Parent company liability, forum non conveniens and substantial justice

Abstract

This article examines the forum non conveniens doctrine in English parent company liability cases, focusing on the recent Vedanta, Unilever and Okpabi trilogy. It explains the dilemma that English courts, like other common law courts, have faced when confronted with arguments that foreign courts are unable to deliver ‘substantial justice’ to claimants. On the one hand, English courts do not wish to appear chauvinistic, but on the other they do not want to leave claimants without a remedy. This dilemma is even more pointed in the context of parent company liability cases which involve claims against English parent companies for harms caused by the operations of their subsidiaries in developing countries and, in particular, when the subsidiaries are of such economic importance (and are sometimes even partly owned or controlled by the developing country itself) that there is a real risk of corruption in the judicial process to protect those economic interests. The article shows that, in the recent trilogy, this dilemma has been sidestepped by allowing substantial justice arguments, but on less controversial procedural grounds, such as the absence of litigation funding in the foreign forum.