Programme​​​​​

Venue: Tolhuistuin, IJpromenade 2. Please enter by going up the stairs outside and enter through the restaurant.

Disclaimer: please note that the preliminary indications below are written by the workshop organizers, based on the paper proposal, and are solely given for the purpose of informing possible commentators.

Thursday 21 November

12.00-13.00 Welcome and lunch at Tolhuistuin

13.00-15.15 Session 1: Environment

1. Prof. dr. Axel Halfmeier & Malte Jannik Schlichting, ‘Does the Aarhus Convention require an association action to protect the environment in German private law?’ (experts: Klaas Eller, Tessa Trapp)

Preliminary indication of topic:This paper examines the limited scope for associations to take legal action against environmental violations under German private law. In German law, the only possibility for legal action relating to the environment, exists in public law: the Umweltrechtsbehelfsgesetz (UmwRG) and Bundesnaturschutzgesetz (BNatSchG). While consumer protection laws like the Verbraucherrechtedurchsetzungsgesetz (VDuG) allow some private legal action, the plaintiff must be a consumer, making it inadequate for environmental violations. The paper highlights how this legal framework is inconsistent with Article 9(3) of the Aarhus Convention, which requires the contract parties to give members of the public access to justice for environmental breaches. It argues for reforms to align German private law with international obligations, especially in light of emerging EU regulations like the European Commission's proposal on plastic pellet loss, which enables collective action for environmental damage.

2. Charlotte de Meeus, ‘Financial Barriers in Environmental Collective Actions: The Role of Private Litigation Funding’ (experts: Eduardo Silva de Freitas, Olav Haazen, Nicholas Diamand)

Preliminary indication of topic: This paper explores the potential role of third-party litigation funding (TPLF) in enhancing access to justice in climate litigation within the EU. It examines the financial barriers that persist in collective climate-related lawsuits and the limitations of public funding in addressing these challenges. The paper evaluates the growing reliance on private funding, particularly TPLF, and assesses its potential to enhance access to justice in this field. Furthermore, incentives for third-party litigation funders to invest in collective climate litigation and risks associated with an increased reliance on TPLF are discussed.

3. Dr. Ander Maglica - Environmental Justice through Collective Actions: from Taranto to Luxembourg, and beyond? (experts: Koen Rutten, McKenzie Ursch)

Preliminary indication of topic: This paper examines the possible use of collective actions in Europe for addressing mass environmental pollution, in light of the EU Directive 2020/1828 on consumer collective redress and its implementation. Focusing on the findings in the Italian ILVA case and the recent CJEU preliminary ruling (C-626/22), the paper explores the regulatory framework for collective actions in environmental litigation and gives an overview of the developing case law on collective environmental litigation, with a special focus on the Italian jurisdiction. Furthermore, it thoroughly analyses the pending collective action against the ILVA steel plant and the preliminary ruling from the CJEU on the 25th of June 2024 EU:C:2024:542. The paper identifies emerging trends, potential benefits and drawbacks associated with collective environmental litigation. Recommendations for improving legal frameworks to better support such actions are also proposed.

15.15-15.45 Break

15.45-18.00 Session 2: Social & standing

1. Prof. dr. Aukje van Hoek & prof dr. Etienne Pataut - Litigating from abroad. National Unions, collective actions and foreign workers (experts: Edith Nordmann, Mariëlle Groen)

Preliminary indication of topic: This paper explores the challenges unions face when aiming to represent workers’ interests in cross-border judicial collective actions. It addresses key questions such as whether national unions can defend the rights of foreign workers and whether foreign unions have standing in such cases. In the paper, issues of jurisdiction, standing, and choice of law in transnational collective actions are examined. The paper considers potential frameworks for enabling unions to better represent workers across borders, particularly in the context of the EU's due diligence directive, by drawing inspiration from consumer protection law.

2. Dr. Anna van Duin, dr. Francesca Episcopo and dr. Aart Jonkers, Beyond Individual Redress: A Legal and Societal Perspective on Collective Actions for Non-Material Damages under the GDPR (experts: Christiaan Alberdingk Thijm, Diederik van der Kooij)

Preliminary indication of topic: This paper explores the suitability of collective actions for mass redress of non-material damages in the context of private enforcement of the GDPR. It analyzes recent Court of Justice of the European Union (CJEU) rulings, which shows that that any GDPR violation causing non-material harm, regardless of severity, warrants compensation. The paper highlights the challenges of assessing non-material damages, particularly in collective claims, and argues that traditional tort law may need to evolve to encompass societal harms. Integrating societal considerations into compensation frameworks leads to better alignment with the GDPR's objectives of personal data protection and effective remedies for data subjects.

3. Rhonson Salim LLM - Standing in collective environmental claims: the quest for normative consistency to representation. (experts: Frank Peters, Channa Samkalden)

Preliminary indication of topic: This paper examines and critiques the interpretation and application of the ‘representative’ element in standing criteria for collective environmental claims before domestic and international courts. It identifies a 'representation paradox' in the varying degrees of connection between claimants and victims, comparing international and domestic case law, including Verein Klimaseniorinnen Schweiz And Others v. Switzerland and cases from the UK and EU. Using Hanna Pitkin’s conceptualization of the notion of representation, the paper critiques the normative gaps created by the paradox in the case law and develops a typology of representation in environmental claims. The paper concludes with a proposal to achieve normative coherence towards the representation in collective environmental claims.

18.00 Boat tour to restaurant

19.00 Conference dinner at A Beautiful Mess, Amsterdam

Friday 22 November

9.15-12.15 Session 3: Jurisdiction, access to justice and alternative routes

1. prof dr. Csongor Nagy - Mass Investment Claims and the Compensation of War Victims in Ukraine (expert: Helene van Lith)

Preliminary indication of topic: The proposed paper argues that mass investment arbitration can serve as a viable mechanism for compensating war damage suffered by Ukraine, utilizing frozen Russian assets. It demonstrates that, under the Russia-Ukraine Bilateral Investment Treaty (RUBIT), Ukrainians may seek compensation for their losses, and that collective arbitration claims can make this achievable. The paper further explores the substantive issues of the applicability, and the suitability of collective arbitration claims to bundle and effectively enforce mass investment claims. It also examines the legal frameworks and mechanisms for organized mass arbitration proceedings, suggesting that these proceedings could provide an efficient remedy for large groups of Ukrainian victims.

2. dr. Ilaria Pretelli – Jurisdiction for mass damage in the Global South (experts: Cathelijne van der Plas, Marie Jose Azar-Baud)

Preliminary indication of topic: This paper explores the increasing recognition of corporate liability for environmental and social damages caused by their activities, while noting the low success rate of collective actions. It focuses on cases where harm is caused by companies in the Global South under the control of parent companies located elsewhere, and victims seek access to justice in the parent company’s jurisdiction. The paper argues that the jurisdiction of the judicial authority of the legal order in which the parent company is based ensures predictability and effective access to justice. This helps to mitigate risks of social and environmental dumping and is important for an effective assessment of the risks of the company’s activities. Through comparative case analysis, optimal private international law rules for ESG collective actions and their role as a tool in global governance are identified.

3. dr. Carlota Ucín - The forms of public interest litigation as a means of accessing justice for environmental claims (experts: Philip Paiement, Nicky Touw)

Preliminary indication of topic: This paper explores the challenges of accessing justice in public interest litigation, particularly in cases involving complex, contemporary issues like climate change. By considering some comparative experiences, the article categorizes public interest litigation into three types: structural reform cases that are the cause of human rights violations, collective claims representing specific groups, and ‘individual test cases’ with broader impact. These categories serve theoretical, practical, and judicial purposes, offering strategies for litigants and guiding judges in handling public interest litigation. The article concludes with reflections on the development of this practice and the usefulness of chanelling environmental claims.

4. Nabintu wa Nciko - The Ogiek Community’s Rights Violations from Carbon Market Deals: African Court on Human and People’s Rights vs. East African Court of Justice (EACJ) (experts: Mathilde Cohen, Laura Burgers)

Preliminary indication of topic: This paper examines the eviction of the Ogiek community from their ancestral land in Kenya in November 2023, to facilitate the government's agreement to generate carbon credits. While the Ogiek have faced historical evictions, the involvement of carbon markets introduces new legal challenges. The author suggests that the East African Court of Justice (EACJ), given its progressive environmental jurisprudence, would be a more appropriate forum to address this carbon-credits-induced eviction than the the African Court on Human and Peoples’ Rights. Relying on the 2010 Serengeti case, the paper highlights how the facts presented before the EACJ led to a favorable outcome, despite opposition from governments. The success of this case offers a pathway for protecting indigenous communities against the pressures of carbon markets.

12.15 Closing remarks

12.45 Lunch at Tolhuistuin