Transnational Torts Flashcards
What are transnational torts ?
Transnational torts are examples of private negligence claims that are brought by the victims of other seas corporate wrongs against parent companies domiciled abroad - aristova ‘tort litigation against transnational corporations in the English courts : the jurisdictional challenge
Why have transnational torts emerged
Aristova - historically legal remedies to hold parent companies to account have been lacking
Now jurisdictions hold a route in civil liability as an alternative.
However no comprehensive judicial consideration of substantive rules as most cases fail at procedural stage or settle outside of court
Why and what are the examples of legal remedies lacking to hold parent companies accountable
Salomon v salmon makes clear that companies have separate corporate personality so difficult to hold shareholder personally accountable
Cape v Adam’s - same in terms of corporate groups unless very specific circumstances which have now appear to have reduced in prest v petrodel
Transnational torts are still difficult because general rule that no duty to act to prevent a person suffering injury at hands of a third party
This makes proving that parent company has duty v difficult
Equally how far does the duty extend to if there is one
What does the case of chandler say and why is chandler special
Deals with whether parent company owes a duty to employees of subsidiary
Held that the duty would be through an assumption of responsibility and parent did not need to have full control over the subsidiary
Did not need to go anywhere near corporate veil
Chandler is special because it is the only case to date whereby parent has been found at trial to owe a duty
Found duty of care because 1) business of parent and subsidiary are in a relevant respect the same 2) the parent has or ought to have superior knowledge of health and safety in industry 3) the subsidiary system of work is u safe and parent knew or ought to have known 4) the parent knew or ought to have foreseen that subsidiary or its employees would rely on it using that superior knowledge for employees protection
What is begum v maran
Case about the tanker sold and then worker died in Bangladesh working on it
Concerned strike out application
Tried 2 routes to establish duty of care
1- through donoghe and Stevenson
2- dangerous situation created
Held that Maran had created a dangerous situation
Causation touched on a little bit - said poor working conditions in Bangladesh not a novus actus intervenius as entirely predictable
What is Vedanta
Poisonous toxins had been released from subsidiary mines in Zambia causing harm to residents
Concerned whether English court had jurisdiction
The criminal procedure rules part 6 1998 says jurisdiction can be achieved through the necessary or proper party gateway
It was said that the proper place to bring the claim was in Zambia but because there was a risk in obtaining substantial justice by doing this. The English courts had jurisdiction and Vedanta was a proper party
Would not be creating new liability in negligence - parent will only owe duty if found under usual principles
No abuse of eu law
Triable issue because of management
Zambia proper place because of risk of irreconcilable judgment
No access to substantive justice because lack of funding and equipped legal team
What is the case of Okpabi
Shell subsidiary oil spill caused environmental damage - claim brought by king of oagle community
Issue was jurisdiction - argued that there was no jurisdiction if there was no triable issue agaisnt patent
Links the importance of a duty of care in with jurisdiction
If there was no triable issue then subsidiary was not a proper party to proceedings as there would be no proceedings
Relied on parent taking control of management
Providing defective advice
Group wide safety policies
Holding out that has supervision
Lack of diclosure and witness statements disagreeing on control meant case to be answered
What does young v AASA say
It is difficult if not impossible to bring a claim agaisnt purely a foreign subsidiary in England
Aristova - tort litigation against transnational corporations in the English courts : the challenge of jurisdiction
Brussels 1 key instrument for cross boarder disputes
If domiciled in the eu member state can be sued there irrespective of where cause of action took place
Civil procedure rules deal with outside eu - reasonable prospect of success and proper place to bring the claim
Civil procedure rules practice direction 6b - necessary or proper party gateway
Ian frame - coded copper, toxic water. Multinational corporations , environmental degradation and tort law
Ahmed, private international law and substantive liability issues in tort litigation against multinational companies in the English courts
Tort claims are an exception to the separate legal personality
International law is not effective and lack of international comprehensive treaty means companies will often pick the jurisdiction with least restrictions on shareholder regulation etc
Vedenta - jurisdictional issue of good and arguable case against vedenta
Civil procedure rules - can use necessary and proper party so long as real triable issue and England is proper place to bring claim
Okpabi - no special test to determine responsibility of parent company
Post Brexit implications
James goudkamp - duties of care between actors in supply chains
Talks about the effects of holding a duty of care - last stage of caparo test. Could lead to companies trying to distance themselves which could have negative effect on vulnerable employees
Cut off point would be supply chain outsourcing
Meeran- tort litigation against multinational corporations for human rights abuses
Alien tort statute 1789 gives US courts jurisdiction over human rights violations
However does not recognise liability of corporations. Therefore not sufficient remedies in human rights either
Cannot use forum non conveniens for Brussels 1
What are the tests in Caparo
Damage must be foreseeable
Relationship of proximity
Fair just and reasonable to impose a duty
Did they argue abuse of eu law in vedenta and what was outcome
Did argue abuse of eu law because only reason sueing vedenta was to have foreign subsidiary in uk law
Not abuse because we’re seeking remedy against vedenta
