AGORA: REFLECTIONS ON KIOBEL - UNSHACKLING FOREIGN CORPORATIONS: KIOBEL 's UNEXPECTED LEGACY

摘要

The Supreme Court's ruling in Kiobel v. Royal Dutch Petroleum Co. disfavors American corporations. While largely unshackling foreign corporations from the risk of being haled before an American court to answer for human rights abuses abroad, the decision keeps American corporations constrained by human rights law. This inconsistency exists because application of the Alien Tort Statute (ATS), as announced in Kiobel, turns on whether a corporation's actions "touch and concern" the United States. American corporations are simply far more likely to satisfy that standard than foreign corporations. While Kiobel appears to favor corporate defendants over human rights plaintiffs, the reality is more complicated: Kiobel favors foreign corporations over both human rights plaintiffs and American corporations. Kiobel does not spell the death of human rights litigation in U.S. courts, but rather the death of U.S. human rights litigation against foreign corporations.