Vedanta v. Lungowe Symposium: Vedanta v. Lungowe and Access to Justice

[Lucas Roorda is a PhD candidate at Utrecht University on jurisdiction in foreign direct liability cases in EU Member States, and a policy advisor at the Netherlands Human Rights Institute. He can be found on Twitter at @lroordalaw. This blog only represents his personal view, and not those of any institution.]

This month’s seminal UK Supreme Court decision in Vedanta v. Lungowe, [2019] UKSC 20 has provided business and human rights scholars with much food for thought, on both substantive and procedural issues in transnational litigation against parent and subsidiary companies. Gabrielle Holly’s excellent post already outlined how the Supreme Court reintroduced a forum non conveniens-type analysis and access to justice considerations into the ‘necessary and proper party’ gateway. In this post, I will try to examine somewhat more in-depth what this decision means for access to justice for victims of corporate human rights abuses.

Access to justice is arguably one of the most pressing issues in the business and human rights debate. According to the UN Guiding Principles on Business and Human Rights, it is at the core of the right to remedy (Principle 26, Commentary).  Insufficient access to justice in host state courts also propels many foreign direct liability cases. As noted by the Supreme Court in Lungowe, getting access to court for claims against subsidiaries of transnational corporations, has been an important – but not the only – reason for bringing claims against parent companies in home state courts [para. 27]. Indeed, in almost every recent business and human rights-related case, claimants have made a point of not being able to pursue their claim where they live, for example because local legal systems are corrupt or dysfunctional, they fear for their safety if they pursue their claims at home, or there is a lack of funding or legal representation.

Access to justice has however been mostly ignored in domestic law- and policy making of home states. It barely features in the National Action Plans adopted pursuant to the UNGPs, and there have been no specific proposals to increase access to justice in home states for victims of corporate human rights violations – even as they are increasingly confronted with foreign direct liability claims. It is also somewhat overlooked in case law. While often argued by claimants, access to justice in English case law prior to Vedanta v. Lungowe had become relegated to the background in favor of a more substantive inquiry into the merits of the anchor case. If there was an arguable anchor claim, courts were generally satisfied that avoiding parallel proceedings was a sufficient argument for holding that England was the appropriate place to litigate the claim under the ‘necessary and proper party’ gateway [paras. 70-71].

In its decision in Vedanta v. Lungowe, the Supreme Court has moved away from lower courts’ emphasis on avoiding parallel proceedings [calling it a “trump card”, para. 84]. It has given some more room to balance the connections of a case to England as a forum to the quality of proceedings in the foreign forum, and the risk of not obtaining ‘substantial justice’ there. On the face of it, it seems positive that the Court allows the case to proceed, and that it accentuates access to justice issues in its decision in Vedanta as a reason for doing so [para. 88 ff]. Some blog posts have commented favorably on the decision for this reason.

I am somewhat more skeptical. First, it is unfortunate that the Supreme Court does not mention the UNGPs in its considerations, or the human rights framework in general. Given that the parties’ submissions had not relied on the international context, the Court was within its right to do so; but it was highlighted in the intervention by the International Commission of Jurists and the CORE coalition, which the Court chose not to engage with. The Court thereby ignores that from the perspective of international human rights law, it is an organ of the state that can help discharge the state’s obligations and responsibilities – including the obligation to prevent denial of justice.

Second, the burden is on the claimants to show that there is a risk that they cannot obtain substantial justice in the alternate forum. Like the lower courts, the Supreme Court notes that this assessment has to be made with restraint on accounts of comity towards the foreign legal system [paras. 96-97]. That requires the claimants to present ‘cogent evidence’ that there is such a risk, although the Court does not elaborate when that evidence may be sufficient. Because avoiding the risk of irreconcilable judgments is no longer a “trump card” in favor of England as the appropriate forum, this introduces an additional hurdle for claimants looking for access to justice.

Third, under the ‘necessary and proper party’ gateway, courts are only required to examine access to justice issues if they have already established that (a) there is an arguable claim against a UK-domiciled defendant, such as a parent company, and (b) that there is an alternate forum that is more closely connected to the case. A court may thus conclude that there is no access to justice for the claimants in a foreign forum, but nevertheless not find jurisdiction over a foreign subsidiary for lack of a sufficiently well-argued claim against an anchor defendant.

Indeed, in AAA v. Unilever Plc and anor, Justice Lang writing for the High Court came to just that conclusion. Having already held that there was no arguable case against the English anchor defendant under the ‘necessary and proper party’ test, Laing J also examined whether the claimants could obtain substantial justice in Kenya, the more appropriate forum. She observed that due to the claimants’ legitimate fear for their safety if they would pursue their claims there, significant corruption issues in the Kenyan judiciary and lack of adequate funding for their case, there was a real risk that they could not obtain substantial justice [AAA v. Unilever, para. 172]. This effectively means that the claimants will very likely face denial of justice, which I would submit is an absurd conclusion for a court to reach.

How then to resolve this? One possibility is to further centralize access to justice as a relevant factor in the assertion of jurisdiction, by adopting forum necessitatis (or forum of necessity)as a ground for jurisdiction. As I have argued elsewhere, forum necessitatis is already common in most continental European jurisdictions and in Canada. A court can exercise necessity jurisdiction over a case if it is either impossible or unreasonable to bring the case in its more natural forum, and there is some connection to the state exercising forum necessitatis. The ‘impossibility and unreasonableness’ criterion could be satisfied with the same evidence that there is a risk of not obtaining substantial justice, whereas the connectivity requirement could be satisfied through the presence of a closely involved parent company domiciled in the state exercising necessity jurisdiction.

Of course it was not up to the Supreme Court to change the Civil Procedure Rules to accommodate cases like Vedanta v. Lungowe, or any other foreign direct liability case. It is however up to the United Kingdom as a state party to several core human rights treaties, to consider whether it can provide a residual forum, or leave foreign victims of harmful acts by corporations to face denial of justice.