Some thoughts on the regulatory use of tort law in a corporate context
This paper is the draft version of Hans De Wulf's contribution to the now already published Liber Amicorum Xavier Dieux. It is a very essayistic text, as is allowed in a Festschrift. In it, Hans De Wulf argues that tort law is being transformed from a mechanism to award damages into a regulatory tool that can be used by judges to create new rules that they then enforce against corporations (always at the request of a plaintiff, of course). This development is only possible because some - the Dutch legal system is a primary example - have transformed the concept of negligence from a standard, i.e. a yardstick to measure and judge behaviour, into a duty to at all times behave with due care, and have allowed private plaintiffs who have not suffered any damage (let alone even argued about causality), but who have at best been exposed to a risk, to enforce this new-found duty.
Hans De Wulf argues the first instance decision in the Dutch climate litigation against Shell is an illustration of the excesses to which this can lead; I argue this Dutch court decision would in Belgium be incompatible with our statutory provisions on tort law, and would be unconstitutional because it violates the separation of powers by creating and allocating a new subjective right on the basis of a political balancing of interests which the court misleadingly tries to present as the mere application or enforcement of a pre-existing human right (right to life which entails right to a climate that does not heat up too much).
In the contribution Hans De Wulf also offers some (again, essayistic) thoughts on the ideal distribution of liability between companies on the one hand and their directors and managers on the other. Hans De Wulf discusses the circularity problem and whether it can be solved by concentrating liability exclusively on directors/managers instead of on the corporation. This seems to be necessary if one seriously thinks tort law and enforcement in general can have preventive(prophylactic, ex ante) behavioral effects, an idea for which there seems to be, however, little empirical proof.