Translating Unocal: The Expanding Web of Liability for Business Entities Implicated in International Crimes

Abstract

The Ninth Circuit ruled that a corporation could be held liable under the federal Alien Tort Claims Act for its complicity in a violation of international criminal law occurring outside the U.S. (Doe I v. Unocal Corp., 395 F.3d 932 (9th Cir. 2002)). Since then, litigants have filed increasing numbers of such cases.

These cases raise two questions: (1) Is the United States the only country that provides judicial accountability for business entities involved in international crimes abroad? and (2) How are other countries "translating" the basic kinds of accountability that Unocal recognized into their own legal systems?

This Article attempts to answer these questions by presenting the results of a comparative law survey involving sixteen countries that invited lawyers and legal scholars to examine questions relating to the status of international criminal law in each country. Their responses examine the incorporation into domestic penal codes of international criminal law from the Rome Statute of the International Criminal Court and other international covenants; describe applicable concepts of third-party liability; and evaluate the status of corporate liability under domestic penal codes. The responses reveal other sources of criminal liability for illicit business conduct abroad, such as bribery of foreign officials, money laundering, and dealing in stolen property. Finally, they provide analyses of the laws and legal customs relating to the rights of victims to access civil courts in the various countries in search of compensation and other remedies. The responses present compelling evidence of the existence of what has been termed an emerging transnational "web of liability" for business entities implicated in international crimes. Since the sixteen countries in the survey represent both civil and common law traditions, parties and nonparties to the ICC, and a wide geographic range, we believe conclusions reached may be extrapolated more broadly.

Keywords: Alien Tort Claims Act, Alien Tort Act, international criminal law, corporate liability, multinational corporations, human rights, comparative law