Dr Ekaterina Aristova’s book Tort Litigation against Transnational Corporations: The Challenge of Jurisdiction in English Courts is a fantastic read for anyone interested in business and human rights, private international law and the duty of care jurisprudence in English courts. The book disentangles the complexities of foreign direct liability (FDL) claims filed in the UK as the home state of parent companies for harms committed through their subsidiaries in host states. The book contains eight chapters focusing on how national laws regulate multinational enterprises; the role that FDL claims have in strengthening corporate accountability; the jurisdictional questions over FDL claims in English courts; the role of private international law in FDL claims; the private and state interests involved in FDL claims; and finally, it tests the use of the Economic Enterprise Theory in the context of FDL claims. While there is already rich literature on tort law and business and human rights, Dr. Aristova’s book critically assesses the current state of FDL claims from a unique perspective and at a pivotal moment in time.
I. Dr Aristova’s Unique Perspective
The unique perspective is that of a private international lawyer explaining that the choice of UK courts to assert or relinquish jurisdiction over FDL cases is not just a jurisdictional question. This choice often determines whether victims of severe human rights abuses will have a (remote) chance to succeed in court or, conversely, will face an insurmountable barrier to accessing justice. The book demonstrates how private international law, often considered a ‘technical legal question’ in the human rights context, in reality, holds the key to unlocking a significant part of the Third Pillar of the United Nations Guiding Principles on Business and Human Rights, which is dedicated to access to remedy. In a nutshell, if victims cannot hold parent companies to account in the home state, they often cannot hold them accountable anywhere. Thus, the jurisdictional question in private international law becomes crucial to the whole business and human rights remedy system.
But why is this the case? Why can’t victims reasonably hold subsidiaries in host states to account? Why should home state courts become responsible for a significant part of the business and human rights remedy framework? Dr Aristova’s book compellingly addresses these questions. It explains why the system is fundamentally biased and designed to leave few, often cosmetic, avenues for victims of human rights abuses to hold corporations to account. This includes, for instance, the inability of courts to handle complex cases involving several jurisdictions, corruption and corporate capture. All of these aspects contribute to a grim picture where victims often see as their only hope for justice the chance to file an FDL claim in home state courts. Yet, the openness of home state courts depends on several factors that have nothing to do with victims’ quest for justice. For example, Dr. Aristova’s book clarifies the implication of Brexit on FDL claims. The fact that Brexit revived the forum non conveniens doctrine (because the UK is no longer subject to the EU Brussels I Regulation) could close the door that the UK Supreme Court opened to FDL claims with groundbreaking rulings such as Okpabi v Shell and Lungowe v Vedanta.
The UK is not the only jurisdiction Dr. Aristova analyzes in her book. Indeed, she explores how UK courts are not alone in contemplating this ‘home state dilemma’: do we open the gate to FDL claims because this is ‘all victims have’, or do we close it because this is none of our business? The US, Canada, Australia and several European states are contemplating this dilemma too. The book navigates through a very rich set of cases decided in several of these key jurisdictions. Of course, legislative reforms, such as the EU Corporate Sustainability Due Diligence Directive, could be helpful in clarifying how courts should act. But even with a legislative intervention, several difficult questions remain for home state courts to address, such as how far they should go in opening the gate to an incalculable number of cases or the legitimacy question of whether home state courts should interfere with foreign cases at all.
II. A Pivotal Moment in Time
Dr. Aristova’s book is timely also from the perspective of public international and human rights scholars like me. The UN negotiations on the Elaboration of an international legally binding instrument on transnational corporations and other business enterprises with respect to human rights have been ongoing for over ten years. A legally binding treaty could address the jurisdictional questions Dr. Aristova investigates in her book, as demonstrated by several drafts of the treaty dealing with the difficult issues of jurisdiction in FDL cases and cooperation between courts in home and host states.
However, there seems to be no way for states to find an agreement in the short term. Ten years ago, the negotiations were already difficult. When Resolution 26/9 was introduced by Ecuador, Bolivia, Cuba and South Africa, establishing the open-ended intergovernmental working group on transnational corporations and other business enterprises with respect to human rights to work on a prospective legally binding treaty, it passed with 20 votes in favour, 14 against and 13 abstentions. Notably, all countries in favour were developing states, and all countries against were Western states. Today, the world is more divided than ever: the Permanent Five (P5) members of the UN Security Council often see on one side, the US, the UK and France and on the other, Russia and China. States across the world either align with one of these two antagonistic groups or try to find a third way forward by not aligning with anyone. These geopolitical tensions have certainly increased the dichotomy between the West and the rest. Thus, the divisions that were already evident ten years ago now seem insurmountable. When states are immobilized in their geopolitical positions, international cooperation does not work, and the UN is not able to offer solutions to the biggest world crises, let alone create a new legal framework for people and communities to hold multinationals to account.
If public international law no longer works, victims will inevitably look for alternative avenues to seek justice. Thus, it is no surprise that FDL litigation is flourishing across the globe. Litigators test new and creative avenues to not only hold companies accountable but also raise awareness about the corporate accountability problem by filing transnational cases that have a huge mediatic impact. Therefore, the future of business and human rights, at least in the short term, might not look like an agreement or cooperation between home and host states to bring multinationals to justice but rather like a confused patchwork of cases filed across different jurisdictions combining private and public laws. Inevitably, the jurisdictions that are home to some of the most important multinationals in the world will be put under particular pressure to address the dilemma described above. Some will address it via unilateral legislative initiatives, such as the EU Corporate Sustainability Due Diligence Directive, and some via judicial engagement, as the UK has done so far.
Regardless of the jurisdiction, it is increasingly important for business and human rights scholars to concentrate on the private international law aspects of transnational claims, given that the public international law field is unlikely to provide solutions to the corporate accountability gap in the short term. Against this background, Dr. Aristova’s book provides an insightful read of the past, present and future of private international law as applicable to FDL cases.
