Tort Liability in Multinational Corporate Groups: A Comparative Analysis with Particular Focus on Turkey

✍ Scribed by Pınar Kara

• Publisher: Springer
• Year: 2023
• Tongue: English
• Leaves: 301
• Series: Ius Gentium: Comparative Perspectives on Law and Justice
• Edition: 1
• Category: Library

✦ Synopsis

Multinational corporate groups are important actors in today’s global economy, with the power to impact the masses through their activities. National legal systems, which usually have no extraterritorial authority, remain insufficient to regulate the activities of multinational corporate groups, which operate worldwide, not only in the countries where the parent companies reside (home country), but also in countries where the subsidiaries operate (host countries). The mentioned lack of an effective legislation leads to an unjust imbalance – to the benefit of multinational corporate groups and to the detriment, especially, of involuntary creditors, such as tort victims of corporate activities, which predominantly concern human rights abuses and environmental violations. Against this backdrop, the book firstly assesses the position of multinational corporate groups in international law and then discusses potential reforms to corporate law that would allow for a multi-stakeholder approach. It analyses certain aspects of Turkish tort law that could potentially accommodate liability claims against the parent companies of multinational corporate groups for damage incurred due to their transnational subsidiaries’ activities (referred to as ‘foreign direct liability’ in legal doctrine). To this end, the potential legal grounds of fault liability and strict liability are assessed under Turkish law, with a particular focus on the duty of care, in comparison with the corresponding case law in the UK and the Netherlands. Mandatory human rights due diligence is also analysed with a view to proposing a new regulation in Turkish law. Lastly, the aspects of foreign direct liability claims related to private international law are assessed in order to answer the questions of jurisdiction and applicable law within the scope of a comparative legal study.

✦ Table of Contents

Preface
Acknowledgments
Contents
Abbreviations
Chapter 1: Introduction
References
Online Sources
Legislation, Reports, Resolutions and Opinions
Literature
Chapter 2: Introduction to FDL and the Nature of FDL Claims
2.1 Concerns Regarding MNCs: `Is There a Problem?´´ 2.2 Nature of FDL Claims 2.3 Aim and Focus of the Study: Presentation and Delimitation of the Scope References Online Sources Legislation, Reports, Resolutions and Opinions Literature Chapter 3: Multinational Corporate Groups, Their Position in International Law and Regulating Multinational Corporate Groups 3.1 Multinational Corporate Groups 3.1.1 Companies in General: Theories and Main Features 3.1.1.1 DefiningCompany´
3.1.1.2 Separate Legal Personality
3.1.1.3 Limited Liability
3.1.2 Corporate Groups: A Brief Analysis with a Particular Focus on Turkish Law
3.1.2.1 Concept of Corporate Group and Regulatory Goals
3.1.2.2 Parent Company and Subsidiary
3.1.2.3 Undertaking´ as the Parent 3.1.2.4 Control and Dominance in Corporate Groups 3.1.2.4.1 Ownership of the Majority of Voting Rights 3.1.2.4.2 Power to Appoint Management 3.1.2.4.3 Voting Agreements 3.1.2.4.4 Dominance Agreements 3.1.2.4.5 Dominance in Any Other Manner 3.1.2.4.6 Presumption of Control 3.1.2.5 Composition of Corporate Groups Under TCC 3.1.2.5.1 The Number of Companies Required to Form a Corporate Group 3.1.2.5.2 The Issue ofHolding Companies´
3.1.2.6 A Specific Basis for Compensation Claims Under Turkish Law: Article 202/1 of TCC
3.1.3 Multinational Corporate Groups: A View Through International Legal Instruments and Legal Doctrine
3.2 Positioning Multinationals in the International Legal Arena and the Problem of Effective Regulation
3.2.1 Theories on the Position of Multinationals in International Law
3.2.2 International Legal Instruments Related to Responsible Business Behaviour and Corporate Social Responsibility
3.2.2.1 UN Instruments
3.2.2.2 OECD Instruments
3.2.3 The Way Forward: Alternative Methods Complementary to FDL
3.2.3.1 Suggestions of Reform in Company Law
3.2.3.2 A UN Treaty on Business and Human Rights
3.2.3.3 Private Arbitration in Business and Human Rights
References
Online Sources
Legislation, Reports, Resolutions and Opinions
Literature
Chapter 4: Comparative Analysis of Substantive Legal Grounds for FDL
4.1 Analysis of FDL Under Tort Liability
4.1.1 Analysis of FDL in Tort Liability Under Turkish Law
4.1.1.1 Fault
4.1.1.2 Unlawfulness
4.1.1.2.1 General
4.1.1.2.2 Objective Unlawfulness: Subjective Unlawfulness
4.1.1.2.3 Theories of Unlawfulness in Behaviour and Unlawfulness in Result
4.1.1.2.4 Liability Within the Scope of the Principle of Danger
4.1.1.2.5 Theory of the Duty of Care
4.1.1.2.6 Interim Conclusion on Unlawfulness
4.1.1.3 Causation
4.1.1.4 Damage
4.1.2 Analysis of FDL in English Law
4.1.2.1 The Concept of the Duty of Care in English Law
4.1.2.2 The Parent Company´s Duty of Care in English Law
4.1.2.2.1 Connelly v RTZ
4.1.2.2.2 Lubbe v Cape
4.1.2.2.3 Chandler v Cape Plc
4.1.2.2.4 Thompson v Renwick
4.1.2.2.5 AAA v Unilever
4.1.2.2.6 Lungowe v Vedanta
4.1.2.2.7 English Shell Nigeria
4.1.3 Parent Company´s Duty of Care in Light of Dutch Court Judgments
4.1.4 Suggestions on Regulating the Parent Company´s Duty of Care Under Turkish Law
4.1.4.1 Shareholding
4.1.4.2 Control Over a Subsidiary´s Operations
4.1.4.3 Operating in the Same Business Line
4.1.4.4 Appointment and Supervision of a Subsidiary´s Directors
4.1.4.5 Binding Group Policies
4.1.4.6 Dangerous Technology or Process
4.1.4.7 Evaluation of the Criteria for a Parent Company´s Breach of the Duty of Care
4.2 Parent Company´s Strict Liability
4.2.1 Mild Causal Liability of the Employer
4.2.2 Strict Liability for Dangerous Activities
4.2.3 Strict Liability for Polluting the Environment
4.3 Mandatory Human Rights Due Diligence
4.3.1 International Legal Instruments for HRDD
4.3.1.1 UN Instruments for HRDD
4.3.1.2 OECD Due Diligence Guidance for Responsible Business Conduct
4.3.1.3 EU Instruments on Non-Financial Reporting and Corporate Due Diligence
4.3.2 Emergence of mHRDD and a Case of Reform in Corporate Law
4.3.3 Regulations on mHRDD in Europe: France, Germany, Switzerland and the Netherlands
4.3.3.1 French Law on Duty of Vigilance
4.3.3.2 German Act on mHRDD in Supply Chains
4.3.3.3 Swiss Initiative´s Proposal and the Counter-Proposal on mHRDD
4.3.3.4 The Dutch Bill on Responsible and Sustainable International Business Conduct
4.3.4 Suggestions for Regulating mHRDD in Turkish Law
4.3.4.1 The Personal Scope of the Suggested Regulation
4.3.4.2 The Material Scope of the Suggested Regulation
4.3.4.3 Monitoring Compliance
4.3.4.4 Sanctions for Non-Compliance
4.4 Interim Conclusion on Substantive Legal Analysis of FDL
References
Online Sources
Legislation, Reports, Resolutions and Opinions
Literature
Chapter 5: A Comparative Analysis of FDL Under Private International Law
5.1 Jurisdiction in FDL Claims: A Comparative Analysis of Turkish Law, EU and US Law
5.1.1 Jurisdiction in FDL Claims Under EU Acquis and US Law
5.1.1.1 The EU Acquis: Brussels I Recast
5.1.1.1.1 Scope of Application of Brussels I Recast
5.1.1.1.2 The Case of Multiple Tortfeasors
5.1.1.1.3 General Principle of Jurisdiction in Tort Claims Under Brussels I Recast
5.1.1.1.4 Choice of Jurisdiction Amongst Parties to a Tort Claim Under Brussels I Recast
5.1.1.1.5 Forum Non Conveniens
5.1.1.1.6 Forum Necessitatis
5.1.1.2 US Law: Alien Tort Statute
5.1.1.2.1 The Purpose and Scope of Application of Alien Tort Statute
5.1.1.2.2 Relevant Case Law Under Alien Tort Statute
Filrtiga v Peña-Irala
Union Carbide Corporation/Dow Chemicals (Bhopal)
Doe v Unocal
Sosa v Alvarez-Machain
Khulumani v Barclay National Bank
Morrison v National Australia Bank
Kiobel v Royal Dutch Petroleum
Jesner v Arab Bank
John Doe I v Nestle
Jam v IFC
5.1.2 International Jurisdiction of Turkish Courts in FDL Claims
5.1.2.1 General Principles Regarding International Jurisdiction Under Turkish Law
5.1.2.2 Jurisdiction in Tort Claims Under Turkish Law
5.1.2.3 Jurisdiction in Specific Claims Concerning Corporate Groups Under Turkish Law
5.1.2.4 Choice of Jurisdiction Amongst the Parties to a Tort Claim
5.1.2.5 Jurisdiction in Claims Concerning Violation of Personal Rights
5.1.2.6 Forum Non Conveniens
5.1.2.7 Forum Necessitatis
5.1.3 Interim Conclusion on Place of Jurisdiction in FDL Claims
5.2 Applicable Law in FDL Claims: A Comparative Analysis Through Turkish Law and EU Acquis
5.2.1 Applicable Law in FDL Claims Under Rome II
5.2.1.1 General Principle of Applicable Law in Tort Claims Under Rome II
5.2.1.2 Choice of Applicable Law Amongst the Parties to a Tort Claim
5.2.1.3 The Exception of Common Residence
5.2.1.4 The Exception of the More Closely Connected Law
5.2.1.5 The Exceptions of Public Policy and Overriding Mandatory Rules
5.2.1.6 Environmental Claims
5.2.2 Applicable Law in FDL Claims Under Turkish Law
5.2.2.1 General Principle of Applicable Law in Tort Claims Under Turkish Law
5.2.2.2 Choice of Applicable Law Amongst the Parties to a Tort Claim
5.2.2.3 The Exception of the More Closely Connected Law
5.2.2.4 The Exceptions of Public Policy and Overriding Mandatory Rules
5.2.2.5 Claims Against the Tortfeasor´s Insurer
5.2.2.6 Special Rule on Applicable Law for Corporate Groups
5.2.3 Interim Conclusion on Applicable Law in FDL Claims
References
Online Sources
Legislation, Reports, Resolutions and Opinions
Literature
Chapter 6: Conclusion