|Pix Credt: Just Securty|
The long awaited decision of the U.S. Supreme Court in Nestlé v. Doe (No. 19–416. Argued December 1, 2020—Decided June 17, 2021); slip opinion HERE) has already produced a number of initial comments that tend to reflect the political principles that each seeks to advance. The ATS project has long been seen as a sort of Holy Grail for a segment of the international vanguard who saw in it the merging of two significantly important (and at least theoretically worthy) projects. The first was to develop the global project of the legalization of of human rights within an important domestic legal order. The second was to find in the judicial architecture of a powerful state a means for judicial oversight of this newly legalized sphere of conduct. The judicialization and internationalization of human rights within a domestic legal framework was seen as a gateway to the construction of a system of international judicial oversight that would eventually globalize this now hardening international legalization.
The trick, of course, was not to domesticate international law, but rather to internationalize domestic law. The ATS, overseen by the U.S. (mostly federal) courts was viewed as a natural doorway to the advancement of this project. There were other doorways as well. The Dutch and U.K. courts, fr example, have been at the forefront of the internationalization of a law of human rights torts which in the process is transforming principles of corporate personality, agency and responsibility along global production chains. Other states, now notably including France and Germany, sought to legalize the societal pillar of the UN Guiding Principles for Business and Human Rights' human rights due diligence responsibilities through statutes that project national authority in the service of international law (hardened domestically) and applied globally along the territories of production.
Now, in its own quirky way, the Nestlé decision has put the United States back in the game, though not exactly in the way that adherents of judicial instrumental ism in the service of a more coherent internationalized legalization project might have wanted. Nevertheless, at least for advancing the normative order at the heart of the interests of the United States and its post global imperium, this is a positive development. It is quirky in at least two respects. The first is the sensitivity to judicial extensions of the projection of national judicial authority beyond the limits of the national territory (however that might be conceived from era to era). In that respect internationalization of the domestic--as least with respect to the expansion of judicial authority--continues to be circumscribed and with a great fidelity to ancient notions of the constitution of a state within a community of states. At the same time, the judiciary declared its willingness to get out of the way (constitutionally speaking) for the imposition of legal responsibility to bodies corporate (enterprises of course but potentially also states operating in or through the economic sphere). More importantly, it suggested that legal internationalization of domestic legal orders, that is of the domestication of international law or the internationalization of domestic law may indeed be undertaken by Congress and the President within the scope of their constitutional authority--and with it the extension of the judicial authority that is necessary for its application. And that is also to be applauded--if only because it brings politics back to the great issues of judicialization and internationalization of law, and with it a return to a greater fidelity to the human rights (civil and political) inherent in liberal democratic political orders in which there is still a (small) space for popular participation beyond the rituals of voting for elected officials.
All of this requires much deeper consideration. To that end that my colleague and friend Joel Slawotsky has kindly produced a marvelously insightful preliminary analysis of Nestlé, which is entitled "The Continuing Odyssey of Corporate Liability in Alien Tort Statute Litigation. Joel Slawotsky, of the Radzyner School of Law,
Interdisciplinary Center, Herzliya, Israel, and the Law and Business
Schools of the College of Management, Rishon LeZion, Israel, is a former law clerk to the Hon. Charles H. Tenney, (U.S.D.J.,
S.D.N.Y.) and AV peer-review rated attorney at Sonnenschein (now
Dentons). He has produced excellent essays and thought pieces for "Law at the End of the Day" on issues relating to
globalization, international law and relations, and corporate liability
under international law. He has served as Guest Editor of the Sovereign Wealth Fund special issue of Qatar University International Review of Law (IRL) (2015). He has studied the issues around ATS for a number of years (among these, see, e.g., "Corporate Liability for Violating International Law under The Alien Tort Statute: The Corporation through the Lens of Globalization and Privatization," International Review of Law 6: 23 (2013);
ATS Liability for Rogue Banking in a Post-Kiobel World, Hastings Int'l & Comp. L. Rev. 37:121 (2014)).
His essay follows below. He correctly focuses on the great fissure points of the decision--the debate about the extent of causes of action that may be extracted from ATS, and the standards for judicial engagement in extraterritorial claims. The discussion of the emerging sensibilities about extraterritoriality must be taken seriously for their political ramifications. The emerging three camps respecting the possibility of judicially extracting causes of action for the text of ATS provides a clear window on emerging ideologies of the judicial function and their place within the constellation of divided power that constitutes the general government of the United States under its constitutive text.
The Continuing Odyssey of Corporate Liability in Alien Tort Statute Litigation
Thank you Larry for the invitation to post some preliminary comments on the continuous and somewhat tortuous path of confronting the corporate liability issue in litigation in U.S. courts pursuant to the Alien Tort Statute (“ATS”). It seems a hallmark in ATS litigation at the Supreme Court to “dodge” the issue and render rulings in a fashion that simply kicks the can down the road. While this new opinion did not disappoint in this regard, it seems increasingly clear that the Court is endeavoring to “shut the door” on ATS claims – although ironically – corporate liability seems more viable than ever and might be available under very limited circumstances. This short essay will first offer a brief review of the opinion and subsequently offer some general preliminary thoughts.
The deeply fractured opinion, authored by Justice Thomas, arises from claims of child labor and the involvement of U.S. corporate entities (Jesner has foreclosed the option as to foreign corporations) in the Ivory Coast. Plaintiffs’ alleged that the defendants’ U.S. operations had knowledge of appalling conditions in the cocoa fields and aided and abetted the child labor via corporate activities. The District Court held the presumption against extraterritoriality controlled and without overcoming the presumption the claims must fail. In reversing, the Ninth Circuit held that corporate liability was available for U.S. defendants and that the presumption in the case was rebutted since plaintiffs provided evidence that corporate financial decisions were made in the U.S. thus overcoming the presumption. The Supreme Court accepted certiorari and reversed the Ninth Circuit.
Before briefly describing the arduous opinion, there are three crucial take ways from the ruling.
(1) The presumption against extraterritorial jurisdiction continues to serve as the Court’s “go to” elixir for ATS cases. Rather than openly confronting the circuit split on corporate liability and deciding the question, the court falls back once again on extraterritoriality (see e.g., Kiobel v. Royal Dutch Petroleum Co.). The extraterritoriality hurdle will continue to be daunting as even the more liberal Justices in their concurrence sided with the majority and moreover there is precious little guidance offered on what conduct can overcome the presumption.II. Brief Overview of The Court’s Decision
(2) Allowing new causes of action (“COA”) beyond the three predicate offenses such as child labor, or for that matter slavery or genocide, may or may not pose a difficult challenge. Here, the opinion constitutes an enigma. Justices Thomas, Gorsuch and Kavanaugh are squarely in the “no new COA” camp. The three liberal Justices are of course not in agreement. This leaves Justices Roberts and Barrett who did not join the no new COA prong of the Opinion. In a fascinating development, in his dissent, while Justice Alito clearly did not commit to recognizing new COA and in fact noted the strong arguments against new COA, significantly, he refused to concur with his conservative colleagues. Thus, the issue of whether new COA would be recognized is “in-play” although it is quite unclear whether the draconian restriction would in fact be upheld by 5 Justices.
(3) Ironically, while the Court did not explicitly rule on the corporate liability issue, implicitly, corporate liability for domestic U.S. entities is available. Five Justices believe corporations do not enjoy immunity. Justices Gorsuch and Alito specifically stated that corporations are potentially liable and together with Justices Sotomayor, Breyer and Kagan (see Sotomayor Concurrence page 8 note 4). There appears a clear majority for this proposition. Whether corporate liability for violations of international law can be utilized “practically” by ATS plaintiffs is an intriguing question and is clouded in doubt because the parameters of doing so is substantially restricted. However, the fact a majority of Justices believes corporations can be liable comports with global trends of corporate accountability.
The Court’s “majority” ruling was written by Justice Thomas and the reasons for reversing the Ninth Circuit were divided into two main prongs: the presumption against extraterritoriality and the refusal to recognize new COA. The extraterritoriality argument garnered an 8-1 support and even the three liberal Justices joined. However, with respect to Justice Thomas’s second prong, the argument that new COA were not going to be allowed, only Justices Gorsuch and Kavanaugh joined. Therefore, there are now three “blocks” – in opposition to recognizing new COA (Justices Thomas, Gorsuch and Kavanaugh), in favor of new COA (Justices Sotomayor, Breyer and Kagan) and the “unaligned” or “unknown” (Justices Alito, Barrett and Roberts).
Eight Justices concurred that in the pending litigation there was an absence of connection to the United States to rebut the presumption against exercising extraterritorial jurisdiction. Going forward, it is manifestly clear that a real connection to the United States will be needed to overcome the presumption. What is unknown is the type of conduct constituting a sufficient U.S. connection, what degree of “touching and concerning” the U.S. is sufficient. The Court does not provide guidelines. What is needed to establish the connection? What level of involvement such as sending employees overseas to aid and abet the misconduct be needed? Would U.S. corporate conduct aiding and abetting human rights violations committed by an adversary of the U.S. adequately “touch and concern” the U.S.? While the presumption against extraterritoriality is understandable and supported by prior Court pronouncements on this issue, there is a lack of direction with respect to the conduct that is adequate to overcome the presumption.
B. New Causes of Action
Justice Thomas (joined by Gorsuch and Kavanaugh – with Alito a toss-up) argued that the Court will not entertain new COA that are not within the ambit of the three predicate ATS offenses – “violation of safe conducts, infringement of the rights of ambassadors, and piracy.” See Opinion at page 7. This restrictive reading of cognizable claims would eliminate much of the developments in international law in the post WW2 era. Unless the conduct could fit within one of the three predicate offenses, a wide variety of misconduct enjoys effective immunity; state-sponsored torture; informed consent; war crimes and genocide to name a few.
In so concluding, Justice Thomas cited as support the fact that the Court has never recognized a new COA. “Tellingly, we have never created a cause of action under the ATS. Even without reexamining Sosa v. Alvarez Machain, our existing precedents prohibit us from creating a cause of action here.” See Opinion page 6. While this is true, the ATS was rarely invoked until Filartiga v. Pena Irala. And in the post World War 2 era international law has developed significantly. This was recognized in the Court’s Sosa ruling wherein the Court in Sosa essentially endorsed Filartiga (recognizing state-sponsored torture since international law changes over time). Indeed, Sosa explicitly (or at a minimum implicitly) permitted lower courts to “make room” for new COA subject to “vigilant doorkeeping.” Sosa at 729.
Thomas opinion: J. Thomas proceeds to cite to Sosa noting that according to the Court’s decision, conceding that in order to establish a new COA, plaintiff must overcome two hurdles: establish that a violation of “a norm that is specific, universal, and obligatory” and “defined with a specificity comparable to the three international torts known in 1789.” Secondly, plaintiffs must also demonstrate “courts should exercise “judicial discretion” to create a cause of action rather than defer to Congress.” (See Opinion at page 7).
However, the Court’s ruling in Sosa was at best side-stepped and at worst “revoked” by Justices Thomas, Gorsuch and Kavanaugh. Justice Thomas sidesteps Sosa by placing emphasis on the separations of powers doctrine stating that Congress can amend the ATS and noting alternatives exists to ATS suits to address international law violations such as Trafficking Victims Protection Reauthorization Act of 2003. (See Opinion page 8). The intellectual rationale for distancing itself from Sosa was the reference in Sosa “we suggested that future “development” of law might “preclud[e] federal courts from recognizing” new causes of action.” (Opinion, pp 9-10). Indeed, Justice Gorsuch in fact criticized Sosa opining that Sosa’s remarks on new COA were “speculation” and “[h]owever vigilant the doorkeeper, the truth is this is a door Sosa should not have cracked.” (See Gorsuch concurrence page 5).
Justice Thomas’ opinion’s bottom line is stark and does not envision recognition of new COA:“Our decisions since Sosa, as well as congressional activity, compel the conclusion that federal courts should not recognize private rights of action for violations of international law beyond the three historical torts identified in Sosa.” (Opinion at page 8).
Based on the language employed, the ability to bring a new COA is a herculean task and would need to fall squarely within the rubric of the three predicate offenses. It is difficult to envision the Court would be unwilling to recognize other violations of international law – ostensibly even jus cogens violations – but pursuant to the three Justices so holding, the prospect is possible.
Gorsuch Concurrence: On the question of corporate liability Justice Gorsuch wrote a concurrence (joined by J. Alito) which finds no reason to immunize U.S. corporations for violations of international law. “The notion that corporations are immune from suit under the ATS cannot be reconciled with the statutory text and original understanding.” (Gorsuch concurring at page 1). J. Gorsuch details that nothing in the ATS precludes corporate liability and that international law has long recognized claims against businesses for piracy. (Gorsuch Op. at pages 2-4).
But the victory for corporate liability proponents is pyrrhic as J. Gorsuch vehemently opposes recognition of new COA agreeing with J. Thomas that the Court has never recognized a new COA. But J. Gorsuch goes even further and rather than sidestepping Sosa he in effect rebukes the analysis and principles underlying the decision in Sosa and heavily criticizes the ruling, referring to the decision as “complicating” ATS litigation by “speculating” that new COA were possible. (Gorsuch concurring at page 5). He added “I would stop feigning some deficiency in these offerings. However vigilant the doorkeeper, the truth is this is a door Sosa should not have cracked.” (Ibid., at 5). This is implicitly a revocation of Sosa which J. Gorsuch would clearly be in favor of doing.
J. Gorsuch concludes his anti-new COA remarks stating that Congress is the address to recognize new COA as “It would get this Court out of the business of having to parse out ever more convoluted reasons why it declines to exercise its assumed discretion to create new ATS causes of action”. (Gorsuch page 6). “And it would clarify where accountability lies when a new cause of action is either created or refused: With the people’s elected representatives.” – (Gorsuch page 7)
Sotomayor Concurrence: Justice Sotomayor’s concurred (joined by Breyer and Kagan) agreeing with Justice Thomas on the issue of extraterritoriality. However, J. Sotomayor noted the opinion overruled Sosa “in all but name” and that restricting the ATS to only three violations “contravenes both this Court’s express holding in Sosa and the text and history of the ATS.“ – (Sotomayor concurrence page 1).
Justice Sotomayor notes, as Justice Thomas does, that pursuant to Sosa new COA can be recognized if the norm is of a character similar in nature to the three predicate violations such as being specific, obligatory and universal and subject to courts’ discretion in being vigilant in allowing new COA. (Sotomayor Op at 3-4). But at this point, J. Sotomayor diverges from J. Thomas and criticizes J. Thomas’ view that any new COA should be left to Congress and separation of powers is not an impediment. (Sotomayor 4-6). “[F]rom the moment the ATS became law, Congress expected federal courts to identify actionable torts under international law and to provide injured plaintiffs with a forum to seek redress.” (Sotomayor at 7).
Acknowledging that Federal courts must exercise vigilance (and thus not open the proverbial flood-gates), J. Sotomayor addresses the concerns enumerating “tools” to ensure faithful compliance with Sosa’s directive and the need to balance separation pf powers concerns: the presumption against extraterritoriality; the need for personal jurisdiction; deference to the Executive and Legislative Branches in specific cases; exhaustion of remedies; forum non conveniens; and international comity. Sotomayor at page 9. The concurrence notes the bottom line with respect to new COA: the opinion “would instead bar any ATS suit that seeks to hold a defendant liable for violating any international norm that developed after the 18th century. After all, as held in Sosa, analogous to pirates in the 18th century, “today’s torturers, slave traders, and perpetrators of genocide are “’hostis humani generis, an enemy of all mankind.’” Sotomayor at page 2 (citing Sosa, 542 U. S., at 732). The failure to recognize new international law norms “is a gross overreaction to a manageable (and largely hypothetical) problem.” Sotomayor at page 9. Interestingly, this critique of the Opinion as addressing a yet non-existent problem is echoed by J. Alito in his dissent that the Opinion is close to an advisory opinion. Dissent at page 2.
Alito Dissent: In many ways, the most interesting part of the opinion was Justice Alito’s succinct dissent in which he opines that corporations do have liability and argues the Court’s Opinion constitutes a sort of “judicial front running” (my terminology).
With respect to corporate liability, J. Alito joined J. Gorsuch finding ATS claims against corporations were valid to the same extent the claim would be valid against an individual. In fact, Justice Alito proclaims that this issue was the primary question before the Court and is troubled by the fact the Court is evading the corporate liability issue. Alito Dissent at pages 1-2. According to the dissent, if a particular claim may be brought under the ATS against a natural person who is a United States citizen, a similar claim may be brought against a domestic corporation. He clearly is in favor of corporate liability and presumably would have wanted the opinion to rest on the corporate liability issue. There seems to be a majority on even this conservative court favoring corporate accountability (the three liberal Justices, plus JJ. Alito and Gorsuch) for violations of international law.
The unique part of J. Alito is his argument that the Court should have decided the corporate liability issue and not dismissed based upon extraterritoriality (holding the plaintiffs should be provided an opportunity to amend the Complaint). The dissent argues that the Court is in essence “front-running” by presuming a set of facts not yet determined. J. Alito states the Opinion dismisses claims in the context of “an advisory opinion” because: the Court is presuming: it is improper recognize new COA; the alleged conduct fails to constitutes a question of fact with respect to secondary liability and such conduct is non-justiciable (“specific, universal, and obligatory international law norm of aiding and abetting unavailable); and even if a norm existed, plaintiffs failed allege the elements of such a claim such as satisfying either the purpose or mere knowledge standard (Alito dissenting at page 2). J. Alito refers to the Opinion as improperly making these presumptions and therefore the “decision begins to take on the flavor of an advisory opinion when it is necessary to make so many important assumptions in order to reach the question that is actually resolved.” (Alito at page 2).
Interestingly, while J. Alito favors corporate liability, by no means is it assured that J. Alito would support new COA (although this possibility is by no means foreclosed). Indeed, he refers to J. Thomas’s opinion and J. Gorsuch’s concurrence as an exemplar of “strong arguments that federal courts should never recognize new claims under the ATS.” (Alito at page 2). However, the dissent notes that the issue was not advanced by the corporate defendants and should not have been reached. Alito at page 2. Rather, the dissent would have rejected the defendants’ claims as to corporate liability and sent the case back to the district Court for further development. (Alito, Dissent at 2-3).
III. Initial Observations
I will group my initial observations into two broad categories, each discussed below. The first touches on the federal courts and the future of ATS litigation. The second considers the role of the U.S. in upholding international human rights norms and extraterritorial projections of authority. The third
A. The Court and ATS Litigation
The presumption against extraterritoriality evidently rules the day (a whopping number of Justices in agreement) and it will be difficult to overcome (like the purposeful standard in secondary liability rendering the ATS relatively irrelevant since proving purpose is very difficult.) Mere allegations of corporate activity such as decisions made in the U.S. are evidently insufficient – but what conduct is sufficient? How do plaintiffs adequately allege a domestic application of the ATS?
With respect to new COA, presuming the presumption against extraterritoriality is overcome, would the Court not allow claims based on genocide or crimes against humanity? This is hard to comport with the historical narrative of the ATS. This restrictive reading fails to comport with the Court’s previous endorsement of Judge Kaufman’s landmark ruling in Filartiga wherein the ATS was held to encompass international law as it exists “today”. Perhaps the position of the three anti-new COA Justices is driven somewhat by ideology bias to keep ATS cases out of U.S. courts. Finding that in the ATS context international law is frozen in the 18th Century seems the result of wanting ATS litigation to “go away”. Of course, even assuming arguendo the anti-new COA block becomes the majority, at worst for plaintiffs, the possibility also exists for Congress to amend the ATS in the future to encompass developments in international law.
Yet there is good news for plaintiffs and those who believe corporations should not be immune to lawsuits. Corporate liability opponents have cited to the Second Circuit’s Kiobel ruling (2-1 Judge Leval dissenting) claiming that international law is not applicable to corporate actors but only as against the individuals within the corporate entity. However, the remarks of five of the Justices vindicates the position that the Second Circuit’s Kiobel ruling was in fact an outlier and decided incorrectly (further discussed in my essay here). Based on the Nestle ruling, a majority of the Justices would find corporations potentially liable for violating international law and in that respect perhaps that avenue of defense seems eroded if not eliminated.
B. The U.S. Role in Upholding Human Rights and Extraterritoriality
While the U.S. Executive Branch (see US State Department 2020 Human Rights Country Reports) and Congress are doubling-down on human rights (perhaps selectively but is doing so nevertheless), it seems counter-intuitive that the Court would make corporate responsibility for human rights violations even more difficult to pursue by emphasizing the presumption and not really explaining how plaintiffs can meet the challenge. This emphasis on the presumption is occurring when other nations are more comfortable exercising jurisdiction for extraterritorial conduct - particularly the main U.S. competitor - China. For example, China’s new Data Draft Law encompasses a strong extraterritorial component. See also the Hong Kong National Security Law. paras 99, 100.
While at first glance ATS litigation may not trigger national security concerns, human rights is being emphasized in connection with the U.S.-China hegemonic rivalry (see, e.g., G-7 reaches consensus on China dumping, human rights abuses: U.S. official). To a degree, cutting back on extraterritoriality is inapposite to the efforts at renewed U.S. global leadership in defending human rights. By failing to provide direction as to a domestic application of the ATS, plaintiffs are truly in the dark regarding how to overcome the presumption which dis-incentivizes filing such claims. Moreover, there might be a path for plaintiffs if overseas misconduct could be viewed as deleterious to U.S. national interests. Damaging U.S. national interests might be a tangible connection – an embodiment o f touching and concerning – that could overcome the presumption.
Moreover, an overly challenging environment for pursuing such claims goes against the overwhelming trend internationally. There is substantial scholarship highlighting the paramount importance – and complex dimensions - of business and human rights. Larry Catá Backer, "On the Evolution of The United Nations’ 'Protect-Respect Remedy' Project: The State, the Corporation and Human Rights in a Global Governance Context," Santa Clara J. Int’l L. 9:37, 42 (2011); Larry Catá Backer, "From Institutional Misalignments to Socially Sustainable Governance: The Guiding Principles for the Implementation of the United Nations’ “Protect, Respect and Remedy” and the Construction of Inter-Systemic Global Governance," 25 Pac. McGeorge Global Bus. & Dev. L.J. 25:69, 74 (2012).
The role of large global corporations in promoting international law is a pivotal issue given the overwhelming power of corporate actors (See, Joel Slawotsky, "Corporate Liability for Violating International Law under The Alien Tort Statute). Indeed, recent years have brought a substantially increased focus on human rights abuses conducted by global corporations (either directly or by aiding and abetting the state) as well as the absence of safeguards ensuring corporate compliance with international law and human rights (Rachel Chambers, Parent Company Direct Liability for Overseas Human Rights Violations). Corporate enabling of international law violations is being increasingly scrutinized, criticized and prohibited. See Akpan v. Royal Dutch Shell Plc., No. 337050/HA ZA 09-1580 (District Court of the Hague, Jan. 30, 2013); Akpan v. Royal Dutch Shell Plc., No. 337050/HA ZA 09-1580 (Appeals Court of the Hague, Dec. 17, 2015). See Dalia Palombo, ‘The Duty of Care of the Parent Company: A Comparison between French Law, UK Precedents and the Swiss Proposals’, Bus & Hum. Rts. J. 4:1 (2019). The complexities of state and corporate power - including the balance of power between them and their interrelationship - is the subject of dynamic transformation. Larry Cata Backer, "The Emerging Normative Structures of Transnational Law: Non-State Enterprises in Polycentric Asymmetric Global Orders," BYU J. Pub. L. 31:1, 18 (2016) (“But this simple notion of state, law, and juridical persons, of governance and government, has been undergoing substantial changes over the last quarter century.”)
The global trend to make corporations responsible for human rights abuses is manifestly clear. The Canadian Supreme Court ruled in Nevsun Resources Ltd. v. Araya, 2020 SCC 5 (Can.) that Canadian corporations may be liable in Canadian courts for human rights violations committed in foreign countries. The EU and UK are also focusing on preventing corporate complicity in human rights abuses committed “away from home”. See U.K. Modern Slavery Act of 2015, § 54(1)(corporations must publish how they are ensuring the prevention of slavery in corporate supply chains.); see also Hannah Roberts, How Human Rights are Making Their Way into Mainstream Due Diligence (mandatory human rights safeguarding under serious discussion in the EU) There is also a growing consensus to impose corporate liability in domestic courts for foreign subsidiary misconduct that causes human rights violations. See Tara Van Ho, "Vedanta Resources Plc and Another v. Lungowe and Others," AJIL 114:110–116 (2020).
The landmark report of John Ruggie firmly mainstreamed the international legal responsibility of businesses and states to uphold human rights (U.N. Guiding Principles on Business and Human Rights). Known as the “Guiding Principles” or theUNGP, the principles they elaborate are essential in framing the conceptualization of corporate duties to prevent human rights violations. Corporations need to be monitored by states so as to ensure the obligation to protect human rights is fulfilled.States should exercise adequate oversight in order to meet their international human rights obligations when they contract with, or legislate for, business enterprises to provide services that may impact upon the enjoyment of human rights. (Ibid.)Therefore, it is paradoxical that as other sovereigns are increasingly looking for ways to hold their domestic corporations accountable for human rights violations committed overseas, the Court’s ruling makes holding U.S. corporations accountable seemingly viable as to corporate liability but difficult in terms of overcoming the presumption. Time will tell to what extent the tortuous path of ATS litigation has been severely damaged or simply re-routed to an all-encompassing focus on a domestic application. ATS litigation has proven resilient despite setbacks; rumors of the ATS’ demise have been exaggerated in the past and any such claims are likely overstated today as well.