Procès contre Vedanta Resources (contamination de l'eau en Zambie)

Zambia MineEn septembre 2015, un groupe de villageois zambiens a intenté un procès contre Vedanta Resources auprès d'un tribunal du Royaume-Uni en raison de la pollution d'eau causée par les opérations de sa filiale dans des mines de cuivre. Ils prétendent que la pollution de l'eau provenant de la mine de Nchanga a causé des dommages à leurs terres et à leurs moyens de subsistance.

Le 27 mai 2016, un juge de la Haute cour d'Angleterre indiquait que le procès intenté contre Vedanta Resources pouvait se poursuivre. En juillet 2016, les entreprises ont fait appel de la décision en remettant en cause la compétence du tribunal anglais. Le 13 octobre 2017, la Cour d'appeal a rejeté le recours des entreprises et a autorisé les villageois à les poursuivre devant le tribunaux anglais.

 

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Article
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Auteur: Gabrielle Holly, Omnia Strategy LLP

Gabrielle Holly at Omnia Strategy LLP analyses the UK Supreme Court's landmark decision.

This morning, the Supreme Court delivered its much anticipated judgment in Vedanta Resources PLC and anor v Lungowe v and ors. In a unanimous decision, the court found that a claim brought by a group of Zambian villagers against UK-based Vedanta Resources Plc and its Zambian subsidiary, Konkola Copper Mines (KCM), could proceed in the UK.

The duty of care

The claimants in Vedanta and other similar cases (Okpabi and ors v Royal Dutch Shell plc and anor and AAA and ors v Unilever and anor) have all relied on the case of Chandler v Cape Plc to argue that a UK parent company could owe a duty of care to those affected by acts of a foreign subsidiary.

Chandler set out a series of factors which established that the parent company in that case owed a duty of care to the employees of its subsidiary. However, though tried and tested, these factors have not been an easy fit for subsequent claims.

In a significant step, the Supreme Court in Vedanta confirmed that the Chandler factors are not the only path available to prospective claimants. It found that the relevant duty in parent company cases can be established by reference to basic tort principles rather than the “straitjacket derived from the Chandler case” (at [60])...

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Article
11 April 2019

La Cour suprême du Royaume-Uni autorise des villageois zambiens à poursuivre en justice Vedanta pour pollution

Auteur: La Fiva

« Les Zambiens peuvent engager une action en justice pour pollution dans les mines devant les tribunaux anglais », 10 avril 2019 

Deux mille villageois zambiens qui affirment que leur vie a été détruite par un ruissellement toxique provenant de la deuxième plus grande mine à ciel ouvert au monde ont obtenu le droit de faire une réclamation devant les tribunaux anglais.

Dans un arrêt historique, la Cour suprême a jugé que le conglomérat minier Vedanta Resources, basé à Londres, et sa filiale zambienne Konkola Copper Mines (KCM) pouvaient être tenus pour responsables par les juges anglais, malgré les arguments des sociétés selon lesquels ils devaient se défendre eux-mêmes en Zambie.

La décision ouvre la porte à toute une série d'autres actions en justice à l'encontre de sociétés mères basées au Royaume-Uni pour les actions de leurs filiales à l'étranger…

Les demandeurs d'asile ont d'abord comparu devant un tribunal de Londres en 2015, alléguant leur négligence et leur violation de l'obligation légale de rejet d'effluents, mais avant de pouvoir procéder, Vedanta a contesté la compétence des tribunaux anglais…

Un élément clé de l'affaire concernait les affirmations dans la littérature d'entreprise publiée par Vedanta – une entreprise d'une valeur de 10 milliards £ – selon lesquelles elle assumerait la responsabilité des normes environnementales et de durabilité dans l'ensemble du groupe. Il avait accepté de se poursuivre devant les tribunaux zambiens aux côtés de KCM, mais les juges de la Cour suprême ont souscrit à l'argument des requérants selon lequel ils risquaient de ne pas avoir accès à la justice en Zambie…

La plainte contre Vedanta et KCM peut maintenant être traitée devant la haute cour.

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Auteur: Leigh Day

The claimants allege that as a result of the toxic effluent discharge from the Nchanga Copper Mine which is run by KCM they have suffered loss of livelihoods through damage to the land and waterways and health problems through having to consume and use polluted water. Now that jurisdiction has been determined their claims will be heard in the High Court at a date to be determined. As part of the judgment today the Supreme Court also ruled that companies can be held to account for the commitments they make publicly regarding their subsidiaries and their commitments to the communities they serve...

The claimants, represented by law firm Leigh Day, have been fighting for four years to have their case heard in the English courts. They argued that they would not be able to achieve justice in the Zambian courts due to the lack of funding available for claimants in such claims and the lack of legal representatives with the necessary qualifications and experience to properly bring the case. The Supreme Court agreed with these arguments. The court also determined that there is a triable issue between the claimants and Vedanta, as well as KCM, and that Vedanta arguably owes a duty of care to the claimants as the parent company of KCM. 

Oliver Holland, solicitor at law firm Leigh Day representing the Zambians, said:

“After four years fighting for this case to be heard by the English courts we are delighted that our clients’ case can now go ahead in the UK where there is a real opportunity for justice. “Our clients argued that as the UK-based parent company of KCM, Vedanta also had a duty of care towards them and should be held responsible for the damage they allege has been caused by the mine. Indeed in Vedanta’s own published materials the company claims to have control over the mine and to have responsibility for the proper standards of environmental control across its subsidiaries. The court has ruled today that Vedanta cannot merely pay lip service to these statements and must be held accountable for them.”

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Auteur: Jane Croft, Financial Times (UK)

Thousands of Zambian villagers can bring a legal challenge in the English courts against mining company Vedanta over alleged pollution in Zambia, the UK’s highest court ruled on Wednesday. The Supreme Court said that the lawsuit brought by 1,800 Zambian villagers can be heard in London despite arguments by Vedanta that the case should be tried by the Zambian courts. It ruled that the lawsuit could proceed in England because the claimants, who are all living in poverty, would struggle to access justice in Zambia and the country does not permit “no win no fee” arrangements for claimants to pay legal fees...

The ruling is significant because it paves the way for more environmental claims to be brought in London against large multi nationals with global operations — particularly from claimants living in poorer countries where there is a difficulty in accessing legal funding. The ruling also indicates that companies have a duty of care to third parties for the commitments they make publicly regarding their subsidiaries...

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Auteur: CORE Coalition & Internatinal Commission of Jurists (ICJ)

Today, the ICJ and the CORE Coalition welcomed the decision of the United Kingdom Supreme Court to allow a complaint to proceed against Vedanta Resources Plc and its Zambian subsidiary Konkola Copper Mines (KCM), alleging serious harm from extraction activities in Zambia.

The damage to health and livelihood was allegedly caused to local communities living in the Chingola District by the discharge of toxic waste from the Nchanga Mine operated by KCM.

The companies challenged the jurisdiction of the UK courts to hear the complaint for negligence and breach of statutory duty, saying there was no case against them arguable in a UK court and, in relation to KCM, that Zambia was the proper forum where any case would have to be heard.

The judgment, confirming the decision of lower courts, dismissed the appeal by the companies, allowing the case to now proceed to trial on the merits. The ICJ and CORE Coalition acted as interveners in the case...

“The ruling makes clear that, from available evidence at this stage, it is arguable in trial that a parent company like Vendanta owes a duty of care in relation to people living in the vicinity of their subsidiaries and this decision will have important implications to similar cases concerning parent company duties around the world,” said Lopez [of the ICJ].

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Auteur: UK Supreme Court

[Full text of the judgment allowing the case to be heard in English courts]

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Auteur: Meg Weddle, International Bar Association

An international mining company has appealed to the UK Supreme Court in a pollution case brought by over 1,800 Zambian villagers. The Court’s upcoming decision on whether the case against Vedanta Resources and its subsidiary, Konkola Copper Mines (KCM), can proceed to trial in the UK could help clarify the law on parent company liability. It could also have major repercussions for multinationals with extractive operations abroad.

The case centres on whether a parent company can owe a duty to third parties affected by its subsidiaries’ activities. In January 2019, the Supreme Court heard arguments from both Vedanta and the Zambian claimants regarding the proper jurisdiction for the trial...

..[C]onflicting decisions at the Court of Appeal in two similar cases, involving Royal Dutch Shell and Unilever, have highlighted a lack of clarity in the law regarding parent company liability. ‘If the Supreme Court finds in favour of the claimants, there would be a very strong argument for Parliament to clarify in statute what the actual expectations of company practice are,’ says Marilyn Croser, Director of CORE, a leading civil society coalition on corporate accountability...

Kevin O’Callaghan, Co-Chair of the IBA’s Business Human Rights Committee, says companies operating extra-nationally will want to pay close attention to the outcome of this case. ‘These kinds of cases are opening up people’s eyes to the potential consequences of the gap between what [a company] says on its website and what they’re doing on the ground. Companies need to be aware of the consequence of the statements they make in terms of corporate social responsibility, or business and human rights-related initiatives.’...

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Auteur: Louise Eldridge, CORE Coalition, on Africa Is A Country

"The Zambian farmers who are suing a mining company in a British court", 15 Feb 2019

…In 2004, London-listed Vedanta Resources plc. acquired a 51% interest in Konkola Copper Mines (KCM), one of the most important Zambian state companies sold off to private investors. Vedanta now owns 80% of KCM…[which] is now one of Africa’s largest integrated copper producers with mines at three sites.

The UK case against Vedanta was brought in 2015 by 1,826 people (“Lungowe and others”)…[fighting] for justice for…devastation to their land and livelihoods through water pollution from KCM’s Nchanga copper mine.

In 2016, the UK High Court rejected Vedanta’s argument that the farmers should not be permitted to bring their case in London. The judge found that, despite recent reforms to the Zambian justice system, the claimants would not obtain justice if they pursued a case against KCM in Zambia. Two years later, following a further appeal from Vedanta, the Court of Appeal upheld the High Court ruling. Vedanta appealed again and on 15-16 January the case was heard at the Supreme Court.

The outcome of the Vedanta hearing hangs on whether the company arguably owes a duty of care to the Zambian claimants [when] in 2012 the Court of Appeal held that, under certain circumstances, a parent company could owe a legal duty of care to employees of its subsidiaries.

The claimants point to company documents…that they say show the parent company exercised an unusual level of control, direction and knowledge over KCM and should therefore be held legally responsible for the damage arising from the pollution. Vedanta’s lawyers, on the other hand, argue that the company’s UK headquarters is a separate legal entity with insufficient control over the Zambian subsidiary to be held liable…

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Auteur: Business & Human Rights Burma

The claim against Vedanta, under review at the UK Supreme Court, will decide whether a UK-incorporated parent company has a duty of care, and therefore liability in tort law for negligence, to people affected by the operations of its subsidiary, Konkola Copper Mines (KCM), in Zambia…

Vedanta and KCM’s lawyers do not dispute the damage that has been done but have appealed to the Supreme Court arguing that their corporate structure does not give them enough control over KCM to give rise to this duty of care and that, in any case, the correct forum for the claims against KCM is the Zambian courts…

Essentially, the case must balance the interests of access to justice for victims of environmental and human rights law violations resulting in personal and property damage with opening the floodgates to claims against the subsidiaries of UK companies around the world in British courts…

In order for the villagers to make a claim against Vedanta in tort law, it must be shown that a duty of care exists, that the duty has been negligently breached, and that the breach has resulted in the damages…

The UK Supreme Court must know whether the duty of care in this situation extends extraterritorially, and if not, whether it is fair, just and reasonable to create a new duty of care…

So, what is the right forum to hear this type of claim? In English law, the appropriate forum is the one in which the case may most suitably be tried in the interests of all the parties and the ends of justice…

Vedanta’s lawyers sought to demonstrate that access to justice is obtainable in Zambian courts, citing various civil claims and reforms to the judiciary…

[The decision will have ramifications for access to justice for business-human rights and environmental abuses in all developing states, including Myanmar, where access to justice against subsidiary companies is limited and a potential claim could be made against the parent company in its home state...]

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Auteur: Lusakatimes.com (Zambia)

Lawyers for Vedanta Resources told England’s Supreme Court on Tuesday that [the] case…should be heard in Zambia not London.

India-listed Vedanta, which delisted from London last year but maintains a legal base in Britain, is appealing a lower court ruling that a case in which villagers alleged their land was polluted by a Vedanta unit could be heard in England…

Vedanta’s legal team argued that Zambia was the “natural forum” for the case and said the parent company did not control operations in Zambia, which were governed by Zambian law…

London law firm Leigh Day has argued that the English courts were the only route for the villagers to achieve justice. 

Vedanta’s barrister Charles Gibson QC…said that Vedanta only agreed to provide KCM advisory services as an independent contractor and that its management agreement showed Vedanta did not have capacity to control KCM…

Vedanta’s case will also likely be watched by miner BHP, which has said it will fight an English suit by Brazilians seeking damages over an environmental disaster caused when the Fundao dam that stored mining waste burst in 2015.

Outside the court, action group Foil Vedanta was among those protesting against what they allege is pollution by Vedanta 

The case continues and A verdict is expected in April.

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