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Translating torts : A justice framework for transnational corporate harm

Translating torts : A justice framework for transnational corporate harm
Benedict Semple Wray


Department of Law, European University Institute, I-50014 San Domenico di Fiesole (FI), ITALY.


The struggle of defining transnational business actors and articulating their interaction with regulatory structures is a familiar one in many fields of study. Although the company is a creature of law, its legal personality is rarely congruent with the economic reality, and the extent to which it is bound by legal rules varies enormously. This thesis re-examines that struggle from a legal perspective. It surveys legal regulation of business actors at the domestic, international and transnational levels, and highlights the challenges globalization presents to the existing models, traditional and emerging alike. The picture which emerges is unsettling: by its very nature, transnational business destabilizes the equilibrium of the traditional legal structures. Legal rules developed based on the axiom of each legal person as a distinct legal unit, bound to the legal system in which it resides, struggle to meet their compensatory and regulatory aims when confronted with the diversification of modern business structures and the loss of single State control. Likewise, continuing development of international and transnational regulation risks perpetuating such problems by artificially restricting which areas of law apply in particular transnational spaces.

Based on those observations, it is argued that a restatement of the law as it applies to transnational business is required. First, without denying the utility of specific legal definitions of the company or corporation in specific circumstances, it is proposed that transnational business be reconceptualized as a field, or vector, for normative conflict rather than as a monolithic entity. This recognizes the need and utility of specialized systems of regulation in particular spaces, while allowing for interaction with other rules which have a bearing on a given situation in concreto. Second, through an analysis of the interaction of law and global justice, it provides for a cosmopolitan re-centring of legal obligations between business actors and victims of corporate harm beyond a single nation-state. Third, this allows for the tentative sketching of a redefined, transnational conflict-of-norms framework to co-ordinate the competing justice aims in question while maintaining legal equilibrium on the transnational plane.