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

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Presentation held at the University of the Witwatersrand, Johannesburg, conference "The challenges of globalisation for constitutional and corporate governance"

Presentation held at the University of the Witwatersrand, Johannesburg, conference "The challenges of globalisation for constitutional and corporate governance"
14-16 October 2010

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    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 World Presentation Transcript

    • 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.