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25 Apr 2018

Nadia Bernaz, Rights as Usual

Unnecessary, Wrong, and Misguided – the US Supreme Court’s Blanket Ban on All ATS Suits against Foreign Corporations in Jesner v Arab Bank

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...[O]n  24 April 2018...the Court issued a blanket ban on all ATS [Alien Tort Statute] suits against foreign corporations...[T]his is the end of business and human rights ATS litigation against non-US companies, and a setback for those who seek to strengthen corporate accountability...The decision is also wrong, as it conflates the existence of a norm of international law and the possibility of its enforcement at the international level...[T]he decision is misguided.  The Court expresses concerns about the treatment of US corporations abroad if ATS suits against foreign corporations were allowed to continue...It is as if the Court aimed to appease those who believe US corporate giants cannot possibly do wrong...The case could have been dismissed on forum non conveniens grounds or on the basis of nonjusticiability concerns...Instead..., the Court went for an absolute ban...The Court discusses...the existence of a norm on corporate liability for gross human rights violations under international law.  It concludes that such liability is not recognised in international criminal tribunal’s statutes and that it therefore does not exist...To use this argument to prevent corporate liability at the domestic level is wrong...To think that the mere possibility of an ATS lawsuit against foreign corporations could “ discourage” US corporations from investing abroad is misguided...This argument is also ridiculous in light of the protections international investment law affords...The final point about how US corporations contribute to the realisation of human rights is also misguided...