Peeling the Onion: On Choices Judges Make in Transnational Labour Litigation

Transnational labour law is a multi-scalar assemblage of agents, institutions, instruments and legal concepts that has emerged to address the governance gap caused by the mismatch between the global nature of production and the territorial format of labour law. Lead firms, most often located in the Global North, source production through a chain of subsidiaries and suppliers in developing countries with weak labour and human rights laws, weak law enforcement mechanisms, or both. Global value chains (GVC) transcend national borders and offshore production and supply by carefully choosing venues based on direct economic costs and the local legal regimes. Public international law, especially human rights conventions of the International Labour Organization (ILO) and the United Nations (UN), provide strong normative foundations for transnational labour law, but the associated enforcement mechanisms are weak, and traditionally they do not apply directly to the private corporate actors. A variety of global, regional, bilateral and unilateral trade laws that have incorporated labour and human rights commitments in side agreements and social clauses may boost the normative acceptance of such rights, but do not resolve the problems presented by the public international law instruments. Moreover, neither public international nor trade laws provide opportunities for workers to directly assert their claims and seek redress.