We have tracked this case in previous posts: In what appears to be the first action of this kind, victims of a fire in a Pakistani textile factory, with the support of an NGO, brought an action against a German textile importer for damages, seeking to establish its liability as part of the supply chain. Kik, a German textile retailer, allegedly was one of the major customers of that factory. The Court of Appeal (Oberlandesgericht) Hamm has confirmed the lower court’s judgment dismissing that action.
As previously reported, the Dortmund District Court (Landgericht) had initially granted legal aid to the Pakistani plaintiffs, and obtained an expert legal opinion on the applicable limitation period under Pakistani law, which it had determined to be the applicable law under the Rome II Regulation. As the court-appointed expert reached the conclusion that any claims under Pakistani law has become time-barred prior to the action having been commenced in Germany, it dismissed the claims in January 2019.
The plaintiffs then files an appeal against the judgment and applied for legal aid for the second instance. The Court of Appeals now dismissed that application, since the appeal did not have any prospects of success. The court held that the first instance court was correct both in the determination of the applicable law and in the determination of the content of the applicable law. It was entitled to rely on the expert opinion it had obtained. The Court of Appeals also upheld the finding that German public policy (ordre public) was not violated by applying a relatively short limitation period of one or two years. Given that the standard limitation period under German law was three years, the deviation was not of an order of magnitude that would allow it to qualify the result is unacceptable from a public policy point of view.
Even though technically, this is only a decision on the application of legal aid, substantively this means that the appeal has failed.
Court of Appeals (Oberlandesgericht) Hamm, order (Beschluss) dated 21 May 2019, file no. 9 U 44/19.