After Jesner: The French Judiciary Takes Over, by Aleydis Nissen
Many studies discuss remediation over corporations that are at ‘home’ in the forum state for human rights violations committed abroad, but some of the literature also discusses claims that are brought in courts in respect of foreign activities against foreign corporations. Also in the latter type of lawsuit, so-called ‘extraterritorial’ remediation has plenty of advantages and drawbacks. In my new book, I discuss that opportunities for bringing the latter type of cases on the basis of the Alien Tort Statute have become limited in the United States. But the French NGO Sherpa has found opportunities to bring such cases on the basis of the French Code de la Consommation (Consumption Code).
Notoriously, the openings that existed in the United States to bring extraterritorial cases on the basis of the Alien Tort Statute have been largely shut down by the United States Supreme Court in Jesner v Arab Bank PLC in 2018. This Statute – originally intended to combat piracy – contains a legal basis for United States district courts to ‘have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States’. The petitioners alleged that they (or the persons on whose behalf they asserted claims) were injured or killed by ‘Hamas and other terrorist groups’ in the Middle East and that those acts were in part caused or facilitated by respondent Arab Bank PLC. The alleged connections to the forum state were transactions in a New York-based branch of this bank and a Texas-based charity, Holy Land Foundation for Relief and Development, that would allegedly be affiliated with Hamas. The Supreme Court judged that ‘foreign corporations may not be defendants’ in suits brought under the Alien Tort Statute. The Court stressed that there was a ‘relatively minor connection between the terrorist attacks at issue in this case and the alleged conduct in the United States’. In addition, the Court determined that ‘any imposition of corporate liability on foreign corporations for violations of international law must be determined in the first instance by the political branches of the Government’. In my book, I set out the arguments in favor and against rejection by courts in cases involving foreign corporations because of political considerations at length.
In the book, I furthermore discuss an opening in French law that is being tried and tested by Sherpa. This French civil society organization has partnered with other organizations to argue that French citizens are victims of ‘misleading commercial practices’ as defined in Article L121-1 of the Code de la Consommation since 2013. They reason that French and foreign corporations that sell in France can break this article, when they claim that they act with social responsibility and respect for human rights, despite there being proof that the opposite is true. Sherpa has filed a series of complaints against the French retailer Auchan and the South Korean conglomerate Samsung and its French subsidiary on the basis of Article L121-1 of the Code de la Consommation.
Aleydis Nissen is an FWO and F.R.S-FNRS researcher at Leiden Law School and the Free Universities of Brussels. Her book The European Union, Emerging Global Business and Human Rights will be published by Cambridge University Press this month. The book website is www.emergingbhr.eu and the author’s website www.aleydisnissen.com