Crossing the Atlantic? the Political and Legal Feasibility of European Foreign Direct Liability Cases

By Enneking, Liesbeth F. H. | The George Washington International Law Review, August 10, 2009 | Go to article overview

Crossing the Atlantic? the Political and Legal Feasibility of European Foreign Direct Liability Cases


Enneking, Liesbeth F. H., The George Washington International Law Review


I. INTRODUCTION

Over the past decade, the much-debated U.S. phenomenon called the Alien Tort Claims Act (ATCA)1 has provided the basis for numerous attempts in U.S. federal courts to hold multinational corporations2 liable for public-international-law violations they commit in the course of their transnational activities.3 These socalled foreign direct liability cases, in which plaintiffs file civil-liability claims against parent companies of multinational corporations in the courts of developed countries for damage caused by subsidiaries in developing countries, have emerged more slowly across the Atlantic, however. To date, only a handful of such cases have appeared before courts in Europe.4 Two recent claims, one before the London High Court against shipping corporation Trafigura for personal injuries caused in the Ivory Coast and one before a Dutch court against oil giant Shell for environmental damages caused in Nigeria, may indicate a growing interest in the potential of foreign direct liability cases before the national courts of E.U. Member States.5 At the same time, political developments are taking place at the E.U. level, sparked by the publication in April 2008 of the influential Ruggie Report, which may turn out to have a significant effect on the political and legal climate for future cases within the European Union.6

Even though no equivalent to ATCA exists in Europe or anywhere else,7 plaintiffs may achieve similar results using ordinary tort law.8 Whereas ordinary tort claims can never substitute for ATCA claims, they may provide an important alternative when ATCA is unavailable due to the nature of the claim9 or the fact that it is brought before a court outside of the United States. The U.S. litigation culture, however, is uniquely favorable to foreign direct liability cases,10 so in countries other than the United States, such cases may face serious legal translation problems. 1 ] Differences in legal culture, substantive law, and procedural and practical matters may act as barriers to the successful pursuit of foreign direct liability cases in countries other than the United States. Still, as evidenced by past and current foreign direct liability cases before non-U.S. courts, these barriers do not render such cases impossible.

Cases like the English case against Trafigura and the Dutch case against Shell raise the prospect of translating foreign direct liability cases into the European context. Even though domestic regulations generally have retained their primacy in the civil law domain, due to the European Union's growing political and legal influence on its Member States, E.U. policies and regulations increasingly determine the European climate for foreign direct liability cases.12 At the same time, interconnected legal histories and shared legal cultures have led to many common European legal features. The question this Article answers is the following: what is the feasibility of foreign direct liability cases before courts in Europe, given the current European political and legal climate?

The underlying issue in foreign direct liability cases is access to justice for individuals and communities who are from developing host countries and who have suffered damage at the hands of multinational corporations diat operate out of developed home countries.13 In cases such as these, the host-country government often will be involved itself in the multinational corporation's activities there, either as a business partner or as a beneficiary. These governments are likely, therefore, to condone the corporation's activities even if they cause damage to third parties in the host country, which often considerably diminishes the victim's chances of receiving a fair trial in the host country.

Even if the victims do have access to justice in the host country and receive a verdict there entitiing them to compensation for their damages, local subsidiaries involved in the harmful activities will often be financially incapable of meeting a substantial damages claim. …

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

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.
Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

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

Crossing the Atlantic? the Political and Legal Feasibility of European Foreign Direct Liability Cases
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.
    Buy instant access 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.

    Buy instant access to save your work.

    Already a member? Log in now.

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.