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Where can I take legal action?

If you are considering taking legal action to solve a problem, there may be more than one court, tribunal, or other body to which you can submit your complaint. It is useful first to prepare an overview of the different options and assess the advantages and disadvantages of each, before deciding where to bring your case.

In some instances it may even be possible and useful to file complaints in more than one place at the same time. However, be aware that some courts will refuse to hear a case if the same issue is already being considered or has already been decided by another court.

The bodies to which a legal complaint can be filed can be broken down into a number of different categories based on the type of case they hear, the geographic area where they operate, and the type of ruling they can give. These categories are discussed in more detail below.

1

Binding versus non-binding bodies

Courts and tribunals usually have the power to make rulings which are legally binding, meaning that the party or parties to whom they are addressed must comply with the decision. This means that the ruling can be enforced in civil, administrative, or criminal law cases.

For example, if a court orders a company to pay compensation, the company indeed has to pay, and if it doesn’t, there is usually a procedure enabling the party that won the case to seize the company’s assets, such as its bank accounts or buildings. For more information, see section 2 of “How do I enforce a court order”. [].*

There are also non-binding dispute settlement bodies. These are bodies which can hear a legal case, but in the end issue a non-enforceable recommendation or opinion on how to solve the dispute, rather than a binding ruling.

Implementation depends on the goodwill of the parties. Some examples of non-binding dispute settlement bodies that exist in many countries are:

a) An Ombudsman

(An Ombudsman is also known in some countries as a citizens’ advocate people’s defender or similar). This official investigates complaints about the functioning of government bodies, often in response to a complaint from a member of the public or a non-governmental organisation.

The ombudsman can review the practice of an entire public body, leading to possibilities of addressing structural issues generally, rather than solely dealing with the specific complaint received.

The public nature of the Ombudman’s reports can also help raise public awareness about the problems addressed.

b) OECD National Contact Points

You can address complaints to the OECD National Contact Point  about multinationals that do not comply with the OECD Guidelines for Multinational Enterprises

c) An advertising standards body

Complaints can be submitted to such bodies about advertising which is misleading or otherwise problematic. An overview of such bodies around the world can be found here: OECD Guidelines for Multinational Enterprises.

Bringing a case before a body that issues binding rulings has the advantage that the ruling cannot just be ignored.

However, non-binding dispute settlement is increasingly popular because it tends to be faster, easier and cheaper.

Generally speaking, non-binding mechanisms can be a good choice when your objective is to get a company or government body to the negotiation table to adjust its plans or behaviour and find a solution that is acceptable to both sides.

If you are trying to get compensation for a wrong that has already happened, or if there is no chance that the other side will change its behaviour without a binding order, a case before an ordinary court or tribunal is usually more suitable.

2

Criminal, civil, administrative and constitutional courts and tribunals

Another important distinction is between criminal, civil and administrative courts and tribunals, as explained below.

a) Civil courts

Civil courts hear cases between private parties, such as individual persons or companies. Normally a civil court can order a party to pay compensation, or can issue an order (often called an ‘injunction’) to stop certain conduct.

Private law PIL actions usually involve allegations of wrongful conduct such as polluting or causing damage to property or health, violent conduct or wrongful taking of land. A declaratory order stating that a certain action is lawful or unlawful can be a powerful remedy in its own right despite its limited nature. A civil court cannot send any individual to prison.

b) Criminal courts

Criminal courts hear cases against persons or corporations that are accused of a crime. Criminal offences are most commonly defined in criminal (penal) code of the country.

Usually the case is brought by a representative of the State, such as a public prosecutor or state attorney.

In some countries it is also possible for a private individual or legal entity, usually the victim of a crime, to bring a criminal case. This is called a ‘private prosecution’.

A criminal court can impose sanctions such as a fine or imprisonment. In some countries it can also award compensation to victims of the crime.

Although criminal proceedings are usually brought by state authorities, it is sometimes possible for individuals to institute or procure the institution of criminal proceedings, or for proceedings to be partly criminal and partly “civil” in nature

c) Administrative courts

These courts hear complaints against public bodies. When someone unsuccessfully requests a public body to review an administrative decision, the person can take his or her case to an administrative court.

This is a type of action usually brought against a public body such as a Government or government department or ministry, against a local council, or against a licensing or regulatory body.

That legal action is meant to challenge a decision that is unlawful, irrational or unreasonable. A typical complaint challenges an action (such as a decision to grant a licence or a subsidy) or failure to act, (such as a failure to take action against an unauthorised industrial project).

d) Constitutional courts

Such courts are a way to ensure that the laws made by the legislative body respect the constitution. This is a court of last resort after all the other courts have been exhausted.

In some countries, you can challenge a piece of legislation as a preventative measure, without having any concrete case (this is called abstract norm control). In several countries, the Supreme Court does this work, as opposed to having a separate constitutional court.

Which type of court you can bring your case in will depend on the facts of your case and what you wish to achieve.

For example, if you are trying to stop a mine from being built, you might be able go to a civil court if the mine will cause harm to people living nearby.

You may also be able to go to an administrative court, to argue that there is no valid permit for the mine.

If you have evidence of corruption, you may in addition be able to submit a complaint to the police or a prosecutor, who will then decide whether to investigate the case and bring it to court.

3

National Court in another country

Some national laws have or purport to have extraterritorial effect. The solution to a problem in Uganda may lie in New York or the solution to a problem in Micronesia in the Czech Republic.

Thus successful litigation may need a good mix of creative thinking and lots of help from international networks (of which there are many – see the individual topic guides and item 9 below).

A separate issue to consider is what system of law applies to a claim.

A claim in state X by a claimant who is a national of that state against a defendant who is likewise a national of that same state is likely to be governed by the law of that state.

But often claimant and defendant are from different states. **A claim may be brought to an international or regional tribunal or to a national court in country X by a citizen of country Y against a corporation based in country Y.

The question of applicable law is very important. Each state has its own rules that determine the applicable law or laws for a given claim or legal action. When you decide which law in which country you will use, that will determine in which court you will file your case.

4

National versus international bodies

In addition to the courts, tribunals and other bodies at national level there may be international bodies where you can bring a legal case.

However, there are two important limitations that apply to many of these international bodies, particularly those that can issue binding rulings. These limitations are:

  • Some are open only to complaints filed by a State. This applies to the International Court of Justice, the World Trade Organization’s Dispute Settlement Body and the International Tribunal for the Law of the Sea, among others.
  • Others are open to individuals, but only if they have tried all feasible options to win the case at the national level. (The requirement of ‘prior exhaustion of domestic remedies’). This applies to most international human rights courts in most cases. Many UN Treaty Bodies provide this possibility through the optional protocols to their treaties, enabling people to seek remedy when accessing justice at the national level has been denied or does not exist.

Some international bodies will accept a complaint from an individual, community or non-governmental organisation without the need to take legal action at the national level first. Some examples:

  • Accountability mechanisms. Most international financial institutions, like the World Bank or the Inter-American Development Bank, have an accountability mechanism. For example, the World Bank has a mechanism for people to report corruption or fraud related to the projects it funds or to its staff. People who are negatively affected by a loan made by one of these institutions can complain directly to this mechanism.
  • United Nations Human Rights Countcil: special procedures.  The ‘Special Procedures’ of the UN Human Rights Council are independent human rights experts who may investigate reports of human rights violations that fall within their area of expertise, and may apply pressure publicly or behind the scenes if they feel that a violation is taking place.
  • Individuals can also sometimes take legal action against international bodies. Traditionally only States could hold international bodies to account, but this is slowly changing. The Global Administrative Law Project provides further information on such possibilities.
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