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The Road to Song Mao: Transnational Litigation from Southeast Asia to the United Kingdom

  • Mahdev Mohan (a1)

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Anxieties about the U.S. Supreme Court's decision in Kiobel v. Royal Dutch Petroleum Co. should not eclipse the fact that redress can, and at times should, be secured elsewhere. Amajor effect of Kiobel is to adjust the aperture of transnational corporate accountability away from the United States–which generally has been the default venue–and toward regional and foreign jurisdictions where violations occur or where responsible beneficiaries of the wrongdoings reside or conduct their businesses.

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References

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1 Kiobel v. Royal Dutch Petroleum Co., 133 S.Ct. 1659 (2013).?

2 Statement of Claim, Song Mao v. Tate & Lyle Indus. Ltd., Claim No. 2013, Folio 451 (EWHC (Comm), Mar. 28, 2013) (QB), available at http://www.business-humanrights.org/media/documents/tate-lyle-particularof- claim-28-mar-2013.pdf [hereinafter Song Mao SoC].

3 28 U.S.C. §1350.

4 Song Mao SoC, supra note 2, para. 11.

5 Kuch Naren, Thai Representative Meets with Koh Kong ‘Blood Sugar’ Families, Cambodia Daily, Feb. 28, 2013, at http://www.cambodiadaily.com/archive/thai-representative-meets-with-koh-kong-blood-sugar-families- 11884.

6 Song Mao SoC, supra note 2, para. 6.

7 Id., para. 8; see also David Pred, Bridges Across Borders Cambodia, Bittersweet: A Briefing Paper on Industrial Sugar Production, Trade and Human Rights in Cambodia 2 (Briefing Paper, Sept. 2010), available at http://bab cambodia.org/developmentwatch/cleansugarcampaign/bittersweet.pdf.

8 Song Mao SoC, supra note 2, para. 30.

9 Id., paras. 1, 23–27, 32–33.

10 Defence & Counterclaim of the First and Second Defendants, Song Mao v. Tate & Lyle Indus. Ltd., Claim No. 2013, Folio 451 (EWHC (Comm), May 2, 2013) (QB), available at http://www.business-humanrights.org/ media/documents/tate-lyle-defence-counterclaim-2-may-2013.pdf.

11 Joel Brinkley, Private Property, Public Greed in Cambodia, Politico, May 6, 2013, at http://www.politico. com/story/2013/05/lawyer-works-to-put-end-to-cambodia-land-grabbing-90985.html.

12 “No nation has ever yet pretended to be the custos morum of the whole world.” Kiobel v. Royal Dutch Petroleum Co., 133 S.Ct. 1659, 1668, 1674 (2013) (quoting United States v. La Jeune Eugenie, 26 F.Cas. 832, 847 (C.C.D. Mass. 1822) (No. 15,551)).

13 Vava v. Anglo American South Africa Ltd., [2013]EWHC 2131 (QB), available at http://www.bailii.org/ew/cases/EWHC/QB/2013/2131.html.

14 Id., para. 76 (concluding statement in decision by Justice Andrew Smith).

15 Several leading Cambodian civil society organizations (CSOs), including Equitable Cambodia, Cambodian Human Rights and Development Association (ADHOC), Cambodian League of the Promotion and Defense of Human Rights (Licadho), Citizens Commission on Human Rights (CCHR), and Community Legal Education Center (CLEC), have worked in concert with villagers to document human rights abuses related to the Land, and these organizations advocate for corporate accountability.

16 Asean Secretariat, Asean Political-Security Community Blueprint (Mar. 1, 2009), available at http://www.asean.org/communities/asean-political-security-community.

17 Makau Mutua, Standard Setting in Human Rights: Critique and Prognosis, 29Hum. Rts. Q. 547, 587 (2007).

18 Press Release, Office of the High Commissioner for Human Rights, Next Two Years Key to Human Rights Development in Asean Region—UN Human Rights Chief (Nov. 28, 2011), available at http://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID!11649 & LangID !E.

19 Asean Human Rights Declaration, princ. 5 (Nov. 18, 2012), available at http://aichr.org/documents.

20 See Universal Declaration of Human Rights, Art. 8, GA Res. 217A(III), UN Gaor, 3d Sess., Resolutions, at 71,UN Doc. A/810 (1948), available at http://www.un.org/en/documents/udhr; European Convention for the Protection of Human Rights and Fundamental Freedoms, Art. 13, Nov. 4, 1950, ETS No. 5, 213 UNTS 221 (as amended by Protocol No. 11, Nov. 1, 1998, ETS No. 155); American Convention on Human Rights, Arts. 25, 63, Nov. 22, 1969, 1144 UNTS 123; Protocol to the African Charter on Human and Peoples’ Rights Concerning the Rights of Women in Africa, Art. 25, July 11, 2003, OAU Doc. CAB/LEG/66.6.

21 See Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, GA Res. 60/147, Annex, UN Doc. A/RES/ 60/147 (Dec. 16, 2005), available at http://www.ohchr.org/EN/ProfessionalInterest/Pages/RemedyAndReparation.aspx; see also Andrew Clapham, Human Rights Obligations of Non-State Actors 63–69 (2006).

22 Kiobel v. Royal Dutch Petroleum Co., 133 S.Ct. 1659, 1671 (2013) (Breyer, J., concurring).

24 Kingdom of Cambodia, Land Law, Art. 5 (2001), available at http://www.opendevelopmentcambodia.net/ pdf-viewer/?pdf!/law/en/Law-on-Land-2001-E.pdf [hereinafter Land Law].

25 Id., Arts. 58, 59.

26 Kingdom of Cambodia, Economic Land Concessions, Sub-Decree No.146 ANK/BK (Dec. 27, 2005), available at http://www.cambodiainvestment.gov.kh/sub-decree-146-on-economic-land-concessions_051227.html.

27 Song Mao SoC, supra note 2, para. 14.2.

28 Id.

29 KSLowns 70% of the Cambodian subsidiary companies and has effective control over operations in Cambodia and receives 100% of the processed sugar from the two Cambodian land concessions. See CLEC Press Statement, International Sugar Companies Implicated in Cambodian Land Grabbing ( July 24, 2012), available at http:// terra0nullius.wordpress.com/resources/2012-resources/2012-07-cambodia-ngo-statement-on-koh-kong-trial.

30 National Human Rights Commission of Thailand, Findings of the Subcommittee on Civil and Political Rights of the National Human Rights Commission of Thailand on the Koh Kong Sugar Cane Plantation Case in Cambodia, at 3 ( July 25, 2012), available at http://www.business-humanrights.org/Links/Repository/1013888.

31 Report of the Special Rapporteur on the Situation of Human Rights in Cambodia, Surya P. Subedi, A Human Rights Analysis of Economic and Other Land Concessions in Cambodia, para. 195, UN Doc. A/HRC/21/63/ Add.1 (Sept. 24, 2012).

32 The claimants are represented by Stephen Brown of Jones Day and barristers at Fountain Court. All are acting pro bono. See http://www.fountaincourt.co.uk/news/detail/song-mao-and-others-v-1-tate-lyle-sugar-industriesand- 2-t-l-sugars-limited.

33 See Song Mao SoC, supra note 2, para. 17 (stating thatT&Lhas been put on notice of the claimants’ allegations since July 2010).

34 Land Law, supra note 24, Art. 95; see also Song Mao SoC, supra note 2, paras. 7, 23–33.

35 Kiobel v. Royal Dutch Petroleum Co., 133 S.Ct. 1659, 1665 (2013) (quoting Sosa v. Alvarez-Machain, 542 U.S. 692, 732 (2004)).

36 Song Mao SoC, supra note 2, paras. 26–27, 33.

37 Id., paras. 28–33.

38 A copy of the letter of complaint submitted by a group of ten Cambodian and international CSOs is available online at http://www.equitablecambodia.org/newsarchives/open-letter.php [hereinafter Complaint Letter].

39 See European Union Generalized System of Preferences, Council Regulation (EC) No. 732/2008, 2008 O.J. (L 211) 1, available at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri!OJ:L:2008:211:0001:0039:EN: PDF.

40 Id., Art. 17; see also Complaint Letter, supra note 38; Report of the Special Rapporteur, supra note 31, para. 194. The EU trade commissioner and the EU high representative for foreign affairs and security policy have reportedly replied to the complaint, inter alia, as follows: “‘If the legal conditions for the activation of withdrawal procedures set out in the GSP regulation are met, the Commission will be ready to take action if this appears to be the case.’” Zsombor Peter, EU Won't Investigate Land Concessions, Cambodia Daily, May 20, 2013, at http:// www.cambodiadaily.com/archive/eu-wont-investigate-land-concessions-for-now-25194 (quoting joint response of the trade commissioner and high representative).

41 See Organisation for Economic Co-Operation and Development, Guidelines for Multinational Enterprises (2011), available at http://mneguidelines.oecd.org/text.

42 See U.S. Dep't of State, Bureau of Econ. & Bus. Affairs, Press Release, Community Legal Education Center of Cambodia (CLEC)/EarthRights International (ERI) and American Sugar Refining Inc. (ASR) ( June 20, 2013), available at http://www.state.gov/e/eb/oecd/usncp/links/rls/210970.htm.

43 Id.

44 Id.

45 Sean Teehan, Sugar Industry Monitor Drops UK's Tate & Lyle amid Koh Kong Charges, Phnom Penh Post, July 18, 2013, at 5, available at http://www.phnompenhpost.com/national/sugar-industry-monitor-drops-ukstate- lyle-amid-koh-kong-charges.

46 Statement by Ve Wong Corporation in Response to the Business&Human Rights Resource Centre's Inquiry Regarding Alleged Human Rights Abuses and Land Seizure by Sugar Companies in Cambodia ( July 18, 2012), available at http://www.business-humanrights.org/Documents/CambodiaCleanSugar2012.

47 Roundtable Discussion: Investment Projects and Land Concessions (Koh Kong City Hotel, Apr. 12, 2013) (on file with author).

* I am very grateful to the Rockefeller Foundation's Bellagio Center, where this article was written and first presented, and to the other Bellagio Fellows for their valuable comments. I am also grateful to my colleague Professor Locknie Hsu for her insightful comments.

The Road to Song Mao: Transnational Litigation from Southeast Asia to the United Kingdom

  • Mahdev Mohan (a1)

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