Summary of Developments:
• Arica v. Boliden: Chilean claimants allege that they suffered harm, including adverse health and environmental impacts, as a result of the negligent dumping and mismanagement of toxic waste in Chile by Swedish company Boliden. Ruling handed down March 8, 2018 in favour of the defendants, but the claimants intend to appeal.
• Swedish Agency for Public Management report (2018) recommends Government implement Human Rights Due Diligence obligations for Swedish companies.
Last updated 8/09/2019
|In a nutshell||In more detail|
|Name of Case||Arica Victims KB v. Boliden Mineral AB.||Arica Victims KB (Company representing over 800 Chileans from the town of Arica alleging moral damages from the negligent actions of Boliden Mineral. During 1984-5 Boliden exported 20,000 tons of toxic mining waste containing high levels of arsenic, mercury, lead and cadmium to Chile, which was subsequently left uncovered and untreated in Arica) v. Boliden Mineral AB (Large multinational mining company headquartered in Sweden).|
|Area of Law||Tort Law||
Tort Law. Against Boliden, the claimants allege negligence in their actions in shipping 20,000 tons of toxic mining waste to Chile.
The defendants contracted out the processing of the toxic mining waste to Chilean company PROMEL. PROMEL was unable to process the waste which subsequently sat near housing complexes, with hundreds of local residents falling ill as a result over the following decades.
The claimants allege that the tortious act can be imputed to Boliden because it did not exercise reasonable care in disposing of its waste, the consequences of its actions were foreseeable, the risk that the damage would occur was high, and the magnitude of damage considerable.In particular, it is argued that the defendant would or should have known PROMEL could not process the waste. This is evidenced in part by the defendant’s patent application made before exporting the waste, in which they claimed only they had the technology to make the waste safe.
|Jurisdiction||County Court of Skellefteå, Sweden.||
County Court of Skellefteå, Sweden.
The claimants argued that Chilean law ought to apply on the grounds that the harms predate the effective date of European treaties that provide uniform "choice of law" rules throughout Europe, so Sweden's "choice of law" rules will be applied. The choice of law should therefore be determined according to the jurisdiction of harm.
The court decided to proceed on the basis of Chilean law, but only the Civil Code's substantive law provisions, and not the decisions of the Chilean Supreme Court, which had relevance to the matter under trial.
|Current Stage||Ruling handed down in favour of Boliden - claimants appealed unsuccessfully||
The case was filed on 12th September 2013 at the County Court of Skellefteå, Sweden.
The trial was held in October and November 2017. Three judges presided over the hearing.
Judgment was handed down on the 8th March 2018 in favour of the defendant, Boliden. The claimants are filing for appeal.
27 March 2019: the Swedish Court of Appeal issued its decision that the action was time-barred, and so refused to examine the merits of the claim. In contrast to the District Court, the Court of Appeal held that the “locus” of the alleged negligence in the claim was in Sweden, rather than in Chile, and so concluded that Swedish law should be applied to the issue. According to Swedish law, a claim becomes time-barred 10 years after the act that gave rise to the alleged harm. As a result of the decision, any legal action in Sweden became time-barred before many of the victims of the toxic dumping were even born.
|Requirement/Result||Ruling in favour of Boliden.||
The claimants request for SEK 90 million in damages, plus interest, was rejected by the court.
Although the Swedish court accepted that Chilean law applied, it did not accept that Chilean Supreme court decisions had precedential influence. Because of this, the court did not accept the two decisions from Chile on harms inflicted by the waste to be governing how the Swedish court should finally decide. Accordingly, the burden of proof to show that the claimants' levels of arsenic amounted to harm was laid with Arica Victims.
The court did not find that the initial agreement between Boliden and Promel was negligent. However, it did believe that Boliden had been negligent in not acting after employees witnessed that the toxic waste had not been covered by Promel.
Despite this, the court did not find that the claimants' levels of arsenic amounted to a definition of harm. There was therefore not sufficient evidence to prove that Boliden's negligence had caused the poor health of the claimants.
♦ Business & Human Rights Resource Center coverage.
♦ Information from Environmental Defender Law Center, an organisation involved in the case.
♦ Academic article on Foreign Direct Liability cases in Sweden, including a discussion of the Boliden case.
♦ Press release announcing the claimants will appeal (25.3.2018).
In 2017 the Swedish Minister for Trade commissioned the Swedish Agency for Public Management to do a United Nations Guiding Principles on Business & Human Rights baseline assessment. The Agency released its report in March 2018 and recommends, amongst other things, that the government look into binding human rights due diligence requirements for Swedish companies, as well as address access to remedy obstacles faced by victims of corporate abuse.