The contribution of this Article is both theoretical and practical. Considering that MNCs rarely suffer liability abroad, this Article identifies an emerging, understudied type of international agreement able to hold MNCs responsible for torts in the developing world. On a theoretical level, the research herein identifies situations in which arbitral decisions are superior to judicial rulings. This Article also advances the private dispute resolution literature, which has developed slowly due to arbitration’s private and confidential nature. The works that do discuss arbitration overwhelmingly assume that the process favors corporations, rarely mentioning arbitration’s socially desirable qualities. Thus, this Article offers a needed discussion of the advantages arbitration presents over courts of law, as well as the legal implications of litigating and arbitrating against MNCs.
Part I explores the law of suing western companies in the developing world, adding policy insights to the reasons why MNCs are largely immune from suit. Part II reviews the nature and efficacy of private remedies, which is accomplished by framing the arbitration debate from several perspectives. Part III offers a discussion of recent contracts and international agreements that use arbitration as a means to hold MNCs accountable. Then, Part IV discusses potential applications of such a mechanism, followed by the Conclusion.