Feed aggregator

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

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

Background 

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

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

Today, a majority of experts agree that the liberal regime established by the directive appears outdated in the context of new digital services providers, such as social networks, collaborative economy platforms or online marketplaces (see the Google France case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

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

Private International Law Issues

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

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

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

European Parliament Draft Recommendations

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

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

Assessment (i) Access to justice and PIL

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

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

(ii) Access rights to data and PIL

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

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

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

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

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

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

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

Mandat d'arrêt européen

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

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

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

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

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

__ Summary of contents: it may be found here

Non lieu à renvoi

Non lieu à renvoi

Non lieu à renvoi

Non lieu à renvoi

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

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

Geert.

 

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

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

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

Written by Tanja Domej, University of Zurich

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

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

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

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

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

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

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

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

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

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

 

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

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

The authors have provided the following abstract in English:

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

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

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

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

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

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

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

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

en lire plus

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

en lire plus

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