Some movement on UK accession to Lugano? UN Committee queries European Union about LugaNon.

I have reported before on the European Commission’s reasoning to refuse to support the UK’s accession to the Lugano Convention. Leigh Day and Daniel Leader in particular report here on a recent initiative of note: a letter by Dr Yeophantong, Chair-Rapporteur of the Working Group on the issue of human rights and transnational corporations and other business enterprises, has written to the European Commission asking it to explain its refusal to endorse the UK request to join.

Dr Yeophantong suggests the EC recalcitrance “may limit the legal accountability of UK domiciled businesses’ behaviour outside the UK, for which she refers in particular to the expected trend post Brexit, for even UK incorporated business to try and deflect jurisdiction in the UK courts viz claims pursuing these corporations for their or others’ business and human rights record outside the UK. The vehicle for this to happen is of course forum non conveniens. As readers know (otherwise try ‘CSR’ or ‘forum non’ or ‘Article 34’ in the search box), the UK have for a long time applied forum non conveniens, a mechanism not known in the Brussels regime other than in the reduced form of Articles 33-34 Brussels Ia, and not known at all in the Lugano Convention.

As Leigh Day summarise, Dr Yeophantong posed six questions in her letter, including asking Ms Von der Leyen, Commission President:

• • To explain how its refusal to allow the UK to join the treaty conforms to the EU’s support for the UN Guiding Principles;
  • For clarification on the processes within the EU which have led to the UK being refused accession to the Lugano Convention;
  • What process will be used to consider the UK’s request to re-join Lugano, and whether the European Commission is the competent authority to oversee this process; and
  • For an explanation how the Hague Conventions can provide the same protection as the Lugano Convention from the behaviour of UK businesses operating in other countries.

At first sight it may seem odd to ask the EU to justify its actions vis-a-vis a mechanism (forum non) that is part of all of the UK’s common laws: rather, one might say, the obvious target is UK law itself. However politically speaking, it is most certainly correct that EU support for UK Lugano accession would with one swoop pull the carpet from underneath an important mechanism for UK corporations to try and avoid discipline for human rights abuses abroad. This is arguably in line with the EU’s committments under human rights law. Moreover, there is as I suggested here, inconsistency in the Commission’s approach to external judicial cooperation policies of relevance to Lugano.

To be continued.

Geert.

EU private international law, 3rd ed. 2021, Heading 1.7.