AI systems and non-contractual liability: A European Private International law analysis

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Benedetta Cappiello from the University of Milan has recently published a book on European private international law and non-contractual liability for AI systems (AI Systems and Non-contractual Liability: A European Private International Law Analysis, Giappichelli 2022: https://www.giappichelli.it/media/catalog/product/excerpt/9788892143289.pdf). She has kindly provided us with the following abstract:

The advent of AI-systems has fundamentally altered the whole of society and is about to change our daily lives as well as relationships between private parties.

The current challenge for the legislator is to determine a clear legal framework able to firstly, guarantee continued technological development and secondly, to be integrated with already binding sources of law. Whether the said framework will correspond to an already existing one, adapted to AI-systems, or whether it will be an ad hoc framework is still to be scrutinized. What is certain is that the challenge to determine a legal framework assumes a cross-border connotation: only common and shared choices at the supranational level will guarantee the definition of a coherent and effective discipline.

Within the said framework, the present book focuses on the non-contractual obligations which arise within the European Union out of the development and use of AI-systems; more precisely, as for the civil liability regime the advent of AI is about to lead to a paradigm shift in the allocation of liability throughout the “production chain”. Namely, the question has become how to ascertain who is liable for what; the opacity of AI-systems – especially those engaging with machine learning techniques – can make it extremely difficult to identify who is in control and therefore responsible.

Both EU substantive and private international law (“PIL”) provisions on civil liability, in general, and on product liability in particular, are scrutinized, following an approach de lege lata and de lege ferenda.

The concluding remarks integrates the results reached in the analysis and ethical considerations. Both substantive and PIL provisions should be ethically oriented and abide, and ensure, the protection of fundamental rights; private international law shall be an effective instrument for reaching the results pursued by the corresponding substantive provisions. Accordingly, this book will conclude suggesting anew direction of European private international law provisions; as per AI-systems field, it might be time the European legislator accepts connecting factors oriented more towards human rights protection.

EAPIL founding conference 2022 in Aarhus

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Written by Christian Rüsing, University of Münster

From 2 to 4 June 2022, the founding conference of the European Association of Private International Law (EAPIL) took place in Aarhus. After the idea of founding the association had emerged at a conference in 2018 and its incorporation in 2019, it offered an opportunity to discuss fundamental issues of private international law in Europe with about 150 participants.

In his keynote speech at the kick-off event on Thursday, Peter Arnt Nielsen (Copenhagen Business School) outlined the development of the institutional framework and its significance for European conflict of laws. Andreas Stein (European Commission) addressed current legislative projects in his report from Brussels. Particularly, he highlighted the recently published Directive proposal on “Strategic lawsuits against public participation” (SLAPPs). Subsequently, drawing inspiration from AG Maciej Szpunar’s report from Luxembourg on current fundamental rights issues in private international law, the conference especially discussed the significance of the EU Charter of Fundamental Rights with great enthusiasm, including SLAPPs and the recognition of foreign judgments.

On Friday morning, the presentations and discussions concentrated on digitalisation, with particular attention to platforms, blockchains, the transfer of digital assets and the digital resolution of cross-border disputes. Several speakers and participants addressed the challenging question of the extent to which new technologies require special treatment in private (international) law. In the afternoon, the focus was on the phenomenon of fragmentation in European private international law, which led to a lively debate on the need for a coherent general instrument or codification of EU conflict of laws. After the speakers had expressed themselves rather neutrally or even partly positively on the phenomenon, several participants in the discussion spoke rather in favour of stronger coordination.

The questions of fragmentation and need for reforms also arose on Saturday, when issues of international family law, succession law and property law were dealt with. Now, however, it was more a question of concrete issues of demarcation, such as those that can arise between matrimonial property law and property law. With regard to international family law, the role of religious laws in private international law and parental responsibility in cross-border cases was discussed as well.

At the general assembly, the association’s past and future activities and participation opportunities for members in seminars, working groups and a Young Researchers Network were presented. The Secretary General, Giesela Rühl (Humboldt-University of Berlin), was happy to announce that the association already had 389 members from 63 countries. Since practitioners can also become members, the association fosters the exchange between science and practice, which was clearly seen at the conference in several contributions to the discussion on the user-friendliness of European legal acts. Further information on the EAPIL can be found here.

All in all, the conference offered – also thanks to the organisation by Morten M. Fogt (University of Aarhus) and his team – an excellent opportunity for academic exchange, which so many participants missed in recent years. The full program of the conference and an overview of the speakers are available here.

First Issue of Journal of Private International Law for 2022

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The first issue of the Journal of Private International law for 2022 was released yesterday. It features the following articles:

 

M Lehmann, “A new piece in the puzzle of locating financial loss: the ruling in VEB v BP on jurisdiction for collective actions based on deficient investor information”

For the first time, the CJEU has ruled in VEB v BP on the court competent for deciding liability suits regarding misinformation on the secondary securities market. Surprisingly, the Court localises the damage resulting from misinformation on the secondary financial markets at a single place, that where the financial instruments in question were listed. This raises the question of how the decision can be squared with earlier cases like Kolassa or Löber and other precedent. It is also unclear how the new ruling applies to special cases like dual listings or electronic trading venues. Furthermore, the judgment is of utmost importance for the jurisdiction over collective actions by postulating that they should not be treated any differently than individual actions, without clarifying what this means in practice. This contribution analyses these questions, puts the judgment in larger context, and discusses its repercussions for future cases.

 

F Rielaender, “Financial torts and EU private international law: will the search for the place of “financial damage” ever come to an end?”

The determination of jurisdiction and the applicable law concerning violations of financial law remains one of the most controversial subjects in EU private international law. Departing from its previously wayward case law regarding jurisdiction in disputes concerning purely financial losses, the Court of Justice of the European Union (CJEU) has finally taken a more principled approach in its Verenigeng van Effectenbezitters (VEB) decision, concentrating jurisdiction for actions based on issuer liability for inaccurate disclosures in the courts of the Member States where the issuer “has complied, for the purposes of its listing on the stock exchange, with the statutory reporting obligations”. While the judgment marks a necessary step forward, this paper argues that a market-oriented rule, which the CJEU has thus far not fully embraced, for conferring jurisdiction in disputes concerning infringements of securities law needs to be further developed and consistently applied in determining the applicable law.
This article examines the private international law and substantive liability issues in tort claims against UK based parent companies for the actions of their foreign subsidiaries. Arguments drawn from private international law’s largely untapped global governance function inform the analysis and the methodological pluralism manifested in the jurisdictional and choice of law solutions proposed. The direct imposition of duty of care on parent companies for torts committed by foreign subsidiaries is examined as an exception to the bedrock company law principles of separate legal personality and limited liability. In this regard, the UK Supreme Court’s recent landmark decisions in Vedanta v Lungowe and Okpabi v Shell have granted jurisdiction and allowed such claims to proceed on the merits in the English courts. This article assesses these decisions and their significance for transnational corporate accountability. The post-Brexit private international law regime and its implications for the viability of tort claims against parent companies are examined.
In 1992, the Hague Conference on Private International Law (HCCH) commenced the Judgments Project with the aim of delivering a convention harmonising rules of jurisdiction and recognition and enforcement of judgments. Despite the ambition and promise the project held, the first major attempt at delivering a convention, the 2001 Interim Text, was unsuccessful after it failed to gain consensus among the Conference’s Member States. The HCCH scaled back the Judgments Project to focus work on the 2005 Convention on Choice of Court Agreements and the 2019 Convention on the Recognition and Enforcement of Foreign Judgments. However, the issue of jurisdiction has not been forgotten, with the Hague having recently established a Working Group to begin drafting provisions for a fresh attempt at the subject which hopefully will succeed where the Interim Text did not. The aim of this article is to explore the issue of how the proposed convention shall address conflicts of jurisdiction in international litigation. A conflict of jurisdiction will typically arise where the same proceedings, or related ones, come before the courts of several fora, or in one forum which considers another forum to be better placed to adjudicate the dispute. One solution to such conflicts is the, originally Scottish, doctrine of forum non conveniens, which allows a court discretion to decline to exercise jurisdiction on the basis that the appropriate forum for the trial is abroad or the local forum is inappropriate. This article argues for the inclusion of a version of forum non conveniens in the proposed jurisdiction convention to settle these conflicts when they arise. However, as there are many interpretations of what makes one forum more or less appropriate to hear a case than another, this article tackles the issue of how such a principle could be drafted to achieve consensus at the Hague Conference. Much of this analysis is based on the original 2001 Interim Text, and upon more modern cross-border agreements which utilise forum non conveniens.
Substituted service is an important and frequently used method to bring judicial documents to a defendant’s attention when service of process in the manner otherwise required by the civil procedure rule is impracticable. Between substituted service and the Hague Service Convention 1965 exists a tension: as the scope of substituted service expands, the application of the Convention shrinks. The tension predated the pandemic but has become increasingly acute as Australian courts have frequently been called upon to address when substituted service may be ordered to replace service under the Convention. Addressing this tension is significant but complex as it involves Australia’s international obligation to follow the Convention, a plaintiff’s legitimate expectation to quickly effect service of process, and a defendant’s fundamental right to due process. This paper is a digest of Australian private international law on substituted service. It provides timely proposals both at the domestic and international dimensions to address this tension.
The Article provides an insight into the development of the Russian rules of law concerning recognition of foreign judgments on personal status. The analysis reveals that initially the Russian (formerly Soviet) law did not include any specific provisions relating to recognition of foreign judgments on personal status. In this regard such judgments were recognised on the basis of the conflict of laws’ provisions of the Family and Civil Codes. In turn the current Article 415 of the Civil Procedure Code of the Russian Federation addressing the recognition of foreign judgments on personal status and foreign divorces should be considered as a borrowing from the legislation of the former Socialist countries. The authors argue that the concept of “personal status” in Article 415 covers both foreign judgments affecting capacity and regarding filiation (kinship). Therefore, these foreign judgments shall be recognised in Russia in absence of an international treaty and without exequatur proceedings.

Update: 4th International Class Action Conference, Amsterdam, 30 June to 1 July 2022

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Update from the organizers:

“Thanks to the generosity of our sponsors we are able to offer a limited number of participants a partial waiver of the conference. If you work in the not-for-profit sector (academia, ngo’s, judiciary or other government institutions) you can contact the conference bureau (conference@uva.nl) to check for eligibility. The reduced fee will be the same as the one for students and PhD fellows.”

 

For all those interested in the various aspects of collective redress, including cross border issues (in securities and competition cases), the 4th International Class Action Conference held as an on-site conference in Amsterdam provides an excellent opportunity to discuss current issues and share your own experiences. The international conference is co-organized, inter alia, by the University of Amsterdam (The Netherlands), University of Haifa (Israel) and Tilburg University (The Netherlands) and described as follows:

”

4th International
Class Action Conference

Amsterdam, 30 June – 1 July 2022

 

On 30 June and 1 July 2022 the University of Amsterdam will host the 4th international class action conference. The conference is organized by a team from the University of Haifa, the University of Tilburg and the University of Amsterdam, in collaboration with several renowned institutions. The theme of this year’s conference is ‘From Class Actions to Collective Redress: Access to Justice in the 21st century’.

The Conference will bring together a diverse range of international expertise in collective redress. The conference is intended to act as a forum for the sharing of experiences and knowledge. In an increasingly interconnected world, such opportunities for international scholars and practitioners to come together and compare notes on the development of collective redress in their jurisdictions, are more relevant than ever.

For details on the programme and a full list of collaborators, please see 4th International Class Action Conference – Home (aanmelder.nl).”

 

There are different registration fees for commercial participants (500 EUR) and academics/judges/NGOs (300 EUR) as well as a reduced charge for (PhD) students (75 EUR).

LEX & FORUM, VOLUME 1/2022

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With this present issue, Lex & Forum enters its second year of publication. The first four issues of the previous year were dedicated to the fundamental and most current issues of European private/procedural international law: the judicial cooperation after BREXIT (1st issue), the impact of 40 years since Greece joined the European Union to the internal Procedural Law (2nd issue), the importance of private autonomy in European private/procedural international law (3rd issue) and the accession of the European Union to the Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters 2019 (4th issue). During the second year, the focus of the issues will now be shifting to individual disputes, influenced by European  procedural or private international law. The focus of the present issue refers to maritime differences, which are particularly important for our country. As data shows, while the population of Greece represents only 0.15% of the world population, the Greek-owned ships represent almost 21% of the world tonnage and 53% of the EU merchant fleet. Greek shipowners lead the world rankings in ship ownership with 17% for 2021, compared to colossal countries in terms of population and economy, such as China (15%) and Japan (12%) (data: IUMI 2021). Under these circumstances, maritime differences at the European and global scale are a particularly crucial chapter for our country’s economy and fully justify the involvement of this focus on this issue.

The ‘Praefatio’ of this Lex&Forum issue has the great honor of hosting the valuable thoughts of the former President of the CJEU (2003-2015), Prof. Vassilios Skouris, on the topic of mutual trust and recognition as key pillars of the European Union. The main topic of the issue (Focus) is dedicated to maritime disputes and was initially presented at an online event, on the 21st of February 2022, in collaboration with the most competent bodies on the subject, the Piraeus Court of First Instance and the Piraeus Bar Association (<https://www.sakkoulas.gr/el/info/events/archive/lex-forum-oi-navtikes-diafores-ston-evropaiko-kai-ton-pagkosmio-charti/>). The Focus in this issue incorporates the contribution of the Professor at the HSB Hochschule Bremen Ms. Suzette Suarez on arrest of ships in cases of environmental damages, the presentation of the Professor at  the University of Athens and Chair of the meeting Ms. Lia Athanassiou, regarding the treatment of foreign shipping companies by the Greek jurisprudence, and the ones of the Judges who served in the Mari­time Department of the Court of Piraeus, Mr. Antonios Alapandas, PhD, Judge at the Court of Appeal, on the special jurisdictional bases of maritime disputes, and Mr. Kyriakos Oikonomou, former Judge of the Supreme Court, on the choice of court agreements in maritime disputes, as well as the contributions of the Judge Mr. Antonios Vathrakokilis, on the applicable law to maritime privileges, and, finally, of Mr. Georgios Theocharidis, Professor of Maritime Law and Politics at the World Maritime University in Malmö, Sweden, on the International Convention on the ‘Judicial Sale of Ships’. Lex&Forum expresses its warmest thanks to the President of the Courts of First-Instance of Piraeus Council Judge Mr. Vassilios Tzelepis and the President of the Piraeus Bar Association Mr. Elias Klappas, as well as to all the rapporteurs for their honorable contributions.

The jurisprudence section of this issue includes the CJEU judgments, 15.7.2021, European Commission v. Poland, on the topic of national regulations restricting the independence of judges, with commentary by the scientific associate in the International Hellenic University Ms R. Tsertsidou, 7.5.2020, LG/Rina, on the concept of civil and commercial matters in case of an action against a ship classification and certification body under the authority of a third state, with a commentary by Dr. N. Zaprianos, 1.7.2021, UE, HC, on a European Certifi­cate of Succession of ‘indefinite time’, with commentary by Dr. S. Karameros, and 4.6.2020, FX/GZ, on international jurisdiction for the adjudication of the opposition against the execution of a maintenance claim, with commentary by the President of the Court of First Instance Mr. A. Vathrakokilis.

The national case law section features the following judgments:  Court of First Instance Piraeus No 3296/2020, on the appointment of an Interim Administration of a Shipping Company with a registered office abroad, with commentary by the PhD Cand. Ms. A. Lagoudi; Court of First Instance Korinthos No 1/2022, on the topic of parental care and maintenance of an out-of-marriage minor by parents of foreign citizenship, with commentary by Dr. G.-A. Georgiadis; Supreme Court decision No 1127/2020, on the applicable law on limitation periods in case of a lawsuit of an insurance company against a carrier, with commentary by Dr. A. Anthimos.

The issue includes as well the legal opinion of Professor Emeritus at the University of Athens Mr. Nikolaos Klamaris on the international jurisdiction of the Court of Piraeus (Department of Maritime Disputes) on a tort, committed in Piraeus by defendants based in Asia, while in the column L&F Praxis, the Judge Mr. Georgios Safouris presents the main practical problems of the referral questions to the CJEU within 11 Q&As.

Lex&Forum renews its scientific appointment with its subscribers for the next issue, focusing on the Internet and other emerging technologies within the EU and International legal order.

 

The eighth EFFORTS Newsletter is here!

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EFFORTS (Towards more EFfective enFORcemenT of claimS in civil and commercial matters within the EU) is an EU-funded Project conducted by the University of Milan (coord.), the Max Planck Institute Luxembourg for Procedural Law, the University of Heidelberg, the Free University of Brussels, the University of Zagreb, and the University of Vilnius.

The eighth EFFORTS Newsletter has just been released, giving access to up-to-date information about the Project, save-the-dates on forthcoming events, conferences and webinars, and news from the area of international and comparative civil procedural law.

The EFFORTS Final Conference will take place on Friday, 30 September 2022. On that occasion, the Project Partners’ research groups will present the outcomes of the Project; increase awareness of the EFFORTS Regulations (Brussels Ia, European Enforcement Order, European Payment Order, European Small Claims Procedure and European Account Preservation Order); and evaluate and discuss the state of the art in EU and national legislation and practices relating to the implementation of the EFFORTS Regulations in the 7 targeted Member States. More details will follow in due course.

Regular updates are available on the Project website and via the Project’s LinkedIn and Facebook pages.

Project JUST-JCOO-AG-2019-881802
With financial support from the Civil Justice Programme of the European Union

HCCH Monthly Update: May 2022

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Meetings & Events

From 17 to 19 May 2022, the First Meeting of the Special Commission on the 2007 Child Support Convention and 2007 Maintenance Obligations Protocol was held in The Hague in hybrid format, attended by over 200 delegates representing HCCH Members, Contracting Parties and Observers. More information is available here. The meeting resulted in the adoption of over 80 Conclusions & Recommendations, providing guidance to (prospective) Contracting Parties on a wide range of issues relating to the implementation and practical operation of these instruments. More information is available here.

 

Publications & Documentation

On 25 May 2022, the Permanent Bureau announced the launch of the post-event publication of HCCH|Approach, “Advancing and Promoting the Protection of All Children”, an HCCH initiative organised in celebration of the 25th anniversary of the HCCH 1996 Child Protection Convention. More information is available here.

 

Upcoming Events

Registrations are now open for the upcoming Conference on Conflicts of Jurisdiction, organised by the Journal of Private International Law and the Singapore Management University, with the support of the HCCH. The conference will be held online on 23 and 24 June 2022. More information is available here.

The inaugural CODIFI Conference will be held online from 12 to 16 September 2022. CODIFI will examine issues of private international law in the Commercial, Digital, and Financial (CODIFI) sectors, highlighting developments in the digital economy and fintech industries as well as clarifying the roles of core HCCH instruments: the 1985 Trusts Convention, the 2006 Securities Convention, and the 2015 Choice of Law Principles.?More information is available here.

 

These monthly updates are published by the Permanent Bureau of the Hague Conference on Private International Law (HCCH), providing an overview of the latest developments. More information and materials are available on the HCCH website.

What’s New in EU Family Law?

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EU Family Law Conference Banner

 

What’s new in EU family law?

High-level conference on the Brussels IIb Regulation

8 September 2022 13h-16h CET

Hybrid Conference – European Parliament Brussels and Online

Hosted by

Ewa Kopacz

Vice President and European Parliament Coordinator on Children’s Rights

and

Didier Reynders

Commissioner for Justice

Please click here to register and to view the draft conference programme.

 

This high-level conference aims to draw attention to the novelties and important changes introduced by the Brussels IIb Regulation, which enters into application on 1 August 2022, and to provide a forum for an exchange of views with legal practitioners on cross-border family disputes involving children in the European Union.

The conference will provide participants with an opportunity to hear from experts in EU family law on the key changes to the Regulation and to engage in a moderated discussion on the topic through a Q & A session.

The event will be hosted online with the limited possibility to participate in person in Brussels*. Interpretation of the conference will be provided in 10 languages (DE, EN, FR, IT, EL, ES, PT, PL, BG, RO).

*Participation in this event is free. Please note that persons planning to attend this event in the European Parliament in Brussels do so at their own expense.

Virtual Workshop (in English) on June 7: Rosario Espinosa Calabuig on Sorority, Equality and Private International Law

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On Tuesday, June 7, 2022, the Hamburg Max Planck Institute will host its 23rd monthly virtual workshop Current Research in Private International Law at 11:00-12:30 CEST. Rosario Espinosa Calabuig (Universidad de Valencia) will speak, in English, about the topic

“Sorority, Equality and Private International Law“.

Gender perspective in Private International Law (PIL) can be claimed through the so-called Sorority: Solidarity between women against sexual discrimination. PIL becomes an ethical tool to fight for solidarity and against phenomena such as misogyny and sexism, among others. Different topics (such as application of Islamic law by national authorities, child abduction in cases of gender violence or transnational surrogacy) show how PIL can be a tool to promote equality rights and how sorority can reinforce this equality. So, there is a reciprocal influence between all of them.

The presentation will be followed by open discussion. All are welcome. More information and sign-up here.

If you want to be invited to these events in the future, please write to veranstaltungen@mpipriv.de.

Webinar: ‘Strategic Climate Change Litigation in the EU: Between Judicial Restraint and Proactive Judicial Policy’ 

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Webinar series: ‘Crossroads in Private International Law’
First webinar: ‘Strategic Climate Change Litigation in the EU: Between Judicial Restraint and Proactive Judicial Policy’
The Aberdeen Centre for Private International Law invites you to a webinar titled ‘Strategic Climate Change Litigation in the EU: Between Judicial Restraint and Proactive Judicial Policy’. It is the first webinar within the Centre new webinar series ‘Crossroads in Private International Law’. The event will be delivered by Nevena Jevremovic, Honorary Lecturer at the Aberdeen School of Law and moderated by Professor Guillaume Laganière from the Université du Québec à Montréal (UQAM). The webinar will be held on Wednesday 01 June 2022, 4-5pm UK time, through MS Teams.  Click here for more information and registration