A transnational normative constellation for corporate liability: exploring interlegality and the ungps

Faculty Colloquium

Presenter: Jaye Ellis, Full Professor at McGill University, and Senior Visiting Fellow at Sciences Po Law School

Discussant: Francis Akali Oloo, PhD Candidate at Sciences Po Law School

The concept of interlegality holds a good deal of promise for efforts to hold corporate actors to account for harms caused through their organisations, corporate groups, and value chains. This objective requires drawing on a range of bodies of law in different jurisdictions and normative sites, including non-state, transnational norms and standards. 

My broader research project tests the hypothesis that the reasonable person standard in civil liability law can absorb transnational sustainability norms through civil liability's reasonable person standard, one of the legal concepts that Karl-Heinz Ladeur describes as bridging facts and norms. This objective is made more attainable by the increased prevalence of epistemic obligations (legal or quasi-legal), that is, obligations for corporations to analyse the risks that their operations and activities generate. The approach of interlegality is particularly apt for a context such as this in which bodies of norms are organised in polycentric, heterarchical networks. Yet its application generates risks of its own. 

Through an analysis of the Nevsun decision of the Supreme Court of Canada, I explore some of the obstacles to the heterarchical, flexible approach of interlegality, as well as some challenges that it may pose both to the integrity of legal systems and to the communities and societies that find themselves caught up in these disputes and made, though indirectly, subjects - or perhaps objects - of law and legal systems in other countries. The Nevsun case is illustrative of these challenges: it issues from a deeply divided bench and, though ambitious and groundbreaking in its way, also illustrates important limitations and blind spots that can usefully be analysed in light of the concept of interlegality.