Local Parents As ‘Anchor Defendants’ in European Courts for Claims Against Their Foreign Subsidiaries in Human Rights and Environmental Damages Litigation: Recent Case Law and Legislative Trends

Abstract

Over the last few years, litigation in European courts against gross human rights violations and widespread environmental disasters has intensified. Recent case law shows that victims domiciled in third States attempt to start proceedings in Europe, where the parent company of a negligent local subsidiary is seated. In light of this, national courts of the EU have been asked to determine whether the parent company located in the State of the court seized with the matter may serve as an ʻanchor defendantʼ for claims against its foreign subsidiary. In Okpabi & Ors v. Royal Dutch Shell Plc & Anor, Akpan v. RDS and KiK, national courts' assessment regarding international jurisdiction significantly diverged. Unsatisfied with this result, some States adopted -or are in the process of adopting- legislations that establish or reinforce the duty of care or vigilance of parent companies directly towards victims. The present paper examines the latest legislative developments that took place in France, Switzerland and Germany. Notably, many States have opted for the amendment of their substantive law (only) rather than (additionally) for the modification of private international law rules.

Keywords: Brussels regulation recast, anchor defendant, duty of care, human rights litigation, environment

JEL Classification: K33, K41, K49