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
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