Jurisdiction in the Global Village: The Nation State and Transnational Corporation

The phenomenon of transnational corporations (TNCs) is not new, yet their economic and quasi-political dominance has risen to unknown heights in the last decade of trade liberalisation and consequent spiralling of global economic interdependence. While TNCs have been generating significant wealth for the West, their corporate practices and abuses of power, in developed, but especially in developing countries, have come into sharp focus at all levels, governmental, academic and popular. In the academic legal literature, there have been calls, for example, for reconceptualisation the legal Institution of the company and adjusting company law, discarding its underlying neo-liberal assumptions, for reforms within the policies of the WTO as well as other international institutions such as the IMF and the World Bank and for moving away from the state-centric international human rights regime.
This research seeks to contribute to the broader academic debate on corporate governance by focusing on one aspect which has proven one of the within stumbling blocks to securing corporate accountability: law based on territoriality and nationality. Broadly, this project examines the intractable conflict between global commerce generated by highly dispersed and mobile TNCs, on the one hand, and the paradigm of national law on the other hand. More specifically, the question addressed Is to what extent traditional rules of regulatory competence are both intrinsically and actually equipped to prevent TNC forum-shopping to the detriment of their employees, customers, communities and States within which they operate. The study will explore and compare the rules of competence in the civil and criminal context with the view to providing suggestions for maximising the internal coherence and practical efficiency of a regulatory framework inherently unsuited to deal with global commerce. The specific contexts within which the rules are explored are anti-trust actions as an instance of criminal law and tort claims in the civil arena.
The research also entails the evaluation of the evolution of competence rules over the last thirty years, taking as a starting point Michael Akehurst's seminal article 'Jurisdiction in International Law' in the British Yearbook of International Law (1972) and using the legal treatment of TNCs as a reflection of contemporary jurisprudence on the topic. This idea is to isolate wider trends within the competence debate with the purpose of yielding forward-looking insights of application beyond the TNC context.