4 Transnat'l Legal Theory 1 (2012-2013)

handle is hein.journals/trnsletho4 and id is 1 raw text is: DOI: http://dx.doi.org/10.5235/20414005.4.1.1

A Process-Oriented Approach to Corporate
Liability for Human Rights Violations
Leora Bilsky and Natalie R Davidson'
Abstract
This article shifts attention from the search for a norm of corporate liability for human rights
abuses to an exploration of the process(es) through which corporate liability could be imposed.
Elaborating on Nancy Fraser's theory of 'abnormal justice', we argue that only by giving serious
attention to process can we begin to address the democratic deficit that characterises the cur-
rent globalisation era and is particularly manifest in struggles to hold multinational corporations
accountable. We further provide a conceptual matrix within which to develop processual models
of transnational civil corporate liability. This conceptual analysis is grounded in a study of the
Holocaust restitution litigation of the 1990s, in which Swiss banks and German corporations were
sued in US courts on grounds of tort, restitution and international law for their involvement in
Nazi crimes. We closely analyse and compare the Swiss and German cases in order to gain insights
about the procedural tools at our disposal to hold multinational corporations accountable for
human rights violations. Moreover, these cases provide concrete sites in which to explore the juris-
prudential continuities and transformations experienced by law in the move from the domestic to
the transnational context.
INTRODUCTION
International legal scholars have been preoccupied with the question of whether multi-
national corporations (MNCs) can be held liable for human rights violations under the
Alien Tort Statute (ATS).' This statute had been interpreted since 1980 to allow alien
Leora Bilsky is a Full Professor and Natalie Davidson is a PhD candidate, both at the Buchmann Faculty
of Law, Tel Aviv University, Israel. We thank the participants at the conference on 'Corporate Liability for
Human Rights Violations' held at Tel Aviv University in December 2012, as well as the anonymous reviewer
at TLT, for their helpful comments. We also thank Neli Frost for research assistance and Shani Shisha for
technical assistance. This article forms part of a book-length project on Holocaust restitution litigation
undertaken by Leora Bilsky, with the support of the David Berg Institute for Law and History, the Minerva
Center for Human Rights and the Ccgla Center for the Interdisciplinary Research of the Law, all at Tel Aviv
University, as well as the Israel Science Foundation. All websites accessed June 2013.
1 28 USC   1350, which grants federal courts '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'.

(2012) 4(1) TLT 1-43

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