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A Long and Winding Road to Corporate Accountability: the Wider Ramifications of Jesner v Arab Bank


This post is the fourth in the Jesner v Arab Bank special series on this blog. Previous posts are here, here and here.

It is a pleasure to welcome Marisa McVey (@MarisaMcV) on Rights as Usual. Marisa is a PhD student at the University of St Andrews. She is focusing on analysing corporate accountability in the reporting and assurance practices of the UN Guiding Principles on Business and Human Rights. More information can be found here. This post is hers.


Against the backdrop of the outcry over Cambridge Analytica and Facebook, and other recent business and human rights scandals, there have been increasing calls for greater corporate accountability for human rights, yet binding accountability still seems to be a rarity. Transnational tort litigation has been used to fill this void, but the recent US Supreme Court decision Jesner v Arab Bank more than complicates matters. While the intricacies of Jesner are far better summarised elsewhere, this post wishes to explore the wider implications of closing this particular avenue of corporate accountability. Essentially, does the judgment handed down by the US Supreme Court mean we must look outside the courtroom for corporate accountability?

Fast fashion 

On 24th April 2013, the Rana Plaza factory complex in Bangladesh collapsed, killing over 1,000 people. It gave the general public a glimpse not only of the true cost of ‘fast fashion’, but also the urgent underlying need to hold corporations to account for their conduct. The implications of this disaster echoed around the world, culminating in the Accord on Fire and Building Safety in Bangladesh and the Alliance for Bangladesh Workers Safety, signed by the likes of H&M, GAP and Nordstrom. Audit procedures and corrective action plans within these initiatives sought to prevent any further health and safety hazards. The Accord also provided remediation options, such as international arbitration as an attempt to ensure the brands were accountable to their obligations under the agreement. A fund was also set up to try to compensate victims and their families. The success of these attempts at corporate accountability has been mixed. Brands offer financial help with better safety equipment, yet still apply downward pressure on garment prices; moreover, the compensation fund took two years to reach its $30 million target. Rana Plaza ultimately highlighted two of the most prominent difficulties in the business and human rights endeavour: how do we hold corporations accountable for human rights violations, and how do we provide redress for the harm committed?

Slow justice

Across the globe, and coincidentally on the fifth anniversary of the Rana Plaza disaster, the US Supreme Court handed down its judgment on Jesner. The facts of this case are very different to those of Rana Plaza, but the plaintiffs’ argument exposed the same need to hold corporations to account for their human rights conduct. However, the judgement effectively applies a blanket ban on the ability to hold corporations accountable via foreign direct liability under the Alien Tort Statute (ATS). This antique statute was absolutely not a perfect mechanism for redress for victims of human rights violations by corporations. One could argue that it represented more of a novel legal avenue for scholars of business and human rights, rather than an efficient mechanism for redress for the victims whose lives and livelihoods were destroyed by corporations. In fact, at the time of writing, no plaintiff under the ATS has ever won in the Supreme Court (and with Jesner, it is now unlikely that they ever will).

Yet the ATS became a trendsetter, providing a foundation for the gradual global diffusion of transnational tort cases. One such example was Okpabi v Shell, heard in the UK earlier this year and discussed on this blog here. In the business and human rights field, where voluntary soft-law principles still reign supreme, the ATS and its subsequent case law had offered some (albeit dwindling) hope for legally binding corporate accountability. Corporations are becoming increasingly aware that human rights cannot simply be part of a shiny report on corporate social responsibility (see the Cambridge Analytica/Facebook scandal above). This awareness, however, does not directly translate into action. With foreign direct liability in troubled waters in the UK, and now in the US, there is a need to ensure that corporations are consistently reminded that their human rights responsibilities reach beyond fundraising or building schools in the Global South.

Soft law?  

It’s unlikely that transnational tort cases for human rights will disappear. But, unlike when the ATS first came to the attention of those using creative judicial means to hold corporations to account, there now exists a plethora of non-statutory corporate accountability mechanisms eager to come to the fore. Some, like the Alliance for Bangladesh Workers Safety, are galvanised by (and specific to) a particular industry or human rights issue. Others, like the UN Guiding Principles on Business and Human Rights aim to be preventative, encouraging human rights reporting practices to become central to providing corporate accountability. The OECD Guidelines, with their National Contact Points and specific instance procedure, to an extent provide a stronger form of corporate accountability. However, interpretation of these Guidelines differs from country to country, leaving a highly fragmented body of cases.

These multi-layered, multi-disciplined approaches all have their advantages, yet they are dispersed and incongruent. In some ways, through tort law, foreign direct liability provided an international normative basis for accountability. My guess (and hope) is that Jesner will provide an excellent incentive to ramp up the campaign for a binding international treaty on business and human rights. This would attempt to provide a cohesive basis for corporate accountability, though progress has to date been slow and its exact contents up for debate. Nevertheless, on the fifth anniversary of Rana Plaza, the outcome of Jesner reminds us of the need to provide legal avenues for human rights violations, regardless of who commits them.

Complicity issues and redress for victims in the aftermath of Jesner v Arab Bank


This post is the third in the Jesner v Arab Bank special series on this blog. Previous posts are here and here.

It is a pleasure to welcome a team from the Law School at Queen’s University Belfast on Rights as Usual. The team includes Ciara Hackett, Ciaran O’Kelly, Clare Patton and Luke Moffett. Ciara’s research focuses on CSR and Business and Human Rights.  Ciaran is interested in corporate accountability and the language of corporate reporting. Clare’s research focuses on cause related marketing and CSR. Luke researches on reparations, international criminal law and victims. All are staff in the Law School at QUB. This post is theirs.


Last week the US Supreme Court issued their decision on Jesner v Arab Bank. This case concerned whether or not corporate defendants could be held liable under the Alien Tort Statute (ATS). The facts of this case involved an allegedly complicit corporate defendant. As a group, we are working together on how complicity is articulated within the business and human rights field. Thus we were especially interested in whether, and if so how, the Court would speak to issues involving complicit corporations. Our research focuses in particular on how the ‘corporate responsibility to respect human rights’ as outlined in the United Nations Guiding Principles on Human Rights does not explicity reference complicity, but how the requirements of due diligence highlights its importance as an object of investigation. Because of the facts of the case, we had hoped that there would be some discussion on complicity in the decision, although we did appreciate that the issue in the case was corporate liability. We certainly had not anticipated the majority (5-4) decision that foreign corporations cannot be defendants in cases brought under the Alien Tort Statute (ATS). Many issues arise from the Jesner decision and some of them are dealt with on this blog here and here. In this blog post, we focus on two aspects: (1) the Court’s narrow view on complicity and its disregard for passive complicity; and (2) the implications of the decision for victims of human rights violations involving corporations.

There is more to complicity than ‘aiding and abetting’

On complicity, the Court seemed particularly misguided, recognising only ‘active’ complicity – and suggesting that this was an issue for Congress to decide. ‘Active’ complicity is also known as ‘aiding and abetting’ and in Kiobel it was used to accuse the corporate defendant of aiding and abetting the Nigerian Government in committing law of nations violations. In Jesner, the majority seemed to say that plaintiffs allege ‘aiding and abetting’ to use corporations as surrogate defendants. Justice Sotomayor (dissenting) recognises that this is misaligned and suggests that there are other forms of ‘aiding and abetting’. However, and perhaps due to the facts of the case, neither she, nor the rest of the Court seem to recognise the idea of ‘passive’ complicity. This is where corporations may be complicit in human rights violations even when they are not the direct result of their own action. For example, in the Ibañez case (translated amicus here), large sums of banks’ loans provided to the Argentine dictatorship were crucial for its abuses of human rights. The banks were not instigating or financing abuse directly, rather, were facilitating an environment under which abuses could happen. Passive complicity, in an era of due diligence and increasingly complex supply chains, is a key area for business and human rights moving forwards. Indeed, the expansion of human rights due diligence in governance processes suggests that corporations, if only through their actions, recognise passive complicity as something for which they might legitimately be called to account. We had hoped that the Court would recognise the existence of a spectrum of complicity, albeit obiter. This would have aligned the Court’s decision with Principle 2 of the UN Global Compact which recognises direct, beneficial and silent complicity. But this was perhaps an optimistic expectation on our behalf.

What about victims?

In short, the Court did not really mention the victims, and certainly not sympathetically.

The judgment is silent on where victims of human rights violations involving corporations might seek redress. Although perhaps beyond the scope of the judgment, this seems cold – especially given the circumstances of the plaintiffs’ claim. Justice Sotomayor in her dissent does make a nod to this. She notes that whereas the market does not price all externalities (including the profit motive for abuses) ‘the law does’. Well, it should. Sotomayor rightly notes that in allowing entities to be protected with rights in the law but with none of the fundamental responsibilities, the Court is undermining the system of accountability that the First Congress endeavoured to impose.  This is something of a counter argument to the majority who suggested that the ATS cannot apply to foreign corporations because it did not apply to corporations in 1789 (see Justice Gorusch in particular). We believe that this view both embeds and further extends Justice Scalia’s renowned textualism yet sits at odds with the consitutional rights developments such as those outlined in Citizen United.

Where alternative routes to recovery are mentioned, they all focus on an active abuse of human rights as opposed to complicity in the face of human rights abuses (typically against employees of corporations as per Justice Kennedy). Justice Kennedy also notes that actions can be taken against individual employees within the corporation for the human rights violations of the corporation. This ignores the literature on collective responsibility and group agency dominating the area at present. It also highlights a further problem. If the Court has such a narrow view of what complicity is, they are failing to recognise the categories of victims that may exist where a corporation has been passively or silently complicit. In so doing, they are creating a hierarchy of victims (whereby a victim of an actively complicit corporation has a more defined route to recovery than a victim of a passively complicit corporation) which we believe is in conflict with the broader conversations on due diligence within business and human rights.

The plurality in Jesner insisted that corporate liability for human rights violations as a cause of action was a matter for Congress not the courts. They cited the failure of the Torture Victim Protection Act (TVPA)  to extend to corporations as a reason why the ATS could not apply to corporations, suggesting that Congress needed to make this decision in the same way as they did in the TVPA. What is frustrating in this claim is that they note that with the ATS, the First Congress ‘provided a federal remedy for a narrow category of international law violations committed by individuals’ but that two centuries on, it is still for Congress to extend this to include corporations. Yet, Congress has failed to do so.  The foreign policy fears, and the claim that extending the ATS to include foreign corporations would have a detrimental impact on American business in developing countries (a particularly strange argument) that infused the majority judgment, seem also to prevail in the legislature.

In categorically closing the idea of foreign corporations being sued under the ATS for human rights violations, 25 years of human rights based claims against foreign corporations have ended. Other routes to remedy at national and international levels remain, and suits against US corporations also remain possible. But this decision has made victims of abuses involving corporations (actively or complicitly) the biggest losers.

Blurring the Line between Criminal and Civil Liability of Corporations in Jesner v Arab Bank

This post is the second in the Jesner v Arab Bank special series on this blog. The first one is here.

It is a pleasure to welcome back Alessandra De Tommaso as a guest poster on ‘Rights as Usual’. Alessandra is a PhD candidate at Middlesex University School of Law in London. She works on the challenges arising from corporate criminal liability under international criminal law. This post is hers.


On 24 April 2018, the U.S. Supreme Court delivered its opinion in the case Jesner v Arab Bank, closing the door to future litigation against foreign corporations under the Alien Tort Statute (ATS). For those who believe in corporate accountability for human rights violations, this decision is a setback. But irrespective of one’s views, the decision is also incorrect. This post focuses on the Court’s misguided use of the practice of international criminal tribunals to exclude the possibility to sue (foreign) corporations under the ATS. It argues that international tribunals’ lack of authority to impose criminal liability on legal entities cannot be used as a reason to foreclose the civil liability of corporations at the domestic level.

The majority’s opinion in Jesner opens with a discussion on whether “the law of nations imposes liability on corporations for human-rights violations”. In reaching the conclusion that there is no international norm of corporate liability, the majority applies the same reasoning adopted by the Court of Appeals for the Second Circuit in its 2010 decision in Kiobel. Since none of the existing international criminal tribunals included corporations in their jurisdiction, the liability of business entities for human rights violations must be excluded under international law. In the words of the majority:

“The international community’s conscious decision to limit the authority of [existing] international tribunals to natural persons counsels against a broad holding that there is a specific, universal, and obligatory norm of corporate liability under currently prevailing international law.” (Kennedy, J., opinion, 15)

Here the Court confuses the lack of a mean of enforcement at the international level with the absence of an international norm (see Dr. Nadia Bernaz’s post here). But leaving aside this misconception, the majority’s reasoning is erroneous from another perspective. The Court does not take into consideration that the international tribunals mentioned in the judgement have the authority to impose criminal liability only. Civil liability is not addressed in the statutes of any of these tribunals; neither was it discussed during the negotiations leading to their adoption. This point was correctly raised by Ambassador David J. Scheffer in his Brief as Amicus Curiae of 26 June 2017. Nonetheless, the Court assumed that the lack of an enforcing mechanism able to impose criminal liability on legal entities at the international level can affect the possibility of imposing civil liability at the domestic level. In doing so, the Court fails to distinguish between criminal liability under international criminal law, on one side, and civil liability under national law, on the other. A distinction that is particularly relevant in the context of corporate liability. Indeed, while corporate criminal liability is still a controversial legal concept and has yet to be recognised under international criminal law, the civil liability of companies is a general principle of law recognised worldwide. Yet the majority refuses to acknowledge such a fundamental distinction.

To conclude, it is incorrect to assume that the exclusion of corporate criminal liability from the statutes of international criminal tribunals forecloses the possibility to hold corporations civilly accountable at the domestic level. The Court’s argument on this point of law is flawed. As correctly observed by Judge Sotomayor in the minority opinion:

“… taken to its natural conclusion, the plurality’s focus on the practice of international criminal tribunals would prove too much. No international tribunal has ever been created and endowed with jurisdiction to hold natural persons civilly (as opposed to criminally) liable, yet the majority and respondent accept that natural persons can be held liable under the ATS.” (Sotomayor, J., dissenting, 9)

Unnecessary, Wrong, and Misguided – the US Supreme Court’s Blanket Ban on All ATS Suits against Foreign Corporations in Jesner v Arab Bank


I  was waiting for it. I discussed it at length with students and colleagues. I envisaged many scenarios, even the worst possible one: the end of all claims against all corporations under the Alien Tort Statute (ATS) (see my previous post here). Yesterday, on  24 April 2018, it finally came: the US Supreme Court’s decision in Jesner v Arab Bank.

The question that was asked was whether the ATS categorically forecloses corporate liability. In a 5-4 decision, the Court issued a blanket ban on all ATS suits against foreign corporations. It said little about the liability of US corporations under the ATS so we can assume it remains a possibility, and that we dodged a bullet on this point. Regardless, this is the end of business and human rights ATS litigation against non-US companies, and a setback for those who seek to strengthen corporate accountability.

After a first read, here are my thoughts. The decision was unnecessary and amounts to, in the words of Justice Sotomayor writing for the dissenting minority, “us[ing] a sledgehammer to crack a nut.” The decision is also wrong, as it conflates the existence of a norm of international law and the possibility of its enforcement at the international level. Finally, the decision is misguided. The Court expresses concerns about the treatment of US corporations abroad if ATS suits against foreign corporations were allowed to continue. This argument attempts to oversimplify what is a complex matter. It is as if the Court aimed to appease those who believe US corporate giants cannot possibly do wrong, but actually have little understanding of how multinational corporations operate.

Ending all claims against foreign corporations was unnecessary

US federal courts have a set of tools at their disposal to address the legitimate concerns the facts of this, and other similar cases, raise. One of those tools is the “touch and concern” test that the US Supreme Court established merely five years ago in Kiobel, and whose raison d’être is now in question. The case could have been dismissed on forum non conveniens grounds or on the basis of nonjusticiability concerns such as the act of state, political question and comity doctrines. Instead of trusting lower court’s determinations on a case by case basis, the Court went for an absolute ban. I simply cannot find a good reason for this approach.

Conflating the existence of a norm of international law with the possibility of its enforcement is wrong

The Court discusses at length the existence of a norm on corporate liability for gross human rights violations under international law. It concludes that such liability is not recognised in international criminal tribunal’s statutes and that it therefore does not exist. Anyone who has taught an introductory international law course will tell you the same story: students often make a similar mistake when they first encounter international law. They mix up the existence of a norm and the possibility of its enforcement. International law is not really law, they assume, because it cannot be enforced in the same way domestic law is. While beginners can be forgiven for this mistake, to see one of the most prestigious judicial institutions in the world fall into that trap is mind-boggling. There is no question that certain norms of international law, particularly in international criminal law, apply to corporations. How they are held liable depends on states and is done precisely through mechanisms such as the ATS. To use this argument to prevent corporate liability at the domestic level is wrong.

The Court’s belief that ATS suits against foreign corporations jeopardize US corporations’ overseas operations is misguided

Towards the end of the judgement, the Court addresses another issue, that of the potential consequences of ATS suits against foreign corporations for US corporations. This, it argues,

“could subject American corporations to an immediate, constant risk of claims seeking to impose massive liability for the alleged conduct of their employees and subsidiaries around the world, all as determined in foreign courts, thereby ‘hinder[ing] global investment in developing economies, where it is most needed.’

In other words, allowing plaintiffs to sue foreign corporations under the ATS could establish a precedent that discourages American corporations from investing abroad, including in developing economies where the host government might have a history of alleged human-rights violations, or where judicial systems might lack the safeguards of United States courts. And, in consequence, that often might deter the active corporate investment that contributes to the economic development that so often is an essential foundation for human rights.”

To think that the mere possibility of an ATS lawsuit against foreign corporations could “ discourage” US corporations from investing abroad is misguided. Such lawsuits were possible until yesterday. Have US corporations ever stopped, or even refrained from, investing abroad for that reason? I doubt it. In any event, establishing this would require in-depth research that the Court does not even hint at. This argument is also ridiculous in light of the protections international investment law affords, and of the fact that no ATS lawsuit against a corporation has ever succeeded. The final point about how US corporations contribute to the realisation of human rights is also misguided. Of course it is true in certain circumstances but this is not the point. The point is that when corporations engage in human rights violations it is only right that they are held liable. Having done some good must not prevent liability. By suggesting otherwise, the Court reinforces the dangerous and misconceived idea that human rights standards are an inconvenience for the business world.

Okpabi v. Shell on Appeal: Foreign Direct Liability in Troubled Waters


It is a pleasure to welcome Lucas Roorda as a guest poster on “Rights as Usual”. M. Roorda is a Ph.D. candidate at Utrecht University, in the Institute of International, Social and Economic Public Law. He specializes in extraterritorial jurisdiction over corporate human rights violations. This post is his.


These are busy days in English courts, insofar as foreign direct liability cases are concerned. Last year saw the London High Court decline jurisdiction in AAA v. Unilever on post-election violence in Kenya, while the Court of Appeals upheld the High Court’s interlocutory decision in Lungowe v. Vedanta on mining operations in Zambia. This February, on Valentine’s day no less, the Court of Appeals decided on the appeal against the interlocutory decision in Okpabi v. Shell. There seems to be little love lost between the applicants and the court: in a split decision (Sales LJ disagreeing) it upheld the High Court’s ruling that the applicants had no arguable claim against Shell, dismissing the appeal on all counts. This post examines the main tenets of the Okpabi appeals decision, how it compares against similar cases like Lungowe, and what that may mean for the future of foreign direct liability cases in English courts.

Okpabi and duties of care in the courts

To recap, the Okpabi case concerned a complaint filed by Nigerian plaintiffs from the Ogale community against Royal Dutch Shell (RDS) and its Nigerian subsidiary SPDC. The plaintiffs alleged that faulty maintenance of pipelines had caused oil pollution in their communities. The argued that RDS had breached a common law duty of care pursuant to Caparo v. Dickman. To argue a duty of care on the basis of Caparo exists, the plaintiffs needed to argue (1) that is was foreseeable that the subsidiary’s activities may result in harm, (2) that the parent was in close proximity to its subsidiary, and that (3) it was reasonable and appropriate to impose such a duty. The proximity criterion has been further clarified in Chandler v. Cape. As discussed by Ekaterina Aristova in her excellent blog, this approach also makes it possible to assert jurisdiction over subsidiary SPDC as a “necessary and proper party” to the claim against the parent. It has been argued in a number of recent cases, including Lungowe and AAA, and mutatis mutandis in the Dutch case of Akpan en Stichting Milieudefensie v. Shell, discussed here on this blog.

RDS and SPDC both denied that the leakages were the result of lacking maintenance and disputed the English courts’ jurisdiction over the case, arguing that the case should take place in Nigeria. In particular, they argued that the claim against RDS had no prospect of succeeding, and was merely used as an empty vessel to “anchor” the claim against SPDC and bring it within the jurisdiction of English courts. In 2016, the High Court accepted the defendants’ motion to dismiss, holding that the claimants did not have a “good arguable case” against RDS; consequently, there was no viable claim to which SPDC could be a “necessary and proper party”, and the entire case was dismissed. I have discussed that decision in detail here. The main thrust of the High Court’s decision was that RDS as the ultimate holding company was too far removed from its subsidiary in Shell’s corporate structure, and was not “in the same business” as its subsidiary as required by Chandler.

On appeal, Lord Justice Simon writing for the Court of Appeals agreed with the conclusions of the High Court, albeit with a different argumentation. The parties had agreed that the principal issue was the proximity element of the Caparo test: if there was no “good arguable case” against RDS on this basis, the case would fall apart entirely. In contrast to the High Court, the Court of Appeals’ decision focused more on RDS’ operational control over SPDC, and its involvement in the activities of its subsidiaries. While Simon LJ did recognize the plaintiffs’ argument that RDS has a central role in designing, implementing and monitoring environmental and security policies of the entire group, he did not consider those general policies to be sufficient to establish a degree of control that would satisfy the proximity requirement under Caparo (para. 127). The appeal was thus rejected.

The Okpabi decision stands in sharp contrast to Lord Justice Jackson’s assessment of very similar arguments made in Lungowe v. Vedanta recently. Lungowe also concerned duties of care of parent companies (the case is cited in Okpabi para. 23). The main difference between these cases is that the Lungowe court saw much more active involvement of the parent company with its subsidiary than the Okpabi court did with respect to RDS and SPDC. Moreover, the Lungowe court tried to avoid an all-too-deep inquiry into the merits, warning against “mini-trials” in this preliminary phase of the proceedings (see Lungowe 2017, para. 86 citing Coulson J, and para. 90). Instead, it recognized that while the case might not be open-and-shut at this stage, evidence may become available at a later stage to support the claimants’ assertions.

Mini-trials and perverse incentives

The Okpabi appeals decision is disappointing for several reasons. First, assessing “proximity” according to the standards set by the Court of Appeals essentially rewards corporate groups whose parent companies do not get actively involved with their subsidiaries’ operations. Even when the parent is instrumental in creating operational standards across the entire group, that would not be sufficient for it to incur a duty of care; whereas more hands-on involvement would. This creates perverse incentives for parent companies not to improve the environmental, security and health and safety standards of specific subsidiaries, lest they are held liable when harm occurs later. It also punishes companies that do try to be more responsible. It is a strange movement in times when transnational corporations are encouraged to take due diligence with regard to the human rights and environmental risks of their operations.

Second, it could be argued that the Court of Appeals’ approach to the proximity standard requires the plaintiffs to have a “winnable” rather than an “arguable” case. Earlier cases required that the plaintiffs’ claim against the parent was more than hypothetical. Simon LJ’s examination of the claimants’ arguments in contrast seems to suggest that a virtual ‘smoking gun’ was necessary to make the claim arguable. That “smoking gun” could be a document that showed that RDS had indeed actively intervened in SPDC rather than documents showing its capacity to do so. It is questionable whether this is appropriate at the jurisdiction stage of the case, or if this inches close to the “mini-trials” the Lungowe court warned of.

Third, this early incursion into the merits puts plaintiffs at a serious disadvantage with regard to producing evidence. They cannot rely on disclosure rules in this phase of the proceedings, which is arguably instrumental for producing the specific evidence required to argue the type of direct involvement required by the Court’s high standard for proximity. Instead they must build their case on public documents, supplemented with more general expert witness statements. Those can however be easily dismissed as irrelevant to the specific case, as indeed happened in Okpabi. On the other hand, defendants do have all access to those relevant documents, which they can use to their benefit. The Okpabi court’s approach may thus lead to serious equality of arms issues.

A better approach: from general to specific control

A better approach in my view would be the one advocated by Lord Justice Sales in his separate opinion. This would “merely” require that the claimants demonstrate that their case was “more than speculative” (para. 136). The documents discussed by Simon LJ, demonstrating the general control of RDS over the group and its operations would be sufficient to satisfy that test. While they might not be sufficient to eventually win the case on the merits, they provided a substantive context that rendered the claim more than speculative. The evidence could be strengthened by later evidence following disclosure on the argument that RDS also exercised specific control sufficient to satisfy the proximity requirement (see e.g. paras. 161 and 171). Unfortunately, Sales LJ was not joined by the third judge Lord Chancellor Vos.

Perhaps the most important point, however, was made by Sales LJ in his conclusions (para. 172-xi). RDS sought to control certain activities and their accompanying risks for its own interests, which are not inconsequential in terms of financial gain. Now that these activities have resulted in significant harm to others, it seems strange not to address the actor that was in a prime position to prevent those harms. In that context, it seems hardly appropriate to be overly concerned with how bad it would be for the parent company to be under a duty of care for all its subsidiaries’ operations (see para. 206). As the claimants have opted to take the case to the UK Supreme Court, it can only be hoped that some of the deficiencies in the Okpabi appeals decision are remedied later. If Okpabi is adopted as the right approach for assessing a ‘good arguable case’ for a duty of care, the prospects for foreign direct liability cases in the United Kingdom may be in serious jeopardy.

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