Transnational Corporate Liability Litigation and Access to Environmental Justice: The Vedanta v Lungowe Case
| Author | Elvis Ojeda |
| Position | Ministry of Foreign Affairs of Peru, PE |
| Pages | 223-248 |
2021 LSE LAW REVIEW 223
Transnational Corporate Liability Litigation and Access
to Environmental Justice: The Vedanta v Lungowe Case
Elvis Ojeda*
ABSTRACT
On April 10, 20 19, the Supreme Court of the United Kingdom released the Vedanta
Resources Plc & another v Lungowe & others judgment. This case dealt with an English
domiciled parent company’s possible liability for alleged environmental damage caused by one of
its subsidiaries in Zambia. Based on the arguable duty of care Vedanta could owe to foreign
claimants affected by the operations of one of its overseas subsidiaries, the Supreme Court ruling
adopted a ‘new approach’ regarding transnational corporate liability litigation, which established
that the parent company’s home state’s national courts might have jurisdiction to hear this case.
This article seeks to explore the Supreme Court’s judgment, which is expected to have significant
consequences and influence the reasoning of other courts in countries where parent companies are
located. Although the Supreme Court’s decision aims to give access to justice to the affected
(Zambian) community, this article argues that it is questionable whether the adoption of this
‘new approach’ would encourage parent companies to adopt measures oriented towards the
compliance of international environmental standards. Instead, the Court’s ruling could lead
parent companies to assume less responsibility and be less transparen t regarding operations
carried out by their foreign subsidiaries.
* Peruvia n Diplomat. Second Secretary at the Embassy of Peru in Bolivia. He holds a
Master of La ws (LLM) in Public International Law from The London School of
Economics and Political Sciences (LSE), a Master in International Relations and
Diplomacy from the Diplomatic Academy of Peru, and a Bachelor of L aws (LLB) from
the Universidad del Pacífico in Lima, Peru. He has also attended The Hague Academy of
International Law and the Institut d'Études Politiques de Paris (Sciences Po). During 2018
and 2019, he served as Coordinator in the Cabinet of the Secretary General of Foreign
Affairs of Peru. In 2020, he worked in the General Directorate of Sovereignty, Limits and
Antarctic Affairs of the Ministry of Foreign Affairs of Peru.
224 Corporate Liability Litigation and Access to Environmental Justice Vol. VI
INTRODUCTION
It is evident that the polluting activities of corporate groups have caused
harm to communities in developing countries. T his constitutes a challenge for
traditional legal control methods.1 While in Western countries operations leading
to environmental damage have increasingly come under legal scrutiny, these
activities often ‘go unchecked’ in developing countries.2 Consequently, local
communities are more vulnerable to environmental contamination.3
Furthermore, as Croser and others explain, when vulnerable communities
try to obtain effective legal remedies in their home states, they often face
significant difficulties.4 Firstly, people living in these communities do not usually
have enough funds to hire lawyers and experts to pursue litigation in their home
countries. Moreover, some of thes e experts are reluctant to do work that
implicates giving evidence against polluting entities because t hey prefer not to
threaten their future job opportunities.5 Secondly, polluting companies often hire
people from vulnerable communities, creating dependencies between the
corporations and those communities. Thirdly, the activities of a corporation may
be directed from one of its parent company’s offices, often located in developed
countries and far from where such activities take place.6
As a result, communities susce ptible to environmental pollution often lack
effective legal mechanisms in their home countries to claim the violation of their
rights. One alternative, under this particular circumstance, is to seek justice by
bringing a lawsuit against the parent company in its home state, in what is known
as ‘transnational court litigation’. Through this type of litigation, claimants often
1Carrie Bradshaw, ‘Corporate Liability for Toxic Torts Abroad: Vedanta v Lungowe in the
Supreme Court’ [2020] 32(1) Journal of Environmental Law 139.
2Samvel Varvastian a nd Felicity Kalunga, ‘Transnational Corporate Liability for
Environmental Damage and Climate Change: Reassessing Access to Justice after Vedanta
v. Lungowe’ [2020] 9(2) Transnational Environmental Law 324.
3ibid.
4Marilyn Croser, Mart yn Day, Mariette Van Huijstee, Channa Samkalden, ‘Vedanta v
Lungowe and Kiobel v Shell: The Implications for Parent Company Accountability’ [2020]
5 Business and Human Rights Journal 130.
5Felicity Millner, ‘Access to Environmental Justice’ [2011] 16 Deakin Law Rev 201.
6Varvastian (n 2) 324.
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