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Home Posts tagged "corporate liability"

The Road Less Traveled: How Corporate Directors Could be Held Individually Liable in Sweden for Corporate Atrocity Crimes Abroad

Published on November 13, 2018        Author:  and
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On 18 October 2018, the Swedish Government authorized the Swedish Prosecution Authority to proceed to prosecution in a case regarding activities of two corporate directors within Swedish oil company Lundin Oil, and later within Lundin Petroleum, in Sudan (now South Sudan) between 1998 and 2003. The company’s chief executive and chairman could be charged with aiding and abetting gross crimes against international law in accordance with Chapter 22, Section 6 of the Swedish Penal Code. Charges of such kind carry a sentence of up to ten years or life imprisonment. The case has the potential of furthering accountability of corporate actors for their involvement in international crimes abroad.

Lundin’s alleged involvement in international crimes in South Sudan

Sudan was ravaged by a non-international armed conflict which lasted from 1983 until 2005, between the Government of Sudan and the Sudanese People’s Liberation Army (SPLA) – as well as a variety of other armed groups. Meanwhile, beginning with the signing of contracts in 1997, Lundin formed a consortium which carried out oil exploration and production in an oil concession area located south of Bentiu on the West Bank of the White Nile in Western Upper Nile/Unity State called Block 5A in the southern part of the country. According to a report by the European Commission on Oil in Sudan (ECOS), the oil exploration brought exacerbated conditions while setting off a battle for control of the disputed region, leading to thousands of deaths and the forced displacement of local populations – with the Nuer people being the most affected. Additionally, reported crimes against civilians by the Sudanese army as well as associated militias of both parties, include indiscriminate attacks, unlawful killing, rape, enslavement, torture, pillage and the recruitment of child soldiers. The consortium’s interaction with local counterparts has come under criminal investigation after the ECOS report was submitted to Swedish prosecutors in 2010. The long time span of the investigation is at least in part due to on-going conflict in the region in 2013, when the International Office of the Prosecutor had scheduled its visit to South Sudan. Furthermore, the case came with some political connotations since Carl Bildt, former Minister of Foreign Affairs of Sweden, had served as a member of the Board of Directors of Lundin from 2000 to 2006.

In the United States, a case comprised of a similar set of facts was brought by the Presbyterian Church of Sudan against the Republic of Sudan and Talisman Energy Inc., a Canadian oil company, which commenced its activities in the area one year after Lundin. The Court of Appeals for the Second Circuit held in a judgment of 2 October 2009 that the claimants had failed to establish that Talisman “acted with the purpose to support the Government’s offences”. Under the Alien Tort Claims Act (ATCA) the plaintiffs needed to show that “Talisman acted with the – purpose – (one could argue that such mens rea standard had been set unreasonably high) to advance the Government’s human rights abuses”. On 15 April 2010, the plaintiffs petitioned for a writ of certiorari to the Supreme Court, supported by an amicus curiae submitted by Earth Rights International on 20 May 2010, asking to revert the decision of the Second Circuit. On October 2010 the Supreme Court declined to grant certiorari and respectively to hear the appeal in this case. In contrast to the rather broad universal and extraterritorial jurisdiction provided for in the Swedish Penal Code, the Supreme Court decision in Kiobel v. Royal Dutch Petroleum, Co. remarkably restricted the application of the ACTA in cases involving allegations of abuse – outside – the United States by finding that presumptively it does not apply extraterritorially. Read the rest of this entry…

 

Corporate Liability Debate still Alive and Kicking in US Courts

Published on May 30, 2016        Author: 
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While various bodies of the UN continuously work on the issue of the human rights law obligations of multinational corporations, the US courts have been grappling with the question as to whether such entities can be held liable for violations before domestic courts. While some observers lamented the death of the corporate liability debate following the 2013 Supreme Court decision Kiobel II, it appears that the discussion is still very much alive. Continuous disagreement among US courts shows that corporate liability for human rights violations is a complicated issue, as a matter of both domestic and international law.

The Arab Bank Case

In December 2015, a panel of the US Court of Appeals (Second Circuit) ruled on the case of Arab Bank, which concerned claims brought against Arab Bank PLC for its alleged role in financing and facilitating armed attacks that took place in Israel between January 1995 and July 2005. The plaintiffs alleged that Arab Bankʹs involvement with payments to the families of ‘martyrs’ incentivized and encouraged suicide bombings and other killings that harmed the plaintiffs. In its judgment, the Second Circuit confirmed the position taken in Kiobel I (2010), in which it held that corporations cannot be held liable under the Alien Tort Statute (ATS, 28 U.S. Code § 1350).

Arab Bank was heard by a different panel of the same Court of Appeals that had issued Kiobel I. The panel struggled in deciding whether to follow the Court’s own precedent (Kiobel I) or the subsequent Kiobel II decision of the Supreme Court. In that much-debated decision, the Supreme Court affirmed Kiobel I, but on different grounds, namely that a presumption against extraterritoriality applies to ATS cases, without discussing the original question of corporate liability. The Arab Bank panel identified several ways in which Kiobel II had “cast a shadow on Kiobel I”. It nevertheless decided to follow its own precedent in Kiobel I and left it to “either an en banc sitting of [the Second Circuit] or an eventual Supreme Court review to overrule Kiobel I”.

The latest development occurred on 9 May 2016, when seven of the thirteen judges of the Second Circuit rejected a petition for an en banc review of the Arab Bank case. Read the rest of this entry…