Approaches to and Challenges of Legal Redress for Victims of Corporate Human Rights Violations in a Globalised World

Approaches to and Challenges of Legal Redress for Victims of Corporate Human Rights Violations in a Globalised WorldR. Grabosch, ECCHR
The challenges of globalisation for constitutional and corporate governance
14-16 October 2010, University of the Witwatersrand, Johannesburg

Links
Inappropriate payment in the
course of manufacturing
Lidl
Forced
displacement of
local, indigenous
communities in order to make space for infrastructure
Lahmeyer Int. Merowe dam
Close
relationship
with an
oppressive
government
or regime
in re South African apartheid
Threats to life and
physical integrity by
security forces
ThyssenKrupp CompanhiaSiderurgicaAtlantico

Legal responses
Criminal liability
… of the managers
… of the corporation as such
Civil liability
Law of unfair competition & consumer protection*
Consequences at economic law*
*not discussed in this presentation

Criminal liability
Prosecution at the ICC
Personal: any natural person who “contributes to the commission or attempted commission of [a] crime by a group of persons acting with a common purpose”(Art 25 Rome Statute)
Subject matter: serious violations of human rights: ►genocide; ►crimes against humanity (murder, torture, enslavement, deportation, imprisonment, racial discrimination, apartheid); ►war crimes
Territorial: 111 member states
Limited capacity
?
World Court for Business and Human Rights?
Civil liability
[Law of unfair competition & consumer protection]
[Consequences at economic law]
Criminal liability

Criminal liability
UK, CH, ...
Jurisdiction►nationality of perpetrator or victim; ►place of incriminated action; ►universal jurisdiction;Obstacle: reluctance due to comity and complexity
Intent or negligence of specific individual must be provenObstacle: access to evidence re subjective element can be nearly impossible (complex decision-making process; long distance; individuals involved can refuse to testify)
Advantages (respective litigation): public investigation; no fees
Recent case: Lahmeyer Int. (Merowe)
Prosecution at the domestic level

Civil liability
Access to courts
Access to courts
Applicable law
Applying the law
Criminal liability
Jurisdiction of US courts
1789 Alien Tort Claims Act: Extraterritorial jurisdiction
(Sosa, but: Kiobel)
Home state jurisdiction
EU: Art 2 Brussels-I Regulation,
no exception of forum non conveniens (Owusu v Jackson)
Civil liability
[Law of unfair competition & consumer protection]
Within EU generally no class actions, discovery proceedings, punitive damages, jury trial
Recognition & enforcement of discovery order / final judgment in the corporations home state?
[Consequences at economic law]
Costs of the dispute-> legal aid?

Civil liability
Access to courts
Applicable law
Applicable law
Applying the law
alternative: Piercing the corporate veil
►Company law of the subsidiary
claim for damages
EU: Regulation Rome II
manager duties;
attribution of conduct, knowledge, fault
rules of safety and conduct
limitation, prescription
prerequisites
of the claim
overriding mandatory provisions of the forum state:
►rules of due diligence? ►rules of safeguarding of traffic ?
Law at the place of conduct
Law at the place of registration of defendant company
Law at the place of injury

Civil liability
Access to courts
Applicable law
Applying the law
Applying the law
The foreign law -> (foreign) expert opinions
Tort laws were not designed with global business context in mind
How to specify prerequisites as ►causation ►due diligence
►foreseeability ►proximity ►reasonable person ?
-> Utilisation of int. codes of conduct, int. human rights law?
Problem of piercing the corporate veil-> company law of the country in which the subsidiary is registered
Access to evidence
-> company register
-> whistleblowers
-> civil society communication with company before/during violation
-> claims for disclosure of information

Thank you for your attention.
For questions & comments please contact robert.grabosch@gmail.com.
Visit the European Center for Constitutional and Human Rights at http://ecchr.eu.

Approaches to and Challenges of Legal Redress for Victims of Corporate Human Rights Violations in a Globalised World

by Robert Grabosch on Oct 17, 2010

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Approaches to and Challenges of Legal Redress for Victims of Corporate Human Rights Violations in a Globalised World Presentation Transcript