Posts Tagged Extraterritoriality
Charles Oellermann has excellent analysis of Spizz v. Goldfarb Seligman & Co. (In re Ampal-Am. Israel Corp. 562 B.R. 601 (Bankr. S.D.N.Y. 2017). The U.S. Bankruptcy Court for the Southern District of New York ruled that the avoidance provisions of the Bankruptcy Code do not apply outside the U.S. because, on the basis of the language and context of the provisions, Congress did not intend for them to apply extraterritorially. In so holding, it applied the Morrison test which was central to the United States’ Supreme Court ruling in Kiobel, which of course has been the subject of repeated analysis on this blog.
Whether an avoidance action (which in civil law jurisdictions would be tackled by an actio pauliana) is extraterritorial in and of itself, is not easily ascertained. In his review, Charles has superb overview of case-law applying a centre of gravity test: depending on the facts of the case, parties’ action does or does not take place outside the US in relation to the parties’ domicile, the subject of the transaction, etc. He also rightfully highlights that courts are aware that even if one were to apply the provisions extraterritorially, a US judgment might not be easily enforced against foreign debtors.
Case-law is evidently not settled and one imagines that the extraterritoriality of bankruptcy laws will in some form further end up at the USSC.
In Coast and Country Association of Queensland Inc v Smith & Ors  QCA 242, the Queensland Court of Appeal held among others that the Land Court was correct not to include emissions from the burning of coal ex Australia, in the environmental impact assessment part of permitting decisions relating to Queensland coal mines: ‘It is outside the Land Court’s jurisdiction under s 269(4)(j) Mineral Resources Act 1989 (Qld) to consider the impact of activities beyond those carried on under the authority of the proposed mining lease, such as the impact of what the Land Court described as “scope 3 emissions.” These include environmentally harmful global greenhouse gas emissions resulting from the transportation and burning of coal after its removal from the proposed mines.’
As BakerMcKenzie note (a good summary of the issues which I happily refer to), this does not mean that such impact may not be taken into account at all: It can be considered when weighing up whether “the public right and interest is prejudiced”, and as to whether “any other good reason has been shown for a refusal”. However the Land Court tends not to have much sympathy for that view: contrary to eg the Dutch approach in the Urgenda case, the Land Court views the coal market as essentially demand driven: if no Australian coal is used, other coal will be – so one might as well make it Australian.
The High Court of Australia, Baker report, have now confirmed (without formally endorsing the approach), that Land Courts decisions wil not be subject to further appeal on these grounds. (So far I have only found the reference to the case on the Court’s ledger).
Not much prospect for well to wheel considerations in Queensland /Australia therefore. Interesting material for a comparative environmental law class.
Neither extraterritoriality questions nor WTO concerns unsettle the CJEU. Animal testing ban applies outside EU.
The last part of this title is a bit of a stretch, apologies: soundbite beats nuance. I reported earlier on the High Court’s referral to the CJEU in the Cosmetics Regulation case, C-592/14 . The Court held last week, 21 September. Much like in C-366/10, the emissions trading /aviation case, the Court was unimpressed with accusations of extraterritoriality (‘territory’ is not discussed in the judgment) and does not even flag WTO concerns (Bobek AG had, and simply suggested this is an issue that solely lies with the WTO itself to resolve).
Referring to the need to interpret the Regulation with a view to its object and purpose, the Court insists that in particular to avoid easy circumvention of the Regulation, data obtained from animal testing carried out outside the EU, cannot be employed for the marketing of cosmetics in the EU, even if those tests had to be performed so as to meet the regulatory requirements of third countries.
Of course in WTO jargon, this recalls the discussion of non-product incorporated production processes and -methods (n-PR PPMs) however the Court is more concerned with regulatory efficiency.
C-191/15 Verein für Konsumenteninformation v Amazon SarL is one of those spaghetti bowl cases, with plenty of secondary law having a say on the outcome. In the EU purchasing from Amazon (on whichever of its extensions) generally implies contracting with the Luxembourg company (Amazon EU) and agreeing to Luxembourg law as applicable law. Amazon has no registered office or establishment in Austria. VKI is a consumer organisation which acted on behalf of Austrian consumers, seeking an injunction prohibiting terms in Amazon’s GTCs (general terms and conditions), specifically those which did not comply with Austrian data protection law and which identified Luxembourg law as applicable law.
Rather than untangle the bowl for you here myself, I am happy to refer to masterchef Lorna Woods who can take you through the Court’s decision (with plenty of reference to Saugmandsgaard Øe’s Opinion of early June). After readers have consulted Lorna’s piece, let me point out that digital economy and applicable EU law is fast becoming a quagmire. Those among you who read Dutch can read a piece of mine on it here. Depending on whether one deals with customs legislation, data protection, or intellectual property, different triggers apply. And even in a pure data protection context, as prof Woods points out, there now seems to be a different trigger depending on whether one looks intra-EU (Weltimmo; Amazon) or extra-EU (Google Spain).
The divide between the many issues addressed by the Advocate General and the more narrow analysis by the CJEU, undoubtedly indeed announces further referral.
(Handbook of) European Private International Law, 2016, Chapter 2, Heading 126.96.36.199.5.