Friday, April 16, 2010

Marginalisation of human rights in transnational corporate litigation

Peter Hunn, LLB thesis, University of Southampton, argues that corporate violations of international human rights norms are often perpetrated by the subsidiaries of transnational corporations in developing 'host' States.
The structural impediments of recourse in, and against, these States has generated a wave of recent transnational litigation against the parent companies of these subsidiaries in the US under the Alien Tort Claims Act.
Replicative attempts at such 'foreign direct liability' litigation have been instigated in England. Thus far that litigation been concerned solely with the procedural issues thereto. Recent changes in private international law have, however, removed those procedural limitations that have concerned transnational litigation hitherto, and shifted the emphasis to substantive law. This has reformulated the landscape of transnational litigation against parent companies domiciled in EU Member States.
By employing syllogistic reasoning, this thesis offers a novel theory - from the viewpoint of English law - of the marginalisation of international human rights norms under the ICCPR, ICESCR and ECHR through use of the corporate form. It does so by drawing on disparate areas of law to argue that, inter alia, the legal implications of the equity link in transnational corporate groups severely restrict the potential for accountability and redress at both national and international levels. The composite effect being that the corporate form provides both near de facto impunity for TNCs operative through subsidiaries incorporated in these States.'

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