In a disappointing judgment, the Court of Appeal (‘CA’) in England dismissed the case of AAA v Unilever in which victims of ethnic violence claimed that parent company, Unilever PLC (‘Unilever’), and its Kenyan subsidiary, Unilever Tea Kenya Ltd (‘Unilever Kenya’) were responsible for injuries they suffered on Unilever Kenya’s plantation during 2007’s post-election violence. Several aspects of this case and other similar cases (eg Lungowe v Vedanta and Okpabi v Shell) raise important questions from a business and human rights perspective. In this post, we will comment on the unreasonable burden of proof placed on claimants by the increased demands of English courts to show an arguable case.

 Background

The 2007 ethnic violence that affected the Unilever plantation followed an on-going pattern of post-election violence in Kenya. Given that many of the residents at the tea plantation were brought in from other regions, there was a heightened risk of ethnic violence affecting the workers. This risk was realized after the election resulting in serious injuries to 218 workers and their family members.

The crisis and risk management policy for the whole Unilever group is set by Unilever and subsidiaries’ compliance with it is monitored by the parent. Regional and national level crisis management policies are also established to implement the group wide policy. The Claimants allege that Unilever took steps to protect company assets and management housing, but neither company did anything to assess, plan for or respond to the risk to its employees, despite the fact that management had been informed about threats to workers of the Claimants’ ethnic group.

 The Decision

The companies challenged the High Court’s jurisdiction over the claim. For the case to continue, the court needed to find that the Claimants’ presented a good arguable case with a prospect of success at the merits stage. This required the claimants’ to show a prima facie case that Unilever owed a duty of care to the claimants. Without jurisdiction over UK-domiciled Unilever, the UK did not have jurisdiction over the claims between the Kenyan company and victims.

The English common law allows for the imposition of a duty of care where (1) the harm is foreseeable and (2) the parties’ “proximity” to one another suggests (3) it is fair, just and reasonable that the law should impose a duty upon one party for the benefit of the other. In previous cases, parent companies have been found to have a duty of care to the employees of their subsidiaries where (1) the two businesses are, in a relevant respect, the same, (2) the parent has, or ought to have, superior knowledge on relevant health and safety standards, (3) the parent company knew, or ought to have known that the subsidiary's system of work is unsafe; and (4) the parent knew or ought to have foreseen that the subsidiary or its employees would rely on its superior knowledge.

 The High Court judge dismissed the claim on lack of foreseeability but the CA upheld the dismissal while focusing on the lack of proximity. The CA concluded that there was insufficient evidence to demonstrate that Unilever dictated or advised upon the terms of Unilever Kenya’s crisis management plans.

Creating Inaccessible Remedies

The standard set by Court raises the threshold for a prima facie case before proceeding to trial. By requiring the Claimants to prove the scope and level of Unilever’s involvement in the Kenyan subsidiary’s risk management, the Court created an insurmountable burden of proof for victims. The public disclosures were insufficient for the Court. Yet, as the motion was raised at the jurisdictional phase, the company was not yet required to provide disclosures to the Claimants. As such, the public documents were all that the Claimants could access since, as Unilever did not dispute, the company did not cooperate with requests for certain documents [see paras 73 and 103 of the High Court judgment].

As such, Claimants are expected to procure evidence held by the parent company to prove the extent of the relationship between the parent and subsidiary before the court will order the parent to provide the evidence that addresses the extent of its relationship with the subsidiary. It’s a Gordian knot. And the court requires the more vulnerable party to untie it.

Complying with the UNGP

This level of proof effectively shields parent companies from any claim arising from subsidiary business. This appears contrary to the letter and spirit of the UN Guiding Principles on Business and Human Rights (‘UNGP’ or ‘Guiding Principles’), which requires states and businesses to ensure victims have access to adequate and effective remedies. Both Unilever and the UK have publicly endorsed the UNGP.

Under the UNGP, States should provide accessible and effective judicial remedies (Principle 26), and businesses should ensure victims can access remedies (Principle 29).

The Court found that the victims sought remedies in the UK courts due to a real risk that the claimants will not get substantial justice in Kenya. This suggests Kenya is not providing accessible remedies. But the Unilever judgment also suggests the UK has a more systematic failure. Based on the CA’s decision, claimants are now required to understand, explain and prove the relationship between parents and subsidiaries at the jurisdictional phase before they have access to crucial information on the relationship.

Thus, the UK maintains laws that allow for the evasion of responsibility and situations of impunity. Unilever actively relied on these laws instead of admitting their shortcomings and working to remediate them. This suggests that the promise of the UN Guiding Principles is still being undermined by the refusal of both states and businesses to faithfully implement their responsibilities.