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Tuesday, April 09, 2013

Corporate Liability for Human Rights Violations: You Say Goodbye, and I Say Hello

It’s great to be back on the Blawg (and apologies for the delayed start).  Now, let me try the seemingly impossible:  to say something new about Kiobel.  I actually think I can do it.

Let’s imagine a survey of the general counsels of Fortune 1000 companies with transnational interests.  I’m not talking about the Fortune Ten, I’m talking the Fortune Ten-Hundred.  Let’s say we asked them to quantify, on a scale of 1 to 10, their level of anxiety about being held liable under the ATS, and the level of company resources they’re devoting to compliance.  

What do you suppose the answers would look like?  Be honest now.

Whether the now-ridiculously-delayed Supreme Court opinion in Kiobel addresses extraterritorial application or corporate liability, almost everyone expects a significant restriction of corporate liability for extraterritorial rights violations.  And most of us who believe that promoting human rights through international business is a good thing are feeling rather blue.  But at the risk of offending a whole lot of people, I’m going to suggest that the ATS, while significant in a great number of ways, was never the reliable mechanism for deterring corporate overseas violations that we hoped or imagined it to be.  Though the ATS has galvanized the academy, the courts, and human rights activists, it never quite instilled fear in the corporate sector.  The responses to our survey, on a scale of 1 to 10, would likely hover somewhere around 1 for the vast majority of those companies.   

What, then, is the status of corporate liability for human rights violations in the post-Kiobel world?  I’m going to argue in successive posts that such liability is alive and well, that it never really hinged on the ATS at all, that rumors of its death are greatly exaggerated.  

I don’t know why you say goodbye, I say hello.



Posted by Andy Spalding on April 9, 2013 at 01:09 PM | Permalink


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