6. ACCESS TO REMEDIES: JUDICIAL MECHANISMS

DANY Channraksmeychhoukroth, RADU Mares

Introduction

Access to remedies is a human right present in numerous international conventions. Having the opportunity to challenge a sanction or to claim a right before an independent adjudicatory body is a legal principle and mark of good governance. When it comes to corporate abuses, victims continue to face significant legal, procedural and practical barriers as they seek justice in courts of law. These challenges are clearly recognized in the UN Guiding Principles on business and human rights (UNGPs) and well documented in NGO reports and academic literature. When victims are deprived of justice in their countries they often try to access courts in home states where parent companies are headquartered. For victims that means a long legal battle as it typically takes a decade of litigation or more and the wheels of justice move slowly even in advanced legal systems. The cases against transitional companies are often very complex. The few cases that advance far enough in courts tend to be settled by companies without admission of guilt. There are therefore very few judgements finding parent companies liable to plaintiffs in other countries. The US system attracted most attention until a 2013 Supreme Court judgement (Kiobel v Shell) put the brakes on transnational litigation in the US. Cases continue to be pursued at an increasing rate in Canada, the UK and other European countries often by invoking tort law (especially the law of negligence). The UN High Commissioner for human rights and a range of European Union institutions, with the strong backing of civil society groups, have taken the lead in pushing for improved access to remedies. Although remediation is clearly demarcated in the UNGPs through Pillar 3, the latter has been labelled the ‘forgotten pillar’ due to the very slow progress. Soft law instruments (chapter 2) and multistakeholder initiatives (chapter 5) often have complaint mechanisms against companies, but these are mediation-only systems. As emphasized in the UNGPs, the multiple barriers to access to court make it essential to develop and use non-judicial remedies (chapter 7). Such alternative dispute resolution mechanisms could provide victims with faster remediation on any human rights issue (chapters 17, 19, 21, 25).

The Constitution of Cambodia guarantees access to remedy in articles 38 and 39. At the regional level, the ASEAN Human Rights Declaration recognizes the right of every person to an effective and enforceable remedy in article 5. Business activities have endangered several fundamental rights in Cambodia including rights to property, adequate housing, health, work, movement and others. When violations have occurred, the State must ensure that any person whose rights have been violated has access to an effective remedy by the competent judicial or administrative body or other competent authorities. Furthermore, enforcement of the granted remedy must be feasible. Practically, there are deficiencies in capacity (legal representation, time and resources) and shortcomings regarding impartiality and judicial independence.

Main Aspects

• Access to justice
• The human right to a remedy
• Barriers to remedies (substantive, procedural and practical barriers)
• Access to evidence (and burden of proof)
• Jurisdiction (prescriptive, enforcement and adjudicative jurisdiction)
• Applicable law (in transnational cases)
• Criminal and civil law remedies
• Liability (corporate and personal liability)
• Liability for actions and inactions (commission and omission)
• Structures of business organizations (‘corporate veil’, ‘separate corporate personality’)
• Links between parent company and affiliates (ownership, control, direction, autonomy)
• Duty of care of parent company (tort law, negligence law, delictual liability)
• Assumption of responsibility (subsidiary relies on parent company for advice)
• Enterprise liability (vicarious liability, ‘piercing the corporate veil’)
• Complicity (aiding and abetting)
• Presumption against extraterritoriality
• International cooperation (judicial assistance)
• Integrity of the courts (criticism of local legal system)
• Enforcement of a foreign judgement
• Environmental degradation

Background

UN, Guiding Principles on Business and Human Rights[1]

Principle 25: Access to remedy

As part of their duty to protect against business-related human rights abuse, States must take appropriate steps to ensure, through judicial, administrative, legislative or other appropriate means, that when such abuses occur within their territory and/or jurisdiction those affected have access to effective remedy.

Commentary

Unless States take appropriate steps to investigate, punish and redress business-related human rights abuses when they do occur, the State duty to protect can be rendered weak or even meaningless.

Access to effective remedy has both procedural and substantive aspects. The remedies provided by the grievance mechanisms discussed in this section may take a range of substantive forms the aim of which, generally speaking, will be to counteract or make good any human rights harms that have occurred. Remedy may include apologies, restitution, rehabilitation, financial or non-financial compensation and punitive sanctions (whether criminal or administrative, such as fines), as well as the prevention of harm through, for example, injunctions or guarantees of non-repetition. Procedures for the provision of remedy should be impartial, protected from corruption and free from political or other attempts to influence the outcome. (…)

Principle 26: State-based judicial mechanisms

States should take appropriate steps to ensure the effectiveness of domestic judicial mechanisms when addressing business-related human rights abuses, including considering ways to reduce legal, practical and other relevant barriers that could lead to a denial of access to remedy.

Commentary

Effective judicial mechanisms are at the core of ensuring access to remedy. Their ability to address business-related human rights abuses depends on their impartiality, integrity and ability to accord due process.

States should ensure that they do not erect barriers to prevent legitimate cases from being brought before the courts in situations where judicial recourse is an essential part of accessing remedy or alternative sources of effective remedy are unavailable. They should also ensure that the provision of justice is not prevented by corruption of the judicial process, that courts are independent of economic or political pressures from other State agents and from business actors, and that the legitimate and peaceful activities of human rights defenders are not obstructed.

Legal barriers that can prevent legitimate cases involving business-related human rights abuse from being addressed can arise where, for example:

• The way in which legal responsibility is attributed among members of a corporate group under domestic criminal and civil laws facilitates the avoidance of appropriate accountability;
• Where claimants face a denial of justice in a host State and cannot access home State courts regardless of the merits of the claim;
• Where certain groups, such as indigenous peoples and migrants, are excluded from the same level of legal protection of their human rights that applies to the wider population.

Practical and procedural barriers to accessing judicial remedy can arise where, for example:

• The costs of bringing claims go beyond being an appropriate deterrent to unmeritorious cases and/or cannot be reduced to reasonable levels through government support, ‘market-based’ mechanisms (such as litigation insurance and legal fee structures), or other means;
• Claimants experience difficulty in securing legal representation, due to a lack of resources or of other incentives for lawyers to advise claimants in this area;
• There are inadequate options for aggregating claims or enabling representative proceedings (such as class actions and other collective action procedures), and this prevents effective remedy for individual claimants;
• State prosecutors lack adequate resources, expertise and support to meet the State’s own obligations to investigate individual and business involvement in human rights-related crimes.

Many of these barriers are the result of, or compounded by, the frequent imbalances between the parties to business-related human rights claims, such as in their financial resources, access to information and expertise. Moreover, whether through active discrimination or as the unintended consequences of the way judicial mechanisms are designed and operate, individuals from groups or populations at heightened risk of vulnerability or marginalization often face additional cultural, social, physical and financial impediments to accessing, using and benefiting from these mechanisms. Particular attention should be given to the rights and specific needs of such groups or populations at each stage of the remedial process: access, procedures and outcome.

Instruments

Universal Declaration of Human Rights[2]

Article 8

Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.

International Covenant on Economic, Social and Cultural Rights[3]

 

Article 2

3. Each State Party to the present Covenant undertakes:

(a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;

(b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy;

(c) To ensure that the competent authorities shall enforce such remedies when granted.

UN, Basic Principles and Guidelines on the Right to a Remedy[4]

IX. Reparation for harm suffered

19. Restitution should, whenever possible, restore the victim to the original situation before the gross violations (…) occurred. Restitution includes, as appropriate: restoration of liberty, enjoyment of human rights, identity, family life and citizenship, return to one’s place of residence, restoration of employment and return of property.

20. Compensation should be provided for any economically assessable damage, as appropriate and proportional to the gravity of the violation and the circumstances of each case, resulting from gross violations of international human rights law and serious violations of international humanitarian law, such as:

(a) Physical or mental harm;

(b) Lost opportunities, including employment, education and social benefits;

(c) Material damages and loss of earnings, including loss of earning potential;

(d) Moral damage;

(e) Costs required for legal or expert assistance, medicine and medical services, and psychological and social services.

21. Rehabilitationshould include medical and psychological care as well as legal and social services.

22. Satisfaction should include, where applicable, any or all of the following:

(a) Effective measures aimed at the cessation of continuing violations;

(b) Verification of the facts and full and public disclosure of the truth to the extent that such disclosure does not cause further harm or threaten the safety and interests of the victim, the victim’s relatives, witnesses, or persons who have intervened to assist the victim or prevent the occurrence of further violations;

(c) The search for the whereabouts of the disappeared, for the identities of the children abducted, and for the bodies of those killed, and assistance in the recovery, identification and reburial of the bodies in accordance with the expressed or presumed wish of the victims, or the cultural practices of the families and communities;

(d) An official declaration or a judicial decision restoring the dignity, the reputation and the rights of the victim and of persons closely connected with the victim;

(e) Public apology, including acknowledgement of the facts and acceptance of responsibility;

(f) Judicial and administrative sanctions against persons liable for the violations;

(g) Commemorations and tributes to the victims;

(h) Inclusion of an accurate account of the violations that occurred in international human rights law and international humanitarian law training and in educational material at all levels.

23. Guarantees of non-repetitionshould include, where applicable, any or all of the following measures, which will also contribute to prevention:

(a) Ensuring effective civilian control of military and security forces;

(b) Ensuring that all civilian and military proceedings abide by international standards of due process, fairness and impartiality;

(c) Strengthening the independence of the judiciary;

(d) Protecting persons in the legal, medical and health-care professions, the media and other related professions, and human rights defenders;

(e) Providing, on a priority and continued basis, human rights and international humanitarian law education to all sectors of society and training for law enforcement officials as well as military and security forces;

(f) Promoting the observance of codes of conduct and ethical norms, in particular international standards, by public servants, including law enforcement, correctional, media, medical, psychological, social service and military personnel, as well as by economic enterprises;

(g) Promoting mechanisms for preventing and monitoring social conflicts and their resolution;

(h) Reviewing and reforming laws contributing to or allowing gross violations of international human rights law and serious violations of international humanitarian law.

OHCHR, Improving Accountability and Access to Remedy[5]

Cross-cutting issues

A. Structural and managerial complexity of business enterprises

21. Business enterprises can take many legal and structural forms. They may be single corporate entities (or “companies”) or a group of companies working together through relationships on the basis of shared ownership, or contract, or both. The company law doctrine of “separate corporate personality” is recognized in most, if not all, jurisdictions. Under this doctrine, each company, as a separately incorporated legal entity, is treated as having a separate existence from its owners and managers. Consequently, a company (a parent company) that owns shares in another company (a subsidiary) will not generally be held legally responsible for acts, omissions or liabilities of that subsidiary merely on the basis of the shareholding.

22. This means that legal liability for the adverse human rights impacts of a subsidiary’s activities may not extend beyond the subsidiary itself, unless the liability of the parent company can be established on some other basis (e.g., because of the parent company’s own negligence in the way the subsidiary was managed or because of some specific legislative provision). (…)

B. Challenges particular to cross-border cases and the importance of international cooperation

25. The extent of international cooperation in cross-border cases has a crucial bearing on accountability and access to remedy in practice. States have entered into a range of bilateral and multilateral arrangements to support, facilitate and enable international cooperation with respect to legal assistance and enforcement of judgments in cross-border cases, including cases concerning business-related human rights abuses. Some of these include provisions concerning the desired or required use of jurisdiction in cross-border cases.

27. Regardless of whether formal international legal arrangements are in place, State agencies can experience a range of practical challenges that can undermine effective cooperation, including a lack of information about how to make a request to agencies in other States, a lack of opportunities for cross-border consultation and coordination, differences of approach regarding issues of privacy and the protection of sensitive information, a lack of resources needed to process requests in a timely manner and a lack of awareness of investigative standards in other States.

US, Kiobel v Shell[6]

Petitioners, Nigerian nationals residing in the United States, filed suit in federal court under the Alien Tort Statute [ATS], alleging that respondents—certain Dutch, British, and Nigerian corporations—aided and abetted the Nigerian Government in committing violations of the law of nations in Nigeria. (…)

The ATS provides, in full, that “[t]he district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” Accord­ing to petitioners, respondents violated the law of nations by aiding and abetting the Nigerian Government in com­mitting (1) extrajudicial killings; (2) crimes against hu­manity; (3) torture and cruel treatment; (4) arbitrary arrest and detention; (5) violations of the rights to life, liberty, security, and association; (6) forced exile; and (7)property destruction. (…)

BREYER, J., concurring in judgment

Unlike the Court, I would not invoke the presumption against extraterritoriality. Rather, guided in part by principles and practices of foreign relations law, I would find jurisdiction under this statute where (1) the alleged tort occurs on American soil, (2) the defendant is an Amer­ican national, or (3) the defendant’s conduct substantially and adversely affects an important American national interest, and that includes a distinct interest in prevent­ing the United States from becoming a safe harbor (free of civil as well as criminal liability) for a torturer or other common enemy of mankind.

I would interpret the statute as providing jurisdiction only where distinct American interests are at issue. (…) That re­striction also should help to minimize international fric­tion. Further limiting principles such as exhaustion, forum non conveniens, and comity would do the same. So would a practice of courts giving weight to the views of the Executive Branch. (…) As I have indicated, we should treat this Nation’s interest in not becoming a safe harbor for violators of the most fun­damental international norms as an important jurisdiction-related interest justifying application of the ATS in light of the statute’s basic purposes – in particular that of compen­sating those who have suffered harm at the hands of, e.g., torturers or other modern pirates.

UK, Chandler v Cape[7]

1. (…) The principal issue is whether Cape [the parent company of the company employing Chandler (the plaintiff)] owed a direct duty of care to the employees of its subsidiary to advise on, or ensure, a safe system of work for them. The respondent, Mr Chandler, has recently contracted asbestosis as a result of a short period of employment over fifty years ago with Cape Building Products Ltd (“Cape Products”). That company is no longer in existence. However, its parent company, Cape, formerly the well-known asbestos producer Cape Asbestos plc, is still in existence.  [The first instance court] held that Cape was liable to Mr Chandler on the basis not of any form of vicarious liability or agency or enterprise liability, but on the basis of the common law concept of assumption of responsibility. Cape appeals against that decision.

32. The three-stage test in Caparo [applies] for determining whether a situation gives rise to a duty of care. The three ingredients are that the damage should be foreseeable, “that there should exist between the party owing the duty and the party to whom it is owed a relationship characterised by the law as one of “proximity” or “neighbourhood” and that the situation should be one in which the court considers it fair, just and reasonable that the law should impose a duty of a given scope upon the one party for the benefit of the other.” (…)

69. I would emphatically reject any suggestion that this court is in any way concerned with what is usually referred to as piercing the corporate veil. A subsidiary and its company are separate entities.  There is no imposition or assumption of responsibility by reason only that a company is the parent company of another company. 

70. The question is simply whether what the parent company did amounted to taking on a direct duty to the subsidiary’s employees. 

72. (…) what is complained of is not the taking of any particular step but an omission to take steps or to give advice.

73. In the present case, Cape was clearly in the practice of issuing instructions about the products of the company, for instance, about product mixes.  We know that Cape Products could not incur capital expenditure without parent company approval.  Cape’s board minutes show that Cape approved the separate administration of Cape Products’ operations “in accordance with company policy” of Cape.  There is nothing wrong in that but it suggests that the company policy of Cape on subsidiaries was that there were certain matters in respect of which they were subject to parent company direction.  (…)

74. (…) Cape was not responsible for the actual implementation of health and safety measures at Cape Products. However, as Mr Weir points out, the problem in the present case was not due to non-compliance with recognised extraction procedures. (…) the problem was systemic.

75. (…) Cape moreover had superior knowledge about the asbestos business (…) and its resources far exceeded those of Cape Products.  Dr Smither was doing research into the link between asbestos dust and asbestosis and related diseases.  He was also (if this label makes any difference) the group medical adviser of Cape.

77. Cape concedes that the system of work at Cape Products was defective.  The judge inevitably found as a fact – and there is no appeal from this – that Cape was fully aware of the “systemic failure” which resulted from the escape of dust from a factory with no sides.  Cape therefore knew that the Uxbridge asbestos business was carried on in a way which risked the health and safety of others at Uxbridge, most particularly the employees engaged in the brick making business. 

78. Given Cape’s state of knowledge about the Cowley Works, and its superior knowledge about the nature and management of asbestos risks, I have no doubt that in this case it is appropriate to find that Cape assumed a duty of care either to advise Cape Products on what steps it had to take in the light of knowledge then available to provide those employees with a safe system of work or to ensure that those steps were taken.  (…)

80. In summary, this case demonstrates that in appropriate circumstances the law may impose on a parent company responsibility for the health and safety of its subsidiary’s employees.  Those circumstances include a situation where, as in the present case, (1) the businesses of the parent and subsidiary are in a relevant respect the same; (2) the parent has, or ought to have, superior knowledge on some relevant aspect of health and safety in the particular industry; (3) the subsidiary’s system of work is unsafe as the parent company knew, or ought to have known; and (4) the parent knew or ought to have foreseen that the subsidiary or its employees would rely on its using that superior knowledge for the employees’ protection. (…) 

Canada, Choc v Hudbay Minerals[8]

4. The plaintiffs are indigenous Mayan Q’eqchi’ from El Estor, Guatemala. They bring three related actions against Canadian mining company, Hudbay Minerals, and its wholly­controlled subsidiaries. They allege that security personnel  working  for  Hudbay’s  subsidiaries, who were allegedly under the control  and  supervision  of  Hudbay,  the  parent  company, committed human rights abuses. The allegations of abuse include a shooting, a killing and gang­rapes committed in the vicinity of the former Fenix mining project, a proposed open-pit nickel mining operation located in eastern Guatemala.

17. The defendants make several overarching arguments. Firstly, they argue that the plaintiffs are implicitly asking the Court to ignore the separate corporate personalities of Hudbay, HMI and CGN. Secondly, they argue that the negligence claim is an attempt to use the common law to impose absolute supervisory liability on parent and grandparent companies regarding the operations of their subsidiaries in foreign countries. Thirdly, they argue that even if there is a duty of care owed, the alleged conduct was not foreseeable based on the facts as pleaded in the Statement of Claim.

25. The plaintiffs submit that the primary cause of action in all three cases is negligence based on the direct actions and omissions of Hudbay, and not on share ownership or vicarious liability of the parent corporation for the actions of its subsidiary, as argued by the defendants. This direct negligence includes Hudbay/Skye’s wrongdoing in its on-the-ground management of the Fenix project, and in particular, its negligent management of the Fenix security personnel who allegedly shot the plaintiffs in the Choe and Chub actions and raped the plaintiffs in the Caal action.

27. The plaintiffs plead that Hudbay/Skye’s detailed on-the-ground management and control was achieved through managers employed by Hudbay/Skye. These managers were responsible for the day-to-day operation and management of the Fenix project in Guatemala.

32. (…) Amnesty [International] made submissions with respect to international norms, authorities and standards which, it argued, support the view that a duty of care may exist in circumstances where a parent company’s subsidiary is alleged to be involved in gross human rights abuses. Amnesty submits that transnational corporations can owe a duty of care to those who may be harmed by the activities of subsidiaries, particularly where the business is operating in conflict-affected or high-risk areas, such as Guatemala. Amnesty also argued that the transnational character of the dispute should not exempt the defendants from the application of established principles of tort law.

57. This test [the test for establishing a novel duty of care] [requires] that the following must be proven:

1. that the harm complained of is a reasonably foreseeable consequence of the alleged breach;

2. that there is sufficient proximity between the parties that it would not be unjust or unfair to impose a duty of care on the defendants; and,

3. that there exist no policy reasons to negative or otherwise restrict that duty.

Foreseeability

59. The first requirement to establish a prima facie duty of care is foreseeability. (…) “the proper reasonable foreseeability analysis… requires only that the general harm, not ‘its manner of incidence’, be reasonably foreseeable” (…). For the purposes of the foreseeability analysis, it is enough if one could “foresee in a general way the sort of thing that happened. The extent of the damage and its manner of incidence need not be foreseeable if physical damage of the kind which in fact ensues is foreseeable” (…)

63. The Caal pleadings state that Hudbay/Skye knew: that violence was frequently used by security personnel during forced evictions; that violence had been used at previous forced evictions that it requested; that the security personnel were unlicensed, inadequately trained and in possession of unlicensed and illegal firearms; and that, in general, there was a risk that violence and rape could occur. These pleadings make it reasonably foreseeable that requesting the forced eviction of a community using hundreds of security personnel, as Hudbay/Skye is alleged to have done, could lead to security personnel using violence, including raping the plaintiffs.

Proximity

66. The second issue (…) is whether there is a proximate relationship between the plaintiffs and the defendants in each action. Proximity means that “the circumstances of the relationship inhering between the plaintiff and the defendant are of such a nature that the defendant may be said to be under an obligation to be mindful of the plaintiff’s legitimate interests in conducting his or her affairs” (…)

69. Proximity is determined by examining various factors, rather than a single unifying characteristic or test. Factors considered in defining the proximity of a relationship include, as set forth above, the “expectations, representations, reliance, and the property or other interests involved”. (…) Hudbay/Skye made public representations concerning its relationship with local communities and its commitment to respecting human rights, which would have led to expectations on the part of the plaintiffs. There were also a number of interests engaged, such as Hudbay/Skye’s interest in developing the Fenix project, which required a “relationship with the broader community, whose efficient functioning and support are critical  to  the long-term  success  of the company in Guatemala”, according to  Hudbay’s President  and  CEO. The plaintiffs’ interests were clearly engaged when, according to the pleadings, the defendants initiated a mining project near the plaintiffs and requested that they be forcibly evicted.

Policy Considerations

71. [The third element of the test is] whether  there  are  policy  reasons to negative or otherwise restrict the prima facie duty of care.

72. Both parties set out policy reasons to support their respective  positions.  The defendants submit that if a duty of care exists, it is negated because:

• a private member’s bill was introduced in federal Parliament to ensure that Canadian extractive corporations met environmental and human rights standards-it was defeated;
• a private member’s bill was introduced in federal Parliament to permit foreign plaintiffs to sue in Canada for claims based on violations of international law or treaties to which Canada is a party-it was also defeated (and has since been reintroduced but has not gone past first reading);
• recognizing a duty risks exposing any Canadian company with a foreign subsidiary to a myriad of claims, many of which will likely be merit less; this, in turn, would burden an already overtaxed judicial system;
• recognizing a duty would pre-empt the efforts of the federal government over  the  past  seven years to work with Canada’s mining sector to implement corporate  social responsibility principles; and
• recognizing a duty would likely impinge upon the fundamental principle of separate corporate personality entrenched in the common law and in corporate statutes.

73. The plaintiffs seek to refute the defendants’  arguments  and  submit  that  there  are sound policy reasons for recognizing a duty of care between  a  Canadian  mining  company  and individuals harmed by security personnel at its foreign operations when there is direct control  by  the Canadian parent corporation, as follows:

• recognizing a duty would support efforts taken by the federal government by encouraging Canadian companies to meet the “high standards  of corporate  social responsibility”  that  are currently expected by the Canadian government;
• recognizing a duty would support the government’s stated goal of reducing risks of excessive force or human rights abuse related to the deployment of private security at Canadian enterprises abroad; and
• tort law should be evolving to accord with globalization, and local communities should not have to suffer without redress when adversely impacted by the business activity of a Canadian corporation operating in their country. In the words of  former  Justice  Ian  Bitmie, “Ordinary tort doctrine would call for the losses  to  be  allocated  to  the  ultimate cost of the products and borne by the consumers who benefit from them, not disproportionately by the farmers and peasants of the Third World”.

74. There are clearly competing policy considerations in recognizing a duty of care in the circumstances of this case. (…)

Canada, Araya v Nevsun Resources[9]

4. [The notice of civil claim]

In October 2007, Vancouver based Nevsun Resources Ltd. entered into a commercial venture with the rogue state of Eritrea to develop the Bisha gold mine in Eritrea. The mine was built using forced labour, a form of slavery, obtained from the plaintiffs and others coercively and under threat of torture by the Eritrean government and its contracting arms. (…)

5. [Nevsun’s response to civil claim]

In answer to the Notice of Civil Claim as a whole… Nevsun denies the Plaintiffs’ and Group Members’ … allegations that subcontractors and the Eritrean military engaged in forced labour, slavery, torture or other abuses in connection with the Bisha Mine, or that Nevsun agreed to or in any way aided, abetted or approved of or condoned such conduct. At all material times, Nevsun was an indirect shareholder and the Bisha Mine was owned and operated by Bisha Mine Share Company (“BMSC”). BMSC prohibited the use of forced labour and abuses of workers at the Bisha Mine and took reasonable steps to ensure that such conduct did not occur.

43. The plaintiffs bring this action for damages against Nevsun under CIL [customary international law] as incorporated into the law of Canada for: the use of forced labour; torture; slavery; cruel, inhuman or degrading treatment; and crimes against humanity. They also seek damages under domestic British Columbia law against Nevsun for the torts of conversion, battery, unlawful confinement, negligence, conspiracy, and negligent infliction of mental distress.

They relate the tortious conduct to Nevsun specifically through the following allegations: (…)

(d) Nevsun is directly liable for condoning the above by Segen, Mereb, and the Eritrean military;

(e) Nevsun is directly liable for failing to stop these practices at its mine site and this amounts to aiding and abetting Segen’s and Mereb’s conduct; (…)

(g) Nevsun is vicariously liable for the conduct of Segen, Mereb and the Eritrean military at the Bisha Mine in furtherance of Nevsun’s commercial objectives;

(h) Nevsun participated in a civil conspiracy with BMSC, Segen, Mereb, and the Eritrean military by entering into an unlawful agreement for the supply of forced labour to the Bisha Mine;

(i) Nevsun is negligent because it breached a duty of care it owed to the plaintiffs; (…)

[the enforcement of an eventual judgment]

306. Nevsun also says that it has agreed to attorn to the jurisdiction of the Eritrean courts. (…) the plaintiffs could apply to enforce a final judgment obtained against Nevsun in Eritrea pursuant to the common law principles governing the enforcement of foreign judgments.

307. The plaintiffs’ position is that there will likely be contentious, costly, and time-consuming proceedings in British Columbia over any judgment obtained in Eritrea. Given the state of Eritrea’s judicial system, any losing party could easily mount a credible challenge to the integrity of any resulting judgment.

308. They cite the example of Chevron Corporation v. Yaiguaje, 2015 SCC 42, which they say illustrates the difficulties that can arise when enforcing a judgment from a forum that is vulnerable to accusations about the absence of judicial independence and rule of law. After many years of litigation both in the United States and Ecuador, a judgment from an Ecuadorian court in the amount of $9.5 billion remains unpaid. This has generated litigation in many jurisdictions.

309. The plaintiffs submit that it is easy to envision this saga repeating itself in this case. This factor favours this Court retaining jurisdiction “where the integrity of the courts is unassailable”.

African Commission on Human Rights, Shell in Nigeria[10]

2. The Communication alleges that the oil consortium [the State oil company (Nigerian National Petroleum Company (NNPC)), the majority shareholder in a consortium with Shell Petroleum Development Corporation (SPDC)] has exploited oil reserves in Ogoniland with no regard for the health or environment of the local communities, disposing toxic wastes into the environment and local waterways in violation of applicable international environmental standards. The consortium also neglected and/or failed to maintain its facilities causing numerous avoidable spills in the proximity of villages. The resulting contamination of water, soil and air has had serious short and long-term health impacts, including skin infections, gastrointestinal and respiratory ailments, and increased risk of cancers, and neurological and reproductive problems.

4. The Communication alleges that the Government has neither monitored operations of the oil companies nor required safety measures that are standard procedure within the industry. The Government has withheld from Ogoni Communities information on the dangers created by oil activities. Ogoni Communities have not been involved in the decisions affecting the development of Ogoniland.

7. The Communication alleges that in the course of the last three years, Nigerian security forces have attacked, burned and destroyed several Ogoni villages and homes under the pretext of dislodging officials and supporters of the Movement of the Survival of Ogoni People (MOSOP). These attacks have come in response to MOSOP’s non-violent campaign in opposition to the destruction of their environment by oil companies. (…)

45.  Internationally accepted ideas of the various obligations engendered by human rights indicate that all rights – both civil and political rights and social and economic – generate at least four levels of duties for a state that undertakes to adhere to a rights regime, namely the duty to respect, protect, promote, and fulfil these rights. These obligations universally apply to all rights and entail a combination of negative and positive duties. (…)

The Commission, finds the Federal Republic of Nigeria in violation of (…) the African Charter on Human and Peoples’ Rights; [and] Appeals to the government of the Federal Republic of Nigeria to ensure protection of the environment, health and livelihood of the people of Ogoniland by:

• Stopping all attacks on Ogoni communities and leaders by the Rivers State Internal Securities Task Force and permitting citizens and independent investigators free access to the territory;
• Conducting an investigation into the human rights violations described above and prosecuting officials of the security forces, NNPC and relevant agencies involved in human rights violations;
• Ensuring adequate compensation to victims of the human rights violations, including relief and resettlement assistance to victims of government sponsored raids, and undertaking a comprehensive cleanup of lands and rivers damaged by oil operations;
• Ensuring that appropriate environmental and social impact assessments are prepared for any future oil development and that the safe operation of any further oil development is guaranteed through effective and independent oversight bodies for the petroleum industry; and
• Providing information on health and environmental risks and meaningful access to regulatory and decision-making bodies to communities likely to be affected by oil operations.

US, Settlement Agreement, Wiwa v Shell[11]

The Plaintiffs in the Wiwa v. Shell cases are pleased to announce a settlement of their claims. The settlement will provide $15.5 million to compensate the injuries to the Plaintiffs and the deaths of their family members, and will also create a trust for the benefit of the Ogoni people, as well as pay the costs of litigation. (…) This Trust will allow for initiatives in Ogoni for educational endowments, skills development programmes, agricultural development, women’s programmes, small enterprise support, and adult literacy. (…)

UK, Okpabi v Shell[12]

Lord Justice Simon:

1. The claimants in these two actions seek damages arising as a result of serious, and ongoing, pollution and environmental damage caused by leaks of oil from pipelines and associated infrastructure in and around the Niger Delta for which, they contend, the 1st defendant (‘RDS’) and the 2nd defendant (‘SPDC’) are responsible.

2. The claimants are citizens of Nigeria and inhabitants of the areas affected by the oil leaks. RDS is a company incorporated in the United Kingdom and is the parent company of the Shell group of companies (‘the Shell Group’). SPDC is an exploration and production company incorporated in Nigeria, and is a subsidiary of RDS. It is the operator of a joint venture agreement (…)

3. The claims against both RDS and SPDC are based on the tort of negligence under the common law of Nigeria which, for present purposes, is to be regarded as the same as the law of England and Wales. The claim against SPDC is brought also under Nigerian statutory law. The claim against RDS is brought on the basis that RDS owed the claimants a duty of care either because it controlled the operation of pipelines and infrastructure in Nigeria from which the leaks occurred or because it had assumed a direct responsibility to protect the claimants from the environmental damage caused by the leaks.

7. [The appeal raises the question whether] RDS owed a duty of care to those affected by oil leaks from pipelines and associated infrastructure in the Rivers State of Nigeria.

10. RDS, as the ultimate holding company of the Shell Group of companies, carries out activities commensurate with this role, including holding shares in its subsidiaries and investments and setting the overall strategy and business principles for the Shell Group of companies. RDS reports on the consolidated performance of the Shell Group of companies, makes appropriate disclosures to the markets, and maintains relationships with investors. It is also responsible for approving changes to the capital and corporate structure of the Shell Group of companies.

11. RDS is a holding company. It is not an operating company. As a holding company, it does not have any employees. A limited range of corporate services are provided by individuals employed elsewhere in the Shell Group of companies from time to time seconded to RDS (…)

12. RDS does not involve itself or otherwise intervene in the operational activities of its many hundreds of subsidiaries. As a holding company, it does not have the expertise or capacity to do so (…) each operating company is autonomous, with its own  properly constituted board of directors, its own management, its own business purpose, its own assets and its own employees appropriate for that purpose. Its board and management take the operational decisions necessary to run its business. Each operating company is responsible and accountable for its operational performance including its Health, Safety, Security, the Environment and Social Performance (…) compliance and performance.

132. In my judgment, this is not a case in which the claimants can demonstrate a properly arguable case that RDS owed them a duty of care on the basis either of an assumed responsibility for devising a material policy the adequacy of which is the subject of the claim, or on the basis that it controlled or shared control of the operations which are the subject of the claim.

Sir Geoffrey Vos, Chancellor of the High Court:

195. The documents demonstrate rather what I would, from a commercial perspective, expect. They show that RDS laid down detailed policies and practices as to management, oversight and engineering which they expected their subsidiaries and joint ventures to follow. The Nigerian joint venture, operated by SPDC, was only special because it had particular problems and was particularly important from an economic perspective. The detailed policies and practices do not seem to have been tailored specifically for SPDC. Rather, they all apply across the board to all RDS subsidiaries and joint ventures, without distinction. It has already been said that it would be surprising if an international parent were to owe duties to those affected by the operations of all its subsidiaries and that there needs to be something more specific for the necessary proximity to exist. (…)

205. (…) In my judgment, the claimants fail in each of the five areas they sought to rely upon to establish proximity. So far as concerns the issue of mandatory policies, standards and manuals which applied to SPDC, these were, as I have said, of a high-level nature, even when quite specific at an engineering level. They did not indicate control; that control rested with SPDC which was responsible for its own operations. The promulgation of group standards and practices is not, in my view, enough to prove the “imposition” of mandatory design and engineering practices. There was no real evidence to show that these practices were imposed even if they were described as mandatory. There would have needed to be evidence that RDS took upon itself the enforcement of the standards, which it plainly did not. It expected SPDC to apply the standards it set. The same point applies to the suggested “imposition” of a system of supervision and oversight of the implementation of RDS’s standards which were said to bear directly on the pleaded allegations of negligence. RDS said that there should be a system of supervision and oversight, but left it to SPDC to operate that system. It did not have the wherewithal to do anything else. Likewise, in relation to the supposed imposition of financial control over SPDC in respect of spending. Any parent is concerned to ensure sound financial management, but the fact that spending decisions required parental approval is not an indication that RDS controlled SPDC’s operations. Finally, I do not think that the evidence supports the contention that RDS had a high level of involvement in the direction and oversight of SPDC’s (day-to-day) operations. SPDC’s evidence, which was not really capable of challenge, pointed in the other direction.

207. In conclusion, (…) I agree with Simon LJ that he was right to hold that the claimants’ claims against RDS were bound to fail because it was not arguable that RDS owed them a duty of care. There is simply no real prospect that the claimants will succeed against RDS.

UK, Lungowe v Vedanta[13]

1. [the claimants] are Zambian citizens who live in the Chingola region of the Copperbelt Province in the Republic of Zambia. On 31 July 2015, they brought proceedings against the first and second appellants (‘Vedanta’ and ‘KCM’ respectively) alleging personal injury, damage to property and loss of income, amenity and enjoyment of land, due to alleged pollution and environmental damage caused by discharges from the Nchanga copper mine (‘the Nchanga mine’) since 2005.

2. The mine is owned and operated by KCM, which is a public limited company incorporated in Zambia. Vedanta, which is incorporated in this country, is a holding company for a group of base metal and mining companies, which include KCM.

40. (…) KCM submit that the entire focus of this case is on Zambia. That is where the alleged torts were committed; that is where the damage occurred; that is where all the claimants live; that is where KCM are themselves domiciled; that is the law that applies. Accordingly, they say, on straightforward forum non conveniens grounds, the order permitting service out of the jurisdiction should be set aside. They submit that it makes no difference that there is a claim against Vedanta in the UK but, to the extent that it does or might matter, they maintain that the claim is an illegitimate hook being used to permit claims to be brought here which would otherwise not be heard in the United Kingdom. Further and in any event, they say that, the claimants’ alternative argument – that even if the United Kingdom is not the appropriate place for the trial, the claimants would not obtain justice in Zambia – is wrong on the evidence.

The claimants say that, because there is a real issue between themselves and Vedanta, which they intend to pursue to trial in the United Kingdom, it is reasonable for this court to try that issue in the United Kingdom, so that is therefore the appropriate place for their claims against KCM. If they are wrong about that they rely on access to justice issues, and what they say is the impossibility of trying these claims in Zambia. Although Mr Hermer accepts that the mere fact of the Vedanta claim in the United Kingdom does not automatically lead to the conclusion that service out should not be set aside, he said that it ‘weighed very heavily’ in favour of such a conclusion.

119. The legal test provides a burden on the claimants to show that there is a real risk that substantial justice cannot be obtained in Zambia (…) [Furthermore] Comity requires that the Court be extremely cautious before deciding that there is a risk that justice will not be done in the foreign country by the foreign court and that is why cogent evidence is required to establish the risk. (…) This must be clearly demonstrated against an objective standard and supported by positive and cogent evidence.

123. [The judge] condensed the material and identified seven factors which, in his view, when taken together amounted to ‘cogent evidence that, if these claimants pursued KCM in Zambia, they would not obtain justice’ (…).

124. First, the claimants earn considerably below the national average in Zambia; and given that Zambia is one of the world’s poorest countries, where most people live at subsistence levels, he could conclude that the vast majority of the claimants would not be able to afford the cost of any legal representation,

125. Secondly, in consequence of their poverty, the only way in which the claimants could ordinarily bring the present claims in Zambia would be by a Conditional Fee Agreement (CFA). However, it was common ground that CFAs were not available in Zambia and were unlawful,

126. Thirdly, there was no prospect of the claimants obtaining legal aid from the Zambian state. (…) the Legal Aid Board would not be able to provide funding for a large environmental claim on behalf of 1,800 claimants,

127. Fourthly, the prospect of ad hoc litigation funding was entirely unrealistic. (…) This is complex and expensive litigation involving over 1,800 claims. Detailed evidence is going to be necessary in respect of personal injuries, land ownership and damage to land; and expert evidence as to pollution, causation and medical consequences. On the evidence before the court, it is quite unrealistic to suppose that the lawyers would fund such large and potentially complex claims, essentially out of their own pockets, for the many years that litigation might take to resolve.

128. Fifthly, no private lawyers with relevant experience were willing and capable of taking on such claims in Zambia (…),

129. Sixthly, previous environmental litigation in Zambia had failed in respect of some or all of the claimants for various reasons. (…),

130. Seventhly, the Judge took into account what he described as KCM’s likely ‘obdurate’ approach to litigation in Zambia, which in his view, would add enormously to the time and therefore the cost. KCM had in the past pursued ‘an avowed policy of delaying so as to avoid making due payments’ (…).

133. I should perhaps mention one further matter which troubled the Judge: namely, that his findings might be regarded as amounting to criticisms of the Zambian legal system. He made clear that it was no part of his function to review the Zambian legal system: only to make findings on specific issues on the evidence before him. That observation was plainly correct. I would only add one point, and it is doubtless one that the claimants’ lawyers are aware of. There must come a time when access to justice in this type of case will not be achieved by exporting cases, but by the availability of local lawyers, experts, and sufficient funding to enable the cases to be tried locally.

Wesche and Saage-Maaß, Lessons from Jabir and Others v KiK[14]

This article is based on the authors’ practical experience in developing the KiK complaint [Jabir and Others v KiK], which constitutes the first tort-based business and human rights lawsuit in Germany. It was filed [in 2015] … on behalf of four Pakistani citizens, who were injured and lost relatives in the Baldia factory fire of September 2012. This fire broke out at the Ali Enterprises garment factory in Karachi and killed more than 250 persons, injuring several dozens more.

The high number of casualties was due to a serious lack of fire and workplace safety precautions: the factory was built in violation of applicable building and fire safety standards; electrical installations were in bad condition; and it did not possess sufficient fire alarms and extinguishers, despite previous fire incidents. Most importantly, there were insufficient emergency exits, and those that did exist were locked at the time of the fire. Therefore, when the fire broke out, many workers were trapped in the basement of the factory.

The claimants allege that KiK Textilien und Non-Food GmbH (‘KiK’), a German textile retailer with around 3,200 branches in Europe catering to the low-price market, incurs negligence liability in tort for not ensuring adequate fire safety precautions at the factory. Based on Pakistani substantive tort law, which in many aspects reflects the laws of the UK and incorporates UK court decisions, they argue that KiK owed them a duty of care on the basis that it had controlled factory conditions and assumed responsibility for safety management.

While KiK has publicly admitted that it purchased around 75 per cent of the factory’s output and that the factory’s growth was mainly due to this commercial relationship, the claimants allege that it was the factory’s only customer. In addition, they allege that KiK regularly intervened in the factory’s operations, including by directing and monitoring safety management. Like many companies, KiK has its own code of conduct, which forms part of its supply chain contracts, requiring suppliers to ensure safe working conditions and allowing KiK to monitor them. According to KiK’s own statements, it develops correction plans, supervises their implementation and conducts on-site qualification programmes, if such monitoring reveals any shortcomings. Furthermore, employees of its corporate social responsibility, purchasing and quality assurance departments regularly visit supplier sites. (…)

Conclusions

Based on the authors’ experience in the KiK case, this article has examined the feasibility of tort-based litigation against parent or buying companies for overseas human rights abuses before German courts. While the courts can exercise jurisdiction in such litigation, they will generally apply the law of the country where the abuses occurred. In some instances, this may be beneficial for the claimants, in others it may not, depending on the legal systems involved. While there is no direct precedent, it seems that the German law of tort does provide a cause of action in cases where damages to life, body, property, freedom of movement or personality rights are at stake. However, this only applies where the companies effectively control the harmful operations of their subsidiaries and suppliers or where these operations concern the management of a risk created by the company itself, which was delegated negligently. In such cases, similar to UK litigation, liability may be based on a breach of a safety duty the company owed to the claimants.

In fact, the most problematic aspects of litigation are of a practical and procedural nature. Given the absence of pretrial discovery and of effective mechanisms of court-ordered disclosure, claimants encounter great difficulties in proving their cases, which are characterized through a structural asymmetry in information. Moreover, there are no collective actions, which would allow lawyers to litigate on behalf of larger groups of claimants in a cost-efficient manner, and significant shortcomings with regard to legal aid. Together with the low profitability of these complex cases, this means that lawyers have little incentive to undertake litigation.

Unless these practical and procedural barriers are reduced, tort-based proceedings against companies because of overseas human rights abuses will remain exceptional in Germany, which applies not only to cases involving subsidiaries or suppliers, but also to cases of human rights abuses directly caused by German companies. Such proceedings will only be feasible with financial, organizational and analytical pro bono support by third parties and in the form of strategic litigation in specific cases. (…)

Augenstein and Jägers, Judicial Remedies – The Issue of Jurisdiction[15]

Human rights in private litigation

The relationship between human rights and private litigation can be approached from two different perspectives. The first perspective, germane to private lawyers, asks whether and to what extent civil litigation can be used to vindicate values and interests protected by human rights, such as physical integrity, privacy, or individual property. Here, the relationship between corporate perpetrators and victims of human rights abuses is regulated by private law, and the principal aim of litigation is the award of pecuniary damages.

The second perspective, germane to public lawyers, asks what obligations international human rights law imposes on states to protect human rights in the relationship between private actors. Here, the emphasis is on state duties to prevent and redress corporate human rights abuses through domestic legislation, adjudication, and the proper administration of justice.

International human rights law and jurisdiction in private international law

To be able to enjoy the protection of their human rights in transnational tort litigations against MNCs, victims of corporate human rights abuses need to come within the human rights jurisdiction of the state concerned.

Jurisdiction in private international law determines the competence of state courts to hear private disputes involving a foreign element. In most general terms, the determining factor is whether there exists a sufficiently close nexus between the facts of the case and the forum state. In EU law, this nexus is established through the domicile of the defendant in an EU Member State. The allocation of jurisdiction in private international law serves a number of different purposes, such as protecting the legitimate interest of private parties in cross-border disputes, ensuring an economical judicial process, and avoiding conflicting judgments in different states.

Yet it is also an expression of the delimitation of jurisdiction in public international law that protects the state’s sovereign authority over its territory and people therein against undue external interference by other states. Jurisdiction in public international law regulates states’ legal competence to assert authority in matters not exclusively of domestic concern, in accordance with a recognized legal basis and subject to a standard of reasonableness. It is commonly divided into prescriptive jurisdiction (the state’s authority to prescribe legal rules), enforcement jurisdiction (the state’s authority to enforce legal rules), and adjudicative jurisdiction (the authority of state courts to adjudicate disputes referred to them).

This entails, as Crawford notes, that ‘the starting point in this part of the law is the presumption that jurisdiction (in all its forms) is territorial, and may not be exercised extra-territorially without some specific basis in international law’. Moreover, it suggests that the competence of state courts in private international law to hear disputes involving extraterritorial corporate human rights abuses is constrained by the state’s jurisdiction under public international law.

The European approach: the Brussels I Regulation

In the EU, rules on jurisdiction in civil cases are partially harmonized through Regulation (EU) No. 1215/2012 (…) on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters [also known as the Brussels-I Regulation](…) The cornerstone of the Brussels I Regulation is Article 4(1) which [holds] that persons domiciled in a Member State shall be sued in the courts of that Member State. For legal persons, domicile is determined by Article 63(1), where domicile is defined as the state where a company or other legal person has its statutory seat, central administration or principal place of business. (…) Consequently, in cases against corporate entities, even when the acts occurred extraterritorially, the courts of a Member State will in principle have jurisdiction over the entity that is incorporated on that Member State’s territory. (…)

As the Regulation only applies to companies domiciled in the EU, it generally does not apply in tort cases against subsidiaries (…). Brussels I Regulation provides that ‘if the defendant is not domiciled in a

Member State, the jurisdiction of the courts of each Member State shall . . . be determined by the law of that Member State’. The following considerations discuss and illustrate three jurisdictional instruments in Member States’ private international law that can facilitate tort litigations for human rights abuses committed by Europe-based MNCs: forum necessitatis , the joining of defendants, and the pursuit of civil remedies through criminal jurisdiction. (…)

            The most publicized case involving the joining of a foreign subsidiary in litigation against an EU-domiciled parent company is currently pending in the Netherlands [Akpan v Shell regarding oil spills in the Nigeria]. According to Dutch private international law, a Dutch court may exercise jurisdiction over a foreign subsidiary when the claims against parent and subsidiary are so closely connected as to justify the joining of defendants for reasons of process efficiency. (…) [In 2010, the first court] maintained that the mere possibility that the Dutch parent company could be held liable was sufficient to attract a foreign subsidiary to the Dutch jurisdiction. Furthermore, the court’s jurisdiction over the foreign subsidiary is sustained even if the claims against the parent company eventually proved unfounded. (…) In December 2015, the Court of Appeal reinstated all claims against the Dutch parent company and SPCD, and ordered Shell to disclose documents concerning the maintenance of its oil pipelines. (…)

In a recent litigation [in the UK] with the same subject matter as the Dutch Shell case involving 15,000 claimants from Nigeria’s Bodo community, the proceedings were originally issued against the Anglo-Dutch parent company Royal Dutch Shell Plc and its Nigerian subsidiary SPDC. Later on, SPDC submitted to the jurisdiction of the English court on the condition that the claimants stayed proceedings against the parent company. The court decided that SPDC could in principle be held liable for oil spills resulting from a failure to take all reasonable steps to protect its oil infrastructure in Nigeria. In January 2015 a settlement was reached according to which Shell is to pay £55 million compensation and to clean up the affected areas.

Background (Cambodia)

Business and Human Rights in ASEAN: A Baseline Study[16]

III. Is the State taking steps to prevent, investigate, punish and redress business related human rights abuses through effective policies, legislation, regulations and adjudication?

1. Are there government bodies and/or State agencies that have the responsibility to prevent, investigate, punishes and redresses business-related human rights abuses? If so, how have they done so?

There are no specific government bodies and/or State agencies responsible for preventing, investigating, punishing or providing redress for business-related human rights abuses. However, there are a number of government agencies which are empowered by law to deal with human rights or human rights related issues under their jurisdiction. For example:

• The Ministry of Labour and Vocational Training is responsible for labour issues under the Labour Law. The Labour Inspection Department is responsible for inspection the workplace. The Health and Safety Department is responsible for health related issues. The Labour Dispute Resolution Department and Arbitration Council are responsible for conciliation and arbitration on labour disputes. In 2011, the Ministry of Labour and Vocational Training suspended a license of T&P Co Ltd because of allegations of violations of migrant workers’ rights before sending them to work in Malaysia.
• The Ministry of Land Management, Urban Planning and Construction is responsible for land disputes. The Mandate of the Cadastral Commission has the mission to resolve the following conflicts between possessors over unregistered land subject to possession rights: disputes occurring outside adjudication areas and disputes within adjudication areas that cannot be conciliated by the Administrative Commission.
• The Ministry of Environment is responsible for environmental protection and for overseeing environmental impact assessments before the commencement of business operations.
• Besides responsible ministries, there are number of councils and commissions or committees set up by the government to investigate specific issues. For instance, the National Sand Committee is responsible for oversight of sand licenses and assessing the impact of sand exploitation. The Anti-Corruption Unit is empowered to deal with corruption issues, etc.

Additional relevant institutions include the National Assembly Commission on Human Rights (NACHR), the Senate Commission of Human Rights (SCHR) and the governmental Cambodian Human Rights Committee (CHRC). For the previous two terms, the Senate Commission has received 397 complaints from citizens, most of which are related to land disputes. NACHR and SCHR are institutions for citizens to voice their concerns and complaints with regard to human rights violations. They are advisory bodies to the Royal Government of Cambodia. In contrast, CHRC’s role is to investigate and mediate complaints relating to human rights, collect information relating to the implementation of human rights, and to organize training and disseminate information on human rights. It also responsible for preparing human rights reports for the UN.

However, these government agencies are not authorized to punish and redress business-related human rights abuses. The prosecution of offences is the sole responsibility of the Public Prosecutor and the competent courts.

In addition, it has been noticed that the sensitive issue of economic land concessions arose in Cambodia. While the objective of the concession policy is to foster economic development, it also affects the rights and livelihoods of individuals and communities. Because of the lack of formal land titles the indigenous populations and people living in rural areas are particularly vulnerable. (…)

2.1. To what extent do business enterprises and company organs face liability for breaches of laws by business enterprises?

The concepts for holding business enterprises legally accountable as legal persons are found in various Cambodian Laws:

• Law on Commercial Enterprises: (…) A company has the capacity, rights and privileges of a natural person. Where a company commits an offence, any director or officer of the company who knowingly authorizes, permits or acquiesces in the commission of the offense is a party to the offence and liable to be fined.
• Labour Law: Chapter 16 of the Labour Law imposes civil and criminal sanctions on the employer, company heads, directors, managers or officers who violate provisions of the labour law.
• Criminal Code: According to the Criminal Code, a legal entity may be held criminally responsible for offenses committed on their behalf by their organs or representatives.

9. Is the State taking steps to ensure, through judicial, administrative, legislative or other appropriate means, that when business-related human rights abuses occur within their territory and/or jurisdiction those affected have access to effective remedy?

So far, there are two known cases, where the State took legal steps to ensure human rights compliance in a business context. (…) Another case relates to the death of an environmental activist, Mr. Chut Wutty. He was killed in April 2012 while researching alleged illegal logging and land seizures in Koh Kong Province. The Prime Minister established a governmental investigation committee which led to proceedings before the Koh Kong Provincial Court. In October 2012 the Court decided that Wutty had been killed by a military officer named Rattana who had then accidentally been shot to death by the head of the logging company’s security guards in an attempt to prevent further shooting. As a consequence, the Court decided to close the case on Chut Wutty’s death given the murderer’s death. It proceeded to sentence the head of security to two years imprisonment for the accidental killing of Rattana. (…)

9.2. What barriers to access to remedy through these State-based grievance mechanisms have been reported?

There are no governmental reports, but the UN Special Rapporteur concluded that the main problem is not a lack of a legal framework but its implementation: “The majority of the challenges I have identified in this report […] derive from a failure to apply the domestic legal framework – that is, the laws, policies and regulations that the Government itself has developed […]. The granting and management of economic and other land concessions in Cambodia suffer from a lack of transparency and adherence to existing laws. Much of the legal framework on these matters is relatively well developed on paper, but the challenge is with its implementation in practice.”

Instruments (Cambodia)

ASEAN, Human Rights Declaration[17]

5. Every person has the right to an effective and enforceable remedy, to be determined by a court or other competent authorities, for acts violating the rights granted to that person by the constitution or by law.

The Constitution of the Kingdom of Cambodia[18]

Article 39

Khmer citizens have the right to denounce, make complaints, or file claims for reparations of damages caused by any breach of law by state and social organizations or by staff of those organizations. The settlement of complaints and the reparations of damages are of the competence of the courts.

Cambodian Code of Civil Procedure[19]

10. Concept of individual rights

Individual rights include the right to life, personal safety, health, freedom, identity, dignity, privacy, and other personal benefits or interests.

13. Right to damages

The provisions of Article 11 (Right to prohibition) and Article 12 (Right to demand elimination of the effects of an infringing act) shall not prevent a person who has suffered an infringement of their individual rights from seeking damages for any harm suffered therefrom in accordance with the provisions regarding tortious acts.

743. Elements of general tort and burden of proof

(1) A person who intentionally or negligently infringes on the rights or benefits of another in violation of law shall be liable for the payment of damages occurring as a result.

(2) Paragraph (1) shall apply mutatis mutandis to cases where damages have occurred due to non-performance of a certain act with respect to which the actor is obligated to perform such act.

(3) Except as otherwise provided in this Code or in other laws, the person seeking damages must prove the intent or negligence of the tortious actor, the causal relationship between the actions of the tortious actor, the damages that occurred, and the damages suffered by the injured party.

747. Employer’s liability

(1) A Person who uses an Employee to perform work is liable for damages caused in violation of law to another in the performance of that work by the Employee through the Employee’s intent or negligence.

(2) A person charged with supervising an Employee in place of the Employer bears the same liability as the Empoyer. This shall not apply where supervision was properly performed. (…)

748. Tortious act of juridical person

(1) Should a director or other legal representative of a juristic person intentionally or negligently causes harm to another in violation of law in the exercise of such person’s duties, the juristic person shall be liable for the payment of damages.

(2) A juristic person that pays damages in accordance with paragraph (1) may demand compensation from the representative who committed the tortious act.

CCHR, Business and Human Rights Handbook for Cambodia[20]

2.4 Providing access to remedy

The Guiding Principles visualize remedial mechanisms taking a variety of forms, thus ensuring maximum flexibility for users and ease of use. Certainly, the court system must be a key player. However, litigation should always be as a last resort and every attempt made to settle disputes without the need for court intervention. Therefore, it is important that alternative dispute resolution mechanisms are available that stem from both businesses and the State.

In the Cambodian context, issues with State-based judicial mechanisms are particularly pronounced as court independence and impartiality are frequently questioned, and the judiciary is often used by the political elite to suppress opposition. This issue is particularly pronounced in a country where the activities of big business and big government are so tightly involved, with the courts often arbitrarily resolving disputes in favor of businesses with State connections. Issues with the impartiality of the court system in Cambodia are particularly evident in relation to land disputes.

For those who find themselves involved in land disputes, there are five means of dispute resolution currently available. The five methods are: (…)

5. Court System:the courts have jurisdiction over disputes involving registered or titled land. If the parties are not satisfied, the case can be filed with the Court of Appeal. Dissatisfied parties of disputes submitted to the National Cadastral Commission may also file an appeal with the Court of Appeal. Courts have jurisdiction over cases of forced evictions as well as contract and inheritance disputes, irrespective of the registration status of the land. If the dispute is related to unregistered land, however, the parties must first go through the Cadastral Commission.

While it is clear that Cambodians affected by land disputes have many dispute resolution mechanisms available to them, they have proven to be largely ineffective and inaccessible, and thus for the most part, do not effectively provide access to remedy.

Inclusive Development International, Class Action Lawsuit against Mitr Phol[21]

I. The parties

The plaintiffs are two Cambodian citizens residing in Samrong District, Oddar Meanchey Province, in northwestern Cambodia. The plaintiffs represent a class of approximately 600 families who resided and cultivated arable land in the Samrong District villages of Bos, O’Bat Moan, Taman, Trapiang Veng and Ktum when the defendant commenced the activities in Cambodia that are the subject of the litigation. (…)

The defendant is Mitr Phol Sugar Corporation Limited, a privately owned group of companies domiciled in Thailand, which is controlled and owned mainly by the Vongkusolkit family through the holding company Mid-Siam Sugar Co., Ltd. The defendant engages in large-scale sugarcane cultivation, and production and distribution of sugar, with operations in Thailand, China, Australia, Laos and formerly Cambodia. (…)

II. The facts

In January 2008, the Cambodian Ministry of Agriculture, Forestry and Fisheries (MAFF) granted three 70-year economic land concessions (ELCs) for industrial sugarcane production in the Samrong and Chongkal districts of Oddar Meanchey province to the three companies linked to Mitr Pohl.

The three concessions together totaled 19,736 hectares (123,350 rai) and were more or less adjoined. Cambodian Land Law Article 59 says that “Land concession areas shall not be more than 10,000 hectares” and that “the issuance of land concession titles on several places relating to surface areas that are greater than [10,000 hectaress] in favor of one specific person or several legal entities controlled by the same natural persons is prohibited.” (…)

According to a letter issued in 2007 by provincial authorities, 31 villages occupying an area of 4,500 hectares in three communes were located within the boundaries of the concessions that were proposed at that time. In May 2007, the proposed land concessions were demarcated and villagers were warned to stop using the land that overlapped with the concessions. In April 2008, land clearance activities began.

Throughout 2008-2009, the plaintiffs and group members were forced to give up their land for the Angkor Sugar Company concession. Affected households lost extensive rice fields, plantation/orchard land, and grazing land as well as the associated crops that sustained their livelihoods. Crops including rice, watermelon, fruit, vegetables, maize, cassava, sweet potatoes and soybean were lost. Most affected households lost five hectares of rice fields on average. Annual market-related losses from rice crops averaged about $1,000 per family. Compensation provided for these losses was generally a plot of inferior land that was much smaller than what they lost and often already owned by others.

Common property resources, including community-managed forests, were also lost or degraded as a result of Mitr Phol’s plantation development. The Angkor Sugar concession effectively reduced the size of the pending Ratanak Rukha / Rattanak Sambak Community Forest from 28,772 to 12,872 hectares, affecting the livelihoods of thousands of people in 16 villages. Extensive illegal logging of old growth, high-value timber took place within the concession.

The gravest human rights violations occurred in O’Bat Moan village, which was entirely destroyed to make way for the defendant’s plantation. In April 2008, 154 homes in the village were forcibly demolished by company staff under the guidance of local authorities. Further evictions occurred in October 2009, when around 100 homes were burned to the ground by approximately 150 police, military police and hired demolition workers. Most affected families lost all of their possessions during the evictions and were left landless and homeless. Even their rice crops, which they were about to harvest, were reportedly looted by company staff and security forces, leaving them without essential food and income in the immediate aftermath of the evictions. These forced evictions were preceded by arrests and an assault on the former village chief. Two community leaders were sentenced to two years in jail on charges of ‘clearing State forest,’ while two others were released after serving over six months in pre-trial detention. One was pregnant at the time and gave birth during her eight months of imprisonment.

Only 14 families from O’Bat Moan village received compensation in the form of a one-hectare plot of forested land in a remote area. The shelters that these families rebuilt there are rudimentary and do not provide sufficient protection against the elements. They lack access to sanitation and drinking water. Transportation is difficult to arrange, time consuming, and costly due to the remote location and poor conditions of the access road. Thus, access to health care, education and the outside community is severely limited. The closest school, for example, is 10 kilometers away. Many affected people resorted to illegal migration to Thailand after they lost their land to the sugar concessions.

The affected communities submitted multiple complaints and requests for intervention to the local and national authorities between 2007 and 2009. In response, community representatives were met with intimidation, harassment and arrest.

In 2010, after learning of Mitr Phol’s ownership of these concessions, Cambodian NGOs Bridges Across Borders Cambodia and LICADHO wrote to the company’s directors detailing the evidence of human rights abuses and violations of Cambodian law. No response was received.

In early 2011, the organizations submitted a complaint together with extensive documentation of abuses to the Better Sugarcane Initiative (now Bonsucro), of which Mitr Phol was a member. Rather than address the complaint, Mitr Phol withdrew its membership from Bonsucro.

On July 24, 2012, following the publication of an NGO report that exposed the abuses, the defendant issued a response to the Business and Human Rights Resource Centre that implied that the company should bear no responsibility for any human rights abuses or violations of Cambodian law that may have occurred in relation to its concessions because it relied entirely on Cambodian government assurances of propriety.

In May 2013, Cambodian NGOs Equitable Cambodia and LICADHO submitted a complaint on behalf of 602 affected families to the National Human Rights Commission of Thailand.

Following an investigation by the Thailand Human Rights Commission between 2013 and 2015, the defendant submitted a request to the Cambodian government to cancel its economic concessions in Cambodia. All three concession agreements were cancelled on August 9, 2015. It appears that the defendant closed Angkor Sugar as a company that year as well.

On March 28, 2018, a group of Cambodians who were forcibly displaced and dispossessed to make way for a sugarcane plantation owned and operated by Mitr Phol Sugar Corporation filed a class action lawsuit against the company in the Civil Courts of Bangkok, Thailand, where Mitr Phol is domiciled.

Amnesty International, Cambodian Villagers Sue Mitr Phol to Thai Court[22]

On 17 July 2020, Amnesty International submitted a third-party intervention (amicus curiae brief) to the Bangkok South Civil Court in the case of Smit Tit, Hoy Mai & Others vs. Mitr Phol Co. Ltd.1 The submission was made ahead of a crucial ruling in the landmark business and human rights case set to be announced tomorrow, 31 July.

This case is significant from a regional business and human rights perspective as it could set an important precedent by enabling cross-border accountability for human rights abuses involving corporate actors in Southeast Asia. The submission by Amnesty International seeks to assist the court by setting out relevant international legal principles and standards, including Thailand’s obligations in relation to the right to remedy, access to justice, and non-discrimination in the context of transnational corporate abuses of human rights. (…)

The National Human Rights Commission of Thailand has previously investigated the land dispute at the heart of this case and found in 2015 that “[l]and management under the concessions granted to Mitr Phol Sugar Company Limited caused adverse effects and human rights violations to Cambodian people [including] forced eviction away from the villages that they had been living for a long time”. The investigation also concluded that “it is Mitr Phol Company Limited’s direct responsibility because the company has business [which] benefit from the concession of the land” and recommended that “Mitr Phol Sugar Company Limited should provide remedies and compensations for the damage in Bos Village, O’Bat Moan Village, Taman Village, Trapaing Veng Village and Ktum Village in Oddar Meanchey Province, the Northeastern part of Cambodia”.

Tomorrow, the Bangkok South Civil Court will issue its decision in an appeal by the claimants against the first instance court’s denial of class action status – a decision which constrained access to justice for the majority of the evicted Cambodian villagers. Should the appeal succeed, the Bangkok South Civil Court will hear the case on its merits as a Class Action Lawsuit (CAL).

In respect of communal claims to secure justice for forced evictions, the UN Special Rapporteur on Adequate Housing has stated: “Access to justice must … extend to both individuals and groups. Support should be available for them to participate in all stages of rights claims and in the implementation of remedies.” (…)

Amnesty International, Submission in Mitr Phol Case[23]

The Right to an Effective Remedy in the Context of Class Actions

20. In the Kingdom of Thailand, class actions are enabled under a 2015 amendment to the Code of Civil Procedure (CCP). Article 222/12 of the CCP states, inter alia:

“(T)he court may allow the class action lawsuit… if the class action lawsuit would reflect more justice and more efficiency in comparison to the situation where the case is going through the ordinary civil case…”

21. Since the 2015 amendment to the CCP enabling class actions, a number of class action suits have been heard before the Thai courts on public interest and human rights grounds.  It is understood that the present case is the first case in which a transnational class action suit has been filed before the Thai courts since the 2015 amendment. (…)

24. The denial of recognition of a class on the basis of language, national or social origin could amount to a violation of States’ obligation to ensure access to justice in addition to a failure to ensure non-discrimination and equality before the law. (…)

25. There is no prohibition on transnational class actions or the recognition of classes of non-nationals under the CCP. Furthermore, Thailand’s binding international human rights obligations require that all applicants before the courts be treated equally and without discrimination, including on the basis of nationality, race, language, or social origin. Non-discrimination and equality are overreaching principles of international human rights law and essential to the enjoyment of all human rights. (…)

CCHR, Asia’s First Transboundary Class Action on Human Rights Abuses[24]

“Today’s win marks a huge step forward for the plaintiffs and all the people affected by the evictions. The voices of those who have been harmed can now be heard.  The court’s decision shows that access to justice is possible, and that their decade-long fight has not been for nothing,” said Eang Vuthy, Executive director of Equitable Cambodia.

For Thailand and the region, the decision changes the legal landscape, providing that class action legislation can be used in transboundary cases and to protect some of the region’s most vulnerable people. “The importance of this legal precedent cannot be overstated,” said Natalie Bugalski, Legal Director for Inclusive Development International.  “This is a David vs Goliath case that will redefine access to justice for the victims of corporate abuse in Southeast Asia and beyond.”

It is also a key test of corporate accountability. Mitr Phol is the biggest sugar supplier in the region and has counted some of the world’s largest consumer brands, including Nestle, Coca-Cola, Pepsi, Mars Wrigley and Corbion, as past and current customers.  While Coca-Cola took initial steps to investigate the allegations against Mitr Phol, it failed to use its leverage to compel the company to provide redress to the victims in Cambodia.  Instead, in 2018, Coca-Cola informed Inclusive Development International that it no longer sourced sugar from Mitr Phol. It has never reported the termination of the supply relationship publicly.

            Mitr Pohl is also a member of the sugar industry’s “sustainability” certification body Bonsucro, which is under scrutiny by the UK National Contact Point for the OECD (a government body that monitors the operations of British businesses overseas) for failing to hold Mitr Phol accountable for its abuses against these communities.

CCHR, Remedying Land-Related Rights Violations[25]

The purpose of this Briefing Note is to identify key issues pertaining to business human rights in Cambodia through the analysis of three land-related conflicts, and to propose recommendations in order to prevent and remedy related human rights violations. (…)

6.3. The remedies offered do not qualify as an effective remedy under human rights law

(…)Under human rights law, a remedy must be timely, and repair all aspects of the human rights violation. All victims must also be entitled to compensation for the loss of the properties, irrespective of whether or not they hold a property title. In particular, any financial compensation for forced evictions must cover all economically assessable damage, such as the loss of life or limb, or of livestock/land/tree/crops; physical or mental harm; lost opportunities, including employment, education and social benefits; material damages and loss of earnings, including loss of earning potential; moral damage; costs required for legal or expert assistance, medicine and medical services, and psychological and social services; administrative costs; resettlement and transportation losses. Where land has been taken, the victim should be compensated with land of the same quality, size and value, or better. In case of relocation, the State should provide safe and secure access to essential food, potable water and sanitation, basic shelter and housing, appropriate clothing, essential medical services, livelihood sources, fodder for livestock and access to common property resources previously depended upon, as well as education for children and childcare facilities.

Finding 7. Alternative and innovative dispute resolution mechanisms should be facilitated

In the two cases involving foreign companies, which are also the cases where the dispute has lasted the longest (more than 10 years), victims have used alternative processes to seek a resolution to the dispute. While those are not to substitute the recourses which should be put into place in Cambodia itself, they may constitute additional ways by which the victims can obtain a remedy for the land dispute.

7.1. Recourse to foreign courts

In the two cases involving foreign companies, communities are attempting to obtain a remedy by filing a civil suit in the courts where the companies are registered: Thailand, for Mitr Phol; and France, for Socfin-KCD. (…)

In the Socfin-KCD case, in July 2015, a civil liability lawsuit was started in France, against two major Socfin-KCD’s shareholders, the Bolloré group and the “Compagnie du Cambodge” (‘Company from Cambodia’) owned by French tycoon Vincent Bolloré, on behalf of 51 plaintiffs from Bu Sra village. The plaintiffs allege human rights violations and environmental damage and request the restitution of their land as well as 65,000 euros as compensation for material and moral damages. On 10 February 2017, following a request by the two companies, the Tribunal required the plaintiff to submit a number of documents to establish that they have a legitimate claim to the land they accuse the companies of grabbing, including official documents establishing the “existence, nature, location, exact size and reference” of the land which is requested to be given back and official and notarized documents establishing property rights of each individual over the disputed land. The decision further scheduled a status conference on 29 May 2017. CCHR could not locate further information on the case, but when it met the communities, it was told that a hearing was scheduled for late 2018, where the victims would travel to France and be heard. CCHR was also informed that some community representatives withdrew from the complaint in order to join the mediation process. The Bolloré group denied having any control over Socfin-KCD’s actions, which it alleged were under Socfin Group’s Chief Executive Officer (‘CEO’), Hubert Fabri. In light of the difficulty of holding companies responsible for activities of subsidiaries alone (referred to as the ‘corporate veil’), the disbalance between an indigenous community with limited means and a multinational group worth billions of euros, and the fact that it will be challenging for the plaintiffs to provide the requisite documents, there is little chance of the lawsuit’s success.

BHRRC, Strategic Lawsuits against Public Participation[26]

International instruments protect the rights to freedom of expression, association, and peaceful assembly. However, attacks against those who exercise these rights are pervasive and destructive. One type of attack is judicial harassment which is on the rise globally. In 2019 alone, Business & Human Rights Resource Centre recorded 294 instances of judicial harassment around the world, compared to only 86 cases when in 2015. Southeast Asia is second only to Central America in the number of cases recorded, with approximately half of these cases exhibiting elements of a SLAPP (Strategic Lawsuit Against Public Participation).

A business-linked SLAPP has these characteristics:

• It is a civil, criminal, or administrative lawsuit;
• It is filed against a human rights defender (HRD) exercising his/her freedoms of expression, association, and/or peaceful assembly to speak about and/or act on matters related to a business’ operations;
• It has the intention of silencing or intimidating the HRD from further engaging in criticism, opposition, public participation, and similar activities.

In Southeast Asia (…) there are promising developments in the rulings of various courts in the region that should provide the necessary impetus for deeper legal reform against SLAPPs. Some courts have explicitly recognised the value of activists and protected their right to criticise prejudicial business operations. Other courts have extended protections to journalists and expert witnesses. Some courts upheld the right of the people to seek redress and remedy for harms caused by businesses. This Briefing Note highlights these cases as starting point for recommendations of deeper reform in policy and practice of governments, business, and civil society.

This Briefing Note recommends, among other things, the following:

• For governments to enact laws that protect human rights defenders, prohibit SLAPPs, and penalise businesses that file these types of cases.
• For businesses to adopt a strong policy of non-retaliation against HRDs and nontolerance for attacks against HRDs and instead create grievance mechanisms based on engagement and dialogue with all stakeholders.
• For civil society to continue documenting SLAPPs in order to understand the trends and develop both offensive and defensive strategies against it by expanding networks of support for HRDs to continue their work.

Suing human rights attorneys, expert witnesses, and NGO workers

It is common for companies to sue protesting community residents and workers, but there are now many cases of suits against human rights attorneys, expert witnesses, and NGO workers who support the work of HRDs.

Expert witnesses have been sued in Indonesia and these cases are discussed in this Briefing Note. A Philippine lawyer and an NGO leader face libel and slander cases, after they joined a workers’ protest where allegations were made that the company is a labor only contracting company in violation of Philippine law. These cases are still pending in court.

In Cambodia, the 2018 World Report on the Situation of Human Rights Defenders reported that activists working for environmental NGO, Mother Nature, were convicted for “violation of privacy” and “incitement to commit a felony” after they were caught filming two large vessels suspected of illegally carrying sand.

Questions

1. Should home states of TNCs open their courts to plaintiffs in other countries? What measures could home states take to increase access to effective remedy for victims?
2. What are the barriers that prevent a host state from enforcing its court judgements against foreign corporations that have violated human rights in its territory?
3. Why is it so difficult to sue parent companies in their home countries? What are the obstacles that victims face in their attempt to obtain justice?
4. How do NGOs support victims and improve their access to remedy?
5. Are the judicial mechanisms in Cambodia effective? If so, to what extent?

Further Readings

• Antoni Pigrau Solé et al, Human Rights In European Business – A Practical Handbook For Civil Society Organisations And Human Rights Defenders (2016) http://humanrightsinbusiness.eu/wp-content/uploads/2016/09/HUMAN_RIGHTS_IN_EUROPEAN_BUSINESS_EN.pdf.
• Claire Bright, ‘The Civil Liability of the Parent Company for the Acts or Omissions of its Subsidiary: The Example of the Shell Cases in the UK and in the Netherlands’, in A. Bonfanti, Business and Human Rights in Europe (Routledge, 2019) https://www.academia.edu/36926658/The_Civil_Liability_of_the_Parent_Company_for_the_Acts_or_Omissions_of_Its_Subsidiary_The_Example_of_the_Shell_Cases_in_the_UK_and_in_the_Netherlands.
• Beth Stephens, ‘The Curious History Of The Alien Tort Statute’, 89 Notre Dame Law Review 1467 (2014) https://scholarship.law.nd.edu/cgi/viewcontent.cgi?article=4540&context=ndlr.
• Jock McCulloch, ‘Beating the odds: The quest for justice by South African asbestos mining communities’, Review of African Political Economy (2005) www.jstor.org/stable/4006910.
• Sherchan Depika, Cambodia: The Bitter Taste of Sugar Displacement and Dispossession in Oddar Meanchey Province, Action Aid Cambodia and Oxfam GB (2015) https://cambodia.actionaid.org/publications/cambodia-bitter-taste-sugar-displacement-and-dispossession-oddar-meanchey-province.
• Yun Mane, ‘Access to Remedy for Indigenous Peoples Affected by Corporate Activities in Cambodia’, in Cathal M. Doyle, Business and Human Rights: Indigenous Peoples’ Experiences with Access to Remedy – Case Studies from Africa, Asia and Latin America, (2015) pp. 187-210, http://eprints.mdx.ac.uk/23979/.
• Jabir and others v Textilien und Non-Food GmbH, Legal Opinion on English Common Law Principles on Tort, Essex University Business and Human Rights Project (7 December 2015) www1.essex.ac.uk/ebhr/documents/Legal_Opion_Essex_Jabir_et_al_v_KiK_2015.pdf.
• Salil Tripathi, Bhopal and the Elusive Quest for Justice (2014) www.ihrb.org/other/remedy/bhopal-and-the-elusive-quest-for-justice.
• David Thomas, Silicosis deal offers way forward for South African mining (2018) http://africanbusinessmagazine.com/region/southern-africa/silicosis-deal-offers-way-forward-for-south-african-mining/.
• ‘Dutch appeals court says Shell may be held liable for oil spills in Nigeria’, the Guardian (18 Dec 2015) www.theguardian.com/global-development/2015/dec/18/dutch-appeals-court-shell-oil-spills-nigeria.
• John Vidal, ‘Shell announces £55m payout for Nigeria oil spills’, the Guardian (7 Jan 2015) www.theguardian.com/environment/2015/jan/07/shell-announces-55m-payout-for-nigeria-oil-spills.
• Inter-American Court of Human Rights, Sarayaku vs. Ecuador (2012) www.escr-net.org/caselaw/2012/pueblo-indigena-kichwa-sarayaku-vs-ecuador.
• Amnesty International et al., Seeking justice: the rising tide of court cases against Shell (2018) www.greenpeace.nl/Global/nederland/report/2018/klimaat_en_energie/Investor%20Briefing%20Seeking%20justice%20the%20rising%20tide%20of%20court%20cases%20against%20Shell.pdf.
• Chiquita, Shareholder Derivative Complaint (2007) www.law.du.edu/documents/corporate-governance/international-corporate-governance/in-re-chiquita-verified.pdf.
• Business and Human Rights Resource Centre, Texaco/Chevron lawsuits (re Ecuador) www.business-humanrights.org/en/texacochevron-lawsuits-re-ecuador.
• EU Parliament, Access to legal remedies for victims of corporate human rights abuses in third countries (2019) http://www.europarl.europa.eu/RegData/etudes/STUD/2019/603475/EXPO_STU(2019)603475_EN.pdf.
• International Commission of Jurists, Achieving Justice for Gross Human Rights Violations in Cambodia – A Baseline Study (2017) https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&cad=rja&uact=8&ved=2ahUKEwjWmJHQ85_rAhWRdn0KHVbABBUQFjAAegQIARAB&url=http%3A%2F%2Fwww.refworld.org%2Fpdfid%2F5a212f144.pdf&usg=AOvVaw2C9uPIgnrEiTT_eRHT5oUQ.

---

[1] Human Rights Council, UN Guiding Principles on Business and Human Rights, Seventeenth Session (2011) http://www.ohchr.org/Documents/Publications/GuidingPrinciplesBusinessHR_EN.pdf.

[2] Universal Declaration of Human Rights (1948) www.ohchr.org/en/udhr/pages/searchbylang.aspx.

[3] International Covenant on Economic, Social and Cultural Rights (1966) www.ohchr.org/en/professionalinterest/pages/cescr.aspx.

[4] UN, Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (2006) https://documents-dds-ny.un.org/doc/UNDOC/GEN/N05/496/42/PDF/N0549642.pdf?OpenElement.

[5] United Nations High Commissioner for Human Rights (OHCHR), Improving Accountability and Access to Remedy for Victims of Business-Related Human Rights Abuse (2016) www.ohchr.org/Documents/Issues/Business/DomesticLawRemedies/A_HRC_32_19_AEV.pdf

[6] Kiobel v. Royal Dutch Petroleum Co., 133 S.Ct. 1659 (2013) (United States) https://www.supremecourt.gov/opinions/12pdf/10-1491_l6gn.pdf.

[7] Chandler v Cape [2012] EWCA Civ 525 www.bailii.org/ew/cases/EWCA/Civ/2012/525.html.

[8] Canada, Choc v Hudbay Minerals Inc. Hudbay’s motion to strike (2013)www.chocversushudbay.com/wp-content/uploads/2010/10/Judgment-July-22-2013-Hudbays-motion-to-strike.pdf.

[9] Canada, Araya v. Nevsun Resources Ltd., 2016 BCSC 1856 (The Supreme Court Of British Columbia) https://business-humanrights.org/sites/default/files/documents/Judge%20Abrioux%2C%20re%20Araya%20v.%20Nevsun%20Resources%20Ltd.%2C%2010-06.pdf.

[10] The Social and Economic Rights Action Center for Economic and Social Rights v. Nigeria, African Commission on Human and Peoples’ Rights Comm. No. 155/96 (2001). http://hrlibrary.umn.edu/africa/comcases/155-96b.html.

[11] United States, Statement of the Plaintiffs in Wiwa v. Royal Dutch/Shell,

Wiva v. Anderson, and Wiva v. SPDC (Settlement Agreement) (8 June 2009) https://ccrjustice.org/sites/default/files/assets/Wiwa_v_Shell_SETTLEMENT_AGREEMENT.Signed-1.pdf.

[12] United Kingdom, Okpabi and Others v. Royal Dutch Shell Plc EWCA Civ 191, (2018) www.business-humanrights.org/sites/default/files/documents/Shell%20Approved%20Judgment.pdf.

[13] United Kingdom, Lungowe & Ors v Vedanta Resources Plc & Anor [2017] EWCA Civ 1528 (13 October 2017)  www.bailii.org/ew/cases/EWCA/Civ/2017/1528.html.

[14] Philipp Wesche, Miriam Saage-Maaß, ‘Holding Companies Liable for Human Rights Abuses Related to Foreign Subsidiaries and Suppliers before German Civil Courts: Lessons from Jabir and Others v KiK’, Human Rights Law Review 16:2 (2016) https://academic.oup.com/hrlr/article/16/2/370/2356211.

[15] Daniel Augenstein and Nicola Jägers, ‘Judicial Remedies – The Issue of Jurisdiction’, in Juan José Álvarez Rubio and Katerina Yiannibas (eds.), Human Rights in Business: Removal of Barriers to Access to Justice in the European Union (2017) (e-book, free download) www.taylorfrancis.com/books/e/9781351979153 (footnotes omitted).

[16] Human Rights Resource Centre, Business and Human Rights in ASEAN: A Baseline Study (2012) https://hrrca.org/business-and-human-rights-in-asean-a-baseline-study/.

[17] Association of South-East Asian Nations, ASEAN Human Rights Declaration (2013) https://www.asean.org/storage/images/ASEAN_RTK_2014/6_AHRD_Booklet.pdf.

[18] Cambodia, Constitution of the Kingdom of Cambodia (1993) https://www.ilo.org/dyn/natlex/docs/ELECTRONIC/35789/72242/F1994980854/KHM35789.pdf.

[19] Cambodia, The Code of Civil Procedure of the Kingdom of Cambodia (2006), https://www.jica.go.jp/project/english/cambodia/0701047/materials/index.html.

[20] Cambodia Center for Human Rights, Business and Human Rights Handbook for Cambodia (2016) https://cchrcambodia.org/admin/media/report/report/english/2016_Handbook_BHR_English.pdf.

[21] Inclusive Development International, Case Brief: Class Action Lawsuit by Cambodian Villagers Against Mitr Phol Sugar Corporation (2 April 2018) https://www.inclusivedevelopment.net/wp-content/uploads/2018/03/Mitr-Phol-Class-Action-Case-Brief.pdf.

[22] Amnesty International, Thailand: Eviction Cambodian Villagers Sue Sugar Giant Mitr Phol; Amnesty International Submits Third Party Intervention to Thai Court (30 July 2020) https://media.business-humanrights.org/media/documents/files/documents/Public_Statement_AI.pdf.

[23] Amnesty International, Third Party Submission by Amnesty International to the South Bangkok Civil Court in the Case of Smin Tit, Hoy Mai and Others v Mitr Phol Co. Ltd., ASA 39/2753/2020 (2020) https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&ved=2ahUKEwjh08GusZ_rAhURCqYKHS1JAL8QFjABegQIARAB&url=https%3A%2F%2Fwww.amnesty.org%2Fdownload%2FDocuments%2FASA3927532020ENGLISH.pdf&usg=AOvVaw055jwMAKcuulCxPBIxl_99.

[24] Cambodian Center for Human Rights (CCHR), Thai Appeal Court Decision Paves the Way for Asia’s First Transboundary Class Action on Human Rights Abuses (31 July 2020) https://cchrcambodia.org/index_old.php?title=Thai-Appeal-Court-decision-paves-the-way-for-Asia-s-first-transboundary-class-action-on-human-rights-abuses&url=media/media.php&p=alert_detail.php&alid=80&id=5&lang=eng. 

[25] Cambodian Center for Human Rights (CCHR), Briefing Note on Business and Human Rights – Preventing, Mitigating and Remedying Land-Related Rights Violations in the Kingdom of Cambodia: Seven Areas for Improvement (December 2018) https://cchrcambodia.org/index_old.php?url=media/media.php&p=analysis_detail.php&anid=84&id=5.

[26] Business & Human Rights Resource Centre, Strategic Lawsuits against Public Participation: Southeast Asia Cases & Recommendations for Governments, Businesses, & Civil Society (2020) https://media.business-humanrights.org/media/documents/files/documents/SLAPPs_in_SEA_2020_Final_for_website.pdf.