Holding Multinational Corporations Accountable? Achilles\u27 Heels in Alien Tort Claims Act Litigation

For over 30 years, human rights, environmental and other plaintiffs’ attorneys have hailed foreign nationals and, in the last 15-20 years, multinational corporations, into U.S. District Courts to answer ATS claims against them, for torts wherever they have occurred, often in remote corners of the world. In cases such as Unocal, Royal Dutch and Blackwater, to name a few, attorneys have procured large settlements. With those multinationals as defendants and with larger settlements, however, have come more sophisticated and better equipped defense lawyers who have raised ancillary and adjective issues that have not been raised before, or at least inquired into in detail. This article discusses a few of them, such as choice of law, piercing the corporate veil, secondary liability, agency, and partnership or joint venture. Most recently, the crowning issue, whether corporations may be held at all under the ATS has come to the fore and, if answered in the negative, will bring things full circle, ending the heyday of ATS litigation