Remarks on the GJIL Symposium on Corporate Responsibility and the Alien Tort Statute
Flowers, Jodi Westbrook, Georgetown Journal of International Law
So long as they incorporate (or act in the form of a trust), businesses will now be free to trade in or exploit slaves, employ mercenary armies to do dirty work for despots, perform genocides or operate torture prisons for a despot's political opponents, or engage in piracy--all without civil liability to victims. (1)
The determination of whether corporations may be held liable under the Alien Tort Statute (ATS) (2) for violations of the law of nations or treaties of the United States represents an important question amidst ongoing corporate globalization efforts and the artificial line being drawn between natural persons and juridical persons globally. The precise issue of corporate liability was argued before the Supreme Court on February 28, 2012 in Kiobel v. Royal Dutch Petroleum Co., (3) and there is currently a wide split among the Circuits on this issue with the Second Circuit holding in Kiobel that corporations cannot be liable under the ATS (4) while the Seventh, (5) Ninth, (6) Eleventh, (7) and D.C. Circuits hold that they can be liable. (8)
As a practitioner on behalf of plaintiffs in a number of ATS cases, I advocate that corporations--like individuals--as private actors bear a responsibility to abide by norms of customary international law both in the United States and abroad, and the ATS provides civil tort liability for a failure to do so. While corporations argue, inter alia, that ATS litigation is merely an extortion tool used by trial lawyers against corporations to elicit settlements, the facts do not bear this out. These cases are lengthy, costly to bring, and subject to a full range of robust defenses, including personal jurisdiction and heightened pleading standards under Twombly (9) and Iqbal. (10)
As a result of these and other very real limitations, the notion that frivolous lawsuits are flooding the court system is simply not accurate. Further, corporations argue that corporate immunity is necessary in these cases because international criminal tribunals have not allowed corporate liability in the past. Again, this refrain is contrary to established precedent while also missing a textual point that separates the ATS from an international criminal tribunal--the ATS specifically addresses civil liability for torts. My comments will address how corporations should be held liable under the ATS notwithstanding the chorus of corporations who argue otherwise.
I. A BRIEF HISTORY OF THE ALIEN TORT STATUTE
The ATS in its entirety reads, "[t]he district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States." (11) The ATS's inclusion in the Judiciary Act of 1789 permitted "foreign plaintiffs a dispassionate federal forum in which to plead serious torts violating the law of nations and treaty obligations" where such a "dispassionate" forum might not be found in the various States. (12) In 2004, the U.S. Supreme Court--addressing an ATS issue on its merits for the first time--determined that the ATS "was intended as jurisdictional in the sense of addressing the power of the courts to entertain cases concerned with a certain subject." (13) Notwithstanding its finding that the ATS was a jurisdiction-conferring statute, the Court nevertheless held that "[t]here is too much in the historical record to believe that Congress would have enacted the ATS only to leave it lying fallow indefinitely." (14) Upon its passage, the ATS encompassed claims for a subset of violations of the law of nations, specifically: "offenses against ambassadors ... ; violations of safe conduct were probably understood to be actionable ..., and individual actions arising out of prize captures and piracy may well have also been contemplated." (15) The Court held that "courts should require any claim based on the present-day law of nations to rest on a norm of international character accepted by the civilized world and defined with a specificity comparable to the features of the [eighteenth]-century paradigms we have recognized. …