Civil litigation in home countries of transnational corporations may provide an opportunity for victims to sue parent corporations for human rights violations committed by their subsidiaries in host States and to claim damages.
The debate on universal jurisdiction and liability standards of businesses for serious human rights violations that arose from the Aliens Torts Statute (ATS) and especially concerning Kiobel vs. Shell, will be observed and taken into consideration in the research project work. In addition, the possibilities and limitations of transnational civil actions in Europe are going to be examined. In contrast to the ATS, transnational actions in Europe are based on general principles of national jurisdiction’s tort law. Parent companies of transnational corporations are not directly liable for the commission of the violation of human rights by the subsidiary in the host country, but for the failure to exercise due care and oversight. The research project will analyse the role these transnational lawsuits can play in shaping and further developing responsibility and liability of transnational corporations for human rights violations.
In the national context, the procedural and substantive obstacles to access to justice will be critically examined by reference to case studies. Moreover, attention will be paid to the specific problems of third party liability and the research team will critically observe the principles of corporate law. A focal point of research will be their application in transnational lawsuits and business relationships in global supply chains. The complexity of global supply chains makes it difficult to establish a causal connection between the human rights violation committed by the subsidiary on the one hand, and the parent corporation’s violation of its duty of care on the other hand. Accordingly, within the research project it will be discussed to what extend and under which circumstances the parent of a transnational corporation can be held liable for human rights violations in supply chains. Finally, the project will also analyse developments in other countries from a comparative perspective.
Apart from civil liability, which is based on reparation and compensation, the possibility of corporate criminal liability for massive human rights violations is going to be examined. The original purpose of punishment - deterrence and prevention – will be the basis of considerations. Various forms of committing and participating in offenses by individual entrepreneurs or companies will be taken into account. Our research will focus on criminal cases in the home states of parent companies. Within the research project, transnational criminal cases, such as charges brought in Germany and Switzerland as strategic litigation against Transnational Corporations (TNC) as such or individuals in the company will be analysed. Furthermore, the overall sociological context and various approaches from other national legal systems, in which an individual or collective criminal treatment for serious human rights violations by companies has already taken place, are examined in greater detail. Simultaneously, efforts to introduce corporate criminal liability in Germany are observed. In addition, international criminal law approaches from e.g. the International Criminal Court in The Hague, the ad hoc tribunals and regional institutions such as the African Court on Human Rights will be pursued and examined. By using different methodological approaches, particular problems according to corporations and transnational criminal law, such as questions of omission and duty of care, criteria of attribution and questions of intent and individual guilt, should be identified. Building on this, solutions to the identified problems will be discussed and developed.