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With Kathleen Garnett I have co-authored a paper where we scope the ‘essential uses’ approach to product regulation, particularly in chemicals.

Could calls for the stricter regulation of one particular type of chemical herald the introduction of a new (or not) ‘principle’ in international and EU regulatory law, namely that of ‘essential use’ as a precondition for market authorisation?

The concept of ‘essential use’ or ‘non-essential use’ has been referenced in a number of EU policy papers. Kathleen and I focus on Per- and polyfluoroalkyl substances (‘PFAS’)  in chemicals legislation and firstly, map the concept of ‘essential use’ in international and EU law; further, discuss its limited application in the case-law of the European Court of Justice; and, before we conclude, carry out a preliminary investigation as to (if it does not currently exist in EU law), whether it might be so included de lege ferenda.

Happy reading. We are submitting to journal.

Geert, Kathleen.

Written by Peter Hilpold, University of Innsbruck

Note: This blogpost is part of a series on „Corporate social responsibility and international law“ that presents the main findings of the contributions published in August Reinisch, Stephan Hobe, Eva-Maria Kieninger & Anne Peters (eds), Unternehmensverantwortung und Internationales Recht, C.F. Müller, 2020.

1. The UN Guiding Principles on Business and Human Rights (2011) have set forth a process by which Corporate Social Responsibility (CSR) rules are to be further specified. The approach followed is not to impose specific results but to create procedures by which CSR is given further flesh on the basis of a continuing dialogue between all relevant stakeholders.

2. The operationalization of this concept takes place by a three pillar model („protect“, „respect“, „remedy“) based on an approach called „embedded liberalism“ according to which the creation of a liberal economic order allowing also for governmental and international intervention is pursued.

3. The „remedies“ pillar is the least developed one within the system of the Guiding Principles. Intense discussion and studies are still needed to bring more clarity into this field.

4. In the attempt to bring more clarity into this area guidance can be obtained by discussions that have taken place within the UN in the field of general human rights law and by ensuing academic studies referring to the respective documents.

5. The remedies mentioned in the Guiding Principles are formulated in a relatively „soft“ manner, after attempts to create „harder“ norms have failed. There are, however, initiatives underway to create a binding instrument in this field. According to the „Zero Draft“ for such a treaty much more restrictive rules are envisaged. It is, however, unlikely that such an instrument will meet with the necessary consensus within the foreseeable future.

6. In Europe, within the Council of Europe as well as within the European Union, various attempts have been undertaken to give further substance to the „remedies”. The relevant documents contain both an analysis of the law in force as well as proposals for new instruments to be introduced. These proposals are, however, in part rather far-reaching and thus it is unclear whether they can be realized any time soon.

7. If some pivotal questions shall be identified that have emerged as an issue for further discussion, the following can be mentioned:

7.1. The extraterritorial application of remedies

a) In this context, first of all, the specific approach taken by the US Courts when applying the Alien Tort Statute (ATS) has to be mentioned. However, after „Kiobel“ this development seems to have come to a halt.

b) Some hopes are associated with the application of tort law in Europe according to the „Brussels I”- and the „Rome II”-Regulation. However, on this basis European tort law can be applied to human rights violations by companies and subsidiaries abroad only to a very limited measure.

7.2. Criminal law as a remedy

According to some, remedies should be sought more forcefully within the realm of international criminal law. A closer look at the relevant norms reveals, however, that expectations should not be too high as to such an endeavour. International Investment Agreements (IIAs) and Counterclaims

Due to their „asymmetrical“ nature (As are intended to protect primarily the investor) IIAs do not offer, at first sight, a suitable basis for holding investors responsible for human rights abuses in the guest state. Recently, however, in the wake of the „Urbaser“ case, hopes have come up that counterclaims could be used to such avail. For the time being, however, these hopes are not justified. Nonetheless, attempts are under way to re-draft IIAs so that counterclaims are more easily available and, in general, to emphasize the responsibility of investors.

7.3. The national level

The national level is of decisive importance for finding remedies in the area of CSR. In this context, National Contact Points, National Action Plans and Corporate Social Reporting have to be mentioned. A wide array of initiatives have been taken in this field. Up to this moment the results are, however, not really convincing.

8. The Guiding Principles envisage a vast panoply of judicial and non-judicial initiatives, of State-based and non-State based measures. Many of these measures have to be further specified and tested. It is most probably too early to impose binding obligations in this field as the „Zero Draft“ ultimately intends. Further discussion and a further exchange of experience, as it happens within the „Forum on business and human rights”, seem to be the more promising way to follow.

 

Full (German) version: Peter Hilpold, Maßnahmen zur effektiven Durchsetzung von Menschen- und Arbeitsrechten: Völkerechtliche Anforderungen, in: August Reinisch, Stephan Hobe, Eva-Maria Kieninger & Anne Peters (eds), Unternehmensverantwortung und Internationales Recht, C.F. Müller, 2020, pp. 185 et seq.

The European Parliament’s Legal Affairs Committee issued on 22 April 2020 a draft report with recommendations to the Commission on a Digital Services Act which, we believe, is of particular interest for private international law (PIL) specialists.

While the document mainly focuses on the approximation of Member States’ substantive laws in the field of digital services, it also includes interesting considerations on PIL.

Background 

In the context of its follow-up to the Digital Single Market (DSM) Strategy, the European Union’s main objective is to ensure the best possible access to the online world for Union citizens and businesses. It requires to adopt rules promoting free provision of digital services while, at the same time, safeguarding fair competition between economic operators and the highest standard of consumer protection as well as personal data protection. Numerous rules covering different aspects of digitalisation, including private-law issues (see for instance, Directive 2019/770 on B2C contracts for the supply of digital content and services and Regulation 2019/1150 on promoting fairness and transparency for business users of online intermediation services), have already been adopted.

A quick look at the DSM Strategy acquis shows that the EU legislator has so far followed a sectorial approach. The e-commerce directive, pioneer in its time to enhance the emerging digitalisation in the field of services, has not been updated since its adoption in 2000. The text creates a common legal framework to ensure the free movement of “information society services”, i.e. economic activities which take place on-line, between Member States. It lays down an “internal market clause” in favour of service providers (also known as country of origin principle), as well as rules on electronic contracts, commercial communications and limited liability of intermediaries.

Today, a majority of experts agree that the liberal regime established by the directive appears outdated in the context of new digital services providers, such as social networks, collaborative economy platforms or online marketplaces (see the Google France case and the Glawischnig-Piesczek case decided by the Court of Justice). The scope of application of the directive, which rests inter alia on the notion of “provider of information society services”, is also widely questioned (see Elite Taxi Case and Airbnb).

Against this backdrop, the European Commission announced the future adoption of a Digital Services Act (DSA) to update the current horizontal regulatory framework. The proposal aims at strengthening the responsibility of online platforms and clarifying rules for the provision of online services.

Private International Law Issues

The treatment of PIL issues within the DSM Strategy is, until now, at best marginal. The European legislator has not said much on cross-border regulation of private-law relationships within the DSM acquis. In most cases, the secondary law limits itself to laying down that it “should be without prejudice to Union law concerning judicial cooperation in civil matters” (see Regulation 2018/302 on addressing unjustified geo-blocking, Article 1(6); Regulation 2019/1150, Article 1(5); Directive 2019/770, Recital 80).

We see this as a major oversight as the digital world is international by nature. First, the implementation of EU PIL instruments in the digital area is far from obvious. PIL is traditionally based on geographical location and connecting factors but online relationships are intrinsically “aterritorial”. Reconsidering EU PIL acquis – without necessarily reviewing it extensively – is essential (see recently Pedro de Miguel Asensio, Conflict of Laws and the Internet, Edward Elgar, 2020, announced here). Second, a coordinated implementation of EU substantive rules and PIL instruments is, in most cases, a prerequisite for the efficiency of the former.

Against this backdrop, the European Parliament draft recommendations provide for a meaningful set of considerations.

European Parliament Draft Recommendations

While the European Commission’s proposal is only expected in the last semester of 2020, the European Parliament (EP) has already started working on the future Digital Services Act (DSA). The EP’s Legal Affairs Committee released  draft recommendations aiming at “adapting commercial and civil law rules for commercial entities operating online” (2020/2019 (INL)). By doing so, the EP wishes to influence the content of the future DSA proposal but also ancillary regulation.

The draft report addresses different issues related to PIL including: (i) the role of EU PIL in ensuring an effective access for Union citizens and businesses to justice, (ii) the status of access rights to data under PIL, and (iii) the coordination between the scope of the future European digital services set of rules and PIL.

Assessment (i) Access to justice and PIL

The EP proceeds from the fact that contracts concluded by individuals or businesses with online service providers are generally pre-formulated standard contracts, which include exclusive choice of law and forum provisions. This contractual imbalance is likely to affect access to European justice for the co-contracting party, in particular when the service provider is established in a third country. The EP’s position on this issue is welcomed and coherent with the EU fundamental right to an effective judicial remedy (EU Charter of fundamental rights, Article 47; see also for a recent application under the GDPR, Article 78(1) and (2), and Article 79(1)).

It remains to be seen what concrete measures can be promoted in this field. Would it require to create a European forum necessitatis in digital services litigation? Would local courts be allowed, under certain conditions, to remove a jurisdiction clause in favour of a third country “imposed” by a digital services provider. These questions have to be read in connection with the mandatory nature of the forthcoming regulation (see infra (iii)) and perhaps also with the debate on the (non-)validity of a choice-of-court agreement, which aims at circumventing overriding mandatory provisions (from a French perspective, see Cass. Civ. 1re, 22 october 2008, Monster Cable, n°07-15.823).

(ii) Access rights to data and PIL

The second issue deals with PIL implications in the context of cross-border flows of data, closely linked to the provision of digital services. The draft report focuses on access rights to data, probably by reference to Article 15 of the GDPR. The main objective of this provision is to help individuals to understand why and how an operator is using their data. As, most of the time, the processing of data, as well as their transfer, are cross-border, PIL must be implemented. However, it is not always clear which PIL rules, among EU and national set of rules, are applicable, depending on the characterisation of the legal relationship concerned (see on this blog, Martina Mantovani, “Contractual Obligations as a Tool for International Transfers of Personal Data”). Moreover, due to the room for manoeuvre given to Member States by the GDPR for specific processing situations, the European data protection regime may lead to divergent solutions pursuant national laws. This may be detrimental to European individuals and can lead to regulatory competition and law shopping.

Against this backdrop, the EP asks for “clarification” but what does it mean?  The next step should be to increase legal certainty in the designation of the competent jurisdiction as well as of the applicable law in data protection litigation. This requires to review the weaknesses of the GDPR in this respect and start thinking about clear uniform PIL rules in the field. It will be a full-part legislative work, next to the future DSA.

(iii) Geographical scope of EU digital services law and PIL

Regarding the scope of the forthcoming DSA, the EP underlines the “importance of ensuring that the use of digital services in the Union is fully governed by Union law under the jurisdiction of Union courts”. Reference is made here to the mandatory nature of EU secondary provisions vis-à-visthird countries’ law.

This position, supporting the efficiency of EU law, is consistent with the approach taken by the European Court of Justice in the well-known Ingmar case. A similar statement is laid down in secondary law, for instance in the field consumer protection, in order to ensure a mandatory application of EU substantive rules (see Directive 2011/83 on consumer rights, Article 25). The same approach is now followed in some DSM instruments. They “should apply irrespective of the law otherwise applicable to a contract” – by definition, the law of a third country – (see Regulation 2019/1150, Recital 9 in fine; Regulation 2017/1128 on cross-border portability of online content services, Article 7(2) and Recital 25).

By contrast, the e-commerce directive is limited to the European market and does not apply to service providers established in third countries. This is the direct consequence of the internal market clause (Article 3), which can only benefit to European economic operators. However, this geographical limitation is outdated; many digital services providers are now established outside of the EU.

The efficiency of EU DSM substantive law depends on its ability to encompass the global dimension of trade, in particular when it comes to protect European values such as fair competition or the protection of the weaker party. To this end, EU PIL is a key ally.

Mandat d'arrêt européen

Cour d'appel de Paris, chambre de l'instruction, pôle 7, ch.4

Cour d'appel de Paris, chambre de l'instruction, pôle 7, ch.4

Edoardo Rossi has recently published a book on “La sharing economy nel diritto internazionale privato europeo” (Giappichelli Editore (Torino, Italy), November 2019, ISBN 9788892131880, available here). Edoardo Rossi has kindly accepted to share with us today not only the presentation and summary of contents of his book but also an extract. The latter focuses on prorogation of jurisdiction (jurisdiction clauses) in electronic contracts, with a particular focus on ascertaining the effectiveness of consent in this situation and with a view to the difficulties now raised by the ‘sharing economy’ in this respect.

__ Presentation of the book: “In the current economic and social context new and controversial sharing practices, offering anyone the opportunity to search for or make available goods or services on the market regardless of the professional or amateur nature of the persons involved, have emerged. These practices, very heterogeneous and concerning the most different areas of daily life, such as mobility, housing, business activities, communications, work, culture, communication, education and finance, have been linked to the notion of “sharing economy”, which brings them together by virtue of temporary access to goods or services, facilitated by the large-scale intervention of digital platforms, through which requests and offers are coordinated online in order to share goods or services.
The legitimacy of schemes linked to these new economic models has been challenged in a number of aspects, including low quality of services, safety of consumers, authorisation and licensing, taxes and compliance with competition rules. The inadequacy of the existing rules to deal with the provision of services through the sharing economy models has consequently emerged.
In spite of these critical profiles, the legal relations established through sharing economy platforms are constantly increasing around the world, implying the emergence of elements of transnationality, from which derives the recourse to the rules of private international law, in order to determine the applicable law and the judge competent to rule on any disputes.
The monograph thus attempts to analyse some of the most important private international law issues, such as the inadequacy of the party autonomy in regulating the phenomenon, especially with reference to the general terms and conditions of contract unilaterally drawn up by platform operators, which state that the latter is totally unrelated to the legal relations between users, often in conflict with the minimum level of consumer protection guaranteed by EU law and by the national legislations. Critical profiles have also been identified in the online conclusion of contracts that bind the parties involved in sharing economy legal relations, in ascertaining the effectiveness of consent on the choice of forum and choice of law clauses, in cases of potential related actions and in the location of the “domicile” of the platform operators”.

__ Extract: you can find it here , starting p. 4 of the pdf

__ Summary of contents: it may be found here

Non lieu à renvoi

Non lieu à renvoi

Non lieu à renvoi

Non lieu à renvoi

Presidenza del Consiglio dei Ministri
Espace de liberté, sécurité et justice
Selon l’avocat général Bobek, les États membres doivent accorder une indemnisation à toute victime d’une infraction intentionnelle violente, quelle que soit sa résidence

A quick note on MB and Services Limited and Golovina v United Company Rusal Plc [2020] JRC034 in which Birt C rejected an application for a stay on forum non conveniens grounds. He applied Spiliada of course,  with at 139 the reasons for holding on balance that there is a real risk that claimants will not obtain justice in Russia. Note at 7 the specific weight attached to the intimidation of claimants’ attorney in Russia.

Geert.

 

Application for stay on forum non grounds. Rejected, applying Spiliada principles.
Real risk claimants will not obtain justice in Russia, particularly following attempts at bribing claimants' lawyer. https://t.co/kgEuftBLvW

— Geert Van Calster (@GAVClaw) April 15, 2020

Országos Idegenrendeszeti Főigazgatóság Dél-alföldi Regionális Igazgatóság
Espace de liberté, sécurité et justice
Le placement des demandeurs d’asile ou des ressortissants de pays tiers faisant l’objet d’une décision de retour dans la zone de transit de Röszke, à la frontière serbo-hongroise, doit être qualifié de « rétention »