Overcoming unequal access to information - frequent barrier to remedy for victims of corporate abuse

Elodie Aba, Business & Human Rights Resource Centre

Esther Kiobel sued Shell in US court in 2002, alleging it was complicit in the execution of her husband, an Ogoni activist who campaigned against harms from oil pollution in Nigeria; she said that she filed the case “to hold Shell responsible for the alleged crimes committed against [her and her family] and the rest of humanity.”  In April 2013, the US Supreme Court dismissed the case.  Mrs Kiobel is now turning to courts in the Netherlands, where Shell is headquartered.  Dutch courts require plaintiffs to present almost all their evidence at the start of the case.  Legal standards like this can keep some plaintiffs from even seeking a remedy by requiring that they have developed extensive evidence before they file their case.  To meet this high bar, Mrs Kiobel used the US Foreign Legal Assistance (FLA) Statute in 2016 to request important documents from the earlier US case held by Shell’s US lawyers; this evidence would support the Dutch lawsuit she plans to file.  The FLA Statute enables people involved in a lawsuit in another country’s courts to ask US courts to compel testimonies and documents from companies or people in the US.  They therefore benefit from the US's broad discovery rules and procedures.  In January 2017, a court granted Mrs Kiobel’s request, but Shell’s lawyers have appealed.

Access to information is a vital right for victims and a crucial tool for corporate accountability.  Currently, inequality in access to information reinforces the existing imbalance of power between victims and companies, denying to victims information required to file a case or prove their claims.  For instance, they do not know what specific product a company has discharged in polluting their environment, or what authority a parent company exercises over its subsidiaries – whereas companies have this knowledge, and use it when it suits them.  Measures that enable victims of human rights abuse and their families, like Mrs Kiobel, to access such information enable them to show whether and how a company caused the harm they suffered, which can make the difference between success and failure in pursuing legal remedies.  “Disclosure is a relevant right that helps alleviate the imbalance of power between affected communities or disadvantaged groups who defend their rights against powerful corporations. All jurisdictions need to offer disclosure rights”, says Claudia Müller-Hoff of the European Center for Constitutional and Human Rights (ECCHR). 

There is powerful evidence of the need for measures like the FLA.  In many cases, victims of human rights abuse are unable to investigate and pursue legal claims due to lack of access to information.  According to the ECCHR, the Peruvian subsidiary of a Swiss mining company allegedly contaminated water and soil with heavy metals, and thus caused severe health risks for the local population.  The parent company might be liable under Swiss law, if a lack of due monitoring, supervision and intervention could be shown.  Accessing information from the parent company in Switzerland would have helped the Peruvian victims and their advocates to make a full, responsible assessment of possible actions, including whether legal claims against the company could be sustained with evidence.  Without this information, it is impossible for victims, their advocates, or an impartial body to assess whether Swiss law and courts could provide a remedy.  In Indonesia, lawyers at a workshop that we organised in September 2016 on the impacts of toxic transboundary haze from fires to clear land for plantations told us that they cannot obtain vital information, including maps that show plantation boundaries.  This information is essential to bring a strong case in haze-related claims by establishing who owns the land and their liability for the fires and their impacts. 

Conversely, granting access to evidence can rectify the imbalance of power and information faced by victims.  In another lawsuit against Shell in the Netherlands regarding Nigeria, this one filed by farmers over oil pollution, the court ruled in December 2015 that Shell must provide the plaintiffs internal company documents essential to the case – a first in Dutch legal history, according to the farmers’ lawyer.  In lawsuits in Canada against Hudbay Minerals over rapes and shootings in Guatemala, in 2015, an Ontario court ordered the company to disclose internal information about its subsidiaries and corporate policies.  The victims’ lawyer, Cory Wanless, said that the documents could “show that the company is in fact and in law responsible, here in Canada, for the devastating events in Guatemala.”

Strong measures to help plaintiffs access information have also supported litigation in claims litigated in courts in the global South.  In support of a lawsuit in Nigerian court against Chevron over harms from gas flaring lawsuit, communities used the FLA Statute to obtain records of flaring’s environmental impacts from Chevron’s US offices.  The communities and Chevron settled the claims in 2016.

Given the global reach of multinationals, and to ensure that victims of abuse are able to access all necessary information to vindicate their rights, courts should ease access to information wherever a company holds it, following the examples of courts and laws in the US, Canada, and Netherlands.  Information sharing and international collaboration between courts is beneficial for all stakeholders because it facilitates resolution of disputes, as noted by the Office of the UN High Commissioner for Human Rights, in its recommendations to states in order to improve access to remedy (see Policy objective 18).  Stronger legislation similar to the US FLA Statute in a wide variety of jurisdictions would go a long way to rectifying the imbalances of information and power that victims of abuse face.