Evidentiary problems and the duty of vigilance

The French duty of vigilance law obliges large corporations to draw up a vigilance plan, and to analyze, monitor, report and act on (the risk) of adverse impacts happening in their value chains. If a corporation fails to fulfil any of these obligations, civil litigation can be initiated aimed at 1) remediating a breach of the duty of vigilance itself, and/or 2) establishing liability for damage that has a causal relation to the breach.

Access to evidence is said to be a barrier for victims of human rights violations taking place in global value chains, when initiating civil litigation in Europe, as well as in France more specifically (see for example here and here). In short, it is said that important information for proving the claim is in the sole control of the corporation, whilst the burden of proof is on the plaintiffs and the rules of civil procedure might not always result in them getting access to the information controlled by the corporation.

During the parliamentary process of the French duty of vigilance law, this barrier was a topic of debate but no measures were adopted. The vigilance plan itself was said to provide plaintiffs with information to initiate a case. This blogpost reflects on this debate after five years of implementation of the duty of vigilance law and its emerging case law.

A lack of information as material proof: a breach of the duty of vigilance

For both causes of action, the plaintiffs will have to prove a breach of a duty of vigilance. Danis-Fatôme and Viney had already suggested that a lack of information in the vigilance plan itself could provide material proof for such a breach. Case law, so far, indeed confirms this.

In the case of SUD PTT against La Poste, the court ruled, amongst others, that La Poste had not described with sufficient precision the risks that it faced and their link with its activities. Based on that, the court also ruled that the procedures for evaluating business relations and the measures to address the risks in that respect were insufficiently identified. The court ordered La Poste to remedy these deficiencies. Moreover, the court stated that “in the absence of proof” that La Poste had consulted relevant stakeholders, alert mechanisms should be added to the plan. A lack of information in the plan thus proved that La Poste was in breach of its duty of vigilance.

A different situation occurred in the case against the Vigie/Suez group. The plaintiffs faced a lack of information in the plan about the exact legal entity within the group that had drafted the vigilance plan and who therefore, according to the plaintiffs, breached the duty of vigilance. On the basis of the court’s ruling in the case, it was feared that a lack of such information could become detrimental to the possibilities for plaintiffs to initiate a successful case. The case was indeed dismissed because the plaintiffs had addressed the wrong defendant.

The court of appeal upheld the inadmissibility of the action but explained that within one value chain there can be more entities that fall within the scope of the law of the duty of vigilance. One could distill from the judgement that if there is only one plan, it will, without indication otherwise, be most likely the parent company or head of the group that drafted the plan. Here, a lack of information is not necessarily proof, but allows an inference about the facts in a particular situation.

A lack of information as material proof: causality

The judgements on the duty of vigilance law rendered so far mainly focus on the first cause of action. How the courts will rule on questions of proof in relation to the second cause of action, which is aimed at the liability of the corporation, is not clear yet on the basis of case law but a point of attention can be flagged here.

The main concern raised, both during the parliamentary debate and by commentators, is whether plaintiffs can prove the (direct) causal link between a breach of the duty of vigilance and the damage that they have sustained. The liability under the duty of vigilance law relates to the damages that could have been prevented if the duty of vigilance had not been breached.

As also explained by Denis-Fatôme and Viney such a direct causal link is generally difficult to prove under French law. They give and example in relation to a corporation placing an order with a factory that does not uphold safety standards (as with the Rana Plaza situation that fueled the adoption of the law). To prove a causal link, plaintiffs would need to know the exact involvement of the corporation with the factory. Plaintiffs might not have access to this information since it is within the control of the corporation.

As Denis-Fatôme and Viney argue, French law does however offer the possibility for judges to use causal presumptions. Based on the use of  causal presumptions in jurisprudence, they argue that causality can be established when the foreseeable risks created recklessly by a corporate activity materialize. In relation to the duty of vigilance they argue that the law envisages the use of such a presumption because it is aimed at the prevention of harm. They argue that a corporation placing an order with a factory without controlling the circumstances within the factory, could create a reckless risk of accidents happening.

This requires courts to rule on the foreseeability and recklessness of certain risks as being created by the activities of the corporation in the concrete situation in which the plaintiffs have sustained damage. Sticking with the example of the factory, this could mean that, based on for example reports of NGOs about the safety standard in a certain country, a court could rule that not controlling the circumstances within a specific factory created a foreseeable and reckless risk for the plaintiffs. This “solves” the problem of access to information if plaintiffs can rely on information that is not solely within the control of the corporation and they do not have to prove the specific order placed by a corporation at the time of the damage for example.

If a corporation has drawn up an adequate vigilance plan, using a presumption of causality in a concrete case seems easiest. Based on the case of La Poste, the corporation would have a sufficiently specified list of risks and their general connection to the corporate activities. Drawing a conclusion about the foreseeability and recklessness of the risk for a specific situation, will then not be very controversial.

If a corporation does not have an adequate plan in place, which is a likely situation if they have breached their duty of vigilance, this would require the courts to take a more active stance in drawing these conclusions. Based on the case law so far, it remains to be seen how far courts might be willing to go into this direction when it comes to causality. In the La Poste case, the court was reluctant to prescribe the exact risks and other measures that should be in the plan, since it is the corporation that knows the specific circumstances of their activities.

A lack of information as a procedural argument

French law does however also offer procedural possibilities to request information from the other party. There are several conditions that need to be fulfilled before a judge will grant the request, such as the necessity of the information for solving the dispute and a likelihood that it exists. The duty of vigilance law may provide arguments for why these conditions are fulfilled.

Turning again to the case of SUD PTT against La Poste, the court did not oblige La Poste to put a list of the names of all its contractors in the plan. However, in relation to a case over liability for damage, plaintiffs could argue that such information is necessary and exists on the basis of the information that is in the vigilance plan. Moreover, the balancing act for making “secret” information available could play out differently in relation to a specific case on liability, compared to having these names generally available to the public in the vigilance plan.

Conclusion after 5 years of implementation

To conclude, there are some indications that in the context of the duty of vigilance law, a lack of information provided in the vigilance plan could provide material proof of certain elements of the claim, as well as a procedural argument for getting access to information. Caution is however warranted, since case law is still developing and it is too early to have a definitive answer to the question to what extent evidentiary problems on the side of the plaintiffs might be solved or will be perpetuated on the basis of the duty of vigilance law when vital information is missing on the side of the plaintiffs. It is up to the court to use its discretion is needed, to further develop the scope of these possibilities.