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Second Act in Dutch TikTok class action on privacy violation: court assesses Third Party Funding Agreements
Written by Eduardo Silva de Freitas (Erasmus University Rotterdam), Xandra Kramer (Erasmus University Rotterdam/Utrecht University) & Jos Hoevenaars (Erasmus University Rotterdam), members of the Vici project Affordable Access to Justice, financed by the Dutch Research Council (NWO), www.euciviljustice.eu.
Introduction
Third Party Litigation Funding (TPLF) has been one of the key topics of discussion in European civil litigation over the past years, and has been the topic of earlier posts on this forum. Especially in the international practice of collective actions, TPLF has gained popularity for its ability to provide the financial means needed for these typically complex and very costly procedures. The Netherlands is a jurisdiction generally considered one of the frontrunners in having a well-developed framework for collective actions and settlements, particularly since the Mass Damage Settlement in Collective Actions Act (WAMCA) became applicable on 1 January 2020 (see also our earlier blogpost). A recent report commissioned by the Dutch Ministry of Justice and Security found that most collective actions seeking damages brought under the (WAMCA) have an international dimension, and that all of these claims for damages are brought with the help of TPLF.
Is this a Conflicts Case?
In Sharp v Autorité des marchés financiers, 2023 SCC 29 (available here) the Supreme Court of Canada has held that a Quebec administrative tribunal, the Financial Markets Administrative Tribunal, can hear a proceeding brought by the administrative agency that regulates Quebec’s financial sector, the Autorité des marchés financiers, against four defendants who reside in British Columbia. The AMF alleged in the proceedings that the defendants had contravened the Quebec Securities Act.
The courts below, including a majority of the Quebec Court of Appeal, focused the analysis on s. 93 of the Act respecting the Autorité des marchés financiers, CQLR, c. A-33.2, which grants the FMAT jurisdiction to make determinations under the Securities Act. They interpreted and applied this provision in light of Unifund Assurance Co. v Insurance Corp. of British Columbia, 2003 SCC 40, a leading decision on the scope of application of provincial law, which held that a provincial regulatory scheme constitutionally applies to an out-of-province defendant when there is a “real and substantial connection”, also described as a “sufficient connection”, between the province and the defendant. This test was met on the facts [see para 22] and so the FMAT had jurisdiction. This analysis is not generally understood as being within the field of conflict of laws. Indeed, the majority of the Court of Appeal “saw no conflict of jurisdiction or any conflict of laws that would require the application of private international law rules to this case” [see para 29].
How to Criticize U.S. Extraterritorial Jurisdiction (Part II)
Written by Bill Dodge, the John D. Ayer Chair in Business Law and Martin Luther King Jr. Professor of Law at UC Davis School of Law.
There are better and worse ways to criticize U.S. extraterritorial jurisdiction. In Part I of this post, I discussed some shortcomings of a February 2023 report by China’s Ministry of Foreign Affairs, “The U.S. Willful Practice of Long-arm Jurisdiction and its Perils.” I pointed out that the report’s use of the phrase “long-arm jurisdiction” confuses extraterritorial jurisdiction with personal jurisdiction. I noted that China applies its own laws extraterritorially on the same bases that it criticizes the United States for using. I argued that the report ignores significant constraints that U.S. courts impose on the extraterritorial application of U.S. laws. And I suggested that China had chosen to emphasize weak examples of U.S. extraterritoriality, such as the bribery prosecution of Frédéric Pierucci, which was not even extraterritorial.
In this post, I suggest some better ways of criticizing U.S. extraterritorial jurisdiction. Specifically, I discuss three cases in which the extraterritorial application of U.S. law appears to violate customary international law rules on jurisdiction to prescribe: (1) the indictment of Huawei executive Wanzhou Meng; (2) the application of U.S. sanctions based solely on clearing dollar transactions through U.S. banks; and (3) the application of U.S. export controls to foreign companies abroad based on “Foreign Direct Product” Rules. The Ministry of Foreign Affairs report complains a lot about U.S. sanctions, but not about the kind of sanctions that most clearly violates international law. The report says much less about export controls and nothing about Meng’s indictment, which is odd given the tensions that both have caused between China and the United States. Read more
News
The Pax Moot teams solved the “impossible” case of SSF versus Telerel and the Watermelon companies
The Ulrich Huber round of the Pax Moot competition ended on Friday in the Meuse-Rhine Euroregion, at the University of Maastricht to be precise.
During three fierce days 34 Moot teams from all over Europe and as far as Georgia, Kazakhstan, India, Singapore and Uzbekistan pleaded against each other. They argued about whether self-employed content moderators for social media companies could be considered employees; about how to locate the damage that consists of the stress and mental health harm suffered by these digital nomads; about whether a UK subsidiary of an Irish company could be considered to be domiciled in the EU; about whether the proceedings instituted by a foundation under the Dutch WAMCA should be characterised as contract or tort; about whether a settlement in front of a UK court could be recognised under the 2019 Hague Judgments Convention and much more. They relied on old and new case law, reports and legal scholarship.
At the end, the University of Ljubljana won the competition, with Jindal Law School as the runner-up. The other two teams that made it to the semi-finals were the Universities of Sofia and Paris-Saclay.
The prize for the best memorials went to ESADE Law School, with the University of Ghent in second place, and Paris Dauphine and Sofia Universities in shared third places.
Jana Ušen won the best pleader’s award, followed by Brin Smole, both of Ljubljana University. In the third position was Joshua Tan and in fourth Ong Xin Yan, both of Singapore Management University.
Under the inexhaustible leadership of Marta Pertegás, expect the Pax team to be back with a new case in October/November, to be pleaded in Sofia in roughly one year’s time. Pax Moot is co-funded b y the European Commission.
Reciprocity in the Recognition and Enforcement of Foreign Judgments: Two Recent Contributions
Reciprocity in the field of recognition and enforcement of foreign judgments has long been a subject of passionate debate. While some scholars question its desirability, others firmly defend it as a legitimate legal requirement. What remains undeniable is that the topic continues to spark intense discussion and scholarly interest.
A clear illustration of this ongoing debate is provided by two recent publications addressing the issue from different perspectives and jurisdictions.
The first is an enlightening open-access article by Eszter PAPP and Nobumichi TERAMURA, titled “Enforcing Singapore Judgments in Cambodia: Reciprocity Under the Loupe“. The paper explores the practical and legal challenges related to the enforcement of Singaporean money judgments in Cambodia, with a specific focus on the requirement of reciprocity. Read more
Out Now: Gridel, Financial Markets and Instruments in Private International Law. A European and French Perspective A European and French Perspective
The multiple-award-winning book by Augustin Gridel (Université de Lorraine), Marchés et instruments financiers en droit international privé (Bruylant 2023), has just been published in English under the title Financial Markets and Instruments in Private International Law. A European and French Perspective. It features a preface by Louis D’Avout and a foreword by Christine Lagarde.