Memorandum for the Petitioners | 140
conducted in
the principles
applicable in
human rights
1.
both common law and civil law countries.°° The ICJ distilled
of civil liability into five basic questions, which it found equally
determining whether business enterprises were complicit in
abuses:
Was harm inflicted to an interest of the claimant that is
protected by law?
2.
Did the business enterprise’s conduct contribute to the
3.
Would a prudent business enterprise in the same
circumstances have known that its conduct posed a risk of
harm to the victim?
4,
5.
infliction of the harm?”
Was the risk real and substantial?
Considering the risks, did the business enterprise take
measures that a prudent company would have taken to
prevent the risk from materializing?°™
8.206. On the issue of reasonable foreseeability of the harm, courts hold
manufacturers to an expert standard.
A business enterprise that produces
a product or places it into the stream of commerce is presumed to be fully
informed of the data and science regarding its products and processes,
including any hazards they may pose. Failure to disclose these intrinsic
risks is often a form of false advertising, as consumers are not able to
make informed choices.
8.207.In assessing respondent Carbon Majors’ responsibility for the
impacts of climate change on Filipino people, the Honorable Commission
should take into account the fundamental principles of legal responsibility.
The Commission should consider:
1.
The respondents’ knowledge or notice of potential harms,
including whether it was reasonably foreseeable;
2.
The opportunity to avoid or reduce those harms; and
656 International Commission of Jurists, Corporate Complicity and Legal Accountability, Volume 3: Civil
Remedies (2008), available at https://www.icj.org/wp-content/uploads/2012/06/Vol.3-Corporate-legal-
pdf (last accessed on 12 September 2019), cited in Smoke and Fumes
accountability-thematic-report-2008.
Report, supra note 51, p. 6.
657 Ibid.
658 See Exhibit “TT” to “TT-27,” Printed PowerPoint presentation of Carroll Muffett, entitled “The Legal
and Evidentiary Basis for Holding Carbon Majors Accountable for the Climate Crisis,” slide 17.
659 Ibid.
660 Muffett., C., supra note 141, p. 11.
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