As previously reported, the victims of a disastrous fire in a Pakistani textile factory have sued Kik, a German textile retailer, in the District Court (Landgericht) Dortmund for damages. The German textile importer allegedly was one of the major customers the textile factory. The action was commenced in March 2015, and supported by a German NGO. Earlier this week, the court issued its judgment in this matter and dismissed the action.
Back in August 2016, the court had ruled it had jurisdiction to hear the matter. Furthermore, it had granted legal aid to the Pakistani plaintiffs and thus enables the action to proceed. The standard that has to be met in order to obtain legal aid under Section 114 German Code of Civil Procedure (ZPO) meant “that the action they intend to bring […] has sufficient prospects of success and does not seem frivolous.”
The court’s conflict of law analysis, applying Article 4 para 1 Rome II Regulation, lead to the application of Pakistani law. Since the defendant had invoked the statute of limitation under the Pakistani Limitation Act 1908, the court obtained an expert opinion from a professor of law at the University of Bristol on Pakistani law. On that basis, the court found that the any claims would have become time-barred under Pakistani law two years after the incident at the latest. Since the fire occurred in September 2012, filing the action in March 2015 was too late. On that basis, the claims were dismissed. The court held that the two-year limitation period may be on the short side, but since the standard limitation period under German law is only three years, it was not that far off that the application of Pakistani law had to be refused on the basis of public policy (ordre public). For a case note arguing to the contrary, see Michaela Streibelt’s comments at Legal Tribune Online.
There are two points worth noting: On the one hand, the fact that there is an initial willingness of the German courts to entertain claims of this nature, as there is in the Peruvian farmer’s case against RWE, and to approach them substantively, rather than just on a jurisdictional basis. Secondly, it is somewhat unfortunate that the court did not have an opportunity to opine on other issues raised in this lawsuit, in particular on the relevance, if any, under German law of a Code of Conduct agreed between the defendant as the customer of the Pakistani textile factory with its Pakistani supplier.
District Court (Landgericht) Dortmund, judgment (Urteil) dated 10 January 2019, filo no. 7 O 95/15.
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