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Written by Tanja Domej, University of Zurich

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. It is essential for the effective enforcement of human and workers’ rights to create effective local institutions and procedures. This encompasses functioning, trustworthy and accessible civil courts, but also other public, private and criminal institutions and mechanisms (e.g. permission, licencing or inspection procedures to ensure safety in the workplace; accident insurance; trade unions). Civil litigation cannot be a substitute for such mechanisms – particularly if it takes place far away from the place where the relevant events occurred.

2. This, however, is not a reason against ensuring effective enforcement mechanisms, including judicial mechanisms, for private law claims arising from violations of human rights or claims aiming to prevent or to terminate such violations. Such judicial proceedings can also help to promote the establishment of effective local mechanisms for preventing and remedying violations.

3. The usual difficulties arising in cross-border litigation tend to be aggravated in cases concerning human rights violations in developing countries. In addition to issues of jurisdiction and choice of law, there are often considerable challenges particularly with respect to litigation funding, fact-finding and establishing the content of foreign law, if required.

4. Legal aid alone usually is not a viable financial basis for corporate human rights litigation. The funding of such claims largely depends on market mechanisms, particularly on success-based lawyers’ fees or commercial litigation funding. Because of the moral hazard that may arise in this context, it is desirable to promote the establishment of public-interest litigation funders. Nevertheless, “entrepreneurial litigating” in the field of corporate human rights cases cannot be considered as per se abusive. There seems to be a need, however, to monitor practices in this field closely to assess whether further regulation is required.

5. Where cross-border judicial cooperation is not functioning, taking of evidence located in a foreign state without involving authorities of the state where such evidence is located becomes increasingly important. A generous approach should be adopted in cases where “direct” taking of evidence neither violates legitimate third-party interests nor involves the use or threat of compulsion in the territory of a foreign state.

6. In cases where liability for damage inflicted by the violation of human rights standards depends on a business’s internal operations, it is essential for an effective access to remedy that either the burden of proof with respect to the relevant facts is on the business or that there is a disclosure obligation that ensures access to relevant information. Where such disclosure could endanger legitimate confidentiality interests (particularly with respect to trade secrets), appropriate mechanisms to protect such interests should be put in place.

7. Collective redress mechanisms can improve access to justice with respect to corporate human rights claims. Meanwhile, reducing an excessive burden on the courts that could result from a large number of parallel proceedings currently does not seem to be as important a consideration in practice in the field of corporate human rights litigation as it can be in other fields of mass tort litigation. Appropriate safeguards have to be put in place to protect both the legitimate interests of defendants and those of the members of the claimant group. When designing such safeguards, it is important to ensure that they do not lead to the obstruction of legitimate claims. Particularly in collective redress proceedings, the court should have strong case management and control powers, both during the proceedings and in the case of a settlement.

8. In addition to claims aiming at remedies for victims of violations, private law claims brought by non-government organisations, by public bodies or by individuals can at least indirectly contribute to the enforcement of human rights standards. Possible examples are claims on the basis of unfair competition, and possibly also contractual claims, because of false statements about production standards. Actions by associations or popular actions for injunctive or declaratory relief could also contribute to private enforcement of human rights standards. It remains to be seen whether litigation among businesses concerning contractual obligations to comply with human rights standards will play a meaningful role in this field in the future as well.

9. Soft law mechanisms and alternative dispute resolution can supplement judicial law enforcement mechanisms, but they are not a substitute for judicial mechanisms. In particular, human rights arbitration depends on a voluntary submission. Its practical effectiveness therefore requires the cooperation of the parties to the dispute. It would, however, be possible to create incentives for such cooperation.

 

Full (German) version: Tanja Domej, Zivilrechtliche Rechtsdurchsetzungsmechanismen, in: August Reinisch, Stephan Hobe, Eva-Maria Kieninger & Anne Peters (eds), Unternehmensverantwortung und Internationales Recht, C.F. Müller, 2020, pp. 229 et seq.

Catherine Kessedjian (Emeritus Paris II University) and Valérie Pironon (University of Nantes) have published the second edition of Catherine Kessedjian’s manual on international commercial law.

The authors have provided the following abstract in English:

The book aims at speaking not only to students, but also to practitioners and specialists in the field. Therefore, the authors have been careful at keeping a balance between basic information and some cutting edge developments in areas where the law is evolving fast.

First, the book addresses sources of the law and how applicable law is determined. It makes clear that international commercial activities are regulated at all levels (multilateral, regional and national) but also by a-national norms that have taken an ever increasing role in the field, thereby recognizing that Non-State actors do have a role in establishing norms for their own activities (and perhaps even further). As far as conflict-of-laws is concerned, the book starts with the study of mandatory norms because they are the ones that really matter in a field where party autonomy is the centerpiece. Any practitioner negotiating a deal needs to ascertain the extend of the freedom her client enjoys so that to craft the contract in the most efficient way.

The second part of the book is devoted to the actors of international commercial activities. Companies are the first and foremost actors in a world where the States have withdrawn from many fields. Now this was true before the covid-19 disease suddenly broke into our lives. States are now back and it will be for the third edition to appraise how much they will stay as the main player in the future. Two topics are covered when dealing with State activities: investment (when States are on the receiving hand) and immunity (when States as an actor ask for some sort of special treatment).

The third part deals with activities themselves and cover not only the access to markets but also some of the most classic international business activities (sales, distribution, transport). It also deals with the most common contract provisions (confidentiality, bona fide and cooperation, force majeure, CSR etc.) and takes into consideration trade practices. A section is also devoted to the guarantees put in place for the proper accomplishment of the activities.

The fourth part is devoted to dispute resolution. The first chapter is the most original. It gives a roadmap to negotiators as to how to choose the best dispute resolution mechanism for the contract. The rest is more classic and deals with mediation, arbitration and dispute before national courts (essentially French and European Law).

Finally it must be noted that emphasis is placed on contemporary debates such as globalization, electronic commerce, ecological challenges, CSR, transnational group actions, etc.) without avoiding the most controversial ones.

More details, including a full table of contents, can be found here.

La Cour de cassation revient sur sa jurisprudence antérieure et considère que l’interdiction de l’épilation à la lumière pulsée par des personnes autres que des médecins est contraire aux articles 49 et 56 du Traité sur le fonctionnement de l’Union européenne. 

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En vingt-quatre heures, la Cour de cassation s’est prononcée sur trois des QPC portant sur le sort de ceux qui, violant des dispositions prises dans le cadre de l’état d’urgence sanitaire à quatre reprises au moins, se retrouvent en correctionnelle.

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The Masaryk University opened the call for applications to the postdoctoral position in law. Since the call is not limited to any particular branch of law, it may be of interest to the readers of this blog. Application should be submitted by 31 May 2020 to vedavyzkum@law.muni.cz, which is also the contact for any inquiries.
Further information is available here.

Non lieu à renvoi

Non lieu à renvoi

Non lieu à renvoi

Written by Yannick Morath

Yannick Morath, doctoral candidate at the University of Freiburg, has kindly provided us with his thoughts on the CJEU’s judgement in the case of LG and Others v Rina SpA, Ente Registro Italiano Navale (C-641/18 – ECLI:EU:C:2020:349)

(See also the earlier post by Matthias Weller concerning the CJEU’s judgement).

1. Introduction

Private-law classification and certification societies play a vital role in modern economies. Especially in the maritime sector, external auditors issue certificates dealing with public tasks such as the seaworthiness and safety of vessels. Not only their contractual partners but also third parties rely on the accuracy of such certificates. Due to cross-border mobility of certificates and certified items, issues of Private International Law have to be taken into account when dealing with a certifiers’ liability.

When not applying the appropriate level of care, classification and certification agencies can – according to the CJEU – be sued in the courts of the Member State where the agency is seated. By finding this ruling, the CJEU had to deal with two interesting questions: Firstly, it had to establish whether an action for damages, brought against private certifiers falls within the concept of ‘civil and commercial matters’, and therefore, within the scope of the Regulation 44/2001 (Brussels I). Secondly, the CJEU had to examine the legitimacy of the certifier’s plea based on the principle of customary international law concerning immunity from state jurisdiction.

2. Facts of the ‘Rina-case’

In 2006, the Al Salam Boccaccio ’98, a ship sailing under the flag of the Republic of Panama, sunk in the Red Sea, tragically causing the loss of more than 1,000 lives. Relatives of the victims and survivors have brought an action under Italian law before the Tribunale di Genova (District Court, Genoa, Italy) against two private law corporations (the Rina companies), that are seated in Genoa and were responsible for the classification and certification of the ship.

The applicants argue that the defendants’ operations, carried out under a contract concluded with the Republic of Panama, are to blame for the ship’s lack of stability and its lack of safety at sea, which are the causes of its sinking. Therefore, they claim compensation from the Rina companies for the losses they suffered.

The Rina companies counter that the referring court lacks jurisdiction, relying on the international-law principle of immunity from jurisdiction of foreign States. They state that they are being sued in respect of activities, which they carried out as delegates of the Republic of Panama. The activities in question were a manifestation of the sovereign power of a foreign State and the defendants carried them out on behalf of and in the interests of that State.

The applicants, however, argue in favour of the case’s civil law nature, within the meaning of Article 1 (1) of Regulation 44/2001. As the Rina companies are seated in Genoa, the Italian courts should have jurisdiction under Article 2 (1) of that regulation. They submit that the plea of immunity from jurisdiction does not cover activities that are governed by non-discretionary technical rules, which are, in any event, unrelated to the political decisions and prerogatives of a State.

The Tribunale di Genova decided to stay the proceedings and consult the CJEU for further clarification under Article 267 TFEU.

3. Background: The dual role of classification and certification societies

When dealing with the classification and certification of ships it is important to be aware of the dual role private-law societies play in this area. Traditionally they are hired by a shipowner to attest that a ship is built in accordance with the standards of a specific ship class. Those ‘class rules’ are developed by the classification societies themselves. The maritime industry depends on these services, as the classification of a ship is necessary to evaluate its insurability and marketability. Therefore, these voluntary classifications are mainly prompted by private interest. This is referred to as the ‘private function’ of classification.

On the other hand, the same societies fulfil a ‘public function’ as well. Under international maritime law, states have a duty to take appropriate measures for ships flying under their flag to ensure safety at sea (Article 94 (3) of the United Nations Convention of the Law of the Sea). For this purpose ships have to be surveyed by a qualified personnel to make sure it meets all relevant safety and environmental standards. Flag states can perform these tasks themselves; however, most of them delegate executive powers to classification societies. Pursuant to Article 3 (2) of Directive 2009/15 this is also possible under EU law. When executing these powers classification agencies are subject to two contracts: The first one is the agreement on the delegation of powers with the flag state, the second contract is the actual certification agreement with the owner of the ship that is about to be surveyed. Whereas shipowners are free to choose one of the recognized classification societies, the certification itself is compulsory.

It must be noted that the classification according to class rules (private function) is a prerequisite for the statutory inspection and certification (public function). In the case at hand, the Rina companies were responsible for both aspects. They classified the ship in accordance with their class rules and then issued the statutory certificate on behalf of and upon delegation from the Republic of Panama. This public law background caused the need for clarification by the CJEU.

4. The CJEU on the interpretation of ‘civil and commercial matters’

Under Article 1(1) of Regulation 44/2001, the scope of that regulation is limited to ‘civil and commercial matters’. It does not extend, in particular, to revenue, customs or administrative matters. In order to ascertain whether Italian courts have jurisdiction pursuant to Article 2 (1) of that regulation it is necessary to interpret the concept of ‘civil and commercial matters’. This concept is subject to an autonomous European interpretation. By determining whether a matter falls within the scope of the Regulation, the nature of the legal relationships between the parties to the dispute is crucial. It must be noted that the mere fact that one of the parties might be a public authority does not exclude the case from the scope of the Regulation. It is, however, essential whether the party exercises public powers (acta iure imperii). These powers are ‘falling outside the scope of the ordinary legal rules applicable to relationships between private individuals’ (para. 34).

Following the Advocate General’s opinion and the CJEU’s judgement in Pula Parking (C-551/15 – ECLI:EU:C:2017:193), the Court notes that ‘it is irrelevant that certain activities were carried out upon delegation from a State’ (para. 39). The fact that the operations were carried out on behalf of and in the interest of the Republic of Panama and that they fulfil a public purpose, do not, in themselves, ‘constitute sufficient evidence to classify them as being carried out iure imperii’ (para. 41.).

In fact it must be taken into account that ‘the classification and certification operations were carried out for remuneration under a commercial contract governed by private law concluded directly with the shipowner of the Al Salam Boccaccio ’98’ (para. 45). Moreover, it is the responsibility of the flag state to interpret and choose the applicable technical requirements for the certification necessary to fly their flag.

The CJEU continues to examine the agency’s decision-making power. If the agency decides to withdraw a certificate, the respective ship is no longer able to sail. It argues, however, that this effect does not originate from the decision of the agency but rather from the sanction which is imposed by law (para. 47). The role of the certifier simply ‘consists in conducting checks of the ship in accordance with the requirements laid down by the applicable legislative provisions.’ As it is for the States to fix those provisions, it is ultimately their power to decide on a ship’s permission to sail.

Whereas the general remarks on the interpretation of ‘civil and commercial matters’ are convincing and based on settled case law, the findings about the ‘decision making power’ of recognised organisations give rise to further questions. If a ship does not comply with the relevant requirements, the statutory certificate must not be issued and the shipowner is not allowed to sail under the flag of the respective state. Even though this legal consequence is finally imposed by law, it is the certifier’s application of that law that leads to this effect. Whenever a certification agency refuses to issue a certificate, the ship is initially not able to sail. The CJEU’s technical perspective in paragraph 47 does not sufficiently appreciate the factual decision making of the certifier. The judgement does unfortunately not explicitly address the issue of legal discretion and its consequences on the concept of ‘civil and commercial matters’.

However, there are other grounds to qualify the case a ‘civil matter’. As the CJEU pointed out as well, it follows from Regulation 6 (c) and (d) of Chapter I of the International Convention for the Safety of Life at Sea, that the final responsibility is allocated to the flag state (para. 48). Therefore, the state is subject to far-reaching supervisory duties. Even though this is not expressively regulated by international or EU law, it appears like the flag state can at any time overrule an agency’s decision to issue or withdraw the certificate. This would result in a limitation to the finality of the agency’s powers and prepare the ground for a civil law qualification. Some further remarks by the CJEU about this aspect would have been interesting.

5. The CJEU on state immunity from jurisdiction

Doubts regarding the jurisdiction of the Italian courts arose from the Rina companies’ plea based on the principle of customary international law concerning immunity from jurisdiction. Pursuant to the principle par in parem non habet imperium, a State cannot be subjected to the jurisdiction of another State. ‘However, in the present state of international law, that immunity is not absolute, but is generally recognised where the dispute concerns sovereign acts performed iure imperii. By contrast, it may be excluded if the legal proceedings relate to acts which do not fall within the exercise of public powers’ (para. 56).

The CJEU held that this principle does not preclude the application of the Regulation in this case, although it is the referring court that has to examine whether the Rina companies had recourse to public powers within in the meaning of international law. It must be noted that a rule of customary international law will only exist where a given practice actually exists that is supported by a firm legal view (opinio iuris). Following the Advocate General, the CJEU finds that the case-law cited by the defendants ‘does not support the unequivocal conclusion that a body carrying out classification and certification operations may rely on immunity from jurisdiction in circumstances such as those of the present case` (c.f. para. 109 of his opinion).

In regard of state immunity, the CJEU changes its perspective on the case. Whereas the interpretation of ‘civil and commercial matters’ was driven by EU law, the doctrine of state immunity requires a different methodological approach, as it originates from international law. Nevertheless, the CJEU’s overall convincing remarks are in line with its earlier findings, setting a high bar for statutory certification societies to plead for state immunity.

6. Final remarks

The CJEU established legal security for the victims of maritime disasters such as the sinking of the Al Salam Boccaccio ’98. The judgement indirectly clarified the applicability of the Brussels I Regulation in cases where maritime certifiers operate only in their private function. When statutory certifications are a civil matter, this must a fortiori be the case for voluntary classifications. Having consistent results when establishing jurisdiction in such cases, also meets with the principle of foreseeability. The remarks on the applicability of the Brussels I regulation are also of significant relevance when dealing with the Brussels Ibis and the Rome I and II Regulations, as all of them apply the concept of ‘civil and commercial matters’.

Moreover, the judgement underlines the responsibility of private-law certifiers and recognises their vital role as regulators that operate in the public interest. Even though the CJEU’ findings on the interpretation of ‘civil matters’ are consistent with its earlier developed broad understanding of the concept, further clarification regarding privatised decision making powers would have been desirable.

Volotea / Commission
Aide d'État
Le Tribunal rejette les recours contre la décision de la Commission déclarant illégale l’aide de l’Italie en faveur de plusieurs compagnies aériennes desservant la Sardaigne

The author of this post is Aygun Mammadzada, PhD Researcher at the Institute of Maritime Law of the University of Southampton. This is the fifth in a series of posts aimed to explore the impact of the coronavirus crisis on the phenomena of mobility and exchange that form the constituent elements of private international law, and to discuss the responses that private international law rules provide to the challenges posed by the crisis itself (see the previous contributions by Giovanni Chiapponi, Matthias Lehmann, Tomaso Ferando and Caterina Benini). The EAPIL blog welcomes further contributions on these topics, either in the form of comments to the published posts or in the form of guest posts. Those interested in proposing a guest post for publication are encouraged to contact the blog’s editorial team at blog@eapil.org.

Beyond triggering global health crisis, the extremely rapid growth of COVID-19 pandemic has exacerbated significant disruptions for global order, as well as brought drastic effects on international commerce and trade. Interruptions in business transactions have become inevitable due to challenges in meeting contractual obligations, terminations and reliance on frustration or force majeure clauses. All these have given rise to considerable cross-border disputes and necessitated reasonable case management strategies.

Like other states the UK government has also taken several steps for fighting the spread of coronavirus and among other legislative measures recently adopted the Coronavirus Act 2020. The Act justifies giving extraordinary powers to the government in a broad spectrum of areas including the work of the courts and tribunals for navigating uncertainties and minimising potential risks for the judiciary. In the light of substantial significance of access to fair trial and administration of justice amid increasing coronavirus-related claims this post focusses on the implications of the outbreak for civil proceedings. While English courts would maintain ongoing or potential cases parties should expect the recent changes in procedural law and adapt new practices regarding filing the documents and attending the hearings.

Emergency Legislative Measures

On 19 March 2020, Lord Chief Justice delivered a message to the Civil and Family Courts about continuation of their work as a vital public service with a particular note that this would not be ‘business as usual’.  Following the nationwide lockdown that was officially declared across the UK on 23 March 2020 the Coronavirus Bill received Royal Assent on 25 March 2020 and became a Parliamentary Act. The key provisions affecting judicial proceedings are laid down in Sections 53-57 on expansion of video and audio technology by criminal and magistrates’ courts and public participation in live civil as well as criminal proceedings. As the Department of Health and Social Care has addressed these measures aim at keeping the courts open to the public, continuation of the proceedings without the need for the participants to attend in person and refraining delays in the administration of justice.

On the same day the HMCTS published an operational summary on avoiding physical hearings and arranging remote trials wherever possible, introduction of social distancing measures in courts and tribunals upon continuation of the ongoing proceedings. Since then there has been a daily summary of HMCTS operational position provided during the pandemic. With the purpose of consolidating the work of courts and tribunals into fewer buildings since 30 March 2020 there have been priority courts and tribunal buildings open to the public for essential face-to-face hearings, some staffed courts without being open to the public and temporarily suspended courts. The work of the courts and tribunals has been prioritised and divided into categories.

To further promote the use of technology by judiciary several pandemic-related updates were made to the Civil Procedure Rules. Practice Direction 51Y promotes audio and video hearings and open justice. It differentiates private hearings which can be recorded and accessed only in a manner directed by the court and public trials which are accessible by public and media representatives. It further states that the Direction ceases to have effect on the date on which the Coronavirus Act 2020 ceases to have effect according to Section 75 of that Act. Indeed, Section 89 determines the expiry date as the end of the 2 years’ period beginning with the day on which it is passed provided no alteration is made in this regard. Expecting audio and video hearings will still remain part of the procedure post-pandemic similar rules should be provided.

Practice Directions 51Z and 51ZA related to stay of possession proceedings and extension of time limits have been inserted into the CPR. Aiming at delaying possession proceedings, PD 51Z provides that they are stayed for a period of 90 days from 27 March 2020. The rules will cease to apply on 30 October 2020 which might not be reasonable taking into account the start date of the stay and its duration. If the rules apply only to those possession proceedings that have already been brought under CPR Part 55 and seeking to enforce an order for possession, would it be reasonable to set the expiry date of the PD as 30 October 2020? Put differently would the rules cover those claims that are brought between 27 March 2020 and 30 October 2020? Presumably yes, in spite of the current text of the direction lacks a clear indication.

PD 51ZA on the other hand enables the parties to agree an extension up to 56 days without formally notifying the court (rather than the current 28 days). Given that it has been agreed by the court any extension of more than 56 days is also possible. Similar to PD 51Z this Direction also ceases to have effect on 30 October 2020. Even if the Coronavirus Act is still in force for the initially determined two years’ period any extension between 30 October 2020 and 25 March 2022 would not be permitted which might bring controversies.

It should be emphasized that remote hearings and use of technology at trial is not entirely novel. Long before the pandemic and emergency act, English judges have already had wide discretion to hold the hearings and receive evidence by phone or other means of direct oral communication in civil proceedings. Video conferencing and telephone hearings in civil proceedings were introduced by the Access to Justice Act 1999 on the basis of Lord Woolf’s report reviewing civil justice system and discretionary powers of the judges to provide flexible, effective, less costly and less time-consuming litigation. Section 3.1(2) of the CPR determines case management powers of the judges and relevant procedure for telephone hearings and video conferencing is presented in Sections 6 and 7 of Practice Direction 23. The CPR also contains judicial guidance on the use of video conferencing in the civil courts (Annex 3 to the Practice Direction 29.1, which was referred by Barling J in Haider v Syed [2013] EWHC 4079 (Ch)).

It is also worth to recall Practice Direction 51V here which has established “the Video Hearings Pilot Scheme” running between 2 March 2020 and 30 November 2020. Regardless of its limited application only to the procedure setting aside default judgments by the court via an internet-enabled video link (“a video hearing”), together with the outcomes of the recent changes and gained experience they can contribute building a solid basis and practice for future proceedings.

Thus, notwithstanding familiarity with the use of technology in civil proceedings prior to the pandemic and Coronavirus Act, it was applied only to partial extent in relation to the receipt of the evidence from witnesses abroad and in person hearings have been encouraged as a traditional mode of conduct. Upon a sudden reversal of the circumstances face-to-face hearings are neither safe nor practically possible which endorses fully remote hearings. In his message on 19 March, Lord Chief Justice delivered that the procedural rules have already enabled flexible use of the telephone and video hearings by the civil and family courts, however, there might still be legal impediments. Therefore, the HMCTS is expanding availability of diverse technological means including phones, video facilities and Skype. As of the latest updates, besides Skype, Cloud Video Platform (CVP) and BT MeetMe have started to be used in some civil and family hearings.

In response to the COVID-19, the English Commercial Court had its very first fully remote hearing in the case National Bank of Kazakhstan the Republic of Kazakhstan v The Bank of New York Mellon SA/NV London & Ors [2020] EWHC 916 (Comm) on 19 March 2020. The virtual trial involving participants and witnesses from different jurisdictions lasted for four days, publicly accessible livestreaming and daily transcripts were provided in line with the legislation. Mr Justice Teare confirmed that the default position is to avoid adjournments where it is possible and in this regard parties’ cooperation and flexibility are extremely valuable.

As stated, “The courts exist to resolve disputes and, as I noted this morning, the guidance given by the Lord Chief Justice is very clear. The default position now, in all jurisdictions, must be that hearings should be conducted with one, more than one, or all participants attending remotely…” Such a policy aims at prevention of uncertainties arising out of the cases adjourned together with the filed ones which would have been waiting for the trials and getting hardly manageable.

The same approach was followed by the High Court in the case Re One Blackfriars Ltd, Hyde v. Nygate [2020] EWHC 845(Ch) where Mr John Kimbell QC refused the application of the claimants to adjourn, instead ordered the parties to prepare for trial. As commented, “The message is that as many hearings as possible should continue and they should do so remotely as long as that can be done safely”.

Impacts on the Procedural Landscape

Advantages of technological development are evident owing to cost-effectiveness and time friendliness of the remote hearings.  It not only enables participation of the parties or witnesses who are not able to travel within or outside places of their residence but also avoids delays and unnecessary costs except those resulting from the use of technology.

Nevertheless, there are still many issues that might arise and become hurdles for the operation of the proceedings. One issue is related to the fact that not everybody would be able to apply software and cope with the technological means. Although different guidance notes on how to join telephone and video hearings have been provided this does not prevent issues arising from impossibility of using technology by some users due to their unawareness, incapacities or physical conditions. That necessitates sensitivity and presumably creativity for seeking further options. Mr Justice MacDonald highlighted the “Press Here Stupid” guidance as known in the IT circles and asserted that, besides the parties the judiciary also contains a cohort of judges who may not use the software or lack necessary equipment for the operation of a remote hearing.

The HMCTS has provided a local helpline for technical support to join an audio or video hearing. In this regard probably the SIAC or LMAA experience could also be applied and trainings of the remote technology specialists and staff could be designated.

Unpresented parties such as homeless, chaotic due to alcohol or drug use or having mental health issues may also have similar difficulties to attend proceedings remotely by video or telephone. Likewise, not all the participants might have suitable facilities, hard or software utilities.

Another issue arising out of the remote hearings is related to the potential risks for privacy of the parties, as well as judges. The Protocol dated to 20 March 2020 (slightly revised on 26 March 2020) regarding remote hearings considered the communication platforms as non-exhaustive which would enable parties and the court to negotiate in this regard. Yet, confidentiality and privacy of the hearings remain under the risk of detriment. Likewise, backlogs, loss of network and cut-offs in connection are irresistible obstacles for the process. These necessitate extra expenses on technology platform licencing, data protection and more effective equipments for remote hearings.

Different jurisdictions might have varying approaches towards the matter. Section 53 the Coronavirus Act 2020 determines that recording a broadcast from the court or transmission of the proceeding materials by the participants of the live hearings shall count for an offence. By Schedule 25, the Act further inserted special provisions on the use of live video or audio links, public participation and offences of recording to the Courts Act 2003 (Section 85A-85D) and Tribunals, Courts and Enforcement Act 2007 (Section 29ZA-29ZD).

As it had already been presented in section 32 of the Crime and Courts Act 2013, private hearings shall be recorded in a manner directed by the court and the court may decide the hearing to be broadcasted and recorded in a wholly audio or video manner. The recordings might be accessed by the application of any person with the consent of the court, otherwise making or attempting to make any unauthorised recording or transmission of an image or sound during in relation to the broadcast might bring an offence of a person. Except making or use of sound recordings for purposes of official transcripts of proceedings, such unauthorised recordings might bring a contempt of a court in accordance with Section 9 of the Contempt of Court Act 1981.

Regardless of these provisions nothing can guarantee that there will not be any unauthorized recording of the parties or judges or social media posts. Relevant to this, copyright status of the live stream is not entirely clear. This was also raised in National Bank of Kazakhstan case and can be found in the transcript of the second day of the remote hearings. Presumably the court owns copyright since any operation regarding the recordings or streaming needs to get authorization by that court. It would be necessary to get parties’ consent prior to the actual hearings potentially by a particular protocol while filing documents electronically.

Some Thoughts on the Future Perspective

The new way of the hearings will hardly remove the traditional charisma of the courts and in person trials. On the other hand, remote hearings might hardly be possible in complex cases containing mass documentations, third parties and cross-examination of many witnesses. Still, digitisation will presumably continue even after the crisis ends.

In this regard, encompassing actions and a solid strategy are crucial for fixing the discussed problems and achieving constant benefits of technology. Even though implementation of a new initiative would most probably take longer amid timely urgency of the matter lessons could be learned from the status quo as a testing stage, a reasonable action plan could be established and applied post-crisis to achieve long-term effectiveness.

The intense use of technology at trials will advance the already existing fundamental principle of open justice in judiciary even after the crisis. While taking new initiatives judiciary might consider benefits that have already been offered by the ODR procedures for facilitating settlement and resolution of the disputes. Besides creative use of technology, cooperation of the parties with the court and compromise to narrow the disputes would be encouraged.

Along with the legislative measures taken within the borders, a global mechanism providing guidelines on remote hearings and accessible by the states would be useful for certainty and uniform standards at an international level. In this regard, the arbitration community (e.g. ICC, SIAC, ICSID) has been quite rapid in drafting case management updates and guidance documents for minimizing the impact of the COVID-19.

Apart from coronavirus guidelines prepared by various arbitration organizations (e.g. ICC, SIAC), another step in this regard has been the recent Seoul Protocol on Video Conferencing in International Arbitration achieved by Korean Commercial Arbitration Board (KCAB). While looking for innovations particular attention should be placed on the European practice. Videoconferencing has been a widely used tool in Europe both at national and regional levels on the basis of different legal frameworks including the EU regulations and protocols. “Videoconferencing” project has become an integral part of the European e-Justice action plan and the Council and Commission regularly collect and publish good practice and examples of the Member States. These might be helpful while preparing a long-term action plan notwithstanding withdrawal of the United Kingdom from the Union.

Last but not least, the quote of the ancient Greek poet, Euripides is worth to recall here: “Nothing has more strength than dire necessity”. Although the pandemic has brought enormous impacts on the justice systems and resulted in significant uncertainties in the proceedings every cloud has a silver lining. As many others the UK government has also taken serious measures to combat the crisis and reduce its negative effects on judiciary. However, numerous challenges at the testing stage have been eye-openers for the government to gain more insight of the national, regional or international systems, generate more innovative and creative solutions and develop a strategic action plan for the advanced use of technology at trials. These will most likely lead to inevitable revisions of the CPR rules and related statutes in the near future.

The JURI Committee of the European Parliament has now released its draft report of 27 April 2020 (Draft report with recommendations to the Commission on a Civil liability regime for artificial intelligence, PE650.556v01-00). One notes Article 9 within the suggested Proposal for a regulation on liability for the operation of Artificial Intelligence-systems:

“National provisions on compensation and limitation period

Civil liability claims brought in accordance with Article 8(1) shall be subject, in relation to limitation periods as well as the amounts and the extent of compensation, to the laws of the Member State in which the harm or damage occurred”.

The Court of Justice delivered last week (7 May 2020) its judgment in Case C‑641/18 (LG and Others v Rina SpA, Ente Registro Italiano Navale), which is about Article 1(1) of Brussels I.

Context and question: “LG and Others — relatives of the victims and survivors of the sinking of the Al Salam Boccaccio’98 vessel in the Red Sea on 2 and 3 February 2006, in which more than 1 000 people lost their lives — brought an action before the Tribunale di Genova (District Court, Genoa, Italy) against the Rina companies — ship classification and certification societies — whose seat is in Genoa.

15 LG and Others claim compensation for the pecuniary and non-pecuniary losses stemming from the Rina companies’ civil liability, arguing that the classification and certification operations for the Al Salam Boccaccio’98 vessel, carried out by the Rina companies under a contract concluded with the Republic of Panama, for the purposes of obtaining that State’s flag for that vessel, were the cause of that sinking.

16 The Rina companies contend that the referring court lacks jurisdiction, relying on the international-law principle of immunity from jurisdiction of foreign States. In particular, according to those companies, the classification and certification operations which they conducted were carried out upon delegation from the Republic of Panama and, therefore, are a manifestation of the sovereign powers of the delegating State.

17 According to LG and Others, by contrast, given that the Rina companies have their seat in Italy and the dispute at issue in the main proceedings is civil in nature, within the meaning of Article 1 of Regulation No 44/2001, the Italian courts have jurisdiction under Article 2(1) of that regulation. In addition, LG and Others submit that the plea of immunity from jurisdiction, relied on by the Rina companies, does not cover activities that are governed by non-discretionary technical rules which are, in any event, unrelated to the political decisions and prerogatives of a State.

18 The referring court raises the question of the jurisdiction of the Italian courts in so far as, while it is common ground that the Rina companies have their seat in Italy, it is claimed that they acted upon delegation from the Republic of Panama”.

Response: “Article 1(1) of Council Regulation (EC) No 44/2001 […] must be interpreted as meaning that an action for damages, brought against private-law corporations engaged in the classification and certification of ships on behalf of and upon delegation from a third State, falls within the concept of ‘civil and commercial matters’, within the meaning of that provision, and, therefore, within the scope of that regulation, provided that that classification and certification activity is not exercised under public powers, within the meaning of EU law, which it is for the referring court to determine. The principle of customary international law concerning immunity from jurisdiction does not preclude the national court seised from exercising the jurisdiction provided for by that regulation in a dispute relating to such an action, where that court finds that such corporations have not had recourse to public powers within the meaning of international law”.

Key points of the reasoning: “the mere fact that certain powers are delegated by an act of a public authority does not imply that those powers are exercised iure imperii” (at 39), “the fact that certain activities have a public purpose does not, in itself, constitute sufficient evidence to classify them as being carried out iure imperii, in so far as they do not entail the exercise of any powers falling outside the scope of the ordinary legal rules applicable to relationships between private individuals” (at 41) and “the fact that, having regard to their objective, some acts are carried out in the interest of a State does not, in itself, result in the operations at issue in the main proceedings being carried out in the exercise of public powers” (at 42).

Source: here

The Court of Justice delivered last week (7 May 2020) its judgment in joined cases C‑267/19 and C‑323/19 (Parking d.o.o. v Sawal d.o.o. (C‑267/19), and Interplastics s. r. o. v Letifico d.o.o. (C‑323/19)). The judgment is available in all EU official languages (save Irish), albeit not in English. Here is the French version :

Question : « Il convient […] de comprendre que, par ses deux questions, qu’il y a lieu d’examiner ensemble, la juridiction de renvoi demande, en substance, si, dans l’hypothèse où les décisions qu’elle rendra relèvent du champ d’application du règlement no 1215/2012, l’article 18 TFUE et l’article 47 de la Charte doivent être interprétés en ce sens qu’ils s’opposent à une réglementation nationale habilitant les notaires, agissant dans le cadre des compétences qui leur sont dévolues dans les procédures d’exécution forcée sur le fondement d’un document faisant foi, à rendre des ordonnances d’exécution qui, ainsi qu’il ressort de l’arrêt du 9 mars 2017, Pula Parking  (C‑551/15, EU:C:2017:193), ne peuvent pas être reconnues et exécutées dans un autre État membre ».

Réponse : « L’article 18 TFUE et l’article 47 de la charte des droits fondamentaux de l’Union européenne doivent être interprétés en ce sens qu’ils ne s’opposent pas à une réglementation nationale habilitant les notaires, agissant dans le cadre des compétences qui leur sont dévolues dans les procédures d’exécution forcée sur le fondement d’un document faisant foi, à rendre des ordonnances d’exécution qui, ainsi qu’il ressort de l’arrêt du 9 mars 2017, Pula Parking (C‑551/15, EU:C:2017:193), ne peuvent pas être reconnues et exécutées dans un autre État membre ».

Source : here

Le 3 avril 2020, la Commission européenne a modifié sa communication visant l’encadrement temporaire des aides d’État du 16 mars. En application de ce nouveau texte, le régime français de garantie pour les petites et moyennes entreprises dont les activités d’exportation pâtissent de la pandémie de coronavirus a par ailleurs été autorisé. 

en lire plus

L’exécution tardive, par un fonctionnaire, de son obligation d’aviser le procureur en vertu des dispositions de l’article 40, alinéa 2, n’est pas sanctionnée par la nullité. 

en lire plus

I reported earlier on complex enforcement issues concerning SAS Institute v World Programming. In [2020] EWCA Civ 599 SAS Institute Inc v World Programming Ltd Flaux J gives an overview of the various proceedings at 4:

The dispute between the parties has a long history. It includes an action brought by SAS against WPL in this country in which SAS’s claims were dismissed; a decision by WPL, following an unsuccessful challenge on forum non conveniens grounds, to submit to the jurisdiction of the North Carolina court and to fight the action there on the merits; a judgment in favour of SAS from the North Carolina court for some US $79 million; an attempt by SAS to enforce the North Carolina judgment in this jurisdiction which failed on the grounds that enforcement here would be (a) an abuse of process, (b) contrary to public policy and (c) prohibited by section 5 of the Protection of Trading Interests Act 1980 (“the PTIA”); and a judgment from the English court in favour of WPL for over US $5.4 million, which SAS has chosen to ignore.’

A good case to use therefore at the start of a conflicts course to show students the spaghetti bowl of litigation that may occur in civil litigation. There are in essence English liability proceedings, decided in the end following referral to the CJEU (Case C-406/10); North Carolina liability proceedings, in which WPL submitted to jurisdiction after an earlier win on forum non grounds was reversed on appeal and the NC courts came to the same conclusions as the English ones despite a finding they were not (clearly) under an obligation to apply EU law; next, an SAS enforcement attempt in England which failed (with permission to appeal refused): my earlier post reviews it; next, enforcement proceedings of the NC judgment in California. That CAL procedure includes an assignment order and WPL sought an anti-suit injunction to restrain SAS from seeking assignment orders as regards “customers, licensees, bank accounts, financial information, receivables and dealings in England”: it was not given the injunction for there was at the time no CAL assignment order pending which could be covered by anti-suit. Currently, it seems, there is, and it is an anti-suit against these new assignment orders which is the object of the current proceedings.

At 59 ff follows a discussion of the situs of a debt; at 64 ff the same for jurisdiction re enforcement judgments, holding at 72

Applying these internationally recognised principles to the present case, the North Carolina and California courts have personal jurisdiction over WPL but do not have subject matter jurisdiction over debts owed to WPL which are situated in England. That is so notwithstanding that the losses for which the North Carolina court has given judgment were incurred by SAS in the United States. Nevertheless the effect of the proposed Assignment Order would be to require WPL to assign debts situated in England to SAS which would at least purport to discharge its customers from any obligation owed to WPL, while the effect of the proposed Turnover Order would be to require WPL to give instructions to its banks in England which would discharge the debts situated in England currently owed by the banks to WPL. In substance, therefore, the proposed orders are exorbitant in that they affect property situated in this country over which the California court does not have subject matter jurisdiction, thereby infringing the sovereignty of the United Kingdom.

Which is later confirmed at 83. Consequently the earlier order is overturned: at 89: ‘it follows also that the judge’s conclusion that the Assignment and Turnover Orders were not “markedly exorbitant” was based upon a mistaken premise.’

The anti-suit and anti-enforcement applications are dealt with in particular with reference to comity, and largely granted with some collateral notices of intention by SAS not to seek a particular kind of enforcement.

Someone somewhere must have made partner on this litigation.

Geert.

 

 

Non lieu à renvoi

Cour d'appel de Paris, 6 mars 2020

Pourvoi c/ Cour d'appel d'Aix-en-Provence, 15 octobre 2019