Written by Liebrich Hiemstra, Vrije Universiteit Amsterdam – Amsterdam Centre for Climate Change and the Law and Vattenfall NV, the Netherlands

A constant factor in the energy sector is its constant development, evolution and movement. This also applies to the financial products traded within the energy sector. Yet, this is one side of the energy market which has been researched very little: the trade in energy derivatives and how such trading is supervised by EU and national regulatory authorities. My take on this is that the supervision of this sector is too unclear and that the available remedies to market participants against a decision of supervisory agencies to share or disclose confidential information are ineffective.

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By David Cluxton

“Win in state court, lose in federal court.” The lament of the aviation plaintiff litigator whilst crying—not always metaphorically speaking—into their beer at the end of another frustrating day battling before the federal bar. It is no secret that U.S. state courts are generally regarded as being pro-plaintiff, while the U.S. federal courts are seen as pro-defendant. This is a reality that makes itself felt in any number of ways and can, not only be of great significance to the litigation of a given case, but often also outcome determinative. This is especially true in the litigation of aviation passenger claims, that are, by the nature of air transport, more likely to involve a foreign element, and thereby expose the case to issues of competing jurisdiction and conflict of laws.

For instance, if we take a hypothetical crash occurring in Colombia of an Irish-registered aircraft, operated by a U.S. airline, and involving death or personal injury to a passenger of French nationality, these circumstances could offer the plaintiff a choice of several forums in which to pursue a claim. In such cases, it almost goes without saying that the plaintiff will elect to sue in a forum within the United States; it being the forum of choice for the litigation of aviation passenger claims. The United States has long been the center of gravity for such litigation. Many factors make trial in the United States desirable, such as the availability of contingency fees, wide-reaching rules of pre-trial discovery, highly experienced law firms specialized in aviation litigation. But, above all, it is usually the quantum of damages likely to be awarded by in a U.S. forum that is the decisive factor in choosing to sue in the United States.

Where some element of an aviation passenger case touches the United States, the plaintiff lawyer will seek to bring that case in a U.S. court. But where that case involves an international component that also provides for the possibility of suing in an alternative foreign forum, then the plaintiff lawyer seeking to sue in the United States must wrestle with the problem of a common law doctrine called forum non conveniens. Simply put, the doctrine of forum non conveniens (FNC for short), permits the chosen forum (i.e., the court to which the plaintiff has brought their claim) to decline jurisdiction over the case, at the behest of the defendant, where an alternative forum is deemed to be more appropriate or convenient in the circumstances. For example, in our hypothetical example above, the defendant may argue that Colombia is the more appropriate forum for resolving the claim, because, as the location of the accident, a Colombian forum would have better access to evidence, and/or that there is a greater public interest in the litigation in Colombia than in the United States, and/or that there is existing litigation of other actions occurring there pertaining to the same accident; the possible reasons are legion.

The specter of FNC dismissal of an international aviation passenger claim is one such area where the difference in treatment between U.S. state courts and U.S. federal courts is most conspicuous and influential. This is because there is a much greater likelihood of FNC dismissal from a U.S. federal court than from a U.S. state court. The more conservative leaning and pro-defendant tendencies of U.S. federal courts mean that they are more likely to side with the defendant who is seeking dismissal on grounds of FNC. For this reason, the plaintiff aviation litigator will attempt to avoid federal court entirely by pleading their case exclusively on state law. However, there are a number of pitfalls to be avoided if one wants to keep a case in state court, e.g., federal question matter.

When it comes to claims to which the Warsaw Convention 1929 or the Montreal Convention 1999 apply, keeping a case in state court has proven a Sisyphean task. These conventions (these are multilateral treaties) govern the liability of the carrier for international carriage by air of passengers, baggage, and cargo. They contain uniform rules pertaining to matters of such as liability, jurisdiction, defenses, time limitations, and so on. Thus, where a passenger is killed or injured in an aviation accident to which one of these conventions applies, an action for damages (e.g., a wrongful death action) must be brought against the carrier subject to its provisions.

Where the Warsaw Convention 1929 or Montreal Convention 1999 apply, if a plaintiff sues in state court, pleading a state-law cause of action for wrongful death, the immediate response of the defendant carrier will be to seek to have the action removed to federal court. When the plaintiff then seeks remand back to state court, the defendant carrier will argue that the applicable convention provides the cause of action, and, since it arises under the law of the United States, the federal courts have jurisdiction. What is more, the defendant will argue that the cause of action under the applicable convention is exclusive and completely preempts of any causes of action under state law. Thus, even where the plaintiff’s well-pleaded complaint reveals only a state-law cause of action, that cause of action is effectively converted into a federal cause of action. Unfortunately, many federal courts have proved indulgent of these arguments by defendant carriers and have endorsed the doctrine of the exclusivity of the cause of action of the Warsaw and Montreal Conventions.

Is this conversion of a state-law action into a federal one the result of juristic hocus pocus, or some arcane legal alchemy? Whatever its true nature, the practical result is that aviation passenger cases that are brought first in state courts are routinely removed to a federal forum. Once there, the likelihood is that the defendant will seek dismissal on grounds of FNC, arguing that a foreign forum is the more appropriate or convenient forum for resolution of the claim. Of course, the reality is that the defendant’s motivation is seldom, if ever, appropriateness or convenience; instead, it is the desire to avoid a U.S. forum in preference for a foreign forum where the ultimate quantum of damages likely to be awarded will be much less. In most cases, once the litigation of the claim in a U.S. forum has been averted, the parties will elect to settle out of court.

Is it fair to plaintiffs to deprive them of their choice of forum in this way? The answer to this question is largely dependent upon establishing whether or not the cause of action of the Warsaw and Montreal Conventions is indeed exclusive. Was it the intention of the drafters of those treaties that they should be a one-stop-shop for the passenger claims, excluding reference to national law causes of action; or, were the drafters satisfied with merely laying down the conditions upon which national law causes of action could be exercised? The titles of those Conventions both refer to the “unification of certain rules”, i.e., not all rules. This would suggest that the drafters intended the latter, not the former. In which case, the drafters would not have objected to a plaintiff basing their claim on state law and pursuing it to a conclusion in a state court. If, as I argue, the doctrine of exclusivity of cause of action is doctrinally unsound and is in fact the result of decades of mistaken interpretations, overlooked distinctions, and exaggerated conceptions, we must seek out the true motivation for its creation.

In the specific context of aviation passenger litigation, why should the U.S. courts seek to deprive the plaintiff of their choice of forum? As is demonstrated in my book, the reason lies in the United States’ refusal to ratify an amending protocol to the Warsaw Convention 1929, i.e., the Hague Protocol 1955, and the resulting difficulties that this produced and that, in turn, gave rise to the latent, compelling policy justifications for indulging the concept of exclusivity of cause of action. These policy justifications are, however, no longer salient. This is especially so in the context of the Montreal Convention 1999, that is, after all, a modernization and consolidation of the Warsaw Convention System, and, furthermore, encapsulates a new balance of interests favoring the plaintiff passenger (qua consumer) vis-à-vis the defendant carrier. In spite of this, the unsound doctrine of exclusivity of cause of action persists, continuing to prejudice the interests of plaintiff passengers in favor of the interests of air carriers, their insurers, and the wider air transport industry. Ensuring the equitable and speedy resolution of international aviation passenger claims is one of the purported purposes of the Montreal Convention 1999, and the desire to strike a new, fairer deal for the plaintiff passenger was voiced by the drafters as a key goal during its gestation. However, the U.S. federal courts continued endorsement of the doctrine of exclusivity of cause of action is undermining those goals. It is my hope that my book might provide ammunition to those who seek to overturn the current consensus and banish the doctrine, or at least prompt legislators to remedy the situation.

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By Rosa Celorio

Women and gender equality issues are today deeply embedded and present in global and national human rights concerns. They find expression in many legal instruments. They are reflected at the national level in many countries in Constitutions, legislation, and national policies. They are addressed in case judgments by Supreme, Constitutional, and lower courts. There is also an international law framework designed to govern the human rights of women with direct and comprehensive obligations for states, still led by the promise of the Convention on the Elimination of all Forms of Discrimination against Women (hereinafter “CEDAW”). The efforts of this global system are greatly complemented by active regional human rights protection systems in the Americas, Europe, and Africa, and emerging regional approaches in Asia and the Middle East. There are also many bodies created at the global, regional, and national levels with the objective of advancing the protection of the rights of women.

Despite these advances however, women still experience daily violations of their civil, political, economic, social, and cultural rights. The Beijing Declaration and Platform for Action adopted in 1995 reaffirmed women’s equality as a basic human right and the paramount nature of their rights to live free from discrimination and gender-based violence. More than twenty-five years later, women still face formidable challenges to see their human rights fully respected, protected, and fulfilled. One hundred years have passed since the adoption of the Nineteenth Amendment of the United States Constitution granting women the right to vote, but the struggle continues to see their full citizenship rights respected, and for women to fully and effectively participate in public and political life.

Women and girls still constitute the vast majority of gender-based violence victims, suffering widespread domestic violence, sexual violence, psychological, and economic harm. They also experience forms of intersectional discrimination, racism, inequality, and exclusion. Women still carry most of the unpaid work at home, caring for children, the elderly, and the sick. Women are also affected by poverty, and constitute a large component of workers in the informal economy, lacking many social and employment protections. Women are still largely absent from decision-making positions in the political, civil, social, and economic affairs of their countries. Women and girls moreover face significant restrictions to access the information necessary to make autonomous decisions concerning their sexual and reproductive lives, and daunting barriers to access health services they only need due to their biological differences. Women human rights defenders still lose their lives and suffer forms of harassment and violence for voicing concerns and defying social expectations. We live in societies in which equality for women and a full protection of their human rights is still a distant dream. A gender perspective is still lacking from most decision-making.

The study of the rights of women is made more intricate in the present by the fact that many new social developments greatly impact the way women exercise their human rights. These include the COVID-19 pandemic, the MeToo movement and its aftermath, environmental degradation and climate change, unregulated business practices, and the strength and influence of non-state actors. Women in different circumstances still face structural and intersectional discrimination, racially-motivated bias and violence, hate speech, xenophobia, and violence in the internet, technology, and social media spaces. Critical advances in the area of sexual and reproductive rights face severe backlash and are under threat.  Sexual orientation, gender identity, gender expression, and sex characteristics have become major elements in the way we define women and how human rights concerns impact them. The study of women’s rights today involves contemplating the present-day contexts in which these rights are limited, but also exercised. 

This makes necessary to combine and reconcile the history of the human rights of women with its modern scenarios and manifestations, and to adapt the current legal framework to the contemporary challenges that women face to see their human rights fully protected.  As we begin the year 2022, the world is still reeling from the effects of the COVID-19 pandemic, which has tested women in their resilience, stamina, and survival skills. All of their human rights have been challenged in some way during this crisis. Women, however, have also been key in addressing the pandemic. Women constitute a large component of the health workers who have been risking their lives daily to fight the disease and care for those affected. Some of the most visible country leaders fighting the pandemic have been women, and with successful results. Women also compose a large group of the journalists, human rights defenders, and researchers who have brought information daily to the public of the magnitude and spread of COVID-19. In the author’s view, this is a moment with an important legacy in the way we perceive the development and effectiveness of human rights norms concerning women, and how they are applied when our humanity is tested.  It is a moment that allowed us to see women as multi-dimensional beings, in many roles beyond victimhood, as political leaders, doctors, nurses, teachers, scientists, and heads of household.

A watershed moment like the COVID-19 pandemic can end up transforming the way women work; lead; participate in education and public, political, and family life; and use technology in the future. International law can provide an important roadmap and structure for these transformations, and can evolve itself to respond to contemporary times and the challenges faced by women.

Foremost, a contemporary look of women’s rights issues requires viewing women not only as ongoing victims of gender-based violence and discrimination, but also as leaders, shapers, and influencers.  Women are key to resolve many of the most important human rights issues affecting the world, such as climate change, intersectional and racial discrimination, extreme poverty, food and water shortages, armed conflicts, ongoing violence, and barriers to access technological advances.  Many legal standards related to the rights of women have been developed considering women solely as passive subjects of rights and as victims. It is only recently that women are increasingly perceived as active participants, leaders, agents of social change, and shapers of culture.

A legal approach guided by the goals of autonomy, dignity, personal liberty, and effective participation is a precondition to see the full realization of women’s rights in the present and the future.  

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by Anna Berti Suman, SensJus Principal Investigator

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Katie Sykes blogs on the threats that face animals in our globalized world.

In recent years animal welfare and animal rights have started to be taken more seriously in international legal scholarship. There is a nascent Global Animal Law movement that works to promote international legal protection for animals – meaning protection of individual animals as intrinsically valuable and significant beings, not just conserving aggregate populations of animals as valuable resources for human use. 

In a globalized world, the threats that face animals often have an international dimension. To name just a few examples, think of the 14,000 sheep that drowned in 2019 when a cargo ship en route to Saudi Arabia capsized in the Black Sea; the live animals on long international voyages that were caught in the delays when the Suez Canal was blocked by the grounded cargo ship Ever Given; the challenges of protecting species that migrate across international boundaries; and the effects of climate change and global environmental degradation on animal habitats and survival.

Global Animal Law scholars argue that we need an international law of animal protection to respond effectively to challenges like these, because uncoordinated domestic laws leave too many gaps.  And, on a more philosophical level, they (or, rather, we, since I include myself in this group) believe that a just international legal order must grapple with the ethical dimension of humanity’s relationship with nonhuman animals.

But attention to these issues in positive international law is still disappointingly sparse.  For years there have been discussions of an multilateral treaty on animal welfare, but the treaty does not exist.  A UN Declaration of Animal Welfare was drafted more than a decade ago, but it has lost momentum.  The jurisprudence of international courts and tribunals is almost completely silent on animal welfare and the moral significance of individual animals.

There is one notable exception: the EC—Seal Products case at the World Trade Organization.  This case started when the EU banned sales and imports of all seal products, citing the concerns of the European public about cruelty in the seal hunt.  Sealing nations Canada and Norway challenged the EU ban as an illegal restriction on international trade.  A WTO panel ruled on the case in 2013.  Here’s the rare exception to the general invisibility of animal welfare at international tribunals: the WTO panel stated that animal welfare is “a globally recognized issue” and “an ethical responsibility for human beings in general.” 

The panel’s decision was appealed to the WTO Appellate Body, which changed some aspects of the panel’s reasoning but came to a similar conclusion overall – and did not overturn or disavow the panel’s statements about the global significance of animal welfare.  Both the panel and the Appellate Body confirmed that concerns about animal welfare can be a legitimate reason to restrict trade under the “public morals” safe harbour in WTO law.  The ban survived (with some modifications), many other countries adopted similar bans on seal products, and commercial seal hunting has declined significantly.

This positive contribution to the development of global animal law from the WTO would have been pretty unexpected a decade or two ago.  In the 1990s and 2000s, many animal advocates saw the international trade regime as one of the greatest threats to progress on animal protection.  At the Seattle protests against the WTO in 1999, some of the demonstrators dressed up as turtles – a reference to their fear that the WTO would gut US trade restrictions on imported shrimp caught without equipment that protects endangered sea turtles from being caught in shrimp nets and drowned.  Governments dragged their heels on animal protection legislation that would affect trade, such as banning imports of cosmetic products tested on animals, invoking their worries about potential litigation at the WTO.

After EC-Seal Products, it is clear that WTO members can act to protect animals, not just for conservation purposes but also based on animal welfare concerns, without violating trade rules.  And the case is also important for the panel’s express recognition of the importance of animal welfare as a global concern and a responsibility of humanity.

It is not clear, however, how much difference this development has made or will make in practical terms to the global plight of animals.  Animal welfare protection is weak all over the world.  Even in the jurisdictions with the (relatively) strongest animal welfare laws, millions of animals endure almost unimaginable suffering, and the protections that do exist tend to be poorly enforced.  The WTO will not change this.  WTO law (as we know after EC—Seal Products) doesn’t have to prevent governments from legislating to protect animals – but it certainly doesn’t require it.  The WTO is not an animal welfare agency.  Its purpose is to facilitate global trade. Global trade in animals and animal products is steadily growing, and that means more animal suffering. 

Even the confirmation that WTO rules need not be an impediment to stronger animal protection laws may not change very much on the ground.  Governments don’t seem to have much trouble finding other reasons not to act to protect animal welfare, especially when there are competing business or other human interests.  On the other hand, there are some signs that governments may be willing to go further on some animal protection policies now that they no longer face the same uncertainties about running into WTO problems.  For example, Canada recently enacted a ban on the import and export of shark fins – the first G20 country to do so.

It’s possible that more evolution towards international agreement and collaboration on protecting animals could come from international trade law – but trade law outside the WTO itself. There is a huge number of non-WTO trade agreements, from bilateral deals between two trading partners to vast trading blocs that cover multiple countries and large portions of the global market, such as the Trans-Pacific Partnership (now the Comprehensive and Progressive Trans-Pacific Partnership or CPTPP).  An important feature of these more modern trade agreements is the inclusion of positivecommitments on non-trade matters (such as labour rights and environmental protections) that are connected to membership in the trading relationship.  In other words – if you want to be part of this trade deal, you also have to promise to live up to these standards on labour, the environment, etc. 

That “etc.” could include animal welfare.  In fact, in some bilateral agreements between the EU and other trade partners (including Chile, South Korea and Mexico), it already does.  Those deals have fairly weak language about developing mutually agreed standards on animal welfare and having consultations on animal welfare concerns, limited to matters that have to do with trade covered by the agreement.  All the same, these are international treaties that do expressly deal with animal welfare.  Scholars and activists have been advocating for an animal welfare treaty for all these years, and in a limited and nascent form such treaties do already exist.

The bigger multi-party trade agreements do not address animal welfare.  They do, however, routinely include entire chapters on environmental commitments, which includes the protection of animals to some extent.  An especially interesting feature of these provisions is that they create mechanisms for public participation.  In practical terms, this means that NGOs and even private citizens can request information and make submissions if their own governments are failing to live up to the environmental commitments under the treaty.

These mechanisms can be used to help protect animals.  In fact, they have been. Public participation provisions under a regional trade agreement called CAFTA-DR were used by Humane Society International and the Humane Society of the US in 2007 to address illegal killing of endangered sea turtles in the Dominican Republic, a party to the trade deal. Trade-related provisions like these could potentially become a starting point for generating collaborative international approaches to protecting animals, based on shared values and linked to enforceable obligations. In fact, it’s not far-fetched to imagine a multilateral treaty on animal welfare actually appearing in positive international law someday, in the form of a chapter appended to an international trade agreement.  International trade law may seem like an unlikely incubator of global animal law.  But perhaps this will indeed be where international animal welfare law starts to get a foothold in positive law and real-world action.

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