Hess & Mantovani: Current Developments in Forum Access: Comments on Jurisdiction and Forum Non Conveniens – European Perspectives on Human Rights Litigation

Burkhard Hess (Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law) & Martina Mantovani (Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law) have posted Current Developments in Forum Access: Comments on Jurisdiction and Forum Non Conveniens – European Perspectives on Human Rights Litigation (in The Continuing Relevance of Private International Law and Its Challenges, F. Ferrari & D. Fernandez Arroyo eds., forthcoming). Here's the abstract:

Against the backdrop of the renewed discussion on universal civil jurisdiction, sparked by the Naït Liman judgment of the European Court of Human Rights, this paper provides an overview of the approaches adopted by national courts in Europe vis-à-vis the assessment of international jurisdiction in human rights and public interest litigation concerning mass torts occurred outside the territory of European States.

The private international law doctrine of the forum of necessity is assessed in the first part of the paper. Subjected, in the domestic case law, to very narrow interpretations of its triggering elements – the impossibility of bringing proceedings elsewhere and the sufficient connection with the forum state – this doctrine appears nowadays as a toothless instrument in the quest for justice by victims of extraterritorial harm.

The second part of the paper looks into alternative procedural strategies, all based on the hard-and-fast logic of the Brussels I bis Regulation, that foreign plaintiffs may implement in order to bring their case in Europe. In addition to the more established practice of joining the claims against a parent company and a foreign subsidiary before the courts of the former’s domicile, the paper gives account of other claims recently brought against a EU-domiciled defendant on the basis of unprecedented legal grounds, i.e property law (the Song Mao case in the UK), the notion of “supply chain liability” (the Kik case in Germany) or new forms responsibility liked to the proportional contribution to a worldwide damage (the RWE case in Germany).

The paper concludes that even though jurisdiction might not be a main impediment when the EU domiciled respondent is the only defendant, victims of human rights abuses may still not succeed due to other procedural hurdles, derailing a judgment on the merits, or owing to the unsatisfactory state of development of the applicable substantive law.