Liability of Multinational Corporations in Canada for International Human Rights Violations

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.

Human Rights Litigation against Multinationals in Practice

Daniel Leader reviews multinational human rights cases that have developed English law on jurisdiction and parent company liability. He considers the first batch of parent company cases that started the ball rolling in the 1990s, leading to the establishment of the parent company duty of care principle in Chandler v. Cape. He explains the principles of the 2019 and 2021 Supreme Court decisions in Lungowe v. Vedanta and Opkabi v. Shell, and the first trial of a parent company case, where an international auditor was found in breached of its duty to act ethically. The key principles developed on jurisdiction and forum non conveniens are explained. He reviews security and human rights cases, including recent settlements against Gemfields and Kakuzi. He also reviews supply chain cases arising from shipbreaking and child labour on Malawian tobacco farms. Procedural and practical issues concerning discovery, group actions, witness anonymity, and funding and viability of cases are outlined.

International Human Rights Litigation in the United States

Paul Hoffman reviews the position in the United States regarding the imposition of liability on multinationals for human rights abuses occurring overseas. He focuses on corporate complicity cases brought under the Alien Tort Statute over the past 25 years. By reference to key decisions, he charts the development of the law which had had initially held out considerable promise for human rights victims but which has been gradually whittled away by decisions such as Kiobel in 2012 and Jesner in 2018. The scope of the statute and the concepts of aiding and abetting liability, the presumption against extraterritoriality, ‘touch and concern test’ and ‘foreign sovereign immunity’ are explained. The decision in Doe v. Nestle has resolved many of the uncertainties. Potential liability under various statutes to protect victims of torture, trafficking, terrorism, and corruption are outlined as is the experience of common law tort claims and forum non conveniens.

The Litigation Landscape of Business and Human Rights

Robert McCorquodale outlines the wider business and human rights context of human rights litigation against multinationals and explains key concepts that arise. He highlights differences between civil law and common law systems in terms of sources of law and procedures, and between criminal and civil claims against multinationals. The concepts of separation of corporate identity and the tort law duty of care developed in the English cases are considered. The principles of European law on jurisdiction over corporations and choice of law are explained. The relevance, in multinational human rights cases, of public international law and sovereignty issues in forum non conveniens disputes, claims in the United States under the Alien Tort Statute, and by direct application in States such as Canada and the Netherlands, is discussed. The important contextual backdrop of developments such as the United Nations Guiding Principles (UNGPs), the Organisation for Economic Co-operation and Development (OECD) Guidelines and other international standards is also highlighted.

Perspectives on the Development and Significance of Tort Litigation against Multinational 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.

Civil Liability in Australia for International Human Rights Violations

Peter Cashman reviews the current state of play in Australia regarding the imposition of civil liability on multinationals for human rights abuses and environmental damage occurring overseas. He considers cases based on a direct tort law-based duty of care and the relevance in that regard of developments in English law and also environmental damage associated with the operations of Australian multinationals, in particular the historic OK Tedi litigation against BHP Billiton and the recent class action trial of the claim by Indonesian seaweed farmers arising from the Montara oil spill. Important aspects of the law on jurisdiction, forum non conveniens, and choice of law and the opt-out class action regime in federal and State courts are outlined. The rules relating to the running of cases by private law firms and third party litigation funders on the basis of contingency fee agreements are explained

Multinational Human Rights Litigation in the UK: A Retrospective

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.

Forum Non Conveniens: Now We Are Much More Than Ten

This essay addresses the development of the forum conveniens doctrine across the common law world, in particular in the United Kingdom, United States and Australia, and examines in particular the role played by public interest factors in light of technological developments marginalising the significance of the parties’ private interests.

Jurisdiction Limitation of National Courts with Respect to Civil Cases or Matters Involving Foreign Elements in Accordance with United States Laws and Vietnamese Law

Determination of limitation of jurisdiction of national courts with respect to civil cases or matters involving foreign elements has become an important aspect of judicial practice around the world as with the growing cross-border cooperation. The study on the subject matter helps to promote the efficiency in the civil procedure. On the one hand, it provides legal ground for national courts to determine their jurisdiction over the related civil cases or matters, and helps the plaintiff to initiate the legal action in the national court with competent to accept the case on the other. This article will analyse the U.S. laws as well as judicial experience in U.S. national courts on limitation of their jurisdiction in civil cases or matters involving foreign elements. It will focus on the cases in which the jurisdiction of the court is granted by mutual agreements of the relevant parties, frauds, force, immunities, forum non conveniens, limits imposed by the forum or the laws of the states where the transactions have been conducted. It will be followed by the critical assessments on the status of relevant laws and regulations of Vietnam and some recommendations for future development.

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

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.