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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.

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