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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  • 1. 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
  • 2. 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
  • 3. 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
  • 4. 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
  • 5. 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
  • 6. 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?
  • 7. 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
  • 8. 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
  • 9. 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.