False Extraterritoriality? Municipal and multinational jurisdiction over transnational corporations

Abstract

This article analyses the tricky question of territoriality in respect of transnational corporations, arguing that there is a need to move away from the confines of traditional legal categories in cases where corporate actors are concerned. Nowhere are the problems arising from the separation between domestic and international regulation, and between private and public, thrown into such stark relief as in the case of conflict zones. With that in mind, we examine jurisdiction in public and private international law and criminal law against the backdrop of two well-known case studies: the involvement of corporations in the Democratic Republic of Congo and the actions of Royal Dutch Shell in Nigeria. We ask whether domestic regulation or universal jurisdiction offer satisfactory solutions in cases such as these, and put forth an alternative solution based on functional economic, not territorial, criteria that better mirror the joint interest and involvement of states, companies and other actors in the operations of transnational corporations (‘TNCs’) across the globe. Thus, we argue, why not regulate based upon principle of ‘benefit-and-burden’ which would allow any interested state to assert jurisdiction in appropriate circumstances and avoid the impasse between oft en non-existent host-state regulation and home-state apathy. This is something we can already observe beginning in the criminal field, and given the intermingling of different legal norms where TNCs are concerned, is something that not only could, but should be clarified and extended.