Editor's Note: Catherine Dunmore is an
experienced international lawyer who practised international arbitration for
multinational law firms in London and Paris. She recently received her LL.M.
from the University of Toronto and her main fields of interest include international
criminal law and human rights. Since October 2017, she is part of the team of
the Doing Business Right project at
the Asser Institute.
Introduction
This report compiles all relevant
news, events and materials on Doing Business Right based on the daily coverage
provided on our twitter feed @DoinBizRight. You are invited to complete this
survey via the comments section below, feel free to add links to important
cases, documents and articles we might have overlooked.
The Headlines
Okpabi
v Royal Dutch Shell: Court of Appeal finds Shell not liable for Nigerian oil
spills
On 14 February 2018, the Court of
Appeal in London handed down its Approved Judgment in Okpabi and others v
Royal Dutch Shell Plc and another [2018] EWCA Civ 191. The claimants are 40,000 Nigerian
farmers and fisherman from the Ogale and Bille communities in the Niger Delta
who allege they have suffered from decades of pollution from pipelines belonging
to Shell Nigeria, a subsidiary of the British-Dutch
multinational oil and gas company Shell. Indeed, in 2011 the United Nations
Environmental Programme published an Environmental Assessment of Ogoniland which reported serious contamination
of agricultural land and waterways in the community as well as its groundwater
at rates 1,000 times higher than permitted under Nigerian law, exposing Ogale’s
inhabitants to serious health risks. Meanwhile the Bille community suffered the
largest loss of mangrove habitat in the history of oil spills at 13,200
hectares. In its split decision, the Court of Appeal upheld the High Court
ruling that it lacks jurisdiction as London headquartered parent company Shell
could not be liable for any oil pollution in the Niger
Delta caused by its wholly autonomous subsidiary. The villagers now plan to seek permission to take the case to the Supreme
Court, with King Okpabi of the Ogale Community stating “We have lost our
environment, our farmland and our dignity because of Shell’s operations in our
community. The English Courts are our only hope because we cannot get justice
in Nigeria. So let this be a landmark case, we will go all the way to the
Supreme Court”.
Philippines
Commission on Human Rights holding overseas hearings for oil majors
The Republic of the Philippines Commission on Human
Rights
is set to confront oil majors over their climate change impact through hearings
in Manila, New York and London. The hearings are in response to a petition
lodged in 2015 which seeks to hold forty-seven companies accountable for Philippine
communities suffering from extreme weather. Human Rights Commissioner Roberto
Cadiz explained that holding hearings overseas will
make the process inclusive, affording all carbon companies the best chance to
confront the impact of their businesses. To date, half of the companies, whose
products generated around a fifth of historic greenhouse gas emissions, have not responded to the Commission. Those which have
responded, questioned the Commission’s jurisdiction or
argued that it was for governments and not private companies to tackle climate
change. Several international law experts have also filed amicus curiae briefs in support of the petition which
back the Commission’s mandate to investigate private companies over harm
experienced by Filipinos. The hearings are due to commence in Manila in March
2018, with the overseas sessions following later in the year. The Commission
cannot directly impose penalties on any of the respondents; however, it could
recommend ways that the companies might alleviate their future operations’
human rights impact.
Tomasella
v Nestlé: Consumers sue Nestlé for child labour chocolate
On 12 February 2018, consumer Danell
Tomasella filed a Class Action Complaint in Case No. 1:18-cv-10269 in the
Massachusetts federal court. The lawsuit against Swiss food and beverage
conglomerate Nestlé USA Inc. alleges that the company regularly
imports cocoa beans from suppliers in the Ivory Coast and engages in deceptive
marketing by hiding that this chocolate supply chain utilises child and slave
labour. The plaintiffs claim that in violation of Massachusetts Consumer Protection Law,
Nestlé does not disclose its Ivory Coast suppliers’ reliance on the worst forms
of child labour which is of material interest to American consumers. They state
that “Nestlé has not required its suppliers to remedy this human tragedy” and
that it instead continues to be unjustly enriched by the profits from chocolate
sales. The allegations highlight that much of the world’s chocolate is “quite
literally brought to us by the backbreaking labor of children, in many cases
under conditions of slavery”. Nestlé has responded that such consumer class actions
“are not the way to solve such a serious and complex issue as forced child
labor”, rather “class action lawyers are targeting the very organizations
trying to fight forced labor”. More...