Abstract
This article examines the feasibility of using the jurisdiction by necessity doctrine to promote the accountability of transnational corporations (TNCs) for extraterritorial human and environmental rights abuses committed in developing countries with weak accountability mechanisms. Under the doctrine, a court devoid of jurisdiction may nevertheless hear a dispute where it considers that there is no other court where the dispute may be heard or where the plaintiff may be reasonably expected to bring the action. The article analyzes the inadequacy of existing jurisdictional doctrines in light of the complex web of operations of TNCs, which shields them from the reach of traditional jurisdictional doctrines. After exploring the origin of the jurisdiction by necessity doctrine, the article critically examines the elements of the doctrine to see how they may be applied to the regulation of TNCs. The article argues that the emergence of the jurisdiction by necessity doctrine offers plaintiffs in transnational corporate human rights litigation a new jurisdictional possibility to weigh, as the doctrine has the potential to address some of the jurisdictional difficulties encountered in such litigation.
Highlights
When a court lacks territorial jurisdiction to adjudicate a dispute, it may turn to an emerging doctrine in jurisdictional law, which allows the court to assume jurisdiction over the dispute where the court considers that there is no other forum in which the dispute may be adjudicated or in which the plaintiff may reasonably be expected to initiate the suit
This article examines the feasibility of using the jurisdiction by necessity doctrine to promote the accountability of transnational corporations (TNCs) for extraterritorial human and environmental rights abuses committed in developing countries with weak accountability mechanisms
The article analyzes the inadequacy of existing jurisdictional doctrines in light of the complex web of operations of TNCs, which shields them from the reach of traditional jurisdictional doctrines
Summary
When a court lacks territorial jurisdiction to adjudicate a dispute, it may turn to an emerging doctrine in jurisdictional law, which allows the court to assume jurisdiction over the dispute where the court considers that there is no other forum in which the dispute may be adjudicated or in which the plaintiff may reasonably be expected to initiate the suit. The central argument of this article is that with the emergence of the jurisdiction by necessity doctrine, victims of transnational corporate human rights violations in countries with weak accountability mechanisms have a new jurisdictional tool with which they may seek justice in foreign countries. It should be noted, that this article is concerned with civil jurisdiction alone and does not extend to criminal jurisdiction. Such acts of corporate protectionism by Western countries symbolize, arguably, the extent of the influence of TNCs even within their home countries
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