Friday, May 18, 2018

Supreme Court Holds Foreign Corporations Cannot Be Held Liable Under Alien Tort Statute

Long time readers of this blog know I have followed the cases on the Alien Tort Statute for some time.  For my posts on this topic, go here and scroll down.

But for those new to the subject, here is a very short update:  Back in 2012, the Supreme Court heard oral argument in a case called Kiobel v. Royal Dutch Petroleum which challenged the applicability of the Alien Tort Statute to corporate defendants. However, after that issue was argued before the Supreme Court, the Court asked the parties to brief and prepare for argument on a different issue: whether the ATS can be applied extraterritorially. This was surprising since the issue had not been raised by the parties because, before the Supreme Court brought it up, there probably was little disagreement about that question.  Yet, the Court expressed more interest in that question and eventually decided the case based on it.   Again, go to the link above and scroll down for a lot more information and links.

So the original issue presented by Kiobel was left undecided until the Court agreed to hear Jesner v. Arab Bank which asked the court to address it.  For a short explanation of the issues in the case go here.

And so, a few weeks ago, the Court finally issued its decision in which it holds that foreign corporations can not be held liable in American courts under the Alien Torts Statue.  NPR has the news here.

In a dissenting opinion joined by Justices Ruth Bader Ginsburg, Stephen G. Breyer and Elena Kagan, Justice Sonia Sotomayor said the court’s decision absolves corporations for responsibility under the law for “conscience-shocking behavior” and that she disagreed “both with the court’s conclusion and its analytic approach.”

You can read the (very long) opinion here.

Needless to say, the opinion has generated quite a bit of commentary.  Here are links to articles from different perspectives:

The SCotUS blog has an analysis of the opinion here.

Politico has an article here there argues, among other things, that "[t]he ruling appears to be a part of a pro-corporate pattern when it comes to the court’s view of its global role..."

Conservative think tank Washington Legal Foundation has a comment here in which it implies that the case was a wasted opportunity to go even further. It sees the opinion as part of a good trend that attempts to rein in human rights activists’ efforts to police private businesses’ overseas conduct but laments that the Court "once again failed to shut the door entirely on human rights activists" because the ruling said nothing about the many ATS claims pending against American corporations.

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