Corporate Accountability Lawsuits for Human Rights Abuses 6 November 2009 Surabhi Chopra Business & Human Rights Resource Centre

www.business-humanrights.org/LegalPortal/Home

Governance gap

- Subsidiaries – separate legal personality - Regulation – domestic not cross-border - Host country - corruption -Capacity of the system -FDI / accountability -Rights of standing - Non- citizen - wrongful act – abroad – extra-territorial jurisdiction - Forum non conveniens

Legal strategies

What branch of law?

-Criminal law -Tort law -Environmental law - Statutory regulation -Public law / fundamental rights -Corporate law?

-Anti-bribery -Disclosure obligations

Criminal law

- Provisions in domestic criminal law -Corruption -Criminal negligence -Against legal person - Prosecution by the state - Funds - Competence - Independence -Private prosecution -Legal fees

Criminal law

- Burden of proof - beyond reasonable doubt - Outcome - punishment - compensation - Stigma - Guilt / innocence Victim’s perspective - focus on accused

Tort law

- Civil suit - Elements - Breach of duty - Harm - Causation - Access to information - Burden of proof - balance of probabilities

Tort law

-Outcome - damages - national standards – does it scare them?

- pecuniary / non- pecuniary - exemplary damages - capturing environmental impacts, human rights impacts - loser pays legal fees

Tort law

Barriers to entry: -Forum non conveniens -Traditional tort categories – negligence, nuisance, trespass – are they well suited to your cause?

-Fees to file

Forum non conveniens

What is it?

-

inappropriate forum

-

plaintiff properly invoked the jurisdiciton of the court but inconvenient for court and defendant

-

defendant has to demonstrate inconvenience

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discretionary

Factors -Where did the cause of action arise?

-Where are the witnesses?

- Evidence and records?

-Overwhelming hardship to the defendant -The identity of the parties, motive -Conditions in the foreign forum

Forum non conveniens

- Recent developments - Canada - where were decisions made?

- UK -Could judicial infrastructure handle the case?

- Monterico Metals – torture and injury to Peruvians - Chevron – Ecuador - Civil law - generally, residence of defendant - exceptions in the Brussels Convention

Public law

-Judicial review of

administrative

action – powers derive from Constitution -Breached established standards - public sector - public activities by private sector - Fundamental rights jurisdiction State’s failure to protect -Designed for use against the State

Alien Tort Claims Act

-created under the U.S. Judiciary Act of 1789

"The 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”

- All the claimants – Aliens - Harmful conduct - Abroad - requires plaintiffs to assert certain violations of international treaties or public international law, rather than U.S. law

Alien Tort Claims Act

-2 centuries since enactment ?

-

Filartiga v Pena Irala 1980

-Allowed foreign nationals to pursue human rights violations in U.S. district courts even though they took place outside the United States - Used to bring law suits against MNCs -Failure rate?

-Procedural barriers - political question doctrine - exhaustion of domestic remedies - forum non conveniens

Litigation as strategy

- Legitimacy - Time - Costs - Victims - High risk - Pressure tactic – the shadow of litigation

‘GUILTY’: UK government blasts Vedanta in unprecedented attack

Yahoo 'helped jail China writer'

“Just like any other global company, Yahoo! must ensure that its local country sites must operate within the laws, regulations and customs of the country in which they are based.”

-- September 13, 2005

Yahoo! helps Chinese cops Author: Rebecca MacKinnon, fellow at Harvard Law School's Berkman Center for Internet and Society, on RConversation weblog Dated: 07 Sep 2005 Yahoo Under Fire Over Jailing of Chinese Journalist Author: Patrick Goodenough, Cybercast News Service (CNSNews.com) Dated: 08 Sep 2005 Comment: Thanks to corporations, instead of democracy we get Baywatch Author: George Monbiot, Guardian [UK] Dated: 13 Sep 2005 China: Yahoo information used to convict journalist Author: International PEN, Writers in Prison Committee Dated: 14 Sep 2005 Information supplied by Yahoo ! helped journalist Shi Tao get 10 years in prison Author: Reporters Without Borders Dated: 07 Sep 2005 FR: Le journaliste Shi Tao a été condamné à dix ans de prison sur la base d’informations fournies par Yahoo Hong Kong !

Clinton Urged to Raise Shi Tao Case at China Internet Summit Author: Reporters Without Borders Dated: 09 Sep 2005 FR: Bill Clinton appelé à soulever le cas de Shi Tao lors de la Conférence sur Internet de Shanghai

“I was shocked and dismayed by Yahoo's response…”

Mary Robinson

• President of Ethical Globalization Initiative • former United Nations High Commissioner for Human Rights • former President of Ireland

“I am appalled by Yahoo!’s response…Must we therefore expect Yahoo!, apparently lacking principles itself, to follow any practices, however much they may offend against wider considerations of human rights or international standards?”

Sir Geoffrey Chandler

•

Founder Chair, Amnesty International UK Business Group

•

former Director of Shell International

•

former Director General, UK National Economic Development Office

Almost a year later…

“deeply regrets the circumstances" that led to the jailing of the two journalists. [Jerry Yang, CEO of Yahoo] said it runs counter to company values.

”

Since then…

• US Congressional inquiry • Private settlement of Wang & Shi’s cases • Jerry Yang asked Condoleeza Rice to help get the release of Wang & Shi • More cases against Yahoo: Zheng Cunzhu v Yahoo, Guo Quan v Yahoo, Li Zhi v Yahoo • More cases against others: Guo Quan v Google • Global Online Freedom Act of 2006 (H.R. 4780) • Multi-stakeholder initiative on principles for freedom of expression & internet • Google: Global privacy standard • Yahoo! Sets up “human rights fund”

UNITED STATES

CANADA

Green Park & Green Mount International

AFRICA

ASIA

LATIN AMERICA

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