...[T]he Court of Appeal (‘CA’) in England dismissed the case of AAA v Unilever in which victims of ethnic violence claimed that parent company, Unilever PLC (‘Unilever’), and its Kenyan subsidiary, Unilever Tea Kenya Ltd (‘Unilever Kenya’) were responsible for injuries they suffered on Unilever Kenya’s plantation during 2007’s post-election violence. Several aspects of this case...raise important questions from a business and human rights perspective...

...For the case to continue, the court needed to find that the Claimants’ presented a good arguable case...This required the claimants’ to show a prima facie case that Unilever owed a duty of care to the claimants...The High Court judge dismissed the claim on lack of foreseeability but the CA upheld the dismissal while focusing on the lack of proximity.  The CA concluded that there was insufficient evidence to demonstrate that Unilever dictated or advised upon the terms of Unilever Kenya’s crisis management plans...

The standard set by Court raises the threshold for a prima facie case before proceeding to trial. By requiring the Claimants to prove the scope and level of Unilever’s involvement in the Kenyan subsidiary’s risk management, the Court created an insurmountable burden of proof for victims...

This level of proof effectively shields parent companies from any claim arising from subsidiary business.  This appears contrary to the letter and spirit of the UN Guiding Principles on Business and Human Rights (‘UNGP’ or ‘Guiding Principles’), which requires states and businesses to ensure victims have access to adequate and effective remedies...[T]he UK maintains laws that allow for the evasion of responsibility and situations of impunity...