Jesner v. Arab Bank, PLC. (16-499)
argument 16-499Jesner v. Arab Bank, PLC.
Supreme Court of the United States
1h 0m
6 speakers
8 chapters
transcribed 5 days ago
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What is the Supreme Court’s interpretation of the Alien Tort Statute’s presumption of corporate liability?
We'll hear argument next in Case 16-499, Jesner v. Arab Bank. Mr. Fisher.
Mr. Chief Justice, and may it please the Court. This Court made clear in Keovil that the ATS should be construed first and foremost according to the ordinary rules of statutory construction. And applying those tools here yields a straightforward result. The traditional presumption that corporations can be held liable in civil actions for torts controls here. Now, the bank's principal response is to say that the ATS sometimes can create foreign relations issues when cases are brought against corporations. But for two reasons, that objection does not overcome the strong presumption of tort liability here. First, some ATS cases do not involve foreign relations at all. Take piracy, for example. So the foreign relations argument cannot justify the categorical rule the Second Circuit has laid down in this area here.
And indeed, a categorical bar against corporate liability would itself create foreign relations problems along the lines the ATS was designed to put to practice. solve. And second, even when there are foreign relations issues, and perhaps this is an even more important point, there are many other doctrines readily available to courts to directly and effectively deal with those issues. There's no need to use the mismatch theory of no corporate liability when you have tools available under the common law to address the arguments when they arise. Take the extraterritoriality holding of Kyobo first and foremost. As the court stressed in that case, the theory of the anti-exoterritoriality presumption is to keep the U.S.
out of foreign relations friction by applying its law overly aggressively to incidents elsewhere in the world. Now, after Kyobo, I would suggest that that extraterritorial reality holding has had its intended effect. There are many statistics cited on the other side about the number of ATS suits that have been brought over the past couple of decades. But the relevant question for this Court is, what does the landscape look like now in the post-Kyobo world? And the Chamber of Commerce has actually done a study on this. And that study noted that at the time of Kyobo, there were 40 cases pending against corporations. In the two years after Kyobo, Over 70 percent of those cases were dismissed on extraterritoriality grounds, and another 10 percent were dismissed for other reasons.
How
about Dambler?
Pardon?
Dambler, our personal jurisdiction case about corporations.
Yes. We only sue
them at their corporate headquarters or principal place of business. Will that take care of most of the next 30
percent? Well, that would take care of general jurisdiction claims. Of course, here we have a specific jurisdiction claim. And the bank, because of its presence in New York, has never even made a personal jurisdiction argument. But yes, Justice Sotomayor, that would be another tool available to district courts. And so now what you have is a very, very small universe of cases, a manageable universe of cases, one that makes the U.S. position in this respect very much like other courts in the world, particularly our close allies in Europe and otherwise in North America, as a comparative law scholar's brief points out. And there's no reason whatsoever to have this corporate liability bar that has no basis in the text.
I'm sorry. Where else in the world would this type of action be brought against a corporation or almost really against anyone? I'm concerned about the foreign entanglement issue. I mean, we passed this statute to avoid foreign entanglements because we wanted to provide a forum for someone like the French ambassador in the Longchamp affair. But I'm wondering if extending it to corporate liability is, in fact, going to have the same problematic result of increasing our entanglements as it obviously has here with respect to the government of Jordan.
Well, I think you asked the first question is where else could lawsuits like this be brought. At pages 43 and 44 of our blue brief and at pages 15 through I believe it's about 19 of the comparative law scholars brief, there's a survey of other jurisdictions in the world.
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Chapters
8 chapters
1
What is the Supreme Court’s interpretation of the Alien Tort Statute’s presumption of corporate liability?
0:00–7:06
2
How do the parties argue that foreign‑relations concerns should not block corporate liability under the ATS?
7:06–14:37
3
What role do extraterritoriality doctrines and the Kyobo decision play in shaping ATS liability?
14:37–23:05
4
Why do the advocates cite comparative‑law studies and international treaties when discussing corporate responsibility?
23:05–31:25
5
How does the debate address the distinction between individual and corporate defendants in international law?
31:25–39:23
6
What historical context from 1789 does the Court consider when interpreting the ATS’s purpose?
39:23–47:18
7
How do the parties propose limiting corporate liability to high‑level officers versus all employees?
47:18–53:31
8
What are the potential diplomatic and practical consequences of allowing ATS suits against foreign banks like Arab Bank?
53:31–1:00:20