Applicable law and statutes of limitation in CSR /business and human rights cases. The High Court, at least prima facie, on shipbreaking in Bangladesh in Begum v Maran.

Update 28 August 2020 permission to appeal and cross-appeal has been granted and is being additionally sought by both parties on various issues.

Hamida Begum v Maran UK [2020] EWHC 1846 (QB) engages exactly the kinds of issues that I have just posted about, in court rather than in concept. On 30th March 2018 Mr Mohammed Khalil Mollah fell to his death whilst working on the demolition of a defunct oil tanker in the Zuma Enterprise Shipyar in Chittagong (now Chattogram), Bangladesh. On 11th April 2019 the deceased’s widow issued proceedings claiming damages for negligence under the UK Law Reform (Miscellaneous Provisions) Act 1934 and the Fatal Accidents Act 1976; alternatively, under Bangladeshi law. The scope of the proceedings has subsequently been broadened inasmuch as draft Amended Particulars of Claim advance a cause of action in restitution: more precisely, unjust enrichment.

Application in the current case is for strike-out and /or summary judgment (denying liability) hence the legal issues are dealt with at prima facie instead of full throttle level. One or two of the decisions deserve full assessment at trial. Trial will indeed follow for the application was dismissed.

The case engages with the exact issues in exchanges I had at the w-e.

Proceedings have not been brought against the owner of the yard and/or the deceased’s employer. Both are Bangladeshi entities. Maran (UK) Ltd,  defendant, is a company registered in the UK and, it is alleged, was both factually and legally responsible for the vessel ending up in Bangladesh where working conditions were known to be highly dangerous.

Focus of the oral argument has been whether claim discloses viable claims in English law on the basis of tort of negligence (answer: yes) and in unjust enrichment (answer: no).

The issue of liability in tort is discussed on the basis of English law, which is odd at first sight given Rome II might suggest as a starting point Bangladeshi law as the lex causae ; Justice Jay himself says so much, but only at 76 ff when he discusses Rome II viz the issue of limitation. In applications for summary judgment however, reasoning and order of argument may take odd form as a result of the prima facie nature of the proceedings and the conversations between bench and parties at case management stage.

On the tort of neglicence claimant argues under English law, with direct relevance to the current debate on environmental and human rights due diligence, that a duty of care required the defendant to take all reasonable steps to ensure that its negotiated and agreed end of life sale and the consequent disposal of the Vessel for demolition would not and did not endanger human health, damage the environment and/or breach international regulations for the protection of human health and the environment. The EU Ship Recycling Regulation 1257/2013 was suggested as playing a role, which is dismissed by Justice Jay at 24 for the Regulation was not applicable ratione temporis.

At 30, claimant’s case on negligence is summarised:

First, the vessel had reached the end of its operating life and a decision was taken (perforce) to dispose of it. Secondly, end-of-life vessels are difficult to dispose of safely. Aside from the evident difficulties inherent in dismantling a large metal structure, a process replete with potential danger, an oil tanker such as this contains numerous hazardous substances such as asbestos, mercury and radio-active components. Although these were listed for Basel Convention purposes and for the attention of the buyer, and the deceased was not injured as a result of exposure to any hazardous substance, the only reasonable inference is that waste such as asbestos is not disposed of safely in Chattogram. Thirdly, the defendant had a choice as to whether to entrust the vessel to a buyer who would convey it to a yard which was either safe or unsafe. Fourthly, the defendant had control and full autonomy over the sale. Fifthly, the defendant knew in all the circumstances that the vessel would end up on Chattogram beach. Sixthly, the defendant knew that the modus operandi at that location entailed scant regard for human life.

The gist of the argument under tort therefore is a classic Donoghue v Stevenson type case of liability arising from a known source of danger.

At 42 ff Justice Jay discusses what to my mind is of great relevance in particular under Article 7 Rome II, should it be engaged, giving claimant a choice between lex locus delicti commissi and lex locus damni for environmental damage, in particular, the issue of ‘control’. One may be aware from my earlier writings (for an overview see my chapter in the 2019 OUP Handbook of Comparative environmental law) that the determination of the lex causae for that issue of control has not been properly discussed by either the CJEU or national courts. This being a prima facie review, the issue is not settled definitively of course however Justice Jay ends by holding that there is no reason to dismiss the case on this issue first hand. This will therefore go to trial.

As noted Rome II is only discussed towards the end, when the issue of limitation surfaces (logically, it would have come first). Claimant does not convince the judge that the case is manifestly more closely connected with England than with Bangladesh under A4(3) Rome II. Then follows the discussion whether this might be ‘environmental damage’ under Article 7 Rome II, which Justice J at 83 ff holds preliminarily and prima facie, it is. Analysis of Article 7 is bound to be of great importance at trial and /or appeal.

At 85 a further issue for debate is trial is announced, namely whether the one-year statute of limitation under Bangladeshi law, should be extended under Article 26 Rome II’s allowance for ordre public (compare Roberts and CJEU C-149/18 Martins v DEKRA – that case concerning lois de police and statutes of limitation. 

Plenty of issues to be discussed thoroughly at trial.

Geert.

(Handbook of) European Private International Law, 2nd ed. 2016, Chapter 8, Heading 8.3.

 

 

Call for papers with tight deadline. Macao Writers’ Workshop for Early-Career Environmental Law Scholars.

I shall be spending a few weeks as a distinguished (yes, me!) visiting scholar at University of Macau in September. As part of my commitments there I shall be joining

  • Professor Paulo Canelas de Castro (University of Macau)
  • Professor Qin Tianbao (Wuhan University)
  • Professor Ben Boer (Wuhan University)
  • Professor Alexander Zahar (Wuhan University)
  • Professor Benoit Mayer (The Chinese University of Hong Kong)

in the committee for a workshop on the writing of academic articles in the environmental law area. That’s quite a committee if you ask me.

We shall be assisting around twelve early-career environmental law scholars to publish an original research article on environmental law in English in an international top-tier journal.

At this moment we are looking in particular for a number of scholars based outside PRC to join the excellent Chinese candidates. All info is here. Deadline is tight: initial short abstract and CV are due Friday next, 7 June.

Geert.

 

Waste not want not – Dr Caroline Jackson’s ideas for EU waste law compliance

I have often thought that the collective memory lost in Members of the European Parliament leaving the Institution, is both a policy and a legal pity. A policy pity, as one assumes politicians, too, learn though trial and error, therefore improving the quality of their regulatory output over the years. A legal pity, for when applying statutory law such as EU Directives, the object and purpose of what is written in Gazettes (in the case of the EU, the Official Journal), can only assist to a certain degree. The preparatory works of EU law are readily accessible via Oeil and Prelex, yet these do not tell the whole story. One often needs the view of the fly on the wall to appreciate what the law really means.

I expressed this thought specifically at a conference in Brussels some years ago, where Dr Jackson, then MEP (for 25 years!) and close to retire from Parliament, also spoke. She displayed exactly the qualities which are apparent in a recent paper for the IEEP, co-authored with Emma Watkins: a keen eye for legal detail and a genuine concern for the quality of the legislative process a the EU.  In ‘EU Waste Law: The Challenge of Better Compliance‘, the pair review the problems associated with waste law compliance, and suggest ways of improvement.I will not even attempt to summarise, the genuine article does a much better job at that.

One of the concerns expressed in the paper, is the trend of intransparency surrounding both first reading agreements between Parliament and Council, and conciliation agreements. That is of concern to those of us who like to dig deep into EU travaux préparatoires. I for one certainly hope that Dr Jackson will continue to write on her long experience as a European lawmaker.

Geert.