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Suffolk Transnational Law Review
Symposium 2010
Lead Article
WILL THE REAL ATS PLEASE STAND UP?
Judith Chomsky
Copyright (c) 2010 Suffolk University; Judith Chomsky
I. Introduction
In many impoverished and remote areas of the world, multinational corporations enter into joint ventures and
other commercial arrangements with governments that have poor human rights records. Then, protected by their
government partners, the corporations engage in business practices far below the standards expected in the
West. Both the multinationals and their host government partners focus solely on maximizing the profits of their joint
venture with little concern for the operational effects borne by the local population or environment. The activities of
the corporations in the developing world frequently contradict the codes of conduct that they publicly espouse. Host
governments lack incentives to enforce any existing regulatory systems that might reduce profits. The host communities lack the power and opportunity to oppose these practices. All too frequently the partner governments are ready
to use unrestrained force to suppress criticism and protect the corporate operations in which they have an interest.
Legal developments in the United States, however, provide a framework through which the most egregious
human rights violations by multinational corporations may be addressed. For example, in a 1997 case, Doe v. Unocal,
[FN1] the U.S. District Court for the Central District of California determined that under the Alien Tort Claims Act (
ATS), a U.S.-based energy company engaged in a joint pipeline project with Burmese government officials could be
held accountable for forced labor and other human rights abuses committed while advancing the project. [FN2]
From the landmark decision in Unocal to present ATS cases against corporate defendants, spokespersons for the
business community have warned the litigation would have negative consequences for the competitive position of
U.S. business, as well as on the global economy as a whole. The U.S. government frequently joins in the protests
against corporate ATS cases, arguing that they impair the government's response to the “war on terror.” Some foreign
governments also complain about what they consider challenges to their sovereignty. This essay explores the gap
between such predictions regarding the effects of the ATS litigation and its demonstrable consequences.
II. A Brief Overview of the Modern Development of Corporate ATS Cases [FN3]
The human rights cases filed against corporate defendants are part of a developing ATS jurisprudence. The ATS
is a one- sentence statute enacted as part of the Judiciary Act of 1789 that provides federal court jurisdiction for tort
claims brought by aliens for violations of customary international law and treaties. [FN4] In the late 1970's, in Filartiga
v. Pena-Irala [FN5], lawyers from the Center for Constitutional Rights used the largely-forgotten ATS to sue a former
Paraguayan police officer for torturing a Paraguayan citizen to death. In that case, the Second Circuit held that the
ATS authorized claims for violation of international human rights. [FN6] The Filartiga case laid the foundation on
which the Unocal decision rests.
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Two more legal advances were necessary to support the litigation against corporate defendants involved in human
rights violations under the ATS. The defendant in Filartiga was the direct perpetrator of torture. Human rights claims
against corporations, however, rarely allege that the corporate defendant engaged directly in the human rights abuses.
[FN7] Because most ATS claims against corporate officials are based on their complicity in the direct human rights
violations of a third party, the possibility of vicarious liability under the ATS was a necessary element for the majority
of ATS corporate cases. The possibility for vicarious liability under the ATS was recognized in a series of cases
against the former dictator of the Philippines, Ferdinand Marcos, and his daughter. [FN8]
The Second Circuit decision in Kadic v. Karadzic [FN9] provided the final prepatory step necessary to corporate
ATS cases. Kadic held that the ATS grants jurisdiction over private actors when they commit violations of customary
international law norms, which do not require state action, such as genocide and war crimes. [FN10] Kadic also held
that a private actor may be liable for violations of norms such as torture, which require state action, if the private actor
performs in concert with state actors. [FN11] Taken together, the Marcos cases and Kadic supplied the remaining
principles upon which most corporate ATS cases rest. Liability for a corporate defendant may be vicarious in nature
and a private corporation may be liable for violating norms requiring state action when it acts in concert with a state
actor.
III. The Evolution of ATS Corporate Litigation
The Unocal case was the first corporate accountability lawsuit in which a court analyzed corporate liability
under the ATS. [FN12] The Unocal plaintiffs, Burmese villagers, alleged that they were subjected to extrajudicial
killing, forced labor, rape, and other forms of torture in connection with Unocal's construction of a gas pipeline
through their region. The plaintiffs alleged that Unocal was liable for their damages because, inter alia, Unocal and its
joint venture partners, the French oil firm Total and the Burmese state-owned Myanmar Oil and Gas Enterprise
(MOGE), hired the Burmese military to provide security and other logistical support for the pipeline with knowledge
that the military had a long record of violent human rights abuses. [FN13] In a companion case, NCGUB v. Unocal,
[FN14] the court considered the basis of corporate liability and found, “[i]n the typical action under the ATS against
a non-state actor, courts look to the standards developed under 42 U.S.C. § 1983 to determine whether the claim will
stand.” [FN15]
The issue of vicarious liability under the ATS, and particularly corporate liability, continues to be very controversial and intensely litigated. [FN16] Even when corporate liability is not raised in a case, business groups are
eager to have the issue addressed by the Supreme Court and find a way to bring in the issue. When the Supreme Court
considered an ATS claim challenging arbitrary detention in Sosa v. Alvarez-Machain, [FN17] neither party was a
corporate entity. Nevertheless, many amici were focused on the issue of corporate liability. [FN18] Present litigation
involving a single corporation continues to attract amici from both sides of the issue of corporate liability.
IV. The Reaction of the Business Community and a Bit of Reality
Since the Unocal decision, the business community has been ringing the alarm against ATS corporate cases,
charging that the litigation will harm both U.S. business interests and the prospects of development for poorer nations.
One analysis expressed this concern in very dramatic language, stating:
For almost 200 years the ATS slept. It is now an awakening monster. Unless checked by Congress or the
Supreme Court, trial lawyers will seek to expand the scope of ATS awards to such an extent that investment and
trade in developing countries will be seriously threatened. The ultimate loser will be millions of impoverished
people denied an opportunity to participate in the global economy. [FN19]
Yet another commentator wrote: “[t]he growing role of U.S. courts in defining standards of corporate conduct in
the global economy represents a direct challenge to U.S. foreign policy leadership.” [FN20] The Bush administration
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joined its voice in opposition to ATS corporate litigation with similar claims about the negative impact. The U.S. State
Department submitted a letter to the district court supporting the corporate defendant Exxon Mobil in a case against its
conduct in Indonesia's Aceh province. [FN21] The letter stated ‘the Department of State believes that adjudication of
this lawsuit at this time would in fact risk a potentially serious adverse impact on significant interests of the United
States, including interests related directly to the on-going struggle against international terrorism.‘ [FN22] The letter
predicted that the lawsuit might have a negative impact on Indonesia's economic recovery efforts because it could
discourage foreign investment. Further, the letter noted that an important aspect of U.S. foreign policy is to increase
opportunities for American business abroad and that adjudication in this case could ‘prejudice the Government of
Indonesia and Indonesian businesses against U.S. firms.‘ [FN23] Other critics identify the ATS corporate litigation as
part of a general growing tendency to expand U.S. legal power, reflected in “business claims under U.S. antitrust,
securities and racketeering laws and criminal prosecutions of foreign terrorists captured abroad.” [FN24]
The hyperbolic claims of the business community and the Bush administration are in sharp contrast to the record
of ATS litigation. To date, only three corporate ATS cases have entered into trial. In the first trial, the plaintiffs
prevailed on their ATS claim against a defendant corporation that operated a detention center for the INS in New
Jersey. [FN25] In the other ATS cases, defendant corporations accused of human rights violations abroad received
favorable jury verdicts. [FN26] There were approximately fifty ATS cases against corporate defendants between 1996
and 2008. [FN27] About two dozen cases against corporate defendants for conduct abroad are still pending. Four cases
have resulted in settlements. [FN28]
The fact that so few cases against corporate defendants have been successful is evidence that the predictions of
catastrophe are exaggerated. There is an absence of any evidence supporting the claims of the business community or
the Bush administration.
Professor Joseph Stiglitz, winner of the Nobel Prize in Economic Sciences in 2001 and the Nobel Peace Prize in
2007, in an amicus brief to the Second Circuit supporting the plaintiffs in the South African Apartheid cases, addressed the assertions of the critics of ATS corporate litigation. [FN29] He cited the other submissions that argued that
the pendency of the South African Apartheid litigation would deter growth and development in South Africa, deter
foreign investment in countries with troubled human rights records, and deter foreign trade; however, Stiglitz concluded that none of the submissions presented evidence that the potential for secondary liability under the ATS is
determinant of investment behavior. [FN30]
Stiglitz pointed to evidence that, in the period between 2007 and 2009 after the Second Circuit ruled that the ATS
South African Apartheid litigation was not to proceed, foreign direct investment in South Africa increased dramatically. [FN31] This would not have been the result if litigation were a deterrent. [FN32] Stiglitz concludes:
Moreover, investment is not an end in itself, but a means to growth which enhances the well-being of
citizens of the country. Codes of conduct and national and international law are designed to ensure that investments likely to have the opposite effects, whether because of adverse effects on the environment, health or
basic human rights, do not take place. Accountability will encourage both conduct and investments that are
consonant with national and international interests. [FN33]
In addition to exaggerated statements about the effects of ATS litigation, critics of ATS corporate litigation
mistakenly claim that mere business with governments with poor human rights records can form the basis for corporate liability under the ATS. Thomas Niles, then vice-chair of the Council for International Business, a
pro-business group, claimed that companies are “sued essentially for being in countries where human-rights violations
occur.” [FN34]
Attorney Jordan W. Cowman warned:
Is your business going to be the next ATS defendant? If your business is high profile and does business in
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the developing world, the safe answer is ‘yes.’ Increasingly, transnationals can be made to answer in the U.S.
for ‘aiding and abetting’ human rights violations by foreign governments, even where the transnational is engaged in ordinary, lawful commercial transactions. [FN35]
Despite such claims, no plaintiffs have survived a motion to dismiss on the theory that a corporate defendant can
be held liable simply for engaging in “ordinary commercial activity” in a country governed by a regime with a poor
human rights record. The district court judge in In re South African Apartheid Litigation underscored the difference
between those ATS claims that can survive a motion to dismiss as a result of violations of the law of nations and those
claims against companies that merely conducted business with countries with poor human rights records. [FN36] The
court held that “to survive [the] motion to dismiss, plaintiffs must plausibly allege that defendants ‘substantially
assisted’ violations of the law of nations and knew that their assistance would be substantial. Merely engaging in
commerce is insufficient.” [FN37]
Presently, there is a conflict between the Eleventh Circuit and the Second Circuit concerning the standard for
aiding and abetting liability. The Eleventh Circuit has determined that the proper mental element to be applied in such
cases is a defendant's knowledge that its practical assistance has a substantial effect on the commission of a human
rights violation. [FN38] The recent Second Circuit decision in Presbyterian Church of Sudan v. Talisman Energy
[FN39] held that the defendant must have provided substantial assistance with the purpose of facilitating the alleged
offense. [FN40] In the vacated Ninth Circuit decision in Doe v. Unocal Corp. (Doe II), [FN41] two members of the
judicial panel premised Unocal's liability under international law on the corporation's employment of the Myanmar
military to provide security and build infrastructure along a pipeline route. The court held that the Myanmarese military's use of forced labor with respect to the pipeline project was the specific act that violated the ATS. [FN42]
The claim that merely doing business may lead to ATS liability is without any foundation. Looking only at settled
ATS corporate cases, the alleged conduct is a far cry from ordinary commercial activity. In Doe v. Unocal Corp. (Doe
I), [FN43] the plaintiffs alleged that Unocal relied on Burmese army units to build a gas pipeline with the knowledge
that the military used forced labor and forced relocation of villagers in the course of construction. [FN44] The plaintiffs in Wiwa v. Royal Dutch Petroleum Co. [FN45] alleged that the Royal Dutch / Shell Group paid, transported, and
commended Nigerian soldiers who shot a woman peacefully protesting the destruction of her crops for Shell's pipeline, killed an innocent villager, and bribed witnesses to testify against Ken Saro-Wiwa in a case which led to his
execution along with eight others. [FN46] According to the complaint in the case against Yahoo, the corporation gave
the Chinese government information on the author of anonymous writings distributed to an internet mailing list that
allowed authorities to identify and arrest the author. [FN47] The complaint in Does I v. The Gap, Inc. alleged that
garment manufacturers in Saipan factories placed thousands of workers in involuntary servitude and knowingly
benefited from their forced labor. [FN48] Surely, even the ATS critics cannot reasonably continue to maintain that the
alleged conduct constitutes ordinary commercial activity or merely doing business in countries with poor human rights
records.
Beyond unsupported statements about the impact of ATS litigation and misstatements about the standard for
liability, the distorted view of ATS litigation extends to the attorneys who litigate against corporations under the ATS.
A 2007 article in USA Engage describes, in pejorative terms, the lawyers who bring ATS corporate cases and their
effect on the federal judicial system:
[a]s the era of asbestos and tobacco litigation bonanzas winds down, America's most aggressive contingency fee law firms have in place a fee structure in search of an investment strategy. Faced with shrinking
opportunities in the increasingly competitive domestic class action arena, these firms have gone global, lodging
massive foreign contingency fee class actions in U.S. courts. [FN49]
These charges are simply contrary to the facts. They ignore the key role that public interest law centers, such as
the Center for Constitutional Rights, Earthrights International, and the International Labor Rights Fund have played in
the developing ATS corporate litigation. As a result of the limited success of corporate ATS cases, with the exception
of litigation arising out the Second World War, it is unlikely that this litigation will attract practitioners looking for
massive contingency fees. ATS litigation is more likely to remain a field dominated by the public interest and pro
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bono bar.
V. The Effect of ATS Corporate Litigation
Despite the legal hurdles faced by plaintiffs in corporate ATS cases, ATS litigation has significant effects outside
of U.S. courts. ATS litigation in the United States is part of a global movement dealing with the general question of
corporate regulation in the global era and, more specifically, one that deals with the very meaning and scope of the
notion of corporate social responsibility. [FN50] The case against Unocal in the United States was followed by litigation in Belgium against Total, S.A., Unocal's partner in the Burma pipeline project. [FN51] In May 2008, four
Nigerians from the Niger Delta region, together with environmental groups, filed a lawsuit for environmental damages
against Shell in the district court of The Hague, Netherlands, where the company has its international headquarters.
[FN52]
Many multinational companies have adopted codes of conduct that include a promise of adherence to basic human
rights principles to combat ATS corporate litigation. [FN53] Corporations are encouraged to minimize exposure to
ATS by adopting a voluntary code of conduct that “incorporates applicable international laws and treaties and formalizes the company's commitment to supporting human rights.” [FN54] These voluntary codes of conduct, however,
are subject to much criticism. Oxfam International's May 2000 Submission to the Government's White Paper on
Globalization clearly expresses this critical view:
[a]t their best, voluntary codes of conduct can act as a guide to corporate practice and set standards for
others to follow . . . . At their worst, they are little more than a public relations exercise. But the deeper point is
that corporate behavior is too important for poverty reduction to be left in the field of voluntary codes and
standards defined by the corporate sector itself . . . . What is needed is a set of verifiable and enforceable
guidelines covering all aspects of corporate activity. [FN55]
The Global Compact with Corporations is a voluntary agreement launched in July 2000 by then U.N. Secretary
General Kofi Annan. The Global Compact concerns, among other things, adherence to human rights principles.
[FN56] Companies who have signed this voluntary agreement include those, like Shell and Rio Tinto, who have been
charged with complicity in human rights violations. [FN57] A number of non-government organizations also signed
as supporters of the Global Compact, including the International Confederation of Free Trade Unions, Amnesty International, Human Rights Watch, and Lawyers Committee for Human Rights. [FN58] A number of business associations also signed on as supporters including the International Chamber of Commerce and the World Business
Council on Sustainable Development. [FN59] There is, however, considerable criticism of the Global Compact focusing in large part on the absence of any verifiable enforcement mechanism. [FN60] Jean Ziegler, U.N. Special
Rapporteur on the right to food, expressed concern “because of the laxity of standards for prosecuting human rights
violations committed by transnational corporations.” [FN61] Ziegler stated, “we have to fight the Global Compact, not
only criticize it, because it is a public relations operation of the big multinational companies.‘ [FN62]
In August 2003, the United Nations began to develop an international standard on corporate responsibility. The
U.N. Sub-Commission on the Promotion and Protection of Human Rights unanimously approved the Norms on the
Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights
(Norms). [FN63] The Sub-Commission Norms provide that:
[s]tates have the primary responsibility to promote . . . and protect human rights recognized in international
as well as national law, including ensuring that transnational corporations and other business enterprises respect
human rights. Within their respective spheres of activity and influence, transnational corporations and other
business enterprises have the obligation to promote . . . and protect human rights recognized in international as
well as national law . . . . [FN64]
Professor David Weissbrodt of the University of Minnesota noted several important features in the development
of the U.N. sub-commission's norms. Without enforceable international norms, multinational corporations “have the
mobility and capacity to evade national laws and enforcement because they can relocate or use their political and
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economic clout to pressure governments to ignore corporate abuses.” [FN65] He concluded that the norms, which
supplement existing international standards, are significant because they apply to all companies rather than only those
that agree to participate and carry with them the imprimatur of the United Nations. [FN66]
In 2005, the U.N. Commission on Human Rights called for the appointment of a Special Representative to identify and clarify human rights standards of corporate responsibility and accountability for transnational corporations
and other business enterprises. [FN67] In 2008, the Special Representative, John Ruggie, issued the Report of the
Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and
other Business Enterprises. [FN68] His report references the ATS corporate cases and his analysis of the nature of
corporate liability is basically consistent with the jurisprudence developed in ATS litigation. [FN69] First, he concluded that knowingly providing a substantial contribution to human rights abuses could result in a company being
held accountable in both legal and non legal settings. [FN70] Second, being seen to benefit from abuse may attract the
attention of social actors even if it does not lead to legal liability. Third, and similarly, mere presence in contexts where
abuses are taking place may attract attention from other social actors, but is unlikely, by itself, to lead to legal liability.
In short, both operating in contexts where abuses occur and appearing to benefit from such abuses should serve as red
flags for companies to exercise due diligence consistent with the specific context of their operations.
The ATS provides for corporate accountability in a manner consistent with an emerging international consensus.
Moreover, as the Unocal case itself reveals, these principles of corporate accountability are found in U.S. state tort
law. [FN71] Even in the unlikely event that the federal courts ultimately conclude that the ATS does not permit suits
against corporations for secondary liability, there is, and will be, increasing pressure for legally-enforceable standards
compelling adherence to basic human rights.
[FN1]. 963 F. Supp. 880 (C.D. Cal. 1997).
[FN2]. Id. at 891 (finding allegations sufficient for subject-matter jurisdiction under Alien Tort Claims Act).
[FN3]. See generally Beth Stephen, Judith Chomsky, Jennifer Green, Paul Hoffman & Michael Ratner, International
Human Rights Litigation in U.S. Courts (2008) (discussing modern development of ATS jurisprudence).
[FN4]. See 28 U.S.C. § 1350 (2006). The district courts shall have original jurisdiction of any civil action by an alien
for tort only, committed in violation of the law of nations or a treaty of the United States. Id.
[FN5]. 630 F.2d 876 (2d Cir. 1980).
[FN6]. Id. at 887-88.
[FN7]. See Abdullahi v. Pfizer, Inc., 562 F.3d 163 (2d Cir. 2009) (alleging Pfizer violated international law by not
obtaining adequate patient consent for experimental drug use); Flores v. Southern Peru Copper Corp., 414 F.3d 233
(2d Cir. 2003) (alleging pollution from defendants' mining operations caused cancer).
[FN8]. Forti v. Suarez-Mason, 672 F. Supp. 1531 (N.D. Cal. 1987), on reconsideration 694 F. Supp. 707 (N.D. Cal.
1988); Hilao v. Estate of Marcos, 103 F.3d 789 (9th Cir. 1996); In re Estate of Marcos, 25 F.3d 1467 (9th Cir. 1994),
cert. denied, 513 U.S. 1126 (1995); Trajano v. Marcos, 978 F.2d 493 (9th Cir. 1992), cert. denied, 508 U.S. 972
(1993).
[FN9]. 70 F.3d 232 (2d Cir. 1995), cert. denied, 518 U.S. 1005 (1996).
[FN10]. Kadic, 70 F.3d at 241-42, 245.
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[FN11]. Id. at 245; Doe v. Unocal Corp., 963 F. Supp 880, 891 (C.D. Cal. 1997).
[FN12]. In 1994, a case was brought against Texaco under the ATS for environmental harms in Ecuador. Aguinda v.
Texaco, No. 93-7527, slip op. at 19-25 (S.D.N.Y. Apr. 11, 1994), dismissed sub nom, Jota v. Texaco, Inc., 157 F.3d
153 (2d Cir. 1998). The courts never reached the issue of corporate liability under the ATS. Id.
[FN13]. Unocal Corp., 963 F. Supp at 891.
[FN14]. 176 F.R.D. 329, 349 (C.D. Cal. 1997).
[FN15]. Id. at 345 (citing Kadic, 70 F.3d at 245).
[FN16]. See Church of Sudan v. Talisman Energy, Inc., 582 F.3d 244, 247 (2d Cir. 2009).
[FN17]. 542 U.S. 692 (2004).
[FN18]. See Brief for National Association of Manufacturers as Amici Curiae in Support of Reversal, Sosa v. Alvarez-Machain, 542 U.S. 692 (2004) (No. 03-0339), 2004 WL 199236 (noting suits against corporations generally not
based on ratified law); Brief for National Foreign Trade Council et al. as Amici Curiae Supporting Petitioners, Sosa,
542 U.S. 692 (No. 03-339), 2003 WL 22429204 (discussing need for concrete and uniform ATS interpretation); Brief
for Corporate Social Responsibility as Amici Curiae Supporting Respondents, Sosa, 542 U.S. 692 (No. 03-339), 2004
WL 398964 (suggesting previous and current ATS interpretations correct).
[FN19]. Gary C. Hufbauer & Nicholas K. Mitrokostas, Awakening Monster: The Alien Tort Statute of 1789 2 (2003).
[FN20]. Elliot J. Schrage, Judging Corporate Accountability, 42 Colum. J. Transnat'l L. 153, 153 (2003).
[FN21]. Letter from William H. Taft, Legal Advisor, Dept. of State, to Judge Louis F. Oberdorfer, U.S. District Court
for
D.C.
1
(Jul.
29,
2002),
available
at
http://ccrjustice.org/files/Doe%20v.%C20Exxon%20-%20US%20SOI%C20July% 202002.pdf.
[FN22]. Id. at 1.
[FN23]. Id. at 3-5.
[FN24]. William Glaberson, U.S. Courts Become Arbiters of Global Rights and Wrongs, N.Y. Times, June 21, 2001,
at A20.
[FN25]. Jama v. U.S.I.N.S., 343 F. Supp. 2d 338, 386 (D.N.J. 2004) (discussing court's conclusion). In Jama, the
plaintiffs were undocumented aliens detained in an INS facility pending determination of their asylum status. They
alleged inadequate living conditions, torture, beatings, and other mistreatment. Id. at 346.
[FN26]. Estate of Rodriguez v. Drummond Co., No. 7:02-00665 (N.D. Ala. July 26, 2007); Bowoto v. Chevron Corp.,
No. 99-02506, 2007 WL 2349341 (N.D. Cal. Aug. 14, 2007); see also Karen Gullo, Chevron Wins Verdict Against
Nigerian
Protestors
Over
Killings,
Bloomberg.com
(Dec.
2,
2008),
http://
www.bloomberg.com/apps/news?pid=20601116&sid=aoy1KIbB8IsA&refer=africa.
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[FN27]. See Beth Stephens, Judicial Deference and the Unreasonable Views of the Bush Administration, 33 Brook. J.
Int'l L. 773, 773 (2008) (detailing status of majority of ATS cases, including some claims against natural persons).
[FN28]. See Does v. Gap, Inc., No. 01-0031, 2003 WL 22997250 (D.N. Mar. I. Sept. 11, 2003); Doe v. Unocal Corp.,
403 F.3d 708 (9th Cir. 2005); Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88 (2d Cir. 2000); Xiaoning v. Yahoo
Inc., No. 07-02151 (N.D. Cal. June 29, 2007).
[FN29]. See Brief for Balintulo as Amici Curiae Supporting Petitioner, Alintulo v. Daimler (In re South African
Apartheid Litigation), 617 F. Supp. 2d (2009) [hereinafter Stiglitz Brief].
[FN30]. Id. at 4-5.
[FN31]. See Khulumani v. Barclay Nat'l Bank, Ltd., 504 F.3d 254, 260 (2d Cir. 2007) (holding plaintiff entitled to
plead aiding and abetting liability under Alien Tort Claims Act); Stiglitz Brief, supra note 29, at 9.
[FN32]. Stiglitz Brief, supra note 29, at 9.
[FN33]. Id. at 7.
[FN34]. Nathan Koppel, Arcane Law Brings Conflicts from Overseas to U.S. Courts, Wall St. J., Aug. 27, 2009.
[FN35]. Jordan W. Cowman, The Alien Tort Statute - Corporate Social Responsibility Takes On A New Meaning,
Metropolitan Corp. Couns., July 2009, at 30, available at http://www.metrocorpcounsel.com/pdf/2009/July/30.pdf.
[FN36]. See In re South African Apartheid Litig., 617 F. Supp. 2d 229, 284 (S.D.N.Y. 2009).
[FN37]. Id.
[FN38]. Aldana v. Del Monte Fresh Produce, 416 F.3d 1242, 1247-48 (11th Cir. 2005); Sinaltrainal v. Coca-Cola Co.,
578 F.3d 1252 (11th Cir. 2009); Romero v. Drummond 552 F.3d 1303 (11th Cir. 2008).
[FN39]. 582 F.3d 244, 247 (2d Cir. 2009).
[FN40]. Id. (establishing higher bar for corporate vicarious liability than in Eleventh Circuit).
[FN41]. 395 F.3d 932, 939 (9th Cir. 2002), rehearing en banc granted by, 395 F.3d 978 (9th Cir, 2002).
[FN42]. See id. at 939 (holding plaintiffs' allegations of forced labor sufficient for ATS violations). The third panel
member in Doe argued for the application of federal common law principles of joint liability, agency, and reckless
disregard in resolving the case. Id. at 966.
[FN43]. 110 F. Supp. 2d 1294, 1310 (C.D. Cal. 2000) (setting forth plaintiffs' allegations against Unocal).
[FN44]. Id. (holding oil company not liable under ATS for Myanmar government's use of forced labor).
[FN45]. 226 F.3d 88, 92-93 (2d Cir. 2000) (outlining allegations Shell “mitigated, orchestrated, planned” government
actions).
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[FN46]. Id. (outlining allegations against agents of Nigerian government).
[FN47]. Seconded Amended Complaint for Tort Damages at 14, Wang Xiaoning v. Yahoo! Inc., No. C07-02151 CW
(N.D. Cal. July 30, 2007) (alleging Chinese government relied on evidence supplied by Yahoo to arrest plaintiff).
[FN48]. Complaint for Damages and Injunctive Relief at 4, Does I v. The Gap, Inc., No. CV-01-0031, 2001 WL
1842389 (C.D. Cal. 1999).
[FN49]. Press Release, USA Engage, New Report Describes the Rising Tide of Global Alien Tort Cases (Feb.1, 2007),
http://www.usaengage.org/index.php? option=com_content&ask=view&id=96&item=59. USA Engage describes
itself as a coalition of businesses, agriculture groups and trade associations working to promote the benefits of U.S.
engagement abroad and educate the public on the harmful effects of unilateral U.S. sanctions. See also USA Engage,
Background & History, http://www.usaengage.org/index.php?option=com_ content&task=view&id=14&itemid=43
(last visited Apr. 7, 2010). USA Engage promotes responsible policies that advance American values and foreign
policy goals, such as U.S. diplomacy, humanitarian exchanges, and multilateral cooperation. Id.
[FN50]. Ronen Shamir, Between Self-Regulation and the Alien Tort Claims Act: On the Contested Concept of Corporate Social Responsibility, 38 Law & Soc'y Rev. 635, 635-64 (2004).
[FN51]. John Litchfield, French Oil Firm Accused of Complicity with Military Regime, The Indep., Oct. 4, 2007.
[FN52]. Terry Macalister, Shell Must Face Friends of the Earth Nigeria Claim in Netherlands, Guardian [UK], Dec.
30, 2009.
[FN53]. Derek Baxter, Protecting the Power of the Judiciary: Why the Use of State Department “Statements of Interest” in Alien Tort Statute Litigation Runs Afoul of Separation of Powers Concerns, 37 Rutgers L. J. 807, 830
(2006).
[FN54]. Joseph T. McLaughlin & Justin H. Bell, New Limitations on the Exercise of Jurisdiction Under the Alien Tort
Statute, in Am. Law Inst., Am. Bar Ass'n, Mass Litigation 199, 28 (2008) (listing preventative measures commentators
recommend companies take to avoid exposure to ATS lawsuits).
[FN55]. Oxfam International's Submission to the Government's White Paper on Globalization, May 2000, at 21
(www.oxfam.org.uk/policy/papers/global/global/la/htmsection1).
[FN56].
United
Nations,
The
Ten
Principles,
http://
www.unglobalcompact.org/AboutTheGC/TheTenPrinciples/index.html (last visited Apr. 2, 2010) (stating business
should support and respect human rights).
[FN57]. Global Policy Forum, Joint Civil Society Statement on the Global Compact and Corporate Accountability
(July 2004), available at http:// www.foeeurope.org/corporates/Global_compact_statement_signed.pdf (describing
lack of enforcement mechanism).
[FN58]. Corp. Watch, List of Corporations and Organizations Supporting the Global Compact (July 26, 2000),
http://www.corpwatch.org/article.php?id=612 (listing Labor and Civil Society Organizations supporting Global
Compact).
[FN59]. Id. (listing business associations supporting Global Compact).
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.
33 SFKTLR 461
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[FN60]. See Global Policy Forum, supra note 57 (describing lack of enforcement mechanism).
[FN61]. See Gustavo Capdevila, Global Compact with Business ‘Lacks Teeth’ - NGOs, Inter Press News Service,
July 6, 2007, available at http:// ipsnews.net/news.asp?idnews=38453 (stating concern regarding standards for prosecuting human rights violations by corporations).
[FN62]. Id.
[FN63]. U.N. Econ. & Soc. Council [ECOSOC], Sub-Comm'n on the Promotion and Prot. of Human Rights, Working
Paper: Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to
Human Rights, U.N. Doc. E/CN.4/Sub.2/2003/12/Rev.2 (Aug. 26, 2003).
[FN64]. Id. P 1.
[FN65]. David Weissbrodt, Keynote Address: International Standard-Setting on the Human Rights Responsibilities of
Businesses, 26 Berkeley J. Int'l L. 373, 375 (2008).
[FN66]. Id. at 381.
[FN67]. C.H.R. Res. 2005/69, P 1, U.N. Doc. E/CN.4/2005/L.11/Add.7 (Apr. 20, 2005). The Resolution was adopted
on April 20, 2005, by a vote of forty-nine in favor, three against (Australia, South Africa, and the United States), and
one abstaining (Burkino Faso).
[FN68]. The Special Representative of the Secretary-General, Report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, delivered
to the General Assembly, U.N. Doc. A/HRC/8/16 (May 15, 2008) [hereinafter Ruggie Report].
[FN69]. See id. paras 29, 51, 52 (explaining concept and judicial development of ATS); see supra note 40 and accompanying text (discussing Second Circuit's higher standard of shared purpose to impose aiding and abetting liability
on corporation in Talisman).
[FN70]. Ruggie Report, supra note 68, at 21.
[FN71]. In a state court action filed after summary judgment was entered against the plaintiffs on their ATS claims in
federal court, the state court judge denied Unocal's motion for summary judgment, allowing the plaintiffs' case to go to
trial. See Doe v. Unocal Corp., 963 F. Supp. 880, 889-91 (Cal. 2004).
33 Suffolk Transnat'l L. Rev. 461
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