A Global Concept of Justice - Dream or Nightmare? Looking at Different Concepts of Justice or Righteousness Competing in Today's World

id=607241 (follow "Stanford Law School" hyperlink). 56. (2000) 4 All E.R. 268 (H.L.) (appeal taken from Eng.) (U.K.). 57. In Berezovsky v. Michaels and Others; Glouchkov v. Michaels and Others (2000) 2 All E.R. 986 (H.L.) (appeal taken from Eng.) (U.K.), the House of Lords was challenged by inventive counsel to decide whether an internationally disseminated libel constituted a number of separate torts in each country of publication or whether it should, at least for some purposes, be viewed as a "global tort." U.S. law has solved the issue on the interstate level with the Uniform Single Publication Act, which in effect provides that, with respect to a single publication, only one action for damages is maintainable. See RESTATEMENT (SECOND) OF TORTS § 577A (1976); William L. Prosser, Interstate Publication, 51 MICH. L. REv. 959, 994 (1953). 2007] 1035 6LOUISIANA LA W REVIEW Company58 held that a plaintiff domiciled in a State that was not a contracting party to the 1968 Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters could still invoke the rules of the Convention. It is a safe bet that the trend is likely to continue, with other countries, such as Japan and Belgium, experiencing lawsuits testing universal jurisdiction for civil liability. 59 2. Courts of Law and the Court of Global Public Opinion In the end, Mr. Fildrtiga failed to receive any monetary compensation or any other substantial remedy, international politics getting in the way; but, as an influential commentator has pointed out, defendants in such cases, "[f]rom the broader perspective of 'moral liability' . . can 'win' the legal battle but 'lose' in the court of public opinion.1 60 Indeed, the court of global public opinion is a most potent deterrent for corporations and individuals in the global game, enforced by the possibility of a publicity disaster brought by a (perhaps even, in the end, ineffective) tort claim for violation of international standards of avoiding harm. As the influential UK 58. [2000] ILPr 549 (ECJ); [2001] QB 68 [Group Josi]. See F. Ibili, At Last: The EC Court of Justice on Forum Non Conveniens, 53 NETH. INT'L L. REV. 127 (2006). 59. See SustainAbility, supra note 31, at 33. An important and related recent phenomenon is the one of "default deference." Courts in different jurisdictions that cannot consider themselves bound by alien precedent often do, nevertheless, recognize that "they cannot heave as if the general state of the law in the international community ... is none of [their] concern." See the remarks in The Procecutor v. Zejnil Delalic et al. (Celebici Case), Decision, Case No. IT-96-21-A, A.Ch., 20.2.2001, Ziff. 26 (ICTY). See also Gunther Teubner & Andreas Fischer-Lescano, Wandel der Rolle des Rechts in Zeiten der Globalisierung: Fragmentierung, Konstitutionalisierung and Vernetzung Globaler Rechtsregimes, in GLOBALISIERUNG UND RECHT 3, 53 (Junichi Murakami, Hans-Peter Marutschke & Karl Riesenhuber eds., 2007). 60. Bill Baue, Win or Lose in Court: Alien Tort Claims Act Pushes Corporate Respect for Human Rights, Bus. ETHICS, Summer 2006, at 12, available at http://www.globalpolicy.org/intljustice/atca/2006/06winlose.pdf. Indeed, even legal victories can be very costly, as McDonald's found in the aftermath of the so-called McLibel trial. McDonald's was awarded £40,000 in damages after winning a lengthy legal battle against a small group of activists that had circulated defamatory leaflets. In addition to incurring costs estimated at £10 million, McDonald's also lost huge amounts of credibility and goodwill through negative media coverage. Indeed, the case generated huge publicity for the activists' case, and the offending leaflets are still on the Internet. See, e.g., http://www.mcspotlight.org/case/pretrial/factsheet.html. 1036 [Vol. 67 A GLOBAL CONCEPT OF JUSTICE think-tank SustainAbility reported in the findings of a London workshop held in 2005: [B]usiness is vulnerable to new forms of "legal activism." This reflects three trends: the shift by NGOs away from attacking to exploiting legislation; the emergence, particularly in North America, of a highly profitable class actions industry; and the arrival of a new generation of lawyers, many of whom put correcting social and environmental injustice ahead of salary and career development . . . . Many of companies' traditional protections from liability-separation by geography, incorporation or time-have been attacked and, in some instances, undermined in the last five years. 6 1 The report concludes that for corporations across the world, "hard" legal liability (defined as obligations under local, national, or international regulation or law) and "soft" moral liability (defined as the violation of stakeholder expectations of ethical behavior in such a way as to put business value at risk) are converging. 62 Hard legal liability of global corporations has increased by the rise of phenomena such as, first, the so-called "foreign direct liability litigation," for human rights violations in distant geographical locations.63 Second, criminal and civil liability arising from securities litigation has been transformed into a transborder, global phenomenon, as globalization of corporate capital carries with it the jurisdictional sting and influence of the most demanding national regulatory regimes. Thus the Sarbanes-Oxley legislation in the United States, introduced to combat U.S. corporate corruption, is said to be having an increasing impact also on European companies, both in the United States and at home in Europe. Soft moral liability is increasing with new laws on corporate transparency that are being introduced in several industrialized countries 65 and that require mandatory disclosure of social and 61. SustainAbility, supra note 31, at 7. 62. Id. at 6. 63. See Halina Ward, Int'l Inst. for Env't & Dev., LEGAL ISSUES IN CORPORATE CITIZENSHIP (2003), available at http://www.iied.org/pubs/pdf/fullU 16000IIED.pdf. 64. See Clifford Chance, Europe to Feel Impact of US Corporate Crackdown (Nov. 11, 2003), http://www.cliffordchance.com/news/archive/ details.aspx?FilterName=@URL&contentitemid=6278. 65. In the United States, an international group called International Right to Know Coalition is actively promoting legislation that would require U.S. 2007] 1037 3LOUISIANA LA W REVIEW environmental issues in company annual reports and accounts, which can yield information leading to disastrous publicity and enforce moral responsibility to combat practices such as sweatshop labor arrangements. In the case of Kasky v. Nike, Inc., 6 the issue was whether the U.S. First Amendment protected Nike, Inc. from being sued for violating state consumer-protection laws concerning allegedly false advertising when such statements were made in response to charges by Nike's critics and concerned wages, treatment, and safety conditions of Nike's workers at overseas factories. The U.S. Supreme Court refused to overrule the Supreme Court of California, which had ruled that the Nike statements were not protected by the First Amendment. The case shows that corporations are vulnerable to consumer reaction and pressure when making advertising statements, and it also shows that lack of concern for social justice is increasingly bad publicity for global corporate players. But soft moral responsibility issues may also turn quickly into hard liability ones, as the current debate on climate change shows. 67 Commenting on the U.S. tort litigation system, Lord Peter Levene, former Chairman of Lloyd's of London, has been quoted as saying that "there's concern now that this blight is spreading to Europe . ,68 But, as succinctly put by the new Google Vice President for Global Communications and Public Affairs, "[j]ust as commerce has gone global, so liability is going global-and just as it took time for the rules of commerce to become clearly defined, now we're entering an era where the rules of liability are getting sorted