In addition to strengthening the obligations and liability of multinationals, it is necessary to ensure that victims have access to the justice system in order to assert their rights. The fundamental right of access to justice must not be undermined in any way, in law or in fact.
However, there are many legal and practical barriers that impede access to justice. These obstacles exist both upstream and downstream of judicial action.
Upstream of judicial action, the lack of transparency and access to information on multinationals is a major obstacle. Indeed, the international activity of companies and the violations they commit are largely hidden.
This is due, on the one hand, to the private nature of corporate activities and, on the other hand, to the remoteness of violations and offences within complex value chains. The use of tax and legal havens as well as the protections for corporate secrecy, tax secrecy, and banking secrecy also contribute to this opacity.
This secrecy prevents access to justice, particularly when victims are required to establish proof of a company's liability. The information relevant to establishing such proof is held by the company itself. Foreign victims are also confronted with cultural, linguistic, and financial barriers which increase the inequality between the parties involved.
The few existing legal instruments, which aim to enforce some form of transparency on companies' activities or allow ad hoc access to the information they hold, are completely insufficient and do not resolve the asymmetry of information. Besides, the courts themselves are regularly limited by the lack of international judicial cooperation as well as the lack of financial and human resources.
Further along in the judicial process, other obstacles make it more difficult to bring multinationals before the courts. Particularly, bringing cases before criminal and civil courts raises questions of jurisdiction and the applicable law, which are inherent to the international nature of such violations.
As for civil liability, although access to French courts is possible under the conflict of jurisdiction rules of private international law, these rules do not always allow for the application of the most protective law for victims. The extraterritorial application of criminal law is seriously curtailed and limited in practice.
Support Sherpa: help us promote justice for all communities and the environment
Proposal 6 — To facilitate evidence collection, establish a genuine system of access to information of general public interest held by multinationals, which can be sanctioned by courts, and reinforce the capacities of the courts through specialisation and increasing their resources
Proposal 7 — Remove obstacles to bringing cases to court and the application of the most protective law in disputes involving multinationals by amending, in particular, Articles 113-5 et seq. of the Criminal Code and adapting the rules of conflict of law in private international law