Taking Salience Seriously: The Viability of Ronald Dworkin's Theory of Salience in the Context of Extra-Territorial Corporate Accountability

In his posthumously published article “A New Philosophy for International Law”, Ronald Dworkin argues for the adoption of “salience” as basis for establishing international legal standards. Writing in the context of international law, Dworkin describes salience as follows: “If a significant number of states, encompassing a significant population, has developed an agreed code of practice, either by treaty or by other form of coordination, then other states have at least a prima facie duty to subscribe to that practice as well, with the important proviso that this duty holds only if a more general practice to that effect, expanded in that way, would improve the legitimacy of the subscribing state and the international order as a whole.” Dworkin argues that the limitations of the accepted grounds for establishing international law often fall short especially when addressing problems that necessitate forced collective action such as climate change. Although he makes no reference to multi-national corporations, many of the challenges brought out by Dworkin apply to multi-national corporations. The challenges are particularly daunting in the context of multinationals operating in the developing world where corporate governance structures provide nations in the developing world with limited voice and power. Dworkin’s doctrine of salience is well-suited for application in the context of transnational corporations. Dworkin’s salience seems to reflect what can take place and what is taking place in the development of this area of the law. In addition, salience presents a means for enabling the mutual development of coherent and referential international standards concerning the judicial management of extra-territorial corporate accountability. The need that salience can address is well demonstrated in the recent United States Supreme Court case of Kiobel v. Royal Dutch Petroleum Co. This paper shows how Dworkin’s theory of salience offers a useful theoretical construct for developing a global approach to extra-territorial corporate jurisdiction and liability that can secure benefits and justice for nations in developing world.