New Transnational Strategies in Pursuit of Justice

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The Business & Human Rights Resource Center’s (BHRRC) latest Annual Briefing confirms what those of us working for corporate accountability already knew:  2014 was bleak for victims of corporate human rights abuse seeking remedies and accountability, especially in the U.S. But we were pleased to see that BHRRC also recognized a new strategy we’ve developed to support human rights and environmental litigation in other countries by utilizing the liberal discovery rules in the U.S. to obtain vital information.

The Foreign Legal Assistance (FLA) Statute, 28 U.S.C. § 1782, allows any person with an “interest” in a foreign legal proceeding to request relevant documents and sworn testimony from corporations or individuals in the U.S. to support a case in a foreign court.  ERI has already filed three FLA applications in U.S. courts and developed a guide to inform communities, foreign lawyers, and other organizations about the existence, availability, and potential benefits of this strategy. Although BHRRC suggests that it’s too early to assess the impact of this strategy, two of the three cases we’ve filed under the statute have already been successfully resolved, while the third remains pending.

The first FLA action we filed sought documents from Chevron  to support ongoing litigation in Nigeria brought by villagers against Chevron Nigeria Ltd. for harms associated with its illegal and dangerous practice of flaring natural gas in their villages. Chevron came to an agreement with the Nigerian communities regarding those documents, and the communities are pleased with the outcome. To our knowledge, this was the first case where a public interest group used the FLA statute to assist communities in obtaining information from a US multination corporation. In the past, the FLA statute has mostly been used by multinational corporations – in fact, more FLA actions have been filed by Chevron than by anyone else. It used this tactic widely to support its defense in pollution litigation in Ecuador.

In February 2014, we successfully assisted three Tanzanian Maasai communities in obtaining information from Thomson Safaris, a Massachusetts-based tourism operation, and its owners to support ongoing litigation in Tanzania. The communities filed suit in Tanzania in 2010  against Thomson Safari’s Tanzanian subsidiary after they were forced off their land for the company’s luxury safari camp near the Serengeti National Park. The lawsuit alleges that the Tanzanian subsidiary illegally acquired their land and subjected them to violence and intimidation. The Massachusetts court quickly ordered the company and its owners to turn over documents and give sworn testimony about the sale of the land, the alleged violence against the Maasai, and the conversion of the land from Maasai grazing territory to a deluxe private resort.

As a result, the communities were able to obtain critical information to use in the upcoming trial. Since the Tanzanian court doesn’t have jurisdiction over Thomson, the U.S.-based parent company, or the two U.S. citizens that own the company, the communities wouldn’t have otherwise been able to gain access to this information. By filing this action in U.S. courts, the communities also brought their story to the United States, and were able to speak to an audience that might not otherwise hear it. After the court ruled, their story made the front page of the Boston Globe, the most important newspaper in the city where Thomson is based, and where a major portion of its clientele reside. The coverage brought the allegations of injustice to the company’s front door and forced the owners to respond to the allegations directly – and publicly.

We filed our third FLA request last year on behalf of a Peruvian protester who was shot in the back and paralyzed by police acting under contract with Newmont Mining as private security for its controversial Conga project. The FLA request, which is still pending, seeks information held by Newmont – such as photographic and video evidence and records of communications with the police – that will assist a pending criminal investigation into the two commanding police offices and a civil lawsuit against the police and other government actors. We’ve recently filed a motion requesting the court expedite consideration of the request, in light of approaching deadlines in the cases in Peru.

Although U.S. courts have continued to make it harder to take on powerful corporate interests, we’re always pursuing new and creative avenues to use the law to speak truth to power. We look forward to exploring how the foreign legal assistance statute can be used as a tool to strengthen human rights and environmental litigation around the world. We thank BHRRC for recognizing this new tool, and hope they’ll keep following our work in this area.

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