3 - Barriers to Judicial Remedies in Host Countries

Summary

Before discussing the barriers to bringing claims against TNCs in countries where they are incorporated or domiciled (“home countries”), or where they engage in significant business, it is first important to understand why victims cannot, and thus do not, bring claims against TNC affiliates in their own countries where the harm occurs – the host country. In an ideal world, all countries would have regulatory systems sufficient to prevent harm to individuals and communities, and judicial or judicial-like mechanisms to provide for a remedy in the event that businesses engage in tortious actions, whether directly or vicariously. Many wonder why the victims simply do not bring a claim in their own country and question whether bringing a case outside their country is appropriate. Even the US Supreme Court has suggested that victims of human rights abuses should simply bring the case in their home country.¹ However, it is not so simple. Indeed, if the victims could bring a claim in their own country and obtain a remedy, it would be much easier for them given the difficulty in bringing a case abroad against a parent company, and they would typically prefer to do so.² Yet, the sad reality is that this is often not possible in many host countries where TNCs operate. First, many of these host countries do not have sufficient regulations to prevent harm; in fact, as a result of globalization, many have done away with regulations in order to attract transnational business.