Abstract
This article examines the growing trend in transnational litigation case law, where English courts retain jurisdiction over cases with only tenuous connections to England. This is done primarily on the basis that claimants would face a lack of access to justice in the alternative forum. I argue that this trend has three adverse implications. First, it undermines the doctrinal foundations of conflict of laws by compromising the doctrines of territorial sovereignty and comity. Second, while English courts may provide some measure of justice, the most effective remedies are generally delivered in the home state. Third, the trend reflects and reinforces historical patterns of Western imperialism, reproducing structural inequalities between the Global North and South.
Despite these concerns, I argue that conflict of laws can be leveraged to promote a decolonial approach. By extending mutual legal assistance to civil law cases, a form of judicial cooperation, Global South states can strengthen their legal systems and exercise greater judicial independence, while still benefiting from transnational support. Ultimately, while full judicial independence is the long-term goal, such judicial cooperation offers a pragmatic pathway to reduce reliance on English courts and ensure more effective, locally grounded justice.
1. Introduction
Following the English courts’ exercise of jurisdiction in Limbu v Dyson,[1] it is evident that the English courts are increasingly willing to exercise extraterritorial jurisdiction, the process of sovereign powers exerting jurisdiction beyond their territory, over matters with tenuous connections to the state. The case concerned whether claims related to forced labour suffered by Malaysian migrant workers against Dyson entities should be heard in England or Malaysia. This piece will first establish this trend by evaluating the relevant cases. Secondly, it will explain the challenges arising from the trend in three parts. First, it compromises the foundational principles of conflict of laws. Second, although extraterritorial jurisdiction is often justified on the basis of access to justice, such justice is most effectively delivered in the home courts. Third, from a post-colonial perspective, the trend replicates practices historically used by Western powers to further their colonial endeavours.
Thirdly, it will be argued that, through a decolonial approach, judicial independence in Global South states must be prioritised. While this issue extends beyond the traditional scope of private international law, conflict of laws scholarship can support a more balanced approach to transnational litigation through a framework applying mutual legal assistance to civil law cases, effectively addressing the challenges identified above. Judicial cooperation is particularly valuable, as it could facilitate access to justice in the home courts through judicial assistance while strengthening the state’s territorial sovereignty. Moreover, this focus on cooperation removes the imperialist undertones of the current trend, promoting comity between jurisdictions.
2. The Expanding Reach of English Jurisdiction in Transnational Litigation
The Framework of Jurisdiction under English Private International Law
Conflict of Laws (also known as private international law) relates to the laws which govern cross-border private law cases. Focusing on the jurisdictional rules, where the case is heard, I will examine, through a series of transnational litigation cases, how the English courts have demonstrated a growing willingness to exercise jurisdiction over cases with a tenuous affinity to England. For an English court to hear a case involving foreign litigants, the claimant must show a good and arguable case, satisfy a jurisdictional gateway under Practice Direction 6B of the Civil Procedure Rules (CPR), and demonstrate that England and Wales is the proper forum conveniens.[3] In Spiliada,[4] Lord Goff’s principle of forum non conveniens was established, enabling the courts to decline jurisdiction based on a two-step formulation: (i) There is a more suitable forum where the case should be heard, and (ii) it is plausible that the claimant can receive justice in the alternative forum. Forum non conveniens, ‘inconvenient forum’ is a discretionary test, with the rationale to ensure the case is tried in the most suitable forum. I will outline how increasingly, English judges exhibit deference in their discretion to allow another court to hear the case, exercising jurisdiction based on an inability to access justice in the ‘natural forum’. Consequently, the second limb of forum non conveniens has, in part, become a decisive factor in whether the courts retain jurisdiction.
Case Studies: Vedanta, Oliveira da Silva, and Limbu
Following a series of Supreme Court and Court of Appeal decisions, it is apparent that the courts show a willingness to exercise jurisdiction over transnational cases, with little connection to England beyond the defendant’s domicile. In Vedanta Resources PLC v Lungowe,[5] 1,826 Zambian villagers sued Vedanta, a UK-domiciled company and its subsidiary KCM, a Zambian company for pollution caused by KCM’s mining operations. Although the harm, mine operations, applicable law, witnesses and affected communities were all located in Zambia, Lord Briggs found that the claimant’s poverty and lack of suitable legal representatives in Zambia meant they would likely be denied justice there and retained jurisdiction in England. Similarly, in Oliveira da Silva & Others v. Brazil Iron Limited & Another,[6] 103 claimants sued two UK-domiciled companies for environmental damage caused by a mine operated by the companies’ subsidiary in Brazil. The judge found that Brazil was the more appropriate forum, as the claimants and witnesses only spoke Portuguese, and the applicable law was Brazilian. In addition, the alleged pollution occurred in Brazil, and there were already other proceedings regarding the mine underway there. Most of the documents were likely to be in Brazil and in Portuguese. However, due to a lack of financial assistance, the judge concluded that there was a real risk the claimants would not be able to obtain substantial justice. As a result, the English courts retained jurisdiction. Finally, in Limbu v Dyson,[7] 24 migrant workers alleged forced labour by Dyson’s Malaysian subsidiary; The Court of Appeal concluded that the claims could not effectively be brought to Malaysia due to the funding barrier, making England clearly and distinctly the appropriate forum. Even though in all three judgements, it was determined that England was not the natural forum, the English courts retained jurisdiction purely on the basis of an inability to access justice in the natural forum. There is a commonality in the reasons leading to such decisions, often relating to funding barriers and a lack of suitable legal capacity in the home forum, all of which fall under the broader umbrella of limited access to justice. Taken together, these cases show a willingness of the English courts to hear transnational cases, even though the ‘natural forum’ is not England but in the Global South, centring jurisdiction in the UK. However, I will challenge whether the English courts retaining jurisdiction on the basis of lack of access to justice produces effective justice.
3. Territorial Sovereignty, Comity, and the Limits of Judicial Reach
Retaining jurisdiction inevitably increases the claimants’ access to short-term justice; however, the consequences are threefold. Firstly, the continued dominance of the English courts in transnational litigation risks compromising the premises and rationale of jurisdictional rules. Secondly, to facilitate justice effectively and in a lasting manner, the jurisdiction ought to be exercised in the natural forum. Lastly, I contend that the retention of jurisdiction by the English courts inadvertently reinforces structural inequities in the judicial systems of countries in the Global South compared to those in the North. I will proceed to address each of these issues in turn.
The Doctrinal Foundations of Jurisdiction
To appreciate the consequences of undermining territorial sovereignty, it is necessary to consider that the foundations of conflict of laws were historically grounded in this principle. Jurisdiction, which authorises a court to subject litigants to its decisions, requires justification. This is especially true when compelling foreign litigants with no connection to the jurisdiction to submit to the court’s authority. Territorial sovereignty, a state’s exclusive control over its geographic area, is foundational to the structure of conflict of laws. Ulrich Huber formulated three maxims upon which the rules of conflict of laws rest. His first maxim effectively reinforced the principle of territorial sovereignty: ‘The laws of each state have force within the limits of that government and bind all subject to it, but not beyond.’[8] Building on Huber, Savigny accepted territorial sovereignty as the starting point for deriving private international law rules. However, Savigny expanded upon this, viewing the role of private international law as finding the law to which each relation ‘belongs’, to ‘ascertain the seat (the home) of every legal relation’, understood to be ‘that legal territory to which, in its proper nature, it belongs or is subject’.[9] Accordingly, the very fundamentals of private international law reflect territorial sovereignty. This approach has been widely adopted by scholars internationally; for instance, Beale, in the United States, emphasised territoriality when drafting the First Restatement of Conflict of Laws (1934) for the American Law Institute.[10] The foundations of this approach lay in the equality of sovereign states and their exclusive sovereignty over territory, which were taken to imply that acts within a territory ‘vested’ rights in private parties, which ought then to be recognised by foreign legal systems. The early scholars of conflict of laws, Huber, Savigny and Beale, grounded their rules and understanding of the discipline on the principle of territorial sovereignty, emphasising the geographical connection to a state authorising courts to exercise jurisdiction.[11] In doing so, these writers established the structural premise of the conflict of laws: that cross-border disputes could only be managed coherently if each state’s authority was mutually respected.
Despite arguments that territorial sovereignty is no longer relevant to present understandings of jurisdiction, it is the basis of the discipline.[12] This is reflected in current jurisdictional rules, which are predicated on a territorial nexus. At common law, the jurisdiction of the English Courts is based on valid service on the defendant. Service ‘as of right’ applies to claimants serving defendants within the jurisdiction while service ‘out’ refers to serving foreign defendants. Service ‘as of right’ is grounded upon a defendant’s domicile. Similarly, service ‘out’ is awarded through the CPR rule ‘gateways’. For example, if a contract was made within the jurisdiction or the damage from a tort was sustained in the jurisdiction, this satisfies service ‘out’. It is evident from the language used that the concept of jurisdiction is rooted in territorial principles, which the jurists of conflict of laws expressed.
It is against this historical understanding that the recent judicial trend towards access to justice reasoning must be evaluated, as it deviates from the understanding of territorial sovereignty as primal to jurisdictional power. In the recent cases of Vedanta, Limbu and Oliveira da Silva, the court’s reasoning for retaining jurisdiction was reasoned solely through ‘access to justice’ grounds, the second stage of Spiliada. This development reflects a shift in understanding that jurisdiction is no longer premised on geographical considerations but moral and functional ones. While this is pragmatic, it deviates from the historical foundations of private international law. This shift is problematic in its somewhat disregard for the principles of comity (respect for foreign jurisdictions), which, similar to territorial sovereignty, is central to the foundation of conflict of laws, particularly the forum non conveniens test.
Comitas gentium is Huber’s third maxim,[13] understood as recognising respect for transactions elsewhere. When English courts retain jurisdiction based on moral evaluations of another system’s ability to produce justice, they subtly introduce judicial chauvinism by imposing their subjective views, which is the exact attitude forum non conveniensattempted to counter. It was in Abidin Daver that Lord Diplock noted the introduction of forum non conveniens marked an essential change in the judicial attitude towards foreign courts, a move from ‘judicial chauvinism’ to ‘judicial comity.’[14] The intention of the doctrine of forum non conveniens permits courts to reconcile these interests by deferring judgment to foreign courts that have a stronger connection with the matter. The onus lies in identifying the courts with the most real and substantial connection, and the development of the cases discussed raises questions about whether this principle remains applicable and whether comity is still respected. Comity rests upon trust in foreign jurisdictions and recognising the legitimacy of other sovereigns,[15] therefore, the British courts’ retention of jurisdiction undermines this understanding and trust while compromising underlying doctrines. Moreover, conflict of laws is intended to be an allocative exercise, ensuring a case is heard in the most appropriate forum. In grounding jurisdiction on a moral evaluation, essentially evaluating the adequacy of a foreign legal system by reference to the court’s own standards of justice, risks modifying the discipline into an adjudicative exercise. However, this logic would be inconsistent with the fact that private international law is procedural and not intended to emulate a trial. Therefore, in pursuit of practical justice, the courts risk undermining the doctrinal architecture of private international law, founded on territorial sovereignty and comity, principles that once legitimised the exercise of jurisdiction beyond borders.
4. Functional Justice and the Limits of Extraterritorial Remedies
The Appeal of English Courts: Justifying Extraterritorial Jurisdiction
It is necessary to recognise the appeal of the English courts. English law has long been internationally popular, particularly in commercial matters. It provides a stable, predictable, and transparent framework for contracting parties to conduct business and resolve disputes. The common law’s reliance on precedent ensures neutrality and consistency, while preserving parties’ autonomy to define their own terms. Transnational litigation before English courts may therefore be justified on the premise that, in some instances, it represents the only viable route to justice for claimants from jurisdictions where access to justice is limited. Retaining jurisdiction in such cases can prevent corporate impunity in cross-border supply chains and incentivise responsible business conduct.[16] Limbu v Dyson demonstrates that multinationals cannot avoid liability by relying on weaker regulatory or judicial systems simply because the harm occurred abroad.[17] By imposing jurisdictional accountability, English courts arguably encourage proactive compliance, transparency, and due diligence in global supply chains, while discouraging strategic forum avoidance.[18]
The Limits of Extraterritorial Remedies
Despite the strength of the English courts, I challenge the English courts’ exercise of extraterritorial jurisdiction on the basis that justice can be served in England, as justice would be most effectively administered in the home state. The site of adjudication determines whether justice can be fully realised; monetary compensation alone cannot substitute for remedies that require enforcement, systemic reform, or engagement with affected communities. Such remedies require authority that the English courts lack over foreign entities, so they can only be effectively administered in the home state.[19] Therefore, I contend that this trend in jurisdiction has the potential to prevent the most effective remedies. The case KM & 9 others v Attorney General & 7 others [2020] KEELC 1680 (KLR),[20] illustrates the capacity of the courts in the Global South to implement remedies with a lasting impact. The case concerned various government agencies and private companies leasing land to Metal Refinery (EPZ) Limited, the 7th respondent, resulting in the construction of a lead acid battery recycling factory. The factory, operational since 2007, lacked proper wastewater management infrastructure and emitted hazardous fumes from its industrial chimneys resulting in 20 deaths in the village of Owino-Uhuru. What was significant was the extent of the claimants’ remedies. The awarded sum totalled 1.3 billion Kenyan shillings, or 13 million USD, along with an order requiring the cleanup of soil, water, and waste contamination within four months. Since the case was heard in the local forum, the courts were able to pursue more impactful remedies, restoring the environment, protecting public health and holding institutional actors to account. In cases affecting local communities, this scope of justice, exercised by the state concerned, ensures a meaningful impact and makes such an award necessary. It is unlikely that a foreign court could enforce a similar cleanup mandate.[21] The court’s four-month order requiring the respondents to clean up soil, water, and waste contamination was impactful because, unlike monetary compensation, it addressed the root causes of harm. By directly remediating environmental hazards and safeguarding public health, the remedy extended beyond the individual claimants to improve living conditions and protect the broader community over time.
Moreover, in its evaluation, the court drew upon several international treaties, including the Rio Declaration and the Universal Declaration of Human Rights, delineating the obligations of both state and private actors. The court concluded that both the government and the private respondents failed in their duty to prevent environmental harm and take necessary precautions as mandated by domestic and international law.[22] These cases show the impact of local courts to compel compliance from the government with respect to its state obligations. The type of remedies embedded in local systems can have a lasting effect, unlike mere private settlements, which often fail to address the issue at hand.
Another reason why English courts exercising jurisdiction in the above-mentioned cases would have limited impact is because many disputes concerned public issues affecting broad communities. In Vedanta, it related to damage caused by mines, while in Limbu, it concerned alleged forced labour claims in Malaysia. These matters are not private issues; they affect the interests of communities within a state and the government in which the harm occurred. Given the importance of these issues, the most effective remedies cannot be achieved through damages alone but require more forceful measures, the power to compel compliance, which can only be implemented by the home state. In Vedanta, although the English courts retained jurisdiction, the parties ultimately chose to resolve the dispute privately, with Vedanta never admitting fault.[23]
While these types of cases formally fall within private law, their scope is much wider. Ignoring this scope would undermine progress in allowing these disputes to be heard in foreign courts, or, arguably worse, to be resolved privately. Individual claimants may achieve some measure of justice, but long-term, systemic justice is not realised. The KLR case represents a forward-looking decision which, if followed more widely, could contribute to sustainable conservation and environmental management. Extraterritorial jurisdiction cannot deliver the same enduring justice, despite claims that it is pragmatic. Where remedies require systemic reform, government action, or site-specific enforcement, functional justice demands adjudication in the forum closest to the harm. Foreign jurisdiction may provide partial relief, but long-term impact and real justice are achieved locally.
5. Extraterritorial Jurisdiction and the Reproduction of Legal Imperialism
Having established that this trend in litigation is doctrinally incoherent with the justifications of private international law and fails to deliver the most effective justice, I argue that it also entrenches structural inequalities reminiscent of the colonial era. By undermining territorial sovereignty, it echoes imperialist practices through which Western powers historically dominated foreign jurisdictions as part of their colonial endeavours.
Historical Roots: Extraterritoriality as an Imperialist Tool
The problematic nature of the trend following Limbu is best understood as situated in the domain of colonialism. Through demonstrating that conflict of laws has historically been utilised to legitimise and further facilitate colonial endeavours, I contend that these cases are harmful in the way they re-entrench and reiterate these structural inequities between states in the Global South in comparison to the North. Historically, extraterritorial jurisdiction was used as an imperialist tool by Western powers. In 1842, the Foreign Jurisdiction Act was enacted establishing the legal basis of extraterritoriality by extending British legal authority into the Ottoman Empire.[24] By 1895, 32 British courts operated in the Ottoman Empire, twenty-six British, eighteen American, and eighteen French courts dotted China’s ports and cities. Furthermore, Western extraterritorial courts, not local courts, had jurisdiction over Westerners in Japan (1856–1899), the Ottoman Empire/Turkey (1825–1923), and China (1842–1943). Despite the fact that China was not a formal colony, this extension of jurisdiction enabled it to become what was regarded as a ‘semicolonie’.[25] Although the Ottoman Empire had not been conquered or colonised, the British government could extend its laws into the Empire as if it had been, further facilitating their colonial endeavours. Through this practice, the authority and capacity of the local authorities were undermined, suppressing indigenous legal systems through the implementation and enforcement of British norms and legal practice.[26] Therefore, extraterritoriality established a legal hierarchy in which European law was presumed superior, rendering non-Western courts legally and epistemically subordinate.
The trend in case law mimics broader patterns in which extraterritorial jurisdiction fosters impunity. Extraterritoriality not only undermined the local authority but the foreign individuals simultaneously. This is demonstrated by the Normanton case in October 1886 where a storm caught the British freighter Normanton off the coast of Oshima Island, Japan, whereupon the freighter hit a rock and sank. All the Japanese passengers drowned, but the British officers and crew took the two lifeboats and survived.[27] In the subsequent legal action, the British extraterritorial court, Her Britannic Majesty’s Court at Hyogo, Japan acquitted the crew of any misconduct, even though similar cases involving European passengers frequently resulted in convictions for murder or manslaughter. Although the captain of the freighter was eventually sentenced to three months’ imprisonment,[28] this outcome was still unsatisfactory. The acquittal of the rest of the British crew reveals how the Western colonial agenda operated to protect imperial subjects from accountability and, in this sense, reinforces the hierarchy: Western powers could exert jurisdiction over foreign nationals, endanger lives on foreign territory, and evade penalisation. The fact that similar cases with European passengers often resulted in charges of murder reinforces the fundamental inequities between the Western and non-Western powers. It is resemblant of the fact that non-Western states were clearly subordinate to the Western powers and their authority and status were undermined, and in this case, the practice of conflict of laws and the exertion of jurisdiction operated to enable this ideological understanding. In this sense, the acquittal of the British crew in Normanton exposes the function of conflict of laws as a vehicle for the subjugation of colonial subjects, revealing that what was presented as ‘law’ was, in practice, a tool of imperial control.
Scholars have highlighted that this practice is reminiscent of imperialist tendencies. Grietje Baars,[29] for instance, highlights that transnational corporate accountability represents only a cosmetic change, reinforcing rather than challenging structural inequalities. Others, such as Sara Seck,[30] have defended transnational litigation while acknowledging and investigating these structural injustices. In Vedanta, Judge Coulson of the Queen’s Bench Division noted: ‘I am conscious that some of the foregoing paragraphs could be seen as a criticism of the Zambian legal system. I might even be accused of colonial condescension.’[31] Thus, it is essential that these issues are addressed. Establishing the colonial backdrop illustrates the imperial undertones present currently. In Vedanta, the Attorney General of the Republic of Zambia intervened to argue that the claimants could obtain substantial justice in Zambia against the Zambian subsidiary of a multinational enterprise headquartered in the UK.[32] Despite this, the English courts still retained jurisdiction. By disregarding a government official’s statement regarding the capacity of the court to hear the case, it comparably compromised the authority of Zambian officials to regulate and exercise authority over their own citizens and business entities. Moreover, although the English courts determined they had the power to hear the case, it was settled, without admission of liability among Vedanta, KCM and the villagers. The villagers did receive an undisclosed compensation, and it has been noted that Vedanta have been providing safe and clean water to communities around the mine; however, this hardly constitutes the ‘justice’ that the English courts claimed could not be achieved in Zambia. Substantive justice requires accountability and acknowledgement of wrongdoing in order to encourage widespread change, not solely for the villagers impacted by Vedanta but other individuals victim to corporate failures. A private settlement with no admission of liability merely compensates individuals without addressing the broader injustice, the unequal power relations and corporate impunity that allows such harm to occur; financial redress cannot equate to justice. Vedanta clearly evidences that the practices of the West are shrouded in imperialistic tendencies which are evidently problematic.
Global South Consent in Transnational Cases
Scholars such as Palombo, have rejected the conception that extraterritoriality of jurisdiction is a form of legal imperialism.[33] Palombo cites the Bhopal case, where more than 40 tons of methyl isocyanate gas leaked from a pesticide plant in Bhopal, India, immediately killing at least 3,800 people, causing significant morbidity and premature death for many thousands more.[34] In response, India adopted the Bhopal Gas Leak Disaster (Processing Claims) Act for the Government of India to represent numerous Indian claimants in US courts against the Union Carbide Corporation. Thus, Palombo contended that developing countries not only often support claimants filing complaints against companies incorporated in Western states, but they also encourage Western courts to accept jurisdiction over transnational abuses committed within their territories.[35]
However, state consent does not equate to an inexistence of imperialist practices. Rather, it solidifies structural inequalities on the basis that a nation feels compelled to outsource its legal authority to foreign powers despite the widespread harm to its population. The mere fact that developing countries accept transnational litigation does not erase the structural power asymmetries embedded in the global legal order. Consent by developing states does not necessarily signal genuine equality or shared norm-making. For issues deeply tied to a country’s social, environmental, and historical context, such as Bhopal, it is normatively preferable, and consistent with self-determination, that domestic courts retain jurisdiction. Judge Keenan’s judgment corroborates the argument that state consent cannot be a justification for these practices. Judge Keenan rightfully acknowledged that to ‘retain litigation would be yet another example of imperialism’,[36] noting the value of India exerting jurisdiction on significant matters pertaining to its population. The Bhopal case substantiates the fact that judiciaries in the Global South must take authorisation on their own legal matters. It is essential that states in the Global South exercise jurisdiction in order to fully develop and assert independence.
More widely, this practice exhibits a tendency to view the Western standards and practices as ‘universal’ and their jurisdiction as ultimate. Not only does this re-entrench structural inequities in states by consistently undermining the judicial authority of states in the Global South, but it also functions as an externalisation of legal imperialism. Accordingly, conflict of laws must refrain from such practices, which subconsciously reinvigorate imperialistic tendencies.
6. Reform: A ‘less colonial’ Path to Transnational Justice
Having outlined the key issues with the English courts’ growing willingness to retain jurisdiction in ways that compromise territorial sovereignty and comity, fail to provide the most effective justice, and reinforce structural inequalities reminiscent of imperialism, I contend that these problems can be mitigated through judicial cooperation. Having established that the English courts increasingly retain jurisdiction in transnational cases, the question arises as to where jurisdiction ought to lie. It is true that many courts in the Global South face barriers to access to justice, such as underfunding and limited institutional capacity;[37] these cases must nonetheless be heard somewhere. I argue that it is necessary to strengthen the judiciaries of the Global South to ensure their independence and capacity, consistent with the broader objective of decolonising transnational litigation. Greater judicial cooperation represents an interim measure that could facilitate the transition towards a decolonial approach, reducing dependence on the Global North. Enhanced cooperation between states would not only strengthen transnational legal ties but also enable justice to be delivered by the courts of the state in which the harm occurred.
Pursuing a ‘less colonial’ approach to judicial cooperation can rightly recalibrate the structural inequalities between states. Sandrine Brachotte’s ‘less colonial’ approach to private international law rejects the imposition of a single worldview originating in Europe onto the entire world.[38] To approach the subject from a ‘less colonial’ perspective, it is necessary to create a multicultural epistemology that allows equal voices to all forms of legal and normative inquiry. Similarly, Michaels underlines how the Global North is frequently criticised for imposing its own contingent normative order on the Global South under the claim that this order is universal.[39] In reality, this imposed order prevails not because it is universal, but because the Global North has the power to enforce it, while the South is too weak to resist. The response is not a reversal, in which Global Southern orders are made universal and then imposed on the North.[40] These conceptions rightly emphasise the importance of maintaining plurality and the need to delink normative orders, so that each system can exercise relative independence. Applying this conception to jurisdictional rules, this principle implies that Global South states should be able to adjudicate disputes arising within their territory without undue reliance on or deference to Western courts or procedural norms. Going beyond a ‘less colonial’ approach, what is required is the recognition of these structural limitations and the fostering of mechanisms such as judicial cooperation or the strengthening of local procedural capacity, which allow Global South judiciaries to exercise authority over cases affecting their communities. Rejecting Western universality is insufficient; local courts must be empowered to adjudicate independently.
Mutual Legal Assistance as a Civil Law Framework
A decolonial theory could be advanced through judicial cooperation by extending initiatives such as Mutual Legal Assistance (MLA) to international and civil law contexts, rather than limiting them predominantly to criminal matters. This would encompass transnational cases with significant impacts on communities or citizens, including environmental harm, labour abuses, or corporate misconduct by a parent company abroad. MLA is a powerful tool used by law enforcement agencies to investigate transnational crime, employed when voluntary procedures and police cooperation are insufficient and a domestic prosecutor lacks jurisdiction to obtain the evidence.[41] Judicial cooperation would allow the state where harm occurred to request assistance to enforce orders against parent companies, obtain documentation, or access technical expertise, through the use of experienced English-domiciled lawyers assisting claimants in the natural forum. This would operate through a cross-border legal aid scheme, modelled on the EU Legal Aid Directive between signatories (England and Wales and Global South states), ensuring that financial barriers are overcome. Moreover, an agreement on the recognition and enforcement of judgments against Western companies would ensure practical results; for example, English courts would enforce orders made by the natural forum against English-domiciled defendants. Judicial cooperation would gradually reduce reliance on Northern courts and build the capacity of Global South judiciaries to manage complex transnational disputes.
However, MLA enables countries to exercise powers across borders, which can be coercive and open to abuse as MLA enables countries to use their law enforcement powers across international borders.[42] It therefore requires clear procedural safeguards, independent review, and limits on the scope of requests. These concerns mainly apply to criminal cases, where MLA powers such as search, seizure, or asset confiscation can be abused. In civil cases, these powers do not apply. MLA within the civil law domain would be limited to providing evidence, legal representation, and procedural assistance, which greatly reduces the risk of misuse. The focus should be on genuine cooperation rather than foreign control. Taking the facts of Vedanta, instead of the English courts assuming jurisdiction, English courts could provide legal representation and assistance to the claimants in this complex transnational case, while Zambia retains jurisdiction as the natural forum. In this way, England acts in a supportive role without controlling the proceedings and its sole reasons for accepting jurisdiction, access to suitable legal representatives is addressed. This approach allows Zambian courts to implement effective remedies that, rather than being limited to monetary compensation, address the environmental harm at issue. By retaining jurisdiction, Zambia strengthens its territorial sovereignty and prevents the emergence of imperialist tendencies. Applying MLA to civil law cases would allow the natural forum to retain authority, ensuring that external actors act solely in a supportive role and thereby addressing the concerns raised in earlier sections regarding the English courts’ growing willingness to assume jurisdiction.
Judicial cooperation alone cannot resolve the underlying challenges. While it can assist Global South judiciaries by offering technical expertise or supporting transnational civil cases, it cannot substitute genuine judicial independence. Courts in the Global South must retain authority to adjudicate disputes affecting their communities without deferring to Western courts or norms. Private international law cannot fully resolve these challenges, but as shown, it can be used strategically to alleviate some of the inequities created by the current trend in extraterritorial jurisdiction and to lay the groundwork for a more decolonial and balanced system of transnational justice.
7. Conclusion
Overall, this piece has argued that the current trend of English courts showing a willingness to take jurisdiction over cases with tenuous connections is detrimental. As discussed above, the consequences are threefold. First, it compromises the doctrine of territorial sovereignty on which conflict of laws is built. Second, it assumes that English courts are better placed to deliver justice, when in fact the most effective justice is achieved in the home forum. Third, it reinforces structural inequalities reminiscent of Western imperialist tendencies.
To address these issues and move towards a decolonial approach to jurisdictional rules in conflict of laws, I propose the application of mutual legal assistance to civil law cases. This would strengthen judicial cooperation, allowing cases to be heard and justice delivered within the home state, while retaining jurisdiction there, thereby preserving territorial sovereignty and avoiding imperialist practices. Judicial cooperation, however, is not a complete solution, as many issues regarding access to justice in Global South states extend beyond private international law. It is therefore essential to bolster the independence of domestic judiciaries in the Global South, ensuring they are capable of handling complex transnational litigation effectively and autonomously, without compromising sovereignty.
[1] Limbu & Others v Dyson Technology Limited & Others [2024] EWCA Civ 1564
[2] Spiliada Maritime Corporation v Cansulex Limited [1987] 1 AC 460 (HL) 478
[3] Spiliada (n 2)
[4] Vedanta Resources PLC and another v Lungowe and others [2019] UKSC 20
[5] Oliveira da Silva & Ors v Brazil Iron Ltd & Anor [2025] EWHC 606 (KB)
[6] Limbu [67] (n 1)
[7] Ernest G Lorenzen, ‘Huber’s De Conflictu Legum’ (1919) 13 Illinois Law Review 375, 403
[8] Friedrich Carl von Savigny, A Treatise on the Conflict of Laws and the Limits of their Operation in Respect of Place and Time(William Guthrie tr, 2nd edn, Stevens & Sons 1880) 68, 133, 140
[9] Joseph H Beale, ‘Review of Albert Venn Dicey, A Digest of the Law of England with Reference to the Conflict of Laws’ (1896) 10 Harvard Law Review 168
[10] Alex Mills, ‘Justifying and Challenging Territoriality in Private International Law’ in Roxana Banu, Michael Green and Ralf Michaels (eds), Philosophical Foundations of Private International Law (Oxford University Press, forthcoming 2023)
[11] See generally eg Peter D Szigeti, ‘The Illusion of Territorial Jurisdiction’ (2017) 52 Texas International Law Journal 369 (noting this trend, but questioning its claims); Daniel Bethlehem, ‘The End of Geography: The Changing Nature of the International System and the Challenge to International Law’ (2014) 25 European Journal of International Law 9; Gunther Handl, Joachim Zekoll and Peer Zumbansen, Beyond Territoriality: Transnational Legal Authority in an Age of Globalization (Brill Nijhoff 2012); Thomas Friedman, The World Is Flat (Farrar, Straus and Giroux 2005); Bertrand Badie, La Fin des territoires (Fayard 1995)
[12] Ernest G Lorenzen, ‘Huber’s De Conflictu Legum’ (1919) 13 Illinois Law Review 375, 403
[13] T Schultz and J Mitchenson, ‘Rediscovering the Principle of Comity in English Private International Law’ (2018) 26 European Review of Private Law 311
[14] Adrian Briggs, Civil Jurisdiction and Judgments (4th edn, Oxford University Press 2005) 422–423
[15] Eversheds Sutherland, ‘London Calling: The Strategic Edge of English Law in International Disputes’ (Eversheds Sutherland) https://www.eversheds-sutherland.com/en/global/insights/london-calling-the-strategic-edge-of-english-law-in-international-disputesaccessed 17 January 2025
[16] Limbu & Others v Dyson Technology Limited & Others [2024] EWCA Civ 1564 [34], [36], [38], [40], [63], [76]
[17] Meeran R, ‘Perspectives on the Development and Significance of Tort Litigation against Multinational Parent Companies’ in Human Rights Litigation against Multinationals in Practice (2021) 24
[18] Richard Frimpong Oppong, ‘SDG 6: Clean Water and Sanitation’ in R Michaels, V Ruiz Abou-Nigm and H van Loon (eds), The Private Side of Transforming our World (Intersentia 2021) 189–216, 210
[19] KM & 9 Ors v Attorney General & 7 Ors [2020] KEELC 1680 (KLR)
[20] Frimpong Oppong 210
[21] KM & 9 Ors v Attorney General & 7 Ors [2020] KEELC 1680 (KLR) [160]
[22] Leigh day, ‘ Legal claim by more than 2,500 Zambian villagers in a case against Vedanta Resources Limited’ (Leigh Day, 19 January 2021) <https://www.leighday.co.uk/news/cases-and-testimonials/cases/vedanta/> accessed 17 January 2026
[23] Kayaoğlu, Legal Imperialism: Sovereignty and Extraterritoriality in Japan, the Ottoman Empire, and China (Cambridge University Press 2010) 1–16
[24] Ibid.
[25] Ibid.
[26] Chang (1984: 81–98)
[27] J Shen, ‘Not Only Territorial Waters But Also Free Sea: Contested Coastal Jurisdiction in the Ravenna–Chishima Case (1892–1895)’ (2024) 42 Law and History Review 915
[28] G Baars, ‘“It’s Not Me, It’s the Corporation”: The Value of Corporate Accountability in the Global Political Economy’ (2016) 4 London Review of International Law 127
[29] Sara L Seck, ‘Unilateral Home State Regulation: Imperialism or Tool for Subaltern Resistance?’ (2008) 46 Osgoode Hall Law Journal 565
[30] Vedanta [97] (n 5)
[31] Vedanta Resources PLC and another v Lungowe and others [2019] UKSC 20 [92]–[99]
[32] D Palombo, ‘Transnational Business and Human Rights Litigation: An Imperialist Project?’ (2022) 22 Human Rights Law Review 1
[33] Ibid.
[34] Ibid.
[35] In Re Union Carbon Corp Gas Plant Disaster (n 20) 867
[36] M Arnone, Carlo Drago and Angelo Leogrande, ‘When Justice Lags: Civic Engagement, Deprivation, and Institutional Performance’ (2025) Preprints
[37] Sandrine Brachotte, ‘When European State Courts Face Post-Colonial Legality: A Private International Law Approach Inspired by Decolonial Theory’ (2024) 72 Buffalo Law Review
[38] Ralf Michaels, ‘Private International Law and the Legal Pluriverse’ in Roxana Banu, Michael S Green and Ralf Michaels (eds), Philosophical Foundations of Private International Law (Oxford University Press 2024) 258–277.
[39] Ibid.
[40] Kingsley Napley, ‘Mutual Legal Assistance in Action – Met Police Raid London Addresses at Request of Brazilian Authorities’ (Kingsley Napley, 21 May 2020) https://www.kingsleynapley.co.uk/insights/blogs/criminal-law-blog/mutual-legal-assistance-in-action-met-police-raid-london-addresses-at-request-of-brazilian-authorities accessed 17 January 2025
[41] Peters and Peters, ‘The Hidden World of Mutual Legal Assistance’ (Peters and Peters, 18 October 2021 https://www.petersandpeters.com/2021/10/18/the-hidden-world-of-mutual-legal-assistance/ accessed 17 January 2025
Kitan Oyetunde
LLB (LSE) ’27 and Notes Editor of the LSE Law Review 2025-26