USA: Supreme Court to decide whether corporations can be sued over complicity in human rights abuses abroad
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Author: Beth Van Schaack, Stanford University, in Just Security
...I summarize, Justice-by-Justice, some of the key issues raised by Supreme Court and the responses of the parties’ lawyers and the United States government as amicus curiae.
...Justice Samuel Alito focused in on the norm-identification process long established by Sosa v. Alvarez-Machain, which requires courts to consider whether the plaintiff has alleged an established rule of international law.
...Justice Neil Gorsuch was quite fixated on a 2011 law review article suggesting that the ATS was drafted in order to address situations in which the defendant hails from the United States...
...Justice Anthony Kennedy stayed focused on the core question: does Sosa require plaintiffs to show that international law affirmatively recognizes a cause of action against corporations for international law violations?
...Justice Stephen Breyer reasoned that Sosa and the treaties address both persons and entities.
Oral arguments in Jesner v. Arab bank: Supreme Court may favor two steps to corporate liability for human rights violations
Author: William Dodge, University of California, on Just Security
...At oral argument, the Justices seemed to be looking at the question in two steps: (1) whether customary international law permits corporate liability; and (2) assuming it does, whether the ATS cause of action should be interpreted to permit corporate liability.
...[T]he key question at step one of the ATS analysis is whether the customary international law norms that are actionable under the ATS distinguish between natural persons and corporations...none of these norms do.
At the second step in the analysis, some of the Justices expressed concern about the foreign relations implications of holding corporations liable for human rights violations.
...The concerns expressed at oral argument by the more conservative Justices have little to do with corporate liability...
...the particular norm of customary international law must apply to a corporation before a corporation may be sued under the ATS for violating that norm... all of the norms actionable under the ATS do apply to corporations.
Author: US Supreme Court
Author: Amol Mehra, International Corporate Accountability Roundtable (ICAR)
Today, the Supreme Court of the United States (SCOTUS) will have to decide whether corporations, which have a number of rights, also have responsibilities. On October 11, 2017, SCOTUS will hear oral arguments in Jesner v. Arab Bank, PLC. The case raises the question of whether corporations can be held liable under the Alien Tort Statute (ATS), which permits non-Americans to sue for violations of international law…
… Corporations influence all aspects of society and are increasingly granted extensive rights that enable them to effectively operate as citizens…
The underlying principles of corporate law, as well as preventing a double standard and the public interest, likewise require that corporations be held liable for their abuses…
With rights come responsibilities. SCOTUS, through its own decisions, has grown both the role and power of corporations in modern society. At the very least, it must now enforce the clear, established rules for their behavior. Fairness and justice require that SCOTUS uphold the laws that permit the public to hold corporations accountable. It must not foreclose corporate liability under the ATS.
Author: Lawrence Hurley, Reuters (UK)
Conservative U.S. Supreme Court justices... signaled concern about allowing companies to be sued under American law for human rights abuses abroad...
...Chief Justice John Roberts and Justice Samuel Alito, both conservatives, indicated that U.S. foreign policy tensions that could arise from such cases would be a reason to curb corporate liability. Conservative Justice Anthony Kennedy, who often casts the deciding vote in big cases, also appeared sympathetic to the bank’s arguments.
Their remarks during an hour of arguments in the case raised the possibility that the court, with a 5-4 conservative majority, could rule in favor of the Jordan-based bank in the lawsuit seeking to hold it financially liable for the Islamist attacks.
The court’s four liberals indicated that corporations should not be immune. Even if the court ruled in favor of the roughly 6,000 plaintiffs suing the bank, the lawsuit could still be dismissed on other grounds once it returns to lower courts.
...A ruling is due by the end of June.
Jesner v. Arab Bank: The Supreme Court Should Not Miss the Opportunity to Clarify the “Touch and Concern” Test
Author: John Bellinger & Andy Wang, Arnold & Porter Kaye Scholer LLP, on Lawfare Blog (USA)
In Kiobel v. Royal Dutch Petroleum, the Supreme Court held that the Alien Tort Statute (ATS) is presumed not to apply to conduct on the territory of another country unless the plaintiff’s claims “touch and concern” the United States with sufficient force to overcome that presumption…Although Jesner primarily raises the issue of corporate liability under the ATS (left unresolved in Kiobel), it gives the court an opportunity to clarify the touch and concern standard. In this post, we review the pending ATS cases, the arguments advanced by the plaintiffs and defendants over “touch and concern” in the lower courts, and how they may arise in Jesner…
Author: Kimberly Robinson, Bloomberg Bureau of National Affairs
The U.S. Supreme Court agreed in 2011 to decide if corporations can be liable for supporting human rights violations under the Alien Tort Statute in Kiobel v. Royal Dutch Petroleum. But a high court change of heart left that issue unresolved.
The question of corporate liability is back before the justices and will be argued October 11 in Jesner v. Arab Bank.
Bloomberg BNA’s Kimberly Robinson and Patrick Gregory discuss what’s at issue, the statutory revolution behind the lawsuit, and where the Supreme Court is likely to land in this podcast.
International Legal Personality of Corporations: How Investment Law Answers the Supreme Court Question in Jesner
Author: Tara Van Ho, Aarhus University’s Department of Law, on Just Security
In Jesner v. Arab Bank, the US Supreme Court must decide a single question: can corporations violate international law? Answering this question first requires identifying the extent to which corporations are international actors with a distinct legal personality. In the discussions surrounding Jesner, there has been little analysis of the approach towards corporate personality in international investment law (IIL)...IIL delineates international rights and responsibilities for corporations, which, as a matter of public international law, are distinct from their shareholders. IIL also grants corporations independence from their home and host states, and allows corporations to enforce their rights through international tribunals. As such, corporations meet the elements of international legal personality in IIL. This suggests that the appropriate question is not whether corporations can violate international law, but only which obligations they have...
I first establish that IIL recognizes a clear international legal personality for corporations. I then consider the implications of this personality, concluding that corporations can have both explicit and implicit rights and obligations under international law...
Author: John M. Eubanks, Motley Rice LLC (Petitioners’ Counsel in Jesner v. Arab Bank)
Imagine a situation where an international bank with a presence in Manhattan holds accounts for known terrorists and serves as the end-payor to beneficiaries of a fund created for the explicit purpose of supporting an armed uprising typified by suicide bombings and indiscriminate killing of civilians carried out by known terrorist organizations with whom the bank’s accountholders are directly affiliated. Then, picture this international bank being immune from lawsuits filed by the victims of these suicide bombings and indiscriminate killings solely on the basis of its corporate form. This is precisely the issue with which the Supreme Court will grapple in Jesner v. Arab Bank, to be argued before the Court on October 11, 2017.
Jesner addresses the same question that was raised in Kiobel v. Royal Dutch Petroleum Co. during the October Term 2011. That question is whether the Alien Tort Statute (ATS), creates a categorical bar to corporate liability for violations of the law of nations, or customary international law…
…The language of the ATS does not explicitly exempt corporations. In fact, the text of the statute…specifically lays out who can sue (“an alien”), but it provides no limitation for who can be sued.
…[W]here a corporation engages in conduct that it knows will facilitate violations of the law of nations such as terrorism, crimes against humanity, or even genocide, can that corporation be held liable under the ATS to the victims of those violations? The answer is a simple “yes” based on the statutory text and common law’s interpretation of tort liability, and it is up to the Supreme Court to make this determination.
Author: EarthRights International & International Corporate Accountability Roundtable (ICAR)
Today, the Supreme Court of the United States (SCOTUS) begins its fall session. On the docket is Jesner v. Arab Bank, PLC, which is scheduled to be heard on October 11. The case will determine whether the Alien Tort Statute (ATS) can provide an avenue to deliver justice to victims of corporate harms. The ATS permits non-Americans to sue for international human rights abuses and is key to holding corporations accountable...
We cannot stand by as the Court, following in the footsteps of Citizens United, recognizes more and more corporate rights, without likewise acknowledging corporate responsibilities and choosing #PeopleOverProfits...
“Where corporations are involved in human rights abuses, they must be held accountable. To deny victims access to justice is unfair and results in corporate impunity,” said Amol Mehra, Executive Director of ICAR...
Katie Redford, ERI’s Co-Founder and Director, highlighted the case’s importance for the environment. “If corporations cannot be sued when they create widespread environmental damage, then it will be left to governments to finance the clean-up. It raises the question of what kind of society we want. Do we want to live in a world where corporations can get away with murder and destruction, while it is left to ordinary citizens to pick up the pieces?”