Andres Fernando Bravo & Ors v Amerisur Resources Ltd

Under Rome II, a foreign rule which sets a time limit for bringing proceedings is a rule of limitation within article 15(h), even if it would be characterised as procedural under domestic law. Colombian caducidad rules therefore fall within the applicable law designated by Rome II.

Whether an English group action is to be treated as a Colombian group action must be determined by applying Colombian law to the nature of the proceedings. The court must respect an express procedural choice where suitable. If no Colombian route has been chosen, the court must determine the appropriate characterisation using the pro homine, reasonable interpretation and primacy of substantive law principles. A parent company’s separate legal personality does not itself preclude liability for its own acts or omissions; liability depends on the pleaded facts.

The claimants, Colombian farmers, sought damages under articles 2341 and 2356 of the Colombian Civil Code for environmental pollution caused by a terrorist oil spill. The parties agreed that Colombian law governed the non-contractual claims under articles 4 and 7 of Rome II.

The court tried two preliminary issues. First, it considered whether the two-year caducidad period in article 47 of Law 472 of 1998 applied, or whether the ten-year prescripción period under article 2536 of the Civil Code applied. Secondly, it considered whether the accepted principles of Colombian company and tort law concerning parent and subsidiary companies precluded the pleaded claims.

1. Preliminary Issue 1: answered “no”. Article 47 of Law 472 was a rule of limitation within article 15(h) of Rome II. Article 15(h) extends beyond rules extinguishing the underlying right and includes rules which bar a remedy. The distinction between substance and procedure was therefore immaterial.
2. The English proceedings were not to be treated as a Colombian group action. The claimants had not invoked Law 472 or expressly chosen that procedural route. The relevant question was whether, applying Colombian law, the proceedings fell to be treated as a group action. The court was entitled to consider the proceedings as they stood at trial.
3. The common-cause and group-size requirements would have been met. The Colombian Constitutional Court had adopted a broad interpretation of common cause, and the claimants’ proceedings could have been brought through either a group or ordinary Colombian action. But treating the claim as a group action would have caused the claims to fail through expiry of the two-year period, whereas treating it as an ordinary action would not. Applying the pro homine, reasonable interpretation and primacy of substantive law principles, it was unreasonable to impose the fatal procedural characterisation.
4. The public-policy issue did not arise. If article 47 had applied, its application would not have been manifestly incompatible with English public policy under article 26 of Rome II.
5. Preliminary Issue 2: the accepted principles of Colombian law were correct. A parent company is not vicariously liable merely because it owns or controls a subsidiary, and separate legal personality remains effective subject to limited fraud and insolvency exceptions. Those principles did not, however, preclude liability based on the parent company’s own acts, omissions or status as guardian of a dangerous activity. The issue depended on the pleaded facts, which had to be assumed true for the preliminary issue. The claims under articles 2341 and 2356 were not precluded.