Arica Victims v Boliden Mineral (Sweden). Lex causae and export of toxic waste. Relevant for the business and human rights /CSR debate.

Update 5 February 2021 having now the benefit of access to an English translation of the Court of Appeal judgment (which incorporates large sections of the first instance judgment), here’s some clarification. The first instance judgment seems to have held that Rome II does not apply ratione temporis; that Swedish SC authority had held the ordinarily applicable rule to be locus delicti commissi; that that authority however had not expressly considered the situation where ldc and locus damni differ; and that, ia referring to the Rome II regime, a victim friendly approach should apply which it held in this case to lead to locus damni, being the law of the victim’s domicile which would benefit it mostly, so the ruling suggested, for familiarity reasons. The first instance court then held that lex causae to include statutes of limitation which looked less beneficial (5 years) at first sight however which then profited from a Chilean SC 2010 ruling in the Santa Laura case, in which the SC essentially held that for torts that continue to cause injury, the limitation period has not yet started, regardless of when the actions have become known to the injured parties. No claims therefore were held to be statute-barred. Burden of proof for the causal link was held not to be part of the lex causae, instead being procedural hence subject to Swedish law, lex fori. The Court of Appeal at 9.6, in its summary of the first instance judgment, then reports the first instance judges held that intervening factors, such as post-dumping construction and the use by residents of wet sludge as backfill material, was not reasonably foreseeable by Boliden, hence disrupting liability, and that for the period before that, safe levels of presence of arsenic in injured parties’ blood lay a lot higher than suggested by claimants.

Whether the first instance judges had taken proper account of Chilean case-law on the arsenic toxicity issue was  an important part of the appeal, however the Court of Appeal as reported in my original post, below, held [p.3] that the first instance judges’ finding of a favor victimis rule had no basis in the SC’s authorities and that locus delicti commissi had to be applied [p.5]. In determining ldc, the center of gravity was held to have to be followed, ‘This center may be established with regard to where the qualitatively important elements have their focus rather than according to quantitative criteria’. LDC was therefore held to be Sweden. This is a finding of great interest to the environmental law and human rights litigation. The Court of Appeal, too, held [p.7] that lex causae includes statutes of limitation. This is where the action then derailed. The CA found [p.9] that the limitation period has to be calculated from the latest time when measures to prevent the injury could have been taken. This, it held, fell sometime during 1999 (when, following instruction by the Chilean authorities, the sludge was moved a short distance away from the initial site).

Original post__________________

I reported earlier on the decision at first instance in Arica Victims v Boliden Mineral. The Court of Appeal has now reversed the finding of Chilean law as lex causae, opting instead for Swedish law. Lindahl has good review here and I rely on it quite heavily for I do no speak Swedish.

Boliden Mineral exported toxic waste to Chile in the ’80s, prior to either Basel or EU or OECD restraints (or indeed bans) kicking in. A first issue for consideration was determination of lex causae. Rome II does not apply ratione temporis (it only applies to tortious events occurring after its date of entry into force) – residual Swedish private international law applies. My understanding at first instance was that the applicable law rule referred to lex loci damni, Chile. The Court of Appeal has gone for lex loci delicti commissi: whether this was by use of an exception or whether the court at first instance had simply misunderstood Swedish PIL, I do not know.

Having opted for lex loci delicti commissi, the Court of Appeal then considered where this was. Readers of the blog will know that this is relevant for CSR /business and human /environmental rights discussions. Lindahl’s Linda Hallberg and Tor Pöpke summarise the court’s approach:

In order to determine which country’s law applied to the case, the court examined a sequence of events that had influenced, to varying degrees, what had led to the alleged damage. According to the court, the decisive factor in the choice of law were acts and omissions that could be attributed to the Swedish mining company, as the case concerned this company’s liability for damages.

Instead of determining the principal location of the causative events using quantitative criteria, the court considered it to be where the qualitatively important elements had their centre of gravity. Further, in contrast with the district court’s conclusion, it held that the Swedish mining company’s alleged negligence had its centre in Sweden and therefore Swedish tort law should be applied in this case (the law of the place in which a delict is committed).

Unlike more ‘modern’ CSR cases the fact do not concern mother /daughter company relations yet the considerations of locus delicti commissi are nonetheless interesting.

The Court of first instance had employed Chilean’s longer statute of limitation. The Court of Appeal tried to stretch Sweden’s shorter one of 10 years (the case concerns a potentially tortious act which occurred more than 30 years ago): any subsequent damage that had been caused by the mining company’s failure to act during the period after the toxic waste had been shipped to Chile would advance the starting point for the limitation period. However this was at the latest 1999 and the 2013 action therefore had been taken too late.

On 25 June last the Supreme Court rejected further consideration, the Court of Appeal’s finding therefore stands.

Geert.

(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 4, Heading 4.6.3, Chapter 8.

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