Another barrier to remedy for victims of human rights abuses is that courts may lack jurisdiction over the defendant in the case. As a threshold matter, for a court to adjudicate a case, it must have jurisdiction over the person who is the defendant, known as in personam jurisdiction, or personal jurisdiction. Almost always a court will have personal jurisdiction over an entity (a parent, subsidiary, or other entity) if it is domiciled or incorporated in the court’s country. Thus, if a victim of a human rights abuse can bring a claim against the corporate entity involved the harm in the country where the victim lives and the harm occurs, because the entity is domiciled or headquartered there, personal jurisdiction usually exists and will not typically pose a barrier to remedy. Similarly, if a victim is able to bring a claim for extraterritorial harm against the parent company in the parent company’s domicile or country where they are headquartered (either because they can “pierce the corporate veil” or because of the availability of an alternative theory allowing the victim to sue the parent), personal jurisdiction typically will not present a problem. Unfortunately, and as discussed above, in the high-risk countries and industries where human rights abuses take place, these situations are comparatively rare. Either the host country does not permit the cause of action, or there is no ability to pierce the corporate veil, or there is another barrier to suit. However, where a victim attempts to sue an entity, whether a parent, subsidiary or other entity, in a country that allows a cause of action for the harm but is not the country of legal domicile, personal jurisdiction may pose an insurmountable obstacle. For example, due to barriers in their own country, a victim might try to seek damages against an offending entity, such as a subsidiary, in the country where its parent is located; similarly, a victim may try to seek damages against a parent company that was involved in the abuse where it conducts substantial business, has offices, or operates through a subsidiary or subsidiaries. It is in these situations, where the country may well provide a cause of action that would allow the victim to bring a claim, that courts might find they do not have personal jurisdiction over the proposed defendant entity, and thus cannot adjudicate the case.

There are multiple obstacles to accessing judicial remedies for transnational harms, all of which combine to make access to justice for victims of human rights violations by TNCs exceptionally difficult and frequently impossible. The twin principles of separate legal personality and limited liability, together with limitations on extraterritorial jurisdiction and the evidentiary burdens of bringing a claim, are major barriers that victims encounter. While each issue plays an important role in denying victims a chance of obtaining access to remedy, the complex corporate structures that characterize the organization of modern business are at the heart of these obstacles. In the absence of legislation clarifying standards for parent company liability, victims face an enormous challenge to demonstrate how a parent company of a multinational enterprise, domiciled in the home state, bears responsibility for the harm carried out by its subsidiary in the host state.

The limitations of subject matter jurisdiction present significant barriers to victims seeking a remedy for business-related human rights violations. Even if courts can assert personal jurisdiction over a corporate defendant, the government of any particular country may not give its courts permission to hear and adjudicate the types of claims that arise from human rights or severe environmental torts. In order to bring a lawsuit, a person has to be able to have a legal claim. Sometimes these claims, which are called causes of action, come from the parliament, legislature, or other legislative body, which decides what sort of claim its citizenry can bring before court. In some systems, typically the common law system, courts can also recognize a claim based on the common law.

A description of the varied types of complex business structures employed by large, transnational businesses is outside the scope of this book. However, a few key facts about corporate growth and structure are important to note, given the current jurisdictional paradigm’s focus on the “home” (or in Europe, domicile) of a corporation – a paradigm that is based on outdated notions of how TNCs are structured. First, the sheer growth in number of TNCs has changed the operation of business and the resultant potential for human rights violations at the global scale. The number of TNCs – including parent companies and subsidiaries – has grown exponentially over the last fifty years. Moreover, as companies grow in size and expand overseas, the number of subsidiaries tends to increase and companies’ structures become even more complex.1 Over the last several decades, as TNCs have grown and created other corporations, they have rapidly changed form, with the emergence of complex multi-tiered corporate structures which include numerous affiliated entities that collectively conduct the business of the enterprise.2 As a result, it is difficult to determine ownership of TNCs’ various affiliated companies or to compile complete financial data on TNCs due to their complex structure, the existence of holding companies, and the fact that a subsidiary can be owned by multiple parent corporations.3 Lack of transparency surrounding ownership and existence of various TNC affiliates only exacerbates the problem.

One purpose of this book was to illustrate the power imbalance between a TNC and the communities it serves. TNCs benefit immensely through operations in developing countries that often have fragile governments and judicial systems. Nonconsenting community members, meanwhile, absorb nearly all the risk and costs – to their lives, health, and livelihoods – and are usually unable to achieve judicial remedy for harms they suffer. This paradigm is not fair, moral, or sustainable, either legally or economically.

Before discussing the barriers to bringing claims against TNCs in countries where they are incorporated or domiciled (“home countries”), or where they engage in significant business, it is first important to understand why victims cannot, and thus do not, bring claims against TNC affiliates in their own countries where the harm occurs – the host country. In an ideal world, all countries would have regulatory systems sufficient to prevent harm to individuals and communities, and judicial or judicial-like mechanisms to provide for a remedy in the event that businesses engage in tortious actions, whether directly or vicariously. Many wonder why the victims simply do not bring a claim in their own country and question whether bringing a case outside their country is appropriate. Even the US Supreme Court has suggested that victims of human rights abuses should simply bring the case in their home country.1 However, it is not so simple. Indeed, if the victims could bring a claim in their own country and obtain a remedy, it would be much easier for them given the difficulty in bringing a case abroad against a parent company, and they would typically prefer to do so.2 Yet, the sad reality is that this is often not possible in many host countries where TNCs operate. First, many of these host countries do not have sufficient regulations to prevent harm; in fact, as a result of globalization, many have done away with regulations in order to attract transnational business.

As discussed in Part I, there is increasing international consensus that it is unfair and unjust for parent corporations to receive the immense financial benefits derived from operations of subsidiaries or affiliates while being able to avoid liability when those wholly owned subsidiaries engage in human rights violations, even if the parent corporation is not directly at fault. Indeed, it is clear that the doctrine of limited liability, as applied to corporate parents, should be reconsidered – at least in circumstances such as high-risk industries operating within fragile or high-risk countries where remedies for serious torts are probably unavailable within the legal system of the subsidiary’s domicile.