Three paradigms of corporate responsibility in international law: The Kiobel moment

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Abstract

The original question in the United States Supreme Court proceedings in Kiobel was whether multinational companies could be held liable under the Alien Tort Statute (ATS). But the focus of proceedings soon shifted to the consideration of whether the Statute was intended to cover any foreign defendant's alleged crimes abroad. Rather than engaging directly with the issue of the corporate entity, the final decision of the Supreme Court challenged the transnational features attributed to theATS litigation framework at least since Filartiga, and sought to limit the scope of jurisdiction of American courts in such cases. Since the 1990s, ATS jurisprudence has evolved into a central pillar in the regulation of transnational business in international law. This article places this jurisprudence within the framework of the main regulatory paradigms within which the question of corporate responsibility in international law is usually addressed, namely, the statist, the universalist, and transnational private regulation. It is shown that while Kiobel may mark the demise of a robust universalist position articulated in American terms, it nevertheless opens up the possibility of adjudication of transnational violations of the rule of law over a much broader set of concerns through the use of regular torts, as well as the potential involvement of a plurality of actors through the exercise of state jurisdiction by a variety of domestic courts working alongside multiple mechanisms of transnational private regulation. The ramifications of the Kiobel moment allows us also to (re-)consider the role of strong, mostly American, actors - be it the administration, the courts, corporations or other agents - in international power relations and global economic regulation.

Original languageEnglish
Article numbermqu040
Pages (from-to)593-614
Number of pages22
JournalJournal of International Criminal Justice
Volume12
Issue number3
DOIs
StatePublished - Jul 2014

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