Wednesday, 2 May 2018

Explaining the global climate change litigation trend in De Groene Amsterdammer

The Netherlands' oldest opinion magazine De Groene Amsterdammer published a short essay by Laura Burgers in which she explains the global climate change litigation trend with the aid of a deliberative democracy model. 

Wednesday, 4 April 2018

The robot judge of e-Court: a blessing or a curse?

Report of a debate at the University of Amsterdam by Fien de Ruiter (student assistant)

On 22 March 2018, a public debate was organised at the University of Amsterdam on the so-called 'robot judge', in response to recent commotion about online arbitration in consumer cases in the Netherlands, offered by e-Court. E-court promises to provide an easier and cheaper alternative for adjudication before a State court. Most Dutch health insurance companies have included e-Court in their standard terms and conditions as a means for dispute settlement. For example, they bring their claims to e-Court in the event that customers do not pay their medical bills in time. Such claims are almost always allowed, since they mainly concern default cases. The health insurer then only needs to ask the State court for leave to enforce the arbitral award.

De Groene Amsterdammer recently published an article by Investico about e-Court, which questioned its modus operandi. For example, it is unclear whether individual defendants are even aware that arbitration is not mandatory for consumers. Another problem is the lack of transparency: it is unclear who the arbiters are and how they reach their verdicts. The arbiters are anonymous and the verdicts are not published. It is unclear whether the basis of the claim is duly checked and whether the guarantees that EU consumer law offers are properly applied. E-Court itself states that they will continue their successful initiative and that judiciary criticism stems from fear of competition.

Professors Ruth de Bock, Marco Loos and Evert Verhulp as well as investigative journalist Tim Staal discussed the pros and cons of the so-called 'robot judge'.

Whether you are a fan of alternative dispute resolution (ADR) or not, everyone agreed: the article in De Groene Amsterdammer was definitely a wake-up call for the judiciary. Typical e-Court defendants are people who are unable to pay their health insurance. It is therefore disproportionate to ask 482 euros in court fees for matters concerning less than 500 euros. For those with weak cases the risk of going to court is simply not favourable; the costs are too high. Someone in the audience even spoke about these costs as an unacceptable obstacle to the right of access to justice. In ADR parties know much faster where they stand without having to pay a lot of money.

Although e-Court did not set a good example, Professor Verhulp pointed out that the possibility to pre-sort cases through digital procedures without having to go to court is something we should consider more seriously. For example, it would help parties estimate how strong their case is, before they determine whether or not to go to court. If it turns out that chances are that they will lose, it will help them not to incur unnecessary costs associated with legal proceedings. But when there is a good chance of winning the case, it may be a motivation to go to court. In addition, through such digital preliminary procedures, it will be easier to focus on what the dispute is actually based on. If you let both parties enter data and thus see at which points they disagree, a judge knows which questions to focus on. When such developments in the future are further improved into a true 'robot judge', it is important that such systems remain completely transparent and can always be challenged.

On the other hand, one must be aware that alternatives do not amount into "default factories". The core question of the debate about ADR, is if and how efficiency may be at the expense of procedural safeguards. Both in the audience as well as in the panel, people feared that the 'robot judge' will deprive the judiciary of its human touch. Professor de Bock strongly opposed the idea that there would be a market for dispute resolutions. The judiciary offers certain institutional safeguards that are of fundamental importance, such as the fact that all verdicts are published and therefore open for criticism. The value of certain procedures such as the assurance that both parties are heard and the oral hearing should not be underestimated. A judge in the audience pointed out the importance of parties explaining their stories, who will then try to find out what actually happened. Especially in cases concerning debt issues, it is not only important to force people to pay, but also to help them realise what went wrong.

Tim Staal pointed out that e-Court appears to automatically assume that you agree with the digital arbitration procedure. In total, only six people have opted for a State court. It is not obvious that of the large number of awards that e-Court has given out, everyone was well aware they agreed to arbitration. Many people do not realise that an arbiter is not the same as a government judge. The article in De Groene Amsterdammer also showed that people are often persuaded to opt for e-Court because they do not fully understand what it entails. Moreover, Professor de Bock pointed out that it is questionable whether under current Dutch law it is even permissible at all to have judgments awarded by an automatized system. Can a judgment be issued solely by a 'robot judge' if this means the total absence of human beings? And is the court's minimal test to grant permission still sufficient in view of EU consumer law?

It is time to submit these pressing questions to the Supreme Court, or even better, the European Court of Justice, before the robot judge is more than just a 'digital mailbox'. Professor Loos argued that many ADR mechanisms do meet the standards of European law. However, there is always room for improvement, perhaps in a system in which the governmental judiciary and alternative dispute resolutions can complement each other. Professor de Bock suggested that perhaps it could be made possible for arbiters to be able to turn to a government court in case of pressing questions about, for example, the application of EU law. (See in this respect: http://recent-ecl.blogspot.nl/2018/03/arbitration-and-effective-consumer.html)

E-Court turned out to be a blessing in disguise. It raised may questions about how we want the judiciary to modernise. Where one person considers it impermissible that efficiency prevails over the guarantees that our law offers, the other sees it as a great advantage for the judiciary that the 'robot judge' offers a more efficient alternative. Hopefully soon a court will be able to ask preliminary questions about how to cope with the clash between the efficiency of e-Court and the procedural safeguards the judiciary offers.

Friday, 16 February 2018

12 and 13 April 2018 - REJus training workshop for judges on effective remedies in Dutch consumer law

On 12 and 13 April 2018, a training workshop for Dutch judges will be organised in Amsterdam on the topic of 'EU fundamental rights and effective remedies in Dutch consumer law'.

The workshop is organised in the framework of the project Roadmap to European effective Justice (REJus), a transnational judicial training project coordinated by Prof. Fabrizio Cafaggi and Prof. Paola Iamicelli.

During the workshop a number of presentations will be given on topical issues in consumer law protection in civil courts. Furthermore, participating judges will get the opportunity to exchange experiences in the discussion of specific case patterns.

More information is available (in Dutch) on our website.

Friday, 9 February 2018

Opinion on climate change damage litigation in newspaper Trouw

Today, Laura Burgers published an opinion on litigation on climate change damages against corporations in the Dutch newspaper Trouw. Although litigation is unlikely to solve the problem of climate change, litigation against corporations may further the democratic debate. 

A possible action might concern the obligation of corporations to reduce greenhouse gasses emissions, such as promoted by the Principles on Climate Change Obligations for Entreprises. Yet actions for damages could be of importance as well. Litigation by activists stimulates society-wide deliberations, and the issue of damages is to be widely discussed: everybody is to some extent responsible for climate change and its ensuing damages, but which polluter pays for what exactly?





Tuesday, 19 December 2017

Article on activism through judicial procedures in 'Wijsgerig Perspectief'

Together with her friend Tamar de Waal, Laura Burgers published an article in the Dutch philosophy magazine Wijsgerig Perspectief on activism through judicial procedures. The article is both a theoretical investigation into the emancipatory potential of constitutional states and offers a more practical action perspective for activists who want to use judicial procedures to attain their goals.

With the aid of theory by Claude Lefort and Jürgen Habermas, the article shows that constitutional states can be a source of emancipation, but that judges generally have to stay within the boundaries of democratically determined laws and principles. Judges have space to go against majority decisions only when fundamental rights are at stake. However, since these fundamental rights typically are human rights, environmental interests may lack judicial protection. For activists, it may still be wise to begin judicial procedures, because even when the procedure is lost, the mere media attention for the case may influence society-wide democratic deliberations and, after time passes, this might open up space for the judiciary to take into account more interests than it could before.

Laura Burgers & Tamar de Waal 'Activisme via de rechter' 57 Wijsgerig Perspectief  4 (2017) pp 25-33

Thursday, 14 December 2017

Anthropocentrism in European Private Law and the Case of Ben Nevis

It is a truth universally acknowledged that a constitutional state in possession of democratic institutions must have been made by humans. Law more generally is a human construction. Law is considered by some to be even problematically anthropocentric, that is, it would be overtly focused at human interests and thereby neglect the interests of animals and other forms of life on the planet.[1] Yet, in national legal systems across the globe, more and more natural entities get assigned legal personality: rivers, woods, mountains, even Mother Earth herself. This fascinating movement has entered the sphere of European private law, now the Scottish Muir Trust Foundation considers to endow its property, the mountain Ben Nevis, with legal personality.[2] Key questions here are whether such a move would diminish anthropocentrism in the law and whether it would lead to better environmental protection.

Anthropocentrism
Many agree that the legitimacy of democratic laws follows from the idea that all those who have to abide by it have a voice in its construction.[3] This is very close to the principle of all affected interests, stipulating that all interests touched upon by a certain law should be considered in the process of law-making.[4] Yet those who have a voice in the law-making process typically are human beings, mostly inclined to defend human interests, which can lead to the problem of the law to be anthropocentric. The results are clear: Even though international consensus exists on the necessity to act upon - for instance - climate change, governments find great difficulties to implement environmental measures. In the world of today, many species are endangered or actually die out, rivers are polluted and entire islands disappear below sea level. Human wealth and technology thrive more than ever.

Legal personality
‘Legal personality’ is a status the law can assign to an entity; it refers to the ability to bear legal rights and duties and to defend those in court. Interestingly, legal systems do consider not only human beings to be legal persons, but also corporations and institutions such as municipalities, States, or churches. Animals or other natural entities normally have no legal status – for the law, they are mere ‘things’. This is to say that people may have responsibilities towards them, but normally these natural entities cannot defend their rights in court rooms, let alone articulate their voice, or vote in the political process.

Legal personality for natural entities
Yet in 2008, Ecuador was the first country on the world to include in its constitution rights of nature, or Pachamama. Furthermore, in 2010, Bolivia proclaimed its Ley de Derechos de la Madre Tierra (the law of the rights of Mother Earth) – making the Earth a legal person in the Bolivian legal system. In Argentina, a similar proposal is made. Last summer, in Columbia and India, courts recognized certain rivers to have legal personality;[5] in New Zealand, the same was done by legislation for a river and a forest.

Environmental protection
In India and New Zealand, the reasons for endowing these rivers with legal personality were mostly religious – people in these countries consider the rivers to be divine entities. The Bolivian, Columbian and Ecuadorian moves, in contrast, were inspired by more environmental reasons. The Scottisch Muir Trust Foundation is ‘a conservation charity dedicated to protecting and enhancing wild places in the UK’.[6] Its reasons for giving the Ben Nevis – the highest mountain in the UK – the status of a legal person is purely environmental: nature and wild life should be protected. Lawyers working for the Muir Trust Foundation call themselves ‘wild lawyers’.

Balancing rights in private law
The question now becomes, of course, whether endowing a natural entity with legal personality indeed leads to better environmental protection. To be a legal person and thus, to be able to defend one’s rights in court, does not automatically mean one’s interests prevail in a private law conflict. On the contrary, in private law, rights and interests of two parties are typically balanced against each other. Outcomes can be compromises or an outright loss for one party. Imagine some corporation (= a legal person) would litigate about its factory, situated close to the legal person the Ben Nevis. The interests of this hypothetical factory could very well win against the interests of the mountain in private law litigation. Therefore, possibly stronger environmental protection could be obtained if governments simply declared natural entities to be national parks, or official ‘wild life areas’ that merit absolute protection against industrial interests.

Power of private law and the role of judges
For that last option, however, governments have to be willing to do so, whereas the core of problem ‘democratic laws are anthropocentric’ is precisely that environmental measures prove to be unpopular. The force of private law, now, is its bottom-up nature: a private foundation, such as Muir Trust, can decide to transform its property, a mountain, into a legal person. Judges have a particularly important role to play here, for it is for them to either acknowledge this legal personality and allow the natural entity standing in court, or dismiss the whole construction as ridiculous.

Judges for Utopia
Judges applying European private law should not be too proud, nor too prejudiced towards legal personality for natural entities. Certainly, legal personality is a mere legal status - a fiction, so to say - which does not lead to any better environmental protection as such. In this vein, Nick Mount remarked about the Columbian river with legal personality: “The Atrato River in general, and Rio Quito in particular, serve as a stark reminder that awarding environmental rights is not the same as realising them.”[7] Yet we should not forget the symbolic power of fiction that may lead us closer to a Utopia in the positive sense of the word. In political philosophy, calls are made to include animal voices in the democratic process,[8] or even ‘things’.[9] The rivers with legal personality and the Ben Nevis cannot vote for the elections (nor corporations, nor churches, for that matter). Yet to consider not only humans and their corporations, but also natural entities to be persons, legally speaking, might be a first step to turn the anthropocentric tide of our legal system.











[1] Cf eg Stephen M. Gardiner Debating Climate Ethics Oxford University Press (Oxford: 2016), pp 32-37
[3] Cf eg Jürgen Habermas Faktizität und Geltung; Beiträge zur Diskurstheorie des Rechts und des demokratischen Rechtsstaats Suhrkamp Verlag (Frankfurt: 1998), p 14
[4] Robert Goodin explains very clear why this principle reflects the essence of democracy in his ‘Enfranchising All Affected Interests, and Its Alternatives’ 35 Philosophy & Public Affairs 1 (2016), pp 40-68
[5] In India, this order is however stayed by the Supreme Court – we have to await how this is eventually going to be decided.
[6] https://www.johnmuirtrust.org/
[8] Sue Donaldson & Will Kymlicka Zoopolis, a Political Theory of Animal Rights Oxford University Press (Oxford: 2011); Eva Meijer Political Animal Voices PhD Thesis Univeristy of Amsterdam (Amsterdam: 2017), accessible through  https://pure.uva.nl/ws/files/15946241/Thesis.pdf
[9] Bruno Latour has called for a ‘parliament of things’ to be established in We have never been modern Harvard Univeristy Press (Harvard: 1993) pp 142-145 and, later, again in Facing Gaia Polity Press (Cambridge: 2017). In 2015, students set up a parliament of things to negotiate a new climate agreement at the same time as the conference of the parties of the United Nations Framework Convention on Climate Change, the latter of which resulted in the Paris Agreement, which is celebrated for its ambition. It turned out that the students, amongst whom not only representatives of countries, but also of, for instance, oceans, were included, came up with an even more ambitious agreement. This enormous experiment was caught by David Bornstein in the movie Making it Work, which can be watched online for free. For further artistic experiments with this idea, see also

Monday, 16 October 2017

Metamorphosis? Article 47 EUCFR in UCTD cases

In the latest issue of the Journal of European Consumer and Market Law (EuCML), an article has been published by Anna van Duin on the role of Article 47 of the EU Charter of Fundamental Rights in cases concerning national remedies and procedures under the Unfair Contract Terms Directive. The paper has been selected as one of the three Best Publications by Young Researchers at the Law Faculty of the University of Amsterdam in 2016-2017.

The tale of Article 47 of the EU Charter of Fundamental Rights appears to be one of transformation and seduction. While the importance of the right to effective judicial protection is widely acknowledged, there is confusion and even controversy about its actual implications for national civil courts. This article revolves around the question how and why Article 47 may be referred to in European private law adjudication. It aims to shed light on the main characteristics and constraints of Article 47 by analysing the case law of the CJEU concerning national remedies and procedures under Directive 93/13/EEC. Four key judgments of the CJEU are discussed. So far, the CJEU seems reluctant to accept the potential of Article 47 Charter as a weighty source for interpreting national law, let alone for setting it aside or filling gaps in the enforcement and protection of EU rights at the national level. Yet Article 47 could shift the focus from the effective enforcement of EU law towards individual rights protection. As such, it may provide a valuable instrument for national civil courts in cases covering (aspects of) EU law.

A proof-version of the paper can be found here. For citation and research purposes, please refer to the final version published in EuCML.