Inernational Private Law Question

tsr, i really need your help!

having studied law at undergraduate and postgraduate level i have not once had to learn anything about international private law. problem: i have a job interview tomorrow afternoon where i have to do a presentation involving an aspect of ipl.

the scenario basically involves advising a uk based client whose competitor is transporting waste from norwegian oil rigs to 10 approx 10 miles off the coast of scotland, where it is then transferred onto another boat which sales to the netherlands where the waste is disposed of by a subsidiary of the competitor in landfill.

there is an eu directive which compels member states to prevent this type of waste from being disposed of in landfill.

my question is - what does my client do about this??

apologies for my ignorance, and thanks in advance for any help!

Reply 1

natcho

thanks for the reply :smile:

as far as i know it's definitely not the concern of the nowegians as nothing illegal is happening there. the illicit activity is being carried out in the Netherlands by a subsidiary of a British company.

the question is to whom does one complain.

Reply 2

Norton1

Original post by natcho

thanks for the reply :smile:

I realised Norway wasn't in the EU seconds after posting it... which is why I deleted it. Then you caught me.

So the answer is to sue the Dutch authorities? No? What am I missing? They have a duty to stop this happening.

Reply 3

nulli tertius

Original post by natcho

Let us start at the beginning.

The first question is whether the Dutch have properly transposed the Directive into Dutch law. If they haven't then what has happened is not a breach of Dutch law and the Dutch authorities aren't going to be interested in this.

The primary remedy for failure to properly transpose a directive is a complaint to the Commission who may bring enforcement action against the Netherlands. That clearly should be done but that is a long, slow process and unlikely to be of much immediate benefit to the client.

Sometimes, there is a civil right of action against an offending state in its own courts for damages for failure to transpose. The Factortame litigation was an example of this. However, not all breaches and not all claimants will ground a right of action. In Factortame, the claimants had been deprived of the right EU law gave them. Here, the client has no EU law right. It is merely trying to stop someone else obtaining a competitive advantage through that party's breach of EU law. An action in the Dutch courts (with no doubt a reference to Luxembourg) against the Dutch government looks an equally long, slow, and in this case, expensive process.

If the Dutch have transposed the EU directive into Dutch law, then the simplest and best route would be to engage Dutch lawyers to make a complaint to whatever enforcement agency exists for this legislation in the Netherlands. If they are willing to take action, then problem solved for the future. Obviously that won't give any damages for past breaches, but you can't have everything. If the Dutch won't enforce their own law, then the choice is between whatever remedy the Dutch state gives against public officials who will not carry out public obligations or looking for another way forward.

There are several possibilities.

Does Norwegian law give a domestic remedy against export of waste for dumping in breach of the recipient's law? That only helps if the Dutch have transposed the Directive. Is this Directive one that has been transposed into Norwegian law as a part of its obligations under the EEA? If so, has there been a breach of the Directive in Norway? In other words is there a breach in the originating state as well as the state of deposit? These are clearly matters of Norwegian law on which a Norwegian lawyer will need to advise.

Finally, there is the question of the position in Scots law. The transfer of waste took place in UK territorial waters withn the Scots jurisdiction. Have the UK government transposed the Directive? If so, is the transfer of waste with the intention that it be deposited in another country, a breach of it? It will depend on the wording, but my gut feeling is "no". A more promising line of enquiry may be whether the transfer in UK territorial waters is a breach of Scottish domestic environental laws? Have the correct permits been obtained regardless of the EU issue? Presumably, if there has been a breach of either, enforcement will be a matter for the Scottish Environmental Protection Agency with the threat of judicial review in the Court of Session if they are unwilling to act. Scottish legal advice will be needed.

Reply 4

jjarvis

Original post by natcho

NT's advice is sound.

I'm a bit surprised that you think this is about private international law, though. Were you told this dispute concerns private international law? This dispute deals with EU/public law and horizontal application of directives. There's not a cause of action in contract (no contractual relation between the competitors), and probably not a cause of action in tort/delict/quasi-delict either (unless you can bring a claim under the unlawful means tort--which seems a bit tangential).

Bringing a civil claim requires a cause of action, before you can even think about whether you can sue in the UK (unlikely--the only harm suffered is financial harm, and the wrong wasn't committed in the UK), the Netherlands (possibly--a claim against the subsidiary if it acted illegally, and it *may* be possible to add the parent company under article 6 BIR, depending on the applicable company law), or Norway. (While Norway isn't a member of the EU, it's a party to the Lugano Convention, whose terms are more or less identical to the Brussels I Regulation, so for the purpose of jurisdiction and enforcement the fact that it's not an EU member won't matter.)

But as I said, you'd need to establish some sort of civil cause of action first. You'd need to establish that the waste disposal was an actionable civil wrong and that it interfered with third parties' ability to deal with the claimant. You'd also need to establish the instrumentality of the means in causing loss. All of these look too removed to actually ground a claim, so the issues of jurisdiction/applicable law simply don't arise.

Inernational Private Law Question

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