Archive for category EU law – General

Applicable law and statutes of limitation in CSR /business and human rights cases. The High Court, at least prima facie, on shipbreaking in Bangladesh in Begum v Maran.

Hamida Begum v Maran UK [2020] EWHC 1846 (QB) engages exactly the kinds of issues that I have just posted about, in court rather than in concept. On 30th March 2018 Mr Mohammed Khalil Mollah fell to his death whilst working on the demolition of a defunct oil tanker in the Zuma Enterprise Shipyar in Chittagong (now Chattogram), Bangladesh. On 11th April 2019 the deceased’s widow issued proceedings claiming damages for negligence under the UK Law Reform (Miscellaneous Provisions) Act 1934 and the Fatal Accidents Act 1976; alternatively, under Bangladeshi law. The scope of the proceedings has subsequently been broadened inasmuch as draft Amended Particulars of Claim advance a cause of action in restitution: more precisely, unjust enrichment.

Application in the current case is for strike-out and /or summary judgment (denying liability) hence the legal issues are dealt with at prima facie instead of full throttle level. One or two of the decisions deserve full assessment at trial. Trial will indeed follow for the application was dismissed.

The case engages with the exact issues in exchanges I had at the w-e.

Proceedings have not been brought against the owner of the yard and/or the deceased’s employer. Both are Bangladeshi entities. Maran (UK) Ltd,  defendant, is a company registered in the UK and, it is alleged, was both factually and legally responsible for the vessel ending up in Bangladesh where working conditions were known to be highly dangerous.

Focus of the oral argument has been whether claim discloses viable claims in English law on the basis of tort of negligence (answer: yes) and in unjust enrichment (answer: no).

The issue of liability in tort is discussed on the basis of English law, which is most odd for Rome II might suggest Bangladeshi law as the lex causae and Justice Jay himself says so much, but only at 76 ff when he discusses Rome II viz the issue of limitation. (Update 17 July 2020: I emphasise again that in applications for summary judgment, orders’ reasoning and order of argument may take odd form as a result of the prima facie nature of the proceedings).

On the tort of neglicence claimant argues under English law, with direct relevance to the current debate on environmental and human rights due diligence, that a duty of care required the defendant to take all reasonable steps to ensure that its negotiated and agreed end of life sale and the consequent disposal of the Vessel for demolition would not and did not endanger human health, damage the environment and/or breach international regulations for the protection of human health and the environment. The EU Ship Recycling Regulation 1257/2013 was suggested as playing a role, which is dismissed by Justice Jay at 24 for the Regulation was not applicable ratione temporis.

At 30, claimant’s case on negligence is summarised:

First, the vessel had reached the end of its operating life and a decision was taken (perforce) to dispose of it. Secondly, end-of-life vessels are difficult to dispose of safely. Aside from the evident difficulties inherent in dismantling a large metal structure, a process replete with potential danger, an oil tanker such as this contains numerous hazardous substances such as asbestos, mercury and radio-active components. Although these were listed for Basel Convention purposes and for the attention of the buyer, and the deceased was not injured as a result of exposure to any hazardous substance, the only reasonable inference is that waste such as asbestos is not disposed of safely in Chattogram. Thirdly, the defendant had a choice as to whether to entrust the vessel to a buyer who would convey it to a yard which was either safe or unsafe. Fourthly, the defendant had control and full autonomy over the sale. Fifthly, the defendant knew in all the circumstances that the vessel would end up on Chattogram beach. Sixthly, the defendant knew that the modus operandi at that location entailed scant regard for human life.

The gist of the argument under tort therefore is a classic Donoghue v Stevenson type case of liability arising from a known source of danger.

At 42 ff Justice Jay discusses what to my mind is of great relevance in particular under Article 7 Rome II, should it be engaged, giving claimant a choice between lex locus delicti commissi and lex locus damni for environmental damage, in particular, the issue of ‘control’. One may be aware from my earlier writings (for an overview see my chapter in the 2019 OUP Handbook of Comparative environmental law) that the determination of the lex causae for that issue of control has not been properly discussed by either the CJEU or national courts. This being a prima facie review, the issue is not settled definitively of course however Justice Jay ends by holding that there is no reason to dismiss the case on this issue first hand. This will therefore go to trial.

As noted Rome II is only discussed towards the end, when the issue of limitation surfaces (logically, it would have come first). Claimant does not convince the judge that the case is manifestly more closely connected with England than with Bangladesh under A4(3) Rome II. Then follows the discussion whether this might be ‘environmental damage’ under Article 7 Rome II, which Justice J at 83 ff holds preliminary and prima facie, it is. That might be an overly broad construction of A7 Rome II, I believe, which may show too much reliance on the context of the litigation – Update 17 July 2020: here, too, it is important to note again that without having seen submissions it is difficult to speculate on the arguments made.

At 85 a further issue for debate is trial is announced, namely whether the one-year statute of limitation under Bangladeshi law, should be extended under Article 26 Rome II’s allowance for ordre public (compare Roberts and CJEU C-149/18 Martins v DEKRA – that case concerning lois de police and statutes of limitation. 

Plenty of issues to be discussed thoroughly at trial.

Geert.

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

 

 

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Jurisdiction, applicable law and the Draft Business and Human Rights Treaty. Some serious conflicts material in CSR /business and human rights laws.

I thought I should post briefly, including for archiving purposes, on one or two developments and recommendations viz the draft UN Business and Human Rights Treaty. This also follows exchanges I had at the w-e on the issue.

See Nadia Bernaz here for an introduction and see here for a document portal. The overview of statements made, shows some attention being paid to forum non conveniens, universal jurisdiction, and applicable law – a summary of those comments re applicable law is here at 84. That same document in Annex II contains the list of experts and further in the Annexes, their views on jurisdiction etc. (incl. forum necessitatis) which anyone wishing to write on the subject (that would include me had I not a basket already thrice full) should consult.

Claire Bright at BIICL also posted her views on the applicable law issues last week, including a proposal to exclude renvoi from the applicable law Article.

Things, they are moving. Including in case-law. That will be my next posting.

Geert.

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

 

 

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Alexander bros v Alstom. A reminder of the relevance of EU law for New York Convention refusal of recognition of arbitral awards on ordre public grounds.

In Alexander Brothers Ltd (Hong Kong SAR) v Alstom Transport SA & Anor [2020] EWHC 1584 (Comm) Cockerill J discussed inter alia (at 177 ff) the impact of EU law on the ordre public assessment for potential refusal of recognition of an arbitral award under section 103 of the 1980 New York Convention.

CJEU authority are C-126/ 97 Eco Swiss (concerning EU competition law) and C-168/ 05 Claro (unfair terms in consumer contracts). At 183 Cockerill J does not suggest the CJEU authority should no longer stand. Indeed she suggests obiter that there is no reason to suggest the CJEU’s line of reasoning should not apply to wider issues than just competition law or consumer law. However, the burden of proof of showing that particular parts of EU law are of a nature to justify the ordre public exception, lies upon the party objecting to recognition. In casu Alstom have fallen short of that duty. Yes, there is scant reference to anti-corruption in the private sector; and yes there is EU money laundering law. However (at 186) ‘the EU has, in general terms, set its face against corruption. But aside from the area of money laundering it has not put in place mandatory laws or rules. In the context of international corruption of the kind in focus here it has left it to the individual member states to adopt what measures seem good to them. There is, in short, no applicable mandatory rule or public policy.’

An interesting discussion.

Geert.

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Suing the EU in The Netherlands. Stichting Human Rights for Eritreans v the European Union and its jurisdictional challenges.

Update 19 MAy 2020Hat off to Graf von Luxembourg for referring us to a recent discussion on the increasing use of Dutch Courts for public interest litigation.

Many thanks Russell Hopkins for alerting me to Stichting Human Rights for Eritreans v the European Union, demanding a halt to EU aid worth 80 million EUR being sent to Eritrea. The Foundation Human Rights for Eritreans argues the aid project financed by the EU aid relies on forced labour. Claimants have a portal with both the Dutch and English versions of the suit.

Of note to the blog is the jurisdictional section of the suit, p.32 ff. Claimants first of all put forward that the CJEU’s Plaumann criteria (which I discussed ia here in the context of environmental law) effectively are a denial of justice and that Article 6 ECHR requires the Dutch courts to grant such access in the CJEU’s stead. An interesting argument.

Note subsequently at 13.9 ff where Brussels Ia is discussed, the suggestion that given the large diaspora of Eritreans in The Netherlands, locus damni (actual or potential) lies there. This is in my view not an argument easily made under Article 7(2) Brussels Ia given CJEU authority.

Geert.

 

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Ships classification and certification agencies. The CJEU (again) on ‘civil and commercial’, and immunity.

I earlier reviewed Szpunar AG’s Opinion in C‑641/18 Rina, on which the Court held on 7 May, confirming the AG’s view. Yannick Morath has extensive analysis here and I am happy to refer. Yannick expresses concern about the extent of legal discretion which agencies in various instances might possess and the impact this would have on the issue being civil and commercial or not. This is an issue of general interest to privatisation and I suspect the CJEU might have to leave it to national courts to ascertain when the room for manoeuvre for such agencies becomes soo wide, that one has to argue that the binding impact of their decisions emanates from the agencies’ decisions, rather than the foundation of the binding effect of their decisions in public law.

I was struck by the reference the CJEU made at 50 ff to the exception for the exercise of official authority, within the meaning of Article 51 TFEU.

Geert.

(Handbook of) EU private international law, 2nd ed. 2016, Chapter 2, Heading 2.2.16.1.1.

 

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Our scoping study on a principle of ‘essential use’ in international and European regulatory (particularly chemicals) law.

Update 15 May 2020 see the ECHA consultation on PFAS regulation launched this very week.

With Kathleen Garnett I have co-authored a paper where we scope the ‘essential uses’ approach to product regulation, particularly in chemicals.

Could calls for the stricter regulation of one particular type of chemical herald the introduction of a new (or not) ‘principle’ in international and EU regulatory law, namely that of ‘essential use’ as a precondition for market authorisation?

The concept of ‘essential use’ or ‘non-essential use’ has been referenced in a number of EU policy papers. Kathleen and I focus on Per- and polyfluoroalkyl substances (‘PFAS’)  in chemicals legislation and firstly, map the concept of ‘essential use’ in international and EU law; further, discuss its limited application in the case-law of the European Court of Justice; and, before we conclude, carry out a preliminary investigation as to (if it does not currently exist in EU law), whether it might be so included de lege ferenda.

Happy reading. We are submitting to journal.

Geert, Kathleen.

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A reminder: Austrian courts apply CJEU Eva Glawischnig-Piesczek v Facebook ruling. Limits removal to national territory only but does not rule out worldwide removal on principle.

I had already reported in March on the first application of the CJEU C-18/18 Eva Glawischnig-Piesczek v Facebook ruling in an update to my post on the latter. I thought I’ld add a separate post on the ruling for it, well, deserves it: the court held that orders based on Austrian copyright are limited to Austria (given copyright’s territorial limitations), but if they are based on personal rights, the claimant has to specify the requested territorial reach (so potentially global).

IPKat have further analysis here. As one or two of us discussed at the time of the CJEU ruling: the infringement of personality rights angle is an important one.

Geert.

(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 2, Heading 2.2.8.2, Heading 2.2.8.2.5.

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Confédération Paysanne, precaution and GMOs. French High Court issues its final ruling taking CJEU findings to their logical conclusion.

A short post to flag the French Conseil d’Etat’s final ruling in which on 7 February it held that organisms obtained via in-vitro mutagenesis techniques should be subject to GMO regulation and that consequently as EurActiv summarise the French authorities must update regulation to include such crops within six months, which includes identifying the agricultural plant varieties which have been obtained by these techniques and subjecting them to the assessments applicable to GMOs.

The ruling follows the CJEU’s mutagenesis finding in C-528/16, reviewed at the time on Steve Peers’ blog here and subsequently by KJ Garnett in RECIEL here. The ruling put agro-bio industry narrators in a spin but in essence is an utterly logical consequence of EU law.

Geert.

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Ships classification and certification agencies: The immunity ship ain’t sailing according to Szpunar AG in Rina.

In C‑641/18 Szpunar AG opined on Tuesday and notes that the request of the referring court brings to mind the current debate about the influence of human rights on private international law. It seeks to ascertain whether and, if so, to what extent the scope of ‘civil and commercial’ in the Brussels Ia Regulation may be influenced by the interest in ensuring access to the courts, a right guaranteed by Article 47 Charter.

(The case itself is subject to Brussels I which did not yet include ‘acta iure imperii’. As the AG notes at 56, this is merely a clarification following CJEU interpretation of the previous concept.

Relatives of the victims, along with survivors of the sinking of the Al Salam Boccaccio ’98, a ship sailing under the flag of the Republic of Panama, which happened in 2006 on the Red Sea and caused the loss of more than a thousand lives, have brought an action before the District Court, Genoa against the companies Rina SpA et Ente Registro Italiano Navale. Claimants argue that the defendant’s certification and classification activities, the decisions they took and the instructions they gave, are to blame for the ship’s lack of stability and its lack of safety at sea, which are the causes of its sinking.

Defendants plead immunity from jurisdiction. They state that they are being sued in respect of certification and classification activities which they carried out as delegates of a foreign sovereign State, namely the Republic of Panama. They argue activities in question were a manifestation of the sovereign power of the foreign State and the defendants carried them out on behalf of and in the interests of that State.

The AG first of all reviews how the principle of customary international law concerning the jurisdictional immunity of States relates to the scope ratione materiae of Brussels Ia. He starts his analysis noting that in the absence of codification at international level (international conventions on the issue not having met with great success), the principle concerning the jurisdictional immunity of States remains to a large extent governed by customary international law.

There is little use in quoting large sections of the Opinion verbatim so please do refer to the actual text: the AG opines (referring ia to C-154/11 Mahamdia) that it is unnecessary to refer to the principle of customary international law concerning State immunity from jurisdiction when considering the scope ratione materiae of Brussels Ia. Those principles he suggests do play a role when it comes to enforcing any exercise of such jurisdiction against the will of the party concerned.

At 46: ‘the distinction between disputes which are civil or commercial matters and those which are not must be drawn by reference to the independent criteria of EU law identified by the Court in its case-law. Consequently, an act performed in the exercise of State authority (acta iure imperii) from the perspective of the law relating to immunity, is not necessarily the same as an act performed in the exercise of State authority according to the independent criteria of EU law.’ (The latter as readers of the blog will know, are not always clearly expressed; see ia my review of Buak).

In the second place, the AG then considers whether an action for damages brought against private-law entities concerning their classification and/or certification activities falls within the scope of BIa. At 83, following extensive review of the case-law (almost all of which I also reviewed on the blog and for earlier cases, in Chapter 2 of the Handbook), the AG opines that neither the fact that the acts in question were performed on behalf of and in the interests of the delegating State nor the possibility of the State’s incurring liability for harm caused by those acts, in itself conclusively characterises those acts as ones performed in the exercise of powers falling outside the scope of the ordinary legal rules applicable to relationships between private individuals. 814/79 Rüffer also makes a non-conclusive appearance.

At 95 then follows the core of the factual assessment: defendants’ role is limited to carrying out checks in accordance with a pre-defined regulatory framework. If, following the revocation of a certificate, a ship is no longer able to sail, that is because of the sanction which, as the defendants admitted at the hearing, is imposed by Panama law. Not acta iure imperii – the issue falls under Brussels Ia.

Finally, must as a result of a plea of immunity from jurisdiction a national court decline to exercise the jurisdiction which it ordinarily derives from the Regulation? In a section which will be interesting to public international lawyers, the AG reviews international and EU law (particularly Directive 2009/15) and concludes that there is no principle in international law which grants immunity to certification agencies in cases such as the one at hand.

To complete the analysis, the AG opines that should the Court disagree with his views on immunity, the national court’s views on jurisdiction would not be impacted by the right to court guarantees of the Charter, for there is no suggestion at all that the victims would not have proper access to Panamian courts for their action.

Note of course that the Opinion does not address lex causae.

Geert.

(Handbook of) EU private international law, 2nd ed. 2016, Chapter 2, Heading 2.2.16.1.1.

 

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The mooted Flemish ban on fireworks displays. A concise primer (with referral) on exhaustion, property rights (ECHR) and the internal market (TFEU).

Anyone short of exam essay Qs, consider the planned Flemish ban (with room for local, event-related exceptions) on fireworks displays. Akin to the issues in Ivory Ban or pet collars, at the core of the legal analysis is the legality of use restrictions on goods lawfully marketed in other Member States (see also my brief review of Amsterdam’s booze bikes here).

The exhaustive effect or not of EU secondary law will have to be discussed, as will Article 34 TFEU (including consultation and commissioned research issues and of course proportionality), and indeed A1P1 (Article 1, first Protocol) ECHR.

(For a recent more locally relevant issue, see the Supreme Court’s (Raad van State) December 2019 annulment of an Antwerp highway code rule banning the use of quads and introducing a strict exemption policy).

Geert.

 

 

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