ABSTRACT
Business liability for human rights violations may be established in court in numerous ways. If the violations amount to criminal offences, companies or individual businesspeople may be prosecuted. Victims then tend to be relegated to a secondary role, although the partie civile status gives them a more prominent role in civil law than in common law countries.1 Another route, which places victims at the heart of proceedings, is for them to bring a claim against the company in the hope of obtaining financial compensation as a civil remedy. Many of these civil claims are not explicitly labelled business and human rights claims but are personal injury claims or claims for compensation for property damages which have affected the livelihood of the claimants. The cause of action may derive from tort law, environmental law or other areas of law. Yet, there is a now a marked tendency to consider them as part of a growing body of business and human rights litigation, even if the actual causes of action may be named differently. Whether the violation is remedied through the civil or criminal route
depends on various legal considerations. Importantly, it also depends on the country in which it is being litigated. Criminal cases are more likely in continental Europe, while in the United States the emphasis is on civil litigation. Speaking about the Alien Tort Statute (ATS),2 a federal statute which has come to play an essential role in business and human rights civil litigation in the United States, Kaeb and Scheffer note that
[w]hile private party litigation plays an important role in American society as a vehicle for social change, civil litigation in most European legal systems is perceived as merely settling a private dispute in an individual case. But the European discomfort and reluctance to mimic the ATS in its structure are not indicative of a sentiment that corporations should be free from liability for their overseas involvement in violations of international law, which often amount to international crimes. Quite the opposite is true.
