Posts Tagged mass tort litigation

Jabir and others v. KiK Textilien und Non-Food GmbH. German court kicks supply chain CSR litigation into the long grass. Questions on Statutes of limitation under Rome II left out in the open.

Jonas Poell, Julianne Hughes-Jennett, Peter Hood and Lucja Nowak reported and succinctly reviewed Case No. 7 O 95/15 Jabir and Others v Kik early January – the ‘next week’ promise in my Tweet below turned out a little longer.

Survivors of a fire in a Pakistani textile supplying factory are suing Germany-based KIK as the “main retailer” of the merchandise produced in the Pakistani premises. Jurisdiction evidently is easily established on the basis of Article 4 Brussels Ia.

As Burkhard Hess and Martina Mantovani note here, claimants are attempting to have KIK held liable for not having promoted and undertaken, in practice, the implementation of “adequate safety  measures” in the Pakistani factory (producing clothes), thus breaching an engagement  they undertook in a Code of Conduct applicable to its relationship with its contractual  counterpart.

Prof Hess and Ms Mantovani’s paper ‘Current developments in forum access: Comments on jurisdiction and forum non conveniens European Perspectives on Human Rights Litigation’ incidentally is an excellent stock taking on the issues surrounding mass tort (human rights) litigation.

The Dortmund court held that the case is time-barred under Pakistani law which was the lex causae per Rome II, Regulation 864/2007. Now, I have not had access to the full ruling (lest the 3 page ruling linked above is precisely that – which I am assuming it is not), so a little caveat here, however the court’s discussion of limitation periods is startlingly brief. Article 15 Rome II includes ‘the manner in which an obligation may be extinguished and rules of prescription and limitation’ in the scope of application of the lex causae’. Yet as the development inter alia of relevant English statute shows (discussed ia by Andrew Dickinson in his Rome II book with OUP), there are a multitude of issues surrounding statutes of limitation. One of them being Article 1(3) Rome II’s confirmation that evidence and procedure is not within its scope, another Article 26’s ordre public exception which certainly may have a calling here.

I have reported before on the difficult relationship between A1 and A15 in Spring v MOD and in PJSC Tatneft v Bogolyubov.

The court at Dortmund also rejects the argument that parties’ settlement negotiations before the claims were filed amount to choice of (German) law per Article 14(1). That would have triggered the 3 year German limitation period as opposed to the 2 year Pakistani one. Dr Jungkamp, the chamber president, argues that parties did not have any reflection on the Pakistani (or indeed German) limitation period in mind when they corresponded on the ex gratia out of court settlement, hence excluding the intention (animus contrahendi) required to speak of choice of law. I would suggest that is a bit of a succinct analysis to conclude absence of choice of law. Parties need not be aware of all implications of such choice for it to be validly made.

Appeal is possible and, I would suggest, warranted.

Geert.

(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 4, Heading 4.7, Heading 4.8, Chapter 8, Heading 8.3.

 

 

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Kalma v African Minerals. Vicarious liability for human rights abuses at the hands of Sierra Leone police.

[2018] EWHC 3506 (QB) Kalma v African Minerals et al was held by the High Court on 19 December 2018. It essentially entails vicarious liability of UK-incorpored companies (jurisdiction firmly settled therefore) for human rights abuses committed by Sierra Leone police (SLP), who ensured security at the defendants’ mine. All claims were held to have failed. The judgment is lengthy and very factual, please refer to same.

Matrix have brief analysis here, critical reception of the judgment is inter alia here. The case does not raise the kind of jurisdictional or applicable law issues which trigger interest of this blog (such as yesterday’s post on Nevsun Resources). Nevertheless discussion of the factual involvement of the companies with SLP activities, required to establish vicarious liability, has echoes of the discussion on the level of oversight required for mother companies to be held liable for subsidiaries’ actions (such as e.g, in Apartheid or in various CSR cases making their way through UK courts).

Of additional note:

  • Turner J’s discussion at 61 ff headed ‘keeping things in proportion’: the difficulty of a judge;s task, particularly at 63: ‘I make no complaint about the volume of written material which has been provided for my assistance. I have read all of it carefully. Both sides have been extremely well served by the industry and thoroughness of their respective legal teams. Inevitably, however, and for the sake of proportionality, I have had to leave a very considerable number of these points on the cutting room floor. This does not mean that I have failed to consider them or that I have discarded them as being entirely redundant but merely that the inclusion of their analysis or resolution in an already lengthy judgment would not have a material impact on the determination of the central issues.’ Less can be more.
  • At 84: irrelevance of CSR discussions: ‘Both sides were very enthusiastic about the idea of setting the parameters of their evidence and submissions to cover broad issues concerning the general level of social responsibility displayed by the defendant – upon which topic they predictably entertained very different views. This, however, I have not permitted. The consequences of the exploration of such issues would have been entirely disproportionate, in terms both of time and costs, to the limited value of resolving them. For the same reason, I do not propose to adjudicate upon the rights and wrongs of the community and employment disputes which lay behind the incidents to which they gave rise.’

Geert.

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

 

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