Professor Burkhard Hess (Director MPI Luxembourg)

Chair: Professor Séverine Menétrey (Université du Luxembourg)

Speakers:

• Dr. Etienne Farnoux (Sorbonne School of Law): Towards the jurisdictional protection of the alleged victim in cross-border torts?
• Dr. Lucilla Galanti (University of Bologna): CJEU case law and forum connexitatis: how to improve the close connection criterion?

Dr. Etienne Farnoux explored whether the actor sequitur forum rei principle is still appropriate in a system where several alternative grounds of jurisdiction are offered to the plaintiff in case of a close connection, such as the forum delicti. Considering the weaknesses of the forum delicti, he submitted that it often leads to a forum actoris and proposed to acknowledge this shift by replacing the forum delicti by a "forum victimae".

Dr. Lucilla Galanti delved deeper into the notion of forum connexitatis, mapping the conditions under which Art 8(1) Brussels I^bis Regulation would justify the consolidation of connected claims in a single jurisdiction. Apart from the requirement that a 'same situation of law and fact' should exist, a clear definition is missing. Against this background, she assessed the case law of the CJEU in detail and found that the Court's approach has changed from a formalistic to a 'substantial' approach. With this in mind, she explored whether Art 8(1) would still apply when several claims are brought with the sole object of abusing the forum connexitatis, whether the existence of a 'real' claim is necessary and who should carry the burden of proof.

The video of this first panel can be found at https://www.youtube.com/watch?v=Db0sQg6oK3Y.

Chair: Michal Bobek (Advocate General, CJEU)

Speakers:

• Cinzia Peraro (University of Verona): Cross-border collective redress: Horizontal vs sectoral approach
• Dr. Stephanie Law and Janek Nowak (both MPI Luxembourg)

Dr. Cinzia Peraro looked into the EU approach to the establishment of an EU framework for collective redress. Noting a lack of consensus amongst the Member States about a particular model of collective redress, she focused on the model of the "representative action". The presentation subsequently demonstrated that the EU's action in this field could be classified into two different categories: a horizontal and a sectoral approach. She then confronted these different policy approaches to collective redress with the existing Brussels I^bis Regulation and how the EU policymaker has tried to reconcile a uniform model of international jurisdiction with different models of collective redress. She concluded that that the current Brussels regime is not fit to respond adequately to the challenges issued by collective redress and considered whether extending the protective heads of jurisdiction of the Brussels I^bis Regulation as to include group representatives would be an adequate solution.

Dr. Stephanie Law provided a detailed insight of the functioning of representative collective redress under the rules of international jurisdiction provided for by the Brussels I^bis Regulation. She demonstrated that various heads of jurisdiction are inadequate to facilitate efficient representative cross-border collective redress in the European Union. In the absence of any amendments to the Brussels I^bis Regulation in the foreseeable future, a possible solution would consist in an extensive interpretation of connecting factors, such as contract or damage, by adopting a 'centre of gravity' criterion. Such an interpretation would, however, disturb the logic of the Brussels Regime, which is based on the criteria of proximity and predictability. A proper amendment of the Brussels I^bis Regulation may thus nevertheless be necessary in order to facilitate EU cross-border collective redress.

Janek Nowak focused on the recognition and enforcement of judgments resulting from collective procedures under the Brussels I^bis Regulation. He argued that the very liberal regime for recognition and enforcement under which the Brussels I^bis Regulation operates is the result of a common understanding of procedural concepts and fair trial guarantees amongst the EU Member States. Such a common understanding is, however, absent in relation to collective redress procedures. Strong differences exist between EU Member States about the necessity of collective redress and the essential procedural guarantees safeguarding the right to a fair trial in collective procedures. This may lead, in his opinion, to a broader application of the public policy exception in relation to judgments given in collective procedures compared to judgments given in individual disputes. In turn, this raises the question whether it is desirable to adapt the jurisdictional rules of the Brussels I^bis Regulation to accommodate for collective redress decisions when their free circulation is far from certain.

The video of this second panel can be found at https://www.youtube.com/watch?v=uc4SmZ_3CKE.

Chair: Andrew Dickinson (Professor, University of Oxford)

Speakers:

• Tobias Lutzi (University of Oxford): Casting the net - Has the Court of Justice's approach to online torts made the Brussels framework fit for the internet age?
• Dr. Alina Ontanu (Erasmus University Rotterdam): Encoding Justice: The quest for facilitating access to justice by e-handling of cross-border litigation. The example of European uniform procedures

Tobias Lutzi underlined the fact that the Brussels regime is technology-neutral and falls short in capturing the specificities and challenges of the 'borderless' nature of online torts, which are therefore handled on the basis of Article 7(2) Brussels I^bis Regulation. This, according to the speaker, is a fundamentally flawed approach since no harmful event actually exists. That being said, Lutzi focused on the core question of allocation of jurisdiction under Article 7(2) Brussels I^bis Regulation for online torts, as currently handled by the case law of the Court of Justice, which must provide for a consistent and partially technology-specific interpretation. While jurisdiction based on the place of the causal event remains, two different regimes with respect to the mosaic approach of the place of damage seem to have emerged: one for infringement of personality rights (cases eDate & Bolagsupplysningen) and the already established one for all other online torts (cases Wintersteiger, Hejduk, Pinckney, Concurrence). Overall, the speaker demonstrated that a number of important questions with regard to the scope, interplay, and, indeed, the appropriateness of these two regimes are being left unanswered.

Dr. Alina Ontanu presented about the e-handling of litigation in a cross-border context. Various manifestations of digitalisation of procedures have been introduced, largely regarding the European Uniform Procedures (EPO, ESCP, EAPO), the latter being at the forefront of these developments: from access to legal information to e-access on standards forms and national registers, and from provisional rules promoting the use of ICT to projects piloting full electronic cross border claims. Within this context the European E-Justice portal (that facilitates access to relevant information and supports procedural steps) as well and the E-Codex (that facilitates the exchange of judicial data and supports E-justice services) have been proven the most significant steps towards the creation of a European Service Provider, a true 'one-stop-shop' for all EU-Law users. The speaker also presented potential drawbacks from the use of ICT. Practical challenges arising from the procedural infrastructures complexities remain notably regarding the interrelating technical and procedural requirements; the different degrees of national digital justice systems, capacities and infrastructures; the language and legal semantics; the redesign of organisational routines, and the learning of new skills. Considering all these, the use of technology with a gradual switch from paper to digital procedural tools does not guarantee universal solutions at this moment.

The video of this third panel can be found at https://www.youtube.com/watch?v=ifv_EZrRrKg.