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Tuesday, April 16, 2013

Crazy Talk on Kiobel

Last week I began arguing that the ATS, despite its significance to human rights law, may not have done as much to deter corporate misconduct as we might have liked.  This week, I’m going to show you a U.S. statute that has succeeded mightily in this regard, though we don’t yet talk about it as much as we should.

I want to suggest that the principal U.S. statute which deters overseas human rights violations by corporations is not the ATS at all.  It’s the Foreign Corrupt Practices Act.

Inconceivable!  The FCPA, you’ll say, is about bribing customs inspectors and other frivolity; it has nothing to do with genocide and torture and the other rights violations we’ve sought to protect through the ATS.  And besides, why would we describe the FCPA as more effective?

So it seems I have to convince you of three things.  First, I need to establish that bribery actually violates a right -- that it's note merely associated with, or a contributing factor to, rights violations.  Second, I need to show that the right to be free from bribery and related forms of corruption is among the very most important rights that we should prevent corporations from violating (or aiding in the violation thereof); that it may be as important as the more egregious rights violations we often associate with the ATS, if not more so.  Finally, I'll have to explain why the FCPA is more effective in altering overseas corporate conduct than the ATS has been or likely ever will be.  More to the point, it may indeed be as close as we've come to a well-crafted statute of extraterritorial application.  

I gave it a shot here, and I'll try again here, starting tomorrow with the first.

Posted by Andy Spalding on April 16, 2013 at 09:47 AM | Permalink

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