To what extent does domestic law, as enforced by domestic courts, provide a means of obtaining redress against multinationals for loss or damage arising from poor health, safety or environmental standards overseas? Until recently, the experiences of plaintiffs in national courts had not been very encouraging. However, a series of pro-plaintiff decisions (of which the House of Lords decision in Lubbe v. Cape plc is a good example) have re-ignited interest in the regulatory possibilities afforded by private claims.

Cases like Re Bhopal and Lubbe v. Cape plc dramatise very clearly the potential dangers of an ‘unregulated’ international system, in which multinationals can dump their most hazardous activities and processes on poorer countries, safe in the knowledge that they are unlikely to be required to compensate their victims fully, if at all. Given the lack of enforcement machinery at international level, it is not surprising that plaintiffs are now exploring the potential of private claims under domestic laws to hold multinationals to account. The past decade or so has seen a sharp increase in the number of ‘foreign direct liability’ (‘FDL’) claims, that is, claims brought in home state courts that target, not the subsidiary, but the parent company as the apparent ‘orchestrator’ of company-wide investment standards and policies. So far, a number of prominent home states have been affected – including the UK, the USA, Australia and Canada – and there is no reason to expect that it will stop there.