Tesis doctoral de Pia Monserrat Moscoso Restovic
When court of luxembourg created «the rule of ubiquity» it had to resolve two situations: the first, determining the «harmful event» without entering into the debate about the causality between damage and the event giving rise to it, and the second, dealing with the problem from a phenomenological perspective (environmental damage) without going into commenting on the relationship between environmental damage and civil damage. We conclude that this method was inefficient for the protection of the civil victims of international environmental damage, because until today, except the judgment in case bier vs. Minas de potasio de alsacia, there have not benn any issues that involve environmental damage. The reason for the lack of international lawsuits associated with an occurrence of environmental damage is due to the fact of having reduced the legal reality of international environmental damage to the category og «transboundary damage», leaving aside the notion of «transnational civil tort». although the jurisprudence of the court of luxembourg has not expressly accepted the favor laesi principle, we conclude that one cannot fail to recognize that the right of optio fori that the court of luxembourg has established in favor of the plaintiff (through tha application of the rule of ubiquity) has arisen through the act of considering the plaintiff as «the weaker party» of the international relationship. Without prejudice to the limitations that the court has established for the forum actoris, we consider that, whether by means of giving applicabitity to the favor laesi principle or by means of the creation of a forum actoris, it is possible and convenient to establish a special legal authority for cases of environmental damage. we propose an extensive interpretation of the rule of ubiquity, in such a way that includes «direct civil damages» and ensures the fulfillment of the following objectives: a) ensuring the best place for the development of the judicial procedures promoted by civil plaintiffs. b)establishing just criteria in the distribution of the costs of negative externalities and risks assumed in the development of an environmentally damaging activity (retributive justice), neither wanted nor assumed by the civil victims. c) ensuring preventative protection for threat of international civil damage in case of the existence of risk (preventative justice). for the purposes of extensively interpreting the rule of ubiquity in favor of the civil victim and configuring forum actoris in any place where the civil victim experiences «direct damage», we have considered it necessary that there be an accompanying test that serves to: a.-) Establish a connecting link between the civil damage, the environmental damage and the competent court, in such a way that only the «direct civil daamages» benefit from the forum actoris. b.-) Ensure the protection of the plaintiff of environmental civil daqmage, for the reason of being considered the «weaker party». although no special regimen exists for the victims of civil damage and of pure environmental damage (also called «ecological»), in the case that such a regimen does exist, in should be in accordance with optio legis as established in legislative material applicable to regulation 864/2007 rome ii. This regulation does recognize the plaintiff of environmental damage and of associated civil damage as the weaker party. This we propose is a coherent interpretation of lege ferenda.
Datos académicos de la tesis doctoral «Competencia judicial internacional para daños civiles asociados a daños ambientales«
- Título de la tesis: Competencia judicial internacional para daños civiles asociados a daños ambientales
- Autor: Pia Monserrat Moscoso Restovic
- Universidad: Complutense de Madrid
- Fecha de lectura de la tesis: 21/01/2014
Dirección y tribunal
- Director de la tesis
- Francisco Andrés Pinilla Rodríguez
- Tribunal
- Presidente del tribunal: fernando Gascón inchausti
- iván Milans del bosch portoles (vocal)
- marina amalia Vargas gómez-urrutia (vocal)
- Miguel Gomez jene (vocal)