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NGOs and legal experts call on the EU to allow UK accession to Lugano Convention on access to justice grounds
The United Kingdom must be allowed to accede to the Lugano Convention, a cross-border legal cooperation treaty, on grounds concerning access to judicial remedy for victims of corporate human rights abuses.
The Lugano Convention is an international judicial treaty negotiated by the EU with Iceland, Norway and Switzerland on matters of jurisdiction in civil matters. It supplements the corresponding Brussels I Regulation Recast, which only applies to EU members. On 8th April 2020 the UK applied to accede to the Lugano Convention.
The Lugano Convention and Brussels I Regulation Recast both overcome a longstanding barrier faced by overseas victims of corporate abuse when attempting to access judicial remedy – the so-called forum non conveniens doctrine.
The forum non conveniens doctrine allows a defendant corporation to argue that the most appropriate forum for cases against them is that of the victims’ domicile. This allows the transfer of transnational cases against European companies away from European courts to jurisdictions where claimants are likely to face a variety of additional barriers to accessing justice. The doctrine also provokes jurisdictional arguments that add years to litigation. The case Lubbe & others v Cape PLC (2000) is a tragic case in point, when around 1,000 out of the 7,500 foreign plaintiffs died awaiting the resolution of Cape PLC’s forum non conveniens arguments in UK courts.
The Lugano Convention and Brussels I Regulation Recast overcome the forum non conveniens doctrine by establishing mandatory jurisdiction over companies where they are domiciled. No other existing and applicable international judicial cooperation treaty, including those concluded under the Hague Conference on Private International Law, includes this same, essential rule.
During the UK’s membership to the EU, the Brussels I Regulation Recast facilitated the bringing of numerous historic claims against UK companies in UK courts by overseas victims of corporate human rights abuses in cases such as Vedanta v. Lungowe (2019) and Okpabi v. Shell (2021). It also led to numerous settlements providing much-needed financial remediation for overseas victims. Without the UK now joining the Lugano Convention, the doctrine will re-apply in future cases against UK corporations in UK courts. This would be a damaging blow to corporate accountability at exactly the time UK courts are beginning to recognise causes of action against UK companies for harms abroad; and when the EU is developing a corporate human rights and environmental due diligence regime with proposed improvements to judicial remedy for victims harmed by EU companies abroad.
Under Pillar III of the United Nations Guiding Principles on Business & Human Rights, the EU and its Member States have committed to advancing access to judicial remedy for victims of corporate human rights abuses. In light of this international human rights commitment, the United Kingdom must be allowed to accede to the Lugano Convention.
Signatory networks and organisations
European Coalition for Corporate Justice
Corporate Justice Coalition UK
Fédération internationale des Droits de l’Homme / International Federation for Human Rights
European Centre for Constitutional & Human Rights (ECCHR)
Brot für die Welt / Bread for the World
Human Rights International Corner
Signatory legal experts
Michael Bogdan, Professor Emeritus of Comparative and Private International Law, University of
Lund, Sweden
Professor Francisco J. Zamora Cabot, Chair Professor of Private international Law, Universitat Jaume I of Castellón, Coordinator, REDH-EXATA, Spain
Dr Claire Bright, Associate Research Fellow at the British Institute of International and Comparative Law; Assistant Professor in Private Law at Nova Law School, Portugal
Gabrielle Holly, Senior Adviser, Human Rights and Business Department, Danish Institute for Human Rights, Denmark
Dr. Başak Bağlayan, Post-doctoral Researcher, Department of Law, University of Luxembourg, Luxemburg
Dr Nadia Bernaz, Associate Professor of Law, Wageningen University, the Netherlands
Prof. Dr. Markus Krajewski, Fachbereich Rechtswissenschaft, FAU Erlangen-Nürnberg, Germany
Dr Onyeka Osuji, Professor of Law, University of Essex School of Law, United Kingdom
Dr Tara Van Ho, Lecturer, University of Essex School of Law and Human Rights Centre, United Kingdom
Professor Robert McCorquodale, Professor of International Law and Human Rights, University of Nottingham; and barrister and mediator, Brick Court Chambers, United Kingdom
Professor Peter Muchlinski, Emeritus Professor of International Commercial Law, SOAS, University of London and Door Tenant, Brick Court Chambers, United Kingdom
Dr. Mark B. Taylor, Senior Researcher, Fafo Institute for Labour and Social Research, Norway
Dr Jernej Letnar Černič, Professor of Law, European Faculty of Law, New University, Slovenia
Dr Anil Yilmaz Vastardis, Senior Lecturer, University of Essex School of Law and Human Rights Centre, Co-director of the Essex Business and Human Rights Project, United Kingdom
Dr Ekaterina Aristova, Postdoctoral Fellow at the Bonavero Institute of Human Rights (University of Oxford) and co-convenor of Oxford Business and Human Rights Network, United Kingdom
Dr. Lucas Roorda, Assistant Professor, Utrecht University, and Postdoctoral Researcher, Utrecht Center for Accountability and Liability Law, The Netherlands
Dr Manuel Penades Fons, Senior Lecturer in International Commercial Law, King’s College London,
United Kingdom
Professor Andreas Rahmatian, Professor of Commercial Law, University of Glasgow, United Kingdom
Dr. Marta Bordignon, President at Human Rights International Corner (HRIC), Adjunct Faculty at Temple University, Rome Campus, Italy
Marco Fasciglione, Researcher in International Law, Italian National Research Council (CNR), Alternate Member of the Management Board of the European Union Agency for Fundamental Rights (FRA), Italy
Maria Pia Sacco, Senior Project Lawyer, IBA Legal Policy and Research Unit, United Kingdom
Elise Groulx Diggs, Co-Chair of the IBA Business Human Rights Committee, Associate tenant at Doughty Street Chambers, United Kingdom
Dr Joanna Hoekstra, Lecturer, University of Essex School of Law, United Kingdom
Nicolás Carrillo-Santarelli, Associate Researcher of the Human Rights and Business Institute, University of Monterrey (UDEM), and Professor in the Masters Programme of International Law at La Sabana University, Colombia
Professor Iva Lein, Senior Research Fellow in Private International Law and Director, Centre for Comparative Law, British Institute for International & Comparative Law, United Kingdom
Lise Smit, Senior Research Fellow in Business and Human Rights and Director, Human Rights Due Diligence Forum, British Institute for International & Comparative Law, United Kingdom
Would you like to add your (organisational) name to this public statement? Send an email to christopher.patz[at]corporatejustice.org
