Litigating Sustainability – Towards a Taxonomy of Counter-Corporate Litigation

Abstract

The paper sets out to establish a basis for research into the role of litigation involving business entities as part of the larger project of regulating business activity for sustainability. The paper frames the wave of climate litigation against companies in domestic courts alongside the expanding practice of domestic legal actions against business alleging human rights abuses. Drawing on case law databases, the paper develops a taxonomy of litigation involving business entities, across fields of litigation normally fragmented by legal regime and jurisdiction. Based on the substance of these cases, the paper identifies four broad categories of litigation - biosphere violations, eco-human toxicity, predation, and corporate lawfare – and describes the main dimensions in each category. The substance of these cases reflect attempts to enforce legal standards of sustainability against business entities or, in the case of corporate lawfare, to challenge attempts to corporate accountability for their impacts on people and the planet. The paper suggests that by framing the substance of these cases as part of a set of cases involving business entities, we may better understand the place of litigation in general, and counter corporate litigation in particular, as a legal tool in the development of regulation designed to secure sustainability. The paper is a result of research conducted as part of the project Sustainable Market Actors and Responsible Trade (SMART, EU Horizon 2020) Faculty of Law, University of Oslo.