The Common Denominator of the Trafigura Case, Foreign Direct Liability Cases and the Rome II Regulation

16(2) European Review of Private Law 283, 2008

30 Pages Posted: 28 Jan 2013 Last revised: 4 Jul 2013

See all articles by Liesbeth F.H. Enneking

Liesbeth F.H. Enneking

Erasmus School of Law; Utrecht University - Utrecht Centre for Accountability and Liability Law

Date Written: March 1, 2008

Abstract

As part of a current trend towards so-called ‘foreign direct liability cases’, attempts are being made to hold parent companies of multinational corporations liable in their home countries for damage caused in host countries. This trend, of which the Trafigura case serves as a recent example here, suggests that tort law may have a regulatory part to play when it comes to the transboundary activities of multinational corporations. However, the extent to which tort law can act as a regulatory mechanism is dependent on its applicability, which, in turn, is determined by private international law.

The recently adopted Rome II Regulation, which lays down conflict-of-law rules for non-contractual obligations, will only have a limited conducive effect on the feasibility of the regulation through tort law of the transboundary activities of multinational corporations. On the basis of this Regulation, it is only in cases where the resulting damage consists of environmental damage that home country tort law may be applicable. In all other cases, attempts to hold the parent company of the multinational corporation liable for damage caused in the host country will have to be based on the tort law of the host country.

This effectively diminishes the feasibility of home country tort law as a mechanism for the regulation of the transboundary activities of multinational corporations.

Keywords: Foreign direct liability, Business & human rights, Corporate social responsibility, Private international law, Rome II Regulation

JEL Classification: K13, K32, K42, M14

Suggested Citation

Enneking, Liesbeth, The Common Denominator of the Trafigura Case, Foreign Direct Liability Cases and the Rome II Regulation (March 1, 2008). 16(2) European Review of Private Law 283, 2008, Available at SSRN: https://ssrn.com/abstract=2206817

Liesbeth Enneking (Contact Author)

Erasmus School of Law ( email )

3000 DR Rotterdam
Netherlands

Utrecht University - Utrecht Centre for Accountability and Liability Law ( email )

Janskerkhof 12
Utrecht, 3512 BL
Netherlands
+31302537196 (Phone)

HOME PAGE: http://www.uu.nl/leg/staff/LFHEnneking/0

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