Reforming International Human Rights Litigation against Corporate Defendants after Jesner v. Arab Bank

Abstract

In April 2017, the U.S. Supreme Court, in Jesner v. Arab Bank, denied terror victims in Israel access to U.S. courts, holding that foreign corporations may not be sued under the Alien Tort Statute (ATS). The petitioners alleged that Arab Bank, a Jordanian financial institution, had facilitated acts of terrorism by maintaining bank accounts for known jihadists, and that it had used its New York branch to clear Dollar transactions and launder money for a US-based charity said to be affiliated with Hamas. The Majority argued that courts should not use the ATS to create new private rights of action, but should leave this task to the legislator. The decision is said to deal the deathblow to U.S. Human Rights litigation, but as this article argues, seems a logical consequence of the Supreme Court’s latest restrictions on personal jurisdiction over foreign corporate defendants and a growing concern to respect the sovereignty rights of foreign states. It confirms a trend towards more judicial reticence and, in this regard, suggests an increasing convergence of U.S. and foreign attitudes towards judicial discretion as well as international jurisdiction rules. However, on substance, the decisions leads to significant jurisdictional gaps to hold multi-national corporations accountable for the violation of international human rights. Based on a comparative analysis of EU procedural and substantive rules, this article makes suggestions for a harmonized legal regime to judge foreign corporations’ liability for human rights violations before domestic courts.