Combining action to leverage the law and shift the power balance

Over the past decade, strategic litigation has increasingly emerged as a powerful tool in the fight to realise human rights and counter harmful corporate strategies. It is particularly useful when multinational companies use complex structures to shield parent companies from liability for human rights and environmental harms.

As more civil society organisations (CSOs) have used strategic litigation, lessons have been learned about what works, what does not, and where the obstacles and opportunities lie. While individual legal cases can be ground-breaking and precedent-setting, change can also be case-specific, with the same issue having to be repeatedly litigated in slightly different ways, without leading to the much-needed wider systemic change. Additionally, civil society groups have not yet fully leveraged the potential for using different litigation avenues (civil, criminal, administrative and non-judicial processes) as part of one overarching strategic approach.

For many CSOs, strategic litigation is interesting but daunting, and seen as a high-risk tactic. Common obstacles faced by civil society actors include not only a lack of information but a lack of, or the high cost of, lawyers to support the legal action, and concerns about the financial risks involved. Yet there is unexplored potential for collaborations between CSOs and lawyers in the global north and south to take forward litigation in multiple jurisdictions, working to a shared goal, and providing each other with the support needed to manage the challenges of litigation.

As part of the Mind the Gap we are developing a new, networked approach to strategic litigation, that will draw on, and share, the expertise gained in the past years amongst CSOs and the litigators they work with. This approach combines two counter-strategies: deploying legal counter strategies and shifting the power balance. The evidence gathered by Mind The Gap shows that combining approaches and innovating have the potential to be highly effective in addressing the harmful tactics used by companies.

Watch this space!