In its two most recent decisions regarding the Alien Tort Statute (ATS)-Jesner v. Arab Bank and Kiobel v. Royal Dutch Petroleum-the US Supreme Court failed to answer the specific question upon which it granted certiorari: whether the ATS permits suit against corporate defendants. These two cases reveal only that the ATS does not permit suits against foreign corporate defendants or suits for claims arising from conduct that takes place outside of the US. To frustrate the ATS saga further, the fractured Court in Jesner expressly declined to resolve the question whether international or domestic law should govern corporate liability. And only the plurality even entertained the issue that was central to the lower court’s reasoning: whether the ATS required a customary international law norm of corporate liability or, instead, allowed plaintiffs to bring tort claims ipso facto under federal common law. The inarticulation leaves a gap in international law that the Supreme Court would do well to fill. The question has begun to percolate among the lower federal courts, and it has emerged in a case before the Canadian Supreme Court as well. (Nevsun Res. v. Araya, 2018 CarswellBC 1552 (Can.) (WL) (granting petition for review)).
The question whether international or domestic law should govern the scope of corporate liability for violations of international human rights is plainly a choice-of-law question. Yet the ATS canon contains very little framing in this respect. This Note fills that gap by examining the issue with the analytical toolkit of conflicts law. Namely, it discusses how courts and litigants have borrowed choice-of-law concepts to characterize the question, and how that characterization influences outcomes. After an assessment of the state of debate, this Note argues that international law applies to ATS corporate liability and permits suit against a corporate defendant. Vis-a-vis general principles, an international law choice-of-law mechanism refers the question back to domestic law. The domestic court may then exercise its authority under domestic law to impose liability on a corporate defendant, if it so chooses. This reference back to the domestic system, in choice-of-law parlance, is known as renvoi.