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.

Background

At the United Nations Forum on Business and Human Rights from 27-29 November 2017 in Geneva, discussions focused on the central theme of Realizing Access to Effective Remedy. With an increasing focus on this third pillar of the United Nations Guiding Principles on Business and Human Rights, a working group of international law, human rights and conflict management specialists (Claes Cronstedt, Jan Eijsbouts, Adrienne Margolis, Steven Ratner, Martijn Scheltema and Robert C. Thompson) has spent several years exploring the use of arbitration to resolve business and human rights disputes. This culminated in the publication on 13 February 2017 of a proposal for International Business and Human Rights Arbitration. On 17 August 2017, a follow-up Questions and Answers document was published by the working group to address the principal questions raised about the proposal during the three-year consultation with stakeholders. Now, a drafting team is being assembled, chaired by Bruno Simma, to prepare a set of rules designed specifically for international business and human rights arbitration (the Hague International Business and Human Rights Arbitration Rules) in consultation with a wide range of business and human rights stakeholders. Once drafted, the rules will be offered to the Permanent Court of Arbitration and other international arbitration institutions and could be used in arbitration proceedings managed by parties on an ad hoc basis.

Introduction

Part 1 of this three-part blog series gave an overview introduction to the proposal for international business and human rights arbitration. This Part 2 focuses on (1) the potential advantages of using international arbitration to resolve such disputes, as well as (2) the substantial challenges the proposal will face in practice. Part 3 will then provide a case study of the Accord on Fire and Building Safety in Bangladesh’s binding arbitration process.

1.     The potential advantages of international business and human rights arbitration

The working group’s proposal to use international arbitration for the resolution of business and human rights disputes offers many potential advantages. As alluded to in Part 1 of this blog series, international arbitration can undoubtedly provide a more neutral forum, whereas domestic or international courts may face political pressure or judicial corruption. Arbitration would allow both parties to a dispute to select their own judges, who could, in theory, be impartial experts in business and human rights law and practice and accordingly more sensitive to the often complex issues at stake. This may particularly be welcomed in politically or emotionally charged human rights disputes. Additionally, international arbitration would allow for greater procedural flexibility and efficiency, as compared particularly to domestic court systems. Proceedings could be more tailor-made to fit both parties’ locations, means and resources, and resolved more swiftly than might otherwise be the case in business and human rights disputes. Other potential advantages include (a) the universal recognition of the arbitral award, and (b) an increase in supply chain responsibility.

a.     Universal recognition of the arbitral award

Final awards rendered in international business and human rights law arbitrations could include monetary damages, injunctive relief and close monitoring of future compliance. As the working group’s Questions and Answers document confirms, such awards could have the advantage of being enforceable under the 1958 Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention). The New York Convention provides for the recognition and enforcement of foreign arbitral awards within its 157 State parties. The courts of each member nation must recognise foreign arbitral awards as binding and enforce them, unless the party against whom the award is being invoked can prove that there is reason to refuse enforcement. The limited grounds for refusing this universal recognition are outlined in Article 5 of the New York Convention, notably that:

• The parties to the agreement to arbitrate were under some incapacity or the agreement to arbitrate is not valid under the governing law or the law of the country where the award was made.
• The party against whom the award is invoked was not given proper notice of the appointment of the arbitrator or of the arbitration proceedings or was otherwise unable to present its case.
• The award contains decisions on matters beyond the scope or terms of the submission to arbitration.
• The arbitral authority’s composition or arbitral procedure was not in accordance with the parties’ agreement or, failing such agreement, the law of the country where the arbitration took place.
• The award is not yet binding, or has been set aside or suspended by a competent authority of the country in which, or under the law of which, the award was made.
• The dispute’s subject matter is not capable of settlement by arbitration under the law of the country in which enforcement is sought.
• The recognition or enforcement of the award would be contrary to the public policy of the country in which enforcement is sought.

Accordingly, parties have an established means by which to achieve the recognition and enforcement of final awards handed down by tribunals in business and human rights arbitrations.

Although this could provide a clear route by which parties can receive any monetary damages, it may however be found lacking when it comes to potential long term monitoring and supervision requirements of any business and human rights arbitration award. Business and human rights arbitration tribunals might well require in the award that a party’s actions to remedy a particular human rights breach are supervised, and that its future compliance with human rights obligations is closely monitored. In this vein, additional mechanisms of enforcement and monitoring may need to be developed, perhaps along the lines of the Permanent Court of Arbitration’s Optional Rules for Conciliation of Disputes Relating to Natural Resources and/or the Environment.

b.    Increase in supply chain responsibility

As the working group explains, international business and human rights arbitration has the potential to “reinforce global governance” and might encourage and assist businesses to better manage their supply chains in order to avoid rights abuses. Businesses are increasingly altering their supply chain contracts to observe human rights norms, particularly in line with the United Nations Guiding Principles on Business and Human Rights. In this manner, international arbitration for the resolution of any human rights disputes could be inserted into the contractual terms and conditions between companies and their immediate business partners.

Precedent contracts between parent companies, subsidiaries, suppliers and contractors could simply be amended to include business and human rights commitments along with a business and human rights arbitration clause. They might include clauses requiring business partners to observe specific norms or to refrain from particular practices which might lead to human rights abuses. They could also include clauses granting potential victims, workers or members of affected communities the right to enforce the human rights clauses. Parent companies might use perpetual clauses to ensure effective supply chain responsibility, meaning that parties throughout their entire chain of subsidiaries, suppliers, contractors and subcontractors are required to insert the same provisions into their own contracts. As the working group’s Questions and Answers document explains, any defaulting party could then be subject to a binding business and human rights arbitration process brought by any party empowered under the contract to invoke proceedings.

These steps would create a chain of contracts that protect victims from human rights abuses and provide businesses with an avenue to reduce or eliminate the risk of abuse for which they may share a degree of responsibility (see previous blog: Lungowe v Vedanta and the loi relative au devoir de vigilance: Reassessing parent company liability for human rights violations). The availability of international arbitration could allow businesses to better manage their supply chains and facilitate responsible conflict management in the event of any human rights abuses.

2.     The challenges facing international business and human rights arbitration

The working group’s proposal to use international arbitration for the resolution of business and human rights disputes also raises many potential challenges. Careful consideration must be given to the existing limitations of international arbitration. For instance, compared to domestic court systems, arbitration offers limited options for the summary dismissal of spurious claims. The recourse mechanisms available to defendant corporations must be reassessed when developing business and human rights arbitration to enable the early dismissal of unfounded allegations. Another key area for debate, is which norms or laws would be applied by the arbitral tribunal in business and human rights disputes, and indeed whether they would recognise corporate liability for human rights violations. As evidenced through Kiobel v Royal Dutch Petroleum, Jesner v Arab Bank and Lungowe v Vedanta, the question of corporate liability for human rights violations under international and domestic law remains open in many jurisdictions. As for the possibility of incorporating voluntary guidelines such as the United Nations Guiding Principles on Business and Human Rights, attention must be paid to the potential implications of making soft law a binding and contractually enforceable obligation. A successful business and human rights arbitration mechanism must also work to overcome the existing criticisms of international arbitration, often focusing on cost and efficiency. Moreover, in contemplating whether party appointed arbitrators or a permanent standing arbitral tribunal is more appropriate, the working group must consider issues such as the role of arbitrator bias and experience, as well as the feasibility of having multiple decentralised offices if a Court of Arbitration for Sport model were to be followed. As briefly mentioned in Part 1 of this blog series, other potential challenges include (a) an inequality of arms between parties, and (b) the transparency of arbitration proceedings.

a.     Inequality of arms between parties

As the working group’s Questions and Answers document explains, often victims of businesses’ human rights abuses are poor and accordingly cannot compete on equal terms in disputes against well-resourced business opponents. Unfortunately, this inequality of arms issue might be compounded through the use of international arbitration, as its high party and common costs, alongside procedural complexity, could place victims at a significant disadvantage.

International arbitration has been described as a “rich man’s game, best left to large companies, insurers and organs of sovereign states”. Both parties to international arbitral proceedings generally incur:

• Administrative charges by the arbitral tribunal.
• Fees and expenses of the tribunal, external counsel, experts and specialist services, such as transcribers and interpreters.
• Hiring fees for hearing room(s) and facilities.
• Expenses of testifying witnesses.
• Significant costs for legal representation.

Accordingly, in promoting the international arbitration of business and human rights disputes, efforts must be made to deal with the inequality of arms that victims of rights violations may face when attempting to assert their rights, and how they might afford the costs associated with arbitration proceedings.

Indeed, the working group’s proposal explicitly recognises that victims may need assistance to help defray their arbitration costs and legal fees. Proposals for cost reduction in future international business and human rights arbitrations include:

• Facilitating representation of victims by human rights non-governmental organisations, labour unions and pro bono lawyers.
• Supporting arbitration proceedings in the same way as domestic litigation, through legal aid or the provision of third-party funding.
• The establishment of dedicated grants or the advance of funds (to be repaid from the proceeds of final settlements or arbitral awards) for the arbitration of business and human rights disputes. For instance:
• Private corporations, individuals, foundations and States could contribute to the establishment of a dedicated private trust fund. This would promote better access to justice for victims whilst also contributing to businesses’ corporate social responsibility objectives.
• A dedicated fund could be established by arbitral institutions which adopt the Hague International Business and Human Rights Arbitration Rules. One funding model would be the Financial Assistance Fund established by the Permanent Court of Arbitration, which aims at helping developing countries meet part of the costs involved in international arbitration.
• Centralised funds could be created, for instance within the European Union, by which access to common markets is contingent upon fixed contributions to support victims of businesses’ human rights violations.

In terms of costs and legal expenses allocation, a number of proposals have been put forward to ensure a greater equality of arms. These include:

• Contractual requirements in business and human rights arbitration clauses mandating that a losing company pay the arbitration costs and legal fees of winning victims.
• The granting of additional powers to international business and human rights arbitrators, allowing them to allocate costs and legal fees to winning victims or with consideration of the degree of fault demonstrated.
• Examining the use of fee-shifting arrangements. Traditionally this could mean that the loser pays the winner’s legal fees and costs, which may reduce initial hurdles for victims seeking to litigate but also increases their potential risk and exposure post-judgment. Another idea would be implementing reverse fee shifting, whereby successful victims are awarded their legal fees and costs without winning businesses being afforded the same luxury. The concept has previously been implemented in environmental suits bought by citizens in the United States to help overcome often prohibitive litigation costs.

Given the widespread interest in access to justice for business and human rights victims, there is certainly the potential for means of reducing and reallocating the costs involved in international arbitration proceedings. However, more thought must be given by the working group, the drafters of new arbitration rules and the business and human rights community as a whole to overcome the inequality of arms between well-resourced business corporations and their potential victims.

b.    Transparency of arbitration proceedings

One key factor behind the success of international commercial arbitration is confidentiality. The potential privacy of arbitral proceedings is a distinct motivator for business parties to resort to this means of dispute resolution over more public domestic litigation proceedings. However, when considering the arbitration of business and human rights disputes, the expedient element of arbitral confidentiality is challenged by an inconsistent concern for ensuring transparency in human rights cases. When adjudicating on disputes involving human rights violations of international concern, the public interest lies in having open, transparent proceedings. Additionally, as Justice Scalia recognised in AT&T Mobility LLC v Concepcion, 131 S. Ct. 1740 (2011), confidentiality “becomes more difficult” with class action arbitrations involving absent parties and potentially higher stakes. Accordingly, any rules for arbitrating business and human rights disputes must rethink standard arbitration provisions dictating party privacy, and take account of a need for greater transparency. Indeed, the working group’s proposal identifies as an issue for drafters of new arbitration rules, how “transparent the proceedings and awards should be and how to accommodate any confidentiality concerns that either side might have”.

The working group’s Questions and Answers document identifies greater transparency as a prerequisite for business and human rights arbitration, including the possibility of open proceedings for disputes as well as the potential for publication of human rights arbitral awards. When reassessing arbitral confidentiality, it is suggested that drafters of new arbitration rules will turn to the United Nations Commission on International Trade Law (UNCITRAL) Arbitration Rules and the UNCITRAL Rules on Transparency in Treaty-based Investor-State Arbitration. These rules recognise “the need for provisions on transparency in the settlement of such treaty-based investor-State disputes to take account of the public interest involved in such arbitrations”, in a similar vein to the public interest in human rights litigation. They also explain that “that rules on transparency in treaty-based investor-State arbitration would contribute significantly to the establishment of a harmonized legal framework for a fair and efficient settlement of international investment disputes, increase transparency and accountability and promote good governance”. Such harmonisation in a legal framework for business and human rights arbitration would similarly augment accountability and promote good governance in the resolution of disputes.

The UNCITRAL Rules increase the public transparency of investor-state arbitration proceedings, notably authorising arbitrators to protect confidential business information and permitting the submission of amicus curiae briefs by third parties. They also require that repositories make all documents, including exhibits and expert reports, available in a timely manner, in the form and language in which they are received. Future rules governing business and human rights disputes might incorporate these principles, as well as considering public entry to, and online streaming of, arbitration hearings and the publication of pleadings and arbitral awards. This will necessitate consultations with international arbitration institutions, which do not routinely create public venues for observation of their proceedings and often decline to publically state the number and kinds of claims with which they deal. It will also be critical that arbitrators are fully informed of the legal and policy issues surrounding confidentiality in business and human rights cases, in order to appropriately resolve disputes arising between parties about privacy provisions.

As Judith Resnik has highlighted, publicity in courts can discipline businesses and governments by making visible how they treat judicial procedures and the claimants against them. Only through such “public processes, one learns whether individuals of all kinds [...] are understood to be persons equally entitled to the forms of procedure offered others to mark their dignity and to accord them respect and fairness”. Public access to the resolution of business and human rights disputes is paramount, and great attention must be paid by drafters to balancing the protection of sensitive business information with the need for transparent arbitral proceedings.

Conclusions

The working group’s proposal for international business and human rights arbitration is not intended to replace any existing means of redress. Its desire is to offer a potentially more effective alternative to current means of dispute resolution, rather than remove access to any existing remedies. Providing parties with a greater range of options to resolve business and human rights disputes will undoubtedly improve their ability to select a method most appropriate to their cause. The availability of international business and human rights arbitration would bring with it many potential advantages, including the universal recognition of arbitral awards, an increase in supply chain responsibility and responsible conflict management. However, the concept still has some way to go before it could succeed in practice. International arbitration proceedings must be heavily adapted, accounting for, amongst other factors, a likely inequality of arms between parties and the need for transparency in human rights proceedings, whilst the existing limitations of international arbitration must be reconsidered. Commentators from business, human rights and arbitration communities have reacted to the proposal with questions and concerns, and the working group, drafters of new arbitration rules and the business and human rights community as a whole face substantial challenges moving from concept to reality. Part 3 of this blog series will further discuss the arbitration of business and human rights disputes through a case study of the Accord on Fire and Building Safety in Bangladesh’s binding arbitration process.

Editor’s note: Maisie Biggs graduated with a MSc in Global Crime, Justice and Security from the University of Edinburgh and holds a LLB from University College London. She is currently working with the Asser Institute in The Hague.  She has worked for International Justice Mission in South Asia and the Centre for Research on Multinational Corporations (SOMO) in Amsterdam.

The Rome Statute is a central pillar of international criminal law (ICL), and so any discussion concerning the subjection of legal persons requires a revisit of the negotiations surrounding its drafting. However in the time since its implementation, there appears to have been a shift in ICL regarding corporate liability. Developing customary international law, treaty law and now most domestic legal systems have some established mechanisms for prosecuting legal persons for violations of ICL.

The Rome Statute

A lot has been written on the negotiations surrounding the drafting of the Rome Statute of the International Criminal Court (Rome Statute). This document established the International Criminal Court (ICC), its rules and jurisdiction, and codified the core crimes of ICL and surrounding general principles. Article 25(1) of the Rome Statute explicitly restricts the court’s jurisdiction to natural persons, meaning that corporate wrongdoing may only be approached by the ICC through individual criminal responsibility or superior responsibility for corporate actors.^[1] The Statute was a “major achievement”^[2] as the first international law instrument essentially summarising the general principles of criminal law across national legal systems.^[3] Concerns about ‘complementarity’ arose as the ICC would be expanding the reach of ICL far beyond the remit of ad hoc Tribunals like those used to try crimes in Rwanda and Former Yugoslavia. The new Court needed to complement, rather than undermine national courts and jurisdiction.^[4]

During negotiations, individual responsibility of legal persons, corporations or criminal organisations was described as “a major political issue on which political guidance from the Committee was needed.”^[5] France had submitted a compromise proposal in the International Criminal Court Draft Statute of 1998 concerning the inclusion of responsibility of legal persons. The French representatives surmised that resistance from other states to its inclusion was because there was no equivalent in some domestic legal systems, while others held the view that the concept would be misapplied in an international criminal court.^[6]

The French proposal linked the responsibility of the legal persons with the responsibility of criminal organisations at Nuremberg. Under this proposal, group responsibility would be linked with the previous commission of a crime by a natural person (thus in no way concealing individual responsibility), and adopting in parts Article 10 of the Charter of the Nuremberg International Military Tribunal,^[7] the Court would make binding determinations on the criminality of an organisation, which states would need to implement and then penalise by fines or proceeds of crime confiscation.^[8]

The proposed text was as follows:

“[Art 23(5)]: Without prejudice to any individual criminal responsibility of natural persons under this Statute, the Court may also have jurisdiction over a juridical person under this Statute. Charges may be filed by the Prosecutor against a juridical person, and the Court may render a judgement over a judicial person for the crime charged, if:

(a) The charges filed by the Prosecutor against the natural person and the juridical person allege the matters referred to in subparagraphs (b) and (c); and

(b) The natural person charged was in a position of control within the juridical person under the national law of the State where the juridical person was registered at the time the crime was committed; and 

(c) The crime was committed by the natural person acting on behalf of and with the explicit consent of that juridical person and in the course of its activities; and

(d) The natural person has been convicted of the crime charged.

For the purpose of this Statute, ‘juridical person’ means a corporation whose concrete, real or dominant objective is seeking private profit or benefit, and not a State or other public body in the exercise of State authority, a public international body or an organisation registered, and acting under the national law of a State as a non-profit organisation.”^[9]

This was a compromise solution from France between liberal and romantic conceptions,^[10] looking not only to convict ultimately the company or organisation, but rather still use it as a mechanism for attributing responsibility to individuals.^[11] Several countries supported the concept, however prevailing concerns of enforcement and complementarity remained, especially for countries with no basis of corporate criminal liability. The matter was referred to the Working Group following mixed reception from states, however once there, negotiations met stifling time pressures.^[12] Per Saland, the Chairman of the working group which negotiated issues surrounding Part 3 of the Rome Statute concerning these general principles of criminal law (including Article 25 on individual responsibility), has since revealed that time ran out for the Working Group when it came to discussion of some more difficult issues, including liability of legal persons.^[13] David Scheffer, who was also involved in the negotiations, has confirmed that the combination of time pressures and complementarity concerns prevented the proposal from succeeding, however he has added that another contributing factor was a more fundamental concern that the “novelty” of the proposed corporate criminal liability would have “imperilled” the entire treaty’s ratification by states.^[14]

No agreement was reached concerning subjecting legal persons. Article 25(3)(d) retained a reference to a ‘group of persons acting’,^[15] so the French idea of individual participation in a larger collective was incorporated to an extent, however all references to legal persons have been removed in the final article. Perhaps unintentionally, a similar door for corporate liability remained ajar in article 7(2)(a), through reference to organisational policy.^[16] In the ICC investigation into the Kenyan situation,^[17] the Court examined this issue:

“Clearly, the 'organization' is an entity different from a "State" if the legislator was to avoid redundancy. Thus, it is permissive to conclude that an 'organization' may be a private entity (a nonstate actor) which is not an organ of a State or acting on behalf of a State [para 45].”

The Court delineated various ‘state-like’ characteristics that a non-state actor would have to demonstrate in order to qualify as an organisation under this article,^[18] however none expressly excluded legal persons like companies from the article’s ambit. 

Andrew Clapham provides an in-depth history of the Rome Statute negotiations, and how controversial this question of legal persons became.^[19] This episode has been treated as a definitive rejection of ICL liability for legal persons,^[20] however the Rome Statute is just one (important) part of the larger ICL picture.

Post-Rome caselaw developments 

Since Rome, customary international law through Tribunals, treaty law, and domestic law have all developed. Most notably, for the first time legal persons have been subjected under ICL by an international criminal tribunal.^[21] In the Al Jadeed S.A.L. & Ms Khayat (New TV S.A.L.)^[22] case, an Appeals Panel for the Special Tribunal for Lebanon (STL) overturned a decision that the Tribunal lacked jurisdiction over legal persons on 2 October 2014, allowing the case to proceed against the corporate entity Al Jadeed S.A.L. and natural person Ms Khayat. This was then followed by another contempt case Akhbar Beirut S.A.L., similarly against a legal and natural person.^[23] In New TV S.A.L., Judge Baragwanath acknowledged the development of domestic corporate accountability, and so determined that international criminal law has likewise progressed:

“Corporate liability for serious harms is a feature of most of the world’s legal systems and therefore qualifies as a general principle of law. Where States still differ is whether such liability should be civil or criminal or both. However, the Appeals Panel considers that… corporate criminal liability is on the verge of attaining, at the very least, the status of a general principle of law applicable under international law.”^[24]

The decision has been met with a mixed reception. Filled with “historical references and normative ambition,”^[25] some commentators have characterised the decision as an encouraging progression from state practice and foundation stone for future ICL criminal liability.^[26] However the basis of Judge Baragwanath’s decision has been described by Dov Jacobs as a “molotov cocktail to kill the principle of legality” as the judge’s reasoning relied only on “the ‘spirit’ of the statute combined with inherent jurisdiction.” Others have found the later Akhbar Beirut S.A.L. opinion more convincing due to its more concrete basis in Lebanese law.

The Tribunal very consciously restricted their consideration and findings to the specific crime of contempt: looking to precedent, they examined only whether there had been previous findings on contempt with regards to legal persons in the various international criminal tribunals, and found there had “simply been no legal pronouncement on this specific issue.” ^[27] The Tribunal drew its power to prosecute for contempt from its inherent jurisdiction as a judicial institution.^[28] Like the ICTY and ICTR before it, the STL’s primary jurisdiction for ‘core’ international crimes is explicitly over only natural persons, however the separate framework in the general Rules of Procedure and Evidence allowed the Tribunal to consider the broader definition of ‘persons’ for contempt.  The importance of this distinction for the case does also support Andrew Clapham’s argument that “at this point, the exclusion of non-natural persons can be seen as the consequence of a ‘rule of procedure’ rather than the inevitable result of application of international criminal law.”^[29]

There is debate about the broader applicability of these decisions, because of the STL's ties to Lebanese law. The STL itself is a partially-domestic forum which reduces the ICL significance of an ‘international tribunal’ taking this step. The legal basis for the Tribunal’s decisions is at least partially grounded in Lebanese law -  Article 2 of the formative statute of the STL mandates the use of Lebanese law (under which corporate criminal liability is possible) - however it is debatable whether this case is purely an instance of domestic legal application of international criminal law. Article 2 concerns only the applicable criminal law, (i.e., the ‘core crimes’ discussed above) and not the procedural rules on which this decision was based, which are grounded in international law concerning international tribunals. It would then appear that the legal basis for this decision was purely international, and the Tribunal in New TV S.A.L. accordingly based their decision on  “current international standards,”^[30] however in the Akhbar Beirut S.A.L. case the Tribunal links back the foreseeability of this corporate prosecution to Lebanese law: “It would be an oddity for a Lebanese company to face criminal sanction in Lebanon for interfering with the administration of justice with respect to cases before Lebanese courts and at the same time enjoy impunity for similar acts before an internationalised Tribunal guided by Lebanese law in carrying out its judicial work.“^[31]

The highest profile media case last before an international tribunal also concerned the responsibility of legal persons. The International Criminal Tribunal for Rwanda (ICTR) had a special focus on the media’s role of incitement in the Rwandan genocide.^[32] As the Tribunal in the Akayesu case positively quoted: “it was impossible that hundreds of thousands of people should commit so many crimes unless they had been incited to do so.”^[33] The ICTR case of Prosecutor v. Nahimana et al.^[34] (also known as the Media Case) tried three natural persons for their roles in inciting the Rwandan genocide. Two of these were the controlling figures of media organisations: RTLM was a radio station and Kangura a publication. The court found a specific “specific causal connection” between RTLM broadcasts and the killings, which “engaged in ethnic stereotyping …[which] called explicitly for the extermination of the Tutsi ethnic group.”^[35] The articles published by Kangura similarly had the impact of “whipping the Hutu population into a killing frenzy.”^[36] What was distinctive about this case was that the court, before outlining the individual responsibility of the named accused, went into great detail about the culpability of the organisations in question. The court named the media organisations themselves as responsible for inciting genocide: “If the downing of the [President’s] plane was the trigger, then RTLM, Kangura and CDR were the bullets in the gun.”^[37] It was not possible under the ICTR’s jurisdictional mandate to subject legal persons and so the court in the Media case did not broach this issue, however the structure and substance of the court’s reasoning centred primarily on the responsibility of the organisations, and only after did the court then address the roles of the natural persons who were actually on trial.

What may merit further investigation is how media cases before international tribunals differ from the prosecution of other international crimes that corporate actors engage in, such as pillage or complicity. The media acts as the ‘fourth estate’, a fundamental and (ideally) independent pillar of a functioning system of democratic governance. Arguably then, media companies are not purely private, non-state actors but serve a partially civic function, and so are in some ways fundamentally different actors than other corporate entities.^[38] How the unique role of this specific ‘private’ actor impacts its liability under ICL warrants further investigation.

International instruments imposing some form of corporate liability

A growing number of recent international treaties and conventions are incorporating obligations to impose sanctions on legal persons.^[39] These include the Optional Protocol on the Convention on the Rights of the Child (Article 3(4)), Convention Against Transnational Organised Crime 2000 (Article 10(2)), and Convention Against Corruption 2003 (Article 26 (2)). As pointed out by Sabine Gless and Sarah Wood, these instruments remain vague about implementation.^[40] Nonetheless, for these crimes states are required in some form to impose sanctions on legal persons.^[41]

The Draft Articles on Crimes Against Humanity being prepared by the International Law Commission (ILC) may go the same way as the afore-mentioned draft of the Rome Statute, but for now Draft article 6, paragraph 8 contains explicit subjection of legal persons:

“Subject to the provisions of its national law, each State shall take measures, where appropriate, to establish the liability of legal persons for the offences referred to in this draft article. Subject to the legal principles of the State, such liability of legal persons may be criminal, civil or administrative.”

This final sentence allows for flexibility in domestic application, however the offences being contemplated are international crimes. This convention is being designed to be a development from the Rome Statute, the “next generation” of legal tools concerning crimes against humanity.^[42] The addendum to the ‘Fourth report on crimes against humanity’ drafted by Sean D. Murphy, Special Rapporteur of the ILC, links this article with the previously mentioned international law instruments which are subjecting legal persons.

Conclusion

The ICC is as yet not touched by these developments, however there are glimmerings of a shift in customary ICL. As will be explored in the next post in this series, most domestic legal systems now have established mechanisms for prosecuting legal persons for violations of ICL. The Rome Statute negotiations surrounding the subjection of legal persons were centralised on complementarity; if domestic law has fundamentally shifted in the interim period it makes sense that this issue be revisited in international caselaw and international instruments as well.

^[1] David Scheffer, ‘Corporate Liability under the Rome Statute’ (2016) 57 Harvard International Law Journal Online Symposium 35, 35.

^[2] Per Saland, ‘International Criminal Law Principles’ in Roy S Lee (ed) The International Criminal Court: The Making of the Rome Statute (Kluwer Law International NL, 1999) 190-191.

^[3] ibid.

^[4] Andrew Clapham, ‘The Question of Jurisdiction under International Criminal Law over Legal Persons: Lessons from the Rome Conference on an International Criminal Court’, in Menno Kamminga and S Zia-Zarifi (eds), Liability of Multinational Corporations Under International Law (Kluwer Law International, 2000) 139, 142.

^[5] ‘Summary records of the plenary meetings and of the meetings of the Committee of the Whole’ in Official Records of the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Rome, 15 June-17 July 1998, Vol. II, UN Doc. A/Conf.183/C.1./L.3, 132.

^[6] ibid 133.

^[7] Clapham (n 4) 147.

^[8] ‘Summary records of the plenary meetings and of the meetings of the Committee of the Whole’ (n 5) 133.

^[9] ‘Working paper on article 23, paragraphs 5 and 6, UN Doc. A/Conf.183/C.1/WGGP/L.5/Rev.2, 3 July 1998’ in Official Records of the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Rome, 15 June-17 July 1998, Vol. III, 252.

^[10] “A liberal conception of responsibility focuses on individual agency and abstracts individual wrong from collective action. The ‘romantic’ view admits that international crimes are typically by their very nature committed in collectivities, and thus closely connected to some degree of collective will. The two traditions have been in conflict since the naissance of international criminal law.” in Carsten Stahn, ‘Liberals vs. Romantics: Challenges of An Emerging Corporate International Criminal Law’ (2018) 50 Case W Res J Intl L 91, 99.

^[11] ibid, 100.

^[12] Saland (n 2) 194.

^[13] ibid.

^[14] Scheffer (n 1) 38.

^[15] See the Case Matrix Network commentary on Article 25(3)(d) for the relationship between this and the doctrine of Joint Criminal Enterprise (JCE).

^[16] “‘Attack directed against any civilian population’ means a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack” [emphasis added].

^[17] Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya: ICC-01/09-19-Corr 01-04-2010 110/163

^[18] “[para 68] As I have endeavoured to demonstrate above, certain criteria need to be satisfied to qualify a non-state actor as an 'organization' under the ambit of article 7(2)(a) of the Statute. This state-like 'organization' is the author of a policy "to commit such attack" against any civilian population which is implemented by its members using the means of the 'organization'. As in case of a State policy, it seems to me that the "organizational policy" must be established at the policymaking level of the ‘organization'."

^[19] Clapham (n 4) 142.

^[20] This negotiation process was used as a basis for the UK and Netherlands Amici Curiae brief in the Kiobel case, which argued that there was no corporate liability under international criminal law: “corporations have been deliberately excluded from the jurisdiction of the International Criminal Court.” Brief of the Governments of the United Kingdom of Great Britain and Northern Ireland and the Kingdom of the Netherlands as Amici Curiae in support of the Respondents (No. 10-1491) (filed 3 February 2012), 17.

In the Jesner v. Arab Bank, PLC decision, the negotiation process was cited by both Justice Kennedy in the lead decision [p 15] and Justice Sotomayor in her dissent [p 8], the former using it as evidence of ICL's rejection of corporate liability, and the latter characterising it as evidence merely of varying domestic practices and not a definitive rejection of corporate civil liability under the Alien Tort Statute (as was one of the issues in this case).

^[21] Nadia Bernaz, ‘Corporate Criminal Liability under International Law: The New TVS.A.L. and Akhbar Beirut S.A.L. Cases at the Special Tribunal for Lebanon’ (2015) 13 Journal of International Criminal Justice, 313, 313.

^[22] New TV S.A.L, Decision on Interlocutory Appeal Concerning Personal Jurisdiction in Contempt Proceedings, Al Jadeed S.A.L. & Ms Khayat (STL-14-05),, Special Tribunal for Lebanon Appeals Panel (2 October 2014).

^[23] Akhbar Beirut S.A.L., Decision on Interlocutory Appeal Concerning Personal Jurisdiction in Contempt Proceedings, Case No STL-14-06/PT/AP/AR126.1, 23 January 2015.

^[24] New TV S.A.L. (n 22) para 67.

^[25] Stahn (n 10) 98.

^[26] See Nadia Bernaz (n 21).

^[27] New TV S.A.L. (n 22) para 41.

^[28] As articulated in Rule 60 bis (A) [Contempt and Obstruction of Justice] of the Rules of Procedure and Evidence for the STL.

^[29] Andrew Clapham, ‘Extending International Criminal Law beyond the Individual to Corporations and Armed Opposition Groups’ (2008) 6 Journal of International Criminal Justice 899, 902.

^[30] New TV S.A.L. (n 22) para 60.

^[31] Akhbar Beirut S.A.L. (n 23) para 59.

^[32] “The power of the media to create and destroy fundamental human values comes with great responsibility. Those who control such media are accountable for its consequences.” Prosecutor v. Nahimana et al., ICTR–99–52, Judgment and Sentence (3 December 2003) para 945.

^[33] Akayesu (TC) ICTR-96-4 (2 September 1998) para 551.

^[34]Prosecutor v. Nahimana et al., ICTR–99–52, Judgment and Sentence (3 December 2003) para 953.

^[35] Ibid para 949.

^[36] Ibid para 951.

^[37] Ibid para 953.

^[38] This might be a controversial statement within the broader debate in Business Human Rights circles concerning the civil functions, and public duties and responsibilities, of all companies.

^[39] Bert Swart cites seventeen international instruments which have provisions on corporate criminal liability with discretion concerning state-level sanctions, “while before 1997 none existed at all": Bert Swart, ‘International Trends Towards Establishing Some Form of Punishment for Corporations’ (2008) 6 J International Grim Just 947, 949.

^[40] Sabine Gless and Sarah Wood, ‘General Report on Prosecuting Corporations for Violations of International Criminal Law: Jurisdictional Issues’ in S Gless and S Broniszewska (eds) Prosecuting Corporations for Violations of International Criminal Law: Jurisdictional Issues (International Colloquium Section 4, Basel, 21-23 June 2017) 16.

^[41] ibid.

^[42] See a summary of Professor Murphy’s 2015 Supranational Criminal Law Lecture at the T.M.C. Asser Instituut.

Editor's note: Sara Martinetto is an intern at T.M.C. Asser Institute. She has recently completed her LLM in Public International Law at the University of Amsterdam. She holds interests in Migration Law, Criminal Law, Human Rights and European Law, with a special focus on their transnational dimension.

On 29^th June 2017, four Nigerian widows launched a civil case against Royal Dutch Shell (RDS), Shell Petroleum N.V., the Shell Transport and Trading Company, and its subsidiary Shell Petroleum Development Company of Nigeria (SPDC) in the Netherlands. Esther Kiobel, Victoria Bera, Blessing Eawo and Charity Levula are still seeking redress for the killing of their husbands in 1995 in Nigeria. They claim the defendants are accomplices in the execution of their husbands by the Abasha regime. Allegedly, the companies had provided material support, which then led to the arrest and death of the activists.  

In the light of this lawsuit, it is interesting to retrace the so-called ‘Ogoni Nine’ legal saga. The case saw the interplay between multiple jurisdictions and actors, and its analysis is useful to point out some of the main legal issues encountered on the path to hold corporations accountable for human rights abuses.

The ‘Ogoni Nine’

‘Ogoni Nine’ is the name given by the media to a group of Nigerian men – Saturday Dobee, Nordu Eawo, Daniel Gbooko, Paul Levera, Felix Nuate, Baribor Bera, Barinem Kiobel, John Kpuine, and Ken Saro Wiwa – who were arrested for the alleged murder of four people. On 10^th November 1995, they were executed in Port Harcourt, Southern Nigeria. To understand what led to this episode, it is important to provide some historical context.

Royal Dutch Shell has been undertaking drilling operations in Nigeria since 1958, carried out through SPDC.[1] As explained by the UNEP environmental assessment report of 2011, both water and land were polluted by the extraction of oil and gas, causing massive environmental harm. This drove the inhabitants of Ogoniland, a region in the Niger Delta, to strongly oppose those activities. Thus, they created the Movement for the Survival of the Ogoni People (MOSOP), lead by Ken Saro-Wiwa:[2] in 1993, the movement counted more than 300 000 activists, half of the Ogoni population. They engaged in protests against the Nigerian government – which was accused of turning a blind-eye to Shell’s activities, since they provided for the majority of Nigeria’s export earnings[3] - and against companies extracting the oil, Shell amongst others.

In 1994, the ‘Ogoni nine’ were apprehended and held in military custody; no charges were pressed during their first eighteen months in prison. Eventually, a special military court tried them for the murder of four people, they were found guilty, and then hanged. The manner in which the trial was conducted caused the outrage of the international community and ultimately resulted in the suspension of Nigeria from the Commonwealth.

The Wiwa cases in the New York courts

The first attempt to seek justice for the execution of the nine members of MOSOP took place in 1996, when the son of Ken Saro-Wiwa filed three different lawsuits in a New York District court: one against Royal Dutch Petroleum, one against Shell Petroleum Development Company, and the last against Brian Anderson, the head of Nigerian operations at Royal Dutch Shell. The plaintiff alleged the complicity of Shell in the human rights violations perpetrated by the Nigerian government against MOSOP. In particular, the plaintiff claimed that the company provided material support both to the repression of Ogoni activists during protests and to the actual apprehension of the Ogoni Nine.[4]

Among other things, Shell was accused of offering transport, food and property to Nigerian troops, used to commit human rights abuses, which, according to the plaintiff, amounted to crimes against humanity. Therefore, the claims were brought both under the Alien Tort Statute (ATS), the Torture Victim Protection Act (TVPA), and the Racketeer Influenced and Corrupt Organizations (RICO) Act.

After thirteen years of legal battles, the parties reached a settlement: Shell paid 15.5 million dollars, covering compensation and legal expenses.[5] However, the company issued no admission of guilt or apologies: it submitted that the payment was given to “aid the process of reconciliation”.[6] Without a doubt, the extrajudicial settlement was a victory for the Ogoni people. However, the absence of a final ruling prevents an in-depth analysis of the multiple legal issues raised by the case.

Nevertheless, one aspect should be highlighted: the suit resisted numerous attempts by the defendant to have the case dismissed on jurisdictional ground. Specifically, the Court of Appeal, overruling the first instance’s dismissal, carried out an in-depth analysis on why the claim fell within the scope of US jurisdiction. It was found that Shell performed a variety of activities in the U.S. and that the claimant was also residing there. Therefore, there were no grounds to dismiss the case, neither under personal jurisdiction, nor under forum non conveniens. These conclusions remain particularly important, especially in the light of the following Kiobel case.

The Kiobel case and the Alien Tort Statute

In 2002, Esther Kiobel filed a civil claim against Shell under the Alien Tort Statute (ATS). This 1789 American Statute allows US District Courts to exercise civil jurisdiction on a claim brought by an alien alleging the violation of the law of nations. The plaintiff accused the defendant of aiding and abetting the Nigerian government to commit the violations of international law at hand in the Wiwa proceedings.

The case made it all the way to the Supreme Court, which famously held that the ATS was not applicable to the fact pattern. The 2013 decision of the Supreme Court was based on two main Arguments. First, the Court seemed unconvinced that the norms allegedly violated are “specific, universal and obligatory” as prescribed in Sosa v. Alvarez-Machain et al. Second – and most importantly – the conduct alleged by the plaintiff does not “touch and concern” the U.S. with a sufficient force, which will allow rebutting the presumption against extraterritorial application of the Statute.

The ruling of the Supreme Court attracted many comments and criticism: specifically, the concerns revolve around the interpretation of the ATS’ scope of application, and its possible impact on the outcome of other cases. Indeed, the application of the Statute turns out to be substantially limited by the narrow interpretation given in Kiobel. Regardless of the nationality of the parties, the Court seems to imply that the conduct should take place – at least partly – in the United States. Mere corporate presence is not considered to be enough of a link to ground jurisdiction of American courts.[7] In general, legal scholars are still debating some core questions, left unresolved by the Kiobel decision, related to the scope of the ATS.[8] In any event, the U.S. proved to be an inadequate forum to provide redress to the families of the ‘Ogoni Nine’.

The new Dutch lawsuit

A claim recently lodged in The Netherlands seeks to, at last, hold Shell accountable for the plight of the ‘Ogoni Nine’. Their widows are represented by Channa Samkalden – from the Amsterdam law firm Prakken D’Oliveira – which is managing the Dutch case with the support of Amnesty International.

An indication of what was about to happen came last October when Esther Kiobel petitioned a New York District Court to request discovery by the U.S. lawyers of the respondent. The documents requested were deemed necessary to seek redress for the violation of the applicants’ husbands “right to life, their right to a family life and their right to personal dignity and integrity”.

The new Writ of Summons refers to the “international jurisdiction of Dutch courts” under the Brussels I Regulation and the Dutch Code of Civil Procedure (CCP). The plaintiffs set out three different grounds for jurisdiction. Art. 4(1) and 63 Brussels I (recast Regulation) are used as a jurisdictional basis on RDS.[9] Jurisdiction on the non-Dutch defendant is instead grounded in art. 7(1) CCP, which provides for the possibility to attract multiple defendants to the same forum, where the claims against them are connected. Alternatively, jurisdiction over SPDC could also be established pursuant to art. 9(1) CCP, providing for the rule of forum necessitatis: i.e. Dutch courts have jurisdiction, provided that the claim is sufficiently connected to the Dutch legal sphere and that it is unacceptable to expect the claimant to submit the case to the judgment of a foreign court. The claimants submit that the Dutch parent companies wholly own SPDC, and that the defendants acted as a single entity when perpetrating the alleged conduct. Moreover, one cannot expect the claimants to file the lawsuit in Nigeria, given the involvement of the State apparatus in the events at issue. This argument is further reinforced by the fact that both Kiobel and Bera have been granted refugee status abroad.

To fully appraise the soundness and the chances of success of these jurisdictional grounds, it is necessary to take a step back and to look at the question through the lens of Private International Law (PIL).

Grounds for jurisdiction in PIL: between the European and the national level

Some scholars[10] had already anticipated that the failure to secure jurisdiction under the ATS in the Kiobel case was likely to result in a rekindled attention for PIL rules in business and human rights cases. As far as jurisdiction is concerned, the European PIL instrument par excellence is the Brussels I Regulation “on the jurisdiction, recognition, and enforcement of judgments in civil and commercial matters” within the EU.[11] In this framework, establishing jurisdiction over the parent company is fairly unproblematic. Art. 2 and 60 of the Regulation (transposed in art. 4 and 63 of the Recast) provide that defendants domiciled in a Member State can in principle be attracted in front of the courts of that Member States. This applies also to companies who are seated/have their central administration/have their principal place of business in that Member State.

However, the situation becomes more complex when foreign subsidiaries, especially if incorporated in States outside the EU, come into play. In the Kiobel case, the Dutch court claiming jurisdiction over SPDC is essential for the success of the case as the Nigerian subsidiary was at the heart of the events leading to the death of the ‘Ogoni Nine’. There are two potential grounds for an EU based court to have jurisdiction over non-EU based subsidiaries: the rule on multiple defendants based on related actions and the principle of forum necessitatis.[12] The latter is not provided for in the Brussels I regime. Hence, it is up to national legislation to include such a ground in their PIL. As far as the former is concerned, art. 6(1) Brussels I (art. 8(1) Recast) prescribe that a foreign defendant might faced court proceedings together with a domestic one when the claims against them “are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments”. The actual scope of application of this paragraph is sometimes hard to grasp. For instance, it is doubtful whether it could apply to non-EU based companies.[13] A negative answer will result in the need to resort to national rules of PIL. Thus, the possibility of Dutch courts having jurisdiction in a case involving a subsidiary such as SPDC will most likely hinge on Dutch rules regarding jurisdiction.

Two valuable precedents

An analysis of two recent cases – one in the UK and one in the Netherlands – can shed some light on the issue. In fact, both of them involved Shell and SPDC as defendants, and also invoked Brussels I as a ground to establish jurisdiction.

In the UK case, more than 40.000 individual claimants brought a class action against Shell over alleged environmental damages linked to oil spillage. On 26^th January 2017, the High Court of Justice (Queen’s Bench Division) ruled that the claims should be heard in Nigeria. Although jurisdiction over the conduct of RDS could be established pursuant to art. 4 Brussels I Recast Regulation, the possibility to try SPDC was to be assessed under domestic PIL, and specifically, the CPR Practice Direction 6B. Paragraph 3.1(3) of the CPR Practice Direction 6B provides that a claim against multiple defendants could be served if (a) the issue between the claimant and the first defendant is a real issue, “which it is reasonable for the court to try”, and (b) the other defendant is a “necessary and proper party to the claim”. Thus, the English Court focused on verifying whether the claimant had a cause of action against the “anchor defendant” (i.e. RDS). Examining the evidence, the Court held that RDS had no duty of care over the extraction activities carried out by SPDC, and, hence, there was no legal claim that would tie the issue to UK jurisdiction (§118).

In a previous decision, the Dutch courts came to an opposite conclusion. Similarly, the three joint cases[14] concerned alleged negligence of RDS and SPDC with regard to the environmental damages caused in the Niger delta. On 18^th December 2015, the Court of Appeal of The Hague held that Dutch courts have jurisdiction to hear the claim both against the parent company (pursuant to art. 2(1) and 60(1) Brussels I)[15] and SPDC (pursuant to both art. 6(1) Brussels I and art. 7(1) Dutch Code of Civil Procedure (CCP)). Art. 7(1) CCP prescribes that a defendant might fall under the jurisdiction of Dutch courts when jurisdiction is established against another defendant, “provided that the rights of action against the different defendants are connected with each other in such a way that a joint consideration is justified for reasons of efficiency”. Therefore, it resembles art. 6(1) Brussels I, and, moreover, the two norms were interpreted by the Court as linked and mutually reinforcing. As a result, the Court stated that the interest of having the claims against both companies heard together prevails over the allegations that the contentions against SPDC should be heard in Nigeria.

Comparing the two judgements, it appears that the two Courts have tackled the issue from two different angles, which reflect the wording of their domestic PIL. In particular, the Dutch Court deferred the question of whether the claims against the parent company were founded for a later phase of the proceeding, holding that it was too soon to determine whether these claims were bound “to fail from the outset”(§3.7). Moreover, the Court referred to the principle of perpetuatio fori. In other words, jurisdictional questions are solved at the outset of the proceeding. In the event claims against RDS proved unfounded on the merit, jurisdiction over SPDC would still stand.

Therefore, the ruling of The Hague Court of Appeal, and the regime provided in CPP by both art. 7(1) and 9 might prove to be a key element for the success of the new Kiobel lawsuit. Were the Dutch Court to find the claims against Shell and SPDC substantially interwoven (in the meaning of art. 7(1) CCP), arguably the need to hear the allegations against the two companies in the same proceeding would outweigh the reasons for having two separate judgements in the Netherlands and in Nigeria. In the alternative, art. 9 CCP, prescribing the principle of forum necessitatis, could still provide a jurisdictional ground on SPDC.

Conclusion

The new Kiobel case brings to the fore the strategies and opportunities available to victims seeking redress from multinational companies for human rights abuses. The strict interpretation of the ATS by the Supreme Court in the American edition of the Kiobel case has caused a geographical re-location of the complaints towards Europe and, in particular, The Netherlands where Shell is seated. In this regard, the jurisdictional regime stemming from private international law rules becomes crucial.

Notwithstanding the valuable ground provided by the Brussels I regime,^[16] the national norms on PIL still play a predominant role, at least with regard to the establishment of jurisdiction over non-EU based subsidiaries. As the UK and Dutch cases show, these rules might be more or less flexible and entail diverse legal reasoning potentially leading to contradictory outcomes, and which will ultimately determine the possibility to have the case heard on the merit.

The 2015 precedent bodes well for the Dutch Court to assert jurisdiction in the new Kiobel case. Albeit this does not mean the Court will side with Kiobel and the other widows on substance. Winning on jurisdiction would be a first step, a key initial success necessary to be properly heard, but for the claimants there would still be a long and difficult road ahead before finding justice.  

[1] E. Hennchen, Ibid.

[2] NBC News, Shell settles human rights suit for $15.5 million, 6 August 2009

[3] BBC, 1995: Nigeria hangs human rights activists, 10 November 1995

[4] NBC News, Shell settles human rights suit for $15.5 million, 6 August 2009

[5] Ibid.

[6] Ibid.

[7] S. H. Cleveland, After Kiobel, in  Journal of International Criminal Justice, 2014, 556

[8] See N. Bhuta, The Ninth Life of the Alien Torts Statute - Kiobel and After, in Journal of International Criminal Justice, 539-550; S. H. Cleveland, After Kiobel, in Journal of International Criminal Justice, 2014, 551-577

[9] Prescribing that a claim must in principle be lodged at a court located in the Member States where the defendant is domiciled. Regulation 1215/2012/EU (Brussels I)

[10]See G. van Calster, C. H. Luks, Extraterritoriality and Private International Law, in Recht in Beweging, 2012, 119-135 and G. van Calster, The Role of Private International Law in Corporate Social Responsibility, Erasmus Law Review, No.3, November 2014, 125-133.

[11] The Brussel Regimes now comprises Regulation 44/2001/EC (Brussels I), and was recast as Regulation 1215/2012/EU .

[12] The principle establishes that a State can exercise jurisdiction, when otherwise there will be no access to justice, due to the unavailability of an alternative forum.  F. J. Zamora Cabot, L. Heckendorn Urscheler, S. De Dycker, Implementing the U.N. Guiding Principles on Business and Human Rights. Private International Law Perspectives, Schulthess Medias Juridiques, Geneva, 2017, 43

[13] F. J. Zamora Cabot, L. Heckendorn Urscheler, S. De Dycker, op. cit., 2017, 45 and 147

[14] Court of Appeal of the Hague, A.F. Akpan v. Royal Dutch Shell, plc; E. Dooh v. Royal Dutch Shell, plc; F.A. Oguru v. Royal Dutch Shell plc, 18 December 2015

[15] The two articles refer to the first versions of Brussels I Regulation 44/2001/EC; they are the equivalent of art. 4 and 63 of the recast Regulation.

[16] D. Lustig, Ibid.