Carlos Lopez, Senior Legal Adviser at the International Commission of Jurists, and Marilyn Croser, Director of CORE.
This blog was originally published by OpinioJuris.
The United Kingdom Supreme Court is presently considering an interlocutory appeal by the company Vedanta Resources and its Zambian subsidiary KCM challenging a Court of Appeal decision to uphold jurisdiction of UK courts in the case and allow the plaintiffs, some 1800 Zambian villagers to pursue their case against both companies in the United Kingdom. A contention in the appeal concerns jurisdiction and whether the England and Wales court is the proper forum, assorted with issues on forum non conveniens and access to justice in Zambia and in the UK. Yet the Court also must resolve the crucial issue of whether the claimants have real prospects to establish that Vedanta as a parent company arguably does owe a duty of care to third parties, in this case the villagers living in the vicinity of its Zambian subsidiary. If so, this would go some way to establishing the decisive question as to whether the claim has a real prospect (an arguable case) of succeeding or rather bound to fail?
The International Commission of Jurists together with the CORE Coalition are intervening in this appeal.
In 2015 Villagers of Chingola (Zambia) filed a civil suit in the United Kingdom for negligence in tort against Vedanta Resources Plc (Vedanta), a UK incorporated parent company, and Konkola Copper Mines Plc (KCM), its Zambian subsidiary. They claim that Nchanga copper mine – owned and operated by KCM – negligently discharged waste and polluted the local waterways, causing personal injury to the local residents, as well as damage to property and loss of income.
The Court of Appeal’s judgment of 13 October 2017 in Lungowe and Ors. v Vedanta Resources Plc and Konkola Copper Mines Plc  EWCA Civ 1528, dismissed the companies’ objections, giving the go-ahead for the claim to proceed in the courts of England and Wales. Prior to this, in 2015 the High Court had also held that the claimants could bring their case in England and Wales, despite the fact that the harm occurred in Zambia, where both the claimants and KCM – the direct agent causing harm- are domiciled. At all levels, Vedanta and KCM have argued that the courts of England and Wales do not have jurisdiction on a number of grounds, including the lack of an arguable case, and that the appropriate forum is Zambia, the jurisdiction of which Vedanta would agree to submit.
The current appeal before the UK Supreme Court is of great significance beyond the case at issue and its outcome is expected to elaborate on existing law in an area key to the governance of economic globalization. Two similar cases in which lower courts found that there was no arguable case and the claimants had no prospect of success are queuing up in the appeals line to the Supreme Court and their fate largely depends on the outcome of the Vedanta case: AAA v Unilever (2018) EWCA Civ 1532, and Okpabi v Royal Dutch Shell Plc (2018) Bus L.R. 1022. At the core of the resolution of the Vedanta and the other disputes lies the potential of the judiciary in common law countries to creatively and gradually construe the law to respond to novel situations without the need to have recourse to new legislation, provided that they can build on well-established principles.
The plaintiffs and interveners are hopeful that the Justices of the UK Supreme Court will be prepared to accept the incremental development of the common law in this area. As interveners International Commission of Jurists and CORE Coalition remarked in our written submission: “ the characteristic approach of the common law… is to develop incrementally and by analogy with established authority” (citing Robinson v Chief Constable of West Yorkshire Police (2018) UKSC 4 (2018) 2 WLR 595). Already in the Court of Appeal’s decision on the case, responding to Vedanta’s submission that there was no prior authority for the argued widening of the duty of care, Simon LJ stated: “That may be true, but it does not render such a claim unarguable. If it were otherwise the law would never change”.
This being the case and expectation, let’s turn to key issues debated before the UK Court. […]
Read the full blog here.