The second stream of the 2024 PAX Moot Court Half-Day Conference focused on business and human rights litigation and private international law. The two presentations in this panel, moderated by Dr Uglješa Grušić from University College London, were given by Dr Jachin Van Doninck from Vrije Universiteit Brussel (VUB) and Dr Eduardo Álvarez Armas from Universidad Pontificia Comillas and Université catholique de Louvain.
Dr Van Doninck gave the first presentation on the topic of “Sustainability and Private International Law”. After referring to some of the most recent developments in this field, such as the adoption of the Corporate Sustainability Due Diligence Directive by the European Parliament on 24 April 2024 (the eve of the PAX Moot Court and two days before the conference), the 2024 Verein KlimaSeniorinnen Schweiz v Switzerland judgment of the European Court of Human Rights and the 2021 Shell judgment of the Hague District Court (currently on appeal), Dr Van Doninck posed the important question of whether and to what extent sustainability can exert a system-building function within the private international law of the European Union. Dr Van Doninck approached this question in a nuanced way. First, he criticised the recent Inkreal judgment of the Court of Justice of the European Union for giving wide scope to party autonomy, with particular reference to the discussion of this judgment by Horatia Muir Watt and Dominique Bureau on the EAPIL blog. Second, he criticised the Thibelojudgment of the Belgian Court of Cassation, in which the court, overturning a decades-old precedent, allowed disputes about the termination of exclusive distribution agreements to be settled by arbitration. Dr Van Doninck concluded by adopting the view that EU private international law should not only promote party autonomy, but also other societal norms and interests. In this respect, he referred in a positive way to the work of US conflicts revolutionaries and argued for a greater application of overriding mandatory rules in EU private international law.
Dr Álvarez Armas followed with his presentation on “Human-Rights-Related Torts in the Private International Law of the European Union”. His presentation had four parts. The first part tackled the characterisation problem, namely the boundary, if any, between human-rights-related torts and environmental torts. The second part presented the current rules in the Brussels I bis Regulation and the Rome II Regulation, and in particular Article 7(2) of Brussels I bis and Article 7 of Rome II. Dr Álvarez Armas lamented the lost opportunity presented by the Corporate Sustainability Due Diligence Directive, while reminding us of the European Parliament’s Committee on Legal Affairs’ proposal to introduce a new Article 6a in Rome II, which would have addressed the law applicable to “business-related human rights claims”. The fourth part presented the Belgian climate change “Farmer Case”, in which Dr Álvarez Armas is personally involved, providing pro-bono legal advice. Overall, Dr Álvarez Armas expressed great support for the use of litigation and private international law as mechanisms for tackling environmental and climate change challenges.
The presentations were followed by a live discussion. Dr Van Doninck defended his sustainability perspective on private international law by expressing the view that labels such as “sustainability”, “business and human rights” or “corporate social sustainability” are less important than the potential to use private international law as a positive regulatory instrument. He also defended the idea that the US conflicts revolution holds lessons for the development of EU private international law. Dr Álvarez Armas was asked whether the adoption of Article 6a in Rome II would have replaced one characterisation problem (namely, the boundary between human-rights-related torts, currently falling under Article 4, and environmental torts, currently falling under Article 7) with a more acute problem of that nature (namely, the boundary between human-rights-related torts, which would have fallen under Article 6a, environmental torts and the special choice-of-law rules for product liability, unfair competition, industrial action, consumer and employment disputes in Rome I and Rome II). Dr Álvarez Armas argued that the focus would have had to be on the legal foundation of the cause of action and that approaching characterisation on this basis would have resolved at least some of the characterisation problems.
