Agrégateur de flux

Assurances - règles générales

Assurances - règles générales

From the publisher’ site:

 

About Climate Change Litigation This book investigates and discusses the respective issues arising in the current discourse on climate protection from different legal perspectives (including international law, European law and national public and civil law). In particular, it addresses the issue of “climate protection by courts”.

It gives an overview of important jurisdictions in the field of climate change litigation, including the US, Canada, Australia, the UK, France, the Netherlands, Italy, Brazil and Germany.

The handbook provides answers and ideas both to scholars and practitioners in the field. Furthermore, it is guaranteed to provide an overview of the latest news in cases and progress in the field of climate change litigation.

Table Of Contents Summary of Contents
INTRODUCTION
CLIMATE CHANGE AS A CHALLENGE FOR GLOBAL GOVERNANCE, COURTS AND HUMAN RIGHTS (Voigt)
PART 1
FUNDAMENTAL QUESTIONS
A. Liability for climate damages, sustainability and environmental justice (Kloepfer/Neugärtner)
B. Climate damages and the ‘Polluter Pays’ Principle (Rehbinder)
C. The role of courts in climate protection and the separation of powers (Payandeh)
D. Climate change and duties to protect with regard to fundamental rights (Gross)

PART 2
PROCEDURAL ISSUES AND CONFLICT OF LAWS
E. Arbitration proceedings (Lennarz)
F. Conflicts of jurisdiction and the applicable law in domestic courts’ proceedings (Kieninger)

PART 3
STATE LIABILITY UNDER INTERNATIONAL AND EUROPEAN LAW
G. Environmental liability in international law (Wolfrum)
H. The international law and policy implications of climate change litigation: sustainable developments in international investment law and policy related to renewable energy, climate change mitigation and adaptation (Cordonier Segger/Arvan/Byron/Srinivas)
I. The Paris Climate Agreement and liability issues (Franzius/Kling)
J. Liability of EU Member States under EU law (Purnhagen/Saurer)

PART 4
CLIMATE CHANGE LITIGATION – NATIONAL REPORTS
K. Climate change litigation in the United States (Farber)
L. Climate change litigation in Canada (Jodoin/McGinn)
M. Climate change litigation in Brazil (Wedy)
N. Climate change litigation in Australia (Bell-James)
O. Climate change litigation in the United Kingdom (Ohdedar/McNab)
P. Climate change litigation in Italy (Butti)
Q. Climate change litigation in France (Epstein/Deckert)
R. Climate change litigation in the Netherlands – the Urgenda case and beyond (Van der Veen/De Graaf)
S. Climate change litigation in Germany (Weller/Nasse/Nasse)

PART 5
LIABILITY FOR CLIMATE DAMAGES – GERMANY AS AN INTERNATIONAL PIONEER?
T. Liability for climate damages under the German law of torts (Wagner/Arntz)
U. Liability for climate change damages under the German Environmental Liability Act (Nitsch)
V. Climate protection and compliance in German corporate law (Habersack/Ehrl)
W. Investor-led action for climate and business sustainability (Duve/Hamama)
X. Liability for climate damages under the Environmental Damage Act (Kahl/Stürmlinger)
Y. The role of non-governmental organizations for climate change litigation (Verheyen/Pabsch)
PART 6
CONCLUSIONS
LIABILITY FOR CLIMATE DAMAGES –
SYNTHESIS AND FUTURE PROSPECTS (Kahl/Weller)

 

 

This post is addressed, in particular, to my fellow colleagues of the ILA Committee Committee on the Protection of Privacy in Private International and Procedural Law; may we meet this year, in person.

Violeta Friedman (1930–2000) was a Jewish Holocaust survivor born in Marghita, Transylvania, Romania. She became well-known in Spain thanks to a ruling of the Constitutional Court (STC 214/1991 – aka the ‘Violeta Friedman case’) on the fundamental right to honor.

Violeta Friedman was deported in 1944 to the Auschwitz-Birkenau concentration camp, at the age of fourteen. She lost most of her family to the Nazis. After the  War she lived in Canada and in Venezuela; in 1965 she moved to Spain with her daughter.

In 1985, feeling outraged by statements made by the former head of the Waffen SS L. Degrelle to a Spanish journal, where he denied the Holocaust and voiced anti-Semitic and racist opinions, she started civil proceedings in Spain against him, the journalist signing the report, and the editor of the journal. After several unfavorable decisions of the ordinary courts, the Constitutional Court of Spain confirmed her legal standing to sue in 1991, based on ‘her dual condition, as a citizen of a people such as the Jews, who suffered an authentic genocide by National Socialism, and as a descendant of her parents, maternal grandparents and great-grandmother (all of whom were murdered in the aforementioned concentration camp)’. Most relevant, just before this assertion the Court had said that

It is considered as original legal standing that of a member of a specific ethnic or social group, when the offense is directed against that entire group in such a way that, by belittling said group, it tends to provoke feelings from the rest of the social community hostile or, at least, contrary to the dignity, personal esteem or respect to which all citizens are entitled.

The Constitutional Court also found that Degrelle’s assertions amounted to a violation of the right to honor of Violeta Friedman and the victims of Nazi camps. This ruling served as a precedent for the reform of the Spanish Criminal Code.

Violeta Friedman’s claim was never contested on the basis of lack of international jurisdiction of the Spanish courts. L. Degrelle was present in Spain when he was interviewed, and there appears to have been no discussion about his domicile there at the time the court was seized; the same applies to the co-defendants. Degrelle’s anti-Semitic assertions were printed in a Spanish magazine, and distributed mainly in Spain. It could be argued that, even if the case involved a foreign element to some extent, it affected the claimant’s side and did not trigger doubts related to the international jurisdiction under the applicable rules.

40 years later, one can safely take for granted that the declarations of Degrelle would be on the net, largely accessible. Violeta Friedman could have read them at home in Madrid; other survivors of a concentration camp, at home as well, in Bucharest or in Paris – just to name a couple of places. For the sake of the argument, let’s assume that the publisher has its seat in Germany and the online newspaper is published in German on a website ending ‘.de’. Would the Spanish (Romanian, French, etc) courts still have jurisdiction for a claim like hers?

In fact, there is no need to assume anything. A preliminary reference currently pending before the Court of Justice, which has so far, to the best of my knowledge, remain unnoticed, will provide for an answer in due course. Case C-800/19 relates to a dispute between SM, a Polish national living in Warsaw, and Mittelbayerischer Verlag KG, a German company which publishes a daily journal in German on the http://www.mittelbayerische.de website. The newspaper is regional in nature but may be accessed from other countries, including Poland.

SM was a prisoner in Auschwitz during the Second World War; today, he is involved in activities aimed at preserving, in the public consciousness, the memory of the victims of crimes committed by Nazi Germany against Poles during the Second World War. On 15 April 2017, an article entitled ‘Ein Kämpfer und sein zweites Leben’ was published on http://www.mittelbayerische.de. At some point, the sentence ‘was murdered in the Polish extermination camp of Treblinka’ (italics added) appeared in the text. The phrase remained on the website for only a few hours on 15 April 2017. After an e-mail by the Polish consulate in Munich, the phrase in question was replaced with ‘was murdered by the Nazis in the German Nazi extermination camp of Treblinka in occupied Poland’, thus reflecting the historical fact that the camp in Treblinka was a German Nazi extermination camp established during the Second World War within the territory of occupied Poland.

SM lodged an application against Mittelbayerischer Verlag KG with the Regional Court of Warsaw on 27 November 2017, requesting that his personality rights, in particular national identity and national dignity, be protected by:

–   prohibiting the defendant from disseminating in any way the terms ‘Polish extermination camp’ or ‘Polish concentration camp’ in German or any other language in relation to German concentration camps located within the territory of occupied Poland during the Second World War;

–   ordering the defendant to publish on its website a statement with the content specified in the application, apologising to the applicant for the infringement of his personality rights caused by the online publication of 15 April 2017, which suggested that the extermination camp in Treblinka was built and operated by Poles;

–  ordering the defendant to pay the amount of PLN 50 000 to the Polski Związek Byłych Więźniów Politycznych Hitlerowskich Więzień i Obozów Koncentracyjnych (Polish Association of Former Political Prisoners of Nazi Prisons and Concentration Camps).

To justify the jurisdiction of the Polish court, the applicant relied on the judgment of the Court of Justice in eDate Advertising and Martinez (Joined Cases C-509/09 and C-161/10).

The defendant filed a motion for dismissal of the action on the ground that Polish courts lack jurisdiction. He stresses that, unlike the situation in Joined Cases C-509/09 and C-161/10, the online article which became the basis for SM’s action did not directly concern the applicant. The defendant also emphasises its regional profile and readership range, as its reporting covers the Upper Palatinate, Bavaria and focuses primarily on regional news; the heading ‘Germany and the World’ is only in fourth place on the page menu. He also points out that the website exists solely in a German-language version. All in all, the defendant relies on the requirement that jurisdiction under Article 7(2) of the Brussels Ibis Regulation must be predictable and claims that, operating on a local scale and addressing its message to recipients who do not include the applicant, he could not have objectively foreseen the jurisdiction of Polish courts.

The case reached the Court of Appeal of Warsaw, First Civil Division, which has addressed the following questions to the Court of Justice:

1. Should Article 7(2) of Regulation (EU) No 1215/2012 […] be interpreted as meaning that jurisdiction based on the centre-of-interests connecting factor is applicable to an action brought by a natural person for the protection of his personality rights in a case where the online publication cited as infringing those rights does not contain information relating directly or indirectly to that particular natural person, but contains, rather, information or statements suggesting reprehensible actions by the community to which the applicant belongs (in the circumstances of the case at hand: his nation), which the applicant regards as amounting to an infringement of his personality rights?
2. In a case concerning the protection of material and non-material personality rights against online infringement, is it necessary, when assessing the grounds of jurisdiction set out in Article 7(2) of Regulation No 1215/2012 […], that is to say, when assessing whether a national court is the court for the place where the harmful event occurred or may occur, to take account of circumstances such as:

– the public to whom the website on which the infringement occurred is principally addressed;

– the language of the website and in which the publication in question is written;

– the period during which the online information in question remained accessible to the public;

– the individual circumstances of the applicant, such as the applicant’s wartime experiences and his current social activism, which are invoked in the present case as justification for the applicant’s special right to oppose, by way of judicial proceedings, the dissemination of allegations made against the community to which the applicant belongs?

At point 16 of the request, the referring court states

At the present stage of the main proceedings, no consideration may be given to the substantive law applicable to the assessment of the claims submitted and the Sąd Apelacyjny (Court of Appeal) is even less able to consider whether those claims have merit under the substantive law and whether the applicant is entitled to make them.

I am not sure one can split the decision on legal standing and the one on international jurisdiction when the latter requires identifying the center of interest of the victim. In any event, and not only for this: a preliminary reference which deserves to be followed.

The New York Convention of 1958 owes much of its success to being an international convention setting forth uniform rules. Its uniform enforcement regime not only lowers the parties’ transaction costs of identifying under which circumstances an award will be recognized and enforced across jurisdictions; it also ensures that States cannot justify the failure to comply with their obligations under the New York Convention by reference to domestic law. Still, the courts of different contracting States apply the Convention differently. Oftentimes, this is due to the erroneous understanding of concepts employed by the drafters of the Convention.

To shed the light on this complex matter, on 21 January 2021 the NYU Center for Transnational Litigation, Arbitration, and Commercial Law will host a conference on Autonomous v. Nationalistic Interpretation of the 1958 New York Convention. In this context, a group of internationally renowned scholars will address core issues such as: ‘Autonomous Interpretation of the New York Convention’ (Franco Ferrari); ‘The notion of an arbitral award’ (Burkhard Hess); ‘Arbitration agreement – Scope issues’ (Dennis Solomon); and ‘Arbitrability’ (Winnie Ma).

More information on this event is available here.

Contrat de travail, durée déterminée

Statuts collectifs du travail

Contrat de travail, exécution

Travail, réglementation - Durée du travail

Entreprise en difficulté (loi du 26 juillet 2005)

Contrats et obligations civils

Foundation for the Protection of the Traditional Cheese of Cyprus named Halloumi / EUIPO - M. J. Dairies (BBQLOUMI)
Propriété intellectuelle et industrielle
Le Tribunal confirme l’absence de risque de confusion entre la marque collective HALLOUMI, réservée aux membres d’une association chypriote, et le signe « BBQLOUMI » servant à désigner les produits d’une société bulgare

 

The new issue of the AJ Contrat (12/2020) Dalloz contains a special dossier to mark the 40th Anniversary of the United Nations Convention on Contracts for the International Sale of Goods (CISG), prepared by Gustavo Cerqueira, full professor at the University of Nîmes, France (in French).

The dossier foreword reads as follows (English translation): “The international sale of goods supports a peace project between Nations. Ninety-four of them share today the same body of substantive rules largely governing the formation and the performance of contracts for the sale of goods as diverse as wine and children’s toys. This uniform law is supported by the United Nations Convention concluded in Vienna on April 11, 1980 (the CISG), which celebrates in 2020 its forty years. This anniversary could not go unnoticed. Few are the instruments on international harmonization that are coming at the age of maturity with such unparalleled authority and vitality. In addition to the constant expansion of its geographical scope of application through the increasing number of accessions, its influence on modernization of certain domestic contract laws, such as the recent legislative reform passed in France, attests to its importance. This can also be measured by the always fascinating questions that arise regarding its existence, its content and its application. Some of them will deserve a sharp analysis, sometimes renewed by those who are participating in this commemorative dossier. Thus, crucial to the success of the Convention – the uniform interpretation remains a challenge, while European Union law recognizes an unexpected importance to the Convention. Also, the CISG’s application still seems to be threatened by the silence of the contractors, while the Convention has dangerous liaisons with the French action directe. The links are no less complex between the foreclosure period and the deadline prescription period, while interest rates reveal unresolved issues. Last but not least, poignant current events call for a reinterpretation of the notion of impediment to perform”.

The dossier contains the following articles (titles have been translated into English):

The challenge of uniform interpretation, by Claude Witz (Saarland University)

The CISG’s articulation with the European Union Law, by Cyril Nourissat (University of Lyon 3)

Back on the parties’ silence about the CISG’s application, by Gustavo Cerqueira (University of Nîmes) and Nicolas Nord (University of Strasbourg)

The Vienna Convention and the action directe:  back on dangerous liaisons, by Etienne Farnoux (University of Strasbourg)

The links between the foreclosure period and the deadline prescription period (about CISG’s Article 39), by Marc Mignot (University of Strasbourg)

The issue of interest rates on arrears, by Franco Ferrari (New York University)

For a reinterpretation of the concept of impediment to perform, by Ludovic Pailler (University of Lyon 3)

The full table of contents is available here (in French).

Sánchez-Bordona AG opined last week in C-913/19 CNP. The issue is whether a Polish court has international jurisdiction to rule on a dispute between a company to which a person injured in a road traffic accident that occurred in Poland had assigned his rights, and the insurance undertaking, established in Denmark, which insures the risks of the person who caused the accident. Krzysztof Pacula has interesting Polish context here. He also gives more background to the market and legal implications of involving third parties (such as garages repairing vehicles and providing replacement vehicles) and I am happy to refer to his analysis.

On applicable law and assignment, the EC has proposed rules which complement Rome I. That proposal is making its way through the Institutions, at snail’s pace. On jurisdiction, CJEU Hofsoe clarified one or two things but also created extra fog. The UKSC distinguished Hofsoe in Aspen Underwriting, not however without great effort and with continuing question marks. This really is an area which could do with co-ordinated Rome I and BIa legislative tweaking.

On the specific issue of branch jurisdiction, the case echoes Ryanair v DelayFix. The AG finalises his analysis on that question as follows:

 a commercial company established in a Member State which operates under a contract with an insurance undertaking established in another Member State may be classified as a ‘branch, agency or other establishment’ of that undertaking if, cumulatively:

–        it operates in a Member State by providing compensation for material damage on the basis of insurance against civil liability arising from the use of motor vehicles the risks connected with which are covered by the insurance undertaking;

–        it has the appearance of an extension of the insurance undertaking; and

–        it has a management body and material facilities such as to enable it to transact business with third parties, so that the latter, although knowing that there will if necessary be a legal link with the insurance undertaking, do not have to deal directly with that undertaking.’

Not of course a set of criteria which lead to much spontaneous predictability – again an issue which in the specific insurance context could do with statutory intervention.

Geert.

EU Private International Law, 3rd ed. 2021, para 2.293 ff, para 2.73 ff.

Opinion Sanchez-Bordona in C‑913/19 CNP this morning the concept of 'branch' (for: branch jurisdiction) in Brussels Ia https://t.co/R0ubu9kTDE
with reference to ZX v Ryanair (on which see https://t.co/LPpDMQwMTE)

— Geert Van Calster (@GAVClaw) January 14, 2021

Venezuela / Conseil
Relations extérieures
Selon l’avocat général Hogan, un État tiers peut avoir la qualité pour former un recours en annulation des mesures restrictive adoptées par le Conseil contre lui

Marilyn Freeman (University of Westminster, London) has written an in-depth analysis on the Child Perspective in the Context of the 1980 Hague Convention at the request of the Committee on Legal Affairs (JURI Committee) of the European Parliament.

The abstract reads as follows:

This in-depth analysis, commissioned by the Policy Department for Citizens’ Rights and Constitutional Affairs at the request of the Committee on Legal Affairs in the context of the Workshop to mark the 40th Anniversary of the Hague Convention on the Civil Aspects of International Child Abduction, examines the way in which subject children feature within Convention proceedings. It considers the aims of the Convention, and the lack of supranational control of its application. It draws on empirical research relating to the effects and consequences of child abduction to discuss the opportunities for children and young people to participate within Convention proceedings, and highlights the international obligations for such participation within the United Nations Convention on the Rights of the Child, The Charter of Fundamental Rights of the European Union, and other regional instruments. Different jurisdictional approaches are explained, and the role of culture in this context is probed. The impact of COVID-19 on abducted children is also explored.

Here’s an overview of the analysis.

The 1980 Hague Convention considers as paramount children’s interest in matters relating to their custody as well as their protection from the harmful effects of their wrongful removal or retention, and the procedures to secure their prompt return to the State of habitual residence. According to Article 12(1) of the Convention an abducted child under the age of 16 should be returned in less than one year since his/her wrongful removal or retention unless one of the limited exceptions to return under the Convention is established (see Articles 12(2), 13 and 20), and there are opportunities for children’s involvement in the far-reaching decisions which are taken in those proceedings.

The way in which these relevant provisions are interpreted and applied within the 101 Contracting States determine both the extent to which children’s rights are recognised and upheld under the Convention, as well as the success of the Convention in its aim of protecting children from the harmful effects of child abduction.

The present in-depth analysis relies on a small-scale qualitative study based on 34 interviews carried out by Professor Freeman (more about this can be read here). The empirical research sought to reveal more about ‘the lived experiences of those who had been through an abduction many years earlier’ and ascertain ‘whether, and how, the participants felt that the abduction had affected their lives, and if those effects had continued long-term’.

The results indicate that there is often still a lack of awareness by children and young people, and their families, about the opportunities to participate in the proceedings, as well as on how to ensure that their rights are recognised and protected. Furthermore, to observe the right of the children to benefit from meaningful opportunities to participate in the proceedings and prevent harm, it appears that a closer integration of children’s rights’ principles in the application of the Convention is desirable.

The impact of COVID-19 on children subject to abduction proceedings is also discussed. The international nature of these cases and the difficulties and limitations created by the pandemic meant that children had to spend an undesirable period after the decision waiting for return to be carried out. Additionally, a procedure of return can involve periods of quarantine, a situation that can exacerbate the child’s distress due to the separation from the abducting parent who may be a primary or joint primary carer and who may choose not to return with the child or be unable to do so. According to the analysis, the emotional effect of a return ordered in these circumstances may be very difficult for the child to manage. The remote conduct of return hearings can also create challenges for subject children and reflect on their decision about participating in a hearing that concerns them. According to Professor Freeman ‘children should have opportunities to express their views within abduction proceedings whether or not an objection to return has been raised, and regardless of whether or not the jurisdiction involved is governed by a regulatory regime, like Brussels IIa and the upcoming Recast, which specifically address the rights of children to be heard within a specific jurisdictional area’. Thus, to protect children from the harmful effects of child abduction, it is paramount to give children who wish to participate in the proceedings about their abduction the opportunity to be heard when the decision has the potential to impact significantly on their lives.

The analysis concludes that further discussions are necessary in this area as well as a ‘closer incorporation of children’s rights’ principles in the 1980 Convention framework’.

Yesterday, 18 January 2021, Singapore acceded to the HCCH Convention of 5 October 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents, which will enter into force for Singapore on 16 September 2021.

Source: https://www.hcch.net/en/news-archive/details/?varevent=781