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83 Notre Dame L. Rev. 505 (2007-2008)


Corporate liability for human rights abuses is one of the most important developments in current international law and practice. With the advent of human rights litigation against corporations, there is now the prospect of a deep-pocket defendant that is complicit in grave human rights abuses, subject to personal jurisdiction, and not immune from suit. Indeed, if a corporation is accused of "aiding and abetting" human rights abuses, this is all but a concession that the corporate actor is not the principal wrong-doer. It is of course possible that this controversial trend toward corporate responsibility may reflect a genuine concern about corporate abuse of power. But more likely it reflects an abiding frustration that the primary perpetrators–sovereigns–are beyond the reach of most victims. If victims cannot pursue claims against the principal, they will resign themselves to pursue claims against those who aid and abet.

How have we come to this state of affairs, in which the corporation is pursued while the sovereign evades punishment? Why should the corporate accomplice alone be found liable if the sovereign is the primary malfeasor? For the first time in scholarly literature, this Article suggests an alternative approach, that corporations have existing tools to remedy the situation, drawing on principles derived from human rights, contract law, and arbitration. The essential idea is that if a corporation is found liable for aiding and abetting human rights abuse, it may invoke contractual provisions in the agreement with the sovereign to arbitrate the question of shared responsibility. While the victims may not pursue the sovereign, there is no impediment for a corporation that is found liable to pursue the sovereign in arbitration to secure its share of liability, either in the form of contribution or indemnification. In short, human rights litigation against the corporation could lead to "who pays" arbitration against the sovereign.


Reprinted with permission of the Notre Dame Law Review.



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