Abstract

AbstractThe article explores the relationship between tort law and human rights. It explains the potential inherent in holding corporations liable in tort for human rights violations along the supply chain, such as the 2013 Rana Plaza collapse in Bangladesh. On a theoretical level, it devises a legal framework of tort liability that is optimal from the standpoint of social welfare. Such an optimal liability system would make manufacturers internalise the full cost of production, including harm caused to workers, third parties and the environment. In contrast, the present global liability situation is characterised by legal fragmentation and enforcement deficits. These factors provide the explanation for the large-scale externalisation of production risks we witness today, leading to an inflated global demand. In principle, tort law is well suited to offer a remedy, as the interests protected by human rights and national tort law broadly overlap. Furthermore, the duty of care which is the core requirement for shifting losses to others via tort law is a flexible concept that may even be stretched to accommodate cross-border human rights policies. The new French “devoir de vigilance,” or human rights due diligence, as well the UK Supreme Court’s recent jurisprudence, aim to tap this potential. On the other hand, the article raises doubt in relation to the adverse economic incentives and market shifts if such duties are imposed selectively, i.e. only in some jurisdictions, but not in others. After all, private international law often stands in the way of a global application of national tort law. Finally, alternative mechanisms of enforcement are assessed and examined with a view to their comparative effectiveness. This analysis casts doubt on the usefulness of tort law as a means to further the human rights cause.

Highlights

  • In spite of the developments of Europeanisation and globalisation, tort law is essentially a domestic affair

  • To the extent that a given national tort law system meets these goals, why not opt for its extraterritorial application? Given that tort law pursues the goal of cost internalisation, and further assuming that the legal systems in the countries of production fail to get the job done, it seems to follow that the legal and judicial systems of another jurisdiction should pick up the slack and provide the enforcement mechanism lacking abroad

  • For Article 16 of the Rome II Regulation to apply, one must argue that the tort law at the domicile of the supply chain leader is mandatory in nature, and that the policy decision behind it is strong enough to warrant international application

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Summary

Introduction

In spite of the developments of Europeanisation and globalisation, tort law is essentially a domestic affair. The legal rules for dealing with cases involving a “conflict of laws,” where it is not unequivocally clear whether one legal system or another controls, are designed to provide a “level playing field.” These rules seek to ensure that the persons who choose to act in a particular jurisdiction play by the same rules. The idea behind ensuring a level playing field is that the safety standards and rules for proper behaviour must be coordinated in order to provide the benefit aimed for, namely reduced accident costs. The conflict-of-law rules providing that the tort law of France applies, and that in any event the safety standards at the place of injury control, ensure that English tourists and French motorists coordinate their behaviour in the interest of safety.. The conflict-of-law rules providing that the tort law of France applies, and that in any event the safety standards at the place of injury control, ensure that English tourists and French motorists coordinate their behaviour in the interest of safety. Where everybody drives on the same side of the road, the number of accidents is minimised, at least in comparison to any other system of assigning lanes to drivers

Legal Unity, Economic Diversity
The Tort Law Problems of Human Rights Violations
The Optimal Legal Solution
Legal Fragmentation
Broad Externalisation
Globalising National Law
The Overlap Between Tort Law and Human Rights
Pathways Towards Global Application
Discriminatory Liability and the Virtues of Restraint
Production Liability as an Alternative Regime of Choice of Law
The Entity Limitation
Human Rights Due Diligence as an Intermediate Solution
Enforcement
Findings
Conclusions
Full Text
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