Posts Tagged Supply chain liability
Jabir and others v. KiK Textilien und Non-Food GmbH. German court kicks supply chain CSR litigation into the long grass. Questions on Statutes of limitation under Rome II left out in the open.
Update 11 April 2019 for Essex Law School /Anil Yilmaz legal opinion on the relevant common law principle at stake, see Opinion prepared for the case here.
Jonas Poell, Julianne Hughes-Jennett, Peter Hood and Lucja Nowak reported and succinctly reviewed Case No. 7 O 95/15 Jabir and Others v Kik early January – the ‘next week’ promise in my Tweet below turned out a little longer.
Survivors of a fire in a Pakistani textile supplying factory are suing Germany-based KIK as the “main retailer” of the merchandise produced in the Pakistani premises. Jurisdiction evidently is easily established on the basis of Article 4 Brussels Ia.
As Burkhard Hess and Martina Mantovani note here, claimants are attempting to have KIK held liable for not having promoted and undertaken, in practice, the implementation of “adequate safety measures” in the Pakistani factory (producing clothes), thus breaching an engagement they undertook in a Code of Conduct applicable to its relationship with its contractual counterpart.
Prof Hess and Ms Mantovani’s paper ‘Current developments in forum access: Comments on jurisdiction and forum non conveniens European Perspectives on Human Rights Litigation’ incidentally is an excellent stock taking on the issues surrounding mass tort (human rights) litigation.
The Dortmund court held that the case is time-barred under Pakistani law which was the lex causae per Rome II, Regulation 864/2007. Now, I have not had access to the full ruling (lest the 3 page ruling linked above is precisely that – which I am assuming it is not), so a little caveat here, however the court’s discussion of limitation periods is startlingly brief. Article 15 Rome II includes ‘the manner in which an obligation may be extinguished and rules of prescription and limitation’ in the scope of application of the lex causae’. Yet as the development inter alia of relevant English statute shows (discussed ia by Andrew Dickinson in his Rome II book with OUP), there are a multitude of issues surrounding statutes of limitation. One of them being Article 1(3) Rome II’s confirmation that evidence and procedure is not within its scope, another Article 26’s ordre public exception which certainly may have a calling here.
The court at Dortmund also rejects the argument that parties’ settlement negotiations before the claims were filed amount to choice of (German) law per Article 14(1). That would have triggered the 3 year German limitation period as opposed to the 2 year Pakistani one. Dr Jungkamp, the chamber president, argues that parties did not have any reflection on the Pakistani (or indeed German) limitation period in mind when they corresponded on the ex gratia out of court settlement, hence excluding the intention (animus contrahendi) required to speak of choice of law. I would suggest that is a bit of a succinct analysis to conclude absence of choice of law. Parties need not be aware of all implications of such choice for it to be validly made.
Appeal is possible and, I would suggest, warranted.
(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 4, Heading 4.7, Heading 4.8, Chapter 8, Heading 8.3.
Dortmund court found that the claims are time-barred under Pakistani law, which was applicable to the case pursuant to the Rome II Regulation.
Quite a few Rome II issues here. I have a blog post focusing on the conflicts issues forthcoming next week. https://t.co/dkcKLvugoa
— Geert Van Calster (@GAVClaw) January 12, 2019
Article 15, Bangladesh, Brussels Ia, Brussels Ia Regulation, Compact, Corporate social responsibility, CSR, Germany, http://www.lg-dortmund.nrw.de/behoerde/presse/Pressemitteilungen/PM-Urteil-KIK.pdf, Jabir and others v Kik Textilien, Jurisdiction, Kik, limitation, mass tort litigation, Pakistan, Rome II, statute of limitation, Supply chain liability, Tort, verjaring
A quick note to tickle the interest of the BIT community out there: I have come across a suggestion that recent initiatives on supply chain liability (for the notion see my earlier reblog of Penelope Bergkamp’s piece) may run counter the protection of foreign investment under Bilateral investment treaties. The analysis at issue is directed at Queensland’s chain of responsibility laws. While it is clearly a law firm’s marketing pitch (heyho, we all have to make rain somehow), the issue is real: supply chain liability laws can I suppose under circumstances qualify as regulatory takings just as any other new law.
Or can they?
- ‘Like Dassonville on steroids’. Bobek AG in Rheinland on personality v territoriality, the nature of EU harmonisation, and its links with (as well as historic roots of) conflict of laws and regulatory competition. 29/07/2020
- Avonwick Holdings. The High Court awkwardly on locus damni, and on ‘more closely connected’ in Rome II. 24/07/2020
- CJEU in Novo Banco: confirms mere presence of a natural person’s core immovable asset (the ‘family home’) does not in itself determine COMI (in insolvency). 22/07/2020
- The Hungarian Supreme Court on conduct in litigation resulting in implied choice of law. 21/07/2020
- Forum non and infringing copyright in the air: The Performing Rights Society v Qatar Airways. 20/07/2020
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