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Home Posts tagged "UK Supreme Court"

How a Commercial Bond Dispute in the UK Supreme Court Invokes International Law

Published on December 30, 2019        Author: 

 

While the heads of state for Ukraine, Russia, France and Germany met in Paris on December 9 to discuss terms of peace, across the English Channel in London the UK Supreme Court heard arguments concerning Russia’s suit for repayment on a US$3 billion loan to the government of Ukraine. The deal was made in December 2013 shortly after then President Viktor Yanukovich pulled out of an association agreement with the EU, and months before Russia annexed Crimea and invaded Eastern Ukraine. When the principal and final interest installment came due in December 2015, Ukraine refused to make payment.

The Law Debenture Trust Corporation p.l.c. v. Ukraine is a matter of English law because the notes, issued in the form of Eurobonds tradeable on the Irish stock exchange, were constituted by a trust deed negotiated by the parties to be governed by English law, with English courts having exclusive jurisdiction. Law Debenture is trustee of the notes, whose sole subscriber is the Russian Federation. But beyond being just another commercial bond dispute, this case is a study in how international law is woven into the fabric of national laws. The court’s ruling may have significant consequences in reaffirming faith in the status of public international law, sending a message to all nations seeking the recognition and benefits of a liberal rules-based order.

Of Ukraine’s myriad defenses to the claim, the one which survived summary judgment at the appellate level was the English common law defense of duress. As the Court of Appeal points out at 159, “English law provides that a contract made as a result of illegitimate pressure will not be enforceable.” In this case, Ukraine alleges that Russia applied illegitimate economic and political pressure to Ukraine in 2013, including threats of use of force, to deter the administration from signing an association agreement with the European Union and compel Ukraine to accept Russian financial support instead. Russia argues that Ukraine cannot make out its defense because it has no domestic foothold, and because doing so would require investigation into Russia’s dealings on an international plane, something the English court should not endeavor. Read the rest of this entry…

 

Corporate Responsibility for Human Rights Violations: UK Supreme Court Allows Zambian Communities to Pursue Civil Suit Against UK Domiciled Parent Company

Published on April 24, 2019        Author:  and

On 10 April 2019, the UK Supreme Court held unanimously, in Vedanta Resources PLC and another v Lungowe and others [2019] UKSC 20, that Vedanta Resources, a UK company, arguably owes a duty of care to villagers living in the vicinity of its Zambian subsidiary, Konkola Copper Mines Plc (KCM). Ruling on a procedural appeal, by upholding the jurisdiction of the UK courts, this landmark judgment allows the claimants, 1826 Zambian villagers, to pursue their case against both the parent and subsidiary companies in the UK. The core legal question, whether a parent company can be held accountable under civil law for human rights violations and environmental harm caused by its foreign subsidiary, is central to the ability of many victims of corporate human rights violations worldwide to access justice. The case provides an example of how public international law principles (such as those on corporate responsibility espoused in the United Nations Guiding Principles on Business and Human Rights (UNGPs)) can be realised and achieved though domestic civil law.

Readers may be aware that three inter-related pillars underpin the UNGPs: first, the State duty to protect human rights; second, the corporate responsibility to respect human rights; and third, access to remedy. Relevantly, Guiding Principle 25, in Pillar III, reminds States to “take appropriate steps to ensure” that those affected by business-related human rights abuses within their territory and/or jurisdiction “have access to an effective remedy”. Principle 26 further identifies the need for States to ensure the effectiveness of these remedies, including by removing barriers that can lead to a denial to access to justice.

Two of the intervenors in this case (Corporate Responsibility Coalition Ltd (CORE) and the International Commission of Jurists) wrote a joint submission that sought to support the notion that Vedanta arguably owed a duty of care to the affected communities with reference to international standards and jurisprudence regarding corporate responsibility in relation to human rights and environmental protections. They pointed out that the UK Government explicitly:

stresses the importance of victims being able to secure access to justice in respect of wrongdoing by UK-based business enterprises both domestically and overseas, and indicates that such persons should have access to remedies through the judicial mechanisms of the UK itself.”

In particular, the Government publication Good Business: Implementing the UN Guiding Principles on Business and Human Rights (through which the UK advocates for the implementation of the UNGPs) notes that civil law claims are one remedial avenue in relation to human rights abuses committed overseas by corporations. The interveners further refer to a number of other international standards that aim to increase corporate accountability for human rights and environmental abuses. Robert McCorquodale, counsel representing the intervention of in the case, notes here of his disappointment that the Court did not refer to these international standards in its decision. But even without explicit reference, this case can surely be viewed as a step towards implementing the UNGPs with respect to access to justice, through its removal of obstacles for redress. The specifics of the court’s consideration of access to justice are canvassed in the sections below. Read the rest of this entry…

Filed under: Human Rights
 

Wikileaks Documents are Admissible in a Domestic Court

Published on February 21, 2018        Author: 

On 8 February 2017, the UK Supreme Court held unanimously that a Wikileaks document is admissible in a domestic court. The Wikileaks document in issue purported to be a copy of a diplomatic cable from the US Embassy in London summarising a meeting between US and British officials. In reaching their decision, the Court had to interpret the Vienna Convention on Diplomatic Relations 1961, which provides that a document and archive of a diplomatic mission is “inviolable”. The importance of this case, the lack of any strong precedent anywhere in the world, and its broad ramifications, led the Court, unusually, to sit as a 7 member panel.

The case, R (Bancoult) v. the Secretary of State for Foreign and Commonwealth Affairs (Bancoult 3), was part of a series of cases brought by representatives of Chagossians, who were removed by the UK government from the Chagos Islands (a British colony) in the 1970s. A factor in their removal was the leasing of the main island (Diego Garcia) to the US government for a military base. Several actions by successive British governments have prevented the Chagossians from returning to the Chagos Islands and these actions have, to date, eventually been held to be lawful by the highest UK courts. The publication of the Wikileaks document, which was then published in The Guardian and The Telegraph, arguably brought into question the legality of one of these actions: the decision in 2010 by the then Secretary of State for Foreign and Commonwealth Affairs, David Miliband, to impose a Marine Protected Area (MPA) around the Chagos Islands.

The claim against the government by the Appellant was that this decision to impose an MPA was undertaken not for environmental purposes, but to prevent the return of the Chagossians, which was an improper purpose. Read the rest of this entry…

Filed under: EJIL Analysis, Treaty Law