PRIVATE IL
LES 1
EXAM (see former exam on toledo)
- Part 1: Statute reader: short book with just text of EU regulations
o You can only highlight + underline + cross-refer to other articles/laws ( nothing lse)
o Verbetert door assistenten
- Part 2: status reader + case book + handbook (but only highlighting)
o verbetert door prof
o reference to cases, make it structured, write legibly!
Use professors twitter and blog as a helpful means
1. INTRODUCTION
1.1. The concept, Nature and Development of PrIL
- See recent headlines (see PP, slide 13)
- By the end of the course you must
o understand the language of Private international law
o you will appreciate the attraction of Private international law
= The attraction of private international law is that it allows you to use the courts of states and or use
the laws of different states (other than yours) to arrange your/your clients private relationships
(whether it be marriage, torts, contracts, estate planning, inheritance,…)
o To cease courts that are more attractive in your home jurisdiction
- Passive approach to private IL: ?
- Proactive approach to private IL: ask yourself, at the beginning of a client coming to you who wants to sue his
wife, if you can then engineer your claim, and convince that court that the law of a different state is more
appliable to your case => if you can, you have won
(e.g. convincing a Dutch judge to apply Brazilian environmental law against an Australian company)
- PrIL >< PIL
1. Private relations
o >< public IL: states
o Private IL we don’t concern ourselves with relations between states
o Its about relationships between individuals and corporations
2. Designed to function at the domestic level in domestic courts
o Everything you learned in your domestic jurisdiction (torts, contracts, decendancy, state
law, insolvency) happening in an international context
o PrIL is and remains national law (with the evolving exception of European law)
But… distinction has become harder to make between PrIL and PIL
o Government agency enforced public law is intimately bound up with private interest (s.a. privacy
laws)
o Public interest litigations conflates public and private interests
o Principle of universality or ‘universal jurisdiction’
o Criminal (incl. migration, extradition, deportation) does NOT engage PrIL
1
,PRIVATE IL
- 3 questions PrIL asks itself // 3 distinct processes in PrIL
1. Jurisdiction: what are the courts that will hear the case in case of dispute?
o Often more than one: competing courts, as both parties will go to diff courts
o Jurisdictions often called “forum” in Latin
=> lex fori = the law of the country where the proceedings are successfully brought
=> forumshopping = seezing a court which serves your interests best
2. Applicable law: what is the applicable law (the governing law?) that the court will use
o Lex causae (law of the issue)
o Court won’t always use their own laws!
If it does applies its own laws this is referred to as “gleichlauf”
Gleichlauf = vb. Belgian court applying Belgian law (does not happen often)
3. Recognition and enforcement
o Having seized a court for reasons to be discussed, and having convinced the court that the law
they should apply – you now have to take that judgment from your court and have it recognized
and enforced from a different one where the decision is issued!
o Recognition and enforcement of the judgment
o A good international litigator (and advisor) must have thought about the third step, before deciding
on the 1st and 2nd step!
o Amongst common law countries there is a great amount of mutual trust among common law
judgments (e.g. English courts are very happy to enforce judgments from Singaporean court, India
is very opposed to enforcing non-common law judgments)
e.g. to have a Brugge-judgment recognized in Mumbai will be very difficult and will therefore not be a
good idea
1.2. Sources
- Main source within EU: EU Law (typical regulations, not directives)
o Legal basis: art. 81 TFEU – ‘the EU may adopt legislation on judicial cooperation’
Judicial cooperation includes jurisdiction, applicable law, recognition and enforcement
Art. 81 TFEU: (1) The Union shall develop judicial cooperation in civil matters having cross-border implications,
based on the principle of mutual recognition of judgments... Such cooperation may include the adoption of
measures for the approximation of the laws and regulations of the Member States.
Brussel Ia Regulation (which looks at jurisdiction in civil and commercial matters),
Rome I Regulation (which discusses the applicable law for contracts),
Rome II (which does the same for non-contractual obligations).
Insolvency Regulation (which deals with international restructuring).
e.g;.: I am a Belgian skier and I ski on the slopes of Austria. I am crashed into by a group of drunken Dutch skiers.
The question I will ask myself are: what law applies when I sue those Dutch people? And where do I sue them?
Brussels Ia would deal with the ‘where question’ and Rome II will deal with the question which law applies.
Other regulations (won’t focus on this)
o Brussels IIA Regulation (which deals with parental responsibility and maintenance),
o Rome III Regulation (which deals with divorce applications, both jurisdiction and applicable law),
o Maintenance Regulation,
o Succession Regulation (which deals with the jurisdiction and laws applicable to
international succession)
2
,PRIVATE IL
e.g..: you are a dual national; you die interstate in Flanders. Can you chose for English law to apply to your estate, seeing
as you have British nationality. One of the attractions of English law is that you can disinherit children, whilst under
Belgian law this is almost impossible. The EU succession Regulation allows you, as a dual national, to apply English
law to your estate (even after Brexit). If you are Danish then you can do the same apply Danish law to your estate.
This is very attractive. Why not set up a Lichtenstein trust to shield inheritance from Belgian inheritance taxes, while
you’re at it?
CJEU has a massive role to play in -> see case law
o Also interesting: Look beyond CJEU case into the national litigation (curia website – also contains
summary of the preliminary review of national courts itself in all EU languages)
Prof encourages to do this to read more into the arguments of the parties
o Read some national judgments to get flavour on issues they talk about
- Residual PIL = the national rules which haven’t been harmonized by EU-law
o Residual space
= when national rules apply for jurisdiction, applicable law and recognition
ex. Wetboek IPR: European law applies in this issue, even if it doesn’t apply => recognition of the
scope of Rome (we will apply it even if the issue doesn’t fall within the scope)
- Hague Conference, HCCH (1893):
o 85 members, although not an IO
o Works through adopting conventions
Unequal ratification practice
States can pick and chose which conventions they’ll ratify
o EU is a separate party in this conference: HCCH has thus an influence on EU Law
Sometimes EU will use Hague-model, but sometimes it will have its own approach
(that’s when you have issues)
o When one of the element is non-EU (third country involved) there might be a Hague-instrument
applied to the issue
o If there is no Hague-instrument, and no EU-instrument – there might be bilateral conventions
Typical in family law (Belgium has many conventions with Algeria, Morocco,…)
That is the biggest obstacle – parties itself, and judge get confused in scope of application of
international conventions, bilateral conventions and EU law (often problem in family issues)
o Recent: Hague Judgements Convention (2019) on civil law & commercial litigation
- Lugano convention (UK & EU)
Hierarchy between sources: 2 questions
1. Does EU Law apply? Is this scenario covered by EU-law?
a. Yes? Then you cannot use national law!
b. No? You can use residual private international law
2. If EU law doesn’t apply, does international law apply? e.g. does Hague Convention apply? Or bilateral
convention?
In practice, the hardest part is finding the source that potentially applies
- Lots of research
- Which treaty/convention should be used? Statutory interpretation of EU-law?
3
, PRIVATE IL
1.3. Classic PIL-cases (zie p. 7-11 SV)
Depp v Heard:
- Depp sued tabloid + Heard in the UK, and again in Virginia (US)
- Why twice? = FORUMSHOPPING!
- Almost all jurisdiction apply Gleichlauf when it comes to libel
- First thing when client comes in: qualification in particular category (insolvency/ corporate restructuring
/marriage /cohabitation /contract /tort /…)
- Depp suing both in UK and US is due to LIBEL = QUALIFICATION (tabloid called him wife-beater)
o Why UK?: you will get a straightforward case there!
o “truth-defence” => you as a defendant must defend that what you said is true
Daily mail had to proof that what they had said was true
Heard was merely a witness (was not sued)
o Made England a walhala for libel claimants and for slapp-suites (= suite which you introduce in a
jurisdiction friendly to you for whatever reason, to shut the other one up)
This is a big problem in environmental litigation etc. where big corporations sue them
for libel
Effective strategy: burden of proof + also because England is a “cost-follow-the-event”
jurisdiction where if you loose the claim you pay both your own cost and also the cost of
the other party (unlike US)
o Slapp suites are so broad, and thus many will retract what they said
e.g. if Veto (leuven studentenkrant) writes about US corporation, it can be sued
Fighting those claims is so expensive, and therefore they are often settled => “slapp”
because it scares the defendants, ant they will retract
- In UK Depp lost, because juddge was not convinced – and because he was of the opinion that Depp tried to
switch roles and was harassing Heard
- In US States, they are very defendend of celibrities – as the claimant has to proof that what the defendant says
is untrue (why Virginia = location of the printing presses of Washington post)
o Virginia has very strict anti-slapp laws (which are likely going to put into force in EU, and
England and Wales) therefore slapp-suites will swift to Scotland
- Depp must proof that Heard wrote a column, which is untrue, on him with malicious intent (same with
Beckham, had to proof the malicious intent of the untrue claims made about him)
4
,PRIVATE IL
- Beckham could not sue in England because he was not domicilied there, and the publisher of the tabloid was
in the US
Relevant case that shows you forumshopping (choosing jurisdiction of court for the applicable laws)
e.g. Kate Middleton suing a photographer
- Qualification: invasion of PRIVACY
- Forumshopping: Kate could have sued in England, because she was domiciled there
o Back then a suit due to invasion of privacy didn’t exist (now it is developing)
o A succesfull litigator formulates the claim as to convince the judge to make it easier that they
have jurisdiction or that makes it easier to convince them to apply law xyz
You must look beyond what the client tells you
o Middleton couldn’t sue in England because that suit for privacy didn’t exist
o Therefore she had to sue in France against the French publisher
o The golden rule in EU jurisdiction rule is that you can almost always immediately sue in the home
country of defendant
o France was attractive as French law is protective of privacy, even of celebrities (gleichlauf)
She gets judgment of paparazzo having to handover the photos
BUT: difficult to enforce! – they were already spreading on the internet
- If you want to sue google bc you want private information removed, it will be easy for you to have
European judge to say “yes indeed must be removed”
o Google will say okay and make sure that in EU member states nothing will comes up, but outside EU
it will still be visible
o => enforcing the EU judgment in US, where all big internet giants are located is difficult because the
American judge will say – but we cant have a judgment enforced in the US which goes against a
fundemantel freedom of US (freedom of expression
Les 2: 15/02
Two examples that show forumshopping: why you want to sue in a certain jurisdiction and not in another
=> reason: standing
- France: strict on privacy
- UK: strict on lible
Example: Joseph Weiler
- Weiler edits an online journal, in that journal there is a book review section
- Weiler = American professor, lived in the States, with US and Israeli nationality
o He publishes a review by a German professor, written by a fellow academic who has French
and Israeli nationality
- Book review was very negative, no one had read the book review until the author made a case on it
- Qualification: lible + ??
- She took it to court in France; the only country that does not feature much other than the author has French
nationality (not in US where publisher is located)
- EU law does not apply (bc Weiler not domiciled in EU, but in States)
- Reason for France: procedural reason ( LEX FORII)
o Procedural issues is always subject to lex forii
- As a French she can sue in France
- In France lible is a criminal offence
o All you need to do is file a complaint
5
, PRIVATE IL
o Judge will investigate the case for you – all you need to do is cease the judge and say “I have been
libled” – and formulate your civil claim (only thing you yourself need to do)
- How can I be sued for something that didn’t happen in France at all? Even for a criminal claim?
= PAROCHIAL/EXORBITANT JURISDICTIONAL RULE
= localistic attitude
- French judge held that the case was ridiculous and claimant herself was ordered to pay
Example: Agent Orange
- = A pesticide which US army sprayed on Vietnamese jungle to facilitate US operations in Vietnam
- Devastating impact on Vietnamese environment + the people
- Lady with dual Vietnamese-French nationality sues in France against the producer of Agent Orange
(because you cannot sue an army in a diff state)
Example: Child-abduction
- Both at EU level and Hague conference level there are rules on how such cases must be ruled
- Australian-italian family | Australian held that the jurisdiction of Italian must be respected and therefore
the children must be returned
Example: insolvency law
- Cramdown: applicable in English law – where you can force unwilling creditors to do a haircut, to force them
- Therefore EU corporations used English courts and English restrucering law
= successful way of forum shopping
- Even till this day (after brexit)
Ex.: hema, Nyrstar,…
Divorce tourism
- London = capital of divorce for wealthy couples
- Why England?: procedural – but mostly because of applicable law => England starts of from equal splitting
of assets from both partners, even when the material contributions of one of the partners is smaller than the
other
- English law a long time disregarded prenuptials: the wife will get 50%
whatsoever Bargaining power/outsourcing
- Gigeconomy: business doesn’t employ you, but rather uses your services – you can use our platform
(uber, Deliveroo, Ryanair,…) but you are self-employed
- Employmentcontract: decided by
- Romanian truckdriver convinced the courts that he wasn’t an employee, and not Romanian law but
Belgian law was applicable
- Private international law protects employees and consumers against forced agreements
read all of this in grote SV in depth (pp. 14 – 17)
Example:
- Suing big corporations, in their domestic countries but using law of the global south as that is more attractive
(Nigerians pursuing Shell in the Netherlands, Brazilians pursuing BHP (big AngloAustralian mining giant)
in England, on the basis of a mining disaster that took place in Brazil.)
- These are cases where a lot of the technical aspects of PIL come to live. It is that subject matter that you need
to then ask yourself: “can I pursue Shell of the Netherlands, as a legal representative of a community of
Nigerians, that have had their human rights abused by Shell for 30-40 years? Can I make a case in the
Netherlands? And how do I do this?”. Those kinds of cases are the ones where we can use our PIL
knowledge, our technical knowledge about conflict of laws. Once you master the rules, you will be able to
pursue worthwhile causes, that are not only about money.
6
LES 1
EXAM (see former exam on toledo)
- Part 1: Statute reader: short book with just text of EU regulations
o You can only highlight + underline + cross-refer to other articles/laws ( nothing lse)
o Verbetert door assistenten
- Part 2: status reader + case book + handbook (but only highlighting)
o verbetert door prof
o reference to cases, make it structured, write legibly!
Use professors twitter and blog as a helpful means
1. INTRODUCTION
1.1. The concept, Nature and Development of PrIL
- See recent headlines (see PP, slide 13)
- By the end of the course you must
o understand the language of Private international law
o you will appreciate the attraction of Private international law
= The attraction of private international law is that it allows you to use the courts of states and or use
the laws of different states (other than yours) to arrange your/your clients private relationships
(whether it be marriage, torts, contracts, estate planning, inheritance,…)
o To cease courts that are more attractive in your home jurisdiction
- Passive approach to private IL: ?
- Proactive approach to private IL: ask yourself, at the beginning of a client coming to you who wants to sue his
wife, if you can then engineer your claim, and convince that court that the law of a different state is more
appliable to your case => if you can, you have won
(e.g. convincing a Dutch judge to apply Brazilian environmental law against an Australian company)
- PrIL >< PIL
1. Private relations
o >< public IL: states
o Private IL we don’t concern ourselves with relations between states
o Its about relationships between individuals and corporations
2. Designed to function at the domestic level in domestic courts
o Everything you learned in your domestic jurisdiction (torts, contracts, decendancy, state
law, insolvency) happening in an international context
o PrIL is and remains national law (with the evolving exception of European law)
But… distinction has become harder to make between PrIL and PIL
o Government agency enforced public law is intimately bound up with private interest (s.a. privacy
laws)
o Public interest litigations conflates public and private interests
o Principle of universality or ‘universal jurisdiction’
o Criminal (incl. migration, extradition, deportation) does NOT engage PrIL
1
,PRIVATE IL
- 3 questions PrIL asks itself // 3 distinct processes in PrIL
1. Jurisdiction: what are the courts that will hear the case in case of dispute?
o Often more than one: competing courts, as both parties will go to diff courts
o Jurisdictions often called “forum” in Latin
=> lex fori = the law of the country where the proceedings are successfully brought
=> forumshopping = seezing a court which serves your interests best
2. Applicable law: what is the applicable law (the governing law?) that the court will use
o Lex causae (law of the issue)
o Court won’t always use their own laws!
If it does applies its own laws this is referred to as “gleichlauf”
Gleichlauf = vb. Belgian court applying Belgian law (does not happen often)
3. Recognition and enforcement
o Having seized a court for reasons to be discussed, and having convinced the court that the law
they should apply – you now have to take that judgment from your court and have it recognized
and enforced from a different one where the decision is issued!
o Recognition and enforcement of the judgment
o A good international litigator (and advisor) must have thought about the third step, before deciding
on the 1st and 2nd step!
o Amongst common law countries there is a great amount of mutual trust among common law
judgments (e.g. English courts are very happy to enforce judgments from Singaporean court, India
is very opposed to enforcing non-common law judgments)
e.g. to have a Brugge-judgment recognized in Mumbai will be very difficult and will therefore not be a
good idea
1.2. Sources
- Main source within EU: EU Law (typical regulations, not directives)
o Legal basis: art. 81 TFEU – ‘the EU may adopt legislation on judicial cooperation’
Judicial cooperation includes jurisdiction, applicable law, recognition and enforcement
Art. 81 TFEU: (1) The Union shall develop judicial cooperation in civil matters having cross-border implications,
based on the principle of mutual recognition of judgments... Such cooperation may include the adoption of
measures for the approximation of the laws and regulations of the Member States.
Brussel Ia Regulation (which looks at jurisdiction in civil and commercial matters),
Rome I Regulation (which discusses the applicable law for contracts),
Rome II (which does the same for non-contractual obligations).
Insolvency Regulation (which deals with international restructuring).
e.g;.: I am a Belgian skier and I ski on the slopes of Austria. I am crashed into by a group of drunken Dutch skiers.
The question I will ask myself are: what law applies when I sue those Dutch people? And where do I sue them?
Brussels Ia would deal with the ‘where question’ and Rome II will deal with the question which law applies.
Other regulations (won’t focus on this)
o Brussels IIA Regulation (which deals with parental responsibility and maintenance),
o Rome III Regulation (which deals with divorce applications, both jurisdiction and applicable law),
o Maintenance Regulation,
o Succession Regulation (which deals with the jurisdiction and laws applicable to
international succession)
2
,PRIVATE IL
e.g..: you are a dual national; you die interstate in Flanders. Can you chose for English law to apply to your estate, seeing
as you have British nationality. One of the attractions of English law is that you can disinherit children, whilst under
Belgian law this is almost impossible. The EU succession Regulation allows you, as a dual national, to apply English
law to your estate (even after Brexit). If you are Danish then you can do the same apply Danish law to your estate.
This is very attractive. Why not set up a Lichtenstein trust to shield inheritance from Belgian inheritance taxes, while
you’re at it?
CJEU has a massive role to play in -> see case law
o Also interesting: Look beyond CJEU case into the national litigation (curia website – also contains
summary of the preliminary review of national courts itself in all EU languages)
Prof encourages to do this to read more into the arguments of the parties
o Read some national judgments to get flavour on issues they talk about
- Residual PIL = the national rules which haven’t been harmonized by EU-law
o Residual space
= when national rules apply for jurisdiction, applicable law and recognition
ex. Wetboek IPR: European law applies in this issue, even if it doesn’t apply => recognition of the
scope of Rome (we will apply it even if the issue doesn’t fall within the scope)
- Hague Conference, HCCH (1893):
o 85 members, although not an IO
o Works through adopting conventions
Unequal ratification practice
States can pick and chose which conventions they’ll ratify
o EU is a separate party in this conference: HCCH has thus an influence on EU Law
Sometimes EU will use Hague-model, but sometimes it will have its own approach
(that’s when you have issues)
o When one of the element is non-EU (third country involved) there might be a Hague-instrument
applied to the issue
o If there is no Hague-instrument, and no EU-instrument – there might be bilateral conventions
Typical in family law (Belgium has many conventions with Algeria, Morocco,…)
That is the biggest obstacle – parties itself, and judge get confused in scope of application of
international conventions, bilateral conventions and EU law (often problem in family issues)
o Recent: Hague Judgements Convention (2019) on civil law & commercial litigation
- Lugano convention (UK & EU)
Hierarchy between sources: 2 questions
1. Does EU Law apply? Is this scenario covered by EU-law?
a. Yes? Then you cannot use national law!
b. No? You can use residual private international law
2. If EU law doesn’t apply, does international law apply? e.g. does Hague Convention apply? Or bilateral
convention?
In practice, the hardest part is finding the source that potentially applies
- Lots of research
- Which treaty/convention should be used? Statutory interpretation of EU-law?
3
, PRIVATE IL
1.3. Classic PIL-cases (zie p. 7-11 SV)
Depp v Heard:
- Depp sued tabloid + Heard in the UK, and again in Virginia (US)
- Why twice? = FORUMSHOPPING!
- Almost all jurisdiction apply Gleichlauf when it comes to libel
- First thing when client comes in: qualification in particular category (insolvency/ corporate restructuring
/marriage /cohabitation /contract /tort /…)
- Depp suing both in UK and US is due to LIBEL = QUALIFICATION (tabloid called him wife-beater)
o Why UK?: you will get a straightforward case there!
o “truth-defence” => you as a defendant must defend that what you said is true
Daily mail had to proof that what they had said was true
Heard was merely a witness (was not sued)
o Made England a walhala for libel claimants and for slapp-suites (= suite which you introduce in a
jurisdiction friendly to you for whatever reason, to shut the other one up)
This is a big problem in environmental litigation etc. where big corporations sue them
for libel
Effective strategy: burden of proof + also because England is a “cost-follow-the-event”
jurisdiction where if you loose the claim you pay both your own cost and also the cost of
the other party (unlike US)
o Slapp suites are so broad, and thus many will retract what they said
e.g. if Veto (leuven studentenkrant) writes about US corporation, it can be sued
Fighting those claims is so expensive, and therefore they are often settled => “slapp”
because it scares the defendants, ant they will retract
- In UK Depp lost, because juddge was not convinced – and because he was of the opinion that Depp tried to
switch roles and was harassing Heard
- In US States, they are very defendend of celibrities – as the claimant has to proof that what the defendant says
is untrue (why Virginia = location of the printing presses of Washington post)
o Virginia has very strict anti-slapp laws (which are likely going to put into force in EU, and
England and Wales) therefore slapp-suites will swift to Scotland
- Depp must proof that Heard wrote a column, which is untrue, on him with malicious intent (same with
Beckham, had to proof the malicious intent of the untrue claims made about him)
4
,PRIVATE IL
- Beckham could not sue in England because he was not domicilied there, and the publisher of the tabloid was
in the US
Relevant case that shows you forumshopping (choosing jurisdiction of court for the applicable laws)
e.g. Kate Middleton suing a photographer
- Qualification: invasion of PRIVACY
- Forumshopping: Kate could have sued in England, because she was domiciled there
o Back then a suit due to invasion of privacy didn’t exist (now it is developing)
o A succesfull litigator formulates the claim as to convince the judge to make it easier that they
have jurisdiction or that makes it easier to convince them to apply law xyz
You must look beyond what the client tells you
o Middleton couldn’t sue in England because that suit for privacy didn’t exist
o Therefore she had to sue in France against the French publisher
o The golden rule in EU jurisdiction rule is that you can almost always immediately sue in the home
country of defendant
o France was attractive as French law is protective of privacy, even of celebrities (gleichlauf)
She gets judgment of paparazzo having to handover the photos
BUT: difficult to enforce! – they were already spreading on the internet
- If you want to sue google bc you want private information removed, it will be easy for you to have
European judge to say “yes indeed must be removed”
o Google will say okay and make sure that in EU member states nothing will comes up, but outside EU
it will still be visible
o => enforcing the EU judgment in US, where all big internet giants are located is difficult because the
American judge will say – but we cant have a judgment enforced in the US which goes against a
fundemantel freedom of US (freedom of expression
Les 2: 15/02
Two examples that show forumshopping: why you want to sue in a certain jurisdiction and not in another
=> reason: standing
- France: strict on privacy
- UK: strict on lible
Example: Joseph Weiler
- Weiler edits an online journal, in that journal there is a book review section
- Weiler = American professor, lived in the States, with US and Israeli nationality
o He publishes a review by a German professor, written by a fellow academic who has French
and Israeli nationality
- Book review was very negative, no one had read the book review until the author made a case on it
- Qualification: lible + ??
- She took it to court in France; the only country that does not feature much other than the author has French
nationality (not in US where publisher is located)
- EU law does not apply (bc Weiler not domiciled in EU, but in States)
- Reason for France: procedural reason ( LEX FORII)
o Procedural issues is always subject to lex forii
- As a French she can sue in France
- In France lible is a criminal offence
o All you need to do is file a complaint
5
, PRIVATE IL
o Judge will investigate the case for you – all you need to do is cease the judge and say “I have been
libled” – and formulate your civil claim (only thing you yourself need to do)
- How can I be sued for something that didn’t happen in France at all? Even for a criminal claim?
= PAROCHIAL/EXORBITANT JURISDICTIONAL RULE
= localistic attitude
- French judge held that the case was ridiculous and claimant herself was ordered to pay
Example: Agent Orange
- = A pesticide which US army sprayed on Vietnamese jungle to facilitate US operations in Vietnam
- Devastating impact on Vietnamese environment + the people
- Lady with dual Vietnamese-French nationality sues in France against the producer of Agent Orange
(because you cannot sue an army in a diff state)
Example: Child-abduction
- Both at EU level and Hague conference level there are rules on how such cases must be ruled
- Australian-italian family | Australian held that the jurisdiction of Italian must be respected and therefore
the children must be returned
Example: insolvency law
- Cramdown: applicable in English law – where you can force unwilling creditors to do a haircut, to force them
- Therefore EU corporations used English courts and English restrucering law
= successful way of forum shopping
- Even till this day (after brexit)
Ex.: hema, Nyrstar,…
Divorce tourism
- London = capital of divorce for wealthy couples
- Why England?: procedural – but mostly because of applicable law => England starts of from equal splitting
of assets from both partners, even when the material contributions of one of the partners is smaller than the
other
- English law a long time disregarded prenuptials: the wife will get 50%
whatsoever Bargaining power/outsourcing
- Gigeconomy: business doesn’t employ you, but rather uses your services – you can use our platform
(uber, Deliveroo, Ryanair,…) but you are self-employed
- Employmentcontract: decided by
- Romanian truckdriver convinced the courts that he wasn’t an employee, and not Romanian law but
Belgian law was applicable
- Private international law protects employees and consumers against forced agreements
read all of this in grote SV in depth (pp. 14 – 17)
Example:
- Suing big corporations, in their domestic countries but using law of the global south as that is more attractive
(Nigerians pursuing Shell in the Netherlands, Brazilians pursuing BHP (big AngloAustralian mining giant)
in England, on the basis of a mining disaster that took place in Brazil.)
- These are cases where a lot of the technical aspects of PIL come to live. It is that subject matter that you need
to then ask yourself: “can I pursue Shell of the Netherlands, as a legal representative of a community of
Nigerians, that have had their human rights abused by Shell for 30-40 years? Can I make a case in the
Netherlands? And how do I do this?”. Those kinds of cases are the ones where we can use our PIL
knowledge, our technical knowledge about conflict of laws. Once you master the rules, you will be able to
pursue worthwhile causes, that are not only about money.
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