Private Solutions to Global Crises

St. John's Law Review Volume 89 Number 4 Volume 89, Winter 2015, Number 4 Article 2 October 2016 Private Solutions to Global Crises Gregory R. Day Follow this and additional works at: https://scholarship.law.stjohns.edu/lawreview Part of the Business Organizations Law Commons, and the Civil Procedure Commons Recommended Citation Gregory R. Day (2015) "Private Solutions to Global Crises," St. John's Law Review: Vol. 89 : No. 4 , Article 2. Available at: https://scholarship.law.stjohns.edu/lawreview/vol89/iss4/2 This Article is brought to you for free and open access by the Journals at St. John's Law Scholarship Repository. It has been accepted for inclusion in St. John's Law Review by an authorized editor of St. John's Law Scholarship Repository. For more information, please contact . FINAL_DAY 6/28/2016 1:04 PM ARTICLES PRIVATE SOLUTIONS TO GLOBAL CRISES GREGORY R. DAY† INTRODUCTION Courts of law are poorly equipped to hear allegations that a multinational corporation (“MNC”) has transgressed human rights1 or committed other global torts.2 This is because most abuses occur in the developing world where local authorities lack the capacity and political will to prosecute western corporations.3 In fact, some developing countries explicitly refuse to regulate † Assistant Professor of Legal Studies in Business, Spears School of Business, Oklahoma State University. This Article benefited from helpful comments and suggestions offered at the Southeastern Academy of Legal Studies in Business Conference, for which the author is extremely grateful. Numerous lawyers, professors, and human rights practitioners dedicated their time and attention to this work, including Bob Thompson, Claes Cronstedt, Emma Lindsay, Rob Wayss, Michael Goldhaber, Haskell Murray, Tim Samples, Thomas Curry, Laurie Lucas, Jack Wroldsen, Kurtis Mason, Nadine Robles, and Shawna Bray. 1 Human rights abuses are torts. Accordingly, this Article frequently uses the term “human rights” due to the topic’s saliency and for the sake of simplicity. However, the discussion is not meant to be limited to only human rights abuses, considering that the same legal analysis is generally applicable to transnational torts. See, e.g., Roger P. Alford, Human Rights After Kiobel: Choice of Law and the Rise of Transnational Tort Litigation, 63 EMORY L.J. 1089, 1091 (2014) (“Human rights violations are transnational torts. Torture is assault and battery. Terrorism is wrongful death. Slavery is false imprisonment. Federal law concedes as much . . . .”). 2 See Simon Chesterman, Oil and Water: Regulating the Behavior of Multinational Corporations Through Law, 36 N.Y.U. J. INT’L L & POL. 307, 307 (2004) (discussing the difficulties associated with courts sanctioning corporate human rights transgressions, especially oil companies, in the developing world, difficulties that are due to the legal implications of state sovereignty and the relative power advantages enjoyed by oil companies over developing countries). 3 See Jan Wouters & Cedric Ryngaert, Litigation for Overseas Corporate Human Rights Abuses in the European Union: The Challenge of Jurisdiction, 40 GEO. WASH. INT’L L. REV. 939, 939–40 (2009) (“[Developing countries] hardly regulate the activities of transnational corporations ([M]NCs). In some instances, they do so on purpose in order to attract foreign direct investment. In other instances, a regulatory vacuum arises because of a nonfunctioning or corrupt government. Either way, vulnerable populations may fall victim to the practices of [MNCs].”). 1079 FINAL_DAY 1080 6/28/2016 1:04 PM ST. JOHN’S LAW REVIEW [Vol. 89:1079 MNCs in hopes of attracting international business and investment.4 Although victims and their families also file human rights lawsuits in European and North American courts, jurisdictional and sovereignty obstacles typically prevent western The result is a nations from adjudicating their claims.5 landscape in which MNCs rarely suffer liability for their parts in human rights abuses6—and without the threat of liability, commentators assert that little encourages MNCs to adopt socially desirable behaviors.7 The historical record is replete with examples. Shell Oil allegedly helped the Nigerian government violently suppress local protestors,8 and California’s Occidental Petroleum Corporation contributed to the bombing of a Colombian village—both companies avoided liability.9 In fact, human rights 4 Id. at 939. See, e.g., Daimler AG v. Bauman, 134 S. Ct. 746, 761 (2014) (ruling that general jurisdiction is only supported when a corporation is essentially “at home” in the forum court and “at home” typically refers to the state where the corporation has its principle place of business or is incorporated, or the specific incident must have sufficient contacts with the forum court); see also Beth Van Schaack, In Defense of Civil Redress: The Domestic Enforcement of Human Rights Norms in the Context of the Proposed Hague Judgments Convention, 42 HARV. INT’L L.J. 141, 153–54 (2001) (noting that personal jurisdiction is largely grounded in the idea of physical presence in a state); Wouters & Ryngaert, supra note 3, at 946–47 (2009) (discussing that European Union countries will not hear a torts claim unless a sufficient “nexus” exists between the tort and forum court). 6 Robert C. Bird et al., Corporate Voluntarism and Liability for Human Rights in a Post-Kiobel World, 102 KY. L.J. 601, 603 (2013–14) (stating that “the legal door [has] substantially closed on corporate liability” with respect to human rights abuses committed abroad). 7 See, e.g., Naomi Jiyoung Bang, Justice for Victims of Human Trafficking and Forced Labor: Why Current Theories of Corporate Liability Do Not Work, 43 U. MEM. L. REV. 1047, 1048 (2013) (detailing the ability of corporations to evade liability for human rights abuses, including trafficking and forced labor); see also Dennis Hayashi, Preventing Human Rights Abuses in the U.S. Garment Industry: A Proposed Amendment to the Fair Labor Standards Act, 17 YALE J. INT’L L. 195, 199– 200 (1992); Mara Theophila, “Moral Monsters” Under the Bed: Holding Corporations Accountable for Violations of the Alien Tort Statute After Kiobel v. Royal Dutch Petroleum Co., 79 FORDHAM L. REV. 2859, 2862 (2011) (noting that considering the recent limitations imposed on the Alien Tort Statute, corporations will rarely face liability for their torts and crimes committed in the developing world). 8 See Jena Martin Amerson, What’s in a Name? Transnational Corporations as Bystanders Under International Law, 85 ST. JOHN’S L. REV. 1, 3–5 (2011) (recounting Shell Oil’s role and legal status in Nigeria as the Nigerian government violently squelched local protests). 9 Mujica v. AirScan Inc., 771 F.3d 580, 584 (9th Cir. 2014), cert. denied sub nom. Mujica v. Occidental Petroleum Corp., 136 S. Ct. 690 (2015) (noting that Occidental supplied material support for the Colombian government in hopes of protecting (...truncated)