Judges & collective redress:

new perspectives and opportunities for judiciary

          Thursday 12 May 2022, 15:00 to 17:30 CEST

       This online event will be held in English and is reserved for judges and members of judiciaries.

 

                            >>> REGISTER HERE <<<

Judges may play an important role in collective redress actions following mass harm situations. Mass harm situations refer to cases where a number of persons are harmed by the same illegal practices relating to the violation of their rights by one or more traders or other persons. Collective redress actions may seek the cessation of such practices and/or compensation. The fact that such disputes concern large numbers of persons raises specific procedural challenges but also offers opportunities in terms of efficient administration of justice.

In the context of the EU’s Representative Actions Directive, which will come into application in June 2023, judges will be called upon to undertake specific tasks. Depending on the national rules transposing the Directive, they may be required to assess the admissibility and merits of the actions, to ensure that consumers are appropriately represented and informed, to verify that the interests of all represented parties are well-protected, etc. The objective of this workshop is to raise awareness on collective redress and to exchange on the roles of judges in collective redress actions.

During a panel discussion, three judges with recognised expertise in the field of collective redress will share their insight and experience:

Mr. Fabian Reuschle (judge at the Stuttgart Regional court – Landgericht – Germany). Fabian Reuschle actively participated in the adoption of the German Capital Markets Model Case Act (KapMuG) establishing a lead case procedure for the collective handling of capital market-related actions.

Sir Peter Roth (judge at the London High Court & UK Competition Appeal Tribunal). Sir Peter presided over a collective litigation against MasterCard lodged on behalf of 46 million consumers.

Mr. Jeroen Chorus (retired judge, formerly at the Amsterdam Court of Appeal, the Netherlands). Jeroen Chorus was notably in charge of the Dexia and Shell mass settlement with consequences on consumers in multiple European jurisdictions.

Programme:

15:00-15:05	Welcome
15:05-15:15	Setting the scene: What does collective redress mean for judges? (Stefaan Voet, KU Leuven University)
15:15 – 16:30	Panel discussion with: Judge Roth Judge Chorus Judge Reuschle Panel moderated by Maria José Azar-Baud (University of Paris-Saclay, France) & Ianika Tzankova (University of Tilburg, the Netherlands)
16:30-17:15	Questions & Answers session with the audience (moderated by Magdalena Tulibacka, Oxford University, UK/Emory  University – United States and with the participation of the representatives of the Directorate-General for Justice & Consumers of the European Commission
17:15-17:30	Concluding remarks

This project is funded by the European Union.

Attendance to the event is free but registration is mandatory. The number of registrations is limited. Therefore, please register as soon as possible via the following link.

For questions, please contact us.

The latest issue of the „Praxis des Internationalen Privat- und Verfahrensrechts (IPRax)“ features the following articles:

(These abstracts can also be found at the IPRax-website under the following link: https://www.iprax.de/en/contents/)

 

H.-P Mansel/K. Thorn/R. Wagner: European Conflict of Law 2021: The Challenge of Digital Transformation

This article provides an overview of developments in Brussels in the field of judicial cooperation in civil and commercial matters from January 2021 until December 2021. It gives information on newly adopted legal instruments and summarizes current projects that are presently making their way through the EU legislative process. It also refers to the laws enacted at the national level in Germany as a result of new European instruments. Furthermore, the authors look at areas of law where the EU has made use of its external competence. They discuss both important decisions and pending cases before the CJEU as well as important decisions from German courts pertaining to the subject matter of the article. In addition, the article also looks at current projects and the latest developments at the Hague Conference of Private International Law.

 

H. Wais: The Applicable Law in Cases of Collective Redress

Both the European and the German legislator have recently passed legislation aimed at establishing access to collective redress for consumers. As European conflict of law rules do not contain any specific rules on the applicable law in cases of collective redress, the existing rules should be applied in a way that enables consumers to effectively pursue collective actions. To that aim, Art. 4 (3) 1st S. Rome II-Regulation provides for the possibility to rely on the place of the event that has given rise to the damages as a connecting-factor for collective redress cases in which mass damages have occurred in different states. As a consequence of its application, all claims are governed by the same applicable law, thereby fostering the effectiveness of collective redress.

 

M. Lehmann: Locating Financial Loss and Collective Actions in Case of Defective Investor Information: The CJEU’s Judgment in VEB v BP

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. The judgment is also of utmost importance for the jurisdiction over collective actions. This contribution analyses the decision, puts it into larger context, and discusses its repercussions for future cases.

 

M. Pika: Letters of Comfort and Alternative Obligations under the Brussels I and Rome I Regulations

In its judgment of 25 November 2020 (7 U 147/19), the Higher Regional Court of Brandenburg ruled on special jurisdiction regarding letters of comfort under Article 7 No. 1 Brussels I Regulation. While the court left the decision between lit. a and lit. b of that Article open, it ruled that either way, the courts at the domicile of the creditor of the letter of comfort (in this case: the subsidiary) have no special jurisdiction. This article supports the court’s final conclusion. In addition, it assesses that Article 7 No. 1 lit. b Brussels I Regulation on services may apply to letters of comforts given the CJEU’s decision in Kareda (C-249/16).

 

B. Hess/A.J. Wille: Russian default interests before the District Court of Frankfort

In its judgment of February 2021, the Landgericht Frankfurt a.M., applying Russian law, awarded a three-month interest rate of 37% to a defendant domiciled in Germany. When examining public policy, the regional court assumed that there was little domestic connection (Inlandsbezug), as the case was about the repayment of a loan issued in Moscow for an investment in Russia. However, the authors point out that the debtor’s registered office in Hesse established a clear domestic connection. In addition, the case law of German courts interpreting public policy under Article 6 EGBGB should not be directly applied to the interpretation of Articles 9 and 21 of the Rome I Regulation.

 

D. Looschelders: Implied choice of law under the EU Succession Regulation – not just a transitional problem in connection with joint wills

The decision of the German Federal Supreme Court focuses on the question, under which conditions an implied choice of law may be assumed within the framework of the EU Succession Regulation (Regulation No 650/2012). In this particular case, an implied choice of German law as the law governing the binding effect of the joint will drawn up by the German testator and her predeceased Austrian husband was affirmed by reference to recital 39(2) of the EU Succession Regulation. Actually, the joint will of the spouses stipulated the binding effect as intended by German law. As the spouses had drawn up their will before the Regulation became applicable, the question of an implied choice of law arose in the context of transition. However, the decision of the German Federal Supreme Court will gain fundamental importance regarding future cases of implied choices of law for all types of dispositions of property upon death, too. Nevertheless, since the solution of the interpretation problem is not clear and unambiguous, a submission to the ECJ would have been necessary.

 

M. Reimann: Human Rights Litigation Beyond the Alien Tort Claims Act: The Crucial Role of the Act of State Doctrine

The Kashef case currently before the federal courts in New York shows that human rights litigation against corporate defendants in the United States is alive and well. Even after the Supreme Court’s dismantling of the Alien Tort Claims Act jurisdiction remains possible, though everything depends on the circumstances. And even after the Supreme Court’s virtual elimination of federal common law causes of action claims under state or foreign law remain possible, though they may entail complex choice-of-law issues.

Yet, so far, the most momentous decision in this litigation is the Court of Appeals’ rejection of the defendants’ potentially most powerful argument: the Court denied them shelter under the act of state doctrine. It did so most importantly because the alleged human rights abuses amounted to violations of jus cogens.

Coming from one of the most influential courts in the United States, the Second Circuit’s Kashef decision adds significant weight to the jus cogens argument against the act of state doctrine. As long as the Supreme Court remains silent on the issue, Kashef will stand as a prominent reference point for future cases. This is bad news for corporate defendants, good news for plaintiffs, and excellent news for the enforcement of human rights through civil litigation.

 

J. Samtleben: Paraguay: Choice of Law in international contracts

To date, Paraguay is the only country to have implemented into its national law the Hague Principles on Choice of Law in International Commercial Contracts. Law No. 5393 of 2015, which closely follows the Hague model, owes its creation primarily to the fact that the Paraguayan delegate to the Hague was actively involved in drafting the Principles. Unlike the Principles, however, Law No. 5393 also regulates the law governing the contract in the absence of a choice of law, following the 1994 Inter-American Convention on the Law Applicable to International Contracts of Mexico. Contrary to the traditional rejection of party autonomy in Latin America, several Latin American countries have recently permitted choice of law in their international contract law. Paraguay has joined this trend with its new law, but it continues to maintain in procedural law that the jurisdiction of Paraguayan courts cannot be waived by party agreement.

The second issue of 2021 of Giustizia Consensuale (published by Editoriale Scientifica) has just been released and it features:

Silvia Barona Vilar (Professor at the University of València) Sfide e pericoli delle ADR nella società digitale e algoritmica del secolo XXI (Challenges and Pitfalls of ADR in the Digital and Algorithmic Society of the XXI Century; in Italian)

In the XX century, dispute resolution was characterized by the leading role played by State courts: however, this situation has begun to change. With modernity and globalization has come the search of ways to ensure the ‘deconflictualisation’ of social and economic relations and solve conflicts arising out of them. In this context, ADR – and now ODR – have had a decisive impulse in the last decades and are now enshrined in the digital society of the XXI century. ADR mechanisms are, in fact, approached as means to ensure access to justice, favouring at the same time social peace and citizens’ satisfaction. Nevertheless, some uncertainties remain and may affect ADR’s impulse and future consolidation: among such uncertainties are the to-date scarce negotiation culture for conflict resolution, the need for training in negotiation tools, the need for State involvement in these new scenarios, as well as the attentive look at artificial intelligence, both in its ‘soft’ version (welfare) and its ‘hard’ version (replacement of human beings with machine intelligence).

Amy J. Schmitz (Professor at the Ohio State University), Lola Akin Ojelabi (Associate Professor at La Trobe University, Melbourne) and John Zeleznikow (Professor at La Trobe University, Melbourne), Researching Online Dispute Resolution to Expand Access to Justice

In this paper, the authors argue that Online Dispute Resolution (ODR) may expand Access to Justice (A2J) if properly designed, implemented, and continually improved. The article sets the stage for this argument by providing background on ODR research, as well as theory, to date. However, the authors note how the empirical research has been lacking and argue for more robust and expansion of studies. Moreover, they propose that research must include consideration of culture, as well as measures to address the needs of self-represented litigants and the most vulnerable. It is one thing to argue that ODR should be accessible, appropriate, equitable, efficient, and effective. However, ongoing research is necessary to ensure that these ideals remain core to ODR design and implementation.

Marco Gradi (Associate Professor at the University of Messina), Teoria dell’accertamento consensuale: storia di un’incomprensione (The Doctrine of ‘Negotiation of Ascertainment’: Story of a Misunderstanding; in Italian)

This article examines the Italian doctrine of ‘negotiation of ascertainment’ (negozio di accertamento), by means of which the parties put an end to a legal dispute by determining the content of their relationship by mutual consent. Notably, by characterizing legal ascertainment as a binding judgment vis-à-vis the parties’ pre-existing legal relationship, the author contributes to overcoming the misunderstandings that have always denoted the debate in legal scholarship, thus laying down the foundations towards a complete theory on consensual ascertainment.

Cristina M. Mariottini (Senior Research Fellow at the Max Planck Institute Luxembourg for Procedural Law), The Singapore Convention on International Mediated Settlement Agreements: A New Status for Party Autonomy in the Non-Adjudicative Process

The United Nations Convention on International Settlement Agreements Resulting from Mediation (the ‘Singapore Convention’), adopted in 2018 and entered into force in 2020, is designed to facilitate cross-border trade and commerce, in particular by enabling disputing parties to enforce and invoke settlement agreements in the cross-border setting without going through the cumbersome and potentially uncertain conversion of the settlement into a court judgment or an arbitral award. Against this background, the Convention frames a new status for mediated settlements: namely, on the one hand it converts agreements that would otherwise amount to a private contractual act into an instrument eligible for cross-border circulation in Contracting States and, on the other hand, it sets up an international, legally binding and partly harmonized system for such circulation. After providing an overview of the defining features of this new international treaty, this article contextualizes the Singapore Convention in the realm of international consent-based dispute resolution mechanisms.

 

Observatory on Legislation and Regulations

Ivan Cardillo (Senior Lecturer at the Zhongnan University of Economics and Law in Wuhan), Recenti sviluppi della mediazione in Cina (Recent developments in mediation in China; in Italian)

This article examines the most recent developments on mediation in China. The analysis revolves around, in particular, two prominent documents: namely, the ‘14th Five-Year Plan for National Economic and Social Development and Long-Range Objectives for 2035’ and the ‘Guiding Opinions of the Supreme People’s Court on Accelerating Steps to Motivate the Mediation Platforms of the People’s Courts to Enter Villages, Residential Communities and Community Grids.’ In particular, the so-called ‘Fengqiao experience’ ? which developed as of the 1960s in the Fengqiao community and has become a model of proximity justice ? remains the benchmark practice for the development of a model based on the three principles of self-government, government by law, and government by virtue. In this framework, mediation is increasingly identified as the main echanism for dispute resolution and social management: in this respect, the increasing use of technology proves to be crucial for the development of mediation platforms and the efficiency of the entire judicial system. Against this background, the complex relationship becomes apparent between popular and judicial mediation, their coordination and their importance for governance and social stability: arguably, such a relationship will carry with it in the future the need to balance the swift dispute resolution with the protection of fundamental rights.

Angela D’Errico (Fellow at the University of Macerata), Le Alternative Dispute Resolution nelle controversie pubblicistiche: verso una minore indisponibilità degli interessi legittimi? (Alternative Dispute Resolution in Public Sector Disputes: Towards an Abridged Non-Availability of Legitimate Interests?; in Italian)

This work analyzes the theme of ADR in publicity disputes and, in particular, it’s understood to deepen the concepts of the availability of administrative power and legitimate interests that hinder the current applicability of ADRs in public matters. After having taken into consideration the different types of ADR in the Italian legal system with related peculiarities and criticalities, it’s understood, in the final part of the work, to propose a new opening to the recognition of these alternative instruments to litigation for a better optimization of justice.

 

Observatory on Jurisprudence

Domenico Dalfino (Professor at the University ‘Aldo Moro’ in Bari), Mediazione e opposizione a decreto ingiuntivo, tra vizi di fondo e ipocrisia del legislatore (Mediation and Opposition to an Injunction: Between Underlying Flaws and Hypocrisy of the Legislator; in Italian)

In 2020, the plenary session of the Italian Court of Cassation, deciding a question of particular significance, ruled that the burden of initiating the mandatory mediation procedure in proceedings opposing an injunction lies with the creditor. This principle sheds the light on further pending questions surrounding mandatory mediation.

 

Observatory on Practices

Andrea Marighetto (Visiting Lecturer at the Federal University of Rio Grande do Sul) and Luca Dal Pubel (Lecturer at the San Diego State University), Consumer Protection and Online Dispute Resolution in Brazil

With the advent of the 4th Industrial Revolution (4IR), Information and Communication Technology (ICT) including the internet, computers, digital technology, and electronic services have become absolute protagonists of our lives, without which even the exercise of basic rights can be harmed. The Covid-19 pandemic has increased and further emphasized the demand to boost the use of ICT to ensure access to basic services including access to justice. Specifically, at a time when consumer relations represent the majority of mass legal relations, the demand for a system of speedy access to justice has become necessary. Since the early ’90s, Brazil has been at the forefront of consumer protection. In the last decade, it has taken additional steps to enhance consumer protection by adopting Consumidor.gov, a public Online Dispute Resolution (ODR) platform for consumer disputes. This article looks at consumer protection in Brazil in the context of the 4IR and examines the role that ODR and specifically the Consumidor.gov platform play in improving consumer protection and providing consumers with an additional instrument to access justice.

In addition to the foregoing, this issue features the following book review by Maria Rosaria Ferrarese (Professor at the University of Cagliari): Antoine Garapon and Jean Lassègue, Giustizia digitale. Determinismo tecnologico e libertà (Italian version, edited by M.R. Ferrarese), Bologna, Il Mulino, 2021, 1-264.

Julia Hörnle, Professor of Internet Law, CCLS, Queen Mary University of London[1]

It is now well known that internet users are widely tracked and profiled by a range of actors and the advancements in data science mean that such tracking and profiling is increasingly commercially profitable[2]. This raises difficult questions about how to balance the value of data with individual privacy. But since there is no point in having privacy (or data protection) rights if no redress can be found to vindicate them, it is even more important to investigate how internet users can obtain justice, if their privacy has been infringed. Given the power of Big Tech Companies, their enormous financial resources, cross-jurisdictional reach and their global impact on users’ privacy, there are two main litigation challenges for successfully bringing a privacy claim against Big Tech. One is the jurisdictional challenge of finding a competent court in the same jurisdiction as the individual users.[3] Secondly, the challenge is how to finance mass claims, involving millions of affected users. In privacy claims it is likely that there is significant user detriment, potentially with long-term and latent consequences, which are difficult to measure. This constellation provides a strong argument for facilitating collective redress, as otherwise individual users may not be able to obtain justice for privacy infringements before the courts. In privacy infringement claims these two challenges are intertwined and present a double-whammy for successful redress. Courts in a number of recent cases had to grapple with questions of jurisdiction in consumer collective redress cases in the face of existing provision on consumer jurisdiction and collective redress, which have not (yet) been fully adapted to deal with the privacy challenges stemming from Big Tech in the 21^st century.

In Case C-498/16 Max Schrems v Facebook Ireland[4] the Court of Justice of the EU in 2018 denied the privilege of EU law for consumers to sue in their local court[5] to a representative (ie Max Schrems) in a representative privacy litigation against Facebook under Austrian law. By contrast, courts in California and Canada have found a contractual jurisdiction and applicable law clause invalid as a matter of public policy in order to allow a class action privacy claim to proceed against Facebook.[6] In England, the dual challenge of jurisdiction and collective actions in a mass privacy infringement claim has presented itself before the English Courts, first in Vidal-Hall v Google before the Court of Appeal in 2015[7] and in the Supreme Court judgment of Google v Lloyd in November 2021[8]. Both cases concerned preliminary proceedings on the question of whether the English courts had jurisdiction to hear the action, ie whether the claimant was able to serve Google with proceedings in the USA and have illustrated the limitations of English law for the feasibility of bringing a collective action in mass-privacy infringement claims.

The factual background to Vidal- Hall and Lloyd is the so-called “Safari workaround” which allowed Google for some time in 2011-2012 to bypass Apple privacy settings by placing DoubleClick Ad cookies on unsuspecting users of Apple devices, even though Safari was trying to block such third party cookies, used for extensive data collection and advertising. The claimants alleged that this enabled Google to collect personal data, including sensitive data, such as users’ interests, political affiliations, race or ethnicity, social class, political and religious beliefs, health, sexual interests, age, gender, financial situation and location. Google additionally creates profiles from the aggregated information which it sells. The claim made was that Google as data controller had breached the following data protection principles set out in the Data Protection Act 1998 Schedules 1 and 2: 1^st (fair and lawful processing), 2^nd (processing only for specified and lawful purposes) and 7^th (technical and organizational security measures). In particular, it was alleged that Google had not notified Apple iPhone users of the purposes of processing in breach of Schedule 1, Part II, paragraph 2 and that the data was not processed fairly according to the conditions set out in Schedules 2 and 3.

Vidal-Hall^[9] concerned the first challenge of jurisdiction and in particular whether the court should allow the serving of proceedings on the defendant outside the jurisdiction under the Civil Procedure Rules[10]. For privacy infringement, previous actions had been brought under the cause of action of breach of confidence^[11], which is a claim in equity and, thus it was unclear whether for such actions jurisdiction lies at the place of where the damage occurs. The Court of Appeal held that misuse of private information and contravention of the statutory data protection requirements was a tort and therefore, if damage had been sustained within England, the English courts had jurisdiction and service to the USA (California) was allowed.

The second hurdle for allowing the case to proceed by serving outside the jurisdiction was the question of whether the claimant was limited to claiming financial loss or whether a claim for emotional distress could succeed. The Court of Appeal in Vidal-Hall decided that damages are available for distress, even in the absence of financial loss, to ensure the correct implementation of Article 23 of the (then) Data Protection Directive, and in order to comply with Articles 7 and 8 of the Charter of Fundamental Rights of the EU. The Court therefore found that there was a serious issue to be tried and allowed service abroad to proceed, at which point the case settled.

The more recent English Supreme Court judgment in Lloyd concerned the second challenge, collective redress. As pointed out by Lord Leggatt in the judgment, English procedural law provides for three different types of actions: Group Litigation Orders (CPR 19.11), common law representative actions, and statutory collective proceedings under the Competition Act 1998. Their differences are significant for the purposes of litigation financing in two respects: first the requirement to identify and “sign-up” claimants and secondly, the requirement for individualized assessment of damages. Since both these requirements are expensive, they make collective redress in mass privacy infringement cases with large numbers of claimants impractical.

Group actions require all claimants to be identified and entered in a group register (“opt-in”) and are therefore expensive to administer, which renders them commercially unviable if each individual claim is small and if the aim is to spread the cost of litigation across a large number of claimants.

English statutory law in the shape of the Competition Act 1998 provides for collective proceedings before the Competition Appeal Tribunal in competition law cases only.[12] Since the reforms by the Consumer Rights Act in 2015, they can be brought under an “opt-in” or “opt-out” mechanism. Opt-out means that a class can be established without the need for affirmative action by each and every member of the class individually. The significance of this is that it is notoriously difficult (and expensive) to motivate a large number of consumers to join a collective redress scheme. Human inertia frequently prevents a representative claimant from joining more than a tiny fraction of those affected. For example, 130 people (out of 1.2-1.5 million) opted into the price-fixing case against JJB Sports concerning replica football shirts.[13] Likewise, barely 10,000 out of about 100,000 of Morrison’s employees joined the group action against the supermarket chain for unlawful disclosure of private data on the internet by another employee.[14] Furthermore, s.47C (2) of the Competition Act obviates the need for individual assessment of damages, but limits the requirement to prove damages to the class as a whole, as an aggregate award of damages, as held by Lord Briggs in Merricks v Mastercard[15]. However no such advanced scheme of collective redress has yet been enacted in relation to mass privacy infringement claims.

While the Supreme Court held that Mr Lloyd’s individual claim had real prospect of success, the same could not necessarily be said of everyone in the class he represented. This case was brought as a representative action where Mr Lloyd represented the interests of everyone in England and Wales who used an iPhone at the relevant time and who had third party cookies placed by Google on their device. One of the interesting features of representative actions is that they can proceed on an opt-out basis, like the collective actions under the Competition Law Act. Common law representative actions have been established for hundreds of years and have now been codified in CPR Rule 19.6: “Where more than one person has the same interest in a claim by or against one or more of the persons who have the same interest as representatives of any other person who have that interest”. Thus representative actions are based on the commonality of interest between claimants. The pivotal issue in Lloyd was the degree of commonality of that interest and in particular, whether this commonality must extend to the losses, which claimants have suffered, and proof of damages.

Lord Leggatt in Lloyd emphasized the spirit of flexibility of representative actions. Previous caselaw in the Court of Appeal had held that it was possible for claimants to obtain a declaration by representative action, which declares that they have rights which are common to all of them, even though the loss and amount of damages may vary between them.[16] He held that a bifurcated approach was permissible: a representative action can be brought seeking a declaration about the common interests of all claimants, which can then form the basis for individual claims for redress. Lord Leggatt held that, depending on the circumstances, a representative action could even be brought in respect of a claim for damages, if the total amount of damages could be determined for the class as a whole, even if the amount for each individual claimant varied, as this was a matter which could be settled between the claimants in a second step. He held that, therefore, a representative action can proceed even if a claim for damages was an element of the representative action, as in Lloyd.

Lord Leggatt found that the interpretation of what amounts to the “same interest” was key and that there needed to be (a) common issue(s) so that the “representative can be relied on to conduct the litigation in a way which will effectively promote and protect the interests of all the members of the represented class.”[17] The problem in Lloyd was that the total damage done to privacy by the Safari workaround was unknown.

Lord Leggatt saw no reason why a representative action for a declaration that Google was in breach of the Data Protection Act 1998, and that each member was entitled to compensation for the damage suffered as a consequence of the breach, should fail. However, commercial litigation funding in practice cannot fund actions seeking a mere declaration, but need to be built on the recovery of damages, in order to finance costs. In order to avoid the need for individualised damages, the claim for damages was formulated as a claim for uniform per capita damages. The problem on the facts of this case was clearly that the Safari workaround did not affect all Apple users in the same manner, as their internet usage, the nature and amount of data collected, as well as the effect of the data processing varied, all of which required individualised assessment of damages.

For this reason, the claimant argued that an infringement of the Data Protection Act 1998 leads to automatic entitlement to compensation without the need to show specific financial loss or emotional distress. This argument proved to be ultimately unsuccessful and therefore the claim failed. The Court examined Section 13 of the Data Protection Act 1998, entitling the defendant to compensation for damage, but the court held that each claimant had to prove such damage. The level of distress varied between different members of the represented class, meaning that individual assessment was necessary.

The claimant sought to apply the cases on the tort of misuse of private information by analogy. In this jurisprudence the courts have allowed for an award of damages for wrongful intrusion of privacy as such, without proof of distress in order to compensate for the “loss of control” over formerly private information.[18] Lord Leggatt pointed out that English common law now recognized the right to control access to one’s private affairs and infringement of this right itself was a harm for which compensation is available.

However in this particular case the claim had not been framed as the tort of misuse of private information or privacy intrusion, but as a breach of statutory duty and Lord Leggatt held that the same principle, namely the availability of damages for “loss of control” did not apply to the statutory scheme. He pointed out that it may be difficult to frame a representative action for misuse of private information, as it may be difficult to prove reasonable expectations of privacy for the class as a whole. This may well be the reason that the claim in this case was based on breach of statutory duty in relation to the Data Protection Act. Essentially the argument that “damages” in Section 13 (1) included “loss of control” over private data was unsuccessful. Both Article 23 of the Data Protection Directive and Article 13 made a distinction between the unlawful act (breach of data protection requirements) and the damage resulting, and did not conceive the unlawful act itself as the damage. Furthermore, it was not intended by the Directive or the Act that each and every contravention led to an entitlement to damages. He held that “loss of control” of personal data was not the concept underlying the data protection regime, as processing can be justified by consent, but also other factors which made processing lawful, so the control over personal data is not absolute.

Furthermore, it did not follow from the fact that both the tort of misuse of private information and the data protection legislation shared the same purposes of protecting the right to privacy under Article 8 of the European Convention of Human Rights that the same rule in respect of damages should apply in respect of both. There was no reason “why the basis on which damages are awarded for an English domestic tort should be regarded as relevant to the proper interpretation of the term “damage” in a statutory provision intended to implement a European directive”.[19] He concluded that a claim for damages under Section 13 required the proof of material damage or distress. He held that the claim had no real prospect of success and that therefore no permission should be given to serve proceedings outside the jurisdiction (on Google in the US).

This outcome of Lloyd raises the question in the title of this article, namely whether the cross-border battle on collective actions in mass privacy infringement cases against Big Tech has been lost, or whether on the contrary, it has just begun. One could argue that it has just began for the reason that the facts underlying this case occurred in 2011-2012, and therefore the judgment limited itself to the Data Protection Act 1998 (and the then Data Protection Directive 1995/46/EC). Since then the UK has left the EU, but has retained the General Data Protection Regulation[20] (“the UK GDPR”) and implemented further provisions in the form of the Data Protection Act 2018, both of which contain express provisions on collective redress. The GDPR provides for opt-in collective redress performed by a not-for-profit body in the field of data protection established for public interest purposes.[21] This is narrow collective redress as far removed from commercial litigations funders as possible. Because of the challenge of financing cross-border mass-privacy infringements claims, this is unlikely to be a practical option. The GDPR makes it optional for Member States to provide that such public interest bodies are empowered to bring opt-out collective actions for compensation before the courts.[22] These provisions unfortunately do not add anything to common law representative actions or group actions under English law. As has been illustrated above, representative actions can be brought on an “opt-out” basis, but have a narrow ambit in that all parties must have the same interest in the claim and Lloyd has demonstrated that in the case of distress this communality of interest may well defeat a claim. For group actions the bar of communality is lower, as it may encompass “claims which give rise to common or related issues of fact or law”[23]. But clearly the downside of group actions is that they are opt-in. Therefore, while English law recognizes collective redress, there are limitations to its effectiveness.

The Data Protection Act 2018 imposes an obligation on the Secretary of State to review the provision on collective redress, and in particular, consider the need for opt-out collective redress, and lay a report before Parliament. This may lead to Regulations setting out a statutory opt-out collective redress scheme for data protection in the future.[24] This Review is due in 2023.

Thus, the GDPR and the Data Protection Act 2018 have not yet added anything to the existing collective redress. It can only be hoped that the Secretary of State reviews the collective redress mechanisms in relation to data protection law and the review leads to a new statutory collective redress scheme, similar to that enacted in respect of Competition Law in 2015, thereby addressing the challenge of holding Big Tech to account for privacy infringement.[25]

However the new data protection law has improved the provision of recoverable heads of damage. This improvement raises the question, if the issues in Lloyd had been raised under the current law, whether the outcome would have been different. The Data Protection Act 2018 now explicitly clarifies that the right to compensation covers both material and non-material damage and that non-material damage includes distress.[26] Since non-material damage is now included in the Act, the question arises whether this new wording could be interpreted by a future court as including the privacy infringement itself (loss of control over one’s data). Some of the arguments made by Lord Leggatt in Lloyd continue to be relevant under the new legislation, for example that the tort of statutory breach is different from the tort of misuse of private information and that not each and every (minor) infringement of a statute should give raise to an entitlement for damages. Nevertheless it is clear from the new Act that non-material damage is included and that non-material damage includes distress, but is wider than distress. This means that claimants should be able to obtain compensation for other heads of non-material damage, which may include the latent consequences of misuse of personal information and digital surveillance. There is much scope for arguing that some of the damage caused by profiling and tracking are the same for all claimants. A future representative action in an equivalent scenario may well be successful. Therefore, the battle for collective action against Big Tech companies’ in privacy infringement cases may just have begun.

[1] J.hornle@qmul.ac.uk

[2] Shoshana Zuboff The Age of Surveillance Capitalism (2018)

[3] See further J. Hörnle, Internet Jurisdiction Law & Practice (OUP 2021)

[4] ECLI:EU:C:2018:37; discussed further in J. Hörnle fn 1 Chapter 8

[5] Ie the courts of the consumer’s domicile, if the business directed their activities to that state, Art 17 and Art 18 (1) Brussels Regulation on Jurisdiction (EU) 1215/2021

[6] In Re Facebook Biometric Information Privacy Litigation 185 F.Supp.3d 1155 (US District Court N.D. California 2016) and Douez v Facebook [2017] SCC 33; discussed further in J. Hörnle fn 1 Chapter 8

[7] [2016] QB 1003

[8] [2021] 3 WLR 1268

[9] [2015] 3 WLR 409 (CA)

[10] CPR PD 6B para.3.1(9)

[11] Campbell v MGN Ltd [2004] 2 WLR 1232 (HL)

[12] Section 47B

[13] The Consumers Association v JJB Sports Plc [2009] CAT 2

[14] Various Claimants v WM Morrisons Supermarkets Plc [2017] EWHC 3113 (QB)

[15] [2021] Bus LR 25, para 76

[16] David Jones v Cory Bros & Co Ltd (1921) 56 LJ 302; 152 LT Jo 70

[17] Paras 71-74

[18] by Mann J affirmed in the Court of Appeal Gulati v MGN Ltd [2017] QB 149

[19] Para 124

[20] Regulation (EU) 2016/679, L119, 4 May 2016, p. 1–88

[21] Art 80 (1)

[22] Arts 79 and 80 (2) in relation to effective judicial remedies

[23] CPR Part 19- Group Litigation Orders, Rules 19.10, 19.11

[24] ss. 189-190

[25] The current government, however seems to march in the opposite direction, see Consultation on reform of data protection law https://www.gov.uk/government/consultations/data-a-new-direction

[26] S. 168 (1)

The latest issue of the „Praxis des Internationalen Privat- und Verfahrensrechts (IPRax)“ features the following articles:

 

C. Wendehorst: Digital Assets in Private International Law

Rights with third party effect (erga omnes rights, rights in rem) in digital assets may exist at four levels: (a) the level of physical manifestation of data on a medium; (b) the level of data as encoded information; (c) the functional level of data as digital content or services; and (d) the level of data as representation of rival assets. As yet, recognized conflict-of-law rules exist only for level (c), which has always been dealt with under international intellectual property law.

As to rights in physical manifestations of data, these may be dealt with under Art. 43 EGBGB where data is stored and accessed only locally. In the case of remote access to data, especially in the case of data stored in the cloud, the law of the state where the controller is located should apply. In the case of two or more controllers located in different states, the location of the server operator (cloud provider) may decide instead, but neither of these connecting factors applies if the facts of the case indicate a closer connection with the law of another state.

Data as encoded information is a non-rival resource. Should a foreign jurisdiction recognise exclusive data ownership rights, these would have to be dealt with under international intellectual property law. For data access rights, portability rights and similar rights the rules on the territorial scope of the GDPR may provide some helpful indications as to the applicable law. However, where such rights arise within a contractual relationship or other specific framework the law applicable to this framework may prevail.

As to crypto assets, uniform conflict-of-law rules would be highly desirable. Subject to further integration of crypto assets into the existing system for intermediated securities, rights in tokens should primarily be governed by the law referred to by conflict-of-law rules specifically addressing crypto assets, including appropriate analogies to such rules. Where no such rules exist, the closest connection must be ascertained by a connecting factor that is sufficiently certain and clearly visible to third parties, such as the law that has visibly been chosen as the applicable law for the whole ledger (elective situs), the location of the issuer (LIMA), or the place of the central administrator (PROPA) or of the sole holder of a private master key (PREMA).

 

R. de Barros Fritz: The new legal tech business model of mass action litigation from the choice of law perspective

In recent years, courts had to increasingly deal with questions of substantive law concerning a new, but in practice already well-established business model of mass action litigation, which is offered by companies such as Financialright Claims and Myright. These are often cases that have links to foreign countries. The present article has therefore taken this opportunity to examine the question of the law applicable to this business model in more detail.

 

P. Hay: Forum Selection Clauses – Procedural Tools or Contractual Obligations? Conceptualization and Remedies in American and German Law

German and American law differ methodologically in treating exclusive forum selection clauses. German law permits parties, subject to limitations, to derogate the jurisdiction of courts and, in the interest of predictability, to select a specific court for any future disputes. The German Supreme Court emphasized in 2019 that, as a contract provision, the clause also gives rise to damages in case of breach. American law historically does not permit parties to “oust” the jurisdiction a court has by law. But the parties’ wishes may be given effect by granting a party’s motion to dismiss for forum non conveniens (FNC) when sued in a different court in breach of the agreement. FNC dismissals are granted upon a “weighing of interests” and in the court’s discretion. The clause, even when otherwise valid, is therefore not the kind of binding obligation, enforced by contract remedies, as in German law. The case law does not give effect to its “dual nature,” as characterized by the German Supreme Court. The latter’s decision correctly awarded attorneys’ fees for expenses incurred by the plaintiff when the defendant had sued (and lost) in the United States in breach of a forum selection clause, especially since German jurisdiction and German law had been stipulated. Application of the “American Rule” of costs most probably would not have shifted fees to the losing party had American law been applied, although the rule is far less stringent today than often assumed.

 

A. Stadler/C. Krüger: International jurisdiction and the place where the damage occurred in VW dieselgate cases

Once again the European Court of Justice had to deal with the question of where to locate the place where the harm or damage occurred (“Erfolgsort”, Article 7 no. 2 Brussels Ibis Regulation) which is particularly difficult to define in case of pure economic loss tort cases. Previous case law of the ECJ resulted in a series of very specific judgments and a high unpredictability of the international jurisdiction. In the Austrian “Dieselgate” case the referring court had doubts whether the Austrian car purchasers who had bought and received their cars in Austria suffered a “primary loss” or only an irrelevant “secondary loss”. The ECJ rightly rejects the idea of a secondary loss and concludes that the place where the (primary) damage occurred is to be located in Austria. The authors criticise that the ECJ – without an obvious reason – emphasises that the case at hand is not about pure economic loss. Although they agree with the court’s finding that the place where the damage occurred was in Austria as the place of acquisition of the cars, they discuss whether in future cases one might have to distinguish between the place where the sales contract was entered into or the place where the defective object became part of the purchasers’ property. The authors reject any detailed approach and advocate in favour of abandoning the principle of ubiquity in cases of pure economic loss. Alternatively, the only acceptable solution is an entire consideration of all relevant facts of the individual case.

 

P.F. Schlosser: Jurisdiction agreements binding also third beneficiaries in contracts?

Even in the context of jurisdiction agreements, the European Court applies the rules protecting the policy holder for the benefit of the “insured”. In this respect the Court’s methodology and result must be approved of. The restriction of the holding as to the consent of the insured and the qualification of the insured as an insurance company are of no practical impact and due to the narrow question referred to the Court. The holding may, however, not be transferred by a reverse argumentation to assignments of rights against consumers or employees to commercial entities.

 

B. Heiderhoff: Article 15 Brussels IIbis Regulation, the Child’s best interests, and the recast

Article 15 Brussels IIbis Regulation provides that the court competent under Article 8 et seq Brussels IIbis Regulation may, under certain prerequisites, transfer the case to a court in another Member State. In the matter of EP./. FO (ECJ C-530/18) the ECJ once more explains the central notion of this rule, being the best interest of the child. The ECJ holds that the competent court must not initiate the transfer on the basis that the substantive law applied by the foreign court is more child friendly – which is, by the way, a rather unrealistic scenario for various reasons. Concerning procedural law, the ECJ points out that different rules may only be taken into account if they “provide added value to the resolution of the case in the interests of the child”. Notwithstanding the ECJ’s fundamental and recurrent statement that the transfer is never mandatory, it still seems reasonable for the competent court to apply a well-balanced, comprehensive approach towards the transfer. Should it deny the transfer to a court that is “better placed to hear the case” on the grounds that the foreign law is “different” or maybe that it even seems to be less in the interest of the child? According to the principle of mutual trust, the author suggests to use the public policy standard and to ignore any differences in the substantive and procedural law, as long as they do not threaten to add up to a public policy infringement. The paper also points out some changes in the new Articles 12 and 13 Brussels IIbis Recast which aim at further specifying the transfer mechanism. The resulting deletion of the comprehensive evaluation of the child’s best interests by the transferring court in para 1 seems unintentional. Thus, the author recommends to keep up the current handling.

 

F. Koechel: Article 26 of the Brussels Ibis Regulation as a Subsidiary Ground of Jurisdiction and Submission to Jurisdiction Through Eloquent Silence

According to the CJEU’s decision, a court may assume jurisdiction based on the entering of an appearance of the defendant only if Articles 4 ff. of the Brussels Ibis Regulation do not already provide for a concurrent ground of jurisdiction in the forum state. This restrictive interpretation complicates the assessment of jurisdiction and limits the scope of the Brussels Ibis Regulation without any substantial justification. On the contrary, a subsidiary application of Article 26 of the Brussels Ibis Regulation is systematically inconsistent with Article 25, which generally privileges the jurisdiction agreed by the parties over any concurrent ground of jurisdiction. In this decision, the CJEU confirms its previous interpretation according to which Article 26 Brussels Ibis Regulation may not be employed as a ground of jurisdiction vis-à-vis a defendant who chooses not to enter an appearance. However, the CJEU does not sufficiently take into account that in the main proceedings the court had requested the defendant to state whether or not he wanted to challenge jurisdiction. The question therefore was not simply if a defendant submits to a court’s jurisdiction by not reacting at all after having been served with the claim. Rather, the CJEU would have had to answer whether a defendant enters an appearance within the sense of Article 26 of the Brussels Ibis Regulation if he does not comply with the court’s express request to accept or challenge jurisdiction. The article argues that the passivity of the defendant may only exceptionally be qualified as a submission to jurisdiction if he can be deemed to have implicitly accepted the court’s jurisdiction.

 

C. Lasthaus: The Transitional Provisions of Article 83 of the European Commission’s Succession Regulation

The European Commission’s Succession Regulation 650/2012 aims to facilitate cross-border successions and intends to enable European citizens to easily organise their succession in advance. In order to achieve this goal, the regulation – inter alia – facilitates the establishment of bilateral agreements as to succession. This is the case not only for agreements made after 17/8/2015 but – under the condition that the testator dies after this date – according to the transitional provisions in Article 83 also for those made prior. Due to these transitional provisions, some formerly invalid agreements made prior to the effective date of the regulation turned valid once the regulation applied. In its judgment, the German Federal Court of Justice (“BGH“) ruled on the legal validity of a formerly invalid bilateral agreement as to succession between a German testator and her Italian partner. This legal review inter alia deals with the distinction between Article 83 para. 2 and Article 83 para. 3 of the Regulation as well as legal aspects concerning the retroactive effect of the transitional provisions.

 

P. Kindler: The obligation to restore or account for gifts and advancements under Italian inheritance law: questions of applicable law and international civil procedure, including jurisdiction and the law applicable to pre-judgment interest

The present decision of the Higher Regional Court of Munich deals with the obligation to restore or account for gifts and advancements when determining the shares of different heirs under Italian law (Article 724 of the Italian Civil Code). Specifically, it addresses a direct debit from the bank account held by husband and wife and payed to the wife alone a few days before the husband’s death. The husband was succeeded on intestacy by his wife and three descendants one of which sued the deceased’s wife in order to obtain a declaratory judgment establishing that half of the amount payed to the wife by the bank is an advancement, received from the deceased during his lifetime, and that such advancement has to be adjusted in the partitioning between the heirs. The article presents the related questions of applicable law under both the European Succession Regulation and the previous conflict rules in Germany and Italy. Side aspects regard, inter alia, the law applicable to interest relating to the judicial proceedings (Prozesszinsen) and how the Court determined the content of the foreign substantive law.

 

P. Mankowski: Securing mortgages and the system of direct enforcement under the Brussels Ibis Regulation

On paper, the Brussels Ibis Regulation’s turn away from exequatur to a system of direct enforcement in the Member State addressed was a revolution. In practice, its consequences have still to transpire to their full extent. The interface between that system and every-day enforcement practice is about to become a fascinating area. As so often, the devil might be in the detail, and in the minute detail at that. The Sicherungshypothek (securing mortgage) of German law now stars amongst the first test cases.

 

E. Jayme: Registration of cultural goods as stolen art: Tensions between property rights and claims of restitution – effects in the field of international jurisdiction and private international law

In 1999, the plaintiff, a German art collector had acquired a painting by the German painter Andreas Achenbach in London. In 2016 the painting was registered in the Madgeburg Lost Art Database according to the request of the defendant, a (probably) Canadian foundation. The painting was owned, between 1931 and 1937, by a German art dealer who had to leave Germany and was forced to close his art gallery in Düsseldorf. The plaintiff based his action on a violation of his property rights. The court dismissed the action: the registration, according to the court, did not violate the plaintiff’s property rights. The case, at first, involves questions of international civil procedure. The court based jurisdiction, according to para. 32 of the German Code of Civil Procedure, on the place of the pretended violation of property, i.e. the seat of the German foundation, which had registered the painting in its lost art register. The European rules were not applicable to a defendant having its seat outside the European community. The author follows the Magdeburg court as to the question of jurisdiction, but criticises the outcome of the case and the arguments of the court for generally excluding the violation of property rights. A painting registered as lost art loses its value on the art market, it cannot be sold. In addition, the registration of a painting as lost art may perhaps violate property rights of the German plaintiff in situations where there has been, after the Second World War, a compensation according to German public law, or where the persons asking for the registration did not sufficiently prove the legal basis of their claim. However, the Magdeburg registration board has developed some rules for cancelling registration based on objective arguments. Thus, the question is still open.

 

I. Bach/H. Tippner: The penalty payment of § 89 FamFG: a wanderer between two worlds

For the second time within only a few years, the German Federal Supreme Court (BGH) had to decide on a German court’s jurisdiction for the enforcement of a (German) judgment regarding parental visitation rights. In 2015, the BGH held that under German law the rule regarding the main proceedings (§ 99 FamFG) is to be applied, because of the factual and procedural proximity between main and enforcement proceedings. Now, in 2019, the BGH held that under European law the opposite is true: The provisions in Articles 3 et seq. Brussels IIbis Regulation are not applicable to enforcement proceedings. Therefore, the question of jurisdiction for enforcement proceedings is to be answered according to the national rules, i.e. in the present case: according to § 99 FamFG.

 

D.P. Fernández Arroyo:Flaws and Uncer tain Effectiveness of an Anti-Arbitration Injunction à l’argentine

This article deals with a decision issued by an Argentine court in the course of a dispute between an Argentine subsidiary of a foreign company and an Argentine governmental agency. The court ordered the Argentine company to refrain from initiating investment treaty arbitration against Argentina. This article addresses the conformity of the decision with the current legal framework, as well as its potential impact on the ongoing local dispute. Additionally, it briefly introduces some contextual data related to the evolution of Argentine policies concerning arbitration and foreign investment legal regime.

On the occasion of the 70th birthday of Herbert Kronke, Professor emeritus of the University of Heidelberg, President of the German Institution of Arbitration and Arbitrator (Chairman, Chamber Three) at the Iran US Claims Tribunal at The Hague, Former Secretary-General of UNIDROIT, a large number of friends and colleagues gathered to honour a truly outstanding scholar with essays, edited by Christoph Benicke, Professor at the University of Gießen, Germany, and Stefan Huber, Professor at the University of Tübingen, in an impressive volume of nearly 2000 pages with more than 150 contributions from all over the world, many of them in English – highly recommended to browse through state of the art thinking and research on national, international and transnational law:

 

 

I. Internationales Privat- und Verfahrensrecht sowie Völkerrecht

Moritz BRINKMANN und Thomas VOGT GEISSE

Qualifikation und Anknüpfung von Instrumenten der prozessvorbereitenden Aufklärung

Eckart BRÖDERMANN

Vom Drachen-steigen-Lassen – Ein internationales Jura-Märchen zum IPR/IZVR

Hannah L. BUXBAUM

Capital Markets and Conflict of Laws: from Mutual Recognition to Substituted Compliance

Dagmar COESTER-WALTJEN

Der gewöhnliche Aufenthalt eines Neugeborenen im Internationalen Familienrecht

Anatol DUTTA

Gleichlauf von forum und ius – ein legitimes Ziel des internationalen Privatrechts?

Dorothee EINSELE

Der Erfüllungsort von Geschäften in Finanzinstrumenten

Omaia ELWAN und Dirk OTTO

Staaten und Staatsunternehmen im internationalen Schieds- und Zivilverfahrensrecht

Cecilia FRESNEDO DE AGUIRRE

Private International Law in Uruguay: Present and Future

Angelika FUCHS

Zum Klägergerichtsstand bei Auslandsunfällen

Horacio A. GRIGERA NAÓN

UNIDROIT Principles as Proper Law

Pascal GROLIMUND und Eva BACHOFNER

Örtlicher Gerichtsstand bei Vereinbarung der internationalen Zuständigkeit

Wolfgang HAU

Der Drittstaatsansässige als „Fremder“ im Rahmen der europäischen justiziellen Zusammenarbeit in Zivilsachen

Jan VON HEIN

Kollisionsrechtliche Aspekte neuer Formen des Erwachsenenschutzes

Christian HEINZE

Anforderungen an eine Auslandsklage zur Hemmung der Verjährung nach § 204 Abs. 1 Nr. 1 BGB

Dieter HENRICH

Ehe zu dritt

Stephan HOBE

50 Jahre Mondlandung – 40 Jahre Mondabkommen

Norbert HORN

Abwehr der Haftung für internationale Staatsanleihen durch

gesetzgeberische Selbstbedienung? Eine Nachlese

Cristina HOSS

The times they are a-changin’:

Die Immunität internationaler Organisationen im Wandel?

Peter HUBER

Der Cordanzug von Amazon –

Hinweispflichten bei Rechtswahl und Gerichtsstandsvereinbarung

Abbo JUNKER

Die Rück- und Weiterverweisung (Renvoi) nach dem Inkrafttreten der Europäischen Güter- und Erbrechtsverordnungen

Peter KINDLER

Urteilsfreizügigkeit für derogationswidrige Judikate? –

Ein rechtspolitischer Zwischenruf auf dem Hintergrund der 2019 HCCH Judgments Convention

Christian KOHLER

Parteiautonomie, zwingendes Recht und loyale Zusammenarbeit in der EU

Juliane KOKOTT und Wolfgang ROSCH

Eingriffsnormen und ordre public im Lichte der Rom I-VO, der Rom II-VO, der EuGVVO und der EU-InsVO

Vesna LAZI? and Sonja A. KRUISINGA

Prorogation of Jurisdiction:

Validity Requirements and Methods of Interpretation

Stefan LEIBLE und Felix M. WILKE

Funktionale Überlegungen zur kollisionsrechtlichen Wahl nichtstaatlicher Regelwerke

Walter F. LINDACHER

Kautionslastfreistellung nach § 110 Abs. 1 ZPO – Die causa Liechtenstein

Dirk LOOSCHELDERS

Gleichgeschlechtliche Ehen im Internationalen Privat- und Verfahrensrecht

Maria Chiara MALAGUTI

Sovereign Debt Restructuring and Protection of Creditors in the European Union through the Lenses of Most Recent Case Law

Heinz-Peter MANSEL

Zum Anwendungsbereich des Art. 24 Nr. 2 EuGVVO beim verschmelzungsbedingten squeeze out und Drittklagen gegen sachverständige Prüfer

Dieter MARTINY

Private international law aspects of geo-blocking and portability

Felix MAULTZSCH

Forumsfremde Eingriffsnormen im Schuldvertragsrecht

zwischen Macht- und Wertedenken

Francesca MAZZA

Von lachenden Doppelerben und anderen Streithähnen – Für ein neues Selbstverständnis des IPR als Recht der internationalen Integration im privatrechtlichen Bereich

Ralf MICHAELS

A Global Restatement of Private International Law?

José Antonio MORENO RODRÍGUEZ

The new OAS Guide on International Contracts

Peter Arnt NIELSEN

A Global Framework for International Commercial Litigation

Yuko NISHITANI

Kulturelle Identität und Menschenrechte im Internationalen Privatrecht

Luca G. RADICATI DI BROZOLO

Competition between Cross-Border Dispute Settlement Mechanisms: Domestic Courts, Arbitration and International Commercial Courts

– Procedural and Substantive Options for Litigants –

Oliver REMIEN

Drittstaatliche Handelsvertreter und die Richtlinie 86/653 in den Fängen der nationalen selbstbeschränkten Sachnorm und der Eingriffsnormenregelung

des Art. 9 Rom I-VO – Bemerkungen zu EuGH Rs. C-507/15 – AGRO 

Herbert ROTH

Der Gerichtsstand der unerlaubten Handlung nach Art. 7 Nr. 2 EuGVVO und die Bedeutung des Erfolgsorts für den Ersatz reiner Vermögensschäden

Giesela RÜHL

Die Haager Grundregeln über Rechtswahlklauseln in internationalen Handelsverträgen: Ein effizienter Rahmen für den Wettbewerb der Rechtsordnungen im Vertragsrecht?

Haimo SCHACK

Das auf Altersgrenzen anwendbare Recht

Stephan W. SCHILL

Linking Private and Public International Law: the Example of Determining

Corporate Nationality in Germany’s Investment Treaty Network

Anja SEIBERT-FOHR

La fonction et le contenu de la dignité humaine en droit international

Dennis SOLOMON

Internationale Entscheidungskollisionen zwischen staatlicher Gerichtsbarkeit und privater Schiedsgerichtsbarkeit

Andreas SPICKHOFF

Gerichtsstände und grenzüberschreitender Autokauf im Internet

Michael STÜRNER

Politische Interessen und Internationales Privatrecht

Karsten THORN und Marian THON

Der Auslandsbezug im IPR

Luboš TICHÝ

Fremdes Recht im Revisionsverfahren (Eine rechtsvergleichende Skizze über die Revisibilität des ausländischen Rechts)

Marc-Philippe WELLER, Jan-Marcus NASSE und Laura NASSE

Klimaklagen gegen Unternehmen im Licht des IPR

Matthias WELLER

The HCCH 2019 Judgments Convention: New Trends in Trust Management?

Volker WIESE

Der kollisionsrechtliche Rahmen für die grenzüberschreitende Verbraucherstreitbeilegung

Joachim ZEKOLL

Die Anerkennungsfähigkeit von Punitive Damages – Bedarf nach einer Neubewertung?

 

II. Rechtsvergleichung und Rechtsangleichung

Jürgen BASEDOW

Soft Law for Private Relations in the European Union

Spyridon V. BAZINAS

Does the World Need Another Uniform Law on Factoring?

Klaus Peter BERGER

Herbert Kronke und die „Schleichende Kodifizierung“ des transnationalen Wirtschaftsrechts

Hans-Georg BOLLWEG

Die Übereinkünfte von Kapstadt: beschlossene und künftige Protokolle – Innenansichten aus deutscher Perspektive –

Michael Joachim BONELL

The New Version of the UNILEX Data Base on the Unidroit Principles and the CISG – Upgraded in Form and Enriched in Content

Richard M. BUXBAUM

Montesquieu and the Cape Town Convention: of Bankruptcy and Civil Procedure

Remo CAPONI

Nuovi strumenti processuali europei di tutela collettiva

Heather CLARK, Barbara CONCOLINO and Ana MORALES RAMOS

The Broader Legacy of the Iran-United States Claims Tribunal

Michel DESCHAMPS

The Impact of the Cape Town Convention on the Assignment of Receivables

Nina DETHLOFF

Vielfalt oder Einheit? Ein Blick auf den Prozess der Angleichung des Familienrechts in den USA

Bénédicte FAUVARQUE-COSSON

Les trois paradoxes des Principes d’Unidroit relatifs aux contrats du commerce international

Marcel FONTAINE

L’harmonisation du droit des contrats dans les pays de l’OHADA :

Souvenirs et Perspectives

Martin GEBAUER

Zu den methodischen Ursprüngen funktionaler Rechtsvergleichung – Sachnorm, Kollisionsnorm und Qualifikation

Stefan J. GEIBEL

La « fiducie-fondation » : une alternative aux fondations à personnalité morale ?

Roy GOODE

Creativity and Transnational Commercial Law: from Karkhemish to Cape Town

Bernd GRZESZICK

Diversity in and by Law – the Example of Federal and State Constitutions

Christian HATTENHAUER

„Das ist Grönländisches Recht, und ein sehr Natürliches!“

Burkhard HESS

Prozessökonomie und Judicial Efficiency – Verfahrensmaximen im Schnittpunkt zwischen nationaler Kodifikation und internationaler Maßstabsbildung –

Stefan HUBER

Überregionale Privatrechtsangleichung: weiches hard law als modernes Erfolgsrezept

Erik JAYME

Giovanni Pieraccini (1918 – Viareggio – 2017) und die Entwicklung des Kunsthandelsrechts

Tatjana JOSIPOVI?

MAC Protocol and Croatian Registered Security Rights in Mining, Agricultural and Construction Equipment

Thomas KEIJSER

Enforcement of Security Interests in Transnational Commercial Law: Balancing Tradition and Innovation

Catherine KESSEDJIAN

Prendre la transnationalité au sérieux

Eva-Maria KIENINGER

Grenzüberschreitende Kreditsicherung an Mobilien 2019: Pretoria, Wien, Brüssel

Caroline KLEINER

Cryptocurrencies as Transnational Currencies?

Jens KLEINSCHMIDT

Einheit und Vielfalt im romanischen Rechtskreis am Beispiel der Vertragsaufhebung

Souichirou KOZUKA

The Cape Town Convention and the “Fitness” to the Context: Considering the Features of Aircraft, Rail and Space Financing

Sebastian KREBBER

Die Verzahnung von mitgliedstaatlichem Recht und punktuellen unionsrechtlichen Vorgaben bei der Angleichung von Arbeitsrecht

innerhalb der europäischen Union

Karl KREUZER

Religiöse Gerichte und religiöses Recht im modernen Staat

Hans KUHN

Zurück zu den Wurzeln: Die privatrechtliche Erfassung von Token im liechtensteinischen und schweizerischen Recht

Matthias LEHMANN

Vom internationalen Kapitalmarktrecht zum globalen Finanzmarktrecht

Thomas LOBINGER

Rechtsdogmatik und Rechtsvergleichung im europäischen Betriebsübergangsrecht

Robert MAGNUS

Rückholansprüche – Eine eigenständige Anspruchskategorie

Ulrich MAGNUS

CISG and Africa

Gerald MÄSCH

One Size Fits All? – Eine Skizze zum Beweismaß im Transnational Commercial Law 

Ewan MCKENDRICK and Stefan VOGENAUER

Supervening Events in Contract Law: Two Cases on the Interaction of National

Contract Laws, International Uniform Law and ‘Soft Law‘ Instruments

Charles W. MOONEY, JR.

Herbert Kronke: The Unidroit Years and Beyond

Peter-Christian MÜLLER-GRAFF

Algorithmen im Kartellrecht

Wolfgang OEHLER

Zu Nutzen und Notwendigkeit eines internationalen Einheitskaufrechts in einem leisen Gelehrtendisput zwischen Ernst Rabel und Hans Großmann-Doerth

Charalambos (Haris) P. PAMBOUKIS

Fragments of Legal Discourse on the Future of Global Law

?aslav PEJOVI?

Development of Carrier by Sea Liability: from Roman Law to the Rotterdam Rules

Andreas PIEKENBROCK

Der (Rück-)Erwerb des Nichtberechtigten – rechtsvergleichende Überlegungen zu einem Klassiker des Sachenrechts

Giuseppe B. PORTALE

Vom Codice Civile des Jahres 1942 zu den (Re)Kodifikationen: Die Suche nach einem neuen Handelsrecht

Teresa RODRÍGUEZ DE LAS HERAS BALLELL

Embracing Technological Disruption in International Transactions: Challenges for Legal Harmonization

Boris SCHINKELS

Fehlerhafte Produkte aus Fernost auf Amazon Marketplace – Für eine Produkthaftung transnationaler Warenhausplattformen als Quasi-Importeur

Kurt SIEHR

Unidroit Übereinkommen von 1995 über gestohlene oder

rechtswidrig ausgeführte Kulturgüter – Europäischer Kulturgüterschutz 25 Jahre nach dem Unidroit Übereinkommen

Rolf STÜRNER

Die Mündlichkeit im Zivilprozess – ein europaweit anerkanntes Verfahrensprinzip mit Zukunft?

Lajos VÉKÁS

Über das europäische Verbrauchervertragsrecht und die Herausforderungen bei der Umsetzung

Wolfgang WIEGAND

Brexit – ein Fall für die clausula rebus sic stantibus?

 

III. Handelsschiedsgerichtsbarkeit und Investor-Staat-Streitbeilegung

Mir-Hossein ABEDIAN and Reza EFTEKHAR

Invoking the Ground of Public Policy in Refusing the Recognition and Enforcement of an Arbitral Award Embodying the Remedy of Specific Performance

Georges AFFAKI

Arbitration in Banking and Financial Disputes Deconstructed

Rosemary BARKETT

A Call for More Specificity in Proposed Ethical Codes of Conduct Regarding the Submission of False Evidence in International Arbitration

Massimo V. BENEDETTELLI

“Harmonization” vs. “Pluralism” in the 1958 New York Convention: Balancing Party Autonomy with State Sovereignty

George A. BERMANN

The Self-styled “Autonomy” of International Arbitration

Charles N. BROWER

Harmonizing the Way Forward: Herbert Kronke

Giuditta CORDERO-MOSS

Towards Lean Times for Arbitrability?

Nadia DARWAZEH and Sarah LUCAS

From Paris with Love or How the French Courts Fight International Arbitral Awards Tainted by Corruption and Money Laundering

Giorgio DE NOVA

Arbitrato internazionale con sede in Italia e Prague Rules 

Siegfried H. ELSING

The New Approach to ISDS – Improvement or Setback?

Axel FLESSNER

Investitionsschutz und Schiedsrecht – Ein schräges Verhältnis

Daniel GIRSBERGER

Von Chamäleons und Hybriden in der grenzüberschreitenden Bewältigung von Wirtschaftskonflikten

Thomas JOHNSON and Sean COLENSO-SEMPLE

Investment Agreements between Developed Countries: Unintended Consequences and Disenchantment

Athanassios KAISSIS

Awards Set Aside in Their Country of Origin. Two Incompatible Schools of Thought

Christoph A. KERN

The Flight from ISDS

Katharina LUGANI

Das lex fori-Prinzip im Schiedsverfahrensrecht – ein überholter Theorienstreit?

Peter MANKOWSKI

Die Schriftform des Art. II (2) UNÜ und ihr Transfer in die digitale Moderne 1475

Werner MELIS

70 Jahre Internationale Handelsschiedsgerichtsbarkeit

Patricia NACIMIENTO, Dirk OTTO and Nicola PORT

The New York Convention and the Rule of Law: Obligation of the Tribunal to Prevent Surprises for the Parties?

Thomas PFEIFFER

Erstreckung von Schiedsvereinbarungen auf Organwalter von Gesellschaften

Jörg PIRRUNG (†)

EuGH und internationale Investitions(schieds)gerichtsbarkeit

Dorothee RUCKTESCHLER und Tanja STOOSS

Die vorzeitige Beendigung der Schiedsrichtertätigkeit

Jürgen SAMTLEBEN

Internationale Handelsschiedsgerichtsbarkeit in Lateinamerika – Eine Skizze 1529

Maxi SCHERER

Article II(2) of the New York Convention is Dead! Long Live Article II(2)! 1543

Christoph SCHREUER

Pre-Investment Activities

Rolf A. SCHÜTZE

Die Dutco-Entscheidung. Probleme der Schiedsrichterbestellung in Mehrparteienschiedsverfahren

Jamal SEIFI

Globalization of the International Arbitral Process: Trends and Implications

Bruno SIMMA and Jan ORTGIES

Six Considerations before You Begin Interim Measures Proceedings in International Arbitration

David P. STEWART

Sovereignty, Natural Resources, Injunctions, and the Public Policy Exception to the Enforcement of Foreign Arbitral Awards

Chris THOMALE

Rechtsprechung als Öffentliches Gut – Über die gesellschaftlichen Kosten der Schiedsgerichtsbarkeit

Christian TIETJE and Andrej LANG

The (Non-)Applicability of the Monetary Gold Principle in ICSID Arbitration Concerning Matters of EU Law

Rolf TRITTMANN and Nikolaos TSOLAKIDIS

Looking into the Crystal Ball: The Future of Commercial Arbitration and European Union Law

Wolfgang WURMNEST

Die Durchsetzung von Art. 101, 102 AEUV durch Schiedsgerichte: Ein Spannungsfeld

 

IV. Ausländisches und deutsches Privat- und Wirtschaftsrecht

Necla AKDA? GÜNEY

Ein neues Rechtsinstitut im türkischen Aktienrecht: Die Klage auf Auflösung aus wichtigem Grund

Neil ANDREWS

Contract Law: Interpretation and Breach

Christian BALDUS

Labeo oder Das Geld, die Macht und der Tod

Christoph BENICKE

Haftung des Herstellers für Mangelfolgeschäden im Wege des Händlerregresses

Talia EINHORN

The Israeli Statute on National Book Price Maintenance – A Critical Evaluation

Frédérique FERRAND

L’avenir de la Cour de cassation française : réformer ou révolutionner ?

Holger FLEISCHER und Yannick CHATARD

Zur Reform des französischen Gesellschaftsrechts durch die Loi PACTE: Intérêt social – raison d’être – société à mission

Henry Deeb GABRIEL

From Formalism to Instrumentalism: The Inevitability of the Decline of the Concept of Title in the American Law of Personal Property Security Rights 1735

Attila HARMATHY

Credit

Hideki KANDA

Rethinking Property Rights in the Digital Age

Julia KLAUER

Die Bestellung von Pfandrechten an einen Sicherheitentreuhänder

Edgar MATYSCHOK

Europäischer Know-how-Schutz und deutsche Berufsfreiheit

Salvatore PATTI

Il testamento pubblico della persona anziana «vulnerabile»

Jorge SÁNCHEZ CORDERO

Patrimoine Culturel – Réflexions mexicaines

Uwe H. SCHNEIDER

Ad-hoc-Publizität im Konzern

Klaus-Peter SCHROEDER

Franz Anton Wilhelm Gambsjäger (1752–1816) – Ein Heidelberger Rechtslehrer im Umbruch der Epochen

Markus STOFFELS

Sprachrisiko bei Abschluss von Arbeitsverträgen mit ausländischen Arbeitnehmern

 

The publisher’s website is here.

 

 

 

Written by Inez Lopes (Universidade de Brasília) and Fabrício Polido (Universidade Federal de Minas Gerais)

 

Following the successful repercussion of the Webinar PIL & Covid-19: Mobility of Persons, Commerce and Challenges in the Global Order, which took place between 11 and 22nd May 2020, the Scientific Committee headed by Prof. Dr Inez Lopes (Universidade de Brasília), Prof. Dr Valesca R. Moschen (Universidade Federal do Espírito Santo), Prof. Dr Fabricio B. Pasquot Polido (Universidade Federal de Minas Gerais), Prof. Dr Thiago Paluma (Universidade Federal de Uberlandia) and Prof. Dr Renata Gaspar (Universidade Federal de Uberlandia) is pleased to announce that the Webinar´s videos are already available online (links below). The committee thanks all those professors, staff and students who enthusiastically joined the initiative. A special thank is also given to the University of Minas Gerais and the Brazilian Centre for Transnational and Comparative Studies for the online transmissions. The sessions were attainable to both participants and the audience.

On the occasion of the Webinar, scholars and specialists from Argentina, Brazil, Uruguay, Mexico, Portugal, Spain and the United Kingdom shared their preliminary views on Private International Law (PIL) related issues to the existing challenges posed by Covid-19 outbreak in Europe and the Americas. The main objective of the Webinar was to focus on the discussions on three main multidisciplinary clusters for PIL/Covid-19 research agenda: (I) Private International Law, International Institutions and Global Governance in times of Covid-19; (II) Protection of persons in mobility and Covid-19: human rights, families, migrants, workers and consumers; (III) International Commerce and Covid-19: Global supply chains, investments, civil aviation, labour and new technologies.

The initiative brought together the ongoing collaborative research partnerships among peers from the University of Brasília-UnB, Federal University of Minas Gerais-UFMG, Federal University of Uberlândia-UFU, Federal University of Espírito Santo-UFES, State University of Rio de Janeiro, Federal Rural University of Rio de Janeiro, FGV Law/São Paulo, Federal University of Paraná, Federal University of Rio Grande do Sul, Universidad Nacional del Litoral/Argentina, Universidad de la República/Uruguay, CIDE/Mexico, University of Coimbra/Portugal, University of Minho/Portugal, Universidad de València/Spain, University of Edinburgh/UK, and besides to members of the American Association of Private International Law – ASADIP, the Latin American Society of International Law, the Latin American Research Network of International Civil Procedure Law and the Brazilian Association of International Law.

The proposal for e-gathering specialists was made in line with the intense academic engagement to explore potential critical views related to current and future avenues for Private International Law during a pandemic crisis. One could remark the strong narratives about “global” and “domestic” health crises and their interactions with the practical operation of PIL lawmaking and decision-making processes. More generally, participants raised several issues on how PIL framework, norm-setting and dispute resolution mechanisms would be intertwined with global health emergencies, national public health interests, social isolation and distancing, inequalities, poverty, the demise of social protection on global scale and restrictions on the mobility of families, groups, individuals, companies and organizations during a pandemic crisis.

The Webinar participants also talked about an expedite PIL agenda on core issues related to state and non-state actors’ practices during Covid-19 health crisis, challenges to international commerce, investment, labour and technologies and enforcement of human rights in cross-border cases. In view of the three clusters and specific topics, the Webinar sessions went into the analysis of the actual and potential impacts of Covid-19 outbreak on PIL related areas, its methodologies and policy issues. Participants highlighted that the PIL sectors on applicable law, jurisdiction, international legal (administrative and judicial) cooperation and recognition of foreign judgments will remain attached to the objective of resolving urgent cases, such as in the field of family and migration law (e.g. cases of international abduction, family reunion vs. family dispersion), consumer law, labour law, international business law and overall in cross-border litigation (e.g. reported cases involving state immunity, bankruptcy, disruption of global supply chains).

Likewise, there was a converging view amongst participants that PIL and its overarching principles of cooperation, recognition and systemic coordination will be of a genuine practical meaning for what is coming next in Covid-19 pandemic. Also, values on cosmopolitanism, tolerance and integration going back to the roots and veins of the Inter-American scholarship to PIL studies (since the end of 19^th century!) may help to improve institutions dealing with local, regional and global. Likely those principles and values could provide PIL community with ‘cautionary tales’ in relation to existing trends of opportunistic nationalism, refusal of cooperation and threats with foreign law bans (for example, with regard to specific states, migrants and even businesses). As to policy level and to State practices (connected to international politics and public international law), participants have raised various concerns about the mobility of persons, sanitary barriers and national campaigns perniciously devoted to spreading xenophobia, marginalising groups, minorities and migrants. Some participants have also referred to the dangers of unilateral practices of those States advocating a sort of international isolation of countries and regions affected by Covid-19 without engaging in cooperation and dialogues. Even in those extreme cases, there will be harmful consequences to PIL development and its daily operation.

Inevitably, the tragedies and lost lives in times of Coronavirus have made participants reflect upon the transformative potentials for international scholarship and policy in a multidisciplinary fashion. For example, as remarked in some panels, in order to engage in a constructive and policy-oriented approach, PIL scholarship could refrain from any sort of ‘black-letter’ reading or absenteeism concerning Covid-19.  At this stage, a sort of ‘political awareness’ should be encouraged for studies in public and private international law.  Issues on economic reconstruction (rather than simply ‘economic recovery’), access to public health, disruptive technologies, generational environmental concerns, labour markets, access to credit will be highlighted in global governance talks during Covid-19 pandemic and beyond. Some participants conceive the moment as “reality shock” rather than “mindset change” in facing good/bad sides of the pandemic.

As a preliminary matter of housekeeping method, participants shared some conceptual and normative questions in advance to the Webinar as a kick-off stage. A first teaser was initially to generate discussions about the interplay between state actors, international institutions, International Health Law and PIL. One of the departing points was the impact of the global sanitary emergency on individuals, families, organizations and companies and overlapping goals of state powers, public ordering and transnational private regulation. In addition, participants raised further concerns on the current international institutional design and PIL roles. Covid-19 accelerated and openly exposed the weakness of international institutions in guiding States and recalling their obligations concerning the protection of citizens during national emergencies or providing aid to most states affected by the outbreak of a pandemic disease. That scenario reveals existing gaps and bottlenecks between international, regional and national coordination during health emergencies (for example, the World Health Organization, Organization of American States and the European Union in relation to Member States). Participants also proposed further questions whether a global health emergence would change current views on jurisdiction (prescriptive, adjudicatory and executive), particularly in cases where cooperation and jurisdictional dialogues are refused by states in times of constraints and ambivalent behaviours in global politics.

Interdisciplinary PIL approaches also allowed participants to draw preliminary lines on the intersectionality between global health, national policies and jurisdictional issues, particularly because of the distinct regulatory frameworks on health safety and their interplay with cross-border civil, commercial and labour matters. The Coronavirus outbreak across the globe paves the way to rethink roles and new opportunities for international organizations, such as the United Nations, WHO, WTO, the Hague Conference of Private International Law, European Union, ASEAN, Mercosur and Organization of American States. One of the proposals would be a proper articulation between governance and policy matters in those international institutions for a constructive and reactive approach to the existing and future hardship affecting individuals, families and companies in their international affairs during pandemics and global crises. Since Private International Law has been functionally (also in historical and socio-legal dimensions) related to “the international life” of individuals, families, companies, organizations, cross-border dealings, a more engaged policy-oriented approach would be desirable for the PIL/global health crisis interplay. To what extent would it be possible to seek convergence between PIL revised goals, health emergencies, new technologies, governance and “neo-federalism” of organizations for advanced roles, new approaches, new cultures?

Some panels have directly referred to the opportunities and challenges posed ahead to PIL research agenda as well as to international, transnational and comparative studies. Both the Covid-19 outbreak and the global crisis require a study to continuously commit with inter- and multidisciplinary research and even strategically to recover some overarching values for a global order to be rebuilt. Reinforced and restorative cooperation, cosmopolitanism, ethics of care, solidarity and the entitlement of human rights (for instance, new proposed formulations for the right to development under the UN 2030 Agenda) are inevitably related to practical solutions for global health crises and emergencies. Humankind has been in a never-ending learning process no matter where in the globe we live. In a certain fashion, the despicable speech and behaviour of certain governments and global corporations’ representatives during the fight against the coronavirus generated endurable feelings in scholarly circles worldwide. Besides, political agents’ disdain regarding lost lives will never be forgotten.

How could PIL resist and respond to global challenges involving politics, international affairs and global health while at the same time it will be confronted with upcoming events and processes associated to extremist discourses and hatred, disinformation, historical revisionism, ‘junk science’ or everything else that disregards principles of global justice, international cooperation and protection of the rights of the person in mobility? Perhaps it is too early to reach consensus or a moral judgment on that. Nevertheless, the fight against Coronavirus/Covid-19 seems to extoll the powerful narratives of alterity, care, social protection, equalities, science, access to knowledge and education. Private International Law may play an important and critical role during forthcoming ‘austerity projects’ that may come during these dark sides and days of our History. As recalled by participants, the present requires our communities to engage in new proposals to support people, enterprises, consumers, workers and governments in their aspirations and endeavours for improving ‘social contracts’ or creating new ones. A pandemic crisis would not be the last stop or challenge.   

For the sake of a peaceful and safe global community, PIL has ‘tools and minds’ to raise awareness about a balanced, fairly and universally oriented compromise to keep global, regional and national legal regimes operating in favour of the mobility of persons, the recognition of foreign situations, enforcement of human rights, allocation of distributive international trade, as well as engaging in environmental and human development goals. For example, recent academic writings on hardship or ‘force majeure’ theories could indeed focus on technical solutions for international contracts and liability rules, which are suitable for accommodating certain interests (the ‘zero-sum’ game?) among public and/or private parties during Covid-19 and after that. Yet those reflections could not isolate themselves from a broader discussion on major social and economic hurdles associated to business environments worldwide, such as unequal access to finance, trade imbalance, precarious work, digital dispossession by new technologies and multi-territorial and massive violation of human rights. From now on, global fairness and solidarity appear to be crucial for a common talk and shared feeling for countries during their socioeconomic reconstruction. Cooperation remains a cornerstone to pursue equilibrium strategies and surely PIL and its academic community will remain a great place for an authentic and constructive exchange between ideas beyond PIL itself. Stay with your beloved, stay safe!

 

Inez Lopes (Universidade de Brasília)
Fabrício Polido (Universidade Federal de Minas Gerais)

 

*********

 

International Law, International Relations and Institutions: narratives on Covid-19 & challenges for Private International Law

05/11 – Monday – 10:30

Raphael Vasconcelos – State University of Rio de Janeiro; Fabrício B. Pasquot Polido – Federal University of Minas Gerais; Renata Gaspar – Federal University of Uberlândia

Video here

 

PIL, Global Governance, mobility of persons and Covid-19: enforcement of sanitary measures, international public policy and critical debates

05/12 – Tuesday – 16:30

Paula All – National University of Litoral/ Argentina; Rosa Zaia – Federal University of Uberlândia; Renata Gaspar – Federal University of Uberlândia

Video here

 

PIL, state immunity, international organizations and cross-border civil/commercial litigation in Covid-19

05/13 – Wednesday – 10:30

Valesca R. Borges Moschen – Federal University of Espírito Santo; Martha Olivar Jimenez – Federal University of Rio Grande do Sul; Fabrício B. Pasquot Polido – Federal University of Minas Gerais; Tatiana Cardoso Squeff – Federal University of Uberlândia

Video here

 

Emerging issues for international protection of consumer tourist and Covid-19

05/14 – Thursday – 10:30

Guillermo Palao Moreno – University of València/Spain; Tatiana Cardoso Squeff – Federal University of Uberlândia; Valesca R. Borges Moschen – Federal University of Espírito Santo

Video here

 

Covid-19, persons in mobility, social and sexual rights at transnational level: violence, vulnerability, xenophobia and discrimination

05/15 – Friday – 10:30

Tatyana Friedrich – Federal University of Paraná; Mariah Brochado – Federal University of Minas Gerais; Francisco Gomez – University of València / Spain; Raphael Vasconcelos – State University of Rio de Janeiro

Video here

 

Global digital economy, data protection, online misinformation and cybersecurity in times of Covid-19: jurisdictional and international legal cooperation

05/18 – Monday – 10:30

Anabela Susana Gonçalves – University of Minho / Portugal; Alexandre Pacheco – Getúlio Vargas Foundation – FGV / Direito-SP; Fabrício B.P. Polido – Federal University of Minas Gerais; Inez Lopes – University of Brasília – UnB

Video here

 

Civil aviation and Covid-19: current landscape for transportation of passengers and international commercial transactions

05/19 – Tuesday – 10:30

Inez Lopes – GDIP-Aéreo-Espacial / University of Brasília; Fabrício B. Pasquot Polido – Federal University of Minas Gerais; Marcelo Queiroz – GDIP-Aéreo-Espacial / UnB and GETRA / UnB; Fernando Feitosa – GDIP-Aero-Espacial / UnB and GETRA / UnB

Video here

 

Covid-19, foreign investments, integrated markets and PIL goals: regulatory choices, critical infrastructure and litigation

05/20 – Wednesday – 10:30

Laura Capalbo – University of the Republic / Uruguay; Veronica Ruiz Abou-Nigm – University of Edinburgh / UK; Ely Caetano Xavier Junior- ICHS – Federal Rural University of Rio de Janeiro

Video here

 

Covid-19 & future of work in the global order: aspects of DIP, employment contracts, outsourcing and worker protection

05/21 – Thursday – 10:30

Marcia Leonora Orlandini – Federal University of Uberlândia; Marcel Zernikow – State University of Rio de Janeiro; Maurício Brito – GDIP-Transnational Justice / UnB

Full video here.

 

Covid-19, International commerce, global supply chains, WTO and beyond

05/22 – Friday – 16:30

María Mercedes Albornoz – CIDE / Mexico; Rui Dias – University of Coimbra / Portugal; Fabio Morosini – Federal University of Rio Grande do Sul; Renata Gaspar – Federal University of Uberlândia

Full video here

 

Covid-19, PIL and new technologies: research opportunities for Ph.D Students 05/19 – Tuesday – 19:00

Cecília Lopes – Master’s Student / UFMG; Fernanda Amaral – Master’s Student / UFMG

Full video here

 

Covid-19, PIL and protection of vulnerable communities: research opportunities for Ph.D Students

05/22, Friday – 10:30 – Márcia Trivellato – Doctoral candidate/ UFMG;  Thaísa Franco de Moura – Doctoral candidate/ UFMG; Diogo Álvares – Master student/UFMG;

Full video here

Written by Tanja Domej, University of Zurich

Note: This blogpost is part of a series on „Corporate social responsibility and international law“ that presents the main findings of the contributions published in August Reinisch, Stephan Hobe, Eva-Maria Kieninger & Anne Peters (eds), Unternehmensverantwortung und Internationales Recht, C.F. Müller, 2020.

1. It is essential for the effective enforcement of human and workers’ rights to create effective local institutions and procedures. This encompasses functioning, trustworthy and accessible civil courts, but also other public, private and criminal institutions and mechanisms (e.g. permission, licencing or inspection procedures to ensure safety in the workplace; accident insurance; trade unions). Civil litigation cannot be a substitute for such mechanisms – particularly if it takes place far away from the place where the relevant events occurred.

2. This, however, is not a reason against ensuring effective enforcement mechanisms, including judicial mechanisms, for private law claims arising from violations of human rights or claims aiming to prevent or to terminate such violations. Such judicial proceedings can also help to promote the establishment of effective local mechanisms for preventing and remedying violations.

3. The usual difficulties arising in cross-border litigation tend to be aggravated in cases concerning human rights violations in developing countries. In addition to issues of jurisdiction and choice of law, there are often considerable challenges particularly with respect to litigation funding, fact-finding and establishing the content of foreign law, if required.

4. Legal aid alone usually is not a viable financial basis for corporate human rights litigation. The funding of such claims largely depends on market mechanisms, particularly on success-based lawyers’ fees or commercial litigation funding. Because of the moral hazard that may arise in this context, it is desirable to promote the establishment of public-interest litigation funders. Nevertheless, “entrepreneurial litigating” in the field of corporate human rights cases cannot be considered as per se abusive. There seems to be a need, however, to monitor practices in this field closely to assess whether further regulation is required.

5. Where cross-border judicial cooperation is not functioning, taking of evidence located in a foreign state without involving authorities of the state where such evidence is located becomes increasingly important. A generous approach should be adopted in cases where “direct” taking of evidence neither violates legitimate third-party interests nor involves the use or threat of compulsion in the territory of a foreign state.

6. In cases where liability for damage inflicted by the violation of human rights standards depends on a business’s internal operations, it is essential for an effective access to remedy that either the burden of proof with respect to the relevant facts is on the business or that there is a disclosure obligation that ensures access to relevant information. Where such disclosure could endanger legitimate confidentiality interests (particularly with respect to trade secrets), appropriate mechanisms to protect such interests should be put in place.

7. Collective redress mechanisms can improve access to justice with respect to corporate human rights claims. Meanwhile, reducing an excessive burden on the courts that could result from a large number of parallel proceedings currently does not seem to be as important a consideration in practice in the field of corporate human rights litigation as it can be in other fields of mass tort litigation. Appropriate safeguards have to be put in place to protect both the legitimate interests of defendants and those of the members of the claimant group. When designing such safeguards, it is important to ensure that they do not lead to the obstruction of legitimate claims. Particularly in collective redress proceedings, the court should have strong case management and control powers, both during the proceedings and in the case of a settlement.

8. In addition to claims aiming at remedies for victims of violations, private law claims brought by non-government organisations, by public bodies or by individuals can at least indirectly contribute to the enforcement of human rights standards. Possible examples are claims on the basis of unfair competition, and possibly also contractual claims, because of false statements about production standards. Actions by associations or popular actions for injunctive or declaratory relief could also contribute to private enforcement of human rights standards. It remains to be seen whether litigation among businesses concerning contractual obligations to comply with human rights standards will play a meaningful role in this field in the future as well.

9. Soft law mechanisms and alternative dispute resolution can supplement judicial law enforcement mechanisms, but they are not a substitute for judicial mechanisms. In particular, human rights arbitration depends on a voluntary submission. Its practical effectiveness therefore requires the cooperation of the parties to the dispute. It would, however, be possible to create incentives for such cooperation.

 

Full (German) version: Tanja Domej, Zivilrechtliche Rechtsdurchsetzungsmechanismen, in: August Reinisch, Stephan Hobe, Eva-Maria Kieninger & Anne Peters (eds), Unternehmensverantwortung und Internationales Recht, C.F. Müller, 2020, pp. 229 et seq.

Thanks to the entering into force of the Dutch Collective Redress of Mass Damages Act (Wet afwikkeling massaschade in collectieve actie, WAMCA) on 1 January 2020, there has been an increase in prospective litigation against Volkswagen in the Netherlands and other countries in Europe involving the Volkswagen emissions scandal (also known as Dieselgate). We have previously reported on this law here and also on ongoing litigation against Volkswagen here (CJEU) and here (UK).

One of the institutes / organisations taking advantage of this opportunity is the Diesel Emissions Justice Foundation (DEJF), which was founded in the Netherlands, and which is seeking to be the exclusive representative in a collective redress action against Volkswagen. The DEJF is currently acting in the Netherlands, Belgium and France and has recently extended its activities to the rest of Europe provided that certain conditions are fulfilled (e.g. customers have not yet been compensated – one cannot be compensated twice and has to choose one representative – see more information here).

As indicated on its website, on 13 March 2020, DEJF summoned Volkswagen et al. to appear before the Amsterdam District Court under new WAMCA proceedings. DEJF requested to be appointed as the Exclusive Representative Organisation (“Lead Plaintiff”). A summary in English is available here and the full text in Dutch is available here. See a summary of the progress here.

Undoubtedly, the ongoing litigation in other parts of the world and its final outcome will have an impact on this action. We will keep you informed.

By Radhika Parthasarathy

The advent of the internet has led to mass-communication like no other. Everything one wants is at the tip of our fingers now, thanks to mobile phones, laptops, iPads and the likes. Mass consumerism has seen an exponential increase in the last ten years. If one needs to buy quirky stationery, we have the likes of Amazon and Chumbak online; if one wants to watch the latest episode of Brooklyn Nine-Nine, Netflix does the needful; if we wish to read multiple newspapers, while also saving papers, multiple Apps such as InShorts exist.  Platforms such as these stream large quantities of data across the globe, thus bringing the world closer, but also leading to certain jurisdictional issues in case of litigations. Such activity requires a cross-cutting need and definition of personal jurisdiction.

Personal jurisdiction relates to the jurisdiction of a Court to adjudge a dispute between parties. The general rule is that to exercise such jurisdiction, physical presence is mandatory. As such, jurisdiction in personam is not to be exercised over a person who is not subject to the jurisdiction of courts. This has become a commonly accepted principle domestically and globally. However, the advent of technology and the pervasiveness of the world wide web has led to massive debates in this regard. How is personal jurisdiction then to be adjudicated for matters of cyber torts, or that of defamation that takes place online? In the context of the internet, personal jurisdiction oft refers to and deals with websites or services on the internet that deal with advertisements or promotions of business or brands online in their home State but debate their liability to be litigated within another foreign State. However, courts in the United States, Europe and, India are now determining how to assess and enforce such jurisdiction.[1]

Understanding Personal Jurisdiction: the United States and Europe

A.   The United States

In the United States [“the US”], the criteria of “certain minimum contact” with the jurisdiction where the cyber transaction has occurred must be met to assess personal jurisdiction. This aligns with the Long Arm Statute of the United States of America. Traditionally, in International Shoe v. Washington, the Supreme Court held that a defendant may be held liable for such cross-border issues if they have at least a minimum level of contact with the State that seeks to hold them liable and there must be a reasonable expectation of being sued in that State.[2] In this regard, courts in the US have held that mere advertisements on a website are not enough to hold a defendant liable for a cross-border tort and to exercise personal jurisdiction there.[3]

Before this, however, was the iconic case, Calder v. Jones,[4] where the Court, in 1984, held that where an action is targeted at a particular forum, even if there is minimum contact, the “effects” test may be applied. In this case, an article was written and edited in Florida, the article concerned a resident in California and relied on sources in California, and thus, the Court held that the intentional tortious act was “expressly aimed at California”. This test essentially, thus, lays down that where an act is done intentionally, has an effect within the forum state and is directed or targeted at the forum state, then jurisdiction will be satisfied.[5] Thus, the effects test is useful when the exact nature of the defendant’s internet activities need to be assessed vis-à-vis, injury caused to a resident elsewhere, in a different State.[6]

The legal position in the US has been seemingly settled, off late, in this regard in Zippo Manufacturing Co. v. Zippo Dot Com Inc,[7] which rendered the famous Zippo Test. Per the Zippo Test, a finding of jurisdiction would be contingent upon the nature of the website and sought to employ a sliding scale test. It further laid down two important points:

1. The interactive nature of the site, which would aid in quantifying the extent of the damage so caused;
2. The harmful effect within the jurisdiction of the concerned state.

Per Zippo, websites are of three kinds- websites that conduct business over the internet; websites where users exchange information with the host computers; and websites that do little more than present information.[8] However, this has been criticized for not providing enough information on the assessment of the extent of interactivity of the website to justify purposeful availment.[9]

Multiple cases, however, well into the 2000s, yet apply the Calder case. For instance, in Blakey v. Continental Airlines,[10] the minimum contacts test was applied along with the effects test to assess “proper jurisdiction”. This was further cemented by Young v. New Havem Advocate,[11] where two Connecticut newspapers defamed the warden of Virginian prison. Here, the court assessed the issues based on the Calder test once again and opined that proof must be derived that the defendant’s internet activity is expressly targeted at or directed to the forum State. Similarly, in Yahoo! Inc. v. La Ligue Contre Le Racisme et l’antisemitisme,[12] the Calder test was applied once again to establish personal jurisdiction between two French organizations and Yahoo (an American company). Thus, it seems more appropriate to say that Courts in the US, first apply the Zippo Test, but then apply the effects test as laid down in Calder to have a wholly encompassing test.

B.    European Standing

In the European Union [“EU”], the Brussels Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters [“Brussels Convention”][13] regulates acts concerning torts, delict and quasi-delict under Art. 5(3) and thereby, a defendant may be sued in the court of the place where the harm has occurred.[14] The leading law on the matter of defamation can be found in Shevill & Ors. v. Presse Alliance S.A.,[15] where a libellous article was published in one place but distributed across multiple jurisdictions. Here, the ECJ devised what came to be known as the mosaic approach and held that the place where the harm has occurred includes:

1. the place where publisher resides, or where the defamatory statement came into existence, or the place of publication;
2. the place of distribution or where the material was read and received.

This approach was also applied in Handelskwekerij G J Bier B. V. v. Mines de Potasse d’Alsace SA, where the Court held that the “place where the harmful event occurred” must be understood as being intended to cover both the place where the damage occurred and the place of the event giving rise to it.[16] However, this approach has led to criticism that it enables forum shopping for the plaintiff.[17] This approach suggests that the plaintiff may choose the more convenient forum under Art. 5(3) as one forum may have a more liberal approach to prove defamation than another.

Article 5(3) was subject to further interpretation in 2011 when the ECJ held that a person may bring an action for liability when their rights have been infringed on the internet before:

1. the courts of the Member State in which the publisher of that content is established; or
2. before the courts of the Member State in which the centre of his interests is based; or
3. the courts of each Member State in the territory of which content placed online is or has been accessible.[18]

This position has since been challenged in the Svensk Handel case, wherein Article 7 of the Brussels Recast Regulation (similar to Article 5(3)) was assessed.[19] Here, while the Court didn’t expressly reject the Mosaic Approach, it did, however, lay down that “the centre of interest” must be located and interpreted broadly to include residence, where the most harm occurs. However, the Court laid down an important safeguard by stating that any order for the takedown of insulting content cannot be initiated in every Member State where the website is accessible. Since the earlier days till now, there seems to be a newfound cogency in the application of personal jurisdiction for defamatory matters in the EU.

Banyan Tree Holdings and the Indian Position

In the case of Banyan Tree Holdings v. A. Murali Krishna Reddy,[20] the plaintiff is part of the hospitality business and has since 1994, used the word mark, “Banyan Tree” which has now acquired a secondary meaning. It also maintains websites that use the mark and are accessible in India. However, in 2007, the defendants began work on Banyan Tree Retreat and hosted a website which directed to a “Banyan Tree” project. The Plaintiffs contended that the use of this mark is dishonest and aimed at encashing on the reputation and goodwill of the Plaintiff. They also claim that it would lead to confusion and deception if such usage was so allowed.

In this case, the Court found that the website of the defendant is accessible in Delhi and is thus, not a passive website, as derived from American laws. Further, the defendant also sent a brochure to Delhi regarding their property’s sale. In this case, parties relied on the holdings and observations of International Shoe Co., the Zippo Test of “sliding scale”, Cybersell Inc. and the effects test in Calder, among multiple other American cases on the same issue. It then discussed cases from Australia and Canada before assessing the Indian Position on the same.

In India, there seems to have been some form of debate on such issues. In a similar factual matrix as Banyan Tree, the Delhi High Court in Casio India Ltd. v. Ashita Tele Systems Pvt Ltd.[21] held that even a mere likelihood of deception on the internet would entertain an actual action for passing off and no actual deception needed to be proven. Thus, the mere accessibility of the website from Delhi could invoke the Court’s jurisdiction. However, in another case,[22] the Court held that the mere accessibility of a website from one jurisdiction may not be enough or sufficient for a court to exercise its jurisdiction.

In Banyan Tree, on an analysis of these positions, Justice Muralidhar found that essential principles developed in other jurisdictions may be seamlessly adopted into our own.[23]  The Court chose to disagree with Casio and held that a passive website, with no intention to specifically target audiences outside the State where the host of the website is located, cannot vest the forum court with jurisdiction.[24] Further, it observed that the degree of the interactivity apart, the nature of the activity permissible and whether it results in a commercial transaction has to be examined while adjudging the “effects” test.[25] Additionally, there is a need to assess whether the Plaintiff can show a prima case that the specific targeting in the forum State by the Defendant resulted in an injury or harm to the Plaintiff within the forum state.[26] The Court thus chose to apply the “effects” test with the “sliding scale” taste, this reconciling the application of the Calder test with the Zippo Test in India.

On the matter of jurisdiction, the Court held that to establish a prima facie case under Section 20(c) of the Code of Civil Procedure, 1908 [“the CPC”], the Plaintiff will have to establish that irrespective of the passive or interactive nature of the website, it was targeted specifically at viewers in the forum State, which in this case would have been Delhi.[27] They will then have to establish that there has been specific harm or injury caused to it by the Defendant’s actions.

Conclusion: Certainty in India’s Position?

In India’s case, it has become abundantly clear that cross-border defamation will be adjudged as per Section 19 of the CPC, as per the residence of the defendant or where the wrong has been done. Additionally, India also follows the double actionability rule to adjudge applicable law in such matters. However, if the tort is committed outside India, then Section 19 yields to Section 20 of the CPC, and the territorial jurisdiction is adjudged as such.[28] The factors relating to the cause of action and its assessment have been discussed in multiple cases. For instance, online sale of property in a different jurisdiction did not constitute sufficient cause of action for courts in Kerala.[29] However, while the test in Banyan Tree may be quite descriptive, Muralidhar J. opines that it does not lay down a “one size fits all” test,[30] in the sense that while it is foolproof for an online commercial transaction and intellectual property issues, it does not cover the area of torts such as defamation.

In a differing opinion, in World Wrestling Entertainment, Inc. v. M/s Reshma Collection & Ors,[31] the Appellant was a Delaware based company providing the online sale of digital merchandise to customers world over and also in Delhi and held the trademark for the same. Here, the Court held that due to the spontaneous nature of the transactions (offer and acceptance and payment of consideration) over the internet, the cause of action is deemed to have occurred at the place the customer carried out his part of the transaction.[32]

The jurisprudence in such torts is still developing in India and largely follows the double actionability rule. The double actionability rule is the foundation or cross-border torts, particularly, defamation.[33] This rule lays down two points:

1. The act must be “actionable” as a tort in England; and
2. The act must be “non-justifiable” by the law of the place where it was committed. (this was eventually overruled by Boys v. Chaplin)[34]

This rule was further discussed and upheld in Govindan Nair v. Achuta Menon,[35] when the then Raja of Cochin (which was at the time an independent Indian State), sent a communication to the plaintiff excommunicating him from his caste in British India. The High Court applied the rule but dismissed the case as there was no trace of malice. In more recent times, the order in Baba Ramdev and Anr. v. Facebook Inc.,[36] is highly interesting. The allegation here was that a book based on the plaintiff was being circulated on a global basis by social media platforms, such as Facebook. The basic issue here was whether a global takedown order could even be passed by the Court. The Court essentially held that:

1. If the content was uploaded in India, or from IP addresses in India, the content had to be taken down, blocked/ restricted on a global basis;[37]
2. However, if uploaded from outside India, the Court cannot exercise its jurisdiction.[38]

Such exercise of jurisdiction has also been discussed in YouTube v. Geeta Shroff, wherein the Court held that any exercise of jurisdiction must be done assuming that the internet transaction is one akin to a real-life transaction, thereby ensuring that the Court cannot assume extra-territorial jurisdiction on the matter.[39]

Julia Hornle points out that the laws in the US are quite liquid on the point of personal jurisdiction and can be used to adapt to multiple scenarios.[40] However, tests in India have seemingly been fact-specific and not one test that can cover the entirety of actions that take place on the internet. Thus, courts may exercise jurisdiction either very broadly or very narrowly. However, this does not mean that India does not follow any minimum standard. The laws laid down in the US and other common law jurisdictions have gone a long way in establishing India’s position on personal jurisdiction in matters of cyber-transactions. Thus, it is easy to conclude by saying India has given the concept of personal jurisdiction a wide berth and a multi-dimensional interpretation and one can hope to have a “one size fits all” criteria in the foreseeable future, as Courts get better acclaimed with the use of and the advancement of technology in all fields – legal, commercial

[1] TiTi Nguyen, A Survey of Personal Jurisdiction based on Internet Activity: A Return to Tradition, 19 Berkeley Tech. L.J. 519 (2004).

[2] International Shoe v Washington, 326 U.S. 310 (1945)

[3] Cybersell, Inc. v. Cybersell, Inc., 130 F.3d 414 (9th Cir. 1997)

[4] Calder v. Jones, 465 U.S. 783 (1984)

[5] Id.

[6] Dudnikov v. Chalk & Vermilion, 514 F.3d 1063 (10th Cir. 2008).

[7] Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119

[8] Id; Christopher Wolf, Standards for Internet Jurisdiction, FindLaw (May 03, 2016), https://corporate.findlaw.com/litigation-disputes/standards-for-internet-jurisdiction.html

[9] No Bad Puns: A different Approach to the Problem of Personal Jurisdiction and the Internet, 116 Harv. L. Rev. 1821, 1833 (2003).

[10] Blakey v. Continental Airlines, 751 A.2d 538 (NJ 2000)

[11] Young v. New Havem Advocate, 315 F 3d 256 (4th Cir, 2003)

[12]Yahoo! Inc. v. La Ligue Contre Le Racisme et l’antisemitisme, 433 F.3d 1199 (9th Cir. 2006)

[13]Brussels Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters, Regulation 44/2001 (Dec. 22, 2000)

[14] Article 5(3) allows for two jurisdictions – the place of domicile of the defendant OR the place where the harm has occurred; Handelskwekerij G. J. Bier B.V. v Mines de Potasse d’Alsace S.A. (preliminary ruling requested by the Gerechtshof of The Hague) (Case 21/76) [1976] ECR 1735, [1978] QB 708, [1977] 1 CMLR 284.

[15] Shevill & Ors. v. Presse Alliance S.A., Case C-68/93 [1995] 2 W.L.R. 499

[16]  Handelskwekerij G J Bier B. V. v. Mines de Potasse d’Alsace SA, Case 21/76 [1976] E.C.R. 1735

[17] Christopher Forsyth, Defamation under the Brussels Convention: A Forum Shopper’s Charter?, 54(3) Cam. L.J. 515 (1995)

[18] eDate Advertising GmbH and Others v X and Société MGN Limited, Cases C-509/09 and C-161/10

[19] Bolagsupplysningen OÜ Ingrid Ilsjan v. Svensk Handel AB, Case C-194/16, ECJ

[20]Banyan Tree Holdings v. A. Murali Krishna Reddy, CS (OS) No.894/2008 (Nov. 23, 2009) [hereinafter Banyan Tree]

[21] Casio India Co. Limited v. Ashita Tele Systems Pvt. Limited 2003 (27) PTC 265 (Del)

[22] (India TV) Independent News Service Pvt. Limited v. India Broadcast Live Llc And Ors., 2007 (35) PTC 177 (Del.).

[23]Banyan Tree, supra note 20 at ¶38

[24] Id at ¶38

[25] Id at ¶42

[26]Id

[27] Id at ¶45

[28] Sarine Technologies v. Diyora and Bhanderi Corpn., 2020 SCCOnline Guj 140.

[29] Presteege Property Developers v. Prestige Estates Projects Pvt. Ltd., 2008 (37) PTC 413 (SC)

[30] Justice Muralidhar, Jurisdictional Issues in Cyberspace, 6 Ind. J. L & Tech. 1 (2010).

[31] World Wrestling Entertainment, Inc. v. M/s Reshma Collection & Ors, AO (OS) 506/2013 and CM Nos. 17627/2013 & 18606/2013, decided on October 15, 2014.

[32] Id.

[33] Philips v Eyre, 6 L.R. Q.B. 1, 28 (1870, Queen’s Bench).

[34] Boys v. Chaplin, 2 Q.B. 1 (1968, Queen’s Bench).

[35] Govindan Nair v. Achuta Menon, (1915) I.L.R. 39 Mad 433.

[36] Baba Ramdev and Anr. v. Facebook Inc, CS (OS) 27/2019

[37]Id at ¶96(i)

[38] Id at ¶96(ii)

[39] YouTube v. Geeta Shroff, FAO 93/2018

[40] Julia Hörnle, The Conundrum of Internet Jurisdiction and How US Law has Influences the Jurisdiction Analysis in India, 14 Ind. J. L. Tech. 183 (2018).