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The Netherlands, A Forum Conveniens for Collective Redress?

On 5 February 2021, the Universities of Amsterdam, Maastricht and Tilburg, in collaboration with the Open University, organized an online seminar on The Netherlands, a forum conveniens for collective redress?

A group of experts in the field addressed both procedural and private international law aspects of collective actions under the Dutch and European frameworks. The first panel of the seminar discussed whether the current private international law instruments need specific rules on collective actions and settlements. Burkhard Hess and Alexia Pato drafted some preliminary statements that sparked interesting discussions. The questions related to standing to sue under the Directive on representative actions (2020/1828), which where discussed in the third panel of the day, will also be published on the EAPIL blog. Finally, a brief account of the whole seminar will be published in the Dutch journal on PIL, NIPR.

 

Panel 1. Statement: The instruments of European private international law (Brussels I, Rome II) are in need of specific rules for collective action and collective settlements. 

AP: The proposed statement for the present panel is that EU instruments on Private International Law need specific rules on collective redress. I believe that this statement is true as far as the Brussels I bis Regulation is concerned.

BH:  First, I would like to thank the organizers of this webinar for the thorough preparation of today’s event. The explanation of the Dutch case law and the small films on the structural issues of jurisdiction, pendency and applicable law are very much appealing. I assume that the audience expects this panel to be a little bit controversial. In this respect, I would like to state that I am less optimistic regarding the enactment of a specific EU instrument on cross-border collective redress. However, we will come back to this issue in the course of our common reflections.

  1. AP: Let us start with Article 4 of Regulation Brussels I bis, the general head for international jurisdiction. One might question whether litigation in the defendant’s domicile should be promoted in all cases. In that sense, it is interesting to note that the Directive on representative actions implements the mutual recognition of representative entities’ standing to sue, so that access to courts of other Member States is facilitated. Coupled with the fact that the Directive leaves Private International Law questions to the Regulations already in force, one cannot help but conclude that litigation in the domicile of the defendant should remain the general rule, according to the European legislator. Nevertheless, that forum might not be always accessible, especially where small-value claims are involved. In consumer law cases, for example, consumer associations have tried to use the alternative forum of Article 7(2) of Regulation Brussels I bis, which opens a forum on the market they are active in. This could be a mere strategic move or the evidence that cross-border litigation is uneasy. Either way, I believe that this question should be further examined.

BH: The basic principle of the Brussels I bis Regime is actor sequitur forum rei. It corresponds to the basic idea that a party should primarily defend against the lawsuit brought against her or him at home. There might be a home advantage, especially when a large enterprise is facing a high value lawsuit and the compensation sought may impact on employment. However, as collective redress usually empowers the plaintiff(s), at first sight there is no (compelling) need to further privilege collective redress with regard to jurisdiction. Article 79(2) GDPR is an example where the EU lawmaker enlarged the grounds of jurisdiction in favour of the plaintiffs. However, I have the impression that this provision shall strengthen the extraterritorial application of EU data protection law vis à vis third state defendants.

  1. AP: Second, even though the Dutch case law on collective actions involving environmental harms recalls that the mandatory nature of Article 4 of Regulation Brussels I bis must be respected, this idea has been challenged before the English courts. In particular, in Vedanta, the UK Supreme Court seemed to admit that an exception to Article 4 of Regulation Brussels I bis is conceivable, when “the claimant has no genuine intention to seek a remedy against the anchor defendant”. Additionally, cases such as Trafigura and Petrobras pose the question whether party autonomy could supplant the application of Article 4 of Regulation Brussels I bis.

BH: This issue seems to me to be more related to Article 8(1) of Regulation Brussels I bis. This provision was generously interpreted when the CJEU in case C-352/13, CDC, permitted actions against co-defendants to move on. In this case, the plaintiff and the anchor defendant had settled the case even before the lawsuits against the co-defendants had been served. However, the CJEU held that a control of abuse might be possible in the realm of Article 8(1) of Regulation Brussels I bis.

  1. AP: In cases such as Milieudefensie v. Shell, the Dutch courts had to assess whether jurisdiction could be asserted over the foreign subsidiary of a Dutch mother company, based on Article 7 of the Dutch Code of Civil Procedure, which corresponds to Article 8(1) of Regulation Brussels I bis at the EU level. This kind of scenario obliges us to determine whether jurisdiction should be exercised when the dispute involves foreign plaintiffs, a foreign co-defendant, a foreign harm, and the application of a foreign law. The tension between access to justice and the private international law principles, according to which jurisdiction is allocated where some relevant connecting factors link the court to the dispute is particularly visible in those kinds of cases. Having a look at the case law of other jurisdictions, such as the US, one observes that the tendency is to restrict the assertion of jurisdiction in foreign-cubed cases. In all cases, a redefinition of our policy objectives (e.g. avoid the risk of irreconcilable judgments, provide access to justice, etc.) might be necessary in order to better frame what the general rule on the attraction of co-defendants and its exception should be.

BH: Objectively, jurisdiction over co-defendants may amount to an exorbitant head of jurisdiction when the relationship between the main defendant and the co-defendant appears to be superficial and loose. However, when it comes to tortious behaviour, the decision-making in the board of a mother company related to the foreign subsidiary may amount to tortious conduct. Yet, these are facts easy to assert but very difficult to prove. In the context of Article 7(2) of Regulation Brussels I bis, the CJEU has been very reluctant with regard to co-perpetrators (cf. case C-228/11, Melzer).

  1. AP: As regards the WCAM procedure, asserting international jurisdiction to declare collective settlement agreements binding has been controversial as well. In Shell and Converium, the Amsterdam Court of Appeal considered that the victims located in the Netherlands were the defendants and declared that it had jurisdiction according to Article 4 of Regulation Brussels I bis. Victims domiciled in other EU Member States were included within the collective settlement thanks to Article 8(1) of Regulation Brussels I bis. This means that the presence of one shareholder in the Netherlands allocates jurisdiction to Dutch courts. Of course, this has to be mitigated by the fact that both petitioners freely chose to submit to the jurisdictional power of those courts. However, would that situation be sustainable if all Member States had a WCAM mechanism and hence, the ability to declare EU-wide settlements binding? Put differently, the question is whether Private International Laws rules on jurisdiction should adapt (and if so, how?) or remain unchanged.

BH: The problem related to WCAM relates to the applicability of the Brussels I bis Regulation: Does the “homologation” of an out of court settlement really amount to a dispute litigated in courts? (here, I would like to add that the same concerns relate to schemes of arrangement). Just to put it differently: Are non-contentious proceedings in the material scope of the jurisdictional regime of Brussels I bis? The difficulties start with the determination of the role of the parties: who is the plaintiff, who is the defendant? To my opinion, jurisdiction in these cases should be based on articles 25 or 26 in case one agrees that the Brussels I bis Regulation applies to this constellation.

  1. AP: As regards the application of the special and protective fora of Regulation Brussels I bis, it is commonly acknowledged that collective redress actions, which protect a general interest, such as the environment or the market as a whole, may be brought in the place where the damage occurred, as case C-167/00, Henkel, shows. When the collective redress action bundles many individual claims, the centralisation of those claims in a place other than the defendant’s domicile is trickier. As the CJEU ruled in C- 498/16, Schrems, multiple claims cannot be bundled in the forum of one consumer’s habitual residence (section IV of the Regulation Brussels Ibis). Even though such a result is bad news for access to justice, I believe that the current text of the Regulation would not have allowed the CJEU to come up with another solution. The centralisation of claims at the place where the damage occurred is difficult as well, as Article 7(2) of the Regulation Brussels I bis allocates not only international but also territorial jurisdiction, and the place of the damage will hardly ever be exactly the same for all victims. In the case C-709/19, VEB, the AG seems to open the door to the centralisation of claims for victims who are located within the same Member State. He says (I quote) ‘the problems of territorial fragmentation arising from a strict application of Article 7(2) Brussels I bis could be solved by arguments in support of a specialised court in a particular local jurisdiction’. However, I doubt that Article 7(2) of Regulation Brussels I bis actually allows domestic procedural law to modify the venue designated by the Regulation.

BH.: As far as consumer claims are concerned, Articles 16 and 17 of Regulation Brussels I bis only apply to contractual claims – but this may be the case when private shareholders sue the company. In his Opinion on case C-498/16 AG Bobek clearly and correctly stated that the introduction of a new head of jurisdiction for consumer collective claims is a matter for the EU lawmaker, the argument has been taken up by AG Campos Sánchez-Bordona in case C-709/19, VEB.

According to the case law of the CJEU as it stands today, the application of Article 7(2) requires more than a pure pecuniary loss to fix the locus damni. In this regard, the Opinion in case C-709/19, VEB, clearly (and correctly) indicate that neither the location of an investment account, nor the status as consumers of some of the investors establish a sufficient connection with the Netherlands. In the case of a declaratory action, followed by (individual) actions for damages, the place of the damage is difficult to assess when there is no clear indication of the place of the damage in the first phase of the proceedings.

On the other hand, I do not see a problem in setting up a specialised court in a Member State having particular jurisdiction for a specific type of claims. In case C-400/13, Huber and Sander, the CJEU has already decided that the concentration of venue in one court by the MS is not excluded by the specific heads of jurisdiction of the Maintenance Regulation which equally address both: international jurisdiction and venue. A good example could be follow-on actions related to cartel law violations; let’s see what is decided in the pending case C-30/20, Volvo.

  1. AP: My last point concerns parallel litigation. The emergence of multiple proceedings in several states may give rise to potential ‘overlaps’ between actions. Those overlaps represent a waste of judicial resources and may generate inconsistent judgments, as well as overcompensation. At the same time, we have to accept that parallel litigation is a by-product of our jurisdictional system, which provides for alternative fora. To some degree, parallel litigation will therefore take place. Within the Brussels regime, the lis pendens rule of Article 29 of the Regulation Brussels Ibis should hardly ever apply in collective redress cases as the formal (or even material) identity of parties in parallel proceedings will usually not be met. As for Article 30 of the Regulation, on related actions, this provision could theoretically apply to parallel proceedings in collective actions. However, potential delays in the resolution of the dispute and possible disparities between the claims will more often than not militate against the stay of proceedings. Both the Steinhoff and Libor cases illustrate the difficulties that parallel ligation generates.

In all cases, a clear-cut rule on stay of proceedings does not seem to be an option, as collective redress mechanisms vary from state to state. As regards the difficulty to determine which court is seised first, one could imagine implementing a communication channel between courts in the manner of Article 29(2) of Regulation Brussels I bis or setting up an EU-wide register of collective redress actions, as the Commission’s Recommendations of 2013 suggest. These proposals are no panacea, but they might nevertheless bring more clarity to this complex legal landscape.

BH: As long as collective actions are based on opt in, the problems of pendency and relatedness are manageable. The moment, a person opts in a collective lawsuit should be the moment of pendency for this person as he or she becomes by registration a party to the (collective) proceedings. I am happy to see that the new Directive on Collective Redress for Consumers is based on the basic idea that in cross-border settings only opt in is possible, see Article 9(3) of Directive (EU) 2020/1828. However, the Directive addresses problems of cross-border litigation rather randomly and Article 3(7) provides for a strange definition of a cross-border representative action, whereby a cross-border situation is present ‘where a qualified entity in another EU Member State brings an action in another EU Member State than that in which the qualified entity was designated.’ This definition is not in line with the concept of the Brussels regime and demonstrates that the Directive primarily provides for the mutual (but limited) recognition of the standing of qualified entities in the courts of other EU Member States. I addressed these issues in my book on Europäisches Zivilprozessrecht (2nd ed., 2021) ch. 11, at paras 11.78 -11.87.

However, the Directive only intends to achieve procedural minimum harmonisation. Consequently, Member States may go further and expand collective redress mechanisms based on opt out also to cross-border settings. In these constellations only Article 30 of Regulation Brussels I bis applies to parallel proceedings. As Alexia has explained, this provision is based on judicial discretion and, therefore, is not suited to effectively coordinate overlapping opt out proceedings pending in several EU Member States. An additional weakness is that this provision only permits the first proceedings to move forward – this might not be an optimal solution in the case of competing, overlapping collective actions.

When it comes to the certification of the class, Article 32 of the Brussels I bis Regulation is difficult to apply. This is well explained in the video of Ianika Tzankova. To my opinion, the decisive moment should be either the filing of the lawsuit or the filing of the application to permit the collective case to proceed. This flexibility corresponds to the aims of Article 32 of Regulation Brussels I bis.

  1. AP: To conclude, the application of Private International rules on jurisdiction to collective redress cases is uneasy and forces us to reconsider what kind of policy objectives should be promoted. On the one hand, we could encourage litigation at the defendant’s domicile, which would limit parallel litigation to a certain extent. However, we would probably have to think about creating extra-incentives for representative entities to be able to reach that forum. We would also have to think about potential exceptions to the application of this general rule in light of the case-law involving environmental matters. On the other hand, if a closer forum is to be offered and promoted, access to justice would be fostered, but parallel litigation would probably increase, and more coordination measures would be required. In all cases, recent mass harm situations have stretched the interpretative limits of the Brussels I bis provisions and we have been forced to create extravagant interpretations, so that the system could hold. I believe that now is a good time for a change and I support the enactment of a truly appropriate regulatory regime for cross-border collective redress.

BH: Should the EU lawmaker intervene? To my opinion, this would be a considerable political challenge, as there is currently a clear competition among Member States either to promote their judicial systems to attract collective litigation (as in the Netherlands) or to protect their industries from collective redress (as it is still the case in Germany). Against this background, the chances of a binding EU instrument on the coordination of the different cross-border collective redress instruments in the EU Member States appear to be limited. Member States might strongly oppose to such a zealous project. They already did it when the Recast of the Brussels I Regulation was negotiated.

When enacting Directive 2020/1828, the EU lawmaker intentionally avoided to set a clear framework for the different instruments on collective litigation in the Member States (cf. Article 1(2)). The Directive only requires that Member States provide for an instrument of collective redress corresponding to the main features of the Directive. However, it is worth noting that most of the mandatory provisions of the Directive apply to cross-border settings and require an opting in. Nevertheless, it remains to be seen whether the CJEU will interpret the Regulation Brussels I bis and the Directive in a systematic way. This might finally entail that only opt in instruments will be included into the Brussels regime.

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