Agrégateur de flux

I have an article forthcoming on the application of Rome II’s Article 7, ‘environmental damage’ rule. Last week’s widely reported first instance ruling in the Dutch Shell climate case will of course now feature.

I reported on application of A7 in Begum v Maran. There I submit, the Court of Appeal engaged without sufficient depth with the Article. It held against its application. Xandra Kramer and Ekaterina Pannebakker then alerted us to the use of Article 7 in last week’s momentous Milieudefensie v Shell (umpteen) ruling [Dutch version here, English version here], in which Shell by a first instance judge has been ordered to reduce its CO2 emissions. In that ruling, too, the judges leave a lot of issues on Rome II underanalysed. The conclusion  however goes in the opposite direction: the court held A7 is engaged and leads to Dutch law as the lex loci delicti commissi (Handlungsort or ldc).

I have taken the Dutch version of the judgment as the basis for the analysis for the English version is a touch under par when it comes to the finer detail. The Dutch version it has to be said is not entirely clear either on the conflict of laws analysis.

Firstly, Milieudefensie argue that A7 is engaged, and it suggests it opts for Dutch law given the choice left to it by that Article. Whether it does so as lex loci damni (Erfolgort or ld) or lex loci delicti commissi is not specified. It is reported by the courts that in subsidiary fashion Milieudefensie argue that per A4(1)’s general rule, Dutch law is the lex causae: that has to be Erfolgort.  (Lest the court inaccurately reported parties’ submissions here and the argument made under A4 focused on Article 4(3)’s displacement rule) [4.3.1].

The judges further report [4.3.2] that parties were in agreement that climate change, whether dangerous or otherwise, due to CO2 emissions constitutes ‘environmental damage’ in the sense of A7 Rome II (and the judges agree) and that they were in disagreement on the locus delicti commissi. Milieudefensie argue that Shell’s holding policy viz climate change and emissions, dictated from its corporate home of The Netherlands, is that Handlungsort. Shell argue that the place of the actual emissions are the Handlungsorts (plural), hence a Mozaik of applicable laws. (This nota bene has interesting applications in competition law, as I suggest here).

Then follows a rather sloppy reference to Jan von Hein’s note bene excellent review of Article 7 in Calliess; distinguishing of the arguments made by Shell with reference to ia product liability cases; and eventually, with reference to ia the cluster effect of emissions (‘every contribution towards a reduction of CO2 emissions may be of importance’ [4.3.5]) and the exceptional, policy driven nature of A7, the conclusion [4.3.6] that the holding policy is an independent cause of the CO2 emissions and hence imminent climate damage and obiter [4.3.7] that A4(1) would have led to the same conclusion.

The ruling will of course be appealed. It would be good to get the application of Article 7 right, seeing as environmental law is a core part of strategic and public interest litigation.

Geert.

EU Private International Law, 3rd. ed. 2021, Chapter 4, Heading 4.6.3 (4.54 ff).

Jurisdiction is a fundamental aspect of Nigerian procedural law. In Nigerian judicial parlance, we have become accustomed to the principle that the issue of jurisdiction can be raised at any time, even at the Nigerian Supreme Court – the highest court of the land – for the first time.[1] The concept of jurisdiction in Nigerian conflict of laws (often called “territorial jurisdiction” by many Nigerian judges) is the most confusing aspect of Nigerian conflict of laws. This is because the decisions are inconsistent and not clear or precise. The purpose of this write up is to briefly highlight the confusion on the concept of jurisdiction in Nigerian conflict of laws through the lens of a very recently reported case (reported last week) of Attorney General of Yobe State v Maska & Anor. (“Maska”).[2]

In Maska the 1st claimant/respondent instituted an action for summary judgment against the defendant/appellant and the 2nd respondent at the High Court of Katsina State for breach of contract. The 1st claimant/respondent alleged that the defendant/appellant purchased some trucks of maize from the 1st claimant/respondent and promised to pay for it. The 1st claimant/respondent also alleged that the defendant/appellant failed to pay for the goods, which resulted in the present action. It was undisputed that the place of delivery (or performance) was in Kastina State, the 1st claimant/respondent’s place of business, where the defendant/appellant took delivery of the goods. However, the defendant/appellant challenged the jurisdiction of the Kastina State High Court to hear the case on the basis that the contract in issue was concluded in Yobe State, where  it claimed the cause of action arose, which it argued was outside the jurisdiction of Kastina State. On this basis the defendant/appellant argued that the court of Yobe State had exclusive jurisdiction.

The High Court of Kastina State assumed jurisdiction and rejected the argument of the defendant/appellant. The defendant/appellant appealed but it was not successful. The Court of Appeal held that the concept of territorial jurisdiction for breach of contract is based on any or a combination of the following three factors – (a) where the contract was made (lex loci contractus); (b) where the contract is to be performed (lex loci loci solutions);.and (c) where the defendant resides. In the instant case, the place of performance – particularly the place of delivery – was in Kastina State – so the High Court of Kastina State could assume jurisdiction in this case.[3]

Maska adds to the confusion on the concept of jurisdiction in Nigerian conflict of laws. In Maska, the focus was on what it labeled as “territorial jurisdiction for breach of contract” in inter-state matters. In international and inter-state matters, Nigerian judges apply at least four approaches in determining whether or not to assume jurisdiction in cases concerned with conflict of laws.

First, some Nigerian judges apply the traditional common law rules on private international law to determine issues of jurisdiction.[4] This approach is based as of right on the residence and/or submission of the defendant to the jurisdiction of the Nigerian court. Where the defendant is resident in a foreign country and does not submit to the jurisdiction of the Nigerian court, then leave of court is required in accordance with the relevant civil procedure rules to bring a foreign defendant before the Nigerian Court. This is all subject to the principle of forum non conveniens – the appropriate forum where the action should be brought in the interest of the parties and the ends of justice. In Maska, the common law approach of private international law was not applied. If it was applied the High Court of Kastina State would not have had jurisdiction as of right because the defendant/appellant was neither resident in Kastina State nor submitted to the jurisdiction of the Kastina State High Court. In recent times, the common law approach to conflict of laws appears to be witnessing a steady decline among Nigerian appellate judges except for Abiru JCA (a Nigerian Court of Appeal judge) who has vehemently supported this approach by submitting that the concept of territorial jurisdiction in Nigeria is one of the misunderstood concepts of Nigerian conflict of laws.[5]

Second, some Nigerian judges apply choice of venue rules to determine conflict of law rules on jurisdiction.[6] This is wrong. Indeed, some Nigerian judges have rightly held that choice of venue rules are not supposed to be used to determine matters of jurisdiction in Nigerian conflict of laws.[7] Choice of venue rules are used to determine which judicial division within a State (in the case of the State High Court) or judicial division within the Nigerian Federation (in the case of the Federal High Court) has jurisdiction. Choice of venue rules are mainly utilised for geographical and administrative convenience. Unfortunately, it appears that in Maska choice of venue rules were utilised to determine the jurisdiction of the Kastina State High Court in matters of conflict of laws. Order 10 rule 3 of the Kastina State High Court Civil Procedure Rules provides that all suits for breach of contract “shall be commenced and determined in the Judicial Division in which such contract ought to have been performed or in which the defendant resides or carries on business.” Although Maska did not explicitly refer to Order 10 rule 3, it referred to some  previous decisions of Nigerian appellate judges that were influenced by choice of venue rules to determine which court has jurisdiction in matters of conflict of laws.[8] Maska makes the confusion more problematic because it did not cite the wrong choice of venue rules in question (Order 10 rule 3 of the Kastina State High Court Civil Procedure Rules) but wrongly created the impression that this represents the position on Nigerian conflict of laws on jurisdiction.

Third, some Nigerian judges apply the strict territorial jurisdiction approach.[9] This approach is that a Nigerian court cannot assume jurisdiction where the cause of action arose in one State, or another foreign country. I label this approach as “strict” because my understanding of the Nigerian Supreme Court decisions on this point is that based on constitutional law a Nigerian court is confined to matters that arose within its territory, so that one State High Court cannot assume jurisdiction over a matter that occurs within another territory. This approach is also wrong as it ignores the principles of traditional Nigerian common law conflict of laws. It also leads to injustice and unduly circumscribes the jurisdiction of the Nigerian court, which ultimately makes Nigerian courts inaccessible and unattractive for litigation. Nigerian courts should have jurisdiction as of right once a defendant is resident or submits to the jurisdiction of the Nigerian court. In Maska, even if the strict territorial jurisdiction approach was applied, the Kastina State High Court would probably have jurisdiction because the cause of action for breach of contract arose in Kastina State where the defendant/appellant took delivery of the goods.

Fourth some Nigerian judges apply the mild territorial jurisdiction approach.[10] This approach softens the strict territorial jurisdiction approach. This is an approach that has mainly been applied by the Nigerian Court of Appeal probably as a way of ameliorating the injustice of the strict territorial approach applied in some Nigerian Supreme Court decisions. This approach is that more than one court can have jurisdiction in matters of conflict of laws where the cause of action is connected to such States. With this approach, all the plaintiff needs to do is to tailor its claim to show that the cause of action is also connected to its claim. The danger with this approach is that it can lead to forum shopping and unpredictability – the plaintiff can raise the slightest grounds on why the cause of action is connected with its case to institute the action in any court of the Nigerian federation.  The mild territorial jurisdiction approach was applied in Maska because the Court of Appeal held either the Kastina State High Court or Yobe State High Court could assume jurisdiction as the cause of action was connected with both of them.

In conclusion, in very recent times the Nigerian traditional common law principle of conflict of laws (based on English common law conflict of laws without EU influences) on jurisdiction is beginning to witness a steady decline among Nigerian judges and lawyers. The concept of strict territorial jurisdiction, mild territorial jurisdiction, and choice of venue rules appears to be the current norm despite criticism from some Nigerian academics and even a Court of Appeal judge (Justice Abiru).[11] Maska is just another case that demonstrates why the principle of private international law should feature more in the parlance of Nigerian lawyers and judges. I have argued for judicial decisions and academic works in private international law in Africa to be intellectually independent and creative. This means that in Nigeria we should not blindly follow English common law rules. It could be that the common law approach might be an inadequate basis of jurisdiction for Nigerian private international law especially in inter-state matters.  For example in Maska, if the Kastina State High Court had applied the common law private international law rules, it would not have had jurisdiction despite being the place of performance, since the defendant was neither resident nor submitted to the jurisdiction of the court! Should there be a reformulation of the principle of jurisdiction in Nigerian conflict of laws in international and inter-state matters so that it is clear, consistent and predictable? This is a discussion for another day.

[1]Madukolu v Nkemdilim ( 1962) 2 SCNLR 341; Drexel Energy and Natural Resources Ltd v Trans International Bank Ltd ( 2008 ) 18 NWLR (Pt. 1119) 388, 424 – 27, 437 – 38 Dangote General Textiles Products Ltd v Hascon Associates (Nig) Ltd ( 2013 ) 16 NWLR (Pt. 1379) 60, 91; B Apugo & Sons Ltd v Orthopaedic Hospitals Management Board ( 2016 ) 13 NWLR 206, 240. In principle, what can be raised for the first time on appeal is procedural jurisdiction and not substantive jurisdiction as prescribed by the Constitution or enabling statute. This is a point that has been stressed by Abiru JCA in recent cases such as Khalid v Ismail ( 2013 ) LPELR-22325 (CA); Alhaji Hassan Khalid v Al-Nasim Travels & Tours Ltd ( 2014 ) LPELR-22331 (CA) 23 – 25 ; Nigerian National Petroleum Corporation v Zaria ( 2014 ) LPELR-22362 (CA) 58 – 60; Obasanjo Farms (Nig) Ltd v Muhammad ( 2016 ) LPELR-40199 (CA).

[2](2021) 7 NWLR (Pt. 1776) 535.

[3] Attorney General of Yobe State v Maska & Ano (2021) 7 NWLR (Pt. 1776) 535, 548-9.

[4]See generally British Bata Shoe Co v Melikan (1956) SCNLR 321; Nigerian Ports Authority v Panalpina World Transport (Nig) Ltd (1973) 1 ALR Comm 146, 172;  Muhammed v Ajingi  (2013) LPELR-20372 (CA);  Barzasi v Visinoni (1973) NCLR 373.

[5]Muhammed v Ajingi  (2013) LPELR-20372 (CA) 23-5; Foreword to CSA Okoli and RF Oppong, Private International Law in Nigeria (1st edition, Hart, Oxford, 2020); ‘The Concept of Territorial Jurisdiction’ in IO Smith (ed), Law and Developments in Nigeria: Essays in Honour of Alhaji Femi Okunnu, SAN, CON ( Ecowatch Publications (Nig) Ltd , 2004).

[6]See generally the Supreme Court cases of; Dangote General Textiles Products Ltd v Hascon Associates (Nig) Ltd (2013) 16 NWLR (Pt. 1379) 60; First Bank of Nigeria Plc v Kayode Abraham (2008) 18 NWLR (Pt. 1118) 172; Arjay Ltd v Airline Management Support Ltd (2003) 7 NWLR (Pt. 820) 57.

[7]British Bata Shoe Co v Melikian (1956 ) SCNLR 321, 325 – 26, 328; Muhammed v Ajingi (2013) LPELR-20372 (CA);  Zabusky v Israeli Aircraft Industries (2008) 2 NWLR (Pt. 109) 109, 133-6;  Ogunsola v All Nigeria Peoples Party (2003) 9 NWLR (Pt. 826) 462, 480

[8]A.-G. Abia State v. Phoenix Environmental Services Nig. Ltd (2015) LPELR-25702

[9] See the Supreme Court cases of Capital Bancorp Ltd v Shelter Savings and Loans Ltd (2007) 3 NWLR 148; Dairo v Union Bank of Nigeria Plc (2007) 16 NWLR (Pt 1059) 99; Mailantarki v Tongo & Ors (2017) LPELR-42467; Audu v. APC & Ors (2019) LPELR – 48134.

[10]Sarki v Sarki & Ors (2021) LPELR – 52659 (CA).; Onyiaorah v Onyiaorah (2019) LPELR-47092 (CA).

[11]See generally Abiru JCA in Muhammed v Ajingi  (2013) LPELR-20372 (CA) 23 – 25, 25 – 26;  CSA Okoli and RF Oppong, Private International Law in Nigeria (1st edition, Hart, Oxford, 2020) 95-103; AO Yekini, “Comparative Choice of Jurisdiction Rules in Cases having a Foreign Element: are there any Lessons for Nigerian Courts?” (2013) 39 Commonwealth Law Bulletin 333; Bamodu O., “In Personam Jurisdiction: An Overlooked Concept in Recent Nigerian Jurisprudence” (2011) 7 Journal of Private International Law 273.

On 11 May 2021, the Juzgado de lo Mercantil nr. 17 of Madrid has submitted a request for a preliminary ruling to the Court of Justice of the European Union (CJEU) on the interpretation of Articles 101 and 102 TFUE, on the one hand, and of Articles 45, 49, 56 and 63 TFUE, on the other, in the frame of a declaratory claim filed on behalf of European Superleague Company S.L. on 19 April 2021. Readers may recall that inaudita alter parte interim measures were granted the next day.

The Juzgado refers now six questions to the CJEU – maybe a bit over the threshold which separates interpreting EU law and applying it to the case at hand. In a nutshell, the Spanish court is asking whether specific provisions in the bylaws of UEFA and FIFA fall under the prohibition of either Article 101 or Article 102, or both. In case of an affirmative answer regarding the former, the court asks whether the exception in para 3 of Article 101 could nevertheless apply. In case of a positive answer vis à vis Article 102, the equivalent question is whether such a restriction could benefit from an objective justification. In addition, the referring court is asking about the compatibility between the prior authorization FIFA and UEFA require for the establishment of a pan-European club competition, and the free movement of persons, services and capital.

While waiting for the request to be available at the website of the CJEU, I have made the following translation (questions one and two are practically identical in Spanish; I changed a little bit the wording in an attempt to make them more intelligible):

1. Must Article 102 TFEU be interpreted as prohibiting FIFA and UEFA, which have conferred upon themselves an exclusive competence to organize or authorize international club competitions in Europe, an abuse of a dominant position consisting in imposing in their Statutes ( in particular, articles 22 and 71 to 73 of the FIFA Statutes, articles 49 and 51 of the UEFA Statutes, and any similar article contained in the statutes of member associations and national leagues) any third party entity wishing to establish a new pan-European club competition such as the Super League the need to obtain prior authorization, in particular as there is no regulated procedure based on objective, transparent and non-discriminatory criteria, and taking into account the possible conflict of interests that would affect FIFA and UEFA?
2. Must Article 101 TFEU be interpreted as meaning it prohibits FIFA and UEFA, which have granted themselves exclusive competence to organise or authorise international competitions in Europe, to require in their statutes (in particular Articles 22 and 71 to 73 of FIFA’s statutes, Articles 49 and 51 of UEFA’s statutes, and any similar article in the statutes of member associations and national leagues) their prior authorisation for any third party entity to establish a pan-European club competition, such as that at issue in the main proceedings, in particular as there is no regulated procedure thereto based on objective and non-discriminatory criteria, and taking into account the possible conflict of interest that would affect FIFA and UEFA?.
3. Should articles 101 and / or 102 TFEU be interpreted as meaning that they prevent FIFA, UEFA, their member associations and / or national leagues, to threaten with sanctions the clubs participating in the Super League, and / or its players, in light of the deterrence effect such threats can generate? In case sanctions for exclusion from competitions or the prohibition to participate in national team matches are adopted, would they, without being based on objective, transparent and non-discriminatory criteria, constitute a violation of Articles 101 and / or 102 of the TFEU?
4. Are Articles 101 and/or 102 TFEU to be interpreted as incompatible with Articles 67 and 68 of the FIFA Statute, in so far as the latter identify UEFA and its national federations as ‘original holders of all rights arising from competitions… within their respective jurisdiction’, thus depriving participating clubs and any alternative competition organiser of the original ownership of said rights, and assuming the exclusive responsibility for their marketing?
5. If FIFA and UEFA, as entities entrusted with exclusive competence to organise and authorise international football clubs competition in Europe, prohibit or oppose, on the basis of the abovementioned provisions of their statutes, the development of the Super League, must Article 101 TFEU be interpreted as meaning that those restrictions on competition benefit from the exception it provides for, considering that: production is substantially limited, alternative products to those offered by FIFA / UEFA in the market is prevented, and innovation is restricted in that other formats and modalities are prevented, thus potential competition in the market is removed and consumer choices limited? Would such a restriction have an objective justification, so that it could be concluded that there is no abuse of a dominant position within the meaning of Article 102 TFEU?
6. Are Articles 45, 49, 56 and/or 63 TFEU to be interpreted as meaning that a provision such as that contained in the FIFA and UEFA Statutes (in particular under Articles 22 and 71 to 73 of the FIFA statutes, Articles 49 and 51 of the UEFA Statutes and any other similar article contained in the statutes of associations belonging to national leagues) constitutes a restriction of one of the fundamental freedoms enshrined in those provisions, in that it requires prior authorisation of those entities for an economic operator of a Member State to establish a pan-European competition?

The Auto (Order) is available in Spanish here. I would also like to draw attention to the post of 22 April 2021, by Dwayne Bach, in the Kluwer Competition Law Blog, where he makes a first assessment of the situation under EU competition law.

Selon l’avocat général, une entreprise de l’Union européenne cherchant à résilier une relation contractuelle s’inscrivant dans la durée avec une entité iranienne visée par les sanctions américaines doit démontrer que sa décision n’est pas motivée par le souhait de respecter ces sanctions.

en lire plus

The Department of Juridical Sciences of the University of Bologna, Ravenna Campus, has organized a Summer School on Transnational Jurisdiction: Current Issues In Civil And Commercial Matters, to be held in Ravenna (and online), on July 19-23, 2021.

The Faculty of the Summer School is composed of experts from different jurisdictions, focusing on several aspects of private international and procedural law. The Director of the School is Prof. Michele Angelo Lupoi, who teaches Civil Procedural Law and European Judicial Cooperation at the University of Bologna. The Summer School is aimed at law students as well as law graduates and law practitioners who want to obtain a specialised knowledge in this complex and fascinating area of International civil procedure. The lectures, if the conditions will make it possible, will be held in a blended way, both
in presence and online.

The pre-registration form and the program of the Summer School may be downloaded from this link.

Registration is open until 2 July 2021. The registration fee is 200,00 €. The Bar Association of Ravenna will grant 20 formative credits to lawyers who participate in the Summer School.

The European Association for Family and Succession Law is organizing an international Conference on Minor’s Right to information in EU civil cases: Improving children’s right to information in cross-border civil cases.

The online Conference will take place via Zoom on Thursday, 17th June 2021 (3.00-6.00 pm CEST) and on Friday, 18th June 2021 (10.00 am-6.00 pm CEST). Here is the full programme of the event. Participation is free, online registration is necessary to receive via email the link to the Zoom meeting. The link will be sent shortly before the conference.

The online Conference will present the main results of the EU co-funded research project “MiRI” (“Minor’s Right to Information in civil actions – Improving children’s right to information in cross-border civil cases”, Justice Programme 2014-2020, JUST-JCOO-AG-2018, GA 831608).

Le manquement de l'employeur à son obligation de proposer à la salariée qui reprend son activité à l'issue d'un congé de maternité l'entretien professionnel prévu à l'article L 1225-27 du code du travail est-il susceptible, à lui seul, d'entraîner la nullité du licenciement en ce qu'il constitue une méconnaissance de l'une des protections visées à l'article L 1235-3-1, 6°, du même code ?

The Latin American Section of the Société de législation comparée, together with the Institute of Public Law of Brasilia, is organizing a series of webinars on the International Commission on Civil Status (ICCS, in French Commission internationale de l’état civil (CIEC)). The webinars will take place on 1, 8 and 15 June 2021 at 9 am (Brasilia time), 2 pm (CEST time) in English.

Programme

1st June – Presentation of the International Commission on Civil Status (ICCS)

Opening: Pr. Francisco Schertel – Dean of the Law Faculty, IDP and Pr. Maria Rosa Loula – Professor at IDP

Introduction: Mrs. Jeannine Dennewald – President of the ICCS

Developments: Mr. Nicolas Nord – Secretary General of the ICCS and Ms. Camille Reitzer – Deputy Secretary General of the ICCS

Discussions: Mr. Homero Andretta Junior, Director of the International Affairs Department at the Attorney General’s Office

Moderators: Prs. Maria Rosa Loula

June 8 – The normative instruments of the ICCS – circulation of acts and decisions

Introduction: Mr. Nicolas Nord – Secretary General of the ICCS

Developments: Ms. Camille Reitzer – Deputy Secretary General of the ICCS

Discussions:  Mrs. Chloé Hubart – Chloé Falisse and Margot Bruyninckx, representative of the Belgium Federal Justice Service; Mr. Michel Montini – representative of the Swiss Federal Civil Status Office

Moderator: Mrs.  Maria Rosa Loula – Professor at IDP

June 15 – The normative instruments of the ICCS – State cooperation in matters of civil status and harmonization of personal and family law 

Introduction: Mr. Nicolas Nord – Secretary General of the ICCS

Developments: Ms. Camille Reitzer – Deputy Secretary General of the ICCS

Discussions:  Mrs. Nadia de Araujo, Professor at Rio de Janeiro Catholic University ; Mrs. Chloé Falisse and Margot Bruyninckx – representative of the Belgium Federal Justice Service; Representative of the Spanish Ministry of Justice

Moderator: Mrs.  Maria Rosa Loula – Professor at IDP

The event will be livestreamed in English only

Free registration: https://www.idp.edu.br/eventos/the-international-commission-on-civil-status-base-of-international-cooperation-in-the-field-of-civil/

The Assas International Law Review (Revue de droit international d’Assas) is an online journal published once a year by the doctoral school of the University. It features articles on public and private international law written by professors and doctoral students.

The main theme of the 2020 issue is climate change and international law. The issue features ten articles on this topic. It also includes short articles summarizing the doctoral theses recently defended at the University and three more articles on various topics.

Of particular note for private international law scholars is an article written by Eduardo Alvarez-Armas (Brunel Law School) on Climate change litigation and Article 17 Rome II (Le contentieux international privé en matière de changement climatique à l’épreuve de l’article 17 du règlement Rome II : enjeux et perspectives). The author has kindly provided the following abstract:

The article is the first instalment in a series of three pieces of work on the interplay between climate change matters and private international law. It sketches, as a first approximation, the role that the EU’s private international instruments may play in “private international” climate change litigation, which could be roughly defined as litigation: i) amongst private parties; ii) of a private-law (generally, tort-law) nature; iii) conducted on the basis of private-international-law foundations; iii) over damage threatened or caused by climate-change-derived phenomena.

After some general/introductory considerations, the article explores a selection of difficulties that may arise in climate change litigation from the interplay between Article 7 of the Rome II Regulation (the EU’s choice-of-law provision on the law applicable to non-contractual obligations arising from environmental damage) and Article 17 Rome II, a general provision on “Rules of safety and conduct”, which establishes that “[i]n assessing the conduct of the person claimed to be liable, account shall be taken, as a matter of fact and in so far as is appropriate, of the rules of safety and conduct which were in force at the place and time of the event giving rise to the liability”. In order to conduct its assessment, the article uses as an illustration Lliuya v. RWE (a case currently pending before German courts which, irrespective of its ultimate outcome, is prone to become a milestone) and builds a hypothetical model thereon. The model analyses the said Art. 7-Art. 17 interplay in practice, when further confronted with EU rules on international jurisdiction and domestic rules of public law and/or administrative authorizations/permits, depicting a concerning landscape in terms of climate action and environmental protection.

As this is a piece on “enjeux et perspectives”, it presents a first set of conclusions, amongst which, notably, that the “ordinary” use (literal interpretation and mandatory application) of Article 17 of the Rome II Regulation (which seems to be “pro-polluter”) is incompatible with the polluter-pays and favor laesi principles, and needs to be blocked in “private international” climate-change litigation (and possibly in all instances of “private international” environmental litigation).

This “introductory” article will be followed by two further pieces of work. The first one will take a “micro” perspective and provide a further analysis (in English) of the referred Art. 7-Art. 17 interplay. The second one (in English too) is a contribution to the collective research project “The Private Side of Transforming the World – UN Sustainable Development Goals 2030 and the Role of Private International Law”, led by Ralf Michaels, Verónica Ruíz Abou-Nigm, and Hans van Loon. It will explore the overall intersection between private international law and climate change matters from a “macro” perspective, by addressing the contribution that private international law may make to the United Nation’s “Sustainable Development Goal” 13: “Take urgent action to combat climate change and its impacts”.

The International Commercial Chamber of the Court of Appeal of Paris (France) delivered on 25 May 2021 a judgment on International jurisdiction under Brussels I bis (ICCP-CA RG 20/12522).

Here is the official translation of the résumé of the decision: “The CCIP-CA had to rule on an appeal on the jurisdiction of an action for damages brought by a French company against a German certifying company (and its German insurer), based on an alleged tort from the latter producing certificates of conformity in the context of a contract with the manufacturer of the boxes necessary for the operation of photovoltaic panels.

The Court upheld the decision of the Court of first instance which ruled for the international jurisdiction of the French courts under Article 7 § 2 of the Brussels I Regulation (Recast) , which allows a person domiciled in a Member State to be sued “in matters relating to tort, delict or quasi-delict, in the courts of the place where the harmful event occurred or may occur “, and ruled out the question for a preliminary ruling by the CJEU.

The Court found, relying on the case law of the CJEU (§ 43 to 53) that the boxes of the photovoltaic panels had been installed on proprieties located in France and that the repair work resulting from the defect noticed had also been done on these facilities located in France. It considered that the installer company and its subrogated insurer were therefore “direct victims due to the normal use of panels” and that the place of occurrence of the initial damage was located in France (§ 55 to 60). However, considering that Article 7 point 2 of the Brussels I Regulation (recast) was intended to directly designate the competent court without referring to the internal rules of the Member States, which are therefore not practical, the Court held that each judicial court in the jurisdiction in which the contentious facility was located must have authority to hear this action (§ 61 et seq.)”.

The decision is not yet available. However, it is likely it will be in a few days (check the following link).

Source: https://www.cours-appel.justice.fr/paris/25052021-ccip-ca-rg-2012522-competence-juridictionnelle-internationale-international

On Monday 24 May 2021, Niger acceded to the Hague Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption, which will enter into force for this country on 1 September 2021.

Source: https://www.hcch.net/en/news-archive/details/?varevent=801

Non lieu à renvoi

Procédure civile

Concurrence déloyale ou illicite

Contrat de travail, exécution