Droit international général

Conventions & Instruments

On 24 May 2021, Niger deposited its instrument of accession to the HCCH 1993 Adoption Convention. With the accession of Niger, the Adoption Convention now has 104 Contracting Parties. It will enter into force for Niger on 1 September 2021. More information is available here.

Meetings & Events

On 4 May 2021, the HCCH participated in the virtual launch of the book Choice of Law in International Commercial Contracts, published by Oxford University Press. The recording of the event is available here.

From 3 to 6 May 2021, the Experts’ Group on the e-APP and New Technologies met via videoconference. The Group discussed the current use of the electronic Apostille Programme (e-APP), and future solutions. It endorsed a set of key principles and good practices for Contracting Parties in the implementation of the e-APP, and invited the PB to develop an online forum to facilitate intersessional discussion and information sharing, including in relation to best practices, between meetings of the Special Commission and the International Forum on the e-APP. More information is available here.

On 10 and 11 May 2021, the Administrative Cooperation Working Group on the 2007 Child Support Convention met via videoconference. The Group continued its work as a forum for discussion of issues pertaining to administrative cooperation, making significant progress on a Draft Statistical Report under the 2007 Child Support Convention. More information is available here.

From 18 to 22 May 2021, the HCCH co-organised a virtual seminar for judges on adoption and the protection of the rights of children and adolescents, in collaboration with the Judiciary Council and the Ministry of Economic and Social Inclusion of Ecuador. More information on the HCCH 1993 Adoption Convention is available here.

Publications & Documentation

On 21 May 2021, the HCCH and the World Intellectual Property Organization (WIPO) launched a questionnaire on the intersection of private international law and intellectual property. The Questionnaire is open for consultation to a wide audience, including Member States of both Organisations, other intergovernmental organisations, non-governmental organisations, practitioners, in-house counsel, academics and other private individuals. Responses will be received until 30 June 2021, after which they will be compiled and analysed, with the results to be submitted to the HCCH’s Council on General Affairs and Policy (CGAP) ahead of its 2022 meeting. More information is available here.

 

These monthly updates are published by the Permanent Bureau of the Hague Conference on Private International Law (HCCH), providing an overview of the latest developments. More information and materials are available on the HCCH website.

I have an article forthcoming on the application of Rome II’s Article 7, ‘environmental damage’ rule. Last week’s widely reported first instance ruling in the Dutch Shell climate case will of course now feature.

I reported on application of A7 in Begum v Maran. There I submit, the Court of Appeal engaged without sufficient depth with the Article. It held against its application. Xandra Kramer and Ekaterina Pannebakker then alerted us to the use of Article 7 in last week’s momentous Milieudefensie v Shell (umpteen) ruling [Dutch version here, English version here], in which Shell by a first instance judge has been ordered to reduce its CO2 emissions. In that ruling, too, the judges leave a lot of issues on Rome II underanalysed. The conclusion  however goes in the opposite direction: the court held A7 is engaged and leads to Dutch law as the lex loci delicti commissi (Handlungsort or ldc).

I have taken the Dutch version of the judgment as the basis for the analysis for the English version is a touch under par when it comes to the finer detail. The Dutch version it has to be said is not entirely clear either on the conflict of laws analysis.

Firstly, Milieudefensie argue that A7 is engaged, and it suggests it opts for Dutch law given the choice left to it by that Article. Whether it does so as lex loci damni (Erfolgort or ld) or lex loci delicti commissi is not specified. It is reported by the courts that in subsidiary fashion Milieudefensie argue that per A4(1)’s general rule, Dutch law is the lex causae: that has to be Erfolgort.  (Lest the court inaccurately reported parties’ submissions here and the argument made under A4 focused on Article 4(3)’s displacement rule) [4.3.1].

The judges further report [4.3.2] that parties were in agreement that climate change, whether dangerous or otherwise, due to CO2 emissions constitutes ‘environmental damage’ in the sense of A7 Rome II (and the judges agree) and that they were in disagreement on the locus delicti commissi. Milieudefensie argue that Shell’s holding policy viz climate change and emissions, dictated from its corporate home of The Netherlands, is that Handlungsort. Shell argue that the place of the actual emissions are the Handlungsorts (plural), hence a Mozaik of applicable laws. (This nota bene has interesting applications in competition law, as I suggest here).

Then follows a rather sloppy reference to Jan von Hein’s note bene excellent review of Article 7 in Calliess; distinguishing of the arguments made by Shell with reference to ia product liability cases; and eventually, with reference to ia the cluster effect of emissions (‘every contribution towards a reduction of CO2 emissions may be of importance’ [4.3.5]) and the exceptional, policy driven nature of A7, the conclusion [4.3.6] that the holding policy is an independent cause of the CO2 emissions and hence imminent climate damage and obiter [4.3.7] that A4(1) would have led to the same conclusion.

The ruling will of course be appealed. It would be good to get the application of Article 7 right, seeing as environmental law is a core part of strategic and public interest litigation.

Geert.

EU Private International Law, 3rd. ed. 2021, Chapter 4, Heading 4.6.3 (4.54 ff).

 

 

 

 

 

Jurisdiction is a fundamental aspect of Nigerian procedural law. In Nigerian judicial parlance, we have become accustomed to the principle that the issue of jurisdiction can be raised at any time, even at the Nigerian Supreme Court – the highest court of the land – for the first time.[1] The concept of jurisdiction in Nigerian conflict of laws (often called “territorial jurisdiction” by many Nigerian judges) is the most confusing aspect of Nigerian conflict of laws. This is because the decisions are inconsistent and not clear or precise. The purpose of this write up is to briefly highlight the confusion on the concept of jurisdiction in Nigerian conflict of laws through the lens of a very recently reported case (reported last week) of Attorney General of Yobe State v Maska & Anor. (“Maska”).[2]

In Maska the 1st claimant/respondent instituted an action for summary judgment against the defendant/appellant and the 2nd respondent at the High Court of Katsina State for breach of contract. The 1st claimant/respondent alleged that the defendant/appellant purchased some trucks of maize from the 1st claimant/respondent and promised to pay for it. The 1st claimant/respondent also alleged that the defendant/appellant failed to pay for the goods, which resulted in the present action. It was undisputed that the place of delivery (or performance) was in Kastina State, the 1st claimant/respondent’s place of business, where the defendant/appellant took delivery of the goods. However, the defendant/appellant challenged the jurisdiction of the Kastina State High Court to hear the case on the basis that the contract in issue was concluded in Yobe State, where  it claimed the cause of action arose, which it argued was outside the jurisdiction of Kastina State. On this basis the defendant/appellant argued that the court of Yobe State had exclusive jurisdiction.

The High Court of Kastina State assumed jurisdiction and rejected the argument of the defendant/appellant. The defendant/appellant appealed but it was not successful. The Court of Appeal held that the concept of territorial jurisdiction for breach of contract is based on any or a combination of the following three factors – (a) where the contract was made (lex loci contractus); (b) where the contract is to be performed (lex loci loci solutions);.and (c) where the defendant resides. In the instant case, the place of performance – particularly the place of delivery – was in Kastina State – so the High Court of Kastina State could assume jurisdiction in this case.[3]

 

Maska adds to the confusion on the concept of jurisdiction in Nigerian conflict of laws. In Maska, the focus was on what it labeled as “territorial jurisdiction for breach of contract” in inter-state matters. In international and inter-state matters, Nigerian judges apply at least four approaches in determining whether or not to assume jurisdiction in cases concerned with conflict of laws.

First, some Nigerian judges apply the traditional common law rules on private international law to determine issues of jurisdiction.[4] This approach is based as of right on the residence and/or submission of the defendant to the jurisdiction of the Nigerian court. Where the defendant is resident in a foreign country and does not submit to the jurisdiction of the Nigerian court, then leave of court is required in accordance with the relevant civil procedure rules to bring a foreign defendant before the Nigerian Court. This is all subject to the principle of forum non conveniens – the appropriate forum where the action should be brought in the interest of the parties and the ends of justice. In Maska, the common law approach of private international law was not applied. If it was applied the High Court of Kastina State would not have had jurisdiction as of right because the defendant/appellant was neither resident in Kastina State nor submitted to the jurisdiction of the Kastina State High Court. In recent times, the common law approach to conflict of laws appears to be witnessing a steady decline among Nigerian appellate judges except for Abiru JCA (a Nigerian Court of Appeal judge) who has vehemently supported this approach by submitting that the concept of territorial jurisdiction in Nigeria is one of the misunderstood concepts of Nigerian conflict of laws.[5]

Second, some Nigerian judges apply choice of venue rules to determine conflict of law rules on jurisdiction.[6] This is wrong. Indeed, some Nigerian judges have rightly held that choice of venue rules are not supposed to be used to determine matters of jurisdiction in Nigerian conflict of laws.[7] Choice of venue rules are used to determine which judicial division within a State (in the case of the State High Court) or judicial division within the Nigerian Federation (in the case of the Federal High Court) has jurisdiction. Choice of venue rules are mainly utilised for geographical and administrative convenience. Unfortunately, it appears that in Maska choice of venue rules were utilised to determine the jurisdiction of the Kastina State High Court in matters of conflict of laws. Order 10 rule 3 of the Kastina State High Court Civil Procedure Rules provides that all suits for breach of contract “shall be commenced and determined in the Judicial Division in which such contract ought to have been performed or in which the defendant resides or carries on business.” Although Maska did not explicitly refer to Order 10 rule 3, it referred to some  previous decisions of Nigerian appellate judges that were influenced by choice of venue rules to determine which court has jurisdiction in matters of conflict of laws.[8] Maska makes the confusion more problematic because it did not cite the wrong choice of venue rules in question (Order 10 rule 3 of the Kastina State High Court Civil Procedure Rules) but wrongly created the impression that this represents the position on Nigerian conflict of laws on jurisdiction.

Third, some Nigerian judges apply the strict territorial jurisdiction approach.[9] This approach is that a Nigerian court cannot assume jurisdiction where the cause of action arose in one State, or another foreign country. I label this approach as “strict” because my understanding of the Nigerian Supreme Court decisions on this point is that based on constitutional law a Nigerian court is confined to matters that arose within its territory, so that one State High Court cannot assume jurisdiction over a matter that occurs within another territory. This approach is also wrong as it ignores the principles of traditional Nigerian common law conflict of laws. It also leads to injustice and unduly circumscribes the jurisdiction of the Nigerian court, which ultimately makes Nigerian courts inaccessible and unattractive for litigation. Nigerian courts should have jurisdiction as of right once a defendant is resident or submits to the jurisdiction of the Nigerian court. In Maska, even if the strict territorial jurisdiction approach was applied, the Kastina State High Court would probably have jurisdiction because the cause of action for breach of contract arose in Kastina State where the defendant/appellant took delivery of the goods.

Fourth some Nigerian judges apply the mild territorial jurisdiction approach.[10] This approach softens the strict territorial jurisdiction approach. This is an approach that has mainly been applied by the Nigerian Court of Appeal probably as a way of ameliorating the injustice of the strict territorial approach applied in some Nigerian Supreme Court decisions. This approach is that more than one court can have jurisdiction in matters of conflict of laws where the cause of action is connected to such States. With this approach, all the plaintiff needs to do is to tailor its claim to show that the cause of action is also connected to its claim. The danger with this approach is that it can lead to forum shopping and unpredictability – the plaintiff can raise the slightest grounds on why the cause of action is connected with its case to institute the action in any court of the Nigerian federation.  The mild territorial jurisdiction approach was applied in Maska because the Court of Appeal held either the Kastina State High Court or Yobe State High Court could assume jurisdiction as the cause of action was connected with both of them.

 

In conclusion, in very recent times the Nigerian traditional common law principle of conflict of laws (based on English common law conflict of laws without EU influences) on jurisdiction is beginning to witness a steady decline among Nigerian judges and lawyers. The concept of strict territorial jurisdiction, mild territorial jurisdiction, and choice of venue rules appears to be the current norm despite criticism from some Nigerian academics and even a Court of Appeal judge (Justice Abiru).[11] Maska is just another case that demonstrates why the principle of private international law should feature more in the parlance of Nigerian lawyers and judges. I have argued for judicial decisions and academic works in private international law in Africa to be intellectually independent and creative. This means that in Nigeria we should not blindly follow English common law rules. It could be that the common law approach might be an inadequate basis of jurisdiction for Nigerian private international law especially in inter-state matters.  For example in Maska, if the Kastina State High Court had applied the common law private international law rules, it would not have had jurisdiction despite being the place of performance, since the defendant was neither resident nor submitted to the jurisdiction of the court! Should there be a reformulation of the principle of jurisdiction in Nigerian conflict of laws in international and inter-state matters so that it is clear, consistent and predictable? This is a discussion for another day.

 

[1]Madukolu v Nkemdilim ( 1962) 2 SCNLR 341; Drexel Energy and Natural Resources Ltd v Trans International Bank Ltd ( 2008 ) 18 NWLR (Pt. 1119) 388, 424 – 27, 437 – 38 Dangote General Textiles Products Ltd v Hascon Associates (Nig) Ltd ( 2013 ) 16 NWLR (Pt. 1379) 60, 91; B Apugo & Sons Ltd v Orthopaedic Hospitals Management Board ( 2016 ) 13 NWLR 206, 240. In principle, what can be raised for the first time on appeal is procedural jurisdiction and not substantive jurisdiction as prescribed by the Constitution or enabling statute. This is a point that has been stressed by Abiru JCA in recent cases such as Khalid v Ismail ( 2013 ) LPELR-22325 (CA); Alhaji Hassan Khalid v Al-Nasim Travels & Tours Ltd ( 2014 ) LPELR-22331 (CA) 23 – 25 ; Nigerian National Petroleum Corporation v Zaria ( 2014 ) LPELR-22362 (CA) 58 – 60; Obasanjo Farms (Nig) Ltd v Muhammad ( 2016 ) LPELR-40199 (CA).

[2](2021) 7 NWLR (Pt. 1776) 535.

[3] Attorney General of Yobe State v Maska & Ano (2021) 7 NWLR (Pt. 1776) 535, 548-9.

[4]See generally British Bata Shoe Co v Melikan (1956) SCNLR 321; Nigerian Ports Authority v Panalpina World Transport (Nig) Ltd (1973) 1 ALR Comm 146, 172;  Muhammed v Ajingi  (2013) LPELR-20372 (CA);  Barzasi v Visinoni (1973) NCLR 373.

[5]Muhammed v Ajingi  (2013) LPELR-20372 (CA) 23-5; Foreword to CSA Okoli and RF Oppong, Private International Law in Nigeria (1st edition, Hart, Oxford, 2020); ‘The Concept of Territorial Jurisdiction’ in IO Smith (ed), Law and Developments in Nigeria: Essays in Honour of Alhaji Femi Okunnu, SAN, CON ( Ecowatch Publications (Nig) Ltd , 2004).

[6]See generally the Supreme Court cases of; Dangote General Textiles Products Ltd v Hascon Associates (Nig) Ltd (2013) 16 NWLR (Pt. 1379) 60; First Bank of Nigeria Plc v Kayode Abraham (2008) 18 NWLR (Pt. 1118) 172; Arjay Ltd v Airline Management Support Ltd (2003) 7 NWLR (Pt. 820) 57.

[7]British Bata Shoe Co v Melikian (1956 ) SCNLR 321, 325 – 26, 328; Muhammed v Ajingi (2013) LPELR-20372 (CA);  Zabusky v Israeli Aircraft Industries (2008) 2 NWLR (Pt. 109) 109, 133-6;  Ogunsola v All Nigeria Peoples Party (2003) 9 NWLR (Pt. 826) 462, 480

[8]A.-G. Abia State v. Phoenix Environmental Services Nig. Ltd (2015) LPELR-25702

[9] See the Supreme Court cases of Capital Bancorp Ltd v Shelter Savings and Loans Ltd (2007) 3 NWLR 148; Dairo v Union Bank of Nigeria Plc (2007) 16 NWLR (Pt 1059) 99; Mailantarki v Tongo & Ors (2017) LPELR-42467; Audu v. APC & Ors (2019) LPELR – 48134.

[10]Sarki v Sarki & Ors (2021) LPELR – 52659 (CA).; Onyiaorah v Onyiaorah (2019) LPELR-47092 (CA).

[11]See generally Abiru JCA in Muhammed v Ajingi  (2013) LPELR-20372 (CA) 23 – 25, 25 – 26;  CSA Okoli and RF Oppong, Private International Law in Nigeria (1st edition, Hart, Oxford, 2020) 95-103; AO Yekini, “Comparative Choice of Jurisdiction Rules in Cases having a Foreign Element: are there any Lessons for Nigerian Courts?” (2013) 39 Commonwealth Law Bulletin 333; Bamodu O., “In Personam Jurisdiction: An Overlooked Concept in Recent Nigerian Jurisprudence” (2011) 7 Journal of Private International Law 273.

On 11 May 2021, the Juzgado de lo Mercantil nr. 17 of Madrid has submitted a request for a preliminary ruling to the Court of Justice of the European Union (CJEU) on the interpretation of Articles 101 and 102 TFUE, on the one hand, and of Articles 45, 49, 56 and 63 TFUE, on the other, in the frame of a declaratory claim filed on behalf of European Superleague Company S.L. on 19 April 2021. Readers may recall that inaudita alter parte interim measures were granted the next day.

The Juzgado refers now six questions to the CJEU – maybe a bit over the threshold which separates interpreting EU law and applying it to the case at hand. In a nutshell, the Spanish court is asking whether specific provisions in the bylaws of UEFA and FIFA fall under the prohibition of either Article 101 or Article 102, or both. In case of an affirmative answer regarding the former, the court asks whether the exception in para 3 of Article 101 could nevertheless apply. In case of a positive answer vis à vis Article 102, the equivalent question is whether such a restriction could benefit from an objective justification. In addition, the referring court is asking about the compatibility between the prior authorization FIFA and UEFA require for the establishment of a pan-European club competition, and the free movement of persons, services and capital.

While waiting for the request to be available at the website of the CJEU, I have made the following translation (questions one and two are practically identical in Spanish; I changed a little bit the wording in an attempt to make them more intelligible):

1. Must Article 102 TFEU be interpreted as prohibiting FIFA and UEFA, which have conferred upon themselves an exclusive competence to organize or authorize international club competitions in Europe, an abuse of a dominant position consisting in imposing in their Statutes ( in particular, articles 22 and 71 to 73 of the FIFA Statutes, articles 49 and 51 of the UEFA Statutes, and any similar article contained in the statutes of member associations and national leagues) any third party entity wishing to establish a new pan-European club competition such as the Super League the need to obtain prior authorization, in particular as there is no regulated procedure based on objective, transparent and non-discriminatory criteria, and taking into account the possible conflict of interests that would affect FIFA and UEFA?
2. Must Article 101 TFEU be interpreted as meaning it prohibits FIFA and UEFA, which have granted themselves exclusive competence to organise or authorise international competitions in Europe, to require in their statutes (in particular Articles 22 and 71 to 73 of FIFA’s statutes, Articles 49 and 51 of UEFA’s statutes, and any similar article in the statutes of member associations and national leagues) their prior authorisation for any third party entity to establish a pan-European club competition, such as that at issue in the main proceedings, in particular as there is no regulated procedure thereto based on objective and non-discriminatory criteria, and taking into account the possible conflict of interest that would affect FIFA and UEFA?.
3. Should articles 101 and / or 102 TFEU be interpreted as meaning that they prevent FIFA, UEFA, their member associations and / or national leagues, to threaten with sanctions the clubs participating in the Super League, and / or its players, in light of the deterrence effect such threats can generate? In case sanctions for exclusion from competitions or the prohibition to participate in national team matches are adopted, would they, without being based on objective, transparent and non-discriminatory criteria, constitute a violation of Articles 101 and / or 102 of the TFEU?
4. Are Articles 101 and/or 102 TFEU to be interpreted as incompatible with Articles 67 and 68 of the FIFA Statute, in so far as the latter identify UEFA and its national federations as ‘original holders of all rights arising from competitions… within their respective jurisdiction’, thus depriving participating clubs and any alternative competition organiser of the original ownership of said rights, and assuming the exclusive responsibility for their marketing?
5. If FIFA and UEFA, as entities entrusted with exclusive competence to organise and authorise international football clubs competition in Europe, prohibit or oppose, on the basis of the abovementioned provisions of their statutes, the development of the Super League, must Article 101 TFEU be interpreted as meaning that those restrictions on competition benefit from the exception it provides for, considering that: production is substantially limited, alternative products to those offered by FIFA / UEFA in the market is prevented, and innovation is restricted in that other formats and modalities are prevented, thus potential competition in the market is removed and consumer choices limited? Would such a restriction have an objective justification, so that it could be concluded that there is no abuse of a dominant position within the meaning of Article 102 TFEU?
6. Are Articles 45, 49, 56 and/or 63 TFEU to be interpreted as meaning that a provision such as that contained in the FIFA and UEFA Statutes (in particular under Articles 22 and 71 to 73 of the FIFA statutes, Articles 49 and 51 of the UEFA Statutes and any other similar article contained in the statutes of associations belonging to national leagues) constitutes a restriction of one of the fundamental freedoms enshrined in those provisions, in that it requires prior authorisation of those entities for an economic operator of a Member State to establish a pan-European competition?

The Auto (Order) is available in Spanish here. I would also like to draw attention to the post of 22 April 2021, by Dwayne Bach, in the Kluwer Competition Law Blog, where he makes a first assessment of the situation under EU competition law.

The Department of Juridical Sciences of the University of Bologna, Ravenna Campus, has organized a Summer School on Transnational Jurisdiction: Current Issues In Civil And Commercial Matters, to be held in Ravenna (and online), on July 19-23, 2021.

The Faculty of the Summer School is composed of experts from different jurisdictions, focusing on several aspects of private international and procedural law. The Director of the School is Prof. Michele Angelo Lupoi, who teaches Civil Procedural Law and European Judicial Cooperation at the University of Bologna. The Summer School is aimed at law students as well as law graduates and law practitioners who want to obtain a specialised knowledge in this complex and fascinating area of International civil procedure. The lectures, if the conditions will make it possible, will be held in a blended way, both
in presence and online.

The pre-registration form and the program of the Summer School may be downloaded from this link.

Registration is open until 2 July 2021. The registration fee is 200,00 €. The Bar Association of Ravenna will grant 20 formative credits to lawyers who participate in the Summer School.

The European Association for Family and Succession Law is organizing an international Conference on Minor’s Right to information in EU civil cases: Improving children’s right to information in cross-border civil cases.

The online Conference will take place via Zoom on Thursday, 17th June 2021 (3.00-6.00 pm CEST) and on Friday, 18th June 2021 (10.00 am-6.00 pm CEST). Here is the full programme of the event. Participation is free, online registration is necessary to receive via email the link to the Zoom meeting. The link will be sent shortly before the conference.

The online Conference will present the main results of the EU co-funded research project “MiRI” (“Minor’s Right to Information in civil actions – Improving children’s right to information in cross-border civil cases”, Justice Programme 2014-2020, JUST-JCOO-AG-2018, GA 831608).

The Latin American Section of the Société de législation comparée, together with the Institute of Public Law of Brasilia, is organizing a series of webinars on the International Commission on Civil Status (ICCS, in French Commission internationale de l’état civil (CIEC)). The webinars will take place on 1, 8 and 15 June 2021 at 9 am (Brasilia time), 2 pm (CEST time) in English.

Programme

1st June – Presentation of the International Commission on Civil Status (ICCS)

Opening: Pr. Francisco Schertel – Dean of the Law Faculty, IDP and Pr. Maria Rosa Loula – Professor at IDP

Introduction: Mrs. Jeannine Dennewald – President of the ICCS

Developments: Mr. Nicolas Nord – Secretary General of the ICCS and Ms. Camille Reitzer – Deputy Secretary General of the ICCS

Discussions: Mr. Homero Andretta Junior, Director of the International Affairs Department at the Attorney General’s Office

Moderators: Prs. Maria Rosa Loula

June 8 – The normative instruments of the ICCS – circulation of acts and decisions

Introduction: Mr. Nicolas Nord – Secretary General of the ICCS

Developments: Ms. Camille Reitzer – Deputy Secretary General of the ICCS

Discussions:  Mrs. Chloé Hubart – Chloé Falisse and Margot Bruyninckx, representative of the Belgium Federal Justice Service; Mr. Michel Montini – representative of the Swiss Federal Civil Status Office

Moderator: Mrs.  Maria Rosa Loula – Professor at IDP

June 15 – The normative instruments of the ICCS – State cooperation in matters of civil status and harmonization of personal and family law 

Introduction: Mr. Nicolas Nord – Secretary General of the ICCS

Developments: Ms. Camille Reitzer – Deputy Secretary General of the ICCS

Discussions:  Mrs. Nadia de Araujo, Professor at Rio de Janeiro Catholic University ; Mrs. Chloé Falisse and Margot Bruyninckx – representative of the Belgium Federal Justice Service; Representative of the Spanish Ministry of Justice

Moderator: Mrs.  Maria Rosa Loula – Professor at IDP

The event will be livestreamed in English only

Free registration: https://www.idp.edu.br/eventos/the-international-commission-on-civil-status-base-of-international-cooperation-in-the-field-of-civil/

The Assas International Law Review (Revue de droit international d’Assas) is an online journal published once a year by the doctoral school of the University. It features articles on public and private international law written by professors and doctoral students.

The main theme of the 2020 issue is climate change and international law. The issue features ten articles on this topic. It also includes short articles summarizing the doctoral theses recently defended at the University and three more articles on various topics.

Of particular note for private international law scholars is an article written by Eduardo Alvarez-Armas (Brunel Law School) on Climate change litigation and Article 17 Rome II (Le contentieux international privé en matière de changement climatique à l’épreuve de l’article 17 du règlement Rome II : enjeux et perspectives). The author has kindly provided the following abstract:

The article is the first instalment in a series of three pieces of work on the interplay between climate change matters and private international law. It sketches, as a first approximation, the role that the EU’s private international instruments may play in “private international” climate change litigation, which could be roughly defined as litigation: i) amongst private parties; ii) of a private-law (generally, tort-law) nature; iii) conducted on the basis of private-international-law foundations; iii) over damage threatened or caused by climate-change-derived phenomena.

After some general/introductory considerations, the article explores a selection of difficulties that may arise in climate change litigation from the interplay between Article 7 of the Rome II Regulation (the EU’s choice-of-law provision on the law applicable to non-contractual obligations arising from environmental damage) and Article 17 Rome II, a general provision on “Rules of safety and conduct”, which establishes that “[i]n assessing the conduct of the person claimed to be liable, account shall be taken, as a matter of fact and in so far as is appropriate, of the rules of safety and conduct which were in force at the place and time of the event giving rise to the liability”. In order to conduct its assessment, the article uses as an illustration Lliuya v. RWE (a case currently pending before German courts which, irrespective of its ultimate outcome, is prone to become a milestone) and builds a hypothetical model thereon. The model analyses the said Art. 7-Art. 17 interplay in practice, when further confronted with EU rules on international jurisdiction and domestic rules of public law and/or administrative authorizations/permits, depicting a concerning landscape in terms of climate action and environmental protection.

As this is a piece on “enjeux et perspectives”, it presents a first set of conclusions, amongst which, notably, that the “ordinary” use (literal interpretation and mandatory application) of Article 17 of the Rome II Regulation (which seems to be “pro-polluter”) is incompatible with the polluter-pays and favor laesi principles, and needs to be blocked in “private international” climate-change litigation (and possibly in all instances of “private international” environmental litigation).

This “introductory” article will be followed by two further pieces of work. The first one will take a “micro” perspective and provide a further analysis (in English) of the referred Art. 7-Art. 17 interplay. The second one (in English too) is a contribution to the collective research project “The Private Side of Transforming the World – UN Sustainable Development Goals 2030 and the Role of Private International Law”, led by Ralf Michaels, Verónica Ruíz Abou-Nigm, and Hans van Loon. It will explore the overall intersection between private international law and climate change matters from a “macro” perspective, by addressing the contribution that private international law may make to the United Nation’s “Sustainable Development Goal” 13: “Take urgent action to combat climate change and its impacts”.

The International Commercial Chamber of the Court of Appeal of Paris (France) delivered on 25 May 2021 a judgment on International jurisdiction under Brussels I bis (ICCP-CA RG 20/12522).

Here is the official translation of the résumé of the decision: “The CCIP-CA had to rule on an appeal on the jurisdiction of an action for damages brought by a French company against a German certifying company (and its German insurer), based on an alleged tort from the latter producing certificates of conformity in the context of a contract with the manufacturer of the boxes necessary for the operation of photovoltaic panels.

The Court upheld the decision of the Court of first instance which ruled for the international jurisdiction of the French courts under Article 7 § 2 of the Brussels I Regulation (Recast) , which allows a person domiciled in a Member State to be sued “in matters relating to tort, delict or quasi-delict, in the courts of the place where the harmful event occurred or may occur “, and ruled out the question for a preliminary ruling by the CJEU.

The Court found, relying on the case law of the CJEU (§ 43 to 53) that the boxes of the photovoltaic panels had been installed on proprieties located in France and that the repair work resulting from the defect noticed had also been done on these facilities located in France. It considered that the installer company and its subrogated insurer were therefore “direct victims due to the normal use of panels” and that the place of occurrence of the initial damage was located in France (§ 55 to 60). However, considering that Article 7 point 2 of the Brussels I Regulation (recast) was intended to directly designate the competent court without referring to the internal rules of the Member States, which are therefore not practical, the Court held that each judicial court in the jurisdiction in which the contentious facility was located must have authority to hear this action (§ 61 et seq.)”.

The decision is not yet available. However, it is likely it will be in a few days (check the following link).

Source: https://www.cours-appel.justice.fr/paris/25052021-ccip-ca-rg-2012522-competence-juridictionnelle-internationale-international

On Monday 24 May 2021, Niger acceded to the Hague Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption, which will enter into force for this country on 1 September 2021.

Source: https://www.hcch.net/en/news-archive/details/?varevent=801

Trappit SA & Ors v American Express Europe LLC & Anor [2021] EWHC 1344 (Ch) confirms an application to strike out or stay proceedings claiming infringement of intellectual property rights in a computer programme called ARPO (relevant to fare re-booking), and breach of non-contractual obligations of confidence that are said to have arisen when ARPO was made available by claimants (Panamanian and Spanish special purpose vehicles of 2 software engineers) to first Defendant AmEx (a Delaware corporation with a registered branch in England), for assessment. AmEx after inspection declined to take a licence. AmEx reorganised and second defendant GBT UK (a joint AmEx and private equity venture) acquired AmEx Europe’s travel management services business in the UK. GBT use an alternative software which claimants argue is effectively an ARPO rip-off facilitated by AmEx’ consultation of ARPO.

The application is made by the Defendants, who argue Claimants are contractually bound to litigate the claims in Spain rather than England (an A25 Brussels Ia argument), or that in light of proceedings that have already been brought and provisionally determined against the Second Claimant in Spain, the E&W  should decline jurisdiction (A29 BIa) or strike out the English proceedings as an abuse of process.

First on the issue of choice of court and privity under A25 BIa. Relevant authority discussed includes CJEU CDC and UKSC AMT Futures v Marzillier. At 6 ff the genesis of choice of court and law provisions in the NDA is mapped (drafts had been sent to and fro). As Snowden J notes at 76,

it is the parties related to Trappit SA who are the claimants, who sought the NDA before making ARPO available to AmEx Europe, and who asked for a Spanish law and jurisdiction clause. However, it is those parties who now contend that the jurisdiction clause does not bind them and that they are free to issue proceedings in England for breach of confidence and copyright infringement arising (so they say) from the unauthorised copying of the source code to ARPO. In contrast, it was the parties related to AmEx Europe who would most naturally be the defendants to any claim under the NDA and who originally proposed an English law and jurisdiction clause. But it is those parties who are now contending that the jurisdiction clause in the NDA binds all parties and requires all of the claims made in the English Proceedings to be litigated in Spain.

The eventual clause reads “18. Governing law and jurisdiction. This Agreement (including any non-contractual obligations arising out of or in connection with the same) shall be governed in all respects by the laws of Spain without regard to conflict of law principles. Any dispute or controversy arising in connection with this Agreement shall be submitted before the courts of the city of Madrid, Spain.”

At 77 the judge notes that the scope and the circumstances in which persons other than Trappit SA and AmEx Europe might become a party to the NDA are matters to be determined in accordance with Spanish law as the governing law of the NDA. This underestimates the impact of A25 itself and discussion of in particular CJEU Refcomp rather than the tort /contract discussion in CDC would have been appropriate. Snowden J relies on expert reports on Spanish law with respect to (i) the proper approach to contractual construction, and (ii) the circumstances in which third parties can be bound by contracts.

Conclusion on these report is that a narrow construction of the clause must be rejected: [94] ‘all types of claims arising from misuse of the information which the NDA envisaged would be provided by one party to the other. This would include claims based upon unauthorised copying and infringement of intellectual property rights as well as claims for breach of confidence,..’ (At 97-98 a side-argument based on A8 Rome II is dismissed).

As for the privity element, Snowden J finds there was no contractual intention for other corporate entities also to be parties entitled to enforce the agreement and there was no indication that any other company was intended to acquire rights (or be bound) under the NDA. Spanish (statutory) law on assignment, subrogation and the like does not alter this.

Conclusion [138]: ‘the jurisdiction clause in the NDA applied to all the claims in the English Proceedings, but that it only binds AmEx Europe and Trappit SA as the original signatories to the NDA. The effect of Article 25 is that the English courts therefore have no jurisdiction over the claims brought by Trappit SA against AmEx Europe in the English Proceedings.’ Proceedings against GBT on that basis may continue on a A4 BIa basis (neither of the UK Defendants were named defendants to the Spanish Proceedings, hence an A29 ff lis alibi pendens argument against them has no object).

Obiter viz AmEx Europe yet of relevance to the UK defendants, on Article 29 lis pendens, of note is first of all that the Spanish proceedings are criminal ones, with an embedded civil liability claim. The English Proceedings were issued prior to the provisional dismissal of the Spanish Proceedings but after the delivery of the Expert Report in those proceedings whose findings were part incorporated into the Spanish judge’s provisional dismissal.

The first, threshold issue on A29 is whether the Spanish courts are still seised of the Spanish Proceedings seeing as there is a provisional dismissal in the Spanish criminal proceedings. Authority discussed was Easygroup v Easy Rent a Car [2019] EWCA Civ 477 and Hutchinson v Mapfre was also referred to. A29 only applies where there are concurrent proceedings before the courts of different member states at the time when the court second seised makes its determination [147]. Following the reasoning in Hutchinson, the judge decides  that the Spanish courts are no longer seized of the case: experts are agreed that the case has been closed and archived, and that it is unlikely in the extreme that any new evidence would come to light so as to justify reopening the case after more than five years of extensive investigatory proceedings in Spain [158].

A final set of arguments by the defendants, based on issue estoppel (the Expert Report had found that there had been no plagiarism or copying of the ARPO source code by the Defendants), Henderson v Henderson abuse, and vexatious ligation (all under an ‘abuse of process‘ heading) is dismissed.

Conclusion [195]: no jurisdiction to entertain any of the claims made in the English proceedings between Trappit SA and AmEx Europe by reason of the application of A25 BIa. The case against the UK defendants may continue.

Geert.

EU Private International Law, 3rd ed. 2021, 2.296 ff (2.355 ff), 2.532 ff.

 

Trappit ea v Am Express Europe ea [2021] EWHC 1344 (Ch) (19 May 2021)
Scope of A25 Brussels Ia choice of court viz NDA and 3rd parties (interpretation of Spanish law, lex causae)
Lis pendens A29 BIa; abuse of process, vexatious litigation, Henderson abusehttps://t.co/ntzA2np2td

— Geert Van Calster (@GAVClaw) May 20, 2021

Ilya Kokorin (PhD Researcher at Leiden University) and Bob Wessels (Professor Emeritus of International Insolvency Law at Leiden University and Expert Advisor on Insolvency and Restructuring Law of the European Commission) have authored together a book on Cross-Border Protocols in Insolvencies of Multinational Enterprise Groups. This much awaited analysis has just been published with Edward Elgar Publishing in the Elgar Corporate and Insolvency Law and Practice series.

The blurb of the book reads as follows:

Cross-border insolvency protocols play a critical role in facilitating the efficient resolution of complex international corporate insolvencies. This book constitutes the first in-depth study of the use of insolvency protocols, enriching existing knowledge about them and serving as a comprehensive introduction to their application in the context of multinational enterprise group insolvency. It traces the rise of insolvency protocols and discusses their legal basis, contents, effects, major characteristics and limitations.

Key features of the work regard:

• the proposition of a Group Insolvency Protocol (GIP) design;
• a comprehensive study of around 50 insolvency protocols from 1992 to 2020;
• the analysis of major international insolvency law instruments, modern trends and developments in the area of insolvency of enterprise groups;
• practical recommendations for drafting an insolvency protocol, addressing problems related to their adoption and offering suggestions for the improvement of group coordination
• the  exploration of the nature of insolvency protocols and pertinent issues including the preservation and realization of material assets, resolution of intercompany claims, information exchange, conflicts of interest, participation rights and group governance in insolvency.

The book structured in 13 chapters aims to be become an indispensable resource for insolvency practitioners, lawyers, judges and policy makers, whilst also being of value to scholars and students concerned with insolvency law and corporate governance.

Written by Professor Yeo Tiong Min, SC (honoris causa), Yong Pung How Chair Professor of Law, Yong Pung How School of Law, Singapore Management University

In Merck Sharp & Dohme Corp v Merck KGaA [2021] SGCA 14, a full bench of the Singapore Court of Appeal addressed the limits of transnational issue estoppel in Singapore law, and flagged possible fundamental changes to the common law on the recognition and enforcement of foreign judgments in Singapore. The litigation involves multiple parties spread over different jurisdictions. The specific facts involved in the appeal are fairly straightforward, centring on what has been decided in a judgment from the English court, and whether it could be used to raise issue estoppel on the interpretation of a particular term of the contract between the parties. The Court of Appeal affirmed the decision of the High Court that it could. What makes the case interesting are the wide-ranging observations on the operation of issue estoppel from foreign judgments, and more fundamentally on the basis of the recognition and enforcement of foreign judgments in the common law of Singapore.

The Court of Appeal affirmed the case law in Singapore that so far have ruled that a foreign judgment is capable of raising issue estoppel in Singapore proceedings. It upheld the uncontroversial requirements that the judgment must first be recognised under the private international law of Singapore, and that there must be identity of issues and parties. It is the first Singapore case, however, to discuss and affirm the need for the foreign judgment to be final and conclusive (under the law of the originating state) not just on the merits, but also on the issue forming the basis of the issue estoppel. The Court also highlighted the caution that needs to be exercised when determining what has actually been conclusively decided under a foreign legal system, especially where the foreign courts operate under different procedural rules.

The Court discussed the outer limits of transnational issue estoppel without reaching a conclusion because they were not in issue on the facts of the case. It accepted that issue estoppel raises a question of lex fori procedure, and that as a starting point, the same principles of issue estoppel apply whether the previous judgment is a local or foreign one. It made a number of important observations on the limitations of transnational issue estoppel. First, it affirmed that issue estoppel from a foreign judgment would not be applicable if: (a) there is a mandatory law of the forum that applies irrespective of the foreign elements of the case and irrespective of any applicable choice of law rules; (b) the issue in question engages the public policy of the forum; or (c) where the issue that is the subject of the estoppel is procedural for the purpose of the conflict of laws. Second, it noted that that transnational issue estoppel should be applied with due consideration of whether the foreign decision is territorially limited in its application. Third, the Court highlighted the possibility that it may not apply issue estoppel to a defendant in circumstances where the defendant did not, and was not reasonably expected to, argue the point, or argue the point fully, in answer to the claim brought against it in the foreign jurisdiction.

Fourth, issue estoppel effect may be denied to a foreign judgment if it conflicts with the public policy of the forum. This last point is generally uncontroversial. However, what is notable in the judgment is that the Court left open the question whether an error made by the foreign court regarding the content or application of Singapore law would provide a defence based on public policy, or as a standalone limitation. As a standalone limitation, it would be inconsistent with the conclusiveness principle in Godard v Gray (1870) LR 6 QB 139, as well as the Hague Convention on Choice of Court Agreements. Thus, it may be that foreign judgments could be reviewed on the merits at least in respect of some types of errors of Singapore law, at least under the common law. Further clarification will be needed on this issue from the Court of Appeal in the future.

Fifth,  the Court discussed the exception to issue estoppel. A distinctive feature of Singapore law on issue estoppel is the rejection of the broadly worded “special circumstances” exception to issue in English common law (Arnold v National Westminster Bank plc [1991] 2 AC 93). Singapore law (The Royal Bank of Scotland NV v TT International Ltd [2015] 5 SLR 1104) has instead a narrow exception based on the satisfaction following cumulative requirements:

(a) the decision said to give rise to issue estoppel must directly affect the future determination of the rights of the litigants;

(b) the decision must be shown to be clearly wrong;

(c) the error in the decision must be shown to have stemmed from the fact that some point of fact or law relevant to the decision was not taken or argued before the court which made that decision and could not reasonably have been taken or argued on that occasion;

(d) there can be no attempt to claw back rights that have accrued pursuant to the erroneous decision or to otherwise undo the effects of that decision; and

(e) it must be shown that great injustice would result if the litigant in question were estopped from putting forward the particular point which is said to be the subject of issue estoppel – in this regard, if the litigant failed to take advantage of an avenue of appeal that was available to him, it will usually not be possible for him to show that the requisite injustice nevertheless exists.

The Court noted the difficulty in applying requirement (b) to a foreign judgment because the principle of conclusiveness (Godard v Gray (1870) LR 6 QB 139) prohibits re-opening the merits of the foreign decision (note that this is potentially challenged above but only in respect of Singapore law matters). It considered four possible approaches to this issue: (1) leave things as they are, with the consequence that foreign judgments may have stronger issue estoppel effect than local judgments; (2) do not apply the conclusiveness principle to issue estoppel; (3) apply the broader “special circumstances” exception to foreign judgments rather than the narrow approach in domestic law; or (4) apply the law of the originating state to the issue whether an exception can be made to issue estoppel. The Court was troubled by all four suggested solutions, and it left the question, to be considered further in a future case which raises the issue squarely.

The Court also endorsed the principle that issue estoppel from a foreign judgment will be defeated by an inconsistent prior foreign judgment or by an inconsistent prior or subsequent local judgment. However, it left open the question whether a foreign judgment obtained after the commencement of local proceedings can be used to raise issue estoppel in the local proceedings. In response to a submission that the foreign judgment should nevertheless be recognised unless there was an abuse of process in the way it was obtained, the Court thought that it was equally plausible to take the view that the commencement of local proceedings could be a defence unless the commencement of local proceedings amounted to an abuse of process.

The most interesting aspects of the decision, with possible far-reaching implications, are two-fold. First, the Court of Appeal cast serious doubt on the obligation theory of the common law and preferred to rest the basis of the recognition and enforcement of foreign judgments on “considerations of transnational comity and reciprocal respect among courts of independent jurisdictions”. Second, it left open the question whether reciprocity should be a precondition to the recognition of foreign judgments at common law. A precondition of reciprocity was said to be entirely consistent with the rationale of transnational comity, and with the position under the statutory registration regimes as well as the Hague Convention on Choice of Court Agreements. These two aspects of the decision are discussed in the public lecture, “The Changing Global Landscape for Foreign Judgments”, Yong Pung How Professorship of Law Lecture, Yong Pung How School of Law, Singapore Management University, 6 May 2021 (available here).

by Xandra Kramer (Erasmus University Rotterdam/Utrecht Univeristy) and Ekaterina Pannebakker (Leiden University)

1. Introduction

As was briefly announced earlier on this blog, on 29 January 2021, the Dutch Court of Appeal in The Hague ruled in a long-standing litigation launched by four Nigerian farmers and the Dutch Milieudefensie. The Hague Court held Shell Nigeria liable for pollution caused by oil spills that took place in 2004-2007; the UK-Dutch parent company is ordered to install equipment to prevent damage in the future. Though rendered almost four months ago, the case merits discussion of several private international law aspects of the ruling that will perhaps become a milestone in the broader context of liability of parent companies for the actions of their foreign-based subsidiaries. Climate change and related human rights litigation is of increasing importance in private international law. This is also on the radar of the European institutions as is clear from the ongoing review of the Rome II Regulation (point 6). Today, 26 May 2021, another milestone was reached, both for for private international law but for the fight against global climate change, with the historical judgment (English version, Dutch version) by the Hague District Court ordering Shell to reduce Co2 emissions (point 7). This latter case is discussed more at length in today’s blogpost by Matthias Weller.

2. Oil spill in Nigeria and litigation in The Hague courts

As is well-known Shell as well as other multinationals have been extracting oil in Nigeria since a number of decades. Leaking oil pipes have been causing environmental damage in the Niger Delta, and consequently causing damage to health damage and social-economic damage to the local population and farmers. Litigation has been going on in the Netherlands and the United Kingdom for years (see Geert van Calster blog for comments on a recent ruling by the English Supreme Court). At stake in the present case are several oil spills that occurred between 2004-2007 at the underground pipelines and an oil well near the villages Oruma, Goi and Ikot Ada Udo. The spilled oil pollutes agricultural land and water used by the farmers for a living.

Shortly after the oil spills, four Nigerian farmers instituted proceedings in the Netherlands, at the District Court of The Hague. The farmers are supported by the Dutch organization Milieudefensie, which is also a claimant in the procedure. The claimants submit that the land and water, which the Nigerian farmers explored for living, became infertile. They claim compensation for the damage caused by the Shell’s wrongful acts and negligence while extracting oil and maintaining the pipelines and the well. Furthermore, they claim to order Shell to secure better cleaning of the polluted land and to take appropriate measures to prevent oil leaks in the future.

 

The farmers summon both the Shell’s Nigerian subsidiary and the parent company at the Dutch court. To be precise, they institute proceedings against the Shell’s Nigerian subsidiary – Shell Petroleum Development Company of Nigeria Ltd and against the British-Dutch Shell parent companies – Royal Dutch Shell Plc (UK), with office in The Hague; Shell Petroleum N.V. (a Dutch company) and the ‘Shell’ Transport and Trading Company Ltd (a British company). It is this corporate structure that brings the Nigerian farmers to the court in The Hague and paves the way for the jurisdiction of Dutch courts.

3. Jurisdiction of Dutch courts: anchor defendant in the Netherlands and sufficient connection

 Both the first instance court (in 2009) and the court of appeal at The Hague (in appeal in 2015) hold that the Dutch courts have jurisdiction. The 2015 ruling is available in English and contains a detailed motivation of the grounds of jurisdiction of the Dutch courts. See in particular at [3.3] – [3.9].

Claim against Shell parent company/companies. Dutch courts have jurisdiction to hear the claim against Shell Petroleum based on art. 2(1) Brussels I Regulation, as the company has its registered office in the Netherlands. Furthermore, the jurisdiction of Dutch courts to hear the claims against Royal Dutch Shell is based on art. 2(1) in conjunction with art. 60(1) Brussels I Regulation and the jurisdiction over claims to Shell Transport and Trading Company – on art. 6(1) and art. 24 Brussels I Regulation.

Claim against Shell’s Nigerian subsidiary. The jurisdiction of the Dutch courts to hear the claim against Shell’s Nigerian subsidiary is based on art. 2(1) in conjunction with art. 60(1) Brussels I Regulation and on art. 7(1) of the Dutch Code of civil procedure (DCCP). Art. 7(1) deals with multiple defendants. By virtue of art. 7(1) DCCP, if the Dutch court with jurisdiction to hear the claim against one defendant (in this case this is the Royal Dutch Shell), has also the jurisdiction to hear the claims against co-defendant(s), ‘provided the claims against the various defendants are connected to the extent that reasons of efficiency justify a joint hearing’. The jurisdiction on the claim against the so-called ‘anchor defendant’ (for instance, the parent company) can thus carry with itself the jurisdiction on the other, connected, claims against other defendants.

Both the first instance court and the court in appeal found that the claims were sufficiently connected, despite the contentions of Shell. The Shell’s contentions were twofold. First, Shell stated that the claimants abused procedural law, because the claims against Royal Dutch Shall were ‘obviously bound to fail and for that reason could not serve as a basis for jurisdiction as provided in art. 7(1) DCCP’ (at [3.1] in the 2015 ruling). According to Shell, the claim was bound to fail, because the oil leaks were caused by sabotage, in which case Shell would be exempt from liability under the applicable Nigerian law. This contention was dismissed: the claim was not necessarily bound to fail, according to the first instance court. The appellate court added that it was too early to assume that the oil spill was caused by sabotage. Second, Shell contested the jurisdiction of the Dutch courts because the parent companies could not reasonably foresee that they would be summoned in the Netherlands for the claims as the ones in the case. Dismissing this contention the court of appeal at The Hague stated in the 2015 ruling that ‘in the light of (i) the ongoing developments in the field of foreign direct liability claims (cf. the cases instituted in the USA against Shell for the alleged involvement of the company in human rights violations; Bowoto v. Chevron Texaco (09-15641); Kiobel v Royal Dutch Petroleum Co., 133 S. Ct. 1659 (2013), as well as Lubbe v. Cape Plc. [2000] UKHL 41), added to (ii) the many oil spills that occurred annually during the extraction of oil in Nigeria, (iii) the legal actions that have been conducted for many years about this (for over 60 years according to Shell), (iv) the problems these oil spills present to humans and the environment and (v) the increased attention for such problems, it must have been reasonably foreseeable’ for the parent companies taken to court with jurisdiction with regard to Royal Dutch Shell (see the 2015 ruling at [3.6].

4. Application of (substantive) Nigerian law

Substantive law. All claims addressed in the ruling of 29 January 2021 are assessed according to Nigerian law. This is the law of the state where the spill occurred, the ensuing damage occurred and where the Shell’s Nigerian subsidiary (managed and monitored by Shell) has its registered office. The events that are the subject of litigation occurred in 2004-2007 and fall outside the temporal scope of Rome II. Applicable law is defined based on the Dutch conflict of laws rules on torts, namely art. 3(1) and (2) Wet Conflictenrecht Onrechtmatige Daad (see the first instance ruling at [4.10]).

 

Procedural matters. Perhaps because the case of damage to environment as the one in the discussed case, the application of substantive law is strictly tied to the evidence, the court goes on to specify private international law with further finesse. It mentions explicitly that procedural matters are regulated by the Dutch code of civil procedure. In the meantime, the substantive law aspects of the procedure, including the question which sanctions can be imposed, are governed by the lex causae (Nigerian law). The same holds true for substantive law of evidence, including the specific rules on the burden of proof relating to a particular legal relationship. The other, general matters relating to the burden of proof and evidence are regulated by the lex fori, thus the Dutch law of civil procedure (at [3.1]).

5. The ruling of The Hague Court of Appeal

 In its the ruling of 29 January 2021, the Dutch court holds Shell Nigeria liable for damage resulting from the leaks of pipelines in Oruma and Goi. Nigerian law provides for a high threshold of burden of proof that rests on the one who invokes sabotage of the pipelines (in this case, Shell). The fact of sabotage must be (evidenced to be) beyond reasonable doubt. Shell could not provide for such evidence for the pipelines in Oruma and Goi. Furthermore, Shell has not undertaken sufficient steps for the cleaning and limiting environmental damage. Shell Nigeria is therefore liable for the damage caused by the leaks in the pipelines. The amount of the damage to be compensated is still to be decided. The relevant procedure will follow up. The ruling is, however, not limited to this. Shell is also ordered to build at one of the pipelines (the Oruma-pipeline) a Leak Detection System (LDS), so that the future possible leaks could be swiftly noticed and future damage to the environment can be limited. This order is made to Shell Nigeria and to the parent companies.

Spills at Oruma and Goi are are two out of three oil spills. The procedure on the third claim – the procedure regarding the well at Ikot Ada Udo will continue: the reason for the oil spill is not yet clear and the next hearing is scheduled.

6. Human rights litigation and Rome II

This ruling is one in a series of cases where human rights and corporate responsibility are central. Increasingly, it seems, victims of environmental damage and foundations fighting for environmental protection can celebrate victories. In the introduction we mentioned the English Supreme Court ruling in Okpaby v Shell [2021] UKSC 3 of February 2021. In this case the Supreme Court reversed judgments by the Court of Appeal and the High Court in which the claim by Nigerian farmers brought against Shell’s parent company and its subsidiary in Nigeria had been struck out (see also Geert van Calster’s blog, guest post by Robert McCorquodale). Also there is a growing body of doctrinal work on human right violations in other countries, corporate social responsibility, due diligence and the intricacies of private international law, as a quick search on the present blog also indicates. From a European private international law perspective, as also the discussion above shows, the Brussels Ibis Regulation and the Rome II Regulation are key. The latter Regulation has been subject of an evaluation study commissioned by the European Commission over the past year, and the final report is expected in the next months. Apart from evaluating ten years of operation of this Regulation, one of the focal points is the question of cross-border corporate violations of human rights. The question is whether the present rules provide an adequate framework for assessing the applicable law in these cases. As discussed in point 5 above, in the Dutch Shell case the court concluded that Nigerian law applied, which may not necessarily be in the best interest of environmental protection. This was based on Dutch conflict rules applicable before the Rome II Regulation became applicable, but Art. 4 Rome II would in essence lead to the same result. For environmental protection, however, Art. 7 Rome II may come to the rescue as it enables victims to make a choice for the law of the country in which the event giving rise to damage occurred instead of having the law of the country in which the damage occurs of Art. 4 applied. In a similar vein, the European Parliament in its draft report with recommendations to the Commission on corporate due diligence and corporate accountability, dated 11 September 2020, proposes to incorporate a general ubiquity rule in art. 6a, enabling a choice of law for victims of business-related human rights violations. In such cases a choice could be made for the law of the country in which the event giving rise to the damage occurred, or the law of the country in which the parent company has its domicile, or, where it does not have a domicile in a Member State, the law of the country where it operates. This draft report, which also addresses the jurisdiction rules under the Brussels Ibis Regulation was briefly discussed on this blog in an earlier blogpost by Jan von Hein.

 

7. Shell and climate continued: The Hague court strikes again

Today, all eyes were on the next move of The Hague District Court in an environmental claim brought against Shell. It concerns a collective action under the (revised) Dutch collective action act (see earlier on this blog by Hoevenaars & Kramer, and extensively Tzankova & Kramer 2021) was brought by Milieudefensie, also on behalf of 17,379 individual claimants and six other foundations (among others Greenpeace). The claim boils down to requesting the court to order Shell to reduce emissions. First, the court extensively deals with the admissibility and representativeness of the claimants as part of the new collective action act. Second, the court assesses the international environmental law, regulation and policy framework, including the UN Climate Convention, the IPCC, UNEP, the Paris Agreement as well as European law and policy and Dutch law and policy.

 

Third, and perhaps most interesting for the readers of this blog, the court assesses the applicable law, as the claim concerns the global activities of Shell. As Weller has highlighted in his blogpost that discussion mostly evolves around Art. 7 Rome II. Milieudefensie pleaded that Art 7 should, pursuant to its choice, lead to the applicability of Dutch law and should this provision not lead to Dutch aw on the basis of Art. 4(1) Rome II. In establishing the place where the event giving rise to the damage occurs states that ‘An important characteristic of the environmental damage and imminent environmental damage in the Netherlands and the Wadden region, as raised in this case, is that every emission of CO2 and other greenhouse gases, anywhere in the world and caused in whatever manner, contributes to this damage and its increase.’ Milieudefensie hold RDS liable in its capacity as policy-setting entity of the Shell group. RDS pleads for a pleads for a restrictive  interpretation and argues that corporate policy is a preparatory act that falls outside the scope of Art. 7 as ‘the mere adoption of a policy does not cause damage’. However, The Hague Court finds this approach too narrow and agrees with the claimants that Dutch law applies on the basis of Art. 7 and that, in so far as the action seeks to protect the interests of Dutch residents, this also leads to the applicability of Dutch law on the basis of Art. 4.

The judgment of the court, and that’s what has been all over the Dutch and international media, is that it orders ‘RDS, both directly and via the companies and legal entities it commonly includes in its consolidated annual accounts and with which it jointly forms the Shell group, to limit or cause to be limited the aggregate annual volume of all CO2 emissions into the atmosphere (Scope 1, 2 and 3) due to the business operations and sold energy-carrying products of the Shell group to such an extent that this volume will have reduced by at least net 45% at end 2030, relative to 2019 levels’.

Undoubtedly, to be continued.

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

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

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

4.3.

Applicable law

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

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

4.3.3.

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

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

4.3.4.

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

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

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

4.3.6.

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

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

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

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

 

 

Aldricus – Momen 17 Agustus saat wabah pasti pas jika kita masih tetap di dalam rumah dan mainkan games di handphone. Berikut kami akan memberinya referensi 7 games Android bikinan Indonesia yang dapat kalian permainkan.

Jejeran games berikut ini memiliki beberapa topik menarik hingga cukup cocok dimainkan bersamaan dengan Hari Kemerdekaan. Mainkan games lokal pasti bisa menolong mengembangnya industri games di Tanah Air.

Beberapa games ini tawarkan berbagai macam topik seperti pahlawan atau hero, jajan lokal, sampai cerita romantis untuk beberapa remaja. Berikut 6 game Android bikinan Indonesia yang bisa kalian permainkan pada Hari Kemerdekaan Indonesia:

1. Diponegoro – Tower Defense

Game Diponegoro – Tower Defense mengusung topik pahlawan nasional Indonesia, Pangeran Diponegoro. Walau gameplay-nya simpel, Diponegoro – Tower Defense ini asyik dimainkan karena tawarkan diagram yang menarik.

Kamu akan bertindak selaku Pangeran Diponegoro yang dapat membuat beberapa menara seperti Menara Tonggak Bambu, Panah Api, Balista, dan ada banyak menara yang lain. Lumayan menarik, games bikinan Indonesia ini menyuguhkan peta yang memvisualisasikan tanah Jawa di mana kamu harus berusaha melawan kolonialisme.

2. Lokapala

Sesudah versus stabilnya di-launching pada 20 Mei 2020, Lokapala jadi games MOBA pertama bikinan Indonesia. Walau diketemukan beberapa bug saat launching pertama kalinya, tetapi si developer Anantarupa Studios, rajin memberinya up-date untuk melakukan perbaikan. Selama ini, Lokapala sudah didownload lebih satu juta kali di Play Toko.

Games cukup menunjukkan beberapa unsur riwayat dan kebudayaan asal dari Indonesia. Bahkan juga beberapa watak hero diadaptasi dari beberapa “pejabat” kerajaan Majapahit. Ada hero atau Ksatriya namanya Nala (Fighter) yang berperanan sebagai Laksamana Angkatan Laut dari Majapahit, yang menolong Jinno (Tanker) sebagai mahapatih, dan Vijaya, si pangeran dari Kerajaan Majapahit. Walau beberapa lain tidak terlampau kental tampilkan hero atau Ksatriya asal dari Indonesia, games ini menjadi alternative untuk fans MOBA.

3. Juragan Wayang : Funny Heroes

Tidak terus-terusan narasi yang kaku, games Juragan Wayang sebagai gabungan dari komedi pedas dan tanding antara hero. Topik yang diangkat cukup konyol di mana pemain bisa mendapati beberapa puluh watak sampai kartu sichir dengan dampak unik.

Kamu harus tingkatkan pahlawan punyamu jadi pahlawan kuat setiap tingkat yang lain. Games ini ibarat games Tower Defense tetapi cuman memakai hero dan tidak mempunyai tower. Bagus sekali, kamu bahkan juga dapat mempunyai hero dengan senjata berbentuk wajan sampai senjata hebat seperti punya Gundam.

4. Tahu Bulat

Tahu Bundar terhitung salah satunya games lokal berjenis replikasi dalam jumlah unduhan tinggi sekali yakni lebih dari 10 juta kali. Kalian akan disuruh untuk jalankan visi sebagai pelaku bisnis yang jual tahu bundar.

Pemain bisa juga menukar mobil dan lakukan penyesuaian untuk menarik konsumen. Developer asal Bandung, Own Game, ternyata sukses memadukan rekam jejak kesedapan tahu bundar dengan gameplay menarik dan simpel dalam basis bermainnya.

5. Bambu Runcing

Games Bambu Lancip sebagai games simpel yang tawarkan narasi saat bangsa Indonesia menantang penjajah. Sama dengan namanya, games ini mendatangkan bambu lancip sebagai senjata khusus menantang watak antagonis berbentuk penjajah.

Games sejenis pembelajaran bikinan Playground SMK Telkom Malang sediakan senjata berbentuk keris yang bisa dilempar dan bambu lancip yang bisa ditusukkan. Bagus sekali, tiap chapter diberi komik yang bercerita perjuangan menantang penjajah di sejumlah daerah Indonesia.

6. Tak Gentar

Game ini tawarkan pemain untuk menjaga Indonesia menghindar gempuran dari bangsa asing. Tidak Gentar mendatangkan beberapa perang terkenal yang sempat terjadi di Indonesia seperti Gempuran Umum Satu Maret, Gempuran 10 November, Pertarungan Bandung Lautan Api dan yang lain.

The post 6 Game Android Buatan Indonesia, Cocok Dimainkan Pas Hari Kemerdekaan! appeared first on Aldri Blog.

The second issue of the Journal du droit international for 2021 has just been released. It contains two articles and several case notes relating to private international law issues.

In the first article, Mathieu Guerriaud and Clotilde Jourdain-Fortier (University of Burgundy Franche-Comté, CREDIMI) discuss, from a political perspective, the legal regime of the international contracts for the procurement of Covid-19 vaccines concluded by the European Union (“L’accès au vaccin contre la Covid-19 : le contrat international peut-il suffire ?“). 

The English abstract reads:

The European Union has opted for centralized negotiation to ensure the supply of Covid-19 vaccines to its Member States. To this end, several international contracts have been concluded by the European Commission with pharmaceutical companies. In principle, those contracts are covered by confidentiality, but three of them were published following a dispute over the interpretation of the obligations of one of those companies. Analysis of those contracts indicates that they are advance purchase agreement, which may fall under the Vienna Convention on the International Sale of Goods, and raise issues of interpretation as to the nature of the obligation to manufacture and deliver the vaccine doses. Is it an obligation of result, as the Commission seems to assert, or an obligation of means on the part of laboratories ? The “best reasonable efforts” clauses are particularly difficult to interpret here, especially as part of contracts characterized by an obligation of cooperation between the parties and in a European context of pharmaceutical deindustrialization. In the face of supply difficulties in the execution of those contracts, contractualization shows its limits and some believe that a more radical solution could be envisaged, that of infringing the industrial property rights of the laboratory. To this end, several weapons available to the public authorities are examined here. Some of them, like the ex officio license or the compulsory license, are moderately prejudicial to the rights of the patentee, while others are much bolder and more damaging for the manufacturer, like the expropriation of the patent, the requisition or even the nationalization. In all cases, the question of sovereignty and the pharmaceutical industrial apparatus arises, and it is on this point that decision-makers will have to work for the next decades to come, because medicines, and vaccines in particular, have become diplomatic weapons.

In the second article, Mauricio Almeida Prado (Arbitrator, PhD, University of Paris X) addresses the important issue of incorrect awards in international commercial arbitration (“Réflexions sur les sentences incorrectes au fond dans l’arbitrage commercial international“). 

The English abstract reads:

Awards that incorrectly decide the merits of a dispute are regrettable events in the practice of international commercial arbitration.

As a voluntary mechanism, trust in its ability to promote legal certainty and provide technically correct decisions is at the heart of its choice as a method of dispute resolution. Consequently, the recurrence of incorrect awards as to the merits has negative effects on the arbitral system because it threatens its credibility.

The article is based on three main ideas. First : it is important to define what is meant by an incorrect sentence as to its merits and, above all, not to confound it with divergent sentences, but technically correct. Second, it addresses the most common reasons that lead to errors in arbitral awards. Third : few proposals are presented to improve the organization of evidence production and the quality of the decision-making process by the arbitral tribunals.

A full table of contents can be downloaded here.

Tobias Lutzi (University of Cologne) and Ennio Piovesani (University of Turin) have taken over the responsibility of chairing the EAPIL Young Research Network from Tamás Szabados (ELTE Eötvös Loránd University). They are joining Martina Melcher (University of Graz), who founded the Network in 2019 together with Susanne Gössl (University of Kiel).

The Young Research Network aims to facilitate academic exchange between junior faculty members working on questions of private international law across Europe and to further comparative research through international cooperation. It became part of the EAPIL in 2020 as an official ‘activity’ of the Association.

Since its creation, the Network has successfully completed two research projects, further information on which can be found here.

Together with Dora Zgrabljić Rotar (University of Zaghreb), Tobias and Ennio are currently working on a third research project, that is going to focus on the national rules on jurisdiction in civil and commercial matters over non-EU defendants, in light of the report envisioned in Article 79 Brussels I bis Regulation.

The Young Research Network can be contacted via e-mail at youngresearch@eapil.org.

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

This journal may be accessed by clicking here.

The details of the webinar are:

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

Meeting ID: 894 4816 7313

Password: BMAAMEDIP

Participation is free of charge.

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