Rather than consider text, or text in light of the various mandates and principles purportedly manifested in the language used to build the Zero Draft, we thought it might be useful to consider text within the context of the initial commentary it might generate among Zero Draft stakeholders motivated enough to make them. These, then, might usefully inform the reading of text, and sharpen analysis of its structure and consequences.
This Part 3 focuses on Article 7 of the Zero Draft (Applicable Law).
Summaries of discussions on each article of the Zero Draft, based on the written submissions available on the website of the OEIGWG
- paragraph 2 allows victims to invoke the legislation of the host state of TNCs. This may provoke reservations and objections, given the national regulation of the applicable law and jurisdiction, restrictions justified by public order, or by other reasons that limit the applicability of foreign law;
- the Draft Treaty should incorporate a language allowing Parties to produce reciprocal obligations to modify domestic legislation, to allow for actions initiated by citizens of another State party. Actions are to include those cases when, according to the domestic criteria for jurisdiction, jurisdiction can be exerted or acknowledged by more than one state.
- The focus placed on expanding extraterritorial jurisdiction does not respect national sovereignty and the principle of non-intervention in the domestic affairs of other States.
- The provisions take the focus off the need for States to improve victims' access to effective remedy at the domestic and local level.
- They ignore the practical and procedural shortcomings of extraterritorial jurisdiction
- Furthermore, this text contradicts the internationally recognized principle of the Rome II Regulation – under which the law in the jurisdiction where the tort occurred applies in general.