In my contribution to the EAPIL online seminar discussing Ekatarina Aristova’s excellent Tort Litigation against Transnational Corporations: The Challenge of Jurisdiction in English Courts (OUP 2024), I flagged the discussion by Dr Aristova in Chapter 6 of the book, of one of the objections to jurisdiction exercised by ‘European’ or by extension courts in the Global North, in cases involving human rights and environmental abuse by business located in the Global South. That is the argument that such exercise of jurisdiction is a form of neocolonialism.
This same argument was used by counsel for defendants in Da Silva & Ors v Brazil Iron Ltd & Anor [2025] EWHC 606 (KB). The case involves mining pollution in Bahia state by Brazil Iron, domiciled at England. Background to the case is here. [71] Bourne J summarises counsel’s argument:
For this Court to accept the Claimants’ attempt to litigate the case in this country would, [counsel] submits, be contrary to requirements of judicial comity and would be an exercise of judicial colonialism. In that regard he referred to Altimo Holdings v Kyrgyz Mobil Tel Ltd [2012] 1 WLR 1804 PC, where Lord Collins said at [97]:
“Comity requires that the court be extremely cautious before deciding that there is a risk that justice will not be done in the foreign country by the foreign court, and that is why cogent evidence is required.”
Justice Bourne did not directly address the ‘judicial colonialism’ vocabulary yet in accepting jurisdiction for the E&W courts and rejecting the forum non conveniens challenge, he clearly disagrees with it.
Defendants’ attempt at rebuffing jurisdiction of course centres upon the Court of Appeal’s recent application of the test in cases like these in Limbu v Dyson and the approach, as was to be expected, attempts to distinguish Dyson and /or employ the one or two levers to support a forum non challenge, indicated by that judgment.
The judge summarises [100]
“an examination of “connecting factors” leads to the conclusion that Brazil is the forum with which this action has the more real and substantial connection, although there are factors leaning in both directions.”
Emphasis was put by defendants ia on the risk of irreconcilability of the outcome of the English proceedings with an ongoing Brasilian ‘Civil Public Action’ – CPA, a well as an ordinary civil claim introduced in Brasil.
The judge acknowledges that risk [101]. He refers in this context to Vedanta which flagged it as an important issue. (See also the extensive discussions on irreconcilability in Municipio viz the then applicable European rules of Brussels Ia (Articles 33-34)).
However he finds it outweighs the fact that the Defendants in England and are served there “as of right” (the actor sequitur forum rei principle). Also, control of the Brazilian company Brazil Iron Mineração Ltda (“BIML”), which operates the Fazenda Mocó iron ore mine in Mocó that is core to the claim, is held to be an issue which will be important in the proceedings and which heavily leans towards England. [101] Although “the Defendants’ directors may not live in the UK, it would be a logical assumption that a significant amount of evidence about the control issue may emanate from England and be in English.”
Overall, arguments which counted for Brasil are
[103] “the most important issues in the case are likely to concern (1) the operation and regulation of the Mine and (2) its impact on the Claimants. That does not mean that control will not be an important issue, but ultimately the claims concern environmental damage and the relevant environment is in Brazil. Those matters obviously occurred in Brazil and will be the subject of witness evidence and documentary evidence in that country.”
[104] “it is agreed that Brazilian law applies to the dispute. The relevant regulatory framework also is that of Brazil, or Bahia State. It therefore appears highly likely that there will be expert witnesses from Brazil, whether or not there are also experts from any other country. I do not overlook the fact that the English courts are well accustomed to applying foreign law. Nevertheless, there may be significant differences between the applicable systems of law – civil law and common law – and that favours the jurisdiction of the Brazilian courts. There may also be issues about Quilombola status and although I do not place much emphasis on that fact, it would be a theme with which the English courts would be wholly unfamiliar.” The latter refers to the issue of protection of indigenous communities under Brasilian law.
[105] “it would plainly be easier and cheaper for ..evidence to be received in Brazil, in Portuguese.”
However the one strong argument standing out in favour of jurisdiction of the English courts is [106]-[107]
that there is a real risk that the Claimants will not be able to obtain substantial justice in Brazil. That means that Brazil, despite its closer connection with the case, is not the appropriate forum in which it can most suitably be tried in the interests of the parties and for the ends of justice.
The reason, in brief summary, is that the evidence reveals a real risk that the Claimants will not be able to fund, or obtain funding for, legal representation of the kind necessary to litigate these claims to a proper conclusion.
This is not [108] down to any criticism of the Brasilian legal system, nor lack of integrity of that system or delay, neither of which the judge suggests exist. Rather, [110] the relatively small size of the claims, [111] the small number of claimants (implicit reference here by the judge to Municipio), [112] the limited means of the claimants, [113] complexity of the case in terms of both liability and control, [114] despite the judge not accusing the Brasilian system of delay, it has been shown that it does take a long time for Brasilian courts to hold on issues of such complexity.
[115] in England the case will go forward under a conditional fee arrangement – CFA, while [116] ff the expert evidence on balance of the possibility to find appropriate funding in Brasil including via legal aid, on the whole shows that that is unlikely.
[134] Comity is not considered to be an obstacle:
“As I have said, it is not premised on any criticism of the legal system in Brazil. Instead, it is founded on the fact that the economics of litigating this claim in the two jurisdictions are significantly different.”
[146] Lack of representation in a particular forum clearly is the Leitmotiv for the judge’s decision, and it is one based on a detailed consideration of the various options presented to him.
A judgment of note!
Geert.
EU private international law, 4th ed. 2024, Chapter 7.
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