Editor's Note: Raam is currently an intern with the Doing Business Right team at the Asser Institute. He recently received his LL.M. Advanced Studies in Public International Law (cum laude) from Leiden University and has worked at an international law firm in London on a range of debt capital markets transactions
The collapse of the Rana Plaza building on 24 April 2013 in Bangladesh left at least 1,134 people dead and over 2,500 others wounded, while survivors and the families of the dead continue to suffer trauma in the aftermath of the disaster. This first blog of our special series assesses the extent to which litigation and particular "soft" mechanisms have secured justice and compensation for victims and brought the relevant actors – whether global brands or individuals – to account for their alleged culpability for the collapse. To do this, it firstly examines the avenues that have been taken to hold corporations legally accountable in their home jurisdictions for their putative contributions to the collapse on the one hand, and individuals (particularly local actors) legally accountable before the courts in Bangladesh on the other. It then considers the effects of softer mechanisms aimed at compensating victims and their dependants.
1. Tortious actions and home state liability for global brands
It is difficult to view the tortious actions that have been filed to bring the multinational companies sourcing garments from the factories located in the Rana Plaza building (whether directly or through intermediaries) to account in their home states without a deep sense of disappointment. Two of the most salient cases, brought in the US and Canada, arguably demonstrate foreign courts’ reluctance to hold multinational companies liable for tortious wrongs committed overseas, the ostensible rigidity of the applicable tort law to the detriment of victims of the collapse, and the total lack of legal consequence of CSR-based ethical sourcing policies/codes of conduct. These cases are considered in turn.
In May 2016, the Delaware Superior Court in Abdur Rahaman v. JC Penney Corporation, Inc., The Children's Place and Wal-Mart Stores, Inc. granted a motion to dismiss claims of negligence and wrongful death brought in a putative class action, rejecting efforts to bring litigation to the home jurisdiction of the relevant brands. The plaintiffs comprised the personal representative and husband of a worker killed in the collapse and another worker who was injured. The defendants, J.C. Penney Corporation, The Children's Place and Wal-Mart Stores, argued that the claims should be dismissed as they were filed after the expiration of the one-year statute of limitations period under Bangladeshi law and because the plaintiffs failed to allege the existence of a duty of care owed to them.
Applying Delaware's choice of law rules, the Delaware Superior Court rejected the application of US law and found that Bangladeshi law – and its statute of limitations – should apply, thus barring the suit. As per these rules, the Superior Court considered the facts of the case in accordance with the established "most significant relationship" test. According to this test, the injury occurred in Bangladesh, the conduct causing injury occurred in Bangladesh, and the relationship between the parties was centred in Bangladesh – and thus Bangladeshi law (and its limitation rules) should apply. Accordingly, the Superior Court concluded that Bangladesh's Limitation Act 1908, dictating limitation periods for suits filed in Bangladesh, was applicable. On a "plain reading" of the statute, the relevant limitation periods under the act (for negligence and wrongful death, respectively) were each one year and, given that they were both filed two years after the collapse, the claims were time-barred.
The Superior Court also explored issues surrounding the establishment of the duty of care (which both parties agreed was governed by Delaware law) in respect of the negligence and wrongful death claims. The Superior Court agreed with Wal-Mart, J.C. Penney and The Children's Place that no duty of care was owed to workers downstream in their supply chain. Here, the Superior Court rejected the notion that the defendants owed any duty of care to the plaintiffs under Delaware law. The plaintiffs were unable to demonstrate:
(i) the existence of a "special relationship" ordinarily required to establish a duty of care under Delaware law or, excepting this, the operation of the "peculiar risk" doctrine (viz. a special risk particular to the work to be done), particularly given the lack of a direct employment relationship;
(ii) an exception to the general rule protecting general contractors from liability for independent contractors' employees; or
(iii) illegal conduct sanctioned, for example, by way of its sourcing agreements with factories.
No less crucially (and as shall be revisited below in respect of the Das v. George Weston decision), it was not the case under Delaware law that a duty of care could be created by way of an ethical sourcing statement; even if the defendant brands knew or should have known of unsafe working conditions, such a finding could not give rise to a legal duty of care where none already existed.
Accordingly, the Superior Court did not regard the plaintiffs as having alleged a prima facie case for negligence and wrongful death.
The Ontario Superior Court delivered its judgment in Das v. George Weston Limited, dealing with the responsibility of Canadian retailers for the factory collapse, in July 2017. In it, Justice Perell dismissed the $2 billion class action against the Loblaws group of companies and social auditing company Bureau Veritas. The named plaintiffs, three of whom were among those injured and one whose two sons and daughter-in-law died in the collapse, claimed that Loblaws' adoption of its corporate social responsibility (CSR) standards created a duty to protect workers involved in manufacturing products within its supply chain from structural and safety issues. Justice Perell dismissed the motion to certify the proceedings as a class action, finding that no duty of care could be said to exist under Bangladeshi law (which he concluded was the applicable law governing the action under the choice of law rules) or, in case it applied, Ontario law. In the event, no reasonable cause of action could be said to exist and, given the lack of any viable claims, the court was not able to certify the class.
The plaintiffs' main argument in tort was that, knowing of the notoriously dangerous conditions of workplaces in Bangladesh, Loblaws voluntarily took responsibility for ensuring the buildings in which vulnerable employees were producing its garments were "safe and structurally sound". Here, Justice Perell affirmed a "real and substantial connection" to Ontario (given presumptive connecting factors including that the defendants are resident and carry out business in Ontario). Secondly, Justice Perell assessed whether Ontario or Bangladesh law should apply. In doing so, he noted the relevance of the location of the activity causing the harm – the lex loci – in determining the applicable law, and concluded that the harm occurred and the plaintiffs reside in Bangladesh and that a finding to the contrary would create an artificial link to Ontario. Justice Perell also dismissed the plaintiffs' alternative argument that an exception to the lex loci rule should apply in such a way that Ontario should take jurisdiction. Thirdly, Justice Perell considered that it was plain and obvious that the lawsuit cannot succeed under Bangladeshi law (the substance of foreign law being a "factual" question to be determined on the basis of expert evidence and source legal materials); no duty of care had been established between a purchaser of goods and workers employed by an independent subcontractor in Bangladesh, and there was no reason to believe that Loblaws would be found to owe such a duty under Bangladeshi tort law. Finally, Justice Perell concluded that the action could not succeed under Ontario law (in the event that it applies). It would fail the relevant legal test to establish a duty of care requiring foreseeability, sufficient proximity, and the absence of overriding policy considerations, thus negating any prima facie duty.
In a similar vein to Abdur Rahaman v. JC Penney et al., this ruling demonstrates the apparent stringency of the application of the duty of care test at the motion to dismiss stage, as well as the ultimate vacuity and legal inconsequentiality of CSR standards and corporate codes of conduct adopted by global brands. Indeed, in respect of the latter, Justice Perell reasons that policy considerations augured against the recognition of a legal duty of Canadian corporations over workers of suppliers in other countries; such a duty would, Justice Perell argues, deter companies like Loblaws from taking any steps to help workers and effectively punish them for doing such good deeds as instituting CSR policies. David Doorey is rightly sceptical, asking how a company that did little more than "adopt a piece of paper listing standards" could be regarded as carrying out a good deed. While a company can claim to do good deeds, it may well do the opposite in practice. As such, Doorey concludes that there was no real requirement for any meaningful action to protect workers under CSR: "perhaps Justice Perell’s reference to Loblaws’ ‘good deeds’ simply reaffirms how very little we should expect from corporate social responsibility." Other commentators broadly agree, with Agarwal, Beaulne and Schiff, for instance, noting that CSR policies aimed at improving labour standards in offshore factories may not in themselves be enough to bridge the proximity gap between Western brands and workers further down the supply chain (though they leave open the question of whether a more broadly formulated CSR policy would have satisfied the proximity element). Similarly, Lam and Henderson, surmise that tort law has its "limits" in addressing such harms, even as business becomes more globalised.
Taking the two judgments discussed together, it is not difficult to recognise the challenges for class action litigants bringing claims of this type. The rigour with which their claims will be scrutinised and the law applied at an early stage is clear. Agarwal et al. warn of judges' inclinations to conduct detailed appraisals of statements of claim, checking for material facts and whether asserted clauses of action have been artificially characterised to survive preliminary scrutiny. In order to hold multinational companies responsible in their home jurisdictions for practices within their supply chain abroad, it is crucial that plaintiffs demonstrate a meaningful connection between the matter and the relevant country, and consider which laws can be proved through expert evidence. Indeed, these questions concern the very functioning and role of private international law and, as such, it is imperative in transnational disputes like this to assemble an international team of lawyers that is quickly able to anticipate and deal with questions surrounding applicable law and time constraints.
2. Select case law developments in Bangladesh
Certain legal actions have been instituted in Bangladesh aiming to bring individuals to account for domestic criminal and labour law violations in particular. These actions principally concern local actors including building and factory owners and their affiliates and are wholly distinct from the attempts discussed above to hold multinational companies prioritising low costs to account in their home states (and which, in a sense, attempt to tackle systemic/root causes of injustice).
As regards criminal prosecutions, a case alleging construction code violations and illegally adding floors to the building was launched in April 2013 and has been filed against 18 people, including Rana Plaza owner Sohel Rana. Following the last hearing held in March 2016, the case was accepted for trial at the Chief Judicial Magistrate Court in Dhaka. Separate murder charges were accepted against 41 people including Sohel Rana, seven owners of the factories operating in the building, and twelve government officials responsible for safety and inspections. 35 of those charged have since appeared before court and pleaded not guilty. Precise trial dates are difficult to identify and the extent to which these cases have progressed at court is unclear. The first successful criminal prosecution relating to the collapse occurred in August 2017, when Sohel Rana was sentenced to three years imprisonment and fined BDT 50,000 for not submitting his wealth statement to the Bangladesh Anti-Corruption Commission (ACC) in a corruption case before Special Judge Court-6 in Dhaka. Another Dhaka court has framed charges in a separate graft case filed by the ACC against Rana, his parents and seven others. The ACC alleges that Rana had built the Rana Plaza building with illegally acquired money.
Separate Labour Court actions were filed in 2013 against Sohel Rana, the factory owners and other responsible persons before the Labour Court for infringements relating to the failure to give notice of an accident and contravention of law leading to death/grievous harm/harm. Only Rana has been held in prison in connection with these actions, with the remainder either on bail or having failed to surrender to court.
Two public interest litigation cases were filed in April 2013 before the High Court. The first case was meant to establish which government departments were accountable for failings leading to the collapse. The High Court ruled that a Committee should be established to propose compensation criteria for those affected and their families, and, in September 2014, the Committee submitted its recommendation to the High Court that BDT 1,451,000 (EUR 18,400) should be provided as compensation to the family of each dead and missing worker and a further payment of BDT 500,000 (EUR 5,600) should be made as a payment for pain and suffering. Yet, given the lack of any allocation of responsibility by the court for failings and the trivial amounts distributed, it is understandable that prominent Bangladeshi lawyer Sara Hossain regards these "legal" remedies as inadequate and ineffective.
The second case included a request that the assets of the owners of the building and five factories should be frozen. The Bangladesh Bank issued a circular to all banks shortly thereafter to restrict the withdrawal or transfer of monies of the six named owners and the High Court has since rejected the release of funds from Sohel Rana's bank account, though no decision has been made by the court on the utilisation of the frozen assets or the distribution of compensation.
3. Soft mechanisms
The relative failure of avenues taken through the national courts to hold corporations legally accountable in their home jurisdictions and individuals (particularly local actors) legally accountable in Bangladesh should be contrasted with the effects of softer initiatives aimed at compensating victims and their dependants.
a. Rana Plaza Arrangement and Donors Trust Fund
In November 2013, a number of major stakeholders set up the Rana Plaza Arrangement (Arrangement), an independent process set up to establish a credible, transparent and independent system for delivering support to the victims of Rana Plaza, their families and dependants in line with standards enshrined in ILO Convention No 121 (Employment Injury Benefits Convention 1964). Its twin objectives were to: (i) deliver compensation to workers who suffered injury and family members dependent on the income of those killed (as well as access to medical care for victims in need); and (ii) develop guidelines to verify the value and validity of each claim and by providing for individual awards (a demarcation of any kind of responsibility for the collapse lay outside this ambit). Its support from all major stakeholders – including government, manufacturer and employer associations, civil society and global brands – was unprecedented. A representative of the Clean Clothes Campaign at T.M.C. Asser Instituut's recent event, "Five Years Later: Rana Plaza & the Pursuit of a Responsible Garment Supply Chain", remarked on the Arrangement's uniting effects and ability to get every actor to agree on every single parameter in order to address immediate needs, while also meeting the aim of serving as a prototype for other compensation arrangements.
In January 2014, the Rana Plaza Donors Trust Fund was established to finance the Arrangement. The donors of the Trust Fund ranged from global retailers, textile companies to trade unions and NGOs, with Primark providing almost half of the US $30 million estimated amount required to cover the cost of the claims (revised down from US $40 million). Yet it was only in June 2015, a full two years after the collapse, that the target amount was reached and the disbursement of compensation payments to the victims completed.
b. OECD National Contact Points
The Organisation for Economic Co-operation and Development's ("OECD") creation of National Contact Points ("NCPs"), tasked with furthering the "effectiveness" of the OECD Guidelines for Multinational Enterprises ("OECD Guidelines") – a multilaterally endorsed code of business conduct promoted by participating governments on multinational corporations operating in or from their territory – has ostensibly provided a framework for dealing with abuses committed in the garment supply chain in Bangladesh. Adhering states of the OECD Guidelines are each required to set up an NCP, which provides the institutional framework through which stakeholders can bring allegations of breaches of the OECD Guidelines by corporations, including in relation to respect for human rights. Under this "specific instance" procedure, the relevant NCP is able to use its good offices to consult and mediate between the relevant corporation and the complainant party (and has on occasion determined that respondent companies have acted inconsistently with the OECD Guidelines).
Following the Rana Plaza collapse, a number of complaints have been filed to NCPs in respect of business operations in the Bangladeshi garment sector. A complaint concerning a fire in the Tazreen Fashion factory was submitted to the German NCP by a member of the German Bundestag in May 2013. In the complaint, KiK Textilien, C&A and Karl Rieker were accused of commissioning the production of goods at the factory despite inadequate fire safety measures in place, of failing to eliminate negative impacts on the safety of works, and of failing to carry out due diligence to eliminate the impacts of their activities on the health and safety of workers – all in contravention of certain provisions of the human rights chapter of the OECD Guidelines. C&A’s case was later forwarded to the Brazilian NCP since the subsidiary of the company that had business relationships with the Tazreen factory was registered in Brazil. The German NCP considered that the part of the complaint relating to alleged breaches of duties of care with respect to safety measures deserved further consideration and invited the remaining parties for mediation talks; the parties eventually agreed on a settlement, and the NCP noted efforts taken by the parties since 2012 instituting various measures such as the reduction in the number of supplier factories, the establishment of long-term supplier relations with the remaining suppliers, and close supervision of and assistance for supplier factories provided by staff based locally, as well as the signing of the Accord on Fire and Building Safety in Bangladesh. Separately in respect of the C&A complaint, the Brazilian NCP concluded by recognising the success of fire safety measures instituted by C&A but recommended the company continue to promote human rights and decent work conditions in line with the OECD Guidelines and noted that the company failed to respond to complaints regarding C&A's business relationships and supply structures.
The first complaint involving Rana Plaza was submitted by Clean Clothes Campaign Denmark and Active Consumers to the Danish NCP in December 2014, in which it was claimed that PWT Group, a Danish MNE which sourced from a garment factory in Rana Plaza, failed to carry out due diligence in relation to its supplier, New Wave Style. In October 2016, the Danish NCP determined that the PWT Group did not work with due diligence processes to such an extent as to comply with the OECD Guidelines and had failed to require New Wave Style to protect employees' human and labour rights, including by taking measures to ensure health and safety in the workplace. The NCP concluded its Final Statement with recommendations to PWT Group regarding the exercise of due diligence and the adoption of CSR policies in accordance with the OECD Guidelines. In its Follow-up Statement in January 2018, the Danish NCP confirmed that PWT had complied with its recommendations, noting that the company had made changes to its management systems to implement recommendations from the OECD Guidelines concerning due diligence, revised its CSR policy, and engaged in systematically implementing its Code of Conduct among suppliers. It also acknowledged efforts within the company to integrate CSR policies into its organisation; its efforts publicise information concerning access to complain; its cooperation with external stakeholders/networks concerning responsible business conduct; and its work to improve CSR communication.
The most recent complaint concerning the Rana Plaza collapse was filed before the German NCP in May 2016. In their submission, the European Center for Constitutional and Human Rights, victims of the collapse, humanitarian relief and development organisations, and trade unions claimed that TÜV Rheinland, a German social auditing company, and TÜV Rheinland India Pvt. Ltd., its Indian subsidiary, did not comply with minimum professional auditing standards and, in their social audit report, failed to identify major non-compliances with the relevant social auditing standards/code of conduct at a factory in the Rana Plaza complex. These shortcomings concerned the failure to reveal, among other issues such as building structure/safety, serious human rights violations including the presence of child labour, discrimination against women, the absence of trade unions, and forced overtime. The complainants viewed the audit report as the reason why companies did not take effective measures against these abuses, thus contributing to the violation of workers' human rights in contravention of the OECD Guidelines. The complainants are still awaiting an initial assessment from the German NCP.
It is tempting to end with some bromide about the relative success of softer measures in providing victims with a measure of justice and accountability for the collapse. But the truth is that neither of the softer mechanisms discussed have resolutely done so. Though of course welcome insofar as payments have begun to be disbursed to victims who have endured so much, the sums paid under the Rana Plaza Donors Trust were very delayed (being disbursed over two years after the event at an amount significantly lower than originally estimated) and the Arrangement does not demarcate responsibility. Indeed, this was not its intention and care must be taken not to undermine the value of the industry-wide action taken to provide (even token) payments to those affected. But with retailer Primark itself determining the amount of and disbursing much of its payments directly, and with the lack of transparency/disclosure regarding the actual amounts that other retailers contributed, can the amounts distributed in connection with the Arrangement be considered reparative or compensatory? Sara Hossain of Bangladesh and Legal Aid Services Trust was right to say at our recent Rana Plaza event that these awards, which do not apportion any measure of responsibility for the collapse, are not compensatory in the legal sense (or even particularly adequate). The OECD NCP process perhaps shows more promise in terms of imputing responsibility to multinational companies for their role in garment industry abuses in Bangladesh, and mediation appears to be a way of getting retailers and auditors to engage with commitments under the OECD Guidelines. But NCP findings are of course not binding and they have no sanctioning power; indeed, it is telling that in one of the cases discussed, retailer C&A simply ignored (with no apparent consequence) complaints regarding its business relationships and supply chain practices.
Meanwhile, efforts to prosecute and hold actors to account in Bangladesh continue; justice and remediation remain out of reach locally. As these processes trundle on, there is no escaping the inability of hard legal avenues to hold global brands and retailers accountable in their home states. Courts have been thoroughgoing in their application of the law and, perhaps understandably in view of these laws, reluctant to hold multinational companies liable for tortious wrongs committed overseas as a result. They have also made clear the lack of legal consequence attached to ethical sourcing policies/codes of conduct; their vacuity serves to remind us how little we should expect from CSR-based standards and the need to go beyond them if we are to secure justice and accountability for the benefit of victims, as echoed by Nayla Ajaltouni of Collectif éthique sur l’étiquette at our recent event. As it stands, it cannot sensibly be concluded that the legal and soft avenues pursued have dispensed any meaningful sense of justice, compensation or responsibility for the collapse, particularly as they have not brought the relevant garment industry actors – whether global or local – to account.