Written by Ekaterina AristovaPhD in Law Candidate, University of Cambridge

On 14 October 2017, the London’s Court of Appeal passed its long awaited decision in Lungowe v Vedanta confirming that foreign citizens can pursue in England legal claims against English-based multinationals for their overseas activities.

In 2015, Zambian villagers commenced proceedings against Vedanta, an English-based mining corporation, and its indirect Zambian subsidiary, KCM, alleging responsibility of both companies for the environmental pollution arising out of the operation in Zambia of the Nchanga Copper Mine by KCM. In 2016, the High Court allowed claims against both companies to be heard in England. The overall analysis of the judgement (see the author’s earlier post on this blog) suggested that (1) claims against the parent company on the breach of duty of care in relation to the overseas operations of the foreign subsidiary can be heard in the English courts and (2) the existence of an arguable claim against the English-domiciled parent company also establishes jurisdiction of the English courts over the subsidiary even if the factual basis of the case occurs almost exclusively in the foreign state. The Court of Appeal has entirely upheld a High Court ruling.

Vedanta has focused their argument on the fact that Article 4 of the Brussels I Regulation Recast does not automatically allow an English-domiciled parent company to be sued in England and, despite the CJEU’s ruling in Owusu v Jackson, there is always discretion as to whether the English court should allow the claims to be tried in England. In response, the three appeal judges were very clear in confirming the univocal effect of Owusu decision which precludes English courts from declining a mandatory jurisdiction to try claims against the English-domiciled defendant. Logically, analysis further moved to KCM’s applications. KCM as a foreign defendant was brought into proceedings on the basis of a ‘necessary or proper party’ gateway under the English traditional rules of jurisdictions. It allows service out of the jurisdiction subject to two additional conditions: (1) there is between the claimant and English-domiciled defendant a real issue which it is reasonable for the court to try; and (2) England is the proper forum for trying the claims. Unsurprisingly, an initial question of whether uncustomary claims alleging liability of the local parent company for overseas damages are viable in England was a major stumbling block for the corporate defendants.

First of all, Lord Justice Simon, who delivered a leading judgement, confirmed that absence of the reported cases on the breach of duty of care by the parent company owed to the persons affected by its subsidiary’s operations does not automatically render such a claim unarguable. He then relied on several well-known English cases to derive basic principles for the imposition of such duty of care on the parent company: (1) The three-part test of foreseeability, proximity and reasonableness set out in Caparo Industries Plc v Dickman constitutes a starting point of the analysis; 2) A duty of care may be owed, in appropriate circumstances, to the employees of the parent company and those directly affected by the subsidiary’s operations; 3) Such a duty of care arises when the parent company has taken direct responsibility for devising a material health and safety policy the adequacy of which is the subject of the claim, or controls the operations which give rise to the claim; 4) Some of the circumstances in which the existence of the duty of care may, or may not, be established can be traced in Chandler v Cape and Thompson v The Renwick Group; 5) It is necessary to determine whether the parent company was well placed, because of its knowledge and expertise to protect the claimants; proving that parent company and the subsidiary run the same business is not sufficient; (6) The evidence sufficient to establish the duty may not be available at the early stages of the case. Following these principles, it was concluded that, irrespective of the strength or the weakness of the claim against the parent company (as opposed to the claim against the subsidiary as an operator of the mine) and in light of the supporting evidence already presented by the claimants, the claim against Vedanta cannot be dismissed as not properly arguable.

The Court of Appeal’s decision is particularly interesting for two reasons. The first issue relates to how its conclusions should be approached in the context of similar environmental litigation against English-based multinational in Okpabi v Shell. Earlier this year, Fraser J, sitting as a judge in the Technology and Construction Court, ruled that a claim against English-based parent company and the Nigerian subsidiary of the Shell group for oil pollution in Nigeria will not proceed in the English courts. The judge himself did not make any conclusions which would question the ultimate decision reached by the two instances in Lungowe v Vedanta. More importantly, his analysis fairly suggests that determination of the parent company liability should be approached on a case-by-case basis weighing the particular characteristics of the corporate organisation of the group and the nexus between the parent company and its subsidiaries (see the author’s earlier post on this blog). Nevertheless, the reasoning of Fraser J could be criticised for the scrupulousness of identifying whether sufficient evidence on each factor of the duty of care test was presented by the claimants at such an early stage of the proceedings. The jurisdictional inquiry into existence of an arguable claim against the parent company should not substitute the determination of the substantive argument and the trial itself. This approach was rightly emphasised by the Court of Appeal in Vedanta. By contrast, thorough analysis of the liability argument carried by Fraser J in Okpabi v Shell is arguably very close to the resolution of the case on the merits. The decision was appealed by the claimants, the Nigerian citizens, on these very grounds.

The second set of issues arises from the Court of Appeal’s reluctance to engage in the discussion of the regulatory significance of the litigation against major transnational corporations for their overseas operations in the English courts. In the course of appeal’s hearing Vedanta argued that allowing cases against English multinationals in their home state was not in the public interest. The judgement itself refrained to consider whether public interest factors have any impact on the jurisdictional inquiry in the disputes concerned with the private interests of the litigants. Therefore, foreign direct liability claims against powerful corporate groups were placed in the context of conventional theoretical public/private divide of the rules of private international law. The Parliament and the Government have at least twice engaged into discussion of the UK role in promoting responsibility and ensuring accountability of its companies in the course of 2009 and 2017 human rights and business inquiries. Further increase in the number of legal claims against English-based transnational corporations brought by the foreign citizens in the English courts may revive interest in the role of the discipline of private international law to take part in the global governance debate.

 

 

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Child Focus, the University of Antwerp, Center IKO, CFPE-Enfants Disparus, Missing Children Europe and the French Central Authority invite you to the final conference of their research project, EWELL, co-funded by the European Commission.

The project partners conducted a large scale research study on the psychological effects of  international child abduction on the well-being of abducted children. Their results will be presented at the final conference. This will be conbined with workshops on topics of psychology and law (including Brussels IIa).

The full programme is available here.

This conference is free of charge, but registration is required.

Travel and accommodation expenses will not be reimbursed.

 

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Postdoctoral fellowships in commercial private international law / international commercial law are available at the Research Centre for Private International Law in Emerging Countries at the University of Johannesburg.

See the application form here.

The submission link is here.

The closing date is 31 October 2017.

For administrative enquires: Ms Dudu Mbatha rdmbatha@uj.ac.za

For academic enquiries: Prof Jan Neels jlneels@uj.ac.za

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On Saturday, October 7, Professor Bertrand Ancel’s Éléments d’histoire du droit international privé , already presented here, was awarded the Prix du livre juridique at the Salon du livre juridique du Conseil Constitutionnel.

As Professor Ancel said in his thank you speech, Éléments d’histoire du droit international privé is the fruit of more than fifteen years of teaching in the history of private international law. Bertrand Ancel was an associate in private law and criminal sciences, specializing in civil law, comparative private law and private international law, but was not prepared to teach legal history. He has devoted himself to the writing of these Éléments out of passion for an area whose knowledge embraces both Greco-Roman Antiquity and the Middle Ages and the contemporary world. Written on the eve of the twenty-first century, the book is an extension of the great works in French by Armand Lainé, Eduard Maurits Meijers and Max Gutzwiller prior to the Second World War, to which Elements of History of Private International Law pays tribute. Thus aggregated, Éléments give an innovative view of the history of private international law.

Provided with appendices and an extensive bibliography, this work of more than six hundred pages allows to read “l’inlassable réflexion doctrinale et les leçons d’une expérience sans cesse renouvelée des cas concrets”. It is dedicated especially to master’s students to whom this reflection offers a look at the positive data – essentially case law- and doctrinal constructions. Without history, it remains difficult to understand all the subtleties of private law: “la démarche historique restitue l’expérience” and “l’histoire est ici encore plus qu’ailleurs l’antidote du dogmatisme et l’indispensable auxiliaire de qui entreprend de connaître le droit international privé d’aujourd’hui”. The reader will also find the most important judicial decisions and the most significant doctrinal comments.

Source: Université Paris II (Panthéon-Assas)

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(I am grateful to Prof. Fabrizio Marongiu Buonaiuti for providing this presentation of the Macerata conference)

The European Documentation Centre (EDC) established at the Department of Law of the University of Macerata is hosting a Conference (in Italian) on Wednesday, 25th October 2017, as part of a programme of initiatives launched by the European Commission’s Permanent Representation to Italy for celebrating the 60th Anniversary of the Treaties of Rome: “60 anni di libertà di circolazione delle persone nell’Unione europea e continuità degli status familiari: la problematica delle unioni civili e delle convivenze” (60 Years of Freedom of Movement of Persons in the European Union and the Continuity of Family Status: Problems concerning Registered Partnerships and Cohabitation).

The Conference deals with the implications for the freedom of movement of persons within the EU of the problems related to the continuity of family status acquired abroad, with particular regard to registered partnerships and cohabitation. A discussion on this topic appears particularly timely, in consideration of the recent adoption by the Italian legislature of both the substantive regulation of registered parterships (unioni civili) and cohabitation (convivenze) under law No. 76 of 20 May 2016, and the relevant conflict of laws rules, as set out in Legislative Decree No. 7 of 19 January 2017. The parallel developments taking place at the European Union level will also be taken into consideration, with particular regard to the recent adoption, by the implementation of an enhanced cooperation, of Regulation (EU) No. 1104/2016, concerning jurisdiction, applicable law and the recognition and enforcement of judgments in matters of the property consequences of registered partnerships.

Here is the programme (available as .pdf; all presentations will be delivered in Italian):

Introductory remarks

  • Prof. Francesco Adornato – Dean of the University of Macerata
  • Prof. Ermanno Calzolaio – Director of the Department of Law

Ist Session: Freedom of Movement of Persons and Continuity of Personal and Family Status

Chair: Prof. Angelo Davì, University of Rome “La Sapienza”

  • Registered Partnerships and Freedom of Movement of Persons in the European Space of Freedom, Security and Justice – Prof. Claudia Morviducci, University of Rome III
  • European Guarantees and Rules concerning Continuity of Status as concerns Same-Sex Marriages and Registered Partnerships – Prof. Francesco Salerno, University of Ferrara
  • Italian Conflict of Laws Rules concerning Registered Partnerships under Legislative Decree No. 7 of 19 January 2017 – Prof. Cristina Campiglio, University of Pavia
  • Private International Law Rules concerning the Property Consequences of Registered Partnerships under Regulation (EU) No. 1104/2016 – Prof. Gian Paolo Romano – University of Geneva

Discussion

2nd Session: The Substantive Regulation of Registered Partnerships and Cohabitation in the Italian Legal System and Unsolved Problems

Chair: Prof. Enrico del Prato, University of Rome “La Sapienza”

  • The Substantive Regulation of Same-Sex Registered Partnerships under Law No. 76 of 20 May 2016 – Prof. Michele Sesta, University of Bologna
  • The Substantive Regulation of Cohabitation under Law No. 76 of 20 May 2016 – Prof. Ubaldo Perfetti, University of Macerata
  • Adoption by Partners of Registered Partnerships – Prof. Enrico Antonio Emiliozzi, University of Macerata
  • Problems Concerning the Registration of Partnerships Created Abroad in the Italian Civil Status Records – Dr. Renzo Calvigioni – National Association of Civil Status Officials

Discussion

Concluding Remarks

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The University of Sydney Law School is hosting a conference on Commercial Issues in Private International Law on 16 February 2018.

The organisers have provided the following information about the conference’s theme:

‘As people, business, and information cross borders, so too do legal disputes. Globalisation means that courts need to invoke principles of private international law with increasing frequency. Thus, as the Law Society of New South Wales recognised in its 2017 report on the Future of Law and Innovation in the Profession, knowledge of private international law is increasingly important to the practice of law.

This conference will bring together members of the judiciary, the profession, academia, and government to discuss private international law as it relates to commercial law. The conversation will be timely. In late 2016, the Uniform Civil Procedure Rules were amended in respect of service outside of the jurisdiction. In 2017, Australia is likely to accede to the Hague Convention on Choice of Court Agreements, and to implement the Hague Principles on Choice of Law in International Commercial Contracts.

The extraterritorial application of the Australian Consumer Law is under consideration by the Full Court of the Federal Court of Australia. While Brexit and the rise of Trump may have signalled a retreat from globalism, arguably, that is not the experience of private international law in Australia.’

Further details are available here: http://sydney.edu.au/news/law/457.html?eventcategoryid=39&eventid=11728

Registration will open and the full conference programme will be released later in 2017.

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The first ruling on Regulation (EU) No 650/2012 was rendered on Thursday 12. These are the facts of the case as summarized by the Court:

Ms Kubicka, a Polish national resident in Frankfurt an der Oder (Germany), is married to a German national. Two children, who are still minors, were born from that marriage. The spouses are joint owners, each with a 50% share, of land in Frankfurt an der Oder on which their family home is built. In order to make her will, Aleksandra Kubicka approached a notary practising in Slubice (Poland).

Ms Kubicka wishes to include in her will a legacy ‘by vindication’, which is allowed by Polish law, in favour of her husband, concerning her share of ownership of the jointly-owned immovable property in Frankfurt an der Oder. She wishes to leave the remainder of the assets that comprise her estate in accordance with the statutory order of inheritance, whereby her husband and children would inherit it in equal shares.

She expressly ruled out recourse to an ordinary legacy (legacy ‘by damnation’), as provided for by Article 968 of the Civil Code, since such a legacy would entail difficulties in relation to the representation of her minor children, who will inherit, as well as additional costs.

On 4 November 2015, the notary’s assistant refused to draw up a will containing the legacy ‘by vindication’ stipulated by Aleksandra Kubicka on the ground that creation of a will containing such a legacy is contrary to German legislation and case-law relating to rights in rem and land registration, which must be taken into consideration under Article 1(2)(k) and (l) and Article 31 of Regulation No 650/2012 and that, as a result, such an act is unlawful.

The notary’s assistant stated that, in Germany, a legatee may be entered in the land register only by means of a notarial instrument containing an agreement between the heirs and the legatee to transfer ownership of the immovable property. Foreign legacies ‘by vindication’ will, by means of ‘adaptation’, be considered to be legacies ‘by damnation’ in Germany, under Article 31 of Regulation No 650/2012. This interpretation is clear from the explanatory memorandum of the German law which amended national law in accordance with the provisions of Regulation No 650/2012 (Internationales Erbrechtsverfahrensgesetz (Law on international succession proceedings), of 29 June 2015, BGBl. I p. 1042).

On 16 November 2015, Aleksandra Kubicka submitted to the notary an appeal pursuant to Article 83 of the Law on notaries against the decision refusing to draw up a will containing such a legacy ‘by vindication’. She claimed that the provisions of Regulation No 650/2012 should be interpreted independently and, in essence, that none of those provisions justify restricting the provisions of succession law by depriving a legacy ‘by vindication’ of material effects.

Since her appeal to the notary was not upheld, Aleksandra Kubicka brought an appeal before the Sad Okregowy w Gorzowie Wielkopolskim (Regional Court, Gorzów Wielkopolski, Poland).

The referring court considers that, pursuant to Article 23(2)(b) and (e) and Article 68(m) of Regulation No 650/2012, legacies ‘by vindication’ fall within the scope of succession law. However, it is uncertain to what extent the law in force in the place where the asset to which the legacy relates is located can limit the material effects of a legacy ‘by vindication’ as provided for in the succession law that was chosen.

Given that, under Article 1(2)(k) of Regulation No 650/2012, the ‘nature of rights in rem’ is excluded from the scope of the regulation, legacies ‘by vindication’, as provided for by succession law, cannot create for an asset rights which are not recognised by the lex rei sitae of the asset to which the legacy relates. However, it is necessary to determine whether that same provision also excludes from the scope of the regulation possible grounds for acquiring rights in rem. In that regard, the referring court considers that the acquisition of rights in rem by means of a legacy ‘by vindication’ is governed exclusively by succession law. Polish legal literature on the matter takes the same position, while the explanatory memorandum of the German draft law on international succession law and amending the provisions governing the certificate of succession and other provisions (Gesetzesentwurf der Bundesregierung, BT-Drs. 17/5451 of 4 March 2015) provides that it is not obligatory, in the context of Regulation No 650/2012, for German law to recognise a legacy ‘by vindication’ on the basis of a will drawn up according to the law of another Member State.

Referring to Article 1(2)(l) of Regulation No 650/2012, the referring court also wonders whether the law governing registers of rights in immoveable or moveable property may have an impact on the effect of a legacy under succession law. In that regard, it states that if the legacy is recognised as producing material effects in matters relating to succession, the law of the Member State in which such a register is kept would govern only the means by which the acquisition of an asset under succession law is proven and could not affect the acquisition itself.

As a result, the referring court considers that the interpretation of Article 31 of Regulation No 650/2012 also depends on whether or not the Member State in which the asset to which the legacy relates is located has the authority to question the material effect of that legacy, which arises under the succession law that has been chosen.

In those circumstances the Sad Okregowy w Gorzowie Wielkopolskim (Regional Court, Gorzów Wielkopolski, Poland) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:

 ‘Must Article 1(2)(k) and (l), and Article 31 of Regulation (EU) [No 650/2012] be interpreted as permitting refusal to recognise the material effects of a legacy ‘by vindication’ (legatum per vindicationem), as provided for by succession law, if that legacy concerns the right of ownership of immovable property located in a Member State the law of which does not provide for legacies having direct material effect?’

 

The CJEU answer is:

Article 1(2)(k) and (l) and Article 31 of Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession must be interpreted as precluding refusal, by an authority of a Member State, to recognise the material effects of a legacy ‘by vindication’, provided for by the law governing succession chosen by the testator in accordance with Article 22(1) of that regulation, where that refusal is based on the ground that the legacy concerns the right of ownership of immovable property located in that Member State, whose law does not provide for legacies with direct material effect when succession takes place.

Conclusions were written by Advocate General Y. Bot and delivered on May 17, 2017; C. Toader acted as Rapporteur.

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Litigación international en la Unión Europea II- Ley aplicable a los contratos internacionales. Comentario al reglamento Roma I (International litigation in the European Union II. The law applicable to international contracts. Commentary to the Rome I Regulation) represents the second issue of a collection of treatises on European private international law.

The first part discusses the role and impact of the New Lex Mercatoria in international trade, with a comprehensive study of the Rome I Regulation on the law applicable to contractual obligations.

In the second part an analysis of more than one hundred international trade contracts is undertaken, with special attention to the structure of each contract and the applicable law. International sale of goods, countertrade, donations, international loan, agency contracts, factoring, confirming, crowdfunding, consulting, due diligence, leasing, supply, construction, deposit, management, outsourcing, catering, cash-pooling, engineering, guarantee contracts, timesharing, fiduciary contracts, franchising, distribution contracts, bank contracts, stock contracts, company contracts, joint venture and many others contracts are examined from a private international law perspective. The book also incorporates specific chapters on international consumer contracts and international labor contracts. Besides, special attention is paid to international insurance contracts.

The third part of the book addresses the international contracts drafting techniques with a focus on clauses which are usually included therein.

Several annexes with the best case-law in the field of international contracts and the most commonly used clauses complement the book.

Publishers: Thomson Reuters Aranzadi, 2017, 897 pages.

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The third issue of 2017 of the Dutch Journal on Private International Law, Nederlands Internationaal Privaatrecht, contains contributions on the consequences of Brexit for the future of private international law in the UK and the EU27, the ex post evaluations of legislative actions in the European Union, the Recast of the Brussels IIa Regulation, and cross-border evidence preservation mesures under Brussels I-bis.

Xandra Kramer, ‘Editorial: NIPR: over Nederlands, Europees en wereldwijd IPR/NIPR: on Dutch, European, and global
PIL’
, p. 407-410.

Jonathan Fitchen, ‘The PIL consequences of Brexit’, p. 411-432.

The UK’s triggering of Article 50 TEU poses problems for the future of private international law in the UK and in the EU27. The UK’s departure from the EU will end the mutual application of European private international law within the UK’s legal systems and will affect the application of that EU law by the EU27 in matters concerning the UK as a new third State. After setting the problem in context, this article provides a political background to the events that led to the Brexit referendum of 2016 and to the UK’s June 2017 general election; thereafter it illustrates certain problems posed by the threat of ‘cliff-edges’ arising as a consequence of a ‘disorderly’ UK exit from the European Union, finally it offers various possibilities concerning the future of private international law in the UK and in the EU. It is argued that if the beneficial aspects of the progress achieved for all European citizens by European private international law are to be salvaged from the Brexit process, both the UK and the EU must each consider most urgently the need for a realistic and undogmatic policy on the future of each other’s private international law that reflects the political reality that, though the UK will soon be a third State relative to the EU27, many natural and legal persons will remain connected with the EU27 despite Brexit. It is argued that each side might usefully consider the unifying goals underlying private international law.

Giesela Rühl, ‘(Ex post) Evaluation of legislative actions in the European Union: the example of private international law’, p. 433-461.

Over the last decades systematic ex post evaluations of legislative actions have become an integral part of the European law making process. The present article analyses the European Commission’s evaluation practice in the field of private international law and offers recommendations for its improvement.

Thalia Kruger, ‘Brussels IIa Recast moving forward’, p. 462-476.

The Brussels IIa Regulation (EC 2201/2003) is currently subject to revision. This is a long and cumbersome process. The European Commission published its report on the Regulation’s operation in April 2014 and its Proposal for a Recast in June 2016. The European Parliament and the Council are currently discussing the proposed amendments. In order for the Recast to be enacted, unanimity in the Council is required. This article discusses some of the issues currently on the table. These include children’s rights, matters of jurisdiction and parallel proceedings in parental responsibility disputes, international child abduction, the abolition of exequatur, the coordination with the 1996 Hague Child Protection Convention, mediation, and information on foreign law.

Tess Bens, ‘Grensoverschrijdend bewijsbeslag’, p. 477-494.

This article analyses whether the revised Brussels I Regulation (‘Recast’) allows the Dutch courts to order provisional measures intended to obtain or preserve evidence located in another Member State. Recital 25 of the Recast explicitly states that the notion of provisional measures includes these type of orders. The author discusses whether Dutch measures to preserve evidence qualify as provisional measures under the Recast. Possible substantive barriers to granting these measures, such as the Evidence Regulation and territorial limitations, are taken into account in making this assessment. The author further argues that there are – in principle – no obstacles for the Dutch courts to order provisional measures aimed at obtaining or preserving evidence located in another Member State. The problems seem to begin at the enforcement stage. To illustrate this point, the author discusses the possibility of coordinating the moment of serving the order and the moment of enforcing the measure in order to retain the element of surprise and the adaptation of the measure for enforcement in France and Germany. As yet there is not a clear answer as to how the enforcement of these kind of measures in a different Member State will function in practice. Moreover, the problems described equally apply to the enforcement of other provisional measures under the Recast and can be expected to give rise to more questions in the future.

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Readers of our blog will recall that Prof. Dr. Andreas Schwartze from the University of Innsbruck will host the final conference of the EU-project “unalex – multilingual information for the uniform interpretation of the instruments of judicial cooperation in civil matters“ in Innsbruck on 24 November  (see our earlier post).

The full and final programme (including information as regards registration and accommodation) is now available here, here, and here.

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