3.5 Scope for Remedy
Judicial mechanisms [page 33]
“Under the rules of private international law, a dispute about harm is judged on the basis of the law of the country in which it has occurred. If it is the result of the actions of a foreign subsidiary of a Dutch parent company, any liability on the part of the parent company will also be judged under the law of the country where it has occurred. Should the subsidiary in question be located in another country, the liability of the Dutch parent company will be judged according to the law of that country. A Dutch civil court may declare itself competent if there is a sufficiently close relationship with a Dutch legal person.”
Legislation with extraterritorial application [page 38-39]
“The consultations revealed a difference of opinion on the question of whether the Dutch court system should be open to civil or criminal law proceedings against Dutch companies in the event of alleged human rights abuses on the part of their foreign subsidiaries. Some of the people interviewed felt that the Netherlands should push at international level for an international agreement with extraterritorial application to cover international offences, since this would ensure more harmony in terms of a level playing field. Others, however, stressed that the principle of extraterritoriality would result in the Dutch legal system placing itself above the legal system of the country in which the alleged abuse had been committed.
The government would point out that extraterritorial application alone is not enough. A court judgment must also be enforceable, and it is not up to the Netherlands to decide for other countries whether this is possible. The government is therefore not convinced that legislation with extraterritorial impacts will contribute to preventing human rights abuses by foreign companies in the countries in which they are active. There is also too little international support for an international, legally-binding instrument.”