Flux des sites DIP

Just published by Routledge, the book Human Rights in Business: Removal of Barriers to Access to Justice in the European Union presensts the final results of the project which received a 2013 Civil Justice Action Grant from the European Commission Directorate General for Justice. The book is edited by Juan José Álvarez Álvarez Rubio and Katerina Yiannibas and includes a long list of reknown contributors from academia, legal practice and civil society. The begining of the official description from the book reads:

The capacity to abuse, or in general affect the enjoyment of human, labour and environmental rights has risen with the increased social and economic power that multinational companies wield in the global economy. At the same time, it appears that it is difficult to regulate the activities of multinational companies in such a way that they conform to international human, labour and environmental rights standards. This has partially to do with the organization of companies into groups of separate legal persons, incorporated in different states, as well as with the complexity of the corporate supply chain. Absent a business and human rights treaty, a more coherent legal and policy approach is required.

It is available for free download as an eBook:

– To download from the book’s page on the Routledge website, choose “Other eBook Options” button for download options.
– To download the free ebook from Amazon, click here.
– To download the free ebook from iTunes, click here.

The Dieselgate: A Legal Perspective, edited by / a cura di Marco Frigessi di Rattalma, Springer, 2017, ISBN 9783319483221, pp. X+218, EUR  145,59.

This book explains, compares and assesses the legal implications of Dieselgate within a range of selected jurisdictions and at the EU, international and comparative law level.The book analyses the US EPA-VW $14.7 billion dollar settlement of 2016, one of the largest civil settlements in the history of environmental law. As it shows, the Dieselgate affair has raised a host of issues concerning corporate and social responsibility, tort liability, environmental liability, contractual defective products, warranty, and false environmental claims in a range of jurisdictions. Issues like repurchasing or retrofitting cars from consumers and making direct payments to consumers through car buy-backs and compensation are analysed. Further, the book relates how Dieselgate has also contributed to the discussion about the introduction of more effective collective measures of redress for consumers, such as class actions, in Germany, France, Italy and the UK.The book subsequently reviews the criminal offences Volkswagen is currently confronted with in Germany, France and Italy, i.e. fraud and manipulation of capital markets (by belatedly providing shareholders with essential information relevant for the share value), and, potentially, environmental crimes. It demonstrates how Dieselgate has sparked new debates in Germany, Italy, France and the UK about the need to introduce enterprise liability for organised crimes, lack of compliance and control structures, and intentional violations of the law.Lastly, the book discusses how EU law has sought to respond to Dieselgate and thus investigates the controversial EU Regulation No. 2016/646 introducing a “temporary conformity factor” of 2.1 (equivalent to a 110% increase on the current limit) to be applied for NOx in the new RDE testing cycle, and the works of the EU committee of inquiry into Emissions Measurements in the Automotive Sector (EMIS).

Belgium has today signed the 2000 Hague Convention on the International Protection of Adults.

This Convention is currently in force in nine States: Austria, the Czech Republic, Estonia, Finland, France, Germany, Monaco, Scotland and Switzerland. It has been signed but not yet ratified by nine other States, now including Belgium.

For more information see the website of the Hague Conference on Private International Law.

This new book, edited by Juan José Álvarez Rubio and Katerina Yiannibas, addresses the fact that the increased social and economic power of multinational parties has augmented their capacity to affect human, labour and environmental rights.

The book’s publicity reads:

Faced with the challenge of how to effectively access the right to remedy in the European Union for human rights abuses committed by EU companies in non-EU states, a diverse research consortium of academic and legal institutions was formed. The consortium, coordinated by the Globernance Institute for Democratic Governance, became the recipient of a 2013 Civil Justice Action Grant from the European Commission Directorate General for Justice. A mandate was thus issued for research, training and dissemination so as to bring visibility to the challenge posed and moreover, to provide some solutions for the removal of barriers to judicial and non-judicial remedy for victims of business-related human rights abuses in non-EU states. The project commenced in September 2014 and over the course of two years the consortium conducted research along four specific lines in parallel with various training sessions across EU Member States.

The research conducted focused primarily on judicial remedies, both jurisdictional barriers and applicable law barriers; non-judicial remedies, both to company-based grievance. The results of this research endeavour make up the content of this report whose aim is to provide a scholarly foundation for policy proposals by identifying specific challenges relevant to access to justice in the European Union and to provide recommendations on how to remove legal and practical barriers so as to provide access to remedy for victims of business-related human rights abuses in non-EU states.

More information is available on the Routledge’s site.

On 2 February 2017 the European Parliament adopted a resolution urging the EU Commission to propose rules aimed at facilitating the recognition of ‘domestic’ adoptions, i.e. in cases where the adopters and the adopted child are resident in the same country. It is worth noting that the 1993 Hague Convention on Intercountry Adoptions requires automatic recognition of adoptions between contracting States, which include all EU Member States, but applies only to cases in which the parents and the adopted child are from different countries. The resolution further suggests creating a European Certificate of Adoption and calls for common minimum standards for adoption, in the form of ‘best practice’ guidelines. The resolution is accompanied by a study drawn up by the European Parliamentary Research Service, with a contribution by Ruth Cabeza, Claire Fenton-Glynn and Alexander Boiché.

Il 2 febbraio 2017 il Parlamento europeo ha adottato una risoluzione che invita la Commissione a proporre regole che agevolino il riconoscimento delle adozioni fra uno Stato membro dell’Unione e l’altro nei casi in cui chi adotta e chi viene adottato risiedono nello stesso paese. Giova ricordare che la convenzione dell’Aja del 1993 sulle adozioni internazionali richiede il riconoscimento automatico delle adozioni in tutti gli Stati contraenti, fra cui rientrano tutti gli Stati membri, ma si applica solo quando gli adottanti e l’adottato risiedono in paesi differenti. La risoluzione suggerisce inoltre la creazione di un Certificato europeo di adozione e propone l’elaborazione di standard minimi comuni da seguire in caso di adozione, sotto forma di buone pratiche. La risoluzione è accompagnata da uno studio elaborato dal Servizio ricerca del Parlamento europeo, con un contributo di Ruth Cabeza, Claire Fenton-Glynn e Alexander Boiché.

Professor Andrew Dickinson, St Catherine’s College, University of Oxford, has kindly provided this information regarding the conference referred to below. Dr Lorna Gillies, University of Strathclyde, and Dr Máire Ní Shúilleabháin, University College Dublin are co-conveners.

This is a call for papers and panels for the Conflict of Laws section of the 2017 SLS Annual Conference to be held at University College Dublin from Tuesday 5th September – Friday 8th September.  This year’s theme is ‘The Diverse Unities of Law’.

This section is new to the SLS Annual Conference and is being run as a trial section. With your support, we can ensure that the section is included in future conferences.

The Conflict of Laws section will meet in the first half of the conference on Tuesday 5th and Wednesday 6th September. Two speakers (Professor Alex Mills, UCL and Professor Eva Lein, BIICL/University of Lausanne) have kindly already agreed to give a paper within the section.

We intend that the section will comprise four sessions of 90 minutes, with 3 or more papers being presented in each session, followed by discussion. At least three of the sessions will be organised by subject matter. We hope, if submissions allow, to be able to set aside the fourth session for papers by early career researchers (within 5-years of PhD or equivalent).

We welcome proposals from scholars in the field for papers or panels on any issue relating to any topical aspect of the Conflict of Laws (private international law), including but not limited to those addressing this year’s conference theme.
If you are interested in delivering a paper, please submit a proposed title and abstract of around 300 words. If you wish to propose a panel, please submit a document outlining the theme and rationale for the panel and the names of the proposed speakers (who must have agreed to participate), together with their proposed titles and abstracts.

All abstracts and panel details must be submitted by midnight on Monday 27th March through the EasyChair conference system which can be accessed using this link.  Full instructions on how to use the EasyChair system can be found here. If you experience any issues in using EasyChair, please contact Jed Meers at jed.meers@york.ac.uk.

As the SLS is keen to ensure that as many members with good quality papers as possible are able to present, we discourage speakers from presenting more than one paper at the conference.  With this in mind, when you submit an abstract via EasyChair, you will be asked to note if you are also responding to calls for papers or panels from other sections.

We should also note that the SLS offers a Best Paper Prize which can be awarded to academics at any stage of their career and which is open to those presenting papers individually or within a panel.  The Prize carries a £250 monetary award and the winning paper will be published in the first issue of Legal Studies in 2018.  To be eligible:

speakers must be fully paid-up members of the SLS;

papers must not exceed 12,000 words including footnotes (as counted in Word);

papers must be uploaded to EasyChair by midnight on Monday 28th August; and

papers must not have been published previously or have been accepted or be under consideration for publication.

We have also been asked to remind you that all speakers will need to book and pay to attend the conference and that they will need to register for the conference by the end of June in order to secure their place within the programme, though please do let me/us know if this is likely to pose any problems for you.  Booking information will be circulated in due course.

A call for posters will be issued separately in due course.

The current issue of the JuristenZeitung features two articles dealing with the effects of Brexit on private and economic law, including private international law.

The first article, authored by Matthias Lehmann, University of Bonn, and Dirk Zetzsche,  University of Liechtenstein,  discusses the various options to bring about Brexit and analyses their consequences for the law of contractual and non-contractual obligations (including choice of law), corporate law, insolvency law and procedural law  (Die Auswirkungen des Brexit auf das Zivil- und Wirtschaftsrecht, pp. 62-71).

The second article, authored by myself,  sheds light on the effects Brexit will have on London as a place for settling international legal disputes (Die Wahl englischen Rechts und englischer Gerichte. Zur Zukunft des Justizstandorts England, pp. 72-82). It shows that Brexit creates substantial uncertainty (1) as regards the enforcement of English choice of law and English choice of forum clauses and (2) as regards the recognition and enforcement of English judgments abroad. Unless the UK and the EU agree on the continued application of the Rome I Regulation, the Rome II Regulation and the (recast) Brussels I Regulation (or enter into a new treaty designed to enhance judicial cooperation in civil matters), Brexit will, therefore, make it less attractive to settle international disputes in London.

Both articles can be downloaded here and here (behind pay wall, unfortunately).

I have written this blog post with in my mind a rather bibliographical purpose: having collated all sources I would rather like finding them all back again. In [2017] EWHC 31 (Comm) Micula and others v Romania and the European Commission, the High Court effectively halted the enforcement of an ICSID award, pending a Court of Justice Ruling (in Case T-694/15) on the legality of an EC finding of State Aid. The Award arose out of the Romania-Sweden BIT and as such got caught up in the maelstrom (this could have been an intended pun however etymologically the word is Dutch, not Swedish) of discussions surrounding EU competencies in intra-EU Bilateral Investment Treaties (for background on that issue see here).

Not quite following the rabbit down the hole however nevertheless quite a wonderland of colliding legal regimes.

Geert.

By Ekaterina Aristova, PhD in Law Candidate, University of Cambridge

On 26 January 2017, Mr Justice Fraser, sitting as a judge in the Technology and Construction Court, ruled that a claim against Royal Dutch Shell plc, an English-domiciled parent company (“RDS”), and its Nigerian operating subsidiary Shell Petroleum Development Company of Nigeria Ltd (“SPDC”) will not proceed in the English courts. These proceedings represent one of the many private claims brought by the foreign citizens in the courts of the Western states alleging direct liability of parent companies for the overseas human rights abuses. Despite an increased number of such foreign direct liability cases in the English courts, the issue of jurisdiction still remains one of the principle hurdles faced by the claimants and their lawyers in pursuing civil litigation against transnational corporations (“TNCs”) outside the territory of the state where main events leading to the alleged crime took place and damage was sustained.

Last year, Mr Justice Coulson allowed a legal claim against English-based mining corporation Vedanta Resources plc and its Zambian subsidiary to be tried in England. The overall analysis of the judgement in Lungowe v Vedanta Resources plc suggested that (i) the claims against the parent company in relation to the overseas operations of the foreign subsidiary can be heard in the English courts; and (ii) the existence of an arguable claim against the English-domiciled parent company also establishes jurisdiction of the English courts over the subsidiary even if the factual basis of the case occurs almost exclusively in the foreign state. Although Mr Justice Fraser has not questioned any of the conclusions reached by his colleague, he made it very clear that establishing an arguable claim on the liability of the English-domiciled parent company for the foreign operations of its overseas subsidiary is a challenging task.

The claimants in Okpabi v Shell were Nigerian citizens who commenced two sets of proceedings against RDS and SPDC. The first claim was brought on behalf of the Ogale community, while the second was initiated by the inhabitants of the Bille Kingdom in Nigeria. Both claims alleged serious and ongoing pollution and environmental damage caused by oil spills arising out of the Shell operations in and around the claimants’ communities. The claimants argued that RDS breached the duty of care it owed to them to ensure that SPDC’s operations in the Niger Delta did not cause harm to the environment and their communities. The claims against SPDC were brought on the basis that it was a necessary or proper party to the proceedings against RDS. The defendants argued that both claims have nothing to do with England and should proceed in Nigeria. They claimed that RDS was used as an “anchor defendant” and a device to ensure that the real claim against SPDC was also litigated in England.

Mr Justice Fraser has responded to these arguments by raising several questions which should have been answered in order to assert jurisdiction of the English courts over both claims (at [20]). It was agreed by both of the parties that the principal question was whether the claimants had legitimate claims in law against RDS. In the opinion of the judge, the claimants failed to provide evidence that there was any duty of care upon RDS as an ultimate holding company of the Shell Group for the acts and/or omissions of SPDC, and the claims against RDS should not proceed (at [122]). In the absence of the proceedings against RDS, the claims against SPDC did not have any connection with the territory of England as they were brought by the Nigerian citizens against Nigerian company for the breach of Nigerian law for acts and omissions in Nigeria (at [119]). Hence, application of SPDC also succeeded (at [122]).

Analysis of the Shell Group corporate structure and its relevance to the existence of the duty of care of the parent company represents the core of the judgement. The judge relied on the fact that RDS was a holding company with no operations whatsoever (at [114]). He took into account that only two officers of RDS were members of the Executive Committee of the Shell Group; RDS only dealt with the financial matters of the group’s business that affect it as the ultimate holding company; it did not hold any relevant license to conduct operations in Nigeria; and it did not have specialist knowledge on the oil exploration (at [114-116]). Mr Justice Fraser noted that evidence on the part of the claimants was “extremely thin” and “sketchy” (at [89]). The claimants heavily relied on the public statements by RDS regarding control over SPDC and environmental strategy of the Shell Group (at [99]). The judge did not consider that such evidence could alone demonstrate that RDS owed a duty of care to the claimants. Mr Justice Fraser stated that separate legal personality of the constituent entities of corporate group represents a fundamental principle of English law (at [92]) and claimants failed to provide evidence of high degree of control and direction by RDS sufficient to meet the three-fold test on the existence of duty of care set by Caparo Industries plc v Dickman and clarified by Chandler v Cape.

The judgment raises several sets of issues. First of all, it clearly confirmed the dominance of the entity-based approach to the nature of TNCs. It was established that certain powers of RDS such as adoption of the group policies does not alone put it in any different position than would be expected of an ultimate parent company (at [102, 106]). In this sense, decision of Mr Justice Fraser is in line with previous practice of the UK courts on the rules of jurisdiction in cases involving TNCs. Thus, in Young v Anglo American South Africa Limited, the Court of Appeal ruled that the powerful influence of the parent company does not by itself causes legal consequences, and should not have any impact on the determination of the domicile of the subsidiaries. Secondly, the judge argued that any references to Shell and Shell Group made by RDS in public statements do not dilute the concept of separate legal personality. This finding is of utmost importance since “common legal persona” is often considered to be not only a particular feature of TNC itself but the factor evidencing that parent company and the subsidiary operate as a single economic unit.

Moreover, attention should be paid to the note of warning expressed by Mr Justice Fraser with respect to the scale of the litigation against Shell. It was stated that approach of the parties to produce an extensive amount of witness and expert statements, authority bundles and lengthy skeleton arguments is “wholly self-defeating and contrary to cost-efficient conduct of litigation” (at [10]). It is inevitable, however, that mass tort actions against TNCs raise a number of complex legal and factual issues which require examination of the considerable amount of evidence, authorities and data. Given the fact that UK Parliament is currently in the process of Human Rights and Business inquiry, including access to effective remedy in the UK, the burden of litigation against TNCs on the English courts could easily become a policy argument.

The judgement in Okpabi v Shell definitely has an impact on the development of the tort litigation against TNCs in the English courts. Amnesty International has suggested that it “gives green light for corporations to profit from overseas abuses”. Although the judge did not fundamentally challenged the Vedanta decision, the strict adherence to the entity-based legal concepts suggests that the novel foreign direct liability cases are still far from advancing to the new level. Leigh Day, solicitors representing the Nigerian communities, have already confirmed that their clients will appeal the decision of Mr Justice Fraser. Even if the Court of Appeal reverses the ruling, the claimants would still struggle in establishing direct liability of the parent company for environmental pollution in Nigeria, since the jurisdictional test is easier to meet as opposed to a liability one. It has become known that Vedanta decision is itself being appealed by the corporate defendants. In any case, 2017 promises to be a momentous year for the victims of corporate human rights abuses looking at the English courts as their last hope for justice.

Thank you Jonathan Cocker for flagging Ontario’s stakeholder consultation on renewable fuel standards, aka biofuels. Current thinking, outlined in the discussion paper, is to make the standards ‘performance based’: ie without pushing one or rather additive and exclusively focus on achieved (documented) reduction of greenhouse gas emissions.

Biofuels are known to create international trade tension. Argentina and the EU are still formally in consultation over the EU’s approach. Various WTO dispute settlement concerns anti-dumping duties on biofuels. Finally one or two elements of WTO dispute settlement on support for renewable energy touch upon fuel standards.

With all that in mind one particular element of the Ontario regime caught my attention: the intention to regulate GHG emissions ‘well to wheel’: ie ‘to assess emissions performance across the fuel’s full well-to-wheel lifecycle, from extraction to processing, distribution and end-use combustion.’(p.6). Canada does that already for  diesel, with its 2014 greener diesel Regulation, employing what is known as the ‘GHGenius’ model.

What I have not been able to gauge from my admittedly limited research into that model: does it at all and if so how, apply to particularly extraction outside of Canada indeed outside Ontario? For the EU, much of the biofuel production (let alone biofuel imports) at some point or another involves extra-EU elements. How does a well to wheel method in such case work under WTO rules?

Geert.

Il diritto societario europeo e internazionale, edited by / a cura di M. Benedettelli, M. Lamandini, Utet, 2016, ISBN 9788859814733, 832 pp., EUR 90.

Pur non esistendo di fatto un diritto societario europeo codificato, la legislazione dell‘Unione prevede norme minime applicabili alle imprese in tutto il territorio. Due importanti strumenti legislativi adottati dal Consiglio hanno portato alla creazione della figura della “società europea” che avrebbe dovuto essere regolata da un diritto sovranazionale, mentre invece gli Stati membri continuano ad applicare norme societarie proprie, modificandole di tanto in tanto, per conformarsi alle direttive e ai regolamenti emanati. In un contesto economico nel quale società e imprese operano sempre più in differenti contesti, all’interno dell’Unione europea e non, l’opera rappresenta un importante strumento per l’approfondimento dei regimi normativi vigenti a livello comunitario e internazionale. 

The fourth issue of 2016 of the Dutch Journal on Private International Law, Nederlands Internationaal Privaatrecht, is dedicated to Private International Law and Intellectual Property. It includes papers on the law applicable to copyright infringements on the Internet, how to handle multiple defendants in intellectual property litigation, the incorporation of the Unified Patent Court into the Brussels I bis regulation,  principles of private international law and aspects of intellectual property law and the territoriality principle in intellectual property.

Sierd J. Schaafsma, ‘Editorial: Private International law and intellectual property’, p. 685-686 (guest editor)

Paul L.C. Torremans, ‘The Law applicable to copyright infringement on the Internet’, p. 687-695

This article looks at the law applicable to copyright infringement on the Internet. In order to do so we need to look first of all at the rules concerning the applicable law for copyright infringement in general. Here the starting point is the Berne Convention. Its provisions give an indication of the direction in which this debate is going, but we will see that they merely provide starting points. We then move on to the approach in Europe under the Rome II Regulation and here more details become clear. Essentially, the existing rule boils down to a lex loci protectionis approach, which is in conformity with the starting point that is found in the Berne Convention. It is however doubtful whether such a country by country approach can work well in an Internet context and suggestions are made to improve the legal framework by adding a rule for ubiquitous infringement and a de minimis rule. Finally, we also briefly look at the issues surrounding the cross-border portability of online content services and the impact that the current focus on these may have in terms of the choice of law.

Sierd J. Schaafsma, ‘Multiple defendants in intellectual property litigation’, p. 696-705

One of the key provisions in international intellectual property litigation is the forum connexitatis in Article 8(1) of the Brussel I bis Regulation. This jurisdiction provision makes it possible to concentrate infringement claims against various defendants, domiciled in different EU Member States, before one court: the court of the domicile of any one of them. The criteria of Article 8(1) are, however, complicated and the case law of the Court of Justice is not always very clear. This contribution seeks to explore, evaluate and comment on the current state of affairs in respect of Article 8(1) in the context of intellectual property litigation.

Michael C.A. Kant, ‘The Unified Patent Court and the Brussels I bis Regulation’, p. 706-715

According to the Agreement on a Unified Patent Court (UPCA), the establishment of a Unified Patent Court (UPC) for the settlement of disputes relating to European patents and European patents with unitary effect also depends upon amendments to the Brussels I bis Regulation (BR) concerning its relationship with the UPCA. In light of this, the European legislator established new Articles 71a to 71d BR. Unfortunately, these provisions have effected uncertainties and schematic inconsistencies within the Brussels system. Besides, inconsistencies have been established between jurisdiction rules of the BR and competence rules of the UPCA. The most notable flaws in this respect are discussed in this contribution.

Michelle van Eechoud, ‘Bridging the gap: Private international law principles for intellectual property law’, p. 716-723

This past decade has seen a veritable surge of development of ‘soft law’ private international instruments for intellectual property. A global network has been formed made up of academics and practitioners who work on the intersection of these domains. This article examines the synthesizing work of the International Law Association’s Committee on intellectual property and private international law. Now that its draft Guidelines on jurisdiction, applicable law and enforcement are at an advanced stage, what can be said about consensus and controversy about dealing with transborder intellectual property disputes in the information age? What role can principles play in a world where multilateral rulemaking on intellectual property becomes ever deeply politicized and framed as an issue of trade? Arguably, private international law retains it facilitating role and will continue to attract the attention of intellectual property law specialists as a necessary integral part of regulating transborder information flows.

Dario Moura Vicente, ‘The territoriality principle in intellectual property revisited’, p. 724-729

This essay revisits territoriality as the founding principle of international IP law. Both copyright and rights in patents and trademarks were essentially conceived by the drafters of the Berne and Paris Conventions as territorial rights which should be governed by the law of the country for which their protection is claimed. This is still the starting point of the relevant provisions in several recent soft law instruments adopted, inter alia, by the American Law Institute and the European Max Planck Group on Conflict of Laws in IP. An important deviation therefrom has, however, been enshrined in conflict of jurisdictions rules that allow for the extraterritorial enforcement of IP rights. Other relevant developments in this respect concern Internet uses of protected works, with regard to which certain restrictions to territoriality have been adopted in order to promote the applicability of a single law to online infringements. The liability of Internet service providers should, in turn, be governed by the law of the country where the centre of gravity of their activities is located, not necessarily the lex protectionis. Other alternatives to the lex protectionis, such as the lex originis or the lex contractus, have gained prominence concerning the initial ownership of unregistered IP rights. And a choice of the applicable law by the parties has been allowed in respect of remedies for infringement acts, as well as of contracts providing for the creation or the transfer of securities in IP rights. A mitigated form of territoriality has thus emerged in recent IP law instruments, which allows for greater diversity and flexibility in conflict of laws solutions in this field.

Where does one look first? : as I reported last week, Ms Kiobel is now taking her US case to The Netherlands (this case essentially involves human rights), at a time when Shell is still pursued in the Netherlands by Milieudefensie, in a case involving environmental pollution in Nigeria. That case now is being mirrored in the High Court in London. The dual proceedings are squarely a result of the split listing of Shell’s mother company, thus easily establishing jurisdiction in both The Netherlands and London, under Article 4 Brussels I Recast.

The only preliminary issue which the High Court had to settle at this early stage was whether Shell’s holding company, established in the UK, can be used as anchor defendant for proceedings against Shell Nigeria. It held that it could not. The questions dealt with are varied and listed as follows:

1. Do the claimants have legitimate claims in law against RDS?

2. If so, is this jurisdiction the appropriate forum in which to bring such claims? This issue encompasses an argument by RDS that it is an abuse of EU law for the claimants to seek to conduct proceedings against an anchor defendant in these circumstances.

3. If this jurisdiction is the appropriate forum, are there any grounds for issuing a stay on case management grounds and/or under Article 34 of the Recast Regulation in respect of the claim against RDS, so that the claim against SPDC can (or should) proceed against SPDC in Nigeria?

4. Do the claims against SPDC have a real prospect of success?

5. Do the claims against SPDC fall within the gateway for service out of the jurisdiction under paragraph 3.1(3) of CPR Practice Direction 6B?

This issue requires consideration of two separate sub-issues, namely (a) whether the claims against RDS involve a real issue which it is reasonable for the Court to try; and (b) whether SPDC is a necessary or proper party to the claims against RDS.

6. Is England the most appropriate forum for the trial of the claims in the interests of all parties and for the ends of justice?

7. In any event, is there a real risk the Claimants would not obtain substantial justice if they are required to litigate their claims in Nigeria?

In detailed analysis, Fraser J first of all seems to accept case-management as a now established route effectively to circumvent the ban on forum non conveniens per Owuso (see Goldman Sachs and also reference in my review of that case, to Jong and Plaza). Over and above case-management he refers to potential abuse of EU civil procedure rules to reject the Shell Nigeria joinder. That reference though is without subject really, for the rules on joinders in Article 8 Brussel I recast only apply to joinder with companies that are domiciled in the EU – which is not the case for Shell Nigeria.

Of specific interest to this blog post is Fraser J’s review of Article 7 Rome II: the tailor made article for environmental pollution in the determination of lex causae for torts: in the case at issue (and contrary to the Dutch mirror case, which is entirely being dealt with under residual Dutch conflicts law) Rome II does apply to at least part of the alleged facts. See here for my background on the issue. That issue of governing law is dealt with at para 50 ff of the judgment.

For environmental pollution, plaintiff has a choice under Article 7 Rome II. Either lex damni (not appealing here: for Nigerian law; the judgment discusses at some length on the extent to which Nigerian law would follow the English Common law in issues of the corporate veil), or lex loci delicti commissi. This, the High Court suggest, can only be England if two questions are answered in the affirmative (at 79). The first is whether the parent company is better placed than the subsidiary to avoid the harm because of its superior knowledge or expertise. The second is, if the finding is that the parent company is better placed, whether it is fair to infer that the subsidiary will rely upon the parent. With reference to precedent, Fraser J suggest it is not enough for the parent company simply to be holding shares in other companies. (Notice the parallel here with the application of ATS in Apartheid).

The High Court eventually holds that there is no prima facie duty of care than can be established against the holding company, which would justify jurisdiction vis-a-vis the daughter. At 106, the Court mirrors the defendant’s argument: it is the Nigerian company, rather than the holding, that takes all operational decisions in Nigeria, and there is nothing performed by the holding company by way of supervisory direction, specialist activities or knowledge, that would put it in any different position than would be expected of an ultimate parent company. Rather to the contrary, it is the Nigerian company that has the specialist knowledge and experience – as well as the necessary licence from the Nigerian authorities – to perform the relevant activities in Nigeria that form the subject matter of the claim. … It is the specialist operating company in Nigeria; it is the entity with the necessary regulatory licence; the English holding company is the ultimate holding company worldwide and receives reports back from subsidiaries.

Plaintiffs have been given permission to appeal. Their lawyers have indicated to rely heavily on CJEU precedent, particularly T-343/06 Shell v EC. This case however concerns competition law, which as I have reported before, traditionally has had a theory on the corporate veil more easily pierced than in other areas. Where appeal may have more chance of success, I believe is in the prima facie character of the case against the mother company. There is a thin line between preliminary assessment with a view to establishing jurisdiction, and effectively deciding the case on the merits. I feel the High Court’s approach here strays too much into merits territory.

Geert.

The following reminder has been kindly provided by Dr. Susanne L. Gössl. LL.M. (Tulane), University of Bonn.

This is a short reminder that the registration deadline for the first German young scholars‘ PIL conference on April 6th and 7th 2017 at the University of Bonn (see our previous post here) is approaching.

The conference will be held in German. Its general topic is “Politics and Private International Law”.

Professor Dagmar Coester-Waltjen has kindly agreed to deliver our conference’s opening address. Consolidated in four panels with the topics “Arbitration”, “Procedural Law and Conflict of Laws/Substantial Law”, “Protection of Individual Rights and Conflict of Laws” and “Public Law and Conflict of Laws”, a total of eight presentations and one responsio will address current aspects of the relationship between politics and PIL and invite further discussion.

Participation is free, but a registration is required.

The registration deadline is February 28th 2017.

In order to register for the conference, please use this link. Please be aware that the number of participants is limited.

Further information may be found here.

We are looking forward to welcoming many participants to a lively and thought-provoking conference!

Le code marocain de famille en Europe – Bilan comparé de dix ans d’application, edited by / a cura di Marie-Claire Foblets, La charte, 2017, ISBN 9782874034312, 720 pp., EUR 80.

Dans cet ouvrage sont regroupés les résultats d’une recherche comparée qui s’est penchée sur l’application concrète du Code dans cinq pays d’Eu¬rope (la France, les Pays-Bas, l’Espagne, l’Italie et la Belgique) ainsi qu’au Maroc, en portant un intérêt particulier pour les situations de familles de MRE résidant dans ces pays. La recherche couvre deux volets, d’une part, sont étudiées les principales questions que soulevaient depuis 2004 les dossiers et litiges impliquant des MRE vivant en Europe et la manière dont ceux-ci sont traités non seulement par les tribunaux et les administrations publiques, mais également par les services consulaires marocains ; d’autre part, comment sont reçus en droit interne marocain, les décisions judiciaires ainsi que les actes délivrés par les autorités compétentes en matières civiles et familiales dans les pays de résidence de MRE en Europe. À ce jour, très peu est su à propos de cette réception. Ce qui rend cet ouvrage si précieux et utile est la démonstration qui est faite, à travers les diverses contributions, de la difficulté majeure qui – plus de dix années à compter depuis l’entrée en vigueur du Code – continue à se poser pour les autorités administratives et judiciaires des deux rives de la Méditerranée et qui consiste à savoir comment correctement appréhender la manière dont en Europe, d’une part, et au Maroc, de l’autre, est conçue la famille et la manière de réguler les relations, tant entre partenaires, qu’entre parents et leurs enfants.

Helsinki University has four open positions for assistant/associate professors and professors, in the area of Law and Digitalization; Law and Globalisation; Transnational European Law and Russian law and administration.

More information is available here.

Seven years after the first edition, the third and complete edition of this book edited by Prof. Sixto Sánchez Lorenzo (University of Granada) and published by Thomson-Reuters/Aranzadi has finally been released- the actual date is December 2016.

In two volumes (around 2500 pages, in Spanish) this huge academic work, gathering 24 authors of 51 chapters, provides for a complete analysis of legal families, sources, formation, content, interpretation, performance and breach of contract from a comparative perspective. General and singular aspects of contracts, emphasizing convergences and divergences between national legal systems and their impact in international trade, are dealt with therein. International texts, such as CISG, DCFR, PECL, UNIDROIT and OHADAC Principles are also analyzed in each chapter.

ISBN: 9788491359258

Click here to access the summary.

Manlio Frigo, Circulation des biens culturels, détermination de la loi applicable et méthodes de règlement des litiges, Brill, 2016, ISBN: 9789004321298, 552 pp., EUR 18.

La pratique internationale des différends concernant la circulation des biens culturels est devenue très riche pendant les dernières années, grâce à la prolifération de normes internationales applicables et à la multiplication de juridictions compétentes à saisir les litiges. La recherche des liens entre biens culturels et collectivité humaine et territoriale et de l’intérêt protégé à la lumière de l’expérience directe en matière de différends et de négociations, conduisent l’auteur à examiner les critères de rattachement utilisés, aussi bien que la question de la loi matérielle applicable par rapport à l’issue des différends. Les problèmes sont abordés soit par rapport à la spécificité des biens culturels vis-à-vis des règles ordinaires en matière de circulation des meubles, soit en fonction de la recherche du rattachement à l’ordre juridique d’origine des biens concernés. Cet ouvrage évalue les inconvénients découlant de l’application des règles générales édictées par les principaux systèmes de droit international privé en matière de circulation de biens et de constitution de droits réels. L’analyse est conduite aussi à l’égard de la validité des solutions proposées, sur le plan du droit international privé et du droit uniforme, notamment en cas de revendication, de retour ou de restitution de biens culturels, ainsi que de la vérification de l’efficacité des réponses données par la jurisprudence et la doctrine concernant les règles nationales et internationales applicables.

This is a reminder of the Seminar on Brexit and Private International Law at King’s College London on 26 January 2017.

The seminar will discuss the risks which Brexit poses for the UK as a centre for dispute resolution of civil and commercial disputes, with particular reference to Jurisdiction/Enforcement; Applicable law; Procedure; and Cross-border Insolvency law.

The Chair is Professor Jonathan Harris QC.

Speakers are:

Sir Richard Aikens: Brick Court Chambers and King’s College London

Alexander Layton QC: 20 Essex Street Chambers and King’s College London

Dr Manuel Penades Fons: King’s College London

It will take place at King’s College London – Strand Campus at 6.30 p.m.

For registration and more information, see here.

The advance of the English language article-of-article commentary gathers ever more momentum. The series of European Commentaries on Private International Law (ECPIL), edited by Ulrich Magnus and Peter Mankowski, welcomes the publication of its second volume addressing the Rome I Regulation. It assembles a team of prominent authors from all over Europe. The result is the by far most voluminous English language commentary on the Rome I Regulation, the prime pillar of European private international law and the fundament of cross-border trade with Europe. Its attitude is to aspire at leaving virtually no question unanswered. Parties’ choice of law, the tangles of objective connections under Art. 4, consumer contracts, employment contracts, insurance contracts, form and all the other topics of the Rome I Regulation attract the in-depth analysis they truly deserve.