Remarks by Richard Herz
Herz, Richard, Proceedings of the Annual Meeting-American Society of International Law
The issues raised in Kiobel are surely in keeping with the Annual Meeting's theme of complexity. Indeed, I know that earlier in the week another entire conference was devoted to addressing these issues. Thankfully though, the specific issue that Chimene has asked me to address allows me to avoid most of the complexity.
That question is "Why sue corporations at all?" Or, to put it another way, "How much does the corporate liability aspect of Kiobel really matter?" The answer is that it matters a lot, but not necessarily as much or for the reasons that one might at first assume.
When the Supreme Court granted certiorari in Kiobel, the only issue was whether a corporation can be a defendant under the ATS. Under existing case law, there is no question that the ATS allows victims of egregious human rights abuses to sue individual corporate officers, and that they may also sue both corporate officials and corporations themselves under state law. Now that the Supreme Court has expanded the issues it will consider to include the scope of the extraterritorial application of the ATS, it is not clear that individual officers will remain subject to suit in cases arising abroad. Corporations and corporate officers will presumably remain subject to state law actions, unless the Court issues a ruling so broad that it eviscerates the transitory tort doctrine.
But assuming some mechanism for suing corporate officers and corporations will survive Kiobel, what then is the import of corporate claims under the ATS?
ATS cases are often brought simply for the opportunity to tell the truth. Most ATS cases involve people who have suffered abuses due to a lack of the rule of law, and who were often victimized again by being forced to remain silent. For them, it is deeply meaningful to bring those responsible before the law, to present evidence that the unspeakable actually happened, and to receive a judgment from a neutral arbiter. Litigation--validation--is its own reward.
In that context, the ability to sue corporations is critically important, because in many corporate cases, the abuses were specifically committed to promote corporate interests. Consider, for example, Doe v. Unocal, a case in which I was privileged to serve as counsel for the plaintiffs and perhaps the first corporate ATS case to garner significant attention. There, a California oil company, in conjunction with its French partner TOTAL, decided to build a natural gas pipeline across a narrow strip of Burma. Before they began, they were told by human rights advocates and their own consultants that if they went forward with the project, the Burmese military would commit serious human rights abuses in the region. Undeterred, they used the Burmese military for security and to build pipeline infrastructure, and not surprisingly, the military committed murder, rape, and other torture, and forced villagers to work under horrendous conditions for the benefit of the project.
To tell the truth in cases like Unocal, it is not sufficient to sue individual corporate officers, because the abuses were caused by the acts and decisions of the corporation. …