June 2015 - Tilburg Richard Meeran Access to Justice in the EU
for Victims of Corporate Related Human Rights Abuse
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Key factors in ensuring access to justice against MNCs
1.Existence of legally actionable claim providing adequate remedy
2.Evidence available to support legal case to requisite standard of
proof 3.A court having jurisdiction and willing to exercise it
4.Availability of adequate legal representation 5.In compensation
claims - adequacy of damages MNC ability to pay
6.Harassment/intimidation of victims
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British oil firm paid Congo army chief to silence opponents,
says watchdog Global Witness finds proof that British company
searching for oil in Africas oldest national park paid thousands of
dollars to a Congolese military officer
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Criminal/Regulatory action 1.Regulators have inadequate
resources and/or inclination 2.Criminal standard of proof.
3.Criminal penalties = inadequate deterrent. 4.Liability of
individual directors/managers may be hard to establish, legally.
5.No extra-territorial enforcement available in MNC home courts for
harm caused in developing countries
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At Prieska, the conditions around and about the mill are not
good. The crusher is out of doors. Fibre comes in on the windward
side of the mill and is crushed in the open. We saw this opening on
several occasions and it was obvious that quite a cloud of dust was
being produced and being blown away by a fairly strong wind towards
the townthe mixer was raised from the floor of the general
warehouse area and had a very dusty platform. Men were working
below in a rain of dust. (1962 Dr WJ Smither Chief Medical Officer
Cape plc)
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Civil cases 1.Nature, scale and complexity of cases - public
funding virtually impossible. 2.Victims cannot afford to pay
lawyers and experts. 3.Big law firms conflicted
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Chronology of UK MNC tort claims 19951998: Connelly v RTZ
Corporation Plc (Namibian uranium mine and throat cancer) 19951997:
Ngcobo & Ors v Thor Chemicals Holdings Ltd & Desmond Cowley
(mercury poisoning of South African workers) 19972000: Sithole
& Ors v Thor Chemicals Holdings & Desmond Cowley (mercury
poisoning of South African workers) 1997-2003: Lubbe & Ors v
Cape Plc (7,500 South African asbestos miners and local residents)
2006-2009: Motto v Trafigura (30,000 Cote DIvoire residents
alleging personal injuries from toxic waste) 2007present: Ocensa
Pipeline litigation v BP Oil Exploration (claim by 73 Colombian
campesinos for for damage to land) 2009July 2011: Guerrero v
Monterrico Metals Plc (claim for torture/mistreatment of 33
indigenous Peruvian environmental protesters) 2011present: Bodo
Community v Shell Petroleum Development Company (Nigeria) Ltd
(SPDC) (claim by a Nigerian fishing Community in Ogoniland for
environmental damage caused by oil leaks) 2011-present: Vava &
Others v Anglo American South Africa Ltd (South African gold miners
silicosis mass claim in England) 2013-presentKesabo & 11 Others
v African Barrick Gold Plc & NMGML Ltd (claim for Tanzanian
villagers/prospectors shot by police guarding mine) 2013present
Condori Vilca & Others v Xtrata Ltd & Xtrata Tintaya SA
(claim by 21 Peruvians allegedly shot by police and/or mine
security)
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Key issues in civil cases in MNC home courts 1.Jurisdiction
2.Corporate veil 3.Access to documents 4.Damages 5.Class/group
action procedures 6.Funding/legal representation
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Jurisdiction 1.Forum non conveniens US, Canada, Australia
2.Bhopal vs Union Carbide; Connelly v RTZ ; Cape plc 3.Article 2
Brussels I Regulation (EU) 4.Local subsidiary as a
co-defendant
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..the availability of financial assistance in this country
coupled with its non- availability in the appropriate forum, may
exceptionally be a relevant factor in this context. The question,
however, remains whether the Plaintiff can establish that
substantial justice will not in the particular circumstances of the
case be done if the plaintiff has to proceed in the appropriate
forum where no financial assistance is available Connelly v RTZ
HL
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Brussels I Regulation on jurisdiction and the recognition of
judgments in civil and commercial matters Article 2 1. Subject to
this Regulation, persons domiciled in a Member State shall,
whatever their nationality, be sued in the courts of that Member
State (Owusu v Jackson ECJ 2005) Article 60 1. For the purposes of
this Regulation, a company or other legal person or association of
natural or legal persons is domiciled at the place where it has
its: (a) statutory seat, or (b) central administration, or (c)
principal place of business
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MNC duty of care 1.Shell, Trafigura 2.Parent company cases
3.Security & human rights cases 4.Rome II Regulation
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.in appropriate circumstances the law may impose on a parent
company responsibility for the health and safety of its subsidiarys
employees. Those circumstances include a situation where, as in the
present case, (1) the businesses of the parent and subsidiary are
in a relevant respect the same; (2) the parent has, or ought to
have, superior knowledge on some relevant aspect of health and
safety in the particular industry; (3) the subsidiarys system of
work is unsafe as the parent company knew, or ought to have known;
and (4) the parent knew or ought to have foreseen that the
subsidiary or its employees would rely on its using that superior
knowledge for the employees protection. For the purposes of (4) it
is not necessary to show that the parent is in the practice of
intervening in the health and safety policies of the subsidiary.
The court will look at the relationship between the companies more
widely. The court may find that element (4) is established where
the evidence shows that the parent has a practice of intervening in
the trading operations of the subsidiary, for example production
and funding issues. Chandler v Cape plc - Court of Appeal - April
2012
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Access to documents 1.Importance especially in parent co cases
2.US, UK 3.Other EU 4.Reversal of burden of proof
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Class/group actions 1.Importance is mass claims 2.Opt out/Group
actions 3.Impact on cost
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Funding/legal representation 1.Scale & complexity of MNC
cases 2.Feasibility of public funding 3.Lawyers on contingency fees
risks & incentives 4.Relationship with issues of jurisdiction,
availability of cause of action, documents and magnitude of damages
(Rome II) 5.Role of litigation funders
