Key takeaways
English courts open door to foreign claimants
Cross-border claims can proceed if strong corporate links exist.
Parent companies face heightened oversight duties
Active involvement in operations may trigger strict liability abroad.
Environmental risks demand robust governance measures
Failure to manage risks can lead to billion-dollar exposure.
The Background Facts
Ten years ago, on 5 November 2015, the Fundão Dam (“the Dam”) in Southeast Brazil collapsed, releasing more than 40 million cubic metres of liquified iron ore tailings downstream, which killed 19 people and caused widespread devastation to surrounding communities, waterways, land and infrastructure. It has been described as Brazil’s worst ever environmental disaster, with the cost of remediation and compensation estimated to be more than US$30 billion.
The Dam was owned and operated by Samarco Mineração SA (“Samarco”), a Brazilian company jointly owned by Vale S.A. (“Vale”) and BHP Brasil Ltd. BHP Australia is the ultimate parent company of BHP Brasil, and until 2022, operated with BHP UK under a dual-listed structure. In the present case, proceedings were brought against BHP UK and BHP Australia (collectively referred to as “BHP”) as they were connected at the time of the collapse.
There have been numerous proceedings initiated in Brazil and other jurisdictions arising out of the collapse of the Dam, some of which are still ongoing. In November 2018, over 600,000 Claimants issued a claim in England and Wales, all seeking compensation in respect of losses suffered, relying on Brazilian Law principles. It is common ground between the parties that Brazilian law applies.
The High Court decision
On 14 November 2025, the High Court handed down a 222-page judgment in which it was found that the Dam’s collapse resulted from foreseeable structural instability, which proper risk assessment and stability analysis would have revealed. The judgment addresses a wide range of complex issues beyond those summarised in this article, which only focusses on two issues: (1) the standing to sue; and (2) the finding on liability.
Standing to Sue
The Court addressed whether the Claimants had capacity/standing to bring proceedings in England and Wales, given that they are Brazilian individuals and entities seeking remedies under Brazilian law. The decision confirmed that there was no constitutional or procedural impediment under Brazilian law preventing them from suing in a foreign jurisdiction. The judgment also confirmed that there was nothing in English law to preclude foreign Claimants from pursuing claims where a sufficient connection exists.
Liability
The Court held that BHP, alongside Vale, was directly and/or indirectly responsible for Samarco’s activities in owning and operating the Dam because:
Control and Direction: Samarco was controlled and operated by BHP and Vale, who acted as its “directing mind”.
Operational Involvement: BHP was involved at every level, from strategic decisions to detailed operational matters.
Risk Management: BHP assumed responsibility for assessing, controlling and mitigating risks, including auditing Samarco’s operations and monitoring findings through the General Management Committee.
Financial Interest: Samarco was a significant asset for BHP, providing substantial financial and commercial benefits.
As a consequence, BHP was found to be “polluters” under Brazilian Environmental Law and strictly liable under the Brazilian Civil Code for the collapse of the Dam. BHP was not, however, liable under Brazilian Corporate Law, as the relevant provisions do not create a duty directly to third parties.
Notwithstanding the fact that BHP has already confirmed that it intends to appeal the decision, it will be a matter for the second stage trial to determine which category of damage forms the basis of the claims for damages by each of the Claimants.
Key Implications
The judgment serves as a clear warning for multi-national companies to improve their oversight of joint ventures, particularly in higher-risk sectors such as mining, energy, heavy industry and large-scale construction. Failure to implement proper safeguards, as demonstrated in this case, can result in substantial financial liability and involvement in complex cross-border litigation.
This finding is also significant because it reinforces the ability of foreign claimants to seek remedies in English courts for harm suffered abroad, provided there is a meaningful connection, such as a corporate structure linking the defendant to England. It also underscores the courts’ willingness to entertain large-scale, cross-border class actions where jurisdictional and capacity challenges are raised.
How Hill Dickinson Can Help
Our Commercial Dispute Resolution team specialises in handling complex, high-value, cross-border disputes and defence of multi-jurisdictional litigation and arbitration. We have extensive experience in the energy and natural resources sector and work closely with leading industry experts.
Our approach prioritises strategic negotiation and mediation to resolve disputes cost-effectively and efficiently. Where settlement is not possible, we bring significant expertise in court proceedings and international arbitration, ensuring robust representation for our clients.
For further assistance, please contact Amanda Burge or Laura Daly.
You can read the full judgment here.
