Editor’s note:
Tomáš Grell comes from Slovakia and is currently an LL.M. student
in Public International Law at Leiden University. He contributes also to
the work of the ASSER International Sports Law Centre as a part-time
intern.
This is a follow-up
contribution to my previous blog on FIFA's responsibility for human rights abuses
in Qatar published last week. Whereas the previous part has examined the lawsuit
filed with the Commercial Court of the Canton of Zurich ('Court') jointly by the Dutch trade union FNV, the
Bangladeshi Free Trade Union Congress, the Bangladesh Building and Wood Workers
Federation and the Bangladeshi citizen Nadim Shariful Alam ('Plaintiffs')
against FIFA, this second part will focus on the Court's ruling dated 3 January
2017 ('Ruling').[1]
Before embarking on
a substantive analysis of the Ruling, it is worth recalling the Plaintiffs'
claims. First, the Plaintiffs requested the Court to order FIFA to redress the
ongoing human rights violations by pressing the responsible Qatari authorities
to abolish the controversial kafala system and ensure that human rights and fundamental freedoms
of migrant workers are preserved ('Claim 1'). Alternatively, they asked the
Court merely to declare the unlawfulness of those human rights violations
('Claim 2'). As regards the monetary compensation, the Bangladeshi worker Nadim Shariful Alam sought
damages of USD 4,000 and a satisfaction amounting to CHF 30,000 ('Claim 3').[2]
The present blog attempts to provide a clear overview of the basis on which the
Court rejected the Plaintiffs' claims and to draw a few concluding remarks
therefrom.
The
Court's reasoning
The Court considers
at the outset of the Ruling that the case at hand immediately proves to be ripe
for a decision.[3]
Therefore, FIFA had not been invited by the Court to express its views before
the Ruling was issued. Pursuant to the Swiss Code of Civil Procedure ('ZPO'), a
court shall verify ex officio the
fulfilment of the relevant procedural requirements[4],
including but not limited to unambiguity of claims[5]
and jurisdiction ratione materiae.[6]
The following subsections of this blog will take a brief look at how the Court
appraised these two procedural requirements.
Unambiguity of the Plaintiffs'
claims
Should a certain claim be considered unambiguous in line
with Swiss rules on civil procedure, it needs to be enforceable[7]
and sufficiently specified.[8]
In respect of Claim 1 (i.e. to oblige FIFA to press the competent Qatari
authorities), the Court states that such claim would not be enforceable, since
''anyone who merely exerts pressure on
something does not redress any susceptible ills.''[9]
The Court is firmly convinced that only the sovereign State of Qatar is
empowered to bring about a direct change in the country's human rights
situation. In addition, the Court finds Claim 1 to be vague, because it does
not specify the Qatari authorities to which FIFA should turn in order to
ameliorate the humanitarian conditions for World Cup-related migrant workers.[10]
In respect of Claim 2 (i.e. to declare the illegality
of the respective human rights violations), the Court is of the opinion that it
does not meet the requirement of being sufficiently specified either. In
particular, the Court argues that the Plaintiffs did not precisely identify
what part of FIFA's conduct should be declared unlawful. According to the
Court's line of reasoning, if Claim 2 were to be admitted, this would
essentially make it impossible for FIFA to defend itself.[11]
Jurisdiction ratione materiae
Based on the above,
the Court considers Claims 1 and 2 inadmissible on account of their ambiguity
and does not analyse whether it may exercise jurisdiction ratione materiae over these claims. Nevertheless, in obiter dicta comments, it indicates that
Claim 1 is more likely to fall within the ambit of public law.[12]
More importantly, the Court does not rule out that a decision requiring a
private association (i.e. FIFA) to interfere in domestic affairs of a sovereign
State (i.e. Qatar) could be potentially deemed unlawful[13],
and that such a decision would consequently negate the Plaintiffs' legitimate
interest.[14]
Given that Claim 3
(i.e. Mr. Alam's request for monetary compensation) is clearly unequivocal, the
Court proceeds to determine whether it has subject-matter jurisdiction to
entertain such claim. The Commercial Courts in Switzerland are endowed with
jurisdiction ratione materiae,
insofar as a commercial dispute within the meaning of Article 6 (2) ZPO is
concerned. A dispute is classified as commercial in accordance with the said
provision, if both parties are registered with the Swiss Commercial Registry or
an equivalent foreign registry and at least one of them exercises a commercial
activity. Article 6 (3) ZPO further clarifies that in a situation where only
the defendant is registered with the Swiss Commercial Registry or an equivalent
foreign registry, the claimant is free to choose between the Commercial Court
and the ordinary court.
Applied to the case
at hand, Mr. Alam relies on Article 6 (3) ZPO, since he does not raise Claim 3
as a tradesman registered either with the Swiss Commercial Registry or an
equivalent foreign (Bangladeshi) registry.[15]
In this regard, the Court also notes that Mr. Alam is not engaged in any kind
of commercial activity.[16]
Perhaps surprisingly, the question of whether FIFA exercises a commercial
activity in terms of Article 6 (2) (a) ZPO turns out to be less straightforward.
Although FIFA generally conducts significant commercial activities, the Court
underlines that ''the exercising of an
alleged power to influence the political system and legal order of a foreign
State and/or the neglect of such influence cannot – even interpreting the term
broadly – be regarded as a commercial activity.''[17]
Consequently, the Court concludes that, in the absence of a commercial dispute
between Mr. Alam and FIFA, it is precluded from adjudicating on Claim 3.[18]
It follows from the
above that the Court draws a rigid demarcation line between what it considers
as being FIFA's commercial activities and its policy influence vis-à-vis World Cup-hosts. However, in
practice, a large share of FIFA's revenue comes from FIFA-organized football
tournaments, the most prominent being by far the FIFA World Cup. FIFA's Financial and Governance Report 2015 indicated that, insofar as the financial year 2015 is
concerned, event-related revenue amounted to 85 % of FIFA's aggregate revenue
(USD 973 million out of USD 1,152 million).[19]
Especially the sale of broadcasting rights for the FIFA World Cup constitutes an
irreplaceable source of FIFA's funding. Moreover, the practice shows also that
FIFA is used to compel World Cup-hosts to modify their domestic laws for the
benefit of tournament's sponsors, a textbook example thereof being the
well-known 'Budweiser Law' which has already been discussed in the first part of this blog. Hence, it seems that FIFA's commercial activities and
its policy influence vis-à-vis World
Cup-hosts are much more intertwined in reality than envisaged by the Court.
A way
forward
Based on the
aforementioned reasons, the Court dismissed the Plaintiffs' lawsuit in its
entirety. The Plaintiffs were entitled to challenge the Ruling before the Swiss
Federal Court within 30 days of its delivery.[20]
For the time being, it remains unclear to us whether the Plaintiffs availed
themselves of the right to appeal the Ruling or not.
It should be
emphasized that the Ruling in question does not imply that FIFA generally
cannot be held accountable for human rights abuses linked to the World Cup in
Qatar. The Court rejected the Plaintiffs' claims on grounds of inadmissibility
and lack of jurisdiction, without pronouncing itself on the merits of the case.
In particular, the Court points out that the Plaintiffs' claims, as they were
formulated, would not be enforceable, because FIFA is allegedly not in a
position to force Qatar to amend the widely criticised labour laws.[21]
That being said, the Court arguably turns a blind eye to the ever-increasing power
of non-State actors in contemporary international relations.
Following the
Court's line of reasoning, the only feasible way for World Cup-related migrant
workers (and trade unions acting on their behalf) to pursue effective legal
redress in Switzerland is to claim damages based solely on the illegality of FIFA's
decision to select Qatar as World Cup-host. An affirmative response given by
the Court to such claim would undoubtedly encourage hundreds of other migrant
workers currently residing in Qatar to follow the same path. Nonetheless,
absent an explicit legal obligation on the part of FIFA to press the relevant
Qatari authorities, it remains questionable how much impact such a decision
would have on the overall human rights situation in Qatar and on those migrant
workers coming to the Gulf country in the future.
Further
implications for transnational corporations
From a broader
perspective, this case represents an example of a transnational private actor
(i.e. FIFA) being sued in a State of its domicile (i.e. Switzerland) for
damages resulting from human rights abuses which occurred in another country
(i.e. Qatar). Taking into account FIFA's global operation and large-scale
commercial activities, an analogy between FIFA and transnational corporations
can be reasonably drawn.
The underlying
purpose of suing a transnational entity in a State of its domicile is to evade
judicial proceedings in developing countries which might prove to be largely
inefficient.[22] In
the United Kingdom, a group of Nigerian plaintiffs has recently sued Royal
Dutch Shell plc
('RDS'), an Anglo-Dutch multinational oil company, and its Nigerian operating
subsidiary Shell Petroleum Development Company of Nigeria Ltd ('SPDC'), for
damages resulting from a severe pollution allegedly caused by the SPDC (and to
a certain extent also the RDS) on Nigerian soil. On 26 January 2017, Mr.
Justice Fraser, sitting as a Judge in the London High Court, dismissed the
lawsuit in question on jurisdictional grounds.[23]
Amnesty International has subsequently denounced the judgment by stating
that it ''gives green light for corporations
to profit from abuses overseas.'' However, less than a year ago, Mr.
Justice Coulson, sitting as a Judge in the same court, decided to grant a forum for claims brought by Zambian
citizens in relation to a massive
water contamination in Zambia arising out of activities performed by Vedanta
Resources plc ('Vedanta'), a global mining company with its headquarters in
London, and its Zambian operating subsidiary Konkola Copper Mines plc.[24]
Mr. Justice Coulson concluded that ''the
claimants would almost certainly not get access to justice if these claims were
pursued in Zambia.''[25]
It has been suggested that Mr. Justice Coulson allowed the case to proceed in
British courts particularly due to a substantial involvement of the parent company Vedanta
with its Zambian subsidiary,
as opposed to more independent regime established between the RDS and its
Nigerian subsidiary SPDC. A decision on the merits is still pending.
The two cases
referred to above demonstrate that extra-territorial human rights violations
are usually triggered by a direct action of a foreign-incorporated subsidiary.
Yet, FIFA's case differs in that the respective human rights violations emanate
rather from a direct (in)action of a sovereign State - Qatar's unwillingness or
inability to set aside its controversial labour laws. Alternatively, it could
be argued that, by reason of its decision to award the World Cup to the Gulf
country, FIFA is complicit in human rights violations triggered by Qatar's
(in)action. That being said, is the difference between FIFA's case and the two
cases mentioned above really substantial? In practice, is not the relationship
between FIFA and Qatar akin to that of Vedanta and its Zambian subsidiary, with
a high degree of direct involvement by FIFA? Be that as it may, the importance
of the Ruling with respect to transnational corporations registered both in and
outside Switzerland cannot be underestimated.