Ved Bagoandas is a 4th-year LL.B. student at NOVA School of Law. Moreover, he is a Researcher at NOVA Consumer Lab and NOVA Centre on Business, Human Rights and the Environment.
Luiza Rocha is a PhD Candidate in Law at NOVA School of Law and a Research Associate at the NOVA Knowlegde Centre for Business, Human Rights and the Environment.
1. Introduction
The High Court of London’s ruling of 14th of November 2025 against BHP stands as a turning point, not only for the Mariana dam litigation, which in 2025 marked a decade of struggle, but for the broader architecture of private international law. The Court followed the precedents set in the cases Vedanta and Okpabi, opening its doors to claimants who struggled to obtain full redress at home. It transformed itself into a crucial venue for international accountability and represented a decisive shift in the global search for remedies against harms perpetrated by multinational corporations.
Against this backdrop, this blog post examines central elements of the BHP litigation: the factual background of the Fundão dam collapse, the High Court’s reasoning, and the broader implications of the judgment for transnational corporate accountability. It concludes by considering the significance of this decision for future cross-border environmental and human rights claims.
2. The Tragedy and UK-based BHP Group involvement
On the 5th of November 2015, the Fundão dam, located in the state of Minas Gerais in south-eastern Brazil, collapsed. The dam served as a storage facility for mining waste produced during iron ore extraction. Its failure released a vast volume of toxic tailings, causing the immediate death of 19 people, destroying the village of Bento Rodrigues, and contaminating the Doce River system for over 600 kilometres [1].
The disaster was preceded by multiple warning signs of structural instability, including “extensive cracks at the crest… uplift at the toe… saturation… and upwelling with artesian flow” [2]. Evidence indicates that from 2013 to 2015 the dam’s left support structure exhibited persistent leaks, cracking, and waterlogging , together with technical reports identifying similar risks as early as 2009 that repeatedly raised concerns about elevated pore-water pressure and recommended assessment of potential liquefaction [3]. Despite these warnings, the dam continued to be raised, increasing the load on foundations that were already unstable [4].
The Mariana dam was operated by Samarco Mineração S.A., which is a joint venture 50% owned by Vale S.A. and 50% owned by BHP Brasil Ltd. (a subsidiary of the UK-based Group). Under the ordinary principles of corporate law, liability would fall on the entity that directly operates the activity. In this particular case, Samarco Mineração S.A. parent companies such as BHP Brasil Ltd., Vale, and BHP Group, are typically shielded by the corporate veil, meaning they are treated as separate legal entities and are not automatically liable for the conduct of their subsidiaries or joint ventures. This judgment, however, challenges the assumption that BHP Group (UK) was merely a remote investor, with no substantial involvement in the events leading to the disaster. Instead, it opens the possibility that the parent company’s role and oversight may have been sufficiently significant to warrant its inclusion in the scope of potential liability.
Evidence presented in the case, which included emails and internal documents, showed senior BHP Group executives engaging in discussions about CEO appointments, major project approvals, and oversight processes [5]. A BHP risk committee had also identified a “Dam Failure” as a material risk requiring substantial improvement. These materials supported the court’s conclusion that the parent company exercised significant influence over Samarco’s operations and risk management [6]. Although BHP did not directly own the dam, the court found far beyond that of a passive shareholder. It held that BHP was “involved in the activities of Samarco at every level, from strategic decisions and dividend shares to detailed operational matters at Samarco” [7]. As a result, BHP could not rely on the corporate veil where its own conduct and control formed part of the underlying case.
This degree of involvement undermined the narrative of a distant investor and laid the groundwork for a transnational legal dispute. What followed was not only a battle over compensation, but also a broader test of how far multinational corporations can be held accountable outside their home jurisdictions.
3. The Litigation
Litigation first unfolded in Brazil, engaging multiple layers of civil, criminal and administrative responsibility. Civil actions were initiated by public authorities and prosecutors, and the disaster led to a series of class actions, compensation schemes and reparation agreements approved by Brazilian courts (e.g. 20bn CPA and 155bn CPA) [8].
In parallel, the Reparations Agreement (signed on 25 October 2024 and homologated by the Supreme Court on 6 November 2024), committed to providing “full and definitive reparation” [9] for socio-environmental and collective damages. Its approval resulted in the extinguishment of most domestic proceedings related to the dam collapse. However, as the judgement notes, “some, but not all, of the Claimants have agreed to accept compensation under the Reparations Agreement” [10].
Criminal proceedings were also launched. In 2016, the Brazil’s Federal Public Prosecutor’s Office indicted Samarco, Vale, BHP Brasil, and 21 individuals for environmental crimes and homicide. Although several charges were later dismissed or reclassified, the existence of the prosecutions suspended civil prescription periods, preserving victims’ rights for an extended time [11].
Dissatisfaction with the outcomes of domestic mechanisms ultimately led to the first UK lawsuit to be filed in November 2018. The proceedings then advanced before the High Court of Justice, Business and Property Courts of England and Wales, Technology and Construction Court.
The claimants relied on three main arguments to establish BHP’s liability: first, its ownership and control of Samarco; second, its funding of or participation in the harmful activities; and third, the benefit derived from those activities. They further alleged that BHP’s negligence caused the harm, and argued that, as a controlling shareholder, BHP abused its power by permitting activities that posed serious and foreseeable risks to affected communities [12].
The BHP Group (UK) and BHP Group Limited (Australia), as defendants, initially argued all claims should be struck out as an abuse of process on the basis that they were “pointless, wasteful and duplicative” [13]. They alleged that the scale of the claims, pursued in parallel with proceedings in Brazil, would render the litigation “irredeemably unmanageable” [14] for the English courts, and that the claimants had no realistic prospect of obtaining more advantageous redress in England [15]. Moreover, the defendants contended that there was a risk of inconsistent judgments if the English courts were to adjudicate the dispute [16], and that the litigation would place a significant deleterious impact on the scarce resources of the English courts while providing no real benefit to the claimants [17].
Alternatively, BHP England claimed the English Proceedings should be paused according to Article 34 of the Brussels Recast Regulation, that allows a court to stay proceedings where their continuation creates a risk of conflicting judgements with the parallel litigation pending in a non-EU State [18]. In turn, BHP Australia argued that the claims should be stayed on forum non conveniens grounds. This doctrine permits a court to decline jurisdiction where another forum is considered more appropriate to hear the case. In this instance, BHP Australia claimed that the English courts should refuse jurisdiction on the basis that the Brazilian courts constituted the natural forum for the dispute and were better placed to adjudicate the claims, as well as to render justice to the involved parties. This was argued primarily because Brazil was the locus of the tort, Brazilian law governed the claims, and the vast majority of claimants and witnesses resided in Brazil and spoke Portuguese, which could create significant linguistic and logistical challenges in an English trial [19]. In addition, the Brazilian judiciary had already acquired detailed knowledge of the complexities of the disaster, in contrast to the English courts [20]. Finally, the defendant maintained that the claimants could not demonstrate a “real risk” of being denied substantial justice in Brazil, given the existence of both judicial and extra-judicial redress schemes [21].
Although all these arguments were initially accepted at first instance on the 9th of November 2020 (High Court, Technology and Construction Court) [22], they were ultimately rejected by the Court of Appeal in its order of the 8th of July 2022 [23]. In particular, the Court of Appeal understood the High Court was wrong to strike out the claims, stating the proceeding did not constitute an abuse of process as there was no misuse of the court process, and any stay under Article 34 of Brussels Recast Regulation or forum non conveniens was unjustified as the risk of irreconcilable judgments was overstated and the claimants indeed faced a real risk of being denied substantial justice in Brazil [24]. After the Court of Appeal’s decision, BHP sought permission to appeal to the Supreme Court, but permission was ultimately on the 1st of June 2023 [25].
Following the unsuccessful jurisdiction challenge, the proceeding then moved to the merits. Given the scale and complexity of the litigation, the parties agreed to proceed by way of a First Stage Trial in order to determine key issues of liability and defence before addressing entitlement and the quantum of individual claims. The first phase of the trial was heard between October 2024 and March 2025 [26]. On the merits, the BHP Group denied liability. It contented that it was not a polluter under Brazilian environmental law and that there was no causal link between its conduct and the dam collapse [27]. BHP also advanced additional defences, including that the majority of the claims were time-barred by prescription, that claimants who had accepted compensation were precluded from bringing further claims, and that the municipal claimants lacked standing to sue in the UK [28].
4. The Decision
On 14 November 2025, the First Stage Trial concluded with findings concerning the causes of the disaster, and the liability of the BHP Group.
The Court determined that the immediate cause of the Fundão Dam collapse was the liquefaction of the tailings forming the structural component of the dam. As the judgments explained, the “probable mechanism was lateral extrusion of the slimes, causing reduction of lateral confinement of the overlying uncompacted and saturated sands”, which ultimately resulted in liquefaction and collapse [29]. Crucially, the Court held that the risk of failure was foreseeable and could have been prevented had essential safety measures been properly implemented, such as effective drainage, maintaining an adequate beach, and ensuring that weak materials were kept away from the dam’s structural zone [30].
The court further held that BHP is strictly liable for the damage caused by the collapse pursuant to Articles 3(IV) and 14(1) of the Brazilian environmental law, qualifying as a “polluter”. This was based on findings that BHP was aware of Samarco’s activities that gave rise to the collapse and exercised sufficient involvement and control to fall within the statutory definition [31].
Moreover, even if BHP were not found liable under environmental law, it would nevertheless be liable on the basis of fault under Article 186 of the Brazilian Civil Code, as it acted negligently by disregarding signs of instability, failing to carry out recommended safety studies and remediation measures, and imprudently allowing Samarco to continue raising the dam’s height [32].
On the issue of prescription, the Court largely rejected BHP’s argument that the period to initiate the claim had expired in accordance with Article 200 of the Brazilian Civil Code and Article 27 of the Consumer Defence Code, understanding the claims were presented in time [33]. Following the decision on prescription, the court also rejected the argument that some claimants were barred from pursuing their claims because they had previously entered into settlement agreements in Brazil. It held that these agreements are to be interpreted according to the general principles of contractual interpretation under the Brazilian Civil Code, and not Consumer Defence Law, since there is no underlying consumer relationship. The judgment therefore set out principles for determining the scope and validity of settlements on a claimant-by-claimant basis [34].
With respect to corporate law, the Court found that BHP did not owe a direct legal duty to affected communities, noting that corporate duties are internal obligations owed to the company and its shareholders. These duties do not, as a general matter, extend autonomously to third parties. However, this finding did not shield BHP from liability, given its statutory responsibility as a polluter under environmental law [35].
Finally, the Court also rejected the defendants’ challenge to the legal capacity of the municipal claimants. BHP argued that the municipal claimants, which were Brazilian municipalities suing alongside business and affected individuals, lacked legal capacity to sue in England on the basis that they are public authorities exercising sovereign powers. The Court affirmed there are no constitutional impediments that prevent the municipalities from bringing proceedings in that jurisdiction [36], and that the filing of a civil claim for compensation against a private party constitutes an “act of management”, rather than an act of sovereignty [37].
By resolving these first-stage issues, the Court has now opened the way for the next phase of the litigation, scheduled to run from October 2026 to March 2027 and with a potential third-stage hearing in 2028 [38], which will determine the entitlement and quantum of compensation for the hundreds of thousands of claimants.
Overall, this case stands as a landmark example of transnational mass-disaster litigation, illustrating the interaction between corporate structures and international liability. It also demonstrates how an English court can administer a procedurally complex dispute governed by substantive Brazilian law. Importantly, the Court’s conclusion that BHP qualifies as a “polluter” under Brazilian Environmental Law, based on its control, involvement, and economic benefit marks a significant precedent for holding a foreign parent company responsible for environmental harm caused by its subsidiary, cutting through the traditional protections of the separate legal personality doctrine.
5. Conclusion
The Fundão Dam litigation marks a significant shift in the accountability of multinational corporations for transnational harm. By holding that a parent company may be strictly liable under foreign environmental law when it exercises operational control and derives economic benefit, this case signals a move away from the traditional reliance on corporate separateness as a shield against liability. It shows that courts are increasingly prepared to look beyond formal legal structures when the evidence reveals substantive involvement in risk governance and strategic decision-making.
For future environmental and human rights claims, this judgment establishes several critical precedents. First, it demonstrates that jurisdictional barriers are not insurmountable: English courts are willing to adjudicate large-scale tort claims arising abroad when the defendant is domiciled in the UK, even where the dispute requires extensive engagement with foreign law. Second, it reinforces the centrality of foreseeability and risk governance. Companies with global operations must ensure that safety monitoring, and compliance mechanisms are genuinely effective across their global operations, or they may face liability in multiple jurisdictions. Third, it broadens the scope of accountability by linking liability not merely to ownership but also to control, participation and economic benefit, thus paving the way for claims against parent companies in cases involving environmental degradation or human rights violations.
Ultimately, this case illustrates the growing convergence of environmental law, human rights responsibilities, corporate governance, and transnational litigation. It provides a roadmap for claimants seeking redress beyond their home jurisdictions and serves as a warning to corporations that global operations bring with them global responsibilities. As cross-border litigation continues to develop, this judgment is likely to serve as an influential reference point for holding parent companies to account for the conduct of their subsidiaries, underlining that corporate power carries corresponding duties across borders.
Suggested citation: V. Bagoandas & L. Rocha, ‘Corporate Veil Under Siege: BHP Fundão Dam Litigation and Lessons for Future Transnational Claims’, NOVA BHRE Blog, 15 January 2026
[1] Duarte, E. B., Neves, M. A., de Oliveira, F. B., Martins, M. E., de Oliveira, C. H. R., Burak, D. L., Orlando, M. T. D., & Rangel, C. V. G. T. (2021). Trace metals in Rio Doce sediments before and after the collapse of the Fundão iron ore tailing dam, Southeastern Brazil. Chemosphere, 262, 127879. https://doi.org/10.1016/j.chemosphere.2020.127879
[2] Município de Mariana v BHP Group [2025] EWHC 3001 (TCC), pp.35. Available at: https://www.judiciary.uk/wp-content/uploads/2025/11/Municipio-de-Mariana-v-BHP-Group.pdf
[3] Ibid. pp. 29-41.
[4] Ibid. pp. 40.
[5] Ibid. pp. 443; 474.
[6] Ibid. pp. 474, pp. 801–807.
[7] Ibid. pp. 450.
[8] Ibid. pp. 57-69.
[9] Ibid. pp. 65.
[10] Ibid. 69.
[11] Ibid. pp. 831-862.
[12] Ibid. pp. 7;75;386.
[13] Município de Mariana v BHP Group [2022] EWCA Civ 951 – pp. 7(3). https://www.migalhas.com.br/arquivos/2024/10/91A7190B86EEE6_Municipio-de-Mariana-v-BHP-jud.pdf
[14] Ibid. pp. 8(1).
[15] Ibid.
[16] Ibid. 149.
[17] Ibid. 153.
[18] Ibid. 7(2).
[19] Ibid. 8(2)(b); 196.
[20] Ibid. 317(4).
[21] Ibid. 163.
[22] Ibid. 7-8.
[23] Ibid. 143.
[24] Ibid. 179.
[25] Op. Cit. Município de Mariana v BHP Group [2025] EWHC 3001 (TCC) – pp. 73
[26] Ibid. pp. 77
[27] Ibid. pp. 8.
[28] Ibid.
[29] Ibid. pp. 91.
[30] Ibid. pp. 1110-1112.
[31] Ibid. pp. 1113-1116.
[32] Ibid. pp. 801-808.
[33] Ibid. pp.1117-1125
[34] Ibid. pp.1126-1127
[35] Ibid. pp. 636-639
[36] Ibid. pp.1128
[37] Ibid. pp.1101
[38] BHP Group Limited, Update – United Kingdom group action (14 November 2025). https://www.bhp.com/news/media-centre/releases/2025/11/update-united-kingdom-group-action