Applying private international law in the information society is a touch tricky. Traditional PIL having relied on territorial links, applying it in an internet context may sometimes be testing. Article 5(3) of the European ‘Jurisdiction Regulation’ is a special jurisdictional rule which allows plaintiff to sue elsewhere than in the domicile of the defendant, for actions based on tort. In eDate advertising (aka Kylie Minogue), the European Court of Justice fine-tuned the Shevill criteria for application of Article 5(3) JR in an internet context, adding the ‘centre of (the victim’s) interests’ as a potential forum in the case of infringement of one’s personality rights. [see here]
In ‘G’, Case C-292/10, the Court was asked to provide input in the event of the defendant’s domicile being unknown (but with the defendant presumed to be an EU citisen), and the precise location of the server on which the website is stored, also unknown, although most probably in EU territory.
The Landgericht Regensburg asked no fewer than 11 questions of some complexity, with a degree of interdependence between them. The Court answered that Article 5(3) may certainly apply in such case, giving preference to legal certainty. However it expects due diligence on behalf of the national courts in making sure that a prima facie case of a link to the EU was established.
The ECJ failed subsequently to entertain the questions on the location of the harmful event given the uncertainty signalled above, for the relevant questions had been dropped by the referring court following the judgment in eDate Advertising. In my view, an answer to some of the now dropped questions on location of the harmful event (the locus delicti commissi) were certainly not nugatory, even after eDate Advertising. There is no Opinion of the Advocate General to assist.
Judgment in ‘G’
Aficionados of arbitration law will be aware of the long-running West Tankers saga. It pitches the English courts’ urge to uphold commercial arbitration, against the European Court of Justice’s zeal in upholding a pure (and in the case of the arbitration exception, far-fetched) lis alibi pendens rule. The battlefield at issue is the Brussels I Regulation on jurisdiction in civil and commercial matters. The Court of Justice ruled in February 2009 [Case C-185/07] that the English courts were out of their league in issuing an anti-suit injunction, prohibiting Allianz and Generali from pursuing the case in the Italian courts (on the basis of Article 5(3)’s special jurisdictional rule for tort) and obliging them to take the case to arbitration in London. Thus two cases continued: one, an arbitration proceeding, in London, with West Tankers and Erg (the initial counterparty) participating, but not Allianz and Generali (the insurers, subrograted into Erg’s rights). The other, for the Italian courts in ordinary, the current fate of which is less clear.
It would seem that West Tankers is now attempting to turn the Italian torpedo (launching proceedings in an Italian court to delay them) into a boomerang, by having the English courts enforce the arbitral award rendered in the meantime: West Tankers Inc v Allianz SPA & Anor  EWCA Civ 27.
While this intention is not as such formulated, one assumes that this manoeuvre in part at least is meant to ensure that any judgment eventually rendered in Italy, will not be enforceable in England (or indeed elsewhere in the EU) as the High Court’s enforcement might qualify as a ‘prior’ judgment between the same parties, per Article 34 of the Regulation. One gets the feeling that West Tankers will once again end up in Luxembourg… I have an article on all the above forthcoming and will put it on SSRN once finalised.
A bit of a heavy-handed title however I am often reminded of this maxim, credited (perhaps incorrectly) to Benjamin Disraeli KG. Over at SSRN I refer to it in discussing the statistical merits of the proposed Common European Sales Law. Over and above the (lack of) justification for the proposal, its relationship with European Private International Law is very unclear. The European Commission marches on with its harmonisation of European conflicts law however I for one would argue that with the proposed CESL it may have hit the proverbial wall.
End 2011, the Gerechtshof Amsterdam issued a further ruling in the long-running Trafigura case (exports of wastes, Ivory coast). I am restricted from commenting on the waste law merits of the case however it is interesting to note that the court employed CSR both as carrot and stick in determining punishment. As a stick: companies with a level of sophistication as Trafigura ought to organise themselves to be aware of the legal implications of their production process. As a carrot: the foundation created by the company supports global CSR projects, which merits a certain amount of leniency. As far as I am aware, this was the first time that CSR was used in such specific manner in court.
I have uploaded a short piece on the focus of the EU’s external trade policy given the continuing stalemate in the Doha Round over at the WTO.
However one spins the news coming out of the Geneva headquarters of the World Trade Organisation (‘WTO’), it would seem fair to say that the current ‘Doha’ or ‘Development’ or indeed ‘Millennium’ Round of multilateral trade negotiations is in dire straits. Overall agreement was narrowly missed in the summers of 2006 and again of 2008 (Doh!). Following this on-going failure, Free Trade Agreements (‘FTAs’) and Regional Trade Agreements (‘RTAs’) are very much en vogue, in the EU as elsewhere (Aha!).
28 February: Third ECJ judgment in the Terre Wallonne trilogy: can a national court temporarily uphold the effects of a national measure which, following an ECJ judgment, has been found to be illegal under the EIA Directive, with a view to avoiding the Member State being found to have violated the nitrates Directive? Those with a sense of drama pitched this as a battle between ‘procedural’ (EIA) and ‘substantial’ (Nitrates) EU environmental law (it is in this sense that this judgment is likely to have most precedent value).
Answer of the Court in Case C-41/11: YES, subject of course to conditions (including, which is a tricky assessment for the national court to make, having to find that complete annulment of the illegal measure would make the environment worse off.
One can imagine many other scenarios in almost all areas of EU law where this judgment will be called upon by those wanting to derive rights from illegal (under EU law) national measures which arguably uphold ‘higher’ ranking EU law.
Welcome to gavclaw.com . This blog reports on recent developments in my areas of expertise: private international law /conflicts of law. World Trade Organisation – WTO Law. Environmental Law. Energy law. It is not meant to be complete, evidently. It simply highlights recent developments in these areas which are relevant to my practice, teaching and research. Enjoy – I look forward to the exchange. Geert.