Elgar original reference
Edited by Stephen Tully
Chapter 7: ‘Never Say Never Jurisprudence’: Comparative Approaches to Corporate Responsibility under the Law of Torts
Stephen Tully Introduction This chapter examines corporate responsibility under the law of torts with particular reference to the prospective liability of parent corporations for national and international legal violations committed by their overseas subsidiaries. The next section reviews fundamental principles of tort law within the North American, European and Australian jurisdictions and illustrates their application to corporations. The following section furthers this comparative approach by reference to the doctrine of forum non conveniens to demonstrate the importance of the choice of forum for corporate responsibility. The subsequent section discusses the choice of applicable law in conducting transnational litigation against corporations, including the implications of the recent Sosa decision of the US Supreme Court under the Alien Tort Claims Act. The purpose of reviewing these jurisprudential developments is to show how the operation of the burden of proof can disadvantage claimants and how the application of legal doctrines (such as act of state, sovereign immunity and forum non conveniens) can be manipulated to commercial advantage. Together these arguments support the overall theme that corporate legal responsibility can be shielded by governmental responsibility, thus enabling corporations to evade true accountability. The final section concludes. Tort law as a mechanism for corporate responsibility Tort law allows injured parties to commence actions against wrongdoers (known as tortfeasors) claiming damages for injuries caused by the commission of a civil wrong. There are several preconditions to initiating an action. First, claimants must establish that they enjoy sufficient standing (jus standi) to bring the claim, either as...
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