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Symposium Explores Corporate Liability for Human
Rights Violations
International Panels Offer Expertise on Range of Subjects

Dec. 13, 2007 – As the global economy expands, corporations and other business entities face new challenges under national and international law. One of the thorniest issues concerns corporations’ responsibilities under international law for their activities at home and abroad. On Nov. 16, 2007, the Dennis J. Block Center for the Study of International Business Law and the Brooklyn Journal of International Law co-sponsored “Corporate Liability for Grave Breaches of International Law.” The symposium featured distinguished speakers from around the world who analyzed corporate criminal and civil liability for human rights abuses and other grave breaches of international law.

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speakers and agenda

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that will be published in the Vol. 33 Issue 3 of the Brooklyn Journal of International Law, forthcoming Spring 2008.

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The first panel, moderated by Brooklyn Law School Professor Anita Bernstein, focused on analyzing the Alien Tort Statute (ATS) in the era following Sosa v. Alvarez-Machain. Sosa is a controversial 2004 U.S. Supreme Court decision that limited the applicability of the ATS, a part of the 1789 Judiciary Act that gives federal district courts jurisdiction over tort claims brought by aliens who allege certain human rights violations. A lively debate over how to interpret Sosa and the ATS ensued among the panelists, which included Professor Beth Stephens of Rutgers School of Law-Camden, who helped litigate the first successful modern claim under the statute in the 1980 Filartega case; Professor Julian Ku of Hofstra University School of Law, who challenged the assumption that corporations can be held liable for violations of customary international law; and Dr. Nicola Jägers of Tilburg University, who gave a presentation about the prospect of civil liability for corporate human rights violations in the Netherlands. As the commentator on the panel, Professor William Dodge of the University of California Hastings College of the Law argued that the Sosa Court had provided a flexible modern approach to the two century old ATS, thus succeeding in its efforts “to translate a very old statute.”

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The second panel addressed how to apply the criminal concept of “aiding and abetting” in tort litigation, which Brooklyn Law School Professor Maryellen Fullerton identified as one of the “hottest and most heavily litigated issues in this field.” Professor Anthony Sebok of the Benjamin N. Cardozo School of Law addressed the choice of law analyses utilized by recent federal appellate opinions that have applied aiding and abetting concepts in cases involving human rights abuses. In response to a comment from the audience suggesting that a workable standard of aiding and abetting could be determined by looking to the “lowest common denominator” that exists among civilized nations, Sebok remarked that the punitive and deterrence functions of the U.S. tort law system fundamentally distinguish it from European conceptions of private law. The panel also included Professor Anita Ramasastry of the University of Washington School of Law, co-author of a comparative study of corporate liability standards in sixteen countries; and Dr. Jonathan Clough of the Faculty of Law at Monash University in Melbourne, Australia, who outlined three methods of imposing criminal liability on a parent corporation for the illegal conduct of its subsidiary.

Participants on the third panel explored mechanisms other than tort law for dealing with grave breaches of international law, offering divergent points of view concerning how to punish corporations that violate social responsibilities or laws. Brooklyn Law School Professor Samuel Murumba moderated the discussion, in which Professor Ralph G. Steinhardt of The George Washington University Law School discussed market-based “human rights entrepreneurialism,” domestic regulation under such statutes as RICO and the Foreign Corrupt Practices Act, and guidelines promulgated by NGOs as three forms of “soft law” that help safeguard human rights. Professor Cynthia Williams, an expert on corporate social responsibility at the University of Illinois College of Law, discussed the developing scope of corporate directors’ duties of care and loyalty to shareholders, and Professor Ronald Slye of Seattle University School of Law spoke about various measures of punishment for corporate criminal liability. Finally, Lee A. Casey, a partner at Baker Hostetler who formerly served in the Office of Legal Counsel of the U.S. Department of Justice, pointed out that imposing liability on multinational corporations has a potential cost – it could run counter to the State Department’s interest in infusing foreign investment into certain countries with troubling human rights records.

Articles from the symposium will be published in Volume 33 of the Brooklyn Journal of International Law (2008).

By Max Shterngel ’09, an International Business Law Fellow.

This page last modified on: February 05, 2008.