Archive for category Conflict of Laws /Private international law

Kalma v African Minerals. Court of Appeal confirms absence of vicarious liability, no omissions with the mother holding.

I reviewed [2018] EWHC 3506 (QB) Kalma v African Minerals et al in an earlier post. It essentially entails vicarious liability of UK-incorporated companies (jurisdiction firmly settled therefore) for human rights abuses committed by Sierra Leone police (SLP), who ensured security at the defendants’ mine. All claims were held to have failed and the Court of Appeal in [2020] EWCA Civ 144 has confirmed same on 17 February (a little before the important SCC ruling in Nevsun).

The High Court’s discussion of the factual involvement of the companies with SLP activities, required to establish vicarious liability, as I noted at the time has echoes of the discussion on the level of oversight required for mother companies to be held liable for subsidiaries’ actions (such as e.g, in Apartheid, Shell (in The Netherlands) or of course in Vedanta). (The case otherwise does not raise the kind of jurisdictional or applicable law issues readers often find on this blog).

Of most relevance for the corporate social responsibility (CSR) issues are the grounds of appeal concerning the alleged duty of care owed, discussed at 110 ff: appellants say that the judge wrongly approached this case as a case of “pure omissions” and that, instead, he should have considered the existence of the duty by reference to first principles and, in particular, the three elements identified in Caparo v Dickman, namely foreseeability, proximity and whether or not such a duty was fair, just and reasonable (Ground 3). The appellants also have an alternative case that, if this was a case of pure omissions, the judge should have found that it was one of the recognised exceptions to the rule, namely that it involved the creation of the danger by the respondents themselves (Ground 4). Core factual consideration in all this are the money, vehicles and accommodation provided to the SLP, which the judge had found was common in Sierra Leone.

Coulson LJ reiterated with the judge that the duty of care tenet was one of omission: failure to protect the claimants (the respondents, arguendo, having failed to protect the claimants from the harm caused by the SLP). Extensive analysis of Turner J’s judgment at the High Court found no reason to reach a different conclusion than his.

Geert.

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

 

, , , , , , , , , ,

Leave a comment

Canadian Supreme Court gives go ahead for consideration of the CSR issues in Nevsun Resources.

I have reported earlier on the issues which yesterday led to the decision of the Canadian Supreme Court 2020 SCC 5 Nevsun Resources Ltd. v. Araya, in which the Supreme Court was asked whether there should be a new tort of breach of international law, and whether the “act of state” doctrine prevents adjudication in the case at issue. The case does not have jurisdictional issues to consider so I shall leave the substantive public international law analysis (not my core area) to others: Dr Ekaterina Aristova’s Twitter feed referenced below should give readers plenty of pointers, as does (which came out just as I was finalising this post) Stephen Pitel’s analysis here.

The case does raise the kinds of questions upon which the US Supreme Court (Kiobel; Jesner) refused to be drawn, particularly issues of corporate culpability under public international law. Again, this is not my area of core expertise and my thoughts here are merely that.

Three Eritrean workers claim that they were indefinitely conscripted through Eritrea’s military service into a forced labour regime where they were required to work at a mine in Eritrea. They claim they were subjected to violent, cruel, inhuman and degrading treatment. The mine is owned by a Canadian company, Nevsun Resources Ltd. The Eritrean workers started proceedings in British Columbia against Nevsun and sought damages for breaches of customary international law prohibitions against forced labour, slavery, cruel, inhuman or degrading treatment, and crimes against humanity. They also sought damages for breaches of domestic torts including conversion, battery, unlawful confinement, conspiracy and negligence.

Nevsun brought a motion to strike the pleadings on the basis of the ‘act of state’ doctrine, which precludes domestic courts from assessing the sovereign acts of a foreign government. Nevsun also took the position that the claims based on customary international law should be struck because they have no reasonable prospect of success.

The act of state doctrine is “a rule of domestic law which holds the national court incompetent to adjudicate upon the lawfulness of the sovereign acts of a foreign state” (R. v. Bow Street Metropolitan Stipendiary Magistrate, Ex parte Pinochet Ugarte (No. 3), [2000] 1 A.C. 147 (H.L.), at p. 269) (Lord Millett). The doctrine exists in Australian and English common law (with plenty of discussion) but is not part of Canadian common law. At 30 Abella J for the majority explains the connections and differences with the doctrine of state immunity. [The doctrine was also at stake in [2018] EWHC 822 (Comm) Reliance v India on which I reported earlier].

The motion was dismissed by the Court of Appeal and the Supreme Court in majority has now agreed, arguing  (ia at 44-45)

The act of state doctrine and its underlying principles as developed in Canadian jurisprudence are not a bar to the Eritrean workers’ claims. The act of state doctrine has played no role in Canadian law and is not part of Canadian common law. Whereas English jurisprudence has reaffirmed and reconstructed the act of state doctrine, Canadian law has developed its own approach to addressing the twin principles underlying the doctrine: conflict of laws and judicial restraint. Both principles have developed separately in Canadian jurisprudence rather than as elements of an all‑encompassing act of state doctrine. As such, in Canada, the principles underlying the act of state doctrine have been completely subsumed within this jurisprudence. Canadian courts determine questions dealing with the enforcement of foreign laws according to ordinary private international law principles which generally call for deference, but allow for judicial discretion to decline to enforce foreign laws where such laws are contrary to public policy, including respect for public international law.

Nor has Nevsun satisfied the test for striking the pleadings dealing with customary international law. Namely it has not established that it is “plain and obvious” that the customary international law claims have no reasonable likelihood of success.

Of note is at 50 the insistence with reference to authority that ‘deference accorded by comity to foreign legal systems “ends where clear violations of international law and fundamental human rights begin” ‘, and the majority’s opinion’s references to the stale nature of the established concept that public international law exists for and between States only.

Clearly the case is not home and dry for the lower courts will now have to address the substantive issues and may still hold for Nevsun. Moreover claimant’s case is based on parts of international law traditionally considered ius cogens – of less use in other corporate social responsibility cases involving environmental issues or more ‘modern’ social rights other than the hard core ius cogens category. Hence in my initial view the precedent value of the case may not be as wide as one might hope. However the clear rejection of the act of state attempt is significant.

Of interest finally is also the judgment at 75 and at 109 citing Philippe Sands’ (KU Leuven doctor honoris causa) formidable East West Street in support.

Geert.

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

 

 

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

Leave a comment

Dutch Court denies jurisdiction in Chief of the Israeli General Staff case.

The judgment (in first instance; expect appeal) dismissing jurisdiction in Ismail Ziada v Benjamin Gantz is out in Dutch here and in English here. Gilles Cuniberti has reviewed the immunity issues here. I shall focus on the consideration of forum necessitatis, and can so do very briefly for the court does, too.

In essence the judgment on this point means that civil procedure rules on forum necessitatis do not set aside sovereign immunity based on public international law, and that the ECtHR judgment in Naït-Liman does not alter that finding. In that case, the ECtHR nudged States to consider a forum necessitatis rule:

‘“Nonetheless, given the dynamic nature of this area, the Court does not rule out the possibility of developments in the future. Accordingly, and although it concludes that there has been no violation of Article 6 § 1 in the present case, the Court invites the States Parties to the Convention to take account in their legal orders of any developments facilitating effective implementation of the right to compensation for acts of torture, while assessing carefully any claim of this nature so as to identify, where appropriate, the elements which would oblige their courts to assume jurisdiction to examine it.

In Ismail Ziada v Benjamin Gantz the Court simply remarked that ECtHR authority on the issue all concerns immunity of international organisations not, as here, State sovereign immunity, in which consequently (in the court’s view) forum necessitatis does not have a role to play.

Geert.

 

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

Leave a comment

Declaration as to marital status: The High Court in MM v NA.

[2020] EWHC 93 (Fam) MM v NA is a great primer for family law conflict of laws.
Roberts J discussed formal validity (subject under English PIL to lex loci celebrationis, as is the case in many jurisdictions); ‘material” aka ‘essential’ validity aka capacity (in the common law subject to lex domiciliae: the domiciliary laws of the individual parties at the time of the marriage. Note that in the civil law this is often subject instead to lex patriae); finally: recognition, which here was complicated for Somaliland is not a State recognised by the UK.
Recognition was granted.
Geert.

, , , , , , , , , ,

Leave a comment

Spin Master Ltd. CJEU supports speed and efficiency over specialisation in provisional measures re the Community design.

Thank you Huib Berendschot for alerting me to a CJEU judgment which had escaped me. In C-678/18 Procureur Generaal bij de Hoge Raad der Nederlanden (Re: Spin Master Ltd) at issue is Regulation 6/2002 on Community designs.

The Regulation provides among others (Article 81) that Community design courts (as appointed in the individual jurisdictions) have exclusive jurisdiction for infringement actions. At issue was whether Member States may extend the exclusivity to provisional measures (Article 90). The Netherlands had done so, however as Huib explains more extensively, the CJEU has now given speed at the level of provisional measures, priority over specialisation: at 41: ‘ whilst the pursuit of that objective of uniform interpretation is entirely justified in the case of court proceedings the substance of which concerns infringement or invalidity actions, the EU legislature also pointed out, in recital 29 of Regulation No 6/2002, that the exercise of the rights conferred by a design must be enforced in an efficient manner throughout the territory of the European Union. The EU legislature was therefore able to ensure that, in the case of requests for provisional measures, including protective measures, concerning infringement or invalidity, the requirements of proximity and efficiency should prevail over the objective of specialisation.’

A most interesting judgment.

Geert.

 

, , , , , , , , , , ,

Leave a comment

Oakfield Foods: Writ of control granted in enforcement of EU order of payment; otherwise enforcement stayed pending challenge to jurisdiction in Poland.

In Oakfield Foods v Zaklad Przemyslu Miesnego Biernacki SP Z O O [2020] EWHC 250 (QB), Kimbell DJ granted a writ of control for £149,100.43 (monies to be paid into court) on the basis of the European orders for payment and their enforcement (EOPs) Regulation 1896/2006. The order for payment was issued in June 2018 by the Regional Court in Poznan.

In the simmering dispute on jurisdiction, it is Oakfield’s position that the court in Poland did not have jurisdiction because, under the terms of the sales agreement between it and Biernacki, there was choice of court for the courts of England and Wales. The position Biernacki in their application for the EPO is that the meat that was sold from Biernacki to Oakfield, was delivered in each case on Incoterms CIF/CIP under cover of CMR notes, and delivery took place in Poland.

Article 20 EOP provides for a system of review of the order. Oakfield argue that the time-limit included in it has not even begun running for service was not properly done. Oakfield have also launched proceedings in Poland challenging the EOP. Those proceedings were issued on 1 July 2019.

Kimbell DJ after discussing the service issues (incl the relation between the EOP and the Service Regulation) granted a writ of control (shielding therefore Biernacki from the risk of non-payment), stayed further enforcement until the litigation in Poland will be resolved, and also, at 98, ordered that Oakfield notify Biernacki’s English solicitors every four to six weeks of progress in the application challenging the EOP so as to avoid the claim being warehoused.

The substantial debate on jurisdiction in Poland clearly will involve the usual discussions on GTCs as well as Incoterms and choice of court.

Geert.

 

 

, , , , , , , , , , ,

Leave a comment

Gray v Hurley. Court of Appeal refers to Luxembourg on anti-suit to support EU jurisdiction against ex-EU action.

Update a few hours after posting. For the New Zealand perspective see Jan Jakob Bornheim’s thread here.

I reviewed the High Court’s decision (refusal of anti-suit) in Gray v Hurley here. The Court of Appeal [2019] EWCA Civ 2222 has now referred to Luxembourg.

As I noted at the time, the High Court discussed the matrimonial exception of Brussels Ia, as well as the exclusive jurisdictional rule of Article 24(1), and (briefly) Article 25’s choice of court. The appeal however only concerns the application of Article 4’s domicile rule. Was Mr Hurley domiciled in England on 26 March 2019, when the court was seized?  Article 62(1) Brussels Ia refers to the internal law. Lavender J decided that Mr Hurley was not domiciled in England, however that Lindner should be read as extending to the defendant’s last known domicile in a case where the Court: (1) is unable to identify the defendant’s place of domicile; and (2) has no firm evidence to support the conclusion that the defendant is in fact domiciled outside the European Union. I suggested at the time that this is a very relevant and interesting reading of Lindner, extending the reach of Brussels Ia as had been kickstarted by Owusu, with due deference to potential New Zealand jurisdiction (New Zealand domicile not having been established).

Note also that Mr Hurley had initially also relied on A34 BI1 however later abandoned this line. Article 34 is however cross-referenced in the discussion on Article 4’s domicile rule.

The Court of Appeal has concluded that the meaning of Article 4(1) and its applicability in this case is not acte clair and has referred to Luxembourg. The focus of the discussion was not whether or not Ms Gray was domiciled in England (see however my doubts as to the extension of Linder in the case at issue). Rather, the focus is on anti-suit and Article 4: Ms Gray submits that Article 4(1) provides her with a right not to be sued outside England, where she is domiciled, and that the court is obliged to give effect to this right by the grant of an anti-suit injunction to restrain proceedings in a third State.

As the Court of Appeal notes, the consequences of her arguments are that an EU-domiciled tortfeasor who was being sued only in a third State could require the court of his domicile to grant an anti-suit injunction – in contrast to the ‘flexible mechanism’ under Articles 33 and 34 in cases where the same or related proceedings exist in both jurisdictions. By the same token, if there are proceedings in a Member State, the defendant could seek an anti-suit injunction to prevent the claimant from taking or continuing unrelated proceedings in a third State. And, as appears from the present case, it is said that it makes no difference that the claimant’s case is not one that the courts of the Member State could themselves entertain, meaning that the ‘right’ said to be conferred on the claimant by Article 4(1) would have no content.

Yet again therefore interesting issues on the use of anti-suit to support EU (rather than: a particular Member State) jurisdiction. The Court of Appeal is minded not to side with Ms Gray, for comity reasons (anti-suit being a serious meddle in other States’ jurisdictional assessment) and because the use of anti-suit here would not serve the Regulation’s objectives of sound and harmonious administration of justice. At 52 it suggests the MS Gray line of reasoning would have profound consequence which would be expected to be explicit in the Regulation and not to be arrived at sub silentio – but refers to the CJEU for certainty.

Geert.

(Handbook of) EU Private international law, 2nd ed. 2016, Chapter 2 practically in its entirety.

 

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

Leave a comment

%d bloggers like this: