The standard account of corporate human rights accountability assumes that corporate entities, rather than individual corporate officers or employees, are the optimal targets of regulatory litigation. This assumption has led human rights advocates to despair over recent court decisions that make it increasingly difficult to bring suit against corporations for human rights violations. In light of these decisions (and similar barriers to suits against corporate entities in some other jurisdictions around the world), human rights advocates find themselves at a crossroads. Will litigants focus on new legal theories or on bringing their claims in new fora that offer better chances for prosecuting claims directly against corporate entities? Or, will they instead, or in addition, pursue claims against individual corporate agents?
While the standard account would suggest the former, that answer may be neither realistic nor correct. In fact, the arguments underlying the conclusion that institutional liability is essential were developed outside of the human rights context. To be sure, many of the same goals that underlie human rights litigation also underlie the traditional, domestic corporate litigation context in which these arguments originated. Yet, a more complex set of motivations are involved in the project of holding multinational corporations accountable for their complicity in human rights violations. Failing to consider the nontraditional goals that underlie human rights litigation leads to an incomplete account regarding the importance of different forms of liability in this context.
This Article develops a typology of goals underlying corporate human rights litigation and then “matches” these goals to the benefits and drawbacks of individual versus institutional liability. It concludes that there are significant benefits to naming individual corporate actors as defendants that have been largely overlooked. Far from being the disaster that it has been depicted to be, litigation targeting individual corporate actors has great potential to benefit victims and to serve as an important addition to the regulatory tool kit.