This weblog publish is by James Pickering, Head of 12 KBW’s Worldwide & Journey Legislation Workforce.
It is not going to have escaped the eye of our readers that, in Municipio De Mariana v BHP Group (UK) Ltd & Anor [2025] EWHC 3001 (TCC), the Claimants within the Fundão Dam Litigation staged a really outstanding comeback, escaping the abyss of strike-out by way of the Court docket of Enchantment and finally securing a victory on the deserves earlier than O’Farrell J.
This weblog publish is just not in regards to the factual background or the procedural historical past, as fascinating as these are. Neither is it in regards to the reasoning within the legal responsibility judgment, which has been analysed by many different commentators elsewhere. Neither is it in regards to the Claimants’ reported request for an interim prices order of £113m. The purpose is to focus on some fascinating nuggets within the 1,129-paragraph judgment which will help you, our readers, when the following cross-border declare arrives in your desk.
Sensible measures in complicated cross-border instances
Though talked about solely in passing, the choose’s description at [77] offers an perception into among the trendy sensible preparations that may be made to make sure that subtle cross-border proceedings run easily:
“The Court docket had the advantage of an digital doc system, displaying paperwork in English and Portuguese, with simultaneous translation companies for these witnesses giving their proof in Portuguese, in order that the written and oral proof might be adopted in English and/or Portuguese. Amenities on the Enterprise and Property Courts, Rolls Constructing in London included an overflow courtroom to which the listening to was transmitted for individuals who wished to attend the listening to. Reside hyperlinks for distant commentary had been offered to centres arrange by the legal professionals in Brazil for the events, in addition to to different distant observers who offered their particulars and utilized for entry to the listening to. However the geographical and language obstacles, these preparations enabled lots of the Claimants and different events, who wished to comply with the listening to, entry to the identical.”
Proving and making use of international regulation
In complicated litigation, it could be justifiable for the events to instruct a number of international regulation specialists, every coping with discrete problems with international regulation. For instance, the problems of environmental regulation, civil regulation, prescription, waivers and releases, standing, and licensing regulation, didn’t all have the identical pairs of international regulation specialists: see [80]-[87]. The query for the litigator approaching a case administration listening to will in all probability be whether or not there are distinct areas of regulation requiring bespoke experience. It could assist to have proof from a minimum of one skilled that they’re solely certified to touch upon space X slightly than space Y.
Within the case of disputed questions of international regulation, the duty for the trial choose is to find out what the very best related courtroom within the international authorized system would determine if the purpose had come earlier than it: Perry v Lopag Belief Reg [2023] UKPC 16 at [38]. That additionally entails an understanding of the foundations of interpretation or building that the international courtroom would apply so as to verify the that means and utility of any authorized devices to the details of the case: Mariana at [236].
As to what the English choose is definitely doing, it’s price remembering that their position is to not decide problems with international regulation as a matter of regulation; it’s to find out what has been proved as a matter of reality based mostly on the authorized opinions and supplies equipped within the particular case. O’Farrell J commented on this at [1096]-[1097]:
“The difficulty is whether or not the capability of the Municipalities to convey proceedings for damages is restricted to home proceedings in Brazil and doesn’t lengthen to international proceedings, by motive of the Structure.
It ought to be emphasised that the position of this Court docket is to not decide the difficulty as a matter of regulation, little question to the aid of the Brazilian constitutional legal professionals. The position of this Court docket is to find out the difficulty in accordance with Brazilian constitutional regulation, proved as a matter of reality, by reference to the skilled proof of Professor Sarlet and Professor Tepedino and the authorized supplies recognized by them.”
Company accountability
One of many legal responsibility points below Brazilian regulation involved the direct or oblique accountability of BHP (along with Vale) for the exercise of Samarco, a definite authorized entity that operated the Fundão Tailings Dam. The choose’s causes for locating that BHP was chargeable for Samarco’s actions (which she summarised at [523]-[532]) are analogous to the evaluation regarding Vedanta-style company assumptions of accountability. It’s price flagging the headlines:
Though they had been separate firms, BHP and Vale “had been the last word homeowners, controlling shareholders and the directing thoughts of Samarco.”
Appointments to Samarco’s Board had been decided by BHP and Vale. “The Govt Board was subservient to the need of the Samarco Board and, due to this fact, subservient to the need of BHP and Vale.”
BHP and Vale used their membership of committees and sub-committees to train factual management over Samarco. They “had been concerned within the actions of Samarco at each stage, from strategic selections and dividend shares to detailed operational issues.”
BHP assumed accountability for danger evaluation, management, mitigation, and administration inside Samarco. It carried out “monetary and technical audits of Samarco’s operations, the findings of which had been reported to, thought of and monitored by, BHP”.
“BHP exercised management over Samarco’s actions, together with its brief and long-term technique, investments, manufacturing, monetary and technical danger evaluation and administration by the audit course of, funding preparations and the cost of dividends.”
BHP participated and was concerned in Samarco’s actions by reviewing, approving, and funding them, in addition to monitoring and procuring the administration and execution of sure tasks.
Lastly, it was important that Samarco was an asset during which BHP considerably invested and from which it derived substantial monetary and business advantages.
No shock, then, that BHP bore final accountability for Samarco’s actions.
Limitation
The Defendant complained that the statements of case didn’t embrace enough info, as required by Brazilian regulation, to cease time working. At [821], O’Farrell J made clear that there was a distinction to be drawn right here:
“In my judgment, a distinction have to be drawn between the substantive guidelines of prescription, which it’s agreed are topic to Brazilian regulation by motive of Article 15(h), and the procedural guidelines for effecting legitimate challenge and repair of a declare on this jurisdiction, which ought to be characterised as procedural and due to this fact fall to be ruled by English regulation, the Civil Process Guidelines 1998 (“the CPR”). There could also be instances during which it’s unclear whether or not a specified requirement falls into the class of substantive regulation or procedural/evidential regulation.”
O’Farrell J at [823] defined why it was necessary that the course of in accordance with which service is effected ought to be ruled purely by English regulation:
“English procedural guidelines governing the graduation of proceedings by the difficulty and repair of a declare kind outline the elemental foundation on which jurisdiction over the matter is conferred on the courtroom. The service of originating course of is the act by which the defendants are subjected to the courtroom’s jurisdiction. Makes an attempt to superimpose the varied guidelines of service of international courts, as distinct from a requirement that there ought to be legitimate service of a declare, would trigger uncertainty and procedural chaos.”
In Mariana, no matter whether or not English regulation or Brazilian regulation utilized to the necessities for challenge and repair of the statements of case, the choose thought of that their contents had been legitimate to cease time working for prescription on the date of challenge. This adopted from a concession of the Defendant’s skilled in cross-examination:
“The fabric criticism made by BHP is that the declare kinds said the worth of the declare as being “limitless” however didn’t establish a exact determine. In cross-examination, Professor Tepedino agreed that an incorrect or omitted worth from a declare kind wouldn’t be thought of a sufficiently critical defect in order to impression on the interruption of prescription.”
However distinction the place in Vilca v Xstrata [2018] EWHC 27 (QB): the contents weren’t legitimate to cease time working, because the statements of case as initially served had been pleaded in English regulation and had been solely transformed into claims below Peruvian regulation (the relevant substantive regulation) after the expiry of limitation.
This weblog publish was written by James Pickering.
