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If you are considering taking legal action to solve a problem, there may be more than one court, tribunal, or other body to which you can bring your claim. It is useful first to prepare an overview of the different options and assess the advantages and disadvantages of each, before deciding where to bring your case.
In some instances, it may even be possible and useful to file complaints in more than one place at the same time. However, be aware that some courts will refuse to hear a case if the same issue is already being considered or has already been decided by another court.
When selecting a court or tribunal for your legal complaint, you may wish to consider the following:
These distinctions are discussed in more detail below.
It is also worth considering the relative time and expense that comes with bringing a claim in different courts. This may influence your choice of the court, or even the country, in which you bring your claim.
a) Legally Binding Courts
Courts and tribunals usually have the power to make rulings which are legally binding, meaning that the party or parties to whom they are addressed must comply with the decision. This means that the ruling can be enforced in civil, administrative, or criminal law cases.
For example, if a court orders a company to pay compensation, the company has to pay, and if it doesn’t, there is usually a procedure enabling the party that won the case to seize the company’s assets, such as its bank accounts or buildings. For more information, see section 2 of “How do I enforce a court order”.
In many systems, the decisions of supreme or constitutional courts have supremacy over other laws which apply in that country. In other words, decisions of that court are capable of changing or invalidating existing laws in that country.
Advantages of binding rulings:
b) Non-Binding Dispute Settlement Bodies
There are also non-binding dispute settlement bodies. These are bodies which can hear a complaint, but they can only issue a non-enforceable recommendation or opinion on how to solve the dispute, rather than a binding ruling. This can be helpful for the parties, but it means that the eventual resolution of the dispute still depends on the goodwill of the parties.
Some examples of non-binding dispute settlement bodies that exist in many countries are:
i) An Ombudsman (sometimes called a citizens’ advocate, people’s defender, human rights commission or similar) who investigates complaints about the functioning of government bodies, often in response to a complaint from a member of the public or a non-governmental organisation.
A complaint to an ombudsman can often achieve some of the wider aims you are seeking to achieve;
A working example is the Zimbabwean Human Rights Commission, which receives hundreds of human rights complaints annually, resolving issues such as land and labour disputes through mediation.
ii) An OECD National Contact Point, to which complaints can be filed about multinationals that do not comply with the OECD Guidelines for Multinational Enterprises.
The Danish NCP recently held a Danish clothing company accountable for failing uphold health and safety standards in its manufacturing plant in Rana Plaza, Bangladesh. Such supply chain irresponsibility contributed to the death of over 1000 workers in the Rana Plaza fire.
iii) An advertising standards body, to which complaints can be submitted about advertising which is misleading or otherwise problematic.
An overview of such bodies around the world can be found here: OECD Guidelines for Multinational Enterprises.
iv) You may also be able to make complaints under a code or complaints procedure of a company you are complaining about, or its parent company or its stakeholders or a trade body or association of which it is a member. Sometimes a company makes claims about ethical standards it adopts, which differ from what is actually does.
Researching this can be worthwhile. If you can publicly point out differences between reality and what is said in advertising or public relations material, you may secure changes in behaviour which can be helpful in achieving your objective.
Advantages of non-binding mechanisms:
Another important distinction is between criminal, civil and administrative courts and tribunals.
This will influence;
a) Civil Courts
Civil courts hear cases between private parties, such as individual persons or companies.
Normally a civil court can;
Each of these can be powerful remedies. Private law PIL actions are often brought in civil courts, as they usually involve allegations of wrongful conduct such as polluting or causing damage to property or health, violent conduct or wrongful taking of land.
In Ecuador, the supreme court ordered Texaco/Chevron to pay damages of $9.5bn to a range of claimants for severe environmental contamination caused by the company.
b) Criminal Courts
Criminal courts hear cases against persons or corporations that are accused of a crime. Criminal offenses are most commonly defined in criminal (penal) code of the country. Usually the case is brought by a representative of the State, such as a public prosecutor or state attorney. In some countries, a private individual or legal entity, usually the victim of a crime, can bring a criminal case. This is called a ‘private prosecution’.
A criminal court can;
Remember, criminal and civil cases are not mutually exclusive, but can be brought simultaneously. They pursue different purposes and have different parties. In some jurisdictions, individual cases can be partly criminal and partly “civil” in nature.
After the destruction of communities by a dam collapse in Brazil, caused by the negligence of Vale & BHP Biliton, Brazilian prosecutors filed a $44bn civil lawsuit alongside criminal homicide charges against the company’s top executives.
c) Administrative Courts
Administrative courts hear complaints against public bodies, such as a state department or ministry, a municipal council, or a licensing or regulatory body. A typical complaint challenges an action (such as a decision to grant a licence or a subsidy) or failure to act, (such as a failure to take action against an unauthorised industrial project).
In the Indian Supreme Court, local farmers successfully challenged the West Bengal government’s decision to acquire farmers’ land for the building of a car manufacturing plant on the grounds it was not for a valid public purpose. This protected their land rights and livelihood.
In many countries, it is not possible to challenge a decision or action by a public body simply because you disagree with it. It is generally necessary to go further, and show that the decision was unlawful, irrational or unreasonable.
d) Constitutional Courts
In some countries, if your complaint is that a law made by the country’s legislative body violates the country’s constitution, you may be able to bring your claim to a constitutional court. This is a court of last resort after all the other courts have been used, but, in some countries, cases can be fast-tracked to the constitutional court if they clearly raise issues of clear constitutional significance.
In some countries, you can challenge a piece of legislation as a preventative measure, without having any concrete case (this is called abstract norm control).
In several countries, the Supreme Court does this work, as opposed to having a separate constitutional court.
In South Africa, the constitutional court has a history of successfully protecting human rights protected under the constitution. For example, in response to the government’s eviction of squatters from an informal settlement, the court ruled the government violated the right to housing and ordered them to implement a co-ordinated program to house those in need.
Which type of court you can bring your case in will depend on the facts of your case and what you wish to achieve.
For example, if you are trying to stop a mine from being built:
Once you have decided what type of body you want to bring your claim to, a separate issue to consider is what system of law applies to a claim.
In some cases, there may be more than one body of law that may apply to the facts. Consider the following examples;
These questions of “applicable law” are very important. Each country has its own rules that determine the applicable law or laws for a given claim or legal action. Your analysis of these will also help you choose which court to file your case.
In the event there are different bodies of applicable law, it becomes a question of where you can practically bring your claim and where it has the best chance of success.
Some national laws in other countries have extraterritorial effect, applying to activities beyond the borders of that country. In practice, this means the activities of a company operating outside the country in which it is headquartered could be held accountable in that country. Therefore, the solution to a problem that the company has caused in Uganda or Honduras may lie in bringing an action in New York or Amsterdam.
In the US, the Alien Tort Claims Act 1789 has enabled courts to hear civil cases against persons and companies who have committed grave human rights abuses abroad.
This has been used by Paraguayan citizens to obtain reparations against a former Paraguayan police chief who had tortured and murdered a member of their family.
This has been used by Burmese villagers to obtain reparations from a US coal company regarding its alleged complicity in practices of forced labour, violence and exploitation relating to the construction of a pipeline in Myanmar. See the video below for further details.
Similar mechanisms also exist in the Netherlands, the UK, and Australia, among others.
Bringing your claim in a court in another country can be beneficial when;
If these conditions exist, bringing your claim in another country can be an effective way to get a desirable solution to your claim. It will require a good mix of creative thinking, and lots of help from international networks.
Shell Oil’s Human Rights Abuses in the Niger Delta
In the oil rich region of the Niger Delta, Nigeria, Shell Oil have been alleged of systematically engaging in human rights abuses against local peoples and destroying their livelihoods through severe environmental destruction.
Due to the immense economic power of Shell and their close relationship with the corrupt Nigerian government, attempts to achieve justice domestically have failed, with rulings requiring Shell to pay compensation and change their behaviour being ignored by the oil giant.
Therefore, local communities have had to use other legal systems to achieve justice. Despite initial success, the possibility of bringing claims in the USA has been closed by the Supreme court, who require the activities to have a clear link to US territory.
In the Netherlands, claims are allowed to be brought, but have had mixed success.
In the UK, a recent case has succeeded in procuring a £55m settlement from Shell for their abuses.
Through a combination of political activism and the legal pressure placed on Shell in Nigeria and abroad, Shell have now decided to cease operations in the Niger Delta, a victory for local communities.
This shows that often a combination of political and legal actions at home and in other countries must be used to achieve the wider objectives of a PIL case.
In addition to each country’s courts, tribunals and other bodies, there may be international bodies where you can bring a legal case.
a) International Courts
International courts hear disputes on matters of international law. Disputes generally involve claims that a country has breached its obligations under international law.
The International Court of Justice has ordered Israel to stop building walls and settlements in the West Bank, considering it a violation of its obligations under human rights and humanitarian law.
Some international courts are open only to complaints filed by a country. This applies to the International Court of Justice, the World Trade Organization’s Dispute Settlement Body and the International Tribunal for the Law of the Sea, among others.
Other courts are open to individuals. For instance, International Criminal Courts hear cases regarding international crimes committed by individuals.
Currently, the International Criminal Court is investigating a claim by Cambodian villagers that Cambodian elites have been systematically grabbing their land.
b) Regional Human Rights Courts and Commissions
Regional human rights courts and commissions are often a successful way of holding countries accountable for their failure to respect and protect human rights, offering a combination of binding and non-binding mechanisms.
The African Court on Human and Peoples Rights recently ruled that Kenya violated indigenous people’s right to their land through practices of forced evictions.
However, the feasibility of this option depends on the region you are in situated in. While regional courts exist in Europe, Africa, and the Americas, no comparable system exists in Asia.
c) UN Human Rights Bodies
UN Human Rights Bodies offer a non-binding mechanism where individuals can complain of human rights abuses by their governments and hold them publicly accountable in front of committees.
In addition to the UN Human Rights Council, most human rights treaties offer effective complaint procedures through their Optional Protocols.
The Committee on the Elimination of Discrimination Against Women have regularly held countries accountable for gender discrimination, including for their failure to protect women from domestic violence.
A limitation of many of the above mechanisms is that they can often only be used if claimants have tried all feasible options to win the case at the national level (the requirement of ‘prior exhaustion of domestic remedies’).
However, some international bodies will accept a complaint from an individual, community or non-governmental organisation without the need to take legal action at the national level first. Some examples:
i) Most international financial institutions, like the World Bank or the Inter-American Development Bank, have an accountability mechanism.
For instance, the World Bank Inspection Panel is a forum where people who are negatively affected by World Bank financed operations can complain directly to an independent accountability mechanism.
This mechanism was used by community leaders in India whose land was being polluted and who were being forcefully resettled due to a World Bank development project. Upon complaining to the World Bank’s inspection panel, they succeeded in changing World Bank policy and forcing them to implement additional safeguards within the project.
ii) The ‘Special Procedures’ of the UN Human Rights Council are independent human rights experts who may investigate reports of human rights violations that fall within their area of expertise, and may apply pressure publicly or behind the scenes if they feel that a violation is taking place.
iii) Some regional courts, such as the ECOWAS Community Court of Justice, can be approached directly without going through national courts.
This was recently demonstrated in Nigeria where a woman, subject to domestic violence at the hands of a policeman, has succeeded in bringing her case directly to the ECCJ on human rights grounds as local Nigerian authorities refused to take her claim forward.
Individuals can also sometimes take legal action against international bodies. Traditionally only States could hold international bodies to account, but this is slowly changing. The Global Administrative Law Project provides further information on such possibilities.