Corporate Human Rights Violations and Private International Law. A Facilitating Role for PIL or PIL as a Complicating Factor?

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Corporate Human Rights Violations and Private International Law. A Facilitating Role for PIL or PIL as a Complicating Factor?

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Year 2012 Volume 6 Number 1 Page 192 Language English Court Reference V. VAN DEN EECKHOUT, “Corporate Human Rights Violations and Private International Law. A Facilitating Role for PIL or PIL as a Complicating Factor?”, HRILD 2012, nr. 1, 192-218 Recapitulation In this article the author explores the role private international law (‘PIL’) could play in addressing human rights violations committed by a multinational company operating outside Europe ? possibly in a conflict zone ? in a civil action in Europe. The article examines the feasibility of civil recourse in a European country seen from the perspective of PIL. Is PIL functioning as a neutral instrument – identifying the competent court(s) and the applicable law in a neutral way ? or does PIL lend itself rather to functioning as a tool that serves either the economic concerns of multinational companies or the aims of plaintiff s who wish to hold companies accountable? To answer this question, the author undertakes a technical and legal analysis of PIL rules and techniques and evaluates them with a critical eye. In the analysis, the concept of ‘access to justice’ is used as a key concept. Access to justice is linked both with PIL rules on jurisdiction and with PIL rules on applicable law: rules of jurisdiction are decisive in ‘opening’ the door to proceedings in a European country, in which subsequently – to the extent that the rules of applicable law allow this – human rights may be invoked and the interests of third-country victims as ‘weaker parties’ may be protected. The area of PIL rules to be studied is ? mainly – that of torts, with special attention given to issues of negligence, omission, duty of care and complicity. As the PIL rules of European Member States are increasingly being ‘communitarised’, the main PIL rules to be studied and analysed in this article are sources of European PIL. Thus, the focus will be on the Brussels I Regulation (including aspects of the ongoing revision process of this Regulation, particularly proposals which could either broaden or limit the possibility of starting proceedings in a European country) and the Rome II Regulation as unified European PIL sources. In respect of the application of Rome II Regulation, the analysis takes account of potential national differences: evaluating the plausibility of various results is important, because it is conceivable that plaintiff s may choose between several European courts in light of the advantages or disadvantages of the specific ways in which national courts apply the Rome II Regulation (‘shopping’ possibilities for plaintiff s) and because it is conceivable that companies will be influenced by these differences in deciding where to ‘establish’ their headquarters and where to ‘take decisions’ etc. And indeed, the system of the Rome II Regulation makes it conceivable that different results are obtained depending on the European court that hears the case. But what is more: the current literature is for the most part rather sceptical about the possibilities the Rome II Regulation offers to third-country victims of violations of human rights committed by companies outside Europe. Accordingly, although some of the avenues for plaintiff s allowed by the system of the Rome II Regulation appear to be underestimated in the literature – and although even the current version of the Rome II Regulation has the potential to enhance human rights – there are still hurdles to be removed. This raises the question whether the system of the Rome II Regulation needs to be amended or, alternatively, ‘fleshed out’ with a set of specific rules. This could comprise a number of actions. One is broadening the scope of Article 7 of the Rome II Regulation. A second is the unification of mandatory rules, e.g. similar to the way in which the European legislator intervened in international labour law by unifying mandatory rules in the Posting Directive ? see the opening offered by the ‘overriding mandatory rules’ of Article 16 of the Rome II Regulation. A third is promulgation – on a European level? – of statutory duties for companies with regard to extraterritorial compliance with human rights standards and creating more ways of taking into account national or European rules on extraterritorial corporate criminal responsibility for human rights violations ? see the opening offered by the ‘rules of safety and conduct’ of Article 17 of the Rome II Regulation. A fourth is unification of ‘surrogate law’ for cases where the plea of public order under Article 26 of the Rome II Regulation is successfully invoked.