On April 24, 2018, the U.S. Supreme Court issued its much anticipated opinions in Jesner v. Arab Bank (No. 16-499) (Argued October 11, 2017; decided April 24, 2018) 584 U.S. -- (2018). Justice Kennedy delivered an opinion for a majority as to Parts I and II(B)(1) and II(C) concluding, in an important part, that foreign corporations were not amenable to suit brought under the Alien Tort Statute (28 U.S.C. § 1350; ATS) which provides that “The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.”
With respect to the rest—the issues around the nature, scope and application of ATS itself, the Supreme Court remains fractured and the law unsettled. Justice Kennedy was joined only by the Chief Justice and Justice Thomas in Parts II(A), (B)(2)-(3) and III. Justices Thomas, Alito and Gorsuch delivered concurring opinions and, from a jurisprudential perspective, at least, Justice Sotomayor delivered a dissenting opinion in which Justices Ginsburg, Breyer and Kagan joined, contesting both the conclusion that foreign corporation were not amenable to suit under ATS and with respect to the nature and character of ATS itself.
While the issue of the scope and application of ATS will likely come back to haunt the Supreme Court again in the next several years, the issue of corporate liability may not. For all the passion of the litigation, the issue was both an exercise in misdirection and one that the Supreme Court suggested might be easily fixed—not by them but through legislation. The difficulty here is not whether corporations are absolved “from responsibility under the ATS for conscience shocking behaviors” (Sotomayor, dissenting, slip op. p. 1) but whether they might be made both liable and amenable to suit for such behaviors in the United States at all. Rather than investing the time and energy spent on reshaping ATS (and the constructions of relevant international law) to suit the times (as the legal community has sought to do for a generation), the opinion appears to suggest that this time might be better spent on getting the desired result in Congress. And that, the possibility of direct statutory authority creating extraterritorially applied liability against persons and corporations for violations of international law wherever committed, to some real extent, is a victory (and the great challenge) for those who seek to do exactly as Justice Sotomayor and the dissenting Justices argue is both right and good.
This post briefly considers the Jesner decision, with a focus on the issue of corporate amenability to suit generally and specifically under the peculiar constructions of the ATS. The essay may be downloaded HERE.