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Corporate Legal Accountability Quarterly Bulletin - Issue 22, December 2016


Welcome to our Corporate Legal Accountability Quarterly Bulletin -- highlighting a specific topic each quarter, as well as key developments in corporate legal accountability.  The Corporate Legal Accountability hub on our website provides objective, concise information about lawsuits against companies in which human rights abuses are alleged.
 
This bulletin and previous issues are available in English, ChineseFrench, GermanRussian and Spanish.

Quarterly Highlight: Corporate legal accountability & haze in Indonesia  


Effective legal remedies must be at the core of both human rights and responsible business.  Non-judicial mechanisms have an important role to play in some contexts but are insufficient for the most egregious abuses such as killings and rape, and are not available at all for some harms. 

Legal accountability is one of the best ways to achieve justice for victims of corporate abuse.  Courts can set penalties commensurate with the damage done and prevent wrongdoers from inflicting future harm, backed by the power of the state.  They can set legal standards requiring duties of care that are based on – and appropriate to – the power of those responsible for environmental and social impacts.  Because of these and other unique features of judicial remedies – as well as to highlight limitations in these remedies – Business & Human Rights Resource Centre has devoted special attention to legal claims against companies for human rights abuse in our Corporate Legal Accountability project for nearly a decade.

We recently conducted a mission in Indonesia where we organised a workshop to discuss remedy for transboundary haze and air pollution due to fires set to clear forest for palm oil and other agribusiness operations.  Legal, human rights, and environmental advocates working on this issue told us about their efforts to hold companies legally accountable for worsening transboundary haze impacts and to empower human rights lawyers to fully and effectively advocate for victims. 

Communities in Indonesia are very concerned over haze that has repeatedly blanketed parts of the country and also affected its neighbours Singapore and Malaysia.  A recent study by Harvard and Columbia universities estimated that over 100,000 people in Southeast Asia may have died prematurely last year because of the haze.  Some of these communities are seeking legal remedies for the harms they have suffered – and to prevent further damage.  The NGO WALHI is planning to sue five companies allegedly responsible for the haze in South Sumatra for its impact on health and livelihoods.  They believe that the transboundary nature of the haze strengthens their case as other affected countries are willing to take action to tackle the issue that is also affecting their population.  Indeed, Singapore has enacted the Transboundary Haze Pollution Act 2014 that allows authorities to fine and sue companies involved in the illegal forest burning causing pollution in Singapore.  Last year, the country’s National Environment Agency issued Preventive Measures Notices to six Indonesian companies suspected of starting fires.

In September 2015, the Indonesian Supreme Court set a precedent by ordering palm oil company PT Kallista Allam to pay $26 million in fines and reparations for its cut-and-burn practices in Sumatra’s Tripa peat swamp region.  In August this year another company, PT National Sago Prima (part of Sampoerna Agro), was fined $81.62 million, the largest fine imposed on a company linked to forest fires in Indonesia.  In this case, the court used the strict liability concept: it held the company liable for fires that occurred on its concession regardless of evidence, or lack of it, that the fires were caused by the company or by its negligence.  Strict liability reduces the burden on plaintiffs and prosecutors to demonstrate that the company actually caused the harm, or failed to meet a duty of care, and so improves the chances of obtaining remedy from companies for environmental harm. 

This is particularly important in the context of the Indonesian haze crisis.  Lawyers and advocates tell us that strict evidentiary requirements in court make legal claims on these issues difficult or impossible to win.  For instance, the lack of access to company information, including maps that show plantation boundaries, makes it hard to build a case even when there is evidence of burning in violation of Indonesian law.  Although the judgments mentioned above are a step in the right direction for communities fighting against companies involved in the haze, lawyers deplore the lack of enforcement of judicial decisions often due to corruption in the judicial system and the power of companies.  In many cases, members of the judiciary or local authorities have a stake in a particular company and have a conflict of interest when involved in adjudicating claims or enforcing a court order.

Early successes in actions taken in Indonesia by advocates and the government show the value of going through courts to seek justice for victims of the haze.  However, reforms should focus on enacting laws requiring greater transparency and disclosure by companies, thereby helping victims in their quest for justice, and taking steps to ensure enforcement of judicial decisions.  The International Criminal Court has announced that it will start focusing on environmental crimes; could this be another avenue through which to hold companies accountable for the adverse impact of haze on millions across Southeast Asia?
Legal developments

New case profiles

Lawsuit against Betagro & Thammakaset lawsuit (re labour exploitation in Thailand): On 2 September 2016, 14 Myanmar migrants filed a lawsuit at a labour court in Thailand, against Betagro, a Thai food corporation, and Thammakaset, a poultry farming company that supplies Betagro.  The lawsuit seeks compensation and civil damages for alleged labour abuses, such as forced labour, restrictions on movement, and unlawful salary reductions, that occurred at Thammakaset farm. 

Lawsuits against Drummond (re complicity in killings in Colombia, Melo): On 26 February 2013, family members of Colombians killed by paramilitaries filed a complaint against Drummond in the US alleging complicity with the Autodefensas Unidas de Colombia (AUC) in killings of civilians.   Drummond denied the allegations and argued that US courts lack jurisdiction.  The district court dismissed the claims based on decisions in other similar lawsuits against Drummond; but on 27 September 2016, the court of appeals ruled that the plaintiffs could amend and refile their claim under the Alien Tort Statute to show that the claims have a sufficiently close connection to the United States.

Lawsuit against Lafarge & Suez (re air pollution in Egypt): On 3 October 2016, the Habi Center for Environmental Rights filed a lawsuit at the Egyptian Administrative Court challenging the use of coal by the cement companies Lafarge Egypt and Suez Cement Group.  The lawsuit claims that the companies have failed to disclose required environmental impact assessment studies and that the companies are violating the Constitution's rights to health, healthy environment, participation and access to information, in light of the plants' proximity to residential neighbourhoods.  The lawsuit requests the government to suspend the companies’ licenses to use coal.

Lawsuit against seafood exporters (re human trafficking in Thailand): In June 2016, seven Cambodian former employees at a Thai seafood factory that produces seafood for export to the USA filed a civil lawsuit in a California federal court against two US and two Thai companies.  The lawsuit alleges human trafficking, forced labour, and other serious abuses.  In November, the court denied the companies' motion to dismiss and ruled that the lawsuit can proceed. 

Lawsuit against Titan (re air pollution in Egypt):  On 3 January 2016, residents of the Wadi al-Qamar area filed a lawsuit at the Egyptian Administrative Court challenging the use of coal by Titan Cement Egypt/Alexandria Portland Cement Company.  Some of its industrial facilities are adjacent to residential areas, with wind blowing factory emissions to homes.  The lawsuit requests the court to annul the executive decisions that allowed for the use of coal in residential areas, and for Titan to use coal to produce cement.  The lawsuit claims that the decisions violate provisions of the Egyptian Constitution, the Environment Law and international agreements. 

 

Updates to existing case profiles

Abu Ghraib lawsuits against CACI, Titan (now L-3): In October, the US Court of Appeals for the Fourth Circuit reinstated the lawsuit against CACI, ruling that the US “political question” doctrine does not prevent courts from hearing cases concerning illegal acts committed by government contractors.

Gold miner silicosis litigation (re So. Africa): In September, the South African Supreme Court of Appeal granted the mining companies leave to appeal against the lower court decision allowing 60 mineworkers to bring a class action lawsuit.

Lawsuit against Chiquita (re complicity in killings in Colombia): In November, a US district judge allowed a class action lawsuit against Chiquita for alleged complicity in killings with paramilitary groups to move forward in US courts, ruling that litigation in Colombia would pose a risk to the plaintiffs.

Lawsuit against gun industry (re Sandy Hook shooting in USA): In October, the Connecticut superior court dismissed the case based on a federal law that protects gun manufacturers from liability for harm caused solely by criminal misuse of a weapon.  In November, the Connecticut supreme court agreed to hear the families' appeal.

Lawsuits against BHP Billiton & Vale lawsuit (re dam collapse in Brazil): On 20 October, Brazilian federal prosecutors filed homicide charges against 21 people, including executives of BHP Billiton, Vale and Samarco, for the 19 deaths resulting from the dam collapse.

Lawsuit against Dyncorp (re chemical spraying in Colombia & Ecuador): In November, the US district court heard the case of 19 Ecuadorean "test" plaintiffs.

Lawsuit against KiK (re textile factory in Pakistan): In September, the German court accepted jurisdiction over the claim and granted legal aid to the plaintiffs.

Lawsuit against Nevsun (re forced labour in Bisha mine in Eritrea): In October, the Supreme Court of British Colombia rejected Nevsun’s motion to dismiss the lawsuit and ruled that the case should proceed in British Colombia, due to doubts that the plaintiffs would get a fair trial in Eritrea.  Nevsun is considering an appeal

Lawsuit against RWE (re impact of climate change in Peru): On 24 November, hearings began in a district court in Germany. 

Lawsuit against Tahoe Resources (re Guatemala): On 1 November, plaintiffs appealed the British Columbia supreme court ruling that they must seek justice in Guatemala, arguing that there are barriers to access to justice and that the court had set too high a bar for plaintiffs to show they would not get a fair trial. 

Lawsuits against Texaco/Chevron (re oil pollution in Ecuador): In September, hearings began in Canada over plaintiffs' attempts to enforce the USD 9 billion Ecudorian verdict against Chevron.

Lawsuits against Trafigura (re disposal of toxic waste in Côte d’Ivoire): In November, a Dutch court rejected a claim by a foundation representing over 100,000 Ivorians seeking compensation for damage allegedly caused by the disposal of toxic waste, finding that the foundation did not establish that the claim was in the best interests of the affected Ivorians.
New translations

In Arabic

[Corporate Legal Accountability Annual Briefing. In the courtroom & beyond: New strategies to overcome inequality and improve access to justice]
[Lafarge & Suez Cement lawsuit (re air pollution, Egypt)]

(قضية تيتان للأسمنت (تلوث الهواء، مصر
Lawsuit against Titan (re air pollution in Egypt)] 

مبادئ مواجهة جرائم الشركات: تطوير التحقيقات والمحاكمات المتعلقة بقضايا حقوق الإنسان
[The Corporate Crimes Principles, Amnesty International & International Corporate Accountability Roundtable (ICAR)]]

In Chinese

法治和地权
[Rule of law and land rights, Olga Hancock & Richard Dyton, Simmons & Simmons LLP]


律师从业应尊重人权的六大理由
[Six reasons why lawyers should practice law with respect for human rights, John F. Sherman II, Shift]


In Spanish

Demanda contra Occidental por actividades en Colombia
[Occidental lawsuit (re Colombia)]
New blog posts
Will European companies be held accountable for their involvement in the Syrian war? Miriam Saage-Maaß & Patrick Kroker, European Center for Constitutional and Human Rights, 6 Dec 2016

The removal of barriers to access to remedy for corporate related human rights abuses in the European Union, Katerina Yiannibas, Human Rights in Business, 10 Oct 2016

If you are interested in contributing to a guest post on corporate legal accountability, please contact us. 
Other news

Recent events

10th Annual European Pro Bono Forum, PILnet (16 - 18 November, Amsterdam)

Rights of Victims, Challenges for Corporations, Potentials for New Models of Criminal Justice, Victims & Corporations (13 October, Milan)


Access to Justice for Victims of Corporate-Related Human Rights Violations. Extraterritorial Jurisdiction in Civil Litigation, Human Rights International Corner & Scuola Superiore della Magistratura (3 November, Milan)
 

Reports, articles & guides 

The Corporate Crimes Principles: Advancing Investigations and Prosecutions in Human Rights Cases, Amnesty International & International Corporate Accountability Roundtable (ICAR), 6 Oct 2016

New law would create Human Rights Ombudsperson to investigate violations associated with Canadian mining, oil and gas operations overseas, Canadian Network on Corporate Accountability, 2 Nov 2016

Reference Annex to the IBA Practical Guide on Business and Human Rights for Business Lawyers, International Bar Association, Nov 2016
  • The Reference Annex is detailed supplement to the Practical Guide, aimed at improving business lawyers’ understanding of the UN Guiding Principles on Business and Human Rights 
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