Archive for category General

Sir Peter Singer and languages at the European Court of Justice.

My eye fell last week-end on The Times of London’s obituary of Sir Peter Singer, z”l , who passed away late in December.

The Times recall among others his linguistic skills and refer specifically to his judgment in [2013] EWHC 49 (Fam) DL  v EL, upheld by the Court of Appeal in [2013] EWCA Civ 865Regular readers will be aware of my interest in languages at the CJEU.

Sir Peter was applying the Brussels IIa Regulation 2001/2003 and had to decide inter alia where the child was habitually residing. In an endnote he discussed C-497/10 PPU Mercredi v Chaffe. At 76 he juxtaposes the English and French versions of the judgment (a technique I insist my students and pupils employ), observing the difference between ‘stabilité ‘ used in the French version and ‘permanence’ in the English, concluding that ‘stability’ would be the more accurate term. The Court of Appeal discusses the issue in 49.

Delightfully accurate and erudite.

Geert.

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French Court annuls market authorisation of Roundup. Contrary to public perception, it neither used nor needed the precautionary principle to do so.

In March 2017, France’s ANSES, the relevant food, environment, and occupational health and safety agency, approved Monsanto’s Roundup Pro 360. That authorisation has now been annulled by the Courts at Lyon – around the same time the story broke of extensive unquestioned copy /pasting by regulators of industry dossiers.

At the beginning of its reasoning the court cites France’s environment charter, to which its Constitution refers. The Charter guarantees everyone in its first Article the right to live in a balanced environment and one with respect for human health. Article 5 entails the precautionary principle, with reference (of course) to scientific assessment and proportionality.

Yet this intro is made for dramatic effect only. The judgment is in fact nothing but a straightforward application of risk assessment requirements on the basis of prevention, not precaution, and a simple observation of infringement of EU law.

At 3 (p.7) the court points out the consequences of the relevant EU authorisation regime. Active ingredients such as glyphosate are authorised (or not; and potentially with conditions) by the EU. Applications in wich these substances are used, by the Member States.

France’s Centre International de Recherche sur le Cancer (CIRC) had classified glyphosate as ‘probably carcinogenic’. Its report on same is referred to by the court as a ‘handbook’, based on peer reviewed studies, the data of which are objectively verifiable as well as replicable. In the other corner, one study referred to by Monsanto (at 7). Relevant EFSA studies only look at the active ingredient and it is these studies upon which ANSES’ decision was based. These studies do not assess the active ingredients’ actual use in preparations such as Roundup Pro 360 which is 41.5% glyphosate. Consequently ANSES quite straightforwardly violates Regulation 1107/2009, particularly its Article 36(6), which prescribes that interaction between the active substance, safeners, synergists and co-formulants shall be taken into account in the evaluation of plant protection products.

The judgment is convincing and straightforward. The road to it was all but easy.

Geert.

EU environmental law (with Leonie Reins), Edward Elgar, soft cover edition 2018, p.28 ff.

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Nevsun Resources Ltd. v. Gize Yebeyo Araya, et al. Some of the unanswered Kiobel and Jesner Bank issues now at the Canadian Supreme Court.

Plenty of goings-on in the Corporate Social Responsibility /mass torts category, as regular readers of the blog and /or my Twitter-feed will know. Thank you Jutta Brunnée for alerting us to Nevsun Resources v Gize Ybeyo et al, currently making its way through the Canadian Supreme Court. Thank you also Cory Wanless for pointing out the core of the issue: Nevsun are not contesting jurisdiction (its existence is secure; much like in the EU context) e.g. on forum non conveniens grounds. Rather, the Supreme Court is asked whether there should be a new tort of breach of international law, and whether the “act of state” doctrine prevents adjudication.

The first question undoubtedly will lead to a discussion of similar issues raised in Kiobel, where they were not discussed by the USSC, and in Jesner Bank, where the USCC refused to be the dealmaker on public international law. The second issue is likely to imply consideration of the very foreign poicy considerations which featured heavily in circuit considerations prior to Kiobel.

Geert.

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

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Draft European ethics guidelines for trustworthy artificial intelligence.

An ethics-related posting seems apprioprate as last before ‘the’ season.

The relevant European expert group seeks feedback on draft ethics guidelines for trustworthy artificial intelligence.

Chapter I deals with ensuring AI’s ethical purpose, by setting out the fundamental rights, principles and values that it should comply with.
From those principles, Chapter II derives guidance on the realisation of Trustworthy AI, tackling both ethical purpose and technical robustness. This is done by listing the requirements for Trustworthy AI and offering an overview of technical and non-technical methods that can be used for its implementation.
Chapter III subsequently operationalises the requirements by providing a concrete but nonexhaustive assessment list for Trustworthy AI. This list is then adapted to specific use cases.

Of particular note at p.12-13 are the implications for the long term use of AI, on which the expert group did not reach consensus. Given that autonomous AI systems in particular have raised popular concern, most of which predicted in the longer term, it is clear that this section could prove particularly sticky as well as interesting.

For me the draft is a neat warm-up for when the group’s co-ordinator, Nathalie Smuha, returns to Leuven in spring to focus on her PhD research with me on the very topic.

Geert.

 

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Publish and rule. The Belgian Supreme Court on scholarship and the judiciary.

Thank you Jelle Flo for alerting us to the succinct Belgian Supreme Court ruling of 21 November 2018. A judge had published a scholarly piece on an issue of law, in tempore non suspecto, expressing a point of view which the Advocate General at the Court (here effectively acting as an amicus curiae) in a later specific case, agrees with.

The judiciary does publish regularly-ish. As do solicitors and barristers. For those of us who teach as well as practice, this at most leads to interesting times when opposing counsel or the bench points out a scholarly piece seemingly expressing a different point of view than our submissions; ordinarily, things are distinguishable…

For the judiciary, the Supreme Court sees no issue as long as the piece meets with scientific standards: ‘Le fait qu’un juge ait adopté un point de vue sur une question juridique dans une publication scientifique n’implique pas qu’il ne dispose plus de l’impartialité requise pour connaître d’un litige abordant ce sujet, pourvu qu’il ait développé sa pensée dans le respect des règles de la science du droit.’

The Court does not express guidance on what such standard might be – peer review perhaps comes to mind.

Geert.

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Bento Rodrigues (Samarco dam victims) v BHP Billiton in the English courts. A new CSR marker.

The media have been reporting on a considerable class action lawsuit, underway in the English courts, in the Corporate Social Responsibility /mass torts category.

The class action case was filed against Anglo-Australian company BHP Billiton on behalf of 240,000 individuals, 24 municipal governments, 11,000 businesses, a Catholic archdiocese and about 200 members of the Krenak indigenous community. It concerns victims of the Samarco dam collapse in Mariana three years ago.

I am reporting the case simply to ensure complete overview of the CSR /jurisdiction /applicable law issues reported on the blog. For as I am co-counsel acting for the claimants, I am not in a position to comment on the case until and if legal analysis will be in the public domain.

Geert.

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

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Lloyd v Google. High Court rejects jurisdiction viz US defendant, interprets ‘damage’ in the context of data protection narrowly.

Update 11 December 2018 leave to appeal applied for.

Warby J in  [2018] EWHC 2599 (QB) Lloyd v Google (a class action suit with third party financing) considers, and rejects, jurisdiction against Google Inc (domiciled in the US) following careful consideration (and distinction) of the Vidal Hall (‘Safari users) precedent.

Of note is that the jurisdictional gateway used is the one in tort, which requires among others an indication of damage. In Vidal Hall, Warby J emphasises, that damage consisted of specific material loss or emotional harm which claimants had detailed in confidential court findings (all related to Google’s former Safari turnaround, which enabled Google to set the DoubleClick Ad cookie on a device, without the user’s knowledge or consent, immediately, whenever the user visited a website that contained DoubleClick Ad content.

In essence, Warby J suggests that both EU law (reference is made to CJEU precedent under Directive 90/314) and national law tends to suggest that “damage” has been extended in various contexts to cover “non-material damage” but only on the proviso that “genuine quantifiable damage has occurred”.

Wrapping up, at 74: “Not everything that happens to a person without their prior consent causes significant or any distress. Not all such events are even objectionable, or unwelcome. Some people enjoy a surprise party. Not everybody objects to every non-consensual disclosure or use of private information about them. Lasting relationships can be formed on the basis of contact first made via a phone number disclosed by a mutual friend, without asking first. Some are quite happy to have their personal information collected online, and to receive advertising or marketing or other information as a result. Others are indifferent. Neither category suffers from “loss of control” in the same way as someone who objects to such use of their information, and neither in my judgment suffers any, or any material, diminution in the value of their right to control the use of their information. Both classes would have consented if asked. In short, the question of whether or not damage has been sustained by an individual as a result of the non-consensual use of personal data about them must depend on the facts of the case. The bare facts pleaded in this case, which are in no way individualised, do not in my judgment assert any case of harm to the value of any claimant’s right of autonomy that amounts to “damage”…”

The judgment does not mean that misuse of personal data cannot be disciplined under data protection laws (typically: by the data protection authorities) or other relevant national courses of action. But where it entails a non-EU domiciled party, and the jurisdictional gateway of ‘tort’ is to be followed, ‘damage’ has to be shown.

Geert.

 

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