This blog post is by James Pickering, Head of 12 KBW’s International & Travel Law Team.
It will not have escaped the attention of our readers that, in Municipio De Mariana v BHP Group (UK) Ltd & Anor [2025] EWHC 3001 (TCC), the Claimants in the Fundão Dam Litigation staged a truly remarkable comeback, escaping the abyss of strike-out via the Court of Appeal and ultimately securing a victory on the merits before O’Farrell J.
This blog post is not about the factual background or the procedural history, as interesting as those are. Nor is it about the reasoning in the liability judgment, which has been analysed by many other commentators elsewhere. Nor is it about the Claimants’ reported request for an interim costs order of £113m. The point is to highlight some interesting nuggets in the 1,129-paragraph judgment that may assist you, our readers, when the next cross-border claim arrives on your desk.
Practical measures in complex cross-border cases
Although mentioned only in passing, the judge’s description at [77] gives an insight into some of the modern practical arrangements that can be made to ensure that sophisticated cross-border proceedings run smoothly:
“The Court had the benefit of an electronic document system, displaying documents in English and Portuguese, with simultaneous translation services for those witnesses giving their evidence in Portuguese, so that the written and oral evidence could be followed in English and/or Portuguese. Facilities at the Business and Property Courts, Rolls Building in London included an overflow court to which the hearing was transmitted for those who wished to attend the hearing. Live links for remote observation were provided to centres set up by the lawyers in Brazil for the parties, as well as to other remote observers who provided their details and applied for access to the hearing. Notwithstanding the geographical and language barriers, these arrangements enabled many of the Claimants and other interested parties, who wished to follow the hearing, access to the same.”
Proving and applying foreign law
In complex litigation, it may be justifiable for the parties to instruct multiple foreign law experts, each dealing with discrete issues of foreign law. For example, the issues of environmental law, civil law, prescription, waivers and releases, standing, and licensing law, did not all have the same pairs of foreign law experts: see [80]-[87]. The question for the litigator approaching a case management hearing will probably be whether there are distinct areas of law requiring bespoke expertise. It may help to have evidence from at least one expert that they are only qualified to comment on area X rather than area Y.
In the case of disputed questions of foreign law, the task for the trial judge is to determine what the highest relevant court in the foreign legal system would decide if the point had come before it: Perry v Lopag Trust Reg [2023] UKPC 16 at [38]. That also involves an understanding of the rules of interpretation or construction that the foreign court would apply in order to ascertain the meaning and application of any legal instruments to the facts of the case: Mariana at [236].
As to what the English judge is actually doing, it is worth remembering that their role is not to determine issues of foreign law as a matter of law; it is to determine what has been proved as a matter of fact based on the legal opinions and materials supplied in the specific case. O’Farrell J commented on this at [1096]-[1097]:
“The issue is whether the capacity of the Municipalities to bring proceedings for damages is restricted to domestic proceedings in Brazil and does not extend to foreign proceedings, by reason of the Constitution.
It should be emphasised that the role of this Court is not to determine the issue as a matter of law, no doubt to the relief of the Brazilian constitutional lawyers. The role of this Court is to determine the issue in accordance with Brazilian constitutional law, proved as a matter of fact, by reference to the expert evidence of Professor Sarlet and Professor Tepedino and the legal materials identified by them.”
Corporate responsibility
One of the liability issues under Brazilian law concerned the direct or indirect responsibility of BHP (together with Vale) for the activity of Samarco, a distinct legal entity that operated the Fundão Tailings Dam. The judge’s reasons for finding that BHP was responsible for Samarco’s activities (which she summarised at [523]-[532]) are analogous to the analysis concerning Vedanta-style corporate assumptions of responsibility. It is worth flagging the headlines:
- Although they were separate companies, BHP and Vale “were the ultimate owners, controlling shareholders and the directing mind of Samarco.”
- Appointments to Samarco’s Board were determined by BHP and Vale. “The Executive Board was subservient to the will of the Samarco Board and, therefore, subservient to the will of BHP and Vale.”
- BHP and Vale used their membership of committees and sub-committees to exercise factual control over Samarco. They “were involved in the activities of Samarco at every level, from strategic decisions and dividend shares to detailed operational matters.”
- BHP assumed responsibility for risk assessment, control, mitigation, and management within Samarco. It carried out “financial and technical audits of Samarco’s operations, the findings of which were reported to, considered and monitored by, BHP”.
- “BHP exercised control over Samarco’s activities, including its short and long-term strategy, investments, production, financial and technical risk assessment and management through the audit process, funding arrangements and the payment of dividends.”
- BHP participated and was involved in Samarco’s activities by reviewing, approving, and funding them, as well as monitoring and procuring the management and execution of certain projects.
- Lastly, it was significant that Samarco was an asset in which BHP substantially invested and from which it derived substantial financial and commercial benefits.
No surprise, then, that BHP bore ultimate responsibility for Samarco’s activities.
Limitation
The Defendant complained that the statements of case did not include sufficient information, as required by Brazilian law, to stop time running. At [821], O’Farrell J made clear that there was a distinction to be drawn here:
“In my judgment, a distinction must be drawn between the substantive rules of prescription, which it is agreed are subject to Brazilian law by reason of Article 15(h), and the procedural rules for effecting valid issue and service of a claim in this jurisdiction, which should be characterised as procedural and therefore fall to be governed by English law, the Civil Procedure Rules 1998 (“the CPR”). There may be cases in which it is unclear whether a specified requirement falls into the category of substantive law or procedural/evidential law.”
O’Farrell J at [823] explained why it was important that the process in accordance with which service is effected should be governed purely by English law:
“English procedural rules governing the commencement of proceedings by the issue and service of a claim form define the fundamental basis on which jurisdiction over the matter is conferred on the court. The service of originating process is the act by which the defendants are subjected to the court’s jurisdiction. Attempts to superimpose the diverse rules of service of foreign courts, as distinct from a requirement that there should be valid service of a claim, would cause uncertainty and procedural chaos.”
In Mariana, regardless of whether English law or Brazilian law applied to the requirements for issue and service of the statements of case, the judge considered that their contents were valid to stop time running for prescription on the date of issue. This followed from a concession of the Defendant’s expert in cross-examination:
“The material complaint made by BHP is that the claim forms stated the value of the claim as being “unlimited” but did not identify a precise figure. In cross-examination, Professor Tepedino agreed that an incorrect or omitted value from a claim form would not be considered a sufficiently serious defect so as to impact on the interruption of prescription.”
But contrast the position in Vilca v Xstrata [2018] EWHC 27 (QB): the contents were not valid to stop time running, since the statements of case as originally served were pleaded in English law and were only converted into claims under Peruvian law (the applicable substantive law) after the expiry of limitation.
This blog post was written by James Pickering.