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GEDIP Recommendation to the European Commission on the private international law aspects of the future EU instrument on corporate due diligence and accountability
Written by Hans van Loon, a member of GEDIP and former Secretary General of the Hague Conference on Private International Law (HCCH). This post was previously published by the EAPIL blog.
The European Group for Private International Law (GEDIP) at its annual – virtual – meeting in September 2021 adopted a Recommendation to the EU Commission concerning the PIL aspects of corporate due diligence and corporate accountability.
The GEDIP adopted this Recommendation although the Commission has not yet published its legislative initiative on mandatory human rights and environmental due diligence obligations for companies, to which EU Commissioner for Justice, Didier Reynders, committed on 19 April 2019[1]. Meanwhile, however, on 10 March 2021 the European Parliament adopted a Resolution “with recommendations to the Commission on corporate due diligence and corporate accountability”[2]. As the Commission will likely draw inspiration from this document, the GEDIP considered the EP Resolution when drafting its Recommendation. The GEDIP also took into account various legislative initiatives taken by Member States such as the 2017 French Loi sur le devoir de vigilance and the 2021 German legislative proposal for a Sorgfaltsplichtengesetz[3], as well as recent case law in the UK and the Netherlands[4]
The Recommendation starts from the premise that the future EU Instrument (whether a Regulation or a Directive) will have a broad, cross-sectoral scope, and will apply both to companies established in the EU and those in a third State when operating in the internal market. In order to accomplish its aim, the Instrument, in addition to a public law monitoring and enforcement system, should create civil law duties for the relevant companies. Since such duties may extend beyond Member States’ territories, they will give rise to issues of private international law. To be effective, the Instrument should not leave their regulation to the differing PIL systems of the Member States. Ultimately, the proposed rules may find their place in revised texts of EU regulations, including Brussels I recast, Rome I and Rome II. But since revisions of those regulations are unlikely to take place before the adoption of the Instrument, and as these rules are indispensable for its proper operation, the proposal is to include them in the Instrument itself.
The Recommendation therefore proposes that the Instrument extends the current provision on connected claims (Art. 8 (1) Brussels I) to cases where the defendant is not domiciled in a Member State, creates a forum necessitatis where no jurisdiction is available within the EU, determines that the Instrument’s provisions have overriding mandatory effect whatever law may apply to contractual and non-contractual obligations and companies, and extends the rule of Art. 7 of Rome II to claims resulting from non-compliance in respect of all matters covered by the Instrument, while excluding the possibility of invoking Art. 17 of Rome II by way of exoneration[5]
[1] European Commission promises mandatory due diligence legislation in 2021 – RBC (responsiblebusinessconduct.eu).
[2] https://www.europarl.europa.eu/doceo/document/TA-9-2021-0073_EN.html.
[3] See II Background to the Proposal, 3.
[4] See II Background to the Proposal 2.
[5] The Annex to the Proposal contains suggestions concerning the form and the substantive scope of the future EU instrument.
Call for Submissions: Trade, Law and Development
Posted at the request of Aastha Asthana, Managing Editor of Trade Law and Development
Trade, Law and Development
Call for Submissions
Special Issue
“Looking Ahead: Addressing the Challenges Faced by the International Trade Regime”
Issue 14.1 | Summer ’22
Founded in 2009, the philosophy of Trade, Law and Development has been to generate and sustain a constructive and democratic debate on emergent issues in international economic law and to serve as a forum for the discussion and distribution of ideas. Towards these ends, the Journal has published works by noted scholars such as the WTO DDG Yonov F. Agah, Dr. (Prof.) Ernst Ulrich Petersmann, Prof. Steve Charnovitz, Prof. Petros Mavroidis, Prof. Mitsuo Matsuhita, Prof. Raj Bhala, Prof. Joel Trachtman, Dr. (Prof.) Gabrielle Marceau, Prof. Simon Lester, Prof. Bryan Mercurio, and Prof. M. Sornarajah among others. TL&D also has the distinction of being ranked the best journal in India across all fields of law for seven consecutive years by Washington and Lee University, School of Law.
Pursuant to this philosophy, the Board of Editors of Trade, Law and Development is pleased to announce “Looking Ahead: Addressing the Challenges Faced by the International Trade Regime” as the theme for its next Special Issue (Vol. XIV, No. 1).
With the “crown jewel of the WTO” in crisis and the deadlock between developing and developed States in various negotiations at the WTO, Members’ confidence in the multilateral trading system is at an all-time low. This is evidenced by the rising number of FTAs around the globe, and States preferring regionalism over the multilateral framework. In turn, this has also severally impacted the WTO’s ability to provide a forum for negotiations to liberalise trade and establish new rules; to oversee and administer multilateral trade rules; and to resolve trade disputes amongst members. Furthermore, the disruption caused by the COVID-19 pandemic, has exacerbated the stress. Resultantly, WTO Member States are adopting a more protectionist approach.
While the WTO’s role in helping economies recover from decreasing trade volumes has increased multi-fold, it remains to be seen how the organization will grapple with each of these challenges individually. Since TL&D’s objective is to provide a forum of exchange of ideas and constructive debate on legal and policy issues, the above-mentioned factors arguably constitute some of the biggest issues for international trade discourse this year. Through this theme, the Journal aims to encourage discussion particularly on how to protect the multilateral rules-based trading system and in turn, prevent the march towards a pre-WTO power-based trading system.
While the theme is broad enough to cover a wide range of issues, an indicative list of specific areas is as follows:
- Appellate Body Crisis and the Multi Party Interim Appeal Arrangement (MPIA)
- Transparency and Notification/ Transparency and Consensus-Building within the WTO
- Status of Developing Countries at the WTO
- China and the WTO
- Agriculture and Development vis-à-vis the WTO Agreement on Agriculture
- Environmental Sustainability
- Linking Trade and Non-Trade Issues
- COVID-19 and Reorganization of Global Supply Chains
- Increasing Reliance on the National Security Exception by WTO Members
- Increase in Barriers to Cross-Border Investments/ Protectionism
- USA and the WTO
- Stagnancy in Multilateral Trade Liberalisation
- Mega-Regional Trade Agreements as an Alternative to the WTO
These sub-issues are not exhaustive, and the Journal is open to receiving submissions on all aspects related to the challenges faced by the international trade regime and its impact on the global trading system.
Accordingly, the Board of Editors of Trade, Law and Development is pleased to invite original, unpublished manuscripts for publication in the Special Issue of the Journal (Vol. XIV, No. 1) in the form of ‘Articles’, ‘Notes’, ‘Comments’ and ‘Book Reviews’, focusing on the theme “Looking Ahead: Addressing the Challenges Faced by the International Trade Regime”.
Manuscripts received by March 15th, 2022, pertaining to any sub-theme within the purview of challenges faced by international trade will be reviewed for publication in the Summer ’22 issue.
Manuscripts may be submitted via e-mail. For further information about the Journal, please click here. For submission guidelines, please click here.
In case of any queries, please feel free to contact us at: editors[at]tradelawdevelopment[dot]com.
LAST DATE FOR SUBMISSIONS: 15 March, 2022
PATRON: P.P. Saxena | ADVISORS: Raj Bhala | Jagdish Bhagwati | B.S. Chimni | Glenn Wiser | Daniel B. Magraw, Jr. | Vaughan Lowe | Ricardo Ramirez Hernandez | W. Michael Reisman | M. Sornarajah | FACULTY–IN-CHARGE: Dr. Rosmy Joan | BOARD OF EDITORS: Amogh Pareek | Sahil Verma | Sukanya Viswanathan| Abilash Viswanathan| Aastha Asthana | Malaika Shivalkar | Nishant Sharma | Pranav Karwa | Rashmi John | Swikruti Nayak | Akshita Saxena | Ananya Awasthi | Anushka Mathur | Jahnavi Srivastava | Khushi Agrawal | Maulik Khurana | Nidhi Lakhotia | Ria Chaudhary | Yashvi Hora | Aarzoo Gang | Anoushka | Lipika Singla | Priyanshu Shrivastava | Simran Bherwani | Sneha Naresh | Vipashyana Hilsayan
II Jean Monnet Network – BRIDGE Seminar “Migration and Citizenship in the European Union and Latin America”
by Aline Beltrame de Moura, Professor at the Federal University of Santa Catarina, in Brazil
On November 9, 2021, at 4 pm (BR time – GMT -03:00), the Faculty of Law of the Federal University of Santa Catarina will hold a virtual conference, called II Jean Monnet Network Seminar – BRIDGE “Migration and Citizenship in the European Union and Latin America”.
Participants in the event include the Member of the European Parliament, Margarida Marques; the Deputy Head of the European Union Delegation in Brazil, Ana Beatriz Martins; the Regional Policy and Coordination Officer of the International Organization for Migration (IOM – South America), Ezequiel Texidó; the Deputy Representative of the United Nations High Commission for Refugees (UNHCR) in Brazil, Federico Martinez; the Immigration Legal Adviser of Unión Sindical Obrera in Spain, Max Adam Romero; and former employee of Argentina’s Dirección de Migraciones and professor at the Universidad Abierta Interamericana, Emiliano Bursese.
In addition to the Seminar, the event will also feature the presentation of sixteen articles selected through Call for Papers. The two best articles will be awarded the value of EUR 250 each. The Workshop presentations will take place on November 9 from 8:40 am to 12:00 pm (BR time – GMT -03:00), in a virtual mode.
The conference is part of the Jean Monnet Network project called “Building Rights and Developing Knowledge between European Union and Latin America – BRIDGE”, which is part of the Federal University of Santa Catarina (Brazil); the Faculty of Law of the University of Lisbon; the University of Seville (Spain); the University of Milan (Italy); the National Autonomous University (Mexico); the University of Buenos Aires (Argentina) and the University of Rosario (Colombia).
The seminar will be held in Portuguese and Spanish. Registration is free and must be made through the link https://www.even3.com.br/2seminariobridge
Check out the full schedule at: https://eurolatinstudies.com/laces/announcement/view/85