Private international environmental litigation before EU courtsChoice of law as a tool of environmental global governance

Resumen

My dissertation is structured around an apparently simple question: from the standpoint of environmental protection, is it effective to intervene in environmental matters through means of private international law? More specifically, is it effective to intervene through the means of (so-called) choice-of-law rules? (These rules establish which national law amongst those related to a dispute needs to be applied. For instance, in a case of a dumping of dangerous chemicals in the Rhin in France which causes environmental harm downstream in the Netherlands, which legal system, French or Dutch, determines the polluter’s liability?). My research deals with this problem addressing, inter alia, its global governance implications, as well as its significance as regards the enforcement of the EU’s environmental policy. From this seemingly straightforward standpoint complexities unfold. Chapter 1 introduces the dissertation’s core notions and provides a first approximation to the question of the effectiveness of intervening in environmental matters through choice-of-law rules. It acknowledges the existence of a first problematic issue: due to the difficulties faced by substantive tort law when trying to prompt deterrence in economically-powerful tortfeasors (point demonstrated through case-law analysis), it is unlikely that potential polluters may feel a threat in choice-of-law rules dealing with international environmental torts. Thus, the core result that may be achieved through a choice-of-law intervention in environmental matters is damage compensation, but rarely deterrence. Chapter 2 approaches choice-of-law interventions in environmental matters from a different perspective: it provides an assessment of the articulation and relationships amongst any choice-of-law intervention – not necessarily the “regional” one created by the EU – and other legal mechanisms and regimes of environmental protection. This assessment leads to the conclusion that, despite the chaotic multiplicity of international legal instruments that are involved (in one way or another) in the protection of the environment, most of them are preventive in nature, and very few of them are compensatory. Consequently, multilateral choice-of-law interventions bear an important potential in environmental occurrences for compensation purposes. Moreover, they may fulfill a default role (“droit commun”) wherever a specific thematic field has been occupied by another compensatory international legal mechanism (as it is the case in respect of nuclear damage or oil-pollution at sea). Chapter 3 constitutes a transition from the general framework of thinking embodied in Chapters 1 and 2 to a specific European-centered reasoning, focused on testing the effectiveness of the specific environmentally-protective choice-of-law provision enacted by the EU: Article 7 of the (so-called) “Rome II” Regulation. This chapter introduces several effectiveness-hindering stakes which may be faced by any similar “regional” mechanism enacted anywhere in the world, but it mainly presents, however, the responses – or lack thereof – that the EU has provided. The said stakes do not directly pertain to the nature of choice-of-law rules, but to structural aspects or to “procedural” elements. The analysis of these stakes leads to concerning conclusions in many instances. This is the case notably in respect of the current lack of appropriate means of environmental collective redress at the EU level. This lack, coupled with a “procedural” limitation in the involvement of the State in private redress proceedings (which arises from European rules on international jurisdiction), means that there is a significantly worrying obstacle in the redressability of damages to the environment itself (ecological damage, as opposed to damage to human beings due to pollution) when litigation takes place before courts throughout the EU. The fourth and final chapter addresses the intrinsic (hidden) failures in the EU’s “regional” choice-of-law rule on environmental torts (as mentioned, Article 7 of the Rome II” Regulation), which undermine its effectiveness. Notably, this chapter demonstrates that the rule is not able to “increase the level of environmental protection” (as the European Commission contended it would) in a specific set of situations which, nevertheless, come within its material scope: the rule is totally ineffective when confronted with environmental catastrophes caused by European polluters in developing countries (chances of attaining deterrence of environmental damage shift from “rare” to “almost impossible”, and compensation remains, due to the specificities of these scenarios, very limited). This conclusion is reached through demonstrations performed on the basis of case-law on international environmental torts, as well as through hypothetical modelling on non-litigated environmental catastrophes (data collected from online newspapers).