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Transnational Corporate Responsibility in Domestic Courts: Still Out of Reach?

  • Andrew Sanger (a1)
Extract

Despite some modest progress, corporate responsibility for human rights abuses in domestic courts remains elusive. In U.S. federal courts, Alien Tort Statute (ATS) litigation is now more precarious than ever before. While there have been some potentially important developments in English courts, judges are reluctant to extend responsibility to parent corporations for harm caused by the operations of foreign subsidiaries. Although U.S. and English courts have been concerned with distinct doctrinal issues, the overall picture appears to be one of deference to the corporation and its anatomized form, and to the goal of promoting investment abroad.

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This is an Open Access article, distributed under the terms of the Creative Commons Attribution licence (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted re-use, distribution, and reproduction in any medium, provided the original work is properly cited.
References
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1 Jesner v. Arab Bank, 584 U.S. __, 18–26 (2018).

2 Id. at 19.

3 Id. at 3 (Gorsuch J., concurring).

4 Al Shimari v. CACI, Memorandum Opinion of District Judge Brinkema, 25 June 2018.

5 Id. at 4.

6 Kiobel v. Royal Dutch Petroleum, 569 U.S 108, 124–25 (2013).

7 Balintulo v. Daimler, 727 F.3d 174, 192 (2nd Cir. 2013).

8 Warfaa v. Ali, 811 F.3d 653, 660 (4th Cir. 2016).

9 Mujica v. AirScan, 771 F.3d 580, 594 (9th Cir. 2014).

10 Doe v. Drummond, 782 F.3d 576, 592 (11th Cir. 2015).

11 RJR Nabisco v. EC, 579 U.S. ___ (2016), 9.

12 Id.

13 Adhikari v. Kellogg Brown & Root, 845 F.3d 184, 197 (5th Cir. 2017).

15 Lungowe v. Vedanta, [2017] EWCA Civ 1528 (UK).

16 Okpabi v. Royal Dutch Shell, [2017] EWHC 89 (UK).

17 Okpabi v. Royal Dutch Shell, [2018] EWCA Civ 191 (UK).

18 AAA v. Unilever, [2018] EWCA Civ 1532 (UK).

19 Okpabi, [2018] EWCA Civ 191 at 40 (UK).

20 See Caparo Industries Plc v. Dickman [1990] UKHL 2 (UK).

21 Okpabi, [2018] EWCA Civ 191 at 88 (UK).

22 Id. at 196.

23 Id.

24 Id. at 89.

25 Id. at 121.

26 Id. at 196.

27 Id. at 130.

28 Id.

29 Id.

30 Id. at 131.

31 Jesner v. Arab Bank, Transcript of Oral Argument 29 (Oct. 11, 2017).

32 Jesner, 584 U.S. __, 24 (2018) (Kennedy J).

33 Id.

34 Case C-97/08, Akzo Nobel v. Comm'n (2009).

35 Id. at 62.

36 Id. at 61–62, 77.

37 French Duty of Vigilance Law – English Translation, Business & Human Rights Resource Centre.

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