Strategic litigation
Several organizations are employing agrarian, civil, and criminal litigation at the domestic level in the Global South, European due diligence laws, North-South and South-South extraterritorial claims, and other creative uses of the law in home and host jurisdictions to establish new precedents, case law, and norms for how multinational corporations and States should conduct themselves in order to protect human rights.
Here are some recommendations, opportunities, and strategies for corporate capture litigation in the Global South. Please bear in mind that none of these examples would be successful without the prerequisite of organizing in order to create a collective subject capable of acting as a horizontal accountability mechanism vis-a-vis the intellectual authors and beneficiaries of corporate capture.
- Class action lawsuits:According toDLA Piper,39 countries worldwide permit a form of class action lawsuit, a civil action undertaken by a group or a representative of that group, typically for tort law claim. Class actions are important tools for communities affected by environmental damage, consumers affected by negligence, etc. Companies often fear class actions because the economic liabilities created by the size of the classes can lead quickly to multi-billion-dollar claims, if not higher. In addition to increasing the amount of countries that permit these actions, as well as expanding and strengthening the countries that already have them (albeit in a limited fashion compared to the leading standard in the U.S.), one recommendation is to improve the theory of damage and compensation for damages that can be won through these claims. According to attorney and former regulator Adriana Labardini,in Mexico, for example, class action damages do not transfer to the affected class but rather to the State, which has full discretion for how to use these funds. In this regard, direct transfers — as with class actions in the U.S. — are necessary.Robust class action legislation plus direct transfers would be important tools against the effects of corporate capture.
- Domestic litigation in the Global South:Advocates, lawyers, and representatives of rightsholders in the Global South use laws already on the books in their countries to hold corporations accountable.Center for Legal and Social Studies(CELS) in Argentina.Conectasin Brazil. Socio-Economic Rights Institute of South Africa(SERI).Cajarin Colombia.Pesticide Action Networkin Asia Pacific (PANAP). These organizations and many more are experts in their own legal systems. If anything, the opportunity to support their legal strategies and innovations would be a natural starting point in order to create anti-capture bulwarks across the world.
ProDESC in Mexico uses national legislation and litigation to win cases on its own terms — without necessarily suing in the Global North or relying on partners there to do so. If a case cannot be won domestically, then ProDESC can sue directly in a corporation’s home country or enter into a genuine transnational partnership with an organization there with whom it can co-litigate.
- Defense of land, territory, and natural resources:Similarly, the use of agrarian law can be important for safeguarding the communal property of indigenous peoples, farmers, and rural landowners. Regulatory frameworks in the Global South, for example in Brazil, Mexico, and South Africa, offer promise insofar as they allow the use of free, prior, and informed consent (FPIC),agrarian law, and other human protections in a combined fashion to create legal bulwarks against corporate-sponsored human rights violations, which are often the negative effects of corporate capture. Using the example of ProDESC, currently it is litigating a land dispossession case in the Yucatan Peninsula using agrarian law as “prevention” against encroachment and expropriation, “defense” in cases of litigation, and “protection” against harms — not as “conservation” or “preservation” of territory.
- South-South extraterritoriality:TheCentre for Applied Legal Studies(CALS) and several other organizations are involved in litigation in South Africa to hold a domestic mining company liable for the actions of its operations in Zambia — the case is known as theChildren of Kabwe.They did not seek to enforce Zambian law but rather the application of the South African constitution against a South African corporation, in this case the direct application of the bill of rights to private parties. This is one of many examples of extraterritorial protections and litigation possibilities that can happen using the constitutions and judicial systems already on the books in Global South countries.
- Civil law — even when States won’t pursue criminal cases:Areportby Open Secrets (South Africa) states that: “As with most jurisdictions, in South Africa criminal prosecutions rely on the state to have the will and the capacity to proceed. When the state lacks either, or both, it is often perceived that the courts are closed. However, civil litigation can still be brought by any individual or group that can show harm. While there remains problems regarding access to the judicial system, there is still an opportunity to pursue accountability for corporations and individuals that commit economic crimes, or are complicit in other violations, even where the state won’t act. Civil proceedings have the great benefit of getting liable parties to pay back money illicitly gained.”