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USA: A review of Nestlé & Cargill v. Doe amici arguments in front of Supreme Court

"Nestlé & Cargill v. Doe Series: Mapping Amici Arguments", 19 November 2020.

This article is part of a Just Security series on the consolidated cases of Nestlé USA, Inc. v. Doe I and Cargill Inc. v. Doe I, to be argued before the Supreme Court on Dec. 1.

Cases brought under the Alien Tort Statute (ATS) tend to attract a lot of “friends of the Court” briefs, and Nestlé v. Doe/Cargill v. Doe did not disappoint – seven amici filed briefs on behalf of the petitioners Nestlé USA, Inc. and Cargill, Inc., and a whopping eighteen filed on behalf of the respondents (Malian nationals alleging that petitioners aided and abetted child slavery abroad).

The amici briefs for petitioners advance four main arguments in support of the corporations: that there are no specific, universal, and obligatory norms of corporate or aiding and abetting liability in international law; that the separation of powers principle prohibits courts from extending liability in ATS suits to corporate defendants or to claims of aiding and abetting tortious conduct, absent express authorization from Congress; that the Court should read the presumption against extraterritoriality to bar most ATS suits where the tortious injury occurs outside the United States; and that the ATS is not the appropriate instrument to remedy the alleged human rights violations.

Respondents’ amici briefs contest each of these arguments, arguing that specific, universal, and obligatory international norms of corporate liability for aiding and abetting the conduct in question do exist; that no separation of powers concern blocks such a finding; that the ATS was understood at its enactment to provide extraterritorial jurisdiction over tortious actions committed abroad by U.S. persons; and that the ATS is specifically designed to remedy the kinds of harms alleged by the respondents.

Below, a closer examination at each of these arguments and a look at how respondent’s amici reply. Several of these amici will publish subsequent posts in this Just Security series to elaborate on the arguments sketched below...

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