International Terrorism and the Formal Emergence of Corporate Interplay on the International Playing Field: Alien Tort Statute and International Corporate Liability

This post is written by Associate Editor Charles Stone. Opinions and views expressed herein are those of the writer alone.

With the preeminence of corporations and their ability to act in the international community, there is a push to hold corporate entities liable for “their” actions. The test case before the Supreme Court involves the several alien individuals who were injured, kidnapped, or killed by terrorists in attacks against Israeli citizens overseas. The surviving aliens and families of the deceased have pointed the finger at Arab Bank, PLC whom allegedly funded and facilitated various terrorist organizations who were involved in the attacks. The claims were brought under the Alien Tort Statute (ATS) in the New York Federal Court. This issue is now before the Court because the opinion in Kiobel did not address the question of Corporate Liability.[1] The facts referenced above arise from the consolidation of five lawsuits, all filed in the Eastern District of New York.[2]

On Wednesday October 11, 2017, the Supreme Court heard oral arguments in Jesner v. Arab Bank. This case involves the use of the ATS, and seeks to answer whether the statute “categorically forecloses corporate liability.[3] The text of the statute is only one sentence, and has been used to allow non-U.S. Citizens to sue others in U.S. Federal Courts.[4]

There were many questions that were contemplated during the oral arguments, as the decision will inevitably have far reaching ramifications and will incite further litigation dealing with the nuances of the law. Among these arguments were:

  1. Whether holding corporations liable would increase foreign entanglement issues.
  2. Whether holding corporations liable would increase friction with other states.
  3. What the the reasons for the ATS are, why it was enacted, and is other statutes available that would allow a plaintiff to prevail on a claim that would not require the increased scope of the ATS.
  4. The date it was enacted prompted textualist questions during the oral argument that questioned whether or not corporate liability was hypothesized in 1789, and whether it is/should be recognized today.

The Statute was enacted in in Section 9 of the Judiciary Act of 1789 and provides that “[t]he district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.”[5] This Act was enacted in order to allow redress for a French Diplomat who was left without a remedy under the law.[6] Since this time, the Act has been contemplated in many different situations,[7] but the question as to corporate liability has yet to be addressed.

While the arguments and law in this area are dense and well-developed by the parties, a cursory point which was added in Footnote 11 of Appendix C of the petition, aligned with a question that I was curious about.[8] With the:

idea that corporations are ‘persons’ with duties, liabilities, and rights has a long history in American domestic substantive law. See e.g., N.Y. Cent. & Hudson River R.R. Co. V. United States, 212 U.S. 481, 492 (1909) (rejecting the argument that, “owing to the nature and character of its organization and the extent of its power and authority, a corporation cannot commit a crime”). See generally Leonard Orland, Corporate Criminal Liability § 2.03-2.04 (2006) (discussing the policy behind, and history of, corporate criminal liability). It is an idea that continues to evolve in complex and unexpected ways. See, e.g., Citizens United v. Fed. Election Comm’n, 558 U.S. 50 (2010). The history of corporate rights and obligations under domestic law is, however, entirely irrelevant to the issue before us – namely, the treatment of corporations as a matter of customary international law.[9]

My concern is how it would be reconcilable to hold that a corporation would not be considered liable under the ATS when in Citizens United the Court expressed that it had “rejected the argument that political speech of corporations or other associations should be treated differently under the First Amendment simply because such associations are not ‘natural persons’’; essentially treating a corporation as a person.[10] How can a corporation have a dual personality that allows it to have all the benefits and few of the drawbacks of a natural person? It seems they have solved the age-old proverb, that you can have your cake, and eat it too.

It will be curious to see the outcome of this highly contested case with enormous ramifications. The Supreme Court will ultimately decide whether corporations may be forcefully dragged into U.S. Federal Courts from around the globe to answer for “their” transgressions, and formally emerge as players on the international field; or, if corporations will continue to be shrouded and afforded protections against liability. The oral arguments did not shed light on the direction that all of the Justices were leaning. Corporations around the world collectively hold their breath.

[1] Kiobel v. Royal Dutch Petroleum Co., 133 S.Ct. 1659 (2013).

[2] Jesner v. Arab Bank, PLC, No. 06-CV-3869; Almog v. Arab Bank, PLC, No 04-CV-5564; Afriate-Kurtzer v. Arab Bank, PLC, No. 05-CV-0388; Lev v. Arab Bank, PLC, No. 08-CV-3251; and Agurenko v. Arab Bank, PLC, No. 10-CV-0626.

[3] Petition for Writ of Certiorari at i, Jesner v. Arab Bank, PLC., 2016 WL 6069100 (2nd Cir. 2016) (No. 16-499).

[4] 28 U.S.C. § 1350

[5] Id.

[6] Kiobel, 569 U.S. at 120.

[7] Id. at 121

[8] Petition for Writ of Certiorari at 71a, Jesner v. Arab Bank, PLC., 2016 WL 6069100 (2nd Cir. 2016) (No. 16-499) (attaching opinion from Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111 (2nd Cir. 2010)).

[9] Id.

[10] Citizens United v. Federal Election Commission, 558 U.S. 310, 343 (2010).

Author: nkylrev

The Northern Kentucky Law Review, founded in 1973, is an independent journal, edited and published entirely by the students of NKU Chase College of Law.

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