Access to Judicial Remedies for Victims of Corporate Human Rights Violations: UK Consultation

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This morning I participated to a consultation on access to judicial remedies in the UK hosted by the British Institute of International and Comparative Law. This is part of a wider project on access to judicial remedies in the UK, the United States and different jurisdictions in the European Union, with Olivier De Schutter, Andie Lambe, Robert McCorquodale and Gwynne Skinner as the lead experts. The project team also includes Marilyn Croser from CORE, Katie Shay from the International Corporate Accountability Roundtable, and Filip Gregor from the European Coalition for Corporate Justice.

The project aims to map obstacles to litigation and access to remedies and, more importantly, to propose practical ways to overcome these obstacles.

The usual, yet critical, issues of legal aid for foreign victims, access to evidence, and de facto inequality of arms between often disimpowered communities and powerful global corporations, were discussed. Other questions that I find are a lot less touched upon were also discussed, such as the consequences of EC Regulation No 864/2007 (‘Rome II’). The Regulation provides that in tort claims judges in European Union member states must apply the law of the state where the damage occurred. While the principle is now well established, I had not fully realised the practical consequences of this. It means that the onus is on the claimant to present the judge with a clear picture of what the law is in that particular country. The identification of the relevant law and its niceties can be long and costly. A related problem, also stemming from ‘Rome II’, is that the victims, if successful before British courts, can only be compensated according to the host state’s rules on the matter, not British rules, which may mean a lot less money.

We also had a fascinating discussion on ‘remedies besides money’. The nature of tort claims brought in the UK to address human rights violations calls for purely monetary compensation to selected, identifiable, individuals when remedies for the benefit of the wider community may actually be fairer in the long run and have a better chance of ensuring non repetition.

The project is timely and has the potential to move things forward in this complex area of law where many questions remain unsolved. I look forward to reading the report that will come out of it.