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Home Archive Volume 65 Volume 65, Issue 1 COMMENT: If the Question is Chocolate-Related, the Answer is Always Yes: Why Doe v. Nestle Reopens the Door for Corporate Liability of U.S. Corporations Under the Alien Torts Statute
COMMENT: If the Question is Chocolate-Related, the Answer is Always Yes: Why Doe v. Nestle Reopens the Door for Corporate Liability of U.S. Corporations Under the Alien Torts Statute

By Amanda A. Humphreville | 65 Am. U. L. Rev. 191 (2015)

 

Corporate liability for U.S. corporations that commit violations of international norms overseas is a contentious issue among several circuit courts. Because the Supreme Court in Kiobel v. Royal Dutch Petroleum overlooked the corporate liability question and instead applied the presumption against extraterritoriality to the Alien Tort Statute, many circuit courts use this presumption as a bright-line rule, precluding corporate liability of U.S. corporations where the alleged conduct does not occur in the United States.

However, corporate liability and the presumption against extraterritoriality are distinct analyses. The Ninth Circuit recognized this in Doe I v. Nestle U.S.A., Inc. when it iterated a corporate liability analysis to be applied separately, but in addition to, the analysis of where the conduct occurred. The court created a norm-by-norm liability analysis that evaluates the specific norms alleged to have been violated to determine if they are applicable to corporations. The corporate liability analysis ensures that corporations are not given special treatment, that the United States does not become a safe harbor for violators, and that the reasons for passing the Alien Tort Statute are not subverted. Importantly, the Ninth Circuit’s norm-by-norm analysis shows that international norms are applicable to corporations and gives plaintiffs hope of recovery.

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