Banyan is disappointed by the Kiobel decision but still sees glimmer of hope for victims of
corporate abuse
Banyan
is disappointed that the US Supreme Court chose to reject the plaintiffs'
appeal in Kiobel. The decision is troubling, making it more difficult
for victims of human rights abuses - including war crimes and torture - to seek
redress. Yet the decision has raised as many questions as it has left
unanswered, and is in no way a grant of immunity to corporations who aid or
abet such abuses.
Here
is what we know:
1)
The court rejected the plaintiffs' appeal unanimously
2)
All nine justices did not rule out corporations being the subject of Alien
Torts Statute ("ATS") lawsuits
3)
The main opinion argued that we should presume that the ATS does not apply
outside the US. However, this presumption can be overcome when "the claims
touch and concern the territory of the United States... with sufficient
force"
4)
This opinion also argued that this principle should be extended to
corporations. Mere corporate presence in the US does not suffice, and something
more is required.
5)
Four of the justices separately argued that showing some connection between the
case and the US should be the threshold, requiring no presumption against
application outside the US
Simply
put, corporations can still be sued, and can still be held liable for aiding
and abetting human rights abuses.
The
threshold that plaintiffs now have to meet requires some significant connection
to the US.
There
is still a great deal that we don't know, including:
1)
Whether the relevant connection is between the US and the act of abuse; or
whether it is between the US and the act, victim or perpetrator of abuse. The
main opinion implies that the connection could be between the US and the act,
victim or perpetrator
2)
What the threshold is to show a sufficient connection in each case
Justice
Kennedy's separate opinion seems to envisage these questions being clarified
through further lawsuits - another indication that companies cannot take this
decision as a grant of immunity.
At
Banyan, we are proud of the work that our team did to support the amicus
curiae and the plaintiffs in arguing that corporations can be sued and that the ATS
should apply extraterritorially. Our research came up in oral argument and was
dealt with in the judgment itself. We look forward to mobilising more SOAS
postgraduates to provide research on corporate accountability, be it supporting
further such litigation; or engaging with legislative and policy processes at
the national and global levels.
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