Developing Access-to-justice Standards for Transnational Impact Litigation: What role for National Courts?

Description

Over the last few decades, the world is witnessing fundamental changes in the distribution of economic power among nations. In the aftermath of the cold war the biggest economies and the most powerful states were located mostly in the political West. However, the world has since grown increasingly multipolar, with a number of emerging economies joining the club, as the significance of traditional powers fades away. In this global setting, the competition between the world’s biggest economies for access to limited energy resources is increasing. Arguably, this competition takes place at the expenses of human welfare and environmental protection in developing countries, hence raising questions of global justice. Faced with liability claims in transnational contexts, the patchwork of national judiciaries with largely territorial jurisdictions has produced a ‘transnational access-to-justice gap’ that hinders the victims’ legitimate aspiration for remedy. Accordingly, the UN Guiding Principles on Business and Human Rights asks States to ‘take appropriate steps to ensure the effectiveness of domestic judicial mechanisms when addressing business-related human rights abuses, including considering ways to reduce legal, practical and other relevant barriers that could lead to a denial of access to remedy.
Whereas access to justice is generally recognized as a human right under global and regional treaties, it is doubtful whether these international standards actually encompass transnational litigation. This paper seeks to elucidate the role that national courts may play, either unilaterally, or in coordination with its correlates in other countries, so as to avoid situations of denial of justice with respect to transnational liability claims. One may argue that courts in democratic countries are losing the traditional deferential approach towards their governments in the conduct of international relations. However, little as they are, access-to-justice standards for transnational litigation have basically been developed in Western legal cultures. But may they be extrapolated to other legal cultures and systems, in a multi-civilizational and increasingly multipolar world? Admittedly, courts in democratic developing countries seem to contribute decisively to a constitutionalism of the Global South, which actively promotes access to justice for the disfavoured. However, what about public interest litigation in non-democratic countries like China? May this world-wide disparity in domestic access-to-justice standards trigger a race to the bottom in the present context of increasing competition for access to energy resources? The paper concludes by forwarding some thoughts on the necessity of a global access-to-justice standard, based on the imperative of global fairness and justice.

Period	3 Jul 2014
Event title	Energy for a Fair Society on a Safe Planet: Annual Colloquium of the IUCN Academy of Environmental Law
Event type	Conference
Conference number	12
Location	Tarragona, Spain
Degree of Recognition	International