1. Civil liability for environmental damage – The contribution of Private international law Ius Commune A'Dam November 2012 Geert Van Calster Leuven law, King’s College Law gavc@law.kuleuven.be blog at gavclaw.com

2. Overview of presentation Context: CSR United States: Alien Tort Statute European Union: use of Private international law Conclusion

3. Context: CSR ‘a concept whereby companies integrate social and environmental concerns in their business operations and in their interaction with their stakeholders on a voluntary basis’ (EC 2001) ‘the responsibility of enterprises for their impacts on society.’ (EC 2011)

4. Context: CSR UN Ruggie Report 2010: 'responsibility to protect' Identifies extraterritorial application of national law as key element in operationalizing human rights, labour rights and environmental protection

5. Context: CSR

6. United States: ATS “The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States." 1789, Judiciary Act

7. United States: ATS Twice invoked between 1789 and 1980 Filartiga v. Pena-Irala (1980).United States Second Circuit Court of Appeals (serves Connecticut, New York and Vermont): upheld the claims of the defendants, Paraguayan nationals, that the rights of their family member, as defined by international law, were violated when another Paraguayan tortured and killed him. set a precedent for the use of ATS in cases regarding human rights.

8. United States: ATS Sosa v. Alvarez-Machain (2004): in order to qualify for ATS, a plaintiff must provide significant evidence for the violation of well- defined and universally accepted norms of common international law. 'The judicial power should be exercised on the understanding that the door is still ajar subject to vigilant doorkeeping, and thus open to a narrow class of international norms today'

9. United States: ATS Kiobel v. Royal Dutch Petroleum: 2010 verdict relied heavily on precedents set by international tribunals, including the Nuremberg trials, in relation to corporate liability for violation of international law Judge Jacobs Can corporations face charges under ATS? But also (Rio Tinto 2011, ninth circuit): what is the role of international comity and the relevance of the impact on US foreign policy Can only international law be applied? (Doe I v. Unocal (2002), ninth c) Can ATS jurisdiction be rejected on the basis of forum non conveniens? : Aguinda v. Texaco 2001 (2 nd circuit) USSC: Certiorari in Kiobel: 2012?

10. EU: private international law Three steps of private international law: jurisdiction; applicable law; enforcement (for the latter, see also Ecuador v Chevron) JURISDICTION Suing big corporates in the EU? Easy if domiciled (registered office) in the EU: eg Milieudefensie v Shell (Den Haag, 2012) : Article 2 JR (Jurisdiction Regulation, 'Brussels I', 44/2001) Extension to branches of same (Article 5(5) JR) however only if already domiciled in EU

11. EU: private international law Special jurisdictional rule: Article 5(4) JR. Courts which have jurisdiction in a criminal procedure, also have jurisdiction for the civil leg of the prosecution. Review of the JR – The ‘international dimension’ of the Regulation. Commission proposed both an assets-based rule and a forum necessitatis – however neither have survived EP and Council

12. EU: private international law Applicable law Activists would prefer Gleichlauf: EU jurisdiction applying EU /national law However this is extremely unlikely in CSR cases against actions committed abroad: most likely route to pursue a corporation in a court in the EU, is via an action in tort. This generally, under the Rome II Regulation (864/2007), entails the application of the lex loci damni: the law of the place where the damage occurred: eg in Milieudefensie: Nigerian law

13. EU: private international law If both parties are habitually resident in the same country when the damage occurs, the law of that country applies (Article 4(2) Rome II): that would not be standard Article 4(3) more generally includes an escape clause: when it is clear from the circumstances of the case that it is ‘manifestly’ more closely connected with a country other than the one indicated by 4(1) or 4 (2), the law of that country shall apply instead. 'The' tort has to have that manifestly closer relationship: in particular in the CSR context, this is problematic given the occurrence of the damage abroad. Finally, Article 7 Rome II contains a special rule for environmental damage

14. Conclusion US and EU radically different approach: public international law v private international law 'Comity'

15. Geert Van Calster blog at gavclaw.com