Agrégateur de flux

Tribunal judiciaire de Val de Briey, 19 janvier 2021

Pourvoi c/ déc. Chambre de l'instruction de la Cour d'appel de Paris, 21 décembre 2020

Pourvoi c/ déc. Cour d'appel d'Aix en Provence du 25 septembre 2019

The post below was provided by Catherine Shen, Project Manager at the Asian Business Law Institute.

Readers of the EAPIL blog are well aware that in Europe, harmonisation in the field of private international law has been enormously successful with efforts encompassing both the civil and commercial, as well as family, spheres. In relation to foreign judgments in civil and commercial matters, the Brussels I bis Regulation is a double convention comprising of rules on both jurisdiction and foreign judgments. Apart from harmonising the rules under which a court in one European Union (“EU”) Member State would assume jurisdiction, it enables the free circulation of judgments from one EU Member State within the EU.

In Asia, however, harmonisation efforts in this field have been relatively lacking. That was until recently. The Asian Business Law Institute (“ABLI”), set up in 2016 with the aim of promoting the convergence of business laws in Asia, identified among its first batch of projects an undertaking to advance the convergence of foreign judgments recognition and enforcement rules in Asia (“Foreign Judgments Project”).

ABLI released its first publication, Recognition and Enforcement of Foreign Judgments in Asia (“Judgments Compendium”) in the beginning of 2018. This compendium contains 15 short and concise country reports which provide lawyers and businesses with an overview of how foreign judgments in civil and commercial matters are recognised in different jurisdictions in Asia and the requirements which would need to be met for a foreign judgment to be enforced in those jurisdictions. The jurisdictions studied are all ten member states of the Association of Southeast Asian Nations or ASEAN (i.e., Brunei, Cambodia, Indonesia, Lao, Malaysia, Myanmar, the Philippines, Singapore, Thailand and Vietnam) and their major trading partners, including Australia, China, India, Japan and South Korea.

In fact, the Judgments Compendium marks the first time when the rules of several ASEAN member states on the recognition and enforcement of foreign judgments are made available in the English language. Its release concluded the first phase of ABLI’s Foreign Judgments Project and set the stage for the second phase where both the similarities and the differences of the rules of these 15 jurisdictions are distilled to formulate a set of common principles.

That set of principles has now been released under the title of Asian Principles for the Recognition and Enforcement of Foreign Judgments (“Asian Principles”). This ambitious piece of work is a sequel to the Judgments Compendium and includes a total of 13 principles that among other things, cover the rules on international (or “indirect”) jurisdiction, reciprocity, the enforcement of non-monetary judgments, public policy, due process and inconsistent judgments. Each principle is accompanied by a commentary which fleshes out how the various countries apply that principle and also includes a way forward section, where applicable, to suggest the desired directions of law development.

A detailed write-up on the Asian Principles and the Foreign Judgments Project in general can be found at Adeline Chong, “Moving towards harmonisation in the recognition and enforcement of foreign judgment rules in Asia” (2020) 16 Journal of Private International Law 31-68. Associate Professor Chong is the general editor of both the Judgments Compendium and the Asian Principles.

ABLI is delighted to offer all members of EAPIL and all readers of this blog an exclusive discount to purchase both the Judgments Compendium and the Asian Principles. Interested members and readers can enjoy 10% off by following the steps listed at the end of this post.

Both the Judgments Compendium and the Asian Principles are available in PDF softcopies. Three hardcopies remain in stock for the Judgments Compendium. Please contact Catherine Shen, Project Manager of ABLI, for any query at catherine_shen@abli.asia.

How to enjoy your 10% discount as an EAPIL member or EAPIL blog reader (offer ends on 1 March 2021): (1) Go to https://payhip.com/b/e0md (for Judgments Compendium) or https://payhip.com/b/hACJ (for Asian Principles); (2) Click on the purple icon “buy now”; (3) After entering your name and email address, click on “Have a coupon code? Add coupon“ (right below the data protection terms) and enter promo code “EAPIL”, and then proceed to check out; (4) Once payment is processed by PayPal, an email will be sent to your indicated address for you to download the purchased copy instantly.

Please contact Catherine Shen if you wish to pay by credit card instead of PayPal.

A webinar event on “Corporate Due Diligence and Private International Law” organized by the NOVA Centre for Business, Human Rights and the Environment, will hold on February 25, 2021 at 15:00 – 17:30 CET. For more information on the event and how to register see here

by Professor Dr Eva-Maria Kieninger, Chair for German and European Private Law and Private International Law, University of Würzburg, Germany

The Supreme Court’s decision in Okpabi v Royal Dutch Shell (2021 UKSC 3) concerns the preliminary question whether English courts have jurisdiction over a joint claim brought by two Nigerian communities against Royal Dutch Shell (RSD), a UK parent company, as anchor defendant, and a Nigerian oil company (SPDC) in which RSD held 30 % of the shares. The jurisdictional decision depended (among other issues that still need to be resolved) on a question of substantive law: Was it “reasonably arguable” that RSD owed a common law duty of care to the Nigerian inhabitants whose health and property was damaged by the operations of the subsidiary in Nigeria?

In the lower instance, the Court of Appeal had not clearly differentiated between jurisdiction over the parent company and the Nigerian sub and had treated the “arguable case”-requirement as a prerequisite both for jurisdiction over the Nigerian sub (under English autonomous law) and for jurisdiction over RSD, although clearly, under Art. 4 (1) Brussels Ia Reg., there can be no such additional requirement pursuant to the CJEU’s jurisprudence in Owusu. In Vedanta, a case with large similarities to the present one, Lord Briggs, handing down the judgment for the Supreme Court,  had unhesitatingly acknowledged the unlimited jurisdiction of the courts at the domicile of the defendant company under the Brussels Regulation. In Okpabi, Lord Hamblen, with whom the other Justices concurred, did not come back to this issue. However, given that from a UK point of view, the Brussels model will soon become practically obsolete (unless the UK will still be able to join the Lugano Convention),  this may be a pardonable omission. It is to be expected that the English courts will return to the traditional common law restrictions on jurisdiction such as the “arguable case”-criterion and “forum non conveniens”.

Although the Supreme Court’s decision relates to jurisdiction, its importance lies in the potential consequences for a parent company’s liability on the level of substantive law: The Supreme Court affirms its previous considerations in Vedanta (2019) and rejects the majority opinion of the CoA which in 2018 still flatly ruled out the possibility of RDS owing a duty of care towards the Nigerian inhabitants. Following the appellants’ submissions, Lord Hamblen minutely sets out where the approach of the CoA deviated from Vedanta and therefore “erred in law”. The majority in the CoA started from the assumption that a duty of care can only arise where the parent company effectively “controls” the material operations of the sub, and furthermore, that the issuance of group wide policies or standards could never in itself give rise to a duty of care. These propositions have now been clearly rejected by the Supreme Court as not being a reliable limiting principle (para 145). In the present judgment, the SC affirms its view that “control” is not in itself a meaningful test, since in practice, it can take many different forms: Lord Hamblen cites with approval Lord Briggs’s statement in Vedanta, that “there is no limit to the models of management and control which may  be put in place within a multinational group of companies” (para 150). He equally approves of Lord Briggs’s considerations according to which “the parent  may incur the relevant responsibility to third parties if, in published materials, it holds itself out as exercising that degree of supervision and control of its subsidiaries, even if in fact it does not do so. In such circumstances its very omission may constitute the abdication of a responsibility which it has publicly undertaken” (para 148).

Whether or not the English courts will ultimately find a duty of care to have existed in either or both of the Vedanta and Okpabi sets of facts remains to be seen when the law suits have been moved to the trial of the substantive issues. Much will depend on the degree of influence that was either really exercised on the sub or publicly pretended to be exercised.

On the same day on which the SC’s judgment was given (12 February 2021), the German Federal Government publicly announced the key features of a future piece of legislation on corporate social resonsibility in supply chains (Sorgfaltspflichtengesetz) that is soon to be enacted. The government wants to pass legislation before the summer break and the general elections in September 2021, not the least because three years ago, it promised binding legislation if voluntary self-regulation according to the National Action Plan should fail. Yet, contrary to claims from civil society (see foremost the German “Initiative Lieferkettengesetz”) the government no longer plans to sanction infringements by tortious liability towards victims. Given the applicability of the law at the place where the damage occurred under Art. 4 (1) Rome II Regulation, and the fact that the UK Supreme Court in Vedanta and Okpabi held the law of Sambia and Nigeria to be identical with that of England, this could have the surprising effect that the German act, which the government proudly announced as being the strictest and most far-reaching supply chain legislation in Europe and the world (!!), would risk to fall behind the law in anglophone Africa or on the Indian sub-continent. This example demonstrates that an addition to the Rome II Regulation, as proposed by the European Parliament, which would give victims of human rights’ violations a choice between the law at the place of injury and that at the place of action, is in fact badly needed.