The relevance of the autonomous

jurisdictional rules of the Member States

• The jurisdictional rules of the Member State are varying
• Some of them allow bringing a claim against the
subsidiary of a company domiciled in that Member States,
while others not
Akpan v Shell (District Court of the Hague)
• A Hague District Court established its jurisdiction against Royal Dutch Shell, the parent company, and
its Nigerian subsidiary, Shell Petroleum Development Company, regarding the environmental damage
and the related patrimonial and non-patrimonial claims caused by the oil production activity of the
subsidiary
• Jurisdiction regarding Royal Dutch Shell was established under the Brussels I Regulation
• Jurisdiction regarding the subsidiary was grounded on Article 7 of the Dutch Civil Procedure Code that
states that if a Dutch court has jurisdiction with respect to one of the defendants, then it has also
jurisdiction regarding other defendants, provided that the rights of action against the different
defendants are connected with each other in such a way that a joint consideration is justified for
reasons of efficiency.
• Based on an increasing international trend that subsidiaries are summoned together with their parent
companies, jurisdiction for the subsidiary was forseeable
• The jurisdiction of Dutch courts court was also confirmed at second instance
Vedanta v Lungowe, UK Supreme Court [2019] UKSC 20

• KCM, a Zambian mining company owned by Vedanta and

Zambian government (the latter as a minority
shareholder). KCM and Vedanta were sued by Zambian
inhabitants before English courts because of the emission
of toxical material to waters that formed the fundamental
source of living of the local community
• Jurisdiction against Vedanta was based on Article 4
Brussels I Regulation
To establish jurisdiction against a foreign subsidiary together with the parent company, English
law requires:
i) that the claims against the anchor defendant involve a real issue to be tried;
ii) if so, that it is reasonable for the court to try that issue;
iii) that the foreign defendant is a necessary or proper party to the claims against the anchor
defendant;
iv) that the claims against the foreign defendant have a real prospect of success;
v) that, either, England is the proper place in which to bring the combined claims or that there is
a real risk that the claimants will not obtain substantial justice in the alternative foreign
jurisdiction, even if it would otherwise have been the proper place, or the convenient or natural
forum.
Real issue to be tried against Vedanta
• It was conceivable that sufficient level of intervention by Vedanta into the
operations of the mine could be demonstrated. This indicates an assumption
of responsibility by Vedanta for the control over the compliance with
environmental standards by its subsidiaries, and it implemented those
standards by training, monitoring and enforcement.
Proper forum
• England was not necessarily the proper place for litigation
• It was not accepted that there was a real risk that substantial justice could not
be obtained in Zambia
AAA v Unilever, Court of Appeal
• Unilever, the parent company and a Kenyan company
indirectly controlled by Unilever were sued for being
unable to protect their employees in a tea plantation in
Kenya from violent actions during an inter-tribal conflict.
• Can Unilever and the Kenyan subsidiary sued together
before an English court? Before the Court of Appeal, the
question was whether there was any properly arguable
case (see condition i) referred to in Vedanta).
• Intervention by the parent company into the matters of the subsidiary is
required
Imposition on duty of care on the parent in two cases:
1. Where the parent has in substance taken over the management of the
relevant activity of the subsidiary in place of the subsidiary’s own
management
2. Where the parent has given relevant advice to the subsidiary about how it
should manage a particular risk

• It was not proved that the Kenyan subsidiary received advice from Unilever. It
devised its own crisis management policy.
Okpabi v Shell, UK Supreme Court [2021] UKSC 3

• Court of Appeal declined jurisdiction against the Nigerian

subsidiary of Shell regarding the environmental damage caused
by the oil production activity of the subsidiary under the English
rules of procedure
• UKSC: There is a real issue to be tried against the parent
company as to its duty of care to find jurisdiction against a foreign
subsidiary
How to ensure greater access to justice?
Proposed solutions
Problem: jurisdiction of the courts of the EU Member States
over foreign subsidiaries depends on varying domestic
jurisdictional rules
Proposed solutions:
1. Forum necessitatis
2. Extension of the connected claim jurisdiction in the
Brussels I Regulation
3. Jurisdiction based on the presence of property
Forum necessitatis
• Independent ground of jurisdiction
• Forum necessitatis jurisdiction exists in some EU
regulations (Maintenance Regulation, art 7) and in some
domestic laws (Belgian PIL Act, art 11)
• European Commission, Brussels I recast proposal, not
adopted
Maintenance Regulation, art 7
Where no court of a Member State has jurisdiction [on
different grounds of jurisdiction set out in the Regulation],
the courts of a Member State may, on an exceptional basis,
hear the case if proceedings cannot reasonably be brought
or conducted or would be impossible in a third State with
which the dispute is closely connected.

The dispute must have a sufficient connection with the

Member State of the court seized.
Belgian PIL Act, art 11
Exceptional attribution of international jurisdiction
Notwithstanding the other provisions of the present statute,
the Belgian courts will exceptionally have jurisdiction when
the matter presents close connections with Belgium and
proceedings abroad seem impossible or when it would be
unreasonable to demand that the action be brought abroad.
(translation by Caroline Clijmans and Paul Torremans)
Forum necessitatis – European Commission,
Brussels I recast proposal
• Where no court of a Member State has jurisdiction under this Regulation, the
courts of a Member State may, on an exceptional basis, hear the case if the
right to a fair trial or the right to access to justice so requires, in particular:
(a) if proceedings cannot reasonably be brought or conducted or would be
impossible in a third State with which the dispute is closely connected; or
(b) if a judgment given on the claim in a third State would not be entitled to
recognition and enforcement in the Member State of the court seised under
the law of that State and such recognition and enforcement is necessary to
ensure that the rights of the claimant are satisfied;

and the dispute has a sufficient connection with the Member State of the
court seised.
Forum necessitatis
Advantages
• Promoting access to justice within the meaning of Article 6 ECHR
(„everyone is entitled to a fair and public hearing within a
reasonable time by an independent and impartial tribunal
established by law.”)
• Legal certainty and predictability
Questions
• Possibility and reasonability of proceedings in another state
• Sufficient connection with the court seized
Extension of the connected claim jurisdiction in the Brussels I Regulation

• Domicile in an EU Member States should not be a

prerequisite under Article 8(1) Brussels I Regulation
• Council of Europe, Human Rights and business –
Recommendation CM/Rec(2016)3 of the Committee of
Ministers to Member States (2016)
Member States should consider allowing their domestic courts to exercise
jurisdiction over civil claims concerning business related human rights abuses
against subsidiaries, wherever they are based, of business enterprises
domiciled within their jurisdiction if such claims are closely connected with civil
claims against the latter enterprises.
Jurisdiction based on the presence of property – European
Commission, Brussels I recast proposal

Where no court of a Member State has (…) , jurisdiction

shall lie with the courts of the Member State where property
belonging to the defendant is located, provided that
(a) the value of the property is not disproportionate to the
value of the claim; and
(b) the dispute has a sufficient connection with the
Member State of the court seised.
• The proposals to amend the Brussels I Regulation were
not adopted.
Will the courts of the Member States take over the role of
the US federal courts in terms of claims for human rights
violations?