Counter Corporate Litigation: Remedy, Regulation, and Repression in the Struggle for a Just Transition

Mark B Taylor

doi:10.3390/su131910742

Abstract

Hundreds of human rights and environmental cases against corporations have been launched in countries around the world in the past two decades. This body of counter corporate litigation—legal actions that involve attempts to enforce legal or normative standards against business entities—forms a significant part of the legal struggles shaping the transition to a sustainable economy. However, the question remains—how does litigation against companies fit with the larger patterns of reform? In this paper, I draw on a taxonomy of sustainability litigation to describe three functions of counter corporate litigation: remedy, the search for justice through legal action; regulation, the enforcement of legal standards through the courts; and repression, the proscription of predatory business models. I argue that research into counter corporate litigation helps to illuminate the priorities for legal reform, including the integration of human rights and the environment into legal instruments governing corporate activities, transnational approaches to corporate accountability, and a willingness to challenge unsustainable business models.

Highlights

Is there a legal defence against corporate un-sustainability? Compared to the rapid and economically drastic regulatory action taken by governments in response to the COVID-19 pandemic, the responses to widespread and disastrous harms from climate change or the depletion of biodiversity have been timid half-measures
The emergence of counter corporate litigation in recent decades suggests that the negative impacts generated by those systems, long sources of biosphere degradation and human rights risks, can no longer be externalized and forgotten
The rise of counter corporate litigation suggests that the courts may have a role to play in contributing to a just transition, by providing remedy and justice to victims, enforcement of regulatory action by state authorities, and by the repression of predatory business models

Summary

Introduction

Is there a legal defence against corporate un-sustainability? Compared to the rapid and economically drastic regulatory action taken by governments in response to the COVID-19 pandemic, the responses to widespread and disastrous harms from climate change or the depletion of biodiversity have been timid half-measures. The latter are increasingly based on the latest scientific research into the environmental and social impacts of our systems of production and consumption. Beyond the function of particular cases as a defence of rights or interests, or as form of the enforcement of standards in law, counter corporate cases, taken as a whole, describe the contours of acceptable business conduct in a just transition In this sense, they are a particular category of strategic litigation, the study of which may help us better understand the influence of regulation in the present transition and on our systems of production and consumption more generally

Litigating Sustainability

Remedies for Harms to People and the Planet

Regulating Duties of Care

Repression of Predatory Business Models

Findings

Conclusions—Litigating a Just Transition?