Very good evening, welcome to everyone here in the lecture hall and in the Zoom room.
I'm very happy that we have a lecture again in hybrid format. We can meet part of some of us,
many of us can meet in this lecture hall room but there are also many of us joining us through Zoom.
It's my extreme pleasure and privilege to welcome Dr. Mirjam Sage-Maas once again, I should say,
to FAU because Mirjam has been at this university before for conferences and also for summer schools
and we have been working with Mirjam and ECHR together with a number of publication projects.
Mirjam Sage-Maas is legal director at the European Center for Constitutional and Human Rights and
she's also the program leader on business and human rights in that organization. She's been
very instrumental in a number of high-profile litigation cases in Germany, most notably the
so-called KICK case, a case which has already been discussed in this lecture by various presenters
and obviously Mirjam will tell us about her practice, reflecting on the practice. Mirjam is
a lawyer, she holds a PhD from the University of Frankfurt. She also lectures at the Freie
Universität Berlin. She would lecture at our university if she would have never learned that
but we share her expertise with the Freie Universität Berlin. Mirjam, you have the floor.
Thank you for the invitation. It's very nice. It's also very nice to do this hybrid, to see a couple
of Vian faces. I've been asked to talk about civil litigation in the field of business and human rights
and I think I'll do my best to combine or explain the connection between civil litigation and
human rights and businesses, which is I think at least from a legal perspective not at all
super, not a clear no-brainer. Probably a brief introduction of what ECHR is. So we are
a non-profit organization. We are primarily dedicated to using legal procedures to enforce
human rights and civil rights and our goal is to help persons whose rights have been violated,
who've been negatively affected by, in particular, powerful actors to help them find access in
European and in particular in German courts. We're not only working on cases of human rights,
but we are also working on cases where we are helping survivors and witnesses to access
universal jurisdiction cases. Probably you've been reading in the news about the most recent
judgments in Koblenz on Syria, where quite a high-ranking Syrian official has been sentenced
under the International Criminal Code of the United States of America. And we're also working
on the International Criminal Code of Germany. We've been representing and accompanying witnesses
and passing civil claimants in that criminal procedure, but we're also challenging pushbacks
at the EU borders with several cases before the European Court of Human Rights on this practice of
pushbacks. So when we talk about business and human rights, I think it's important,
or the way I've approached this, and I think me as an organization, I think it's important to think
about what are typical cases or case scenarios in which a lawyer would think about, well,
has there been a business enterprise, a company engaged in a human rights violation? And roughly,
we've been trying to organize our work when we've analyzed into three areas. I still believe that
they do make sense. Obviously, it's always a bit, yeah, making categories is always a tricky
enterprise, but anyways, I think they still make sense. So one is the involvement of companies in
conflict regions and cooperation with repressive regimes. So historically, this is, I would also
say, the most classic field of business and human rights. If you take the Nuremberg trials as sort
of the birthplace of individual responsibility for worst of individuals, not of states, for worst
human rights violations, then that is the Nuremberg trials. And in the Nuremberg trials, it was
already clear for the prosecutors that if you want to really not only look at the government
officials and military officials that have been directly responsible for the commission of war
crimes and other atrocities of the Nazi regime, but if you look more broadly into other societal
actors, you do need to look into the role of what back then was called the industrialists.
And you have then therefore the follow-up trials against Krupp, against IG Farum, managers and
owners. And yeah, I'm losing the third name. So I think that idea and that practice got lost
and was dormant for a number of years. But then the most sort of, you have some of the most
emblematic cases that people still remember is the execution, the extra legal execution of
Ken Samo-Riba, a Nigerian environmental activist who's been executed by the Nigerian military
regime, but allegedly supported by Shell because his opposition was mainly targeting Shell as the
operation for the operations in Nigeria. You can look at the example of European arms traders
at our manufacturing arms, the Eurofighter Consortium. And then you've just been on the news,
I think last weekend again, a serious, what looks like as the information we have now,
but what also international experts say, what very much looks like the commission of war crimes
committed by the Saudi Arabian fleet and other affiliated fleets using the Eurofighter and
bombs that go with the Eurofighter for a good number of them produced in Europe,
are used to commit war crimes in Yemen. Another example is the whole debate, you probably are
also familiar with the role of companies buying diamonds or other resources in conflict regions
and by that fueling conflict, paying conflict parties. A very emblematic case that is currently
before French courts is a case against Lafarge, a cement company, where it has actually been
able to prove that they have been financing several war parties of the civil war in Syria,
among them ISIS, and that is actually a trial that is currently ongoing.
The next area is exploitation of human rights, exploitation and human rights abuses in global
supply chains. They're quite also again emblematic are the
actually three factory disasters happening between September 2012 and April 2013.
So that's the Ali Enterprises factory fire in Pakistan, a Tazrin fire, I'm not naming that
because there's not been international transnational litigation around it, the Tazrin fire in Bangladesh
and the Rana Plaza collapse also in Bangladesh. And there the question is, you know, how responsible
are brands, so companies that are actually at the end of the supply chain that are buying from those
factories and what responsibility do they have with regard to serious neglect of workplace safety,
fire safety measures. And additionally, that has also been those set of cases have been raising
the question, what about companies that do certification and audit?
So that actually help companies to fulfill their corporate social responsibility by visiting
factories and auditing and having a look at working conditions.
Another issue that is very widespread and has been recently also been on the news again on
text in the textile industry is gender based violence at the workplace, but obviously clearly
not restricted to textile industry. Again, the question is, what about companies that
again, the textile industry example is wage theft. What is what rights groups try to
frame as wage theft, which is sometimes called the COVID cancellation crisis. So when COVID
was hitting Europe in beginning in spring 2020 and shops were closing down,
the demand for clothes dropped dramatically, but also other goods. And what come, how the
lead firms brands reacted to stay all canceled their contracts and or they refuse to pay
for goods that they've already received, arguing that that actually that under force majeure
and that's a German term. So under higher circumstances, they were not obliged anymore
to fulfill the contract and sense of pain, which then led to the fact that
that the factories themselves were not able to pay the workers. And there, so if you think about,
I think I'm still workers in South Asia have not been around the world, but the focus of the
recordings on South Asia have not been paid their wages for half a year in 2020.
Obviously then, you know, there's been much talk about forced labor in, again,
Yugo region that is not only restricted to cotton, but you know, solar industry, any other industries,
agriculture on the Arabic peninsula. And there's been much reporting on the forced labor situations
in the construction work around the world football cup and others. And obviously also very
well known and notorious child labor in cocoa production. And another area is I would call
environmental pollution. And I restricted, but I think it's actually more wide, but to give it a
bit of a, you know, to narrow it a bit down and it's environmental production in mining and agribusiness,
which leads to human injuries. And I'm making the distinction because with cell litigation,
I think that is very, very important that you always have a link to individuals being negatively
affected by the environmental pollution. And so in agribusiness, you can look at hazardous pesticides
exported from the EU to India and other countries in mining, very classic as asbestosis
that has been, that work is contracted in asbestos mining, for example, in South Africa.
There are also cases of lead poisoning and other or poisoning of other hazardous substances
in mining projects and somewhat connected, probably would deserve a different area. But
when I was thinking about this, there's also a lot of times connected to the protest against
certain mining projects, for example, or other, you know, other company projects. And there is
repression against those protesting. So environmental defenders, human rights defenders
are very much under pressure and it depends on how much, and it varies how much a company can be
involved in the repression of those. A lot of times, like in cases of Berta Caceres, it was never been,
it's not possible to contribute her murder to an international company, but actually,
I think it's been now established by courts that is actually also, she was killed by someone hired
by one of the local companies. And international case or transnational case was the Monterico case,
also in Peru on a mining project where the personnel of the mine actually really got involved in
torturing protesters. So, you know, why I think what I like is when we will talk a lot about the
complexities and the difficulties of these cases. And I think I find it important to take a step
back and wonder why is that so, right? So, you know, we've got international economic law, which
works pretty well, establishes, and also the global economy is governed and organized through law.
I think that's something to think about. And then obviously we have human rights and we've got social
rights and they're actually also governed by law. But somehow, you know, how is it possible that we
still see those human rights violations? And I think on a normative level, I think one needs to
understand that international law is a field of law where those bodies of law are equally well
developed. But at the same time, we do not have any hierarchies in international law between,
you couldn't say human rights law is above international economic law and therefore
international economic law must be understood in coherence with human rights. They are simply
separate bodies of law and you do see conflicts and those are not just in the international law.
You do see conflicts and those conflicts are not resolved. And I think the next thing is where those
two bodies of law differ because that's something that usually comes from the business side that
people say, oh, human rights law, that's so unprecise. And they also say, oh, it's really
confusing and, you know, a lot of unclear terms. And I would generally say, no, that is simply not
true. It's a very well developed, also dogmatically well-developed field of law. It's
just something different than if you know about international economic law, you know,
and which is also, you know, well-developed as it's dogmatics and so on. Now then the difference
between those two fields is that clearly I would say that enforcement works much better when it
comes to economic law, international economic law, than it comes to human rights law. And interestingly
enough, it's not necessarily that in international economic law, as far as I can see, it's not
necessarily that this is a very well regulated enforcement through public mechanisms or through
international courts, but very much it's as strong private enforcement mechanisms. Why? Because the
actors engaged in it really have an interest in this law being effectively enforced because it is
regulating business relationships and everyone wants this to go smoothly. Everyone who's also
subjected to this set of law. While in human rights law, that is, you know, enforcement is much
more difficult. And that is because it's being targeted, using the example of, yeah, of ex-cid
tribunals, for example, you know, dispute and international dispute settlement tribunals,
they work pretty well. And usually, you know, businesses come to conclusions I think they're
rather satisfied with. In the human rights system, the problem is that, you know, the UN system is
supposed to make determinations about sovereign states. And over the last years, we've been seeing,
you know, that not necessarily that there are a number of countries in this world that do not
really care about human rights, allegation of human rights violations anymore so much.
So there's another dogmatic problem, which is really serious is that that is that corporate
actors actually not really bound by international human rights law. And I think that is what one has
to say to the benefit of corporate lawyers or company officials, is that obviously human rights
law, if you look at it, and if you look at all the dogmatics, they're directed towards states and
the reasoning is not directed towards one of the responsibilities of companies. So obviously,
there needs to be some transfer needs to be done. And the next thing, if you go into a lower level,
if you would, for example, take corporate structures or global value chains, they are also
organized by law. But they are clearly organized in a way that it is that the law functions in the
in the interest of business transactions generated smoothly, and is not is not organized in a way that
interests of other stakeholders or workers would be sort of be taken in regards to.
So some of the legal critiques, I think that you can have may prove true. But yeah, let's leave that
for now. So that is that is one example of contractualization in lower supply chains.
I think that is about that's a cotton cotton supply chain, which only goes into the into the
cotton sewing department. So very complex. And, and, but all governed by law, we can't forget,
no. So those are our business transactions. I think the ratio between behind those supply chains is
is it is the economic driver for supply chains is to externalize economic costs. And I would say
also social costs because social costs or costs for labor costs of, you know, keeping environmental
standards realize as as costs in the production. And the reason why I would not have, you know,
a company structure, which has integrated its whole value chain is because I am, you know,
then I am responsible for all the economic risks and costs that are involved in that process. While
if production is put onto different independent actors, each actor is responsible for his own
costs and his own economic risks. And me as a supplier who's getting I'm not responsible
anymore. So I am by law not responsible for the labor rights violation in my contractor premises.
That's that is it's pretty clear set. So and I think this is why, you know, trying to do the
opposite all the cases we're going to talk about are trying to do the opposite, but it's actually
not in the logic of contract law for itself. So let's talk about enforcement mechanisms.
Obviously, I talked about this international. So that's the idea of enforcement mechanisms of
persons that say I have been violated in my human rights, and I think there is a company that is
responsible for that right. So where where could I look at? And I think it makes sense to differentiate
between the international level and the national level. And at the national level, it again makes
sense to differentiate, but I come to that. So at the international level, it's mainly soft law
mechanisms that exist. So you cannot go to the human rights to any regional human rights courts,
not to European not to the inter American, to my knowledge, but I may be wrong also not to the
African Commission and human rights. If I want to make responsible the business actor, the government
I may think about. And the same goes for the UN system, not possible to go against business
actors. So there are soft law mechanisms like the ILO, there's a review and complaint procedure,
which is accessible exclusively to unions. Actually, the ILO has been interestingly,
or has been quite engaged on compensating the Rana Plaza disaster, as well as on the enterprises.
So they actually did play an interesting role in establishing compensation schemes. And you have
OCD guideline procedures, complaint procedures, which is also a set of soft law norms created by
the OCD. In each OCD country, there is one contact point in the government, where individuals or NGOs
can bring complaints and by saying we believe this company has been violating the OCD guidelines.
They are very much aligned to the UN guiding principles on business and human rights.
And then there's one exception, one can think about international criminal court regarding the
criminal liability of individual corporate officers, which we are trying to convince the
office of the prosecutor at the ICC off to go after European arms traders, not successful so far. And
there's been no case, no investigation so far against the corporate actors there.
At the national level, you get your criminal law, you have civil compensation law, support law,
personal injury, and you've got civil labor law. So then again, it makes sense as we're talking
about, or I'm talking about human rights violations and civil litigation in a transnational context.
That means you can look at the different actors that are involved, for example, in a value chain,
and that may have played a role or contributed to a certain rights violation. And that means,
obviously, you always have the country and the actors that are located in the country where the
harm has occurred and where the violation has occurred. So obviously, and there, if you take
the example of the enterprises factory fire, obviously there has been a factory owner who has
neglected fire safety. You have government officials who were supposed to do fire safety
inspections and never did. So there are a number, and then there comes the question, well, does the
government need to, what does the government in general need to do about the fact that this
employer has constantly not been paying into all these benefits and other insurances and
health insurances of the workers? So obviously, again, you can also think there about civil
compensation law. You can think about labor law. That actually, labor courts have been
involved in the anti-crisis litigation in Pakistan. And you can, in the Asian context, at least,
I have not mentioned it, but you can also think about public interest litigation, which in Pakistan
has been quite actively been engaged with. And the victims, families, and survivors actually gained
substantial compensation from the Pakistani state without litigation. So in Pakistan. And then you
can look at the country where the company is headquartered. So again, you have civil compensation
law, tort law, personal injury law, or this particular US law, which is the Alien Tort Claims Act.
We will talk later about that. In the country where the company is headquartered, which is a lot of
times also the country where the consumer goods are being consumed, you can think about consumer
protection law, because that's also, again, the consumers are a stakeholder that may bring
civil litigation. Now, to have a look into the historic development of civil litigation
against corporations and in the field of business and human rights.
I did mention, well, I started by referring to the Nuremberg trials and the Nuremberg follow-up
trials. I would not, obviously that was a civil law. So that's why I'm not mentioning it here.
And from my understanding, I would say that the first cases that have been starting actually this
idea and this practice, they are US cases and they're brought in before US courts under the
so-called Alien Tort Claims Act. So that is, I think the Unicar case was won in 1989. That is
the case against Unicar, a mining company that has been oil company that has been building an oil
pipeline in Myanmar and has been engaging in forced labor and so on. And then in the 1990s,
from then, a number of other cases have been brought in the US, including a case of Kenzawa
Weaver against Shell. We do see that in the 2000s and 2010s, US courts and then, and finally also,
the Supreme Court has significantly restricted the applicability of the Alien Tort Claims Act.
What is very special about this act is that it gives the opportunity to ask in a civil court for
compensation by alleging, well, this actor that I'm asking the compensation for has been involved
in a violation of international law. So you can, it was used to make a very clear, very broad
argument. This business enterprise has been engaged in the violation of human rights,
of international human rights, and therefore is liable to an individual that has been harmed.
So that was Unicar, you know, individuals from Myanmar. Shell, it was the, and Weaver,
it was the family of Kenzawa Weaver and some other family members of others that have been killed
with him and so on. And courts have really, there's been a huge, you know, it's not, I'm not,
it's, I think, I think there are over 120, over 150, there's some data, there have been really
many, many cases of that kind that have been filed. They've been lingering on for a long time
and have been relatively unsuccessful, one has to say. So I think Shell Weaver case settled in 2008
in 2009. And after, I think it was filed in 1992. So after, I don't know, yeah, over,
clearly around 15, more than 15 years, no, and it settled for, I think, 5 million US dollars,
which again, you know, it's not too much, given the money that has to go into the litigation also
on the side of the claimants, right? So that anyways, the Kyobo decision, and then my,
when I was preparing, I could, yeah, I think it's not the most recent one. There's one more
decision, which I couldn't think of then. And the Supreme Court has drastically limited
the applicability. It's not possible anymore to sue any company for any rights violation. It's
very much restricted now to US territories. And the recent litigation, one is again for
forced child labor in Cote d'Ivoire has also been dismissed. So I would say the ATCA
is not a very viable tool. And very differently is the development that was started in the 1990s
in the UK, where lawyers have been using very normal tort law, civil compensation tort law,
and the UK law to do pretty much the same as in the US. So the first cases were about
asbestos miners from South Africa who contracted asbestos, who could not bring their claim against
their direct employer anymore because the employer was bankrupt and didn't have any money. And so they
went against the headquarters based in the UK. So there's been a number of litigation cases,
one among them which has been setting the first precedent was the Chandler versus Cape case,
the way it actually says, okay, it's possible. And they've started to create some standards of when
is a parent company responsible? When does it have its own duty of care towards violations that
actually happen in an independent subsidiary? So that's sort of the spinning beginning of this
idea. Well, despite the fact that in general, the subsidiary is only responsible for its own
liabilities and parent companies are responsible not for the liabilities of its subsidiary,
but that was one of the first cases. Now this litigation has been really been, has had really
breakthrough decisions by the UK Supreme Court in the Vedanta case and in the Okbapi case.
In I think Vedanta was late 2019 and Okbapi in 2021. And there, the UK Supreme Court really
established this notion, yes, parent companies bear their own responsibility, which can make
them liable under civil law for compensation with regards to almost every subsidiary in the,
or every subsidiary in the corporate group under a certain set of circumstances. And those
circumstances do evolve around control and foreseeability of the harm. So control, they say,
well, what is sufficient? And that's, I know, Babi is very clear on this, which is very, I think,
yeah, it's very important and very progressive. They say it is enough to have a policy that the
the group, the headquarters installs a human rights policy for any policy that is covering
the whole corporate group. That means it assumes responsibility for violations that occur in the
subsidiaries and are permitted by the subsidiaries. So they say it's internal policies and external
policies. So CSR policies become a measurement for liability of companies.
And then there's also been growing litigation from 2010, I would say, onwards in continental Europe.
So one is, and other regions in the world, Ecuador is not continental Europe. So that is
the Netherlands, again, also Shell litigation has been quite prominent there. I think there's an
important case, also litigated in civil courts against Chevron in Ecuador, which is actually a
home host state, so-called host state case. And then you have the first case in Germany that tried
to do this, which is the Ali Enterprises or KIK case in Germany, in which I've also been involved.
Now, I would say a new development in civil litigation in our cases that can be now brought
under those human rights due diligence laws. So the first of its kind is the French
law de vigie laws. And that it has been legislated, I think, in 2017, but cases have only been
possible to bring, I think, since 2020. And that sort of, I think it is too early to determine
how and where that field of law is going to. But in principle, the French law opens the route to
civil courts and to also ask for compensation in a case where a human rights obligation that was
created by that law is being violated. So that's a difference, also again, to the UK system,
because in the UK, it's been the courts that established this.
And so in the UK, it's been the courts establishing those parameters. And so they are very much also
much more abstract than in the French law. But the French law itself creates this
similar human rights obligations. And we actually also now have a law in Germany,
which does not open the route for civil litigation. That's why I'm not mentioning it. So let's see
if there is someone left. So for those who are not super familiar with civil litigation,
I've been trying to make the very, it's a bit, yeah, probably very broad, very, very general.
But in general, I think what needs to be proved in court is that there's a harm that has occurred.
And that's the tricky thing. So in the UK courts, they never talk about human rights violations.
They always talk about personal injuries. So they talk about health violations,
right to life, like, you know, killing, so a violation of the right to life, but life
and property. Those are the terms that are used in tort law and civil tort law. Now, you know,
that means you may look at human rights violation, massive pollution in the Niger Delta is violating
the right to, you know, food, because crops are destroyed, right to water, to clean water,
right to clean air. That is not in itself difficult to litigate. But what you can claim is if someone
has been getting sick from living in that environment, if someone has been constantly,
yeah, intoxicated by certain company exercise, then you can claim your human rights violation,
your individual personal injury. That's a trick. So you need to prove a harm, then there must be
an action that caused that harm. And you need to prove that there's a causation between the two.
No, so that's, you know, so you need to say, okay, shell had major oil spill on that area,
a villager, a Mr. Okwapi, you know, has been injured in his health and, you know, has lost,
I don't know, his, probably his, his man, the soil of his, his land that he owned was destroyed.
Therefore, now he can claim and then you need to say, well, it was this harm was caused by shell.
Problem is company structures are very complex. And a lot of times it that is already difficult
to say if it really was shell or was it a, and even if it's a Nigerian subsidy, very who in the
Nigerian subsidy was it, was it not someone external who's responsible for ensuring that oil
spills don't happen. And then, and then if you're not going against the direct company, but against
a parent company, then the question of duties of care come in. So what are the challenges of those
kind of cases? So one is, I would say, and not legal challenge. I would call that the
pre-legal assumptions. And I've had very interesting discussions with my colleagues
from the UK and also from the Netherlands and France, no, and we've been thinking like, so why,
you know, and we've been talking, so what made your litigation successful? So how come that you,
so what, a, one cannot forget that they've been mitigating those cases for 25 years.
So already, but they also said, well, in 25 years ago, when we came into the court,
the judge would ask me, so what are you doing here? What am I supposed to do with the claim
by South African minor? I don't care. You know, what, what is he doing in my courtroom?
And they clearly say that nowadays for judges in the UK, it's completely understandable why
such a claim would come. And that is not because they only the legal theories have changed, but
this is really because they understand that it actually, those kinds of cases make sense.
And I think that is, you know, you see it to my opinion, you see the similar dynamic in
France when it comes to criminal procedures. I think that prosecutors somehow get this idea.
Oh, it could actually be that, you know, also company officials can be criminals,
not only when it comes to rivalry, but probably also to something, you know, that one could,
I think in Germany, we, we still need, we still have a way to go. I think the poor judge in the
KK's felt very, very unfairly treated by having to deal with such a case and so complicated.
And he just said like, how am I going to, you know, assess the facts and, you know,
go into the device of now, so he felt this is a complete, an absolute
zumutung for him. So, and I think that is not so much about the law, but more about,
you know, assumptions that we make. Combined with a lack of expertise, obviously,
corporate structures are complex. You know, trans, understanding transnational business
relationships is complex and not necessarily what civil judges in regional courts normally do.
Corruption is an issue, which I would assume, my assumption would be it's not, not a problem
in Germany or in the UK, but if you think this more through the lens of litigation in,
in the production countries, then corruption is an issue. Another challenge is
the choice of the defendant. As I said, you know, you potentially, you may have different,
so who is the right parent company in complex parent and complex company structures,
it's difficult to choose the right defendant. I know there's litigation on the Romadinho
downbreak in Brazil, and there are, I think there are three civil litigations currently pending.
And I know that at least at some point in the litigation, I really believe that these two of
those claims had the wrong defendant, because the company structure of the TÜV is very complex,
no? But so obviously it's, that is only, but then, you know, also there was a strategic
decision to make, do I go against the headquarters? Is it more, is it better to go to, you know,
against a subsidiary or, you know, do I rather go against audit and company?
Exactly. So yeah, those are all the options that you would have of choosing the defendant. And
obviously also the intermediaries. Yeah. Especially in the textile industry, you have a lot of
purchasing practices where there are intermediaries involved that no one actually knows about. And the
question is, would we want to sue them instead of Aldi or Lidl or so? Challenges in material law
generally is about the attribution of responsibility. We've been talking about this. So
that's the whole question about, is there a duty of care? Do I, as a headquarters manager, have to
take care that miners in our asbestos mine are protected sufficiently or can I leave that to
the local management? As I said, until recently, you know, I think the UK has been really a
breakthrough. They've established that for UK law and potentially this will have quite some
ripple effects for other jurisdictions in Europe. But let's see. But in general, also until very
recently, the concept of human rights due diligence, which has been discussed under the UN
Guided Principles, also was quite unclear. Does that actually translate into civil law?
Now with the litigation against Shell on the climate case decided last summer, that changes
because they easily say, oh yeah, duty of care, take the UN Guiding Principles and that establishes
the duty of care. So that's the first decision, but I would still say that's a bit unclear how
this goes. And yes, under the French law, so if you have a human rights due diligence law that
gives civil litigation, obviously then you have clarified, at least on paper, the standard,
what it means in application is still there. Procedural law, so obviously in civil law,
it's always the cost of litigation. That's a big thing in the UK. Yeah, it's
astronomic, like the costs are astronomical, they're very high. Again, the chances if you
win a case, you are the cost that you can recover all your costs and the damage you will receive is
also extremely high. So that makes it actually the litigation can make it profitable and interesting
for commercial law firms. It's the opposite in Germany. German cost system is very clearly
regulated, makes the cost of litigation comparatively overseable. Still for a Nigerian farmer, I don't know,
calculating 10,000, 15,000 court costs, euros of court costs is still something they cannot afford
principally. Anyways, but not compared to the UK. Downside to it is the damages you will receive in
German courts are so low, a lawyer can only starve on it. So the effort that needs to be put into
such a case will never pay. So you won't recover through the fee system and you cannot take it from
from the damages even if you win. That's also prohibited by law. And again, if the kick claimants
had won, in total they would have gotten 120,000 euros. And so if the lawyer recovers, I mean,
you can't take too much of those 120,000 euros and then, you know, so it really doesn't pay. So it
basically means that there must be provo and a practice, but it also means it will hardly ever
be the case until something very innovative happens that there is a corporate, like corporate law.
No, law firms that are not corporate law firms, but the personal injury law firms can actually
do this as a business strategy, go into business human rights cases, as you can see what the UK
has happened in the UK. Yeah, then in the UK, it is possible to recover if you win all the costs
that have been incurring in terms of free procedural costs, all the travels, you know, the research
you had to do, meeting the clients back and forth, unthinkable injury. Then there's a question of
group claims or class actions, class actions, something that can be done in the UK, in the US,
in the UK you have group claims. So it is possible to say, okay, we have a group, a very defined group
of, let's say 300 farmers, and they can all bring their claim and this can all be joined in one
lawsuit and, but they, you know, but they can only be represented by one lawyer. And so it's basically
treated as one claim, which makes those cases more manageable. In Germany, that is also procedurally
more difficult to do. Statute of limitations are a problem in civil law. So in South Asia,
the statute of limitation in torts, which we painfully experienced in the Kitt case is one year or
two years. There are exceptions to it. And it's also only an unfortunate event of history that
Pakistan, Bangladesh and India still have the colonial statute of limitations act of 1908,
while for example, Nigeria has adopted the, also the colonial law, but of 1927 or so. So they
they adopted the revised versions of those colonial laws and in South Asia, no one thought of it,
apparently. Plus, yeah, then again, this problem is then also becomes a problem of expert opinion
on law. So I really believe that there are exceptions in that law of 1908,
when the statute of limitation is interrupted. And from everything I've heard from people,
I talked to that do are litigating in Pakistani courts, they say Pakistani
courts don't care about statute of limitations, they apply them very flexibly. But we didn't get
any legal experts to exactly write that, right? So that, which again, is the question, you know,
do you have enough money? Do you have enough resources? I don't know. Or do we actually find
someone who's willing? My assumption is, I don't know, I never found someone in Pakistan who was
willing to put him or herself out there. But anyways, it's a big mystery. So we never were
able to prove this question of statute of limitations. Yeah, jurisdiction can be an issue,
which court can hear a case. And then obviously, another challenge is the vulnerable and precarious
situation of the claimants. So that's also something, you know, when you are very busy
with all the technicalities of this litigation, one can still not forget that usually you're
working with claimants that are facing security risks on the ground. Due to their precarious
situation, fact finding and securing evidence is much more difficult than in other cases. So,
you know, securing evidence in rural areas in Ghana is more difficult than securing evidence on a car
crash here in Nuremberg or something. And then to some extent, if we want to take this bit more
philosophical, there's a question of, you know, is monetary compensation is such the adequate
response to serious harms that people have occurred? And I think that's, that is quite a debate.
Yeah, I don't think it makes, maybe in the discussion, we can go back to this, because
I think there are different views also from communities or persons negatively affected by
companies. I have heard very different perspectives on this. But again, the question of, you know, how,
if there's money obtained, how is it going to be distributed among the group of claimants,
which is by far not an easy task necessarily. Yes, I think, I think I will leave it at that.
We could, I have some slides, but I think I'll stop that we could discuss in the, in the discussion,
we can talk about some of the strategic goals of litigation of this kind of human rights litigation,
but also probably in particular civil litigation. I very quickly would want to say that I generally
differentiate between the individuals who are affected between the local actors and organizations
and organizations that are supporting individuals and the aspects of the transnational and the
strategic goals one would want to probably reach at the transnational international.
Um, yes. So thank you for your attention.