When evaluating the implementation of the United Nations Guiding Principles on Business and Human Rights (UNGPs), some may claim that the State’s duty to protect (Pillar 1) has been fulfilled with the adoption of National Action Plans; and that the corporate responsibility to respect human rights (Pillar 2) has been fulfilled by calls for companies to act responsibly through initiatives that seek to make them aware of social expectations. However, the effectiveness of both types of initiatives to bring about real changes in people’s lives is open to criticism. Access to remedy (Pillar 3) is notoriously the weaker pillar of the UNGPs.Footnote ¹ In Transterritorialidade – Uma Teoria de Responsabilização de Empresas por Violações aos Direitos Humanos (Transterritoriality – A Theory of Corporate Accountability for Human Rights Violations), Ana Claudia Ruy Cardia Atchabahian confronts this reality.

The book is law-oriented and will mainly appeal to those with a legal background, perhaps less to a business audience. The theory presented is developed from the realization that Pillar 3 is neglected by both states and businesses. The author is on a quest for instruments that can ensure corporate accountability for human rights violations. First, the book presents the reasons for choosing access to remedy as a research topic; then it analyses existing instruments and initiatives to promote redress, and how they fall short of what is promised and desired. Finally, the author proposes her own theory, which revolves around the application of extraterritoriality, but in such a way that it increases the chances that the substantive law applied is victims-centred.

The first chapter delivers the backdrop to Atchabahian’s concerns, namely the post-World War II reconstruction of countries based on consumption, and the consequent dependence on companies that produce goods and services, which are attracted to countries in exchange for a portion of sovereignty. Investments, economic prosperity, and the possibility of consumption bring a sense of security that blinds people to the human and environmental costs of this arrangement. International law coping with this situation is fragmented, leading to insecurity that is reinforced by the actions of transnational corporations. States, voluntarily or not, fail to protect individuals. The author identifies this as a violation of Douzinas’ ‘ethics of alterity’, the ‘ethics before the being and the obligation before the others’ need or interest’ (p. 22). The response proposed is based on Amartya Sen’s ‘behavioural ethic’ (p. 22) whose normative framework arises from Gunther Teubner’s transnational or global law and the norms of international human rights law.

Chapters 2 and 3 discuss corporate liability in existing initiatives, and their ability to produce redress. The UNGPs, the current UN process for drafting a treaty on business and human rights and domestic models (e.g., national action plans or specific legislation like the U.S. Alien Tort Act, the French Corporate Duty of Vigilance Law, the UK Modern Slavery Act, and the EU GDPR (General Data Protection Regulation)) are evaluated. Although some of these models are recent, and perhaps it is too early to judge them, Atchabahian concludes that they do not advance corporate accountability. Having searched unsuccessfully for an answer from the known initiatives, she concludes that transnational challenges must be addressed by equally transnational solutions such as international human rights adjudication. She takes a closer look at the Inter-American and European Courts of Human Rights to conclude that there is an expansive trend in those systems, which gradually begin to ‘consider the corporate influence on the omission or commissioned actions of member states regarding the protection of human rights in their respective territories’ (p. 73). For the author, apart from the marginal role of the regional courts for the protection of human rights, international law contributes little to holding corporations accountable. She adds that the lack of compliance with the decisions of the Courts, however, does not reflect a failure of international law, but rather a ‘consequence of the malfunctioning of the entire current system of global society’ (p. 77) based on modern and neoliberal foundations.

Chapter 4 tackles extraterritoriality and, as the author demonstrates, how it fails to produce results. There she also lays down the foundations for her theory. Although Atchabahian highlights the need for timely extraterritoriality implementation, meaning that redress is not achieved when victims wait too long for rulings on jurisdiction, she notes that timely rulings alone will not satisfy victims’ needs. Her theory aims to facilitate procedural rulings applying extraterritoriality coupled with a reflection on the content of applicable substantive law (p. 125). Here is the first concrete indication of the meaning of transterritoriality: the need to overcome both procedural obstacles to apply extraterritoriality, and material obstacles posed by the absence of legal standards that favour victims.

The theoretical frameworks used are then presented. Those are the fragmentation of international law (Martin Koskenniemi), societal constitutionalism (Gunther Teubner), transconstitutionalism (Marcelo Neves) and the transversal governance of fundamental rights (Marcelo Torelly). Although there is no direct explanation of how each theory is used, which would be beneficial for the understanding of the text, we can infer some conclusions. Atchabahian considers that the fragmentation of international law may benefit those who need to access redress, by allowing them to consider various regimes. From Teubner’s ideas, she takes the state obligation to coordinate cooperation between public and private actors within and outside its jurisdiction (p. 134). From transconstitutionalism, the author borrows the idea that legal orders are in a heterarchical position, which fosters a dialogue constructing a ‘ratio decidendi … by means of agreement or disagreement with the persuasive authority of the principles and values of other states’ (p. 135), integrating ‘post-modern society by means of the joint solution of its legal problems’ (p. 137). Finally, she takes from Torelly the relevant role of the courts in what he calls the third phase of global governance, which is the post-Cold War period, characterized by the self-regulation of certain sectors of society and the transfer of the solution of problems shared between public and private actors to domestic and international courts. Drawing from these theoretical contributions, transterritoriality is defined as ‘the possibility of a transnational company being held liable in a territory other than the one in which its negative action occurred, under the permission of express rules of jurisdiction, complemented by the contributions of societal constitutionalism, transconstitutionalism and transversal governance of fundamental rights, with a transcivilizational interpretation by judges’.

Transterritoriality does not seek to present new tools for judicial redress, but it builds on known instruments. Atchabahian’s proposal is clearly divided into two paths that must necessarily be taken together. Extraterritoriality must be coupled with the promotion of reparation based on judicial dialogue and with respect for the centrality of the victims’ suffering. Extraterritoriality seeks to give victims the chance to have their claim heard in some jurisdiction, and a positive outcome is not guaranteed. The positive outcome, in the author’s view, would be possible if there was cooperation and heterarchical dialogue between judicial authorities.

There is a lot to discuss here. The text indicates that the dialogue will allow the application of rules which do not exist in the jurisdiction, but which are articulated by a judge who, based on the dialogue, has become acquainted with solutions from other jurisdictions and has interpreted the existing rules in their own jurisdiction to reach similar conclusions. She trusts an active judiciary – able to circumvent the absence of substantive rules to condemn companies to reparation – is essential to ensure corporate accountability since courts are true ‘spaces of production of new rights’ (p. 48). Such an innovative idea leaves some questions unanswered, such as how courts from different jurisdictions will engage in this dialogue; whether rules supporting the theory should be provided for in the treaty under discussion at the UN; or whether they can only be domestic in nature. The idea might raise other concerns; for example, the fact that it does grant judges an enormous power to ‘interpret’ legislation or ‘create’ legislation based on other jurisdictions’ rulings.

Transterritoriality is a theory that supports the possibility of expanding existing rules of jurisdiction, thus opening courts in the home countries of parent companies to victims. The theory also claims that this dialogue between jurisdictions will improve chances of obtaining redress. Substantive law applied to concrete cases in different jurisdictions will eventually develop into transnational norms. The theory is innovative for two main reasons.

First, it is two-tiered and tackles both procedural and substantive hurdles. The procedural tier concerns the well-known cases in which victims of corporate human rights violations reside in countries that are incapable of providing adequate responses, and are unable to take their claims to the jurisdiction of the parent company, or to cases in which this discussion has lasted for years. The author identifies extraterritoriality as a good solution for these problems. The second tier concerns injustices suffered by the victims of these violations in material terms. There it is argued that the best response comes from the judiciary and focuses on the content of rulings, on what grounds they rest, and their results.

The innovation also stems from the idea that neither path, alone, can achieve the results that the victims and the academic community have been demanding. It is worth noticing that the procedural tier reinforces the use of extraterritoriality as we know it, but it is the substantial tier that arguably contributes the most to access to remedy. Atchabahian’s defence that it is necessary to trust the judiciary as a caretaker of the victims’ interests and, especially, in how the judicial decision should be constructed so that the best response can be achieved, also opens paths for new debates that have potential for advancing the implementation of Pillar 3.

Questions might be raised and relate to judicial activism to apply norms that are not expressly foreseen but arise from dialogue with other jurisdictions; or to the responsibility of the organizational system of global society for the failure of the international regime; or to the concrete meaning of a redress system that is victim-centred and how it relates to the need of more decisions that accommodate the victim’s needs. They do not diminish the relevance of the theory presented; on the contrary, those questions show that the transterritoriality theory is robustly constructed, while leaving space for additional relevant research.