The Private International Law Dimension of the Principles

• Lausanne, Institut suisse de droit comparé • 10 October 2014• Veerle Van Den Eeckhout

PIL as a hinge

• Hinge-function of PIL• In context Reports Ruggie: hinge Access to

Remedies/Access to Justice• PIL: access to a judge/judges (jurisdiction issue) and a

norm (issue of applicable law); PIL-argumentation as in a two-stage racket

• PIL can open doors/keep them closed • Thus: importance PIL-rules• Ruggie: Duty States, Duty Respect, Access Remedies

– What about PIL-rules??

Access to Remedies

• Central hypothesis: civil proceedings in Europe, possibly against European mother company and non-European daughter company, non-European victims (plaintiffs), damage outside Europe

• Observation: Area at least partly covered by European PIL-sources (some other areas still dealt with on national level)

• European PIL: (also) ambition “access to justice”• Question: Level “access to justice” created by PIL rules and their

interpretation in this field? Opens door/keeps them closed?

• Presentation hereafter: mainly European PIL-sources; (meanwhile touching in a more general way some crucial PIL-issues and PIL-concepts in this area; cfr. Lugano-convention parallel to Brussels I Regulation)

PIL another legal hurdle for victims/facilitating role?

• Access remedies/Access Justice: several legal and other hurdles, e.g. financial hurdles for victims

• PIL: another – legal - hurdle? Or rather facilitating?

• PIL? Jurisdiction and applicable law (+ recognition/enforcement)

JURISDICTION

• Illustrative case jurisdiction: Shell Nigeria Case, the Netherlands

• Issue access to justice non-European victims, damage outside Europe, in proceedings in the Netherlands against European mother company and Nigerian Daughter company

• Granted access to European (Dutch) court: – Against mother company on basis of article 2 Brussels I Regulation

(concept “seat”: article 60 – creates possibility competence several European judges)

– Against daughter company (after discussion) on basis of article 7 Dutch Code of Civil Procedure : “related action”

A special jurisdiction issue: “forum non conveniens”

• Issue “forum non conveniens”• Was proposed/discussed during process recast Brussels I• Green paper, comments in document Leigh Day and various human rights organisations• (

http://ec.europa.eu/justice/news/consulting_public/0002/contributions/civil_society_ngo_academics_others/collective_contribution_leigh_day_and_co_and_human_rights_orgs_en.pdf ):

A phoenix risesfrom the ashes?

• Comments on conflictoflaws.net (http://conflictoflaws.net/2010/european-parliament-resolution-on-brussels-i/ on European Resolution on Brussels I, 7 September 2010:

• Gilles Cuniberti Post authorSeptember 14, 2010 at 3:01 pm A phoenix rises from the ashes• Robert Grabosch September 14, 2010 at 3:07 pm … and flies over all of Europe! May it please only stay in Britain!

• Finally no forum non conveniens in Brussels I bis (recast Brussels I)

• Attention possible new recasts/revisions Brussels I

• Possible implications introduction forum non conveniens, not only in proceedings against European mother, also in proceedings against non-European daughter (cfr. Hypothesis Shell case, related action) – risk denial justice if introduce forum non conveniens?

Some other jurisdiction issuesin European PIL and/or National PIL

• Article 5 par 3 Brussels I Regulation; could be intepreted in a way as possibly creating an additional ground of jurisdiction?? (issue “Handlungsort”when filling in and interpreting – cfr below applicable law)

And (discussions during recast Brussels I)• “Lis pendens” in European/other PIL-sources?• “Forum necessitatis” in European/other PIL-sources?• Exclusion or not national grounds of jurisdiction in

European PIL-source – European rules absorbing everything? Forum necessitatis and related actions in European PIL-source?

Applicable law: all roads lead to Rome II??

• Issue characterization: tort law or company law or contract law or procedural aspect??

(each of these avenues could open new possibilities for victims/create another hurdle)

• Tort law: Rome II Regulation (/national rules)• Broad substantive scope• Limited temporal scope• “Universal” geographical scope• Shell Nigeria Case: still national rules• Future: more and more Rome II

Basic rule Rome II

• Preamble (16): provides that in applying the lex loci damni, “a fair balance between the interests of the person claimed to be liable and the person sustaining damage”is achieved and that this is in line with “the modern approach to civil liability.”

• (neutral/modern PIL: pretended modern PIL, with an eye for victim)

• See basis rule Rome II, article 4(1): “the law of the country in which the damage occurs irrespective of the country in which the event giving rise to the damage occurred and irrespective of the country or countries in which the indirect consequences of that event occur.”(thus: applicability of the lex loci damni, law of the “erfolgsort”)

• Pretended modern PIL, having with an eye for the victim but: risks – at least in certain cases (not necessarily!!) – turn out in a negative way for the victim in the above-situated central hypothesis?

• If so: in certain cases PIL –rules “give with one hand what they take away with the other hand”? (give access to (European) judge; deny access to (European) norm and throw back victims on legal norms that are not favourable for them?)

Thus: theme Corporate Social ResponsibilityWith focus on International environment pollution

What if companies try to « export » risks e.g. environment pollution?

Main rule article 4, but special rule in article 7 – environmental

damage: unilateral choice of law for victim « The law applicable to a non-contractual obligation arising out of environmental damage or damage sustained by persons or property as a result of such damage shall be the law determined persuant to Article 4 (1), unless the person seeking compensation for damage chooses to base his or her claim on the claim on the law of the country in which the event giving rise to the damage occurred »

Muir-Watt (Sciences Po): « Article 7 = tool of governance » (against risks of unregulated market, competition between systems – risks of strategic practices of companies) Muir watt : « in need of uniform choice of laws as tools of governance designed to fulfill the requirements of economic due process on a Community level. (…) thus, for instance, the cost of a law providing for lax standards of environmental protection should not be exported towards a neighbouring state with different priorities: in cases of cross-border pollution, environmental damage caused in the latter state by firms legally using low standards of protection on the other side of the frontier must be internalized by application of the more protective rules. » Muir-Watt refers to article 7 Rome II as a recent choice of law provision who has integrated this

What if damage occurred outside Europe?

But what if damage outside Europe? Jessurun D’Oliveira in 1997 : « There are polluters who intentionally set up the locus damni abroad. In this respect one can think of the many nuclear power stations situated along borders, but also of situations like Bhopal (…) whereby dangerous production processes are located in cheap countries, countries where not only labour, but also lives are cheap. “

Anno 2014: which law applies in those cases?? (when a European judge is addressed)If application, nowadays, of unified rules of applicable law: article 4 Rome II/Article 7 Rome II: « it pays » to handle this way?? Practice not punished by PIL? European rules no tool of governance, regulating risks of competition of systems (but rather the opposite?) ?

Depends i.a. on the interpretation/margin given to article 7 Rome II Regulation: e.g., if law of country where damage occurred is not giving many possibilities to victim: possible to give interpretation to article 7 Rome II allowing victim to choose for rules of a European country ? (issues around « duty of care », interpretation of « country in which the event giving rise to the damage occurred »: also where policy decisions were or should have been taken, headquarter?Cfr. Possible use of mechanisms in Rome II Regulation such as « public order », « rules of immediate application »?

Realize: European Rome II Regulation functions in context of Globalisation. Implications for global economy.

In that context of globalisation:

European PIL as another tool of power in hands of powerful party?

« Care should be taken that PIL is not reduced to an instrument of power in the hands of the stronger party, who can use it in order to benefit even more from a situation of « competing norms ». In the dynamics of a situation of competing norms, PIL should not lend itself to be used to the detriment of the structurally weaker party and close all doors for victims ». Risk: PIL increases even further parties’ inequality?

Other/More avenues for victims?

• Thus: article 7 issue how broad – “Handlungsort”• Other possible avenues for victims:

• Article 4(3) “escape-clause”• Article 16 “overriding mandatory rules”(of the

forum)• Article 17 “rules of safety and conduct”(of the

place of the event giving rise to the liability) • Article 26 “exception of public order” – surrogate

law• Human rights e.g. through article 16 and/or 26?

Observation

• Observation: – unified rules in Rome II but - could possible have different results depending on

which European judge deals with case if several judges competent take this into account?

Forumshopping in function of law shopping?

Potential Rome II??

• Potential Rome II!? Potential e.g. article 7? Already good possibilities for victims, “fair balance”/should be amended/interpreted in certain way?

• Level “Access to justice” European PIL-source??

Europe (EU and ECJ) as a central regulator, protecting weak party and human rights: risks and possibilities.

double face?• From a broader perspective, question arises whether the competition between legal systems may ultimately be at the

expense of the level of protection of human rights and the protection of weak parties.

• In this competition: Europe a – suitable - central regulator?

• A European regulator with two faces??

- « Europe » (interference of European institutions in PIL) sometimes at the root of race to the bottom mechanisms and situations sometimes seen as excesses that unregulated competition may give rise to

(with effect of reduction of the level of protection of weaker parties?)See e.g. article 4 Rome II Regulation?see e.g. article 7 Rome II Regulation as far as given a particular interpretation?

-« Europe » also sometimes saveguearding rights of weaker parties, limiting risks of competition?-See e.g. article 7 Rome II Regualation as far as given a particular interpretation?

question arises:Regulatory function PIL!!?? Currently debates on (possible) regulatory function of PIL

PIL and Social Justice• In any case:need to be conscious of the role of PIL (As Robert Wai recently said in the area of international economic law: the question is not IF PIL has a role to play, but WHICH role. • Need to be conscious of how ultimately application of PIL-rules works out for « weak

parties »/protection of human rights/protection of environment, within and outside Europe.

• Scholars: concept of « environmental social justice » and PIL. Also broader « Social justice » and PIL, role for PIL in guaranteeing/achieving social justice?

• Legal certainty for victims? Predictibility for enterprises – this way « regulatory » effect on enterprises?

• Seen this way: this topic interesting « case-study », examining this area one could see a glimpse and have a taste of what PIL is/could be

• Other possible case-studies e.g. labour law, family law/migration law• In any case: appeal to be alert for role European/national PIL in

guaranteeing/achieving social justice. Be aware of the concrete effects of abstract discipline of PIL!

“Oil” PIL-hinges?

• If look this way (access to justice, social justice, legal certainty, PIL as a hinge): need to “oil” hinge at certain points/can position further discussions today (also) in this perspective?