an injured party against a civil liability insurer and, on the other hand, this insurer.

It seems that the referring court invited the Court to examine whether an action can, as to its substance, fall within the scope of the Section 3 (“matters relating to insurance”), yet the applicant bringing that action and being a professional is barred from relying on the rules on jurisdiction of the Section 2 (as an action in matters relating to insurance is covered exclusively by the Section 3), namely on Article 7(2) and (5) of the Brussels I bis Regulation.

After reminding that an entity that recovers claims from insurance undertakings has to be considered as a professional in insurance sector (paragraph 43), the Court examines whether such professional is barred from relying on Articles 7(2) and (5) of the Brussels I bis Regulation and answers this question in the negative (paragraph 46).

On a side note, as previously hinted, in the present case, the claim was first assigned to the repair workshop and then by this repair workshop to CNP. The latter sought to build up upon this particularity an argument in its favour in the proceedings pending before the Polish court.

While the particularity in question, which distinguishes the present case from the case Hofose (where the owner of the damaged vehicle assigned the claim against the insurer directly to the applicant in the main proceedings), is not reflected in the wording of the preliminary questions, the Court does seem to hint it the presentation of these questions (“claim originally held by an injured party”, paragraph 29). However, it seems to be of no relevance as “no special protection is justified where the parties concerned are professionals in the insurance sector, neither of whom may be presumed to be in a weaker position than the other” (paragraph 40). Besides, the request for a preliminary ruling arose out of the proceedings to which the repair workshop is not a party.

Notion of “branch, agency or other establishment”

By its second question, the referring court asked, in essence, whether Crawford Polska must be regarded as being a “branch, agency or other establishment” within the meaning of Article 7(5) of the Brussels I bis Regulation.

Against this background, just as AG in his Opinion, the Court had to establish which of the two companies representing the insurer’s interests in Poland (Polins or Crawford Polska) is the relevant entity for the purposes of Article 7(5) of the Brussels I bis Regulation (see points 53 – 58 of the Opinion). The Court held that referring court is seeking guidance about the scope of this provision in the light of the activity of Crawford Polska, this company had been “instructed by [the insurer] to adjust the claim at issue in the main proceedings” (paragraph 53).

In line with the Opinion, the Court considered that an undertaking which adjusts losses in the context of motor liability insurance in one Member State pursuant to a contract concluded with an insurance undertaking established in another Member State, in the name and on behalf of that undertaking, must be regarded as being a branch, agency or other establishment, within the meaning of that provision, where that undertaking:

• has the appearance of permanency, such as an extension of the insurance undertaking; and
• has a management and is materially equipped to negotiate business with third parties, so that they do not have to deal directly with the insurance undertaking (paragraph 61).

On a side note, in its request for a preliminary ruling, the referring court sought to establish whether the Directive 2009/138/EC on the taking-up and pursuit of the business of Insurance and Reinsurance (Solvency II) may impact the interpretation of the notion of “branch, agency or other establishment” within the meaning of Article 7(5) of the Regulation.

In this regard, the Court notes that the interpretation of the latter must be performed in an independent manner (paragraph 60). The judgment echoes therefore the case law built up upon the judgment in Kainz, C-45/13, paragraph 20 (Brussels I Regulation/Rome II Regulation), and brings to mind in particular the judgment in Pillar Securitisation, C-694/17, paragraph 35 (Lugano II Convention / Directive 2008/48/EC on credit agreements for consumers).

The judgment, which is also the subject of a press release, can be consulted here.

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Posted at the request of Aastha Asthana, Managing Editor, Trade Law and Development

CALL FOR SUBMISSIONS

General Issue

Issue 13.2 | Winter ’21

The Board of Editors of Trade, Law and Development is pleased to invite original, unpublished
manuscripts for publication in the Winter ’21 Issue of the Journal (Vol. 13, No. 2) in the form of
‘Articles’, ‘Notes’, ‘Comments’ and ‘Book Reviews’.

Founded in 2009, the philosophy of Trade, Law and Development has been to generate and sustain a
constructive and democratic debate on emergent issues in international economic law and to serve
as a forum for the discussion and distribution of ideas. Towards these ends, we have published
works by noted scholars such as WTO DDG Yonov F. Agah, Dr. Prof. Ernst Ulrich Petersmann,
Prof. Steve Charnovitz, Prof. Petros Mavroidis, Prof. Mitsuo Matsuhita, Prof. Raj Bhala, Prof. Joel
Trachtman, Gabrielle Marceau, Simon Lester, Prof. Bryan Mercurio, and Prof. M. Sornarajah
among others. TL&D also has the distinction of being ranked the best journal in India across all
fields of law for seven consecutive years by Washington and Lee University, School of Law.

Manuscripts received by August 1st, 2021, pertaining to any area within the purview of international
economic law will be reviewed for publication in the Winter ’21 issue.

Manuscripts may be submitted via e-mail. For further information about the Journal, please
click here. For submission guidelines, please click here.

In case of any queries, please feel free to contact us at: editors[at]tradelawdevelopment[dot]com.

 

LAST DATE FOR SUBMISSIONS: 01 AUGUST, 2021

 

PATRON: P.P. Saxena | ADVISORS: Raj Bhala | Jagdish Bhagwati | B.S. Chimni | Glenn
Wiser | Daniel B. Magraw, Jr. | Vaughan Lowe | Ricardo Ramirez Hernandez | W.
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EDITORS: Amogh Pareek | Sahil Verma | Sukanya Viswanathan| Aastha Asthana|
Abilash Viswanathan| Malaika Shivalkar | Nishant Sharma | Pranav Karwa | Rashmi
John | Swikruti Nayak | Akshita Saxena | Ananya Awasthi | Anushka Mathur | Jahnavi
Srivastava | Khushi Agrawal | Maulik Khurana | Nidhi Lakhotia | Ria Chaudhary |
Yashvi Hora | Aarzoo Gang | Anoushka | Lipika Singla | Priyanshu Shrivastava | Simran
Bherwani | Sneha Naresh | Vipashyana Hilsayan

 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 5th CPLJ Webinar on 4 June 2021, 4:00 – 6:15 pm (CET).

The programme reads as follows:

Chairs:  Margaret Woo (Northeastern University and CPLJ Editor) and Burkhard Hess (Max Planck Institute Luxembourg for Comparative Procedural Law and CPLJ Editor)

4:00 PM          Ralf Michaels (Max Planck Institute Hamburg for Comparative and International Private Law)

            Decoloniality and Comparative Civil Procedure

4:30 PM          Discussion

5:00 PM          Intermission

5:15 PM          John Haley (University of Washington)

            Historical and Political factors Influencing Dispute Resolution

5:45 PM          Discussion

6:15 PM          End of conference

The full programme is available here.

Participation is free of charge, but registration is required by 1 June 2021 via a short e-mail to events@mpi.lu.

(Image credits:  Rijksmuseum, Amsterdam)

 

The Nigerian Group on Private International Law (“NGPIL”) will hold its inaugural lecture on June 21, 2021 at 6pm CEST and 5pm BST. Registration and attendance online is free. For more information on the programme and registration  see the  NGPIL flyer and the NGPIL inaugural programme.

 

The Organization of American States (OAS) is organizing a virtual forum as noted in the poster above. It will take place on Monday 24 May 2021 at 11 am (Washington USA time). For more information, click here.

This event will be held in Spanish only and is free of charge. The event will also be streamed live via social media networks.

This event follows an important and recent milestone of the OAS in which the Inter-American Juridical Committee completed its 98th Regular Session approving the Principles on Privacy and Protection of Personal Data and Supporting the Hague Principles on the Choice of Law Applicable to International Commercial Contracts. Click here for the specific resolution (9 April 2021) and here for general information.

In February 2019, the Inter-American Juridical Committee adopted the “Guide on the Law Applicable to International Commercial Contracts in the Americas.”

The preliminary programme for the TMC Asser Institute Masterclass on investing in English speaking Africa through private international law is now out.

During a two-day masterclass Chukwuma Okoli from the TMC Asser Institute will be joined by experts in the field of private international law such a Dr Pontian Okoli, lecturer in Private International Law and Commercial Law at the University of Stirling, Scotland, Professor Elsabe Schoeman, Dean of the Faculty of Law at the University of Pretoria, South Africa, Richard Frimpong Oppong, Associate Professor a the University of Bradford School of Law, and Anthony Kennedy, Associate Member of Serle Court Chambers in London.

 

These professionals will offer you theoretical and practical insights into commercial law, private international law and transnational litigation. Among other topics, they will discuss the questions of jurisdiction, choice of court agreements, foreign currency obligations, and recognition and enforcement of foreign judgments. Knowledge of these topics in English-speaking Africa is essential for effective investment, as the number of international commercial transactions on the continent grows.

 

For more information please visit the event page.

 

Relevance for investment

Africa’s population is approximately one billion people, and its growing population is expected to reach nearly 2.2 trillion dollars in consumer spending by 2030. The recent African Continental Free Trade Area (AfCTA) Agreement seeks to create free movement of persons, goods and services within the African Union. This has accentuated the role of private international law in resolving potential cross-border disputes involving international commercial actors. Lawyers, judges, arbitrators and other stakeholders will have to gain advanced knowledge of the specific operation of private international law in the African context.

 

PO points

Dutch lawyers can obtain 10 PO points for their attendance.

 

About the masterclass series

Lifelong learning is essential for those engaged in today’s legal and business world. The Asser Academy Masterclass series are short courses tailored to professionals who wish to deepen their knowledge, stay up-to-date and remain competitive by mastering skills the global market needs. The Asser Academy Masterclass series will combine the cutting-edge knowledge of academia with the hands-on experience of practitioners.

 

Date: 24 – 25 June 2021

Fee: €995,- €745,-(IJI and Asser clients),- €495,-(Students and NGO-workers)

Venue: Online

Organiser: T.M.C. Asser Instituut

The latest issue of RabelsZ has just been published. It features the following articles:

Horst Eidenmüller: Recht und Ökonomik des Extremsport-Sponsorings in vergleichender Perspektive, Volume 85 (2021) / Issue 2, pp. 273-325 (53), DOI: 10.1628/rabelsz-2021-0002

The Law and Economics of Extreme Sports Sponsoring in Comparative Perspective. – This article investigates the law and economics of extreme sports sponsoring in a comparative perspective. It is based on 40 structured interviews with sponsored athletes from various common law and civil law jurisdictions. The article demonstrates that the current contracting practice is unbalanced and inefficient. It entices athletes to take unreasonably high risks. There are ways to significantly increase the cooperative surplus compared to the status quo. The article further demonstrates that sponsor firms face increased and mandatory duties of care towards young and/or inexperienced athletes. In particular, such athletes should not be influenced by bonus systems in their risk-taking behaviour. The duties of care of a sponsor under contract and/or tort law are also determined by the degree of control exercised by a sponsor and the economic dependence of the athlete on the sponsor. This allows creating a finely tuned regulatory system that, unlike the dichotomy of an independent contractor and dependent worker, is better able to do justice to individual cases.

Arnald J. Kanning: Unification of Commercial Contract Law: The Role of the Dominant Economy, Volume 85 (2021) / Issue 2, pp. 326-356 (31), DOI: 10.1628/rabelsz-2021-0003

This paper is about the unification of commercial contract law. Showing that the legal rules preferred by the “dominant economy” frequently end up in uniform commercial contract laws does not show that those legal rules are inherently superior to any other legal rules. It will be argued that approval of a uniform commercial contract law by the “dominant economy” is the environmental factor that is crucial to its ultimate success, independent of the innate quality of the legal rules preferred by the “dominant economy”. Within the conceptual framework of historical and comparative institutional analysis (HCIA), a study is offered of several well-known attempts to unify (and codify) divergent bodies of commercial contract law in the past two centuries. The argument is not so much that the American UCC Article 2 on Sales greatly influenced the CISG as that United States adoption of the CISG was crucial to its ultimate success, independent of the innate quality of the legal rules preferred by the United States.

Justus Meyer: Die praktische Bedeutung des UN-Kaufrechts in Deutschland, Volume 85 (2021) / Issue 2, pp. 357-401 (45), DOI: 10.1628/rabelsz-2021-0004

The Practical Significance of the CISG in Germany. – The UN Sales Law is in different respects a clear success: worldwide, reforms of contract law are oriented towards the CISG. In September 2020 Portugal became the 94th contracting state. The importance of international trade in goods is steadily increasing. However, there is still uncertainty about the acceptance of UN sales law by internationally operating companies and their legal advisors. The present study is based on a survey of 554 attorneys in Germany and compares the answers with results from 2004 as well as from Austria and Switzerland. According to this survey, the international sales contracts heard by courts and arbitrators are predominantly not subject to UN sales law and the proportion of those who regularly use a choice-of-law clause with CISG exclusion has even risen from 42.2 to 52.9 % since 2004. In Austria and Switzerland this proportion has also risen and is even higher than in Germany. Many lawyers are well aware of the advantages of a neutral legal regime. However, it seems to be easier for them to recommend choice-of-law clauses that exclusively invoke domestic law.

Krzysztof Riedl: Natural Obligations in Comparative Perspective, Volume 85 (2021) / Issue 2, pp. 402-433 (32), DOI: 10.1628/rabelsz-2021-0005

A natural obligation (obligatio naturalis) is a legal construction whose roots stretch back to Roman law. This common source means that we will find similar solutions in legal systems descended from Roman legal culture – with respect to both the understanding of natural obligations and specific instances where they arise. The aim of this paper is to answer the question of whether these different systems define natural obligations in the same manner or whether the natural obligations encountered in these systems are distinct legal institutions sharing only a common name. In this paper, the various approaches of contemporary legal systems to this issue are characterized. Then, a comparative-law analysis focuses on three fundamental aspects of natural obligations: their legal construction (definition), a catalogue of instances, and their legal effectiveness. Under the constructional perspective, two basic models of obligatio naturalis are distinguished and discussed – the obligative model and the causal model – and it is around these two models which the particular conceptions converge. The analysis presented in the paper demonstrates that the similarities between the various models outweigh the differences. This permits us to refer to obligatio naturalis as a universal legal construction.

The Conference “the Office of the Judge and the Conflict-of-Law Rule” (L’office du juge et la règle de conflit de lois) will be held on Monday 17 May 2021 (in French) and will be streamed live via the Cour de cassation website and social media networks.

This Conference is part of the Lecture Series “Thinking about the office of the judge” (Penser l’office du juge) – 2020-2021 (directed by Sylvie Perdriolle, Honorary President of the Chamber, Sylvaine Poillot-Peruzzetto, Judge at the French Cour de cassation, and Lukas Rass-Masson, professor at the University of Toulouse 1 Capitole).

The programme is as follows:

5:00 p.m. – The Office of the Judge and the Nature of the Conflict-of-Law Rule
Nicolas Nord, Secretary General of the International Commission on Civil Status, Co-chairman of the China Section of the Société de législation comparée
Gian Paolo Romano, Professor at the University of Geneva, Co-director of the Yearbook of International Private Law

5:40 p.m. – The Office of the Judge and the European Conflict-of-Law Rule
Lukas Rass-Masson, Professor at the University of Toulouse I Capitole, Director of the European School of Law Toulouse

6:05 p.m. – The Office of the Judge and the Application of the Conflict-of-Law Rule
François Mélin, Judge at the Court of Appeal of Paris

18:30 p.m. – Discussion

Moderators:
François Ancel, President of the International Commercial Chamber of the Paris Court of Appeal
Gustavo Cerqueira, Professor at the University of Nîmes, France

 

In response to the EU Commission’s formal refusal to allow the UK to accede to the Lugano Convention, a coalation between several NGOs and legal scholars, lead by the European Coalition for Corporate Justice (ECCJ) has issued an open letter, calling upon the EU to reverse this decision. In essence, they argue that a full return to the common-law rules on jurisdiction, including the forum non conveniens doctrine, will reduce access to the UK courts in cases of corporate human-rights abuses, which has only recently been rendered much more attractive by the UK Supreme Court’s decisions in Vedanta v Lungowe [2019] UKSC 20 and Okpabi v Shell [2021] UKSC 3.

The full letter can be found here. It is still open for signatures (via e-mail to christopher.patz[at]corporatejustice.org).

 

The Permanent Bureau of the Hague Conference on Private International Law (HCCH) is seeking a Legal Officer (Maternity Leave Replacement). The successful candidate will work primarily in the field of family law, focusing on the 1980 Child Abduction and 1996 Child Protection Conventions as well as on the Family Agreements project.

Applications should be submitted by Monday 31 May 2021 (00:00 CEST). For more information, please visit the Recruitment section of the HCCH website.

This post is published by the Permanent Bureau of the Hague Conference of Private International Law (HCCH).

In December 2020, we reported about the Opinion presented by Advocate Generale Campos Sánchez-Bordona in the case Vereniging van Effectenbezitters, C-709/19. Today, the Court delivered its judgment in this case.

In brief, the request for a preliminary ruling arose out of the proceedings pertaining to a collective action for a declaratory judgment brought by an association against an oil and gas company on behalf of investors who bought, held or sold the ordinary shares through an investment account in the Netherlands. The association argued that this internationally listed company acted unlawfully towards its shareholders inasmuch as it made incorrect, incomplete and misleading statements about the circumstances pertaining to, inter alia, an explosion resulting in an oil spill. It is in this context that the referring court requested the Court of Justice to interpret Article 7(2) of the Brussels I bis Regulation.

At the request of the Court, in his Opinion of last December, AG Campos Sánchez-Bordona addressed two first preliminary questions. Thus, the third and fourth preliminary questions on international and internal territorial jurisdiction to hear subsequent individual claims of the investors were not addressed in the Opinion.

Ultimately, the third and fourth questions do not receive a definitive answer in the judgment either. The Court held that these questions are inadmissible as they are of hypothetical nature – in the proceedings pending before the referring court, no subsequent individual claim is concerned (paragraphs 38 and 39).

As to the first and second preliminary questions, these are worded as follows:

(1) (a)      Should Article 7(2) of [the Brussels I bis Regulation] be interpreted as meaning that the direct occurrence of purely financial damage to an investment account in the Netherlands or to an investment account of a bank and/or investment firm established in the Netherlands, damage which is the result of investment decisions influenced by globally distributed but incorrect, incomplete and misleading information from an international listed company, constitutes a sufficient connecting factor for the international jurisdiction of the Netherlands courts by virtue of the location of the occurrence of the damage (“Erfolgsort”)?

(b)      If not, are additional circumstances required to justify the jurisdiction of the Netherlands courts and what are those circumstances? Are the additional circumstances [namely, the fact that the international listed company focuses on global investment public, including the investors in the Netherlands, and the association represents a considerable number of investors in this Member State, the fact that the settlement reached by the international listed company with a number of shareholders in the United States of America was not proposed to the investors represented by the association and, lastly, the fact that the shareholders for whom this association is acting include consumers to whom the Brussels I bis Regulation affords special legal protection] sufficient to found the jurisdiction of the Netherlands courts?

(2)      Would the answer to Question 1 be different in the case of a claim brought under Article 3:305a of the BW by an association the purpose of which is to defend, in its own right, the collective interests of investors who have suffered damage as referred to in Question 1, which means, among other things, that neither the places of domicile of the aforementioned investors, nor the special circumstances of individual purchase transactions or of individual decisions not to sell shares which were already held, have been established?

 

In its judgment, the Court answered together this questions (paragraph 22) and held that Article 7(2) of the Brussels I bis Regulation must be interpreted to the effect that the direct occurrence, in an investment account, of purely financial damage resulting from investment decisions made on the basis of information which was readily available worldwide, but which was incorrect, incomplete and misleading and emanated from an international listed company, does not allow the international jurisdiction of the court of the Member State in which the bank or investment firm that holds that account is established to be founded on a connection with the place where the damage occurred, where that company was not subject to statutory reporting obligations in that Member State (paragraph 37).

The judgment can be consulted here (the English version is not yet available).

Electronic commerce: past, present and future

The UNCITRAL National Coordination Committee for Australia (UNCCA) invites you to attend its Seventh Annual May Seminar, to be held online as a webinar. This year we celebrate the 25th anniversary of the UNCITRAL Model Law on Electronic Commerce 1996, and the 20th Anniversary of the UNCITRAL Model Law on Electronic Signatures 2001.

Both of these Model Laws and the subsequent United Nations Convention on Electronic Communications in International Contracts 2005 have had a profound effect on the regulation of electronic commerce globally. In Australia, all of these developments have been incorporated in the Electronic Transactions Acts passed by the Commonwealth and all States and Territories. During 2020 the relevance of these enactments came to the fore as a result of the COVID pandemic.

In this live, interactive webinar, expert commentators from UNCITRAL and Australia will review the history of these developments in ecommerce, the current state of the law, as well as issues that are being considered for future work nationally and globally.

For more information, see here.

The Mexican Academy of Private International and Comparative Law (AMEDIP) is holding a webinar on 13 May 2021 at 5:00 pm (Mexico City time – CDT), 12:00 am (CEST time). The topic of the webinar is International Judicial Co-operation in Times of Pandemic and will be presented by Professor Carlos Echegaray de Maussion (in Spanish).

The details of the webinar are:

Link: https://us02web.zoom.us/j/87893740067?pwd=L0w4cThOVkFzQ04rZUZvT0lnNGpHZz09

Meeting ID: 878 9374 0067

Password: BMAAMEDIP

Participation is free of charge.

This event will also be streamed live: https://www.facebook.com/AmedipMX

 

 

In February 2021, the European Commission launched a study to assess the need for more effective legal protection of vulnerable adults within the European Union. As part of this study, a survey has now been published online for all legal practitioners working in the area: judges, lawyers, notaries, and other relevant authorities. Input from practitioners will be important in shaping any future legislative initiative.

The survey is open until 4 June 2021 and available at the following link: https://ec.europa.eu/eusurvey/runner/vulnerable_adults_practitioners.

Although the survey is in English, respondents are welcome to submit responses in any of the official EU languages.

For more information, see the survey link above or for more specific questions contact the project team at: < crossborder.adults@milieu.be >.