Agrégateur de flux

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

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

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

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

Emergency Legislative Measures

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

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

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

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

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

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

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

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

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

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

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

Impacts on the Procedural Landscape

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

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

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

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

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

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

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

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

Some Thoughts on the Future Perspective

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

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

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

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

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

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

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

“National provisions on compensation and limitation period

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

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

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

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

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

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

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

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

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

Source: here

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

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

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

Source : here

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

en lire plus

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

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

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

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

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

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

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

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

Someone somewhere must have made partner on this litigation.

Geert.

 

 

Non lieu à renvoi

Cour d'appel de Paris, 6 mars 2020

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

Pourvoi c/ Tribunal de grande instance de Rennes, 25 octobre 2019

Pourvoi c/ Cour d'appel de Nîmes, 19 septembre 2019

Pourvoi c/ Cour d'appel de Paris, 8 avril 2020

Pourvoi c/ Cour d'appel de Grenoble, 14 avril 2020

Pourvoi c/ Cour d'appel de Nîmes, 14 avril 2020

Professor (and co-editor of this blog) Gilles Cuniberti has published a new article on SSRN, entitled Signalling the Enforceability of the Forum’s Judgments Abroad, where he addresses the already well documented issue of the rise of international commercial courts (and chambers), from a very specific point of view – that of the recognition of the local judgments abroad.

The long, already substantial introduction starts with what may look like a banal recollection

Private international law has traditionally been concerned with the recognition and enforcement of foreign judgments in the forum. In contrast, private international law does not address the recognition and enforcement of the judgments rendered by the courts of the forum in other jurisdictions.

But proves to be the perfect way to open the rich elaboration of thoughts. Indeed, as the author goes on saying, the customary lack of PIL rules dealing with the export of local decisions does not mean that States do not care for the fate of their judgments in other jurisdictions; they do. And while the assertion may surprise if one looks only at the limited success of all efforts to get to a multilateral convention on the enforcement of judgements, the broader view proves it is right. This wider picture points to what the author calls “a shift of paradigm”, where the new international commercial courts feature as main actors:

(i)n many parts of the world, adjudication began to be perceived as a business; a number of states established new courts, or new divisions in their courts, for the purpose of attracting judicial business (…) While these courts have different aims and goals, they all have in common the need to market themselves to potential users. And many have concluded that the enforceability of their judgments abroad is an essential dimension of their marketability.

From this point on, after some paragraphs on the New York Convention on the enforcement of arbitral awards, rightly recalling that the Convention does not guarantee enforcement of such awards, the article proceeds to document and assess the efforts made by international commercial courts to signal the enforceability of their judgments abroad. In a nutshell, three strategies have been developed to that effect:

The first and most obvious one has been to try to enter into agreements providing for the mutual enforcement of judgments of contracting states, which could serve the same function as the 1958 New York Convention for arbitral awards.

Secondly, in light of the limited scope of the 2005 Hague Convention, and with the 2019 Hague Convention not yet in force, alternative strategies have been developed. In this context, several international commercial courts are actively pursuing the conclusion of non binding documents with other courts suggesting that the judgments of the own forum would be enforced by the courts of other states. The aim of these bilateral or even multilateral memoranda, which clearly declare they do not constitute any kind of legislation, is basically to promote the mutual understanding of the law of the participating courts on enforcement of foreign judgments.

In addition, documents suggesting enforceability of judgments abroad are sometimes sought from private actors knowledgeable in the law of foreign judgments, such as academics or law firms. However, as Professor Cuniberti correctly points out, what such guides can bring in terms of signalling the enforceability of one’s courts decisions abroad may be disputed, and a little bit more is required if documents authored by private actors are to be accorded any signalling power.

The third strategy, so far limited to the courts on the Dubai International Financial Center, consist of converting judgments into arbitral awards.

The article ends up with a reflection on remedies in case of deceptive practice: if international commercial adjudication has become a business, with a number of courts acting as service providers – and as such, marketing their services- it would not be acceptable that they adopt strategies misleading potential customers. The article leaves quite open what the remedies should be. There may be, thus, a follow up.

The final version of this publication is included in the next issue of the Rivista di Diritto Internazionale Privato e Processuale.

Written by Oliver Dörr, University of Osnabrück

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

I. Companies – responsibility

1. As for commercial entities, international law is concerned, above all, with transnational or multinational companies. The term basically describes the conglomerate of commercial entities that are acting separately in at least two different countries and which are tied together by a regime of hierarchical coordination.

2. In times of „global governance“ the international legal concept of responsibility is undergoing a process of de-formalization and, thus, encompasses the violation of social behavioural expectations, which for companies may result from international standards that are not legally binding. The resulting responsibility is a legal one insofar as the law adopts those standards and attaches negative consequences to their violation.

II. Private persons and the law of international responsibility

3. Private companies may be held responsible under international law to the extent that they are either themselves bound by primary legal obligations (direct responsibility), or their business activities are regulated by States which, in doing so, are fulfilling their own international legal obligations (indirect responsibility). A State may just as well impose such regulation without actually being under an obligation to do so (e.g. the US Alien Tort Statute).

Private persons as subjects of international legal obligations

4. Private persons being themselves bound by international legal obligations pertain to the process of de-medatization, which established the legal personality of the individual under international law.

5. Sovereign States can, by concluding international treaties, create legal obligations for private persons, including private companies, directly under international law. The personal scope of this comprehensive law-creating power of States is delimitated by their personal jurisdiction under international law. Whether an individual treaty itself gives rise to legal obligations for private persons, is, just as the creation of individual rights, a matter of treaty interpretation.

6. Genuine legal obligations have evolved for private persons under international criminal law: Here, detailed primary obligations of private persons have developed that are linked to a specific regime of individual responsibility, in particular under the Statute of the International Criminal Court.

7. In contrast, the extension of international human rights obligations to apply directly between private persons is not yet part of the international lex lata. Individual texts pointing in that direction (such as art. 29 para. 1 of the Universal Declaration of Human Rights) are merely of a programmatic nature.

8. Genuine international legal obligations of companies can today be found in the rules regulating deep sea-bed activities (arts. 137, 153 para. 2 UN Convention on the Law of the Sea) and in various treaties establishing regimes of civil liability.

9. Obligations of private persons under international law, including those having direct effect within UN Member States, may also be created by the UN Security Council through resolutions under arts. 39, 41 of the UN Charter.

10. It is fairly uncertain whether the initiative, currently being undertaken within the UN Human Rights Council, to adopt a „legally binding instrument“ encompassing direct human rights liability of private companies, will ever have a chance of becoming binding law.

11. To the extent that there actually are primary obligations of private persons under international law, a general principle of law requires their violation to result in a duty to make reparation. Only in exceptional circumstances could the rules of State responsibility be transferred to private persons.

Obligations to establish the responsibility of private persons

12. An indirect responsibility under international law applies to undertakings via the international legal obligation of States to criminalize certain activities, e.g. in respect of waste disposal, bribery in foreign countries, organized crime and corruption.

Responsibility of private persons under autonomous national law

13. Provisions in national law that autonomously sanction private acts for international law violations bridge with their own binding effect the fact that the private person is not itself bound by the international legal norm.

14. The French Law No. 399-2017 on the plan de vigilance is far too general and vague to serve as an example for an (indirect) international legal reporting responsibility. The same applies to the CSR directive of the European Union of 2014.

III. Responsibility on the basis of non-binding rules of conduct

Behavioural governance without legally binding effects

15. The values contained in certain international law principles shape some social behavioural expectations that are summarized today in concepts of corporate social responsibility (CSR). As a matter of substance, those expectations relate to human rights, the environment, conditions of labour and fighting corruption.

Processes of rule-making

16. The discussion is mainly focused on certain international, cross-sector corporate codes of conduct, such as the OECD Guidelines for Multinational Enterprises (1976), die ILO Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy (1977), the UN Global Compact (2000) and the UN Guiding Principles on Business and Human Rights (2011).

17. In particular, with regard to human rights and environment, those rules are extremely unspecific, which means that here, law merely serves as a backdrop in order to endow social behavioural expectations with moral authority.

Responsibility by reception

18. In order to adopt and implement those business-related standards, basically all instruments of law-making and application can be used, as long as they impose normative requirements on companies and their activities. Legal certainty standards under the rule of law, as well as the rules of international law on the jurisdiction of States, can limit the reception.

19. Non-binding standards could be implemented, for example, via the legal regimes of State aid (in particular with respect to export finance), public procurement, investment protection and the rules on civil liability. So far, however, the international standards on business conduct are rarely being implemented in a legally binding manner.

IV. Conclusion

20. If the distinction of law and non-law is to be maintained, responsibility of companies in international law is a theoretical possibility, but of little practical relevance: Only in very specific circumstances are private companies themselves subjected to international legal obligations; moreover, it is similarly rare that „soft“ international standards of conduct are being adopted by „hard“ law and thereby made into specific legal duties of companies.

21. Behavioural standards that determine the international debate on CSR assign a mere „backdrop function“ to the law, as they neither identify concretely the international legal norms referred to, nor differentiate them properly. In that context, companies are simply required to publicly declare their commitment to „the good cause“, which results in duties to take precautionary measures, to exercise transparency and to publish reports.

22. That is why environmental protection, human rights etc. in relation to the activities of private companies is still mainly the responsibility of States. Tools that exist in international law in this respect, such as the rules of attribution or protective duties, must be adapted and enhanced, in order to achieve adequate solutions for detrimental business conduct on the basis of State responsibility.

 

Full (German) version: Oliver Dörr, Unternehmensverantwortlichkeit im Völkerrecht, in: August Reinisch, Stephan Hobe, Eva-Maria Kieninger & Anne Peters (eds), Unternehmensverantwortung und Internationales Recht, C.F. Müller, 2020, pp. 133 et seq.

 

Le mois d’avril 2020 a été marqué par deux décisions en matière de droit européen de l’asile, l’une de la Cour de justice et l’autre de la Commission de l’Union européenne. Celles-ci portent notamment sur les rapports entre la protection du droit d’asile et les impératifs de sécurité intérieure et de sécurité sanitaire (liée au Covid-19). Tout laisse à penser que ces derniers ne pourront être invoqués par les États membres pour échapper à leurs obligations en matière de traitement des demandes d’asile et de relocalisation.

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