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.

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.

Permission to appeal refused on cost issues in Malawi sexual exploitation case. Court of Appeal confirms a forum non conveniens defence cannot be brought via a cost order.

Lord Justice Coulson the other week refused [PGI Group Ltd v Thomas & Ors (Application for Permission to Appeal) [2022] EWCA Civ 233] permission to appeal against the High Court’s refusal to grant a capped cost order – CCO in the Malawi exploitation and abuse case.

Coulson LJ firstly grants that the judge may have expressed himself more clearly on some of the technical aspects of the costs in the case however did not misapply relevant CPR rules. Secondly, on the more substantive element of the case the Court of Appeal held that the judge was right to ignore the much lower cost implications of possible Malawi proceedings for to do so, as I flagged in my post on the High Court judgment, would bring in a forum non conveniens defence via the back door of cost orders: [45]:

The costs of pursuing the claim in Malawi must be irrelevant to the making of a CCO in the UK. If a claim is validly brought in the UK, then that brings with it the reasonable/proportionate costs of pursuing those proceedings in the UK.

A good judgment.

Geert.

 

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.

Bank Melli Iran: How corporate social responsibility reports may act as a shield in export controls law.

A short (and late – I am in mopping-up mood it seems) post on the AG’s Opinion in Case C‑124/20 Bank Melli Iran – in which he also cites my former colleague proximus Cédric Ryngaert. Hogan AG’s Opinion addresses the rock and the hard stone, or the devil and the deep blue sea dilemma facing corporations in the light of diverging export laws /sanctions law. May a German bank refuse to do business indeed end business with an Iranian bank, under pressure from US secondary export control laws?

More on the external relations aspects of the case is ia here and of course in the Opinion itself. My interest here lies in part of the Opinion: the AG’s view that an EU undertaking seeking to terminate an otherwise valid contract with an Iranian entity subject to the US sanctions must demonstrate to the  satisfaction of the national court that it did not do so by reason of its desire to comply with those sanctions. It must show other motives, such as ethical reservations about doing business with Iran. These reservations may be documented by a genuinely rolled-out CSR compliance program: (88)

‘In order, however, to establish that the reasons given in respect of any decision to terminate a contract on this ground were in fact sincere, the person referred to in Article 11 of the EU blocking statute in question − in the present case Telekom Deutschland – would need, in my view, to demonstrate that it is actively engaged in a coherent and systematic corporate social-responsibility policy (CSR) which requires them, inter alia, to refuse to deal with any company having links with the Iranian regime.’

CSR programs have been used as carrot ia in Trafigura and as stick ia in Vedanta. The view here is very much the carrot or if one likes, the shield function: CSR policies as a defensive weapon against the rock and hard stone dilemma. That is most interesting for the EU corporations concerned and likely to draw the attention of export sanctions practitioners (both in-house and out) to part of the corporation’s blurb which they may otherwise ignore. Yet it may put too much emphasis on fairly unregulated CSR policy drafting, and compliance issues.

Geert.

Nestle & Cargill v John Doe at the US Supreme Court. A further restriction of jurisdiction under ATS, with encouragement on corporate culpability as a pudding.

Update 8 September 2021 note the French Supreme Court’s less restrictive approach to ‘aiding and abetting’ in the (criminal law) judgment re Lafarge yesterday. It held complicity in a crimes against humanity case does not require hands-on assistance. As Philip Grant reports, in the view of the French SC it is necessary and sufficient to have had knowledge of the preparation or commission of such acts and that aid or assistance facilitated them; it is not necessary to belong to the criminal organization nor to subscribe to the conception or execution of the criminal plan.

A most late flag on Nestlé & Cargill v John Doe at the US Supreme Court, back in June. I reported on the case here and if you follow Lucas’ thread on the case, there is further interesting and impromptu analysis. Readers of the blog may know I have published on the issue before – search tag ‘ATS’ should give you all cases referred to below.

This case reconfirms the mood viz the Alien Tort Statute,  a popular (if not the only!) vehicle for corporate social responsibility litigation: since Kiobel, the USSC has seriously reigned in the scope of application of the ATS. In Nestlé, it would seem to impose a further squeeze on the ATS jurisdictional gateway. In Apartheid and Jesner Bank, ‘aiding and abetting’ by the US corporate headquarters of culpable conduct by their subsidiaries abroad, seemed to be a burden of proof claimants had to meet in order for the action to be admissible under the ATS. In Nestlé the Court in its current composition (sub III of the majority Opinion) suggests that aiding and abetting in that interpretation risks becoming a court-introduced (hence in its view noli sequi) action in tort.

Sub II, the Court is not at all clear what the jurisdictional hurdle might be, except that it is a very high one: ‘Nearly all the conduct that [claimants] say aided and abetted forced labor—providing training, fertilizer, tools, and cash to overseas farms—occurred in Ivory Coast… allegations of general corporate activity—like decisionmaking—cannot alone establish domestic application of the ATS.’ (Interesting contrast here with the UKSC in ia Vedanta).

Not only could one debate whether this decision represents the intention of the ATS (which, even if one applies it in limited fashion, did historically mean to catch at least in part activities outside of the US). One also immediately sees the most unattractive consequence of this judgment: as long as the dirty work is left for foreign affiliates to carry out overseas, one escapes the reach of ATS. As Lucas points out, it is not clear what kind of headquarter engagement could still trigger a suit under the ATS.

There is little solace in the indication that the Court (both in majority opinion and minority concurrence) accepts that corporations are not as such immune from suit under the ATS (which links to the issues currently discussed in Nevsun Resources). Update 8 September 2021 more on that issue by Doug Cassel here.

There will be more attempts to further refine the ATS scope. At the same time one imagines claimants will study in even greater detail than before, the possibility to bring the suit under more recent US federal laws with clear extraterritorial intent, such as in the field of corruption of export controls. As past (but now gone) ATS litigation shows, human rights and /or environmental suit need not necessarily label themselves as such.

Nomen non est omen. It is the end goal of human rights or environmental protection or, say, environmental justice which determines a suit’s character, no matter what prima facie subject matter the suit addresses. If one can advance these causes by suing under the by-laws of the World Philately Federation, say, one should have a good go at it.

Geert.

EU 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.

Okpabi v Shell. The Supreme Court reverses the Court of Appeal and the High Court on jurisdictional hurdles in parent /subsidiaries cases. Guest blog by professor Robert McCorquodale.

Update 12 07 2021 Shell have now dropped further jurisdictional objections. The Nigerian daughter companies will therefore be joined to the case at the High Court, together with the English-incorporated mother corporation (Shell dual list in England and The Netherlands).

Those who combine my excitement of having professor McCorquodale contribute to the blog, with his enthusiasm at the end of his post, may find themselves in a perennial game of complimentary renvoi.

Robert, who represented interveners CORE in Okpabi v Shell (one-line summary in live tweeting here), signals the jurisdictional take-aways. The wider due diligence context of the case is considered by Ekaterina Aristova and Carlos Lopez here, Lucas Roorda signals ia the merits bar following the jurisdictional findings and Andrew Dickinson expressed his hope of an end to excessively lengthy jurisdictional proceedings here.

 

Okpabi v Shell: Judges’ Approach to Jurisdictional Issues is Crucial

In Okpabi v Shell [2021] UKSC 3, Nigerian farmers brought a claim against Shell’s parent company (RDS) and its Nigerian subsidiary (SPDC) for environmental and human rights impacts of oil pollution. The claim had been struck out at the initial state on the basis of lack of jurisdiction in relation to the actions of SPDC, and this decision had been upheld by the Court of Appeal.

The Supreme Court unanimously swept aside these decisions. It held that when considering issues of the court’s jurisdiction over such a claim, a court must start from the basis that the alleged facts of the claim are true and from there determine if the claim has a real prospect of success.  The defendant should not bring evidence of its own to dispute the alleged facts unless the facts are demonstrably untrue or unsupportable, as otherwise it risks showing that there is an issue to be tried.  If a judge engages with the evidence and makes findings on it in a summary judgment, the more likely it is that the decision to strike out will be overturned. Further, the Court considered that there was a danger of a court determining issues which arise in parent/subsidiary cases without sufficient disclosure of material documents in the hands of the defendants. Both courts below had acted incorrectly and conducted a “mini-trial”, and so the appeal by the claimants was successful.

The Court affirmed Vedanta that parent companies can have a duty of care towards those affected by a subsidiary’s actions, and that the Caparo test was inapplicable to these types of cases. The Court also clarified the scope of the duty of care by making clear that control is not determinative, it is the level of management involvement by the parent which is crucial. A parent company’s group-wide policies and standards were relevant in this respect. The Court, unfortunately, did not refer in its decision to any comparative law cases or international developments, even though these had been drawn to its attention.

This decision embeds the position that parent companies can have a duty of care towards those affected by a subsidiary’s actions, and that de facto management is a factor to consider. It examined the legal process by which courts consider these jurisdictional issues and made it much harder for a judge to strike out a case at the jurisdictional stage unless the facts on which the claim is based are demonstrably untrue or unsupportable. This could enable quicker proceedings towards the merits in these types of cases.

—Robert McCorquodale – it is my honour to contribute to this excellent blog.

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