Post by Anupam Chander on Aug 31, 2013 10:13:21 GMT 4
Unshackling Foreign Corporations: Kiobel’s Unexpected Legacy
Anupam Chander
University of California, Davis - School of Law
July 1, 2013
107 AM. J. INT’L L., 2013, Forthcoming
UC Davis Legal Studies Research Paper No. 342 see: papers.ssrn.com/sol3/papers.cfm?abstract_id=2297048
Abstract:
Kiobel v. Royal Dutch Petroleum disfavors American corporations. While largely unshackling foreign corporations from the risk of being haled before an American court to answer for human rights abuses abroad, the decision keeps American corporations constrained by human rights law. This is because application of the Alien Tort Statute, as announced in Kiobel, turns on whether a corporation’s actions “touch and concern” the United States. American corporations are simply far more likely to satisfy that standard than foreign corporations.
The argument proceeds as follows. First, this paper shows that American corporations are, for practical purposes, still bound by human rights law, enforceable in U.S. courts. Second, it demonstrates that foreign corporations, however, are largely freed by Kiobel from similar obligations enforceable in U.S. courts. After describing this differential treatment and why it matters, the paper concludes by delineating possible ways to resolve Kiobel’s asymmetrical effects. Perhaps most promisingly, Congress could level the playing field by declaring the Alien Tort Statute to have extraterritorial effect, against foreign and domestic concern alike.