As the primary remedy for environmental and human rights abuses caused by transnational corporations in developing countries("transnational corpo-rate damages"),home State litigation presents a number of obstacles to plaintiffs at the jurisdictional and law-application levels,and its optimization is constrained by the territoriality of judicial sovereignty:at the domestic level,the courts'dy-namic stance on remedies for transnational corporate damages is constrained by the executive branch;at the international level,the expansion of the jurisdiction of home State courts has a negative impact on the rule of law in the host State.The above optimization barrier makes it difficult for home State litigation to inde-pendently resolve the dilemma of judicial remedies for transnational corporate dam-ages,and investor-state dispute settlement(ISDS)should be used as a complementa-ry mechanism to home State litigation.ISDS jurisdiction is based on the consent of the State,and has no territorial limitation,which has the potential to break through the optimization barrier of home State litigation.Specifically,in terms of jurisdiction,the host State can directly claim against investors through contractual arbitration or file counterclaims based on the investment agreement without being bound by principles such as forum non conveniens;in terms of application of law,ISDS treats overseas subsidiaries as investments and ignores their indepen-dence of personality,and thus their infringements can be attributed to the parent companies,and the application of international law is more liberal compared to that of domestic courts.In addition,the public interest focus of ISDS can mitigate the constraints of international investment protection on the regulatory sovereignty of host States and reduce transnational corporate damages at the source.
关键词
跨国公司侵害/母国诉讼/司法救济困境/ISDS
Key words
transnational corporate damages/home state litigation/dilemma of judicial remedy/investor-state dispute settlement
维普
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