Maceió victims v Braskem. Rotterdam court refuses application for Article 34 lis pendens stay.

The (first instance) court at Rotterdam has upheld anchor jurisdiction and refused an application for an Article 34 Brussels Ia stay. The case concerns victims of earthquakes in the Brasilian Maceió region, which they argue are caused by the mining activities of Braskem. The judgment is only available in Dutch.

The Dutch anchor defendants are intra-group suppliers of ia specialty chemicals, and finance. The main target of the claim of course is the Brasilian mother holding. Whether the latter can be brought into the proceedings is not subject to Brussels Ia but rather to Dutch residual rules. However just as in e.g. Shell, the Dutch rules are applied with CJEU authority on Article 8(1) Brussels Ia firmly in mind. In much more succinct terms than the English courts in similar proceedings, the Dutch courts [6.16] finds the cases so ‘closely related’ that it is expedient to hear the cases together. It emphasises that while the respective roles and liabilities of the various undertakings concerned is likely to be very different, there is a bundle of legal and factual questions that runs jointly throughout the various claims. [6.18] it emphasises that the decision to base the European headquarters of the group, and the finance activities at Rotterdam, implies that the concern reasonably could have foreseen it would be sued here.

Equally succinctly [6.19 ff] the Court rejects the argument that the use of the Dutch corporations as anchor defendants is an abuse of process. Such abuse must be narrowly construed and  it is far from obvious that the claim against the anchors is entirely without merit.

Seemingly defendants tried to argue forum non conveniens however [6.23] the court points out such construction does not exist in The Netherlands and obiter it adds (like the Court of Appeal in Municipio) that practical complications in either hearing of the case or enforcement of any judgment are not a reason to dismiss jurisdiction.

Request for a stay in the procedures viz the Brasilian corporations [6.26] is rejected on (Dutch CPR) lis pendens rules for the parties in the proceedings are not the same. Article 34 is dealt with in two paras (quite a contrast with the E&W courts). The pending procedures vis-a-vis Article 34 are not, it seems, Brasilian Civil Public Actions – CPAS (these were at issue in Municipio de Mariana (of some interest is that the law firm behind the claims is the same in both cases)). Rather, pending liquidation proceedings are considered as the relevant assessment points. [6.28] obiter the court finds that the cases are most probably not related. It grounds  its decision however on a stay not being in the interest of the sound administration of justice. The court holds that the Brasilian proceedings are not likely to be concluded within a reasonable time. Defendants’ commitment at hearing to speed up the process in Brasil, are met with disbelief by the court given the defendants’ attitude in the Brasilian procedures hitherto.

[6.32] permission to appeal the interim judgment on jurisdiction is denied. This means that, like in Airbus, discussion on the private international law issues is likely only to resurface at the stage of appealing the judgment on the merits, too.

An important judgment: other than Petrobas, there are to my knowledge no continental judgments discussing Article 34 in this intensity (there are E&W judgments, as readers of the blog will know).

Geert.

See also ‘Dude, where’s my EU court? On the application of Articles 33-34 Brussels Ia’s forum non conveniens- light rules’, Journal of Private International Law, forthcoming 2022.

 

Municipio de Mariana v BHP. Questions on Brussels Ia’s lis pendens rules viz third states remain. Yet overall approach to environment, human rights suits against corporations in their domicile, to be applauded.

Municipio De Mariana & Ors v BHP Group (UK) Ltd & Anor [2022] EWCA Civ 951 (background to the case here) is the appeal against the stay (and partial strike-out), on forum non conveniens, A33-34 Brussels Ia and case-management grounds ordered by Justice Turner. The Court of Appeal has overturned all three reasons for a stay. Bar appeal with the Supreme Court (which the defendants are likely to seek) the claimants may now bring their claim in the courts of England and Wales.

For the benefit of full disclosure I should add I am instructed for claimants in the case; this post however does not speak for claimants or co-counsel in the case and is merely my academic view on the judgment.

The judgment runs to 107 pages (not excessive given the issues and facts covered). There is little point in me rehashing it all (again, reference to my previous post may be useful). 40 pages are spent describing the applicable law in Brasil and the various proceedings underway there. This is of particular importance seeing as the crux of all three defences advanced is that the proceedings are already underway in Brasil and should not be duplicated by an English procedure.

In the main:

Abuse is dealt with [170] ff, with the key points for reversal listed [179] and the CA’s own analysis detailed thereafter, summarising in [234] ff.

Of particular note here is the rebuke of Justice Turner’s finding of ‘unmanageability’ of proceedings (which the CA as such does not believe will be the case) having dominated his subsequent findings on other elements of abuse, and the use of forum non conveniens criteria for the assessment of abuse.

[182] Consideration should have been made of the question of the availability of full redress in Brazil. To those following business and human rights litigation, this will be a welcome finding. [186] Support for manageability of proceedings not having a place in the abuse assessment (other than [187] if the claimant were to have vexatiously made the proceedings unmanageable himself), was found in Mastercard v Merricks [2020] UKSC 5.

[190] discussion of what Turner J at the abuse level,  saw as complications arising out of the existence of parallel proceedings in Brazil, already indicate the direction the Court took on the forum non and A34 issue: the many differences between the English and the Brazilian proceedings.

The Article 34 Brussels Ia application is discussed [237] ff and is of particular relevance to readers of the blog.

Firstly [256] the Court of Appeal settles for now the Privatbank /Euroeco discussion on ‘expediency’ (see also ia SCOR v Barclays) in favour of the former: What is required to fulfil A34(1)(a)’s condition is that it must be desirable for the two actions to be heard and determined together in order to avoid the risk of irreconcilable judgments, irrespective of whether that is a practical possibility. (Claimants have reserved the right to contest this should the matter go before the Supreme Court).

Further [257] the test of relatedness for the purposes of A34 is held by the CA to be a broad test: [243] per Tesauro AG in C-406/92 The Tatry, whenever the judge seized of the stay request considers that the reasoning adopted by the court hearing the earlier proceedings may concern issues likely to be relevant to its own decision, the cases can be said to be related. This is opposed to the narrow approach in the House of Lords Sarrio SA v Kuwait Investment Office [1991] AC 32: there the HoL held that for there to be a risk of irreconcilable judgments the inquiry is limited to “primary” issues which are those necessary to establish the cause of action, and does not include issues which the court might or might not decide and which would not be essential to its conclusion.

On the condition ‘that the court of the third State will give a judgment capable of recognition‘, at the hearing the question was asked whether a twofold condition exists, namely (i) that a judgment was expected as a matter of fact and (ii) that the expected judgment was one which was capable of recognition and, where applicable, enforcement. The Court [260] supports the view that only the second (ii) condition applies. I do not think that is correct and I am not convinced by the Court’s travaux analysis on this point [266] – I detail this in my forthcoming paper in the JPIL. As for that second condition, the CA holds [269] that ‘the exercise at this stage is a conceptual one, looking at the type of judgment to which the third state pending action may give rise, and evaluating whether it attracts recognition, or where applicable enforceability.’

Necessity for the proper administration of justice’ is dealt with [273] ff (although it confusingly includes discussion of more than just this ultimate A33-34 condition), starting with the discussion whether a stay was available or could be justified on a “consolidation” basis (effectively, an allocation of jurisdiction [275], or on a “wait and see” basis [temporary case-management: wait and see whether and to what extent the outcome of the case ex-EU affects the action in the member state]. [277] Underhill LJ takes a holistic approach: Does waiting for the outcome [of the Brazilian proceedings held to be related] give rise to advantages which sufficiently outweigh any disadvantages such that a stay is necessary? [279] The CA takes a broad approach to the issues that might be considered, including issues classic to a forum non conveniens analysis. I believe that is right, with the important caveat that A34 must not effectively be conflated with forum non (which is what the first instance judge had effectively done) (compare Ness).

[282] the Court takes a formalistic (and correct) view on the ‘related proceedings’ and their being ‘pending’:

for the purposes of the article 34 application, the nature and extent of overlap which falls to be considered when addressing whether and to what extent there is a risk of irreconcilable judgments, and in considering whether that risk weighs in favour of a stay being necessary for the proper administration of justice, is limited by reference to that which might be decided in the [pending Brazilian proceedings].

In particular, an advantage eg in winding-up proceedings viz the defendants or related undertakings, which could be obtained down the line from the outcome of the related proceedings, would not be caught by the comparative overlap and the likelihood of relatedness therefore is seriously reduced ([283] contrary to Turner J’s finding that that the list of areas in which potentially
irreconcilable judgments are liable to arise was “almost endless”).

[291] ff the CA makes its own assessment of the ‘proper administration of justice’ requirement given the judge’s core mistakes (particularly, his abuse conflation and the consideration given to future proceedings which are not pending).

[298] The CA holds that the continuation of the claim against BHP Australia (for which later in the judgment it finds that this is not barred on forum non grounds) in and of itself argues against an A34 stay (and that relevant parts of Lord Briggs’ speech in Vedanta do not change that).

Obiter [300] ff it lists other factors against a stay: [302] there is a real possibility that final resolution of the related BRA proceedings,  if they resume at all, is well over a decade away; [303] ‘For there to be a further delay of years, and quite possibly over a decade, before [E&W proceedings] could resume would cause very substantial prejudice to the claimants in obtaining relief, and would be inimical to the efficient administration of justice as a result of all the well-known problems which delay brings to the process’; [304] ff there are many disadvantages to the BRA proceedings including that these will not address the liability of the defendants in the E&W proceedings; [308] the degree of overlap between the proceedings is limited.

The forum non application is highly relevant given the English courts’ preponderant reliance on it, outside the BIa context, following UKSC Brownlie. Of note here is ia [345] the unrealistic prospect of the alternatives being suggested – I will leave the further forum non analysis to blogs less focused on European conflict of laws.

Rejection of a case-management stay is done succinctly, with Underhill LJ noting ia [374] that such stay would be incompatible with A34 and A4 BIa.

 

All in all I do not agree with each of the Court’s findings on tenets of A34, however in general the Court’s application reflects the correct approach to the Article, which very much makes a stay the exception.

Geert.

 

See also ‘Dude, where’s my EU court? On the application of Articles 33-34 Brussels Ia’s forum non conveniens- light rules’, Journal of Private International Law, forthcoming 2022.

Alame: Case management in yet another oil spill litigation against Shell.

Alame & & Ors v Royal Dutch Shell Plc & Anor [2022] EWHC 989 (TCC) is is a preliminary case-management order in yet another case where Nigerian claimants are suing Shell for environmental pollution in the Niger Delta.

The claims arise out of oil spills that have occurred from oil pipelines and associated infrastructure operated in the vicinity of communities in Rivers State in the Niger Delta, causing environmental damage. The Claimants’ case is that the Defendants failed to prevent, mitigate or remediate the oil contamination and they are liable to compensate the Claimants in respect of harm suffered by affected individuals and communities. The Defendants’ case is that the major sources of oil pollution are crude oil theft (bunkering) and related oil spills, artisanal refining and oil spills from assets controlled and operated by third parties, matters for which they are not responsible and, in any event, do not give rise to any liability under Nigerian Law.

The claims against the First Defendant, Royal Dutch Shell plc (“RDS”), a UK domiciled company and parent company of the Shell group, are based on common law negligence. The claims against the Second Defendant pipeline operator, The Shell Petroleum Development Company of Nigeria Limited (“SPDC”), a Nigerian registered company and subsidiary of RDS, are based on statutory breaches, common law negligence, nuisance, the classic rule in Rylands v Fletcher and trespass.

The Defendants deny liability for the pollution caused. In particular, it is pleaded that Nigerian public policy and law prescribes that oil operators are not liable to pay compensation in respect of any oil spill caused by illegal third party interference and that there is an exclusive and comprehensive statutory compensation scheme in respect of oil spills from oil pipelines and ancillary infrastructure. Further, the alleged breaches of statutory duty, negligence, nuisance and other tortious liability are denied. The alleged loss and damage is denied. The losses are too remote and/or constitute pure economic loss. It is denied that the Claimants are entitled to the relief sought. In respect of the Ogale Individuals Claim, it is asserted that a number of the claims are statute-barred.

Jurisdiction it seems, following Okpabi, is not disputed.

The judge has ordered claimants to clarify now in their pleadings, whether through the group statements of case or in the questionnaires and/or pleadings that will be attached to the group registers, the nature of the case to be advanced at trial. In other words they have been instructed to do far more factual (in terms of linking facts to individual claimants etc) material homework before the case can proceed to trial. It is the detail involved in this kind of preparatory work that makes a jurisdiction attractive, or not, for mass claims of this kind and it is generally accepted that the English GLO is not the most encouraging instrument for same.

Geert.

 

Esther Kiobel v Shell. Dutch Court takes strict evidentiary approach in its rejection of Shell Nigeria involvement in bribery.

The Dutch court of first instance held at the end of March (English version of the judgment is here) on the merits of Esther Kiobel’s case against Shell, proceedings which she unsuccessfully tried to bring in the US under the ATS and then pursued in The Netherlands as I reported at the time.

In my earlier post I pointed out that the Dutch court narrowly construed the case that could be pursued in the Netherlands: Only limited claims, of the Nigerian daughter’s involvement in the bribing of witnesses, were allowed to continue. Those claims have now been dismissed.

The judgment is fairly succinct, many points having discussed at length in the interim jurisdictional and case-management decision. Witnesses’ recent interviews (by the Dutch courts, but without cross-examination. Not because it was not offered but because counsel did not feel the need to proceed with it) were cross-checked against earlier statements which had been entered as evidence in the US proceedings. The court [2.26] holds that

the alleged involvement of the SPDC in witness bribery is not proven with the statements of the witnesses produced by the claimants. This is also true when viewing these witness statements in conjunction.

As I pointed out here in reply to Lucas Roorda, if I were claimant’s counsel looking for appeal grounds, I would study the Dutch court’s application of Nigerian common law evidentiary standards for upholding civil liability.

The court’s approach to the witness statements is that they cannot sustain SPDC bribery involvement. The evidence of SPDC staff presence at relevant meetings (often in police stations) is, when not held to be factually (albeit on minor points) contradicted by earlier statements (going back 20 years for some of them), found to be circumstantial only. Witnesses point to people that were referred and /or pointed to when Shell-related employment (as a reward) was discussed, briefcases held by people with the outward, corporate appearance of Shell staff, people driving off in cars with corporate stickers formerly used by Shell. None of this satisfied the court’s evidentiary requirements without however proper discussion of what, under Nigerian law, that standard would require.

Geert.

 

The European Commission’s Corporate Sustainability Due Diligence proposal. Some thoughts on the conflict of laws.

Update06 06 2022 see further comments by Rui Dias here.

I have reported on conflict of laws (jurisdictional and applicable law) angles to the EP’s draft proposals on Corporate Sustainability Due Diligence before. As I discuss in those posts (more analysis is on NOVA’s site here), many of the suggested routes created more difficulties than they solved. In the eventual February proposal (with 71 recitals: that is poor legislative drafting), the conflict of laws ambitions are much reduced. Leigh Day have a good summary of the issues here. Thank you Jorian Hamster for poking me to put my thoughts to paper.

The jurisdictional ambition is now merely expressed in terms of regulatory scope. On p.15 under the proportionality assessment, the proposal justifies its public international scope using the effects doctrine:

The EU turnover criterion for third-country companies creates a link to the EU. Including only turnover generated in the Union is justified since such a threshold, appropriately calibrated, creates a territorial connection between the third-country companies and the Union by the effects that the activities of these companies may have on the EU internal market, which is sufficient for the Union law to apply to third-country companies.

Proposed A2(1) focuses on ‘EU corporations’ (“companies which are formed in accordance with the legislation of a Member State) and proposed A2(2) looks at non-EU corporations (“companies which are formed in accordance with the legislation of a third country”), each with relevant thresholds distinguishing between quantitative (turnover) and qualitative (risk sectors: textiles, agriculture, extractive industries) criteria.

I am not sure why the lex incorporationis is preferred as the trigger criterion. Domicile as defined in Brussels Ia‘s Article 63 could be more attractive, seeing as it captures corporations with statutory seat outside of the EU but with their central administration or principal place of business here.

‘Turnover generated in the EU’ is bound to provoke some discussions however experience from in particular competition law should be able to help here.

The most obvious anchor point for applicable law is proposed A22. This sets out the requirement for Member States to define rules governing the civil liability of the company for damages arising due to its failure to comply with the due diligence requirements, and then suggests in (5)

Member States shall ensure that the liability provided for in provisions of national law transposing this Article is of overriding mandatory application in cases where the law applicable to claims to that effect is not the law of a Member State.

The intention of this Article is to make the national civil liability rules which Member States are due to ensure in follow-up of the future Directive, so-called ‘overriding mandatory law’ aka ‘lois de police’ aka ‘lois d’application immédiate’ under A16 Rome II. The challenge for the EU to harmonise private law, such as civil liability rules, shows in this formulation. The EC makes recourse to a Directive, not a Regulation, since (p.17)

The proposed instrument is a Directive, since Article 50 TFEU is the legal basis for company law legislation regarding the protection of the interests of companies’ members and others with a view to making such protection equivalent throughout the Union. Article 50 TFEU requires the European Parliament and the Council to act by means of directives.

Hence rather than formulating the future Directive’s liability provisions itself as of overriding EU law nature (a possibility expressly foreseen in Rome I’s rules on applicable law for contracts, but not impossible I believe within Rome II), the Directive will oblige Member States to ensure the lois de police character of their future rules implementing the Directive.

I understand the difficulty yet I think the proposal could shortcut the discussion (and avoid difficulties in case a Member State fails to declare the lois de police nature) by declaring

‘Member States’ provisions of national liability law transposing this Article are of overriding mandatory application in cases where the law applicable to claims to that effect is not the law of a Member State.’

(the latter, in my proposal struck through part I believe is simply redundant).

In claims based on tortious liability, the Directive is most likely to be used to help establish fault (by action or omission). The remainder of the action (solidarity between various tortfeasors, damage calculation etc) will remain subject to the lex causae otherwise applicable. In claims based on unjust enrichment (a business and human rights route much worth exploring for supply chain cases) the Directive will most likely remain of smaller use seeing as these claims do not aim to establish liability, however the  paper trail which the Directive will ensure, may be of documentary use here, too.

Geert.

James Finlay business and human rights suit potentially puts forum non conveniens and its Brussels’ cousin to the test.

Update 3 September 2022 In [2022] CSOH 57 on 22 August Lord Braid granted an anti-suit injunction , ordering James Finlay to continue its own attempts at obtaining an anti-suit injunction in the Kenyan courts, aimed at halting the Scots collective proceedings. Lord  Braid referred ia [17] to the seminal Turner v Grovit case, of Brussels Convention fame. [42] James Finlay are found, in seeking and obtaining the Kenyan orders to have been vexatious and oppressive of the group members, whom its conduct was calculated to harass.

Update 3 February 2022 thank you Russell Hopkins for alerting us to the judgment of Lord Weir [2022] CSOH 1, [29] that the suit meets with Scottish collective action /group proceedings rules. Forum non conveniens arguments will be heard later.

I posted the Tweet below in October,  and am posting mostly to report that I do not as yet have more to go by. The suit is against James Finlay and follows in the footsteps of one brought in 2017, pre-Brexit therefore.  The 2017 action per CJEU Owusu v Jackson cannot be subject to a forum non conveniens challenge, and I am as yet not aware of an Article 33-34 Brussels IA ‘forum non light’ defence. This new, 2021 action has already been said to be met with a forum non challenge. It will be interesting to see first of all whether the forum non challenge in the latest suit will be impacted by the unavailability in principle of forum non in the 2017 suit; additionally, whether defendants are aiming to have the 2017 suit thrown out on the basis of A33-34 BIa (so far I have not seen indications that they will).

As I point out in the Tweet, had the UK been allowed to join Lugano, forum non would not be available to this newest suit.

Geert.

EU Private International Law, 3rd ed. 2021, Chapter 7.

High Court refuses capped cost order for English corporate defendant in Malawi sexual exploitation case, emphasising access to justice. Noli sequitur forum non arguments dress up as cost application.

Update 25 February 2022 Lord Justice Coulson today refused permission to appeal:  [2022] EWCA Civ 233.

Cavanagh J (unusually assisted by Brown J, who has extensive experience in cost orders) last week in Thomas & Ors v PGI Group Ltd [2021] EWHC 2776 (QB) refused to grant a ‘Capped Cost Order’, ‘Cost Capping Order’ or CCO (these also exist for judicial review proceedings and in arbitration). This application for a CCO was reportedly the first made under CPR 3.19.

In the case, brought before Brexit date under Article 4 Brussels Ia, a group of Malawi claimants are suing tea company Lujeri’s English parent company PGI alleging complicity in exploitation and abuse, including sexual abuse.  Claimants allege the Defendant owed a duty of care to them on the basis that it promulgated relevant policies, standards and guidelines, that it exercised supervision and control over Lujeri, and/or that it held itself out as exercising such supervision and control. The Claimants further allege that the Defendant breached that duty of care and that they suffered loss and damage as a result.

English proceedings against Lujeri were dropped following claimants’ admission that they were unlikely to meet a jurisdiction challenge against same on the basis of Malawi being the natural forum for that claim [14]. The defendant does not resist A4 jurisdiction, acknowledges the UK is the natural forum for the claims against it, that there is no abuse of process (neither in my view have any place in A4 jurisdiction) and that the case is at least arguable.

Had the CCO been granted, it would have the effect of limiting the future costs recoverable by the Claimants, should they ultimately be successful, to £150,000 (or thereabouts). It would not impact the recoverable costs of the defendants if they are successful, although [25] they are unlikely to be able to recover any. As the judge notes [13] even if the core claim is successful, compensation will be far below parties’ legal costs in the case. The non-financial, ‘vindication’ [13] objectives are more important.

Despite defendants’ acknowledgment that a jurisdiction challenge is effectively impossible under A4 (A33-34 do not seem engaged), their arguments for a CCO [28 ff] are forum non via the backdoor:

Whilst not disputing that the Claimants are entitled to bring these proceedings against the Defendant in England, the Defendant submits that it is still open to the Claimants to bring proceedings in Malawi against Lujeri, their former, or, in some cases, their current, employer, and, indeed, against the Defendant. The Defendant submits that it would be more appropriate for the Claimants to bring their claims against Lujeri, in Malawi, especially as such claims would be advanced on the simple and straightforward basis of vicarious liability, rather than on the basis of a more complicated claim against the UK-domiciled parent company.

At 43 claimants make the obvious point that this is a ‘(lightly) disguised attempt to strike out these proceedings on the basis that they are an abuse of process, or that England is a forum non conveniens’.

At 72 the judge holds that claimants are right that it would not be appropriate, having regard to the CPR required principle of proportionality [‘the overriding objective [of the CCO, GAVC] of enabling the court to deal with cases justly and at proportionate cost’] to cap the costs at a figure that is less than the minimum costs that are required for them to litigate their claims effectively in the High Court. Costs in other words cannot be disproportionately incurred if they are below the amount that is required by the party to litigate its claims effectively, unless [74] parties’ costs are out of proportion to the potential benefits to the Claimant of the litigation’ – quod non in casu: [79]: ‘The sums that are likely to be recoverable, though small by English standards, are very significant for poor Malawian plantation workers, and they may indeed be life-changing. I accept the Claimants’ submission that in any event, the Claimants’ objectives in bringing these proceedings are not entirely, or even principally, about money.’

At 82-83 the resurrected forum non arguments feature again,  with the judge holding

In any event, in the present case, one of the parties, the Defendant, is domiciled in England. It is a matter of public importance in this country whether a company that is domiciled here is in breach of a duty of care to workers on plantations in Malawi, owned by a subsidiary company. CPR 44.3(5)(e) states that the extent to which a claim is in the public interest is a matter to be taken into account when considering proportionality.

That is an important consideration for future CCOs, outside the Brussels Ia context and indeed an argument that would feed into an A33-34 analysis, too.

At 91 ff the judge reinforces his findings on the basis of access to justice:

‘I think that it is highly significant, in this regard, that the imposition of a CCO would almost certainly have the effect of forcing the Claimants to abandon their claims…

this is not a case in which a wealthy Claimant is deliberately pursuing a low-value claim, at great expense, in order to harass the Defendant, or to cause as much unnecessary cost to the Defendant as possible. Rather, this is a case in which extremely poor Claimants are pursuing a relatively low-value claim for a number of legitimate reasons, only one of which is the prospect of damages.

This is an important finding, both under A4 Brussels Ia and beyond it, under residual English conflicts rules.

Geert.

European Private International Law, 3rd ed. 2021, Chapter 7.

Josiya ea v BAT ea (tobacco labourers’ exploitation). On documentary proof of link between claimant and defendant.

Josiya & Ors v British American Tobacco Plc & Ors [2021] EWHC 1743 (QB) is the first shot in an important business and human rights case, accusing the defendants of being responsible for working conditions said to include the widespread use of unlawful child labour, unlawful forced labour and the systematic exposure of vulnerable and impoverished adults and children to extremely hazardous working conditions with minimal protection against industrial accidents, injuries and diseases.

I briefly want to flag the 25 June order by Spencer J for it highlights a point I often make when teaching, or sharing my practice experience on, strategic and public interest litigation: that most of these cases are won not by an eloquent speech on grand principles, delivered in Hollywood fashion. Rather, by the dogged determination of invested lawyers, with a keen eye for detail across civil procedure (including standing, statutes of limitation, service, timely filing of procedural , third party and other ways of financing, tort and other applicable law).

The order at issue dismisses an application for strike-out which was essentially based on an alleged lack of documentary proof of claimants’ link to the defendants, leading to claim said to be an abuse of process.

Brussels IA applies to the claim (claim form was filed on 18 December 2020, the particulars of claim – POC on 12 January 2021): claimants aim to avoid forum non conveniens although of course Articles 33-34 might still be raised. Locus causae is said to be Malawi law [19]. Claimants concede [23] they do not at this stage have documentary evidence that categorially links each individual Claimant to one or more of the Defendants or companies within the Defendants’ corporate groups. They tried to obtain this unsuccessfully in pre-trial disclosure.

Claimant’s counsel, Richard Hermer QC, successfully argued a distinction [41]  between what is required for a party to plead the case; and what is required for a party to prove the case at trial.

Held: the claim form without specific identification of the link between individual claimants and specific defendants is not an abuse of process under the circumstances. An application for disclosure may and must be prepared.

Geert.

European Private International Law, 3rd ed. 2021, Chapter 7.

Begum v Maran. A hopeful Court of Appeal finding on duty of care; however open issues on its engagement with Rome II’s environmental heading.

Update 10 May 2022 The claim has been settled.

I am late in reporting  Begum v Maran (UK) Ltd [2021] EWCA Civ 326, in which the Court of Appeal rejected an application for strike-out. I reported on the High Court judgment here and I should add I am instructed for claimant in the case. Oliver Holland, the lead Leigh Day solicitor in the case, discusses its implications together with Rachel Bonner (who was led by Richard Hermer) here.

Coulson LJ held that it is at least arguable (reminder: the specific action that was being discussed was an application for strike-out) that Maran does have a duty of care. His analysis essentially leans heavily on the fact that Maran availed itself of a disposal route, the consequences of which it was much aware of. It is clear that the well-known Bangladesh route to escape health, safety and environmental standards for the dismantling of ships, is questionable under the Basel Convention on Hazardous wastes and their disposal, and that shipowners have been using privity of contract in an attempt to shield themselves from any liability for consequences which are neither unexpected nor infrequent.

Others have written on the duty of care issue and I will focus on the A7 Rome II discussion: the lex specialis for environmental damage – on which I have a paper forthcoming (but to find more time!).  At 78 ff Coulson LJ firstly links the requirement of causality (the use of the flimsy ‘arising out of’) to the non-contractual obligation claimed (here: corporate duty of care), rather than the one immediately following the damage (here: negligence, recklessness causing death). That duty of care does not, it was held, ‘arise out of’ environmental damage. [82]: ‘In essence, it is the duty to take all reasonable steps to ensure that the sale of the vessel for demolition purposes did not endanger human life or health. That duty did not arise out of environmental damage; it had nothing to do with environmental damage at all. It arose out of the complete absence of workplace safety.’ And at 86: ‘even if the court had to consider whether the death (rather than the duty) arose out of environmental damage, the result would be the same…the death arose out of the absence of safe working practices and, in particular, the absence of a safety harness.’ Support is found in scholarly sources suggesting a narrow interpretation of A7; other sources are not discussed (despite having been submitted) and I continue to be convinced such limiting interpretation is not supported by the travaux. Males J, in his mostly concurring opinion, agrees that the last thing on A7 is far from said although he, too, holds that A7 is not engaged in casu.

Lord Justice Coulson obiter considers locus delicti commissi (which would be  the alternative lex causae under A7) and at 91 succinctly holds (pro memoria: obiter) that this would not have been England. There is authority I would suggest for the opposite finding and the judge’s interpretation of Arica Victims, I submit,  leaves room for discussion: at 91 he correctly refers to the Ovre Norrland Court of Appeal having pointed to ‘key decisions’ having been made in Sweden. These to me seem present in current case, too (and here: located in England).

At 110 ff the ordre public argument under A26 Rome II, which could displace the shorter statute of limitation of the Bangladeshi lex causae, for the longer English one, is succinctly dismissed as not meeting A26’s high hurdle. This leaves a narrower (and perhaps curiously indirect) ‘undue hardship’ argument under the E&W Foreign Limitation Periods Act 1984 to be discussed as a preliminary issue at the remanded trial in the High Court.

A most relevant case, also highlighting the many unresolved issues under A7 Rome II.

Geert.

EU Private International Law, 3rd ed. 2021, para 4.54 ff.

Suing ‘Norsk Hydro’ in The Netherlands. No engagement it seems of Article 33-34 BIa ‘forum non conveniens light’.

A quick note on the suit in The Netherlands against “Norsk Hydro” of Norway, for alleged pollution caused by aluminium production in Brasil. No court decisions or orders are available as yet hence I write simply to log the case. I have put Norsk Hydro in inverted commas for the suit really is against Norsk Hydro subsidiaries incorporated in The Netherlands, who are said to control the Brazilian entities. The jurisdictional basis therefore is A4 BIa. As far as the reporting on the case  indicates, there seems little likelihood of A33-34 BIa’s forum non conveniens light making an appearance seeing as no Brazilian proceedings are reported to be underway which could sink the Dutch proceedings like the High Court did in Municipio de Mariana. That is not to say of course that the defendants might not discover some.

Geert.

EU Private International Law., 3rd ed. 2021, Heading 7.3.1.

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