Courts, transnational law, litigation, human rights, corporations
This article explores a more expansive adjudicative role for domestic judiciaries in the U.S., U.K., and Canada in private law disputes that concern personal and environmental harm by multinational corporations that operate in the Global South. This expansive role may confront—although not necessarily upend—existing understandings around the separation of powers in common law jurisdictions. I canvass existing literature on judicial activism. Then, I detail legality gaps in the selected common law home states, which can be broken down into four categories: i) failed legislation; ii) deficient legislation; iii) judicial restraint; and iv) judicial deference.
I suggest three ways to actualize judicial activism in transnational business and human rights litigation. First, judges can heed Thomas Franck’s recognition that there is a distinction between judicial and foreign policy. That distinction becomes rather acute here since transnational business and human rights litigation does not directly involve governments as parties to the litigation. Second, judges can prioritize the need to fill transnational access to justice gaps. I examine two potential ways that judicial gap-filling can take place: expanding the list of violations deemed as part of the Alien Tort Statute’s ‘law of nations’ requirement and a better alignment of the ex ante / ex post flip in instances of FNC dismissals and foreign judgment enforcement. Third, transnational business and human rights litigation may be an apt area to employ judicial morality in deciding ‘hard cases.’ Judges can utilize a natural law framework that prioritizes corporate accountability over formalistic doctrinal conceptions.
Hassan M Ahmad, "Judicial Activism in Transnational Business and Human Rights Litigation" (2022) [unpublished].