The Future of Tort Litigation against Transnational Corporations in the English Courts: Is Forum [Non] Conveniens Back?

2021 ◽  
pp. 1-24
Author(s):  
Ekaterina ARISTOVA
Keyword(s):  
Human Rights ◽  
Transnational Corporations ◽  
Private International Law ◽  
Human Rights Abuses ◽  
High Profile ◽  
The United Kingdom ◽  
The Supreme Court ◽  
Forum Non Conveniens ◽  
Tort Litigation ◽  
Parent Companies

Abstract This article examines private international law issues raised by civil liability cases commenced in the courts of home states against transnational corporations concerning their alleged involvement in the overseas human rights violations. These claims have been particularly successful in the United Kingdom, where in the last several years the framework of Brussels I Regulation (recast) and English common law rules made it appropriate for the English courts to assert jurisdiction over corporate defendants without the possibility of subjecting claims against the parent companies to forum non conveniens control. In 2019, however, the Supreme Court in a high-profile case Lungowe v Vedanta Resources plc expressed doubts as to whether England should always constitute a proper forum for litigating overseas wrongs arising from the operations of British multinationals. The article aims to assess how the search of the most appropriate forum to litigate the dispute might impact victims of business-related human rights abuses in the post-Brexit environment and propose avenues for legal change.

Perspectives on the Development and Significance of Tort Litigation against Multinational Parent Companies

2021 ◽  
pp. 24-57
Author(s):  
Richard Meeran
Keyword(s):  
Human Rights ◽  
United Kingdom ◽  
Parent Company ◽  
Cross Border ◽  
Business And Human Rights ◽  
The United Kingdom ◽  
Forum Non Conveniens ◽  
Tort Litigation ◽  
Concurrent Development ◽  
Parent Companies

Richard Meeran explains the genesis of tort-based multinational human rights litigation in the United Kingdom, including some striking features, events, and judgments in original cases of Connelly v. Rio Tinto, Ngcobo v. Thor Chemical, and Lubbe v. Cape plc cases and their impact on the development of English law relating parent company liability leading to the precedents in the Chandler v. Cape, Vedanta, and Okpabi v. Shell cases. He offers insights on strategic litigation from these and other multinational cases. He outlines the key legal, procedural, and practical barriers to justice for victims, with particular emphasis on forum non conveniens, funding litigation, and the interrelationship of the barriers in deterring victims’ lawyers. He considers the concurrent development and integration of multinational human rights litigation and business and human rights including in the UN Guiding Principles. He outlines the potential for cross-border collaboration between lawyers to pursue cases in multinational host States.

Multinational Human Rights Litigation in the UK: A Retrospective

2021 ◽  
pp. 1-15
Author(s):  
Richard MEERAN
Keyword(s):  
Human Rights ◽  
Duty Of Care ◽  
Access To Justice ◽  
Applicable Law ◽  
The United Kingdom ◽  
Forum Non Conveniens ◽  
Tort Litigation ◽  
Concurrent Development ◽  
Key Features ◽  
The Uk

Abstract This article provides an overview of the key features of multinational human rights litigation in the United Kingdom, including the development of a tort-based parent company duty of care, the principles relating to forum non conveniens and applicable law and other key procedural and practical barriers to victims’ access to justice. The article highlights some of the actual and perceived limitations of litigation. It also considers the concurrent development of and mutually reinforcing relationship between MNC tort litigation and the field of Business & Human Rights.

scholarly journals Litigating Economic, Social and Cultural Rights against Transnational Corporations in Indonesian Court

2017 ◽  
Vol 3 (3) ◽  
pp. 246
Author(s):  
Iman Prihandono
Keyword(s):  
Human Rights ◽  
Transnational Corporations ◽  
Court Decisions ◽  
Private Business ◽  
Human Rights Abuses ◽  
Cultural Rights ◽  
Challenges And Opportunities ◽  
Business Contract ◽  
Judicial Remedy ◽  
Private Corporations

States should take appropriate steps to ensure the effectiveness of domestic judicial mechanisms when addressing business-related human rights abuses. These steps may include ways to reduce legal, practical and other relevant barriers that could lead to a denial of access to remedy. To a certain degree, these problems exist in Indonesia’s judicial remedy mechanism. This article examines court decisions in five cases involving Transnational Corporations (TNCs). These decisions are examined to identify challenges and opportunities in bringing a case on ESC rights violations against TNCs. It is found that claim on ESC rights violation may be brought to the court, and the court has jurisdiction to entertain the case. However, of the five cases filed against TNCs, only in one case has the court decided in favour of the plaintiff. Most of the cases were rejected on procedural matters. This situation suggests that it remains burdensome for the victims of ESC rights violations to seek remedy at the court. There are procedural burdens that has to be faced by plaintiff when bringing ESC rights case against corporations, particularly TNCs. Nevertheless, there are new develop-ments in relation with pursuing ESC rights in court. One of the important development is private business contract between the govern-ment and private corporations may be annulled by the court, if the exercise of the contract would violate the government's obligation to fulfil human rights of the citizens

Human Rights Litigation against Multinationals in Practice

2021 ◽  
Keyword(s):  
Human Rights ◽  
Legal Aspects ◽  
Collective Actions ◽  
Human Rights Abuses ◽  
Applicable Law ◽  
Business And Human Rights ◽  
Global North ◽  
Formed Part ◽  
Parent Companies

This book reviews the current position in this field, which has developed over the past 25 years, designed to hold multinationals to account, legally, for human rights abuses in the Global South. The authors are practising lawyers who have litigated and led prominent cases of legal significance in this field. Although the focus is on the Global North, where most of the cases have been brought—United Kingdom, United States, Canada, Australia, France, Netherlands, and Germany—there is also a chapter on South Africa. The cases cited include claims against parent companies for harm caused by subsidiary operations, claims for corporate complicity in violations perpetrated by States, and claims arising in a supply chain context. Whilst other books have included consideration of the legal aspects of many of the cases, the focus here is on the interrelated strategic and practical, as well as legal, considerations on which viability and prospects of success depend. In addition to questions of jurisdiction, applicable law, and theories of liability, obstacles to justice concerning issues such as access to information, collective actions, witness protection, damages and costs, and funding regimes (including a specific chapter on litigation funding), and issues relating to public pressure and settlement, are discussed. Although most of the authors act for victims, there is a substantial chapter providing the perspectives of business. Since this area of litigation has developed concurrently with, and has formed part of, the rapidly mushrooming field of business and human rights, the contextual relevance of the UNGPs is considered.

Sexual Orientation as a Human Right

2015 ◽  
pp. 70-85
Author(s):  
Despina A. Tziola
Keyword(s):  
Human Rights ◽  
Sexual Orientation ◽  
Sexual Identity ◽  
Complex Problem ◽  
Same Sex ◽  
Human Right ◽  
Cultural Rights ◽  
The United Kingdom ◽  
Sexual Orientations ◽  
The Supreme Court

In this chapter, the authors examine the matter of sexual orientation as a human right. Human rights violations take many forms, from denials of the rights to life to discrimination in accessing economic, social, and cultural rights. More than 80 countries still maintain laws that make same-sex consensual relations between adults a criminal offence. Those seeking to peaceably affirm diverse sexual orientations or gender identities have also experienced violence and discrimination. A gay man was entitled to live freely and openly in accordance with his sexual identity under the Refugee Convention (“the Convention”) and it was no answer to the claim for asylum that he would conceal his sexual identity in order to avoid the persecution that would follow if he did not do so. The Supreme Court of the United Kingdom had to solve this complex problem as many issues were raised in the hearing.

Liability of Multinational Corporations in Canada for International Human Rights Violations

2021 ◽  
pp. 113-139
Author(s):  
Bruce W. Johnston
Keyword(s):  
Human Rights ◽  
Multinational Corporations ◽  
Civil Law ◽  
Access To Justice ◽  
International Human Rights Law ◽  
International Human Rights ◽  
Human Rights Abuses ◽  
Class Actions ◽  
Forum Non Conveniens ◽  
International Human

Bruce W. Johnston reviews the current state of play in Canada regarding the imposition of civil liability on multinationals for human rights abuses occurring overseas. He explains the bijural nature of the legal system and the consequential developments of civil law in Quebec and common law elsewhere. He outlines, by reference to case law, the relevant law on jurisdiction, including in class actions, and application of forum non conveniens, forum necessitatis, and choice of law, under common and civil law. Regarding causes of action, he considers the corporate veil hurdle and important judgments on direct liability of the parent company, in Choc v. Hudbay Minerals and most strikingly, the direct application of customary international human rights law by the Supreme Court in Nevsun. Equally important in terms of practical access to justice, the chapter outlines the rules on procedures relating to opt-out class actions, legal costs, including litigation funding.

What’s Wrong with (Some) Judges? Al-Skeini, Al-Jedda, Smith, and the Fog of War

2020 ◽  
pp. 234-267
Author(s):  
Nigel Biggar
Keyword(s):  
Human Rights ◽  
Natural Rights ◽  
Fragile States ◽  
Military Effectiveness ◽  
International Treaties ◽  
The United Kingdom ◽  
European Court ◽  
The Supreme Court ◽  
Political Conditions ◽  
The Military

What is wrong with rights might lie in several places. Some accuse the very concept of a right belonging to an individual as a kind of property. Chapter 6 considered this charge and found it wanting. Instead, Chapters 5, 7, 8 and 9 identified problems in misleading connotations of talk about ‘natural rights’, the failure to reckon with the contingency of rights upon economic and political conditions, and the importation of what is paradigmatically a legal idea into ethical deliberation. An additional possibility is that problems lie not only in concepts of rights, but also in the way in which judges treat them. This is the topic of this chapter and the following one. The present chapter examines recent decisions of the European Court of Human Rights (Al-Skeini [2011], Al-Jedda [2011]), and the Supreme Court of the United Kingdom (Smith [2013]), which threaten the UK’s military power. It concludes that, in these cases, the jurisprudence of the European court is vitiated by an imprudence born of a limited historical and political imagination, a culture of risk-aversion, and an ideological rights-fundamentalism. Such imprudent jurisprudence serves to weaken the military effectiveness of European States Party and their ability to support politically fragile states, to undermine states’ confidence in international treaties, and to provoke calls for states’ withdrawal from the Convention altogether.

scholarly journals ABORTION IN NORTHERN IRELAND AND THE EUROPEAN CONVENTION ON HUMAN RIGHTS: REFLECTIONS FROM THE UK SUPREME COURT

2019 ◽  
Vol 68 (2) ◽  
pp. 477-494
Author(s):  
Bríd Ní Ghráinne ◽  
Aisling McMahon
Keyword(s):  
Human Rights ◽  
United Kingdom ◽  
Northern Ireland ◽  
Supreme Court ◽  
International Law ◽  
European Convention ◽  
The United Kingdom ◽  
The Supreme Court ◽  
Uk Supreme Court ◽  
The Uk

AbstractOn 7 June 2018, the Supreme Court of the United Kingdom (UKSCt) issued its decision on, inter alia, whether Northern Ireland's near-total abortion ban was compatible with the European Convention of Human Rights (ECHR). This article critically assesses the UKSC's treatment of international law in this case. It argues that the UKSCt was justified in finding that Northern Ireland's ban on abortion in cases of rape, incest, and FFA was a violation of Article 8, but that the majority erred in its assessment of Article 3 ECHR and of the relevance of international law more generally.

Reviving Human Rights Litigation After Kiobel

2013 ◽  
Vol 107 (4) ◽  
pp. 858-863 ◽  
Author(s):  
Vivian Grosswald Curran ◽  
David Sloss
Keyword(s):  
United States ◽  
Human Rights ◽  
Supreme Court ◽  
The United States ◽  
Human Rights Abuses ◽  
Foreign Countries ◽  
The Supreme Court ◽  
Death Knell ◽  
Alien Tort Statute

In Kiobel v. Royal Dutch Petroleum Co., the Supreme Court held that “the presumption against extraterritoriality applies to claims under the [Alien Tort Statute (ATS)], and that nothing in the statute rebuts that presumption.” The Court preserved the possibility that claims arising from conduct outside the United States might be actionable under the ATS “where the claims touch and concern the territory of the United States ... with sufficient force to displace the presumption against extraterritorial application.” However, the Court’s decision apparently sounds the death knell for “foreign-cubed” human rights claims under the ATS—that is, cases in which foreign defendants committed human rights abuses against foreign plaintiffs in foreign countries.

Foreign Direct Liability Claims in Sweden: Learning from Arica Victims KB v. Boliden Mineral AB?

2014 ◽  
Vol 83 (4) ◽  
pp. 404-438 ◽  
Author(s):  
Rasmus Kløcker Larsen
Keyword(s):  
Human Rights ◽  
Transnational Corporations ◽  
Environmental Damage ◽  
Access To Justice ◽  
Legal Basis ◽  
Applicable Law ◽  
Court Action ◽  
Environmental Damages ◽  
Liability Claims ◽  
Parent Companies

On 12 September 2013 what may be the first foreign direct liability claim in Sweden was filed in the County Court of Skellefteå, a court action reflective of a growing wave of civil liability suits in European jurisdictions to hold transnational corporations accountable for human rights violations and environmental damages. This article examines the feasibility of foreign direct liability claims in Sweden, focusing on enabling conditions with regards to jurisdiction, collision rules and applicable law, substantial legal basis, procedural and practical circumstances, and the theories by which parent companies can be held liable for negligence in supervising acts of subsidiaries and contractors. It is demonstrated that foreign direct liability claims on environmental damage are indeed possible in Sweden, albeit with considerable constraints, primarily of a procedural and financial character. The conclusion provides some cautious remarks on the merits of the claim against Boliden and the reform options available to a Swedish government committed to improving the access to justice for victims of violations perpetuated by Swedish companies, their subsidiaries and contractors.

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