NN v Barrick Tz Limited (Acacia) in the English courts. Another CSR /jurisdictional marker with likely role for Articles 33-34 Brussels Ia.

I have for the moment little to go on in a new claim, launched in the English courts, in the Corporate Social Responsibility /mass torts category. The claim was apparently filed against Barrick Tz Limited, formerly Acacia Mining, domiciled in the UK, alleging human rights abuses by security forces at the company’s North Mara mine.

Of jurisdictional note undoubtedly will be the application of Articles 33-34 Brussels Ia: forum non conveniens – light, and a likely application for summary judgment by defendant. There is as far as I know no mother holding issue involved, unlike in Vedanta or Bento Rodriguez /Samarco.

Geert.

(Handbook of) European Private International Law, 2nd ed. 2016, Chapter 8, Heading 8.3.

 

, , , , , , , , , , , , , , , , ,

Leave a comment

Hutchinson v MAPFRE and Ice Mountain (Obeach) Ibiza. Spotlight on the consumer and insurance title of Brussels Ia.

Jonathan Hutchinson v MAPFRE and Ice Mountain (OBeach) Ibiza [2020] EWHC 178 (QB) like all cases involving serious accidents, cannot be written about without the greatest sympathy for claimants having suffered serious physical damage. The case concerns the horror scenario of either a fall or a dive in a pool leading to head and spinal injury. Mr Hutchinson (represented by Sarah Crowter QC) is a former Birmingham City football player who visited an Ibiza club owned by a fellow Brit – those interested in the background see here.

Defendants are the club (ICE Mountain, Spain registered) and their insurers, MAPFRE (ditto). Clearly to sue in England the case needs to involve either a protected category (consumers; insureds) or a special jurisdictional rule (contract; tort).

Andrews J is right in calling jurisdiction on the consumer title against ICE Mountain straightforward. The Pammer /Alpenhof criteria are fulfilled; that claimant’s purchase of a ticket was not the result of the directed activities is irrelevant per CJEU Emrek; (at 21 she dismisses an argument to try and distinguish Emrek on the facts, which argued that claimant had entered the pool via the VIP area to which his ‘standard’ ticket did not actually give access).

The further discussion involves the insurance title of Brussels Ia, which reads in relevant part (Article 13):

(1).   In respect of liability insurance, the insurer may also, if the law of the court permits it, be joined in proceedings which the injured party has brought against the insured. (2).   Articles 10, 11 and 12 shall apply to actions brought by the injured party directly against the insurer, where such direct actions are permitted. (3).   If the law governing such direct actions provides that the policyholder or the insured may be joined as a party to the action, the same court shall have jurisdiction over them.

The claims against Ice Mountain in tort or for breach of statutory duty are halted by Andrews J. The question here is whether the ‘parasitic’ claim under A13(3) requires the issue to ‘relate to insurance’ (recently also discussed obiter in Griffin v Varouxakis), an issue already discussed in Keefe, Hoteles Pinero Canarias SL v Keefe [2015] EWCA Civ 598 (referred to in Bonnie Lackey), sent to the CJEU but settled before either Opinion of judgment. The same issue is now before the CJEU as Cole and Others v IVI Madrid SL and Zurich Insurance Plc, pending in anonymised fashion before the CJEU it would seem as C-814/19, AC et al v ABC Sl (a wrongful birth case).

At any rate, the non-contractual claims against Ice Mountain were stayed until the CJEU has answered the questions referred to it by Judge Rawlings in Cole.

A late [but that in itself does not matter: lis alibi pendens needs to be assessed ex officio (at 36)] challenge on the basis of A29-30 lis alibi pendens rules was raised and dismissed. The other proceedings are criminal proceedings in Ibiza. The argument goes (at 37) that there are ongoing criminal proceedings in Spain arising out of the accident which led to Mr Hutchinson’s injuries, and because Mr Hutchinson has failed to expressly reserve his right to bring separate civil proceedings, the Public Prosecutor is obliged to bring civil proceedings on his behalf within the ambit of those criminal proceedings. For that reason, Ice Mountain contend that the Spanish court is seised of any civil claim arising from the same facts as are under investigation in the Spanish criminal proceedings, and has been since 2016, long before these proceedings were commenced.

This line of argument fails to convince Andrews J: ‘Through no fault of his own, Mr Hutchinson has never been in a position knowingly to take any formal steps to reserve his position in Spain to commence separate civil proceedings against anyone he alleges to be legally liable for his injuries. Yet, if Ice Mountain is right, he will have been deprived of any choice in the matter of where to bring his civil claim merely because, without his knowledge or consent, a doctor in the hospital filed a report which triggered a criminal investigation into the accident, of which he was never told.’ Quite apart from this unacceptable suggestion, the criminal proceedings in Ibiza have been closed, and (at 59) ‘there is no ongoing criminal action leading to trial, to which any civil action would attach.’

For the claims against Mapfre, Mrs Justice Andrews held that the court has jurisdiction on two alternative basis:

Firstly, the provision in the contract of insurance upon which Mapfre seeks to rely as demonstrating that there is no good arguable case against it on the merits cannot be relied on, as that would substantially undermine the protection to the weaker party specifically provided for in the insurance provisions of Recast Brussels 1.

In essence, Mapfre accepts that under Spanish law, there would be a direct right of action against it as Ice Mountain’s liability insurer if it were liable to indemnify Ice Mountain under the policy, but it contends that Mr Hutchinson does not have a good arguable case that Mapfre’s policy of insurance covers Ice Mountain’s liability to him under a judgment given by an English court. The policy would, however, cover Ice Mountain’s liability to him for the same accident, based on the identical cause (or causes) of action, under a judgment given by a Spanish court. (ICE Mountain agree, therefore also acknowledging it is uninsured in respect of any claims which the English consumers who are its targeted customers might bring in the courts of their own domicile pursuant to A17-18 BIa). If this were right, this would mean a massive disincentive for the consumer to sue in his jurisdiction: at 66 (a devilish suggestion): If he wins and the uninsured defendant is not good for the money, he would be left without a remedy, whereas if he sued in Spain, the same defendant would be insured in respect of the same liability, and he would recover from the insurer up to the policy limits.

At 67: if a party who owes contractual duties to consumers ‘does insure, and a direct of action exists against the insurer under the law which governs the insurance contract, then ‘Recast Brussels I does not contemplate that he should be permitted to contract with the insurer on a basis that acts as a disincentive to consumers to exercise their rights to sue him (and his insurer) in the courts of their own domicile or which renders any rights of suit against the insurer in that jurisdiction completely worthless by using the exercise of those rights as grounds for avoiding the insurer’s obligation to indemnify him.

The Spanish law experts called upon to interpret the provisions of the territorial scope title in the insurance policy, differed as to exact meaning. However the issue was settled on the basis of EU law, with most interesting arguments (and reference ia to Assens Havn): summarising the discussion: a substantial policy clause limiting liability to awards issued by Spanish judgments, in practice would have the same third party effect as a choice of court clause which B1A does not allow (see A15: The provisions of this Section may be departed from only by an agreement… (3) Which is concluded between a policyholder and an insurer, both of whom are at the time of conclusion of the contract domiciled or habitually resident in the same member state, and which has the effect of conferring jurisdiction on the courts of that state even if the harmful event were to occur abroad, provided that such agreement is not contrary to the law of that Member State….”

At 84:

‘If a clause which has that effect can be relied on against a person such as Mr Hutchinson it would drive a coach and horses through the special rules on insurance laid down under Section 3 of Chapter II. It would provide every liability insurer (not just Spanish insurers) with the simplest means of depriving the injured party of the choice of additional jurisdictions conferred upon him by Articles 11 to 13 of Recast Brussels 1. It would be the easiest thing in the world for an insurer, as the economically strongest party, to include a standard term in the policy that he is only liable for claims that have been brought against the policyholder in the courts of the policyholder’s and/or the insurer’s own domicile.’

This part of the judgment is most interesting and shows the impact jurisdictional rules and their effet utile may have on substantive law (at the least, third party effect of same).

Alternatively, even if the analysis above is wrong, ‘on the basis of the expert evidence on Spanish law that is currently before the Court, at this stage of the proceedings the Claimant has established at the very least a plausible evidential basis for finding that the clause in question (the one which effectively limits pay-outs to judgments issued in Spain) is not binding upon him as a third party to the contract, and therefore is ineffective to prevent MAPFRE from being directly liable if his claim is otherwise well-founded on the merits. He has therefore established a good arguable case that the jurisdictional gateway under Article 13(2) of Recast Brussels 1 applies.’

Most relevant and interesting.

Geert.

(Handbook of) EU Private international law, 2nd ed. 2016, Chapter 2 Heading 2.2.11.2

 

, , , , , , , , , , , , , , , ,

Leave a comment

A quick (jurisdictional) note on the Cobalt supply chain litigation.

News broke a few weeks back on the class action suit introduced in the USDC for the District of Columbia, against Apple, Dell, Microsoft and Tesla. Swiss-based Glencore (of Mark Rich fame) and Belgium’s Umicore are mentioned in the suit but not added to the defendants. Historical references are inevitably made to the plundering of Congo first by King Leopold personally and in a later stage by the Kingdom of Belgium.

The suit is a strategic one, attempting to highlight the human rights (including child labour) issues involved in the mining of cobalt, used as a raw material in particular for modern batteries, and to propel the corporate social responsibility (CSR) debate on due diligence and supply-chain liability. It is also however a suit seeking damages for the victims of child labour in very dangerous circumstances.

Of note for the blog is the jurisdictional angle: discussed at 18 ff and featuring arguments against the use of forum non conveniens. Claimants put forward they have no practical ability to litigate in DRC: damages under DRC law (therefore assumed to be the lex causae which a Congolese judge would apply were the case litigated in DRC) sought from end-users of cobalt; DRC courts are corrupt; anyone standing in the way of the mining industry is threatened; the 2000 Victims of Trafficking and Violence Protection Act TVPRA as amended in 2013 allows for extraterritorial jurisdiction; finally and of relevance to a classic locus delicti commissi argument: ‘the policymaking that facilitated the harms Plaintiffs suffered was the product of decisions made in the United States by Defendants’.

Personal jurisdiction is suggested to exist for (at 22) are all U.S. resident companies and they do substantial and continuous business within the District of Columbia – minimum contacts are established, and defendants should reasonably anticipate being hailed into court there.

No doubt there will be intense discussion on the jurisdictional basis, prior to debate on the merits of liability of end-users.

Geert.

, , , , , , , , , , , , , , , , ,

Leave a comment

High Court confirms refusal to sue Google in the UK for its (alleged) assistance to hotlinkers: Wheat v Alphabet /Google Inc and Monaco Telecom.

I have earlier reviewed the decision of Chief Master Marsh in [2018] EWHC 550 (Ch) Wheat v Alphabet /Google Inc and Monaco Telecom. In Wheat v Google LLC [2020] EWHC 27 (Ch), this decision was confirmed upon appeal (on the copyright issues see here).

Google is involved in the litigation because claimant alleges that Google’s search engine algorithm has done little to address hotlinking practice, which, it is said, facilitates copyright infringement.

Both cases are a good example of the standards for serving out of jurisdiction, essentially, to what degree courts of the UK should accept jurisdiction against non-UK defendants (here: with claimants resident in the UK). The Brussels I Recast Regulation is not engaged in either cases for neither Monaco nor Alphabet are EU based. Mr Wheat is resident in England and his business is based in England. Any damage as a result of hotlinkers’ infringement of his copyright is very likely to be and to have been suffered in England; there is in fact evidence that damage has been suffered. It is also clear to Keyser J that England is clearly the appropriate forum and a forum non conveniens argument therefore going nowhere. However the case to answer by Google, like Marsh CM concluded, is simply too weak nay non-existant: following extensive review of secondary EU law and CJEU copyright law, Keyser J holds that the acts complained of against Google cannot be unlicensed communications, because they are not communications to a new public (all potential users of the unrestricted Website constituting one public, so far as concerns a case involving communication via hotlinking) and are not communications by a new technical means (the internet constituting a single technical means).

No case to answer by Google. No service out of jurisdiction.

Geert.

 

, , , , , , , , , , , , , , , , ,

Leave a comment

GDE v Anglia Autoflow. Governing law for agency agreements under the Rome Convention.

In GDE LLC & Anor v Anglia Autoflow Ltd [2020] EWHC 105 (Comm) (31) the Rome I Regulation does not apply ratione temporis; the Agency Agreement was concluded on about 9 April 2009 which is a few months before the kick-off date of the Regulation (note there is no default rule for agency in Article 4 Rome I in the event of lack of lex voluntatis). Dias DJ therefore turns to the 1980 Rome Convention.

Parties are in dispute as to the governing law of the Agency Agreement by which the claims should be determined. AAL alleges that the governing law is that of Ontario while the Claimants allege that the Agency Agreement is governed by English law. The point is of critical importance because the Claimants concede that, if AAL is correct, their claim is time-barred under Ontario law: although this, as readers know, assumes statutes of limitation are subject to the governing law – which is far from certain: see Jabir v KIK and Spring v MOD.

Parties’ arguments are at 10 and 11 and of course they reverse engineer. In essence (at 20) claimants say that there was an implied choice of English law. Alternatively, if that is not correct, the presumption in Article 4(2) of the Rome Convention, which would otherwise point to Georgia law, falls to be disapplied in favour of English law. The Defendant says that there was no implied choice and that application of Article 4(2) leads to Ontario law. Alternatively, if (which it denies) the presumption in Article 4(2) leads to any other governing law, the presumption is to be disapplied in favour of Ontario.

At 21 ff follows a rather creative (somewhat linked to the discussion of ex officio Rome Convention application in The Alexandros), certainly unexpected (yet clearly counsel will do what counsel must do) argument that essentially puts forward that under the common law approach of foreign law = fact hence must be proven, any discussion of a law as governing law, not suggested by the parties (here: the laws of (the US State of) Georgia) that is not English law (which clearly the English curia does ‘novit’), cannot go ahead. At 22 Dias DJ already signals that ‘once the wheels of the Convention had been put in motion, they could not be stopped short of their ultimate destination. The idea that the process dictated by the Convention should be hijacked halfway, as it were, on the basis of a pleading point was, to my mind, deeply unattractive.’

At 31 she sinks the argument. I think she is right.

Having at length considered the facts relevant to the contract formation, discussion then turns again to the Rome Convention with at 105 ff a debate on the role to be played by factors intervening after contract formation with a view to establishing [implicit, but certain: see at 117 with reference to the various language versions of the Convention and the Regulation essentially confirming the French version] choice of law or closest connection. (Dias J refers to the Court of Appeal in Lawlor v Sandvik Mining and Construction Mobile Crushers and Screens Ltd, [2013] EWCA Civ 365[2013] 2 Lloyd’s Rep 98 where, at paragraphs 21-27, it pointed out that the common law approach frequently blurred the distinction between the search for the parties’ inferred intention and the search for the system of law with which the contract had its closest and most real connection).

At 120: the hurdle is high: choice of law implicitly made must have nevertheless been made: ‘The court is not looking for the choice that the parties probably would have made if they had turned their minds to the question.’ at 122: In the present case the evidence established that there was no reference by the parties to the question of governing law at all. Choice of court for England (discussed ia with reference to Rome I and to Brussels Ia Article 25) does not change that. At 160 ff therefore follows the discussion of Article 4 of the Rome Convention, leading to a finding of the laws of Ontario as the lex contractus under Article 4(1). Article 4(5) does not displace it.

Geert.

(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 3, Heading 3.2.4, Heading 3.2.6.

, , , , , , , , , , , ,

Leave a comment

The French Constitutional Court on exporting environmental pollution and health hazards.

I seem to be having my environment cap firmly on this week so I am happy to thank Le Monde for flagging the judgment of the French Constitutional Court 2019-823 of 31 January in which it sanctioned (against the wishes of applicants, the Union des industries de la protection des plantes, essentially Bayer, Syngenta, BASF)  the Government’s ban on the manufacturing of and exportation of pesticides banned for use in France but hitherto available for export, mostly to Africa.

The case I would suggest is one that is also very suited to a business ethics class. Interestingly the Act also mentions that it applies to the degree it is not incompatible with WTO rules – the WTO is not addressed in the judgment.

Applicants’ case is grounded on the freedom of ‘enterprise’ or ‘commerce’, as expressed in the 1789 Déclaration des droits de l’homme et du citoyen – but also the Decret d’Allarde 1791. To the mix of objectives to be balanced, the Court adds the protection of public health (Constitutional recital, 1946) and the Environment Charter 2004, from which the court deduces that environmental protection, as common heritage of mankind, is a Constitutionally ringfenced objective.

At 6 the Court without much ado posits that the French Government in pursuing environmental policy, justifiably may take into account the extraterritorial environmental consequences of activities on French soil.

Having referred to the EU ban on the use of the substances at issue, based on scientific considerations discussed at length in the run-up to the EU law at issue, the Court at 9-10 refers to the principle that it should not overzealous in second-guessing the exercise by Parliament of its balancing exercise. At 11, it notes that the 3-year transitionary period gives corporations ample transitionary time in line with their freedom of commerce.

To the Court, it’s all very much self-evident. For environmental policy and extraterritoriality, its findings are quite relevant.

Geert.

 

 

, , , , , , , , , , , , , , ,

Leave a comment

A language Fest: Sharpston AG on the Basel Convention and mixtures of wastes in Interseroh.

In C-654/18 Interseroh Sharpston AG opined on 30 January, in answer to a German court wishing to ascertain whether a waste stream composed principally of paper products should be categorised as so-called ‘green’ waste and therefore subject to the flexible control procedure provided in the EU’s Waste Shipment Regulation 1013/2016. The referring court also asks whether such waste can still be categorised as ‘green’ if it contains up to 10% impurities.

The Regulation combines rules of purely EU origin, with a sometimes complex combination of OECD and 1989 Basel Convention rules. It generally employs a listing system with corresponding light signals (green and amber, previously also red) with the green list being the most desirable to exporters: these only require compliance with the same rules as ordinary commercial transactions.

Regardless of whether or not wastes are included on the list of wastes subject to the Green Control Procedure (Appendix 3 of the EU Regulation), they may not be subject to the Green control procedure if they are contaminated by other materials to an extent which (a) increases the risks associated with the wastes sufficiently to render them appropriate for submission to the amber control procedure, when taking into account the criteria in Appendix 6 to this Decision, or (b) prevents the recovery of the wastes in an environmentally sound manner’.

In the dispute at issue Interseroh collects used sales packaging (lightweight packaging) from private final consumers throughout Germany which it then consigns to recovery. It ships the prepared waste paper across the border for recycling in a paper factory in Hoogezand (Netherlands). New paper and new paperboard is produced from the waste paper. The Netherlands purchaser, ESKA stipulates that the waste paper must meet the following specifications. It should be composed of at least 90% used, residue-drained, system-compatible paper, paperboard or cardboard (PPC) articles and PPC-based combinations, with the exception of liquid packaging board including packaging parts such as labels etc. Also, the waste stream must contain no more than 10% impurities (‘the mixture of wastes at issue’).

The Dutch and German import cq export authorities differ as to the inclusion or not of the transported wastes at issue, with the Dutch taking a more relaxed approach on the basis of the Dutch version of the relevant Basel entry B3020.

  • The Dutch version reads „De volgende materialen, mits deze niet vermengd zijn met gevaarlijke afvalstoffen:
    Oud papier en karton:
    – ongebleekt papier en karton of gegolfd papier en golfkarton; – overig papier en karton, hoofdzakelijk gemaakt van gebleekt chemisch pulp, dat niet in bulk is gekleurd; – papier en karton hoofdzakelijk gemaakt van mechanisch pulp (bv. kranten, tijdschriften en soortgelijk drukwerk); – overige, met inbegrip van: 1. gelamineerd karton, 2. ongesorteerd afval
  • The German version: “Folgende Stoffe, sofern sie nicht mit gefährlichen Abfällen vermischt sind:
    Abfälle und Ausschuss von Papier und Pappe
    – ungebleichtes Papier und Wellpapier und ungebleichte Pappe und Wellpappe; – hauptsächlich aus gebleichter, nicht in der Masse gefärbter Holzcellulose bestehendes anderes Papier und daraus bestehende andere Pappe; – hauptsächlich aus mechanischen Halbstoffen bestehendes Papier und daraus bestehende Pappe (beispielsweise Zeitungen, Zeitschriften und ähnliche Drucksachen); – andere, einschließlich, aber nicht begrenzt auf: 1. geklebte/laminierte Pappe (Karton) , 2. nicht sortierter Ausschuss.
  • The English version: The following materials, provided they are not mixed with hazardous wastes:
    Waste and scrap of paper or paperboard of:
    – unbleached paper or paperboard or of corrugated paper or paperboard; – other paper or paperboard, made mainly of bleached chemical pulp, not coloured in the mass; – paper or paperboard made mainly of mechanical pulp (for example, newspapers, journals and similar printed matter); – other, including but not limited to: (1) laminated paperboard, (2) unsorted scrap.

According to the wording of the German-language version, point 2 of the fourth indent covers ‘nicht sortierten Ausschuss’ (‘unsorted scrap’) and not ‘nicht sortierte Abfälle’
(‘unsorted waste’), as the Dutch Supreme Court held on the basis of the Dutch language version (‘ongesorteerd afval’). The term ‘scrap’ is not synonymous with the terms ‘waste’ or ‘mixture’. In addition, a distinction is drawn in the French language version between ‘mélange de déchets’ and ‘rebuts non triés’, just as in the English-language version between ‘mixture of wastes’ and ‘unsorted scrap’. The terms ‘scrap’ and ‘waste’ are therefore not synonymous. Since, in the Dutch language version of the heading of Basel Code B3020, the term ‘waste’ is not used, but it instead reads ‘papier, karton en papierproducten’, the term ‘afval’ in point 2 of the fourth indent in the Dutch-language version does not cover the entire entry, but only what does not come under the first three indents.

Specifically, on 20 May 2015, the Raad van State (Council of State, Netherlands) ruled in proceedings involving ESKA that a waste paper mixture, regardless of the presence of impurities, comes under Basel Code B3020. Accordingly, any such mixture of wastes constituted ‘Green’ listed waste and came within the list of wastes subject to the Green control procedure under Article 18 of Regulation No 1013/2006. It did so on the basis of the Dutch language version of Basel Code B3020. ESKA had previously been employing the stricter prior notification procedure under Article 4 of the Regulation.

Interseroh then brought an action before the referring German court seeking a declaration that it is entitled to ship the mixture of wastes at issue to other EU Member States in accordance with the Green control procedure.

Sharpston AG at 27 starts by pointing out that the shipments at issue are kosher commercial and regulatory transactions: at least 90% of the mixture is made up of what can be described generically as paper, paperboard and paper product wastes. The waste also includes a maximum of 10% impurities. This, in other words, is not a cowboyesque trafficking practice. She then explores the legislative history of the amended Annexes, paying less attention to the linguistic analysis perhaps than one might expect – object and purpose is, after all, a guiding principle in the interpretation of texts with seemingly diverging language versions. She concludes from that assessment (please refer to her Opinion itself; there is little point in me paraphrasing it here) that the lighter, green list procedure can only apply if the notifier shows with scientific evidence that the level of impurities does not prevent the recovery of the wastes in question in an environmentally sound manner. She also acknowledges at 72 (as the EC already did in its 2009 FAQs) that clarity on the issue is wanting: ‘establishing what is a tolerable level of contamination is a matter that is due (perhaps, overdue) for examination’. However given the lack of formal regulatory guidance on the issue, the Article 28 procedure of Regulation applies: where the competent authorities of the Member State of dispatch and the Member State of destination cannot agree on the classification of a particular consignment of wastes (and hence on whether the more flexible Green control procedure in Article 18 may be used), the Annex IV amber list procedure must be applied.

Geert.

(Handbook of) EU Waste Law, 2nd ed 2015, Chapter 4.

(Opinion earlier signalled here)

, , , , , , , , , , , , , , , ,

Leave a comment

%d bloggers like this: