Agrégateur de flux

D.V. (Honoraires d’avocat - Principe du tarif horaire)
Rapprochement des législations PROT
Une clause d’un contrat de prestation de services juridiques conclu entre un avocat et un consommateur qui fixe le prix selon le principe du tarif horaire, sans comporter d’autres précisions, ne répond pas à l’exigence de clarté et de compréhensibilité

Lietuvos geležinkeliai / Commission
Concurrence
Abus de position dominante : la Cour confirme l’arrêt du Tribunal infligeant à la société nationale des chemins de fer lituanienne une amende d’environ 20 millions d’euros

HSBC Holdings e.a. / Commission
Concurrence
Concurrence en matière de produits dérivés de taux d’intérêt libellés en euros : la Cour confirme l’annulation de l’amende de 33,6 millions d’euros infligée au groupe HSBC

FTI Touristik (Voyage à forfait aux Îles Canaries)
Rapprochement des législations
Les voyageurs dont le voyage à forfait a été affecté par les mesures de lutte contre la pandémie de Covid-19 peuvent avoir droit à une réduction du prix du voyage

TP (Monteur audiovisuel pour la télévision publique)
Principes du droit communautaire
L’orientation sexuelle ne saurait être une raison pour refuser de conclure un contrat avec un travailleur indépendant

RegioJet
Concurrence
Une juridiction nationale peut ordonner la production de preuves aux fins d’une procédure en dommages et intérêts liée à une infraction présumée au droit de la concurrence, même si la procédure a été suspendue en raison de l’ouverture par la Commission d’une enquête portant sur cette infraction

Österreichische Post (Informations relatives aux destinataires de données personnelles)
Toute personne a le droit de savoir à qui ses données personnelles ont été communiquées

Budapesti Elektromos Művek
Les recours administratif et civil prévus par le règlement général sur la protection des données peuvent être exercés de manière concurrente et indépendante

DOBELES HES
Aide d'État
L’instauration en tant que telle d’une aide d’État ne saurait procéder d’une décision juridictionnelle

The third issue of the Belgian Revue de droit international privé / Tijdschrijft voor international privaatrecht is now available online. The issue contains a selection of ECHR, CJEU, and Belgian national case law posing various problems of private international law.

The ECHR selected cases concern the application of Article 8 ECHR on the right to family life and matters of filiation by surrogacy, the recognition and enforcement of a decision for the return of a child, an international adoption at which the biological father was opposed to, and Article 6 ECHR on access to a fair trial in relation to the application of the 1970 Hague Taking of Evidence Convention.

The CJEU case law selection makes reference to:

• the choice of court clause in the framework of the 2007 Lugano Convention (C-358/21, Tilman);
• the notion of ‘unaccompanied minor’ and the marriage of a minor refugee on the territory of Belgium that does not recognise such a marriage (C-230/21, X v Belgium);
• the recognition of an extrajudicial divorce decision based on an agreement between the spouses before a civil registrar (C-646/20, Senatsverwaltung für Inneres und Sport);
• the employment protection mechanism under Brussels I-bis Regulation (C–604/20, ROI Land Investments);
• the responsibility of an airline company under the 1999 Montreal Convention for bodily injure (post-traumatic stress disorder) suffered by a passenger during an emergency evacuation of an aircraft (C-111/21, BT v Laudamotion);
• the EU trademark protection according to Regulation (EU) 2017/1001 (C-256/21) KP v TV);
• the enforcement in another Member State of an arbitral award for damages based on a bilateral investment treaty (C-333/19, Romatsa);
• the application of Regulation (CE) 261/2004 to delays related to a flight between two airports situated in a third country (c-561/20 Q, R and S v United Airlines);
• the application of Article 7(2) Brussels I-bis Regulation in a collective action for damages against the grandparent company of a daughter insolvent company (Dutch ‘Peeters-Gatzen’ action) for restoring recovery opportunities for creditors (C–498/20, ZK v BMA);
• the clarification of the notion of pending lawsuits within the meaning of Article 292 Solvency II Directive for a winding-up decision abroad on an insurance compensation claim (C–724/20, Paget Approbois);
• the protection against the effects of the extraterritorial application of legislation adopted by the US against Iran concerning commercial relations with certain Iranian undertakings (C-124/20, Bank Melli Iran); and
• the effects of a European certificate of succession and its certified copy valid for an ‘unlimited’ period issued on the application of one of the two heirs concerned by the proceedings (C-301/20, UE and HC v Vorarlberger Landes- und Hypotheken-Bank).

The selection of the Belgian national case law contains several Court of Cassation decisions:

• one (Cour de Cassation, arrêt du 15 septembre 2022) assesses the jurisdiction of Belgian courts over an alleged tort and localisation of damages within the framework of Article 5(3) of the 2007 Lugano Convention in a claim involving UEFA and URBSFA regarding rules of the Financial Fair Play Regulation as contrary to EU public policy (Articles 101 and 102 TFEU). For this case several questions were sent for interpretation of the CJEU in a preliminary ruling regarding the application of Article 5(3) of the 2007 Lugano Convention in relation to a concerted practice of establishing the price of the tickets for football games and the loss of opportunities for football agents to conclude deals or their conclusion under less attractive conditions, the places where these damages take place, and whether reparation can be claimed from the national association (URBSFA) as jointly liable with UEFA;
• the second selected decision (Cour de Cassation, arrêt du 20 mai 2022) deals with the interpretation of the habitual residence of a child and parental responsibility within the framework of Article 8(1) Brussels II-bis Regulation and Article 5 of the 1996 Hague Convention in a case involving a Ukrainian mother and wife of a Belgian citizen who after a forth months stay in Ukraine with the couple’s two children refuses to return to Belgium;
• the third Court of Cassation case (Hof van Cassatie, arrest van 28 April 2022) poses an issue of international competence under Article 1 Brussels I-bis Regulation or Article 1 European Insolvency Regulation (Regulation 1346/2000) with regard to a decision in a Dutch insolvency procedure; and
• the forth selected decision (Cour de Cassation, arrêt du 3 juin 2021) concerns a situation requiring to determine whether the Belgian lex fori is applicable for reasons of urgency and public policy if the content of the provisions of the foreign law (i.e. Nigerian law) regarding the Muslim custom of Djerma as a regime of separation of financial assets of a couple following divorce or repudiation cannot be clearly proven before the Belgian court given the evolutive nature of the practice.

In addition, a number of Court of Appeal decisions were selected. These concern:

• a decision by the Brussels Court of Appeal (arrêt du 3 février 2022) on a case involving a paternity dispute in which the father declared a child to be his own and the alleged conflict of the Guinean law that does not allow the mother to subsequently contest the paternity with Article 22bis of the Belgian Constitution which gives priority to the highest interest of the child and Article 62(1) of the Belgian Code of Private International Law regarding the consent of the child Belgian national who has her habitual residence in Belgium;
• two decisions of the Court of Appeal of Liege. One (arrêt du 22 juin 2021) regards the application of the Brussels II-bis Regulation, Rome II Regulation and Regulation on matrimonial Regimes on the law applicable and competence regarding a divorce procedure for two Belgian nationals who married in Turkey. The other (arrêt du 20 janvier 2021) concerns matters of parental responsibility involving the application of Brussels II-bis Regulation and the 1996 Hague Convention on parental responsibility and protection of children.

Together with these a number of first instance decisions were selected for the interesting issues that they raise related to recognition of marriages celebrated abroad, name status and rectification of a foreign certificate of birth, maintenance, and choice of jurisdiction clause with regard to Article 25 and 8 of the Brussels I-bis Regulation.

The last part of the review is dedicated to EU and national legislative developments. This issue addresses the Decision (EU) 2022/1206 concerning the accession of the European Union to the Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters (2019 Hague Judgments Convention), the Belgian Law putting into application the Regulation (EU) 2019/1111 on the on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and on international child abduction (recast), the Belgian Law of 20 July 2022 on the status and supervision of brokerage firms, and the European Commission Proposal of 7 December 2022 for a a Regulation on jurisdiction, applicable law, recognition of decisions and acceptance of authentic instruments in matters of parenthood and on the creation of a European Certificate of Parenthood (COM(2022)695 final).

One recent article on private international law was published today in International and Comparative Law Quarterly:

A Chong, “Characterisation and Choice of Law for Knowing Receipt”

Knowing receipt requires the satisfaction of disparate elements under English domestic law. Its characterisation under domestic law is also unsettled. These in turn affect the issues of characterisation and choice of law at the private international law level, as knowing receipt sits at the intersection of the laws of equity, restitution, wrongs and property. This article argues that under the common law knowing receipt ought to be considered as sui generis for choice of law purposes and governed by the law of closest connection to the claim. Where the Rome II Regulation applies, knowing receipt fits better within the tort rather than unjust enrichment category and the escape clause in Article 4(3) of the Regulation ought to apply.

 

 

La sustracción internacional de menores en el espacio jurídico europeo (International Child Abduction in the European Union), a monograh by PIL Assistant Professor Maria González Marimón (University of Valencia), has just been released by the Spanish publishing house Tirant Lo Blanch.

The book covers the landscape of sources in force the European Union, in an area characterized by the confluence of instruments of different origin and scope, some of which have recently undergone relevant changes.

It claims that a redefinition of the legal framework and of the interfaces among instruments is needed in order to adapt to new societal patterns as well as to currently prevailing values, in particular to the central role of children rights and to the principle of their best interests.

In addition, after a thorough, critical analysis of the novelties of Council Regulation (EU) 2019/1111 of 25 June 2019 on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and on international child abduction (recast) (Brussels II ter Regulation), it argues that the opportunity has been lost of getting rid of the “overriding mechanism” under Article 29 of said Regulation.

The author has kindly provided the following summary of the contents and main thesis of the book:

International child abduction provides a paradigmatic example of the complexity of cross-border cases involving children. The profound societal changes of recent decades (the consolidation of different family models, the preponderance of a children rights-centered approach to the detriment of a parents’ rights-centered paradigm) are prompting to rethink and to reshape the legal framework of child abduction.

The EU traditional response to international child abduction can indeed be described as a complicated and fragmented body of legal sources: judges and practitioners in the field needed (and need) to have in mind the EU rules on the matter together with those of the 1980 Hague Convention, and, punctually, also the 1996 Hague Convention. The EU legislator, aware of the complexity and practical difficulties of the Brussels II bis rules on international child abduction, has tried to improve and refine them in the recast Regulation of 2019 . The obvious first sign of improvement is the completely new Chapter III, focused on international child abduction. This shift in the structure of the Regulation is accompanied by a welcomed explanation of its relationship to the 1980 Hague Convention. Also regarding the return procedure, the Brussels II ter Regulation introduces some (albeit not far-reaching) developments for its functioning in practice.

A further group of rules in the new Regulation reflects the EU legislator’s  commitment to adapting international child abduction rules to new social realities while pushing the children’s rights to the forefront. In this regard, worth noting provisions are the ones related to the age of the child; to reinforcing the child’s right to express his or her views in return proceedings; to the new faculty granted to the courts to guarantee the contact of the child with the parent requesting return; to the promotion of the child’s “safe return”; or to fostering ADR mechanisms to solve the disputes.

In contrast to the progresses alluded to, the EU legislator has missed the opportunity to do away with the very much questioned so-called “overriding mechanism”. Following this special procedure, the last word in relation to the return of a wrongfully removed or retained child is given to the court having jurisdiction under the Regulation; its decision prevails over any non-return previous one adopted by the court of another Member State pursuant to Article 13 of the 1980 Hague Convention. In principle, this priority is reinforced by the elimination of the exequatur requirement, without any ground of refusal of the return decision.

To the extent the “overriding mechanism” has been a source of headaches for legal operators and practitioners, it was legitimate to claim it should be dropped, and regrettable that it has not. A comparison of the respective case law of the CJEU and the ECtHR adds relevance to the matter. In the event of exceptional circumstances questioning the convenience of enforcing the privileged decision (i.e., the one of the court competent according to the Regulation), the Luxembourg Court has reacted backing up the system. By contrast, the ECtHR’s case-law on international child abduction supports a more substantive approach by recalling the need to assess the best interests of the child concerned in each particular case.

The awareness of the Strasbourg case law had led to the conviction that, in order to achieve the European legal integration objective while simultaneously protecting each individual child, a model flexible and predictable at a time was of the essence. In this regard, abolishing the exequatur for all decisions on parental responsibility, but maintaining certain safeguards at the enforcement procedure so as to allow for the assessment of the best interests of the child in the individual case, would strike a delicate, but adequate, balance between the free movement of judgments and the best interests of each child.

In fact, this is precisely the subtle equilibrium reflected in the Brussels II ter Regulation. In spite of retaining the privileged regime for return decisions resulting from the “overriding mechanism”, the Regulation actually tries to temper one of its most controversial aspects identified in practice, namely the automatism of the model, which had proven too rigid. Two are the ways to this aim: first, the possibility of modification and revocation of the certificate; secondly, a new cause of suspension – and even refusal – of the enforcement, in the event of an exceptional change of circumstances linked to the best interest of the child.

The amendment of the old “overriding mechanism” has great relevance from the perspective of the debate between the elimination of exequatur, on the one hand, and the adequate protection of children’s fundamental rights and of the best interests of the child when enforcement is seized, on the other. The new Regulation gives room to the evaluation of the judge in the requested Member State. By doing so, it can be said that the EU legislator deconstructs the model of abolition of the exequatur “in absolute terms”. Still, despite its foreseeable advantages, the system is not free of doubts regarding its future application: divergent doctrinal and jurisprudence interpretations are to be expected; also, there is a risk of abuse in the practice of the already mentioned cause for suspension (or even refusal) at the enforcement stage.

In conclusion, notwithstanding the continuity of the “overriding mechanism”, and, we insist, the lost opportunity to do away with it, the new international child abduction rules strike a better balance in the allocation of competences between the Member State with competence on the substance of the matter and the Member State in which the child is wrongfully located. It equally achieves a better compromise in relation to the assumption of the principle of the best interests of the child, and the interplay between the child’s immediate return and its exceptions. We will see whether the new rules, coupled with the reinforcement of communication and cooperation between the authorities involved, lead to strengthen the climate of trust among the judiciary of the Member States, and, in the end, to a better protection of children in EU cross-border cases.

In Oxford University Innovation Ltd v Oxford Nanoimaging Ltd [2022] EWHC 3200 (Pat) Daniel Alexander KC in a lengthy judgment eventually held for the University in a dispute on the validity of the University’s contractual terms claiming intellectual property over research students’ work. The case is of interest to the blog in that it contrasts the consumer provisions in the ‘Brussels (conflict of laws) regime’ with those of substantive consumer law.

[8] The thrust of ONI’s case is that Oxford’s approach to allocation of the commercial fruits of research is unfair to DPhil students and, more particularly, unfair to Mr Jing, the young researcher, in the circumstances of the case. More specifically it is said that Oxford’s policies are unfairly weighted in favour of the University and senior academics, who may have contributed less to the detail of the work than more junior researchers or inventors.

Applicability or impact of consumer protection legislation on terms relating to intellectual property rights of students is core to the case. The Unfair Terms in Consumer Contracts Regulations 1999/2083 – UTCCR are derived from the European Directive on Unfair Terms in Consumer Contracts 93/13, the ‘Unfair Consumers Terms Directive’ UCTD, which is retained EU law and the CJEU authority on same is retained EU case law [240] . They only apply to contracts between a “consumer” and a “seller or supplier”. Was Mr Jing such a ‘consumer’?

UK courts regularly made recourse to Brussels  Convention and later Brussels Ia cases in the absence of much CJEU UCTD authority. The judge correctly holds [242] that one must be cautious with such approach pro inspiratio, as indeed I have also pointed out on this blog before, and discusses ia CJEU Benincasa, Gruber, Schrems, Milivojevic, albeit not CJEU Reliantco, and the UK cases of Standard Bank v Apostolakis, AMT Futures v Marzillier and Ang v Reliantco. In the discussion on whether the Brussels case-law has an impact on the UCTD, he refers ia to Weco Projects. [288] he points out that when later CJEU authority did interpret the term ‘consumer’ in the UCTD directly (eg Karel de Grote), it made fairly little reference to Brussels authority. [306] he decides the UCTD approach to ‘consumer’ is ‘more expansive’ and ‘not as strictly’ as under the Brussels regime and [310] rejects Oxford’s submission that it is necessarily the right approach to this case under the UCTD to adopt the framework of analysis of dual-purpose contracts of the Brussels Convention/Regulation case law. This also includes [320] a different approach to the burden of proof.

[410] the final conclusion is that a ‘DPhil student is normally entitled to be treated as a consumer under the UCTD and that it does not matter for this purpose whether the student is undertaking that educational qualification with a view to her career, profession and/or professional advancement’  and [425] that ‘Oxford has not shown that Mr Jing’s circumstances were such that it would be wrong to treat him as a consumer in entering into the DPhil Contract he did.’ However eventually [639] the terms were not judged to be ‘unfair’.

Many of the issues raised are new and one imagine permission to appeal may have been sought.

Geert.

EU private International Law, 3rd ed. 2021, 2.231 ff.

1/2 Interesting IPR, research students case
651 para judgment on terms re intellectual property which @UniofOxford, other universities may validly agree with degree students relating to the fruits of their work.
Refers ia to EU consumer protection law (unfair contract terms)

— Geert Van Calster (@GAVClaw) January 3, 2023

The French Committee of Private International Law has launched the 8th edition of the Committee’s Doctoral Dissertation Award.

Eligible PhD dissertations are those written in French and defended between 15 January 2022 and 7 January 2023.

The application procedure is explained here.

The deadline for submissions is 1 March 2023.

On Friday, January 20, 2023, the University of Strasbourg (France) will host a conference on the PIL aspects of the Digital Market Act (DMA) and the Digital Services Act (DSA), organized by Etienne Farnoux, Nicolas Gillet, Kansu Okyay and Delphine Porcheron.

The conference is structured in two parts. The first will be dedicated to general presentation of the new regulations. The second will address specific topics in private international law.

Full Programme:

14h00 : Propos Introductif
Delphine Porcheron, Maître de conférences à l’Université de Strasbourg – CDPF
et Etienne Farnoux, Professeur à l’Université de Strasbourg – DRES

1re session – Présentation générale des règlements et étude du conflit de lois
Présidence : Delphine Porcheron, Maître de conférences à l’Université de Strasbourg – CDPF

14h10 : Présentation du règlement DMA
Frédérique Berrod, Professeure à Sciences Po Strasbourg – CEIE

14h30 : Présentation du règlement DSA
Stéphanie Carre, Maître de conférences HDR à l’Université de Strasbourg – CEIPI

14h50 : Scope of the regulations and conflicts of laws
Tobias Lutzi, Professeur à l’Université de Augsburg

15h10 : Questions et échange avec la salle

15h30 : Pause

2e session – Les règlements et le contentieux
Présidence : Etienne Farnoux, Professeur à l’Université de Strasbourg – DRES

16h00 : Le contentieux devant les juridictions étatiques
Yves El Hage, Maître de conférences à l’Université Lyon 3 – CREDIP

16h20 : Les modes extrajudiciaires de règlement des litiges
Nurten Kansu Okyay, Maître de conférences contractuelle à l’Université de Strasbourg – CEIE

16h50 : Conclusions
Delphine Porcheron, Maître de conférences à l’Université de Strasbourg – CDPF
Etienne Farnoux, Professeur à l’Université de Strasbourg – DRES

17h00 : Clôture

The conference will be held both in site and online. The full program and details about the location and registration can be found here.

Le gestionnaire d’un réseau de distribution d’électricité doit être considéré comme un producteur au sens de l’article 3, paragraphe 1, de la directive 85/374/CEE du 25 juillet 1985, dès lors qu’il modifie le niveau de tension de l’électricité en vue de sa distribution au client final.

Sur la boutique Dalloz Les grands arrêts de la Cour de justice de l’Union européenne Voir la boutique Dalloz

en lire plus

Le 22 novembre 2022, la CEDH a condamné la Suisse pour ne pas avoir reconnu avant 2018 la filiation, établie en droit californien en 2011, entre un enfant né d’une GPA et son père d’intention, partenaire enregistré du père génétique. En étendant sa position bien établie aux couples d’hommes, la Cour envoie un message à l’ensemble des États parties.

Sur la boutique Dalloz Code civil 2023, annoté Voir la boutique Dalloz

en lire plus

In a post published on this blog in 2022, I addressed the relationship between private international law (PIL) and strategic climate change litigation, focusing on claims brought or supported by children and youth applicants. In those disputes, where plaintiffs are mostly seeking to hold States accountable for the violations of international and/or constitutional law, private international law was bound to have very little, if anything, to contribute.

However, in the same blog post, I also pointed at some developments in the “underworld” of climate change litigation, hinting to the emergence of new court strategies, whereby climate activists (not necessarily children or youth) direct their claims towards big transnational corporations, following in the footsteps of Milieudefensie et al. v. Royal Dutch Shell plc.

“Private” claims of this kind are bound to speak the language of PIL, at least in cases where a foreign element is involved.

Recent developments in the field of climate change litigation confirm this trend. The Four Islanders of Pari case borrows the ordinary tools of private law (tortious liability) in order to hold a foreign transnational corporation accountable for its overall CO2 emissions. This case is particularly interesting for two reasons. First, owing to its timing and the kind of damage alleged by the applicants, this case fits in a wider context of litigation, which is presently involving (or trying to involve) several international bodies and tribunals, thus evidencing a certain complementarity of action, or at least a commonality of end-goals, between private and public international law (A). Second, from the specific standpoint of PIL, this case differs from its predecessors (notably from Luciano Lliuya v. RWE AG) for being beyond the scope of application of EU PIL, the conflict of laws issues raised therein being governed by domestic (Swiss) PIL (B).

A. The Broader Context: the Courtroom Fight against Sea Level Rise.

It is probably not incorrect to read the Four Islanders of Pari case as one small piece of a bigger puzzle, consisting of a fully-fledged courtroom fight against sea level rise, ie one of the most immediate consequences of climate change. Unsurprisingly, this fight is presently carried out primarily by low-lying insular States and their inhabitants: owing to their specific conformation, these islands (mostly situated in the Pacific area) are particularly vulnerable to the short-term effects of climate-change on sea levels, which are exposing them to the risk of recurrent flooding, fresh water salinization and, eventually, (total or partial) disappearance by the year 2050, or sooner.

Against this backdrop, a group of small insular States (eventually supported by a group of like-minded States) have promoted, or is seeking to promote, initiatives before two major international tribunals. In October 2022, a group of States led by Vanuatu announced the preparation of a draft Resolution, intending to prompt the UN General Assembly to seek an advisory opinion from the ICJ “on the obligations of States in respect of climate change”.

The text of the Draft Resolution was circulated among all UN member States at the end of November 2022, with a view to putting it to a vote in early 2023. In parallel with these developments, on 12 December 2022, the Commission of Small Island States on Climate Change and International Law (representing Barbuda, Tuvalu and Palau) has submitted another request for an advisory Opinion to a different international tribunal, the ITLOS.

In both cases, the advisory Opinions seek to clarify the climate change-related legal obligations placed upon States by a rich body of public international law, including the UN Charter, the International Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights, the UN Framework Convention on Climate Change, the Paris Agreement, the UNCLOS, and rules of general international law, such as the duty of due diligence, the rights recognized in the Universal Declaration of Human Rights, the principle of prevention of significant harm to the environment. For evident reasons, a special emphasis is placed on the protection of the marine environment, on the specific vulnerability of Small Island developing States and on the interests of future generations.

Although non-binding, such advisory Opinions may entail authoritative statements of law with legal effects (see ITLOS, Maritime Delimitation in the Indian Ocean, paras. 202-205) and carry great legal weight and moral authority, thus contributing, in their way, to the elucidation and development of international law (ICJ). They could be, in particular, a preliminary step in the quest for greater accountability of international actors vis-à-vis the protection and the restoration of a viable (marine) environment.

Besides the actions undertaken directly by States, the inhabitants of small Pacific islands have been equally active before  judicial or quasi-judicial international bodies.

Among the first initiatives undertaken under the aegis of the International Covenant on Civil and Political Rights (ICCPR), there is a communication to the UN Human Rights Committee (UNCHR) filed in 2015 by a citizen of Kiribati. Claiming that climate change had turned its place of origin in an “untenable and violent environment” , which forced him and his family to migrate, the author of the Communication contested New Zealand’s decision to deny the refugee status. While unsuccessful on the merits (the UN Committee found the denial issued by New Zealand’s authorities was not clearly arbitrary and did not amount to a manifest error or a denial of justice), this initiative is still producing systemic effects for climate asylum-seekers worldwide (see, for example, a recent judgment of the Italian Court of Cassation, quoting the View adopted by the UNHRC).

More recently, a group of Islanders of the Torres Strait filed another Communication with the UNHRC, alleging the violation, by Australia, of a number of ICCPR provisions. They put forth, in particular, Australia’s failure to adopt adequate adaptation measures to protect their lives and way of life, their homes and their culture against the threats posed by sea level rise. In September 2022, the UNCHR found a violation of Article 17 (right to private and family life) and of Article 27 (protection of minorities) of the ICCPR. It ordered the respondent State to pay adequate compensation for the harm suffered by the plaintiffs and to conceive and implement effective measures to secure the communities’ continued safe existence on their respective islands, in meaningful consultations with the communities’ members.

Most interestingly for the readers of this blog, however, public international law has not been the only weapon brandished by the inhabitants of small island States in the fight against rising sea levels.

B. Quid Private International Law? The Four Islanders of Pari Case.

Within the framework of this broader effort to counter the effects of climate change, small State islanders have not neglected the “private side” of court litigation, ie the disputes between private entities before national (civil) courts.

In August 2022, four residents of the island of Pari (Indonesia) introduced a request for conciliation before the Justice of the Peace of the Canton of Zug (Switzerland). This is a preliminary step mandated by the Swiss Civil Procedure Code for pursuing a civil action (Article 198 Swiss CCP).

The claim is directed towards Holcim, a corporation established in Switzerland and specialized in cement-production activities. Holcim figures among the so-called Carbon Majors, ie the hundred or so companies that account for more than 70% of global greenhouse gas emissions since the dawn of the industrial age (see also here). More specifically, the plaintiffs are trying to establish a direct correlation between Holcim’s significant pro-rata contribution to such emissions (0.42% of global industrial CO2 emissions since 1750: source) and the adverse effects suffered by the local ecosystem on Pari Island. For these purposes, these plaintiffs are supported by a wide transnational networks of NGOs, whose alliances straddle the North-South divide [HEKS/EPER (Switzerland); ECCHR (Germany); Walhì (Indonesia)].

Reporting on this case is rather difficult, as no procedural documents have been made available to the general public yet. The analysis below is based on the information provided by the website dedicated to the case, which does not, however, provide for a comprehensive summary of the complaint. As mentioned above, this case is interesting for two main reasons: the type of relief sought by the claimants and the PIL issues raised therein.

The Claim and the Relief Sought

According to what we presently know about the case, four Indonesian claimants “are demanding justice on behalf of the island of Pari, which is facing imminent ruin, and are taking Holcim to court”. The income and subsistence of these plaintiffs is highly dependent on fishing and tourism, ie activities that are severely affected by the rise in sea levels, which has reached a 20 cm increase globally and which threatens the very existence of the island over the next 30 years (see here).

Holcim is asked, inter alia, to “provide proportional compensation for the climate-related damage the plaintiffs have already suffered in Pari Island”. The claim is therefore based, in all probability, on the general rule on civil liability, likely interpreted in the light of international human rights law. Claims of this kind, based on extra contractual liability or a general duty of care, are not new to climate change litigation against States (see, for example A Sud v Italy) or private corporations (Milieudefensie et al. v. Royal Dutch Shell plc or Luciano Lliuya v. RWE AG). However, according to the database of the Sabin Center for Climate Change Law, the Swiss case “is novel and unprecedented ” as it combines compensation (the Lliuya approach) and reduction of GHGs (the Milieudefensie approach).

In fact, in addition to the demand for compensation, the action brought by the four islanders of Pari seeks to compel Holcim to cut CO2 emissions by 43% by 2030, compared to 2019 figures (or to reduce their emission according to the recommendations of the climate science in order to limit global warming to 1.5°C) and to contribute towards adaptation measures on Pari Island. This reference to the 1.5° threshold (set by the Paris Agreement) is an obvious hint of that the case is partly based, or at least relies on, obligations defined by public international law. It thus evidences a certain “confluence” of public and private international law. This request for injunctive relief additionally serves to highlight the commonalities that exist between the Four Islanders of Pari case and the claims advanced by the litigation directed towards States in varied fora around the globe (see again this post).

The Applicable PIL Regime

While being the first case of this kind in Switzerland, the Four Islanders of Pari closely reminds of the German Luciano Lliuya v. RWE AG. Therein, a Peruvian farmer (supported by the NGO Germanwatch) is suing a German electricity company based on its estimated contribution to global industrial greenhouse gas emissions since the beginning of industrialization. These emissions, it is contended, have contributed to the melting of mountain glaciers near Huaraz, and to the correlated rise in the water level of a glacial lake located above his town. As a consequence, his property is currently threatened by floods.

There is, however, an important difference between the two cases. While Lliuya falls within the scope of application of the Brussels I bis and the Rome II Regulations, the Four Islanders of Pari will be entirely governed by the 1987 Swiss Act on PIL (SwAPIL). This vouches for some caution in assessing the translatability to the latter of the “lessons” thus far learned from the former.

The first lesson derivable from Lliuya is that establishing jurisdiction in this kind of cases is a relatively straightforward matter, based on the widely accepted principle of actor sequitur forum rei. Suing in the place of domicile of the defendant under Article 4 of the Brussels Ibis Regulation, as interpreted in Owusu, guarantees access to a (European) forum. The same conclusion seems to apply, prima facie, within the different framework of the SwAPIL. Its Article 2, which functionally corresponds to Article 4 of Regulation 1215/2012, does not enable the seized court to exercise any discretion in deciding whether or not to hear the case (see Goldwin p. 137, a contrario). Pragmatically, the fact that (economically disadvantaged) third state plaintiffs might be required to pay court fees or warranties in order to access the local forum should not be particularly problematic from the standpoint of the right to a court, in cases where litigation is supported by external funding through NGOs or by other means (eg crowdfunding).

The progression of Lliuya before German courts additionally shows that jurisdiction is particularly important as it indirectly determines the applicable procedural law, governing fundamental issues such as the admissibility of the action or the justiciability of the claim. Moreover, in cases like Lliuya or the Four Islanders of Pari, other procedural issues such as the burden of proof, the means and the standard of evidence will play a pivotal role in determining the chances of failure or of success of the action. This means that the choice of forum remains a cornerstone in the litigation strategy of climate change cross-border cases.

Concerning the applicable law, the SwAPIL does not provide for a specific conflict of law rule for environmental damage, along the lines of Article 7 Rome II. As well known, the latter sets out a policy-oriented rule of conflict empowering the person(s) seeking compensation for damage, who is given the choice between the law of the State where the event giving rise to the damage occurred and the law of the State in which the damage occured.

From the standpoint of PIL, the determination of the applicable law might indeed be the major point of contention in the Four Islanders of Pari case, in the light of the very different choice made in this respect by the Swiss legislator. Article 133 SwAPIL provides, at its 2nd paragraph, that where the parties to the dispute are not habitually resident in the same State, torts are governed by the law of the State where the tort was committed (l’État dans lequel l’acte illicite a été commis/das Recht des States…in dem die unerlaubte Handlung begangen worden ist/ il diritto dello Stato in cui l’atto è stato commesso). However, when “the result” occurred in another State, the law of such state applies if the tortfeasor should have foreseen that the result would have occurred there. (English translation provided by Dutoit, p. 595). Therefore, SwAPIL seems to contemplate the well-known alternative between place of the event giving rise to damage and place of the damage, similarly to EU PIL, but it does not confer any choice upon the alleged victim. Conversely, the foreseeability clause set out by the second part of Article 133 SwAPIL, 2nd paragraph, raises a new problem in terms of burden of proof, in relation to which Swiss legal scholarship is divided (Dutoit, p. 595-6).

Unfortunately, as the procedural documents of the Four Islanders of Pari case have not been made available online, it is impossible to properly assess the precise petitum and to determine whether, and to what extent, the tort alleged by the Islanders is Distanzdelikt, or even a ubiquitous tort. There are many factual elements that might be relevant in this respect, such as the place where Holcim is headquartered (as the place where the main decisions in terms of environmental sustainability and green policies are taken); the concrete places (likely scattered around the world) in which Holcim is undertaking its material production activities; and Indonesia, as the place where the specific damage alleged by the plaintiffs materialized (provided that this was foreseeable by Holcim). The possibility of triggering the escape clause under Article 15 SwAPIL must also be taken into account (ie. the application of the law of the State with which the case presents “a much closer” connection). It would be interesting to know whether, in concreto, the plaintiffs are pleading for the applicability of Swiss or a foreign law.

C. Conclusions and Future Trajectories

The Four Islanders of Pari case is still at its very initial stage and deserves to be monitored closely in the near future. Its very existence confirms, however, that private international law is becoming and will become increasingly important in strategic climate change litigation, when this is directed towards private companies such as the Carbon Majors. In a way, disputes of this kind may be seen as complementary to the initiatives undertaken under the aegis of public international law by particularly affected States. There is, in particular, a commonality of objectives, despite the obvious difference in both legal petita and remedies brought before national and international courts.

Another interesting lead to be followed in the future concerns the role played by PIL in cases brought by EU-based claimants against EU-based corporations, based on allegations of false or misleading advertisement. Cases of this kind, which are mushrooming throughout the world’s jurisdictions, may seem purely domestic at a first glance. However, the fact that plaintiff and defendant are, in most cases, domiciled/established in the same State does not exclude, as such, the possibility that the “affected market” may extend beyond national borders, especially where the defendant is a big transnational corporations operating worldwide.

An example of such cases might be the recent FossielVrij NL v. KLM, where a group of environmental organizations is suing (in the Netherlands) the national airline KLM, owing to its ‘Fly Responsibly’ advertisement campaign (which is based on allegedly false claims of “climate neutrality” or “CO2ZERO”).

The (unofficial English translation of the) application is regrettably very concise as concerns the reasoning on jurisdiction and (especially) applicable law. It merely states  that “since both [the applicant] and KLM have their registered offices in the Netherlands, the Dutch court is competent to take cognizance of this dispute. As a result, Dutch law will also apply to the claims of Fossil Free against the defendant”.

While acknowledging, in the application, the wide reach of the Fly Responsibly campaign (here, § 179 : “The campaign will be rolled out worldwide on 13 December in a number of vital, fast-growing markets, the UK, Norway, Sweden, Germany, the US, Canada, Brazil and China”), implemented through TV ads, physical ads at Schiphol Airport, online “banner” ads on KLM websites, marketing emails and targeted ads on social media platforms (here, § 183), the application does not elaborate further on the relationship between the specific claim, the Rome II Regulation and the several options opened under its Article 6.

Cases of this kind also deserve to be closely followed by the private international lawyer.

L’année 2022 se sera achevée dans un grand tintamarre médiatique sur la déroute européenne d’un célèbre polémiste français récemment devenue homme politique, mais les mois de novembre et décembre auront été marqués par des arrêts et décisions de plus grande importance. Ainsi une grande chambre s’est-elle prononcée par deux fois sur l’extradition vers des États où sont infligées des peines de réclusion perpétuelle incompressible, et une autre fois sur un aménagement de la jurisprudence relative aux lois rétroactives destiné à renforcer la lutte contre la grande fraude fiscale. L’hébergement d’urgence des personnes sans abri, l’alimentation forcée des grévistes de la faim, l’avortement et la contraception forcés des pensionnaires d’un établissement psychiatrique, le régime du réexamen après un arrêt définitif de la Cour européenne des droits de l’homme, la justification d’un licenciement par des données kilométriques relevées par GPS, la violation d’une clause de neutralité religieuse par une famille d’accueil, une discrimination fondée sur la taille, une discrimination résultant d’un âge légal de départ à la retraite plus précoce pour les femmes que pour les hommes, les interférences entre le droit national et le droit de l’Union européenne notamment en matière de pêche illicite ou encore le recours à la gestation pour autrui par le couple composé de deux hommes se détachent d’une actualité bimestrielle particulièrement riche.

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Les étrangers qui résidaient en Ukraine lors de l’invasion russe sans disposer d’un titre de séjour permanent ne bénéficient pas automatiquement de la protection temporaire en France, juge le Conseil d’État.

Sur la boutique Dalloz Code de l’entrée et du séjour des étrangers et du droit d’asile 2023, annoté et commenté Voir la boutique Dalloz

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