Posts Tagged CSR
‘Reading’ Arica Victims v Boliden Mineral (I have a copy of the case, but not yet a link to ECLI or other database; however there’s a good uncommented summary of the judgment here] leaves me frustrated simply for my lack of understanding of Swedish. Luckily Matilda Hellstorm at Lindahl has good review here (including a hyperlink to her earlier posting which alerted me to the case in 2017).
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, which determined lex causae as lex loci damni. The Court found this to include statute of limitation. This would have been 10 years under Swedish law, and a more generous (in Matilda’s report undefined) period under Chilean law. Statute of limitation therefore following lex causae – not lex fori.
Despite this being good for claimants, the case nevertheless failed. The Swedish court found against liability (for the reasons listed in Matilda’s report). (With a small exception seemingly relating to negligence in seeing waste being uncovered). Proof of causality seems to have been the biggest factor in not finding liability.
Leave to appeal has been applied for.
(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 8.
Expect a series of blog postings in the next few weeks on developments which occurred a few weeks or even months back. I have been squirreling away a series of judgments and other developments, with a view to exam season. Some of them I did use in my exam papers – some of them I did not.
Update 24 January 2018 Imamura et al. v General Electric Company and ‘Does 1-100’ employs the same jurisdictioal opening to forum shop in the US. See here for background.
nCooper v. Tokyo Electric Power [plaintiffs in the case are a group of service members in the U.S. Navy who were deployed to Operation Tomodachi, a relief effort in the immediate aftermath of the massive earthquake and tsunami; they allege they were exposed to radiation during the deployment] by the US Court of Appeals, ninth circuit, is a direct (and rare in its directness) example of how jurisdictional rules are used to help co-ordinate a country’s diplomatic efforts. In this particular case, the Court gives direct support to the State Department’s view that in order for others to be encouraged to accede to the Convention on Supplementary Compensation for Nuclear Damage (“CSC”), its main jurisdictional rule (granting exclusive jurisdiction to the country of the locus delicti commissi) must not be achievable via an application of comity in the US courts. For further background and overview see Elina Teplinsky, and Meghan Claire Hammond here.
That plaintiffs are US citisens plays a major role in the court ruling out forum non conveniens.
In some of the corporate social responsibility /alien tort statute cases that I have reported on in the blog (particularly, Rio Tinto), foreign policy openly plays a role, too, and in Kiobel itself, in the lower courts, the impact of jurisdiction on US foreign policy was debated, too. It is always refreshing to see courts highlight the issue openly. For in many jurisdictions, such obvious impacts are brushed under the carpet.