Résumé : La série de posts que nous présenterons au cours des prochaines semaines retrace les discussions développées au sein des Directions d’études du cours d’été de l’Académie de droit international de la Haye (session de droit international privé), qui s’est déroulée du 31 juillet au 18 août 2017. Le premier séminaire a soulevé d’importantes interrogations relatives au rôle du droit international privé dans un contexte globalisé, ainsi qu’à sa capacité à résoudre des problèmes frappant la société dans son ensemble, tels que le réchauffement climatique, la violation des droits humains, les inégalités sociales, ou encore la corruption.
From the 31 July to 18 August 2017, students from all over the world attended the summer school of The Hague Academy on Private international law, which took place in the premises annexed to the well-known Peace Palace. Every year, the Academy offers a selected number of participants (mostly Ph.D. candidates and lawyers) with an advanced knowledge of the field to take part in the Directed Studies, an intensive course on fundamental questions of private international law (hereafter, PIL). This year’s Directed Studies were divided into 6 seminars organised and leaded by two renowned Professors: Prof. Geneviève Saumier (University of McGill, Canada) for the French-speaking session, and Prof. Laura Carballo Piñeiro (University of Santiago de Compostela, Spain) for the English-speaking one.
Through a series of 6 posts, I would like to offer access to the important discussions that took place in this fast-paced, international environment, and invite the legal community to reflect on them. The first seminar that we present today concerned “PIL and the other disciplines dealing with legal diversity. Divergent and convergent approaches to extraterritoriality”.
The Role of PIL in an Increasingly Interconnected Environment
Nowadays, the once well-established dichotomy between private and public law is facing important challenges. Henceforth, the borders of such a dichotomy are blurred and the two disciplines are constantly under the pressure to adapt to an always-evolving socio-economic context. On the one hand, public international law must deal with the presence of new kind of actors, such as non-governmental organisations and multinational corporations. As a result, the notion of acta iure imperii and the extent of immunities must be reconsidered continuously (a telling example in this respect is the Germany v. Italy case, rendered by the ICJ in 2012). Along the same line of reasoning, States may share their governmental concerns with other market players, by entrusting the enforcement of public law to private actors, such as consumer associations or private attorneys general. Therefore, the distinction between private and public enforcement becomes meaningless. Finally, States intervene on the market like private individuals more often than they used to in the past. This certainly adds more complexity to an already confusing landscape. On the other hand, private international law has to deal with the exponential rise of cross-border disputes that are increasingly diverse and complex. Among the factors that led to such a situation, we can mention the advent of the Internet and the interconnectedness of global markets.
Against this background, defining the role that PIL can or should play is a challenging task. The objective is to determine whether PIL is an adequate instrument of global governance that is capable of solving global issues, such as global warming, human rights violations, social inequalities, or corruption. Public international law is another potential candidate that could equally help tackling those general concerns. The question to know whether one discipline is in a better position than the other is left open.
To be sure, the globalisation process has generated new, challenging issues for many legal disciplines, including PIL. The example we expose in the next paragraphs show that States are not impermeable legal areas anymore and thus, it is necessary to think about creating instruments of global governance. For the time being, we note that globalisation clashes with the current fragmentation of legal orders, as well as the influence of national interests over global policy objectives.
Tackling Global Governance Gaps with Fragmented Instruments: The Example of Environmental Disasters and Collective Actions
Recently, some actions related to oil pollution in Nigeria have appeared in Dutch and English courts. In those actions, all victims brought proceedings against Royal Dutch Shell, domiciled in the United Kingdom with headquarters in the Netherlands, as well as its Nigerian subsidiary. Those proceedings have put the spotlight on the numerous hurdles that claimants face in order to obtain redress, such as the difficulty to hold the parent company liable for the acts and omissions of its subsidiary under the relevant applicable law, as well as the complexity to attract the foreign subsidiary in a European forum according to national rules of procedure. Typically, in these kinds of cases, conflict of law rules lead to the application of the law where the damage occurred that might be less protective than the law where the parent company is located. Hence, the difficulty to establish the direct liability of the parent company. Moreover, national rules on procedure do not always enable the claimants to “hook” the subsidiary located in a third-State and thus, start litigation against said defendant in a European forum. In the UK for example, the forum non conveniens doctrine might impede this procedural strategy. The jurisdictional difficulties generated by those cases revive the debate on the creation of a forum necesitatis for human rights violations and environmental disasters.
Another example is the inability of the current European private international law regime to satisfactorily provide clear rules on jurisdiction for collective actions (for more information on this topic, see my previous post on cross-border collective redress). Indeed, the Brussels Regulation (recast) follows a procedural individualistic approach, according to which one claimant usually faces one defendant at trial. Today, on the contrary, the rise of mass damages usually involves numerous victims or may even harm the society as whole. Along the same line of reasoning, the European legislation sometimes imposes the localisation of the court that has jurisdiction over the action for each damage individually. This impedes the centralisation of numerous claims in a unique location every time victims are located in different places. This result is unfortunate since collective actions have the ability to protect general interests or a plurality of homogeneous rights that extend beyond borders.
Against this background, PIL has remained rather passive until today. In light of the increasing importance of the global questions mentioned above, however, one might wonder whether PIL could or should endorse a more active role and help closing global governance gaps. In case the answer to that question is yes, it remains to be seen how this discipline should actually react.
Alexia Pato, Research assistant at the EBS University (Wiesbaden)