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LIABILITIES OF TRANSNATIONAL CORPORATIONS: EMPOWERING THE STATE COURTS AGAINST EXTRATERRITORIAL WRONGS BY TNCS

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Abstract

Imposing liability for extraterritorial wrongs by the Transnational Corporations (hereinafter TNCs) for violations of international norms can serve as an important relief for the affected parties. It has a considerable impact upon those who have suffered international wrongs by the TNCs. In the absence of any international court or tribunal providing remedies to individuals, the state courts can act as a principal mode of remedy for the claimants. There is a need to establish jurisdiction of the home state courts for accepting litigation against the TNCs for the extra territorial wrongs. The study of current state practice can help us move forward in establishing a more viable state jurisdiction against the international wrongs by TNCs.
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Vol. XLVIII, No. 71 University of Peshawar
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LIABILITIES OF TRANSNATIONAL
CORPORATIONS: EMPOWERING THE STATE
COURTS AGAINST EXTRATERRITORIAL
WRONGS BY TNCS
Muhammad Asif Khan1, Pervaiz Khan2
ABSTRACT
Imposing liability for extraterritorial wrongs by the Transnational
Corporations (hereinafter TNCs) for violations of international
norms can serve as an important relief for the affected parties. It has
a considerable impact upon those who have suffered international
wrongs by the TNCs. In the absence of any international court or
tribunal providing remedies to individuals, the state courts can act as
a principal mode of remedy for the claimants. There is a need to
establish jurisdiction of the home state courts for accepting litigation
against the TNCs for the extra territorial wrongs. The study of
current state practice can help us move forward in establishing a
more viable state jurisdiction against the international wrongs by
TNCs.
1. Introduction:
Imposing liability for extraterritorial wrongs by the Transnational
Corporations (hereinafter TNCs) for violations of international norms
can serve as an important relief for the affected parties. It has a
considerable impact upon those who have suffered international
1Assistant Professor, Department of Law, University of Malakand, Pakistan
2Assistant Professor, Department of Law, Bahria University, Islamabad
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wrongs by the TNCs. In the absence of any international court or
tribunal providing remedies to individuals, the state courts can act as
a principal mode of remedy for the claimants. Moreover, under the
norms of public international law states are responsible for providing
remedies to the victims of any violation of international law.
However, providing remedy to the victims who are aliens (non-
citizens) in cases where a wrong is committed outside the territorial
jurisdiction of a state by its legal entity is highly contentious in many
legal systems. The state laws and the jurisdiction of state courts are
not uniform and differ in such circumstances. The absence of
„meaningful legal redress‟ support the TNCs to exploit lower labour,
environmental and human rights standards in the developing
countries.1
There is currently no international tribunal or forum which deals with
civil remedies for natural persons in cases of any grievances against a
corporation. Some entities for the purpose of arbitration exist, such as
the International Centre for Settlement of Investment Disputes
(ICSID) 2 which facilitates arbitration and conciliation of legal
disputes between international investors; and arbitration and
mediation centre under the WIPO. 3 These arbitration/mediation
tribunals or forums work primarilyto facilitate business and
addressing the problems of the business community through
mediation/arbitration. An arbitration tribunal for settling the issues of
civil nature against the TNCs is proposed recently by the Lawyers for
Better Business (L4BB). 4 The arbitration tribunal is proposed
because of the alleged failure of the state courts to provide adequate
remedy to the aggrieved parties.5 The existing international tribunals
has proven effective as a state interest (mostly financial or policy
based) is also involved in the referring disputes. On the other hand
the proposed tribunal for settling disputes between natural persons
and legal persons would face problems in getting the parties on-board
without state interference. The acceptance of the jurisdiction of the
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tribunal on voluntary basis by the corporations is a highly daunting
task. However, more debate is required on the adoption and working
method of the proposed tribunal.6
The burden of providing remedy against wrongscommitted by the
TNCs lie upon the states under the international legal system.This
includes the home states under the nationality principle and the host
states under the territorial principle of state jurisdiction under
international law. Modes of TNC operations are transnational and in
diverse forms, thereby the issue of an appropriate forum to seek
justice is always a contentious issue. This article highlights the
jurisdiction of the courts within the home states as an appropriate
forum. The issues related with seeking justice at the appropriate
forum are highlighted. It is provided that the access to remedy under
the UN guiding principles on business and human rights can be
materialized through exercising the home state jurisdiction under
nationality principle for jurisdiction within international law.
2. An Appropriate Forum for Litigation against TNCs:
The convenient way of access to remedy for civil wrongs has always
been the domestic or state courts. The plaintiffs may have an access
to multiple state courts to file a suit for remedy against a wrong
committed against them within the jurisdiction of their state.This
phenomenon of seeking a jurisdiction of a court is restricted and
works according to the laws within the legal system of a particular
state. In cases where TNCs are involvedthe jurisdiction of the state
where wrongs are committed may seem an appropriate forum. In
some cases where the TNCs work through subsidiaries the
jurisdiction of the courts cannot be extended to the parent entity. In
such cases the access to remedy in the state courts where the TNC is
operating practically proves difficult. The difficulties include non
availability of a judicial system which is efficient enough to deal with
complex claims involving large group of individuals; non availability
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of legal aids to the complainants and most importantly the insolvency
of the subsidiaries.7Most importantly the limited jurisdiction of state
courts under international jurisdiction principles proves inadequate to
provide remedy. The parent corporation with no direct assets and
legal personality within the host state flees any legal accountability.
In most cases the subsidiaries claim insolvency and thus avoid
damages; they can easily form another entity with a new name and
carry on with their business without paying compensations for their
earlier wrongs. The convenience of seeking remedy within the host
state is more relevant but mostly unfounded in such cases.
In cases where the access to an effective remedy seems complex in
host state jurisdictions, a subsequent option then lies in the domestic
courts of the home states. The nationality principle under the
international law allows the states to make their nationals liable for
wrongs committed outside its territory.This principle is only relevant
when supported by relevant legislation bestowing jurisdiction upon
state courts.There are few instances whereby the courts may derive
jurisdiction to accept a claim against a corporation for the alleged
wrongs committed outside its jurisdiction. One of the state legislation
is the ancient ATCA8 or Alien Torts Statute in the United States
(US), which was not adopted specifically for the purpose of
providing remedies againstTNCs but has been vastly invoked since
Filartigacase (1984) for this purpose.9 As the legislation was not
adopted specifically for the purpose of providing remedies to the
victims of the US based TNCs, thereby it is not specifically fit for
this purpose. The absence of any other legislation within the US
which is more specific makes ATCA the only option of remedy for
overseas claimants. However, the case laws relevant to ATCA open
up a jurisprudential and jurisdictional debate regarding the civil
liabilities of TNCs. Similarly, the Brussels I regulation (which is an
international treaty) is invoked in the European states in cases against
the TNCs of European origin. However, the state courts within the
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European jurisdictions entertain foreign liability claims against
parent organs of the TNCs on rare occasions. For instance, no civil or
criminal liability case involving transnational business operations has
been identified in Denmark;10 Sweden only saw its first civil suit in
2013 whereas Norway have seen no civil liability cases except for
alleged corruption abroad.11
Currently, the state court practice regarding the civil remedies for the
complainants against TNCs from alien jurisdictions needs to be
observed and strengthened before moving towards other options of
remedies. The cases of civil nature based on the law of torts are a
commonality for the state domestic courts, thus they have the
expertise to deal with civil cases involving corporations. The
difficulty in entertaining cases against TNCs has been the lack of
proper legislation, and thereby the lack of specified jurisdiction of the
state courts. Moreover, the enforcement of the decisions of courts
against the TNCs is only possible with the will of the home states.
Thus the forum of the domestic courts of the home states in cases
against the parent organ seems to be an effective option, only if,
relevant legislation is adopted. A claim before local tribunals against
the subsidiary may be less costly, but the local company may have
fewer financial resources for compensation than its parent firm. On
the other hand, bringing a dispute before a foreign court may
generate greater compensation due to the resources available to the
parent firm. The latter option seems longer, complex, expensive, and
uncertain but somewhat rewarding. 12 Thus, to make it more
accessible way of remedy the hindrances needs to be removed
through international co-operation.
The abuses of international law by TNCs go mostly unchecked by the
domestic courts which are constrained by the rules of territorial
jurisdiction.13 The international law related with court jurisdictions is
based upon the preservation of state sovereignty. Thereby, in cases
where acts are committed outside the territorial jurisdiction of a state
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the domestic court jurisdiction is only invoked in cases where the
acts had affected the state sovereignty. Thus, the home states can
control the acts of a TNC (and its subsidiaries) as far as they are for
the protection of their „vital interests‟. 14 However, such actions
cannot be taken if the purpose is related with only policy matters.15
Thereby, the states cannot dictate its TNCs according to its policy
matters; however the home states can provide an effective forum
against any alleged violations of international law outside its territory
by its national. It is more important when the judicial systems of
most of the host states are unable to hold foreign parent entities
liable, the reasons vary from corrupt judicial and administrative
practices to the availability of resources. On the other hand, the lack
of specific legislation in the home states is an obstacle for bringing
complaints against the parent organs of the TNCs. In some cases the
absurdities of law place the domestic jurisdictions in difficult
position, whereas the plaintiffs have multiple forums before which
they might bring claims for compensations creating uncertainties.
Moreover, the command centres of most of the international firms‟
are in home states which indicate that greater compensation could be
obtained before the tribunals having jurisdiction over the parent
firms.16 Plaintiffs, as a result, are faced with a significant dilemma for
accessing appropriate remedies.
3. Establishing Home State Jurisdiction:
The International Law Commission (ILC), in its work on preventing
and repairing transnational environmental harm, has recognized the
need for home states to play a larger role in holding their
corporations accountable. 17 The issue is transnational and comes
under the domain of international law. Specifically, the ILC has said
that “a „state of origin‟ is under an obligation to exercise due
diligence to prevent harm in other states by taking necessary
legislative, administrative or other action.”18 With regard to remedies,
the ILC also notes a role for home states, taking the view that “access
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to justice in state of origin courts is to be provided to affected citizens
of other states in according to the principle of non-discrimination.”19
The courts within the home states have reacted differently to such
cases in the absence of a uniform and specific legislation. For
instance, the US domestic court generated major confusion in the
form of the forum non conveniens doctrine. This doctrine provided
tribunals worldwide with justification not to consider foreign claims
on their merits.20 The courts within the US have taken a differing
approach towards this doctrine. For example, plaintiffs in Union
Carbide brought claims under ATCA for damages after a gas leak
killed more than 2,000 people (and injured more than 200,000) in
Bhopal in 1984.21 Indian courts rejected their claims, reasoning that
US courts would have jurisdiction over parent firms and therefore
would be the best jurisdiction to secure compensation for the
victims. 22 The US Court of appeals, however, upheld the lower
court‟s dismissal for lack of jurisdiction because of the
extraterritorial nature of the case. The court emphasized that Indian
courts being in a “superior position to construe and apply applicable
Indian law and standards” would constitute the most appropriate
forum.23 The decision concluded that the “choice of the United States
as a forum would not be given the deference to which it would be
entitle if this country were their home”,24 and dismissed the claim.
While seven Indian nationals who formerly worked for the Indian
branch of Union Carbide were found liable for death by negligence in
June 2010 by an Indian tribunal, the responsibility of the parent
corporation has not yet been considered. 25 Later, the forum non
conveniens ground has been rejected by the US Supreme Court in the
Wiwa vs. Royal Dutch Petroleum when it reversed a lower court
dismissal.26 Similarly, in other cases like Doe vs. Unocal,27Voth vs.
Manildra Flour Mills Pty. Ltd. 28 and Owusu vs. Jackson 29 the
argument of forum non conveniens has been rejected. It is also
remarked by Prof. Ruggie that the courts around the world will no
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longer accept this plea for no jurisdiction.30 Although the doctrine has
been rejected in some cases, it signifies the vulnerability of the state
judicial systems in cases where TNCs are involved. Thereby, in the
absence of clear transnational litigation rules in this regard, ideas
such as forum non conveniens will somehow manage to prevail. The
abject example of which is the rejection of plaintiff claim because of
the lack of “subject matter jurisdiction” in Kiobel. Moreover, the
states will not take unilateral actions to adopt legislations giving
opportunities to aliens for claiming damages from TNCs of their
origin; this would give unfair advantage to the TNCs elsewhere.31
As mentioned earlier the ATCA in the US has been used for the
purpose of initiating charges against the TNCs. It is not a statute
designed specifically for the purpose of protection of individuals
abroad from the US based corporations. Neither was the act passed to
fulfil the state responsibility to protect under international law. The
ATS dates back to 1789 which was ignored for around first 200 years
of its existence. However, the statute has been tried to use as a human
rights defender within the US for violations that have occurred
abroad involving corporate complicity. It has been argued that the
ATS was adopted by congress for giving a forum to aliens for
claiming damages in limited cases. The fact that the statute was not
specifically designed for this purpose leads towards different remarks
and approach by the US courts. In Kiobel the US court of appeals for
the second circuit ruled that the ATCA cannot be used to sue
corporations for the violations of international law because of the
lack of subject matter jurisdiction.32 The US Supreme Court in April
2013 upheld the decision and questioned the federal court jurisdiction
to hear cases held outside its territorial jurisdiction.33 The decision
limits the scope of future ATCA claims by concluding that victims
may not bring cases for abuses that occurred outside the US, against
a foreign multinational corporation, when the only connection of the
case with the US is the fact that the corporation operates in the U.S.
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The decision said that “there is no indication that the ATCA was
passed to make the United States a uniquely hospitable forum for the
enforcement of international norms”.34 The court also termed ATCA
as a statute of limited jurisdiction thereby a statute more specific
than the ATCA would be required” if the congress is interested in the
extraterritorial liability of corporations working within the
US.35 Similarly, in Sosa it was mentioned that in order to include
TNCs as subjects under the ATCA the US congress must amend the
current act or legislate further.36Citing Kiobel the district court judge
in July 2013 dismissed a case against Drummond Company inc. for
lack of jurisdiction.37 Similarly, in June 2013 a case brought up by
four Iraqi detainees against CACI international (a U.S. Corporation)
for torture was dismissed by a judge at Eastern District of Virginia on
Kiobel grounds.38 The corporate accountability for TNCs has been
rejected by the domestic courts on the grounds that the customary
international law is only admissible to states and individuals (natural
person) but not corporations (legal persons). 39 This argument
however has been rejected by other tribunals. 40 For instance, in
Filartiga v. Pena-Irala the basic human rights protections under
international law were accepted to be based for an ATCA lawsuit.41
Thus, the ATCA itself and then the various interpretations have
created doubts over the validity of this statute for future cases
involving TNCs. The experience of ATCA litigations provides us
with some principles which might be helpful in adopting legislation
on civil remedies for global citizens.
As a common law state the courts in the US decides the jurisdictional
matters under the ATCA; on the other hand the European states
(which include common law states such as the United Kingdom) has
agreed upon common rules for court jurisdiction under the Brussels I
regulation. The member states are bound to accept jurisdiction in
civil liability cases filed against defendants domiciled in the forum
state, irrespective of the nationality of the defendant or the plaintiff,
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and wherever the damages occurred.42 The Dutch court relied upon
the Brussels I Regulation to charge Shell for pollution in Nigeria in a
suit filed by Nigerian citizen.43 Similarly, a London court accepted
charges against a British corporation for its involvement in the
dumping of the toxic wastes on Ivory Coast.44 Thereby, the courts
within the member states cannot refuse to exercise jurisdiction over
companies within EU borders even if the harm occurred outside the
EU and the victim is not a national of an EU state.45 This nullifies the
effect of forum non conveniens argument. According to Article 17 of
the Rome II Regulation, appropriate account must be taken of the
codes of conduct in force in the place of damage. However, it is
unlikely that the defendant will be exempted of liabilities despite
complying with all rules of conduct in the place of damage, if it was
known that they were insufficient. 46 Furthermore, according to
Article 16 of the Brussels Regulation, home state courts may also
apply the principle of „overriding mandatory provisions‟ in national
law instead of host country law.47
Schutter while advising the European states to introduce laws related
with criminal liabilities of TNCs for their extraterritorial acts
suggests that they shall be based upon the active personality
principleof extraterritoriality.48The argument is valid for civil suits
as well, for instance, in Kiobel it is clarified that the corporate
citizens of other states cannot be sued in the US for acts which are
committed in third states. It shall also be advisablein order to avoid
the consistency of cases in one jurisdiction, making an international
court out of a specific state‟s legal and judicial system. Moreover,
most states will not be willing to become a global forum for litigation
brought against multinational firms.49 Secondly, the subject matter
jurisdiction is also questioned because of the nature of wrongs
committed by the TNCs. Thus, a unified set of norms establishing a
right to civil remedy specifically for the wrongs committed by the
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TNCs is required to avoid ambiguities related to subject matter
jurisdiction.
The legislation giving jurisdiction to the courts within the home
states for accepting complaints of civil nature against TNCs
registered under their law are important for the enforcement of the
court decisions. For instance, if a court in the host state pass a
decision against a TNC registered in another state, questions may
arise regarding the enforcement of such court decisions. In cases
where the parent company does not have any assets within the host
states, the enforcement of a decision against them will be ineffective
unless voluntarily done by the corporation. For instance, in
Aguindavs Texaco, Inc., 50 the Ecuadorian courts fined Chevron
(previously Texaco) for $18 billion to remediate environmental
damages. The execution of the decision is still pending as Chevron
refuses to pay the damages, although the amount was reduced to $9
billion by the Supreme Court in November 2013.51 The case was
brought in Ecuadorian courts because the courts in the home state
(USA in this case) refused the case on the basis of forum non
conveniens.52
4. Conclusion:
Access to civil remedies is directly relevant with the individual‟s
right of access to justice. The state courts are an appropriate forum as
far as proper legislation is adopted, allowing non-citizens to sue
business entities. Therefore the state responsibility to protect shall be
extended outside its territory, as far as the actions of its „legal
persons‟ are concerned.The state courts jurisdiction shall be based
upon the nationality principle. The subject matter jurisdiction as
evident from the court practice cannot be adopted by states with
respect to the TNCs. Furthermore the concept of forum non
conveniens can be neutralized by adopting specific legislation by the
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home states to allow a fair practice among the TNCs and to provide
respect for the International Norms.
Note & References
1See Newell P., Access to Environmental Justice? Litigation against TNCs in the South, 32 (1)
IDS Bulletin (2001).
2 ICSID is established under the Convention on the Settlement of Investment Disputes between
States and Nationals of Other States (the “ICSID Convention”), it is a treaty based tribunal
drafted by the „International Bank for Reconstruction and Development‟.
3 WIPO is a global forum for intellectual property services, policy, information and
cooperation.
4Cronstead C. et al., An International Arbitration Tribunal on Business and Human Rights
Reshaping the Judiciary (June 23, 2014), available at <http://business-
humanrights.org/sites/default/files/media/documents/intl_arbitration_tribunal_version_3-
23_june_2014.pdf> (last accessed on 01 March, 2018).
5Cronstead, ibid, at 3.
6See e.g. Cronstead C. and Thompson R.C., An International Arbitration Tribunal on Business
and Human Rights, (April 13, 2015), available
<http://www.l4bb.org/news/TribunalV5B.pdf>(last accessed on 01 March, 2018) this is the
latest report of L4BB on this specific issue.
7Meeran R., The Unveiling of Transnational Corporations, in Kamminga M.T. and Zia-ZarifiS.
(eds.), Liability of Multinational Corporations under International Law, (Hague: Kluwer Law
International, 2000), at 264.
8 28 U. S. C. §1350; Alien‟s action for tort, Included in the Judiciary Act of 1789. The
legislation is also often referred to as the Alien Tort Claims Act (ATCA).
9Filártiga v. Peña-Irala, 630 F.2d 876 (2d Cir. 1980).
10 Larsen R.K., Foreign Direct Liability Claims in Sweden: Learning from Arica Victims KB.
vs Boliden Mineral AB? 83(4) Nordic Journal of International Law (2014), at 409.
11Ibid.
12 Schwartz J.A., Piercing The Corporate Veil Of An Alien Parent For Jurisdictional Purposes:
A Proposal For A Standard That Comports With Due Process, 96(3) California Law
Review(2008), at 752-753.
13SeeJ.McIntryre Machinery Ltd. v. Nicastro, 131 S.Ct. 2780 (2011) (noting that those who live
or operate primarily outside a state have a due process right not to be subject to judgment in its
courts as a general matter); Asahi Metal Industry Co. v. Superior Court of California, 480 U.S.
102 (1987) (finding California‟s exertion of personal jurisdiction over Japanese manufacturer
would exceed limits of due process, absent action by manufacturer to purposefully avail itself
of California market). Cited in Martin A., Corporate Liability for Violations of International
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Human Rights: Law, International Customs or Politics?21Minnesota Journal of International
Law(2012), at 98.
14 See Muchlinski P.T., Multinational Enterprises and the Law (Oxford: Oxford University
Press, 2007), at 126-127. The protection of economic Interests is also included within the vital
interests e.g. the anti-trust laws.
15Ibid, at 130-131 (Citing Fruehauf case).
16See Schwartz J.A., Piercing the Corporate Veil of an Alien Parent for Jurisdictional Purposes:
A Proposal for a Standard that Comports with Due Process, 96(3) California Law Review
(2008), (discussing U.S. parent companies and their alien subsidiaries and the more generous
damage awards available in U.S. courts).
17 Sara L., Home State Responsibility and Local Communities: The Case of Global Mining, 11
Yale Human Rights and Development Law Journal (2008), 202-203.
18Ibid at 203;Representative of the International Law Commission, 53d Session, Apr. 23June
1, July 2Aug. 10, (2001), U.N. Doc. A/56/10; 53rd Sess., GAOR, 56th Sess., Supp. No. 10
(2001) (hereinafter ILC Report).
19Sara L., Fn. 17, at 203; and Ibid ILC Report at 375.
20Union Carbide Corporation Gas Plant Disaster, 809 F.2d 195, 197 (2d Cir. 1987), at 99.
21Ibid at 197.
22 Ibid.
23Ibid, at 199.
24 Ibid, at 202-203.
25 Amnesty International, India: First Convictions for 1984 Union Carbide Disaster Too
Little, Too Late, (June 7, 2010), <http://www.amnesty.org/en/news-and-updates/first-
convictions-1984-union-carbide-disaster-bhopal-too-little-too-late-2010-06-07> (last accessed
on 01 March, 2018).
26See Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88 (2d Cir. 2000).
27Ibid.
28See Doe v. Unocal Corp., 963 F.Supp. 880, 88992, 896 (C.D. Cal. 1997).
29Case C281/02,Owusu v. Jackson, 2005 E.C.R.I1238, atpara. 16.
30Ruggie J., Promotion and Protection of all Human Rights, Civil Political, Economic, Social
and Cultural Rights Including the Right to Development, Protect, Respect and Remedy: A
Framework for business and Human rights, Report of the Special representative of the
Secretary General on the issue of Human Rights and Transnational Corporations and Other
Business Enterprises(2008),at 23.
31 In 2010 the Canadian House of Commons rejected a bill (The Corporate Accountability of
Mining, Oil and Gas Corporations in Developing Countries Act) which would have authorized
the department of foreign affairs to investigate allegations of human rights abuses committed
abroad by Canadian mining companies. The Act would have penalized corporations found to be
involved in illegal behavior by limiting their Export Development funding and embassy
promotion. The antagonists argued that the new act would have had no affect and would have
rendered Canadian miners uncompetitive. See Stone L. & Barber M.,Bill to end abuses in
overseas mines up for „tight‟ final vote, Canvest News Service (Oct. 26, 2010); see also Martin
A., On the Canadian Mining Bill on Corporate Accountability (the buried one), International
Law Notepad (Nov. 11, 2010),
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<http://internationallawnotepad.wordpress.com/2010/11/11/canadian-bill-mining-corporate-
accountability/>(last accessed on 01 March, 2018). On the debate surrounding the Act‟s
rejection, see McKay J., No: It will Improve Corporate Practice, in Vancouver Sun (Oct. 26,
2010)
<http://embamex.sre.gob.mx/canada/index.php?option=com_content&view=article&id=389:no
-it-will-improve-corporate-practice-the-vancouver-sun&catid=43:miercoles-26-mayo-
2010&Itemid=61> (last accessed on 01 March, 2018).
32Kiobel v. Royal Dutch Petroleum Co., 642 F.3d 268 (2d Cir. 2011).
33 See U.S. Supreme Courts‟ decision, 569 U.S. (2013).
34Ibid, at 12.
35Ibid, at 14.
36Sosa v. Alvarez-Machain, 542 U.S. 692 (2004), at 728.
37Geraldo C.B.et al. Vs. Drummond Company Inc. et. al., Case No.: 2:09-CV-1041-RDP (25
july, 2013); available http://www.lawfareblog.com/wp-content/uploads/2013/07/455_Order-
granting-SJ-for-DCI-and-DLTD.pdf (last accessed on 01 March, 2018).
38Al Shimari vs. CACI International Inc., 1:08-CV-827 GBL/JFA 2013 WL 3229720 (25 June,
2013).
39 See e.g. Sosa v. Alvarez-Machain fn. 36; see also Flomo v. Firestone Natural Rubber Co.,
744 F.Supp.2d 810 (S.D. Ind. 2010).
40 See for instance Flomo v. Firestone Natural Rubber Co., 643 F.3d 1013, 1019, 1024 (7th Cir.
2011); See also Doe v. Exxon Mobil Corp., 654 F.3d 11, 15 (D.C. Cir. 2011). “[T]here is not
basis for corporate immunity in either the text or the history of the ATS or international law.
They observe, as the Eleventh Circuit held in Romero that the text of the ATS places no limit on
who can be a defendant, by contrasting with who can be a plaintiff, and the phrase “any civil
action” under-mines any implied limitations not contained in the text.”
41Filartiga,630 F.2d at 884. For a detailed analysis see Hoffman B., Vahlsing M.et al., Out of
Bounds: Accountability for Corporate Human Rights Abuse After Kiobel, (2013) Earth Rights
International, available at <www.earthrights.org/publications>(last accessed on 01 March,
2018).
42 Brussels I Regulation, Council Regulation 44/2001, 2001 O.J. (L012), for more on the
jurisdiction see e.g. Betlem G., Transnational Litigation Against Multinational Corporations
Before Dutch Civil Courts, in Kamminga and Zia-Zarifi(eds.), Fn. 7.
43Rechtbank„s Gravenhage 30 December 2009, JOR 2010, 41 m.n.t. Mr. RGJ de Haan
(Nigerians/Shell)(Neth.).
44Motto v. Trafigura (2011) EWHC (QB) 90206, available at <www.gwslaw.co.uk/wp-
content/uploads/2011/07/Trafigura-v-Motto.doc>(last accessed on 01 March, 2018).
45 See for example the case laws of European Court of Justice, for instance, AndrewOwusu v.
N.B. Jackson, case No. C-281/02, 01 (March 2005); see also Group Josi Reinsurance Company
SA v Universal General Insurance Company (UGIC), case No. C-412/98, 13 July 2000.
46 M. Bogdan, „The Treatment of Environmental Damage in Regulation Rome I‟, in J. Ahern
and W. Binchy (eds.), The Rome II Regulation on the Law Applicable to Non-Contractual
Obligations. A New International Litigation Regime(MartinusNijhoff Publishers, Leiden,
2009), pp. 219230.
Journal of Law and Society Law College
Vol. XLVIII, No. 71 University of Peshawar
July 2017
37
47 M. Saage-Maas, Labour Conditions in the Global Supply Chain. What Is the Extent and
Implications of German Corporate Responsibility?(Friedrich Ebert Stiftung, Berlin, 2011).
48 See Schutter O.D., The Accountability of Multinationals for Human Rights Violations in
European Law, in Alston P. (ed.), Non-State Actors and Human Rights, (Oxford: Oxford
University Press, 2005), at 291-295.
49 See Muchlinski, Fn. 14, at 155. Muchlinski argues that the US courts would not like to take
the burden of being an international court against the actions of US TNCs abroad.
50 See Skinner G. et al., The Third Pillar: Access to Judicial Remedies for Human Rights
Violations by Transnational Business, Published by CORE, ICAR and ECCJ (December,
2013), at 27.
51 See ibid.
52Aguinda vs. Texaco Inc., 303 F.3d 470 (2d.Cir. 2002).
Article
Full-text available
Corporations inevitably violate human rights in a variety of ways. As corporations evolved into massive multinational businesses, corporate violence—which is a legacy of colonialism and corporate power—continues to exist today. Corporate players maintain their freedom in pursuing their objectives using convoluted and obscure multinational organizations and supply networks, through the utilization of corporate law principles like the veil of corporate ownership, and also through other practices like tax evasion and lobbying of political bodies. The objective of this article is to explore the legal aspects of the problem of corporate violence, and suggesting reforms to ensure justice for the affected parties. This article uses the doctrinal research method along with the comparative method, focusing on both primary and secondary data. This article makes the case that the issue stems from the structural and systemic flaws in the framework of international law as well as in corporate laws that continually preserve corporate institutions in frustrating the advancement of the cause for human rights. To effectively enhance the corporate and human rights environment, a framework of hard law, soft law, and non-law reforms and actions is needed.
Chapter
Can transnational corporations ignore human rights as long as governments don’t hold them accountable? If the UN is put in charge of a territory, is it bound by human rights law? Does that body of law apply to private security contractors who use torture to achieve their goals? Does the right to freedom of speech apply in a private shopping mall which has become the modern-day town centre? Under traditional approaches to human rights, non-State actors are beyond the direct reach of international human rights law. They cannot be parties to the relevant treaties and so they are only bound to the extent that obligations accepted by States can be applied to them by governments. The result is that entities including Non-Governmental Organizations, international organizations such as the UN and the IMF, private security contractors, and transnational corporations, along with many others, are generally considered not to be bound directly by human rights law. This situation threatens to make a mockery of much of the international system of accountability for human rights violations. As privatization, outsourcing, and downsizing place ever more public or governmental functions into the hands of private actors, the human rights regime must adapt if it is to maintain its relevance. The contributors to this volume examine the different approaches that might be taken in order to ensure some degree of accountability. Making space in the legal regime to take account of the role of non-State actors is one of the biggest and most critical challenges facing international law today.
Article
On 12 September 2013 what may be the first foreign direct liability claim in Sweden was filed in the County Court of Skellefteå, a court action reflective of a growing wave of civil liability suits in European jurisdictions to hold transnational corporations accountable for human rights violations and environmental damages. This article examines the feasibility of foreign direct liability claims in Sweden, focusing on enabling conditions with regards to jurisdiction, collision rules and applicable law, substantial legal basis, procedural and practical circumstances, and the theories by which parent companies can be held liable for negligence in supervising acts of subsidiaries and contractors. It is demonstrated that foreign direct liability claims on environmental damage are indeed possible in Sweden, albeit with considerable constraints, primarily of a procedural and financial character. The conclusion provides some cautious remarks on the merits of the claim against Boliden and the reform options available to a Swedish government committed to improving the access to justice for victims of violations perpetuated by Swedish companies, their subsidiaries and contractors.
Article
Home states that are actively engaged in global mining have considered and rejected calls to regulate the conduct of transnational mining corporations so as to prevent and remedy human rights and environmental harms. This reluctance to regulate is often expressed as a concern that extraterritorial regulation will conflict with the sovereignty of foreign states. This paper argues that the public international law of jurisdiction is permissive of home state regulation that can be justified under the nationality or territoriality principles, provided that there is no true conflict with an exercise of host state jurisdiction. In the human rights and environment contexts, it is more likely that home state regulation would result in concurrent but not conflicting jurisdiction, particularly where the regulation is designed to further shared international norms. Beyond permissibility, this paper argues that international sustainable mineral development law imposes an emerging obligation on all states, including home states, to ensure that the three pillars of public participation rights are respected. These rights are access to information, public participation in decision-making, and access to justice in environmental matters, and they are formulated in the global mining context as a right of indigenous and local communities to free, prior and informed consent. Support for the existence of such a home state obligation may be found in the recommendations of international human rights treaty bodies, and in the work of the International Law Commission on both state responsibility, and the prevention and allocation of loss for transboundary harm.
An International Arbitration Tribunal on Business and Human Rights -Reshaping the Judiciary
  • C Cronstead
Cronstead C. et al., An International Arbitration Tribunal on Business and Human Rights -Reshaping the Judiciary (June 23, 2014), available at <http://businesshumanrights.org/sites/default/files/media/documents/intl_arbitration_tribunal_version_3-23_june_2014.pdf> (last accessed on 01 March, 2018).
An International Arbitration Tribunal on Business and Human Rights
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  • R C Thompson
See e.g. Cronstead C. and Thompson R.C., An International Arbitration Tribunal on Business and Human Rights, (April 13, 2015), available <http://www.l4bb.org/news/TribunalV5B.pdf>(last accessed on 01 March, 2018
Liability of Multinational Corporations under International Law
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Meeran R., The Unveiling of Transnational Corporations, in Kamminga M.T. and Zia-ZarifiS. (eds.), Liability of Multinational Corporations under International Law, (Hague: Kluwer Law International, 2000), at 264.
Peña-Irala, 630 F.2d 876 (2d Cir
  • Filártiga V
Filártiga v. Peña-Irala, 630 F.2d 876 (2d Cir. 1980).
finding California"s exertion of personal jurisdiction over Japanese manufacturer would exceed limits of due process, absent action by manufacturer to purposefully avail itself of California market)
Asahi Metal Industry Co. v. Superior Court of California, 480 U.S. 102 (1987) (finding California"s exertion of personal jurisdiction over Japanese manufacturer would exceed limits of due process, absent action by manufacturer to purposefully avail itself of California market). Cited in Martin A., Corporate Liability for Violations of International Human Rights: Law, International Customs or Politics?21Minnesota Journal of International Law(2012), at 98.