A few thoughts on the study for the European Parliament re litigating CSR in the EU.

As I turn to preparations for a talk on CSR litigation and conflict of laws, Thursday next (11 April) in Cork, (which incidentally will be a day after the UKSC will deliver its verdict in Vedanta), I was consulting the report made for the European Parliament on the issue of access to legal remedies for the victims of corporate human rights abuses.

A few supplementary thoughts, fed also by an upcoming chapter of mine in an edited volume for OUP.

The report does an excellent job at collating much of the relevant case-law in a variety of countries: there is no better way to appreciate the difficulties than to consider the law in action. Despite the efforts of the team, particularly for the UK a few important cases were not included: Bento Rodriguez, Gemfield, Kalma, Garcia v Total.

The report flags the absence of forum non conveniens in Brussels I but omits the important forum non-type mechanism of Brussels Ia: Articles 33-34. This is likely to be important for the future application of CSR cases in the EU.

Analysis of KIK could have focused on the problematic qualification of statutes of limitation under Rome II. (Particularly as the report seeks to make recommendations to the EP and the EU Institutions as a whole).

The often missed elephant in the conflicts room of lex causae for veil-piercing and /or allocating duty of care. Lex fori? Lex causea? Lex societatis (e.g. for the Shell cases in the UK).

The suggestions under 6.2.2 for a forum necessitatis were in fact discussed in the review of Brussels I and it was Parliament at the time which (not unjustifiably) rejected it.

Ordre public considerations would be served well by final completion and release by the EC of its report on the use of ordre public in the EU: the report would have been a good reminder.

Finally in discussing access to justice issues no mention is made of the role of third party financing: this essentially enables much of this type of litigation yet is often seen by many in the CSR community as suspicious.

All in all the conflicts-related recommendations of the report ought to have been fine-tuned: I hope the above is of some service.


(Handbook of) EU private international law, 2nd ed. 2016, Chapter 8.


No Bauhaus, but certainly some building blocks. EP study on looted works of art and cultural goods.

Appreciation of the title of this piece of course depends on how one as an individual likes Bauhaus, or not. A November 2017 European Parliament Study on looted works of art and cultural goods is something of  a treasure trove for public and private international lawyers alike. The study looks at substantive law on the issue in the Member States (not the cup of tea for this blog) but kicks off with good overview of the challenges of sovereign immunity; applicable law (particularly with respect to choice of law; with inspiration being sought in the Belgian Private International Law Act, Article 90 (lex furti as a principle – the place from which the object was removed, but with corrections), and the issue of the application of foreign public international law by the courts.

Parliament is quite active on this issue. In May 2016 it had already published a study with more focus on the specific issue of art looted in times of conflict, and alternatives to court litigation but nevertheless with a short forray into conflict of laws (and reference to one or two interesting national cases).

Together the two studies are a good exercise for the conflicts mind.




Zwiefka Report adopted by Plenary. Brussels I review in final sprint

The European Parliament has adopted, in plenary,  the report of Tadeusz Zwiefka MEP (on which I reported here) on the review of the Jurisdiction Regulation.  Only 28 votes against (567 for): that is a big majority. Council is now due to adopt a common position which will undoubtedly confirm its June general approach.

I have posted earlier on many elements of this process.

The review of the Regulation is edging forward – into its final sprint.


Things are brewing in nano land – European parliament calls for tougher action in wake of national initiatives

The European Commission has recently unveiled a second, updated review of the application of the existing regulatory framework, to nanotechnologies (see here for a link to all relevant studies; and here for an overview of my own work on nano regulation; where possible, they are on ssrn). The first, in  2008, identified the ‘incremental’ approach as the option which the EU would take in regulating nanotechnologies. The second, just out, well, basically confirms this: the Commission continues to be of the view that there is no basis in EU law to apply a moratorium, or some kind of ‘no data, no market’ principle. It is quite happy with the definitional approach in current EU legislation. Finally it uses the accompanying staff working document to give an overview of current initiatives, databases, existing commercial use etc [incidentally, for the uninitiated, staff working documents  unlike they rather innocent name, in reality tend to be much more relevant than the actual Communications; they are not subject to translation requirements, escape strict word limits therefore, and tend to be much more detailed].

Quite a bit of attention goes to REACH, the Chemical policy Regulation, and its impact on nanotechnologies, however as the staff working document indicates, there might be other areas of the law, in particular with respect to occupational health and safety, which would have to (indeed are being) looked at more carefully. Frankly, the approach to the regulation of nanotechnologies is a bit like driving a minivan in one of these underground parkings: even if one has checked the maximum height (and the manual of your car confirms one does not exceed it), one still is a little bit tense driving in.

The Greens in the European Parliament have never been convinced of the incremental approach and gave indication of such in their reaction to the new report. Dome EU Member States such as France and The Netherlands would like to see regulation at a quicker pace – starting with transparency as to what is already on the market.

Continuing the minivan reference above: manuals can be wrong, height indicators at parkings ditto: one might end up badly scratching the car or indeed getting it stuck. Late lessons from early warnings comes to mind.



On the latest round in preparing for jurisdiction review: the Parliament report of September 2012

Readers of this blog will have noticed that one is getting quite excited about the impending review of the Brussels I Regulation, the Jurisdiction Regulation. I have previously reported on the impact of some of the Council’s proposals, in light of their June general approach document. Parliament has now added the ultimate input prior to the vote in First Reading in November.

Tadeusz Zwiefka MEP, the rapporteur on the review, has issued his (draft) Report which, much like the Council in its June 2012 document, regroups Parliament’s suggestions for amendment. Mr Zwiefka’s text largely speaks for itself and I shall not repeat it all here. It is clear that alignment between Parliament and Council is near complete, not all of it, I believe, very wisely so (in particular, on the arbitration exclusion and on the protected categories), as I have reported earlier when reviewing the Council’s general approach.

There is one advantage to having the Parliament’s text: it also includes all recitals (as opposed to the Council’s General Approach document which had some recitals included as footnotes, but not all). This clarifies at least one element, namely the application of the consumer title of the Regulation.

I had suggested earlier, that Council’s (and now also Parliament’s) insertion in Article 16(1) of a possible forum against companies not domiciled in the EU, for consumer’s contracts, does not trump the Council’s re-insertion of Article 4 (now as noted, 4(a)), hence the counterparty would still have to be domiciled in the EU, for the consumer contracts section to apply. Parliament’s recital 11(f) now suggests I was wrong:

‘However, in order to ensure the protection of consumers and employees, to safeguard the jurisdiction of the courts of the Member States in situations where they have exclusive jurisdiction and to respect party autonomy, certain rules of jurisdiction in this Regulation should apply regardless of the defendant’s domicile.’

Were this amendment to go ahead, the condition of ‘directing activities to’ the Member State’ in Article 15 JR, will gain ever more importance for the territorial scope of the Regulation.



EU law goes global – Compliance of landed fish and aquaculture products with EU legislation

Fisheries and aquaculture markets and regulation, are among the oldest in the world. Both economics and regulatory aspects of thee markets are often opaque. The challenge of their sustainable development typifies many hurdles for modern environmental and trade law. The European Parliament is commissioning research which will in a first instance map the application of EU law to said products. Hopefully it will also provoke some out of the box thinking on addressing regulatory challenges upstream.

There is no great difficulty in the principle of applying EU food and public health standards to the relevant imported products (although as the tender highlights, practical enforcement may be trickier). However from a legal point of view, the issues become more complex in a variety of ways, in particular

– when a jurisdiction decides to restrict or otherwise regulate imports of said products on the basis of their production and processing method carried out elsewhere. This difficulty is compounded when the criteria upon which the importing country regulates, are fuzzy. Examples would include ‘unsustainable management of fishing grounds’, in the absence of existing international standards.

– when a jurisdiction employs non-government labels to steer consumption in a certain direction. The legal complexity in using labels was of course recently clarified at the World Trade Organisation in US Tuna/Dolphin III.

The study to be commissioned by Parliament may not be designed to address all these issues – however jurisdictions like the EU increasingly test the limits of regulating production processes upstream (ie outside one’s jurisdiction) – often the only way effectively to regulate an environmental or public health issue.


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