Zambian Villagers Win the Right to Sue a Mining Company in the United Kingdom
By Nathalie Bernasconi-Osterwalder, October 27, 2017
In an interesting development, the United Kingdom Court of Appeal recently upheld the decision of a lower court that British courts have jurisdiction to hear a case in which a United Kingdom-based mining company’s activities caused harm abroad (in Zambia).
In this case, 1,826 Zambian villagers sued a United Kingdom-domiciled company that owns a majority share in a copper mine in Zambia. The villagers claim that chemicals from the mine have polluted rivers, streams and aquifers, causing illness, injury, crop failures and loss of income.
“The frequency and severity of spills are higher and more consistent. Before we could not smell [the pollution] but now we can. The ground is contaminated, our crop yield has dropped, the maize crop is about half what it was,” Leo Moulenga, a villager from Shimulala, told the Guardian two years ago.
It is frequently a problem for victims in developing countries to get redress for damages caused by multinational corporations. Often, the only option for victims is to bring the case to a local court. Unfortunately, the local entity of the transnational corporation may no longer exist or have limited assets in-country. It is therefore important to have access to courts in the "home" country of the parent company.
This problem is also at the heart of discussions this week in Geneva at a United Nations meeting on transnational corporations and human rights. In this forum, countries are deliberating on a binding international instrument that includes rules on access to justice and effective remedy. An important part of this discussion focuses on the role of courts in the home state of the parent company. Hopefully, the discussions at the UN will result in an outcome that will ensure courts cannot stay a civil tort case brought by a victim domiciled abroad against a parent company based on so-called forum non conveniens grounds. This means that a court should not be able to refuse a case just because it considers that there is another forum in which the case could be tried more suitably.
In addition to the important role the UN can play in moving these issues forward, investment treaties and chapters should also include provisions to improve access to justice for those harmed by foreign investment. Some recent investment treaty models (in Africa, for example) commit state parties to ensuring that access to courts in the home state of the foreign investor is possible. Such a reference in the investment treaty helps ensure that transnational companies are held accountable for their actions in the host state and that they cannot escape liability simply because they are transnational in character. These types of clauses are important and can ultimately result in better behaviour in the companies in the country where they operate.
IISD has been developing innovative approaches to investment law and policy for over 15 years. The role of home state courts for transnational investments in civil cases was first incorporated in the 2005 IISD Model Investment Agreement for Sustainable Development.