Big corporations routinely use a range of judicial procedures to avoid liability for harms they have caused or contributed to when they face charges from communities, workers, or human rights defenders. Although navigating judicial systems strategically is legal, and normally within the professional responsibilities of lawyers, these strategies often leave those seeking judicial remedy for business-related human rights abuses without proper remedy for the (on-going) harms they are facing.
Legal response strategies
Using this type of strategy, companies make use of possibilities within the legal system to avoid responsibility for business-related human rights abuses. Corporations use this strategy either by retaining in-house counsel specifically for this purpose; or by engaging specialised law firms. Unlike some of the strategies in the other categories, e.g. the filing of Strategic Lawsuits against Public Participation, the strategies featured here are mostly defensive actions taken by corporations and their lawyers following the initiation of charges by communities, workers or human rights defenders. The exception here is the strategy to take states to international arbitration using the Investor State Dispute Settlement (ISDS) system, which may or may not be provoked by an initial legal challenge. When successful, judicial strategies avoid a court decision that confirms corporate liability for human rights abuses, or prevent the adoption of legislation or investigations that could adversely impact a company’s investments.
Five ways to avoid liability through judicial strategies
Judicial barriers to justice for victims in business and human rights cases have been well documented. When companies are challenged in court, they have a variety of tools at their disposal to avoid liability. Commonly used strategies include: abusing judicial processes in order to delay and complicate proceedings and withhold attention from the substance of the case; engaging in jurisdiction shopping; shielding parent companies from liability for harms conducted by entities within their corporate group; and settling cases out of court to avoid a guilty verdict and setting a precedent. The last strategy that can be categorised as a judicial strategy to avoid liability is to take states to international arbitration to avoid the adoption of more stringent legislation or to put pressure on states to drop criminal investigations
 Gwynne Skinner and others, The Third Pillar: Access to Judicial Remedies for Human Rights Violations by Transnational Business (Brussels: European Coalition for Corporate Justice, 2013), 137., http://corporatejustice.org/eccj-publications/49-the-third-pillar-access-to-judicial-remedies-for-human-rights-violations-by-transnational-business (accessed November 11, 2019); Daniel Blackburn, Removing Barriers to Justice: How a treaty on business and human rights could improve access to remedy for victims (Amsterdam: Stichting Onderzoek Multinationale Ondernemingen (SOMO), 2017), 77., https://network.somo.nl/removing-barriers-justice/ (accessed November 11, 2019); Amnesty International and Business & Human Rights Resource Centre, Creating a paradigm shift: Legal solutions to improve access to remedy for corporate human rights abuse (London: Amnesty International Ltd, 2017), 57., https://www.amnesty.org/en/documents/pol30/7037/2017/en/ (accessed November 11, 2019).