1 Setting the Scene
The relationship between Business and Human Rights (“b&hr”) and the concept of Corporate Social Responsibility (“csr”) have been at the centre of the political agenda and the legal discourse for several years, both at the international level and within individual countries.
The United Nations, as well as other international organizations, have established general principles recommending that both states and businesses take action in this context.1 Besides this extensive body of soft law instruments, and while a working group of the UN Human Rights Council is working on the elaboration of a binding treaty,2 hard rules are being developed in several countries.
Existing and proposed legislation reflect quite diverging approaches. While some countries (such as Switzerland)6 have only imposed reporting
While international and domestic debates generally focus on the substantive law aspects (and rightly so), one should not neglect the importance of private international law in this field. To understand correctly its relevance, the well-known and frequently used distinction between public and private enforcement offers a useful analytical framework.9
2 Public and Private Enforcement of Due Diligence Duties
National laws often provide for some form of public enforcement by state authorities of the (more or less wide) due diligence duties which they impose on businesses. The EU directive is no exception in this regard: its Articles 24
Such mechanisms of public enforcement are typical for many national or European regulations. Close equivalents can be found in the area of competition law, financial market regulations, data protection, and tax law, just to mention some of the most obvious and prominent areas.
With respect to public enforcement, private international law is not directly relevant. Indeed, the jurisdiction of the Member States’ supervisory authorities corresponds to the material and geographical scope of application of the rules, and the latter is defined unilaterally by the relevant regulation.
Thus, the EU directive, in its Article 2, determines which companies shall be subject to the directive and to its national implementation measures by defining, among others, the geographical connection that such companies should have with the European Union. In this respect, it is noteworthy that the directive not only targets “companies which are formed in accordance with the legislation of a Member State,” (Article 2(1)) but also “companies which are formed in accordance with the legislation of a third country,” provided that they generate a significant turnover in the European Union (Article 2(2)).10
In this framework, conflict-of-laws rules are also irrelevant, because the state’s supervisory authorities – when they have jurisdiction – systematically apply the law of the forum.
Besides public enforcement, private enforcement of due diligence obligations is also a possibility, at least in certain jurisdictions. It can take different
Private enforcement is sometimes expressly contemplated by the relevant b&hr legislation. This is the case with the 2017 French Act, which inserted a specific provision to that effect in the French Commercial Code.14 Article 29 of the EU directive offers another good example.15 The UN draft treaty also purports to oblige states to adopt rules on the legal liability of persons conducting business activities.16
However, even in the absence of specific provisions, a private claim can always be filed when the applicable law recognizes a valid cause of action,
Whatever the object of, and legal basis for, the claim, private enforcement typically raises private international law issues – unless the dispute is purely domestic, which is highly unlikely in the context discussed here. Such issues include the determination of the court’s jurisdiction and of the law governing the merits, the effects of parallel proceedings, and recognition and enforcement of the ensuing decision.
While less obvious than substantive law questions, private international law issues can prove extremely relevant in practice.18 Since litigation in this
It is therefore obvious that jurisdictional rules often have a decisive impact on the right of the victims to have access to justice, and in particular to well-equipped and impartial courts and efficient remedies. Among others, they will also influence the availability of specific procedures (such as collective redress) as well as the recognition of legal standing to the involved organizations, if any. In turn, the conflict-of-law rules will indirectly determine the existence of a specific cause of action (e.g. civil liability, negligence, breach of a duty of care, etc.) as well as the applicability of other more or less victim-friendly provisions (such as strict liability or need to prove liability; categories of damages and amount of compensation; limitation periods, etc.).
In this paper, some of these issues will be examined from a comparative perspective. The focus will be on the typical scenario of a claim for compensation filed in an EU Member State or in Switzerland for harm caused by a company’s business activities in a foreign country.
3 Jurisdiction
3.1 Claims Filed at the (European or Swiss) Domicile of the Company
Jurisdiction is easily available when a claim is filed in the country of the domicile of the corporate defendant, based on Article 4 of the Brussels Ia Regulation (“br”)19 or on the equivalent provision of Article 2 of the
In this respect, it should be recalled that Articles 63 br and 60 lc define the domicile of a legal person in very broad terms, including not only the company’s statutory seat, but also its central administration or principal place of business. Jurisdiction can be based, at the option of claimant, on either of such connections.
As for corporate claims, the courts at the seat of the company have exclusive jurisdiction under Articles 24 br and 22 lc.
These rules included in the European instruments pre-empt national rules on jurisdiction, and are also applicable when third countries are involved, notably when third country claimants file a claim in an EU Member State or in a Lugano State for harmful events that occurred in a third country.
It is also important to recall that such rules are “mandatory,” in the sense that the competent court cannot decline jurisdiction in application of the doctrine of forum non conveniens.21 This is not only true for the rules of exclusive jurisdiction, but according to the case law of the Court of Justice of the European Union (cjeu), also for those based on the defendant’s domicile.22 This is very different from several common law jurisdictions and in particular from the United States, where courts have frequently applied the doctrine of forum non conveniens to decline jurisdiction over U.S. corporate defendants for torts allegedly committed in foreign countries.23 Since Brexit, English courts are also again free to apply the doctrine of forum non conveniens, including in situations involving EU Member States. It is noteworthy that the 2023-updated version of the UN draft treaty requires states to limit the use of the doctrine of forum non conveniens in this area.24
However, while stay and dismissal of proceedings are mandatory under Article 29 br when identical proceedings have been filed first with the court of another EU Member State, Articles 33 and 34 br only allow for a discretional stay (and subsequent dismissal) when identical or related proceedings are already pending in a third country. Such a stay is not only subject to a positive “recognition prognosis” (in other words, the court of the Member State should be convinced that the decision that might be rendered in the third country is capable of being recognized and enforced in the forum), but can only be envisaged when it is required by the sound administration of justice. In such framework, it is not surprising that a request for a stay was rejected by English courts in important cases, including Jalla v. Shell26 and Município de Mariana v. bhp Group.27
Since the Lugano Convention does not include provisions equivalent to Articles 33 and 34 br, Contracting States may still rely on their national rules on parallel proceedings. Switzerland does provide for a stay when an identical claim was first filed abroad, but also subject to a “recognition prognosis.”28 By
3.2 Claims against Companies Incorporated in a Third Country
Under Article 2(2) of the EU directive, due diligence obligations extend to certain companies incorporated in third countries, provided that they generate a significant turnover in the European Union. In such cases, public enforcement by way of administrative sanctions and order for cessation is certainly possible, because supervisory authorities of the Member States would certainly have jurisdiction. However, this is not as clear in the case of private enforcement.
Indeed, the directive does not include any specific grounds for jurisdiction for claims based on civil liability within the meaning of Article 29. With respect to civil proceedings initiated against companies referred to in Article 2(2) of the directive, it will normally also be impossible to find a jurisdictional basis in the Brussels Ia Regulation. Indeed, such companies will have their statutory seat in a third country and will probably also lack a central administration or a principal place of business in an EU Member State (within the meaning of Article 63 br). Therefore, Member States’ courts will not be able to claim jurisdiction based on the company’s domicile (Art. 4 br) or on its seat (Art. 24 br, for corporate claims). In the absence of a domicile within the EU, the grounds of special jurisdiction of Article 7 will also be inapplicable so that jurisdiction will depend on national rules, as provided for in Article 6 br.29
While it is true that national rules of jurisdiction, similarly to Article 7(2) br, often refer to the place where the tort occurred30 and are often widely interpreted in line with the so-called “ubiquity” doctrine,31 this will not suffice to establish jurisdiction in a Member State in the scenario discussed here because both the place of the wrongful act and the place of the damage are
Moreover, courts in European countries do not exert jurisdiction on the mere basis of the defendant’s “continuous and systematic activities” within the forum (“doing business jurisdiction”), as was accepted in the U.S. at least until 2011.32
Admittedly, certain European countries provide for a forum necessitatis,33 and the insertion of a similar rule, specifically in the area of human rights litigation, was proposed by the Committee of Legal Affairs of the European Parliament in 202034 and had also been envisaged during the negotiations of the UN draft treaty.35 However, this exceptional jurisdictional ground can only be relied upon if claimants prove that proceedings abroad are impossible or cannot reasonably be initiated, and provided that the claim presents a significant connection to the country of the forum. The threshold is very high, and
To avoid such difficulties, it had also been suggested – without success – that a specific jurisdictional ground be included in the future directive.37
It is not certain, however, that EU institutions really wished to extend the jurisdictional reach of Member States’ courts to companies within the meaning of Article 2(2) of the directive. Indeed, it cannot be excluded that the gap between the wide extraterritorial jurisdiction of supervisory authorities (public enforcement) and the more limited reach of courts seized with civil claims (private enforcement) was intentional. Such a distinction also exists in the U.S., where the U.S. Supreme Court, relying on the well-known “presumption against extraterritoriality,” has also tended, in the last few decades, to interpret narrowly the out-of-state reach of private enforcement provisions included in important federal statutes,38 while the extraterritorial power of public authority to issue criminal or administrative sanctions, including in transnational cases, continues to expand.39
3.3 Multiple Defendants
In the typical scenario of human rights or environmental violations resulting from business activities in a foreign country, a claim against a Swiss or
It might not only happen that a joint claim is filed directly by claimants against multiple defendants, but also that some of the initial defendants file a cross-claim against third parties, alleging that these third parties are solely or jointly liable.
In such situations, filing joint claims against all companies or entities involved within a single set of proceedings provides clear practical and legal advantages.
Since the co-defendant (or the third party-defendant) is probably established in a foreign country and has acted and caused damage there, Swiss or European courts do not have jurisdiction based on domicile (Art. 4 br or 2 lc), nor on the special ground of the wrongful event (Art. 7(2) br, 5(3) lc or analogous national rules). Therefore, the claims against the multiple defendants could only be joined through application of rules on derived jurisdiction for related claims.
Such rules are available under Articles 8 br and 6 lc,40 but only when the co-defendant (or the third party-defendant) is domiciled in another EU member State or in a Contracting State of the Lugano Convention. By contrast, derived jurisdiction can only be invoked against co-defendants domiciled in a third country if provided for by national law. While several European countries do provide for such rules (although subject to specific conditions)41 this
To fill the gap, the inclusion of jurisdictional rules of derived jurisdiction would be helpful. Within the EU, such rules should ideally be included in the Brussels Ia Regulation. Indeed, when this instrument is next revised, the question of the possible extension of some of its provisions to defendants domiciled in a third country will undoubtedly be on the table again.43 Such an extension would particularly be desirable with regard to the rules of derived jurisdiction of Article 8. However, since the Brussels Ia Regulation will probably not be revised for several years, and considering the particular importance of this issue with respect to human rights litigation, the EU legislative bodies could have included a specific provision on derived jurisdiction in the directive.44
In Switzerland, a future revision of the existing legislation on b&hr – which might become necessary after the adoption of the EU directive – might represent the ideal opportunity to rethink Article 8a spila. While this provision was adopted with the intention of aligning the national jurisdictional rules with those of the Lugano Convention, it remains far behind its conventional counterpart.
4
4.1 Soft Law vs. Hard Law
As mentioned at the beginning of this paper, the principle of a specific business responsibility for human rights violations and environmental damage caused in foreign countries has been developed and fostered in numerous acts, declarations, and documents adopted by several international organizations, starting with the UN Guiding Principles.45 This impressive body of transnational principles and standards has exerted – and continues to exert – a far-reaching influence on the business community and national lawmakers. Despite its non-binding nature (or because of it), soft law can also be considered by courts (and arbitral tribunals) when they are called upon to adjudicate civil responsibility claims.
Indeed, soft law does not need choice-of-law rules; its non-binding but pervasive nature allows courts to refer to it freely, with no need for justification by strict conflict-of-laws reasoning. While this phenomenon is common in international arbitration, based on the traditional notion of lex mercatoria and because of the international cultural background of arbitrators, it is not excluded for state courts. In particular, in the absence of specific legislation, transnational principles provide judges with argumentative tools to craft new due diligence duties, or to read them into pre-existing civil liability rules.
Things are different when it comes to hard law rules, as those that have already been adopted in some states and those that will result from the implementation of the EU directive. In transnational cases, their application necessarily depends on conflict rules. In this respect, a distinction should be drawn between specific due diligence obligations and more general rules of tort law.
4.2 Due Diligence Obligations as Overriding Mandatory Provisions
According to a widespread (although not undisputed) opinion, the rules on due diligence included in specific b&hr legislation are applicable, in the country that issued them, as “overriding mandatory provisions” (lois de police) within the meaning of Art. 9 Rome i Regulation or Art. 18 spila.46
The characterisation of rules on a business’ due diligence obligations as overriding mandatory provisions is expressly stated in Article 29(7) of the EU directive, based on which “Member States shall ensure that the provisions of national law transposing this Article are of overriding mandatory application in cases where the law applicable to claims to that effect is not the law of a Member State.”49 It is noteworthy that this provision is included in Article 29, which specifically provides for civil liability in case of infringement.
In Switzerland, the text of the constitutional initiative for responsible enterprises similarly provided that the rules to be included in the Swiss legislation be applicable “irrespective of the rules on private international law,” in conformity with Article 18 spila.50 Although such indication is not included in the provisions that were finally adopted,51 this should not be an obstacle to their characterisation as overriding mandatory provisions within the meaning of Article 18 spila.
The characterisation as an overriding mandatory provision is probably less useful when a corporate claim is brought against the company or its managers to establish their liability under company law. Indeed, such claims will normally be governed by the law of the country where the company is incorporated (see, in Switzerland, Art. 155 spila) or, in certain countries, by the law of its factual seat or principal place of business. Such criteria would normally lead to the application of the European or Swiss due diligence rules, even if they were not characterized as overriding mandatory provisions.
4.3 The Law Governing Liability in Tort
While the application of the specific rules on due diligence can be ensured by their characterisation as overriding mandatory rules, this approach might lead to the simultaneous application of two different laws: one for the due diligence standards and another one (that designated by the conflict-of-law rules) for all other aspects of the tortious liability (other conditions of liability, notion and calculation of the damage, statute of limitations, etc.). To avoid this unfortunate result, the adoption of a conflict-of-law rule for this specific kind of tort should be envisaged, providing for the application of the law of the countries from which the company operates.
Under EU law, the law of the country where the company is based might become applicable for environmental damages, as well as for damages sustained by a person or property as a result of environmental damage, under Article 7 of the Rome ii Regulation,52 depending on how this provision is interpreted. This provision grants the persons seeking compensation for such damages the right to choose between the law of the country of the damage (as
It seems obvious that this notion will normally include physical acts accomplished in the same country where the harm was caused. Thus, the exploitation of a factory, of a mine, of an oilfield etc., will normally be regarded as the immediate cause of an environmental damage. This will probably be the case when a European or Swiss company carries out such activities directly in the foreign country concerned, or when a compensation claim is directed against a local subsidiary of the European or Swiss company or against another business entity in its value chain.
That said, the failure to comply with a company’s specific due diligence obligations might also be regarded as one of the causes of the damage and thus as part of “the event giving rise to the damage,” in particular (but not necessarily only) when the company does not directly act in the foreign country where the damage occurred. If this were accepted, it would be possible to conclude that the event giving rise to the damage was located in the country where the company has its seat or its central administration.
Such interpretation has been retained in at least one case, i.e., in the often-cited decision of the Hague District Court in Milieudefensie v. Royal Dutch Shell. In this case, the court ruled that that the corporate policy adopted by Shell at its seat in The Netherlands should be regarded as the event giving rise to damages in a plurality of other countries.54 On this premise, the court was able to apply Dutch law, as requested by claimant.
Although such interpretation is far from uncontroversial,55 it might be regarded as implicitly confirmed by the language used in Article 29(1) of the
Member States shall ensure that a company can be held liable for damage caused to a natural or legal person, provided that:
- (a)the company intentionally or negligently failed to comply with the obligations laid down in Articles 10 and 11, when the right, prohibition or obligation listed in the Annex to this Directive is aimed at protecting the natural or legal person; and
- (b)as a result of the failure referred to in point (a), damage to the natural or legal person’s legal interests that are protected under national law was caused.
Based on the wording of this provision, a “damage” to a “natural or legal person’s legal interests” should be regarded as the “result” of the non-compliance by a company with its due diligence obligations. On this basis, one might well argue that, in the structure of this new source of civil liability, the conduct of a company (including of course its omissions) should be regarded as the “event giving rise to damage.” If this is the case, the victim of environmental damage will have the right under Article 7 of the Rome ii Regulation to opt for the law of the country where the company (often the parent company) acted, or failed to act, as the law governing its non-contractual liability. That being so, the same law will govern the infringement of the due diligence obligations as well as all other aspects of the resulting non-contractual liability. Since such interpretation might be contested, it would have been better if it had been confirmed expressly in the directive, in a specific provision or at least in a recital.
In Switzerland, a revision of Chapter 9 of the spila might also be desirable. At first view, Article 138 spila is similar to Article 7 of the Rome ii Regulation, in that it provides the victim of certain environmental damages (“nuisances”) with the right to opt between different laws. After closer examination, however, this provision only applies to nuisances originating from an immovable and, accordingly, does not refer to the place of the “event giving rise to the damage,” but to the place of location of such immovable. Unless applied by analogy, this provision is of no use in the case of environmental damages generated by economic activities carried out, directly or indirectly, by a Swiss company in a foreign country.58
Environmental damages not covered by Article 138, as well as other damages caused by human rights violations, fall under the general conflict rule of Article 133 spila, which refers, in the first place, to the law of the place of the damage. The law of the place of the wrongful act is only applicable as a fallback rule, when the place of the damage was unforeseeable for the wrongdoer, but cannot be directly chosen by the victim. Under this provision, it is unlikely that Swiss law would become applicable to the determination of civil liability for harm caused in a foreign country by a Swiss company through acts or omission accomplished in Switzerland in violation of its due diligence duties. The inclusion in the spila of a specific provision to that effect would certainly be desirable.
5
In the typical scenario envisaged in this article, where proceedings are initiated in an EU Member State or in Switzerland against a company having its seat in that country, recognition problems will not arise whenever the judgment can be enforced against assets belonging to the corporate defendant located in the country of the rendering court. Also, recognition and enforcement will be easily granted in conformity with the Brussels Ia Regulation or the Lugano Convention in other EU Member States and “Lugano States.”
By contrast, recognition and enforcement might prove more difficult when they are sought in a “third” country, i.e., in a country that is not part of the European judicial area. In certain countries, recognition and enforcement are only possible when imposed by a treaty or on a strict reciprocity basis.59 At present, only very few countries have ratified the 2019 Hague Judgments Convention.60 Moreover, even under the Hague Convention and under the national law of recognition-friendly countries, recognition of foreign judgments is subject to specific requirements, and in particular to the condition that the rendering court had jurisdiction (so-called “indirect” jurisdiction).
In the scenarios addressed in this paper, “indirect” jurisdiction is normally satisfied when the judgment was rendered by the court of the country where the defendant has its domicile (which often includes not only the statutory but also the “real” seat, i.e., the central administration and/or the principal place of business).61 Thus, a judgment rendered in an EU Member State or in Switzerland against a company domiciled in the country of the court will be recognized in several third countries. This might be important not only for enforcement purposes, when the company’s assets in the country of its domicile are insufficient, but also for the purpose of extending the res judicata effects of the judgment to cover existing or future parallel proceedings in the third country concerned.
This situation could materialise, first, if a jurisdictional basis is created under EU law for civil liability claims filed against third country-companies who are only subject to the due diligence obligations under the EU directives because of their turnover in the Member States (the scenario envisaged in Art. 2(2) of the EU directive).62 In such situations, as mentioned above, the jurisdiction of a court in an EU Member State could not be predicated on the defendant’s domicile, nor on the place of the tort (which will probably occur in a third country), but, at most, on the place of the company’s business activities (“doing business-jurisdiction”) or on the necessity of avoiding a denial of justice (“forum necessitatis”). However, even assuming that such jurisdictional grounds are admissible in an EU Member State (or that they will be provided for in future legislation, as suggested above), they are rarely accepted as a possible basis for recognition in third countries and are not included as such in the 2019 Hague Judgments Convention.
The second scenario where a judgment might be rendered against a company not domiciled in the country of the court is when the court’s “derived” jurisdiction is based on connection; as mentioned above, this is typically the case when the claim is filed jointly against an EU or Swiss company and a foreign subsidiary or another business entity in the value chain.63 Even if such a ground of “derived” jurisdiction exists in the country of the court (which is presently the case in a majority of EU Member States but not in Switzerland) or will be included in future legislation, it might be ignored in the third country where recognition and/or enforcement are sought (typically, the country where the subsidiary or other business entity is established and where damage was caused). Such basis for recognition is also lacking in the 2019 Hague Judgments Convention.
Obviously, neither the EU directive nor future national legislation in Europe or in Switzerland can enhance the chances of recognition and enforcement of civil liability judgments in third countries. Only a specific international convention might bring progress in that regard. However, the 2023-updated draft UN treaty does not include rules on recognition and enforcement of decisions.
6
Private international law plays a key role for the private enforcement of a businesses’ due diligence duties, as established by national and supranational legislation and case law.
While jurisdictional rules are crucial to grant the victims access to justice and to effective remedies, the determination of the applicable rules is, of course, extremely important to determine the outcome of litigation on the merits.
The EU directive does not pay sufficient attention to such aspects: while it usefully recognizes the overriding mandatory nature of the new due diligence obligations that it creates, it fails to include more detailed regulation, in particular concerning jurisdiction over third country companies, subsidiaries and other business entities, and the law governing civil liability for human rights violations. Swiss law should also be improved on such issues.
While recognition and enforcement of the decisions are also essential ingredients of the right to effective remedies, it is difficult for the EU and Switzerland to foster them unilaterally as far as third countries are concerned. Only an international treaty could help achieving such result.
In 2000, the United Nations (“UN”) released the “UN Global Compact”, a framework of principles on human rights, labour, and the environment, as well as corruption (since 2004) and sustainability (since 2015). After the publication by John Ruggie of his Report of the Special Representative of the Secretary General on the Issue of Human Rights and Transnational Corporations and other Business Enterprises, the UN Guiding Principles on Business and Human Rights (“ungps”, also known as “Ruggie’s Principles”), were endorsed by the UN Human Rights Council (unhrc) by its resolution 17/4 on June 16, 2011. In 2013, the UN Working Group on Business and Human Rights (unwg), created by the unhrc, called upon States to develop a National Action Plan on Business and Human Rights (a/hrc/23/32) and in 2015, the General Assembly adopted the UN Agenda for Sustainable Development “Transforming the World.” In 2011, the Organization for Economic Co-operation and Development (oecd) adopted its “Guidelines for Multinational Enterprises”, providing for the creation of National Contact Points (ncps), which are national agencies in charge of the promotion and implementation of the Guidelines. Among the initiatives by non-governmental organizations, note in particular the “iso Standard 26000 on Social Responsibility.”
On June 26, 2014, by its resolution 26/9, the UN Human Rights Council decided to establish an open-ended intergovernmental working group on transnational corporations and other business enterprises with respect to human rights (oeigwg), with the task of drafting a binding treaty. The first session of the oeigwg was held in October 2015. The 3rd revised draft was set up at the 7th session of the oeigwg in 2021, and an updated version of this draft was released at the 9th session of the oeigwg in July 2023 (the UN Draft Treaty). This text is available at
Among several important decisions, the seminal English case Vedanta Resouces plc and another v. Lungowe and others [2019] uksc 20 shall be mentioned concerning the scope of the duty of care of a parent company for harm caused by a subsidiary to third persons. See the comments by Horatia Muir Watt, “La saga juridictionnelle Vedanta (suite): le devoir de vigilance de la société-mère à l’égard des tiers,” Revue critique de droit international privé 2019, no. 2 (April 2019): 504–10. On a similar line, see also Okpabi and others v. Royal Dutch Shell plc and others, [2021] uksc 3. In the Netherlands, see the landmark decision of the Court of Appeal in The Hague of January 29, 2021, Oguru, Efanga and Milieudefensie v. Royal Dutch Shell plc and Shell Petroleum Development Company of Nigeria Ltd; see Xandra Kramer and Ekaterina Pannebakker, “Shell litigation in the Dutch courts – milestones for private international law and the fight against climate change,” May 26, 2021, available at
The European Union (EU) has been developing its strategy on corporate social responsibility for several years. In 2011, the Commission released a communication on A renewed EU strategy 2011–14 for Corporate Social Responsibility, which was then followed in 2019 by a document titled “Corporate Social Responsibility, Responsible Conduct, and Business & Human Rights.” These action plans were implemented by several acts, such as the Non-Financial Reporting Directive (Directive 2014/95/EU), the Timber Regulation (Regulation (EU) No. 995/2010), and the Conflict Minerals Regulation (Regulation (EU) 2017/821).
Directive (EU) 2024/1760 of the European Parliament and of the Council of 13 June 2024 on corporate sustainability due diligence and amending Directive (EU) 2019/1937 and Regulation (EU) 2023/2859, oj l, 2024/1760, 5.7.2024. The directive is based on the European Commission’s Proposal for a Directive of the European Parliament and the Council on Corporate Sustainability Due Diligence and amending Directive (EU) 2019/1937, com(2022) 71 final, 2022/0051(cod).
In Switzerland, the constitutional initiative Entreprises responsables – Pour protéger l’être humain et l’environnement, which Swiss citizens voted on November 29, 2020, failed, notwithstanding acceptance by 50,7% of the voters, because it was rejected by a majority of the cantons. The counter-project proposed by the Federal Council was implemented by adding several new articles to the Code of Obligations, providing for general reporting duties (Article 964a-964c co) and certain more far-reaching obligations in some specific sectors, such as raw materials, minerals, and metals from conflict-affected areas, or for some specific purposes, such as the fight against child labour (Article 964d-964l co). For a comparison of Swiss and European law, see Giulia Neri-Castracane, Damiano Canapa, and Teymour Brander, “The Swiss and European Legislations on Business and Human Rights: Gaps, extra-territorial application and a reform needed towards harmonization,” European Business Organization Law Review (forthcoming).
In EU law, see the Timber Regulation (Regulation (EU) No. 995/2010) and Conflict Minerals Regulation (Regulation (EU) 2017/821), supra note 4. Examples at a national level include the United Kingdom (UK) Modern Slavery Act 2015, the Dutch Child Labour Due Diligence Act 2019, and the Swiss provisions, supra note 6.
With its Loi n° 2017–399 du 27 mars 2017 relative au devoir de vigilance des sociétés mères et des entreprises donneuses d’ordre, France was the first country to adopt binding and comprehensive legislation. On the implementation of this act, see Fabienne Jault-Seseke, “The French Duty of Care after a Few Years of Application,” in Yearbook of Private International Law 2021/2022, eds. Andrea Bonomi, Ilaria Pretelli, and Gian Paolo Romano (ottoschmidt, 2022), 245–60. The German Act on Corporate Due Diligence Obligations in Supply Chains (Lieferkettensorgfaltspflichtengestez – LkSG) of July 16, 2021 (the 2021 German Act), is another more recent example of a comprehensive approach.
The distinction between public and private enforcement has long been used in the area of competition law, where certain jurisdictions (in particular the United States) have recognised, for quite some time, that private incentives for compensation through the judicial system (in particular through the award of so-called “triple damages”) can play a crucial role complementary to public enforcement. This concept is now accepted, although in a more nuanced way, in several other jurisdictions and in different areas of the law. See the EU Commission’s “Green Paper – Damages actions for breach of the ec antitrust rules {sec(2005) 1732},” com (2005) 672 final, December 19, 2005, available at
Under Article 2(2) of the EU directive, supra note 5, “[t]his Directive shall also apply to companies which are formed in accordance with the legislation of a third country, and fulfil one of the following conditions: (a) the company generated a net turnover of more than eur 150 million in the Union in the financial year preceding the last financial year; (b) the company did not reach the threshold as referred to in point (a) but is the ultimate parent company of a group that on a consolidated basis reached that threshold in the financial year preceding the last financial year; (c) the company entered into or is the ultimate parent company of a group that entered into franchising or licensing agreements in the Union in return for royalties with independent third-party companies, where those agreements ensure a common identity, a common business concept and the application of uniform business methods, and where those royalties amounted to more than eur 22 500 000 in the Union in the financial year preceding the last financial year; and provided that the company generated, or is the ultimate parent company of a group that generated a net turnover of more than eur 80 000 000 in the Union in the financial year preceding the last financial year.”
As in the Vedanta case, supra note 3. See also the case Município de Mariana v. bhp Group, [2020] ewhc 2930 (tcc), in particular §§ 134–142; this opt-in group action, brought on behalf of now more than 700,000 Brazilian individuals and organizations, is one of the largest legal claims ever filed in a British court.
As an example, see the landmark case Milieudefensie et al. v. Royal Dutch Shell plc, May 26, 2021, c/09/571932/ha za 19–379 (English translation available at
As an example, see McGaughey and Davies [2022] ewhc 1233 (a derivative claim to enforce duties of the directors of the UK university pension fund, uss Ltd).
Article L225-102-5 of the French Commercial Code provides for a specific liability claim for violation of the due diligence duties, which is governed by the general provisions on civil liability in torts (Articles 1240 and 1241 of the French Civil Code). The 2021 German Act, supra note 8, also refers to civil proceedings, but only to provide for a special capacity to sue (legal standing) of trade unions and other non-governmental organizations (Article 11).
Pursuant to this provision, “Member States shall ensure that a company can be held liable for damages caused to a natural or legal person, provided that: (a) the company intentionally or negligently failed to comply with the obligations laid down in Articles 10 and 11, when the right, prohibition or obligation listed in the Annex to this Directive is aimed at protecting the natural or legal person; and; (b) as a result of the failure referred to in point (a), damage to the natural or legal person’s legal interests that are protected under national law was caused.”
See the UN Draft Treaty, supra note 2. See also ibid. at Article 8.
See Neri-Castracane, Canapa, and Brander, “The Swiss and European Legislations,” supra note 6, at Section 3.2.1.4.
On private international law questions, see the comprehensive Private International Law Aspects of Corporate Social Responsibility, eds. Catherine Kessedjian and Humberto Cantú Rivera (Springer International Publishing, 2020) (which includes one general report and 20 national reports, most of which were prepared for the Fukuoka Conference of the International Academy of Comparative Law in summer 2018). Among numerous other publications see also, in France: Catherine Kessedjian, “Les actions civiles en matière de violation des droits de l’homme: aspects de droit international privé,” Travaux du Comité français de droit international privé 2005, no. 16 (May 2005): 151–94; Olivera Boskovic, “Update on pil Aspects of Environmental Damage and Human Rights Violations in Supply Chains,” December 21, 2021, available at
Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast), oj l 351, 20.12.2012, 1–32 (“br”).
Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, oj l 339, 21.12.2007, 3–41.
The term “mandatory” was used in this sense by the Court of Justice of the European Union (“cjeu”) in the well-known Owusu case (Andrew Owusu v. N.B. Jackson et al., C-281/02, ecr 2005 i-01383). Of course, this does not mean that the parties cannot derogate from most rules of the br by entering into a choice-of-court agreement (br, supra note 19, at Article 25).
Owusu case, supra note 21.
This includes several well-known cases of environmental harm caused abroad, such as In Re Union Carbide Corp. Gas Plant Disaster at Bhopal, 809 F. 2d 195 (2d Cir. 1987) and Aguinda v. Texaco Inc., 303 F.3D 470 (2d Cir., 2002). By contrast, a stay on forum non conveniens grounds was rejected by the English Court of Appeal in the case Município de Mariana v. bhp Group, [2020] ewhc 2930 (tcc), §§ 315–372.
See the UN Draft Treaty, supra note 2. Pursuant to Article 9.3 of the UN Draft Treaty, “State Parties shall take such measures as may be necessary, and consistent with its [sic] domestic legal and administrative systems, to ensure that decisions by relevant State agencies relating to the exercise of jurisdiction in the cases referred to in Article 9.1 shall respect the rights of victims in accordance with Article 4, including with respect to: (a) The discontinuation of legal proceedings on the grounds that there is another, more convenient or more appropriate forum with jurisdiction over the matter […].”
By filing a claim for declaratory relief, the (alleged) wrongdoer can anticipate a compensatory claim, and thus benefit from the lis pendens rules. Under EU law, it is accepted that a declaratory claim may have the same object and cause of action as a claim for compensation: see the decision of the cjeu in the case The owners of the cargo lately laden on board the ship The Tatry v. the owners of the ship The Maciej Rataj, 6.12.1994, C-406/92, ecr 1994 i-05439. In Switzerland, see the decision of the Swiss Federal Court in atf [Decisions of the Federal Tribunal]144 iii 175.
Jalla v. Shell, [2020] ewhc 459 (tcc) (the claims filed in England had been preceded by proceedings initiated in Nigeria, the country where oil leaks from a maritime oilfield had caused an environmental disaster). See the comments by Horatia Muir Watt, “Le contentieux international pour atteinte à l’environnement: la responsabilité de Royal Dutch Shell au Nigéria (nouvel épisode),” Revue critique de droit international privé 2020, no. 3 (March 2020): 577–87, at 585.
Município de Mariana v. bhp Group, [2022] ewca Civ 951 (tcc), §§ 217–314 (where several connected proceedings were already pending in Australia and Brazil).
Swiss Federal Act on Private International Law of 18 December 1987 (“spila”), as 1988 1776, Article 9.
Under the br, supra note 19, at Article 6, “[i]f the defendant is not domiciled in a Member State, the jurisdiction of the courts of each Member State shall, subject to Articles 18(1), 21(2), 24 and 25, be determined by the law of that Member State.”
See Arnaud Nuyts, “Study on Residual Jurisdiction (Review of the Member States’ Rules concerning the ‘Residual Jurisdiction’ of their Courts in Civil and Commercial Matters pursuant to the Brussels i and ii Regulations)”, September 3, 2007, at 33, para. 41, available at
Ibid. Under the “ubiquity theory,” as developed by the cjeu since its earliest decisions on Article 5(3) of the Brussels Convention (now Article 7(2) br), a tort claim can be filed either with the court at the place of the event giving rise to damage or with the court at the place where the damage occurred.
The theory that a court’s general jurisdiction could rest on its extensive business activities in the forum was clearly rejected by US Supreme Court in its decisions in the Goodyear and Daimler cases (Goodyear Dunlop Tires Operations, s.a. v. Brown, 564 U.S. 915 (2011) and Daimler ag v. Bauman, 571 U.S. 117 (2014)).
In Switzerland, see the spila, supra note 28, at Article 3. In some EU Member States, such an exceptional ground for jurisdiction is expressly provided for by the law (this is the case in Belgium, The Netherlands, Poland and Portugal), while in others, courts have occasionally accepted it in order to grant effective access to justice (for an overview of the French cases, see the French national report in Private International Law Aspects, supra note 18, at 379). The inclusion of a forum necessitatis rule in the Brussels Ia Regulation had been envisaged by the European Commission in its proposal for a “recast” regulation of December 14, 2010 (Proposal for a Regulation of the European Parliament and of the Council on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Recast), 2010/0383 (cod), com(2010) 748 final, Article 7). On the desirability of such rule in the specific area of human rights litigation, see Boskovic, “Update on pil,” supra note 18, at 3.
“Report with recommendations to the Commission on corporate due diligence and corporate accountability,” European Parliament, Committee for Legal Affairs, February 11, 2021, available at
See UN Draft Treaty, supra note 2. Pursuant to Article 9.5 of the 2023 version of the UN Draft Treaty, “[c]ourts shall have jurisdiction over claims against legal or natural persons not domiciled in the territory of the forum State if no other effective forum guaranteeing a fair judicial process is available and there is a connection to the State Party concerned as follows: a. the presence of the claimant on the territory of the forum; b. the presence of assets of the defendant; or c. a substantial activity of the defendant.” This provision has been deleted from the 2024 version the UN Draft Treaty.
As an example, see the Na’it-Liman case (concerning a claim filed in Switzerland by the victim of torture in Tunisia), including the decisions by the Swiss Federal Court of 22.5.2007, 4C.379/2006, and by the European Court for Human Rights of 15.3.2018, Application No. 51357/07. See Bernard Dutoit and Andrea Bonomi, Droit international privé suisse (Helbing Lichtenhahn, 2022), Article 3, No. 9–10.
The European Group of Private International Law (“gedip”), in its Recommendation concerning the Proposal for a Directive of 23 February 2022 on Corporate Sustainability Due Diligence, had recommended the insertion in the directive of “a provision ensuring the possibility of bringing an action before a court of a Member State against a company having achieved a turnover in the Union within the meaning of Article 2(2) of the proposed directive.” See “Recommendation of the European Group of Private International Law (gedip) concerning the Proposal for a directive of 23 February 2022 on Corporate Sustainability Due Diligence, following up on its Recommendation to the Commission of 8 October 2021,” available at
Such as the U.S. securities legislation (Morrison v. National Australia Bank, 561 U.S. 247 (2010)), the Alien Tort Claims Act (Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108 (2013)); Nestlé USA, Inc. v. Doe, 593 U. S. ___ (2021)), and the rico Act (rjr Nabisco, Inc. v. European Community, 579 U.S. ___ (2016)).
Extraterritorial enforcement of U.S. law is provided for in a great variety of areas (sanctions and embargos; fight against terrorism; foreign corrupt practices; money laundering; collection of personal data, etc.).
Pursuant to Article 8(1) br (supra note 19), “[a] person domiciled in a Member State may also be sued: (1) where he is one of a number of defendants, in the courts for the place where any one of them is domiciled, provided the claims are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings […].” Article 6(1) cl has a similar content.
See Nuyts, “Study on Residual Jurisdiction,” supra note 30, at 50, para. 66. In the Netherlands, derived jurisdiction can be based on Article 7(1) of the Dutch Code of Civil Procedure, as decided by Court of Appeal at The Hague in its decision of December 18, 2015, in the case Dooh and Milieudefensie v. Royal Dutch Shell plc and Shell Petroleum Development Company of Nigeria Ltd (see an English translation at “ecli:nl:ghdha:2015:3586,” de Rechtspraak, accessed October 31, 2023,
Pursuant to the spila, supra note 28, at Article 8a, “[w]hen the action is brought against several co-defendants who can be sued in Switzerland pursuant to the present Act, the Swiss court having jurisdiction over one defendant shall have jurisdiction over all of them,” (emphasis added). As is clear from its language, this provision is only applicable when the co-defendants are subject to Swiss jurisdiction based on other provisions of the spila. Dutoit and Bonomi, Droit international privé suisse, supra note 36, at Article 8a, Nos. 1–4. The same is also true, mutatis mutandis, for Article 8b spila, a provision that is applicable to cross claims (third party-claims).
This question had already been addressed by the Commission in its proposal for a “recast” regulation of 14.12.2010 (com(2010) 748 final (see the proposed Articles 4(2) and 6)) but was eventually left unanswered in the Brussels Ia Regulation, supra note 19.
The gedip in its 2022 document, supra note 37, had recommended the insertion in the directive of “a provision ensuring the possibility of summoning a co-defendant not domiciled in a Member State of the Union in the same way as a co-defendant domiciled in a Member State.”
See ungps, supra note 1.
For France, see Olivera Boskovic, “Brèves remarques sur le devoir de diligence et le droit international privé,” Recueil Dalloz 2016, no. 7 (February 2016): 385; or, more nuanced, Jault-Seseke “The French Duty of Care,” supra note 8, at 257 et seq. For Switzerland, see Geisser, Außervertragliche Haftung, supra note 18, at 367, 372; Bueno and Bonomi, “Switzerland,” supra note 18, at 589; Dutoit and Bonomi, Droit international privé suisse, supra note 36, at Article 18, No. 10 and Article 154, No. 16.
Regulation (EU) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome i), oj l 177, July 4, 2008, 6–16 (“Rome i”). The definition of overriding mandatory provisions included in Article 9(1) of this regulation is also valid in other areas of European private international law.
Pursuant to the spila, supra note 28, at Article 18, “[t]his Act is subject to those mandatory provisions of Swiss law which, by reason of their special aim, are applicable regardless of the law referred to by this Act” (emphasis added). The “special aim” referred to in the provision is no other than a crucial public interest, as clarified by the Swiss Federal Court ruled (see atf 138 iii 750).
A similar provision had already been proposed by the European Parliament in its resolution of 10 March 2021 with recommendations to the Commission on corporate due diligence and corporate accountability (P9_ta(2021)0073, Article 20), available at
See supra note 6, in particular, the text of the new Article 101a(2)(d), which the initiative purported to insert into the Swiss Constitution.
The draft of the counter-project initially voted by the National Council included an Article 139a of the spila providing for the application of Swiss law to claims against Swiss companies, but this provision was not retained in the text that was eventually submitted to the voters.
Regulation (ec) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome ii), oj l 199/40, July 31, 2007, 40–49 (“Rome ii”).
Under Art. 4(1) of the Rome ii Regulation (supra note 52), “[u]nless otherwise provided for in this Regulation, the law applicable to a non-contractual obligation arising out of a tort/delict shall be the law of the country in which the damage occurs irrespective of the country in which the event giving rise to the damage occurred and irrespective of the country or countries in which the indirect consequences of that event occur.”
Milieudefensie v. Royal Dutch Shell, supra note 12.
In favour, Boskovic, “Update on pil,” supra note 18, at 7; Jault-Seseke, “The French Duty of Care,” supra note 8, at 258. Contra: Madeleine Petersen Weiner and Marc-Philippe Weller, “The ‘Event Giving Rise to the Damage’ under Art. 7 Rome ii Regulation in CO2 Reduction Cases,” in Yearbook of Private International Law 2021/2022, eds. Andrea Bonomi, Illaria Pretelli, and Gian Paolo Romano (ottoschmidt, 2022), 261–280 (the authors criticize the Milieudefensie decision and, after a detailed discussion of the available options, come to the conclusion that the law of the place of the relevant business decisions at the real seat of a company should only be applied as an ultima ratio). It is noteworthy that, in a case of violation of antitrust law, the Swiss Federal Tribunal ruled that the Swiss court at the seat of the parent company had jurisdiction over the other companies of the group under Article 5(3) of the Lugano Convention because the strategical decision to implement a selective distribution system had been taken there (atf 145 iii 303, point 7.2.3): it remains to be seen whether this interpretation could be extended to cases of environmental damages. By contrast, in Nestlé USA, Inc. v. Doe, 593 U. S. ___ (2021), the US Supreme Court ruled that general corporate activity in the U.S., such as decision-making, is not sufficient to establish that the conduct relevant for the application of the Alien Tort Act occurred there.
See supra note 53.
Thus, the gedip, in its 2022 recommendation (see supra note 37), had proposed to insert in the EU directive “a provision allowing a claimant for damages resulting from a violation of human rights to base his claims not only on the law applicable under Article 4 of the Rome ii Regulation but also on the law of the country in which the event giving rise to the damage occurred.” See also Boskovic, “Update on pil,” supra note 18, at 6–7; Jault-Seseke, “The French Duty of Care,” supra, note 8, at 258.
Dutoit and Bonomi, Droit international privé suisse, supra note 36, at Article 138, No. 2.
As is the case for instance in China or Russia.
Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters of 2 July 2019 (hcch 2019 Judgments Convention) (“Hague Judgments Convention”). Besides the EU, only Ukraine, the United Kingdom and Uruguay have ratified this Convention thus far.
As an example, see the Brussels Ia Regulation, supra note 19, at Article 63, and the Hague Judgments Convention, supra note 60, at Article 3(2). This wide notion of domicile is also reflected in the UN Draft Treaty, supra note 2, at Article 9(2).
See supra, 3.2.
See supra, 3.3.