Transnational Corporate Responsibility in Domestic Courts: Still Out of Reach?

Andrew Sanger

doi:10.2139/ssrn.3311654

Abstract

Despite some modest progress, corporate responsibility for human rights abuses in domestic courts remains elusive. In U.S. federal courts, Alien Tort Statute (ATS) litigation is now more precarious than ever before. While there have been some potentially important developments in English courts, judges are reluctant to extend responsibility to parent corporations for harm caused by the operations of foreign subsidiaries. Although U.S. and English courts have been concerned with distinct doctrinal issues, the overall picture appears to be one of deference to the corporation and its anatomized form, and to the goal of promoting investment abroad.

Highlights

Despite some modest progress, corporate responsibility for human rights abuses in domestic courts remains elusive
While there have been some potentially important developments in English courts, judges are reluctant to extend responsibility to parent corporations for harm caused by the operations of foreign subsidiaries
Both the Supreme Court Justices and the Court of Appeals remain deeply divided over (i) the circumstances in which a corporation may be a defendant in an Alien Tort Statute (ATS) case; and (ii) whether all of the conduct giving rise to the violation of an international norm must take place in the United States

Summary

Andrew Sanger*

Corporate responsibility for human rights abuses in domestic courts remains elusive. Since there is no English common law power to develop new torts for breaches of international norms, recent litigation in English courts has focused on whether UK-based parent corporations owe a duty of care to victims in a foreign state in which their subsidiary operates. This question has arisen at a preliminary stage, where the defendant has sought dismissal of the case for want of jurisdiction.

AJIL UNBOUND

Judicial Reluctance to Extend Responsibility to Corporations?

Conclusion