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Wikingerhof
Espace de liberté, sécurité et justice
Un hôtel utilisant la plate-forme Booking.com peut en principe attraire celle-ci devant une juridiction de l’État membre dans lequel cet hôtel est établi pour faire cesser un éventuel abus de position dominante

Minister van Buitenlandse Zaken
Espace de liberté, sécurité et justice
Un État membre qui prend une décision de refus de visa « Schengen », en raison d’une objection émise par un autre État membre, doit identifier, dans cette décision, l’État membre concerné ainsi que le motif de refus spécifique basé sur cette objection, accompagné, le cas échéant, des raisons de cette objection

The HCCH has today launched the publication from HCCH a|Bridged – Edition 2019. This was the inaugural edition of HCCH a|Bridged, held in December 2019, the focus of which was the ‘The HCCH Service Convention in the Era of Electronic and Information Technology’. The post-event publication builds on the discussions and compiles written contributions from each of the speakers. It is available for download in English, together with videos of each of the sessions, on the dedicated page of the Service Section of the HCCH website.

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

Call for Papers: Brussels II bis Recast

The long-awaited revision of the Brussel II-bis Regulation has been finalized and the instrument enters into force on 1st August 2022. In anticipation of this event, the Dutch Journal of Private International Law (Nederlands Internationaal Privaatrecht – NIPR) wishes to invite researchers in the field of private international family law to submit abstracts for an upcoming Special devoted to the Recast. The abstract should focus on one of the following topics:

• Divorce jurisdiction
• Choice of forum clauses in parental responsibility cases
• Referral of cases within the Brussels II-bis Recast
• Child Abduction cases
• Provisional and protective measures
• Recognition and enforcement of judgments
• Coordination with other instruments

 Abstracts should be no longer than 500 words and should be submitted by 15 January 2021 to nipr.redactie@asser.nl. Submissions are limited. The selection criteria will be based on the quality of the research and its originality. We also strive to ensure a diversity of represented legal systems and topics.

The accepted papers will also be invited to present their findings during a seminar to be held in cooperation with Tilburg University, the Netherlands. More information about this event will be distributed after acceptance of the abstract.

The author of this post is Prof Dr Dan Jerker B. Svantesson, Professor at the Faculty of Law, Bond University (Australia), Visiting Professor at Masaryk University (Czech Republic) and Associated Researcher at the Swedish Law & Informatics Research Institute, Stockholm University (Sweden).

On 6 December 2020, I had the great honour of giving a presentation at the Royal Netherlands Society of International Law’s Annual General Meeting. The topic I had been invited to address was the questions of whether (public and private) international law is ready for the, already ongoing, digital age. In essence, I made six observations:

1. Examples can be found of the online environment undermining the proper functioning of public and private international law structures;
2. As structured and applied online today, public and private international law creates a situation of ‘hyperregulation’;
3. The complexity of international law stems in part from the fact that the frameworks and concepts applied were developed in other eras and under other conditions resulting in them being insufficient to address the issues with which we are confronted now at the beginning of the 21st century;
4. The international law community must do more to engage with, and prioritise, Internet-related legal issues, and must seek to increase the profile of public and private international law in the Internet regulation community;
5. Examples can already be found of, more or less, self-regulatory Internet-related ADR schemes that effectively exclude international law altogether (see here). We must recognise that, with a proliferation of such schemes, the role and influence of international law decreases; and
6. The international law community ought to do more to engage with large, forward-looking, questions such as how AI may support, and indeed reform, how we work with international law (see further here). In this context, we must be brave enough to be willing to reconsider also the most entrenched notions.

I am happy to have the opportunity to summarise some of my arguments here. Focus will be placed on the first four of the topics outlined above.

The Online Environment Undermining the Proper Functioning of Public and Private International Law Structures

There is a long-standing recognition of a tension between the largely borderless Internet and the border-focused law. However, here I want to point to a more specific (and recent) illustration of how the online environment challenges the proper functioning of private international law.

Ordinarily, the need for recognition and enforcement works to counter the impact of excessive foreign claims of jurisdiction that are contrary to a country’s public policy. However, the protection and equalising effect normally provided by the need for recognition and enforcement has been severely undermined by courts claim a broad ‘scope of jurisdiction’ (see also here) or ‘scope of remedial jurisdiction’ as preferred by the Court of Appeal for British Columbia (see here).

Scope of jurisdiction relates to the appropriate geographical scope of orders rendered by a court that has personal jurisdiction and subject matter jurisdiction. This question has gained far less attention to date than the other two types of jurisdiction. Yet, to understand its significance we need only consider the fact that, any time a court orders an Internet actor to block, delist, deindex, de-reference, delete, remove, or takedown content, it will need to consider whether to grant that order only in relation to publications in the state where the court sits, or to extend the order more widely – perhaps even globally. Thus, it is unsurprising that scope of jurisdiction has emerged as one of the most hotly contested ‘battle ground’ in the intersection between international law and the Internet.

In a situation where a court claims worldwide scope of jurisdiction in the context of an order against a major Internet platform, and that platform complies with the order, there simply is no need for recognition and enforcement – the worldwide impact is automatic.

Imagine, for example, that a Dutch citizen in the Netherlands posts something on a US social media site. The posting, while perfectly legal in both the Netherlands and in the US, is seen to be offensive to the Communist Party of China and a Chinese court or authority orders its removal. If the US social media company complies, the removal is effective worldwide without the need for any enforcement action in neither the Netherlands nor in the US. In fact, the laws and legal systems – including the public policies – of these countries do then not feature in the equation at all.

The threats to free speech posed by this scenario are beyond intelligent dispute. However, things get much worse when we consider that the CJEU’s recently adopted approach means that Internet platforms are not only subject to orders to remove posted content, but also to block – potentially with worldwide effect – future content that is ‘equivalent’ to the content removed (see further here and here).

Applying this to the China-related example above, we are heading towards a situation in which e.g. Chinese law may stifle regime critics from other countries to the degree that their postings, while lawful where the person resides, are censored by non-Chinese Internet platforms. In such a situation, the private international law of the state in which the person or the platform are based, has no influence. Further, it is doubtful that public international law as it stands provides sufficient protection, at least if the interpretation of the relevant rules of public international law are left to the country wishing to effect the censorship as suggested by the CJEU.

As Structured and Applied Online Today, (Public and) Private International Law Creates a Situation of ‘Hyperregulation’

The only reason law does not make impossible the operation of the Internet is found in the combined effect of, on the one hand, self-imposed state restraint in not applying their laws as widely as they could and, on the other hand, more pragmatically, enforcement difficulties. Worryingly, it seems to me that the latter of these factors plays a considerably larger role than does the former.

To see the extent of the challenge, we need only consider the number of countries’ laws that may apply to something as mundane as an unflattering social media post about another person. The person making the posting may have to take account of the law of the country she is in at the time of making the posting, the law of the country in which she is habitually residing (and/or has domicile) and, if different, the law(s) of her country of citizenship(s). Then she will probably also need to consider US law as most major social media platforms are based in the US (although there is also a considerable uptake in social media – such as the Chinese platform TikTok – from other parts of the world). We are here already confronted by a few, potentially very different, legal systems providing laws with which the person making the posting is meant to comply.

Given that our hypothetical posting relates to another person, we may also need to consider the laws of that person’s location, residence, domicile and citizenship(s). And we may also need to consider the laws of any additional countries in which that person has a reputation to protect.

Furthermore, under the law of many, not to say most, countries focus may be placed on where content is downloaded or read; two distinct, but often conflated, activities. Thus, the person making the posting will also need to comply with the laws of all the countries in which her ‘friends’ or ‘connections’ are found; and less predictably, the laws of all the countries in which they may be located when reading her posting. It goes without saying that, the number of additional legal systems to be considered grows with the number, and geographical diversity, of her friends or connections, and in light of the mobility of people, may never be fully ascertained at the time of posting.

As if the complexity alluded to so far was not enough, things get even messier when we confront the liability that may stem from re-publications; that is, to map out the full extent of potentially applicable laws, we must also take account of the laws of all the countries in which re-posted versions of the original posting may be downloaded or read. Here the original poster obviously loses all possibilities of predicting the scope of laws to which she may be exposed.

Finally, content placed on social media platforms is often stored in ‘the cloud’, and while we as users may not necessarily be able to find out where our content is located, we may be legally obligated to consider the laws of the country in which it is stored.

This legal situation, of extraordinary complexity, is what billions of social media users face on a daily basis. For the absolute majority, their postings will not lead to any legal drama. However, the thought of being exposed to potential legal liability in a large number of countries should be a concern to anyone. And of course, the very idea that you strictly speaking should inform yourself of all those laws you are meant to follow is daunting indeed.

Elsewhere (see here), I have described this as a situation of ‘hyperregulation’ characterised by the following conditions:

1. the complexity of a party’s contextual legal system (i.e., the combination of all laws that purport to apply to that party in a given context) amounts to an insurmountable obstacle to legal compliance; and
2. the prospect of legal enforcement of (at least parts of) the laws that make up the contextual legal system is more than a theoretical possibility.

The Complexity of International Law Frameworks and Concepts

In the context of applying international law to Internet activities or situations there are numerous instances of competing legitimate interests; State A’s protection of free speech may be difficult to reconcile with State B’s restrictions on hate speech, and so on. On a slightly more general level, we may observe that broad claims of jurisdiction may unreasonably interfere with the rights of people in other States, while restrictive approaches to jurisdiction may render a victim without realistic access to justice. Thus, the difficulties we experience in applying international law to the Internet stem from the fact that the ‘genuine regulatory challenges’ we need to work with are both numerous and go to the depth of involving the most fundamental legal notions. Yet this does not fully explain the complexity of our situation.

The application online of the pre-Internet legal concepts that make up public, and private, international law often involves decisions on the appropriate analogies and metaphors. As I have been arguing for the past 15 years, we must try to avoid inappropriate reliance on metaphors and analogies (see here).

In the survey that formed the base for the Internet & Jurisdiction Global Status Report 2019, several interviewed experts emphasised the concern that, in the jurisdiction field, legal concepts are old fashioned and outdated. Furthermore, one of the survey questions posed the claim that we already apply the right legal concepts to address cross-border legal challenges on the Internet. Among the surveyed experts, 46% either disagreed or strongly disagreed, 36% indicated that they neither agreed nor disagreed, and only 18% either agreed or strongly agreed.

This, it is submitted, hints at what may be termed ‘artificial (i.e. manmade) regulatory challenges’ in that the frameworks and concepts being applied are insufficient to address the issues with which we are confronted. In general, it seems that international lawyers are looking at all changes taking place in today’s world through the lenses of vested concepts such as extraterritoriality, sovereignty etc. They want the world to be guided by reference to these concepts. Yet it should perhaps be the other way round – the concepts we use should be guided by how the world in fact is. While we of course ought to make use of those concepts that truly remain useful, we must also be prepared to develop new concepts if reality so requires. In other words, the inadequacy of the tools may cause regulatory challenges preventing, or at least limiting, progress.

It seems to me that the Internet jurisdiction debate these days is focused on tackling the most imminent day-to-day issues (some of the ‘genuine regulatory challenges’), at the expense of attention being directed at the underlying conceptual mess (the ‘artificial regulatory challenges’). This is of course natural given the very real impact these challenges have for society. However, real progress can only be made where we also tackle the ‘artificial regulatory challenges’.

Examples of proposals I have advanced to address these artificial regulatory challenges include:

1. A new jurisprudential framework for the concept of jurisdiction (see here);
2. The categorisation of types of jurisdiction under public international law, introducing the concept of ‘investigative jurisdiction’ (see here);
3. The introduction of the concept of ‘scope of jurisdiction’ (discussed above); and
4. A clarification of the status of ‘sovereignty’ (see here).

The International Law Community and the Internet

In 2019, online retailer Amazon surpassed Walmart to become the world’s largest retailer, and tech companies feature prominently on lists ranking the world’s most powerful companies. The world’s most populous states – China and India – have an estimated 1.39 and 1.35 billion citizens respectively; but Facebook has a ‘population’ of 2.45 billion active users. Thus, a rule introduced in the laws of China directly affects just over half as many people as does a rule introduced in Facebook’s Terms of Service!

In addition, there is a clear ongoing trend of borders between the online data-driven world and the physical world are eroding. In the Internet of Things (IoT) era, however, the speed with which these borders erode is increasing dramatically, with effects for all aspects of society. Put simply, the offline world is no longer offline.

To all this may be added the changes in the world due to the, at the time of writing, ongoing pandemic. With large parts of the physical world currently in lockdown, it may be said that the online world is now working better than does its offline counterpart.

Our currently increased reliance on online at the expense of the offline may well affect behaviour patterns long-term, meaning that we will continue to live an even greater segment of our lives online in the future also after the world has overcome the pandemic. This is an aspect of a broader phenomenon that may be termed ‘COVID-19 driven trend acceleration’; that is, already existing trends are significantly accelerated due to the COVID-19 pandemic and how society adjusts to it.

The message stemming from the above is clear, loud and beyond intelligent dispute – cross-border Internet-related legal issues are central matters in society and need to be treated as such also private and public international law.

Yet, law in general, but public and private international law in particular, treats Internet issues as an exotic side dish to the main course taken for granted as being the offline – physical – world. Anyone doubting this claim need only take a glance at the tables of content of textbooks and journals in those respective fields: Internet issues do feature but typically only to a very limited, subsidiary, extent. Approaching Internet-related legal issues in this manner is unsustainable in today’s world where cyber is such a big part of our lives.

Thus, it seems to me that an important task that remains to be completed is to recalibrate the debate from one of a clash between (international) law and the Internet, to one focused on how international law can better help facilitate a desirable online environment.

Final Remarks

As it turns out, the Internet is not a fad after all. It is not just here to stay; it is here to dominate our lives. Looking at news reports, and indeed society in general, this is obvious. Yet looking at legal literature in general, and international law in particular, it is not adequately reflected. This is unsustainable and those who take pride in proclaiming that they do not deal with Internet issues are escapists at risk of irrelevance. What is worse, much could have been achieved to create better Internet regulation – and ultimately a better world – had more experts from non-technology fields been more willing to engage with these novel legal issues as they became apparent. I hope the 2020 Royal Netherlands Society of International Law’s debate on a current issue in the domain of international law can help create real awareness and greater discussions of these issues, at least for the Netherlands – a longstanding leader in progressive, constructive, and creative thinking in international law – but hopefully more broadly.

But as noted by Juenger: “[T]urmoil is bound to happen whenever old principles clash with new realities” (see here), and in few other areas has this so clearly proven to be the case as it has when applying private and public international law principles to the online environment. Much remains to be done to improve the relationship between international law and the Internet, and the tasks that lie ahead – tasks for us all – are huge indeed. But they are neither unsurmountable, nor are they optional.

Le 18 novembre 2020, trois ordonnances ont été prises pour adapter les règles applicables devant les juridictions. L’une d’entre elles est relative aux juridictions de l’ordre judiciaire statuant en matière pénale. Elle signe le retour de certains ajustements procéduraux pour permettre, durant la crise sanitaire, la continuité de l’activité des juridictions pénales.

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Decisions on the definition of waste under the EU waste framework Directive 2008/98 inevitably involve quite a bit of factual analysis and Safety-Kleen UK Ltd v The Environment Agency [2020] EWHC 3147 (Admin)  is no exception.

Safety-Kleen UK Ltd, the Claimant, provides specialist mechanical parts washers, containing kerosene, to businesses, such as those undertaking automotive repairs and to small engineering businesses. They are used for cleaning the parts of heavy oil, grease, paint, ink, glues and resins. The machines enable a cleaning process by physical means, such as scrubbing and automatic agitation with kerosene, and by kerosene acting as a solvent. Safety-Kleen collects the used kerosene from its customers in drums and replaces it with cleaned kerosene. Safety-Kleen takes the drums of used kerosene back to a depot, empties them into a sump or reservoir and then rinses out the drums with used kerosene from the reservoir, to which the now re-used kerosene returns. From there, the re-used kerosene is pumped into the “dirty” tanks, whence it is tankered away to a different company for a specialised industrial waste recovery or regeneration process, by which the dirty kerosene is distilled and cleaned. The cleaned kerosene is returned to a Safety-Kleen depot, and placed into the cleaned drums.

There was no issue but that the dirty kerosene, when it reached the “dirty” tanks at the depot was “waste”, within the WFD, and remained waste when transferred to the depot for distillation and waste until it was cleaned for re-use by customers. Until 2017, there had been no issue between Safety-Kleen and the Environment Agency but that the used kerosene was waste when it was collected by Safety-Kleen from its customers’ premises. However, in 2017, Safety-Kleen concluded that the kerosene did not become waste until it had been used for the cleaning of the drums back at the depot, and was sent to the “dirty” tanks, to await removal for recovery or regeneration. The Agency thought otherwise.

Ouseley J discussed the classics with particular focus on Arco Chemie and  Shell, and at 50-51 a rather odd deference even in judicial review, to what the regulator itself held. The EU definition of waste is a legal concept; not one to be triggered by the Agency’s conviction. Nevertheless he reaches his ‘own judgment’ (52) fairly easily and, I believe on the basis of the facts available, justifiably, that the kerosene is being discarded by the holder, it being ‘indifferent to what beneficial use Safety-Kleen may be able to make of it back at the depot’ (at 56).

Claimant’s reliance on Shell seemed not the most poignant, seeing as the case here is not one of reverse logistics but rather one of truly spent raw materials on their way to perhaps receiving a second life following treatment.

Geert.

Handbook of EU Waste law, OUP, second ed, 2015.

Definition of waste under the EU Waste framework Directive
Re-used kerosene pumped into tanks
CJEU Shell authority featuring
Held for the Agency https://t.co/FMH1dK3DXE

— Geert Van Calster (@GAVClaw) November 20, 2020

On Tuesday, December 1, the Hamburg Max Planck Institute will host its sixth monthly virtual workshop in private international law at 11:00-12:30. Marc-Philippe Weller (Heidelberg University) will speak, in German, about the topic

„Nationalismus, Territorialismus und Unilateralismus: Pandemiebewältigung durch IPR?
(“Nationalism, Territorialism, Unilateralism: Managing the Pandemic Through Private International Law”?

The presentation will be followed by open discussion. All are welcome. More information and sign-up here.

This is the sixth such lecture in the series, after those by Mathias Lehmann in June, Eva-Maria Kieninger in July, Giesela Rühl in September, Anatol Dutta in October, and Susanne Gössl in November. Starting in January 2021,  we plan to alternate between German and English, in order to enable more interested scholars to participate. We found a special speaker to start us off in English – stay tuned!

If you want to be invited to these events in the future, please write to veranstaltungen@mpipriv.de

Pourvoi c/ Cour d'appel de Nancy, 9 juillet 2020

Pourvoi c/ Cour d'appel de Rennes, 16 octobre 2020

Pourvoi c/ Cour d'appel de Bordeaux, 19 novembre 2019

Pourvoi c/ Cour d'appel de Paris, 22 juin 2020

Cour d'appel de Versailles, 16 octobre 2020

Pourvoi c/ Cour d'appel de Toulouse, 30 juin 2020

Pourvoi c/ Cour d'assises de Paris, 10 juillet 2020

The topic of international commercial courts or chambers was a trendy one a couple of years ago. It has been dropped to a large extent in academia – although, if I am not wrong, it will come up again in the form of a course at The Hague Academy in the next future. It remains important in practice.

On 1 November 2020, two Commercial Courts were inaugurated in Baden-Württemberg: one in Stuttgart, the other one in Mannheim. A dedicated website in German, English and French, provides information about their main features which, to the extent it is possible under German law, are cut to fit the specificities of cross-border disputes in the following commercial matters: disputes in connection with the acquisition of companies or shares of companies (both courts); disputes resulting from mutual commercial transactions with a value in dispute of at least € 2 million (both courts); corporate disputes (both courts); and disputes resulting from bank and financial transactions (Mannheim).

The website has definitely been designed with care and with the purpose to attract litigants; it may therefore be looked at as an example to be followed in other Länder. Hessen, where a Chamber for International Commercial Disputes at the Landgericht Frankfurt am Main was established already in 2018, opted for a much more sober model: no pictures, no colours, no links, most basic information in one sheet in German and English; possibly not the best-selling strategy. The same applies to Hamburg. This being said, relevant information is still lacking in the Baden-Wüttemberg site in comparison, for instance, with the NCC in Amsterdam.

Among the interesting features of the new courts, I would like to highlight that they are staffed with German judges: the system would not allow hiring foreigners as it happens in other courts for international commercial litigation, such as the DIFC Courts. However, all the judges in the Stuttgart and Mannheim commercial courts have been appointed in light of their expertise in commercial matters, and because (so the website) they will be able to conduct the proceedings in English if the litigants choose the option. Their academic background, former positions, command of a foreign language, excerpts of their cv regarding academic publications, as well as their age, have been made public on the website: a novelty in Germany, by all means. It is worth noticing that not all other international commercial courts provide information regarding their judges. A curiosity: those who make it include even personal data like whether married or not, and number of children; difficult not to wonder why.

On the language of the proceedings, in spite of the reference to a choice of English by the parties I am not sure it is possible to have the whole process, nor the decision, in English. In any event, documents in English can be used so that it is not necessary to obtain extensive translations of contractual documents or engage the services of interpreters.

It looks as if the new courts are better suited than the average German ones (at least, in pre-covid19 times) regarding the IT equipment in the courtrooms and the support staff: ‘Hearings can be held using state-of-the-art technology in both Stuttgart and Mannheim. The technical equipment includes modern video-conference technology and the latest presentation technology’.

On the conduct of the proceedings, the commercial courts of Bade-Württemberg will follow the common rules, but are willing to reinvent already existing faculties under German procedural law: regarding the length of the proceedings, it is acknowledged that speedy determination is of the essence, therefore a ‘case management conference’ is possible in order to structure the later stages of the proceedings. In addition, the parties may agree to limit the opportunities to file appeals by a mutual agreement not to seek legal remedies, even at the start of the proceedings; in this way, the dispute is to be decided quickly and conclusively in just one court. This possibility is highlighted in the website together with other features bringing to mind immediately the traditional disadvantages of arbitration: easy involvement of third parties, effective coercive measures and efficient enforcement. As it happens, the comparison is even explicit at some point: ‘Additionally, unlike arbitration tribunals, the courts can administer oaths or declarations in lieu of an oath’. In a similar vein, the indication to the court fees being moderate and capped when the value in dispute reaches € 30 million can be read as an indirect hint to the expensive costs of litigation in other countries (EU and non EU) with similar judicial bodies.

Should the parties not agree on excluding appeals, specialised appeal panels have been set up at the Stuttgart and Karlsruhe Higher Regional Courts, which are responsible for appeals and complaints against the decisions of the Stuttgart and Mannheim Chambers and also offer comparable advantages.

Finally, the Baden-Württemberg commercial court’s website refers to relevant systemic features of the German judiciary and legal system, in particular to compliance with the rule of law, the impartiality and independence of the judges: an added value not to be taken for granted any longer (let me refer you to this shocking, but also saddening editorial in Verfassungsblog).

NoA: Because of the federal order of the Federal Republic of Germany, the court system is also structured federally. Jurisdiction is exercised by federal courts and by the courts of the 16 federal states (Länder). The main workload of the administration of justice lies with the Länder. The decision to have specialized chambers or divisions devoted to cross-border commercial litigation lies with the Ministry of the respective Land.

As announced earlier on this blog, EAPIL will hold its first Virtual Seminar on 11 December 2020, from 11 a.m. to 1 p.m. (MET).

Devoted to the impact of Brexit on Private International Law, the seminar will feature speakers from the United Kingdom and the European Continent.

They will analyze the legal framework that will apply to cross-border cases in the short-term, i.e. as of 1 January 2021 when the transition period provided for in the Withdrawal Agreement expires. Speakers will also discuss what the future relationship between the EU and the UK could and should look like.

Special emphasis will be placed on the question of whether the EU and the UK should strive to adopt a new – bespoke – bilateral agreement (or whether it should simply join existing international conventions).

The speakers of the first session, on civil and commercial matters, will be Alexander Layton (Twenty Essex Street Chambers, London), Eva Lein (University of Lausanne) and Michiel Poesen (KU Leuven).

In the second session, Sir Andrew Moylan (Court of Appeal of England and Wales), Pietro Franzina (Catholic University of the Sacred Heart, Milan) and Anatol Dutta (Ludwig Maximilian University Munich), will focus, instead, on family matters.

Register here if you wish to discuss with us. Registered participants will receive the details to join the seminar on 10 December 2020.

We are glad to announce that registration for the first (Virtual) Seminar of the European Association of Private International Law (EAPIL) is now open. If you wish to join, just fill out this form.

The Seminar will take place on 11 Dezember 2020 from 11 am to 1 pm (MET).  Devoted to the impact of Brexit on Private International Law it will feature speakers from the United Kingdom and the European Continent:

• Alexander Layton (Twenty Essex Street Chambers, London)
• Eva Lein (University of Lausanne)
• Michiel Poesen (KU Leuven)
• Sir Andrew Moylan (Court of Appeal of England and Wales)
• Pietro Franzina (Catholic University of the Sacred Heart, Milan)
• Anatol Dutta (Ludwig Maximilian University Munich).

For more information see our earlier post as well as the information available on the EAPIL website.

If you have questions concerning the first EAPIL Seminar or the EAPIL Seminar Series as such please get in touch with the Secretary General of EAPIL, Giesela Rühl, at secretary.general@eapil.org.

Background:

The EAPIL (Virtual) Seminar Series seeks to contribute to the study and development of (European) Private International Law through English-language seminars on topical issues. It will provide an easily accessible and informal platform for the exchange of ideas – outside the bi-annual EAPIL conferences. At the same time, it will serve as a means for EAPIL members to connect with other EAPIL members and non-members.

Il incombe à la chambre de l’instruction, saisie de l’appel d’un placement en détention provisoire, d’examiner l’existence d’indices graves ou concordants de la participation du requérant aux infractions qui lui sont reprochées.

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Conference ‘Frontiers in Civil Justice’ held on 16 and 17 November 2020 (online)

By Jos Hoevenaars & Betül Kas, Erasmus University Rotterdam (postdocs ERC consolidator project Building EU Civil Justice)

As announced earlier on this blog, the Conference Frontiers in Civil Justice organized by the ERC team together with Ilja Tillema of Erasmus School of Law in Rotterdam, took place on 16 and 17 November 2020.

The conference addressed four key issues in civil justice, which require a deeper and renewed reflection in light of their contribution to facilitating access to justice. Those concern the shaping of the interaction between formal and informal justice (panel I), the digitalization of consumer dispute resolution (panel II), the collectivizing and monetizing of civil litigation (panel III) and justice innovation and frontier developments in civil justice (panel IV). Renowned speakers and selected speakers following a call for papers gave their views during the two-day conference that, although set up previously as a blended event with online as well as live attendance at Erasmus University in Rotterdam, was forced to move fully online due to the tightening of Covid-19 measures in the Netherlands.

The Needs and Challenges of Digitizing Justice in Europe (Keynote 1)

The first day of the conference was kicked-off by the keynote speech of Hrvoje Grubisic (DG Justice and Consumers, European Commission). Grubisic underlined the necessity of digitalisation in the justice field in order to guarantee Europe’s citizens access to justice. The EU’s efforts of furthering the employment of digital technologies in the justice area is particularly warranted by the persistent increase in cross-border activities in civil and commercial matters. Grubisic pointed to the importance of the principles contained in the Tallinn ministerial declaration in framing and guiding the Commission’s strategy of the digitalisation of justice in the EU. The current COVID-19 crisis has accelerated the Commission’s activities. On the basis of its roadmap setting out the need to steer and coordinate the digitalisation of justice at EU level, the Commission plans to publish a communication of its policy priorities by the end of 2020. In practical terms, the Commission intends to employ a toolbox approach, starting with the identification of cross-border judicial procedures that can be digitised, ascertaining the appropriate IT tools (e.g. e-CODEX based systems) and ensuring funding sources for the Member States.

Shaping the Interaction between Formal and Informal Justice (Panel I)

Subsequently, Elisabetta Silvestri (University of Pavia) introduced the first panel dealing with the interaction between formal and informal justice. Silvestri stressed the importance of understanding how formal and informal justice can coexist in a balanced relationship that is able to grant individuals access to justice. According to her, the need for a fruitful cooperation between courts and ADR providers in the best interest of stakeholders became even more pronounced in the current pandemic. The presentation of Diana Wallis (Hull University; former ELI president) reflected on the differing nature of formal and informal justice. Wallis traces how the EU has promoted the shift of the delivery of justice away from the nation states’ courts to ADR bodies. While the ELI Statement addressed the practicalities of the relationship between private and public justice, the deeper question about how to address the dangers and drawbacks of privatized justice remains unresolved. Anna Nylund (The Arctic University of Norway) submitted in her presentation that many ADR processes fail to deliver on their promises of improved access to justice. Nylund sees ADR to be based predominantly on individualistic values, expecting citizens to exercise self-determination, and as such therefore geared towards the highly educated middle class. The gap between theory and practice contributes to the reluctance towards ADR processes in Europe. She therefore proposed a step-by-step approach of re-designing ADR according to context-dependent goals. The following two presentations provided insights into the relationship between formal and informal justice by drawing on the concrete experiences of two national legal systems: Masood Ahmed (University of Leicester) presented the experience of the English civil justice system with compulsory ADR. While compulsory ADR has been traditionally dismissed by the English judiciary, a divergent judicial approach has emerged which impliedly obliges the parties to engage with ADR. Ahmed criticises the persistence of the traditional approach and calls upon the courts to fully embrace their case management powers in making ADR orders. Stefaan Voet (KU Leuven) reports how informal justice has been introduced by a number of procedural reforms in Belgium. Voet’s presentation addresses five critical issues regarding informal justice processes, namely (1) their possible mandatory nature; (2) their quality; (3) the procedural guarantees offered by them; (4) the enforcement of their outcomes; and (5) the interaction with the formal justice process.

Digitalization of Consumer Dispute Resolution (Panel II)

The second day of the conference started with a panel, chaired by Burkhard Hess (Max Planck Institute Luxembourg), focusing on online dispute resolution (ODR) for consumer claims, using case-studies as a starting point to discuss how different types of cODR procedures can contribute to consumers’ access to justice. Martin Ebers (University of Tartu) presented on the promise and challenge of AI based techniques in cODR and its impact on due process. Giving an overview of current uses of AI in different phases of disputes, from case management and automated anonymisation to data inference and automated decision-making, Ebers laid out the framework for future regulation of the use of AI in European ODR. Subsequently, Marco Giacalone (Vrije Universiteit Brussels) used examples from the US, Canada, Australia and Slovakia to zoom in on the concept and application of e-negotiation. Reflecting on the potential of this mode of assisted and automated negotiation in resolving disputes, Giacalone considers EU practices of e-negotiation for consumer dispute resolution as significant yet insufficient, with considerable room for improvement in enhancing consumer access to justice in the EU?. Eline Verhage (Leiden University) presented on the recent experience of the Dutch Foundation for Consumer Complaints Boards (Geschillencommissies) in responding to the Covid-19 crisis. Presenting very recent data on the move to online hearings she reflected on the impact on the ‘voluntariness gap’ in these out-of-court alternative dispute schemes, concluding that virtual hearings seem a promising cODR tool for enhancing business participation, due to the increased option and lower costs. Finally, Emma van Gelder (Erasmus University Rotterdam) discussed observations from empirical research on Klachtencompas (a free online complaint platform of the Dutch consumer protection organization Consumentenbond) and the in-house dispute resolution platform used by Paypal, to discuss the benefits and drawbacks of these ‘first-line’ complaint resolution mechanisms. The main point of discussion following the various examples presented during the panel was on the applicability of Article 6 ECHR and Article 47 of the EU Charter, and on the question of how to apply the notions of fair trial and due process to both certified and uncertified ADR schemes in the EU.

Current Issues in Access to Justice: An English Perspective (Keynote 2)

In the second keynote of the conference, professor Dame Hazel Genn (University College London) provided a very timely insight into current developments in the English civil justice system in the context of the Covid-19 pandemic. Bringing together the most recent insights from (some unpublished) rapid reviews of the rush to mostly online justice administration and reflecting on the impact of online courts and tribunals on access to justice especially for those that are in most dire need of legal assistance and resolution. Quite in contrast to previous discussions about the great potential of technological innovations in the areas of small claims and consumer dispute resolution, Professor Genn stressed the need to also look at what we potentially lose in procedural and substantive terms when hearings are undertaken remotely or on paper. Contrasting the great benefits of technology in terms of convenience, economy and efficiency with its downsides apparent in both the experiences of litigants as well as the judiciary, Genn ended on the pertinent question: Are we processing cases or are we doing justice?

Collectivizing & Monetizing Civil Litigation (Panel III)

The third panel chaired by John Sorabji (Barrister, 9 St John Street; University College London) turned attention to collective redress via adjudication and, specifically, the funding of civil litigation. Ianika Tzankova (Tilburg University) drew lessons for the funding of collective redress in global disputes from the Dutch experience. In particular, Tzankova explored and compared the financing of collective civil litigation on the basis of the Dexia case which was the first major consumer mass claim in the Netherlands and the investor litigation in the Fortis collective action, which resulted in the first global collective settlement that can be considered ‘EU-originated’. Astrid Stadler (University of Konstanz) explained in her presentation the German situation regarding litigation funding of collective actions. In particular, Stadler presented on how the judiciary dealt with third-party funding arrangements and funding by legal tech companies and SPVs in recent case law. The judiciary’s strong aversion against entrepreneurial litigation endangers the effective enforcement of the law. Stadler concluded that third-party funding must be available for representative claimants and should be regulated by the legislator. Complementing Tzankova’s presentation, Ilja Tillema (Erasmus University Rotterdam) reflected on the rise of entrepreneurial mass litigation in the Netherlands. Particularly in the last decade, spurred by the potential of large earnings, entrepreneurial parties have started to diversify the Dutch mass litigation landscape. Tillema reflected on the pros and cons of their involvement, presented empirical material of the amount and types of cases in which entrepreneurial parties are involved, and evaluated the way that the legislator and courts have dealt with this development. Catherine Piché (Université de Montréal) elucidated Quebec’s experience with public forms of financing class litigation. According to Piché, the Canadian province of Quebec’s Fonds d’aide aux recours collectifs (the assistance fund for class action lawsuits) serves not only as an effective class litigation funding mechanism, but also as a mandatory independent oversight body. Piché evaluates that financing class actions publicly through assistance by such entities is the most appropriate and effective way to finance class action litigation and could therefore serve as a model for other legal systems.

Innovations in Civil Justice (Panel IV) 

Chaired by professor Alan Uzelac (University of Zagreb) the final panel brought together speakers following a call for papers. The call invited submissions on topics relating to justice innovation, specifically about the development of initiatives aimed at bringing justice closer to citizens, their relevance for access to justice and the judicial system, and the challenges they may pose for judicial administration, litigants and other stakeholders. The presentation of Iris van Domselaar (UvA) kicked off with legal philosophical reflections on civil justice innovations that aim to ‘bring justice closer to the citizen’, and posed the question to what extent the ‘pragmatic turn’ in civil justice systems is reconcilable with courts being objective justice-affording institutions, as such setting the scene for the specific examples of innovation and developments that were to follow. Pietro Ortolani (Radboud University Nijmegen) & Catalina Goanta (Maastricht University) and next Naomi Appelman & Anna van Duin (UvA) presented to the audience two specific examples that raised divergent questions about the frontier civil justice development playing out in the realm of online social media. The former, by comparatively analyzing reporting systems and underlying procedural rights of users related to content moderation by four social media platforms (Facebook, Twitch, TikTok and Twitter), presented an example where innovation may actually pose a threat to access to justice. While the latter, reporting on the findings of empirical research on the need for procedural innovation in the Netherlands to quickly take down online content that causes personal harm, presented how innovations in civil justice could contribute to the effective protection of rights in the digital realm. The final topic of this panel was presented by Nicolas Kyriakides & Anna Plevri (University of Nicosia) who, taking Zuckerberg’s predictions on AI’s role in guaranteeing access to justice as a starting point, presented their own evaluation on this matter, encouraging further debate on AI’s role in adjudication. By elucidating the potential of AI to render the familiar open-court, multi-party process of justice completely unrecognisable, they warned about the potential loss of perceived legitimacy of the justice system as a whole, should AI systematically penetrate the entire justice system.

Although the conference was forced to move fully online, the digital setting did not stifle the interaction with the audience. Through the use of the chat function and live chat moderators the speakers were able to answer questions from the audience in the chat and the chairs were able to open up the floor to members of the audience. This led to lively discussions very much resembling a live setting.

This conference was organised by Erasmus School of Law of Rotterdam University and funded by an ERC consolidator grant from the European Research Council for the project ‘Building EU Civil Justice’.