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The Alien Tort Statute and Corporate Liability: Looking Ahead to the Supreme Court Decision in Kiobel

By: Maria Florencia Librizzi[*]

The Supreme Court will soon decide the fate of litigation seeking to hold U.S. corporations accountable under the Alien Tort Statute (ATS) for aiding and abetting human rights abuses overseas. In September 2010, the Second Circuit held in Kiobel v. Royal Dutch Petroleum that the statute did not apply to corporations.[1]  Since then, several other circuits have ruled otherwise, leading the Supreme Court to grant certiorari in Kiobel in October 2011. Oral argument is scheduled for Tuesday, February 28.[2]

The outcome of this case will be profoundly important. If the Court affirms the Second Circuit’s majority opinion, alien victims will no longer be able to sue corporations under the ATS. In many cases corporations will be free to profit from overseas human rights violations, while safeguarding their assets against compensation claims.[3]

Looking ahead to the Court’s decision, I summarize below the evolving jurisprudence of the ATS, including the circuit split over the statute’s applicability to corporations and the mens rea standard for aiding and abetting liability. If the Court limits itself to the Questions Presented in the certiorari petition, it will decide only whether the ATS applies to corporations. However, the Court may also resolve other points of contention among the circuits, including the mens rea standard for aiding and abetting liability. After reviewing the case law, I conclude with several arguments—instrumental, descriptive, and policy—in favor of recognizing corporate liability under the ATS.

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The prohibition of surrogate motherhood in France

The French prohibition of surrogate motherhood, resting on moral and ethical considerations, raises complex issues of private international law.

Surrogate motherhood has been prohibited in France since 1991, under a decision by the Cour de cassation (France’s highest court), (Cass. Ass. plén., 31/05/1991). This prohibition was confirmed in the bioethics law of 1994, and is codified in article 16-7 of French Civil Code (“Civil Code”). Article 16-9 of the Civil Code makes this a prohibition of public order (In France, prohibitions of ordre public or public order are mandatory rules created unilaterally by the state to protect fundamental values of the society, and from which parties have no freedom to derogate. A foreign law applicable under a conflict of laws analysis would be evicted if contrary to a mandatory rule). A surrogacy contract is null and void, and violations are punished by civil and criminal sanctions (civil sanctions are described in articles 311-25, 325 and 332-1 of the Civil Code and criminal sanctions at articles 227-12 §3 and 227-13 of the Penal Code).

The prohibition is justified by different moral and ethical concerns: to prevent children from becoming commodities traded as merchandise between infertile couples and surrogate mothers; to protect the interest of children who are psychologically at risk in such transaction; and to prevent the exploitation of surrogate mothers who must relinquish parental rights to the child after giving birth. Surrogate mothers are usually from lower economic strata and are economically exploited in this transaction. Statistically there is an inherent social division in this practice. This is evinced by the fact that most surrogacy contracts require compensation because very few women would bear someone else’s child for free. This social division is not new – surrogate mothers were slaves in the days of the Bible and Ancient Rome.

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Our New Summer Issue (43:4)

Our summer 2011 issue is now available online at our official NYU website. Margaret L. Satterthwaite, Indicators in Crisis: Rights-Based Humanitarian Indicators in Post-Earthquake Haiti, 43 N.Y.U. J. Int'l L. & Pol. 865 (2011). Doreen Lustig, The Nature of the…

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Issue: Fall 2010

The Fall 2010 issue of the Journal of International Law and Politics is available at our official NYU website.  The contents are as follows: Georges Abi-Saab, The Normalization of International Adjudication: Convergence and Divergencies, 43 N.Y.U. J. Int'l L. &…

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The Amendment of Spain’s Arbitration Act: A Promising But Unfinished Agenda

By Guillermo Bayas Fernández
Attorney-at-law in Spain
Fundación Rafael del Pino scholar
NYU LL.M. Candidate, Class of 2011

Abstract

Last September, the Spanish Government sent to the Parliament a bill (the Bill) to reform the current Spanish Arbitration Act (Ley 60/2003, de 23 de diciembre, de Arbitraje), which is now being discussed in Congress. The Bill improves different aspects of the existing regulation, mainly those concerning the action to set aside the award, arbitrators’ liability, arbitration of corporate disputes and the effect of insolvency proceedings on arbitration agreements. However, the possible suppression of dissenting opinions prejudices arbitration and the regulation on challenge of judicial jurisdiction favors frivolous attempts to avoid abiding by arbitration agreements. respective  Additionally, the proposed assignment of functions among judicial bodies in arbitration issues lacks coherence and does not create a long-demanded unification appeal on arbitration matters. While this article welcomes some of the intended modifications, it raises concerns that Spain might be losing a unique opportunity to adopt a modern regulation that would advance its chances of becoming a prime international arbitration seat.

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