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Remarks by Beth Stephens
Published online by Cambridge University Press: 31 December 2019
Extract
Mechanisms to hold corporations liable for human rights abuses are usually grossly inadequate. All too often, local remedies are not available because the host government and legal system are inadequate or captured by corporate interests. The subsidiary directly responsible for the abuses may not have the funds to provide an adequate remedy, and the parent corporation may not be subject to the jurisdiction of local courts. As a result, victims and survivors of abuses have attempted to follow corporate actors to their home states, through human rights litigation in U.S. and European courts. Although such litigation flourished in U.S. courts for two decades, recent Supreme Court decisions have slashed the number of U.S. human rights cases.
- Type
- Fourth Annual Detlev F. Vagts Roundtable on Transnational Law: Corporate Liability for Human Rights Violations after Jesner v. Arab Bank
- Information
- Copyright
- Copyright © 2019 by The American Society of International Law
References
1 The Torture Victim Protection Act (TVPA), 28 U.S.C. § 1350 (note), authorizes claims against individual defendants for torture and extrajudicial execution, but the TVPA does not permit claims against corporate defendants.
2 28 U.S.C. § 1350.
3 Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108, 124–25 (2013).
4 Jesner v. Arab Bank, PLC, 138 S. Ct. 1386 (2018).
5 See Daimler AG v. Bauman, 571 U.S. 117 (2014) (holding corporation can be sued only where events giving rise to claim arose or where corporation is at “home”—generally, where incorporated or principal place of business).
6 Adhikari v. Kellogg Brown & Root, Inc., 845 F.3d 184, 194–95 (5th Cir. 2017); Mastafa v. Chevron Corp., 770 F.3d 170, 185 (2d Cir. 2014).
7 Mastafa, supra note 6, 770 F.3d at 185. The Second Circuit, however, has held that ATS claims cannot be brought against any corporate defendants. See Licci by Licci v. Lebanese Canadian Bank, SAL, 834 F.3d 201, 219 (2d Cir. 2016).
8 Doe v. Nestle, 906 F.3d 1120, 1125 (2018).
9 Doe v. Drummond Co., 782 F.3d 576, 597–98 (11th Cir. 2015).
10 See, e.g., Al Shimari v. CACI Premier Tech., Inc., 758 F.3d 516, 528–29 (4th Cir. 2014)) (requiring fact-based analysis that considers defendant's citizenship and connections between acts committed in the United States and the violations); Nestle, supra note 8, 906 F.3d at 1125–26 (upholding claim where violations were “perpetuated” from headquarters in the United States); Drummond, supra note 9, 782 F.3d at 592–601 (considering factors such as focus of claim, location of relevant conduct, defendant's citizenship and impact on U.S. national interests).
11 18 U.S.C. § 1595.
12 See Alexandra F. Levy, Federal Human Trafficking Civil Litigation: 15 Years of the Private Right of Action (2018), Hum. Trafficking Legal Ctr., available at http://www.htlegalcenter.org/sdm_downloads/federal-human-trafficking-civil-litigation-15-years-of-the-private-right-of-action.
13 See, e.g., Jam v. Int'l Fin. Corp., 139 S. Ct. 759 (2019) (denying IFC absolute immunity in case alleging negligence, nuisance, trespass, and breach of contract); Acuna-Atalaya v. Newmont Mining Corporation, No. 18-2042, 2019 WL 1294350 (4th Cir. Mar. 20, 2019) (vacating district court's forum non conveniens dismissal, in case alleging multiple state law claims, including battery, assault, intentional infliction of emotional distress, and negligence).
14 Guiding Principles on Business and Human Rights, UN Doc. A/HRC/17/31 (Mar. 21, 2011).