IMPACT OF BREXIT ON ACCESS TO JUSTICE IN BUSINESS AND HUMAN RIGHTS MULTIJURISDICTIONAL DISPUTES
It is often extremely difficult, if not impossible, for victims of abuse by multinational companies to access justice in their own domestic courts. Many victims of human rights abuses cannot afford to pay for legal representation and are therefore dependent on legal aid or lawyers willing to act on ‘no win no fee’ agreements. In many jurisdictions, legal aid is not readily accessible and either no win no fee agreements are not legal under local laws or only a very small pool of lawyers are willing to act on one, leaving victims with no access to remedy.
Victims, therefore, are often forced to seek justice outside of their home country, by bringing actions in the jurisdiction of the multinational company itself, or its parent company. Many recent such examples have been heard by the courts of England and Wales, such as Lungowe v Vedanta (2019) UKSC 20, Okpabi v Royal Dutch Shell (2021) UKSC 3 and Begum v. Maran (2021) se examples was issued before 1 January 2021, the point when the UK ceased to be a member of the EU. The claimants, therefore, could rely on EU legislation, namely the Recast Brussels Regulations, which allowed them to sue a defendant domiciled in the UK as of right. None of the defendants were permitted to defend the substantive claims on the basis that another jurisdiction, other than the UK, was the more appropriate forum to hear the claim, a principle known as forum non conveniens. The unavailability of a forum challenge in business and human rights claims brought against UK-domiciled defendants was confirmed by the Supreme Court in Vedanta.
Jan-Mar 2023 issue
Leigh Day