By Suelen Tavares Gil, a qualified lawyer in Brazil who holds a law degree from UFRN, and litigates and advocates for human rights.

Choosing a suitable jurisdiction in transnational litigation demands a complex analysis, especially when there are strategic reasons behind a claimant’s choice, such as guaranteeing the enforcement of a judicial decision.

A recent development regarding the application of the forum non conveniens doctrine in the UK might have consequences for other jurisdictions in the future, considering the robust litigation in one of the world’s largest environmental disaster collective legal actions, Município de Mariana v BHP.

The case

Brazil experienced a huge mining tragedy in 2015, the Mariana Dam disaster, which caused severe human and environmental damage due to toxic mining wastes spread in an avalanche of mud after the collapse of a Dam called “Fundão” in the city of Mariana. The tragedy caused 19 deaths, the destruction of small towns and private properties, the displacement of families, the contamination of essential rivers and soil, the interruption of drinking water supply for an extended period, and a specific myriad of damage to local indigenous communities.

Even though massive litigation happened in Brazil, most victims have not been compensated to this day. The affected areas are yet to be repaired, as the environment still struggles with pollution, according to the latest report concerning water pollution (in Portuguese).

In 2020, the Mariana Dam case was brought to the Royal Courts of Justice, England. The claimants elected the English jurisdiction considering the domicile of the parent company BHP. BHP Australia is also a defendant. In Município de Mariana v BHP case, hundreds of thousands of individuals are seeking £ 25 billion compensation for several damages caused by the mining disaster. Hence, tort law is the tool being used against human rights violations.

Previous litigation in Brazil

Brazil has environmental laws, and there are provisions in the Constitution regarding environmental protection and indigenous people’s rights, including keeping their territories and cultures. Moreover, international environmental treaties are considered human rights treaties, meaning they have a supra-legal status. The Brazilian State and community, which includes businesses, must preserve the environment, so both may be liable in case of environmental damage.

Even though the legal framework is overall positive, in practice, the enforcement of laws sometimes could be more effective. Brazil has a well-developed collective redress system. Collective actions can be proposed by associations or trade unions to benefit a given group of individuals, following a representative system, but also by the Public Ministry and the Public Defensor’s Office, for instance.

In the case of Município de Mariana, litigation was led by several legal actors, both in collective and individual claims.  With massive litigation, they sought not only monetary compensation but actual injunctions through active measures that could bring life back to the contaminated areas.

The main class action on the matter, an “Ação Civil Pública” (ACP), ended up with a type of transactional instrument. As an outcome, a private foundation was created to work as a claim resolution facility to manage compensations and implement social and environmental programs, the Renova Foundation. BHP Brazil, Samarco S.A., and Vale S.A., the Brazilian subsidiary companies, are involved in the claim.

For instance, in March 2023, the Brazilian Federal Justice ordered BHP and Vale to deposit 10 billion Reais in a judicial fund after the poor outcomes of Renova, mainly after discovering affected areas that had not been previously registered. However, on 28 April 2023, the decision was suspended because more accurate technical studies will be necessary to determine the impact on the newly discovered polluted areas.

The transnational litigation

Since Brazilian litigation has not yet guaranteed compensation and reparation for all groups and individuals affected, a large and not heterogenous group of claimants issued a claim against the polluters in the English jurisdiction for the same purpose: compensation for damages. When both parties and claims are the same, it is called Lis pendens, which might be a problem when it leads to different outcomes in different jurisdictions.

First, it is crucial to call attention to the fact that, while Brazil has a civil law system, England is the origin of the common law system, so not only is procedural law very different in each country, but the two justice systems differ from each other in many respects.

This case is interesting from an international law perspective because it happened when the law governing jurisdiction in cross-border disputes in the UK was about to change due to Brexit. As the proceeding started in 2020, the Recast Brussels Regulation No 1215/2012 was applied, but after a transition period, the Hague Convention on Choice of Court Agreements has since become fully applicable regarding jurisdiction and enforcement of judgments.

As a result, the forum non conveniens doctrine came back as expected. According to that legal doctrine, a Court might decline its jurisdiction over a case that can be heard in a more suitable (convenient) jurisdiction, in this case, Brazil.

 In 2020, the English High Court declined its jurisdiction over Município de Mariana v BHP mainly on the ground of unmanageability; consequently, the claim was struck out. Even though his pragmatic decision had already been made, Justice Turner proceeded to analyse each argument in obiter dictum. The decision was not welcomed by the human rights and environmental rights community.

In the decision, Justice Turner highlighted the case’s complexity, with several claimants and a large quantity of material. He also referred to claims in Brazil concerning the same matters (Lis pendens), which could lead to compensation in both countries or even different outcomes. Practical issues, such as foreign languages and translation services, were also mentioned by Justice Turner. The judgment concluded that claimants would not be served with justice in England as its courts could probably not guarantee any different or fair outcome.

In 2022, this judgment was overturned by the Court of Appeal, which concluded that the said unmanageability of the case did not amount to an abuse of process; also, there was no evidence of abuse of process at all. The Court of Appeal also rejected the defendant’s claim concerning the risk of irreconcilable judgments in the two jurisdictions, considering there was insufficient evidence that this would happen.

Furthermore, according to the Court of Appeal, the forum non conveniens doctrine would not be applied in that case because the burden to the UK Court in managing the Município de Mariana v BHP would not imply the Brazilian Court would be a more suitable jurisdiction for the parties. The conclusion was that the Claimants should continue their legal action, which will not be struck out or stayed.

When deciding on the forum non conveniens doctrine, the Court of Appeal applied the Spiliada test (Spiliada Maritime Corpn v. Consulex Ltd, 1987) developed by Justice Lord Goff, which follows two stages. In the first stage, the claimant is supposed to demonstrate that the foreign jurisdiction is appropriate for the trial. There must be a connection between the case and the jurisdiction. On the other hand, the defendants should try to demonstrate that another forum would be more appropriate. In the second stage, there is a balance of fairness in which the claimants’ arguments must be realistic and show why the foreign jurisdiction could provide justice in a way they would not obtain elsewhere.  

BHP England affirmed that the claimants could start another collective redress in Brazil, alternatively to litigating in England or Australia. However, the Claimants highlighted the outcome of litigation in Brazil, mainly the Renova Foundation’s lack of effectiveness until now, despite all efforts. Accordingly, they argued that it would not be reasonable to expect another mass litigation to have a different outcome in Brazil.

The Defendant’s argument was rejected by the Court, mainly considering the timescale involved: it could take a decade and would not bring any certainty to the claimants. The Court of Appeal did not affirm that the delayed proceedings in Brazil are incompatible with substantive justice, but no other reason was given against the suitability of the Brazilian jurisdiction, whose particularities were observed in the judgment. It appears that, for the Court of Appeal, time is of the essence for those seeking justice.

Why does it matter?

As mentioned in this article (in Portuguese), one of the common arguments against transnational litigation is the possibility of multiple proceedings in different jurisdictions that could have different outcomes. The English Court analysed this aspect, but it fell outside the Spiliada test’s scope. In other words, it was not considered relevant to the jurisdiction analysis as substantial justice standards were given precedence.

Only a few places would be better to affirm jurisdiction over a human rights case involving a polluter parent company than post-Brexit UK. The Court of Appeal decision probably came as a surprise, as the former decision had already met the expectations for a claim that, although massive, did not seem as exceptional as the precedent Vedanta Resources plc v Lungow case, 2019, which involved a parent company held liable for environmental damages caused by copper mining in Zambia. Claimants in Município de Mariana v BPH, however, succeeded in demonstrating that the Brazilian jurisdiction would not be adequate to rule over their claims, as the Renova Foundation cannot be relied on as a single solution, and that litigation in England was necessary as a path to access justice.

In the post-Brexit era, if Município de Mariana v BHP becomes a precedent, new cases will show if the Court of Appeal considers time a touchstone of substantial justice in a foreign jurisdiction when applying forum non conveniens doctrine in cross-border litigation.

On a broader level, the Court of Appeal decision could be a  landmark and confirm that environment litigation, especially climate litigation, is a valuable tool for the affected populations, mainly from the Global South.

It may be too early (or bold) to predict Município de Mariana v BHP outcomes. Although not relevant to the forum non conveniens application, the case manageability is still a fair concern or a matter of curiosity about how and when justice will be served to the current 720,000 Brazilian claimants (since May 2023) in the English Court.

Even though Justice Turner described the case as “irredeemably unmanageable”, the Court of Appeal did not address this issue in detail. But a critical hint was given in the appeal judgment: cooperation. When commenting on the case management issue, the Court of Appeal raised the question of group litigation in England, emphasising that the parties have a duty to cooperate. According to the Brazilian Procedure Code, the parties must cooperate when necessary. It is also possible that, at some point, Brazilian and English courts might cooperate.

It sounds inevitable that, during the following proceedings, parties will have to cooperate to solve the case, mainly if the case is successful and enforcement happens. In 2020, as often mentioned in the judgment, Brazilian Judge Mario established the Novel System, a type of online dispute resolution facility for a specific issue concerning water supply. In 2023, the parties agreed that the Renova Foundation would implement a similar mechanism called “Novel Infrastructure” to put an end to individual claims concerning buildings damaged in 2015. The trial, scheduled for 2024, will answer the question of how the English court will manage the largest collective redress in the world.

Photo: the village of Bento Rodrigues after the dam disaster, by Rogério Alves/TV Senado