The Future of Corporate Aiding and Abetting Liability under the Alien Tort Statute: A Roadmap

Abstract

This Article offers a roadmap for the Supreme Court to follow in resolving the most pressing issues in Alien Tort Statute litigation. Are corporations liable under the Alien Tort Statute? Does corporate liability under the ATS conflict with international law? What body of substantive law should courts apply, especially when adjudicating alien tort claims arising under the aiding and abetting theory of liability? What are the policy implications of ATS litigation? The Court’s only significant pronouncement on the statute, in Sosa v. Alvarez-Machain, relegated most of these concerns to a footnote that raised more questions than it answered. Taken together the answers to these questions help identify the limits imposed by customary international law – and by Sosa - on the federal courts regarding corporate aiding and abetting liability.

The Article proceeds as follows: Part I reviews the complicated history of the ATS and explains why the Court must revisit many of the issues in Sosa. Part II examines corporate liability under the law of nations and argues that corporations may be held liable under the ATS. Part III explains how the ATS is jurisdictionally compatible with international law. Part IV offers a corrective to the common choice of law mistakes made during ATS adjudication. Part V argues that Pfizer v. Abdullahi was a missed opportunity to clarify corporate aiding and abetting liability under the ATS. Part VI delves into the certiorari briefs submitted in Presbyterian Church of Sudan v. Talisman Energy. Finally, Part VII shows that concern over the alleged harms of ATS litigation is vastly exaggerated.

Keywords: alien tort statute, federal common law, customary international law, Sosa, Talisman, Kiobel, Pfizer, Khulumani, Sarei