This paper examines recent developments in the field of the legal responsibility of corporate groups for environmental harm. It focuses on English and Dutch court rulings in Vedanta, Okpabi and Four Nigerian Farmers, as well as ongoing developments in the context of the SaMarco litigation, and argues that these cases demonstrate an increased judicial willingness to confront the transnational character of corporate decision making and its impact on the environment. This changed disposition has triggered three dynamics which the paper qualifies as three ‘productive dislocations’: a legal conceptual dislocation, a dislocation of jurisdiction, and a dislocation of adjudication.
Conceptual dislocation refers to a shift in the judicial conceptualisation of corporate control from a primarily operational to a regulatory notion. The dislocation of jurisdiction and adjudication, in turn, refer to the phenomenon of courts in the Global North becoming a forum for litigation against companies located in the Global South and, relatedly, such courts having to apply foreign law in their adjudication. The paper presents these dislocations as simultaneously productive and disruptive. They are productive because they enable the removal or accommodation of certain obstacles that have long stood in the way of access to environmental justice. They are disruptive because each of the three dislocations raises a set of new challenges and comes with in-built limitations. Conceptual dislocation of corporate control lowers the threshold for parent company liability, but it simultaneously creates boundary problems and its normative coherence is questionable. Jurisdictional dislocation introduces new pathways to access to justice for victims of pollution in the Global South, but the fact that these pathways are literally thousands of miles long, stretching between Lusaka and London, injects a regrettable remoteness in the delivery of justice. Adjudicative dislocation is the logical consequence of joining cases against different actors in corporate groupings, but it inevitably raises questions about the quality of judicial decision making.
In order fully to capitalise on the productive impacts of the three dislocations, the paper argues that it is important not to view them as a new settlement but instead as an invitation towards more radical, transformative change. To this end, the paper opens the discussion on what such transformative change might looks like and how it could be effectuated. In reference to conceptual dislocation, this includes a fundamental review of the normative justifications for corporate liability in an era of transnational corporate interdependence. To overcome dislocations of jurisdiction and adjudication, the paper reflects on the prospects for a transnational environmental court and, alternatively, for enhanced transnational judicial cooperation.
European Business Law Review