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Foreign Direct Liability and Beyond - Exploring the Role of Tort Law in Promoting International Corporate Social Responsibility and Accountability

Western societies are witnessing an emerging socio-legal trend towards transnational civil litigation against multinational corporations in relation to harm caused to people and planet abroad. Increasingly, individuals and communities from developing host countries who have been detrimentally impacted by the local activities of multinational corporations turn to Western society home country courts to address and seek redress for their harm through private law mechanisms. One of the main driving forces behind this development has been provided by the Alien Tort Statute (ATS), an obscure 1789 US federal statute that has since the 1980s been used as a legal basis for tort claims before US federal courts relating to international human rights violations perpetrated anywhere in the world. Since the late 1990s, dozens of ATS-based civil claims have been brought against a score of multinational corporations that have found themselves subject to the exercise of personal jurisdiction by US federal courts. Well-known are the claims against Shell for its alleged involvement in human rights violations perpetrated by the Nigerian government against environmental activists in the Ogoniland region of the Niger Delta. Similar transnational civil liability claims against multinational corporations have been brought before courts in other Western societies, like the UK, Australia, Canada and the Netherlands. In the absence of a specific statute such as the Alien Tort Statute, these claims have typically been based on general principles of tort law and the tort of negligence in particular. Recent examples include: the civil claims pursued in the UK against Trafigura for its involvement in the Probo Koala toxic waste dumping incident in the Ivory Coast; and the tort claims against Royal Dutch Shell and its Nigerian subsidiary relating to oil spills in the Niger Delta, which are currently pending before the The Hague district court. These 'foreign direct liability cases' arise against the background of a global governance gap that results from the rapid globalization of economic actors and activities on the one hand, and the lack of global institutions to manage their worldwide impacts, on the other. The increasing reliance, through these cases, on domestic private law mechanisms to realise corporate accountability for violations of human rights, health&safety, environmental and labour norms perpetrated abroad, raises interesting and complex questions. Which factors determine the feasibility of foreign direct liability cases? Are companies under a legal obligation to protect people and planet beyond locally imposed and enforced legal requirements? Can Western society systems of tort law play a role in addressing the regulatory gap that exists with respect to the transnational activities of internationally operating business enterprises? This study sets out the legal and socio-political framework of this particular type of transnational civil litigation and traces the role that Western society systems of tort law may play in promoting international corporate social responsibility and accountability. In doing so, it focuses on the feasibility of bringing foreign direct liability claims before domestic courts in the EU Member States - the Netherlands in particular - and sets out a number of recommendations for European policymakers.