Using Domestic Courts
Many advocates look to the courts to seek justice for communities whose land and natural resource rights have been violated by companies. Since the role of the courts is to examine and make judgments on whether laws have been breached and to order remedies, it makes sense that we should be able to turn to them to hold companies accountable.
In cases that involve several responsible actors along the investment chain, legal action may be possible in more than one jurisdiction. The jurisdiction of a court is the territory, person or subject matter over which it has the legal authority to make judgments. For example:
- It may be possible to sue the business directly responsible for violations in the country where the agriculture investment project and violation are taking place.
- If the business managing the project or its parent company is foreign, it may be possible to take legal action in the country where the company is registered.
- It may be possible to take legal action against banks that loan money to the business or parent company in the countries where the lenders are registered.
- It may be possible to take legal action against investors in the business or parent company in the countries where the investors are registered.
- It may also be possible to sue buyers that have purchased the product cultivated on the plantation. It may be possible to bring legal action against a buyer in the country that is importing the product.
If litigation is possible in a jurisdiction with strong rule of law and an independent judiciary, it can be the most effective form of advocacy. If the community wins the case in court and the judgment is enforceable, even if the community is in another country, the company involved will be legally required to comply with the court order. Sometimes, just commencing litigation will place enough pressure on the company to agree to enter into negotiations to try to settle the dispute to avoid a full court hearing and risk losing the case.
The ability to use the courts, however, will differ in each jurisdiction and can often be quite challenging. Some of the obstacles include:
- Political interference and corruption in courts in many countries where agricultural investments are violating the rights of local communities;
- Weaknesses or gaps in laws and regulations governing the activities that have caused human rights violations;
- Lack of legal liability or responsibility under the law of lenders, investors and buyers, even though they make the agribusiness projects possible and receive a portion of the profits;
- Difficulty of attributing legal responsibility to one member of a corporate group, such as a parent company, for the activities of another part of the group, such as a subsidiary, when they are registered as separate legal entities.
- Jurisdiction challenges of using the courts in countries where the business or its investors and buyers are registered. Many courts take a restrictive view of the extraterritorial — or overseas — reach of a country’s laws or a court’s jurisdiction. They may reject a case because the wrongdoing occurred in another country.
- Lengthy court processes that can take many years to reach a judgment, which if favourable to the community might then be appealed by the company.
Another major challenge is the high cost of using the courts. Some lawyers are willing to provide legal advice and representation for free (known as pro bono) or on a “no-win no-fee” basis, meaning that the lawyer is only paid if the suit is successful in court or an out-of-court settlement is reached. However, even when you are able to find a lawyer willing to represent the community without charging any upfront fees, there are many other costs involved, such as travel, gathering evidence, court fees and hiring expert witnesses. In many courts, if you lose the case the judge may order you to pay the legal fees of the other party, which can be an enormous sum.
If, after conducting research, you believe that your case is strong and it may be possible to use the courts despite these challenges, there are several organizations that you can contact to get free legal advice. In addition to legal aid organisations in your own country, the following organizations may be able to provide you with legal advice or connect you with lawyers willing to provide pro bono advice:
Box 15: Case Study
Seeking justice for sugarcane land grabs: Transnational legal action in the UK courts
In recent years, the Cambodian government has leased vast tracts of land to private investors for industrial sugarcane plantations. These land concessions often overlap with land used by small-scale farmers, leading to their forced displacement. Some of the concessions have involved violent forced evictions, with villages burned to the ground by the Cambodian military in collusion with the companies. Villagers who have protested against the land seizures have been thrown in jail.
One of the companies that owns a sugarcane plantation in Cambodia is a Thai company. A British company signed a multi-year agreement to buy all the sugar from the Thai company’s plantations in Cambodia.
The NGOs supporting the farmers helped them to obtain advice and representation for legal action in the UK High Court. A British law firm, operating on a pro bono basis, filed a lawsuit on behalf of the farmers in the court against the British company for violating the law of conversion. The law firm argued that the company wrongfully profited from goods produced on land that was improperly taken from the farmers. The farmers sought compensation equivalent to the value of the sugar produced on their land.
Even though the land seizures occurred in Cambodia and the main company involved was registered in Thailand, the UK High Court accepted jurisdiction over the case because the sugar was imported into the UK by a British company.