From Tort to Statute and Back: The Interplay of Legal Models in Rights-Based Corporate Climate Litigation and the Rise of a Vigilance Gap Litigation

Efforts to hold transnational corporations legally accountable for their contribution to the climate crisis are intensifying globally, leading to a new wave of strategic litigation. Initial corporate climate litigation, primarily based on tort law, failed due to insurmountable challenges in proving causation and redressability. While a rights turn in climate litigation had gained traction in cases against states, its application to private corporations remained a significant legal frontier until the landmark Milieudefensie v. Shell case marked a turning point, successfully transposing this human rights-based paradigm to the private sector. Despite this, the central legal problem remains how to forge a binding pathway that transforms corporate responsibility into specific, science-based emissions reduction targets enforceable in national courts. This paper’s central thesis identifies and analyzes two distinct models of strategic litigation that have emerged to fill this gap. The first model, pioneered in the landmark Shell case, establishes a novel form of tort liability by using human rights to give substantive content to general duties of care in domestic tort law. A primary contribution of this article is the comparative analysis of this model’s global circulation, tracing its specific adaptations and judicial outcomes across different legal traditions, from New Zealand to Germany. The second model, which this paper identifies and terms “Vigilance Gap Litigation”, is an emerging legal strategy that represents a pivotal evolution: it shifts the legal challenge from proving climate harm to demonstrating a company’s breach of its statutory human rights due diligence obligations, a strategy currently confined to France but poised for European expansion via the CSDDD.