Litigation for Overseas Corporate Human Rights Abuses in the European Union: The Challenge of Jurisdiction

By Wouters, Jan; Ryngaert, Cedric | The George Washington International Law Review, August 10, 2009 | Go to article overview

Litigation for Overseas Corporate Human Rights Abuses in the European Union: The Challenge of Jurisdiction


Wouters, Jan, Ryngaert, Cedric, The George Washington International Law Review


I. INTRODUCTION

It is well-known that a number of states, typically developing states, hardly regulate the activities of transnational corporations (TNCs). In some instances, they do so on purpose in order to attract foreign direct investment. In other instances, a regulatory vacuum arises because of a nonfunctioning or corrupt government. Either way, vulnerable populations may fall victim to the practices of TNCs. Because the host state fails to assume its regulatory responsibilities, and because no international court has jurisdiction over corporate abuses,1 it has been argued that the home state of the TNC, typically (but not always) a Western state, should fill the regulatory vacuum ("home State regulation").2 Because Western states have failed to adopt specific legislation regulating the overseas activities of their TNCs,3 victims' hopes have converged around corporate litigation in Western courts on the basis of general principles of tort law.4 Specifically in the United States since the 1990s, victims and their representatives have filed a considerable number of tort claims against U.S. TNCs under the Alien Tort Claims Act (ATCA), pursuant to which "[t]he district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States."5

This Article examines whether tort litigation for corporate abuses, human-rights abuses in particular, that have occurred abroad or are at least producing effects abroad, has a future in the European Union. It is striking that although national courts in the European Union appear to have jurisdiction over any defendant corporation that is "domiciled" in the European Union, irrespective of where the harm occurred or the nationality of the plaintiffs,6 very few tort cases have so far been brought. It is submitted that this is attributable to the fact that European domestic legal systems - and, for that matter, most domestic legal systems that do not statutorily authorize their courts to exercise tort jurisdiction over overseas violations - have a territorial focus, whereas TNCs inevitably have a transnational reach.7 In a transnational situation, therefore, European courts will typically look for a territorial nexus with the forum.8

It will be argued that this territorial focus is not necessarily fatal to national courts in the European Union that assume tort jurisdiction over corporate abuses diat produce adverse effects abroad. If the origin of these abuses can be situated in the forum, plaintiffs may duly have a cause of action. This will notably be the case when negligence of the TNCs parent corporation can be established. As the parent corporation typically organizes the transnational corporate group's activities from headquarters in the Western home state, a parent corporation's failure to live up to its duty of care has a territorial nexus.9 The identification of this nexus may ease concerns over the extraterritorial application of the home state's law and over the attendant intervention in the internal affairs of the host state.10 Even if the standard of duty of care were to be employed, however, it remains no less true that the harm itself has occurred in the host state. In order to weaken defenses based on unwarranted intervention of the home state in the host state, it will therefore be proposed to construe the duty of care in light of universally accepted principles of international human-rights law.11 The same argument holds for forum-non-conveniens defenses, although, in Europe, these defenses have lost their strength anyway after a 2005 judgment of the European Court of Justice.12

The current European tort system remains less hospitable than the U.S. one for challenging overseas corporate human-rights abuses. In the United States, the ATCA explicidy creates a cause of action for international-law violations committed abroad, where as in the European Union, jurisdictional requirements based on nationality and territoriality may discourage victims of overseas corporate human-rights abuses from filing complaints in domestic courts. …

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • A full archive of books and articles related to this one
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Litigation for Overseas Corporate Human Rights Abuses in the European Union: The Challenge of Jurisdiction
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

    Already a member? Log in now.