Edited by Paul Martin, Sadeq Z. Bigdeli, Trevor Daya-Winterbottom, Willemien du Plessis and Amanda Kennedy
Chapter 14: Is there relief for transnational harm?
As multinational corporations expand, so too does the potential for transnational harm. When foreign plaintiffs seek relief in American courts for transnational harm implicating such corporations, these courts have repeatedly dismissed claims under the doctrine of forum non conveniens. Foreign plaintiffs have also turned to a centuries-old statute, the Alien Tort Statute (‘ATS’), to try to bring their claims against multinational corporations under the jurisdiction of American courts. In 2013, however, the Supreme Court of the United States in Kiobel v Royal Dutch Petroleum Co. severely limited the application of the ATS to corporations for acts of harm occurring outside of the United States. Writing for the majority in Kiobel, Chief Justice John Roberts explained: ‘[c]orporations are often present in many countries, and it would reach too far to say that mere corporate presence suffices’ to bring a corporation within the scope of the Alien Tort Statute. Admittedly, the defendant corporations in Kiobel were not American; however, Chief Justice Roberts’ majority opinion focused on the presumption of extraterritoriality, not the state of incorporation of the defendants. Against the backdrop of expanding multinational corporations, incorporated both in the United States and abroad, as well as an increasingly restrained American judiciary, is there relief for foreign plaintiffs who have suffered transnational harm facilitated or perpetrated by such corporations? To answer this question, I begin by explaining the position of restraint that the American judiciary has historically adopted in cases involving foreign plaintiffs.
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