The cases referred to in the Red Flags are examples of civil claims and criminal charges drawn from the case law involving companies all over the world (see links to lists of cases below). The principal criteria for selection as an example of a Red Flag risk has been whether the substantive allegations are illustrative of fact patterns which current case law in a number of jurisdictions indicates may give rise to some form of legal action. It is those fact patterns which companies should seek to avoid.
In this sense, a risk of liability is defined here as the potential for litigation. This is not a legal definition, but an operational one intended for use by companies in their risk management.
The Red Flags assume the common principle that everyone is innocent until found otherwise in a court of law. With that in mind, all cases in the Red Flags pamphlet and web site are referred to as examples of liability risk and do not imply any position as to the charges or complaints filed.
The Red Flags assume that the law is evolving. Cases referred to by the Red Flags guide have concluded as convictions, acquittals, and out of court settlements. Several are still ongoing or have yet to move to trial. In practice, these cases are typically very complex substantively and procedurally and include numerous claims and allegations, not all of which may be substantiated. Also, sources of law are complex and will vary across jurisdictions, further complicating the task of drawing lessons from comparisons between jurisdictions.
Where complaints or charges have changed over time, the Red Flags has endeavoured to update the case summary. The following cases are referred to in the Red Flags web site, listed below in chronological order of decision or filing:
- The Netherlands v van Kouwenhoven, 2008
- U.S. v Chiquita, 2007
- U.S. v Baker Hughes, 2007
- United States of America v. Riggs Bank, 2005
- The Netherlands v Frans van Anraat, 2005
- John Doe I et al v. Unocal Corp, 1996-2005
- Belgium v Ossaily and Nassour, 2005
- Prosecutor v. Félicien Kabuga, 2004
- United State of America v James H. Giffen, 2003 – (case continues)
- France v. Elf Aquitaine, 2003
- Dam Kotopanjang (Dam Kotapanjang) Litigation, 2002 – (case continues)
- Bowoto, et. al. v. Chevron, et. al, 1999 – (case continues)
- U.S. v. Krauch, et. al, (The I.G. Farben Case), 1952
- U.S. v. Alfried Krupp, 1949
- U.S. v. Friedrich Flick, 1947
The following web sites include lists of additional cases:
The Business and Human Rights Resource Centre is the most comprehensive online tool for business and human rights. The Centre’s web site includes updates on cases presently being litigated under the U.S. Alien Tort Claims Act and links to company responses.
The Castan Centre for Human Rights, at Monash University has an extensive list of transnational litigation against companies
The Business and International Crimes web site summarises a project that surveyed the laws in 16 different jurisdictions to find out how international crimes create liabilities for business entities. The website also has summaries of the applicable law, a bibliography, and an Executive Summary by Professor Anita Ramasastry and Robert Thompson (Fafo, 2006).
Some of the advocacy oranisations involved in litigation list documentation from the cases they are involved in, for example;