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Christelle Chalas and Richard Fentiman

Owusu v. Jackson, usually referred to simply as the ‘Owusu case’, is a 2005 ECJ judgment on a reference for a preliminary ruling from the English Court of Appeal on the interpretation of the 1968 Brussels Convention. It contains two important principles that did much to alienate English common lawyers in their uneasy relationship with the common judicial area. Firstly, it considered judicial discretion inherent in the English doctrine of forum non conveniens to be inconsistent with the Convention. Under the second principle, it ruled that the Convention was applicable whenever the defendant is domiciled within a Contracting State, wherever the facts may have taken place or the claimant domiciled. Thus, the Brussels Convention precluded the courts of Contracting States from declining the jurisdiction conferred on it by Article 2 of that Convention on the ground that a court of a non-Contracting State would be a more appropriate forum for the trial of the action. This applied even if the jurisdiction of no other Contracting State was in issue and the proceeding had no connecting factors to any other Contracting State. Mr. Owusu, who was a British national domiciled in the United Kingdom, suffered a very serious accident during a holiday in Jamaica. As he dived into the sea from a beach accessed from a private villa, he struck his head against a submerged sand bank and hurt his fifth cervical vertebra, which rendered him tetraplegic.

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Paul Schiff Berman and Jennifer Daskal

Electronic data – everything from e-mails and text messages to Facebook and Instagram posts to Twitter pronouncements to drone warfare data to search algorithms to financial transactions to cloud data storage – travels around the globe with little relationship to physical territory. In addition, all of this data is often in the custody and control of data intermediaries such as Google, Facebook, Twitter, Apple, Microsoft, Amazon, private military contractors, and so on. This has given rise to a cascade of novel legal questions about the appropriate reach of domestic and private international law over issues such as extraterritorially stored data, speech and privacy rights or the emerging right to be forgotten. Three important consequences flow from this ubiquitous technology-enabled, data-driven global societal activity. First, the territorial allocation of data becomes increasingly arbitrary and substantively unimportant. If I, as a United States citizen based in Maryland, have a Gmail account, and Google, a US corporation, decides to store my archived e-mails in Ireland or France or Indonesia (or indeed to split up the data fragments that make up each e-mail message among data warehouses in all three countries), that decision seems irrelevant to any question of whether I have somehow affiliated myself with any of those communities or governments for purposes of jurisdictional or choice-of-law analysis. Second, because of this deterritorialisation of data, territorially based courts (or law enforcement authorities generally) will sometimes be less able to enforce their decisions because those decisions require cooperation from relevant actors in far-flung communities.

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Filipe Antunes Madeira da Silva, Fabio Costa Morosini and Michelle Sanchez Badin

The question raised by The Economist, ‘whose oil in Brazil?’ shows up Petrobras, a State-controlled Brazilian oil company, to be involved in the regulation of regimes of oil exploitation in Brazil and beyond, including a crucial role in the distribution of the benefits of oil for development. Interestingly, its mestizo identity defines part of its projects and redistributive interventions. Implicated in a series of high-profile corruption scandals and investment disputes, its trajectory can be traced across different scales and processes, varied actors and complex interests. From a private international law viewpoint, exploring the distributive effects of international adjudication in projects of development based on the exploitation of natural resources might contribute to a more comprehensive view of the role of private law mechanisms, as well as of their interactions with the public ones, in regulating the global economy and distributing resources within it. Along those lines, investigation on the distributive effect of decisions on jurisdiction for the production of scales and boundaries for capital offers a promising path for furthering a discussion on mestizo strategies in reversing hierarchies and redistributing power in a capitalist world-system. The first analysis explores this path. But it is also intriguing that in the context of investment disputes with Bolivia, Petrobras preferred to resort to diplomatic negotiations as opposed to legally enforceable remedies. Petrobras, as a major economic group, has systematically made its investments under the protection of traditional legal instruments, which allowed it to benefit from contractual remedies and bilateral investment treaties.

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Hannah Buxbaum and Jean d’Aspremont

This is yet another case where the US Supreme Court was called upon to determine the reach of a federal statute. It held, on the one hand, that ‘the Racketeer Influenced and Corrupt Organizations Act’ (RICO) could be applied to conduct that occurs outside the United States. According to the Court, Congress intended certain provisions of RICO, such as §§1962 (b) and (c), to apply extraterritorially. This was significant, as it involved the rebuttal of the presumption against extraterritoriality in respect of those provisions. On the other hand, it also ruled that §1964(c), which provides for a private action, must prove an injury within the United States. It was, therefore, a bitter-sweet victory for the claimant, the European Community, who had brought a claim under §1964(c). As it alleged only foreign injuries, it failed to meet the test under this provision. The European Community and 26 of its Member States brought an action against RJR Nabisco and its related entities (‘Nabisco’), alleging that Nabisco participated in a global money laundering scheme in association with various organised crime groups, which violated RICO. This Act prohibits certain activities of organised crime groups, including the investing income derived from racketeering activities in an enterprise involved in interstate and foreign commerce; acquiring or maintaining an interest in an enterprise, and conducting affairs through a pattern of racketeering activity; and conspiring to violate any of these prohibitions.

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Franck Latty

The tragic deaths of hundreds of construction workers (allegedly) in the course of intensive building work of the stadiums for FIFA’s 2022 Qatar World Cup are no doubt an inauspicious starting point for the analysis of the new spaces of normative interaction that are now generally considered to be a feature of the global legal order. The latter offers a complex body of different transnational rules that coexist and conflict, beyond the remit of nation-States – whose collective ‘loss of control’ is by no means accidental or inevitable. The global labour market is perhaps the best example of a new paradigm of non-state (if not private) normativity. While domestic markets become increasingly flexible – take the new trend of zero-hour contracts practised by companies like Uber or Deliveroo – a new arena emerges in which multinational corporations control various industries all over the globe in accordance with their own corporate codes and soft law. In 2010, the Gulf State of Qatar won the bid to host the 2022 World Cup. Following this, Qatar started carrying out multi-billion construction projects for numerous rail lines, roads, a new international airport, the world’s largest green-field project and, of course, several stadiums that will host the World Cup matches. Qatar relies largely on migrant workers from South Asia (India, Sri Lanka, Nepal or Bangladesh) who according to some estimates comprise more than 90% of the country’s workforce. They are employed under the controversial kafala system, that puts employees under near total control of their employers.

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Diego P. Fernández Arroyo and Laura Carballo Piñeiro

Arguably, no legal controversy in the history of private international law has generated as many and as complex conundra as Chevron. More significantly, few other cases have shown as clearly the links between economic globalisation and the litany of contemporary disasters linked to disregard for the state of the planet and the livelihood of its poorest inhabitants. In this respect, the various lawsuits draw attention to the exhaustion of natural resources, widespread environmental destruction, and the plight of local populations. The case also illustrates the structural incapacity, the functional inaptitude, or perhaps the political unwillingness of private international law tools to provide a solution to this kind of dispute. Furthermore, it displays the artifice behind corporate architecture and the risk of global stalemate inherent in the iterative recourse to both domestic and international jurisdictions. The heart of the dispute is ecological harm allegedly caused by the exploitation of an oil-rich area called Lago Agrio in the province of Sucumb'os, Eastern Ecuador. The immediate damage includes water pollution, soil contamination and deforestation and, subsequently, illness suffered by the local population. The Lago Agrio villagers and forest-dwellers filed a first set of lawsuits against the American-based company Texaco Petroleum (TexPet) before the US federal courts. TexPet was part of the oil-production consortium in Ecuador along with the State-owned oil company (Petroecuador) from 1964 to 1992. At the end of this venture, Petroecuador signed an agreement releasing TexPet from environmental liability.

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Jacco Bomhoff, Agatha Brandão de Oliveira and Lucia Bíziková

This first case expresses a post-war yearning for deparochialisation. At stake was the legal effect of a forum-selection clause in an international maritime contract. Decided by the United States Supreme Court in 1972, it marks the beginning of a process of liberalisation of contractual choice of forum, that would extend progressively from adjudication to arbitration. One might say that the siren of free trade lures international jurisdiction into the nets of party autonomy. The dispute arises from a towage contract between an American corporation (Zapata) and a German corporation (Unterweser), in which the main obligation was to move an oil rig from Louisiana to the Adriatic Sea. The contract contained the following forum-selection clause: ‘Any dispute arising must be treated before the London Court of Justice.’ Unterweser’s deep-sea tug Bremen departed Louisiana on 5 January 1968, however, during transportation a severe storm arose while the Bremen was in international waters. The rig was damaged and was towed to Tampa, Florida, the nearest port of refuge. Despite the contractual provisions, on 12 January, Zapata commenced a suit in admiralty in the United States District Court at Tampa, seeking damages against Unterweser in personam and the Bremen in rem, alleging negligent towage and breach of contract. Unterweser invoked the forum clause and moved to dismiss for lack of jurisdiction or on forum non conveniens grounds. Alternatively, the German corporation requested to stay the action pending submission of the dispute to the London Court of Justice.

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Sabine Corneloup and Jinske Verhellen

Kamasaee v. Commonwealth & Ors, also known as the Manus Island class action, is the largest settlement in the field of human rights in Australian legal history. The settlement marks a potentially important step for the recognition and application of migrants’ rights in the present context, where States go out of their way to avoid responsibilities towards refugees and asylum seekers. It arose out of the allegations of false imprisonments of refugees held at the Manus Island Regional Processing Centre between 21 November 2012 and 12 May 2016. The decision of the Supreme Court of Victoria to approve the settlement for compensation reached between the plaintiffs and the Australian Government in June 2017 came more than a year after the Supreme Court of Papua New Guinea had ruled that the centre was illegal and unconstitutional. In December 2014, Majid Karami Kamasaee, an Iranian refugee, brought an action against the Commonwealth of Australia and two other defendants for the failure to take reasonable care of people held at Manus Island Regional Processing Centre. He claimed damages for himself and almost 2,000 asylum seekers for the consequences arising out of their transfer from Australia and subsequent confinement in the centre located in the Los Negros Island in Papua New Guinea. According to Mr Kamasaee’s claim, the asylum seekers detained in the centre suffered physical and psychological injuries as a result of the Government’s negligence. Later on, a second claim for false imprisonment was also added.

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Kellen Trilha and Dagmar Coester-Waltjen

In a complex world with interjurisdictional mobility, surrogate motherhood and assisted reproductive technologies, what is parenthood? Two recent judgments by the European Court of Human Rights (ECtHR) demonstrate that it is possible to consider parenthood as a concept ‘under construction’; that the balance of interests at stake is proven a challenging task for courts. In Mennesson v. France, a married French couple engaged in an international surrogacy agreement with a woman from California in the United States; where such agreements are recognised by law. The embryos were formed from a donated egg and sperm from Mr. Mennesson. Following an in vitro fertilisation procedure, the surrogate became pregnant with twins. A Californian court had issued an order declaring that the Mennessons shall be recognized as the genetic father and legal mother once the children were born. The Californian birth certificate mentioned the couple as the mother, respectively the father, without any reference to the surrogate mother. Upon returning to France, French authorities refused to grant legal recognition to the parent-child relationship that had been legally established in the United States. The refusal of a French birth certificate was made on the grounds of public policy since surrogacy arrangements are not recognised by French law (vid. Cour de Cassation, 6 April 2011,n. 10-19.053). How compatible is this decision with the right to respect for private and family life, as articulated in Article 8 of the European Convention on Human Rights (ECHR)? The case resultantly went before the ECtHR.

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Edited by Horatia Muir Watt, Lucia Bíziková, Agatha Brandão de Oliveira and Diego P. Fernandez Arroyo