Posted by Kenneth Anderson:
Circuit Split on Corporate Liability in Alien Tort Statute Cases?
http://volokh.com/archives/archive_2009_08_23-2009_08_29.shtml#1251132007
Over at [1]Opinio Juris, the international law professor blog, my
colleague Roger Alford (Pepperdine) has a [2]great new post up on
amicus briefs being filed by various prominent law professors on the
question of corporate liability in Alien Tort Statute cases. Part of
the debate is whether there is now a circuit split on fundamental
questions of corporate liability in international law, and whether
that urges a hearing by the Supreme Court, which did not exactly
settle ATS standards with its Delphic Sosa decision a few years ago.
My own views on corporate liability in international generally, and
ATS actions particularly, are firmly that, well, there isn't any such
thing in positive international law as it currently exists. It wasn't
an oversight to be "gap-filled" by the Federal courts, even it such a
thing were appropriate - lots of countries have expressed strong views
that, for whatever reasons, in various important treaties they did not
want to include corporate liability and so they did not. I talked
about this as a black letter law issue in an expert declaration I
offered for corporate defendants in the last of the [3]Agent Orange
cases, downloadable here.
But I have found myself fascinated, in a much more academic sense,
with the way in which the development of legal standards on an
international law question by US courts (required to answer it as a
threshold matter in ATS litigation) is part of a general move toward
the "fragmentation" of international law into international law as
understood and interpreted and pronounced by increasingly "deep" but
also increasingly "separated" rhetorical communities of articulation,
interpretation and authority. If you are a US lawyer or judge in an
ATS case, you have available to you, after all, a now-considerable
body of US case law that makes out a number of doctrines on entity
liability that must seem quite strange to foreign international
lawyers committed to international law, if anything, far more strongly
than you, but committed to it through its articulation by a quite
different community with differing authority and legitimacy.
The general trend is, quite possibly, toward communities of authority
that have ever deeper authority within their own sphere but less and
less to say to each other. I put this in a recent [4]European Journal
of International Law article (an article that covered many other
things as well), which is going to be discussed in the fall at the
blog EJILTalk!:
[C]ommunities of interpretation are susceptible of moving gradually
off in their own directions, asserting the primacy of their own
views and gradually tending to ignore other communities of
interpretation. Again, [any one might] be perfectly correct as a
matter of substantive law. However, it does press its own hermetic
dynamic.
Consider, for example, the very particular sub-community of
interpretation of the laws of war by US courts in Alien Tort
Statute interpretation. Those courts (constantly citing each other)
have gradually built up a hybrid jurisprudence of certain aspects
of international criminal law � war crimes, crimes against
humanity, and genocide, for example � together with other materials
drawn from US civil and tort law, such as corporate liability,
aiding and abetting, and similar doctrines. The individual terms of
the one-sentence Alien Tort Statute (ATS) � �in violation of the
law of nations or a treaty of the United States�, especially �
create idiosyncratic pressures on interpretation. What is the �law
of nations� � for purposes of US jurisprudence, under US
constitutional standards and current Supreme Court interpretation
under the Sosa decision? Whatever exactly the law of nations means
as an international law term, it means something different in the
hands of American courts which, under Sosa, are required to look
not strictly to �traditional� international sources, such as those
stated in the ICJ statute, nor strictly to such concepts as jus
cogens � but instead, per Sosa, to a somewhat altered form of
original meaning jurisprudence and what the drafters of the statute
meant, along with some �fundamental� matters of the law of nations.
In other words, the jurisprudence of the US courts applying the ATS
is not merely internationally agreed substantive international law
plus some US civil litigation concepts to make the claim out in US
tort terms such as enterprise liability. It is, instead, an
interpretation of �international law� filtered through an ancient
US statute, with US canons of constitutional interpretation applied
to the meaning of the statute and only by extension to the
�international� law underlying it.
The whole process of interpretation, while fairly ordinary in US
constitutional adjudication, must look slightly strange to
international lawyers. The substantive results, especially as
driven by the urgent, overriding need of plaintiffs to prove a law
of nations violation, must start to look strange to those
international lawyers as well. I suspect � it is hard to get anyone
to say much, frankly � that many international law experts are, on
the one hand, reassured to see American courts involve themselves
with substantive international law, gradually drawing it into
American jurisprudence and adjudication. On the other hand, I
suspect many of them are also privately unhappy with the actual
content of that law, thinking that it is evolving within its closed
community in ways which are not consistent with the �authoritative�
interpretation of international law in the international community
and which are, in a word, weird. But who wants to be the
�international lawyer� to tell a US District Court that?
Is this ATS law �international criminal law�? Not in the sense of
international criminal law as established by international
tribunals. But it is a form of international criminal law as far as
US courts are concerned, even if others in the world think that it
perhaps deserves its own special appellation � �ATS-international
law�, maybe � to distinguish that parochialism from the genuinely
universal �real thing�.
Will any of these non-US international lawyers come forward with a
critique of where ATS litigation is carrying - willy-nilly, one might
be inclined to think - huge matters of international law, without any
input from the rest of the 'international community' in the form, for
example, of a treaty negotiation? Hard to say. Meanwhile, here is
Roger's conclusion on the state of the ATS debate within US courts:
Regardless of one's views about corporate liability in the ATS
context, there is little doubt that the federal circuits are in
disarray and that Supreme Court guidance would greatly assist in
the development of the law.
The Pfizer case is a particularly good vehicle to develop the law
because it so clearly departs from the direction of other circuits
regarding the state action requirement. The facts also are
particularly unusual, with the alleged corporate misconduct almost
completely divorced from any government conduct, or even knowledge
of the misconduct. Contrast that with the South African apartheid
case of Khulamani v. Barclays where the principal bad actor was the
South African government and the corporate misconduct appeared to
be peripheral.
Eventually the Court must consider corporate liability in the ATS
context. With a circuit split, great counsel on both sides, and
highly unusual facts that almost beg for clarification on the
proper standard, Pfizer may be the ideal case.
References
1. http://www.opiniojuris.org/
2.
http://opiniojuris.org/2009/08/24/supreme-court-review-of-ats-corporate-liability/
3. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=901012
4.
http://ejil.oxfordjournals.org/cgi/content/full/20/2/331?ijkey=rzXcS7F7Uu6b5To&keytype=ref
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