The Road to Song Mao: Transnational Litigation from South-East Asia

Abstract

The Supreme Court’s decision in Kiobel v Royal Dutch Petroleum Co. (“Kiobel”) has been extensively critiqued through the lens of United States (“US”) law, policy and jurisprudence. The lament that Kiobel has “destroy(ed) an entire juridical edifice for redressing gross violations of human rights” in US courts, however, should not eclipse the fact that redress can, and at times should, be secured elsewhere. In my view, Kiobel rightly adjusts the aperture of transnational corporate accountability away from the US – hitherto the default venue – and towards regional and foreign jurisdictions where violations occur or where accomplices reside. This article examines a transnational human rights litigation (“THRL”) case regarding land evictions in Cambodia that has been accepted for adjudication by the United Kingdom (“UK”) High Court. Song Mao v Tate & Lyle Sugar Industries (“Song Mao”), I argue, reinforces and refines three crucial lessons that can be gleaned from Kiobel. First, domestic and regional processes should be the first port of call when seeking redress for business-related human rights abuse. Second, once such processes are exhausted, recourse can be sought through THRL against transnational corporations and before foreign courts that have a nexus to the claim. Third, THRL should be premised on an appropriate cause of action, however pedestrian it may seem. Garden variety tort claims may be more effective at a liminal stage than torts rooted in jus cogens norms as foreign courts may find the latter to be incompatible with comity, especially without statutes akin to the Alien Tort Claims Act (“ATS”).