Agrégateur de flux

The Vrije Universiteit Brussel (VUB) and the Small Claims Analysis Net 2 (SCAN2) Project consortium partners and are organising a final conference regarding Small Claims Dispute Resolution on 22-23 February 2024.

The SCAN2 final conference will be organised around two main pillars: first, present the acquired research results of the SCAN2 project to the public, and second, bringing together international academics, practitioners, PhDs, and stakeholders in a supranational forum aiming to discuss the latest legal developments on the existing legal remedies for the small claims models of dispute resolutions for consumers within the European Union.

The call for papers concerns the second pillar of the conference focused on the latest developments and sharing of knowledge in relation to the European models of small claims dispute resolution and online dispute resolution (ODR).

Special consideration will be made for the topics discussing the European Small Claims Procedure Regulation (EU) 861/2007 (as amended by Regulation (EU) 2015/2421), but the organisers encourage submissions also on the following topics: small claims remedies for consumers; online dispute resolution for small claims; cross-border justice for consumers; small claims judgment and enforcement challenges; consumer privacy and data protection in using technology for resolving small claims; the connection between the Brussels Ia Regulation and the Regulations on the European Enforcement Order, the European Small Claims Procedure, the European Payment Order and the European Account Preservation Order and their implementation in national procedural law; best national and supranational practices of national small claims proceedings; digitalisation of small claims proceedings; different fora for the initiation of the small claims proceedings; relationship between the Digital Service Act and ODR for consumers; the future of consumer ODR; and the revision of the new ADR directive and small claims.

Additional information can be found here. Enquiries concerning the academic aspects of the event and the call for papers should be directed to the Conference Chair, Marco Giacalone, at marco.giacalone@vub.be. All other enquiries should be addressed to seyedeh.sajedeh.salehi@vub.be or paola.giacalone@vub.be.

Depuis quelques années, le droit de se taire ne cesse de monter en puissance et la loi n° 2021-1729 du 22 décembre 2021 pour la confiance dans l’institution judiciaire a parachevé sa reconnaissance. Pour autant, il pourrait y avoir des oublis. En effet, sa notification n’a pas été systématisée, notamment dans le cadre de la procédure d’exécution du mandat d’arrêt européen, et la jurisprudence entérine, une nouvelle fois, ce choix du législateur, dans un arrêt en date du 5 décembre 2023.

Sur la boutique Dalloz Code de procédure pénale 2024, annoté Voir la boutique Dalloz

en lire plus

Ugljesa Grusic has excellent and prompt analysis of Hugh Hall Campbell KC against James Finlay (Kenya) Ltd [2023] ScotCS  CSIH_39 here. I have background to the issues ia here and I reported on the now successfully appealed first instance judgment [2023] CSOH 45 here.

Dr Grusic first of all highlights the lack of engagement by the Court (as indeed at first instance level, too) with the impact of the employment section of the Civil Jurisdiction and Judgments Act 1982 on both the question of availability at all of choice of court in employment contracts to displace domicile jurisdiction, and of the overall availability of forum non conveniens in the same circumstances.

Next, unlike the first instance judge, the Inner House held that relevant Kenyan labour law protection (including compensation) does apply to the contracts at issue, [67] that the applicants have a working and affordable regime at their disposal in Kenya to try and obtain such compensation and [69] for the reason stayed the case at least until the Kenyan scheme will play its role (or not). [70] the court oddly adds that its stay is not one of forum non conveniens, which it says it is currently leaving undecided.

One assumes PTA with the UKSC will be sought for the points identified by Ugljesa are very much unresolved points of law.

Geert.

 

 The Centre for Private International Law (CPIL) of the University of Aberdeen is pleased to announce that it is now accepting is now accepting submissions for the 2nd Postgraduate Law Conference of the Centre for Private International Law which will take place online on 6 May 2024. 

The Conference aims to provide young scholars with the opportunity to present their research before panels with relevant expertise and receive valuable feedback for further development of their work. It will include panels on Private International Law aspects of International Family Law, International Civil and Commercial Law, AI and Cross-Border Legal Issues, Human Rights. You can read more about below. 

The Centre welcomes submissions by current postgraduate law students (LLM, PhD) and recent LLM or PhD graduates who have not yet undertaken postdoctoral studies. Each panel will feature up to 4 panellists, and each panel will be allocated a combined total of 1 hour 20 minutes of presentation time and 40 minutes of Q&A. 

The deadline for submissions is 29 February 2024. If interested in submitting an abstract, please complete the application form. 

The first view articles for ICLQ issue 1 of 2024 was recently published. As regards, private international law, it contains one research article and a book review as follows:

T Marzal, “The Territorial Reach of European Union: A Private International Law Enquiry into the European Union’s Spatial Identity”

This article offers a reconstruction of how the Court of Justice of the European Union (EU) justifies the territorial scope of application of EU law. Scholarship on this issue tends to advocate for an expansive projection of EU norms in the pursuit of global values, subject to the external limits of public international law. This article will develop a critique of this approach by pointing to its underlying assumptions as to the territorial dimension of the EU’s rule, the insoluble practical issues that it leads to, and the need to consider differently the EU’s spatial identity and relation to the wider world. It will also be argued that, in fact, other case law sometimes already reflects an alternative vision, by imagining the EU implicitly, not as a ‘global actor’ promoting universal values, but as a concretely situated and spatially bounded community. It will be shown that this is so with the methodological help of private international law, and in particular three doctrines that are traditional to this discipline—the localisation of cross-border relations, international imperativeness, and the public policy exception. This will ultimately allow for a more sophisticated understanding of the EU’s territory to emerge—irreducible to the physical coordinates of its acts of intervention, or the mere sum of the physical spaces under Member State sovereignty, but as a distinct space of social relations, informed and delineated by the particular axiology and structure of the EU legal system.

 

C Okoli, “Jurisdiction Over Non-EU Defendants: Should the Brussels Ia Regulation be Extended? by Tobias Lutzi, Ennio Piovesani and Dora Zgrabljic Rotar (eds) [Hart Publishing, Oxford, 2023, 376 pp, ISBN: 978-1-5099-5891-7, £90.00 (h/bk)]

 

The Spanish Association of Professors of International Law and International Relations (AEPDIRI) is organizing its VII Seminar on current issues in Private International Law on the topic A Private International Law centred on the rights of individuals. The seminar will take place at the Faculty of Law of the Universidad Pontificia Comillas (ICADE) in Madrid (https://www.comillas.edu) on 14 March 2024.

The Seminar is intended to discuss topics related to the challenges posed by the rights of individuals from a broad perspective and from a Private International Law dimension, related to the following thematic lines: Current issues raised by the regulation of the capacity of persons in Private International Law; Current issues raised by the regulation of parentage in international situations; The rights of vulnerable persons from a Private International Law dimension; Challenges posed by digitisation to the rights of the individual in private cross-border situations; Due diligence obligations in value chains and Private International Law; Civil liability of multinationals for human rights violations; New challenges in Immigration Law; Migrants’ rights from a Private International Law perspective.

Researchers are welcome to propose presentations which should cover one of the above-mentioned questions. Proposals should fit into the objectives of the Seminar and will be selected –for their oral presentation and/or publication- according to their relevance, quality and originality in respect to their contribution to the development of Private International Law studies.

Proposals should be submitted, following the requirements of the call, no later than 15 January 2024, by e-mail to: seminarioactualidad.dipr2024@aepdiri.org.

The working language of the Seminar will be Spanish, but papers may be also presented in English or French.

The submission of abstracts for selection as well as the participation to the Seminar are free of charge.

Ilva e.a.
Environnement et consommateurs
L’avocate générale Kokott s’exprime sur l’aciérie d’Ilva située dans le sud de l’Italie

Commission / Roumanie (Désaffectation de décharges)
Environnement et consommateurs
Déchets : la Cour impose des sanctions financières à la Roumanie pour n’avoir pas fermé des décharges non autorisées

Natsionalna agentsia za prihodite
Principes du droit communautaire
Cybercriminalité : la crainte d’un potentiel usage abusif de données personnelles peut, à elle seule, constituer un dommage moral

Commission / Amazon.com e.a.
Aide d'État
La Cour confirme que la Commission n’a pas établi que le tax ruling accordé à Amazon par le Luxembourg était une aide d’État incompatible avec le marché intérieur

Sparkasse Südpfalz
Libre circulation des personnes
Pandémie de Covid-19 : le droit de l’Union n’exige pas qu’un employé mis en quarantaine pendant son congé annuel payé puisse reporter ce dernier

Written by Wenliang Zhang (Associate Professor at Renmin University of China Law School), Haoxiang Ruan (PhD Candidate at Renmin University of China Law School), and William S. Dodge (the John D. Ayer Chair in Business Law and Martin Luther King Jr. Professor of Law at UC Davis School of Law).

 

On September 1, 2023, the Standing Committee of China’s National People’s Congress (NPC Standing Committee) passed the Law of the People’s Republic of China on Foreign State Immunity (FSIL) (English translation here). The FSIL will enter into force on January 1, 2024.

This law heralds a fundamental shift of China’s attitude towards foreign state immunity, from strict adherence to the absolute theory to adoption of the restrictive theory. According to Article 1 of the law, the FSIL aims to “to protect the lawful rights and interests of litigants, to safeguard the equality of state sovereignty, and to promote friendly exchanges with foreign countries.” A report on the draft law also suggests that it is intended to build China’s foreign-related legal system and to promote China’s Belt and Road Initiative.

The FSIL borrowed from the foreign state immunity laws of other countries and from the UN Convention on Jurisdictional Immunities of States and Their Properties. In a prior post on Transnational Litigation Blog (TLB), one of us discussed some significant provisions of the FSIL, comparing them to the relevant provisions of the UN Convention. In this post, we examine some foreign relations aspects of the new law, including the role of the Ministry of Foreign Affairs, the principle of reciprocity, and whether the FSIL extends to Hong Kong and Macau.

 

The Prominent Role of Foreign Ministry

Several provisions of the FSIL reflect the important role of China’s Ministry of Foreign Affairs (MFA). The most notable is Article 19.

Article 19 provides in its first paragraph that Chinese courts “shall accept” documents issued by the MFA on certain factual questions. These include whether the state concerned qualifies as a “foreign sovereign state” for purposes of the FSIL, whether and when a state has been served by diplomatic note, and other factual issues relating to the acts of the state concerned. This last provision vests the MFA with authority to decide factual questions regarding the foreign state’s conduct.

The second paragraph of Article 19 empowers the MFA to issue opinions to Chinese courts on other issues “that concern foreign affairs and other such major state interests.” The distinction between the first and second paragraphs suggests that opinions on other issues are not necessarily binding on Chinese courts. On the other hand, it seems unlikely that Chinese courts will ignore opinions that the MFA decides to express.

Article 19 is somewhat similar to Article 21 of the UK State Immunity Act (SIA). The SIA grants the UK Secretary of State authority to determine conclusively whether a foreign state is covered by the Act and whether service has been made through diplomatic channels. By contrast, the US Foreign Sovereign Immunities Act (FSIA) does not give the US government authority to decide such issues. The US Supreme Court has suggested that the executive branch’s views on questions of foreign relations might be entitled to some deference, but the issue remains unresolved in US law.

Articles 4 and 17 of the FSIL also give China’s MFA roles to play. Article 4 provides that a foreign state shall not enjoy immunity from jurisdiction if the foreign state has expressly consented to the jurisdiction of Chinese courts. Article 4(4) allows a foreign state to consent, among other means, by submitting a document through diplomatic channels. Article 17 permits service of process through diplomatic channels if the foreign state cannot be served pursuant to an international agreement or other means acceptable to the foreign state.

The UN Convention’s provision on consent to jurisdiction (Article 7) does not mention diplomatic channels. Article 2(7) of the UK’s SIA, on the other hand, does allow the head of foreign state’s diplomatic mission in the United Kingdom to submit to the jurisdiction of UK courts. The US FSIA makes no express mention of diplomatic channels in its provision on waiving immunity. The UN Convention’s provision on service of process (Article 22) does allow service through diplomatic channels, as does Article 12 of the UK’s SIA. The US FSIA also permits use of diplomatic channels to serve a foreign state but only if three other means of service listed in § 1608 are not available.

The prominent role of China’s MFA under the FSIL is noteworthy, particularly in comparison to the more limited roles played by the governments of the United Kingdom and the United States. The Legislative Affairs Commission of the NPC Standing Committee has stated that the FSIL should “ensure that the policy of foreign affairs of the State is accurately captured in the case.” The provisions discussed above—particularly Article 19—seem designed to do this. On the other hand, active involvement by the MFA in cases under the FSIL may raise concerns about lack of predictability and interference with the administration of justice.

 

The Principle of Reciprocity

The foreign relations aspects of the FSIL are also reflected in its reciprocity provision. Article 21 provides: “Where foreign states accord the PRC and its property narrower immunity than is provided by this Law, the PRC will apply the principle of reciprocity.” In Chinese, the term translated here as “reciprocity” is duideng, which connotes equal treatment for unwanted or unfriendly foreign actions. In the context of foreign state immunity, duideng means that, if foreign states grant less immunity to China, China will respond by granting less immunity to those foreign states.

Under the prior Law of the People’s Republic of China on Immunity of the Property of Foreign Central Banks from Compulsory Judicial Measures, the same principle of reciprocity (duideng) was applied in Article 3 to foreign states that granted less immunity to central bank assets of the People’s Republic of China. Article 20 of the FSIL extends this principle to issues of foreign state immunity more generally. This principle of reciprocity (duideng) also appears in Article 5(2) of China’s Civil Procedure Law (CPL) and Article 99(2) of China’s Administrative Litigation Law to address restrictions on the litigation rights of Chinese parties imposed by foreign countries.

The principle of reciprocity (duideng) found in the FSIL is distinct from another principle of reciprocity (huhui) used in the context of judicial assistance between China and foreign countries. The CPL generally provides that reciprocity (huhui) may be relied upon to provide judicial assistance in service of process, investigation and collection of evidence, and other litigation activities (Article 293). Above all, reciprocity (huhui) provides the basis for recognizing and enforcing foreign judgments (Article 298). Although Chinese courts used to interpret this principle narrowly by requiring foreign courts to recognize Chinese judgments first, it has recently liberalized its position.

Because “huhui” serves to encourage or promote, whereas “duideng” serves to respond and punish, it is potentially misleading to translate both principles as “reciprocity.” It might be better to reserve “reciprocity” for the principle “huhui.” which underlies the recognition of foreign judgments for example. “Duiding,” as used in the FSIL and other Chinese laws mentioned above, might be translated instead as “equal treatment.”

 

Hong Kong and Macau

Another foreign relations aspect of the FSIL is its territorial scope of application. Hong Kong and Macau are part of the People’s Republic of China, but they have separate legal systems. Does the FSIL apply not only in Mainland China but also in Hong Kong and Macau?

The text of the FSIL does not address this question explicitly. However, the FSIL’s reference to “Courts of the People’s Republic of China” stands in sharp contrast to the references in the CPL and other Chinese laws to “People’s Courts of the People’s Republic of China” or “People’s Courts.” By using a different—and potentially broader—term, the NPC Standing Committee has certainly not restricted the FSIL’s application to courts in Mainland China.

However, Article 18(2) of Hong Kong’s Basic Law states that “National laws shall not be applied in the Hong Kong Special Administrative Region [HKSAR] except for those listed in Annex III to this Law.” Under this provision, only when the FSIL is added to Annex III will the FSIL formally apply in Hong Kong courts.

But even if the FSIL is not added to Annex III, Hong Kong courts can be expected to follow it. In Democratic Republic of the Congo v. FG Hemisphere Associates LLC (2011), the Hong Kong Court of Final Appeal held that “[t]he HKSAR cannot, as a matter of legal and constitutional principle, adhere to a doctrine of state immunity which differs from that adopted by the PRC” (¶ 183(a)). In that case, the court held that Hong Kong courts had to follow the doctrine of absolute state immunity, which was then China’s official position, even though Hong Kong courts had previously adopted the doctrine of restrictive immunity. Now that China has adopted the restrictive theory, the decision in FG Hemisphere Associates requires Hong Kong courts to follow China’s new approach. Although the details with respect to Macau are different, courts in Macau can similarly be expected to follow China’s new policy on foreign state immunity as reflected in the FSIL.

 

Conclusion

China has adopted a new approach to foreign state immunity by enacting the FSIL. Applying the FSIL will be primarily a task for China’s courts, including courts in Hong Kong and Macau, which will have to follow the new policy. Among other things, Chinese courts must apply the FSIL’s reciprocity provision, which requires them to accord “equal treatment” if foreign states grant China less immunity than the law provides. However, the leading role that courts will play under the FSIL must not cause one to ignore the significant role of China’s MFA under the new law, particularly in determining when foreign states are covered by the FSIL and in determining factual issues relating to the conduct of foreign states.

Hamoudi / Frontex
Droit institutionnel
Le recours en indemnité d’un ressortissant syrien contre Frontex, prétendument reconduit en mer de la Grèce vers la Turquie, est rejeté

On 8 and 9 March, a conference will be held at the University of Augsburg, Germany, to discuss the current developments in the award and/or recognition of punitive damages. The conference, which is part of a larger research project, takes the leading German decision on the question as a starting point to discuss if and to what extent its highly restrictive approach is still tenable.

The conference will feature the following contributions:

Who’s Afraid of Punitive Damages?

Afraid of What?

Compensation, Punishment, and the Idea of Private Law
Prof Lukas Rademacher, University of Kiel, Germany

Punitive Damages and Insurance
Prof Jan Lüttringhaus, University of Hanover, Germany

Discussant: Prof Phillip Hellwege, University of Augsburg, Germany

Why to be Afraid?

Who‘s afraid of punitive damages for product liability?
Prof Catherine Sharkey, New York University, US

Punitive Damages in English Law
Prof Rachael Mulheron, Queen Mary University London, UK

Discussant: Dr Eleni Katsampouka, University of Cambridge, UK

When to be Afraid?

Punitive Damages and Public Policy
Prof Cedric Vanleenhove, University of Ghent, Belgium

The Public Policy Exception in the 2019 Hague Judgments Convention
Prof Marko Jovanovic, University of Belgrade, Serbia

Discussant: Prof Leonhard Hübner, University of Augsburg, Germany

Who is (Still) Afraid?

Panel 1: Still Afraid

Netherlands
Prof André Janssen, Radboud University, Netherlands

Japan
Prof Beligh Elbalti, University of Osaka, Japan

Germany
Dr Johannes Ungerer, University of Oxford, UK

Discussant: Prof Wolfgang Wurmnest, University of Hamburg, Germany

Panel 2: No Longer Afraid

France
Prof Samuel Fulli-Lemaire, Université de Strasbourg, France

Italy
Dr Caterina Benini, Università Cattolica del Sacro Cuore, Italy

South Korea
Dr Min Kyung Kim, Incheon District Court, South Korea

Discussant: Dr Eleni Katsampouka, University of Cambridge, UK

The flyer for the conference can be found here.

Registration is possible via this link; attendance is free of charge.
Scholars with a substantial interest in the subject who will be unable to travel to Augsburg may request a link to the video stream via e-mail to tobias.lutzi@jura.uni-augsburg.de.

A new book entitled Blockchain and Private International Law has been published by Brill. It is available in open access and may be downloaded here. A book launch will take place on 20 December 2023 at 18:15 CET online and at the University of Lausanne (here is the link to the livestream).

The authors of the books are experts from various jurisdictions. The editors are Andrea Bonomi, Matthias Lehmann, and Shaheeza Lalani. It comprises five parts with overall 26 chapters.

The first part focuses on fundamental issues. It addresses the foundations of Distributed Ledger Technology (Tetsuo Morishita), the principle of technological neutrality  (Bruno Mathis), the general significance of private international law for crypto assets (David Sindres), property law issues associated with them (Christiane Wendehorst), as well as the problem of blockchain pseudonymity as an obstacle for the determination of the applicable law (Anne-Grace Kleczewski).

The second part addresses general conflict-of-laws problems raised by the blockchain. A taxonomy of crypto assets is given (Felix Krysa), the (in)significance of the situs is analysed (Amy Held), policy decisions are examined (Burcu Yüksel Ripley and Florian Heindler), and the law governing digital representations of off-chain assets is discussed (Emeric Prévost).

The third part examines specific crypto assets and legal relationships. It deals with central bank digital currencies (Caroline Kleiner), stablecoins (Matthias Lehmann and Hannes Meyle), blockchain torts  (Tobias Lutzi), insolvency issues (Giovanni Maria Nori and Matteo Girolametti), the law applicable to secured transactions on the blockchain (Matthias Haentjens and Matthias Lehmann), smart contracts (Mehdi El Harrak), blockchain-based negotiable instruments (Koji Takahashi), and crypto derivatives (Gregory Chartier).

The fourth part focuses on blockchain dispute resolution. In particular, the importance of the DAO for dispute resolution is investigated (Florence Guillaume and Sven Riva), and the recognition and enforcement blockchain-based decisions is analysed (Pietro Ortolani).

The fifth part of the book contains country reports. Represented are the legal systems of Switzerland (Pascal Favrod-Coune and Kévin Belet), the United States (Frank Emmert), Germany (Felix M. Wilke), in Liechtenstein (Francesco A. Schurr and Angelika Layr) and Japan (Tetsuo Morishita).

ANZSIL awards up to four ANZSIL publication prizes on an annual basis.  Up to two prizes will be awarded for books (the ANZSIL Book Prizes) and up to two prizes will be awarded for journal articles or book chapters (the ANZSIL journal article/ book chapter prizes).  

Both prizes will be available in an open and an early career researcher (ECR) category (that is, ANZSIL may award the ANZSIL book prize; the ANZSIL book prize (early career); the ANZSIL journal article/book chapter prize; and the ANZSIL journal article/book chapter prize (early career). ECR publications may be eligible to be awarded the ECR and/or the open prize.

Prizes are to be awarded annually, with the announcement of the winner of the prizes to be made at the annual ANZSIL conference in June/ July.

A sum of $750 will be awarded to each winning ANZSIL book and a sum of $250 will be awarded to each winning article/book chapter.

The ANZSIL book and article/book chapter prize winners will be invited to present and discuss their book/article/book chapter at an online event in August/September of the year of the award. The winners of the prizes are expected to make themselves available as assessors of the prizes in the subsequent year.

Assessment Criteria 

The ANZSIL publication prizes will be open to published work in any field of public and private international law. The prizes will be awarded on the basis of the following criteria:

• Significance of the work to the field of public/private international law.
• Originality within the field of public/private international law.
• Rigour – of research methods and analysis.
• Quality of writing.

For more information: https://anzsil.org.au/ANZSIL-Publication-Prizes-2022 

Dates for the 2024 ANZSIL Publication Prizes

Nominations for the 2024 Prizes are now open.  Full details on the criteria and information on the process of nomination, section and award are available here. The closing date for nominations is 1 February 2024.

To nominate please complete the following form: Nomination form for ANZSIL Publication Prizes 2024.

Large attachments should be uploaded into this Dropbox Folder (see Nomination Form):  Dropbox Folder for ANZSIL Publication Prizes 2024.

Authored by Bea Verschraegen and Florian Heindler, the Austrian Publishing House MANZ published on 1 December 2023 an Article-by-Article Commentary in two Volumes on the entire Private International Law applicable in Austria. The volumes include, in particular, the Rome Regulations (I–III), the Succession and the Matrimonial Property Regulation, the Hague Maintenance Protocol, the Hague Conventions on the Protection of Adults, on the Protection of Children, Adoption, Child Abduction and Traffic Accidents as well as the Austrian Private International Law Act. The two volumes with 1840 pages are edited by Peter Rummel, Meinhard Lukas and Andreas Geroldinger.

 

On 7 November 2023, less than three weeks after the judgment in Limbu v Dyson Technology Ltd (reported here), where the High Court of England and Wales applied the forum non conveniens doctrine to a business and human rights claim, the Inner House of the Scottish Court of Session (Scotland’s supreme civil court) directed around 5,000 Kenyan tea pickers in Campbell v James Finlay (Kenya) Ltd to pursue their claims for occupational injuries in Kenya (previous judgments in this case included [2022] CSIH 29, which addressed the certification of group proceedings, and [2022] CSOH 57, which concerned a motion for anti-suit interdict).

The case and the Inner House’s judgment are notably unusual for several reasons.

Let’s begin with the facts. The claimants, Kenyan tea pickers, brought proceedings against James Finlay (Kenya) Ltd, a Scottish company, in Scotland. Unusually for a transnational business and human rights dispute, the defendant directly employed the claimants in Kenya. No Kenyan subsidiary or supplier was involved in the alleged wrongs. This enabled the claimants to advance relatively straightforward negligence claims for breach of employer’s duty of care.

Everyone agreed that prima facie the court had jurisdiction under rule 1 in Schedule 8 to the Civil Jurisdiction and Judgments Act 1982, which is a rule of general jurisdiction based on the defendant’s domicile. The defendant challenged the court’s jurisdiction on two grounds: the existence of an exclusive Kenyan choice-of-court agreement and forum non conveniens.

The defendant relied on rule 6 in Schedule 8 to the 1982 Act to argue that the Scottish courts had no jurisdiction due to an exclusive Kenyan choice-of-court agreement. This is an unusual argument as this provision deals with the prorogation, not derogation, of jurisdiction of the Scottish courts, and a foreign jurisdiction agreement does not take away jurisdiction from an otherwise competent Scottish court but serves as a significant factor when deciding whether jurisdiction should be exercised. The court did not engage with these subtleties of Scottish private international law. It promptly dismissed this jurisdictional challenge by concluding, quite rightly, that the contract clause in question (“9. Industrial Sickness: The terms of the relevant national legislation shall apply.”) was not a choice-of-court agreement.

A glaring omission in the judgment is the court’s failure to acknowledge that in employment disputes the jurisdiction of the UK courts depends on sections 15A and C-E of the 1982 Act. These provisions transpose the jurisdictional rules for employment matters from the Brussels I bis Regulation into UK law. Consequently, the Scottish courts had jurisdiction over the Scottish-domiciled defendant (section 15C(2)(a)) and a choice-of-court clause in the employment contract could not deprive the claimants of this forum. The protective jurisdictional rules may be departed from only by an agreement made ex post or expanding the available forums for the employee (section 15C(6)). In other words, there was no need to even look at the dispute resolution clause for the purposes of addressing the first jurisdictional challenge.

The court then proceeded to consider forum non conveniens. The defendant contended that a no-fault compensation scheme established by the Work Injury Benefits Act 2007 in Kenya barred claims for damages, insisting that the claimants should pursue compensation under this scheme.

A preliminary question remained unaddressed: is forum non conveniens available when a UK court has jurisdiction over an employment dispute under section 15C?

The primary aim of sections 15A and C-E was, as articulated in the Explanatory Memorandum accompanying a statutory instrument which was used to transpose the jurisdictional rules for employment matters from Brussels I bis into UK law, “to ensure employees are not disadvantaged by EU exit”. Prior to Brexit, jurisdiction under Brussels I bis was mandatory (Owusu). There are other reasons against the availability of forum non conveniens in this context. It may be inconsistent with the objective of employee protection (for the strength of this objective under sections 15A and C-E, see, for example, Gagliari v Evolution Capital Management). If a foreign choice-of-court agreement can only be effective if made ex post or if it expands the available forums for the employee, allowing forum non conveniens, which is normally a less strong reason for staying proceedings, might seem contradictory. Sections 15A and C-E allow the employee to serve the claim form on the employer as of right in England, eliminating the need to seek permission to serve the claim form out of the jurisdiction. It appears inconsistent not to require the claimant to show that the forum is forum conveniens in service out cases, but to allow the defendant to plead forum non conveniens. Consequently, it is unsurprising that leading scholars (A Briggs, Private International Law in English Courts (2nd edn, OUP 2022) 194 and L Merrett, Employment Contracts and Private International Law (2nd edn), OUP 2022) 165) suggest that forum non conveniens might not be available in this context.

On the other hand, section 49 of the 1982 Act unequivocally provides that “Nothing in this Act shall prevent any court in the United Kingdom from staying, sisting, striking out or dismissing any proceedings before it, on the ground of forum non conveniens or otherwise, where to do so is not inconsistent with the 2005 Hague Convention.” Additionally, there is the authority of Dicey, Morris and Collins, who, in para 12-012, adopt a tentative view that forum non conveniens is available when a UK court has jurisdiction over an employment dispute under section 15C.

It is a shame that the court did not address this preliminary question of the availability of forum non conveniens.

The Lord Ordinary (first instance judge) decided, relying on expert evidence, that the Kenyan Work Injury Benefits Act 2007 did not apply to the claimants because it did not list back injury as a condition for the no-fault compensation scheme. Although the Act did allow for the possibility of the responsible official listing new conditions, no such decision had been made. He further rejected the plea of forum non conveniens because he decided that the claimants would not obtain justice in the Kenyan courts.

The Inner House disagreed. It found that the Act applied to the claimant’s occupational injuries. It further noted that the no-fault compensation scheme “is said to work well and is cost and lawyer free” ([67]). On the basis of all of this, the court held, at [69], that:

Having regard to the court’s construction of the WIBA, the appropriate manner of proceeding is to sist these proceedings pending resolution of the claims under the WIBA, including any appeals to the [Employment and Labour Relations Court], in Kenya. If the court’s construction, or its understanding of the practical operation of the WIBA, turn out to be ill-founded, or if the WIBA claims were not determined in accordance with the scheme, or if there were to be excessive delay, the court may have to revisit the question of substantial justice and consider whether the sist should be recalled. However, the court cannot determine, as matters presently stand, that the WIBA, if it operates as its terms suggest, is not capable of providing substantial justice. The concept of such justice applies to both parties and envelops the general public interest.

Leaving aside the point that the court invoked here a public interest factor, which sits uneasily with the House of Lords decision in Lubbe v Cape Plc, one gains the impression from this paragraph that the court applied a kind of conditional forum non conveniens doctrine.

But then one reads the next paragraph, where the court said that it was not applying forum non conveniens:

The court will recall the interlocutor of the Lord Ordinary dated 11 July 2023 in so far as it repels the defenders’ second plea-in-law (on forum non conveniens). It will allow the reclaiming motion and sist the group proceedings (GP1/22) pending resolution of the group members’ claims in Kenya under the WIBA scheme. It will not determine the plea of forum non conveniens at present.

One is at a loss what to make of this. The court evidently exercised a form of inherent power to sist the proceedings. But there is no attempt to explain the origin or nature of this power or its interaction with forum non conveniens.

All of this amounts to a very confusing (and confused) judgment. Hopefully, the case will find its way to the Supreme Court. The case is just too important to be decided in this way.

 

— I am grateful to Professor Adrian Briggs and Professor Louise Merrett for sharing their insights regarding the availability of forum non conveniens when a UK court has jurisdiction over an employment dispute under section 15C of the 1982 Act. Additionally, I extend my gratitude to Dr Bobby Lindsay for explaining specific points of Scottish law and for sharing a case note on the first instance judgment in this case, which will be published in the January edition of the Edinburgh Law Review. Finally, I thank Andrew Smith KC and Cameron Smith, who clarified some aspects of this litigation and offered thoughts on the likelihood of obtaining permission to appeal to the UK Supreme Court. Any mistakes or omissions in this post are solely mine.

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