Despite acceptance by governments of UN guidance highlighting the importance of remedy for victims of
corporate human rights abuses, the potential for victims to access justice is becoming increasingly constrained.
People whose human rights are abused by corporations often struggle to obtain remedy through local courts, leading them to seek justice through the courts of countries in which those companies operate, such as the UK, Canada, and the US. Such claimants face enormous obstacles in bringing these claims, including the difficulty of obtaining legal representation capable of matching the resources of large corporate legal teams. Another hurdle is the need to overcome jurisdictional challenges, which often take years to resolve. Several recent developments highlight these challenges.
Earlier this year, the Quebec Court of Appeal declined jurisdiction in respect of a claim against Anvil Mining Ltd for complicity in war crimes and crimes against humanity by the Congolese army against the people of Kilwa in the Democratic Republic of the Congo (DRC). The judgment overturned a previous ruling which found that, were the claim not entitled to proceed, there would exist no other possibility for the victims to be heard by civil justice. The claimants are expected to appeal the decision as part of a long running battle for justice for the events which took place in 2004.
In the US last week, the UK and Dutch governments submitted an
amici curiae brief in the United States Supreme Court in support of Royal Dutch Petroleum (Shell), which is being sued under the Alien Tort Claims Act (ATCA). The case involves a claim by Nigerian plaintiffs against Shell for aiding and abetting the Nigerian government in extrajudicial killing, torture, and crimes against humanity. The UK submission urges the US courts not to allow such claims under ATCA. If the US Supreme Court agrees, victims of transnational corporate misconduct may find yet another avenue of relief closed to them.
In the UK, Leigh Day & Co has assisted thousands of victims pursue their claims for remedy against British-based corporations. Yet, the introduction of
changes to the civil costs regime by the Legal Aid, Sentencing and Punishment of Offenders Bill threatens to make such claims unviable. According to the former UN Special Representative on Business and Human Rights, Professor John Ruggie, the changes proposed by the Bill could “constitute a significant barrier to legitimate business-related human rights claims being brought before the UK courts in situations where alternative sources of remedy are unavailable”(as reported in Hansard 30 Jan 2012).
Despite these concerns, and the UK Government’s stated support for the work of the former UN Special Representative, the Government has to date resisted calls to amend the legislation to prevent such an impact.
The Bill is scheduled to undergo the Reporting stage on 3 March 2012, in which there will be a line by line examination of the Bill in the House of Lords.