Note on… the access to justice at the courts of European home states

November 23, 2010

By Robert Grabosch, Attorney at law
A recent decision of a U.S. appellate court has quenched much hope for the availability of legal redress at U.S. courts for corporate misconduct in the Global South. As this post explains, the jurisdiction of civil courts in the European Union over European corporations’ conduct in the Global South is significantly less problematic than the jurisdiction of U.S. courts.

An appellate court of the United States recently dismissed claims for damages brought by Nigerian residents against the Dutch oil and gas company Shell, finding that it has no subject matter jurisdiction to hear cases of foreign victims of torts committed outside of the U.S. by corporations (Kiobel v. Royal Dutch Petroleum, as covered in this Note).

By now, and since 1996, about 60 groups of non-US citizens allegedly injured by corporate conduct outside of the United States have claimed damages by invoking the jurisdiction of United States courts under the Alien Tort Claims Act. And yet, not one final judgment was issued in favour of plaintiffs. As The Economist recently suggested (article of 7 October 2010), it may be time for victims of human rights violations by European corporations to consider addressing the courts of the defendant company’s European home state.

Indeed, the jurisdiction of European courts is hardly problematic if the defendant company is “domiciled” in the European Union. Articles 2(1) and 60(1) of the European Council (EC) Regulation 44/2001 (“Regulation Brussels I”) on jurisdiction in civil matters provide for the jurisdiction of the civil courts of the EU member state in which the defendant corporation has its statutory seat, central administration, or principal place of business, regardless of the plaintiff’s citizenship or domicile.

As the Court of Justice of the European Union (ECJ) ruled in Owusu v. Jackson (judgment of 1 March 2005, C-281/02), the so-called ‘home state’ jurisdiction is activated even if the case has no other connection to the European Union besides the defendant’s domicile in a member state. Unlike in the U.S., a particular subject matter linking the case to the U.S. or to a tort in violation of international law needs not be established.

Not only do the courts of the European Union member states have civil jurisdiction over “their” corporations, they also must exercise it. As the ECJ ruled in the before mentioned case, dismissing a lawsuit to more suitable courts of another state―as often practiced by UK and French courts under the doctrines of forum non conveniens and juge naturel―violates the jurisdictional provisions of the Brussels I Regulation.

Prof. Jan Wouters and Lee Chanet have come to the conclusion that the European rules of jurisdiction are significantly more welcoming of lawsuits brought by foreigners against corporations than the U.S. rules are. It may be astounding that there are hardly any prominent cases of international human rights litigation against corporations before European courts (Trafigura and another lawsuit of four Nigerian farmers against Shell being notable exceptions). However, even though civil society organisations are currently decrying a lack of “access to justice” for foreign victims of corporate human rights violations, the jurisdiction of European courts can hardly be the problem.

Certainly, victims of corporate human rights violations in the global South face several difficulties when seeking legal redress in the European corporation’s home state. So far, the prevailing focus on litigation in the United States may have pre-empted their attempts to face these difficulties.

 

Robert is Rechtsanwalt (Attorney at law) and Ph.D. student in Berlin, Germany, and specialises on the responsibility of transnational corporations for human rights violations in the Global South. He studied law at the Humboldt University of Berlin and the Catholic University of Leuven, Belgium, and obtained an LL.M. (International Law) at the University of Cape Town, South Africa, in 2009.

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One Response to “Note on… the access to justice at the courts of European home states”


  1. […] as “bad law” a decision which relied on the forum non conveniens doctrine (See also Note on… the access to justice at the courts of European home states edit 16/12/2010), therefore confirming that national courts in an EU member state may not dismiss […]


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