The Pitfalls of International Insolvency and State Interventionism in Slovenia
Written by Dr. Jorg Sladic, Attorney in Ljubljana and Assistant Professor in Maribor (Slovenia)
The most interesting development in European private international law and European insolvency law seems the Croatian AGROKOR case. Rulings of English courts have been reported (see e.g. Prof. Van Calster’s blog, Agrokor DD – Recognition of Croatian proceedings shows the impact of Insolvency Regulation’s Annex A.) However, a new and contrary development seems to be an order by the Slovenian Supreme Court in case Cpg 2/2018 of 14 March 2018. (more…)
Krombach: The Final Curtain
Readers of this blog may be interested to learn that the well-known (and, in many ways, quite depressing) Krombach/Bamberski saga appears to have finally found its conclusion with a decision by the European Court of Human Rights (Krombach v France, App no 67521/14) that was given yesterday. (more…)
Cross-border Human Rights and Environmental Damages Litigation in Europe: Recent Case Law in the UK
Over the last few years, litigation in European courts against gross human rights violations and widespread environmental disasters has intensified. Recent case law shows that victims domiciled in third States often attempt to sue the local subsidiary and/or its parent company in Europe, which corresponds to the place where the latter is seated. In light of this, national courts of the EU have been asked to determine whether the parent company located in a Member State may serve as an anchor defendant for claims against its subsidiary – sometimes with success, sometimes not:
For example, in Okpabi & Ors v Royal Dutch Shell Plc & Anor, the English High Court, Queen’s Bench Division, by its Technology and Construction Court, decided that it had no international jurisdiction to hear claims in tort against the Nigerian subsidiary (SPDC) of Royal Dutch Shell (RDC) in connection with environmental and health damages due to oil pollution in the context of the group’s oil production in Nigeria. To be more specific, Justice Fraser concluded that the Court lacked jurisdiction over the action, inasmuch as the European parent company did not owe a duty of care towards the claimants following the test established in Caparo Industries Plc v Dickman. Under the Caparo-test, a duty of care exists where the damage was foreseeable for the (anchor) defendant; imposing a duty of care on it must be fair, just, and reasonable; and finally, there is a certain proximity between the parent company and its subsidiary, which shows that the first exercises a sufficient control over the latter.
On 14 February 2018, the Court of Appeal validated the first instance Court’s reasoning by rejecting the claimants appeal (the judgment is available here). In a majority opinion (Justice Sales dissenting), the second instance Court confirmed that the victims’ claims had no prospect of success. Nevertheless, Justice Simon provided a different assessment of the proximity requirement: after analysing the corporate documents of the parent company, he observed that RDS had established standardised policies among the Shell group. According to the Court, however, this did not demonstrate that RDS actually exercised control over the subsidiary. At paragraph 89 of the judgment, Justice Simon states that it is “important to distinguish between a parent company which controls, or shares control of, the material operations on the one hand, and a parent company which issues mandatory policies and standards which are intended to apply throughout a group of companies (…). The issuing of mandatory policies plainly cannot mean that a parent has taken control of the operations of a subsidiary (…) such as to give rise to a duty of care”. Therefore, the Court of Appeal set a relatively high jurisdictional threshold that will be difficult for claimants to pass in the future.
Conversely, in Lungowe v Vedanta, a case that involved a claim against a parent company (Vedanta) seated in the UK and its foreign subsidiary for the pollution of the Kafue River in Zambia, as well as the adverse consequences of such an occurrence on the local population, the Court of Appeal concluded that there was a real issue to be tried against the parent company. Moreover, the Court considered that the subsidiary was a necessary and proper party to claim and that England and Wales was the proper place in which to bring the claims. Apparently, this case involved greater proximity between the parent company and its subsidiary compared to Okpabi. In particular, the fact that Vedanta hold 80% of its subsidiary’ shares played an important role. The same can be said as regards the degree of control of Vedanta’s board over the activities of the subsidiary (see the analysis of Sir Geoffrey Vos at paragraph 197 of the Okpabi appeal).
Unsatisfied with the current landscape, some States adopted –or are in the process of adopting– legislations that establish or reinforce the duty of care or vigilance of parent companies directly towards victims. In particular, France adopted the Duty of Vigilance Law in 2017, according to which parent companies of a certain size have a legal obligation to establish a vigilance plan (plan de vigilance) in order to prevent human rights violations. The failure to implement such a plan will incur the liability of parent companies for damages that a well-executed plan could have avoided. In Switzerland, a proposal of amendment of the Constitution was recently launched, the goal of which consists in reinforcing the protection of human rights by imposing a duty of due diligence on companies domiciled in Switzerland. Notably, the text establishes that the obligations designated by the proposed amendment will subsist even where conflict of law rules designate a different law than the Swiss one (overriding mandatory provision). Finally, some other States, such as Germany, propose voluntary measures through the adoption of a National Action Plan, as this was suggested by the EU in its CSR Strategy.
For further thoughts see Matthias Weller / Alexia Pato, “Local Parents as ‘Anchor Defendants’ in European Courts for Claims against Their Foreign Subsidiaries in Human Rights and Environmental Damages Litigation: Recent Case Law and Legislative Trends” forthcoming in Uniform Law Review 2018, Issue 2, preprint available at SSRN.
Chronology of Practice: Chinese Practice in Private International Law in 2020
This post has been prepared by He Qisheng, Professor of International Law, Peking University Law School, and Chairman at the Peking University International Economical Law Institute, has published the 7th Survey on Chinese Practice in Private International Law.
This survey contains materials reflecting the practice of Chinese private international law in 2020. First, regarding changes in the statutory framework of private international law in China, three legislative acts, one administrative regulation on the Unreliable Entity List and ten judicial interpretations of the Supreme People’s Court were adopted or amended in 2020 on a wide range of matters, including conflict of laws, punitive damages, international civil procedure, etc. Second, 11 typical cases involving Chinse courts’ jurisdiction are selected to highlight the development in Chinese private international law, involving standard essential patents, abuse of market dominance, declaration of non-infringement of patent, asymmetric choice of court agreement and other matters. Third, nine cases on choice of law questions relating, in particular, to habitual residence, rights in rem, matrimonial property regimes and ascertainment of foreign law, are examined. Fourth, five cases involving anti-suit injunction or anti-enforcement injunction are reported and one introduced in detail. Fifth, the first occasion for on international judicial assistance of extracting DNA, as well as three representative cases on the recognition and enforcement of foreign judgments, are discussed. The Statistics of international judicial assistance cases in China is first released in this survey. Finally, this survey also covers five recent decisions illustrating Chinese courts’ pro-arbitration attitude towards the uncertainty brought about by contractual clauses referring to both litigation and arbitration.
Here are the links to the article:
· Standard link (you may share this link anywhere):
· Free-access link (see below for how you may use this link):
Table of Contents
II.A. Report on the Work of the SPC in 2020
II.B. Laws and the SPC’s interpretation
II.C. Provisions on punitive damages
III.A. Intellectual property
III.A.i. Jurisdiction over the standard essential patent disputes
III.A.ii. Jurisdiction over the disputes of abuse of market dominance
III.A.iii. Jurisdiction over the giving of declaratory judgment in patent disputes
III.B. Choice of court agreement
III.C.i. An asymmetric choice of court agreement
III.C.ii. Choice of court agreement and hierarchical jurisdiction of the Chinese court system
III.C. Other choices in contracts
- Choice of law
IV.A. Habitual residence
IV.B. Proprietary rights
IV.C. Matrimonial assets
IV.D. Ascertainment of foreign law
- International judicial assistance
V.A. Statistics of judicial assistance in civil or commercial matters
V.B. Taking of evidence for foreign courts
- Action preservation and anti-suit Injunction
VII. Recognition and enforcement of foreign judgments
VIII. International arbitration
VIII.A. Agreements with jurisdiction and arbitration clauses
VIII.B. Construction on “judgment upon the award”
Golan v. Saada: A New Hague Child Abduction Case at the U.S. Supreme Court
Last week, the Supreme Court of the United States agreed to hear a case concerning Hague Convention on the Civil Aspects of International Child Abduction. Amy Howe has an excellent summary of the case on her blog, Howe on the Court.
Under the convention, children who are wrongfully taken from the country where they live must be returned to that country, so that custody disputes can be resolved there. The convention makes an exception for cases in which there is a “grave risk” that returning the child would expose him or her to physical or psychological harm.
In Golan v. Saada, a U.S. citizen married an Italian citizen in 2015; they had a child, born in Milan, in 2016. The husband was allegedly abusive toward the wife throughout the marriage, but he did not directly abuse their son. In 2018, the wife took the child to the United States and did not return, remaining in a domestic-violence shelter in New York. The husband went to federal court there, trying to compel the child’s return to Italy.
The U.S. Court of Appeals for the 2nd Circuit ruled that, when a district court concludes that a child’s return would pose a grave risk of harm, the district court must consider measures that would reduce that risk. This holding clashes with the holdings of other courts of appeals, which do not mandate the consideration of such measures, particularly in cases involving domestic violence. The case then went back to the district court, which ordered the child’s return to Italy with a variety of protective measures in place – for example, mandatory therapy and parenting classes. The Supreme Court agreed to decide whether courts are required to consider all measures that might reduce the grave risk of harm if the child were to return home.
The case will be argued in the Spring and decided before June 2022; the docket and publicly available filings can be accessed here.
The fifth EFFORTS Newsletter is here!
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 fifth 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.
Regular updates are also available via the Project’s website, and LinkedIn and Facebook pages.