Update 06 05 2021 See for comparative purposes Begum v Maran here. That case most definitely advances the duty of care under English law beyond the discussions in earlier case-law which Das v George Wetson, Loblaws et al had the benefit of discussing. Equally notably, the UK Supreme Court had not yet held in either Vedanta or Okpabi when the Ontario CA held. In light of Begum v Maran, many of the arguments against duty of care under Bangladeshi law may have to be revisited.
Thank you Bennet Jones for flagging, just before Christmas, Das v George Weston, Loblaws et al, 2017 ONSC 4129 in which the Ontario Court of Appeal confirmed the earlier decision to dismiss a claim by a proposed class in Ontario on behalf of individuals injured in the collapse of the Rana Plaza building in Dhaka, Bangladesh in 2013 and their families.
The case evokes a wide range of comparative law issues, including of course jurisdiction (not disputed here), duty of care (much disputed), applicable law (held to be Bangladeshi law as locus delicti commissi (as it would be eg in Australia, different from the EU), but with further discussion of the laws of England (Cape in particular) and India pro inspiratio [in particular M.C. Mehta v India, advancing the English rule of Rylands v Fletcher, in which the Supreme Court of India found that social costs of conducting hazardous activities should be borne by the profit-maker and not by the community].
The Court here discusses and part distinguishes ia Vedanta, Okpabi and Unilever, as Bennet Jones note: ‘Justice Feldman distinguished the English cases in that: (i) Loblaws had little control over the factories; (ii) Loblaws was not in the same business as the factories; (iii) Loblaws did not have superior knowledge or expertise about issues of structural safety; and (iv) Loblaws did not undertake to audit Rana Plaza for structural safety.’
I imagine the last word on what ‘control’ means in global value chains may not have been said.
Update 25 October 2017. The PCIA has accepted to review the complaint brought under a related instrument, the Bangladesh Accord between trade unions and fashion chains.
In response to the tragedy at the Rana Plaza factory, the EU, Bangladesh and the International Labour Organisation together launched the ‘Global Sustainability Compact’ early July. The full title of the Initiative is the “Compact for Continuous Improvements in Labour Rights and Factory Safety in the Ready-Made Garment and Knitwear Industry in Bangladesh”. According to the official EU statement upon release of the initiative, key considerations are:
- Reforming the Bangladesh Labour Law to strengthen workers’ rights, in particular regarding freedom of association and the right to collective bargaining, and to improve occupational health and safety. A new Labour Law should be in place by the end of 2013. The ILO will monitor the effective enforcement of the new legislation.
- Recruiting 200 additional inspectors by the end of 2013, as part of the efforts to ensure regular visits to factories and assess them in terms of working conditions, including occupational safety and health, and compliance with labour laws.
- Improving building and fire safety, especially structural safety of buildings and fire safety in ready-made garment factories, by June 2014. The ILO will help to coordinate efforts and mobilise technical resources.
The initiative is said to be ‘non-binding’, whence presumably the countries resorted to the name ‘Compact’ – a new entry I believe in the dictionary of international law (policy?) instruments [there is of course the UN Global Compact, however that does not have State involvement]. The use of co-operation and partnership is said to be the ‘carrot’ as an alternative to the ‘stick’: the latter would be to remove GSP and GSP+ treatment to Bangladeshi import into the EU. GSP and GSP+ require developing countries to sign up to, and implement, a number of international conventions in a variety of areas, so as to enjoy preferential access to the EU (the US and other countries employ similar instruments). Its use is not uncontroversial.
I would have thought that withdrawal of GSP treatment by the EU would have been a little bit crass, given the role of companies (and consumers) here in seeking cheap garments, the price of which, frankly, just cannot be right.
As often, follow-up of this new partnership will be of the essence.