Judicializing Environmental Governance? The Case of Transnational Corporate Accountability

Abstract

The transnational scope of corporate activities often results in extraterritorial environmental harm elsewhere on the planet. Within the European context, two legal developments are challenging this state of affairs. First, several legislative initiatives seek to establish due diligence standards for corporate activities along global supply chains. Second, domestic courts increasingly assume jurisdiction over environmental damage arising from corporations’ subsidiary operations abroad. This article argues that both these developments are emblematic of the transnationalization and judicialization of environmental governance in the twenty-first century. Rather than providing particularized relief only, national judges may become crucial allies in the construction and enforcement of polycentric regimes. However, the advent of unilateral judicial interventions in the environmental affairs of other countries also raises concerns over the international and institutional legitimacy of the emerging corporate accountability apparatus.

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“…The theory and practice of international corporate governance of leading world companies are constantly evolving and changing. Therefore, for any company aiming to be competitive on the global stage, it is necessary to carefully examine international experience, adapting it to existing socio-economic conditions, under the position of D. Bertram (2022). This determines the need to analyse the features of international corporate governance in the context of global cooperation in practically all countries, including Ukraine.…”

Mandatory due diligence laws and climate change litigation: Bridging the corporate climate accountability gap?

“…The developments in corporate climate litigation and MDD legislation summarized above are exemplary of the plurality of actors, modes of governance, and geographies that are involved in advancing corporate climate accountability. While there is a wealth of literature on the complex interactions between state and non‐state governance (Cashore et al, 2021; Eberlein et al, 2013), particularly in the context of climate governance (Andonova et al, 2017), the role of litigation is largely overlooked in these bodies of literature (but see Bertram, 2022). We suggest that climate litigation and MDD legislation may interact in three main ways: (1) MDD legislation can provide grounds for climate change litigation; (2) climate change litigation might fill gaps where MDD legislation does not yet exist or is weakly enforced; and (3) litigation may act as a driver for MDD legislation.…”

“…While much literature has considered corporate climate litigation and MDD laws in isolation, some recent studies explore connections between MDD legislation and climate action (Bright & Buhmann, 2021;Macchi, 2021Macchi, , 2022, whereas others note a growing use of due diligence concepts in climate litigation (Bertram, 2022;BIICL, 2021;Seck, 2022). This article contributes to this emerging body of scholarship by analyzing how corporate climate litigation and MDD legislation interact.…”