The UK Court of Appeal handed down its long anticipated decision in Lungowe and others v. Vedanta Resources Plc and Konkola Copper Mines Plc [2017] EWCA Civ 1528 (“Vedanta”). The appeal was brought by UK-based Vedanta Resources Plc (“Vedanta Resources”) and its Zambian subsidiary Konkola Copper Mines (“KCM”), against a decision dismissing certain jurisdictional challenges brought by each of Vedanta Resources and KCM.
The underlying claim was brought by a group of Zambian Villagers alleging that harmful effluent from the appellants’ Zambian copper mining operations had been discharged into the local environment, including waterways that were of critical importance to the livelihood of the claimants, and to their physical, economic and social wellbeing. Rejecting the appeal, the Court of Appeal found that the claim could proceed against the appellants in the UK.
The Vedanta litigation is a critical avenue for the claimants to pursue effective remedy as envisioned by the UN Guiding Principles on Business and Human Rights (“UNGPs”) and represents a significant development in the emerging doctrine of parent liability.
Accessing Human Rights Remedies against Companies – the Importance of Tort Claims
The UNGPs are structured around three pillars: first, the State duty to protect against human rights; second, the corporate responsibility to respect human rights; and third, the need for greater access to effective twitter database remedy for victims of human rights abuses. The UNGPs do not provide any enforcement mechanism, and with the exception of the obligation of non-state actors to comply with international criminal law, there are no direct international law obligations on corporate actors to respect human rights.
Conventional tort litigation can provide an avenue for private parties to bring suit against multinational corporations in domestic courts based on conduct which violates international human rights (“IHR”) standards. Given the dearth of direct IHR obligations on corporate actors, pursuing human rights breaches in the form of domestic tort claims remains one of the few avenues for those impacted by human rights violations to obtain effective remedy.
While it may be preferable to bring a claim based on human rights abuses in the jurisdiction in which the underlying events occurred, where a domestic court in a host jurisdiction is unwilling or unable to provide a judicial avenue for redress, plaintiffs may seek to bring claims in the home state of a corporate actor. Although the future of corporate liability under the Alien Tort Statute in the US remains uncertain pending the outcome of the Supreme Court’s decision in Jesner at al v Arab Bank Plc No 16-499, there are promising developments in the case law in Canada (Choc v Hudbay Minerals Inc [2013] ONSC 1414), the Netherlands (Akpan v Royal Dutch Shell PLC Arrondissementsrechtbank Den Haag, 30 January 2013 Case No C/09/337050/HA ZA 09-1580) and the UK (AAA and Anor v Unilever PLC and Anor [2017] EWHC 371) where courts have been willing to assume jurisdiction over cases where harms the subject of the claim have occurred outside the home state.