Parent company liability in transnational human rights disputes: an interactional model to overcome the veil in home state courts

Abstract

ABSTRACT Recent decisions by common law home state courts have interpreted corporate separateness in a way that actually or, otherwise, effectively bars host state victims from compensatory tort remedies from transnational corporation (TNC) parent companies. Taking into account other proposals, this article suggests an interactional model to pierce the veil to more routinely allow for parent company liability in claims that concern fundamental human rights violations. Under that model, home state courts would prioritise capital flows between a parent company and host state corporations by asking a single question: Does the parent company derive profits from operations in a host state? To substantiate the need for an interactional model in light of increasing transnationalisation and the primacy of fundamental human rights, this article utilises the analytical lens of the New Legal Realism as well as normative hierarchy principles recently put forward by the Supreme Court of Canada in Nevsun.