New Development of Parent Company Direct Liability Theory from the Perspective of Business and Human Rights and China’s Strategies
With the development of Business and Human Rights(BHR)movement,in order to access to effective remedy,victims who suffer personal injury due to the actions of subsidiaries within a corporate group tend to file lawsuits in the home country courts of multinational corporations in order to obtain effective remedies.However,according to existing laws,the liability born by a subsidiary is not surely extended to its parent company.Due to the difficulties of establishing indirect lia-bility based on piercing the corporate veil,and the rareness of its application in the tort cases,the judicial practice develops the theory of direct liability represented by the duty of care.Following the UN Guiding Principles on Business and Human Rights,the human rights due diligence(HRDD)becomes the new basis for the direct liability theory.In recent years,mandatory HRDD legislation has gradually become a trend.The HRDD aims at the prevention in advance,while the duty of care focuses on the remedy afterwards.The mandatory HRDD law combining the HRDD and the duty of care is the most feasible for achieving the purpose of human rights protection.When it comes to China,the legislator should legislate a man-datory HRDD law that includes the HRDD obligation and the duty of care,so as to bring into play the combined effect of corporate law and tort law.Besides,the judges can explain the existence of the duty of care from the existing tort liability theory,so that BHR litigation can have real triable issue and be accepted by the Chinese people’s courts.Finally,Chinese enterprises should do a good job of compliance and focus on the implementation and realization of human rights protection.
duty of carehuman rights due diligencedirect liabilityparent company liabilitybusiness and human rights
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