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I earlier reviewed the jurisdictional ruling in the claim brought by ia members of the Brasilian Quilombola community against Norsk Hydro related corporations. The pleadings this month on the merits reminded me to follow-up on the case and introduced me to a judgment of last May, which I had missed. Hence apologies for late reporting.
The judgment is of interest for the application ia of Rome II‘s rules on statutes of limitation and the burden of proof viz aspects of that statute of limitation. The court is most succinct on it [5.29]: (my translation)
Statutes of limitation are governed by the law applicable to the claim, in this case Brazilian law. The court will therefore assess the defense of prescription under Brazilian (substantive) law, also with respect to the burden of proof. This concerns a material aspect of the law of evidence that the court considers is subject to the lex causae, Brazilian law. (emphasis added)
The para caught my attention for corporate defendants have been known to make a spiel about the implication of the evidence and procedure carve-out in Rome II and its interplay with both Article 15’s ‘scope of the law applicable’ and Article 22’s specific provision for the burden of proof. I am not privy to how extensively the issue was argued in the case at issue.
Here, the court held [5.31] that Norsk Hydro had the burden of proof to show knowledge of the damage, its cause and those responsible for it with a view to the statute of limitation beginning to run, leading to a discussion on whether the pollution was a continuous or single event. As a result of the discussion, [5.36] only a few events were held to be past the statute of limitation.
The judgment does not address substantive reversal of the burden of proof issues under Brasilian environmental law: that I imagine might have been at issue in this month’s heairings.
Geert.