The author of this post is Eduardo Álvarez-Armas, Brunel University London and Université Catholique de Louvain.
As announced in this blog, Anne Peters, Sabine Gless, Chris Thomale, and Marc-Philippe Weller have recently published an interesting and topical paper entitled Business and Human Rights: Making the Legally Binding Instrument Work in Public, Private and Criminal Law.
The paper, a must-read for anyone interested in the Business & Human Rights field, is an enlightening assessment of several issues and recent developments in the area, and very valuable in its transversal approach to its themes, from the standpoint of several different branches of law.
However, the point the paper makes on the determination of the law applicable to torts arising from human rights violations before EU Member-State courts is open for discussion.
In this respect, the position sustained in the paper basically interprets Articles 4(1) and (3) of the Rome II Regulation in a manner that “replicates”, in respect of torts stemming out of a violation of human rights, what has been legislatively enacted in respect of environmental torts in Article 7 of the same Regulation: the enshrinement of the theory of ubiquity (with differences/different rationale with respect to Article 7(2) of the Brussels I bis Regulation, but still the theory of ubiquity, nevertheless), assorted with victim’s choice.
The following are some difficulties encountered by the said interpretative proposal.
The effet utile of Article 7
If Articles 4(1) and (3) could be interpreted the way suggested in the paper, what would be the effet utile of Article 7 then? Surely, the arguments put forward in respect of the interpretation of Articles 4(1) and (3) as regards human-rights violations also cover environmental torts, and therefore, there would have been no need to enact Article 7 to begin with (a provision which was very controversial during the Rome II legislative process).
The structure of Article 4 Rome II
As Article 4(3) is an escape clause, Articles 4(1) and (3) are not placed in an alternative/elective position, but are exclusive from each other. If Article 4(3) applies, then Article 4(1) does not (see notably Recital 18 of the Rome II Regulation). Human-rights-violation victims may try to plead Article 4(3) (a closer connection to another legal system) as a “getaway” from Article 4(1) if they believe that their circumstances allow them to do so. However, they cannot plead that they have a choice as such in choice-of-law terms between Articles 4(1) and (3). Having a free choice of applicable law in one´s hands (as environmental victims do in Article 7) is not the same as having to contend and prove a manifestly closer connection, as Article 4(3) would require.
The points put forward on legal arbitrage and race to the bottom in Prof. Weller’s blog reply to my first brief comment are sensible, and they sustain conceiving human-rights violations in supply chains as “complex torts” (“délits complexes”, “distantdeliktze”) where the action/omission takes place in the parent company’s headquarters and the result materializes in the “host country”. Therefore, as suggested, they may potentially sustain attempting to resort to Article 4(3) to plead for the closer connection to the law of the headquarters of the parent company (provided that evidence allows for it), but they do not seem to sustain an “ubiquity + choice by the victim” construction.
Indeed, I largely share Prof. Weller’s arguments on legal arbitrage and race to the bottom in respect of environmental torts (as a preview of an English monograph coming in 2021 in Hart’s Studies in Private International Law, see E. Álvarez Armas, “Contentieux du droit international privé pour responsabilité environnementale devant le juge européen : la détermination du droit applicable comme outil de gouvernance globale environnementale”, Annales de Droit de Louvain, Vol. 77-1/2017, pp. 63-87; and E. Álvarez Armas, “Daños al medioambiente y Derecho Internacional Privado Europeo: ¿Quid de la determinación de la ley aplicable como herramienta de gobernanza global medioambiental?”, Anuario Español de Derecho Internacional Privado, t. XVIII/2018, pp. 193–225). However, the core difference is that Art. 7, as it stands nowadays, structurally allows for these ideas, while Articles 4(1) and (3) do not.
The ratio legis of Article 4 Rome II
If the rationale of Article 4 of the Rome II Regulation was the protection of victims, then, as Articles 4(1) and (3) are general provisions, nothing would hinder any other victim of torts not specifically covered by “special” provisions(Articles 5 and following) from benefiting from the same construction. This would significantly hinder the foreseeability of the applicable law.
However, the policy rationale of Article 4, as the main provision in the Regulation, is not the protection of victims, but “a reasonable balance between the interests of the person claimed to be liable and the person who has sustained damage” and “the foreseeability of court decisions”, as explained by Recital 16 of the Rome II Regulation. More specifically:
[a] connection with the country where the direct damage occurred (lex loci damni) strikes a fair balance between the interests of the person claimed to be liable and the person sustaining the damage, and also reflects the modern approach to civil liability and the development of systems of strict liability.
These ideas can be tracked back to the explanatory memorandum to the Rome II Proposal, where the EU Commission repeatedly refers to “foreseeability” and “certainty” in the determination of the applicable law, explicitly rejects the theory of ubiquity as a potential general solution to be enshrined in the Regulation’s main rule (p. 11 – penultimate paragraph) and concludes (pp. 11-12) that
[t]he rule also reflects the need to strike a reasonable balance between the various interests at stake. The Commission has not adopted the principle of favouring the victim as a basic rule, which would give the victim the option of choosing the law most favourable to him. It considers that this solution would go beyond the victim’s legitimate expectations and would reintroduce uncertainty in the law, contrary to the general objective of the proposed Regulation. The solution in Article  is therefore a compromise between the two extreme solutions of applying the law of the place where the event giving rise to the damage occurs and giving the victim the option.
Precisely, as an exception, the explicit ratio legis of Article 7 Rome II (per Recital 25) is not to protect, but even to favour the victim (favor laesi) by allowing her the prerogative of choosing the applicable law.
Overall, the arguments put forward in the paper may sustain de lege ferenda that an Art. 7 bis be added to Rome II, enshrining the theory of ubiquity and victim’s choice in respect of torts arising from the violation of human rights. However, the current text of the Regulation does not seem to comfort the paper´s interpretative proposal.