Accessing courts in foreign countries raises issues specific to the context of corporate accountability.
Below are some examples of barriers to accessing courts in foreign countries and ways to overcome them:
(a) Forum Non Conveniens
In some countries (especially the US), the principle of forum non conveniens allows the court to decide that the case should not be heard because there are more convenient courts available in other countries (i.e. the country where the activities took place).
This is based on:
- The balance of convenience for the parties; and
- The balance of public interests between the forum court and the place where the claim arose.
Example: Bhopal case (US)
In the Bhopal case (see “How Can I Bring a Civil Claim Against a Business in National Courts?”), a claim was brought in the US against the US parent and Indian subsidiary in the US courts.The US courts dismissed the claim on the basis of forum non conveniens in favour of the case proceeding in India.
However, in some cases, courts have dismissed forum non conveniens arguments on the basis that there isn’t a real chance of accessing justice in the courts of the country where the abuses happened.
Sometimes, this can be because of corruption in the other country.
Example: The Newmont Mining Case in Peru
The plaintiffs (a farming family in Peru) have filed a request for an injunction against Newmont Mining Corporation, one of the world’s largest gold producers, and its Peruvian subsidiary. They argue that Newmont led a campaign of harassment and abuse against the plaintiffs to force them off their land.In March 2019, a US Court of Appeals reversed a lower court decision accepting Newmont’s arguments of forum non conveniens (and that the case should be heard in Peru) citing evidence of corruption in the Peruvian courts.
The case could then be heard in US courts.
There may be practical difficulties (like access to funding) about bringing your case in your country that may persuade a court in a different country to hear the case.
Example: Lungowe v Vedanta (UK)
In this case, (see above), although the UK Supreme Court accepted, in theory, that Zambia was the best place to take the case (because that’s where the abuses occurred), the court held the case could still be brought in the UK.This was because the court considered there a real risk that the claimants could not obtain “substantial justice” in Zambia, since (i) legal aid would not be available, conditional fee agreements are illegal, and the claimants are too poor to fund legal representation; and (ii) Zambia lacks legal teams of sufficient size and experience to pursue mass claims of this nature effectively.
(b) Presumption Against Extraterritorial Application
In some countries, there is also a general presumption against the extraterritorial application (i.e. application to events in different countries) of national laws.
Example: Kiobel v Royal Dutch Shell Petroleum (US)
Cases used to be brought in US courts to secure accountability for human rights abuses in other countries under the Alien Torts Statute.However, this route has been largely closed due to US courts deciding there is a presumption against the extraterritorial application of the statute.
The US Supreme Court held that a claim under statute was possible only where there existed a substantial territorial connection between the alleged human rights abuse and the US.
In this case it excluded a claim brought by Nigerian claimants against a non-US corporation for acts occurring in Nigeria.
If the claim is based on the Alien Torts Statute, it must be shown that the intent behind the statute is for it to allow claims arising outside the jurisdiction.
In European courts, this generally isn’t a big a problem and there is a wave of cases now being brought in different European countries.
- For example, similar cases to Kiobel have been brought in the UK and The Netherlands.
(c) Applicable Law
Although you may be able to sue a foreign business in its home country, the general rule is that your case will be decided according to the law in the country where the damage occurred (i.e. your country or the host country).
This can lead to problems:
- If the law in the host state sets out lower standards of protection (e.g. lower health and safety standards and labour standards) than in the business’ home country, you may not be able to rely on the higher standards.
- If the law in the host state has a shorter statute of limitations (i.e. a time limit), the period you are allowed to bring your claim may have expired even if the case could have proceeded under the foreign country’s laws.
Example: Jabir v KiK
A court in Germany held that the applicable law in the case was the law of Pakistan because this is where the damage occurred.The court concluded that the two-year legal limitation period for bringing a claim under Pakistan’s law had expired before the claims were filed and so dismissed the claim. Under German law, the claimants would not have been time-barred.
(d) Financing Your Case
Access to courts is expensive, especially when it involves travelling to another country. Legal aid may help but its availability in cases involving corporate defendants will depend on the rules applicable in the foreign country.
For more information see “How Can I Finance my Action?”
(e) Practical Difficulties when Bringing a Case in Another Country
Another difficulty in bringing cases in other countries is that you need to present evidence collected in one country in the courts of another country.
- This could involve bringing witnesses (who may also need to be granted a visa to appear in court) from your country to courts in another country.
- This also means navigate your way around the laws of evidence in a new country.
Make sure you bring ALL relevant evidence when travelling from one country to another.
- Be careful to preserve the evidence in transport and ensure it’s not damaged.
- Try to make a digital copy as much evidence as possible and keep copies of your evidence in a secure location.
- Ensure that your evidence is held in a secure way. You may need to encrypt digital evidence. Make sure everything is password protected.
If witnesses need to appear in the court in another country, ensure you have checked they are able and willing to travel. This will need to be funded.
- Consider whether video appearances or written witness statements can be used instead of physical appearances.
- Courts in some countries will try to work with you to overcome difficulties in getting witnesses to travel abroad.
Example: Kalma v African Minerals Limited (UK)
In this case,a UK High Court judge travelled to Sierra Leone to take witness statements.
Because you will need expertise in the law of another country and (most likely) assistance in overcoming some of the difficulties associated with bringing a case in another country, it is very important you find an organisation or law firm in the country you want to bring the case that is able to see.
