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In his book, Michael Koebele examines the potential liability of transnational corporations under the Alien Tort Statute (also known as Alien Tort Claims Act) for violations of international law in connection with their operations and investments worldwide.

This report addresses the use of criminal sanctions to control corporate behavior—prosecutions both of corporations and of employees for actions taken on corporations’ behalf. The authors describe the current state of the use of criminal sanctions in controlling corporate behavior, describe how the current regime developed, and offer suggestions about how the use of criminal sanctions to control corporate behavior might be improved.

Since the mid-1980s, beginning with the unsuccessful Union Carbide litigation in the USA, litigants have been exploring ways of holding multinational corporations [MNCs] liable for offshore human rights abuses in the courts of the companies’ home States. The highest profile cases have been the human rights claims brought against MNCs (such as Unocal, Shell, Rio Tinto, Coca Cola, and Talisman) under the Alien Tort Claims Act in the United States. Such claims also raise issues under customary international law (which may be directly applicable in US federal law) and the Racketeer Influenced and Corrupt Organizations [RICO] statute. Another legal front is found in the USA, England and Australia, where courts have become more willing to exercise jurisdiction over transnational common law tort claims against home corporations. Furthermore, a corporation’s human rights practices were indirectly targeted under trade practices law in groundbreaking litigation in California against sportsgoods manufacturer Nike. This new study examines these developments and the procedural arguments (eg regarding personal jurisdiction and especially forum non conveniens) which have been used to block litigation, as well as the principles which can be gleaned from cases which have settled. The analysis is important for human rights victims in order to know the boundaries of possible available legal redress. It is also important for MNCs, which must now take human rights into account in managing the legal risks (as well as moral and reputation risks) associated with offshore projects.

In two decisions five years apart, the US Supreme Court tried to answer whether corporations are subject to suits for human rights violations under the Alien Tort Statute (ATS). In both decisions, the Court failed to answer that question, instead imposing other limitations on the ATS cause of action that disposed of the two cases. In 2013, the Supreme Court applied the presumption against extraterritoriality in 'Kiobel v Royal Dutch Petroleum', limiting the ATS cause of action to claims that 'touch and concern the territory of the United States'. In 2018, the Court held in 'Jesner v Arab Bank' that 'foreign corporations may not be defendants in suits brought under the ATS', leaving open the possibility of suits against US corporations.

The almost two decade-long bonanza of civil litigation concerning gross human rights violations committed by corporations under the US Alien Tort Statute 1789 was scaled back by the US Supreme Court in Kiobel v Royal Dutch Petroleum in April 2013. The court restricted the territorial reach of human rights claims against transnational corporations by holding that the presumption against extra-territoriality applied to the Act. Thus Shell, the Dutch/British defendant, and the role it played in the brutal suppression by the Nigerian military of the Ogoni peoples' protest movement against the environmental devastation caused by oil exploration, lay outside the territorial scope of the Act. Legal accountability must lie in a State with a stronger connection with the dispute. While this article briefly engages with the Supreme Court decision, its main focus is on the attitude of Western governments to the corporate human rights litigation under the ATS as articulated in their amicus briefs. In these briefs they objected to the statute's excessive extraterritoriality and horizontal application of human rights to artificial non-State actors. In these two respects corporate ATS litigation created significant inroads into the conventional State-centric approach to human rights and thus provided an opportunity for more effective human rights enjoyment. This article tests the validity of the objections of Western governments to corporate human rights obligations under the ATS against the norms of public international law and against the substantive demands arising out of the shortfalls of the international human rights enforcement.

The complete failure of the liability system - that is, the system by which injured persons recover money damages from those who injure them - is predicted using a systems/strategic analysis. The liability system operates according to 9 basic principles, through the entry and enforcement of judgments. The principles are so fundamentally a part of our culture that to change them is unthinkable, yet adherence to them renders the system vulnerable to defeat by a variety of judgment-proofing techniques. Computerization has reduced the costs of pursuing these strategies, making them cost effective for larger numbers of potential defendants. As judgment proofing spreads, the cultural and political barriers are declining, leading to wider use of the techniques and ultimately to system failure. None of the radical counterstrategies the system might employ, including shareholder unlimited liability, involuntary creditor priority, asset-provider liability, enterprise liability, mandatory insurance, and financial responsibility laws, is likely to be effective in preserving the system in anything like its current state.

BANANAS!* is a suspenseful court room drama that examines the intricacies and injustices of the global politics of food. Focusing on a landmark and highly controversial legal case pitting a dozen Nicaraguan banana plantation workers against Dole Food Corporation, BANANAS!* uncovers the alleged usage of a banned pesticide and its probable link to generations of sterilized workers. Central to both the film and case is Juan “Accidentes” Dominguez, a Los Angeles-based personal injury attorney who, although iconic within the Latino community for his ubiquitous billboard ads, is unquestionably facing the biggest case and challenge of his career. At stake in the classic David vs. Goliath story are the futures of generations of workers and their families, as well as the culture of global, multinational business. If successful, the case could rock the economic foundations of Dole, and could open the US courts to other global victims, representing a new day in international justice.

Indigenous peoples are often the victims of human rights violations at the hands of multinational corporations (MNCs). Since there are few avenues to ensure accountability for such violations, the US Alien Tort Claim Act (ATCA) has become one of the principal vehicles to ensure such liability. With varying degrees of success, ATCA has proven to be an attractive statute for ensuring accountability of MNCs. In recent years several cases have been lodged by indigenous peoples, including pioneering cases against corporations such as Texaco, Shell, Chevron and Rio Tinto. This article aims at analysing the prospects but also the limitations of such a national tort act to provide remedies for human rights violations to indigenous communities. In doing so the article provides a practical analysis on the strengths and weaknesses of using ATCA as a tool for human rights litigation against MNCs.

In recent articles in the Yale Law Journal and the Stanford Law Review, Professor Lynn M. LoPucki has sparked much academic discussion arguing that recent developments in corporate law have led to an erosion in the system of corporate liability, such that it might one day prove impotent. LoPucki has argued that transactions such as asset securitizations, sale-leasebacks, and corporate structures in which liabilities are placed in asset-poor subsidiaries are driving this change. One early critic to the LoPucki thesis, Professor James J. White, has argued that empirical data show no evidence of increasing use of judgment proofing techniques. In this article, Professor Steven L. Schwarcz joins this debate, arguing that an economic analysis of these transactions suggests that widespread use of these judgment proofing techniques is unlikely. A key distinction in the analysis, Schwarcz argues, is between arm's length and non-arm's length transactions. Arm's length transactions are unlikely to lead to judgment proofing because corporations will receive value-often cash-for the assets they sell. It is only by paying out this value in dividends that a corporation begins to judgment-proof itself. The theoretical possibility to take value away from future involuntary creditors through such transactions will rarely be realized because of the costs-taxes, negative publicity, personal and criminal liability-of entering into such agreements. By contrast, in non-arm's length transactions, corporate owners do have the incentive to create judgment-proof structures. However, these structures are not innovative, and they will continue to be well-regulated ex post by existing legal doctrines in bankruptcy, corporate law, tort law, and criminal law. Following this article are a response from Professor Lynn LoPucki, a comment by Professor Charles Mooney and a brief rejoinder from Professor Schwarcz.