Remarks on the GJIL Symposium on Corporate Responsibility and the Alien Tort Statute

Article excerpt

I. OVERVIEW

Early in the Supreme Court oral arguments in Kiobel v. Royal Dutch Petroleum Co., (1) Justice Kennedy alerted the plaintiffs' lawyer that, for him, "the case turns on this: ... '[n]o other nation in the world permits its court[s] to exercise universal civil jurisdiction over alleged extraterritorial human rights abuses to which the nation has no connection." (2) That statement, in which Justice Kennedy quoted from a defendant's amicus brief, is true when taken literally. It is misleading, however, inasmuch as it fails to take into account that analogous actions are allowed in the civil law world of Continental Europe when one transcends a literal understanding, as required when transposing meaning from one legal system onto another. Universal jurisdiction for jus cogens violations has found a footing in the criminal, but not civil, law of civilian states for reasons tied to deep systemic attributes not shared by the U.S. legal order.

The Second Circuit in Kiobel might have been hesitant to immunize corporations from liability under international law had it been more familiar with the outlook of the civil law world that not only separates criminal from tort law, but that through a long history has constructed innumerable associations and connections in each of those two areas of law that U.S. legal, historical, social and political associations and connections do not replicate. The differences which separate criminal and tort law emerge principally from their different treatment of public and private (here, criminal and tort) law, and not--as the Second Circuit majority concluded in Kiobel--from their treatment of juridical and natural persons.

The Continental European countries of Western Europe are in a period of legal transition. The law of the European Union is maturing and its legal actors, from lawyers to judges, are increasingly aware of each others' legal systems, as well as the legal practices of the United States. The tort lawsuit has not been integrated into civilian law as a remedy for grave violations of human rights, but civilian litigants have knocked at that door, and on occasion European courts have allowed it to open.

Most recently, a court in The Hague granted a civil recovery of one million Euros to a Palestinian physician who sued the Libyan government for torture he suffered at the hands of Colonel Moammar Gadhafi's regime in Libya. (3) Other cases in civilian systems have met with initial success, only to be reversed on appeal. (4) Such cases are particularly illuminating for the common law lawyer, as they illustrate those attributes that carry legal significance in civilian systems, and why.

II. FOREIGN LAW MATTERS

A Ninth Circuit judge described the current state of judicial opinions--to which one might add secondary literature--on the question of corporate responsibility under the Alien Tort Statute (ATS) (5) as "a plethora of opinions that cannot agree on what 'the law of nations' prohibits." (6) A striking amount of formalism and deductive reasoning characterizes the analysis, to a degree unusual in common law legal reasoning. The tight, Cartesian style of logical rigor has not, however, prevented the proliferation of an array of differing approaches and solutions. In a role reversal, recent civil law commentary on the ATS has tended to be more normative than formalistic.

The ATS creates a peculiar encounter with foreign law that goes beyond the conflict issues of whether to opt for foreign law applicability, and the challenge of applying a foreign state's law. It requires consideration of foreign legal concepts concurrently and in intertwined fashion with U.S. legal concepts. Accomplishing this feat involves scrutinizing legal conclusions lest they result from unwarranted U.S. legal projections, and therefore constitute "illusions of validity." (7) It also suggests that the categories being used to delineate analysis in circuit court opinions are porous. …

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