Jesner Oral Arguments, Justice-by-Justice

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Other Writing
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October 30, 2017

Ed. Note: This article is the latest in our series on the U.S. Supreme Court case Jesner v. Arab Bank, a case that is slated to resolve the question of whether corporations can be sued under international law for human rights violations and terrorism. Oral arguments were held October 11th.

Further to our previous coverage of the oral arguments (transcript is here) in Jesner v. Arab Bank (see Bill Dodge’s terrific contribution followed by Ed Swaine’s elaboration), below I summarize, Justice-by-Justice, some of the key issues raised by Supreme Court and the responses of the parties’ lawyers and the United States government as amicus curiae.

Justice Sonia Sotomayor evinced a very sophisticated understanding of international law with her questions. She pushed former Solicitor General Paul Clement, representing the Arab Bank, hard on the question of whether or not it was necessary for plaintiffs to affirmatively demonstrate the existence of an international norm for holding corporations civilly liable for human rights abuses and terrorism.  She turned the question on its head a bit when she asked if it was also necessary to demonstrate the existence of an international norm allowing for natural persons to be civilly liable, which is exactly what the Alien Tort Statute (ATS) accomplishes.  Clement did not have a ready response and simply returned to the defendants’ common reframe that international law speaks to the question of who or what kind of actor can violate international law. 

To Assistant Solicitor General Brian Fletcher, representing the United States on behalf of neither party, Justice Sotomayor asked about whether the United States should in fact be worried about the foreign policy implications of such suits, as defendants argue. Fletcher responded that the way to deal with any risk of foreign entanglement is through undertaking the extraterritoriality analysis called for by Kiobel v. Royal Dutch Petroleum.  He also noted that there may be similar foreign policy implications for suits involving corporate officers and principals, which would presumably replace suits against the corporate entity itself if the Court rules for defendants in Jesner.  So, limiting the ATS to suits against natural persons will not eliminate these concerns.  To Clement, she queried whether any potential friction with the state of Jordan would be lessened by suits brought under the Anti-Terrorism Act (ATA) as compared with suits under the ATS? Clement responded that under the ATS, the defendant is labeled a hostis humani generis—enemy of all mankind—a sobriquet that would be of greater concern than being considered a financière of terrorism. 

Read the full post at Just Security