Research On The Home Country’s Jurisdiction Over Human Rights Violations By Transnational Corporations

In this paper,home country jurisdiction for human rights violations by transnational corporations was studied based on the relevant theories and practices.Firstly,the jurisdiction basis of the host country on the human rights violations by transnational corporations was studied,and the result pointed out that the host country has jurisdiction over the subsidiaries that have committed human rights violations in its territory,regardless of its territorial jurisdiction or personal jurisdiction,but doesn’t have the jurisdiction over the foreign parent company.Seen from legislative practice,the jurisdiction of the host country over the parent company is mainly based on the principle of “Piercing the Corporate Veil”.Moreover,theoretically,the jurisdiction based on the principle of “Enterprise Liability” also can provide basis for the host country to exercise the jurisdiction over the foreign parent company.The principle of “Piercing the Corporate Veil” and “Enterprise Liability” are not only the attribution rules of substantive responsibility that require the parent company to be responsible for the infringement of the subsidiaries,but also the basis for the host country to exercise the jurisdiction over the foreign parent company.However,as a result of the extremely strict application conditions of the traditional principle of “Piercing the Corporate Veil”,the principle of “Enterprise Liability” has not been generally recognized recently,the jurisdiction of the host country over the foreign parent company is seriously limited.There are two reasons why host country have a limited jurisdiction basis: firstly,the host country relies on the investment brought by the transnational corporations,the jurisdiction capacity thereof is often not proportional to the powerful transnational corporations,and the host country doesn’t have the power and ability to expand its jurisdiction;secondly,even if the host country expands its jurisdiction over the foreign parent company,a positive conflict of the jurisdiction will be caused,and it is also difficult to obtain the recognition and enforcement of the home country on the judgement.Secondly,on the basis of pointing out the lack of jurisdiction of the host country and on the basis of the relevant judicial practice in the home country,the rules of jurisdiction of the home country on the human rights violations of transnational corporations and their recent development are examined in detail.This paper combs the statutory jurisdictional basis of the home countries of multinational corporations such as Britain,the Netherlands,the United States and Canada,and points out that the existing statutory jurisdiction basis of the home countries of transnational corporations mainly includes jurisdiction based on nationality,jurisdiction based on residence,jurisdiction based on continuing business activities and forum of necessity jurisdiction.The specific application of home country legal jurisdiction in judicial practices was also concerned in this paper.Based on the analysis of Vedanta Resources Plc v Lungowe case,A.F.Akpan v.Royal Dutch Shell Plc case and so on,it was pointed out that the general jurisdiction rules based on residence stipulated in Article 4(1)of “the BrusselsⅠRegulation Recast” of the European Union provide strong support for the EU’s home country to exercise the jurisdiction over the parent company of a transnational corporation.In addition,the related litigation rules in the domestic laws of some member states also provide the jurisdiction basis for the litigation against the subsidiary.Whilst the European Union strengthened its jurisdiction over the human rights violations by transnational corporations,the United States on the opposite side of the ocean contracted its general jurisdiction which was consistently moderate through Goodyear Dunlop Tires Operations S.A.v.brown case and Daimler AG v.Bauman case.Through the above cases,the U.S.Supreme Court restricted the general jurisdiction over foreign parent company on the standard of “substantially at home”.The standard strictly limits the general jurisdiction over a foreign parent company to the place of registration and the principal place of business of the company,which is a major obstacle for victims to sue a foreign parent company in the United States.The relevant practice of the forum of necessity jurisdiction with the exception of the traditional regional jurisdiction and personal jurisdiction shows that the relevant countries have made strict interpretation on one of the constituent elements of the forum of necessity jurisdiction,which are “cannot access to foreign courts”,so that the rule is not applicable on the issue of human rights violations by transnational corporations at present.Finally,in this paper,it argued that the home country should expand its jurisdiction basis in the future on the issue of human rights violations by transnational corporations,with three reasons as follows: one is to avoid the failure of the host country’s responsibility to protect human rights;the other is to strengthen the implementation of the responsibility of transnational corporations to protect human rights;and the third is to ensure the implementation of the extraterritorial protection obligations of the home country.In this paper,on the basis of judicial practice,specific rules and suggestions on how to expand the jurisdiction of the home country were put forward as follows: first,in the case of Foreign Direct Liability on the basis of the parent company’s tort liability for negligence,lowering the procedural threshold of jurisdiction over the parent company based on domicile,as provided for in Article 4(1)of “the BrusselsⅠRegulation Recast”,that is,lowering the plaintiff’s burden of proof that the action against the parent company is not doomed to failure;second,the applicable conditions of the forum of necessity jurisdiction are weakened,so as to provide a last judicial way for the victims who are difficult to obtain the judicial aid in the host country and other countries;and third,the jurisdiction based on the consent of the “registration and business” of the transnational corporations in its territory is recognized,so as to reduce the adverse effects caused by Goodyear Dunlop Tires Operations S.A.v.Brown case and Daimler AG v.Bauman case and strengthen the relief for the victims suffered the human rights violations by transnational corporations.