The Inconsequential Choice of Law Question Posed by Jesner v. Arab Bank

Abstract

In Jesner v. Arab Bank, the United States (U.S.) Supreme Court has taken up the question of whether victims of human rights abuses can sue corporations and other legal entities for violations of the law of nations under the Alien Tort Statute (ATS). In Kiobel v. Royal Dutch Petroleum Co., the Second Circuit ruled that they cannot because — by its analysis — international law does not affirmatively provide for corporate tort liability. By contrast, all the other circuits to consider the issue have ruled or assumed that such cases can go forward in U.S. courts, yielding a decidedly lopsided circuit split. Inherent to the dispute at hand is an a priori choice-of-law issue: Should courts look to international law or federal common law to resolve the question presented? While the Supreme Court established that international law provides the elements of plaintiffs’ substantive cause of action in Sosa v. Alvarez-Machain, the Court did not specify which body of law governs ancillary rules of decision. As such, some judges have looked to federal common law (or to U.S. choice of law rules) to answer these questions that go beyond the strict contours of the plaintiff’s cause of action. Although contentious, this choice-of-law debate proves to be inconsequential when it comes to the availability of corporate tort liability, given that both bodies of law point in the same direction and hand victory, at least in this round, to the plaintiffs. In other words, regardless of whether courts look to U.S. law or to international law, the ATS supports corporate tort liability.