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Remarks by Shayak Sarkar

Published online by Cambridge University Press:  31 December 2019

Shayak Sarkar
Shayak Sarkar*
Affiliation:
University of California, Davis, School of Law.
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Extract

Lucas Roorda's analysis of the realities and prospects of European liability for corporate defendants is particularly timely in light of the recent U.S. Supreme Court decisions in Kiobel v. Royal Dutch Petroleum1 and Jesner v. Arab Bank2 limiting foreign direct liability (FDL) in American courts. I make three brief points in response to Lucas's thoughtful contribution: the importance of empirical research on the relevance and role of European fora; consideration of litigation as part of a broader strategy by accountability-seeking plaintiffs; and the distinction between intentional and negligence-based torts.

Type
Fourth Annual Detlev F. Vagts Roundtable on Transnational Law: Corporate Liability for Human Rights Violations after Jesner v. Arab Bank
Information
Proceedings of the ASIL Annual Meeting , Volume 113 , 2019 , pp. 169 - 170
Copyright
Copyright © 2019 by The American Society of International Law

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References

1 569 U.S. 108 (2013).

2 138 S. Ct. 1386 (2018).

3 Darin Christensen & David K. Hausman, Measuring the Economic Effect of Alien Tort Statute Liability, 32 J. L. Econ. & Org. 794 (2016).

4 Cortelyou C. Kenney, Measuring Transnational Human Rights, 84 Fordham L. Rev. 1053, 1059 (2015).

5 See, e.g., Doe v. Karadzic, No. 93 Civ. 0878, 2001 U.S. Dist. LEXIS 12928, at *1–2 (S.D.N.Y. Aug. 27, 2001) (describing $4.5 billion jury award in case against individual defendant for genocide and crimes against humanity).

6 See, e.g., David Scheffer & Caroline Kaeb, The Five Levels of CSR Compliance: The Resiliency of Corporate Liability Under the Alien Tort Statute and the Case for a Counterattack Strategy in Compliance Theory, 29 Berk. J. Int'l L. 334, 372 (2011) (noting that “the liability that arises under ATS litigation, whether or not the plaintiffs are successful, can be significant financially and otherwise”).

7 Roxanna Altholz, Chronicle of a Death Foretold: The Future of U.S. Human Rights Litigation Post-Kiobel, 102 Cal. L. Rev. 1495, 1545 (2014) (discussing one example of a “multi-pronged” approach including, but not limited to, litigation).

8 See id. at 1518–19 (2014) (describing various claims).

9 Kenney, supra note 4, at 1085 n. 172 (citing Jones v. Petty Ray Geophysical Geosource, Inc., 722 F. Supp. 343, 348 (S.D. Tex. 1989)).

10 This is also where Kiobel has been refiled.

11 See, e.g., Gourneau ex rel. Gourneau v. Hamill, 311 P.3d 760 (Mont. 2013) (finding that school in Wolf's Point owed no duty to prevent student suicide); see also Erica L. Green & Annie Waldman, “ I Feel Invisible”: Native Students Languish in Public Schools, N.Y. Times (Dec. 28, 2018), at https://www.nytimes.com/2018/12/28/us/native-american education.html?action=click&module=Top%20Stories&pgtype=Homepage (summarizing legal complaints pertaining to Native educational issues at Wolf's Point).

12 One notable recent exception has been the Ninth Circuit's decision in Rodriguez v. Swartz, 899 F.3d 719, 726 (9th Cir. 2018) (reversing the district court by finding that the border patrol agent “violated a clearly established constitutional right and is thus not immune from suit” and additionally “hold[ing] that the mother of the [Mexican citizen] boy who was killed has a cause of action against the agent for money damages”).