A Process-Oriented Approach to Corporate Liability for Human Rights Violations

Abstract

This article shifts attention from the search for a norm of corporate liability for human rights abuses to an exploration of the process(es) through which corporate liability could be imposed. Elaborating on Nancy Fraser's theory of ‘abnormal justice’, we argue that only by giving serious attention to process can we begin to address the democratic deficit that characterises the current globalisation era and is particularly manifest in struggles to hold multinational corporations accountable. We further provide a conceptual matrix within which to develop processual models of transnational civil corporate liability. This conceptual analysis is grounded in a study of the Holocaust restitution litigation of the 1990s, in which Swiss banks and German corporations were sued in US courts on grounds of tort, restitution and international law for their involvement in Nazi crimes. We closely analyse and compare the Swiss and German cases in order to gain insights about the procedural tools at our disposal to hold multinational corporations accountable for human rights violations. Moreover, these cases provide concrete sites in which to explore the jurisprudential continuities and transformations experienced by law in the move from the domestic to the transnational context.