Tort Litigation against Transnational Corporations and the Challenge of Jurisdiction: An Introduction

This post has been written by Ekaterina Aristova, Leverhulme Trust Early Career Fellow, Bonavero Institute of Human Rights, Faculty of Law, University of Oxford. It is the first post in the EAPIL blog online symposium on Ekaterina Aristova, Tort Litigation against Transnational Corporations: The Challenge of Jurisdiction in English Courts (OUP 2024). The others contributions, by Peter Muchlinski, Geert Van Calster, Mukarrum Ahmed, Dalia Palombo and Ekaterina Aristova can be found here, here, here, here and here respectively. Readers are encouraged to participate in the discussion by commenting on the posts.

I am delighted that the EAPIL blog is hosting a symposium on my book, Tort Litigation Against Transnational Corporations: The Challenge of Jurisdiction in English Courts, published earlier this year in the Oxford University Press Private International Law Series. This symposium provides a unique opportunity to reflect on the book’s key themes and to engage in meaningful dialogue about the crucial questions it raises.

At its core, the book examines how English courts navigate jurisdictional challenges in cases involving transnational corporations (TNCs). Specifically, it focuses on tort litigation brought against parent companies registered or having their headquarters in England and their foreign subsidiaries for alleged human rights violations and environmental harm that occurred overseas. These claims leverage the frameworks of tort law and private international law, illustrating how civil remedies can serve as a vital mechanism for accountability when other avenues are unavailable or ineffective.

While the book is written from the perspective of English law, it also draws on examples of similar claims in other jurisdictions to broaden the discussion. For instance, it examines high-profile cases such as the Nevsun litigation in Canada concerning forced labour in Eritrea; the Shell  case in the Netherlands concerning environmental pollution in Nigeria; the KiK case in Germany addressing the deaths of factory workers in Pakistan due to a devastating fire; and the Chevron case in Ecuador involving environmental devastation in the Amazon region. These examples underscore the transnational nature of business and human rights litigation and the common challenges faced across different legal systems.

The Challenge of Jurisdiction

A central question explored in the book is whether English courts should exercise jurisdiction over mass tort claims when England is the home state of a TNC. My research demonstrates that this decision often carries significant consequences: if such claims cannot proceed in English courts, they frequently cannot proceed in any forum. This reality underscores the stakes of jurisdictional determinations, which serve not only as procedural thresholds but also as gateways to substantive justice.

English courts’ decisions on jurisdictional issues reveal critical tensions inherent to cross-border disputes. These cases often involve a delicate balancing act: on one side are victims who face profound obstacles to obtaining redress in their home states due to systemic power imbalances, weak governance or lack of effective remedies. On the other side are corporate defendants, whose legal strategies frequently invoke concerns about predictability, fairness and the alleged risks of judicial overreach or forum shopping.

I argue in the book that the approach of the English courts to the operation of the rules of jurisdiction in business and human rights litigation is workable in practice.

In the pre-Brexit framework, the application of the Brussels I Regulation and the principles of English common law secured a few important wins for the claimants. For instance, the landmark Supreme Court judgments in Vedanta and Okpabi cleared several hurdles necessary to successfully establish the jurisdiction of the English courts against both the local parent and the relevant foreign subsidiary. This approach proved to be viable for many claimants.

Nevertheless, I still aim to demonstrate that the rules of jurisdiction are characterised by a conceptual challenge – a lack of normative recognition that these claims are substantially connected with England. In practice, this is problematic in the context of the wide discretionary powers of the English courts to stay proceedings in favour of the foreign forum or refuse service out of the jurisdiction. The change in the UK’s status under the Brussels I Regulation does not mean that overseas claims against British multinationals are now banned in England. The claimants are able to rely on the common law rules to initiate proceedings against English parent companies as well as foreign subsidiaries as necessary or proper parties. At the same time, as evidenced by the ongoing proceedings against Dyson, a revival of the forum non conveniens control may weaken the position of foreign claimants before the English courts. If the claimants fail to produce cogent evidence that no substantial justice will be obtainable in the foreign forum, the English courts may decline jurisdiction over claims against both local parent companies and foreign subsidiaries.

I argue that the position of claimants would be improved if greater recognition were afforded to the underlying nature of the dispute when identifying the appropriateness of England for trying business and human rights claims. These cases should not be viewed as a dispute arising solely from the subsidiary’s operations and, as such, having forum connections solely with the foreign state. Rather, they are about allocating liability between the parent company and the subsidiary, and the jurisdictional inquiry could and should reflect it.

Private Claims, Public Interest

An important theme running through the book is the dual nature of these claims: while they are framed as private disputes, they often serve broader public interest purposes. Tort litigation against TNCs is more than a matter of resolving liability between claimants and corporate defendants – it also functions as a tool for advancing corporate accountability for human rights and protecting emerging public norms.

By situating these cases at the intersection of private law and public interest, the book highlights how tort litigation challenges traditional distinctions between public and private norms. It argues that English courts’ approaches to jurisdiction in these cases have far-reaching implications for the global regulatory landscape, particularly in the field of business and human rights.

Looking Ahead

The book concludes by advocating for a more nuanced approach to jurisdiction in tort litigation against TNCs, one that complements rather than replaces substantive legal rules on corporate accountability. It argues that private international law when applied thoughtfully, can serve as a powerful tool to bridge governance gaps in the business and human rights field. While litigation is not a perfect solution, it plays an important role in the absence of binding international frameworks. It offers victims a means of asserting their rights, challenging power imbalances and seeking remedies in otherwise inaccessible contexts.

I am thrilled to have an esteemed panel of discussants – Professor Peter Muchlinski, Professor Geert van Calster, Dr Dalia Palombo and Dr Mukarrum Ahmed – join the symposium. Each brings a unique perspective to the debates sparked by the book, from legal theory to regulatory practice, and I am eager to hear their insights.

This symposium is an opportunity to engage critically with the questions at the heart of my book: How should courts balance competing interests in cross-border tort claims? What role should home states play in regulating their corporations’ overseas conduct? And how can private international law evolve to meet the challenges of globalisation? I look forward to these discussions and hope they will inspire new thinking about the intersections of law, business and human rights.