{"title":"直接父母过失责任:让母公司对其外国子公司的人权影响负责的一种扩大手段","authors":"Nora Mardirossian","doi":"10.2139/SSRN.2607592","DOIUrl":null,"url":null,"abstract":"In order to provide access to remedy for victims of human rights impacts and encourage parent companies to prevent future impacts by their foreign subsidiaries, there is a need for national courts to apply tort law duty of care obligations to parent companies. This paper argues that parent companies with high levels of control or supervision of their subsidiaries owe a direct duty of care to those whose risk of injury is foreseeable. When these parents act negligently – failing to meet this duty of care or exercise due diligence – in controlling the actions of their subsidiaries, they should be held directly liable. The paper aims to clarify why and how parent companies can be held liable for failing to exercise a requisite duty of care in controlling the acts of their subsidiaries when human rights impacts result. First, the need to turn to conventional tort litigation of human rights impacts in the wake of Kiobel is discussed. Next, the paper discusses the normative justifications for holding parent companies accountable and gives a short overview of alternative approaches to doing so. The paper then turns to two recent decisions that have opened up the ability to bring direct parental negligence claims and that should serve as examples for other courts, especially those operating under common law tort principles. In the U.K., the court in Chandler v. Cape held a parent company owed a direct duty of care to the employees of its subsidiary and that that duty was breached. In Canada, the Choc v. Hudbay court found that a parent company may owe a direct duty of care to a Guatemalan indigenous community whose rights were violated by a subsidiary of a Canadian parent company. Finally, the conformity of these decisions with international human rights law principles will be considered.","PeriodicalId":106035,"journal":{"name":"Human Rights & the Global Economy eJournal","volume":null,"pages":null},"PeriodicalIF":0.0000,"publicationDate":"2015-05-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":"16","resultStr":"{\"title\":\"Direct Parental Negligence Liability: An Expanding Means to Hold Parent Companies Accountable for the Human Rights Impacts of Their Foreign Subsidiaries\",\"authors\":\"Nora Mardirossian\",\"doi\":\"10.2139/SSRN.2607592\",\"DOIUrl\":null,\"url\":null,\"abstract\":\"In order to provide access to remedy for victims of human rights impacts and encourage parent companies to prevent future impacts by their foreign subsidiaries, there is a need for national courts to apply tort law duty of care obligations to parent companies. This paper argues that parent companies with high levels of control or supervision of their subsidiaries owe a direct duty of care to those whose risk of injury is foreseeable. When these parents act negligently – failing to meet this duty of care or exercise due diligence – in controlling the actions of their subsidiaries, they should be held directly liable. The paper aims to clarify why and how parent companies can be held liable for failing to exercise a requisite duty of care in controlling the acts of their subsidiaries when human rights impacts result. First, the need to turn to conventional tort litigation of human rights impacts in the wake of Kiobel is discussed. Next, the paper discusses the normative justifications for holding parent companies accountable and gives a short overview of alternative approaches to doing so. The paper then turns to two recent decisions that have opened up the ability to bring direct parental negligence claims and that should serve as examples for other courts, especially those operating under common law tort principles. In the U.K., the court in Chandler v. Cape held a parent company owed a direct duty of care to the employees of its subsidiary and that that duty was breached. In Canada, the Choc v. Hudbay court found that a parent company may owe a direct duty of care to a Guatemalan indigenous community whose rights were violated by a subsidiary of a Canadian parent company. 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引用次数: 16
摘要
为了向人权影响的受害者提供获得补救的机会,并鼓励母公司防止其外国子公司今后造成影响,国家法院有必要将侵权法中的注意义务适用于母公司。本文认为,对子公司具有高度控制或监督能力的母公司对可预见伤害风险的子公司负有直接注意义务。当这些母公司在控制其子公司的行为方面行为疏忽——未能履行这种注意义务或尽职调查——时,它们应该承担直接责任。本文旨在澄清,当对人权产生影响时,母公司为何以及如何对未能履行必要的注意义务以控制其子公司的行为承担责任。首先,本文讨论了继Kiobel案之后转向传统侵权诉讼的人权影响的必要性。接下来,本文讨论了追究母公司责任的规范性理由,并简要概述了这样做的替代方法。然后,论文转向了最近的两项裁决,这两项裁决开启了提起直接父母过失索赔的能力,这应该成为其他法院的榜样,特别是那些在普通法侵权原则下运作的法院。在英国,在Chandler v. Cape一案中,法院认为母公司对其子公司的雇员负有直接的注意义务,而这一义务被违反了。在加拿大,Choc诉Hudbay法院认定,母公司可能对危地马拉土著社区负有直接注意义务,该社区的权利受到加拿大母公司子公司的侵犯。最后,将审议这些决定是否符合国际人权法原则。
Direct Parental Negligence Liability: An Expanding Means to Hold Parent Companies Accountable for the Human Rights Impacts of Their Foreign Subsidiaries
In order to provide access to remedy for victims of human rights impacts and encourage parent companies to prevent future impacts by their foreign subsidiaries, there is a need for national courts to apply tort law duty of care obligations to parent companies. This paper argues that parent companies with high levels of control or supervision of their subsidiaries owe a direct duty of care to those whose risk of injury is foreseeable. When these parents act negligently – failing to meet this duty of care or exercise due diligence – in controlling the actions of their subsidiaries, they should be held directly liable. The paper aims to clarify why and how parent companies can be held liable for failing to exercise a requisite duty of care in controlling the acts of their subsidiaries when human rights impacts result. First, the need to turn to conventional tort litigation of human rights impacts in the wake of Kiobel is discussed. Next, the paper discusses the normative justifications for holding parent companies accountable and gives a short overview of alternative approaches to doing so. The paper then turns to two recent decisions that have opened up the ability to bring direct parental negligence claims and that should serve as examples for other courts, especially those operating under common law tort principles. In the U.K., the court in Chandler v. Cape held a parent company owed a direct duty of care to the employees of its subsidiary and that that duty was breached. In Canada, the Choc v. Hudbay court found that a parent company may owe a direct duty of care to a Guatemalan indigenous community whose rights were violated by a subsidiary of a Canadian parent company. Finally, the conformity of these decisions with international human rights law principles will be considered.